Nyarko v MC Civil Pty Ltd t/as Mocon Civil (deregistered) - [2021] NSWPIC 82

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nyarko v MC Civil Pty Ltd t/as Mocon Civil (deregistered) [2021] NSWPIC 82
APPLICANT:	John Nyarko
RESPONDENT:	MC Civil Pty Ltd t/as Mocon Civil (deregistered)
MEMBER:	Ms Kerry Haddock
DATE OF DECISION:	16 April 2021
CATCHWORDS:	WORKERS COMPENSATION- Accepted claim for injury to right ankle and foot; claim to have also sustained injury to neck, back, right shoulder, right hand, left wrist and left hand; claim for permanent impairment compensation pursuant to section 66 of the 1987 Act in respect of 13% whole person impairment as a result of injury to cervical spine, right upper extremity and right lower extremity; claim for general order for medical expenses pursuant to section 60 of the 1987 Act; lack of contemporaneous medical evidence, claimed to be due to two general practitioners ignoring the applicant’s complaints; Davis v Council of the City of Wagga Wagga [2004] NSWCA34 and Nguyen v Cosmopolitan Homes [2008] NSWCA 246 considered; Held- no sense of actual persuasion that the applicant sustained injuries other than to his right ankle and foot; award for the respondent with respect to the claim for injury to the neck, back, right shoulder, right hand, left wrist and left hand; award for applicant for medical expenses with respect to injury to right ankle and foot; assessment of whole person impairment with respect to injury to right lower extremity is not greater than 10%; Medical dispute may not be referred to Medical Assessor.
DETERMINATIONS MADE:	Declaration The Commission declares, pursuant to section 162(1) of the Workers Compensation Act 1987 that the respondent entered into a contract with the Nominal Insurer in respect of its liability under this Act to the applicant; and the respondent, being a corporation, has ceased to exist. The Commission determines: 1. That there is an award for the respondent in respect of the claim for injury to the neck; back; right shoulder; right hand; left wrist; and left hand on 27 June 2011. 2. That the respondent is to pay, pursuant to section 60 of the Workers Compensation Act 1987 and subject to section 59A of the Workers Compensation Act 1987, medical and related expenses with respect to the injury to the applicant’s right ankle and foot on 27 June 2011. 3. That the applicant does not have permanent impairment of greater than 10% as a result of injury to his right lower extremity (right ankle and foot) and the medical dispute may not be referred to a Medical Assessor.

STATEMENT OF REASONS

BACKGROUND

The applicant, John Nyarko (Mr Nyarko), sustained injuries to his right ankle and foot on 27 June 2011, while employed by MC Civil Pty Ltd t/as Mocon Civil (deregistered) (the respondent), when a door slid and fell on his foot. He also claims to have sustained injuries to his neck; back; right shoulder; right hand; left wrist; and left hand as a result of this incident.
Liability has been accepted for the injuries to the applicant’s right ankle and foot and compensation has been paid.
The applicant made a claim for permanent impairment compensation on 27 September 2012, although that letter of claim is not in evidence. The claim was made only in respect of injury to his right ankle. He claimed to have 4% whole person impairment (WPI) as a result of injury to his right ankle on 27 June 2011.
On 24 October 2012, the respondent’s then workers’ compensation insurer, QBE Workers Compensation (NSW) Limited (QBE) issued the applicant with a notice pursuant to section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). QBE disputed liability for the claim, pursuant to section 66(1) of the Workers Compensation Act 1987 (the 1987 Act) because the applicant’s assessment of WPI was not greater than 10%.
The applicant made a further claim for WPI on 5 February 2017. He claimed the sum of $22,000 in respect of 15% WPI as a result of injuries to his cervical spine; right shoulder; right ankle; and activities of daily living. The claim was made in respect of injuries on about 11 June 2011 to the right wrist and hand; and on about 27 June 2011 in respect of injuries to the back, neck, right ankle, right foot, right wrist, right hand, anxiety and depression and aggravation of pre-existing left wrist and left hand injuries.
The applicant also claimed Medicare charge of $5,159.40 and domestic assistance of six hours per week.
On 26 April 2017, QBE issued the applicant with further section 74 notice. It disputed that he had sustained injury to his cervical spine, lumbar spine and bilateral shoulders and wrists on 26 July 2011 [sic]. QBE also disputed that the applicant’s employment was a substantial contributing factor to any injury to his cervical spine, lumbar spine, shoulders or wrists; that he was entitled to medical treatment for those alleged injuries; and that he had sustained any permanent impairment as a result of those alleged injuries. QBE conceded that the applicant had sustained injury to his right foot/ankle but disputed his claim for permanent impairment as the injury had not resulted in WPI that was greater than 10%.
The applicant made a further claim for WPI on 28 December 2018. He claimed the sum of $25,300 in respect of 17% WPI as a result of injuries on or about 11 June 2011 to his right wrist, shoulder and hand; and on or about 27 June 2011 to his back, neck, right ankle, right foot, right wrist, right hand, aggravation of pre-existing left wrist and left hand injury and psychological sequelae. The applicant again claimed Medicare charge of $5,159.40.
On 13 June 2019, GIO, which had assumed management of the claims, issued the applicant with a notice pursuant to section 78 of the 1998 Act. GIO disputed that the applicant was able to combine assessments of WPI in respect of injuries he had sustained on 11 June 2011 and 27 June 2011.
GIO disputed that the applicant had sustained injury to his right shoulder on 11 June 2011; and that employment was a substantial contributing factor to such injury. It also disputed that he had sustained injuries to his lumbar spine; cervical spine; right wrist; right hand; anxiety and depression; and aggravation of his left wrist injury on 27 June 2011, and that employment was a substantial contributing factor to such injuries.

GIO also disputed that the applicant had sustained “consequential injuries” to his cervical spine, lumbar spine, left or right hand, wrist or shoulders or anxiety and depression as a result of injuries on 11 June 2011 or 27 June 2011. It once again disputed that the applicant’s injuries had resulted in WPI that was greater than 10%. GIO accepted that the applicant had sustained injury to his right wrist and hand on 11 June 2011; and to his right ankle and foot on 27 June 2011.
The applicant brought previous proceedings in Matter Number 5134 of 2017. They were discontinued by consent on 21 December 2017.
On 18 August 2020, the applicant made a claim for medical expenses of $14,530.35, including Medicare charge.
On 21 September 2020, GIO sent an email to the applicant’s solicitors. It advised that it was unable to pay Medicare until the applicant was assessed with WPI in excess of 10%. It relied on section 59A(1) of the 1987 Act, stating that the expiry period would be 31 December 2014. GIO advised that it would reimburse the applicant for reasonably incurred and verified medical and travel expenses to 31 December 2014 only.
The applicant lodged an Application to Resolve a Dispute (the Application) on 11 January 2021.
The applicant claimed to have sustained injury on or about 11 June 2011 to his arm, right wrist and hand; and on or about 27 June 2011 to his neck, back, right shoulder, right wrist, right hand, right ankle, right foot and an aggravation of a pre-existing injury to his left wrist and left hand. He also claimed that the nature and conditions of his employment had caused injuries to his lumbar spine; cervical spine; right lower extremity (ankle); right lower extremity (foot); right upper extremity (shoulder); right upper extremity (hand); left upper extremity (wrist); left upper extremity (hand); and psychological sequelae. It was also claimed that the injury on 27 June 2011 caused the aggravation, acceleration, exacerbation or deterioration of a disease.
The Application claimed weekly benefits; past medical expenses of $13,563.42; and $25,300 in respect of 17% WPI as a result of injury on 27 June 2011 to the applicant’s cervical spine; right upper extremity; right lower extremity; and left upper extremity.
The respondent lodged its Reply on 2 February 2021.
The respondent has been deregistered and a declaration pursuant to section 162 (1) of the 1987 Act is required.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) whether the applicant sustained injury to his neck; back; right shoulder; right hand; left wrist; and left hand on 27 June 2011, and
(b) whether the applicant is entitled to payment of medical expenses with respect to injuries other than those to his right ankle and foot on 27 June 2011.

PROCEDURE BEFORE THE COMMISSION

At the telephone conference held on 8 February 2021, the applicant amended the Application to delete the claim for weekly benefits; and to amend the claim for injury on 11 June 2011 to delete the word “arm” and allege injury to the right shoulder, wrist and hand. The applicant confirmed he made no claim for injury to the left shoulder.
The matter was listed for conciliation/hearing on 18 March 2021. Mr Dewashish Adhikary of counsel, instructed by Mr Gabriel Hernandez, appeared for the applicant, who was present. Mr Greg Young of counsel instructed by Mr Andrew Murphy, appeared for the respondent. Mr Desmond Anim, interpreter in the Twi language, also attended.
The Application was amended to discontinue the claim in respect of the nature and conditions of the applicant’s employment and the claim for psychological sequelae. The applicant also discontinued the claim for injury on 27 June 2011 to his right wrist; and the claim for aggravation, acceleration, exacerbation or deterioration of a disease. The Application was also amended to delete the claim for injury on 11 June 2011.
The applicant’s claim is therefore one for 13% WPI as a result of injury on 27 June 2011 to his cervical spine; right upper extremity (right shoulder); and right lower extremity (right ankle and foot); and a claim for a general order for medical expenses, pursuant to section 60 of the 1987 Act, in respect of the pleaded injuries.
The respondent concedes that the applicant sustained injury to his right ankle and foot on 27 June 2011. It disputes liability for all other injuries alleged to have occurred on that date. It therefore disputes the claim for medical treatment for those injuries.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) The Application and attached documents;
(b) Reply and attached documents, and

(c) Application to Admit Late Documents filed by the applicant and dated 10 March 2021 and attachments, admitted by consent. with the exception of the Discharge Summary of Canterbury Hospital dated 9 February 2020, which was withdrawn.

Oral evidence

There was no application by either party to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, John Nyarko

Mr Nyarko’s statement is dated 10 November 2020.
The applicant stated that he injured his left wrist in 1994. He underwent left wrist effusion and was under the care of Dr Damian Ryan. He was off work for approximately three to four years but was able to return to heavy labouring work. He had further investigations of his left wrist in 2010.
The applicant commenced work for the respondent as an oxy-cutter and demolition labourer on or about 2 June 2011. He has provided evidence about the injury on 11 June 2011, which is no longer relevant.
The applicant stated that on or about 27 June 2011, and during the course of his employment, he sustained injury to his neck, back, right shoulder, right wrist, right hand, right ankle, right foot, and an aggravation of a pre-existing injury to his left wrist and left hand.
The applicant stated that he was removing hinges from a door with a sledgehammer. Once he removed the bottom hinge, the door, which weighed approximately 120 kgs, slid and fell on top of him, causing him to awkwardly fall backwards. His natural instinct was to try to use both arms to protect himself from the weight of the door. The first and most obvious impact was to his right foot and ankle.
The applicant pushed himself to continue working as close as possible to the end of his shift. He had pain to all the areas he has mentioned, but the worst pain was to his foot and ankle. When he returned home, he noticed his right ankle was swollen. He attended Royal Prince Alfred Hospital (RPA), where he was diagnosed with a ligament injury and discharged with crutches. He was unable to work. He had pain to all the areas he has mentioned, but did not pay much attention, as he thought he would recover.
The applicant started limping because of his right ankle injury, which caused him to put his weight on his left leg. This eventually caused him significant lower back pain. His other pain also did not recover, so he complained to his GP, Dr Naomi [sic: Sara] Guirgis. He felt like he was being ignored, as she kept concentrating on his ankle injury and did not recommend any radiology investigations to his other body areas.
The applicant saw Dr Carl Allen at Newtown Medical Practice on 29 June 2011 but came under the care of Dr Sara Guirgis from 30 June 2011 to 12 June 2012. He decided to switch doctors on 13 June 2012. He started seeing Dr Naomi Ginges at Glebe Family Medical Practice, because he felt Dr Guirgis was ignoring his pain complaints. He complained of pain to his right ankle, left wrist, right wrist, right shoulder, neck, lower back and depression.
Dr Guirgis ignored the applicant’s complaints and concentrated on the pain to his right ankle, as this was causing the most pain. When he began seeing Dr Ginges, as the WorkCover medical certificates only mentioned the injury to his right ankle, she also only concentrated on that pain.
Dr Ginges finally started paying attention to the applicant’s complaints with respect to pain to his left wrist, right shoulder, lower back and depression. He felt that his complaints with respect to neck pain were still being ignored.
The applicant referred to investigations of his right shoulder in November and December 2012. He had surgery to his left wrist on 6 March 2013. He was admitted to RPA for right hand pain on 28 June 2013.
The applicant began seeing Dr Michael Tam at Glebe Family Medical Practice on 15 August 2013. He was referred for investigations of his cervical spine.
On 1 August 2014, the applicant began seeing Dr Jean Jenkins at Glebe Family Medical Practice. She referred him for investigations of his lower back. On 3 August 2015 he underwent a whole body scan.
The applicant still suffered pain to his neck, lower back, right shoulder, right wrist, right hand, left wrist, left hand, right ankle and right foot. He also suffered from depression due to the pain.
The applicant’s statement then referred to his work capacity. Given that he has discontinued his claim for weekly benefits, that evidence is largely irrelevant. He again stated that Dr Ginges simply ignored his complaints of injuries other than his right ankle injury.
The applicant referred to the insurer’s section 74 notice dated 26 April 2017. He stated that “it is not my fault” that his GPs did not record his multiple complaints to them and delayed in ordering investigations. He explained that his symptoms were related to the injury on 27 June 2011. They “just did not listen to me” and concentrated on his right foot, as it was causing him the most pain at the time of the incident. He also explained to them that the injuries to his right wrist and hand were aggravated as a result of the workplace incident on 11 June 2011 and had not recovered before the incident on 27 June 2011. His complaints were ignored.
The applicant has also provided commentary on the dispute as to WPI; weekly benefits; and medical expenses which it is not necessary to consider.
The applicant made an earlier statement on 15 September 2017, which is virtually identical.
The Application includes undated sketches by the applicant that show what he claims to be the mechanism of the injury. He is depicted attempting to keep the door from falling, with both arms outstretched; and lying beside the door, with his right foot under it.

Medical evidence
Royal Prince Alfred Hospital

The applicant presented to the hospital on 16 November 1994, with a history of a fall of approximately 2.5 metres with a ladder he was loosening away from a pipe. He had injured his left wrist and there was pain in the left wrist and a painful right foot/thigh.
There was a past history of chronic neck and back pain. The applicant “says no change today, always sl (?slightly) tender to touch in lower L/S and C/S”. He was due to see the physio. There was also a history of a motor vehicle accident four years before, with lumbosacral and neck pain. Investigations included x-rays of the cervical spine and lumbar spine.
The hospital records note that on 27 June 2011, the applicant had sustained injury to his right foot after striking the top of his foot with a door. He was sent for x-ray that revealed no fracture. He was being discharged with crutches. There is no history of any other injury or any other investigation.
On 12 November 2012, a physiotherapy assessment form recorded that the applicant’s main problem was left shoulder pain. There was a four-year history of back and right shoulder pain. It was worse after the left wrist injury as there was increased use of the right upper limb. There was no history of injury to the right shoulder.
On 12 September 2014, Dr Jenkins referred the applicant for physiotherapy for his lumbar spinal problems, which had been suggested by Dr Srivalingam.
On 2 October 2014, physiotherapy records note that the applicant presented with “LBP (low back pain) acute on chronic”. There was a history of injuries, but no reference to the applicant having injured his low back on 27 June 2011.

On 16 April 2015, Dr Sheetal Shah of the Outpatients Department (OPD) Pain Clinic reported to Dr Jenkins that the applicant had multiple pain areas – left wrist; right ankle; right shoulder; bilateral knees; and low back. He had stopped working four years ago due to wrist pain as well as pain from his ankle and shoulder.

On 20 May 2015, physiotherapist Mr Graeme Campbell of the OPD Pain Clinic recorded that the applicant had presented with low back pain; bilateral wrist pain; right foot pain; and pain in both shoulders.
Mr Campbell recorded a history that the time of the onset of low back pain was after the applicant injured his left wrist in 1994, after which he underwent six surgeries. Whilst stripping a door, he slipped and suffered a right ankle ligament injury and aggravated his wrist.

On 13 July 2015, Dr Huw Davie, psychiatry registrar, recorded that the applicant had multiple work-related injuries, starting with a wrist fracture following a fall in 1994. He later developed back pain, could not work and was managed on the Disability Support Pension for pain. He “now has ankle pain”.

The applicant believed that if he had an MRI of his back, a cause for his pain would be found and it could be fixed so he could return to work. He was upset with his insurers and did not want to get any scans unless they paid for them.
On 28 August 2017, physiotherapy notes record that the applicant was complaining of LBP, which had been ongoing for a number of years, but had been worsening. He had had two cortisone injections in the last two months. Physiotherapy continued into September 2017.
Dr Matthew Holton, psychiatrist, reported to Dr Jenkins on 29 August 2017 that the applicant had a flare of his back pain, possibly contributed to by a car accident and possibly by the colder weather. The applicant had received injections to his back and physiotherapy, which had been helpful.

Newtown Medical Practice

The applicant consulted Dr Carl Allen on 29 June 2011, with “injured right foot”. He planned to see Dr Sara (Guirgis) for a WorkCover certificate.
On 30 June 2011, Dr Guirgis recorded that the applicant had an accident at work, working as a labourer. The date of the accident was recorded as 27 June 2011. The applicant was “taking a big door off smashing it the base of the door came off and hit him on his right foot”. I observe that this differs from the mechanism of injury depicted in the applicant’s sketches. The reason for contact was “right pain – ankle”.
The applicant again consulted Dr Guirgis on 4 July 2011, 6 July 2011 and 12 July 2011. She sent him for x-ray and ultrasound of his right ankle on 4 July 2011 and for CAT scan on 6 July 2011.
The applicant saw Dr Robert Spanswick on 20 July 2011. He did not record any details of the consultation but issued a WorkCover certificate.
Dr Allen recorded on 27 July 2011 that the applicant had an injured right ankle.
On 9 August 2011, Dr Guirgis recorded that the applicant had an injury to his right ankle. He was sent for bone scan and CAT scan and issued with a WorkCover certificate.
The applicant continued to consult either Dr Guirgis or Dr Spanswick. On 7 September 2011, Dr Guirgis referred him to Dr Medhat Guirgis.
On 27 September 2011, Dr Guirgis recorded that MRI of the applicant’s right ankle showed partial injury of the talofibular ligament. There was a radiocarpal fusion of the left wrist. She recorded “Rheumatology”.
On 19 October 2011, Dr Guirgis noted that the applicant had had a stiff left wrist since 1994 and “referral to Ryne at RPAH”.
Dr Guirgis completed an insurance report on 25 January 2012.
The applicant saw Dr Guirgis on 5 March 2012 and psychologist Ms Marcia Tsimboukis on 7 March 2012 for “mental health”.
On 29 March 2012, Dr Guirgis recorded that a case conference had taken place with Selin of Konekt. The applicant was being sent for exercise physiology. He was “very angry, upset don’t want to work”.
On 16 April 2012, exercise physiologist Ms Geraldine Marie reported to Dr Guirgis. The applicant had been referred for a structured exercise program for his right ankle.
Ms Marie recorded a history that the applicant was stripping timber from door frames when he slipped and the door fell on his ankle. He had symptoms of pain in the lateral ligaments of the right ankle, which could radiate into the anterior aspect of the right foot.
Dr Guirgis has recorded consultations for WorkCover on 23 April 2012; 8 May 2012; and 24 May 2012, with no details of the injury recorded.
Ms Marie reported on 11 May 2012 that the applicant’s work restrictions remained the same, but he had demonstrated improvement in his exercise tolerance and function. He was able to perform full repetitive squats and 10 calf raises but compensated with his left foot due to pain in his right ankle.
Ms Marie recorded that the applicant had occasional soreness in his right ankle, with increased stiffness in the morning and cold weather.
On 5 June 2012, Ms Marie reported that the applicant’s exercise tolerance and function had improved. He was completing his hydrotherapy program. He still reported occasional soreness in the right ankle, with an increase in stiffness in the morning and cold weather.
On 6 June 2012, Dr Guirgis recorded that the applicant had a painful right wrist and limitation of movement. She noted NSW – WorkCover.
There was one more consultation with Dr Guirgis, on 12 June 2012. She noted that a letter was created – “complete record”. This coincided with the applicant changing doctors to Dr Ginges.
There is in evidence a medical certificate issued by Dr Allen on 29 June 2011. It certified the applicant as unfit for work from 29 June 2011 to 6 July 2011, inclusive, due to “injured right foot”.
The WorkCover NSW medical certificates issued by Newtown Medical Practice were signed by various doctors, including Dr Guirgis, Dr Spanswick and Dr Allen. The last certificate is dated 24 May 2012. There is no reference in any of the certificates to any injury other than to the right ankle.

Dr Medhat Guirgis – Orthopaedic Surgeon

Dr Guirgis reported to Dr Sara Guirgis on 7 September 2011.
Dr Guirgis diagnosed post-traumatic mechanical derangement of the right ankle, with known avulsion fracture of the fibular attachment of the lateral collateral ligament. No other injuries were recorded.

Dr Sanjeev Gupta – Orthopaedic Surgeon

Dr Gupta reported to Dr Sara Guirgis on 15 November 2011.
Dr Gupta recorded a history of injury on 29 June 2011 [sic] when some blocks of cement [sic] fell directly on the applicant’s ankle. He sustained injuries to his right ankle and left wrist.
The applicant had multiple areas of tenderness that were not consistent with one single clear pathology. With distraction, he had quite a good ankle range of motion and no subtalar irritability.
Dr Gupta recommended that the applicant have an MRI.

Glebe Family Medical Practice

The clinical records of the practice include Active Past History of a right ankle injury on 27 June 2011; right cervical radiculopathy in October 2013; and lumbar disc bulge in July 2017. The Inactive Past History includes supraspinatus tear on 13 December 2012.
On 7 June 2012, Dr Zoe Case recorded that the applicant had presented predominantly to get QBE payment for his WorkCover claim reinstated. Dr Guirgis was his return to work doctor. He “had an argument with her over being able to lift through the left wrist at 5kg – believes he can’t”. Dr Guirgis wrote a certificate saying he could and an argument ensued, resulting in the applicant wanting another doctor to take over his WorkCover claims.
The applicant had two separate claims, for his left wrist and an ankle injury claim. He also wanted to know if his right wrist, “injured last year”, could be claimed. He had not notified his workplace and Dr Case advised him to do so. As she was leaving the practice, she arranged to transfer the applicant’s WorkCover claims to Dr Ginges.
On 13 June 2012, Dr Ginges recorded that the applicant had a right ankle claim. The injury occurred when he was stripping a door and a hinge landed on his feet.
Dr Ginges referred to a letter from QBE dated 4 June 2012, stating the applicant had failed to comply with his injury management plan. She recorded the reason for the visit as WorkCover – right ankle.
On 28 June 2012, Dr Ginges recorded that the applicant had a left wrist injury in 1994. He had revision surgery by Dr Ryan in 2011. He “had payout and WorkCover claim has ceased”. His recent job made his wrist worse. His right wrist was also injured when timber dropped on it. He was to return in a few weeks re: ankle.
Dr Ginges recorded on 4 July 2012 that QBE’s case manager was finding it very difficult to deal with the applicant. He was not attending his rehab sessions. The case manager thought he should return for longer hours. Dr Ginges did not agree “at this stage”. She would talk to the applicant further.
Also on 4 July 2012, Dr Ginges recorded having spoken to Geraldine (Ms Marie) who was encouraging the applicant not to wear the stick. She felt he favoured the other side without the stick. The applicant was relatively compliant. He complained more about the wrist than the ankle.
On 11 July 2012, Dr Ginges recorded the reason for the applicant’s visit as right ankle injury. His pay had been suspended because he didn’t attend Konekt appointments. He felt he could not stand for long periods, so he could not do traffic work. She noted “new claim - right wrist”. She recorded the injury to the right wrist in June 2011 when a beam fell on the applicant’s wrist and hand. He had not submitted a claim “until now”.
Ms Marie reported to Dr Ginges on 12 July 2012 that the applicant had demonstrated significant improvement in strength and endurance. His work restrictions had been upgraded. He reported some discomfort wearing enclosed shoes. He walked around the gym without his walking stick but limped and compensated for his right foot.
On 18 July 2012, Dr Ginges recorded that the applicant had gone to Parramatta to see a specialist who was in fact in the city. He was on his feet a lot and walked for 45 minutes. He could not attend an appointment at Konekt as his foot was so sore. She noted antalgic gait.
Dr Ginges recorded on 9 August 2012 that WorkCover had not approved the applicant’s claim for his right hand and he could not afford to pay for an MRI. The reason for the visit was recorded as right ankle injury and right wrist injury.
On 5 September 2012, Dr Ginges recorded having a discussion with Ben Crawley from Konekt. The applicant was likely to have permanent restriction of his right ankle and was having significant pain. It was difficult to work out job opportunities in view of his wrist and ankle pain.
On 19 September 2012, Dr Ginges recorded that the applicant had ongoing right ankle pain. QBE was recommending 12 weeks of restricted activity. She agreed that the right wrist was primarily caused by overuse as a result of the left wrist injury. “We will reopen this claim”.

On 28 September 2012, Ms Marie reported that the applicant continued to improve. He still experienced pain in the lateral aspect of his ankle with walking, inversion and in the morning.
On 13 February 2013, Dr Ginges reported that the applicant had been a patient of the practice since 2004 and her patient since May 2012. He suffered from left wrist injury; right ankle injury; and right shoulder injury. He was not able to work and was in significant pain.
The practice commenced issuing Centrelink medical certificates in June 2013. On 5 June 2013, Dr Ginges certified that the applicant had left wrist, right ankle and right shoulder injuries. The certificate dated 5 October 2013 recorded chronic left wrist pain, with onset on 1 January 2004; and right ankle ligamentous injury and chronic pain in shoulder and right wrist with overuse, both with onset on 1 July 2011.
On 3 September 2014, Dr Jenkins reported to QBE that the applicant was experiencing back pain “which relates to his previous ankle injury” and was hoping to re-open his case to fund his physiotherapy.
On 12 September 2014, Dr Jenkins referred the applicant to RPA physiotherapy for his lumbar spinal problems.
On 15 September 2014, Ms Ali Gibson, physiotherapist/podiatrist, reported to Dr Jenkins, who had referred the applicant regarding pain and reduced function of his right ankle from the injury in 2011.
Ms Gibson noted, among other findings, a palpable mass at L4, to the right. The applicant advised her it had been there since the fall. This appears to be the first and only mention of this mass.
Ms Gibson reported that after initial treatment, which included education, dry needling and soft tissue release of his back, the pain in the applicant’s right ankle improved.

On 31 July 2017, Dr Jenkins recorded “back pain – long term”. It was more severe in the left lumbar area, with no precipitating factors. She noted the applicant had disc disease in 2014 and “repeat CT”.
Dr Jenkins continued to record lumbar disc bulge as the reason for the applicant’s visits. On 15 November 2017 she recorded that he had persistent numbness in the right lower leg. He had attended Canterbury Hospital on 9 November 2017 with numbness in his right leg after hanging washing. It was thought to be L4 impingement. She suggested MRI but it would be too expensive for him.
Also on 15 November 2017, Dr Jenkins referred the applicant to Westmead Hospital Outpatients Neurosurgery. She stated that he had presented to Canterbury Hospital on 9 November 2017 with acute onset of numbness in his right leg following movement of the hip in a car. He had a history of lumbar disc degenerative disease. Westmead advised that it was unable to accept referrals from outside its area.

The various referrals to other practitioners include the applicant’s past history of right ankle injury on 27 June 2011 and right cervical radiculopathy in October 2013.

Dr James Bodel – Orthopaedic Surgeon

Dr Bodel was qualified by the applicant’s former solicitors and reported on 1 June 2012.
Dr Bodel recorded a history that on 27 June 2011, the applicant was stripping some timber work when a heavy fire rated door fell on his right foot and ankle. He managed to get out from underneath the weight and tried to continue working. He reported the problem, as he was developing increasing pain and swelling, and went home early.
Dr Bodel recorded a consistent history of the applicant’s treatment. The applicant said there had been no real improvement in his condition and he remained under the care of Dr Sara Guirgis.
There had been a previous injury in 1994, after which the applicant was off work for about three or four years, but was able to return to heavy labouring. He also had a previous claim for injury to his left wrist.
The applicant’s complaints were recorded as pain in the region of the right wrist, which related to his original injury many years ago, and aggravated by the fall when the door fell on his foot; problems with his left wrist; and pain in the region of the left [sic] foot and ankle. He could not walk on uneven ground.
Dr Bodel referred to investigations of the applicant’s right ankle, which he opined showed lateral ligament injury, caused by the accident on 27 June 2011. He assessed 4% WPI as a result of injury to the right lower extremity.

Dr Sikander Khan – General Surgeon

Dr Khan was qualified by QBE and provided two reports dated 26 July 2012.
Dr Khan’s first report was mainly concerned with injury to the applicant’s right wrist on 11 June 2011. However, he did record that on 27 June 2011, while the applicant was hammering out the hinges of a large wooden door, it fell onto his right foot and he suffered injury to his right foot and ankle. He used crutches for a month and then a walking stick, causing increased symptoms in his arms.
The applicant had previously injured his left wrist in 1994, requiring several operations, followed by eventual fusion of the wrist, and revision arthrodesis on 3 August 2011.
The applicant complained of tingling and pain in his right wrist. Using a walking stick caused pain in the right wrist. His left wrist pain had increased since the operation in August 2011.
Dr Khan believed the applicant had recovered from the injury on 11 June 2011. The condition and any disabilities of his right wrist appeared to be a consequence of favouring his left wrist and were “no longer related to his employment or to the work incident of 11 June 2011”.
Dr Khan opined that the applicant was fit for his pre-injury duties as far as his right wrist injury was concerned. However, he was unfit for his pre-injury duties because of a different injury to his right ankle and unrelated condition of his left wrist.
Dr Khan’s second report was mainly concerned with the injury to the applicant’s right ankle.
Dr Khan again recorded a history that on 27 June 2011, the applicant was hammering out the hinges of a large wooden safety door when it fell on his right foot and ankle, causing him to fall back onto the floor. He managed to slowly push the door off him and got up. He reported the injury but continued working.
The applicant’s right leg and ankle swelled up and he was taken to RPA Emergency Department, where x-rays were carried out. He was diagnosed with soft tissue and ligament injury and sent home on crutches.
The applicant saw Dr Sara Guirgis and had treatment, including physiotherapy and an exercise program. He was also referred to Dr Gupta and Dr Medhat Guirgis. He underwent CT and MRI scans.
Dr Khan recorded that the applicant’s right foot and ankle were painful when he got up. Prolonged walking and standing made the symptoms worse. The ankle tended to swell and throb.
Dr Khan opined that the applicant appeared to have sustained a direct blow to his right ankle and foot, resulting in soft tissue injury in the form of contusion and inversion strain of the right ankle. This resulted in a partial tear of the anterior talofibular ligament (ATFL), in the manner described. The injuries were consistent with the history.
The applicant still had some lingering symptoms in his right ankle, with some restriction of movement.
On 15 August 2012, Dr Khan provided a further report, which was concerned with the applicant’s fitness for work as a result of the injury to his right ankle.
Dr Khan next reported on 24 March 2017.
This consultation was in respect of the injury to the applicant’s right foot and ankle. The applicant confirmed the history of the injury and his treatment. He stated that his left wrist was also affected and he was getting worse pains in his wrist, but the injury was not accepted as he did not report it at the time. He mentioned that he hurt his back and neck in the fall but did not complain about them at the time.
Dr Khan recorded that one week after the incident the applicant had an operation on his left wrist, which was not related to the incident. He apparently had a fusion of the wrist. A few months after the operation, he complained to his general practitioner of pains in his neck, shoulders and back, but she did not do anything about it. He was under the care of a third GP, Dr Jenkins.
The applicant had consulted doctors at RPA. He was under the care of rheumatologist Dr Matthew Holton (Dr Holton is in fact a psychiatrist and pain management specialist), who carried out scans of his neck and back and had given corticosteroid injections of those areas. He had had hydrotherapy for his right foot and ankle, but no further x-rays or scans. The applicant had not worked since last seen by Dr Khan on 27 July 2012.
Dr Khan referred to the reports of Dr Bodel dated 1 June 2012 and Dr Lee dated 30 November 2016. He confirmed that in his report dated 26 July 2012, the applicant had made no complaints in relation to the cervical or lumbar spines, or the right shoulder as a result of the injury on 26 July 2011 [sic]. Dr Khan noted that the reports of Drs Bodel, Gupta, Guirgis and Schaeffer, and the medical certificates made no mention of complaints in relation to the cervical or lumbar spines, or the right shoulder, as a result of that injury.
The applicant complained of a hot sensation and pain in the sole of his right foot. He was unable to wear enclosed footwear and normally wore sandals. The pain was also along the lateral aspect of the ankle, which tended to roll and give way at times.
The applicant also complained of pain in the lower back, worse when the weather changed. There were no radicular symptoms in the legs. He had pains in the back of the neck with radiation to both shoulders, but no radicular symptoms in the arms. Both shoulders were painful.
Dr Khan referred to the various investigations of the applicant’s right ankle and lumbar spine. He examined the applicant’s right ankle, neck, upper limbs, shoulders, back and lower limbs.
Dr Khan opined that as a result of the injury on 27 June 2011, the applicant had sustained a soft tissue injury to his right ankle and foot, causing a partial tear of the ATFL, with avulsion injury from the tip of the lateral malleolus, requiring conservative management.

Dr Khan further opined that the applicant did not sustain any significant injuries to the lumbar or cervical spines, wrists and shoulders as a consequence of the incident on 27 June 2011. He based this on the absence of any recorded or documented complaints of pain in those regions following the accident. The claimed injuries were not consistent with the history.
Dr Khan assessed the applicant with 4% WPI as a result of the injury to his right lower extremity (ankle and foot).
On 2 May 2019, Dr Khan reported having re-examined the applicant on 14 March 2019. He again confirmed the applicant’s history. The applicant remained under the care of Dr Holton. He had had further x-rays of his back and right ankle and had been having hydrotherapy at Canterbury Hospital for the last two years.
The applicant stated that the condition of his right foot and ankle remained unchanged. He had pains in the ankle and foot and was unable to wear shoes for prolonged periods. He had constant pains in the lower back, worse on the change of weather. The pain tended to radiate down the right leg, but not the left. He had pains in the back of the neck, with radiation to both shoulders, which were also painful. His right wrist tended to ache, as he was using it more to protect his left wrist, injured in a previous work incident.
Dr Khan’s diagnosis remained unchanged. He found no contemporaneous documentation of any injuries to the applicant’s neck, back, shoulders or right wrist. There was a significant gap from the date of the incident to the alleged development of symptoms in his neck, back and arms, some months after he had surgery on his left wrist.
Dr Khan opined that the gradual onset of symptoms in the applicant’s neck, back, shoulders and wrist was more likely due to constitutional degenerative conditions in the multiple joints and neck, as noted in the scans, and appropriately treated by a rheumatologist, Dr Holton [sic]. The right wrist could have been aggravated by the surgery undertaken for the left wrist.
Dr Khan was of the opinion that treatment for the applicant’s neck and back was not reasonably necessary as a result of the injuries on 11 June 2011 and 27 June 2011 or their sequelae.
Dr Khan’s assessment of WPI as a result of injury to the applicant’s right foot and ankle remained unchanged at 4%. While the applicant may have had problems in his neck, back, shoulders and wrists that were causing impairment, they could not be assessed according to WorkCover Guides for the Evaluation of Permanent Impairment, as they were constitutional and his employment was not a substantial contributing factor to any injuries or aggravations.

Dr Brindha Shivalingam – Neurosurgeon

Dr Shivalingam reported to Dr Jenkins on 8 September 2014.
She recorded a history that in 2011 the applicant was injured while removing a door from its hinges. The door “gave way”, the floor was slippery and “he ended up falling on his back”, with the point of maximal impact being his right ankle. Since the accident, he had ongoing problems with severe pain involving his right ankle. Subsequently, he developed back pain. His whole leg ached and felt unusual. He did not give a classical distribution of sciatica as such. The pain had subsequently caused stiffness and loss of range of movement. The applicant had seen a physio who recommended many sessions in order to get better.
Dr Shivalingam noted that the applicant had brought a CT of the lumbar spine that looked fairly unremarkable. There was a disc bulge at L5/S1, “but it seems fairly minor and is more off to the left than the right if anything”. She did not feel it was the cause of the applicant’s problems. She had told him that most often with injury such as this, the pain is really caused by muscular injury. She therefore agreed that ongoing intensive physio was the only thing that would make a difference. She hoped he would be successful in getting some funding for it.

Canterbury Hospital

On 1 December 2014, Dr Jenkins referred the applicant for physiotherapy at Canterbury Hospital. She noted that he had been attending for right ankle rehab. He was still having movement difficulties and would benefit from hydrotherapy. He was waiting to see “an orthopod” about his left wrist.
There is a hydrotherapy assessment form, the date of which is illegible, but may be 4 February 2015. It records what appears to be “20+ year history of multi jnt (?) pain. Multi injury work related”.
On 31 July 2017, Dr Jenkins referred the applicant to Canterbury Hospital for physiotherapy. He had “long term back pain due to disc disease but has recently had a severe exacerbation of the pain affecting his lumbar area”.
The applicant attended the hospital on 9 November 2017. The triage comment records “nil known injury, denies pain”. He had lower leg numbness since “1500”. There was numbness over the calf, no sensory deficits to the foot, and no motor deficits.
There is a record of chronic back pain, and what appears to be “sciatica symptoms” and “1994 disc - clinic”. There had been steroid injections for the last three months.
The Discharge Referral records that the applicant presented with altered sensation of the medial aspect of the left leg on a background of chronic back pain with right sciatica.
The history recorded was that the applicant was in the backyard putting up laundry barefoot. He then bent to get into the car. He was driving for 10 minutes and noted altered sensation to the medial aspect of his right leg. This felt “different from previous back pain symptoms”. There had been no exacerbation of back pain or leg symptoms, and the applicant had “actually improved since steroid injection 3 months ago”.
The applicant’s past history included a fall in 1994 with ORIF (open reduction and internal fixation) left wrist and back pain. He had predominantly right lower limb sciatica symptoms, managed by the pain clinic at Glebe Medical Centre.

Dr Y. Kai Lee – Orthopaedic Surgeon

Dr Lee has been qualified by the applicant. He reported first on 30 November 2016.
He recorded a history that on 27 June 2011 the applicant was taking down a heavy door, weighing about 120 kgs, when it slipped and fell on him. He continued to work and reported it. When he returned home, he noticed his right ankle was swollen and he was taken to RPA. He was diagnosed with ligament injury and discharged with crutches. This injury also made worse a previous injury to his right wrist on 11 June 2011.
The applicant complained of back pain, neck pain, right wrist, shoulder and ankle pain and pain in both knees from the same accident. He had a fusion in his left wrist from a previous injury and it was also painful. He could not pick up items weighing more than 10 kgs. He used to vacuum and clean up. He could not drive too far or walk too far.
Dr Lee opined that the applicant injured his back, right ankle and right shoulder, with continuing pain and stiffness. The injury at work was the cause of his condition and “the injury at work was a substantial contributing factor”. He reports that investigation showed the applicant probably had underlying degeneration in his shoulder. He also had underlying degeneration in his right ankle.
Dr Lee assessed 7% WPI as a result of injury to the applicant’s cervical spine, despite having recorded no injury to his neck; 4% WPI as a result of injury to his right upper limb; and 4% WPI as a result of injury to his right lower limb. He also assessed the applicant’s lumbo-sacral spine, but the impairment was assessed as 0% WPI. The total assessment was 15% WPI.
Dr Lee reported next on 5 September 2018.
Dr Lee recorded a history of injury to the applicant’s right wrist on 11 June 2011; and to his back, neck, right ankle, both shoulders and left wrist on 27 June 2011. He noted that the applicant continued to have problems in his right ankle. His doctor had tried to arrange surgery to his left knee and wrist. He claimed there was more pain in his ankle and back.
Dr Lee summarised the applicant’s injuries as being to his right ankle, neck, back, right upper extremity and left upper extremity. He commented that the applicant had injured his right ankle, right shoulder and wrist. He also injured his cervical spine and lumbosacral spine. The x-rays “show not much degenerative changes indicating the injury was quite recent”.
Dr Lee noted that Dr Khan, who reported on 24 March 2017, did not find any impairment of the applicant’s shoulder, neck or back. He did not think the applicant’s shoulder, neck and back injuries were related to the accidents. His findings on examination were “quite different” from those of Dr Lee. The applicant complained of pain in his neck and shoulders at the time of his consultation and when he consulted Dr Khan. It was more likely that there was some restriction of movement and Dr Lee believed his findings were closer to the facts.
Dr Lee opined that it is not uncommon to have neglected the other pain when the applicant was more concerned with his right wrist injury, left wrist surgery and right ankle injury.
Dr Lee noted that the first entry about cervical spine pain was in October 2013; and the first documentation of supraspinatus tear was on 13 December 2012. The applicant “would have complained about neck pain before 10/2013 and shoulder pain before 13/12/2012”. He agreed this was not immediately after his injuries in November [sic] 2011. He had a fusion of his left wrist about a week after he injured his right wrist. It would possibly take him some time to notice there was also pain in his neck and shoulder. Dr Lee concluded that it was more probable than not that the neck and shoulder injury are related to the accidents on 11 June 2011 (which is not pleaded) and 27 June 2011.
Dr Lee assessed WPI of 6% as a result of injury to the applicant’s cervical spine; 6% WPI as a result of injury to his right upper limb (shoulder and wrist); and 3% WPI as a result of injury to his right ankle, a combined total of 15%. He assessed 0% WPI as a result of injury to the lumbar spine.
On 18 December 2018, Dr Lee issued an amended assessment. He assessed 6% WPI as a result of injury to the cervical spine; 7% WPI as a result of injury to the right upper limb; 1% WPI as a result of injury to the left upper limb; and 3% WPI as a result of injury to the right ankle, a combined total of 17% WPI.
However, the assessment of the cervical spine referred to dates of injury of 11 June 2011 and 27 June 2011; of the right upper limb and left upper limb to date of injury of 11 June 2011; and of the right ankle to date of injury of 27 June 2011.

SUBMISSIONS

The parties’ submissions have been recorded, so I will refer to them only briefly.

Applicant

The applicant referred to his statements. The door fell on top of him, causing him to fall backwards. He used both arms to protect himself. The first obvious impact was to his right foot and ankle. He had pain to all areas, but the worst pain was to his foot and ankle. He started limping, which caused lower back pain.
The applicant submitted that he complained to his GP, but he felt he was being ignored. His complaints were not considered. He changed doctors, but there were still issues with his treatment and neck pain. Multiple GPs did not listen and treated only the accepted injury. His drawings were consistent with how the injury occurred and how he sustained injury.
The applicant conceded that there is not a great deal of treatment evidence to support him but submitted this is not detrimental to his case. He referred to his own evidence that he made multiple complaints that were not heeded. The clinical records have to be treated with caution. He relied on Chanaa v Zarour [2011] NSWCA 199 in submitting that corroboration was not required; and a decision must be made on the whole of the evidence.
The applicant referred to the physiotherapy report dated 12 November 2012, which records symptoms that are consistent with what he said about his injuries. Dr Sara Guirgis’s note of 30 June 2011 is quite brief and short, and she noted only the injuries to the right ankle and foot. He submitted that I would view the records with caution, citing Davis v Council of the City of Wagga Wagga [2004] NSWCA34 (Davis). There is nothing to indicate he didn’t report other injuries.
The applicant submitted that Dr Ginges also initially recorded only the injury to his right ankle. He had an argument with Dr Guirgis about his left wrist injury. There was also an issue with her handling of complaints.
The applicant submitted that he had a consequential condition as a result of his ankle pain. This was consistent with him limping without his walking stick and compensating for his right foot, reported by Ms Marie. He had an x-ray of his right shoulder on 2 November 2012; and an ultrasound on 13 December 2012, with a history of “? rotator cuff injury”.
The applicant referred to the evidence of Dr Ginges in a medical certificate dated 13 February 2013, in which she recorded injuries to his left wrist, right ankle and right shoulder; Dr Shivalingam; Ms Gibson; Dr Shah; Mr Campbell; RPA Pain Management Centre; Canterbury Hospital physiotherapy; and Dr Lee. Although Dr Lee did not refer to the applicant’s neck when he described his injuries in his report dated 30 November 2016, he assessed the cervical spine, so what he has recorded is not accurate. The applicant submitted that his condition has deteriorated since he was examined by Dr Khan.
The applicant submitted that Dr Lee had reported that it is not uncommon to have neglected other pain when he was more concerned with his right wrist injury, left wrist surgery and right ankle injury; and he would have complained about neck pain before October 2013 and shoulder pain before 13 December 2012. His evidence is that he did complain and had issues immediately after the injury.
The applicant relied on Dr Lee’s assessment dated 18 December 2018. The mechanism of injury recorded by Dr Khan is consistent with the applicant’s reporting. His issue was the lack of contemporaneous reporting, but the applicant has explained this. The applicant submitted that the respondent bears the onus of establishing some other cause of his condition.
In reply to the respondent, the applicant submitted that he drew the sketches. He stated that he fell down and the door fell on top of him. This is consistent with Dr Lee’s history and there is no dispute. Dr Lee examined him, obtained a history, and inferences can be drawn from this. His statements are similar, but the earlier one is dated 2017.

Respondent

The respondent submitted that it is clear that the applicant attributed more of his problems to the frank incident as time went by, which was concerning. The decision in Davis means that care must be taken when looking at clinical records, but what we see is a glaring absence of any other complaint other than about the right ankle. The applicant had disagreements with both Dr Guirgis and Dr Ginges. He tried to explain that neither wrote down what he complained of, apart from the right ankle.
The respondent submitted that in his first report, Dr Lee recorded a history of injury to the right ankle only. There is nothing to suggest aggravation of the left wrist. This was the first time anyone, including the applicant, related more than the injury to the right foot and ankle to the injury in 2011; and it was 5.5 years after the accident. The first time Dr Lee added the left wrist was in 2018.
The respondent submitted that the first reference in the records to the applicant’s right shoulder was on 13 December 2012, at last 1.5 years since the frank incident. The first history of cervical spine complaints was in October 2013. There is no history in the clinical records and a greater delay.
As regards the applicant’s left wrist, the respondent submitted that the important part was the accident in 1994. There is no evidence from Dr Ryan about what was pre-existing and what was due to the “door incident”.
The respondent submitted that Dr Lee opined that “it is not uncommon” for the applicant to have neglected the other pain. This is very equivocal language, but it is not the case. The applicant said he did notice the other injuries, he told two GPs and they didn’t take any notice. Dr Lee jumped from “possible” to “probable” and attributed the applicant’s neck and shoulder pain to two frank incidents, one of which is not claimed. The respondent submitted that this is not convincing. Dr Khan raised that Dr Lee had not explained how or why the door incident led to such a direct injury. As for the applicant’s submission regarding his limping and compensating for his right foot, that is not his evidence; and it is not pleaded that his lumbar spine condition is secondary to the injury to his right ankle.
The respondent submitted that I would not accept that the applicant sustained injury to his left wrist. Dr Gupta focused on the right ankle but mentioned the left wrist. Dr Medhat Guirgis also focused on the right ankle. The respondent submitted that here are two orthopaedic specialists, neither of whom recorded injuries to the applicant’s neck, right shoulder or lumbar spine. One takes a history of injury to his left wrist. The respondent submitted that this was a passing reference, in error.
The respondent submitted that each of the medical certificates, which were issued by different doctors, refers only to the right ankle. They cover a period of 1.5 years. The Centrelink certificates began in June 2013 and do not give the applicant comfort with respect to a causal relationship.
The respondent submitted that the x-ray of the applicant’s right shoulder in November 2012 does not fill in the gaps. The report suggests he may have a rotator cuff injury. He was 56 and had had a number of physical jobs. There is nothing to say it was related to the door incident. Dr Khan suggested it was more consistent with a degenerative condition. The CT scan of the cervical spine was not taken until 2013. The various investigations do not give the applicant comfort. The Discharge Summary referred to the top of the applicant’s foot, and nothing else.
The respondent referred to the sketch attached to the Application; and submitted that we don’t know who drew it, although we may assume it was the applicant, or when it was drawn. We can have no confidence that it was drawn at or around the time the injury happened. I may take judicial notice that memories fade with time. The applicant is trying to say he was forced back, fell backwards and was crushed, which is why he has such widespread problems. The injury to the top of his foot is equally consistent with the door falling on his foot and missing every other part of his body.
The respondent submitted that the physiotherapy records in May 2015 are not of assistance. There is no shading of the applicant’s right shoulder. Dr Khan’s report dated 26 July 2012 is more contemporaneous than any other medico-legal report and there is no complaint about any of the various body parts in issue. He has dealt with causation, and explained why he disagreed with Dr Lee, in his report dated 2 May 2019. The respondent referred to Dr Bodel’s report, and submitted the applicant had the opportunity to tell Dr Bodel and his then solicitors what injuries he had sustained.
The respondent submitted that I would not be satisfied that the applicant has sustained injury other than to the right foot and ankle. The assessment of WPI with respect to that injury does not meet the threshold. As regards the claim for section 60 expenses, there is no causal connection with the body parts claimed. The respondent submitted that I would accept the opinion of Dr Khan.

SUMMARY

The respondent has accepted liability for injury to the applicant’s right foot and ankle on 27 June 2011. It disputes liability for all other alleged injuries.
Section 4 of the 1987 Act provides:
“‘injury’ -

(a) means personal injury arising out of or in the course of employment,
(b) includes a
‘disease injury’, which means--
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
…”

Section 9A of the 1987 Act provides:
“(1)    No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.

Note : In the case of a disease injury, the worker's employment must be the main contributing factor. See section 4.

(2)     The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)--

(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment,
(e) the worker's state of health before the injury and the existence of any hereditary risks,
(f) the worker's lifestyle and his or her activities outside the workplace.

(3)     A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following--

(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment,
(b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury.

(4)     This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”

The applicant does not claim to have developed consequential conditions of his neck, back, right shoulder, right hand, left wrist or left hand as a result of the injury on 27 June 2011. He must therefore satisfy the requirements of sections 4 and 9A of the 1987 Act in order to succeed in those claims.
The applicant bears the onus of establishing that he has sustained injuries arising out of or in the course of his employment, to which his employment was a substantial contributing factor. Despite the submission of the applicant to the contrary, there is no onus on the respondent to establish some other cause for his condition.
The applicant’s evidence, in statements made on 15 September 2017 and 10 November 2020, including sketches drawn by him, is that a door, weighing approximately 120 kgs, slipped and fell on top of him, causing him to fall backwards. He used both arms to protect himself from the weight of the door. The first and most obvious impact was to his right foot and ankle.
The applicant has not given such a detailed account of the injury at any other time before 2017. He did tell Dr Lee that the door slipped and fell on him. He has told various other practitioners that the door fell on his foot.
The Initial Notification of Injury to WorkCover NSW, dated 20 July 2011, states that on 27 June 2011 the applicant suffered a right ankle injury when “the door fell on top of his foot”. This notification was made by “John” (the employer’s contact is “Paul”) and refers to information being provided by “IW” (injured worker).
I accept that this may be a shorthand account of the injury, but it appears to be the most contemporaneous record, apart from the clinical records, and it provides a history that is consistent with that given by the applicant until November 2016, when he first saw Dr Lee.
The applicant presented at RPA on 27 June 2011, the date of the injury. The only injury recorded was to his right foot, which had been struck by a door. The only investigation arranged was an x-ray of his right foot. The WorkCover NSW medical certificate issued by Dr Jerry Laurence includes only “soft tissue injury right foot”.
I am mindful that clinical records, particularly those of a busy hospital, may be incomplete or inaccurate, but this was the applicant’s first opportunity to complain of other injuries and have them investigated. It must be considered in light of the other medical evidence.
The clinical records of the general practitioners who treated the applicant immediately after the injury do not record injury other than to his right ankle and foot. The medical certificates issued from 29 June 2011 to 6 December 2012 refer to no injury other than to the right ankle. Where the injury is described, it is noted that “door hinge landed on right foot”.
The applicant has explained this in his evidence by stating that neither Dr Guirgis nor Dr Ginges, his first two GPs, listened to his complaints. Dr Ginges finally started paying attention to his complaints with respect to pain to his left wrist, right shoulder, lower back and depression, but he felt his complaints with respect to neck pain were still being ignored. There does not appear to be any logical explanation why Dr Ginges would listen to his other complaints but ignore those about his neck.
A review of the clinical records of Newtown Medical Practice shows that the applicant consulted various practitioners, who issued him with medical certificates. None recorded any complaints other than to his right ankle or foot. The applicant has not given evidence that the other doctors he consulted ignored his complaints.
Dr Guirgis first saw the applicant on 30 June 2011, some three days after the injury. She took a history of the injury and the applicant’s complaints, which did not include the door falling on top of him, or injuries to any part of his body but his foot.
Far from being uninterested in the applicant and his injury, Dr Guirgis appears to have willingly participated in being his nominated treating doctor. She arranged for investigations of his ankle; completed an insurance report on 25 January 2012; and took part in a case conference on 29 March 2012 with his rehabilitation provider. She recorded that the applicant was “very angry, upset” and did not want to work.
Dr Guirgis also referred the applicant to Dr Medhat Guirgis in September 2011 and Dr Gupta in November 2011 for specialist orthopaedic opinion. Dr Guirgis recorded no complaints of any injury other than to the right ankle. Dr Gupta recorded an injury to the left wrist, but has not explained how that occurred when the history was of blocks of cement [sic] falling directly on his ankle. He does not appear to have examined the applicant’s left wrist; and he may have been referring to the earlier injury to the left wrist.
The applicant then changed GPs and began to consult Dr Ginges. However, the first doctor he saw at Glebe Family Medical Practice was Dr Case. She recorded a history that he wished to have his payments reinstated by QBE. He had argued with Dr Guirgis over his lifting restriction, so he wanted another doctor to take over his claims. She did not record a history of Dr Guirgis not heeding the applicant’s complaints of other injuries, although the argument over his restriction may perhaps be interpreted as such.
Dr Ginges then assumed the applicant’s care. She recorded that he had a right ankle claim. The injury occurred when a door hinge landed on his feet [sic].
Dr Ginges also took an active role as the applicant’s nominated treating doctor. She conferred with his case manager and disagreed that he should increase his hours. She took part in a case conference with Konekt and tried to work out job options. She thought this was difficult because of his right wrist pain (related to the injury on 11 June 2011) and right ankle pain. If she believed he had other injuries, she would be expected to also raise them at that stage.
Dr Ginges also discussed the applicant’s treatment with Ms Marie. It appears unlikely that she would have ignored his complaints of other injuries sustained on 27 June 2011, as she noted his 1994 injury and the injury to his right wrist on 11 June 2011, which does not form part of this claim.
On 13 February 2013, Dr Ginges referred in a report dated 13 February 2013 to the applicant having a right shoulder injury but does not refer to any date or mechanism of injury.
When the applicant came under the care of Dr Jenkins, she reported to QBE on 3 September 2014 that he had back pain that related to his previous ankle injury but gave no reason why this may be the case. The applicant wanted QBE to re-open the case to fund physiotherapy.
Apart from those practitioners whom the applicant claims ignored his complaints of other injuries, and those of whom he makes no complaint, but who did not record a history of other injuries, he was examined by Dr Bodel and Dr Khan, both experienced independent medical examiners. The applicant had legal advice at the time of his examination by Dr Bodel.
Dr Bodel recorded a history of the injury in 1994 and a previous claim for injury to the applicant’s left wrist. He recorded that the applicant’s right wrist was aggravated in the fall, but did not say how, and in any event no claim is made for injury to the right wrist.
Dr Khan was given no history of injury other than to the right ankle when he initially examined the applicant with respect to that claim in 2012. It was only in 2017 that the applicant complained of other injuries.
Dr Shivalingam reported in 2014 that the applicant had subsequently developed back pain, but she did not record any other injuries.
Dr Lee opined that it is not uncommon to have neglected the other pain when the applicant was more concerned with his right wrist injury, left wrist surgery and right ankle injury. However, that is not the applicant’s evidence. He has stated that he did complain, but his complaints were ignored. He has also given evidence that limping caused back pain but has made no claim in respect of a consequential condition.
Dr Lee reported that the applicant “would have complained” about neck pain before October 2013 and about shoulder pain before 13 December 2012. That is not convincing evidence that he did so, in light of the numerous practitioners who reported no such complaints. There is no reference to the applicant’s back, about which he also claims to have complained.
Dr Lee has opined that it would “possibly” take some time for the applicant to notice he also had pain in his neck and shoulder. Again, this is not in accordance with the applicant’s evidence that he did complain, but his GPs took no notice.
Dr Lee has concluded that it was more probable than not that the applicant’s neck and shoulder injury are related to the accidents on 11 June 2011, which is not pleaded, and 27 June 2011.
I do not accept Dr Lee’s evidence. His explanation of the delay in the applicant’s reporting of injuries other than to his right ankle and foot is unconvincing when the applicant’s evidence and that of the other practitioners is considered. He has also included in his assessment of WPI the injury sustained on 11 June 2011, in respect of which the applicant’s claim has been discontinued in this Application. This does not provide a level of confidence in his opinion as to the disputed injuries.
The applicant made a submission regarding his use of a walking stick, which may have led to a consequential condition. There is no claim for a consequential condition. If it were necessary to do so, I would determine that the applicant has not sustained any consequential condition. There is no medical support for such a claim.
As I have stated, there is no onus on the respondent to suggest an alternative cause for the applicant’s condition. However, I note that he has a longstanding lumbar spine condition, documented by RPA; and when he presented at Canterbury Hospital on 9 November 2017, the history recorded was that he had been putting up laundry and then bent to get into a car. The pain felt different from previous symptoms. Dr Holton referred to a motor vehicle accident. There may therefore be alternative causes for the applicant’s back complaints, but it is unnecessary to determine this.
In the matter of Nguyen v Cosmopolitan Homes [2008] NSWCA 246, McDougall J said (McColl JA and Bell JA agreeing):
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact.”
The evidence in this case is such that I am not satisfied, on the balance of probabilities, that the applicant sustained injury to his neck; back; right shoulder; right hand; and aggravation of injury to the left wrist and hand on 27 June 2011.
As I have determined that the applicant did not sustain injury, it is not necessary for me to consider the application of section 9A of the 1987 Act.
There will be an award for the respondent in respect of the claim for injury to the applicant’s neck; back; right shoulder; right hand; and aggravation of injury to the left wrist and hand on 27 June 2011.
The respondent is to pay, pursuant to section 60 of the 1987 Act, and subject to section 59A of the 1987 Act, medical and related expenses with respect to the injury to the applicant’s right ankle and foot.
The applicant does not have WPI of greater than 10% as a result of injury to his right lower extremity (right ankle and foot) and the medical dispute may not be referred to a Medical Assessor.

Kerry Haddock
MEMBER

16 April 2021