Saqir v ISS Property Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Saqir v ISS Property Services Pty Ltd [2022] NSWPIC 454
APPLICANT:	Eeman Saqir
RESPONDENT:	ISS Property Services Pty Limited
MEMBER:	Anthony Scarcella
DATE OF DECISION:	11 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Left arm, left thumb and fingers disputed under Section 4(a) of the Workers Compensation Act 1987 (1987 Act); entitlement to weekly benefits and medical and related expenses disputed; the value of contemporaneous evidence; the weight to be given to expert evidence; Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes, Hancock v East Coast Timbers Products Pty Ltd, Paric v John Holland (Constructions) Pty Ltd, Makita (Australia) Pty Ltd v Sprowles and South Western Sydney Area Health Service v Edmonds considered and applied; Held — the applicant did not suffer injuries to the left arm, left thumb and fingers arising out of or in the course of her employment with the respondent on 8 March 2021 within the meaning of sections 4(a) and 9A of the 1987 Act; award for the respondent in respect of the applicant’s claimed injuries to the left arm, left thumb and fingers on 8 March 2021.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant did not suffer injuries to the left arm, left thumb and fingers arising out of or in the course of her employment with the respondent on 8 March 2021 within the meaning of ss 4(a) and 9A of the Workers Compensation Act 1987. The Commission orders: 2. Leave is granted to the applicant to amend the Application to Resolve a Dispute to plead injuries to the left arm, left thumb and fingers only and to plead the claim for weekly compensation from 2 December 2021 and ongoing under s 37 of the Workers Compensation Act 1987. 3. Award for the respondent in respect of the applicant’s claimed injuries to the left arm, left thumb and fingers on 8 March 2021.

STATEMENT OF REASONS

BACKGROUND

The applicant, Eeman Saqir, is a 51-year-old woman who was employed by the respondent, ISS Property Services Pty Limited (ISS), as a cleaner.
On 8 March 2021, Ms Saqir alleges that, during the course of her employment duties, she was cleaning a bathroom. Soap had been spilt on the floor by a leaking soap dispenser. As she was navigating her way around the bathroom, she slipped and fell landing heavily onto her left side. As she fell, the right side of her head struck the bucket she was using and caused her to lose consciousness. As a result, she sustained injuries to her left arm, left thumb and fingers.
Ms Saqir lodged a claim for benefits under the Workers Compensation Act 1987 (the 1987 Act) with ISS.
On 11 November 2021, ISS issued a dispute notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying injury within the meaning of ss 4 and 9A of the 1987 Act; denying liability under s 33 of the 1987 Act; and denying an entitlement to reasonably necessary medical and related treatment expenses as a result of injury within the meaning of s 60 of the 1987 Act.[1]
[1] Reply at pages 62-66.
On 4 February 2022, Ms Saqir, through her lawyers, requested a review of the decision contained in ISS’s dispute notice dated 11 November 2021 under s 287A of the 1998 Act.[2]
[2] Application to Resolve a Dispute at page 32.
On 1 March 2022, ISS issued the outcome of its review under s 287A of the 1998 Act maintaining its decision to deny liability.[3]
[3] Reply at pages 67-73.
Ms Saqir, through her lawyers, lodged an Application to Resolve a Dispute (ARD) dated 29 April 2022 in the Workers Compensation Division of the Personal Injury Commission (the Commission) claiming weekly benefits compensation from 2 December 2021 and ongoing under s 37 of the 1987 Act (incorrectly referred to as s 38) and reasonably necessary medical and related expenses under s 60 of the 1987 Act as a result of the injury sustained in the course of her employment with ISS on 8 March 2021.

ISSUES FOR DETERMINATION

The parties agreed that the issue for my determination is whether Ms Saqir sustained a personal injury to her left arm, left thumb and fingers on 8 March 2021 within the meaning of ss 4(a) and 9A of the 1987 Act.

Matters previously notified as disputed

The issues in dispute were notified in the dispute notices referred to above.

Matters not previously notified

No other issues were raised.

PROCEDURE BEFORE THE COMMISSION

The parties participated in a conciliation conference/arbitration by audio-visual link on 14 July 2022. Mr Bruce McManamey of counsel appeared for Ms Saqir, instructed by Ms Bianca Azzopardi, solicitor. Mr Thomas Murray, solicitor appeared for ISS. Mr Ismael Ayyoubi, an Arabic speaking interpreter, was also present to assist Ms Saqir when required.
During the conciliation phase the parties agreed as follows:
(a) the claim for weekly compensation is made under s 37 of the 1987 Act from 2 December 2021 and ongoing;
(b) the pre-injury average weekly earnings are $878.43 and for the purposes of s 37 of the 1987 Act, 80% of that figure amounts to $702.74;
(c) if there is a finding of injury to the left arm, left thumb and fingers, incapacity is not in dispute, and
(d) if there is a finding of injury to the left arm, left thumb and fingers, the making of a general order under s 60 of the 1987 Act is appropriate.
I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertion made in the information supplied. I 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 had sufficient opportunity to explore settlement and that they were 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)    ARD dated 29 April 2022 and attached documents;
(b)    Reply to ARD (Reply) dated 24 May 2022 and attached documents, and
(c)    Application to Admit Late Documents (AALD) lodged by ISS dated 7 July 2022 and attached documents, except that ISS does not require me to consider the clinical records of Advance Liverpool Medical Centre.

Oral evidence

Neither party sought leave to adduce oral evidence from or to cross-examine any witness.

Ms Eeman Saqir’s evidence

In evidence there are statements by Ms Saqir dated 14 July 2021[4] and 22 April 2022.[5] I will now refer to the relevant parts of those statements.
[4] ARD at pages 2-12.
[5] ARD at pages 13-18.
Ms Saqir stated that she commenced permanent part-time employment as a cleaner with ISS in August 2019. ISS was contracted to clean the Liverpool premises of Family and Community Services (FACS). Ms Saqir’s duties were to clean the bathrooms in the FACS premises. She worked from 4.00pm to 10.40pm, five days per week.
Ms Saqir stated that, whilst mopping the ceramic tiled floor in the level 2 female bathroom on 8 March 2021, she slipped and fell backwards to the floor onto her left side and braced herself with her arms to reduce the impact of the fall. She felt initial pain down the whole of her left side, being her leg, hip and body. She was unconscious when she fell to the floor because her head struck a plastic bucket. She subsequently became aware that she had a cut on her forehead. A work colleague called an ambulance and she was conveyed to Bankstown-Lidcombe Hospital (Bankstown Hospital).
Ms Saqir stated that she explained to Bankstown Hospital staff that she had fallen onto the left side of the body, hit her head and lost consciousness. Hospital staff arranged for her to undergo a CT scan of her head, neck and lower back. She was informed that the findings did not reveal any substantial pathology but she was kept for observation. Whilst at the hospital, her entire body was sore and she was in agony. She was given pain relieving medication and was advised to rest. She was discharged the following day.
Ms Saqir stated that she consulted her general practitioner, Dr Raad Shamoun, on 11 March 2021 complaining of a sharp pain in her lower back. Dr Shamoun advised her to continue taking pain relieving medication and anti-inflammatory tablets and issued her with a medical certificate for four weeks. He also referred her to Ms Wendy Cheng, physiotherapist for treatment to her neck and lower back.
Ms Saqir stated that, over the next week, she noticed the pain and weakness in her left forearm gradually worsening. She attributed the pain and weakness in her left forearm to the fall but assumed that it would resolve with rest. However, after a few days, she lost all sensation in her left thumb and was unable to move it.
Ms Saqir stated that she returned to work about four weeks after the incident on 8 March 2021. She wore a brace on her left forearm and took painkillers after she returned to work, as advised by Dr Shamoun. She performed her normal duties but her left forearm and left thumb were in pain. Two weeks after returning to work, she was unable to move her left thumb. There was an infection in her nerves that caused the pain. Three weeks after returning to work, the pain in her left thumb and left forearm was so intense and severe that she could not continue working. She has not worked since.
Ms Saqir stated that, on or about 26 April 2021, she consulted Dr Shamoun and explained the worsening pain in her left forearm and that she had never experienced anything like it before. Dr Shamoun referred her for an ultrasound of her left arm, which she underwent on 27 April 2021.
Ms Saqir stated that, on 29 April 2021, she attended Liverpool Hospital due to the worsening sharp and shooting pain in her left forearm. She had a lump on her left arm that she attributed to the fall. She was prescribed Endone by hospital staff and discharged.
Ms Saqir stated that after her discharge from Liverpool Hospital she consulted Dr Shamoun for further treatment to her left arm. He prescribed her nerve and pain medication and referred her to a neurologist, Dr Abhay Ram Venkat, who she first consulted on 25 May 2021.
Ms Saqir stated that Dr Venkat referred her for an MRI scan of her left arm, which she underwent on 11 July 2021. He also referred her to a hand surgeon, Dr Roland Jiang, for further treatment. The appointment with Dr Jiang, scheduled for 11 October 2021, was cancelled due to COVID-19 restrictions.
Ms Saqir stated that on about 11 November 2021, ISS denied her entitlement to weekly benefits and medical treatment and therefore, she had been unable to consult with any referred specialists for her left forearm and left thumb injury. As a result, her symptoms worsened and impeded her ability to recover.
Ms Saqir stated that she continues to experience constant pain in her left forearm and left thumb. She also has pain throughout her left elbow and left hand. She experiences stiffness and soreness in her neck and lower back.
Ms Saqir stated that her current treatment consists of pain medication and consultations with Dr Shamoun on a monthly basis.
Ms Saqir provided a detailed list of her ongoing restrictions and disabilities.[6]
[6] ARD at pages 15-17.
Ms Saqir stated that she is left hand dominant. She has been certified as totally incapacitated for work from 29 April 2021 to date.

The treating medical evidence

The Bankstown Hospital clinical records noted that Ms Saqir attended on 8 March 2021 and was discharged on 9 March 2021.
The Bankstown Hospital clinical records noted the following history provided by Ms Saqir:
“Patient at work between 4-5pm - cleaner, was mopping floors
Slipped on soapy floor (ceramic tile) and landing on left side - during which her R forehead struck bucket and then her occipital region struck a door
Patient reports LOC after first head strike to bucket - remembers up until this and then remembers waking up to coworkers saying to wake up
Patient denies nausea or vomiting post fall
denies being able to ambulate afterwards (triage note reports patient ambulated at scene) patient denied neck pain
reports headache to R forehead region and some pain around R eye denies headache to posterior head
patient also reporting pain to L spine + L hip, knee and foot dorsum reports pain on movement of this areas
reports landed on her left side”^[7]
[7] ARD at page 70 and Reply at page 21.
The Bankstown Hospital clinical records noted the following on examination of Ms Saqir:
“Obs BTF afebrile
Alert and oriented
PEARL 3mm bilat
Reports mild C spine tenderness and pain at extremes of ROM
CNs grossly intact
Peripheral neuro intact - only possible numbness to L4 dermatome (medial calf) of L leg, though this was transient
HSDNM
Chest clear
Abdo SNT
Lumbar spine midline tenderness
L hip trochanteric tenderness
L knee tenderness around joint margin and suprapatellar - nil overt swelling or erythema (also popliteal fossa tenderness)
L foot dorsum tender with slight erythema
R side NAO”[8]
[8] ARD at pages 80-81 and Reply at pages 31-32.
Under the heading “Impression”,[9] the Bankstown Hospital clinical records noted a traumatic fall with a head strike with multiple possible areas of injuries including the head, the spine, the pelvis, the hip and the left lower lobe of the lung. It was also noted that Ms Saqir would require a collar and imaging.
[9] ARD at page 81 and Reply at page 32.
The Bankstown Hospital clinical records noted that Ms Saqir underwent CT scans of her brain, cervical spine, pelvis, lumbosacral spine and left hip. She also underwent X-rays of her chest, left knee, left foot and left ankle. The medical imaging revealed no abnormalities.
On 9 March 2021, Ms Saqir was discharged home from Bankstown Hospital on paracetamol and Nurofen and advised to return if she had any concerns.
The Bankstown Hospital clinical records did not refer to any complaints of pain or symptoms in Ms Saqir’s left arm, left thumb and fingers of the left hand.
On 11 March 2021, Ms Saqir consulted her usual general practitioner, Dr Shamoun of Advance Liverpool Medical Centre. Ms Saqir complained of back pain following three days earlier when she fell at work on a wet slippery floor and was conveyed to Bankstown Hospital. Dr Shamoun noted in his clinical records that the CT scan of Ms Saqir’s lumbar spine and other X-rays were all “ok”.[10] Dr Shamoun noted in his clinical records that Ms Saqir was limping and that there was periorbital swelling around her right eye with some blurred vision. He noted that she was sleeping a lot and was on Panadeine Forte. He issued her with a medical certificate from 11 March 2021 to 19 March 2021 and referred her to an optometrist. There was no reference in the clinical records dated 11 March 2021 to any complaints of pain or symptoms in Ms Saqir’s left arm, left thumb and fingers of the left hand.
[10] ARD at page 110.
On 19 March 2021, Ms Saqir consulted Dr Shamoun complaining of ongoing back pain. Dr Shamoun referred her to Ms Cheng for physiotherapy and prescribed Panadeine Forte and issued a medical certificate to 26 March 2021.[11] There was no reference in the clinical records dated 19 March 2021 to any complaints of pain or symptoms in Ms Saqir’s left arm, left thumb and fingers of the left hand.
[11] ARD at pages 110-111.
On 28 March 2021, Ms Saqir consulted Dr Shamoun advising that she felt 50% better. Dr Shamoun ceased physiotherapy, prescribed Panadeine Forte and issued a medical certificate to 1 April 2021.[12] There was no reference in the clinical records dated 28 March 2021 to any complaints of pain or symptoms in Ms Saqir’s left arm, left thumb and fingers of the left hand.
[12] ARD at page 111.
On 26 April 2021, Ms Saqir consulted Dr Shamoun complaining of left forearm pain near her lateral epicondyle. Dr Shamoun observed a slightly swollen muscle and noted that there had been no injury or no history of the same before. He also noted that Ms Saqir was using a bandage and taking Panadol Osteo. Dr Shamoun referred her for an ultrasound of her left forearm.[13]
[13] ARD at page 111.
On 27 April 2021, Ms Saqir underwent an ultrasound of her left forearm, which was interpreted by Dr Ahmed Mayat, radiologist.[14] Dr Mayat observed that the radial nerve demonstrated focal thickening and increased vascularity in the region of interest, suggestive of a possible neuritis. He recommended that an MRI scan to further assess the left forearm may be of value.
[14] ARD at pages 48-49.
On 27 April 2021, Ms Saqir consulted Dr Shamoun and they discussed the ultrasound findings of radial neuritis. Ms Saqir complained of severe pain. Dr Shamoun referred her to a specialist, Dr Shareef Dowla and prescribed Endone 5mg tablets.[15]
[15] ARD at page 112.
On 29 April 2021, Ms Saqir consulted Dr Shamoun advising that she had consulted the specialist (presumably Dr Dowla), who advised that there was no need for surgery at that stage. Dr Shamoun noted in his clinical records that Ms Saqir had been given Endone at Liverpool Hospital on the previous night and that she now required a WorkCover certificate because the injury was linked to the one that occurred back in March 2021.[16] Dr Shamoun issued a certificate of capacity dated 29 April 2021 that provided a diagnosis of left forearm pain – radial nerve injury and certified Ms Saqir as having no current work capacity for any employment from 29 April 2021 to 29 July 2021.[17]
[16] ARD at page 112.
[17] Reply at pages 59-61.
There were no clinical records from Liverpool Hospital in evidence. There were no reports or any clinical records from Dr Dowla in evidence.
On 3 May 2021, Ms Saqir consulted Dr Shamoun complaining of left forearm pain and reporting that she had consulted “the nerve doctor, he believes the nerve is ok.”[18] Dr Shamoun noted that Ms Saqir thought her left thumb was getting weaker. On examination, Dr Shamoun observed limited movement of the left thumb; non-tender joints; and weakness on power testing. He noted that Ms Saqir was now taking Lyrica 25mg capsules and felt it provided better pain control. Dr Shamoun referred her to a specialist, Dr Bassel Hassan.
[18] ARD at page 112.
On 11 May 2021, Ms Saqir consulted Dr Shamoun complaining of a lot of pain in her left forearm. Dr Shamoun noted that she was taking Lyrica, Endep and Panadeine Forte. He also noted that she was to consult “the Nerve Doctor ASAP (2 weeks)”.[19]
[19] ARD at page 113.
On 18 May 2021, Ms Saqir consulted Dr Shamoun advising that the left forearm pain was still present. Dr Shamoun noted radial nerve compression and left radial neuritis and concluded that she required a back slab. Dr Shamoun also noted that Ms Saqir was soon to consult a specialist.[20]
[20] ARD at page 113.
On 25 May 2021, Ms Saqir consulted Dr Venkat, consultant neurologist, who took a history that she had suffered a fall about six weeks earlier (actually 11 weeks earlier) that had resulted in significant left forearm pain as well as paraesthesia and had been treatment resistant to high doses of Lyrica, Voltaren, Endep and localised measures such as compression and creams. He noted that she had sustained a heavy fall in the bathroom onto her left hand side and was now mobilising with a sling.
On the same date, Dr Venkat conducted nerve conduction tests and concluded that such testing was consistent with a primarily sensory radial nerve palsy without any evidence of median nerve or ulnar nerve dysfunction. There was mild denervation of the radial motor fibres and sparing of the radial sensory branch which could sometimes be seen. The thumb flexion/extension weakness was thought to be secondary to tendon rupture as opposed to nerve related weakness.[21]
[21] ARD at pages 50-51.
On 25 May 2021, Dr Venkat observed noticeable swelling in the lateral forearm and significant weakness in thumb abduction and extension but that flexion was relatively intact. He observed a sensory nerve loss in the radial nerve distribution in the snuffbox and posterior forearm and within the limitations of weakness finger extension, flexion, abduction was generally 4-/5. Wrist extension as well as wrist flexion was also 4-/5 as was brachioradialis strength. Of note, the reflexes were preserved in the left upper limb and the triceps strength was strong. He was not able to appreciate a sensory loss above the elbow.

Dr Venkat’s impression was one of radial nerve palsy secondary to swelling and compression in the posterior forearm and the possibility of tendon rupture causing thumb weakness. He recommended an MRI scan of the left elbow, left forearm and left brachial plexus to ascertain whether there was evidence of a tendon rupture. He also recommended referral to a hand surgeon. Dr Venkat suspected that the radial nerve palsy would slowly improve over time once the inflammation and swelling settled down. He opined that it was in Ms Saqir’s favour that there was no significant denervation in the radial innervated motor muscles.[22]
[22] ARD at pages 46-47.
On 25 May 2021, Ms Saqir also consulted Dr Shamoun advising that her left forearm pain was somewhat better.[23] Dr Shamoun noted the reason for the visit as left forearm neuropathic pain and prescribed Lyrica 75mg capsules.
[23] ARD at pages 113-114.
On 2 June 2021, Ms Saqir consulted Dr Shamoun complaining of a lot of pain in her right (probably a typographical error) forearm. Dr Shamoun prescribed Endone 5mg tablets.[24]
[24] ARD at page 114.
On 23 June 2021, Ms Saqir consulted Dr Shamoun complaining of left thumb weakness. Dr Shamoun referred her to Dr Jiang, hand surgeon and prescribed Endone 5mg tablets.[25]
[25] ARD at pages 114-100.
On 2 July 2021, Ms Saqir consulted Dr Shamoun complaining of left forearm pain and complaining that her thumb was not working well. Dr Shamoun noted that the hand surgeon (Dr Jiang) was not available and that she needed to consult another hand surgeon. Dr Shamoun referred Ms Saqir to Dr Mark Rider, hand surgeon.[26] There were no reports or any clinical records from Dr Rider in evidence.
[26] ARD at page 115.
On 5 July 2021, Ms Saqir consulted Dr Shamoun, who issued another certificate of capacity.[27] The certificate of capacity provided a diagnosis of left radial nerve damage, pain in the left forearm and left thumb weakness. It certified Ms Saqir as having no current capacity for any employment from 5 July 2021 to 5 October 2021.[28]
[27] ARD at page 115.
[28] ARD at pages 54-56.
On 9 July 2021, Ms Saqir underwent a brachial plexus, left arm and left forearm MRI scan by Dr Niranjan Ganeshan, radiologist.[29] The clinical indication provided to the radiologist was one of right radial sensory loss. Dr Ganeshan concluded:
“Focal area of abnormality centred on the posterior interosseous nerve in the region of the arcade of Frohse closely associated with the two heads of the supinator muscle belly. Focal increased T2 signal with peripherally enhancing focus which appears to be sitting along the course of the nerve.
There is mild adjacent oedema within the supinator muscle belly and there is distal extensor compartment oedema which may reflect early denervation change. At this stage, it is difficult to know what the exact pathology near the arcade of Frohse is.
Given the history of trauma, it is possible that this reflects a haematoma with granulation tissue which happens to be centred on the posterior interosseous nerve. The findings would be atypical for a focal neuritis. The possibility that there is in fact an underlying mass lesion could not entirely be excluded at this stage.
Ultimately exploration of the nerve may be warranted.”[30]
[29] ARD at pages 52-53.
[30] ARD at page 53.
On 9 July 2021, Dr Ganeshan also performed an MRI scan of Ms Saqir’s right thumb. It is not clear whether the referral to the right thumb was a typographical error or whether the right thumb was referred to by mistake. The clinical indication provided to the radiologist was one of post trauma with right thumb abduction weakness. The thumb scanned normally.[31]
[31] ARD at page 53.
On 19 July 2021, Ms Saqir consulted Dr Shamoun and discussed the MRI scan findings.[32]
[32] ARD at pages 115-116.
Between 20 July 2021 and 5 October 2021, there were no consultations recorded in the Advance Liverpool Medical Centre clinical records with Dr Shamoun in respect of complaints of left forearm symptoms by Ms Saqir.
On 6 October 2021, Dr Shamoun issued Ms Saqir with a certificate of capacity certifying her as having no current work capacity for any employment from 6 October 2021 to 6 January 2022.[33]
[33] ARD at pages 63-65.
Between 7 October 2021 and 20 December 2021 (the latter being the date of the last consultation in evidence), there were no consultations recorded in the Advance Liverpool Medical Centre clinical records with Dr Shamoun in respect of complaints of left forearm symptoms by Ms Saqir.

The forensic medical evidence

Associate Professor Paul Miniter: 19 July 2021

On 19 July 2021, Ms Saqir consulted Associate Professor Paul Miniter, orthopaedic surgeon, at the request of ISS. In evidence, there is a report by Associate Professor Miniter dated 19 July 2021. I will now refer to the relevant parts of that report.
Associate Professor Miniter took a history of Ms Saqir’s injury and subsequent treatment that was, in the main, consistent with the evidence. He considered that documentation from Bankstown Hospital was crucial because, as far as he could determine, there was no injury to the left upper extremity “in the initial phase of this matter”.[34]
[34] Reply at page 3.
Associate Professor Miniter noted that Ms Saqir had a month off work and that when she returned to work she began to experience a sensation of fullness in the left forearm.
Associate Professor Miniter referred to the MRI scan performed on 9 July 2021 and reported on 11 July 2021 and observed that there was no discrete mass identified but that there was an area with altered signal between two heads of supinators in the region of the posterior interosseous nerve. He noted that the size of the lesion was approximately 11cm x 4cm x 2.7cm. The areas were those of T2 hyperintensity and there appeared to be no obvious muscle tear. However, there was a swelling adjacent to the area, increased within the superficial fibres of the supinator. There was oedema within the extensor compartment musculature more distantly including extensor or digitorum, extensor or pollicis and extensor carpi ulnaris.
Associate Professor Miniter observed on examination that Ms Saqir was unable to extend the left thumb and unable to abduct the thumb away from the palm. He found this most unusual because such motor function is observed by the median nerve and not the radial posterior interosseous nerves.
Associate Professor Miniter observed that the matter was unusual, in that, when Ms Saqir returned to work, her initial complaints were not those of forearm pain. He thought it crucial to obtain information from Bankstown Hospital in relation to her original presentation.
Associate Professor Miniter opined that the injury described by Ms Saqir was not consistent with her current complaints. Further, he observed:
“I am not able to determine the course of this matter at this stage. I believe the radiology needs to be reviewed and we need to think carefully about the most appropriate presentation especially the lack of consistency between her original presentation and the subsequent development of left arm problems.”[35]
[35] Reply at page 5.
Associate Professor Miniter did not believe that employment was the likely major contributing factor to Ms Saqir’s current complaint.
Associate Professor Miniter observed that there appeared to be features of Ms Saqir’s clinical examination that were consistent with voluntary exaggeration. He was not certain that the matter was entirely genuine based on her presentation but the MRI findings were compelling.

Associate Professor Paul Miniter: 13 October 2021

On 13 October 2021, Associate Professor Miniter provided a supplementary report at the request of ISS.[36] I will now refer to the relevant parts of that supplementary report.
[36] Reply at pages 9-12.
Associate Professor Miniter was provided with additional information and commented as follows:
“Given that we asked for hospital records and these have been made available, the admission being on 8^th March 2021, discharge on the following day. I note that the notes from the doctor in question are clear and this indicates that she fell on to her left hand side and that the complaints were those of her head being struck and that she had no neck pain and that she had some discomfort in the left side of the hip and lower back. The knee and dorsum of the foot are also mentioned. In the correspondence they have mentioned that she has [sic - is] diabetic and she has hypercholesterolaemia. She takes metformin and Saxagliptin as well as simvastatin. There is no mention about left forearm at any time during the consultation and I note that she had a CT scan of the pelvis and of the lumbar spine and was then discharged. It would seem therefore very likely that the matter in question that is the development of the pain in the left forearm is entirely unrelated to the fall, which is said to have occurred in the workplace. The file from the hospital admission has been instrumental to determine that the two matters are unrelated.
Therefore, I would indicate to you that whatever treatment is necessary is not required in relation to the workplace fall. The conditions and nature of her employment are also not associated with her presentation.”[37]
[37] Reply at page 11.

Dr Yuk Kai Lee: 25 January 2022

On 17 January 2022, Ms Saqir consulted Dr Yuk Kai Lee, orthopaedic surgeon, at the request of her lawyers. In evidence, there is a report by Dr Lee dated 25 January 2022.[38] I will now refer to the relevant parts of that report.
[38] ARD at pages 34-41.
At the time of preparing his report, it appears that Dr Lee did not have a copy of the Advance Liverpool Medical Centre clinical records. He did not appear to have a copy of the MRI scan report dated 11 July 2021 and if he did, he did not refer to it. He did have access to the Bankstown Hospital clinical records, Associate Professor Miniter’s reports, Dr Venkat’s report dated 25 May 2021 and the certificates of capacity.
Dr Lee took a history of injury from Ms Saqir that was consistent with the evidence. He observed from the documentation provided that there was some confusion as to when Ms Saqir started to feel pain in her left arm. He noted that Ms Saqir stated that she started noticing pain in the left arm region about two weeks after the workplace fall. She told him that she also hurt her back when she fell. There was pain in the back, the left leg and some pain down her left arm. After resting for two weeks, she tried to return to work but could not cope. She left work after another 2.5 weeks and is not working now. Ms Saqir’s general practitioner referred her to a neurologist and she was diagnosed with neuritis of the posterior interosseous nerve. Apart from the pain, she was unable to extend her thumb. She was also referred to a surgeon but has not got around to see the specialist yet.
Dr Lee recorded Ms Saqir’s main complaint as pain over the left forearm and an inability to extend her left thumb. The left hand was also weak. She had mild back pain and occasional headache. The pain woke her at night. Coughing and sneezing did not aggravate her neck. He noted that Ms Saqir was left-handed.
Dr Lee observed on examination that there was some diffuse decreased sensation over the radial side of the left forearm; there was only grade 1 power of the thumb extensor; there was no other apparent weakness in the left upper limb; the forearm at its widest point on the right side measured 25cm and the left side measured 23cm; and movement of the shoulders were normal. Dr Lee did not detect any evidence of tendon rupture. However, in order to be certain, he recommended an MRI scan of the forearm to exclude or confirm tendon injury and pinpoint the location of nerve involvement. It would seem from the latter observation that Dr Lee did not have access to the MRI scan report dated 11 July 2021 or films.
Dr Lee listed the medical imaging made available to him, which included the CT scans of the brain, cervical spine and lumbar spine undertaken at Bankstown Hospital; the left forearm ultrasound dated 27 April 2021; and the neurophysiology report dated 25 May 2021.
In respect of diagnosis, Dr Lee concluded:
“The diagnosis is most likely a radial tunnel syndrome. It is difficult to completely explain the mechanism of injury. I questioned her about whether when she woke up, she noticed that her arm was on some pressured area and she could not recall. It is possible that maybe when she lost consciousness, she put pressure on her left forearm resulting in compression of the radial nerve.”[39]
[39] ARD at page 37 at [2a)].
In respect of causation, Dr Lee opined that, as Ms Saqir’s nerve injury appeared shortly after her fall, it was reasonable to assume that the injury had caused the nerve damage and that employment was the main contributing factor.
Dr Lee agreed with Associate Professor Miniter that the description of Ms Saqir’s injury cannot fully explain the symptoms in her left thumb. However, there was no other good explanation as to what caused the weakness in the thumb. Given the timeline of events, it would be reasonable to consider that the weakness was related to the accident at work.
Dr Lee opined that, if Ms Saqir did not recover from the left thumb weakness, her work capacity would be greatly reduced because such weakness is in her dominant hand. He recommended that Ms Saqir be referred to a hand surgeon to consider releasing the radial tunnel. He opined that the injury was probably to the deep branch of the posterior interosseous branch of the radial nerve and noted that Dr Venkat also documented involvement of the sensory branch.
In respect of prognosis, Dr Lee opined that it was uncertain at this stage and depended on whether Ms Saqir responded to surgical treatment.

Associate Professor Paul Miniter: 29 June 2022

On 29 June 2022, Associate Professor Miniter provided a file review and report at the request of ISS’s lawyers.[40] I will now refer to the relevant parts of that report.
[40] ISS’s AALD dated 7 July 2022.
Associate Professor Miniter reviewed the report of Dr Lee. He noted that it appeared that Dr Lee did not have access to the Advance Liverpool Medical Centre clinical records. Associate Professor Miniter opined that the matter, as it stood, did not have a clear explanation and that it was inappropriate to make observations of delayed onset of symptoms in relation to a fall such as that sustained by Ms Saqir.
Associate Professor Miniter was unable to identify a diagnosis that explained the symptom complex. He agreed with Dr Lee that, from an orthopaedic perspective, an MRI scan of the forearm should be undertaken. Associate Professor Miniter seemed to have forgotten about the MRI scan report dated 11 July 2021. However, he again drew attention to the fact that the left forearm and left thumb issues did not occur at the time of the original fall and that there was no evidence that an injury occurred to the left arm. Having reviewed Dr Lee’s report, Associate Professor Miniter maintained his opinion for the reasons stated above.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties. I will refer to the parties’ submissions under each relevant issue for determination set out below.

Ms Saqir’s submissions

I will now refer to Ms Saqir’s principal submissions in relation to this issue.
Ms Saqir’s evidence is that, on 8 March 2021, she had a fall at work. She fell on her left side, struck her head, cut her forehead and lost consciousness. She attended Bankstown Hospital, where they focussed on her head, neck and lower back. Ms Saqir’s left forearm problem developed as a more noticeable problem over the passage of time.
The Bankstown Hospital clinical notes recorded a description of the mechanism of Ms Saqir’s fall in the admission summary, which was consistent with her evidence. The description included that she landed on her left side when she fell. She underwent CT scans of her brain, cervical spine, pelvis, lumbosacral spine and left hip. The scans revealed no abnormality. She was discharged home and prescribed Endone and paracetamol, which would have affected her perception of pain.
Significantly, the Bankstown Hospital clinical notes did not record that Ms Saqir underwent a full physical examination. There is a record of the complaints of pain and of the investigations undertaken. However, nowhere in the clinical records was there evidence that anyone carried out an examination recording a laceration or bruising. This was not surprising in a busy public hospital in the middle of the COVID-19 pandemic and its related problems, including being short-staffed. Hospital staff dealt with the main injuries to Ms Saqir’s head, neck and lower back. The lack of evidence in respect of a full examination is significant in respect of the weight Associate Professor Miniter placed on the hospital’s clinical notes.
Ms Saqir conceded that her initial consultations with Dr Shamoun following her fall were concerned about her head and lower back. Ms Saqir’s first report of left forearm pain was in her consultation with Dr Shamoun on 26 April 2021, with a physical manifestation, being a slightly swollen muscle. There was no reference to a new injury.
Dr Shamoun referred Ms Saqir to Dr Venkat, who opined that the left thumb weakness was not related to the median nerve palsy but more likely secondary to a tendon or muscle damage of the abducted pollicis longus or extensor pollicis longus. Such opinion supported a clear traumatic cause.
Dr Venkat referred Ms Saqir for a brachial plexus, left arm and left forearm MRI scan. The radiologist relevantly concluded that, given the history of trauma, it was possible that the findings on MRI reflected a haematoma with granulation tissue that happened to be centred on the posterior interosseous nerve. There was no other history of trauma prior or since that which occurred on 8 March 2021, which would have caused this injury.
Ms Saqir relied on the opinion of Dr Lee. Dr Lee took a history that Ms Saqir started noticing pain in the left arm region about two weeks after her fall, which was consistent with her evidence and the Advance Liverpool Medical Centre clinical records.
On examination, Dr Lee recorded the measurements of Ms Saqir’s right forearm at 25cm and her left forearm at 23cm. As Ms Saqir is left-handed, such an observation suggested that there was some wasting in her left forearm and was supportive of Ms Saqir having sustained a physical injury or condition.
In respect of a diagnosis and the issue of causation, Dr Lee provided a considered opinion. Dr Lee opined that Ms Saqir’s diagnosis was most likely that of a radial tunnel syndrome. He found it difficult to completely explain the mechanism of injury but thought it possible that when Ms Saqir lost consciousness, she put pressure on her left forearm resulting in compression of the radial nerve. Dr Lee opined that, as her nerve injury appeared shortly after her fall, it was reasonable to assume that the injury had caused the nerve damage. He noted that the description of the injury could not fully explain the symptoms in Ms Saqir’s left thumb. However, there was no other good explanation as to what caused the weakness of the thumb and given the timeline of events, it would be reasonable to consider that the weakness was related to the work incident.
In the certificates of capacity issued by Dr Shamoun, he supported the causal connection by relating Ms Saqir’s incapacity to the left forearm, namely, left radial nerve damage, pain in the left forearm and left thumb weakness. As Dr Shamoun had been seeing Ms Saqir throughout and was aware of the slight delay in the complaint in respect of the left forearm, he was well placed in providing such an opinion.
On the observations made above, Ms Saqir’s condition is clearly a physical one which, on the balance of probabilities, is causally related to the incident on 8 March 2021. The delay in the manifestation of symptoms is not inconsistent with the development of a haematoma.

In his report dated 19 July 2021, Associate Professor Miniter made no reference to the radiologist’s conclusion in the MRI scan of the possibility of there being a haematoma. Further, he did not refer to the significance of the MRI finding. These were significant gaps in Associate Professor Miniter’s opinion, given what the radiologist had said it meant. At no stage did Associate Professor Miniter deal with what appeared to be consistent with a haematoma.
In his report dated 19 July 2021, Associate Professor Miniter stated that he was not able to determine the course of the matter at that stage. He drew attention to the lack of consistency between Ms Saqir’s original presentation and the subsequent development of her left arm problems. However, he did not explain what the lack of consistency was.
In his report dated 13 October 2021, Associate Professor Miniter, having been provided with a copy of the Bankstown Hospital clinical records, noted that there was no mention in those records of Ms Saqir’s left forearm. On this basis, he concluded that it was very likely that the development of pain in the left forearm was entirely unrelated to the fall in the workplace. In his view, the hospital clinical records were instrumental in determining that the left forearm was not causally related. However, at no time did Associate Professor Miniter engage with the absence of evidence of a full physical examination; the fact that Ms Saqir had fallen onto her left hand side; or with the development of the problem coming near in time to the fall. In none of his reports did Associate Professor Miniter engage with identifying Ms Saqir’s problem in her left forearm. He did not opine what the condition was related to, despite it being a clear physical problem with clear physical signs and with abnormalities on MRI.
In his report dated 29 June 2022, Associate Professor Miniter takes it no further. He stated that he was unable to identify a diagnosis that explained the symptom complex. He maintained that because there was not a complaint about the left forearm in the Bankstown Hospital clinical records, it was not related to the workplace incident. Caution must be exercised when relying on clinical records, especially in a busy public hospital in the midst of a pandemic.
Associate Professor Miniter’s opinion would not displace what is a fairly strong case in respect of causation, namely, a physical manifestation of a haematoma having granulated and its subsequent related complications. It explained the left forearm swelling. The undiagnosed left thumb symptoms would not trouble the Commission.

ISS’s submissions

I will now refer to ISS’s principal submissions in relation to this issue.
There was no medical or other expert evidence to support that the ingestion of medications such as Endone by Ms Saqir were masking symptoms that were present from the time of her workplace injury. There was no evidence from Ms Saqir as to when she ceased taking such medication and whether it was at that time that her left forearm symptoms became apparent.
Much was made in Ms Saqir’s submissions about Associate Professor Miniter not engaging with the significance of the result of the MRI scan on 11 July 2021. However, at least, Associate Professor Miniter referred to it. Dr Lee did not. It was not referred to in the list of radiological investigations set out in Dr Lee’s report dated 25 January 2022 and Dr Lee was seemingly unaware that the MRI scan existed. In any event, Dr Lee’s opinion was not that there was a haematoma. As this is an alleged s 4(a) injury, identification of the pathology resulting from the injurious event is required. The pathology referred to in the MRI scan is inconsistent with the opinion of Dr Lee and seemingly, not considered by him. That was a significant omission.
Ms Saqir’s evidence in her first statement was that, after the fall, she felt initial pain down the whole of her left side including her leg, hips and body. There was no suggestion of any symptoms in her left wrist or left forearm at the time of the injury.
In her second statement, Ms Saqir stated that in the week following the fall in the workplace, she noticed pain and weakness in her left forearm gradually worsening. There was confusion and inconsistency regarding the development of symptoms as to precisely when that occurred. In any event, there is no evidence before the Commission that there were any immediate symptoms noticed by Ms Saqir at the time of her injury. As Ms Saqir alleges a physical or traumatic injury, one would have expected there to have been symptoms at the time of injury. All of the evidence is that the symptoms developed at points much later than the injurious event.
Ms Saqir’s submission that an inference ought to be drawn that a proper physical examination of her left wrist or left arm was not undertaken at Bankstown Hospital on 8 March 2021 is not available to the Commission. The clinical records contained very detailed notes about the examination conducted. It is common in clinical records that body parts that are uninjured are not referred to. The pertinent or salient injuries or conditions that are identified are the subject of specific references in clinical records. There was no reference to Ms Saqir’s left wrist or left arm. Ms Saqir has not put forward any evidence that there were any physical signs of injury or symptoms in the left arm at the time of her attendance at Bankstown Hospital. So, it is not as if hospital staff have overlooked a visible sign of injury because there was no such evidence at that time. The Commission would conclude that a proper physical examination was undertaken at the Bankstown Hospital on 8 March 2021.
The Bankstown Hospital clinical records contained a detailed history provided by Ms Saqir at the time of her attendance. There were no references to any injury or complaints of symptoms in the left wrist or left arm.
The entry in the Advance Liverpool Medical Centre clinical records dated 11 March 2021 referred to Ms Saqir’s fall in the workplace but made no reference to having injured or having any symptoms in her left forearm, left thumb or left wrist. The entries dated 19 March 2021 and 28 March 2021 again made no reference to Ms Saqir complaining of left forearm, left thumb or left wrist symptoms.
The entry in the Advance Liverpool Medical Centre clinical records dated 26 April 2021 recorded that Ms Saqir also had left forearm pain near her lateral epicondyle and a slightly swollen muscle. Dr Shamoun noted no injury and no history of the same before. Significantly, on her first attendance on her general practitioner to report developing left arm pain, either Ms Saqir or Dr Shamoun discussed that there was no injury. There was no injury precipitating her attendance on Dr Shamoun on 26 April 2021. Neither Dr Shamoun in a report nor Ms Saqir in her statement explained the meaning of the recording of “no injury” at the time of the consultation.
The entry in the Advance Liverpool Medical Centre clinical records dated 29 April 2021 recorded that Ms Saqir now required a WorkCover certificate as the injury was linked to the one that occurred in March 2021. Such entry is unexplained and is inconsistent with the entry on 26 April 2021. It is unclear whether it is Ms Saqir suggesting to Dr Shamoun that her left arm symptoms were related to the injury on 8 March 2021 or whether it was Dr Shamoun’s opinion. In any event, there were no reasons provided by Dr Shamoun as to how and why the condition that suddenly developed six or seven weeks after the fall could be related.
The contemporaneous material was unsupportive of Ms Saqir having developed or suffered any injury to her left arm in the subject incident. There was a significant delay in the onset of symptoms. There was very little by way of explanation for the delay on the evidence before the Commission.
In the history Ms Saqir provided to Dr Lee, he noted that there was some confusion as to when she started to feel pain in her left arm. Dr Lee further noted that she started noticing pain in the left arm region about two weeks later, that is, two weeks after the workplace fall. The history provided to Dr Lee confirmed that Ms Saqir did not assert having suffered any left arm symptoms in the two weeks following the fall and for that reason, it was simply not recorded by Bankstown Hospital.
Dr Lee opined that Ms Saqir’s injury was most likely a radial tunnel syndrome, which is not necessarily consistent with the pathology demonstrated on the MRI scan referencing a haematoma or a possible mass lesion. The onus is on Ms Saqir to establish the nature of the injury suffered under s 4(a) of the 1987 Act and that simply cannot be done on the conflicting material in evidence.
Dr Lee grappled with the history provided by Ms Saqir when he questioned her about whether, when she regained consciousness, she had noticed that her left arm was on some pressured area. Dr Lee speculated that it was possible that maybe when she lost consciousness, she placed pressure on her left forearm resulting in compression of the radial nerve. At best, Dr Lee’s opinion was equivocal and not sufficient to discharge the onus borne by Ms Saqir.
Significantly, Dr Lee agreed with Associate Professor Miniter that the description of Ms Saqir’s injury could not fully explain the symptoms in her left thumb. In the opinions of Dr Lee and Associate Professor Miniter, there was something going on in the left arm that was not consistent with the mechanism of the fall reported by Ms Saqir. It was a significant admission and concession by Dr Lee.
In his report dated 19 July 2021, Associate Professor Miniter took a history that Ms Saqir had a month off work following the incident on 8 March 2021 and that, when she returned to work, she began to experience a sensation of fullness in the left forearm. The latter was a significant reference because Ms Saqir’s case as presented relied solely on the fall on 8 March 2021. It is entirely possible that some events that occurred in the course of her employment after she returned to work following the incident may have precipitated the symptoms in her left arm. Such proposition is consistent with the delayed onset of her symptoms.
In his report dated 13 October 2021, Associate Professor Miniter opined, after having been provided with the Bankstown Hospital clinical records, that there was no mention of the left forearm in the records and that it was very likely that the development of pain in the left forearm was entirely unrelated to the fall in the workplace. In the context of the traumatic injury alleged by Ms Saqir and the evidence unanimously confirming a delayed onset of left arm symptoms, the evidence is not supportive of the proposition that the left arm condition resulted from the fall.
In his report dated 29 June 2022, Associate Professor Miniter referred to Dr Lee’s report and opined that the matter, as it stood, did not have a clear explanation and that it was inappropriate to make observations of a delayed onset of symptoms in relation to a fall such as that experienced by Ms Saqir. He maintained his opinion that there was no evidence that Ms Saqir injured her left arm in the fall on 8 March 2021.
The evidence is supportive of Ms Saqir having developed widespread symptoms in her left arm quite some time after the fall. The contemporaneous evidence suggested that the symptoms did not emerge until or around 26 April 2021 when they were first reported to Dr Shamoun. Dr Lee reported that it may have been two weeks after the fall but that was not supported by any contemporaneous material. When presenting with left arm symptoms to Dr Shamoun on 26 April 2021, Ms Saqir reported no injury as having precipitated symptoms. Ms Saqir then underwent radiological investigations. Dr Lee’s opinion is not consistent with the radiological investigations undertaken.
Dr Venkat’s report dated 25 May 2021 pre-dated the MRI scan on 11 July 2021. Dr Venkat took a history of the injury and provided a diagnosis. However, it did not appear that he was aware of the delayed onset of left arm symptoms, which was critical to the issue of causation. Further, he did not provide any direct opinion that the condition diagnosed by him in respect of Ms Saqir’s left arm was attributable to the fall on 8 March 2021.
On the balance of probabilities, the Commission would not be satisfied that Ms Saqir sustained an injury to her left arm in the fall on 8 March 2021. Accordingly, there should be an award for the respondent.

Ms Saqir’s submissions in reply

I will now refer to Ms Saqir’s submissions in reply.
There is no requirement under s 4(a) of the 1987 Act to identify the pathology. What is required is a finding of injury. Federal Broom Co Pty Ltd v Semlitch[41] (Semlitch), is authority for the proposition that, in certain cases, the mere presence of symptoms of pain can be sufficient to establish injury. In this case, there is no doubt that there is a condition, in that, there is swelling. The question is whether there is a causal connection between the injury and the event.
[41] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626.
The examination findings in the Bankstown Hospital clinical records demonstrated that there had been an examination of Ms Saqir, but it was not a complete examination. Despite the history of a blow to the head, the examination findings did not include an examination of the head or whether there had been any bruising to the head. On Ms Saqir’s first consultation with Dr Shamoun after the workplace fall on 11 March 2021, he observed and recorded in his clinical records a right eye periorbital swelling and some blurred vision. The latter observations were not referred to in the Bankstown Hospital clinical records. Further, the Bankstown Hospital clinical records noted that the language spoken at home by Ms Saqir was Arabic and also noted that there was no interpreter.
In respect of the entry in the Advance Liverpool Medical Centre clinical records on 29 April 2021, it was clearly Dr Shamoun’s opinion that Ms Saqir’s left forearm pain was linked to the workplace fall on 8 March 2021 because he so certified it in a certificate of capacity issued on the same day.[42]
[42] Reply at page 59.
Associate Professor Miniter referred to the MRI scan dated 11 July 2021 in his report dated 19 July 2021 but did not refer to it again in his other reports. In his report dated 29 June 2022, Associate Professor Miniter, stated that, as far as he could determine, an MRI scan had not been undertaken. He had simply forgotten about it, having referred to it in his first report. Associate Professor Miniter has put a relevant piece of evidence to one side and pretended that it did not exist. The clinical indication for the MRI scan of the left arm was radial sensory loss. Associate Professor Miniter’s opinion was seriously undermined because the signs the radiologist was looking for was the very thing that Dr Lee had been talking about, that is, radial sensory loss.
On considering the evidence overall, Ms Saqir clearly had a significant fall onto her left side. Dr Shamoun, who was completely aware of the history, was satisfied that her left arm condition was causally related to the fall in the workplace on 8 March 2021. All the indications are that it was a traumatic injury in one form or another. Whether it is direct nerve damage or whether it is the ultimate consequences of a haematoma, makes no difference. Neither are mutually exclusive.
The Commission would be comfortably satisfied that there is a causal link between the fall on 8 March 2021 and the incapacity in the left arm.

FINDINGS AND REASONS

Injury to the left arm, left thumb and fingers

The legislation and legal principles

Section 9 of the 1987 Act provides that a worker who has received an injury shall receive compensation from the worker’s employer in accordance with the Act.
Section 4(a) of the 1987 Act defines “injury” as a personal injury arising out of or in the course of employment.
The onus of establishing injury falls on Ms Saqir and the standard of proof is on the balance of probabilities, meaning that I must be satisfied to a degree of actual persuasion or affirmative satisfaction: Department of Education and Training v Ireland[43] (Ireland) and Nguyen v Cosmopolitan Homes[44] (Nguyen).
[43] Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[44] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
The issue of causation must be based and determined on the facts in each case and requires a common sense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates[45] (Kooragang). As I understand it, when referring to applying “common sense”,
[45] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796.
[46] Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45 at [136].
Kirby P in Kooragang was not suggesting that it be applied “at large” or that issues were to be determined by “common sense” alone but by a careful analysis of the evidence, including a careful analysis of the expert evidence: Kirunda v State of New South Wales (No 4)[46] (Kirunda). The legislation must be interpreted by reference to the terms of the statute and its context in a fashion that best effects its purpose.
As Parker ADP observed in Le Twins Pty Ltd v Luo, most conditions are the result of multiple factors. The question is always whether the facts as found satisfy the statutory criterion for causation.[47]
[47] Le Twins Pty Ltd v Luo [2019] NSWWCCPD 52 at [71].
In order to establish that a “personal injury” has been suffered within the meaning of s 4(a) of the 1987 Act, Ms Saqir must establish, on the balance of probabilities, that there has been a definite or distinct “physiological change” or “physiological disturbance” in her left arm for the worse which, if not sudden, is at least, identifiable: Kennedy Cleaning Services Pty Ltd v Petkoska[48] (Kennedy) and Military Rehabilitation and Compensation Commission v May[49] (May). The word “injury” refers to both the event and the pathology arising from it: Lyons v Master Builders Association of NSW Pty Ltd[50] (Lyons). While pain may be indicative of such physiological change, it is not itself a “personal injury”.
[48] Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45.
[49] Military Rehabilitation and Compensation Commission v May [2016] HCA 19.
[50] Lyons v Master Builders Association of NSW Pty Ltd (2003) 25NSWCCR 496.
Castro v State Transit Authority[51] (Castro) provides a useful review of the authorities and makes it clear that what is required to constitute “injury” is a “sudden or identifiable pathological change”. In Castro, a temporary physiological change in the body’s functioning (atrial fibrillation: irregular rhythm of the heart), without pathological change, did not constitute injury.
[51] Castro v State Transit Authority [2000] NSWCC 12; (2000) 19 NSWCCR 496.

Consideration and findings

Ms Saqir’s unchallenged evidence was that, whilst mopping a ceramic tiled floor in a bathroom on 8 March 2021, she slipped and fell backwards to the floor onto her left side and braced herself with her arms to reduce the impact of the fall. She felt initial pain down the whole of her left side, being her leg, hip and body. She did not state in her evidentiary statements that she had experienced pain in her left arm, left thumb and fingers immediately after the fall. She was conveyed by ambulance to Bankstown Hospital.
The Bankstown Hospital clinical records did not record complaints of pain or symptoms in Ms Saqir’s left arm, left thumb and fingers. Ms Saqir’s evidence did not contradict or seek to challenge the absence of such complaints in the clinical records. Counsel for Ms Saqir submitted that the Endone and paracetamol Ms Saqir was prescribed on discharge from the hospital would have affected her perception of pain. Such submission was unsupported by medical evidence and I reject it.
Counsel for Ms Saqir submitted that the Bankstown Hospital clinical records did not record that Ms Saqir underwent a full physical examination because nowhere in the clinical records was there evidence that anyone carried out an examination recording a laceration or bruising. I am unconvinced by the submission that such an omission was significant in respect of the weight Associate Professor Miniter placed on the hospital’s clinical notes. I have extracted and reproduced that part of the hospital clinical records in respect of the examination conducted at [34] above. Further, Ms Saqir underwent CT scans of her brain, cervical spine, pelvis, lumbosacral spine and left hip. She also underwent X-rays of her chest, left knee, left foot and left ankle. None of the medical imaging revealed any abnormalities.

Ms Saqir conceded that, following her fall, her initial consultations with Dr Shamoun on 11 March 2021, 19 March 2021 and 28 March 2021 were concerned about her head and lower back. Ms Saqir’s first report of left forearm pain was not until her consultation with Dr Shamoun on 26 April 2021, being seven weeks after her workplace fall. At that consultation, Dr Shamoun observed a slightly swollen muscle in her left forearm.
Whilst Ms Saqir’s evidence was that she noticed gradually worsening pain and weakness in her left forearm over the week following the fall and that she attributed such symptoms to the fall, she made no complaint to Dr Shamoun until 26 April 2021. In his clinical records, in respect of Ms Saqir’s left forearm, Dr Shamoun noted that there had been no injury or history of the same symptoms before.
I found Ms Saqir’s evidence in respect of the onset of symptoms in her left forearm and left thumb to be vague. In particular, the timing of the alleged worsening symptoms and the inability to move her left thumb did not accord with Dr Shamoun’s clinical records. On 25 January 2022, Dr Lee recorded that there was some confusion as to when Ms Saqir started to feel pain in her left arm. She told Dr Lee that she started noticing pain in the left arm region about two weeks after the workplace fall. I have treated Ms Saqir’s evidence in this regard with some caution.
Ms Saqir’s evidence was that she returned to work about four weeks after the fall on 8 March 2021. If her recollection was correct, she returned to work with a brace on her left forearm, as advised by Dr Shamoun, in about early April 2021. Yet, her first complaint to Dr Shamoun about left forearm symptoms was some weeks later on 26 April 2022. Dr Shamoun did not record any symptoms in respect of the left thumb in the consultation on 26 April 2021. Two weeks after returning to work, she was unable to move her left thumb. She blamed her symptoms on an infection in her nerves. Three weeks after returning to work, the pain in her left thumb and left forearm was so intense and severe that she could not continue working.
The value of contemporaneous evidence has been repeatedly endorsed by the courts. In Onassis and Calogeropoulos v Vergottis[52], Lord Pearce said of documentary evidence:
“It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.”
[52] Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 at 431.
The absence of contemporaneous evidence is not determinative on the issue of causation where there is other evidence: Owen v Motor Accidents Authority of NSW[53]and Bugat v Fox.[54] While independent corroboration of complaints of pain will often be helpful and relevant in assessing the probative value of the evidence overall, such evidence is not a “requirement” that must be satisfied before a Member can feel actual persuasion about the existence of a fact in issue: Department of Aging, Disability and Home Care v Findlay[55].
[53] Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [52].
[54] Bugat v Fox [2014] NSWSC 888 at [31], [32] and [34].
[55] Department of Aging, Disability and Home Care v Findlay [2011] NSWWCCPD 65.
Further, histories in medical records are often used to attack the credit of a worker. Reference is made either to a failure to mention relevant matters, or a description in a medical record which is different to what the worker now says in evidence. Care should be taken when considering such evidence, not to place too much weight on the clinical notes of treating doctors, given their primary concern with treatment. Experience demonstrates that busy doctors sometimes misunderstand, omit or incorrectly record histories of accidents or complaints by a patient, particularly in circumstances where their concern is with the treatment or impact of an obvious frank injury: Davis v Council of the City of Wagga Wagga[56]; and applied in King v Collins[57] and Mastronardi v State of New South Wales[58]. Inconsistencies between a party’s evidence and medical histories in clinical records should be treated with caution: Mason v Demasi.[59]
[56] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34.
[57] King v Collins [2007] NSWCA 122.
[58] Mastronardi v State of New South Wales [2009] NSWCA 270.
[59] Mason v Demasi [2009] NSWCA 227.
The caution referred to above was confirmed by Roche DP in Winter v NSW Police Force[60] as follows:
“It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; King v Collins [2007] NSWCA 122 at [34-36]).”[61]
[60] Winter v NSW Police Force [2010] NSWCCPD 12.
[61] Winter v NSW Police Force [2010] NSWCCPD at [183].
I acknowledge that caution must be taken when relying on clinical records. I have exercised caution in this regard and considered all the evidence.
On 27 April 2021, Ms Saqir underwent an ultrasound of her left forearm on the referral of Dr Shamoun. The radial nerve demonstrated focal thickening and increased vascularity in the region of interest, suggestive of a possible neuritis. Neuritis is an inflammation of a peripheral nerve or nerves, usually causing pain and loss of function. Dr Shamoun referred Ms Saqir to Dr Dowla.
On 28 April 2021, Ms Saqir attended Liverpool Hospital because of left forearm pain. Sometime between her consultation with Dr Shamoun on 27 April 2021 and her next consultation with Dr Shamoun on 29 April 2021, Ms Saqir told Dr Shamoun that she had consulted Dr Dowla. There were no clinical records from Liverpool Hospital relating to her presentation on the evening of 28 April 2021, nor were there any reports or clinical records from Dr Dowla in evidence. There was nothing to indicate Dr Dowla’s opinion in respect of the findings on ultrasound except for the notation in Dr Shamoun’s clinical records that “the nerve doctor, he believes the nerve is ok.”[62].
[62] ARD at page 112.
On 29 April 2021, Dr Shamoun issued Ms Saqir a certificate of capacity that certified her injury as being one of left forearm pain – radial nerve injury. A radial nerve injury is also referred to as radial nerve palsy. There was no explanation by Dr Shamoun as to how he had causally related Ms Saqir’s left forearm symptoms with the fall on 8 March 2021, particularly in view of the delayed reporting of symptoms to him seven weeks after the fall. It was inconsistent with the entry referring to no injury in Dr Shamoun’s clinical records on 26 April 2021.
On 25 May 2021, Dr Venkat concluded that Ms Saqir was suffering from radial nerve palsy secondary to swelling and compression in the posterior forearm and the possibility of a tendon rupture causing thumb weakness. Unsurprisingly for a treating specialist, Dr Venkat did not engage with the issue of causation. He accepted Ms Saqir’s history of a heavy fall in a bathroom onto her left hand side that resulted in significant left forearm pain and paraesthesia. He did not refer to the delay in reporting symptoms to Dr Shamoun. He recommended that Ms Saqir undergo an MRI scan.
Ms Saqir eventually underwent the MRI scan recommended by Dr Venkat on 9 July 2021. The radiologist opined that, given the history of trauma, it was possible that there was a haematoma with granulation tissue that happened to be centred on the posterior interosseous nerve. The findings were atypical for a focal neuritis. He could not exclude that there was an underlying mass lesion. Ms Saqir’s thumb scanned normally.
The principles in relation to the acceptance of expert opinions in the Commission are well known. The case law makes it clear that the Evidence Act 1995 does not apply to proceedings in the Commission. Hancock v East Coast Timbers Products Pty Ltd[63] is authority for the proposition that in a non-evidence-based jurisdiction such as the Commission, the question of acceptability of expert evidence will not be one of admissibility but one of weight.
[63] Hancock v East Coast Timbers Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43.
Further, it is well established in the authorities such as Paric v John Holland (Constructions) Pty Ltd,[64] Makita (Australia) Pty Ltd v Sprowles[65] (Makita); South Western Sydney Area Health Service v Edmonds[66] (Edmonds); and Hancock; that there must be a “fair climate” on which a doctor can base an opinion. Exact correspondence between the history in a medical report and what is proved in evidence is not necessary for the validity of the medical opinion. All that is required both as a matter of principle and common sense is that there be real correspondence between the two.
[64] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58.
[65] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705.
[66] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421.
The relevant principles from Makita and onward are a guide to the weight to be given to experts’ reports. Makita set out that the requirement for the admissibility of an expert opinion is that it must be established on the facts on which the opinion is based from a proper foundation for the opinion. The opinion of an expert requires demonstration of the examination of the scientific or other intellectual basis of the conclusions reached. The expert’s evidence must explain how the field of specialised knowledge in which the witness is expert by reason of training, study or experience and in which the opinion is wholly or substantially based, applies to the facts assumed or observed so as to produce the opinion propounded. The reasoning must be exposed demonstrating a particular specialised knowledge.
Whilst it is accepted that doctors do not need to provide elaborate or detailed explanations for their conclusions, more than a mere “ipse dixit” (an assertion without proof) is required.
At the time of preparing his report, it appears that Dr Lee did not have a copy of the Advance Liverpool Medical Centre clinical records. He did not appear to have a copy of the MRI scan report dated 11 July 2021 and if he did, he did not refer to it. Accordingly, he did not consider the reference in the MRI scan report to a possible haematoma with granulation tissue that happened to be centred on the posterior interosseous nerve.
Dr Lee listed the left forearm ultrasound report dated 27 April 2021 and Dr Venkat’s neurophysiology report dated 25 May 2021 as having been provided to him. He did not express an opinion about the ultrasound conclusion of a possible radial neuritis. Dr Lee opined that Ms Saqir’s injury was probably to the deep branch of the posterior interosseous branch of the radial nerve and he noted that Dr Venkat also documented involvement of the sensory branch.
In respect of causation, Dr Lee opined that it was reasonable to assume Ms Saqir’s left forearm had sustained nerve damage because the nerve injury appeared shortly after the fall on 8 March 2021. I found Dr Lee’s reasoning unconvincing because of his lack of engagement with the issue of causation on the evidence and relying on the temporal element without adequately relating it to the injury.
Whilst Dr Lee acknowledged that it was difficult to explain the mechanism of injury, his diagnosis was “most likely a radial tunnel syndrome”.[67] When Dr Lee re-engaged with the issue of causation, he proceeded to speculate that it was possible that “maybe”[68] when Ms Saqir lost consciousness, she put pressure on her left forearm resulting in compression of the radial nerve. However, he conceded that Ms Saqir could not recall such a possible scenario. I was unconvinced by Dr Lee’s speculative opinion. There was no evidence to support it. It was merely an assertion without proof.
[67] ARD at page 37 at [2a)].
[68] ARD at page 37 at [2a)].
Dr Lee agreed with Associate Professor Miniter that the description of Ms Saqir’s injury could not fully explain symptoms in her left thumb but concluded that there was no other good explanation as to what had caused the weakness in the thumb.
I find Dr Lee’s evidence of little probative value and give his opinion very little weight for the reasons stated above.
Associate Professor Miniter opined that the matter, as it stood, did not have a clear explanation and that it was inappropriate for Dr Lee to make observations of delayed onset of symptoms in relation to a fall such as that sustained by Ms Saqir. Rather than inappropriate, I find that Dr Lee’s observations were not evidence based and speculative.
Associate Professor Miniter placed much weight on the absence of left arm, and left thumb complaints in the Bankstown Hospital clinical records. As I have already stated, there is danger in placing too much weight on clinical records alone.
Associate Professor Miniter did not believe that Ms Saqir’s employment was the likely major contributing factor to her left forearm and left thumb complaints. He observed that there appeared to be features on clinical examination that were consistent with voluntary exaggeration. Contrary to the submissions of Ms Saqir’s counsel, Associate Professor Miniter did explain Ms Saqir’s lack of consistency in his first report under his commentary in his introduction and on physical examination. He referred to Ms Saqir’s complaint of altered sensation in the left hand and noted that it was an unusual presentation for compression of the posterior interosseous nerve, noting that the posterior interosseous nerve is a motor only nerve supplying extensor indicis and extensor pollicis longus. He also referred to her inability to extend and abduct the thumb away from her palm as being most unusual as such motor function is observed by the median nerve and not the radial posterior interosseous nerves.
Contrary to the submissions of Ms Saqir’s counsel, Associate Professor Miniter, in his first report, did refer to the radiologist’s findings in the MRI report dated 11 July 2021. He found the findings on MRI compelling but after having the opportunity to review the Bankstown Hospital clinical records, he appeared to have forgotten about the findings in the MRI report in his supplementary reports.
I found associate Professor Miniter’s evidence of little probative value.
I do not doubt that Ms Saqir experiences symptoms, including swelling, in her left forearm and symptoms in her left thumb. The question is whether there is a causal connection between the injury/symptoms and the fall on 8 March 2021. I find that the evidence falls short of what is required for Ms Saqir to discharge the onus she bears in respect of causation of injury for the reasons stated above.
I am not satisfied on the balance of probabilities, to a degree of actual persuasion or affirmative satisfaction, that Ms Saqir has established that she sustained a personal injury to her left arm, left thumb and fingers arising out of or in the course of her employment with the respondent on 8 March 2021 within the meaning of s 4(a) of the 1987 Act for the reasons stated above.

CONCLUSION

My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.

[2022] NSWPIC 454

11 August 2022