Keram v Canterbury Bankstown Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Keram v Canterbury Bankstown Council [2024] NSWPIC 535
APPLICANT:	Chris Keram
RESPONDENT:	Canterbury Bankstown Council
MEMBER:	John Wynyard
DATE OF DECISION:	27 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; claim for lump sum compensation in respect of injury to the cervical spine and left shoulder; whether applicant's claim had been admitted by the respondent's expert witness; whether clinical notes and opinion from treating neurosurgeon affected claimant’s onus; whether respondent should be given an adjournment to consider additional evidence; Held – 8 – 9 months prior to the hearing section 78 notice advised that although the respondent expert witness supported applicant's claim the insurer did not accept that opinion; no further evidence was obtained thereafter; adjournment request refused; cervical spine injury admitted after a short adjournment; denial for injury to the left shoulder maintained; respondent counsel reference to various segments of the evidence in order to nullify its expert’s view unsuccessful; failure by the insurer to properly prepare its case commented on; Hill v The A 2 Milk company (Australia) Pty Ltd referred to; Mosawi v Baron Forge (NSW) Pty Ltd considered and applied.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant injured his left shoulder due to the nature and conditions of his employment with the respondent. The Commission orders: 1. I remit this matter to the President for referral to a Medical Assessor on the following bases: Date of injury: 17 September 2023 (deemed). Matters for assessment: cervical spine and left upper extremity (shoulder). Evidence: Application to Resolve a Dispute and attached documents; Application to Admit Late Documents (ALD) dated 2 July 2024, ALD dated 13 August 2024, applicant’s supplementary statement admitted during the hearing dated 16 August 2024 and Reply and attached documents. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Chris Keram, brings an action for lump sum compensation against Canterbury Bankstown Council, the respondent, with regard to injuries to the cervical spine and the left upper extremity (shoulder) caused on a deemed date of injury of 12 July 2023.
Dispute notices were issued and the Application to Resolve a Dispute was duly issued.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the applicant has satisfied his onus of proof that he injured his left shoulder due to the nature and conditions of his work.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was heard at the Commission premises on 19 August 2024. Mr Jarryd Malouf of counsel appeared for the applicant, instructed by Mr Ahmad Dawod. The respondent was represented by Mr David Saul of counsel instructed by Ms Amanda Malouf. Ms Karli Stanoudis appeared for the insurer and Ms Anastasia Azzi for the respondent Council.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Application to Admit Late Documents (ALD) dated 2 July 2024;
(c)    ALD dated 13 August 2024;
(d)    Applicant’s supplementary statement admitted over objection during the hearing dated 16 August 2024, and
(e)    Reply and attached documents

Oral evidence

No application was made regarding oral evidence.

FINDINGS AND REASONS

Preliminary

Mr Malouf began his submissions by seeking to admit the supplementary statement dated
16 August 2024, to which Mr Saul objected in respect of paragraph [11]. Mr Saul submitted that the statement showed that Mr Keram had been now working for over a year for the Sutherland Council, and that it changed the nature of the claim. This objection was overruled, as matters of admissibility were regarded as matters of weight in the Commission, in any event the dispute was detailed in the s 78 Notice as concerning Mr Keram’s change in employment, and further, it had been considered by Dr Breit.
Mr Saul then applied for an adjournment. He submitted that the report of the respondent’s medico-legal expert, Dr Robert Breit, dated 24 October 2023, had been based on the history given to him by the applicant. He submitted that the respondent did not have a detailed description of Mr Keram’s subsequent work with Sutherland Council. Particulars had been sought in July 2023, and the response was not received until June 2024, but did not describe the duties with Sutherland Council. Mr Saul noted that the clinical records within the ARD were only dated up to 2022, before Mr Keram commenced with the Sutherland Council. The adjournment was for the purposes of forwarding to Dr Breit the records that had been obtained by direction following the teleconference in this matter, which Mr Saul said were relevant to the issue of injury.
The application was refused, as the issue of injury had been raised on the same grounds in the s 78 Notice of 27 November 2023, no further enquiry had been made of the applicant following his supply of particulars on 6 June 2024, and Dr Breit had already considered this issue. No factual report had been obtained, and the application had not been made in accordance with the PIC Rules.
Mr Malouf sought to amend the pleaded date of injury to that relied on by the respondent in its s 78 notice. This was opposed by Mr Saul but as no prejudice had been caused by the proposed amendment, it was allowed. The date pleaded in the ARD form of 1 June 2020 was deleted, and the date of Mr Keram’s claim, 12 July 2023 was substituted. Both counsel said that they were aware of the recent Court of Appeal authority of Haddad v The GEO Group Australia Pty Ltd,[1] but their agreement that the date of claim was the correct deemed date of injury would imply otherwise. Nothing turns on the date of injury in these circumstances, however.
[1] [2024] NSWCA 135.
A short adjournment was requested by Mr Saul, following which he advised that the respondent withdrew the dispute regarding the cervical spine, but maintained its denial regarding the claim for injury to the left shoulder.

The evidence

The evidence concerning the dispute was in short compass.
Mr Keram said in his statement of 6 June 2024 that he was born in 1963 and obtained employment with the respondent Council on 4 January 2000. His employment was terminated on 16 February 2022, when he had been complaining of symptoms for five years – particularly in the use of a telescopic chainsaw weighing 12kg.[2] The histories given in both his statements and the reports of Dr James Bodel and Dr Robert Breit were consistent. In summary, Mr Keram was employed as an arborist, which occupation required him to perform repetitive and strenuous physical tasks.
[2] Mr Keram’s neurosurgeon, A/Prof Ghahreman confirmed this history in his report of 18 December 2023, ARD page 33.
Mr Keram claimed that the nature of these duties had resulted in injury to his cervical spine (which as noted, has now been accepted) and to his left shoulder. Mr Keram underwent treatment from his general practitioner (GP), who recommended light duties for him. However “this was constantly overlooked by my employer.”[3] Mr Keram stated that his employment was terminated with the respondent on 16 February 2022, and “I commenced employment with Sutherland Council undertaking light duties to the best of my ability”.[4]
Mr Keram said in his supplementary statement that he was still employed by the Sutherland Council, where he worked nine days per fortnight and where the work was “less burdensome.”[5]
[3] ARD page 2 [13].
[4] ARD page 3 [24].
[5] Supplementary statement 16 August 2024 [9].

MEDICAL

Dr Bodel

Dr James Bodel, orthopaedic surgeon, was retained as Mr Keram’s medico-legal specialist. In his report of 29 June 2023, Dr Bodel took a history that Mr Keram was put off work in 2022. Dr Bodel said:[6]
[6] ARD page 17.
“Later he did some work at Sutherland Shire Council through an agency and he did pass a preemployment medical to get that position in August 2022.”
Dr Bodel took a history that there was no specific event that caused Mr Keram’s injury, but the nature of his work doing arboreal work brought on head, neck and left shoulder girdle pain together with left sided facial pain and pain that radiated down the left arm to hand. In particular, Mr Keram had trouble using an extendable chainsaw above shoulder height which weighed about 12kg, and which he had been using for six or seven years. This was consistent with the history given in Mr Keram’s statement of 6 June 2024, and by A/Prof Ghahreman, as noted.
Dr Bodel noted that a CT scan of the cervical spine on 19 December 2022 showed pathology at C5/6 and C6/7 , but that the Council had denied liability on 7 March 2023.
Dr Bodel diagnosed the above disc pathology together with “the aggravation, acceleration, exacerbation and deterioration of the disease process being the degenerative disc disease in that region and rotator cuff pathology in the left shoulder”. [7]
[7] ARD page 20.
Dr Bodel advised that the work with the respondent was the main contributing factor to the injury to his cervical spine, the left upper extremity and the left shoulder. His opinion was that the nature and conditions of Mr Keram’s work had caused the injuries. Dr Bodel was asked about Mr Keram’s capacity to work. He said:[8]
[8] ARD page 21.
“He indicated to me however that about four months after being put off work at the Canterbury Bankstown Council he did find some work at Sutherland Shire Council through an agency and he did pass a pre-employment medical to get that work.
He therefore has some capacity for work but he needs to take care with overhead use of the arms or heavy lifting to minimise his symptoms.”

Dr Breit

On 24 October 2023 Dr Robert Breit, orthopaedic surgeon, reported to the Council’s solicitors. Dr Breit took a consistent history to that of Dr Bodel and Mr Keram’s statement. As to any past medical problem, Dr Breit asked about a 2017 report about a left shoulder problem, which, after not being able to recall initially, Mr Keram remembered that he had some left shoulder pain when he was lifting traffic cones onto the back of the Council truck, but Dr Breit was told that it eventually settled. Dr Breit noted:[9]
[9] ARD page 24.
“This gentleman did some agency work for about 6 months before gaining employment as an arborist at Sutherland Hospital. I am told the work is similar but different and varied.
You indicated the Certificate of Capacity was issued on 28 February 2023. This gentleman said for a couple of years he had pain in the neck going into the shoulder. He also states that he complained about it to Canterbury Council and at team meetings. He does not consider that his employment at Sutherland Hospital has had any effect on his symptomatology but he has started to get worried when tingling on the left side of his face and chest occurred so that he saw his GP in Roselands.
Over the last few years his only treatment has been medication and recently he self-funded a neurosurgical review (name not remembered) and has been referred for a cervical MRI that s not been undertaken. In the interim his GP has prescribed low dose Lyrica and some Voltaren.”
Dr Breit noted that Mr Keram had present complaints. Dr Breit said:[10]
[10] ARD page 25.
“There is pain in the neck radiating up into the occiput, he complains of clicking, cracking and soreness. The pain radiates along trapezius into the left shoulder but he denies any arm pain however there are pins and needles in the fingers that occur randomly so that he cannot define which fingers are involved. He can do things overhead and get the hand behind the back.”
Dr Breit was asked to enquire of Mr Keram as to the nature of the role with Sutherland Council, including the request to “[p]lease ask the worker whether any of the duties he carries out in his role with Sutherland Shire Council are heavy/labour-intensive and / or require the repetitive use of the upper limbs or neck, placing pressure on his shoulders and/or neck”.
Dr Breit said in response:[11]
[11] Reply page 16.
“He continues to work as an arborist and his job varies depending on the
situation as does that of any arborist. He doesn’t climb trees but there are
platform devices used and I gather part of his work is also dealing with fallen branches etc following storms.”
Dr Breit gave the following diagnosis:
“This man has cervical spondylosis and evidence of radiculopathy given the reflex changes. He also has evidence of left rotator cuff irritation the basis of which cannot be determined at this time.”
When asked to advise whether he disagreed with the diagnoses of “other doctors/specialists who have examined the worker…..” Dr Breit said:
“You have provided an extraordinary amount of rehabilitation reports that add nothing to the situation and they are all from 2017. The only reasonable assessment is that by Dr Bodel and I am essentially in agreement.”
Dr Breit said of the left shoulder condition:
“He has clinical evidence of rotator cuff irritation but there is not so much as an x-ray to review so that I cannot indicate anything more.”
Dr Breit was asked:[12]
[12] Reply page 17.
“Please describe the incident or incidents, work-related or otherwise, that you believe to be the cause of the worker’s injury to his neck and left shoulder (if applicable).” (Emphasis as written).
Dr Breit replied:
“This is not a claim for a specific injury but rather the nature and conditions of his employment. In my opinion there is a relationship having spent long hours working overhead with the pole saw and working overhead in a posture that produces significant stress on both areas.”
In answer to an exhaustive exegesis regarding s 4(b) of the 1987 Act, Dr Breit said:[13]
[13] Reply page 19.
“I would consider that the disease was contracted due to his employment
with the Council which commenced in the year 2000. There is no
evidence of any prior issues.”
Dr Breit was asked:
“…do you believe a causal connection exists between the
worker’s neck and left shoulder injuries (if applicable) and his
employment with Sutherland Shire Council? Please explain your answer.
Dr Breit said:
“No, there is nothing to indicate that his short-term employment at Sutherland Shire has affected the situation after a brief period of employment.”
Dr Breit did not think that maximum medical improvement (MMI) had occurred. He said:[14]
[14] Reply page 21.
“He has not reached maximum medical improvement because he has not had any treatment due to Council’s denial of liability which in my opinion is
incorrect. I am required to be satisfied that he has had adequate treatment and management, he has not.”

Clinical notes

The clinical records were lodged with the ARD, including a SIRA certificate of capacity dated 28 February 2023.[15] The certificate was issued by Mr Keram’s GP, Dr El Akabawey. The diagnosis was of “ongoing neck and left shoulder pain with radiculopathy.” The relationship of the injury to Mr Keram’s work was described as “neck pain with numbness and radiation to left arm due to repeated movement and repeated abnormal neck position for a prolonged period of time.” A pre-existing factor of relevance was said to be “left shoulder muscle spasm.”
Mr Saul referred to a number of clinical notes and his submissions in respect of them will be discussed below.

The s 78 notice

[15] ARD page 177.

The s 78 notice was dated 27 November 2023.[16] The summary of the decision stated:
“There is insufficient evidence to establish you suffer from a work-related injury to your cervical spine and left shoulder. In addition, there is no evidence to suggest you are incapacitated for work in support of your claim for weekly compensation, and the evidence indicates your injury (if work-related) has not reached maximum medical improvement to allow an assessment of WPI in any event.”
[16] ARD page 6.
Under the heading “Reasons Council Disputes Liability” the following appeared, relevantly:[17]
[17] ARD page 8.
“…2. According to Dr Bodel, you performed general labouring work and then became an arborist in 2003. You continued working for the Council until your employment ended on 17 February 2022.
3. We understand since August 2022 you have been employed by Sutherland Shire Council and are working as a full-time arborist.
…….
7. You told Dr Bodel that you had suffered an injury at work at Canterbury-Bankstown Council, in June 2020. You stated there was no specific event that caused the onset of symptoms, but the nature of your work as an arborist brought on head and neck and left shoulder girdle pain and left sided facial pain and pain that radiated down the left arm to the hand. You had trouble using an ‘extendable chain saw above shoulder height’ and this object weighed 12 kilograms. You said you had been using this particular device for about six or seven years.’
…..
11. We note the Council arranged for you to be assessed by Dr Breit, IME on
19 October 2023.
12. In terms of your current role with Sutherland Shire Council, the doctor stated you continue to work as an arborist and your job varies depending on the situation. He observed you don’t climb trees but there are platform devices used. He gathered that part of your work is also dealing with fallen branches etc following storms. He said the work is similar to what you undertook with Canterbury-Bankstown Council but is different and varied.
……
14. In terms of the left shoulder, [Dr Breit] observed there was clinical evidence of rotator cuff irritation, but he admitted there was ‘not so much as an x-ray to review’, therefore he couldn’t ‘indicate anything more’.
15. The doctor considered you were suffering from a disease process (presumably in relation to both the cervical spine and the left shoulder). He considered the disease was contracted ‘due to his employment with the Council which commenced in the year 2000’. He observed there was no evidence of any prior issues.
16. In terms of the duties at the Council that were responsible for the contraction of the disease, the doctor observed as follows:
‘In my opinion there is a relationship (between) having spent long hours working overhead with the pole saw and working overhead in a posture that produces significant stress on both areas.’
17. The doctor stated there was nothing to indicate your short-term employment at Sutherland Shire Council had “affected the situation” after a brief period of employment. He therefore did not believe a causal relationship existed between employment with Sutherland Shire Council and your alleged neck and shoulder injuries.
….
21. At this stage, the Council is unable to accept Dr Breit’s opinion you contracted a disease injury to the cervical spine and the left shoulder in the course of your employment with the Council. Despite observing you are doing similar arboreal work with your current employer, Sutherland Shire Council, the doctor was not prepared to conclude a causal connection exists between your current employment and the alleged injuries to the cervical spine and left shoulder.
22. Dr Breit appears to have taken at face value your opinion your role with Sutherland Shire Council has not had an impact on symptomatology, despite your cervical spine CT scan being undertaken in December 2022, four months after you commenced employment with your new employer. Furthermore, Council observes that Dr Bodel stated you passed a pre-employment medical before commencing employment with Sutherland Shire Council. We therefore believe, contrary to your story, that your cervical spine and left shoulder injuries / symptoms were in fact aggravated or exacerbated by your current employment with Sutherland Shire Council.
23. Council considers it is likely your role with Sutherland Shire Council involves some heavy lifting and overhead work to cut down branches etc, thereby placing stress on the neck and upper limbs, however this is not evident when reading the history recorded by Dr Breit and Dr Bodel. Furthermore, while our solicitors have asked your solicitors for further and better particulars regarding your current employment with Sutherland Shire Council as well as a signed medical authority, a reply has not yet been received. Until we know more about your current employment situation, have received a reply to particulars and are able to view your clinical records to determine the context in which the cervical spine CT scan from December 2022 was undertaken, we are not prepared to accept liability for your injury.”

Mr Andrew Johnson

Mr Johnson wrote a report dated 30 July 2017 for “WorkSmart Rehab” to the respondent Council. The report concerned a left rotator cuff injury of 7 March 2017, and Mr Johnson noted that Mr Keram had been referred to him for treatment after “scans” indicated a small amount of fluid in the shoulder. The injury was reported as occurring “whilst in the course of his normal duties as an arborist for Canterbury and Bankstown Council.”[18]

SUBMISSIONS

[18] Reply page 39.

Mr Malouf

Mr Malouf, in submitting that the mechanism of injury was an important factor in nature and conditions claims, referred firstly to the evidence of Mr Keram and his description of the duties he was required to perform, which included six to seven years repetitive work, and the use of the 12kg telescopic chainsaw. Mr Malouf noted that Mr Keram’s case was supported by Dr Bodel, who took a consistent history, including the requirement for Mr Keram to work with his arms above shoulder height, and the use of the 12kg extendable chainsaw.
Mr Malouf noted Dr Bodel’s diagnosis of rotator cuff symptoms in the left shoulder, and diagnosed the aggravation, acceleration, exacerbation and deterioration of a disease process in the rotator cuff pathology of the left shoulder.
Mr Malouf noted also that the respondent’s medicolegal expert, Dr Breit, was in agreement with Dr Bodel, and in view of that unanimity, expressed curiosity as to why this case was proceeding. He referred to a certificate from Mr Keram’s GP, Dr El Akabawey dated
28 February 2023 as contemporaneous support for Mr Keram’s complaints of ongoing left shoulder pain.
Mr Malouf referred to Hill v The A 2 Milk company (Australia) Pty Ltd,[19] a decision of Member Glenn Capel, in which Member Capel discussed the obligations of an insurer and its management of that claim, and its conduct of those proceedings. This, Mr Malouf submitted, was a similar case.
[19] [2024] NSWPIC 444.

Mr Saul

Mr Saul sought to distinguish Hill on the basis that the insurer in the present case had served its expert report, whereas in Hill, the insurer’s expert report was not disclosed until it emerged during questioning in the arbitration proceedings.
Mr Saul submitted that it could not be said that Dr Breit’s opinion was as unequivocal as it was submitted by Mr Malouf. He submitted that Dr Breit had indeed said that he could not be certain as to the cause of the clinically established rotator cuff irritation.
Mr Saul referred to complaints and histories taken of radicular pain and submitted that because there had been no investigation of the left shoulder, that there was no radiological proof that Mr Keram indeed did suffer from a rotator cuff impingement syndrome. It was possible that the symptoms in the left shoulder were in fact radicular, having been caused by the proven pathology within the cervical spine, he argued.
Mr Saul referred to the report of A/Prof Ghahreman of 18 December 2023, submitting that the history taken therein did not refer to the left shoulder, but was rather concerned with the possibility of radiation from the clearly established pathology in the neck. [But see 1 point 2, 11.10.]
Mr Saul referred to clinical notes contained in the ALD from the applicant dated
13 August 2024. Mr Saul noted that an ultrasound of the right shoulder had been taken on
[20] ALD 13 August 2024 page 485.
27 July 2023,[20] which showed some pathology with calcification and some moderate joint arthritic changes. Mr Saul submitted that could be assumed that those findings would be replicated in an ultrasound of the left shoulder, but none had been taken. Accordingly, it could not be said that the applicant had proved that his left shoulder problems were caused by his employment with the respondent.
Mr Saul also referred to a CT scan report of the cervical spine dated 19 December 2022.[21] This concluded that there was pathology present in the cervical spine which had degenerative changes which were impacting on the exiting left C4 and C7 nerves. Mr Saul suggested that this evidence also raised the question as to whether the left shoulder symptoms were caused by radiation from the neck pathology.
[21] ALD 13 August 2024 page 254.
Mr Saul referred further to the clinical notes of Dr El Akabawey and an entry of
14 February 2023.[22] This recorded Mr Keram’s first visit to this practice, noting that Mr Keram was complaining of:
“neck pain
radiating left side of face, shoulder
as per him due to old/ work cover injury?”
[22] ALD 13 August 2024 page 472.
Mr Saul submitted that these matters would result in such uncertainty as to the cause of the left shoulder symptomatology, with there being a strong likelihood that in fact it was the cervical condition that was the cause, to the extent that it could not be said that the applicant had satisfied his onus of proof.
Mr Saul referred to the report of injury by Mr Johnson from WorkSmart Rehab regarding a left rotator cuff injury of 7 March 2017. Mr Saul suggested that such might have been the cause of Mr Keram’s shoulder problems, and it was consequently a frank injury. Mr Saul referred to a report from “Active Gains Exercise Management”[23] which also diagnosed a rotator cuff injury - presumably the same injury of 7 March 2017, as the documentation from that organisation was undated but Mr Johnson was one of the addressees.
[23] Reply page 49.

Mr Malouf in reply

Mr Malouf submitted that there was no support for Mr Saul’s submissions and that he was indeed contradicted by his own expert. He also submitted that Dr Breit was aware of the material within the clinical notes because he said as much, and he also considered and rejected any connection between 2017 incident and the current condition for the left shoulder. There was no suggestion in the expert evidence that the left shoulder symptoms had been caused by radiculopathy, or radiation.

DISCUSSION

Mr Saul, with his customary thoroughness and persuasive rhetoric, enunciated a number of theories as to the deficiencies he alleged with the applicant’s claim of injury to the left shoulder. His submissions would have made an excellent basis for the preparation of the respondent’s case for hearing, but were unsupported by any expert evidence.
Firstly, he referred to the possibility that the left shoulder injury was nothing more than the effect of radiating symptoms from the cervical pathology, as Dr Breit was uncertain of the cause of the rotator cuff irritation. As noted, Dr Breit said:
“[Mr Keram] has clinical evidence of rotator cuff irritation but there is not so much as an x-ray to review so that I cannot indicate anything more.”
Dr Breit’s report was dated 24 October 2023, and this case was heard on 19 August 2024. That was ample time for the respondent to, at the least, seek a supplementary report from
Dr Breit about Mr Saul’s theory. It did not, and it is reasonable to assume it did not because Dr Breit did not suggest that there was any radiating pain from the cervical spine involved in the causation of this injury . He located the site of the injury in the rotator cuff, and his comment about the absence of any investigation was probably no more than an indication that he could not indicate its precise pathology or pathological severity.
His comment was that on clinical grounds he was satisfied that there was indeed an injury to the left rotator cuff. That is sufficient to establish injury to the left shoulder capable of being referred to a Medical Assessor, as no further findings about the nature of the injury have been established.[24]
[24] See President Judge Phillips in Mosawi v Baron Forge (NSW) Pty Ltd [2022] NSWPICPD 48 at [94].
Secondly, Mr Saul relied on an inference that because A/Prof Ghahreman did not take a history of left shoulder injury in his report of 18 December 2023, but was concerned only with the pathology in the cervical spine, there was a possibility that the left shoulder symptoms were radicular. It is correct that A/Prof Ghahreman did not take a history regarding the left shoulder in that report, however A/Prof Ghahreman advised that he had previously seen
Mr Keram, saying:[25]
“… I have previously summarised out [sic – our] clinical findings.”
[25] ARD page 33.
This previous summary was contained in an earlier report dated 11 October 2023.[26]
[26] ALD 13 August 2024 page 493.
A/Prof Ghahreman began that report by saying that Mr Keram “[d]eveloped neck pain, paraesthesia and numbness in the left cheek, jaw and mouth and left shoulder and pectoral region as performing heavy duties of carrying a saw up above his head during work and carrying other awkward heavy duties”. A/Prof Ghahreman referred to a CT of the cervical scan, saying that it “showed spondylotic changes at multiple levels. C3/4 foramen was very narrowed and this can account for the sensory changes experienced on the left side of the neck and the shoulder and the face…”
A/Prof Ghahreman expressed concern in that earlier report about the facial symptoms and organised a cranial MRI together with an MRI of the cervical spine. His later report of
18 December 2023 was concerned with the results of the MRI scan of the cervical spine.
Again, there was ample time for the respondent to obtain a supplementary report from
Dr Breit regarding Mr Saul’s point. It may be that because A/Prof Ghahreman did not mention the left shoulder in his second report, the respondent assumed that it was not implicated when the MRI of the cervical spine was considered. One could speculate on other reasons why a supplementary expert report was not obtained, but in the final analysis, there was no supplementary expert opinion, and Mr Saul’s submission is based on no more than speculation.
Similarly, Mr Saul referred to the ultrasound of the right shoulder of 27 July 2023 and invited a finding that an ultrasound of the left shoulder would probably have resulted in similar findings, that is that the degenerative changes were the cause of the left shoulder symptoms, which left open the possibility that they had not been work-related. In the face of the histories taken by Dr Bodel, A/Prof Ghahreman and his own expert witness Dr Breit, this submission, too, may be dismissed as speculative and without support.
Mr Saul then relied on an entry in the clinical notes of Dr El Akabawey on 14 February 2023 which indicated a complaint of “neck pain radiating left sided face, shoulder..” Mr Saul submitted that this, too, comprised evidence that suggested the cause of the left shoulder pain was pain radiating from the neck. Leaving aside the caution with which clinical notes should be approached as reliable evidence, there was no expert opinion that reflected
Mr Saul’s analysis, which again must be rejected as being speculative.
Mr Saul’s submission regarding the left rotator cuff injury of 7 March 2017 was difficult to follow, with respect. As indicated above, it had been investigated by Dr Breit, who accepted that the pain had eventually settled. It was probably a frank injury, but how that relieves the respondent of liability in circumstances where its own expert evidence has found it liable as a result of the subsequent nature and conditions of Mr Keram’s duties as an arborist is not at all clear, and is entirely free of any evidence that would support it.
Mr Keram has unanimous support for his claim of sustaining an injured shoulder as a result of the nature and conditions of his work with the respondent. The respondent had ample time to engage with the denials within its s 78 notice of 27 November 2023. The notice stated that it did not agree with the advice of its own medicolegal expert, but did nothing further. It did not tender any factual report as to the allegations made by Mr Keram within his statement of 6 June 2024 nor the histories he gave to the expert witnesses, particularly that he had to operate an extendable chainsaw weighing about 12kg above shoulder height. There was no supplementary report tendered from Dr Breit in view of his comment that when he examined Mr Keram there was nothing to indicate that his employment with Sutherland Council had affected “his situation”.
Dr Breit’s report was dated 24 October 2023 and the chronology appears to be that
Mr Keram ceased work with the respondent in February 2022 and did not commence employment with the Sutherland Council until August 2022. Dr Breit described Mr Keram’s engagement with Sutherland Council as “short-term employment” and that “after a brief period of employment” his situation had not been affected. Mr Keram had been employed by the Sutherland Council for about 14 months at the time he was seen by Dr Breit, and had been carrying out work as an arborist but as he told Dr Breit, the work he was doing was “similar but different and varied”.
Mr Keram’s statement of 6 June 2024 should also have been of interest to a person within the insurer experienced in this jurisdiction. Mr Keram said at [24] that his employment had been terminated on 16 February 2022, and the respondent informed Dr Breit that he started work with Sutherland Council in August 2022, as we have just noted. Under the heading “Subject Injury” Mr Keram referred to dates in January and March 2023, following which, at [17] he said “I did complain to management on numerous occasions…” The implication is that Mr Keram was complaining to management about the events he had just described in January and March 2023. However, Mr Keram was not then working for the respondent, he was working for Sutherland Council.
There was no attempt by the Council to reconcile these inconsistencies and instead it simply relied on its s 78 notice of 27 November 2023 and did nothing further. In the circumstances I have no hesitation in accepting the evidence of the expert witnesses. Dr Bodel and Dr Breit, (who agreed with Dr Bodel’s diagnosis of a left rotator cuff injury).
I accept that the work Mr Keram has been doing with Sutherland Council, although similar, has sufficient variation and difference to his work with the respondent that he is able to do such work without aggravating the condition that had been caused by the respondent. Such a conclusion follows from Dr Breit’s history, but bearing in mind that Mr Keram had been then working for the Sutherland Council for about 14 months which, in context, would appear to be inconsistent with the phrase “short term employment” used by Dr Breit. It may be that he assumed Mr Keram had only been working at Sutherland Council since August 2023, and not 2022. This was another matter that a pro-active claims manager might have followed up.
In the final analysis I am required to make findings on the evidence that is put before the Commission, and not on speculation as to what might have happened had things been done properly.
Accordingly I make the findings and orders above.

[2024] NSWPIC 535

27 September 2024