Succar v Crate N Packing Services Pty Ltd
[2025] NSWPIC 242
•2 June 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Succar v Crate N Packing Services Pty Ltd [2025] NSWPIC 242 |
| APPLICANT: | Succar |
| RESPONDENT: | Crate N Packing Services Pty Ltd |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 2 June 2025 |
CATCHWORDS: | Workers Compensation Act 1987; whether the applicant suffered consequential conditions to his right little finger and right wrist because of an accepted injury to the index, ring and middle fingers; gaps and inconsistencies in the medical evidence; the value of contemporaneous evidence; Nguyen v Cosmopolitan Homes; Kooragang Cement Pty Ltd v Bates (Constructions) Pty Ltd; Makita (Australia) Pty Ltd v Sprowles; Held – award for the respondent for claims relating to consequential right little finger condition; found the applicant has a consequential condition of the right wrist as a result of accepted right index, ring and middle fingers; matter referred to a Medical Assessor for assessment of whole person impairment (WPI). |
| DETERMINATIONS MADE: | 1. The applicant suffered injury to the right ring, middle and index fingers on 31 October 2022 with resultant scarring. 2. The applicant has a consequential condition to the right wrist resulting from injury on 3. Award respondent with respect to the claim of a consequential condition to the right little finger. 4. The matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment (WPI) as follows; Date of injury: 31 October 2022. Method of assessment: WPI. Body system/part: Right index finger; Right middle finger; Right ring finger; Right wrist; Scarring (Temski) |
STATEMENT OF REASONS
BACKGROUND
As a result of injury sustained with Crate N Packing Services Pty Ltd (the respondent),
Mr Succar (the applicant) claims lump sum compensation for permanent impairment.The respondent’s insurer accepts liability for injury to the right index and middle fingers with associated scarring but disputes any injury or consequential claim to the right little and ring fingers and right wrist.
This resulted in an Application to Resolve a Dispute (ARD) being filed in the Personal Injury Commission (Commission). The matter underwent the usual case management pathway ultimately proceeding to arbitration where Mr Perry of Counsel instructed by Ms Nehme represented the applicant. Mr Stiles of Counsel instructed by Mr Wares represented the respondent. Mr Ye was the insurer’s representative.
The issue for determination is:
(a) did the applicant sustain an injury/consequential condition to the right ring and little fingers and right wrist.
The evidence before the Commission was limited to the ARD and the Reply and their annexures.
The parties agreed subject to findings, the matter was to be remitted to the President for referral to a medical assessor.
PRELIMINARY COMMENTS
After notification of conciliation impasse and prior to arbitration, Mr Perry invited me to inspect the applicant’s right hand. Following consent of the respondent, I indicated that I would view the hand subject to the following caveats: I am not medically qualified, my observations would not influence any findings, carry weight or be applied in the overall discernment of the matter. On acceptance of those caveats, the applicant approached and placed his right hand on the table. I observed it could not be laid flat and he could not flex the wrist. The hand and the digits appeared swollen when compared to the uninjured left side.
Applicant’s position
In his statement dated 21 October 2024[1] the applicant confirms he is right hand dominant and was employed as a labourer and general hand predominantly involved in the construction of wooden pallets.
[1] Folio 2 ARD
He describes the injury on 31 October 2022 when his colleague accidently discharged the nail gun firing two 100ml (sic) into his right hand, penetrating the index and middle fingers and superficially wounding the right finger stating:
“I felt instant severe pain in all of my fingers most particularly the index and middle fingers. I screamed in pain and wrenched my right arm from where it was when Glenn discharged the nail gun. It was an involuntary and violent movement of my right arm and in particular my right wrist.”[2]
[2] Paragraph 12 folio 2 ARD
His statement records the impact on activities of daily living and psychological sequelae. He records the surgery by Dr Bradshaw at Fairfield Hospital, review by specialists, Dr Yee and Dr Yeoh, fortnightly hand therapy sessions and ongoing review by his general practitioners including Dr Maroun and Dr Mulkeen in additional to psychological intervention.
The admission notes of Campbelltown Hospital dated 31 October 2022[3] confirm he presented with (unedited):
“Thank you for the ongoing care of Mr Michael Succar, 22 years, who presented with injury to the right index, middle and ring fingers at work. His examination revealed laceration over the right index finger and swelling over the three fingers with limited flexion. His x-ray showed no significant fractures.”
[3] Folio 30 ARD
The treatment records of Dr Yee, Dr Yeoh and radiological reports predominantly refer to investigation and treatment of the right index and middle finger and refer to continued restricted use of the right hand due to pain which was a barrier to progress.[4]
[4] Folio 85 ARD
The extensive notes of the hand therapist predominantly refer to treatment in the right middle and index fingers.
The initial certificate of capacity issued Dr Thilini Hewage on 31/11/2022[5] (sic) at the Emergency Department of the Campbelltown Hospital[6] stated (unedited):
“needed suturing of right index finger laceration
Soft issue injuries to the right, middle and ring finger of the right hand
Planned to follow up at hand clinic Fairfield Hospital 01/11/2022.”
[5] Folio 150-151 ARD
[6] Folio 149 ARD
Ongoing certificates of capacity[7] issued by Dr Mulkeen refer to injury to the left middle finger with partial flexor tendon injury. This is clearly incorrect as the injury was to the right hand.
[7] Folios 110 to 148 ARD
Dr Maroun commenced issuing certificates of capacity in about October 2023 and records the injury as “right middle finger PIP joint ongoing stiffness and deformity”.[8]
[8] Folio 158 ARD
Dr McGlynn was qualified by the applicant and reported on 18 January 2024.[9] He reports the nail penetrated the index, middle and ring finger of the right hand (the applicant confirmed that only the index and middle finger were penetrated). When comparing the right fingers to that of the left he recorded significant restriction of movement in the index, middle, ring and little fingers of the right hand. As regards the diagnosis he offered (unedited):
“Michael Succar has restricted range of movement of right fingers and right wrist. He has chronic pain in the ring index and middle fingers…
Employment was a substantial contributing factor to his physical injuries. He sustained acute traumatic injuries to the fingers of his right hand in an incident at work.”[10]
[9] Folio 18 ARD
[10] Folio 22 ARD
Counsel for the applicant submitted:
(a) the applicant has been straightforward in his presentation and is credible;
(b) there can be no dispute he suffered an injury to the right ring finger as this was clearly recorded in the admission/discharge notes of the Campbelltown Hospital on 31 October 2022;
(c) the applicant’s claim of a consequential condition in the right wrist is supported by Dr Kapila on the basis of immobility. The degree of immobility is supported by the applicant’s ongoing incapacity, his statement that he avoids use of the right hand due to pain. It is also supported by his specialists who have reported limitation in how he now uses his right hand;
(d) the notes of the treating doctors should be treated with caution, particularly as many of the initial certificates of capacity refer to injury to the left hand, which is clearly incorrect;
(e) it is accepted the vast majority of clinical notes do not refer to complaints or treatment to the wrist or little finger but this should not prevent a finding of consequential condition/s as the applicant clearly has significant deformity in the right hand and wrist. The reports of the treating specialists, allied health specialists and general practitioners have a different focus from those of the qualified specialists. Their focus was to treat the main presenting injury and not undertake a global assessment of liability, and
(f) the findings of Dr McGlynn and Dr Kapila show that the strength of the right hand is significantly less than the left hand. In the absence of any other injury or cause, it must be accepted that such losses and impairments to the hand and wrist globally arise or result from the subject injury.
Respondent’s position
In its s 78 notice dated 1 July 2024[11], the respondent confirmed acceptance of liability for the right index and middle fingers. It declined liability for the balance of the claim, specifically the right wrist, little and ring finger as there was no ‘specific medical rationale’ suggesting injury or consequential condition to these areas and the position is supported by the lack of treatment and investigation throughout the life of the claim. It declined to make an offer of settlement as its medical evidence for the accepted injuries assessed impairment below statutory threshold.
[11] Folio 1 ARD
It qualified Dr Kapila, hand surgeon who reported on 24 April 2024.[12] Following what appears to be a consistent understanding of injury, he diagnosed:
“post traumatic/operating scarring around the repaired tendon and soft tissue surrounding all areas…
There is evidence to suggest that there is a consequential condition to the right wrist. If there is injury and the hand has been immobile this can cause restriction in movement”[13]
[12] Folio 37 Reply
[13] Folio 40 Reply
He recorded the present symptoms. He further reported the applicant presented with “no exaggeration”.
Attached to the Reply were the medical records of Dr David Yee[14], Dr Yeoh[15], Dr Mulkeen[16], the hand injury trauma service[17] and various hospital notes[18]. With the exception of a reference to injury to the right ring finger in the hospital notes, I note these records demonstrate that no treatment or investigation was directed to the wrist or little finger (conceded by the applicant).
[14] Folio 263 & 264 Reply
[15] Folio 265 – 268 Reply
[16] Folio 268 to 321 Reply
[17] Folio 322 to 369 Reply
[18] Folio 370 to 396
Also attached to the Reply was a functional capacity evaluation report dated 15 November 2024.[19] Current symptoms were reported as (unedited):
“Location of pain: primarily in the right middle finger, with occasional radiating discomfort extending to the adjacent fingers (right index + right ring finger). Right wrist and right elbow pain noted.”
[19] Folio 44 to 50
Counsel for the respondent submitted:
(a) liability for injury to the index and middle fingers have been accepted. Treatment expenses have been paid. The medical evidence attached to the Reply shows a consistent history of reporting and treatment to these areas. It follows that these areas coupled with the scarring resulting from surgical repair should be referred for medical assessment;
(b) the applicant bears the onus in establishing both injury and consequential condition on the balance of probabilities and has failed to establish so. Specifically:
(i)as regards the right wrist, there is no evidence of complaint, investigation or treatment from the date of injury until the time the applicant qualified Dr McGlynn. The applicant’s statement suggests a wrenching type injury but this is not the case that has been pleaded. It is accepted Dr Kapila has considered the applicant suffers a consequential condition in the wrist due to immobility but his report fails to give a proper medical rationale for this opinion. In short, there is a paucity of evidence to demonstrate a causal connection between the incident and the present symptoms in the wrist;
(ii)as regards the ring finger, it is accepted that the initial hospital presentation did record injury to the ring finger but from that point on there again is a paucity of evidence or even complaint relating to this digit;
(iii)as regards the little finger, much like the wrist, there is no evidence of treatment, complaint or investigation from the date of the injury until the time of Dr McGlynn’s reporting, and
(c) on this basis, there should be an award for the respondent with respect to the claims for the right little finger, the right wrist and ring finger.
APPLICATION OF THE LAW AND REASONS
The law relevant to this application is found in the Workers Compensation Act (1987) (the 1987 Act).
The respondent accepts injury to the index and middle fingers. As indicated above a determination is required on whether the applicant sustained injury to the right ring finger and consequential conditions to the right little finger and right wrist.
Specifically s 4 of the 1987 Act states that injury means personal injury arising out of or in the course of employment. Further s 9A of the1987 Act requires employment to also be the substantial contributing factor for compensation to be payable (except in cases of disease injury which is not relevant here).
To establish injury, the evidence must demonstrate sudden or identifiable[20] (Kennedy) pathological change[21] (Castro). The word ‘injury’ refers to both the event and the pathology arising from it[22] (Lyons). Further, the issue of causation must be determined based on the facts in each case and the application of the commonsense evaluation of the causal chain (Kooragang).[23] The onus of establishing injury falls on the applicant 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: (Nguyen).[24] On this note, it is not necessary that I be satisfied to a degree of certainty but, by the same token, it will not be sufficient if I be merely satisfied that it is possible that the injuries were suffered in the manner alleged.
[20] see Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45 and Military Rehabilitation and Compensation Commission v May [2016] HCA.
[21] Castro v State Transit Authority (NSW).
[22] Lyons v Master Builders Association of NSW Pty Ltd.
[23] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR [463].
[24] Nguyen v Cosmopolitan Homes [2008] NSWCA 246
Has the applicant established that he sustained an injury to the right ring finger?
The evidence confirms the applicant presented to the Campbelltown Hospital on the day of the accident wherein it was recorded that he sustained an injury to the right ring finger. Whilst I accept the respondent’s submission that there have been no complaints or investigations relating to that digit following that presentation, this does not detract from the fact that the applicant did indeed suffer an injury to the right ring finger on 22 October 2022. I find that there has been demonstrated a sudden or identifiable pathological change and that the applicant has established ‘injury’ to the right ring finger. I further find employment is the substantial contributing factor to the injury. It follows it is appropriate for this digit to be assessed by the medical assessor.
Has the applicant established that he sustained a consequential condition to the right little finger?
The 1987 Act does not define a consequential condition. Authorities establish the following key principles (which by no means are exhaustive):
(a) a consequential condition occurs when an applicant experiences a new injury or condition due to the effects or consequences of their original work-related injury, that is, it results from an employment injury[25] (Brennan);
(b) the applicant bears the onus of establishing the existence of a consequential condition on the balance of probabilities[26] (Kumar);
(c) each case must be determined on its own facts;
(d) it is unnecessary for a worker alleging such a condition to establish that it is an “injury” (including “injury” based on the “disease” provisions) within the meaning of s 4 of the 1987 Act[27] (Moon);
(e) to establish a condition, there is to be a “common sense evaluation” of the causal chain, determined on the basis of the evidence, including expert opinions[28] (Kooragang);
(f) a finding of a consequential condition does not require the identification of pathology[29] (Kumar);
(g) reliable and contemporaneous medical evidence plays a significant role in establishing causation;
(h) there must be an unbroken chain of causation from the injury to the development of the consequential condition, and
(i) the absence of treatment is not fatal to the applicant’s claim of a consequential condition[30] (Baker).
[25] Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan (NSWWCCPD 23)
[26] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.
[27] Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon).
[28] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).
[29] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.
[30] As DP Roche noted in Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56, there is no requirement for corroboration in the context of a civil case particularly where an injured worker’s credibility is not an issue (see also Chanaar v Zarour [2011] NSWCA 199 at [86]).
As regards the right little finger, I find the applicant has not established on the balance of probabilities and with a degree of actual persuasion and affirmative satisfaction that a consequential condition to the right little finger results from the injury sustained at work on
31 October 2022 and agree with the submissions made by the respondent. This is because:(a) there is no evidence of investigation or treatment of this digit. I acknowledge a lack of treatment does not prevent the finding of a consequential condition, however there is no complaint whatsoever to any of the specialists or providers who assessed the applicant;
(b) the applicant’s statement is silent on any stand-alone symptoms in the little finger;
(c) I acknowledge case law cautions a decision maker to treat clinical notes with scrutiny given the primary concern of those treating a patient is treatment and not liability which could account for imprecise recording of symptoms arising from any work related event.[31] However, in this case, the notes of the two specialists, hand therapist, physiotherapist, general practitioners and vocational assessor are all consistent, in that there is no complaint of symptoms in the little finger. I would be prepared to accept that one practitioner may have omitted recording symptoms but find it to be a stretch to say that six practitioners all engaged in the same omission. I note the applicant also was silent in complaints to the little finger at vocational assessment. I find that the absence of any complaint or investigation to the right little finger prevents a finding that any symptoms now “result from” the injury to the index, middle and ring fingers;
(d) I acknowledge Dr McGlynn seeks to reconcile that the little finger was a consequential condition, but his report does not identify a chain of reasoning rather simply implies an injury or consequential condition to the little finger. His report and history is silent on any injury to the little finger or how the condition in the little finger developed. He does provide an impairment assessment but overall his diagnosis and report is unhelpful in understanding causation or indeed his chain of reasoning. I find his conclusion of impairment to the little finger is ipse dixit and inconsistent with the bulk of the evidence which suggests that between 31 October 2022 until the time he was examined by him in January 2024, there were no complaints made or symptoms investigated, and
(e) I have considered the applicant’s submission that as a matter of common sense, in the absence of any other injury or cause for the weakness, the injury to the right little finger results from the injury to the remaining fingers on 31 October 2022. Common sense requires an evaluation of the statement and medical evidence and the chronology globally. As indicated above, it is not necessary that I be satisfied to a degree of certainty but, by the same token, it will not be sufficient if I be merely satisfied that it is possible that the injuries were suffered in the manner alleged. I find there is insufficient medical and factual evidence to establish a chain or causation on a commonsense basis that the injury to the right little finger “resulted from” the injury to the middle, index and ring fingers as already related above.
[31] Mastronardi v State of New South Wales [2009] NSWCA 270
For these reasons, there is to be an award for the respondent with respect to the claim of consequential condition to the right little finger.
As regards the right wrist, it is noteworthy that complaints of wrist pain were made at the time of the vocational assessment in November 2024. Again, Dr McGlynn failed to explain his reasoning or rationale for his impairment assessment to the right wrist and its connection to the index, ring and middle finger injury. Dr Kapila however considered the applicant suffered a consequential condition to the right wrist which resulted from the original injury on 31 October 2022 to the index, middle and ring fingers because of immobility. The respondent sought to impress that Dr Kapila’s view should be rejected as he did not provide a cogent rationale for his conclusion. I disagree. I find the applicant has suffered a consequential condition to the right wrist because:
(a) Dr Kapila has considered that the condition in the wrist is causally related to immobility which results from injury to the digits and the residual pain. The bulk of the treating reports, (which are uncontentious) confirm the applicant has avoided use of the hand either due to pain or fear avoidance which is consistent with Dr Kapila’s assessment;
(b) the applicant reported ongoing symptoms to the right wrist to the vocational assessor;
(c) I note the applicant’s statement that he “wrenched his wrist” following the penetrating injury. I accept the respondent’s contention that the case was not pleaded on the basis of a frank injury but rather a consequential condition. I find nothing turns on this as I am satisfied that a wrist condition exists;
(d) I accept the statement evidence of the applicant that he has had ongoing symptoms in the wrist and pain prevents use of results in immobility. This is entirely consistent with Dr Kapila’s diagnosis that resulted in an assessment of a consequential condition in the wrist.
With reference to a common sense evaluation, which has involved scrutiny of the chronology, medical evidence and factual statements, I find the applicant has demonstrated on the balance of probabilities, and with a degree of actual persuasion and affirmative satisfaction that he has suffered a consequential condition to the right wrist resulting from injury to the right index, middle and ring fingers and further find that this condition is be assessed by a medical assessor.
SUMMARY
For the reasons above, I made the findings and orders set out on page 1 of the Certificate of Determination.
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