Farkoosh v Commercial Skip Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Farkoosh v Commercial Skip Pty Ltd & Ors [2025] NSWPIC 523
APPLICANT:	Majid Zeighami Farkoosh
FIRST RESPONDENT:	Commercial Skip Pty Ltd
SECOND RESPONDENT:	Workers Compensation Nominal Insurer (iCare)
THIRD RESPONDENT:	Omar Maamari
MEMBER:	Michael Moore
DATE OF DECISION:	1 October 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation and payment of medical expenses; issues of “worker”, injury, and incapacity; Held – applicant was a worker within the meaning of the Act; applicant had suffered injury to low back with consequential condition of adjustment disorder; award for respondent in respect of other alleged injuries; award under section 37 for a closed period claim; general award under section 60.
DETERMINATIONS MADE:	The Personal Injury Commission (Commission) determines: 1. The applicant was employed by the first respondent between mid 2020 and 20 August 2021 and was a worker within the meaning of s 4 of the Workplace Injury Management and Workers Compensation Act 1998. 2. The first respondent was uninsured for workers compensation liability and is deregistered. 3. The applicant suffered an injury in the course of his employment in the nature of the aggravation, acceleration, exacerbation or deterioration of a disease, namely a degenerative condition of the low back, to which the applicant’s employment was the main contributing factor within the meaning of s 4(b)(ii) of the Workers Compensation Act 1987. 4. The deemed date of injury is 20 August 2021 being the date of incapacity. 5. There will be awards for the respondent in respect of the alleged injuries to the applicant’s neck and left and right knees. 6. The applicant suffered a consequential condition, being an adjustment disorder, as a result of his low back injury. 7. The applicant had no current work capacity between 16 June 2022 and 27 March 2023. 8. There will be an award that the second respondent pay the applicant weekly compensation as follows: (a) from 16 June 2022 to 30 September 2022 at the rate of $688 per week pursuant to s 37 of the Workers Compensation Act 1987, and (b) from 1 October 2022 to 27 March 2023 at the rate of $711.20 per week pursuant to s 37 of the Workers Compensation Act 1987. 9. The second respondent is to have credit for any payments of weekly compensation paid in respect of the periods covered by the above awards. 10. There will be an award that the second respondent pay the applicant’s reasonably necessary medical and related treatment expenses in respect of the applicant’s low back injury and consequential condition of an adjustment disorder pursuant to s 60 of the Workers Compensation Act 1987. 11. Each party is to have liberty to apply to the Commission in respect of the form of these orders and awards with any such liberty to be exercised within seven days hereof. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

In this matter the applicant Majid Zeighami Farkoosh seeks an award for payment of weekly compensation benefits and an award for payment of medical and related treatment expenses in respect of incapacity allegedly resulting from injuries received in or arising out of the course of employment with the first respondent.
The applicant alleges that he suffered an injury in the nature of a disease or the aggravation, acceleration, exacerbation or deterioration of a disease as a consequence of the work he performed for the first respondent.
The applicant alleges that those injuries were to the neck, back and both knees.
The applicant pleads a deemed date of injury of 20 August 2021.
The applicant also alleges that he suffered a consequential condition in the nature of an adjustment disorder as a consequence of those claimed injuries to his neck, back and both knees.
The first respondent is a de-registered corporation that was uninsured for workers compensation liability as at the date of the applicant’s alleged injury and employment.
The second respondent is sued as the Workers Compensation Nominal Insurer (Nominal Insurer).
The third respondent Omar Maamari was joined to the proceedings (as outlined below) because at the time of the applicant’s alleged injury Mr Maamari was the director of the first respondent and could find himself personally liable to reimburse the Nominal Insurer for any amounts of workers compensation benefits paid by the Nominal Insurer to the applicant should the applicant succeed in his claim.[1] Accordingly Mr Maamari has a real and substantial interest in the outcome of the litigation.
[1] Workers Compensation Act 1987 ss 145,145A.
The applicant’s evidence is that he commenced working for the first respondent in approximately April 2020 where he was employed as a skip bin truck driver on a full time basis.[2]
[2] Application p.2.
The applicant states that he was working long hours driving and worked from 6.00am to 8.00pm or 9.00pm Monday to Saturday and sometimes on Sundays.[3]
[3] Application p.2.
The applicant alleges that the seat in the truck he was driving was unsuitable and that together with getting in and out of the truck had caused pain in his neck and back.
The alleged onset of pain in the back and neck was in April 2021.[4]
[4] Application p2.
The applicant claims to have reported his problems with the truck seat to Mr Maamari with no result.[5]
[5] Application p3.
The applicant alleges that on 20 August 2021 the applicant was driving to Wollongong to deliver a bin when he stopped after 90 minutes driving because of pain. He further states that the pain was so bad he contacted Mr Maamari to advise that he could not continue anymore because the pain was so bad.[6]
[6] Application p3.
The applicant’s case is that after speaking to Mr Maamari he drove back to the yard and returned home to rest and had not worked for the first respondent since.
The applicant also claims that in addition to the alleged injuries to his back and neck he also developed bilateral knee strains in the course of his employment with the first respondent.
The applicant appears to have made a claim for workers compensation benefits on or about 1 October 2021[7] (albeit that the claim form appears to be dated 10/01/2021 – presumably the author of the document was utilizing American conventions for dating despite the clear statement of the format to be utilized being noted on the claim form).
[7] Application pp30-37.
Provisional liability was accepted by the Nominal Insurer with the applicant being advised of that decision by notice dated 13 October 2021.[8]
[8] Application pp38-43.
Payments of workers compensation benefits appear to have commenced thereafter.
A factual investigation into the circumstances of the applicant’s employment and alleged injury was carried out by Lee Kelly Commercial Investigations on the instructions of the Nominal Insurer.
An independent medical examination of the applicant with Dr Paul Robinson on 3 February 2022 was arranged by the Nominal Insurer.
On 14 June 2022 the Nominal Insurer issued a notice (s 78 notice) under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing the applicant’s entitlement to workers compensation benefits on the basis that the applicant did not sustain an injury arising out of or in the course of the applicant’s employment as required by s 4 of the Workers Compensation Act 1987 (the 1987 Act), that the applicant’s employment was not a substantial contributing factor to the applicant’s injury as required by s 9A of the 1987 Act, that the applicant’s employment was not the main contributing factor to any disease as required by s 4(b)(i) of the 1987 Act, that the applicant’s employment was not the main contributing factor to any aggravation, acceleration, exacerbation or deterioration of a disease as required by s 4(b)(ii) of the 1987 Act, that the applicant did not have total or partial incapacity as required by s 33 of the 1987 Act and that medical treatment was not reasonably necessary as a result of injury as required by s 60 of the 1987 Act.
Liability for payments of weekly compensation was declined with effect from 5 July 2022.
On 25 July 2022 the applicant’s solicitor sought a review of the decision pursuant to s 287A of the 1998 Act attaching medical reports from Dr Calvache-Rubio dated 21 March 2022 and the applicant’s treating psychologist Carl Nielsen dated 17 February 2022.[9]
[9] Application p24.
It appears that the applicant’s solicitor also subsequently forwarded to the Nominal Insurer a copy of a medical report from Dr Eric Lim dated 31 July 2022.
On 8 August 2022 the Nominal Insurer issued a notice under s 287A confirming that the dispute as to liability was maintained.[10]
[10] Application pp25-29.
On 11 March 2025 the applicant commenced the present proceedings in the Personal Injury Commission (Commission) bearing matter number W2727/25 seeking payments of weekly compensation and payment of medical and related treatment expenses nominating Commercial Skip Pty Ltd as the first respondent and the Nominal Insurer as the second respondent.
A reply was filed on behalf of the Nominal Insurer and the matter came before me on
24 April 2025 for a preliminary conference.
At that conference directions were given, inter alia, to the applicant to file an Amended Application to Resolve a Dispute (amended application) adding as the third respondent Omar Maamari and directing service of the amended application and a copy of the direction on or before 8 May 2025 and with the matter being relisted for a further preliminary conference on 26 May 2025 to ascertain the readiness of same.
The amended application was filed by the applicant on 7 May 2025 adding Omar Maamari as a third respondent.
I note for ease of reference that the attachments to the application will be treated as the evidence in the proceedings and footnotes will reference those documents.
At the further preliminary conference held on 26 May 2025 I was advised by the applicant’s solicitor that attempts to serve Mr Maamari with the amended application had resulted in information suggesting that Mr Maamari had left the country and was living in Lebanon.
At the further preliminary conference the matter was listed for a conciliation/arbitration hearing on 14 July 2025, the applicant being directed to make further efforts to serve
Mr Maamari with copies of all pleadings, a copy of the direction and a letter advising of the hearing date.
If Mr Maamari could not be served as required by the order the applicant was directed to file an affidavit setting out what steps were taken to locate Mr Maamari and the outcome of those enquiries.
While the applicant appears to have been unsuccessful in locating and serving Mr Maamari the second respondent also attempted to find and serve him and on 2 July 2025 an investigator Kurt Hippe was able to serve copies of the pleadings and a letter on an adult person at 9 Crown Street Fairfield East New South Wales who stated that he would “ accept them and give them to Omar.”[11]
[11] AAAD p90.
The matter came before me for a conciliation/arbitration hearing on 14 July 2025 where Mr Craig Tanner of counsel appeared on behalf of the applicant instructed by Ms Isabella Barnes of Walker Legal solicitors and Mr Fraser Doak of counsel appeared on behalf of the second respondent instructed by Ms Fung of Hall and Wilcox solicitors.
There was no appearance for Mr Maamari the third respondent at the conciliation/arbitration hearing.
Submissions were made in the matter and the matter was listed for an oral decision on
24 July 2025.
On 17 July 2025 before I could deliver a decision in the matter Mr Zaki Hajjar of Millennium Lawyers filed a notice of representation on behalf of the first respondent.
On the same date the Commission was advised by the solicitors for the second respondent that they had been contacted by Millennium Lawyers who had instructions to act on behalf of the third respondent Mr Maamari and wished to put on evidence and be heard in the matter.
Upon receipt of that notice of representation I issued a further direction vacating the date for the oral decision and listing the matter for a further preliminary conference on 4 August 2025.
On 22 July 2025 Mr Zaki Hajjar of Millennium Lawyers filed a reply on behalf of the first respondent seeking to raise issues of:
(a)    whether the applicant suffered an injury (under ss 4 and 9A of the 1987 Act);
(b)    whether the applicant was a worker or deemed worker (under ss 4 or 5 of the 1998 Act);
(c)    whether the applicant had an entitlement to weekly payments of compensation under Division 2 of Part 3 of the 1987 Act;
(d)    whether the applicant was entitled to medical expenses under Division 3 of Part 3 of the 1987 Act, and
(e)    whether the respondent was liable to make payments of compensation from time to time.
In relation to the matters in dispute in the document I note that it was unclear from same as to exactly what the bases for disputing liability to pay weekly compensation and disputing the applicant’s claim to payment of medical and treatment expenses were – was the first respondent seeking to dispute incapacity as well as “injury” and “worker” in relation to weekly payments and was the first respondent seeking to raise issues of reasonably necessary treatment as well as “injury” and “worker” in relation to the applicant’s claim for payment of medical and related treatment expenses?
The basis of Millennium Lawyers seeking to act on behalf of a deregistered company was also unclear.
The reply filed by Millenium Lawyers on behalf of the first respondent did attach an evidentiary statement from Mr Maamari dated 7 November 2022 (that was already in evidence) but no other documents.
At the further preliminary conference on 4 August 2025 Mr Tanner of counsel appeared on behalf of the applicant, Mr Tim Ainsworth appeared on behalf of the second respondent and Mr Ibrahim Halabi appeared on behalf of the first and third respondents.
In the course of the preliminary conference it was confirmed that the first respondent was deregistered and Mr Halabi of Millenium Lawyers confirmed that he had instructions to act on behalf of the third respondent Mr Maamari.
Directions were made at that preliminary conference that, subject to the third respondent providing a detailed explanation as to why neither an appearance nor a reply had been filed previously, the third respondent was given leave to file a reply limited to the issues that had been previously raised in the reply filed on behalf of the first respondent and attaching the same evidence as attached to that reply with the reply on behalf of the third respondent being filed by 4.00pm on 19 August 2025.
In the preliminary conference on 4 August 2025 it was also clarified that the disputes as to liability for payment of weekly compensation and medical and related treatment expenses were on the basis that the third respondent denied liability on the basis that the applicant was not a worker or deemed worker and/or did not suffer an injury arising out of or in the course of his employment and to which employment was the main or a substantial contributing factor.
At the preliminary conference the third respondent was directed to file and serve written submissions setting out its arguments in relation to the issues of “injury” and “worker” on or before 4.00pm on 19 August 2025. Directions were also made to enable the applicant and second respondent to file written submissions in response to the submissions filed on behalf of the third respondent.
Despite the order that submissions be filed by 19 August 2025 the written submissions on behalf of the third respondent were not filed until 21 August 2025.
On that date a reply was filed on behalf of the third respondent by Millennium Lawyers which rather strangely failed to plead the issues of “worker” and “injury” previously pleaded in the reply filed on behalf of the first respondent but which did attach the submissions on behalf of the third respondent (referred to at paragraph 49 above) raising those issues together with a further copy of the statement of Omar Maamari dated 7 November 2022.
The second respondent declined to file any submissions in response to the submissions of the third respondent.
The applicant’s solicitors filed submissions in response to the third respondent’s submissions on 4 September 2025.
It is fair to note that the conduct of the litigation on behalf of the third respondent has been less than ideal.
The solicitors for the third respondent initially filed a reply on behalf of a deregistered corporation and did not file a reply on behalf of the third respondent until the issues were raised at a preliminary conference.
When a reply was filed by the third respondent it was filed late and did not plead any basis for denial of liability despite the submissions on behalf of the third respondent clearly seeking to raise issues such as “worker” and “injury”.
The submissions by the third respondent were filed late.
However given the significance of the litigation for Mr Maamari as a director of an uninsured, for workers compensation purposes, corporation where Mr Maamari may have a personal liability to reimburse the Nominal Insurer for payments made to the applicant I propose to admit the reply filed on behalf of the third respondent and consider the issues raised in the submissions.
Before proceeding further I note that at the start of the conciliation/arbitration hearing on
14 July 2025 Mr Tanner amended the application to claim weekly compensation under s 37 of the 1987 Act for a closed period only from 16 June 2022 to 27 March 2023.
As noted at paragraph 23 the s 78 notice declined liability for weekly compensation payments with effect from 5 July 2022 so it may be that the true close period for the purposes of the applicant’s claim is from 5 July 2022 to 27 March 2023.

ISSUES FOR DETERMINATION

Having regard to the preceding paragraphs the following issues remain in dispute:
(a)    the second respondent disputes that the applicant suffered any injury received in or arising out of the course of his employment to which the applicant’s employment was the main or a substantial contributing factor (as appropriate);
(b)    the second respondent also disputes that the applicant has suffered any partial or total incapacity for work as a result of any injury received in or arising out of the course of the applicant’s employment;
(c) liability for payment of medical and related treatment expenses under s 60 of the 1987 Act;
(d)    the third respondent also disputes that the applicant suffered any injury received in or arising out of the course of the applicant’s employment to which the employment was the main or substantial contributing factor (as appropriate), and
(e) the third respondent also seeks to raise an issue that was not previously notified in a s 78 notice or s 287A review namely whether the applicant was a worker or deemed worker within the meaning of the legislation.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
I note that counsel’s submissions for the applicant and second respondent at the conciliation/arbitration hearing have been recorded and the submissions on behalf of the third respondent are in written form as are the applicant’s submissions in response to those written submissions.

I have carefully considered both the oral and written submissions on behalf of each party.
Accordingly, I do not propose to provide a detailed summary of same but will refer to the submissions where relevant in these reasons.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents (application);
(b)    The second respondent’s Reply and attached documents (second respondent’s reply).
(c)    The applicant’s amended application adding third respondent filed 7 May 2025;
(d)    applicant’s Application to Lodge Additional Documents dated 4 June 2025 (ALAD1);
(e)    second respondent’s Application to Lodge Additional Documents dated
11 July 2025 (ALAD2);
(f)    third respondent’s reply and attached documents including written submissions filed 21 August 2025 (third respondent’s reply), and
(g)    applicant’s written submissions in response to the submissions of the third respondent (applicant’s written submissions).
In addition to the documents referred to above the applicant’s solicitors lodged two pieces of correspondence on 22 May 2025 relating to service of documents on Mr Maamari and an updated statement of the applicant dated 20 May 2025 which dealt with the applicant’s employment post April 2023.
Given the fact that the claim for weekly compensation was amended by Mr Tanner at the start of his submissions to close with effect on 27 March 2023 the statement is of very limited relevance despite having been admitted into evidence.
Similarly given the appearance on behalf of the third respondent the other pieces of correspondence referred to in paragraph 66 are also of little relevance despite having been admitted at the time of the hearing when they had some significance to the matter.
ALAD1 and ALAD2 were admitted into evidence as being relevant to the issues in dispute and would assist a just and fair determination of the case.

Oral evidence

No oral evidence was given at the conciliation/arbitration hearing and no application for cross examination of the witnesses was made.

FINDINGS AND REASONS

In providing these reasons I have adopted what I consider to be a logical sequence to consider each of the issues in dispute in turn and will consider the issue of worker, then injury (including which parts of the body were or were not injured), then incapacity and then what awards should be made having regard to the evidence.

Was the applicant a worker or deemed worker within the meaning of the legislation

Section 4 of the 1998 Act provides that;
“ ‘worker’ means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing).”
The section goes on to note certain exceptions to the definition that are not relevant in this matter.
As noted earlier the third respondent seeks to put in issue whether the applicant is a worker within the meaning of the s 4 definition referred to above.
As also noted the issue of whether the applicant was or was not a worker within the meaning of the legislation was not raised in any s 78 notice or s 287A review with the first notice of the issue being the ill-considered reply filed on behalf of the deregistered first respondent and then in the submissions filed on behalf of the third respondent (while not being pleaded in the third respondent’s reply).
As Mr Tanner correctly states in the applicant’s written submissions, s 289A(1) of the 1998 Act provides that a dispute cannot be referred to the Commission for determination unless it concerns only matters previously notified as disputed.
There is an exception to the restrictions imposed by s 289A(1) in that s 289A(4) provides:
“Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”
As Mr Tanner has also correctly stated the third respondent has not made an application under s 289A (4) for leave raise a previously unnotified matter but rather raised it in the third respondent’s written submissions attached to the third respondent’s reply.
Further those submissions do not in my view address the issues or considerations referred to in the decision of Roche DP in Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services.[12]
[12] [2007] NSWWCCPD 227.
But for the fact that serious financial consequences may follow for the third respondent on a personal level from the result of these proceedings I would not be inclined to grant leave to raise the issue but given the severity of the potential consequences for Mr Maamari and in the interests of justice I am prepared to grant leave to the third respondent to raise the issue and will consider same.
I note that the second respondent does not dispute that the applicant was a worker within the meaning of the legislation.
In terms of the evidence on the issue of whether the applicant is a worker the applicant relies upon his statement evidence dated 12 October 2021 but signed on 15 December 2021,[13] his supplementary statement dated 28 November 2022,[14] and his further supplementary statement dated 3 March 2025 and attached copy “timesheet”.
[13] Application pp1-5.
[14] Application p13.
All of the applicant's statement evidence is consistent with him claiming to have commenced work with the first respondent in around April 2020 and his duties being to drive a truck to deliver bins to different parts of Sydney. He apparently worked regular hours commencing at 6.00am but at times worked up to 8.00 or 9.00pm. He was happy to work as many hours as possible and was paid on an hourly basis.
The applicant’s statement evidence is that he spoke to “the supervisor” about his pain on
[15] Application p2.
20 August 2021.[15]
The applicant’s statement of 3 March 2025 outlines that he was required do around 12 jobs a day to and from each client’s premises and other “cites” [sic].[16]
[16] Application p15.
The third respondent’s statement dated 7 November 2022[17] confirms that the first respondent’s business operated five skip bin trucks and that the first respondent engaged drivers to operate such trucks. The third respondent stated in that statement that the “company engaged Majid Farkoosh as a skip bin truck driver”.[18]
[17] Application pp6-7.
[18] Application p6.
Implicit in the statement of Mr Maamari appears to be an acknowledgement that the applicant and the other drivers were all paid on an hourly basis as the applicant is stated by Mr Maamari to have become upset when the number of hours were reduced.
Mr Maamari also stated that he “tried to distribute the work evenly” between his drivers.[19]
[19] Application p6.
The evidence summarised in paragraphs 83-89 is consistent with the applicant having been employed as a skip bin truck driver who served his employer’s business rather than was carrying on a trade or business of his own.[20]
[20] Per Windeyer J in Marshall v Whittaker’s Building Supply Co [1963] HCA 26.
In his submissions on behalf of the third respondent Mr Hajjar argued that as;
·        the applicant was not paid by salary or wages and was paid per job;
·        the applicant was working on an Australian Business Number;
·        the applicant was free to work for or with anybody else;
·        the applicant bore financial risk and provided his own labour without integration into the respondent’s business structure;
·        there was no induction, uniform or direct control consistent with an employment relationship, and
·        the applicant was not a worker under the legislation.
There are a number of problems with those submissions.
The first is that, as noted by Mr Tanner in the applicant’s written submissions, there is no evidence in support of most of those assertions. Indeed the evidence in the matter is for the most part to the contrary of those assertions.
Mr Maamari’s own statement refers to the applicant being paid on an hourly basis and would work up to 12 hours a day.[21] There is no reference in that statement to the applicant being paid per job as asserted in Mr Hajjar’s submissions.
[21] Application p6.
Further Mr Maamari’s statement states that the applicant was engaged as a skip bin truck driver who always drove the same truck. Mr Maamari also stated that the company had five skip bin trucks and “it engaged drivers to operate such trucks”.[22]
[22] Application p6.
The applicant’s statement dated 12 October 2021 (but apparently signed on 15 December 2021) refers to having been employed by Commercial Skip Pty Ltd on a full time basis working from 6.00am up to 8.00 or 9.00pm until hours were reduced during the COVID-19 pandemic.[23]
[23] Application p2.
Attached to the applicant’s statement dated 3 March 2025 is a screen shot of what the applicant describes as his time sheet for the period 16 August 2021 to 20 August 2021[24] which is consistent with the applicant being paid on an hourly basis rather than on the basis of a per job amount.
[24] Application p17.
It is patently clear from both the applicant and Mr Maamari’s statement evidence that the applicant was keen to work as many hours as possible and that the applicant was upset when his hours were reduced. That evidence clearly supports a finding that the applicant was paid on an hourly basis not on a per job basis.
Despite the assertion in the submissions that the applicant had an Australian Business Number there is no evidence in support of the assertion in the submissions other than an assertion made in an email by Mr Hajjar on behalf of the first respondent[25] with no other evidence to corroborate the assertion – not even details of the alleged number.
[25] Application p44.
The assertion that the applicant was free to work for or with any other person is possibly notionally correct however the applicant apparently was expected to work the hours as required by Mr Maamari and the first respondent and further appears to have worked long hours on a full time basis for the first respondent. There is no evidence of the applicant operating a business tendering for work and deciding what jobs he was prepared to undertake.
The suggestion that the applicant bore financial risk over and above that borne by any employee of a business of non-payment of wages or redundancy or dismissal is quite frankly risible.
The first respondent and its shareholders and guarantors would have faced financial risk in owning and operating five trucks, related capital equipment, leases of premises, employee entitlements and the like – that is the sort of financial risk that is relevant to determination of whether a person is a worker within the meaning of the legislation, not the risks of employment referred to in paragraph 101.
Similarly, to suggest that the applicant was not integrated into the respondent’s business structure is also quite frankly absurd. The evidence of the applicant’s work duties is that he was “engaged” (Mr Maamari’s word) to drive a skip bin truck owned by the first respondent, he was required to go to pick up and move skip bins from sites identified as clients of the first respondent and deliver them as directed by the first respondent via its servants or agents, and those tasks were done on a full time basis by the applicant up to 12 hours a day (on Mr Maamari’s evidence). It is difficult to imagine how the applicant could not be more fully integrated into the business of the first respondent.
The applicant agrees that there was no induction at the time he commenced working for the first respondent but states that was because he was already an experienced skip bin truck driver and Mr Maamari’s evidence is that he was aware that the applicant was an experienced driver. In the circumstances the failure to have a formal induction of the applicant appears to be of little significance.
In relation to the assertion that the applicant was not provided a uniform I note that there is not evidence as to whether a uniform was or was not provided to the applicant. Accordingly the basis of the submission is not established.
In terms of control there is clear evidence in the applicant’s own statements that he carried out his work as directed by the third respondent Mr Maamari. That statement evidence is not contradicted or traversed by Mr Maamari in his statement and indeed Mr Maamari’s statement confirms that he engaged the applicant and distributed the work to him.
There is no evidentiary basis to assert that there was not direct control of the applicant’s work activities.
The second respondent did not assert that the applicant was not a worker within the meaning of the legislation as part of its denial of liability. That decision was well founded and consistent with the evidence, the legislation and case law.
I find on the balance of probabilities on the evidence before me that the applicant was employed by the first respondent was a worker within the meaning of the workers compensation legislation in particular within the meaning of s 4 of the 1998 Act.

Did the applicant suffer an injury in or arising out of the course of his employment and if so what was the nature of the injury and what part of parts of the body were injured?

The applicant alleges that he suffered injury to his neck, back, and both knees in the course of his employment and has also suffered a consequential condition of an adjustment disorder.
Mr Tanner made clear that the applicant’s allegation of injury was based upon s 4(b)(ii) of the 1987 Act being an aggravation, acceleration, exacerbation or deterioration (hereinafter in this descision the term “aggravation,” where appearing, will be intended to encompass aggravation, acceleration, exacerbation and deterioration) of a disease in the applicant’s neck, back and knees.
Essentially Mr Tanner’s submissions were to the effect that the work done by the applicant for the first respondent, including in particular driving a truck with an unsuitable seat, had aggravated degenerative disease processes in the neck, back and knees and that the applicant’s employment with the first respondent was the main contributing factor to the aggravation.
Mr Doak on behalf of the second respondent essentially submitted that there was no injury to the applicant as claimed and that the allegation of injury only arose after the applicant’s employment with the first respondent had come to an end after a dispute between
Mr Maamari and the applicant as to the availability of work. (Those submissions are also relevant to the issue of incapacity).

Medical evidence – Injury issue

In terms of medical evidence the applicant relies upon the qualified medical opinion of
Dr Peter Khong, neurosurgeon in his report dated 26 July 2022 and his supplementary report dated 18 November 2022.
In his report dated 26 July 2022 Dr Khong recorded a history from the applicant in the following terms:
“Mr Farkoosh was previously working as a truck driver. He had been doing this for approximately 3 years. His work involved delivering skip bins. He occasionally had to level overflowing rubbish in the bins but most of his work entailed driving. His reported injury date was 20/8/21. 2 months prior to this he started to experience neck pain and lower back pain. On 20/8/21 he decided to take some time off so his pain would improve, but his pain worsened. He has not returned to work since. He also noticed left sided knee pain, likely related to getting in and out of his truck repetitively.”[26]
[26] Application p79.
Dr Khong diagnosed the applicant as follows:
“The diagnosis is neck and lower back pain due to a combination of musculoligamentous strain and some exacerbation of pre-existing degenerative changes in the cervical and lumbar spine. There is no neural compression to account for his left arm and left leg pain.”[27]
[27] Application p80.
In his supplementary report dated 18 November 2022 Dr Khong confirmed that he had reviewed the medical notes of Dr Rohan Fernando and Dr Khaled Osman and confirmed his earlier diagnosis.[28]
[28] Application p82.
In terms of reports from treating doctors the first medical report in time relied upon by the applicant is a report of Dr Eric Lim dated 24 September 2021.
Dr Lim’s report records having first seen the applicant on 24 September 2021 (being the date of the medical report) where the history of injury was of neck, back and knee injuries due to prolonged sitting and repetitive climbing in and out of a truck at work.[29]
[29] Application p50.
Dr Lim also recorded that the applicant,
“stopped working on 20/08/2021 at 10.00am as he was no longer able to cope with the pain. He went to his GP on 27/08/2021.”[30]
[30] Application p50.
Dr Lim expressed the following opinion concerning diagnosis and causation,
“He sustained back and knee injuries due to the nature of his work. Work was the main contributing factor for their [sic] injury.”[31]
[31] Application p51.
The second treating doctor’s report is from Dr Calvache Rubio and is dated 8 October 2021.
Dr Calvache Rubio is part of the same practice as Dr Lim and the report by Dr Calvache Rubio is in almost identical terms as the report of Dr Lim of 24 September 2021 both in terms of history and in terms of diagnosis.[32]
[32] Application pp52-53.
The next treating doctors report in time is a report of Dr Bhisham Singh dated 21 October 2021 and is addressed to Dr Lim following a referral.
Dr Singh recorded a very short form history of injury in the following terms,
“He is a truck driver and going up and down into the cabin of his truck has given him knee pain and lower back pain.”[33]
[33] Application p54.
Dr Singh expressed the view that there was no significant disc bulging or foraminal or central stenosis present and no clear surgical targets.[34]
[34] Application p54.
The next treating medical report in time is a report from Mr Carl Nielsen psychologist dated 17 February 2022 which appears to be a report addressed to the applicant’s treating general practitioner.
Mr Nielsen records a history as follows,
“Mr Farkoosh reported having commenced working for Commercial Skip for approximately one (1) year in the position of truck driver on a full time basis. Mr Farkoosh reported that he began to experience significant amounts of lower back pain in approximately June 2020 as a result of climbing in and out of truck as well as prolonged periods of sitting in trucks and he visited his GP who prescribed some painkillers and referred him for physiotherapy. Mr Farkoosh continued working on normal duties until 27 August 2021 when he was no longer able to cope with the pain and noted he also experienced pain in his neck and bilateral knees with the left being worse than his right.”[35]
[35] Application p57.
I note that the history recorded by Mr Nielsen differs somewhat from the history recorded by Dr Lim and Dr Singh in relation to the time of onset of pain in the back and the date the applicant ceased work.
Mr Nielsen recorded the following history in respect of the onset of psychological problems,
“As a result his work related injury as well as of the aforementioned functional incapacities, Mr Farkoosh noted a deterioration in his mental state characterised by low mood, depressive and anxious cognitions, low motivation, avoidance, sleep disturbance, irritability, poor concentration and memory”[36]
[36] Application p57.
Mr Nielsen diagnosed the applicant as having an adjustment disorder with depressed and anxious mood as a result of his work related injury.[37]
[37] Application pp57-58.
The applicant also relies upon a SIRA form Allied Health Recovery Request which appears to have been prepared by a Yulia Vystavkina on or about 24 February 2022.
While the report was directed towards treatment of his psychological symptoms it did record a history of injury in what appears to be identical terms as noted by Mr Nielsen.[38]
[38] Application p60.

I do not think that report is particularly helpful.
Dr Calvache Rubio provided a further medical report dated 21 March 2022 which repeated exactly the earlier history of injury (presumably on a cut and paste basis) and confirmed a diagnosis of back and knee injuries due to the nature of the applicant’s work to which work was the main contributing factor. Dr Calvache Rubio also expressed the view that,
“As a result of chronic pain and functional restrictions he has developed an adjustment disorder.”[39]
[39] Application p65.
Dr Calvache Rubio also stated in that report that the applicant was unfit for work.
On 31 July 2022 Dr Lim provided a further medical report, which also repeated the earlier history of injury in exactly the same terms, provided a diagnosis that the applicant had suffered back and knee injuries due to the nature of his work to which work was the main contributing factor, that the applicant had also developed an adjustment disorder as a result of the injuries to the back and knees and that the applicant was unfit for work.[40]
[40] Application pp67-68.
Finally in terms of medical reports the applicant relies upon a further report from Mr Neilsen dated 23 August 2022.
In that report Mr Neilsen confirmed his diagnosis of an adjustment disorder with depressed and anxious mood and stated that the applicant continued to be unfit to return to work.
For unknown reasons the applicant appears to have attended and continued to attend a range of general practitioners at different medical practices.
The notes of the medical practices of Workers Doctors, Family Medical Centre Auburn, Hall Street Medical Centre, NewHealth Medical Centre, NAS Medical Centre, Northmead Medical Centre and Epping Plaza Medical Centre are in evidence forming part of the attachments to the application.[41]
[41] Application pp116-151 and pp 181-244.
Also forming part of the attachments to the application are the notes of Joshua Robillard physiotherapist.
Of relevance to the issue of injury in those various medical records are a number of attendances both before and after injury.
The notes of Workers Doctors commence 24 September 2021 and do not add anything further in terms of history at the time of the initial consultations with Drs Lim and Calvache Rubio however there is a note of an attendance on a Dr Gavin Soo on 11 October 2021 when the applicant consulted Dr Soo about bilateral knee pain.
Dr Soo’s notes of the consultation relevantly state,
“He is a 35yo man who sees me today with ongoing bilateral knee pain as a result of an injury sustained at work. Majid was working as a truck driver at the time of his injury. Over the last 2 years he tells me that he experienced pain to the left knee. He says he once fell from the truck but did not report it. He feels that constantly going up and down from the truck has caused his pain. He then started to notice pain to the right knee about 5 months ago.”[42]
[42] Application p133.
Dr Soo recorded that he reviewed MRI findings on both knees taken on 10 September 2021 and then stated,
“I have had a long discussion with him about the findings on MRI. There are no abnormalities that need any surgical intervention.”[43]
[43] Application p134.
The notes of Family Medical Centre Auburn record the first attendance by the applicant at the practice which occurred on 9 June 2020 as involving treatment for neck and low back pain with it being noted that the applicant was waiting to see a neurosurgeon.[44]
[44] Application p143.
It appears that the next time the applicant attended that practice was on 17 June 2021 when no mention was recorded of the applicant complaining of neck, back or knee problems – rather the applicant was treated for a rash.[45]
[45] Application p142.
The notes then record the applicant being treated for low back pain with radiation into the right buttock on 13 September 2021 (after the applicant had ceased work with the first respondent) with an MRI being noted as having shown a small disc protrusion.[46]
[46] Application p142.
The applicant was again treated for low back pain problems at the practice on 20 and
[47] Application pp141-142.
21 September 2021.[47]
There is no mention in the attendances on those dates to treatment for neck or knee problems.
The applicant while attending the practice on three subsequent occasions between
[48] Application p141.
4 November 2021 and 4 June 2023 does not appear to have been treated at all for neck, back or knee problems on those occasions.[48]
The notes of Hall Street Medical Centre show a first attendance on 31 August 2021 with the applicant complaining of chronic back pain flaring up in the last two months and radiating to the right leg.[49] The notes of that attendance also record that the applicant has “no physical job no heavy lifting”.[50]
[49] Application p182.
[50] Application p182.
The next attendance at the practice occurred on 3 September 2021 with the applicant complaining of bilateral knee pain of three to four month duration. There is no mention in the notes of back or neck pain at the time of the consultation on that date.[51]
[51] Application pp183-184.
The notes also refer to what are described as Third Party consultation on 7/9/ September 2021, 8 September 2021, 10 September 2021, 13 September 2021, 13 September 2021,
15 September 2021, 22 September 2021, 27 September 2021, 29 September 2021,
1 October 2021, 3 October 2021, and 3 June 2022 however I am unable to work out what if any relevance any one or more of those attendances have to this claim.
The notes of NewHealth Medical Centre record a number of relevant attendances.
The records indicate that the applicant first attended the centre on 1 June 2020 complaining of generalised spinal pain with neck pain, thoracic pain and low back pain and requesting a spinal MRI.[52]
[52] Application p187.
The applicant was apparently seen again at the NewHealth Medical Centre on 6 June 2020 where the applicant was continuing to complain of neck, thoracic and back pain stating that standing more than five minutes caused pain.[53]
[53] Application p187.
The notes of that consultation record the results of the MRI being discussed and the applicant being advised to take regular exercise and see an exercise physiologist.
The records of NAS Advanced Medical Centre deal with treatment of the applicant for right ear pain in 2015 and for an unspecified issue in 2023. They do not assist in this matter.
The records of Northmead Medical Centre commence with a history of an attendance on
[54] Application p204.
13 November 2021 with the applicant apparently giving a history of lower back pain for seven months with radiation of symptoms into the right leg and toe. The notes refer to an MRI showing a disc herniation although it is unclear whether that was what the applicant told the doctor or whether the doctor had access to an MRI and report.[54]
On the basis of the history given on that occasion the applicant’s back symptoms commenced in around April 2021.
There is no mention in the notes of that attendance on 13 November 2021 of any complaint of neck or knee problems.
The applicant next attended the practice on 20 November 2021 when the presenting problem is described as “still feeling pain on the lower back area”[55] again with no mention of neck or knee problems.
[55] Application p204.
The applicant is recorded as attending the practice again on 18 December 2021 and
[56] Application p205.
20 January 2022 with complaints of ongoing low back pain again with no mention of neck or knee problems.[56]
On 21 February 2022 the applicant attended the practice with complaints of neck pain for five months, left knee pain for nine months “wrose [sic] recently”[57] together with complaints of ongoing lower back pain.[58]
[57] Application p205.
[58] Application p205.
I note that while one must not over read the absence of a record of a complaint of symptoms in general practitioners’ notes[59] I do find it significant that Dr Wenxiong He (the practitioner at the Northmead Medical Centre who had been treating the applicant at the time of his attendances) does record complaints of low back pain when the presenting problems was neck and left leg pain. I am of the view that it is unlikely that the doctor would have failed to record complaints of neck and knee problems at the time of the earlier attendances if such complaints had been made by the applicant. This view is reinforced by a review and consideration of the record of subsequent attendances as set out in the following paragraphs.
[59] Per Basten JA in Mason v Demasi [2009] NSWCA 227.
I also note that records of the attendance on 21 February 2022 also show that the applicant gave a date of onset of neck pain consistent with an onset of symptoms in around October 2021.
The applicant next attended the practice on 6 May 2022 with the records showing complaints of ongoing pain in the neck and back area and left calf area tingling and numbness.[60] I note the records also refer to a skin tag problem which is consistent with my view that the doctor kept a full record of complaints at the time of attendances.
[60] Application p206.
On 12 May 2022 the applicant again attended the practice with what appears to be symptoms of gout with “on and off big toe pain” being recorded in bold type but with the notes also recording “still feeling back pain”.[61]
[61] Application p206.
There is no record of complaints of neck or knee pain at the time of the attendance on
12 May 2022. The treatment on that date appears to be directed to treatment of the gout problem so again it seems consistent with other entries that if the applicant had mentioned neck and knee problems at the time of the attendance those complaints would have been recorded in the same way as the complaint of feeling back pain was.
Some months elapse until the next entry in the notes of Northmead Medical Centre on
[62] Application p206.
31 October 2022 when the applicant attended complaining of pain in the neck and back with radiation into the left buttock area.[62] While recording a detailed examination including visual acuity checks and noting treatment for a left ear skin tag as well as the neck and back issues there is no mention of knee problems in the notes of the attendance.
The applicant again attended the practice on 12 December 2022 complaining of ongoing low back pain. On that occasion the notes record the applicant being treated for back pain, immunisation therapy and skin tags. There is no mention of neck or knee problems.[63]
[63] Application p207.
On 1 February 2023 the applicant attended for what involved an STI check. Although the presenting problem was clearly unrelated the notes also record complaints of ongoing tenderness in the back with reduced range of movement and treatment for more skin tag problems.[64] There is no record of neck or knee complaints on that occasion.
[64] Application pp207-208.
The notes next record an attendance by the applicant on 23 February 2023 with ongoing complaints of urinary discomfort and treatment together with immunisation for hepatitis B. There is no record of any complaints of low back pain or neck and knee pain at the time of that attendance.[65]
[65] Application p208.
The notes record a consultation with a Ms Ying Sun on 24 February 2023 however other than noting a query about adverse drug reactions and alcohol and smoking histories being updated nothing further is recorded.[66]
[66] Application p208.
The next attendance at the practice is recorded as occurring on 9 March 2023 when the reasons for the visit are recorded as being obesity, fatty liver and skin tags. There is no mention in the notes of that attendance of any complaint of back, neck or knee problems.[67]
[67] Application pp208-209.
The last attendance recorded in the notes of Northmead Medical Centre is dated
[68] Application p209.
23 March 2023 when the applicant was treated for immunisation and skin tag issues but where the notes also record “still having low back pain”. [68] There is no mention in the record of the attendance of neck or knee pain or problems.
The notes of Epping Plaza Medical and Dental Centre record the applicant as having been treated on 24 July 2014 for low back pain and a pigmentation problem on the face.[69]
[69] Application p236.
The notes of that practice show a further attendance on 25 July 2014 for sinusitis with no mention of back pain.
On 12 November 2014 the applicant was treated at the practice for a hurt right hand following a fall from a ladder.[70]
[70] Application p235.
The last entry in the notes of that practice is of a further attendance for treatment of low back pain and a skin tag on 10 December 2014.[71]
[71] Application p235.
Accordingly the applicant attended the practice twice in six months in 2014 for treatment of low back pain.
The notes of the physiotherapist Joshua Robillard which appear at pages 152 to 180 of the application are somewhat difficult to follow however it appears that what those notes disclose is treatment for low back pain commencing on 30 September 2021 with the first record of neck pain appearing on a record of treatment on 11 October 2021 which I note is consistent with the history of onset of neck problems recorded in the Northmead Medical Centre notes of Dr Wenxiong.
The notes of Mr Robillard also seem to show that by far the majority of the treatment given by him was directed towards treatment of low back problems with treatment continuing up to 11 July 2022.
The respondent relies upon the qualified medical opinion of Dr Paul Robinson as set out in his medical report dated 9 February 2022.
Dr Robinson noted that he had difficulty obtaining a history even with the assistance of an interpreter but relevantly recorded the following history,
“He stated that he had experience in this and thus did not require any training or induction.
He worked for over 12 hours per day, depending on work availability.
He states he developed pain in the lower back and reported such on 20 August 2021. He stated that the pain had been present for several months prior to this. It was not related to an injury, trauma or fall. He states it was present mainly in the right lower back but also the left. Pain radiated down past the left thigh and into the knee region and he complained of associated numbness not only in the left thigh but the right as well. There has never been numbness passing into his feet and particularly his toes.
He states he did not see his local practitioner but treated himself although the reported date of injury from the eventual GP he visited was 20/08/2021.
He believes that the problems related to the seat he was sitting on in the truck and also the continual getting in and out of the vehicle was the cause of his pain.”[72]
[72] Application p73.
Dr Robinson provided the following diagnosis,
“The diagnosis is not one of an injury but of a development of gradual onset with back pain and also knee problems”[73]
[73] Application p76.
I must confess to having some difficulty understanding that statement.
Finally in relation to the medical evidence I note the content of the MRI report of Dr John O’Rouke dated 3 September 2021[74] of the applicant’s lumbar spine, the X-ray report of
Dr James Black dated 3 September 2021[75] concerning the applicant’s knees and the MRI report of the applicant’s knees dated 10 September 2021 from Medscan.[76]

Statement evidence – Injury issue

[74] Application p47.

[75] Application p48.

[76] Application p49.

The statement evidence in relation to the issue of injury commences with the applicant’s statement apparently signed on 15 December 2021 but dated 12 October 2021[77] (I assume it was prepared in October 2021 but not actually signed by the applicant until December 2021).
[77] Application pp1-5.
In that statement the applicant states that he worked long hours on the road (up to 12 hours without a break) in an unsuitable chair and noticed an onset of pain in his back, neck and knee in April 2021 with the back pain being worst.
The applicant in that statement suggests (albeit as an unqualified lay witness) that his symptoms were caused by the unsuitable chair putting pressure on his back and constantly getting in and out of the truck caused pain in his back and neck.[78]
[78] Application p2.
The applicant further stated that on 20 August 2021 he started work at 6.00am and delivered a bin to Wollongong and 90 minutes later decided to have a rest because of his pain. He then contacted his supervisor (apparently Mr Maamari the third respondent) and told him that he was unable to continue at work and he drove to the yard of the first respondent and went home to rest.[79]
[79] Application pp2-3.
The applicant also stated that he had not returned to work as at the date of his statement.
In that statement the applicant also claims that he had complained to Mr Maamari about the difficulties he was having with the seat and had requested a new seat at the time he started experiencing pain[80] and also claims to have taken time off work before August 2021 because of his back pain.[81]
[80] Application p3.
[81] Application p3.
In the statement the applicant also asserts that,
“Prior to this accident, I have never experienced any similar injury.”[82]
[82] Application p4.
Having regard to the medical history of the applicant that statement does not appear to be correct.
Mr Maamari, the third respondent, has provided a statement dated 7 November 2022 where he relevantly records that in the middle of 2021 the workload available to drivers engaged by the first respondent was reduced due to the effects of the COVID-19 epidemic and related lock-downs.[83]
[83] Application p6.
Mr Maamari went on to state that the applicant was upset by the reduction in his hours of work and attached to his statement copies of screen shots illustrating the applicant’s unhappiness with the reduction in work hours and his request for more work in August 2021[84] including an exchange that would be consistent with the applicant not working on
[84] Application pp6-12.
[85] Application p11.
20 August 2021 but being available to work on 24 August 2021.[85]
In his statement Mr Maamari also denied that the applicant had ever complained of any back injury to him when the applicant was working for the first respondent, that the applicant never complained about problems with the seat or chair in the truck being driven by the applicant, and did not work on the alleged day of injury of 20 August 2021.[86]
[86] Application pp6-7.
Mr Maamari also states that the seat in the truck operated by the applicant was a “comfortable drivers seat”.[87]
[87] Application p6.
In response to the statement of Mr Maamari the applicant provided a supplementary statement dated 28 November 2022 wherein he confirmed that he always tried to work as many hours as possible because of financial and family commitments and that he did make complaints about both his injury and the seat in the truck despite Mr Maamari’s statement to the contrary.[88]
[88] Application p13.
A further supplementary statement was made by, and [BG1] relied upon by the applicant is dated
3 March 2025.
In the statement dated 3 March 2025 the applicant again stated that driving the truck supplied by the first respondent caused him back pain.[89]
[89] Application p14.
The applicant states that the back discomfort started shortly after he commenced driving for the first respondent but that he was able to continue to work despite his pain for a time.[90]
[90] Application p14.
The applicant also asserts that he did work on 20 August 2021 despite Mr Maamari’s assertions to the contrary and refers to what he describes as a “timesheet” attached to the statement which the applicant asserts confirms that he worked on that day.[91]
[91] Application p15; Application p17.
I must confess to having some concerns with the accuracy of that assertion given the reproduced text message exchange between the applicant and Mr Maamari attached to
[92] Application p11.
Mr Maamari’s statement dated 28 November 2022 which seems to include a message from the applicant to Mr Maamari on 19 August 2021 where the applicant advises that he won’t be working the following day.[92]

Further the “timesheet”[93] attached to the applicant’s statement dated 3 March 2025 actually looks like another screen shot from a phone with no indication of the provenance or accuracy of what is depicted thereon.
[93] Application p17.
I note however that the contents of the applicant’s statement of 3 March 2025 have not been contradicted or traversed by Mr Maamari in any further statement despite the fact that he has been joined as a party and has been represented in the proceedings.
I note further that the “timesheet” entry for 20 August 2021 is consistent with the applicant’s earlier statement as to events on that day as the “timesheet” shows the applicant ceasing work at 11.01am.[94]
[94] Application p17.
Accordingly despite my concerns I am of the view that the weight of the evidence is in favour of a finding that the applicant did actually work on 20 August 2021.
The applicant further states in the statement of 3 March 2025 that when working for the first respondent he would have to sit for very long hours working up to 15 hours a day and would drive 500km in a shift. That would involve him doing around 12 jobs a day. The applicant states that he would have to get out and back in at each stop to deal with overloaded bins, securing of bins and covering of same.[95]
[95] Application p15.
The applicant also continued to deny similar injuries prior to the once he allegedly sustained at work with the first respondent.[96]

Consideration and findings – Injury issue

[96] Application p15.

I have reviewed all the evidence and have carefully considered the oral and written submissions of counsel.
Dealing firstly with the medical evidence in relation to the alleged injury to the applicant’s low back it is my view that on the balance of probabilities the applicant had a pre-existing back problem that was not insignificant.
The applicant saw a doctor for back pain at least as early as July 2014 with further treatment at the same practice in December 2014 for back pain.[97]
[97] Application pp235-236.
Further the applicant was seen for back pain at the New Health Medical Centre on
[98] Application p187.
1 June 2020 when an MRI was arranged. The applicant was then seen again for back problems on 6 June 2020 with the MRI results.[98]
The applicant was seen at the Family Medical Centre Auburn for back problems on
[99] Application p143.
9 June 2020 with the notes indicating he was to be referred to a neurosurgeon.[99]
The applicant’s MRI examination on 3 September 2021 produced a report showing a disc protrusion at the T12/L1 level and central canal stenosis. I also note there was some indication of disc desiccation at L3/4 and L4/5 albeit of a minimal nature.
Dr Khong diagnosed the applicant as having suffered an exacerbation of degenerative changes in the lumbar spine and musculoligamentous strain with the main contributing factor being the long hours of driving.
As noted I have difficulty understanding Dr Robinson’s opinion and diagnosis and prefer the opinion of Dr Khong in relation to the alleged low back injury as being consistent with the totality of the medical evidence.
It is logical to me that if the applicant had a pre-existing back condition that was serious enough to require treatment in 2014 and merit referral to a specialist neurosurgeon and an MRI in 2020 that back condition was likely to have been aggravated by long hours driving a truck particularly if the truck seat was uncomfortable placing strain on the lumbar spine.
From many years of doing personal injury litigation I am familiar with the emphasis medical practitioners and physiotherapists place on the need for good posture, lumbar support and mobilization and exercise in alleviating the symptoms of a back injury (in passing I note that Dr Wenxiong He refers to advising the applicant about exercise and core exercises in his notes)[100] – all of those modalities of behaviour would be compromised by long work hours driving in a seat that the applicant found uncomfortable.
[100] Application pp204-205.
The notes of the various treating doctors confirm a consistency of treatment for low back problems from the end of August 2021 though to the dates the notes come to an end in around August 2023.
Subject to consideration of certain factual evidence which is dealt with below I accept the medical evidence that the applicant suffered an injury to his lumbar spine in the nature of aggravation of pre-existing degenerative changes to which his employment was the main contributing factor.
In relation to the medical evidence concerning the allegation of an injury to the applicant neck I am not persuaded on the balance of probabilities that any such injury was sustained.
The neck injury was not recorded as being mentioned at the time of the initial consultation with the Hall Street Medical Centre practice and the first recorded complaint of neck pain is recorded in September 2021.
Further as I have noted in my summaries of the notes from the various medical practices attended by the applicant there is not a constant mention of neck problems thereafter – the incidence of neck pain seems to come and go without explanation.
The applicant did have attendances at general practices before August 2021 when neck pain was recorded as being complained of but those reports were intermittent in nature.
While the incidence of such reports of neck pain do increase after August 2021 they remain intermittent and somewhat consistent with the pattern before that date.
Dr Khong’s opinion in relation to the nature of the alleged neck injury was based upon a history that the applicant started to experience neck pain two months prior to the date the applicant ceased work.[101]
[101] Application p79.
There is no corroboration of that claim in the various doctors’ records and if it had been a significant issue I would have expected there to be some record of such a complaint at the time he first attended a doctor for treatment.
I am not able to conclude that the history relied upon by Dr Khong was accurate and as an opinion based on an incorrect history I am unable to accord it significant weight.[102]
[102] See Paric v John Holland ConstructionsPty Ltd [1984] 2 NSWLR 505.
Further I do not understand how driving a truck is alleged to have caused an aggravation of an alleged degenerative condition of the neck.
The applicant’s statement does not explain how his neck was injured – he states that long hours on the road in an unsuitable seat put pressure on his back but does not explain how the work activities caused pain in his neck.[103]
[103] Application p2.
Similarly Dr Khong while providing a diagnosis of a neck injury does not explain how long hours of driving could have injured same – it really is a bare ipse dixit of little persuasive value.
The other medical evidence does not provide any opinion providing an explanation of the mechanism of injury that would have caused a neck injury as alleged by the applicant.
I also note that the medical reports of Drs Lim and Calvache Rubio express the following statement under the heading “Conclusion” which I take to be a summary of their opinion as to diagnosis and causation,
“He sustained back and knee injuries due to the nature of his work. Work was the main contributing factor for their injury.”[104]
[104] Application pp65,68.
Neither Dr Lim nor Dr Calvache Rubio express an opinion supporting an allegation of injury to the applicant’s neck much less do they address issues such as whether the applicant suffers from a disease in his neck, whether that disease was aggravated by work activities, how that aggravation occurred and whether the applicant’s employment was the main contributing factor to such an aggravation.
I am not persuaded on the balance of probabilities that the applicant suffered any injury to his neck/cervical spine in or arising out of the course of his employment to which his employment was the main contributing factor.
In relation to the alleged injury to both knees I note that any complaint of knee injury was not recorded at the time of the initial consultations following the alleged date of injury.
Further I really do not understand how the applicant’s work for the first respondent would have placed significant strain on the applicant’s knees.
The applicant’s own evidence is that he used to do 12 deliveries of skip bins a day and would have to get out of and back into the truck at each stop.[105]
[105] Application p15.
The applicant states that he used to work up to 15 hours a day. Mr Maamari states that the applicant worked up to 12 hours a day on occasion.
The applicant describes how he would drive up to 500km a day in slow traffic while working for the first respondent.
I note further that the applicant’s own evidence is that on the last day of work he started at 6.44am and drove to Wollongong and 90 minutes later he was in such pain he had to stop for a rest and then drove back to the yard ceasing work around 11.00am. That means that on the last day of work he took over four hours to complete one job.
Given the slow nature of Sydney and surrounding areas traffic I accept that the applicant would have had to spend long periods driving but am also of the view that it would be very unlikely that the applicant could have regularly completed as many as 12 delivery jobs a day.
Even accepting that the applicant did manage to do 12 delivery jobs a day on his own evidence he would only have had to get in and out of the truck approximately 50 times over a 12-hour period stepping up a step or two. In one sense it is like the applicant taking 12 hours to go up and down an average staircase in a house twice.
It is difficult to imagine how such a limited number of entry and exits could have caused or aggravated injuries to the applicant’s knees. This is not a history of constant bending of knees, spending long hours standing, walking long distances or doing lifting tasks using the knees.
Further when regard is had to the expert opinion of Dr Khong I note that his opinion as to diagnosis makes no mention of bilateral knee injuries nor to the causation of same.[106]
[106] Application p80.
I note that Dr Khong under the heading “General history including relevant background, date of injury, detailed history of the circumstances, job description/work tasks (when relevant)” recorded the following,
“He also noticed left sided knee pain, likely related to getting in and out of his truck repetitively.”[107]
[107] Application p79.
I do not read that statement as being an expression of an opinion by Dr Khong it is rather a record of what the applicant told the doctor.
Having regard to the heading of the section of the report where it appears and having regard to the content of the paragraph in which it appears I am of the view that what is recorded by Dr Khong, as cited at paragraph 252 is what the applicant told him about the alleged development of knee pain. It is not a statement of diagnosis and opinion by Dr Khong.
Even if it was a statement of opinion (which in my view it is not) the statement does not identify the nature of any injury, it does not state that there is a disease process present, it does not identify any disease, it does not identify how the process of getting in or out of the truck would have aggravated the disease (noting that the applicant’s counsel stated that the applicant was relying on an allegation of injury based on s 4(b)(ii) of the 1987 Act) and it does not state that work was the main contributing factor.
In my view the applicant’s qualified medical opinion does not support an allegation of injury to both knees as claimed.
Both Dr Lim and Dr Calvache Rubio express an opinion in identical terms stating,
“He sustained back and knee injuries due to the nature of his work. Work was the main contributing factor for their injury.”[108]
[108] Application p65,68.
Leaving aside the fact that the identical formulation of the opinion, including the strange use of the word “their” in same, suggests that not a lot of independent or careful thought went into same I note that the opinions do not appear to be based on an accurate history of how often the applicant actually got in and out of his truck in the course of his work.
Both doctors, again in identical terms, record the applicant as doing “repetitive climbing in and out of a truck at work”[109] but do not record how often that task was carried out.
[109] Application p64,67.
The opinions are not, in my view, based on an accurate history and accordingly must be of limited probative value on that point alone.[110]
[110] See Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505.
The opinions do not explain the mechanism of injury to the knees, they do not identify any disease or disease process or the nature of the injury. Both doctors simply state that the applicant sustained “knee injuries”[111](again in identical terms).
[111] Application pp66,69.
The opinions of Drs Lim and Calvache Rubio in relation to the alleged injuries to the applicant’s knees are of little weight and I certainly do not feel an “actual persuasion”[112] that the applicant suffered any injury to either knee.
[112] See Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10 at paragraph 105.
In my view the applicant fails to establish on the balance of probabilities that he suffered any injury to either knee in or arising out of the course of his employment.
There will be an award for the respondent in respect to the allegation of injury to the applicant’s knees.
Returning to the issue of the alleged injury to the applicant’s low back I do accept that immediately prior to the date the applicant ceased work with the first respondent that he had been unhappy with his reduced work hours and had actually been seeking extra work.
I have carefully considered Mr Doak’s submissions which extensively dealt with the apparent inconsistency between a worker seeking to obtain additional work and almost immediately thereafter claiming to be incapacitated to perform that work.
Mr Doak essentially submitted that given that inconsistency, and other deficiencies in the applicant’s histories to doctors that I would not be satisfied and could not accept the applicant’s case that he had suffered injury as alleged.
The written submissions of the third respondent were really addressed to a case that the applicant was not bringing, namely that the applicant suffered a frank injury on 20 August 2021, but nonetheless those submissions did raise some similar concerns as did Mr Doak namely the third respondent asserted that the applicant had not had medical treatment at the time he went off work and given the delay in making a claim for workers compensation benefits would lead me to the conclusion that no injury was sustained as alleged.
There is certainly some strength in Mr Doak’s submissions however after carefully considering all the evidence it is my view that the apparent inconsistency between the request for more work and the allegation of work injury to the back can be explained.
The applicant makes no secret of the fact that he was keen to work as much as possible as he had a number of financial pressures to do so.[113]
[113] Application p14.
The applicant did however have a pre-existing back condition as has been detailed previously in these reasons.
The applicant alleges that he developed back pain due to the seat he was sitting on while driving for the first respondent.
He states that the back pain became so bad that on 20 August 2021 he had to cease work having only completed one job by 11.00am.
He states that a “timesheet” attached to his statement of 3 March 2025 corroborates that version of events.
The validity and accuracy of the “timesheet” attached to the applicant’s statement dated
3 March 2025 has not been disputed by the third respondent despite him having been joined to the proceedings and having been provided with a copy of all the pleadings and attachments.
The failure to deal with the contents of the “timesheet” document is particularly significant in my view given that in his only statement in evidence ([BG2] a being the statement of 2 November 2022 Mr Maamari stated as fact that the company records indicate that the applicant did not work on 20 August 2021.
If Mr Maamari disputed the accuracy of the “timesheet” and had records to support that dispute I would expect such documents to form part of a further supplementary statement.
While I have reservations as to the provenance of that “timesheet” which I do not think could be considered a business record I feel that its undisputed content provides some corroboration of the applicant’s version of events on 20 August 2021 namely that he started work at the usual time but had to cease work during the day due to back pain. The “timesheet” shows the applicant ceasing work at around 11.00am.
That “timesheet” and the applicant’s evidence is consistent with a worker attempting to remain at work as long as possible, and seeking as much work as possible due to financial commitments finding himself unable to continue once his back pain increased to a sufficiently high level that he was unable to continue at work.
The applicant states that he attempted to rest after stopping work but eventually saw a doctor a few days later.
That is in my view a not unreasonable approach to attempting to return to work in a day or so which explains the delay in immediately seeking treatment.
One further point is that if what had occurred was that there had been a dispute between
Mr Maamari and the applicant about work availability with the applicant being unhappy with what was provided (which is consistent with the copied screen shots attached to
Mr Maamari’s statement) and if the applicant was fit for work the logical thing for him to have done is to have simply started looking for work elsewhere and then taking up such a position.
To pursue a workers compensation claim with its reduced benefits and uncertain outcome while under financial stress makes no sense.
Having carefully considered the apparent inconsistency between seeking extra work immediately before claiming to have suffered a work injury leading to incapacity I am of the view that on the balance of probabilities the explanation for what occurred is as I suggest above – the applicant was trying to stay at work for as long as possible but was ultimately unable to continue.
Having regard to all the evidence both medical and factual I am of the view that the applicant proves on the balance of probabilities that he suffered an injury to his lower back in the nature of an aggravation of a degenerative disease and that his employment was the main contributing factor to that aggravation.
I note that the date of incapacity was 20 August 2021 which I therefore find to be the deemed date of injury to the applicant’s low back.
The final issue to consider in relation to the “injury” issue is whether the applicant suffered a consequential condition as a result of a work injury.
I have found that the applicant suffered an injury to his low back (lumbar spine) as set out previously in these reasons.
The applicant has been diagnosed by Mr Carl Nielsen psychologist as suffering from an adjustment disorder with depressed and anxious mood as a result of his work related injury.[114]
[114] Application p58,70.
Mr Nielsen relates that condition to the distress experienced by the applicant’s inability to work and the effect of the injury on his other social and sporting activities.
Dr Lim and Dr Calvache Rubio both provide opinions supporting the view that the applicant developed an adjustment disorder as a result of his work related injuries.[115]
[115] Application pp65,68.
There is no medical opinion relied upon by the respondent disputing the diagnosis of an adjustment disorder nor any medical evidence dealing with the causation of same with the respondent’s medical case simply disputing any injury to the applicant’s back and knees.
Applying the so called commonsense test of causation[116] I find on the balance of probabilities that the applicant has developed an adjustment disorder with depressed and anxious mood as diagnosed by Mr Nielsen which resulted from the low back injury sustained by the applicant and its resulting impacts on his employment and social and sporting activities.
[116] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.

INCAPACITY

The applicant is seeking an award of weekly compensation pursuant to s 37 of the 1987 Act from 16 June 2022 to 27 March 2023.
I note that the applicant’s evidence is that he had not returned to work between those two dates.
Section 37 of the 1987 Act relevantly provides as follows;
“(1)    The weekly payment of compensation to which an injured work who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2)     (Not relevant in the present case)
(3)     The weekly payment of compensation to which an injured work who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser or the following rates-
a)80% of the workers pre-injury average weekly earnings, less the worker’s current weekly earnings,
b)the maximum weekly compensation amount, less the workers current weekly earnings.”
The applicant has filed a wages schedule pleading that as at 16 June 2022 the applicant’s pre-injury average weekly earnings (PIAWE) was $860 per week.
That figure is not too far removed from the PIAWE calculated by the second respondent in its notice accepting provisional liability dated 13 October 2021 being a figure of $833.30 as at the date of injury.
Accordingly I will accept that the PIAWE as at 16 June 2022 has been correctly calculated particularly given the absence of any wages schedule filed by any respondent.
I will also assume that the increase calculated with effect from October 2022 has been correctly calculated to yield a result of $889 per week.
In terms of the medical evidence in relation to incapacity for the period from 16 June 2022 to 27 March 2023 Mr Doak argued that the medical evidence in support of the applicant’s claimed incapacity petered out in August 2022 and that any award of weekly compensation should come to an end at that time.
In his medical report dated 23 August 2022 Mr Carl Nielsen expressed the view that psychologically the applicant remained unfit for “any work duties”.[117] Mr Nielsen also stated that the prognosis remained unclear.
[117] Application p70.
Dr Lim in his report dated 31 July 2022 also certified the applicant as being unfit for work as a result of his physical injuries and his adjustment disorder as at that time.
There is no medical report from the respondent dealing with the applicant’s work capacity as at 16 June 2022 through to 27 March 2023.
Accordingly, the medical evidence available to me certifies the applicant as having no current work capacity from 16 June 2022 through to 23 August 2022 with no indication of recovery thereafter.
I have already noted that the applicant was eager to work as much as possible and had financial pressures to do so.
Given the soft tissue nature of the aggravation of the applicant’s back condition by the long hours seated in what was for the applicant an uncomfortable seat it would not in my view be inconsistent with the medical evidence to expect some improvement, even if not amounting to a complete resolution, of symptoms in the back once the aggravating activity was taken away.
I also note that it is my understanding that an adjustment disorder normally has a prognosis of improvement and resolution.
Accordingly I am prepared to accept that on the balance of probabilities the applicant had no current work capacity between 16 June 2022 through to 27 March 2023 by which stage he had recovered sufficiently to enable him to return to work.
An award of weekly compensation will be made accordingly at the rate of 80% of the applicant’s PIAWE during the period.

Medical and related treatment expenses

I note that the applicant is claiming payment of medical and related treatment expenses for both the past and future.
Given the nature of the issues in dispute and my findings as to injury I consider that a general order under s 60 of the 1987 Act is appropriate.
Should there be any dispute as to what part of parts of the body were treated and for what injury or should there be any dispute as to the reasonableness or cost of same that should be dealt with by the parties in the first instance and failing agreement could be the subject of further litigation.

SUMMARY

I find that the applicant was a worker within the meaning of s 4 of the 1998 Act and was employed by the first respondent.
The first respondent was uninsured for the purposes of workers compensation liability.
The first respondent is a deregistered corporation.
I find on the balance of probabilities that the applicant suffered an injury in the course of his employment with the first respondent in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease within the meaning of s 4(b)(ii) of the 1987 Act being a degenerative condition of the applicant’s low back.
The deemed date of injury of the applicant’s low back injury is 20 August 2021 being the date of incapacity.
I find on the balance of probabilities that the applicant’s employment was the main contributing factor to his disease injury affecting his low back.
I find that the applicant fails to establish on the balance of probabilities that he suffered injury to his neck as alleged and there will be an award for the respondent in respect of that allegation.
I find that the applicant fails to establish on the balance of probabilities that he suffered injury to his right and left knees as alleged and there will be an award for the respondent in respect of that allegation.
On the balance of probabilities I find that the applicant developed an adjustment disorder as a result of his low back injury.
The applicant has been paid weekly compensation benefits up to 16 June 2022 pursuant to ss 36 and 37 of the 1987 Act.
I find on the balance of probabilities the applicant was incapacitated for his pre-injury employment and had no current work capacity from 5 July 2022 to 27 March 2023 when he was able to return to work and earn as much or more than his then current PIAWE.
As the first respondent is de-registered and was uninsured it is my view that the appropriate form of the awards are to be as follows:
(a)    the applicant was employed by first respondent between mid 2020 and
20 August 2021 and was a worker within the meaning of s 4 of the 1998 Act;
(b)    the first respondent was uninsured for workers compensation liability and is deregistered;
(c) the applicant suffered an injury in the course of his employment with the first respondent in the nature of the acceleration, exacerbation, aggravation or deterioration of a disease, namely a degenerative condition of the applicant’s low back, to which his employment was the main contributing factor within the meaning of s 4(b)(ii) of the 1987 Act;
(d)    the deemed date of injury is 20 August 2021;
(e)    there will be an award for the respondent in respect of the alleged injuries to the applicant’s neck and left and right knees;
(f)    the applicant suffered a consequential condition, being an adjustment disorder, as a result of his low back injury;
(g)    the applicant had no current work capacity between 16 June 2022 and
27 March 2023;
(h)    there will be an award that the second respondent is to pay the applicant weekly compensation as follows:
(i)from 16 June 2022 to 30 September 2022 at the rate of $688 per week pursuant to s 37 of the 1987 Act;
(ii)from 1 October 2022 to 27 March 2023 at the rate of $711.20 per week pursuant to s 37 of the 1987 Act;
(i)    the second respondent to have credit for any payments already made in respect of the periods covered by the award of weekly compensation;
(j) there will be an award that the second respondent is to pay the applicant’s reasonably necessary medical and related treatment expenses in respect of the applicant’s low back injury and consequential condition of an adjustment disorder pursuant to s 60 of the 1987 Act, and
(k)    each party to have liberty to apply to the Commission in respect of the form of these orders and awards with any such liberty to be exercised within seven days hereof.

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[2025] NSWPIC 523

1 October 2025