Jabur v Orbit Formwork Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jabur v Orbit Formwork Pty Ltd [2021] NSWPIC 433
APPLICANT:	Ali Jabur
RESPONDENT:	Orbit Formwork Pty Ltd
MEMBER:	Kerry Haddock
DATE OF DECISION:	25 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Accepted claim for injury to left shoulder; left hand; and right knee; claim to have also sustained injury to neck; claim for permanent impairment compensation pursuant to section 66 of the Workers Compensation Act 1987 in respect of 23% whole person impairment as a result of injury to left upper extremity, right lower extremity, cervical spine and TEMSKI scarring; inconsistent statements of applicant; lack of contemporaneous medical evidence; applicant claimed inconsistencies and omissions in evidence due to language difficulties; consideration of Nguyen v Cosmopolitan Homes; Held - no sense of actual persuasion that the applicant sustained injury to his cervical spine; award for the respondent with respect to the claim for injury to the cervical spine; matter remitted to the President for referral to Medical Assessor for assessment of permanent impairment as a result of injury to the left upper extremity (left shoulder and left hand), right lower extremity (right knee) and TEMSKI scarring.
DETERMINATIONS MADE:	1. That there is an award for the respondent in respect of the claim for injury to the cervical spine. 2. That the matter is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of injury to the left upper extremity (left shoulder and left hand); right lower extremity (right knee); and TEMSKI scarring as a result of injury on 23 March 2017. 3. That the Medical Assessor is to be provided with the following: (a) Application to Resolve a Dispute and attachments; and (b) Reply and attachments.

STATEMENT OF REASONS

BACKGROUND

The applicant, Ali Jabur (Mr Jabur) was employed by the respondent, Orbit Formwork Pty Ltd (Orbit) as a labourer.
Mr Jabur sustained accepted injuries to his left upper extremity (left shoulder and left hand) and right lower extremity (right knee) on 23 March 2017, when he fell from a building onto a concrete slab below. He also claims to have sustained an injury to his cervical spine.
The “First Contact Notification” provided by Orbit to QBE Insurance (Australia) Limited, its workers’ compensation insurer, is undated. It states that on 23 March 2017, the applicant was working on the northern side of the building and had fallen from the second floor to the ground floor. The “parts of body affected” were his right and left legs, left hand, chest and shoulder.
The applicant completed a Worker’s Injury Claim Form (the Claim Form) on 29 March 2017. It stated that on 23 March 2017, he was helping to strip a concrete column when he fell from the edge of the building to the ground level. The parts of his body effected were said to be his right and left legs, left arm, chest and shoulder.
On 22 November 2019, the respondent was convicted of an offence of having failed to comply with a health and safety duty, pursuant to section 19 of the Work Health and Safety Act 2011, and thereby having exposed Mr Jabur to the risk of death or serious injury, having pleaded guilty. Russell SC DCJ’s judgment found that the drop from Level 2, where the applicant was working, to the basement, was approximately six metres.
By letter dated 17 March 2020, the applicant’s solicitors made on his behalf a claim for permanent impairment compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act) for the sum of $58,530 in respect of 25% whole person impairment (WPI) as a result of injury to his left upper extremity, right lower extremity, cervical spine and scarring. The letter also gave notice that the applicant had provided instructions to investigate his entitlement to claim work injury damages, and the facts and circumstances surrounding the injury and economic loss were being investigated.
On 29 June 2020, AAI Limited trading as GIO (GIO), which has assumed management of the claim, issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
GIO advised Mr Jabur that it disputed that he had sustained injury to his cervical spine, and that employment was a substantial contributing factor to such injury. GIO confirmed that it was accepted that the applicant had sustained injury to his left upper extremity and right knee on 23 March 2017.
By letter dated 1 July 2020, the solicitors acting for GIO made on its behalf an offer to the applicant of $25,750 in respect of 12% WPI. The letter confirmed that a section 78 notice had been served in relation to the claimed injury to the cervical spine, liability for which was declined.
On 28 April 2021, the applicant discontinued proceedings in the Personal Injury Commission in Matter Number W273/21.
The applicant lodged an Application to Resolve a Dispute (the Application) on 15 June 2021. He claimed that on 23 March 2017, he was stripping formwork with a co-worker. His
co-worker yelled “watch out” as some loose formwork fell towards him. The applicant moved out of the way and fell off the edge of the unprotected building. He plummeted approximately eight to nine metres to the concrete slab below, sustaining significant injury.
The applicant claimed the sum of $58,530 in respect of 23% WPI as a result of injury to his left upper extremity, right lower extremity, cervical spine and TEMSKI scarring on 23 March 2017.
The respondent lodged its Reply on 7 July 2021.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:

(a) whether the applicant sustained an injury to his cervical spine on 23 March 2017.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing by telephone on 22 September 2021. Mr McManamey of counsel, instructed by Mr Naddaf, appeared for the applicant, who was present. Mr Morgan of counsel, instructed by Ms Tancred, appeared for the respondent. Mr El-Khishin, interpreter in the Arabic language, also attended.
The parties agree that the medical dispute is to be referred to a Medical Assessor, whatever the outcome of the dispute as to injury to the applicant’s cervical spine. He has accepted injuries in respect of which there is a dispute as to the degree of impairment, and the assessment of impairment as a result of those injuries is more than 10%.

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) the Application and attachments; and
(b) Reply and attachments.

Oral evidence

There was no application by either party to cross-examine any witness or call oral evidence.

FINDINGS AND REASONS

Evidence of the applicant, Ali Jabur

Mr Jabur’s first statement is dated 19 February 2019. He stated that his first language is Arabic, and he has very limited ability to speak English.
The applicant commenced employment with Orbit on 21 March 2017. He was responsible for formwork duties, manual handling and general construction labouring.
On 23 March 2017, the applicant sustained extensive injuries all over his body. Those that remained problematic were his left shoulder, left hand, right knee, left knee, left leg and chest.
The applicant and his co-worker were working on a column located close to the unprotected edge of the building. His colleague yelled out, warning that some loose formwork was about to fall on Mr Jabur. As he quickly moved out of the way, he fell off the building, from a height of over eight metres. He landed on a concrete slab on the lower ground floor. He immediately blacked out and was not conscious of the events immediately following until the next day. He understands that he was taken by ambulance to St Vincent’s Hospital.
The applicant’s injuries were initially noted as a fracture to his left clavicle, dislocation of his left shoulder, fracture of the left hand, sternal fracture, injury to his right knee joint region and multiple lacerations to his left leg. He was in hospital for about a fortnight.
The applicant has given evidence about his treatment, which is provided in the medical reports. In or about June 2018, the condition of his right knee continued to worsen. It was very obvious that he had a clear limp favouring his left side, due to intense pain in his right knee and right leg. The instability in his right knee often caused him to fall, exacerbating his various other injuries. The most infuriating thing about the situation was that he tried his best with his treating doctors, regularly voicing his complaints. He was always relaying to his GP about how little support he had in his right leg, but it was never investigated. He felt like the doctors ignored his concerns.
In or about the last week of October 2018, the applicant suddenly lost balance due to his right leg giving way and sprained his left ankle. His GP, Dr Remon Botros, attributed his knee giving way to “muscle wasting”. He was disheartened that it took such a major incident for his doctors to begin investigating and paying attention to his right leg. He underwent knee surgery on 23 July 2019, performed by Dr Rami Sorial.
The applicant had significant difficulties breathing and constantly felt tightness in his chest and middle to upper back region. The symptoms in his sternum subsided for a bit. He also occasionally had blurry vision, light-headedness and headaches.

The applicant was unable to walk or stand for more than a few minutes at a time, as his right leg became completely numb. This caused him to feel faint and weak. It caused him to occasionally fall over and put strain on his left leg.
The weakness in the applicant’s upper body was very apparent. He was unable to carry moderate to heavy objects, push or pull, and unable to complete movements with his arms that required a full range of movement. He had become overly reliant on his right side so that he also felt pain in his right shoulder.
The applicant used to consider himself a very active person who loved playing sports and attending gym. He had not engaged in either since the injury, and this had made him feel more down. He had a great deal of psychological and mental issues.
The applicant listed disabilities that numbered 43. It is unnecessary to list them, but none refers to any injury to or disability related to his neck or cervical spine. He also gave evidence about his scarring.
The applicant made a supplementary statement dated 3 February 2021. He referred to his previous statement, commissioned by Law Partners, confirming that its contents were true and correct to the best of his knowledge. To the extent of any inconsistencies between the statements, the veracity of the claims made in this statement was preferred.
The applicant referred to his symptoms and the impact on his life. It is unnecessary to repeat that evidence.
The applicant had constant pain and restrictions in his left shoulder. Further [to] the pain in his shoulder there was cramping in his neck, causing constant tenderness and tightness in this area. He found it difficult to turn his head from side to side because he experienced a sharp jolt of pain centred at the base of his neck. He could barely turn his head to the right.
The applicant had been informed by his lawyer that the injury to his neck had been disputed. It was explained that there was an extended period before he began mentioning it to his treatment providers.
Mr Jabur believed his neck was injured during his fall at work on 23 March 2017. He believed he didn’t report it immediately because it was insignificant when compared with his other injuries. He was in extreme pain, which would have directed his attention away from his neck pain.
As the applicant’s other injuries became stable, his neck pain became more noticeable. He mentioned it to his treating doctors. He was not sure why it was not recorded. He believed his very limited English didn’t assist the communication. He reported his neck pain to his “physio” constantly. He remembered reporting it and they massaged it consistently.

The applicant believed his neck pain deteriorated with time. In his opinion, this was due to cramping in his left shoulder, which extended into his neck. His over-reliance on his right arm to avoid using his injured left arm caused altered weight-bearing through his neck. He felt this made his neck much worse. After his work injury, he regularly complained about his neck issues and pain to his family.
The applicant again listed his restrictions and disabilities, this time including neck pain and restricted movement in his neck.
The applicant’s final statement is dated 25 May 2021. His earlier statements had been translated to him, as was this one.
The applicant made some amendments to his previous evidence. There had been an omission in his first statement, and his injuries should have mentioned his neck. In addition to other matters, he would like to add “neck pain” to the list of his disabilities.
As regards his second statement, the applicant stated that the cramping pain in his neck was present immediately following the injury. He initially believed it originated from his left shoulder, so he did not describe it to the doctors as a separate injury at first. He later became more aware of neck pain as there was some improvement in his shoulder pain and the general pain across his body, and no improvement in his neck. He then realised that his neck was a separate injury. He maintained that his physiotherapist massaged his neck constantly.
The applicant had difficulty communicating with his treatment providers. His GP did speak Arabic, but he is Egyptian, and the applicant is Iraqi. The GP speaks a different dialect, meaning there was still significant difficulty with communication. None of his other treatment providers spoke Arabic and he struggled to communicate with them, considering his very limited English.

Evidence of Raneen Hashem

Ms Hashem is the applicant’s niece. She has made a statement dated 17 February 2021.
Ms Hashem described the applicant’s English as extremely poor. She did not recall assisting him with anything before the injury, but now assisted him as a translator with the insurer and communicating with his solicitors.
Ms Hashem had been informed that the insurer had disputed liability for the applicant’s neck injury. She was surprised by this. She recalled that within a few weeks after his work injury, the applicant was complaining about his neck pain (in addition to his other severe injuries). She would often hear him complaining that his neck was stiff and painful.
Ms Hashem had noticed that, due to the injury to his left arm, the applicant was using his right arm a lot more. He complained that his left arm was weak and had limited movement. It looked smaller than his right arm.
The applicant did not do much, and if he did, he used his right arm a lot more than his left. To the best of Ms Hashem’s knowledge, he injured his neck in the fall at work, and she recalled him complaining about it within weeks. He had been complaining more as time had gone on. She “wouldn’t be surprised” if this was because of the altered use of his arms, causing tension and cramping in his neck.

Evidence of Ahmed Al-Nuaimi

Mr Al-Nuaimi is the applicant’s brother-in-law. He has made a statement dated 15 February 2021.
Mr Al-Nuaimi described the applicant before his injury as fit, active and happy. He spent most of his time with Mr Jabur looking after him.
Mr Al-Nuaimi was aware that the insurer had disputed liability for the applicant’s neck injury. He was surprised by this. He recalled the applicant complaining of neck pain a matter of weeks after his fall.
Since the injury, Mr Al-Nuaimi had spent most of his days with the applicant and he regularly complained about his neck pain, in addition to pain from his other injuries. He described his neck as painful and stiff. Mr Al-Nuaimi had noticed that he complained about his neck pain more as time went on. He believed it was because Mr Jabur was more reliant on his right arm. This is unusual, as before his injury, he was left hand dominant. He described tightness through his shoulder region and into his neck.
To the best of Mr Al-Nuaimi’s knowledge, the applicant injured his neck in the fall on 23 March 2017.

Medical evidence

Nepean Hospital

The applicant was admitted to the hospital on 3 February 2015 after a motor vehicle accident and discharged on 4 February 2015. The history recorded was that he was the rear passenger in a rear end collision. He had ongoing pain in the left shoulder, left side of the neck and midline in the cervical spine. The Ambulance record is included. It is largely illegible, but it is possible to read “…from Iran [sic]. Very little English…” and “…denies cervical pain…”
On triage, the applicant complained of left shoulder pain and neck pain, and a collar was applied. It was noted that he spoke Arabic.
An x-ray of the applicant’s cervical spine was reported as detecting no abnormality. There was a diagnosis of whiplash injury to the neck.
The Discharge Summary described complaint of left-sided neck pain after a rear end collision at 50 km per hour. The applicant “hit head to the back of the seat”. He had been collared by ambulance staff in the emergency room. It was noted that he had poor English.
The applicant again presented to the hospital on 12 October 2016, after another motor vehicle accident. He was the driver, had braked for a cat, and was rear ended by a car travelling at 50 km per hour. He was complaining of pain in the right side low rib, cervical spine and thoraco-lumbar spine. A CT scan of the cervical spine was reported as showing no fractures. There was a full range of motion of the spine.

The applicant again presented to the hospital on 5 April 2017. The Ambulance record noted that he was “NESB” [non-English speaking background]. He had had surgery on his left wrist and was “highly vocal regarding pain”. The police arrived due to disturbance of the peace. It was noted by the officer treating the applicant that he had a traumatic fall “? distance or time of fall”. It was a workplace accident. Surgery 1/7 ago”.
The Discharge Summary is dated the same day. It noted that the applicant was brought in by ambulance with severe pain in his left hand – “NESB. Arabic”.
The background was recorded as major trauma after a fall from a height two weeks ago. The applicant had been admitted to St Vincent’s Hospital. He had had follow up hand surgery “yesterday”. It was noted that there was an attempted Arabic translation, but the reception was too poor for phone translation and an in person translation was booked for that afternoon.

Hassall Grove Medical Centre

The clinical records commence on 31 August 2016. The applicant mostly consulted
Dr Botros.
On 5 April 2017, Dr Botros recorded sternal fracture; left third metacarpal fracture; left shoulder dislocation, closed reduction; and right knee injury.

On 19 June 2017, Dr Botros advised the applicant about the importance of physiotherapy for his leg, hand and shoulder. He noted on 27 June 2017 that “not yet for hand physiotherapy. But started for the shoulder and knee”.
There is no reference in any of the records to complaints about, or injury to, the cervical spine. None of the Certificates of Capacity issued by Dr Botros referred to injury to the neck or cervical spine.

St Vincent’s Hospital

The hospital records show that the applicant was admitted on 23 March 2017. It was noted that he spoke Arabic at home and an interpreter was required. “Will (work friend) can translate Arabic → English”. The presenting problem was recorded as sternum fracture.
The clinical records refer to a 10 metre fall onto timber. It was noted “Head strike, nil LOC [loss of consciousness]. C/o mid thoracic and l lower leg and hand pain. O/e pain 10/10, C-spine collar in situ. Directed to R1 for assessment”.
There is a diagram showing the areas of pain. The cervical spine is not recorded, but there is shading of the thoracic area, with the notation “tender mid T spine” and an illegible word (which may be “below”, as it was recorded that there was tenderness of the mid thoracic spine and below).
The list of injuries to date was sternal fracture, [illegible] contusions; left third metacarpal joint fracture; left acromioclavicular joint (ACJ) injury; and bilateral knee pain “ᶲ #” (assumed to mean no fracture).

The hospital Discharge Summary records that the applicant was admitted on 23 March 2017 following a 10 metre fall at work. It was noted that “landing on concrete”.
There were a number of findings, including “C-spine collared”; and “CT pan scan”. A pan scan is a whole body scan. The findings were recorded as “brain NAD; C-spine unusual finding C4 needing consultant r/v (review); chest: oblique sternal #, nil retrosternal haematoma, pulmonary contusions/haemorrhage, nil PTX, nil intrabdominal pathology, nil pelvic #”.
The CT scan report states that there was normal alignment of the cervical spine; the atlanto-occipital, atlanto-axial and uncovertebral joints were enlocated; no fracture or dislocation; no prevertebral soft tissue abnormality; and likely nutrient cleft at C4 (this is assumed to be the unusual finding).
Between 27 March 2017 and 30 March 2017, the applicant underwent a CT scan of his left hand; a chest x-ray; a left shoulder x-ray; a right shoulder x-ray; a CT scan of his brain; and MRI of his right knee.
The applicant was transferred on 30 March 2017 to Sacred Heart Rehabilitation Hospital but did not want to stay and was deemed safe for discharge.

The plan for discharge referred to left metacarpal fracture; left shoulder AC fracture; sternal fracture; and right knee soft tissue injury. These injuries and the plan for discharge had been clarified with the “treating team”.

Dr Tim Small – Orthopaedic Surgeon

Dr Small reported on 1 May 2017, having examined the applicant that day. He recorded that the applicant had presented to Accident and Emergency on 23 March 2017 after a 10 metre fall at work.
The applicant had sustained multiple injuries, including a third left metacarpal fracture, Grade II ACJ disruption and right knee injury. He had presented for an opinion and further management with respect to his right knee.

Energize Physiotherapy

The clinical records commence on 8 June 2017 and end on 18 August 2017. It is noted that the applicant is NESB and “hard to get subjective information”. The injuries were recorded as fractured MC (metacarpal) head, sternal fracture with pulmonary contusion, left ACJ injury and bilateral knee pain with lacerations.
On 15 June 2017, there was a translator present. The applicant was in a lot of pain in his shoulder and leg. There is no reference to the neck or cervical spine.
On 28 June 2017, there are pain diagrams, that include shading of the left shoulder (with the figure viewed from the back), continuing up to the left side of the neck. On 29 June 2017, the applicant complained of left AC joint injury, shoulder pain and right knee pain.
On 3 July 2017, there is a record of “tenderness +++ in L upper traps [trapezium]…” and “soft tissue work above areas within tolerance”.
There continued to be notations of tenderness in left upper “traps” and soft tissue work. On 10 July 2017, it was noted that “shoulder improved, less tenderness around surrounding tissue”. There are complaints of soreness and tenderness in the left shoulder.
There is the first page only of a report dated 5 July 2017. The applicant’s injuries are recorded as left shoulder and right knee. The physiotherapist has noted that the applicant suffered from neck-left shoulder and right medial knee pain as a result of a work injury on 23 March 2017.
The applicant reported that the pain at his left shoulder had reduced to 6-7/10 VAS overall with current treatment and management, but the pain at the right knee remained at 9-10/10 VAS with movement.
On 2 August 2017, Mr Joseph Gergis recorded that the applicant’s injuries were right AC joint sprain and left quadriceps tear. The applicant was still reporting significant pain in his shoulder. He had a lot of tenderness around his shoulder. Mr Gergis had tried to educate him as much as possible, with interpreter services due to his poor English.
On 18 August 2017, the notes record that the applicant’s shoulder was sore over the AC joint and “wants focus on that mostly”.

Sydney West Physio – Blacktown

The clinical notes of the practice record “interpreter present” at the initial consultation on 11 July 2017. It is noted “Arabic language (Iraq)”. The areas to be treated are recorded as left shoulder; left hand; middle ribs; and right knee. However, all but “left hand” have been crossed out.
There is no reference in those records that are legible of complaints of or symptoms in the applicant’s neck, which is perhaps not surprising, given the area being treated.
The records end on 13 March 2018, when it was noted that Mr Jabur did not return.

Dr David Yee – Hand & Wrist Surgeon

Dr Yee reported to Dr Botros on 29 August 2017. He recorded a history that the applicant fell three storeys on 23 March 2017. He was taken to St Vincent’s, where he remained for about a fortnight. He had chest and sterna injuries, a left shoulder injury and a left hand injury.
The applicant had undergone surgery to his left hand. His problem was ongoing pain in his left middle finger MCP (metacarpophalangeal) joint, with swelling and restricted motion.
Dr Yee removed plates and screws from the applicant’s left middle finger and performed extensor tenolysis on 19 October 2017.
Dr Yee reported no history of injury or symptoms related to the applicant’s cervical spine.

Dr Sherif M. Rizkallah – Orthopaedic Surgeon

Dr Rizkallah reported to GIO on 6 December 2017. He recorded a history that the applicant had fallen from the third floor in March that year, sustaining multiple injuries. His reason for consulting Dr Rizkallah was persistent left shoulder pain and weakness.
On examination, the applicant had mild wasting of the parascapular muscles. There was an obvious deformity of the left AC joint with evidence of possible grade III dislocation. His shoulder movements were very painful, with weakness in external rotation and pain on isolating the supraspinatus. His apprehension test was suggestively positive; and the relocation test was equivocal.
Dr Rizkallah opined that the applicant may have sustained injuries to his labrum and rotator cuff, in addition to his obvious AC joint dislocation. He referred Mr Jabur for MRI and x-rays.
Dr Rizkallah performed stabilisation and reconstruction of the applicant’s AC joint on 12 June 2018. He reported on 27 June 2018 that the AC joint demonstrated excellent clinical alignment and stability, with no peripheral neurovascular deficit. He recommended that the applicant commence physiotherapy immediately.
On 6 August 2018, Dr Rizkallah reported that the applicant’s left shoulder maintained a near full range of active movements, with excellent alignment of his AC joint. His cross-chest adduction test was negative, and he had good strength in external rotation and abductions, with no peripheral neurovascular deficit. His x-ray demonstrated good position and fixation of his AC joint dislocation. Dr Rizkallah recommended continuing physiotherapy until he was discharged.
Dr Rizkallah reported no history of injury or symptoms related to the applicant’s cervical spine.

Dr Rami M Sorial – Orthopaedic Surgeon

Dr Sorial treated the applicant’s right knee injury, performing surgery on 23 July 2019.
On 20 February 2019, Dr Sorial reported to Dr Botros. He recorded that the applicant had restriction of motion and minor deformity of the left hand, with some residual pain; pain in the right knee, with instability causing multiple falls, resulting in a sprained left ankle; pain over the right distal thigh; and swelling over the medial aspect of the right knee joint. There was no complaint regarding the neck or cervical spine.

Blacktown Hospital

The applicant was brought by ambulance to the hospital on 27 June 2019, after twisting his right ankle.
Information was obtained with the help of the applicant’s sibling, a fluent English speaker. His past history included collar bone fracture, surgically repaired; previous hand surgery for metacarpal fractures, and recent knee surgery, although he could not explain the procedure.

Dr James Bodel – Orthopaedic Surgeon

Dr Bodel was qualified by the applicant and reported first on 13 February 2020. He noted that the applicant had a very rudimentary command of English and was accompanied by a friend whose English was not much better. He had had to rely largely on the documentation to verify the history and mechanism of injury and treatment.

Dr Bodel summarised the applicant’s injuries as fracture of the left ACJ; fracture of the sternum; fracture of the third MCP of the left hand; injury to the right knee and damage to the quadriceps tendon and insertion into the patella; lacerations to the right and left legs; and postoperative scarring.
Dr Bodel obtained details of the mechanism of injury mainly from the First Contact Notification Form and the Claim Form. He had access to the medical records and the applicant’s first statement.
The applicant’s complaints were recorded as pain and stiffness in the left shoulder; pain and stiffness in the left hand, particularly the MCP joint of the middle finger; and pain and stiffness in the right knee. He could not kneel, squat or climb, and the knee appeared unstable.
On examination, Dr Bodel’s findings included tenderness in the trapezius muscles at the base of the neck on the left and reduced range of neck flexion, extension and rotation in all directions, most restricted on rotation to the right. The applicant had asymmetry of neck movement.
Dr Bodel then described the applicant’s injuries as including a soft tissue injury of the neck. There was a direct causal link between the episode of injury in the fall and the ongoing complaints. There was no consequential condition. All the areas of injury were caused by the fall. The frank injury was a fall of somewhere between 8 and 10 metres.
Dr Bodel assessed the applicant’s WPI as 23%.
Dr Bodel provided a supplementary report dated 12 October 2020. He noted that the applicant’s solicitor had “taken issue” with him defying [sic: defining] the injury to the applicant’s cervical spine as a frank injury, on the basis that the applicant had reported to the solicitor that he developed the level of pain five or seven months after the injury.
Dr Bodel pointed out that the applicant fell from about 10 metres and was knocked unconscious. It was “inconceivable to indicate that an injury of that type would not be associated with an injury to the cervical spine”. His injury with a delayed reporting episode could fit into the legal definition of a “consequential condition”. The applicant fell 10 metres, was unconscious for a period and had injuries in adjacent areas to the shoulder. Dr Bodel maintained his opinion.
Dr Bodel opined that in part the applicant’s injury was the aggravation, acceleration, exacerbation and deterioration of some degenerative cervical disc disease that had been asymptomatic. He was satisfied that the applicant’s employment and the specific injury was the main contributing factor by way of aggravation, acceleration, exacerbation and deterioration to the frank injury to the neck.
Dr Bodel’s final report is dated 1 June 2021. He noted there was disagreement about whether the applicant fell 6 metres or 10 metres, and whether he lost consciousness.
Dr Bodel opined that a fall of more than two to three metres was more than sufficient to cause a frank injury to the neck in 80% to 90% of cases; a fall of six metres in 95% to 100% of cases; and a fall of 10 metres in 100% of cases. The fact that the applicant had or had not been rendered unconscious was largely irrelevant regarding injury to the neck. The higher the fall, the more likely the applicant was to be knocked unconscious. Dr Bodel made those statements in the knowledge that the legal test is on the balance of probabilities; and that is the case.

Dr Frank Machart – Orthopaedic Surgeon

Dr Machart was qualified by the respondent and reported on 5 May 2020. He noted that the applicant did not speak much English and attended the examination with an interpreter.

Dr Machart recorded a history that the applicant fell a distance of two or three metres. He injured his right hand, left shoulder, right knee, left leg, and fractured ribs/sternum.
Dr Machart has recorded “no injury to the neck”.

The applicant’s complaints were recorded as pain and stiffness of the left shoulder, pain and stiffness of the left middle finger, and pain and stiffness of the right knee and in the quadriceps area.

On examination, Dr Machart recorded that the applicant was hypersensitive, reporting pain with any movement and tenderness when touching skin.

Dr Machart recorded the applicant’s orthopaedic injuries at the time of the injury as sternal fracture healed; left shoulder AC joint ligament reconstructed, with severity of pain and stiffness not in line with expected prognosis and specialist documentation provided; left third metacarpal radiologically healed, with stiffness and hypersensitivity noted; healed scars left leg; and right surgical scar. He did not find evidence from the applicant, or contemporaneous evidence, of spinal injury.

Dr Machart assessed the applicant’s WPI as 12%. He disagreed with Dr Bodel’s assessment of the applicant’s cervical spine. He found no evidence of cervical injury. None was reported by Mr Jabur and there was no contemporaneous evidence of cervical injury. There were no cervical investigations. There was no evidence that cervical injury caused diminution of Activities of Daily Living, as opposed to other pathology.

SUBMISSIONS

The parties’ submissions have been recorded and I will therefore summarise them only briefly.

Applicant

The applicant submitted that the sole issue is whether he suffered an injury to his cervical spine on 23 March 2017. He referred to his first statement. There is some uncertainty about how far he fell, but Russell SC DCJ recorded it as six metres. He submitted that it doesn’t matter. It was a considerable distance, onto concrete, with a significant impact, and he sustained multiple injuries as a result.

The applicant referred to the St Vincent’s Hospital Discharge Summary. His neck was collared. We do not have the ambulance records, but they clearly considered his neck was at risk. He also underwent CT scan of the cervical spine. It is fair to say it was normal.
The applicant submitted that there were clearly communication difficulties, referring to his work friend interpreting. His skills are unknown. There is reference to the applicant speaking Farsi.
It was recorded that there was no loss of consciousness, but the applicant referred to
St Vincent’s Hospital records which recorded a reduced level of consciousness, multiple fractures and head trauma. He had complained of headaches. He had injured his shoulder, hand, knee and head, so there was contact right along his body. He referred to his evidence that he had cramping in his neck. He submitted his neck injury was insignificant compared to his other injuries.
The applicant referred to his evidence of complaints about his neck to his physiotherapist and the evidence of the physiotherapist’s chart. He submitted that while the respondent would draw attention to the lack of complaints to Drs Yee, Sorial and Rizkallah, that is not surprising. The physiotherapist has to treat “hands on”.
The applicant submitted that there are deficiencies in his initial statement, due to translation problems. His evidence that he believed his neck pain was related to his shoulder appears to be consistent with what the physiotherapist put down.
The applicant referred to Dr Bodel’s evidence. He submitted that it was significant that at the time he saw Dr Bodel, he clearly had a disability in his neck, with findings of DRE II. There is also lay evidence that supports neck pain from early on.
The applicant submitted that the dynamics of the fall were such that there is a high probability that he injured his neck in the process. This was taken up by Dr Bodel. There is compelling logic in what he said about the fall. It is largely irrelevant whether there was a loss of consciousness or reduced consciousness.
The applicant had an Arabic-speaking GP, which he submitted may at first lead one to think there was no communication problem, but there are many different dialects. None of his other treating practitioners speaks Arabic. Dr Botros’s “efficiency of note-taking” is repeated throughout. He mostly recorded the action taken, and little in the way of examination. The applicant submitted I cannot take anything from the notes.
As regards Dr Machart’s report, the applicant submitted that he has recorded a history of a fall of two to three metres, whereas all other histories have it as more than six metres. He has recorded “no injury to the neck”, but it is not clear if he took this from the St Vincent’s Hospital notes “or what”. He did not examine the applicant’s neck and did not look at the restrictions found by Dr Bodel. It is wrong that there was no investigation of his neck. The applicant submitted that Dr Machart’s evidence is of no assistance at all. There is no evidence to refute that of Dr Bodel.
The applicant submitted there was compelling evidence. There is no other explanation of the neck problems identified by Dr Bodel. If they were not caused by the fall, what is the alternative? He submitted there is none, and I would be comfortably satisfied there was an injury to his cervical spine in the fall.
In reply to the respondent’s submissions, the applicant submitted that there is no information about the facilities at Nepean Hospital for people whose first language is not English. In 2015, he attended the hospital with complaints about his chest wall and left shoulder. There was a precautionary x-ray of his cervical spine but no complaint about his neck or reduced range of movement in his neck. The same applies to his attendance in 2016. The x-ray was normal, and there is nothing in the notes about restricted range of movement, which is the predominant feature now.
The applicant submitted that the condition seemed to have resolved and he was back at work. This would not in any way play on my decision and was not inconsistent with the submissions he had made. The respondent has submitted that the applicant’s shoulder injury is radiating to his neck, but there is no medical evidence to support this.
The applicant submitted that Dr Bodel has explained it. He is a well-regarded orthopaedic specialist of long-standing, an Approved Medical Specialist and Medical Assessor from the beginning. He is the one person who has examined the applicant’s neck and has given his opinion, and there is no opinion to the contrary. It is not available to decide it’s just radiating pain, as there is no medical evidence.
As regards the applicant not mentioning his neck in his earlier statement, he submitted this was explained by his later statement, which was interpreted by an accredited interpreter. We don’t know who translated the earlier statements, but he corrected them with an interpreter.

Respondent

The respondent submitted that an explanation for the applicant’s neck problem is that it is a referred issue from the left shoulder trapezius, radiating up from the neck. That is what the applicant has described, including to Dr Bodel.
The respondent referred to the applicant’s statements. He has made submissions on his lack of facility with English, but in December 2019, he made a statement in which he referred to the medical evidence, but there was no mention of his neck. His evidence that he was not conscious of events until the following day is not borne out by the clinical notes.
The respondent submitted that the first diagnosis of a discrete injury to the applicant’s neck was made by Dr Bodel in his report dated 13 February 2020. The clinical records of the physiotherapist are all directed to the applicant’s shoulder, with no reference to the neck itself. There is reference to the upper trapezius.
The respondent submitted that as the applicant was transported to hospital in a cervical collar, it was understandable that there would be an investigation of his cervical spine. This is not a situation where there were discrete injuries that settle, but the cervical spine remained, was investigated and, for example, a disc protrusion was found. There is no radiology, nothing from the treating practitioner and there are statements from the applicant’s relatives that he complained about his neck. The respondent submitted this may well be the case, as he had problems coming from his shoulder. The only radiology shows no pathology. A mere complaint of pain does not establish injury.
The respondent submitted there was a series of self-serving statements from relatives and a statement from the applicant that puts “gloss” on an earlier comprehensive statement. The applicant complained about his thoracic and lumbar spines, which were assessed. There were no persisting complaints. It would be expected that if the applicant injured his cervical spine, he would also have injured his lumbar spine. The respondent submitted I would be more comfortable if I had a neurosurgeon to explain why the applicant’s cervical spine was more likely to be injured than his thoracic and lumbar spines.

The respondent submitted that the applicant’s evidence would not be enough to satisfy me of injury to his cervical spine. It was not until a “throwaway line” from Dr Bodel that there was an assertion of injury to the cervical spine. The applicant’s last statement came into being after the previous proceedings were discontinued, in an attempt to “shore up” an injury to the neck. The provenance and timing of the statement should be cause for concern. There was no issue with the neck itself, and it was not until Dr Bodel assessed it that efforts were made to bolster his opinion.
In response to my question as to whether either party wished to make submissions regarding the motor vehicle accidents in 2015 and 2016, the respondent re-opened its submissions. It submitted the applicant attended hospital twice, complaining of shoulder girdle and neck pain. The applicant was capable of getting his point across to medical practitioners and getting investigated. None of the doctors has been told about it. It dilutes the submission that there is no other cause but the fall from height and detracts further from the weight I might give it.

SUMMARY

The sole issue in dispute is whether the applicant sustained injury to his cervical spine, in addition to the accepted injuries, on 23 March 2017.
Regardless of the distance the applicant fell, the evidence about which ranges from 2 to
3 metres to 10 metres, and whether or not he lost consciousness as a result, there is no doubt that he fell a significant distance and sustained serious injuries. In my view, the finding of Russell SC DJC that the distance was approximately six metres is likely to be accurate, given that it resulted from a prosecution by SafeWork NSW and there is reference to an Agreed Statement of Facts, which his Honour summarised.
The difficulty facing the applicant is not only the lack of contemporaneous medical evidence that he injured his cervical spine in the fall, but also his inconsistent evidence. He has attempted to explain the discrepancies in his evidence and has also provided evidence from family members in support of his claim.
The Claim Form does not refer to injury to the applicant’s neck. That may be explained by his evidence that he believes he did not report it immediately because of the seriousness of his other injuries.
The applicant’s poor command of English has been well documented in the material before me, and he has referred to it in his first statement. In his second statement, he gave evidence that he was unsure why the symptoms in his neck had not been recorded, but his limited English was a factor in communication; and in his third statement, he gave evidence that his first statement should have mentioned his neck. He would therefore like to add “neck pain” to his disabilities. He had difficulty communicating with his GP.
There is no indication that Mr Jabur’s first statement was interpreted for him. However, he has not said that he had difficulty in providing the statement due to his poor English. He has attempted in his second statement to explain why his treatment providers did not record an injury to his neck.
According to the applicant, his first statement was commissioned by his solicitors. It was obviously therefore obtained for the purposes of his claim for workers’ compensation, and a potential claim for work injury damages, which was foreshadowed in the letter of demand.
It appears unlikely, therefore, that care would not have been taken to ensure the accuracy of the first statement. It includes a detailed description of the accident itself, including events leading up to the fall; and that the edge of the building was unprotected, but the applicant had been informed by co-workers that timber was later added to the scaffolding.
The statement also contains significant detail about the applicant’s medical treatment, although I assume it was taken from the medical reports. Mr Jabur referred to having regularly told his treating doctors about his right leg pain and instability, and the situation was “infuriating”. He relayed his concerns to his GP, but felt his doctors ignored them. He did not say he had difficulty communicating with his GP, or indeed with any other practitioners. He was apparently able to communicate with Dr Sorial when he consulted him about issues with his right leg. As I have noted, the statement listed 43 disabilities and detail about the applicant’s scarring, with no mention of his neck or cervical spine.
The applicant’s supplementary statements were made after Dr Bodel’s first two reports, and after Dr Bodel maintained his opinion that he had sustained a frank injury to his neck. I have approached the evidence with some caution.
I have given little weight to the evidence of Ms Hashem and Mr Al-Nuaimi. Their statements were made about four years after the injury, yet each is able to recall that the applicant complained about his neck within weeks after the fall. Ms Hashem ventured the opinion that the altered use of the applicant’s arms caused tension and cramping in his neck, so that he complained more as time went on. Mr Al-Nuaimi believed it was because he relied more on his right arm. Neither is qualified to reach that conclusion.
The evidence of the lay witnesses, and indeed that of the applicant, is also at odds with the history provided to Dr Bodel by Mr Jabur’s solicitors, which was stated to be on his instructions, that he developed the level of pain five or seven months after the injury. It is assumed that this history was provided so Dr Bodel could opine on whether the applicant had developed a consequential condition of his cervical spine, rather than having sustained a frank injury. He was firmly of the opinion that the applicant had sustained a frank injury.
I am therefore left with evidence that the applicant believes he injured his neck in the fall; he reported it to his doctors, but it may not have been recorded due to language difficulties; his neck pain became more noticeable as his other injuries stabilised; he believed his neck pain originated in his shoulder so he did not describe it as a separate injury; it deteriorated with time; his solicitors’ instructions to Dr Bodel that he developed the level of pain some months later; and his first statement, made almost two years after the injury, when any problems he may have with his neck would be assumed to have manifested themselves, but when he failed to mention his neck at all.

I believe I will be more assisted by the treating medical evidence than that of the applicant or his relatives.
The applicant was wearing a cervical collar when he was admitted to St Vincent’s Hospital, and it is assumed it was fitted by the ambulance officers, as he was conveyed to hospital by ambulance. There is no evidence from Ambulance NSW.
It is just as likely that the cervical collar was fitted as a precautionary measure as it is that the applicant had sustained injury to his neck. He had fallen, on any account, some distance, and it is unlikely that the ambulance officers would be in a position to know the full extent of his injuries on examination at the accident site.
The CT pan scan covered not only the applicant’s cervical spine, but also his brain, chest, abdomen and pelvis. Once again, such investigation is equally consistent with caution as it is with any complaint of, or concern about, his neck. As he submitted, the CT scan of his cervical spine was essentially normal.
Between the date of his admission to St Vincent’s and his discharge, the applicant underwent the investigations I have referred to above. He did not undergo any further investigations of his neck, which I would have expected to occur if those treating him had any concerns about that part of his body.
The applicant’s colleague, “Will”, was noted as having interpreted for him at the hospital. As he submitted, it is not known how skilfully Will interpreted. It is not known whether he spoke Farsi, which is the applicant’s first language. However, there are many entries in the nursing records, which, while acknowledging the language barrier, record complaints of pain. It is not my intention to refer to every entry, but some examples will suffice.
On 25 March 2017, it was recorded that the applicant’s family was present, assisting with translation. His main complaints were of left shoulder pain; right knee pain; and a small cut in the left parietal region. He complained of dizziness, occasional diplopia and [illegible].
On 27 March 2017, it was recorded that the applicant was “NESB – Arabic but able to communicate using minimal English and ~~sign~~ pointing to body parts to describe location of pain”.
On 29 March 2017, it was recorded that “translating with family”. The applicant’s complaints were recorded. It was also recorded on that date that the applicant “has very supportive family – a friend translates on phone as pt speaks Arabic”. The name of this friend is not known, but it seems unlikely that it would not have been noted had he or she not been able to adequately translate. There is also a record on the same date that “used his brother on phone for interpretation”; and later that day “interpreter over phone used – advised going to rehab”.

Of course, the applicant said in his second statement that he believed he did not report the injury to his neck immediately because it was insignificant when compared to his other injuries, but his neck pain became more noticeable as those injuries stabilised. That may provide an explanation for the lack of any record of complaints about his neck in the hospital notes. However, he said in this third statement that the cramping pain in his neck was present immediately after the injury. As he believed it originated from his left shoulder, he did not describe it as a separate injury at first.
Turning to the evidence of the applicant’s GP, it is true, as the applicant submitted, that there is an “efficiency of note taking”, leaving aside the applicant’s claim that there were communication problems. However, Dr Botros referred the applicant for physiotherapy to his leg, hand and shoulder, investigations of his shoulder and hand, and for specialist attention, including from Dr Yee and Dr Rizkallah.
Dr Botros’s records include references to discussions about the importance of physiotherapy; pain management; the outcome of specialist consultation and the “pros and cons” of particular medication. There is nothing in the records to suggest there were difficulties in communication.
None of the applicant’s treating specialists has recorded complaints about his neck. He has submitted that this is not surprising, as a physiotherapist’s treatment is “hands on”. It is also true that each was perhaps concentrating on his own area of expertise, although Dr Sorial, who was treating Mr Jabur’s right knee, also examined his left hand. However, I would have expected that at least one of three treating specialists, and in particular Dr Rizkallah, who was treating his shoulder, would have recorded the troubling symptoms that the applicant claims to have been experiencing in his neck. None of the specialists has reported any difficulty in communicating with the applicant.
Apart from Dr Bodel’s evidence, the applicant relies on the evidence of Energize Physiotherapy. He has given evidence that he constantly reported neck pain to his physiotherapist, who consistently massaged his neck.
The physiotherapist has recorded an initial language barrier. However, when an interpreter was present, the clinical notes record no complaint about the applicant’s neck. The shading on the left side of the neck on the pain diagram is equally consistent with pain coming from the trapezium as it is with pain in the neck. The applicant submitted that there is no medical evidence that this is the case. It is, however, consistent with the physiotherapist’s notes.
The physiotherapist’s notes consistently refer to the applicant’s left upper trapezium and “soft tissue work”, which I assume to mean massage, and which is consistent with the applicant’s evidence. There is reference to neck-left shoulder pain (not “neck and left shoulder pain”), and once again, that could be consistent with pain radiating from the shoulder to the neck, as could massaging the neck.
The fact that the physiotherapist may have massaged the applicant’s neck (if he or she did so) while also massaging his shoulder does not establish that he had an injury to his neck. Pain is not an injury. In the absence of a report from the physiotherapist/s that may have clarified the issue, the evidence in my view is equivocal. Given the deficiencies in the rest of the evidence, it does not persuade me that the applicant has sustained an injury to his neck.
That leaves the evidence of Dr Bodel in the applicant’s case. He appears to have based his opinion that the applicant had sustained injury to his neck on his findings on examination of a reduced range of motion. He had difficulty taking a history, due to the applicant’s poor English and that of his accompanying friend. He has not recorded any complaints of symptoms in the applicant’s neck. One of his findings was that the applicant had tenderness in the trapezius muscles at the base of the neck, which is consistent with the findings of the physiotherapist/s. The fact that Dr Bodel found symptoms in the applicant’s neck does not of itself establish that he injured his neck in the fall.
Dr Bodel firstly opined that it was inconceivable that the applicant would not injure his cervical spine in a fall of 10 metres, when he was knocked unconscious. When he was advised that there was some dispute about both, he provided his opinion as to the likelihood, in percentage terms, of an injury to the cervical spine in respect of falls from various heights. However, it is necessary to determine the dispute on the evidence in this matter, not merely on Dr Bodel’s opinion as to the percentage likelihood of the outcome of various falls. While I accept that he is an experienced and well-regarded orthopaedic surgeon, that does not in my view lift his opinion in this regard above speculation.
The applicant submitted that, if the neck problems identified by Dr Bodel were not caused by the accident, there is no alternative. That is not entirely correct. He had been involved in two prior motor vehicle accidents, in each of which, according to the hospital records, he injured his neck. These may have been minor incidents, and they may have had no longstanding effects, but that is not a matter I need to determine. Dr Bodel was given no history of the motor vehicle accidents and was able to obtain very little assistance in recording a history from the applicant himself. I do not know whether his opinion would have been altered by that history. In view of the other evidence, both lay and medical, to which I have referred,
I am not persuaded by Dr Bodel’s evidence that the applicant sustained injury to his cervical spine on 23 March 2017.
The applicant was critical of Dr Machart’s evidence, and I agree that it was of little assistance in my determination. Dr Machart has recorded that there was no injury to the applicant’s neck, without further explanation; and has found no evidence of cervical injury, but he does not appear to have examined the cervical spine. He has recorded the applicant’s symptoms, which did not include cervical spinal symptoms. Dr Machart noted that the applicant spoke little English. However, he was accompanied by an interpreter, about whom Dr Machart made no complaint. Whatever the shortcomings of Dr Machart’s evidence, the applicant bears the onus.
In the matter of Nguyen v Cosmopolitan Homes[2008] NSWCA 246 (Nguyen), the Court of Appeal (McDougall J; McColl JA and Bell JA agreeing), said (at [48], referring to the decision of the High Court in Malec v JC Hutton Pty Limited[1990] HCA 20; (1990) 169 CLR 638):
“On analysis, I think, what their Honours said is not inconsistent with the requirement that the tribunal of fact be actually persuaded of the occurrence or existence of the fact before it can be found. On their Honours’ approach, what is required is a determination of the respective probabilities of the event’s having occurred or not occurred. There is nothing in that analysis to suggest that the determination in favour of probability of occurrence should not require some sense of actual persuasion.”
The Court of Appeal in Nguyen went on to say [at 55]:
“The position may be summarised as follows:
(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
For the above reasons, I do not feel a sense of actual persuasion, on the balance of probabilities, that the applicant sustained injury to his neck on 23 March 2017. There will accordingly be an award for the respondent in respect of the claim for injury to the cervical spine.

The matter will be remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of injury to the applicant’s left upper extremity (left shoulder and hand); right lower extremity (right knee); and TEMSKI scarring.
The orders are as set out in the Certificate of Determination.

[2021] NSWPIC 433

25 October 2021