Hall v Altus Traffic Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hall v Altus Traffic Pty Ltd [2022] NSWPIC 208
APPLICANT:	Peter Hall
RESPONDENT:	Altus Traffic Pty Ltd
MEMBER:	Nicholas Read
DATE OF DECISION:	10 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits compensation; whether claimed injury to the lumbar spine had resolved; nature and extent of injury suffered by the applicant; assessment of factual and medical opinion evidence; Held– satisfied on the balance of probabilities that the workplace injury had not resolved; satisfied that applicant Award for applicant on the claim for weekly benefits compensation.
DETERMINATIONS MADE:	1. The Application to Resolve a Dispute is amended to claim weekly benefits compensation from 2 November 2021 to date and continuing. 2. Award for the applicant on the claim for weekly benefits compensation. The respondent is to pay the applicant weekly benefits compensation pursuant to section 37 of the Workers Compensation Act 1987 from 2 November 2021 to date and continuing at a rate of $1,000.

STATEMENT OF REASONS

BACKGROUND

Peter Hall (the applicant) suffered an injury to his back in the course of his employment with the Altus Traffic Pty Ltd, the respondent, when lifting a boom gate from the back of a trailer in slippery and wet conditions.
Mr Hall received treatment and eventually returned to his pre-injury duties. Mr Hall complained of aggravations to his back injury from a defective work vehicle and his daily living activities.
On 7 October 2021 respondent issued a dispute notice under which it declined liability for Mr Hall’s claim. The dispute notice was issued on the basis that Mr Hall’s injury had resolved and it was therefore no longer liable to pay weekly benefits compensation for any incapacity for work suffered by him. The effect of the denial of liability was that Mr Hall’s entitlement to weekly benefits compensation ended on 1 November 2021.

ISSUE FOR DETERMINATION

The respondent notified the matters in dispute a notice issued pursuant to sections 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 7 October 2021.
For the purpose of this application the issues in dispute were defined as follows:
(a) Whether the injury sustained by Mr Hall on 4 March 2020 has resolved?
(b) If not, what is Mr Hall’s entitlement to weekly benefits compensation as a result of the injury on 4 March 2020?
The parties agreed that Mr Hall’s preinjury average weekly earnings (PIAWE) is $1,250.

PROCEDURE BEFORE THE PERSONAL INSURY COMMISSION (COMMISSION)

The parties attended a conciliation/arbitration before me on 20 April 2022.
Mr Greg Young of counsel appeared for the applicant instructed by Turner Freeman Lawyers. Ms Kavita Balandra of counsel appeared for the respondent instructed by Hicksons Lawyers.
I was satisfied that the parties to the dispute understood the nature of the application and the legal implications of the assertions made in the information supplied. I used my best endeavours to attempt to bring the parties to a settlement acceptable to them. I was satisfied that the parties had sufficient opportunity to explore settlement and that they were unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and have been taken into account in making this determination:
(a)    Application to Resolve a Dispute, and attachments (ARD);
(b)    Reply filed by the respondent, and attachments (Reply), and
(c)    Application to Admit Late Documents lodged by the applicant (ALD).

Mr Hall’s evidence

In a statement dated 16 February 2022 Mr Hall set out his previous work history and the details of his injury. Mr Hall said he had sustained a crush injury to his left ring finger at another workplace, but had not sustained any other injuries or pursued any other workers compensation claims (ARD page 1).
In August 2018 Mr Hall commenced employment with the respondent as a traffic controller working around 40 hours plus per week. Mr Hall said that his duties included driving utility trucks, light trucks and marking out jobs on roads.
Mr Hall set out the accident details as follows:
“In March 2020 when I went to work one day it was raining and appeared to be dangerous work. Usually on wet days we would not work outdoors. My supervisor Graham Martin asked me to do a job on trailer. I told him that it was wet and it would be dangerous work. He discussed it with the client and they indicated the job needed to be done...I had to get on the trailer to get the boom gates off and place them on the road. As I was trying to do that I slipped on the slippery wet floor of the trailer. The boom gate is a giant machine that was the size of a red garbage bin. I had to be careful not to drop the machine. I tried to stop the machine from falling over and in the process filled with the machine and sustained injury to my lower back...”
Mr Hall was unable to work after the incident and was paid weekly benefits compensation for a period of about four months (ARD page 2).
Mr Hall returned to work performing light duties and subsequently returned to his preinjury duties. Mr Hall said:
“I still had pain and symptoms in my back and had not received appropriate treatment, but was certified to return to work. In the radiology that I had done there was a suggestion that I would need to have a cortisone injection done, but that was never recommended by my GP. When I returned to work I still had pain and symptoms in my back, but I worked with the symptoms” (ARD page 2).
Mr Hall said in or about December 2020 he felt his condition was being aggravated whilst he was driving a work vehicle which had a defective seat (ARD page 3).
On 3 April 2021, as Mr Hall was bending down to pick up his socks at home, he felt pain in lower back.
Mr Hall attended his family doctor at the Camden Healthcare Centre who prescribed a medication and recommended physiotherapy treatment.
Mr Hall said that he has not been up able return to work since 3 April 2021 and noted that the respondent ceased paying him on 1 November 2021 (ARD page 4).
Mr Hall said he suffered from a lower back injury, pain and symptoms in the left leg going down to the toes, including pins and needles in the toes and anxiety and depression (ARD page 4).

Medical evidence

On 11 March 2020 Mr Hall saw Ms Bindu Gunturu, physiotherapist, and Dr Magdalene Dubert, general practitioner, at the Kildare Road Medical Centre. The clinical notes record that Mr Hall reported injuring his back on 4 March 2020 after picking up a heavy boom gate from a trailer at work and that he had been in pain since. Mr Hall was noted to be in obvious pain on movement with decreased range of motion (Reply page 38).
On 13 March 2020 Mr Hall saw Ms Gunturu. The clinical notes record that Mr Hall continued to be in pain (Reply page 38).
On 17 March 2020 Mr Hall saw Dr Paul Grady, general practitioner, at the same medical centre. Dr O’Grady’s clinical notes record that Mr Hall’s back was improving however he still complained of pain and decreased sitting, standing and walking tolerances which were limited by pain and muscle tension.
Dr O’Grady noted on examination that Mr Hall was walking better but still “compensated” as a result of his injury. The notes record that Mr Hall described himself as being 30% better compared to his position on 13 March 2020. Dr O’Grady discussed with the respondent Mr Hall’s functional capacity and the potential of rotation of duties to assist him with pain and decreased tolerances (Reply pages 37-38).
Dr O’Grady issued a certificate in which he certified Mr Hall as having capacity for some type of work from 17 March 2020 to 20 March 2020 on the basis of usual hours and usual days, with restrictions (Reply page 7).
On 19 March 2020 Mr Hall saw Ms Gunturu and reported a flareup of lower back pain. The clinical notes record that Mr Hall had a sudden onset of pain from undertaking filing work. It was noted that Mr Hall was walking with a limp compensating for pain on his left side (Reply page 37).
On 20 March 2020 Mr Hall saw Dr O’Grady. The notes record that Mr Hall had a flare up of symptoms and reported neural symptoms in his left leg. Dr O’Grady requested an MRI scan of Mr Hall’s lumbar spine to assess for nerve impingement. Dr O’Grady noted that Mr Hall was to continue suitable duties but that he was not fit to go on a worksite at present and that he should only perform office-based administrative duties within his work restrictions (Reply pages 10 and 37).
On 23 March 2020 Mr Hall saw Ms Gunturu reporting ongoing radiating pain continuing after his flareup (Reply page 37).
On 25 March 2020 Mr Hall had an MRI of his lumbosacral spine performed by Dr John Ly, radiologist. The MRI report relevantly noted a mild disc bulge at the L5/S1 level with no disc protrusion or neural impingement. The conclusion of the MRI report provided:
“Small L3/4 posterior central annular tear. Diffuse disc bulge is noted from L3/4 the L5/S1 levels, not associated with this protrusion or neural impingement. No spinal canal or foraminal stenosis evident. Intact facet joint.
If conservative treatment is not effective, CT-guided epidural and local anaesthetic injection could be considered as a diagnostic and potentially therapeutic procedure” (ARD page 29).
On 30 March 2020 Dr O’Grady reviewed Mr Hall together with Ms Gunturu. Dr O’Grady recorded that Mr Hall had recovered from his recent flareup and had improved with physiotherapy and rest.
Dr O’Grady noted that the MRI scan demonstrated a small annular tear which “may or may not be” attributable to Mr O’Grady symptoms and it was an option of a local steroid injection, but it was agreed that this was not necessary or desirable at present. Dr O’Grady said he anticipated full recovery back to preinjury duties over the course of two to eight weeks with conservative management (Reply pages 10 and 36).
On 14 April 2020 Dr O’Grady saw Mr Hall for a further review and case conference. It was noted that Mr Hall was making good progress and he was able to lift 10kg from the waist up. Dr O’Grady said that due to the nature of Mr Hall’s injury and its situation in the lower back, Mr Hall was not ready for below the waist lifting, and as such could not be cleared for a return to preinjury duties. Dr O’Grady recommended that Mr Hall continue with physiotherapy (Reply pages 10 and 35).
On 24 April 2020 Mr Hall saw Ms Gunturu. The clinical notes record that Mr Hall was doing well however occasionally felt a little twinge in his lower back (Reply page 35).
On 28 April 2020 Mr Hall saw Dr O’Grady again for further review. Dr O’Grady noted that objectively Mr Hall was making good progress however he had a flareup of pain following an hour of static standing during the preceding weekend. Dr O’Grady’s notes record:
“Discussed today that this need not be replicated during his work duties and as such we are happy for him to trial preinjury duties with a full clearance today. He has pre-authorised physiotherapy which he can attend should you need further treatment but does not routinely require further medical review. I’m happy to see him should he not manage his preinjury duties or have any other flare in symptoms that is of concern. Otherwise please consider this a final certificate today” (Reply page 10).
Dr O’Grady issued a further medical certificate in which he certified Mr Hall as being fit for preinjury duties.
Following an episode of back pain in April 2021 Mr Hall saw his family general practitioner, Dr Khan. Dr Khan referred Mr Hall for an MRI scan.
On 28 April 2021 Mr Hall had a further MRI scan. The comment of the MRI scan recorded “Early disc degeneration at L3-5 and L4-5 without significant canal or foraminal compromise.” (Reply pages 15 and 34).
Dr Khan referred Mr Hall to Dr Ashish Diwan, spinal and scoliosis surgeon, for review.
In a report dated 4 June 2021 Dr Ashish Diwan recorded a history of Mr Hall having first injured himself in March 2020 when he slipped in a trailer whilst moving 100kg object. Dr Diwan recorded the Mr Hall had said he consequently injured his back which had gotten worse since then. Dr Diwan noted that Mr Hall had had a significant flareup as he was driving a vehicle which did not have adequate support (ARD page 13).
Dr Diwan recorded upon examination that Mr Hall’s forward bending was restricted at about 50% but backward extension was quite free.
Dr Diwan said that the MRI scans showed some disc desiccation at L3-4. According to Dr Diwan, there appeared to be a superior endplate breach on the right side at the L5 level and bi-cavity of the disc. Dr Diwan said the L5-S1 was more dictated with one or two endplate changes.
Dr Diwan said he believed Mr Hall had injured his lower discs, with the apparent pain source at the endplate breach at the L4-5 level and the endplate changes at S1 level.
In order to better understand the source of Mr Hall’s pain, Dr Diwan recommended that Mr Hall get a blood test, a DEXA scan and a CT bone scan, along with standing X-rays (ARD page 13).
On 15 June 2021 Mr Hall had a bone scan and dynamic study of the lumbar spine. The report stated that in the lumbar spine there was no evidence of active discovertebral arthritis or facet joint arthritis and no other definite focal active bony abnormality identified. The report concluded “This is a normal bone scan of the lumbar spine, pelvis and hips in a 41-year-old male” (Reply page 31).
On 17 June 2021 Mr Hall had an X-ray of his lumbosacral spine. The findings stated that there was no obvious disc pathology or other degenerative change and no other lumbar sacral abnormality (Reply page 32).
In a report dated 16 July 2021 Dr Diwan recorded that Mr Hall continued to experience ongoing lumbosacral pain.
Dr Diwan reviewed the X-rays and bone scans and noted they did not show any discal instability for abnormal uptake.
Dr Diwan recommended that Mr Hall consider a spinal injection program to target the L5-S1 level of the lumbar spine.
In respect of work capacity, Dr Diwan said:
“...Peter is still not at work given the nature of his duties. He does have a rehab consultant. He is keen for me to discuss it with him. I suggested that he get the rehab consultant to call my office and schedule a case conference Monday next week” (ARD page 11).
In a report dated 19 July 2021 Dr Diwan explained to Mr Hall’s rehabilitation provider that physiotherapy treatment was ceased due to it causing significant aggravation of Mr Hall’s back. Dr Diwan said:
“We then subsequently detected in his work-up that the aggravation was secondary to inflammation on the lumbar sacral region and today we shall circle back and therefore it may be reasonable for Peter to go on a spinal injection program.
Once that approval is obtained and the injection is completed at St George Private Hospital, he can then start rehab work with a view to returning to his preinjury duties” (ARD page 10).
On 30 August 2021 Mr Hall saw Dr Steven Rimmer, orthopaedic surgeon via telehealth/Zoom health assessment. In report dated 31 August 2021 Dr Rimmer recorded the details of Mr Hall’s injury, stating that in the act of pulling the boom gate Mr Hall slipped and felt a twinge in his back (Reply page 41).
Dr Rimmer said that Mr Hall claimed he always had ongoing back pain and described it being aggravated by working in a truck with the defective seat in or around April 2021 (Reply page 41).
Dr Rimmer’s examination of Mr Hall was compromised due to the appointment taking place via the audio-visual platform. Dr Rimmer recorded:
“With the patient standing, the overall alignment in both planes is normal. Examination highly limited due to the telehealth/these size of the monitor and therefore was ceased at this point” (Reply page 42).
Dr Rimmer also noted that no investigations were available for review, only the reports accompanying same (Reply page 42). Dr Rimmer refrained from making a diagnosis in the absence of the relevant investigations (Reply page 43).
In respect of Dr Diwan’s diagnosis of chronic lumbosacral pain associated with L4-5 endplate changes, with facetal inflammation in the lower lumbar and lumbosacral region and possible disc desiccation at L3-4, Dr Rimmer said:
“First of all, I would like to highlight the nuclear bone scan report dated 15 June 2021 concludes it is a normal bone scan of the lumbar spine, i.e., no facet joint inflammation.
Secondly, the MRI scan of the lumbar spine dated 28 April 2021 reports early/mild disc degeneration at L3/4 and L4/5 without significant canal compromise. Therefore, this would be consistent with the 41-year-old individual and not related to the compensation injury dated 4 March 2020” (Reply page 44).
In respect of whether Mr Hall’s original work-related injury had resolved or was continuing, Dr Rimmer stated:
“From the history provided, Mr Hall claims that upon his return to work in late 2020 following the work injury on 4 March 2020 he did return performing preinjury duties and hours, however claimed to have ongoing back pain” (Reply page 44).
Dr Rimmer said there was an intentional effort by Mr Hall to exaggerate his symptoms (Reply page 45).
In respect of any future treatment requirements, Dr Rimmer said that given Mr Hall’s body mass index he was an ideal candidate for a six to eight week course of hydrotherapy. Dr Rimmer said such treatment would be for both for “compensable and non-compensable issues” (Reply page 45).
In a further report dated 13 September 2021 Dr Rimmer reviewed the radiological images and opined that Mr Hall had suffered, at most, a musculoskeletal strain of the lumbar spine (Reply page 49).
Dr Rimmer said:
“Given the trivial nature of the mechanism injury, that is, driving the work truck the probability of this or a similar injury would have happened around the same time in the workers life, I would say is high” (Reply page 49).
Dr Rimmer confirmed that he did not agree with Dr Diwan’s opinion regarding the nature of the injury on the basis of the clinical investigations and associated reports.
Dr Rimmer said having reviewed the investigations, he did not believe that Mr Hall’s certificate of capacity reflected his actual work capacity. Dr Rimmer opined that Mr Hall could return to the workplace effective immediately as a traffic controller (Reply page 50).
Dr Rimmer later stated that Mr Hall could return to his preinjury role in his preinjury workplace in a “graduated fashion effective immediately” (Reply page 51).
On 1 November 2021 Dr Mohammad Khan, general practitioner, issued a certificate of capacity in which are recorded the date of injury as 3 April 2021 (not 4 March 2020). The diagnosis of the work-related injury/disease was “acute on chronic backache – disc degeneration L3/L4 and L4/L5” (ARD page 30).
In respect of how the injury is related to work, Dr Khan recorded on the form:
“Bend forward to pick up a pair of socks...develop sudden sharp pain back, had similar pain last year. Been driving work vehicle with poor seat at workplace vehicle with no proper foam cover, just the metal seat” (ARD page 30).
Dr Khan noted that Mr Hall had a similar pain last year and had received workers compensation (ARD page 30).
Dr Khan certified Mr Hall’s having no current work capacity from 3 November 2021 to 30 November 2021 (ARD page 31).
In a report dated 15 December 2021, Dr Diwan, spine and scoliosis surgeon, recorded a history that Mr Hall had suffered a work injury in March 2020, when he slipped on a trailer and was required to move a 100kg object. Dr Diwan recorded that Mr Hall had stated he had a significant flare up in May 2021 driving a work vehicle which had little seat support, and since that time he had been unable to work and in significant pain.
In respect of diagnosis, Dr Diwan said:
“By physical examination, along with the history of injury, and review of available radiological examinations and reports, it was determined that Peter had suffered a superior endplate breach on the right side at L5, along with endplate changes at S1. Giving the chronicity of his symptoms, Peter’s current diagnosis is chronic lumbosacral pain associated with L4 – 5 endplate changes, with facetal information in the lower lumbar and lumbosacral region and possible disc desiccation at L3-4.”

Dr Diwan opined that Mr Hall’s employment was the only substantial contributing factor to his ongoing symptoms. Dr Diwan said:
“Mild disc desiccation and endplate changes are known to get worse with the type of injury described by Peter even if they are existing prior to the injury. What remains unclear is whether those endplate cracks developed as a consequence of the injury, or they were pre-existing without evidence to confirm this” (ARD page 8).
In respect of Mr Hall’s capacity for work, Dr Diwan said:
“Any person who has been off for more than 3-month duration, and has been away from work for longer than that, gets into the complex on finding it difficult to return to work due to numerous factors. Such factors include guilt, deconditioning, and potential requirement of further retraining or education to get back to their previous level of functioning. These can be considered as soft barriers” (ARD page 9).
Dr Diwan said that Mr Hall had a reasonable prognosis of returning to his preinjury duties (ARD page 9).
In a report dated 10 January 2022 Dr Khan provided a short report in response to a letter from Turner Freeman Lawyers. Dr Khan took a history of diagnosed Mr Hall’s injury as having occurred on 3 April 2021 when Mr Hall bent down to pick up a pair of socks and developed a sudden pain in his back. Dr Khan said Mr Hall had experienced a similar pain at his workplace as he was driving a vehicle with no proper cushion. Dr Khan diagnosed Mr Hall as stuffing from “acute and chronic back pain”, consistent with his certificates of capacity (ARD page 6).
On 21 February 2022 Dr Khan issued a further capacity in which he certified Mr Hall as having no current work capacity from 1 December 2021 to 21 February 2022 (ARD page 34).
In the certificate, Dr Khan recorded the same details as to the diagnosis, date of injury (3 April 2021) and in respect of the connection between the injury and Mr Hall’s work (ARD page 33).
In a further report dated 24 February 2022, Dr Diwan responded to Dr Rimmer’s opinion as follows:
“There’s been no evidence provided, to my knowledge, that shows Mr Hall symptoms are not related to the reported injury of 4 March 2020, and no evidence of pre-existing symptomatic problems on the spine this 42-year-old patient.
On a review of the history of injury provided by the patient, along with his symptomatic presentation following that report injury, this appears to be consisted with injurious impact. With no prior record of this gentleman seeking any preinjury treatment for any existing spinal problem, this leads one to the conclusion that the patient’s employment is the sole substantial contributing factor to the injury sustained and to the ongoing symptoms being experienced” (ALD page 4).

REASONS

Has the accepted injury to Mr Hall’s back resolved?

There is no dispute that Mr Hall an injury to his back at work on or around 4 March 2020.
The issue for determination is whether Mr Hall has continued to suffer from the effects of the injury or whether the injury has resolved. This is a question of fact to be determined by reference to the evidence.
Mr Hall has the ultimate onus of proof (Chen v State of New South Wales (No 2) [2016] NSWCA 292 per Leeming JA at [33]-[34]; McColl JA agreeing at [1]).
The standard of proof is the balance of probabilities. The test in relation to standard of proof has been discussed by the Court of Appeal in Nguyen v Cosmopolitan Homes(NSW) Pty Ltd [2008] NSWCA 246 (Nguyen) where McDougall J (McColl and Bell JJA agreeing) said at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
In Malec v JC Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638 Deane, Gaudron and McHugh JJ said at [642]-[643]:
“A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.”
The respondent bears an evidentiary onus in respect of the issue of whether the injury to Mr Hall’s back had ceased.
In Greif Australia Pty Limited v Ahmed [2007] NSWWCCPD 229 (22 November 2007) DP Roche considered the circumstances in which the evidentiary onus shifts in proceedings in the former Workers Compensation Commission. The Deputy President referred to Brown v Lewis [2006] NSWCA 87 and said at [54]:
“In Lewis, Mason P stated at [83], ‘the plaintiff bears the ultimate onus of proof. In some matters there may be a shifting of the evidentiary onus (eg Watts v Rake [1960] HCA 58; (1960) 108 CLR 158) but the ultimate persuasive onus remains with the plaintiff.’ In the Commission, the ultimate persuasive onus remains with the applicant worker (Mr Ahmed). However, where the worker has made out a prima facie case that his or her condition has resulted from a compensable work injury and that employment was a substantial contributing factor to that injury, the onus of adducing evidence that the condition has resulted from some pre-existing condition rests with the employer (see Barwick CJ, Kitto and Taylor JJ in Purkess v Crittenden (1965) CLR 114 164 at 168… Their Honours added that in the absence of such evidence a plaintiff would be entitled to succeed ‘if his evidence be accepted’ (at 168).”
In Department of Education and Training v Ireland [2008] NSWWCCPD 134 (Ireland) Keating J discussed the relevance of contemporaneous evidence such as clinical notes and medical reports. In Ireland His Honour Keating J warned against the dangers of decision-makers relying on findings of credit rather than evidence and emphasised that all of the evidence must be weighed up in determining questions of fact (at [91]).
Mr Hall submitted that his statement and the medical evidence supported that his injury in March 2020 had not resolved but had developed into a chronic condition.
The respondent submitted that Mr Hall’s evidence should not be accepted, relying upon the opinion of Dr Rimmer. It was submitted that there was no evidence of any significant pathology in Mr Hall’s back, which supported ongoing effects of a traumatic injury. The respondent submitted that any symptoms and restrictions suffered by Mr Hall were the result of underlying degenerative changes in his lumbar spine, and not the result of the March 2020 injury. It was also submitted the cause of any incapacity was non-work-related aggravations of an underlying constitutional back condition.
In my view the March 2020 injury was relatively significant. The mechanism of the injury, as described by Mr Hall was dramatic, and capable of causing a traumatic injury to the discs in his lumbar spine. In terms of the significance of the injury, it is relevant that Mr Hall reported flareups in symptoms shortly following the injury and, on 20 March 2020, neural symptoms to his left leg (Reply pages 10 and 37). The contemporaneous clinical notes record Mr Hall compensating for pain by way of limping. Approximately six weeks after the injury Dr O’Grady assessed Mr Hall as being still not ready for below the waist lifting and clear for a return to preinjury duties (Reply pages 10 and 36).
There is no evidence of Mr Hall suffering from any problems with his back prior to March 2020. Mr Hall does not give any specific evidence on this matter, other than to say that he had not sustained any injuries other than a left finger injury and had been otherwise healthy with no “health issues” (ARD page 1). The clinical records from the Camden Healthcare Centre, who Mr Hall saw before seeing Dr O’Grady, are not in evidence.
I am mindful of making findings on the basis of credit alone. However, there is no other evidence against which to asses the veracity of Mr Hall’s claims of having no symptoms in his back prior to March 2020. I was not directed to any evidence which casts doubt upon Mr Hall’s evidence, save for the MRI reports which were said to indicate little or no pathology capable of causing pain. In the circumstances, I accept Mr Hall’s evidence that he was otherwise healthy prior to March 2020.
In determining whether Mr Hall’s back injury has resolved, it is important in my mind that he experienced flareups in pain following the initial injury in mid-March 2020 and on 25 April 2020. To me, this suggests that the pathological change which took place in Mr Hall’s lower back on 4 March 2020 had the capacity to produce ongoing symptoms exacerbated by work and non-work-related activities. Indeed, when Dr O’Grady certified Mr Hall as being fit for pre-injury duties on 28 April 2020 he noted that he was happy to see Mr Hall if he should not manage his preinjury duties or have any further flareups of pain that were of concern (Reply page 10).
The respondent submitted that the resolution of Mr Hall’s March 2020 injury was supported by that fact that he returned to work until he was unable to do so after 3 April 2021. Both parties made extensive submissions on the content of Dr O’Grady’s medical certificates and clinical notes. In my view, Dr O’Grady’s evidence does not provide any substantial support for the contention that Mr Hall’s injury had resolved, particularly given the contemplation of future flareups of pain.
Mr Hall stated that his back injury was aggravated on his return to work due to driving a work vehicle. There is no evidence to verify Mr Hall’s contentions, such as contemporaneous reports of pain to a doctor. Mr Hall says that he reported a defect to the vehicle’s seat and that it was causing aggravation to his back, but no compensation claim was submitted. There is no evidence from the respondent’s workers to contradict Mr Hall’s evidence. Again, I am hesitant to accept Mr Hall’s evidence on the basis of the lack of corroborating evidence. However, it is plausible that Mr Hall experienced pain undertaking his work duties in this manner, especially considering the evidence flareups of pain after the March 2020 injury and the contemplation of further flareups of pain.
Dr O’Grady first saw Mr Hall shortly following his injury. Mr Hall was referred to Dr O’Grady following the March 2020 injury by the respondent. When reading Dr O’Grady’s reports, I find that his focus was on providing Mr Hall with a pathway to return to work and not on identification of the nature or extent of the injury. Whilst Dr O’Grady referred Mr Hall for an MRI scan, he did not provide any diagnosis of the injury, other than stating the small annular tear “may or may not be” attributable to Mr Hall’s symptoms (Reply pages 10 and 36). Dr O’Grady did not refer Mr Hall to a specialist, notwithstanding Mr Hall’s complaints of referred pain to his left leg and compensation for his pain by walking with a limp. The epidural injecting compensated by the MRI scan for diagnostic and potentially therapeutic benefit was not pursued. It is more likely than not that Mr Hall had not recovered from his back injury when he was certified fit to return to his preinjury duties.
The weight afforded to medical opinion evidence is to be determined by having regard to the correspondence of the opinion provided with the facts proved by admissible evidence. The assumptions underpinning an expert opinion must provide a “fair climate” to ground the opinion (OneSteel Reinforcing Pty Ltd vSutton [2012] NSWCA 282; Hancock v East Coast Timber Products Pty Ltd (at [77]).
Mr Hall relies upon the report of Dr Diwan, who is a spinal and scoliosis specialist. Dr Diwan was provided with an adequate factual background to provide an opinion on the nature and cause of Mr Hall’s injury and its ongoing effects. Although Dr Diwan provided his opinion retrospectively, over a year after the traumatic injury, he had available to him the relevant clinical investigations.
The respondent correctly submitted that Dr Diwan’s opinion did not neatly align with the findings of the investigation reports, which indicated that there was no significant pathology in Mr Hall’s spine and it was normal for a 41-year-old man. In my view, this is not of great import. Dr Diwan had available to him the actual investigations and not only the reports. I presume he used his clinical expertise when assessing the images and making his diagnosis. I think it would be relatively common for a specialist to identify pathology on radiological images that is not referred to in the reports accompanying the images.
I am satisfied that Dr Diwan was provided with an adequate history concerning the nature of the injury, and I prefer his opinion on diagnosis and causation to that of Dr Rimmer.
It is an unfortunate circumstance that Dr Rimmer was not able to physically examine Mr Hall and his examination was compromised over the video platform. There was no opportunity to test Mr Hall’s range of motion. In his first report Dr Rimmer, sensibly, did not provide any diagnosis, awaiting receipt of the relevant images.
Dr Rimmer did not provide any concluded view on whether Mr Hall’s work-related injury had resolved, rather referring to Mr Hall’s claim that it was ongoing.
Somewhat inconsistently, Dr Rimmer said hydrotherapy was recommended for both the compensable and non-compensable issues (Reply page 45). That the treatment is needed in part for a compensable injury does not sit comfortably with Dr Rimmer’s opinion Mr Hall at most suffered a musculoskeletal strain which has resolved.
In his subsequent report Dr Rimmer referred to Mr Hall’s injury as being “trivial” and referred to it as resulting from driving the work truck. This is not the correct history and fails to have proper regard to the nature of the injury in March 2020. I have found that the incident at work was of substance and had the potential of causing pathological change in Mr Hall’s lumbar spine. Dr Rimmer’s recording of the incorrect history causes me to place less weight upon his opinion.
I am not persuaded by Dr Rimmer’s opinion that Mr Hall’s injury in March 2020 was limited to a musculoskeletal strain. I find that Mr Hall suffered an injury to his lower back discs, as diagnosed by Dr Diwan.
Dr Khan’s report is difficult to understand without the letter of instruction. However, the report is to be read in the context of the other evidence, in particular the certificates of capacity and Dr Diwan’s evidence. The respondent correctly pointed to the inconsistencies between Dr Diwan’s evidence and Dr Khan’s evidence, however those inconsistencies do not cause me to doubt the veracity of Mr Hall’s claim that he has suffered a compensable injury the effects of which are ongoing in nature. Dr Khan’s description of the injury “acute and chronic” back pain is consistent with Dr Diwan’s diagnosis of chronic lumbosacral pain associated with L4-5 endplate changes.
I am satisfied on the balance of probabilities that Mr Hall’s injury has not resolved.

What is Mr Hall’s entitlement to weekly benefits compensation as a result of the injury on 4 March 2020?

Mr Hall has the onus of proving that he has continued to suffer incapacity for work as a result of his injury. The standard of proof is the balance of probabilities.
Mr Hall relies upon the medical certificates from Dr Khan and the opinion of Dr Diwan.
In his report of 16 July 2021 Dr Diwan did not directly address the question of work capacity. However, in his report of 19 July 2021, Dr Diwan suggested that once a spinal injection program had been completed, Mr Hall could start rehabilitation with a view to returning to preinjury duties (ARD page 10).
Dr Rimmer’s opinion on work capacity is somewhat inconsistent. On one hand Dr Rimmer says Mr Hall can return to work immediately. Dr Rimmer also said that Mr Hall could return to work in a “graduated” fashion, although it is not clear whether this is the result of compensable or non-compensable symptomatology.
Dr Khan has certified Mr Hall as being unfit for work from 3 April 2021.
I prefer the opinion of Dr Diwan, over that of Dr Rimmer. Dr Rimmer did not have the benefit of examining Mr Hall. Therapeutic and/or diagnostic injections were considered by the radiographer very early in the piece. It is logical that once this treatment has been undertaken Mr Hall’s capacity for work will improve. Dr Diwan’s opinion is supported by Dr Khan, who has assessed Mr Hall as having no capacity for work.
I am satisfied the balance of probabilities that Mr Hall has no current work capacity.
There will be an award for Mr Hall on the claim for weekly benefits compensation.

[2022] NSWPIC 208

10 May 2022