Delaney v CSR Building Products Ltd - [2023] NSWPIC 378

CERTIFICATE OF DETERMINATION OF MEMBER

Citation:

Delaney v CSR Building Products Ltd [2023] NSWPIC 378

APPLICANT:

Steven Charles Delaney

Respondent:

CSR Building Products Limited

Member:

Karen Garner

DATE OF DECISION:

31 July 2023

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation pursuant to section 33 and medical and related expenses of past treatment including L1/2 microdiscectomy surgery pursuant to section 60; applicant sustained accepted work injury to the L5/S1 level of spine on 8 November 2021; whether the applicant also sustained injury to the L1/2 level of spine on 8 November 2021 pursuant to section 4; Held – applicant sustained injury on 8 November 2021 to the L1/2 disc in the nature of an aggravation, acceleration, exacerbation and deterioration of a disease process in the course of his employment and to which his employment was the main contributing factor pursuant to section 4(b)(ii); the past treatment referred to in the applicant’s schedule of expenses including the right L1-2 microdiscectomy performed on 14 June 2022 is reasonably necessary as a result of injury on 8 November 2021; the applicant had as a result of injury on 8 November 2021 no current work capacity and, later, current work capacity; and accordingly, the respondent is ordered to pay the costs of past treatment set out in the applicant’s schedule of expenses in accordance with section 60; the respondent is ordered to pay the applicant weekly compensation, pursuant to section 37(1); in the amount of $1,470.96 per week from 12 May 2022 to 17 July 2022; in the amount of $128.96 per week from 18 July 2022 to 1 August 2022, and in the amount of $404.77 per week from 2 August 2022 to 19 September 2022.

determinations made:

The Commission determines:

1. The applicant sustained injury on 8 November 2021 to the L1/2 disc which progressed to a degenerative disc prolapse of that level in the nature of an aggravation, acceleration, exacerbation and deterioration of a disease process in the course of his employment and to which his employment was the main contributing factor pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act).

2. The past treatment referred to in the applicant’s schedule of expenses including the right
L1-2 microdiscectomy performed on 14 June 2022 is reasonably necessary as a result of injury on 8 November 2021 within the meaning of s 60 of the 1987 Act.

3. The applicant had, as a result of injury on 8 November 2021:

(a) no current work capacity from 12 May 2022 to 17 July 2022;

(b) current work capacity and returned to work for less than 15 hours per week from 18 July 2022 to 1 August 2022;

(c) current work capacity and returned to work for not less than 15 hours per week from 2 August 2022 to 8 September 2022, and

(d) current work capacity and returned to work for not less than 15 hours per week from 9 September 2022 to 19 September 2022.

The Commission orders:

1. The respondent to pay the applicant medical treatment and related expenses on production of accounts, receipts and/or Medicare Notice of Charge pursuant to s 60 of the 1987 Act.

2. The respondent to pay the applicant weekly compensation pursuant to s 37(1) of the 1987 Act as follows:

(a) in the amount of $1,470.96 per week from 12 May 2022 to 17 July 2022;

(b) in the amount of $128.96 per week from 18 July 2022 to 1 August 2022, and

3. Liberty to apply within 14 days in respect of calculation of the weekly compensation amounts.

STATEMENT OF REASONS

BACKGROUND

Steven Charles Delaney (the applicant) was employed by CSR Building Products Limited (the respondent) in the position of team leader, and previously, forklift operator.
In an incident in the course of his work with the respondent on 8 November 2021, the applicant sustained an injury to the L5/S1 level of his spine (the original injury).
The applicant alleges that in that same incident on 8 November 2021 he also sustained an injury to the L1/2 level of his spine or, in the alternative, aggravation, acceleration, exacerbation or deterioration of a pre-existing condition of the L1/2 level of his spine.
On or about 9 November 2021, the applicant initiated a claim for workers compensation by way of a Worker’s Injury Claim Form,[1] which stated that the applicant suffered low back pain on 8 November 2021 when he drove a forklift over a pothole, jarring his back.
[1] Reply, page 1.
The applicant was paid weekly compensation benefits and medical and related expenses on a provisional basis.
By notice dated 3 May 2022[2] issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent’s insurer declined liability for weekly compensation and medical and related expenses in relation to injury to the applicant’s lower back on 8 November 2021 on the grounds that: any injury to the L5/S1 level of the lumbar spine had resolved and the applicant no longer suffered the effects of that injury; any incapacity for work does not result from injury sustained on 8 November 2021, but rather results from spontaneous disc prolapse at the L1/2 level which is not work related; on that basis, the requirements of ss 4, 33 and 60 of the Workers Compensation Act 1987 (the 1987 Act) were not satisfied. The notice stated that the entitlement to weekly compensation benefits would discontinue on 12 May 2022 and the entitlement to medical and related expenses would discontinue on 3 May 2022.
[2] Reply, page 9.
The applicant sought a review of that decision.[3]
[3] Reply, page 16.
By notice dated 26 May 2022[4] issued pursuant to s 287A of the 1998 Act, the insurer maintained its decision issued on 3 May 2022.
[4] Reply, page 19.
The applicant sought a review of that decision.[5]
[5] Reply, page 27.
By notice dated 9 September 2022[6] issued pursuant to s 287A of the 1998 Act, the insurer maintained its decision issued on 3 May 2022.
[6] Reply, page 29.
The applicant sought a review of that decision.[7]
[7] Reply, page 36.
By notice dated 21 February 2023[8] issued pursuant to s 287A of the 1998 Act, the insurer maintained its decision issued on 3 May 2022.
[8] Reply, page 38.
The applicant sought a review of that decision.[9]
[9] Reply, page 45.
By notice dated 9 March 2023[10] issued pursuant to s 287A of the 1998 Act, the insurer maintained its decision issued on 3 May 2022.
[10] Reply, page 47.
On 17 May 2023, the applicant commenced proceedings in the Personal Injury Commission (Commission) by an Application to Resolve a Dispute (ARD), which states that the applicant seeks:
(a) weekly compensation pursuant to ss 33 and 37 of the 1987 Act, from
12 May 2022 to 19 September 2022, and
(b) medical and related expenses pursuant to s 60 of the 1987 Act, in respect of past treatment and related expenses.
On 9 June 2023, the respondent lodged in the Commission a Reply to the ARD (Reply).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

At a conciliation/arbitration hearing, conducted by MS Teams on 17 July 2023, Mr Greg Young, counsel, appeared on behalf of the applicant, instructed by Mr Daniel Graham of Brazel Moore Lawyers, together with the applicant. Mr Tom Grimes, counsel, appeared on behalf of the respondent, instructed by Ms Belinda Walsh of Hall & Wilcox Lawyers, together with a representative of the self-insurer.
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

At the hearing, the parties agreed that:
(a) the applicant’s pre-injury average weekly earnings (PIAWE) at the date of injury was $1,838.70, with ability to earn/current weekly earnings of $1,342.04 in respect of the claimed period, and
(b) there is no dispute that the applicant sustained injury to the L5/S1 level of spine in the course of work when he drove a forklift over a pothole, with a date of injury of 8 November 2021.
The parties agree that the following issues remain in dispute:
(a)    whether the applicant sustained injury to the L1/2 level of spine on
8 November 2021, arising out of or in the course of employment and his employment was a substantial contributing factor to the injury, pursuant to ss 4(a) and 9A of the 1987 Act;
(b)    whether the applicant sustained aggravation, acceleration, exacerbation or deterioration of disease to the L1/2 level of spine on 8 November 2021, arising out of or in the course of employment and his employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of disease, pursuant to s (b)(ii) of the 1987 Act;
(c) whether the applicant has total or partial incapacity for work resulting from an injury and the extent and quantification of any entitlement to weekly compensation, pursuant to ss 33 and 36 of the 1987 Act, and
(d)    whether medical or related treatment is reasonably necessary as a result of an injury, pursuant to ss 59 and 60 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents (AALD) by the insurer dated 10 July 2023 and attached documents (which was admitted into evidence by consent).

Oral evidence

No application for cross-examination was made and no oral evidence was given.

Applicant’s evidence

The applicant gave evidence by way of a statement dated 4 November 2022.[11]
[11] ARD, page 1.
The applicant stated that he commenced work with the respondent as an operator in 2006 and he was subsequently appointed to the position of team leader.
The applicant stated that he was treated for L5/S1 disc replacement/fusion by Dr Marc Coughlin in November 2010. The operation was successful and after rehabilitation, the applicant returned to normal duties as an operator with the respondent. The applicant received workers compensation in respect of that injury.
The applicant stated that in June 2022, he was involved as a passenger in a motor vehicle accident. He was referred to physiotherapy for pain in his neck, shoulders, upper back, lower back and legs. (As noted below, it appears that date is incorrectly stated and that the correct date of the applicant’s motor vehicle accident was in June 2020.)
The applicant stated that on 8 November 2021, he was driving a forklift in the course of his work with the respondent when the forklift hit a pothole. The applicant immediately felt pain in his back. The applicant immediately reported the incident. After lying down for about an hour, the pain had not eased and the applicant had to be driven home as he was unable to drive.
The applicant stated that he consulted Dr Moreland on 10 November 2021 and he was ultimately deemed unfit for work duties for a period of approximately seven months.
The applicant stated that on 14 June 2022, he underwent a micro discectomy, performed by Dr Marc Coughlin. The applicant was unfit for work duties for a further four weeks.
The applicant stated that: from 18 July 2022 to 1 August 2022, he was certified as having capacity to work for four hours per day, three days per week, with restrictions; from 2 August 2022 to 8 September 2022, he was certified as having capacity to work for eight hours per day, three days per week, with restrictions; from 9 September 2022 to 5 October 2022, he was certified as having capacity to work eight hours per day, five days per week, with restrictions; and on 6 October 2022, he was certified fit for pre-injury work.
The applicant stated that the L1/2 microdiscectomy surgery on 14 June 2022 was successful and he has not experienced any further symptoms or consequential injuries.
The applicant stated that he never injured L1/2 level of his spine prior to the work injury on
8 November 2021.

Treating medical evidence

On 17 March 2022, Dr Marc Coughlan, treating neurosurgeon, reported that:[12]
“Steven has severe pain in the right thigh and groin area, he injured himself in November whilst on an excavator. This seemed to settle after a few days and his back pain was not too severe. However, a few days ago whilst at work in the excavator he had sudden onset of severe right-sided back pain and pain down into his thigh and groin. This has been excruciating and he has been in agony.
Steven does have some mild hip flexor weakness and reduced range of movement with significant lumbar spasms. He also volunteers that his bladder function is not normal, and he has had significant issues with this. His MRI scan in November shows what appeared to be a small bulge at L1/2 disc on the right-hand side. Over his most recent MRI scan confirms a very large, sequestrated segment at L1/2 on the right, this is extended upwards and is compressing the thecal sac and the nerve root in the lateral recess. He is in severe pain and I have recommended he give consideration to a microdiscectomy...”
[12] ARD, page 69.
On 8 April 2022, Dr Coughlan responded in writing to a series of questions. Dr Coughlan stated that:[13]
[13] ARD, page 70.
“...
2.      Steven reports he injured himself in November last year whilst on an excavator. This seemed to settle after a few days and his back pain was not too severe. However, more recently whilst at work in the excavator, he had sudden onset of severe right-sided back pai and pain down into his thigh and groin. This has been excruciating and he has been in agony.
...
4.     I would describe this as an exacerbation of the November injury.
5.     Yes the cause of Steven’s current symptoms is the recent episode.
6.     The incident occurred on 10 March 2022 as reported by steven’s GP.
...
8.     As stated in my last letter Steven has been suffering the symptoms after the original injury which had subsequently resolve somewhat. His recent flare up of the same symptoms have occurred since the recent exacerbation.
...
14.    It is unlikely Steven would be suffering from his current symptoms had he not been in the excavator...”
On 13 May 2022, Dr Coughlan provided written clarification of his report dated 8 April 2022.[14] Dr Coughlan stated that the applicant had reported that he had been driving a forklift, not an excavator, when his injury occurred in November. Dr Coughlan stated that:
“... Regardless of the machinery he was driving, the important fact is he was operating a vehicle during the course of his work duties when he drove into a pothole causing a sudden onset of back pain. The pain settled after a few days with conservative treatment but then flared up in March this year before he came to see me.
Considering Steven had a sudden onset of severe pain following the initial work injury in November I believe his employment is the main contributing factor to his current symptoms and pathology. Steven stopped work and despite a temporary settling of symptoms, which is not unusual when an aggravation is ceased, it did not take much for Steven [sic] symptoms to flare up again. Looking at his imaging it was only a matter of time. I believe the March incident is directly related to the November injury.”
[14] ARD, page 72.
On 12 August 2022, Dr Coughlan responded in writing to a series of questions:[15]
[15] ARD, page 73.
“1. Please outline the history of the work injury, and your previous treatment thereof, including any surgical interventions.
Steven reports in November 2021 he was operating a vehicle during the course of his work duties when he drove into a pothole causing a sudden onset of back pain. The pain settled after a few days with conservative treatment but then flared up in March this year before he came to see me. Steven’s MRI scan confirmed a very large, sequestrated segment at L1/2 on the right, this extended upwards and was compressing the thecal sac and the nerve root in the lateral recess. Given his severe pain we proceeded with a right L1-2 microdiscectomy on 14 June 2022.
2. Please outline your proposed recommended surgery, and what such a surgery would be designed to achieve.
I reviewed Steven post operatively on 29 July 2022. Steven has done very well after the microdiscectomy. His nerve pain has all but receded and he has noticed marked improvement in his leg pain...
Given the mechanism of injury, subsequent symptoms and imaging were all closely correlated, it is unlikely Steven would have required surgery had he not injured himself during the course of his work duties.
...
4. Do you believe it is probably that our client would still require the proposed surgery, at or about the same time or at the same stage of his life, if he had not been at work or had not worked in that employment?
Given the mechanism of injury, subsequent symptoms and imaging were all closely correlated, it is unlikely Steven would have required surgery had he not injured himself during the course of his work duties.
5. Do you believe the proposed surgery is reasonably necessary to treat his work injury?...
Yes. His recovery progress is testament to this.”

Imaging

On 15 December 2021, an MRI of the lumbar spine was reported [16] to show a disc fusion at L5/S1 appeared consolidated and uncomplicated and there was no compressive disc lesion identified and no evidence of canal or foraminal stenosis. No significant abnormality was identified at L1/2. The report noted a history of “Sciatica following work injury a few weeks ago”.
[16] ARD, page 67.
On 9 March 2022, an MRI of the lumbosacral spine and right hip was reported[17] to show a large L1/2 right paracentral disc extrusion which compresses the right L1 nerve root and probably also other lumbar nerve roots towards the central canal. The report noted a history of “Sciatica radiating down to right anterior thigh”.
[17] ARD, pages 68, 76.

Clinical records of Coastal Neurosurgery

The evidence included various clinical records of Coastal Neurosurgery.[18]
[18] ARD, page 87; Reply, page 90.
On 1 December 2021,[19] Dr Moreland recorded “definite improvement with physiotherapy”.
[19] ARD, page 152.
On 8 December 2021,[20] Dr Moreland recorded that the applicant had presented with lower back pain following an injury at work whilst driving in a pothole. Dr Moreland stated that the applicant’s pain score on first presentation was 5/10 which improved to 3/10 on subsequent follow up and that sitting aggravated the pain. Dr Moreland noted that the applicant had a previously known baseline of pain due to a previous motor vehicle accident injury in the same area. Dr Moreland opined that the work injury had exacerbated the pre-existing condition.
[20] ARD, page 181.
On 10 December 2021,[21] Dr Moreland recorded “attended physiotherapy on Tuesday – pain legs and lower back after physiotherapy session slight improvement in leg pain. overall movement much better since Tuesday”.
[21] ARD, page 153.
On 3 February 2022,[22] Dr Moreland recorded that the applicant had seen the physiotherapist, had some restrictions and some improvement and that he was taking two weeks holidays from work from the following day.
[22] ARD, page 155.
On 16 February 2022,[23] Dr Moreland recorded that the applicant was then experiencing “inconsistent pain behaviours at work can go from nil pain to excruciating pain”.
[23] ARD, page 156.
On 2 March 2022,[24] Dr Moreland recorded a history of:
“2 - 3 week history of aggravated pain in lower back radiating to anterior thigh
nil history of reinjury
[24] ARD, page 157.
woke up with pain one morning”
On 2 March 2022,[25] Dr Moreland’s referral to Dr Coughlan sought an opinion and management in relation to “sciatica following an injury at work 10/11/22 whilst driving a forklift” (which is obviously incorrect and appears intended to state November 2021). It stated that the applicant seemed “to be going along well until todays consult where current pain is 8/10. It appears he had a flare up about 2 – weeks ago and has been unable to work. The symptoms seem inconsistent with the MRI”.
[25] ARD, page 132.

Clinical records of Caligem Health

The evidence included various clinical records of Caligem Health.[26]
[26] ARD, page 151, Reply, page 154.
On 11 January 2022,[27] a report of Optimum physiotherapists stated that the applicant “reports that his back has been improving over the last few weeks. He reports an intermittent 1-2/10 dull ache in his bilateral lower back and no leg pain currently”.
[27] ARD, page 188.
On 1 February 2022,[28] a report of Optimum physiotherapists stated that the applicant experienced “a flare-up of his low back and leg pain approximately 2 weeks ago. He has since improved and is now reporting an intermittent 1-2/10 dull ache in his bilateral lower back and no leg pain currently”.
[28] ARD, page 190.
On 9 March 2022,[29] a report of Optimum physiotherapists stated that the applicant:
“experienced a significant flare-up in early February with an unknown cause. His presentation appeared to be slightly different compared to his ongoing low back pain. Steven is currently experiencing constant pain in the bilateral lower back, and pain and numbness that wraps around the right hip. He has noticed some improvement in his symptoms in the last week with a change in treatment.”
[29] ARD, page 192.

ADL Assessment Report

An activities of daily living assessment report dated 26 April 2022 was prepared by ErgoSmart Consulting.[30] The report stated that the applicant was assessed as requiring certain support as he rehabilitated from spinal surgery in respect of a lumbar spine injury on 8 November 2021. The report summarised that applicant’s history as follows:
“... sustained a low back injury on 08/11/2021 when he was driving a forklift over uneven surfaces at the workplace... He remained at work performing suitable duties until he work up one morning in February 2022 and could barely move due to severe low back pain symptoms. He has been off work since this date whilst awaiting surgery to be performed by Dr Marc Coughlan, Neurosurgeon who he had seen for a previous compensable back injury.
Mr Delaney stated that he had injured his lumbar spine in 2010 [in] a workplace injury sustained at CSR Limited. He underwent L5/S1 spinal fusion surgery performed by
[30] AALD of insurer dated 10 July 2023, page 1.
Dr Coughlan and was able to return to work on a fulltime basis.”

Certificates of capacity

The evidence contains various certificates of capacity which certified that the applicant:[31]
(a) had capacity for some type of work for eight hours per day, five days per week (or normal hours and days) from 10 November 2021 to 17 November 2021,[32] from 12 January 2022 to 11 February 2022[33] and from 3 February 2022 to 1 March 2022,[34] and
(b) no current capacity for any work from 23 February 2022 to 9 March 2022.[35]
[31] Reply, pages, 68, 71, 74, 77; and also contained in the clinical records.
[32] ARD, page 112.
[33] ARD, page 115.
[34] ARD, page 118.
[35] ARD, page 129.

Other evidence

Other evidence included:
(a)    List of payments;[36]
(b)    Employee payslips;[37]
(c)    Schedule of out-of-pocket expenses,[38] and
(d)    Allied health recovery requests.[39]

Independent medical evidence

[36] ARD, page 47.

[37] ARD, 194.

[38] ARD, page 314.

[39] Reply, pages 80, 85.

Dr Christopher Harrington, orthopaedic surgeon

Dr Harrington provided an independent medical opinion, qualified by the applicant.
In a report dated 23 January 2023,[40] Dr Harrington recorded a history that the applicant previously suffered a back injury at work in 2010 which led to an anterior fusion at L5/S1 and he made an excellent recovery. Dr Harrington recorded that, on 8 November 2020 in the course of his work, the applicant drove a forklift which hit a pothole and jarred his back, causing a fair amount of pain; an MRI was normal and the applicant treated the injury conservatively. Dr Harrington stated that the applicant:[41]
“... tried to continue working although his symptoms never really settled down. A few weeks later he had another episode at work, just sitting at his desk, with current back pain with radiation into his right groin and down his leg. He was unable to finish... the shift or drive home.
He also describes an episode whilst on holidays, when he woke one morning with excruciating pain to the point where he couldn’t get out of bed. I’m not sure whether this occurred before or after the episode at work. Nevertheless he underwent a repeat MRI on 9 March 2022 which showed a large right sided prolapse at L1/2. He was referred to Dr Marc Coughlan, who recommended surgical intervention.
He was then seen by Dr Casikar for an independent assessment on 16 March 2022. Dr Casikar agreed with immediate intervention with the L1/2 microdiscectomy proposed by Dr Coughlan. For some reason the Insurer did not approve liability so Mr Delaney self funded the operation which involved a wide right sided microdiscectomy at L1/2 and rhizolysis of the L1 nerve. This was done at Gosford Private Hospital on 14 June 2022. He says the operation was successful and he is happy with the results.”
[40] ARD, page 79.
[41] ARD, page 81.
In relation to the diagnoses, Dr Harrington stated:[42]
“Mr Delaney seems to have suffered a degenerative disc prolapse at L1/2 on 8 November 2021 when the forklift hit a pothole and jarred his back. He then described two further episodes involving radiating pain into his right groin and down his leg.
We know there was some disc degeneration at the L1/2 level however the first MRI didn’t include high enough sagittal cuts, probably because the clinical history on the request form indicated sciatica (which probably wasn’t correct). The second MRI obviously shows the impressive prolapse at L1/2 on the right, which was consistent with his symptoms.
Mr Delaney says that the pain was always in the same location following the jarring injury at work on 8 November 2021, but obviously intensified following the recurrence in early 2022.”
[42] ARD, pages 82 – 83.
Dr Harrington stated that the diagnosis is a successful microdiscectomy at L1/2.
Dr Harrington noted that the applicant had some reduced strength and stamina although his range of movement is excellent and he is doing gym exercises and swimming.
Dr Harrington opined that the history and MRI findings is consistent with the applicant having damaged the L1/2 disc in the forklift incident at work in November 2021 and that he later suffered a prolapse at that level. Dr Harrington stated that he believed the forklift incident at work in November 2021 is causally related to the prolapse at L1/2 and the microdiscectomy surgery. Dr Harrington stated that there was some disc degeneration at L1/2 however the applicant was asymptomatic prior to the forklift incident at work in November 2021.

Dr Vidyasagar Casikar, neurosurgeon

Dr Casikar provided an independent medical opinion, qualified by the insurer.
In a report dated 25 March 2022, Dr Casikar recorded the following history:[43]
“In November 2021, when he was driving the forklift, it went into a pothole and he developed severe pain in the back and symptoms along the right leg. He consulted Dr Moreland, the company nominated doctor, who arranged for an MRI examination and physiotherapy. Following the MRI examination, she indicated that there were no problems and he should continue with physiotherapy. He was advised to take Lyrica, Mobic and with physiotherapy he was getting better.
A few weeks later when he was a work and he was not doing anything special except sitting at the desc, he suddenly felt severe pain in the back and pai along the right groin. He was not lifting any weight at that stage. Because of his severe new neurological complaint Dr Moreland arranged for an MRI examination. This examination suggested an L1/2 large disc prolapse on the right side...”
[43] Reply, page 55.
Dr Casikar noted that the MRI scan on 9 March 2022 reports a large disc prolapse of L1/2 on the right side.
Dr Casikar diagnosed that the applicant had developed a new injury, being a disc prolapse of the L1/2. He noted that the applicant was in severe pain and required immediate attention.
Dr Casikar stated that in his opinion, in the forklift incident at work in November 2021, the applicant probably damaged the annulus fibrosis and over a period of time a disc prolapse occurred due to the defect. On that basis, Dr Casikar considered that it was a new injury related to the applicant’s employment and the applicant required an L1/2 microdiscectomy. Dr Casikar did not believe that it was an aggravation of a previous injury.
Dr Casikar stated that the “fact that the disc protrusion was obvious a few weeks later is consistent with the normal mechanism, as described”. Dr Casikar stated that “a delay of a couple of weeks is acceptable because very often a disc prolapse does not occur immediately, it takes some time to develop. In my opinion this presents neurological complaints verifiable after clinical examination and is related to his recent new injury that occurred in November 2021”.[44] Dr Casikar stated that in his opinion:[45]
“The employment is a substantial contributing factor to the new injury. He did not have any problems following the previous injury. He was doing the normal work when he drove the forklift through a pothole, he developed an acute back pain. It is very likely that he damaged his annulus fibrosis and produced a disc prolapse gradually over a period of time.”
[44] Reply, page 56.
[45] Reply, pages 56 – 57.
In a supplementary report dated 26 April 2022, in response to a question whether the findings of the MRI dated 9 March 2022 were a direct result of the injury on 10 November 2021 (which should have been 9 November 2021), Dr Casikar stated that:[46]
“... the disc prolapse was seen on the MRI dated 09/03/2022. Mr Delaney seems to have returned to work on 15/12/2021. Therefore, the disc prolapse at L1/2 which was seen in the MRI examination of 09/03/2022 is a new pathology and not related to the old injury.”
[46] Reply, page 59.
In response to a further question whether there would have needed to be a new traumatic event to explain the results of the MRI dated 9 March 2022, Dr Casikar stated “It is very likely a new injury. If there was no new injury it is possible that the disc prolapse was spontaneous”.[47]
[47] Reply, page 59.
In a further supplementary report dated 12 April 2022, Dr Casikar stated:[48]
“In my opinion, a delay of a couple of weeks is acceptable for a disc prolapse to occur after an injury. However, a delay of 15 weeks from the date of the injury is difficult to accept as related to the injury. I have indicated that a delay of 15 days is acceptable. There was no evidence for me to indicate that there was a delay of 15 weeks. If there is definitely a delay of 15 weeks, then the disc prolapse is not related to the workplace injury.”
[48] Reply, page 61.

Submissions

Counsel’s submissions were recorded.

Applicant’s submissions

Mr Young’s submissions on behalf of the applicant may be summarised as follows:
(a)    Mr Young submitted that there is consistent evidence and no real dispute in relation to various matters, being: the injurious event at work in November 2021 when the applicant was driving a forklift, which was clearly in the course of work; injury or aggravation of injury at L1/2 of the applicant’s spine, shown in the MRI scan dated 9 March 2022; the applicant’s incapacity for the claimed closed period of weekly compensation; PIAWE; and that the L1/2 microdiscectomy surgery performed on 14 June 2022 was reasonably necessary;
(b)    Mr Young submitted that the only significant issue which requires real determination is the issue of causation of the large disc prolapse of L1/2 on the right side, which was identified in the MRI scan on 9 March 2022;
(c)    Mr Young acknowledged that the applicant’s statement was somewhat deficient in relation to the history of the injury. Mr Young submitted that the various medical evidence records adequate history for the Commission to be satisfied in relation to the issue of causation;
(d)    Mr Young referred to various parts of the medical evidence. Mr Young submitted that the medical evidence discloses two events, which were both subsequent to the forklift incident at work in November 2021, when the applicant experienced significant L1/2 pain symptoms, being:
(i)waking up in pain, having slept awkwardly when the applicant was on holidays, and
(ii)experiencing pain, when sitting at his desk at work.
(e)    Mr Young submitted that little weight should be given to the MRI scan dated 15 December 2021 on the basis that it simply stated that there was no “significant abnormality” at L1/2. Mr Young noted that Dr Harrington explained that the L1/2 was not properly investigated by that scan and it did not show include high enough sagittal cuts because the clinical history on the request form (probably incorrectly) recorded sciatica and it did not show the full extent of the changes at the L1/2 level. Mr Young noted that MRI dated 9 March 2022 showed significant pathology at L1/2, which the respondent does not dispute;
(f) Mr Young submitted that the opinion of Dr Harrington in relation to the issue of causation, to the effect that the work incident in November 2021 caused aggravation of a degenerative change at L1/2 of the applicant’s spine (being injury in accordance with s 4(b)(ii) of the 1987 Act) is persuasive and should be accepted by the Commission. Mr Young submitted that Dr Harrington recorded a detailed history, which included when the applicant woke in pain. Mr Young submitted that Dr Harrington recorded a history that the applicant’s pain symptoms “never really settled down” following the work incident in November 2021. Further, Dr Harrington recorded a history that the pain was always in the same location following the jarring injury at work on 8 November 2021, but intensified following the recurrence in early 2022. Mr Young submitted that
Dr Harrington recorded that the applicant was asymptomatic prior to the work incident in November 2021;
(g)    Mr Young submitted that, although Dr Coughlan’s initial reports recorded an incorrect history, Dr Coughlan’s report dated 12 August 2022 appears to be based on the correct history and this report supports a finding that the work incident in November 2021 was the cause of the applicant’s L1/2 pathology and necessitated that microdiscectomy surgery at L1/2;
(h) Mr Young submitted that Dr Casikar accepted (in his initial report) that the work incident in November 2021 damaged the annulus fibrosis and produced a disc prolapse gradually over a period of time (being injury in accordance with s 4(a) of the 1987 Act). Mr Young noted that Dr Casikar’s second report accepted that, a 15 week delay between the injurious event at work and the finding of pathology of a disc prolapse in March 2022, it was likely a new pathology. However Mr Young noted that Dr Casikar stated that a new traumatic event was likely to be required, but that in the absence of a new injury it was possible that it was spontaneous;
(i)    Mr Young submitted that the L1/2 disc prolapse was in the nature of a consequential condition which resulted from the injury in the work incident in November 2021 and on that basis the correct test to be applied is that of Kooragang v Bates and further it is not necessary for the applicant to prove that the employment was the main or substantial contributing factor;
(j)    Mr Young submitted that the delay between the injurious incident in November 2021 and the MRI finding of L1/2 disc prolapse in March 2022 was explained by Dr Harrington, and
(k)    Mr Young submitted that the applicant’s case, based on the opinion of
Dr Harrington, is that the injury was aggravation of degenerative change at L1/2 pursuant to s 4(b)(ii) of the 1987 Act. Mr Young submitted that the incident at work in November 2021 was clearly in the course of work and work was a substantial contributing factor to that injury.

Respondent’s submissions

Mr Grimes’ submissions on behalf of the respondent may be summarised as follows:
(a)    Mr Grimes submitted that the applicant’s case is not supported by evidence in key respects. Mr Grimes submitted that there was no evidence by the applicant that, following the work incident in November 2021, he experienced ongoing pain nor in relation to the site or nature of any ongoing pain. Further, Mr Grimes submitted that the applicant’s statement did not provide any history in relation to the desk incident or waking in pain when on holidays;
(b)    Mr Grimes submitted that the applicant did not plead any consequential condition and there should be no finding in that regard;
(c)    Mr Grimes submitted that the applicant’s statement that he was deemed medically unfit for duties from or about 10 November 2021 for a period of seven months was incorrect. Mr Grimes stated that Certificates of Capacity stated that the applicant had capacity for some type of work for eight hours per day, five days per week for various periods;
(d)    Mr Grimes submitted that the treating evidence, shows variations in the pain experienced by the applicant since the work incident in November 2021.
Mr Grimes particularly referred to: various clinical records of Dr Moreland which he submitted showed pain in the applicant’s legs and lower back which improved over time; the report of the MRI scan on 15 December 2021 which recorded a history of sciatica following a work injury a few weeks ago; the Optimum reports on 11 January 2022, 1 February 2022 and 9 March 2022; Dr Moreland’s referral to Dr Coughlan dated 2 March 2022 which noted that the applicant’s symptoms seemed inconsistent with the MRI scan.
(e)    Mr Grimes submitted that the two MRI scans show very different pathology in relation to the L1/2 level, which he submitted is consistent with Dr Coughlan’s view that the early MRI does not show any pathology which justifies the applicant’s symptomatology;
(f)    Mr Grimes submitted that the applicant should give little weight to Dr Coughlan’s opinion in relation to causation because it was based on an incorrect history.
Mr Grimes submitted that Dr Coughlan did not give any explanation for the inconsistent history recorded and did not provide any explanation of the mechanism of injury that he relied upon;
(g)    Mr Grimes submitted that the Commission should also give little weight to the evidence of Dr Harrington. Mr Grimes submitted that the history recorded by
Dr Harrington was confused and not detailed in the applicant’s statement.
Mr Grimes submitted that Dr Harrington’s did not provide an explanation for his opinion including how the disc prolapse occurred, whether degenerative change caused the disc prolapse and he did not say that the disc prolapse was there when the first MRI was done;
(h)    Mr Grimes submitted the Commission should give little weight to Dr Casikar’s first report dated 25 March 2022 in relation to causation because it is apparent from Dr Casikar’s report that Dr Casikar only considered the MRI on 9 March 2022 and he did not consider the earlier MRI in December 2021. He submitted that
Dr Casikar made no attempt to grapple with the different MRIs. Mr Grimes submitted that Dr Casikar did not give any real consideration to the history of injury and the investigations;
(i)    Mr Grimes submitted that Dr Casikar’s later reports which stated his changed view that the disc prolapse was a new and unrelated spontaneous pathology was based on information that the applicant returned to work on 15 December 2021 and a delay of some 15 weeks between the work incident in November 2021 and the finding of pathology in the MRI on 9 March 2022, and
(j)    Mr Grimes submitted that, consistent with the opinion of Dr Casikar, the Commission should find that the disc prolapse is new pathology unrelated to the work injury in November 2021. Mr Grimes submitted that the applicant has not discharged its onus of proof and that there should be an award for the respondent.

Applicant’s submissions in reply

Mr Young’s submissions in reply on behalf of the applicant may be summarised as follows:
(a)    Mr Young submitted that the Commission should accept Dr Harrington’s evidence;
(b)    Mr Young submitted that the Commission should also accept Dr Casikar’s evidence. Mr Young accepted that Dr Casikar did not consider the first MRI at the time of preparing his first report. However, Mr Young submitted that Dr Casikar did consider both MRI reports when preparing his later reports and at no stage did Dr Casikar resile from his opinion in relation to causation;
(c)    Mr Young accepted that various Certificates of Capacity certified the applicant having capacity for some type of work, but submitted that the certificates stated various work restrictions;
(d)    Mr Young submitted that the Certificates of Capacity are evidence that the applicant experienced ongoing pain symptoms that were the basis for the imposed work restrictions and that is consistent with Dr Harrington recording a history that the applicant reported that the pain did not go away;
(e)    Mr Young submitted that the applicant pleads only one injury, which is an aggravation of an underlying disease at L1/2, being damage to the annulus fibrosis;
(f)    Mr Young submitted that the evidence demonstrates that the main contributing factor was the work incident in November 2021 when the applicant drove a forklift over a pothole, which made the applicant vulnerable to other events and worsening pathology;
(g)    Mr Young submitted that it is not fatal to the applicant’s case that the applicant’s statement does not include all the relevant history because that history is proven by the medical evidence including the history recorded by treating practitioners, and
(h)    Mr Young submitted that the applicant relies on the authorities of Andersen v J & M Predl Pty Limited [2018] NSWWCCPD 40 and Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 in relation to causation and assumptions made by experts needing to be made in a “fair climate”.

FINDINGS AND REASONS

Did the applicant sustain injury arising out of or in the course of his employment, to which his employment was a substantial contributing factor or sustain aggravation, acceleration, exacerbation or deterioration of a disease, arising out of or in the course of employment and his employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease - ss 4(a) and 9A and (b)(ii) of the 1987 Act?

Section 9 of the 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.”
Section 9A of the 1987 Act states:
“(1)    No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)     The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f)the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(g)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(h)the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)     This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
In AV v AW,[49] Snell DP considered the expression, “main contributing factor” in s 4(b)(ii) and observed:
“The following may be taken from the above:
(a)The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b)The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c)In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
[49] [2020] NSWWCCPD 9.
The expression, “aggravation, acceleration, exacerbation or deterioration” of a disease for the purposes of s 4(b)(ii) of the 1987 Act was discussed by Windeyer J in Federal Broom Co Pty Ltd v Semlitch[50] (Semlitch):
“The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man's sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated.”[51]
[50] [1964] HCA 34; 110 CLR 626.
[51] Semlitch, at [640].
Justice Kitto in the same case found:
“Moffitt J. was right, I think, in saying: ‘There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism’. Accordingly if salt be applied to an open wound, making the would no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound.”[52]
[52] Semlitch, at [635].
A commonsense evaluation of the causal chain is required. The legal test of causation was set out by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[53] (Kooragang), where Kirby P (as his Honour then was) stated:
“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.”[54]
[53] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[54] Kooragang, at [461] (Sheller and Powell JJA agreeing).
His Honour stated 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.”
Although the High Court in Comcare v Martin[55] raised some concerns about the common-sense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the common-sense approach still has place in the application of the legislation to the present case.
[55] [2016] HCA 43, [42].
In Andersen v J & M Predl Pty Limited [2018] NSWWCCPD 40, Keating DCJ, President of the Workers Compensation Commission of NSW, considered the issue of causation. In that decision, Keating DCJ accepted that a factual finding that a novus actus interveniens occurred which broke the chain of causation was open on the evidence. Keating DCJ stated at [84]:
“84. As the appellant correctly identified in his submissions in reply before the Arbitrator, a novus actus interveniens occurs:
‘Where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, and the damage sustained include no element of aggravation of the earlier injury, the subsequent accident and the further injury should be regarded as causally independent of the first’.”
In Andersen, Keating DCJ stated at [87] that:
“In a consequential condition claim, causation is established if the alleged consequential condition results from the accepted compensable injury/condition. In this case the consequential condition did not result from the injury to the left shoulder and/or the consequential condition in the right shoulder, it resulted from Mr Andersen’s foot being caught while he was attempting to get out of the car.”
The standard of proof which I am required to apply is the balance of probabilities.
Principles regarding the discharge of the onus of proof were considered by President Keating in Department of Education & Training v Ireland[56] (Ireland). In order for the applicant to discharge the onus that he sustained the alleged injury, I “must feel an actual persuasion of the existence of that fact”.
[56] [2008] NSWWCCPD 134, [89], applying Nguyen v Cosmopolitan Homes [2008] NSWCA 246, per McDougall (McColl and Bell JJA agreeing) at [44]-[48].
The Court of Appeal in Nguyen v Cosmopolitan Homes[57] held that a tribunal of fact must be actually persuaded of the occurrence or existence of the fact before it can be found, and stated:
“(1)    A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)     Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)     Where circumstantial evidence is relied upon, it is not in general necessary that all reasonably hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found, and
(4)     A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[57] [2008] NSWC 246.
As noted by Deputy President Wood in Devenish v Kizlock Pty Ltd [2022] NSWPICPD 22 at [101]:
“In Wiki v Atlantis Relocations (NSW) Pty Ltd [[2004] NSWCA 174], Ipp JA observed (with Bryson JA AND Stein AJA agreeing) that, in order to reject a coherent and reasoned opinion expressed by a suitably qualified expert, it should be the subject of a coherent and reasoned rebuttal, unless it can be discounted for other cogent reasons. On the basis of the principles discussed in [Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43]:
(a)    the assumptions underpinning an expert opinion must provide a ‘fair climate’ to ground the expert’s opinion;
(b)    there does not need to be an exact correspondence between the assumed facts upon which the expert opinion is based and the facts proved in the case, and
(c)    it is sufficient to look at the overall context of the facts upon which the ultimate opinion is based.”
There is no dispute that the applicant sustained injury to the L5/S1 level of spine in the course of work when he drove a forklift over a pothole, with a date of injury of
8 November 2021. I accept that the incident produced a substantial jarring of the applicant’s spine which caused that injury. There is no dispute that injurious incident occurred in the course of the applicant’s work and that the applicant’s employment was the main and substantial contributing factor to the L5/S1 injury.
The issue that I am required to determine is whether, in that incident on 8 November 2021, the applicant also sustained injury to the L1/2 level of spine pursuant to ss 4(a) and 9A of the 1987 Act and or whether the applicant sustained aggravation, acceleration, exacerbation or deterioration of disease to the L1/2 level of spine pursuant to s 4(b)(ii) of the 1987 Act.
The pleadings did not clarify whether the applicant relied on ss 4(a) and 9A or s 4(b) of the 1987 Act. No clarity was provided by the dispute notices. However, in his submissions,
Mr Young indicated that s 4(b)(ii) of the 1987 Act was most applicable.
The evidence in this case is somewhat difficult. There are various deficiencies, inconsistencies and some obvious errors in both the lay evidence and the medical evidence.
The applicant’s statement stated that he was involved in a non-work-related motor vehicle accident in June 2022.[58] It appears that the stated date of the motor vehicle accident is an obvious error. Based on other evidence, it appears that the accepted date of the motor vehicle accident was on or about 8 June 2020 and prior to the injurious event on 8 November 2021.[59]
[58] ARD, page 1 at [8].
[59] ARD, page 103 at [11]; ARD, page 14; Reply, page 11.
I accept that there is no evidence that the applicant was symptomatic prior to the work incident on 8 November 2021.
The applicant’s statement stated that he felt immediate pain in his back at work on
8 November 2021 when the forklift that he was driving hit a pothole and that the pain had not eased after lying down for an hour and that he then needed to be driven home. However, I accept that the applicant’s statement did not include any evidence by the applicant that he experienced subsequent ongoing pain in the days and weeks following the work incident in November 2021. I also accept that the applicant’s statement did not provide any history in relation to the desk incident or waking in pain when on holidays.
However, there is treating medical evidence which records pain symptoms experienced by the applicant during the period that followed the work incident on 8 November 2021 and the MRI finding of L1/2 pathology in March 2022.
The applicant’s treating general practitioner, Dr Moreland, recorded on 8 December 2021,[60] that the applicant had presented with lower back pain following an injury at work whilst driving in a pothole. Dr Moreland stated that the applicant’s pain score on first presentation was 5/10 which improved to 3/10 on subsequent follow up and that sitting aggravated the pain. Dr Moreland noted that the applicant had a previously known baseline of pain due to a previous motor vehicle accident injury in the same area. Dr Moreland opined that the work injury had exacerbated the pre-existing condition. On 10 December 2021,[61] Dr Moreland recorded that the applicant had pain in his legs and lower back and had a slight improvement in leg pain after physiotherapy and was “overall movement much better since Tuesday”. On
[60] ARD, page 181.
[61] ARD, page 153.
[62] ARD, page 155.
[63] ARD, page 156.
[64] ARD, page 157.
[65] ARD, page 132.
3 February 2022,[62] Dr Moreland recorded that the applicant had seen the physiotherapist, had some restrictions and some improvement and that he was taking two weeks holidays from work from the following day. On 16 February 2022,[63] Dr Moreland recorded that the applicant was then experiencing “inconsistent pain behaviours at work can go from nil pain to excruciating pain”. On 2 March 2022,[64] Dr Moreland recorded a history of “2 - 3 week history of aggravated pain in lower back radiating to anterior thigh nil history of reinjury woke up with pain one morning”. On 2 March 2022,[65] Dr Moreland’s referral to Dr Coughlan sought an opinion and management in relation to “sciatica” following a work injury in November 2021 whilst driving a forklift. It stated that the applicant seemed “to be going along well until todays consult where current pain is 8/10. It appears he had a flare up about 2 – weeks ago and has been unable to work. The symptoms seem inconsistent with the MRI”.
The evidence of the treating physiotherapist recorded on 11 January 2022,[66] that the applicant’s “back has been improving over the last few weeks. He reports an intermittent 1-2/10 dull ache in his bilateral lower back and no leg pain currently”. On 1 February 2022,[67] the physiotherapist recorded that the applicant experienced “a flare-up of his low back and leg pain approximately 2 weeks ago. He has since improved and is now reporting an intermittent 1-2/10 dull ache in his bilateral lower back and no leg pain currently”. On
9 March 2022,[68] the physiotherapist recorded that the applicant;
“experienced a significant flare-up in early February with an unknown cause. His presentation appeared to be slightly different compared to his ongoing low back pain. Steven is currently experiencing constant pain in the bilateral lower back, and pain and numbness that wraps around the right hip. He has noticed some improvement in his symptoms in the last week with a change in treatment.”
[66] ARD, page 188.
[67] ARD, page 190.
[68] ARD, page 192.
The ErgoSmart Consulting report dated 26 April 2022[69] recorded that following the work incident in November 2021, the applicant had remained at work performing suitable duties until he “woke up one morning in February 2022 and could barely move due to severe low back pain symptoms” and he was off work since that date awaiting surgery.
[69] AALD of insurer dated 10 July 2023, page 1.
The various Certificates of Capacity do evidence that the applicant had capacity for some type of work for eight hours per day, five days per week (or normal hours) for at least significant periods between 10 November 2022 and 23 February 2022, however it was subject to various work restrictions.
Dr Coughlan’s reports dated 17 March 2022 and 8 April 2022 were clearly based on an incorrect history, referring to an excavator not a forklift and, more significantly, referring to an excavator incident “a few days ago” which is not consistent with any other evidence.
[70] Dr Coughlan’s report dated 13 May 2022, ARD, page 72.
[71] Dr Coughlan’s report dated 8 April 2022, ARD, page 70, item 2.
[72] Dr Coughlan’s report dated 8 April 2022, ARD, page 70, item 8.
[73] Report of Dr Coughlan dated 12 August 2022, ARD, page 74, item 2.
Dr Coughlan did however record that the applicant suffered a sudden onset of back pain at the time of the work incident in November 2021. Dr Coughlan reported that the applicant’s “pain settled after a few days with conservative treatment”[70] and also that “this seemed to settle after a few days and his back pain was not too severe”[71] and that the applicant “has been suffering the symptoms after the original injury which had subsequently resolve somewhat”.[72] In his report dated 12 August 2022, Dr Coughlan stated that the applicant’s “pain settled after a few days with conservative treatment but then flared up in March this year”. Dr Coughlan considered that the “flare up” of pain symptoms in March 2022 directly related to the injury sustained in November 2021. Dr Coughlan based his opinion on his understanding of the mechanism of injury, subsequent symptoms and imaging being “all closely correlated”.[73] Dr Coughlan’s report dated 12 August 2022 appears to be based on a correct history.

I accept Mr Grimes’ submission that there is some variation in the site and type of pain that is recorded by the various treating medical evidence, that was reported by the applicant since the work incident in November 2021. However, I note that there is also a significant degree of similarity. For example, both the MRI report dated 9 March 2022[74] and the MRI report dated 15 December 2021[75] noted a history of sciatica. It is apparent from the treating medical evidence that the applicant reported pain in his legs as well as his lower back from as early as 10 December 2021[76] and that he then intermittently complained of leg and lower back pain from time to time. The medical evidence also seems to fairly consistently show that the severe pain that the applicant experienced at the time of the work incident on 8 November 2021, settled somewhat with conservative treatment, however there were subsequent flare-ups of the back and leg pain. By 2 March 2022, Dr Moreland’s referral to Dr Coughlan noted that the applicant’s symptoms seemed inconsistent with the MRI scan taken on 15 December 2021.[77]
[74] ARD, pages 68, 76.
[75] ARD, page 67.
[76] ARD, page 153.
[77] ARD, page 132.
Mr Young submitted that the medical evidence discloses two events, which were both subsequent to the forklift incident at work in November 2021, when the applicant experienced significant L1/2 pain symptoms, being:
(a) waking up in pain, having slept awkwardly when the applicant was on holidays, and
(b) experiencing pain, when sitting at his desk at work.
Dr Harrington’s evidence referred to those two events. [78] However as noted above, the applicant has not provided any direct evidence to that effect. In addition, the medical evidence is somewhat unclear in relation to those particular events, particularly in relation to when they occurred.
[78] ARD, page 81.
However, it does appear clear from the treating medical evidence as a whole, and I accept, that the applicant did experience “flare-ups” of pain on a sporadic basis subsequent to the work incident in November 2021.
The MRI taken on 9 March 2022[79] showed a large L1/2 right paracentral disc extrusion which compresses the right L1 nerve root and probably also other lumbar nerve roots towards the central canal. Those features had not been apparent on the MRI taken on 15 December 2021.[80]
[79] ARD, pages 68, 76.
[80] ARD, page 67.
Mr Grimes submitted that the significant difference in pathology at the L1/2 level shown on those respective MRI scans, in particular the failure of the early MRI to show any pathology which justifies the applicant’s symptomatology, supports a finding that the L1/2 pathology was not caused by the work incident on 8 November 2021.
However, Dr Harrington provided a clear explanation for that inconsistency in the two MRI scans. Dr Harrington stated that the first MRI didn’t include high enough sagittal cuts, probably because the clinical history on the request form indicated sciatica (which probably wasn’t correct). [81] Dr Casikar did not provide any opinion specifically in relation to whether the first MRI included high enough sagittal cuts. I therefore accept the well reasoned and clear explanation provided by Dr Harrington as to the differing findings on MRI.
[81] ARD, pages 82 – 83.
Only the reports of the two MRI scans are in evidence before the Commission. As I noted above, both MRI reports noted a history of sciatica. I note that the first MRI on 15 December 2021 was an MRI of the lumbar spine only, however the second MRI on 9 March 2021 was an MRI of the lumbar spine and the right hip. Whilst it is probable (based upon my acceptance of Dr Harringtons opinion) that the first MRI scan did not include high enough sagittal cuts, I note that the reports of both the scans did both report on L1/2 pathology.
Turning to the independent medical expert evidence more specifically in relation to causation, Dr Harrington opined that the L1/2 pathology shown on the MRI on 9 March 2021 was caused by the work incident in November 2021. In one part of his report dated
[82] ARD, pages 82.
[83] ARD, page 83.
[84] ARD, page 84.
[85] ARD, page 84.
[86] ARD, page 79.
23 January 2023, Dr Harrington stated his opinion that “Mr Delaney seems to have suffered a degenerative disc prolapse at L1/2 on 8 November 2021 when the forklift hit a pothole and jarred his back”.[82] Dr Harrington noted that the applicant’s pain symptoms “never really settled” following the injury on 8 November 2021, there were a couple of significant “flare-ups” of pain and the applicant reported that the subsequent pain was always in the same location.[83] However later in the report, Dr Harrington stated that “The supposition is that he damaged the L1/2 disc and later suffered a prolapse of that level, which is consistent with the history and MRI findings”.[84] I note that there seems to be some potential inconsistency in those two descriptions given by Dr Harrington in relation to the mechanism of injury, but it seems to me that the latter statement was intended to be a more detailed explanation of the mechanism of injury. In any event, Dr Harrington maintained that the forklift incident at work in November 2021 is causally related to the prolapse at L1/2 and the microdiscectomy surgery.[85] Dr Harrington stated that there was some disc degeneration at L1/2 however the applicant was asymptomatic prior to the forklift incident at work in November 2021.[86]
Dr Casikar initially also diagnosed a disc prolapse of the L1/2. In his initial report dated
[87] Reply, pages 56 – 57.
[88] Reply, page 56.
[89] Reply, page 56.
25 March 2022, Dr Casikar stated that in his opinion, the applicant’s employment was a substantial contributing factor to the injury. [87] Dr Casikar described a mechanism of injury being that the applicant probably damaged the annulus fibrosis in the forklift incident at work in November 2021, and subsequently over a period of time a disc prolapse occurred due to the defect.[88] Dr Casikar stated that the “fact that the disc protrusion was obvious a few weeks later is consistent with the normal mechanism”. Dr Casikar stated that “a delay of a couple of weeks is acceptable because very often a disc prolapse does not occur immediately, it takes some time to develop”.[89] That opinion was clearly based on an incorrect history as there was, in fact, a delay of approximately thirteen weeks between the work incident on 8 November 2021 and the L1/2 pathology shown on the second MRI scan on 9 March 2022.
In supplementary reports dated 26 April 2022 and 9 March 2022, Dr Casikar considered that the applicant appeared to have returned to work on 15 December 2021 and that there was a delay of some fifteen weeks between the work incident on 8 November 2021 and the L1/2 pathology shown on the second MRI scan on 9 March 2022. On that basis Dr Casikar opined that the disc prolapse was “not related to the old injury”[90] and was “very likely a new injury. If there was no new injury it is possible that the disc prolapse was spontaneous”.[91] Dr Casikar stated that, in his opinion, the disc prolapse is not related to the workplace injury if it took 15 weeks to occur after the injury.[92] Dr Casikar did not provide any explanation of how the applicant’s disc could prolapse spontaneously.
[90] Reply, page 59.
[91] Reply, page 59.
[92] Reply, page 61.
The length of the delay between the work incident on 8 November 2021 and the finding of the L1/2 pathology on the MRI scan on 9 March 2022 and that the applicant’s pain symptoms settled such that he returned to work during that time seeks to be the compelling reason for Dr Casikar to change his opinion in relation to causation. Admittedly the delay in that regard seems to be closer to thirteen weeks rather than fifteen weeks as suggested by Dr Casikar, however in any event it is a significant time period. However, as I noted above it appears from the treating medical evidence, and I accept, that whilst the pain symptoms did settle somewhat during that period, he nevertheless did continue to have pain symptoms with “flare-ups” on a sporadic basis. Certainly, although the applicant was certified as having some capacity to work during that period, he remained subject to numerous work restrictions. That appears to demonstrate continuing symptoms and restrictions, with the underlying pathology admittedly not apparent on the first MRI scan.
Dr Casikar’s alternative explanation for the L1/2 pathology shown in the second scan on
9 March 2022 is that it was a new injury or a spontaneous disc prolapse.
There is no evidence of any other particular injurious event, apart from the work incident on
8 November 2021. That does not appear to be in dispute.
Dr Casikar does not assist me in providing any explanation how a spontaneous disc prolapse could occur. No other medical practitioner nor the other independent medical expert has suggested a spontaneous disc prolapse as a mechanism of injury. In the context of the evidence as a whole, it seems to me that a completely spontaneous disc prolapse is a significantly less likely mechanism of injury.
I accept that the medical evidence is not straightforward. However, considering the evidence as a whole, I nevertheless do feel a real sense of persuasion and I prefer and accept the evidence of Dr Harrington in relation to the causation of the applicant’s L1/2 pathology. I believe that Dr Harrington’s opinion provides a considered, logical and most likely explanation for the applicant’s L1/2 pathology and the applicant’s symptoms and recorded history and as such it is persuasive.
I prefer Dr Harringtons opinion above Dr Casikar as Dr Casikar has not considered Dr Harrington’s explanation as to the differing MRI results and has not explained how a spontaneous disc prolapse could occur in the applicants circumstances. As noted above, there is no evidence of any other injury and, given the recorded history, it seems to me to be a significantly more likely course of events than a “spontaneous” disc prolapse. On that basis, I am satisfied and accept that in the work incident on 8 November 2021, the applicant damaged the L1/2 disc which progressed to degenerative disc prolapse of that level.
I accept Dr Harrington’s evidence that there was some disc degeneration at the L1/2 level, which is not disputed. On that basis, I consider that it would fall within the definition of “disease process” for the purposes of s 4(b)(ii) of the 1987 Act.
Having carefully considered the evidence as a whole and for all the reasons given above, I am satisfied on the balance of probabilities that the applicant sustained injury on
8 November 2021 to the L1/2 disc which developed into degenerative disc prolapse of that level in the nature of an aggravation, acceleration, exacerbation and deterioration of a disease process in the course of his employment and to which his employment was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act.
I make these findings on the basis of the progression of the initial injury, I do not make the findings on the basis of a consequential injury or ‘new injury’.

Is the medical or related treatment reasonably necessary as a result of an injury, pursuant to ss 59 and 60 of the 1987 Act?

Subsection 60(1) of the 1987 Act relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1)If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
...”

Is the treatment medical or related treatment?

The applicant seeks compensation for expenses of and related to past medical, hospital and related expenses, which includes costs of right L1-2 microdiscectomy performed on
14 June 2022.
These are clearly “medical or related treatment (other than domestic assistance)” within the meaning of s 60(1)(a) of the 1987 Act.

Is the treatment reasonably necessary?

In Diab v NRMA Ltd,[93] Roche DP, referring to the decision in Rose v Health Commission (NSW),[94] set out the test for determining if medical treatment is reasonably necessary as a result of a work injury:[95]
“The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC2; (1986) 2 NSWCCR 32 (Rose) where his Honour said, at
48A-C:
‘3.Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and tis place in the usual medical armoury of treatments for the particular condition’.”
[93] [2014] NSWWCCPD 72.
[94] [1986] NSWCC2; (1986) 2 NSWCCR 32.
[95] [2014] NSWWCCPD 72, at [76].
Roche DP[96] also noted that the Commission has generally referred to and applied the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service:[97]
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[96] [2014] NSWWCCPD 72, at [78].
[97] [1997] NSWCC 1; 14 NSWCCR 233.
Roche DP stated:[98]
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply ...”
[98] [2014] NSWWCCPD 72, at [86].
Roche DP found:[99]
[99] [2014] NSWWCCPD 72, at [88]-[89].
“In the context of s 60 the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a)the appropriateness of the particular treatment;
(b)the availability of alternative treatment, and its potential effectiveness;
(c)the cost of the treatment;
(d)the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”

Appropriateness

Having regard to the evidence of the applicant in the context of the medical evidence, I accept that the applicant has significant ongoing right elbow symptomatology.
There is consistent medical evidence that the right L1-2 microdiscectomy on 14 June 2022 was reasonably necessary and that is not disputed.

Availability of alternative treatment and its effectiveness

There is no evidence of any other significant alternative treatment which would likely provide effective treatment of the applicant’s L1/2 pathology and symptoms.

Cost of the treatment

No issue has been taken in relation to the costs of the treatment.

Actual or potential effectiveness of the treatment

Dr Coughlan reported that the right L1-2 microdiscectomy on 14 June 2022 was successful and effective to treat the applicant’s symptoms and this was accepted by Dr Harrington and Dr Casikar.

Acceptance by medical experts of the treatment

Dr Coughlan reported that the right L1-2 microdiscectomy on 14 June 2022 was successful and effective to treat the applicant’s symptoms and this was accepted by Dr Harrington and Dr Casikar.
There is no significant evidence which challenges the appropriateness of the past treatment which is included in the updated schedule of expenses.
Having considered the evidence in the context of the criteria referred to in Diab and Rose, I am satisfied that the past treatment was reasonably necessary.

Does the need for the treatment arise as a result of a work injury?

In Murphy v Allity Management Services Pty Ltd[100] Roche DP stated at [57] and [58]:

“… a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]-[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[100] [2015] NSWWCCPD 49 at [57].

In Watts, the High Court discussed the evidentiary onus where a defendant relies on evidence of some alternate cause of a plaintiff’s disability. In Lamont-Salter v Qube Ports Pty Ltd [2021] NSWPICPD 15 at [40] to [43], Snell DP considered Watts and observed that it and other decisions make it clear that the ultimate persuasive onus remains with the applicant.
Having regard to my findings in relation to the injury above, I am satisfied that the need for the past treatment including the right L1-2 microdiscectomy performed on 14 June 2022 arose as a result of a work injury.

Does the applicant have total or partial incapacity for work resulting from an injury and, if so, what is the extent and quantification of any entitlement to weekly compensation, pursuant to s 33 of the 1987 Act?

Section 33 of the 1987 Act states:
“33 Weekly compensation during total or partial incapacity for work
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
Note—
Chapter 3 of the 1998 Act (Workplace injury management) provides that, if a worker fails unreasonably to comply with a requirement of that Chapter after being requested to do so by an insurer, the worker has no entitlement to weekly payments of compensation for the period that the failure continues.”

Section 37 of the 1987 Act states:
“37    Weekly payments during second entitlement period (weeks 14–130)
(1)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3)    The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a)80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.”
The applicant claims weekly compensation pursuant to ss 33 and 37 of the 1987 Act, in respect of the period from 12 May 2022 to 19 September 2022.
There is no dispute in relation to the applicant’s work capacity.
The applicant’s uncontested evidence is that on 14 June 2022, he underwent L1/2 microdiscectomy surgery and that he had no capacity to work for a period of four weeks.
The applicant stated that: from 18 July 2022 to 1 August 2022, he was certified as having capacity to work for four hours per day, three days per week, with restrictions; from 2 August 2022 to 8 September 2022, he was certified as having capacity to work for eight hours per day, three days per week, with restrictions; from 9 September 2022 to 5 October 2022, he was certified as having capacity to work eight hours per day, five days per week, with restrictions; and on 6 October 2022, he was certified fit for pre-injury work.
On that basis, I accept that the applicant had:
(a) no current work capacity resulting from an injury from 12 May 2022 to
17 July 2022, and
(b) current work capacity resulting from an injury from 18 July 2022 to
19 September 2022.

The award to be entered in respect of weekly compensation

On the basis of the applicant’s evidence, which is not in dispute, I accept that the applicant had:
(a)    from 12 May 2022 to 17 July 2022, no current work capacity;
(b)    from 18 July 2022 to 1 August 2022, current work capacity and returned to work for less than 15 hours per week (being 4 hours per day, 3 days per week);
(c)    from 2 August 2022 to 8 September 2022, current work capacity and returned to work for not less than 15 hours per week (being 8 hours per day, 3 days per week), and
(d)    from 9 September 2022 to 19 September 2022, current work capacity and returned to work for not less than 15 hours per week (being 8 hours per day, 5 days per week).
There is no dispute that the applicant’s PIAWE at the date of injury was $1,838.70, with ability to earn/current weekly earnings of $1,342.04 in respect of the claimed period.
I calculate the applicant’s entitlement to weekly compensation pursuant to s 37(1) of the 1987 Act as follows:

Date from	Date to	PIAWE	Rate Claimed	Weekly Amount	Actual Earnings	Weekly Entitlement
12.05.22	17.07.22	$1,838.70	80%	$1,470.96	Nil	$1,470.96
18.07.22	01.08.22	$1,838.70	80%	$1,470.96	$1,342.04	$128.96
02.08.22	19.09.22	$1,838.70	95%	$1,746.77	$1,342.04	$404.77

On that basis, I consider that it is appropriate to make an award in favour of the applicant for payment of weekly compensation pursuant to s 37(1) of the 1987 Act:
(a)    in the amount of $1,470.96 per week from 12 May 2022 to 17 July 2022;
(b)    in the amount of $128.96 per week from 18 July 2022 to 1 August 2022, and
(c)    in the amount of $404.77 per week from 2 August 2022 to 19 September 2022.
Counsel’s submissions did not specifically address the calculation of weekly compensation entitlements. In the circumstances, I consider that it is appropriate to direct that the parties have 14 days liberty to apply with respect to the calculation of the weekly compensation amounts referred to above.

SUMMARY

On that basis, I determine that:
(a) The applicant sustained injury on 8 November 2021 to the L1/2 disc which progressed to a degenerative disc prolapse of that level in the nature of an aggravation, acceleration, exacerbation and deterioration of a disease process in the course of his employment and to which his employment was the main contributing factor pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act);
(b) The past treatment referred to in the applicant’s schedule of expenses including the right L1-2 microdiscectomy performed on 14 June 2022 is reasonably necessary as a result of injury on 8 November 2021 within the meaning of s60 of the 1987 Act;
(c) The applicant had, as a result of injury on 8 November 2021:
(i)no current work capacity from 12 May 2022 to 17 July 2022;
(ii)current work capacity and returned to work for less than 15 hours per week from 18 July 2022 to 1 August 2022;
(iii)current work capacity and returned to work for not less than 15 hours per week from 2 August 2022 to 8 September 2022, and
(iv)current work capacity and returned to work for not less than 15 hours per week from 9 September 2022 to 19 September 2022.
On that basis, I order that:
(a) The respondent to pay the applicant medical treatment and related expenses on production of accounts, receipts and/or Medicare Notice of Charge pursuant to s 60 of the 1987 Act;
(b) The respondent to pay the applicant weekly compensation pursuant to s 37(1) of the 1987 Act as follows:
(i)in the amount of $1,470.96 per week from 12 May 2022 to 17 July 2022;
(ii)in the amount of $128.96 per week from 18 July 2022 to 1 August 2022,
(iii)in the amount of $404.77 per week from 2 August 2022 to 19 September 2022, and
(a) Liberty to apply within 14 days in respect of calculation of the weekly compensation amounts.