Darious v Coles Group Supply Chain Pty Ltd

AMENDED CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Darious v Coles Group Supply Chain Pty Ltd [2022] NSWPIC 71
APPLICANT:	Jonathon Darious
RESPONDENT:	Coles Group Supply Chain Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	7 February 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for ongoing weekly compensation and section 60 of the Workers Compensation Act 1987 (1987 Act) expenses; accepted lumbar injury in lifting event at work; applicant claims injury to cervical spine and left shoulder in same event or injury to all body parts as a result of the nature and conditions of his employment; secondary psychological condition; inconsistencies in reported mechanism of injury and onset of symptoms in the medical evidence; prior symptoms and injuries at the relevant body parts not related to work; Held- the applicant failed to discharge his onus of demonstrating injury due to the nature and conditions of his employment or injury to his cervical spine in the frank event; the applicant sustained injury to his left shoulder in the frank event and a secondary psychological condition; total incapacity during period of weekly compensation claimed; awards for the applicant for weekly compensation and section 60 of the 1987 Act expenses.
DETERMINATIONS MADE:	1. The applicant sustained an injury pursuant to ss 4(a), 4(b)(ii) and 9A of the Workers Compensation Act 1987 to his left shoulder on 4 April 2020. 2. Award for the respondent in respect of an injury to the applicant’s cervical spine on 4 April 2020. 3. Award for the respondent in respect of an injury to the applicant’s cervical spine, lumbar spine and left shoulder due to the nature and conditions of his employment with the respondent. 4. The applicant sustained a secondary psychological condition as a result of the injury on 4 April 2020. 5. The applicant has had no current work capacity as a result of the injury on 4 April 2020 from 15 June 2020 to date and continuing.
DETERMINATIONS MADE	1. The respondent to pay the applicant weekly compensation pursuant to ss 36(1) and 37(1) of the Workers Compensation Act 1987 based on a pre-injury average weekly earnings (PIAWE) figure of $1,706.49, indexed periodically, from 15 June 2020 to date and continuing. 2. The respondent to pay the applicant’s reasonably necessary medical and related treatment expenses resulting from the injury on 4 April 2020, pursuant to s 60 of the Workers Compensation Act 1987, upon production of accounts, receipts, and/or Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Mr Jonathon Darious (the applicant) was employed as a forklift driver and pick/packer by Coles Group Supply Chain Pty Ltd (the respondent) between 2011 and 4 April 2020. The applicant alleges that he sustained an injury to his lumbar spine, cervical spine and left shoulder in the course of his employment. In addition, the applicant claims to have sustained a secondary psychological condition as a result of his physical injuries.
Liability for an injury to the applicant’s lumbar spine on 4 April 2020 was initially accepted by the respondent. Weekly payments of compensation in respect of that injury were ceased on 16 June 2020 when the respondent issued a work capacity decision.
Liability for an injury to the applicant’s cervical spine and left shoulder was disputed in notices issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 15 May 2020, 15 June 2020, 13 October 2020 and 3 November 2020.
Liability for the secondary psychological condition was disputed in further notices issued on 18 August 2020 and 4 December 2020.
Liability in relation to the applicant’s physical injuries and psychological condition remained in dispute in a notice issued on 21 December 2020.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 15 September 2021. The applicant sought weekly compensation from 15 June 2020 on an ongoing basis and compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

At the initial teleconference in these proceedings, directions were made amending the ARD to allege a frank injury to the applicant’s lumbar spine, cervical spine and left shoulder on 4 April 2020 in addition to an injury to the same body parts due to the nature and conditions of the applicant’s employment with the respondent, as well as the secondary psychological condition.
The applicant also sought to include a claim for a proposed lumbar surgery. That claim was, however, discontinued at conciliation conference and arbitration hearing on 6 December 2021.

The applicant was represented at the conciliation / arbitration by Mr Craig Tanner, of counsel, instructed by Ms Jeanne Huang. The respondent was represented by Mr Tony Baker of counsel, instructed by Ms Monica Nguyen.
During the conciliation conference, directions were made admitting into evidence the documents attached to an Application to Admit Late Documents lodged by the applicant on 1 December 2021.
For the purposes of cl 44 of the Workers Compensation Regulation 2016, the respondent elected not to rely on the expert reports of Dr Richard Powell dated 25 February 2021 and 9 August 2021.
The applicable pre-injury average weekly earnings (PIAWE) figure was agreed at $1,706.49, subject to indexation.
Oral submissions on the outstanding matters in dispute were heard from the applicant. It was not, however, possible to hear oral submissions from the respondent in the allocated time. The hearing was adjourned to 21 December 2021 in order to hear the respondent’s submissions and submissions from the applicant in reply.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant sustained an injury to his lumbar spine, cervical spine and left shoulder due to the nature and conditions of his employment with the respondent between 2011 and 4 April 2020;
(b)    whether the applicant sustained an injury to his cervical spine and left shoulder on 4 April 2020;
(c)    whether the applicant has sustained a secondary psychological condition;
(d)    the extent and quantification of incapacity resulting from injury, and
(e) the entitlement to the s 60 expenses claimed.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents other than the reports of Dr Richard Powell, dated 25 February 2021 and 9 August 2021, and
(c)    documents attached to the Application to Admit Late Documents lodged by the applicant on 1 December 2021.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by him on 15 September 2021.
The applicant commenced full time employment with the respondent in 2011 as a forklift driver and pick/packer. The applicant worked four days a week on 10 hour shifts.
The applicant described the nature and conditions of his employment as requiring repetitive heavy lifting, bending, twisting and carrying. The work was strenuous and the applicant was required to perform a variety of heavy tasks at a fast pace.
The applicant gave the example of cutting plastic wrapped in multiple layers around pallets stacked 10 high and taller than himself. This required the applicant to look up and down as he cut through the plastic. The applicant would be required to attend to this particular task repeatedly during his shifts and it placed a large amount of pressure on his shoulder and neck.
The applicant was required to frequently carry and lift various heavy boxes filled with stock such as soaps, shampoos, conditioners and oils.
At the “decan station”, the applicant was required to open boxes then lift and place items into a basket. The basket would be pushed onto a conveyor. This task involved a lot of twisting of the back the applicant was sometimes required to work at the station all day.
On other days, the applicant would be required to floor pick by picking boxes onto pallets repeatedly. This involved carrying and lifting boxes by hand then wrapping the pallet in layers of plastic by hand.
Sometimes the boxes were not stable and things would fall out, causing the applicant to twist his body to catch the items and bend to pick them up.
The applicant was also required to operate an electric high reach forklift, which required the applicant to look up at the forklift’s claw while picking up pallets. This would put strain on the applicant’s neck.
As a result of the nature and conditions of his employment, the applicant alleged an injury to his lumbar spine, cervical spine and left shoulder. Pain in these body parts developed over time but became worse on 4 April 2020.
The applicant described an incident on that day as follows:
“On 4 April 2020, I was in the process of lifting a box of detergent out of a pallet when several bottles fell out of the box. As I tried to pick up these bottles and put them back into the cage, I twisted my back and fell onto my left side. I felt an immediate sharp pain in my lower back.
I tried to lay on the floor, leaning onto my left shoulder, to relieve the pain I felt from my lower back.”
The applicant was assisted off the floor and provided with ice packs. The applicant did not work for the remainder of his shift. The pain in the applicant’s lower back persisted and got progressively worse. The applicant began to experience pain radiating down both legs as well as in his neck and left shoulder.
The applicant sought treatment for his injury on 8 April 2020. The applicant consulted Dr Eric Lim at the Workers Doctors and was referred for an MRI of the cervical and lumbar spine. The applicant was subsequently referred to Dr Peter Khong, neurosurgeon and for treatment through physiotherapy and hydrotherapy.
The applicant paid for the MRI out of his own pocket and it was performed on 26 June 2020. The scan revealed multilevel disc bulges at C3 to C6 and L3 to L5.
The applicant said he was treated by Dr Khong through funding from the insurer with respect to his lumbar spine injury only. As a result, the applicant did not consider it appropriate to discuss his neck or shoulder. The applicant did, however, make complaints about these body parts to his other treatment providers.
The applicant underwent an MRI to the left shoulder funded by Medicare on 9 October 2020, which confirmed various conditions of the left shoulder including a partial thickness tear of the supraspinatus, bursitis and tendinosis. The applicant was then referred to Dr Gavin Soo, whom he consulted on 23 November 2020. Dr Soo recommended the applicant continue with hydrotherapy and undergo a cortisone injection, funded under Medicare.
The applicant was taking Panadeine Forte and Voltaren to ease his pain.
The applicant said he had also suffered a secondary psychological condition in the nature of an adjustment disorder with depressed mood due to the impact of his physical injuries on his day-to-day functioning. The applicant described requiring assistance with day-to-day tasks such as showering and driving. The applicant said he was frequently woken up at night by his pain and had started to self medicate with alcohol in order to aid his poor sleeping habits. The applicant had also been binge eating at night, causing him to gain weight. The applicant had attended a few sessions with a psychologist at the Workers Doctors which he had found helpful.
The applicant disclosed a number of prior injuries in the course of his employment with the respondent including, strains to his mid lower back on 4 March 2013 and 29 June 2013; a soft tissue injury to his left wrist on 15 September 2015; a psychological injury in 2016; and a left shoulder injury while removing of plastic from a pallet about three to six months prior to the incident on 4 April 2020. Following that incident, the applicant consulted a local general practitioner, whose details he could not recall, and was advised to rest and take Voltaren.

Notice and claim

A ‘Team Member Injury’ form completed on 4 April 2020 by the applicant and a first-aid team member contains a diagram of a human body and a direction to mark the location of injury with a pen. Only an area over the lower back is marked.
In response to a question regarding events leading up to and including the incident, the applicant stated,
“I was picking in the cage and when bend down to pick a cart and I felt pain in my lower back and a report to my manager right away. Aisle 43, detergent. Not sure of pick spot.”
A ‘worker’s injury claim form’ was completed by the applicant on 9 April 2020. In that form, the applicant described pick packing boxes and stacking in a cage. One of the boxes was loose and the applicant lost grip of the boxes. The applicant experienced sharp pain in his lower back. The affected body parts were identified as the lower left back and left shoulder.

Evidence from the insurer

In the dispute notice issued pursuant to s 78 of the 1998 Act on 15 June 2020, a senior claims specialist employed by the insurer, Ms Qura, described a telephone conversation she had with the applicant shortly after the injury:
“You also verbally advised me on the 9.4.2020 that you were picking in aisle 43, picking detergent to put in a cage and you twisted your back when you tried to hold falling bottles of detergent and as you did this, you reported you twisted your back and felt pain in your lower back only. In our initial phone conversation, you reported that pain in your left shoulder and left leg started 2-3 days after leaving your employment.
At no time did you report a fall to your left side to your employer or me.”

Treating medical evidence

The applicant was first seen by general practitioner Dr Eric Lim of the Workers Doctors on Wednesday, 8 April 2020. Dr Lim took a history as follows:
“Mr Jonathon Darious is a 49yrs 4mths old male, who initially presented for consultation on Wednesday, 8 April 2020 for an injury to Neck/Shoulder/Back.
Mr Darious works for his employer as a Storeperson.
On Wednesday, 8 April 2020 Mr Darious reported that whilst at work he suffered a Neck, shoulder and back injuries due to repetitive heavy lifting, bending and twisting at work.
From my understanding of the injured worker's role as a Storeperson, it would be reasonable to conclude that the mechanism of injury was the direct result of performing those specified tasks. The history given is consistent with employment being the main contributing factor to the injury. I do not have medical evidence to indicate an alternate mechanism of injury, but would be happy to consider such evidence if provided to me.”
On the same date, the applicant was seen by a physiotherapist, Lok Kan Li who recorded”
“DOI: 4/4/2020
MOI: was picking up boxes from the floor and back started hurting
Subjective: Pain location:
1. lower back
2. L shoulder
3.L leg
Pins and needles/ Numbness: numbness at lower back & L leg, comes & goes, agg with prolonged sitting/standing Weakness: L lower limb Radiculopathy: nil reported”
On 16 April 2020 the applicant reported ongoing pain and was referred for an MRI scan. The report of an MRI of the cervical and lumbar spine performed on 26 June 2020 recorded a clinical history of “persistent pain neck, lower back with radiculopathy”. According to the report, the MRI of the cervical spine showed:
“Mild multilevel diffuse disc bulge C3/4, C4/5 and C5/6. No disc protrusion and no central canal or foraminal stenosis.”
The MRI of the lumbar spine was reported to show:
“Diffuse disc bulge L3/4 and L4/5 levels with no disc protrusion and no central canal stenosis. Facet joint arthritis bilaterally at L3/4 and L5/S1
Narrowing of the inferior exit foramina bilaterally at L3/4 and L4/5 levels.”
A letter of referral to neurosurgeon and spine surgeon, Dr Peter Khong from the Workers Doctors dated 8 July 2020 stated:
“Herewith Mr Jonathon Darious who has persistent pain at neck and lower back with radiculopathy.”
The applicant was seen by Dr Khong on 22 July 2020. Dr Khong recorded there was “Nil” past medical history. With regard to the presenting illness, Dr Khong reported:
“Worked in Coles picking and packing and forklift driver for 9 years
Injury 4/4/20
Grabbing a box which started to split, tried to hold it to stop it from splitting, severe lower back pain like a knife
Couldn't stand for 2 weeks, had to crawl around Midline lower back pain
Gets numbness posterior left knee and calf
Sometimes gets numbness bottom of left foot, sometimes top
Main problem ongoing lower back pain
Sneezing hurts Sitting and standing hurts
Getting up after sleeping for a while hurts
Pressing brake and accelerator with right leg causes pain
Cold weather worse
Cant exercise due to pain
Sometimes pain catches his breath”
On examination, Dr Khong found a slow measured gait due to back pain. The applicant was able to walk on his heels and toes normally. Neurological examination of the lower limbs showed normal tone, power and reflexes. Sensation was normal bilaterally.
Dr Khong gave the opinion:
“Mr Darious presents with lower back pain after a lifting injury at work. His MRI demonstrates significant degenerative disc disease, worse at L4/5 with Modic end plate changes. He also has degenerative pathology at L3/4. He experienced an exacerbation of these degenerative changes.”
In report dated 23 July 2020, Dr Khong described the applicant’s current symptoms:
“Mr Darious previously worked in Coles pick packing and as a forklift driver for 9 years. He sustained an injury on 4/4/20. He was grabbing a box which started to split. He tried to hold it together and stop it from splitting, and suddenly experienced severe lower back pain "like a knife". He couldn't stand for two weeks due to severe lower back pain and had to crawl around. This pain has persisted. Mr Darious describes midline lower back pain. He also gets some numbness in the posterior left knee and calf. He sometimes gets some numbness in the plantar aspect of the left foot, and occasionally in the dorsal aspect. His main problem is lower back pain. Sitting or standing for moderate periods causes the pain. Getting up after sleeping causes pain. Sneezing causes pain. Even pressing the brake and accelerator with his right leg exacerbates his lower back pain. It has been worse in the cold weather. He cannot exercise due to his pain, and states that the pain sometimes catches his breath.”
Dr Khong noted the history of having hurt his back nine years ago at work but said this had improved on its own. Asked whether the injury with an aggravation or acceleration of a pre-existing condition, Dr Khong stated:
“This injury is an aggravation of a pre-existing condition, though his years of manual labour at Coles may have also caused an acceleration of the degenerative changes. Mr Darious had full capacity prior to this injury.”
Dr Khong recommended physiotherapy and hydrotherapy. The applicant was noted to be unfit for pre-injury duties and unlikely to be fit for such duties for at least three to six months.
On 18 September 2020, Dr Khong noted ongoing lower back pain, mostly central, sometimes to the left, and occasional numbness to the posterior thighs and calves.
An MRI of the left shoulder performed on 9 October 2020 noted a clinical history of persistent left shoulder pain. The report concluded:
“Marked hypertrophic degenerative arthropathy of the AC joint with indentation of the superior supraspinatus tendon. Marked tendinosis of the supraspinatus and subscapularis. Partial-thickness insertional tear of the mid fibres of supraspinatus 3mm. Subacromial bursitis. Features of labral wearing.”

In report dated 19 November 2020, Dr Khong was asked whether the applicant had sustained an injury to his lumbar spine, cervical spine and left shoulder. Dr Khong responded:
“This injury is an aggravation of a pre-existing condition, though his years of manual labour at Coles may have also caused an acceleration of the degenerative changes.
Mr Darious had full capacity prior to this injury.”
Asked for an opinion on the applicant’s capacity, Dr Khong stated:
“Based on all my consultations with Mr Darious, he does not have capacity to work. He complains of severe lower back pain which affects most activities. I note multiple opinions that his back pain in the absence of radiculopathy should not be investigated and that he should return to work. I do not agree with this. MRI demonstrates degenerative disc disease at L3/4 and L4/5, worse at L4/5 with loss of disc hydration but with preservation of disc space height and Modic endplate changes and bilateral lateral recess stenosis. He likely had an exacerbation of these degenerative changes and his back pain persists. Whilst he does not have clear radiculopathy, he may have a component of radicular pain as a result of bilateral L5 compression.”
Dr Khong found the applicant’s incapacity to be the direct result of his work injury.
Orthopaedic surgeon, Dr Gavin Soo, prepared a report dated 23 November 2020. Dr Soo took a history as follows:
“He was at work on the 4th April 2020 when he noticed pain to his neck and back and left shoulder when he caught a heavy box which was falling. He had previously injured the left shoulder at work 3 months before this which he had reported previously to his supervisor. He had treatment with physiotherapy at work and was able to keep working. Since then unfortunately since April his left shoulder pain has been constant.”
Dr Soo considered the MRI of the left shoulder taken on 9 October 2020 and recommended nonsurgical measures including hydrotherapy and a cortisone injection into the left shoulder.
In report dated 10 February 2021, Dr Khong was asked to consider whether the applicant had sustained an injury to his lumbar spine, cervical spine and left shoulder as a result of the nature and conditions of his employment with the respondent. Dr Khong responded:
“I have been seeing Mr Darious for his lumbar spine pain. He has had lower back pain since his injury on 4/4/20. I believe that Mr Darious' work as a store person/ pick packer caused an acceleration of the degenerative changes in his lumbar spine. He also sustained an acute exacerbation of these degenerative changes at the time of his injury when he was carrying a box which started to split. His MRI demonstrates severe degenerative disc disease at L4/5 with Modic endplate changes. He may require a fusion at this level.
Mr Darious also complains of shoulder pain, but I am not reviewing him for this. Mr Darious did not mention his neck pain during our consultations.
I have reviewed his cervical spine MRI. There are some degenerative changes present in the absence of cord or neural compression. If he does complain of significant neck pain, this could be due to his work as a forklift driver which may have accelerated the degenerative changes in his cervical spine as well as causing musculoligamentous strain.”
In a consultation on 12 February 2021, Dr Khong reported that the applicant continued to complain of severe lower back pain radiating down both legs. Dr Khong said the applicant may need a fusion if the pain did not improve. An L4/5 epidural injection had been organised.
On 3 March 2021, another general practitioner at the Workers Doctors, Dr Morgan Mo recorded that the applicant had ongoing neck pain and lower back pain. The applicant had transient benefit from a lumbar injection.
On 9 March 2021, Dr Soo recorded that the applicant had an injection into his shoulder and December 2020 which helped with his pain slightly for a couple of weeks.
At a consultation on 19 March 2021, Dr Khong recorded:
“Has had neck pain since injury
Neck has been worse in the past few days
Midline and to the left Some radiation down medial left arm to elbow
Occasional numbness in the left arm
Persistent lower back pain Left L4/5 epidural injection 22/2/21 - helped 50% for 1 week Occasional radiation down legs”
On 14 May 2021, Dr Khong recorded that the applicant continued to complain of severe lower back pain which was limiting his activities. Dr Khong indicated that he would submit a request for approval for the applicant to undergo an L4/5 anterior lumbar interbody fusion.
A further MRI of the lumbar spine was arranged following a consultation with Dr Khong on 16 July 2021.
Psychologist, Ms Connie Tang prepared a report for the applicant’s solicitors on 6 August 2021. Ms Tang saw the applicant during seven consultations between 17 June 2020 and 19 December 2020. Ms Tang took a history of the event on 4 April 2020 causing severe pain in the applicant’s back. Ms Tang reported:
“Mr Darious noted a deterioration in his mental state directly after the incident at his place of work characterised by anxious and depressive cognitions, passive suicidal ideation, impaired memory and poor concentration, sleep disturbance and rumination due to pain in his back, as well as his concerns regarding future capacity to increase his functional capacity and return to work.”
Ms Tang diagnosed an adjustment disorder with depressed and anxious mood. With regard to the applicant’s capacity for work, Ms Tang stated:
“Mr Darious has memory and concentration deficits as well as anxious distress, anergia from pain and sleep disturbance preventing him from being able to Psychologically perform any work duties.”
Dr Khong prepared a report for the applicant’s solicitors on 13 October 2021 in which he provided an opinion as to the proposed surgery. Dr Khong said the applicant remained unfit to work due to ongoing severe pain.
Dr Soo prepared a report for the applicant’s solicitors on 19 October 2021. Dr Soo took a history of the applicant noticing pain to his neck and back and left shoulder when he caught a heavy box that was falling on 4 April 2020. The applicant had previously injured his left shoulder at work three months earlier. Since then the applicant had experienced constant pain in his left shoulder. Dr Soo made a diagnosis of left shoulder subacromial bursitis and partial tear of the supraspinatus tendon. Dr Soo gave the opinion:
“Yes, in my opinion Jonathon has suffered an injury to the left shoulder as a result of a work place accident on the 4th April 2020. Prior to this he had a suffered a separate work related injury to the left shoulder 3 months before which he had reported to his supervisor but was able to continue working full duties. Unfortunately following the accident on the 4th April 2020 the left shoulder pain worsened and he was unable to continue working.”
Dr Soo expressed disagreement with the opinion of Dr Miniter. Regarding the mechanism of injury, Dr Soo stated:
“Jonathon reports the mechanism of catching a heavy box which was falling as the precipitating event for his injuries. I cannot see any reason why catching a heavy box could NOT cause a shoulder injury. Especially considering Jonathon reported injuring the same shoulder at work only 3 months prior to this. It is more than reasonable to accept that catching a falling heavy box could result in aggravation of a left shoulder injury.”
Dr Soo said the applicant had limited capacity to perform any occupational activity requiring use of the left arm. Employment was said to be a substantial contravening factor to the left shoulder injury and incapacity.

Certificates of capacity

SIRA certificates of capacity issued by various general practitioners at the Workers Doctors are in evidence covering the period 6 April 2020 to 24 December 2021. The applicant has consistently been certified as having no current work capacity for any work in respect of an injury diagnosed as:
“Cervical Spine Radiculopathy; L) Shoulder Strain; Lumbar Spine Radiculopathy. Adjustment disorder.”
The relationship between the injury and work was described as:
“Neck, shoulder and back injuries due to repetitive heavy lifting, bending and twisting at work.”

Pre-injury clinical notes

The material before the Commission includes the clinical notes of other general practitioners consulted by the applicant.
The notes of Dr Thanhtam Nguyen referred to a consultation on 27 August 2016 in which it was noted:
“Moving house few days ago, lifting, having lower back pain, no sciatica symptoms.”
The applicant was advised to treat symptoms with Neurofen and return for review if they worsened.
Previously, on 29 February 2016, Dr Nguyen noted:
“Feeling lower back since yesterday, stiffness, no Hx of acute injury, using topical cream & Panadol but not helped. Hx of back pain b4, had physio & seeing specialist b4”
On 15 May 2015, Dr Nguyen noted:
“Joint pain. Joint stiffness++, Back pain. while sitting in the car, had problem with movement & walking.”
The clinical notes of Wetherill Park Specialist and Medical Centre included a note recorded on 22 January 2020 in which the applicant complained of shoulder pain and chronic back pain. The applicant was referred to physiotherapy.
On 17 December 2019, it was noted:
“Presents with L shoulder pain
was building a kayak for his kids, pulled his shoulder a bit works
with fork lift normally has previously tom same shoulder 0/E: tender over post pain on reaching around to back neurovasc intact Imp, likely tendinosis/partial tear”
On 15 October 2019, the applicant complained of left shoulder pain:
“Pain left shoulder pain since slept on bad pellow last night. lntermitant the same. No arms weaknerss or senrory issues”
The notes of a check up performed on 29 December 2018 stated:
“Neck pain. Back pain. No shoulder pain.”
A note recorded on 15 October 2018 described a flareup of back pain.
On 10 April 2018 a consultation was recorded as follows:
“C/O Right sided middle back pain since yesterday night experienced pain at home, not at work states stretched while going to bed.”
A referral to a physiotherapist, Mr Jamil Qutami, dated 6 September 2017, described complaints of lower back right sided pain with no radiation.
On 6 June 2017, Dr Assem Ahmed recorded:
“C/O; Lower Back pain on& off for long time every winter/ Yesterday Lower Pravertebral muscle spasm IMP: Muscle spasm R/ Maxigesic tab”
On 28 March 2017, Dr Inanch Mehmet recorded:
“L sided low back pain this am. no radiation to legs no numbness woke up with it cut the grass yesterday o/e good rom took voltaren whic helped”
The clinical records of Plus 1 Medical Centre include a number of entries in 2016 and 2017 describing psychological symptoms of depression and anxiety related to work stress.
The clinical records of Ingleburn Medical Centre contain several records in 2013 in relation to a mid lower back strain at work on 4 March 2013, recorded as follows:
“was lifting a box of 6x2L ultrapasteurised milk and turned to put on the pallet> back pain, no prev back pain, oloss of sensation or weakness , work did ice it.”
Tenderness of the paraspinal muscles at the thoracic spine was noted. The applicant was certified as fit for suitable duties.

Dr Gehr

The applicant relies on medicolegal reports prepared by orthopaedic surgeon, Dr Eugene Gehr, dated 6 September 2020, 15 October 2021 and 29 October 2021.
In his first report, Dr Gehr took a detailed history of medical treatment, making reference to the clinical notes of the applicant’s general practitioners and Dr Khong, as well as reports from the respondent’s experts.
Dr Gehr referred to the MRIs of the applicant’s cervical spine and lumbar spine dated 26 June 2020.
Dr Gehr said the applicant had disclosed a past medical history as follows:
“No previous problems with cervical spine, thoracic spine, upper extremities, or lower extremities prior to subject accident. However, he tells me he had a lumbar spine injury at work in 2013 and after a period of restricted duties, he went back to normal work and he recovered.”
The history of injury was recorded as an accident occurring on 4 April 2020 in which the applicant felt immediate lower back pain. The lumbar spine pain went down both legs past the knee. The applicant also reported pain in the left shoulder and dorsal cervical spine.
Dr Gehr noted that the applicant’s duties for the respondent required him to engage in repetitive, heavy lifting, bending and twisting.
The applicant’s current symptoms included pain in the lumbar spine, present all the time, going down both legs. Often the legs felt numb. The applicant reported only a small amount of pain in the neck, especially at night, and pain over left shoulder. The applicant also reported stiffness of the left shoulder and lumbar spine.
On examination, Dr Gehr noted that the applicant walked with a cautious gait and had difficulty standing on toes on heels, inverting or everting.
Dr Gehr gave the opinion:
“This is a 50-year-old man, injured at work on 4/4/2020 with an injury to his lumbar spine, cervical spine, and left shoulder. He had had a previous injury to his lumbar spine in 2013 but from the history provided, it had resolved. From the time of the injury in 2013 up to the time of the subject accident he was working full time.”
Asked for an opinion on the applicant’s capacity for work, Dr Gehr said the applicant had not been able to get back to his pre-injury occupation as a result of the accident. It was unlikely that the applicant would be able to do so. Further,
“Given his age, educational background, previous work experience, unlikely to be suitable for other occupations.”
In his second report, Dr Gehr noted that the applicant disclosed periods of low back pain and saw his general practitioner on many occasions. The applicant did, however, continue to work, never saw a specialist and there had been no consideration given to surgery during that period of time.
The applicant reported that Dr Khong had now recommended surgery. The applicant had a cortisone injection in his back which did not provide much benefit. The applicant reported symptoms of pain in the lumbar spine present all the time, radiating down both legs which felt numb. The applicant reported only a small amount of pain in the neck especially at night. The applicant also had pain over the left shoulder. The applicant described his symptoms as deteriorating.
Dr Gehr noted that the applicant walked with an unsteady gait using a stick in the right hand. On examination, the applicant had difficulty standing on toes, on heels, inverting and everting. The applicant was not able to squat. Dr Gehr found the applicant to be cooperative with no pain behaviours, exaggerations or embellishments. Dr Gehr found evidence of spasm, dysmetria and decreased sensation at L5/S1 on the right side. Dr Gehr also found evidence of rotator cuff muscle wasting and markedly reduced range of motion of the left shoulder.
Dr Gehr gave the opinion:
“It is my opinion that his employment with Coles Group Supply Chain was the cause of his subject accident and the injuries outlined. He did have pre-existing lumbar spine pain but had not caused him to not continue working.”
With regard to capacity, Dr Gehr stated that the applicant was not fit to return to his pre-injury occupation.
In his final report, Dr Gehr confirmed that in his previous reports he had made diagnoses at the lumbar spine, cervical spine and left shoulder resulting from an injury at work on 4 April 2020. Dr Gehr said he made no reference to the nature and conditions of employment being causative.

Dr Rastogi

Consultant psychiatrist, Dr Richa Rastogi, prepared a medicolegal report for the applicant’s solicitors dated 17 November 2020.
Dr Rastogi took a history of the applicant injuring his neck, left shoulder and lower back whilst at work on “4^th March 2020”. The applicant reported persisting back pain with radicular symptoms and left shoulder pain with stiffness. The applicant reported that his pain had worsened over time and had significantly impacted his functioning.
The applicant reported no known previous history of depression or anxiety. Dr Rastogi took a medical history of the back injury in 2013, following which the applicant made a full recovery.
The applicant was noted to walk with a mild antalgic gait. The applicant described his mood as depressed and frustrated. The applicant’s affect was restricted and anxious. The applicant’s DASS21 scores on the day of examination were extremely severe for depression, anxiety and stress.
Dr Rastogi diagnosed an adjustment disorder with depressed mood secondary to pain and limited functioning as well as financial stressors. The psychological injury was related to the physical injury on 4 April 2020.
With regard to the applicant’s capacity for work, Dr Rastogi gave the opinion:
“The client is unfit to work in any capacity now and in future has limited vocational opportunities due to persistence of pain, functional disability and psychological sequalae.”

Associate Professor Miniter

The respondent relies on medicolegal reports prepared by orthopaedic surgeon A/Prof Paul Miniter dated 24 April 2020 and 6 May 2020.
Associate Professor Miniter took a history of the applicant picking up a box and feeling some back pain acutely three weeks earlier. There had been no leg pain and no disturbance of lateral bowel function. The applicant was managing poorly and had attended a physiotherapist twice who he felt was making matters more troublesome.
Associate Professor Miniter gave the opinion that the applicant had been inappropriately assessed as being unfit to return to work by Dr Lim. A/Prof Miniter noted that Dr Lim had certified the applicant as having a multitude of musculoskeletal problems which were not able to be identified either by historical evaluation or on clinical assessment. A/Prof Miniter considered that Dr Lim’s recommendations for MRI of the cervical and lumbar spine and referral to a spinal surgeon were difficult to understand. A/Prof Miniter said:
“They fly in the face of all sensible recommendations at an International level. The management of back pain, noting that Mr Darious has no neck pain, is not to involve a Spinal Surgeon, not to proceed to investigations of any description, unless there is radiculopathy or cauda equina compression, and in general terms, not to take workers away from the workplace. Mr Darious should be advised that returning to work is the plan, and that he should be immediately returning to work in a light duties capacity.”
Associate Professor Miniter recorded his physical examination as follows:
“He came in today using a stick in his right hand. I asked him why this was the case, and he told that me he needed it to support himself. There were a number of non-physical signs, including the whole body rotation test and the axial compression test. Asking him to bend forwards and touch his toes, he demonstrated barely 20 ° of forward flexion at the lumbosacral junction. There was no evidence of deformity or sagittal imbalance. The straight leg raising manoeuvre is normal and he has diffuse lumbar spinal discomfort which has no localising features. The reflexes in the lower limbs are intact, though depressed from normal. There are no sensory changes and there is certainly no muscular weakness. He found it difficult to stand on his heels and toes in a bizarre gait pattern.”
Associate Professor Miniter said he could identify no evidence of serious injury. A diagnosis of acute lower back pain was given but it was not a serious problem. A/Prof Miniter accepted that employment with the respondent was a substantial contributing factor.
Associate Professor Miniter reported that the applicant had no prior history of any symptoms relating to his back of a similar nature.
With regard to the applicant’s capacity for work, A/Prof Miniter stated:
“He is not fit for pre-injury duties for another 2 weeks whilst he rehabilitates himself.
I do believe that he can work his normal hours. I see no reason for him not to be able to gain access to his employment, and I would strongly advise suitable duties at this stage.”

In his supplementary report of 6 May 2020, A/Prof Miniter said he had been provided with further information and stated:
“I note the lack of consistency between the alleged beginning of the shift and the episode that seems to have caused the back issues. You note that when I reviewed this gentleman, I felt that there was no indication for this man to be either away from work or subject to further investigation.
The information that you have sent me simply amplifies my concerns. In my opinion, there is no reason for him to have been regarded as unfit for work and there is scant evidence to suggest that he has had an injury. If there has been any injury, it has been only mild at best and should not be regarded as a serious issue.”

Dr Kafataris

The applicant was seen by injury management consultant, Dr Con Kafataris on 10 June 2020. Dr Kafataris recorded a mechanism of injury as follows:
“The worker states that he developed his injury when lifting a box of detergent out of a cage at work. He states that this was on a lower level and the box was broken with some bottles falling out of the box. As he lifted it, he tried to save these bottles and in doing so rotated to the left. He felt lower back pain. The worker stated that at the time of the injury he reported only lower back pain and states that he then developed neck and shoulder pain three days later at home.
Some thirty minutes later the worker then amended his history and stated that as he lifted this box and rotated to the side, he fell to the left and broke his fall and put his left hand out to stop his fall. It must be emphasised that this was a later amendment to the worker’s history.”
Dr Kafataris recorded that the applicant reported that his neck pain had now settled and he had no neck pain. The applicant continued to complain of pain in his lumbar spine and left shoulder. The applicant complained of constant left-sided lower back pain with no radiation. Although the applicant described intermittent numbness, Dr Kafataris did not gain the impression that there was true radiculopathy. The applicant reported that he was able to walk for periods of up to 30 minutes and sat for at least 30 minutes during the examination.
Dr Kafataris noted:
“He states that he will walk around the block for up to thirty minutes at a time and he does these three to four times a day. His main hobby is swimming, but he has not done this because of the COVID-19 pandemic.”
Dr Kafataris noted that Dr Lim had recommended an MRI scan and had apparently recommended that the applicant “go get a lawyer and push it”.
The applicant described constant lateral and left shoulder pain. There was no radiation or neurological symptoms in the upper limb.
During examination the applicant’s gait was described as unremarkable with no evidence of a limp or other disability.
In a case conference with the applicant’s general practitioner, Dr Kafataris said he had suggested that the applicant was fit for suitable duties of a sedentary nature with restrictions. The treating doctor did not agree, expressing the view that the applicant was completely unfit for work.
Dr Kafataris gave the following opinion with regard to capacity for work:
“The worker is fit for suitable duties at present and I can see no reason why he requires an hour’s restriction. The worker would be fit for 8 hours/day, 5 days/week of suitable duties that did not involve heavier manual handling. Given his combined back and shoulder injuries, a 5kg lifting restriction is reasonable and he should avoid lifting more than 2kg with the left upper limb. The worker should work at waist height and below with respect to his lumbar spine injury and should change position every twenty minutes to avoid static sitting. For the left upper limb, he should also avoid any duties that require repeated push or pull with the left upper limb and he should work at below chest height. Within these restrictions there is no reason why the worker could not work a full shift of suitable duties.”
Dr Kafataris noted that the applicant’s neck pain had resolved completely.

Dr Roberts

The respondent relies on a medicolegal report prepared by psychiatrist, Dr John Albert Roberts, dated 10 August 2020.
Dr Roberts reported that he had asked the applicant about his physical health. The applicant made reference to experiencing pain in his back, left shoulder and neck but commented that his neck was a bit better.
Dr Roberts said that he had asked the applicant as to whether he had attended upon a psychiatrist or psychologist in relation to this matter. The applicant said he had been referred to a person who may have been a psychologist or psychiatrist who indicated he would call back but never did.
With regard to the applicant’s symptoms, Dr Roberts commented:
“Mr Darious displays no evidence of symptomatology that would permit the diagnosis of a condition of heightened anxiety of inappropriate degree and therefore no reactive state arising as a result of this matter, or anything else can be diagnosed in him.”
The applicant was said to have denied having any problems with being nervous, tense, anxious or depressed. The applicant commented only that he was stressed financially. The applicant was reported to have stated that it would be incorrect to say he had a mental or nervous illness, disorder, condition or problem.
Dr Roberts said that he asked the applicant about the incident on 4 April 2020:
“When questioned in this regard Mr Darious stated that he was picking boxes that he twisted the boxes to put them in what he referred to as a cage and experienced pain; that he stopped work and fell down on the floor as a result. Mr Darious stated that he attended First Aid that he rang his manager and reported the incident; that he felt he would be "good". Mr Darious stated that he went home and could not walk for three weeks. When questioned in regard to how he managed to get to the toilet for that period of time he stated that he had to "crawl" to the toilet. In regard to his treating doctors, Mr Darious made reference to him having asked a friend for a doctor and that this friend recommended Dr Lim.”
The applicant was reported to have said he no longer needed a walking stick. The applicant commented that his back pain was getting better and better. Dr Roberts said:
“Mr Darious commented that Coles had offered him light duties but that Dr Lim had indicated that he cannot drive or twist; that Dr Lim had said that he should not accept the offer of light duties but he still needed treatment. I questioned Mr Darious as to whether there was anything else he wished to add to his account and he replied in the negative but then repeated that he was financially stressed.”
Dr Roberts gave the opinion:
“In terms of my speciality Mr Jonathon Darious has no symptomatology of heightened anxiety of inappropriate degree and no reactive state can be diagnosed in him, namely there is no basis on which to diagnose a psychiatric/psychological injury either related or unrelated to the injury of 4 April 2020.”
With regard to fitness for work, Dr Roberts gave the opinion that there was no psychiatric condition present and therefore no psychiatric/psychological factors operative in the consideration of the applicant’s capacity for work. The applicant was fit to undertake all duties without restriction in terms of his psychiatric status.

Applicant’s submissions

The applicant relied on an injury due to the nature and conditions of his employment and asserted that the events of 4 April 2020 formed part of the nature and conditions injury.
The applicant referred to his statement evidence and the description of the nature of his employment therein. The applicant’s work involved repetitive, heavy lifting, bending and carrying and other strenuous tasks associated with picking and packing. The applicant submitted that there was no dispute as to the nature of his employment tasks and duties.
The applicant described pallets stacked 10 high, requiring him to look up and down, putting pressure on his shoulder and neck. There was an obvious mechanism of injury for the neck.
The applicant described boxes which were unstable and items falling out. The applicant would have to bend to pick them up.
The event on 4 April 2020 was accepted as giving rise to an injury to the applicant’s lumbar spine. That episode did not differ in a material way to many of the activities arising in the course of the applicant’s employment and so formed part of the nature and conditions of his employment.
The applicant referred to the claim form completed on 4 April 2020 and noted that an injury to the lower back and left shoulder was described.
At the initial consultation with Dr Lim on 8 April 2020, the applicant described injuries to his neck, shoulder and back. Those injuries were recorded as being due to repetitive heavy lifting, bending and twisting at work.
It was noted that WorkCover certificates issued by various general practitioners at the same practice all certified the applicant as having no current work capacity due to an injury to the cervical spine, left shoulder and lumbar spine. The applicant also relied on a consequential psychological condition.
The applicant referred to the reports of Dr Gehr. In his first report, Dr Gehr took a history of the applicant experiencing pain in the lumbar spine going down both legs, pain over the left shoulder and pain over the dorsal cervical spine. Dr Gehr gave the opinion that the applicant was not able to get back to his pre-injury occupation. Given his age, educational background, previous work experience it was unlikely that the applicant would be suitable for other occupations. The applicant submitted that no opinion had been provided as to any real job that would be suitable for the applicant.
The applicant noted that the MRIs of the cervical and lumbar spine performed on 26 June 2020 showed mild multilevel diffuse disc bulges at C3/4, C/5 and C5/C6. There were also diffuse disc bulges at L3/4 and L4/5. The scan was reported to also show facet joint arthritis bilaterally at L3/4 and L5/S1 and narrowing of the inferior exit foramina bilaterally at L3/4 and L4/5.
An MRI of the of the left shoulder noted a clinical history of persistent left shoulder pain. Pathology including marked hypertrophic degenerative arthropathy of the AC joint; marked tendinosis of the supraspinatus and subscapularis; a partial thickness insertional tear of the supraspinatus; subacromial bursitis and labral wearing, was reported to have been found.
A report from Dr Khong, dated 22 July 2020, took a history of the applicant working as a pick packer and forklift driver for nine years as well as the incident on 4 April 2020. Dr Khong referred to the MRI findings and gave the opinion that there was an injury to the lumbar spine consisting of an aggravation of a pre-existing condition. Dr Khong also gave the opinion that years of manual labour may have accelerated the degenerative changes. Dr Khong noted that the applicant worked at full capacity prior to the injury but was subsequently unable to work due to his severe lower back pain.
The applicant submitted that the respondent had failed to acknowledge his obvious incapacity, basing its stance upon the report of Dr Miniter.
On 18 September 2020, Dr Khong noted that the applicant continued to complain of lower back pain and occasional bilateral leg symptoms. A fusion at L4/5 and possibly L3/4 was flagged if nonoperative measures failed.
In the report of 19 November 2020, Dr Khong again expressed the opinion that the applicant sustained a lumbar spine injury as a result of his work with the respondent. Although
Dr Khong noted that the applicant did not mention neck pain and he had not assessed shoulder pain, the applicant had only consulted Dr Khong in relation to his lumbar spine.
In his report of 10 February 2021, Dr Khong noted pathology shown on MRI of the cervical spine and gave the opinion that if the applicant did complain of significant neck pain it could be due to his work as a forklift driver which may have accelerated the degenerative changes in his cervical spine.
It was submitted that Dr Khong had greater knowledge of the applicant’s back condition than any other doctor involved in the matter.
The applicant consulted Dr Soo in relation to his left shoulder. Dr Soo took a history of injury at work on 4 April 2020 to the neck, back and left shoulder. Dr Soo noted the previous injury to the left shoulder three months prior, which had been reported. The applicant had received treatment with physiotherapy and had been able to keep working. Since April, the pain in the left shoulder had been constant.
Dr Soo was noted to have addressed the respondent’s evidence in his most recent report to the applicant’s solicitors.
With regard to the secondary psychological condition, the applicant referred to the reports of his psychologist, Ms Connie Tang. Ms Tang had seen the applicant for seven consultations and had been able to form a clear view.
Dr Rastogi referred to the applicant’s physical symptoms and the applicant’s report of pain worsening over time. This had significantly affected the applicant’s functioning and he was now unfit to work in any capacity due to the persistence of his pain, functional disability and psychological sequelae.
The opinions of A/Prof Miniter were contrasted with the views of every other doctor involved in the applicant’s case. Associate Professor Miniter’s opinions were provided without reference to the radiological investigations and reports from the applicant’s treating doctors. No explanation had been provided for his opinions and those opinions were given without any understanding of the actual pathology or the nature and conditions of the applicant’s employment.
The applicant referred to the report of Dr Roberts and his finding that there was no objective evidence of a psychological condition. That opinion was said to be inconsistent with
Ms Tang’s treatment of the applicant.
The applicant submitted that there was an overwhelming body of evidence indicating ongoing incapacity due to the applicant’s physical conditions. There was an additional psychological basis of the applicant’s incapacity. Dr Roberts’ opinion was inexplicable and premised on there being no complaints of psychological symptoms at all.
Having regard to the applicant’s evidence of physical and psychological incapacity, the applicant submitted that the Commission would be satisfied that the applicant had no capacity for work at all and would make an order for weekly compensation pursuant to s 37 on the basis of no current capacity. A general order pursuant to s 60 was sought.

Respondent’s submissions

The respondent noted that the allegations of injury to the cervical spine and left shoulder had been disputed. Although Dr Lim had provided an opinion that there was an injury on 4 April 2020, he described the cause as repetitive heavy lifting at work.
Dr Lim’s opinion was said to be inconsistent with the earlier material and the history given to the applicant’s other doctors. It was noted that the claim form was not completed until after Dr Lim was seen. Dr Lim did not appear to have been given any history of prior issues in relation to the relevant body parts. The assertion that the conditions at those body parts was due to the nature and conditions of employment was described as a bald statement without justification.
The respondent noted that the initial notification of injury, set out in the Team Member Statement of Injury completed on 4 April 2020, referred to a lower back strain only. The applicant was noted to have verbally advised the insurer on 9 April 2020 that he had twisted his back and felt pain in the lower back only. In an initial phone conversation with the case manager, the applicant reported the pain in left shoulder and neck started two to three days after leaving employment. A fall on the left side was not reported to the employer or to the insurer. The reporting of injury was therefore inconsistent.
Associate Professor Miniter accepted that the applicant had sustained a back injury but found no issue in relation to the neck or shoulder. Dr Kafataris also took a history of the applicant stating that at the time of the injury he reported only lower back pain. The applicant developed neck and shoulder pain three days later at home. No neck pain was reported at the time of Dr Kafataris’ examination.
Dr Lim was noted to have taken a history of a specific event on 4 April 2020. The respondent submitted that it was unusual that the applicant would wait until the following Wednesday to see a doctor he had never seen before if that was the case. The applicant had seen a number of doctors over the years to treat various ailments including previous work injuries.
The respondent referred to the clinical notes of Dr Nguyen. The applicant had reported chronic lower back pain on number of occasions and had been prescribed a significant level of analgesic medication including Tramadol and Anaprox. The applicant reported lower back pain when moving house in 2016.
The applicant consulted doctors at Wetherill Park Medical Centre for various issues. On 22 January 2020, it was noted that the applicant had shoulder pain and chronic back pain. A referral for physiotherapy was given. The applicant was seen under Medicare not WorkCover.
On 17 December 2019, the applicant had presented with left shoulder pain following building a kayak for his kids. The applicant was noted to have previously torn the same shoulder. The applicant was referred for an ultrasound.
On 15 October 2019, the applicant reported left shoulder pain after sleeping on a bad pillow the previous night. The pain was reported to be intermittent. Physiotherapy and Voltaren were recommended.
A flareup of back pain was noted on 15 October 2019.
On 10 April 2018 the applicant reported right sided middle back pain since the previous night. The pain was reported to have been experienced at home, stretching while going to bed, not at work.
In 2017, the applicant reported lower back pain on and off for a long time every winter.
The applicant also reported back symptoms to doctors at the Ingleburn Medical Centre.
The respondent submitted that the evidence established that the applicant had been receiving care and attention from local doctors in his area. Previous work injuries had been dealt with appropriately by those doctors. It was unusual that following the 4 April 2020 incident the applicant waited four days before seeing a doctor he had never seen before and gave a different history. The applicant’s previous treating doctors had managed to get the applicant back to suitable work. Dr Lim, on the other hand, recorded an inaccurate history and asserted complaints to multiple body parts not previously complained of.
The respondent submitted that the applicant’s statement read like a legal submission rather than a factual account. The evidence in that statement was inconsistent with the account given by the applicant previously.
The applicant’s statement made no mention of an injury to the applicant’s shoulder although it referred to the applicant leaning on to the left shoulder. Injury to the applicant’s neck was recorded by Dr Lim and no one else.
The respondent noted that no mention of symptoms at the neck or shoulder had been reported to the applicant’s neurosurgeon, Dr Khong. The applicant sought to explain this by reference to being funded only in respect of the lumbar spine injury. The respondent submitted that that explanation was disingenuous. The applicant had been referred to
Dr Khong in relation to neck pain as well as back pain.
Although Dr Khong suggested that neck pain could be related to the applicant’s previous work, there was no evidence of that.
The respondent noted that in the initial report from Dr Khong, a past medical history of “Nil” was recorded. That history was plainly incorrect.
The respondent noted that the applicant was seen by Dr Soo in relation to shoulder pain.
Dr Soo took a history not taken by any other doctor of neck, back and left shoulder pain in the incident on 4 April 2020. The other evidence suggested a subsequent onset of symptoms several days later.

It was not apparent that Dr Soo was aware of the previous treating records where complaints of non-work-related shoulder symptoms, a previous shoulder tear and referral for ultrasound were recorded.
Inconsistently with the original history of injury, Dr Soo later recorded that the applicant was seen in relation to ongoing left shoulder pain as a result of the nature of his job. The respondent submitted that there had only been one prior episode of shoulder pain at work.
The respondent submitted that the Commission would not be satisfied that there was a frank injury or nature and conditions injury to the neck or left shoulder based on the contemporaneous evidence.
With regard to the adjustment disorder, the respondent submitted that Dr Rastogi took a different history of the onset of symptoms. It was unclear how the applicant’s pain had worsened if he remained off work and was only taking medication occasionally.
The respondent submitted that symptoms of depression had been recorded in the previous general practitioner’s notes. No history of previous symptoms had been recorded by
Dr Rastogi. It was noted that the applicant had denied psychological symptoms according to the report of Dr Roberts. The respondent submitted that the applicant’s DASS score was subjective and flew in the face of the previous history.
The respondent submitted that the applicant’s presentation to A/Prof Miniter was inconsistent with his presentation to Dr Khong. The applicant was using a walking stick whereas
Dr Khong reported the applicant was able to walk independently. There were numerous Waddell’s signs. For example, straight leg raising was normal despite using a walking stick.
The respondent noted that the history taken by Dr Kafataris of experiencing low back pain in the event on 4 April 2020 and developing neck and shoulder pain three days later at home was consistent with what was recorded by the insurer’s case manager.
Dr Kafataris noted that the applicant had said Dr Lim had recommended that the applicant go get a lawyer and push things. Dr Kafataris examined the applicant’s gait and it was noted to be unremarkable with no evidence of a limp or other disability. The applicant’s presentation was inconsistent with his presentation to A/Prof Miniter. The applicant was reported to be walking 30 minutes, three to four times a day, clearly demonstrating a capacity to do things.
The respondent noted that the applicant had reported to Dr Roberts that his neck was feeling better. The applicant referred to lower back pain on the left and pain involving his left shoulder but no other physical complaints. The applicant reported that his back pain was getting better and better. The respondent had offered the applicant light duties but Dr Lim had said that he should not accept the offer of light duties.
Dr Roberts found no evidence of abnormality in mood or effect. This correlated with the denial by the applicant of any symptomology consistent with the presence of a reactive state.
The respondent noted that the applicant had agreed to a recovery plan with his physiotherapist, Mr Lam.
The respondent noted that Dr Gehr took no history of the nature and conditions injury but only a frank episode on 4 April 2020. Dr Gehr only gave the opinion that the applicant was unable to get back to his pre-injury occupation.
The respondent submitted that the work capacity decision was valid and appropriate and should stand.

Applicant in reply

The applicant submitted that the respondent’s submissions failed to address the applicant’s evidence as to the nature and conditions of his employment. The applicant had provided uncontradicted evidence of significant physical stresses on the whole of his body. That evidence should not be ignored. The occasional inconsistencies identified by the respondent were said to be immaterial. The foundation of the applicant’s case was clear and as a matter of commonsense, the Commission would expect that the repetitive heavy work described by the applicant would take its toll.
With regard to the clinical notes preceding the applicant’s attendance on Dr Lim, the applicant submitted that the respondent had given the impression that there were numerous presentations. It was noted, however, that the applicant worked for Coles over a 10 year period. The complaints of back pain were within the period of employment with the respondent. The absence of any WorkCover certificate did not equate to the symptoms not being work-related. Caution ought to be exercised having regard to those clinical notes.
The applicant submitted that the applicant’s work was of a kind which inevitably caused injury similar to that encountered week to week in the Commission.
The applicant relied on the nature and conditions of his employment and submitted that the day-to-day stresses of those activities would have caused injury in addition to the specific episode on 4 April 2020 which was the straw that broke the camel’s back. The event on 4 April 2020 involved the kind of work the applicant had done over a 10 year period.
The applicant submitted that Dr Lim was a general practitioner specialising in work injuries which was why workers consulted him. The applicant did not rely solely on Dr Lim but had been referred to a number of doctors. Dr Lim was an expert in work injuries and had provided a diagnosis.
The applicant submitted that the four day delay in consulting Dr Lim was not suspicious or intriguing. It was not uncommon for workers to not seek medical attention immediately. The delay was not excessive and there was no suggestion of any intervening event.
The history first taken by Dr Lim was of an injury due to repetitive heavy lifting, bending and twisting at work. There was no evidence that these activities would not cause the types of injuries claimed.
Dr Khong accepted that there had been exacerbation of degenerative changes. There was no reason not to accept the findings of the applicant’s treating surgeon. Dr Soo was also satisfied that the applicant’s shoulder condition was work-related.
With regard to the applicant psychological symptoms, the applicant’s presentation was noted to fluctuate, which could account for the different presentations.

FINDINGS AND REASONS

Section 9 of the Workers Compensation Act 1987 (1987 Act) provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[1], where Kirby P said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[1] (1994) 10 NSWCCR 796 at [810].
His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
It is the applicant who bears the onus of establishing on the balance of probabilities that he has sustained the injuries alleged. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[2] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[2] [2008] NSWCA 246.
It is not in dispute in these proceedings that the applicant sustained an injury to his lumbar spine in the course of his employment with the respondent on 4 April 2020. The ongoing effects of that injury are, however, in dispute. It has also been disputed that the applicant sustained an injury to his cervical spine and left shoulder in the same event.
In these proceedings, the applicant has additionally alleged that he has sustained injury to the same body parts as a result of the general nature and conditions of his employment with the respondent, which incorporated the event on 4 April 2020.
Although the applicant submits that the event on 4 April 2020 was no different to numerous events encountered by the applicant in the course of performing his ordinary duties, I am not satisfied on the evidence before me that those events or duties were, over time, causative of an injury to the applicant’s cervical spine, lumbar spine and left shoulder.
The treating medical evidence prior to 4 April 2020 indicates that the applicant had previously reported symptoms and sought medical treatment in relation to each of the relevant body parts. There was a documented work injury involving the mid lower back in 2013 when the applicant was lifting a box of milk and turned to put it on a pallet. That injury appears to have been diagnosed as a mid lower back strain. The evidence of Ingleburn Medical Centre suggests that symptoms were predominantly experienced around the paraspinal muscles at the thoracic spine and particularly on the right side. The applicant managed to continue on suitable duties and returned to pre-injury duties. The event in 2013 therefore appears to have resolved relatively quickly and to have involved pathology around the spine distinguishable from the lumbar pathology for which the applicant has been treated by Dr Khong since the event on 4 April 2020.
The clinical records reveal other complaints of pain in the lower back from 2015 onwards. Although I accept that in this period the applicant was employed by the respondent, the clinical records do not suggest that the symptoms were associated with the nature and conditions of that employment.
In 2015, for example, Dr Nguyen noted back pain while sitting in a car. Idiopathic lower back pain felt since the previous day was reported to Dr Nguyen in February 2016. In August 2016, Dr Nguyen noted that the applicant had been having lower back pain after lifting whilst moving house a few days earlier. In March 2017, Dr Mehmet recorded that the applicant woke up with lower back pain after cutting the grass the previous day. In June 2017,
Dr Ahmed recorded that the applicant had been experiencing lower back pain on and off for a very long time every winter. In April 2018, the applicant reported right sided middle back pain at home while stretching going to bed. Chronic back pain, not noted to be related to the applicant’s employment was described in a referral to physiotherapy in January 2020.
Neck pain was described in the notes of a general check up performed in December 2018.
There is also evidence of left shoulder pain related to events outside of work in a clinical note in October 2019 after sleeping on a bad pillow the previous night. On 17 December 2019, it was noted that the applicant presented with left shoulder pain after pulling his shoulder whilst building a kayak. It was noted that the same shoulder had previously been torn.
The applicant’s evidence is that he did sustain an injury to the left shoulder at work about three to six months prior to the incident on 4 April 2020 whilst removing plastic from a pallet. The applicant said he consulted a local doctor and was advised to rest and take Voltaren.
Dr Soo took a history of the same injury but said that with treatment through physiotherapy, the applicant was able to keep working full duties. Dr Soo described this as a separate and distinct injury and said that, since the event on 4 April 2020, the applicant had experienced constant, incapacitating pain.
The applicant’s case for a nature and conditions injury relies heavily on his uncontradicted evidence of significant physical stresses on his body due to the nature and conditions of his employment. The applicant’s evidence does, however, form only one part of the body of evidence before the Commission and must be weighed together with the medical evidence before me.
In Department of Education and Training v Ireland [91] President, Keating J found:
“… the Arbitrator wrongly directed himself that the matter could be decided based on the credit of Ms Ireland alone. The task before the Arbitrator was to weigh the evidence of Ms Ireland together with other objective evidence, or the absence of it. The Arbitrator erred in failing to give due weight to Ms Ireland’s failure to make any report of injury to her back on the day of the accident. The absence of any documentary evidence from Dr Epps or Dr Baker to support any complaints of back pain, either contemporaneous to the accident or at least at intervals during the period between the accident and when it was first reported to Dr Wallace, is a significant omission in Ms Ireland’s case.”
The first medical evidence of an injury due to the nature and conditions of employment before me is the evidence from the applicant’s general practitioners at the Workers Doctors. On 8 April 2020, Dr Lim took a history of neck, shoulder and back injuries due to repetitive heavy lifting, bending and twisting at work. That history has been repeated in the clinical records, reports, letters of referral and certificates of capacity issued by doctors at that same practice over time.
That history did not account for the acute onset of symptoms reported contemporaneously in the lumbar spine in the particular event on 4 April 2020. Nor is it apparent that at any time the general practitioners at that practice had been made aware of or accounted for the history of complaints at the back, neck and left shoulder in contexts unrelated to work, recorded in the clinical records of the other medical practices attended by the applicant.
Both Dr Khong and Dr Soo have attributed the applicant’s current presentation to the event on 4 April 2020. Although Dr Khong expressed the view that the applicant’s strenuous manual work could have aggravated degenerative pathology at the lumbar spine and cervical spine, it is not apparent that Dr Khong was given the history of complaints of symptoms at those body parts prior to 4 April 2020 revealed in the clinical notes of the applicant’s pre-injury general practitioners. I am not satisfied that Dr Khong has expressed a reliable opinion that an injury causing incapacity had been sustained which was causally related to the general nature and conditions of the applicant’s work. It is notable that both specialists have observed that prior to the event on 4 April 2020 the applicant had capacity to perform his full pre-injury duties.
The applicant’s medicolegal expert, Dr Gehr, was specifically asked whether the applicant’s injuries were due to the nature and conditions of his employment with the respondent.
Dr Gehr did note that the applicant’s duties for the respondent required him to engage in repetitive, heavy lifting, bending and twisting. As is made clear in Dr Gehr’s most recent report, however, he did not attribute the applicant’s injuries to the nature and conditions of employment but rather the event at work on 4 April 2020.
The respondent’s medicolegal expert, A/Prof Miniter, found no historical or clinical basis for accepting the opinion expressed by Dr Lim that the applicant had injuries at the cervical spine, lumbar spine and left shoulder due to the nature and conditions of employment. A/Prof Miniter was, however, satisfied that there had been an injury to the lumbar spine in the event on 4 April 2020.
It is notable also that the history reported by the applicant to Dr Gehr and A/Prof Miniter, as well as Dr Kafataris, Dr Rastogi and Dr Roberts, was not of a gradual onset of symptoms due to the performance of the applicant’s ordinary duties but rather an acute onset of symptoms in an event at work on 4 April 2020.
I accept that the applicant’s duties for the respondent involved repetitive heavy lifting, bending and twisting, reaching above shoulder height, as well as using a forklift which required him to look up. I also accept, consistently with the comments of Dr Khong, that the performance of such duties over a period of many years had the potential to aggravate degenerative pathology at the applicant’s cervical spine, lumbar spine and left shoulder. Weighing all of the evidence, I am not, however, satisfied on the balance of probabilities that an injury has in fact been sustained at those body parts by that mechanism for the purposes of ss 4(a) or (b).
It remains to be determined whether the applicant sustained an injury to his cervical spine and left shoulder in the event on 4 April 2020.
There are some inconsistencies in the reporting of that event by the applicant. The first notice of injury in the form completed by the applicant on 4 April 2020 suggested that the applicant sustained only an injury to his lower back whilst bending down picking up boxes of detergent. There was no suggestion in that form of any fall or impact on the left arm or shoulder. Nor was there any suggestion of involvement of the applicant’s neck.
In the claim form completed on 9 April 2020, the applicant described stacking boxes in a cage when one of the boxes fell loose and the applicant lost his grip. The applicant described an injury to the lower left back and left shoulder but not the neck.

The account in the claim form is consistent with the history recorded by a physiotherapist,
Mr Li, on 9 April 2020. Mr Li recorded complaints in the lower back, left leg and left shoulder but not the neck after picking up boxes from the floor.
Although, on the same date, Dr Lim did take a history of neck symptoms, he did not attribute them to the particular event on 4 April 2020. Investigation of the cervical spine by MRI at the request of Dr Lim revealed multilevel pathology without disc protrusion or central canal or foraminal stenosis. This pathology has, however, been described by Dr Khong as degenerative and, as noted above, general complaints of neck pain had been recorded in the notes of the applicant’s general practitioners previously.
No symptoms at the neck were reported initially to Dr Khong despite the referral from the Workers Doctors describing persistent pain at the neck. Dr Khong’s evidence does not indicate that the applicant reported any neck symptoms or received any treatment for neck symptoms until March 2021 when the applicant reported that he had neck pain since the injury but his neck had been worse in the past few days.
The history recorded by A/Prof Miniter in his first report on 24 April 2020 was of acute back pain three weeks earlier. A/Prof Miniter found no evidence of any injury to the neck or shoulder as recorded by Dr Lim.
The contemporaneous evidence from the insurer’s case manager is that the applicant initially disclosed only an acute onset of symptoms in the lumbar spine. The applicant is said to have disclosed that symptoms in the left leg and left shoulder then developed two to three days later.
A similar account was provided to Dr Kafataris, who saw the applicant in June 2020.
Dr Kafataris noted, however, that 30 minutes into his examination, the applicant amended the history stating that at as he lifted a box and rotated to the side he fell to the left and broke his fall by putting out his left hand.
The history given to Dr Gehr in September 2020 was of an onset of symptoms in the left shoulder and cervical spine at the time of the accident on 4 April 2020. Dr Roberts in August 2020 and Dr Rastogi in November 2020 were also both given a history of injury to the neck and left shoulder in the event on 4 April 2020. Dr Roberts was also given the account of the applicant falling down on the floor as a result of the pain in his back in that event.
Dr Soo also saw the applicant in November 2020, however, did not take a history that involved the applicant falling. Rather the applicant described pain to his neck and back and left shoulder when he caught a heavy box which was falling. In his most recent report for the applicant’s solicitors, Dr Soo described the mechanism as catching a heavy box which was falling as the precipitating event for the injuries. This mechanism is broadly consistent with what was described in the claim form and the notes of Mr Li.
The statement evidence of the applicant, prepared in September 2021, was that he fell onto his left side and lay on the floor leaning on to the left shoulder to relieve pain felt in his lower back.
This analysis of the evidence therefore reveals inconsistencies in the applicant’s reporting of whether there was an immediate onset of symptoms in the neck and shoulder, or an onset two to three days later. There are also inconsistencies in the reported mechanism of injury having regard to whether the applicant fell, and whether he broke his fall by putting out his left hand or fell onto his side, leaning onto the left shoulder.
In Onassis v Vergottis[3], Lord Pearce commented upon what is often recollected and said by witnesses, after an event, as opposed to what is contemporaneously recorded in documents at the time of the event, in the following terms:
"Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on the balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."
[3] (1968) 2 Lloyds Report 403.
The most contemporaneous accounts of the injury in this case suggest that the event on 4 April 2020 did not involve any sort of fall and only gave rise to acute symptoms in lumbar spine, with symptoms in the neck and left shoulder being reported several days later.
As noted above, Dr Lim did not attribute symptoms in the neck and left shoulder to the event on 4 April 2020 but rather repetitive heavy lifting, bending and twisting when he first saw the applicant. There are, however, relatively contemporaneous accounts of an acute injury to the left shoulder in the event on 4 April 2020. These appear in the claim form and in the clinical notes of Mr Li. Notably, those records make no reference to neck symptoms.
Whilst there is reference to neck symptoms throughout the medical evidence, including the evidence from the Workers Doctors and Dr Kafataris, the symptoms are generally described as mild, intermittent and having generally improved. The applicant did not receive specialist treatment for the cervical spine until a recent increase in symptoms was reported to
Dr Khong in March 2021. Given that neck pain had been reported to the applicant’s pre-injury general practitioners, inconsistencies in the reporting and timing of the onset of neck symptoms and the delay in reporting neck symptoms in the context of the specific event, I am not satisfied that the applicant’s experience of symptoms in the cervical spine was any greater or different as a result of the event on 4 April 2020.
Whilst I have given weight to the evidence from Dr Gehr which attributes symptoms at the cervical spine to the event on 4 April 2020, I am not satisfied that he has in his reports adequately grappled with the issues I have identified above.
Considering the evidence as a whole, I do not feel a sense of actual persuasion that there was an injury to the applicant’s cervical spine in the event on 4 April 2020.
The evidence of an injury to the applicant’s left shoulder in that event is significantly stronger. As noted above, symptoms in the left shoulder were more contemporaneously reported as arising from the specific event on 4 April 2020. Although there were previous work and non-work related injuries to the left shoulder documented in the medical evidence, the symptoms at the applicant’s left shoulder do not appear to have been incapacitating immediately prior to the event 4 April 2020. As noted by Dr Soo, the applicant was able to maintain his pre-injury employment involving repetitive heavy lifting and reaching above shoulder height notwithstanding the previous work injury.
Although it is not clear that Dr Soo was apprised of the non-work-related injury involving building a kayak, or the report of increased symptoms after sleeping on a bad pillow, I accept that the applicant had continued on with his pre-injury duties, which required the use of his left arm and shoulder for several months after those events.
Dr Soo has explained how the mechanism of injury would account for the constant, increased pain experienced since April 2020. Dr Soo said the applicant now had limited capacity to perform any occupational activity requiring use of the left arm.
For these reasons, after careful consideration of the evidence, I am satisfied on the balance of probabilities that there was an injury to the applicant’s left shoulder in the event on 4 April 2020 resulting in a demonstrable increase in symptoms and incapacity.
There is no evidence before me to suggest any other cause for the increase in symptoms and incapacity at the left shoulder.
I am satisfied, therefore, that the applicant sustained an injury pursuant to ss 4(a), 4(b)(ii) and 9A of the 1987 Act to his left shoulder on 4 April 2020.
Finally, the applicant relies on a secondary psychological condition. The evidence in relation to this aspect of the applicant’s claim is also inconsistent. The applicant does not appear to have disclosed any prior psychological symptoms although such symptoms are apparent in the clinical notes from late 2016 and 2017.
The applicant is reported to have specifically denied experiencing any psychological symptoms at the time of his consultation with Dr Roberts.
In contrast, however, the applicant did consult Ms Tang over a period of approximately six months between June and December 2020. Ms Tang diagnosed an adjustment disorder with depressed and anxious mood and gave the opinion that memory and concentration deficits as well as anxious distress, anergia from pain and sleep disturbance were preventing the applicant from performing any work duties. Ms Tang related these symptoms to the event on 4 April 2020 causing severe pain in the applicant’s back.
The applicant was reported to have produced DASS21 scores which were extremely severe for depression, anxiety and stress at the time of his examination at the time of his examination with Dr Rastogi. Dr Rastogi also diagnosed an adjustment disorder with depressed mood secondary to pain and limited functioning as well as financial stressors related to the injury on 4 April 2020. Dr Rastogi gave the opinion that the applicant was unfit to work in any capacity now and in the future due to the persistence of pain, functional disability and psychological sequelae.
Apart from the retention of that diagnosis in the certificates of capacity which have continued to be issued by the Workers Doctors, there is no evidence that the applicant has received any treatment for a psychological condition after 2020.
Notwithstanding the contradictory presentation to Dr Roberts, the weight of evidence does suggest the onset of secondary psychological symptoms requiring treatment by Ms Tang from mid-to-late 2020.
I am satisfied on the balance of probabilities that the applicant had secondary psychological symptoms which were incapacitating from June 2020 until the end of December 2020. After that date, it is not apparent on the evidence before me what treatment the applicant was receiving in respect of his psychological symptoms, if any. I am not satisfied by the continued inclusion of the diagnosis of an adjustment disorder on the certificates of capacity alone that any secondary psychological condition continued to be incapacitating work after that date.
Considering the claim for weekly compensation, however, it matters little. Having regard to the treating medical evidence of Dr Khong and Dr Soo, the clinical records of the Workers Doctors, the certificates of capacity, and the evidence of Dr Gehr, I am satisfied that in the period 15 June 2020 to date, the applicant’s lumbar and left shoulder symptoms have rendered him unfit to work in either his pre-injury duties or any other suitable employment.
In reaching this view I have given careful consideration the applicant’s presentation to
A/Prof Miniter and Dr Kafataris and their contrary opinions. Those opinions were, however, expressed relatively soon after the injurious event, before any radiological investigations had been conducted and before the applicant was seen by Dr Khong and Dr Soo. Those opinions also do not take into account the secondary psychological condition for which the applicant was being treated after June 2020. In the period of weekly compensation claimed in these proceedings, the weight of evidence favours a finding of total incapacity.
For the reasons given above, I am satisfied that applicant has had no current work capacity as a result of the injury on 4 April 2020 from 15 June 2020 to date.
I will order the respondent to pay the applicant weekly compensation pursuant to ss 36(1) and 37(1) of the 1987 Act based on the agreed PIAWE figure of $1,706.49, indexed periodically, from 15 June 2020 to date and continuing.
There will also be a general order for the respondent to pay the applicant’s reasonably necessary medical and related treatment expenses resulting from the injury on 4 April 2020, pursuant to s 60 of the 1987 Act upon production of accounts, receipts, and/or Medicare Notice of Charge.

[2022] NSWPIC 71

7 February 2022