General Education Castle Hill Pty Ltd v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	General Education Castle Hill Pty Ltd v Workers Compensation Nominal Insurer (iCare) & Anor [2024] NSWPIC 498
APPLICANT:	General Education Caste Hill Pty Ltd
FIRST RESPONDENT:	Workers Compensation Nominal Insurer (iCare)
SECOND RESPONDENT:	Elham Mirmoeini
MEMBER:	Rachel Homan
DATE OF DECISION:	9 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; application seeking orders that the applicant was not liable to reimburse the Insurance Fund an amount specified in a notice pursuant to section 145(1); sections 4 and 9A meaning of ‘injury’; extent of incapacity resulting from injury; whether treatment expenses reasonably necessary; Held – aspects of the injured worker’s evidence not credible; the injured worker had current work capacity for part of the period in which she was paid on the basis of no current work capacity; amount the applicant is required to reimburse the Insurance Fund reduced; the medical and related treatment expenses were reasonably necessary as a result of injury.
DETERMINATIONS MADE:	The Commission determines: 1. The Commission declines to make the orders sought by the applicant. 2. Pursuant to s 145(4) of the Workers Compensation Act 1987, the applicant is to reimburse the first respondent the amount specified in the s 145(1) notice dated 1 September 2023 less payments made as weekly compensation for the period 30 March 2023 to 30 April 2023.

STATEMENT OF REASONS

BACKGROUND

These proceedings concern an application lodged by General Education Castle Hill Pty Ltd (the applicant) seeking orders setting aside a notice issued under issued under s 145(1) of the Workers Compensation Act 1987 (the 1987 Act) by the Workers Compensation Nominal Insurer (the first respondent).
The notice in question was issued on 1 September 2023 and sought reimbursement of the amount of $24,022.60, being an amount paid as compensation to Elham Mirmoeini (the second respondent) in respect of an injury to her lower back on 29 March 2023.
Particulars of the compensation paid annexed to the s 145(1) notice indicated that an amount of $19,845 had been paid as weekly compensation for the period from 30 March 2023 to
[1] The s 145(1) notice attached to the First Respondent’s Reply is an earlier version dated 7 August 2023 and only shows payments up until 2 August 2023.
30 August 2023.[1] In addition, $4,177.60 had been paid in treatment expenses.

ISSUES FOR DETERMINATION

The parties agreed that the following issues were in dispute and required determination:
(a) whether the applicant was liable to reimburse the first respondent the amount specified in the notice issued pursuant to s 145 of the 1987 Act, dated
1 September 2023, including:
(i)whether the second respondent sustained an injury to her lower back on
29 March 2023 pursuant to ss 4 and 9A of the 1987 Act;
(ii)the extent and quantification of incapacity resulting from the injury in the period from the period from 30 March 2023 to 30 August 2023, and
(iii)whether the medical and related treatment expenses paid were reasonably necessary as a result of the injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter proceeded to conciliation conference and arbitration hearing on 8 August 2024 via Microsoft Teams after multiple preliminary conferences at which various orders were made including for the joinder of the second respondent, the filing of Directions for Production and the admission of late documents.
The applicant was represented at the conciliation conference and arbitration hearing by
Mr Paul Macken, legal practitioner. The first respondent was represented by Mr Daniel Stiles of counsel, instructed by Ms Miriam Browne. The second respondent was represented by
Mr Ty Hickey of counsel, instructed by Ms Tolini Kakala.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (Application) and attached documents;
(b)    Reply lodged by the first respondent and attached documents;
(c)    Reply lodged by the second respondent and attached documents;
(d)    documents attached to an Application to Admit Late Documents lodged by the first respondent on 26 April 2024;
(e)    documents attached to an Application to Admit Late Documents lodged by the second respondent on 29 April 2024;
(f)    documents attached to an Application to Admit Late Documents lodged by the applicant on 4 July 2024;
(g)    documents attached to an Application to Admit Late Documents lodged by the second respondent on 22 July 2024, and
(h)    signed statement of Haleh Golshani lodged by the applicant on 12 August 2024.
No application was made to adduce oral evidence or cross-examine any witness.

Factual evidence

The material attached to the Application indicates that the second respondent commenced employment with the applicant as a full-time “Co-Room Leader” on 30 January 2023.
The second respondent signed an Induction Checklist, which covered the applicant’s WHS policy and hazard reporting.
A copy of the second respondent’s curriculum vitae indicated that she ran a family day care business from 2017 until commencing employment with the applicant.
A record of a disciplinary meeting held on 23 March 2023 indicates that the second respondent was given a first official warning and was required to attend a course titled “Educator Interactions with Children” after she was found to have breached the applicant’s Interactions with Children Policy. The second respond was found to have taken a child by the arm in a manner that was described by witnesses as ‘aggressive’.
On 29 March 2023 at 10:12pm, the second respondent sent the applicant a text message which read,
“Hi Sarah, unfortunately I have a very severe back pain and have to see my doctor tomorrow. As you know there was a lot of pressure at work today because of short in staff and it caused me to have back pain. Sorry for the inconvenience but I need to take sick leave tomorrow.”
At 11:13pm the same night, the second respondent sent the applicant an email resigning her employment:
“I would like to inform you that I am resigning from my position as Lead Educator at Reggio Academy Childcare Centre - Castle Hill with one week notice. I am grateful for the opportunity to work for Reggio Academy, and I have enjoyed my time here. Please accept this letter as formal notification of my decision to move on. My last working day will be Apr 6th, 2023. Thank you for your understanding and I wish you all the best.”
On 6 April 2023, the second respondent emailed a SIRA Certificate of Capacity to the applicant, to which Sarah Gao, a Director, responded:
“This is the first we have heard of an injury occurring whilst you were at work. From verbal conversations that have occurred with yourself and other members of staff, we are aware of a pre-existing condition relating to your back and we have received an unsigned doctors certificate indicating that the reason for your absence is sciatica pain.
Can you please confirm whether the condition:
· Was pre-existing
· Sustained at work - date/time”
On 8 April 2023, the second respondent replied as follows:
“At the start of my employment and interview I expressed my preference Not to work at Babies room and you agreed to put me in Pre-school room due to my back problem and trying to avoid flaring up.
On the day of incident (Wednesday 29th March), and following repeated occasions of working ‘Out of Ratio’, as you remember, Pre-school room (Empower), was supposed to contain 17 children two educators (Myself and Sejal).
4 children were absent on that day and 3 educators had to leave the centre sick. Hence, you ended up moving Sejal to toddler's room and I ended up being left in the room with 13 kids which later combined with Discovery Pre-school room with another 8 kids, which made it 21 children to me and Mandy to care for. This was again Clearly out of ratio.
After lunch time, Mandy took her kids to her room and left me again with 13 kids to look after, clean the mess after launch and change nappies for several kids that couldn't have sleep time without a nappy on.
That's when I mentioned to you that I was out of ratio with 13 children and you advised: ‘Open the door between two rooms and do your job!’ and that Mandy would supervise my kids as well.
Mandy did not let the door be left open wide since the music from my room wouldn't let her children to sleep.
Under such pressure and situation from around 12:30 pm till 3:00 pm, I had to take 5 kids to the toilet for putting on nappy and leave the rest without my supervision in the room, I had to set up 13 beds for children to sleep, clean up the lunch table of 21 children and sweeping the floor all by myself.
This is when I started to feel a severe back pain that I hadn't experience for very long time. Even later on when Haleh saw me outside sitting on the ground, she found that I am in a very bad pain.
When I reached home after work, I found I cannot work the next day and sent you a text message, asking to get sick leave for Thu 30.03.2023 because of severe back pain caused by short staff at Work.
I was in such a bad pain that I could not move out of bed, crying and emotionally hurt and decided to resign from work with one week leave notice that's when you received my resignation email.
On 30.03.2023, I visited my GP and he sent me to have a MRI immediately to evaluate the situation of my spine and lower back. He asked me to rest with strong pain killers and referred me to Physiotherapy. All medical records and history is available to provide if required by insurance / work-cover NSW.
On Mon 03.04.2023 , while still hadn't recovered from last week's injury, I was asked by Mandy to clean and tidy up storage room which I refused to do because of my back pain. Later again Mandy asked me about Weekly plan when I mentioned I hadn't done it since I did not get any prap time on the week before.
Later on the day around 10:00 am, Haleh asked me about weekly plan and when I explained her the story, she said I can get a medical certificate and rest the whole week at home.
As you can see there was not any time for completing an incident report. However, I informed you of my injury and pain and being out of ratio beforehand.
This is a Very Clear Case of Work-place Injury and my doctor supports that.”
Ms Gao replied to the second respondent’s email on 13 April 2023 as follows:
“You have made a claim that there were repeated occasions of working out of ratio. Our records show this is incorrect, as the rooms combined ratios are well over. Between the Empower Room and Discovery Room, which has an interconnecting glass door and interconnecting bathrooms there were 3 educators rostered on at that time with a combined ratio well above what was necessary for the room. Sejal covered Explorer Room from 12pm to 1pm.
At no point were the words you claimed ‘open the door and do your job’ used. Our receptionist Victoria was present at the time of the conversation and she will verify this in a signed affidavit. The conversation involved asking you ‘how many children do you have in your room, how many children does Mandy have? Because the mixed ratio is appropriate you can open the doors and you will be on shared ratio’.
At the start of your employment you requested to not work in the baby room as you preferred working with the 3-4 age group. At no point have you been requested to work in the babies room. Changing nappies using the stand up nappy change process, cleaning up after lunch and supervision of children are all within your role description and the expectations of you as an educator in the Empower Room. At no point during your employment did you raise to management that you had a pre-existing injury that would prevent you from conducting these duties.
In your letter of resignation, you stipulated that you wished to leave your position of work due to ‘moving on’. You later made a statement to Haleh on the 3rd April where you stated that you felt the industry was no longer for you and you were looking at other options.”
A work injury claim form was completed by the second respondent on 19 April 2023. The second respondent described the circumstances of injury as follows:
“On Wed 29th Mar, because of short in staff, childcare centre director left me in pre-school room with 13 kids which later combined with another room with 8 kids, which made it 21 children to me and another educator to care, clearly out of ratio by rules. After lunch time, the other educator took her kids to her room, left me again with 13 kids to look after, clean the mess, change nappies. I was under such a pressure from around 12:30 to 3:00 pm. This is when I started to feel a sever back pain that I hadn't experience for a very long time. I reported this to director as we are out of ratio.”
A written note signed by V Bicopoulos on 15 September 2023, stated:
“Elham attended 56 Chepstow Drive Castle Hill with her daughter to return her uniforms. Elham arrived with a cheerful, energised demeanour evident in the sprint in her walk, appearing bright and refreshed. We had a brief discussion around how good she looked. …
I asked Elham ‘What will you be doing next? You just applied for your degree in childcare at uni?’ Elham: ‘I have decided that childcare is not for me?’”

Treating evidence

The report of an MRI of the second respondent’s lumbar spine conducted on
4 November 2017 noted a history of lower back pain with radiculopathy to the right side and paraesthesia. The report found evidence of degenerative disc disease at L4/L5 and L5/S1. At the L4/L5 level, there was contact with the transiting L5 nerve roots on both sides. There was no evidence of exiting nerve root impingement at any level.
The second respondent underwent an X-ray of the thoracic spine around the same time which found no abnormality to account for the applicant’s symptoms of pain and discomfort. An X-ray of the thoracic spine was conducted on 17 August 2019 and again showed no relevant abnormality.
Clinical records from Rouse Hill Town Medical & Dental Centre show that the second respondent consulted her general practitioner, Dr Nima Rahmanamlashi, on 9 August 2022 reporting:
“low back pain
radiating to lower limbs- bilaterlaly
worse after long flight to Europe
rest
heat pack
NSAID prn”
On 30 March 2023, Dr Rahmanamlashi recorded a consultation as follows:
“1)sciatica
bilateral readtiion
parastheisa
SLR is postiive bilaterlly
ROM is reduced by pain
2)mood
is reduced
poor attention
poor concentration
teary
for no reason
currently on zolfot 50
to increas to 50mg
review in 4weeks [sic]”
The second respondent was given a referral for an MRI of her lumbar spine.
The report of an MRI performed on 31 March 2023 at Dr Rahmanamlashi’s request, indicated that there were lumbar spondylotic changes most conspicuous at L4/5, where there was potential contact of bilateral descending L5 nerve roots, particularly on the left.
On 3 April 2023, the second respondent obtained a standard medical certificate from
Dr Rahmanamlashi, certifying her as unable to work from 30 March 2023 to 6 April 2023 inclusive due to a medical condition (sciatica).
A clinical record of the same date recorded the MRI results. No reference to a precipitating event is noted.
A clinical note made at 10:03am on 6 April 2023 recorded:
“enqiury regaridng workcover
had low back pain
secondary to her job
she prefers to have workcover
to come in person for forms[sic]”
At a second consultation at 12:25pm on 6 April 2023, Dr Rahmanamlashi noted:
“she had history of low back pain
she infomred the pmloyer of being unable to lifting kids in daycre- it wa accepte by employer
she was employyed as room leader of pre-school
on Wed 29/03/2023 she was asked to look after 13 kids(out of ratio)
she had to work extra which caused flare up her low back
she left work- she resigned on teh same night[sic]”
Dr Rahmanamlashi issued a SIRA Certificate of Capacity on the same date, certifying the second respondent as having capacity to work in suitable duties for 10 hours per day, 4 days per week from 6 April 2023 to 20 April 2023. The certificate gave a diagnosis of low back pain but no details as to how the injury occurred or any pre-existing factors.
On 1 May 2024, Dr Rahmanamlashi recorded a consultation as follows:
“needs workcover certificate
needs to be amended
done
the pain has become severe which affects her life
affecting her mood
unable to sit- stand for more than a few minutes”
Dr Rahmanamlashi issued a second certificate of capacity which certified the second respondent as having no current work capacity from 30 March 2023 until 8 May 2023. The certificate said the injury occurred due to being overworked while out of ratio due to the childcare centre being short staffed.
In response to a question, whether there were any pre-existing factors relevant to the injury, Dr Rahmanamlashi said the applicant had mild spinal pain years ago which had been stable for years.
The second respondent continued to be certified as having no current work capacity throughout the relevant period.
Dr Rahmanamlashi responded to a series of questions from the first respondent on
6 May 2023. Dr Rahmanamlashi described the injury in a manner consistent with the second certificate of capacity. The MRI findings were noted and the clinical signs and symptoms observed were said to include severe pain, restricted range of motion, positive straight leg raising tests and tenderness over the paravertebral areas. Dr Rahmanamlashi reiterated that the second respondent had a history of previous lower back pain that had been stable for years. Dr Rahmanamlashi expressed the view that being short staffed and working out of ratio was the main contributing factor to the injury.
The second respondent was said to have no capacity for work and would be expected to return to pre-injury duties within three to six months.
At further consultations throughout May and June 2023, Dr Rahmanamlashi recorded that the applicant’s condition had been stable and there had been no improvement.
At a consultation on 6 July 2023, Dr Rahmanamlashi recorded:
“conditions has been worsening
severe low back pain
flare up after even 5 min siting or standing
radiating ot both lower limbs
to continue Lyrica
to continue physio/hydro
discussion about steroid injection
she prefers to have hydrotherapy first[sic]”
The second respondent underwent a left L5 perineural injection on 8 August 2023.
A letter of referral to neurosurgeon, Dr Behzad Eftekhar from Dr Rahmanamlashi, dated
6 November 2023, stated:
“Presenting Problem:
Work-related injury
Mechanism: frequent lifting kids in day care
Type of injury: L Low back pain
MRI: L4/5 spondylitic changes with contact of bilateral descending L5 nerve roots more on left side
Treatment: physiothera/hydrotherapy
She had one steroid inj – left L5 perineural inj in August
She has had only partial response to treatment”
Dr Eftekhar prepared a report on 9 January 2024 in which he stated:
“As you are aware, Elham had a work-related injury in March 2023 and since then has been having severe back pain and right leg pain. Standing and bending aggravates the symptoms. The pain has affected her functionality and quality of life significantly.
On examination, I could not reveal any objective motor deficits or upper motor neuron signs. Lateral aspect of her left thigh was very tender to touch.
I reviewed the images that you kindly arranged. The L4/5 neural compression is not sinister enough to require neurosurgical intervention.
Elham would benefit from physiotherapy and hydrotherapy. If the symptoms remain unmanageable referral to pain specialist and consideration of left sided local pathology (trochanteric bursa) can be considered.
In my opinion her symptoms are consistent with the described work-related injury.
I did not arrange a formal appointment to review her, again, however, should any new issues arise, I would be happy to see her.”

Factual investigation

The applicant relies upon an investigation report prepared by IFW Global Investigations dated 14 February 2024.
Amongst other things, the investigation report noted that an Instagram profile and TikTok account named smileykiddo.au were established in September 2023 and appeared to be managed by the second respondent.
An online storefront on Etsy called SmileyKiddo.au listed “Elham” as its owner and had been active since 2023. The merchandise available for purchase in the shop included various holiday ornaments and decorations.
The website domain was registered under the second respondent’s husband’s name.
The report indicated that surveillance operations were executed on 6, 7 and
10 February 2024. During the surveillance, the second respondent was seen operating a motor vehicle, walking and carrying a pet dog that appeared to weigh between 4 and 6kg without displaying any noticeable signs of pain or discomfort.

Bank statements

The applicant relies upon various bank statements pertaining to accounts owned by the second respondent. The bank statements show regular deposits relating to the family daycare business operated by the second respondent prior to the commencement of her employment with the applicant.
After the date of injury, there were various other deposits into the accounts.

Ms Gao

Ms Sarah Gao, a Director of the applicant, provided a written statement on 26 June 2023.
Ms Gao said she understood that the second respondent had operated a family day care business at her home prior to commencing employment with the applicant. The second respondent did not disclose any prior back injury when commencing employment.
Upon commencing employment, the second respondent required some additional training:
“Once employed and working at the centre, Elham did not work in line with Reggio Academy’s philosophy and her documentation wasn’t at a standard that we expected. Completing documentation is a big part of the Room Leader role. To assist Elham, I ran three (3) training sessions, one on one with her across three (3) weeks. I gave Elham a lot of support in terms of how the programs should be run. I was happy to do this with Elham as I believe professional growth in educators especially is important.”
Ms Gao described a complaint in relation to the way the second respondent had physically handled a child:
“Around the 20 March 2023, I received a verbal complaint, and subsequent written complaint from a parent in relation to Elham and the way she physically handled a child.
I completed an investigation into the allegation and reviewed CCTV footage. The footage showed that the way Elham interacted with the child was not in accordance with our policies and procedures and it was decided that disciplinary action would be taken.
On the 23 March 2023, I met with Elham where she provided her side of the story. I told Elham her actions were not acceptable, and I issued her with a first warning letter.
After this meeting, Elham seemed to be a bit disengaged in her role.”
Ms Gao described events on 29 March 2023:
“On the 29 March 2023, I recall I was at work. Haleh Golshani, the other Director, was at work in the morning but left before lunchtime. Sometime in the morning, some staff went home sick. As a result, I pulled a staff member by the name of Sejal out of Elham’s room and had her assist in the other room where there was short staff. Sejal was asked to take one (1) child with her. Elham’s room with twelve (12) children then joined Mandy Gu’s room which had eight (8) children keeping them within ratio.
Sometime in the afternoon, Elham came out of her room and into the office. It was after Mandy took her eight (8) children back to her room. Elham said, ‘I am over ratio, I have thirteen children and there is only me in the room’. I said to Elham, ‘Mandy’s got enough room to have more children to be accounted for in her ratio, those children can be moved across’. Elham said, ‘Ok’ and she went back to the room.
I assumed the children were moved to Mandy’s room as they were the instructions I gave. This is something that occurs daily when the rooms are not at ratio. If instructions are provided to staff, it is up to the educators to enforce those actions.
At no time was Elham on her own with thirteen children.
Between Elham and Mandy’s rooms, there is a sliding glass door dividing the two. When the children are split between the two rooms, it doesn’t mean they are in a separate room altogether. They are just in a different learning space.
In her role as an Educator, Elham is expected to take out the beds for the children, clean up after them and assist children in the toilet and with nappies. Elham has been doing these duties as a part of her role since February 2023 with no issue or complaint made.
Elham finished her shift at 6pm as rostered. At no time on this day whilst at work did Elham complain to me that she hurt her back. Elham was not acting as though she was injured. There was nothing said or done by Elham to suggest that she was injured.”

Ms Golshani

Ms Haleh Golshani, another Director, also prepared a statement on 22 June 2023 in which she described events on 29 March 2023:
“I checked my diary and could see that on the 29 March 2023, I was at the centre at about 8am and left at 10am. Sarah stayed at the centre as the Director and Victoria was also working. Victoria works in admin and sits at reception.
I don’t recall anything out of the normal happening on this day.
At no time during this day did I go into Elham’s room. I did not see Elham sitting on the floor. Elham did not tell me at any time that she hurt her back whilst at work. Elham did not tell me about feeling any back pain.
I did not say to Elham, ‘You just sit there and supervise the children’ nor would I ever say that, especially in a childcare centre.
Elham was doing the role of what an educator should be doing. We weren’t asking Elham to do anything other than what is in her job description. The tasks Elham completed on the 29 March 2023 are the same tasks she has been doing since February 2023 with no complaint.
From my understanding the children to staff ratio was fine on that day. Had there have been an issue with ratios, Sarah could have assisted in the room.”

Second respondent’s evidence

The second respondent has provided written statements dated 23 June 2023 and
21 July 2024.
In her first statement, the second respondent stated that in the pre-school room in which she worked there needed to be a ratio of one educator to every 10 children to comply with national quality standards. The room was able to accommodate up to 30 children per day.
On 29 March 2023, the applicant commenced work at 7:00am with another educator, Sijal. There were 13 children in the room that day. At about 9:30am, three staff from the baby and toddler rooms left work early as they were sick. Sijal went to the baby and toddler rooms to assist.
The second respondent combined her room with the other pre-school room which had only eight children. After lunch at 12:00pm, the other eight children returned to their own room. The second respondent stated:
“I was so upset when Mandy and the children left. This left me with thirteen (13) children to care for on my own. I had to clean up the lunch mess made by 21 children by myself, I had to get the children to wash their hands and if they are toilet trained, send them to go to the toilet. I had to put nappies on the five (5) children who were not toilet trained before their sleep.
I went to the director, Sarah Gao and I said, ‘Sarah, I am out of ratio by myself with thirteen (13) children’. Sarah said, ‘That’s ok, open the door between your room and Mandy’s room, that way she can supervise your children and you can do your job’.
I was under lots of pressure. There were children crying and running around, I was with some of the children in the bathroom and then there were other children with no supervision. I was finding it difficult to settle the children on my own. I was badly stressed that day.
I then had to set up thirteen (13) beds for the children. I had to get out the beds and place them on the floor. I then had to put a sheet on each of the mattresses. The mattress is approximately the same size as a cot mattress. They are not that heavy, but I had to keep bending over.
I was bending a lot and my back started to suffer very bad pain. I screamed in pain; I was bending over at the time. The children were scared, wondering what was happening to me. There was no staff member in the room with me at the time. I couldn’t move anymore. Slowly, slowly, I stood up.
In the afternoon, I couldn’t move. I took the children outside and was standing trying to supervise them. My back was in so much pain that I had to sit on the ground. The owner of the centre, Haleh Golshani, came to me and I told her I have bad back pain and I can’t get up. Haleh said, ‘That’s fine, you sit and supervise the children’.”
The second respondent said that Sijal covered her lunch and she told her everything.
In her second statement, dated 21 July 2024, the second respondent stated that she had not engaged in any remunerative work since ceasing employment with the applicant. The second respondent said she had been unfit to work in suitable employment since ceasing work.
The second respondent addressed the surveillance footage relied upon by the applicant. The second respondent said her dog was a fluffy and tiny Pomeranian who weighed no more than 3kg. The footage showed her walking the dog only a short distance from her car to the house. The act of dropping her children at school involved minimal physical exertion.
The second respondent said she found the suggestion that she was fabricating or exaggerating her symptoms or engaged in work while receiving workers compensation payments offensive and hurtful.
The second respondent said she was able to undertake activities of daily living if she paced herself and took necessary precautions. This did not equate to being able to sustain regular suitable employment.
The second respondent said that credits to her bank account after the injury were mainly from friends. The second respondent said,
“For example, I have a close friend Rozita Khosravifar, who lives in Wollongong. She is a doctor and she has limited access and time to buy Persian food in her area. She often asked us to buy items for her, especially if we go to a Persian grocery. There is also money paid into my account from friends when we go out and cover food or to a concert, and they pay us back their share. Or friends have given me money back for a friend’s birthday after we purchased a gift together and they paid their share.”

Mr Shojael

The second respondent’s husband, Mr Hamidreza Shojael, has provided a written statement dated 15 July 2024.
Mr Shojael stated that he was employed as a software developer at Hanson Construction Materials on a full-time basis.
Mr Shojael said he set up a business and registered company under the name Bellcast Pty Ltd in 2021. The domain name for the business was Smiley Kiddo and was registered under his name. All the operations were solely managed by Mr Shojael. Mr Shojael said he sold personalised gift boxes and items via a website and Etsy. Mr Shojael stated:
“Elham does not have any activity in there except some promotion on her social media. I have attached a screenshot of the website that clearly shows on the bottom of the website, "Bellcast Pty Ltd". As the target market for the business is directed to Mothers, I have used a female name as a marketing strategy.”
Mr Shojael said the business only started producing income in 2024. There had been only three sales on the Etsy shop and 12 sales on the website. Most of those sales were given away as promotional gifts, fake sales made by Mr Shojael or sales to friends.
Mr Shojael confirmed that he handled all aspects of the business.

Applicant’s submissions

The applicant conceded that it was uninsured on 29 March 2023.
The applicant submitted that the injury in this case was in the nature of a disease insofar as the evidence suggested that the second respondent experienced an onset of pain over the course of the day. The applicant submitted that the proper deemed date must be
30 March 2023 as the first date of incapacity for the purposes of ss 15 or 16 of the 1987 Act.
The applicant submitted that the allegation of injury was disputed. The second respondent made no report of injury on the day in question although she did send a message later that night.
The second respondent had given evidence that she had screamed in pain and told a co-worker about her pain. The co-worker denied that happened. If there was an injury on that day, having regard to the training given to the second respondent, one would expect she would have reported it. The second respondent had only recently undergone training during her induction.
The applicant noted that the second respondent had received a warning regarding a workplace incident in respect of which she had admitted handling a child in an aggressive manner. Within six days of the incident, the second respondent resigned employment allegedly due to the injury.
The second respondent obtained a medical certificate on 3 April 2023 stating that she was not fit to work from 30 April 2023. There was no reference to a workplace incident in the corresponding clinical note.
A certificate of capacity issued on 6 April 2023 certified the second respondent as having capacity to work 40 hours per week.
The evidence from Ms Gao suggested that the applicant was disengaged following the warning. Ms Gao was at work on the date of the alleged injury. Ms Gao’s evidence was that the second respondent gave no indication that she had suffered an injury. If the second respondent had experienced back pain so severe that she was screaming in pain it would be expected that she would have reported it to employer. Instead, the second respondent said nothing about it to Ms Gao or anyone else. Nothing was said or done to indicate that an injury had occurred.
Ms Gao’s version of events was confirmed by Haleh Golshani. Ms Golshani said she had left work at 10:00am. She did not recall anything abnormal, did not see the second respondent on the floor and was not told about any back pain. The person whom the second respondent said she reported the injury to was not even present when the alleged conversation took place.
The evidence of Ms Bicopoulos was that when the second respondent was next seen, she appeared bright and refreshed. The second respondent did not mention any injury or incapacity but simply said childcare was not for her.
The applicant noted that the second respondent had undergone an MRI on 31 March 2023, however she had previously undergone an MRI in 2017. There was no demonstrable difference in the MRI findings.
The corresponding clinical notes referred to symptoms without any reference to work or the cause. The second respondent was given a general medical certificate. A SIRA certificate was not issued until a week later.
The second respondent admitted to suffering back pain previously but not for a long time. The clinical notes revealed, however, that she reported back pain to her doctor six months earlier in August 2022 after a flight to Europe. The symptoms described then were the same as those described after the alleged injury.
The applicant submitted that the Commission would not be satisfied that an injury was sustained.
The applicant submitted that the first respondent’s claim contained inaccurate assertions which placed her credibility in issue. The claim form dated 19 April 2023 referred to staff shortages and a complaint about the child / educator ratio which had been denied by the applicant’s witnesses. The second respondent’s claims of not having experienced back pain for a very long time or until 2017 were incorrect. The second respondent denied any previous injury despite clearly having a previous back issue. The applicant submitted that the second respondent’s version of events lacked credit and should not be accepted.
On that basis, the applicant’s submitted that it was not liable to reimburse the first respondent. There was no injury on the date in the notice or any basis on which to deem an injury on that date.
In the alternative, the applicant disputed that the second respondent was incapacitated as alleged.
The first certificate of capacity indicated that the second respondent had capacity to perform suitable duties for 40 hours per week. There was then an unexplained, rapid and retrospective deterioration. The next certificate of capacity was backdated and altered the certification to one of no current work capacity from 30 March 2023 to 8 May 2023.
The applicant submitted that the Commission would prefer the more contemporaneous certification.
The applicant further submitted that its surveillance material demonstrated no observable lack of capacity. The second respondent was seen carrying a dog and driving without issue. This was consistent with at least some capacity if not normal capacity.
There was also evidence of a business being operated by the second respondent. At the time of the factual investigation the second respondent was named as the owner of the business on its Facebook page. The second respondent now asserted, that her husband who was engaged in full-time employment elsewhere was in fact the one responsible for running the business. This evidence was improbable. There was no evidence to suggest that the second respondent lacked capacity to run an online business.
The second respondent’s banking records contained various anomalies. In early 2022, prior to the commencement of employment with the applicant, the second respondent was operating a family daycare business at home. Payments were made into the second respondent’s account which identified the name of the child to whom the payment concerned.
After the injury, payments were made into the applicant’s account from Rozita Khoshrafar. The second respondent suggested that this was used to buy food at Persian markets on behalf of a doctor in Wollongong. This evidence was said to be improbable. Even if the second respondent’s evidence were accepted, her ability to do shopping and deliver large purchases of food to Wollongong was indicative of some capacity to work.
The second respondent had made no attempt to return to work. Her bank statements suggested, however, that work was being conducted. No suggestion had been made that the second respondent’s husband operated a daycare business at home.
The medical evidence did not support a conclusion that the second respondent remained totally incapacitated for work. The second respondent’s neurosurgeon could not find objective evidence of a significant problem. He suggested analgesia and physiotherapy. This was not consistent with someone who had been totally incapacitated for 15 months.
Dr Eftekhar reported that the investigations did not reveal pathology sinister enough to warrant intervention. There was no evidence of referral to a pain specialist. No review was arranged.
The medical evidence was not consistent with someone who, 15 months after the development of lower back pain had abandoned the workforce completely. The Commission ought to find that the second respondent had capacity to work in suitable employment and that the applicant should not be required to reimburse the first respondent.

First respondent’s submissions

The first respondent submitted that the Commission was confined to considering the period covered by the s 145 notice. Some of the applicant’s submissions were outside the scope of what the Commission had jurisdiction to deal with in the present application. The Commission was only concerned with the payments particularised in the s 145(1) notice.
The first respondent acknowledged that the Commission was required to consider whether there was an injury on 29 March 2023. The evidence established that there was. The contemporaneous evidence showed that the second respondent reported an injury to
Ms Gao on that date in a text message at 10:12pm. The second respondent referred to back pain and needing to take sick leave after being under a lot of pressure at work. The first respondent submitted that it was clear that the second respondent reported experiencing back pain due to her work duties on 29 March 2023.

The clinical records the next day showed that the second respondent consulted her general practitioner reporting sciatic pain for which she was referred for an MRI. The treating evidence was consistent with what the second respondent had indicated in her text message to the applicant the previous night.
The MRI was performed and the second respondent’s general practitioner issued a general medical certificate on 3 April 2023 indicating that she was unfit for work due to sciatica.
The second respondent returned to her general practitioner on 6 April 2024 and obtained a SIRA medical certificate. Although this suggested that the second respondent had capacity to perform suitable duties, the first respondent suggested that this might simply have been because the second respondent had been asked to get a certificate setting out her employment restrictions.
The claim form submitted on 19 April 2023 contained a description of what happened. The second respondent described severe back pain which she had reported. The evidence did not suggest a gradual onset of symptoms over time but was consistent with the date of injury being 29 March 2023.
The SIRA certificate of capacity dated 1 May 2023 described the injury consistently. Although a previous condition was acknowledged, it had been stable for years. Other than the first certificate, the balance of certificates indicated that the second respondent had been unfit for any work throughout the relevant period.
The first respondent noted the general practitioner’s response to questions from the insurer also indicated that the second respondent had no capacity for work and was not expected to return to her pre-injury duties for three to six months.
The clinical notes indicated that the second respondent returned to her general practitioner with worsening, severe lower back pain. The second respondent was referred to a neurologist but he did not see her until January 2024. The first respondent said this was not relevant to the period under consideration but supported the second respondent’s claim that she had reported ongoing symptoms consistent with injury.
The first respondent submitted that the second respondent’s statement evidence was consistent with the objective medical evidence. Ms Gao’s evidence acknowledged the text message received on 29 March 2023.
The first respondent submitted that the applicant’s investigation report was prepared in February 2024. As a result, it was not relevant to the question of incapacity which was confined to a period ending in August 2023. The second respondent had responded to that evidence to the extent it might be relevant to any future recovery proceedings.
The first respondent submitted that the bank statements did not take the matter anywhere. The second respondent had responded to the inferences the applicant sought to draw from those statements. There was no reason not to accept the second respondent’s explanations.
The first respondent submitted that there was no positive medical evidence to suggest that the second respondent’s injury had resolved or that she had greater capacity to engage in employment.
With regard to the past history of back symptoms, other than the single entry on
9 August 2022, there were no complaints of symptoms or referrals to specialists or radiological investigations for a period of 5 ½ years. The complaint on 9 August 2022 was in the context of a long haul flight.
All of the available evidence supported a finding of injury and incapacity. The first respondent submitted that the Commission should refuse the application and make orders for the payment of the amount claimed in the notice dated 1 September 2023.

Second respondent’s submissions

The second respondent adopted the submissions of the first respondent and noted that she was participating in the proceedings as an interested party only.
The second respondent observed that the difficulty faced by the applicant was that there was no medical evidence to support its propositions regarding incapacity or injury.
The only contrary evidence was the first certificate of capacity which suggested a capacity to engage in suitable employment for 40 hours per week. In the circumstances, the Commission would not accept that the applicant had discharged its onus.
The second respondent observed that the applicant sought to make much of the radiological investigations but was not qualified to give a medical opinion.
The second respondent acknowledged that an MRI scan had been taken in 2017. The second respondent submitted that the reports were not identical. The applicant’s general practitioner had recorded that the disc bulges seen on the 2023 investigations were due to events at work.
The second respondent submitted that Ms Gao’s text message responding to the second respondent’s message on 29 March 2023 did not suggest any surprise. Her response was “okay, thanks”.
No evidence had been provided from any of the second respondent’s co-workers disputing what she said. The only witness evidence was from the Directors of the applicant, who had a personal interest in the proceedings. In particular, no evidence had been provided from the second respondent’s co-worker, Sijal.
The second respondent noted that Ms Golshani’s statement indicated that she had checked her diary and had left at 10:00am on the day in question. She did not recall anything out of the ordinary. It was quite clear that Ms Golshani had little actual recollection of the events on that day.
Ms Gao’s response to the second respondent’s SIRA certificate of capacity expressed surprise but this was inconsistent with the other evidence, including her own text message on 29 March 2023. Her response was confrontational, presumably because of the previous disciplinary incident. Given that the applicant did not hold a policy of insurance, Ms Gao’s evidence ought to be treated with caution.
The second respondent submitted that the applicant’s submissions suggested that she had underplayed her history of back pain. The clinical notes revealed very minor complaints of pain in the past. After the injury, the applicant was prescribed Lyrica and referred for physiotherapy, demonstrating a clear change of circumstances.
The second respondent disclosed her history of back pain to her employer. The second respondent’s general practitioner confirmed that the previous condition had been stable.
The medical evidence was unchallenged and there was nothing to contradict the second respondent’s assertions.
The second respondent said that although Dr Eftekhar did not arrange a further review, his report did not suggest the applicant’s back condition was normal. His report confirmed that the second respondent was experiencing severe back pain and leg pain affecting her quality of life. Dr Eftekhar documented objective findings but just not of the kind warranting surgery.
The only medical evidence as to capacity was the SIRA certificates of capacity. The applicant’s suggestion that the surveillance evidence demonstrated capacity should be rejected. No medical opinion as to what that evidence demonstrated had been proffered.
The submissions with regard to the banking records did not demonstrate anything untoward. The banking records showed evidence of income in 2022 prior to the commencement of employment with the respondent. After the injury, there were sporadic deposits or transfers. The second respondent had explained what those transfers represented. There was insufficient evidence to demonstrate a capacity to engage in work.
The second respondent agreed that any evidence dated after the period which was the subject of the s 145 notice was irrelevant. The material from the relevant period all indicated a total incapacity.

Applicant’s submissions in reply

The applicant submitted that the inconsistency between Ms Golshani’s evidence and the second respondent’s evidence was clear. The applicant described screaming in pain such that the children were scared. The difference between the second respondent’s evidence and Ms Golshani’s evidence was categorical.
Ms Gao’s evidence was that she was present the whole day but did not receive any report of injury until 10:00 or 11:00pm, together with a concurrent resignation.
The applicant submitted that the second respondent’s text message at 10:12pm did not refer to any injury at work, it simply referred to back pain. The clinical records from the following day did not suggest that the applicant had experienced an acute injury at work. There was no reference to any workplace connection until 6 April 2023 when the applicant made an enquiry regarding WorkCover.
The evidence suggested that the second respondent had experienced a flareup of back pain but it was not until sometime later that she decided it was related to her employment.
The applicant submitted that the Commission would accept the evidence of Ms Gao and
Ms Golshani. There was no evidence corroborating the second respondent’s version of events.
The evidence from the neurosurgeon suggested that the applicant’s condition was not serious. There was no suggestion that there had been a recent improvement in the applicant’s condition. The evidence from Dr Eftekhar was relevant to the period which was subject of the s 145 notice.

FINDINGS AND REASONS

It is conceded that on 29 March 2023, the applicant in these proceedings did not hold a valid policy of workers compensation insurance.
Section 155 of the 1987 Act makes it compulsory for an employer to obtain and maintain in force, a policy of insurance for the full amount of the employer’s liability under the 1987 Act in respect of all workers employed by the employer for any injury to any such worker.
Part 4 Division 6 of the 1987 Act permits workers who consider that they have a claim against an employer for compensation to make a claim against the Nominal Insurer if the employer is uninsured: s 140 of the 1987 Act.
Sub-section 141(3) provides that if a payment is made in respect of a claim under Division 6, the Nominal Insurer may recover the amount paid from the employer. The process for requiring an uninsured employer to reimburse the Insurance Fund is set out in s 145 of the 1987 Act and requires a notice to be served under s 145(1):
“145 Employer or insurer to reimburse Insurance Fund
(1) The Nominal Insurer may serve on a person who, in the opinion of the Nominal Insurer, was—
(a) in respect of an injured worker to or in respect of whom a payment has been made by the Nominal Insurer in respect of a claim under this Division, an employer at the relevant time, or
(b) an insurer under this Act of such an employer,
a notice requiring that person, within a period specified in the notice, to reimburse the Insurance Fund an amount (not being an amount exceeding the amount of the payment made) specified in the notice.”
Sub-section 145(2) makes provision for the Nominal Insurer to waive an employer’s liability under s 145(1) in certain circumstances.
Sub-section 145(3) provides that a person on whom such a notice has been served may apply to the Commission for a determination as to the person’s liability in respect of the payment concerned.
In hearing such an application, s 145(4) provides that the Commission may make such determination in relation to the application, and such awards or orders as to the payment of compensation or in respect of the injured worker concerned, as the Commission thinks fit. However, s 145(4A) provides that the Commission is not authorised to make a determination that “waives” the liability of an employer or that limits or otherwise affects any function of the Nominal Insurer to decide whether or not any such liability should be waived.
In Ballantyne v WorkCover Authority of NSW[2] (Ballantyne) the Court described the Commission’s function in determining an application under s 145(3) as follows:
“(f) In determining an application under sub-s (3), pursuant to the power conferred by sub-s (4)(a), the function of the Commission is to determine whether the payment made by the Authority was in fact a payment of ‘compensation in accordance with this Act’, which would otherwise have been payable by the employer or its insurer, and also, if the matter were in issue, to determine whether the person served was indeed the relevant employer or insurer of such employer.
(g) If satisfied as to the amount of the payment concerned and the identity of the employer, the Commission would ordinarily make whatever order it thought appropriate to dispose of the application according to law. As now envisaged by sub-s (7), the appropriate order would be that the person served with the notice pay the amount to the Authority by way of reimbursement of the WorkCover Authority Fund, within a specified time.”
[2] [2007] NSWCA 239.
Sub-section 145(5) provides that for the purpose of proceedings in the Commission a certificate certifying that payments were paid to or in respect of an injured worker is evidence of the matters stated in the certificate:
“(5) In any proceedings under subsection (4), a certificate executed by the Nominal Insurer and certifying that—
(a) the payments specified in the certificate were paid to or in respect of an injured worker named in the certificate, and
(b) a person named in the certificate was, in the opinion of the Nominal Insurer, liable at the relevant time to pay to or in respect of the injured worker compensation under this Act or work injury damages,
is (without proof of its execution by the Nominal Insurer) admissible in evidence in any proceedings and is evidence of the matters stated in the certificate.”

Were the payments of weekly compensation made in accordance with 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.
Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an “injury”, the compensation payable to an injured worker shall include a weekly payment during the incapacity.
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
(iii)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.”
In the case of an injury pursuant to s 4(a) of the 1987 Act, the worker must also satisfy s 9A of the 1987 Act which provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(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:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) 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.”
The applicant disputes that the second respondent sustained an injury for the purposes of ss 4 and 9A of the 1987 Act.
The most contemporaneous account of an injury in the material before the Commission is the text message the second respondent sent to Ms Gao at 10:12pm on the night of
29 March 2023. That text message indicates that the second respondent was experiencing back pain and would be unable to work the next day. The text message also indicated that being under pressure at work that day due to staff shortages had “caused” the second respondent to have back pain.
A work-related cause for the second respondent’s back pain was not identified in the clinical record made by Dr Rahmanamlashi the next day. That clinical note does, however, indicate that the second respondent reported bilateral radiculopathy and paraesthesia. Straight leg raising tests were positive on both sides. Range of movement was reduced by pain. The second respondent’s report of symptoms and the clinical signs observed by
Dr Rahmanamlashi prompted a referral for an MRI of the second respondent’s lumbar spine.
The MRI was undertaken the next day and revealed spondylotic changes, most conspicuous at L4/5 where there was potential contact of the bilateral descending L5 nerve roots.
Upon reviewing the MRI results on 3 April 2023, Dr Rahmanamlashi agreed that the second respondent was unable to work for the applicant from 30 March to 6 April 2023 due to her medical condition. The clinical record made on this date and the standard medical certificate issued by Dr Rahmanamlashi, did not indicate any work-related cause for the second respondent’s symptoms.
It was not until approximately one week later, on 6 April 2023, that the second respondent was recorded to have told Dr Rahmanamlashi that her lower back symptoms were related to her employment. This appears to be the first occasion on which Dr Rahmanamlashi was given a history of a flareup of back pain after being asked to look after 13 children by herself.
The apparent delay in disclosing a work-related cause for the second respondent’s lumbar symptoms to her doctor must be viewed together with the conflicting accounts of what transpired in the workplace on 29 March 2023. As the applicant observed in submissions, the evidence given by Ms Gao and Ms Golshani contradicts much of the second respondent’s evidence as to the events on that day.
The second respondent indicated in her email to the applicant on 8 April 2023, her claim form and in her first written statement that she was left in her pre-school room with 13 children without another educator for a period of approximately 2.5 hours after lunch, during which time she was required to clean up after lunch for 21 children, set up 13 beds, change nappies, sweep and take children to the toilet. The second respondent said it was in this context that she experienced an onset of severe back pain.

The second respondent indicated in her email on 8 April 2023 that she had seen
Ms Golshani later that day when she was sitting on the ground and had told her she was in very bad pain.
In her written statement, the second respondent said that after bending a lot, her back started to suffer and she screamed in pain. The children were scared and wondering what was happening to her. The second respondent could not move but was eventually able to stand up slowly. The second respondent repeated her evidence that in the afternoon her back was in so much pain that she had to sit on the ground. The second respondent said that she told Ms Golshani that she had back pain and could not get up but Ms Golshani simply responded that she could sit and supervise the children.
The second respondent also gave evidence that she told her co-worker, ‘Sijal’, everything when she covered her for lunch.
The second respondent’s evidence is contradicted by the evidence from Ms Gao and
Ms Golshani in several respects.
Ms Gao’s email to the second respondent on 6 April 2023 indicated that the SIRA certificate of capacity was the first she had heard of an injury occurring whilst at work.
Ms Gao’s email to the second respondent on 13 April 2023 suggested that there were three educators rostered to cover the two pre-school rooms at all times with the exception of 12:00 to 1:00pm when the second respondent’s co-worker, Sijal, covered the Explorer Room.
In her written statement, Ms Gao, stated that when the second respondent complained that she was over ratio, she gave instructions for two of the children to move across to the other pre-school room. Ms Gao again denied that the second respondent was working out of ratio at any time. Ms Gao also denied that the second respondent complained that she hurt her back or gave any indication that she was injured.
Perhaps the starkest contradiction between the applicant’s and second respondent’s evidence is contained in the statement of Ms Golshani. Ms Golshani gave evidence that she had checked her diary and could see that she left work at 10:00am on 29 March 2023. Ms Golshani denied going into the second respondent’s room, denied seeing the second respondent on the floor and denied that second respondent had told her that she hurt her back whilst at work. Ms Golshani said the second respondent did not tell her that she was feeling any back pain.
The question of whether the second respondent was working out of ratio at any time during the day on 29 March 2023 is one I find difficult to resolve on the evidence before me. It appears that arrangements fluctuated throughout the day due to staff going home sick. It is unclear when the second respondent took her lunch break.
I do not, however, find it necessary to make a determination on that issue in order to resolve the present proceedings. I do accept that the second respondent was, for a period of time, performing the tasks required of her role on her own and that there had been some staff shortages on the day in question.
I am not satisfied that the second respondent’s evidence with regard to the manner in which her symptoms commenced and her reporting of the injury to Ms Golshani ought to be accepted.
Ms Golshani has provided compelling evidence that she was not present in the workplace after 10:00am on the day in question. This evidence completely contradicts the second respondent’s evidence that she reported her back pain to Ms Golshani in the afternoon of
29 March 2023.
The text message that the second respondent sent to Ms Gao at 10:12pm on
29 March 2023 did not give any indication that she had reported her back pain to Ms Golshani or anyone else in the workplace during the day, although it did suggest that the symptoms were caused by work.
The evidence indicates that the second respondent had recently completed workplace health and safety training during her induction with the applicant. The applicant had forms for reporting workplace injuries and it appears other staff had reported illness and been allowed to go home the same day.
In these circumstances, it is, in my view, improbable that if the second respondent had experienced an acute onset of pain as she has described, so severe that she screamed in pain, frightening the children and could not move, that she would not have made some formal report of the injury during the day. The evidence indicates that the second respondent continued working until the conclusion of her shift at 6:00pm. I find the second respondent’s assertion in her email of 8 April 2023 that there was no time to complete an incident report improbable.
Similarly, had the second respondent experienced an acute onset of severe symptoms as described in her statement evidence, it is, in my view, improbable that this would not have been recorded in her consultations with Dr Rahmanamlashi 30 March 2023 or 3 April 2023.
I have given weight to the second respondent’s submission that the Commission ought to approach the clinical records with caution bearing in mind the authorities such as Davis v Council of the City of Wagga Wagga.[3] I am satisfied, however, that the reference to an “enquiry regarding WorkCover”, the detailed account of the injury in the clinical notes recorded on 6 April 2023, and the issuing of a first SIRA certificate on that date are consistent with the second respondent reporting a work-related cause for her symptoms to Dr Rahmanamlashi for the first time on that date.
[3] [2004] NSWCA 34.
I am also reinforced in this view by the fact that the first SIRA certificate of capacity issued by
Dr Rahmanamlashi certified the applicant as having capacity to work in suitable duties for 10 hours per day four days per week. This evidence suggests that the injury was not totally debilitating or initially so severe that the second respondent could not continue to work on a full-time basis in modified duties. The certification is difficult to reconcile with the second respondent’s evidence that she was in pain so severe that she could not move and was lying in bed crying.
Weighing the evidence, I find that the second respondent did not report any onset of back pain to the applicant until 10:12pm on 29 March 2023. I am not satisfied that her evidence that she told Ms Golshani about her back pain is credible. I also find that her evidence of an acute onset of severe and debilitating symptoms is not credible.
Taken together with the evidence that the second respondent had previously experienced lower back pain, prompting radiological investigations in 2017, and a consultation with her doctor in August 2022, the findings above raise serious doubt as to whether the second respondent in fact sustained an injury in the course of or arising out of employment on 29 March 2023.
In this regard, I have also given weight to the evidence that the second respondent’s employment relationship with the applicant was strained after she had been the subject of recent disciplinary action. The second respondent was observed to have been disengaged at work after these events. There is evidence from Ms Bicopoulos that the second respondent had decided that childcare was not for her.
On the other hand, while I accept that the second respondent had sought treatment for back symptoms previously, there is no evidence to suggest that the second respondent was experiencing significant lumbar symptoms immediately prior to 29 March 2023. Rather, the evidence indicates that the second respondent had been able to perform the tasks inherent in her role without difficulty for several months prior to the cessation of work.
There is no medical opinion before me to indicate that any symptoms commencing on
29 March 2023 were entirely attributable to the pre-existing condition. Dr Rahmanamlashi’s evidence was that the previous condition had been stable prior to 29 March 2023.
The contemporaneous account of an onset of back symptoms in the context of work on
29 March 2023 in the text message to Ms Gao is, compelling evidence. The next day, the second respondent sought medical intervention, which prompted radiological investigations, which found a pathological explanation for the second respondent’s reported symptoms. Clinical signs on examination were recorded in Dr Rahmanamlashi’s notes. Although the applicant has submitted that the symptoms described to Dr Rahmanamlashi and the radiological findings were not objectively different to those recorded previously, I am not persuaded that this is in fact the case. In the absence of a medical opinion to that effect, I am not satisfied that the applicant’s submissions on this matter ought to be accepted.
No other precipitating event to account for an increase in lumbar symptoms has been identified on the evidence before the Commission. There is no medical opinion to suggest that the increase in symptoms could have been idiopathic.
After carefully weighing the evidence, I am satisfied that the second respondent experienced an increase in lumbar symptoms constituting an aggravation or exacerbation of pre-existing pathological changes at her lumbar spine while at work on 29 March 2023.
Although I am not satisfied that the onset of symptoms was initially as severe as described by the second respondent or that she reported her symptoms during the day, the weight of evidence is consistent with an injury to which employment was a substantial or the main contributing factor. An opinion to this effect was given by Dr Rahmanamlashi. No contrary medical opinion is before the Commission.
I have considered the applicant’s submissions that a deemed date of injury pursuant to s 15 or 16 of the 1987 Act ought to apply and that 29 March 2023 was not the first date of incapacity. While I accept that the injury is in the nature of an aggravation of pre-existing degenerative disease at the second respondent’s lumbar spine, I am not satisfied that it “consists in” the aggravation etc of a disease. The evidence is also consistent with a personal injury occurring on 29 March 2023. In the absence of a medical opinion, I am not satisfied that the date of injury specified in the s 145(1) notice is incorrect.
For these reasons, I am not satisfied that the applicant has discharged its onus of demonstrating on the balance of probabilities that the second respondent did not sustain a compensable injury for the purposes of ss 4 and 9A of the 1987 Act on 29 March 2023.

The extent of incapacity resulting from injury

The rate at which weekly compensation is payable is governed by ss 36 and 37 of the 1987 Act and is determined by whether an injured worker has, in the relevant periods, had “no current work capacity” or “current work capacity”. Those expressions are defined in cl 9 of Schedule 3 to the 1987 Act:
“9      Meaning of ‘current work capacity’ and ‘no current work capacity’
(1)     An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2)     An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
The expression, “suitable employment” is defined in s 32A of the 1987 Act:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a)     having regard to—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b)     regardless of—
(i)  whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”
Deputy President Roche in Wollongong Nursing Home Pty Ltd v Dewar[4] commented in this regard:
“However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that ‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’ (emphasis added).
The word ‘employment’ is not defined in the legislation. Its common meaning is ‘the state of being employed’. However, ‘worker’ is defined. It means, subject to specified exclusions, ‘a person who has entered into or works under a contract of service or a training contract with an employer’ (s 4 of the 1998 Act). In context, the phrase ‘employment in work’, in the definition of suitable employment, ‘in relation to a worker’, must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited.
Therefore, the determination of whether a worker is ‘able to return to work in suitable employment’ is not a totally theoretical or academic exercise and Mason P’s reference to the ‘eye of the needle’ test may still be relevant in many cases. To use his Honour’s example, a labourer who is rendered a quadriplegic may well be able to perform tasks using only his voice. However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.”
[4] [2014] NSWWCCPD 55.
There is conflicting evidence as to the extent of the second respondent’s incapacity during the period from 30 March 2023 to 30 April 2023. Whilst there is no suggestion that the second respondent had capacity to engage in her pre-injury duties at that time, the first SIRA certificate of capacity issued by Dr Rahmanamlashi indicated that the second respondent had capacity to engage in modified duties on a full-time basis.
It was not until 1 May 2023, when the second respondent requested an amendment to the certificate on the basis that her pain had become severe and was affecting her life and mood, that the certification was amended and backdated.
This contradiction in the certificates issued by Dr Rahmanamlashi has not been explained in any report from Dr Rahmanamlashi. Although Dr Rahmanamlashi responded to questions from the insurer on 6 May 2023 indicating that the second respondent was totally incapacitated and would not be expected to return to pre-injury duties for some three to six months, no explanation has been provided as to why the more contemporaneous certification was inaccurate.
In these circumstances, I do not accept that the second respondent had “no current work capacity” in the period up until 30 April 2023. I prefer the more contemporaneous evidence, which indicates that she had capacity to engage in full-time modified duties. Furthermore, the evidence from the applicant indicated that it was willing and able to accommodate any restrictions when the second respondent reported for work on 3 April 2023. I find that the payments of weekly compensation made for the period from 30 March 2023 to 30 Apil 2023 were not in accordance with the 1987 Act.
From 1 May 2023 until the end of the period covered in the s 145 notice the only medical evidence before the Commission is that the second respondent had no current work capacity.
I am not satisfied that the surveillance material recorded in February 2024 is of assistance in determining the extent of the second respondent’s incapacity in the period up until
30 August 2023.
The applicant has also provided evidence suggesting that the second respondent may have been involved in an online business selling ornaments.
I agree with the applicant that the evidence from the second respondent and her husband suggesting that the business was in fact solely operated by Mr Shojael, is improbable. Mr Shojael held a full-time role as a software developer. The Etsy shop identified the second respondent as the owner. The nature of the business was targeted towards mothers.
Even so, while there is evidence that a domain name and company registration were established by Mr Shojael prior to the injury, there is no evidence that the business was being operated prior to 30 August 2023. As a result, I am not satisfied that the evidence relating to the business, Smiley Kiddo, demonstrates that the second respondent had capacity to engage in suitable employment in the relevant period.
Nor am I satisfied that the deposits into the second respondent’s bank accounts demonstrate that she was operating a family day care business, receiving remuneration for work during the period in question or otherwise capable of working in suitable duties.
In view of these findings, I find that the applicant is not required to reimburse the first respondent for payments of weekly compensation made between 30 March 2023 and
30 April 2023.
I am, however, satisfied that the payments of weekly compensation made from 1 May 2023 to 30 August 2023 were in accordance with the 1987 Act. I find that the applicant is liable to reimburse the first respondent the corresponding amount.

Were the medical and related treatment expenses paid in accordance with the 1987 Act?

Section 60 of the 1987 Act provides:
“(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).”
In Diab v NRMA Ltd,[5] Roche DP provided a summary of the relevant principles for determining whether treatment can be said to be “reasonably necessary” as follows:
[5] [2014] NSWWCCPD 72.
“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.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”[6]
[6] At [88] to [90].

Deputy President Roche commented further:[7]
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘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. Dr Bodel and Dr Meakin were both wrong to apply that test.”
[7] At [86].
The submissions made at the arbitration hearing on 8 August 2024 made no real challenge to the reasonableness of the medical expenses paid by the first respondent in respect of the second respondent’s injury. Rather it was suggested that such expenses did not result from a compensable injury under the 1987 Act.
None of the treating expenses appear unusual or inconsistent with the nature of the injury. They consist of fees for consultations with the second respondent’s general practitioner, radiological investigations, physiotherapy, medication and the injection on 8 August 2023.
Having found above that the second respondent did sustain a compensable injury under the 1987 Act, I am satisfied that the medical and related treatment expenses paid by the first respondent were reasonably necessary as a result of that injury and were paid in accordance with the 1987 Act.
I am satisfied that the applicant is liable to reimburse the first respondent the amounts paid for medical and related treatment expenses as particularised in the s 145 notice.

[2024] NSWPIC 498

9 September 2024