Friend v Vacvator Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Friend v Vacvator Pty Ltd [2023] NSWPIC 224
APPLICANT:	Andrew Friend
RESPONDENT:	Vacvator Pty Ltd
Member:	Karen Garner
DATE OF DECISION:	5 April 2023
date of amendment:	16 May 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation pursuant to section 33; medical and related expenses of L5/S1 anterior interbody spacer surgery pursuant to section 60; lump sum compensation for permanent impairment pursuant to section 66; applicant had accepted injury to left hip which respondent alleged had resolved; whether the applicant sustained injury to his lumbar spine pursuant to sections 4(a), 9A and 4(b); Held – applicant sustained injury to his lumbar spine arising out of and in the course of his employment pursuant to section 4(a) and his employment was a substantial contributing factor pursuant to section 9A; applicant sustained injury to his lumbar spine in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease process to which his employment was the main contributing factor pursuant to section 4(b)(ii); the proposed L5/S1 anterior interbody spacer surgery is reasonably necessary; the applicant was and remained totally incapacitated for work as a result of the injury to his left hip and lumbar spine from 13 April 2021 and continuing; the applicant’s condition has not stabilised and attained maximum medical improvement and accordingly it is not appropriate to refer the matter to a Medical Assessor for assessment of whole person impairment and determination of permanent impairment compensation pursuant to section 66; accordingly, the respondent is ordered to pay the costs of and incidental to L5/S1 anterior lumbar interbody fusion surgery in accordance with section 60; the respondent is ordered to pay the applicant weekly compensation in the amount of $1,401 per week from 14 April 2021 to date, and continuing, pursuant to section 37(1); the application for permanent impairment compensation pursuant to section 66 is dismissed.
determinations made:

The Commission determines:

The applicant sustained injury to his lumbar spine on 8 September 2020 arising out of and in the course of his employment with the respondent pursuant to s 4(a) of the 1987 Act and his employment was a substantial contributing factor pursuant to s 9A(1) of the 1987 Act.
The applicant sustained injury to his lumbar spine on 8 September 2020 in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease process to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act.
The treatment proposed by Dr Coughlan in a letter dated 1 March 2021, being L5/S1 anterior lumbar interbody fusion surgery, is reasonably necessary as a result of injury on 8 September 2020.
The applicant was and remained totally incapacitated for work as a result of the injury to his left hip and lumbar spine from 13 April 2021 to 7 March 2023.
The applicant’s condition has not stabilised and attained maximum medical improvement and accordingly it is not appropriate to refer the matter to a medical assessor for assessment of whole person impairment and determination of permanent impairment compensation pursuant to s 66 of the 1987 Act at this time.

The Commission orders:

The respondent to pay the costs of and incidental to L5/S1 anterior lumbar interbody fusion surgery proposed by Dr Coughlan in a letter dated 1 March 2021 in accordance with s 60 of the 1987 Act.
The respondent to pay the applicant weekly compensation in the amount of $1,120.80 per week indexed from 13 April 2021 to 7 March 2023, pursuant to s 37(1) of the 1987 Act.
The application for permanent impairment compensation pursuant to s 66 of the 1987 Act is dismissed.
Award for the respondent with regard to injury to the right hip.

AMENDED STATEMENT OF REASONS

BACKGROUND

Andrew Friend (the applicant) is a 54-year-old man who was employed by Vacvator Pty Ltd (the respondent) in the position of Fitter Mechanic.
The applicant alleges that he injured his lumbar spine, right lower extremity (hip) and left lower extremity (hip) at work on 8 September 2020 whilst lifting a hydraulic cylinder as he climbed a ladder.
The applicant initiated a claim for workers compensation by way of a Certificate of Capacity issued by Dr Ejaz Mohammad dated 10 September 2020,[1] which stated a diagnosis of work related injury being “Soft tissue injury – Sprain/ Strain/ Tear – L Psoas Major/ Adductor Longus”.
[1] Reply, page 1.
By notice dated 30 September 2020,[2] the insurer issued a work capacity decision pursuant to s 43 of the Workers Compensation Act 1987 (the 1987 Act), which stated that the applicant has no current capacity for work.
[2] ARD, page 16.
On 18 December 2020, the insurer accepted liability for “left hip/groin injury”.[3]
[3] Insurer’s notice dated 21 October 2022: ARD, page 24.
On or about 1 March 2021, the applicant made a claim for medical and related expenses pursuant to s 60 of the 1987 Act, in accordance with a request by Dr Marc Coughlan dated
[4] ARD, page 63.
1 March 2021 for approval for an L5/S1 anterior lumbar interbody fusion surgery (the surgery).[4]
The applicant was paid weekly compensation to 13 April 2021, calculated on the basis of pre-injury average weekly earnings (PIAWE) of $1,401.68.[5]
[5] ARD, pages 9, 16 and 20.
By notice dated 18 March 2021[6] issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent’s insurer declined liability for ongoing weekly compensation and medical and related expenses in relation to a stated injury of “Other sprain of left hip” on 8 September 2020. The insurer decided to bring the applicant’s weekly benefits to an end from 13 April 2021. The insurer disputed that:
(a)    the injury was received in the course of employment as required by s 4 of the 1987 Act;
(b)    the applicant’s employment was a substantial contributing factor to his injury as required by s 9A of the 1987 Act;
(c)    the applicant has total or partial incapacity for work resulting from an injury as required by s 33 of the 1987 Act, and
(d)    the medical or related treatment is reasonably necessary as a result of an injury as required by ss 59 and 60 of the 1987 Act.
[6] ARD, page 9.
By letter dated 16 September 2022, the applicant’s solicitors requested a review of the insurer’s decision dated 18 March 2021. The letter asserted that the surgery is reasonably necessary and that the applicant’s condition is not stable for the purposes of assessment of whole person impairment (WPI). In the alternative, being the event that the insurer found that the surgery is not reasonably necessary, then the letter asserted that the applicant’s condition is stable for the purposes of assessment of WPI and the applicant also made a claim for permanent impairment lump sum compensation (permanent impairment compensation) pursuant to s 66 of the 1987 Act in the amount of $67,829.60 with respect to 24% WPI in relation to injury to the lumbar spine, right lower extremity (hip) and left lower extremity. The letter attached a report of Dr Patrick dated 19 July 2022 and a report of
Dr Marc Coughlan dated 9 November 2021.
By notice dated 21 October 2022,[7] the insurer stated that it maintained its decision dated
[7] ARD, page 22.
18 March 2021, pursuant to ss 33, 59 and 60 of the 1987 Act in respect of the left hip injury and pursuant to ss 4, 9A, 33, 59 and 60 of the 1987 Act in respect of the lower back injury. Whilst the insurer accepted that the applicant had an injury to his left hip, it stated that the effect of the injury has now ceased. In respect of the applicant’s back, it declined injury outright. The notice stated that it did not deal with the claim for permanent impairment compensation.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 12 December 2022, which states that the applicant seeks:
(a)    weekly compensation pursuant to ss 33 and 37 of the 1987 Act, from
13 April 2021 ongoing, calculated on the basis of PIAWE of $1,486.06;
(b)    medical and related expenses pursuant to s 60 of the 1987 Act in the amount of $25,000 for “Anterior interbody Spacer at L5/S1”, and
(c)    permanent impairment compensation pursuant to s 66 of the 1987 Act, in the amount of $67,829.60, calculated on the basis of 24% WPI in relation to injury to the lumbar spine, right lower extremity and left lower extremity.
On 10 January 2023, the respondent lodged in the Commission a reply to the ARD.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

At a conciliation/arbitration hearing, conducted by MS Teams on 16 March 2023, Mr Ross Goodridge, counsel, appeared on behalf of the applicant, instructed by Ms Jina Alikazay of Firths – The Compensation Lawyers, together with the applicant. Mr Stuart Grant, counsel, appeared on behalf of the respondent, instructed by Mr Glenn Dolan of HWL Lawyers, together with representatives of the respondent and the insurer.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
As noted at the conclusion of this Statement of Reasons, the original Certificate of Determination and Statement of Reasons has been amended.

ISSUES FOR DETERMINATION

As noted above, the insurer’s letter dated 21 October 2022,[8] stated that it maintained a dispute pursuant to ss 33, 59 and 60 in respect of left hip injury and pursuant to ss 4, 9A, 33, 59 and 60 of the 1987 Act in respect of lower back injury. Whilst the insurer accepted that the applicant had an injury to his left hip, it stated that the effect of the injury has now ceased. In respect of the applicant’s back, it declined injury outright. The notice did not deal with the claim for permanent impairment compensation.
[8] ARD, page 22.
At the hearing, Mr Goodridge, counsel for the applicant, stated that the applicant does not press any claim for compensation in relation to the applicant’s right hip and accepts that there should be an award for the respondent in relation to the right hip.
The parties agree that the following issues remain in dispute in relation to the applicant’s left hip and lumbar spine:
(a) in relation to the lumbar spine:
(i)whether the applicant sustained injury, arising out of or in the course of employment and his employment was a substantial contributing factor to the injury, pursuant to ss 4(a) and 9A of the 1987 Act, and
(ii)whether the applicant contracted a disease or sustained aggravation, acceleration, exacerbation or deterioration of disease, arising out of or in the course of employment and his employment was the main contributing factor to the disease or the aggravation, acceleration, exacerbation or deterioration of disease, pursuant to ss 4(b)(i) and (b)(ii) of the 1987 Act;
(b) in relation to the left hip and the lumbar spine:
(i)whether the applicant has total or partial incapacity for work resulting from an injury and the extent and quantification of any entitlement to weekly compensation, pursuant to s 33 of the 1987 Act;
(ii)whether medical or related treatment is reasonably necessary as a result of an injury, pursuant to ss 59 and 60 of the 1987 Act, and
(iii)whether the applicant is entitled to permanent impairment compensation, pursuant to s 66 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.

Oral evidence

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

Applicant’s evidence

Applicant

The applicant gave evidence by way of a statement dated 21 October 2021.
The applicant stated that, for almost his entire working life prior to the alleged injury, he engaged in fitting and welding work of a physical nature, he rarely ever took time off work for any reason and he never had a treating practitioner because he had no requirement to consult one.
The applicant stated that he was injured on 8 September 2020, during the course of his employment with the respondent in the position of fitter mechanic. The mechanism of injury was that the applicant was going up an A-frame ladder without handles whilst carrying an item in his left hand which weighed approximately 8 to 12kg. The process by which the applicant ascended the ladder was that, as he continued to hold the item in his left hand, he reached his right hand up and grabbed the frame of the ladder, then stepped his feet up until both feet were on the same step, and then again reached his right hand further up the ladder to steady himself. As the applicant proceeded up the ladder, he was twisting with the weight of the item hanging down by his side in his left arm. The applicant felt an immediate sensation of a pulling in his left groin area together with a sharp shooting pain. The applicant was immediately concerned about the pain and shortly after that he got off the ladder. The applicant initially thought that he had just strained a muscle, however as he began to move around after he got off the ladder he noticed that, with movement, he had a sharp, shooting intermittent pain going around the outside of his left thigh. The sharp, shooting pain stopped if the applicant was not moving around however the pain on the inner side of his groin remained constant. The applicant disputes, as inaccurate, the history recorded by Associate Professor Miniter that he was simply ascending stairs.
The applicant stated that he advised the respondent of the problem and was referred to the respondent’s doctor, Dr Mohammad. The applicant attended Dr Mohammed with his wife. The applicant told Dr Mohammad how the injury occurred and stated that, whilst the pain was not currently present, he had had intermittent shooting pain on the outside of his left thigh. When Dr Mohammad questioned whether the applicant’s back was sore, the applicant said that his back was a bit stiff but he was far more concerned with the pain in his leg. The applicant disputes, as incomplete, the history recorded by Dr Mohammad on that occasion.
The applicant stated that on or around 15 September 2020, he returned to Dr Mohammad after undertaking an ultrasound of his groin. The applicant reported continuing problems in the groin and a sharp, shooting sensation on the outside of his left thigh.
The applicant stated that he then attended Dr Liu of the same medical practice (due to
Dr Mohammad’s unavailability) following a CT scan of his hip and groin. The applicant gave Dr Liu the same history and symptoms that he had previously reported to Dr Mohammad, namely intermittent left hip pain shooting down his thigh caused by movement and weight bearing, sudden sharp electric shock-type symptoms as well as pain in his groin area and ongoing stiffness in his back.
The applicant stated that the pain on the inner side of his groin has since resolved however the sharp, shooting pain on the outer side of his left thigh has continued and the back pain has deteriorated.
The applicant stated that he had never experienced any such problems until the injury on
8 September 2020.
Since 8 September 2020, the applicant has experienced significant and unrelenting problems with the injuries. The applicant was unable to work and was certified unfit for work until approximately 25 October 2020. Between 26 October 2020 and 6 November 2020, the applicant was certified fit to return to suitable duties for 6 hours a day, 5 days a week, and he undertook light duties for two weeks which increased his pain levels. From 6 November 2020 to 20 November 2020, the applicant was again certified unfit for work. From
20 November 2020 to 18 December 2020, the applicant undertook a trial return to work for three hours a day, five days per week, performing light duties, however again experienced increased pain. The applicant was again certified as unfit for work from 15 December 2020 and the applicant has remained certified as having no capacity for any form of work from that date.
The applicant continues to experience significant ongoing pain and disability, which also detrimentally affects and restricts his sleep and daily living. Generally, he cannot walk for more than 10 to 20 minutes without increased pain, he can rarely stand for more than 10 to 15 minutes before he needs to sit down and he can only sit for 20 to 30 minutes before he stiffens and becomes sore, needing to move again. The applicant also requires to lay down for between 20 to 30 minutes at least once a day to try to ease the pain. He cannot undertake any heavy lifting or carrying and cannot do anything which requires repetitive bending, twisting or turning. He has difficulty driving or travelling in a vehicle for any prolonged period of time.
The applicant stated that he is now unable to undertake any physical work. Further, he is unable to engage in any form of office work, paperwork or computer work because he has dyslexia. The applicant stated that he cannot physically work or think of any work suitable for him.
At the time of the injury on 8 September 2020, the applicant was earning approximately $1,401.68 per week.
The applicant seeks the claimed compensation and surgery recommended by Dr Coughlan.

Tania Friend, applicant’s wife

Mrs Friend gave evidence by way of a statement dated 21 September 2021.[9]
[9] ARD, page 8.
Mrs Friend stated that after the applicant sustained injury on 8 September 2020, he complained to her about pain on the left inner groin, some lower back stiffness and intermittent sharp shooting sensation down the outside of his left thigh. She insisted that he see a doctor because she was concerned about the severity of the applicant’s symptoms.
Mrs Friend stated that she accompanied the applicant to his appointment with Dr Mohammad because her husband was someone who under-complains about any problem and she wished to ensure that he would attend and make a complaint of his injuries. Mrs Friend confirmed that the applicant did advise Dr Mohammad that he had intermittent sharp shooting pain down the exterior of his thigh and stated that his back was “a bit stiff, but nothing compared to the other problems that I am having”.

Treating medical evidence

Dr Ejaz Mohammad, general practitioner

In a report dated 3 November 2020,[10] Dr Mohammad noted that on 29 October 2020 the applicant reported a flare up of his symptoms after sitting and standing and undertaking a trial of restricted work duties and that the applicant’s capacity was downgraded to unfit to work. Dr Mohammad noted that the applicant is unable to stand or sit for even short periods of time.
[10] ARD, page 49.
In a report dated 11 December 2020,[11] Dr Mohammad stated a dual diagnosis sustained in the work injury on 8 September 2020 being, firstly, strain/sprain of the left thigh which was “fully resolved” and, secondly, a L5/S1 posterior annulus tear and mild posterior disc bulge causing continuing symptoms of radiating neuropathic type pain over the left thigh.
Dr Mohammad stated that an MRI scan of the lower back was not suggestive of any arthritis. Dr Mohammad stated that the ongoing symptoms are because of L5-S1 posterior annulus tear, which could be caused by injuries including improper lifting, repetitive movement and trauma. Dr Mohammad stated that the management of annular tear required initial conservative treatment which includes NSAIDs, steroid injections and physiotherapy.
[11] Reply, page 26.
[12] Reply, pages 26 and 27.
Dr Mohammad said that surgery should be considered if symptoms do not respond to conservative treatment. Dr Mohammad stated that annular tears can take a long time to heal.[12]

Dr Mohammad referred the applicant to Dr Coughlan for advice and management of his lower back/lumbar spine. In a referral letter to Dr Coughlan dated 12 January 2021,[13]
[13] ARD, page 61.
Dr Mohammed stated that the applicant presents with L5-S1 posterior annulus tear with very mild posterior disc bulge post work injury in September 2020. Dr Mohammad noted that the applicant has been having severe lower back pain radiating down the left leg. He further noted that treatment with Lyrica and a CT guided cortisone injection of left 4/5 and L5/S1 facet joints and around the left trochanteric tendon insertions had been ineffective.
In a referral letter to Dr Solomon dated 30 March 2021,[14] Dr Mohammad stated that the applicant presents with a severe acetabular labral complex tear in his left hip, post work injury on 8 September 2021, which appears to state an incorrect date of injury.
[14] ARD, page 64.

Dr Ivan Liu, general practitioner

In physiotherapy referral letter dated 23 September 2020,[15] Dr Liu stated that:
“... The injury was sustained in the left groin while carrying a weight of 8kg up a ladder, he felt a sudden pain in the left groin and thigh. Subsequently he has been resting and US of the groin has not shown any significant pathology and CT of the pelvis showed only osteoarthritis for the pelvis and SI joints. On examination there is pain exacerbated by movement and WB as well as mild midline + left paraspinal around L 4/5 region. I believe this either represents a nonspecific lower back injury or a left thigh muscle sprain which was not included in the view of the US ...”
[15] ARD, page 44.

Dr Marc Coughlan, neurosurgeon

In a report dated 9 November 2021,[16] Dr Coughlan noted that the history of injury on
[16] ARD, page 38.
[17] ARD, page 38.
[18] ARD, page 38.
8 September 2020 when the applicant was lifting a heavy weight whilst climbing a ladder and had an immediate onset of low back pain and pain in the left leg. Dr Coughlan stated that imaging showed dual pathology being an annular tear at L5/S1 and some early retrolisthesis at L5/S1 and also significant changes in the applicant’s hip.[17] Dr Coughlan stated that the applicant has a very antalgic gait and is in obvious discomfort and is currently totally incapacitated for work.[18]
Dr Coughlan stated that the applicant suffered an acute injury. He said that it was not considered an aggravation as the applicant had been asymptomatic prior to the injury.[19]
[19] ARD, page 38.
[20] ARD, page 38.
Dr Coughlan stated that he believed that the applicant’s work was the main and substantial contributing factor to the injury because the injury occurred whilst the applicant was carrying out his work duties.[20]
Dr Coughlan stated that he believed that L5/S1 anterior lumbar interbody fusion surgery is reasonably necessary and that that the applicant “has no real chance at returning to work if he does not have the proposed surgery due to his symptomology”. [21]
[21] ARD, pages 38-39.
In a report dated 13 February 2021, Dr Coughlan stated that: [22]
“... [the applicant] has been investigated for trochanteric bursitis and he did have some groin pain but this is largely diminished. The cortisone injection and Lyrica have not given him much relief. His main issue is significant neuropathic radiating pain down in the left leg. His reflexes are equal and symmetrical. He does not have any motor deficit or atrophy but he has a very antalgic gait and is in obvious discomfort preferring to stand.
His MRI scan does show an annular tear at L5/S1 and there is possibly a small fragment behind the S1 nerve root. I would recommend an updated MRI scan to see if this is more apparent. I suspect there is significant nerve compression in the left S1 nerve root and hopefully this will be more apparent on the updated MRI scan.”
[22] ARD, page 59.
In a report dated 27 February 2021, Dr Coughlan stated that:[23]
“... He injured himself on the 8^th September whilst in the course of his duties. Essentially he has had significant ongoing axial back pain and left sided hip pain. Both the onset of back pain and leg pain came on as a consequence of the same incident.
He did see an IME in Canberra and his MRI was done of his hip and this also shows significant changes. Essentially he has dual pathology. He has pain emanating from the left hip but he also has significant pain emanating from his lumbar spine. His imaging confirms an annular tear at L5/S1 and some early retrolisthesis at L5/S1. Clinically and subjectively his hip pain is 5/10 and at times with a shooting pain it can be a 9/10, and his background of back pain he puts at a constant pain of 5/10.
Andrew is having more issues subjectively with back pain. We have discussed the option of an anterior interbody spacer at L5/S1. Unfortunately his symptoms haven’t improved and if his symptoms do persist I would recommend this. He obviously has dual pathology with issues in the left hip and also significant issues in his lumbar spine. Certainly I think given his persistence of symptoms and the fact that has [sic] back pain is troubling him much more than leg pain, I think it is reasonable to focus on this first not withstanding the fact there is an issue in his left hip.
Currently given his ongoing pain he is a nil capacity in terms of work.”
[23] ARD, page 60.
A letter dated 1 March 2021[24] confirmed that Dr Coughlan has recommended that the applicant undergo L5/S1 Anterior Lumbar Interbody Fusion surgery and stated his fees to carry out the procedure was estimated to be $17,801.25 and that additional costs would include anaesthetist fees, assistant surgeon fees, vascular surgeon fees, hardware costs and hospital costs.
[24] ARD, page 63.

Michael Adams, physiotherapist

In a report dated 16 October 2020, Mr Adams noted a history of injury approximately five weeks prior “involving carrying a load up a ladder and mis-stepping”. Mr Adams stated that:
“On initial examination, adductor squeeze test was positive as was palpation of the adductor complex. Hip flexor testing and palpation also implicated hip flexor pathology.
My impression is a Grade II muscle sprain of the adductors and the hip flexor. Physiotherapy management will incorporate a strengthening and conditioning loading protocol as appropriate which will assist in the recovery of his symptoms and optimise his physical function.”

Clinical records

Clinical notes – Marima Medical Clinic

Clinical notes of the Marima Medical Clinic recorded the following:[25]
[25] ARD, pages 40 – 43.
(a)    On 10 September 2020, Dr Mohammad recorded that the applicant reported a work injury and that he “Felt a sudden deep pulling sensation in L groin while climbing a ladder carrying a cylinder weighing – 8kg … Got worse later that day” and that examination showed an antalgic gait and a point of tenderness over the psoas major/ adductor longus. Dr Mohammad diagnosed a left groin work injury, being “Soft tissue injury – Sprain/ Strain/ Tear - ? L Psoas Major/ Adductor Longus”.
(b)    On 15 September 2020, the applicant reported to Dr Mohammad that he “Continues to have symptoms”.
(c)    On 23 September 2020, Dr Ivan Liu recorded that the applicant reported:
“left hip pain – shooting down thigh
movement and weighbear makes it worse
sharp sudden possibly electric shock
no paraesthesia
...
imp: nonspecific lower back injury
vs left thigh muscle sprain.”
(d)    On 26 October 2020, Dr Mohammad noted that the applicant reported ongoing pain in left hip adductors and flexors and also recurrent neuropathic pain on external rotation at the hip joint, physiotherapy was not helping.
(e)    On 29 October 2020, Dr Mohammad recorded that a trial of light duties had resulted in symptoms flaring up. The applicant reported that his groin was better but that he had lower back pain.
(f)    On 6 November 2020, Dr Mohammad recorded that the applicant reported that symptoms were unchanged and that he could sit for only 10 minutes before getting pain.
(g)    On 30 November 2020, Dr Mohammad recorded that the applicant was notified of the results of ultrasound, the applicant had no relief from cortisone injection for possible gluteus mid tendonitis and that the applicant
“Continues to have neuropathic pain (sharp electric shock like pain) over the outer aspect of left thigh Has never been diagnosed to have any lower back problems.”
Dr Mohammad noted a diagnosis oof “? Exacerbation of Lumbar OA”.

Consultation records – Dr Ejaz Mohammad

Dr Mohammad’s consultation records noted:
(a)    on 15 December 2020, diagnostic imaging found evidence of L5/S1 posterior annulus tear and very mild posterior disc bulge, no central canal stenosis or nerve root impingement in the lumbar spine, mild left L4/5 and L5/S1 facet arthrosis. The applicant was referred for CT guided cortisone injection;
(b)    on 12 January 2021, the applicant reported ongoing and unchanged symptoms and that a CT guided cortisone injection was not effective;
(c)    on 9 February 2021, the applicant reported ongoing symptoms and new symptoms of dull ache with a slight burning sensation in the left gluteal region;
(d)    on 3 March 2021, Dr Coughlan recommended anterior interbody spacer at L5/S1 surgery, and
(e)    on 30 March 2021, the applicant reported worsening of his lower back pain and or neuropathic pain down the left leg, and a recent MRI showed severe acetabular labral complex tear of the left hip.

Clinical notes – PhysioFit Goulburn

The physiotherapist’s records noted[26] that the applicant initially presented with left side low back pain and shooting/stabbing pain in his left thigh after carrying weight up a step ladder. The applicant reported increasing pain with external rotation, walking and weightbearing. The applicant reported only temporary relief following sessions of physiotherapy with a return of pain within two to three days.
[26] ARD, page 54 – 58.

Diagnostic imaging

A CT Pelvis report dated 22 September 2020[27] stated that degenerative changes are seen at the hip joints, being more marked on the left side where there is a small detached ostephyte, degenerative changes were also seen at the SI joints, more marked on the left where there is an associated anterior bridging osteophyte. No other significant bone or joint abnormality was seen, no fracture was detected and no gross soft tissue abnormality was seen. The report commended that there was evidence of bilateral hip and SI joint osteoarthritis, more marked on the left.
[27] ARD, page 45.
An ultrasound left groin report dated 11 September 2020[28] stated that there was no evidence of abnormality in the left groin, soft tissue nor adductor.
[28] ARD, page 46.
A left hip injection ultrasound radiology report dated 16 November 2020[29] stated that there was no fluid within the trochanteric bursa or focal tenderness to suggest trochanteric bursitis. It noted some tenderness over the distal gluteus minimus but no tendon tear. It stated that this may reflect acute tendinosis. It noted that the gluteus medius appears normal and noted that there was no evidence of hip joint effusion, iliopsoas bursal distension or ischial bursitis apparent.
[29] ARD, page 47.
An MRI lumbar spine report dated 11 December 2020[30] reported a L5/S1 posterior annulus tear and very mild posterior disc bulge, no central canal stenosis or nerve root impingement in the lumbar spine and mild left L4/5 and L5/S1 facet arthrosis.
[30] ARD, page 66.
A CT injection facet joint report dated 23 December 2020[31] noted that the applicant was injected into the left L4/5 and L5/S1 facet joints and around the left trochanteric tendon insertions.
[31] ARD, page 65.
An MRI lumbar spine and MRI left hip report dated 24 February 2021[32] reported:
(a) in relation to the left hip: severe acetabular labral complex tear in the anterior and anterolateral aspect of the acetabulum, associated with deep chondral fissuring and subchondral cyst formation in the acetabulum, mild degree of gluteus medius lateral adenosis and mild AP cam lesions in the femoral head/neck junction, and
(b) in relation to the lumbar spine: intervertebral disc space narrowing and a mild posterior broad-based bulge with moderate narrowing of the left neural foramen at L5/S1 with mild disc dessication and intervertebral space narrowing at L3/L4 and very minimal posterior broad-based bulge at L4/L5, summarised as “Spondylosis, worse at L5/S1 [with]... No nerve root impingement”.
[32] ARD, page 67.

Certificates of capacity

The evidence includes various Certificates of Capacity,[33] which stated a work injury on
8 September 2020 and that the applicant “Felt a sudden deep pulling sensation in L groin while climbing a ladder carrying a cylinder weighing 8kg”, including:
[33] ARD, pages 69 to 107; Reply, pages 1 to 24.
(a)    various certificates, commencing from 10 September 2020, in relation to a diagnosis of “Soft tissue injury – Sprain/Strain/ Tear – L Psoas Major/ Adductor Longus”, which certified that the applicant has no capacity for any work from
10 September 2020 to 28 October 2020,[34] capacity for some type of work from
26 October 2020 to 6 November 2020[35] and no capacity for any work to
6 November 2020;[36]
[34] ARD, pages 69-78; Reply, pages 1- 12.
[35] ARD, page 81; Reply, page 13.
[36] ARD, page 84; Reply, page 16.
(b)    a certificate dated 6 November 2020, in relation to a diagnosis of “Soft tissue injury – Strain (L thigh) +/- L Trochanteric Bursitis”, which certified that the applicant has no capacity for any work from 6 November 2020 to
20 November 2020;[37]
(c)    a certificate dated 30 November 2020, in relation to a diagnosis of “Strain (L thigh) [resolved] + Exacerbation of ? OA – L spine with neuropathy”, which certified that the applicant has capacity for some type of work from
20 November 2020 to 18 December 2020;[38]
(d)    certificates dated 15 December 2020,[39] 12 January 2021[40] and
9 February 2021,[41] in relation to a diagnosis of “L5-S1 posterior annulus tear + v. mild posterior disc bulge”, which certified that the applicant has no capacity for any type of work from 15 December 2020 to 9 March 2021;
(e)    a certificate dated 3 March 2021,[42] in relation to a diagnosis of “L5-S1 posterior annulus tear”, which certified that the applicant has no capacity for any type of work from 3 March 2021 to 31 March 2021 and noted that a factor affecting recovery was “a/w approval for ant interbody spacer at L5/S1”, and
(f)    a certificate dated 30 March 2021,[43] in relation to a diagnosis of “L5-S1 posterior annulus tear + L hip – Severe acetabular labral complex tear”, which certified that the applicant has no capacity for any type of work from 30 March 2021 to
[37] ARD, page 87; Reply, page 19.
[38] ARD, page 90; Reply, page 22.
[39] ARD, page 93.
[40] ARD, page 96.
[41] ARD, page 99.
[42] ARD, page 105.
[43] ARD, page 102.
21 April 2021 and noted that a factor affecting recovery was “a/w approval for ant interbody spacer at L5/S1”.

Assessments

An Initial and Workplace Assessment Report dated 19 November 2020[44] noted the various physical demands of the applicant’s work. It stated that the applicant had attempted a return to work but was unable to sustain his capacity due to increased lower back pain and hip pain and that the applicant has continued to experience pain in his lower back and left lateral hip.
[44] ARD, page 131.
A Home & Activities of Daily Living Assessment Report dated 17 February 2021[45] noted that the applicant stated he had reported left groin pain, a shooting/stabbing pain down his left leg and left sided lower back pain to his general practitioner on the day following the work injury. Further, the applicant stated that he was initially diagnosed with “groin strain” and more recently since an MRI in December 2020 he was diagnosed with annular tear and disc bulge in his lower back. The applicant stated that two cortisone injections did not provide relief and in fact increased his pain and that physiotherapy had also increased/exacerbated his back pain. The applicant reported no previous lower back injury and no other relevant medical or pre-existing conditions which impacted his current functioning.[46] The report stated that, based on the applicant’s diagnosis, prognosis, self-reported and observed functional tolerances, the applicant was assessed to be limited with the following arising from his work injury:
(a)    reduced standing tolerance of up to 10 minutes at a time with modified posture and all weight through his right lower limb;
(b)    reduced walking tolerance secondary to pain and particularly on uneven ground;
(c)    reduced lifting/carrying capacity of light items only;
(d)    reduced lower limb range of motion, resulting in a limited kneeling and squatting capacity;
(e)    reduced lumbar spine range of motion, resulting in a limited ability to stoop forwards;
(f)    reduced driving capacity of up to 20 – 30 minutes at a time including reported pain exacerbation, and
(g)    decreased endurance preventing engagement in daily tasks.
[45] ARD, page 112.
[46] ARD, page 114.

Financial records

The applicant’s evidence also included Icare Workers Insurance list of payments, payment summaries, the applicant’s tax returns and notice of assessment.

Independent medical evidence

Associate Professor Paul Miniter, orthopaedic surgeon

Associate Professor Miniter provided an independent medical opinion at the request of the insurer.
In a report dated 17 February 2021,[47] Associate Professor Miniter noted a history of injury, being that the applicant
“was carrying a small cylinder, this being about 8 kg in weight, and as he ascended the stairs, he remembers very clearly deep-seated discomfort in the left groin radiating down into the front of the left thigh.”[48]
He noted that the applicant’s pain has become worse as time has passed. [49]
[47] Reply, page 28.
[48] Reply, page 29.
[49] Reply, page 29.
Associate Professor Miniter noted that the applicant reported that he was unable to put on his shoes or socks or cut his toenails due to significant groin discomfort. He stated that “Back pain has become more troublesome as time has passed. It was not initially present”. The applicant was not comfortable sitting in a low chair or in a car for a long trip. The Applicant also reported other symptoms of hip pathology and marked nocturnal pain.[50]
[50] Reply, page 29-30.
On examination, Associate Professor Miniter noted that the applicant had a negative Trendelenberg sign on the right and a positive sign on the left. The range of lumbar spinal flexion was reduced but most of the applicant’s pain was in the left groin and thigh. In the supine position, the applicant has severe pain and when attempting to bend his knee was unable to bring his knee beyond 60 degrees of flexion, but demonstrated 110 degrees on the right. The applicant was unable to abduct in the flexed position on the left due to severe pain, but had 20 degrees of abduction on the right. The applicant was unable to lie prone, and had severe pain in the left hip when attempting to do so. Associate Professor Miniter considered that the applicant had an extreme and catastrophic presentation.[51]
[51] Reply, pages 30-31.
In relation to the applicant’s left hip, Associate Professor Miniter diagnosed pre-existing osteoarthritic disease in the left hip. Associate Professor Miniter stated that the CT scan appeared to show features of an impingement lesion associated with the shape of the femoral head, which was sufficient to explain the development of osteoarthritic change in the hip.[52]
[52] Reply, page 32.
Associate Professor Miniter stated that the mechanism of injury to the left hip “could easily have been simply ascending stairs... It is not likely that a significant injury has occurred simply ascending stairs but occasionally issues can arise in a similar fashion”.[53] He stated that the applicant’s work with the respondent “appears to be a contributing factor to his original presentation” but he has “doubts that it continues to contribute”.[54] Associate Professor Miniter stated that “Considering [the applicant’s] system complex, I would have regarded his injury on 8 September to have resolved by now”.[55]
[53] Reply, page 31.
[54] Reply, page 32.
[55] Reply, page 32.

In relation to the lumbar spine, Associate Professor Miniter opined that the applicant’s lower back was not involved in his original presentation and is unrelated to any work-related injury. Associate Professor Miniter stated that:
“He has at no stage had a twisting or flexion injury to his lumbar spine and if indeed his hip is not deemed to be the cause of this problem then the pathology in the lower back is definitely pre-existing and not caused by the work-related episode. You will see from the documentation, especially from the physiotherapist you [sic] saw him in the initial part of this matter at [sic] the back was never mentioned. He talks of flexor discomfort in the hip region.”[56]
[56] Reply, page 32.
Further, Associate Professor Miniter stated that “... there is no history of [the applicant] having injured his back. Simply ascending stairs does not cause lumbar spinal injury”.[57]
[57] Reply, page 32.
In a later report dated 8 March 2021,[58] Associate Professor Miniter stated that an MRI scan of the left hip showed significant features of osteoarthritis of the hip anteriorly, being a labral tear associated with a degenerative anterior labral lesion.[59] He stated that:
“... the original presenting features which were that of left-sided groin pain. The pain extended down the front of his leg. It is also important to recognise that simply ascending stairs is not an injury per se and could easily have happened at home.
In summary, this gentleman presents with onset of discomfort as he was simply walking up stairs. This could easily have occurred at home. He has clinical evidence of significant changes affecting the hip and in all likelihood this is his dominant problem ... an injection of local anaesthetic and corticosteroid should be given into the left hip. I do not regard this matter as a work-related issue.”[60]
[58] Reply, page 34.
[59] Reply, pages 34-35.
[60] Reply, page 35.
Associate Professor Miniter stated that an MRI scan of the lumbar spine showed no evidence of any compressive pathology although there was some narrowing of the left neural exit foramen. He stated that this showed spondylosis without evidence of nerve root compression, which was “a longstanding issue and not indicative of injury”.[61]
[61] Reply, page 35.
Associate Professor Miniter considered that “any type of surgical management” for the applicant’s lumbar spine was inappropriate because of poor outcomes with surgical management, that it was relatively soon after the onset of symptoms and that preferred treatment was by hip injection therapy and possibly hip replacement surgery in the longer term. Associate Professor Miniter stated that lumbar spinal fusion surgery was inappropriate unless the back pain is completely incapacitating in the longer term.[62]
[62] Reply, page 36.
Associate Professor Miniter stated that, in his opinion, the applicant’s insistence that he could not return to work is not supported by objective observation and he believes that the applicant could return to work in a light duties capacity after injection of the hip, although he has significant doubts about the longer term.[63]
[63] Reply, page 36.

Dr W. Patrick, general, vascular and trauma surgeon

Dr Patrick provided an independent medical opinion at the request of the applicant.
In a report dated 19 July 2022,[64] Dr Patrick noted a history of injury on 8 September 2020, being that the applicant:[65]
“... was on a ladder about 3-4 metres up and carrying a hydraulic sander in his left hand weighing between 15 and 20kg. He had to get up on top of a tank. He experienced severe groin pain at the top of the left thigh as he was inserting the sander into position. As he was coming back down the ladder he was feeling very unwell. He was experiencing quite severe lower back pain with pain radiating to the left groin and hip and top of left thigh. There was shooting pain at the lower back with pain radiating down to lateral left thigh and left sided pelvis posteriorly, and also the groin. He understands there were some ‘annular tears’ left sided. There were severe shooting pains persisting in the back region.”
[64] ARD, page 28.
[65] ARD, pages 28 – 29.
Although Dr Patrick noted that the applicant reported a history that the item he held in his left hand at the time of injury was between 15 and 20kg, Dr Patrick also noted that the applicant’s statement stated that the item weighed approximately 8 to 12kg.[66]
[66] ARD, pages 28, 29 and 31.
Dr Patrick noted that the applicant reported ongoing constant pain in his lower back, left upper buttock and sacro-iliac joint region. The applicant also reported current symptoms including feeling of electric sensations radiating down to his left thigh, left hip pain and stiffness and pain radiating laterally into the right leg.[67]
[67] ARD, page 29.
On examination, Dr Patrick noted that at the cervical spine there was just some mild dysmetria with active flexion cervical spine being 80% of expected, extension 70%, and lateral rotation to the right 70% and to the left 60% of expected. There was marked muscular guarding evident at the lumbar spine in the paravertebral musculature, particularly at the left side lower back with complaint of pain into the left upper buttock. The applicant walked abnormally with a clear limp, favouring (sparing) the left lower extremity. Dr Patrick stated that the applicant presented as straightforward, without exaggeration or embellishment. [68]
[68] ARD, page 30.
Dr Patrick diagnosed two injuries sustained by the applicant on 8 September 2020: firstly, to the applicant’s lumbar spine with annular tear at L5/S1 and a likely small fragment behind the S1 nerve root; and, secondly, to the applicant’s left hip, being a likely major aggravation to the left hip which was previously largely asymptomatic. Dr Patrick stated that the applicant probably also had a left-sided lateral meralgia paraesthetica with left-sided lateral femoral cutaneous nerve.[69]
[69] ARD, page 33.
Dr Patrick stated that in his opinion, the applicant’s work was “the main and substantial contributing factor to the injuries that the applicant sustained on 8 September 2020”.[70]
Dr Patrick stated that the applicant’s injuries were “related strongly to the nature and conditions of his work with” the respondent. Dr Patrick stated
“I do not believe that his frank incident of workplace injury should necessarily be termed a disease or disease process but rather frank workplace injuries with some component of some degree of disease process, bearing in mind he has been working for very many years carrying out very physical work.”
Dr Patrick noted that there is “no relevant significant pre-existing condition apart from any deemed aggravation, acceleration and/or exacerbated any pre-existing condition/disease” and “no record of significant workplace injuries with his previous employer”.[71] Dr Patrick stated that
“it can be said to some extent that [the applicant’s] injuries are a disease and/or and aggravation, acceleration, and/or exacerbation of a pre-existing condition or disease. Nonetheless, I do believe that his employment is the main contributing factor to his relevant injuries.”[72]
[70] ARD, page 35.
[71] ARD, page 35.
[72] ARD, page 35.
Dr Patrick stated that he believed that anterior lumbar interbody spacer surgery at L5/S1 surgery proposed by Dr Coughlan was reasonably necessary. Dr Patrick also stated that later hip surgery may also be appropriate.[73]
[73] ARD, page 34.
Dr Patrick stated that, in his opinion, the applicant’s injuries would result in a permanent problem without the surgical intervention proposed by Dr Coughlan. Dr Patrick stated that he believed that the applicant has reached maximum medical improvement at present, there being no definite surgeries to date notwithstanding such surgeries were necessary.[74]
Dr Patrick stated that
“it is probably likely that [the applicant] does not have any ‘real chance’ to return to regular employment, based on his education, training or experience, day in and day out, without requiring significant time off work because of aggravations or flare ups, or his inability to work consecutive days.”[75]
[74] ARD, pages 34-35.
[75] ARD, page 35.
In a further report also dated 19 July 2022, Dr Patrick stated that, in accordance with American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5^th edition (AMA 5), he assessed that the applicant has 24% total WPI, resulting entirely from injuries sustained on 8 September 2020, calculated on the basis of 11% WPI lumbar spine, 4% right lower extremity (hip) and 11% left lower extremity.[76]
[76] ARD, pages 36-37.

Submissions

Counsel’s submissions were recorded and have been considered in full.

Applicant’s submissions

Mr Goodridge’s submissions on behalf of the applicant may be summarised as follows:
(a)    the applicant does not press any claim for compensation in relation to the applicant’s right hip and accepts that there should be an award for the respondent in relation to the right hip;
(b)    the applicant’s case is that the applicant has dual pathology, as diagnosed by
Dr Patrick and Dr Coughlan;
(c)    the history of injury recorded by Dr Patrick should be accepted;
(d)    the opinions of Dr Patrick and Dr Coughlan should be accepted and preferred over the opinion of Associate Professor Miniter, which was based on an incorrect history of injury and unreliable;
(e)    having regard to the evidence as a whole, the Commission should be satisfied, in relation to the lumbar spine, that the applicant sustained injury, arising out of or in the course of employment and his employment was a substantial contributing factor to the injury, and/or that the applicant contracted a disease or sustained aggravation, acceleration, exacerbation or deterioration of disease, arising out of or in the course of employment and his employment was the main contributing factor to the disease or the aggravation, acceleration, exacerbation or deterioration of disease;
(f)    having regard to the evidence as a whole in relation to the left hip and the lumbar spine, the Commission should be satisfied that the applicant has total incapacity for work resulting from an injury;
(g)    having regard to the evidence, the Commission should be satisfied that the proposed medical and related treatment is reasonably necessary as a result of an injury;
(h)    if the claim for medical expenses is successful, the applicant can undertake surgery and the matter should not be presently referred to a medical assessor for assessment of WPI at this time,
(i)    however, if the claim for medical expenses is unsuccessful, the matter should now be referred to a medical assessor for assessment of WPI in relation to determination of the issue of permanent impairment compensation.

Respondent’s submissions

Mr Grant’s submissions on behalf of the applicant may be summarised as follows:
(a)    the respondent agrees that PIAWE is $1,401, indexed;
(b)    the opinion of Associate Professor Miniter should be accepted and preferred over the opinions of Dr Coughlan and Dr Patrick, whose evidence was less objective and credible;
(c)    the evidence does not support a finding and the Commission should not accept that the applicant sustained injury to his lumbar spine, arising out of or in the course of employment to which his employment was a substantial contributing factor to the injury, or that the applicant contracted a disease or sustained aggravation, acceleration, exacerbation or deterioration of disease, arising out of or in the course of employment and his employment was the main contributing factor to the disease or the aggravation, acceleration, exacerbation or deterioration of disease;
(d)    there is no recent evidence in support of the request for surgery and having regard to the evidence, particularly the evidence of Associate Professor Miniter, the Commission should not accept that the proposed medical and related treatment is reasonably necessary as a result of an injury;
(e)    there is little or no evidence of recent or ongoing capacity and the Commission should not be satisfied that the applicant has total incapacity for work resulting from an injury, and
(f)    the evidence of Dr Patrick in relation to assessment of WPI is unreliable and should not be accepted.

Applicant’s submissions in reply

Mr Goodridge’s submissions in reply on behalf of the applicant may be summarised as follows:
(a)    Dr Patrick’s assessment of WPI, given on the basis that there is no current surgery, is reliable and should be accepted;
(b)    the respondent’s submissions in relation to injury to the lumbar spine is not supported by the evidence as a whole and should not be accepted, and
(c)    the applicant agrees that PIAWE is $1,401, indexed.

FINDINGS AND REASONS

In respect of his lumbar spine, did the applicant sustain injury arising out of or in the course of his employment, to which his employment was a substantial contributing factor and/or contract a disease or sustain aggravation, acceleration, exacerbation or deterioration of a disease, arising out of or in the course of employment and his employment was the main contributing factor to the disease or the aggravation, acceleration, exacerbation or deterioration of the disease, pursuant to ss 4(a) and 9A, 4(b)(i) and (b)(ii) of the 1987 Act?

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer.
The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 9A of the 1987 Act states:
“(1)    No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)    The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f)the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(g)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(h)the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)     This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
In AV v AW,[77] Snell DP considered the expression, “main contributing factor” in s 4(b)(ii) and observed:
“The following may be taken from the above:
(a)The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b)The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c)In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
[77] [2020] NSWWCCPD 9.
The expression, “aggravation, acceleration, exacerbation or deterioration” of a disease for the purposes of s 4(b)(ii) of the 1987 Act was discussed by Windeyer J in Federal Broom Co Pty Ltd v Semlitch[78] (Semlitch):
“The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man's sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated.”[79]
[78] [1964] HCA 34; 110 CLR 626.
[79] Semlitch, at 640.
Justice Kitto in the same case found:
“Moffitt J. was right, I think, in saying: ‘There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism’. Accordingly if salt be applied to an open wound, making the would no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound.”[80]
[80] Semlitch, at 635.
A commonsense evaluation of the causal chain is required. The legal test of causation was set out by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[81] (Kooragang), where Kirby P (as his Honour then was) stated:
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate …
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”[82]
[81] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[82] Kooragang, at [461] (Sheller and Powell JJA agreeing).
His Honour stated at [463] – [464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”

Although the High Court in Comcare v Martin[83] raised some concerns about the common-sense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the common-sense approach still has place in the application of the legislation to the present case.
[83] [2016] HCA 43, [42].
Principles regarding the discharge of the onus of proof were considered by President Keating in Department of Education & Training v Ireland[84] (Ireland). In order for the applicant to discharge the onus that he sustained the alleged injury, I “must feel an actual persuasion of the existence of that fact”.
[84] [2008] NSWWCCPD 134, [89], applying Nguyen v Cosmopolitan Homes [2008] NSWCA 246, per McDougall (McColl and Bell JJA agreeing) at [44]-[48].
The respondent accepts that the applicant injured his left hip/groin at work on
8 September 2020.
The history of injury which formed the basis of Associate Professor Miniter’s opinion that the applicant did not sustain any work-related lumbar spine injury is that: the applicant was carrying a small cylinder about 8kg in weight and, as he ascended “stairs”, he experienced a deep-seated discomfort in the left groin radiating down into the front of the left thigh and the pain became worse as time passed. Associate Professor Miniter stated that back pain was not initially present but has become more troublesome as time has passed. Associate Professor Miniter stated that there was no history of the applicant having injured his back and “at no stage had a twisting or flexion injury to his lumbar spine”, noting that the applicant never initially mentioned his back and only described flexor discomfort in the hip region. Associate Professor Miniter also stated that “Simply ascending stairs does not cause lumbar spinal injury”.[85] It appears clear from Associate Professor Miniter’s evidence that his opinion is based on his understanding that the asserted mechanism of injury was “simply ascending stairs”, did not involve any twisting injury and that the applicant did not experience any contemporaneous back symptoms.
[85] Reply, page 32.
In contrast, Dr Patrick’s opinion that the applicant sustained frank lumbar spine injuries with some component of some degree of disease process and that the applicant’s employment was the main contributing factor to the injuries, appears to be based on a somewhat different understanding of the mechanism of injury and the contemporaneous symptoms experienced by the applicant. Dr Patrick recorded that the applicant was ascending a ladder and carrying a hydraulic sander in his left hand weighing between 15 to 20kg and that he “experienced severe groin pain at the top of the left thigh as he was inserting the sander into position”.
Dr Patrick recorded that the applicant experienced quite severe lower back pain with pain radiating to the left groin and hip and top of left thigh. There was shooting pain at the lower back with pain radiating down to lateral left thigh and left sided pelvis posteriorly and also the groin. The applicant experienced ongoing severe shooting pain in his back region. It is relevant that, although Dr Patrick did record that the item held in the applicant’s left hand weighed between 15 and 20kg, Dr Patrick also recorded that the applicant’s statement stated that the item weighed approximately 8 to 12kg.
The applicant disputes, as inaccurate, the history recorded by Associate Professor Miniter that he was simply ascending stairs.
The applicant’s evidence in relation to the mechanism of injury is that, on 8 September 2020, whilst carrying an item in his left hand which weighed approximately 8 to 12kg, the applicant was ascending an A-frame ladder without handles by reaching his right hand up and grabbing the frame of the ladder to steady himself, then stepping his feet up until both feet were on the same step. The applicant’s evidence is that, as he proceeded up the ladder, he was twisting with the weight of the item hanging down by his side in his left arm. The applicant felt an immediate sensation of a pulling in his left groin area together with a sharp shooting pain. The applicant was immediately concerned about the pain. After he got off the ladder, the applicant noticed that, with movement, he had a sharp, shooting intermittent pain going around the outside of his left thigh. The sharp, shooting pain stopped if the applicant was not moving around however the pain on the inner side of his groin remained constant.
The applicant’s evidence is that when he attended the respondent’s doctor, Dr Mohammad, on 10 September 2020, he described the mechanism of injury and said that he had intermittent shooting pain on the outside of his left thigh, although the pain was not currently present. The applicant said that he told Mr Mohammad that his back was a bit stiff but he was far more concerned about the pain in his leg.
Dr Mohammad’s clinical notes in relation to the applicant’s attendance on
10 September 2020 recorded that the applicant reported that he felt a sudden deep pulling sensation in his left groin while climbing a ladder carrying a cylinder weighing 8kg and that the pain got worse later that day. Dr Mohammad noted that examination showed an antalgic gait and a point of tenderness over the psoas major/ adductor longus. Dr Mohammad’s clinical notes on 15 September 2020 recorded that the applicant then reported continuing symptoms.
Commencing from 10 September 2020, various certificates of capacity were issued in relation to the work injury on 8 September 2020 which recorded the history of injury as the applicant “felt a deep pulling sensation” in his left groin while childing a ladder carrying a cylinder weighing 8kg. The certificates of capacity referenced lumbar spine injury from
30 November 2020.
Whilst the history of injury recorded in Dr Mohammad’s notes of 10 September 2020 and
15 September 2020 and the certificates of capacity is generally consistent with the history of injury given in the applicant’s evidence, there are some significant omissions. Firstly,
Dr Mohammad noted that the item carried by the applicant was a cylinder weighing 8kg, whereas the applicant describes it in his evidence as being between 8kg to 12kg. Secondly, Dr Mohammad did not record the additional detail, which is described in the applicant’s evidence, that he was twisting his body with the weight of the item handing down by his side in his left arm as he reached his right hand up and grabbed the frame of the ladder to steady himself, then stepped his feet up until both feet were on the same step. Thirdly,
Dr Mohammad did not record that the applicant reported intermittent shooting pain on his left thigh and back stiffness. The applicant asserts that Dr Mohammad’s clinical notes are incomplete to the extent that they do not include the additional detail which he reported to
Dr Mohammad at the time of consultation.
The applicant’s wife stated that the applicant complained to her about pain on the inner left groin, some lower back stiffness and an intermittent sharp shooting sensation down the outside of his left thigh. She corroborated the applicant’s evidence that he reported intermittent shooting pain on his left thigh and back stiffness to Dr Mohammad.
A CT Pelvis scan on 22 September 2020 showed evidence of bilateral hip and S1 joint arthritis, more marked on the left side.
Dr Liu’s clinical notes on 23 September 2020 reported that the applicant then reported left hip pain shooting down his thigh, which was worsened by movement and weightbearing. Dr Liu also noted that the applicant experienced sharp, sudden, possibly electric shock with no paraesthesia. Dr Liu formed an impression of nonspecific lower back injury or left thigh muscle sprain. Dr Liu’s physiotherapy referral of the same day also stated that on examination the applicant had pain exacerbated by movement as well as mild midline pain and left paraspinal pain around the L4/5 region.
Subsequent clinical notes recorded that the applicant reported ongoing pain in his left hip adductors and flexors, recurrent neuropathic pain on external rotation of the hip joint and lower back pain.
Dr Mohammad’s report dated 3 November 2020 recorded that the applicant reported a flare up of his symptoms after sitting and standing and undertaking a trial of restricted work duties.
Physiotherapist records noted that the applicant initially presented with left side low back pain and shooting/stabbing pain in his left thigh after carrying weight up a ladder and that the applicant reported increasing pain with external rotation, walking and weightbearing.
An MRI lumbar spine on 11 December 2020 showed a L5/S1 posterior annulus tear and very mild posterior disc bulge, no central canal stenosis or nerve root impingement in the lumbar spine and mild left L4/5 and L5/S1 facet arthrosis.
Dr Mohammad’s report dated 11 December 2020 stated that the applicant continued to have neuropathic pain over his left thigh. Dr Mohammad’s diagnosis was that the left thigh sprain/strain had fully resolved however the applicant had a L5/S1 posterior annulus tear and mild posterior disc bulge which was causing radiating neuropathic pain over the left thigh.
On 12 January 2021, Dr Mohammad noted that the applicant reported ongoing and unchanged symptoms and that a guided cortisone injection was not effective. In a referral letter to Dr Coughlan dated 12 January 2021, Dr Mohammad stated that the applicant has been having severe back pain radiating down the left leg. He stated that the applicant presents with L5/S1 posterior annulus tear with very mild posterior disc bulge post work injury in September 2020.
On 9 February 2021, Dr Mohammad noted that the applicant reported ongoing symptoms and new symptoms of dull ache with a slight burning sensation in the left gluteal region.
An MRI lumbar spine on 24 February 2021 showed intervertebral disc space narrowing and a mild posterior broad-based bulge with moderate narrowing of the left neural foramen at L5/S1 with mild disc dessication and intervertebral space narrowing at L3/L4 and very minimal posterior broad-based bulge at L4/5, summarised as spondylosis, worse at L5/S1 with no nerve root impingement. An MRI left hip showed severe acetabular labral complex tear in the left hip.
On 30 March 2021, Dr Mohammad noted that the applicant reported worsening of his lower back pain and neuropathic pain down the left leg and that a recent MRI showed severe acetabular labral complex tear of the left hip.
On 9 November 2021, Dr Coughlan recorded a history of injury being that the applicant had almost immediate onset of low back pain and left leg pain when lifting a weight as he climbed a ladder. Dr Coughlan opined that the applicant had suffered an acute injury, and the applicant’s work was the main and substantial contributing factor to the injury. In that report and later reports dated 13 February 2021 and 27 February 2021, Dr Coughlan noted that the applicant continued to have significant ongoing axial back pain and left sided hip pain despite conservative treatment. He diagnosed dual pathology, being an annular tear at L5/S1 with possibly a small fragment behind the S1 nerve root and some early retrolisthesis at L5/S1 in addition to significant changes in the applicant’s left hip.
Apart from Associate Professor Miniter’s opinion which refers to “stairs”, there is no evidence which contradicts the applicant’s consistent evidence that on 8 September 2020 he was climbing a ladder at work and holding an item in his left hand. Most consistently, it is reported that the applicant described the item as weighing at least 8kg. The applicant’s evidence describes how he ascended the ladder by reaching upwards to grab it with his right hand before stepping up, whilst maintaining grasp of the item in his left hand. The applicant’s description of the manner of ascent seems logical. I consider that it is likely in those circumstances that the applicant would have engaged in stretching and twisting motions as he ascended the ladder whilst continuing to carry and lift the weighty item in his left hand.
Notwithstanding that Dr Mohammad did not record that the applicant reported contemporaneous back pain and back stiffness in addition to pain radiating to the left groin and hip and top of left thigh, considering the evidence as a whole, I prefer and accept the applicant’s evidence in that regard. I accept that the applicant did experience contemporaneous low back pain and stiffness which was ongoing.
On that basis, I prefer and accept the history of injury relied upon by Dr Patrick. I consider that Associate Professor Miniter did not give due regard to the full history of injury and the contemporaneous symptoms experienced by the applicant.
Associate Professor Miniter’s opinion focused primarily on the hip injury and did not provide significant and reasoned explanation for the applicant’s reduced lumbar spinal flexion and reported lumbar pain.
I note that there is no evidence of previous lumbar spine symptoms. There is no evidence of any other causative factor of the development and increase in the applicant’s lumbar spine symptomology.
Having regard to the evidence as a whole, I consider that the opinions and diagnosis of
Dr Coughlan and Dr Patrick do provide a sound, logical and likely explanation for the applicant’s lumbar spine symptoms.
The Court of Appeal in Nguyen v Cosmopolitan Homes[86] held that a tribunal of fact must be actually persuaded of the occurrence or existence of the fact before it can be found, and stated:
“(1)    A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)     Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)     Where circumstantial evidence is relied upon, it is not in general necessary that all reasonably hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found, and
(4)     A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[86] [2008] NSWC 246.
This is not a case where the evidence is clear cut. The medico-legal evidence is also somewhat problematic.
Having carefully considered the evidence as a whole and for the reasons given above, I am however satisfied on the balance of probabilities that the applicant sustained injury to his lumbar spine arising out of and in the course of his employment with the respondent pursuant to s 4(a) of the 1987 Act and his employment was a substantial contributing factor pursuant to s 9A(1) of the 1987 Act. Further, I am satisfied that the applicant sustained injury to his lumbar spine in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease process to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act.

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

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

Is the proposed treatment medical or related treatment?

The applicant seeks compensation for expenses of and related to treatment proposed by Dr Coughlan in a letter dated 1 March 2021, being L5/S1 anterior lumbar interbody fusion surgery.
The surgery is clearly “medical or related treatment (other than domestic assistance)” within the meaning of s 60(1)(a) of the 1987 Act.

Is the proposed treatment reasonably necessary?

In Diab v NRMA Ltd,[87] Roche DP, referring to the decision in Rose v Health Commission (NSW),[88] set out the test for determining if medical treatment is reasonably necessary as a result of a work injury:[89]
“The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC2; (1986) 2 NSWCCR 32 (Rose) where his Honour said, at
48A-C:
‘3.Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and tis place in the usual medical armoury of treatments for the particular condition’.”
[87] [2014] NSWWCCPD 72.
[88] [1986] NSWCC2; (1986) 2 NSWCCR 32.
[89] [2014] NSWWCCPD 72, at [76].
Roche DP[90] also noted that the Commission has generally referred to and applied the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service:[91]
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[90] [2014] NSWWCCPD 72, at [78].
[91] [1997] NSWCC 1; 14 NSWCCR 233.
Roche DP stated:[92]
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply ...”
[92] [2014] NSWWCCPD 72, at [86].
Roche DP found:[93]
[93] [2014] NSWWCCPD 72, at [88]-[89].
“In the context of s 60 the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a)the appropriateness of the particular treatment;
(b)the availability of alternative treatment, and its potential effectiveness;
(c)the cost of the treatment;
(d)the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”

Appropriateness

Having regard to the evidence of the applicant in the context of the medical evidence, particularly that of the treating practitioners, I accept that the applicant has significant ongoing lumbar spine symptomatology.
Both Dr Coughlan and Dr Patrick opine that the surgery is an appropriate treatment to address the applicant’s lumbar spine symptomatology in the context of the diagnosis of an annular tear at L5/S1 and some early retrolisthesis at L5/S1.

Availability of alternative treatment and its effectiveness

It is clear from the evidence that various conservative treatment of the applicant’s lumbar spine symptomatology has not provided ongoing relief.
There is no evidence of any other significant alternative treatment which would likely provide effective relief in respect of his lumbar spine condition.

Cost of the treatment

No issue has been taken in relation to estimated surgery cost given by Dr Coughlan.[94]
[94] ARD, page 63.

Actual or potential effectiveness of the treatment

Dr Coughlan recommended the surgery to address the applicant’s lumbar spine diagnosis and symptomatology. Dr Patrick opined that if the injuries were an aggravation of a pre-existing condition, the applicant’s injuries would result in a permanent problem without the surgery proposed by Dr Coughlan and possibly also later hip surgery.

Acceptance by medical experts of the treatment

Associate Professor Miniter considered that “any type of surgical management” for the applicant’s lumbar spine was inappropriate because of poor outcomes with surgical management, that it was relatively soon after the onset of symptoms and that preferred treatment was by hip injection therapy and possibly hip replacement surgery in the longer term. Associate Professor Miniter stated that lumbar spinal fusion surgery was inappropriate unless the back pain is completely incapacitating in the longer term. Associate Professor Miniter’s opinion in relation to the surgery appears to have been based, at least to a significant degree, on his opinion that the applicant’s symptoms most likely related to his hip injury.
For the reasons set out above, I am satisfied that the applicant did sustain injury to his lumbar spine arising out of and in the course of his employment with the respondent.
I note that the medical evidence in relation to the surgery is somewhat dated and not recent. However, Dr Patrick gave evidence that the applicant’s lumbar spine condition would result in a permanent problem in the absence of surgery. There is no evidence that the applicant’s condition has significantly changed since Dr Patrick’s opinion.
Having regard to the evidence as a whole, I prefer and accept the evidence of Dr Coughlan and Dr Patrick.
Having considered the evidence in the context of the criteria referred to in Diab and Rose, I am satisfied that it is reasonably necessary that the applicant undergo the surgery.

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

In Murphy v Allity Management Services Pty Ltd[95] Roche DP stated at [57] and [58]:

“… a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]-[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716)”.
[95] [2015] NSWWCCPD 49 at [57].

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

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

Section 33 of the 1987 Act states:
“33 Weekly compensation during total or partial incapacity for work
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
Note—
Chapter 3 of the 1998 Act (Workplace injury management) provides that, if a worker fails unreasonably to comply with a requirement of that Chapter after being requested to do so by an insurer, the worker has no entitlement to weekly payments of compensation for the period that the failure continues.”
Section 36 of the 1987 Act states:
“36    Weekly payments during first entitlement period (first 13 weeks)
(1)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates—
(a)95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.”
Section 37 of the 1987 Act states:
“37   Weekly payments during second entitlement period (weeks 14–130)
(1)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3)    The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a)80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.”
The applicant’s uncontested evidence is that he was always engaged in work of a physical nature prior to the injury on 8 September 2020.
An Initial and Workplace Assessment Report dated 19 November 2020[96] noted the various physical demands of the applicant’s work. It stated that the applicant had attempted a return to work but was unable to sustain his capacity due to increased lower back pain and hip pain and that the applicant has continued to experience pain in his lower back and left lateral hip.
[96] ARD, page 131.
A Home & Activities of Daily Living Assessment Report dated 17 February 2021[97] noted that two cortisone injections did not provide relief and in fact increased the applicant’s pain and that physiotherapy had also increased/exacerbated his back pain. The report stated that, based on the applicant’s diagnosis, prognosis, self-reported and observed functional tolerances, the applicant was assessed to have limited functional capacity as follows:
(a)    reduced standing tolerance of up to 10 minutes at a time with modified posture and all weight through his right lower limb;
(b)    reduced walking tolerance secondary to pain and particularly on uneven ground;
(c)    reduced lifting/carrying capacity of light items only;
(d)    reduced lower limb range of motion, resulting in a limited kneeling and squatting capacity;
(e)    reduced lumbar spine range of motion, resulting in a limited ability to stoop forwards;
(f)    reduced driving capacity of up to 20 – 30 minutes at a time including reported pain exacerbation, and
(g)    decreased endurance preventing engagement in daily tasks.
[97] ARD, page 112.
The various Certificates of Capacity certify that the applicant had:
(a)    no capacity for work for any work from 10 September 2020 to 28 October 2020;
(b)    some capacity for work from 26 October 2020 to 6 November 2020;
(c)    no capacity for work from 6 November 2020 to 20 November 2020;
(d)    some capacity for work from 20 November 2020 to 18 December 2020;
(e)    no capacity for work from 15 December 2020 to 31 March 2021.
It is clear that various work trials were unsuccessful because of ongoing symptoms.
The Certificates of Capacity dated 3 March 2021 and 30 March 2021 noted that a factor affecting recovery was approval for the surgery.
The evidence in relation to incapacity is somewhat dated. There are no Certificates of Capacity in respect of the ongoing period from 13 April 2021.
The applicant stated that he continues to experience significant ongoing pain and disability, which detrimentally restricts and affects his sleep and daily living. Generally, he cannot walk for more than 10 to 20 minutes without increased pain, he can rarely stand for more than 10 to 15 minutes before he needs to sit down and he can only sit for 20 to 30 minutes before he stiffens and becomes sore, needing to move again. The applicant also requires to lay down for between 20 to 30 minutes at least once a day to try to ease the pain. He cannot undertake any heavy lifting or carrying and cannot do anything which requires repetitive bending, twisting or turning. He has difficulty driving or travelling in a vehicle for any prolonged period of time.
The applicant stated that he is now unable to undertake any physical work. Further, he is unable to engage in any form of office work, paperwork or computer work because he has dyslexia.
As noted above, Dr Patrick gave evidence that the applicant’s lumbar spine condition would result in a permanent problem in the absence of surgery. There is no evidence that the applicant’s condition has significantly changed since Dr Patrick’s opinion.
Notwithstanding that there is no recent Certificate of Capacity which certifies the applicant’s incapacity for the relevant period, having regard to the evidence as a whole, I am satisfied that it supports a finding that the applicant’s previous incapacity continued during the relevant period and is currently ongoing.
Accordingly, I find that the applicant has total incapacity for work resulting from an injury in respect of the period from 13 April 2021 to 7 March 2023.

The award to be entered in respect of weekly compensation

Wage schedules have been filed by the parties. The parties agree that PIAWE is $1,401, indexed.
The applicant was paid 31 weeks of weekly payments up to and including 12 April 2021.
The s 37(1) weekly compensation period (the second entitlement period, being weeks 14 to 130) in respect of the applicant ceases as of 7 March 2023.
It is appropriate to make an award for weekly compensation pursuant to s 37(1) of the 1987 Act at the rate of 80% of PIAWE, calculated as follows:
PIAWE x 80% = $1,120.80
On that basis, an award is made in favour of the applicant for payment of weekly compensation pursuant to s 37(1) of the 1987 Act in the sum of $1,120.80 per week indexed from 13 April 2021 to 7 March 2023.

Is the applicant entitled to permanent impairment compensation, pursuant to s 66 of the 1987 Act?

Section 66(1) of the 1987 Act states:
“66 Entitlement to compensation for permanent impairment
(1)A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note—
No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.”
Paragraph 1.15 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (SIRA Guidelines) states:
“Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement. This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.”

Having regard to the above determination in relation to the claim for s 60 expenses relevant to the surgery, there is a real prospect that the applicant’s condition may substantially change over the next 12 months and there is no basis to find that the applicant’s condition has stabilised and attained maximum medical improvement.
Counsel for the applicant conceded that, if the claim for medical expenses is successful, the applicant would undergo the surgery and it is not appropriate to refer the matter to a medical assessor for assessment of WPI at this time.
Accordingly, there is no basis for assessment of degree of permanent impairment at this time. Subject to the outcome of the surgery, it may be appropriate to determine that issue at a later time.
On that basis, I dismiss the application for compensation for permanent impairment compensation pursuant to s 66 of the 1987 Act.

AMENDMENT TO THE CERTIFICATE OF DETERMINATION AND REASONS

The Certificate of Determination and Statement of Reasons was originally issued on 5 April 2023. By Application for Reconsideration dated 19 April 2023, the respondent sought amendment of the Certificate of Determination to correct errors, with effect that:
(a)    the determination and the order are to consistently state that the respondent is to pay the costs of and incidental to L5/S1 anterior lumbar interbody fusion surgery in accordance with s 60 of the 1987 Act;
(b)    the weekly compensation pursuant to s 37(1) of the 1987 Act is to be calculated on the basis of 80% of PIAWE of $1,401, being $1,120.80 per week;
(c)    the weekly compensation pursuant to s 37(1) of the 1987 Act is payable in respect of the period from 13 April 2021 to 7 March 2023, and
(d)    an award is made for the respondent with respect to the right hip.
By notice dated 10 May 2023, the applicant opposed the respondent’s request for reconsideration. The applicant:
(a)    stated that the order should be that the respondent pay the costs of and incidental to the surgery proposed by Dr Coughlan set out at page 63 of the ARD;
(b)    agreed that the weekly compensation pursuant to s 37(1) of the 1987 Act is to be calculated on the basis of 80% of PIAWE of $1,401, as indexed, being $1,120.80 per week;
(c)    agreed that the Commission has no power to award any compensation pursuant to s 37(1) of the 1987 Act beyond 7 March 2023;
(d)    stated that the applicant has now made a claim for compensation pursuant to s 38 of the 1987 Act and requested that the matter be listed for conference for consideration of an entry of an award pursuant to s 38 of the 1987 Act;
(e)    agreed that there should be an award for the respondent in respect of the right hip.
I note that the parties are effectively substantially in agreement as to errors which require to be corrected and I am satisfied that those errors do require correction.
Having considered the parties submissions in relation to the request for reconsideration, I am satisfied that it is appropriate in the interests of justice to amend the Certificate of Determination and Statement of Reasons to correct errors and clarify the position, in a manner which is effectively substantially agreed between the parties. For convenience, the amendments have been identified by underlining.
I do not consider that it is appropriate for me to relist the matter for further conference to deal with a claim for weekly compensation pursuant to s 38 of the 1987 Act as requested by the applicant nor for me to make any order in that regard. An application for weekly compensation pursuant to s 38 of the 1987 Act was not the subject of these proceedings. The applicant would be required to commence separate proceedings before the Commission in that regard if appropriate.

SUMMARY

On that basis, I determine that:
(a)    the applicant sustained injury to his lumbar spine on 8 September 2020 arising out of and in the course of his employment with the respondent pursuant to s 4(a) of the 1987 Act and his employment was a substantial contributing factor pursuant to s 9A(1) of the 1987 Act;
(b)    the applicant sustained injury to his lumbar spine on 8 September 2020 in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease process to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act;
(c)    the treatment proposed by Dr Coughlan in a letter dated 1 March 2021, being L5/S1 anterior lumbar interbody fusion surgery, is reasonably necessary as a result of injury on 8 September 2020;
(d)    the applicant was and remained totally incapacitated for work as a result of the injury to his left hip and lumbar spine from 13 April 2021 to 7 March 2023, and
(e)    the applicant’s condition has not stabilised and attained maximum medical improvement and accordingly it is not appropriate to refer the matter to a medical assessor for assessment of whole person impairment and determination of permanent impairment compensation pursuant to s 66 of the 1987 Act at this time.
It is appropriate to make an award for weekly compensation pursuant to s 37(1) of the 1987 Act at the rate of 80% of PIAWE in the sum of $1,120.80 per week indexed from 13 April 2021 to 7 March 2023.
Accordingly, the Commission orders:
(a)    the respondent to pay the costs of and incidental to L5/S1 anterior lumbar interbody fusion surgery proposed by Dr Coughlan in a letter dated 1 March 2021 in accordance with s 60 of the 1987 Act;
(b)    the respondent to pay the applicant weekly compensation in the amount of $1,120.80 per week indexed from 13 April 2021 to 7 March 2023, pursuant to s 37(1) of the 1987 Act;
(c)    the application for permanent impairment compensation pursuant to s 66 of the 1987 Act is dismissed, and
(d)    award for the respondent with regard to injury to the right hip.

[2023] NSWPIC 224

5 April 2023