Allingham v Access Group Solutions Melbourne

Case •

[2023] VMC 17

•

8 December 2023

IN THE MAGISTRATES’ COURT OF VICTORIA

AT MELBOURNE

WORKCOVER DIVISION OF COURT

Case No. N11044442

Anthony ALLINGHAM

Plaintiff

v  

ACCESS GROUP SOLUTIONS MLEBOURNE PTY LTD

Defendant

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MAGISTRATE:

Magistrate M A Hoare

WHERE HELD:

Melbourne

DATE OF HEARING:

22 – 23 October 2023

DATE OF DECISION:

 8 December 2023 

CASE MAY BE CITED AS:

Allingham v Access Group Solutions Melbourne

MEDIUM NEUTRAL CITATION:

[2023] VMC 17

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WORKERS COMPENSATION – Rejected claims - Lumbar spine – Bilateral inguinal bilateral hernias –- Injury in course of or arising out of employment - Whether employment a significant contributing factor – Capacity – Whether incapacity resulted from or was materially contributed to by compensable injury - Credit of the Plaintiff – Workplace Injury Rehabilitation and Compensation Act 2013, ss 3(1), 39(1), 40(3), 160, Sched 1, cl 25.

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APPEARANCES:

COUNSEL

SOLICITORS

For the Plaintiff

Mr Y C Chen

Carbone Lawyers

For the Defendant

Ms C A  Kusiak

TG Legal + Technology

HER HONOUR:

Introduction

  1. The central issues in this case were causation and the plaintiff’s credit.

  1. From the time of leaving school after year ten, Mr Allingham, the plaintiff now aged 61 years, has performed manual work mostly as a storeman or labourer.

  1. From 2 July 2019 until he resigned on 5 August 2019, Mr Allingham was employed by the defendant, Access Group Solutions Melbourne (AGS), a period of about five weeks (the work with AGS). Thereafter, according to his Statement of Claim of 25 May 2022, Mr Allingham lodged three WorkCover claims on AGS (all rejected by the Agent) as follows:

a.          By claim form dated 14 February 2020, a claim for weekly payments and medical and like expenses for his low back with ‘constant pinching of nerve’ and pain down the left leg with date of injury of 10 July 2019[1] (the back claim);

b.          By claim form dated 10 September 2021, a claim for weekly payments and medical and like expenses for an inguinal hernia injury involving groin, hip and back pain with date of injury of 10 July 2019 (the hernia claim)[2];

c.           By claim form dated 3 February 2021, a claim for impairment benefits (IB) with respect to the inguinal hernia injury also with date of injury of 10 July 2019  (the IB claim)[3].

[1] Notice of decision dated 20 March 2020.

[2] Notice of decision dated 8 October 2021

[3] Notice of decision dated 21 April 2022

  1. AGS, via its Notice of Defence of 24 June 2022, denied any injury; denied employment was a significant contributing factor; and denied that any incapacity resulted from or was materially contributed to by the work with AGS.

  1. Mr Allingham gave oral evidence as did a lay witness for AGS, Mr Ara Ezzat, a former employee of AGS who worked with Mr Allingham.

Factual Background

  1. It is convenient to set out matters of evidence about which there was no dispute.

  1. Between 2011 and 2016, Mr Allingham was employed as a labourer/forklift operator with Dnata Airport Services (Dnata) in airline freight services.

  1. In 2013, Mr Allingham sustained a cervical spine (and left shoulder) injury with Dnata for which liability was accepted. That culminated in cervical fusion surgery after which he returned to modified duties. He re-injured himself at work in August 2014. He went off work before resuming full-time modified duties. In September 2016, his employment with Dnata was terminated on grounds he was unfit for normal duties.

  1. Mr Allingham did not work again until commencing the work with AGS.

  1. In or around February 2019, having been referred by Centrelink, he registered with a disability employment agency, Matchworx, for support with returning to work. It was via Matchworx he obtained employment with AGS.

  1. Mr Allingham’s role with AGS was as a full-time maintenance officer at Craigieburn Shopping Centre performing repair and upkeep tasks. The work was Monday to Friday from 7:00 am to 3:30 pm.

  1. On 18 July 2019, an AGS incident form was completed by a security officer (Patrick Sookun) based on information from Mr Allingham (the incident report). The stated ‘description of incident’ concerning an injury on 10 July 2019 was: ‘Approx 13:00 hrs … Tony Allingham AGS … reported that an injury occurred while on site shifting metal shelving and bollards…It appeared when picking heavy yellow bollard together with colleague Ara, Tony felt severe pain on his back and after stretching for a few minutes, he then continued his duties. …’ 

  1. Also on 18 July 2019, Mr Allingham attended his GP, Dr Hussain, who recorded the history: ‘last [week] when squatted and lifted something from the floor at work felt sudden low back pain, able to keep working. Taking Panadol, at times radiates to  back of left hamstring …’

  1. Mr Allingham stayed at work until 2 August 2019 before he resigned by sending an email on 5 August 2019. That email stated (in part) he was resigning due to ‘unforeseen medical issues that are preventing me from operating at full capacity’. He also spoke with his supervisor, Ahmed.

  1. He has not worked since he ceased employment with AGS.

  1. Mr Allingham is presently on a public hospital waiting list for hernia surgery.

  1. There were pre-existing health issues including high blood pressure and type 2 diabetes that were managed with medication.

  1. There was evidence of prior radiological lumbar spine investigations in 2007, 2009 and 2017, a matter to which I will return later in these reasons.

  1. I now turn to the evidence on contentious issues.

Mr Allingham’s evidence

  1. As for low back issues prior to the work with AGS, he had what he called ‘niggling’, nothing too serious, for which he took painkillers.

  1. Under cross-examination, Mr Allingham did not dispute past episodes of low back pain requiring anti-inflammatories and scans in 2007 and in 2009. 

  1. Also, under cross-examination, Mr Allingham did not dispute that on 26 June 2017 his GP recorded ‘worsening pain in the lower back’ and arranged a CT scan showing L3/4 and L4/5 protrusions.

  1. Mr Allingham agreed it ‘sounded right’ that in a May 2018 independent medical examination (IME) for the Agent regarding the cervical spine claim, he gave Dr Wong a history of ‘continuous pain’ in the neck and right shoulder region.

  1. In cross-examination also, Mr Allingham agreed that on 18 June 2018, he saw his GP complaining of low back pain after getting off the couch which was worse the next morning. However, he denied that episode was typical of his low back pain at the time, saying it was a ‘one off’. Later he conceded that, by the time he started with AGS, he had long-standing low back pain for which he would see his GP and take medication.

  1. As for why in March 2020 he told Mr Menz, orthopaedic surgeon, that he had ‘never had any significant back problems before’, under cross-examination, he said it was because there was no severity to it and had only little niggles.

  1. Asked to explain why he had written ‘no’ on the back claim form about whether he had another injury/condition related to the injury, under cross-examination, Mr Allingham agreed ‘no’ was wrong. He could not recall why he had not answered the question properly, he didn’t know the severity of it or may not have interpreted the question properly.

  1. By June 2019, just before the work with AGS, he felt his low back was generally good and his neck and shoulders were no longer giving him grief or causing problems.

  1. In cross-examination, Mr Allingham agreed his CV (as given to AGS) and employment application form were not true in stating that between 2016 and 2019 he was a self-employed home handyman. He put that to make his work history look better to prospective employers.

  1. Duties with AGS were generally light manual maintenance and repair tasks like touching up paint work  and so on.

  1. On 10 July 2019, Mr Allingham was working with a co-worker, Mr Ara Ezzat, in a vacant shop within the shopping complex. The task was to move steel shelving and concrete bollards to the side of the shop floor (a distance of about 20 feet). The shelving weighed between 5 and 15 kilograms. The rectangular concrete and plastic bollards (approx. 2 feet by 1 foot by half a foot high) weighed 20 to 30 kgs. These sat on the floor to secure the shelving by way of poles inserted into two holes.

  1. The task needed to be done the same day and was strenuous. He had discomfort in his hip, low back, left leg and groin, but worked on till the end of the day. He also worked the next day and kept working until he resigned. The pain did not go away between 10 July and 5 August 2019, instead it got worse.

  1. He resigned because of the severity his low back and groin pain.

  1. As for treatment, he saw his GP, took prescribed medication (including Targin and Panadeine forte) and had physiotherapy. He was referred to a specialist, Dr Akil. He was referred for cortisone injections, although that didn’t proceed due to the pandemic.

  1. Currently, he has severe and constant low back pain radiating into his left buttock and leg. The pain was worse with sitting, twisting, turning or lifting. The pain is more severe than the prior low back pain he had before the work with AGS.

  1. Since finishing up with AGS, he hasn’t contacted Matchworx again nor explored a return to work. He could not perform the duties he was doing with AGS because of the severity of his low back and groin pain. He did not think he could perform security work nor any other work.

  1. His wife was his full-time carer and assisted with showering and putting on socks and shoes.

Mr Ezzat’s evidence

  1. Mr Ezzat, who gave evidence via an Arabic interpreter, was employed by AGS in a similar role to Mr Allingham at the Craigieburn Shopping Centre from 2018.  His employment ended in 2020 due to the pandemic. He and Mr Allingham generally worked together and did so on 10 July 2019 in the vacant shop moving the shelving.

  1. As for any conversation with Mr Allingham that morning, he recalled only general comments regarding the work. Mr Allingham had finished up around 1:00 pm (not the usual finish time) because he had been complaining of his back aching after mowing the lawn in his backyard. Mr Allingham had told him that in the morning.

  1. Under cross-examination, Mr Ezzat said he had no recollection of there being concrete bollards into which the shelving posts fitted.

  1. Also under cross-examination, Mr Ezzat agreed he typed up and signed a brief statement dated 5 March 2020 about what happened on 10 July 2019. He did this in the shopping complex office and had used the ‘Google Translate’ function on his phone. He was helped by one or two individuals he worked with then - including possibly Bernard, supervisor of the cleaners.

Medical evidence

  1. Dr Ahsan Hussain, treating GP, prepared letters and reports between 24 July 2019 and 27 March 2023. The history of the back injury was of moving concrete bollards at work on 10 July 2019 when he felt sharp low back pain radiating down the left leg. It was opined the back problem was directly related to work on 10 July 2019.  Bilateral inguinal hernias seen on ultrasound of 22 July 2019 were unknown before. The hernias, which required surgery, were work-related and also arose out of the work on 10 July 2019. On causation, Dr Hussain, in a report of 17 November 2020, reiterated both complaints (back and hernias) began when squatting and lifting something from the floor. He had no prior problem of bilateral hernias before presenting on 18 July 2020. Similarly, the presentation on 18 July 2019 for low back pain radiating into the left leg was preceded by no such problems. As for capacity, he was unable to perform any manual work due to persisting pain and such work would aggravate symptoms.

  1. Dr Hazem Akil, treating neurosurgeon, prepared reports of 19 May 2020, 17 September 2022 and 10 May 2023. The onset of left-sided low back pain radiating into the left leg followed lifting of heavy shelving at work. He worked on for a week before ceasing. The past cervical spine history was noted. Mr Allingham reported no significant past medical history that could be contributory to the low back condition. He expressed surprise that the WorkCover claim was not accepted as it seemed to be a very clear work injury. He opined specifically that the work on 10 July 2019 was a significant contributing factor to the development of low back pain condition. Based on the MRI lumbar spine of 22 April 2020, diagnosis was aggravation of lumbar spondylolysis with resulting lateral recess stenosis.

  1. Mr Binh Nguyen, surgeon, in reports of 6 February 2023 and 22 June 2023, recorded a known hernia bilaterally and four years of left groin pain after heavy lifting at work. The left groin hernia which required surgery was consistent with his history. Within 6 to 8 weeks of surgery he would recover to normal capacity.

  1. Dr David Kennedy, physician, prepared a medico-legal opinion of 19 October 2021 for Mr Allingham’s lawyers. The cervical spine injury and fusion was noted. There had been niggling low back problems over the years with strenuous activities. After the work on 10 July 2019, when he lifted the third bollard, pain came on severely in the left buttock and groin. He kept working because he was in a new job, thinking he had a muscle strain until 18 July 2019 when he began limping.

  1. As for causation, Dr Kennedy opined that as a consequence of heavy lifting on 10 July 2019, there was injury to the lumbosacral spine involving aggravation of pre-existing but essentially asymptomatic spondylosis. Work capacity was restricted including lifting and carrying. Additionally, there was onset of left inguinal region pain with indirect inguinal hernias seen on ultrasound. It was opined the hernias may have been present previously and became symptomatic at the time of the lifting on 10 July 2019. He opined that ‘interwoven’ with the pain in the left inguinal region was the associated problem relating to lumbosacral injury with probable irritation to left-sided nerve roots.

  1. Apparently Dr Kennedy was unaware of a previous medico-legal report of 16 August 2017 he provided about the cervical spine claim.  (This was tendered into evidence by AGS). He concluded then there was residual capacity for full-time restricted work due to neck pain and stiffness.

  1. Mr Thomas Kossmann, orthopaedic surgeon, prepared a medico-legal report dated 1 August 2022  for Mr Allingham’s lawyers. There was onset of low back pain radiating into the left hip and leg after picking up a concrete bollard on 10 July 2019. The prior cervical spine history was noted. Diagnosis was opined to be lumbar spondylosis with multi-level disc protrusions and possible nerve root impingement in conjunction with severe facet joint disease. As for capacity, taking into account only the lumbar spine condition, it was opined Mr Allingham was not fit to return to any physically demanding work with restrictions also on walking and lifting.

  1. In a supplementary report of 10 February 2023, Mr Kossmann commented updated investigations including: a CT lumbar spine scan of 26 October 2022 showing severe facet joint arthrosis of L4/5 and L5/S1; an MRI cervical scan of 4 December 2022 showing severe cervical spondylitic changes and the intersegmental spinal fusion; and a left hip ultrasound of 13 December 2022.

  1. Mr Michael Wong, general surgeon, in the IME report of 30 May 2018, recorded complaints of continuous neck and shoulder pain. There was past lumbar back soreness when working in construction and as a storeman. As for capacity, he opined Mr Allingham could perform modified work duties such as he had performed for Dnata. As for the intermittent low back pain and occasional right leg radiculopathy, it was observed that Mr Allingham had been able to work with that condition for years. 

  1. Dr Anthony Menz, orthopaedic surgeon, prepared a report for the Agent dated 17 March 2020. The history was of acute low back pain while shifting steel/concrete bollards on 10 July 2019.  Mr Allingham reported no significant back problems before. There was also no history of the cervical spine injury and fusion surgery. As no radiology was provided, no opinion on diagnosis was given. It was accepted based on the history there was a back injury as a result of lifting bollards at work on 10 July 2019 resulting in no capacity for work.

  1. Mr Peter Grossberg, general and endoscopic surgeon, prepared an IME report for the Agent dated 29 September 2021. There was onset of sharp pain in his left groin, back  and left leg when lifting a concrete bollard on 10 July 2019. He worked on for a week thinking he had pulled a muscle until he was noticed limping. The ultrasound revealing bilateral inguinal hernia was noted.

  1. It was considered likely the back pain and left-sided sciatica were related to the lifting of the bollard although the long-standing history of physical work was also noted. He considered, given no awareness of groin swelling and no significant problems related to both sides, that the main problem was left-sided sciatica related to degenerative disease of the lumbar spine. It was suspected on balance that the bilateral inguinal hernia diagnosis was an incidental finding unrelated to the lifting on 10 July 2019.

  1. Dr Catherine Bones, occupational physician, prepared a report for AGS’ lawyers dated 25 November 2022. The onset of pain in the low back, left leg and groin after lifting a third bollard on 10 July 2019 was recorded. She noted a past history of low back ‘soreness’ in 2007 and nothing ‘drastic’ since. He reported the past cervical spine surgery and described being ‘very active and very mobile’ before starting the work with AGS on 2 July 2019. Diagnosis was chronic low back pain and lumbar dysfunction on a background of degenerative constitutional lumbar spondylosis with possible left-sided radiculopathy as well as bilateral, indirect inguinal hernias. As for capacity, with respect to the low back injury and bilateral hernias, there was no capacity for pre-injury duties which involved bending, carrying and lifting. There was capacity for suitable modified employment, given the prior security training course, in a control-room security role initially part-time.

  1. Mr Kevin Sui,  neurosurgeon, prepared a report for AGS’ lawyers of 15 September 2023. The work on 10 July 2019 was reported to have caused onset of left-sided groin and leg pain. He kept working as he was ‘adjusting to the new job’ and ‘really did not want to make a fuss’. By 18 July 2019, the pain was too much and after being noticed limping filed an incident report. As for diagnosis, he opined as to the progression of lumbar spondylosis between the 2017 CT scan and the April 2020 MRI. That suggested a worsening of the L4/5 prolapse and worsening facet joint disease. It was possible there was a soft tissue injury aggravating the pre-existing spondylosis which would resolve in a matter of weeks to months.

  1. The progression of the underlying spondylosis was considered by Mr Sui to be ‘the natural history of the condition’ and not caused by the ‘alleged injury at work’. Symptoms appeared to be in excess of what organic pathology may be present on examination. Symptoms could be explained based on the pre-existing lumbar spondylosis, but causation may not be from the reported work injury. No abnormal illness behaviour was observed. As for capacity, with retraining, he could return to pre-injury duties; although, factors against that were his age and being de-conditioned due length of time out of the workforce. As for treatment, he may be a candidate for pain management although the chances of significant improvement after that were not great.

Analysis

  1. The legal and evidentiary onus of proof rested with Mr Allingham to establish, on the balance of probabilities, that he had suffered injury arising out of or in the course of employment pursuant to s.39(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act).

  1. He needed to establish causation to the requisite standard with respect to each of the low back and the hernias.

  1. With respect to the low back, given the evidence regarding underlying and pre-existing lumbar pathology, AGS relied upon s.40(3) of the Act. It was contended that Mr Allingham had failed to establish that the work on 10 July 2019 was a ‘significant contributing factor’ to any recurrence or aggravation.

  1. Additionally, pursuant to s.160 of the Act, Mr Allingham needed to establish any incapacity for work from 5 August 2019 onwards resulted from or was materially contributed by either or both of the claimed injuries.

  1. In discharging the burden of proof on these matters, Mr Allingham needed to establish that his evidence was credible and reliable and also to establish the reliability of the histories given to the medical witnesses. That has been observed by the Court of Appeal many times, including in Johns v Oaktech Pty Ltd.[4]

    2. [4][2020] VSCA 10 at [76]

  2. Mr Allingham’s credit was impugned in the course of cross-examination. Counsel for AGS contended there was a series of ‘red flags’ in his evidence that demonstrated ‘a preparedness to bend the truth’.
  3. Firstly, there was the fabricated work history for the period 2016 to 2019 in the CV and AGS job application. It would be no answer for Mr Allingham to say he wanted to enhance prospects of obtaining work - the reality was Mr Allingham had registered with a disability employment agency which meant there was no need to falsify a gap in the work history.

  1. Secondly, Mr Allingham himself accepted a significant instance of him being less than frank. That was his acknowledgment, under cross-examination, that it was ‘wrong’ to write ‘no’ on the back claim form about any prior injury or condition.

  1. Thirdly, the evidence about the bollards was vague, confusing and unconvincing such as whether they were yellow or some other colour. It was curious Mr Allingham produced photos of large tables as an example of heavy tasks with AGS, yet had taken no photos of the bollards. Mr Allingham himself, under cross-examination, conceded this was a ‘good point’.

  1. Fourthly, Mr Allingham had failed overwhelmingly to establish the reliability of the histories given to the medical witnesses. That was because of the numerous inaccuracies, omissions and inconsistencies particularly regarding the prior lumbar spine condition.

  1. On the other hand, Counsel for Mr Allingham submitted he was a genuine and unsophisticated person whose evidence ought to be accepted. Based on the matters relied upon in submissions by Counsel for AGS, it would be too far-reaching to conclude Mr Allingham intended to mislead the Court or to infer dishonesty generally.

  1. For example, the work history on the CV and job application needed to be viewed in context. Having been off work for a lengthy period, Mr Allingham had to ‘put his best foot forward’ to optimise chances of returning to the workforce.

  1. Also it was submitted the plaintiff’s credit was bolstered substantially by concessions made against interest on key disputed matters. These included: agreeing to having continued problems with his neck throughout; the candid acceptance that lifting his arms above his head made things worse;  and that both his neck and his back affected his sleep.

  1. Having had the benefit of observing Mr Allingham under cross-examination, I make the following observations.

  1. I accept Mr Allingham made appropriate concessions regarding his prior injury history. He did not shy away from his ongoing cervical spine condition and readily admitted to an error of judgement regarding his answer on the back claim form about a prior condition. I also agree dressing up a gap in a CV work history, although hardly commendable, ought not of itself be a basis for discounting credit on matters in dispute.

  1. Weighing the whole of the evidence, in particular Mr Allingham’s evidence and the concessions made in cross-examination on important matters, I did not form the impression that Mr Allingham was deliberately attempting to mislead the Court. He appeared to be frank and open when answering questions under pressure of cross-examination.

  1. Nevertheless, I accept that, given the matters raised in submissions by Counsel for AGS, there were grounds for reservation about aspects of his evidence, particularly on disputed matters. Accordingly, it seemed to me, unless there was corroborative or contemporaneous evidence, I needed to exercise considerable caution in accepting the reliability of his account on disputed matters.

  1. For instance, there was his confusing and contradictory evidence about whether he had a photo of a bollard handled on 10 July 2019. Initially, under cross-examination, he said he did, later he said he ‘didn’t think he had to’ take photos. In re-examination, he clarified he meant he had an image of a bollard found on the internet rather than of the bollards handled on 10 July 2019.

  1. As for the reliability and accuracy of the histories given to the medical witnesses, that is a matter to which I will return later in these  reasons when considering causation.

  1. Pausing here, it is convenient to assess Mr Ezzat’s evidence as well as the competing submissions regarding AGS employees who were not called to give evidence.

  1. I did not form a favourable impression of Mr Ezzat as a reliable or credible witness.  Initially, his evidence was that the only conversation between he and Mr Allingham on 10 July 2019 comprised general remarks about the tasks. Later, in direct contradiction of that, he changed his evidence and said Mr Allingham had, on the morning, mentioned having back ache after mowing the lawn on the weekend.

  1. As for Mr Ezzat’s brief typewritten statement of 5 March 2020,  I disagree with Counsel for AGS that it should be given weight as being a ‘contemporaneous’ account. Ten months had elapsed between preparing that account and the work on 10 July 2019.

  1. Additionally, there were two further matters that undermined the weight of that statement. First, he gave evidence at hearing via an interpreter; yet this statement, which was poorly drafted and sparse in detail, was prepared merely using the ‘Google translate’ function on his phone.  Second, Mr Ezzat conceded it was prepared in the AGS office where he was ‘helped’ by ‘one or two’ AGS staff (including possibly ‘Bernard’, a supervisor).  

  1. For these reasons, I agree with Counsel for Mr Allingham that limited, if any, weight ought be given to the statement of 5 March 2020. It seems likely to me, given the circumstances of the drafting, that it was made at the request of his then employer to further the interests of AGS. For example, it contained the alleged lawn-mowing comment by Mr Allingham; referred to him ‘always’ talking about his body pain; and stated that he (Mr Ezzat) had done ‘most of the work’ on 10 July 2019.

  1. For the same reasons, I also reject the submission by Counsel for AGS that it was ‘telling’ that Mr Ezzat’s statement was silent regarding the handling of bollards as part of the work on 10 July 2019.

  1. Finally, although it was put to Mr Allingham in cross-examination that Mr Ezzat would say there were no bollards, in fact that was not his evidence. Rather, under cross-examination, it was clear he simply had no recollection.

  1. I now turn to submissions on witnesses referred to in the hearing as ‘Bernard’ and ‘Ahmed’ neither of whom were called to give evidence.

  1. Mr Allingham’s Counsel urged the Court to draw a Jones v Dunkel[5] inference that the evidence respectively of Bernard and Ahmed, if called, would not have helped the case of AGS.

    [5] (1959) 101 CLR 298

  1. As for Bernard, Counsel for AGS asserted there was no basis for such an inference, that Bernard was no longer an employee of AGS and could equally have been called by Mr Allingham, there being no property in witnesses.

  1. I draw no inference with regard to Bernard. I have, in any event, stated a further basis as to why to my mind Mr Ezzat’s statement of 20 March 2019 has little or no evidentiary weight.

  1. Counsel for AGS conceded there may be a basis for drawing an adverse inference regarding the evidence of Ahmed, Mr Allingham’s direct supervisor.

  1. Counsel for Mr Allingham submitted AGS’s failure to call Ahmed was ‘significant’ because Mr Allingham stated the injury was reported to Ahmed on 18 July 2019 and also because the evidence of Mr Allingham calling Ahmed to resign.

  1. Accordingly, I am prepared to infer that Ahmed’s evidence may not have helped AGS’ case.

  1. Of course it is impermissible to speculate as to the nature Ahmed’s evidence had he been called.

  1. In any event, little turns on that given there was tendered into evidence, the incident report completed on 18 July 2019 just eight days after the work on 10 July 2019.

  1. Although there was  a delay of some seven months in lodging the back claim, I consider to be compelling evidence the two contemporaneous and documented reports of the work on 10 July 2019 and related complaint of injury. First, there was the incident report and, second,  the history given to the GP as recorded in the progress notes. The content of both contemporaneous reports was set out in the factual background section of these reasons.

  1. I agree with Counsel for Mr Allingham that it would require either considerable sophistication or moral turpitude to concoct that narrative and ‘make up’ two contemporaneous reports of injury. Whilst I have expressed reservations regarding the reliability of Mr Allingham’s evidence, weighing the whole of his evidence, I also agree with his Counsel that such a finding was simply not open on the whole of the evidence.

  1. For these reasons, I am satisfied that the weight of evidence supports a conclusion that the nature of the work performed on 10 July 2019 was, in fact, as stated by Mr Allingham on the back claim form dated 14 February 2020. There, as to ‘what happened and how were you injured’, he stated that, on 10 July 2019, he ‘squatted and picked up my third bollard from the floor and immediately felt a sharp pain across my lower left side of my lower back’.

  1. Having considered those matters, regarding the work on 10 July 2019, I make the following findings of fact:  

a.   From the start of the day till about 1:00 pm, Mr Allingham (with Mr Ezzat) worked in the vacant shop handling and shifting shelving components over to one side of the floor.

b.   The shelving components handled by Mr Allingham included both steel shelving and concrete bollards which sat on the floor to secure the shelving poles. That finding is based on the contemporaneous incident report which stated:  injury ‘occurred while ‘shifting metal shelving and bollards’; and, pain ‘appeared when picking heavy yellow bollard’. Although the GP does not refer to bollards, the initial history is consistent with the incident report of the same day. For reasons already stated, I place no weight on the absence of mention of bollards in Mr Ezzat’s statement of 20 March 2020.

c.    The bollards, being made of concrete, were heavy although I do not consider I can safely make any finding as to their specific weight.

d.   The mechanism of injury was that Mr Allingham had to squat and pick up the bollards from the floor and, in doing so, experienced the onset of pain. That was apparent from the GP history of having to squat and pick up ‘something from the floor at work’.

e.   Mr Allingham did, whilst moving a bollard on 10 July 2019, suffer a sudden onset of pain in his low back and  in the region of his left upper thigh or groin which he complained of to his GP on 18 July 2019 (based on the GP reference to ‘back of left hamstring’)

  1. For completeness, for inconsistencies over the colour of the bollard, I agree with Mr Allingham’s Counsel that any inconsistency as to details of that nature is explicable by the lapse of time.  

  1. I conclude therefore that, on the balance of probabilities, that Mr Allingham suffered injury in the course of or arising out of employment with AGS on 10 July 2019.

Injury

  1. Having made those factual findings, I turn now to the nature and diagnosis of any medical condition relevant to the injury suffered on 10 July 2019. I will then consider the central question of causation.
  2. Pausing here, it is necessary to make some overall observations about the medical evidence in this case.
  3. Firstly, I agree with Dr Kennedy’s observation that the evidence was indeed ‘interwoven’  as regards the onset and symptoms of back pain and the inguinal hernias diagnosis. This created considerable, added complexity to the task of assessing of injury and attribution to the work on 10 July 2019.
  4. Secondly, given the initial back claim was lodged in February 2020 and the hernia claim was not lodged until September 2021, questions of causation and liability were further complicated. That was not only due to late lodgement of the back claim but also because of two separate claims being lodged some 18 months apart. The reasons for that did not become clear at hearing.
  5. Thirdly, in spite of the relative complexity of the causation issue, by agreement, none of the medical witnesses were called for cross-examination.
  6. Fourthly, and to my mind most unhelpfully in a complex causation case, a number of the medical witnesses, particularly those relied upon by the plaintiff, were asked to provide their opinions based on deficient and incomplete information.  Dr Akil, Mr Kennedy and Mr Kossman had none of the prior lumbar imaging or radiology reports nor did they have complete or accurate histories (a matter to which I will return). However, that also the situation with two of the defendant’s  medical witnesses, Mr Menz (the initial IME) and Mr Grossberg (the specialist IME on the hernia claim).
  7. Of course, having made those observations, my task is to assess the evidence before me and to make findings as to liability with respect to each of the claimed injuries.

  1. Also, in assessing the medical evidence, I am guided by the principles in Pulling v Yarra Ranges Shire Council.[6] In particular, I note the obligation to examine the whole of the medical evidence even where it may have been undermined by other evidence, including evidence that the worker may not have been fully frank with a doctor.[7] 

    [6] [2018] VSC 248 at [50] to [55]

    [7] Ibid at [50]

  1. Additionally, the Court of Appeal has also, in cases such as Philippiadis v Transport Accident Commission, referred to the need for Courts to exercise care in relying on the record of medical practitioners which are of course very often highly probative, but cannot be treated as a verbatim transcript of the entire medical attendance[8].

    [8] [2018] VSCA 243 at [105] – [106]

  1. Although the hernia claim was lodged subsequently, it is convenient to consider liability for that claim first. That is because, as regards the back claim, I must also undertake a detailed analysis of the evidence as to the underlying and pre-existing lumbar pathology.

Hernia claim

  1. Mr Allingham had a diagnosis of bilateral indirect inguinal hernias as seen on the groin ultrasound of 22 July 2019 arranged by the treating GP, Dr Hussain, following the attendance on 18 July 2019.
  2. Whilst that much was clear, there was vigorous dissent as to whether the hernia pathology was causally related to the work on 10 July 2019.
  3. Counsel for AGS, unsurprisingly, submitted the Court ought to prefer Mr Grossberg’s opinion in finding that the hernia pathology was unrelated to the work on 10 July 2019. That contention was, inevitably, linked to Counsel’s other submissions seeking to impugn Mr Allingham’s credit and the fact of the late (and separate) lodgement of the hernias claim.
  4. Having already stated my findings about the plaintiff’s credit, the mechanism of injury and that there was injury in the course of or arising out of the work on 10 July 2019, I turn now to the medical evidence on liability regarding the hernias.
  5. I make the observation that the GP progress notes contained in the Tullamarine Complete Health (Tullamarine) clinical records are particularly brief and lacking in detail.
  6. Nevertheless, it seems to me the unchallenged evidence was as follows:

a.Within a couple of days of the 18 July 2019 consultation,  Dr Hussain referred Mr Allingham for a groin and scrotal ultrasound. The recorded clinical basis for that was: ‘Pain in the left testis radiating to the left groin’.

b.Then, apparently ‘on examination’ on 24 July 2019 (and after the ultrasound report) Dr Hussain recorded: ‘bilat. indirect hernias’.

c.Soon after that, Dr Hussain referred Mr Allingham to a surgeon at the Northern Hospital (Mr Nguyen) for management of the hernia pathology.

d.Mr Allingham remains under Mr Nguyen on a public hospital waiting list for repair surgery to the left hernia.

  1. I now turn to the medical opinions as to whether there was a relationship between the hernia pathology and the work on 10 July 2019.
  2. Dr Hussain opined (in his report of 9 December 2021) that the hernias were work-related. That was based on the history of lifting concrete bollards on 10 July 2019 and the hernias being (as he put it) ‘unknown before that date’.
  3. Mr Nguyen, also based on a history of onset of symptoms on or following the work on 10 July 2019, opined that the left groin hernia was consistent with the history of heavy lifting four years previously.
  4. Dr Kennedy, a physician, opined that the hernias may have been present previously, but became symptomatic as a result of the lifting on 10 July 2019.
  5. Mr Grossberg, on the other  hand, was ‘not convinced’ the bilateral hernias were related to the work on 10 July 2019. He thought the finding on ultrasound was ‘incidental’. That was based, apparently, on there being no obvious swelling in either groin, although I note he did record there being occasional groin soreness when coughing.
  6. It is clear Mr Grossberg was influenced in his conclusion by his assumption that, had the hernias been problematic, Mr Allingham would have  been referred to a general surgeon for management.
  7. As already stated, the unchallenged evidence was that Mr Allingham had, in fact, been so referred by Dr Hussain; he had been assessed as warranting left hernia surgery; and was on a public hospital waiting list.
  8. Moreover, I note that Mr Grossberg specifically stated in his report to the Agent that it ‘would be important’ to get documentation from the GP about the groin and back. However, it appears that never occurred and no supplementary report of Mr Grossberg was tendered into evidence.
  9. Accordingly, regarding the hernias, I prefer the contemporaneous evidence and opinions of Dr Hussain, Mr Nguyen and Dr Kennedy rather than that of Mr Grossberg whom I consider formed an opinion based on incomplete information.
  10. For these reasons, and given my prior findings about the work on 10 July 2019, I am satisfied that the weight of the medical and other evidence supports, on the balance of probabilities, the following conclusions:

a.   The nature of Mr Allingham’s medical condition relevant to the claimed hernia condition was bilateral indirect inguinal hernias as demonstrated on the groin ultrasound of 22 July 2019.

b.   The hernia condition arose out of or in the course of the work on 10 July 2019.

  1. For completeness, whilst Dr Kennedy made a passing reference to the hernias possibly being present before and becoming symptomatic, the weight of evidence suggests a new injury. Even if that is incorrect, there is no suggestion of prior symptomology, thus I also conclude that the work on 10 July 2019 was a ‘significant contributing factor’ the aggravation of underlying, asymptomatic pathology.

Back claim

  1. As already stated, I have concluded that Mr Allingham, in carrying out the work on 10 July 2019, experienced the onset of low back pain and complained to his GP about the pain eight days later.  

  2. On that basis, I find that Mr Allingham did suffer a back injury arising out of or in the course of employment on 10 July 2019.

  3. The meaning of ‘injury’ includes ‘a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease’: s.3 of the Act.

    1. As stated already, the weight of evidence also needed to establish, to the requisite standard of proof, that the work on 10 July 2019 was a ‘significant contributing factor’ to the recurrence, aggravation, acceleration, exacerbation or deterioration’ of the pre-existing or underlying lumbar pathology.
    2. Submissions of both Counsel referred to the factors listed in Clause 25 of Schedule 1 of the Act which must be considered in an assessment of whether employment is a ‘significant contributing factor’ to any such aggravation.
    3. The Court of Appeal in St Mary’s School v Askwith put it this way:

    The words ‘significant contributing factor’ involve resolution of an essentially factual enquiry, the question being one of degree, requiring evaluation.[9]

    [9] [2011] VSCA 90 at [14]

  1. In this case, in regards to that evaluation, Counsel for AGS submitted that Mr Allingham had failed to establish the reliability of the histories relied upon by the medical witnesses. That was because regarding the back, the medical witnesses’ opinions on causation relied upon inaccurate and deficient histories contradicted by the evidence.

  1. Mr Allingham’s Counsel conceded some doctors did not have a full history. However, it was submitted that the evidence about Mr Allingham’s prior low back trouble was not so significant as to invalidate the medical opinions.

  1. I now turn to assess the evidence in that regard and to make my findings.  

  1. First, as regards the pre-existing pathology, the following investigations were tendered into evidence by AGS:

a.   A CT lumbar spine scan of 13 June 2007 showed a protrusion at L4/5 with slight thecal indentation and L4/5 facet arthropathy.

b.   A CT lumbar scan of 12 February 2009 showed disc bulges at L4/5 (mild) and at L5/S1 (moderate) upon clinical presentation involving right-sided sciatica.

c.    A CT scan lumbar spine scan of 23 June 2017 demonstrated multi-level disc degeneration involving moderate facet joint disease at multiple levels including L3/4. That was recorded to be in the context of clinical presentation of ‘worsening pain in the lower back’.

  1. Second, the progress notes  at Tullamarine also recorded episodes of low back pain occurring in 2007, 2009 and 2017 around the time of the scans.

  1. Third, about a year before the work with AGS, in May 2018, Mr Wong, in an IME report of 30 May 2018 (for the cervical spine claim) recorded complaints of long-standing lumbar back pain with occasional sciatica into the left thigh. These symptoms were aggravated by walking, standing for more than 30 minutes, bending, sitting and driving.

  1. Then, about a month after, on 18 June 2018, Mr Allingham conceded he complained to his GP of low back pain after ‘getting off the couch’ which was worse the next morning. Initially, Mr Allingham denied under cross-examination that this episode was typical of his low back pain, saying it was a ‘one off’.

  1. However, he directly contradicted that evidence when, later in cross-examination, he conceded that, by the time he started with AGS, he had long-standing low back pain for which he saw his GP from time to time and took medication.

  1. There was also a reference to low back issues (regarding weight management) in February 2019.

  1. For completeness, at Greenvale Medical Centre, where Mr Allingham also attended on and off between March 2014 and December 2019, there was at least one recorded complaint of low back pain in 2015.

  1. On my reading of the Tullamarine notes, at least one occasion (15 May 2007) which referred to pain down the left leg.

  1. That was the evidence regarding the prior back history.

  1. To my mind, when considered overall, that evidence is far more consistent with Mr Allingham’s concession under cross-examination of long-standing low back pain rather than his evidence-in-chief that he had only niggles.

  1. I would accept it is possible that, at least a partial (although not an adequate) explanation for Mr Allingham minimising the low back trouble, was by contrast to his serious, and also long-standing, cervical spine injury and fusion surgery.

  1. I now turn to examine the histories relied upon by the medical witnesses.

  1. Counsel for AGS submitted that Dr Hussain’s opinion on causation of the back injury of limited weight. It is indeed perplexing that Dr Hussain (in his 17 November 2020 report) stated there was ‘no record of such problem before’ with respect to back and left-sided sciatic pain.

  1. It is plain that Dr Hussain has, unhelpfully, not grappled at all in any of his reports with either: the underlying lumbar pathology as demonstrated on prior scans; nor with prior episodes of back pain especially in 2017 and 2018.

  1. Dr Akil, the treating neurosurgeon, opined that the diagnosis was aggravation of underlying lumbar spondylosis with resulting lateral recess stenosis. That opinion was arrived at absent any of the prior lumbar imaging or reports. Additionally, he based his opinion on a history of left sided low back pain that originated in July 2019.

  2. Therefore, I must reject Dr Akil’s opinion that  Mr Allingham ‘did not have any significant past medical history that could be contributory to his lower back condition’. That is plainly wrong on the evidence.

  1. Dr Kennedy opined that the diagnosis of the back condition was aggravation of underlying lumbar spondylosis. However, he also had none of the prior lumbar imaging  and relied on a history of ‘essentially asymptomatic’ lumbar spondylosis. Accordingly, I consider I also must reject Dr Kennedy’s opinion.

  1. For completeness, pausing here, I find it surprising that Dr Kennedy’s own prior report from 2017 for the cervical spine claim was not drawn to his attention by Mr Allingham’s lawyers. Rather it was left to AGS’ lawyers to tender that into evidence.

  1. Mr Kossman opined the diagnosis related to the work on 10 July 2019 was lumbar spondylosis in the form of multi-level disc protrusion. He also assessed Mr Allingham without any of the prior lumbar imaging or reports, however he did have a history of ‘low back problems  over the years’ . The history he had was of niggling low back pain on exertion. To my mind, as I have said, that history was not consistent with the whole of the evidence.

  1. With respect to Mr Kossman’s report, I agree with Counsel for AGS that there was a marked contrast between his recording of the impact and severity of symptoms he considered relevant to the work on 10 July 2019 and those he did not.

  1. Moreover, Mr Kossman recorded that, at assessment on 1 August 2022, Mr Allingham complained mostly about neck and left shoulder pain with nine complaints being unrelated to the work of 10 July 2019. They included: neck and left upper limb pain; pins and needles; headaches; burning occipital pain; and vertigo. By contrast, the only complaints apparently related to the work on 10 July 2019 were: difficulty putting on shoes and socks; showering; and psychological sequelae. None were back pain as such.

  1. Mr Menz, the IME orthopaedic specialist who assessed Mr Allingham for the Agent in March 2020 soon after the back claim was lodged, found on examination, a limited range of lumbosacral movement. He accepted that Mr Allingham had sustained a back injury as a result of lifting bollards on 10 July 2019. He declined to make a formal diagnosis, given the lack of imaging or investigation. He had a history of Mr Allingham ‘never’ having had significant back problems before. He also had no history of the cervical fusion. Unsurprisingly, he could not say whether the back injury was new or an aggravation. No supplementary opinion was sought from Mr Menz based the imaging.

  1. Dr Bones was provided with all the prior lumbar radiology. She opined the diagnosis was chronic low back pain and dysfunction on a background of degenerative constitutional lumbar spondylosis with possible left-sided radiculopathy.  She had a history of low back ‘soreness’ in 2007 and nothing ‘drastic’ since including being ‘very active and very mobile’ before starting the work with AGS on 2 July 2019.

  1. I find that history is wholly inconsistent with the evidence overall including: Mr Allingham’s own evidence under cross-examination; the history and complaints given to Mr Wong in May 2018 that low back pain affected sitting, driving and standing; and the evidence that he was registered with a disability employment agency.

  1. Even, accepting as Counsel for Mr Allingham submitted, there had been some improvement evidenced by the very fact that he registered for a return to work, I am unable to conclude, on the whole of the evidence, that Mr Allingham was ‘very active and very mobile’ before starting the work with AGS on 2 July 2019.

  1. Mr Siu was provided with all prior lumbar (and cervical) radiology reports. He recorded a history of symptomatic cervical spondylosis but of no prior back complaints. Mr Siu, alone of the examiners, carefully assessed the progression of degenerative change between the 2017 lumbar MRI and that of April 2020. He considered the worsening of the L4/5 disc prolapse and facet joint disease by April 2020 was ’the natural history’ of the condition. He did not consider the progression of the disease was caused by  the work on 10 July 2019.

  1. Mr Siu did accept it was ‘possible’ there was a soft tissue injury aggravating the pre-existing spondylosis which would resolve in a matter of weeks to months.

  1. Nevertheless, it is true Mr Siu was cognisant of the factual dispute over whether bollards were handled on 10 July 2019. He appears to have accepted AGS version of the work on 10 July 2019 being ‘light’ whereas I have concluded on the evidence that work on 10 July 2019 did involve handling concrete bollards.

  1. Mr Grossberg accepted it was likely the back pain and left-sided sciatica were related to the lifting of the bollard. He appears to have been provided with none of the prior radiology and had a history similar to that given to Mr Kossman of episodic  ‘niggling pain’.

  1. Thus, pausing here, I must reject Mr Allingham’s Counsel’s submission that the prior back issues were of such insignificance that the deficient histories and incomplete information did not undermine the opinions of the medical witnesses.  To my mind, their opinions were indeed undermined.

  1. I now turn to the factors in cl.25 of Sched 1 of the Act.

  1. First, with respect to sub-clauses (a) to (c), I refer to my conclusion about the nature of the work and the task performed on 10 July 2019 of squatting and manually moving concrete bollards over about half a day.

  1. Second, with respect to sub-clause (d) and the probable development of the injury occurring if that employment had not taken place, it seems to me the evidence was overwhelming regarding the pre-existing and underlying vulnerability of Mr Allingham’s lumbar spine.

  1. As far back as 2007 and 2009, and again in 2017, imaging demonstrated degenerative and progressive changes at one or more levels of the lumbar spine. The lumbar pathology was certainly not asymptomatic but rather gave rise to the following: persisting episodes of back trouble as demonstrated by the clinical notes (including in June 2017 when low back pain was ‘worsening’); the range of impacts referred to by Mr Wong in May 2018; and according to Mr Allingham’s own evidence, fairly continuous and long-standing back trouble that was unresolved in July 2019.

  1. An example of the specific vulnerability of the lumbar spine was demonstrated by the significant flare up of low back symptoms in  June 2018 after an activity involving almost no physical exertion (getting up off the couch at home).

  1. With respect to sub-clauses (e) and (f), while Counsel for AGS submitted that Mr Allingham’s diabetes and weight issues were relevant matters, I do not consider they were relevant to the dispute over liability for the back.

  1. As for sub-clause (g), there was no evidence about activities outside the workplace relevant to this case. For the reasons stated, I reject Mr Ezzat’s evidence that Mr Allingham complained of back pain on the morning of 10 July 2019 due to mowing the lawn at home.

  1. Again, applying the St Mary’s School v Askwith guidance in resolving an essentially factual enquiry, the question being one of degree, I conclude that Mr Allingham, having a vulnerable and symptomatic lumbar spine, suffered an injury to his back arising out of or in the course of the work on 10 July 2019. Referring back to my findings regarding injury, I conclude that employment on 10 July 2019 was, in fact, a significant contributing factor to a temporary and since resolved aggravation of pre-existing and underlying degenerative lumbar pathology.

  2. However, weighing the whole of the evidence, I am simply not satisfied that the half day of heavy work on 10 July 2019 was, after a limited period of time, still a significant contributing factor to the aggravation of the progressive underlying lumbar pathology. By that, I mean to a progression of the disease as between the June 2017 CT scan and the April 2020 MRI scan nor to the progression seen on the CT lumbar scan of 26 October 2022.

  3. For the avoidance of doubt, I base my conclusion on my own factual findings, on Mr Allingham’s own evidence, on Dr Hussain’s and Mr Menz’s opinion that there was a back injury and Mr Siu’s assessment of the progressive, degenerative nature of the lumbar disease.  

  4. I now turn to the question of at what point the aggravation likely did in fact resolve.

  5. Given the reservations I have expressed regarding both the reliability of Mr Allingham’s evidence and the opinions of the medical witnesses, I turn to the progress notes of Tullamarine Medical Practice.

  6. According to those notes, it is apparent that Mr Allingham complained more or less consistently of back pain until 7 December 2020 and not at all thereafter (at least up until February 2022 when the notes as tendered into evidence cease).

  7. Certainly for much of this period Mr Allingham prescribed serious pain medication (oxycodone) and it is unclear whether that is for cervical pain or back pain or some combination.

  8. Nevertheless, in August 2021, Mr Allingham requested a certificate for the hernia and I also note Mr Kossman’s assessment that the cervical symptoms were far more prominent than any back complaints.

  9. For these reasons, on the evidence before me, I consider there is insufficient evidence to support a conclusion that the back condition relevant to the work on 10 July 2019 persisted beyond 7 December 2020.

  10. I therefore so find.

Capacity

  1. Essentially for the reasons already stated, taking into account my findings regarding injury, I conclude that the weight of evidence supports a finding that Mr Allingham had no capacity for his pre-injury duties from 5 August 2019 resulting from, or materially contributed, to by the hernia condition. 

  1. Having been unable to have the surgery to date, it is likely that that the hernia condition has continued to materially contribute to Mr Allinghams’ capacity to perform the pre-injury duties he was performing with AGS.

  1. As recently as September 2023, Mr Allingham told Mr Sui, he was ‘more concerned about his hernia at the moment’. On work capacity, Mr Sui deferred to the opinion of the general surgeon. Mr Grossberg noted that, having not performed a physical examination, it was difficult to comment on whether he is able to do his pre-injury work. I have already noted he did not have complete or accurate information regarding Mr Allingham being assessed as requiring hernia surgery and he specifically states that if this in fact is a significant hernia then he would require surgery to return to work. Given the pre-injury employment duties included bending, carrying and lifting, Dr Bones, an occupational physician, opined that there was no capacity for his pre-injury employment and prognosis as to expectations as to when he will be fit are guarded pending possible further treatment.

  1. I note in the opinion of Mr Nguyen that, within six to eight weeks of surgical repair of the hernia, there would be recovery to normal capacity.

  1. Also for the reasons already stated, taking into account my findings regarding the back injury, I conclude that the weight of evidence supports a finding that Mr Allingham had no capacity for his pre-injury duties from 5 August 2019 resulting from or materially contributed to by the back condition up until, but not beyond, 7 December 2020.

  1. In March 2020, Mr Menz accepted there was no capacity for pre-injury duties as at March 2020 with respect to the back. I take into account that Dr Wong in May 2018 had opined that, albeit with intermittent low back pain and occasional right leg radiculopathy, Mr Allingham had been able to work with that condition for years.

Conclusion

  1. For these reasons, I conclude as follows:

a.   Mr Allingham did suffer injury arising out of or in the course of employment on 10 July 2019.

b.   The nature of the medical condition relevant to the claimed hernia condition was bilateral indirect inguinal hernias as demonstrated on the groin ultrasound of 22 July 2019.

c.    Mr Allingham did suffer a back injury arising out of or in the course of employment on 10 July 2019.

d.   The nature of the medical condition relevant to the claimed back condition is a temporary and since resolved aggravation of pre-existing, underlying and symptomatic degenerative lumbar pathology.

e.   Employment (with a nominated injury date of 10 July 2019) was a significant contributing factor to the aggravation of the underlying and pre-existing lumbar condition up until, but not after, 7 December  2020.

f.     There was an incapacity to perform pre-injury duties from 5 August 2019 and such incapacity resulted from or was materially contributed by the hernia condition until given the need for surgery.

g.   There was an incapacity to perform pre-injury duties from 5 August 2019 and such incapacity resulted from or was materially contributed by the back condition up until but not beyond 7 December 2020.

h.   There is an entitlement to past and ongoing medical and like expenses under the Act with respect to the hernia condition.

i.     There is an entitlement to past medical and like expenses under the Act with respect to the back condition up until but not beyond 7 December 2020.

  1. I will seek input from the parties as to final orders.

M A HOARE

8 December 2023


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