Al Khaldy v ES Formwork Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Al Khaldy v ES Formwork Pty Ltd [2024] NSWPIC 557
APPLICANT:	Mohammad Al Khaldy
RESPONDENT:	ES Formwork Pty Ltd
MEMBER:	Anthony Scarcella
DATE OF DECISION:	2 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); section 4(a); injury to the cervical spine, bilateral shoulders, thoracic spine, lumbar spine and right knee disputed; entitlement to weekly benefits disputed; section 60 expenses disputed; PIAWE disputed; contemporaneous evidence; histories in medical records; clause 9 of Schedule 3 to the 1987 Act current work capacity and no current work capacity; section 32A suitable employment; clause 2 of Schedule 3 to the 1987 Act calculation of PIAWE; Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes, Onassis and Calogeropoulos v Vergottis, Davis v Council of the City of Wagga Wagga, King v Collins, Mason v Demasi, Department of Aging, Disability and Home Care v Findlay and Wollongong Nursing Home Pty Ltd v Dewar considered and applied; Held – the applicant suffered injuries to the cervical spine and the lumbar spine arising out of or in the course of his employment with the respondent on 15 December 2022 within the meaning of sections 4(a) and 9A; the applicant suffered a consequential psychological condition as a result of the injuries he sustained in the course of his employment with the respondent on 15 December 2022; the applicant has had no current work capacity from 15 December 2022 within the meaning of clause 9 of Schedule 3 to the 1987 Act; the respondent is to pay the applicant weekly compensation in respect of the injuries arising out of or in the course of his employment with the respondent on 15 December 2022; the respondent is to pay the applicant’s reasonably necessary medical and related expenses as a result of injury on 15 December 2022 under section 60.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injuries to the cervical spine and the lumbar spine arising out of or in the course of his employment with the respondent on 15 December 2022 within the meaning of ss 4(a) and 9A of the Workers Compensation Act 1987. 2. The applicant suffered a consequential psychological condition as a result of the injuries he sustained in the course of his employment with the respondent on 15 December 2022. 3. The applicant has had no current work capacity from 15 December 2022 within the meaning of cl 9 of Schedule 3 in the Workers Compensation Act 1987. The Commission orders that 4. The respondent is to pay the applicant weekly compensation in respect of the injuries sustained on 15 December 2022 as follows: (a) $1,377.50 per week from 16 December 2022 to 16 March 2023 under s 36(1) of the Workers Compensation Act 1987; (b) $1,160 per week from 17 March 2023 under s 37(1) of the Workers Compensation Act 1987 until such payment is suspended, varied or terminated under the provisions of the Workers Compensation Act 1987; (c) the respondent is to make the appropriate indexation adjustments to the weekly compensation payments ordered above under s 82A of the Workers Compensation Act 1987 in accordance with the formula and review dates stipulated therein; (d) the respondent is to be given credit for any payments made, and (e) liberty to apply within 14 days in relation to the calculation of weekly benefits. 5. The respondent is to pay the applicant’s reasonably necessary medical and related expenses as a result of injury on 15 December 2022 under s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mr Mohammad Al Khaldy, is a 50-year-old man who was employed by the respondent, ES Formwork Pty Limited (ES Formwork), as a formworker.
On 15 December 2022, Mr Al Khaldy alleges that, at a worksite at Burwood, he was carrying three heavy timber bearers, each weighing 30kg. Whilst he was walking along a piece of wood, it became unstable and spun, causing him to fall to the concrete floor with the timber bearers falling on top of him. As a result, he injured his head, cervical spine, thoracic spine, lumbar spine, bilateral shoulders and suffered a consequential psychological condition.
On 5 May 2023, Mr Al Khaldy lodged a claim for benefits under the Workers Compensation Act 1987 (the 1987 Act).[1]
[1] Application to Resolve a Dispute at pages 55-62.
On 20 June 2023, Employers Mutual Limited (EML), acting as the agent of NSW Self Insurance Corporation (icare), accepted provisional liability for treatment.[2]
[2] Application to Resolve a Dispute at pages 92-95.
On 13 July 2023, EML issued a dispute notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying that Mr Al Khaldy was a worker within the meaning of s 4 of the 1998 Act or a deemed worker within the meaning of s 5 and cl 2 of Schedule 1 of the 1998 Act; denying an entitlement to weekly payments within the meaning of s 33 of the 1987 Act; and denying an entitlement to reasonably necessary medical and related treatment expenses as a result of injury within the meaning of ss 59 and 60 of the 1987 Act.[3]
[3] Reply at pages 9-12.
On 4 December 2023, Mr Al Khaldy through his lawyers, requested a review of the decision contained in EML’s dispute notice dated 13 July 2023 under s 287A of the 1998 Act.[4]
[4]Application to Resolve a Dispute at page 110.
Mr Al Khaldy, through his lawyers, lodged an Application to Resolve a Dispute (ARD) dated 23 April 2024 in the Workers Compensation Division of the Personal Injury Commission (Commission) claiming weekly benefits compensation from 15 December 2022 and ongoing under ss 36 and 37 of the 1987 Act and reasonably necessary medical and related treatment expenses under s 60 of the 1987 Act as a result of the injury sustained in the course of employment with ES Formwork on 22 December 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether Mr Al Khaldy suffered an injury to his head, cervical spine, thoracic spine, lumbar spine and bilateral shoulders on 15 December 2022 within the meaning of ss 4(a) and 9A of the 1987 Act;
(b) whether Mr Al Khaldy suffered a consequential psychological condition as a result of the alleged injuries on 15 December 2022;
(c) Mr Al Khaldy’s pre-injury average weekly earnings (PIAWE) and entitlement to weekly payments of compensation within the meaning of ss 32A, 33, 34, 36 and 37 of the 1987 Act arising from his alleged injuries between 15 December 2022 and ongoing, and
(d) Mr Al Khaldy’s entitlement to medical and related treatment expenses under s 60 of the 1987 Act.

Matters previously notified as disputed

The issues in dispute were notified in the dispute notices referred to above.

Matters not previously notified

No other issues were raised.

PROCEDURE BEFORE THE COMMISSION

The parties participated in a conciliation conference and arbitration hearing in person in the Commission’s Darlinghurst premises on 17 July 2024. Mr Bill Loukas of counsel appeared for Mr Al Khaldy, instructed by Mr James Saba, solicitor and Mr John Gaitanis of counsel appeared for ES Formwork, instructed by Ms Melonie Lehman, solicitor. Also present was Mr Haiman Hammo, Arabic speaking interpreter (NAATI card number: CPN5HK42M).
During the conciliation phase the parties agreed as follows:
(a)    ES Formwork does not maintain the dispute raised in the Reply in respect of ss 254 and 261 of the 1998 Act;
(b)    ES Formwork does not maintain the dispute raised in the Reply as to whether Mr Al Khaldy was a worker within the meaning of s 4 of the 1998 Act or a deemed worker within the meaning of s 5 and cl 2 of Schedule 1 of the 1998 Act;
(c)    ES Formwork is the relevant entity in this matter but the nature of the employment is disputed;
(d)    ES Formwork disputes the location (building/job site) of Mr Al Khaldy’s alleged injuries;
(e)    Mr Al Khaldy has not been paid any weekly compensation benefits, and
(f) if Mr Al Khaldy is successful, there be a general order in respect of s 60 of the 1987 Act.
During the conciliation phase an interlocutory issue arose, was discussed and could not be resolved. The issue related to the admission into evidence of poorly photographed series of certificates of capacity produced during the conciliation phase and forwarded to me and Mr Gaitanis by email. Mr Loukas made an application to admit those late documents into evidence. Mr Gaitanis objected to the admission of those documents into evidence.
The interlocutory issue was determined by me during the arbitration phase after hearing the oral submissions of the parties. I determined that the documents should not be admitted into evidence.
The oral submissions and my reasons for the determination in relation to the interlocutory issue were sound recorded and the sound recording is available to the parties.
I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD dated 23 April 2024 and attached documents;
(b)    Reply to ARD (Reply) dated 15 May 2024 and attached documents;
(c)    Application to Admit Late Documents (AALD) lodged by Mr Al Khaldy dated 14 June 2024 and attached documents, and
(d)    AALD lodged by ES Formwork dated 9 July 2024 and attached documents.

Oral evidence

Neither party sought leave to adduce oral evidence from or to cross-examine any witness.

Mr Al Khaldy’s evidence

In evidence there is a statement by Mr Al Khaldy dated 6 October 2023 taken by an investigator engaged by EML.[5]
[5] ARD at pages 37-47 and Reply at pages 16-26.
In evidence there is a statement by Mr Al Khaldy dated 19 April 2024 taken by his lawyers.[6]
[6] ARD at pages 1-9.
I will now refer to the relevant parts of those statements ignoring those matters that are no longer in dispute.
Mr Al Khaldy stated that he arrived in Australia in 2013 on a bridging visa. He cannot speak, read or write English. He only speaks Arabic. He completed high school to the equivalent of year nine in Kuwait.
Mr Al Khaldy stated that, since arriving in Australia, he had only worked in formwork for various companies on contract. As each job came to an end, he and other workers would stay connected and provide each other with the names of bosses so that they could reach out to them for any new jobs. Wherever he worked, he was paid cash in hand. He worked full-time hours for a period of about 10 days to 14 days and would then be told that he was no longer required. He would then job hop. He estimated that 90% of those he worked for told him that they could not keep him on board because he could not speak English and that no one could understand him.
Mr Al Khaldy stated that he was told about ES Formwork by Mr Alaa Alkaldani who worked for ES Formwork. He was told that they had some jobs going. The owner of ES Formwork was a man he knew as Hassan (Mr Orhan Mavruk). Most of his dealings were with Mr Mavruk. A number of times, he attended Mr Mavruk’s home to collect his wages in cash. Contrary to Mr Mavruk’s evidence, Mr Al Khaldy stated that Mr Mavruk refused to pay his wages into an account as requested. Mr Mavruk kept telling him to be patient because he had to fix the paper work.
Contrary to Mr Mavruk’s evidence, Mr Al Khaldy stated that he worked exclusively for Mr Mavruk of ES Formwork from May 2022. He worked at various building sites in the Sydney area. Mr Mavruk would either message him or telephone him advising which worksite he was to attend. In his statement to the investigator, Mr Al Khaldy stated that he drove his own car to the various worksites. In the statement to his lawyer, Mr Al Khaldy stated that was not always the case and that, sometimes, someone would come and pick him up in the morning and take him to a worksite and sometimes, he would drive and pick up other workers on the way.
Mr Al Khaldy stated that inductions did not always take place at worksites. At some worksites, Mr Mavruk would pull him away from the induction because he did not want others to know that he did not understand English if he were to be asked a question. In most situations, he would go to his car and then come back to work.
Mr Al Khaldy stated that he worked at all kinds of building sites including commercial buildings, houses, offices and apartment buildings. On-site, he would normally receive instructions from Mr Mavruk. If Mr Mavruk left the site, he would report to the site foreman who would point out what needed to be done. If he did not understand the instructions, the foreman would telephone Mr Mavruk, who would explain it to him.
Mr Al Khaldy described his duties with ES Formwork as follows:
“My duties would be: metal and timber framework, work on walls, putting metal mesh down. Sometimes setting up framework, lifting and moving materials and equipment from one place to another such as plywood and steel mesh. The work I did requires a lot of bending over and a lot of pressure on my back and legs. In terms of weight the materials could vary, sometimes 50/70/100kg, or lighter weights and it would depend on what we were carrying. The weight was open, no limitations as to how much I could carry. Hassan would tell us what we had to carry and we would carry this individually. If something was too heavy, there was nobody there and if they could hear you could not carry the load they would terminate you and not call you for work the next day.”[7]
[7] ARD at page 3 at [22].
Contrary to Mr Al Khaldy’s evidence, Mr Mavruk’s evidence was that Mr Al Khaldy was not required to lift or carry heavy materials or equipment.
Mr Al Khaldy stated that he was being paid in cash at a daily rate of $400. Contrary to Mr Mavruk’s evidence, Mr Al Khaldy stated that Mr Mavruk told him that if he wanted his wages to get paid into a bank account, it would be a lot less than $400 because he would have to pay the tax. Mr Al Khaldy told him that that was fine and that he consistently asked Mr Mavruk whether he had fixed up the tax so that he could start getting paid into his bank account. Mr Mavruk would tell him that it was being fixed up but it was never done.
Mr Al Khaldy stated that, since May 2022, he generally worked six days per week from Mondays to Saturdays for ES Formwork. Sometimes, due to weather conditions, he would be sent home and not work. On most days, he would commence at the worksite at about 6.00am or 7.00am and finish at 3.00pm. However, he did do a lot of overtime and on Saturdays, depending on the worksite, he would finish at 1.00pm or 2.00pm and get paid a full day’s wage. However, in his statement to the investigator, Mr Al Khaldy stated that on Saturdays they would be allowed to start at 12.00pm or sometimes, 1.00pm and receive a full day rate of pay.
Mr Al Khaldy stated that, prior to 15 December 2022, he had never suffered from any form of issues in his back. However, Dr Sabri Hasam, general practitioner, noted a past history of back and knee pain on 10 November 2019 in two referral letters dated 26 June 2023.[8] In his statement to the investigator, Mr Al Khaldy stated that Dr Hasam was his regular general practitioner. However, Dr Hasam’s clinical records in respect of Mr Al Khaldy are not in evidence.
[8] ARD at pages 58-59.
Mr Al Khaldy stated that about 20 days before 15 December 2022, that is, at about the end of November 2022, he was in so much agony with his back that he took a couple of days off work. Whilst he was off work, he took some painkillers, used Voltaren cream and used a belt for his back. This did not help much. As he had no choice, he returned to work. He did not tell Mr Mavruk that he had experienced back pain because he thought he would get fired. He told Mr Mavruk that he had some personal things to do. He still had back pain when he returned to work but he was able to work as usual, carrying and lifting materials. He told his young co-worker, Mr Alkaldani, about the pain to explain why he was unable to carry extra loads. There is no statement in evidence by Mr Alkaldani. When contacted by EML’s investigator for the purpose of obtaining an interview, Mr Alkaldani advised that he wanted to stay out of the matter and did not wish to participate.[9] Mr Al Khaldy stated that Mr Alkaldani told him that he did not want to be involved because, if he helped him, he would jeopardise his job.
[9] Reply at pages 28-29.
Mr Al Khaldy stated that, on the evening of 14 December 2022, he received a telephone call from Mr Mavruk advising that he was to attend a worksite in Marsfield the following day. He texted Mr Mavruk requesting the exact address of the Marsfield worksite and Mr Mavruk replied to the text with the full worksite address.[10] Contrary to Mr Mavruk’s evidence, Mr Al Khaldy’s first attendance at the Marsfield worksite was on 15 December 2022.
[10] ARD at page 48.
Mr Al Khaldy stated that, on 15 December 2022, he commenced work at the Marsfield worksite at about 6:15am. Work started early because concrete was being poured and it needed to be finished as soon as possible. They were under great pressure to complete the work. They finished the work in three hours after which Mr Mavruk advised that they would only be paid for half a day because there was nothing else to be done. He offered his workers a full day’s pay if they went to the Burwood worksite. As he needed the money, Mr Al Khaldy agreed and drove himself to the Burwood worksite, where he arrived at about 10.30am.
However, in his statement to the investigator, Mr Al Khaldy stated that, on 15 December 2022, he commenced work at the Burwood worksite at 7.00am. In the statement to his lawyer, he sought to explain the inconsistency between the two statements as follows:
“Details may have gotten lost during translation and the investigator seems to have understood that I was at the Burwood site for the whole day. This is not the case, while I was it Burwood when I injured myself, I initially started work that day at Marsfield and later during the day travelled to Burwood.“[11]
[11] ARD at pages 4-5 at [33].
Mr Al Khaldy stated that, whilst at the Burwood worksite on 15 December 2022, Mr Mavruk told them to move things, including bearers and metal frames, from level 4 to level 5 of the building. They were required to perform this work as quickly and as efficiently as possible. They were placed under a lot of pressure as they were short-staffed. At that time, he was working with Mr Alkaldani, Mr Mohammad Araf, Mr Dia Al Basrawi and a few other people whose names he could not recall. They were told to hurry up. He was asked by Mr Mavruk to carry three wet timber bearers or more at a time. Mr Al Khaldy told him that he would carry three at a time. The three timber bearers were 2,400cm in length and weighed about 90kg or more and he was required to carry them for a distance of about 20m to a spot where they were supposed to set up to establish the next floor.
In his statement to the investigator, Mr Al Khaldy stated that the three timber bearers weighed about 100kg or more and that he had to carry them for a distance of about 20m to 25m to the point of set up.
Mr Al Khaldy described the incident that caused him to fall and sustain injury as follows:
“I was walking up and carrying the three bearers and I stood on a piece of wood which spun around and I fell and the three bearers fell on top of me. They cut my ear as well and my ear was bleeding. I fell sideways on my left side but all the weight fell on top of me on my right side of my body. I don’t remember the exact time I fell but I think it was around 11:15am or 11:30am. This was the time we usually take a break but we didn’t have a break yet because we were so busy.”[12]
[12] ARD at page 5 at [36].

The incident described above was not referred to in either of Mr Al Khaldy’s worker’s injury claim forms dated 5 May 2023[13] or 20 September 2023.[14]
[13] ARD at pages 55-62.
[14] ARD at pages 96-103.
Mr Al Khaldy stated that he thought there were two Asian men who pulled the timber bearers off him. They moved him aside by about a metre so that he could sit up. They asked him if he was okay. About half an hour later, Mr Mavruk saw him sitting there and he asked the two Asian men what had happened. Mr Al Khaldy could not understand what was being said. Mr Mavruk asked him where he had injured himself and he had broken any bones. Mr Al Khaldy said, “I feel like my back is finished”.[15] Mr Mavruk then asked whether he was alright and started to feel his body from his legs to his arms. When he reached his neck, Mr Al Khaldy said, “no, no don’t touch my neck, it’s really hurting”.[16] Mr Mavruk told him to rest. He told Mr Mavruk that his back was on fire. Mr Mavruk asked him to lay down on a pallet of wood and rest his back.
[15] ARD at page 5 at [37].
[16] ARD at page 5 at [37].
Mr Al Khaldy stated that the two Asian men were asking him whether he was now okay. Mr Al Khaldy was unable to understand them and one of them took out his mobile telephone to translate into Arabic whether he wanted an ambulance. Mr Mavruk saw the man using the translator on his mobile telephone and sort of got angry and told the two men to go away and leave Mr Al Khaldy alone.
Mr Mavruk’s evidence was that there were no Asian men at the Burwood worksite. However, Mr Al Khaldy maintained that he clearly recalled two Asian men at the Burwood worksite.
Mr Al Khaldy stated that Mr Mavruk sat with him for about 15 minutes and asked him whether he had his Medicare card on him. He told him that his Medicare card was at home. After about 15 to 20 minutes, Mr Al Khaldy felt that his back was getting worse. He was unable to stand upright because his right leg was numb. The two Asian men assisted him by putting his arms on their shoulders and they walked him down the stairs from level 5 to ground level. The worksite had no hoist. After he got to ground level, he told Mr Mavruk that he was unable to drive home. Mr Mavruk suggested he call one of his friends to give him a lift home and told him that, once he finished work, he would go to Mr Al Khaldy’s home and take him to hospital. Mr Al Khaldy telephoned his girlfriend (Ms Vivan Shamuel) and asked her to pick him up and take him home. She did so. Mr Mavruk did not come over to his home to take him to hospital that day.
Mr Al Khaldy stated that Mr Mavruk did not ask him to fill out an incident report. Apart from Mr Mavruk and the two Asian men, no one else had come near him or saw him in pain after his fall.
Mr Al Khaldy stated that he did not hear from Mr Mavruk until 17 December 2022 when he went to his home after he had texted him to come and collect his wages.[17] On collecting his wages from Mr Mavruk, the latter enquired as to how he was and Mr Al Khaldy replied that he was in pain. He asked Mr Mavruk for the paperwork to lodge with the insurer as he was not too sure of the process. Mr Mavruk advised him that he was still getting the paperwork sorted and that he would contact him once finished. Mr Al Khaldy had not heard from Mr Mavruk since. He had tried to telephone Mr Mavruk multiple times without receiving a response.
[17] Reply at page 56.
Mr Al Khaldy stated that, thereafter, he remained at home for about two weeks. His girlfriend massaged his muscles but there was no improvement. He consulted a physiotherapist, Mr Tony Najim. After about three or four consultations, there was no improvement and Mr Najim suggested that he consult his general practitioner and a specialist.
A Direction for Production was issued to Mr Najim of Star Chiropractic Clinic but no clinical records were produced.
Mr Al Khaldy stated that there was a delay in consulting a general practitioner because his Medicare card had expired. However, he was not too worried about that because Mr Mavruk had promised to take him to see a general practitioner and he assumed that ES Formwork would pay for the consultation. He consulted Dr Hasam in January 2023 and was referred for scans of his hips. He was advised to take painkillers, apply pain cream and rest. He followed this advice for about one month but there was no improvement. The pain in his back became worse and radiated into his legs.
Mr Al Khaldy stated that, after about a month, he again consulted Dr Hasam. As his condition was not getting better, Dr Hasam referred him to Dr Antoine Sanki, general surgeon. He consulted Dr Sanki about 20 days later. Dr Sanki referred him for a CT scan. He underwent a CT scan and returned to Dr Sanki, who advised that he had two options. The first option was to undergo surgery on the most affected discs in his back or try injections and see whether there was any improvement after six months. He underwent three sessions of injections in his back by Dr Sanki in about March or April 2023. There was no improvement in his condition after the injections and he was still in a lot of pain. He had an appointment with Dr Sanki on 13 June 2023 but it was cancelled because Dr Sanki was not well enough to see patients.
Mr Al Khaldy stated that, during Ramadan 2023, he and his girlfriend went to Lakemba to have dessert at a sweet shop. Whilst they were seated in the sweet shop, he saw Mr Mavruk walk by on the street. He got up and greeted Mr Mavruk, who responded, “I’m sorry, who are you?”[18] Mr Mavruk walked away. Mr Al Khaldy was disappointed by Mr Mavruk’s response. He wanted to speak with him to see how he could help him because he was in really bad shape, not able to work and wanted him to contact the insurance company to help him get treatment. Mr Mavruk’s evidence was that he did not see Mr Al Khaldy in Lakemba at any time.
[18] ARD at page 7 at [50].
Mr Al Khaldy stated that he followed up with Dr Hasam and was told that there was nothing further he could do for him. Dr Hasam advised him to follow-up with Dr Sanki. Mr Al Khaldy booked an appointment with Dr Sanki for 25 August 2023.
Mr Al Khaldy stated that he had not worked since 15 December 2022. Since then, he had used his savings for living expenses and had to sell his car to manage financially. He has had people lend him money and his girlfriend has been a massive support. However, he did state that he attempted to return to work on very light duties in the building industry but was unable to continue because of the pain in his back, neck and right knee. He was not paid for this work. He only did it to see what he would be able to do. He had not tried any other form of work since then. He did not specify the dates on which he attempted to return to work on light duties in the building industry, although, it was likely 16 and 17 December 2022 at Marsfield as referred to in Mr Mavruk’s evidence.
Mr Al Khaldy stated that the pain in his back is very strong and that he feels an unusual tingling and numbness in his leg. It hurts a lot when he walks and so, he uses crutches. He is unable to drive for longer than 20 minutes before his pain flares up. He is not sleeping well and suffers nightmares. He feels tired, depressed and constantly in a low mood. He suffers constant pain and stiffness in his neck radiating into his left shoulder, back and right knee.
In his statement to his lawyers, Mr Al Khaldy provided a list of his ongoing disabilities.[19]
[19] ARD at pages 8-9 at [65].

Worker’s injury claim form: 5 May 2023

On 13 June 2023, Mr Al Khaldy’s lawyers served icare with a worker’s injury claim form dated 5 May 2023[20] and a certificate of capacity dated 5 June 2023.[21]
[20] ARD at pages 55-62.
[21] ARD at page 63.
In the worker’s injury claim form, Mr Al Khaldy described the incident and injury as follows:
“During the normal course of my employment, I was required to carry heavy timber beams and steel materials across multiple jobsites in Burwood and Marsfield. The timber beams were quite heavy and waterlogged. Over the course of a few weeks to months, I began to experience sharp and sporadic pain in my lower back and neck from the repetitive lifting and strenuous movements. In the week commencing 10 December 2022, the pain became progressively worse and I ceased work on 15 December 2022.”[22]
[22] ARD at page 57.
There was no reference in the above injury description to the frank injury/incident on 15 December 2022 pleaded in the ARD.
In the worker’s injury claim form, Mr Al Khaldy described the affected parts of his body in respect of the incident as being his lower back, neck and a secondary psychological condition. There was no reference in the above injury description to shoulder or right knee symptoms. The ARD pleaded injuries to the head, cervical spine, thoracic spine, lumbar spine, bilateral shoulders and a consequential psychological condition.
In the worker’s injury claim form, Mr Al Khaldy recorded the address and area at which he was injured as level 4 of the Burwood and Marsfield worksites.
In the worker’s injury claim form, Mr Al Khaldy recorded the date and time he ceased work as 15 December 2022 at 10:00am. In his statements, Mr Al Khaldy estimated that the incident occurred at 11.15am or 11.30am.
In the worker’s injury claim form, Mr Al Khaldy denied having previously had another injury, condition or personal injury related to the injury or condition sustained on 15 December 2022.
In the worker’s injury claim form, Mr Al Khaldy described his occupation as a full-time formworker, Mondays to Saturdays (50 hours per week). He recorded his usual pre-tax weekly earnings, excluding overtime and shift allowances as being $2,600. The ARD pleaded Mr Al Khaldy’s PIAWE as $2,000. At the arbitration hearing, counsel for Mr Al Khaldy submitted that the appropriate PIAWE is $2,400.

Worker’s injury claim form: 20 September 2023

In evidence, there is a further worker’s injury claim form dated 20 September 2023 signed by Mr Al Khaldy.[23]
[23] ARD at pages 96-103.
The contents of the worker’s injury claim form were almost identical to that dated 5 May 2023 with the exception of the matters referred to below.
In the worker’s injury claim form, Mr Al Khaldy recorded the address and area at which he was injured as level 5 of the Burwood worksite.
In the worker’s injury claim form, Mr Al Khaldy recorded his weekly overtime as four to five hours.

Mr Orhan Mavruk’s evidence

In evidence there is a statement by Mr Orhan Mavruk dated 31 July 2023 taken by an investigator engaged by EML.[24] I will now refer to the relevant parts of that statement ignoring those matters that are no longer in dispute.
[24] ARD at pages 28-33 and Reply at pages 41-46.
Mr Mavruk stated that it was a friend, Mr Mohammad Abu-Omar, who telephoned him to ask if he had any work and mentioned that Mr Al Khaldy was looking for work. It was not Mr Alkaldani as stated by Mr Al Khaldy.
Mr Mavruk stated that Mr Al Khaldy was employed by ES Formwork as a part-time formworker on 24 October 2022 and not in May 2022 as stated by Mr Al Khaldy. As he was a part-time worker, he had no leave entitlements. Mr Mavruk stated that Mr Al Khaldy only worked at the Burwood, Marsfield, Stanmore and Lidcombe sites. As a formworker, Mr Al Khaldy knew what he was doing as he had been doing this work before. Mr Mavruk would call or text Mr Al Khaldy with the address of the worksite he was to attend.
Mr Mavruk stated that, when Mr Al Khaldy commenced employment with ES Formwork, he was provided with a tax file declaration form but never returned the form to the company. Mr Al Khaldy told Mr Mavruk that he would not accept any transfer of money into his account and only wanted to be paid in cash. Mr Al Khaldy was paid $400 in cash for each day he worked and mostly, he was paid at the end of the week when he would come to Auburn to pick up the cash he owed for his work. Mr Al Khaldy would often ask Mr Mavruk for $50 or $100 at the end of a work day, which he would give him. Often, by the end of the week there was not much left to pay him for the work he had done because he had already been given cash. On one occasion he borrowed an extra $200 saying it was for a car or something.
Mr Mavruk stated that Mr Alkaldani would bring all the equipment to carry out formwork duties to Mr Al Khaldy. Therefore, he was not required to carry any equipment or materials.
Mr Mavruk stated that Mr Al Khaldy worked for him on the dates and at the locations referred to below:
(a)    24 October 2022 to 18 November 2022 at the Burwood worksite;
(b)    19 and 21 November 2022 at the Lidcombe worksite;
(c)    23 November 2022 at the Burwood worksite for four hours;
(d)    29 November 2022 at the Burwood worksite for four hours;
(e)    1 December 2022 at the Stanmore worksite;
(f)    14, 15 and 16 December 2022 at the Marsfield worksite, and
(g)    17 December 2022 at the Marsfield worksite for six hours.
Mr Mavruk stated that Mr Al Khaldy never mentioned to him that he had any back pain. He was not performing the job of a labourer and he was not required to lift or carry heavy materials or equipment.
Mr Mavruk denied that, on 15 December 2022, Mr Al Khaldy was working at the Burwood worksite. He maintained that he was working at the Marsfield worksite.
Mr Mavruk stated that, when Mr Al Khaldy was working at the Burwood worksite, he saw no Asian men working there. Only Mr Mavruk’s workers were on site. There was a supervisor standing next to them the whole day checking their work. Mr Al Khaldy suffered no injury because, if he had, they would have had to fill out an incident report.
Mr Mavruk stated that, at the Burwood worksite, a crane would lift plywood bearers to where they needed to work. So, there was no lifting required. The labourer would lift and carry any other materials or equipment.
Mr Mavruk stated that, on 17 December 2022, Mr Al Khaldy told him that he was going to work in Canberra and that he was going to be paid $450 per day. Mr Mavruk had not heard from Mr Al Khaldy since.
Mr Mavruk stated that Mr Al Khaldy had never called him or texted him to say that he had suffered any injury at work. It was icare that called him to say that Mr Al Khaldy was claiming workers compensation for an injury he alleged occurred whilst working for ES Formwork. Icare informed Mr Mavruk that Mr Alkaldani had been nominated as a witness to the injury. Mr Mavruk telephoned Mr Alkaldani, who informed him that Mr Al Khaldy had called him and said that he had back pain, was going to make a claim and wanted him to be his witness. Mr Alkaldani declined to be his witness.
Mr Mavruk denied seeing Mr Al Khaldy in Lakemba at any time.
Mr Mavruk stated that he did not accept that Mr Al Khaldy had injured himself whilst doing any work on any site for ES Formwork.

Mr Muhamad Shahzuan’s evidence

In evidence there is a statement by Mr Muhamad Shahzuan dated 21 November 2023.[25] I will now refer to the relevant parts of that statement.
[25] ARD at pages 10-11.
Mr Shahzuan stated that he had known Mr Al Khaldy for about two years and that they had met at work. He began working for Hassan (Mr Mavruk) on or about 20 October 2022 as a formworker. He worked with Mr Al Khaldy for about three months on one job site located in Burwood. He worked eight hours per day, six days per week. He was paid in cash on Saturdays by Mr Mavruk, as were his colleagues.
Mr Shahzuan stated that he did not sign an employment contract with Mr Mavruk. He was never provided with one. When there was work, Arif would pass on the message and tell him which worksite he was required to attend. He was aware that Mr Mavruk sent Mr Al Khaldy to different worksites.
Mr Shahzuan stated that all staff would sign-in daily in a book as they arrived at the worksite. This was how Mr Mavruk knew what hours they had worked. The book was kept in the site supervisor’s office. Mr Mavruk completed timesheets on his behalf and calculated his pay at the end of each week. They were all given a 30 minute lunch break daily. There were no other breaks during the day.
Mr Shahzuan stated that, on the day of Mr Al Khaldy’s accident, he was working on the same Burwood job site but on another level. He was informed by his friend, Mr Muhammad Rani, that Mr Al Khaldy had been injured at work. After the incident, Mr Al Khaldy did not return to work.
Mr Shahzuan stated that, prior to Mr Al Khaldy’s accident, he observed him to be fit and healthy. He was able to do his work without any problems.
Mr Shahzuan ceased working for Mr Mavruk in December 2022.

Mr Muhammad Rani’s evidence

In evidence there is a statement by Mr Muhammad Rani dated 21 November 2023.[26] I will now refer to the relevant parts of that statement.
[26] ARD at pages 12-13.
Mr Rani stated that he had known Mr Al Khaldy for about two years and that they had worked together on the Burwood job site for about three months. They were employed by Hassan (Mr Mavruk). He did not sign an employment contract. They were paid in cash on Saturdays.
Mr Rani stated that he would receive text messages from Mr Mavruk with details of the worksite he was required to attend. All staff would sign a book once they arrived at the worksite each day. This was how Mr Mavruk knew what hours they had worked. They were all given a 30 minute lunch break each day. There were no other breaks.
Mr Rani stated that, on the day of Mr Al Khaldy’s accident, he was working on the same job site but on another level. On the following day, he overheard some of his colleagues saying that somebody had been injured on the previous day. Mr Al Khaldy did not come back to work after the incident.
Mr Rani stated that, before Mr Al Khaldy got hurt at work, he observed that he was able to work without any physical restrictions.
Mr Rani ceased working for Mr Mavruk in December 2022.

Ms Vivan Shamuel’s evidence

In evidence there is a statement by Ms Vivan Shamuel dated 21 March 2024.[27] I will now refer to the relevant parts of that statement.
[27] AALD dated 14 June 2024 at pages 41-42.
Ms Shamuel stated that she has been in a relationship with Mr Al Khaldy since February 2018.
Ms Shamuel stated that, at about 12.00pm on 15 December 2022, she recalled receiving a telephone call from Mr Al Khaldy informing her that he had fallen at work and requesting her to come and collect him from the worksite because he was in pain and could not drive himself home. Mr Al Khaldy texted her the address of the Burwood worksite and she drove there in her car to pick him up.
Ms Shamuel stated that when she arrived at the Burwood worksite, Mr Al Khaldy was waiting for her at the entrance of the site, unaccompanied. He appeared in shock and in pain at the time. She offered to take him to a doctor and he refused because Hassan (Mr Mavruk) had told him that he would take him to see a doctor. So, she took him home.
Ms Shamuel stated that, on the following day, she visited Mr Al Khaldy and observed that he was in a lot of pain and was unable to move properly. He was in too much pain to lay in bed and she had to help him lay on the ground, which he found to be more comfortable.
Ms Shamuel stated that, a couple of days later, she recalled that Mr Al Khaldy received a text message from Mr Mavruk to come and collect his wages from an address in Auburn. She drove him there. Mr Mavruk met them outside and came to the car to speak to Mr Al Khaldy. She recalled Mr Mavruk telling Mr Al Khaldy that he needed to sort out his tax papers and that he would take him to see a doctor when this was done.
Ms Shamuel stated that she recalled telling Mr Al Khaldy not to wait for Mr Mavruk to take him to see a doctor because he was not responding to him.
Ms Shamuel stated that, weeks later, Mr Al Khaldy gave up on waiting on Mr Mavruk and she drove him to see his general practitioner, Dr Sabri (Dr Hasam).
Ms Shamuel stated that, prior to his injury, Mr Al Khaldy was capable of looking after himself and attending to his home. He always presented neatly and had a tidy home. Since the accident, he has been unable to do household chores such as cleaning, washing his clothes and cooking. He has been relying on her to assist him with the maintenance of his home.

Ms Shamuel stated that Mr Al Khaldy had not returned to work since 15 December 2022.

The treating medical evidence

In respect of the injuries allegedly suffered on 15 December 2022, Mr Al Khaldy initially consulted Dr Hasam, general practitioner of Fairfield[28] and subsequently, Dr Andrew Kako and Dr Kalim Yacoub, general practitioners, of Genesis Health Centre.[29] He also consulted Dr Antoine Sanki, general surgeon, of Fairfield District Medical Centre.[30]
[28] Reply at pages 58-59.
[29] Reply at pages 86-96.
[30] Reply at pages 64-85.
Mr Al Khaldy’s evidence was that, prior to consulting Dr Hasam, he consulted Mr Najim, who Mr Al Khaldy believed to be a physiotherapist. After about three or four consultations, there was no improvement and Mr Najim suggested that he consult his general practitioner and a specialist. A Direction for Production was issued to Mr Najim of Star Chiropractic Clinic but no clinical records were produced.
There were no clinical records pertaining to Mr Al Khaldy from Dr Hasam’s medical practice in evidence. In evidence, there were only two letters of referral from Dr Hasam to Dr Balsam Darwish and to Fairfield Physio & Health Care both dated 26 June 2023.[31] Mr Al Khaldy’s unchallenged evidence was that he first consulted Dr Hasam about the subject work-related injuries in January 2023 and that Dr Hasam referred him to Dr Sanki.
[31] Reply at pages 58-59.
On 22 March 2023, Mr Al Khaldy consulted Dr Sanki, who, in the clinical records, recorded complaints of severe pain since 12 December 2023 (obviously a typographical error); strong pain; an inability to sleep all night with pain radiating to the right thigh and right leg with numbness in the lower limb.[32] Mr Al Khaldy told Dr Sanki that he used to consult a chiropractor by the name of Tony (Mr Najib) near Parramatta. There are no reports or clinical records from any chiropractor who may have treated Mr Al Khaldy in evidence. On examination, Dr Sanki recorded that Mr Al Khaldy walked with his spine bent forward. The reason for contact noted in the entry dated 22 March 2023 was sciatica and L3/4 disc prolapse. Dr Sanki referred Mr Al Khaldy for CT scans of his cervical spine and thoracolumbar spine, a nuclear scan and for pathology tests. He prescribed Diazepam 5mg tablets and Celebrex 200mg capsules.
[32] ARD at pages 151-152.
On 23 March 2023, Mr Al Khaldy consulted Dr Sanki, who noted that his left straight leg raising test was positive.[33] Unless this was a typographical error, such finding was inconsistent with Mr Al Khaldy’s report of back pain radiating to the right thigh and right leg with numbness in the right lower limb.
[33] ARD at page 151.
On 23 March 2023, Mr Al Khaldy underwent CT scans of his cervical spine, thoracic spine and lumbosacral spine as well as a bone scan by Dr Joseph Sanki, radiologist.[34]
[34] ARD at pages 160-162.
In respect of the cervical spine, the radiologist concluded that mild spondylotic change was present in the discovertebral joints with evidence of loss of disc height, endplate sclerosis and endplate osteophyte formation. Mild arthritic change was also present in the facet joints. No disc bulges were demonstrated and there was no evidence of neural compression.
In respect of the thoracic spine, the radiologist concluded that mild spondylotic change was present in the discovertebral joints with evidence of loss of disc height, endplate sclerosis and endplate osteophyte formation. Arthritic change was present in the facet joints, costovertebral joints and costotransverse joints. There were minor broad-based disc bulges at T5/6, T7/8 and T11/12 and the discs were abutting the anterior part of the thecal sac.
In respect of the lumbar spine, the radiologist concluded that there was moderate spondylotic change present in the discovertebral joints with evidence of loss of disc height, endplate sclerosis and endplate osteophyte formation. Mild arthritic change was present in the facet joints. There was a minor broad-based disc bulge at L1/2 that was abutting the anterior part of the thecal sac. There was a mild to moderate broad-based disc bulge at L2/3 where the disc was indenting the anterior part of the thecal sac causing minor narrowing of the exit foramina bilaterally. There was a mild to moderate broad-based disc bulge at L3/4 where the disc was indenting the anterior part of the thecal sac and causing mild narrowing of the exit foramina bilaterally. There was a moderate broad-based disc bulge at L4/5 where the disc was indenting the anterior part of the thecal sac. Canal stenosis was present due to a combination of the disc bulge, ligamentum flavum hypertrophy and facet joint arthritis. Endplate osteophytes and the intervertebral disc were causing mild narrowing of the exit foramina bilaterally and were abutting each L4 nerve root with their respective exit foramen. At L5/S1 there was no evidence of disc bulge or neural compression.
In respect of the bone scan, the radiologist found evidence of arthritic change in the vertebral column, the acromioclavicular joints, the glenohumeral joints and the knees. In the cervical spine, arthritic change was affecting the discovertebral joints and facet joints. The most arthritic facet joint in the cervical spine was on the left side of C7/T1. In the lumbar spine, arthritic change was affecting the discovertebral joints and facet joints. The most arthritic facet joint in the lumbar spine was on the left side of L5/S1. In the thoracic spine, severe arthritic change was evident in the right T11/12 facet joint.
On 24 March 2023, Mr Al Khaldy consulted Dr Sanki, who recorded that the consultation related to an L4/5 disc and facet joint arthritis. He referred Mr Al Khaldy for a CT guided L4/5 epidural cortisone injection and an L4/5 and L5/S1 facet joint cortisone injection.[35]
[35] ARD at page 151.
On 31 March 2023, Mr Al Khaldy underwent a CT guided epidural injection into the left L4/5 epidural space by Dr Caristo, radiologist.[36]
[36] ARD at pages 157-158.
On 5 April 2023, Mr Al Khaldy underwent a CT guided injection into each L4/5 facet joint by Dr Joseph Sanki.[37]
[37] ARD at page 155.
On 12 April 2023, Mr Al Khaldy underwent a CT guided bilateral L5/S1 facet joint injection by Dr Caristo.[38]
[38] ARD at pages 152-153.
On 5 June 2023, Mr Al Khaldy consulted Dr Kalim Yacoub, general practitioner, of Genesis Health Care. Dr Yacoub recorded particulars of Mr Al Khaldy’s lawyer in his clinical records. The reason for the consultation was stated to be workers compensation. Dr Yacoub noted Mr Al Khaldy’s occupation as a formworker and that he had sustained a fall and injury at work on 15 December 2022. He referred to the CT scans of the cervical spine, thoracic spine and lumbar spine. He noted that Mr Al Khaldy reported undergoing several cortisone injections without benefit. Mr Al Khaldy reported depressed mood, intrusive thoughts and poor sleep. He was not currently suicidal. He had trialled Tramadol and other opioids without benefit. He had experienced minimal improvement and had been referred to this medical practice.[39]
[39] ARD at pages 129-130.
On examination, Dr Yacoub observed Mr Al Khaldy to be alert and orientated. There was bilateral mid to lower back pain shooting down the right leg together with some intermittent neck pain. There was no pain on spinal palpation. Dr Yacoub opined that Mr Al Khaldy was suffering from chronic pain, back pain, anxiety and post-traumatic stress disorder. No complaints of shoulder or right knee symptoms were recorded in the clinical records on 5 June 2023. Dr Yacoub referred Mr Al Khaldy to Precise Psychology,[40] to Sydney Pain Centre[41] and for MRI scans of his cervical spine, thoracic spine and lumbosacral spine.[42] Dr Yacoub also sent an email to Mr Al Khaldy’s lawyer. Mr Al Khaldy was requested to return for review in two weeks.
[40] ARD at page 146.
[41] ARD at page 147.
[42] ARD at page 148.
There were no reports or clinical records from Precise Psychology or Sydney Pain Centre in evidence. Further, there was no evidence that Mr Al Khaldy underwent the MRI scans recommended by Dr Yacoub.
On 5 June 2023, Dr Yacoub issued Mr Al Khaldy with a certificate of capacity.[43] Dr Yacoub recorded the diagnosis of the work-related injury as chronic back pain and referred to the CT scan findings of spondylotic changes in the cervical spine, thoracic spine and lumbosacral spine together with disc bulges at L3 and L4. He described the injury as having occurred whilst Mr Al Khaldy was working as a formworker. Mr Al Khaldy was certified as having no current capacity for work from 6 June 2023 to 6 July 2023.
[43] ARD at pages 172-174.
On 19 June 2023, Dr Yacoub recorded in the clinical records that Mr Al Khaldy failed to attend his scheduled appointment for review. A telephone consultation was rescheduled for 27 June 2023.[44]
[44] ARD at page 130.
On 26 June 2023, Dr Hasam referred Mr Al Khaldy to Dr Darwish, neurosurgeon for the management of his acute chronic lower back pain radiating into the right leg associated with stiffness and restricted movement as a result of a lower back injury six months earlier. Dr Hasam noted that Mr Al Khaldy’s past history included diabetes myelitis on 27 March 2019, back and knee pain on 10 November 2019 and sialadenitis on 1 June 2020. He also noted one of Mr Al Khaldy’s current medications as Endep 25mg tablets.[45]
[45] ARD at pages 123-124.
Mr Al Khaldy’s evidentiary statements did not refer to consultations with Dr Darwish. There were no reports or clinical records from Dr Darwish in evidence.
On 26 June 2023, Dr Hasam also referred Mr Al Khaldy to Fairfield Physio & Health Care for the management of his acute chronic lower back pain radiating into the right leg associated with stiffness and restricted movement as a result of a lower back injury six months earlier.[46]
[46] ARD at pages 125-126.
Mr Al Khaldy’s evidentiary statements did not refer to consultations with a physiotherapist from Fairfield Physio & Health Care. There were no reports or clinical records from that entity in evidence.
On 27 June 2023, Dr Andrew Kako, general practitioner, of Genesis Health Care recorded in the clinical records that Mr Al Khaldy did not attend his scheduled telephone consultation.[47]
[47] ARD at pages 130-131.
On 27 July 2023, Mr Al Khaldy consulted Dr Kako who took a history that Mr Al Khaldy was injured on 15 December 2022 when carrying heavy timber (3 × 30kg) whilst walking. Mr Al Khaldy’s vision was obstructed, he stumbled on a piece of timber and fell onto concrete. The timber also struck his head and caused bleeding to the back of his ear and head. Dr Kako diagnosed complex lumbosacral injuries, neck pain, bilateral shoulder pain, upper back pain and undifferentiated right knee pain and an adjustment order with low mood. Dr Kako also diagnosed neuropathic pain.[48]
[48] ARD at pages 131-132.
On 27 July 2023, Dr Kako also recorded that, since Mr Al Khaldy’s previous consultation at that medical practice, he had suffered persistent neck pain, back pain, shoulder pain, low mood, anxiety, insomnia and recurrent thoughts of the incident. Dr Kako provided psychotherapy, discussed relaxation strategies and positive thinking. They also discussed the radiological findings. Dr Kako prescribed Endep 10mg tablets.
On 27 July 2023, Dr Kako issued Mr Al Khaldy with a certificate of capacity.[49] Dr Kako recorded the diagnosis of the work-related injury as complex lumbosacral injuries with neck, bilateral shoulder, upper back and right knee pain (undifferentiated) and adjustment disorder with low mood. He described the injury as having occurred whilst Mr Al Khaldy was working as a formworker. Mr Al Khaldy was certified as having no current capacity for work from 6 July 2023 to 31 August 2023.
[49] ARD at pages 189-192.
On 4 August 2023, Mr Al Khaldy consulted Dr Kako who repeated much of the same information contained in the clinical records on 27 July 2023. Dr Kako referred to his diagnosis and the reason for Mr Al Khaldy’s visit as being for neuropathic pain. He increased the prescription of Endep from 10mg tablets to 25mg tablets.[50]
[50] ARD at pages 132-133.
On 25 August 2023, Mr Al Khaldy consulted Dr Sanki, who prescribed Panadeine Forte 500 mg/30mg tablets and entered the following in his clinical records:
“not improving. for treatment of spinal stenosis. rsulting [sic] from injury in buiding [sic] industry, formwork construction. using crutches. owner called hassan. injury due to lack of enough workers. concreter, i. [sic] there was supoose [sic] to carry 18 people, there were only 5 labouers [sic]. he was carrying more weighhts [sic] lost his balance fell from a height rt ear bled and a weight of 100kg timber dropped on him. after felt dizzy and back was numb. neck like fire on it. was sent home. used to be given 400 cas [sic: cash] daily.”[51]
[51] ARD at page 151.
The entry in Dr Sanki’s clinical records on 25 August 2023 was the last entry in those records in evidence.
On 28 August 2023, Mr Al Khaldy consulted Dr Yacoub who, in the clinical records, recorded the history of injury and the injuries sustained on 15 December 2022 in the same terms as Dr Kako’s entry on 27 July 2023. Dr Yacoub recorded that Mr Al Khaldy had undergone physiotherapy one to two times per week between 5 June 2023 and 10 August 2023 and that physiotherapy had now ceased without any deterioration since. Mr Al Khaldy had not consulted a psychologist as EML was awaiting the outcome of a factual investigation. Dr Yacoub opined that Mr Al Khaldy was suffering from chronic back pain associated with his work injury including several disc bulges at the L1/2, L2/3, L3/4 and L4/5 that required physiotherapy for rehabilitation and consultations with a psychologist for the optimisation of his mood.[52]
[52] ARD at pages 133-134.
On 4 September 2023, Mr Al Khaldy consulted Dr Yacoub who, in the clinical records, recorded the history of injury and the injuries sustained on 15 December 2022 in the same terms as Dr Kako’s entry on 27 July 2023. Dr Yacoub recorded that the outcome of the factual investigation was not yet known. Dr Yacoub recommended review in two weeks with the EML case manager.[53]
[53] ARD at pages 134-135.
On 4 September 2023, Dr Yacoub issued Mr Al Khaldy with a certificate of capacity.[54] Dr Yacoub recorded the diagnosis of the work-related injury as complex lumbosacral injuries with neck, bilateral shoulder, upper back and right knee pain (undifferentiated) and adjustment disorder with low mood. He described the injury as having occurred when Mr Al Khaldy was carrying heavy timber (3 × 30kg) whilst walking. Vision was obstructed, he stumbled on a piece of timber and fell onto concrete. The timber also struck his head and caused bleeding to the back of his ear and head. Mr Al Khaldy was certified as having no current capacity for work from 31 August 2023 to 1 September 2023. This was the last certificate of capacity in evidence.
[54] ARD at pages 193-196.
On 6 September 2023, Mr Al Khaldy consulted Dr Kako who, in the clinical records, recorded the history of injury and the injuries sustained on 15 December 2022 in the same terms as he did in the entry on 27 July 2023. Dr Kako recorded that Mr Al Khaldy complained of persistent pain in the back and difficulty holding back urination. He was mobilising with a walking stick. In respect of a plan, Dr Kako recommended a review the following week with Dr Yacoub to discuss future employment, medications and neurological review. The reason for the consultation was recorded as being for neuropathic pain.[55]
[55] ARD at page 136.
On 11 September 2023, Mr Al Khaldy consulted Dr Yacoub who, in the clinical records, recorded the history of injury and the injuries sustained on 15 December 2022 in the same terms as Dr Kako did in the entry on 27 July 2023. Dr Yacoub noted that physiotherapy, consultation with a psychologist and the proposed MRI scans had still not been approved. He recommended that Mr Al Khaldy continue with the exercise program recommended by the physiotherapist. Dr Yacoub reinforced the importance of maintaining a positive outlook and that Mr Al Khaldy continue with positive thinking strategies, sleep hygiene, daily stretches and exercises, mild impact exercise 30 minutes, four to five times per week and limit fluid consumption to 1.5l per day.[56]
[56] ARD at pages 137-138.
The entry in the Genesis Health Centre clinical records on 11 September 2023 was the last entry in those records in evidence.
On 24 October 2023, Dr Kako prepared a report at the request of Mr Al Khaldy’s lawyers.[57] Dr Kako reported that Mr Al Khaldy provided him with the following history of injury:
“Mohammed reports that on the 15th December 2022, he was carrying three heavy timber bearers each weighing approximately 30kg. He was required to walk on a piece of wood which happend [sic] to be unstable, causing Mohammed to fall. At the time Mohammeds [sic] vision was obstructed due to the size of the timber bearers which fell on top of him when he landed unto [sic] concrete. The timber also struck his head and caused bleeding to back of ear and head. He presented to see a General Practioner [sic] named Sabri Hasam who offered conservative treatment and reviewed with General Surgeon Dr Antoine Sanki who recommended either neurosurgery or injection to his L4/5 region which he received.”[58]
[57] ARD at pages 120-122.
[58] ARD at page 120 at [1].
Dr Kako diagnosed Mr Al Khaldy as having suffered the following injuries in the work-related incident:
(a)    a minor broad-based disc bulge at C3/4 abutting the anterior part of the thecal sac;
(b)    minor broad-based disc bulges at T5/6, T7/8 and T11/12 abutting the anterior part of the thecal sac;
(c)    disc bulges at L1/2, L2/3, L3/4 and L4/5 abutting/indenting the anterior part of the thecal sac with the discs at L2/3 and L3/4 causing mild narrowing of the exit foramina bilaterally;
(d)    soft tissue injuries to the shoulders, and
(e)    severe anxiety and low mood secondary to injury, pain and immobility.
Dr Kako opined that Mr Al Khaldy was likely to have permanent chronic pain due to his injuries with a degree of immobility and that he was likely to experience lifelong restricted capacity in lifting, standing and sitting.
Dr Kako opined that the history provided by Mr Al Khaldy, his examination of Mr Al Khaldy and the radiological findings were consistent with the injuries suffered. Mr Al Khaldy reported that he was feeling well prior to the injury. Dr Kako opined that work was a substantial contributing factor to Mr Al Khaldy’s injury and subsequent incapacity. Dr Kako also noted that no pre-existing injuries, conditions or pre-disposing factors were identified or declared that could have contributed to Mr Al Khaldy’s condition.
In respect of treatment, Dr Kako recommended conservative treatment in the form of physiotherapy, analgesia, consultations with a psychologist and consultations with a pain specialist. He opined that likely future treatment would include neurosurgical review in the event that Mr Al Khaldy did not achieve relief with pain specialist intervention. There was also the possibility of surgery by way of decompression, discectomy or a spinal fusion. However, considering the number of disc prolapses, Dr Kako opined that a more conservative approach may be warranted.
Dr Kako opined that Mr Al Khaldy had no capacity for work due to pain, immobility and mental health deterioration. However, with successful pain specialist intervention, he may have a limited work capacity but this would depend on his mobility, level of pain and mental health.

The forensic medical evidence

Dr Andrew Porteous: 20 October 2023

On 19 October 2023, Mr Al Khaldy consulted Dr Andrew Porteous, occupational physician, at the request of his lawyers. In evidence, there is a report by Dr Porteous dated 20 October 2023.[59] I will now refer to the relevant parts of that report.
[59] ARD at pages 112-118.
Dr Porteous reported that he had received, reviewed and considered the dispute notice dated 13 July 2023, Mr Al Khaldy’s statement dated 6 October 2023, the Genesis Health Centre clinical notes as at 11 September 2023 and the clinical notes of Dr Sanki as at 25 September 2023.

Dr Porteous took the following history of injury:
“On 15 December 2022, he said he was carrying three wooden bearers, which were 2.4m x 120 x 150. He said they were old and heavy because of their weight. He estimated they weighed about 33kg each. He said they were very heavy. He said they were being pushed by the foreman to finish the job and they were short.
As he was walking along level 5, at that point there was a small scooper in the floor. In the slab at level 5, there were bits of wood that have come down from level 6 and he did not see them and said his feet got caught in them and he tripped and fell forward with one of the bearers cutting his right ear.
With the accident, today he said, he had onset of cervical pain and lumbar spine pain. When I asked, he specifically was clear that there was no thoracic spinal pain and even on pointing to the area he was sore he did not indicate there was any thoracic pain. He also said he had right knee symptoms. He was quite clear on the day that he had no left leg symptoms. I asked him twice.”[60]
[60] ARD at page 113.
Dr Porteous noted that Mr Al Khaldy subsequently attended on his general practitioner, Dr Hasam, and was prescribed pain relief and referred to Dr Sanki. Dr Sanki arranged for an injection, which took place in about March 2023 but it made no difference.
Dr Porteous noted that Mr Al Khaldy had not yet undergone physiotherapy or consulted a psychologist. This was inconsistent with Mr Al Khaldy’s report to Dr Yacoub that he had undergone physiotherapy one to two times per week between 5 June 2023 and 10 August 2023. Dr Porteous also noted that Mr Al Khaldy had been off work since the accident. Due to his substantial chronic pain, Mr Al Khaldy’s mood had dropped substantially. He rarely went out. He experienced ongoing symptoms.
Dr Porteous reviewed and summarised the clinical notes provided to him, including the medical imaging reports.
Dr Porteous noted that Mr Al Khaldy reported chronic cervical pain rated at 4/10 to 8/10 on the visual analogue scale, with referred pain into both shoulders. Mr Al Khaldy reported chronic lumbar pain rated at 7/10 to 10+/10 on the visual analogue scale with referred pain into the right hip and down the right leg to the foot. Mr Al Khaldy reported a distinctly different right knee pain rated 4/10 to 8/10 on the visual analogue scale and he was adamant that there were no left leg symptoms.
Dr Porteous noted that Mr Al Khaldy reported an ability to stand, walk and sit for a maximum of five minutes. He always walks with a walking crutch in the right hand. He only drives for 20 minutes. He was not taking any pain relieving medication. Sleep was disturbed but his mood was okay.
Dr Porteous noted that Mr Al Khaldy denied any work injuries, fractures or previous operations. He reported that he had been diagnosed with diabetes for five years for which he takes medication. Dr Porteous made no reference to Mr Al Khaldy’s history of back and knee pain on 10 November 2019 that was recorded in Dr Hasam’s referral letters dated 26 June 2023.
Dr Porteous took the following occupational history:
“Mr Al Khaldy said that in Kuwait he worked as a carpenter for about 15 years and then raising and trading cattle for about three years. He came to Australia from Kuwait in 2013 and started working in formwork and he has been doing that since working as a formwork labourer, eight hours a day, six days a week.”[61]
[61] ARD at page 115.
Such occupational history, in particular, working as a formwork labourer since 2013, eight hours per day, six days per week was not completely consistent with being in receipt of some form of Centrelink payments between 4 August 2021 and 8 November 2021; between 5 March 2022 and 6 April 2022; and on 9 July 2022, as evidenced in his bank statements.[62] Of course, there may have been an explanation for this but it was not addressed in Mr Al Khaldy’s evidence. Further, Mr Al Khaldy’s taxation documents may have been of some assistance but were not produced in answer to ES Formwork’s Notice for Production dated 22 May 2024.
[62] AALD dated 14 June 2024 at pages 5-7, 10 and 14.
On examination, Dr Porteous observed that Mr Al Khaldy weighed 86kg and was 178cm in height. He walked with a shortened stance gait, hunched up using an underarm crutch in his right arm.
On examination of Mr Al Khaldy’s cervical spine, Dr Porteous observed that he had 10% of extension with very limited movement and a reluctance to do so; 90% of cervical flexion with 30°, 30°and 33° of right rotation and 30°, 33° and 30° of left rotation measured with a goniometer. There were marked restrictions but there was no dysmetria or guarding observed.
On examination of Mr Al Khaldy’s shoulders, Dr Porteous noted that he was reluctant to move them because they caused a degree of increased neck pain. However, he had a 160° flexion bilaterally and 160° abduction bilaterally. He stated that these were restricted because of neck pain. Other shoulder movements were normal at 60° except for internal rotation, which was 90°. He had normal power, sensation and reflexes in the upper limbs. There was no evidence of radiculopathy.
On examination of Mr Al Khaldy’s thoracic spine, Dr Porteous observed movement of 10° each way and noted that he was reluctant to move further because it increased his lumbar pain.
On examination of Mr Al Khaldy’s lumbar spine, Dr Porteous observed 90° of flexion and 20° of extension. There was 20°, 20° and 23° right lateral movement and 10°, 10° and 12° left lateral movement measured with a goniometer. There was a negative slump test. There was normal sensation reported to light touch testing in the lower legs with normal reflexes and normal power. Dr Porteous observed that, with effort, he was able to get up out of the chair, get on and off the examination couch and sit on a stool for part of the examination.
On examination of Mr Al Khaldy’s knees, Dr Porteous observed that he had 0° to 120° of flexion in the right knee and 0° to 125° flexion in the left knee. There was no instability observed in either knee. He walked with a normal gait.
Dr Porteous opined that Mr Al Khaldy sustained the following injuries on 15 December 2022:
“The history is consistent with him having a small laceration on the right ear.
It is fairly likely that he aggravated underlying degenerative change in the cervical spine, lumbar spine and right knee.
Since then, he appears to have been substantially disabled by the pain and displayed a rather pain related posture and behaviour today including being quite reluctant to assist with the examination, but I was able to get repeated movement that were consistent.
There are no consequential injuries.”[63]
[63] ARD at page 116 at [2].
In respect of prognosis, Dr Porteous observed that Mr Al Khaldy had a very marked disability and high levels of pain that had been present for some 10 months, which suggested that the prognosis is very guarded. Movement appeared to cause considerable pain beyond what was to be expected for such an accident. Dr Porteous opined that there may be some form of pain disorder that would require comment by a pain specialist.
In respect of causation, Dr Porteous noted that there had been consistent complaints of neck pain, lumbar pain and right knee pain since the accident. Although, he also noted that the early general practitioner notes did not appear to be available until some months after the accident. Mr Al Khaldy had consistently indicated that his pain came on with resilience since the accident and had continued. Dr Porteous concluded:
“With that therefore I have to conclude at this point that these conditions are more likely than not work related and work was the main contributing factor to his aggravation or exacerbation.
He clearly has more likely than not pre-existing underlying degenerative changes reported on the radiology on file.”[64]
[64] ARD at page 117 at [4].
In respect of treatment, Dr Porteous opined that Mr Al Khaldy required some form of pain relief, at least, for the medium term. He required treatment by way of physiotherapy followed by an exercise physiologist activity-based course of treatment for a somewhat extended period. He likely needed some psychological treatment in order to help him overcome the fear of further injury and then start to gain improved function so as to be able to fully participate in an activity-based functional rehabilitation program. Dr Porteous opined that there was no evidence that Mr Al Khaldy would require surgery.
In respect of Mr Al Khaldy’s capacity for work, Dr Porteous opined as follows:
“He has substantial disability at this point and reports substantial and marked widespread pain to the point this would incapacitate him from any work lifting, pushing, pulling or carrying or bending. He would be restricted from kneeling and crouching or climbing up and down steps or slopes.
He has only ever worked in formwork and that involves all of the activities that currently I consider he is incapacitated from. I therefore believe at this point with his substantial disability that he is reasonably off work.
I would, however, note that with appropriate rehabilitation it is more likely than not at this point, given the history of the incident and the lack of major acute changes on the radiology, that there should be some recovery in the medium term.”[65]
[65] ARD at page 118 at [6].
There was no forensic medical evidence submitted by ES Formwork.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties. I will provide an outline of the parties’ submissions below.

Mr Al Khaldy’s submissions

If there is a dispute about the calculation of Mr Al Khaldy’s PIAWE, it is for ES Formwork to put on compelling evidence in this regard. However, it has not done so. ES Formwork has not put on a wages schedule.
Mr Al Khaldy’s evidence was that he generally worked six days per week and that he was paid $400 per day. Mr Mavruk did not dispute that the daily rate was $400 per day. If Mr Al Khaldy is accepted as a witness of truth, and it is submitted that he should be, then his PIAWE is $2,400 per week and not $2,000 per week as claimed in the ARD.
Mr Al Khaldy’s work was heavy and the nature of the work performed by him was detailed in his evidentiary statement. A Direction for Production was issued to Mr Tony Najim of Star Chiropractic Clinic and no documents were produced. In respect of any submission made by ES Formwork about any of Mr Al Khaldy’s pre-injury attendances at that clinic, it is equally open to the Commission to find that, due to the exceedingly heavy nature of his work, he attended for massage from time to time.
There is an issue as to whether, on 15 December 2022, Mr Al Khaldy sustained his frank injuries at the Burwood worksite. ES Formwork claimed that Mr Al Khaldy was at a worksite in Marsfield on that date. Mr Al Khaldy’s evidence was that he was at the Marsfield worksite on 15 December 2022 and, as they had finished their work quickly, he agreed to make his way to the Burwood worksite that day. He explained that in his statement to EML’s investigator, details may have been lost in translation as the investigator seemed to have understood that he was at the Burwood worksite for the whole day. Mr Al Khaldy does not speak, read or write in English. In those circumstances, it was easy to get things mixed up and so, nothing can turn on that issue.
Mr Al Khaldy is a witness of truth who gave a compelling account of what happened to him on 15 December 2022. Further, there are two co-worker witnesses who place Mr Al Khaldy at Burwood on that day, namely, Mr Shahzuan and Mr Rani. Both these witnesses also confirm that they were paid in cash. They confirm that on the day of Mr Al Khaldy’s accident, they were working at the same jobsite with him at Burwood.
Ms Shamuel, Mr Al Khaldy’s partner, stated that, on 15 December 2022, she received a call from him about having a fall at work. He asked her to come and collect him from the job site and then texted her the address of the Burwood worksite. When she arrived at the site, Mr Al Khaldy was waiting for her at the entry to the site. Mr Al Khaldy’s evidence placed Mr Mavruk at the Burwood worksite on 15 December 2022 and described their interaction after his accident.
The suggestion that the incident did not occur is simply untrue. ES Formwork baulked at first by saying that Mr Al Khaldy was neither a worker nor a deemed worker. Then it said that the accident did not happen. This conduct gave the impression that ES Formwork was trying to avoid liability.
The Commission would have no difficulty in concluding that, on 15 December 2022, Mr Al Khaldy was involved in an incident at the Burwood worksite as described by him in his evidentiary statement that resulted in injury and that Mr Mavruk knew about it.
In respect of the issue of work capacity, in evidence there is an almost uninterrupted series of certificates from Mr Al Khaldy’s treating doctor which indicate that he has no capacity for work. The injuries as described are very serious. It is clear that Mr Al Khaldy, being unable to speak, read or write in English, has no other transferable skills and can only rely on his body to work. He was assessed by his doctor as having no physical capacity to work. Dr Porteous also unequivocally assessed him as having no capacity to work.
Mr Al Khaldy requires treatment and rehabilitation. He has not received any because of EML’s blanket denial of liability.
The Commission would find that Mr Al Khaldy is totally incapacitated; that the correct PIAWE is $2,400; and that a general order should be made for medical and related expenses under s 60 of the 1987 Act.

ES Formwork’s submissions

ES Formwork’s case is that Mr Al Khaldy bears the onus of proof in establishing injury. The Commission must be satisfied to a degree of actual persuasion. Particularly so in this case where there are substantial difficulties caused by the absence of certain evidence.
In respect of the PIAWE, one would have to set the bar very low in respect of the onus of proof for Mr Al Khaldy to succeed in obtaining a finding of $2,400 per week. ES Formwork’s evidence set out the days on which Mr Al Khaldy worked and did not work.
Mr Al Khaldy’s submissions did not refer to injuries to his bilateral shoulders or thoracic spine because the evidence is anaemic in that regard.
The Commission is required to make a determination on injury.
The worker’s injury claim form dated 5 May 2023 disclosed a nature and conditions type claim. The claim form provided the address of where the incident occurred as being at both Burwood and Marsfield. The claim form did not disclose a frank injury.
The exchange of text messages on 14 December 2022 between, presumably, Mr Al Khaldy and someone on behalf of ES Formwork, provide a Marsfield address.
In his statement to the EML investigator, Mr Al Khaldy stated that, on 15 December 2022, he worked at Burwood. Eventually, that morphed into him starting work at Marsfield and then he went to Burwood to work. This creates a problem with the evidence.
Mr Al Khaldy did not make a complaint for some time after the alleged incident. The general practitioner clinical records disclosed that Dr Hasam took a history from Mr Al Khaldy of back and knee pain on 10 November 2019. Mr Al Khaldy’s submissions did not deal with this issue. He did not disclose this history to Dr Porteous. Dr Porteous took a work history that, since arriving in Australia in 2013, Mr Al Khaldy had been working as a formwork labourer eight hours per day, six days per week prior to his employment with ES Formwork. It would have been helpful to know what Dr Porteous would have made of the history of back and knee pain on 10 November 2019.
The evidence of Mr Al Khaldy and ES Formwork differ significantly as to when he commenced employment. Mr Mavruk’s evidence was that Mr Al Khaldy commenced
part-time employment with ES Formwork on 24 October 2022. Mr Mavruk set out the dates and identified sites at which Mr Al Khaldy worked between 24 October 2022 and 17 December 2022, being 29 days in total. Mr Mavruk should know because he was the person paying Mr Al Khaldy.
Mr Mavruk conceded that he paid Mr Al Khaldy $400 per day in cash. There is no evidence as to where the money he was paid went. It did not go into a bank account. Mr Al Khaldy did not produce his tax returns in response to a Notice to Produce.
Mr Mavruk stated that Mr Al Khaldy was not required to lift or carry any equipment or materials. He also stated that Mr Al Khaldy was working at the Marsfield site and not the Burwood site on 15 December 2022. Further, that Mr Al Khaldy did not tell him about a back injury.
Mr Al Khaldy’s narrative has been constructed well after the event.
On the evidence as it currently stands, Mr Al Khaldy cannot satisfy the Commission on the issue of the PIAWE; when the injury occurred; and whether there was a frank injury or a nature and conditions type claim.
There are significant unexplained deposits in the bank statements produced by Mr Al Khaldy. There is also an entry in the bank statements on 16 August 2022 of a payment, presumably for treatment, to Star Chiro Health Clinic, Kings Langley in the sum of $90. The entry on 17 August 2022 shows a deposit from SRT Formwork Pty Limited in the sum of $649.86 described as salary. The entry on 20 August 2022 shows another payment of $90 to Star Chiro Health Clinic, Kings Langley. Mr Al Khaldy’s evidence was that he had commenced full-time employment with ES Formwork in May 2022 and had worked exclusively for that entity. Yet, there was no evidence from Mr Al Khaldy explaining what had occurred with SRT Formwork Pty Limited.
Dr Porteous’ report should be given no weight at all. Dr Porteous was unaware of back and knee pain on 10 November 2019. He noted the general practitioner clinical records did not commence until some months after the subject accident.
In his statement to the EML appointed investigator, Mr Al Khaldy stated that, about 10 to 20 days before 15 December 2022, at the end of November 2022, he took a couple of days off work because his back was in so much agony.
There was no evidence of an ongoing incapacity. Dr Porteous made some comment about ongoing incapacity and that there should be some recovery in the medium term.
Ms Shamuel is not an independent witness.
The statements of Mr Shahzuan and Mr Rani are formulaic and non-specific. They do not even refer to the date of the injury. Mr Shahzuan was not a witness to the incident. He was at the same worksite but on another level of the building at Burwood. Mr Rani was not a witness to the incident. He also was at the same worksite but on another level of the building at Burwood. These statements give the Commission no comfort at all in terms of corroboration.
Considering the above submissions, the Commission cannot be satisfied to a degree of actual persuasion that Mr Al Khaldy has discharged his onus in respect of the PIAWE, injury and incapacity.

Mr Al Khaldy’s submissions in reply

The submission that Ms Shamuel is not an independent witness should be rejected. There was no application made to cross-examine her.
In respect of the entries that appear in the bank statements, it is not known whether the payment from SRT Formwork Pty Limited was some payment that was due to Mr Al Khaldy some weeks or months before. Every other deposit, with the exception of one or two, were cash deposits, which was consistent with the fact that Mr Al Khaldy was being paid in cash. There was one payment by one Mr Ali. It was not consistent with Mr Al Khaldy working. However, it was consistent with his evidence that he received money from friends.
It does not make much of a difference whether Mr Al Khaldy commenced working for ES Formwork Pty Limited in May 2022 or October 2022 unless his credit is in issue. It is submitted that there is not enough to dissuade the Commission from the proposition that Mr Al Khaldy is perfectly credible. The one SRT Formwork Pty Limited payment demonstrated in the bank statements is not enough to put his credit in issue.

In respect of Mr Al Khaldy’s right knee complaints, they did not feature in the clinical records of Dr Sanki. Dr Yacoub and Dr Kako referred to undifferentiated right knee pain. However, in his report dated 24 October 2023, Dr Kako did not causally relate the right knee symptoms to the incident on 15 December 2022. Further, there is no claim for a right knee injury in the ARD. In such circumstances, I am not prepared to make a finding in respect of the right knee despite Dr Porteous’ opinion in this regard.
I accept Dr Kako’s opinion in his report dated 24 October 2023 that Mr Al Khaldy suffered severe anxiety and low mood secondary to injury, pain and immobility. Dr Kako’s opinion in this regard had some support from Dr Porteous who opined that Mr Al Khaldy likely required some psychological treatment to help him overcome fear of further injury and then gain improved function so as to participate in an activity-based functional rehabilitation program.
ES Formwork did not put on any evidence from a forensic medical specialist in response to the evidence of Dr Porteous.
I reject ES Formwork’s speculative submission that Mr Al Khaldy was working for someone else because of the SRT Formwork Pty Limited payment into Mr Al Khaldy’s bank account and that, therefore, there was a possibility that an injury had occurred with another employer.
Although Mr Al Khaldy experienced severe back pain at the end of November 2022 that was likely related to the nature of the work he described, I am satisfied on the balance of probabilities, to a degree of actual persuasion or affirmative satisfaction, that Mr Al Khaldy has established that there was a definite or distinct physiological change or disturbance in his cervical spine and his lumbar spine arising out of or in the course of his employment with ES Formwork in the incident on 15 December 2022. There was a sudden identifiable pathological change and such condition is ongoing.
On the basis of the principles espoused in Zickar, I am satisfied that, despite the fact that Mr Al Khaldy’s cervical spine and lumbar spine condition could be characterised as the aggravation, acceleration, exacerbation or deterioration of a disease which was present as at 15 December 2022, it did not preclude reliance on the definite or distinct physiological change or disturbance in his cervical spine and lumbar spine on that date as a “personal injury” within the meaning of s 4(a) of the 1987 Act as pleaded in the ARD. The terms “personal injury” and “disease” are not mutually exclusive categories. A sudden identifiable physiological (pathological) change to the body brought about by an internal or an external event can be a personal injury and the fact that the change is connected to an underlying disease process does not prevent the injury being a personal injury.
The parties made no submissions in relation to s 9A of the 1987 Act. I have considered the factors set out in s 9A(2) of the 1987 Act. I am satisfied and find that there was a causal relationship between the injury and the work Mr Al-Khaldy was required to do on 15 December 2022, that is, there was a connection with his employment which was real and of substance. Accordingly, I am satisfied that Mr Al Khaldy’s employment was a substantial contributing factor to his injury within the meaning of s 9A of the 1987 Act.
Accordingly, I find that Mr Al Khaldy suffered injuries to his cervical spine and lumbar spine arising out of or in the course of his employment with ES Formwork on 15 December 2022 within the meaning of ss 4(a) and 9A of the 1987 Act.
I also find that Mr Al Khaldy suffered a consequential psychological condition as a result of the injuries sustained to his cervical spine and lumbar spine in the course of his employment with ES Formwork on 15 December 2022.

Entitlement to weekly benefits compensation
The legislation and legal principles

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 the Act to the injured worker shall include weekly payments during the period of incapacity.
An assessment of Mr Al Khaldy’s capacity involves a consideration of whether he has no current work capacity or a current work capacity as defined in s 32A of the 1987 Act.
Clause 9 of Schedule 3 in the 1987 Act defines “current work capacity” and “no current work capacity” as follows:
“(1) An injured worker has:
‘current work capacity’ if the worker has a present inability arising from the injury such that the worker is able to return to the worker's pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has:
‘no current work capacity’ if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker's
pre-injury employment or in suitable employment.
Section 32A of the 1987 Act defines “suitable employment” as follows:
“’suitable employment’, in relation to a worker, means employment in work for which the worker is currently suited:
(a)having regard to:
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and

(v) such other matters as the Workers Compensation Guidelines may specify, and

(b)regardless of:
(i)whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”

Section 43 of the 1987 Act in existence prior to the 2012 amending Act and the authorities suggested that regard was to be had to “the realities of the labour market in which the employee was working or might reasonably be expected to work”.[80]
[80] Arnott's Snack Products Pty Ltd v Yacob [1985] HCA 2; 155 CLR 171.
Since the 2012 amending Act, it is clear that “total incapacity” differs from “no current work capacity”. “No current work capacity” requires a consideration of the worker’s capacity to undertake not only his or her pre-injury duties, but also suitable employment, irrespective of its availability. This was confirmed by Roche DP in Mid North Coast Local Health District v De Boer[81] and in Wollongong Nursing Home Pty Ltd v Dewar[82] (Dewar).
[81] Mid North Coast Local Health District v De Boer [2013] NSWWCCPD 41.
[82] Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55.
In Dewar, Roche DP stated:
“… employment for which the worker is currently suited is determined ‘regardless of’ whether the work or employment is ‘available’ and regardless of whether it is ‘of a type or nature that is generally available in the employment market’. However, other aspects of Lawarra Nominees and Woods remain relevant in determining whether a worker is ‘suited’ for suitable employment.[83]
However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that ‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’ … However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.”[84]
[83] Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 at [56].
[84] Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 at [57]-[60].
If Mr Al Khaldy has “no current work capacity” as has been submitted by his counsel, I must assess whether he has been able to return to both his pre-injury duties and suitable employment since 15 December 2022.
I will firstly deal with Mr Al Khaldy’s ability to return to his pre-injury duties.
On 24 October 2023, Dr Kako opined that Mr Al Khaldy was likely to experience permanent chronic pain and a degree of immobility due to his injuries with lifelong restricted capacity in lifting, standing and sitting.
On 20 October 2023, Dr Porteous opined that Mr Al Khaldy is incapacitated for any work involving lifting, pushing, pulling or carrying or bending. Further, he would be restricted from kneeling and crouching or climbing up and down steps or slopes. Dr Porteous also opined that formwork involved all of the activities that he currently considered Mr Al Khaldy is incapacitated from performing.
Accordingly, based on the unchallenged opinions of Dr Kako and Dr Porteous, I am satisfied and find that Mr Al Khaldy has had no capacity for his pre-injury duties from 18 December 2022 and ongoing. Noting that he worked a full day on 16 December 2022 and six hours on 17 December 2022 (being the two days Mr Al Khaldy stated he had attempted to continue working after 15 December 2022).
The next matter for consideration is whether Mr Al Khaldy was fit for suitable employment as defined in s 32A of the 1987 Act. This requires a consideration of the nature of the incapacity and the details provided in medical information, the worker’s age, education, skills and work experience, any return to work plan and any occupational rehabilitation services that have been provided, irrespective of whether the work is available to him or of a type or nature that is generally available in the employment market.
Mr Al Khaldy is a 50-year old man who was educated to the equivalent of year nine in Kuwait. After leaving high school, he worked as a carpenter for about 15 years and then raised and traded cattle for about three years. He arrived in Australia on a bridging visa in 2013. Since arriving in Australia he has worked in formwork for various companies on contract on full-time hours for periods of 10 to 14 days and he would then find the next contract. He referred to this as job hopping. He has a poor command of the English language and his evidence was that it was his poor English that very often resulted in him not being kept on by companies.
The only practical skills Mr Al Khaldy has are in carpentry and formwork. The nature of his duties with ES Formwork are set out in [28] above. It is apparent that such duties involve the kind of activities that Dr Kako and Dr Porteous stated Mr Al Khaldy is currently unable to do.
There have been no return to work plans or occupational rehabilitation services provided to Mr Al Khaldy. No work capacity assessments have been undertaken and consequently, no alternative forms of employment have been identified for Mr Al Khaldy.
Whilst Mr Al Khaldy may have been issued with certificates of capacity by Dr Hasam, they are not in evidence.
On 5 June 2023, Dr Yacoub issued Mr Al Khaldy with a certificate of capacity certifying him as having no current capacity for work from 6 June 2023 to 6 July 2023.
On 27 July 2023, Dr Kako issued Mr Al Khaldy with a certificate of capacity certifying him as having no current capacity for work from 6 July 2023 to 31 August 2023.
On 4 September 2023, Dr Yacoub issued Mr Al Khaldy with a certificate of capacity certifying him as having no current capacity for work from 31 August 2023 to 1 September 2023.
On 24 October 2023, Dr Kako opined that Mr Al Khaldy had no capacity for work due to pain, immobility and mental health deterioration. However, with successful pain specialist intervention, he may have a limited work capacity but this would depend on his mobility, level of pain and mental health.
On 20 October 2023, Dr Porteous opined that, at that time, considering Mr Al Khaldy’s substantial disability that he was reasonably off work. However, Dr Porteous observed that, with appropriate rehabilitation, it was more likely than not, given the history of the incident and the lack of major acute changes on medical imaging, there should be some recovery in the medium term.
Having regard to Mr Al Khaldy’s statement, the unchallenged medical evidence as to his capacity, his age, skills, work experience and the other relevant factors to be considered in accordance with s 32A of the 1987 Act, I am satisfied on the balance of probabilities that he has had no current work capacity from 18 December 2022 to date and ongoing. Noting that he worked a full day on 16 December 2022 and six hours on 17 December 2022 (being the two days Mr Al Khaldy stated he had attempted to continue working after 15 December 2022).
The parties were unable to agree on Mr Al Khaldy’s PIAWE. Clause 2 of Schedule 3 of the 1987 Act provides the meaning of PIAWE. PIAWE means the weekly average of the gross pre-injury earnings received by a worker for any employment in which the worker was engaged at the time of their injury. The relevant earning period is 52 weeks before the date of injury, unless adjusted in accordance with the Workers Compensation Regulation 2016.
The first issue for determination is the relevant earning period. There was little evidence provided by the parties in this regard.
There was a factual dispute as to when Mr Al Khaldy commenced his employment with ES Formwork. Mr Al Khaldy’s evidence was that he commenced employment with ES Formwork in May 2022 and worked exclusively for that organisation until a couple of days after his injury (the unsuccessful attempts to return to work). Mr Mavruk’s evidence was that Mr Al Khaldy commenced employment with ES Formwork on 24 October 2022.
There were no documents submitted by Mr Al Khaldy supporting his evidence that he commenced employment with ES Formwork in May 2022. If Mr Al Khaldy did keep any records of the days and hours he worked for ES Formwork from May 2022 to the date he ceased work, such records were not in evidence.
Mr Al Khaldy’s bank statements provided no assistance in this regard as his evidence was that he was paid in cash by Mr Mavruk each week and there were no regular cash deposits identified by him in his bank statements as deposits by him relating to payment for his work with ES Formwork. Mr Al Khaldy’s bank statements between 1 May 2022 and 26 December 2022 recorded the following deposits:[85]
[85] AALD dated 9 July 2024 at pages 10-18.
(a)    17 June 2022: transfer from Mohamad Farag described as a bill: $1,200;
(b)    25 June 2022: transfer from Mohamad Farag described as a bill: $300;
(c)    9 July 2022: Centrelink payment: $1,000;
(d)    12 August 2022: fast transfer from Abdullah Ali described as a gift: $200;
(e)    17 August 2022: fast transfer from SRT Formwork Pty Limited described as salary: $649.86;
(f)    18 September 2022: unidentified cash deposit: $150;
(g)    25 September 2022: unidentified cash deposit: $300;
(h)    28 September 2022: unidentified cash deposit: $100;
(i)    1 October 2022: unidentified cash deposit: $750;
(j)    9 October 2022: fast transfer from Leit Khala: $550;
(k)    22 October 2022: unidentified cash deposit: $500;
(l)    26 October 2022: unidentified cash deposit: $1,000;
(m)     29 October 2022: unidentified cash deposit: $250;
(n)    6 November 2022: unidentified cash deposit: $1,750;
(o)    13 November 2022: unidentified cash deposit: $40;
(p)    16 November 2022: fast transfer from SRT Formwork Pty Limited described as salary: $7.32;
(q)    19 November 2022: unidentified cash deposit: $150;
(r)    23 November 2022: unidentified cash deposit: $20;
(s)    13 December 2022: unidentified cash deposit: $165, and
(t)    26 December 2022: unidentified cash deposit: $165.
In 2023 and 2024, there were unidentified cash deposits of varying amounts and cash deposits identified as gifts.[86]
[86] AALD at pages 20-39.
The work related text messages put in evidence by Mr Al Khaldy between he and Mr Mavruk or someone on ES Formwork’s behalf bore the dates 19 October 2022, 11 November 2022, 17 November 2022, 18 November 2022, 22 November 2022, 24 November 2022, 28 November 2022, 30 November 2022, 1 December 2022, 2 December 2022, 10 December 2022, 11 December 2022, 14 December 2022 and 17 December 2022.[87]
[87] ARD at pages 48 and 73-91.
There were no such text messages for the period May to September 2022.
Mr Al Khaldy’s taxation and related documents may have assisted in identifying the relevant earning period but they were not produced. No explanation was provided for their
non-production. However, I draw no adverse inference in this regard and note that, according to his bank statements, Mr Al Khaldy received a taxation refund on 26 July 2021 in the sum of $3,296.
Mr Mavruk identified the dates, locations and hours worked in the schedule in his statement to the investigator engaged by EML as set out in [73] above. Mr Al Khaldy submitted that the Commission should simply accept his PIAWE calculation as $2,400 from 1 May 2022 to 15 December 2022. Such a calculation does not take into account days that he may not have worked because of weather conditions or for other reasons. Further, it assumes that I accept that he commenced working full-time for ES Formwork in May 2023.
I am not prepared to accept Mr Al Khaldy’s evidence that he worked for ES Formwork
full-time on an average of six days per week for 50 hours per week as stated in his claim forms and evidentiary statements from May 2022 until about 17 December 2022. The bank statements and the work related texts did not support his evidence in this regard. I find that Mr Al Khaldy worked for ES Formwork on a part-time basis as stated by Mr Mavruk.
There was no explanation provided on behalf of ES Formwork for the absence of business records in the form of pay slips or other documentation such as the daily sign-in book at the various worksites referred to by Mr Shahzuan verifying the days and hours worked by Mr Al Khaldy. Mr Al Khaldy did not submit any such documentation. On the balance of probabilities, the more likely scenario was that set out in the schedule produced by Mr Mavruk in his statement to the EML appointed investigator and summarised in [73] above. In the absence of any business records, I have adopted his schedule in calculating Mr Al Khaldy’s PIAWE below.
There was no dispute that Mr Al Khaldy was paid $400 per day in cash for his work with ES Formwork.
Accordingly, I calculate Mr Al Khaldy’s PIAWE on the basis of eight hours per day being a full day over an eight week period between 24 October 2022 to 15 December 2022 as follows:
week 1: 24 October 2022 to 30 October 2022: 6 days x $400 = $2,400
week 2: 31 October 2022 to 6 November 2022: 6 days x $400 = $2,400
week 3: 7 November 2022 to 13 November 2022: 6 days x $400 = $2,400
week 4: 14 November 2022 to 20 November 2022: 6 days x $400 = $2,400
week 5: 21 November 2022 to 27 November 2022: 1 day ($400) + 4 hours ($200) = $600
week 6: 28 November 2022 to 4 December 2022: 1 day ($400) + 4 hours ($200) = $600
week 7: 5 December 2022 to 11 December 2022: 0 days = $0
week 8: 12 December 2022 to 15 December 2022: 2 days x $400 = $800
PIAWE (total income over the period $11,600 ÷ 8 weeks) = $1,450.

Weekly benefits compensation during the initial aggregate period of 13 weeks (the first entitlement period) is governed by s 36 of the 1987 Act. Section 36(1) relevantly provides in Mr Al Khaldy’s case that the weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of his PIAWE.
In accordance with s 36(1) of the 1987 Act, Mr Al Khaldy’s entitlement to weekly benefits compensation during the first entitlement period from 16 December 2022 to 16 March 2023 (13 weeks) is as follows:
$1,450 = PIAWE; 95% x $1,450 = $1,377.50 per week.
The second entitlement period is that of 117 weeks, post-dating the initial 13 weeks. Weekly benefits compensation during the second entitlement period is governed by s 37 of the 1987 Act. Section 37(1) relevantly provides in Mr Al Khaldy’s case that the weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker's PIAWE.
In accordance with s 37(1) of the 1987 Act, Mr Al Khaldy’s entitlement to weekly compensation during the second entitlement period from 17 March 2023 and ongoing until they are suspended, varied or terminated under the provisions of the 1987 Act is as follows:
$1,450 = PIAWE; 80% x $1,450 = $1,160 per week.
Mr Al Khaldy will be entitled to an award in accordance with the above calculations and EML will need to make the appropriate indexation adjustments pursuant to s 82A of the 1987 Act in accordance with the formula and review dates stipulated therein.
The parties are granted liberty to apply within 14 days in relation to the calculation of weekly benefits compensation.

Entitlement to medical and related treatment expenses

Section 59 of the 1987 Act provides definitions of certain medical and related treatment, services and rehabilitation.
Section 60(1) of the 1987 Act relevantly provides that, if as a result of an injury received by a worker, it is reasonably necessary that any medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service be provided, then a worker’s employer is liable to pay the cost of such treatment or service. In addition, the employer is liable to pay the related travel expenses specified in s 60(2) of the 1987 Act.
On the evidence and having received an award in his favour, Mr Al Khaldy is entitled to recover the cost of reasonably necessary medical, hospital and related expenses under s 60 of the 1987 Act and I make a general order in this regard.

CONCLUSION

My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.

[2024] NSWPIC 557

2 October 2024