Arora v Toyota Motor Corporation Australia Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Arora v Toyota Motor Corporation Australia Limited [2023] NSWPIC 303
APPLICANT:	Jasvinder Arora
RESPONDENT:	Toyota Motor Corporation Australia Limited
Member:	Rachel Homan
DATE OF DECISION:	27 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation and incurred treatment expenses for bilateral hernia injury; whether hernias pre-existing; whether employment a substantial contributing factor to injury; extent of incapacity where unrelated medical conditions; Held – applicant sustained an injury pursuant to sections 4(a) and 9A; certificates of capacity were not reliable evidence of the extent of incapacity resulting from injury; opinion of applicant’s expert preferred; awards for the applicant for weekly compensation and incurred treatment expenses.
determinations made:

The Commission determines:

The applicant sustained an injury in nature of bilateral inguinal hernias on 4 May 2021 pursuant to s 4(a) of the Workers Compensation Act 1987.
Employment with the respondent was a substantial contributing factor to the injury pursuant to s 9A of the Workers Compensation Act 1987.
The applicant had no current work capacity between 10 August 2021 and 28 August 2021 as a result of the injury on 4 May 2021.
The applicant had current work capacity between 29 August 2021 and 18 October 2021 as a result of the injury on 4 May 2021.

The Commission orders:

The respondent to pay the applicant weekly compensation as follows:
i.from 10 August 2021 to 28 August 2021 pursuant to s 37(1) of the Workers Compensation Act 1987 at $991.75 per week;
ii.from 29 August 2021 to 30 September 2021 pursuant to s 37(3)(a) of the Workers Compensation Act 1987 at $265.95 per week, and
iii.from 1 October 2021 to 18 October 2021 pursuant to s 37(3)(a) of the Workers Compensation Act 1987 at $274.20 per week.
The parties have liberty to apply in respect of the calculations above.
The respondent to pay the applicant compensation pursuant to s 60 of the Workers Compensation Act 1987 in respect of any medical and related treatment expenses which were reasonably necessary as a result of the hernia injury upon production of accounts, receipts and/or Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Mr Jasvinder Arora (the applicant) was employed by Toyota Motor Corporation Australia Limited (the respondent) as a storeman. The applicant claims that on 4 May 2021 he sustained a bilateral inguinal hernia injury while lifting heavy items at work.
At the time of the alleged injury, the applicant was performing suitable duties as a consequence of an earlier injury.
Liability for the hernia injury was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 1 July 2021.
The applicant underwent surgical repair of the hernias on 28 July 2021 and eventually returned to work.
On 30 March 2023, the applicant commenced the present proceedings by lodgement of an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (the Commission). The applicant seeks a closed period of weekly compensation and compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for his incurred medical and related treatment expenses.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 8 June 2023 in Sydney. The applicant was represented by Mr Ty Hickey of counsel instructed by Mr Phillip Ferraro. The respondent was represented by Mr Tom Grimes of counsel, instructed by Ms Jessica Liu. A representative from the insurer was present.
During the conciliation conference, leave was granted to the applicant to amend the ARD to claim weekly compensation pursuant to s 37 of the 1987 Act from 10 August 2021 to 18 October 2021. The pre-injury average weekly earnings (PIAWE) rate was agreed at $1,239.69. The parties agreed that the claim for incurred s 60 expenses could be dealt with by way of a general order should the applicant be successful on the liability dispute.
An objection was raised by the applicant to the admission of a supplementary report dated 19 May 2023 by the respondent’s Independent Medical Examiner (IME) Dr Siddarth Sethi. After hearing submissions from the parties on the record, a decision was made declining the respondent’s application to have the report admitted pursuant to r 67(3). Reasons for the decision were given orally and recorded.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury pursuant to ss 4 and 9A of the 1987 Act;
(b) the extent and quantification of any incapacity resulting from a workplace injury during the period of weekly compensation claimed, and
(c) the entitlement to compensation for the incurred medical and related treatment expenses claimed pursuant to s 60 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    document attached to an Application to Admit Late Documents lodged by the respondent on 2 May 2023;
(d)    wages schedule lodged by the applicant on 2 June 2023;
(e)    documents attached to an Application to Admit Late Documents lodged by the applicant on 5 June 2023, and
(f)    documents attached to an Application to Admit Late Documents lodged by the respondent on 5 June 2023, apart from the report of Dr Sethi dated 19 May 2023.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made on 22 January 2021 and 9 January 2023.
The applicant said he had been employed by the respondent as a storeman for 10 years on a full-time basis. The applicant’s job involved picking and packing duties and operating a forklift. This included picking and packing items weighing up to 20kg and lifting boxes of 5 litre containers of oil.
In or about April or May 2019, the applicant began to suffer lower back pain as a result of his work duties. On 20 May 2019, the applicant felt a click and pain in his left knee when picking up boxes weighing 20kg.
The applicant consulted Dr Eric Lim on 21 May 2019 and reported symptoms in a number of body parts. The applicant was referred to an orthopaedic surgeon who referred the applicant for injections into the left knee. Surgery to the left knee was later recommended.
As a result, the applicant had been working light duties with restrictions including, lifting less than 10kg, standing for a maximum four hours, and using a forklift for a maximum of three hours.
On 4 May 2021, the applicant was unloading large boxes of disc brakes which had been placed on a platform via a forklift. The applicant was constantly lifting and twisting. Whilst lifting one of the brakes, the applicant felt pain instantly in his groin area.
The pain was bad enough for the applicant to stop working. The applicant reported the injury to his supervisor and went to the first aid room.
The applicant returned to work the next day as his pain was not as severe. The applicant went to see his general practitioner and was referred for a scan, which the applicant underwent on 6 May 2021.
The scan showed a hernia and the applicant’s general practitioner gave him a workers compensation certificate on 10 May 2021. The applicant was referred to a specialist, Dr Pathma-Nathan.
Immediately prior to the injury, the applicant had been working eight hours per day, four days per week due to his previous injuries. In early June, due to the pain in his groin, the applicant stopped working entirely.
On 28 July 2021, Dr Pathma-Nathan performed surgery in the form of a laparoscopic repair of bilateral inguinal hernias. The applicant remained off work entirely for several months while recuperating from the hernia surgery.
The applicant said that following the hernia surgery, he was in a great deal of pain. The applicant had to move very tenderly and could not sit, stand, bend, or twist without restriction. The applicant was of the view that there was nothing he could have done in this period. Even a desk job would have been impossible due to his pain level and difficulty sitting down.
The applicant said he had never previously had a hernia or any pain in his groin prior to the incident on 4 May 2021. The applicant had no history of any lump in either groin.

Treating evidence

In a consultation with his general practitioner, Dr Ghulam Sachawars, on 6 May 2021, the applicant was noted to have complained of a dental issue and “R groin while bending and lifting.” The applicant was referred for an ultrasound investigation of a possible right inguinal hernia.
The report of an ultrasound of the right groin on 7 May 2021 identified a right indirect inguinal hernia containing fat.
In a clinical note made on 10 May 2021, Dr Sachawars diagnosed a right inguinal hernia related to heavy lifting. A SIRA certificate of capacity was issued.
On 17 May 2021, Dr Sachawars again took a history of heavy lifting related right inguinal hernia and referred the applicant to a specialist, Dr Nimalan Pathma-Nathan.
The applicant saw Dr Sachawars again on 19 May 2021 in relation to balanitis. The applicant was provided with a prescription for medication and referred for pathology testing.
Dr Pathma-Nathan, prepared a report for Dr Sachawars on 31 May 2021, which stated:
“Thank you for sending Jasvinder to see me. I saw him at Lakeview Private Hospital on 31 May 2021. He presents with a work-related inguinal hernia. He works in a warehouse and lifts 10 - 20 kg as part of his job. He is currently on restricted duties following a knee injury and is only lifting about 10 kg.
On 03 May 2021 while lifting and moving some objects he noticed some pain in the right groin area. He continues to have niggling pain but cannot feel any obvious mass. Ultrasonography confirms a small hernia on that side. He is recently getting some pain on the left side as well.
…
On examination he has bilateral inguinal hernias.
I am arranging for him to have an ultrasound to have look at the left side but I have booked him for a laparoscopic repair.”
The report of an ultrasound of the left groin performed on 3 June 2021 identified an indirect inguinal hernia.
On 7 June 2021, Dr Sachawars discussed with the applicant the results of the ultrasound of the left groin.
At a regular review on 14 June 2021 the applicant was prescribed Panadeine Forte.
On 26 July 2021, Dr Sachawars noted a recent admission to hospital for loin/abdominal pain and balanitis. The applicant was advised to continue with antibiotic treatment.
An operation report dated 28 July 2021 recorded that the applicant underwent laparoscopic repair of bilateral inguinal hernias at Westmead Private Hospital by Dr Pathma-Nathan.
On 19 August 2021, Dr Pathma-Nathan reported:
“I saw Jasvinder at Westmead on 19 August 2021. He has had a few issues since his surgery. He has been having some pain in the groin as well as some paraesthesia in the lateral femoral cutaneous nerve distribution on both sides. His wounds have healed well and he is slowly returning to full activities. He is having ongoing issues with his phimosis and has requested a circumcision so I have made the appropriate arrangements.”
On 31 August 2021, the applicant reported:
“R anterior thigh pain
Lower abdomen and scrotal pain after hernia repair”
On 13 September 2021, Dr Sachawars noted that the applicant had undergone a circumcision on 7 September 2021 and now had a slight infection.
Dr Pathma-Nathan prepared a report for the applicant’s solicitors on 17 May 2023. Dr Pathma-Nathan reported the history of right groin pain after lifting at work on 3 May 2021. Clinically, Dr Pathma-Nathan felt the applicant had bilateral inguinal hernias which was confirmed on ultrasound. The applicant underwent surgery on 28 July 2021 which was uneventful. Dr Pathma-Nathan saw the applicant post-surgery on 19 August 2021 and had not seen him since. Dr Pathma-Nathan commented:
“His work involves lifting up to 20 kg/day and I am certain that this has contributed to his hernias. There were no other risk factors.
Post operatively the instructions are 2 weeks of no lifting and then 2 weeks of light duties which is less than 10 kg. Thereafter there are no restrictions.”

Certificates of capacity

Prior to the injury that was the subject of these proceedings, Dr Morgan Mo issued a certificate of capacity dated 21 April 2021 in respect of a bilateral knee, cervical spine, and lumbar spine injury with a date of 20 May 2019. The applicant was certified as having capacity for suitable duties eight hours per day, four days per week. The applicant’s lifting capacity was restricted to less than 10 kg, non-repetitive and he had a standing tolerance of one hour before a five-minute break.
The applicant’s restrictions were set out in more detail in a Suitable Duties Plan, dated 21 April 2021.
Dr Sachawars issued a number of certificates of capacity in the period of weekly compensation claimed in these proceedings.
Between 17 May 2021 and 21 May 2021, the applicant was noted to have no current work capacity.
From 24 May 2021 to 31 May 2021, the applicant was certified fit for suitable duties for five hours a day, four days per week.
Between 1 August 2021 and 4 October 2021, the applicant was certified as having no current work capacity.
From 5 October to 18 October 2021, the applicant was certified as having capacity to perform suitable duties five hours per day, four days per week.

Dr Berry

The applicant relies on medico-legal reports prepared by general surgeon, Dr Neil Berry dated 28 March 2022 and 29 September 2022.
Dr Berry took a history that on 4 May 2021, the applicant was unloading large boxes of disc brakes. These were placed on a platform by forklift. Then the applicant had to lift the brakes individually out of the box and place them on a trolley behind him. The brakes weighed 7 to 8kg each. This meant the applicant was constantly lifting and twisting. The applicant recalled that when lifting one of the brakes and twisting, he experienced pain in the right groin.
Dr Berry noted the subsequent investigations through ultrasound and the surgery performed on 28 July 2021.
Dr Berry noted that approximately one month after the surgery, the applicant was readmitted for further surgery to correct an unrelated phimosis issue. The applicant was also admitted for surgery to his left knee on 19 October 2021. The applicant returned to work after the knee surgery.
Dr Berry gave the opinion,
“…I refer you to the O’Rourke Brothers ‘Special Article’ published in the ANZ Journal and I would consider that this patient fits the ‘Criteria’ in Table 2 and therefore has a work related hernia and this has been fully repaired.”
Dr Berry noted that the applicant was left with a permanent lateral cutaneous nerve injury causing impairment. The tenderness in the applicant’s groin was expected to gradually settle.
Dr Berry gave the opinion that any current incapacity was determined by the left knee injury. From the viewpoint of the hernia repair, the applicant was capable of returning to full duties.
In his supplementary report, Dr Berry was asked to comment in more detail on the duration of the applicant’s incapacity for work following his hernia surgery. Dr Berry responded:
“Following laparoscopic hernia surgery, Mr Arora is required to be off work for approximately one month and thereafter he can make a graduated return to work, initially avoiding heavy lifting but at three months he should be able to carry out full duties. Thereafter, if he is doing heavy work there is a risk of recurrence but this is very low.”
Dr Berry was asked to respond to the opinions given by the respondent’s IME, Dr Sethi, that the hernias developed independently of the applicant’s workplace duties. Dr Berry responded:
“Mr Arora gives a history that on 4 May 2021 he was unloading large boxes of disc brakes and while lifting the brakes individually out of a box and placing them on a trolley he was constantly lifting and twisting and experienced sharp pain in his groin. Therefore, this was in fact a specific incident and the claimant was subsequently proven to have hernias, I cannot see how this has possibly developed independently.
…
I agree that hernias are caused by weakness of the abdominal wall muscles and you will note in the paper which I forwarded with my report by the O’Rourke Brothers there are a number of different reasons given for the development of hernias including a congenital defect in the connective tissues. However, in certain episodes where there is a specific incident of lifting and twisting and the onset of pain and production of a hernia, this is considered to be work caused.”
Dr Berry said the hernia surgery was necessary. As the applicant was now much more comfortable and to avoid the risk of strangulation.
Dr Berry said the hernias were not pre-existing, when the applicant had no history of a lump in either groin and no history of symptoms.
As the pain came on while carrying out lifting and twisting movements in the course of his duties, employment was a substantial contributing factor to the injury.

Dr Sethi

The respondent relies on medico-legal reports prepared by gastroenterologist and hepatologist, Dr Siddharth Sethi, dated 30 June 2021 and 2 May 2023.
In his first report, Dr Sethi took a history of the applicant experiencing sharp pain in the right groin on 4 May 2021. The pain had persisted and was felt constantly. The applicant had also developed a mild left groin pain also. The applicant had not experienced similar pain in the past.
Dr Sethi noted that Dr Sachawars had diagnosed a hernia caused by “bending and lifting”. At the time of the injury, the applicant was on a return-to-work plan for back and knee injuries and was restricted to lifting no more than 10 kg and standing for no more than one hour before having a break.
Dr Sethi noted that the applicant had seen Dr Pathma-Nathan and was booked to undergo bilateral laparoscopic repair. The applicant’s symptoms of bilateral groin pain were persisting and he was taking analgesia.
Dr Sethi gave the opinion:
“In my opinion, Dr. Padma-Nathan's request for work cover funding to perform hernia repair is not reasonable as these hernias were not work related. It is highly unlikely that a single episode of lifting heavy boxes on 4/5/21 or prior to this caused Mr. Padma-Nathan to develop bilateral inguinal hernias. These hernias were almost certainly pre-existing and had likely been present for several months or years beforehand.
I am not aware of any scientific study that has conclusively demonstrated a causal relationship between heavy lifting and hernia development.
In my opinion, Mr. Arora is fully fit to work full time without any restrictions.
The prognosis is good. Mr. Arora's hernias are not strangulated hence there is no urgency for him to undergo repair on an urgent basis.”
Dr Sethi referred to two scientific articles on the relationship between development of hernias and single traumatic or strenuous events. Dr Sethi said hernias were caused by weakness of the abdominal wall muscles. There was no reasonable or plausible physiological mechanism whereby employment could have caused the applicant to develop both inguinal hernias.

Dr Sethi said the certificates of capacity were not a true reflection of the applicant’s current capacity for work. The hernias should not reasonably restrict him from working.
In his supplementary report of 2 May 2023, Dr Sethi noted that he had been provided with the reports of Dr Berry, the clinical records of Dr Sachawars and the clinical records of Dr Pathma-Nathan. Dr Sethi said his review of the additional materials did not change his opinion in the slightest. Employment did not play any causative role whatsoever.
In responding to Dr Berry’s reports, Dr Sethi stated
“In Page 3 of his report, Dr. Berry states ‘He has a specific incident where he lifted and twisted to place a brake disc and as he did so, he felt sudden onset pain of a tearing nature in the right groin.’ This does not prove that his hernia was work related. It is far more probable and likely, on the balance of probabilities, that the tearing pain in the right groin was from a muscle strain rather than a hernia forming at that point in time as Dr. Berry alleges.”
In response to the O’Rourke article cited by Dr Berry, Dr Sethi stated:
“The O’Rourke brothers special article is only one paper and the mere fact that he fits one criteria does not prove that he has a work related hernia. This paper does not represent widespread medical and scientific opinion. The overwhelming majority of established medical and scientific opinion holds that abdominal muscle weakness causes hernias and not heavy lifting. It is unreasonable and illogical to claim that Mr. Arora’s hernia is work related simply because he fits one criteria in a solitary scientific paper.”
With regard to Dr Berry’s comments in relation to the absence of prior symptoms or lumps in either groin, Dr Sethi commented:
“It is highly likely and extremely probable, on the balance of probabilities, that the claimant had hernias which were asymptomatic hence were not previously reported. I note that the left hernia was asymptomatic.”

Applicant’s submissions

The applicant noted the respondent’s reliance on the two reports from Dr Sethi. These raised an issue as to whether heavy lifting and twisting were capable of resulting in the hernia injury.
It was not in dispute that at the time of the injury the applicant was undertaking work which involved unloading boxes of heavy brake disks that weighed 7 to 8kg. In undertaking the work, the applicant experienced an onset of discomfort in the groin. The applicant said the pain was bad enough for him to stop working. The injury was reported to the employer and the applicant attended upon his general practitioner and was later referred for specialist treatment and ultimately surgery.
The applicant relied upon the opinion given by Dr Berry, who, after considering appropriate literature, found that lifting and twisting of the kind described by the applicant could give rise to a hernia.
The applicant noted that the general practitioner’s notes commenced in 2009 and contained no reference to a history of hernia injury or symptoms consistent with an underlying hernia. The clinical notes recorded a contemporaneous history of right groin pain while bending and lifting. The clinical notes suggested it was the general practitioner’s opinion that the hernia was related to heavy lifting.
The applicant’s specialist, Dr Pathma-Nathan, took a history of the applicant working in a warehouse and lifting weights in the course of that work. Following the surgery, the applicant was noted to have ongoing pain in the groin as well as some paraesthesia in the lateral femoral cutaneous nerve distribution on both sides. The applicant was noted to be “slowly” returning to activities.
The applicant observed that Dr Sethi’s report drew no distinction between the hernias on the left and right side. Dr Sethi considered both were constitutional. Dr Berry said both were caused by the subject injury.
The applicant conceded that there was a problem with the work history taken by Dr Pathma-Nathan in his report for the applicant’s solicitor in that at the time of the injury the applicant was not lifting 20kg at work. The applicant was, however, performing lifting at work. Dr Pathma-Nathan did not agree with Dr Sethi that the hernias could only be congenital. Quite clearly, Dr Pathma-Nathan accepted that the hernias were work-related and accepted the premise that they were related to lifting.
The applicant submitted that Dr Sethi’s reports were undermined by his yearning for scientific certainty. Dr Berry had identified medical literature in support of his opinion. Both experts took a history of a specific task and a specific onset of symptoms at that time.
The fact of some underlying predisposition to the development of hernias did not mean that the hernias were not compensable. There were multiple factors which may have given rise to or predisposed the applicant to developing a hernia. It was not medically controversial that hernias could be caused by lifting and twisting. As a specialist tribunal, the Commission had determined as much many cases.
The applicant submitted that Dr Sethi’s alternative proposition, that the onset of symptoms was caused by a muscle strain or tear, was not supported by the other evidence. In relying on Dr Sethi, the respondent sought to persuade the Commission on the balance of probabilities that the pain was caused by a condition other than the one which was treated.
The applicant submitted that there was nothing in Dr Sethi’s report which would convince the Commission that the common sense test of causation was not satisfied. The Commission would not be satisfied that there was no medical support for a link between workplace lifting and twisting and the onset of a hernia condition. The Commission would be satisfied that the applicant had sustained a bilateral hernia injury. The surgery that followed was reasonably necessary as a result of that injury.
With regard to the claim for weekly compensation, the applicant relied on the certificates of capacity issued by Dr Sachawars. The applicant conceded that there was an increase in capacity from 5 October 2021 to 20 hours per week.
The applicant noted that although Dr Pathma-Nathan had anticipated that the applicant would be fit to return to work around four weeks after the surgery, the applicant was not seen again by Dr Pathma-Nathan after mid-August 2021. The applicant was seen by Dr Sachawars who found he remained incapacitated. The applicant submitted that the certificates provided sufficient evidence of his incapacity.
The applicant noted the expert opinions on incapacity. Dr Sethi’s view that the applicant would have been fit to continue working was inconsistent with the views of the applicant’s general practitioner and treating surgeon. Dr Berry considered the applicant would be fit to return to his pre-injury duties after three months.

Respondent’s submissions

The respondent noted that the description of injury in the ARD indicated that the injury occurred when unloading large boxes of disc brakes. This was said to be inconsistent with the applicant’s statement evidence. The applicant’s evidence was of lifting individual bars or brakes out of boxes.
No objective evidence had been provided as to how heavy the brakes were. Dr Berry recorded that they individually weighed 7 to 8kg. The respondent queried whether lifting 7 to 8kg was appropriately described as “heavy” lifting.
The respondent noted the applicant’s pre-existing conditions at his knees and back. The applicant’s evidence was that he had undergone treatment for those conditions and had been placed on suitable duties at the time the injury was reported.
The respondent submitted that the opinions of Dr Sethi were supported by academic literature. Dr Sethi disagreed with the report relied on by Dr Berry and gave reasons for that opinion.
The respondent submitted that the Commission would disregard the opinion of Dr Pathma-Nathan on the basis that he had been given an incorrect history of lifting up to 20kg. Having regard to the authority in Paric v John Holland (Constructions) Pty Ltd,[1] there was not a fair climate for the acceptance of Dr Pathma-Nathan’s opinion on causation.
[1] Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85.
The respondent noted the increase in the applicant’s certified capacity from 5 October 2021.
The respondent noted that the certificates of capacity were inconsistent with Dr Pathma-Nathan’s view that the applicant would be capable of returning to pre-injury duties much sooner.
The applicant underwent unrelated surgery. The Commission would find it difficult to accept that any incapacity related to the work injury in that period. Rather it was due to the unrelated condition. The effects of the unrelated surgery were not addressed in the treating evidence, or the applicant’s statement evidence.
Dr Sethi’s view was that the hernias did not cause any incapacity.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act.
The term ‘injury’ is defined in s 4:
“In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
For compensation to be payable in respect of the injury, the applicant must also satisfy s 9A of the 1987 Act, which provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(1)     No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)     The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(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,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f)    the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)     This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
It is the applicant who bears the onus of establishing on the balance of probabilities that he sustained a bilateral hernia injury which meets the requirements of ss 4 and 9A of the 1987 Act. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[2] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[2] [2008] NSWCA 246.
The undisputed evidence in this case is that on 4 May 2021, the applicant experienced a sudden onset of pain in his right groin area which was sufficiently acute as to cause him to stop work, go to the first aid room and report the matter to his supervisor.
There is also no medical dispute in this case that the applicant had bilateral inguinal hernias. Although there were different views expressed by the respondent’s IME, Dr Sethi as to the cause of the hernias, whether the hernias had caused incapacity and whether they gave rise to a need for surgical treatment, Dr Sethi agreed with the applicant’s doctors that the applicant in fact had bilateral inguinal hernias.
The real dispute in this case is as to the contribution of the applicant’s employment duties to the hernia conditions.
Although there are references in the materials to the applicant’s duties involving lifting weights of up to 20kg, it is clear, considering the evidence as a whole that on 4 May 2021, the applicant was performing suitable duties, which included a restriction on lifting of no more than 10kg.
Although the respondent’s submissions queried whether the description of injury in the ARD was accurate, I accept the applicant’s statement evidence that at the time of the event in question, he was lifting individual disc brakes out of boxes and that this required repetitive twisting and lifting. The statement evidence is consistent with the history first recorded by Dr Pathma-Nathan and that recorded by Dr Berry. Accordingly, I place no weight on any inconsistency or inaccuracy in the pleading in the ARD.
A more detailed account of the task being performed on 4 May 2021 was provided in Dr Berry’s first report. Dr Berry recorded that the brakes weighed 7 to 8kg. Although the respondent submitted that this history had not been verified by any objective evidence, I note that the respondent, despite the opportunity to do so, has not lodged any evidence to contradict the history provided to Dr Berry. It also matters not whether 7 to 8kg is properly characterised as “heavy”. Dr Berry has based his opinion on a history of a weight of 7 to 8kg. Dr Berry described the applicant lifting the brakes out of the boxes and then twisting to place them on a trolley behind him.
The history considered by Dr Berry appears to be more precise than that recorded by Dr Sethi in his first report. Dr Sethi noted the reference to “bending and lifting” in Dr Sachawars’ clinical notes. Dr Sethi expressed the view that it was highly unlikely that “a single episode” of “lifting heavy boxes” had caused the development of bilateral inguinal hernias. Dr Sethi formed the view that the hernias were pre-existing.
It is not apparent from this report, however, that Dr Sethi fully understood the mechanism by which the applicant asserted the injury had occurred. The applicant was not just lifting boxes, he was lifting relatively heavy items out of boxes and twisting to place them on a trolley behind him. The applicant’s evidence was that he had been performing this task repetitively when he experienced the onset of pain.
Nor did Dr Sethi appear to adequately grapple with the applicant’s consistent reports of a sudden onset of pain, sufficient to cause him to stop work, in the performance of this task, when expressing his view that the hernias were pre-existing and had likely been present for several months or years.
Dr Sethi did have the benefit of reading Dr Berry’s reports by the time of his supplementary report. Dr Sethi appeared to agree in that report that some form of injury had occurred but attributed the applicant’s symptoms to a muscle strain. As the applicant’s submissions noted, there is nothing else in the medical evidence before the Commission to suggest that a muscle strain was responsible for the applicant’s symptoms.
The general practitioner who saw the applicant two days after the event, formed the view that the applicant’s right groin pain was the result of a hernia. This was confirmed on radiological investigation. The applicant’s specialist, Dr Pathma-Nathan reached the same view following a clinical examination. The presence of bilateral hernias was confirmed on a further ultrasound. There is nothing in the evidence from the applicant’s general practitioner or specialist to suggest that a muscle strain may be responsible for the symptoms.
In all the circumstances, I do not accept Dr Sethi’s suggestion that the injury was in the nature of a muscle strain.
Both of the applicant’s treating doctors have provided evidence consistent with the claim that the sudden onset of pain on 4 May 2021 was due to hernias caused by the applicant’s work duties. This is evident from Dr Sachawars’ certificates of capacity and comments made in his clinical records.
Dr Pathma-Nathan’s contemporaneous reports noted a relationship to work and the onset of pain whilst moving objects. Although, as noted above, there were some inaccuracies in the history set out in the report for the applicant’s solicitors dated 17 May 2023, Dr Pathma-Nathan appears to have recorded a broadly accurate history in his first treating report, dated 31 May 2021. In that report, Dr Pathma-Nathan noted that the applicant was currently on restricted duties and was only lifting about 10kg. It was noted that the applicant was lifting and moving objects when he noticed pain.
Dr Berry also formed the view that the hernias were work-related. Dr Berry cited medical literature in support of his opinion. Noting the specific incident described by the applicant and the subsequent confirmation of hernias on investigation, he could not see how the hernias could possibly have developed independently.
Dr Berry agreed with Dr Sethi that hernias could also be caused by weakness in the abdominal muscles and acknowledged that there may be a congenital reason for hernias developing. Any predisposition to the development of hernias would not, in itself, mean that there was not an injury or preclude a finding that employment was a substantial contributing factor to the injury.
It is a fundamental principle that employers must take workers as they find them.[3] Furthermore, s 9A does not required that employment be the only contributing factor to the injury. For example, in Kelly v Secretary, Department of Family and Community Services[4] Emmett JA stated at [43]:
“… Section 9A requires that the employment concerned be a substantial contributing factor to the injury. That use of the indefinite article admits of the possibility of other, and possibly non-employment-related, substantial contributing factors. Whilst the strength of the connection between the employment and the injury is the question in issue, the determination of that question is an evaluative one, leaving a broad area for the personal judgment of the fact finder. Being an evaluative matter involving questions
of impression and degree, a finding as to relative contributing factors is a finding of
[3] Spigelman CJ (Bryson AJA agreeing) in State Transit Authority (NSW) v Chemler[2007] NSWCA 249 at [40]; [2007] NSWCA 249; 5 DDCR 286).
[4] [2014] NSWCA 102.
fact (Badawi v Nexon Asia Pacific Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503 at [48]).”

I agree with the applicant’s submission that Dr Sethi’s reports place a great deal of weight on his view that there was a lack of scientific or medical evidence in support of a causal relationship between lifting and twisting and the development of hernias. Whilst that may have been a conclusion open on the particular reports cited by Dr Sethi, it is clear that there is also a body of medical opinion to support the contrary view.
Both of the applicant’s treating doctors have accepted a causal relationship between the applicant’s work duties and the development of the hernias. A qualified expert opinion to the same effect has been provided by Dr Berry. Dr Berry’s own view was apparently supported by the medical literature to which he referred. In the circumstances, I do not accept that there is no scientific basis for the view that the hernias were caused by the duties being performed by the applicant on 4 May 2021.
Weighing all of the evidence, I am satisfied the applicant sustained a personal injury in the course of employment on 4 May 2021 in the nature of the bilateral inguinal hernias.
I am further satisfied that the applicant’s employment was a substantial contributing factor to the development of the hernias having regard to the time and place of the injury and the particular employment tasks being performed at the time.
Whilst I accept that there is a possibility that a similar injury may have happened at a similar stage in the applicant’s life, there is no suggestion in any of the evidence before me that the hernias were previously symptomatic or discernible to the applicant. There is no suggestion that any other activity or aspect of the applicant’s lifestyle contributed to the development of the hernias.
I am satisfied that the bilateral hernia injury satisfies the requirements of ss 4(a) and 9A of the 1987 Act.

Treatment expenses

It follows from the findings above that the applicant will be entitled to compensation pursuant to s 60 of the 1987 Act for those treatment expenses which were reasonably necessary as a result of the hernia injury. There will be a general order for the respondent to pay such expenses in accordance with s 60 of the 1987 Act upon production of accounts, receipts and/or Medicare Notice of Charge.

Capacity

Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
The claim for weekly compensation was amended at the arbitration hearing to commence on 10 August 2021 in the second entitlement period pursuant to s 37 of the 1987 Act.
Section 37 of the 1987 Act provides:
“37 Weekly payments during second entitlement period (weeks 14–130)
(1)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)  the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.”
For the applicant to be entitled to weekly compensation pursuant to s 37(1) of the 1987 Act, he must demonstrate that he has, during the relevant period had “no current work capacity”. The expression, “no current work capacity” is relevantly defined in item 9 of Schedule 3 to the 1987 Act as follows:
“9 Meaning of ‘current work capacity’ and ‘no current work capacity’
(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.”
The expression “suitable employment” is defined in s 32A of the 1987 Act as:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a)     having regard to—
(i)  the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b)     regardless of—
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”
The applicant has provided certificates of capacity from Dr Sachawars, certifying him as having no current work capacity as a result of the injury, covering the period until 4 October 2021. Thereafter and until 18 October 2021, the applicant was certified as having capacity to perform suitable duties for 20 hours per week.
Consistently with his certificates of capacity, the applicant has provided evidence that during the period he was off work, there was little he could do due to his pain level and difficulty moving and sitting down.
There is, however, a tension between this evidence and the other medical evidence.
The clinical records indicate that during the relevant period, the applicant suffered with non-work-related conditions of balanitis and phimosis which required treatment and ultimately a circumcision surgery on 7 September 2021. That surgery was complicated by a post-operative infection. The clinical records and report of Dr Berry also indicate that the applicant was admitted for surgery to his left knee on 19 October 2021.
It is reasonable to assume, consistently with the respondent’s submissions, that both the knee condition and the circumcision surgery had some impact on the applicant’s capacity for work. The applicant’s evidence is, however, silent on the matter. There is no report from Dr Sachawars justifying his certifications in the context of these other conditions.
The certificates also suggest a much longer period of total incapacity than that anticipated by the specialists involved in the applicant’s case.
When he last saw the applicant on 19 August 2021, and noting some ongoing symptoms of pain and paraesthesia, Dr Pathma-Nathan reported that the applicant had healed well and was slowly returning to full activities. In his report for the applicant’s solicitor, Dr Pathma-Nathan stated that the applicant would have had no restrictions four weeks after the surgery. After two weeks, he could perform light duties of less than 10kg.
Dr Berry gave the opinion that after one month following the surgery, the applicant could make a graduated return to work, initially avoiding heavy lifting, but at three months he should be able to carry out full duties. It should be noted, however, that at the time of the injury, the applicant was not in fact performing his full duties. Rather, he was certified to work 32 hours per week with restrictions on lifting greater than 10kg and standing due to his knee and back conditions.
In Dr Sethi’s original report, he did not consider there should be any incapacity as a result of the hernias although I note that this opinion was given pre-operatively. No opinion on capacity was given in Dr Sethi’s second report.
It is certainly the case that incapacity can result from multiple conditions. The fact that the applicant may have been incapacitated by his circumcision surgery and knee condition would not preclude a finding that the applicant was also incapacitated and therefore entitled to weekly compensation as a result of the injury which is the subject of these proceedings.
This is, however, a matter on which some comment would have been appropriate from the applicant or Dr Sachawars, particularly given the period of total incapacity certified by Dr Sachawars significantly exceeded the expectations of both Dr Pathma-Nathan and Dr Berry.
On Dr Pathma-Nathan’s estimation, the period of total incapacity should have ended two weeks after the surgery, or by around 11 August 2021. On Dr Berry’s estimation, the applicant would have had capacity to engage in suitable duties by 28 August 2021. Dr Sachawars certified the applicant as having no current work capacity until 4 October 2021. The respondent has submitted that, in all the circumstances, the Commission would not be satisfied that the certifications are reliable evidence of the incapacity resulting from the injury as opposed to the applicant’s incapacity resulting from all conditions.
Dr Sachawars’ certificates during this period do not on their face accurately reflect the applicant’s circumstances at the time. For example, they continued to refer to the applicant “awaiting for surgery” well after the surgery was performed. It is not until the certificate issued on 29 September 2021 that there was any indication in the certificates that the surgery had taken place. In the certificate of that date, Dr Sachawars identified pain in the area of surgery and in the right anterior thigh as factors affecting recovery.
Similar post-surgery symptoms of pain in the groin and thigh were also described in Dr Pathma-Nathan’s and Dr Berry’s reports. It is reasonable to assume that those ongoing symptoms were taken into account by the specialists in giving their opinions on capacity.
It all the circumstances, the opinion given by Dr Berry appears to be the most reliable. Unlike Dr Pathma-Nathan, he saw the applicant after the period of weekly compensation claimed had ceased. He was aware of the ongoing symptoms and had an accurate history before him. Dr Berry was also aware of the concurrent conditions unrelated to the injury.
As a result, I find that the applicant had no current work capacity as a result of the injury from the commencement of the claim until 28 August 2021, that is, one month after the surgery. Thereafter, Dr Berry found the applicant could make a graduated return to work, initially avoiding heavy lifting. Dr Berry did not give an indication of how many hours per week the applicant was capable of working in such duties or what weights could be safely lifted.
Dr Pathma-Nathan thought the applicant could lift up to 10kg as soon as two weeks after the surgery. In his final certificate in the period of weekly compensation claimed, Dr Sachawars certified a lifting capacity of 10kg and 20 hours per week. In all the circumstances, I find that the applicant had capacity to perform his pre-injury duties for 20 hours per week (although not his usual full-time, unrestricted duties).
The payslips in evidence confirm that the applicant’s hourly rate during this period was $36.29. Accordingly, I find the applicant had capacity to earn $725.80 per week in suitable employment from 29 August 2021 to 18 October 2021. That figure represents his “current weekly earnings” amount pursuant to item 8 of Schedule 3 to the 1987 Act.
I note that although the payslips indicate that the applicant continued to be paid annual leave during this time, there is no evidence that the applicant was receiving actual “earnings” having regard to the definition in item 6 of Schedule 3 to the 1987 Act. That is, the applicant was not receiving income for “work performed” in any employment.
The PIAWE rate has been agreed at $1,239.69. From 1 October 2021, that figure is indexed pursuant to ss 82A and 82D of the 1987 Act to $1,250.
In view of the foregoing, there will be an award for weekly compensation as follows:
i) from 10 August 2021 to 28 August 2021 pursuant to s 37(1) of the 1987 Act at 80% of PIAWE, being $991.75 per week;
ii) from 29 August 2021 to 30 September 2021 pursuant to s 37(3)(a) of the 1987 Act at 80% of PIAWE less current weekly earnings of $725.80 per week, being $265.95 per week, and
iii) from 1 October 2021 to 18 October 2021 pursuant to s 37(3)(a) of the 1987 Act at 80% of the indexed PIAWE less current weekly earnings of $725.80, being $274.20 per week.
The parties will have liberty to apply in respect of the calculations above.

[2023] NSWPIC 303

27 June 2023