Khalek v Mouy Formwork Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Khalek v Mouy Formwork Pty Ltd [2022] NSWPIC 439
APPLICANT:	Moufid Abdul Khalek
RESPONDENT:	Mouy Formwork Pty Limited
MEMBER:	Christopher Wood
DATE OF DECISION:	4 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Whether a contract or any agreement was formed by the parties at all and if so was it to be characterised as a contract of service or contract for services such that the applicant was a worker or deemed worker for the purposes of the Workers Compensation Act 1987 (1987 Act); whether applicant had discharged onus; body parts and consequential conditions for referral to medical assessor for assessment of whole person impairment; whether lumbar spine injury and alleged consequential gastrointestinal condition were related to applicant’s frank injury; in accurate history of prior gastrointestinal condition given to medico legal specialists; CFMEU & Anor v Personnel Contracting Pty Limited, 2G Operations & Anor v Jamsek & Ors, Mateus v Zodune Pty Limited, Gharibeh v Secretary, Ministry of Health, On Call Interpreters and Translators Agency Pty Limited v Commissioner of Taxation, Jafarian v WildFire Interiors Pty Limited, Makita v Sprowles considered; Held — on balance the material before Commission established a contract was formed between the parties and in the absence of a comprehensive committal of contract terms to writing regard was to be had to substance of their relationship; the contract was one of service and as such the applicant was a worker for purposes of the 1987 Act; the applicant suffered a lumbar spine injury in accident but on balance the gastrointestinal condition (digestive system) could not be held to be consequential on pain medication taken by applicant; remitted back to President for referral to medical assessor for assessment of whole person impairment entitlement on all injuries and conditions claimed excluding gastrointestinal.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant was employed by the respondent under a contract of service and at all material times he was a worker for the purposes of the Workers Compensation Act 1987. 2. The applicant suffered injuries to his left wrist including scarring, cervical spine, lumbar spine and consequential cardiovascular condition as a result of an accident on 5 April 2018 while employed by the respondent. 3. An award for the respondent on the applicant’s claim for inclusion of a consequential gastrointestinal condition in whole person impairment assessment by the Medical Assessor. 4. The Application to Resolve a Dispute is remitted back to the President for referral to a Medical Assessor to determine the applicant’s level of whole person impairment by reference to injuries to the left wrist, cervical spine and lumbar spine including TEMSKI scarring (left wrist) and a consequential cardiovascular condition. NOTATIONS 5. The documents to be referred to the Medical Assessor include: a) this Certificate of Determination; b) the Application to Resolve a Dispute and attachments, and c) the Reply and attachments.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mr Moufid Abdul Khalek (Mr Khalek), says that on 5 April 2018 within a couple of weeks of commencing employment with Mouy Formwork Pty Limited (the respondent) as a formwork carpenter he suffered injuries after falling from a ladder at a construction site in Meadowbank NSW.
Mr Khalek sustained multiple injuries which are referred to in the Application for Review of Decision (ARD) involving his left wrist (a fracture), cervical spine, lumbar spine, and consequential cardiovascular (hypertension) and gastro-intestinal conditions.
The respondent says that Mr Khalek was not a worker or deemed worker for the purposes of an entitlement to receive workers compensation benefits[1].
[1] The parties broadly agree that whether the question is posed under s 4 of the Workers Compensation Act 1987 or Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998 is immaterial.
The respondent says that Mr Khalek has not established a contract was formed with the respondent and if one was, it was not a contract of employment but rather one for services (to the respondent). It says Mr Khalek was conducting his own business.
If Mr Khalek is found to be a worker, the respondent disputes that he has an entitlement to lump sum compensation beyond the injuries he suffered to his left wrist including scarring, cervical spine and a consequent hypertension condition; i.e. it disputes that he suffered a lumbar spine injury or has a gastro-intestinal condition consequent upon the incident.

ISSUE FOR DETERMINATION

The parties agree that the issues for determination are:
(a) whether Mr Khalek is a worker or deemed worker under a contract of employment with the respondent, and
(b) whether (if an employment relationship is established) Mr Khalek suffered a lumbar spine injury and has a gastro-intestinal condition consequent upon the incident.
The left wrist, cervical spine and cardio vascular conditions and an assessment of TEMSKI[2] scarring (left wrist) are conceded as matters to be determined on any referral to a Medical Assessor[3].
[2] Table for the Evaluation of Minor Skin Impairments
[3] Arising out of surgery to the left wrist.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The parties attended an initial telephone conference on 2 June 2022. Ms Azer, solicitor, appeared for Mr Khalek and Ms Kheir appeared for the respondent on instructions from EML.
It was made clear very early in the course of the telephone conference that the issue of whether Mr Khalek was a worker for the purposes of the legislation was a fundamental barrier to resolution.
Orders were made referring the matter to conciliation/arbitration on 30 June 2022 at which counsel, Mr Craig Tanner, appeared for Mr Khalek and Mr Fraser Doak appeared for the respondent.
At the outset of the conciliation phase which was conducted before me in person at the Commission I again enquired as to the prospects for resolution and was assured by both counsel that there was no scope for compromise. I was accordingly satisfied the matter was appropriate to proceed to arbitration and the parties understood the nature of the issues the Commission was being required to decide. Mr Khalek was present throughout the process.

Oral evidence

There was no application to lead oral evidence or cross examine Mr Khalek or any other witnesses.

FINDINGS AND REASONS

Consistent with how the arbitration proceeded with agreement of counsel, I deal firstly with the question of whether Mr Khalek is a worker for the purposes of the legislation before considering the medical aspects of his claim which are in dispute.

Overview – evidence

At the outset I note that there is very little evidence before the Commission which assists beyond Mr Khalek’s statement and annexures thereto. The respondent’s insurer EML carried out some late investigations when Mr Khalek’s solicitors sought to press his workers compensation claim in 2021. The material submitted reveals EML did some investigations by telephone at the time the claim was first received but the nature of these is not readily apparent beyond there being telephone discussions with both the respondent’s representative Mr Mohammed Al Taey and Mr Khalek. It is surprising there are no contemporaneous notes of those discussions in the Reply to the ARD given they formed the basis for an initial rejection of Mr Khalek’s claim.
Mr Doak for the respondent pointed out that Mr Khalek bares the onus of establishing whether or not he is a worker for compensation purposes.
While I am satisfied that the s 78 notices issued by EML raise in very general terms the primary issue of whether Mr Khalek was a worker, it is also surprising there is so little material filed by either party in relation to what on any view of it is often a highly contested area and one on which the High Court has issued two decisions this year. The recent decisions of the High Court were referred to in submissions by both parties[4].
[4] CFMEU & Anor v Personnel Contracting Pty Limited [2022] HCA1 (Personnel Contracting) and 2G Operations & Anor v Jamsek & Ors [2022] HCA2 (Jamsek).
The Commission is left to decide the matter on balance by reference to Mr Khalek’s statement with relevant annexures, his tax returns produced late and a factual report to the respondent’s insurer, EML and some later investigative material (three years after the initial claim) which indicates the respondent got nowhere in testing Mr Khalek’s claim because it could not locate material witnesses.
I raised the inadequacy of initial investigations with Mr Doak during his submissions and he surmised probably accurately, the answer is financial; i.e. lack of resourcing and funding for thorough factual investigation at the time of the initial claim. I observe here that the problems that bedevil the building and construction industry exemplified by media reports of companies ceasing to trade, “phoenixing” activity and workers being asked to conduct their work on varying often uncertain terms depending on the convenience of the hirer complicates the respondent’s problems.

Applicant’s evidence

Mr Khalek, who was born in Lebanon, migrated to Australia in 2003 after working as a carpenter in his home country for some 20 years. He initially worked as a shop fitter carpenter for some five years before working for various employers in the 10 years following 2008. He says that some employers required him to provide an ABN and some did not raise the issue. Mr Khalek makes no secret of the fact that he held an ABN in his own name but also says that he never held his own public liability insurance and never worked for more than one employer at a time. He said that when he found work, he worked exclusively for the employer concerned[5].
[5] Paragraph 8 of Mr Khalek’s statement dated 28 April 2022.
At paragraph 15 of his statement Mr Khalek says he was in need of work and that a member of his community, Moustafa, put him in touch with a man identified as Mohammed of Mouy Formwork. He was given a telephone number and on 3 March 2018 he contacted a person who he understood to be (the same) Mohammed by SMS who advised Mr Khalek his work history and experience was satisfactory and made an offer to pay him $42 per hour for work Monday to Saturday between 7am and 3pm[6].
[6] Paragraph 16 of Mr Khalek’s statement.
Mr Khalek says he understood that he was being hired as an employee.
Thereafter there were a series of SMS messages to and from Mr Khalek’s mobile phone to the person identified as Mohammed[7]. At no point has the respondent suggested these SMS exchanges are contested as being other than genuine although whether the other party was Mohammed Al Taey of the respondent is in issue.
[7] Screenshots of the communications are annexed to the Statement.
Some formalities were put around the Mr Khalek’s engagement and on 25 March 2018 he received details from Mohammed of a job site where he was required to attend at Meadowbank. He says that he was also sent the details of two men identified as Tom and Johnny who were the head contractors or employed by the head contractors on site. Pausing there, it is to be noted that in the investigations requested by the respondent’s solicitors and consistent with Mr Khalek’s own evidence, these men appear to have been principals or engaged in a business named Dinomo Formwork Pty Limited (Dinomo)[8]. No cooperation was forthcoming from those associated with that entity.
[8] Procare investigation report to Hicksons dated 27 January 2022; Reply at page 21.
I note here from particulars provided by Mr Khalek’s solicitors that business or more accurately company, albeit it seems through its insurer Catlin Australia Pty Limited, is or was the subject of District Court proceedings relating to the incident[9]. Certainly the circumstances of Mr Khalek’s accident would appear to reflect a possible cause of action at common law against any parties that may have had a supervising role on site. The status of those proceedings is not clarified by the material filed.
[9] ARD at page 31.
The annexures to Mr Khalek’s statement are helpful and broadly corroborative of his application although both counsel at different pointed out some of the entries are at least curious.
Annexure A is a SMS exchange between Mr Khalek and an individual whose name appears on the screen of his phone as ‘Mohammed’, who, in identifying a work site at Epping Road, Macquarie Park said:
“Please ensure all the boys have their PPE, personal tools, green cards and photo ID with them. Inductions at 6.45am”[10].
[10] I take PPE to mean Personal Protective Equipment.
Thereafter is the SMS exchange on 25 March 2018 appearing as Annexure B again from Mohammed to Mr Khalek. It is from the same mobile phone number as the three earlier messages.
Shown as Annexure C to Mr Khalek’s statement is a copy of a certificate of currency of workers compensation insurance sent by the same Mohammed to Mr Khalek on 5 April 2018 after his accident. The policy records the owner as Mohammed Al Taey and/or Mouy Formwork Pty Limite.It shows a number of workers (6) and a wage roll ($200,000). Mr Khalek says that Mohammed forwarded it to him after he reported his injury on 5 April 2018 and that Mohammed lodged a claim form for him.
Annexure D to Mr Khalek’s statement is a copy of a SMS exchange consistent with Mr Khalek’s evidence that Mohammed asked him for his ABN number. This was provided on 6 April 2018 and shortly thereafter on 11 April 2018 EML issued a notice disputing liability for the injury on the basis that:
“You do not meet the definition of a deemed worker as defined by Schedule 1 of the WIMS Act”.

Was a contract formed between the parties at all?

The information EML purported to rely upon in its notice to Mr Khalek is said to be conversations (I must assume) its representatives had with both Mr Mohamad Al Taey and Mr Khalek. The substance of the conversations is not before the Commission and I note my earlier remarks on point. If Mr Al Taey was not the Mohammed with whom Mr Khalek had been communicating this was a significant point one would have expected EML as insurer for the respondent to raise.
It is suggested by Mr Doak that it is a very large incremental influential leap to conclude that the Mohammed with whom Mr Khalek was dealing was Mohammed Al Taey of Mouy Formwork. Attempts to locate Mr Al Taey and the principals of Dinamo in 2022 were unsuccessful. As I alluded to earlier, I do not find this surprising and again I take notice of the fact that the building and construction industry is characterised, some would say plagued, by casual work, the cash economy and the phoenixing of companies. If the existence of a contract (no matter how characterised) was seriously in issue and it was said no connection could be made with Mouy Formwork it ought to have been fairly and squarely raised by EML in 2018. Mr Khalek has made a statement which makes straightforward allegations corroborated by what are not disputed as anything other than accurate (annexed) images of SMS exchanges with the man he understood to be Mohammed Al Taey who following the accident on 5 April 2018 gave Mr Khalek a copy of his company’s certificate of currency of workers compensation cover.
Mr Doak noted that there were various dispute notices issued which identified the issues of ‘worker’ and ‘deemed worker’ these however, do not go to the fundamental factual dispute. In response to questioning from me, Mr Doak said that Mr Tanner for Mr Khalek had been very skilful in linking or referring to ‘Mohammed’ as ‘Mr Al Taey’ throughout his submissions. He suggested that Mr Khalek’s case simply did not get there and “that’s really the crux of the respondent’s case”[11]. Mr Tanner observed that he had been careful to do that because the first he had heard of the respondent’s position on point was the morning of the arbitration.
[11] Paragraph 10, page 21, of the Transcript
As I have said if EML thought it had a strong point to make on such a threshold issue it undoubtedly would have been made at that time[12].
[12] Page 25 of the ARD “relied upon phone discussions with Mohammed of Mouy Formwork”.
Mr Doak noted there was no evidence from Mustafa from whom Mr Khalek contends he obtained Mr Al Taey’s details. Mr Doak said I could only be satisfied that Mr Khalek had a contract with someone called Mohammed.
The notice of dispute issued by EML, on 11 April 2018 is not helpful. It merely says that “you do not meet the definition of a deemed worker as defined by schedule 1 of the WIMS Act”.
The information upon which EML relied was a telephone discussion with Mohammed of Mouy Formwork and Mr Khalek.
As I have said records of those conversations, whether in the form of file notes or otherwise, are not annexed to the Reply and this is something that Mr Khalek’s lawyers raised in correspondence to EML dated 15 October 2021. Surely someone at EML made notes of the conversation and the absence of them is surprising. I could infer they are (if they exist) not helpful to the respondent.
I could also infer that after discussing the matter with EML, Mohammed of Mouy Formwork for whatever reason may have had second thoughts about his relationship with Mr Khalek although I make no findings on point.
It is perhaps trite to observe a s 78 notice ought provide a clear explanation as to why an insurer on behalf of a respondent employer has disputed a liability and provide all relevant documents to support that reason. See the decision of DP Roach in Mateus v Zodune Pty Limited[13] and Gharibeh v Secretary, Ministry of Health[14].
[13] [2007] NSW WCC PD227.
[14] (NSWPIC 2021).
The notice issued in 2018 was on this basis deficient.
A second notice was issued when Mr Khalek’s solicitors reagitated his claim and provided particulars pointing to the nature of the relationship which they contended was clearly one of a worker.The respondent’s lawyers were appointed around that time. Thereafter a factual report referred to by Mr Doak in his submissions was prepared. This is dated 27 January 2022 and appears in the schedule of documents to the Reply.
A s 78 notice dated 31 January 2022 was also issued. The reasons for the re-affirmed decisions to dispute liability to make payments of compensation to Mr Khalek are far more detailed on this occasion[15].
[15] See pages 33 and 34 of the Reply.
It is reasserted that “despite the issue of disputed employment being raised in April 2018, no factual evidence was provided to support the existence of this contract nor was any other factual evidence provided”. That statement seems to be at best somewhat ambiguous if it sought to seriously assert there was no relationship at all between the parties.
Mr Doak observed in his submissions that we have not entirely abandoned forensic requirements in this jurisdiction. I agree with that but with respect to Mr Doak he appears to be making the best of a bad lot through a failure to properly investigate and test Mr Khalek’s claim in 2018.
At the heel of the hunt the respondent has not been able to locate Mr Al Taey or the directors of the entity identified as Dinamo; this is not Mr Khalek’s fault. Some of the information the respondent sought was provided late but ultimately, Mr Khalek has given a statement with relevant annexures including a contemporaneous screen shot of the respondent’s certificate of currency that point to an agreement between it and Mr Al Taey. EML then sought to deal with Mr Khalek by reference to that certificate of workers compensation insurance and had a conversation with “Mohamad from Mouy Formwork”[16] whose name appears on the certificate and as such on any view of it had authority to bind that company.
[16] Page 25 of the Reply.
Against that background Mr Khalek or those advising him should not then have to guess what Mr Doak calls the ‘crux’ of the respondent’s case is that the ‘Mohamad’ referred to in Mr Khalek’s statement and in the annexed SMS exchange was not Mr Al Taey. Mr Tanner noted that in his discussions with Mr Doak prior to the arbitration commencing, it was the first time he realised the respondent was going to run the case on that basis. It was certainly not raised at the original teleconference and both the applicant and this Commission have been led into error if that truly is the crux of the respondent’s case.

As I have said I have some sympathy for Mr Doak who conceded the shortcomings in terms of the resources being available to undertake more thorough investigations[17].
[17] Paragraphs 15-25 of the Transcript, page 20.
On balance given the documents available to me I am satisfied that there was a contractual relationship between Mr Khalek and the named respondent company through its principal Mr Al Taey who is the Mohammed in the SMS exchanges.

What was the nature of the contract?

Both counsel addressed the High Court’s decision in Jamsek.
The majority in Jamsek make it clear that where the parties have comprehensively committed the terms of their relationship in a written contract, the adequacy of which is not challenged on the basis it is a sham or otherwise ineffective, the characterisation of that relationship must proceed by reference to the rights and obligations that parties under that contract. It is essentially a question of form as opposed to substance.
In Mr Khalek’s case we have no written terms for the contract beyond the SMS exchange and must necessarily, as conceded by both counsel, look more to the substance of any agreement.
The other High Court decision this year in Personnel Contracting is perhaps of more assistance. Some of the determinative factors the High Court considered in concluding that Mr McCourt (in that case) was an employee included how much he was paid and the fact he was only paid for his labour. Other relevant factors were that he was paid direct, there was a degree of control retained over him (even though the Court was dealing with a labour hire agency arrangement as opposed to a host employer) and the ease with which Mr McCourt’s employment could be terminated if he failed to obey directions of his host employer.
Both counsel also drew attention to the decision of Bromberg J in On Call Interpreters and Translators Agency Pty Limited v Commissioner of Taxation[18]. That decision has been relied upon by this Commission in several decisions and addresses matters to be taken into account in determining whether an individual is conducting a business as opposed to providing services to an employer as an employee.
[18] (No 3) [2011] FCA 366.
Justice Bromberg set down a number of tests or indicia which might assist the determination of whether a particular enterprise constitutes a business or entrepreneurial activity verses that of an employment relationship.
The central points which can be taken out of the decision in assessing the question are:
(a) is the person performing the work an entrepreneur who owns or operates a business,
(b) and, performing the work, is that person working in and for that person’s business as a representative of that business and not of the business receiving the work.
Mr Tanner also cited two decisions of this Commission in which he appeared, one in which he was successful the other unsuccessful in making the case that his client was a worker. In referring to the first of those, Jafarian v WildFire Interiors Pty Limited[19], he quoted from the senior arbitrator’s decision at first instance as follows:
“There is a great deal of evidence that suggests the applicant was in fact conducting a trade or business in his own name. I have identified this evidence above such as the tax invoices containing the business ABN, business address and inclusion of GST, the lack of exclusivity”.
[19] [2021] NSWPICPD 24.
Mr Khalek had an ABN. He says he was not asked to provide details of that ABN until after Mr Al Taey had engaged with EML. It may or may not be that Mr Al Taey had a change of heart having previously provided Mr Khalek with a copy of his workers compensation certificate of cover.
Mr Khalek says he worked exclusively for the respondent. He worked for a fixed hourly rate and his days of work were dictated by Mr Al Taey. He provided his own tools but this is common in the construction industry. Reference was made by both counsel to some curious aspects of the SMS messages including that referring to Mr Khalek perhaps organising for the attendance other workers at the site.
I do not think this goes anywhere in the context of determining whether or not he was a worker. He as an experienced tradesman may have well accepted greater responsibility to get fellow workers to the jobsite. It does not assist the respondent’s argument in any way although I do agree the exchange is curious. Based on the tax returns before the Commission Mr Khalek could hardly be said to be making a profit of the type normally made by someone working in their own business the income return is at best moderate. He was also under the supervision of others, being asked to deal with Dinamo Formwork’s principals after Mr Al Taey had directed which worksite he was to attend during his brief period of employment. The involvement of other contractors giving instructions is not uncommon in the construction industry where a cascade of head contractors, subcontractors and employees are routinely on building and construction sites.
The material suggests Mr Khalek was at the bottom of the control chain. He did not advertise his services and it is neither here nor there whether he operated as a sole trader or under the umbrella of a corporate entity in these circumstances. He did not have any employees as is clear from his tax returns. The expenses he claimed against his income are not of the magnitude to suggest he had employees or engaged in significant expenditure to derive income in the construction industry. He certainly did not operate in a way that could be said to be entrepreneurial in obtaining additional income by leveraging multiple jobs or employees for profit. He relied on his own labours at a fixed hourly rate.
Mr Khalek seems to have been someone who was taking what he could get in a tough industry rather than embarking on a more structured, perhaps even sophisticated or entrepreneurial business where he could pick and choose his jobs, quote and compete for contracts by negotiation and employ others.
I am satisfied in the absence of a comprehensive committal of contract terms to writing that on balance the material before the Commission establishes that:
(a) there was an agreement between Mr Khalek and the respondent, and
(b) that the substance of how the parties conducted themselves characterises the relationship between them as one of a contract of service and accordingly Mr Khalek was a worker for the purposes of the legislation on 5 April 2018.

Medical questions

Before referring this matter to the Medical Assessor for assessment of Mr Khalek’s whole person impairment I am to determine whether such assessment ought include an injury to Mr Khalek’s lumbar spine and a consequential injury to the gastro-intestinal system.
As with the material going to ‘worker’ the medical evidence in relation to both the disputed injuries or consequential condition is far from extensive. The respondent has however, some evidence before the Commission to assist it on this aspect.

Lumbar spine

Mr Tanner says that the applicant relies on the medico legal report of Dr Dias dated 26 July 2021.
In particular he quotes from that report as follows:
“The applicant has sustained persistent aggravation of the previously asymptomatic degenerative lumbar scoliosis secondary to an acute soft tissue impaction of the injury.”[20]
[20] Page 67 of the ARD.
Mr Tanner appropriately acknowledged that there was an absence of initial complaint with the focus of Mr Khalek’s reporting being the fracture to his left wrist. He pointed out that the respondent had not disputed, despite lack of complaint at the time of the injury, that Mr Khalek had injured his cervical spine in the fall from the ladder. He contrasts this unfavourably with the dispute over lumbar spine. I note here however, that Mr Khalek’s then general practitioner, Dr Milad recorded on 9 April 2108 not only the fracture to Mr Khalek’s wrist (mistakenly referred to as the right wrist) but also a laceration to the lower lip and “tooth ache / loose”.
Evidently then Mr Khalek did suffer some form of trauma to upper body consistent with the proposition that he may well have injured his cervical spine at the time. The respondent’s decision to accept the cervical spine as being injured in the fall also finds further support in the report of Dr Damodaran dated 27 November 2018. Dr Damodaran in reporting to Mr Khalek’s special practitioner, Dr Milad records that Mr Khalek had a two year history of intermittent neck pain and left sided cervical radiculopathy. In other words it pre-dated his fall. The work related incident necessitating his admission to hospital for treatment for the fractured wrist caused an acute flare up of cervical radiculopathy. It seems in the circumstances that the respondent’s decisions to accept that Mr Khalek injured his cervical spine does not necessarily translate to the ready acceptance of the lumbar spine injury as contended for by Mr Tanner.
That said, Mr Tanner noted the mechanics of the fall which would have been quite traumatic as being consistent with a lower back injury even though it was not initially reported. He points to the medico-legal opinion of Dr Dias who found an aggravation of previously asymptomatic degenerative lumbar spondylosis.
Mr Tanner in turn addressed the respondent’s medico-legal report from Dr Doig dated 19 December 2021 to the respondent’s solicitors[21]. That report is primarily concerned with Mr Khalek’s left wrist injury but also addresses the link between his accident and the cervical spine and lumbar spine injuries.
[21] Page 122 of the ARD.
Mr Tanner points to a couple of entries from that report which appear at page 41 of the Transcript as indicating both a concession Dr Doig accepts the possibility of a back injury by way of aggravation or in the alternative that it predated the accident. In other words it provides no answer unlike Dr Dias.
Mr Doak noted the absence of complaint in Mr Khalek’s initial consultations with Dr Milad. He notes that Dr Dias is essentially dependent upon Dr Milad recording later in his notes a connection between neck and lower back pain and the accident. Mr Doak drew attention to Mr Khalek also receiving treatment at the Worker’s Health Centre in Parramatta. This is a well known practice and its practitioners are usually conspicuous by the thoroughness by which they take medical histories from those coming into its care. In seeing Drs Rubio and Linwood at that centre in June 2018, Mr Khalek completed a questionnaire which did not mention injury to his lumbar spine.
There are inconsistencies in the medical history. During Mr Doak’s submissions on point I queried when Mr Khalek took up Uber driving (it being referred to in his statement and some of the medical histories obtained by some of the doctors involved in the claim). Mr Doak identified it as being around May 2019 which is only shortly after neck and lumbar pain are recorded by the treating doctors. Mr Doak says that one could hurt one’s lumbar spine falling off a ladder but the question is whether Mr Khalek did in fact do that (on the balance of probabilities).
Clearly the fall from the ladder was a traumatic one leading to a significant wrist injury leading to surgery with associated injuries which were recorded as involving, amongst other things, facial injuries in the form of a laceration to the lower lip and dental damage. No doubt Mr Khalek was focused upon the most urgent presenting symptoms. He had had previous neck pain and the doctors have addressed that such that the respondent has made the reasonable concession that the cervical spine was injured. While I do not accept that it is a straight leap to accepting that the lumbar spine was injured, I am bound to have regard to the nature of the injury. Common sense suggests it would have been quite a shake up for Mr Khalek. He was able to take up Uber driving in 2019 and perhaps any injury to the lumbar spine was therefore minimal. On balance given Dr Doig’s equivocation on point I accept that on balance an injury to the lumbar spine did occur. Whether that injury was general shake up to the lumbar spine or an aggravation which has continued in the face of extended hours behind the wheel as an Uber driver is another matter.
The Medical Assessor ought be asked to consider the level of impairment referrable to a lumbar spine injury.

Gastro-intestinal condition

Beyond what is recorded in the treating general practitioner, Dr Milad’s, notes the evidence in relation to the consequential gastro-intestinal condition comes from Dr Berry for Mr Khalek and Dr Sethi for the respondent. There is no doubt Mr Khalek has taken a cocktail of medication.
Dr Berry records in consultation in July 2021 that in terms of past history, Mr Khalek told him he had received treatment some 14 years previously for an anal fissure but apart from that he had no gastro-intestinal problems.
Mr Tanner noted in submissions it is common to see a development of a consequential gastro-intestinal condition as a result of the use of medication and Dr Berry does indeed record that Mr Khalek said that he developed reflux, bloating and heavy feelings in his abdomen and constipation following surgery.
Dr Berry says that:
“It would appear that as a result of the injury he suffered problems with his blood pressure which is now under control and he also developed bloating and chronic antral gastritis as a result of his medication intake. I would consider that his gastroenterological problems are a direct consequence of the medication he required for his musculoskeletal injury.”
Mr Tanner addressed Dr Sethi’s opinion and notes that the history taken by him confirms Mr Khalek’s statement that there was no previous history of gastro-intestinal symptoms. These were recorded as first developing in August 2018 following corrective surgery to the wrist.
Mr Tanner was also critical of Dr Sethi for drawing attention to other factors such as the body mass and the proposition that the description of bloating etc is strongly suggesting of irritable bowel syndrome. There is reference to it being a common condition effecting the population. Mr Tanner says that is not an answer to the timing of the onset of Mr Khalek’s symptoms in this case.
Mr Doak drew attention to the fact it is demonstrably incorrect that Mr Khalek did not have any symptoms in relation to gastro-intestinal issues until after his accident. He drew attention to the notes of Dr Milad and an entry on 17 July 2017 that Mr Khalek was suffering from irritable bowel syndrome[22].
[22] Page 153 of the ARD.
On review of the records provided by Dr Milad I note that there is a further entry of irritable bowel syndrome on 30 March 2017 and he was prescribed Degas capsules at that time.
Mr Doak submitted the inability of Dr Berry and indeed for that matter Dr Dias to address the correct history means that Mr Khalek falls foul of “fair climate” principles well understood. Mr Doak contended that this is fatal to Mr Khalek’s case and went further to suggest that the conclusions reached by Dr Berry are merely a bare assertion. Dr Doak rightly drew attention to Makita v Sprowles[23] principles and the importance of experts providing reasons for their views, citing decisions of this Commission on point.
[23] [2001] NSWCA 305.
In the context of an inaccurate history having been given by Mr Khalek (in the face of Dr Milad’s notes) the failure by Dr Berry to set out clearly the reasons for how he gets to his opinion ought give additional grounds for pause.
Mr Tanner countered in his submissions in reply that all that Dr Berry was doing was stating what is common knowledge and Dr Sethi had acknowledged the potential relationship between medication and constipation. Mr Tanner conceded the historical omission that Mr Khalek had presented with irritable bowel syndrome since July 2017 but says it is a one off.
With respect to both counsel I have identified an earlier complaint such that there appears to have been up to a four month history of irritable bowel symptoms less than a year before the accident. A prescription medications summary appearing at page 165 of the ARD sets out three separate prescriptions for Degas capsules between March 2017 and July 2017.
This is an omission in the history and one that both Dr Berry and Dr Sethi ought to have been made aware of. It cannot be lightly dismissed. That neither medico-legal doctor, importantly Dr Berry, was able to consider it is unsatisfactory. Given the true history of preinjury irritable bowel problems for me to find, as a matter of “common knowledge”, that a gastrointestinal condition of the type from which Mr Khalek suffers is a consequence of or results from his post injury medication is fraught with difficulty. I am not satisfied Mr Khalek has on balance discharged his onus on this aspect of his claim.
Accordingly, in summary there will be an award for Mr Khalek. I find he is a worker for the purposes of the legislation. I find that he did suffer a lumbar spine injury in the incident on 5 April 2018 but the evidence does not allow me to find on balance that any gastro-intestinal condition from which Mr Khalek may suffer is consequent upon the taking of medication for pain relief as a result of his injuries. The ARD is to be remitted to the President for referral to a Medical Assessor for whole person impairment for all other injuries and conditions claimed.

[2022] NSWPIC 439

4 August 2022