Bechara v Richard Crookes Constructions Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Bechara v Richard Crookes Constructions Pty Ltd [2022] NSWPIC 526
APPLICANT:	Mark Bechara
RESPONDENT:	Richard Crookes Constructions Pty Ltd
Member:	John Isaksen
DATE OF DECISION:	23 September 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments of compensation for injury to the lumbar spine; worker paid benefits for two years until respondent discovers evidence that injury may not have been sustained at work; Held – upon review of all available evidence worker did sustain an injury in the course of employment with the respondent; award of weekly payments of compensation for worker having no current work capacity.
determinations made:	1. The applicant sustained an injury to his lumbar spine in the course of his employment with the respondent on 14 June 2019. 2. The applicant’s employment was a substantial contributing factor to the injury he sustained on 14 June 2019. 3. The applicant has had no current work capacity since 17 September 2021.
orders made:	1. The respondent is to pay weekly payments of compensation to the applicant as follows: (a) $2,254.60 per week from 17 September 2021 to 30 September 2021 pursuant to s 37 (1) of the Workers Compensation Act 1987; (b) $2,282.90 per week from 1 October 2021 to 31 March 2022 pursuant to s 37 (1) of the Workers Compensation Act 1987; (c) $2,318.10 per week from 1 April 2022 to 12 May 2022 pursuant to s 37 (1) of the Workers Compensation Act 1987 ; and (d) $2,318.10 per week from 13 May 2022 to date and continuing pursuant to s 38 (6) of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mark Bechara, the applicant in these proceedings, claims that he sustained injury to his lumbar spine on the morning of 14 June 2019 while employed as a site supervisor for the respondent, Richard Crookes Constructions Pty Ltd, at a building site in Miller Street, North Sydney.
The respondent accepted liability for this injury and Mr Bechara was paid weekly payments of compensation until 17 September 2021. The respondent also met the cost of two operations performed on Mr Bechara’s lumbar spine, firstly a L4/5 microdiscectomy on
30 August 2019, and secondly a L5/S1 fusion and L4/5 disc replacement on
14 December 2020.
The insurer of the respondent, GIO, issued a dispute notice on 28 July 2021 wherein it disputed the claim made by Mr Bechara on the grounds that it was not satisfied that
Mr Bechara had sustained an injury in the course of his employment as he had claimed, but instead had sustained an injury to his lumbar spine in the late afternoon of 14 June 2019 while assisting a friend with renovations at her home.
Mr Bechara maintains that he did sustain an injury to his lumbar spine on the morning of
14 June 2019 while in the course of his employment with the respondent and seeks the reinstatement of weekly payments of compensation from 18 September 2021 onwards.
Mr Bechara claims that he has had no current work capacity since 18 September 2021.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant sustained injury to his lumbar spine in the course of his employment with the respondent on 14 June 2019 (s 4 of the Workers Compensation Act 1987 (the 1987 Act);
(b)    whether the applicant’s employment was a substantial contributing factor to the injury he sustained on 14 June 2019 (s 9A of the 1987 Act), and
(c)    the extent of the applicant’s incapacity for employment (ss 32A, 33, 37, and 38 of the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

The parties attended a conference and hearing on 7 September 2022. 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.
Mr Grimes appeared for the applicant, instructed by Mr Lehmann. Mr Doak appeared for the respondent, instructed by Ms Belinda Brown.
The parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) were in excess of the maximum weekly compensation amount provided for in s 35 of the 1987 Act.
Mr Doak advised that Mr Bechara had received 96 weeks of weekly payments of compensation to date.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents filed by the respondent on
2 September 2022.
The reports of Dr Bentivoglio dated 12 October 2020 and 26 October 2020 in the ARD were not admitted into evidence, except for the history recorded in the report dated
12 October 2020, pursuant to Regulation 44 of the Workers Compensation Regulation 2016.

Oral evidence

There was no application to adduce oral evidence or to cross examine Mr Bechara, or any other witnesses.

The applicant’s evidence

Mr Bechara has provided statements in the ARD dated 5 May 2021, 1 September 2021 and 25 November 2021. There is also a statement from Mr Bechara in the Reply dated
3 September 2021.
Mr Bechara states that he commenced working for the respondent as a site supervisor in February 2016. He states that he was required to undergo a pre-employment medical examination and no medical issues were identified.
Mr Bechara states that his main responsibilities were co-ordinating subcontractors and supervising the fit outs on a site. He states that he was not required to perform any work “on the tools”, but he would often ensure that areas were clear for work to be completed.
Mr Bechara states that he knew about reporting injuries and had to immediately report an injury to the safety officer. He also states that he had no secondary forms of employment while working for the respondent.
In his first statement dated 5 May 2021, Mr Bechara describes the circumstances in which he sustained injury to his lower back on 14 June 2019 as follows:
“They had left a wheelie bin full of tiles on a balcony and I grabbed the wheelie bin and was pulling it into the unit. As I pulled it, I was required to bring it over a protruding ledge which is at the bottom of the sliding patio door.
As I brought the wheels of the bin over the ledge they caught and the wheelie bin started to fall. I estimate the bin would have weighed around 100 kg and I tried to stop the bin falling by keeping hold of the handles. As I did this I was pulled forward sharply as the wheelie bin fell to the ground and I kept holding on. This resulted in a quick bending motion which caused the injury.”
Mr Bechara states that he instantly felt a lot of pain and felt “a pop” in his lower back, but he thought he had pulled a muscle. He states that he walked to the site office and told his boss Victor Obeid and Joe Bosic what had happened and then walked to a nearby pharmacy and purchased some deep heat cream and Nurofen. He states that he applied the cream to his back and was able to work in pain for the rest of the day as he did not think “it was anything major”.
In his first statement dated 5 May 2021, Mr Bechara states that after work he returned home and the pain got progressively worse during the evening. He states that he was rostered on for work for the next day, which was a Saturday. He states that he only worked two of five hours because he was in too much pain, but he told Mr Bosic before he left.
Mr Bechara states that he saw his general practitioner first thing on Monday morning and had a CT scan that day. He states that by this time the pain was excruciating, and he was unable to walk.
Mr Bechara states that by the following Sunday he had lost sensation in his right leg and called an ambulance and was taken to Bankstown Hospital. He states that he remained there for four days.
In his second statement dated 1 September 2021, Mr Bechara states that he left work at 4.00pm on 14 June 2019 and drove about 30 minutes to a friend’s house at Banksia. He states that he had been assisting with the co-ordination of trades persons for building work at his friend Lucy’s house in Banksia.
Mr Bechara states that the fence at the Banksia property was due to be painted the next day and Lucy was unsure of how the varnish would dry on her fence. He states that he applied a sample of varnish to the fence and immediately felt pain again and could not stand straight. He states that he took some more painkillers before driving home. Mr Bechara states that the pain and popping sensation he felt in his lower back when bending down with the paint brush was a continuation of the pain he had experienced at work when pulling and catching the wheelie bin.
Mr Bechara states that he sent a text to Mr Bosic when he got home from Lucy’s place, telling Mr Bosic that he could not work Saturday or Sunday.
There is a text message from Mr Bechara, which appears with a date of 15 June 2019 at 5.39 pm which reads: “will be there but don’t know how long I’ll last I can’t straighten my body, my back is rooted, will talk tomorrow”.
There is a text message from Mr Bechara on 17 June 2019 which reads: “Good morning guys my back is fucked I’ve booked to see DR”.
There is an email to “Holy Suga”, being the business of Lucy Nader, from Mr Bechara on
19 June 2019 which commences: “I’ve done my back pretty badly and I’ve been having cortisone injection into the nerves”.
Mr Bechara states in a further email that day:
“… i actually had a sore back for a while but popped it on Friday while bending to paint the wall at your place - when I saw you as I was leaving I was in so much pain then Saturday got up I couldn't move, hopefully the cortisone injection will help. The bloody injections are costing me a fortune and they done guarantee to work.”
Ms Nader responds: “I am so sorry this happened at my home I can’t get over after all that you have done it happens while painting that’s crazy”.
In his statement dated 1 September 20121, Mr Bechara states that the expression of his back “popping” was to describe the pain he was experiencing at the time.
Mr Bechara completed an Accident/Incident report on 8 July 2019 and describes what happened on 14 June 2019 as follows:
“Mark states whilst removing a wheely bin full of broken tiles out of a unit into the corridor, he felt a twinge in his lower right back causing pain.”
The report also states that Mr Bechara thought nothing of the incident at the time and continued to work, and the incident was not recorded because Mr Bechara felt it was not bad at the time.

Other lay evidence

Victor Obeid has provided a statement dated 16 June 2021. Mr Obeid states that he is employed as a Project Manager for the respondent.
Mr Obeid states that he has been advised that Mr Bechara alleges that he sustained an injury to his lower back at a site in Miller Street that Mr Obeid was managing on
14 June 2019. He states that it is a long time ago now, but he does have a vague recollection of Mr Bechara “saying something along the lines of he may have sprained a muscle in his back”. He states that he does not recall how the alleged injury occurred.
Mr Obeid states that he would have asked Mr Bechara to make a formal report, but
Mr Bechara said that he did not think it was serious enough. He states that Mr Bechara worked for the rest of the day and did not make any further complaint before he left the site.
Joseph Bosic has provided a statement dated 16 June 2021. Mr Bosic states that he is employed as a Project Manager for the respondent.
Mr Bosic states that he does recall Mr Bechara having some issues with his back before
14 June 2019. He states that he received a text message from Mr Bechara on 7 March 2019 which states: “Hi mate, not coming in today, my back is still very sore. Need to rest, see you tomorrow”.
Mr Bosic states that at 5.39 pm on 14 June 2019, he received a text message from
Mr Bechara stating that he would be at work the next day but did not know how long he would last because his back was “rooted”.
Mr Bosic states that he was the recipient of the text message from Mr Bechara on
17 June 2019 stating that “my back is fucked”.
Lee Shultz has provided a statement dated 17 June 2021. Mr Shultz states that he is employed as a WHSE adviser for the respondent.
Mr Shultz states that he recalls Mr Bechara telling him that a few weeks earlier he had tried to move a bin and maybe strained his back. He states that he asked Mr Bechara why he had left it so long to report the incident, but he cannot recall Mr Bechara’s response.
Kate Reddaway has provided a statement dated 12 May 2021. Ms Reddaway states that she is employed as a HR Manager for the respondent.
Ms Reddaway states that Mr Bechara had his employment with the respondent terminated due to misconduct on 27 July 2020. She states that on 27 August 2020 she discovered a private message sent by Mr Bechara in his work emails while responding to an application made by Mr Bechara before Fair Work Australia, and the emails referred to Mr Bechara sustaining an injury to his back on the same day that he reported having sustained an injury at work. Ms Reddaway states that she informed the respondent’s third party provider MEND and the solicitors acting for the respondent in the Fair Work Australia proceedings, but nothing else happened until MEND recently requested copies of those emails.
Ms Reddaway states that the respondent’s leave system records Mr Bechara taking sick leave between 19 and 27 June 2019, but no reason is stipulated.
Lucy Nader has provided a statement dated 22 November 2021. Ms Nader states that
Mr Bechara organised trades people for some renovation work at her place in 2019. She states that in June 2019 she asked Mr Bechara to do a little varnish sample on a small part of her back fence as she had painters due that weekend. Ms Nader states that Mr Bechara had hurt his back on the morning of the day he was due to do the sample and due to his pain “he couldn’t do much”.

The medical evidence

The first two entries made by one of Mr Bechara’s general practitioners, Dr Bassil, on
17 June 2019 in regard to an injury to Mr Bechara’s lower back simply record “back pain” and “right sciatica”.
The discharge summary from Bankstown Hospital dated 27 June 2019 records Mr Bechara having back pain for two weeks. The discharge summary records that Mr Bechara was admitted on 26 June 2019 and discharged the following day, and not the four days of admission stated by Mr Bechara.
Another general practitioner who Mr Bechara attended upon, Dr Rajab, records on
28 June 2019: “LBP” and “nerve impingement”.
Dr Mobbs, neurosurgeon, initially sees Mr Bechara on 17 July 2019, and makes a provisional diagnosis of L4/5 disc herniation in his report to Dr Bassil.
Dr Mobbs has provided a report dated 22 February at the request of Mr Bechara’s lawyers. He states that he has undertaken a complete review of Mr Bechara’s file in order to provide this report. That report endeavours to answer several questions put to Dr Mobbs.
In answer to whether he considers Mr Bechara suffered a frank injury as a result of the wheelie bin incident, the painting incident, or both, Mr Mobbs responds: “More likely than not, as a result of both incidents”. Dr Mobbs writes:
“The reasons for this is the patient's reporting of his symptoms to me in that there was no one incident by itself that was the cause of his low back problems but rather a combination of workplace incidents.”
Dr Mobbs also writes:
“It is impossible to be black and white and make an absolute decision on one particular incident as compared with another. As we all know, many low back/disc injuries occur by a culmination of many rather than a singular event.”
Dr Bodel, orthopaedic surgeon, has provided two reports dated 16 March 2022 at the request of Mr Bechara’s lawyers.
Dr Bodel records that on 14 June 2019 Mr Bechara was wheeling a 660 litre rubbish bin which was filled with general building rubbish but mainly broken tiles. He records that
Mr Bechara lost control and slipped and fell but continued to hang on to the bin and strained his back. Dr Bodel records that Mr Bechara managed to get through the day with increasing difficulty and that Mr Bechara took medication for the pain. He records that Mr Bechara developed severe back pain and right sided sciatica over the ensuing weekend.
Dr Bodel notes “the episode that occurred at home while assisting a friend to move home” and refers to various statements including a statement from Ms Nader. Dr Bodel also understands that there were “a number of other tradespersons” at the building site who confirmed the injury as described by Mr Bechara.
Dr Bodel opines that the primary injury is the episode which occurs at work when moving the 660 litre rubbish bin on 14 June 2019. He refers to reports from Dr Doig, who was retained to provide expert opinion for the respondent, and writes:
“Dr Doig was of the view that the “private injury matter was the primary cause for the need for the surgery” but I disagree. He was still symptomatic from the original injury which occurred on 14 June 2019 at the time this happened.
It is my view that the non temporaneous medical evidence and also the report from
Dr Mobbs, confirms that it the correct view of the injuries in this circumstance.”
Dr Doig, orthopaedic surgeon, has provided five reports at the request of the respondent.
In his report dated 9 July 2020, Dr Doig records that Mr Bechara was pulling a wheelie bin full of tiles off a balcony when the bin began to unbalance and topple. Dr Doig writes that
Mr Bechara tried to prevent the bin from falling which resulted in an acute flexion mechanism through the lower back. Dr Doig concluded that Mr Bechara had suffered a L4/5 disc herniation.
Dr Doig provides a further report dated 7 June 2021 following a review of a considerable amount of medical material, and also the email correspondence between Mr Bechara and
Ms Nader. Dr Doig writes:
“Many thanks for enclosing the additional documentation, particularly the e-mail trail indicating that Mr Bechara injured his lower back while painting a wall for Ms Lucy Nader, owner of the domicile where Mr Bechara appears to have been working. Mr Bechara's e-mail documentation states that he "popped" his lower back on Friday, 14 June 2019 while bending to paint a wall. By the following day, Saturday, he could hardly move. This information therefore blatantly states that Mr Bechara did not injure his lower back within his place of employment as previously alleged.”
Dr Doig concludes that there is no evidence that Mr Bechara suffered an injury to his lower back at the respondent’s premises on 14 June 2019.
Dr Doig provides a further report dated 19 July 2021 after reviewing statements from
Mr Obeid, Mr Bosic and Mr Shultz and clinical notes from Dr Bassil. Dr Doig notes that an
X-ray of the lumbar-thoracic spine was undertaken in November 2014 and there was a record made at that time of right-sided sciatica. Dr Doig concludes:
“I have commented on the additional, pertinent documentation provided to me. This clearly demonstrates that Mr Bechara, despite denying any previous problems or injuries to his spine, having suffered from back problems for many years with a history of right flank/lumbar pain and sciatica prior to the alleged incident date. My response in my previous, supplementary report also stated that based on the text-message trail, there appears to have been an injury out-with work consistent with causing an acute intervertebral disc rupture in the lumbo-sacral spine.”

A summary of submissions

Mr Grimes on behalf of Mr Bechara submits that Mr Bechara does not dispute that he experienced an onset of lower back pain when applying some paint at Ms Nader’s property on the afternoon of 14 June 2022, but that this was mild in comparison to the rather violent manner in which Mr Bechara was injured earlier that same day when he was pulling a very heavy bin of rubbish.

Mr Grimes submits that there is no evidence from the respondent that the incident at work on the morning of 14 June 2019 did not occur or could not have occurred, and that the evidence from Mr Obeid supports the complaint of an injury to the lower back at work on that day.
Mr Grimes also refers to an entry made by Dr Rajab on 3 March 2020 that Mr Bechara “was at physio when felt a pop in right chest during massage”, to submit that Mr Bechara uses the term “pop”, as he did in his email to Ms Nader to describe a change in his anatomy.
Mr Doak for the respondent submits that the respondent accepted Mr Bechara’s claim of how he injured his lower back at work until it discovered the emails between Mr Bechara and
Ms Nader. Mr Doak submits that what is conveyed in the emails from Mr Bechara to
Ms Nader is that Mr Bechara had injured his back at her place, to the extent that he could not move the next day, required a cortisone injection, and that injections were “costing me a fortune”.
Mr Doak submits that if Mr Bechara did sustain an injury at work with the respondent, then it is improbable that Mr Bechara would be implicating the incident at Ms Nader’s property as being the cause of his lower back injury, and yet that is what is being conveyed in the email exchange between Mr Bechara and Ms Nader. Mr Doak also points out that Mr Bechara was complaining that his medical treatment was expensive, but he had made no claim for workers compensation benefits at the time of these emails, and waited another three weeks to report the incident at work and make a claim.
Mr Doak submits that even if it were accepted that Mr Bechara did sustain an injury to his lower back at work on the morning of 14 June 2019, then it was of a minor nature because he continued to work throughout the day and did not consider the injury to be serious enough to make a report of injury. This was despite knowing that an injury at work must be the subject of notification to his employer. This contrasts with the incident at Ms Nader’s place which caused Mr Bechara to send a text message to Mr Bosic within an hour of the incident occurring to state that his back was “rooted” and he did not know if he could work the next day.
Mr Doak submits that the evidence from Mr Obeid does not corroborate the evidence of
Mr Bechara that he sustained an injury at work on 14 June 2019. Mr Obeid is not able to identify the date of 14 June 2019 as being when Mr Bechara told him he had sprained a muscle in his back, and there is the evidence from Mr Bosic of a text message from
Mr Bechara some two months earlier on 7 March 2019 that Mr Bechara could not work because of a sore back.

Findings and reasons

Whether the applicant sustained an injury to his lower back in the course of his employment on 14 June 2019

In Field v Department of Education and Communities [2014] NSWWCCPD 16 (Field), DP Roche said at [38]:
“It is for the tribunal of fact to assess the reliability of the evidence against the “contemporary materials, objectively established facts and the apparent logic of events” (Fox v Percy [2003] HCA 22; 214 CLR 118 at [31]).”
The “contemporary materials” which are available in this dispute are limited. Mr Grimes made the observation during submissions that the contemporaneous medical material does not record any details of a possible cause of the injury Mr Bechara sustained to his lower back.
The first two entries made by Dr Bassil on 17 June 2019 simply record “back pain” and “right sciatica”, without any reference to the possible cause of those symptoms. The discharge summary from Bankstown Hospital dated 27 June 2019 records Mr Bechara having back pain for two weeks, but no details of the possible cause of that pain.
Dr Rajab records “LBP” and “nerve impingement” on 28 June 2019, without any details of the possible cause of those symptoms. Dr Mobbs does not refer to any possible cause for his provisional diagnosis of L4/5 disc herniation when he reports back to Dr Bassil following an initial consultation with Mr Bechara on 17 July 2019.

Although caution is needed when relying upon clinical notes, especially from busy general practices and emergency departments of public hospitals (see for instance Santow JA in Nominal Defendant v Clancy [2007] NSWCA 349 at [54]), even a brief reference to a possible cause of Mr Bechara’s lower back symptoms in the records of the two general practitioners, Bankstown Hospital or Dr Mobbs may have assisted in the determination of this dispute.
It is apparent that both general practitioners who treated Mr Bechara within a month of
14 June 2019 were sparse in their note taking. Even when Dr Rajab records for the first time that the injury is work related on 9 July 2019, there are still no details how the injury was sustained. The Certificates of Capacity which Dr Rajab subsequently issue only state: “pulling a load of tiles”.
While there is no reference to a lower back injury occurring at work in those initial notes from both general practitioners, there is also no reference to any lower back injury being sustained while Mr Bechara was assisting in the renovations at Ms Nader’s place. In my view
Mr Bechara should not be penalised because his general practitioners have not recorded a possible cause for his lower back symptoms when he presented himself to each of those doctors.
By the time Mr Bechara sees Dr Mobbs for the first time on 17 July 2019, a workers compensation claim has been made by Mr Bechara, but Dr Mobbs does not provide any details of a work injury in his report to Dr Bassil.
The discharge summary from Bankstown Hospital records that Mr Bechara was admitted overnight and not for four days as stated by Mr Bechara. However, only the discharge summary is in evidence, and not a full set of clinical notes from his admission. The clinical notes may have provided more information regarding a possible cause of Mr Bechara’s lower back pain, whereas a discharge summary only provides brief details which might not be accurate given the busy nature of a public hospital.
In regard to the contemporaneous non-medical material, there was no written report of injury made by Mr Bechara on 14 June 2019, despite him being well aware that an injury must be immediately reported to a safety officer. A written report of injury was not made by
Mr Bechara until 8 July 2019, some three weeks after the alleged incident. Mr Grimes refers to a ‘Return to Work Plan No.1’ as evidence that the respondent was aware of the claimed injury before 9 July 2019, but that document is dated 12 July 2019, and would therefore appear to be created once Mr Bechara had reported the injury and made a workers compensation claim.
The respondent understandably relies very much on the email exchange between
Mr Bechara and Ms Nader on 19 June 2019. However, there needs to be caution when approaching this evidence. Mr Bechara states that his back “popped” when bending down to paint, but he also states that he had a sore back “for a while”. Mr Bechara has not explained what he meant by “for a while”, but he is adamant that he did injure his lower back at work earlier that day.
Moreover, it is Ms Nader who presumes that Mr Bechara’s inability to move the following day and incur “a fortune” in medical treatment is due to what occurred at her place when she writes: “I am sorry this happened at my home”. Mr Bechara does not endeavour to correct this presumption in any subsequent email that is in evidence, but those emails need not be regarded as providing a complete depiction of what had occurred to Mr Bechara on
14 June 2019 and on subsequent days. Those emails are limited to what was pertinent at the time as between Mr Bechara and Ms Nader.
Mr Obeid provides a statement some two years after the alleged work injury. However, he does not dispute or challenge the claim made by Mr Bechara that he sustained an injury to his lower back on 14 June 2019 on a site that Mr Obeid was managing. Mr Obeid does not contend that Mr Bechara could not have sustained the injury as alleged on that day and at that building site. There is also no evidence from the respondent that pulling a heavy and full rubbish bin on a building site was not a work duty that Mr Bechara would have undertaken in his position as a site supervisor.
Mr Obeid recalls Mr Bechara “saying something along the lines of he may have sprained a muscle in his back”, although he does not recall how the alleged injury occurred. He also recalls Mr Bechara saying that he did not think the injury was serious enough for a formal report of injury to be made.
In the absence of contemporaneous medical records providing a possible cause for what became quite significant lower back symptoms experienced by Mr Bechara and with the caution that is required in approaching the email messages between Mr Bechara and
Ms Nader, the evidence provided by Mr Obeid becomes critical.
Mr Doak submits that Mr Obeid is not able to identify the date of 14 June 2019 as being when Mr Bechara claims to have sustained the injury to his lower back at work. However,
Mr Obeid is made aware of 14 June 2019 being the date of injury claimed by Mr Bechara and does not dispute that. The evidence from Mr Obeid allows me to be satisfied that a finding can be made that Mr Bechara did sustain an injury to his lower back at work on the morning of 14 June 2019.
Mr Bechara states that he did not report the injury on 14 June 2019 because he did not think “it was anything major.” That is corroborated by the evidence from Mr Obeid who recalls
Mr Bechara saying that he did not think the injury was serious enough for a formal report of injury to be made.
That decision made by Mr Bechara to keep on working on 14 June 2019 is also supported by his actions the following day, when despite informing Mr Bosic that his back was “rooted”, he states that he did work for two hours of a five hour shift. There is no evidence from the respondent, in particular from Mr Bosic, which disputes Mr Bechara’s evidence that he did work for two hours that day.
I therefore accept that although Mr Bechara was aware that an injury at work should have been the subject of an immediate report, he continued on working that day without making a formal report of injury because he thought that he had not sustained a serious injury to his lower back.
Mr Doak submits that there is inconsistency in the various descriptions of the injury
Mr Bechara claims to have sustained on the morning of 14 June 2019, which adds to the doubt that I should have as to whether Mr Bechara did sustain a work injury as alleged. In his first statement, Mr Bechara states that the wheels of the bin got caught on a protruding ledge, which caused the bin to start to fall, whereas in the Incident Report there is no mention of the protruding ledge, but simply that Mr Bechara felt a twinge in his lower back.
Mr Doak also refers to the description of injury recorded by Dr Bodel that Mr Bechara slipped and fell when wheeling a rubbish bin, with no mention of the protruding ledge or ‘hob’.
Mr Doak also refers to the unlikely size and weight of Mr Bechara manipulating a 660 litre rubbish bin that is recorded by Dr Bodel.
While there are those inconsistencies, what is common to all those descriptions is that
Mr Bechara was pulling a rubbish bin full of broken tiles, which I accept must have been very heavy, and which had the potential to cause an injury to the lower back if he lost control of the bin while pulling it.
Mr Bechara states that he felt a lot of pain as he was pulling the bin and it fell towards the ground. He states that he worked on with lower back pain, but he took Nurofen and used deep heat cream during the day. Although there is a lack of contemporaneous medical evidence which records the incident on 14 June 2019, the evidence provided by Mr Bechara, which is supported by the evidence of Mr Obeid, leads me to be satisfied that Mr Bechara did sustain an injury to his lower back in the course of his employment with the respondent that morning.
The expert medical evidence as to whether Mr Bechara sustained a significant injury to his lower back at work on 14 June 2019, compared to what Mr Bechara experienced later that day at Ms Nader’s place, weighs in favour of Mr Bechara.
Although there are no details recorded by Dr Mobbs of either the incident at work or at
Ms Nader’s place in the material from his file that has been made available in this dispute,
Dr Mobbs does state that he has undertaken a complete review of Mr Bechara’s file and opines that it is more likely than not that Mr Bechara sustained a lower back injury as a result of both the incident at work and the painting incident at Ms Nader’s place. The basis for that opinion is that he considers that lower back injuries can occur due to a ‘culmination’ of many events rather than a singular event.
Dr Bodel writes that he has reviewed various statements, including from Ms Nader, and has viewed photographs of where Mr Bechara experienced the onset of lower back pain at
Ms Nader’s place. I do not accept his assumption that “a number of other tradespersons” at the building site confirmed the injury occurred in the manner described by Mr Bechara because that does not appear in the evidence provided by Mr Obeid or Mr Bosic or anyone else.
It is also difficult to accept his conclusion that the “non temporaneous medical evidence” (which I presume should read “contemporaneous”) confirms the “correct view of the injuries” when I have already set out that no details of how the injury or injuries to the lower back occurred appear in the contemporaneous medical records.
Nonetheless, as Acting President Roche said in Krstevska v Fast & Fluid Management Australia Pty Ltd [2012] NSWWCCPD 69 at [51]:
“.... The asserted facts do not have to correspond “with complete precision” with the facts established. It is a question of fact whether they are “sufficiently like” the facts established “to render the opinion of the expert of any value” and whether they provide a “fair climate” for the acceptance of the opinion (Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; [1985] HCA 58; 59 ALJR 844 at 846 (Paric)).
The details recorded by Dr Bodel of how Mr Bechara sustained injury at work on
14 June 2019 and what occurred during the rest of that day are “sufficiently like”
Mr Bechara’s own evidence and the evidence provided by Mr Obeid. Dr Bodel records how Mr Bechara felt lower back pain when he tried to hold on to a falling bin full of broken tiles.
Dr Bodel records that Mr Bechara managed to get through the working day with increasing difficulty and by taking medication. That allows me to accept Dr Bodel’s opinion that
Mr Bechara “was still symptomatic from the original injury” when he also experienced lower back pain at Ms Nader’s place.
I prefer the opinions of Dr Mobbs and Dr Bodel on the cause of the injury that Mr Bechara sustained to his lower back on 14 June 2019 because they have both considered the incident which occurred at Ms Nader’s place that afternoon but explain their reasons for concluding that Mr Bechara sustained a frank injury to his lower back at work that morning. Dr Mobbs considers both incidents to have caused an injury to the lower back, whereas Dr Bodel opines that the “primary injury” is the incident which occurred at work, with the incident at
Ms Nader’s place being one of Mr Bechara’s “flare ups of pain” that day.
However, both Dr Mobbs and Dr Bodel acknowledge the serious effect that the injury sustained in the morning at work had upon Mr Bechara. That in turn allows me to be satisfied that Mr Bechara’s employment was a substantial contributing factor to the injury he sustained to his lower back.
I prefer the opinions provided by Dr Mobbs and Dr Bodel over the opinion that is provided by Dr Doig. Dr Doig’s opinion is contingent upon an assumption that Mr Bechara did not sustain an injury to his lower back at work at all, when upon my review of the evidence I have accepted that Mr Bechara did sustain such an injury.
Dr Doig is not prepared to consider the effect of an injury that Mr Bechara sustains to his lower back at work when he writes that the information he has received “blatantly states that Mr Bechara did not injure his lower back within his place of employment” in his report dated
7 June 2021. This is despite Dr Doig previously accepting that Mr Bechara suffered a L4/5 disc herniation when Mr Bechara tried to prevent a bin full of tiles from falling.
Mr Doak has raised other issues regarding the credibility of the applicant’s evidence which I need to address.
Mr Doak refers to Mr Bechara making no mention in his first statement of visiting Ms Nader’s place after he stopped work, but instead Mr Bechara states that: “After work I returned home”.
However, consideration must be given to the context in which Mr Bechara provides that first statement. That statement is provided by Mr Bechara to an investigator retained by the insurer of the respondent almost two years after his claim had been accepted. There is no indication from a reading of that statement that Mr Bechara was asked if anything else occurred after he stopped work that day. Mr Bechara otherwise provides details pertinent to the injury he sustained on the morning of 14 June 2019.
Once Mr Bechara is made aware of why the respondent is investigating a claim which had been accepted without any issue for some two years, Mr Bechara readily provides details of what also occurred on that day when he had finished working for the respondent.
Mr Doak refers to the records made by both Dr Bodel and Dr Doig that Mr Bechara had no prior problems with his lower back. The notes from Dr Bassil record on 5 December 2014: “Right sciatica – L4/L5 disc prolapse”. There is an x-ray report dated 11 November 2014 which reports: “disc space at L5/S1 is also suggestive of degenerative disc disease”.
I agree with the submission made by Mr Grimes that the lack of any further reference to lower back problems after 2014 leads to a reasonable conclusion that whatever problems
Mr Bechara had in 2014 were dissipated well before the injury of 14 June 2014. Such a conclusion is supported by Mr Bechara’s evidence, which is not contested by the respondent, that he underwent a pre-employment medical examination prior to the commencement of his employment with the respondent in February 2016.
Mr Doak also refers to the text message received by Mr Bosic on 7 March 2019 of
Mr Bechara writing that his “back is still very sore”. However, Mr Bechara also writes: “see you tomorrow”. There is no evidence from the respondent that Mr Bechara had any time off work around that time due to lower back problems. Nor are there any records in the notes from Mr Bechara’s general practitioners regarding the need for any treatment for lower back problems around this time.
Mr Doak also refers to Mr Bechara’s complaints regarding the cost of medical treatment in his email to Ms Nader on 19 June 2019 as being an indication that Mr Bechara did not consider himself a candidate for a workers compensation claim, because otherwise he would have been looking to his employer to pay these accounts.
I have already observed that there needs to be caution when approaching a consideration of the email exchange between Mr Bechara and Ms Nader. The email from Mr Bechara is only a few days after Mr Bechara has realised the serious nature of the injury he has sustained. His immediate priority is to get treatment. It is therefore understandable at this early stage of treatment, when Mr Bechara has yet to make a formal claim for workers compensation, that he makes a comment to a friend regarding the cost of such treatment. I do not consider anything further can be extrapolated from that particular piece of evidence.
Mr Doak refers to Mr Bechara stating that he had no secondary forms of employment while working for the respondent when Mr Bechara was receiving payment for work he did at the request of Ms Nader.

I agree with Mr Grimes that the evidence reveals that the payment made by Ms Nader was consistent with a gesture of goodwill, and the evidence does not support regular and systematic work being undertaken elsewhere by Mr Bechara.
I have referred to the lack of contemporaneous medical evidence regarding the possible cause of the injury Mr Bechara sustained on 14 June 2019. However, I am satisfied from the evidence provided by Mr Bechara, which is supported by the evidence of Mr Obeid and the opinions of Dr Mobbs and Dr Bodel, that Mr Bechara did sustain an injury to his lower back in the course of his employment with the respondent on the morning of 14 June 2019, and that this injury was serious enough to cause him to cease work and undergo extensive medical treatment which included two operations to his lumbar spine.

The claim for weekly payments of compensation

Mr Bechara claims that he has had no current work capacity since 17 September 2021 when weekly payments of compensation were terminated. However, he has not provided his own evidence to explain why he could not do any work at all.
Certificates of Capacity issued by Dr Rajab certify Mr Bechara as having no current work capacity.
Dr Bodel in his report dated 16 March 2022 opines that Mr Bechara is totally unfit for work and that he is not fit for even selected duties at the moment, although Dr Bodel does not provide any explanation for reaching those opinions.
Dr Doig had recorded in June 2020 that Mr Bechara had managed to upgrade to 24 hours of work per week, with 70% of his workload being performed at home.
Dr Doig states in his report dated 7 June 2021 that Mr Bechara had undergone a decompression/discectomy with a poor outcome, and that his prognosis was guarded following major revision surgery.
Dr Kam, who performed the second operation on Mr Bechara in December 2020, wrote in a questionnaire form on 29 January 2021 that he considered that Mr Bechara would be fit for light duties work in four weeks time. However, in another questionnaire form completed on 12 April 2021, Dr Kam states that “Not able to stand/walk for long periods of time” were permanent restrictions that Mr Bechara will have in relation to his work capacity.
The details recorded by Dr Doig in June 2020 of Mr Bechara working 24 hours per week, with most of that work at home, suggests that Mr Bechara has some limited work capacity. In the absence of details provide by Mr Bechara, it would be reasonable to infer that the work which Mr Bechara undertook at his home involved at the very least some basic administrative and clerical duties, which could be replicated in an office for a few hours per week.
However, Mr Doak conceded that the respondent does not have any up to date evidence which addresses Mr Bechara’s capacity for work. Furthermore, the work which Mr Bechara did undertake for the respondent after his work injury was prior to Mr Bechara undergoing a second operation in December 2020, which Dr Doig conceded has led to a guarded prognosis for Mr Bechara. There is no evidence of Mr Bechara undertaking any work since that second operation.
The medical evidence therefore weighs in favour of a finding that Mr Bechara has had no current work capacity since 17 September 2021.

The parties agreed that the applicant’s PIAWE was in excess of the maximum weekly compensation amount provided for in s 35 of the 1987 Act.
There will therefore be an award of weekly payments made in favour of Mr Bechara as follows:
(a) $2,254.60 per week from 17 September 2021 to 30 September 2021 pursuant to s 37 (1) of the 1987 Act;
(b) $2,282.90 per week from 1 October 2021 to 31 March 2022 pursuant to s 37 (1) of the 1987 Act;
(c) $2,318.10 per week from 1 April 2022 to 12 May 2022 pursuant to s 37 (1) of the 1987 Act, and
(d) $2,318.10 per week from 13 May 2022 to date and continuing pursuant to
s 38 (6) of the 1987 Act.

[2022] NSWPIC 526

23 September 2022