Do v Lucky Thanh Transport Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Do v Lucky Thanh Transport Pty Ltd [2025] NSWPIC 340
APPLICANT:	Van Thanh Do
RESPONDENT:	Lucky Thanh Transport Pty Ltd
MEMBER:	Fiona Seaton
DATE OF DECISION:	16 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments, medical expenses and lump sum compensation pursuant to section 66; whether applicant sustained injuries to his spine; left knee and bilateral shoulders; Held – applicant sustained disease injuries to his spine, left knee and left shoulder and a consequential right shoulder condition on deemed date of injury 21 August 2021; weekly payments and medical expenses payable; matter remitted to President for referral to a Medical Assessor to assess the degree of permanent impairment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained disease injuries to his lumbar spine, thoracic spine, cervical spine, left knee and left shoulder for which his employment was the main contributing factor within the meaning of s 4(b) of the Workers Compensation Act 1987 (1987 Act). 2. The applicant has sustained a consequential right shoulder condition as the result of his left shoulder injury. 3. The deemed date of the applicant’s injury is 21 August 2021. 4. The applicant is entitled to the payment of weekly compensation from 21 August 2021 to 17 February 2024 at the pre-injury average weekly earnings rate of $1,001.26 subject to indexation in accordance with ss 36 and 37 of the 1987 Act. 5. The applicant is entitled to the payment of reasonably necessary medical or related expenses as a result of his injuries in accordance with s 60 of the 1987 Act on production of accounts, receipts and/or Medicare notice of charge. 6. The matter is to be remitted to the President for referral to a Medical Assessor for the assessment of whole person impairment of the applicant’s lumbar spine, left lower extremity (knee), left upper extremity (shoulder) and consequential right upper extremity (shoulder) in accordance with s 66 of the 1987 Act. The Commission orders: 7. The respondent to pay the applicant weekly compensation at the pre-injury average weekly earnings rate of $1,001.26 subject to indexation as follows; (a) 21 August 2021 to 30 September 2021 at $1,001.26 x 95% or $951.20, less current weekly earnings of $798.82, being $152.38 pursuant to s 36(2) of the 1987 Act; (b) 1 October 2021 to 30 October 2021 at $1,001.26 x 1.0119 or $1,013.17 rounded to $1,010 x 95%, or $959.50, less current weekly earnings of $798.82, being $160.68 pursuant to s 36(2) of the 1987 Act; (c) 1 November 2021 to 20 November 2021 at $1,010 x 95%, or $959.50, less current weekly earnings of $923.08, being $36.42 pursuant to s 36(2) of the 1987 Act; (d) 21 November 2021 to 30 March 2022 at $1,010 x 95%, or $959.50, less current weekly earnings of $923.08, being $36.42 pursuant to s 37(2) of the 1987 Act; (e) 1 April 2022 to 30 September 2022 at $1,010 x 1.0184 or $1,028.58 rounded to $1,030 x 95%, or $978.50, less current weekly earnings of $923.08, being $55.42 pursuant to s 37(2) of the 1987 Act; (f) 1 October 2022 to 30 March 2023 at $1,030 x 1.0337 or $1,064.71 rounded to $1,060 x 95%, or $1,007, less current weekly earnings of $790.38, being $216.62 pursuant to s 37(2) of the 1987 Act; (g) 1 April 2023 to 19 September 2023 at $1,060 x 1.0414 or $1,103.88 rounded to $1,100 x 95%, or $1,045, less current weekly earnings of $790.38 being $254.62 pursuant to s 37(2) of the 1987 Act; (h) 20 September 2023 to 30 September 2023 at $1,100 x 80% or $880 less current weekly earnings of $790.38 being $89.62 pursuant to s 37(3) of the 1987 Act, and (i) 1 October 2023 to 17 February 2024 at $1,100 x 1.0237 or $1,126.07 rounded to $1,130 x 80%, or $904, less current weekly earnings of $790.38 being $113.62 pursuant to s 37(3) of the 1987 Act. 8. The parties have 14 days liberty to apply with respect to the calculation of indexation of the weekly compensation amounts referred to above. 9. The respondent to pay the applicant’s reasonably necessary medical or related expenses arising from his injuries pursuant to s 60 of the 1987 Act on production of accounts, receipts and/or Medicare notice of charge. 10. The matter be remitted to the President for referral to a Medical Assessor in accordance with s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: Date of injury: 21 August 2021 (deemed). Body systems/parts: lumbar spine, left lower extremity (knee), left upper extremity (shoulder) and right upper extremity (shoulder). Method of assessment: whole person impairment. 11. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; (c) applicant’s Application to Lodge Additional Documents dated 1 May 2025 and attached documents; (d) respondent’s Application to Lodge Additional Documents dated 18 June 2025 and attached documents; (e) respondent’s Wages Schedule dated 18 June 2025, and (f) applicant’s Application to Lodge Additional Documents dated 23 June 2025 and attached documents aside from the supplementary report of Dr Matthew Giblin dated 27 May 2025.

STATEMENT OF REASONS

BACKGROUND

The applicant Van Thanh Do is a truck driver who bought his own truck and set up the respondent company in 2008.
The applicant’s work involved driving a truck to pick up and deliver products all over Sydney. He lifted boxes of up to 30kg from his truck onto a trolley and pushed it to the shop or warehouse. He initially worked 10 hours a day and five days a week.
Pain and discomfort from the nature of the applicant’s work started in his upper back, neck and left shoulder, left arm and hand in about March 2019.
The applicant made a claim for workers compensation entitlements on 20 August 2020. The insurer requested further information which was not provided and the claim was disputed on 3 December 2020.
A review under s 287A of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) was sought by the applicant on 21 March 2021. The outcome of the internal review on 12 April 2021 maintained the decision to dispute liability for the injury.
The applicant requested a further review on 25 June 2021 and the dispute was maintained on 9 July 2021.
By August 2021 the applicant could not cope with the pain. He reduced his hours to eight hours a day and four days a week.
The applicant made a claim for weekly benefits compensation and medical treatment expenses on 31 January 2022.
The applicant stopped work on 19 September 2023 and made a new claim on
19 February 2024 for weekly benefits compensation and medical expenses. The applicant claimed lump sum compensation for permanent impairment on 28 June 2024.
A notice issued on 16 January 2025 under s 78 of the 1998 Act disputed the applicant’s entitlement to permanent impairment lump sum compensation and to weekly payments and medical expenses.
An Application to Resolve a Dispute (ARD) was lodged in the Personal Injury Commission (Commission) on 25 March 2025 claiming weekly benefits, medical treatment expenses and lump sum compensation for permanent impairment.
The dispute was listed for conciliation conference/arbitration hearing on 25 June 2025.

ISSUES FOR DETERMINATION

The parties agree the following issues remain in dispute:
(a) whether the applicant sustained injuries to his lumbar spine, thoracic spine, cervical spine, left knee and/or bilateral shoulders as a result of employment pursuant to s 4(b) of the Workers Compensation Act 1987 (1987 Act);
(b) the extent and quantification of the applicant’s entitlement to weekly compensation from 9 February 2021 to date and continuing pursuant to ss 36, 37 and 38 of the 1987 Act, and
(c) whether the applicant is entitled to the payment of medical expenses pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 25 May 2025 in Sydney. Mr Stephen Hickey appeared for the applicant instructed by Ms Gia Guo, legal representative. Mr Daniel Stiles appeared for the respondent instructed by Mr Scott Murray, legal representative. Ms Sarah Aiken, interpreter was present and Mr McCotter was also present.
At the preliminary conference held on 7 May 2025 the respondent advised it did not intend to reply on the report of A/Prof Miniter dated 28 March 2024 due to the operation of cl 44 of the Workers Compensation Regulation 2016.
During conciliation it was agreed that if the first issue in dispute is resolved or determined in favour of the applicant the matter is to be remitted to the President for referral to a Medical Assessor to assess whole person impairment. The applicant confirmed the claim for weekly benefits compensation is confined to ss 36 and 37 of the 1987 Act.
The respondent’s Application to Lodge Additional Documents dated 18 June 2025 and its Wages Schedule were admitted. The applicant’s Application to Lodge Additional Documents dated 23 June 2025 was admitted aside from the supplementary report of Dr Matthew Giblin dated 27 May 2025.
I am satisfied 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 the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

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;
(c)    applicant’s Application to Lodge Additional Documents dated 1 May 2025 and attached documents (ALAD 1);
(d)    respondent’s Application to Lodge Additional Documents dated 18 June 2025 and attached documents (ALAD 2);
(e)    respondent’s Wages Schedule dated 18 June 2025, and
(f)    applicant’s Application to Lodge Additional Documents dated 23 June 2025 and attached documents aside from the supplementary report of Dr Matthew Giblin dated 27 May 2025 (ALAD 3).

Oral evidence

No application was made to call oral evidence.

Applicant’s evidence

The applicant relies on a statement signed on 11 October 2023.
He obtained his truck drivers licence in 2001 and was employed as a truck driver for about seven years before he bought his own truck and set up the respondent company in 2008. He was the only employed truck driver.
Between 2008 and 2010 he performed work for BKK delivering Asian groceries from their Smithfield warehouse to small grocery stores mainly in Cabramatta. He lifted goods off the pallets that had been loaded into his truck including bags of rice up to 25kg. The truck was above his waist level and he used a step to get on and off the truck, putting pressure on his knees.
The applicant lifted bags and boxes off the truck and loaded them onto a trolley. He pushed the trolley to the grocery store to deliver goods to the storeroom.
The stores are very small, filled with goods and they were difficult to walk through. The applicant often had to leave the trolley at the front and lift and carry goods through a small shop, twisting and turning his body to get past rows of products sometimes stacked on the ground.
He estimates he climbed on and off his truck front and back about 35 to 40 times a day and delivered three to four tonnes of goods every day.
There were six steel gates to keep the products in the back of the truck which the applicant had to open when accepting or making a delivery. To unlock the gate he grabbed it with both his hands and pulled it with a lot of force and effort to move it to the side. To close it he had to move it back, lift it up and put it down to lock it into place. Lifting the gate required a lot of force and effort.
After one or two years of doing this work the applicant started to have low back pain and left knee pain.
He suffered a right hand injury at work on 2 July 2010 and was unable to work for about a year.
In about 2011 the applicant started driving for Border in an Isuzu 6-ton truck. He picked up goods and products and delivered them all over Sydney. The goods were all different and included boxes of tinned beans, tiles, pipes, toilets, sinks, pumps and dryers weighing between 2 to 3kg up to 30kg.
Border’s employees put the pallets of goods on the applicant’s truck. He then had to lift them off the truck on to a trolley and push them to the shop or warehouse. At times the applicant had to lift and move around goods packed in front of goods he had to deliver.
When the goods were too heavy he asked the customer for help but often had to do it himself. He did not want to ask for help too often or the customer would complain. When there were stairs and he could not use the trolley he had to lift and carry the goods by hand.
With Border he had to get in and out of the truck less but it was still around 20 to 30 times a day. He estimates he delivered to about 15 customers a day, about 1.5 tonnes a day, working 10 hours a day and five days a week.
The applicant had occasional pain in his left elbow, low back and left knee but he was able to keep working. He would have pain for a few days and it would gradually get better. He took painkillers and sometimes he saw Dr Jonathon Tuan Le, his general practitioner.
From about March 2019 the applicant started to notice pain and discomfort in his left upper back, neck and going down his left shoulder, left arm and hand. This was very bad when he operated the gearstick with his left arm.
Dr Le referred the applicant for scans of his left shoulder and prescribed painkillers. Dr Le gave him acupuncture and referred him for physiotherapy. This allowed him to keep working despite very bad pain.
Dr Le also referred the applicant to Dr McKechnie who arranged for an MRI, prescribed Lyrica, and referred him for two injections for his neck. The injections helped for two to three months but then the pain came back.
The applicant kept working full hours to about August 2021 when he had to reduce his hours to eight a day and four days a week when he could not cope with the pain anymore. There were days he could not work at all due to pain.
His accountant did not reduce his wage to reflect the reduced hours as it was his own company. The applicant did not really understand what his accountant was doing.
To spare the pain in his left shoulder the applicant was using his right arm much more. When he pulled a curtain to cover the stock in his truck he used his right arm and shoulder to pull the curtain with force because of the pain in his left shoulder. He used his left arm only for support.
The applicant used both arms to pull the trolley off the truck. He put more weight on his right arm and shoulder as he pulled it off. He also had to carry boxes of goods and products weighing about 10 to 15 kg. The applicant leaned the box more on his right arm and shoulder to take the weight off his left shoulder.
The applicant started to feel pain in his right shoulder and told Dr Le about it in early January 2023. He had another scan in his neck and back on 16 March 2023.
He attended a meeting at Border Express on 19 September 2023 and was told he could not come back to work until his doctor said he was fit for normal duties, and he has not worked since.
Following an X-ray of the right shoulder on 7 October 2023 the applicant had acupuncture and about 10 physiotherapy sessions, the last session in about June 2023.
The applicant feels on and off pain in his left shoulder blade and arm just behind his neck, which increases when he lifts his arm up and down.
He feels more pain in his right shoulder blade and arm, also just behind his neck, and the pain travels down his right arm.
He feels back pain every day. He wore a belt to cope with his work duties when he had a lot of back pain. This is worse when he sits in his truck and when he drives, bends and lifts, but he just dealt with it because he had to work. His left knee is painful sometimes.
The applicant was referred to Dr Lieu who referred him for scans and medication. He took medication including Panadol.

Claim form dated 19 February 2024

The applicant describes his tasks between 2008 and 19 September 2019 as lifting bags and boxes off the truck and pallets, stepping on and off a truck, lifting and placing a trolley onto the ground, pushing a trolley, lifting and carrying heavy bags of rice and boxes of goods through small shops, which required turning and twisting of his body.
This affected his left trapezius, left shoulder, left elbow, back, left knee, thoracic spine/T4 syndrome, neck, right shoulder and right trapezius.
The applicant stopped work on 26 September 2023. He is the director of his employer’s company and earned $23 per hour for 38 hours a week with usual pre-tax weekly earnings of $1,100.

Permanent impairment claim form dated 28 June 2024

The applicant claimed 26% whole person impairment of the lumbar spine, left lower extremity and both upper extremities. The reports of Dr Matthew Giblin dated 18 October 2022 and
8 May 2024 are attached.

Dr Matthew Giblin, independent orthopaedic surgeon

On 7 June 2021 Dr Giblin provides his opinion that the applicant’s left trapezius, shoulder and upper limb symptoms are due to the nature and conditions of his employment and he is suffering from a T4 syndrome, a soft tissue injury which presents with the current symptoms.
The nature and conditions of his employment involves a lot of lifting, use of a gearstick and a steering wheel which created this group of symptoms.
Dr Giblin considered in the absence of any investigations the applicant most likely had an aggravation of underlying degenerative change in his low back due to prolonged sitting and lifting associated with driving and the nature and conditions of his employment.
The applicant had symptoms of chondromalacia patellae in his left knee pain due to the nature and conditions of his employment, basically due to the use of the clutch and climbing in and out of his truck.
On 18 October 2022 Dr Giblin reports the applicant is still working on light duties doing less hours, only 32 hours a week on four days a week.
Dr Giblin’s opinion basically remains the same as in his previous report; the applicant’s left trapezius and shoulder pain and upper limb symptoms are due to the nature and conditions of his employment and he is suffering from a T4 syndrome, his low back pain is due to an aggravation of underlying degenerative change, and his left knee pain, although the MRI shows a tear of his medial meniscus, has clinical symptoms of chondromalacia patellae.
The assessment of whole person impairment is made of 5% for the lumbar spine, 2% for the left knee and 5% for the left shoulder, totalling 12%.
On 8 May 2024 Dr Giblin reports the applicant has in addition started to develop right shoulder pain due to overuse and protection of the left and he has now developed frozen right shoulder.
Dr Giblin’s opinion remains the same as in his previous report and there have been no major changes in his condition since Dr Giblin last saw him.
The applicant remains unfit for work that involves repetitive bending, heavy lifting or prolonged sitting or standing or work above the level of the shoulder.
The assessment of whole person impairment is 5% for the lumbar spine, 2% for the left knee, 12% for the right shoulder and 9% for the left shoulder, totalling 26%.
On 8 May 2024 Dr Giblin also comments on Dr Machart’s report of 16 January 2024.
Dr Giblin confirms the applicant complained to him of pain other than in the right upper extremity and knee, and refers to a recent pain diagram filled out by the applicant. This diagram shows pain at both shoulders and arms, down the spine and in the left knee.

Dr Giblin notes that symptoms do not always resolve once a person stops working. Sometimes the aggravation persists and the applicant also has an acceleration of degenerative changes due to the nature and conditions of his employment, and ceasing work will not necessarily stop those symptoms.
Dr Giblin thinks its unlikely considering the nature and conditions of the employment that there are age-related degenerative changes which became manifest during the course of his work.

Dr Simon McKechnie, treating neurosurgeon

On 21 January 2021 Dr McKechnie reports to Dr Le that the applicant in the course of his work in around March 2019 developed the onset of neck pain in the cervical and upper thoracic region on the left side and intermittent pain and numbness through the left arm.
An MRI of the cervical spine demonstrates broad-based C5/6 disc protrusion without nerve root impingement, broad based disc protrusion at C6/7 with moderate to severe foraminal stenosis and C7 nerve root compression, as well as moderate left C7/T1 disc protrusion impinging upon the left C8 nerve root. He prescribed Lyrica and the applicant should continue with physiotherapy and exercises.
On 15 March 2021 Dr McKechnie reports the Lyrica has been unsuccessful, the applicant is still reporting neck pain radiating through the left arm towards the hand, and he referred him for CT guided left C7 and C8 perineural cortisone injections.
On 27 May 2021 the applicant was clinically unchanged and Dr McKechnie provided a new referral for the injection.
On 14 November 2023 Dr McKechnie reports that the applicant presents with a history of neck pain now radiating through the contralateral arm, across the right shoulder and arm towards the hand, consistent with a cervical radiculopathy. There are no obvious neurological deficits on examination.
A follow-up MRI demonstrates multiple areas of bilateral foraminal stenosis and on the right side there is right C7 nerve root impingement.
On 9 January 2024 Dr McKechnie reports the applicant is still complaining of neck pain radiating through the right arm consistent with the MRI findings. He recommends ceasing Lyrica and refers him for a C7 cortisone injection.
On 12 March 2024 the applicant has noticed a moderate improvement following the C7 perineural cortisone injection but there is still residual pain and intermittent numbness radiating through the right upper limb. Conservative management was to continue.

Mr Simon Ma, physiotherapist

Mr Ma reports to Dr Le on 20 October 2020. The applicant had attended seven sessions since his initial consultation on 29 August 2020.
The applicant presents with cervical disc prolapse with nerve root impingement, upper back pain and left shoulder pain - supraspinatus tendinosis.
The applicant’s current work capacity is eight hours a day and five days a week on suitable duties.

Radiological reports

The X-ray of the applicant’s thoracic spine and chest of 1 June 2019 comments on degenerative endplate osteophytes in the lower thoracic spine.
The X-ray of the applicant’s left shoulder of 24 August 2019 reports on mild AC and glenohumeral joint arthropathy, there may be obliteration of the subacromial space which may represent supraspinatus pathology better assessed on ultrasound.
An ultrasound of the left shoulder on 7 September 2019 concludes there is subdeltoid bursitis with evidence of mechanical impingement and an articular sided partial tear of supraspinatus measuring 4 by 8mm.
The report of the regional bone scan of 27 August 2020 refers to normal vascularity of the thorax, physiological tracer uptake throughout the cervical and thoracic spine and no active arthritis in the facet joints of the cervical spine or discovertebral/costovertebral joints of the thoracic spine.
The MRI cervical and thoracic spine report of 16 September 2020 concludes there are discovertebral changes with mild cord compression at C5-6, foraminal stenosis bilaterally at C6-7 with C7 root impingement and left C8 foraminal root compression and mild thoracic spondylosis.
A CT guided left C6/7 perineural steroid injection was carried out on 28 April 2021.
A CT guided left C7/T1 perineural steroid injection was carried out on 12 May 2021.
The X-ray of the applicant’s left knee on 26 June 2021 found no significant degenerative change, spurring at the superior pole of the patella at the attachment of quadriceps in keeping with enthesopathy and a fabella.
An MRI of the applicant’s left knee on 18 July 2021 found a medial meniscal flap tear with posterior parameniscal cysts and suprapatellar fat pad impingement.
The report of the MRI of the lumbar spine on 24 August 2021 concludes there is disc desiccation with annulus tears and disc bulges at the lower three lumbar levels as well as mild facet joint arthropathy and no definite neural impingement.
A chest X-ray on 17 December 2022 provides no explanation for the applicant’s pain.
The MRI of the cervical and thoracic spine on 16 March 2023 concludes moderate spondylitic changes, calcification of the posterior longitudinal ligament at C5-6 level compressing the cord, multilevel disc degeneration with broad-based osteophyte and disc protrusions with bilateral foraminal stenosis and mild irritation to the exiting nerves, no focal disc herniation in the thoracic spine and at T10/11 prominent osteophyte and ligamentum flavum hypertrophy compressing the cord posteriorly.
A CT guided transforaminal epidural injection was carried out on 15 January 2024.

Clinical records of Mr Samuel Ma

Mr Ma on 29 August 2020 records an 18 month history of left shoulder and upper limb pain of gradual onset from driving a truck and changing gears and delivery work, carrying 10 pallets a delivery in a 12 tonne truck.
There are clinical records of 14 physiotherapy sessions up to 10 March 2021. Mr Ma’s treatment focussed on the applicant’s left shoulder and neck.

Clinical records of Dr Jonathan Le

Dr Le’s handwritten records date from 19 July 2007 to 20 March 2021.
In 2009, 2010, 2016 and 2017 Dr Le records complaints of lower back pain, and in 2012
Dr Le notes left knee pain.
In February 2019 Dr Le records left trapezius pain with the pain occurring when the applicant changes gear at work. In 2019 Dr Le also records the applicant’s work involves heavy lifting and driving his truck, and his condition is aggravated by heavy lifting.
Left shoulder pain is noted by Dr Le in August 2019, and that the applicant’s work involved lifting heavy objects and truck driving. Left interscapular pain is recorded from August 2020 which occurred when the applicant pushed the trolley at work.
In 2021 Dr Le records cervical spine pain and that the applicant has been seeing
Dr McKechnie.

Mr Mohammed Ali Jafary, physiotherapist

Mr Jafary reports on 1 April 2023 the applicant reported some temporary reduction in his right-sided neck and shoulder pain after two weeks of treatment. He presented with right-sided neck and upper trap pain for about six months, progressively getting worse, and he had similar pain on the left side about two years ago.
The objective assessment was hypertonicity/tightness in the upper traps, levator scap, rhomboids and posterior cuffs on the right side.
There was full range of movement in the cervical spine and pain was reported with movements especially forward flexion and lateral flexion.
There was full range of movement in the shoulder and pain was reported in the right upper trap and inter-scapular area with end range of movement.
The goal of treatment was to reduce pain intensity and improve strength and overall function.
On 18 March 2023, 13 May 2023 and 27 May 2023 Mr Jafary treated the applicant and recorded similar findings.

Financial documents

The applicant’s payslips show wages and earnings with a base pay rate of $23 per hour and for the period between January and June 2021 earnings of $4,485 for 195 hours with a Jobkeeper top up.
For July, August and October 2021 earnings are $3,461 for 135 hours at the hourly rate of $25.64.
In November 2021 and February, March and April 2022 the applicant earned $4,000 for 156 hours paid at the hourly rate of $25.64.
In October 2022 the applicant was paid for 137 hours at $25 per hour earning $3,425.
For the month ending 31 December 2022 and between January and June 2023 the applicant was paid for 152 hours work at $22.53 per hour in the amount of $3,425.
The applicant’s Notice of Assessment for year ending 30 June 2019 shows taxable income in the amount of $51,590, and for 2020 taxable income of $62,286. His individual tax return for 2018-2019 shows a taxable income of $51,590, for 2020 taxable income of $62,681, and for 2021 $64,379.

Schedule of Out of Pocket Expenses

A schedule of out of pocket expenses includes amounts paid by the applicant to
Dr McKechnie, Dr Patel, Dr Lieu, Dao Chemist and O’Grady’s Pharmacy, imaging costs, Move 360 Allied Health and Samuel Ma physiotherapy.
The amounts total $5,430.15.
Accounts and receipts for the medical expenses claimed are with the ARD.

Respondent’s evidence

The s 78 notice of 16 January 2025 is referred to in the Background above.
The respondent relies on reports of the left shoulder X-ray of 24 August 2019, the left knee X-ray of 26 June 2021, the left knee MRI of 18 July 2021, and the MRI of the lumbar spine of 24 August 2021 also referred to above.

Certificates of capacity

Dr Le’s certificates of capacity from 26 September 2019 to 26 August 2023 are with the Reply, and the certificate of capacity dated 8 January 2024 is with ALAD 2.
On 29 June 2019 Dr Le includes a diagnosis of cervical disc injury and left shoulder injury with date of injury January 2019 and it includes that the injury occurred at work.
The applicant had capacity for some type of work between 16 September 2019 to 26 October 2019 for eight hours a day and five days a week with restrictions.
On 10 September 2020 Dr Le includes no date of injury, and diagnoses posterior cervical pain, interscapular pain and investigation pending and includes lifting goods and pushing trolley as how the injury related to work. The applicant had no current capacity for any work on 10 September 2020 and then capacity for some type of work from 11 September 2020 to 8 October 2020 for eight hours a day five days a week with restrictions.
In Dr Le’s certificate of capacity dated 22 September 2020 the diagnosis is of cervical disc prolapse with nerve root entrapment.
In the certificate dated 31 October 2020 Dr Le’s diagnosis is of cervical disc prolapse with nerve root entrapment and upper back pain.
Dr Le certified the applicant as having capacity for some type of work from 31 October 2020 to 21 September 2021 for eight hours a day and five days a week with restrictions. The diagnosis is cervical disc prolapse with nerve root entrapment and upper back pain, and from 23 January 2023 in addition left shoulder bursitis. From 21 July 2021 the diagnosis of left knee medial meniscus tear is also included.
On 21 August 2021 the hours remained eight hours a day but changed to four days a week which continues until 26 September 2023.
On 1 September 2021 the diagnosis of lumbar disc L3/4, L4/5, L5/S1 prolapse was added.
Dr Le’s certificate of capacity of 8 January 2024 includes a diagnosis of cervical disc prolapse with nerve root entrapment and upper back pain, left shoulder bursitis, left knee medial meniscus tear, lumbar disc L3/4, L4/5, L5/S1 prolapse, T10/11 osteophyte, right shoulder bursitis and supraspinatus tendonitis.
Dr Le certifies the applicant as having capacity for some type of work between
8 January 2024 and 8 February 2024 for eight hours a day and four days a week with restrictions.

Dr Frank Machart, independent orthopaedic surgeon

On 16 January 2024 Dr Machart provides a report including a history of the applicant developing pain in the left knee region and right shoulder close to the thoracic spine around March 2019 with no specific single incident. There was no change in symptoms after he stopped working.
Dr Machart diagnoses the applicant with a left frozen shoulder on a background of tendinosis/bursitis, early degenerative changes in the left knee involving the medial meniscus in the absence of specific injury with no traumatic meniscal tear, and finds no abnormality in the spine. Although there was pain close to the thoracic spine there were no symptoms in the lumbar or cervical spine.
There was no complaint regarding the left upper extremity made that day or of the lumbar, thoracic or cervical spine, but there was complaint of right upper extremity and left knee pain.
In Dr Machart’s opinion these are early degenerative changes which were expected to be symptomatic with some of the more difficult aspects of his work.
Having accepted there was a manifestation of degenerative changes Dr Machart expected the symptoms to have resolved once the applicant stopped working. That not being the case indicates that there is very little in the way of aggravation from work as the primary diagnosis.
On the balance of probabilities Dr Machart finds there are age-related degenerative changes which became manifest during the course of his work, without a specific single injury or incident. This would have been evident during the course of his work lifting heavy articles but did not cause a structural injury or disease.
The applicant is not totally incapacitated but there is a partial incapacity driven by the symptoms of the underlying disease, frozen shoulder and degenerative changes in the left knee. He is not fit for unrestricted pre-injury duties, part time or full time. He is fit to work with restrictions. There is no physical reason why there should be restrictions on time at work.
On 29 November 2024 Dr Machart notes the applicant also now reports intermittent lower back pain allegedly present since 2021 and pain also in the left shoulder. He had ongoing pain and stiffness in both shoulders, the left since March 2019, the right since 2023, the left knee since 2021, and lower back pain since 2021.
Dr Machart refers to an element of pain behaviour on his examination of the applicant.
His opinion is that if there was a case of contribution to the pathology from work then
Dr Machart would have expected diminution if not resolution of symptoms once he stopped working.
As this is not the case it is confirmation in Dr Machart’s opinion of substantial degenerative disease rather than trauma-related pathology.
Dr Machart diagnoses left shoulder bursitis, right shoulder osteoarthritis, left knee early osteoarthritis and early degenerative changes in the spine. He agrees with Dr Giblin that ceasing work was not necessarily expected to stop the symptoms, however he maintains that ceasing work should have caused diminution of symptoms. No difference in symptoms since the applicant stopped work is indicative of primary degenerative disease.
In Dr Machart’s opinion there is no proof the applicant has suffered a personal injury arising out of or in the course of his employment.
The objective evidence is pathology which was not caused by injury, that is degenerative changes and frozen shoulder. Aggravation if any was not structural and cannot be objectively defined.
Work was not the main contributing factor to the injury in Dr Machart’s opinion. The main contributing factor is constitutional degenerative disease. There was also an element of pain behaviour complicating the applicant’s physical presentation.
The applicant has partial incapacity for work, he is not fit for unrestricted pre-injury duties but he is fit for restricted duties full time.
Dr Machart assesses 0% whole person impairment of the lumbar spine and left knee and 10% for both shoulders.

Dr Matthew Giblin, independent orthopaedic surgeon

Dr Giblin’s report of 7 June 2021 referred to above is also relied on by the respondent.

Applicant’s submissions

The applicant made oral submissions which have been recorded and form part of the Commission’s record. These are referred to below.
An initial issue is the deemed date of injury in light of Haddad v The GEO Group Australia Pty Ltd[1] where the date of incapacity is a preliminary determinant where disease is claimed. The applicant seeks leave to amend the ARD to include deemed dates of injury of August 2021 and 19 September 2023 as the dates the applicant identifies in his statement.
[1] [2024] NSWCA 135 (Haddad).
The applicant reduced his hours of work in August 2021 because of the effects of the alleged injuries. The September 2023 date is when the entity for whom he contracted with his own company said he could not come back to work until he obtained a certificate for normal duties, and he has not worked since.
The respondent views the August 2021 as the relevant date.
The applicant submits that decisions in the Commission are identifying the first incapacity as the deemed date and forgetting that compensation awarded in a disease case needs to look at a combination of the actual impairment due to an injury. Compensation is being confused with causation in the applicant’s submission.
The applicant referred to a shearer’s case as an example where a worker may become incapacitated with back strain in year one which then develops into a degenerate back over the next 25 years. This should not be compensated in year one in these circumstances. Causation is being confused with the awarding of compensation as was said in cases like Ozcan.[2]
[2] Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56 (Ozcan).
The two dates to be relied on alternatively are in accordance with ss 4(b)(i) and 4(b)(ii) of the 1987 Act.
The worker claims injury to the cervical spine, lumbar spine, bilateral shoulders and left knee, and the right shoulder as a consequential injury resulting from overuse to protect his left injured shoulder and left upper extremity.
The balance of the injuries was sustained over the course of the applicant’s employment as a self-employed working director truck driver performing deliveries and the heavy nature of the work. Getting on and off his truck also placed stress and strain on his left knee resulting in a left medial meniscus partial tear and the development of chondromalacia patella.
Other than the consequential right shoulder right upper extremity injury the injuries are sustained by way of a s 4(b)(i) disease, namely a gradual onset of degenerative process, and that process is also aggravated over time and accelerated as Dr Giblin opines by the nature of the work, culminating in his assessment of 26% whole person impairment on 8 May 2024.
The evidence shows the applicant reduced his hours of work at two points, the first in about August 2021 to 32 hours a week, eight hours a day over four days a week, when he could not cope with the pain anymore. That is supported by the certificates of capacity. The additional deemed date based on incapacity is when the applicant finally gives up work on
19 September 2023.
Between August 2021 and September 2023 the applicant continued to perform heavy and laborious work placing stress and strain on his upper limbs, neck, back and left knee.
It is correct to look to the final date of incapacity in a disease case bearing in mind there might be multiple dates of incapacity and returning to work, and on that final date the injury can be seen to have culminated and become available for assessment which is when
Dr Giblin made his assessment. This is the date the applicant last worked in employment the nature of which the disease can be seen to be due if one accepts Dr Giblin’s evidence.
Turning to the applicant’s work, he delivered Asian groceries between 2008 and 2010 from a BKK warehouse at Smithfield to small grocery stores mainly in Cabramatta. He sets out the weights and items he would carry. He would have to park away from shops at times, lift bags and boxes off the pallets in the truck, climb on and off the truck on a step putting pressure on his knees, put the trolley on the ground, lift the bags and boxes off the truck and on to the trolley.
The applicant put as much on the trolley as he could so he would not have to make so many trips. He pushed the trolley to the grocery store to deliver the goods to the storeroom and he often had to leave the trolley at the front and carry 25kg bags of rice and heavy boxes of goods, twisting to get past rows of products sometimes stacked on the ground.

He estimates he climbed on and off the truck 35 to 40 times a day and delivered three to four tonnes of goods every day.
He mentions the steel gates on his truck that he had to open to accept or make deliveries and describes grabbing them with both hands, pulling them up with a lot of force and moving them to the side. To close the gate and move it back he lifted it up, pulled it down and locked it into place with quite a lot of force and effort.
Back and left knee pain commenced one or two years after doing that work. He was then unable to work for a year when he suffered with an unrelated right hand injury.
The applicant started driving for Border in 2011 delivering goods in Sydney, involving picking up and delivering beans, tiles, pipes, toilets, sinks, pumps and dryers from 2 to 20 to 30 kg. When he got to his destination he had to lift pallets of goods off and on to a trolley and push it to the shop or warehouse. He would need to move goods to get to what needed to be delivered depending on how it was stacked by the people at Borders. He describes asking for help when it was too heavy and sometimes he had to do it himself. Sometimes he could not use a trolley and he had to lift and carry the goods by hand.
He did this 20 to 30 times a day, getting in and out of the truck, and he estimates deliveries to 15 customers a day and about 1.5 tonnes a day, working a 50 hour week.
He describes occasional pain in his left elbow, low back and left knee but he was able to keep working. He says he would have pain for a few days and it would gradually get better. He took painkillers and saw Dr Le.
He had the onset of pain and discomfort in his back, neck, left shoulder and left arm in about March 2019. The applicant sought treatment from Dr Le, he had scans of the left shoulder, took painkillers and had acupuncture and physiotherapy. He saw Dr McKechnie as he continued to have very bad pain and he had two injections in his neck that helped for some months.
As he had bad pain again he had to reduce his hours to 32 hours a week. There were days he was in too much pain to work at all. His accountant did not reduce the wages paid to him until recently to reflect reduced hours.
The applicant used his right arm much more to spare the pain in his left shoulder. When he pulled the curtain over to cover the stock in his truck he used his right arm and shoulder because of the pain in his left shoulder. To lift and pull the trolley off the truck he used both arms but put more weight on his right arm and shoulder because of the pain in his left shoulder. He leaned the boxes of goods and products of 10 to 15 kgs more on his right arm and shoulder to take the weight off his left shoulder.
He started to feel right shoulder pain and told Dr Le in early January 2023.
He is referred for scans of his neck and back on 16 March 2023.
The applicant is called to a meeting with the manager at Border Express on 19 September 2023 and told he could not come back to work until he was fit for normal duties and he has not worked since.
The applicant submits that is the appropriate deemed date of injury as the relevant date in terms of incapacity, bearing in mind the work he did until that time.
Dr Giblin provides three reports on 8 May 2024 and assesses the applicant with 26% whole person impairment of the bilateral shoulders, lumbar spine and left knee.
After leaving Borders the applicant describes further treatment of X-rays, right shoulder acupuncture and physiotherapy which he paid for out of his own pocket. He felt pain in his back every day, his left knee is painful sometimes and he was referred to Dr Lieu.
The applicant’s claim form includes that he stopped work on 26 September 2023, but it is likely that is properly 19 September 2023. The claim form for permanent impairment attaches Dr Giblin’s reports of 18 October 2022 and 8 May 2024.
Dr Giblin’s first report of 7 June 2021 recounts the history of gradual onset of pain, over the last three years low back pain and over the last six months left knee pain, managed by Dr Le and Dr McKechnie.
The applicant was meant to be on light duties but he was in effect doing his normal duties, this being just over two years before he completely ceased working in September 2023.
The diagnosis is provided of left trapezius, shoulder and upper limb symptoms and he states they are due to the nature and conditions of the work. He describes a T4 syndrome, a soft tissue injury which presents with the current symptoms, as also due to the nature and conditions of the work which involved a lot of lifting, use of a gearstick and steering wheel that has created this group of symptoms.
Dr Giblin’s opinion is, in the absence of any investigations, that the applicant has most likely had an aggravation of underlying degenerative change of the lumbar spine due to prolonged sitting and lifting associated with driving and the nature and conditions of his employment, as are the left knee symptoms that are basically due to the use of the clutch and climbing in and out of his truck. The applicant should avoid work that involves heavy lifting, squatting or repetitive bending.
On 18 October 2022 Dr Giblin records the applicant remains at work on light duties, still driving a truck with curtains, and he is working 32 hours a week over four days. An X-ray and MRI have been carried out of the left knee and an MRI of the lumbar spine. Following his examination Dr Giblin’s opinion remains the same.
On 8 May 2024 Dr Giblin reports the applicant’s right shoulder pain is due to overuse and protection of the left arm or shoulder and he has developed a right frozen shoulder. The applicant has not worked since 24 September 2023 due to his injuries.
In a separate report of the same date Dr Giblin comments on Dr Machart’s report. It is not always the case that an aggravation of a disease resolves once the worker stops working. If they have a frank injury Dr Giblin says degenerative changes may cease once they stop working. The applicant does not have a frank injury and he has an aggravation and acceleration of underlying degenerative change due to the nature and conditions of employment, and ceasing work will not necessarily stop those symptoms.
The degenerative changes are both caused by the work and aggravated and accelerated by the work, becoming symptomatic over a long period of time.
It is possible but unlikely in Dr Giblin’s opinion that there are age-related degenerative changes which became manifest during the course of the applicant’s work, considering the nature and conditions of his employment.
Dr Giblin is of the opinion that due to the nature and conditions of his employment it is not unreasonable that the applicant should have a right frozen shoulder due to degeneration of the rotator cuff and hastening of degenerative changes in his cervical spine which may or may not lead to radiculopathy. The doctor felt the applicant had a T4 syndrome which differs from Dr McKechnie’s diagnosis.
Employment is the main contributing factor to the permanent aggravation of underlying degenerative change and also an acceleration of those changes with time.
Dr McKechnie’s reports deal mainly with treatment of the neck pain in the lower cervical and upper thoracic region on the left side and with treatment of the neck, recommending injections.
Mr Ma, physiotherapist, on 20 October 2020 notes cervical disc prolapse, upper back pain and left shoulder pain. His clinical records include on 29 August 2020 18 months of left shoulder and upper limb pain from driving a truck, changing gears and delivery, carrying 10 pallets and delivery (12 tonnes truck).
Dr Machart does not seem to deal with the nature of a disease injury. Dr Machart says there is no personal injury arising out of or in the course of employment as the objective evidence is pathology which was not caused by injury, that is degenerative changes and frozen shoulder. Aggravation, if any, was not structural and cannot be objectively defined in his opinion. There is no difference to symptoms since he stopped work which is indicative of primary degenerative disease.
Dr Machart is at odds with Dr Giblin.
Dr Machart diagnoses left frozen shoulder on a background of tendinosis/bursitis, left knee early degenerative changes with no traumatic meniscal tear and no symptoms or abnormality in the spine.
Dr Machart refers to there being no structural injury. There is evidence with scanning of the lumbar spine that shows annular tears and desiccation of the lower lumbar discs. Dr Machart refers to this in his report of 16 January 2024. The MRI of 24 August 2021 shows significant lumbar pathology and supports Dr Giblin’s opinion. Dr Machart also does not refer to the left knee MRI of 17 July 2021 when he states he could not find physical effects of injury.
The applicant submits that he has suffered disease injuries to the cervical spine, lumbar spine, T4 syndrome, left knee and left shoulder with the right shoulder a consequential injury.

Respondent’s submissions

The respondent made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.
The dispute notice of 16 January 2025 that raises injury disputes as well as disputes regarding capacity and lump sum compensation is primarily based on the opinion of
Dr Machart.
With respect to the deemed date of injury the respondent submits Haddad is authority for the proposition that where there is a lump sum claim for a disease injury, as in this case, the date of injury would be the first date of incapacity, unless there has been no incapacity in which case it is the date of the claim as per older authority such as Stone v Stannard Brothers Launch Services Pty Ltd.[3]
[3] [2004] NSWCA 277 (Stone).
The applicant’s statement evidence is that he reduced his hours to eight hours a day working four days a week in August 2021. The respondent’s submission is the date of injury of August 2021 would be adopted as the one and only deemed date of injury for the purposes of the weekly payments claim and the lump sum claim.
The claim for lump sum compensation relates to impairments assessed in respect of both shoulders, the lumbar spine and the left lower extremity. The applicant confirms in his statement that he is right handed.
The applicant says he developed low back pain and left knee pain it appears before 2011 when he starts doing the work with Borders. The clinical notes do not include any complaints of those symptoms and the applicant does not complain of those symptoms until he sees
Dr Giblin in 2021.
The respondent submits there is no real detail of the mechanism of injury asserted for the lower back or the left knee in the applicant’s statement. There is some reference to heavy lifting as a general part of his duties, and some of the subsequent medical evidence deals with asserting mechanism, but the applicant’s statement evidence is lacking in terms of both the allegation of injury or aggravation to the lower back and left knee, and also in relation to the alleged consequential right shoulder condition.
Chronologically there are some scans and an ultrasound of the left shoulder in 2019. Dr Le’s certificate of capacity on 26 September 2019 refers only to the cervical spine and left shoulder with no reference at that point to any complaints regarding the lumbar spine or left knee.
The applicant is referred for a bone scan on 27 August 2020 which does not indicate any active pathology in either the shoulder or the cervical spine.
The MRI of the cervical and thoracic spine on 16 September 2020 does indicate some pathology in those areas.
Mr Samuel Ma, physiotherapist, reports on 20 October 2020 that treatment is provided to the cervical spine and the left shoulder, but again there is no reference at this time to any treatment being provided in relation to the lower back, the left knee or the right shoulder.
Dr McKechnie, treating neurologist and back specialist, on 15 January 2021 takes a history of neck and upper thoracic pain and symptoms in the left arm, but no symptoms are reported in the lower back. There is no report of symptoms or treatment of the lower back or investigations of the lumbar spine.
Dr McKechnie simply focused on the neck and what he believes to be some radiating symptoms into the left arm.
It is not until Dr Giblin’s first report of 7 June 2021 to the applicant’s solicitors that there is reference to the back and left knee. Dr Giblin talks about the gradual onset of left arm and shoulder symptoms and low back and left knee pain, but there is no explanation for where the back and left knee symptoms come from.
There is nothing in the clinical records, certificates or doctor’s reports to explain the reference to those body parts by Dr Giblin in 2021.
Dr Giblin in his report of 2021 makes reference to the development of back and left knee pain in addition to the left shoulder and arm pain, but again provides no explanation for how those symptoms are attributable to employment.
It is not until the conclusion of that report where Dr Giblin says the applicant sits for long periods of time and uses his left leg for the clutch that he attributes the back and left knee symptoms to employment, which is not referred to by the applicant in his statement.
The more recent physiotherapy records of Mohammed Ali Jafary of 18 March 2023 show a focus on the neck and at this time on the right shoulder, but there is no reference to the lower back or left knee symptoms or their treatment, consistent with his other reports.
Dr McKechnie’s more recent report for an attendance on 14 November 2023 includes a history of neck pain now radiating across the right shoulder towards the hand, symptoms consistent with cervical radiculopathy, with no residual or current left arm pain. Again there is no reference to the lower back with the focus being on the neck and some radiating symptoms.
Dr McKechnie’s most recent report of 12 March 2024 is in similar terms.
In his first report of 16 January 2024 Dr Machart essentially takes the view that the applicant’s presentation is that of degenerative pathology throughout the shoulder and the left knee and he finds no abnormality in the spine at all, which would encompass the cervical and lumbar spine.
Dr Machart makes the observation that one would have expected some alleviation of symptoms once the applicant stopped working and that has not been the case. The doctor concludes the applicant’s conditions are age-related and degenerative in nature rather than work related.
Elaborating on that in his more recent report of 29 November 2024 Dr Machart makes reference to the applicant saying he reported left knee pain in 2020. There does not appear to be a lot of support for that in the clinical notes and the only reference to the left knee appears to be in Dr Giblin’s medico legal report. Certainly in 2021 there is no reference to it in the clinical notes or the medical certificates being issued by the treating doctors.
The same can be said about the applicant’s complaint of intermittent lower back pain being present since 2021.
Dr Machart reiterates his opinion that there is no structural derangement in the spine, he talks about pain behaviour, and he makes the same observation about symptoms diminishing once the applicant stops working being suggestive of degenerative disease rather than trauma related pathology.
The diagnosis provided is consistent with that in terms of osteoarthritis in the knee, the right shoulder, bursitis in the left shoulder and degenerative changes in the spine.
In Dr Machart’s opinion the objective evidence being the radiological investigations indicates pathology that is degenerative in nature rather than being caused by any form of injury.
Dr Machart concludes the employment is not the main contributing factor and the applicant’s presentation is consistent with constitutional degenerative disease.
In contrast there are Dr Giblin’s reports. The more recent report of 8 May 2024 founds the lump sum claim as it is presently framed.
This report deals with the consequential right shoulder condition which the applicant says started to develop due to overuse and protection of the left shoulder. He has now developed frozen right shoulder. That suggests some recent onset.
Dr Giblin does not give any indication of how or what caused this or what has he done with his dominant right arm that he did not do before. We know the applicant is right handed but we do not know what he has done with his right hand and arm post-injury, bearing in mind he has not worked since 2023, to result in what Dr Giblin describes as a frozen shoulder.
The respondent submits there is insufficient evidence to fill in that gap in the applicant’s statement evidence, the histories recorded by Dr Giblin or in the treating material before the Commission.
The respondent’s submission is primarily that Dr Machart’s view that the applicant’s condition is age-related, degenerative in nature and unrelated to employment would be accepted.
If the view is taken that employment has caused some aggravation or exacerbation of what appears to be otherwise degenerative pathology, the respondent says there might be some evidence to support that conclusion in terms of the left shoulder, however there is insufficient evidence to link the lumbar spine to employment whether as an injury or aggravation, and similarly for the left knee.
In terms of the alleged consequential right shoulder condition, the respondent says there is insufficient evidence to establish the common sense causal connection between the left shoulder and what the applicant says is effectively an overuse or reliance type of condition.

Applicant’s submissions in reply

The respondent submits that Haddad is authority that states one should identify the first date of injury and one moves away from cases like Stone.
The applicant’s submission is that nothing stated in Haddad is adverse to a finding of multiple deemed dates of injury which may occur.
When a worker has an aggravation, goes off work and returns to work sequentially and in a nature and conditions style of claim on a disease basis, one can have multiple deemed dates of injury on the basis of incapacity.
This was not addressed in Haddad. The issue in Haddad was that it was sought to rely on a claim for s 60 expenses in order to avoid focusing on a deemed date at one particular point in time. The issue was in terms of ss 15 and 16 of the 1987 Act when one looks at the first date of incapacity, for evidence of incapacity, and if there is no incapacity one goes to the date of the claim.
There is nothing adverse in Haddad to what the applicant has submitted. Where the work the nature of which the disease injury is due continues, it would be wrong to restrict a worker to an earlier deemed date which applies a lesser rate of compensation when a worker undergoes further injury or further impairment, for the sake of identifying that a later date is incorrect.
The applicant’s submission is that this confuses causation with the need to award compensation for the injury which is being assessed. It makes no logical sense to restrict the assessment to a date which is the initial causation of the injury when there is further causation through the nature of the work performed until a further deemed date.

FINDINGS AND REASONS

Did the applicant sustain disease injuries to his lumbar spine, thoracic spine, cervical spine left knee and/or left shoulder, and/or a consequential right shoulder injury

Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer.
‘Injury’ is defined in s 4 of the 1987 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…”

The applicant pleads his case as disease injury pursuant to s 4(b) of the 1987 Act. He bears the onus of establishing on the balance of probabilities that he sustained injuries to his lumbar spine, thoracic spine, cervical spine, left knee and/or left shoulder.[4]
[4] Nguyen v Cosmopolitan Homes (NSW) Pty Limited [2008] NSWCA 246.
I am satisfied on the balance of probabilities the applicant sustained disease injuries to his lumbar spine, thoracic spine, cervical spine, left knee and left shoulder in accordance with s 4(b) of the 1987 Act based on the weight of the evidence discussed below.
The applicant’s statement evidence is that he started to have low back pain and left knee pain in about 2009 or 2010. Prior to March 2019 he had occasional pain in his left elbow, low back and left knee but he was able to keep working. In about March 2019 he started to notice pain and discomfort in his left upper back, neck and going down his left shoulder, left arm and hand. He started to feel pain in his right shoulder by early 2023 from protecting his injured left shoulder.
The respondent submits there is a lack of detail in the applicant’s statement with respect to the mechanism of injury asserted for the lower back and the left knee as well as the consequential right shoulder condition.
I do not accept that submission. The applicant describes driving, climbing in and out of his truck, bending and lifting, pushing the trolley and the delivery work he carried out over the years, as well as lifting and moving steel gates and curtains on the truck. This work initially caused him to start having low back pain and left knee pain in 2009 or 2010. He had occasional pain in his low back and left knee prior to 2019 that lasted a few days and gradually got better.
The applicant also describes using his right arm much more, including when pulling the truck curtain, lifting the trolley off the truck and carrying boxes in order to take the weight off his left shoulder.
Treatment of the applicant’s thoracic spine, left shoulder and cervical spine, including two steroid injections, appear as the focus of treatment until the applicant’s left knee is X-rayed on 26 June 2021. Dr Giblin refers to the low back and left knee conditions in his first report of 7 June 2021.
In his certificates of capacity Dr Le first adds a diagnosis of left knee medial meniscus tear in July 2021 and lumbar disc prolapse in September 2021.
In his clinical records however Dr Le first notes a complaint of lower back pain in 2009 and of the left knee pain in 2012. I do not agree with the submission that there is no explanation for
Dr Giblin referring to the applicant’s low back and left knee conditions in 2021.
Dr Giblin notes the applicant was referred to Dr McKechnie by Dr Le for his upper thoracic and left arm pain and Dr McKechnie investigated him and organised the steroid injection at C7/8. The focus of Dr McKechnie’s treatment is on the applicant’s cervical spine. An MRI was carried out in 2020 which disclosed the severity of his condition.
The applicant’s statement evidence is consistent with the medical evidence he relies on.
Dr Giblin is of the opinion the applicant’s left trapezius, shoulder and upper limb symptoms are due to the nature and conditions of his employment and he is suffering from T4 syndrome.
T4 syndrome is thought to be a soft tissue injury to the thoracic spine which causes back pain with radiation down the left arm, Dr Giblin says, and is thought to be due to overuse. The nature and conditions of the applicant’s employment included a lot of lifting, use of a gearstick and a steering wheel that has created this group of symptoms.
The applicant’s truck is manual and has curtains rather than doors, and he had been driving this sort of truck for 14 years. His hand was on the gearstick constantly changing gears, pulling curtains as well as lifting, packing and unpacking the truck, leading to soft tissue strain in his cervico/thoracic region and to his T4 syndrome.
Dr Giblin is also of the opinion the applicant has most likely had an aggravation of underlying degenerative change in his low back due to prolonged sitting and lifting associated with driving and the nature and conditions of his employment including a lot of lifting and bending.
The MRI of the applicant’s lumbar spine confirms degenerative change which Dr Giblin says has no doubt been aggravated by the employment.
The applicant’s symptoms of chondromalacia patellae in his left knee are again due to the nature and conditions of his employment in Dr Giblin’s opinion, basically due to the use of the clutch in a manual truck and climbing in and out of his truck. Dr Giblin notes it is often due to activities that involve direct trauma or squatting, kneeling or climbing.
The MRI of the applicant’s left knee confirms a medial meniscus flap tear which would be due to the nature and conditions of his employment, although the symptoms are consistent with chondromalacia patellae which is not always evident on an MRI.
Dr Giblin is of the view the applicant’s employment is the main contributing factor to the permanent aggravation of his underlying degenerative change and also an acceleration of those degenerative changes with time.
Dr McKechnie treated the applicant for his cervical spine condition. Dr McKechnie records that in around March 2019 the applicant in the course of his work changing gears developed the onset of neck pain in the lower cervical and upper thoracic region on the left side as well as intermittent pain and numbness through the left arm.
Disc protrusions at C5/6, C6/7 and C7/T1 are demonstrated on an MRI, including nerve root compression at C7 and impingement on the left C8 nerve root.
Dr Le issues certificates of capacity from 2019 with diagnoses of cervical disc injury, left shoulder injury, later bursitis, and upper back pain. In addition from 2021 Dr Le includes left knee medial meniscus tear and lumbar disc prolapse. In 2024 Dr Le adds a diagnosis of right shoulder bursitis.
I prefer the opinion of Dr Giblin to that of Dr Machart for the reasons that follow.
Dr Machart makes the diagnoses of left shoulder bursitis, right shoulder osteoarthritis, left knee early osteoarthritis and early degenerative changes in the spine.
In Dr Machart’s opinion these are age-related degenerative changes which were expected to be symptomatic with some of the more difficult aspects of his work.
In concluding work was not the main contributing factor Dr Machart notes;
(a)    none of the several symptoms reported by the applicant during the course of his work were through any specific incident;
(b)    there is no structural derangement;
(c)    there is an overlying element of pain behaviour which complicates the physical picture, and
(d)    a diminution if not resolution of symptoms would be expected when the applicant stopped working, and as this is not the case it is confirmation of substantial degenerative disease rather than trauma-related pathology.
I do not afford great weight to this opinion. The applicant does not plead any specific incidents as being causative of his injuries as he says are the result of the ongoing nature of his work over many years.
As the applicant submits, Dr Machart does not provide an opinion with respect to the applicant’s injuries as disease injuries contracted and/or aggravated in the course of employment.
The radiological investigations however disclose structural changes in the applicant’s thoracic spine, left shoulder, cervical spine, left knee and lumbar spine.
The reference to pain behaviours finds no support in the other evidence before the Commission.
While he agrees with Dr Machart generally, Dr Giblin’s opinion is that there will not necessarily be a diminution of symptoms following the applicant ceasing work in September 2023. In Dr Giblin’s view symptoms do not always resolve once a person stops working and sometimes the aggravation persists.
In this case Dr Giblin opines there is an aggravation of underlying degenerative change and an acceleration of those changes due to the employment, causing the degenerative changes to become symptomatic over a long period of time. The applicant’s disease injuries on the evidence became more grave, more grievous or more serious[5] as a result of the nature of his employment, and I accept that opinion.
[5] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626.
I do not agree with the respondent’s submission that the applicant did not complain of low back pain and left knee symptoms until he saw Dr Giblin in 2021.
Dr Le’s handwritten clinical records are difficult to read however they include references to lower back pain from 5 September 2009. On 15 February 2010 Dr Le notes “lower back pain his work involved heavy lifting…”[6] Left knee pain is noted by Dr Le on 17 November 2012 for a year which only occurs on squatting.[7]
[6] ARD page 97.
[7] ARD page 100.
I find the applicant has sustained lumbar spine and left knee disease injuries in addition to disease injuries with respect to his thoracic spine, cervical spine and left shoulder, and that the employment was the main contributing factor to the contraction and/or aggravation, acceleration, exacerbation or deterioration of those disease injuries.
The applicant also alleges he has developed a consequential injury to his right shoulder.
It is not necessary for the applicant to establish that the consequential condition in his right shoulder is an ‘injury’ within the meaning of s 4 of the 1987 Act.
As the applicant alleges a consequential right shoulder condition he has to establish the symptoms and restrictions in his right shoulder have resulted from his left shoulder injury.[8]
[8] Moon v Conmah Pty Limited [2009] NSWWCCPD 134, Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23.
The applicant’s statement evidence is that he was using his right arm much more to spare the pain in his left shoulder, putting more weight on his right arm and shoulder to pull the trolley off the truck and leaning boxes more on his right arm and shoulder to take the weight off his left shoulder. This caused him to feel pain in his right shoulder.
In his report of 8 May 2024 Dr Giblin refers to the applicant starting to develop pain in his right shoulder since he last saw him in October 2022, due to overuse and protection of his left shoulder leading to the development of a right frozen shoulder.
The respondent submits there is insufficient evidence including in Dr Giblin’s report of how or what caused the consequential right shoulder condition, or what the applicant has done with his dominant right arm that he did not do before, noting he ceased work in September 2023.
Dr Giblin describes overuse and protection of the left shoulder while the applicant was employed, and the applicant also describes this in his statement evidence. Dr Le adds the diagnosis of right shoulder bursitis in his certificate of capacity of 8 January 2024.
Dr Machart diagnoses right shoulder osteoarthritis in his report of 29 November 2024 and notes the applicant had reported ongoing pain and stiffness in his right shoulder since 2023.
There is sufficient evidence to establish a common sense causal connection[9] between the symptoms and restrictions in the applicant’s right shoulder and his left shoulder injury.
[9] Kooragang Cement Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
I find the applicant developed a consequential right shoulder condition as a result of his left shoulder injury in addition to the disease injuries discussed above.

Deemed date of injury

In accordance with ss 15 and 16 of the 1987 Act where an injury is a disease injury it shall be deemed to have happened at the time of the worker’s incapacity.
The applicant’s submission is that he reduced his working hours in August 2021 and that is one deemed date of injury, however as he continued to work and the employment continued to contribute to his disease injuries there is a further deemed date of injury of 19 September 2023 when he ceased working.
The respondent’s submission is that the first date of incapacity due to the applicant’s disease injuries was in August 2021 and regardless of his continuing to work reduced hours until he ceased work in September 2023, August 2021 must be the deemed date of injury.
In Haddad the Court found that whether a worker has an incapacity resulting from the injury (being a reduction in earning capacity giving rise to an entitlement to claim weekly compensation) is a question of fact to be determined by all the relevant evidence.
The first step is to enquire as to whether there is an incapacity flowing from the injury for which compensation is claimed. If the answer is in the affirmative then the date of incapacity is the deemed date of injury.
The applicant’s statement evidence is that he worked 50 hours a week and he tried to keep working full hours until about August 2021 when he had to reduce his hours as he could not cope with the pain anymore.
Dr Le’s first certificate of capacity certifies the applicant with capacity for some type of work from 16 September 2019 for eight hours a day and five days a week with restrictions.
Griffiths AJA refers to incapacity in the sense of a reduction in earning capacity.[10] There is no evidence of a reduction in earning capacity in September 2019. In June 2021 Dr Giblin notes the applicant was meant to be working light duties but was in effect back driving and doing his normal duties. The applicant’s statement evidence is that his accountant did not reduce his wages until recently to reflect the reduced hours worked.
[10] Haddad at [81].
In this case incapacity flowed from the injury from which the applicant claims compensation from 21 August 2021 when Dr Le certified a reduced capacity to work of eight hours a day and four days a week.
The applicant’s payslips show a reduction in monthly hours worked from 195 to 135 in August 2021 with a reduction in earnings that month despite an hourly rate increase.
While the applicant’s submission carries some force, as Principal Member Harris found in Ellis v Dontarna Pty Ltd[11] the principles in Haddad are to be applied.
[11] [2024] NSWPIC 513 at [25], Razmovski v NIB Health Funds Ltd [2024] NSWPIC 540.
I find the deemed date of injury is 21 August 2021.

Entitlement to weekly compensation

Under s 33 of the 1987 Act if total or partial incapacity for work results from an injury the compensation payable to the worker includes a weekly payment during the incapacity.
The applicant is entitled to payment of weekly compensation between 21 August 2021 and 17 February 2024 in accordance with ss 36 and 37 of the 1987 Act.
With respect to calculating pre-injury average weekly earnings (PIAWE), the applicant’s claim form includes that he stopped work on 26 September 2023, he earned $23 per hour for 38 hours a week and his usual pre-tax weekly earnings were $1,100, which appears to be mathematically incorrect.
I accept the applicant’s submission that his last date of work was 19 September 2023 on the basis of his statement evidence that he was told on 19 September 2023 he was not able to return to work and he has not worked since.
The applicant’s available payslips between January 2021 and June 2021 show earnings of $4,485 per month at the hourly rate of $23 for 195 hours work. Divided by four weeks this averages to earnings of $1,121.25 per week, the amount that appears in the respondent’s wages schedule.
The applicant’s payslip for July 2021 shows earnings of $3,461.54. The total earnings from
2 January 2021 to 30 July 2021 then totals $30,371.54 which represents $52,065.50 over 12 months or $1,001.26 per week.
On the available evidence I find the applicant’s PIAWE is $1,001.26.
On the basis of the available payslips and averaging monthly earnings as above, the applicant’s current weekly earnings are calculated as follows;
(a)    21 August 2021 to 30 October 2021 - $798.82 ($3,461.54 per month, $41,538.48 over 12 months divided by 52 weeks);
(b)    1 November 2021 to 30 September 2022 - $923.08 ($4,000 per month, $48,000 over 12 months divided by 52 weeks), and
(c)    1 October 2022 to 17 February 2024 - $790.38 ($3,425 per month, $41,100 over 12 months divided by 52 weeks).

The applicant is entitled to weekly payments in accordance with s 36(2) of the 1987 Act between 21 August 2021 and 20 November 2021 at 95% of PIAWE subject to indexation less his current weekly earnings.
The applicant is entitled to weekly payments in accordance with s 37(2) of the 1987 Act between 21 November 2021 and 19 September 2023 at 95% of PIAWE subject to indexation less his current weekly earnings.
The applicant is entitled to weekly payments in accordance with s 37(3) of the 1987 Act between 20 September 2023 and 17 February 2024 at 80% of PIAWE subject to indexation less his current weekly earnings.
Current weekly earnings are defined in cl 8 of Schedule 3 of the 1987 Act as the greater of the worker’s actual gross earnings in respect of that week or the weekly amount that the worker is able to earn in suitable employment.
Suitable employment is defined in s 32A of the 1987 Act as employment in work for which the worker is currently suited having regard to matters including the nature of his incapacity and the medical information including but not limited to any certificate of incapacity, his age, education, skills and work experience and regardless of factors including whether the work or employment is available.
Dr Le continues to certify the applicant as having capacity for some type of work for 32 hours per week until 26 September 2023, and again for the period 8 January 2024 to
[12] ALAD 2 page 2.
8 February 2024.[12]
I infer the applicant continued to have capacity for some type of work for 32 hours per week until the end of the second entitlement period on 17 February 2024.
The applicant is entitled to weekly compensation from 21 August 2021 to 17 February 2024 at PIAWE of $1,001.26 subject to indexation in accordance with ss 36 and 37 of the 1987 Act.

Entitlement to payment of medical expenses

Section 60(1) of the 1987 Act provides that if as a result of an injury it is reasonably necessary that any medical or related treatment be given to a worker, the worker's employer is liable to pay the cost of that treatment or service and related travel expenses in addition to any other compensation under this Act.
The applicant claims the amount of $5,430.15 for the cost of specialist consultations, medications, scans and allied health professionals.
As I have found the applicant has sustained disease injuries to his lumbar spine, thoracic spine, cervical spine, left shoulder and left knee and a consequential right shoulder injury, the applicant is entitled to payment of reasonably necessary medical or related expenses arising from those injuries pursuant to s 60 of the 1987 Act.
There will be a general order for payment of reasonably necessary medical or related expenses resulting from the applicant’s injuries on production of accounts, receipts and/or Medicare notice of charge.

SUMMARY

The applicant sustained disease injuries to his lumbar spine, thoracic spine, cervical spine, left knee and left shoulder for which his employment was the main contributing factor within the meaning of s 4(b) of the 1987 Act.
The applicant has sustained a consequential right shoulder condition as the result of his left shoulder injury.
The deemed date of the applicant’s injury is 21 August 2021.
The applicant is entitled to the payment of weekly compensation from 21 August 2021 to
17 February 2024 at PIAWE of $1,001.26 subject to indexation in accordance with ss 36 and 37 of the 1987 Act.
The applicant is entitled to the payment of reasonably necessary medical or related expenses in accordance with s 60 of the 1987 Act on production of accounts, receipts and/or Medicare notice of charge.
The matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment of the applicant’s lumbar spine, left lower extremity (knee), left upper extremity (shoulder) and consequential right upper extremity (shoulder) in accordance with s 66 of the 1987 Act.

[2025] NSWPIC 340

16 July 2025