Kallon v P & M Quality Smallgoods Pty Ltd
[2022] NSWPIC 534
•23 September 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Kallon v P & M Quality Smallgoods Pty Ltd [2022] NSWPIC 534 |
| APPLICANT: | Alhaji Kallon |
| RESPONDENT: | P & M Quality Smallgoods Pty Ltd |
| SENIOR Member: | Elizabeth Beilby |
| DATE OF DECISION: | 23 September 2022 |
CATCHWORDS: | WORKERS COMPENSATION - Factual dispute regarding the injurious event; award for the applicant; Held –the applicant sustained an injury to his right shoulder, cervical spine, lumbar spine and consequential condition in the left shoulder and a secondary psychological condition arising from the pleaded event. |
| determinations made: | 1. The applicant sustained an injury to his right shoulder, cervical spine, lumbar spine and consequential condition in the left shoulder and a secondary psychological condition arising from the pleaded event. 2. The following documents should be provided to the approved medical specialist: (a) Application to Resolve a Dispute and attached documents; (b) A Reply by the first, second and third respondents to the Application to Resolve a Dispute, and (c) late documents dated 12 May 2022 and 15 June 2022. 3. Once the applicant’s impairment has been assessed, the matter should be listed for telephone conference to discuss and then determine any entitlement to weekly benefits. |
STATEMENT OF REASONS
BACKGROUND
Alhaji Kallon (the applicant) commenced employment with P & M Quality Smallgoods Pty Ltd (the respondent) as a machine operator in September 2012. His role involved transferring and sorting meat that was then used to produce smallgoods and sausages.[1]
[1] Application page 1.
There was no dispute that the applicant’s role was one of a heavy nature which involved moving bags of meat sometimes weighing 20-25kg.
On 8 August 2017 the applicant says in his statement that he and a co-worker were assembling a meat grinder machine which had a lid weighing approximately 100kg. The lid bounced backwards and fell on to the applicant pushing him backwards. The applicant’s foot was then caught on a nearby trolley and he slipped and fell onto another machine.
The applicant[2] quite clearly says that the lid hit the applicant’s shoulder and collarbone and he immediately felt pain there. He also says that after, his foot got caught on a nearby trolley and he fell into a machine which was located behind the meat grinder. The applicant says that he fell with his lower and middle back landing on the trolley causing pain across his whole spine.
[2] See Statement.
The applicant claims injuries to his cervical spine, lumbar spine, right shoulder and a consequential injury to his left shoulder. In addition, the applicant says he continues to suffer from a secondary psychological condition.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (Application) and attached documents;
(b) Reply to the Application to Resolve a Dispute, and
(c) Application to Admit Late Documents (late documents) dated 12 May 2022 and 15 June 2022.
In addition to the above documents submissions were received from the applicant on 14 June 2022 and 16 August 2022 (relating to weekly compensation).
ISSUES IN DISPUTE
The parties agree that the following issues remain in dispute:
(a) Did the applicant suffer an injury in the manner described?
(b) Has the applicant’s condition resolved?
The s 78 Notices do not dispute injury by way of a consequential condition to the left shoulder and a secondary psychological injury.
EVIDENCE
I will now examine the filed evidence.
MEDICAL EVIDENCE
Dr Matthew Giblin
Dr Giblin has prepared a report dated 5 November 2018.[3] The history that Dr Giblin takes is that the applicant was moving a heavy object when he fell across some metal. Since that time the applicant has had pain in his neck, right shoulder, left shoulder and lower back. The applicant complained about cervical pain, bilateral shoulder pain and lower back pain. On examination, Dr Giblin found severely reduced movement of the cervical spine and right shoulder, reduced movement of the left shoulder and lumbar spine (without any significant peripheral neurological signs).
[3] Application page 16.
Dr Giblin examined the radiology of the various body parts and opined that the applicant’s injuries were consistent with the accident described. However, there was a significant amount of anxiety, apprehension and allodynia surrounding the circumstances of injury.
Dr Giblin accepted that the accident would have caused back pain and at least an aggravation of a pre-existing degenerative change in the right shoulder. If it was to be accepted the right shoulder movements were quite restricted as they are, it would also be expected that there would be some restriction in the left shoulder movements due to overuse of that arm to protect the other. He also thought that there would be likely to have been some aggravation of underlying degenerative changes of the cervical spine. Dr Giblin at that time assessed the applicant as having a 38% whole person impairment of which 24% was related to the right shoulder.
Dr Moses
The applicant was referred to Dr Moses by Dr Antoun and first saw him around September 2017.[4] At that stage the applicant said he was struck in the right upper chest and sternum by a machine cover which also resulted in a contusion to his back. He complained of ongoing pain in the chest, shoulder, thoracic and lumbar regions. At that time Dr Moses was unable to examine the applicant appropriately due to significant pain on any movement.
[4] Application page 31.
The applicant returned to see Dr Moses some three weeks later[5] and at that stage the applicant says that his pain was worsening and he continued to experience instability in his acromioclavicular joint and pain in the parascapular muscles and trapezius along the chest wall.
[5] Application page 33.
Some two days later on 22 September 2017[6] Dr Moses reviewed the applicant with the results of his MRI scan of the A-C joint and shoulder which only revealed degenerative changes and no significant structural problems. Importantly, Dr Moses then was provided with assistance by the applicant’s brother who was translating on the telephone and he was able to ascertain that the applicant was experiencing right-sided cervical neck pain and quite significant burning across the trapezius and chest wall.
[6] Application page 34.
Dr Moses then opined that the brachial plexus and cervical spine needed further evaluation and he then recommended a further MRI scan.
On 29 September 2017 the applicant returned to see Dr Moses[7] with the MRI results. The MRI revealed a C5/6 posterior central disc protrusion to the left with annular tear with flattening of the cord but no signal change in the cord. Dr Moses explained these results to the applicant with the help of an interpreter over the phone. The applicant understood that the left-sided disc bulge did not explain the right-sided symptoms. On further requesting with the interpreter the applicant explained he was experiencing pain in the distribution of his trapezius muscle which was of a muscle spasm in nature. Dr Moses then injected the right acromioclavicular joint which assisted with shoulder pain and range of motion in the arm at that time.
[7] Application page 37.
The applicant returned to see Dr Moses once again on 10 October 2017[8] and the applicant complained that he continued to have pain down his entire arm. Dr Moses observed that the humeral head was subluxed anteriorly for the first time. Dr Moses opined that the current injury was consistent with the mechanism of injury that he sustained at work and he explained to him again that the referred pain he was feeling in his back, neck and arm are consistent with his shoulder injury and predominantly due to muscle spasm secondary to his shoulder. Dr Moses then referred the applicant to see Dr John Trantalis to examine his suitability for a surgical intervention regarding the shoulder instability.
[8] Application page 37.
Dr Daniel Rahme
The applicant was referred to Dr Rahme by his general practitioner Dr Almansur and first saw him early October 2017[9] which was approximately two weeks after the workplace injury. Dr Rahme observed that the applicant had significant pain in his right shoulder and arm and was holding his right arm in an abnormal posture. After looking at the MRI scan, Dr Rahme opined that it is likely the applicant suffered an acute pathology at the time of his work injury on a background of pre-existing, asymptomatic shoulder pathology. He suggested that the applicant may require a bony stabilisation procedure and referred the applicant to Dr Trantalis who has a sub-specialty interest in that type of procedure.
[9] Application page 41.
Dr Trantalis
The applicant consulted with Dr Trantalis on 12 August 2017.[10] At that stage he had a history that the applicant was hit by heavy machinery and injured his shoulder and over the next day or so his shoulder became very painful and he has had ongoing problems since that time.
[10] Application page 42.
On examination, Dr Trantalis found the applicant very apprehensive and difficult to examine because of the pain he was feeling. Dr Trantalis opined that the applicant likely had a very unstable shoulder and in the setting of degenerative changes this was going to be a very difficult problem to manage.
The applicant returned to see Dr Trantalis on 20 October 2017[11] after having a CT scan. The CT scan demonstrated changes consistent with both recurrent traumatic anterior instability and also osteoarthritis of the glenohumeral joint secondary to the instability.
[11] Application page 43.
Dr Trantalis was not able to treat the applicant by way of stabilisation procedure and recommended that the applicant get reviewed by another shoulder surgeon for further treatment.
Dr Simon McKechnie
The applicant was referred to Dr McKechnie, neurosurgeon by Dr Almansur and first saw him in October 2017.[12] He had a history at that stage that an item had fallen on the applicant and he had struck another machine. Following the accident he had complained of persistent neck pain, right shoulder pain, numbness in the right hand as well as lower back pain.
[12] Application page 47.
Based on the MRI findings, (small disc protrusions at the left of C5/6 without nerve root impingement), he suggested the applicant should start cervical physiotherapy when he is able to.
The applicant was reviewed by Dr McKechnie on 26 October 2017.[13] At that stage the applicant was still complaining of neck and lower back pain. Dr McKechnie had the MRI scan of the lumbar spine which demonstrated a left L3/4 disc protrusion impinging on the L4 nerve root with a slightly smaller L4/5 disc protrusion causing mild lateral recess stenosis. He suggested the applicant should continue with physiotherapy and he recommended the applicant commence a trial of Lyrica.
[13] Application page 48.
The applicant was once again reviewed by Dr McKechnie on 15 November 2017[14] and was still complaining of persistent pain. Dr McKechnie understood the applicant did not want to have a CT-guided cortisone injection in the cervical spine and thought the applicant should then try Tramal if the pain was more severe otherwise to continue with paracetamol and low-dose anti-inflammatories.
[14] Application page 49.
Dr Allan Young
The applicant was referred to Dr Young, orthopaedic surgeon, by Dr Almansur in November 2017 in relation to his right shoulder issues.[15] So far as the mechanism of injury is concerned, he takes a history that the applicant was putting machines together and a machine fell on him. The applicant reported that he fell backwards and experienced generalised pain in the right side of the neck, the right shoulder and radiating down the arm. He also reported neck pain going down his back. Dr Young opined that the applicant appeared to have longstanding arthritic changes and it was quite likely that he had had a significant aggravation of his arthritis. Dr Young queried whether a lot of the symptoms were coming from the AC joint pathology and as such he performed a cortisone injection into the AC joint in his rooms at the time of consultation. This did not result in any improvement in pain.
[15] Reply page 124.
Dr Young did not recommend any surgical intervention in the form of either arthroplasty or arthrodesis which was undesirable due to the applicant’s age and because the symptoms probably relate to arthritis.
Dr Young recommended the applicant return with a translator in one month’s time.
The applicant returned to consult with Dr Young on 7 December 2017.[16] At that stage Dr Young did have the assistance of an interpreter. He understood that the applicant’s right shoulder remained very painful and the applicant experienced paraesthesia down the arm. After examining the applicant and the imaging, Dr Young formed the view that he was uncertain as to the exact cause of the applicant’s presentation but certainly thought his pain behaviour was somewhat out of proportion to what you normally see in patients with arthritis.
[16] Reply page 128.
Dr Young was uncertain whether the pain related to the arthritis shown on the imaging or whether he developed a pain syndrome. He did suggest however treatment to the shoulder by way of ultrasound-guided cortisone injection in the right shoulder and AC joint and also a nerve conduction study performed.
Dr Almansur
Dr Almansur has prepared a short report dated 13 December 2009.[17] In that report Dr Almansur notes the applicant first presented on 16 July 2017 with complaints of right shoulder pain however on assessment movement was fine and full and the applicant was prescribed Celebrex for as possible diagnosis of tendonitis.
[17] Application page 139.
On 3 October 2017 the applicant presented again in relation to his right shoulder, neck and chest wall. It is those symptoms that are now the cause of the applicant’s chronic pain and current disability. Dr Almansur opined that the right shoulder pain and difficulties in movement of the right shoulder were mainly related to severe work-related injury on 8 August 2017.
Dr Almansur referred the applicant to Dr Nazha in July 2018.[18] In that referral Dr Almansur describes the applicant’s condition which included a blunt trauma into the chest wall and right shoulder and from which the applicant now has neck and lower back pain.
[18] Application page 198.
In a further report dated 28 August 2019[19] Dr Almansur is writing to assist the applicant in obtaining a disability support pension. Dr Almansur opines the applicant has got a chronic complex pain syndrome affecting his right shoulder, neck and back after a work-related injury in 2017.
[19] Application page 220.
It is clear that in the medical certificates that Dr Almansur has produced particularly in 2020[20] is that he opines that the applicant has a chronic complex pain condition relating to the right shoulder, neck and back following the work-related injury. The symptoms he describes are pain in the right shoulder, neck and back and restricted movement of the right shoulder. He also recommends a psychological review as the applicant has depressed mood, anxiety, poor concentration, poor energy and behavioural disturbance.
[20] Application pages 149 and 150.
Dr Tim Ho
The applicant was referred to Dr Tim Ho, pain and rehabilitation specialist by Dr Young (shoulder specialist).[21] The applicant had pain issues which included chronic pain syndrome, and right winging of the scapula together with likely pre-existing right AC joint and GH joint osteoarthritis. The applicant reported that he had severe, widespread body pain involving the neck, bilateral shoulders, lower back and bilateral hips. This was causing significant activity, sleep and emotional interferences.
[21] Reply page 133.
Dr Ho observed significant catastrophisation and fear avoidance and poor self-efficacy related to the pain together with significant pain behaviour. Dr Ho recommended physiotherapy and a pain management program.
Dr McGroder
Dr McGroder prepared a report dated 17 January 2018[22] at the request of the respondent’s insurer.
[22] Reply page 129.
Dr McGroder took a history that an object had fallen on the applicant’s chest on 8 August 2017 and he had then fallen backwards on to another machine. The applicant had injured his neck, chest, lower back and right shoulder.
Dr McGroder opined that the applicant did sustain an injury in an incident at work on 8 August 2017. There was some evidence of winging of the right scapula which was the only objective physical sign that Dr McGroder could observe. He suggested the applicant have further studies of thoracic outlet and EMG studies which may assist in diagnosis.
Dr McGroder was aware that the records from Auburn District Hospital indicated that the applicant sustained an injury to his chest when an object fell on it and there was no history of him having fallen and hit any other object. Dr McGroder was concerned that it appears that the pain in the right shoulder appeared sometime after the frank incident which he described as appearing in a “bizarre fashion”. Dr McGroder did not think that the applicant had a significant problem with his neck or lower back.
Associate Prof Paul Miniter
Associate Prof Miniter has prepared a report dated 21 June 2018 at the request of the respondent’s insurer.[23] Associate Prof Miniter described the applicant as ‘difficult to examine’.
[23] Reply page 145
On physical examination Associate Prof Miniter observed what he described as bizarre non-physical presentations throughout the examination. He thought there were significant features of non-organic behaviour in the examination.
Associate Prof Miniter opined that the applicant has severe osteoarthritis affecting the right shoulder which is of a longstanding problem. It certainly involved a trauma which predated 2013 which was in likelihood when he was domiciled in Sierra Leone.
Associate Prof Miniter could see no evidence of pathology in the lumbar spine or the cervical spine that was associated with the presentation.
At paragraph 4 of his report Associate Prof Miniter understands that there had been accepted soft tissue injuries in relation to the neck, chest wall and lower back but he could see no evidence that such injuries were related to the workplace.
Associate Prof Miniter has prepared a second report dated 25 September 2018.[24] In that report Associate Prof Miniter was provided with the discharge sheet from Auburn Hospital Emergency Department and notes that there was no complaint in relation to the shoulder. He therefore states that the workplace was not the main contributing factor to the applicant’s presentation regarding his shoulder.
[24] Reply page 151.
Associate Prof Miniter has prepared a third report dated 29 April 2019.[25] At that time the applicant told Associate Prof Miniter that he had developed lumbar spinal discomfort and neck pain following the incident, symptoms which were not reported at the previous consultations.
[25] Reply page 153.
Associate Prof Miniter did observe that the applicant had very poor English despite being given 600 hours of English training when he first came to Australia as a refugee.
Associate Prof Miniter maintained his opinion that it was highly unlikely that the applicant had a meaningful injury. There was no evidence that he had injured his right shoulder in the course of the mechanism of the injury as described to him and it appeared that the neck and lumbar symptoms appeared to have developed at some later time.
Quite clearly Associate Prof Miniter’s opinion was that there was no evidence of any injury.
Associate Prof Miniter makes the comment that he does not have the reports prepared by Dr Giblin.
CIRCUMSTANCES OF THE ACCIDENT
Before I consider the medical evidence, I will make factual findings in relation to the circumstances of the injury. This is an issue that has been clearly put in dispute by the respondent and requires determination. The respondent puts in issue that the accident did not occur in the manner which has been described by the applicant
The starting point is the applicant’s statements. What is quite clear is both his statement dated 15 August 2017 (where he says his back hit against mesh fence guarding) and also in the statement of 11 June 2019 (where he states that he fell into another machine with his lower back and middle back and neck landing on the trolley causing pain across his whole spine) there is a similar picture of striking his back.
I am reminded by the applicant that the area in which the applicant fell was a confined space and he was lifting a heavy piece of machinery (a lock nut). This is quite clearly seen by the photographs which have been annexed to the reply.[26]
[26] Reply at 16 and 17.
The only evidence that I have before me in relation to direct observational experience of the injury is that of the applicant. To this extent it should be observed that both Mr Dayal and also Fihi Kalekale do not provide any evidence in relation to observation of the actual event.
The applicant has asked that I make a Jones v Dunkel [1959] HCA 8 in favour of the applicant in the circumstance of the injury sustained.
Even without the application of a Jones v Dunkel inference, I find that the applicant has provided enough evidence for me to be satisfied that he did indeed fall in the manner which he has described.
It is only one day after the alleged incident on 9 August 2017 where Dr Antoun provides an entry that the metal frame bounced back and pushed him away stepping back into the gate. This must infer some type of collision with the gate.[27]
[27] Application page 61.
Further, approximately one month after the incident, 6 September 2017, Dr Moses takes a history[28] that the applicant “struck in the right upper chest and sternum and in with back machine cover”. This is a contemporaneous record where the applicant indicates that he has had some collision with machinery and his lower back.
[28] Application page 57.
In addition, Dr Almansur takes a history on 3 October 2017[29] that the applicant had a heavy object hit him on the chest, he fell backwards, hit another machine, also his head with that machine, injured upper anterior chest wall, neck, right shoulder, lower back and left chest wall.
[29] Application page 76.
FAILURE TO REPORT SYMPTOMS
The respondent also attacks the applicant’s credibility on the basis of omissions in reporting particular symptoms to his treating medical practitioners. The respondent’s submissions appear to focus on the lack of complaint in relation to various body parts to different general practitioners.
As concisely articulated in the applicant’s written submissions[30] care must be given when considering evidence taken from doctors’ records. Experience dictates that busy doctors often omit or incorrectly record histories of accidents particularly when there are multiple body parts being treated.[31]
[30] Paragraph 3.2.
[31] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34.
I bear in mind in this case that the applicant’s command of English is not comprehensive. To my mind this does indeed explain a lack of clear communication recorded to doctors in relation to experienced symptoms.
The applicant in his submissions at paragraph 5.1 refers to compelling evidence indicating a limited command of the English language. The submissions refer to the following evidence:
(a) Dr Moses’ report dated 22 September 2017 stated “After translation on the phone with his brother I was able to ascertain that he has some right sided cervical pain and quite significant burning pain across the trapezius”.
(b) Dr McGroder’s report dated 17 January 2018 stated:
“Overall, the whole medical assessment was extremely difficulty. A Mandingo interpreter had been booked and this method of consultation was used initial but then the connection terminated for reasons unclear and was unable to be re-established. The subsequent assessment was carried out speaking to Mr Kallon in his limited English.”
(c) The ABI Investigations dated 10 October 2018 stated:
“As per instructions we have interviewed the claimant and obtained a statement from him. Initially via numerous interpreter service companies were unable to locate a Mandingo interpreter. We established that there were no Mandingo interpreters in NSW. We eventually found an interpreter provided that retained a Mandingo speaker in South Australia....”
(d) The ECFMC records dated 9 June 2018 stated “saw an independent doctor yesterday – insurance. Told that his shoulder is an old injury. Still feels pain in shoulder, hot. Unhappy feels he wasn’t given enough time to talk, stating interpreter was not good.”
(e) Associate Professor Miniter’s report dated 29 April 2019 stated “He has very poor English...”
(f) The applicant’s statement dated 11 June 2019 stated:
“I wanted to get better, so I have attended on various doctors and specialists to assist me with my problems, but believe that doctors are having extensive difficulty diagnosing me due to my language barriers”
and
“I also believe that my language barriers would prevent me from locating a sedentary job, as my English is very poor.” (A4.40)
So far as history is concerned, to my mind the lack of reporting is not fatal to the applicant’s case and there is a valid explanation for the absence of complaint in relation to various body parts.
I therefore accept that the applicant has a poor command of the English language and this would affect communication with various medical practitioners.
I will now turn to each body part that has been complained of.
Injury to the right shoulder
It is without doubt that the applicant was able to perform the duties of his employment from the date of commencement with them until the date of the injury. The duties in the role as outlined by the applicant in his statement could only be described as heavy.
In relation to the actual mechanism of injury, it is without doubt that the applicant was involved in an injurious event when a 37kg nut fell from a height and collided with his chest. The effect of the collision was that the applicant was thrown back colliding with a fence behind him.
Shortly after this event the applicant underwent an X-ray on 23 August 2017 which disclosed pathology
‘The applicant underwent a x ray of the right shoulder dated 23 August 2017 stating “right glenohumeral articulation demonstrates advanced degenerative changes with joint space loss, prominent osteophytosis and subchondral sclerosis. There is bone on bone contact. No fracture is seen. Right AC joint is mildly widened with mild degenerative changes. The right clavicle is intact’[32]
[32] Reply page 160.
An MRI then followed on 20 September 2017 which disclosed
‘The applicant underwent MRI scan of the right shoulder dated 20 September 2017 stating “AC joint arthrosis in a pattern which would suggest a degree of chronic stress overload with areas of grade IV chondral wear, osteolysis of the distal clavicle and moderate subchondral bone marrow oedema. No acute AC joint capsule-ligament injury. Gleno-humeral joint OA, with reasonably widespread full thickness chondral wear, cystic change, sclerosis and bone marrow oedema, with bi-concave morphology or the glenoid in transverse cross section...’
It is quite clear that on 8 August 2017 the applicant complained in relation to pain in the right shoulder which is consistent with a finding of an injurious event.
Some one week later, Dr Moses stated that the applicant was experiencing pain in his back, neck and arm which Dr Moses thought was consistent with a shoulder injury.
Dr Rahme, a treating orthopaedic surgeon, also thought at that time that the applicant had sustained an acute pathology at the time of the work injury on the background of a pre-existing asymptomatic shoulder pathology.
I therefore find that on the balance of probabilities the applicant has indeed suffered an injury within the meaning of section 4 of the 1987 Act to his right shoulder. It is also evident that it is likely that he had pre-existing asymptomatic pathology there which has been aggravated in the event.
The applicant’s statements outline the pain that continues to be felt in his right shoulder and to the other disputed body parts and I therefore I reject any assertion made by the respondent that any injury sustained has now resolved.
Injury to the lumbar spine
Once again, the applicant has provided contemporaneous complaint in relation to his lumbar spine and in particular Dr Antoun’s notes dated 9 August 2017 take a history that the applicant was experiencing a stiff back. In addition, it is also recorded that there is a lower back spasm after being hit by a heavy door.[33] Likewise, less than a week later, Dr Antoun on 14 August 2017, takes a history of pain in the mid lower back and tension in the left lower back.[34]
[33] Reply page 175.
[34] Reply page 175.
Within three weeks, Dr Moses in a report dated 6 September 2017, takes a history that the applicant has been struck in the sternum by a machine cover which has resulted in a contusion of the back.[35] This must mean that there has been some collision with his back to cause a contusion.
[35] Reply page 30.
Dr McKechnie, who was also a treating neurosurgeon, examined the lumbar MRI results in a report dated 13 August 2018. It also shows pathology in the lumbar spine.
Dr Giblin ultimately also accepts the applicant’s claim after looking at the MRI of the lumbar spine in November 2018 and agrees that there was no doubt an injury like this, particularly falling back across some metal, would have caused back pain at least.
Against this evidence are the opinions of Dr McGrowder and Associate Professor Miniter. Both are retained experts that have prepared reports for the respondent at various times. Dr Miniter does not refer to the lumbar spine radiology. He also seems to not accept the applicants explanations as to injury, Dr McGrowder is also suspicious of the failure to complain.
As I have accepted the applicant as a credible witness, and accept the reason why there is a lack of complaint recorded, I prefer the evidence of the treating medical practitioners as outlined ( which is consistent with the evidence of Dr Giblin).
I therefore find on the balance of probabilities that the applicant did indeed sustain injury to his lumbar spine in the frank incident as claimed.
Injury to the cervical spine
The applicant has complained in relation to right-sided cervical pain. The first date I can see of cervical complaint in the documents is on 22 September 2017 to Dr Moses. This is only some 6 weeks after the index event.
Dr Moses at that time was able to take a history of the pain after some translation assistance was provided to him by the applicant’s brother on the telephone.[36] This once again highlights the applicant’s difficulty in communication in relation to being able to present his symptomatology in a meaningful way due to his poor grasp of the English language.
[36] Application page 34.
Together with the history given to Dr Moses, an MRI scan taken a few days after that consultation on 26 September 2017 discloses pathology which includes a C5/6 posterior disc protrusion eccentric to the left in association with an annular tear.[37]
[37] Application page 35.
Consistent with that complaint is a history given to Dr Almansur on 3 October 2017 which once again provides a history of neck pain.[38]
[38] Reply page 188.
Dr Moses obviously holds the view that the applicant’s complaints of pain in the neck is consistent with the mechanism of injury and he says so on 10 October 2017. It should be borne in mind that Dr Moses is indeed a treating physician and not a retained expert. He has seen the applicant on many occasions and to this extent I place greater weight on his opinion as he is in the best position to be able to understand the applicant’s complaints.
Dr Giblin also accepts the applicant’s current claim and says that the applicant has suffered an aggravation of a pre-existing degenerative change in the cervical spine. He accepts the applicant’s complaints in his report dated 5 November 2018.
As I have previously stated I prefer the opinions of the treating practitioners ( which is also consistent with the opinion of Dr Giblin) over the retained respondents experts.
I therefore find that the applicant has discharged the burden of proof in relation to a finding of injury to his cervical spine.
Injury to the left shoulder
The injury to the left shoulder is claimed as an overuse of that arm to protect the right arm. This is indeed accepted by Dr Giblin in his report dated 5 November 2018.
What is curious is the respondent has not put the issue of a consequential condition to the left shoulder in dispute in its statutory defence notices. This is not an unusual position to be in as often respondents because they have disputed the primary injury, that is, to the right shoulder, that in the event that an injury to the right shoulder would be found, the left shoulder is also accepted.
In the circumstances that the s78 Notice does not decline the consequential condition to the left shoulder, it has not been properly put in dispute as a separate injury.
Accordingly, there should be a finding in favour of the applicant in respect of a consequential condition to the left shoulder.
Secondary psychological condition
The applicant has submitted evidence which supports a finding of a secondary psychological condition. In particular the treating psychologist Kasim Abai has prepared a report dated 12 February 2021.[39] The report supports the applicant’s contention and diagnoses the applicant as having post-traumatic stress disorder, depression and insomnia.
[39] Application page 51.
The secondary psychological condition has not been put in dispute by the respondent in its s 78 Notice and given there is evidence in support of such a finding, there should be a finding in favour of the applicant in respect of the secondary psychological condition.
Weekly benefits
Whilst both parties have put on short submissions in relation to pre-injury average weekly earnings, it was agreed at the hearing of the matter should be referred to a medical assessor to assess the applicant’s condition, the Medical Assessment Certificate can be received and for discussions to commence in relation to weekly benefits.
Once the applicant’s impairment has been assessed, the matter should be listed for telephone conference to discuss and then determine any entitlement to weekly benefits.
OTHER OBSERVATIONS
Much is said by the respondent that there are non-organic reasons that the applicant is presenting as he does with different doctors. In this regard I look at the comments of Dr McGroder and also to some extent the respondent’s independent medical examiner.
I have found that the applicant has sustained an injury. These questions of over-exaggeration will be a matter for a medical assessor to consider when he or she is assessing the applicant.
In those circumstances the following orders are made:
(a) The applicant sustained an injury to his right shoulder, cervical spine, lumbar spine and consequential condition in the left shoulder and a secondary psychological condition arising from the pleaded event.
(b) The matter is to be remitted to the President to be referred to a Medical Assessor to assess the right shoulder, cervical spine, lumbar spine and consequential left shoulder.
(c) The date of injury is 8 August 2022
(d) The following documents should be provided to the Medical Assessor
(i)Application to Resolve a Dispute (Application) and attached documents;
(ii)Reply to the Application to Resolve a Dispute, and
(iii)Application to Admit Late Documents (late documents) dated 12 May 2022 and 15 June 2022.
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