Al Naeemah v Action James NSW Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Al Naeemah v Action James NSW Pty Ltd [2024] NSWPIC 7
APPLICANT:	Salman Munshid Al Naeemah
RESPONDENT:	Action James NSW Pty Ltd
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	8 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits and medical expenses; respondent disputed injury occurred as alleged on basis of CCTV footage; respondent conceded injury to lumbar spine; disputed injury to cervical spine and left shoulder; Held – that applicant discharged the onus upon him to establish that he had sustained injuries to his cervical spine and left shoulder; award for applicant for weekly benefits and section 60 expenses.
DETERMINATIONS MADE:	The Commission determines: 1. Respondent to pay the applicant weekly benefits as follows: (a) $920.16 from 24 August 2022 to 30 September 2022 pursuant to s 37(1) of the Workers Compensation Act 1987 (1987 Act); (b) $951.17 from 1 October 2022 to 31 March 2023 pursuant to s 37(1) of the 1987 Act; (c) $990.55 from 1 April 2023 to 30 September 2023 pursuant to s 37(1) of the 1987 Act, (d) $1014.02 from 30 September 2023 to date and continuing pursuant to s 37(1) of the 1987 Act. (Respondent to have credit for any payments made in these periods.) 2. Respondent to pay the applicant’s s 60 expenses on production of accounts, receipts and/or Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Salman Munshid Al Naeemah (the applicant), was employed by Action James NSW Pty Ltd (the respondent), as a casual labourer.
The applicant alleged that he sustained injury to his cervical spine, left upper extremity and lumbar spine in the course of employment on 15 March 2022 when his foot got caught in a pallet and he fell.
The applicant made a claim for weekly benefits and medical treatment.
On 24 August 2022, the respondent issued a s 78 Notice disputing liability for the injury on 15 March 2022.
On 12 January 2023, the respondent issued a s 78 Notice disputing liability for any secondary psychological condition alleged to have developed as a result of the injury on 15 March 2022.
A review notice was issued by the respondent on 15 June 2023 maintaining the decision dated 12 January 2023.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Whether the applicant sustained an injury to his cervical spine, left upper extremity and lumbar spine arising out of or in the course of employment with the respondent pursuant to s 4 of the Workers Compensation Act 1987 (1987 Act).
(b)    Whether the applicant’s employment with the respondent was a substantial contributing factor to the injury to the lumbar spine pursuant to s 9A of the 1987 Act.
(c)    Whether the applicant had a secondary psychological condition as a result of the alleged injury on 15 March 2022.
(d)    Whether the applicant had an entitlement to weekly compensation due to partial or total incapacity for work from 24 August 2022 to date and continuing.
(e)    Whether the applicant was entitled to payment of medical expenses as a result of the injury on 15 March 2022.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conciliation conference and arbitration on 18 December 2023. The applicant was represented by Mr Matthew Eirth, who was instructed by Ms Khatri of Norwest Lawyers. The respondent was represented by Mr Paul Barnes, who was instructed by Mr Darren Russell of Rankin Ellison Lawyers. Ms Le Neve from GIO General Limited attended the conciliation conference and arbitration. An interpreter in the Arabic language attended the conciliation conference and arbitration on 18 December 2023.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents and items were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Application to Admit Late Documents and attached documents filed 6 November 2023, and
(c)    surveillance footage file that was filed in the Commission and a USB drive containing the Closed Circuit Television (CCTV) footage from the workplace on 15 March 2022 that was handed up during the arbitration.

Oral evidence

The respondent was given leave to cross examine the applicant at the beginning of the arbitration but withdrew that applicant after the parties entered into conciliation for a short period.

SUBMISSIONS

The submissions of the parties during the arbitration were recorded and I do not propose to repeat each of the arguments of counsel in these reasons.
However, the respondent submitted that there was no injury in the fall on 15 March 2022, other than to the coccyx, lumbar spine. left hip and left knee. The respondent argued that the applicant had provided a history of falling onto his neck and head to various doctors when it was evident from the CCTV footage that there had been no impact with the head or with the neck, and this raised issues as to the applicant’s credit.
The applicant submitted that the CCTV footage showed that the applicant suffered a significant twisting injury and that he had felt pain in his neck and head even if there had been no direct impact to the neck and head in the fall.

FINDINGS AND REASONS

At the commencement of the arbitration the parties agreed that pre-injury average weekly earnings (PIAWE) was $1,150.20 with 80% of PIAWE being $920.16 and 95% of PIAWE being $1092.69.

Evidence of Salman Munshid Al Naeemah

In a statement dated 5 October 2023, the applicant said that he started employment with the respondent on about 28 February 2022 which involved working at DHL warehouse in Erskine Park loading and unloading boxes from a forklift, carrying boxes and preparing orders.
The applicant wrote:
“16. On 15 March 2022 I was required to prepare an order by moving boxes of battery when my foot got stuck in a wooden pallet causing me to fall.
17. The manager from the DHL warehouse called an ambulance for me and filled out an injury form.
18. I was taken by ambulance to Fairfield Hospital. I was required to stay overnight at the hospital and they completed scans before discharging me the next day.”
The applicant stated that he had to stop medical treatment as he could not afford to continue treatments since the insurer rejected his claim.
In the Worker’s injury claim form dated 28 April 2022, the applicant stated that he was asked to move boxes of batteries to prepare an order. He wrote: “My foot got stuck in a wooden pallet causing me to fall.” He stated that he injured his neck, left shoulder, right elbow, left wrist, back, left hip and left knee.

CCTV footage

The parties watched the footage on the USB drive in conciliation. Following that, the applicant conceded that he did not impact his head or neck in the fall on 15 March 2022. The respondent conceded that the applicant had impacted his back, left hip and left knee in the fall.
The surveillance DVD filed in the Commission was of a poor quality and the copy on the USB drive provided by the respondent during the arbitration was much clearer. From watching the footage on the USB drive both in normal time and then slowed to frame by frames, the following was observed:
(a)    the applicant’s right foot was behind the corner of a loaded pallet from which he had picked up multiple boxes;
(b)    the applicant held the boxes to his upper body with both hands;
(c)    the right foot appeared to be caught under the corner of the loaded pallet, from which he had picked up the boxes, and as the applicant stepped out with his left leg, the left foot continued to slip forward toward the empty pallet so that he was in a lunging position with the right foot still under the edge of the loaded pallet; he was still carrying the boxes with both hands at this stage;
(d)    the applicant’s left foot slid forward to the edge or under the empty pallet; the applicant was still carrying the boxes with both hands;
(e)    the applicant’s left knee which is bent and/or his shin came into contact with the empty pallet;
(f)    as the applicant’s left knee or shin comes into contact with the empty pallet his right foot becomes free and moves forward and the applicant falls to the left, overbalancing, but still holding the boxes to his upper body;
(g)    as the applicant falls, twisting his body, he drops the boxes and his left arm extends to the side and behind him to contact the empty pallet;
(h)    the applicant falls back on the empty pallet with his low back hitting the pallet;
(i)    the applicant’s head and neck did not make contact with the pallet;
(j)     the applicant appeared to have no control over the speed or manner of the fall;
(k)    the applicant moves off the pallet to sit on the concrete floor after the fall, and
(l)    the fall happened very quickly.

Medical evidence

Medico‑legal reports

In a report dated 21 November 2022, Associate Professor Nigel Hope, orthopaedic surgeon, noted that the applicant had no symptomatic pre-existing pathology in any body part. Associate Professor Hope stated that on 15 March 2022, a well described and video documented fall on the back caused cervical, left shoulder, lumbar spine, right elbow, left wrist, left hip and left knee pain. Associate Professor Hope wrote: “Fortunately, the right elbow, left wrist, left hip and left knee conditions have recovered. However, symptoms continue in the cervical spine, left shoulder and lumbar spine.”
Associate Professor Hope noted that eight months after the injury, there was cervical, left shoulder and lumbar pain with stiffness and weakness causing a moderate functional loss. He stated that the examination showed findings which could not be faked including cervical paraspinal spasm, left shoulder impingement signs and lumbar paraspinal spasm. He noted that the MRI shows cervical spondylosis, left shoulder rotator cuff tear and lumbosacral discopathy.
Associate Professor Hope made a diagnosis of a permanent aggravation of cervical spondylosis, left shoulder rotator cuff tear and a lumbar discopathy. He noted that further treatment was required.
Associate Professor Hope referred to MRI scans on 6 April 2022 of the cervical spine, left shoulder and lumbar spine.
Under “Fitness for duty”, Associate Professor Hope noted that pre-injury duties were permanently inappropriate. He wrote:” Currently, this gentleman is unemployable due to his inability to sit or stand for any useful period and inability to lift any useful weight”.
Associate Professor Hope considered that there was no evidence of exaggeration, symptom fabrication or functional overlay. He noted that the history, symptoms, signs and investigations were all consistent. He wrote:
“The CCTV footage is entirely consistent with the version of events. At 2 minutes and 40 seconds, the worker was seen to fall rapidly backwards into the left onto a concrete fall which is entirely consistent with the described injury”. [sic]
Associate Professor Hope considered how the injuries impact the applicant's ability to work and wrote:
“There is a severe described loss of function with a sitting limit of 10 minutes, standing limit of 10 minutes, an inability to bend to access the ground level and a lifting limit of 2 kg.
b. Whether the worker has the capacity for work, and if so, what restrictions may have to be placed on the worker due to the workplace injuries; There is no capacity to work.”
Associate Professor Hope recommended reassessment of work capacity in three months. He recommended treatment including physiotherapy, hydrotherapy and reassessment by treating general practitioner (GP).
Associate Professor Hope was asked to respond to the report of Dr Bruce, who had indicated that "there is no evidence of there being a significant physical injury". He wrote:
“However, the injury footage at 2 minutes and 40 seconds clearly shows the worker falling backwards forcefully into the left onto a concrete floor. This is entirely consistent with the injury seen today.
In addition, examination findings were observed which cannot be faked including cervical paraspinal spasm, left shoulder impingement signs and lumbar paraspinal spasm”.
In a report dated 15 July 2022, Dr Gregor Bruce, orthopaedic surgeon, noted that the applicant described in considerable detail the specific aspects of the fall on 15 March 2022. He wrote:
“(CCTV footage of the incident was available for me to review and his description was compared with the information on CCTV. The relevant CCTV information is placed in brackets after Mr Al Naeemah's description of the specific details of his fall.)
He states that he was taking batteries from a loaded pallet and placing them on an empty pallet.
He states that he lifted about five packets of small batteries and was carrying them to the empty pallet.
(This is consistent with the CCTV findings. He can be seen lifting packages from a loaded pallet onto another pallet.)
He states that his left foot was caught under the loaded pallet and suffered a twisting injury as he turned to the unloaded pallet. He claims he caught left foot caused him to fall.
(The CCTV footage shows that his left foot was a long way from the pallet and is halfway between the full pallet and the empty pallet. There is no evidence that the left foot was trapped or twisted. His right foot was the closest to the loaded pallet but it was clear of the pallet and there was no evidence of it being trapped.)
He states that he fell and his coccygeal region fell directly on the comer of the pallet. He was very specific that he sat hard on the edge of the pallet at a comer of two sides. He emphasised that the sharp edge caused a severe impact injury that has caused his coccygeal pain. The word ‘coccygeal’ was used by the interpreter to explain the Arabic equivalent.
(The CCTV footage shows that he slowly settled onto the pallet in a very controlled manner and his buttocks and coccygeal region made gentle contact in the middle of the pallet, well clear of the edge of the pallet or a comer.)
He states that he had the pack of batteries on his chest and as he fell he was thrown backwards and the batteries were thrust onto his chest and caused a compression injury to his chest and abdomen that caused him to vomit.
(The CCTV footage shows that he had thrown the package of batteries to his left well before he landed on the pallet. He threw the packaging as soon as he started his downward descent. The packaging was not on his body at the time of the impact on the empty pallet.
It fell to his left and did not contact his chest or abdomen.)
He states that he was thrown backwards and his left shoulder and the left side of his neck also struck the edge of the pallet. He was very specific that his bottom was on the edge and comer of the pallet and he was thrown backwards by the impact so that his neck and left shoulder directly struck the opposite edge and corner of the pallet.
(The CCTV footage shows that he landed in a sitting position in the middle of the pallet and remained in a sitting position. The images do not show his head being thrown backwards and striking the pallet. There is no sign of his shoulder or neck hitting the opposite edge or corner of the pallet.)
He claims that his head was thrown backwards as he fell and the back of his head struck the pallet. This caused him to be dizzy and confused but not sufficiently for him to be unable to describe the incident in great detail.
(The CCTV footage does not show his head striking the pallet. He landed in a sitting position with complete control of his upper body. He remained sitting and there was no impact between his head, neck or left shoulder on the pallet.)
In summary, the CCTV footage shows substantial inconsistencies between his description of the ‘fall’ and the CCTV images”.
Dr Bruce considered that the applicant’s description of the mechanism of injury was inconsistent with the CCTV footage which showed the left foot is well clear of the pallet, and the applicant landing in a comfortable sitting position in the middle of the pallet and there was no impact to his head, neck or shoulder.
On examination, Dr Bruce considered that the physical signs were inconsistent, and the applicant emphasised the severity of his symptoms to the level of exaggerating. Dr Bruce considered that there was deliberate restriction of active movement when being examined.
Dr Bruce noted that there were no X-rays of other images available for review. He formed the view that there was no clear criteria for a diagnosis and the applicant had non-specific aches and pains with no established pathology. Dr Bruce wrote:
“There is no evidence that there has been a significant physical injury. The CCTV footage does not show a significant level of trauma. At best it may have caused a minimal soft tissue strain that would have resolved within a maximum of three to four weeks. There was no evidence of an injury that has caused widespread prolonged symptoms for four months and continuing unchanged as Mr Al Naeemah claims”.
Dr Bruce then wrote:
“The trauma that occurred at the time of the incident was minimal and may have caused very minor soft tissue symptoms. These would have been temporary and short-lasting. The symptoms would have settled within three to four weeks. Any ongoing symptoms are not related to the workplace incident. Any aggravation would have settled within four to six weeks. It seems unlikely that there was any musculo-skeletal injury that occurred at the time of his very gentle settle onto the pallet”.
Dr Bruce considered that any continuing symptoms were not related to the work incident. He was of the view that there was no reason why the applicant was unable to carry out normal work duties and hours.
Dr Peter Young, consultant psychiatrist, in a report dated 6 December 2022 noted that the applicant said that he had tripped on a pallet and fell while carrying a box of batteries, striking the side of his body, and hitting his head on the concrete floor, with several heavy batteries falling onto his body. Dr Young noted that the applicant reported having experienced physical injuries, due to an accidental fall at work that have resulted in ongoing pain and associated psychological symptoms. Dr Young noted that previous orthopaedic reports indicated there was no physical abnormality demonstrated, and the applicant’s history in relation to the circumstances of the injury was inconsistent with the video evidence.
Dr Young found that the history of symptoms as described by the applicant met the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM) criteria for the diagnosis of Somatic Symptom Disorder and the secondary psychological symptoms relating to perceived physical injuries should be considered as secondary rather than the alternative as Adjustment Disorder. Dr Young noted that the differential diagnostic consideration was Factitious Disorder or Malingering. He expressed the opinion that given the medico-legal context, lack of objective evidence of injury and the marked inconsistency between the incident as described by applicant and the objective video evidence malingering should be considered as likely.
Dr Young concluded that there was no injury. He wrote: “Taken at face value he is incapacitated for work. However, his condition is not compensable” He considered that it was likely that the reported symptoms are due to secondary gains associated with the current claim.
Dr Young wrote: “Taken at face value Mr Al Naeemah may be considered to have an adjustment disorder, however in this case his psychological symptoms are secondary to somatic symptom disorder which is the primary diagnosis”.

Reports of treating doctors and health professionals

In the ED Discharge Summary from Fairfield Hospital in respect of an attendance on 15 March 2022, the following was noted:
“38M BIBA to FFH ED following a fall at work, complaining of sacral and thoracic back pain
Patient was picking up 5 boxes of batteries from a pallet, where his foot became stuck in the wooden pallet and he twisted, falling onto his buttocks and dropping the boxes onto his upper body
Patient states he fell buttock first and then onto his lower back and neck
Felt that he hit the inferior occipital region of his head
NilLOC
2x vomits not witnessed by ambulance.”
The applicant underwent X-ray of the lumbosacral spine. Panadeine forte was prescribed with follow up with GP within a week. Dr Walker issued a medical certificate certifying the applicant unfit for work until 20 March 2022.
In a report dated 24 March 2022, Dr Eric Lim, treating GP, made a diagnosis of a cervical spine strain; L) shoulder strain; R) elbow strain; L) wrist strain; Lumbar spine strain; L) hip, L) knee strain. Dr Lim reported the history of injury as follows:
“Neck/shoulder /wrist/back and knee injuries after his R) [sic] foot got caught into a wooden pallet causing him to twist and fall at DHL Erskine Park.
He was picking up boxes of batteries when his R) foot was caught in a wooden pallet causing him to twist and fall backwards. He hit his head and denies losing consciousness. He felt nauseous and vomited twice. He was taken to Fairfield Hospital by the ambulance. He has not returned to work since”.
Dr Lim noted restriction in cervical and lumbar flexion and extension. He recommended physiotherapy, review by a spinal surgeon, review by an orthopaedic surgeon and referral for MRI scans of the cervical spine and lumbar spine. Dr Lim concluded:
“He sustained Neck/shoulder/wrist/back and knee injuries after his R) foot got caught into a wooden pallet causing him to twist and fall. Work was the main contributing factor for the injury.
Prognosis/ Specific Issues
He experiences neck/shoulder/wrist/lower back and knee injuries which impairs his physical capacity for work.”
Dr Peter Khong, neurosurgeon and spinal surgeon, in a report dated 29 June 2022, noted that the applicant was injured when he was carrying a load of batteries, his foot was trapped and he fell onto his right side and back onto a pallet. Dr Khong noted the applicant experienced left sided neck, shoulder and arm pain, pain throughout his spine, left knee pain and left ankle pain. Dr Khong reported: “Hit head as well, constant headaches”.
Dr Khong noted that the MRI of the cervical spine on 6 February 2022 showed: “Some straightening of cervical lordosis. Preservation of disc space height and hydration. No cord compression. Some mild foraminal stenosis bilaterally aytC3/4”. The MRI of the lumbar spine on 6 February 2022 showed: “Preservation of disc space height and hydration. No neural compression”.
Dr Khong made a diagnosis of neck pain and lower back pain due to musculoligamentous strain and some exacerbation of pre-existing degenerative changes. He recommended non-operative management with physiotherapy and hydrotherapy.
In a report dated 19 August 2022, Dr Khong made a diagnosis of neck pain and lower back pain due to musculoligamentous strain and some exacerbation of pre-existing degenerative changes. He noted that the applicant continued to complain of left sohulder pain, pain along his whole spine and coccygeal pain.
In a report dated 14 October 2022, Dr Khong noted that the applicant continued to complain of neck pain, left shoulder pain and coccygeal pain.
In a report of an MRI scan of the cervical spine dated 6 April 2022, Dr Seruga, radiologist, noted a history of neck pain after a fall at work. He commented: “No traumatic injury detected. Mild multi-level cervical spondylosis, with mild bilateral foraminal stenosis at C3/4”.
In a report of an MRI scan of the lumbar spine dated 6 April 2022, Dr Seruga noted a history of lower back pain after fall at work. He commented: “No traumatic injury detected. No lumbar canal or foraminal stenosis”.
In a report of an MRI scan of the left shoulder dated 7 May 2022, Dr Seruga noted a history of left shoulder pain with restricted movement and weakness after fall at work. He commented:
“1. Mild supraspinatus and infraspinatus tendinopathy with bursal surface fraying and small low grade partial thickness intrasubstance tear.
2. Mild subacromial subdeltoid bursitis”.
In a report dated 14 June 2022, Mr Carl Nielsen, treating psychologist, noted that the applicant had explained that he was picking up boxes of batteries when his right foot got caught in a wooden pallet causing his body to twist and fall backwards. The applicant told Mr Nielsen that his head struck the ground and he experienced nausea as well as having vomited twice.
Mr Nielsen noted that as a result of his work related injury as well as the functional incapacities caused by the injury, the applicant noted a deterioration in his mental state characterized by avoidance, irritability, sleep disturbance, low mood, anxious and depressive cognitions, avoidance, poor concentration, feelings of helplessness and hopelessness. He noted that the applicant was unfit for work duties and made a diagnosis of an Adjustment Disorder with Depressed and Anxious Mood. Mr Nielsen recommended treatment involving Cognitive and Behavioral Therapy, Motivational Interviewing and Treatment rationale. Mr Nielsen concluded that the applicant had sustained Adjustment Disorder as a result of his work related injury.
The clinical notes from Workers Doctors, contained the following entry on 8 April 2022 by Dr Calvache-R, who reported:
“Neck/shoulder/wrist/back and knee injuries after his R) foot got caught into a wooden pallet causing him to twist and fall at DHL Erskine Park.
fell off and landed on back and neck.”
Various Certificates of Capacity were issued by Dr Lim and Dr Calvache-R in which the applicant was certified as having no current work capacity for any work from 24 March 2022 through to 5 January 2023.

Did the applicant sustain injury to the cervical spine and left shoulder that arose out of or in the course of his employment?

The first issue to determine is whether the applicant suffered a personal injury to the cervical spine and left upper extremity (shoulder) that arose out of or in the course of his employment with the respondent.
Section 4 of the 1987 Act defines injury as follows:
“Injury-
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
The onus is on the applicant to establish that he suffered an injury arising out of or in the course of employment with the respondent.
The respondent conceded that the applicant sustained injuries to his coccyx, lumbar spine, left knee and left hip. The respondent disputed that the applicant injured his cervical spine and left shoulder in the fall on 15 March 2022.
While the applicant conceded that he did not hit his neck or head in the fall on 15 March 2022, it is, of course, possible to sustain an injury without direct impact of the body part in question.
The applicant gave evidence that his foot got stuck in a wooden pallet causing him to fall. He did not specify in his statement or in the Workers injury claim form or the history given at Fairfield Hospital which foot was caught. The applicant told Dr Bruce that he caught his left foot under the pallet whereas he told Dr Lim, Dr Calvache-R and Mr Nielsen that he had caught this right foot under the pallet.
Dr Bruce compared in detail the history provided by the applicant at the examination to what Dr Bruce said he had observed on the CCTV footage. Dr Bruce noted that the applicant stated he had caught his left foot under the loaded pallet which caused him to fall and suffer a twisting injury as he turned to the unloaded pallet. Dr Bruce noted that the CCTV footage shows that his left foot was a long way from the pallet and halfway between the full pallet and the empty pallet. Dr Bruce considered that there was there is no evidence that the left foot was trapped or twisted, and the right foot was the closest to the loaded pallet but was clear of the pallet. It appears clear that the applicant confused his left foot with his right when providing this history to Dr Bruce. I disagree with Dr Bruce’s version of what can be seen on the CCTV footage in this part of the footage. I am satisfied that the applicant’s right foot was caught under the loaded pallet and he stepped out with his left foot, which moved right to the edge of the empty pallet. The left foot moved much further than halfway between the full pallet and the empty pallet. In so far as the respondent conceded that there had been an injury to the left knee, the respondent did not accept this account by Dr Bruce of what was on the CCTV footage.
The next part of the history given by the applicant to Dr Bruce was that his coccygeal region fell directly on the corner of the pallet with the sharp edge causing a severe impact injury. Dr Bruce noted that the CCTV footage showed that the applicant slowly settled onto the pallet in a very controlled manner and his buttocks and coccygeal region made gentle contact in the middle of the pallet, well clear of the edge of the pallet or a corner. I disagree with Dr Bruce’s version of what was visible on the CCTV footage in this part of the footage. I am satisfied that the applicant fell with some considerable force onto the empty (and low) pallet with his buttocks and low back impacting the pallet. I particularly disagree with Dr Bruce’s statement that the applicant slowly settled onto the pallet in a very controlled manner and his buttocks and coccygeal region made gentle contact in the middle of the pallet. The applicant had no control over his descent once he overbalanced and started falling and there was considerable force in his impact with the pallet. This impact could not be described as “gentle contact”. It was difficult to see if the applicant’s coccygeal region made impact with the corner of the pallet, but I do not regard that as particularly significant.
Dr Bruce then noted that the applicant said that he had the pack of batteries on his chest and as he fell, he was thrown backwards, and the batteries were thrust onto his chest causing a compression injury to his chest and abdomen resulting in him vomiting. Dr Bruce noted that the CCTV footage showed that he had thrown the package of batteries to his left well before he landed on the pallet and as soon as he started his downward descent. Dr Bruce said that the package fell to his left and did not contact his chest or abdomen. I do not think that Dr Bruce’s version of what was seen on the CCTV footage in this part of the footage properly reflected what took place. Firstly, the applicant was carrying a number of boxes of batteries and as he moved, he held those boxes to his torso with both hands. I am satisfied that the applicant was still holding the boxes as he fell to the left, overbalancing, and then he dropped the boxes as his body twisted to the left and his left arm extended behind him to break the fall.
Dr Bruce noted that the applicant stated that he was thrown backwards and his left shoulder and the left side of his neck and head struck the edge of the pallet. I agree with Dr Bruce that the CCTV footage did not show his head striking the pallet or his neck or his shoulder hitting the pallet. However, Dr Bruce failed to note that the applicant’s his left arm extended behind him to break the fall.
Dr Bruce concluded that the CCTV footage shows substantial inconsistencies between the applicant’s description of the fall and the CCTV footage. However, I consider that Dr Bruce’s account in part of what happened in the fall was inconsistent with what was actually shown in the CCTV footage.
Dr Bruce noted that there were no X-rays of other images available for review. Dr Bruce wrote:
“There is no evidence that there has been a significant physical injury. The CCTV footage does not show a significant level of trauma. At best it may have caused a minimal soft tissue strain that would have resolved within a maximum of three to four weeks. There was no evidence of an injury that has caused widespread prolonged symptoms for four months and continuing unchanged as Mr Al Naeemah claims”.
Associate Professor Hope considered that there was no evidence of exaggeration, symptom fabrication or functional overlay. He noted that the history, symptoms, signs and investigations were all consistent. He considered that the CCTV footage was entirely consistent with the version of events and stated “…the worker was seen to fall rapidly backwards into the left onto a concrete fall [sic] which is entirely consistent with the described injury”.
I accept that the applicant fell back onto the low and empty pallet and not onto the concrete floor. The appellant did move later to sit on the concrete floor. In the CCTV footage the empty pallet onto which the applicant fell was a grey colour, similar to that of the floor, and not a brown colour like the other pallets. It is possible that Associate Professor Hope mistook the pallet for the floor because of its colour. In any event, I did not consider that this detail was particularly significant as the appellant still fell a long way onto the empty pallet. The pallet was a hard surface. I considered that the speed of the fall and the impact to be more significant than whether he actually fell onto the pallet or the floor.
Associate Professor Hope made a diagnosis of a permanent aggravation of cervical spondylosis, left shoulder rotator cuff tear and a lumbar discopathy. He noted that further treatment was required. He referred to MRI scans on 6 April 2022 of the cervical spine, left shoulder and lumbar spine.
Associate Professor Hope was asked to respond to the report of Dr Bruce, who had indicated that "there is no evidence of there being a significant physical injury". He wrote:
“However, the injury footage at 2 minutes and 40 seconds clearly shows the worker falling backwards forcefully into the left onto a concrete floor. This is entirely consistent with the injury seen today.
In addition, examination findings were observed which cannot be faked including cervical paraspinal spasm, left shoulder impingement signs and lumbar paraspinal spasm”.
The CCTV footage, in my view, showed that the applicant’s right foot was caught on a loaded pallet from which he had picked up a number of boxes and that the catching of the right foot caused him to lunge forward on his left leg and overbalance. The applicant then fell forward but his body twisted as he fell to the left causing him to land on his low back.
Having observed the CCTV footage very carefully and frame by frame, I was satisfied that there was direct impact in the fall between the low back, coccyx, left hip, left knee or shin, and left hand. I am satisfied that the applicant placed his left arm behind him so that the left hand contacted the pallet. His left arm was extended so that the impact of hitting the pallet with the left hand would have affected the upper left extremity. The fall itself involved a 180 degree rotation of the body at speed. I accept that the applicant is a large man and his size would have contributed to the forces experienced in the fall.
The respondent raised issues concerning the applicant’s credit based on inconsistencies in the histories given to doctors and particularly his reporting of hitting his head and hitting his neck in the fall. In terms of the applicant reporting which foot he had caught, I accept that he was not an accurate historian although that may, in part, be due to the fact that English was a second language for him as he was born in Iraq and had only been in Australia for about 11 years. He requires the services of an interpreter and it appeared that no interpreter was available at Fairfield Hospital. It was unclear as to whether he had the services of an interpreter when he attended the general practitioners. In any event, the CCTV footage showed clearly, in my view, that he caught his right foot and then overbalanced.
The respondent argued that applicant had stated on a number of occasions that he struck his neck or struck his neck and head. The applicant’s statement, while referring to symptoms and pain in the neck and left shoulder, merely referred to catching his foot and falling. No reference was made to him striking his head, neck or left shoulder. The Worker’s Injury Claim form signed by the applicant on 28 April 2022 again referred to his foot getting stuck in a pallet and falling. Although in that form the applicant stated that he suffered injuries to his neck, left shoulder, right elbow, left wrist, back, left hip and left knee, he did not state that he had impacted his head, neck or left shoulder in the fall.
The inconsistencies arose when the applicant provided histories to doctors. As noted above, he may have lacked the service of an interpreter on some of those occasions. In other cases, where, an interpreter was used for the examination, it was possible that the applicant got confused. There was also reference in the clinical notes dated 15 June 2022 by Mr Nielsen to the applicant having significant problems with memory and concentration. However, because of the availability of the CCTV footage, any mistake in the history can be taken into account when considering the mechanics of the fall.
It was also unclear as to what version of the CCTV footage was sent to the doctors. The CCTV film filed in the Commission were not very clear. It was also necessary to view the footage in real times as well as frame by frame so that it was possible to look carefully at the mechanics of the fall.
From viewing the CCTV footage, it was clear that the empty pallet was very low and I am satisfied that the impact of falling on to the pallet would have been significant. I do not accept Dr Bruce’s opinion that the fall was a “controlled descent”. Not only was the fall uncontrolled but the applicant twisted a hundred and eight degrees as he fell which did not indicate in my view that it was a controlled descent. Taking into account Dr Bruce’s opinion, with which I disagree, that it was a “controlled descent” and that “applicant slowly settled onto the pallet in a very controlled manner”, and a number of his observations concerning the CCTV footage, which are incorrect, I am unable to place any real weight on his conclusions concerning causation and injury.
The respondent argued that the applicant was malingering or exaggerating his injuries, but the evidence from him and Associate Professor Hope concerning his recovery from a number of injuries was inconsistent with malingering or exaggeration. Associate Professor Hope noted that the right elbow, left wrist, left hip and left knee conditions had recovered and that symptoms continued only in the cervical spine, left shoulder and lumbar spine. On balance, the differences in the histories provided by the applicant to the doctors and as set out in his statement and the Worker’s Injury Claim form were not in my view issues that impacted materially on the applicant’s credit.
I am satisfied on balance that the applicant was working on loading boxes of batteries onto pallets and had lifted a number of boxes to move then to another pallet when his right foot caught and he overbalanced, and fell heavily onto an empty pallet is such a manner that his body was twisted around to the left and he used his left arm to support his body as he fell.. As a result of that fall, I am satisfied that the applicant sustained an injury to his lumbar spine, left shoulder and cervical spine. I accept the evidence given by the applicant in his statement in relation to the events on 15 March 2022 in so far as it is consistent with the CCTV footage. I find that the applicant did not hit his head or neck against the pallet in the fall, however, his body was subjected to considerable force in the twisting of his torso as he fell and he complained of pain in the cervical spine at Fairfield Hospital and told staff that he had “felt” that he had hit his head. He had complained of pain in the cervical spine consistently since the fall on 15 March 2022 and I am satisfied that he sustained injury to the cervical spine in the fall even though there was no contact with his neck as he fell. In relation to the left shoulder, I am satisfied that by extending his left arm out to break his fall, he sustained an injury to the left shoulder.

I find that the applicant sustained injuries to his lumbar spine, left shoulder and cervical spine on 15 March 2022 that arose out of and was in the course of his employment.

Substantial contributing factor

The next issue to be determined is whether the applicant’s employment was a substantial contributing factor to his injury to the lumbar spine, within s 9A of the 1987 Act.
In Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324, a Full Bench of the NSW Court of Appeal considered the provisions of s 9A of the 1987 Act. Mercer v ANZ Banking Group [2000] NSWCA 138 was not followed. Allsop P, Beazley and McColl JJA (Handley AJA dissenting) held that the phrase “substantial contributing factor” in s 9A involved a causative element and said:
“81. Causation is a fact-laden conclusion which the courts have been told must be based on common sense: March v Stramare (E & MH) Pty Limited [1991] HCA 12; 171 CLR 506; and Nunan. It is not possible and indeed would be incorrect, therefore, to lay down a principle which can be applied unbendingly to all cases. Nonetheless, we consider the following observations should be made.
82. First, and perhaps most importantly, the word ‘substantial’, must be given effect. It is a word of ordinary English meaning. It is a word of evaluative concept. The word substantial has been said to be not only susceptible of ambiguity, but also to be a word calculated to conceal a lack of precision. Which of the various possible shades of meaning the word bears is determined by the context: Ice TV Pty Limited v Nine Network Australia Pty Limited [2009] HCA14;83 ALJR 585 at at 617 per Gummow, Hayne and Heydon JJ. Here, the concept and purpose of the introduction of s 9A was to remove the possibility of compensation for injury with only a ‘remote or tenuous connection with work’. This was the purpose of the amendment: see the Second Reading Speech at [34] above. We would endorse the separate comments of Meagher JA and Davies AJA in Dayton v Coles Supermarket. As Meagher JA said, something which is minor is not substantial, or, as Davies AJA said, ‘substantial’ as it appears in s 9A means ‘in a manner that is real and of substance’ and does not apply where, as a matter of practical reality, the contribution of the employment to the injury was of, or had, ‘little substance’. We agree with his Honour that it is not useful to search for or use other terms, such as ‘large’, or ‘weighty’, or by way of further example, other concepts such as ‘predominant’. We consider that to do so may carry the vice of introducing concepts with different nuances from the words used by the legislature and which would take the meaning of the word beyond that needed to fulfil the purpose of the provision in its legislative context. In this respect, we prefer the views of Davies AJA in Dayton to the views in the extempore judgment in Bulga, which did not refer to Dayton and to the views of Mason P in Mercer. The words of the statute should be adhered to: ‘a substantial contributing factor’. The ‘proper link’ in the legislative context was a causal connection expressed by the words ‘a substantial contributing factor’, meaning one that was real and of substance. Given the conflict in the existing authority (Mercer, Bulga and Dayton), we think it important to clarify this issue.”
Allsop P, Beazley JA and McColl JA (Handley AJA dissenting) held that in determining whether a worker’s employment was a substantial contributing factor the matters specified in s 9A(2) must be taken into account to the extent that they are relevant. Their Honours considered that s 9A(2)(b) directed attention to the nature of the work performed and the particular tasks of that work and not to what the employee was doing at the actual time of the injury.
Basten JA concurred with the decision of the majority, considering that the causal test imposed by s 9A was more stringent than that imposed by s 4. He commented that if the conduct out of which the injury arose occurred in the course of employment and was the effective cause of the injury, absent misconduct on the part of the employee, the only conclusion reasonably open is that the employment was a substantial contributing factor to the injury. Basten JA said:
“Given that s 9A imposes a limitation upon an entitlement arising under s 9(1), which provision picks up the term ‘injury’ as defined in s 4, the phrase ‘employment concerned’ should be understood as a reference to the ‘employment’ identified in s 4 out of which the injury arose or in the course of which the injury occurred.”
Considering the terms of s 9A(2) of the 1987 Act, I make the following observations and findings:
(a)    “the time and place of injury”: the injury occurred during the applicant’s work with the respondent. I am satisfied that the injury to the cervical spine and left shoulder was referrable to his employment with the respondent. The contribution of the applicant’s employment with the respondent was real and of substance and there was both a temporal and causal connection between the onset of his symptoms in his cervical spine, lumbar spine and left shoulder and his work.
(b)    “the nature of the work performed and the particular tasks of that work”: I am satisfied on balance that the applicant was lifting boxes of batteries from a pallet when his right foot caught under the edge of the pallet and he fell twisting to the left onto an empty pallet. It was the activity of moving the boxes of batteries resulted in the injury to his cervical spine, lumbar spine and left shoulder.
(c)    “the duration of the employment”: the applicant had been employed by the respondent since 28 February 2022, however, the duration of employment is not a significant consideration in this matter.
(d)    “the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment”: the respondent did not really argue that the injury to the cervical spine, lumbar spine and left shoulder would have happened anyway at the same stage of applicant’s life. I am satisfied on balance that there was no significant probability that the injury to the cervical spine, lumbar spine and left shoulder would have happened anyway at the same stage of applicant’s life if he had not been engaged by the respondent and fallen in the incident on 15 March 2022.
(e)    “the worker’s state of health before the injury and the existence of any hereditary risks”: the worker commenced employment with the respondent in August 2019. Although he was a heavy man and there was some evidence of having a degenerative condition in the cervical spine, he was asymptomatic at the time of injury. I am satisfied that it was the fall on 15 March 2022 that was the real cause of the injury to the cervical spine, lumbar spine and left shoulder.
(f)    “the worker’s lifestyle and his or her activities outside the workplace”: there are, in my view, no significant lifestyle matters relevant in this claim. There was no medical or other evidence that identified any significant lifestyle matter or activity relevant in this claim.
On the facts of this matter and on consideration of the relevant authorities cited, I find that the injury to the applicant arose out of and in the course of employment and that there was a causal relationship between the injury and the work that he was required to do, that is, there was a causal connection with his employment. I am satisfied that his employment was a substantial contributing factor within the meaning of s 9A of the 1987 Act.

Claim for weekly benefits

The parties reached an agreement that PIAWE was $1,150.20.75 and that 95% of PIAWE was $1,092.69 and 80% PIAWE was $920.16.
The appellant made a claim for weekly benefits as follows:
(a)    $920.16 pursuant to s 37 from 24 August 2022 to 30 September 2022 with ability to earn/current weekly earnings being $0;
(b)    $951.17 pursuant to s 37 from 1 October 2022 to 31 March 2023 with ability to earn/current weekly earnings being $0;
(c)    $990.55 pursuant to s 37 from 1 April 2023 to 30 September 2023 with ability to earn/current weekly earnings being $0, and
(d)    $1,014.02 pursuant to s 37 from 30 September 2023 to date and continuing with ability to earn/current weekly earnings being $0.
Assessment of the appellant’s capacity for work since 24 August 2022 requires consideration as to whether he has “a current work capacity” or has “no current capacity” as defined by in Schedule 3 of the 1987 Act:
“(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.”
Suitable employment’ is relevantly defined in s 32A of the 1987 Act:
“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 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 or residence.”
Section 33 provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.”
The assessment of whether there is a current work capacity or no current work capacity must be made before proceeding to do a determination under s 36 and s 37 of the 1987 Act (Deputy President Roche in Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar) at [49]). At [66]-[67] Deputy President Roche said:
“If there is a current work capacity, that is relevant to calculating ‘E’ (the amount to be taken into account as the worker’s earnings after the injury, where the worker is not employed), which is then used in the equations in ss 36(2) and 37(2) and (3). If there is no current work, one looks to s 36(1) or s 37(1), depending on whether the claim is in the first or second entitlement period.
Thus, the words ‘the amount the worker is able to earn in suitable employment’ in s 35 are not relevant to the preliminary question of whether a worker has a current work capacity. They are, however, relevant to determining the amount to be taken into account as the worker’s earnings after the injury where he or she is not employed. In assessing that amount, the reference to ‘the amount the worker is able to earn in suitable employment’ is a reference to the amount the worker is able to earn in suitable employment, as that term is defined in s 32A”.
Counsel for the applicant argued that the applicant was totally incapacitated for work from 24 August 2022 to date and continuing.
The respondent submitted that there should be a finding that the appellant did not suffer any ongoing incapacity for work from 5 January 2023, that being the end of the last period in which the applicant was certified as having no capacity for work. In the alternative the respondent argued that any incapacity was partial and the applicant would only be entitled to an award of $100.00 per week because of the absence of medical certificates and the inconsistencies in his evidence.
Associate Professor Hope was of the view that pre-injury duties were permanently inappropriate. He wrote: “Currently, this gentleman is unemployable due to his inability to sit or stand for any useful period and inability to lift any useful weight.” Associate Professor Hope noted that the conditions he diagnosed, namely, cervical spine permanent aggravation spondylosis, left shoulder rotator cuff tear and lumbar discopathy, would improve with correct management and recommended physiotherapy and hydrotherapy. He concluded that the applicant had no capacity for work.
Dr Bruce considered that there had not been any significant physical injury and the most that would have been caused was a minimal soft tissue strain that would have resolved within three to for weeks. He was of the view that any workplace injury had resolved.
Dr Young made a primary diagnosis of a Somatic Symptom Disorder that there was a perceived physical injury for which there was no medical rationale. However, Dr Young stated that if there was an actual physical injury, a diagnosis of an Adjustment Disorder would be made. Since I have determined that the applicant sustained physical injuries to his cervical spine, lumbar spine and left shoulder, the diagnosis of an Adjustment Disorder is appropriate. Dr Young was asked whether the applicant was incapacitated for work and responded: “Taken at face value he is incapacitated for work.”
The applicant stated that he had to stop his medical treatments as he could not afford treatment after the insurer rejected his claim.
On 20 October 2022, Dr Calvache-R in a State Insurance Regulatory Authority Certificate of Capacity, certified the applicant as having no current capacity for any work from 20 October 2022 to 5 January 2023. Under “If no current capacity for work, estimated time to return to any type of employment”, Dr Calvache-R wrote” unlikely ever”. He noted that pain, psychological distress and insurance barriers were factors affecting recovery.
Dr Lim had certified the applicant as having no current work capacity in the NSW WorkCover Certificates of Capacity issued on 24 March 2022. Dr Calvache-R had issued NSW WorkCover Certificates of Capacity issued on 8 April 2022, 29 April 2022, 16 May 2022 and 6 June 2022, in which he certified the applicant as having no work capacity.
Taking into account the opinions expressed by Associate Professor Hope, Dr Lim, Dr Calvache-R and Dr Yung, I am satisfied that the applicant had no current work capacity from 24 August 20022 to date as a result of his injuries to his cervical spine, lumbar spine and left shoulder and his secondary psychological condition. I accept that there were no more medical certificated issues in respect of capacity for work after 5 January 2023, but the applicant stated, and I accept, that he could not afford further treatments once the insurer declined his claim. If he could not attend his doctor for further treatment, he would not have been able to get further medical certificates. I inferred from the medical evidence, excluding the report of Dr Bruce, that the total incapacity for work continued after 5 January 2023 and will continue until the applicant receives adequate treatment.
On balance I am satisfied that the applicant has no current working capacity from 24 August 2022 to date and continuing. Therefore, the applicant is entitled to receive weekly benefits pursuant to s 37(1) of the 1987 Act from 22 August 2022 to date and continuing.
There will be an award of weekly payments to the applicant as follows:
(a) $920.16 from 24 August 2022 to 30 September 2022 pursuant to s 37(1) of the 1987 Act;
(b) $951.17 from 1 October 2022 to 31 March 2023 pursuant to s 37(1) of the 1987 Act;
(c) $990.55 from 1 April 2023 to 30 September 2023 pursuant to s 37(1) of the 1987 Act, and
(d) $1,014.02 from 30 September 2023 to date and continuing pursuant to s 37(1) of the 1987 Act.
The respondent is to have credit for any payments of weekly benefits made during the periods above.
The applicant made a claim for s 60 expenses. In view of the findings made above, a general order will be made for s 60 expenses.

[2024] NSWPIC 7

8 January 2024