Sirijovski v Coles Supermarkets Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sirijovski v Coles Supermarkets Australia Pty Ltd [2024] NSWPIC 494
APPLICANT:	Peco Sirijovski
RESPONDENT:	Coles Supermarkets Australia Pty Ltd
MEMBER:	Parnel McAdam
DATE OF DECISION:	6 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Applicant worked as a shelf stacker; injuries to hip, ankle and feet; whether employment main contributing factor to aggravation of disease; AV v AW considered; expression of medical opinion in incorrect terms but nonetheless persuasive; State Transit Authority of New South Wales v El-Achi applied; Held – the applicant suffered injuries as pleaded; matter referred to Medical Assessor for assessment of permanent impairment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injuries to his left and right lower extremities (hip, ankle, and foot) due to the nature and conditions of his employment with the respondent. 2. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: Date of injury: 16 February 2023 (deemed). Body systems/parts: left lower extremity (hip, ankle, foot), and right lower extremity (hip, ankle, foot). Method of assessment: whole person impairment. 3. The documents to be referred to the Medical Assessor are: (a) the Application to Resolve a Dispute and attached documents; (b) the Reply and attached documents, and (c) the Application to Admit Late Documents dated 13 August 2024.

STATEMENT OF REASONS

BACKGROUND

Mr Sirijovski (the applicant) was employed by Coles Supermarkets Australia Pty Ltd (the respondent) from 2014 until July 2022, when his employment ceased. He claims whole person impairment arising out of an injury suffered with the respondent, due to the nature and conditions of his employment with Coles.
Mr Sirijovski was a night filler/shelf stack, which required him to unload pallets of stock onto the shelves. He began to experience pain in his legs, feet and toes initially, and then in the hips. Separately to these physical injuries, Mr Sirijovski is in receipt of weekly payments due to the effect of a psychological injury suffered in the employ of the respondent.
Prior to his employment with the respondent, Mr Sirijovski worked for many years as a labourer with BlueScope. He suffered various injuries during the course of that employment, resulting in an award of compensation. The body parts injured in that employment include the left knee, lumbar spine and cervical spine, which do not form part of the present claim.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered injuries to various body in the course of employment with the respondent, to which employment was the main contributing factor.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (Application) and attached documents;
(b)    the Reply and attached documents, and
(c)    an Application to Admit Late Documents dated 13 August 2024 and attached documents.
I have considered the relevant evidence and in particular the evidence referred to by the parties during submissions. I will provide a brief summary of that evidence below. I have also considered the clinical notes and radiology as discussed during submissions, but do not intend to summarise those documents here.

Reports of Dr Guirgis

Dr Guirgis provides a report dated 8 November 2022 on behalf of the applicant. He commences by providing a summary of the chronology of the injuries suffered with the respondent, through an analysis of the radiology and clinical notes relating to the injuries claimed. He describes pain in the right and left hips, the left ankle, both heels and soles of feet, and sensory symptoms in the second, third and fourth toes of the left foot, which were also present to a lesser extent in the right foot.
Dr Guirgis provides an extensive explanation of causation. This explanation is more thorough than one general experiences in workers compensation medico-legal reports, where Dr Guirgis explains the mechanism of the injuries claimed over a period of nearly three pages. He describes the hips as being effected by eccentric loading, resulting in pressure over the articular cartilage resulting in acceleration of degenerative changes. He attributes the injury identified in the ankle to the same principle.
Dr Guirgis diagnoses Morton’s neuroma in the feet with plantar fasciitis caused by the “windlass mechanism principle”. He opines:
“The nature and conditions of his employment with Coles, was and remained to be a substantial contributing factor to the injuries described above and these injuries were a substantial contributing factor to the symptoms, signs, incapacities and disabilities as described above.”
Dr Guirgis goes on to assess the relevant body systems claimed (being the right hip, ankle/hindfoot and sensory loss by analogy, plus the left hip, ankle/hindfoot and sensory loss). It is noted that in relation to the left ankle/hindfoot, the heading on the table provided (on page 11 of the report) refers to the right ankle/hindfoot. Dr Guirgis assesses whole person impairment of 21%, including a deduction for pre-existing injury, condition or abnormality.
Attached to the report of Dr Guirgis are various scans. The parties referred to some of those during submissions.
Dr Guirgis provides a further report dated 5 October 2023. This later report deals with the opinion of Dr Powell and in particular his reliance on the causation textbook issue by the American Medical Association. He refers to other references not considered in the causation textbook.
Also attached under the cover of an Application to Admit Late Documents were the reports of Dr Guirgis in support of the claim made on the applicant’s previous employer (Bluescope steel/BHP). I have read those reports and the content is not particularly relevant to the present issues in dispute, save from the fact that Mr Sirijovski would have had some familiarity with workers compensation prior to his claimed injuries with the respondent.

Report of Dr Muratore

The respondent relies on the report of Dr Muratore dated 2 September 2022. Dr Muratore commences by setting out the applicant’s previous employment history “at the Steelworks in Wollongong”. These injuries were a back injury, both shoulders and elbows, the left knee and right ankle.
In respect of the present injuries claimed, Dr Muratore records that Mr Sirijovski presented with bilateral forefoot pain that developed gradually in 2021, with pins and needles in both feet. He did not report symptoms to his employer as he wanted to continue working.
In terms of current symptoms at the time of examination, it was recorded that there has been no improvement in the feet and ankles since Mr Sirijovski stopped working. In terms of the hip pain, this was reported to be bilateral, and has become worse since he stopped working.
The diagnoses provided by Dr Muratore are:
“1. Morton’s neuromata of the left foot between the second and third and third and fourth toes.

2. Early osteoarthritis at the metatarsophalangeal joints of the great toe, and to a lesser extent the other toes, right worse than left, not work related.

3. Osteoarthritis of the ankle joints, not work related.

4. Early osteoarthritis of the hip joints, also not work related.”
Dr Muratore accepts that there is a work related condition of Morton’s neuromata in the left foot which can be caused by prolonged standing. Dr Muratore provides that the osteoarthritis diagnosed in the hip joints, ankle joints and great toes “is not work related and on the balance of probabilities genetically determined”. He opines that employment with Coles has not led to an aggravation of any pre-existing condition.

Report of Dr Powell

The respondent also relies on a report of Dr Powell dated 16 June 2023. Dr Powell takes a history of initial symptoms of pain in the feet, leading to sensory disturbance, with later bilateral onset of hip symptoms “without any specific precipitating incident”. Dr Powell provides the following under the heading diagnosis:
“• In relation to the left foot, it has been diagnosed with a Morton's neuroma though clinical examination of both feet and ankles today was unremarkable.
• He exhibited evidence of mild bilateral hip osteoarthritis, and this is clinically more marked on the right side.”
Dr Powell rejects any causal connection between injury and employment in the following terms:
“I do not believe there is any relationship between the current symptoms involving bilateral hips, ankles and feet and his employment with Coles Supermarkets. Examination of the ankles and feet was fairly unremarkable. In relation to the hips, he has evidence of osteoarthritis though this is part of a more generalised constitutional degenerative disease process.”
Dr Powell also explains why he disagrees with the opinion of Dr Guirgis. He also refers to the lengthy history of employment in the steelworks, suggesting that Coles may not have been the main contributing factor to the development of the Morton’s neuroma.

SUBMISSIONS

The parties provided oral submissions during the hearing. I do not intend to fully repeat those submissions here as they were recorded.

Applicant’s submissions

The applicant referred to the opinion of Dr Guirgis, who allowed a causal nexus between the nature of the applicant’s work and the appearance of the neuroma. It was noted that Dr Guirgis sets out a detail narration of his conclusion, and what is seen from Dr Guirgis is more detailed than usual. Prima facie, that analysis is compelling. The injuries are characterised as an aggravation of a disease, perhaps with the exception of the Morton’s neuroma, which has genesis in the work itself.
The applicant then addressed the report of Dr Muratore. He accepts a work related condition, being Morton’s neuroma, and otherwise accepts that the other conditions aren’t work related. This opinion is not greatly of assistance, as there is no insight into the basis of Dr Muratore’s opinion.
In respect of Dr Powell, it was submitted that it is difficult to understand the reason for his conclusion. His mere reference to a causation textbook is of little assistance and unpersuasive. In the face of reasoned analysis of Dr Guirgis’ opinion, the issue of injury is made out.

Respondent’s submissions

The respondent commenced submissions referring to the documents contained in the Application to Admit Late Documents which set out the previous claim with a separate employer. It was submitted that Dr Guirgis was not told about the conditions in those earlier reports. It was also noted that the applicant was familiar with the workers compensation scheme, which is relevant to the respondent’s submission that the applicant has not informed his treating practitioner that the symptoms he is experiencing have arisen from work.
The respondent referred to the radiology attached to the report of Dr Guirgis, commencing on 22 April 2015, noting that on multiple occasions there is no investigation of the right limb. If he is experiencing pain in both feet, it was asked why the right limb is not being investigated. The same is consistent throughout general practitioner’s notes, which reference the left hip on 8 November 2021, and make no reference to work being the cause.
The respondent referred to the X-ray of 9 November 2021, submitting that the findings are unremarkable. There appears to be no pathology and no treatment followed up in respect of the X-ray, and the subsequent clinical notes do not refer to problems immediately after the X-ray. From the clinical note following, on 19 November 2021, there is no reference to any of the injuries until the applicant is terminated on 17 June 2022.
The respondent submits that there is an absence of treatment for a significant period, there is a clear demonstrated ability to continue to perform duties despite the conditions that are alleged to be caused by work.
There is no reference to the right ankle and right hip in any of the treating records or any referral for investigations until the applicant’s employment is terminated. The first reference to causation of the applicant’s condition by the general practitioner is on 15 July 2022. The first certificate of capacity was issue at this point, but there is an absence of reference to the hip in this certificate. There is also an absence of reference to the hip in the claim form. The first time the right hip was referred for investigation was 16 August 2022, two months after the applicant ceased work. The respondent submits that an applicant experienced in workers compensation would report that employment was causing the symptoms he now complains of, and you would think there would be records of that in the general practitioner’s notes.
The respondent referred to the report of Dr Guirgis noting that he does not take account of the absence of reporting of symptoms whilst the applicant was working, and he applies the incorrect test of substantial contributing factor under s 9A of the 1987 Act, rather than main contributing factor.
The respondent referred to the report of Dr Muratore. The respondent submits that there has been no improvement since the applicant stopped working, and there’s been worsening since that time, in the absence of reporting of symptoms during employment that would not support the applicant’s case in respect of causation. The respondent referred to the two hip X-rays as discussed by Dr Muratore (being 9 November 2021 and 16 August 2022), which Dr Muratore considers to be the same. The respondent submits that you would expect there to be a change. The respondent referred to the report of Dr Powell and went through his opinion.
The respondent referred to the bone scan on 7 September 2022, which concluded that there was no significant arthritis in the hip and no active arthritis in the feet. The report has not been commented on by Dr Guirgis.
The respondent submits that on balance there is no contemporaneous report of symptoms prior to the cessation of employment, there is no investigations prior to the applicant ceasing work, and given the applicant’s age and findings on investigations of minor pathology I would accept the respondent’s evidence on causation.

Applicant in response

In response the applicant submits that the analysis advanced by the respondent would only be useful if there was some medical support in support of the analysis he observes, but there’s not. Dr Guirgis has a pretty complete medical history, and has assessed the other injuries and complaints. The propositions being advanced have not been the subject of any commentary.

FINDINGS AND REASONS

The applicant presents his case in a fairly straightforward manner, relying on the report of Dr Guirgis. The respondent relies on the medicolegal opinions of Dr Muratore and Dr Powell. If the respondent’s case were that I accept those opinions over Dr Guirgis’ on their face, the decision would be straightforward. However, the respondent’s submissions point to factors outside of the medicolegal opinions, including the applicant’s lack of reporting of symptoms, the timing of the onset of symptoms, and the previous claim made.
The report of Dr Guirgis is thorough and sets out an extensive history of the onset of symptoms, based on the clinical records, and the radiology considered in reaching the conclusion. The respondent submitted that the doctor did not comment on the bone scan of 7 September 2022 which is correct. He does not mention it in his report. However, the material was before him and it is attached to his opinion. The report itself was addressed to the doctor. This does not reduce the weight that I can give to the opinion of Dr Guirgis greatly.
The bone scan indicates that there is no “significant” arthritis in the hip and no “active” arthritis in the feet. A finding of no “significant” arthritis is not inconsistent with the diagnosis provided of an aggravation of osteoarthritis and trochanteric bursitis. In terms of the feet, arthritis does not play a part in the diagnosis provided in the feet, which is of Morton’s neuroma and plantar fasciitis.
In addition, this submission is not supported in the medicolegal opinion evidence. Dr Powell’s opinion is that there is “evidence of osteoarthritis though this is a part of a more generalised constitutional disease process”. He rejects a causal relationship between the symptoms in the hips, ankles and feet with employment at Coles.
Dr Muratore likewise provides a diagnosis of osteoarthritis in the toes, ankle joints and hip joints, which are not work related. He accepts the diagnosis of Morton’s neuroma in the left foot, consistent with Dr Guirgis.
If anything, the clinical picture of osteoarthritis in varying degrees (along with the Morton’s neuroma), accepted by all three medicolegal assessors, is consistent. There is a dispute as to whether the osteoarthritis has been aggravated by employment, to which employment was the main contributing factor.
In relation to that causation question I find the opinion of Dr Guirgis particularly persuasive. Not only does he provide an opinion supporting the connection, he explains that opinion by outlining how the condition would have arisen. In relation to the hips, he provides:
“In the hips, the nature and conditions of the duties as described above which included repetitive loading, particularly eccentric loading, and especially when the hips are forced in flexion and rotation while weight-bearing causing microfailure of the normal wear & tear processes. The abnormal loading in these early stages resulted in pressure over the articular cartilage affecting its nutrition and resulting in triggering and acceleration of the degenerative changes.”
The respondent has not disputed the duties performed by the applicant are consistent with those set out here. Whilst the role at Coles may have been less physically demanding than Mr Sirijovski’s previous employment in the steelworks, the description of the genesis of injury is consistent with Mr Sirijovski’s statement:
“This involve constant standing and repetitive lifting, squatting and kneeling. I was required to bend down to low level shelves and reach up to high level shelves. I was required to carry various objects in awkward positions.”
This is entirely consistent with “repetitive loading” and “eccentric loading”. The awkard posturing adopted by Mr Sirijovski is also consistent with Dr Guirgis’ diagnostic mechanism relating to the great trochanter pain syndrome:
“When we take a step, we are actually standing on one leg under eccentric loading conditions. To balance our stance and gait, the gluteal muscles around the hip joint have to contract very strongly. The force they need to exert to work properly varies between one and a half to three times our body weights. For the average 70 kg individual this is 150-200 kg. Add to that the weight of the carried heavy object, the torques evolved by twisting and turning and we finish up with a combined force beyond the capacity of the trochanteric bursa to contend with resulting in repetitive microtrauma and eventually bursitis.”

Dr Guirgis applies the same principles to the ankles as set out with the hips.
Dr Guirgis also considers the opinion of Dr Muratore, who rejected the causal connection. He states:
“Of course the underlying degenerative changes are not work-related but the triggering, acceleration, and aggravation through excessive stress loading for prolonged periods of time are work-related.”
This is the appropriate question – whether employment has been the main contributing factor to the aggravation, not the disease process itself (AV v AW [2020] NSWWCCPD 9 (AV v AW)). This brings into play a submission made by the respondent that Dr Guirgis’ opinion is undermined by his reference to “substantial”, rather than “main” contributing factor. I accept that this is factually the case. Nowhere in Dr Guirgis’ main or supplementary report does he refer to the test of “main contributing factor” relevant for the purposes of s 4(b)(ii). His report is otherwise thorough and deals with the relevant question contemplated, in my view, appropriately, in spite of the incorrect language. It is ultimately a matter for the Commission to determine on the totality of the evidence, and while it may reduce the weight that I can give to the opinion of Dr Guirgis, it does not render it with no weight. This was explained in State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71 at [72]:
“Though it would have been helpful if Dr Bodel had expressed his opinion in the terms of the legislation, the fact that he did not did not mean that the Senior Arbitrator erred in accepting his evidence. That a doctor does not address the ultimate legal question to be decided is not fatal (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [194] to [199] and [203]). In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”
I also do not accept the respondent’s submission that Dr Guirgis was not aware of the earlier claims or was not told about them. Reference to those claims was made in the letter of instruction. Dr Guirgis provided the reports as part of those claims.
The opinion of Dr Guirgis is contradicted by Dr Powell. The issue with Dr Powell’s opinion is that it is broad and does not really deal with the facts presented in a thorough way. Dr Powell places weight on the AMA causation textbook which “does not support causation for hip osteoarthritis and the type of work that Mr Sirijovski was performing”. This overarching rejection of the applicant’s presentation does not sufficiently deal with the history of work, the symptoms, and the ongoing history to be acceptable.
Both parties referred to the report of Dr Muratore. For the applicant, Dr Muratore supports the diagnosis of Morton’s neuroma in the left foot, attributing it to prolonged standing, which Mr Sirijovski did in his normal work at Coles. Dr Muratore refers to the relevant investigations. In relation to the left hip and pelvis, there are two X-rays taken around nine months apart. The first is 9 November 2021 and the second 16 August 2022. Dr Muratore describes the first as “normal” and the second showing “degenerative changes in both hips”. He goes on to say that “I considered the x-ray of the left hip was the same as the previous x-ray”.
There is something of an inconsistency in that finding. The first X-ray was said to be normal. The second X-ray showed degenerative change in both hip joints, but Dr Muratore considered the left hip the same as the previous X-ray. The respondent submits that you would expect there to be a change between the two X-rays, given the applicant’s clinical presentation, which supports a conclusion that there was no connection with employment. The problem with this submission is that it is not explained in the report of Dr Muratore. He does not suggest that because the condition has worsened radiologically between the two scans, the injury cannot be work related. In fact he suggests that the condition is the same radiologically, which I find puzzling given the first scan does not refer to degenerative change, but the second scan does.
Dr Muratore’s conclusion in relation to the hips, ankles, and toes is expressed as:
“Mr Sirijovski has evidence of osteoarthritis in the hip joints, possibly the ankle joints and great toes. This is not work related and on the balance of probabilities genetically determined.”
Here Dr Muratore has asked himself the wrong question. The relevant question, as described in AV v AW, is whether employment is the main contributing factor to the aggravation etc. of the disease, not the main contributing factor to the disease itself. Dr Muratore identifies that Mr Sirijovski presents with osteoarthritis. He determines that the osteoarthritis is not work related but does not consider whether employment has aggravated that disease. He goes further to determine that on the balance of probabilities it is genetically determined. Again, this ignores the real question. A worker can have a genetic predisposition to osteoarthritis and still have employment aggravate that pre-existing condition.
For those reasons I prefer the opinion of Dr Guirgis. Although he has expressed his opinion on the basis of “substantial” rather than “main” contributing factor, considering his opinion as a whole with the other clinical and radiological evidence, his opinion is well reasoned and thorough and deals with the appropriate question.
The respondent also took me to the clinical records of the treating general practitioner, suggesting that the applicant, who has previously had some experience in workers compensation, would have reported that employment was causing the symptoms he complained of. I do not accept that submission. Firstly, although Mr Sirijovski has had a previously claim, that does not mean he could be described as “experienced” in workers compensation. He is a lay person who presents with a gamut of symptoms causing pain. He ceased heavy work in steelworks and moved to a shelf-stacking role with Coles. It is not unreasonable to suggest this is lighter work than Mr Sirijovski was previously performing. That does not mean that it could not cause the symptoms present, and I am satisfied that it has.
Secondly, the various conditions in the feet, ankles and hips have been investigated at different times. It may be that some symptoms were more troubling to Mr Sirijovski (potentially the feet symptoms initially) before the hip conditions became more prevalent.
Thirdly, I do not think it is the responsibility of a worker to postulate on a cause of symptoms he presents with to a treating practitioner.
I am satisfied on the balance of probabilities that the applicant has suffered injuries to his left lower extremity (hip, ankle, foot) and right lower extremity (hip, ankle, foot) as result of the nature and conditions of his employment with the respondent. The matter will be referred to a Medical Assessor for an assessment of whole person impairment.

[2024] NSWPIC 494

6 September 2024