Kandash v Concept Engineering Pty Ltd
[2022] NSWPIC 121
•23 March 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Kandash v Concept Engineering Pty Ltd [2022] NSWPIC 121 |
| APPLICANT: | Ahmed Dhafer Ahmed Kandash |
| RESPONDENT: | Concept Engineering Pty Ltd |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 23 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - The applicant claims permanent impairment compensation payable under section 66 of the Workers Compensation Act 1987 resulting from alleged injury to right upper extremity, left upper extremity, upper digestive system and scarring in the course of employment with the respondent, the applicant’s claim is declined with the respondent disputing; (a) the applicant sustained consequential injury to his left upper extremity as alleged, and (b) the level of impairment suffered by the applicant resulting from injury sustained in the course of employment with the respondent; Held– the applicant sustained consequential injury to his left upper extremity as a result of the injury he sustained to his right upper extremity in the course of his employment with the respondent; the applicant’s claim for permanent impairment compensation resulting from injury he sustained to his right upper extremity, left upper extremity, upper digestive system and scarring in the course of his employment with the respondent is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment. |
| DETERMINATIONS MADE: | 1. The applicant sustained consequential injury to his left shoulder as a result of the injury he sustained to his right shoulder in the course of his employment with the respondent on 2 October 2019. 2. The applicant’s claim for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 resulting from injury sustained to his right upper extremity (right shoulder) on 2 October 2019, consequential injury to the upper digestive system, consequential injury to his left upper extremity (left shoulder) and scarring is to be remitted to the President for referral to a Medical Assessor for the purpose of assessment of whole person impairment. 3. The following documents are to be forwarded to the Medical Assessor together with this Certificate of Determination and Statement of Reasons: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents, and (c) Application to Admit Late Documents dated 24 December 2021 lodged on behalf of the applicant and attached documents. |
STATEMENT OF REASONS
BACKGROUND
At the time of the alleged injury, the applicant, Ahmed Dhafer Ahmed Kandash (Mr Kandash) was employed by the respondent, Concept Engineering Pty Ltd (Concept). He worked as a machine operator. He is 33 years of age.
In these proceedings Mr Kandash alleges he sustained injury to his right upper extremity (right shoulder) on 2 October 2019 and further alleges he sustained consequential injury to his left upper extremity (left shoulder) and upper digestive system.
Mr Kandash claims permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 (1987 Act) for 21% whole person impairment resulting from the alleged injuries he has sustained to right shoulder, left shoulder, upper digestive system and scarring in the course of his employment with Concept.
Mr Kandash’s claim for permanent impairment compensation is declined and he has been issued with a number of notices in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act)[1]. While Concept accept
Mr Kandash sustained injury to his right upper extremity on 2 October 2019 in the course of his employment and also accept he has sustained consequential injury to his upper digestive system, Concept disputes the applicant has sustained consequential injury to his left upper extremity.[1]Reply at pp 1, 7, 13 and 19.
ISSUES FOR DETERMINATION
The parties agree the following issues remain in dispute:
(a) whether Mr Kandash sustained consequential injury to his left upper extremity as a result of the injury he sustained to his right upper extremity on 2 October 2019, and
(b) the level of permanent impairment suffered by Mr Kandash resulting from injury sustained on 2 October 2019 in the course of his employment with Concept.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
Mr Kandash’s claim for permanent impairment compensation came before me for teleconference on 24 January 2022. Ms Przgoda, solicitor, appeared in the interests of
Mr Kandash and Mr Totara, solicitor, appeared in the interests of Concept. Ms Patterson and Ms De Lemos from EML were present. Mr Kandash was present. At teleconference, Concept withdrew the dispute Mr Kandash sustained consequential injury to his upper digestive system.However, with Mr Kandash’s claim unresolved at teleconference, his claim came before me for conciliation/arbitration hearing on 17 February 2022. Mr Carney of counsel appeared in the interest of Mr Kandash instructed by Mr Simpson, solicitor. Mr Gaitanis of counsel appeared in the interests of Concept, instructed by Mr Totara. Ms Patterson and Ms Sparkes from EML were present. Mr Kandash was present.
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 Personal Injury Commission (the Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents (ARD);
(b) Reply and attached documents, and
(c) Application to Admit Late Documents dated 24 December 2021 lodged on behalf of Mr Kandash and attached documents (AALD).
Oral evidence
Neither party sought to adduce oral evidence or cross examine any witnesses.
FINDINGS AND REASONS
Brief review of evidence
Statement of Mr Kandash
Mr Kandash provided a statement dated 2 December 2021[2]. He commenced employment with Concept on 4 June 2019. He worked on a full-time casual basis. In his role with Concept he “was required to manufacture various profiles of pieces of reinforced steel, wire and other times”.
[2] ARD at p 1.
Mr Kandash sustained fracture injury to his right shoulder on 2 October 2019, for which he initially came under the general medical care of Dr Foo. With MRI scan and orthopaedic referral to Dr Low, Mr Kandash was initially treated conservatively and placed on suitable duties. Mr Kandash subsequently came to surgical treatment under the care of Dr Low on 6 January 2020, which “did not help”. With a failed attempt to return Mr Kandash to work in June 2020, Mr Kandash underwent a series of cortisone injections, which “also did not help”.
Mr Kandash explained:
“Over time I had started favouring my left side to protect the injured right side and I have developed mild symptoms in my left shoulder. I first noticed pain in the left shoulder in December 2020. I underwent some conservative treatment including cold therapy and gentle massage, which I performed myself. These injuries have been declined by the insurer.”
Mr Kandash said he suffered from the following restrictions and disabilities:
“(a) Pain and stiffness in both shoulders. The right is much worse than the left, however I do experience moderate issues with the left side.
(b) Any attempts to push, pull or lift to use my right arm overhead aggravates the pain.
(c) I often have difficulties in sleeping, and will wake up from sleep if I roll on my right side during the night.
(d) I have mild pain in my left shoulder and mild pain in my right elbow.
(e) I used to be very active and enjoyed swimming, playing volleyball and table tennis and jogging but am no unable to do this due to issues with my range of movement in the arms and shoulders, as well as the pain I continue to suffer from.
(f) I have a driver’s licence and can drive an automatic car but only for about one hour. I then have to take breaks or rely on someone else to drive when I am travelling longer distances.
(g) I struggle with household maintenance and cleaning activities particularly overhead activities.
(h) I have issues with range of movement in both shoulders, however the right is worse, as noted above. My range of movement is limited.
(i) Prior to 2 October 2019, I was able to carry out my usual work tasks and activities of daily living. The injuries I sustained as a result of my workplace accident have affected every aspect of my life and many relationships.”
While at the time of providing his statement, Mr Kandash said he remained in the employ of Concept and was undertaking suitable duties, it is apparent from other material before the Commission that Mr Kandash ceased working with Concept in July 2021 and subsequently commenced working with in security at quarantine hotels.
Treating medical evidence
Diagnostic imaging
An MRI of the left shoulder dated 18 March 2021[3] reportedly demonstrated:
(a) intramuscular oedema (grade 1 muscle injury) involving the posterior fibres of the proximal component of the deltoid muscles. No frank tear;
(b) intact tendons of the rotator cuff, long head of biceps tendon, glenoid labrum and gleno-humeral articular cartilage, and
(c) mild thickening of the subacramial-subdeltoid bursa – no effusion.
[3] ARD at p 91.
An MRI of the right shoulder dated 18 March 2021[4] reportedly demonstrated:
(a) mild insertional suprasinatus tendinosis, without frank tear;
(b) status post labral repair – intact;
(c) trace of fluid within the subacromial-deltoid bursa, and
(d) no significant glenohumeral or AC joint arthrosis.
Dr Foo
[4] ARD at p 90.
Mr Kandash came under the general medical care of Dr Foo and the clinical records of Wetherill Park Occupational Health Practice as at 14 September 2020 are in evidence before the Commission[5].
[5] ARD at p 128.
Dr Foo noted the history of injury occurring on 2 October 2019:
“2/10/19 R hand pulled forward when the tension he was holding for the fitter got cut, no immediate pain, but pain started a few min later, worse overnight, sleep affected, better this morning after some med …”
While it does not appear Mr Kandash reported any left shoulder symptoms to Dr Foo, it is evident that despite coming to right shoulder surgery in early 2020, Dr Kandash remained troubled by his right shoulder with return referral to Dr Low on 24 August 2020.
While in yet another return referral letter dated 18 March 2021[6] to Dr Low, Dr Foo noted
Mr Kandash reported his right shoulder pain “has been getting worse with stiffness” and relevant to his left shoulder wrote “superior shoulder pain – MRI on 18/3/21 reported no significant findings except for mild thickening of the bursa”, unfortunately there is no further comment available from either Dr Foo relevant to this further referral.
Woodville Road Medical and Dental Centre
[6] ARD at p 92.
Mr Kandash also came under the general medical care of Dr Balasingham and
Dr Paramalingam, principally in relation to his gastric problems, and the clinical records of Woodville Road Medical and Dental Centre as at 23 December 2021 are in evidence before the Commission[7]. While Dr Balasingham noted a history of right shoulder injury with surgical treatment under the care of Dr Low, it does not appear Mr Kandash reported any left shoulder symptoms to Dr Balasingham or Dr Paramalingam.
Dr Low
[7] AALD at p 2.
Mr Kandash came under the orthopaedic care of Dr Low following referral from Dr Foo and his clinical records as at 11 September 2020 are in evidence before the Commission[8].
Dr Low initially reported to Dr Foo under cover of letter dated 21 October 2019 and it is evident from his report dated 16 January 2020 that he considered Mr Kandash was recovering well from his right shoulder arthroscopic anterior labral repair and cyst decompression performed on 6 January 2020. In his subsequent report dated 9 March 2020, while Dr Low reported Mr Kandash currently had minimal discomfort in his right shoulder “other than lying on that side at night” he noted:“However, Ahmed is now complaining of activity-related pain in his left shoulder which has been present even before surgery.”
[8] ARD at p 117.
In his report dated 1 June 2020 Dr Low noted Mr Kandash had no pain in his right shoulder and “almost full active shoulder range of movement except internal rotation to 30 degrees”. He noted Mr Kandash had returned to work on suitable duties and provided comment “In reality, he may use his arm as comfort allows with no specific restrictions”. While Dr Low discharged Mr Kandash from his care at that time, Mr Kandash was returned for review just shy of three months later with Dr Low reporting on 27 August 2020:
“Since my last review 3 months ago, he has returned to work performing light duties but recently was involved the use of a hammer which he feels has caused new-onset pain in the shoulder. Ahmed now describes a constant background discomfort, even at night, which is exacerbated by movements of the shoulder and has not improved with time. Mobic did help with his symptoms but he has stopped due to gastrointestinal upset.”
Dr Low arranged for Mr Kandash to receive image guided cortisone injection therapy at that time and there is no further correspondence available from Dr Low.
Sydney Shoulder
Mr Kandash subsequently came under the orthopaedic care of Dr Cass and the clinical records of Sydney Shoulder as at 6 December 2021 are in evidence before the Commission[9].
[9] AALD at p 169.
In his initial report dated 18 August 2021 Dr Cass reported following his zoom consultation with Mr Kandash that despite his right shoulder surgical treatment having been “very well performed” by Dr Low, Mr Kandash “has just never settled down” with restricted movement and pain. Dr Cass recommended further cortisone injection, medication and exercise with review following injection.
In his subsequent report dated 19 November 2021, Dr Cass reported following a telephone consultation with Mr Kandash that the further injection had provided limited relief and it is evident Mr Kandash’s right shoulder continued to bother him. While Dr Cass recommended review by a neurologist and use of a cream to be made up by a compounding pharmacist, he cautioned:
“Ahmad at 32 cannot be left the way he is. If we cannot find anything else, eventually a repeat arthroscope of his joint is indicated to release any tight tissues that have been done by the other surgeon, to trim and tidy the joint, to perform a bursectomy, gently get Ahmad moving and try and free up his shoulder. I agree with the point of view of his first treating surgeon the chance of that helping is probably between 60 and 70%, the chance of making him worse is actually very low…”
Sydney West Sports Medicine
Mr Kandash was referred for physiotherapy treatment, coming under the care of Matthew Hicks. Mr Hicks’ clinical records relevant to Mr Kandash as at 23 September 2020 are in evidence before the Commission[10]. While it does not appear Mr Kandash reported any left shoulder symptoms to Mr Hicks, when last reviewed by Mr Hicks on 22 November 2019, which was prior to his right shoulder surgical treatment, Mr Kandash continued to be troubled by his right shoulder.
[10] ARD at p 186.
Sports Physio West Parramatta
Mr Kandash was referred for physiotherapy treatment following his right shoulder surgical treatment, coming under the care of Mitchell Burt. Mr Burt’s clinical records relevant to
Mr Kandash as at 11 September 2020 are in evidence before the Commission[11]. While it does not appear Mr Kandash reported any left shoulder symptoms to Mr Burt, when last reviewed by Mr Burt on 29 July 2020, Mr Kandash appeared to be still working at home on suitable duties. However, of relevance perhaps is that Mr Burt recorded no complaint of left shoulder pain when he presented for treatment on 9 March 2020 despite reportedly complaining of same to Dr Low at around the same time.
Independent medical evidence
Dr Garvey
[11] ARD at p 93.
Mr Kandash was assessed by Dr Garvey, surgeon, on 4 November 2020 and 10 September 2021 in his capacity as independent medical examiner. Dr Garvey provided reports dated 9 December 2020[12] and 13 September 2021[13]. At initial assessment Dr Garvey reported the following information had been provided to him by Mr Kandash relevant to the injury he sustained to his right shoulder on 2 October 2019:
“He went to see his GP and an MRI scan was performed and he had physiotherapy for 2 months and then surgery on 6 January 2020 but still had pain on abduction and external rotation. He was on light duties for 2 moths and then when the Corona virus pandemic struck, he was working from home for 6 months doing searches and emails et cetera and then in May 2020 he returned to on-site work on site on light duties. The work with a hammer was irritating and the vibrations affected his right shoulder and he is still in pain. An anthragram and MRI scan were performed which showed inflammation of the right shoulder joint, so he was treated with Mobic nonsteroidal anti-inflammatory medication but this caused stomach pain, constipation and PR bleeding.”
[12] ARD at p 71.
[13] ARD at p 78.
At the time of assessment, Dr Garvey noted Mr Kandash was working a security guard in a “Covid hotel” with most of his time spent “sitting down”. He described the treatment
Mr Kandash was receiving for his right shoulder injury:“Physiotherapy, Mobic … He has had 2 injections into his shoulder, the 1st had no effect on the 2nd was no help at all and the 3rd injection was also no help at all. Arthroscopic subacromial decompression has been proposed by his treating Surgeon (60-70% success rate). Second opinion has been sought from another shoulder Surgeon.”
Dr Rimmer
Mr Kandash was orthopaedically assessed by Dr Rimmer on 29 March 2021 and 17 September 2021 in his capacity as independent medical examiner. Dr Rimmer provided a number of reports, dated 13 April 2021[14], 6 August 2021[15] and 14 October 2021[16].
[14] ARD at p 50.
[15] ARD at p 57.
[16] ARD at p 59.
In his initial report Dr Rimmer noted a history of right shoulder injury occurring on 2 October 2019, with Mr Kandash coming to surgical treatment under the care of Dr Low and subsequent cortisone injection on 16 September 2020 and 23 November 2020 as his right shoulder remained problematic. Dr Rimmer noted:
“At some stage, he noticed the gradual onset of pain in his left shoulder.”
At the time of initial assessment, Mr Kandash had returned to work on suitable duties and described intermittent pain in his right shoulder and also his left shoulder. Regarding his left shoulder pain, Dr Rimmer noted “[H]e points to the anteriolateral aspect. It is most noticeable with above shoulder activity”. Dr Rimmer described his clinical examination of Mr Kandash’s left shoulder as a “normal examination” and in response to specific questioning said he did not believe Mr Kandash had “any injury and/or symptoms to his left shoulder”. Of particular interest is that while Dr Rimmer said “no investigations were present” he reported that from the file provided to him there were the following reports, which are not in evidence before the Commission, but which in all probability are an incorrect reference to the MRI scans dated 18 March 2021:
“MRI scan of the left shoulder dated 18 March 2020 states no abnormality.
MRI scan of the right shoulder dated 18 March 2020 states the previous labral repair is intact, otherwise no abnormality.”
In his later report following subsequent assessment by telehealth noted Mr Kandash was now working as a security guard at quarantine hotels, working “a normal 40 hour week with a 2kg weight restriction”. While Dr Rimmer recorded no complaint of left shoulder symptoms, he reported complaint of “deep seated pain” relevant to Mr Kandash’s right shoulder complaint. Dr Rimmer again referred to diagnostic imaging dated 18 March 2020 rather than 18 March 2021 and clinical examination of both shoulders was “via the use of telehealth”. Relevant to treatment Dr Rimmer noted Mr Kandash had ceased analgesic and anti-inflammatory medication, had ceased physiotherapy treatment, had ceased exercise physiology and was not undertaking any home based exercise program. In response to specific questioning, Dr Rimmer was strident in opinion Mr Kandash had not sustained a diagnosable injury to his left shoulder, which he said was confirmed by the normal clinical examination and no need for analgesic or anti-inflammatory medication.
Dr Berry
Mr Kandash was assessed by Dr Berry, general surgeon, on 10 June 2021 in his capacity as independent medical examiner. Dr Berry provided a reported dated 15 June 2021[17].
Mr Kandash presented with complaint that his right shoulder “is still sore all the time and is aggravated by movement”. While clinical examination of Mr Kandash’s left upper extremity was reported as “normal”, clinical examination of his right upper extremity was reported:“The patient has very limited internal and external rotation and abduction of his right arm.”
[17] ARD at p 19.
Dr Berry’s opinion relevantly included:
“This man has a history of sustaining injury to the right shoulder which did not respond to surgical intervention.”
Dr Bodel
Mr Kandash was also orthopaedically assessed by Dr Bodel on 10 June 2021 in his capacity as independent medical examiner. Dr Bodel provided a report dated the same day[18].
Dr Bodel also noted a history of right shoulder injury occurring on 2 October 2019, withMr Kandash coming to surgical treatment under the care of Dr Low, with Mr Kandash telling Dr Bodel the surgical treatment “has not helped” and Dr Bodel reporting “[I]f anything, he says the shoulder is worse”.[18] ARD at p 9.
Dr Bodel reported:
“In June 2020 there was an attempt to put him back to work but he was struggling and another MRI scan was done showing there was some persisting pathology in the shoulder and he then commenced a series of three cortisone injections but reports that unfortunately none of these have helped.
Over time, because he has been favouring the left side to protect the injured right side, he has developed mild symptoms in the left shoulder. At this stage, he has had an MRI scan but no treatment apart from physiotherapy.
He is due to be reviewed by Dr Low in another two weeks.”
Dr Bodel described current complaint by Mr Kandash to include pain and stiffness in both shoulders with the right being “much worse than the left”. He described current complaint to also include attempts to “push, pull or lift to use the right arm overhead can aggravate the pain”. He noted Mr Kandash’s medical management as “Panadol Osteo”.
Following clinical examination of both shoulders and review of the MRI scans and reports “confirming significant rotator cuff pathology in each shoulder but the right much worse than the left” in response to specific questioning, Dr Bodel provided opinion:
“This gentleman suffered a traction injury to the region of the right shoulder and a consequential injury to the left shoulder as a result of the injuries that occurred at work on 2 October 2019.”
Dr Bodel provided diagnosis in terms of “significant rotator cuff pathology in both shoulders, the right worse than the left”.
Submissions
Mr Carney and Mr Gaitanis made oral submissions, which I have considered. I am grateful to counsel for the assistance provided to me in this particular mater. A recording of counsels’ submissions is available to the parties.
Determination
Liability is not disputed for the injury Mr Kandash sustained to his right shoulder on 2 October 2019 in the course of his employment with Concept and neither is liability disputed for the consequential injury he sustained to his upper digestive system. However, liability is disputed for the consequential injury Mr Kandash alleges he sustained to his left shoulder.
Mr Kandash has the onus of proving he sustained consequential injury to his left shoulder as result of the injury he sustained to his right shoulder on 2 October 2019 in the course of his employment with Concept. This is a question of fact in this matter and consideration of
Mr Kandash’s evidence and all of the medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[19] McDougall J stated:“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[19] [2008] NSWCA 246.
With allegation by Mr Kandash that the injury he has sustained to his left shoulder is in the nature of a consequential injury, in Trustees of the Roman Catholic Church for the Dioceses of Parramatta v Brennan[20] Deputy President Snell relevantly discussed consequential injury, and said at [100]:
“There have been a number of Presidential decisions dealing with the nature of claims in respect of consequential conditions. The principles are described in a number of decisions, for example Moon v Conmah Pty Limited [2009] NSWWCCPD 134 and Kumar v Royal Comfort Bedding [2012]. It is unnecessary for a worker alleging such a condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within section 4 of the 1987 Act.”
[20] [2016] NSWWCCPD23.
In the circumstances of this matter it is important to recognise the injury Mr Kandash sustained to his right shoulder in the course of his employment with Concept may have set in train a series of events that, if unbroken, provides the relevant causative explanation of consequential injury to his left shoulder. In Kooragang Cement Pty Ltd v Bates[21], Kirby J said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate case by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
[21] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang).
It is evident Mr Kandash has been significantly troubled by his right shoulder since he fractured his right shoulder on 2 October 2019 in the course of his employment with Concept. With a failure in conservative treatment, Mr Kandash came to surgical treatment under the care of Dr Low on 6 January 2020, which Mr Kandash said did not help and which he told
Dr Bodel had “if anything” made his shoulder worse. With a failed return to work in June 2020 Mr Kandash underwent a series of cortisone injections, which Mr Kandash said did not help. With referral for what Dr Garvey described as second opinion from “another shoulder Surgeon”, Dr Cass said Mr Kandash’s right shoulder had never “settled down” despite his surgical treatment having been “very well performed” by Dr Low. Dr Cass cautioned
Mr Kandash “cannot be left the way he is” and expressed opinion repeat arthroscopy was indicated, which reportedly Dr Low also considered would benefit Mr Kandash. Although
Mr Gaitanis noted there was no report from Dr Low relevant to his further assessment of
Mr Kandash after recommendation of injection therapy and made submission there should be an inference pursuant to Jones v Dunkel[22], I do not consider it appropriate to draw such inference in circumstances where the clinical notes made available to Mr Kandash’s solicitors by Dr Low were printed as at 11 September 2020 and it is not apparent Mr Kandash ever had any subsequent reports from Dr Low made available to him. Noting Dr Low’s reports before the Commission appear to have been forwarded to iCare, one could perhaps assume a report relevant to Dr Low’s further assessment of Mr Kandash was also forwarded to iCare, and Concept could have included the report in the material on which it relied in defence ofMr Kandash’s claim.[22] [1959]HCA 8.
Dr Low reported as early as 9 March 2020 that Mr Kandash was complaining of activity related pain in his left shoulder, which he said had been present “even before surgery” and while Mr Kandash does not appear to have mentioned any left shoulder symptoms to his treating physiotherapists, it must be borne in mind Mr Hicks appears to have last reviewed Mr Kandash on 22 November 2019, Mr Burt appears to have last reviewed Mr Kandash on 29 July 2020 and it is Mr Kandash’s current recollection he started favouring his left side in an attempt to protect his injured right side and as consequence developed “mild symptoms” in his left shoulder in December 2020.
Dr Bodel has described the MRI relevant to Mr Kandash’s left shoulder to demonstrate “significant rotator cuff pathology” and following clinical examination, he has provided opinion Mr Kandash sustained a consequential injury to his left shoulder as a result of the injury he sustained to his right shoulder on 2 October 2019. While Mr Gaitanis was critical of Dr Bodel for failing to provide adequate reasoning for his support of a causal link between the injury sustained by Mr Kandash to his right shoulder on 2 October 2019 and the symptoms
Mr Kandash subsequently developed in his left shoulder, Dr Bodel is an experienced orthopaedic surgeon who has been providing independent medical examination opinion for many years and in my view he is allowed to use his general experience and knowledge as an expert[23].[23] Australian Security and Investment Commission v Rich [2005] NSWCA 152 at [170].
While I accept there is an absence of documentary evidence of complaint of left shoulder symptoms by Mr Kandash to his treating physiotherapists, general treating doctors, his treating specialists, and Dr Garvey and Dr Berry who both assessed Mr Kandash in their capacity as independent medical examiners, there was early complaint of left shoulder symptoms to Dr Low on 9 March 2020 and it is evident Mr Kandash has continued to be significantly troubled by his right shoulder despite conservative treatment, surgical treatment and injection therapy, with further surgical treatment mooted by both Dr Low and Dr Cass. When most recently independently medically assessed, which was by Dr Rimmer by telehealth on 17 September 2021, Mr Kandash complained to Dr Rimmer his right shoulder symptoms were “still the same” and included “deep seated pain”.
Following a review of the evidence as a whole and careful consideration of counsel’s submissions I accept Mr Kandash has discharged the onus of proof required of him and I am comfortably satisfied Mr Kandash has sustained consequential injury to his left shoulder resulting from the injury he sustained to his right shoulder on 2 October 2019 in the course of his employment with Concept.
I prefer the opinion provided by Dr Bodel to that provided by Dr Rimmer. In providing his opinion Mr Kandash had not sustained a diagnosable left shoulder injury, Dr Rimmer reviewed MRI scan reports of the right shoulder and left shoulder dated 18 March 2020.
Dr Rimmer says relevant to the right shoulder, the scan demonstrated the previous labral repair is intact and otherwise no abnormality. Dr Rimmer says relevant to the left shoulder, the scan demonstrated no abnormality. These MRI scan reports reviewed by Dr Rimmer are not before the Commission. Dr Bodel, on the other hand, provided opinion following review of MRI scans and reports of the right shoulder and left shoulder, which he says demonstrated “significant rotator cuff pathology in each shoulder but the right much worse than the left”. Although Dr Bodel made no reference to the date of the MRI scans and reports he reviewed, as the MRI scan reports dated 18 March 2021 that are before the Commission reportedly demonstrated both left shoulder and right shoulder pathology, it may be Dr Bodel had the opportunity to review these later scans and reporting, whereas Dr Rimmer did not. Moreover, Dr Rimmer’s opinion is grounded (a) in part on confirmation of a normal clinical examination, (presumably on 29 March 2021 as Dr Rimmer’s later assessment on 17 September 2021 was conducted by way of Telehealth and clinical examination was not possible) and Dr Bodel had the opportunity to clinically examine Mr Kandash more recently on 10 June 2021 and (b) in part because Mr Kandash “does not require any forms of oral analgesics or anti-inflammatories” in circumstances where it is evident Mr Kandash suffered significant gastric upset and damage as a result of the oral analgesics and anti-inflammatory medication he was prescribed as a result of the injury he sustained to his right shoulder in the course of his employment with Concept and Dr Bodel reports Mr Kandash takes Panadol Osteo, which is an oral analgesic.
Permanent impairment
Liability is not disputed for the injury Mr Kandash sustained to his right shoulder on 2 October 2019 in the course of his employment with Concept and neither is liability disputed for the consequential injury to the upper digestive system.
I have determined Mr Kandash sustained consequential injury to his left shoulder as a result of the injury he sustained to his right shoulder on 2 October 2019 in the course of his employment with Concept.
I consider it appropriate that the following documents be forwarded to the Medical Assessor together with this Certificate of Determination and Statement of Reasons:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents dated 24 December 2021 lodged on behalf of Mr Kandash and attached documents.
SUMMARY
It is not disputed Mr Kandash sustained injury to his right shoulder on 2 October 2019 in the course of his employment with Concept and neither is it disputed he has sustained consequential injury to the upper digestive system. I have determined Mr Kandash sustained consequential injury to his left shoulder as a result of the injury he sustained to his right shoulder in the course of his employment with Concept on 2 October 2019.
Mr Kandash’s claim against Concept for permanent impairment compensation payable under s 66 of the 1987 Act resulting from injury sustained to his right upper extremity (right shoulder) on 2 October 2019 in the course of his employment with Concept, consequential injury to the upper digestive system, consequential injury to his left upper extremity (left shoulder) and scarring is to be remitted to the President for referral to a Medical Assessor for the purpose of assessment of whole person impairment.
The following documents are to be forwarded to the Medical Assessor together with this Certificate of Determination and Statement of Reasons:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents dated 24 December 2021 lodged on behalf of Mr Kandash and attached documents.
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