CERTIFICATE OF DETERMINATION OF MEMBER  	

	
Citation:	Faitrouni v Scotts Refrigerated Freightways [2021] NSWPIC 140	
		
APPLICANT:	Rayan Faitrouni	
		
RESPONDENT:	Scotts Refrigerated Freightways (NSW) Pty Ltd 	
		
Member:	Ms Jane Peacock	
		
DATE OF DECISION:	26 May 2021	
		
CATCHWORDS:	WORKERS COMPENSATION- Claim for lump sum compensation; undisputed injury to the lumbar spine and left lower extremity in a fall from a vehicle in the course of employment; dispute concerned whether thoracic spine also injured; evidence weighed in the balance; Held- satisfied on the balance of probabilities that the thoracic spine also injured; finding in favour of the applicant; matter remitted for referral to a Medical Assessor to assess the degree of permanent impairment, if any, of the lumbar spine, thoracic spine and left lower extremity. 
	
Determinations made:	1.	The matter is remitted for referral to a Medical Assessor for assessment of the degree of permanent impairment, if any, of the lumbar spine, left lower extremity and thoracic spine as a result of injury on 20 February 2018.

2.	The Application to Resolve a Dispute and all documents attached admitted.

3.	The Reply and all documents attached admitted.

4.	The respondent has leave to rely on the report of Dr Hanna dated 9 April 2021.

STATEMENT OF REASONS

BACKGROUND

1.	By Application to Resolve a Dispute (Application) Ms Rayan Faitrouni (the applicant) seeks lump sum compensation as a result of injury to her lumbar spine and left lower extremity and injury alleged to her thoracic spine on 20 February 2018 in the course of or arising out of her employment. 

2.	The Respondent is Scott’s Refrigerated Freightways (NSW) Pty Ltd (the respondent). The respondent was insured at the relevant time for the purposes of workers compensation by Allianz Australia Workers Compensation (NSW) Limited (the insurer).

3.	The respondent denied liability for the claim in relation to the injury alleged to the thoracic spine.

ISSUES FOR DETERMINATION

4.	It is not disputed that the applicant injured herself on 20 February 2018 when she fell whilst alighting from a car in the course of or arising out of her employment. It is not disputed that she injured her lumbar spine and left lower extremity (pleaded as knee, ankle and hindfoot). It is disputed that she also injured her thoracic spine.

5.	This is a claim for lump sum compensation. It is not disputed that in the event the applicant is successful on the question of liability, then the matter would be remitted for referral to a Medical Assessor (MA) for assessment of the degree of permanent impairment, if any, of the lumbar spine, left lower extremity and thoracic spine as a result of injury on 18 February 2018.

PROCEDURE BEFORE THE COMMISSION

6.	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

7.	The following documents were admitted into evidence before the Commission by consent and considered in making this determination: 

For the applicant:

(a)	Application and attached documents.

For the respondent:

(b)	Reply and attached documents.

Disputed Document

8.	There was a matter of contention between the parties about a further document being a letter from the GP Dr Hanna dated 9 April 2021 to the applicant’s lawyers. The applicant had filed and served the letter with an application to admit late documents, but the applicant did not seek to rely on this document. The respondent sought to tender it in evidence to which the applicant objected. I allowed the document on the basis that it was a report from a treating doctor addressed to the applicant lawyers and so there could be no prejudice. The report was admitted on the basis it would be a matter in which each party could make submissions on the weight to be given to this letter.

Oral Evidence

9.	The applicant did not seek leave to adduce oral evidence and the respondent did not seek leave to cross-examine the applicant.

FINDINGS AND REASONS 

10.	There is no dispute that the applicant suffered an injury to her lumbar spine and left lower extremity on 20 February 2018. It is disputed that she also suffered injury to her thoracic spine.

11.	This case must be determined on the evidence and in accordance with the law.

12.	The applicant gave evidence in a statement dated 18 February 2021 about the fall on 20 February 2021. In the course of her employment, she was required to attend a manager’s meeting and travelled there with co-workers. She was alighting from a Toyota Hi-lux utility in which she was a passenger. She gave evidence:

“As I proceeded to get out of the left rear passenger side of the vehicle my foot slipped on the aluminium foot landing of the utility. I reached out and held onto the door of the utility in an attempt to prevent me falling and to maintain my balance, but it caused me to twist my torse and the door of the vehicle then hit me on my left side.

As a result of the workplace accident, I sustained injuries to my mid and lower back, my left leg, left ankle, and my left knee. I was in pain, but I still attended the manager’s meeting as required by my employer.

Despite my accident and injuries sustained at work I was not advised to fill in a Workcover Injury report by my employer. As such I did not attend to this straight after my accident.”

13.	The applicant gave evidence that she tried to manage her symptoms herself with heat packs and analgesics. She continued to work.

14.	On 22 February 2018, two days after the accident, the applicant was at work and one of her co-workers Stacy McKinnon recommended that she see a doctor on observing her trying to climb stairs with difficulty.

15.	On 22 February 2018, the applicant attended her GP Dr Hanna who referred recorded injury to the back and positive findings on examination and referred for radiological investigations in the form of an x-ray of her thoracic spine and CT scan of her lumbar spine. The GP also certified her unfit for work.

16.	The applicant’s evidence is that she injured her thoracic spine on 20 February 2018. This is consistent with her GP, on first consultation two days after the injury, referring her for an 
x-ray of the thoracic spine. 

17.	On 23 February 2018, the applicant underwent x-ray to her thoracic spine and CT scan of the lumbar spine on referral from her GP.

18.	The x-ray of the thoracic spine revealed underlying degeneration. All the evidence supports the view that the applicant was asymptomatic in respect of the underlying disease in her thoracic spine at the time of the accident on 20 February 2018. The applicant says that she experienced pain in her thoracic spine as a result of the injury and this was reported to the GP who referred her for x-ray of the thoracic spine.
 
19.	She gave evidence that in view of her ongoing symptoms her GP certified her unfit for work. I note that certification refers to injury to the back and does not confine it to the lumbar spine. She gave evidence that despite this certification her employer required that she work from home on the computer for approximately 20 hours per week. She felt if she did not do these tasks her employer would not let her return to her role once she recovered. She says she pushed herself.

20.	She started physiotherapy for her injuries which continued to some time late in 2019. 

21.	In March 2018 she says she was referred for further radiological investigations which appeared to be of the knee and ankle and lumbo-sacral spine.

22.	She goes onto give evidence:

“In late April 2018 I formally returned to work for my employer on light duties. I continued to experience pain, stiffness and discomfort in my lower thoracic spine, lumbar spine, left ankle and left knee.”

23.	She found it increasingly difficult to be at work because of her physical injuries.

24.	On 7 July 2018, her employment was terminated.

25.	The applicant gave evidence that she continues to experience pain, stiffness, and restriction of movement in her thoracic spine as a result of the injury on 20 February 2018 as well as symptoms in the other body parts that are not the subject of dispute.

26.	Dr Dias, consultant occupational physician, was the independent medical expert (IME) qualified on behalf of the applicant.

27.	Dr Dias saw the applicant on 28 May 2019 at the request of her lawyers and provided a report back to them on the same date.

28.	Dr Dias took a history. He noted the applicant was asymptomatic prior to the accident on 20 February 2018 as follows:

“Ms Faitrouni states that she did not have any previous injuries or known pre-existing conditions affecting her thoracic spine, lumbar spine, knees or ankles prior to the subject work-related accident on 20 February 2018. She was pain free and asymptomatic in all of these regions prior to the subject accident.”

29.	Dr Dias took a history of the accident which is broadly consistent with the evidence given in the applicant’s statement as follows:

“As she was getting out of the utility vehicle, she recalls that her left foot slipped on the sideboard (which was covered with a slippery aluminium surface) and as a result she momentarily lost her balance and grabbed onto the left rear passenger door, which was partially opened, Ms Faitrouni recalls that the left rear passenger door impacted into her lower back and thoracic spine region and she jarred her left knee and left ankle. She was able to keep ger feet and not lose her balance however, merely experienced pain in her lower back thoracic spine, left knee and left ankle.”

30.	Dr Dias notes under “subsequent progress”:

“Ms Fiatrouni states that she has unfortunately continued to experience ongoing symptoms of pain, stiffness and discomfort affecting her thoracic spine, lumbar spine, left knee and left ankle daily over the course of the last 15 months since the subject accident. Her symptoms of thoracic spine pain and lumbar spine pain were aggravated to a mild degree as a result of her involvement in a subsequent rear end motor vehicle accident on 16 August 2018.”

31.	Dr Dias noted the ongoing symptoms in the thoracic spine and lumbar spine and left lower extremity, all of which have been under conservative management since the accident on 20 February 2018.

32.	Dr Dias noted the impact on the applicant’s activities of daily living.

33.	Dr Dias conducted a psychical examination. In respect of the thoracic spine, he found positive findings on examination. Those findings were positive on the left side compared to the right, which is consistent with the reported injury.

34.	He also reviewed the radiological investigations.

35.	In respect of the thoracic spine, he provided the following diagnosis, noting that the applicant has symptoms and signs consistent with:

“Ms Faitrouni has sustained a persistent aggravation of previously asymptomatic degenerative thoracic spondylosis, secondary to acute muscoligamatis strain. Ms Faitrouni has subsequently sustained a mild aggravation of this condition following a rear end motor vehicle accident on 16 August 2018.

36.	Dr Dias goes onto opine:

“In my opinion. Ms Faitrouni’s former employment for Scott’s Refrigerated Freight Ways, was and remains the main substantial contributing factor to her current conditions affecting her thoracic spine, lumbar spine, left knee, and left ankle. Ms Faitrouni did not have any pre-existing injuries with respect to her thoracic spine, lumbar spine, left knee, or left ankle prior to the workplace accident of 20 February 2018 and was entirely pain free and asymptomatic in all these regions prior to the workplace accident. She has surfed with continual symptoms of pain, stiffness and discomfort affecting her thoracic spine, lumbar spine, left knee, and left ankle over the course of the past 15 months since the subject accident. I note that Ms Faitrouni does have radiological evidence of pre-existing degenerative change in her thoracis spine and lumbar spine however these pre-existing degenerative changes were asymptomatic prior to the subject accident. In my opinion, Ms Faitrouni has sustained a persistent aggravation of her previously asymptomatic degenerative changes, an aggravation which persists through to the present day and is likely to endure on a chronic basis into the foreseeable future. Furthermore, Ms Faitrouni has sustained acute frank soft tissue injury to her left knee and left ankle which remains symptomatic through to the present time.

I also note that Ms Fiatrouni was involved in a subsequent motor vehicle accident on 16 August 2018, sustaining a mild aggravation of her injuries affecting her thoracic spine and lumbar spine, Overall, at the present time in my opinion, 80% of Ms Faitrouni’s symtomogies  and disabilities with respect to her thoracic spine and lumbar spine are attributable to the workplace accident of 20 February 2018. A 10% of her symtomolgy and disabilities relate to her pre-existing degenerative change in her thoracic spine and lumbar spine and, 10% of her symptomatology and disabilities with respect to her thoracic spine and lumbar spine relate to the subsequent motor vehicle accident of 16 August 2018.”

37.	He goes onto assess impairment of the toarcic spine as DRE II (5%WPI) and deducts one tenth under section 323 to account for pre-existing degenerative change and attribute one tenth to the subsequent motor vehicle accident, leaving a 4% WPI as a result of the injury on 20 February 2018.

38.	Of course, in the event the applicant is successful on the liability question the impairment assessment of the thoracic spine will be a matter for the MA. That is, I do not have to determine whether the applicant has suffered any permanent impairment to her thoracic spine but whether she injured her thoracic spine on 20 February 2018. The question of whether she has any permanent impairment as a result of any injury so found will be a matter for the MA. The question of the level of any impairment that results from the underlying degeneration or any impairment that results from the subsequent motor vehicle accident in August 2018 would also be a matter for the MA.

39.	The applicant says she continued to experience pain in her thoracic spine from the injury. The respondent points to the records of Dr Dave, Dr Girgis and Dr Sheridan that the problems persisted with the lower back and the thoracic spine is not mentioned.

40.	However, when I weigh all the evidence in the balance, I note that the applicant’s evidence that she hurt her thoracic spine on 20 February 2018 is consistent with the contemporaneous referral from Dr Hanna for an x-ray of the thoracic spine and this is consistent with the history given to Dr Dias. That her ongoing treatment might have been concentrated on the lumbar spine and left lower extremity does not mean that she did not injure her thoracic spine on 20 February 2018.  Very little weight can be given to the GPS letter dated 9 April 2021 which simply says she injured her lumbar spine (which is not in dispute). It is clear that she also injured other body parts. This letter is of little to no assistance. All the evidence must be weighed in the balance and again I am only dealing with the question of whether she suffered injury to her thoracic spine. I am not dealing with a claim for weekly compensation or claim for medical expenses. I don’t have to determine whether any injury to the thoracic spine has resolved. The claim is limited to a claim for lump sum compensation and again, the question of whether there is any permanent impairment that results from any injury so found is not a matter for me but is a matter for the MA.

41.	Dr Smith, orthopaedic surgeon, is the IME qualified on behalf of the respondent. He has provided the reports, dated 15 May 2018 and 12 June 2018, respectively.

42.	Dr Smith saw the applicant on 2 May 2019 and provided a report dated 15 May 2018.

43.	Dr Smith records a history that she was getting out of a dual cab utility:

“and as she was getting out of this her foot slipped on the running board and she fell and twisted herself, the vehicle door struck her back and she landed on her left side.”

44.	He notes the left sided pains became worse and she consulted her GP. He noted the referral for scans including x-ray of the thoracic spine and CT of the lumbar spine.

45.	He opines that she suffered injury to lumbar spine in the form of aggravation of previously asymptomatic degenerative disease. He does not mention the thoracic spine.

46.	Dr Smith saw the applicant again on 28 May 2020 at the insurers request and provided a report dated 12 June 2020.

47.	He is asked a series of questions which he answers, and these include the following:

“Do you consider that Rayan sustained an injury to her thoracic spine arising out of or in the course of her employment, namely the incident on 20/02/2018?”

He answers:

“There were no symptoms consequent to the accident of 20 February 2018 regarding her thoracic spine. About the second accident of 16 August 2018, whereby she injured her neck, that could be responsible for pain felt in the thoracic spine. If one sees 1000patients who have thoracic spine pain or shoulder blade pain unilaterally or bilaterally, 90% or perhaps 95% of these patients who have this pain have referred symptoms from the cervical spine.”

If yes was Rayan’s employment the main contributor to the contraction, aggravation acceleration, exacerbate of deterioration of a disease process.
Not applicable

“Do you consider that the accident on 20/02/2018 was a substantial contributing factor to the thoracic spine injury?’
the motor vehicle accident of 20 February 2018 was not a substantial contributing factor to any thoracic spine symptoms she might have.”

48.	When I weigh all the evidence in the balance, I prefer the evidence of the applicant, consistent with the contemporaneous notes of Dr Hanna recording an injury to the back on 20 February 2018 and referring the applicant for an x-ray of the thoracic spine and supported by the opinion of the IME Dr Dias to the opinion of Dr Smith. I am satisfied when I weigh all the evidence in the balance that the applicant suffered an injury to her thoracic spine on 20 February 2018 when she fell in the course of or arising out of her employment with the respondent whilst alighting from the Toyota Hilux, aggravating pre-existing degenerative changes in her thoracic spine that were asymptomatic prior to injury. Her fall and hence her employment was the main contributing factor to the aggravation. Whether permanent impairment of the thoracic spine results from the injury so found will be a matter for the MA and the thoracic spine will be included in the remittal of the matter for referral to the MA along with the undisputed lumbar spine and left lower extremity. The documents to be forwarded to the MA are those admitted into evidence in these proceedings.

49.	Accordingly, I will order as follows:

1.	The matter is remitted for referral to a Medical Assessor (MA) for assessment of the degree of permanent impairment, if any, of the lumbar spine, left lower extremity and thoracic spine as a result of injury on 20 February 2018.
2.	The Application and all documents attached admitted.
3.	The Reply and all documents attached admitted.
4.	The respondent has leave to rely on the report of Dr Hanna dated 9 April 2021.