Ypermachou v PMK Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ypermachou v PMK Pty Ltd [2024] NSWPIC 450
APPLICANT:	Agamemnon Ypermachou
RESPONDENT:	PMK Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	19 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Permanent impairment claim and threshold dispute; applicant suffered accepted injury to back and left leg in the course of his employment with the respondent in 1995; applicant also claims injury to his neck in the same incident, which is disputed, as are alleged consequential conditions to his right ankle, left ankle and respiratory system (sleep apnoea); Held – the applicant suffered injury to his back, neck and left leg in 1995; the applicant suffered consequential conditions to his left arm, right leg and obstructive sleep apnoea as a result of his injury; matter remitted to the President for referral of both disputes.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injury to his back, neck and left leg at or above the knee in the course of his employment with the respondent on 8 August 1995. 2. As a result of the injury referred to [1], the applicant suffered consequential conditions to his left arm at or above the elbow and right leg at or below the knee and a consequential respiratory condition by way of obstructive sleep apnoea. 3. Both matters are remitted to the President for referral to a Medical Assessor in relation to the following: Date of injury: 8 August 1995. Method of assessment: table of disabilities. Body systems referred: neck, back, left leg at or above the knee including below the knee, left arm at or above the elbow (consequential condition), and right leg at or below the knee (consequential condition). Date of injury: 8 August 1995. Method of assessment: whole person impairment (to determine threshold dispute). Body systems referred: cervical spine, lumbar spine, respiratory system (obstructive sleep apnoea) (consequential condition), left upper extremity (elbow) (consequential condition), and right lower extremity (ankle) (consequential condition). 4. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute in matter number W4472/24 and attachments; (c) Application for Assessment by a Medical Assessor in matter number W4473/24 (not including attachments which are identical to those attached to the Application in matter W4472/24); (d) Reply and attachments in matter number W4472/24; (e) Response to Application for Medical Assessment in matter number W4473/24 (not including the attachments which are identical to those attached to the Reply in matter number W4472/24), and (f) applicant’s Application to Admit Late Documents in matter number W4472/24 dated 6 August 2024 and attachments. 5. The parties have liberty to apply in relation to the terms of the assessment within 14 days of the issuing of this Certificate of Determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Agamemnon Ypermachou brings two sets of proceedings against his former employer, PMK Pty Ltd (the respondent). The first proceedings seek payment of permanent impairment compensation whilst the second seek an assessment of whole person impairment in relation to a threshold dispute.
There is no issue the applicant suffered injury in the course of his employment with the respondent on 8 August 1995 and 23 August 1995. The claimed affected body systems in both incidents are identical, and there is no suggestion any impairments arising from those incidents should be assessed separately. The incident on 23 August 1995 is, indeed, said to be by way of an aggravation to the injury suffered on 8 August 1995.
The respondent concedes the applicant’s injured back and left leg at or above the knee including at or below the knee will be the subject of a referral to a Medical Assessor under the Table of Disabilities. The applicant also claims injury to his neck together with consequential conditions allegedly suffered in a fall in February 2018 occasioned by weakness in the applicant’s back, such consequential conditions being to his right ankle and left elbow.
Those consequential conditions are disputed by the respondent, as is the applicant’s alleged neck injury and a further claimed consequential condition of obstructive sleep apnoea.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant suffered injury to his neck;
(b)    whether the applicant suffered consequential conditions to his right ankle and left elbow in a fall in February 2018, and
(c)    whether the applicant suffered a consequential condition to his respiratory system in the nature of obstructive sleep apnoea.

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.
The applicant commenced two sets of proceedings. Matter number W4472/24 is a claim for permanent impairment compensation. Matter number W4473/24 is an application for medical assessment in relation to a threshold dispute. The documents attached to the respective applications and replies in both proceedings are identical. At a preliminary conference held on 5 July 2024, the Personal Injury Commission (Commission) ordered the matters be amalgamated and heard together.
The parties attended a hearing before me on 14 August 2024. Mr Andrew Parker of counsel appeared for the applicant instructed by Frisina Lawyers. Mr Carney of counsel appeared for the respondent instructed by Bartier Perry Lawyers.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attached documents in the matter number W4472/24;
(b)    Application in matter number W4473/24;
(c)    Reply in matter number W4472/24;
(d)    Response in matter number W4473/24, and
(e)    applicant’s Application to Admit Late Documents (AALD) in matter number W4472/24 and attached documents.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered an injury to his neck

The respondent disputes the applicant’s claimed neck injury and notes a lack of contemporaneous complaint in relation to it.
It is trite to say the applicant carries the onus of establishing he suffered an injury. Mr Carney submitted the earliest applicant’s evidence in relation to the alleged neck injury is in his 2009 statement, wherein he indicated he previously been advised by his then legal representatives to abandon a claim for it in proceedings before the former Workers Compensation Commission.
That submission is accurate to a point, in that medical attribution of the applicant’s neck symptoms to the injurious incidents at issue does not appear to have arisen until many years after the alleged date of injury. However, this is not the end of the fact-finding exercise.
In Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD56, Deputy President Roche made it clear the absence of complaint to a treating practitioner is not itself the sole factor in determining whether an applicant has suffered an injury. In Baker, which concerned a psychological injury, the Deputy President noted:
“80.   It was correct that Mr Baker did not complain to his general practitioner of bullying until 26 September 2013. However, that fact was not determinative of whether Mr Baker suffered a psychological injury as a result of events that were up to and including that date. The lack of complaint to a general practitioner is a factor an arbitrator is entitled to take into account in considering whether to accept a worker’s assertion that certain events occurred and that they affected the worker in a certain way.
81.     However, on its own, the absence of such complaint to Mr Baker’s general practitioner until 26 September 2013 was not decisive of whether the events complained of caused a psychological injury and the arbitrator erred in treating it as if it was. That is especially so in circumstances where there is evidence not referred to by the arbitrator, that Mr Baker had complained to the respondent’s representatives of bullying and harassment from as early as July 2012.
82.     Whether Mr Baker suffered a psychological injury as a result of the events at work up to 26 September 2013 depended on an assessment of all the evidence. This included the evidence of the co-workers that there were significant issues between them and Mr Baker that created conflicts at work,... and the evidence from Dr Stevens. In the circumstances, it was not appropriate to conclude that Mr Baker suffered no injury solely because he did not complain of bullying to a general practitioner until 26 September 2013.
83.     The arbitrator’s conclusion, on this issue, really amounts to a finding that he did not accept Mr Baker suffered a psychological injury because there was no corroboration of his complaints from a general practitioner. There is no requirement for corroboration in a civil case (Chanaa v Zarour [2011] NSWCA199 at [86]) and, to the extent that the arbitrator thought that such corroboration was necessary, he erred.”
In this matter, there is a piece of evidence which, in my view, is of significance in establishing the applicant was complaining of symptoms in his neck far earlier than asserted by the respondent. On 26 February 1998, approximately 2.5 years after the injurious events, the applicant was referred for cervical spine radiological investigation. The report in relation to that investigation is as follows:
“CERVICAL SPINE:
Clinical notes: chronic neck pain especially at limit of lateral flexion.
Bony alignment is normal. The disc spaces are normal. No narrowing of the neural exit foramina. No discreet bony lesion.”
Mr Parker submitted, and I accept, that the significance of this report is the clinical background of chronic neck pain. Chronicity suggests long standing and persistent symptomology. As Mr Parker noted, there is no suggestion of any other injurious events which might have caused the applicant’s neck symptoms. It should also be noted that at the time of the radiological report, the applicant was only 26 years 11 months old. It is therefore unlikely in my view his neck symptoms in February 1998 could be put down to purely degenerative changes in his cervical spine.
The applicant’s evidence in relation to the injury on 8 August 1995 is as follows:
“I was pushing a wheelbarrow laden with bricks over an old unsafe temporary ramp made to avoid the slope, connecting the driveway entrance to the second level of a hoist erected against the building that I used to take me to the fourth level, the top floor where the team was working. Part of the ramp was held up by an old wooden door used to replace scaffolding around a cliff rock. This made the ramp very unstable and it wobbled when passing over this section. After several trips the ramp suddenly gave way and collapsed beneath me. I let go of the barrow and fell down the face of the cliff onto a rocky surface two metres below me, feeling immediate pain to my lower back and neck. I then slid a further two metres down the muddy rock surface at speed and was stopped by the hoist post at the basement causing me immediate severe pain to my back, neck, chest, wrists, ankle joints and lower pelvic region, leaving me with lacerations to my back, chest, hands, arms, shoulder and penis. A few employees came to my aid and assisted me away from the area. They laid me on the floor of the basement area. I was then given Panadol to relieve the pain and a couple of Band-Aids which did not cover the grazed areas. I was urged to continue working even though I was severely injured, bleeding and in a state of shock. They encouraged me to carry half the load and I was obliged to keep working with a severe headache, stiff neck and inflamed back that I could not even touch.”
The applicant also stated he had found documentation relating to his neck dating back to 1996 including requests for therapy to his neck dating back to that time. This documentation is not attached to the Application, as the applicant stated it formed part of his previous proceedings which included a withdrawal of a claim in relation to his neck.
The applicant asserted the respondent’s insurer has been aware of his neck injury for decades but has “withheld this information”.
Mr Parker asserted an inference ought to be drawn against the respondent in relation to this aspect of the evidence, as it offered nothing in reply to the applicant’s assertion. Mr Carney opposed that submission. Mr Parker submitted the inference to be drawn was that contained in the second limb of Jones v Dunkel (1959) 101 CLR 298 at 305, namely any evidence by the respondent would have negatively impacted its case, as opposed to the first limb of that authority, which is to the effect any evidence would merely not have assisted the respondent.
On balance, I do not believe I need to draw such an inference. However, I have no difficulty in accepting the applicant’s evidence in relation to his neck symptoms on its face. No application was made to cross-examine the applicant on this aspect of his claim. Moreover, it is not uncommon in cases of multiple injured body parts for the treatment of one to be the dominant factor addressed by treating medical specialists. That, as Mr Parker noted, appears to have been the case in this matter in relation to the applicant’s lumbar spine.
On balance, I find the applicant did suffer an injury to his neck in the incident at issue. His statement evidence is not contradicted, and there is some support for the injury having taken place from the radiological report of 1998 noting chronic neck symptoms. That is to say, contrary to the respondent’s position, the first complaint of neck problems was many years earlier than the applicant’s statement in 2009.
Support for that proposition is also found in the report of Dr Patrick dated 5 May 2023, found at page 100 of the Application. In recounting the applicant’s history, Dr Patrick noted “he also had some neck discomfort, but the main problem was at the back”.
It is also a well-known proposition that caution must be taken when relying upon the histories contained in the documentation of treating practitioners: see Mason v Demasi & Anor [2009] NSWCA 227 (31 July 2009).
As noted, an absence of corroboration is not fatal to a civil claim, however, to an extent there is corroboration of symptomology in the neck consistent with the symptoms which the applicant later stated had concerned him since the injurious event at issue.
Taking into account the totality of the evidence, I am satisfied on the balance of probabilities the applicant sustained an injury to his neck in the event at issue, and accordingly that body system will be referred for assessment.

Consequential injuries to the left elbow and right ankle

On 11 February 2018, the applicant suffered a fall whilst dropping his children at his former wife’s premises. He alleges that one of the difficulties he has experienced since the injuries at issue is back spasms down his left side to his foot which cause him to lose balance and on occasions fall over.
On the date in question, the applicant was allegedly standing on the second step of the entryway to his ex-wife’s home and was holding onto the rail when he felt “an extreme jolt of pain down my left leg which caused me to fall backwards and I put my hands out to break my fall”. According to the applicant, he landed on his left elbow and rolled his right ankle. He consulted his general practitioner (GP) Dr Ismail at Brighton-Le-Sands.
The applicant alleges the injuries suffered to his right ankle and left elbow as a result of the fall are a consequence of the injury at issue.
The applicant’s AALD contains statements from his former wife, Ms Kaplan who gave the following evidence:
“6.     I recall in approximately 2018 an incident occurred where Agamemnon was dropping off the children following his bi-weekly visit.
7.     He was dropping Peter and Jasmine off where I was staying with my parents at the time at 1 Spooner Place, North Ryde.
8.     At that time we were not really on speaking terms, but we are now.
9.     I recall being inside the house.
10.    My daughter, Jasmine, came in and said words to the effect “Dad fell outside”.
11.    I recall Jasmine got some water and an ice pack and headed back outside to be with her father.
12.    My son, Peter, was already outside with his father.
13.    I am aware that Agamemnon had issues with his leg and back for a number of years that continuously caused issues with his balance and his footing.
14.    He would get pains in his back from time to time and his leg would give way.
15.    As far as I am aware, on that day in 2018 he fell backwards and injured his ankle following a back spasm at that moment and he fell because of that.
16.    The back spasms had occurred previously and have also occurred since then.”
The applicant’s daughter, Jasmine gave the following evidence:
“5.     My father, Agamemnon, was dropping us home when he fell and lost balance.
6.     To the best of my recollection, Dad, Peter and I were walking up the pathway to the house. I was walking ahead of my father.
7.     Dad had a spasm and he yelled out. This caused me to turn around.
8.     As I turned, I saw him reach out for the handrail, but he missed it and then he fell back leaning on his right ankle and left elbow.
9.     I went to his side to help him.
10.    I recall him having really bad ankle pain and he just sat on the floor.
11     He was wailing in pain and I was feeling pretty shaken up about it.”
The applicant eventually had an MRI of his right ankle which demonstrated osteochondral lesions in the medial talar dome.
For the respondent, Mr Carney noted neither of the two witnesses relied on by the applicant actually saw the fall, and both rely on the history given by the applicant. He submitted there was no doubt the applicant fell, but it is impossible to say what was the reason.
I note the fall took place on 11 February 2018, and on 23 January 2019 the applicant saw his GP who referred him to Dr Wines, surgeon for review. When the applicant’s GP, Dr Arena made notes in a visit of 14 November 2018, he recorded right ankle pain and swelling nine months earlier however, as Mr Carney noted, no cause of the fall was recorded.
The clinical entry by Dr Arena is, however, helpful in that it notes a lower back and cervical injury in the past, together with “left-sided sciatica”. That entry is consistent with the complaints of the applicant and certainly consistent with the symptoms recorded in relation to his lumbar spine injury.
Mr Carney submitted the clinical records were equivocal at best and that the complaints of weakness really flow from the applicant’s own evidence rather than from his doctors.
The difficulty with that submission is the same caveat in relation to reliance on histories within the clinical records of treating practitioners apply to the applicant’s mechanism of injury in the fall in 2018 just as they do in relation to the injury to his neck. Moreover, it is not only the complaints of the applicant which are recorded, the clinical entries do show a history of sciatica and the applicant’s ex-wife, whom one can describe as independent given they are no longer married, confirms the history of the applicant’s back sometimes giving way on him causing him to lose balance and fall.

In my view, the evidence is overwhelmingly in the applicant’s favour on the question of the cause of the fall in February 2018 which led to his right ankle and left elbow injuries. That is, as a consequence of his accepted lumbar spine injury, the applicant’s back gave way and caused him to lose balance and fall.
Accordingly, I find the applicant’s right ankle and left elbow conditions are consequential to his original injury and they will be the subject of a referral to a Medical Assessor.

The applicant’s claimed sleep apnoea

The respondent maintained its denial of liability concerning the applicant’s sleep apnoea; however, the overwhelming preponderance of the medical evidence supports a finding in relation to it, including the respondent’s own independent medical examiner (IME) Dr Clarke.
The respondent’s denial of liability in relation to the sleep apnoea stems from what it describes as a lack of evidence concerning weight gain on the part of the applicant. However, each of Dr Achis, Dr Dimitri, Dr Desai, Dr Scoppa and Dr Clarke all support the applicant’s sleep apnoea as a consequence of his work injury. I do not propose to repeat the findings of each of those doctors in detail in these reasons, however, suffice to say they supported the applicant’s sleep disorder having been contributed to by chronic analgesic medication and also depression, not only weight gain.
Dr Raj in a report dated May 2022 did not support a finding the work accident contributed to the sleep apnoea. However, his opinion in this regard stands alone and in any event is countered by Dr Scoppa who notes that whilst the work injury did not cause any upper airway impairment such as nasal obstruction, it had contributed to obstructive sleep apnoea on the basis of weight gain causing pharyngeal constriction and the use of sedative medications and painkillers. Moreover, Dr Raj does not provide reasons as to why the diagnosis of sleep apnoea coming 15 years after the injury means that it did not contribute to it. To that extent, Dr Raj’s opinion is a bare ipse dixit opinion and I do not accept it.
On balance, the evidence concerning the cause of the applicant’s sleep apnoea is overwhelming. Indeed, so overwhelming is the medical evidence in relation to sleep apnoea that it is somewhat troubling the respondent maintained its denial of liability. This is particularly the case given its own IME Dr Clarke accepted the causal link between the work accident and the sleep apnoea in his report dated 18 November 2019.
Given the above findings, the applicant’s obstructive sleep apnoea will also be referred for assessment in a Court.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.
Given the myriad injuries and consequential conditions which require referral on different bases, the parties are granted liberty to apply as to the terms of the reference to the Medical Assessor for 14 days after the issuing of these reasons.

[2024] NSWPIC 450

19 August 2024