Al Hadidi v Form1 Building & Construction Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Al Hadidi v Form1 Building & Construction Pty Ltd [2022] NSWPIC 334
APPLICANT:	Ahmed Mater Kareem Khluwi Al Hadidi
RESPONDENT:	Form1 Building & Construction Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	28 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation and incurred section 60 of the Workers Compensation Act 1987 expenses; whether applicant a worker or deemed worker; lumbar injury and secondary psychological condition in dispute; extent of ongoing incapacity; significant factual disputes in the evidence; calculation of pre-injury average weekly earnings (PIAWE); Held – applicant was a deemed worker; lumbar injury and secondary psychological condition accepted; applicant had at all times no current work capacity; respondent’s PIAWE accepted; awards for weekly compensation and medical expenses.
ORDERS MADE	1. The respondent to pay weekly compensation from 10 September 2019 onwards pursuant to ss 36(1)(a) and 37(1)(a) of the Workers Compensation Act 1987 based on a PIAWE figure of $625, as periodically indexed. 2. The Commission declines to make any order for ongoing weekly compensation in accordance with s 38 of the Workers Compensation Act 1987. 3. The respondent to pay the applicant’s reasonably necessary medical and related treatment expenses in accordance with s 60 of the Workers Compensation Act 1987 upon production of accounts, receipts and/or Medicare Notice of Charge.
DETERMINATIONS MADE:	1. The applicant was a ‘deemed worker’ pursuant to cl 2 of Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998. 2. The applicant sustained an injury to his lumbar spine pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 on 9 September 2019. 3. The applicant sustained a secondary psychological condition as a result of the injury to his lumbar spine. 4. During the period from 10 September 2019 onwards, the applicant had no current capacity for work as a result of the injury on 9 September 2019. 5. The applicant’s pre-injury average weekly earnings (PIAWE) figure was $625.

STATEMENT OF REASONS

BACKGROUND

Mr Ahmed Mater Kareem Khluwi Al Hadidi (the applicant) claims to have sustained an injury to his lumbar spine in the course of employment with Form1 Building & Construction Pty Ltd (the respondent) on 9 September 2019. The applicant also claims to have sustained a psychological condition as a result of the injury to his lumbar spine.
The applicant made a claim for compensation which was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 6 May 2020.
The applicant sought review of that decision and the liability dispute was maintained in a further notice issued on 30 July 2021 and in email correspondence to the applicant’s solicitor on 24 November 2021.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 17 December 2021.
The applicant seeks weekly compensation on an ongoing basis from 10 September 2019 and compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for incurred medical expenses.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 29 March 2022 by telephone. The applicant was represented by Mr Dewashish Adhikary of counsel, instructed by Mr Mason Kassira. The applicant was assisted in the proceedings by an interpreter in the Arabic and English languages. The respondent was represented by Mr Fraser Doak of counsel, instructed by Ms Katie Farrar. Representatives from the insurer were also present.
Despite a lengthy conciliation conference, the parties were unable to reach a resolution of the dispute that was mutually acceptable. Directions were made admitting late documents into evidence and establishing a timetable for written submissions. The parties were informed of the Commission’s intention to determine the outstanding disputes on the material before it at the conclusion of that timetable.
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.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant was a worker or “deemed worker”;
(b)    whether the applicant has sustained a secondary psychological condition or primary psychological injury as a result of the event on 9 September 2019;
(c)    the extent and quantification of any incapacity resulting from the injury on 9 September 2019;
(d)    the proper calculation of pre-injury average weekly earnings (PIAWE), and
(e) the entitlement to s 60 expenses.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to an Application to Admit Late Documents lodged by the respondent on 28 January 2022;
(d)    wages schedule lodged by the respondent on 22 March 2022;
(e)    documents attached to an Application to Admit Late Documents lodged by the applicant on 29 March 2022;
(f)    written submissions lodged on behalf of the applicant on 19 April 2022;
(g)    written submissions lodged on behalf of the respondent on 4 May 2022, and
(h)    written submissions in reply lodged on behalf of the applicant on 9 May 2022.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by him on 17 December 2021 and 24 March 2022.

Statement dated 17 December 2021

In his first statement, the applicant gave evidence that he arrived in Australia as an asylum seeker from Iraq in about September 2012. The applicant’s English communication skills were very limited.
The applicant said he had five years of experience as a formwork carpenter in the construction industry in Australia.
The applicant said he commenced employment with the respondent on or about 12 August 2019. The applicant was working a construction site in Granville and reported to a Mr Ahmad Sobeih. The applicant had been provided with Mr Sobeih’s details through a relative.
The applicant said he spoke to Mr Sobeih on his mobile phone in the week before 12 August 2019. Mr Sobeih agreed to employ the applicant as a formwork carpenter and asked to meet the applicant in person to finalise their discussions.
The applicant met Mr Sobeih at the Granville work site on 12 August 2019 and the respondent agreed to employ the applicant on the following terms:
(a)    Monday to Friday:
(i)ordinary hours 7.00am to 3.30pm
(ii)break times from 9.30am to 10.00am and 12.30pm to 1.00pm
(b)    Saturday:
(i)ordinary hours 7.00am to 12.00pm
(ii)break times 9.30am to 10.00am
(c)    Overtime:
(i)after 3.30pm on Monday to Friday; and
(ii)after 12.00pm on Saturday.
The applicant was to be paid an hourly rate of $45 per hour for ordinary hours plus superannuation.
The respondent would supply work materials and equipment including tools, gloves and protective glasses.
The applicant would complete tasks as directed by the respondent and work at the respondent’s work sites.
The applicant would be paid in accordance with a timesheet on a weekly basis.
The respondent could terminate his employment on one week’s notice.
The applicant said he had no control of the tasks he was required to perform for the respondent and would only complete tasks as directed.
The applicant’s tasks included erecting framework for internal walls, doors, windows, lift shafts and stairs; erecting beams and columns; installing ceiling sheets and wall sheets; stripping framework after concrete had been poured; and carrying heavy items around the worksite. The work involved repetitive, heavy lifting and carrying, bending, twisting, kneeling and squatting; working above shoulder height and working below waist height.
Each morning, the applicant would meet with Mr Sobeih and he would direct the applicant and other workers to complete certain tasks. Mr Sobeih would check up on the tasks throughout the day and provide further directions. The applicant said Mr Sobeih put pressure on him to finish tasks quickly.
The applicant only worked at the Granville worksite for the respondent. The applicant was not asked or required to submit any tax invoices. The applicant was not permitted to delegate tasks. The applicant did not employ or contract anyone to complete any of the tasks he was directed to complete.
The applicant confirmed that there was no written employment agreement.
On 9 September 2019, the applicant was tasked with stripping and then carrying timbers following a concrete pour. This involved removing timbers and plywood from concrete, cleaning the timbers, removing nails and carrying and lifting the timbers to move them to another part of the worksite. The applicant was stripping and carrying timbers from about 7.30am until he got injured. The applicant was working alone without assistance.
The applicant said:
“While I was stripping the timbers and using pulling force to remove a nail, I felt a sharp pain in my lower back when the force of my pulling caused the hammer to pull out the nail and come back at me quickly which caused my back to twist back forcefully.
The twisting caused me to a feel a sudden sharp pain in my lower back. I attempted to continue working for a few more minutes as I thought the sharp pain would go away but I felt the pain worsening.”
The applicant reported the incident to first-aid and requested that an ambulance be called. The people from first-aid and Mr Sobeih refused to call an ambulance. The applicant was told that he would be taken to a medical centre in Parramatta which was regularly used by the respondent for workplace accidents.
The applicant saw Dr Jamshid Roozi Talab and told Dr Talab that he was injured at work and that he felt a sharp pain in his lower back. The applicant was prescribed Panadeine Forte and Voltaren and asked to return in a few days.
On 11 September 2019 the applicant returned to Dr Talab’s Medical Centre. The receptionist tried to force the applicant to attend the on-site physiotherapist. The applicant informed the reception that he was in too much pain for anyone to touch his back and he came to see Dr Talab not the physiotherapist.
The applicant saw Dr Talab later the same day with Mr Sobeih present in the consultation room acting as an interpreter.
The applicant recalled informing Dr Talab that he was still feeling sharp pain in his lower back, which was worse than it had been two days prior. Dr Talab and Mr Sobeih spoke to each other in English during the appointment and the applicant could not understand what was being discussed.
The applicant said he now understood that Dr Talab cleared him to work without restriction despite his complaints of sharp pain which was getting worse. The applicant felt that his complaints of pain were not taken seriously and Dr Talab was not acting in the applicant’s best interests.
On 26 October 2019, the applicant attended Gilgamesh Medical Centre and saw Dr Hussein Alseneid. In the intervening period, the applicant had been taking painkillers to manage his pain and resting. The applicant barely left home in the six weeks between his last appointment with Dr Talab and his first consultation with Dr Alseneid.
Dr Alseneid had prescribed a number of medications including Tramadol, Valium and Lyrica.
The applicant described ongoing symptoms and restrictions in his lumbar spine as well as psychological symptoms. The applicant said his mood had been down due to his ongoing back pain radiating into his lower limbs.
The applicant said he was aware that the respondent alleged he had provided tax invoices for each week of work. The applicant denied providing tax invoices to the respondent and alleged that the invoices provided to the insurer were fraudulent. The handwriting on the invoices was not his and the applicant’s name was spelt incorrectly. The ABN on the tax invoices did not belong to the applicant. The applicant had previously obtained an ABN at the request of a contractor but never used it.
The applicant said he was paid by Mr Sobeih on either Friday or Saturday in accordance with the hours he had worked that week. The applicant would sign a timesheet as he entered the worksite and as he left the worksite at the end of the day. The applicant would be handed an envelope of cash containing amounts varying between $1,600-$1,800.
The applicant said he had offered his bank account details, tax file number and superannuation details to Mr Sobeih who said he did not need them now and would get them at a later time.
The applicant said he had previous discomfort with his back due to being a formwork carpenter for many years. The discomfort in the applicant’s back did not restrict him from work and he was able to manage the pain by taking painkillers if required.
The applicant confirmed that he had been on antidepressant medication since his arrival in Australia in 2013 due to leaving his family in Iraq. The applicant had been managing his psychological condition well. The applicant said his psychological condition had deteriorated since the workplace accident.
The applicant agreed that he had attempted to return to work on 12 and 13 September 2019. The applicant was struggling with pain throughout the day and taking many painkillers to manage his pain. The applicant was not able to complete tasks properly and recalled informing Mr Sobeih that he was in too much pain and could not work.
The applicant said he had not been able to return to work since 14 September 2019, in any capacity, due to his injuries and condition.
The applicant said he had been seeking treatment from his general practitioner but could not afford to seek treatment from a psychologist or psychiatrist.
The applicant responded to a statement made by Mr Sobeih as part of a factual investigation commissioned by the insurer. The applicant denied that there was a verbal arrangement that he would provide tax invoices for work carried out. The applicant denied that he only worked when needed. The applicant denied that he provided his own personal protective equipment and tools of trade. The applicant denied that he could speak English fluently.
The applicant said he was expected to work in accordance with agreed work days and hours set by the respondent. Sometimes the applicant missed work due to being ill.
The applicant denied telling Mr Sobeih that he was okay after the workplace accident.
The applicant denied working at a building site in Canberra following the workplace accident. The applicant had previously worked in Canberra prior to commencing employment with the respondent. The applicant denied contacting Mr Sobeih on two occasions looking for work.
The applicant denied that he was a subcontractor and expressed the belief that he was entitled to superannuation, annual leave and sick leave as an employee of the respondent.

Statement dated 24 March 2022

In his supplementary statement, the applicant referred to a timesheet attached to the respondent’s factual investigation report and said it was fraudulent and misleading.
The applicant said that in his first week of employment. He worked 27 hours from Wednesday to Friday. In his second week of employment, the applicant worked Monday to Friday 7.00am to 4.00pm with overtime from 3.30pm to 4.00pm, totalling 45 hours.
In his third week, the applicant worked a total of 45 hours.
In his fourth week, the applicant worked total of 50 hours.
The applicant was injured in his fifth week of employment on Monday, 9 September 2019.

Mr Dhaher

The applicant relies on a witness statement prepared by Mr Badr Dhaher on 17 December 2021. Mr Dhaher said he had resided with the applicant since they arrived in Australia in 2012.
Mr Dhaher said he recalled on 9 September 2019 the applicant had returned home from work in visible pain. The applicant was clutching his back and walking slowly. The applicant described feeling a sharp pain in his back was completing a task work. The applicant had been driven to a doctor in Parramatta by his employer.
Mr Dhaher said that since the accident on 9 September 2019 the applicant had not been the same person and was always complaining about being in pain. The applicant was always in a low mood and depressed, was agitated easily and had outbursts of anger.
Mr Dhaher said the applicant’s condition did not appear to be improving and was getting worse.
Mr Dhaher did all the domestic chores including cooking, cleaning and shopping. Mr Dhaher or another housemate would drive the applicant to his medical appointments and sometimes purchase medication for him from a local pharmacy.

Mr Doali

Correspondence from Mr Muntather Doali, a registered tax agent, dated 9 December 2021, addressed to the applicant’s solicitor confirmed the applicant’s ABN number and said a number ending in “…641” did not belong to the applicant.
An extract from the Australian Business Register showed the applicant’s ABN which was cancelled on 3 March 2020.
An attachment from an Australian Tax Office (ATO) database showed the results of a search for the ABN number ending in “…641” and the applicant’s date of birth did not match. Mr Doali said this demonstrated that the ABN did not belong to the applicant but did belong to another individual with a similar name.
A further letter from Mr Doali dated 24 March 2022 confirmed that the ABN number ending in 641 did not belong to the applicant. No income reports or declarations were associated with the applicant’s ABN number according to the ATO’s records.
Various tax return documents were attached to Mr Doali’s letter.

Factual investigation

A factual investigation report prepared for the insurer by Brooksite Investigations, dated 21 May 2020, is in evidence.

Ahmad Sobeih

A signed statement from Mr Ahmad Sobeih, dated 27 April 2020, is attached to the investigation report. Mr Sobeih said that he was the sole director of the respondent company. The company provided labour hire to other construction companies around the Sydney area.
The applicant was introduced to Mr Sobeih through his cousin who was also subcontracting to the business. At that time, the company was subcontracting to Marques Formwork, providing labour hire to a building site at Granville where residential apartments were being constructed.
Mr Sobeih said the applicant was contracted to perform labouring duties at the Granville site under a verbal arrangement. It was agreed that the applicant would provide weekly invoices for work carried out, which were paid in cash. The applicant physically handed these invoices to Mr Sobeih every Tuesday for payment two days later by cash in an envelope.
Mr Sobeih said the applicant never provided him with a tax file number or superannuation details and he never requested this information as the applicant was a subcontractor.
The applicant’s hours of work varied. The applicant usually worked 7.00am to 3.20pm and occasionally on Saturdays from 8.00am to 2.00pm. The applicant was entitled to a 20 minute unpaid tea break and paid half hour lunch break.
The applicant provided his own personal protective equipment and tools of trade as did his cousin.
The applicant completed the site induction training on 13 August 2019, included a written assessment. The applicant spoke English fluently and indicated in that assessment that English was his preferred language.

Mr Sobeih was the site supervisor and had responsibility for managing and instructing workers on site.
There were times when the applicant was rostered to work but never showed up.
On 8 or 9 September 2019, Mr Sobeih received a call saying the applicant had injured his lower back. Mr Sobeih went to the site office to speak to the applicant, who said he was okay and just needed to rest. Mr Sobeih told the applicant he needed to be checked by a doctor. The applicant had already received medical attention from the first-aid officer on site. The applicant told Mr Sobeih that he injured his back while stripping a small piece of plywood and felt a cramp in his back. The applicant did not fall.
The applicant was taken to the IMMEX doctor in Parramatta about 10 minutes from the building site by another worker. Mr Sobeih did not attend the appointment. Mr Sobeih later called the applicant who said the doctor had diagnosed him with a muscle spasm.
The applicant did not attend for his shift the next day. The applicant had another appointment with the doctor in Parramatta. Mr Sobeih did not attend that consultation and to his knowledge the applicant went to the consultation alone. Mr Sobeih denied ever attending any medical consultations with the applicant.
The applicant later called Mr Sobeih to say he had been cleared to return to work on pre-injury duties. Mr Sobeih came to the Granville site with his clearance certificate. Mr Sobeih did not observe the applicant move with any obvious restrictions.
The applicant did not work on 11 September 2019 but did return to work on 12 and 13 September 2019. Mr Sobeih did not observe the applicant move with any obvious restrictions on that occasion. The applicant presented and worked normally.
Mr Sobeih said that he first became aware that the applicant had made a claim for workers compensation on 9 March 2020. A co-worker told Mr Sobeih that the applicant had been working at a building site in Canberra with him.
During February 2020, the applicant had called Mr Sobeih on two occasions looking for work but no work was available.
Mr Sobeih said that a week after the applicant commenced subcontracting to him he had been caught drink driving and had absconded from the police. The applicant was arrested at home and did not attend work on certain days because he was required to attend court. The applicant’s unreliability was one of the reasons why Mr Sobeih did not offer him any further work.

Unsigned statement by the applicant

Also attached to the investigation report is unsigned statement prepared by the applicant with an investigator on 16 April 2020.
In this statement, the applicant said he had registered for an ABN and performed carpentry contract work under the ABN:
“Since arriving in Australia, I registered for an ABN number and performed carpentry contract work to two companies, AG in Sydney and IC Canberra. I do not know any other information about these companies. I ceased contracting to these two companies when I commenced working for my current employer, name unknown. Currently, I do not have the details of my ABN number. I acquired the contract work through friends and by word of mouth in the building industry.”
The applicant disclosed a spinal injury whilst working in Canberra in respect of which a claim for workers compensation was made.
With regard to employment with the respondent, the applicant stated:
“I did not work under my ABN, at the start I was promised that this company would deduct taxation and pay my superannuation. I tried to give Ahmid my tax file number and superannuation details. I approached him with the documents and he told me to keep them for later on. He never asked me these documents again.
From the time I started working for Ahmid Sabih he always paid my wages every six days in a week. He paid me between $1600.00 and $1800.00 every six days.”
The applicant said that whilst working for Mr Sobeih he was not using his ABN or subcontracting to anyone else.
The applicant had a verbal agreement to work Mondays to Fridays from 7.00am to 3.30pm and Saturdays from 8.00am to 12.00pm. The applicant received morning tea break for 15 to 20 minutes and a lunch break between 12.20pm and 1.00pm. The agreed base hourly rate was between $43 and $44.
The applicant denied providing any invoices for services performed. The applicant denied completing a time sheet. The applicant did sign an attendance sheet at the commencement and conclusion of his shift.
The applicant provided his own tools, hard hat, gloves, protective eyewear and steel capped boots.
On 9 September 2019, the applicant was stripping timber using his own hammer. The applicant removed the timber and felt immediate pain in his lower back. The applicant nearly fainted and was feeling dizzy.
The applicant went to the site office and was approached by another employee. The applicant told him he was injured. The applicant asked for an ambulance but his request was refused. The applicant said he wanted to go home but was told management wanted to take him to their company doctor. The applicant was driven to the doctor by a man who spoke Arabic in his own car. The doctor examined the applicant and gave him medication.
The applicant said he had not returned to work since that day.
A few days later, Mr Sobeih called the applicant and told him to return to the doctor in Parramatta. He offered to pay the applicant half pay and said that he could return to work once recovered.
The applicant was taken by his family to the doctor in Parramatta. Mr Sobeih met them at the doctor’s office and attended the consult. Mr Sobeih translated the conversation with the doctor for him. The applicant was asked to sign a document which he now understood to be a clearance stating he was fit to work. Mr Sobeih told the applicant that he would allocate him light duties. After three days, the applicant received a call from Mr Sobeih saying there was no work for him.
The applicant consulted his own doctor at Gilgamesh Medical Centre on 26 October 2019 and was referred for an X-ray. This showed a spinal injury. The applicant did not know whether this was an aggravation of the old injury with his previous employer.
The applicant was prescribed pain medication and told the doctor about his psychological condition. The applicant was prescribed antidepressants.
The statement indicates that the applicant terminated the interview without advising the interpreter by disconnecting the call at 1.50pm.

Attendance Sheet

An attendance sheet from the respondent indicates that the applicant worked between 14 August 2019 and 13 September 2019.
It is recorded that on 9 September 2019 the applicant worked for only two hours. The applicant did not work on 10 or 11 September 2019 but did work eight hours on 12 September 2019 and six hours on 13 September 2019.

Invoices

Handwritten invoices to the respondent from “Ahmad Al Hadidi”, with an ABN number ending in “…641” are attached to the investigation report.
On 17 September 2019, there was an invoice for $350 for 14 hours of labour hire between 11 September 2019 and 17 September 2019.
On 10 September 2019, the applicant invoiced $725 for 29 hours of labour hire between 4 September 2019 and 10 September 2019.
Invoices for the three preceding weeks are also in evidence.

ABN Look Up

An ABN Look Up result for the ABN number ending in “…641” showed it was registered to “Ahmed Al Hadidi” and had been active from 28 April 2017. The main business location was said to be “NSW, 2161”.

Driver’s License

The applicant’s drivers licence gives his name as “Ahmed Mater Kareen Khluwi Al Hadidi”. The applicant’s address was in postcode 2161.

Treating medical evidence

Clinical records from IMMEX at Parramatta, record that the applicant was seen by a physiotherapist, Eugene Lee on 9 September 2019. That consultation was recorded as follows:
“Commenced due to: on 9/9/19 awkward movement in workplace
Symptoms at onset: constant severe lower back sharp pain
Symptoms now: as above no p+n and numbness
Worsened by: back mvts, bending and sitting
Eased by: resting
PMHx: nil SHx: noted in medical notes
…
Initial impression: acute NSLBP
RTW co-ordinator contacted: no
Objective: Lsp AROM FLX, LF and ETXN refused to move due to LBP Rot to R=L 10 deg tight Rt LES
Treatment heat 10 min warning and consent given STM LES Stretches trunk rotation in standing10 times every an hour”
A consultation on the same date with Dr Jamshid Roozi Talab was noted:
“onset of the right lower back pain after awkward movement in workplace
pain7/10
denied nurological Sx
…
Job: carpenter
O/E: paraspinal tenderness/tightness lumbar R>L Limitation of lumbar movement :all directions”
A SIRA certificate of capacity issued by Dr Talab, dated 9 September 2019 recorded an onset of lower back pain after the applicant twisted his back the wrong way. A referral to a physiotherapist was suggested. The applicant was certified as having capacity for suitable activities for usual hours and days, until 11 September 2019.
On 11 September 2019, physiotherapist, Eugene Lee recorded that the applicant was observed at reception and called for physiotherapy but refused:
“Patient was called by Eugene for scheduled Physio treatment. Patient put his middle finger up to Eugene and said no, I'm seeing the doctor. Eugene said yes, you will see the doctor and said the F word and again put his middle finger up saying ‘you are trying to make money from me’ then walked out of the office. I called Vidhi to inform her of the inappropriate unacceptable behaviour. Vidhi apologised profusely and assured that the employee will be dealt with accordingly.
10.40am Vidhi called to apologise again, made an appointment to see Dr Roozi for his certificate of capacity this afternoon. For now, do not book with Physio.”
The applicant was seen by Dr Talab later on 11 September 2019. Dr Talab recorded:
“attendd with Ahmad his supervisor
no pain/concern
FROM
requesting Final/PID”
A SIRA certificate, dated 11 September 2019, certified the applicant as fit for pre-injury duties.
Booking slips and various correspondence contained in the IMMEX clinical records described the applicant’s employer as Marques Formwork.
A clinical note was recorded by Dr Hussein Alseneid of Gilgamesh Medical Centre on 26 October 2016 predominantly in relation to psychological symptoms:
“depressed, agitated has been on anti depressant, but not sure when was stopped
on going thinking
has not been to his family for 9 yrs
was working until injured at work
living in grany flat
his cousons looking after him”
The applicant was prescribed Cymbalta and a multivitamin. No examination of the lumbar spine or complaints of symptoms at the lumbar spine were recorded.
On 6 November 2019, Dr Alseneid recorded:
“still with same symptoms
has not slept fpr 4 days on tramadol for back injury, run out, in sever pain
also on diazepam for sleeping , run out”
On 13 November 2019 was noted that the applicant had attended a telehealth consultation with a psychiatrist and Arabic interpreter. The applicant was to be referred to a local mental health team.
A report from consultant psychiatrist, Dr Kavita Seth, dated 13 November 2019 to Dr Alseneid noted that the applicant was on not working due to chronic back pain. The applicant’s “chief complaint” was described as:
“Struggling with poor appetite and overthinking about his family back home”
Dr Seth recorded a history as follows:
“Ruminates about his life in general and about leaving his family back home. Feels guilty about not being with his family-states he ruminates about his past life accuses US for the war and taking away lraq's resources. States he came to Australia and was hoping to bring his family here however his not been able to bring his family due to his visa status. ‘I can only bring my family when I become a citizen and I only have a bridging visa’. States he doesn't talk to his family daily as he said they keep asking him questions on why he is not bringing them to Australia. Feels tired in the day and has become reclusive. Appetite ··· not good, concentration - unable to focus on his day to day activities and cries uncontrollably.”
Dr Seth diagnosed mixed depression and anxiety and alcohol and cannabis use disorder.
The applicant was said to be unable to work but reasonable with his activities of daily living.
Dr Seth summarised the applicant’s condition as follows:
“Young man history of mood and anxiety disorder, predisposed by past trauma in his working life, precipitated with migration to Australia and perpetuated by ongoing separation from his family. Fortunately, he has a likeable quality and with medications and psychology sessions, he will make good progress in his mental state. Protectively he has a supportive social network and risk to self and others is low due to protective factor - his children. His prognosis depends on resolving his trauma and gaining CB skills in managing his anxiety through long term therapy.”
On 4 December 2019, Dr Alseneid noted:
“was doing very well for sometime
seen by acute care mental health team
thappy with there services
get angry with insurance for his back injury
has the clame number
the centrelink stopped his payment for the last 3 months
the insurance not paying him as well
has no money to support his life
instructed to attend further assessment at bondi beach
not happy with them
he went to the centrelink, also get angry with them, they sent him arabic speaker officer, he gave them 3days to get some money to feed himself
also complains of sob, cough wheezing.”
On 7 December 2019, Dr Alseneid noted:
“known with Asthma, Depression, chronic neck and lower back pain, back injury”
The applicant was referred for a CT scan of the cervical spine and lumbar spine.
The report of a CT scan of the cervical spine and lumbar spine performed on 9 December 2019 recorded severe neck pain radiating to both arms with numbness and increasing lower back pain. The scan of the lumbar spine was reported to show:
“1. Minor degenerative change in the lumbar spine.
2. No evidence of neural impingement.
3. No degenerative facet joint change.”
Similar findings were recorded at the cervical spine.
On 11 January 2020 it was noted:
“sever back pain
review CT; minor degeneration of Lumbar and cervical spines
tramadol not helpping
feeling better in himself”
On 28 January 2020 the applicant was reported to be doing very well. Apart from non-resolving back pain sometimes affecting his sleeping.
Back pain and leg pain as well as psychological symptoms were noted in consultations in February 2020.
On 27 February 2020, Dr Alseneid recorded:
“had a work accident on 9/9/19, nothing reported here as was not attending this centre, nor reported to his previous GP, at the time of the injury, was taken to a dr and treated for 2 days. His solicitor talk to me and advise with above”
In the same record, Dr Alseneid noted:
“Doing very well Fully mobile, independent, active
…
improved sign of depression”
The same observations were recorded on 7 March 2020 and 29 May 2020.
A record on 10 March 2020 noted:
“attended with claim number for an injury happened on 9/9/19 his solicitor range asking for wc certificate The patient states that on 09/09/2019 was at work, stripping wood from the concrit, the developed sever sudden back pain and collapsed and couldn't walk. Was taken by his employer to their doctore where he was treated. Since then he is complaining of lower back pain radiated to both legs. on 17/12/19 attended with back pain, prescribed pain killer and CT Cervical spine and Lumbar spine requested CT was inconclusive also his solicitor asking for a copy of his medical record the pt happy signing consent form to release his medical record”
The applicant was referred for an MRI of the cervical spine and lumbar spine and given a WorkCover certificate.
Increasing back pain, leg pain and psychological symptoms were noted in a consultation on 6 April 2020.
On 7 May 2020, the applicant was given a further referral for an MRI of the cervical spine and lumbar spine. It was noted that the applicant had lost the previous request form.
On 11 June 2020, the applicant reported neck and lower back pain. It was noted that the applicant had undergone an MRI and was to see a psychiatrist.
For the remainder of 2020, Dr Alseneid recorded fluctuating psychological symptoms and intermittent references to increasing back pain.
On 8 July 2020, Dr Seth reported that she had seen the applicant again with an Arabic interpreter. Dr Seth recorded the same history and diagnoses as in her 13 November 2019 report. The applicant was reported to be unable to work.
In report dated 14 October 2020, Dr Seth described the applicant’s subjective symptoms:
“Mood at present – 5/10 - feeling better, sleeping 6-8 hours a night disturbed sleep at night however naps in the day. States he ruminates about past war trauma and worries that tension betweeen countries could worsen due to COVID situation. Feels guilty about not being with his family especially during COVID crisis. States he came to Australia and was hoping to bring his family here however his not been able to bring his family due to his visa status and current COVID condition. States he needs repeat scripts for his medications and is happy with his doses. Feels tired in the day and attributes this to his back pain.”
On 2 December 2020, it was recorded that the applicant admitted taking too many drugs and alcohol and had decided to quit the drugs. Various withdrawal symptoms including agitation, abdominal pain, heartburn, shaking, anxiety and hyperhidrosis were noted.

On 24 December 2020 it was noted:
“break down couldn't continue sever neck pain, lower back pain, reduced mobility, sever stiffness, nausea, depressed, not functioning restart his pain killer med”
Chronic back pain, anxiety and insomnia were noted on 27 January 2021.
On 6 May 2021. Dr Alseneid noted:
“attended with sever lowe back pain, crying not tolerated however on multiple pain killer”
For the remainder of 2021, regular consultations were noted where the applicant said he had run out of his painkilling medication.
On 23 July 2021, the applicant was recorded to be:
“Doing very well
Fully mobile, independent, active”
The same observations were recorded in a consultation on 23 August 2021 on which occasion, Dr Alseneid also recorded:
“No sign of depression”
On 10 March 2022, Dr Alseneid issued a SIRA certificate of capacity certifying the applicant as having no current work capacity from 11 July 2020 to 10 April 2022. Dr Alseneid said the applicant had not been fit for work since the injury and had been provided with Centrelink medical certificates.

Dr Porteous

The applicant relies on medico-legal reports prepared by occupational physician, Dr Andrew Porteous, dated 7 October 2021 and 1 March 2022.
In his first report, Dr Porteous noted that the applicant was seen by video conference with an interpreter.
Dr Porteous said he had reviewed and considered clinical records from Gilgamesh Medical Centre and IMMEX; MRI and other scans of the applicant’s cervical spine and lumbar spine; the medicolegal report of Dr Frank Kai Tai Chow, dated 17 March 2021; and other documents and information.
The applicant reported that he was stripping timber using a hammer, bending over using forceful actions on 9 September 2019 when he had an onset of lumbar back pain referred into both legs. The pain was significant. The applicant had been off work since.
The applicant had not been referred to physiotherapy but had seen an orthopaedic surgeon, on a couple of occasions. Dr Porteous noted that no reports were on file. MRIs of the cervical and lumbar spines on 1 June 2020 showed mild to moderate broad-based disc bulges at L4/5 and L5/S1 with no distinct impingement at either level.
The applicant reported ongoing moderate to significant lumbar back pain with associated numbness in the pelvis and both feet and toes.
The applicant reported a long history of depression. Dr Porteous noted that Dr Chow had diagnosed a major depressive disorder as a result of the workplace injury.

The applicant denied any medical history of note apart from the pre-existing depression. The applicant reported occasional lumbar back pain of mild nature with heavy work and bending. The applicant’s back pain was generally manageable and he did not ever have any treatment for it.
Dr Porteous gave the opinion:
“He reports ongoing moderate to significant lumbar back pain with numbness in the pelvis and in both feet and the toes. The reason for his ongoing pain is as a result of the accident and the reported neurological are referred from the spine injury. There is however no evidence clinically or on the radiology of radiculopathy.
He had MRI scans of the Lumbar spine on the 1/6/20 that showed at L 4/5 and L5/S1 mild to moderate broad based disc budges with these only abutting the right L4 nerve root at the higher level, but with no distinct impingement.
He does report chronic pain in the lumbar back since the subject accident and I can only conclude based on that history that it is more likely than not as a result of his subject accident.
I would note he appears to have a substantially disabling psychological condition, and that is more likely than not the main cause of the degree of disability, reduced capacity and him remaining off work.”
Dr Porteous said it was “plausible” that the applicant’s work duties caused the back injury. The applicant had pre-existing lumbar degenerative disease, consistent with his age. Dr Porteous gave the opinion that the applicant had an aggravation, exacerbation deterioration or acceleration of the pre-existing degenerative change with the subject accident.
With regard to the applicant’s capacity for work, Dr Porteous gave the opinion:
“At this point, he reports substantial lumbar back pain with associated marked disability compounded, by what appears to be a substantial psychological condition.
All of these result in a substantial reduced capacity and disability, to the point that he has not been able to return to work.
If he did not have his apparently severe psychological condition, it is likely that he could better engage in some rehabilitation and would have been able to go back to some form of work related to his training, experience and qualifications.
However, his psychological conditions and related psychomotor retardation and withdrawal along with the associated disability, appears to be compounding and prolonging the high levels of lumbar back and disability he reports.”
In his supplementary report dated 1 March 2022, Dr Porteous recorded again the history of lumbar pain since 9 September 2019 which had not resolved.
The applicant reported seeing an orthopaedic surgeon back specialist on two occasions but no report was on file.
Dr Porteous referred to the MRI performed on 1 June 2020.
The applicant reported substantial pain and substantial depression which had resulted in him not returning to work since the accident.
Dr Porteous referred to the reports of medicolegal expert, Dr Roger Pillemer, dated 6 August 2020 and 14 August 2020.
Dr Porteous gave the opinion:
“In my opinion given all of the findings when seen on the balance of probabilities it is more likely than not that Mr Al Hadidi’s employment was the main contributing factor to the aggravation, exacerbation, deterioration or acceleration of the disease.”
Asked to comment on an opinion given by Dr Pillemer that it was more likely than not that any aggravation caused by the injury would have settled, Dr Porteous responded:
“Mr Al Hadidi did not ever report pain in the injured areas prior to the subject accident. He reported pain starting in those areas with the subject accident. In all of the reports on file, including Dr Pillemers, there is no record of this ever having ceased, even for a few days.
In making this statement Dr Pillemer overlooks the clear temporal association between onset on this with the injury at work and then the consistent history of pain in the area since, including to date.
There is no evidence on the file or in his history that the original injury ever resolved.
There is no evidence of other factors that would cause the ongoing pain.
I would also note that the basis of such a view is often epidemiological and statistical and those rely on population outcomes, rather than the facts and outcomes that occur for one specific individual.
With all due respect, the above conclusion by Dr Pillemer is then in my opinion at odds with the ‘balance’ of the evidence.
I therefore disagree with this, for the reasons as discussed above”

Dr Chow

The applicant also relies on a medicolegal report prepared by consultant psychiatrist, Dr Frank Kai Tai Chow, dated 17 March 2021. The applicant was seen with an Arabic interpreter.
The applicant said he last worked on 9 September 2019. The applicant sustained a back injury at work was stripping timber. The applicant reported worsening back, buttock and leg pain and hand numbness. The applicant had not been reviewed by a physiotherapist or orthopaedic surgeon. The applicant had a limited understanding of his physical pathology.
The applicant said he had not put in a claim for workers compensation until he contacted his lawyer recently because he did not know he was entitled to workers compensation.
The applicant reported feeling depressed and anxious. The applicant was skipping meals but had put on weight due to immobility. The applicant slept poorly, was easily irritable had feelings of worthlessness and hopelessness and avoided crowds. The applicant neglected his hygiene and did not attend to household chores or grocery shopping. The applicant did not drive and stayed home mostly. The applicant’s symptoms were not improving.
The applicant had been referred to a telehealth psychiatrist two or three times in the last 12 months. The applicant had not been referred to a psychologist.
The applicant said he did not think he could work due to his pain, physical limitations and concentration difficulties.
The applicant was prescribed Duloxetine, Valium, Tramadol, Somac and Lyrica.
The applicant had been prescribed antidepressant medication since he was in immigration detention on Christmas Island in 2013. Dr Chow recorded that the applicant had been stabbed by mafia back in Iraq and was in hospital for three months before coming to Australia.
After performing a mental state examination, Dr Chow gave the opinion:
“It is likely that his physical injury has exacerbated his underlying psychiatric condition and is therefore preventing him from re-engaging at work. It continues to affect his perception of his pain levels and his ability to re-engage at work.
He reported experiencing sufficient symptomatology to warrant the diagnosis of major depressive disorder. He will need ongoing psychological and psychiatric treatment. He remains unfit for work. The prognosis of his condition is likely to be guarded due to his prolonged symptoms and lack of improvement.”
With regard to the applicant’s pre-existing condition, Dr Chow commented:
“There is a history of pre-existing history or trauma and psychiatric condition for which he has been on medication over the years, but he was able to function and work full time prior to the injury in September 2019.”

Dr Pillemer

The respondent relies on medicolegal reports prepared by orthopaedic surgeon, Dr Roger Pillemer, at the request of the applicant’s solicitor, dated 6 and 14 August 2020.
In his first report, Dr Pillemer said the applicant was seen with an interpreter and his male cousin present.
Dr Pillemer took a history of the applicant sustaining an injury 11 months earlier on 9 September 2019 whilst lifting timber at work. The applicant developed severe pain in the whole of his spine from his neck to sacrum associated with severe headaches. The applicant reported feeling that he had injured the whole of his spine. Numbness in both arms and legs and severe constant headaches were reported.
The applicant said he had been performing formwork for the last nine years and had never had to take any time off work because of his neck or back.
The applicant had one physiotherapy session and had been taking medication including Tramadol.
With regard to the applicant’s past history, Dr Pillemer noted:
“As mentioned Mr Al Hadidi has had previous problems with his low back and neck, and questioned about this, he said symptoms would only go as high as 2/10 and he could go for 2 to 3 months without any particular back or neck pain, and he says he never had to take any time off work because of back or neck symptoms.”
The applicant reported being very restricted with a maximum walking distance to the car. The applicant did not drive other than short distances. The applicant did not perform any housework or go shopping. The applicant managed self-care with great difficulty.
Dr Pillemer recorded his observations on examination as follows:
“He walks with a slow measured gait and was unable to walk on heels and toes, and shows very marked restriction of low back movement, with virtually no movement being possible. This was obviously not confirmed on indirect observation.
When asked to elevate his arms in the standing position he was reluctant to move his arms at all, but with encouragement he was able to elevate to 60° on either side. Please note that while undressing and dressing, and placing garments over his head, a very satisfactory range of shoulder movements was noted to be present.
Straight leg raising was limited to 40° bilaterally, but when sitting with his legs over the end of the examining couch, his knees can be fully extended without any obvious discomfort.”
Dr Pillemer noted that a CT scan carried out on 9 December 2019 showed some mild degenerative changes and minor posterior broad-based disc bulging at the lumbosacral level with no central or foraminal stenosis.
Dr Pillemer gave the opinion:
“As far as diagnosis is concerned, in my opinion the most likely explanation is that Mr Al Hadidi did aggravate some underlying problems with his lumbar spine at the time of injury on 9 September 2019. I would also accept that he may well have ongoing neurological symptoms in his lumbar spine but please note that there is no evidence to suggest any involvement (that is, no radiculopathy).
Unfortunately there is a very significant functional component present (abnormal illness behaviour) as evidenced by:
• The marked restriction of straight leg raising not confirmed on indirect testing.
• The diffuse sensory loss of the whole of his body which is a non-organic finding.
• The inability to elevate either shoulder above 60° on direct examination, whereas a very satisfactory range of elevation is noted on indirect observation.
• The marked discomfort to palpation from the occiput to the sacrum, as well as the significant discomfort with simulated axial loading.
• The marked restriction of back movement, once again not confirmed on indirect observation.”
Dr Pillemer accepted that the lifting incident on 9 September 2019 could have aggravated an underlying mechanical problem in the lumbar spine. Dr Pillemer was not able to account for the significant ongoing symptoms or clinical findings and the claimed extent of disability on an orthopaedic basis.
Dr Pillemer noted the additional mental health issues present.
Any aggravation which occurred on 9 September 2019 had more likely than not settled by that stage.
With regard to the applicant’s capacity for work, Dr Pillemer gave the opinion:
“From a purely orthopaedic point of view, in my opinion Mr Al Hadidi would be fit for a wide range of employment opportunities and activities, possibly with the exception of activities that would place excessive stress on his lumbar spine. Please note however that I am unable to give a firm opinion in this regard. While it is certainly possible that he may well have ongoing symptoms in his lumbar region, the extent of these is impossible to discern in the presence of the significant functional component.”
In a further report dated 14 August 2020, Dr Pillemer was asked for an opinion as to the applicant’s fitness for pre-injury duties. Dr Pillemer responded:
“As noted at the time I examined Mr Al Hadidi he would not have been fit to get back to pre-injury duties, and I would suggest that this would be mainly on a psychological basis. As noted he does have a long history of problems with his low back, and it is certainly possible that he may not be fit for his pre-injury duties on the basis of his longstanding low back problem. As noted in my report to you, it was my opinion that it was more likely than not that any aggravation caused by his injury on 9 September 2019, would have settled.”

Applicant’s submissions

In written submissions, the applicant withdrew any allegation of an injury pursuant to s 4(a) or 4(b)(i) of the 1987 Act or primary psychological injury pursuant to s 4(b)(ii).
The applicant submitted that he was either a worker or a deemed worker and had sustained a consequential psychological condition as a result of his physical injury. The applicant was totally incapacitated for work as a result of his physical injury and/or psychological condition. The applicant’s PIAWE was $1,800.
The applicant submitted that his statement evidence and the letters from Mr Doali demonstrated that he was, at the time of his injury, a worker in the respondent’s employ. The applicant submitted that his evidence would be preferred to the respondent’s evidence. The applicant had identified a number of issues with the respondent’s evidence, including that the invoices attached to the factual investigation report were fraudulent.
The applicant submitted that the name recorded on the invoices was not his name. The handwriting was not the applicant’s own. The ABN number quoted on the invoices did not belong to the applicant. The applicant was unable to read or write in English.
The applicant identified other discrepancies between his evidence and that of Mr Sobeih. Mr Sobeih’s statement that he never attended any doctors’ consultations with the applicant was contradicted by the clinical entry recorded by Dr Talab on 11 September 2019.
The applicant submitted that the timesheet would not be accepted for the reasons given by the applicant. Mr Sobeih had made a number of unverifiable remarks which had been contradicted by the applicant’s evidence.
The applicant noted that Mr Sobeih had not given evidence about the issues described above and an inference could be drawn that Mr Sobeih’s evidence would not assist the respondent’s case.
The applicant referred to the authorities in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3)[1] and Hollis v Vabu Pty Ltd[2]. The applicant did not employ or engage anyone else to carry out work. The applicant could not delegate his tasks. The applicant did not promote his services as a business to the public. The applicant did not have any tangible assets utilised to support his duties and equipment had been provided by the respondent. The applicant denied using an ABN in connection with the performance of his work.
[1] [2011] FCA 366.
[2] (2001) 207 CLR 21.
There was no evidence that the applicant was working for any business other than the respondent. The applicant was not generating any income from any concurrent employment. There is no evidence of the applicant bore any risks associated with work he was performing. The respondent directed the manner in which the applicant carried out his work. An inference could be drawn that the work represented the activity of the respondent. The applicant was required to personally perform his duties. The applicant was not remunerated for an outcome or result, but his time. The respondent provided the applicant with his tools and equipment.
Although there was no evidence of income tax being withheld or leave being afforded, the entire relationship between the parties needed to be considered.
The applicant submitted that he was an employee of the respondent.
In the alternative, the applicant submitted that he should be found to be a deemed worker is defined in cl 2, Schedule 1 of the 1998 Act.
The applicant was not carrying on a business when he was working for the respondent. The work the applicant performed was not incidental to a trade or business regularly carried on in his own name or under a business name. The applicant did not sublet the contract or employ any worker.
The applicant noted issues concerning the evidence from Dr Talab, including Dr Talab speaking about the applicant in English with Mr Sobeih and the applicant being cleared to work despite complaints of sharp pain in his lower back.
The applicant submitted that his physical injuries had not resolved at any point and the applicant continued to obtain treatments with Dr Alseneid.
The applicant was forthcoming about his pre-existing lumbar spine issues but had not previously been prevented from working.
Similarly, the applicant acknowledged his pre-existing psychological issues. These symptoms had not prevented the applicant from working and he did so for a number of years without restriction.
The applicant gave evidence that his mental health deteriorated following the workplace injury. The applicant’s evidence was supported by the evidence of Mr Dhaher and the clinical records of Gilgamesh Medical Centre. The clinical records showed that the applicant’s physical and psychological symptoms continued and at no point resolved.
The applicant relied upon the reports of Dr Porteous who was cognisant of the applicant’s pre-injury lumbar spine issues.. Dr Porteous responded to Dr Pillemer’s assertion that any aggravation of the lumbar spine had settled.
The applicant also relied on the opinion of Dr Chow, who noted that prior to the injury, the applicant had been working full-time as a formwork carpenter for a number of years. The applicant had difficulty re-engaging with work following the injury due to his pain and psychological difficulties. Dr Chow opined that the applicant’s underlying psychiatric condition had been aggravated.
The applicant submitted that the opinion of Dr Porteous ought to be accepted and preferred over Dr Pillemer. Dr Porteous’s opinion was consistent with the lay and treating evidence and he had provided cogent reasons for his opinion. Dr Pillemer’s opinion regarding resolution of the aggravation was inconsistent with the other evidence. Dr Porteous’ opinion was consistent with Dr Chow’s opinion that there was a psychological component to the applicant’s incapacity.
The applicant submitted that there was no need for the applicant to establish that the accepted physical injury was the only, main or substantial, cause of the applicant’spsychological condition.
The applicant had not returned to work since the injury, apart from an attempt to work with the respondent, which was not successful. The applicant relied on Dr Alseneid’s certificate of capacity and submitted that the Commission should find the applicant had been totally incapacitated in respect of the period of weekly compensation claimed.
With regard to PIAWE, the applicant submitted that he was paid $1,600 to $1,800 per week by the respondent. The applicant disputed the respondent’s evidence with regard to his hours.
Documents from Mr Doali indicated that the applicant worked for five weeks from 1 July 2019 to 6 August 2019 with AZZ Form Pty Ltd earning $6,964 or $1,392 net per week. The applicant said this was consistent with $1,846 gross per week.
The applicant submitted that the respondent’s wages schedule ought not be accepted as no attempt had been made to explain the PIAWE figure of $625.

Respondent’s submissions

The respondent agreed with the applicant’s submissions as to the applicable principles for determining whether the applicant was an employee or an independent contractor. The applicant’s submissions referred largely to an absence of evidence in relation to the indicia of employment rather than identifying the evidence that supported his allegation that he was employed by the respondent.

The respondent submitted that the misspelling of the applicant’s name in the tax invoices could be explained by the applicant’s lack of English proficiency. The evidence from Mr Doali showed that the applicant had an ABN at the time of the alleged injury and operated as an independent contractor under an ABN in the past. No evidence had been provided by the applicant’s cousin who had been identified as a subcontractor Mr Sobeih’s evidence. An inference could be drawn that such evidence would not have assisted the applicant’s case.
The respondent conceded that if the applicant’s evidence that he did not employ anyone else to perform work or contract with anyone else to perform work was accepted, it would be open to find that the applicant was a “deemed worker”.
The respondent submitted that there was no evidence to support a primary psychological injury on 9 September 2019. The applicant provided limited evidence about his psychological condition. The only finding open on the applicant’s evidence was that the applicant sustained a secondary psychological condition.
The respondent submitted that any injury sustained to the applicant’s lumbar spine on 9 September 2019 was at best a temporary aggravation of a pre-existing and long-standing degenerative condition in the applicant’s lumbar spine which had resolved.
The respondent submitted that the applicant also had a significant history of a chronic depressive condition. The evidence was insufficient to satisfy the Commission that the applicant had suffered any aggravation of that condition.
The respondent submitted that the histories provided to the doctors in relation to the applicant’s pre-existing back condition had varied. Dr Porteous recorded that the condition was “generally” manageable. That suggested that at other times the condition was not manageable. Dr Chow took a history of occasional back discomfort.
On 11 September 2019, Dr Talab recorded that the applicant had no pain concerns and certified the applicant as fit for pre-injury duties. The applicant’s evidence about the level of his back pain was inconsistent and cast doubt on the credibility of his evidence.
The respondent submitted that there was an inconsistency in the applicant’s assertion that he would not allow a physiotherapist to treat him on 11 September 2019 because his back was too painful to touch. The clinical records refer to the applicant swearing and refusing treatment, saying they were trying to make money out of him. That entry was said to be inconsistent with the applicant’s account.
Following Dr Talab’s certification that the applicant was fit to return to pre-injury duties, the applicant did not attend a medical practitioner until 26 October 2019. There was no evidence of the applicant seeking or receiving medical treatment for the next six weeks despite his allegation that he was experiencing a severe level of pain. The respondent submitted that the Commission would not accept the applicant as a truthful witness on the basis of this evidence.
The respondent further submitted that the applicant’s claim of worsening back pain was inconsistent with the evidence that he returned to work on 12 and 13 September 2019. The applicant claimed that he told Mr Sobeih that he could not work and needed to seek medical treatment. In contrast, Mr Sobeih gave evidence that the applicant did not show any obvious sign of physical restriction when he returned to work on 12 and 13 September 2019. He then told the applicant that there was no further work available on the site. The respondent submitted that the applicant’s version of events was inconsistent with his failure to seek further medical treatment for the next six weeks.
The respondent’s submitted that the failure to seek treatment for a period of six weeks raised significant doubt about the accuracy and veracity of the applicant’s evidence as to the extent of the injury to his lumbar spine. That submission was supported by the observations of Dr Pillemer. Dr Pillemer’s opinion did not support the applicant’s case that he had an ongoing incapacity caused by the injury on 9 September 2019.
The respondent noted that the applicant relied on Dr Porteous who provided an opinion that it was plausible that the nature of the applicant’s work, being frequently heavy, was causative of his back pain. The respondent submitted that this was not an opinion that the applicant’s back pain was caused by the incident described on 9 September 2019. Dr Porteous’ report was inconsistent in so far as he later referred to the ongoing pain being the result of the accident.
Dr Porteous gave the opinion that the applicant’s reported neurological symptoms in his legs were referred from the lumbar spine. That opinion was at odds with the reported results of the MRI scan, which identified no nerve root impingement. No reasoned explanation for Dr Porteous’ opinion had been provided and the respondent said it should be given little weight.
The respondent relied on Dr Pillemer’s reports. Dr Pillemer reported that the applicant complained of constant pain in the lower back. That was not consistent with the clinical records of Dr Alseneid. The respondent submitted that the history provided by the applicant was strongly suggestive of the applicant painting a picture of his disabilities to support his claim rather than giving a truthful and accurate account of his history and symptoms. The examination by Dr Pillemer, revealed a number of significant inconsistencies in the applicant’s presentation.
The respondent submitted that Dr Pillemer was being generous to the applicant in concluding that the applicant presented with a very significant “functional component” to his condition. An alternative explanation was that the applicant was not being truthful about the degree of his disability. Dr Pillemer concluded that any aggravation of the applicant’s underlying degenerative condition at his lumbar spine would have settled and any ongoing physical incapacity was due to the underlying degenerative process.
The applicant’s complaints of constant lower back pain were contradicted by the contemporaneous records of Dr Alseneid. In his first consultation on 26 October 2019, the applicant did not make any complaints of back pain. Although there were records referring to back pain subsequently, the doctor recorded entries describing the applicant as “fully mobile, independent and active”.
The respondent noted that the applicant had not relied on any report from Dr Alseneid about the cause of the applicant’s back pain. The respondent submitted that it was open to the Commission to infer that a report from Dr Alseneid would not assist the applicant. The respondent submitted that the clinical records ought to be viewed in the context of Dr Pillemer and Dr Porteous’ opinions that the principal cause of the applicant’s apparent incapacity for work was psychological.
The respondent noted that in a clinical record on 7 December 2019 a distinction was drawn between chronic neck and back pain and back injury. The respondent submitted that this strongly suggested that the applicant reported that he had long-standing back pain over and above the effects of the injury on 9 September 2019. A history of chronic back pain was also referred to by Dr Pillemer. Those references cast doubt over the applicant’s claims that his back pain prior to 9 September 2019 was relatively innocuous and did not cause him any incapacity.
The respondent submitted that the Commission would take into account that the applicant had not put into evidence any report or records prior to 9 September 2019 to support his assertion that he did not suffer from debilitating back pain. In the absence of records corroborating the applicant’s evidence, the applicant’s claims about the level of his pre-injury back pain carried little weight. The weight to be given to the applicant’s evidence would be further reduced by the inconsistencies in his history and presentation to Dr Pillemer. The evidence suggested that the applicant had significant lower back disability prior to 9 September 2019.
The respondent submitted that the medical evidence was not consistent with the applicant’s claim to have suffered a significant ongoing aggravation of the degenerative condition at his lumbar spine. At best, the evidence strongly supported a finding that the applicant suffered only a very brief aggravation of the condition. The respondent submitted that any limitation in the applicant’s capacity to work due to injury would have been limited to a matter of days or weeks at most.
The respondent noted that the clinical records identified other non-compensable conditions that would presumably have affected the applicant’s work capacity including neck pain and headaches and weakness of both arms. No claim was made for injury to the neck or arms.
The respondent submitted that Dr Porteous’ further opinion should be given little weight in the absence of reasoned analysis to support his assertions.
The respondent submitted that Dr Porteous’ opinion was based on an incorrect history that the applicant never reported pain in the injured areas prior to the accident. Dr Porteous did not account for Dr Talab’s record that the applicant had no pain/concern when examined on 11 September 2019 or the failure to seek medical treatment for the next six weeks.
With regard to the applicant’s alleged psychological incapacity, the respondent noted that the applicant described the injury as having “destroyed” his life, suggesting a significant adverse impact on his psychological state. Dr Chow concluded that it was likely that the applicant’s physical condition had exacerbated his underlying depressive condition.
The respondent submitted that Dr Chow did not have any information or records about the applicant’s pre-existing psychiatric condition other than the brief history provided to him by the applicant.
The applicant’s account as to the effect of the injury on 9 September 2019 on his mental health was contradicted by the reports of Dr Seth. Dr Seth recorded issues relating to past trauma in Iraq, uncertain migration status, inability to bring his family to Australia, feelings of anger and irritability at his situation and lack of self-confidence.
Dr Alseneid’s clinical note on 26 October 2019 referred to the applicant having stopped his previously prescribed Cymbalta. The cessation of the previously prescribed antidepressant medication might account for the significant exacerbation of psychiatric symptoms around that time.
The respondent noted that the applicant bore the onus of proving that his psychiatric condition was caused by the alleged workplace injury. The applicant had made a forensic decision not to lead any evidence of his pre-September 2019 psychiatric history. Dr Chow’s opinion was based on a history that was in question in light of the matters recorded by Dr Seth. The report of Dr Seth in November 2019 was inconsistent with the applicant’s claim that the effects of the workplace injury destroyed his life and this undermined the opinion of Dr Chow.
The respondent submitted that the factual assumptions relied on by Dr Chow did not meet the requirement of a fair climate in light of the insufficient history of the applicant’s prior psychiatric condition and inconsistencies between the reported history and the applicant’s presentation to Dr Seth.
The respondent submitted that the Commission should find no incapacity for work as a result of the injury on 9 September 2019 other than a matter of a few days off work.
If the Commission were satisfied that the applicant suffered a longer period of incapacity, the opinion of Dr Pillemer supported finding that the aggravation of the lumbar spine condition had resolved by August 2020. The respondent noted that Dr Pillemer was an expert qualified by the applicant. Dr Porteous’s opinion also suggested that any incapacity for work at the time of his examination was psychologically based.
The applicant’s reliance on Dr Chow could not be sustained. Dr Seth was in a far better position to assess the applicant. Dr Seth’s evidence strongly supported the conclusion that the applicant’s psychiatric condition was unrelated to the workplace injury.
In addition, the medical evidence had not delineated between the applicant’s compensable and non-compensable physical limitations in addressing incapacity.
With regard to PIAWE, the applicant had provided no evidence apart from his bare assertion as to his weekly earnings. The respondent submitted that the relevant period for the calculation of PIAWE was the period of continuous employment with the respondent.
The respondent relied on its wages schedule, which was based on the tax invoices submitted by the applicant.
The applicant’s submissions were based on his recollections of the hours he worked. No evidence had been provided to support the applicant’s claim, for example from his cousin. There was no evidence from the applicant about what he did with the money he was paid in cash. No evidence had been put forward of deposits or spending.
In the absence of evidence corroborating the applicant’s claimed PIAWE, the respondent’s evidence should be accepted.
The respondent submitted that the applicant’s entitlement to medical expenses was limited to the period until any aggravation of the applicant’s underlying degenerative condition had ceased.

Applicant’s submissions in reply

The applicant submitted that the respondent’s submissions with regard to the indicia of employment were misconceived. Several of the indicia had to be addressed in the negative. The applicant submitted that he ought to have been cross-examined if the respondent sought to allege his evidence was untruthful.
The applicant denied that he had operated as an independent contractor under an ABN in the past.
The applicant’s evidence that he was able to manage his back pain previously with painkillers was unchallenged. The respondent had adduced no evidence to disprove this.
The respondent had not alleged any novus actus interveniens or grappled with the evidence of Mr Dhaher.
In his first consultation on 26 October 2019, Dr Alseneid noted that the applicant had been working until injured at work and his cousins were looking after him. The applicant submitted that this demonstrated an injury that was sustained at work, the effects of which had not ceased.
On 6 November 2019, the applicant was recorded to present with the same symptoms and it was noted that the applicant had been on tramadol for his back injury.
Although Dr Alseneid did not explicitly record back pain symptoms in his initial consultation, it was not open to find on that evidence that the applicant did not complain of back pain or symptoms.
Reading Dr Porteous’s evidence as a whole, the doctor found the applicant’s lumbar spine injury had not ceased. Reasons for his opinion had been provided.
The applicant submitted that the respondent bore the evidentiary onus in relation to the matters upon which it relied.
The applicant submitted that the records of Dr Seth did not detract from Dr Chow’s opinion but rather supported them.

FINDINGS AND REASONS

Worker/deemed worker

Section 9 of the 1987 Act provides that a “worker” who has received an “injury” shall receive compensation from the worker’s employer.
Section 4 of the 1998 Act defines a worker:
“worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing)”.
Section 5 of the 1998 Act gives effect to the provisions of Schedule 1. Clause 2 of that Schedule provides:
“(1) Where a contract:
(a) to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor’s own name, or under a business or firm name), or
(b) [Repealed]
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this act, taken to be a worker employed by the person who made the contract with the contractor.”
The issue of worker/deemed worker has to a large extent fallen away given the respondent’s concession in written submissions that the applicant would satisfy the requirements of cl 2 of Schedule 1 to the 1998 Act provided the Commission accepted the applicant’s evidence that he was not carrying on work incidental to a trade or business and neither sublet the contract nor employed any other worker.
There is nothing in the evidence before me to suggest that the applicant was, at the Granville worksite, performing work incidental to a trade or business regularly carried on by the applicant under his own name or under a business or firm name.
Nor is there any suggestion that the applicant sublet any contract with the respondent or employed any workers. I am satisfied on all of the evidence that the applicant satisfied the definition of a “deemed worker” at the time of the injurious event on 9 September 2019 for the purposes of cl 2 of Schedule 1 of the 1998 Act.
To the extent that it might be required, I would not be satisfied that the applicant had entered into work under a contract of service with the respondent for the purposes of the definition of a ‘worker’ in s 4 of the 1998 Act.
In relation to this issue there are contradictory accounts of the arrangement between the applicant and respondent in the written evidence given by the applicant and Mr Sobeih. Amongst other things, their evidence differs in relation to:
(a)    whether the applicant was an employee or a subcontractor;
(b)    whether the applicant or the respondent supplied work materials including tools and personal protective equipment;
(c)    whether the applicant submitted tax invoices for payment, and
(d)    whether the applicant attempted to provide his bank account details, tax file number and superannuation details to Mr Sobeih.
The applicant has submitted that his evidence should be preferred to Mr Sobeih’s evidence and in particular submits that tax invoices and an attendance record provided by Mr Sobeih were fraudulent or misleading.
The applicant refers to discrepancies in the spelling of the applicant’s name and the ABN number identified in the tax invoices in support of this submission. Whilst the spelling of the applicant’s first name in the tax invoices appears different to the spelling of the applicant’s first name on his driver’s licence, it is a notable feature of the evidence before me that the English spelling of Arabic names is often recorded differently in different locations.
With regard to the ABN number featured on the tax invoices, an ABN Look Up search relied on by the respondent indicates that the ABN matches a person with the same first and last names and postcode as the applicant according to his driver’s licence.
In denying that the ABN belonged to him, the applicant relied on a screenshot of a partially visible search of ATO database by a tax agent in which it is suggested that the applicant’s date of birth and the ABN did not match. The evidentiary value of that search is uncertain insofar as it appears to only suggest that the ATO did not hold records such as income reports or declarations containing both the ABN and the applicant’s date of birth. Given the evidence indicating that the applicant had been paid by the respondent in cash and does not appear to have declared that income in his 2019/20 tax return, I am not satisfied that this is persuasive evidence that the ABN number appearing on the tax invoices did not belong to the applicant.
The applicant also refers to an inconsistency between Mr Sobeih’s evidence and the clinical records of Dr Talab on 11 September 2019 on the issue of whether Mr Sobeih attended that appointment. Whilst the clinical records do tend to suggest that the applicant’s evidence on this issue is preferable, I am not satisfied that the inconsistency renders the entirety of Mr Sobeih’s evidence unreliable.

There are some unusual features in the applicant’s own evidence. For example, the applicant’s precise recollection of the hours he worked in all weeks for the respondent as set out in his most recent statement is unusual given the absence of any documentary record of the hours worked on which the applicant relies and the passage of time.
The relative detail in the alleged verbal agreement described in the applicant’s 17 December 2021 statement is also somewhat unusual given the comparative informality of other aspects of the employment arrangement. There is no suggestion the applicant was paid sick leave or any other leave, that tax was deducted or superannuation paid. Nor does the applicant suggest that he pressed for those entitlements when they were not arranged.
There are also some inconsistencies between the applicant’s evidence and the statement prepared by the investigator on his behalf, particularly with regard to whether the applicant provided his own tools and protective equipment and previously used an ABN as a subcontractor. The applicant’s evidence does not address why that statement was not adopted or the inconsistencies. Given that the investigator’s statement was not, however, adopted, I have not given weight to this circumstance.
It is the applicant’s evidentiary onus to establish that he was a worker for the purposes of s 4 of the 1998 Act. Given the evidentiary inconsistencies described above and in the absence of any form of documentary corroboration of the applicant’s claims or other witness evidence, I am not satisfied that the applicant has demonstrated on the balance of probabilities that he had entered into work under a contract of service with the respondent.
I do, however, accept that there was an oral contract or agreement between the applicant and the respondent for the applicant to perform work on the Granville site and that the value of that work exceeded $10 in value. I am satisfied that the work was not incidental to a trade or business regularly carried on by the applicant. I am satisfied that the applicant neither sublet the contract or employed any worker.
As a result, the applicant is taken to be a “worker” employed by the respondent for the purposes of the 1998 Act.

Injury

The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
There is little medical dispute between the parties that the applicant sustained an injury to his lumbar spine which would satisfy the definition in s 4(b)(ii) of the 1987 Act. The medical evidence relied on by both parties, consistently indicates the existence of a pre-existing degenerative condition, if not, a previous injury to the lumbar spine. The extent of that pre-existing condition is the subject of some controversy but its presence does not preclude a finding for the purposes of s 4(b)(ii) that there was an aggravation, acceleration, exacerbation or deterioration of the disease to which employment with the respondent was the main contributing factor.
That conclusion is consistent with the evidence of all the witnesses before me. It receives support in the contemporaneous clinical records and certificates issued by Dr Talab. The occurrence of an injury to the applicant’s lumbar spine in the circumstances described by the applicant is accepted on the medicolegal evidence of both Dr Pillemer and Dr Porteous.
I am satisfied, therefore, that the applicant sustained an injury to his lumbar spine pursuant to s 4(b)(ii) of the 1987 Act on 9 September 2019.

Secondary psychological condition

There is also no medical dispute between the parties that the applicant has a psychological condition. The causal relationship between the psychological condition and the injury is, however, in dispute.
In written submissions, the applicant does not suggest that he has sustained a primary psychological condition arising out of or in the course of employment with the respondent. Rather, he maintains that he sustained a secondary psychological condition as a result of the injury.
The test for establishing a consequential condition can be distinguished from that required to establish an “injury”. Insofar as a consequential condition is relied upon, the comments of Deputy President Roche in Moon v Conmah[3] at [45]-[46] are relevant:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
[3] [2009] NSWWCCPD 134.
In determining whether a consequential condition exists, a commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[4], where Kirby P said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[4] (1994) 10 NSWCCR 796 at [810].
His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
The applicant’s own evidence confirms that he had a pre-existing condition for which he had been prescribed antidepressant medication since around the time of his arrival in Australia in 2012. It is undoubted that the applicant had a history of significant psychological trauma and has encountered a series of stressful personal circumstances in his life, giving rise to psychological symptoms.
It is well established that a condition can have multiple causes. In Murphy v Allity Management Services Pty Ltd Roche DP stated[5]:
“…That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[5] [2015] NSWWCCPD 49 at [57].
In Taxis Combined Services (Victoria) Pty Ltd v Schokman[6] Roche DP commented:
“The Arbitrator was correct to observe that the presence of a pre-existing condition did not mean that the need for treatment did not “result from” the injury in the sense discussed in Kooragang. The appellant’s submissions have ignored the fundamental principle that employers must take workers as they find them (Spigelman CJ (Bryson AJA agreeing) in State Transit Authority (NSW) v Chemler[2007] NSWCA 249 at [40]; [2007] NSWCA 249; 5 DDCR 286).
Thus, the fact that Mr Schokman had pre-existing periodontitis and poor oral hygiene, which may have been factors in him developing peri-implantitis, does not mean that the proposed treatment of the peri-implantitis is not as a result of the injury.
…
It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). More importantly, the injury does not have to be taking medication for a period of time the only, or even a substantial, cause of the need for the proposed treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act. As the section states, and the Arbitrator acknowledged (at [55] and other places), Mr Schokman only has to establish that the proposed treatment is reasonably necessary “as a result of” the injury. On the evidence called from Dr Roessler, he easily met that test.”
[6] [2014] NSWWCCPD 18 at [54].
Other than the applicant’s own account as set out in his written evidence and in the histories provided to the various doctors involved in his case, there is little evidence as to the nature of the applicant’s previous psychological condition or the treatment he was receiving prior to the work injury. It is unclear, for example, whether the applicant was consistently taking medication or, as suggested by Dr Alseneid’s clinical records had ceased for a period of time.
The evidence does not, however, indicate that the applicant’s psychological condition was previously incapacitating. The applicant’s evidence and the financial records before me indicate that the applicant had been working prior to the commencement of employment with the respondent and maintained employment with the respondent for a period of around five weeks until the event on 9 September 2019.
I am also satisfied on the evidence before me that there was a deterioration in the applicant’s psychological symptoms around the time the applicant first consulted Dr Alseneid around six weeks after the injurious event. Consultations recorded with Dr Alseneid in the latter part of 2019 suggest that the applicant had been doing very well for some time. The applicant was then referred to Dr Seth and there is suggestion that the applicant was seen by an acute care mental health team.
The contributing factors to the deterioration can be identified from the records of Dr Alseneid, the reports of Dr Seth and the lay evidence.
It is true that a number of stressors other than the applicant’s back injury are identified in the medical evidence. Dr Alseneid’s records referred to the applicant not seeing his family for nine years but also to the applicant working until he was injured at work and his cousins looking after him. On 6 November 2019, Dr Alseneid referred to the applicant not sleeping for four days and being on Tramadol for his back injury, which had run out. The applicant reported that he was in severe pain. On 4 December 2019, Dr Alseneid noted that the applicant was angry with insurance for his back injury and was not being paid. The applicant had no money to support his life.
The reports of Dr Seth give prominence to circumstances other than the applicant’s back injury in identifying the causes and perpetuating factors to the applicant’s psychological condition. Dr Seth did note, however, that the applicant was not working due to chronic back pain. In her 14 October 2020 report, Dr Seth noted that the applicant was feeling tired in the day which he attributed to his back pain.
The lay evidence of the applicant and Mr Dhaher describe a deterioration in the applicant’s psychological symptoms connected with the lumbar injury. The applicant said his psychological condition had deteriorated since the workplace accident, and his mood had been down due to his ongoing back pain. Mr Dhaher, who had resided with the applicant since around 2012 gave evidence that since the accident on 9 September 2019 the applicant had not been the same person and was always complaining about being in pain. The applicant was always in a low mood and depressed, was easily agitated and had outbursts of anger.
The only medico-legal evidence before me by an expert qualified to give an opinion on the applicant psychological condition is set out in the report of Dr Chow. Consistently with the applicant’s evidence, Dr Chow gave the opinion that it was likely that the physical injury had exacerbated the applicant’s underlying psychiatric condition. That continued to affect the applicant’s perception of his pain levels and his ability to re-engage work.
Dr Chow’s opinion has been criticised by the respondent on the grounds that he did not have a full history of the applicant’s previous psychological condition and treatment. It is also not apparent that Dr Chow was provided with the reports of Dr Seth which give particular prominence to factors unrelated to the applicant’s work injury. I am, however, satisfied that Dr Chow was aware of the applicant’s pre-existing history of trauma and psychological symptoms for which he had been on medication. Whilst Dr Chow’s history could have been more complete, I am satisfied that it is sufficiently supported by the other evidence before me as to provide a proper foundation for the acceptance of his opinion.
I find that the deterioration of the applicant’s psychological state in late 2019 was multifactorial. The contributing factors included the pre-existing condition, possible cessation of antidepressant medication and circumstances related to the applicant’s visa status and prolonged separation from his family. I am, however, satisfied that the work injury, including the symptoms of pain and its impact on the applicant’s ability to work and support himself financially, made a material contribution to the deterioration, even if it was not the sole, main or even a significant contributing factor.
I am satisfied that the applicant has sustained a secondary psychological condition as a result of the injury to his lumbar spine on 9 September 2019.

Incapacity

Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
There is a material dispute between the parties as to the ongoing effects of the applicant’s injury and secondary psychological condition on his capacity for work.
The applicant claims that he has been totally incapacitated for work since the date of injury notwithstanding some attempts at a return to work on 12 and 13 September 2019.
The respondent, however, relies on evidence of a resolution of the lumbar spine injury as set out in the records of Dr Talab and the reports of Dr Pillemer to say that the effects of the lumbar injury were temporary and had resolved such that the applicant was only incapacitated for work for a brief period or at best up until the time of Dr Pillemer’s August 2020 reports.
Dr Talab’s records and certificates of capacity indicate that the applicant had returned to a capacity to engage in his pre-injury duties by 11 September 2019. There is evidence that the applicant in fact returned to work for two days on 12 and 13 September 2019 set out in statements of both the applicant and Mr Sobeih. Mr Sobeih has given evidence that the applicant did not appear to be incapacitated when he attended for work on those days. Mr Sobeih said the applicant had called him looking for work after the injury but he had declined to offer the applicant more work, not due to his work injury but due to other issues around his reliability. The respondent also relies on the absence of any evidence of medical treatment for the applicant’s lumbar spine between 11 September 2019 and 26 October 2019.
Weighing against the respondent’s evidence, the applicant has said he was experiencing significant pain impacting on his ability to perform his work normally when he returned to work on 12 and 13 September 2019. The applicant says he was unable to continue to work due to his injury.
The applicant notes that the restrictions set out in the certificate of capacity issued by Dr Talab on 9 September 2019 were significant. The applicant says the certification issued on 11 September 2019 and the records made by Dr Talab on that date were inconsistent with what he told the doctor. The applicant claims that Mr Sobeih acted as his interpreter and the doctor and Mr Sobeih had conversations in English which he was not able to understand. As indicated above, the clinical records of Dr Talab are consistent with Mr Sobeih having attended that consultation.
The applicant has not claimed to have obtained medical treatment in the six week period that followed. The applicant said that in that period, he was taking painkillers to manage his pain and resting. The applicant said he barely left home. The applicant’s evidence in this regard is consistent with the clinical record made by Dr Alseneid on 6 November 2019. In that record, Dr Alseneid indicated that the applicant had been prescribed tramadol for a back injury but had run out and was in severe pain. Although Dr Alseneid did not record lumbar symptoms or an examination of the lumbar spine when he first saw the applicant, he did note that the applicant had been injured at work.
The treating medical evidence from that time onwards makes consistent reference to the applicant experiencing back pain. Those symptoms prompted referrals for a CT scan in December 2019 and an MRI in June 2020. Although at times the applicant was reported to be doing well, fully mobile, independent and active, at other times Dr Alseneid recorded that there was severe or increasing back pain which was not being adequately controlled by the applicant’s medication. In the most recent certificate of capacity given by Dr Alseneid, the applicant was certified as having no current work capacity between 11 July 2020 on 10 April 2022 as a result of the injury.

The first medico-legal report in evidence before me was prepared by Dr Pillemer in August 2020. Dr Pillemer was given a history of the applicant developing severe pain in the whole of his spine since the injury.
Dr Pillemer ultimately formed the view that the applicant’s work injury had settled predominantly due to inconsistencies or abnormal illness behaviour noted in the applicant’s presentation.
Dr Pillemer also noted the mild degenerative changes observed on the CT scan carried out on 9 December 2019 and said he was unable to explain the applicant’s symptoms and clinical findings on an orthopaedic basis.
Significantly, Dr Pillemer commented on the presence of additional mental health issues. Whilst Dr Pillemer did not consider that the applicant was incapacitated for work from an orthopaedic perspective, his reports do not address the effects of the applicant’s psychological condition on his capacity for work.
The medico-legal report from Dr Chow does address the impact of the applicant’s psychological condition. Dr Chow considered that the psychiatric condition was affecting the applicant’s perception of his pain levels. At the time of his report of 17 March 2021, Dr Chow formed the opinion that the applicant remained totally unfit for work.
Dr Porteous’ opinions are consistent with Dr Chow’s. Dr Porteous expressed the view that the applicant had lumbar back pain and marked disability which were compounded by what appeared to be a substantial psychological condition. Dr Porteous considered that if the applicant did not have his apparently severe psychological condition it was likely he could better engage in rehabilitation and would have been able to go back to some form of work. The psychological condition, related psychomotor retardation and withdrawal, appeared to be compounding and prolonging the high levels of lumbar back pain and disability reported.
Dr Porteous’ opinion has been criticised by the respondent due to his statements that the applicant had not ever reported pain in the injured areas prior to the subject accident. Elsewhere, however, Dr Porteous did take a history of occasional lumbar back pain of mild nature with heavy work and bending. The applicant’s back pain was generally manageable and he did not have any treatment for it.
The lack of medical evidence pre-dating the work injury in these proceedings is unfortunate, particularly given the references to a possible previous work injury and previous lumbar symptoms. I am, however, satisfied that a history of previous symptoms was disclosed. I am further satisfied that, for a significant period prior to the work injury the applicant had capacity to engage in employment, notwithstanding his pre-existing conditions.
Following the work injury, I am satisfied that the applicant was incapacitated for work.
Weighing all of the evidence, I am further satisfied that the applicant remained totally incapacitated for work as a result of his lumbar injury and secondary psychological condition. Although other factors have contributed to the applicant’s incapacity, including his pre-existing lumbar and psychological conditions and other physical conditions including apparent neck pain and headaches, I am satisfied that the compensable work injury has materially contributed to that incapacity.
As a result of these findings, I am satisfied that the applicant is entitled to weekly compensation pursuant to ss 36 and 37 of the 1987 Act on the basis of having no current work capacity.

Pre-injury average weekly earnings

The remaining point of controversy between the parties lies in the calculation of PIAWE. The applicant relies on his statement evidence that he received between $1,600 and $1,800 in cash per week, based on an hourly rate of between $43 and $45 and an average working week of 43 hours.
The applicant’s evidence is unsupported by any documentary evidence whatsoever. There is no evidence that income received from the respondent was declared in his 2019/20 tax return. No bank account statements, envelopes, or other evidence, attesting to the applicant’s income during the period of his employment with the respondent has been provided.
The applicant asserts that his evidence as to his rate of pay is consistent with the tax records of his previous employment. A PAYG summary for the applicant’s previous employment with AZZ Form Pty Ltd shows gross payments of $6,062 from 1 July 2019. The applicant asserts that he worked for AZZ Form Pty Ltd for five weeks until 6 August 2019. This suggests a gross weekly income of around $1,212 rather than $1,846 as suggested in the applicant’s submissions.
In the applicant’s case, s 44C(1) of the 1987 Act defines PIAWE as the sum of:
“(a) the average of the worker’s ordinary earnings during the relevant period (excluding any week during which the worker did not actually work and was not on paid leave) expressed as a weekly sum, and
(b) any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable).”
In the applicant’s case the “relevant period” is defined in s 44D(1)(b) as:
“(b) in the case of a worker who has been continuously employed by the same employer for less than 52 weeks immediately before the injury, the period of continuous employment by that employer.”
It is only the applicant’s earnings in the period of employment with the respondent which are relevant for present purposes.
The only documentary evidence of the applicant’s earnings during the period of his employment is set out in the attachments to Mr Sobeih’s statement. Those documents suggest the applicant was paid an hourly rate of $25 for a total of 127 hours of work between 14 August 2019 and 13 September 2019.
As indicated above, the applicant has denied that the invoices were provided by him. The applicant says the invoices and attendance sheet are fraudulent and misleading.
For the reasons set earlier in this statement of reasons, the applicant’s evidence does not persuade me that Mr Sobeih’s documents are unreliable. The applicant’s own evidence is in part problematic or inconsistent, and is unsupported by any corroborative evidence.
I am not satisfied on the balance of probabilities that the applicant’s claimed PIAWE figure is correct.
The respondent’s wages schedule is consistent with the documentary evidence in asserting a PIAWE of $625. After weighing the evidence, I accept the respondent’s figure.
The applicant will be entitled to an award of weekly compensation from 10 September 2019 pursuant to ss 36(1)(a) and 37(1)(a) based on a PIAWE rate of $625, as periodically indexed.
The applicant has not specifically claimed or provided evidence to support a claim for weekly compensation pursuant to s 38 of the 1987 Act. I decline to make any order for ongoing weekly compensation in accordance with s 38 of the 1987 Act.

Medical and related treatment expenses

It follows from the findings above that the applicant will be entitled to compensation in accordance with s 60 of the 1987 Act in respect of his lumbar injury and secondary psychological condition upon production of accounts, receipts and/or Medicare notice of charge.

[2022] NSWPIC 334

28 June 2022