Mua v Corestaff NSW Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mua v Corestaff NSW Pty Ltd [2024] NSWPIC 143
APPLICANT:	Savirio Mua
RESPONDENT:	Corestaff NSW Pty Ltd
MEMBER:	John Turner
DATE OF DECISION:	25 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; accepted injury to right shoulder; disputed injury to lumbar spine; claim for permanent impairment compensation pursuant to section 66; McCarthy v Patrick Stevedores No 1 Pty Limited and Kooragang Cement Pty Ltd v Bates referred to; Held – that the applicant has not proved on the balance of probabilities that he sustained injury to his lumbar spine on 14 April 2022 as alleged; there is an award for the respondent in respect to injury to the lumbar spine on 14 April 2022.
DETERMINATIONS MADE:	The Commission determines: 1. That the applicant has not proved on the balance of probabilities that he sustained injury to his lumbar spine on 14 April 2022 as alleged. 2. There is an award for the respondent in respect to injury to the lumbar spine on 14 April 2022. The Commission orders: 3. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 14 April 2022 – personal injury. (b) Body systems / parts: right upper extremity (shoulder). (c) Method of Assessment: whole person impairment 4. The documents to be reviewed by the Medical Assessor are: a. Application to Resolve a Dispute and attached documents. b. Documents attached to the respondent’s application to admit late documents dated 22 January 2024 with the exception that the following are to be reviewed in respect to history only: (i) reports of Dr Sugeesh Pathirana dated 28 June 2022 and 18 October 2022, and (ii) report of Dr Richard Sekel dated 7 June 2023. c. A copy of this Certificate of Determination.

STATEMENT OF REASONS

BACKGROUND

Mr Savirio Mua, the applicant, was at all relevant times employed by Corestaff NSW Pty Limited, the respondent, to work as a labourer.
The applicant has brought proceedings in the Personal Injury Commission (Commission) in which he alleges that he sustained injury to his right shoulder and lumbar spine on
14 April 2022 due to repetitive work cutting thick steel wires with blunt cutters.
The respondent does not dispute that the applicant sustained injury to his right shoulder. The respondent does however dispute that the applicant sustained injury to his lumbar spine.
The applicant claims compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for impairment of his right upper extremity (shoulder) and lumbar spine.
It is the applicant’s evidence that he was employed by the respondent, a labour hire company, to work as a labourer. That the respondent placed him with Valmont Coatings who produced galvanised steel. That his work duties varied each day depending on the requirements of his supervisors however his duties generally included “dressing” steel and cutting steel wires.
It is the applicant’s evidence that he sustained injury on 14 April 2022 whilst using large two handed wire cutters to cut wires attached to a headframe. It is the applicant’s evidence that the wires varied in size but were up to 3-4cm in diameter and that the wire cutters which he was using were blunt which made it difficult to cut the wires.

ISSUES FOR DETERMINATION

The following issues remain in dispute:
(a)    whether the applicant suffered injury to his lumbar spine arising out of or in the course of his employment with the respondent;
(b)    whether the applicant’s employment was a substantial contributing factor to the alleged injury to the lumbar spine, and
(c)    the degree of any impairment.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
27 February 2024. Mr Luke Morgan, counsel, instructed by Turner Freeman Lawyers, appeared for the applicant, who was present. Mr Tony Baker, counsel, instructed by Rankin Ellison Lawyers, appeared for the respondent. The proceedings were conducted in-person. 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 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; and
(b) Documents attached to the respondent’s application to admit late documents dated 22 January 2024 with the exception that the following are in evidence in respect to history only:
(i)reports of Dr Sugeesh Pathirana dated 28 June 2022 and 18 October 2022, and
(ii)report of Dr Richard Sekel dated 7 June 2023.
The applicant objected to the reports of Dr Pathirana dated 28 June 2022 and
18 October 2022, Dr Richard Sekel dated 7 June 2023 and Dr Robert Breit dated
13 September 2023 all being admitted into evidence. The applicant submitted that pursuant to Regulation 44 of the Workers Compensation Regulation 2016 the respondent was entitled to have only one forensic medical report admitted into evidence in the proceedings. The respondent elected to rely on the report of Dr Robert Breit dated 13 September 2023 but sort to have the reports of Dr Pathirana and Dr Sekel admitted for history only. The applicant objected to the reports of Dr Pathirana and Dr Sekel being admitted in respect to history only on the basis that the admission of the reports even in respect to that limited purpose offended Regulation 44.
I admitted the reports of Dr Pathirana and Dr Sekel into evidence for the histories recorded in them only but not for their opinions or conclusions. I advised that I would give reasons for my decision as part of this determination.
In McCarthy v Patrick Stevedores No 1 Pty Limited [2010] NSWWCCPD 96, Roche DP considered whether the question of whether reports which were not admissible as forensic medical reports could be admitted for the limited purpose of relying on the histories recorded in the reports. Roche DP concluded that the admission of forensic reports for such a limited purpose was permissible if the material was relevant to an issue in dispute and the admission of the reports as witness statements do not involve any unfairness to the opposing party.
The issue in dispute in this matter is a factual issue as to whether the applicant sustained injury to his lumbar spine on 14 April 2022. The applicant has made two statements which are in evidence. In neither statement does he directly state that he sustained injury to his lumbar spine. The contemporaneous records as well as the histories taken by third parties are therefore particularly relevant to the factual issue in dispute. There is no prejudice or unfairness to the applicant caused by the admission of the reports for this limited purpose as the reports were directly referred to in the notice given to the applicant pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 dated
27 November 2023 as well as copies being attached to that notice. The applicant was therefore aware of the reports and their contents and had the opportunity to put on any evidence it wished in response to the reports. Also it was not until the arbitration conference that the respondent elected to rely on the forensic report of Dr Breit, the applicant was therefore unaware when preparing its case as to which of the reports the respondent was going to rely upon.

Oral evidence

Neither party sought leave to adduce oral evidence.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties.

FINDINGS AND REASONS

Consideration and findings

The applicant alleges that he sustained injury to his right shoulder and lumbar spine on
14 April 2022 due to repetitive work cutting thick steel wire with blunt cutters.
The respondent does not dispute that the applicant sustained injury to his right shoulder. The respondent does dispute that the applicant sustained injury to his lumbar spine.

The applicant bears the onus of proving injury.
Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
I am of the view and find that the applicant has not discharged his onus of proof. The applicant has not proved on the balance of probabilities that he sustained injury to his lumbar spine on 14 April 2022 as alleged for the following reasons.

There are in evidence two statements by the applicant made on 24 May 2022 and
10 June 2022. In neither statement does the applicant give any evidence that he sustained any injury to his lumbar spine on 14 April 2022 as alleged.
The applicant in his statement made on 24 May 2022 states that he felt a sharp pain in his right shoulder whilst using cutters on 14 April 2022 and that he reported the injury to Kieran, his supervisor, who took him to his office where he made a statement following which Kieran sent him home and told him to see a doctor. The applicant states that as a result of the injury he felt pain when he lifted his arm. At no point in the statement does the applicant mention having sustained injury to his lower back.
It is the applicant’s evidence in his statement made on 10 June 2022 that he strained both his arms whilst cutting wires on 14 April 2022. That he experienced a sharp pain in both shoulders, but primarily his right shoulder and that over time the pain in his shoulders radiated down his arms to his thumbs. That he swapped the wire cutters for a sharper pair and kept working and that when he took his break, he reported the injury to his supervisor, Kieran. That Kieran took him into his office and immediately took a statement from him on his computer.
It is the applicant’s evidence that he then attended Gold Standard Physiotherapy in Blacktown and the following day he attended on his general practitioner (GP), Dr Akram Moussad’s practice.
As with his statement made on 24 May 2022 the applicant at no point in his statement made on 10 June 2022 mentions having sustained any injury to his lumbar spine on 14 April 2022.
On 14 April 2022 the applicant attended on Mr Keith Leong, physiotherapist, at Gold Standard Physiotherapy and Sports Medicine. On 14 April 2022 Mr Leong reported on the applicant’s consultation “To whom it may concern”. The report only refers to the shoulders with no mention of the applicant’s lumbar spine or lower back.
On 16 April 2022 the applicant attended on Dr Moussad. The clinical record of the consultation records that the applicant had experienced right shoulder pain on 14 April 2022 whilst cutting steel wires at work. Dr Moussad referred the applicant for an ultrasound scan of his right shoulder. The clinical record of the consultation contains no mention of the applicant’s lower back.
On 19 April 2022 a Sonic HealthPlus workers compensation registration form was completed which records that the applicant had sustained a shoulder injury on 14 April 2022. The registration form contains no mention of any injury to the lumbar spine.
On 19 April 2022 the applicant attended on Dr Milad Youkhana of Sonic HealthPlus Guildford. The clinical record of the consultation records that the applicant had suffered a new injury in the form of a right shoulder strain on 14 April 2022. The clinical record contains no reference to the applicant’s back or lower back.
On 19 April 2022 Dr Youkhana provided the applicant with a certificate of capacity which diagnosed the work related injury as right shoulder strain, rotator cuff tendinosis and mild sub acromial bursitis. The certificate of capacity makes no reference to any injury having been sustained to the back or lumbar spine.
On 19 April 2022 Dr Youkhana also referred the applicant to Gold Standard Physiotherapy and Sports Medicine for opinion and management in respect to a right shoulder strain. The referral contains no mention of any injury to the lumbar spine.
The applicant attended on Dr Moussad on 23 April 2022 complaining of right shoulder pain at which time the results of the right shoulder Ultrasound scan were given to the applicant.
On 23 April 2022 Dr Moussad referred the applicant to Active West Physiotherapy Centre for an opinion and management of a right shoulder injury. Dr Moussad also issued a certificate of capacity for injury on 14 April 2022 which only refers to a shoulder injury.
On 23 April 2022 Dr Moussad also referred the applicant to Dr Warren Kuo, orthopaedic surgeon, for opinion and management of his shoulder condition.
The clinical records of Dr Moussad record that the applicant again attended on Dr Moussad complaining of right shoulder pain on 26 April 2022, 27 April 2022, 28 April 2022 and
2 May 2022.
On 3 May 2022 the applicant attended on Dr George Hanna. The clinical record of the consultation records a slightly different history of injury with the wire cutters which the applicant was using having suddenly sprung back causing injury to both shoulders, right worse than left. Dr Hanna’s clinical record also noted some numbness in the hands and questioned whether the applicant may have also sustained injury to his cervical spine. The clinical record contains no mention of any injury to the lower back or lumbar spine.
The clinical records of Dr Moussad record that the applicant again attended on Dr Moussad on 4 May 2022, 9 May 2022, 10 May 2022, 13 May 2022, 14 May 2022 and 16 May 2022 complaining of right shoulder pain.
On 13 May 2022 Dr Moussad issued a certificate of capacity for the injury sustained on
14 April 2022 which again only refers to shoulder injury with no mention of any injury to the lumbar spine or lower back.
On 10 May 2022 the applicant completed a Workers Injury Claim Form in which he records that on 14 April 2022 whilst “cutting a big wire” he experienced a sudden pain in his shoulder and chest. In respect to his injury condition and which body parts were affected the applicant recorded:
“The right shoulder is still painning [sic] but comes to my chest at the moment my finger are numb and my back is pain”
This is the first mention in the evidence of the applicant’s back. The applicant however does not identify which part of his back is painful or provide any information as to the cause of the back pain.
On 17 May 2022 Dr Youkhana reported to Allianz a diagnosis of right shoulder strain, rotator cuff tendinosis as a result of the alleged injury sustained at work on 14 April 2022. The report contains no mention of the applicant having sustained any injury to his lumbar spine.
The clinical records of Dr Moussad record that the applicant attended on the doctor on
18 May 2022, 19 May 2022 and 23 May 2022 complaining of right shoulder pain.
On 24 May 2022 the applicant attended on Dr Moussad complaining of bilateral shoulder symptoms. The clinical record of the attendance records that Dr Moussad discussed the mechanism of injury with the applicant and again there is no mention of any injury to the lower back or lumbar spine.
On 25 May 2022 Dr Moussad noted an exacerbation of right shoulder pain.
On 27 May 2022 the applicant attended on Dr Moussad with the clinical record of the attendance recording that the applicant complained of bilateral shoulder pain, right worse than left.
On 27 May 2022 the applicant also attended on Dr Hanna at which time he complained of right shoulder pain and ongoing bilateral hand and finger numbness which Dr Hanna thought could possibly be related to the neck. The applicant again attended on Dr Hanna on
3 June 2022 complaining right shoulder pain, some left shoulder pain, neck pain, bilateral hand and finger pain and numbness. Once more there is no record of any complaint of lower back pain or injury to the lower back.
On 27 May 2022 Dr Moussad issued a certificate of capacity which only refers to shoulder injury having been sustained on 14 April 2022.
The clinical records of Dr Moussad record that the applicant again complained to the doctor of shoulder pain on 30 May 2022 and 4 June 2022.
On 10 June 2022 the applicant attended on Dr Hanna complaining of ongoing bilateral shoulder pain as well as ongoing bilateral hand pain with numbness. Dr Hanna recorded in his clinical record of the consultation that the applicant reiterated the circumstances around the workplace injury which involved the use of large wire cutters on 14 April 2022 and afterwards experiencing bilateral shoulder and hand pain with numbness. The doctor again recorded no mention of any injury or complaints in respect to the applicant’s lumbar spine which is particularly significant given that the applicant had reiterated the circumstances surrounding his injury on 14 April 2022.
On 14 June 2022 the applicant again attended on Dr Moussad complaining of bilateral shoulder pain.
On 17 June 2022 the applicant attended on Dr Moussad. The clinical record of Dr Moussad for the consultation records that the applicant complained of bilateral shoulder pain and for the first time Dr Moussad records that the applicant had complained of “LBP” which I interpret as an abbreviation for lower back pain. The clinical note of the consultation however records no history as to the development or cause of the lower back pain.
The applicant also attended on Dr Hanna on 17 June 2022. The clinical record of the consultation records that the applicant complained of ongoing bilateral hand pain with numbness, ongoing bilateral shoulder pain, right shoulder worse than left, as well as some pain in the lower region of the cervical spine.
On 24 June 2022 the applicant attended on Dr Hanna complaining of ongoing bilateral shoulder pain as well as bilateral hand pain and numbness. Dr Hanna also recorded the following in his clinical record of the consultation: “Ongoing lumbar spine pain with radiculopathy into both lower limbs.” The doctor records no history in respect to the cause or onset of the lumbar spine pain.
The clinical records of Dr Moussad record that the applicant on 24 June 2022, 29 June 2022, 11 July 2022 and 15 July 2022 complained to Dr Moussad of bilateral shoulder pain as well as lower back pain.
On 1 July 2022 the applicant attended on Dr Hanna relevantly complaining of ongoing lumbar spine pain which was worse with flexion and walking. The doctor’s clinical record records no history as to the onset or cause of the lumbar spine pain.
On 15 July 2022 the applicant attended on Dr Hanna at which time Dr Hanna recorded in his clinical record of the consultation that the applicant “has now complained a few times about bilateral chest pain in the pectoralis major and medius regions”. Dr Hanna contemplated that the applicant may have sustained bilateral muscular strains to the pectoralis muscles during the work injury or it may be a consequential injury due to compensation as his shoulders and hands had been weakened as a result of the injury and the pectoralis muscle may have been overworking to compensate for this weakness.
On 25 October 2022 Dr Moussad referred the applicant to the Active West Physiotherapy Centre for management of bilateral shoulder injuries. On 22 November 2022 the applicant attended on Active West Physiotherapy. The clinical record of the consultation records a history of the applicant having experienced sudden pain in his shoulders when using large, blunt, wire cutters. The clinical note records complaints in respect to both shoulders but does not record any complaint in respect to the applicant’s lower back.

On 22 November 2022 Dr Moussad referred the applicant to Dr Terence Moopanar for opinion and management of a right shoulder injury.
All the certificates of capacity issued by Dr Moussad and Dr Youkhana commencing from
19 April 2022 and continuing at least to 17 January 2023 for injury sustained on
14 April 2022 refer to shoulder injury without any mention of any injury to the lumbar spine or lower back.
The applicant has therefore given no direct evidence in his statements as to having sustained injury to his lumbar spine on 14 April 2022. Following 14 April 2022 the applicant has attended multiple consultations with multiple health care providers including Dr Hanna, Dr Moussad, Dr Youkhana, the physiotherapist Mr Leong and Active West Physiotherapy without there being any recorded complaint in respect to the applicant’s lower back until
17 June 2022. Once the applicant does complain of lower back pain there is still no record from the applicant’s treating doctors of any report by the applicant of him having sustained injury to his lumbar spine on 14 April 2022.
Mr Morgan submitted on behalf of the applicant that the applicant’s treating doctors had simply overlooked the injury to the lumbar spine whilst focusing on the shoulder injury and that there may well have also been language barrier issues. I do not accept this submission. Post 14 April 2022 the applicant, as previously noted, has been examined and treated by multiple doctors and physiotherapists and none have recorded a history of the applicant having sustained injury to his lumbar spine on 14 April 2022. The doctors were however able to take relatively consistent histories as to how the shoulder injury was sustained on
14 April 2022 and also record the applicant’s complaints which extended beyond the right shoulder to include the applicant’s left shoulder, neck, hands and fingers. In my view given the number of attendances on different treating doctors and physiotherapists it is not credible that the applicant would not have complained of an injury to his lower back if one had been sustained on 14 April 2022 and that it would not have been reported in the clinical records.
In support of his claim the applicant has served a forensic report of the orthopaedic surgeon, Dr Gerhr, dated 26 July 2023. Dr Gehr records that the applicant reported that his lower lumbar spine pain developed two months after the subject work incident on 14 April 2022. This history is consistent with the first recorded complaint of lower back symptoms occurring in the clinical record of Dr Moussad of 17 June 2022. This is also consistent with the lack of any mention of any lower back injury in the applicant’s statements which were completed on 24 May 2022 and 10 June 2022. The history taken by Dr Gehr of the applicant’s lower back symptoms commencing some months after 14 April 2022 is also consistent with the history recorded by Dr Breit who examined the applicant on behalf of the respondent. Dr Breit took a history from the applicant that the back injury commenced three months after the events of 14 April 2022.
For the above reasons I accept the history taken by Dr Gehr that the applicant’s lower back symptoms did not commence until approximately two months after the events of
14 April 2022.
I do not however accept the opinion of Dr Gehr that the applicant sustained injury to his lumbar spine on 14 April 2022. Dr Gehr provides no reasons for his opinion. Significantly
Dr Gehr takes no history as to how the alleged injury to the lumbar spine was sustained and how he has come to the conclusion that an injury was sustained to the lumbar spine when the applicant has reported to the doctor that his lower back symptoms did not commence until two months after 14 April 2022.
I prefer the opinion as to causation of Dr Breit, orthopaedic surgeon, who provided a forensic report to the respondent. Dr Breit, noting the history that the applicant’s lumbar spine symptoms commenced months after 14 April 2022, is of the opinion that there is no connection between the work incident on 14 April 2022 and any back condition. Mr Morgan submitted on behalf of the applicant that the opinion of Dr Breit as to causation is a mere ipse dixit. I do not accept that submission. Dr Breit has relied on the lack of any symptoms as an indication that no injury was sustained.
Whilst the applicant did on 10 May 2022 record in a Workers Injury Claim Form that: “The right shoulder is still painning [sic] but comes to my chest at the moment my finger are numb and my back is pain”. The applicant does not record which part of his back was painful nor the cause of the pain. There is no indication as to whether the pain was located in the lower, middle or upper back or whether the pain was located over the spine or to either side of the spine, or whether there was an injury to the back, or the pain was radiating from somewhere else such as the shoulder.
The applicant’s complaints are not limited to lower back pain with Dr Hanna on 17 June 2022 recording that the applicant complained of pain in the lower region of the cervical spine whilst Dr Sugeesh Pathirana, a consultant physician in occupational and environmental medicine who examined the applicant and reported to the respondent on 28 June 2022 recorded that the applicant complained of upper back pain between the shoulder blades and on examination the doctor noted that the applicant was tender over the thoracic spine at T5-T12 paraspinal muscles on both sides.
I am unable to conclude on the balance of probabilities that the applicant is referring to pain in his lumbar spine or lower back when he completes the Workers Injury Claim Form on
10 May 2022. There is no evidence in the contemporaneous medical records or the applicant’s statements that he was suffering from pain in his lumbar spine at the time. It is also inconsistent with the history taken by Dr Gehr, which I have previously accepted, that the applicant’s lower back pain commenced two months after the events of 14 April 2022.
For the above reasons I am of the view and find that the applicant has not discharged his onus of proof. The applicant has not proved on the balance of probabilities that he sustained injury to his lumbar spine on 14 April 2022 as alleged.
As there is no dispute that the applicant did sustain injury to his right shoulder on
14 April 2022 I will refer the right upper extremity (shoulder) to the President for referral to a Medical Assessor for impairment assessment.

[2024] NSWPIC 143

25 March 2024