Maamari v Formdex Pty Ltd
[2024] NSWPIC 304
•12 June 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Maamari v Formdex Pty Ltd [2024] NSWPIC 305 |
| APPLICANT: | Issa Maamari |
| RESPONDENT: | Formdex Pty Ltd |
| MEMBER: | Fiona Seaton |
| DATE OF DECISION: | 12 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for ongoing weekly payments and medical expenses for injuries to the cervical spine, both shoulders and both elbows; Held – the accepted injuries resulted in partial incapacity for work; the applicant found to have capacity to undertake work for 20 hours per week at $32.50 per hour earning $650 gross per week from 12 September 2023; the respondent to pay the applicant’s reasonably necessary medical and related expenses. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant is partially incapacitated for work as a result of injuries sustained on 3 April 2023 for the period 12 September 2023 to date and continuing. 2. The applicant’s pre-injury average weekly earnings are agreed at $2,395 (as indexed). 3. The applicant has current work capacity to undertake work for 20 hours per week at $32.50 per hour earning $650 gross per week. The Commission orders: 4. The respondent is to pay weekly compensation to the applicant in accordance with s 37(3) of the Workers Compensation Act 1987 as follows; (a) $1,266 per week from 12 September 2023 to 30 September 2023, (b) $1,311.41 per week from1 October 2023 to 31 March 2024, and (c) $1,346.52 per week from 1 April 2024 to date and continuing. 5. The respondent is to pay the applicant’s reasonably necessary medical and related expenses arising from his injuries pursuant to s 60 of the Workers Compensation Act 1987. 6. The parties have liberty to apply within 14 days in respect of the calculation of the indexation of pre-injury average weekly earnings. |
STATEMENT OF REASONS
BACKGROUND
The applicant Mr Issa Maamari is a 60-year-old self-employed formwork carpenter who was working for the respondent at the time of his injury. On 3 April 2023 he was working on a ladder when he lost his balance, hit his elbows on timber and sustained injuries to his cervical spine, both shoulders and both elbows.
On 15 August 2023 the respondent issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 disputing liability for strain of muscles and tendons of the rotator cuff of both shoulders, and contusion of the right elbow. The dispute was confirmed in a review notice dated 28 November 2023.
By an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (the Commission) on 2 April 2024 the applicant claims weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act) from 7 September 2023 and continuing, and medical and related treatment expenses pursuant to s 60 of the 1987 Act.
The dispute was listed for conciliation/arbitration with liability for the applicant’s injuries, the extent and quantification of incapacity resulting from injury, and past medical and related expenses to be determined.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) the extent and quantification of incapacity resulting from injury during the period 12 September 2023 to date and continuing pursuant to s 37 of the 1987 Act.
The following matters were not in dispute between the parties:
(a) that the applicant sustained injuries to his cervical spine, both shoulders and both elbows on 3 April 2023 in the course of his employment with the respondent;
(b) that the period of the claim for weekly compensation commences on 12 September 2023;
(c) the applicant’s pre-injury average weekly earnings (PIAWE) are agreed to be $2,395;
(d) a general order is sought in relation to reasonably necessary medical and related treatment expenses, and
(e) the applicant’s Application to Admit Late Documents dated 14 May 2024 is admitted by consent.
PROCEDURE BEFORE THE COMMISSION
The parties appeared for conciliation conference and arbitration hearing before the Commission on 22 May 2024. The applicant was present and represented by Mr Bill Carney of counsel instructed by Ms Tavianatos. Mr Fraser Doak of counsel appeared for the respondent instructed by Ms Costello. Ms Vu was present for the insurer.
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.
The applicant was granted leave under Division 4.2 of the Personal Injury Commission Rules 2021 to amend the ARD to include the period of weekly compensation in dispute to date from 12 September 2023.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the ARD and attached documents;
(b) the respondent’s Reply and attached documents, and
(c) the applicant’s Application to Admit Late Documents (AALD) dated 14 May 2024 and attached documents.
Oral evidence
There was no application made to call oral evidence at the hearing.
Applicant’s evidence
The applicant’s evidence is set out in his signed statement dated 19 February 2024.
The applicant says he was a self-employed formwork carpenter working for the respondent at the time of his injury. While stripping and bringing down formwork on 3 April 2023 he lost his balance and fell from a ladder striking both his elbows on timber lying across steel frames. He felt an intense, sharp pain in his elbows and shoulders.[1]
[1] Page 1 of the ARD.
The treatment he describes includes radiology scans, an MRI of his neck, physiotherapy and ultrasounds of both forearms and elbows. He was referred to Dr Vijay Maniam, orthopaedic surgeon, he received CT guided injections into his shoulders and he relies on medication to help with his pain.[2]
[2] Pages 2 and 3 of the ARD.
The applicant states that his ongoing issues include pain, discomfort and restricted movement in his cervical spine and both shoulders, his sleep is disturbed due to pain and he struggles with completing housework or garden maintenance activities.[3]
[3] Page 2 of the ARD.
In relation to his capacity to work the applicant says he stopped work on 11 April 2023 due to the pain in his neck, both shoulders and elbows becoming unbearable and he is presently not working.[4]
[4] Page 1 of the ARD.
Dr Abdelgayoom, the applicant’s general practitioner, has certified the applicant as having no current capacity for any employment as a result of the work related injuries of “bilateral shoulder and elbows pain, neck pain” from 11 April 2023 when the applicant first consulted him in relation to his work injury,[5] up until 7 June 2024 in accordance with the most recent Certificate of Capacity.[6]
[5] Page 144 of the ARD.
[6] Page 5 of the AALDs dated 14 May 2024.
Dr Maniam, treating orthopaedic surgeon, in his report of 21 June 2023 to the insurer notes the applicant was not making the required improvement and appeared to be in moderate pain. He requested an MRI of the cervical spine as an initial plan and states “I will review the MRI of the cervical spine to exclude any radiculopathy and he will be subjected to more concerted treatments through physiotherapy before he is allowed to return to some form of selected work.”[7]
[7] Page 68 of the ARD.
In his report of 8 November 2023 Dr Conrad, general surgeon qualified by the applicant, describes the applicant’s current symptoms as continuing pain in his neck, pain and restriction of movement in both shoulders and both elbows, worse when he is standing, sitting, bending, lifting and reaching above shoulder level.[8]
[8] Page 18 of the ARD.
Dr Conrad then comments in relation to the applicant’s work capability;
“… he would not be able to do full-on work as a self-employed builder. He may be able to do 15-20 hours per week of light work in the building industry in a position where he is able to stand or sit at will, not work at heights, especially not going up and down ladders or working on roofs, and with a lifting limit of 5-10 kg and avoidance of lifting or reaching anything above shoulder levels or heavy repetitive work with either arm. This should be part of a structured rehabilitation program.”[9]
[9] Page 19 of the ARD.
Regarding Assoc Prof Miniter’s report of 10 August 2023, discussed further below, Dr Conrad says “I disagree with Professor Miniter’s statement he is fit to return to work (presumably unrestricted) and prefer my own opinion on restricted duties.”[10]
[10] Page 21 of the ARD.
Respondent’s evidence
In relation to the applicant’s capacity to work the respondent relies on the report of Assoc Prof Miniter, orthopaedic surgeon, of 10 August 2023. The doctor comments that he “could not understand this gentleman’s claims of severe disability such that he could not return to work over the four month period that has elapsed since the alleged injury.”[11]
[11] Page 39 of the Reply.
In the doctor’s view the initial and subsequent investigations did not show any evidence of injury, he believes physiotherapy could safely be discontinued and that the applicant is fit to return to work.[12]
[12] Page 39 of the Reply.
Assoc Prof Miniter concluded his report by stating “[h]e is fit to return to his normal duties at this stage. Fortunately, there is no identifiable pathological feature which would prevent him from doing so.”[13]
[13] Page 41 of the Reply.
Applicant’s submissions
The applicant made oral submissions which have been recorded and form part of the Commission’s record. I do not intend to summarise them in detail.
The applicant referred to the facts of the incident on 3 April 2023 described in the applicant’s statement and in paragraph 13 above.
The applicant first saw his general practitioner Dr Abdelgayoom on 11 April 2023 for treatment and a number of investigations including an X-ray of his cervical spine were then ordered. When the applicant sees a physiotherapist on 6 May 2023 his injuries to the neck, shoulders and elbows are noted.[14]
[14] Page 77 of the Reply
The applicant submits the next significant medical evidence is the report of Dr Maniam, treating specialist, to the insurer of 21 June 2023. Importantly he outlines the investigations, what he found on examination and provides the diagnoses of musculo ligamentous strain of the cervical spine with aggravation of underlying degenerative disease (which the applicant submits was confirmed by the MRI), traumatic subacromial/subdeltoid bursitis of both shoulders (which the applicant submits is confirmed by the ultrasounds), and traumatic synovitis and aggravation of pre-existing extensor and flexor tendinopathy.[15] Dr Maniam found that underlying problems in the neck and shoulders were aggravated by the injury.
[15] Page 68 of the ARD.
In the clinical notes of Dr Abdelgayoom it appears the aggravation continues until the notes end in November of last year, and certainly throughout this period there are complaints of pain and the treatment received by the applicant is recorded, treatment he is still receiving at the time of making his statement.
The applicant submits this evidence then grounds the opinion of Dr Conrad.
Dr Conrad’s opinion is important because he comments on capacity as set out at paragraph 20 above.
The applicant submits that the type of work Dr Conrad proposes limits the applicant to fairly unskilled work on a building site, perhaps operating a boom gate or safety signs or working as a traffic controller, or perhaps undertaking other light retail work outside the building industry.
Dr Conrad’s opinion is in contrast to the evidence of Dr Abdelgayoom who has provided certificates of capacity up until 7 May 2024 that certify the applicant as having no capacity for work.
The gravamen of Assoc Prof Miniter’s report is simply that there is no work injury. The doctor records some comments made by the applicant about being superman but having a fear of pain, and it is unclear what that means.
During examination the doctor says the applicant could make various movements with his hands but when it came to removing his shirt there were restrictions, a reflection on the applicant’s veracity.
Assoc Prof Miniter finds the investigations did not show any pathology related to injury and he found no restriction of movement. However Dr Maniam and Dr Conrad both found an injury had occurred at work resulting in restrictions such as climbing up ladders or working at heights.
The applicant submits that Assoc Prof Miniter has not given due regard to the idea that there may have been an aggravation of pre-existing conditions, and for that reason his opinion is less persuasive than that of the treating surgeon and the applicant’s independent medical expert.
The issue to be determined in the applicant’s submission is whether to accept the general practitioner’s opinion on capacity or that of Dr Conrad. In Dr Abdelgayoom’s opinion the applicant has no capacity for work and in Dr Conrad’s opinion he can work 15 to 20 hours per week.
The appropriate rate for light work is assumed to be $30 per hour so that working 20 hours a week means the applicant may be able to earn $600 per week, and if he works 15 hours a week the applicant may be able to earn $450 per week.
Respondent’s submissions
The respondent made oral submissions which have been recorded and form part of the Commission’s record. I do not intend to summarise them in detail.
The first consideration the respondent submits is whether the applicant sustained a level or degree of injury that resulted in incapacity.
In relation to capacity, the medical evidence is split between Dr Conrad who says there is partial capacity as at November 2023 and Assoc Prof Miniter who found there is no incapacity and the applicant is fit for work. Dr Maniam does not comment on capacity the respondent submits, and there is an inconsistency between Dr Conrad and the general practitioner’s opinions.
The respondent submits that if it is accepted that the applicant has incapacity, Dr Conrad’s opinion should be preferred to that of the general practitioner who has taken a somewhat process-line approach to issuing certificates with no particular reasoning attached, and there is nothing before the Commission in support.
The question is whether the degree of injury is sufficient to result in incapacity and Assoc Prof Miniter found it was not. He found the applicant’s presentation at examination was both florid and catastrophic and there are a number of fairly significant inconsistencies between the claimed restrictions and the doctor’s observations during the examination.
The respondent submits that when one looks at the complaints themselves the mechanism of injury is not clear.
The applicant says he was stripping and bringing down formwork from the top of steel frames standing on a ladder high off the ground when he lost his balance and both elbows struck the timber laying across steel frames and he felt an intense, sharp pain in his elbows and shoulders.
The respondent submits that this description of the injury does not marry with the histories taken by others. Dr Conrad in November 2023 took the history that the applicant lost his balance and his two elbows struck the ends of timbers[16] and the general practitioner’s clinical records say that the applicant “was holding a timber down, ended on both elbows.”[17]
[16] Page 17 of the ARD.
[17] Page 34 of the ARD.
Dr Maniam has perhaps the least consistent version in the respondent’s submission with the applicant standing on a step ladder at 2.7 meters high with timber stacked on end around him and when bringing down the stripped formwork his two elbows struck the ends of timbers.[18]
[18] Pages 66 and 67 of the ARD.
The respondent submits that is very different to the applicant’s account and casts some doubt on the extent to which the applicant actually suffered any sort of physical jarring or blow.
In the respondent’s submission it is notable that at the first examination with the general practitioner on 11 April 2023, about eight days after the date of the injury, there is no complaint made of neck pain. At the next attendance on 14 April 2023 there is no reference whatsoever to symptoms in the alleged body parts, although the respondent acknowledges on 19 April 2023 there is a referral made for X-rays of the cervical spine, shoulders and elbows and the prescription of analgesics.[19]
[19] Page 33 of the ARD.
The respondent submits there is doubt about the mechanism of the injury itself and the extent to which the applicant suffered injury, and this lends credence to Assoc Prof Miniter’s opinion. The doctor found inconsistencies and catastrophic presentation which contrasts to Dr Conrad’s view that there was consistent presentation.
It is open to find Assoc Prof Miniter’s assessment of the applicant’s capacity is correct because on the presentation of the applicant the doctor sets out some of the rather colourful comments made by him that supports that opinion.
The alternative case is based on the difference between the general practitioner and Dr Conrad. The respondent submits that if the Commission finds against it on the primary submission that there is no incapacity, Dr Conrad’s opinion should be preferred. The respondent however submits that the applicant has capacity to work more than 20 hours a week.
As far as what work could be done, the applicant suggests he could earn $600 per week in a number of jobs on a building and construction site and one job suggested is as a traffic controller. The respondent submits however that the applicant is capable of earning considerably more than $600 per week having regard to what traffic controllers are paid, based on the resources available to the Commission.
The applicant made no submissions in reply.
FINDINGS AND REASONS
Did the applicant sustain injuries resulting in incapacity
While accepting the applicant injured his neck, both shoulders and both elbows on 3 April 2023, the respondent’s submission is that the level or degree of injury has not resulted in incapacity.
The weight of medical evidence, being the evidence of Dr Abdelgayoom, Dr Maniam and Dr Conrad, supports the applicant’s case that his injuries are of a sufficient level or degree to have caused incapacity.
Dr Abdelgayoom records on 11 April 2023 “Slipped last Monday, was holding a timber down, ended on both elbows, felt both shoulders moved from their place.”[20]
[20] Page 34 of the ARD.
The respondent submits the lack of reference to the applicant’s neck injury at this consultation with Dr Abdelgayoom on 11 April 2023 presents an inconsistency. His Certificates of Capacity dating from 11 April 2023 however say “Both elbows swollen, Decreased ROM of both elbows and shoulders. Neck pain”.[21]
[21] Page 145 of the ARD.
At the next consultation on 14 April 2023 the respondent notes there is no reference to the injuries. The records indicate the purpose of that examination was in relation to an object that went into the applicant’s eye while at work on 20 March 2023, and that since then his eye was irritated, red, painful with visual acuity diminished. Dr Abdelgayoom referred the applicant to a specialist and prescribed Chlorsig eye drops.[22]
[22] Page 33 of the ARD.
The clinical records on 19 April 2023 refer to X-rays of the neck, both shoulders and elbows with referrals for an MRI of the cervical spine and ultrasounds of both shoulders and elbows, as well as the prescription of analgesics[23] as acknowledged by the respondent.
[23] Page 33 of the ARD.
In relation to the mechanism of injury, the respondent makes a submission that the description of the injury provided by the applicant is not clear and there are inconsistencies with the histories taken by Dr Conrad, Dr Abdelgayoom and Dr Maniam in particular.
The history noted by Assoc Prof Miniter is that the applicant was “stripping some formwork and somehow or other he slipped and had a vertical impaction force applied through both elbows.”[24]
[24] Page 38 of the Reply.
Each history of the mechanism of injury referred to above describes the applicant bringing down formwork when he fell and struck his elbows. The differences are not sufficient to raise any significant doubt about the mechanism of the injury.
The respondent refers to inconsistencies in the applicant‘s presentation to Assoc Prof Miniter. The comments noted by the doctor are; “[h]e presents as a pain focused man of his stated age. ‘I am superman.’ ‘I am tough.’ ‘I can lift 100kgs.’ ‘I have that fear of pain.’ He then told me: ‘doing a push-up it’s like I’m doing suicide.’[sic (emphasis in orginal)]”.
In his statement the applicant says “In my examination with Professor Miniter I stated that ‘I am Superman.’ I meant this in a humorous and joking manner, but Professor Miniter took the phrase seriously. That was not my intention when stating that phrase.”[25]
[25] Page 3 of the ARD.
I agree with the applicant’s submission that it is difficult to know what to make of those recorded comments and I do not propose to draw any particular inferences from them.
Assoc Prof Miniter then says:
“The overall description of this matter had a catastrophic presentation and yet during the process, he used his hands and arms to indicate his various functional incapacities without any obvious restriction in range of motion, with demonstrable fluidity.
When it came to asking him to remove his shirt, he suddenly developed a significant restriction in range of motion and had great difficulty moving any of his joints.”[26]
[26] Page 39 of the Reply.
While there appears to be an inconsistency in the applicant’s presentation during this examination, the applicant submits that the doctor went on to find no restriction of movement on examination and this contrasts with the evidence of Dr Abdlegayoom, Dr Maniam and Dr Conrad.
In Dr Conrad’s opinion “Mr Maamari presented to me a perfectly credible history of his accident and ongoing symptoms. The physical findings that I have found fit in with his description of the injury.”[27]
[27] Page 21 of the ARD.
On the basis of the evidence of Dr Abdelgayoom, treating general practitioner, Dr Maniam, treating specialist, and Dr Conrad, independent medical expert, the applicant has discharged his onus of proving on the balance of probabilities that he sustained injures on 3 April 2023 that resulted in incapacity for employment.
Entitlement to weekly benefits compensation
Having regard to the medical and lay evidence in this matter I am satisfied the applicant is partially incapacitated for work in the period 12 September 2023 to date and continuing.
The applicant’s primary submission is that Dr Abdelgayoom’s opinion that the applicant has no capacity for work during the relevant period should be accepted.
I agree with the respondent’s submission however that the opinion of Dr Abdelgayoom is not supported by the other medical evidence before the Commission. I am unable to accept on the basis of all of the evidence that the applicant has no capacity for work in this period.
The respondent’s primary submission is that Assoc Prof Miniter’s opinion that the applicant is fit to return to work without restriction ought to be accepted. That opinion is not supported by the balance of the medical evidence before the Commission.
I prefer the opinion of Dr Conrad that the applicant has partial incapacity for work in the relevant period for the reasons below.
The applicant’s evidence is that he stopped work on 3 April 2023 and is presently not working.[28] He describes the treatment he has received and his ongoing issues of pain and discomfort and restricted movement of his cervical spine and both shoulders, with sleep disturbance due to pain and difficulty completing housework or garden maintenance.[29] Although he sets out his physical restrictions resulting from his injuries, the applicant does not say he has no capacity for employment.
[28] Page 1 of the ARD.
[29] Page 2 of the ARD.
Dr Maniam on 21 June 2023 refers to his request for an MRI of the cervical spine as an initial plan and on review, if the MRI excludes any radiculopathy, the applicant “will be subjected to more concerted treatments through physiotherapy before he is allowed to return to some form of selected duties.”[30]
[30] Page 68 of the ARD.
Dr Conrad notes in November 2023 that the applicant had further physiotherapy treatment with his last session four weeks earlier.[31]
[31] Page 18 of the ARD.
The evidence of the applicant, Dr Maniam and Dr Conrad supports the conclusion that from 12 September 2023 the applicant has current work capacity.
The applicant is therefore entitled to weekly compensation in accordance with s 33 of the 1987 Act calculated in accordance with s 37(3) of the 1987 Act from 12 September 2023 to date and continuing.
Dr Conrad’s opinion is that the applicant may be able to do 15 to 20 hours per week of light work in the building industry with the restrictions he outlines (referred to in paragraph 20 above). This appears to be a reasonable assessment of Mr Maamari’s work capacity in consideration of all of the evidence, and of the applicant’s age, education, skills and work experience.[32]
[32] Section 32A of the 1987 Act.
There is insufficient evidence before the Commission that the applicant is able to work more than 15 to 20 hours a week and I do not accept the respondent’s submissions in that regard.
The applicant submits that he is able to earn $30 per hour for example as a traffic controller and the respondent submits the hourly rate for a traffic controller is higher.
The average hourly rate for traffic controllers in New South Wales is between $30 and $35.[33]
[33] >
On the basis of current work capacity in Dr Conrad’s opinion of 20 hours per week and taking the midpoint of the average hourly rate for traffic controllers of $32.50, I intend to find the applicant’s current work capacity is at the rate of $650 gross per week. PIAWE is agreed at $2,395 subject to indexation. I therefore intend to make an order for weekly compensation payments as follows;
(a) for the period 12 September 2023 to 30 September 2023 80% of PIAWE of $2,395, or $1,916, less $650, being $1,266 per week;
(b) for the period 1 October 2023 to 31 March 2024 80% of PIAWE indexed at $2,451.76, or $1,961.41, less $650, being $1,311.41 per week, and
(c) for the period 1 April 2024 to date and continuing 80% of PIAWE indexed at $2,495.65, or $1,996.52, less $650, being $1,346.52 per week.
The claim for medical expenses
In accordance with the agreement of the parties there will be an order that the respondent is to pay the applicant’s reasonably necessary medical and related expenses.
SUMMARY
The applicant is entitled to weekly payments of compensation for the period 12 September 2023 to date and continuing pursuant to s 37(3) of the 1987 Act with PIAWE agreed at $2,395 (subject to indexation) as set out in the Certificate of Determination.
The respondent is to pay the applicant’s reasonably necessary medical and related expenses pursuant to s 60 of the 1987 Act.
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