Zahrouni v BSV Tyre Recycling Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Zahrouni v BSV Tyre Recycling Australia Pty Ltd [2024] NSWPIC 409
APPLICANT:	Abdollah Zahrouni
RESPONDENT:	BSV Tyre Recycling Australia Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	30 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for declaration pursuant to section 60(5); whether applicant satisfied his onus that left shoulder surgery be approved; medical evidence inconsistent and contradictory; clinical notes referred to by expert not lodged; about 2 year lacuna between occurrence of injurious event and first report by medical practitioner who was applicant’s second GP; claim form signed during that lacuna nominated a different GP who did not supply evidence; no explanation given; Jones v Dunkel applied; Held – applicant did not injure his left shoulder; application rejected.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant did not injure his left shoulder on 11 November 2015. 2. The condition of the applicant’s left shoulder is not consequential to the events of 11 November 2015, nor the surgery to his right shoulder on 23 October 2018. 3. The claim for a declaration pursuant to s 60(5) of the 1987 Act is accordingly rejected.

STATEMENT OF REASONS

BACKGROUND

Mr Abdollah Zahrouni, the applicant, brings an action against BSV Tyre Recycling Australia Pty Ltd, the respondent for a declaration pursuant to s 60(5) regarding proposed surgery on the applicant’s left shoulder.
Dispute notices were issued and the Application to Resolve a Dispute (ARD) was duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) did the applicant injure his left shoulder on 11 November 2015?
(b) If not, did he sustain a consequential condition to his left shoulder as a result of the event on 11 November 2015?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was heard in the Personal Injury Commission (Commission) on 26 June 2024. Mr Boris Necovski of counsel instructed by Mr Ankit Karanwal from Messrs John & Co lawyers appeared for the applicant. Mr Tom Grimes of counsel appeared for the respondent instructed by Ms Holly Easy from Messrs Hicksons Lawyers. Mr Haiman Hammo appeared as the interpreter and Ms Madeline Can appeared for the insurer.
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 Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.

Oral evidence

No application was made in relation to oral evidence.

FINDINGS AND REASONS

At the commencement of the proceedings Mr Necovski amended without objection the ARD form to add to the injury details portion “in the alternative the applicant suffered a consequential injury to his left shoulder”.

Applicant’s statement 11 April 2024

The applicant came to Australia in 2012 from Iran where he was born in 1975.
He commenced work with the respondent in November 2015 and this was his first job in Australia.
He said:
“5 On 11 November 2015, I was involved in a workplace incident. As a result of the incident I sustained injuries to my back, neck, right shoulder and left shoulder. The insurer has accepted liability for the injury to the cervical spine, lumbar spine and right shoulder.”
Mr Zahrouni described the nature of his work which included lifting tyres and placing them on the tray of “the truck”.
Mr Zahrouni advised that he commenced a s 66 claim on 25 February 2022 and that the claimed injuries to the cervical spine, lumbar spine and right shoulder as well as scarring were accepted by the insurer but liability for the left shoulder was denied.
At [10] Mr Zahrouni said:
“10. I believe during the initial examination following my injury on 11 November 2015, the severity of the pain in my lower back, neck and right shoulder was such that I did not particularly emphasise the pain in my left shoulder although I did mention to the doctor that I had pain in my left shoulder. However, I believe that my remarks regarding the remaining pain in the left shoulder were not accurately interpreted and therefore overlooked.”
Mr Zahrouni said that his treating orthopaedic surgeon Dr Herald organised an MRI scan of both shoulders in May 2022, and that on 8 August 2022 Mr Zahrouni was told that the scans revealed “high grade partial thickness tears in both shoulders.”
The application before the Commission was based on Dr Herald’s advice that there should be a “left shoulder arthroscopic rotator cuff repair.”
Mr Zahrouni at [12] advised that he had previously undergone a similar procedure in respect of his right shoulder “in 2018”.
Mr Zahrouni said:
“13 When I sustained my injury I recall experiencing intense pain in my lower back characterised by stabbing sensations that would radiate down my heels. The pain extended throughout the left side of my body, including shoulders and caused significant discomfort. This was an entirely new level of pain for me, unlike anything I had ever experienced before.
14 At the time of my injury, my primary focus was on diagnosing and treating my lower back, neck and shoulder due to the more significant nature of those injuries. Consequently, I attributed any discomfort in my left shoulder to radiating pain from my right shoulder. As time passed, the condition of my left shoulder deteriorated. Initially, I experienced some discomfort in the left shoulder, assuming it was as a result of the ongoing pain in my right shoulder. However, by 2017, the pain in my left shoulder had intensified to an unbearable level. As a result, I sought pain management options specifically for the excruciating left shoulder pain from my GP, Dr Adel Zaki.”
Mr Zahrouni then referred to various entries in the notes of his general practitioner (GP), Dr Zaki between 2017 and 2022. He also alluded to the report of Dr Peter Conrad, general surgeon of 28 February 2023, which supported Dr Herald’s recommendation as “… my left shoulder injures stemmed directly from the overuse of my left arm due to the inability to use my right arm since the incident.”
Mr Zahrouni said that he had never experienced any injuries or pain in his left shoulder prior to November 2015. He said:
“It was only after the incident that I first began to feel pain and discomfort in that area.”
At the same point, [17], he said:
“…. Therefore I firmly believe that my employment was the primary contributing factor to the development, worsening, acceleration, exacerbation and deterioration of my left shoulder.”
Mr Zahrouni stated that he had not been involved in any incidents since November 2015 (and indeed it was agreed between the parties that Mr Zahrouni had not worked since that time).
Mr Zahrouni explained the disabilities and descriptions that the workplace incident had caused. He said at [20]:
“Despite the severity of my injuries, the inability to access the medically recommended treatment has left me feeling disappointed and uncertain about my future.”
It was noted that the statement was read by Mr Zahrouni’s solicitor to him in English and translated in Arabic.

Dr Jonathan Herald

Dr Herald, orthopaedic surgeon supplied a report dated 17 February 2023.[1]
[1] ARD page 47.
Dr Herald advised that he had treated Mr Zahrouni for the first time on 25 June 2018.
He performed surgery on Mr Zahrouni’s right shoulder on 23 October 2018 and he had sent a request for left shoulder arthroscopic rotator cuff repair surgery on 8 August 2022.
Dr Herald took a history that there had been a workplace injury on 11 November 2015, when Mr Zahrouni had to lift 200-250 heavy truck tyres during a day. Dr Herald said:[2]
“[Mr Zahrouni] developed neck pain, back pain and right shoulder pain…. When I saw him, he had pain in his neck and radiated to his whole right upper limb. Following that he was referred for MRI scans of his right shoulder, his neck and his back and given a course of conservative treatment. The MRI scan showed a SLAP lesion and labral tears in the right shoulder as well as cervical disc prolapse and an L5/S1 anterolisthesis….”
[2] ARD page 47.
Dr Herald advised the arthroscopy of 23 October 2018 included a “right shoulder arthroscopic rotator cuff repair, labral debridement and biceps tendonitis as in surgery a high grade partial thickness rotator cuff tear was found in [Mr Zahrouni’s] right shoulder….”
Dr Herald noted that Dr Donellan had organised an L5/S1 PLIF (posterior lumbar interbody fusion) to fuse L5/S1 due to ongoing pain in 2020, and that Dr Donellan had also recommended a C5/6 fusion to the cervical spine.
Dr Herald organised X-ray and MRI scan of the right and left shoulder for 2 and 6 June 2022 respectively, which revealed on the left shoulder a small partial thickness supraspinatus rotator cuff tear.
Dr Herald repeated that he had seen Mr Zahrouni for the first time in 2018. He was asked if the injury to the left shoulder was causally related to the subject accident. He said:[3]
“Based on the information available to me, it seems to me that he has had an overuse injury to his left shoulder. It developed after his right shoulder rotator cuff surgery 2018 he says he has had gradually increasing left shoulder pain; and in May 2022, he says it has been gradually getting worse over the past few years. As such, I suspect his multiple injuries have caused an overuse injury to his left shoulder.”

Dr Adel Zaki
[3] ARD page 47.

Mr Zahrouni’s GP, Dr Adel Zaki supplied a report dated 29 November 2023.[4] He first saw Mr Zahrouni on 5 May 2017. The history he took was that there was an onset of sharp lower back pain referred to the left leg following the lifting of tyres at the workplace on 11 November 2015. Dr Zaki said that there was a diagnosis of a “disorder of bilateral sprain and secondary spasm of the cervicodorsal and lumbosacral paravertebral muscles and consequent reactive depression and secondary anxiety.” He said:
“Rather he started shortly after to experience some rather persistent right shoulder pain…..”
[4] ARD page 56.
Dr Zaki said that his opinion was that Mr Zahrouni had sustained neck, upper back and shoulder disorders as a consequence to his lower back work related injury “simply because he had to do his rather usual regular ADLs and consequently he gradually started to develop such painful disorders.”
Dr Zaki said:
“Basically, his left shoulder pain has been related to rotator cuff muscle tear type disorder that was consequent to the fact that he could possibly sustained the same consequent to lifting heavy tyres at work and following post operative repair of same disorder with right shoulder he was mainly relying on left shoulder to perform most of his ADLs which resulted in exacerbation of the same and rather worsening of relevant rotator cuff muscle injury as mentioned in Dr Herald’s letter…..”
(As written.)

Clinical notes[5]
[5] ARD pages 59-70.

Dr Zaki’s clinical notes showed an entry on 7 September 2017 that recorded complaints of “some recent increase of his left leg and also left shoulder pain.” The entry noted that Mr Zahrouni was then “still on light duty type work.”
On 29 September 2017 there was an entry that Mr Zahrouni gave a history of “l shoulder pain for last several days worse lately.”
On 10 November 2017 there were further entries about the left shoulder, including an entry that that Mr Zahrouni had been feeling “more anxious lately” and which said “has been the case in partic since he started feeling increased left shoulder pain lately.”
On 23 March 2018, left shoulder pain was noted for the “last 1/7.” Pain in both shoulders was noted on 16 October 2021 and on the side of the left shoulder on 15 February 2022 and again on 2 June 2022.
There is no purpose in referring to every entry and I have noted that the applicant’s legal advisors took the sensible course of only lodging relevant entries that refer to the left shoulder, or to a shoulder which may have been the left shoulder.

Dr Peter Conrad

Dr Conrad, general surgeon, issued a medico-legal report for Mr Zahrouni on 28 February 2023.[6] He took a history that on Mr Zahrouni’s first day of employment, 11 November 2015, Mr Zahrouni lifted several tyres, and when lifting one tyre, felt severe pain extending from his neck down the left shoulder, left arm and down the back into the left leg. Dr Conrad noted, “there was some pain also in the right shoulder”. It was recorded that Mr Zahrouni worked a further nine days but has not resumed since he then stopped work.
[6] ARD page 50.
Dr Conrad noted, without detailing any dates, that Mr Zahrouni saw his GP Dr Zaki, who referred the applicant to Dr Herald. Dr Conrad noted that Dr Herald undertook repair of the right shoulder on 23 October 2018 “which has not helped him”.
Dr Conrad noted the L5/S1 fusion surgery performed by Dr Donnellan on 6 October 2020, which Dr Conrad noted had also not helped.
Dr Conrad noted that although cervical spine surgery had been recommended by Dr Coughlan, Mr Zahrouni did not go ahead with it as he had obtained no benefit from the other surgery.
Dr Conrad recorded the onset of the left shoulder pain, saying:[7]
“Due to favouring his right shoulder, he developed pain in his left shoulder on or about 7 August 2019 and this was noted by Dr Zaki in his clinical notes.”
[7] ARD page 51.

Dr Conrad noted that Mr Zahrouni is divorced, living by himself in an apartment. He had very little help doing housework and that a female cousin occasionally helped him for about 45 minutes per week on average.
In giving his opinion Dr Conrad gave said:[8]
“Due to favouring his right shoulder, he has developed a left shoulder injury and looking at Dr Zaki’s extensive surgery notes, this relates to the pain in his neck, right shoulder and back following the accident and looking at Dr Zaki’s surgery consultation on 23 March 2018, he has had left shoulder pain for the last week. ….”

Dr James Bodel
[8] ARD page 53.

Dr Bodel, orthopaedic surgeon, advised on 22 February 2022.[9] The history he took was that “on one particular occasion” Mr Zahrouni developed pain down the whole of the left side of the body including the neck and left shoulder and arm and the lower part of the back and left leg.
[9] ARD page 38.
Dr Bodel noted that Mr Zahrouni had been unable to return to work and had been unaware that he was entitled to be covered by workers compensation. Dr Bodel said:[10]
“….But eventually he steadily deteriorated over time both from the point of view of his left shoulder and back and he was eventually seen initially by Dr Mark Sheridan a neurosurgeon who recommended MRI scans on the cervical and lumbar spines which showed evidence of disc injuries…a posterior lumbar interbody fusion was recommended but not done at that time.”
[10] ARD page 39.
Dr Bodel noted that there was treatment from Dr Herald and he noted the surgery on the right shoulder on 23 October 2018. Dr Bodel noted:[11]
“He has no residual pain in the left shoulder”
[11] ARD page 40.
Dr Bodel recorded his findings on examination. He said:
“There is impingement on the right shoulder but not the left. There is no instability. …. There is no reflex abnormality and sensory impairment in the upper limbs.”
Dr Bodel also noted investigations, which included an MRI scan of the right shoulder on 28 June 2018 and an X-ray and ultrasound of the right shoulder on 7 December 2018. His diagnosis was:[12]
“The diagnosis here is a disc injury at C5/6, rotator cuff pathology in both shoulders the right a little worse than the left for which he has now had surgery on the right hand side…”
[12] ARD page 42.
When asked whether the workplace tasks were a substantial cause of the injuries, Dr Bodel said:
“Based on the history given and the medical evidence that I have seen, the injury that occurred at work is a substantial contributing factor to the injuries in this circumstance.”

Dr Frank Machart

The respondent relied on a report from Dr Frank Machart, orthopaedic surgeon, dated 13 May 2022. The history taken was:[13]
“While lifting one tyre [Mr Zahrouni] experienced a sudden pain which felt like an electric shock, extending from his neck, through the left arm, left side of the body, left back and into the left leg. He then reported that he also suffered pain in the right arm and the right shoulder. He then summarised and said that at the time of the injury left pain in the whole of his body.”
[13] ARD page 20.
Dr Machart noted the repair of the rotator cuff in the right shoulder on 23 October 2018 and the L5/S1 posterior lumbar interbody fusion on 6 October 2020.
Dr Machart said that Mr Zahrouni had declined a cervical operation as he was disappointed with the outcome from the previous two operations. Dr Machart noted that the applicant remained on narcotic analgesics.[14]
[14] ARD page 22.
Dr Machart gave a diagnosis of chronic pain. He said:
“I am not of the opinion that Mr Zahrouni suffered injury to the 4 separate areas of his body. It is not consistent that pathology in 4 separate areas of the body disc injury, cervical spine, rotator cuff injury left shoulder, rotator cuff injury right shoulder and aggravation of spondylolisthesis in the lumbar spine was caused by the mechanism of injury. It is not plausable that lifting a tyre causes 4 separate pathological processes all symptomatic 7 years down the track and none responding to treatment. My assessment is that he did not suffer substantial or serious injury at all. He sustained a sprain. The reason why he is not better is because treatment tackled pathological processes which were not caused by the injury. Doing that is a recipe for failure.
Treating something not injured is not going to result in improvement. The issue here now is chronic pain, pain behaviour and narcotic dependence. The proposition that there is pain in the neck, back, left arm, right arm, left leg, left shoulder, right shoulder all product of a single injury 7 years ago is not consistent….”
As to causation Dr Machart said:[15]
“I do not have before me evidence that he suffered injury to the left shoulder...”

Claim form
[15] ARD page 25.

Mr Zahrouni signed at claim form on 2 May 2016.[16] It stated that his GP at the time was Dr Sabri at the Fairfield Chase Medical Centre. The document was typewritten and contained the following statements:
“I was confused about the process. And my employment ended in November 2015.” (In answer to a templated question as to delay).
“Performing manual labour tasks. Particularly, lifting, or otherwise manipulating, heavy tyres. The tyres were too heavy to lift and I hurt my back.” (In answer to a question as to what happened).
[16] ARD page 12.
In answer to the question as to which parts of his body were injured, the typewritten answer said, “Back injury.” However handwritten additions were made to that entry which said “/shoulder injury/neck injury.”

SUBMISSIONS
Mr Necovski

Mr Necovski submitted that the explanation for the delay in the recorded complaint to a medical practitioner about Mr Zahrouni’s left shoulder was explained by the content of Mr Zahrouni’s statement. Mr Zahrouni explained the delay in saying that the left shoulder was not his primary focus and that indeed he came to a fusion of his lumbar spine and right shoulder surgery.
Further, Mr Necovski said, Mr Zahrouni did complain to his GP “shortly after the accident” although that complaint did not appear to be recorded. There was no doubt that the work he was doing required robust use of both shoulders. The criticism made against Mr Zahrouni that he reported the injury late was answered by his statement that he suffered numerous injuries and was preoccupied with them as they involved surgery to the right shoulder and the back.

Mr Necovski also said that it should also be taken into account that English was not Mr Zahrouni’s first language.
I was referred to various paragraphs in Mr Zahrouni’s statement of 11 April 2024 in which he said that he was unable to sleep at night due to the pain in the shoulder. Mr Necovski noted that Dr Herald ordered MRI scans in August 2022, and that he originally attributed any discomfort in his left shoulder to radiating pain from the right shoulder. Mr Zahrouni had not experienced such pain in his left shoulder before, and had not been in any accident or incident that could have resulted in injury to his left shoulder.
Mr Necovski referred to the history taken by Dr Bodel that Mr Zahrouni did not know that he was entitled to be covered by workers compensation. Mr Necovski referred to the claim form of 2 May 2016
He submitted that this evidence explained the delay in treatment for the left shoulder, and Mr Zahrouni should not be criticised for it.
Mr Necovski submitted that caution should be exercised when considering Dr Machart’s report, as liability had been admitted by the respondent for all of the claimed injuries except the left shoulder.
He submitted that there was support for the claim within the material. He referred to Dr Herald’s report of 25 May 2022 and the history taken that the left shoulder had progressed over time. There were two bases therefore on which the applicant should succeed, Mr Necovski said. Firstly, there was the frank injury which was supported in the clinical notes of Dr Zaki in September 2017 and Mr Zahrouni’s statement. Secondly, that the left shoulder condition was consequential, which was supported by Dr Herald and Dr Conrad. Dr Zaki provided support for both alternatives, Mr Necovski submitted.
Mr Necovski submitted that evidence that the shoulder condition was worsening over time was provided by the clinical notes from Dr Zaki. Mr Necovski referred to the entries of 29 September 2017 that related to a shoulder pain that had lasted for several days and got worse lately. He stated that injuries could consist of multiple causes, referring to Murphy v Allity Management Services Pty Ltd.[17]
[17] [2015] NSWWCCPD 35.
Although there was a reference to light duties in the evidence, Mr Necovski confirmed that in fact Mr Zahrouni had been off work since the injury.
Mr Necovski said that there was support for an overuse syndrome being the cause of Mr Zahrouni’s left shoulder condition, as he was overusing his shoulder everyday after the right shoulder surgery in the activities of his daily living.
He submitted that the surgery had been shown to be reasonably necessary by the medical evidence.

Mr Grimes

Mr Grimes submitted that the case now comprised of two alternative causes of action, namely whether there had been an injury caused on 11 November 2015 to the left shoulder and alternatively whether the left shoulder condition was as a consequence of that injury.
Regarding the first alternative, Mr Grimes submitted that the statement by Mr Zahrouni was concerned only with injury and did not suggest that his left shoulder pain had been caused by overusing it.
He submitted I would not accept the statement as it was devoid of probative detail. Mr Zahrouni did not mention the identity of the doctor that he allegedly mentioned his left shoulder pain to. Neither did he say when he had made that complaint. The applicant’s assertion that his complaints had not been accurately interpreted and therefore overlooked, again did not accord with the probabilities. He did not identify when, where or with whom he had the “initial examination following the injury occurred”.
Mr Grimes submitted that the evidence showed that there were no documented complaints at all until 2017, and if there were documented complaints regarding the other injuries before that time, they had not been provided. A Jones v Dunkel inference could accordingly be drawn.
In regard to Mr Zahrouni’s reference to the surgery he had undergone in 2018 to his right shoulder, Mr Grimes noted that there were no physiotherapist notes or any evidence of the treatment for that injury.
He also said that there was no lay evidence that would support any suggestion that he had been having difficulties following the surgery to the right shoulder.
Mr Grimes made other submissions regarding injury which I have by and large accepted and considered in my discussion, below.
His submissions are on record and available.
As to the condition of Mr Zahrouni’s left shoulder was a consequence of the subject injury, Mr Grimes again said there was no detail as to when the condition first occurred, whether it was post or pre-surgery. There was no complaint of left shoulder pain to Dr Herald when he operated on the right shoulder. There were no investigations taken of the left shoulder when there was of the right.
Mr Grimes noted that the entries in Dr Zaki’s clinical notes did not mention the right shoulder and offered no support to this claim.
Mr Grimes noted Dr Zaki’s report of 29 November 2023 informed that that Dr Zaki had first seen Mr Zahrouni on 5 May 2017. Dr Zaki was clearly not the treating medical practitioner prior to that time, and Mr Grimes asked rhetorically, who was?

Dr Zaki’s opinion as to causation consequently had little weight. Again the main submissions by Mr Grimes are incorporated in my decision and there is no useful purpose in repeating them.

Mr Necovski in reply

In reply, Mr Necovski referred to Dr Herald’s opinion that there had been an overuse injury to the left shoulder following the right shoulder surgery in 2018 which had been gradually increasing and in May 2022 getting worse. Mr Necovski submitted that Dr Herald’s opinion would carry some weight as he was the surgeon in 2018.
So far as the criticisms of Dr Bodel’s report were concerned, Mr Necovski said it was important to note that Dr Bodel assessed Mr Zahrouni in February 2022, prior to the MRI of the left shoulder of June 2022. Although Dr Bodel had not found anything of note in the left shoulder on examination, the scan of 2 June 2022 showed significant pathology in both the right and left shoulders.

Mr Grimes (by leave)

Leave was granted for Mr Grimes to make further submissions about Dr Herald that he had overlooked.
Mr Grimes submitted that Dr Herald’s opinion that there had been an overuse injury was inconsistent and completely contrary to the other opinions – particularly that of Dr Zaki.

Mr Necovski

Mr Necovski submitted that it was not unusual for symptoms of overuse to come on prior to surgery being undertaken.

DISCUSSION

Mr Necovski said all that could possibly be said in support of Mr Zahrouni’s case. He was however particularly reliant on Mr Zahrouni’s statement as to the various evidentiary difficulties in the case.
The first is that although the injury occurred on 11 November 2015, the first record of it in the medical material before me was that of 7 September 2017 – almost two years following the subject injury. I note that in his report of 29 November 2023, Dr Zaki stated that he first saw Mr Zahrouni “in this regard” on 5 May 2017. Dr Zaki related the history he took of “some rather sudden onset of sharp lower back pain referred to left leg following lifting some big tyres at workplace back then.” That note of 5 May 2017 was not before me, and I note (with some appreciation) that the applicant’s solicitors went to some trouble to curate Dr Zaki’s clinical notes, so that only those were relevant to the claimed injury were lodged. I accordingly have some reservation as to whether Mr Zahrouni first reported it on 5 May 2017. I bear in mind that caution must be taken when considering the contents of clinical notes, as described in Collins v Bunnings Group,[18] but this inconsistency is one of many, which together have given me pause.
[18] [2021] PIC 313 at [221].
Dr Zaki’s report did not engender any confidence that I could rely on his opinion in any event. His comment that Mr Zahrouni “was diagnosed” raised the question as to who diagnosed him. Dr Zaki’s description of a “disorder of bilateral sprain and secondary spasm of the cervicodorsal and lumbosacral paravertebral muscles and consequent reactive depression and secondary anxiety” was difficult to decipher, but clearly did not involve the left shoulder.
Further, Dr Zaki appeared to distance himself from the diagnosis he had just related by saying “rather he started shortly after to experience some rather persistent right shoulder pain” by which I can assume Dr Zaki meant that there was an onset of right shoulder pain shortly after the subject injury. On one reading, it looked perhaps as if Dr Zaki discounted the diagnosis he had given in favour of the onset of right shoulder pain.
Dr Zaki said that an MRI “performed at that time” showed labral tears in the right shoulder was also problematic. The earliest MRI of the right shoulder was taken on 28 June 2018. Dr Zaki’s opinion regarding the left shoulder was hedged about with so many conditions that very little weight can be attached to it.
Dr Zaki said as noted:
“Basically, his left shoulder pain has been related to rotator cuff muscle tear disorder was that consequent to the fact that he could possibly sustained the same consequent to lifting heavy tyres at work and following post operative repair of same disorder with the right shoulder...”
Dr Zaki’s use of the English language may have obscured his meaning, but words such as “basically” and “possibly” do not engender much confidence in what it was Dr Zaki was trying to say. There has been no allegation that the condition of the left shoulder was caused by the nature and condition of his work and in view of the fact that Mr Zahrouni could only have been at work for a number of days before his injury, that suggestion may be put to one side. Indeed the evidence at one point said that Mr Zahrouni injured himself on his first day at work.
The reference by Dr Zaki to “Dr Herald’s letter” also is problematic as it raises the inference that Dr Zaki’s opinion was simply an interpretation of what Dr Herald had to say.
In any event Dr Zaki’s opinion is speculative because he was not treating the applicant during the relevant time between 11 November 2015 and 7 September 2017.
There are also a number of problems with Dr Herald’s reports. In the first place he was not consulted until 25 June 2018, some three years following the accident, and when he was there was no suggestion of any problem with the left shoulder. Indeed the MRI scan taken on 28 June 2018 was only of the right shoulder. The first history Dr Herald took regarding Mr Zahrouni’s left shoulder was on 25 May 2022. He reported:[19]
“[Mr Zahrouni’s] left shoulder has been getting worse over the last few year[s]…”
[19] ARD page 44.
Dr Herald did not advise when he first learned of the left shoulder problem, and the expression “the last few years” was also unhelpful. The first investigations of the left shoulder, an x-ray and MRI scan, took place on 2 June 2022, which is sufficiently removed from either the date of injury or the date of the surgery on the right shoulder to establish any temporal connection to either event.
The only support for Dr Herald’s hypothesis that Mr Zahrouni’s left shoulder symptoms were caused by overuse came from Dr Conrad in his report of 28 February 2023. Dr Conrad’s opinion, too, presented some difficulties in interpretation. As indicated, the history he took was that the applicant “felt severe pain extending from his neck down the left shoulder” at the time of the injury, and yet Dr Conrad stated “categorically” that the applicant’s left shoulder impairment was “due to overusing the left arm due to his inability to use the right arm.” As also indicated, Dr Conrad referred to a clinical note from Dr Zaki as support for his opinion, which he identified as being “on or about 7 August 2019.”
Firstly, there was no such note in the material before me. As mentioned above, the applicant’s solicitors had taken some care to ensure that the relevant notes from Dr Zaki were before the Commission, and it follows that if there were such a note, its contents would not have assisted the applicant’s case.
Secondly, the entry of 23 March 2018 in Dr Zaki’s notes – also relied on by Dr Conrad - whilst recording left shoulder pain for one week, did not mention the right shoulder, let alone that the recorded pain was due to favouring it.
Thirdly, Dr Conrad took a history that the applicant injured his left shoulder at the time of his injury, and there was accordingly an inconsistency in Dr Conrad’s opinion. He did not explain why he thought “categorically” that Mr Zahrouni’s left shoulder had been caused by overuse, when he had already recorded that Mr Zahrouni had felt severe pain from his neck down the left shoulder (relevantly) when he lifted the tyre.
Fourthly, Dr Conrad was incorrect when he recorded the history that Mr Zahrouni continued work for another nine days. Mr Necovski agreed during the hearing that Mr Zahrouni has not worked again since the injury occurred, and there was no other evidence to support that history. It logically follows that since Mr Zahrouni had not been doing any work since November 2015, the nature of the overuse that was caused by the surgery to the right shoulder in 2018 was simply his activities of daily living. Such a proposition gives me considerable doubt.
Fifthly, Mr Zahrouni himself did not suggest that the right shoulder surgery had caused the overuse injury. His statement alleged that he had suffered the left shoulder injury at the time he lifted the tyre, but that his other injuries were such that he did not “particularly emphasise” the pain in his left shoulder.
The report of Dr Bodel did not suggest that the applicant had suffered a consequential condition. The history recorded by Dr Bodel was that when the applicant was unloading tyres, he developed pain down the whole of the left side of the body involving the neck and left shoulder, relevantly. According to Dr Bodel, Mr Zahrouni did not know he was entitled to workers compensation and his left shoulder (and his back) deteriorated over time until he was seen by “Dr Mark Sheridan.” Dr Sheridan has not provided a report in this case, and no explanation has been given for its absence, I accordingly assume that it too does not assist the applicant’s case. It would seem that the focus of Dr Bodel’s opinion was on whether the proposed cervical fusion was reasonably necessary, as he only commented on whether that proposed surgery. I note in passing that Dr Bodel recorded that Mr Zahrouni did not complain of any residual pain in his left shoulder on 22 February 2022.
I have already made two findings based on the rule enunciated in Jones v Dunkel.[20] A significant example is to be found within the claim form. During his submissions, counsel for the respondent asked rhetorically who was the medical practitioner to whom Mr Zahrouni complained before he consulted Dr Zaki in 2017. The answer to that question, as indicated above, was supplied in the claim form. It is curious that although Mr Zahrouni told Dr Bodel he did not know that he was entitled to be covered by workers compensation, nonetheless the content of the claim form shows that by 2 May 2016 enough about the system to lodge a claim form.
[20] [1959] HCA 8.
The claim form demonstrated that when it was originally lodged it related only to the back. I infer that Mr Zahrouni was advised to add the handwritten amendment of “shoulder injury/neck injury” after the form was completed. Bearing in mind that Mr Zahrouni did not speak English, and that, having arrived in Australia in 2012 he did not find employment until he began with the respondent in November 2015, I also infer that Mr Zahrouni had the benefit of some advice as to how to make a claim. I do not however infer that the reference to “shoulder” was a reference to the left shoulder. It is more likely that it was a reference to the right shoulder in view of the comparatively early treatment that was given exclusively to the right shoulder.
The claim form also identified Mr Zahrouni’s nominated treating doctor, a Dr Sabri from the Fairfield Chase Medical Centre in Spencer Street, Fairfield. I note that the GP relied on by the applicant is Dr Zaki at the Liverpool Family Medical Centre, and that in his report of 29 November 2023 Dr Zaki’s address was 240 Macquarie Street, Liverpool.
It follows that Dr Sabri was the answer to counsel’s rhetorical question. It also follows that in being named as the applicant’s nominated treating doctor, Dr Sabri had been consulted by the applicant in relation to the accident which the claim form described. The failure by the applicant to supply evidence from Dr Sabri’s practice, or to advance any explanation as to why it had not been supplied, is a major obstacle in satisfying the applicant’s onus of proof. The rule in Jones v Dunkel enables me to find that evidence from Dr Sabri would not have assisted the applicant’s case.
Mr Necovski attempted to fill this evidentiary lacuna by submitting that I could rely on the applicant’s statement for that purpose, but in the face of the contradictory and inconsistent expert evidence that the applicant lodged, his statement does not achieve that result.
Mr Zahrouni’s statement was dated 11 April 2024, some nine years after the injury. I have no doubt that Mr Zahrouni has done his best to recall the events he described as accurately and honestly as he was able. However, the effluxion of time carries with it a danger that subsequent events might well cause a person to innocently reconstruct his/her memory of those events. That is particularly so when that person has a vested interest in the outcome of proceedings this statement is concerned with, as often occurs in compensation cases. I can no more rely on Mr Zahrouni’s recall as at April 2024, then I can on his recall of events as described to the medical practitioners in the case. They are not consistent and his version that he injured his left shoulder at the time of the accident but was diverted by his more serious injuries had no contemporaneous support, when such support was potentially available in the form of evidence from Dr Sabri.
There was much to recommend Dr Machart’s comments. His summary that it was not plausible that lifting a tyre had caused four separate pathological processes, all symptomatic seven years later, and none responding to treatment. Be that as it may, it is only the condition of the left shoulder that has been the subject of this claim and I note that the other injuries have been accepted by the insurer. It is not without relevance that, having undergone surgery on two occasions, the applicant declined to proceed with his cervical fusion on the basis, according to Dr Conrad, that he had received no benefit from the earlier two procedures. If that were the case, it raises the question as to why he is seeking a declaration that he is entitled to surgery for his left shoulder. Whatever the reason, I concur with Dr Machart that there is no reliable evidence that the applicant injured his left shoulder on 11 November 2015. He was required to prove pursuant to s 9A of the 1987 Act that his employment had been a substantial contributing factor to the injury to his left shoulder, and he has not done so.
Neither am I persuaded that the current condition of his left shoulder is consequential to either the injury itself, or the 2018 surgery to the right shoulder.
When looked at as a whole, I am thus far from persuaded that the applicant has satisfied his onus.
Accordingly, I make the orders set out above.

[2024] NSWPIC 409

30 July 2024