Pakniyat v Tresamber Australia Pty Ltd

[2022] NSWPIC 503

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Pakniyat v Tresamber Australia Pty Ltd [2022] NSWPIC 503

APPLICANT:

Hamid Pakniyat

RESPONDENT:

Tresamber Australia Pty Ltd

Member:

Michael Wright

DATE OF DECISION:

12 September 2022

CATCHWORDS:

WORKERS COMPENSATION - Claim for continuing weekly compensation in respect of disputed factual injurious event and disputed injury; consideration of lay witness evidence as to injurious event and medical evidence as to injury and capacity; consideration of current capacity and section 32A of the Workers Compensation Act 1987 (1987 Act) suitable employment; Held– applicant sustained injury on 13.8.21 when he fell off a ladder; held no current capacity for work; award pursuant to section 37 of the 1987 Act for continuing weekly compensation.

determinations made:

1. Respondent to pay the applicant weekly benefits pursuant to s 37 of the Workers Compensation Act 1987 from 6 May 2022 to date and continuing at the rate of $1,392 per week.

2.     General order as to s 60 expenses.

STATEMENT OF REASONS

BACKGROUND

1. In an Application to Resolve a Dispute (ARD), Mr Hamid Pakniyat (the applicant) claimed weekly compensation and medical treatment expenses as a result of injury sustained on 13 August 2021 in the course of his employment with Tresamber Australia Pty Ltd (the respondent).

2. In a s 78 notice decision dated 11 April 2022, the workers compensation insurer disputed injury pursuant to ss 4 and 9A of the Workers Compensation Act 1987 (the 1987 Act) in respect of injury to the left elbow, survival spine and lumbar spine. Total or partial incapacity for work was also disputed.

3. In a s 287A review notice decision dated 26 April 2022, the workers compensation insurer maintained the dispute and also issued a dispute under s 4(b) and also relied upon a factual dispute and noted investigation reports from M&A Investigation.

PROCEDURE BEFORE THE COMMISSION (the Commission)

1. At the conciliation/arbitration hearing of this matter on 10 August 2022, the applicant was represented by Mr Beran of counsel, instructed by Mr Sawers, solicitor, and the respondent by Mr McMahon of counsel, instructed by Mr Maakasa, solicitor. The applicant was assisted by an interpreter in the Farsi language.

2. 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.

3. Following arguments, the applicant’s Application to Admit Late Documents dated 9 August 2022 was admitted into evidence. This document included the supplementary statement of the applicant dated 1 July 2022 and the statement of his son, Amir Pakniyat dated 1 July 2022.

4. The respondent sought leave pursuant to s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to rely upon an unnotified dispute as to a secondary adjustment disorder. This application was opposed by the applicant. Following arguments, I declined to grant leave, for reasons given and available on sound recording.

EVIDENCE

Documentary evidence

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

   i)     ARD and attached documents;

   ii)     Reply and attached documents, and

   iii)    Applications to Admit Late Documents dated 5 July 2022 and 9 August 2022.

Oral evidence

1. Leave was granted for the respondent to cross-examine the applicant, limited to the circumstances of the alleged incident on 13 August 2021. Leave was not granted for the respondent to cross-examine Amir Pakniyat, the applicant’s son, for reasons given and available on the sound recording of the hearing of this matter.

FINDINGS AND REASONS

The applicant’s evidence

1. The applicant provided statements dated 7 February 2022 and 9 August 2022.

2. In his statement dated 7 February 2022, the applicant stated that he had lived in Australia for eight years and has permanent residency. He stated that he is not fully literate in English and in giving this statement he was helped by a Farsi speaking interpreter.

3. The applicant said he was employed by the respondent as a full-time painter. He stated that he had worked for the respondent for four months and had worked on the same work site, a 50 storey building, for the four months prior to 13 August 2021. He stated that his boss is “Tom” and he reported to him but Tom was not on the job site every day. He stated that his supervisor was Adam, who worked for the respondent. The applicant stated that he was doing walls and ceilings on the job site leading up to 13 August 2021.

4. The applicant stated that on 13 August 2021 he had started work at 7.00am on level 23 and he was “working between the levels”. He said he had been painting the ceiling in a huge space. He said that he was working from a ladder, which he had used for the whole morning. He said that the ladder was owned by the respondent. He stated that the ladder was double sided, with steps on one side and a brace holding the other side. He said that he was working on the ladder on the top level and his feet were 1.5m above the ground and he was reaching out with his painting hand when he fell backwards onto his left side. He stated that he did not hit his head and was not knocked unconscious. He stated that he had the paint brush in his hand when he fell and the ladder fell onto the ground. He said that the paint tin had been hanging on a metal hook on the ladder. He said there was not much paint in the bucket when he fell but the paint still spilled onto the floor. He stated that there were two electricians, whose names were unknown to him, working in the area and they contacted other persons. The applicant stated that he called his son Amir, who was on level 26. The applicant said that he was unable to get up from the floor and he was told not to move until the ambulance arrived, as he felt pain in his neck and back. He stated he was given medication by the ambulance officers when they arrived and he sucked on that. He said that they cut the clothes off his back and he was taken to St Vincent’s Hospital in the ambulance, where he had X-rays of his arm “and I don’t know where else”.

5. In his statement dated 9 August 2022, the applicant said that he had not lost consciousness in the accident. He stated that the work he had been doing at the time of the accident involved touch ups. He stated that after the accident he saw the other tradesman that he had been working with at the time of the accident. He stated that those tradesmen had cleaned up some of the accident site while waiting for help to arrive. He stated that he saw them stand up the ladder and one of them also picked up the paint bucket. He said that he had been painting with a baby roller and small paint brush, which one of the tradesmen put back in the paint bucket. The applicant stated that there had only been a small amount of paint in the small bucket and “a little bit” of paint was spilled on the drop sheet. He said that he did not see anyone clean up the paint, which was acrylic paint.

6. In cross-examination, the applicant was questioned as to whether his painting arm, that is his left arm, was fully extended at the time of the accident. The applicant said that it was. The applicant said that the ceiling height was about the height of the hearing room in the Commission, possibly 2.5 m. It was put to the applicant that standing on the top rung of the ladder and with his height, 183cm, his left arm would not have been fully extended. The applicant said that it was as he was obliged to carefully paint around light fittings working both in front of him and also behind him. He stated that it was necessary to fully extend his arm to avoid painting on the light fittings, as he would have been obliged to redo his work if he had painted on the light fittings. The applicant also stated that in doing this work he would be obliged to stand on different rungs of the ladder. The applicant said that he had not provided these details in his statement as he had answered the questions that had been put to him at the time and he had not been asked for such specific details. The applicant stated that he had to paint in front of him on around section and also to one side and that was when he fell. He stated that he had the small brush in his left hand and he also had the baby roll at the same time in the other hand. The applicant responded to the suggestion that he had not mentioned holding the baby roller in his statements by stating that as far as he could remember he had responded properly to persons asking him questions and possibly they had not asked for the same amount of detail as he had been asked in cross-examination. In re-examination, the applicant stated that immediately before the accident he had been painting by working forwards and behind.

7. In a workers compensation claim form dated 12 January 2022, the applicant stated that he slipped and fell from a ladder at work and landed on the left side of his body. He stated that the parts of his body that were affected were his neck, hand, back, elbow and adjustment disorder.

8. The applicant stated that he was off work for two weeks and he got back to work with the respondent on light duties for two weeks but after two weeks he was told not to come back. He stated that he then got another job doing part-time painting work and the last time he worked was on 7 January 2022, when he stopped because his back “started to hurt a lot” and he was told by his doctor “not to work as much”. He said that the pain is in his upper back, lower back and his left side and down his left leg to his knee and his neck hurts a lot. He continued to consult his general practitioner (GP) and was issued with a certificate of capacity certifying unfitness for work.

Amir Pakniyat

1. Amir Pakniyat provided a statement dated 5 August 2022. He stated that he was employed by the respondent and was working on the same work site on level 26 on 13 August 2021. He stated that he was working with the director of the respondent, “Tom”, when he received a phone call from his father at about 10.00am. He stated that his father said on the phone that he had fallen and hurt himself and they went immediately to see his father at about level 23. He stated that when he arrived he saw his father lying on the floor. He stated that he asked his father if he could move and was told by his father that he could not and his back was hurt. He stated that the ladder, paint bucket and paint drop sheets had been picked up to clear an area for first aid. He stated that this was done by other tradesmen on the site, possibly electricians. He stated that his father told him that he had fallen from the ladder whilst painting the ceiling doing touch ups with a small brush and a small bucket of paint, as the electricians had fitted the lights and damaged the ceiling. He stated that the ceiling height was about 3 to 4m. He also stated that his father told him that he had hurt his shoulder, left hand, finger, back, left side of the neck and was generally sore all over. He stated that he could not tell if paint had been spilt as the floor was already messy as the tiles had not yet been laid. He stated that his father was unable to stand up and the ambulance officers had to take him to the hospital. He stated that he had written and signed a report for a safety manager, possibly “Sascha”.

St Vincent’s Hospital

1. In a discharge summary of the Emergency Department of the St Vincent’s Hospital dated 13 August 2021, it was noted that the applicant had presented to the Emergency Department on 13 August 2021 having fallen 1m off a ladder whilst at work “with back, left elbow and left fourth digit pain”. The applicant was placed under spinal precautions due to the mechanism of the fall and it was noted that X-rays of the chest, left hand and left elbow showed nil fractures. It was also noted that a CT of the thoracic and “c-spine” was also reported to show nil fractures.

2. The discharge summary recorded a history that the applicant had minimal English and the history was taken from ambulance staff who spoke to men on site and from his son on the phone. It was recorded that the applicant worked as a painter and was painting the roof and slipped on the ladder rung and fill to the left and landed on his left arm and left hand side of his body. It was noted that there was no head strike and no loss of consciousness. Pain was recorded in the left fourth digit, left elbow and in the back and in the ambulance the applicant was given medication. It was noted that on examination the patient was “lying on bed in C-spine collar” and spinal tenderness from C5 to T10. A diagnosis of “back pain” was provided.

Tomislav Orlovic and Yevgeniy Hrabchak

1. Tomislav Orlovic provided statements dated 21 March 2022 and 1 July 2022.

2. In his statement dated 21 March 2022, Mr Orlovic stated that he has been a director of the respondent since 2008. He stated that the company is involved in painting, mainly interiors in commercial buildings and his day-to-day role is to manage the jobs. He stated that the business had never previously had any workers compensation claims made by any of the employees. He stated that his company contracted to Foxville Projects Group and the head contractor for the worksite was Multiplex. He stated that the applicant was provided with a ladder.

3. He stated that on 13 August 2021 they had been working on one of the higher levels on the worksite and the applicant’s job that morning was to be on the platform ladder and do the cutting in on the ceiling. He stated that the construction work had been done and there was coverage across the floor to protect the floor. He stated that he did not have enough painters available due to lockdown and he had been on-site checking work that day and was trying to work out what he was going to do in terms of getting more painters onto the site. He stated that one of his senior painters who was a supervisor was at home in the lockdown at that time. He stated that the applicant’s son approached him and told him that his father had fallen and he ran off and Mr Orlovic “followed him down there”. Mr Orlovic stated that the applicant had apparently telephoned his son after the incident to tell him what happened. Mr Orlovic stated that when he arrived the applicant was lying on his back on the ground where he believed he had fallen and the applicant was behind the ladder with his feet towards the base of the ladder. He stated that the applicant was on his back on the ground and his head was supported by a hardhat. He stated that the ladder was upright and appeared to be in the position where the applicant had placed it. He stated that the applicant was conscious and was fine “but he doesn’t want to get up”. He stated that there was no spilt paint and no drop to paintbrush anywhere. He stated that a can of paint was on the top platform of the ladder and the paintbrush was still in it. He stated that there was no fresh paint on the ceiling so he could not work out what the applicant was doing or how he came to fall. He stated that he did not know if the applicant had even fallen off the ladder. He stated that a number of people arrived on the scene including first-aid attendants, the union delegate and “the senior bosses” and the applicant was “just lying on his back with his head on that hardhat, and he won’t get up. He doesn’t even try to get up.” He stated that the applicant would not move for the paramedics and insisted he wanted to go to the hospital. He stated that he took photographs of the applicant and his son.

4. In his statement dated 1 July 2022, Mr Orlovic referred to health and safety and background experience matters which were not directly relevant to the incident in question. He also stated that he did not do an incident report for this matter because they were done by the head contractors and he had “no other incident report”. He stated that he had no details of any other contractors who were on that worksite level when the incident occurred other than Multiplex personnel. He stated that he was not aware of any “CCTV”. He stated that he noted that “the Multiplex report indicated that the ladder was inappropriate” but he firmly disagreed with this and said it was the correct ladder to be used.

5. Yevheniy Hrabchak provided a statement dated 1 July 2022. He stated that he had been employed by the respondent as a painter for the past 2½ years. He stated that he had been working on the building site on level 23 on 13 August 2021. He stated that it was a big floor. He stated that he did not know where the applicant was supposed to be working that day and there were about 25 painters at that time. He stated that as he was working he received a phone call from Mr Orlovic, who told him about the fall and asked him to go and check on the applicant. He stated that he found “that room” about “1 – 2” minutes later and he went into the room and the applicant was “lying down on the ground on his right side”. He stated that his son was standing behind the applicant, “just standing there, not panicking, not stressed, nothing, just seemed to be standing there waiting”. He stated that he knew that the applicant did not speak any English and he asked the son what had happened, who said that his father had fallen from the ladder. Mr Hrabchak said that “for a good hour, he just lay there on the ground. Just lying there, the whole time he does not try to get up”. He stated that when he first walked into the room the ladder was behind the applicant’s head and was upright, with the pot of paint on the top. He stated that there was no spilt paint, and there were no brushes fallen to the floor. He stated that “we tried to find and realise what he did, where he was painting, but because it is ceiling paint it dries very quickly and so we can’t see where he was painting”. He stated that when the ambulance arrived he thought the applicant told them that his right arm was sore but when they tried to help him to stand up he just screamed and said he was in pain. He stated that he believed that the ambulance officers gave him medication to inhale. He stated that “I had thought maybe he had fallen onto his ribs and fractured ribs and that might be why he had so much pain, but later I was told that he only had an injury to his big finger”.

Clinical notes

1. Clinical notes of the New Health Medical Centre recorded a consultation with Dr Pelzer on 18 August 2021 noting a fall at work and unwell for the previous eight days, with left elbow pain and pain on wrist flexion, occurring after the fall. A clinical entry of 27 August 2021 by Dr Taheri noted the fall from a ladder at work two weeks previously, ambulance to the St Vincent Hospital and CT and X-ray of the neck, spine, hand and elbow with no fracture. An entry dated 30 August 2021 noted left middle finger pain radiating to the left elbow and “chronic depression” and “never saw a psychologist”. An entry dated 11 September 2021 noted the patient had neck pain radiating to the left arm and paraesthesia, discussion of an MRI of the left elbow, wrist and hand and advised to have cervical MRI. An entry dated 13 September 2021 noted deterioration of left elbow and hand pain and paraesthesia and referral to an orthopaedic surgeon, Dr Sher. On 14 October 2021, an entry noted discussion of the result of an MRI of the cervical spine.

2. Clinical notes of the Auburn Medical Centre recorded a consultation with Dr Hamid on 2 November 2021 in which Tramal medication was prescribed, although no details were provided as to why. It was submitted by the applicant that this was a prescription for pain treatment. In a clinical entry dated 8 January 2022, Dr Aymal recorded lower back pain since 13 August 2021 after a fall from a ladder “resulting lower back injury and left elbow injury”. That entry noted “no new changes but unable to work in the field of painting” and also noted lower back pain radiating to the left lower leg “get worse with movements”. Lumbar back pain was noted as well as left epicondylitis.

1. Clinical entries of the Auburn Medical Centre on 22 April 2016 noted neck pain and back pain and prescribed Tramadol. On 1 May 2017 Dr Hamid noted neck pain and left elbow pain, and arranged cervical spine X-ray. An entry by Dr Hamid dated 5 May 2017 noted arrangements for an ultrasound of the left elbow. A report of 17 May 2017 by Dr Barber to Dr Hamid was of poor quality and was difficult to read, but referred to tennis elbow and appeared to recommend waiting to see if it resolved but if things were not better by 12 months then surgery might be considered but hopefully was not needed.

Dr Lim

1. Dr Lim, GP, provided reports dated 10 January 2022 and 12 May 2022.

2. In his report dated 10 January 2022, Dr Lim noted an initial presentation on 10 January 2022 following injuries to the neck, hand, elbow, and back sustained on 13 August 2021. He diagnosed cervical spine strain, left elbow contusion, mild medial epicondylitis, mild left tenosynovitis, lumbar spine strain, multiple degenerative disc disease and adjustment disorder. He noted a history of injuries after the applicant slipped and fell from a ladder at work and landed on the left side of his body. Dr Lim noted time off work and return to work after two weeks and thereafter working casually with a different employer. He noted that the applicant stopped working on 7 January 2022 as he could not cope with his lower back pain. He was of the opinion that the applicant sustained left hand, left elbow and lower back injuries after he slipped and fell from a ladder at work and that work was the main contributing factor for the injury. He noted that the applicant struggles with constant hand, elbow and lower back pain which impacts his physical capacity for work.

3. Dr Lim’s report dated 12 May 2022 to his earlier report. He was of the opinion that in the absence of alternative causation, of which is not aware, the applicant’s injuries relate to the reported incident of 13 August 2021.

Dr Calvache Rubio

1. Dr Calvache Rubio, GP, provided a report dated 15 March 2022. He is at the same practice as Dr Lim and provided a report in similar terms as the report noted above. He also noted that the applicant had trouble sleeping, and was stressed and worried. He noted neurosurgical review. He was of the opinion that the applicant was unfit for any physical work and does not have skills, education or experience in non-physical work and has limited English and poor computer skills.

Dr Khong

1. Dr Khong, neurosurgeon and spine surgeon, provided a report dated 4 March 2022 to Dr Calvache Rubio. He noted injury on 13 August 2021 when the applicant was on a ladder at least 1.5m high and somehow he lost balance and fell backwards onto a metal sheet and landed on his back, more towards the left side. He noted that the applicant complained of pain along the whole spine, left middle finger and left elbow and persistent neck pain, worse at night. He noted lower back pain radiating down the lateral left thigh to just past the knee. He noted brufen and voltaren for pain. Dr Khong noted an MRI of the cervical spine dated 25 February 2022 with mild degenerative changes and no cord or neural compression. He also noted an MRI of the lumbar spine dated 20 January 2022 with multilevel degenerative disc disease and no neural compression. Dr Khong diagnosed neck pain due to musculoligamentous strain and exacerbation of pre-existing degenerative changes in the cervical spine. He also diagnosed lower back pain due to musculoligamentous strain and exacerbation of pre-existing degenerative changes in the lumbar spine. He was of the opinion that the applicant presented with neck, intrascapular and lower back pain after a fall from a ladder and the applicant likely had some musculoligamentous strain and exacerbation of pre-existing degenerative changes in the cervical and lumbar spine. He recommended nonoperative management with physiotherapy and hydrotherapy.

Dr Soo

1. Dr Soo, orthopaedic surgeon, provided a medico-legal report to the applicant’s solicitors dated 2 March 2022. He recorded history that on 13 August 2021 the applicant was at work when he was standing on a ladder 1.5m high painting a roof and he slipped backwards of the ladder landing on the left side of his body. He noted that the applicant reported immediate pain to his neck, lower back, left elbow and left hand. He noted that the applicant had two weeks off work and then returned back to work on light duties for two weeks. He also noted that the applicant found another painting job but due to ongoing lower back, left elbow and left hand pain he ceased working completely on 7 January 2022. He also noted that prior to the accident on 13 August 2021 the applicant denied any previous history of pain or injury to his neck, lower back or left elbow or left hand. Dr Soo noted the applicant continued to experience ongoing constant pain to his lower back, left elbow, palm of the hand and to the middle and ring fingers and pain on and off to his neck, coming on at night and disturbing his sleep. He noted that prolonged periods of flexion such as looking at the phone can make the applicant’s pain worse. He noted functional limitations of standing capacity of 10 minutes, walking capacity of 10 minutes and driving capacity of 15 minutes. He noted the applicant currently taking analgesia in the form of brufen and voltaren and he does physiotherapy once a week.

2. Dr Soo diagnosed musculoligamentous injuries to the cervical and lumbar spine as a result of the fall and ongoing elbow pain from lateral epicondylitis to the elbow aggravated following the fall and ongoing pain to the middle and ring fingers of the left hand likely from ligamentous injuries following the fall. He was of the opinion that the applicant’s fall at work on 13 August 2021 and his employment as a painter for the respondent was the main contributing factor for the injuries to the applicant’s neck, back, left elbow and left hand. He was of the opinion that the applicant should avoid any repetitive bending and twisting of his back as well as no heavy lifting, pulling, pushing and the left elbow he should avoid any repetitive gripping activities with the left hand. He was of the opinion that the applicant had a moderate prognosis and that he had aggravated multiple areas of his body. He noted that the applicant worked as a painter which was a physically demanding job and he had tried to return to work but his injuries had forced him to stop working. He stated that he would hope that with appropriate treatment the applicant’s pain and symptoms will improve, however returning back to a physical job such as a painter may be difficult and may take a long time and he would hope that he will be able to eventually return back to his full function.

Medical certificates

1. Attached to the ARD were Certificates of Capacity dated 10 January 2022, 24 January 2022, 14 February 2022, 7 March 2022 and 4 April 2022. These were certificates completed by Dr Lim and Dr Calvache Rubio image the applicant was certified as having no capacity for work in relation to diagnoses of cervical spine strain, left elbow contusion, mild medial epicondylitis, mild left digit tenosynovitis, lumbar spine strain, and adjustment disorder consistent with injury on 13 August 2021 after the applicant slipped and fell from a ladder at work. No capacity for work was certified in those certificates until 23 May 2022. A St Vincent’s Hospital medical certificate signed by Dr Ryan and dated 13 August 2021 certified the applicant was suffering from “back pain” and was “unsuitable” for work from 13 August 2021 to 17 August 2021.

Reasons

1. In relation to the evidence of the applicant, in my view he provided evidence in cross examination which was consistent with his statements. He was consistent in stating that he fell backwards and this is also consistent with the work activities which he described as performing, including reaching forward and also to one side and also backwards whilst doing touch up work on the ceiling. In my view this was consistent with using a fully extended left arm for painting, including with respect to work around light fittings. I do not accept that the applicant fabricated his evidence.

2. In relation to the position of the ladder in an upright position after the incident, I accept the applicant’s evidence that there were two other tradesmen who witnessed the incident at the time. The applicant’s explanation that it was one of these tradesmen who repositioned the ladder in an upright position and picked up the paint bucket after the incident is also in my view consistent with the evidence. Mr Orlovic did not dispute that the applicant’s son was working on the same level as Mr Orlovic, as he stated that the applicant’s son approached him and informed him of the incident. He confirmed that the applicant’s son then ran off to the site of the incident on the other level. The phone call made by the applicant to his son is also consistent with the statement of Mr Hrabchak, who agreed that the applicant spoke minimal English and had to communicate through his son. The applicant’s evidence is also consistent with the period of time that elapsed between the time of the incident and the arrival of Mr Hrabchak at the scene of the incident, considering that the applicant first called his son, who then informed Mr Orlovic, who in turn called Mr Hrabchak, who subsequently took one to two minutes to arrive at the room where the incident took place, and who found the applicant’s son already at the scene. This in my view was a period of elapsed time which was consistent with the applicant’s evidence that it was one of the tradesmen who repositioned the ladder and the paint bucket. The applicant’s evidence is also consistent, whilst some caution should be exercised, with that of his son in this regard and it is also consistent with the discharge summary history of the St Vincent’s Hospital. I accept the applicant’s evidence in this regard.

3. It follows that I do not accept the evidence of Mr Orlovic and Mr Hrabchak in this regard. Neither man witnessed the incident. Both attended the incident scene at least one to two minutes after the incident. I do not place weight on the evidence of Mr Orlovic in which he implied that the applicant was fine and, in not wanting to get up, had not sustained injury. This is an assumption as to the existence or not of pain based upon the interpretation of Mr Orlovic, in the context of Mr Orlovic’s statement as director of the respondent that there had not been a workers compensation claim against his company since 2008. Mr Hrabchak, in stating that the applicant was just lying there and not trying to get up, also made an assumption as to the extent of pain based upon his own interpretation. I do not accept the assumptions of either witness in this regard.

4. However, Mr Hrabchak did provide evidence that the applicant appeared to be in pain after the incident and that he believed the applicant received medication from the ambulance officers to inhale. While Mr Hrabchak appears to have reinterpreted his evidence of the extent of the applicant’s apparent pain following being told by persons unknown that the applicant had sustained injury only to his “big finger”, nevertheless he did provide evidence of medication being provided by ambulance officers to the applicant, which in my view provides additional support to the applicant’s evidence that he fell off the ladder and sustained injury. Moreover, Mr Orlovic provided evidence that when he arrived at the scene of the incident the applicant’s head was resting on a hardhat, which in my view is not inconsistent with the incident having taken place, and also with assistance being provided to the applicant prior to Mr Orlovic’s arrival, such assistance not being recorded as being given by Amir Pakniyat, Mr Hrabchak or Mr Orlovic in their statements.

5. The respondent submitted that the explanation that the applicant provided in his later statement, that the ladder had been placed upright after the accident by one of two electricians who witnessed the incident, should not be accepted as it was not put forward in his earlier statement and it was simply manufactured evidence. I do not accept this submission. In my view, the applicant provided the explanation following the statement of Mr Orlovic dated 21 March 2022, in which the placement of the ladder was an issue. I accept the applicant’s explanation that he provided further details when asked to do so. His explanation is consistent with the elapsed time and with the evidence of his son, Amir Pakniyat that the ladder had been placed upright to make a clear area for first aid. The applicant in cross-examination in my view was steadfast and credible in his explanation of these circumstances.

6. As to the height of the ceiling on which he was painting at the time of the incident, the applicant was only able to state in cross-examination that its height was approximately that of the ceiling in the hearing room. Amir Pakniyat thought that it was three to four metres, that is somewhat higher. Given such indeterminate measurement, I accept that the applicant was doing his best and was credible in cross-examination as to his painting arm being fully extended, particularly where it was his evidence that he was taking care to reach and paint near light fittings.

7. In relation to injury, the St Vincent’s Hospital Discharge Summary is contemporaneous evidence of treatment and investigation in relation to a consistent history of a fall at work on 13 August 2021. That document recorded history of back, left elbow and left fourth digit pain following the fall off the ladder and also recorded investigation in the form of X-rays and also a CT of the thoracic and cervical spine. In my view this is consistent with injury to the cervical spine, lumbar spine, left elbow and left hand, including the ring finger. Subsequent clinical notes of August 2021 confirm left middle finger pain consistent with injury on 13 August 2021.

8. Although not disputed, clinical records and the report of Dr Lim of 10 January 2022 confirm the onset of adjustment disorder subsequent to injury sustained on 13 August 2021.

9. Both the treating neurosurgeon, Dr Khong, and the qualified orthopaedic surgeon, Dr Soo related the applicant’s cervical spine, lumbar spine, left elbow, left hand and left middle and ring finger conditions to the fall on 13 August 2021. Dr Khong was of the opinion that the neck and back pain were due to muscular ligamentous strain and exacerbation of pre-existing degenerative changes in the cervical and lumbar spines. Dr Soo was of the opinion that the applicant had musculoligamentous injuries to his cervical and lumbar spines as a result of the fall, and aggravation of lateral epicondylitis of the left elbow and ligamentous injuries to the middle and ring fingers of the left hand.

10. Both of these opinions are to be considered in light of the three clinical entries of 2016 and 2017. Neck pain, absent a history of injury, was noted on 22 April 2016 and 1 May 2017. Back pain was noted on one occasion on 22 April 2016, again with no history of injury. Left elbow pain was noted 1 May 2017 and 5 May 2017, with a report of Dr Barber on 17 May 2017, again absent a history of injury. Other than investigations and medication prescription at the time, there is no other evidence before me of any further treatment or consultation until the injury of 13 August 2021. Dr Khong considered radiological evidence in respect of the cervical and lumbar spines as indicating pre-existing degenerative conditions, which in my view is consistent with the history recorded in the clinical notes, which were exacerbated by the fall on 13 August 2021. Similarly, Dr Soo considered that the fall on 13 August 2021 aggravated a pre-existing lateral left epicondylitis, consistent with the history recorded in the clinical notes. This in my view provides a fair climate for the respective opinions in this regard of Dr Khong and Dr Soo, notwithstanding the absence of the history of the recorded complaints of pain and symptoms on three occasions in 2016 and 2017, a period of some four and five years respectively prior to the subject fall on 13 August 2021.

11. I find, pursuant to s 4(a) of the 1987 Act, that the applicant sustained injury by way of exacerbation of pre-existing degenerative changes of the cervical and lumbar spines, and of left lateral epicondylitis, and also injury to the left middle and ring fingers, as a result of the fall at work on 13 August 2021. I also find that the applicant has sustained an adjustment disorder as a result of the physical injuries that he sustained on 13 August 2021. I also find, pursuant to s 9A, that the applicant’s employment with the respondent on 13 August 2021 was a substantial contributing factor to the injuries to the cervical spine, lumbar spine, left elbow, left middle and ring fingers and also to the secondary adjustment disorder. This is based upon the opinions of Dr Soo, Dr Khong, Dr Lim and Dr Rubio.

12. Dr Soo, Dr Khong, Dr Lim and Dr Calvache Rubio were all of the opinion that the injuries arising from the fall on 13 August 2021 were continuing. This was supported by the clinical notes referred to above. The adjustment disorder was also regarded by Dr Lim and Dr Rubio as continuing, as noted in the Certificates of Capacity referred to above.

13. I do not accept the respondent’s submission that later employment, that is not with the respondent, resulted in the applicant ceasing work and hence represented injury pursuant to s 4(b)(ii) of the 1987 Act. It was submitted that this later employment was not adequately described and the respondent’s position was supported by the applicant’s statement that his back started to get worse with such later employment. I do not accept this submission. The applicant has not relied upon s 4 (b)(ii). There is no medical evidence to support this proposition. In my view the frank incident of 13 August 2021, based upon the medical evidence referred to above, resulted in the injuries found and such injuries are continuing. Dr Soo noted that the applicant attempted to return to work as a painter that due to his ongoing pain he was forced to cease working. The applicant’s statement that his pain started to get worse when he returned to work in my view did not suggest an alternative causative factor, for which there was in any event no medical support.

14. The respondent pointed to a period of some four months between the incident on 13 August 2021 and the onset of significant back pain in early January 2022, during which time he worked in other painting employment as noted above, and for which details of such employment duties and hours were said to be lacking. I do not accept this submission. The St Vincent’s Hospital Discharge Summary recorded a history of back pain on 13 August 2021, although it was the thoracic spine which was specifically noted to be tender to palpation on examination, but this in my view should be seen in the context of spinal examination for fractures following a significant fall. Hence, a lack of specific reference to lumbar pain was in my view not inconsistent with its presence, having regard to the more general notation of complaint of back pain, which was reflected in the medical certificate of the same date. The applicant’s statement that he stopped work in January 2022 because his back started to hurt a lot is in my view consistent with injury to his back in the thoracic and lumbar spine on 13 August 2021, and is supported by the opinions of Dr Soo, Dr Khong, Dr Lim and Dr Rubio.

15. In relation to capacity for work, Dr Soo noted that the applicant’s work as a painter was a physically demanding job and he had tried to return to work but his injuries have forced him to stop working. He expressed the hope that the applicant’s pain and symptoms will improve with appropriate treatment but returning back to a physical job such as a painter may be difficult and may take a long time. In my view, Dr Soo did not say that the applicant had some capacity for work. Although he did not expressly provide the opinion that the applicant had no capacity for work, he was of the opinion that the applicant’s injuries had forced him to stop working. Dr Lim and Dr Rubio have provided Certificates of Capacity in which the applicant was certified with no capacity for work. There is no medical evidence to the contrary. I find that the applicant has had, and continues to have, a present inability to return to work in his preinjury employment as a painter with the respondent since 6 May 2022. I also find that the applicant has had, and continues to have, a present inability to return to work in suitable employment since 6 May 2022.

1. If I am wrong as to the applicant’s present inability to return to work in suitable employment, then in my view, pursuant to s 32A of the 1987 Act, there is no suitable employment in relation to the applicant. He has poor English language skills, significant physical restrictions and his skills are otherwise limited to those of a painter, for which he has no certificate and no other qualification.

2. I find that the applicant has no current work capacity and has had no current work capacity since 6 May 2022 as a result of the injury on 13 August 2021.

3. The applicant claimed pre-injury average weekly earnings of $1,740. This is not disputed by the respondent. The claim is pursuant to s 37 of the 1987 Act. The applicant is entitled to weekly compensation from 6 May 2022 to date and continuing at the rate of 80% of $1,740, being $1,392 per week. The applicant is entitled to a general order pursuant to s 60 of the 1987 Act.