Ezzell v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ezzell v Workers Compensation Nominal Insurer (iCare) [2021] NSWPIC 326
APPLICANT:	Robert Ezzell
FIRST RESPONDENT:	Justin Troy Bucello t/as Homes2nv
SECOND RESPONDENT:	Workers Compensation Nominal Insurer (iCare)
MEMBER:	Kerry Haddock
DATE OF DECISION:	2 September 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits and medical expenses against uninsured respondent, relying on sections 4(b)(i) and 4(b)(ii) of the Workers Compensation Act 1987(1987 Act); Workers Compensation Nominal Insurer joined as second respondent; dispute as to worker/deemed worker not maintained; credit issues with respect to both applicant and first respondent, due to inconsistent statements; lack of contemporaneous evidence of injury; treating general practitioner recorded no history of work-related injury until 16 months after applicant ceased work with the first respondent; inconsistent medical histories; Brines v Westgate Logistics Pty Ltd, Davis v Council of the City of Wagga Wagga, Mason v Demasi, Paric v John Holland (Constructions) Pty Ltd and Nguyen v Cosmopolitan Homes applied; Held - no sense of actual persuasion that the applicant sustained injury arising out of or in the course of his employment with the first respondent, due to his inconsistent statements and lack of contemporaneous evidence of injury; award for the first and second respondents.
DETERMINATIONS MADE:	1. That there is an award for the first respondent. 2. That there is an award for the second respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant, Robert Ezzell (Mr Ezzell) was employed by the first respondent, Justin Troy Bucello t/as Homes2nv (Mr Bucello), to perform duties that are the subject of some dispute between them. However, they may broadly be described as labouring duties.

Mr Bucello concedes that at all relevant times, he had not obtained a policy of insurance for workers’ compensation. The applicant was therefore entitled to make a claim against the second respondent, Workers Compensation Nominal Insurer (iCare), pursuant to section 140 of the Workers Compensation Act 1987 (the 1987 Act). ICare was named as a respondent to the proceedings, pursuant to section 142B of the 1987 Act.

There is no evidence before me of Mr Ezzell’s claim against either respondent. However, iCare issued him with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 10 July 2020. This notice referred to him having notified iCare on 27 May 2020 that he had sustained a lower back injury on 31 October 2018, whilst employed by Mr Bucello.
ICare disputed that the applicant was a worker or a deemed worker; that he had sustained injury arising out of or in the course of his employment with the first respondent; that employment was a substantial contributing factor to the injury; and that he was entitled to weekly benefits or payment of medical expenses, because he did not have a total or partial incapacity for work resulting from an injury, and medical or related treatment was not reasonably necessary as a result of an injury. ICare also asserted that the applicant had failed to give notice of his injury or make a claim within the time prescribed by sections 254 and 261, respectively, of the 1998 Act. It advised that a factual investigation was under way, and it would review its decision on receipt of additional information.
On 5 August 2020, iCare issued the applicant with a further notice pursuant to section 78 of the 1998 Act. This notice did not dispute that Mr Ezzell was a worker or deemed worker, but otherwise was in substantially the same terms as the previous notice. It added that iCare disputed that the L4 microdiscectomy requested on 19 June 2020 was reasonably necessary as a result of injury on 31 October 2018. ICare had arranged for the applicant to be reviewed by independent medical examiner Dr John Sheehy on 12 August 2020 and advised it would review its decision on receipt of his report.
On 3 December 2020, iCare issued the applicant with a further notice pursuant to section 78 of the 1998 Act. The notice was in substantially the same terms as that dated 5 August 2020. It maintained the dispute regarding the reasonable necessity of the proposed surgery as a result of injury on 31 October 2018.

By letter dated 19 January 2021, Mr Ezzell’s solicitors requested on his behalf a review of iCare’s decision to dispute liability. It provided particulars of injuries claimed to have occurred on or about 16 October 2018; in late October/early November 2018; in late December 2018; on 15 January 2019; and on 16 January 2019. The letter stated that the deemed date of injury was 17 January 2019, the applicant’s date of incapacity. ICare and the applicant’s general practitioner had recorded a date of injury in October 2018, “although this is around the time our client first started experiencing symptoms and should not be considered the correct date of injury, pursuant to the relevant legislation”.
On 2 February 2021, iCare issued the applicant with a review notice, pursuant to section 287A of the 1998 Act. It maintained its original decisions to dispute liability.

The applicant lodged an Application to Resolve a Dispute (the Application) on 2 March 2021.
The Application claimed, in summary, as follows:
(a)     On or about 16 October 2018, the applicant was removing old decking and working on his knees to install new decking. He had been working on the deck for about two weeks when he began to experience lower back pain.

(b)     In late October/early November 2018, the applicant was required to load and unload about three tons of sand; hand mix concrete with a drill; and carry the buckets so his employer could lay tiles. He continued to experience lower back pain while performing this work. He returned to the former site to finish the decking the following day.

(c)     In late December 2018, the applicant was working at a site in Daleys Point. He was required to unload machinery and carry it about 70 metres down a very steep hill over uneven ground. He also carried several bags of heavy grout. He assisted in laying tiles and worked on his hands and knees all day. He continued to experience back pain. At the end of the day, he had to reload the machinery.

(d)     On 15 January 2019, the applicant attended a job in Springfield where he was required to mix cement on a very hot day and carry the buckets of cement up a steep driveway, through the house and onto a back deck. He experienced extreme back pain.

(e)     On 16 January 2019, the applicant continued the same duties. Some time before lunch “his back gave out” and he was unable to continue. He told the (first) respondent “he had enough and didn’t want to work for him any more”. This was his last day of work for the respondent.
The Application goes on to state that in April 2020 the applicant drove to Queensland for an unrelated attendance on his psychiatrist. During the return trip, he stopped in Byron Bay. His dog got off his lead and the applicant chased it. He experienced a recurrence of lower back pain and attended Byron Central Hospital for treatment.
The injury is claimed to be a disease, deemed to have occurred on 16 January 2019. The applicant claims weekly benefits from 17 January 2019 to date and continuing; and $10,000 pursuant to section 60 of the 1987 Act, for the cost of L4/5 microdiscectomy and associated costs; physiotherapy; general practitioner and specialist reviews; and medication.
The Application failed to name iCare as a respondent, as it was required to do. However, iCare lodged a Reply on 25 March 2021.

ICare confirmed that it disputed liability on the grounds that the applicant did not sustain injury, pursuant to sections 4 and 9A of the 1987 Act; that he failed to give notice or make a claim as required by sections 254 and 261 of the 1998 Act; and it disputed liability for compensation, pursuant to sections 33, 59 and 60 of the 1987 Act.
The first respondent lodged his Reply on 29 June 2021. He sought to deny contract of service or for service; injury; that the Application was sufficiently pleaded to identify any injurious event; and placed reliance on section 20 of the 1987 Act, insofar as any injury was found to have occurred at Daleys Point.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) whether the applicant has sustained injury as alleged, and
(b) the extent, if any, of the applicant’s incapacity for work.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing by telephone on 17 June 2021.
Mr Ty Hickey of counsel, instructed by Mr Bruce, appeared for the applicant; Mr Bucello appeared in person; and Mr Grant of counsel, instructed by Ms Turnbull, appeared for the second respondent. Ms Groth of iCare was also present.

Mr Bucello submitted that he had not received copies of the pleadings, which were to have been served by the Commission. He sought an adjournment and submitted that he had evidence on which he wished to rely. I will refer further to his submissions and this evidence below.
The applicant opposed the adjournment, which was not opposed by the second respondent. For reasons given at the hearing, and which were recorded, the application for adjournment was granted.

The matter was adjourned to 16 August 2021. The Commission was directed to serve the first respondent with the pleadings at the address he provided and to email him a copy of the direction. He was directed to file and serve a Reply on or before 15 July 2021.

The matter was next listed for conciliation/arbitration hearing on 16 August 2021. Mr Hickey appeared for the applicant, instructed by Mr Bruce. Mr Goodridge of counsel appeared for the first respondent; and Mr Grant appeared for the second respondent, instructed by Ms Faapito. Mr Ezzell and Mr Bucello were present. Ms Groth attended on behalf of iCare.
Mr Hickey confirmed that the applicant relied on section 4(b)(i) or section 4(b)(ii) of the 1987 Act, with deemed date of injury of 16 January 2019, and he did not rely on any frank incident.
The applicant sought to rely on an Application to Admit Late Documents dated 2 August 2021 and attached further statement. The first respondent objected to part of the statement, which was pressed by the applicant. The statement was admitted in its entirety, for reasons given at the hearing, and which were recorded.
A dispute arose as to submissions made by Mr Bucello in support of his application for adjournment on 17 June 2021. The application was recorded. To avoid the delay that would have been occasioned by reviewing the recording, I directed that a transcript of the recording be taken out and become part of the record of the proceedings.
The first respondent did not formally seek leave to dispute the matters raised in his Reply, but no objection was taken by the applicant. To the extent that it is necessary, leave is granted pursuant to section 289A(4) of the 1998 Act. Mr Goodridge confirmed that the first respondent agreed that the applicant’s evidence was probably sufficient to establish that he was a “worker”, and he would be making no further submissions on that issue. In the event, no submissions were made on the possible application of section 20 of the 1987 Act.
Counsel for the second respondent made no submissions on the issues of “notice” and “claim”; and the first respondent did not raise these as issues in dispute. Counsel for the second respondent confirmed that the main issue for determination is whether the applicant has sustained injury arising out of or in the course of his employment with the first respondent.

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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a)    the Application and attached documents;

(b)    Reply by first respondent and attached documents;

(c)    Reply by second respondent and attached documents;

(d)    Application to Admit Late Documents and attached documents dated 11 June 2021, filed by the second respondent;

(e)    Application to Admit Late Documents and attached documents dated 2 August 2021, filed by the applicant, and

(f)    Application to Admit Late Documents and attached documents dated 10 August 2021, filed by the second respondent.

Oral evidence

There was no application by any party to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Robert Ezzell

Mr Ezzell has made three statements, the first of which is dated 18 June 2020. It was provided to an investigator retained by iCare.
Much of the statement addresses the issue of “worker”. In view of the withdrawal of the dispute as to whether Mr Ezzell was a worker by iCare, and the concession by Mr Bucello, it is unnecessary to consider that evidence.
The applicant has post-traumatic stress disorder (PTSD) due to a home invasion in 2011. He consults Dr Sandeep Chand in Queensland for this condition. His usual general practitioner is Dr Yogesh Kalra at Bateau Bay. He has been seeing Dr Kalra for about three years, since moving from Queensland. He did not have a regular GP in Queensland.
Before the injury, the applicant went jogging, surfed three or four times per week, and walked the dogs daily. He has not been able to do any of that since the injury. He has sustained no relevant injuries in the past. He has never made a previous claim for workers’ compensation.
The applicant’s previous employment included store person, delivery driver and machine operator. He worked as a machine operator for about 12 months between 2015 and 2016, but his PTSD increased significantly, to a point where he was no longer able to work.
Mr Ezzell first met Mr Bucello in September 2018, when Mr Bucello was engaged by Mr Ezzell’s mother to renovate her bathroom. Mr Ezzell had recently returned home from Queensland. He assisted by gutting the old bathroom and cleaning up. He did this without a problem and independently and did not experience any pain in his lower back.

Mr Bucello told the applicant he was impressed by his work ethic and asked if he would be interested in doing carpentry work for him, undertaking a mature age apprenticeship. The applicant “decided to go with it”. He had discussed his PTSD with Mr Bucello and thought this would be an opportunity to get back on his feet, get on with his life and get back into the workforce.
The applicant was on a Disability Support Pension, so he contacted Centrelink about the offer and was told he had to register with the Job Centre in Gosford, which he did. They told him he had to report to Centrelink if he worked more than nine hours per week. They would liaise with Centrelink, TAFE and Mr Bucello while he undertook the apprenticeship and would advise Mr Bucello of possible government incentives.
The Job Centre unsuccessfully attempted to contact Mr Bucello over the next three months to arrange signing the apprenticeship contract, and it was never signed. They advised Mr Ezzell they were having problems contacting Mr Bucello. The applicant told Mr Bucello this, and he said he would sort it out, but he never did.
The applicant was never paid for any of the work he did. He asked about completing a form with his tax file number, but Mr Bucello said he didn’t have one and it wasn’t how it worked. He can’t explain how Mr Bucello worked out how much he was to be paid because it seemed very complicated. There wasn’t an hourly rate as such, but his pay was supposed to be calculated depending on how many hours he had done. Mr Bucello would tell him by telephone where, and what hours, he was to work the next day. There were no set hours.
Just before Christmas 2018, Mr Ezzell dropped and broke his phone, so he had to get a new one. He had been recording his hours in the phone, but no longer had them. The records would have gone from October 2018 to December 2018. He had records of the work he did after he got a new phone on 19 December 2018. He sustained his work injury in October but did not have a record of the hours he worked that day. He calculated that he worked about 87 hours in total before he stopped work for Mr Bucello.

Between October 2018 and December 2018, the applicant worked at an address in Toukley, where he was asked to complete some decking. On about 16 October 2018, he was removing old decking and working on his knees to install the new deck. He was required to lean forward and as he did this he began to have pain in his lower back. He had been working on the deck for about two weeks at that stage.
The applicant told Mr Bucello he had pain in his lower back, and he said it was because he had not been working for a long time. The pain was slightly relieved with a hot shower and anti-inflammatory cream. He had to work at a slower pace, and with difficulty and discomfort. He didn’t seek treatment. The work was completed on 22 December 2018.
In about late October/early November 2018, the applicant was asked to do some waterproofing at a site in Mangrove Mountain. There was a large pile of sand, which he estimated as about three tons, that he needed to shovel by hand into the ute and deliver to Umina. He told “them” (assumed to be Mr Bucello) about the pain in his back and that he didn’t want to do it. Mr Bucello told the applicant to just do it because they needed the sand at their job.

The applicant shovelled the sand into his ute and took it to the site where Mr Bucello was working. He shovelled it into buckets and walked it to Mr Bucello. He then mixed concrete and carried the buckets to Mr Bucello to lay the tiles. There were two other workers doing the same job – Cameron Ford and “Hayden”, a 16-year-old apprentice. The applicant did not have their contact details.

The applicant’s back was very sore, and he complained that he was unable to do the work. Mr Bucello told him to get on with it, and the quicker they got it done, the quicker they could get off the site. He had been working for about two hours when he couldn’t do it any longer. He complained again and Mr Bucello said he could go home. He had expected to do carpentry work and wasn’t expecting to do physical labour. He felt he had to do the work to get his apprenticeship.
Mr Ezzell sought medical treatment for the first time in October or November 2018. He saw his general practitioner about the pain in his lower back and he did some tests that involved him lying on the ground and lifting his legs. He would also have a hot shower and rub some anti-inflammatory cream into his lower back, which relieved it somewhat. He didn’t do any more work at Mangrove Mountain.
The next day, Mr Ezzell went back to the Toukley site. This was where he completed most of the work. His back was stiff and sore, and he was having difficulty working on the decking.
The applicant worked at Toukley for about one to two weeks. Just before Christmas 2018, Mr Bucello called him and said he needed to go to a site in Daleys Point the next day. He was asked to take all the machinery from the back of the ute and take it down a very steep hill towards a boat shed about 70 metres away. It was so steep that there was an inclinator to use to get near the shed. He took several bags of heavy grout to the shed. He was required to walk along uneven ground to get there.
The applicant was required to mix up the mud to lay tiles, cut and lay them. He wasn’t aware he was going to be working as Mr Bucello’s labourer for the day. He was working on his hands and knees all day, which caused significant pain in his lower back.

Mr Ezzell complained to Mr Bucello about the pain, and he didn’t say anything, but just ignored it. At the end of the day, he cleaned out the buckets and where they had been working. Mr Bucello didn’t help him, but sat watching, and was on his phone while the applicant was working. He had to load all the machinery back from the shed to the ute. He worked on this site for two days.

The applicant did not seek further medical treatment and would just rest, have hot showers and apply anti-inflammatory cream.

The applicant returned to the Toukley site and the job there was finished on 22 December 2018. Around this time, he told Mr Bucello that if the job involved lots of manual labour, he would not be able to do it, and he was reconsidering whether working in the building trade was right for him. Mr Bucello said he didn’t always have carpentry work so there would be more physical work in those periods.
This was “when things started to become extremely frustrating”. Mr Ezzell’s mother “had had enough” because Mr Bucello would not turn up to complete the renovation and would go to other jobs. The work he had completed was very poor quality and the applicant’s mother didn’t want him back. She was taking legal action to recover money she had paid for uncompleted work.
The applicant didn’t speak to Mr Bucello through Christmas. He tried to contact him on 6 January 2019 to ask when he was to be paid, and he didn’t respond. The applicant received a text on 14 January 2019, telling him to go to a job site in Springfield. He went the next day. He also wanted to address the issue of the work for his mother.
At Springfield, the applicant was told he would be working with the apprentice and mixing cement. It was very hot, and he was required to carry full buckets of cement up a steep driveway, through the house and onto a back deck. It was extremely difficult and very physically demanding.
The applicant’s lower back was extremely painful, and he complained to Mr Bucello during the day. He was never offered a break and “he basically just told me to suck it up” and get the work done.
On 16 January 2019, the applicant continued the work. Some time before lunch, his back “gave out” and he wasn’t able to work. He felt a sharp pain and a click. It felt like a shooting pain that went up his back. This was the “final straw” and he told Mr Bucello he had had enough and didn’t want to work for him any more. Mr Bucello never paid him for any of the work.
Either on 16 January 2019 or the following day, the applicant went to his GP and told him what had happened. He was referred for a CT scan. When the results came back, the doctor recommended a cortisone injection, which was done about four to six weeks later. It helped slightly with the pain, and the applicant would say there was about 20% improvement.
Since then, the applicant had been in a lot of pain with his lower back. He hadn’t been able to do any of his usual activities and struggled to do everyday things, such as mowing the lawn. He had been unable to work and unemployed since leaving the job with Mr Bucello.
In April 2020, the applicant went to Queensland to see his psychiatrist. He was in Byron Bay on the drive back and his dog got off his lead and he had to chase him. He experienced severe pain in his lower back and went to Byron Bay Emergency Department.
It should be noted that the applicant’s typewritten statement attached to the Reply, but not the one in the Application, states that the date that he travelled to Byron Bay was April 2019, but “19” has been crossed out and “20” has been handwritten above it. The alteration is not initialled. This appears in paragraph 77 of the statement.
The applicant had some scans and was given Endone. The doctor told him he may require surgery in the future. Because of the pain, he took three weeks to drive back to Sydney. He has been treated by his GP since the injury occurred. After he returned from Byron Bay, he was sent for another cortisone injection. He was spending his own money on scans and medication.
Mr Ezzell saw a solicitor, Coastal Compensation Lawyers, to find out where he stood. This was initial advice, and they were not acting on his behalf at that time. They told him that as the injury occurred while he was working, he was eligible for workers’ compensation and should lodge a claim. He wasn’t aware of this, which is why there was a delay in him lodging the claim. He went back to his GP, who submitted the claim for him.
The applicant thought he was about 20% fit at that time. He could not walk the dog or go running or surfing. He could not ride his bicycle or motorcycle, swim or go water-skiing. He could not draw or paint or play with his niece and nephew. He could not drive a manual vehicle because he could not use the clutch with his left leg. He could not lift, bend or carry, drive for long periods or travel. He could not mow the lawn, garden or even put out the bins. He had difficulty walking up stairs. He could not do his own cooking or cleaning, so had to remain living with his mother. He found it hard to sleep at night and took Panadeine forte for pain. There had been an increase in his PTSD, for which he was taking medication.
Mr Ezzell’s second statement is dated 1 December 2020. His claim had been declined, and he was making the statement to address “medical causation” of his injury. The statement was to be read in conjunction with his first statement.
The applicant repeated his evidence of the events on 16 January 2019. He corrected his earlier statement, saying it was not in October or November 2018 that he sought medical treatment for the first time, but it was in 2019. (Emphasis in original).
The applicant initially thought he had simply pulled a muscle in his back, and the pain would alleviate with rest from physical work. He told his mother about his back pain. She had some very strong medication, which she gave to him. She also rubbed Voltaren into his lower back.
In late 2018 and throughout 2019 the applicant saw his GP a number of times for removal of skin cancer. It became infected. On 5 November 2018, he attended Dr Kalra for a pre-booked skin cancer removal. As he was lying prone, he felt pain in his lower back. He said words to the effect of “My lower back has been sore. I hurt it working.” Dr Kalra said the consultation was for his skin cancer and he would have to make a separate consultation for his back. He did not observe Dr Kalra to record any notes of the discussion of his back pain.
Due to the doctor’s abrupt response, and as he was uncomfortable with a freshly excised neck wound, the applicant didn’t press the issue further. He went home and spoke to his mother. She asked if he had told the doctor about his back. He replied that he had. He didn’t think the doctor took it seriously. He didn’t check it out, take any notes or give him medication. He didn’t do an examination either.
As Dr Kalra is Indian, the applicant sometimes found it hard to communicate with him and explain what was going on. On many occasions they have misunderstood each other. However, Mr Ezzell started and has continued seeing him as his practice is five minutes away and he is his mother’s usual doctor.
The applicant is “not the type of guy who goes to the doctor for any old thing.” He nicked his thumb with a saw while working for Mr Bucello. He did not go to the doctor but cleaned and bandaged the wound. He experienced nicks, bumps, bruises, aches and pains while working for Mr Bucello. This is why he didn’t go to his doctor and make more noise about his lower back until after ceasing work, when his back pain got to a point where he could barely walk. He thought it would get better by itself.
If the applicant’s mother doesn’t push him to go to the doctor, he won’t go. He will instead stay at home and rest and try to feel better. His mother pushed him to get the moles on his neck checked. This is the reason he didn’t book another appointment to discuss his lower back with Dr Kalra. The strong medication he was prescribed for his skin cancer helped manage his lower back pain. He continued to self-manage it with hot showers and Voltaren cream, which his mother continued to rub into his back several times a day.
The statement then referred to attendances on Dr Kalra between 31 January 2019 and 18 February 2020. It is clear that the applicant had referred to the doctor’s clinical records, and I will discuss those attendances below.
The applicant regrets not being more specific with Dr Kalra and reiterating what he told him earlier in the year about hurting his back at work when he attended on 27 November 2019. His back had never recovered after ceasing work and he felt it only got worse. He had a series of flareups, any time he took out the bins or mowed the lawn, which isn’t big. He felt sharp pulling pains in his back, like his back was sitting on a knife. When the flareups happened, he basically couldn’t move. He also started experiencing shooting pains down his left leg into his foot.
In late February 2020, the applicant took his dog and drove to Queensland to see Dr Chand. He towed his caravan, in which he stayed. He saw Dr Chand on 29 February 2020. He stayed near Kirra Beach for about one week. Aside from the temporary relief from the cortisone injection, his back pain had persisted from the year prior. He had to take his time driving to Queensland. The trip took longer than it should have because he had to stop and stretch so often.
The applicant commenced his trip back in early March 2020, stopping in Byron Bay, where he planned to stay a week or so. He was enjoying the town and paid for extra nights at the caravan park. His back pain persisted.
On or about 23 or 24 March 2020, the applicant was walking his dog, Harley, along the beach. Harley got off the leash and bolted. The applicant had to run after him. He felt excruciating pain in his back, radiating down to his groin. He had to stop running and bent down on the sand. He was in agony. The pain was just like it was when he ceased work. It was like a knife was held to his back.
Harley came back and Mr Ezzell walked him back to the caravan park. He didn’t have any pain killers but lay on the bed, not able to get up or stand.
On 25 March 2020, the applicant went to Cape Byron Medical Centre and saw Dr Pramuk Jayatilake, who prescribed medication. The medication did “absolutely nothing” for the pain.
On 27 March 2020, Mr Ezzell went to Byron Central Hospital. He had a few scans and was given Endone. He was there for about three hours or so. The doctor told him he may need to see a neurosurgeon and have surgery in future.
The applicant made an error in his original statement in saying he visited Byron Bay in 2019. He visited in March/April 2020, not April 2019. (Emphasis in original). He brought this error to the investigator’s attention after his statement was signed. The fact that the statement in the Reply has been altered by hand, and is attached to the investigator’s report, and the alteration is not initialled, suggests it may have been altered by the investigator, although it is not possible to be certain of this.
On 31 March 2020, the applicant went back to Dr Jayatilake, who referred him for an MRI scan and prescribed pain relief. It took him three days to drive back, as he had to stop and rest his back frequently.
The applicant consulted Dr Kalra on 3 April 2020. They discussed his back pain and CT scan results, which showed a large disc protrusion at L4/5. Dr Kalra gave him a referral for further cortisone injection on 6 April 2020.
The applicant referred to further consultations with Dr Kalra, which I will also discuss below. On 21 April 2020, Dr Kalra referred Mr Ezzell to Dr Stephen Chung, physician. Dr Chung was to be bulk billed.
Mr Ezzell saw Dr Chung on 14 May 2020. Dr Chung believed he would benefit from seeing a pain specialist. The applicant was unimpressed with Dr Chung. The appointment seemed like a waste of time. He did not look at any of the scans. It appeared that he had hired consulting rooms, as the office was completely empty. He did not have any equipment or computer on which to view the scans. He had a conversation for about 20 minutes. He did not perform a physical examination. He has an incorrect history of the applicant having a “cracked back a few decades ago”. He never had a cracked back at any point before working for Mr Bucello. He never told the doctor he had a previous back injury. He is not sure why he recorded this, “but it is absolutely not true”.
On 19 May 2020, the applicant told Dr Kalra about the appointment with Dr Chung, and that he was unimpressed. He discussed his lower back injury at work with Dr Kalra.
By this time, the applicant had spent a lot of money on scans. He did some Google searches into workers’ compensation claims and found out there were time limits in lodging a claim. He wasn’t sure what, if any, compensation he might be entitled to, but thought he had better make enquiries, given that he hurt his back while working.
On 22 May 2020, the applicant spoke to “Margaret”, a legal secretary at CBD Law (Coastal Compensation Law Specialists). She gave him some general advice about workers’ compensation claims and said he needed to lodge a claim form. She emailed him a copy.
The applicant visited Dr Kalra the same day and told him he was interested in lodging a workers’ compensation claim. Dr Kalra helped him fill out a claim form and Certificate of Capacity (COC), which he later lodged with iCare. Dr Kalra referred him to Dr Marc Russo, a pain specialist, based on Dr Chung’s recommendation.
On or about 11 June 2020, Dr Kalra referred the applicant to Dr Marc Coughlan, neurosurgeon. He saw Dr Coughlan on 19 June 2020. Dr Coughlan was of the opinion that he needed a L4/5 microdiscectomy. He understands that Dr Coughlan sought approval for this procedure.
The applicant saw Dr Russo on 20 June 2020, when he performed some tests. He discussed his specialist consultations with Dr Kalra on 22 June 2020. He has not seen any specialist since Dr Russo.
Mr Ezzell continued to see his GP and take medication. He wore a back brace and took daily 20-minute hot showers. He had the same restrictions to which he referred in his first statement.
The applicant’s final statement is dated 2 August 2021. It was made to address statements made by Mr Bucello.
The applicant denied agreeing to work for free. Mr Bucello sent him to various work sites and continued to tell him he would pay the wages owed, which he did not honour. He did not agree to being a volunteer.
The applicant denied being given any paperwork for Mr Bucello by Job Centre Gosford, or by Centrelink. He believed the Job Centre contacted Mr Bucello at some point and he abused the “lady”. Job Centre advised him of this.
Mr Ezzell denied any involvement in a “road rage incident”, in the company of Hayden, to which Mr Bucello referred in his statement. He denied any conversations in which Mr Bucello questioned and reprimanded him.
The applicant also denied being a “chronic marijuana smoker”. He never attended work whilst on drugs. He takes anti-depressants for his PTSD, depression and anxiety and would not be able to function if he took them with any illicit substance. He does not even drink alcohol.

Evidence of the first respondent, Justin Troy Bucello

Mr Bucello’s first statement is dated 2 July 2020. It was also provided to the investigator retained by iCare.
Mr Bucello stated that he did not have any employees, although he had subcontractors. He knew the applicant by the name of Robert Banks. He was never formally engaged as a subcontractor but performed some work on a trial basis.
Mr Bucello met the applicant when he did some work on the property of his mother, Ms Caroline Banks. Mr Ezzell said he had been out of work for years and was suffering from depression. While Mr Bucello was renovating the property, he showed initiative and prepared materials for the following day in advance. Mr Bucello encouraged him, and he said he wanted to gain some skills. He often asked questions and Mr Bucello gave him advice.
After about two weeks, the applicant said he would like to do an apprenticeship. This was something the government offered to get people off the dole. Mr Bucello said it sounded like a good idea. When he came back over the next few days the applicant had the paperwork and a contract from the Centrelink pre-apprenticeship training course. The applicant hadn’t done any work with Mr Bucello and expected him to sign the forms. He said that wasn’t going to happen until the applicant had done some work on a trial basis.
Mr Bucello spoke to Centrelink. They called and said the applicant would only be required to work one day per week. They were informing him of his obligations if he took the applicant on as an apprentice. He discussed this with the applicant and said one day per week was not going to give him much income, and he may be able to find him some work as a tilers’ labourer. The applicant said he was keen. Mr Bucello intended to pay him $25 per hour. The applicant worked irregular hours, except for one period, when he spent about two weeks on the job site.
Mr Bucello was doing a job at Toukley. It was a very simple job, replacing some decking. He asked the applicant to assist. He was required to use a crowbar to remove decking boards and take them to the front of the house. The joists also required re-nailing. Mr Bucello was on site and provided instructions. As Mr Ezzell had no experience, he was slow to start but was able to do the work. Mr Bucello then showed him how to lay new decking. The applicant did work on his own, but only for very brief periods.
At no point did the applicant complain of any injury or say he had hurt his back. He did mention being tired, but Mr Bucello told him this was probably because he had not worked for a long time and it might be a shock to his body.
As regards the work at Daleys Point, the principal contractor was the owner of the building, who had an owner/builder licence. Mr Bucello knew him only as “Daniel”. He had done work on three of his properties for a number of years. The applicant was not tiling, the work was not particularly heavy and involved mixing glue and general labouring. At no time during those two days did he complain of pain or injuring any part of his body.
As regards the work at Central Mangrove, it is not the case that the applicant was instructed to do some waterproofing and shovel three tons of sand. Mr Bucello does not recall instructing him to do any waterproofing. It is a job for an experienced tradesperson and can’t be undertaken by someone with no knowledge of it. If he was instructed to do anything, it could potentially be preparation only, which would involve applying primer to the intersections.
It is certainly not the case that the applicant had to hand shovel three tons of sand. That is a huge amount and there is no way it would go into his ute, which would only hold 700 kg maximum. The sand had already been delivered to the site. They were running short, so Mr Bucello asked the applicant to bring three to five buckets with him to the site. A bucket weighs 15 kg. The applicant brought the buckets and never complained. He certainly never complained of back pain and if he had said he was in pain Mr Bucello would have told him to have the day off.
When the applicant arrived at the site, Mr Bucello showed him how to mix. There were two others working with him. It was quite a big job and took two days. Mr Ezzell worked for the first day and did not complain or make any comment about being in pain.
At about this time, the applicant offered Hayden a lift home. Mr Ezzell called Mr Bucello that afternoon and told him he had been involved in a road rage incident where he was the victim and had been threatened. The next day, Hayden told him Mr Ezzell had been the instigator. Someone had stuck a finger up at him, so he followed them for about two kilometres and pulled in front of the other car, blocking a two-lane road at traffic lights, and got out to confront the other driver. Hayden had been terrified.

Mr Bucello asked the applicant about the incident the next day. This is when his temperament started to change. He categorically denied it. Mr Bucello trusted his apprentice because he had worked with him for a while, he is the son of a friend, and he knows him to be honest.
The applicant did not respond well to being questioned. There had been a previous incident involving his neighbour and a young daughter. Mr Bucello had seen the neighbour calling out the applicant for a fight. The applicant was threatening to call the police. He denied anything had taken place with the daughter, but it made Mr Bucello feel as though “there was something not quite right” with him.
On the second day of work at Springfield, the applicant began mixing cement. It was a hot day, and he was working with Hayden. Mr Bucello made sure they were in the shade and told the applicant to drink plenty of water. After about two hours, the applicant “just lost the plot and stormed off”. He took off the shirt he had been given, swore in front of the clients, grabbed his water bottle and stormed off.
Mr Ezzell told Mr Bucello he was using him as a tilers’ labourer when he should have been given carpentry work. This was not the case, as he was only required to give the applicant one day’s carpentry work per week, which was all he had available. Most of his work was tiling, and the applicant knew he would be working as a labourer the rest of the time. The work was going to be outside his apprenticeship, which hadn’t started because he was still in the trial period. Mr Bucello wasn’t convinced he would be a good fit for the team.
After the applicant stormed off, Mr Bucello gave him about five minutes to cool off and went to see if he was okay. He was sitting at the shops waiting for Ms Banks to pick him up. He said he didn’t want to talk to Mr Bucello, who said okay.
Mr Bucello tried to talk to Ms Banks about completing the work at her house. Mr Ezzell said he didn’t want him to attend the property. There were still materials and tools on site, and he never got them back. Shortly after, he received a letter seeking a full refund of the deposit. He had completed a bathroom four months before with which they were happy, but “now all of a sudden they were not happy with it any more”.
Mr Bucello never went back to the premises. The matter was sent to the Small Claims Court. He did not receive the paperwork until the day before, as it was sent to the wrong address. He sought an adjournment but had not heard anything further about the matter.
The applicant had also contacted Fair Trading and accused Mr Bucello’s contractors of taking drugs on site. It was the applicant who was a chronic marijuana smoker. Mr Bucello could see one day that he was affected by drugs, so he sent him off site. This happened at about 10am, when he was working at his own house. Mr Bucello believes Mr Ezzell made the complaint vindictively to affect his business.
The applicant was only involved in small parts with four jobs before he stormed off and never did any work for Mr Bucello again. He believes the total hours were about 50, aside from the work on Ms Banks’ house.
Mr Ezzell was paid a one-off payment of $500 for the work he did in his trial. Mr Bucello was to do some concreting at Ms Banks’ house, and he was to hold off the invoice for that work and take Mr Ezzell’s payment out of it. This was agreed with Mr Ezzell.
At no point during the period when the applicant worked with Mr Bucello did he complain of injury or being in pain. If this had been the case, he would have instantly told the applicant to leave the site and found someone else to complete the work.
Mr Bucello had never had an injury to any of his subcontractors and has never had a claim lodged against his policy. (In fact, he did not have a policy.)
Since the applicant stopped working for Mr Bucello, he had “caused me nothing but issues”, resulting in him becoming depressed and affecting his previous relationship. He believes the applicant is lodging the claim as a vindictive means to obtain money deceptively. He believes the applicant has done this in the past as when he first met him, he had just returned from Byron Bay and had received a substantial payout. Mr Bucello was not sure where he got the money, but he bought a new car and motorbike and had plenty of money.
Mr Bucello has made a second statement dated 29 June 2021. The statement is in some respects inconsistent with his first statement and provides additional detail.
As Mr Bucello was renovating Ms Banks’ home, Mr Ezzell looked on and showed keenness and did some small tasks. Mr Bucello thought he was doing the applicant and his mental health a favour. He was motivated by charity. He had lent the applicant a “Kanga”, which had not been returned.
The applicant started occasionally coming to other sites and would usually help without being asked. Mr Bucello considered this an extension of him finding purpose in his life and did not discourage it. He told Mr Ezzell he was welcome, and he could teach him some things if he did not make a nuisance of himself, “but I hope you don’t expect to get paid”. Mr Ezzell said he wanted to learn and didn’t expect to get paid.
Mr Bucello had in mind a give and take relationship. If the applicant was useful and worked hard, he would not have begrudged reducing the cost of Ms Banks’ work or giving him some cash from time to time. He did not intend to provide regular work or set hours. He did not intend any relationship approaching that of employer and employee.
Mr Ezzell asked Mr Bucello to take him on under a Centrelink scheme as a mature age apprentice. This did not eventuate, and Mr Bucello referred to his first statement.
Mr Ezzell did not have and never has held a workers’ compensation policy, because he is a sole trader with a modest tiling/handyman business. If the jobs exceeded his ability, he would subcontract those tasks or work with other contractors. He did not have any employees. The business had failed, and he was no longer trading. He was being treated for depression.
The statement referred to a number of “relationship fractures”, some of which have already been addressed in the first statement.
Ms Banks reported that Mr Bucello was an unlicensed trader. He had offered to refund her money. She declined his offer and began legal action against him in NCAT. She filed copies of bank statements, purportedly showing withdrawals from both her and Mr Ezzell’s account to pay him. The bank statements are attached.
Mr Bucello did not defend the NCAT proceedings as he was not served with the documents in time to do so. A certificate in favour of Ms Banks was issued on 16 December 2019. In any event, he had no money to pay a lawyer and a judgment against him was worthless. He had no savings due to a gambling habit.
The process of how a judgment is obtained had been explained to Mr Bucello. He did not know who had sworn the affidavit of service, but some mistake or possibly false statement had been made.
On the day before the case, Mr Bucello told the applicant and Ms Banks he had no money and there was no point suing him. He asked if they could agree on an arrangement. Mr Ezzell said “I will make you bankrupt.”
Mr Bucello had not been served with any judgment, but he knew Ms Banks obtained judgment on 20 January 2020, because a sheriff turned up to take property to satisfy it. He truthfully said he didn’t own anything of much value, and the sheriff left. The statement attaches a copy of the Writ for Levy of Property. Mr Bucello had once mentioned to Mr Ezzell that he loved music and played a guitar. The Writ sought “tools, guitar, music [sic] instruments”. He later received an Examination Notice requiring him to respond by 28 July 2020.
In or about December 2020, Mr Bucello was driving along the Central Coast Highway when the applicant and his mother drove alongside him. The applicant opened the door of the car and yelled: “I am going to get you, you prick. I know where you live.” He lived in fear of Mr Ezzell and suffered severe depression. He had moved house so Mr Ezzell wouldn’t be able to harm him.
These proceedings were commenced without Mr Ezzell ever making any complaint or report of injury to Mr Bucello. He believes they were a continuation of Mr Ezzell’s campaign against him, the allegations are false and motivated by animus. He could not believe that any genuine claim would not have been raised before these proceedings.
Mr Bucello continued to fear Mr Ezzell. He didn’t want anything to do with him. He had had to participate in a telephone conference and was so concerned he asked that his address not be disclosed but was told this was not possible. His new address was given to Mr Ezzell, his solicitor and the solicitor for the Nominal Insurer.

Correspondence between Caroline Banks, the applicant and Mr Bucello

On 6 February 2019, Ms Banks wrote to Mr Bucello requesting a full refund of money paid for renovations and improvements to her home. She complained that he had ignored all requests from her and “Rob”.
Ms Banks made several complaints about Mr Bucello’s work. She requested a reconciliation of any costs he had incurred, and that he include unpaid wages owing to Rob. The letter is co-signed by the applicant. There is no mention of any injury sustained by the applicant while working for Mr Bucello.
There are several text messages, which, from their context, were sent in March 2019 (the year in which they were sent does not appear on the documents).
On 17 March 2019, Ms Banks expressed disappointment that Mr Bucello had ignored her and asked him to refund money she had paid.
Mr Bucello responded that he only took on the other side [sic: site] to “help your son with motivation and depression issues…” While they were waiting for the concrete to cure, they filled the week with a screed and tile job, of which he (the applicant) was aware. He went on “Yes it was two very hot days, and the heat got to us all. But if he had concerns he should have spoken to me. Instead he chose to do it the way he did”.
Mr Bucello stated that for the applicant’s mature age apprenticeship, all he had to do was give him eight hours a week. He thought this wasn’t enough work and said he could fill some other days with some tiling labourer’s work. He stated that Ms Banks now wanted to “throw the book” at him because the applicant had a “moment”. He was greatly disappointed by her actions and those of the applicant and was hesitant to help anyone with “issues” again.
Ms Banks responded that this was business and Mr Bucello had made it personal. He didn’t help the applicant but used him and “be careful what you say”. She also asked if he had organised the repayment of the money owed to her and the applicant. If he was going to ignore her, she would have no option but to bring legal proceedings on Monday.
On 10 April 2019, the applicant sent the first respondent an email with the subject line “Wages”. It advised that he had been informed by the Fair Work Australia Ombudsman that under the award he was owed $2,274.18 for 87 hours work. It requested payment by 12 April 2019.

Medical evidence

Dr Yogesh Kalra

Dr Kalra’s clinical records commence on 6 February 2018. In view of the factual dispute in this matter, I believe it is necessary to refer to them in some detail.
On 6 February 2018, the applicant attended with his mother. Dr Kalra recorded that Mr Ezzell had been involved in a home invasion five to six years ago. He noted several details about that event and its aftermath. The applicant had been working as a storeman and had lost his job. He was seeing his psychiatrist once a month. The reason for contact was PTSD.
The applicant consulted Dr Kalra on 22 March 2018, again accompanied by his mother. He was diagnosed with “URTI (upper respiratory tract infection) – Bacterial”. Dr Kalra recorded details of his symptoms, counselled him about the harmful effects of smoking, and encouraged him to give it up.
On 29 March 2018, the applicant attended for URTI. He was “still coughing” and “chest still congested”. Dr Kalra noted that he had seen a psychiatrist in Queensland and would now be seeing a psychologist monthly.
On 6 April 2018, the applicant attended, with his mother. He had URTI symptoms. “Claim has been accepted” (This is not related to this matter). He would continue to see his psychiatrist and psychologist regularly.
On 19 April 2018, the applicant was again accompanied by his mother. He suffered from PTSD and major depression and was due to see his psychiatrist in May. Forms were filled for “super release”. The reason for contact was PTSD.
On 11 May 2018, Dr Kalra recorded that the applicant had attended for “first skin check”. There is a detailed account of the examination and the advice given about sun protection. Dr Kalra added a “recall” for skin check, due on 11 April 2019.
On 4 October 2018, Dr Kalra recorded that the applicant had requested excision of a cyst on his neck. He also noted that the applicant’s next appointment with his psychiatrist was in November, that he was struggling with PTSD and had a disability pension. Dr Kalra recorded a detailed account of the procedure he performed. He gave the applicant written instructions and was to review the wound in seven days. Once again, he encouraged the applicant to give up smoking.
On 11 October 2018, Dr Kalra recalled Mr Ezzell to discuss his results. He has again written a detailed account of the consultation and his advice. Surgery was booked for two weeks’ time.
On 29 October 2018, Dr Kalra recorded that the reason for visit was pathology referral.

Dr Kalra recorded on 5 November 2018 that the applicant had been feeling anxious. He had not seen his psychiatrist as he had missed his flight and his next follow up was in January. He had been getting physical and emotional anxiety. Dr Kalra excised a lesion on the applicant’s neck, and again wrote a detailed account of the procedure, and “written instructions given”. The reason for contact was recorded as “Excision of BCC (basal cell carcinoma)” and anxiety.
On 15 November 2018, Dr Kalra recorded a follow up consultation. The applicant was advised he would need a further wide excision and booked for re-excision. The reason for contact was stitches – removal.
Dr Kalra recorded on 14 December 2018 that the applicant was attending therapy, “nil for 2 months”, and his next follow up was in February 2019. He recorded the medication the applicant was taking for his psychological condition. Once again, Dr Kalra performed an excision of the applicant’s neck and recorded details of the procedure. The applicant was given written instructions and the wound was to be reviewed in seven days.
The applicant presented for follow up consultation on 27 December 2018. Dr Kalra recorded details of the excision. The applicant was advised to have a wider excision as the BCC was of the infiltrative type. The wound had healed well.

On 10 January 2019, Dr Kalra recorded that the applicant was accompanied by his mother. There had been an altercation with the neighbour who lived at the back, who had said the applicant threatened his wife and child while he was mowing his lawn and had threatened to harm Mr Ezzell. This had been reported to the police. The applicant was stressed and feeling anxious with panic symptoms. His psychiatrist had been away.
On 31 January 2019, the applicant underwent wider excision of infiltrative BCC. Dr Kalra recorded details of the procedure, provided written instructions and was to review the wound in seven days.
On 11 February 2019, Dr Kalra noted wound infection. The stitches were removed and the wound was cleaned and dressed. Once again, Dr Kalra encouraged the applicant to give up smoking, and advised spirometry.
Dr Kalra recorded on 7 March 2019 that the applicant had had dental treatment and was booked for further treatment that afternoon. He noted “court proceedings – going for mediation next month”. The reason for contact was general consultation.
On 11 April 2019, Dr Kalra recorded that the applicant was seeing the dentist tomorrow for crowns. He had court that morning and had been stressed with the neighbour’s behaviour. He had an appointment with Dr Chand on 24 April. The reason for contact was general consultation.
On 21 May 2019, Dr Kalra recorded that the applicant had an appointment with his psychiatrist on 24 June. He had to go to court tomorrow – “had problems with his neighbour”. He had been feeling low [dealing] with all this. He had seen a solicitor. He had been in touch with his psychiatrist and psychologist. He was struggling with finances. He had four crowns and the pain was manageable.
On 8 November 2019, Dr Kalra recorded that the applicant had not attended therapy for a few months. He noted the applicant’s medications. The applicant had a SCC (squamous cell carcinoma) on his face. Dr Kalra performed a biopsy. He recorded details of the procedure and provided advice as to future management. He also told the applicant to contact the surgery if he noted swelling, redness or pain, and provided him with the afterhours contact.
The applicant attended on 14 November 2019 for a skin cancer check-up. Dr Kalra recorded having discussed the procedure of skin examination and performed an “extensive examination”. He again provided the applicant with advice on UV protection. The recall was changed to 14 June 2020.
Dr Kalra performed excision of SCC on 19 November 2019. He recorded details of the procedure and written instructions were given to the applicant. He explained the risks, that there may be dissatisfaction with the appearance of the wound healing, and that it may require regular dressings for weeks.

On 27 November 2019, Dr Kalra recorded that the applicant had “lower back pain when got up from bed”. He was gardening on Saturday. On examination, there was no radiation to the legs; no pins/needles; no numbness; limited forward flexion; other range of motion was good; straight leg raising was 60 degrees in both legs. There was bilateral spinal tenderness in the lumbar area.
Dr Kalra recorded a follow up consultation on 4 December 2019 as “pain persists”. The applicant “has x-ray” for the “T_L” (thoraco-lumbar) area from 2001 – “minor changes”. Dr Kalra noted pain in the central spine L3-L5, markedly restricted forward flexion and bilateral straight leg raising restricted to 60 degrees. He requested x-ray of the lumbosacral spine and CT of the lumbar spine.
On 6 December 2019, the applicant was recalled to discuss the results and reports. Dr Kalra noted that there was no radiation of pain to the legs, no numbness in the legs, “plantars flexors”, ankle jerk was normal, “muscle strength lower limb flexors and extensors 5/5 B/L” (bilateral). There was no sensory deficit and no bowel or urinary symptoms. The CT scan was discussed, and MRI of the lumbar spine was requested.
On 19 December 2019, Dr Kalra recorded that the MRI had shown left L5 nerve root compression. Treatment options were discussed, and CT guided cortisone injection to the left L5 nerve root was requested.
Dr Kalra recorded on 13 January 2020 that the applicant had a cortisone injection booked for the next week. There was no radiation of pain to the leg. The applicant had an appointment with his psychologist next month.
On 18 February 2020, Dr Kalra recorded that the applicant’s pain had improved for only a week after the cortisone injection. He had not been doing manual work. He had an appointment with his psychiatrist.
Dr Kalra recorded on 3 April 2020 that the applicant had back pain with left leg pain. He had been in Byron Bay, but had not done any surfing or strenuous exercise. He had a left hip MRI yesterday. A CT scan showed a large disc protrusion at L4/5 with disc extrusion with moderate canal stenosis. Dr Kalra advised the applicant to seek an opinion from a neurosurgeon.
On 6 April 2020. Dr Kalra recorded that Mr Ezzell had been walking with an antalgic gait. The pain had been manageable with analgesic. The MRI of the left hip was discussed. There was left L5 nerve root pain. Dr Kalra recorded “back pain – acute on chronic”. CT guided injection was requested.

Dr Kalra recorded on 21 April 2020 that the applicant had had a cortisone injection with some improvement in pain only. He advised the applicant to seek specialist opinion. The reason for contact was disc prolapse. There is a referral to Dr Stephen Chung of the same date. Dr Kalra noted that the applicant had lower back pain with left leg pain due to nerve impingement. He enclosed the MRI scan report and noted the applicant had had a cortisone injection to the left side with minimal improvement. He had tried NSAID and Lyrica. Dr Kalra recorded a past history of PTSD and anxiety.
On 19 May 2020, Dr Kalra recorded that the applicant had seen Dr Chung on Friday and was advised to see a pain specialist. He was working for a tiler about 18 months ago, for six to eight weeks, doing labouring work. He was supposed to be an apprentice carpenter but was not doing this job then. He was registered with Job Network Australia through Centrelink.
Dr Kalra recorded that the applicant experienced back pain at the time and reported it to the employer, who ignored him. He walked out of the job. He had experienced back pain two days into the work but wore a back brace and continued to work. He was working six to eight hours, five days a week. He did not seek medical attention at the time. He took analgesics. He did not have any pain prior to this job and was still in pain when he left it.
The pain improved six weeks after the applicant left the job. It would flare up from doing household work/gardening, but he did not see Dr Kalra for medical advice. He did not seek any medical attention until November 2019 when “he first saw him” (assumed to mean when he first saw Dr Kalra about his back on 27 November 2019).
Dr Kalra noted that the applicant would go through his solicitor as the employer would not talk to him. The employer had done work for his brother and his mother and had asked Mr Ezzell to work for him as a mature age apprentice but made him do labouring work. He did not work anywhere else after leaving this employer, the name of whom Dr Kalra has accurately recorded. The applicant had had two injections to his back, but the pain persisted.
On 22 May 2020, Dr Kalra recorded that the applicant now wanted to claim on workers’ compensation. They discussed the MRI, review by a pain specialist and Dr Chung’s report. Dr Kalra referred the applicant to Dr Marc Russo, noting that he had lower back pain with left leg pain. His MRI scan showed L4/5 disc protrusion with L5 nerve root compression.
Dr Kalra issued the applicant with a COC. The section requesting “Person’s stated date of injury/accident” is left blank. Dr Kalra noted that the applicant was first seen for this injury in October 2018, which does not appear to be correct, but it is when the applicant claims to have first experienced back pain. He further noted that the applicant was doing labouring work. He strained his back when the puppy got off the leash at the beach in April 2020. The diagnosis was lower back pain – L4/5 disc protrusion with compression of L5 nerve root.
On 11 June 2020, Dr Kalra recorded “workers’ compensation assessment”. The applicant was awaiting approval and would have a private investigation. He had spoken to a solicitor and was seeing Dr Russo next Saturday. Dr Kalra referred the applicant to Dr Marc Coughlan, noting that he had a work-related injury to the lower back, with left leg pain and numbness.

On 22 June 2020, Dr Kalra recorded that the applicant had seen Dr Coughlan and had been advised to have surgery. He had also seen Dr Russo and had commenced doing Valpro. He had not noticed any difference in the pain. He did not have a follow up appointment with Dr Russo but would see him pre- and post-operation.

On 13 July 2020, Dr Kalra recorded that the applicant’s claim had been declined. He had been struggling with anxiety and had spoken to Dr Chand, with whom he had an appointment in August. He “lives at home with mum – supportive”. He had seen Dr Russo, who was arranging a pain psychologist. He would need decompression surgery.

On 27 July 2020, Dr Kalra recorded that the applicant had seen his solicitor and was to see Dr Mark Davis [sic] for an independent opinion. Dr Coughlan had advised on microdiscectomy at L4/5. Dr Kalra noted weakness in the left foot on plantar flexion. The applicant had noticed occasional urinary incontinence. He was awaiting approval for surgery. This is the last entry in the clinical records.

The solicitors for iCare wrote to Dr Kalra on 30 March 2021. They enclosed copies of Mr Ezzell’s statements dated 18 June 2020 and 1 December 2020, and a copy of the letter from his solicitors dated 19 January 2019, in which they requested a review of iCare’s decision to dispute liability. ICare’s solicitors asked Dr Kalra about his recollection of the “skin consultation” on 5 November 2018 (or 2019) and whether Mr Ezzell reported any lumbar spine complaints that were not documented.

Dr Kalra responded by letter dated 28 April 2021. He had gone through the statement [sic] of Mr Ezzell and his solicitors’ letter. He had also gone through his clinical notes from 2018 to the present.

Dr Kalra stated that the applicant first complained of back pain to him on 27 November 2019. Relevant clinical examination, investigations, treatment and referral were provided. During his visit on 5 November 2018 for a skin excision, he did mention his ongoing anxiety, which was documented in the clinical notes.
Dr Kalra concluded that the applicant had been to the surgery many times between 5 November 2018 and 27 November 2019. He had not mentioned his back pain or back injury on any of those presentations. I note there were 12 presentations during this period.

Cape Byron Medical Centre

The applicant first attended the practice on 25 March 2020. Dr Jayatilake recorded “compression L5” and that he had taken cortisone/Endone six months ago. Mr Ezzell was travelling by caravan and had had scans in Newcastle. Dr Yogesh Kalra at Battle [sic: Bateau] Bay Medical Centre was noted.
The applicant had got worse in the last week and “+today/massive pain/making me cry’”. The pain was radiating down the left lower leg to the toes. There was no weakness of the leg.
Dr Jayatilake noted that he had contacted medical surgery (assumed to be Dr Kalra) and confirmed the diagnosis of L4/5 central disc protrusion and L5 root compression. The applicant was under the psychiatric care of Dr Chand for PTSD.
On 31 March 2020, Dr Jayatilake recorded that the applicant had presented to the Emergency Department. He had ongoing back pain radiating to the left groin and left toes and thigh spasms. He was unable to stand to cook and unable to sleep. Dr Jayatilake had discussed possible neurological input.
The only other entries refer to the request by the applicant’s solicitors for the records, and their provision.

Byron Central Hospital

The applicant presented at the hospital on 27 March 2020.
The hospital notes of Dr Suzanne Hughes record that Mr Ezzell presented with left groin pain and decreased sensation of his left shin. There was a background of known L4/L5 disc protrusion. He was visiting from the Central Coast and staying in a caravan. He had been seen by a GP “1/7 for above C/O lyrica and norgesic yesterday”.
The applicant’s original injury was two to three months ago. He had CT/MRI – bulging disc. He did a long walk along the beach three days ago. There was the onset of a numb sensation in the left anterior leg from “knee to toes” in the last four days. There was “PWB” (pain with bending?) and the applicant was feeling weak in the left leg. He complained of numbness/tingling in his left lower foot/toes. There was no loss of control of his bladder or bowels. There was a history of depression.
Dr Hughes recorded that the applicant looked reasonably well on examination. His pain was 10/10. There was mild tenderness around L4/5, radiating out to the left buttock. Her impression was “? spinal nerve impingement.? tear left groin”.
The applicant’s management was to consist of analgesia, ultrasound (of the groin), and CT of the lumbar spine. Dr Hughes discussed pain management with him. His GP was to follow up when he was home and “? MRI if indicated”.

Dr Stephen Chung – Senior Consultant Physician in Rehabilitation Medicine

Dr Chung reported to Dr Kalra on 14 May 2020. He had seen the applicant in his Gosford room.

Dr Chung recorded a history that the applicant had PTSD due to a home invasion seven years ago and was on a disability pension. He had a history of a “cracked back” a few decades ago.
Dr Chung noted that “as you may know”, the applicant suffered a lower back injury 18 months ago when he was doing casual work/apprenticeship in carpentry, involving labouring, mixing concrete, shovelling and lifting heavy tiles. There was no specific incident or trauma described. The applicant described the pain as excruciating in his left lower back, radiating down to his left leg, to his foot and toes, associated with pins and needles and numbness.
The applicant had recently been in Byron Bay and when he walked along the beach, he experienced worsening of the pre-existing pain and felt his left leg give way. He was reviewed and had MRI of the left hip. He had since returned to the Central Coast.
Dr Chung recommended that the applicant be seen by a pain specialist at the Chronic Pain Clinic at Gosford Hospital. The applicant understood and agreed to consider it.

Dr Marc Coughlan – Neurosurgeon

Dr Coughlan reported to Dr Kalra on 19 June 2020.
Dr Coughlan recorded a history that the applicant injured his back in October 2018 when he was doing very heavy work whilst tiling. He noticed a click and felt a lot of pain almost immediately in his back and down his left leg. The pain had got progressively worse, and he was admitted to hospital at the Gold Coast [sic]. He had mild foot drop and a severe antalgic gait, requiring a walking aid. He had signs of significant L5 radiculopathy.
The applicant’s MRI scan showed a very significant ruptured disc at L4/5, eccentric to the left, compressing the left L5 nerve root within the lateral recess.
Dr Coughlan opined that the applicant needed a microdiscectomy. His symptoms were not going to resolve spontaneously, given the longevity of his pain.

Dr Marc Russo – Specialist Pain Management Physician

Dr Russo reported to Dr Kalra on 20 June 2020.
Dr Russo noted that “as you know, this started in October 2018”, when the applicant was working as a labourer, doing shovelling and concreting etc. He had a worsening of leg pain after running on the sand at the beach in April 2020. He had depression and PTSD and was seeing Dr Sandeep Chand at the Gold Coast. His MRI showed significant L4/5 disc protrusion compressing the L4 and L5 nerve roots at this level. Dr Coughlan had recommended spinal decompression.
The applicant’s psychometric test scores showed significant anxiety and depression, consistent with his underlying diagnosis.
Dr Russo opined that the applicant would require cognitive therapy peri-operatively and post-operatively; an oral anti-neuropathic agent; and the MRI showed the need for decompression, which he fully supported. Conservative management would fail.

Dr Michael Davies – Neurosurgeon

Dr Davies was qualified by the applicant and reported first on 14 August 2020.
Dr Davies recorded a history that is consistent with the description of injury in the Application.
The applicant told Dr Davies he initially used heat and Panadol to manage his pain. His mother rubbed Voltaren onto his lower back. It would ease to some extent, but when he tried to do things around the home, like mowing the lawn, the pain would flare up. He saw his GP in January 2019 because of the back pain. He was also getting pain down his left leg at that stage.
Dr Davies recorded that the applicant had some benefit from a cortisone injection but had a flare up of pain when he tried to mow the lawn. A second injection also helped for a time.
Dr Davies reviewed Dr Kalra’s records. He could find no mention of low back pain before 27 November 2019, and he has noted the contents of the entry on that date. He noted that in March 2019 [sic: 2020] the applicant was taking his dog for a walk near Byron Bay. The dog got off the leash and Mr Ezzell had to run after him. He developed pain around his left hip and went to the hospital at Byron Bay. A CT scan showed a large L4/5 disc protrusion.
The applicant told Dr Davies it took him three weeks to drive back to Sydney [sic: the Central Coast] due to ongoing back and leg pain. He saw his GP on his return and was referred to Drs Coughlan and Russo.
The applicant complained of pain in his lower back, around the left hip and down the anterolateral aspect of the left leg. He reported spasms, numbness and pins and needles in the back and leg. The symptoms were worse with using stairs and bending, and the pain was easier if he lay on his back. He denied any previous back problems.
Dr Davies noted that the applicant reported to him the onset of low back pain after he commenced work for the first respondent. It got worse over time and he stopped work on 16 January 2019. He told Dr Davies he was not aware he could lodge a claim when he ceased work.
Dr Davies diagnosed L4/5 disc protrusion causing nerve root impingement. Asked to opine on the relationship between the condition and the injuries sustained at work, he reported that the onset of pain the applicant described after commencing work with the first respondent was consistent with his duties. However, there is no mention in the GP’s file of any low back problem before 27 November 2019, 10 months after the “deemed date of injury”. The first mention of leg symptoms is in April 2020. There is therefore no contemporaneous medical documentation relating to the applicant’s condition, and the first mention of problems was when he attended the hospital in Byron Bay in March 2019 [sic: 2020].
Dr Davies opined that the history provided by Mr Ezzell was consistent with a back injury relating to work, but there was no information to confirm the symptoms developed while working in late 2018. He was unable to make any definitive comment regarding the relationship of the applicant’s condition to the work he was performing. The applicant denied any previous back injuries or problems, and based on the information available, Dr Davies was unable to say whether there had been an aggravation of any pre-existing condition.
As for the issue of “substantial contributing factor”, Dr Davies noted that the applicant was required to undertake physically demanding activities. His difficulty in drawing a direct relationship between Mr Ezzell’s current condition and his alleged work duties was the lack of contemporaneous information confirming the presence of back pain before his attendance at Byron Bay Hospital.

Dr Davies referred to the Discharge Summary recording “known L4/5 disc protrusion”, which suggests the applicant had had imaging before that date. The earliest imaging report referred to x-rays and CT scan on 4 December 2019. Assuming the applicant already had imaging showing a disc protrusion before attending the hospital, it is quite likely that his employment with the first respondent was a substantial contributing factor to his condition.
Dr Davies opined that it was possible that the applicant had some mild pre-existing degenerative change in the lumbar spine before his employment with the first respondent, but there was no way to confirm it. He could not completely exclude the possibility that Mr Ezzell’s activities with Homes2nv may have aggravated some pre-existing changes, but it is equally possible that the duties caused a new injury.
Dr Davies opined that the applicant’s injury had significantly affected his capacity for work. He was not fit to return to his pre-injury capacity and was unlikely ever to be fit to do so. He had been off work since 17 January 2019 because of his pain. Even assuming a good outcome from the surgery, it was likely he would be permanently restricted to modified duties, with a lifting restriction of 10 to 15 kg. This would need to be determined after he recovered from the operation. His prospects of obtaining work on the open labour market had been affected by his ongoing back and leg symptoms. It was unlikely he would ever be fit for heavy manual handling/labouring activities.
Dr Davies agreed that the applicant required the surgery recommended by Dr Coughlan. The two cortisone injections were reasonable and necessary.
Dr Davies again reported on 14 January 2021. He had been provided with reports from Byron Central Hospital and Dr Sheehy, the applicant’s statement (dated 1 December 2020) and several x-ray reports.
Dr Davies noted there had been some confusion about the timeline of events, which had been clarified in Mr Ezzell’s statement of 1 December 2020. Dr Davies had missed the fact that the applicant attended Byron Bay Hospital in 2020 and not 2019. He had noted the findings on the CT scan performed in late March 2020 in his report, but Mr Ezzell told him he had travelled to Byron Bay in 2019. It was clear there was evidence of a significant disc protrusion at L4/5 before the incident in Byron Bay.
Dr Davies opined that the applicant had ongoing back pain that developed during the course of his employment with the first respondent, as detailed in his report of 14 August 2020. That developed as a consequence of the nature and conditions of the work, which was heavy physical work, requiring heavy lifting, carrying and bending.
There was reference in Mr Ezzell’s statement to a specific incident on 16 January 2019, whereas he told Dr Davies his back pain just got worse, and he did not mention any incident. Dr Davies opined that, regardless, the conditions of his employment are consistent with the development of a disc injury due to the repetitive heavy strain on the back.
Dr Davies reported that it is apparent from the applicant’s imaging that there was already a significant disc protrusion at L4/5 before the sudden deterioration of his condition at Byron Bay. The incident at Byron Bay was the precipitating event that led to the development of sciatic pain. Without viewing the films of the scan performed at Byron Bay, it was not possible to say whether the protrusion enlarged at the time of the worsening of the applicant’s condition in Byron Bay. Dr Davies opined that it was certainly possible that the protrusion might have enlarged at that time, resulting in the onset of sciatic pain in addition to longstanding back pain.
Dr Davies was asked to comment on the reports of Dr John Sheehy, who was qualified by the second respondent. His opinion did not differ from that of Dr Sheehy. It is a little unusual that there was no sciatica for over a year following the development of back pain, notwithstanding that imaging shows a significant protrusion at L4/5. However, the applicant is relatively young and may have a fairly capacious spinal canal, which was able to accommodate a significant protrusion without causing significant nerve root compression. The situation changed at the time of the incident in Byron Bay, possibly because of further enlargement of the disc protrusion at that stage. That would not have occurred in the absence of the work-related injury and the original development of the disc protrusion.
Dr Davies’ diagnosis was of a lumbar disc injury and development of a significant disc protrusion at L4/5 as a consequence of the nature and conditions of the applicant’s employment with Homes2nv, with the delayed onset of left sciatica. He agreed with the recommendation that the applicant undergo L4/5 discectomy.
Dr Davies’ last report is dated 25 February 2021.
Dr Davies had reviewed the applicant’s CT scan from 4 December 2019 and the scan from the Byron Central Hospital. It appeared to him that the disc protrusion had enlarged since the first scan. The images did not cause him to alter his opinion. If the applicant had not already had a disc protrusion, it could not have enlarged while he was in Byron Bay, or anywhere else. Dr Davies remained of the opinion that the need for surgery was reasonably necessary as a result of employment.

The first respondent submitted that the situation is that there is animosity between himself and Mr Ezzell and the applicant is trying to blame him for his serious back injury, which has nothing to do with any activity he did under Mr Bucello’s direction and control. The problems came on nearly a year later and are accurately recorded. The second statement is to some extent a fabrication and to the other extent a convenience “to try to explain away all the holes in his account”.
The first respondent finally submitted that the evidence as it exists and as it was recorded at the time does not support the applicant and he would not have made those statements if the true facts were as he now alleges.

Second respondent

The second respondent submitted that both the applicant and Mr Bucello have a vested interest in the outcome of the matter. There are a large number of inconsistencies in the evidence of the applicant, and he bears the onus. The case is being run on the basis of injury by way of aggravation of a disease process or the creation of a disease.
The second respondent submitted that it is well-established that the applicant needs to satisfy me that an event or events occurred that gave rise to the injury and as a consequence, there was a change in pathology in his spine. He then has to establish that employment was the main contributing factor to the development or happening of this injury. The second respondent submitted that he can’t do that.
The second respondent submitted that there are some unexplained circumstances, or at least the applicant’s explanation for the gaps in his evidence is unacceptable. There are also some consistent pieces of medical evidence that create an inconvenience for him. He relies on expert medical evidence but needs to establish that the histories those doctors have connecting his back injury to the events he says caused them is acceptable to me.
The second respondent submitted that I would have to be prepared to accept the applicant’s account that through 2019 he had ongoing problems and pain, which flies in the face of the fact he attended his GP a number of times through 2019, discussing a number of different medical issues, but at no time complained about his back. The second respondent submitted that I would find that very strange. The applicant explained that he is not the sort of person that goes to the doctor readily, but he does. He also said the doctor didn’t ask him and he should have told him more. It is clear from an analysis of the notes that Dr Kalra discussed a number of issues with him through 2019, but not, curiously, his back.
The second respondent submitted that the applicant’s attempt in his second statement to address the inconsistencies in his first statement are somewhat weak, and don’t help to establish a connection between anything that might or might not have happened in late 2018/early 2019 and the pathology that was clearly on display in 2020.
The second respondent referred to two pieces of evidence that it submitted would trouble me. The first is the entry in the GP’s notes on 27 November 2019. This was the first time Dr Kalra became aware of back pain and it was connected to gardening. There is no suggestion at all of work involvement. The second is the entry on 4 December 2019, which records that the applicant “has” x-ray from 2001. The word “has” can only mean that the applicant had available an x-ray from 2001 relating to his thoracic and lumbar spine.
The second respondent submitted that there is an uncomfortable connection between the history taken by Dr Chung about a “cracked back a few decades ago” and the availability of an x-ray from 2001, almost two decades before. This suggests the applicant had back trouble well before.
The second respondent referred also to the records of Byron Central Hospital, which record an original injury two to three months ago. It submitted that fits with the applicant’s attendance on Dr Kalra on 27 November 2019 and the history he obtained at that time. It also submitted that the question often comes up when people attend hospitals as to who’s going to pay? One question that comes up is whether it is a workers’ compensation case. There is no reference to a work injury at the hospital.
The second respondent submitted that, if the applicant had been having issues with his back, he might have said something to his psychiatrist. There is nothing from the psychiatrist that might have assisted his case.
The second respondent referred to the letter dated 6 February 2019 from the applicant and the applicant’s mother to Mr Bucello. It submitted I may be satisfied “there is no love lost” between Ms Banks and Mr Bucello. The applicant says he had the support of his mother, and I may wonder why she said nothing in the letter about the injury. The second respondent also submitted that it would have been simple for the applicant’s representatives to obtain a statement from his mother confirming his complaints.
The second respondent referred to the “road rage” incident. It submitted the applicant has PTSD and that one of the symptoms may be a difficulty in controlling his emotions. He says it didn’t occur. However, we know he got into a heated dispute with a neighbour, which fits with a person who may have had a road rage incident. There is also the evidence that the applicant “stormed off”.
As regards incapacity for work, the second respondent submitted that the first evidence of any back complaint was in November 2019, so that in the period from January 2019 to November 2019 there is no medical evidence to support incapacity. The first medical certificate is dated 22 May 2020. The stated date of injury is left blank. The second respondent submitted that if in fact the doctor thought Mr Ezzell had suffered a work injury, it’s surprising that he didn’t put in the date on which the injury is said to have occurred.
The second respondent finally submitted that there is not enough evidence for me to be satisfied that the applicant suffered the injuries he said he suffered. It did not seek to make any submissions on the issues of “notice” and “claim”.

SUMMARY

I have approached the evidence in this matter from both the applicant and Mr Bucello with caution. Mr Ezzell submitted that I cannot accept both his evidence and that of Mr Bucello. That may be true of some matters in dispute, but they have both made inconsistent, and to an extent self-serving, statements. It is open to me to either accept or reject parts of both witness’s evidence, but the applicant bears the onus.
In the matter of Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43 (Brines), President Judge Keating said [at 78]:
“Where a worker has given untruthful evidence the Arbitrator must carefully assess the rest of his evidence in order to determine its honesty and reliability. Some of the evidence may have been acceptable because other independent or objective evidence confirmed it. However, where a worker’s evidence was not independently supported it clearly must be assessed with great care to determine whether it could properly be accepted as proof of any matter that was in issue in the proceedings (see Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 and Divall v Mifsud (2005) NSWCA 447) …”
I intend to apply the principles in Brines in dealing with the evidence in this matter.
I have reviewed the transcript of Mr Bucello’s submissions in support of his application for adjournment on 17 June 2021. It has been recorded that, in the conciliation phase of the proceedings, Mr Bucello advised that he had statements from witnesses on which he wished to rely. Although part of what he submitted was not able to be transcribed, he said the statements “can be handed in by next week if they like…” He stated that he had obtained telephone advice to get the statements of (not transcribable), who were with him at the time.
Although it has not been recorded, Mr Bucello confirmed that the statements to which he referred were from Mr Grantham and Mr Ford. I made a note that the statements had been obtained and Mr Bucello wished to rely on them. No statement from either witness has been lodged. This reflects adversely on Mr Bucello’s credit.
I will deal with the issues in turn. However, some issues may be shortly dealt with, given the concessions made by the respondents.

Worker

Icare initially disputed liability on the basis, inter alia, that the applicant was not a worker or deemed worker. That dispute was appropriately withdrawn in later notices issued to Mr Ezzell.
While the first respondent raised the issue of “worker” in its Reply, Mr Goodridge conceded that, at least by the end of the relationship between him and the applicant, the law and the evidence would establish that there was an employer/employee relationship. That concession was properly made.
The applicant was a worker, within the meaning of section 4 of the 1998 Act.

Notice and claim

The first respondent did not seek to place in issue that the applicant had not given notice of injury or made a claim within the time limits provided for by sections 254 and 261, respectively, of the 1998 Act.
The second respondent made no submissions on the issues of notice and claim.
The applicant is entitled to proceed with the claim, although the issue of notice is also relevant to the issue of injury.

Injury

As counsel for the second respondent observed, the main issue for determination is whether the applicant has sustained injury arising out of or in the course of his employment with the first respondent.
I accept Mr Bucello’s evidence that the applicant did not report a back injury to him while he was in the first respondent’s employ. He has conceded that the applicant mentioned being tired, which Mr Bucello attributed not having worked for a long time. I accept that the applicant “stormed off” on a hot day while he was working at Springfield, and I will refer to the evidence about this below.
I do not accept the applicant’s evidence about the alleged injury. There are numerous inconsistencies between his statements and between the histories he gave the various doctors he has seen.
Turning to the applicant’s first statement, Mr Ezzell stated that he estimated that he had worked for about 87 hours in total for the first respondent. The email he sent to Mr Bucello on 10 April 2019 asserted that he had worked for 87 hours and requested to be paid for those hours. He told Dr Sheehy he worked approximately 50 to 70 hours (Mr Bucello estimated it as 50 hours, apart from the work at Ms Banks’ home). Dr Kalra recorded a history that he had worked six to eight hours per day, five days per week. Had the applicant actually worked those hours, I would expect him to have asked to be paid for them. It is likely that he worked for no more than 87 hours, and possibly fewer.

Mr Ezzell initially stated that he sustained his work injury in October 2018. He said he began to have pain in his lower back on or about 16 October 2018. He first sought treatment in October or November 2018. His GP did some tests that involved him lying on the ground and lifting his legs. This must be the same GP who is claimed to have ignored his complaints on 5 November 2018, as he has not seen any other.
Mr Ezzell later stated that he first sought medical treatment in 2019. There is no record of him having sought treatment for his back at any time in 2018.
The applicant’s first statement refers to his back having given out on 16 January 2019, when he felt a sharp pain and a click. This was the “final straw” and he sought medical treatment on either that day or the next and was referred for CT scan and cortisone injection. Once again, there is no record of him seeking treatment for his back at any time in January 2019, or indeed at any time before 27 November 2019. There is no report of any CT scan or cortisone injections in or about January 2019. They took place in 2020, at a time when Dr Kalra still had no record of a work injury. He had arranged for investigations and treatment after the applicant reported lower back pain on 27 November 2019.
As for the applicant’s evidence that he felt a sharp pain and click in his back on 16 January 2019, Dr Kalra has recorded no such history, then or at any other time.
The applicant travelled to Queensland in late February 2020, to consult his psychiatrist. On his way back, in March 2020, he sought treatment for his back in Byron Bay.
Dr Jayatilake, Byron Bay GP, recorded no history of any injury, but “compression L5”, and that the applicant’s pain had worsened in the last week.
Dr Hughes at Byron Central Hospital recorded a history that the applicant’s original injury was two to three months before (which is roughly consistent with his attendance on Dr Kalra on 27 November 2019). Dr Hughes noted the onset of numbness in the left anterior leg, from the knee to the toes, in the last four days. I have not drawn any inference from the fact that the hospital notes do not refer to workers’ compensation. I do not know whether the applicant was asked about this, and his evidence is that he did not consider making a claim until May 2020.
Dr Chung recorded that the applicant had a “cracked back” a few decades ago, and “as you [Dr Kalra] know” he suffered a lower back injury about 18 months ago (which would put the date of injury as about November 2018), and there was no specific incident or trauma. The applicant did have an x-ray of his thoraco-lumbar spine in 2001, which has been referred to by Dr Kalra. It showed only minor changes, but its timing is consistent with the history obtained by Dr Chung.

Dr Coughlan recorded that the applicant injured his back in October 2018 when he noticed a click and felt almost immediate pain in his back and down his left leg. Dr Russo recorded that “this started in October 2018”. None of these doctors recorded a history of injury on 16 January 2019, as described by the applicant. The “immediate pain” down his left leg contrasts with Dr Hughes’ history of its onset four days before.
Dr Davies recorded the series of events pleaded in the Application; and that the applicant saw his GP in January 2019 because of back pain. Once again, I note there is no record of any such consultation. Dr Davies has referred to the applicant’s statement evidence about a specific incident on 16 January 2019 and reported that the applicant did not mention such an incident, but said his back pain just got worse. Dr Sheehy was given a history of a “popping” sensation in the applicant’s low back on 16 January 2019 and that radicular symptoms first appeared in late December 2019 or January 2020.

It is of course not unusual for medical practitioners to record histories that do not precisely accord with each other. It is also not unusual for workers to make errors in the dates to which they refer in their evidence, and to amend that evidence after refreshing their memory by reference to clinical records. Memory is, after all, imperfect. However, what I have found unusual in this matter is that there is little consistency in the various histories; and the assertion by the applicant that he takes issue with the evidence of both Dr Kalra and Dr Chung, two treating practitioners.
I draw no inference adverse to the applicant from the alteration in the date he went to Queensland from “2019” to “2020”, as it does appear that his statement has been amended by hand to refer to 2020.
I find the applicant’s explanation for Dr Kalra’s failure to record any work-related injury until 22 May 2020, when he “now wanted to claim on worker’s compensation” unconvincing.

I have referred in some detail to Dr Kalra’s evidence above. His clinical records are far more comprehensive than those of many GPs. They include specific details about the home invasion that caused the applicant’s PSTD; skin checks; discussion about the dangers of smoking; advice on UV protection; the applicant’s altercation with a neighbour; court proceedings; and dental treatment. There does not appear to have been any language barrier due to Dr Kalra being Indian. Dr Kalra noted that the applicant should be recalled for a skin check. Far from being dismissive of the applicant, he appears to be a diligent practitioner.
I refer also to Dr Kalra’s record of the consultation on 19 May 2020, when he has noted that the applicant did not seek medical attention when he experienced back pain at work. The applicant told him he had worn a back brace at work. He had not previously mentioned wearing a back brace at work. He did state that he wore one after ceasing work.
Dr Kalra performed several surgical excisions of the applicant’s skin lesions. On each occasion, he has noted “informed consent obtained” and meticulously recorded the procedure. If the applicant believed he had difficulty communicating with Dr Kalra, it is surprising that he apparently had no issue with undergoing surgery at his hands.
It is also curious that, if the applicant had so little confidence in Dr Kalra, it was to Dr Kalra that he turned for assistance in completing his claim form. As the second respondent has submitted, the COC issued by Dr Kalra on 22 May 2020, which is the first certificate issued, contains no date of injury; and if Dr Kalra thought the applicant had sustained a work injury, it is surprising that he did not include the date of injury.
The applicant also stated that he doesn’t go to the doctor “for any old thing” and only when he is pushed by his mother. That is not borne out by Dr Kalra’s records. They reveal numerous attendances between October/November 2018 (which is when the applicant initially stated he sustained the injury) and 27 November 2019, which is when Dr Kalra first recorded a history of back problems. The applicant was sometimes accompanied by his mother.
On 5 November 2018, when the applicant claims he told Dr Kalra he had hurt his back working, and the doctor said he would require a separate consultation, Dr Kalra recorded details of the applicant’s anxiety and that he had missed his flight to see his psychiatrist. This is not consistent with him being “abrupt”, as stated by the applicant. He didn’t see Dr Kalra record any notes of the discussion about back pain, yet the doctor’s note is quite detailed and refers to anxiety as well as the applicant’s skin condition.
On 27 November 2019, the first mention of lower back pain appears in Dr Kalra’s records. There is no history of any work injury or of the sharp pain and clicking that is claimed to have occurred on 16 January 2019, and Dr Kalra recorded no radiation to the legs. He recorded that the applicant had lower back pain when he was getting up from bed and had been gardening on Saturday. When the applicant complained of persisting pain at his next consultation, Dr Kalra arranged investigations and treatment. This does not suggest a dismissive approach to his complaints.
Dr Kalra recorded on 18 February 2020 that the applicant had not been doing manual work. This suggests he may have queried Mr Ezzell about this. If so, it would have been an opportunity for the applicant to mention his work for the first respondent, the ongoing back pain he had had ever since, and the numerous restrictions on his activities to which he has referred in his evidence.
The applicant “regrets” that he did not reiterate what he claims to have told Dr Kalra earlier when he consulted him about his back on 27 November 2019. He also had ample opportunity to tell Dr Kalra about his work injury between November 2019 and April 2020 when he was being treated for his back condition. There is no evidence that he did so. He first related it to his employment in May 2020.
The applicant is also critical of Dr Chung, with whom he was “unimpressed”. He had an incorrect history of the applicant having a “cracked back” and Mr Ezzell is not sure why he recorded this. It does appear coincidental, then, that the applicant had an investigation of his back in 2001.
I am of course conscious of cases such as Davis and Mason, which advise caution in dealing with clinical records. However, this is a case in which Dr Kalra was provided with the applicant’s evidence and was fairly asked whether he had reported any lumbar spine complaints that were not documented.

Dr Kalra responded unequivocally that the applicant first complained of back pain on 27 November 2019. He noted that he had recorded the applicant’s anxiety on 5 November 2018; and he stated that the applicant had not mentioned back pain or a back injury on any of the many occasions that he attended the surgery between 5 November 2018 and 27 November 2019. There is no reason whatsoever for him to have recorded all the other matters of which the applicant complained and yet failed to record complaints of back pain. I accept that the applicant did not in fact complain of back pain before 27 November 2019, and even then, he did not relate it to his work for the first respondent.
Another aspect of this dispute is the relationship between Mr Bucello and the applicant’s mother. As the second respondent submitted, there is clearly “no love lost” between the two, and yet, in their somewhat acrimonious exchanges, there is no mention of Mr Ezzell’s back injury, allegedly caused by his work for Mr Bucello.

I accept the applicant’s submission that one would not expect Ms Banks to refer to the applicant’s injury in communication about potential court action. However, Mr Bucello referred in a text to Ms Banks to the applicant having had “a moment”, to which she responded that he had used her son and should be careful what he said. It seems curious that, in defending Mr Ezzell, she did not mention that, rather than having “a moment”, he had in fact sustained a work-related injury.
The failure by the applicant’s mother to mention his injury in her exchanges with Mr Bucello is one matter. Alone, it may not carry a great deal of weight. However, this is a matter in which the applicant has been on notice at least since iCare served him with a dispute notice in July 2020 that there is a significant factual dispute about his claim to have sustained injury in the first respondent’s employ.
The notice advised the applicant that there was no contemporaneous medical or factual evidence to support his claim of injury (at that stage recorded as having occurred on 31 October 2018). Dr Kalra’s clinical records were attached to the notice.
Icare issued the applicant with a further notice dated 5 August 2020. The notice pointed out that there was no contemporaneous medical evidence of his injury and the first reference to it being related to employment was on 19 May 2020, over 18 months after the date of injury (still recorded as 31 October 2018).

The applicant sought legal advice in May 2020. He was obviously aware that he needed to address the issues raised by iCare, as he made his second statement to address “medical causation”. The statement makes several references to his mother, with whom he lived. The applicant stated that he told her about his back pain. She gave him some of her medication and rubbed Voltaren into his back. He told her Dr Kalra had not taken his complaints about his back seriously. She pushed him to get the moles on his neck checked, but apparently did not push him to return to Dr Kalra about his back pain.

It would have been a simple matter for the applicant, or those who advised him, to obtain a statement from Ms Banks to confirm his evidence. She is obviously supportive of Mr Ezzell, allowing him to live with her for several years, defending him to Mr Bucello and accompanying him to some of his medical appointments. She was present when he made his first statement, dated 18 June 2020. The absence of evidence from her is unexplained.
Dr Davies, who was qualified by the applicant, initially reported that he could not make any definitive comment regarding the relationship of the applicant’s condition to the work he was performing, and he has explained his reasons.
Dr Davies later opined that the applicant’s back pain developed as a result of the nature and conditions of his employment with the first respondent. He appears to have based this opinion on the fact that the applicant had evidence of a disc protrusion before the incident in Byron Bay. However, the acceptance of his opinion depends on an acceptance of the applicant’s evidence that he did in fact experience symptoms as a result of his employment with the first respondent. I do not accept that evidence. I therefore do not accept that Dr Davies’ opinion arises in a “fair climate: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 (Paric).
Dr Sheehy opined that the mechanism of the applicant’s injury was consistent with the diagnosis, but it was unusual that there was such a long gap between the back injury and the development of sciatica. This is on the background of a history of the applicant feeling a popping sensation in his back on 16 January 2019, one of several different histories provided by the applicant. Dr Sheehy reported that there was no incident away from the workplace and on the balance of probabilities the applicant’s work was the main contributing factor for his back condition. Once again, the acceptance of his opinion depends on an acceptance of the applicant’s evidence, which I do not accept. I therefore do not accept that Dr Sheehy’s opinion arises in a “fair climate”, as discussed in Paric.
Much has been made of the alleged “road rage” incident, which is denied by the applicant and in respect of which the first respondent has failed to adduce the evidence of Mr Grantham and Mr Ford. Mr Grantham is alleged to have been a witness to the incident. While the applicant has denied this incident, he has not disputed Mr Bucello’s evidence that Mr Ezzell threatened him from a motor vehicle in or about December 2020.
I am unable to find that the first “road rage” incident occurred, but I do not believe it is of much import in the determination I am required to make. It is apparent from the exchange of text messages between Mr Bucello and Ms Banks on 17 March 2019 that there had been an incident at what, from other evidence, was the site at Springfield. Mr Bucello referred to two very hot days when the heat got to everyone, but the applicant had had “a moment”. That is consistent with Mr Bucello’s evidence that he “just lost the plot and stormed off”. I have already referred to the fact that the exchange contains no reference to the applicant having sustained an injury.
The above is a summary of the numerous inconsistencies in the applicant’s evidence, for which I have found his explanations unconvincing.

In the matter of Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen), the Court of Appeal (McDougall J; McColl JA and Bell JA agreeing), said (at [48], referring to the decision of the High Court in Malec v JC Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638):
“On analysis, I think, what their Honours said is not inconsistent with the requirement that the tribunal of fact be actually persuaded of the occurrence or existence of the fact before it can be found. On their Honours’ approach, what is required is a determination of the respective probabilities of the event’s having occurred or not occurred. There is nothing in that analysis to suggest that the determination in favour of the probability of occurrence should not require some sense of actual persuasion.”
The Court of Appeal in Nguyen went on to say [at 55]:
“The position may be summarised as follows:

(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 reasonable 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.”
For the reasons above, I do not feel a sense of actual persuasion that the applicant has sustained injury arising out of or in the course of his employment with the first respondent. It is therefore unnecessary that I determine the issues of incapacity for work and entitlement to an award for medical expenses.
There will be an award for each respondent, as set out in the Certificate of Determination.

[2021] NSWPIC 326

2 September 2021