Kasir (formerly Mahmood Alkasiri) v Anderson Recruitment and Training Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kasir (formerly Mahmood Alkasiri) v Anderson Recruitment and Training Pty Ltd [2024] NSWPIC 133
APPLICANT:	Michael Kasir (formerly Mahmood Alkasiri)
RESPONDENT:	Anderson Recruitment and Training Pty Ltd
MEMBER:	John Isaksen
DATE OF DECISION:	20 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for whole person impairment for injury to right little finger and consequential conditions affecting the left wrist, left shoulder, cervical spine, and upper and lower digestive tracts; respondent concedes injury to right little finger but disputes claims for all other body parts; reference to Moon v Conmah P/L; Held – worker has suffered a condition affecting his left wrist, left shoulder and upper digestive tract as a consequence of the injury to his right little finger; worker has not suffered a condition affecting his cervical spine or lower digestive tract as a consequence of the injury to his right little finger; referral for assessment by a Medical Assessor of the right little finger, left wrist, left shoulder and upper digestive tract.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has suffered a consequential condition affecting his left wrist and left shoulder as a result of the injury to his right little finger on 30 November 2017. 2. An award for the respondent for the claim made by the applicant that he has suffered a consequential condition affecting his cervical spine. 3. The applicant has suffered a consequential condition affecting his upper digestive tract as a result of the injury to his right little finger on 30 November 2017. 4. An award for the respondent for the claim made by the applicant that he has suffered a consequential condition affecting his lower digestive tract. The Commission orders: 1. The matter is remitted to the President for referral to a Medical Assessor as follows: Date of injury: 30 November 2017. Body parts: right upper extremity (little finger), left upper extremity (wrist, shoulder) as a consequential condition, and upper digestive tract as a consequential condition. Method of assessment: whole person impairment. 2. The following documents are to be forwarded to the Medical Assessor: (a) Application to Resolve a Dispute with attachments; (b) Reply with attachments, and (c) a copy of this decision.

STATEMENT OF REASONS

BACKGROUND

Michael Kasir (formerly Mahmood Alkasiri), the applicant in these proceedings, sustained an injury to his right little finger on 30 November 2017 in the course of his employment with the respondent, Anderson Recruitment and Training Pty Ltd.
Mr Kasir was working as a carpenter at a site at Bomaderry when a drill part was activated and struck the applicant’s right little finger. The respondent has accepted liability for this injury.
Mr Kasir claims that he has sustained consequential conditions affecting his left wrist, left shoulder, cervical spine and upper and lower gastrointestinal systems as a result of the injury to his right little finger.
Mr Kasir claims a lump sum payment for 23% whole person impairment, which is comprised of 7% whole person impairment of the left upper limb (wrist and shoulder) and 7% whole person impairment of the cervical spine (as assessed by Dr Bodel) and 5% whole person impairment of the upper digestive tract and 2% whole person impairment of the lower digestive tract (as assessed by Dr Frommer).
The respondent disputes all of the consequential conditions claimed by Mr Kasir to have been a result of the injury sustained on 30 November 2017.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant has suffered a consequential condition affecting his left wrist and/or left shoulder as a result of the injury to his right little finger;
(b)    whether the applicant has suffered a consequential condition affecting his cervical spine as a result of the injury to his right little finger, and
(c)    whether the applicant has suffered a consequential condition affecting his upper and/or lower digestive tract as a result of the injury to his right little finger.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conference and hearing on 13 March 2024. 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.
Mr Trainor appeared for Mr Kasir. Mr Barter appeared for the respondent.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) the Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no application to adduce oral evidence or to cross examine Mr Kasir.

Whether the applicant has suffered a consequential condition affecting his left wrist and/or left shoulder as a result of the injury to his right little finger

The applicant’s evidence

Mr Kasir has provided statements dated 10 February 2023, 17 March 2023 and
20 November 2023.
Mr Kasir states that he had a lot of swelling in the right little finger following the injury on
30 November 2017 and had a cortisone injection and extensive hand therapy. He states that he had his right hand in a splint for six months following the injury which reduced the ability to use that hand. He states he had to use his left arm more regularly and developed pain in the left wrist and left shoulder due to overusing the left arm.
Mr Kasir states that he was off work for one or two months following the injury. He worked in the office for about a month and was then placed in the yard to perform restricted duties within certain weights that he was to carry. He states that he was lifting and carrying moderately heavy items of equipment and mainly relied upon his left arm for this lifting and carrying. He also states that he was living alone between the time of the injury and mid-2018 and had to perform domestic activities and states: “I would favour the left arm because of activities I was normally performing with my right arm.”
Mr Kasir states that he began to be aware of pain in his left wrist and left shoulder in mid-2018. He states that he continued on restricted duties until late 2018 or early 2019 when his employment with the respondent was terminated.
Mr Kasir states that he did not have any significant medical conditions or injuries prior to the injury on 30 November 2017.

The medical evidence

The clinical notes from Chester Hill Medical Centre from 1 November 2015 to
6 February 2022 are in evidence. Most attendances by Mr Kasir were upon Dr Hanna of that practice.
The first reference to Mr Kasir having problems with his left wrist is on 4 June 2018 when
Dr Hanna records:
“Getting pain left wrist and muscle between rt thumb and index
Patient favouring LRFT hand as he get still pain rt little finger.”
The notes also include in “Examination”: “tender dorsal left mid wrist.”
An entry made by Dr Hanna on 14 June 2018 records that Mr Kasir cannot hold the car key due to pain in his left wrist and a referral is made for an ultrasound of the left wrist.
The first reference to Mr Kasir having problems with his left shoulder is on 22 June 2018 when Dr Hanna records:
“patient was doing lifting with exercise physiologist felt pain left shoulder after lifting above 25 kg feel his left arm is weak had no power also the pain left little finger is getting worse.”
The notes on 22 June 2018 also record tenderness over the left deltoid muscle and Mr Kasir being unable to lift his left arm, and a referral for an ultrasound of the left shoulder.
An entry made by Dr Hanna on 9 July 2018 records pain in the left shoulder after doing house work.
There continues to be references to left wrist pain and left shoulder in the notes from Chester Hill Medical Centre for the rest of 2018 and throughout 2019.
There is a short report from Dr Hanna to EML dated 28 March 2020 wherein Dr Hanna writes: “Patient left shoulder injury started after patient injured right little finger as patient favoured his left arm, this result in soft tissue injury.”
There is a report from Dr Kadir, orthopaedic surgeon, dated 18 June 2018, which relates to treatment of the right little finger. Dr Kadir records from Mr Kasir that the little finger becomes stiff, swollen and painful. Dr Kadir writes that the right index finger is not currently swollen, although I accept that this is an error, and the reference should be to the little finger.
Dr Kadir concludes that Mr Kasir has ongoing inflammation of the PIP joint but expected the inflammation to settle.
Dr Hanna referred Mr Kasir to Dr Kirsh, orthopaedic surgeon, and following an initial consultation on 18 October 2018, Dr Kirsh writes: “He originally dislocated his right little finger at work in November last year and then developed left wrist and shoulder pain secondary to favouring the right arm. He basically had an over use situation.”
Dr Kirsh records that Mr Kasir had full range of movement of the left wrist but was tender over the midline dorsum. He also records that Mr Kasir had a full range of movement of the left shoulder but there was a mildly positive impingement sign. Dr Kirsh records a negative impingement sign for the left shoulder in later consultations in November 2018, January 2019 and May 2019.
Dr Kirsh provides a comprehensive report at the request of Mr Kasir’s lawyers on
10 November 2022 and concludes his report:
“As Mr Alkasiri has injured his right hand it is not inconceivable that in favouring his right hand he has developed impingement and postural problems with his left arm. I have not seen him since May 2019 but would expect that this would settle with time.”
There is a report from Dr Manohar, interventional pain physician, dated 13 November 2018, wherein Dr Manohar records that he is told by Mr Kasir of pain in the left wrist and left shoulder due to overusing the left arm. Dr Manohar finds restriction of movement in the left shoulder. Dr Manohar identifies pain in parts of Mr Kasir’s left wrist, but also states that he would like to personally examine the left wrist and elbow.
Dr Kafataris, injury management consultant, has provided a report at the request of Employers Mutual Ltd (EML) dated 16 November 2018. Dr Kafataris found mild tenderness over the middle of the dorsum of the left wrist and mild positive impingement of the left shoulder. He also considers Mr Kasir to have an excessive pain focus and that his right hand grip strength to be relatively strong.
Dr Kafataris concludes that the chronic pain complained of by Mr Kasir in his left shoulder and left wrist is difficult to explain in relation to his original injury.
Mr Kasir attended Dr Dave, orthopaedic surgeon, in April 2020 upon referral by Dr Hanna.
Dr Dave records in a report dated 6 April 2020 that Mr Kasir claims to have had left shoulder over usage, pain and difficulties while protecting his right arm.
Dr Dave writes that Mr Kasir has features of cervico-brachial irritation and there seems to be an element of impingement. Dr Dave concludes: “The mechanism of injury is unclear but according to him has been due to the fact that he has been overusing his contralateral shoulder on the grounds of right little finger injury.”
Dr Bodel has provided a report at the request of Mr Kasir’s lawyers dated 4 August 2021, although the examination for that report occurred almost a year earlier on
16 September 2020.
Dr Bodel records that Mr Kasir began to favour the left arm because he could not use the right arm for a lengthy period of time, and he developed wrist and shoulder pain on the left side.
Dr Bodel found Mr Kasir to have a restricted range of movement of the left shoulder and impingement in left shoulder. He found restricted range of movement of the left wrist. He refers to an MRI scan of the left shoulder which shows evidence of bursitis and tendinitis in the region of the left shoulder.
Dr Bodel opines:
“He has developed consequential problems with his use, his left shoulder and his left wrist because he has favoured that side to protect the injured right side for a lengthy period of time. He has bursitis in the region of the left shoulder, a ganglion in the left wrist and mechanical neck ache associated with minor degenerative disc disease.”
Dr Bodel provides a supplementary report dated 30 March 2023 wherein he opines that
Mr Kasir’s left shoulder and left wrist:
“…have become symptomatic because of the overuse of the left arm and that came about because of the slow recovery from the right-hand injury. It is also noted that he is right side dominant and he is therefore asking his left arm to do tasks for which his not as dexterous as would be the case if it were his right hand.”
Dr Bodel also writes that the restrictions of the left wrist and left hand are due to the aggravation and deterioration of some underlying proven disease process, being the bursitis and tendinitis and the ganglion.
Dr Breit, orthopaedic surgeon, has provided five reports at the request of the respondent.
In his first report dated 15 October 2019, Dr Breit finds some tenderness over the impingement area of the left shoulder and some restriction of movement of the left shoulder. He also found tenderness at the dorsum of the left wrist.
Dr Breit concludes in regard to the complaints made by Mr Kasir to both his left wrist and left shoulder:
“It is claimed that all of this is due to overuse on the basis of severe pain and disability as a result of his relatively minor right-hand injury. That is not a reasonable contention given the level of function in the left hand.”
Dr Breit sees Mr Kasir again in August 2020 and finds that there is now markedly restricted movement of the left shoulder. Dr Breit opines:
“This gentleman’s presentation is of invalidism, loss of movement in the left shoulder compared to the previous assessment is not consistent with the pathology and his neurological findings are not consistent with organic pathology from triceps jerk testing.”
Dr Breit sees Mr Kasir for a third time in October 2021 and provides a report dated
17 December 2021. Dr Breit finds restricted movement of the left shoulder with some dropping of the left shoulder. He also records Mr Kasir putting on his sweatshirt at the end of the consultation without any difficulty and that this involved a greater range of arm and neck movement than when formally assessed. Dr Breit concludes:
“I have already indicated and reconfirm my opinion that this is not a consequential injury. While the force applied to the little finger was significant to result in the injury that applied elsewhere was insignificant and the degree of disability induced by such an injury is not so severe that would in any way lead to gross overuse of the left upper extremity leading to the various complaints.”
In his final report dated 12 April 2023, Dr Breit refers to the reports from Dr Bodel and states that Dr Bodel should be aware that people with little finger injuries do not have a great deal of trouble because they are able to use the rest of the hand and keep the little finger out of the way.
Dr Breit also refers to clinical notes from Westmead Hospital for attendances following a motor vehicle accident, a possible cerebral episode, and a laceration to the right hand while fishing, and states that Mr Kasir has been less than forthright, which throws further doubts on Mr Kasir’s claims and reinforces the opinions he has previously provided regarding the claims made by Mr Kasir.

Determination

The determination of whether a condition suffered by a worker is as a consequence of a work injury was considered by DP Roche in Moon vConmah Pty Limited [2009] NSWWCCPD 134 (Moon). In that matter the worker claimed whole person impairment from symptoms experienced in the left shoulder as a consequence of an accepted injury to the right shoulder. DP Roche said at [45-46]:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.
The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury (see Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648).”
Deputy President Roche then proceeded to state that the expression “results from” should be applied using the principles set out by Kirby P in Kooragang Cement v Bates (1994) 35 NSWLR 452 (Kooragang). In Kooragang Kirby P said at [462]:
“It has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
Kirby P then said at [463-4]:
“…What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury… Is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
The evidence in this dispute discloses an unbroken chain of events which does support a finding that Mr Kasir has suffered a consequential condition to both his left wrist and left shoulder as a result of the injury he sustained to his right hand.
Mr Kasir states that he had one or two months off work following the injury. He then returned to work in the office for about a month and then was transferred to the yard where he undertook manual work. Mr Kasir’s evidence is supported by details set out in a Functional Capacity Report from Natalie Lam dated 12 December 2018 wherein it is recorded that
Mr Kasir was off work for one to two months, then did administrative duties for another two months, and was then allocated to work in the yard. Ms Lam also records that Mr Kasir advised that he had overused his left arm.
There is also a handwritten statement from Alex Leecroft dated 30 October 2018, who states that Mr Kasir does not hesitate to pick up heavy or light things, although he also states that there is no indication of flinching or grimacing by Mr Kasir.
It is only a few further months after Mr Kasir returns to work in the yard that he seeks treatment from his general practitioner for pain he was experiencing in his left wrist and left shoulder.
Mr Kasir also states that he was living alone during those first six months of 2018 and performing his own domestic activities, which caused him to “favour the left arm”. That evidence, at least to the extent that it relates to the left shoulder, is supported by the note taken by Dr Hanna on 9 July 2018 that Mr Kasir experienced pain in the left shoulder after doing housework.
It is not only the contemporaneous records of problems with the left wrist and left shoulder during the latter part of 2018 which supports Mr Kasir’s claim in regard to these particular parts of his body. There are a number of doctors who examine Mr Kasir during this period who identify symptoms in both the left wrist and left shoulder.

Dr Hanna, Dr Kirsh, and Dr Kafataris all record tenderness over the dorsum of the left wrist. Dr Breit finds also finds some tenderness over the dorsum of the left wrist some 12 months later.
Dr Hanna records tenderness and restriction of movement in the left shoulder in notes during the latter part of 2018. Dr Kirsh and Dr Kafataris identify positive impingement signs in the left shoulder when they examine Mr Kasir in late 2018, although Dr Kirsh makes no further findings at his following consultations with Mr Kasir.
Dr Breit found some tenderness over the impingement area of the left shoulder and some restriction of movement of the left shoulder during his initial examination of Mr Kasir in October 2019.
The clinical notes from Chester Hill Medical Centre only go back two years before the subject accident, but there is nothing to indicate in those notes or any other medical documents which are produced in this dispute that Mr Kasir had any prior problems with his left wrist and left shoulder. That adds to my acceptance of the claim made by Mr Kasir that the symptoms he has experienced in his left wrist and left shoulder are a consequence of overuse of the left upper limb due to the pain and difficulties he has had with his right little finger.
I agree with a submission made by Mr Barter that the opinion provided by Dr Kirsh “that it is not inconceivable that in favouring his right hand he has developed impingement and postural problems with his left arm” does meet the relevant standard of proof required by
Mr Kasir to succeed with this particular claim. However, as DP Roche said in State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71 (El-Achi) at [72]:
“In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”
In my view those observations made by DP Roche extend to issues involving consequential conditions. The opinion from the treating specialist does add weight to that evidence which I have already referred to which supports a finding that Mr Kasir has suffered a consequential condition affecting both his left wrist and left shoulder.
I also accept that additional weight can be given to this particular claim by the opinion provided by Dr Hanna to EML that a soft tissue injury to Mr Kasir’s left shoulder started after Mr Kasir “favoured his left arm” due to the injury to his right little finger. Although the opinion of a general practitioner on causation is often given little or no weight, Dr Hanna has had the benefit of reviewing Mr Kasir on a very regular basis, especially during 2018 and 2019, and has therefore been in a good position to observe the onset of Mr Kasir’s symptoms and complaints following the injury on 30 November 2017 and provide an opinion on this issue.
Having regard to the complaints made to doctors of symptoms in the left wrist and left shoulder some months after Mr Kasir returned to manual work for the respondent and while undertaking his own domestic activities, the findings of tenderness in the left wrist and restriction of movement of the left shoulder by various doctors, the opinion of Dr Hanna, and the qualified opinion offered by Dr Kirsh, I prefer the opinion of Dr Bodel (who has also considered this evidence) that Mr Kasir has consequential conditions affecting the left wrist and left shoulder as a result using the left arm to protect his injured right hand.
In my view, that evidence which I have referred to, when that is added to the opinion from
Dr Bodel, satisfies the test set out in Moon that Mr Kasir has “symptoms and restrictions” in both the left wrist and left shoulder which have resulted from the injury to the right little finger.
I prefer the opinion of Dr Bodel over the opinion of Dr Breit. I have already referred to findings of tenderness over the dorsum of the left wrist and restriction of movement of the left shoulder made by Dr Breit during his initial examination of Mr Kasir in October 2019. However, Dr Breit provides no explanation for these findings. He opines that the left hand and left shoulder problems, if they are symptomatic at all, are “purely constitutional” but he does not reconcile that opinion with his own findings on examination in his first report.
Similarly, there is a failure by Dr Breit to reconcile those initial findings on examination with opinions in his later reports that Mr Kasir acts as an invalid and the injury to the right little finger is so minor that it would not lead to gross overuse of the left arm. The severity of a particular injury may be a factor in the onset of a condition to another part of person’s anatomy, but I agree with the submission made by Mr Trainor that the question to be resolved is whether an injury is capable of causing symptoms and restrictions to other parts of the body.
I have already referred to the considerable amount of medical evidence, especially in late 2018, which supports a finding that Mr Kasir has experienced “symptoms and restrictions” (Moon) in his left wrist and left shoulder as a result of the injury to his right little finger.
Having undertaken a review of the evidence, I am satisfied that Mr Kasir has consequential conditions affecting his left wrist and left shoulder as a result of the injury he sustained to his right little finger on 30 November 2017.

Whether the applicant has suffered a consequential condition affecting his cervical spine as a result of the injury to his right little finger

The applicant’s evidence

Mr Kasir makes no reference to any problems with his neck in his first statement dated
10 February 2023, although he does state that he has numbness and tingling sensations in his left hand.
Mr Kasir states in his second statement:
“I can confirm I did sustain an injury to neck around the same time that I sustained all of my other injuries.
I can also confirm that the injuries to my shoulders have had an adverse affect on my neck because of the pain that I was experiencing in this part of my body.”

The medical evidence

The first reference in the clinical notes from Chester Hill Medical Centre to Mr Kasir having problems with his neck is on 10 April 2019 when Dr Hanna records Mr Kasir having pain with extreme movement of the neck.
Dr Kirsh writes five days later following one of his reviews that Mr Kasir complains of his neck clicking and his chest wall being numb. He considers that Mr Kasir’s problem is coming from his cervical spine and makes a referral for an MRI scan.
Dr Kirsh writes in his report dated 6 May 2019 that the MRI scan shows some narrowing of the foramen, but no obvious nerve root impingement. Dr Kirsh then writes: “I do not think the neck is the cause of his problem, and the shoulder is more than likely the source.”
Dr Kirsh writes in his report to Mr Kasir’s lawyers dated 10 November 2022 that he provided the referral for the MRI scan “just to be sure that we weren’t missing anything”. He also writes:
“He had had a wrenching injury to his arm and it is not inconceivable that this could have caused a cervical problem, as could favouring the arm as he described initially.”
Dr Kirsh writes in his report dated 10 November 2022 that in regard to the neck “it was more likely that the shoulder was the source of his pain and posture was just giving him the symptoms that he described before.”
I have already referred to the diagnosis made by Dr Dave in April 2020 that Mr Kasir has cervical brachial irritation, but that Dr Dave stated that the mechanism of that injury was unclear.
Dr Bodel in his report dated 4 August 2021 does not list Mr Kasir’s neck as being injured, although he does record that Mr Kasir has pain in the neck. Dr Bodel opines that Mr Kasir has mechanical neck ache associated with minor degenerative disc disease and makes an assessment of 7% whole person impairment of the cervical spine.
The supplementary report from Dr Bodel dated 30 March 2023 addresses the question of whether Mr Kasir has consequential conditions affecting his left wrist and left shoulder as a result of the injury to his right little finger, and the only reference to the neck is in the final paragraph of that report when Dr Bodel writes:
“I am satisfied therefore that there is a causal link between the right hand injury and the aggravation, acceleration, exacerbation and deterioration to the left wrist, the shoulders and the neck in this circumstance as described above.”
There is no reference to any problems with Mr Kasir’s neck in the first report from Dr Breit dated 15 October 2019. Dr Breit writes in a later report dated 23 October 2020 that Mr Kasir has never had a cervical spine condition related to his injury. Dr Breit opines:
“It beggars belief that a twisting injury to the hand from a power drill only involving the little finger was now claimed to somehow have resulted in a cervical spine injury.”
Dr Breit writes in his final report dated 12 April 2023:
“A twisting injury to the little finger from a drill does not produce a frank injury to the cervical spine. The claim that it is also a consequential injury because of shoulder impairment doesn’t hold water because the left shoulder is not a consequential injury in the first place. Secondly, there is a history of a significant motor vehicle accident a year prior to this event and we have no information on the state of his neck subsequently.”

Determination

Mr Kasir does not assist with this part of his claim by the evidence he provides in his statement dated 17 March 2023. This is the only one of his three statements where he addresses the claim of a consequential condition affecting the neck.
Mr Kasir does not identify any specific activities or circumstances which coincide with the onset or the increase of pain or any other symptoms in his neck. He does not provide any details as to how the injuries to his shoulders have had “an adverse affect” upon his neck.
The reports from Dr Kirsh do not assist in regard to this particular claim made by Mr Kasir. While Dr Kirsh is prepared to opine that it is not inconceivable that favouring the right hand may have led to impingement and postural problems with the left arm, he does not extend that cautious opinion to any problems that Mr Kasir has had with his neck.
Dr Kirsh does state in his report dated 10 November 2022 that it is not inconceivable that a wrenching injury to the right arm could have caused a cervical problem, but he then concludes after viewing the MRI scan that the neck was not the cause of Mr Kasir’s problems. Dr Kirsh confirms in his report dated 10 November 2022 that the MRI scan of the neck was a prudent measure taken by a treating specialist to ensure that there were no significant problems emanating from the cervical spine.
Dr Kirsh also suggests in his report dated 10 November 2022 that Mr Kasir’s neck problems may be due to his posture, but he does not make a connection between Mr Kasir’s posture and the injury which Mr Kasir sustained to his right little finger.
Therefore, while Dr Kirsh suggests a couple of possibilities for the neck pain complained of by Mr Kasir, the evidence and opinion from Dr Kirsh is simply not strong or compelling enough for me to be satisfied that Mr Kasir has a consequential condition affecting his neck as a result of the injury to his right little finger.
I have come to the same conclusion in regard to the evidence from Dr Dave. Dr Dave opines that Mr Kasir has cervical brachial irritation, but he does not offer his own opinion as to whether that condition is a result of the injury to Mr Kasir’s right little finger and he considers the mechanism of injury to be “unclear”. I agree with the submission made by Mr Barter that Dr Dave merely recites Mr Kasir’s belief that the symptoms in the neck are due to overuse of the contralateral shoulder, and Dr Dave does not offer his own opinion on causation.
There is no explanation provided in the substantive report from Dr Bodel dated
4 August 2021 as to how his diagnosis of mechanical neck ache associated with minor degenerative disc disease and his assessment of 7% whole person impairment of the cervical spine is related or linked to the injury Mr Kasir has sustained to his right little finger.
Nor is this particular claim made by Mr Kasir advanced by the second report from Dr Bodel. Dr Bodel states that he is satisfied that there is a causal link between the right hand injury and the aggravation, acceleration, exacerbation and deterioration of the neck, but again makes no attempt to explain that conclusion.
Mr Trainor is critical of the opinion provided by Dr Breit on this issue. However, it is incumbent upon Mr Kasir to prove this particular claim. As McColl JA (Mason P and Beazley JA agreeing) said in Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 (Hevi Lift) at [84]: “It has long been the case that a court cannot be expected to, and should not, act upon an expert opinion the basis for which is not explained by the witness expressing it.” There is no explanation from Dr Bodel as to how Mr Kasir’s neck has been aggravated as a result of the injury to the right little finger.
There will be an award for the respondent for the claim of a consequential condition affecting the cervical spine as a result of the injury to the right little finger.

Whether applicant has suffered a consequential condition affecting his upper and/or lower digestive tracts as a result of the injury to his right little finger

The applicant’s evidence

Mr Kasir states that he took medication following his injury and continued to take medication during 2018, 2019 and 2020. He states that this medication included Maxigesic, Mobic, Panadeine Forte, Somac and Tramadol.
Mr Kasir states that he became aware of an upset stomach and being in pain over a period of time and he underwent a gastroscopy.
Mr Kasir states that he recalls that he was 70kg immediately before the injury on
30 November 2017 and that he was a fit man. He states that he has been much less active since his injury and that his weight has increased. He states in his last statement dated
20 November 2023 that he now weighs 105kg.

The medical evidence

An entry in the notes from Chester Hill Medical Centre on 9 May 2016 records Mr Kasir’s weight as being 85kg.
An entry in the notes from Chester Hill Medical Centre on 14 January 2017 records
Mr Kasir’s weight as being 79kg.
An entry in the notes from Chester Hill Medical Centre on 6 October 2017 records Mr Kasir having been in hospital with gastroenteritis with vomiting and diarrhoea.
An entry in the notes from Chester Hill Medical Centre on 13 January 2018 (some six weeks after the subject injury) records Mr Kasir’s weight as being 89.3kg.
An entry in the notes from Chester Hill Medical Centre on 6 February 2019 records
Mr Kasir’s weight as being 93.6kg.
An entry in the notes from Chester Hill Medical Centre on 6 January 2020 records Mr Kasir’s weight as being 101.5kg.
The clinical notes from Chester Hill Medical Centre record the prescribing of analgesic, anti-inflammatory and anti-depressant medication from soon after the injury on
30 November 2017.
An entry in the notes from Chester Hill Medical Centre on 13 August 2018 is for gastritis and there is a record for a prescription for Zantac. Further prescriptions for Zantac are recorded on 24 August 2018 and 19 September 2018.
There is a report from Dr Sartoretto, gastroenterologist, dated 28 February 2020 which records that Mr Kasir is taking a number of analgesic agents including Panadeine Forte, Tramadol and Mobic for the management of his musculoskeletal injuries in the workplace. He records that Mr Kasir complains of having a burning chest pain for the past six months and that Mr Kasir identifies Panadeine Forte as a trigger for this pain.
There is a gastroscopy report from Dr Rattan, gastroenterologist, dated 12 August 2020 which includes a diagnosis of mild focal non-erosive gastritis involving the antrum and mild non-erosive duodenitis affecting the duodenal bulb.
Dr Rattan provides reports dated 22 September 2020 and 3 November 2020 wherein he diagnoses Mr Kasir as having mild chronic reflux oesophagitis.
Dr Rattan provides a further report dated 23 February 2021 wherein he records that Mr Kasir has recently commenced nonsteroidal anti-inflammatory medication for the management of arthritis and this has precipitated epigastric discomfort and gastro-oesophageal reflux symptomology. Dr Rattan also records that Mr Kasir’s current weight is 103kg.
Dr Frommer, gastroenterologist and hepatologist, has provided a report at the request of
Mr Kasir’s lawyers dated 11 May 2023.
Dr Frommer records that Mr Kasir’s weight has increased from 82 or 83kg to now being about 100kg. Dr Frommer records Mr Kasir’s weight at the time of examination to be
102.5 kg with his shoes on.
Dr Frommer lists Mr Kasir’s past and present medication, being a combination of analgesic, anti-inflammatory and anti-depressant medication.
Dr Frommer records that Mr Kasir has had watery diarrhoea with urgency over the last two years.
Dr Frommer diagnoses Mr Kasir as having gastro-oesophageal reflux disease (GORD). He opines that the main factor contributing to Mr Kasir’s GORD is his obesity, but that other factors which increase the risk of GORD are Voltaren and Endep.
Dr Frommer writes that the cause of Mr Kasir’s diarrhoea is uncertain and is unlikely to be due to the medication which he is taking. He writes that it may be due to predominant irritable bowel syndrome secondary to injury induced stress.
Dr Frommer assesses 5% whole person impairment due to upper digestive tract disease (AMA 5, Table 6-4) and 2% whole person impairment due to colonic and rectal disorders (AMA 5, Table 6-5).
Dr Truskett, surgeon, has provided a report at the request of the respondent dated
14 July 2023.
Dr Truskett records that Mr Kasir had an onset of gastrointestinal tract symptoms some six months after his injury. He records that Mr Kasir has been taking Endone and Oxycodone for the past year and Voltaren since 2017.
Dr Truskett records that Mr Kasir weighed 90kg at the time of his injury, and that he had reached 115kg since then, although his weight on the day of the examination was 100kg.
Dr Truskett records that Mr Kasir will open his bowels every few days and his motion is hard.
Dr Truskett considers that there is good evidence that weight gain is predominantly due to caloric intake and has very little relationship to exercise ability. Furthermore, even if mobility was considered a factor, Mr Kasir admits that his weight gain relates more to back pain which occurred following another injury on 4 February 2022. Dr Truskett concludes that he can find no believable relationship between Mr Kasir’s weight gain and his right little finger injury.
Dr Truskett writes that he can find no relationship between Mr Kasir’s gastrointestinal symptoms and the management of his right little finger injury. This is based upon Mr Kasir’s own admission that the predominant cause for the intake of medication at the time he saw
Dr Truskett was for his back pain, and there is an inconsistency between Mr Kasir stating that his gastrointestinal symptoms began about six months after his injury and the record made by Dr Sartoretto that Mr Kasir had only experienced symptoms some six months before Mr Kasir attended Dr Sartoretto in February 2020.
Dr Truskett opines that Mr Kasir does have symptoms that would be in keeping with gastro-oesophageal reflux, but this is a constitutional disorder and is unrelated to any medication.
Dr Truskett states that to qualify for lower digestive tract disease according to the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed (the Guidelines), there must be symptoms and signs or anatomic loss or derangement and there are no symptoms, signs or changes which have been demonstrated. Therefore, an assessment of the lower digestive tract is not warranted.

Determination

Both Dr Sartoretto and Dr Rattan record that Mr Kasir’s ingestion of medication has coincided with chest and stomach pain. However, neither doctor specifically opine that the ingestion of medication is the cause of these symptoms.
In the absence of any opinion by Mr Kasir’s treating specialist on the cause of the chest and stomach pain he has experienced, there are the opinions of the two independent medical experts, Dr Frommer and Dr Truskett.
Dr Frommer opines that the ingestion of Voltaren (an anti-inflammatory) and Endep (an analgesic) is a factor in the increase of the risk of GORD. However, he identifies the main factor contributing to Mr Kasir’s GORD to be is his obesity.
Mr Kasir states that he was 70kg immediately before the injury on 30 November 2017, but the records from Chester Hill Medical Centre indicate that this is highly unlikely. The history taken by Dr Frommer that Mr Kasir’s weight was 82 or 83kg before his right hand injury is also doubtful when compared to the notes from Chester Hill Medical Centre. The history taken by Dr Truskett of Mr Kasir weighing 90kg at the time of the injury appears to be more accurate.
Nonetheless, the records from Chester Hill Medical Centre reveal Mr Kasir’s weight increased some 10 to 12kg over a two year period from the time of the work injury to the entry made on 9 January 2020.
I prefer the opinion of Dr Frommer over that of Dr Truskett in regard to the claim of a consequential affecting the upper digestive tract. The opinion from Dr Frommer that the main factor contributing to Mr Kasir’s GORD is his obesity is consistent with the contemporaneous records of weight gain following the injury.
Dr Truskett states that Mr Kasir admitted that his weight gain relates more to his back pain, but I could not identify such an admission in the details recorded by Dr Truskett, and such an assumption is not consistent with the clinical notes which I have referred to.
Dr Truskett opines that Mr Kasir’s gastro-oesophageal reflux is a constitutional disorder, but he does not explain why these symptoms have only arisen (with the exception of an isolated incident of gastroenteritis in October 2017) since the injury on 30 November 2017 or why weight gain cannot at least aggravate such a condition.
Dr Truskett also assumes that most of the medication taken by Mr Kasir has been since his back injury in February 2022. However, the records from Chester Hill Medical Centre reveal that Mr Kasir was regularly prescribed Maxigesic, Panadeine Forte or Tramadol between 2018 and 2020.
Furthermore, the history given to Dr Truskett by Mr Kasir that he commenced to have gastrointestinal symptoms about six months after his injury is confirmed by notes taken by
Dr Hanna on 13 August 2018 of Mr Kasir having gastritis and being prescribed Zantac. Additional prescriptions of Zantac are recorded on 24 August 2018 and 19 September 2018.
My preference is therefore for the opinion of Dr Frommer on the issue of whether Mr Kasir has a condition affecting his upper digestive tract as a result of the injury he sustained on
30 November 2017 because the opinion he provides is consistent with contemporaneous medical material which relates to Mr Kasir’s weight gain and medication use.
The referral to the Medical Assessor will include an assessment of permanent impairment of the upper digestive tract as a consequential condition.
However, that preference for the opinion of Dr Frommer does not extend to his opinion as to whether Mr Kasir suffers a condition affecting his lower digestive tract as a result of his work injury.
Firstly, Mr Kasir does not make any complaints about his bowel motions in the evidence which he has provided in this dispute.
Secondly, there is a significant discrepancy between the history taken by Dr Frommer that
Mr Kasir has had watery diarrhoea with urgency over the last two years and the history taken by Dr Truskett that Mr Kasir will open his bowels every few days and his motion is hard. Although I have been critical of details taken by Dr Truskett in regard to the claim involving the upper digestive tract, there are no contemporaneous medical records which might assist in the resolution of the discrepancy between the two experts on this particular issue.
Thirdly, paragraph 16.9 of the Guidelines states that assessment of permanent impairment for colorectal disease requires the report of a treating doctor or family doctor, which includes a proper examination and/or a full endoscopy report. No such evidence has been provided.
Fourthly, AMA 5 and the Guidelines require there to be signs and symptoms of colonic or rectal disease for there to be an assessment of permanent impairment of the lower digestive tract, and no signs such as an endoscopy report or rectal examination report are in evidence.
Dr Frommer also suggests that Mr Kasir’s problems with diarrhoea may involve irritable bowel syndrome secondary induced stress. Mr Kasir has sought treatment for psychological problems he has experienced since the work injury. However, Dr Frommer only raises the possibility of irritable bowel syndrome with no other medical evidence to support Mr Kasir suffering such a condition.
There will be an award for the respondent on the claim made by Mr Kasir that he has a consequential condition affecting his lower digestive tract.

[2024] NSWPIC 133

20 March 2024