BOH v Engineering Solutions and Services Pty Ltd
[2025] NSWPIC 34
•5 February 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | BOH v Engineering Solutions and Services Pty Ltd [2025] NSWPIC 34 |
| APPLICANT: | BOH |
| RESPONDENT: | Engineering Solutions and Services Pty Ltd |
| PRINCIPAL MEMBER: | John Harris |
| DATE OF DECISION: | 5 February 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; worker suffered injury in 2020 from fall from ladder; paid 173 weeks of compensation; dispute concerning nature of injuries sustained and ongoing effect of injuries; Commission not required to determine precise diagnosis of psychological condition: BFZ v Inner West Council and Wright v State of NSW applied; adverse credit findings based on misrepresentation in tax return and evidence, inconsistent histories to doctors; absence of evidence supporting ongoing effect of physical injuries; multiple doctors supported finding of somatic pain disorder caused by work injury; applicant did not establish no current work capacity; applicant had current work capacity in sedentary employment for a significant and majority of full-time hours; applicant’s entitlement to weekly compensation under section 38(3); section 38(3)(c) – discussion of principles; Roberts v University of Sydney applied; applicant did not establish that he is incapable of working additional hours that would increase earnings; no order for weekly compensation; Held – applicant entitled to general order under section 60 related to finding of ongoing psychological condition. |
| DETERMINATIONS MADE: | The Commission determines: Findings
Orders
|
STATEMENT OF REASONS
BACKGROUND
[BOH] (the applicant) was employed by Engineering Solutions and Services Pty Ltd (the respondent) and sustained injury in the course of his employment on
24 December 2020 when he fell off a ladder.The applicant seeks compensation pursuant to ss 38 and 60 of the Workers Compensation Act 1987 (the 1987 Act). The claim for past s 60 expenses was in the order of $48,000 and a future claim of $2,500 was made relating to future surgery to remove extruded discs and psychological treatment.
[BOH] was paid 173 weeks of weekly compensation for the work injury. The claim for weekly compensation is from 16 April 2024 to date and continuing.
ADMISSIONS AND ISSUES IN DISPUTE
The respondent relies on the notice dated 19 September 2024 issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).[1] The notice admitted soft tissue injuries to various body parts but denied injuries by way of “spinal fractures, internal puncture wound, post-traumatic stress disorder, spinal compression, hypertension, whiplash, chronic pain syndrome or thoracic kyphosis”.
[1] Application to Resolve a Dispute, (Application), p 357.
The notice stated that the applicant had been paid more than 130 weeks of weekly compensation for the injuries sustained on 24 December 2020 and denied that the applicant had any ongoing incapacity after 10 April 2024. The notice otherwise denied the pre-conditions for s 38(3) had been met for the payment of ongoing weekly compensation.
During the hearing the applicant advised that he had been in paid employment since mid-November 2024. Various documents were then provided by the applicant showing the nature and extent of this employment.
As a result of the late particularisation of recent employment, the respondent advised that it also relied on s 38(3)(c) of the 1987 Act.
Leave was granted to rely on that provision given the late notice provided by the applicant that he was now in paid employment.
The respondent raised during submissions that evidence was led on some injuries that were not pleaded. Reference was made to evidence showing various psychiatric diagnoses including a somatic form disorder.
I accept that psychiatric injury was not pleaded in the Application. However, it was agreed during a previous preliminary conference that the applicant was alleging psychiatric injury, which was disputed. That position was confirmed at the hearing.
For reasons expressed later, I do not accept that I am required to make a specific psychiatric diagnosis as submitted by the respondent.
HEARING
The matter was listed for arbitration hearing on 14 January 2025 when the applicant was unrepresented, and Mr Lichaa appeared for the respondent. I allowed the respondent to be represented by a solicitor only as the applicant was unrepresented.
The transcript shows the hearing ran in a disordered and stressful way for everyone concerned. This was unfortunate as the issues were complicated, the applicant was unrepresented and, as the reasons disclose, obviously suffering from a psychiatric condition associated with his chronic pain.
The hearing was further complicated by the applicant’s admission that he recently commenced employment over recent months. This admission raised the need for questioning related to the undisclosed employment.
The following material was admitted into evidence:
(a) the Application and attachments;
(b) Reply and attachments;
(c) applicant’s Application to Admit Late Documents, and
(d) respondent’s Application to Admit Late Documents.
The respondent’s late application was admitted at the hearing without objection save as to one document. That document was the respondent giving notice to the applicant about the financial records it sought leave to cross-examine. That letter was also admitted.
A further application to admit late documents was filed with leave containing documents produced by the applicant on the day of the hearing associated with the recent employment. There was no objection to those documents.
The parties were advised that material within the admitted documents would not be considered if it was not the subject of submission.[2]
[2] See the discussion in Sara v G & S Sara Pty Ltd [2021] NSWPIC 286 at [8]-[9].
The parties’ submissions have been recorded. These submissions are addressed within the Reasons.
There was an attempt to explain the operation of s 38 of the 1987 Act to the applicant, specifically the pre-conditions in s 38(3).[3] The applicant was advised that his medical evidence did not address s 38(3)(c) of the 1987 Act and that he could discontinue the proceedings and obtain further evidence. The applicant declined that invitation.
[3] This occurred at approximately the three-hour mark of the hearing on 14 January 2025.
SUBMISSIONS
The submissions have been addressed in the Reasons. However, I record the applicant’s submissions in reply which were that [BOH]:
(a) sustained a high-risk injury which included a fractured spine and dislocated hip;
(b) is in pain on a daily basis;
(c) the insurer was negligent;
(d) the insurer did not disclose evidence;
(e) the medical examiner accounts are not true and not accurate;
(f) underwent radiofrequency ablation;
(g) has a huge muscular skeletal issue and requires treatment;
(h) is entitled to weekly compensation and further medical expenses;
(i) the insurer has not been nice, and he has been in medical torture;
(j) needs to see an orthopaedic surgeon for his physical problems;
(k) is still trying to find a solution for his problems, and
(l) has done his best but is still in pain.
EVIDENCE
Applicant’s oral evidence
[BOH] gave oral evidence at the arbitration hearing. On numerous occasions [BOH] stated that he was in severe pain and that he wanted his “back to be fixed” and that he was not capable of working. [BOH] said that when he did the recent work his pain was “much worse”.
The respondent had previously placed the applicant on notice that it wished to question him on various records produced in the financial material.
The matter proceeded by allowing the applicant, assisted by my questioning, to respond to specific financial transactions raised by the respondent in recent correspondence. These issues arose following the production of the applicant’s bank accounts.
The applicant stated:
(a) the name change of “[redacted] Pty Ltd” from “[redacted]” (the company) occurred on 4 September 2024;
(b) Squarespace is a website builder which the company used;
(c) Canva is a different tool for online advertisement; this was also used to print out business cards for the old company name. The cards were discarded;
(d) returns from the Australian Tax Office (ATO) in August 2023 related to workers compensation insurer withholding tax. The larger figure related to money paid by the workers compensation insurer paying tax to the ATO;
(e) the applicant denied claiming company expenses as a deduction in his tax return;
(f) WIX is a website development as an expense for the company;
(g) amounts were paid to Google adds relate to advertising for consulting from home for the purpose of attracting customers;
(h) Chat GPT expenses were for “research purposes” and preparing documents for the Commission;
(i) the airfare ticket in May 2024 related to travel with his partner to the Whitsundays from Sydney;
(j) payments to Microsoft and Adobe are computer expenses;
(k) applicant stated he did not have the 2024 taxation return which he prepared. He was paid $13,406 from the ATO by way of refund and that payment related to the insurer withholding money for tax. This payment represented a partial refund of some of the taxation payments paid;
(l) Paperpile.com was a tool related to a research paper such as for wastewater plant and was a way of uploading the references used in the paper. The research paper was for “education and work” for a wastewater treatment plant and an underground tunnel (trains and cars) and was study for engineering purposes. That research had been completed;
(m) in May 2024 the applicant bought items to repair the bathroom taps;
(n) the applicant obtained his responsible service of alcohol certificate (RSA) in November 2024. He then obtained work at the [redacted] and [redacted], both in Oxford Street and at [redacted] working in stocks and sales;
(o) the work at [redacted] commenced “last week” and was two days a week, four hours a day;
(p) the applicant still worked at [redacted], two days per week, for the last four weeks. The shift hours varied and generally lasted four to six hours;
(q) the applicant worked at the [redacted] before the [redacted] and that employment lasted one or two weeks;
(r) the applicant stated that deposits made by “[BOJ]” was by a friend who appeared to use his account for an unspecified purpose, and
(s) payment to “GoDaddy” was a computer expense for a web page, and
(t) payment to “Quillbot” was a paraphrasing tool for writing.
The applicant agreed he was now employed in two jobs.
The applicant was trying to get work for the business but had been unsuccessful. Various payments were for the computer so that he could operate that business and obtain work.
The applicant had completed a civil engineering degree in 2023 and was trying to obtain work from home in that business.
The respondent accepted the minimum wage was $24 per hour. The applicant thought he was paid more than the minimum wage for the recent employment.
The respondent asked the applicant about the notices of assessments from 2021. These were completed by the applicant except for 2021 which was completed by a tax agent.
Tax was withheld by the insurer. The applicant received refunds as follows:[4]
(a) 2021 in the amount of $7,839.21;
(b) 2022 in the amount of $13,150.88;
(c) 2023 in the amount of $13,099, and
(d) 2024 in the amended amount of $13,813.98.
[4] Applicant’s late Application from p 362.
In 2024 there were amendment of the taxation return due to a tax audit. In the amended return there were deductions for work related self-education purposes ($2,000) and work-related expenses ($4,250). The work-related self-education related to matters such as the research paper. The use of the car was a work-related expense which the applicant inconsistently stated he did not use for work.[5]
[5] Applicant’s late Application from p 370.
There was a change in assessable gross income in the amended 2024 taxation return from $27,856 to $34,576.[6]
[6] Applicant’s late Application, p 370.
The respondent referred to gross payments made by ICARE in the 2024 financial year of $50,696 less tax withheld of $16,474 leaving a net balance after tax of $34,222.[7] The applicant agreed with these figures.
[7] Application, p 291.
The respondent referred to the discrepancy with respect to the reported gross taxable income and suggested that the amount of $50,696 should have been declared to the tax office. [BOH] was warned and declined to answer that question.
The applicant stated he did not lodge business returns as the business earnt no income.
[BOH] agreed that he only advised the insurer today of his recent employment. He said that he informed his doctor.
[BOH] completed the RSA course in November 2024 and was then looking for work directly at hotels. This employment at the hotels was casual labour-intensive work. The applicant signed a written contract with [redacted] and only worked at the [redacted] for one week.
With respect to [redacted] there was no written contract which commenced in early January 2025. [BOH] had not been paid for that work. There were payslips and a written contract with [redacted]. Documents were then provided by [BOH] to the respondent which formed the basis of the further late application filed by the respondent and admitted into evidence.
Quantum corp report
The ASIC documents show that the applicant is the sole director and shareholder of [redacted] Pty Ltd which was known as [redacted] Pty Ltd until 5 September 2024.[8]
[8] Respondent’s late Application, p 27.
The services provided by the company stated in accompanying documentation include structural engineering, geotechnical engineering, “building envelope”, construction engineering, fire engineering, civil engineering and environmental engineering for various projects such as water treatment plants, roads, tunnels, hydroelectric and solar power.[9]
[9] Respondent’s late Application, pp 30-32.
A document on a website states:[10]
“[redacted] Pty Ltd specialises in delivering comprehensive civil engineering and construction services. We focus on high-rise residential and commercial projects, mixed-use development, and infrastructure integration. Our capabilities include project management, independent engineering reviews, and detailed technical specifications to ensure safety, efficiency and quality. With expertise in zoning approvals, state-of-the-art building design, and managing large-scale projects from concept to completion, we provide tailored solutions that meet both client and regulatory requirements. We are committed to delivering innovative, cost-effective and environmentally sustainable results.”
[10] Respondent’s late Application, p 42.
It appears that the company has undertaken no work but holds itself out as highly capable of undertaking complex civil engineering projects.
Statement
The applicant provided a detailed statement dated 23 April 2024 which was revised on
5 October 2024.[11][11] Application, p 1.
The applicant travelled from Sydney to Newcastle for the purposes of conducting electrical work for the respondent. References were made to issues pertaining to the defective ladder resulting in a fall causing damage to the shoulder, thoracic spine and possibly a head injury. The claimant stated that the spine forcibly impacted upon the ladder and a metal tool inflicted a puncture wound on the left hip which became dislocated.
The applicant was transported to John Hunter Hospital and discharged on the same day so he could return to Sydney. He said on the second day he awakened in severe pain in the head, back, eyes and entire spinal region.
The applicant referred to various treatment undertaken by specialists including injections on the occipital nerve and scapular nerve and radiofrequency ablation on 2 April 2022.
The applicant detailed the various scans and extensive medication following the accident including a suggestion that the X-ray of 24 December 2022 referred to a “spinal fracture (not mentioned)”.
Within the statement are various expressions of medical opinion for which the applicant is not qualified. Examples within the statement include:[12]
“I am variance in regrowth of my nerves, and I continue to feel agony when I sense the parts that were previously injured.”
“Following the MRI examination of the cervical spine, the presence of an annular feature has been verified, which is responsible for the occurrence of head injuries pain that spreads to the anterior neck and shoulder.”
“A subsequent examination was carried out utilising CT scans of the cervical and thoracic regions. These scans are verified the prior findings of cervical lordosis and thoracic kyphosis, indicating strength and thoracic spine. This condition requires significant force to occur and is resulting in breathing issues. If there are two fractured ribs and thoracic kyphosis, it indicates that the cluster vertebral joints are not functioning properly. This is evident in irritations experience when pressure is exerted while lying backwards on a chair or couch, or while lying on the side.”
“The presence of minor facet arthritis in the lower back, knee, hip, and sacrum suggest that the hip happens to have been dislocated. However, additional testing is needed to confirm this.”
[12] Application, p 10.
The applicant concluded that he sustained a significant injury resulting in multiple fractures, dislocations and puncture wounds which have impacted on his daily life including difficulty breathing, persistent pain and mobility issues. The medical evidence provided by various specialists indicate ongoing issues and the need for continued medical care. The incident involved the ladder raised questions of unsafe workplace health and safety practices. The applicant noted the opinions and recommendations of medical professionals, including the need for surgery, ongoing treatment and the impact on his health which should be considered when evaluating the claim.
The applicant provided a further comprehensive statement dated 25 April 2024.[13] [BOH] stated that the injuries have “significantly restricted his ability to perform his job duties” and that the evidence “clearly demonstrates partial incapacity for work”. The applicant repeated that he had suffered spinal and rib fractures, head and neck injury, hip and lower back dislocation and extensive musculoskeletal damage as well as psychological injury.
[13] Application, p 54.
The applicant referred to breaches by the employer of the Work Health and Safety Act 2011 in that this was a dangerous incident within the meaning of s 38 as the event was caused by unfit plant and involved a complete or partial collapse of the structure.
The applicant provided a calculation of acceleration of his body during the fall at 10.01m per second squared.[14] I noted during the hearing that the calculation of this acceleration was greater than the acceleration due to gravity of 9.8m per second squared. [BOH] agreed with the acceleration of an object due to gravity but supported his calculation.
[14] Application, p 62.
[BOH] described his injuries as head injury which involved traumatic brain injury, cervical whiplash including mild disc herniations causing nerve compression, two broken ribs affecting the chest wall shoulder and neck, thoracic kyphosis resulting in significant pain and functional limitation, dislocated hip, puncture in the lumbar region causing significant functional impairment, issues in the thoracic spine and moderate hypertension.
[BOH] further described the injuries including impairment of visual concentration involving the inflammation of the occipital nerve, the denting of the cranium which caused the nostrils to produce a clicking sound that causes them to obstruct and re-obstruct. Further symptoms including radiating heat sensation originating in the neck and spreading to the front shoulder and torso, sharp pain from the posterior region of the spine travelling to the thorax, rib fractures causing the thoracic region to be extremely taught causing nausea, constant burping, dizziness and vomiting, clicking sound in the front shoulder near the neck collarbone, rib fractures in the left side penetrating into the system, coastal cartilage fractured with ongoing discomfort, stabbing pain between the pelvic sacrum and lower lumbar spine due to dislocated left hip and urinary contraction.
The applicant referred to the ablation to the scapular nerve which he indicated had regenerated and successfully regraded indicating that the lower part of the scapula was torn. Further injuries included to the lumbar spine which was seen on the bone scan. There were torn ligaments in the ribs with compression of the thoracic spine causing kyphosis.
The applicant indicated that his whole person impairment was approximately 51% which indicated severe disability with significant impairments across multiple body systems and functions and emphasised the need for comprehensive medical care and long-term rehabilitation.
Certificates of capacity
Recent certificates of capacity issued by the general practitioner (GP) indicate that the applicant suffered soft tissue injury to the neck, back, hips, knees, lower legs, axillae and somatic symptom disorder and certified the applicant with no current work capacity.[15]
[15] Applicant’s late Application, pp 259-267.
Immediate attendance at hospital
The applicant was admitted to John Hunter Hospital immediately following the work injury.[16] The clinical notes indicate that the applicant had a fall from a ladder of 2.5m, injury in the mid thoracic and right scapular pain with a denial of neck pain and nil motor or sensory deficit. There was no head strike, no loss of consciousness and no complaints of neurological symptoms or other injuries.
[16] Applicant’s late Application, p 136.
The CT scan of the spine was reviewed which showed no evidence of fracture. There was a comment that the applicant wished to leave early to travel to Sydney. The doctor noted:[17]
“Risk of leaving without formal report explain, explain it could miss a serious fracture which could worsen and cause serious injury such as paraplegia/quadriplegia or death. Patient excepting of this risk and still wish to leave.”
[17] Applicant’s late Application, p 138.
Scans
The CT scan of the thoracolumbar spine dated 25 January 2021 showed normal vertebral body height and no acute fracture or dislocation.[18]
[18] Applicant’s late Application, p 268.
The MRI scan of the whole spine dated 27 March 2021 was described as within normal limits for the patients age with no spinal cord signal abnormality and no canal narrowing or visualised exiting nerve root impingement at any level.[19]
[19] Applicant’s late Application, p 269.
The whole-body bone scan dated 29 April 2021 showed focal isotope uptake in the right 3rd and 4th right ribs consistent with trauma and mildly active facet joint arthropathy in the right side C3/4 facet joint.[20]
[20] Applicant’s late Application, p 270.
This scan explains the rib fractures sustained in the work injury.
The MRI scan dated 27 July 2021 was described by the radiologist as unremarkable with no ongoing evidence of rib fractures.[21] The MRI scan of the brain was normal.
[21] Applicant’s late Application, p 271.
The MRI scan of the cervical spine dated 6 September 2022 showed multilevel slight disc bulges with a fissure at C4/5.[22]
[22] Applicant’s late Application, p 273.
The CT scan of the spine dated 8 February 2023 showed straighten cervical lordosis, no significant disc protrusion, straighten thoracic kyphosis with no significant disc pathology and no significant disc pathology in the lumbar spine.
The CT scan of the chest showed no evidence of fracture, particularly within the rib cage.[23]
[23] Applicant’s late Application, p 276.
The MRI scan of the lumbar spine dated 8 February 2023 showed mild facet arthrosis at the L5/S1 level.[24]
[24] Applicant’s late Application, p 277.
Medical reports
Dr Charles New, orthopaedic surgeon was qualified by the applicant’s solicitors and provided a report dated 29 September 2022.[25] Dr New noted a history of injury when the applicant fell off a ladder striking his head, shoulder, ribs and lower limbs with injuries to the cervical, thoracic and lumbar spine and multiple rib injuries with pain in the right shoulder, pain in both hips and both lower limbs.
[25] Applicant’s late Application, p 142.
Dr New described the applicant as “excellent spoken in English and is fluent in French and Arabic”.
Dr New noted the pain disability assessment with pain from the top of the cranium to the right lower leg including pain throughout the spine, sacrum and buttocks.
Dr New noted that the applicant provided a history that sexual relations with his partner were almost absent because of pain. The doctor provided no findings on causation.
Mr Awit, psychologist, provided a report dated 5 October 2024. The report states that it was prepared for [BOH]’s court appearance for criminal charges. The report refers to three charges of using “carriage service to menace/harass/offend”. This is consistent with comments in an earlier conference when [BOH] stated that this report was prepared for criminal charges in relation to the threats made by him against the insurer’s employees in the first half of 2024.[26]
[26] Applicant’s late Application, p 155.
Mr Awit diagnosed the applicant is suffering from post-traumatic stress disorder and persistent depressive disorder. History included problems at schooling, civil unrest in Lebanon due to the ongoing war and fears relating to the applicant’s sexuality.
Mr Awit noted the applicant’s formal qualifications and that he wished to undertake a Bachelor of Political Social economical sciences next year with honours. The psychologist noted that the applicant had opened a business, had a web page for his business but had never proceeded with any work.
Mr Awit opined that the applicant was suffering from severe levels of depression, anxiety and moderate levels of stress at the time of the assessment and concluded that the applicant suffered from post-traumatic stress disorder.
Dr Raoul Pope, neurosurgeon, has provided a series of reports. In a report dated
16 March 2021 Dr Pope reviewed the thoracic spine CT scan which he noted showed good alignment, no disc bulging, no canal stenosis and no fractures. The doctor noted that the complaints of whole-body pain on the right side with altered sensation did not fit any particular diagnosis. However, the doctor wished to rule out cranial abnormalities and recommended a CT brain scan and MRI scan of the whole spine.[27][27] Applicant’s late Application, p 172.
Dr Pope provided a further report dated 14 April 2021 having reviewed the further scans.[28] The doctor commented that the MRI of the cervical, thoracic and lumbar spine was normal for the applicant’s age and sex with no nerve root compression, no disc bulging or annular tearing and no swelling of the vertebral bodies. The CT scan of the brain was normal.
[28] Applicant’s late Application, p 174.
Dr Pope did not provide any diagnosis, noted the applicant does not need any spinal operation and did not need to be followed up for further review. The doctor recommended that the applicant be assessed by a pain management specialist such as Dr Nazha and an occupational physician to examine prospects of returning back to work.
Dr Pope provided a further report dated 20 September 2022 and noted the applicant had undergone nerve blocks which assisted but had not enabled [BOH] to return to work. Review of the MRI scan of the cervical spine was basically normal and described as age-appropriate.[29]
[29] Applicant’s late Application, p 214.
Dr Pope opined that the applicant has “whole body pain and severe catastrophising of his situation”.
Dr Alan Nazha, pain physician, has provided a series of reports. In the report dated
2 June 2021 the doctor noted that imaging was not present for the consultation although a recent CT bone scan demonstrated uptake in the third and fourth ribs.Psychometric test scores reported extremely severe for depression, anxiety and stress with severe pain catastrophising present.
The doctor recommended against combining benzodiazepines with pure opioids due to the chronic pain complaint and otherwise recommended an MRI scan of the brain and right scapular region.
In a report dated 26 September 2021 Dr Nazha opined that there was potential for a myofascial skill component to the pain which can result in functional entrapment of nerves such as the dorsal scapular nerve and the grade of occipital nerve.[30]
[30] Applicant’s late Application, p 178.
In a further report dated 20 December 2021 Dr Nazha noted an initial positive response to a diagnostic dorsal scapular nerve injection and greater occipital nerve injection which ultimately did not last with subsequent increasing pain. The doctor recommended radiofrequency therapy to the left dorsal scapular nerve and greater reciprocal nerve and referral to a chronic pain psychologist.
Dr Nazha provided a further report dated 22 June 2022 which noted that he had performed pulsed radiofrequency to the dorsal scapular nerve and greater occipital nerve.[31] The doctor noted that the applicant had organised a second opinion with Dr Chow who had recommended opioid-based medication.
[31] Applicant’s late Application, p 206.
Dr Nazha did not sanction prescription of opioid based medications and suggested that the applicant return to Dr Chow.
A functional capacity report prepared by Work options dated 1 April 2022 noted various restrictions of capacity in lifting, carrying, sitting, standing, walking and reaching.[32] A further report dated 8 September 2022 noted the applicant was working towards attaining tertiary qualifications in civil engineering and had various transferable skills including good communication, customer service, computer skills and other analytical experience.[33] The assessment did not proceed at that time as the applicant did not have clearance to engage in return to work as he was certified as totally unfit for any employment.
[32] Applicant’s late Application, p 190.
[33] Applicant’s late Application, p 192.
Dr Hamid Waqar, psychologist, provided a report dated 25 March 2022 following the referral from Dr Nazha.[34] The psychologist noted the applicant presented with symptoms indicative of major depressive disorder such as low mood, loss of interest in activities to enjoy feelings of hopelessness, feelings of worthlessness and suicidal ideation.
[34] Applicant’s late Application, p 198.
Dr Waqar noted a history that the applicant had difficulties coping with witnessing terrorist attacks in Lebanon before migration and recently learning of a terrorist attack which took place in Beirut in 2020. Other relevant histories included that the applicant’s parents were unaware of his sexual orientation which limited their relationship and previous bullying at schooling in Lebanon.
According to the information provided by the applicant Dr Waqar opined that the DSM-V criteria for post-traumatic stress disorder and major depressive disorder were met. Psychometric testing showed that the applicant had severe catastrophising of his pain.
In a further report dated 15 January 2024 Dr Waqar noted that the applicant had been struggling with job applications and was unsure that his body could withstand full-time work due to the constant pain, particularly in the thoracic spine which was affecting breathing. The doctor noted that the applicant had attempted to establish his own business and construction management but face challenges with advertising costs and software requirements.[35]
[35] Applicant’s late Application, p 242.
Dr Chow, pain specialist and anaesthetist, provided a series of reports. In the initial report dated 20 May 2020 the doctor noted the applicant had a chronic widespread body pain likely central sensitisation, anxiety and post-traumatic stress disorder with pain catastrophising. The doctor recommended reduction of pharmacotherapy and recommended treatment directed to the post-traumatic stress disorder which he described as significant.
In a further report dated 26 May 2022 Dr Chow noted significant benefit from the use of clonidine. The doctor opined that this confirmed that the pain was likely driven by the muscular tension seconder secondary to the untreated post-traumatic stress disorder.[36]
[36] Applicant’s late Application, p 204.
Dr Jame Yu, pain specialist, provided a report dated 1 September 2022.[37] The applicant presented with widespread body pain including headaches, cervical pain, thoracic back pain, chest wall pain, bilateral upper limb pain, lower back and bilateral lower limb pain.
[37] Applicant’s late Application, p 211.
Psychometric testing undertaken by Dr Yu showed severe pain catastrophising, fear avoidance, extremely severe stress, anxiety and depression.
Dr Yu recommended that, due to the persistent widespread body pain with physical deconditioning and psychological issues, the applicant undertake a multidisciplinary pain management program. The doctor did not recommend the applicant continue with Palexia due to the risk of opioid dependency and encouraged an exercise regime.
The applicant in submissions referenced the pain diagram, which he stated were within
Dr Yu’s records, which showed pain throughout the right side of the body and the left hip and left upper limb.[38][38] Applicant’s late Application, p 227.
Dr Yu provided a further report dated 5 June 2023 which noted the applicant again presented with persistent widespread body pain with the pain diagram extended from the head down to the lower limb. The doctor noted the applicant had completed the RESTORE pain management program but that the applicant continued to believe that the widespread body pain was related to spinal issues.
Dr Yu noted the pain management team, which consisted of a pain physiotherapist, psychologist and psychiatrist had challenge the applicant’s unrealistic belief with extensive pain education but that the applicant continued to believe that the pain was originating from the cervical and thoracic spinal problem.
Dr Yu noted there was no role for any surgical intervention or spinal injection and encouraged ongoing multidisciplinary pain management which the applicant had declined. The doctor noted that the applicant preferred a surgical fix to his chronic pain and reiterated to the applicant that there was not appropriate.
In a report dated 13 February 2023, Dr Coleman, GP noted that the applicant had been experiencing significant pain in the entire spine predominantly in the cervical region with bilateral neuropathic pain in the upper limbs for 2 ½ years. The doctor noted that the full spine MRI and CT scans were reported as no abnormality but that the applicant continued to experience significant unexplained pain.[39]
[39] Applicant’s late Application, p 219.
Dr Adrian Havryk, respiratory and sleep disorder physician provided a report dated
12 May 2023.[40] The doctor opined that the applicant had a chronic pain syndrome, and it was unlikely that will be any physical intervention which would improve matters. The doctor opined that respiratory function was normal and that the applicant attended the gym every second or third day.[40] Applicant’s late Application, p 239.
Applicant’s recent medico-legal reports
Dr Gorman was qualified by the applicant’s then solicitors and provided a report dated
22 August 2024.[41] Dr Gorman noted the applicant was attempting to establish his own business and construction management but was facing challenges with advertising costs and software requirements.[41] Applicant’s late Application, p 146.
Dr Gorman is a consultant physician in general medicine, medical oncology and pain medical medicine specialist. The relevance of the doctor’s expertise is discussed later in these reasons.
Dr Gorman noted that the applicant had attempted to establish his own business in construction management was facing challenges with advertising costs and software requirements. Previous education included a certificate IV in construction management and a diploma of construction management at TAFE and completion of a Bachelor of Civil Engineering in June 2023.
Dr Gorman noted the observations of Dr David Gronow in a report dated 5 July 2022 that the present level of reported disability was inconsistent with the physical findings, and he believed there was marked level of dysfunction and reported mood changes and psychological impact with the injury.
Dr Gorman’s examination findings were normal range of motion throughout spine with no tenderness, no neurological signs in the upper and lower limbs with the reported “crack” in the thoracic spine when bending forward.
Dr Gorman opined that the applicant presented with widespread symptoms associated with psychological distress and believes the diagnosis was “somatic symptom disorder”.
Dr Gorman stated:“While I am not a consultant psychiatrist, I am experienced in making this diagnosis and believe that his psychological distress in association with widespread pain focus with no organic abnormalities is consistent with this diagnosis.”
Dr Gorman provided detailed analysis of Dr Gronow’s report dated 5 July 2022. Dr Gorman stated:[42]
“… Dr Gronow’s report in detail. He also did not feel it appropriate for him to have a right stellate ganglion block or ketamine infusion. He felt his level of incapacity was not consistent with the injury and did not specifically find any psychological or psychiatric diagnosis, although he did mention that ‘a possible diagnosis would be a neurological function disorder’ in his ‘opinion and diagnosis.
What Dr Gronow meant was a ‘functional neurological disorder’. This is a somatisation disorder as his somatic symptom disorder. Usually one would use the diagnosis ‘functional neurological disorder’ if there were marked physical abnormalities in association with that pain (which is not in [BOH]’s case).
I believe that therefore it is more appropriately described as a ‘somatic symptom disorder’.
Please note that in marking the diagnosis of “somatic symptom disorder”, following the work injury, I am arguably making a diagnosis which should be made by a consultant psychiatrist. It would be appropriate that a consultant psychiatrist review him with regard to this diagnosis has been the physical effects of the injury are minimal, but the disability is major and may be continuing. A consultant psychiatrist may be able to confirm my diagnosis and also give some better idea of a prognosis.
In summary, Dr Gronow’s assessment is similar to mine and he even mentions the possibility of a somatisation disorder. I believe that [BOH] does have a somatic symptom disorder which has been recalcitrant to treatment.”
[42] Applicant’s late Application, pp 153-154.
Respondent’s recent medico-legal reports
Dr Abhishek Nagesh, was qualified by the respondent and provided a report dated
24 November 2023.[43] The doctor noted a history that the applicant became depressed in the context of pain because he was not as active as before, was worried about his future, was worried about his health, his appetite was affected, he had no energy or notification motivation, felt worthless, fleeting suicidal thoughts, not able to sleep because of pain and his ability to concentrate was diminished.[43] Reply, p 265.
Dr Nagesh recorded a history of loss of social contact, diminished memory and concentration and an inability to perform a variety of activities due to pain. The doctor recorded a denial of any previous history of mental illness although there was an admission that the applicant was exposed to warfare in Lebanon.
Dr Nagesh did not diagnose post-traumatic stress disorder as there was a denial of having nightmares or flashbacks associated with the work event and there were no arousal symptoms. The doctor diagnosed the applicant as suffering from major depression and provided the following reasons:[44]
“In my opinion, the worker meets the criteria for major depression of moderate degree with anxious distress, and specific phobia of ladders. In my opinion, there has been a slight improvement in his depressive and anxiety symptoms, where his mood is better. His sleep fluctuates. His appetite is getting better. He still remains quite lethargic. His ability to concentrate depends on his level of pain. He does not feel worthless anymore and he is able to enjoy certain activities like cycling and swimming, unlike before. In my opinion, his diagnosed major depressive disorder is in partial remission.”
[44] Reply, p 269.
Dr Nagesh opined that the applicant remained symptomatic and was currently totally incapacitated and had no capacity for suitable duties.
Dr Nagesh provided a further report dated 5 December 2023 having been provided with a report by “Quantum corp”. The doctor stated:
“I refer to the investigation report by Quantum corp which states the claimant has been running his own business. Since the claimant has the capacity to run his own business, I am of the opinion he is not incapacitated for work.”
Dr Nagesh otherwise stated:[45]
“In my opinion the online investigation report suggests the worker is working full time and he is running his own business. Hence, I am of the opinion the worker has capacity to work full time in suitable duties which is running his own business.”
[45] Reply, p 274.
Dr David Hale, orthopaedic surgeon, was qualified by the respondent and provided a report dated 7 February 2024.[46] The doctor noted that the applicant stated that he dislocated his left hip in the accident but that there was “no definite record of this”.
[46] Reply, p 275.
Dr Hale noted the applicant reported ongoing diffuse body pain following the work injury which was not consistent with any musculoskeletal diagnosis. The doctor diagnosed diffuse body pain and “previously diagnosed chronic pain”. Under the heading “Any other causative factor”, Dr Hale stated:[47]
“It is indicated elsewhere that he has developed a chronic pain syndrome and possible PTSD as a result of the work related injury but this is out of my area of expertise.”
[47] Reply, p 283.
Dr Hale indicated that the applicant was fit to work as a civil engineer and that there was no evidence that the applicant would benefit from any other treatment apart from an ongoing exercise program.
I read Dr Hale’s conclusion on capacity as an expression of fitness for work based on the musculoskeletal diagnosis.
Hospital admissions in 2024
The applicant was admitted to hospital involuntarily on at least three occasions in 2024 following threats of violence against third parties associated with the denial or liability by the insurer, prior proceedings and suggestions of self-harm.
Contrary to the respondent’s submissions, the clinical notes are detailed and the summary within these reasons provides adequate recognition to the treatment provided by the various specialists.
The applicant was involuntarily sectioned to St Vincent’s Hospital on 6 June 2024 following threats to the insurer’s employees.[48] The clinical records refer to chronic pain and extensive somatic complaints.[49]
[48] Respondent’s late Application, p 157.
[49] Respondent’s late Application, p 161.
The records of Dr Davis, psychiatric registrar refer to the workplace, lack of diagnosis to explain symptomatology, financial issues, legal dispute with the insurer, anger at the injustice of the situation and suicidal ideation.
Dr Davis noted:[50]
“Discussed his symptoms. Multiple symptoms that are largely illogical and don’t make medical sense. Describes concerns that his is dropping down into his stomach at times. Feels that his diaphragm is also loose. He feels his ribs never healed any can feel them poking him. Feels his oesophagus is misplaced. Feels his shoulder is severely damaged. Feels his hip joint pushing into his hips when he sleeps. Feels burning pains into his hand. Multiple illogical complaints that don’t make medical sense.
Feels like his body is rotting and falling apart. Feels like the [??] between his vertebrae is weakening and spine is going to come apart. Worries that he will not be alive in 10 years to do his body falling apart.”
[50] Respondent’s late Application, p 172.
The doctor noted that the various scans and images showed no fractures or abnormalities. Dr Davis noted that the applicant thought that the insurance companies were getting to the doctors and that the respiratory specialist was an insurance company plant and that someone from insurance company was recently following him in the car while he was cycling.
A conversation with the applicant’s partner noted the applicant spent most of his time worrying about his pain and looking at images of the scans to the point that it consumed him and that the applicant had voiced the view that the illness would kill him in a reasonably short period.[51]
[51] Respondent’s late Application, p 174.
Dr Davis concluded:[52]
“I believe that [BOH] is psychotic, with prominent somatic delusions and some persecutory delusions and misinterpretation of normal body sensations. Some of the paranoia reinsurance agency, may be based in reality, re-surveillance for fraud. His Mood is incongruent. Diagnosis - somatic symptom disorder requires a further period of observation. Diagnosis psychotic depression.”
[52] Respondent’s late Application, p 175.
The applicant was sectioned under s 22 of the Mental Health Act, 2007 on 25 July 2024. The St Vincent Hospital records refer to the history of suicide ideation over the last six months in the context of chronic pain over the previous four years and that the applicant wanted to “end this endless pain”.[53]
[53] Respondent’s late Application, p 78.
The applicant described the pain as “the ribs aren’t attached to my spine” and reported clicking sounds. Those comments are recorded elsewhere in the various records.
On 26 July 2024 Dr Huber noted the applicant’s ongoing outrage and perception of his treatment from the insurance company and his sense of injustice which had driven various behaviours including intimidation and threats towards staff of the insurer and suicidal ideation which had now become chronic.[54]
[54] Respondent’s late Application, p 82.
Dr Huber noted the applicant’s preoccupation with his somatic experience who described multiple varied experiences including clicking, unable to take a deep breath, sensing his heart is lower in his chest then it used to be, various pain throughout the body and recurrent headaches. When challenged by the doctor the applicant respondent that “his experience is his experience and I am not in his body”. Dr Huber wrote:[55]
“We went through the diagnostic criteria for somatic symptom disorder and he said that as long as I wasn’t implying that his symptoms are ‘in his head’, he agrees that his symptoms satisfy these criteria. I think it is likely that he that his fall directly caused the syndrome.”
[55] Respondent’s late Application, p 83.
REASONS
A brief statement is required for the reasons for determination.[56] The applicant otherwise bears the onus of proof on the balance of probabilities.[57]
[56] Section 294(2) of the 1998 Act.
[57] Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 per McDougall J at [44]-[55], McColl and Bell JJA (as their Honours then were) agreeing; Chen v State of New South Wales (No 2) [2016] NSWCA 292 per Leeming JA at [33]-[34]; McColl JA agreeing at [1].
Applicant’s credit
The respondent submitted that the applicant’s evidence would not be accepted. For the following reasons I accept portions of the respondent’s submissions and do not accept the applicant’s evidence unless there is corroborative evidence.
For the reasons articulated later, I accept that the applicant believes that he suffers chronic pain with a belief that there are serious issues with his body not explained by a multitude of scans which are basically normally and otherwise represent mild age-related issues.
The respondent submitted that the applicant failed to make full and proper disclosure of his taxation returns and bank statements. It noted that directions were required to produce bank statements.
[BOH] did not provide his taxation returns and in earlier conferences stated that he did not know what they were despite the fact that he prepared them.[58] [BOH] produced some, but not all of his financial records and no taxation returns evidenced by the recorded conferences in this matter. Accordingly, the insurer was given leave to issue directions for the various financial records.
[58] Save as to the 2021 return.
As I noted earlier, the documentary evidence produced by Icare showed workers compensation payments in the 2024 financial year of $50,696. The assessed amended return by the ATO showed declared income of $34,576. Both the assessed annual return and the Icare document showed taxation payments made by Icare for the 2024 financial year of $16,474.
The gross income declared by the applicant was revised upwards from the initial return of $27,856 to the amended return of $34,576.
The amended declared gross income ($34,576) was close to but not quite the net income of workers compensation payments paid by Icare ($50,696 gross less $16,474 taxation withheld totalling $34,222).
The applicant was asked to explain the discrepancy between gross payments made by Icare and that declared in his annual return. [BOH] declined to answer after being warned that he did not have to answer the question due to the possibility of self-incrimination.
Based on these documents and noting the serious of the allegation, I conclude that the applicant understated his gross income in his initial return and his amended return for the 2024 financial year. This conclusion shows that the applicant is prepared to deceive others for personal gain.
The respondent submitted that the applicant failed to disclose his work over the last three months, and it was hard to know what he was earning in his business. However, the respondent had access to the applicant’s bank records and it accepted that there was no business income disclosed in the bank records.
There have been various preparatory matters undertaken by the applicant in creating and organising the business including research. However, consistent with the absence of record of any money coming into the bank accounts associated with the company, I accept that
[BOH] has not undertaken any paid employment in the business.The respondent noted that the report to Quantum corp showed a change in the company name on 3 September 2024. It noted that the timing occurred between the discontinuance of the prior proceedings and the institution of the current proceedings. The respondent submitted that this was designed to hide the business.
This last submission was not put to the applicant even though the respondent was given latitude in the scope of its questioning. There can be many reasons for changing the name of a business. The name change does not alter the applicant’s connection with the business which is readily identifiable through company searches. This submission is speculative and is rejected.
I do not consider the late disclosure of recent employment adverse to the applicant’s credit. The work has arisen since the last preliminary conference, and I accept that the applicant did not appreciate that this should have been disclosed earlier. Further, there was no attempt to hide the work when the applicant was questioned and indeed this employment was volunteered.
The respondent submitted that the applicant was inconsistent and inaccurate to doctors in various matters. It referenced a few examples.
Dr New recorded in September 2022 that there was an absence of sexual relations with the applicant’s partner “because of pain”.[59] In November 2023 Dr Nagesh recorded that there was a significant decrease in social life and the applicant has “lost contact with the majority of his friends as he cannot socialise”.[60]
[59] Applicant’s late Application, p 145.
[60] Reply, p 267.
In the St Vincent’s Hospital clinical notes dated 25 July 2024 it was recorded that the applicant lives with his partner, has an “open relationship” and engages with “multiple sexual partners (MSM) with unprotected sex”.[61]
[61] Respondent’s late Application p 78.
I accept the clinical record in July 2024. It is an example, as the respondent submitted, of a lack of proper disclosure and inconsistencies provided by the applicant to the various medical practitioners.
The respondent referred to the inconsistencies of the reported history of prior depressive symptoms and the absence of disclosure to various doctors. It described these histories as “incomplete”.
In August 2015 the applicant attended the Eastern Suburbs Community Health Service with suicidal ideation in the context of a relationship breakdown.[62] Subsequent notes suggest that there was no evidence of psychosis or depression at that time and the diagnosis was “situational crisis”. A subsequent note from the GP referring to this event stated that “[BOH] has a history of suicide threats when in crisis.”[63]
[62] Respondent’s late Application, p 279.
[63] Respondent’s late Application, p 281.
The respondent referred to the history provided to Dr Nagesh of no previous psychiatric history and contrasted this with the above note in 2015 and the history recorded by
Dr Waqar[64] that there was a history associated with bullying at school and terrorist attacks in Lebanon.[64] Application, p 195.
Similarly, [BOH] misquoted doctors such as when reporting to Dr Nazha that Dr Chow recommended use of opioid base medication when Dr Chow made no such recommendation.[65]
[65] See at [95] herein.
These are examples of a pattern that [BOH] is inaccurate in his reporting.
The applicant informed Dr Havryk that he went to the gym every two or three days. That pattern of activity is inconsistent with the gross level of pain the applicant portrayed during the hearing and stated to various medical practitioners.
The respondent relied on the applicant’s repeated submission that there was documentary evidence establishing a spinal fracture when this was incorrect.
[BOH] repeatedly submitted that there was documented radiological evidence showing a spinal fracture. When pressed on this submission, he eventually conceded that there was no documentary evidence that supported a spinal fracture, but that an unknown doctor told him there was one and his view of the scans showed a fractured spine.
I have addressed this matter under the heading “Spinal fracture”. The respondent correctly submitted that the applicant made submissions on this matter which were incorrect. His repeated statements that there was documentary evidence was plainly wrong and misleading.
This is another example casting doubt on the applicant’s credit and reliability.
The respondent relied upon the various threats made by the applicant against the insurer’s representatives and his former solicitors.
In a letter dated 4 June 2024 the insurer asserted that [BOH] made physical threats of violence against doctors and employees of the insurer.[66] These threats resulted in [BOH]’s involuntary admissions to hospital.[67] During a previous recorded conference it appears that [BOH]’s conduct was dealt with under the provisions of the Mental Health Act.
[66] Reply, p 91, p 95.
[67] Reply, p 93.
During the respondent’s submissions [BOH], after reading this correspondence, interrupted and described the insurer’s conduct as “very offensive”. He did not seem to appreciate that his own conduct was unsatisfactory, using a mild term to describe the nature of the applicant’s threats against employees of the insurer.
In a response to a letter from the respondent to cross-examine, the applicant advised that he was going to “pursue legal action under criminal law for the harm caused to him by the insurer’s representatives”.[68]
[68] Respondent’s late application, p 3.
In a letter dated 7 January 2025 [BOH] threatened criminal action against “individuals” for “actions that constitute torture and gross misconduct”. The text of the letter, whilst unclear, suggests that this relates to being required to engage in “employment activities that were unsuitable and inappropriate given my physical condition”.[69]
[69] Respondent, further late Application, p 15.
Mr Lichaa described the threats of litigation as “baseless and vexatious” and goes to whether the applicant was accepted as a credible witness.
[BOH] also made threats against his former solicitors which included possibly blowing up a building.[70] In July 2024 there were reports of fantasies of hurting people and an acknowledgement “that people may feel intimidated by him”.[71]
[70] Respondent’s late application, p 114.
[71] Respondent’s late application, pp 83-84.
The applicant’s pattern of threatening behaviour is unacceptable. [BOH] has made threats of physical violence against the insurer’s representatives and former solicitors. It appears that he was charged, and portions of this conduct treated under the Mental Health Act.
I do not condone the appalling pattern of threatening and abusive behaviour. I have otherwise formed an adverse view of the applicant’s credit. I put this pattern of behaviour to one side as being relevant to the determination of credit although others may consider that the conduct directly relates to credit. I note that portions of the conduct seem to have been accepted by the Courts as due to a psychiatric condition and addressed accordingly.
Based on the credit findings I do not accept the applicant’s submission and assertion that the medical records are wrong and that histories have been incorrectly recorded by various medical practitioners.
Spinal fracture
[BOH] frequently submitted that the work injury caused a spinal fracture. On several occasions [BOH] stated that he would refer to the documentation which established that he sustained a spinal fracture in the work injury.
[BOH] ultimately conceded that he relied on what an unknown doctor advised him and his reading of the radiological evidence as he knew “his own body”. Reference was also made to an X-ray on the day of the accident.
The initial hospital record indicated that the applicant should wait and that a further review of the X-ray may reveal something more serious in the spine. The applicant, who castrophises matters, may have heard the doctor refer to the possibility of a more severe injury and convinced himself that he was told that there was a spinal fracture. I accept that this is speculation but it may explain the applicant’s hearsay assertion..
[BOH] otherwise relied on his experience as a civil engineer, to justify that a fall of 2.5m would cause multiple injuries and spinal fractures.
There is no basis to conclude that that [BOH]’s completion of a Bachelor of Civil Engineering creates a medical expertise to provide an opinion that a fall may cause a spinal fracture or any other injury.
The matters relied upon by [BOH] in support of the spinal fracture hypotheses are unsatisfactory and unreliable “evidence”. The assertion is contradicted by several radiological reports that do not refer to a spinal fracture. There is otherwise no mention in the medical evidence referenced by the parties that there was a spinal fracture.
Given the findings on [BOH]’s credit, I otherwise do not accept the hearsay of a supposed spinal fracture diagnosis provided by an unknown doctor. I do not rely on
[BOH]’s reading of the scans as he does not have the expertise in circumstances where various radiologists have not identified a spinal fracture.
Accordingly, I am not satisfied that the work injury caused a spinal fracture.
Disputed physical injuries
[BOH] alleged the work injury caused several physical injuries based on his statement evidence set out early. The various injuries are not supported by the medical evidence referred by the parties and set out earlier in this decision.
The injuries accepted by the respondent were:[72]
“Strain of muscle, fascia and tendon at neck level; Unspecified sprain of left hip; Strain of muscle, fascia and tendon of lower back; Contusion of left lower leg; Unspecified sprain of right hip; Injury of axillary nerve, unspecified arm; Contusion of right lower leg.”
[72] Application, p 24.
The respondent also accepted that the applicant sustained a single episode of a major depressive disorder.[73]
[73] Application, p 34.
The respondent denied various injuries in a relevant notice. The disputed injuries were described as:[74]
“We dispute that you have suffered any spine fractures, internal puncture wound, post-traumatic stress disorder, spinal compression, hypertension, whiplash, chronic pain syndrome or thoracic kyphosis as claimed as a result of your injury at work on 24 December 2020.”
[74] Application, p 358.
There was, as the respondent submitted, no attempt by the applicant to explain how a bachelor’s in civil engineering provided him with expertise to express an opinion on the causal nexus between the work injury and the disputed physical injuries.
There was both an absence of contemporaneous complaint and no attempt to refer to medical opinion which supported a causal nexus between the work injury and the disputed injuries. An example includes an absence of reference to a puncture wound which is not found in the material but consistently referenced by the applicant in the histories he provided to a number of medical practitioners.
[BOH] submitted that the scans were not accurate referring to the normal MRI scan of the right shoulder noting that he had treatment by way of radio-frequency ablation. However, the medical evidence such as from Dr Pope, neurosurgeon, indicated that the scan evidence showed only age-related changes.[75]
[75] See at [79] herein.
I accept that the work injury included two rib fractures. The whole-body bone scan dated
29 April 2021 showed focal isotope uptake in the right 3rd and 4th right ribs consistent with trauma and the contemporaneous hospital notes of pain in that region support that conclusion.The applicant otherwise submitted that the thoracic kyphosis and cervical lordosis indicated injuries due to motor accident without referring to medical opinion on this allegation.
The respondent otherwise referenced the medical opinion of Dr Hale and Dr Gronow which provided a contra medical opinion to the applicant’s assertion.
Further Dr Pope referred to the scans as only showing age-related changes which contrasted with the applicant’s submission that any pathology exhibited on any scan was caused by the work injury.
There is no medical evidence referred to in submissions, apart from general comments in certificates of capacity, that establish that the disputed injuries were caused by the work event.
There is otherwise no medical evidence that these disputed injuries were ongoing at the time when the respondent denied liability in April 2023.
I am not satisfied that the disputed physical injuries were caused by the work injury save as the discussion of the psychological injury set out below.
Psychological Injury
I reject the respondent’s submission that I am required to make a specific psychiatric diagnosis. I repeat and adopt what I stated in BFZ v Inner West Council[76] on this issue. Since these reasons were provided, the Court of Appeal in Wright v State of New South Wales[77] observed that an estoppel arises from a consent finding of psychiatric injury. No specific psychiatric diagnosis was determined in that matter to create an estoppel.
[76] [2024] NSWPIC 167 at [11]-[26].
[77] Wright v State of New South Wales [2024] NSWCA 77 at [43].
There is an abundance of evidence that [BOH] continues to suffer from an ongoing psychological condition similar to a somatic pain disorder or similar chronic pain condition.
The opinions of Dr Nazha, Dr Waqar, Dr Chow, Dr Yu, Dr Havryk and Dr Coleman support that the applicant has a pain condition. These opinions have been discussed earlier. Further, Dr Hale noted this possibility but deferred to other relevant experts.
Dr Yu discussed the attempts made by the Pain management team, without success, to “challenge the applicant’s unrealistic belief with extensive pain education but that the applicant continued to believe that the pain was originating from the cervical and thoracic spinal problem.”[78] His account is consistent with how the applicant presented during the arbitration hearing and the various histories recorded by the medical practitioners.
[78] See [102] herein.
The opinions of the psychiatric registers at St Vincents Hospital in 2024, Dr Davis and
Dr Huber support the conclusion that the applicant suffers from a somatic pain disorder.A summary of the clinical records of the assessments undertaken by Dr Huber and Dr Davis are set out earlier in these reasons. The conclusions provided by Dr Davis and Dr Huber are clearly based on their clinical assessment. Their reasoning is well explained and based on an appreciation that there was and is no underlying physical basis for the applicant’s ongoing complaints of chronic pain.
The respondent submitted that the opinion expressed by Dr Huber was without the benefit of review of the applicant’s entire clinical history and the diagnosis is based on the applicant’s account which is “inaccurate and incomplete”.
Dr Huber undertook the examination on 26 July 2024. His examination findings[79] follows approximately 15 pages of clinical records included a detailed history.[80]
[79] Respondent’s late Application, pp 83-85.
[80] Respondent’s late Application, p 67, p 73.
The records provided by St Vincent Hospital which include the handwritten reasoning of
Dr Davis and Dr Huber are clearly business records. The principles concerning the weight to be attached to business records are dissimilar to the principles concerning the weight to be attached to expert reports. As Beazley JA (as her Honour then was) observed in Hancock:[81]“There is also a question as to whether the principles governing the admissibility of expert evidence, and, in the case of jurisdictions where the rules of evidence do not apply, the weight to be given to expert evidence, had any role to play in the case of reports of an expert, such as a medical practitioner, which come into existence as business records. In Rich & Anor v ASIC [2005] NSWCA 233; (2005) 54 ACSR 365, Handley JA (Giles and Basten JJA agreeing) stated, at [13], that it was " far from clear " that the principle in Makita applied with their full force, or at all, to out of court statements by experts in business records. Although his Honour's observation was made in the context of an evidence-based jurisdiction, there is nonetheless force in his observation.”
[81] Hancock at [93], Giles and Tobias JJA agreeing.
The respondent submitted that the opinions of the psychiatric register at St Vincents Hospital, Dr Davis and Dr Huber provided insufficient reasoning and would not have had access to the applicant’s previous documents and erred because they would have relied on information provided by the applicant. When asked to provide a specific example, the respondent submitted that the doctors would have accepted that the applicant sustained a spinal fracture.
A proper reading of the clinical notes of both Dr Davis and Dr Huber establishes the opposite of what the respondent submitted. The doctors were aware that the applicant did not sustain a spinal fracture.[82] Indeed, the clinical notes, summarised earlier, show that Dr Davis’ reasoning is detailed and superior to the short reasons provides by Dr Nagesh concerning his change of opinion.
[82] See respondent’s late Application, p 67.9.
Dr Huber examined the applicant in late July 2024, the following month after Dr Davis. The doctors’ opinions were produced as part of the records of St Vincent’s Hospital. It is logical and reasonable to conclude that Dr Huber had the benefit of the material that was before
Dr Davis in early June 2024 as the applicant was treated at the same hospital and the involuntary admissions were less than two months apart.The respondent’s attack on both Dr Huber and Dr Davis’ opinions was both legally and factually incorrect.
The respondent also submitted that any psychiatric diagnosis was inconsistent with completing a degree, setting up a business and commencing employment in a hotel. There was no medical opinion referred to base this submission, and I assume that the respondent is seeking that finding based on commonsense and logic.
I note that Dr Gorman opined that the applicant suffered from a somatic pain disorder and still concluded that the applicant could work full-time hours in sedentary employment. This conclusion is inconsistent with the respondent’s submission that a person working part-time and completing a degree cannot be suffering from a psychiatric condition.
I otherwise do not accept the submission as a matter of commonsense.
The respondent also submitted that Dr Gorman is not qualified to make a diagnosis of somatic form disorder, and his opinion cannot be accepted. The respondent’s submission is an inaccurate description of what Dr Gorman stated.
The full text of what Dr Gorman stated is set out earlier in these reasons.[83] Dr Gorman’s conclusion acknowledges the applicant’s widespread pain focus with no organic abnormalities. The doctor states that this is consistent with this diagnosis. That conclusion is consistent with the other evidence that there is no objective pathology to account for the widespread pain.
[83] See at [111] – [112] herein.
Dr Gorman stated that his opinion was consistent with that expressed by Dr Gronow. The respondent submitted that Dr Gronow’s opinion should be accepted but did not address
Dr Gorman’s comments on the similarity between Dr Gorman’s conclusion and that provided by Dr Gronow. The respondent, when referring to Dr Gronow’ opinion, otherwise did not acknowledge that doctor’s opinion concerning the psychological impact of the injury.Dr Gronow opined that the applicant presented with a “marked level of dysfunction and mood changes and psychological impact to the injury”.[84] Later in his report Dr Gronow opined that from a physical point of view the applicant was fit for work but that the “psychological component has stopped all progress”.[85]
[84] Reply, p 262.
[85] Reply, p 264.
The opinion of Dr Gronow, whilst supporting the respondent’s submissions on the absence of any ongoing physical injuries, are entirely consistent with the opinions expressed by
Dr Gorman, Dr Huber and Dr Davis that there is an ongoing psychiatric component to the applicant’s presentation.Dr Awit provided a comprehensive report dated 5 October 2024 diagnosing post-traumatic stress disorder and persistent depressive disorder.[86] Whilst this is a different diagnosis, the doctor noted the applicant’s chronic pain and an “additional diagnosis of chronic pain syndrome that [BOH] does not agree with”[87] and the applicant’s additional comments on the medical investigations which are “wrong”.
[86] Applicant’s late Application, p 155.
[87] Applicant’s late Application, p 159.
This opinion is consistent with the conclusion that the applicant has ongoing psychiatric condition, albeit under a different DSM-V diagnosis.
Dr Williams, the GP also supported a diagnosis of somatic form disorder in certificates of capacity in August/September 2024.[88] The clinical notes of the GP show that the applicant attended his GP on multiple occasions.[89]
[88] Application, p 261.
[89] Respondent’s late Application, pp 248-272.
The doctor’s opinion is examined considering the totality of the reports and is not limited to the diagnosis contained in the certificate of capacity.[90]
[90] See Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 (Hancock) at [86]-[87].
Dr Williams provided a detailed report dated 5 July 2024 addressed to the St Vincent Pain Clinic.[91] In that report Dr Williams stated:
“[BOH] has seen at least three different Pain Specialists and has been off work since the incident. He feels there is something seriously wrong with his body that hasn’t been identified properly despite scans not identifying a cause for his physical symptoms. He reports feelings of constriction/effect on breathing when he spends long periods of time with spine straight which leads to a pre-syncopal feeling.”
[91] Respondent’s late Application, pp 230-231.
The respondent submitted, correctly in my view, that the GP seems to have adopted the diagnosis of Dr Huber rather than provide her own diagnosis. Whilst that part of the opinion is unexplained, it is provided by a medical practitioner who has treated the applicant over a period. I give the opinion some weight although do not need to base my conclusion that the psychiatric condition is ongoing solely on that report. More importantly the GP’s opinion is consistent with recent specialist medical opinion from St Vincents Hospital and Dr Gorman’s detailed opinion.
Dr Williams’ observations are consistent with comments expressed by a number of doctors. It clearly shows Dr Williams is aware of the applicant’s condition and lends support to her psychiatric diagnosis, even if it is, as the respondent submitted, an adoption of a specialist opinion.
In reading the evidence following the hearing I noted that Dr Nagesh’s second report dated
5 December 23 [sic] references a Quantum corp report. I had assumed during the arbitration hearing that this report was the Quantum corp filed in the respondent’s application to admit late documents which is dated 5 December 2024.However, that Quantum corp report filed in the proceedings is dated 5 December 2024 and could not be the report that Dr Nagesh addressed in his report completed one year earlier.[92]
[92] Dr Gorman’s August 2024 report refers to the supplementary report of Dr Nagesh dated December 2024 [sic 2023?] – applicant’s late Application, p 147.
More importantly I do not accept what Dr Nagesh states when he refers to a report which “suggests the worker is working full time and he is running his own business”. The Quantum corp report in December 2024 does not show that the applicant is working full time. What that report shows is that the applicant has created a business and portrayed the business as ready and willing to undertaken extensive civil engineering projects.
Dr Nagesh has referred to the Quantum corp report as the basis for his change in opinion and provided an inaccurate or exaggerated summary of its contents.
During the hearing it was suggested to the respondent that Dr Nagesh’s change in opinion was weak because it relied on a report that did not show the applicant was working full-time. I maintain that view.
If Dr Nagesh has provided opinion based on a document that is not before the Commission, then this further undercuts the value of his opinion. If Dr Nagesh was referring to the Quantum corp report filed in evidence, then he has inaccurately quoted and summarised its contents.
I also note that Dr Nagesh has not expressed an opinion as to whether the applicant is suffering from an alternative psychiatric diagnosis such as a somatic form disorder or similar psychiatric condition. Accordingly, whilst the explanation for the change in opinion by
Dr Nagesh is poor, the opinion otherwise does not address the wide body of psychiatric and other medical opinion that supports the view that the applicant is suffering from a psychiatric diagnosis in the form of a somatic form disorder.Dr Nagesh’s opinion is both an outlier, and for the reasons expressed, deficient in the explanation for his changed opinion.
My conclusion that the applicant has on ongoing psychiatric condition is otherwise supported by the frequent admissions to hospital over recent times for his pain condition, albeit in the context of involuntary admission for the threats made against others.
The respondent referred to other causes for the applicant’s psychological condition referring to concerns about the Middle east conflict,[93] previous conflict in his homeland and during his school years.[94]
[93] Application, p 164 and p 256.
[94] Application, p 155.
Acknowledging that there is a contribution from other events to the ongoing psychological issues, the applicant is only required to establish in accordance with the general law of causation that the injury is a material contributing factor to the ongoing condition: Murphy v Allity Management Services Pty Ltd.[95]
[95] [2015] NSWWCCPD 49.
The various medical evidence referred to herein clearly shows that the applicant’s ongoing perception of his chronic pain is a material contributing factor to the ongoing psychological condition. Undoubtedly and self-evidently the applicant’s pain condition was caused by the work injury.
I note that the respondent did not deny that the applicant initially suffered a psychological injury, albeit by way of a different diagnosis. I have earlier explained that I do not need to make a specific psychiatric diagnosis and that I am only required to find whether the applicant has an ongoing psychological condition caused by the work injury.
Whether the effects of the injury have ceased
This heading is dependent on the findings made previously on the ongoing effects of the injuries.
For the reasons expressed I am not satisfied there is an ongoing physical basis for the applicant’s pain.
I do not accept, as the respondent submitted, that Dr Hale opined that the applicant had no ongoing psychological issues. The doctor stated that there is a chronic pain syndrome which is outside his area of expertise.
The findings on the nature of the psychological injury means that the applicant is successful on this issue. The work injury is a material contribution to the ongoing condition. This is because the medical reports show that the applicant is convinced that there is a physical basis for his symptoms caused by the work injury.
The findings on the nature of the ongoing nature of the applicant’s psychological condition means that a determination is required for any entitlements under ss 38 and 60 of the 1987 Act.
Findings on work capacity
“Suitable employment” is defined in s 32A of the 1987 Act as “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
(a)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.”
Schedule 3, cl 9 of the 1987 Act defines current work capacity and no current capacity as:
“An injured worker has no current work capacity if the worker has a present inability arising from an injury such as the workers not able to return to work either in the workers pre-injury employment or in suitable employment.
An injured work 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 workers pre-injury employment or able to return to suitable employment that the weekly amount that the worker has the capacity to earn in such employment is less than the weekly amount that the worker had the capacity to earn in such immediately before that injury.”
I am not satisfied that the applicant has “no current work capacity” at all times since
April 2024. The applicant has shown he can undertake various activities including:(a) completing a Bachelor of civil engineering (completed in 2023);
(b) setting up a business which involved various actions such as advertising the business, changing business name and creating the web-site (2023/2024);
(c) holding himself out as the integral component of that business and able to undertake various civil engineering projects;
(d) undertaking research work for the business;
(e) completing an RSA course (November 2024);
(f) working part-time at hotels (late 2024), and
(g) working at [redacted] (early 2025).
The applicant otherwise has a variety of transferable skills including his fluency in languages, his obvious intelligence, youth and computer skills. These skills are consistent with his ability to undertake office based sedentary duties.
The applicant otherwise admitted is his statement that he is “attempting to work from home”[96] and the “optimal kind of employment for me is remote work.”[97]
[96] Application, pp 80-81.
[97] Application, p 81.
I reject the respondent’s submission that the applicant showed capacity for work due to his ability to represent himself during the hearing. The applicant had grave difficulties in appreciating legal concepts and representing himself. Further, his statement evidence, whilst reasonably clear, lacked an appreciation of addressing relevant legal issues.
Whilst I accept that there is some incapacity flowing from the psychiatric condition, I do not accept that there is an underlying physical basis for the chronic pain symptoms. That conclusion is consistent with a variety of medical opinions including that expressed by Dr Pope, Dr Hale and Dr Gronow. It is otherwise consistent with the detailed clinical notes and opinion provided by Dr Davis and Dr Huber.
Further, I accept the opinion of Dr Gorman, whose opinion on the psychological condition accords with my findings, that despite the pain condition, the applicant is fit for office-based work.
I reject the brief and unexplained certificates of capacity that the applicant has no current work capacity. The certification is unexplained and inconsistent with the obvious fact that the applicant is undertaking some work.
The difficulty in this matter is determining the extent of the applicant’s “current work capacity”. This is partly because of the applicant’s adverse credit finding and the absence of evidence relating to this issue.
The respondent referred to evidence concerning the absence of any ongoing physical injury and an absence of psychiatric injury (Dr Nagesh) and/or Dr Gorman’s opinion that the applicant was fit for work. I have earlier expressed the view that I do not accept Dr Nagesh’s view.
I have earlier detailed the applicant’s various skills and experience. He stated that he is fit for work restricted to home. Somewhat inconsistently the applicant can regularly exercise at a gym every two or three days.[98]
[98] Application, p 253.
The applicant bears the onus of proof as to the extent of his current work capacity.
I earlier held that I accept that the applicant is not working in his business given the absence of income disclosed in the financial records.
The respondent submitted that they did not know what the position was with respect to business income. However, the respondent had use of extensive directions for the applicant and his company financial records, and, whilst identifying various expenses, including minute ones associated with expenses for computer related matters, could not identify any business income.
I accept that there is a chronic level of pain that which would restrict the applicant from working full-time in his previous employment and sedentary employment. The extent to which the applicant can work full hours is unclear. Any quantification of this extent of the hours is difficult to determine in light of the paucity of evidence on the issue coinciding with the findings on injury.
I generally accept Dr Gorman’s opinion although subject to and consistent with the nature of the applicant’s somatic pain condition, there would be some periods when the applicant is unfit event for sedentary work. Accordingly, I accept that the applicant can work in sedentary employment for a significant and majority part of full-time hours.
Section 38 entitlement
The applicant’s entitlement to weekly compensation is pursuant to s 38 of the 1987 Act. It is settled that there is power to make an award during that period.[99]
[99] See Fletcher International Exports Pty Ltd v Lee [2023] NSWPICPD 67 at [22] applying Roberts v University of Sydney [2021] NSWWCC 25 (Roberts).
Section 38(2)
I refer to above findings rejecting the allegation that the applicant has no current work capacity. For those reasons the applicant is unsuccessful pursuant to s 38(2) of the 1987 Act.
Section 38(3)
Section 38(3) is based on the applicant having “current work capacity”. Accordingly, the previous findings on “current work capacity” means that any entitlement to ongoing weekly compensation is dependent upon the applicant establishing the statutory pre-conditions in s 38(3).
The respondent accepted that the pre-condition in s 38(3)(a) had been satisfised.
Section 38(3)(b)
The evidence shows that the applicant worked more than 15 hours week in the first week of December and from early January if the applicant’s oral evidence about working with [redacted] is accepted.
This issue arises because the applicant only disclosed and provided documentary evidence of recent employment during the running of the hearing.
The respondent accepted that the applicant worked more than 15 hours per week in the first week of December which was established by payslips.
There was no documentary evidence of employment with [redacted] as this had recently commenced on or around 7 January 2025. The respondent undertook the not unreasonable position that, absent documentary evidence, the applicant’s assertion would not be accepted.
Whilst I stated earlier that I would not accept the applicant’s evidence unless there was some corroboration, in this respect only I am prepared to accept that there was recent employment (two shifts) with [redacted]. This evidence was volunteered, and my impression is that the applicant did not realise that he was assisting his case despite attempts to explain the pre-conditions in s 38.
The value of the employment exceeds the amount of the “receipt of current weekly earnings” as the applicant was employed by third parties and paid at least the additional wages.
Accordingly, the applicant has established the pre-condition in s 38(3)(b) for the first week of December and when employment commenced with [redacted] in early January 2025.
Section 38(3)(c)
I am not satisfied that the applicant has established, on the balance of probabilities, that he is “incapable of undertaking further additional employment or work that would increase the worker’s current weekly earnings”.
I made observations of the meaning of s 38(3)(c) of the 1987 Act in Roberts. These reasons are adopted as part of these reasons.
I rely on the findings of the applicant’s capacity, a rejection of his credit unless corroborated and the absence of evidence on this issue.
There is an absence of evidence consistent with my findings as to the extent of the applicant’s ability to undertake additional employment that would increase the worker’s current weekly earnings. The deficiency in this evidence was brought to the applicant’s attention.
The applicant has an ability to undertake sedentary work in his profession. The remuneration of a civil engineer will clearly exceed the remuneration of as a casual labourer at a hotel or performing unskilled work in a store.
The applicant has not established the pre-condition in s 38(3)(c) of the 1987 Act to be entitled to weekly compensation for the period claimed.
Section 60
I was provided with no assistance from the applicant on the quantification of the past claim for s 60 expenses which is in the order of $48,000.
The parties were advised that I intended to make a general order pursuant to s 60 of the 1987 Act for those injuries found to be ongoing from the date of the denial of liability. The respondent advised that the s 60 claim is from 10 April 2024.
The applicant is successful in establishing that he has an ongoing psychological/psychiatric condition since 10 April 2024 caused by the injury. He is entitled to a general order related to that condition. That order would obviously include pain medication as it is incidental to the nature of the applicant’s psychological condition.
There is a claim for future s 60 expenses. There were no proper submissions by the applicant on this claim. As the parties were advised, the claim for future expenses is determined as part of a general order. I note that the insurer should be reinstating future s 60 expenses with respect to the applicant’s somatic pain condition.
Based on the injury findings the applicant would have been unsuccessful in obtaining an order for future expenses concerning “an orthopaedic surgeon to remove the extruded discs at the back of the ribs”.
There is liberty to apply if the parties are in dispute as to any particular s 60 expense.
Pre-injury average weekly earnings
[BOH] pleaded pre-injury average weekly earnings (PIAWE) at $1,293 but increased to $2,050 from 4 October 2024 because he had to pay extra rent.
The respondent accepted that the PIAWE was $1,550 from 1 April 2024 to be indexed to $1,580 from 1 October 2024.
There is no statutory basis for an increase in PIAWE based on a need to pay extra rent. Otherwise, the respondent’s assessment of PIAWE is greater than that alleged by the applicant. If an assessment of the weekly compensation entitlement was required, then I would have accepted the respondent’s concession and adopted its PIAWE.
DE-IDENTIFICATION
The parties were advised that I intended to de-identify the published reasons to reduce the associated stress likely to occur. The parties were requested to advise whether they had any objection to this course. No objection was received opposing this course.
The reasons for de-identification are related to the applicant’s psychiatric condition which has resulted in involuntary hospitalisation and associated complications arising from this condition.
These reasons contain sensitive personal information. Having weighed the matters referred to in rule 132(4) of the Personal Injury Commission Rules, 2021 including the safety, health and wellbeing of the applicant, and whether the public interest in giving the direction significantly outweighs the public interest in open justice, I am satisfied that the decision should be de-identified before it is published.
Pursuant to Rule 132 of the Rules, the decision be de-identified prior to publication to include, at least, pseudonyms for the applicant and the associated companies.
FINDINGS AND ORDERS
The findings and orders are set out in the Certificate of Determination.
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