Habra v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Habra v Workers Compensation Nominal Insurer (iCare) & Ors [2023] NSWPIC 116
APPLICANT:	Mona Habra
FIRST RESPONDENT:	Fatek Thaer Hekma Azeez T/A Azeez Fresh Fruit
SECOND RESPONDENT:	Workers Compensation Nominal Insurer (iCare)
Member:	Catherine McDonald
DATE OF DECISION:	20 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Alleged back injury as a result of work on a fruit farm; dispute as to the nature of the work; credit; New South Wales Police Force v Winter and Donovan v Secretary, Department of Education and Communities referred to; main contributing factor; AV v AW discussed; assessment of medical evidence; Paric v John Holland (Constructions) Pty Ltd considered; Held – award for the respondents.
determinations made:	1. Award for the first and second respondents.

STATEMENT OF REASONS

BACKGROUND

Mona Habra claims weekly compensation and medical expenses as a result of an injury to her lumbar spine, which is deemed to have been suffered on 25 November 2020.
Ms Habra was referred by Centrelink to APM Employment Services who assisted her to find work with Fatek Thaer Hekma Azeez (Mr Azeez) who traded under the name Azeez Fresh Fruit. Mr Azeez did not hold workers compensation insurance on the date of Ms Habra’s injury so that the Workers Compensation Nominal Insurer has been joined to the proceedings.
Ms Habra commenced work on 27 October 2002 and ceased on 24 November 2020. She claims that the work was heavy and that it aggravated a pre-existing condition in her lumbar spine. She claims that she also suffers a psychological condition – either secondary to her lumbar spine injury or a primary injury as a result of harsh working conditions.
The medical expenses Ms Habra claims relate to the cost of surgery recommended by Dr Abraszko.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was fixed for preliminary conference on 22 September 2022. At that time, Ms Habra’s solicitors had not served the Application to Resolve a Dispute (ARD) on Mr Azeez. Orders were made for service and the matter listed for conciliation conference and arbitration hearing.
At Mr Azeez’s request, the matter was listed for a further conference on 4 November 2022. I was told that Mr Azeez had been provided with a copy of the ARD for the first time on 23 September 2022 and formally served on 11 October 2022. He sought legal advice on the following day. Directions were made for the service of evidence and Ms Habra agreed to attend a medical examination on 2 December 2022.
The conciliation conference and arbitration hearing took place on 14 December 2022 when Mr T Hickey of counsel appeared for Ms Habra, Mr Gaitanis of counsel appeared for Mr Azeez and Ms Goodman of counsel appeared for the Nominal Insurer.
Mr Hickey amended the ARD to:
(a)    discontinue the claim that the applicant suffered injuries to her cervical spine, thoracic spine and left and right knees;
(b)    add to the injury description “and/or a disease injury (s4(b)(i) being a disc protrusion at L4/5”, and
(c)    add after “…maltreatment from her employer” the words “and/or in the alternative the applicant suffered a disease injury to the lumbar spine as a result of the heavy nature and conditions of her employment.”
The parties agreed that Ms Habra’s pre-injury average weekly earnings were $300. They agree that the surgery proposed by Dr Abraszko is reasonably necessary to treat Ms Habra’s lumbar spine condition but they do not agree that it is required as a result of an injury.
It is common ground that Mr Azeez did not hold workers compensation insurance at the time of Ms Habra’s alleged injury but that is not relevant to any issue I am required to determine.
After extensive conciliation, there was insufficient time to hear oral submissions and directions were made for written submissions. Submissions were received in compliance with those directions, the last of them being dated 13 February 2023.
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 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.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether Ms Habra suffered an injury as pleaded, and
(b) whether any injury materially contributed to the need for surgery.

EVIDENCE

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Nominal Insurer’s Reply;
(c)    Mr Azeez’s Reply, and
(d)    Ms Habra’s Application to Admit Late Documents dated 7 December 2022.
There was no oral evidence.
The first description of the injury occurred in the claim form which Ms Habra completed on 11 February 2021, witnessed by a solicitor. The claim form forms part of the ARD. Ms Habra said that the injury was deemed to have been suffered on 24 November 2020. She provided the following description:
“l was forced to do heavy lifting of produce and dirt to be put in a wheelbarrow and trolley which weighed over 25kg. I had to push this on even [sic] surfaces from the greenhouse to the truck in the driveway. I was also required to do heavy labour work in the greenhouse. I had to pick up Zucchini and weed and also had to carry buckets full of zucchini. I also had to pick up cucumber, load cucumbers into the wheelbarrow and transport the cucumber. I was also required to remove old plants and plant new ones. I complained to the supervisors about the heavy lifting and the unsafe work. I told them my back is sore but they did not care. The supervisor told me his back was also hurting and to keep working. I have flashbacks of the workplace & the work I was required to do.”
The description of the injury was “Low Back, both knees, both arms (wrists, elbows and shoulders). My carpal tunnel was made worse. Psychological and flashbacks”. She said that she had “carpal tunnel” but duties at work made it worse. She said that she previously suffered from carpal tunnel syndrome “about five years ago”. She claimed weekly compensation from 25 November 2020 and said that she had reported her injury to “Sair and Amer (the supervisors)”.
Ms Habra prepared two statements for the purpose of these proceedings. The first is dated 5 July 2022. She said she came to Australia from Lebanon aged 15 and had never previously worked, describing herself as a stay at home mother.
Ms Habra said:
“I have previously complained of lower back, mid/upper back and neck pain. I was told I have disc degeneration. I also suffered from joint pain, including to my shoulders, knees and ankles due to arthritis. I was referred to Rheumatologist, Dr Loretta Reiter and remained under her care for several years.”
She said she had also been diagnosed with carpal tunnel syndrome and had previously seen psychologists for depression.
Ms Habra said that on or about 20 November 2020 she slipped in a Westfield shopping centre and suffered some left knee pain and was referred to Dr Walker.
She said that, despite her medical history, the pain was manageable and that she had “fair function” of her body and did not feel debilitated before the injury. She was able to perform all of her household duties and undertake elaborate cooking. She said that she had never previously had pain, weakness, numbness and tingling radiating from her back down her legs.
Ms Habra commenced work because she was asked to do so by Centrelink. She was referred to APM Employment Services and a case officer, Mr Syrif, told her there was a job available and took her to the farm to show it to her, explaining that it was very easy. Ms Habra started work on 27 October 2020, working three days a week and five hours a day for which she was paid $300. The workers were allowed a 30 minute break but she usually only took a 15 minute break because there was too much to do.
Ms Habra said that she worked the first day in the kitchen then worked on the farm and greenhouse. She was required to pick cucumbers and put them in a bucket which involved repetitive bending and twisting. She filled approximately four buckets and estimated that each weighed about 7kg. She then put the buckets in a trolley or wheelbarrow which she pushed for approximately 30 minutes to a truck parked in the driveway. The track to the driveway was uneven and the trolley was heavy and difficult to push.
Ms Habra that she was also required to pick zucchini which involved cleaning the dirt and muddy residue from around the zucchini and she was either on her knees or squatting. She was required to carry buckets of zucchini. She cried “that day” and complained to her supervisor, Ameer, that “this job isn’t for an old woman like me”.
Ms Habra was required to remove old plants which had died and were stuck to mesh on the ceiling of the greenhouse. She was required to reach above shoulder height and remove the stem with force then put it in the wheelbarrow and push the wheelbarrow to a rubbish area. She did this to remove several hundred stems a day and she was also required to “remove old soil and put new soil”. The duties were demanding and Ms Habra found pushing the wheelbarrows especially difficult. She said that she and other workers complained that the work was heavy.
On 24 November 2020 Ms Habra completed her shift and went home with severe lower back pain which radiated down her legs. She also had stiffness in both shoulders, wrists and knees. That night the pain was so severe that she went to the Emergency Department of Liverpool Hospital, experiencing severe low back pain associated with weakness, numbness, and tingling, which radiated down her legs, the right being worse than the left. The next day she went to her general practitioner, Dr Al-Shelh, and told him about the trolleys she was required to push. He referred her back to Dr Reiter and referred her to Dr Abraszko, a neurosurgeon.
Ms Habra underwent investigations and injections in her lower back on 28 April 2021 she was referred to Dr Manohar and to her gynaecologist. She was also referred to a psychologist because she was experiencing intrusive memories of her physical labour during her time at work and the way she was spoken to by her supervisors.
Dr Abraszko has recommended surgery and Ms Habra wants to undergo the surgery because her pain is debilitating.
Ms Habra’s second statement dated 28 November 2022 responded to statements made by other workers. She reiterated that the workers at the farm were pushed and worked under pressure and she was threatened that Centrelink would be told to stop her payments. She denied that the work was easy, estimating that she was required to fill buckets which she estimated weighted 20kg then throw the vegetables onto a table to sort them into trays which could weigh up to 10kg. She had to distribute bags of soil which weighted about 7kg.
Ms Habra disagreed that the trolleys described by another worker, Ms Nonkovski, were those used by her. She said that pushing the trolley on uneven ground was not easy. She agreed that she was not required to bend to pick cucumbers but said she had to reach high or crouch low, noting that she is not tall. She said that she was required to push the trolleys to the sorting tables and load the contents onto the table herself. Because she worked early to avoid the heat, Ms Habra said that “I did everything myself as no one was around”.
Ms Habra said that she was required to carry a bucket to the field to pick zucchini, kneeling and picking them then filling the buckets and carrying the buckets out. She said she never complained that she did not want to pick the zucchinis only that it was hurting her because she could not kneel. She was then required to sit on the dirt to pick out weeds from the ground.
Picking out the dead stems of cucumber plants was not an easy task, Ms Habra said, because the dead plants were tall and had thorns. It was hot and she was not provided with gloves.
Ms Habra denied that the photographs attached to the statements relied on by Mr Azeez depicted the farm when she worked there. She said that the aisles were only the width of the trolley and not as flat. She said that there were tasks to do every day in the six weeks she worked at the farm. She agreed that the work was not urgent but there was a lot of work to do and said she was not allowed to leave before completing her contracted hours. She said that she never mentioned Centrelink to anyone. Ms Habra stressed that she worked for six weeks, not four.
Ms Habra also relies on a single page statement by Faamanatu Taala dated 21 June 2021. Ms Taala said that she saw Ms Habra in the kitchen at the farm for a few hours on her first day and that she was out on the farm for the rest of the day. She said that Ms Habra was a hard worker and did not complain of pain. Ms Taala did the same work which was physically demanding, being required to pick, pack and carry heavy buckets of vegetables and push wheelbarrows carrying vegetables and soil on a rocky and uneven track. She said another worker called Violetta complained about the physical nature of the work. In the second or third week Ms Habra said that her body was very sore, having pains in her lower back, neck and knees. Ms Taala said she did not see Ms Habra at work again after 24 November 2020 and she resigned soon after because the work was hard and heavy.

Mr Azeez’s evidence

Mr Azeez

Mr Azeez provided a statement dated 2 February 2021. He said that he is the owner of Azeez Fresh Fruits and operates as a sole trader. His business is to grow Lebanese cucumbers in greenhouses and supply the vegetables to a wholesaler. At different times of the year he engages people to pick fruit on his farm at Austral and strip the vines after harvest.
Mr Azeez informed APM employment services that he required a person to do the stripping job. Mr Syrif brought Ms Habra to look at the job and she said that she would like to start. Mr Azeez said that the work is simple - to pick the cucumbers when they are ready and to strip the plant back after the harvest. Ms Habra was employed on a part time basis working five hours per day three days a week. He recollected that she came to work on Tuesday, Wednesday and Thursday starting at 7.00 or 8.00am and working till 12 noon or 1.00pm. She was entitled to a 20 minute break during this shift and did not work overtime. She was supervised by Mr Azeez, his father, Thaer Azeez, and Amer Lalo.
For the first two weeks, Ms Habra worked in the kitchen then moved to the greenhouse, sometimes picking cucumbers and sometimes stripping vines. If she found weeds growing between the plants, she was required to pull them out. In the last week, she worked on Monday stripping plants from the wire. She was able to work at her own pace and often allowed to go home early.
Mr Azeez did not know that Ms Habra claimed she was injured until December 2020 when he was contacted by APM and iCare. His father told him that Ms Habra left at the normal time on her last day and did not return. She did not complain of an injury. He said that the task performed on that day was to walk down the aisle of the greenhouse pulling plants off the wire so that someone else could cut the plants off and there was no lifting.

Amer Lalo

Mr Lalo made a statement on 16 November 2022. He is aged 50 and works six days a week at the farm. He co-manages the farm with Mr Azeez’s father. In about 2020 Mr Azeez started to recruit workers with a disability from APM recruitment. He agreed to employ about four to eight workers at a time. Mr Lalo was responsible for providing workers with work that suited them.
Mr Lalo said that there were two experienced farm workers as well as himself and Mr Azeez’s father. Those other workers work full time and their main duties are planting, filling pots with soil and picking cucumbers.
The workers from APM were not experienced in working on farms so Mr Lalo provided them with simple easy tasks to perform, such as picking defective cucumbers, removing dead stems from the pots and placing them on the floor for sweeping, picking cucumbers and zucchini that had reached the required size and placing them in buckets and packing cucumbers into foam boxes. The buckets were all placed on trolleys. Picking was not required every day. He was reluctant for the workers from APM to pick cucumbers because they often made mistakes, in that they picked cucumbers which were the wrong size or damaged plants. About four or five workers worked in a single greenhouse on the same task at the same time whether it was picking, removing dead stems from pots, weeding or sweeping. He managed all of the employees.
Mr Lalo said that Ms Habra commenced on or about 28 October 2020 and that she was frail and had a small frame. He said that he had read Ms Habra’s statement and the way she described the working conditions was not true. He said that, because of her frailty, he asked her to work in the kitchen and loading area to do general cleaning, washing and packing cucumbers into foam boxes, standing at the packing table. She did that for about a week. He remembered that she bought items from home whilst doing that. He did not ask her to go and work in the greenhouses but she said that she wanted to work with the other workers.
Responding to Ms Habra’s statement, Mr Lalo disagreed that short breaks were taken because there was too much work, noting that cucumbers were not picked each day. Most of the picking was done by experienced workers during the prime of the plant to prevent damage by inexperienced workers. Those picked by the other workers, like Ms Habra, were usually those which were damaged or left behind. He was aware that most workers had a disability and they were told to work to their capacity. Mr Lalo said that picking cucumbers did not involve repetitive bending because they grow from pots and are attached to wires. He attached photographs of the cucumber plants and the trolleys, noting that the photographs showed the ground was flat. He said that most of the picking was done standing up.
Mr Lalo said that the workers were not required to push trolleys for 30 minutes. He estimated that they moved the trolleys no more than 50m and the ground was as flat as natural ground can be and is covered with weed mats which make pushing the trolley easier. The ground was “levelled with a laser” when the greenhouses were constructed. Mr Lalo attached an aerial photograph of the farm, depicting the position of the greenhouses along a central driveway and showing the ute that collected the buckets from the entrance of each greenhouse and took them to the loading area. Similarly, Mr Lalo said that the dead stems were taken to the end of the greenhouse near the driveway to be collected in the ute and dumped. He said that Ms Habra was not required to take a wheelbarrow to the rubbish area near the gate –there was no point in a worker spending the time it would take to do that task.
Mr Lalo said that Ms Habra was asked to pick zucchini on one occasion and that she was moved to a different task when she complained. He said that Ms Habra did not complain about pain whilst working though she did complain that she was only working to prevent Centrelink cutting her payments. He said that no other worker complained and that the duties are not strenuous. He said:
“I am really disappointed and upset reading Mona's allegations about how we treated her and other employees. We pride ourselves in respecting everyone at the farm and catering to their limitations. We do not tolerate rude and toxic behaviour against other employees and staff. We know our employees and their limitations and restrictions and cater as much as we can to them.”

In a supplementary statement dated 8 December 2022, Mr Lalo responded to Ms Habra’s supplementary statement. He said that the only trolleys on the farm were those in the photograph attached to his first statement. He denied that workers pushed trolleys to the wooden tables in the loading area, confirming that the buckets were loaded into the ute outside each greenhouse.
In response to Ms Habra’s evidence that she worked in different greenhouses to those shown in the first three photographs, Mr Lalo attached further photographs of other greenhouses at the farm, and confirmed his previous statement that the aisles are a standard width of 1.4m. He noted that the photographs showed smooth floors and said the trolleys would sometimes roll on their own. The ground had been compacted and there was no soil or pebbles. He attached further photographs of greenhouses with the weed mat lifted back and they appear to show firmly compacted earth underneath.
Mr Lalo stressed that Ms Habra was not required to carry bags of soil and said that there were no bags of soil in the greenhouses. The plastic pots are filled and the seeds planted by experienced full time workers. Mr Lalo denied that he argued with another worker and gave them hard tasks to do. He said that Ms Habra and other workers were allowed to go home early if there were no tasks to do. He denied threatening workers that he would call Centrelink and ask that their payments be stopped.

Antoun Shammo

Mr Shammo signed a statement on 10 November 2022. He is now aged 66 and he suffers from medical conditions. He was referred to APM from Centrelink. He went to the farm and met Mr Lalo who told him that the work involved picking cucumbers, stacking them in boxes and cleaning the greenhouses. He worked there for about six months until October 2020 when only cucumbers were planted though he was aware that zucchini were grown outside.
Mr Shammo’s duties were to clean the greenhouses by sweeping, weeding the pots in which cucumbers were growing and picking cucumbers and placing them in buckets which were already placed on the trolley. Once the buckets were filled Mr Shammo pushed the trolley to the outside of the greenhouse. He was required to pick defective cucumbers and place them in buckets. At the end of the day he saw other men - who worked in the loading dock - load the buckets into a ute which was driven about 30m to the loading dock. The trolley was not heavy when being pushed and the ground was not uneven, being covered with black material. He was allowed to perform the work at his own pace. He described the farm as immaculate.

Violetta Nonkovksi

Ms Nonkovksi is aged 61 and also suffers from medical conditions. She met Mr Lalo at the farm and he told her that everyone who works there has some sort of disability or physical restriction and that everyone does as much as they can without pressure. She worked there for six months from October 2020 to April 2021, working five hours a day three days per week. She said that at least eight other people worked at the farm and most were older or had a disability. She said that Ms Habra and Ms Taala worked there.
Her duties were to work in a team and to pick cucumbers which grew vertically on wires. She said that made picking easy because she did not have to bend down. She was required to push a trolley containing buckets in the aisles in the greenhouse and pick cucumbers, placing them in the buckets which were already on the trolley. When the buckets were full, she took the trolley through the main door of the greenhouse and placed the buckets at the front where they were collected. Ms Nonkovski said that they trolleys were easy to push and the ground in the greenhouse was covered in black plastic.
Ms Nonkovski was also required to sweep the greenhouses and to clean the loading dock and the kitchen area by sweeping it or washing dishes in the sink. She was required to remove dead cucumber stems and place them on the trolley. This task was easy because the dead stems were easily pulled from the pot. They were placed at the front of the greenhouse to be loaded into a ute and taken for dumping.
Ms Nonkovski said that Ms Habra only worked at the farm for about three or four weeks but they often worked on the same days. She was provided with a copy of Ms Habra’s statement. She agreed that they were allowed a half hour break but were also told that they could take breaks on an as needed basis. There was never so much work that breaks were reduced. Ms Nonkovski often took her break at the same time as Ms Habra and they always took the half hour break in full and sometimes more because no one pushed them. She disagreed with Ms Habra’s description of the duties – in particular she said that the workers were not required to lift the buckets and not required to push trolleys for long distances. She said that it would take only one or two minutes to take the trolley to the entrance to the greenhouse, not 30 minutes.
Photographs of a trolley and a typical greenhouse are attached to Ms Nonkovski’s statement. She said she was present on the day Ms Habra picked zucchini. Soon after Ms Habra commenced, she complained to Mr Lalo, saying that she did not like picking zucchini and Mr Lalo immediately sent her to the loading dock to pack cucumbers into boxes while seated. Ms Nonkovksi said that she took over picking the zucchini and the task was easy to perform. She also said that picking dead cucumber stems was easy and she attached a photograph of the dead stems. She said that the workers were told to work as tolerated and not to put pressure on themselves. She recalled that Ms Habra was always complaining about the duties and said she was only working to continue receiving Centrelink payments. She did not witness Ms Habra complaining about pain but she did complain that she did not like the work.
Ms Nonkovksi signed a further statement dated 8 December 2022 in response to Ms Habra’s statement. She confirmed that all trolleys given to the workers were the same as the one in the photograph attached to her statement and that the ground in the greenhouses was flat. Despite Ms Habra not remembering her, Ms Nonkovksi said that she clearly remembered Ms Habra, providing examples of their interactions, including that Ms Habra was happy to be asked to pack cucumbers rather than pick zucchini.
She spoke well of the management at the farm and said that she had not been in contact with them after leaving in April 2021 before being asked to prepare her statement.

Medical evidence

Ms Habra’s current general practitioner is Dr Al-Shelh from Liverpool Healthcare Medical Centre. The notes from that practice begin on 10 May 2016 when Ms Habra consulted Dr Chahoud complaining of back and joint pain. On 10 and 17 May 2016 Dr Chahoud noted that Ms Habra had pain in all her joints. On 30 May 2016 Dr Chahoud noted “lower back disk” and “3 disk lumbar”. She told Dr Chahoud again about back pain on 13 July 2016 and counselling was provided for depression on the following day. Celebrex was prescribed.
Ms Habra first saw Dr Al-Shelh on 4 August 2016 and from October 2016, saw him roughly twice a month for a variety of conditions, many of which are described as causing pain and resulted in the prescription of medication. There are no other specific references to low back pain in the brief consultation notes, though Dr Al-Shelh diagnosed disc degeneration and major depression on 15 March 2017.
On 8 November 2017 Dr Al-Shelh wrote that he discussed “all issues related to her maladies. Unfit for any type of work or training”.
The notes contain details of the extensive gynaecological treatment Ms Habra has undergone. In 2018 she was treated by Dr Hawke and complained of some urinary urge incontinence. She told Dr Farjo in 2018 that she suffered bladder frequency, urgency and urge incontinence about three times per week.
Dr Al-Shelh did not provide a diagnosis in respect of some of the consultations though prescriptions for Celebrex and Lyrica were provided. On 25 August 2020 he saw Ms Habra for a team care plan review. The notes include “oa lbp”, an abbreviation commonly seen by the Commission in medical notes referring to osteoarthritis and low back pain. Dr Al-Shelh also discussed Ms Habra’s knees and advised her on walking daily. Celebrex was prescribed on 8 September 2020 with no specific reason given for the consultation.
Ms Habra complained of neck pain on 14 and 16 October 2020 and was referred to Dr Rozario and to Dr Reiter.
On Saturday 21 November 2020 Ms Habra told Dr Al-Shelh that she has slipped on “ice wet ground” in Westfield. He noted that she had medial pain and a “joint effusion” and he ordered an X-ray of her left knee.
Ms Habra went to the Emergency Department of Liverpool Hospital on 24 November 2020. The discharge referral said that she was pushing a trolley of sand at work today and suffered back pain. The document in the ARD appears to be incomplete and it does not appear elsewhere in the file. It includes:
“Nil shooting pain down legs, nil changes to sensation, no pins or needles
denies changes to bladder/bowel
pain improved with endone administered by NS
mobilising independently
on b/g OA normally managed with celebrex and panadol osteo
known to Rheumatologist Dr Loretta Reiter for OA.”
On the following day, Ms Habra saw her general practitioner, Dr Al-Shelh and said that she was pushing a trolley, that she complained about the work duties and was forced to continue. He noted paraspinal pain with normal reflexes and no sciatica. She had a reduced range of movement and was unable to bend. He referred Ms Habra to Mr Moutsallem for physiotherapy and to Dr Reiter. He provided a referral to Dr Abraszko on the following day.
Dr Al-Shelh prepared a certificate of capacity on 25 November 2020. He said that Ms Habra suffered severe lower back pain after pushing a trolley at work which caused severe soft tissue damage on a background of previous osteoarthritic changes.
A CT scan of the same day was reported by Dr Sunner as showing:
“There is marked loss of disc height at L5/S 1 and there is 14mm (Grade II) anterolisthesis of L5 on S1 secondary to bilateral L5 pars interarticularis detects. There is no other spondylolisthesis. There is mild loss of disc height at the remainder of the disc levels which is most pronounced at L4/5. Vertebral body heights are preserved. There is mild anterior vertebral body osteophytic lipping along the lumbar spine.
…
There is Grade II anterolisthesis of LS on S1 with marked loss of disc height secondary to bilateral pars interarticularis defects. There is resultant bilateral LS/S1 foraminal narrowing, potentially causing irritation of the exiting nerves, worse on the left.”
Mr Moutsallem’s initial report with respect to physiotherapy goals is dated 30 November 2020. He recorded that Ms Habra worked for three days the first week with no pain and in the second week she reported increased lumbar spine pain as a result of prolonged squatting and kneeling over removing grass from between the vegetables, holding 20kg buckets of vegetables and pushing a wheelbarrow. His provisional diagnosis was acute discogenic lumbar spine pain with somatic referred pain down both legs, directly related to the work injury. He proposed treatment on a weekly basis. There are no other reports from Mr Moutsallem in the file.
In December 2020 Dr Al-Shelh referred Ms Habra to Dr Walker in respect of her left knee. A report from Dr Walker dated 22 February deals only with her left knee. He said that Ms Habra was keen to get costings for surgery but that no surgery would help her at that point. He also noted that she had significant “pain issues.”
Dr Al-Shelh’s notes in the ARD end on 23 March 2021 and contain reference to other conditions as well as references to back and knee pain.
Dr Al-Shelh wrote to Ms Habra’s solicitors on 15 July 2021 and said:
“Thank you for reviewing Mrs Mona Habra case with ICARE Insurance Claim 2020201214
in the statement that rejected the injury claim and received from ICare in which stating in page 3
Dr Al-Shelh indicated in his clinical notes the phrase ‘Extensive history of dics degeneration’. This is not accurate statement of my my clinical notes and no word in my notes mention the word ‘Extensive’.
The Neuropathic Pain in my notes was not related to her back but for another Gyno logical problems Mrs Habra was experience 3 years ago and she was fully recovered form this. If Care checked the clinical notes properly, then they should Not refer the neuropathic pain to her back at all.
Her back pain of chronic nature was intermittent and infrequent and was full mobile and pain free prior to the injury sustained 25 November 2020.” [sic]

Dr Abraszko

Dr Abraszko saw Ms Habra for the first time on 25 February 2021. She recorded the following history:
“On 25 November 2020, when she was five weeks into the job, she was carrying a heavy sandbag and put them on a trolley or wheel bar to move them by push. While she was doing that she felt a pain in her lower back and couldn't move.
She had never experienced any previous injury to her back, neither suffered back pain.
She went to Liverpool Hospital emergency where she stayed for five days. She saw the doctor on 25 November, had physiotherapy and pain medication. She still has significant pain, which radiates to both sides.”
Dr Abraszko considered it likely that Ms Habra had aggravated pre-existing spodylolisthesis which had been asymptomatic until then and recommended an MRI scan.
In response to a request from the Nominal Insurer, Dr Abraszko prepared a report dated 26 March 2021. She diagnosed low back pain and right leg pain, due to L4/L5 disc protrusion and L5/S1 grade 1 spondylolisthesis due to the congenital L5 pars defect. Dr Abraszko said that the injury was caused when Ms Habra was carrying a heavy sandbag and put it on a trolley or “wheel bar” [sic] to push it. While doing that she felt pain in her lower back and could not move. She had never experienced any previous injury or back pain and in particular she had never experienced back pain which required her to go to the doctor. When specifically asked about Ms Habra’s history, Dr Abraszko said that she was unaware of previous injuries and that Ms Habra had denied it in the questionnaire she completed. She did not know why Ms Habra had been referred to a rheumatologist and said that the injuries were consistent with the duties of a fruit picker.
A multipostional MRI scan was undertaken on 6 April 2021 and reported by Dr Lee. His conclusion was that there was anterolisthesis secondary to L5 pars defects. There was severe foraminal stenosis, more marked on the left. He observed an “L4/5 broad herniation accentuated by extension.”
Dr Abraszko saw Ms Habra again on 22 April 2021 and said in her report to Dr Al-Shelh that the MRI scan showed an L4/L5 disc bulge which was a direct result of the work injury. She said:
“This disc is causing moderate canal and foraminal stenosis. At L5-S1 level, there is a preexisting 9 mm anterolisthesis secondary to L5 pars defect and foraminal stenosis at L5-S1 and L4-L5 level, worse on the left side. This was previously asymptomatic, and she sustained aggravation to the previously asymptomatic spondylolisthesis. The aggravation then may become permanent. Therefore, we are asking insurance company for approval of two injections, diagnostic steroid injections. First one to the L4-L5 epidural space to assess how much pain is causing by L4-L5 disc. Secondly, the L5-S1 facet joint to assess how much pain is coming from L5-S1 facet joint. I will review her after the injections.”
On 10 June 2021 Dr Abraszko noted that surgery would be a L4 to S1 fusion but that Ms Habra did not want to think about it at that time. Dr Abraszko recommended pain management with Dr Manohar.
Dr Manohar reported to Dr Abraszko on 22 June 2021 and recorded that:
“She was asked to weed zucchini patches and to pick up the zucchini. This required her to place as zucchini in a bucket and carry the bucket to the packing section of the farm. This was heavy work and involved prolonged walking repetitive bending and lifting activities.
She developed low back pain. With increasing back pain, she consulted her family physician, Dr AI-Shelh.
She then was seen at the Liverpool Hospital Emergency Department where she stayed for 5 days.”
Dr Manohar said that a plan of management would be proposed once Ms Habra’s claim had been accepted.
Ms Habra returned to Dr Abraszko on 2 December 2021 and said that she now had difficulties walking due to pain. Dr Abraszko said that Ms Habra required lumbar decompression and fusion, most likely from L4 to S1.
Dr Abraszko prepared a report dated 30 November 2021 [sic] in which she said she had seen Ms Habra on the occasions set out above and 27 January 2022. She repeated the history in her first report. She said that an MRI scan showed an L4/5 disc bulge which was a direct result of the injury. Her diagnosis was:
“Mrs Habra provided consistent history with radiological investigation and neurological findings. As a result of injury at work on 25 November 2020 she suffered from injury to the L4/ L5 disc and aggravation of her L5-S1 previously asymptomatic spondylolisthesis. This aggravation has now become permanent.
Her work was substantial contributing factor to her injury and to the aggravation of her previously asymptomatic L5/Sl spondylolisthesis.
....
He [sic] injuries were caused by her work and mechanism of the injury is consistent with Mrs Habra's description of the injury.”
When asked if the injury had materially contributed to the need for surgery, Dr Abraszko said:
“Her workplace injury materially contributed to the need for the surgery since she was completely asymptomatic prior the injury. She was diagnosed in 2017 with lumbosacral disc protrusion which is mentioned in the referral from her General Practitioner, however she had no symptoms from her lower back prior the injury at work. She would not have accepted a job as a pick and packer, if she had suffered constant back pain.”
On 2 December 2021 Dr Abraszko wrote to Dr Al-Shehl and said that Ms Habra had significant difficulties walking due to pain. She recommended lumbar decompression and fusion, most likely from L4 to S1.
In a supplementary report dated 17 June 2022, Dr Abraszko responded to a question as to whether employment was the main contributing factor to Ms Habra’s condition. She said:
“Ms Habra suffered on 25 November 2020 injury at work [sic], resulting in the injury to the L4/L5 disc (new injury) and aggravation of her L5-S1 previously asymptomatic spondylolisthesis. This aggravation has now become permanent.
She had never experienced any previous injury to her back, neither suffered back pain prior the injury at work on 25 November 2020.
On 25 November 2020 she was working as a labourer and her job required her to perform cleaning, picking and packing and pushing bags weighing about 25 kg.
On this particular day Mrs Habra was carrying a heavy sandbags to put them on a trolley or wheel bar. While she was carrying heavy sandbags, she felt a sudden onset of severe back pain. Pain was so severe she could not move and was located in the lower back.
Due to severity of her pain she went to the Emergency Department of the Liverpool Hospital. She told me that she was admitted to the hospital where she stayed for five days. She was discharged home under the care of her local doctor.
As a result of lifting and twisting movements of her lumbar spine she sustained he [sic] injury to the L4/15 disc and aggravated previously symptomatic L5/s1 spondylolisthesis. The mechanism of the injury DESCRIBED BY Mrs Habra is consisted with the injury to the L4/L5 disc and with aggravation of LS/S1 spondylolisthesis.
Her work a significant contributing factor to the injury of L4/L5 discs and to the permanent aggravation of her previously asymptomatic L5/S1 spondylolisthesis causing bilateral L5 radiculopathy.”

Dr Reiter

Dr Reiter, rheumatologist, began to see Ms Habra in 2007 at the request of Dr El-Kateb. Her first report is dated 18 April 2007 and described intermittent pain in Ms Habra’s hands, elbows, lower neck and knees. She had a five year history of pain effecting her lower cervical and upper thoracic spine which was exacerbated by housework. Dr Reiter considered that her neck pain was due to cervical spondylosis. That diagnosis was confirmed by a cervical spine X-ray. A bone scan dated 15 May 2007 showed evidence of mild to moderate degenerative disease affecting her hands, feet, knees, neck and lower back.

On 25 June 2007 Dr Reiter wrote to Dr El-Kateb, noting the results of the bone scan.
On 25 May 2009 Dr Reiter saw Ms Habra about ongoing pain in her neck, upper limbs and knees. Dr Reiter prescribed Celebrex and reviewed Ms Habra on 26 October 2010 and 8 November 2011. In her report dated 26 October 2010 she noted that the pain in Ms Habra’s hands was aggravated by housework.
A bone scan report dated 29 November 2011 noted intervertebral arthropathy throughout the spine particularly at L5/S1 level in the lumbar spine. On 6 December 2011, Ms Habra complained of generalised pain affecting her cervical, thoracic and lumbar spine. By 16 October 2012, Ms Habra had a significant increase in cervical and thoracic pain. Dr Reiter saw her again on 9 October 2013.
An X-ray report in Dr Reiter’s notes dated 4 December 2015 is addressed to Ms Habra’s former general practitioner, Dr Elkateb, and recorded:
“…marked disc space narrowing at the L5/S1 level. There are bilateral L5 pars defects with grade 1 spondylolisthesis of L5 on S1 with forward slippage of L5 by approximately 15 mm.
Small anterior and plate osteophytes are present in the remaining vertebral bodies…
There is also a mid to lower lumbar scoliosis convex to the right.
Further assessment of the L5 and S1 vertebral body levels as recommended with a lumbar spine CT scan.”
On 6 January 2016, after a consultation in December 2015, Dr Reiter noted that Ms Habra had:
“continued to suffer with severe pain affecting her cervical, thoracic and lumbar spine with intermittent flare ups of either right or left-sided neck pain, as well as right lower back pain.”
Dr Reiter recorded marked tenderness in the whole of Ms Habra’s spine with pain in the left lumbar area with left lateral flexion. Dr Reiter considered that Ms Habra had ongoing pain due to cervical, thoracic and lumbar spondylosis. She said that the severity and extent of Ms Habra’s symptoms meant that she could only sit, stand or walk for a maximum of 15 minutes at a time and that she was not fit for work.
A bone scan report dated 12 January 2016 said that scan appearances were consistent with degenerative polyarthropathy including “mild lumbar facet joint arthropathy in the left L2/3, bilateral L3/4, and L4/5 (left>right) facet joints”.
On 19 April 2017 Dr Reiter noted that Ms Habra had not returned to see her since December 2015 despite the treatment she proposed for pain affecting multiple joints and a concern that Ms Habra suffered an “inflammatory/autoimmune component to her joint symptoms”. On that occasion, Ms Habra’s worst pain was in her cervical spine and she was taking Celebrex. On 17 May 2017 Dr Reiter noted that Ms Habra was now seeing Dr Al-Shelh and summarised her treatment, noting that Ms Habra suffered cervical, thoracic and lumbar spondylosis and facet joint disease as well as L5/S1 spondylolisthesis. Dr Reiter described only changes in medication in two further reports in 2017.
On 17 October 2018 Dr Reiter noted that Ms Habra’s main issue was right knee pain. Dr Reiter did not review Ms Habra again until 9 November 2020 when her main issues were cervical and thoracic pain. She referred Ms Habra for a bone scan which was undertaken on 13 November 2020 and showed “mild osteoarthritis in the L5/S1 of the lumbar spine, probably in the sacroiliac joints, which are unchanged from the previous study”.
The last consultation recorded in Dr Reiter’s notes was on 7 December 2020 when Ms Habra said she had started work and had experienced increased lower back pain for two weeks, radiating from the thigh to the knee. Dr Reiter referred Ms Habra for an MRI scan and a bone scan and requested that she return in two weeks. There is no evidence that Ms Habra did so and there is no contemporaneous report of a bone scan in the file.

Previous general practitioner

The notes from Ms Habra’s previous general practitioner, Dr Elkateb, appear in Mr Azeez’s Reply. The handwritten consultation notes begin in 1982 and are illegible but appear to record regular - roughly monthly - consultations until 2017.
The reports included with Dr Elkateb’s notes show that Ms Habra was referred to a rheumatologist, Dr Patapanian, in November 1992 but saw Dr Lassere because Dr Patapanian was overseas. Dr Lassere noted Ms Habra had intermittent soreness of the back, neck and low back for several months, including pain which occasionally radiated down the left anterior leg to the foot. An X-ray of the spine dated 5 November 1992 showed spondylolisthesis of L5/S1, grade 1 and slight narrowing of the lumbo-sacral disc space.
Dr Patapanian saw Ms Habra on 18 January 1993. He said that her X-rays revealed mild L5/S1 spondylolisthesis due to disc failure and her dominant symptom was low back pain.
Ms Habra was referred to another rheumatologist, Dr Marabani, in March 1993 who recorded a history of left sided low back pain for about the last 12 months. Ms Habra complained of numbness affecting the whole left leg, that she had difficulty walking and said that her husband did most of the household tasks. Dr Marabani said that Ms Habra was unable to stand long enough to allow her to formally test spinal movement. X-rays showed a mild rotational scoliosis with pars interarticuaris defects at L5 and a grade 1 spondylolisthesis at L5/S1. The lumbo-sacral disc space was narrowed. Dr Marabani recommended a CT scan to eliminate a disc lesion.
A CT scan dated 20 March 1993 confirmed the spondylolisthesis but found no disc protrusion, spinal stenosis or sequestrated disc fragment. Dr Marabani recommended physiotherapy, a lumbar corset and regular analgesia.
Ms Habra saw Dr Ali, psychiatrist, on May 1993 who diagnosed panic attacks as a result of family issues.
Dr Elkateb’s notes contain reports from numerous specialists to whom Ms Habra was referred for a variety of other medical problems. Ms Habra saw Dr Marabani in 2006 who declined to see her again when she failed to keep appointments. Dr Elkateb then referred Ms Habra to Dr Reiter.

Medico-legal reports

Dr Dias

Dr Dias, occupational physician, saw Ms Habra at the request of her solicitors on 30 July 2021. He saw a range of medical reports, including some investigations and reports from Dr Reiter which pre-dated the injury. He obtained a history consistent with the statement on which Ms Habra relies. He noted that Ms Habra had a long history of symptomatic osteoarthritis, including in her lumbar spine and that she had suffered low back pain for 15 years. Ms Habra told Dr Dias that she had occasional intermittent lower back pain before commencing work with Mr Azeez and that the symptoms worsened after she started. Dr Dias said:
“Ms Habra recalls that the inherent physical demands of her job role, which included repetitive bending and twisting of the lower back, repetitive heavy lifting, repetitive heavy pulling and pushing, prolonged kneeling, squatting and crouching and repetitive overhead work, resulted in worsening symptomatology in her lower back particularly and to a lesser extent in her neck, upper back and right and left knees. She began experiencing pins and needles and numbness radiating down her right and left lower limbs (she had never experienced lower limb radicular symptomatology previously).”
Dr Dias recorded the fall in the shopping centre on 20 November 2020 when Ms Habra injured her left knee.
Dr Dias noted Ms Habra’s gynaecological history, including significant surgery, but said that she had not experienced significant urinary incontinence until her lower back pain worsened in November 2020. Dr Dias also noted that she had suffered symptoms of depression and anxiety for over 30 years though considered that her mental health was stable before commencing work.
Dr Dias made a series of diagnoses which are not relevant to the claim as amended. He said:
“Ms Habra has sustained a persistent aggravation of pre-existing degenerative lumbar spondylosis, with associated bilateral L5 radiculopathies, secondary to disc protrusions at the L5/S1 and L4/L5 levels, and a grade 2 L5/S1 anterolisthesis (on a background of bilateral L5 pars interarticularis defect)”.
When asked if employment was the main contributing factor to the injury or to the aggravation of a pre-existing condition, Dr Dias said:
“In my opinion Ms Habra’s employment is the main contributing factor to the aggravation, acceleration and exacerbation of a pre-existing condition of degenerative lumbar spondylosis, as well as her pre-existing conditions of degenerative cervical spondylosis, degenerative thoracic spondylosis and bilateral knee patellofemoral arthritis. Ms Habra does have a documented history of osteoarthritis affecting her neck, thoracic spine, lumbar spine and right and left knees. Prior to the commencement of employment with Azeez Fresh Fruit, her symptomatology was more severe in her neck and to a lesser extent her upper back and right and left knees, and her symptoms of pain in her lower back were relatively mild and intermittent. As a result of the nature and conditions of Ms Habra’s employment, which involved repetitive bending and twisting, repetitive heavy lifting, repetitive heavy pulling and pushing, prolonged kneeling, squatting and crouching and repetitive overhead work, Ms Habra has sustained a persistent aggravation of her preexisting degenerative conditions, an aggravation which has persisted through to the present day, since the cessation of her employment with Azeez Fresh Fruit on 24th November 2020. Based on the available evidence and after my assessment of Ms Habra on 30th July 2021, in my opinion 90% of Ms Habra’s symptomatology, disabilities and impairments with respect to her lumbar spine condition, relates to the nature and conditions of her employment with Azeez Fresh Fruit. 10% of Ms Habra’s symptomatology, disabilities and impairment with respect to her lumbar spine condition relate to her pre-existing degenerative condition affecting her lumbar spine.”
Dr Dias recommended that Ms Habra be referred to an independent gynaecologist/urologist for diagnostic clarity and an opinion on causation, noting that she attributed urinary incontinence to her symptoms of discogenic lower back pain.

Dr Rosenberg

Dr Rosenburg, orthopaedic surgeon, also examined Ms Habra at the request of her solicitors. He reported on 29 March 2022. He recorded that she was working in a fruit market on a farm. The work was heavy, particularly for a woman of Ms Habra’s age, and physically demanding and involved bending, lifting, twisting and pushing buckets in a trolley. Dr Rosenberg summarised the history of treatment and considered that Ms Habra’s condition was unlikely to improve without surgery.
Dr Rosenberg noted Dr Abraszko’s diagnosis of a new injury to the L4/5 disc and said that “in all likelihood” Ms Habra sustained an L4/L5 disc injury and “stirred up” her pars defects as a result of the nature and conditions of her work. Dr Rosenberg said:
“I believe her employment is the main contributing factor. I suspect she would have had some pre-existing bouts of back pain but these were always manageable and she never had complaints with leg pain.”
He said that the injury materially contributed to the need for surgery and that Ms Habra was unfit for work.

Dr Sheehy

Dr Sheehy, neurosurgeon, examined Ms Habra at the request of the Nominal Insurer and reported on 7 May 2021. He recorded that Ms Habra’s duties at the fruit farm involved carrying containers of cucumbers. She had been working for a month and had never previously had employment. On 25 November while repetitively lifting buckets of cucumbers she developed pain in low back. Dr Sheehy recorded:
“She complains of intractable low back pain and of being unable to do any domestic activities. Shopping is impossible. She cannot sit for prolonged periods. She complains also of bilateral leg pain. She states that she was quite normal before the injury described in November 2020 and that she was able to undertake all of her usual domestic duties and attend shopping with her husband.”
Dr Sheehy reviewed the reports of the CT scan dated 25 November 2020 and the MRI scan dated 7 April 2021. He noted Dr Reiter’s report dated 6 January 2016 and said:
“I have discussed these findings with Ms Habra. She stated that while she had been symptomatic in 2013 and 2016, symptoms had completely settled, and she had been able to undertake all of her usual domestic duties until the time of the injury occurring on 25 November 2020.”
When answering a series of questions as to diagnosis and causation, Dr Sheehy said:
“Symptoms commenced after the lifting injury in November 2020 and are due to an aggravation of an underlying congenital pars defect with associated spondylolisthesis.
…
The aggravation of the underlying spondylolisthesis occurred on 25 November 2020 as a consequence of a lifting episode.”
Dr Sheehy said that the management of Ms Habra’s condition was usually conservative though instrumented spinal fusion at the lumbosacral junction is an option if pain becomes intractable.
Dr Sheehy was provided with additional documents dating back to 2007 and prepared a further report dated 6 July 2021. He said that Ms Habra had an extensive history of spinal pain managed by a rheumatologist and that Dr Reiter’s reports described extensive multifocal joint disease. He said:
“She had not complained of bilateral leg symptoms to any of the previous treating practitioners that I have been able to identify in the correspondence that you have kindly provided. While there is a pre-existing condition of the lumbar spondylolisthesis, the incapacity developed during the period of her employment at the fruit farm and therefore the incapacity for employment is related to the injury which is an aggravation of a pre-existing condition.”
Dr Sheehy prepared a third report dated 13 December 2021. He said that if the employer’s history that there was no heavy lifting and bending and no notification of a specific incident was accepted, then Ms Habra did not suffer an injury and her symptoms would be related to the pre-existing condition for which she has consulted Dr Reiter.

Dr Allen

Ms Habra saw Dr Allen, orthopaedic surgeon, at the request of Mr Azeez’s solicitors and he prepared a report dated 9 December 2022. He said that Ms Habra claimed to be unable to speak English though was able to express herself clearly and coherently, though an interpreter was present and assisted from time to time. Dr Allen said that his assessment was difficult because Ms Habra “presented in a hostile manner with significant abnormal illness behaviour, obfuscation, and contradicted the medical information available”. He said that the marked abnormal illness behaviour made the clinical examination impossible. Dr Allen said:
“Ms Habra denied any prior history of symptoms in her cervical spine, thoracic spine, lumbar spine or her knees. When questioned about this she repeatedly denied that she had ever had any problems in her lower back.
She was shown medical records and radiographic scans of her lumbar spine dating as far back as 1992 and denied that they were related to her, that she had ever had the investigations or that she ever knew the doctors who had undertaken them. ‘That is my husband’s doctor’, and similar responses were given.”
Dr Allen obtained the history that Ms Habra suffered injuries to her cervical spine, lumbar spine, thoracic spine and both her knees on 24 November when she pushed a trolley which was full of sand. She told Dr Allen that pushing the trolley caused all of her symptoms.
Dr Allen said that surgery cannot be justified on the basis of any work injury but it would be for the treatment of Ms Habra’s longstanding pars defect and spondylolisthesis which was documented initially in 1992. He said that, at the very most, she may have had a transient exacerbation of symptoms which would be likely to pass within six weeks at the most.
Dr Allen was unable to conduct a physical examination. He reviewed investigations going back to 1992. He said that Ms Habra “appeared to deny” that she had long-standing arthritis affecting multiple joints and continued to assert throughout the consultation that she had never had a problem before the incident on 24 November 2020.

Psychological injury

Ms Habra alleges that she suffered a psychological injury – either a primary injury as a result of her treatment at work or the aggravation of a pre-existing condition.
Dr Bisht prepared a report at the request of Ms Habra’s solicitors dated 12 October 2021. He obtained a history of the physical injury in that Ms Habra was required to pick cucumbers from the greenhouse and put them in a bucket then place four buckets on a trolley and push it for 30 minutes to a truck in the driveway. She was required to pick and carry zucchini to trucks in buckets on a trolley and to remove old plants from the ground and carry them to the rubbish bin using the trolley. The work was physically demanding and she was unable to work after 24 November 2020. Despite treatment, Ms Habra continued to suffer pain due to her back injury. She was disappointed with her employer because she had complained several times about the impact of the work but her employer had not heeded her complaints. Her psychological condition deteriorated after the physical injury. Dr Bisht noted that Ms Habra’s current functioning was significantly constrained by the injury. He said she has “not been able to return to any other form of work, due to a lack of trust in employers, poor concentration, and low energy”. She told him that she had depression 12 years ago but at that time it was not severe.
Dr Bisht noted that Ms Habra had seen “her psychiatrist” only twice due to COVID lockdowns and the denial of the claim and that she had not seen a psychologist. He described his mental state examination in detail. He said that Ms Habra presented as an elderly female of stated age (despite her being only 62). He said that her affect was anxious and she focussed on themes of apprehension about the future. Her long and short term memory was impaired but that she had a reasonable insight into her illness and the need for treatment. Dr Bisht diagnosed major depressive disorder, which was a combination of primary psychiatric injury resulting from maltreatment by her employer as well as a secondary injury resulting from the physical injury. He considered that employment was the main contributing factor to her condition because there were no nonwork related psychological stressors around the time of onset and there was no pre-existing psychiatric condition.
Dr Bisht said that he had reviewed a series of documents including “GP Medical Records” without identifying those documents further.
Dr Al-Shelh referred Ms Habra to a psychologist, Ms Zaanour, on 15 February 2021. The referral notes that the past history included major depression and disc degeneration as early as August 2016. It also included major depression on 15 March 2017 and lumbosacral disc disease on 30 September 2017.
Ms Zaarour prepared a progress report on 3 May 2021 when she said that Ms Habra was suffering from major depression with severe levels of anxiety and distress. Based on the assessment and consultations, it appeared that her psychological issues have been triggered by workplace injuries and that “it is believed that the client experienced excessive physical and psychological damage during the few days she was assigned at the job site”. She said that the report of chronic pain caused her to feel severely depressed and anxious. She proposed cognitive behavioural therapy.
Ms Zaarour’s notes for 3 May 2021 say that Ms Habra had never seen a psychologist before. Ms Habra saw Ms Zaarour again on 21 June 2021 and said that her case had been closed and her “employer denying he sent her to work on the farm”. She also said “had arthritis before, now worse”.
The Nominal Insurer referred Ms Habra to Dr Teoh who reported on 1 June 2021. Ms Habra told him that she had worked on fruit farm for a month, picking weeds and carrying zucchinis and cucumbers. She sustained a back injury when she had to carry a bucket of cucumbers which was more than 15kg and she had to push trolleys filled with sand. He set out the history he obtained:
“She said that she cannot prepare meals or do housework. She cannot stand for long periods of time, and she has been dependent on her husband. She has reduced mobility and restricted movements.
She reported insomnia and a preoccupation with negative thoughts, including her pain. She reported depressed mood, and she has been worried about her future and her physical condition.”

Dr Teoh noted that Ms Habra had been referred to a psychiatrist whom she had seen for two sessions but had not been prescribed any medication. He said that she initially denied a past history of psychiatric illness but when he clarified her history, she said that she had major depression in 2016. Dr Teoh noted that Ms Habra minimised her past history during the interview. He said that she had a history of arthritis for which she had been treated with Celebrex and Endone.
Dr Teoh said that Ms Habra’s presentation was not consistent with a psychiatric diagnosis under DSM-V diagnostic criteria. She reported emotional distress secondary to her chronic pain and physical disability which has not reached the threshold for a psychiatric diagnosis. Dr Teoh read Ms Zaarour’s report and said that Ms Habra did not report to him the symptoms that Ms Zaarour had recorded. Dr Teoh said Ms Habra had pre-existing major depression and that she had minimised her past psychiatric illness and physical condition.
The reports in the file reveal that Ms Habra did have a pre-existing psychological condition. On 24 March 2017 Ms Hazim, psychologist, said that she had seen Ms Habra for psychological counselling. Ms Habra had been referred by Dr Elkateb on 6 December 2016 for strategies for severe anxiety and depression. She had suffered those symptoms since arriving in Australia as a “childhood bride” at the age of 15. Her symptoms have deteriorated due to difficulty walking due to pain in her right knee and diagnosed arthritis. There are no other reports from Ms Hazim.
Ms Habra saw Dr Abu-Arab, psychologist, who reported to Dr Al-Shelh on 1 September 2017. He saw Ms Habra under a mental health care plan. He said:
“As you are aware the patient suffers with numerous physical problems that adversely affect her emotional wellbeing such as low back pain, Carpal Tunnel syndrome and arthritis in arms and knees. She reported some gynaecological problems and that she is on a waiting list for an operation.
…
The pain that Mrs Habra experiences is present everyday for most of the day and it causes her significant distress and impairment in social and occupational functioning.”
Dr Abu-Arab diagnosed chronic major depressive disorder and provided cognitive behavioural treatment. He said that her condition was chronic and had been present for many years.
Dr Abu-Arab reported again on 1 February 2018 saying that Ms Habra had been under his care since June 2017. He noted that she had undergone an operation and continued to have complications which exacerbated her depression and anxiety. He reported again on 23 May 2018 and said that a fracture to her right ring finger had also exacerbated her depression and anxiety.

Dispute notices

Ms Habra lodged a claim form on 11 February 2021. The Nominal insurer issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 26 April 2021, denying that employment was a substantial contributing factor to the injury, that Ms Habra had suffered a disease of gradual process or the aggravation of a disease. It noted that Ms Habra had left work without complaint of injury and relied on the statement made by Mr Azeez. It said that Ms Habra had an extensive history of back pain and neuropathic pain in her general practitioner’s notes. I note that the Nominal Insurer was summarising the evidence and did not say, as Dr Al-Shelh suggested in his letter to Ms Habra’s solicitors dated 15 July 2021, that he said that Ms Habra had an extensive history of back pain.
In a second notice dated 21 August 2021 the Nominal Insurer denied liability for a psychological injury, noting previous treatment in Ms Habra’s records and relying on the report of Dr Teoh.
The Nominal Insurer issued a third s 78 notice on 12 January 2022 denying the claim for weekly compensation and medical treatment based on Dr Sheehy’s further report. The decision was confirmed in a review notice dated 25 May 2022.

SUBMISSIONS

The submissions of counsel were made in writing and form part of the Commission’s file.

Ms Habra

Mr Hickey prepared submissions on behalf of Ms Habra. He said that her lumbar spine injury with either a s 4(b)(i) disease injury or in the alternative a s 4(b)(ii) injury in the form of an aggravation of a pre-existing condition. Mr Hickey said that the claim was disputed on the basis that there was no dispute that the surgery recommended was reasonably necessary, the dispute relating to whether a workplace injury was sustained and if that injury materially contributed to the need for surgery. He said that neither argument was available to the Nominal Insurer on the basis of its medical evidence.
Mr Hickey said that Ms Habra did not deny the existence of pre-existing conditions but made it plain that the nature and extent of her current complaints are both different and more extreme. He said that in respect of her lower back she had been treated by Dr Reiter but had not made complaints from about 2016, nor had she previously complained of radiculopathy. He said that she was able to complete her usual domestic duties without difficulty.
Mr Hickey said that, after spending her first day working in the kitchen, Ms Habra commenced picking and stripping work where she was required to pick cucumbers and place them in buckets, remove and collect dead stems, pick zucchinis and place them in buckets, place buckets on trolleys and push the trolleys to allocated packing areas once full. He said that there is a dispute as to whether the duties were heavy or arduous but the evidence relied on by Mr Azeez confirms that those duties were in fact performed. He says that Ms Habra’s evidence is confirmed by Ms Taala. Mr Hickey said that despite the dispute as to the precise nature of the duties performed, it is plain that Ms Habra was a 61-year-old woman in average health with pre-existing complaints. The nature of the work in a farm setting was physical and demanding. He also said that the issue about the nature of the duties is “largely a red herring” because all medicolegal doctors accepted that the nature of her work could give rise to injury.
After summarising the legal issues, Mr Hickey summarised the medical evidence. He noted Dr Al-Shelh had been treating Ms Habra for a number of years and was aware of her background and prior treatment. He noted that Dr Dias had a detailed review with the treating material dating for as far back as May 2017. Dr Dias noted a long background history of osteoarthritis and whilst Ms Habra complained of intermittent lower back pain, it was mild and did not include radicular neuropathic pain. Mr Hickey summarised the opinions of Dr Rosenberg, Dr Bisht and Dr Abraszko.
Turning to the reports of Dr Sheehy relied on by the Nominal insurer, Mr Hickey noted that Dr Sheehy had outlined the history of pre-existing complaints which were not denied by Ms Habra who said that after 2016 her low back condition had largely settled and she was able to perform her usual domestic functions without restriction. Dr Sheehy reviewed Dr Reiter’s reports confirmed that her treatment after 2016 was not to Ms Habra’s lower back. This report, Mr Hickey said, was entirely supportive of Ms Habra, as was Dr Sheehy’s second report. Dr Sheehy also agreed that the need for surgery was materially contributed to by the work injury.
Mr Hickey submitted that Dr Teoh’s opinion was no more than a mere ipse dixit, being “devoid of meaningful analysis”.
With respect to Dr Allen’s opinion, Mr Hickey said that the doctor purportedly obtained a history that Ms Habra denied previous medical issues which was inconsistent with the other evidence in the case. Mr Hickey said that Dr Allen’s approach was clear from the early paragraphs of his report where he commented on Ms Habra’s ability to speak English. Mr Hickey said that statement was not expert opinion and designed to provide a negative impression of Ms Habra. When commenting on previous medical records, Mr Hickey said that Dr Allen failed to point to any complaint made between 2016 and 2020 with respect to Ms Habra’s lumbar spine. His review of the radiology was inconsistent with the opinion of Dr Rosenberg and Dr Abraszko that the MRI scan report dated 6 April 2021 that broad herniation accentuated by extension at L4/5 disc represented a new injury caused by the nature and conditions of Ms Habra’s work. Mr Hickey said that Dr Allen’s report and opinion with respect to causation should be rejected in light of its inconsistency with the overwhelming weight of the evidence in the claim.
Mr Hickey said that I would be comfortably satisfied that the evidence disclosed an injury which occurred over the course of Ms Habra’s employment culminating in increasingly severe back pain on 25 November 2020 [sic], giving rise to symptoms which had not previously been present with the onset of pain and referred symptoms in the buttocks and lower legs. He said that once it was accepted that the injury occurred in the course of Ms Habra’s employment, it must be accepted that the injurious events have given rise to a material contribution to the requirement for surgery. Mr Hickey submitted that weekly compensation in respect of total incapacity was payable.

Mr Azeez

Mr Gaitanis said that Mr Azeez disputes the entirety of Ms Habra’s claim. He summarised a series of contentions:
(a)    Ms Habra was a reluctant worker and obtained employment on 27 October 2020 solely because she was directed to by Centrelink at the risk of losing her Centrelink entitlements;
(b)    she had extensive degenerative conditions and complaints prior to commencing employment on 27 October 2020;
(c)    she complained about her work throughout her employment;
(d)    the nature of the work was not arduous and has been misrepresented by Ms Habra;
(e)    Ms Habra fell in Westfield on Friday, 20 November 2020 and complained to her general practitioner on 21 November 2020 predominately about her knee;
(f)    Ms Habra “went off work on the very next day she attended work being Tuesday, 24 November 2020 complaining that her work throughout her employment had caused her injury and/or aggravation”;
(g)    Ms Habra initially sought to attribute all of her ailments to employment (see Claim Form);
(h)    the first time Mr Azeez became aware of any injury was in late December 2020, and
(i)    Ms Habra did not suffer any injury or aggravation due to work with Mr Azeez.
Mr Gaitanis summarised the factual evidence. He said that Ms Habra did not challenge Mr Azeez’s evidence that she worked on Tuesday, Wednesday and Thursday, which was relevant in the context of the fall at Westfield. Mr Gaitanis summarised the factual differences between the evidence of Ms Habra and Ms Taala and that of Mr Shammo, Ms Nonkovski and Mr Lalo in the description of the premises and the nature of the work performed. Mr Gaitanis stressed what Ms Nonkovski and others have said - that workers at the farm might have complained of pain but not because the work was too strenuous but because most of the workers were suffering for pain in some part of their body. That is the reason why everyone was told to work as tolerated.
With respect to the date of the alleged aggravation, Mr Gaitanis noted that Ms Habra ceased work on 24 November which was a Tuesday, complaining of back pain. She had seen Dr Al-Shelh on Saturday 21 November, having fallen at the shopping centre on the previous day when she was not at work. She complained of back pain after her next day at work and Mr Gaitanis said it but if any aggravation had occurred, it occurred as a result the slip and fall in the shopping centre. He also noted that as recently as 14 October 2020 Ms Habra had complained to Dr Al-Shelh about neck pain. The fall in the shopping centre had not been explored by any of Ms Habra’s doctors.
Mr Gaitanis prepared a table comparing the descriptions Ms Habra provided of her duties with those provided by the other witnesses. He said it is not clear why some doctors have recorded a history that Ms Habra was pushing a trolley of sand because it was not pursued in her statement or in the histories to the independent medical examiners. He said it was not likely that the history was recorded incorrectly by several doctors and it is therefore likely that is what Ms Habra had told them.
Referring to the decision of Keating P in Department of Education and Training v Ireland,[1] Mr Gaitanis said that it was necessary to weigh the evidence of Ms Habra with the other objective evidence. He said that one of the features in the dispute is the absence of any explanation as to why the histories about the mechanism of the injury differ. Another is that Ms Habra has downplayed her pre-existing back pain to doctors examining her for the purpose of the dispute.
[1] [2008] NSWWCCPD 143.
Mr Gaitanis prepared a table of Ms Habra’s complaints of back pain, dating back to Dr Patapanian’s[2] report of 6 November 1992. He noted that both Dr Patapanian and Dr Marabani recorded that the back pain radiated to Ms Habra’s left leg. He noted that Ms Habra complained to Dr Abu-Arab of low back pain in 2017 and to Dr Reiter of upper back pain in 2020.
[2] [sic] this is Dr Lassere’s report.
Mr Gaitanis noted that Ms Habra told Dr Abraszko that she had never suffered any previous injury to her back or suffered back pain. Because that is clearly incorrect, the probative value of Dr Abraszko’s opinion is undermined, as is Dr Rosenberg’s who agreed with her. He said that Ms Habra cannot take comfort from Dr Sheehy’s opinion because his view was less supportive when apprised of all of the evidence. Dr Dias did have a history of back pain but was told that the pain had not previously radiated to Ms Habra’s legs. Dr Dias also accepted that Ms Habra had not suffered from urinary incontinence before November 2020. Mr Gaitanis said that Ms Habra had been untruthful in her history and sought to blame all of her conditions on her work.
With respect to the psychological aspects of the injury, Mr Gaitanis noted that the symptoms of which Ms Habra now complains are the same as those suffered in 2017.
With respect to Dr Allen’s report, Mr Gaitanis submitted that Dr Allen commented on his ability to communicate with Ms Habra. When Dr Allen raised Ms Habra’s history back to 1992 she denied it dismissing any knowledge of the doctors and attributing the records to her husband, which Mr Gaitanis submits was unfathomable. Noting elements of Ms Habra’s history, Mr Gaitanis submitted that Dr Allen’s report was logical, probative and measured. He accepted the possibility of a minor aggravation at the “utmost” and said that “taking the applicant’s case at its highest, and giving her the benefit of doubt for the sake of the argument, that is all it could be”.
Mr Gaitanis said that there was no evidence that Ms Habra’s employment caused any frank injury or aggravation and that there should be an award for both respondents on the claim for weekly compensation and the cost of surgery.
In further submissions filed on 6 February 2023 Mr Gaitanis said that he had omitted in his original submissions to raise an issue discussed in conciliation - that Ms Habra is limited to the use of either the report of Dr Dias or Dr Rosenberg under cl 44 of the Workers Compensation Regulation 2016 (the regulation) because the evidence showed that she had not been treated by an occupational physician or an orthopaedic surgeon that had been treated by rheumatologist and a neurosurgeon.

Nominal insurer

Ms Goodman prepared submissions on behalf of the Nominal Insurer. She highlighted the evidence which contrasted with Ms Habra’s evidence as to the nature of her duties in the statements from Mr Azeez, Mr Lalo, Mr Shammo and Ms Nonkovksi, noting the photographs which supported the evidence of Mr Lalo and Ms Nonkovksi.
The Nominal Insurer adopted Mr Azeez’s submissions about the nature of the work performed. Ms Goodman submitted that the Commission would prefer the evidence of Mr Azeez’s witnesses:
“It is easy to see what they say in the photographs provided, ie. that the ground in the greenhouses where the work was being carried out was relatively flat, that there was some material (perhaps weed matting) placed over the walkways which made it easier to walk and push the trollies with cucumbers in them, that there was very little bending involved in the work that was being done because the cucumber plants were grown vertically, so that most of the work was done standing and there was no repetitive lifting done as when the cucumbers had been picked and placed in the buckets the worker would move the trolley to the front of the greenhouse from where they would be picked up by Amer and other male workers.”
Ms Goodman said that the complaints of symptoms recorded at Liverpool Hospital conflict with what Ms Habra later said her symptoms were at that time she ceased work. Ms Habra said that she was experiencing severe low back pain with weakness numbness and tingling radiating down her legs, her right being worse than her left. The discharge summary however noted that Ms Habra presented with low back pain after pushing a trolley of sand with no shooting pain down her leg, no changes to sensation and no pins and needles. She noted that Dr Al-Shehl also had a history that Ms Habra was pushing a trolley and at his first consultation noted no sciatica. Ms Goodman adopted Mr Azeez’s submissions and the table regarding the mechanism of injury. She submitted that I would accept the documentary evidence as to Ms Habra’s initial symptoms.
With respect to Dr Abraszko’s opinion, Ms Goodman noted that Dr Abraszko accepted Ms Habra’s history that she was carrying a sandbag and putting it on a trolley which she pushed and that she had never experienced any previous injury to her back nor suffered back pain. She also accepted that Ms Habra had stayed for five days in Liverpool Hospital. Ms Goodman noted that in her report dated 10 June 2021 Dr Abraszko repeated what she had been told on the first occasion and submitted that the probative value of Dr Abraszko’s opinion was clearly undermined, she not having been aware of Ms Habra’s extensive pre-existing history.
With respect to the medico-legal reports, Ms Goodman submitted that Dr Rosenberg had an incomplete history and the probative value of his report is undermined.
She observed that Dr Sheehy had seen Dr Reiter’s 2016 report and was therefore aware of Ms Habra’s previous complaints of back pain. He obtained a history that Ms Habra was injured while repetitively lifting buckets of cucumbers and on that basis, accepted her employment was a substantial contributing factor to the aggravation of underlying spondylolisthesis. However in his further report Dr Sheehy said that if the employer’s history was accepted, he was of the opinion that Ms Habra did not suffer a workplace injury. Ms Goodman adopted Mr Azeez’s submissions with respect to the reports of Dr Dias and Dr Allen.
Ms Goodman submitted that Ms Habra’s evidence should not be accepted and that the extensive inconsistencies in it meant that I would have significant reservations about the genuineness of her case that aggravation occurred as a result of the nature and conditions of her employment.

Ms Habra’s reply submissions

Mr Hickey set out cl 44 of the Regulation and noted that cl 44(3) provides that where a worker has been treated by a specialist medical practitioner with different qualifications to those referred to in cls (1) and (2), an additional forensic medical report may be admitted from a practitioner with qualifications in that specialty. He said that Dr Rosenberg’s report satisfied the exception because Dr Abraszko is a neurosurgeon and spinal surgeon and Dr Rosenberg is an orthopaedic spinal surgeon with qualifications in spinal surgery. Mr Hickey also said that Dr Abraszko did not recommend surgery until 2 December 2021. The report of Dr Dias on 30 July 2021 was obtained to respond to the denial of weekly compensation. Mr Hickey said that the claim for surgery was a separate dispute and Dr Rosenberg’s report was obtained to respond to that dispute.

In reply to Mr Azeez’s submissions, Mr Hickey said that there were a number of difficulties with the submission that Ms Habra may have injured her back when she fell in the shopping centre. First the issue had not been raised in a dispute notice and no leave was sought to raise it, relying on Mateus v Zodune Pty Limited t/as Tempo Cleaning Services[3] and Brickworks Ltd v Wright.[4] Second, it raises significant issues of credit which had not been made the subject of dispute and, if the submission was accepted, Ms Habra would be denied procedural fairness, referring to Finney Pty Ltd t/as Cut Price Car Rentals v Chequer.[5] Third, the submission was without merit because there was no medical evidence that Ms Habra was complaining of back pain associated with that fall.
[3] [2007] NSWWCCPD 27 at [36] and [44]-[45].
[4] [2022] NSWPICPD 21 at [91].
[5] [2021] NSWPICPD 13 at [52]-[60].
Mr Hickey noted that all of the workers from APM were working because Centrelink had requested that they do so. Ms Habra was merely attending work to which she was referred and rejected submissions seeking to “conjure some image” of her being a reluctant worker. He said that the nature of the work had been the subject of extensive submissions but the disputes as to the nature of those tasks did not alter the fact that the work was undertaken and it was physical. Mr Hickey said that the apparent significant discrepancies in the histories provided to treating doctors were not made out and that more detailed histories have been obtained as further investigations have been undertaken. He said that Ms Habra’s limited command of English was relevant.

FINDINGS AND REASONS

The ARD pleads that the injury occurred on 25 November 2020. The evidence is clear that Ms Habra did not work after 24 November 2020 so that date must be the deemed date of injury in accordance with s 16 of the 1987 Act. Nothing turns on that discrepancy because I am not satisfied on the balance of probabilities that Ms Habra suffered an injury at work.
The standard of proof on the balance of probabilities was described by the Court of Appeal in Nguyen v Cosmopolitan Homes.[6] McDougall J, with whom the other members of the Court agreed, said:[7]
“(1)    A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)     Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)     Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4)     A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[6] [2008] NSWCA 246.
[7] At [55].

Admissibility of reports

Mr Azeez objected to Ms Habra’s reliance on the reports of both Dr Dias and Dr Rosenberg and Dr Dias. Mr Hickey’s said that the reports were obtained to deal with different disputes.
I agree that it was reasonable to obtain Dr Rosenberg’s report to respond to the denial of the request for surgery and that he has qualifications relevant to the consideration of that request.

Credit

It is not necessary that a witness be cross-examined before the Commission can make an adverse finding about her credit – see New South Wales Police Force v Winter[8] and Donovan v Secretary, Department of Education and Communities[9].
[8] [2011] NSWCA 330.
[9] [2015] NSWWCCPD 27.
Ms Habra’s credit is relevant to the issue of injury and to the question of whether an injury materially contributed to the need for surgery. Her statements as to the nature of the duties performed and her pre-injury condition are contested and it is necessary to weigh her statements against the objective and historical evidence.
Based on the extensive medical evidence in the file, I am not satisfied that Ms Habra was pain free in her lumbar spine when she commenced work. She had been treated for numerous conditions and regularly took medication which I understand to be anti-inflammatory and pain-killing medication. She had a long history of intermittent complaints in respect of her lumbar spine. Dr Abraszko’s reports show that she denied that history and Ms Habra has not said that Dr Abraszko’s history was wrong, nor – apparently – was any effort made to correct it for the doctor’s later reports.
Mr Hickey said that I would discount Dr Allen’s evidence because he purportedly obtained a history that Ms Habra denied previous medical issues which was inconsistent with other evidence. He was not the only doctor to obtain that history. He also said that I would discount the report because of Dr Allen’s comments about Ms Habra’s ability to speak English. However, even when those comments are put to one side, there is no reason not to accept his description of her significant lack of cooperation at his examination. It was so significant that he was unable to perform a clinical examination. Those observations do not reflect well on her credit.
Where Ms Habra’s evidence is inconsistent with that of other witnesses about the duties she performed or her treatment in the workplace, I prefer the evidence of the other witnesses. Where her evidence conflicts with that recorded in historical medical reports, I prefer the evidence in those reports.

The work performed

Ms Habra said that the duties she performed at Mr Azeez’s premises were heavy and physical. I am satisfied that some physical work was performed but I am not persuaded that it was as arduous as Ms Habra said nor am I persuaded that she was treated harshly. T
here is a significant difference between the statements Ms Habra made to medical practitioners and her statements in these proceedings. In her statements, Ms Habra did not say that she was required to lift sandbags or push trolleys or wheelbarrows laden with soil or sand. She did not rely on that history in these proceedings and I do not accept that the work was as she described to the doctors who have examined her.
Mr Hickey said that the dispute about the duties was a “red herring” because all of the doctors accepted that the work could cause injury. The difficulty with that submission is that the doctors accepted that a history of heavy lifting, twisting, bending and pushing heavy trolleys on uneven ground as described by Ms Habra could cause her to suffer an injury. I do not agree that her description was accurate. When Dr Sheehy was provided with information about the work actually performed, he no longer agreed that the work could cause the injury Ms Habra suffered.
It is important to remember that Ms Habra had never previously worked outside the home and that she had been treated for a range of medical problems over a long period. She went to work at the farm because she was required to work by Centrelink. She does not say that she was looking for work; she said that she was requested by Centrelink to seek employment and told by a representative of Centrelink that if she did not work, her payments would stop. Her own evidence is clear that she was working because she had to, rather than because she wanted to. Considering her medical history, she was probably not an appropriate candidate for the role. It is likely that she may have found working for five hours a day and three days a week taxing and experienced pain as a result. It does not necessarily follow that she suffered an injury as a result of that employment.
The description of the duties and the premises given by Ms Habra contrasts markedly with those of Mr Azeez, Mr Lalo, Ms Nonkovski and Mr Shammo. Ms Habra’s description is a significant exaggeration. The evidence of Mr Lalo and Ms Nonkovski is supported by photographs of the trolleys and the greenhouses which show conditions very different to those described by Ms Habra. I accept that the tasks Ms Habra was required to do were varied.
None of the witnesses say that they were required to lift – the buckets that they filled were already in the trolleys. Based on the photographs attached to Mr Lalo’s statement, I accept that the floor of the greenhouses were smooth, compacted earth, covered with weed mat. I accept that the trolleys would have been relatively easy to manipulate on that surface.
Mr Lalo’s descriptions of the way the work was done make sense in the context of a vegetable growing business where success will depend on high quality produce. He said that experienced workers planted the plants into pots and picked most of the cucumbers, commenting that the workers supplied by APM often made mistakes so that the cucumbers they were required to pick were those damaged or left behind.
The photographs of the trolleys do not support Ms Habra’s evidence. The photographs show four-wheeled trolleys each holding three buckets. Ms Habra did not describe the trolleys in clear terms in her statements, merely disagreeing that those in the photographs were the trolleys she used. The photographs of the floor of the greenhouses do not support Ms Habra’s description. The aisles appear wide and the ground is covered by weed mat.
Ms Habra said that she was required to push the trolleys over uneven ground to a truck in the driveway for approximately 30 minutes. In her supplementary statement she said that she was required to take rubbish to the chicken house. If the evidence about 30 minutes appeared only once, it might be accepted that was a typographical error for 30m but it also appears in Ms Habra’s history to Dr Bisht. Again, Mr Lalo’s evidence contrasts with that of Ms Habra and makes sense in the context of a business. He said that the workers were only required to take trolleys of produce or rubbish to the front of the greenhouses where they were collected by other staff in a ute. His evidence is supported by an aerial view of the greenhouses with the ute parked in the driveway. He said that there was no point in a worker spending the time necessary to take a trolley of rubbish for disposal and I accept his evidence.
Mr Lalo said that the cucumbers were picked while the workers were standing up and workers stood while removing dead plants. Ms Nonkovski said that she was required to sweep the greenhouse and the kitchen area, which would have been performed standing. While there may have been some bending required in picking the cucumbers and removing the vines, I am not satisfied that Ms Habra was required to undertake significant bending. I do not accept that she was required to lift heavy weights.
Ms Habra said that she was required to remove and replace soil. She did not elaborate on that evidence and did not say where the soil was removed from and replaced to. The statement is inconsistent with that of the other witnesses and inconsistent with Mr Lalo’s statement that the cucumbers were potted by permanent staff.
The tenor of Mr Lalo’s evidence is that the tasks were varied and that workers were not placed under pressure while working. He said that Ms Habra picked zucchini on only one day and a careful reading of her statement confirms that she does not say she picked zucchini more than once. Ms Nonkovski and Mr Shammo agreed that they were not placed under pressure.
There is an inconsistency between Ms Habra’s evidence and Mr Lalo’s evidence about the time she spent in the “kitchen”. However, Mr Lalo’s evidence suggests that the kitchen is close to the loading area where cucumbers are packed into boxes. He said that Ms Habra wanted to work in the greenhouses and the evidence is clear that some of her duties were performed there.
Ms Taala’s statement is very short and merely supports Ms Habra’s evidence. She also said that the work was physically demanding but provided little detail. It provides no assistance to the determination of the claim.
Where there is a dispute between Ms Habra’s evidence and that of Mr Azeez’s witnesses, I prefer the detailed evidence of Mr Azeez’s witnesses whose evidence is consistent with each other and supported by photographs.

Injury

After the amendments made to the ARD, the pleading with respect to the injury reads:
“Worker suffered aggravation, exacerbation, acceleration or deterioration of pre-existing degenerative disease materially contributed to by the heavy nature and conditions of the work performed between 27 October 2020 and 24 November 2020; and Worker developed a secondary psychological disorder due to chronic pain and limited physical functioning and/or Worker sustained a primary psychological disorder due to harsh working conditions and maltreatment from her employer and/or in the alternative, the applicant suffered a disease injury to her lumbar spine as a result of the heavy nature and conditions of her employment.”
Ms Habra’s case is that the injury is either a disease or the aggravation of a disease as a result of the nature of her employment over the period that she worked. I do not accept that the injury was a disease because there was clear evidence of a pre-existing condition.
In respect of the aggravation of a disease, Ms Habra must prove that the employment was the main contributing factor to the aggravation. In State Transit Authority of New South Wales v El-Achi[10] (El-Achi) Roche DP said:
“As was pointed out by the Full Court of the Federal Court in Commonwealth of Australia v Beattie [1981] FCA 88; 35 ALR 369 at 377–378, Semlitch establishes that there may be an exacerbation or aggravation, which relevantly mean the same thing, notwithstanding that there is no change in the underlying pathology. Whether there is such an exacerbation or aggravation is a question of fact in each case (Mellor v Australian Postal Corporation [2009] FCA 504 at [23]). In the present case, for reasons stated, the Senior Arbitrator determined that fact against the appellant. He was entitled to do so.”
[10] [2015] NSWWCCPD 71 at [107].
In W5270/22[11], Snell DP considered a series of authorities to determine the meaning of “main contributing factor”, noting that in El-Achi, Roche DP had referred to the test as being one of causation. He said:
“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.”
[11] [2020] NSWWCCPD 9 at [72] and [78].
The evidence shows that Ms Habra had a long and complex medical history, including significant complaints of pain in her lumbar spine. Her case is that she did not have significant lumbar spine pain at the time she started work and that she had not given a history of low back pain to a medical practitioner since 2016. Her case is also that she suffered a change in the underlying pathology because she suffered a new disc protrusion at L4/5 and that she suffered leg pain which she had not previously experienced. To succeed in her claim, Ms Habra must prove that the work she undertook was the main contributing factor to the aggravation of the underlying disease.
It is easy to say that Ms Habra did not have back pain when she started work because there was no specific complaint in the notes after 2016 but that bald submission does not take account of her history. It is also inconsistent with Ms Habra’s own statement that she had low back pain which was manageable.
The submission also assumes that Ms Habra’s general practitioner recorded all of her complaints on every occasion that she saw him. That is not the case – for example Dr Al-Shelh prescribed Celebrex on 8 September 2020 without noting the reason.
In Nominal Defendant v Clancy[12], Santow JA said:
“While clinical notes, … , may in common experience be the raw data on which diagnosis and opinions are based, it does not follow that they will be comprehensive … clinical notes are written in the course of a busy practice where the clinician is primarily there to observe and administer treatment. They should not be construed with the minute attention one might give a formal legal document. It is fair to say a report to another doctor [or a medico-legal report] is likely to have been written with more deliberate consideration than rough notes.”
[12] [2007] NSWCA 349.
As long ago as 1992, Ms Habra complained to Dr Lassere of low back pain which occasionally radiated to her left foot. She made the same complaint to Dr Marabani in 1993.
Dr Reiter recorded complaints of low back pain from 2007. Throughout much of the time she was seeing Dr Reiter, Ms Habra was taking Celebrex. In 2017 Dr Reiter confirmed in a report to Dr Al-Shelh, who had recently begun to treat Ms Habra, that Ms Habra had lumbar spondylosis and facet joint disease as well as L5/S1 spondylolisthesis.
A previous general practitioner in Dr Al-Shelh’s practice saw Ms Habra for back pain in 2016 and Ms Habra discussed low back pain with Dr Al-Shelh on many occasions, the last of them in August 2020.
Dr Dias also noted that Ms Habra had a long history of symptomatic osteoarthritis and that she had suffered back pain for 15 years including intermittent back pain before she commenced work. However, Ms Habra told him that she had never experienced lower limb radicular symptoms before the injury.
Ms Habra’s medical case is centred on the reports of Dr Abraszko. Notably, Dr Rosenberg accepts Dr Abraszko’s diagnosis of a new injury at L4/5 rather than making his own diagnosis.
Dr Abraszko set out the history she obtained in her first report dated 25 February 2021. It had four important elements on which she relied in all of her subsequent reports and in her recommendation for surgery. Dr Abraszko accepted the history that Ms Habra was required to carry sandbags and place them on a trolley which she pushed, that she performed that task on her last day of employment (said to be 25 November) and suffered an injury on that day after which she could not move, that she was admitted to Liverpool Hospital and stayed for five days and that she had never previously had back pain, her spondylolisthesis being previously asymptomatic.
Ms Habra did not say in her statements that she was required to lift sandbags and push them on a trolley, nor did she say that she was performing that task on her last day of employment. She does not rely on a frank injury on that day. The history on which Dr Abraszko has based her opinion is not that on which Ms Habra relies. She did not say in her statement that she was unable to move.
Admission to hospital for five days suggests a serious condition but Ms Habra was not admitted to hospital. The doctor who saw Ms Habra at Liverpool Hospital recorded that Ms Habra was pushing a trolley of sand and suffered back pain. She did not complain of symptoms in her legs and that doctor noted that she suffered osteoarthritis which was normally managed with Celebrex and Panadol Osteo. Her pain improved when Endone was administered.

Dr Abraszko identified a disc protrusion at L4/5 shown on MRI scan dated 6 April 2021 as a direct result of the work injury but did not explain why she considered it was new and she does not say that she had reviewed pre-injury radiology.
Dr Abraszko’s last two reports are medico-legal reports and she repeated the questions she was asked in the reports. She was not directed by those questions to consider if the injury was a result of the nature and conditions of Ms Habra’s employment. In her report dated 30 November 2021 Dr Abrazsko said that Ms Habra would not have accepted a job as a pick and packer if she had constant pain in her back. That opinion does not take account of the nature of the duties actually performed by Ms Habra nor the fact that she was required to work by Centrelink.
In her last report dated 17 June 2022 Dr Abraszko said that the injury resulted from lifting and twisting movements of Ms Habra’s lumbar spine, causing the L4/5 disc injury and aggravating “previously symptomatic spondylolisthesis”. That reference appears to be a typographical error because the first page of the report repeats the history that the condition was previously asymptomatic.
The assumption that Ms Habra had not previously experienced back pain is fundamental to Dr Abrazsko’s opinion and is, on the evidence, wrong.
In Paric v John Holland (Constructions) Pty Ltd Samuels JA said:[13]
“I have myself looked at the evidence and looked at the hypothetical facts and while I would agree that in some respects the material put does differ in terms from what was proved, all in all I would regard it as open to the tribunal of fact to consider that it was a fair foundation and remains a reasonable support for the opinions which were sought and given…
It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis. In the present case it seems to me that there was a fair climate in which the expert views could properly flourish, and certainly it was open to the learned judge to come to that conclusion.”
[13] [1984] 2 NSWLR 509, 510.
While that decision concerned the assumptions put to expert witnesses qualified to prepare a report, it is relevant here. Dr Abraszko’s report is central to the question of the nature of the injury, the incapacity which flows from it and the need for surgery. The history on which Dr Abraszko has based her report is not the case Ms Habra makes in these proceedings and is so different to the history disclosed in other medical reports that I cannot accept her opinion. Because Dr Rosenberg essentially relies on Dr Abraszko’s opinion, his report does not assist.
Dr Dias has a history closer to the case Ms Habra makes but the description of the work that he recorded is quite different to that which I accept occurred. His opinion is based on a history, among other things, of lifting heavy buckets, replacing soil and pushing trolleys and wheelbarrows for several hundred metres. I am not satisfied that those tasks were part of Ms Habra’s duties.
I accept Dr Sheehy’s opinion in his report dated 13 December 2021. When provided with a history that there was no heavy lifting and bending and no specific incident, he considered that Ms Habra did not suffer an injury and the condition which Ms Habra suffers is a continuation of that for which she had been treated for many years.
I cannot, on the evidence, find that the fall in the shopping centre caused or contributed to the condition in Ms Habra’s back as Mr Gaitanis submitted. While experience shows that such a fall may have aggravated her lumbar spine condition, it would be speculative to make any finding in the absence of detailed evidence about the fall and any medical evidence about its consequences. The fall occurred on the weekend before her last day of work but there is no medical evidence that it caused any injury other than to Ms Habra’s left knee.

Surgery

It is not necessary that a work injury be the sole cause of a need for surgery. In Murphy v Allity Management Services Pty Ltd,[14] Roche DP considered the claim of a worker who suffered a work injury and a later incident when she fell in a supermarket. Surgery was recommended after the later fall and an arbitrator in the former Workers Compensation Commission found that it was needed as a result of that fall. Roche DP said:
“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because 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 (1979) 53 WCR 167; ACQ Pty Ltd v Cook [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).”
[14] [2015] NSWWCCPD 49.
The parties accept that Ms Habra requires the proposed surgery but Mr Azeez and the Nominal Insurer do not accept that the need was materially contributed to by an injury. As I have found that Ms Habra did not suffer an injury, I do not accept that the need for surgery was materially contributed to by anything which occurred at Mr Azeez’s premises.

Psychological injury

The psychological injury does not loom large in the evidence or submissions. The claim as pleaded was that it resulted from mistreatment by Ms Habra’s employer but I do not accept that she was mistreated.
Dr Bisht was only provided with documents which post-date the injury. He accepted Ms Habra’s history that she had mild depression 12 years ago and did not have treatment. His diagnosis was based on a history of maltreatment when Ms Habra complained about the work and a secondary condition resulting from her physical injury. He said that there were no non-work related stressors and no pre-existing condition. In the absence of an accurate history, Dr Bisht’s opinion as to the cause of Ms Habra’s psychological condition cannot be accepted.
The evidence shows that Ms Habra had been treated for depression over many years though she also denied that when she sought treatment from Ms Zaanour. Ms Zaanour also had a history of “physical and psychological damage” which I do not accept.
Ms Habra saw Mr Abu-Arab for treatment in 2017 and 2018 and he considered that she suffered a major depressive disorder as a result of her numerous physical problems which was chronic and had been present for many years. That opinion makes sense, based on the extensive medical history disclosed in the file.
Dr Teoh considered that Ms Habra’s condition was not consistent with a psychiatric diagnosis. While his report is brief, I do not agree with Mr Hickey’s submission that it is devoid of meaningful analysis. Dr Teoh recorded that an interpreter was present. Based on his consultation, he considered that Ms Habra demonstrated symptoms of emotional distress secondary to chronic pain and physical disability. Importantly, he considered the evidence in the file and noted that Ms Habra did not present to him with the symptoms which Ms Zaarour documented.
I do not accept that Ms Habra suffered either a primary or secondary psychological injury as a result of her work at Mr Azeez’s farm.

Conclusion

Because of the findings I have made, I do not need to consider questions of capacity.
For those reasons, I make an order in favour of Mr Azeez and the Nominal insurer.

[2023] NSWPIC 116

20 March 2023