Chand v Bunnings Group Limited - [2023] NSWPIC 476

CERTIFICATE OF DETERMINATION OF MEMBER

CITATION:

Chand v Bunnings Group Limited [2023] NSWPIC 476

APPLICANT:

Krishant Chand

RESPONDENT:

Bunnings Group Limited

MEMBER:

Gaius Whiffin

DATE OF DECISION:

15 September 2023

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987; claim for injuries to back and right leg; claim for weekly benefits compensation and proposed future treatment expenses pursuant to section 60; consideration of applicant’s and witnesses’ statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the applicant sustained an injury in accordance with section 4 on 8 March 2021; consideration of whether if so, the surgery proposed for the applicant by Dr New (a bilateral L4/5 and L5/S1 decompression, laminotomy and neurolysis and right L5/S1 disc excision) is reasonably necessary medical treatment as a result of the injury (if found) on 8 March 2021; McCarthy v Patrick Stevedores No 1 Pty Limited, Maitland City Council v McInnes, Jones v Dunkel, Zickar v MGH Plastic Industries Pty Limited, Kennedy Cleaning Services Pty Limited v Petkoska, Military Rehabilitation and Compensation Commission v May, Castro v State Transit Authority (NSW), Galluzzo v Commonwealth Bank of Australia, Dayton v Coles Supermarkets Pty Ltd, Rose v Health Commission (NSW), Diab v NRMA Limited, Murphy v Allity Management Services Pty Limited considered; Held – the applicant sustained a personal injury to his back and right leg on 8 March 2021, arising out of or in the course of his employment with the respondent, in accordance with section 4; his employment with the respondent was a substantial contributing factor to the injury in accordance with section 9A; the surgery proposed for the applicant by Dr New (a bilateral L4/5 and L5/S1 decompression, laminotomy and neurolysis and right L5/S1 disc excision) is reasonably necessary medical treatment for him as a result of his injury on 8 March 2021; awards for the applicant pursuant to section 37 from 22 February 2023, and pursuant to section 60 of the Act; specific award that the respondent pay the costs of and incidental to the surgery proposed for the applicant by Dr New.

DETERMINATIONS MADE:

Member:

Gaius Whiffin

The Commission determines:

1. The applicant sustained a personal injury to his back and right leg on 8 March 2021, arising out of or in the course of his employment with the respondent, in accordance with s 4 of the Workers Compensation Act 1987 (the 1987 Act). His employment with the respondent was a substantial contributing factor to the injury in accordance with s 9A of the 1987 Act.

2. The surgery proposed for the applicant by Dr New (a bilateral L4/5 and L5/S1 decompression, laminotomy and neurolysis and right L5/S1 disc excision) is reasonably necessary medical treatment for him as a result of his injury on 8 March 2021.

The Commission orders:

1. There will be an award in favour of the applicant pursuant to s 37 of the 1987 Act in the amount of $815.07 per week from 22 February 2023 to date and on a continuing basis.

2. There will be an award that the respondent pay the applicant’s reasonably necessary expenses pursuant to s 60 of the 1987 Act.

3. There will also be a specific award that, pursuant to s 60 of the 1987 Act, the respondent pay the costs of and incidental to the surgery proposed for the applicant by Dr New (a bilateral L4/5 and L5/S1 decompression, laminotomy and neurolysis and right L5/S1 disc excision).

STATEMENT OF REASONS

BACKGROUND

Krishant Chand (the applicant) is 39-years-old. He was employed by Bunnings Group Limited (the respondent) as a Short Supply Allowance (SSA) team member from 15 July 2017 until he last worked in that capacity around 19 March 2021. He has not worked since that date.
He alleges that he injured his back and right leg on 8 March 2021 during the course of his employment with the respondent, while lifting cans of paint.
The respondent initially accepted liability for this injury, and made various workers compensation payments to him in this regard until 21 February 2023.
The applicant’s treating surgeon, Dr New, has recommended to him that he undergo surgery to treat his injury. The doctor has recommended that he undergo a bilateral L4/5 and L5/S1 decompression, laminotomy and neurolysis and right L5/S1 disc excision. The doctor sought that the respondent approve the costs involved in this surgery, in accordance with s 60 of the 1987 Act.
However, the respondent issued a notice denying liability for the costs involved in the surgery, pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), dated 22 July 2022. It has also since issued a further notice pursuant to s 78 of the 1998 Act dated 14 December 2022, declining all further liability for the applicant’s injury. As a result, the respondent ceased paying the applicant weekly benefits compensation on 21 February 2023.
By way of an Application to Resolve a Dispute (ARD) filed with the Personal Injury Commission (the Commission), the applicant requests an order that the respondent pay for the costs of and incidental to the surgery proposed by Dr New in accordance with s 60 of the 1987 Act, as well as an order that the respondent pay him ongoing weekly benefits compensation from 22 February 2023.

ISSUES FOR DETERMINATION

The parties agree that the following issues are in dispute:
(a) did the applicant sustain an injury in accordance with s 4 of the 1987 Act on
8 March 2021, and
(b) if so, is the surgery proposed for the applicant by Dr New (a bilateral L4/5 and L5/S1 decompression, laminotomy and neurolysis and right L5/S1 disc excision) reasonably necessary medical treatment as a result of the injury (if found) on
8 March 2021.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
A conciliation conference was held in the dispute on 31 July 2023. On that occasion, Mr Ross Hanrahan of counsel appeared for the applicant; and Mr Lachlan Robison of counsel appeared for the respondent, instructed by Ms Walsh. The applicant was present as part of a MS Teams link, as was a representative from the respondent, Ms Sashko.
As a resolution of the dispute was not possible during the conciliation conference, the dispute proceeded to an arbitration hearing before me.
The issues to be determined (see paragraph 7 above) were agreed upon between the parties, and the respondent conceded that if I was to find in favour of the applicant regarding the first issue:
(a) the applicant would be entitled to an ongoing award pursuant to s 37 of the 1987 Act from 22 February 2023, in the weekly amount of $815.07 (being 80% of the applicant’s pre-injury average weekly earnings amount of $1018.84, which had been agreed between the parties), and
(b) the applicant would be entitled to a ‘general’ order that the respondent meet his reasonably necessary medical expenses in accordance with s 60 of the 1987 Act.
I then dealt with the following preliminary issues:
(a) I reconsidered a decision that I had earlier made (at a preliminary conference in the dispute on 5 June 2023) to withdraw from the respondent’s Reply (Reply) the reports of Associate Professor Miniter dated 21 April 2022 and 13 July 2022 on the basis that the respondent would otherwise be in contravention of cl 44 of the Workers Compensation Regulation 2016 - instead, I determined to admit the reports into evidence for the limited purpose of my consideration of the history provided by the applicant in them - in this regard, I consider that the reports’ admission for this sole purpose (without any consideration of the doctors’ opinions being undertaken) is consistent with the authority of McCarthy v Patrick Stevedores No 1 Pty Limited [2010] NSWWCCPD 96, and
(b) I allowed the respondent leave to undertake limited cross-examination of the applicant - the applicant had no objection to this course, and I considered that oral evidence from the applicant was highly likely to assist me in my consideration of the issues in dispute, and particularly with respect to the applicant’s complaints of back and right leg pain prior to 8 March 2021.

EVIDENCE

Documentary evidence

The following documents were therefore in evidence before the Commission and considered in making this determination:
(a)    the ARD and attached documents;
(b)    the Reply and attached documents;
(c)    the applicant’s Application to Admit Late Documents (applicant’s AALD) lodged
5 July 2023 and attached documents, and
(d)    the respondent’s Application to Admit Late Documents (respondent’s AALD) lodged 19 July 2023 and attached documents.

Oral evidence

As noted, the applicant provided some oral evidence at the arbitration hearing – it is discussed at paragraphs 81-88 below.

Applicant’s evidence

The applicant’s statement dated 10 August 2022 is found at page 1 of the ARD.
He says that he commenced working for the respondent on 15 July 2017, and that his role involved travelling between its stores checking stock deliveries. The role also involved assisting in the unloading of pallets of stock.
He says that on 8 March 2021, he was at the respondent’s Narellan store and involved in unloading a pallet of paint cans with a fellow employee of the respondent’s named Saini. The cans at the top of the pallet were smaller, and they increased in weight and size as the pallet was unloaded. The cans at the bottom of the pallet were 10 litre paint cans. The applicant would have to lift each can, scan it, and then move it onto another relevant pallet. After about half an hour of unloading the pallet, the applicant noticed pain in his lower back, radiating into his right leg.
The applicant left work in order to consult with his normal treating (for around eight years) general practitioner, Dr Ali. He was prescribed medication and told to take a few days off work.
He took two days off work, then worked two days, and then worked the entire following week. He “was in so much pain by the end of this week” that he ceased working and has not worked since.
He says that he reported his injury to his team leader (Saini) on 8 March 2021, and he also reported the injury to his boss (Jana da Silva) about a week and a half later. His compensation claim in relation to the injury was initially accepted by the respondent.
Dr Ali referred him to Dr New, who referred him for radiological investigations, nerve conduction studies, and injections on 13 May 2021. He also underwent physiotherapy and remedial massage treatment. Dr New then on 31 May 2021 recommended lumbar spine surgery, which was eventually approved by the respondent.
The surgery was to take place on 28 January 2022, but:
“On 28 January 2022 I was on the operating table and understand was given the anaesthetic, however there was a problem that my lungs partially collapsed. Dr New and the anaesthetist decided that the surgery could not proceed”.
The applicant was referred to a respiratory specialist and various relevant tests were carried out. The applicant says that he had difficulties breathing for about a month, but otherwise no ongoing breathing issues. Dr New rescheduled his lumbar spine surgery for 15 July 2022, however the respondent subsequently refused to approve that surgery, and it has not yet taken place.
The applicant continues to consult with Drs Ali and New, and continues to take medication including Lyrica, Panadol Osteo, Palexia, Somac, and Indocid. He lists his current disabilities as including pain and restriction of movement in his lower back; pain and numbness radiating into his right leg; difficulties standing, walking or sitting for long periods; the need to use a walking stick; bending, twisting and lifting restrictions; sleep disturbance; stress and anxiety; as well as a reduced ability to perform domestic duties. He says:
“I feel that my condition has been deteriorating, particularly over the last 6 months and
I am now finding it increasingly difficult to perform any activities of daily living and
have been heavily reliant upon my wife for my ongoing care”.
He also says:
“I have always been in good health and have not had any previous back complaints
that I can recall”.
The applicant’s signed (on 26 April 2021) injury claim form is found at page 4 of the ARD. Upon the form:
(a)    the applicant advises that he suffered “lumber [sic] discogenic pain and severe right leg pains due to disc impingement” following “checking paints on pallet and lifting and scanning the barcode pain started when lifting paint and we were up to the 3rd pallet or the 4th it was more than 8 pallets all up”;
(b)    the applicant advises that he reported his injury to Jana “the same day before going to doctor when I felt the pain”, and
(c)    the applicant denies that he had “previously had another injury/condition or personal injury claim that relates to this injury/condition”.
The applicant relies on medical evidence from Drs Ali and New, as well as from a qualified neurosurgeon, Dr Abraszko.
Dr Ali’s report dated 5 October 2021 is found at page 64 of the ARD. It requests the respondent to provide the applicant with domestic assistance and travelling assistance as the applicant “has severe functional impairment due to his work related lower back injury”.
Dr Ali provides a further report to the respondent dated 2 February 2023 (at page 65 of the ARD), in which he advises:
(a)    the applicant’s current diagnosis “is lower lumbar disc protrusion causing discogenic pains including (R) leg severe radicular pains” - there was also sensory and motor impairment in the right leg;
(b)    the applicant was totally unfit to perform any employment - and any comments about his work capacity could not be made until he had undergone the surgery recommend for him by Dr New;
(c)    the applicant was being prescribed Palexia, Tramal, Amitriptyline, Avanza, and Lyrica, and
(d)    the applicant continued to suffer from constant pain and required the assistance of a walking stick – two neurosurgeons had advised that lower lumbar surgery was “definitely required”.
There is also a report from Dr Ali dated 20 February 2023 to the applicant’s solicitors, specifically dealing with complaints of back and right leg pain made by the applicant to him prior to 8 March 2021. The report is found at page 100 of the ARD within the doctor’s clinical notes.
The doctor explains that when the applicant consulted with him on 14 January 2021, the applicant would have been suffering from a muscular strain from driving his low set car, which “indicated an issue with car seating positioning”, leading to the doctor’s advice to the applicant to use cushions in his car.
The doctor concedes that the applicant “did get intermittent muscular strains of lower back and (R) leg – but was less [emphasis in original]”, which he recorded when the applicant consulted with him on 17 March 2021 (after the applicant’s work injury). The doctor opines:
“As you will note from perusal of all my records, that prior to his work related injury of 08/03/2021, I didn’t request any radiological investigation since I didn’t deem it to be necessary, since the pains didn’t escalate and Mr Chand did not represent. This is normal course of planning in general practice [emphasis in original]…Furthermore, from my entry (14/01/2021) he was managed by using alternative vehicle use, in addition to simple analgesia i.e…Panadol Osteo [emphasis in original]…Therefore, in my opinion, Mr Krishant Chand’s current condition is from work related injury on 8 march 2021 and not from a pre-existing lower back condition”.
The ARD also contains various certificates of capacity from Dr Ali (between pages 102 and 134). The certificates cover the period between 31 May 2021 and 15 May 2023, although there are gaps in this period not specifically covered by certificates. The certificates consistently certify the applicant as having no work capacity, and they are also consistent in answering the following questions:
(a) “diagnosis of work related injury/disease or motor accident related injury(ies)” – “Lumbar discogenic pains & severe (R) leg radicular pains due to disc impingement – no improvement”, and
(b) “how is the injury related to work or the motor vehicle accident?” – “Repeated lifting cans of paint – from 1 L up to 15 L – from one pallet, scanning and placing onto another pallet. He was only able to complete about 4 hours of the scheduled 8 hours planned task”.
Dr New’s initial report (addressed to Dr Ali) is dated 26 April 2021 and found at page 40 of the ARD.
The doctor obtained a history of the applicant on 8 March 2021 “moving heavy paint when he developed debilitating back pain”, and he also obtained “no history of serious back pain or radiculopathy” prior to 8 March 2021. On clinical examination, the doctor found “markedly reduced lumbar spinal movement and disruption of his normal lumbar pelvic rhythm”, as well as “a very protected sitting and standing attitude”. The doctor ordered MRI scanning and nerve conduction studies.
There are further reports in the ARD from Dr New to Dr Ali, which include as follows:
(a)    6 May 2021 (page 42) - the doctor records that the applicant’s “right leg is getting worse and that is certainly consistent with the right L5/S1 disc prolapse” - the doctor arranges injections for the applicant at L4/5 and L5/S1, and he recommends that the applicant lose weight and continue with his physiotherapy, hydrotherapy, and Pilates;
(b)    25 May 2021 (page 43) - the doctor finds “active bilateral L4 to S1 radiculopathy with the right side being worse than the left”;
(c)    31 May 2021 (page 46) - the doctor describes the applicant’s presentation as “very severe” and recommends “a bilateral laminotomy at L4/5 and L5/S1, as well as a right sided L5/S1 disc excision”, and
(d)    30 June 2021 (page 50) - the doctor finds “quite debilitating pain” as well as “an active bilateral L4-S1 radiculopathy”.
There are also reports in the ARD from Dr New to the respondent, which include as follows:
(a)    31 May 2021 (page 44) – the doctor requests approval to perform surgery upon the applicant, describing the applicant as in very severe pain with his radiculopathy and as struggling to walk and sit - the doctor says that the applicant “requires reasonable and necessary surgery in the form of a bilateral L4/5 and L5/S1 decompression, laminotomy and neurolysis and right L5/S1 disc excision” – the doctor outlines his fees in relation to the surgery as amounting to $10,566, and he also notes that the surgery would involve an assistant, initial hospitalisation for 3 to 4 days, and subsequent rehabilitation hospitalisation for approximately one week;
(b)    30 June 2021 (page 47) - the doctor confirms his opinion that the surgery recommended by him is reasonable and necessary, and he explains the nature and risks of that surgery in more detail – he also opines that “the substantial contributing factor by history” to the applicant’s presentation and need for surgery was his 8 March 2021 injury - he notes in this regard that the applicant had stated to him that “he had no history of back pain or sciatica” before 8 March 2021 and had not injured himself gardening on 5 March 2021 - conversely the applicant now had “severe” sciatica, and
(c)    31 January 2023 (page 59) - the doctor opines that the applicant “is unfit to do the type of work for which he is reasonably experienced and trained”, and that he will require a functional and vocational assessment once he has had the recommended surgery and subsequent rehabilitation.

Dr New has also provided reports to the applicant’s solicitors.
In his 1 December 2022 report (at page 54 of the ARD), he advises that he reviewed the applicant on 28 November 2022. He provides some not particularly helpful comments regarding the opinions of Dr Miniter (which are not in evidence before me), and he also advises as to his confusion and frustration with the respondent initially approving the surgery recommended for the applicant by him, but later withdrawing that approval.
The doctor confirms that the surgery proposed to be undertaken on 28 January 2022 did not proceed because of the applicant’s inability to safely ventilate. He also confirms that he is now satisfied that the applicant has recovered from his respiratory issues in order for the surgery to be attempted again. He therefore continues to recommend that the applicant undergo the surgery, opining:
“The surgery that I am going to do is exactly the same as it previously was with an L4-S1 decompression laminotomy and neurolysis…The surgery is still recommended as he has the symptoms with radiculopathy in his lower limb which has been confirmed on history, physical examination, electrophysiological investigation and MRI…The only alternative to not proceeding with the proposed surgery is to not provide him with
reasonable and necessary treatment, which would be prejudicial to the patient”.
In a further report to the applicant’s solicitors dated 31 January 2023 (at page 57 of the ARD), Dr New advises that the main reason for the surgery that he has recommended for the applicant relates to the applicant’s quite significant leg pain, and he also advises that following such surgery “85% of people have a good or excellent result with regard to leg pain”.
In relation to the history provided to him by the applicant, he reviews the applicant on
23 January 2023, and notes:
“The patient states that he had no sciatica prior to the index injury and he states again that there was no back pain…Even if that was true, the patient was working without restriction on a full time basis”.
Finally, Dr New provides a report to the applicant’s solicitors dated 24 February 2023 (at page 60 of the ARD), in which he again discusses the history provided to him by the applicant (after consulting with the applicant again on 20 February 2023) as to complaints of back pain prior to 8 March 2021. The doctor now advises:
“Once again, I have gone over the history with the patient. He states that he had no radicular pain although states that he had discomfort in his right leg whilst driving in the car. His GP did not request any radiographic investigation and the history as given to me by the patient is based on the date of injury that has been well recorded…Patients can have discomfort in many parts of their body at any given time, noting that the patient is 38 years old. I would confirm that the presentation of the patient appears to be quite consistent with the history that he has given me…You have asked my opinion whether the need for surgery is a result of a pre-existing condition. That is certainly not the case. His presentation with debilitating back pain and genuine radiculopathy has
occurred as a result of the injury as per his history. I don't think I can be any clearer on that”.
The applicant also relies upon the opinions of a qualified neurosurgeon, Dr Abraszko. The doctor has provided two reports dated 17 August 2022 and 7 February 2023. In a letter dated 22 June 2023 (at page 1 of the applicant’s AALD), the doctor advises that she had to amend those reports due to typographical errors. I will therefore review the amended reports that are included in the applicant’s AALD.
The amended report dated 17 August 2022 is found at page 6 of the applicant’s AALD.
The doctor advises that the applicant denied any injuries to his lower back prior to 8 March 2021. She then takes a history from the applicant of how he was injured on that date, what his symptoms have been since then, and what treatment he has had in this regard. The history taken is entirely consistent with the applicant’s 10 August 2022 statement.
The doctor notes that the applicant had difficulty with walking and continued to have severe back pain on a daily basis. His wife had stopped working in order to care for him.
The doctor reviews various radiological investigations and conducts the following neurological examination:
“He is significantly overweight.
He walks with a stick limping on the right leg.
He is tender over the lumbar spine. He is not tender over the sacroiliac joints.
The Lasegue’s sign on the right side is at 40 degrees. on the left at 70 degrees.
Power is decreased in the dorsi and plantarflexion 4/5 on the right foot.
There is decreased right ankle jerk. Knee jerks are weak, but present.
Sensation is decreased to pinprick and light touch, in the lateral aspect of his right thigh, lateral aspect of the right leg down to the right foot in L5-S I nerve roots distribution.”
In relation to diagnosis, the doctor opines:
“Mr Chand provided consistent history with radiological findings and neurological
examinations.
As a result of his injury at work, he injured his L5-S1 disc and L3-L4 disc.
He suffers from disc protrusion and right L5-S1 radiculopathy.
His work was significant contributing factor to his injury and to the need of treatment.
The injury to the lumbar spine was caused by the incident at work, which occurred on 8
March 2021.
There is no pre-existing degenerative condition, which contributed to his problem.
There is no significant arthritis on the bone scan to suggest the pre-existing degenerative condition.
He suffers from L5-S1 disc protrusion and lateral recess and foraminal stenosis, which is a direct result of his work related incident.”
The doctor finally notes that the applicant has undergone conservative treatment, pain management, and steroid injections with no improvement to his pain levels. Without surgery, he “will not be able to function in the society and he will never return to any gainful employment”.
The doctor opines that the decompression surgery recommended by Dr New may not improve the applicant’s back pain, and he may therefore require a lumbar fusion in the foreseeable future. The surgery should however improve his right leg pain by 80%, and may improve his back pain by 50%. The surgery “is necessary as a result of his work related injury on 8 March 2021”.
Dr Abraszko’s amended report dated 7 February 2023 is found at page 2 of the applicant’s AALD. The report followed a request to the doctor from the applicant’s solicitors for her to address further issues upon a background that the applicant had back pain radiating into his right leg prior to 8 March 2021. She opines:
“The significance of the history of back pain radiating to Mr Chand's right leg, shortly prior the incident at work, indicates that the L5/S1 disc protrusion compressing slightly S1 nerve root was present prior the injury on 8 March 2021…The incident at work - mechanism of bending and lifting with twisting of his lumbar spine - caused further rupture of the disc annulus and disc protrusion. Therefore his work was a significant contributing factor to the aggravation of previously mild condition - L5/S1 disc protrusion; The aggravation then became permanent.”
The doctor then opines that the applicant’s need for surgery “80% arises from the incident at work on 8 March 2021 and in 20% from the pre existing condition L5/S1 disc bulge”. She does not believe that the surgery would be needed “at this point of his life” if it had not been for the work injury. She specifically refers to the following as bases for her opinion:
(a)    even though there was a history of back pain radiating to his right leg prior to
8 March 2021, the applicant was able to perform employment requiring heavy lifting with no problems;
(b)    the applicant had a bone scan on 24 April 2021 (which does not appear to be in evidence before me) clearly indicating that there were no pre-existing degenerative changes contributing to the applicant’s back pain, and
(c)    the applicant’s MRI scan findings (it seems that the doctor is referring to the report dated 21 April 2021 at page 37 of the ARD, and the report dated
28 June 2022 at page 144 of the Reply) indicate “traumatic pathology rather than long term degenerative changes”.
The remainder of the evidence relied upon by the applicant consists of investigative reports and clinical notes. I have considered this evidence, but will only detail it further if specifically addressed to aspects of it during the parties’ submissions.

Respondent’s evidence

The respondent relies upon a statement from Jana da Silva signed 4 October 2022 (at page 44 of the Reply). She is the respondent’s SSA state leader, and she confirms that the applicant was a SSA team member, supervised by Saini Singh as at 8 March 2021.
She also confirms that the applicant’s role was a “manual handling role” and that he was required to lift items weighing up to 15 kg. He had been taught correct lifting techniques and pallet jacks were available for him to utilise.
She says that on 8 March 2021 she received a text message from the applicant at 9:50 am stating:
“Hi Jana I am going home sick I have pain in my leg I need to see doctor it was painful this morning I will let you know what the doctor says thanks Kris”.
She then called Saini Singh who told her that the applicant had told him that he had injured himself over the previous weekend “doing his lawns”. She called the applicant later in the day and advises that “he said he had woken up with a tight leg, this happened regularly and usually if he stretches it goes away”. She then received a further text message from the applicant at 7:09 pm, stating:
“Hi Jana I will not be coming to work tomorrow because I have pulled a muscle in my leg I will let Saini know as well I went to physio today and I did go to my doctor today after work thanks Kris”.
On 9 March 2021, she spoke to the applicant again, who advised that he was “feeling a lot better”. He returned to work on 10 March 2021 and worked until 19 March 2021.
She then received a text message from the applicant on 22 March 2021 advising that due to the pain in his leg, he would not be coming into work. She received a further text message from the applicant on 1 April 2021 advising that he had a sore back and would not be returning to work until 6 April 2021. She says that prior to this particular text message, the applicant had not made any complaints to her about back pain.
She was then advised by Saini Singh that he had had a discussion with the applicant in the week prior to 12 April 2021 in which the applicant advised his intention to make a workers compensation claim. She advises:
“Saini had told the Claimant that he should do what he needs to do but it was not a workers compensation injury. Saini advised me that the Claimant had acknowledged that he knew that”.
She says that when the applicant eventually made his workers compensation claim, it came after he had exhausted all his sick and annual leave entitlements.
She finally says:
“I am concerned there is an integrity issue relating to this claim in that the Claimant did mention to two people that he had hurt himself over the weekend…The Claimant made his initial injury report to Saini when he said he was going home, he said the injury related to his leg. The Claimant and Saini had a relationship prior to working together for the Company. I feel that Saini has high integrity, he won’t put himself in a position where he has to lie. He came to me and said it was not work related, that is why I put int [sic] in writing”.
The respondent’s AALD (at page 6) contains an email from Jana da Silva dated 1
2 April 2021 (which she signed on 11 July 2023 in order to authenticate it). It is apparent that she prepared her 4 October 2022 statement in accordance with the chronological information contained in the email. The email also contains screenshots of the text messages from the applicant to her that are referred to in her statement.
The respondent does not rely upon any signed statement from Saini Singh. In fact, the only evidence relied upon in this regard is an email from him to Jana da Silva dated 12 April 2021 (at page 40 of the Reply), that neither he nor Jana da Silva has signed or otherwise authenticated. The email reads:
“On Monday date 08/03 we we're working at Narellan store Kris started 0700 am and I started 0730 am when I came in GI we started checking Dulux paints I was scanning and Kris was putting on pallet after about 15 to 20 minutes later he told me he is having very bad pain in his back I asked him is it to with checking paints he told not it happened on weekend. I told him to stop what he was doing and he told me he is going to his tea break and going to have some pain killer I told him not to rush back and take your time in lunch room. He came back to GI after after half an hour told me pain is very bad and he is going home I told that's fine he told me he is going to ring Jana let her know. After 10 minutes later I texted Jana to tell her Kris is gone home sick.”
As allowed (see paragraph 12(a) above) the respondent relies upon the histories taken from the applicant by Associate Professor Miniter in his reports dated 21 April 2022 (at page 16 of the Reply) and 13 July 2022 (at page 24 of the Reply). Unfortunately, the doctor’s consideration of the histories provided to him by the applicant largely involved criticism of those histories, which is not evidence for me to consider. However, it is clear from the reports that:
(a)    the doctor records that the applicant denied that he had significant “issues” in relation to his back prior to 8 March 2021;
(b)    the doctor records that the applicant was lifting 1 kg paint tins on 8 March 2021, and
(c)    the doctor records that the applicant advised him “that there must have been a mistake” in relation to his general practitioner’s notes regarding complaints of back pain prior to 8 March 2021.
The respondent mainly relies upon medical evidence from Dr Davies, who has provided three reports.
The doctor’s first report is dated 31 October 2022 and found at page 27 of the Reply.
The doctor takes a history that the applicant was lifting cans of paint (ranging from 1 litre to 10 litre quantities) when he felt pain in his lower back and down his right leg. He takes a history that remedial massage, physiotherapy, and medications provided the applicant with no pain relief, and he also takes a history of the applicant’s anaesthetic issues when back surgery was attempted in January 2022. In relation to the applicant’s past history, the doctor advises that the applicant denied “any previous back or leg problems”, but the doctor also notes the complaints of right leg pain that the applicant made to Dr Ali on 14 January 2021, as well as on 17 March 2021 “in which he refers to right leg pain for four months and also in December 2020, as well as back pain at the same time”. The doctor further notes statement evidence provided by Jana da Silva suggesting that the applicant had injured himself mowing lawns rather than lifting paint tins on 8 March 2021.
The doctor reviews investigations and conducts an examination of the applicant revealing:
“The lumbar lordosis is preserved. He reported tenderness in the lower back. He
demonstrated minimal back movement in any direction. I was unable to attempt straight
leg raising, as any attempt to lift his leg off the couch while he was lying on the couch
was said to cause severe pain. There is non-organic weakness in the right lower limb that is inconsistent with his ability to walk, notwithstanding the fact that he uses a walking stick. I could not obtain knee or ankle reflexes in either lower limb. It was not possible to test the medial hamstring reflexes because I could not position his legs appropriately to do so. He reported global impairment of sharp sensation below the right knee.”
The doctor diagnoses:
“Mr Chand has a disc protrusion at L5/S1 causing nerve root impingement. He has
suffered an aggravation of pre-existing degenerative change in the lumbar spine.”
When asked for a diagnosis of the applicant’s condition prior to 8 March 2021, the doctor opines:
“He had lumbar spondylosis and may also have had disc bulging and nerve root
impingement, based on the general practitioner’s notes.”
In relation to the causation of the applicant’s current condition, the doctor advises that as the applicant had back and leg pain prior to the alleged work injury, his “current condition relates to a pre-existing condition and not to his employment”, but he provides no other explanation for this opinion. He then somewhat inconsistently (see paragraph 71 above) opines:
“I do not believe he has suffered an aggravation, acceleration, exacerbation or
deterioration of a pre-existing disease in the course of his employment. Information
in the documents indicates that he already had back and leg pain prior to the alleged
injury and that this developed outside his employment.”
In relation to the surgery proposed by Dr New, the doctor agrees that it is appropriate treatment “for his condition but the need for it has not arisen as a consequence of his employment”. The doctor notes that the surgery would be primarily performed to relieve leg pain and that patients often have some degree of ongoing back pain even following successful surgery. The doctor does not recommend any alternative treatments for the applicant’s condition.
In relation to capacity, the doctor opines that the applicant is not fit to undertake any employment at present.
Dr Davies’ second report is dated 25 January 2023 and found at page 38 of the Reply. In the report, the doctor answers a number of questions posed to him by the respondent’s solicitors, after reviewing Dr New’s 1 December 2022 report. He confirms his agreement “that the surgery Dr New has recommended is appropriate surgery for Mr Chand’s problem”, and he also confirms in relation to causation:
“I do not change my opinion in relation to diagnosis and causation. I remain of the opinion that Mr Chand’s condition relates to a pre-existing condition and was not caused by his employment. I refer you to my report of 31 October 2022 and the comments in there regarding findings in the general practitioner’s file of back pain and leg pain prior to the alleged work injury. I do not know whether Dr New has been provided with all the information from the general practitioner. Dr New makes no comment about any pre-existing problems.”
Dr Davies’ third report is dated 6 June 2023 and found at page 1 of the respondent’s AALD. In the report, the doctor answers a number of questions posed to him by the respondent’s solicitors, after reviewing further evidence from Drs Ali, New and Abraszko.
Unfortunately, the reports that he reviewed from Dr Abraszko had a typographical error (since fixed by Dr Abraszko - see paragraph 44 above), which led Dr Davies to understand that the MRI findings of 28 June 2022 that she was referring to, were MRI findings from
28 June 2020 (prior to the applicant’s alleged injury on 8 March 2021). As a result, and as most of the criticisms levelled by Dr Davies in his report related to the failure of
Drs Ali, New and Abraszko to properly consider radiological findings from 28 June 2020, I do not find those criticisms to be helpful, being based upon incorrect information as to when the radiological investigations took place.
Otherwise, in this report, Dr Davies does not really add to the opinion evidence provided in his other two reports. He also refuses to provide an opinion as to whether the applicant’s respiratory issues had now been sufficiently addressed in order for it to be safe for the applicant to attempt to undergo the surgery recommended by Dr New again.
The remainder of the medical evidence relied upon by the respondent consists of:
(a)    reports in relation to the applicant’s respiratory condition – in his 1 April 2022 report (at page 64 of the Reply), Dr Wu (the applicant’s treating respiratory specialist) refers to the applicant’s respiratory investigations following the surgery that had to be cancelled on 28 January 2022, and finds no significant underlying pulmonary disease, but suggests weight loss to “improve the success of perioperative ventilation”;
(b)    a physiotherapy report dated 23 March 2021 (at page 10 of the respondent’s AALD) which refers to the applicant as complaining of “deteriorating right sciatic pain”, and which found restriction of trunk flexion due to back and right leg pain, a mild lumbosacral muscle spasm, and no neurological signs;
(c)    reports from the applicant’s cardiologist (Dr Aggarwala) - in the doctor’s
17 November 2021 report (at page 13 of the respondent’s AALD), the doctor advises:
“Overall, Mr Chand does not have any objective evidence of coronary ischaemia. I therefore feel the risk of him running into cardiac problems during his back surgery is not high. Significant anaemia will need to be avoided. I have obviously asked him to stay away from smoking and to lose weight”,
(d)    further treating reports from Dr New, treating records from Dr Ali, and radiological tests - I have considered this evidence, but do not believe that it adds to the evidence already reviewed by me – I will only detail it further therefore if specifically directed to aspects of it during the parties’ submissions, and
(e)    some clinical records of the applicant’s from Westmead Private Hospital regarding his surgery that had to be cancelled on 28 January 2022 - I have considered these records but will only refer to them further if specifically directed to aspects of them during the parties’ submissions.

Finally, the respondent cross-examined the applicant at the conciliation/arbitration on
31 July 2023.
In that oral evidence, the applicant was first taken to his statement evidence (see paragraph 25 above) that prior to 8 March 2021, he had not had any back complaints that he could recall. He said he could not recall the complaints that he made to his general practitioner earlier in 2021 as his pain then was “not something to be concerned about” and it went away. He did not remember every consultation he had with his general practitioner. He did not lie to his general practitioner. Any back pain that he had earlier in 2021 was “slight” and “not like the condition now”.
The applicant was asked if he had right leg pain in January 2021, and he advised that it was from getting into his car. His general practitioner recommended the use of a cushion or that he drive his wife’s car, and the pain went away.
The applicant was then taken to the history which he provided to Dr Abraszko (see paragraph 46 above). He conceded that he made a “false comment” to the doctor that he had not suffered back pain prior to 8 March 2021, but he maintained that he did not remember the pain, and that pain was neither “consuming” nor “concerning”. It was not continuous pain like the pain that he had suffered since 8 March 2021.
The applicant was then taken to the history which he provided to Associate Professor Miniter (see paragraph 66 above). He conceded that he had a discussion with the doctor about his general practitioner’s clinical notes. The applicant confirmed that he advised the doctor that he had not had “significant back pain” prior to 8 March 2021, and that he did not have leg pain prior to that date.
The applicant was then taken to the history which he provided to Dr Davies (see paragraph 69 above). When asked about his denial to the doctor of “previous back or leg problems”, he advised that the pain that he experienced 8 March 2021 was “never experienced in my life before”.
The applicant denied that he had back pain on the weekend prior to 8 March 2021 and he also denied telling Saini Singh as such. He maintained that he told Saini Singh on
8 March 2021 that his back pain was as a result of lifting paint tins. In relation to the two text messages that he sent to Jana da Silva on 8 March 2021 (see paragraphs 57 and 58 above), he advised that if he did not mention that his back pain was as a result of lifting paint tins in those messages, it was because he had already advised Saini Singh as such, and because he was in so much pain.
The applicant was then re-examined, during which he made it clear that his position was that he had had back pain prior to 8 March 2021 but that it did not concern him.

Applicant’s submissions

The applicant’s submissions have been recorded and I will not repeat them in detail.
The applicant submits that there was a significant pathological change which occurred to his back on 8 March 2021, which has led to ongoing pain and radiculopathy which was not present beforehand. In cross-examination, he was consistent that his back and leg symptoms prior to that date were not significant to him and were temporary. This evidence is entirely consistent with the evidence from his treating general practitioner, Dr Ali (including the fact that Dr Ali did not see the need for radiological investigations prior to 8 March 2021).
Dr Abraszko was also eventually provided with a history of the applicant’s back and leg complaints prior to 8 March 2021, but she still maintained that the “event” which occurred on that date (the lifting of paint tins) permanently aggravated his back condition, and she provides a detailed explanation in this regard. Dr New was also eventually provided with a history of the applicant’s back and leg complaints prior to 8 March 2021, and he maintained that that event caused the applicant’s radiculopathy.
Dr Miniter’s history taking from the applicant is described as confusing and not helpful. He purports to interpret the applicant’s treating general practitioner’s clinical notes and discuss them with the applicant in a vague manner, using the term “issues”, rather than being specific.
The applicant points to there being no reliable evidence from Saini Singh, and therefore, the applicant’s history as to how he was injured on 8 March 2021 should be accepted.
In relation to the surgery proposed by Dr New for the applicant, the applicant submits that:
(a)    Dr Davies recognises the surgery as being reasonable and appropriate;
(b)    Dr Ali (who is aware of the applicant’s symptoms prior to 8 March 2021) supports the need for the surgery as the applicant’s condition has become “acute and chronic” since 8 March 2021;
(c)    Dr Abraszko’s comments support the 8 March 2021 event as being a material contributing factor to the need for the surgery;
(d)    Dr New is clear in his opinion as to the need for the surgery arising from the applicant’s radicular pain which commenced on 8 March 2021, and
(e)    Dr New is also clear in his opinion that the surgery can alleviate the applicant’s leg pain - in circumstances where previous treatment attempts have provided no lasting benefit to the applicant.

Respondent’s submissions

The respondent’s submissions have also been recorded and I will not repeat them in detail.

The respondent refers me to Maitland City Council v McInnes [2021] NSWPICPD 22 (McInnes) as summarising the authorities dealing with the need for pathological change in order for injury to be found pursuant to s 4 of the 1987 Act. It submits that there needs to be “something that changes the pathology in an appreciable way”, and it submits that such a finding is not open to me in this case because of the applicant’s credit. The applicant repeatedly stated to doctors whom he consulted with that he did not have a history of back or leg pain prior to 8 March 2021, and he conceded that he lied to Dr Abraszko in this regard. He has obscured his history to such an extent that pathological change cannot be identified with reference to lifting paint tins on 8 March 2021, especially when he did not mention that activity in his text messages on that date to Jana da Silva.
While conceding that this dispute is “primarily a factual case”, the respondent then reviews the medical evidence from Drs New, Ali and Abraszko. Dr Ali’s opinions “do not assist”, and the opinions of Drs New and Abraszko “get off on the wrong foot” in terms of the applicant’s history, and as a result, fail to “adequately grapple” with the correct history of the applicant’s complaints of pain prior to 8 March 2021. Likewise, the applicant’s statement evidence is not helpful as it is provided on the basis of the false proposition that all of the applicant’s current back and leg symptoms are due to lifting paint tins on 8 March 2021.
In relation to the surgery proposed by Dr New for the applicant, the respondent advises that it does not dispute the appropriateness of the treatment “at a medical level”, but does submit that the treatment is premature, as pain management should be attempted first.
Finally, in answer to my questioning regarding the weight to be given to Saini Singh’s email (see paragraph 65 above), the respondent submits that the email is contemporaneous and an internal business record, which is consistent with the text messages sent by the applicant to Jana da Silva on 8 March 2021, in not referring to any contemporaneous reporting by the applicant of the reason for his back and leg pain on 8 March 2021 being the lifting of paint tins.
The respondent’s counsel advises me that he has no instructions or knowledge as to why there is no signed statement from Saini Singh in evidence.

Applicant’s submissions in reply

These submissions have also been recorded and I will not repeat them in detail.
The applicant submits:
(a) in relation to the issue of his credit, there is no deliberate concealment or deceit – his histories given may be misleading as to the importance or medical significance of his back and leg symptoms prior to 8 March 2021, but he explained that was a result of the fact that he was not concerned about those symptoms, and
(b) I should draw an inference in accordance with the rule in Jones v Dunkel [1959] HCA 8 (Jones v Dunkel) in relation to the respondent’s failure to provide a signed statement from Saini Singh.

FINDINGS AND REASONS

Did the applicant sustain an injury in accordance with s 4 of the 1987 Act on 8 March 2021

“Injury” is defined in s 4 of the 1987 Act as follows:
“In this Act: injury means:
(a)     personal injury arising out of or in the course of employment,
(b)     includes a ‘disease injury’, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
As submitted by the respondent, in McInnes, Snell DP provided a useful summary of relevant authorities (including Zickar v MGH Plastic Industries Pty Limited [1996] HCA 31 (Zickar), Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45 (Petkoska), Military Rehabilitation and Compensation Commission v May [2016] HCA 19 (May) and Castro v State Transit Authority (NSW) [2000] NSWCC 12 (Castro)) at [126-132]:
“126. The appellant poses the question regarding the mechanism of injury (see [112] above) on the basis that a finding of ‘injury simpliciter’ and a finding of ‘disease’ are alternatives. The decision of the High Court in Zickar v MGH Plastic Industries Pty Ltd involved the rupture of an aneurism (the aneurism being a disease). Toohey, McHugh and Gummow JJ (who were in the majority) described the question at issue:
‘At the forefront of the appeal is a question of construction of s 4. The appellant says that if there is personal injury as described in par (a) the inquiry need proceed no further. If there is not personal injury as described he must rely on par (b) in which case the question of employment as a contributing factor has to be considered. But, he says, the two paragraphs are not mutually exclusive, nor is par (b) to be read as limiting what otherwise would be within the reach of par (a); they simply provide two bases upon which a claim may succeed. The respondent answers that this approach involves an unwarranted fragmentation of the definition of injury. The definition must be read as a whole and if the worker has contracted a disease (and an aneurism is a disease) the worker must establish employment as a contributing factor.’
127. Their Honours said:
‘It may be accepted that the aneurism was an autogenous disease but the appellant's claim to personal injury within par (a) is based on the rupture which occurred. From Dr Stening's evidence, it is clear that the rupture of the aneurism was not inevitable and further that the rupture may have been minor, allowing the appellant, after treatment, to return to his previous occupation. If there was no rupture there would be no event answering the description of personal injury and the appellant would be driven to rely upon par (b) of the definition. But there was such an event and the presence of a disease does not preclude reliance upon that event as personal injury.’
128. In Kennedy Cleaning Services Pty Limited v Petkoska Gleeson CJ and Kirby J dealing with Zickar said:
‘The essential thesis that lay behind the appellant’s construction of the Act was that it established mutually exclusive classifications between ‘injury’ and ‘disease’ claims. Whilst this is an arguable approach to the operation of provisions such as ss 7(1) and 9 of the Act, and whilst it was the general approach favoured by the minority in Zickar, in the context of the Workers Compensation Act 1987 (NSW), it is an approach inconsistent with the reasoning, conclusions and orders favoured by the majority in that case.’
And:
‘There is no reason to read the word ‘injury’ down because of the alternative and additional definition of compensable disease conditions. On the contrary, considerations of the language and structure of the Act, of legislative history and of the proper approach to construing such legislation reinforce the conclusion to which the majority came in Zickar.’
129. The decisions in Zickar and Petkoska were discussed and applied in Ky, a decision of mine relied on by the respondent in its submissions on this ground. The decision in Ky also raised and applied the decision of the High Court in Military Rehabilitation and Compensation Commission v May. The following passage from May was quoted in Ky:
‘47. However, as the Full Court correctly held, ‘suddenness’ is not necessary (emphasis in the original) for there to be an ‘injury’ in the primary sense. A physiological change might be ‘sudden and ascertainable’. A physiological change might be ‘dramatic’. The employee’s condition might be a ‘disturbance of the normal physiological state’. That an ‘injury’ in the primary sense can arise, and can be described, in a variety of ways does not mean that ‘suddenness’ is irrelevant. As the Full Court said, ‘suddenness’ is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in [Zickar] and [Petkoska]). But it is the physiological (emphasis in original) change – the nature and incidents of that change – that remains central.
48. That an ‘injury’ in the primary sense can arise, and be described, in a variety of ways was recognised by Gleeson CJ and Kirby J in [Petkoska] when their Honours stated:
‘[C]onsideration [must] be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial (emphasis in original). If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state (emphasis in original), it may qualify for characterisation as an ‘injury’ in the primary sense of that word.’’
130. In Yum Restaurants Australia Pty Ltd trading as Pizza Hut Restaurants v Watters Roche DP dealt with the issue saying:
‘Ms Watters argued that the terms personal injury and disease are not mutually exclusive categories and that a sudden or identifiable physiological (pathological) change to the body brought about by an internal or external event can be a personal injury and the fact that the change is connected to an underlying disease process does not prevent the event being a personal injury (Hoani v Chubb Security Australia Pty Ltd (2000) 21 NSWCCR 242 (‘Hoani’)). As a statement of principle, this is undoubtedly correct and is consistent with the High Court authorities of [Zickar] and [Petkoska].’
131. In Castro v State Transit Authority (NSW) Armitage CCJ reviewed a number of the authorities relating to the proof of injury simpliciter, including Zickar. His Honour, in a frequently cited passage, referred to the reasons of Kirby J in Zickar, saying his Honour ‘makes it clear that what is required for an ‘injury’ within para (a) to occur is a ‘sudden or identifiable pathological change’ in the body, whether internal or external’.
132. I accept the appellant’s submission that the finding of injury made by the Senior Arbitrator was one pursuant to s 4(a) of the 1987 Act (see [113] to [114] above). The Senior Arbitrator specifically rejected the proposition that a finding of ‘disease’ should be made. Having regard to the authorities discussed above, if the condition present constituted a ‘disease’ it would still be possible (if the evidence warranted it) to make a finding of injury pursuant to s 4(a) of the 1998 Act. This is not inconsistent with Rail Services Australia v Dimovski.”
In Galluzzo v Commonwealth Bank of Australia [2014] NSWWCCPD 82 (Galluzzo), Roche DP stated at [30]:
“A ‘personal injury’ is ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ (Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286 per Gleeson CJ and Kirby J at [39]). The Commission has consistently applied this statement (North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 from [79] (Felstead)). Moreover, as was explained in Felstead (at [81]), to constitute a personal injury, such a physiological change or disturbance change “may be as simple as a bruise or a soft tissue strain”.
The thrust of the respondent’s submissions (see paragraph 96 above) is that I cannot accept the evidence of the applicant because of his repeated failure to advise doctors of his history of back and leg pain prior to 8 March 2021. As a result, the submission is that I cannot be satisfied with his evidence that his back and right leg condition pathologically changed as a result of lifting paint tins on 8 March 2021.
While it would have been preferable for the applicant to have initially provided this history to Dr New as well as the doctors that examined him for medico-legal purposes, I am not of the opinion that the applicant’s failure in this regard should lead me to reject his evidence. He was extensively cross-examined (see paragraphs 82-86 above) in this regard, and consistent in his position that his complaints about back and leg pain prior to 8 March 2021 had not concerned him, and he had therefore not remembered them. The impression that I received was that he did not believe his previous complaints to be significant in any way, following the onset of the debilitating back and right leg pain that he described as occurring following
8 March 2021.
I witnessed the demeanour of the applicant while he was giving oral evidence, and I have since listened to a recording of that evidence again. It is my opinion that he was occasionally confused, but otherwise answered questions without obfuscation, while doing his best to remember past events. I did not form a negative view as to his credit. From my observation of him, I believe that he was doing his best to remember his history of back and leg pain. He was not particularly erudite when giving oral evidence, and some of that evidence was rather vague, but I do not believe that he was attempting to hide the truth. Indeed, he conceded that he made a “false comment” to Dr Abraszko (see paragraph 84 above). In general, I accept the submissions of the applicant regarding his oral evidence (see paragraph 102(a) above).
The applicant’s explanation as to the insignificance of his complaints about back and leg pain prior to 8 March 2021 is also entirely consistent with the views of his general practitioner,
Dr Ali. The doctor explains (see paragraph 32 above) that these complaints did not escalate, they did not require radiological investigation, and the applicant did not need to attend further consultations in relation to them.
I therefore accept the applicant’s evidence that (see paragraph 17 above) he suffered back pain radiating into his right leg while lifting paint tins on 8 March 2021. The mechanism of his injury in this regard is consistent with the explanation in his claim form signed 26 April 2021, and consistent with him attending Dr Ali complaining of back and right leg pain on
8 March 2021, as well as with him sending text messages to Jana da Silva on that date advising of leg pain.
The applicant also says (see paragraphs 20 and 87 above) that he reported his injury while lifting paint tins to his team leader, Saini Singh, on 8 March 2021. I accept this evidence in circumstances where there is no reliable evidence to the contrary from Saini Singh and where the respondent has provided no explanation for this failure. There is an unsigned and unauthenticated email (see paragraph 65 above) said to be from Saini Singh, suggesting that the applicant told Saini Singh that he had hurt his back on the weekend prior to
8 March 2021. In the circumstances, I give next to no weight to the comments made in the email, as there is no signed statement from Saini Singh. I agree with the applicant (see paragraph 102(b) above) and draw an inference that any signed evidence from Saini Singh would not have helped the respondent. This Jones v Dunkel inference entitles me to more readily accept that the applicant reported his injury whilst lifting paint tins to Saini Singh on
8 March 2021. I appreciate that the inference does not create evidence or permit an inference that a signed statement from Saini Singh would be adverse to the respondent.

Although I do not give much weight to the email from Saini Singh, I do note however that the email corroborates the fact that the applicant was lifting paint tins on 8 March 2021.
I do not believe that the statement from Jana Da Silva assists my deliberations to a significant degree. It contains irrelevant and hearsay comments, from a person who was not present supervising the applicant on 8 March 2021. Much more reliable evidence would have been available to the respondent from Saini Singh, whom Jana da Silva describes in her statement as a person of “high integrity” (see paragraph 63 above).
I understand that the respondent largely relies upon the statement of Jana da Silva to demonstrate that the applicant did not inform her in the text messages that he sent to her on 8 March 2021 that he had injured himself by lifting paint tins. This fact is clear from the text messages (although they are not particularly sophisticated, and certainly not provided with the intention of providing detailed information), but I do not believe that it carries significant weight, in circumstances where the applicant has reported his injury to both Dr Ali and Saini Singh (which I accept) on 8 March 2021.
Therefore, there does not seem to me to be any significant contradictory evidence to the applicant’s evidence that he suffered back pain radiating into his right leg while lifting paint tins on 8 March 2021.
In relation to the medical evidence, there does not seem to be any significant inconsistency between the opinions expressed by Drs Ali, New and Abraszko. These opinions are not tainted by the doctors being unaware of the applicant’s complaints of back and leg pain prior to 8 March 2021. Dr Ali was aware of those complaints having been the applicant’s treating general practitioner for around eight years, and Drs New and Abraszko did not alter their opinions once they were both provided with the relevant clinical notes that documented the complaints.
In my opinion, having been the applicant’s treating general practitioner for around eight years and actually being the general practitioner that documented his complaints about back and leg pain prior to 8 March 2021, Dr Ali is placed in an excellent position to provide opinions regarding the applicant’s condition. I intend to afford his opinions significant weight. He is clear in his opinion (see paragraph 32 above) that the applicant’s current condition is related to his injury on 8 March 2021 and not to any pre-existing back condition.
Dr New has also consulted with the applicant on many occasions. He is also clear in his opinion (see paragraphs 42-43 above) that the applicant’s “debilitating back pain and genuine radiculopathy” relates to his injury on 8 March 2021 and not to any pre-existing back or leg condition. He accepts that while the applicant had some discomfort in his right leg beforehand, he did not have sciatica and he was able to work without restriction.
Dr Abraszko provides a detailed medico-legal report. She diagnoses (see paragraph 52 above) a L5/S1 disc protrusion compressing the applicant’s S1 nerve root. She says the protrusion was probably present as a mild condition prior to 8 March 2021, but that the applicant’s injury on that date caused a further rupture which made the condition permanent. She assesses that the applicant’s need for the surgery recommended for him by Dr New is 80% due to the 8 March 2021 injury. She explains her opinion in detail and by specifically relying upon radiological evidence (see paragraph 53 above).
I prefer the evidence of Drs Ali, New and Abraszko to the medical evidence relied upon by the respondent from Dr Davies, on the following grounds:
(a)    Dr Davies only consulted with the applicant on one occasion - in contrast to particularly Drs Ali and New;
(b)    Dr Davies’ opinions as to the causation of the applicant’s current back and right leg condition are inconsistent with the opinions of Drs Ali, New and Abraszko;
(c)    Dr Davies obtained a history (which I have rejected) of allegations made by Jana da Silva of the applicant injuring himself mowing lawns on the weekend prior to
8 March 2021;
(d)    Dr Davies’ third report proceeds upon the erroneous assumption that the applicant had radiological investigations of his back prior to 8 March 2021, on
28 June 2020 – not only did the doctor fail to confirm whether such investigations took place by requesting to view the investigations, but the respondent also failed to request a supplementary report from the doctor advising him that the investigations did not take place;
(e)    Dr Davies’ first report seems to be internally inconsistent – he accepts an aggravation of a degenerative condition (see paragraph 71 above) but then disputes such an aggravation (see paragraph 73 above), and
(f)    I find Dr Davies’ explanations for his opinion as to the applicant’s condition being related to a pre-existing condition and not an injury on 8 March 2021, as lacking in detail - his lack of reasoning in this regard is recorded at paragraphs 73 and 76 above, and I find his statements to be ipse dixit - as earlier recorded (see paragraph 119 above), Dr Abraszko is much more detailed in explaining her opinions, and she also reliably considered radiological evidence.
Accepting the evidence of Drs Ali, New, and Abraszko, as well as the evidence of the applicant, I am comfortably satisfied on this evidence that on 8 March 2021 while lifting tins of paint, the applicant sustained “something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state” in accordance with Petkoska. The pathological change that occurred on 8 March 2021 is identifiable (in accordance with Castro) as:
(a)    the applicant has made it clear during cross-examination that his back and leg symptoms prior to 8 March 2021 were not significant to him - he has explained (see paragraphs 18-19 above) that after his 8 March 2021 injury, he needed to take medication and have time off work, and indeed was in so much pain by
19 March 2021 to cause him not to work since then - he has also explained his treatment history since 8 March 2021 and his current symptoms (see paragraph 24 above) which severely interfere with all his activities of daily living;
(b)    Dr Ali explains the significant difference between the applicant’s back and leg symptoms prior to 8 March 2021 and subsequent to 8 March 2021 – see paragraph 32 above;
(c)    Dr New (once he is made aware of the applicant’s complaints of back and leg pain prior to 8 March 2021) opines that (see paragraph 43 above) the incident on 8 March 2021 caused radicular pain for the first time, as well as “debilitating back pain”, and
(d)    Dr Abraszko (see paragraph 52 above) opines that the incident on 8 March 2021 caused a “further rupture of the disc annulus and disc protrusion”.
I therefore find that in accordance with s 4(a) of the 1987 Act, the applicant sustained a personal injury to his back and right leg on 8 March 2021 while lifting tins of paint. Even though this injury may have occurred in the presence of a degenerative disease, this does not prevent a finding that a personal injury occurred, in accordance with Zickar and Petkoska. Indeed, the rupture of the aneurism which was the subject of Zickar can be compared with the applicant’s rupture described by Dr Abraszko.
It follows that I reject the respondent’s submissions at paragraphs 96-97 above. In this regard, I do not find any significant issues with the applicant’s credit, and I am of the opinion that:
(a) Dr Ali’s medical evidence significantly assists me in my determination – see paragraph 117 above, and
(b) both Drs New and Abraszko more than adequately “grapple” with the issue as to the causation of the applicant’s current condition, once provided with the correct history of his complaints of back and leg pain prior to 8 March 2021.
Although not specifically raised in the respondent’s submissions, it is still necessary for the applicant to satisfy s 9A of the 1987 Act, an issue specifically raised by it in its notice dated 14 December 2022 pursuant to s 78 of the 1998 Act.
Section 9A relevantly provides:
“No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.”
Sub-section (2) of s 9A provides examples of matters to be taken into account in determining whether employment was a substantial contributing factor. The list, which is not exhaustive, has six examples:
(a)       the time and place of the injury;
(b)       the nature of the work performed and the particular tasks of that work;
(c)       the duration of the employment;
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment;
(e)the worker’s state of health before the injury and the existence of any hereditary risks, and
(f)       the worker’s lifestyle and his or her activities outside the workplace.
Whether employment is a substantial contributing factor to an injury is a question of fact and is a matter of impression and degree (Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153 at [29]) to be decided after a consideration of all the evidence.
In this case, I am satisfied that the applicant’s employment with the respondent was a substantial contributing factor to the injury which I have found he suffered on 8 March 2021. I accept the opinions of Drs Ali, New and Abraszko in this regard. The only other potential contributing factor is a pre-existing lower back condition of the applicant’s, which is specifically excluded as being relevant by Drs Ali (see paragraph 32 above) and New (see paragraph 43 above), and which is seen to be contributory to the degree of 20% only by Dr Abraszko (see paragraph 53 above).
In dealing with the other matters referred to at paragraph 126 above, I note that there is no reliable evidence to support the relevance of any hereditary risks or lifestyle activities in the causation of the applicant’s back and right leg condition. I also note that the 8 March 2021 injury occurred at a time when the applicant was present upon the respondent’s premises engaged in employment activities (lifting tins of paint) which, according to the evidence that I have accepted, led to an ascertainable physiological change in his back and leg condition.
Having regard to my findings that the applicant satisfies ss 4(a) and 9A of the 1987 Act, and having regard to the concessions made by the respondent (see paragraph 11 above) at the commencement of the arbitration hearing, awards for the applicant pursuant to ss 37 and 60 of the 1987 Act will follow.

Is the surgery proposed for the applicant by Dr New (a bilateral L4/5 and L5/S1 decompression, laminotomy and neurolysis and right L5/S1 disc excision) reasonably necessary medical treatment as a result of the injury on 8 March 2021

Section 60 (1) of the 1987 Act provides as follows:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that--
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
Section 59 of the 1987 Act then defines ‘medical or related treatment’ as including:
“(a)    treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist,
(b)     therapeutic treatment given by direction of a medical practitioner,
(d)     the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,
(e)     any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,
(f)      care (other than nursing care) of a worker in the worker's home directed by a medical practitioner having regard to the nature of the worker's incapacity,
(f1)    domestic assistance services,
(g)     the modification of a worker's home or vehicle directed by a medical practitioner having regard to the nature of the worker's incapacity, and
(h)     treatment or other thing prescribed by the regulations as medical or related treatment,”.
The first question to therefore determine is whether the surgery proposed by Dr New for the applicant is reasonably necessary treatment.
The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) (1986) 2 NSWCCR 2 (Rose), where his Honour said:
“3.     Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.      In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
In Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab), Roche DP considered Rose and concluded:
“86. Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.
87.   Giles JA added (at [49] in O’Shea) that the qualification whereby the necessity must be reasonable calls for an assessment of the necessity having regard to all relevant matters, according to the criteria of reasonableness. His Honour was talking in the context of whether an easement should be granted under s 88K of the Conveyancing Act 1919, which provides that ‘the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement’. However, his Honour’s observations are applicable in the present matter and are clearly consistent with Clampett.
88.    In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
·(a) the appropriateness of the particular treatment;
·(b) the availability of alternative treatment, and its potential effectiveness;
·(c) the cost of the treatment;
·(d) the actual or potential effectiveness of the treatment, and
·(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
89.   With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
I have accepted the evidence of the applicant. He has been referred for physiotherapy treatment, remedial massage treatment, taken medication, and undergone injections (see paragraphs 21 and 24 above). None of this treatment has been particularly effective, and his back and right leg pain is still significant. He wishes to undergo the surgery recommended by Dr New.
Dr Ali considers (see paragraph 29 above) that until the applicant has undergone the surgery, any discussion as to his capacity for work cannot take place.
Dr New has reviewed the applicant on numerous occasions, and carefully considered the applicant’s complaints of pain, his examination findings, and the applicant’s radiological evidence. He initially recommended conservative treatments, but since 31 May 2021, has recommended surgery. He has considered the surgery to be both reasonable and necessary since then (see paragraph 37(a) above), and he also (see paragraph 37(c) above) believes that any discussion as to the applicant’s capacity for work needs to await functional and vocational assessments subsequent to the surgery.
Dr Abraszko adds that without the surgery, the applicant “will not be able to function in the society and he will never return to any gainful employment”.
Dr Davies also supports the surgery as being “appropriate” treatment to be performed primarily to relieve the applicant’s right leg pain (see paragraph 74 above).
In my opinion, there is unanimous support for the surgery proposed by Dr New as being reasonably necessary treatment for the applicant’s current back and right leg condition. In considering the matters referred to in Rose and Diab, I find:
(a)    the surgery proposed by Dr New is appropriate treatment for the applicant’s back and right leg symptoms – this is clearly the opinions of Drs Ali, New, Abraszko, and Davies;
(b)    in relation to alternative treatment, the applicant has tried various modalities without any significant relief to his back or right leg symptoms – his attempts in this regard have been acknowledged by Drs New, Abraszko, and Davies – the proposed surgery is now the only treatment option for the applicant mentioned by any of those doctors – according to Dr New (see paragraph 40 above), the only alternative to not proceeding with the surgery would involve not providing the applicant with reasonable and necessary treatment - I therefore do not accept the respondent’s submission at paragraph 98;
(c)    the approximate fees for the surgery are outlined by Dr New at paragraph 37(a) above – they do not appear to be excessive to me, and indeed, the respondent has not submitted otherwise;
(d)    in relation to the potential effectiveness of the proposed surgery, Dr New considers (see paragraph 41 above) that there is an 85% chance of a good or excellent result in relation to the applicant’s right leg pain, and Dr Abraszko considers (see paragraph 51 above) that the surgery should improve the applicant’s right leg pain by 80% and may improve his back pain by 50%, and
(e)    considering the support given by Drs Ali, New, Abraszko, and Davies to the proposed surgery being required, I find that it has acceptance by medical experts as being appropriate and as likely to be effective – the respondent has not submitted otherwise.
In relation to the applicant’s respiratory issues which prevented his proposed surgery from proceeding on 28 January 2022, I do not consider those issues to have an effect upon my determination as to the current reasonable necessity for the surgery. In this regard, Dr New is now satisfied (see paragraph 40 above) that the applicant has recovered from those issues. There is also further evidence from a respiratory specialist (Dr Wu - see paragraph 80(a) above) finding no significant underlying pulmonary disease. Dr Davies refuses to opine as to whether the applicant’s respiratory issues have been sufficiently addressed, and the respondent does not submit otherwise.

I therefore determine that the proposed surgery recommended to the applicant by Dr New is reasonably necessary treatment for his current back and right leg symptoms.
It is now necessary to consider whether there is a material contribution from the injury to the applicant’s back on 8 March 2021 to the need for the surgery proposed by Dr New.
In Murphy v Allity Management Services Pty Limited [2015] NSWWCCPD 49, Roche DP stated:
“58. Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
I have already determined that, and explained why, I prefer the opinions of Drs New and Abraszko to the opinion of Dr Davies regarding the causation of the applicant’s current back and right leg symptoms being due to the injury on 8 March 2021. In those circumstances, I do not find helpful Dr Davies’ opinion (see paragraph 74 above) that while Dr New’s proposed surgery is appropriate, the need for it has not arisen as a consequence of employment.
Instead, I consider that both Drs New and Abraszko have specifically linked the need for the surgery with the applicant’s 8 March 2021 injury, and I intend to rely upon their opinions in this regard.
Dr New (see paragraph 43 above) provides a very strong opinion that it is “certainly not the case” that the need for surgery is as a result of a pre-existing condition – the applicant’s “debilitating back pain and genuine radiculopathy has occurred as a result of the injury as per his history”.
Further, Dr Abraszko (see paragraph 53 above) actually opines as to a percentage (80%) in relation to which the applicant’s need for surgery has arisen from his injury on 8 March 2021. I consider that an 80% contribution is certainly a ‘material contribution’.

SUMMARY

I find that the applicant sustained a personal injury to his back and right leg on 8 March 2021, arising out of or in the course of his employment with the respondent, in accordance with s 4 of the 1987 Act. I also find that his employment with the respondent was a substantial contributing factor to the injury in accordance with s 9A of the 1987 Act.
I further find that the surgery proposed for the applicant by Dr New (a bilateral L4/5 and L5/S1 decompression, laminotomy and neurolysis and right L5/S1 disc excision) is reasonably necessary medical treatment for him as a result of his injury on 8 March 2021.
In accordance with the agreement of the respondent, there will be an award in favour of the applicant pursuant to s 37 of the 1987 Act in the amount of $815.07 per week from 22 February 2023 to date and on a continuing basis.
In accordance with the agreement of the respondent, there will be an award that the respondent pay the applicant’s reasonably necessary expenses pursuant to s 60 of the 1987 Act.
There will also be a specific award that, pursuant to s 60 of the 1987 Act, the respondent pay the costs of and incidental to the surgery proposed for the applicant by Dr New (a bilateral L4/5 and L5/S1 decompression, laminotomy and neurolysis and right L5/S1 disc excision).