Ishac v Byblos Promotions Pty Ltd
[2024] NSWPIC 130
•18 March 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Ishac v Byblos Promotions Pty Ltd [2024] NSWPIC 130 |
| APPLICANT: | Jean Ishac |
| RESPONDENT: | Byblos Promotions Pty Limited |
| MEMBER: | John Turner |
| DATE OF DECISION: | 18 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment compensation pursuant to section 66; accepted injury to lumbar spine on 15 February 2021; alleged injury to the cervical spine and right shoulder disputed; section 4; Kooragang Cement Pty Ltd v Bates, Ariton Mitic v Rail Corporation of NSW, and Federal Broom Co Pty Ltd v Semlitch considered; Held – that the applicant sustained injury to his cervical spine and right shoulder in the course of his employment with the respondent on 15 February 2021. |
| DETERMINATIONS MADE: | The Commission determines: 1. That the applicant sustained injury to his cervical spine and right shoulder in the course of his employment with the respondent on 15 February 2021. The Commission orders: 2. I remit this matter 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: 15 February 2021 – personal injury. (b) Body systems / parts: (i) lumbar spine; (ii) cervical spine, and (iii) right upper extremity (shoulder). (c) Method of Assessment: whole person impairment 3. The documents to be reviewed by the Medical Assessor are: a. Application to Resolve a Dispute and attached documents; and b. Reply and attached documents. |
STATEMENT OF REASONS
BACKGROUND
Mr Jean Ishac, the applicant, is a working Director of Byblos Promotions Pty Limited, the respondent.
The applicant has brought proceedings in the Personal Injury Commission (Commission) in which he alleges that he sustained injury to his lumbar spine, cervical spine and right shoulder whilst in the course of his employment with the respondent on 15 February 2021.
The applicant claims compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for impairment of his lumbar spine, cervical spine and right upper extremity (shoulder).
The respondent does not dispute that the applicant sustained injury to his lumbar spine. The respondent does however dispute that the applicant suffered injury to his cervical spine and right shoulder on 15 February 2021 as alleged.
It is the applicant’s evidence that he sustained injury on 15 February 2021 whilst replacing an old computer server which was located about one metre above the floor in the middle of a rack.
ISSUES FOR DETERMINATION
The following issues remain in dispute:
(a) whether the applicant suffered injury to his cervical spine and/or right shoulder arising out of or in the course of his employment with the respondent;
(b) whether the applicant’s employment was a substantial contributing factor to the alleged injury to the cervical spine and/or right shoulder, and
(c) whether employment was the main contributing factor to a disease injury of the cervical spine and/or right shoulder.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for conciliation conference/arbitration hearing before me on 22 February 2024. Mr Bill Carney, counsel, instructed by Mr Sher Afgan, solicitor, appeared for the applicant, who was present. Mr Greg Young, counsel, instructed by Ms Christine Bellemore, solicitor, appeared for the respondent. The proceedings were conducted in-person. 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) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply and attached documents.
Oral evidence
Neither party sought leave to adduce oral evidence.
SUBMISSIONS
The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties.
FINDINGS AND REASONS
Consideration and findings
The applicant alleges that he sustained injury to his lumbar spine, cervical spine and right shoulder whilst in the course of his employment with the respondent on 15 February 2021.
The respondent does not dispute that the applicant sustained injury to his lumbar spine. The respondent does dispute that the applicant sustained injury to his cervical spine and right shoulder as alleged.
The applicant bears the onus of proving injury.
Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
I am of the view and find that the applicant did sustain injury to his cervical spine and right shoulder whilst in the course of his employment with the respondent on 15 February 2021 for the following reasons.
There is no dispute that the applicant sustained injury in the course of his employment on 15 February 2021 as liability has been accepted in respect to injury to the lumbar spine. The issue in dispute is whether injury was also sustained to the cervical spine and right shoulder at the same time.
It is the applicant’s evidence that following sustaining injury on 15 February 2021 he called his doctor who told him to take some Panadol and then see how he went. It is also the applicant’s evidence that the next day he attended on his doctor as he had been unable to sleep, and his doctor referred him for a CT scan.
A CT scan was performed of the applicant’s lumbar spine on 26 February 2021 with Dr Ken Ho reporting to the applicant’s general practitioner (GP), Dr Chwah, on the scan. Whilst there must have been some contact between the applicant and Dr Chwah’s medical practice for the CT scan to be requested, the clinical notes of Dr Chwah do not record any attendances between 29 January 2021 and 1 March 2021 and I have been unable to locate a copy of the referral for the CT scan within the documents before me.
The applicant appears to have next attended on a doctor on 1 March 2021 when he attended on Dr Chwah complaining of low back pain which was radiating into his left lower limb. At the time of the examination Dr Chwah was in possession of the results of the CT scan of the lumbar spine. The clinical note of the attendance contains no mention of the applicant’s neck or right shoulder.
The applicant next attended on a doctor on 22 March 2021 when he presented to Dr Eric Lim of the Workers Doctors medical practice. Dr Lim records that the applicant initially presented for an injury to his back however significantly Dr Lim in his initial assessment report dated 22 March 2021 records the following history:
“On Monday, 15 February 2021 Mr Ishac reported that whilst at work he suffered Neck/Shoulder/Back injuries sustained whilst moving and transporting servers weighing 25kg each for relocation.”
Dr Lim relevantly reported the applicant’s symptomatology as including neck pain and stiffness, bilateral shoulder pain as well as lower back pain with referred pain to the left leg. On examination Dr Lim noted that the applicant had used a walking stick to mobilise since the injury, a sitting tolerance of 10-15 minutes and standing and walking tolerances of five minutes. The applicant was also observed to have a decreased range of motion secondary to pain of the back, neck and both shoulders. In addition to the injury to the lumbar spine Dr Lim diagnosed an aggravation of the cervical spine and both shoulders.
On 22 March 2021 Dr Lim referred the applicant for:
(a) an MRI of the cervical spine noting in the referral that the applicant’s neck pain had been aggravated;
(b) physiotherapy for ongoing neck, shoulder and lower back pain with restricted movement, and
(c) the expert opinion of Dr Bhisham Singh, orthopaedic and spinal surgeon, for ongoing neck and lower back pain with restricted movement.
The respondent submits that the lack of any recorded complaint in respect to the neck and right shoulder in the clinical note of Dr Chwah for the applicant’s attendance on 1 March 2021 does not support that the applicant sustained injury to his cervical spine and right shoulder as alleged. That if the applicant had sustained an injury to his right shoulder and cervical spine he would have reported it to Dr Chwah, as Dr Chwah had been the applicant’s GP for many years and had treated the applicant for prior neck and shoulder complaints. The respondent also submitted that if the applicant had reported any injury to his right shoulder and/or cervical spine Dr Chwah would have made a record of that complaint due to the doctor’s previous involvement in treating the applicant for prior neck and shoulder conditions.
In the respondent’s submission the first mention of any injury to the neck and right shoulder appears with the examination of Dr Lim on 22 March 2021 however Dr Lim records that the applicant attended for a back injury and in the respondent’s submission the reference to the neck and shoulder injuries is a catch all comment on a background of the applicant having prior neck and right shoulder complaints and without Dr Lim providing any explanation as to how the neck and right shoulder conditions are related to the incident on 15 February 2021.
I accept that the first recorded report of any neck and right shoulder injury being sustained on 15 February 2021 is with the applicant’s attendance of Dr Lim on 22 March 2021. I also accept the respondent’s submission that it is unlikely that the applicant reported any shoulder or neck injury to Dr Chwah on 1 March 2021. However, I am of the view that the injury sustained to the lumbar spine on 15 February 2021 was by far the most significant and that it was the injury to the lumbar spine on which the applicant was focused and with which he was concerned.
It is the applicant’s evidence that he felt severe pain in his lower back at the time of injury stating: “It felt as though someone had shot a bullet into my back and I fell to the floor onto my knees.” Dr Raymond Wallace, orthopaedic surgeon, who examined the applicant on 20 May 2021 at the request of the respondent records that the applicant reported a similar description of his pain. Dr Chwah considered the applicant’s symptoms to be sufficient to warrant the applicant’s referral for a CT scan of the lumbar spine and on 1 March 2021 the applicant complained to Dr Chwah not just of lower back pain but also that the low back pain was radiating into his left lower limb.
By the time that the applicant initially attends on Dr Lim on 22 March 2021 he has been off work since sustaining the injury on 15 February and Dr Lim records that the applicant had been using a walking stick to mobilise since the injury. Dr Chwah on whom the applicant attended on 4 May 2021 also observed that the applicant was still walking with the help of a walking stick which he had commenced using in February 2021 and Dr Wallace also observed on 20 May 2021 that the applicant was using a walking stick. Dr Lim on examination of the applicant also recorded significant restrictions due to the lower back injury with the applicant having a sitting tolerance of 10-15 minutes and standing and walking tolerances of only five minutes.
The evidence in my view supports not only that the applicant experienced significant symptoms in his lumbar spine when the injury was sustained on 15 February 2021 but that he continued to suffer from significant symptomatology in his lumbar spine following the injury with marked disability and restrictions.
That the applicant was focused on his back condition in my view is consistent with and supported by the initial report of Dr Lim who reported that the applicant attended “...for an injury to Back.” It is only when Dr Lim takes a history from the applicant that the applicant also reports that he sustained injury to his neck and shoulder on 15 February 2021 “whilst moving and transporting servers weighing 25kg each for relocation.” The history taken by Dr Lim is concise and specific as to the neck and shoulder having been injured on 15 February 2021 in the same incident as the back injury was sustained.
In my view that the applicant was focused on his back injury is also consistent with the clinical note of Dr Chwah in respect to the applicant’s Tele consultation with the doctor on 11 May 2021. On 11 May 2021 Dr Chwah recorded that the applicant still had low back pain which increased with minimal activity and that physiotherapy helped temporarily. The clinical note contains no mention of the applicant’s neck and right shoulder even though by the time that the applicant consults Dr Chwah on 11 May 2021 he has already reported to Dr Lim that he had sustained injury to his neck and shoulder in addition to his back on 15 February 2021 and had been referred for an MRI scan of his cervical spine which had been undertaken on 25 March 2021, been referred for physiotherapy on his neck, shoulder and back and been referred to and attended on the orthopaedic and spinal surgeon, Dr Bhisham Singh, for his ongoing neck and lower back pain with restricted movement. The applicant’s focus is clearly fixed on the highly symptomatic injury to his lumbar spine.
The respondent observed that the records of the applicant’s physiotherapist are not in evidence and submitted that the applicant would have obtained and put those records into evidence if they would have assisted the applicant’s case and requested that an inference be drawn to that effect. I decline to draw such an inference. There could be a number of reasons as to why the clinical records from the physiotherapist have not been put in evidence including mere oversight. If the respondent wished to rely on the records, they could also have obtained the records. In any event the referral for physiotherapy was made by Dr Lim on 22 March 2021 and is in evidence and records that the applicant was referred for ongoing neck, shoulder and lower back pain with restriction.
The respondent submits that the applicant’s statement made 24 November 2021 only refers to him having sustained injury to his low back and does not mention any injury to his cervical spine or right shoulder.
It is correct that the applicant in his statement made 24 November 2021 makes no mention of any injury having been sustained to his cervical spine or right shoulder on 15 February 2021. The applicant states that on 15 February 2021, whilst in the course of his employment with the respondent, he was replacing an old computer server which was located about one metre above the floor in the middle of a rack. He took the old server from the rack and placed it on the floor. He then picked up the new server, which the applicant estimates weighed approximately 25kg, from the floor and placed it onto the rack. As he was placing the server on to the rack he felt severe pain in his lower back stating: “It felt as though someone had shot a bullet into my back and I fell to the floor onto my knees.”
Whilst the applicant in his statement made 24 November 2021 does not refer to having sustained any injury to his neck or right shoulder on 15 February 2021 the statement was not made for the purposes of the current proceedings. The statement was produced for the purposes of litigation as evidenced at [3] where he states: “I am the Applicant Worker in these proceedings.” Presumably the proceedings for which the statement was made was Commission proceedings W6335/21 which were filed on 9 December 2021, shortly after the statement was made. In those proceedings the applicant claimed weekly compensation for injury sustained to his low back on 15 February 2021.
Significantly the statement was made after the applicant had attended on Dr Lim on 22 March 2021 and reported that he had sustained injury to his low back, cervical spine and right shoulder on 15 February 2021 and after the subsequent referrals for an MRI scan of the cervical spine which was performed on 25 March 2021, referral to Infinity Physiotherapy for treatment of his neck, shoulder and lower back pain and referral to Dr Bhisham Singh for management and review of his neck and lower back.
There is no explanation from the applicant as to the reason for the omission of any reference to the neck and shoulder from his statement. There could be multiple reasons for the omission such as that the back was the only injury considered relevant in respect to the weekly compensation claim for which the statement was made. That the neck and shoulder were simply overlooked due to the applicant’s focus on his back condition which may be consistent with the Certificates of Capacity issued to the applicant prior to the making of his statement which all include as part of the diagnosis, work related injury to the cervical spine and bilateral shoulder aggravation in addition to the lower back injury. Or as the respondent submits that no such injuries were sustained to the neck and shoulder as alleged on 15 February 2021.
Whilst the omission of any reference in the applicant’s statement to injury to the neck and right shoulder on 15 February 2021 has not been explained I am of the view that the applicant clearly reported to Dr Lim on 22 March 2021 that he had sustained injury to his neck and shoulders on 15 February 2021 a report which is made at a time much closer to the injury having been sustained than the making of the applicant’s statement.
The respondent submitted that the opinion of Dr Raymond Wallace, orthopaedic surgeon, who provided forensic reports to the respondent dated 24 May 2021 and 27 April 2023 should be accepted and preferred to the opinion of Dr James Bodel, orthopaedic surgeon, who provided forensic reports to the applicant dated 6 March 2023 and 28 November 2023.
Dr Wallace initially examined the applicant on 20 May 2021 recording a history that the applicant suffered a lifting strain of his lumbar spine in the course of his employment on 15 February 2021 when he was replacing a computer server which weighed an estimated 25kg in a rack. He lifted the old server out of the rack and then went to put the new server into position when he felt a sharp pain in the region of his lumbar spine.
Dr Wallace was aware that the applicant had been initially assessed by Dr Lim on 22 March 2021 and that Dr Lim had ordered an MRI scan of the cervical spine and that the applicant had been referred for physiotherapy and to the orthopaedic and spinal surgeon, Dr Singh. It appears that Dr Wallace was provided with a copy of Dr Lim’s initial assessment report dated 22 March 2021 as Dr Wallace was asked to comment on Dr Lim’s diagnosis.
Dr Wallace in his report of 24 May 2021 expressed the opinion that there was no objective medical evidence that the applicant had suffered any injury to his cervical spine or shoulders at the time of the work incident on 15 February 2021. Dr Wallace was also of the opinion that the mechanism of injury which the applicant described of a lifting strain at his lumbar spine is not consistent with being the cause of any significant cervical spinal or bilateral shoulder pathology.
I do not accept the opinion of Dr Wallace. Whilst Dr Wallace was apparently aware that there was an allegation/history of injury having been sustained to the neck and shoulders on 15 February 2021 there is no indication that Dr Wallace on 20 May 2021 questioned the applicant at all in respect to injury to his shoulders or neck and there is also no indication that the doctor undertook any clinical examination of the neck or shoulders.
The respondent submitted that in the opinion of Dr Wallace the applicant would not have sustained injury to his neck and right shoulder in the subject incident as the mechanism of injury, the biomechanics involved, would not have caused such injuries. I do not accept the respondent’s submission. What Dr Wallace says is:
“The mechanism of injury he describes of a lifting strain at his lumbar spine is not consistent with being the cause of any significant cervical spinal or bilateral shoulder pathology.”
(Emphasis added.)
Whilst I accept that a lifting strain at the lumbar spine is not consistent with being the cause of any significant cervical spinal of shoulder pathology Dr Wallace appears to have made no inquiries of the applicant as to how his neck or shoulders may have been injured.
Dr Wallace re-examined the applicant on 19 April 2023 and in his report dated 27 April 2023 confirmed his previous opinion that the applicant did not suffer any injury to his cervical spine or right shoulder on 15 February 2021 noting that at the time of his previous examination of the applicant on 20 May 2021 the applicant had not complained of any cervical spine or right shoulder symptoms. Again, there is no indication that Dr Wallace at the time of the re-examination questioned the applicant about having sustained any injury to his neck or right shoulder.
I prefer the opinion of Dr Bodel who is satisfied that at the very least the applicant suffered an aggravation, acceleration, exacerbation and deterioration to relatively asymptomatic degenerative changes in his neck and shoulders.
Dr Bodel records a history that the applicant felt sudden pain in his neck, back and shoulders on 15 February 2021 whilst manipulating two large servers weighing an estimated 25kg each. This history is broadly consistent with the brief history taken by Dr Lim on 22 March 2021. Dr Bodel diagnosed disc pathology in the cervical spine as well as rotator cuff pathology in the shoulders. Dr Wallace observed in his report of 27 April 2023 that the applicant is suffering from pre-existing multilevel degenerative cervical spondylosis. The opinion of Dr Bodel is also consistent with the opinion which Dr Lim expressed at the time of his initial examination of the applicant that the applicant had sustained aggravations of his cervical spine and both shoulders.
Section 4(a) of the 1987 Act defines ‘injury’ to mean personal injury arising out of or in the course of employment. Pursuant to s 4(b) injury relevantly 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.
In a matter involving s 4(b)(ii), an “aggravation, acceleration, exacerbation or deterioration” of a disease, the issue is whether employment was the main contributing factor “to the aggravation, acceleration, exacerbation or deterioration of that disease” and not to the overall pathology or the overall disease process: Ariton Mitic v Rail Corporation of NSW (Matter No 008497/2013 8 April 2014) (Mitic).
The aggravation occurred as a result of the frank event on 15 February 2021 with an increase in symptoms in the both the neck and right shoulder. There is an exacerbation where there is an increase or intensification of symptoms.[1] I am therefore of the opinion that employment was the main contributing factor.
[1] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626.
The respondent submits that the opinion of Dr Bodel should not be accepted that the doctor has made an incorrect assumption being that the applicant injured his neck and right shoulder on 15 February 2021 at the same time that he injured his lower back. I do not accept the respondent’s submission. I am of the view that the history taken by Dr Bodel that the applicant experienced sudden pain in his back, neck and shoulders is consistent with the history taken by Dr Lim on 22 March 2021 which I have previously accepted.
The respondent also observed that Dr Bodel in his report of 6 March 2023 records dates of injury of 15 February 2021, July 2021, 17 May 2010 and the nature and conditions of work generally. There is no issue that the applicant has a complex medical history. Relevantly the applicant has a significant history of pre-existing lower back, cervical spine and right shoulder complaints. The clinical notes of the applicants treating doctors record complaints in respect to the cervical spine and right shoulder from at least 2001. The applicant has also suffered a number of injuries including:
(a) on or about 17 January 2007 to his neck and right shoulder when he tripped and fell in a newsagency;
(b) on or about 11 September 2009 to his left shoulder whilst lifting a laptop;
(c) on or about 17 May 2010 to his lower back when he was involved in a motor vehicle accident in which he collided with the rear of another vehicle, and
(d) on or about 6 July 2019 to his cervical spine when he was struck on his head at work by a falling piece of equipment.
Dr Bodel had previously examined the applicant in the capacity of an Approved Medical Specialist (AMS) in the former Workers Compensation Commission in matter WCC 3866/2010 with a Medical Assessment Certificate (MAC) being issued on 31 August 2011. Dr Bodel relevantly assessed due to injury sustained on 17 January 2007 6% whole person impairment (WPI) cervical spine after making a deduction pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) for pre-existing conditions and 8% WPI for impairment of the right upper extremity (shoulder). A Certificate of Determination – Consent Order was issued in the matter dated 17 October 2011 which awarded the applicant compensation pursuant to s 66 of the 1987 Act in accordance with the MAC of Dr Bodel.
The respondent complained that Dr Bodel did not apportion the impairment assessments but simply provided a global assessment and that there is doubt as to whether the applicant has suffered any increase in impairment of the cervical spine and right shoulder since the MAC assessment of 31 August 2011.
As I have found that the applicant sustained injury to his cervical spine and right shoulder as alleged on 15 February 2021 I will refer the lumbar spine, cervical spine and right upper extremity to a Medical Assessor for assessment of permanent impairment.
The task of assessing the degree of any permanent impairment resulting from the injury and making deductions for previous injuries, pre-existing conditions or abnormalities pursuant to s 323 of the 1998 Act falls to the Medical Assessor.
2
0