Hohepa v Truserv Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hohepa v Truserv Pty Ltd [2024] NSWPIC 234
APPLICANT:	Henry Hohepa
RESPONDENT:	Truserv Pty Limited
MEMBER:	Karen Garner
DATE OF DECISION:	7 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation pursuant to sections 33, 36, 37 and 38, and a general order for medical and related expenses pursuant to section 60; whether applicant sustained injury to his lumbar spine pursuant to sections 4(a), 9A, 4(b)(i), 4(b)(ii); Held – applicant did not sustain an injury to his lumbar spine pursuant to sections 4(a), 9A, 4(b)(i); applicant did sustain an injury to his lumbar spine pursuant to section 4(b)(ii); general order for payment of expenses pursuant to section 60; matter listed for a conference to deal with issue of calculation of weekly compensation pursuant to sections 33, 36, 37 and 38.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant did not sustain an injury to his lumbar spine with a date of injury of 15 November 2019 pursuant to ss 4(a) and 9A Workers Compensation Act 1987 (1987 Act). 2. The applicant did not sustain an injury to his lumbar spine with a deemed date of injury of 29 November 2019 as a result of the nature and conditions of work pursuant to 4(b)(i) 1987 Act, and 3. The applicant did sustain aggravation and exacerbation of a disease in his lumbar spine in the course of employment and his employment was the main contributing factor to the aggravation and exacerbation, with a deemed date of injury of 29 November 2019 pursuant to s 4(b)(ii) 1987 Act. The Commission orders: 4. The respondent to pay the applicant’s expenses in accordance with s 60 1987 Act upon production of accounts, receipts or Medicare Notice of Charge; 5. The matter is to be listed for a conference to deal with the issue of calculation of weekly compensation pursuant to ss 33, 36, 37 and 38 1987 Act.

STATEMENT OF REASONS

BACKGROUND

Henry Hohepa (the applicant) worked for Truserv Pty Limited (the respondent) as a truck driver.
By Workers Injury Claim Form dated 5 March 2020, the applicant made a claim for workers compensation pursuant to the Workers Compensation Act 1987 (1987 Act) in relation to injury to his lower back with a date of injury of 29 November 2019. The form stated that the injury occurred when the applicant was “loading/unloading truck x 4/5 per day” and “got out of truck to unload”.
The respondent’s insurer (the insurer) disputed liability for workers compensation by dispute notice dated 30 June 2020 issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).
On or about 20 May 2021, the applicant’s solicitors submitted a request for spinal fusion surgery in accordance with quotes submitted by Dr Bisham Singh on 24 February 2021.
The insurer disputed liability by: dispute notice dated 17 June 2021 issued pursuant to s 78 1998 Act; notice dated 25 November 2021 issued pursuant to s 287A of the 1998 Act; and by further notice dated 7 April 2022 issued pursuant to s 287A of the1998 Act.
The insurer disputed liability for the claimed compensation on the grounds that it disputed that the requirements of ss 4(a), 9A, 4(b) and 33, 59 and 60 1987 Act were satisfied.
By letter to the respondent’s insurer dated 29 April 2022, the applicant’s solicitor clarified that the applicant suffered: an injury to his lumbar spine as a result of the nature and conditions of employment as a truck driver with a deemed date of injury of 29 November 2019; and, in the alternative, claimed that he suffered an aggravation, acceleration, exacerbation or deterioration of a degenerative process in his lumbar spine with a deemed date of injury of 29 November 2019.
By letter to the respondent’s solicitor dated 27 October 2023, the applicant’s solicitor confirmed that the applicant continued to press his claim for the cost of spinal fusion surgery recommended by Dr Bisham Singh and, in addition, claimed weekly compensation benefits pursuant to ss 33, 36, 37 and 38 of 1987 Act. The applicant’s solicitor clarified that the applicant suffered: a frank injury to his back on 16 November 2019 when he stepped off his truck; and, in the alternative, an injury to his lumbar spine as a result of the nature and conditions of employment as a truck driver with a deemed date of injury of 29 November 2019; and, in the alternative, claimed that he suffered an aggravation, acceleration, exacerbation or deterioration of a degenerative process in his lumbar spine with a deemed date of injury of 29 November 2019.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The applicant initiated proceedings in the Personal Injury Commission (the Commission) by an Application to Resolve a Dispute (Application) lodged on 25 January 2024 which claimed:
(a) weekly compensation pursuant to s 33, 36, 37 and 38 1987 Act, and
(b) medical and related expenses pursuant to s 60 WCA in relation to L4-S1 Anterior Lumbar Interbody Fusion (Stage 1) surgery requested by Dr Bisham Singh.
The respondent lodged a Reply (Reply) on 16 February 2024.
At a hearing on 11 April 2024, the applicant was represented by Mr Ross Stanton, counsel instructed by Gerard Malouf & Partners Lawyers. The respondent was represented by Mr Fraser Doak, counsel, instructed by Bartier Perry Lawyers.
I am satisfied that the parties to the dispute understand the nature of the Application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

By consent, at the hearing, leave was granted to the applicant to amend the Application to:
(a) discontinue the claim for expenses of the surgery proposed by Dr Singh, and, in lieu
(b) claim a general order for medical and related expenses pursuant to s 60 of the 1987 Act.
Accordingly, the applicant now claims:
(a) weekly compensation pursuant to s 33, 36, 37 and 38 of the 1987 Act, and
(b) a general order for medical and related expenses pursuant to s 60 of the 1987 Act.
At the hearing, the parties agreed that the applicant’s pre-injury average weekly earnings for the purposed of calculating weekly compensation is $1,722.27.
The parties agree that the following issues remain in dispute and require determination:
(a) whether the applicant sustained an injury to his lumbar spine arising out of or in the course of employment and his employment was a substantial contributing factor to the injury, with a date of injury of 15 November 2019 – ss 4(a) and 9A of the 1987 Act;
(b) whether the applicant sustained an injury to his lumbar spine as a result of the nature and conditions of work, with a deemed date of injury of 29 November 2019 – ss 4(b)(i) of the 1987 Act;
(c) whether the applicant sustained aggravation, acceleration, exacerbation or deterioration of a disease in his lumbar spine arising out of or in the course of employment and his employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration, with a deemed date of injury of 29 November 2019 – s 4(b)(ii) of the 1987 Act, and
(d) the extent and quantification of the applicant’s entitlements pursuant to ss 33, 36, 37, 38, and 60 of the 1987 Act.

EVIDENCE

Documentary evidence

By consent, the following documents were in evidence before the Commission and considered in making this determination:
(a)    Application with attached documents;
(b)    Reply with attached documents;
(c)    Application to Admit Late Documents (AALD) dated 5 April 2024, lodged by the respondent, and
(d)    AALD dated 8 April 2024, lodged by the applicant, and
(e)    Updated Wages Schedule, lodged by the applicant.

Oral evidence

No party applied to adduce oral evidence or cross-examined any witness.

Lay evidence

The applicant

The applicant gave evidence by way of four statements, respectively dated 6 January 2021, 29 April 2022, 23 June 2022 and 21 October 2023.
In his statement dated 6 January 2021, the applicant stated:
(a)    the applicant worked for the respondent as a truck driver. His duties were to pick up and deliver goods by semi-trailer. The applicant was required to manually open and close the trailer, which he found to be physically demanding. Each trailer had 48 straps and buckles securing the cargo curtains, which the applicant was required to fasten and unfasten. The applicant was required to take the tension on each strap before handling the respective buckle. Each trailer also had about 42 feet of curtains, which the applicant was required to pull backwards and forwards. Each trailer also had seven gates, weighing approximately 5kg each, which the applicant was required to slide backwards and forwards. The applicant found the tasks to be even more physically demanding task if he was required to pull the curtains or gates uphill (because the trailer was on an incline) or against the wind. On occasion, the applicant was also required to manually feed the straps which held the loads through the anchoring points on the roof of the trailer. On average, the applicant went through the process of opening and closing the trailer about five to six times daily, five days per week;
(b)    “When I first began to experience symptoms, it was pain in my lower back. I had never had any symptoms in my lower back before. The first I began to experience these symptoms was on Friday, 15 November 2019” (at [47]);
(c)    “There was no incident that caused or contributed to my symptoms. I do not know what brought it on. It was a really hard ache in my lower back and it was really hard to walk... I had to stop every meter to rest, as it was excruciating pain...” (at [48]);
(d)    that day, the applicant reported the symptoms to supervisors at DHL and the respondent. The applicant completed his shift as instructed but continued to experience persistent pain. The applicant continued to work for the next couple of weeks despite the pain symptoms continuing;
(e)    on 25 November 2019, the applicant reported to the respondent’s chief operating officer, Gavin Graham, that he had a sore back, could not continue working and needed to see a doctor. Mr Graham refused to give the applicant any time off work, stating that he did not have another driver to replace the applicant. Mr Graham stated words to the effect of “Oh fuck, now another one on workers comp” and the applicant responded that he should not worry about it and that he would fix his injuries himself;
(f)    the applicant resigned from his employment on 25 November 2019 because he continued to experience excruciating lower back pain. The applicant’s last day of work was 29 November 2019;
(g)    the applicant first attended a doctor regarding the back pain on or about 2 December 2020. The applicant did not attend a doctor prior to that time because he thought that the pain might go away and he did not want to take time off work;
(h)    the applicant underwent various investigations and treatment in relation to the lower back pain, and
(i)    the applicant believes that his lower back symptoms were caused by the manual handling activities he performed over time, during his work with the respondent and for different employers generally in the transport industry over the past 38 years, rather than being caused by any specific event. The applicant stated that he did not have any significant pre-existing injuries.
In his statement dated 29 April 2022, the applicant stated:
(a)    the applicant’s duties in his employment with the respondent required him to undertake various repetitive tasks which included entering and disembarking from his truck, walking, sitting and preparing the trailer to be loaded and unloaded;
(b)    the applicant stated that since about 2017, he had various episodes of lower back pain occurring from time to time as a result of his employment as a truck driver. The applicant managed that pain during this time and did not take any time off work. With the exception of his employment, the applicant had no other previous medical history to the site of the subject body parts;
(c)    the applicant stated that during his employment with the respondent as a truck driver for about 4-1/2 years, his usual duties involved repetitively entering and disembarking from a truck, repetitive walking, repetitive lifting of a metal gate as well as other preparatory tasks that required physical exertion;
(d)    the applicant stated that on 8 November 2019, as he got out of his truck and landed on the ground, his usual back pain flared up and began to radiate down to his legs particularly on the right side. The symptoms increased in severity as the applicant walked to the back of the truck. Over the course of his shift, the applicant’s pain increased to the extent that he was unable to tolerate carrying on with his work. The usual duties of the applicant’s job also required prolonged sitting while driving for up to 11 hours a day, which the applicant was also unable to do this at that point;
(e)    the applicant tried to manage the pain himself at home for about two weeks after the date of injury. However, the applicant’s pain continued to wax and wane, increasing in severity, particularly the pain radiating down both of his legs;
(f)    Tthe applicant consulted general practitioner Dr Kala Jeevakumar on 23 November 2019 regarding increasing intermittent back pain for the last two months, which had been building up for some time. The applicant reported that the radiating pain down his legs was becoming increasingly unbearable at this point and was preventing him from doing all his employment and domestic tasks;
(g)    the applicant consulted with Dr Avinash Tiwari on 25 November 2019 to discuss the results of an X-ray and CT scan and was given a medical certificate;
(h)    on 29 November 2019, the applicant felt the pain reach a highpoint, with severe lower back pain and radiating pain down his legs. The applicant was terminated from employment as he was no longer able to perform his tasks as a truck driver including to sit for prolonged periods due to the severe pain;
(i)    following ceasing work with the respondent, the applicant undertook some work as an Uber driver out of financial necessity, but he found that work increasingly difficult due ongoing pain as he found it difficult to sit for prolonged periods, and
(j)    despite undergoing various medical consultations, investigations and treatment, applicant experiences ongoing symptoms which include lumbar spine symptoms, radicular pain down both legs, sciatica and consequential disabilities.
In his statement dated 23 June 2022, the applicant stated:
(a)    in the course of performing his work duties, he was repetitively required to undertake various manual tasks, which included: manually lifting trailer gates (about 14 gates in each trailer, each weighing between 5 to 10kg) out of the socket about three inches repetitively; fastening and unfastening buckles; pulling the trailer curtain; replacing the goods strap that came out of the anchoring point. On occasion, the applicant was required to work on an incline ramp;
(b)    the applicant believes that the build-up of those repetitive tasks, particularly lifting and replacing the gates for each unloading, contributed to his injury which was due to the nature and conditions of his work. The applicant denies that he had any sports injury to his back and denies that his lumbar back condition is constitutional in nature, and
(c)    the applicant maintains that on or about 8 November 2019, he told Mr Graham about his back pain and denies that the applicant said it was related to any sport or other injury.
In his statement dated 21 October 2023, the applicant stated:
(a)    he notes there is inconsistency in his previous statements regarding the date he stepped out of his truck and felt back pain. He cannot now recall the precise date, although he believes that the date specified in his statement dated 6 January 2021 is most likely correct;
(b)    the applicant has not worked since about October 2021, when he had to cease Uber driving because of severe back pain. The applicant receives JobSeeker payment and receives about $783 per fortnight, and
(c)    the applicant continues to suffer severe back pain and does not believe that he is fit to work anywhere in his current state. The applicant requires ongoing treatment for his lumbar spine injury.

Gavin Graham, respondent’s managing director

In his statement dated 13 October 2020, Mr Graham stated that:
(a)    the applicant worked for the respondent as a line haul driver in 2016 and 2017, and as a local driver from 2019;
(b)    as a local driver, the applicant worked 10 to 12 hours per day, five days each week, and probably averaged between four to eight runs each day. On each run, the applicant engaged in a process of preparing the trailer before unloading and after loading of the tailer by other workers;
(c)    before unloading, the applicant was required to: undo 24 buckles down each side of the trailer and slide the curtain back; move hanging aluminium gates (which each weighed approximately 5 or 6kg) by sliding them along a runner which ran the length of the truck; the applicant was not required to lift the gates down or remove them;
(d)    after loading, the applicant was required to: strap pallets down by pulling the straps down from the roof with a hook, hook the straps onto a rail at the bottom of the trailer and then ratcheting them up using a tensioner; slide the gates along the length of the trailer back into place; pull the curtain back into place; and do up the buckles;
(e)    the applicant was then required to drive the truck to the next destination;
(f)    there were no other physical components to the applicant’s job. The applicant was not required to lift or manually handle the gates, he was not required to throw straps around and he was not required to manually handle any aspect of the loading or unloading of the goods;
(g)    Mr Graham is not aware of the applicant having any previous injuries or any other previous symptoms in his back. The applicant was a good worker, reliable and did not have any performance issues;
(h)    Mr Graham described the applicant acting in a strange and increasingly aggressive manner from about June 2019. After the applicant asked him for $130,000, Mr Graham expressed his concern for the applicant’s psychological state and that the applicant was being subjected to a scam;
(i)    Mr Graham stated that on 16 October 2019, there was an incident when the applicant parked his trailer in the wrong place and it was accidentally taken by another transport company. The respondent’s business manager, Wage Martlew stated that the applicant became aggressive and threatening when asked about the trailer. Mr Graham stated that, after initially being aggressive, the applicant then started crying and stated that his son was dying when Mr Graham confronted him;
(j)    the applicant then continued to work for another month;
(k)    on 27 November 2019, the applicant advised Mr Martlew that he had been to the doctor and that he was not well, he had a back injury and could not work any more. The applicant provided a medical certificate dated 25 November 2019 which indicated that he was suffering from osteoarthritis, disc bulge and central canal narrowing affecting his lower back;
(l)    Mr Graham spoke with the applicant by telephone on the afternoon of 27 November 2019 and the applicant stated that he was okay, he had played hard and played football all his life, that he had done stupid things and that it had all caught up with him. Mr Graham asked if the applicant intended to make a workers compensation claim. The applicant became very upset, saying words to the effect that he was not like that, he was not a dog, that he did not want to claim workers compensation, that he had just played hard and it was his life, and that he could not work for the respondent anymore. The applicant indicated to Mr Graham that there was no incident, and it was just a matter of deterioration;
(m)     Mr Graham stated that the applicant had not previously notified the respondent of any incident or injury;
(n)    the applicant resigned from work, effective from 29 November 2019, and
(o)    it was always the respondent’s policy that all incidents and injuries be verbally reported to Mr Graham or Mr Martlew immediately. At no time prior to 27 November 2019, did Mr Graham become aware that the applicant experienced any back problems.

In his statement dated 10 June 2022, Mr Graham stated that:
(a)    the trailer that the applicant used has hanging gates and a load restraint system which reduces the physical requirements of strapping loads. Mr Graham denied that the applicant was required to repair issues with straps;
(b)    securing the 48 buckles as part of securing a load is not physically difficult and it takes very little physical effort;
(c)    pulling back the curtains to close the trailer is not physically demanding because the curtains slide using a ball bearing flat roller within a case aluminium track to ensure the curtains move with ease. Further, there are no facilities where the applicant would be required to load or unload a trailer which are on an incline;
(d)    closing the seven gates on each side of the truck, which each weighed approximately 5kg, is not physically demanding because the gates are aluminium and placed within a strap based system which holds them upright and means each one can be removed with one hand. Employees cannot remove the gates as they are secured to the straps. As previously stated, there are no facilities where the applicant would be required to load or unload a trailer which are on an incline;
(e)    on or about 8 November 2019, the applicant told Mr Graham that he had back pain which was caused from playing football in his younger years and he didn’t look after himself. At no stage, did the applicant inform Mr Graham that he injured himself when getting out of the prime mover. Further, the applicant denied an intention to seek workers compensation in relation to his back pain, stating “I am not a dog and would never do that as this job has nothing to do with my injury it relates to my younger years”, and
(f)    the safety rail used by drivers when alighting from the same truck cabins that the applicant operated are about 40cm to the ground from the bottom step when getting out of the truck.

Wade Martlew, respondent’s business manager

In his statement dated 16 November 2020, Mr Martlew stated that:
(a)    the applicant’s duties were to drive to the appropriate site, pull back the curtains and gates, wait for the load to be loaded and then secure the load. The applicant was required to unfasten all buckles before pulling the curtains back. The applicant was required to pull gates backwards and forwards. The gates weighed approximately 5 or 6kg and they were attached to the roof of the trailer by a flexible bungy type strap which would take weight of the gate when the applicant pulled them back. The load restraint straps were on a pully system on the roof of the trailer. The applicant used a hook to pull the straps down from the roof of the trailer, secured the straps to the side of the trailer and then tightened them. The applicant was then required to close the curtains and refasten the buckles;
(b)    there were some issues regarding the applicant’s work performance;
(c)    Mr Martlew is not aware of the applicant having any previous back injuries or symptoms. The applicant spoke in general terms about old football stories;
(d)    on 25 November 2019, the applicant provided Mr Martlew with a medical certificate dated 25 November 2019 which indicated osteoarthritis, disc bulge and central canal narrowing affecting his lower back. The applicant did not notify or discuss the medical certificate with Mr Graham before providing it to him;
(e)    the applicant subsequently told Mr Martlew that he intended to resign. The applicant stated that his doctors had advised him that he needed to find another job as his duties were not suitable for him. The applicant did not indicate that his work had contributed to his condition. The applicant made reference to “old football injuries” and said that his “early days” were catching up with him and it was not appropriate for him to be sitting in a truck all day. The applicant did not indicate that he wished to make a workers compensation claim or that there was any incident or work contribution to his condition;
(f)    the applicant’s wages were finalised on 9 December 2019;
(g)    about six or seven months after the applicant ceased employment, Mr Martlew first became aware that the applicant was making a workers compensation claim, and
(h)    it was always the applicant’s policy that all incidents and injuries be immediately verbally reported to himself or Mr Graham.

Other evidence

Other evidence includes various text messages between the applicant and the respondent.

Procare Investigation report

A report dated 22 January 2021 prepared by ProCare Investigations at the request of the insurer included statements of relevant witnesses. It summarised the findings as follows:
“The Claimant alleges he has experienced symptoms in his lower back while working at the Insured.
He alleges he has experienced progressive and escalating symptoms since 15 November 2019.
The Claimant does not attribute his symptoms to any specific incident or work practice, or even his duties while working for the Insured; but rather attributes them to his work over a period of time in the transport industry.
The Claimant alleged he reported the symptoms when he first experienced them to a supervisor at the lnsured's client, DHL, and a supervisor at the Insured, however neither of these individuals have been identified and these alleged reports have not been confirmed.
The first confirmed report relating to the Claimant symptoms is dated 25 November 2019 with the provision of the medical certificate provided to the Insured; enclosed.
The Claimant confirmed he was provided with manual handling training and during that training he was warned inappropriate manual handling may result in injury.
The Claimant described the manual handling components of his role with the Insured, which present as light. The Claimant described the most physical components of his role consisted of sliding, but not lifting, gates weighing approximately 5kg, and sliding tautliner curtains on the trailer.”

Earning Capacity Assessment

An Earning Capacity Assessment dated 5 April 2023 prepared by Dr Louse Crowle and Ms Alicia Taylor stated that the applicant’s pre-injury job was as a truck driver working 10 hour shifts, five nights per week, with occasional overtime on Saturdays. It stated that the applicant had no current physical capacity for work due to combination impacts of his low back/buttock/hip pain, his peripheral neuropathy (that likely relates to his condition of Diabetes Mellitus) and reported side effects of medications including Lyrica. It stated that the prognosis for improvement of the applicant’s physical capacity for work in the foreseeable future is poor.

Financial records

The evidence includes various financial records, which includes wages schedules, schedule of UBER payments, bank statements, tax returns and draft tax returns.

Treating medical evidence

Dr Bisham Singh, orthopaedic and spine surgeon

In a report to Dr Tiwari dated 24 February 2021, Dr Singh stated that the applicant has L4/5 lumbar canal stenosis on the background of disk height loss from L4 to S1. Dr Singh stated that the applicant now reported symptoms more in the back than the lower legs, and poor sitting and standing tolerance. Dr Singh stated that the applicant’s symptoms appear to be discogenic as well as facetogenic, and his surgical option should be L4 to S1 staged decompression and stabilisation of the lumbar spine with the insertion of a prosthesis. Dr Singh stated that the applicant had failed conservative treatment and that surgical management was reasonably necessary. Dr Singh stated that the applicant requested decompression and fusion surgery from L4 to S1 to help his ongoing symptoms.
By two letters both dated 24 February 2021, Dr Singh requested approval to perform L4-S1 Anterior Lumbar Interbody Fusion surgery (Stage 1 and Stage 2). (I note that the applicant has not undergone that surgery to date and at this time no longer presses a claim for compensation for the cost of such surgery.)
In a report dated 8 March 2022, Dr Singh stated that the applicant gives a history of working as a driver which included loading and unloading, being unable to walk after he climbed out of the truck and subsequently having back pain.
Dr Singh stated that the applicant suffered an injury to his lumbar spine as a result of his employment. Dr Singh stated that the applicant “was previously asymptomatic and had aggravation of his lower back on a background of lifting, twisting, bending as nature and conditions of his employment”.
D Singh stated:
“[The applicant] has congenitally narrow lumbar canal but was asymptomatic prior to this incident. Congenital narrow canal is present in a large segment of asymptomatic population. He became symptomatic after his injury and disc bulging. He has loss of disc height and disc bulging from L4 to S1 resulting in symptomatic lumbar canal stenosis. Employment is the main contributing factor to his current condition.”
In a report dated 3 November 2022, Dr Singh reiterated his opinion that the applicant’s work is the main contributing factor to his current condition. Dr Singh stated that:
“... his duties at work, and the injury described have likely aggravated any underlying previously asymptomatic condition to his lumbar spine...
While he may have a congenitally narrow lumbar canal, he was asymptomatic for the first 55 years of his life. I believe the nature and conditions of his employment have resulted in aggravation of any previously asymptomatic underlying condition therefore work is the main contributing factor to his current symptoms.
...
This gentleman is a tall and well-built man. Congenitally narrow lumbar canal is not by itself the reason for his current symptoms and the requirement for surgery. He has functioned very well with his spine and his height and size for the past seven years and has played sports. He has been asymptomatic. The symptoms appeared after his workplace injury, and are related both to the disc injury as well as the background of several years of loading and unloading trucks. Work is the main contributing factor to his current condition.”

Dr Avinash Tiwari, general practitioner

In a report dated 7 February 2022, Dr Tiwari reported the following medical history:
(a)    on 5 October 2019, the applicant reported: one month of bilateral hip and low back pain and mild stiffness of gradual onset; the ache radiating to the back of the bilateral thighs; pain worsened by movement and improved with resting; difficulty rising from a chair after sitting for a while; no history of trauma or falls; and that he works as a truck driver;
(b)    on 8 October 2019, the applicant reported:10 days of bilateral hip and low back and mild stiffness of gradual onset;
(c)    on 23 November 2019, the applicant underwent a CT which was reported to show: mild spondylotic changes; and moderately severe central narrowing at the L4/5 and L5/S1 levels potentially irritating nerve roots and accounting for the sciatica symptoms;
(d)    on 23 November 2019, the applicant underwent an x-ray lumbar spine which was reported to show: osteoarthritis at the sacroiliac joints; and not other additional findings to those described on the CT;
(e)    on 2 December 2019, care plan management was prepared for the applicant, which included referrals to physiotherapy and a chiropractor and prescriptions for pain relief, and
(f)    on 30 September 2020, the applicant was referred to a spine surgeon.
Dr Tiwari diagnosed disc bulge, lumbar spine arthritis and spinal canal stenosis at T11/12, L4/5 and L5/S1. Dr Tiwari stated that those conditions are part of degenerative diseases and can result from long standing manual handling and physical work involving heavy lifting and mobilising loads.
Dr Tiwari stated that the applicant is suffering with exacerbation/deterioration of degenerative disc disease and lumbar spine arthritis. Dr Tiwari stated that chronic manual handling, mobilising loads and frequent bending with load handling can lead to deterioration of degenerative processes. Dr Tiwari recommended a more formal opinion be obtained from an occupational physician.
Dr Tiwari supported surgery recommended by Dr Bisham Singh, spinal surgeon, on 19 November 2020 for L4/5 decompression.
Dr Tiwari expressed the opinion that it is very unlikely that the applicant is fit to return to work in any capacity, particularly in the absence of surgical intervention.
In a report dated 16 November 2022, Dr Tiwari expressed the opinion that the repetitive tasks referred to in the applicant’s statement had the potential to cause back injury and that the applicant’s employment would have resulted in his back injury in a long term.
Dr Tiwari stated that degenerative disease of the lumbar spine is a common chronic condition with advancing age, but that the respondent’s work tasks would likely contribute to the development, and acceleration/exacerbation of that process in the applicant’s case.

Dr Eric Lim, nominated treating doctor

In a report dated 6 March 2020, Dr Lim expressed the opinion that the applicant suffered a back/knee injury with a diagnosis of cervical spine strain, bilateral shoulder strain, right knee strain, right hip strain, lumbar spine radiculopathy and chronic pain with psychosocial barriers.
Dr Lim stated that, based on his understanding of the applicant’s role as a truck driver, it would be reasonable to conclude that the mechanism of injury was the direct result of performing those specified tasks. Dr Lim stated that the history given is consistent with employment being the main contributing factor to the injury. Dr Lim stated that he did not have any medical evidence to indicate an alternate mechanism of injury.

Vicki Wong, physiotherapist

In an undated report, Ms Wong reported on two physiotherapy sessions attended by the applicant on 26 August 2021 and 9 September 2021 and an assessment performed on 26 April 2023 in relation to the applicant’s chronic lower back condition. Ms Wong noted that the applicant reported ongoing lower back pain and restricted movement on examination.

Clinical records

The evidence includes clinical records of:
(a)    Dr Bisham Singh, including:
(i)a report dated 4 November 2020, which stated that: on examination the applicant has a limited range of motion of the lumbar spine; a CT scan and MRI scan both revealed that the applicant has lumbar canal stenosis, worse at L4/5; the applicant does not report much mechanical axial back pain; a nuclear medicine bone scan does reveal that there is some uptake of tracer in the lower lumper spine and in the cervical spine; they decided to trial injection at L4/5; if the applicant had ongoing symptoms, an L4 to S1 decompression was recommended;
(ii)a report dated 19 November 2020, which stated that: an injection at L4/5 gave the applicant significant relief of symptoms during the anaesthetic phase; Dr Singh believed that the applicant’s employment has been the major contributing factor to the applicant’s back pain from L4/5 lumbar canal stenosis; as the applicant has not responded to conservative treatment, an L4/5 decompression was recommended;
(iii)a report dated 24 February 2021, which stated that the applicant reported ongoing symptoms and that he had given up all prospects of returning to a job of driving buses and was concerned about his ongoing symptoms in relation to other work. Dr Singh stated that conservative treatment had failed and the applicant requested decompression and fusion surgery from L4 to S1, which Dr Singh believed was reasonably necessary;
(iv)letters dated 24 February 2021, by which Dr Singh requested approval to perform an L4-S1 Anterior Lumbar Interbody Fusion, Stage 1 and Stage 2, and
(v)A letter dated 4 May 2021, by which Dr Singh reported that the applicant had ongoing symptoms of lower back pain and mechanical symptoms as well as neurological symptoms in the leg. Dr Singh reported that the applicant was keen on pursuing decompression and stabilisation of the lumbar spine surgery.
(b)    Myhealth (Dr Avinash Tiwari and other general practitioners), including:
(i)a record dated 7 August 2017 made by Dr Ahmad Al Samail, which stated that the applicant reported pain in his left lower back, with radicular symptoms down his left leg, and noted the applicant’s work as a truck driver with no particular injury nor heavy lifting;
(ii)an X-ray lumbosacral spine on 8 August 2017 was reported to show some spondylotic changes throughout the spine, but no other significant lesion;
(iii)a CT lumbosacral spine on 9 August 2017 was reported to show disc bulges at L4/5 and L5/S1 with bilateral facet joint arthropathy and generalised congenitally short pedicles causing moderate canal narrowing at those levels and also mild exit foraminal narrowing;
(iv)a record dated 8 August 2017 made by Dr Al Samail, which stated that a CT lumbosacral spine reported spondyltic changes;
(v)a record dated 17 August 2017 made by Dr Al Samail, which noted spondyloarthritis and disc bulges and that the applicant reported that his symptoms had somewhat self-improved;
(vi)a record dated 22 August 2018 made by Dr Elliott Fang, which stated that the applicant reported intermittent coccygeal pain, and noted that the applicant worked as a truck driver but did not have any particular trauma;
(vii)a record dated 5 October 2019 made by Dr Yiping Zeng, which stated that the applicant reported experiencing bilateral hip and low back pain and mild stiffness for a period of one week, with gradual onset of pain which radiated to the back of his bilateral thighs, worsened by movement. It noted that the applicant worked as a truck driver and did not experience any particular trauma or falls;
(viii)a record dated 8 October 2019 made by Dr Zeng, which stated that the applicant reported ongoing symptoms of bilateral hip and low back pain and mild stiffness;
(ix)a record dated 23 November 2019 made by Dr Kala Jeevakumar, which stated that the applicant reported ongoing symptoms of back pain which radiated to both legs and stated a diagnosis of sciatica. The applicant was referred for an x-ray and CT scan of the lumbo-sacral spine;
(x)a record dated 25 November 2019 made by Dr Avinash Tiwari, which stated that the x-ray and CT scan of the lumbo-sacral spine showed L4/5/S1 changes and stated that the applicant was given a medical certificate in relation to his back symptoms;
(xi)a record dated 2 December 2019 made by Dr Tiwari, which stated that the applicant was provided with a care plan in relation to a diagnosis of disc bulge and lumbar spine arthritis;
(xii)by letter dated 6 December 2019, Dr Tiwari referred the applicant to a physiotherapist for assessment and management of sciatica symptoms. The referral stated that the applicant presented with chronic pain in the sacrum area and radiating pain in his legs, which normally worsens with standing and walking;
(xiii)a record dated 15 January 2020 made by Dr Tiwari, which stated that the applicant reported some improvement of his lower back symptoms following treatment;
(xiv)a record dated 20 January 2020 made by Dr Tiwari, which stated that the applicant reported experiencing ongoing lower back symptoms and that he had finished his job and was considering making a claim for workers compensation;
(xv)a record dated 25 January 2020 made by Dr Elliott Fang, stated that the applicant reported ongoing lower back pain and radiating leg pain and that he had to quit his job due to the pain. Dr Fang stated that he advised the applicant that spondyloarthritis “is not something caused by his 3 years of truck driving work with the last company, but might be contributed by last 38 years of manual handling work with truck driving and overweight”. Dr Fang did not agree to complete a work cover claim for the applicant and advised the applicant to seek another opinion from Dr Avinash who had been looking after the applicant’s pain management;
(xvi)a record dated 4 February 2020 made by Dr Tiwari, stated that the applicant was provided with a certificate regarding ongoing lower back symptoms of spondlyoarthritis;
(xvii)an MRI lumbosacral spine performed on 13 March 2020 was reported to show L5/S1 disc ostephyte with contact of S1 nerve roots and broad herniation at L4/5 with annular tear and foraminal stenosis;
(xviii)by letter dated 6 April 2020, chiropractor Alwyn Sau reported that the applicant had only temporary relief of his ongoing low back pain despite having undergone chiropractic treatment;
(xix)a record dated 28 April 2020 made by Dr Madhusha Kurunaratne, stated that he was unable to certify that the applicant had no capacity for three months due to the applicant’s limited responses and difficulty assessing his condition. The applicant was booked to see his regular general practitioner, Dr Avinash;
(xx)a record dated 22 September 2020 made by Dr Tiwari, which stated that the applicant reported lower back symptom in relation to disc bulge and lumbar spine arthritis;
(xxi)a record dated 28 September 2020 made by Dr Tiwari, which stated that the applicant reported that the previous day he attended a hospital emergency department for back pain;
(xxii)a record dated 30 September 2020 made by Dr Tiwari, which stated that the applicant was referred to a spinal surgeon for review of a CT scan and reported diagnosis of spinal canal stenosis affecting T11/23, L4/5 and L5/S1;
(xxiii)a record dated 14 October 2020 made by Dr Tiwari, which stated that the applicant was referred to a new spinal surgeon, Dr Bisham Singh;
(xxiv)by letter dated 28 October 2020, Dr Bisham Singh reported on a telehealth consultation with the applicant;
(xxv)by letter dated 4 November 2020, Dr Bisham Singh reported that on examination the applicant had a limitation of range of motion of the lumbar spine. Dr Singh reported that a CT scan and MRI scan both revealed that he has lumbar canal stenosis worse at L4/5 and a nuclear medicine bone scan revealed that there is some uptake of tracer in the lower lumbar spine and the cervical spine. Dr Singh stated that he would trial injection at L4/5 and should the applicant have ongoing symptoms his surgical option would be to have an L4 to S1 decompression;
(xxvi)by letter dated 19 November 2020, Dr Bisham Singh stated that an injection at L4/5 gave the applicant significant relief of symptoms during the anaesthetic phase. Dr Singh stated that L4/5 decompression was likely to give the applicant a good result;
(xxvii)a record dated 21 December 2020 made by Dr Tiwari, stated that the applicant was considering spinal surgery;
(xxviii)by letter dated 24 February 2021, Dr Bisham Singh reported on the applicant’s condition, as noted above;
(xxix)a record dated 18 May 2021 made by Dr Tiwari, which stated that proposed spinal surgery was cancelled due to insurance rejecting the applicant’s claim for insurance and the applicant was provided with a certificate;
(xxx)a Total and Permanent Disablement (TPD) Treating Doctor’s report completed by Dr Tiwari on 27 May 2021, stated a diagnosis of: disc bulge and lumbar spine arthritis; spinal canal stenosis at L4/L5/S1; T11/12 osteoathritis sacroiliac joint; and sciatica. It stated that symptoms of hip and low back pain and burning pain in the legs first appeared on 5 October 2019 and that the medical condition was first diagnosed on 25 November 2019. It stated that the applicant previously had spondyloarthritis and disc bulges on 17 August 2017. It stated that the applicant had developed severe lumbar spine arthritis and back pain that limited his lifestyle, prevented him from being active and caused him to stop working. It stated that the applicant had continuing symptoms;
(xxxi)a Permanent Incapacity Medical Certificate completed by Dr Tiwari on 27 May 2021 stated that the applicant had permanent incapacity for work which had been caused by lumbar spine arthritis, lumbar spine disc bulges and spinal canal stenosis;
(xxxii)an undated statement of the applicant which was attached to a signed but undated TPD Claim Form, stated that the applicant stopped working on 31 November 2019 due to severe pain and physical restrictions from his back injury which was caused by the nature and conditions of his work as a truck driver for 38 years. It stated that, because of his back injury, the applicant had been unable to return to any form of work for which he was educated, trained or experienced since 31 November 2019. It stated that after ceasing work, the applicant had attempted to UBER drive for two or three days a week for about two or three hours a day, but he found that he could only drive for roughly half an hour before having to get out and rest;
(xxxiii)by letter dated 7 February 2022, Dr Tiwari reported that the applicant was suffering with disc bulge, lumbar spine arthritis and spinal canal stenosis at T11/12, L4/5 and L5S1, “which are part of degenerative diseases and can result from long standing manual handling and physical work involving heavy lifting, mobilising loads etc”. Dr Tiwari stated that the applicant “is suffering with exacerbation/deterioration of degenerative disc disease and lumbar spine arthritis”. Dr Tiwari stated that “Chronic manual handling, mobilising loads, frequent bending with load handling etc can lead to deterioration of degenerative processes”. Dr Tiwari stated that it was very unlikely that the applicant was fit to return to work in any capacity and that his capacity to return to work was likely to remain very limited;
(xxxiv)a record dated 25 June 2022 made by Dr Mahmuda Happy stated that the applicant was given a referral to a chiropractor for his chronic back pain as a result of the diagnosis of disc bulge, lumbar spine arthritis and spondyloarthritis;
(xxxv)by letter dated 3 November 2022, Dr Bisham Singh replied to a number of questions as follows:
“1. On the balance of probabilities, do you agree that the abovementioned tasks forming the nature of conditions of Mr Hohepa’s employment caused his back injury? ...
He gives a history of working as a driver which included loading and unloading. He climbed out of the truck and had back pain and was unable to walk. Since then, he has back pain with claudication symptoms. On the balance of probabilities, his employment caused his back injury and is the main contributing factor to his current condition.
2. Do you believe work with the Respondent is the main contributing factor for any such aggravation/acceleration/exacerbation or deterioration of a degenerative disease process in Mr Hohepa’s lumbar spine? ...
He gives a clear history of an injury in the workplace on a background of several years of unloading and loading, and I believe work is the main contributing factor to his current condition. His duties at work, and the injury as described have likely aggravated any underlying previously asymptomatic condition to his lumbar spine.
3. On the balance of probabilities, do you disagree with the insurer IME Dr Moloney that the back condition is constitutional in nature? If so, do you agree that the nature and conditions of the employment with the Respondent is the main contributing factor to Mr Hohepa’s back symptoms.
While he may have a congenitally narrow lumbar canal, he was asymptomatic for the first 55 years of his life. I believe that the nature and conditions of his employment have resulted in aggravation of any previously asymptomatic underlying condition therefore work is the main contributing factor to his current symptoms.
4. On the balance of probabilities, do you agree there is causal link between the nature and conditions of Mr Hohepa’s employment and the need for your proposed surgery? If so, do you believe the workplace injury is the material cause to the need for surgery even if obesity or a history of sports is an issue? ...
There is a clear causal link between the nature and conditions of his employment, and his back condition and the need for the proposed surgery. The workplace injury as described above is the material cause to the need for surgery. Obesity and a history of sports is causally unrelated. This is based upon his current pathology, current symptoms and his history which is very clear.
5. Please provide any other relevant comments and observations with respect to the mechanism of injury and the insurer IME report of Dr Moloney.
This gentleman is a tall and well-built man. Congenitally narrow lumbar canal is not by itself the reason for his current symptoms and the requirement for surgery. He has functioned very well with his spine and his height and size for the past seven years and has played sports. He has been asymptomatic. The symptoms appeared after his workplace injury, and are related both to the disc injury as well as the background of several years of loading and unloading trucks. Work is the main contributing factor to his current condition.”
(xxxvi)By letter dated 16 November 2022, Dr Tiwari responded to a number of questions as follows:
“Q1. On the balance of probabilities, do you agree that the above mentioned tasks forming the nature of conditions of Mr Hohepa’s employment caused his back injury?...
Ans- Taks mentioned above certainly have a potential to cause back injury and given the nature of Mr Hohepa’s employment [sic] involving these taks [sic] on a regular basis, on balance or probabilities – I would agree that these have resulted in his back injury in a long term.
2. Do you believe work with the Respondent is the main contributing factor for any such aggravation/acceleration/exacerbation or deterioration of a degenerative disease process in Mr Hohepa’s lumbar spine?...
Ans- Degenerative disease of lumbar spine is a common chronic condition with advancing age but tasks mentioned as above would contribiute to the acceleration/exacerbation of this process, as experienced by Mr HoHepa [sic] in this case.
3. On the balance of probabilities, do you disagree with the insurer Ime Dr Moloney that the back condition is constitutional in nature? If so, do you agree that the nature and conditions of the employment with the Respondent is the main contributing factor to Mr Hohepa’s back symptoms?
Ans- As a General practitioner assessing and managing this condition, I would be of opinion that repeatetive [sic] tasks like mentioned above, would result/exacerbate/aggravate the degenerative process in lumbar spine, but at the same time, I am not an expert like Dr Mononey on this submect matter so as a matterof [sic] fact, I would advise to seek an expert opinion/assessment from an occupational health specialist regarding this matter.”
(xxxvii)a record dated 11 April 2023 made by Dr Happy stated that the applicant had right hip pain following a fall two weeks prior, on a background of chronic back pain;
(xxxviii)by letter dated 31 May 2023, physiotherapist Vicki Wong reported that in a review session on 26 April 2023, the applicant reported that his lower back pain condition had not resolved since 2021. Ms Wong recorded that the applicant reported ongoing lower back pain with pain radiating down his bilateral legs and that the applicant had restricted movement of his lumbar spine;
(xxxix)a record dated 26 April 2023 made by Dr Hilton Hua stated that an X-ray of the applicant’s hip showed early degenerative changes but no fractures and that the applicant’s hip pain was improving;
(xl)by letter dated 1 June 2023, Dr Hilton Hua stated that the applicant’s primary diagnosis and reason for application for disability support payment is lower back pain with claudication symptoms, due to congenitally narrow lumbar canal and exacerbation from workplace injury and disc injury mainly L4/L5 level. Dr Hua stated that the applicant:
“has had symptoms for many years prior to seeing Dr Singh. When seeing Dr Singh in 2020 these included poor sitting and standing tolerance. His condition also severely effects his gait and as a result difficulty with his activities of daily living, in particular, shopping, household chores and daily errands”.
Dr Hua noted that the applicant was under the care of Dr Singh who has discussed various surgical solutions and that the applicant was currently awaiting approval for decompression surgery from L4 to S1 to help with his ongoing symptoms;
(xli)a record dated 2 June 2023 made by Dr Hua stated that the applicant was provided with a Centrelink medical certificate regarding the diagnosis of disc bulge;
(xlii)a record dated 11 September 2023 made by Dr Mary Kozlowski stated that the applicant reported ongoing back pain and he was unable to work. The record stated that the applicant wanted to pursue surgical management, and
(xliii)various medical certificates certified that the applicant was unfit for work due to dis bulge and lumbar spine arthritis for periods which included; 16 November 2022 to 10 February 2023; 30 March 2023 to 30 June 2023; 2 June 2023 to 2 September 2023; 7 January 2023 to 7 January 2024; 20 October 2023 to 20 January 2024; 8 January 2024 to 20 April 2024,
(c)    The Workers Doctors, including:
(i)notes completed by physiotherapist Ka Wai (Gary) Ng dated 5 March 2020, which stated that the applicant reported injury on 30 November 2019 when he felt lower back pain at work when “unloading the 5kg gates”. It recorded that the applicant’s work duties as a truck driver included prolonged driving and lifting a gate up to 5kg. It recorded that the applicant experienced ongoing symptoms and functional limitations and restrictions;
(ii)a report dated 6 March 2020 competed by Dr Eric Lim recorded that the applicant initially presented for consultation on 5 March 2020 for an injury to his back and knee. It stated that the applicant reported that on 29 November 2019 “he suffered a Neck, shoulder, knee, hip and back injuries due to repetitive bending and lifting whilst loading trucks at work”. Dr Lim stated a diagnosis which included lumbar spine radiculopathy. Dr Lim stated that it would be reasonable to conclude that the mechanism of injury was a direct result of the applicant’s tasks in his role as a truck driver. Dr Lim stated that the history given is consistent with employment being the main contributing factor to the injury and that there was no medical evidence to indicate an alternative mechanism of injury;
(iii)a Certificate of Capacity completed by Dr Lim on 6 March 2020, stated a diagnosis which included lumbar spine radiculopathy and chronic pain as a result of repetitive bending and lifting while loading trucks at work and which occurred on 29 November 2019. It stated that the applicant had no current capacity for any work from 5 March 2020 to 26 March 2020;
(iv)a record dated 10 March 2020, completed by Mr Ng stated that the applicant had ongoing pain symptoms;
(v)an MRI lumbosacral spine performed on 13 March 2020, was reported to show L5/S1 disc osteophyte with contact of S1 nerve roots and broad herniation at L4/5 with annular tear and foraminal stenoses;
(vi)a multiphase bone scan performed on 31 March 2020 was reported to show moderate to severe facet joint arthritis at C4/5 on the right and low grade degenerative change in the lumbosacral spine, slightly more prominent at L4/L5/S1;
(vii)a record dated 23 July 2021 completed by Dr Lim, stated a diagnosis of L4/5 and L5/S1 disc bulge with canal stenosis and chronic pain. It stated a history that the applicant reported suffering a back injury whilst loading trucks at work on 29 November 2019 due to repetitive bending and lifting in the setting of years of physical work. It stated that the applicant was certified unfit for work from 23 July 2021 to 20 August 2021. It stated that the applicant continued to experience lower back pain which impacted his physical function. It stated that the applicant’s last day of work was 29 November 2019, that he had not worked in over eighteen months and that he is unlikely to return to his pre-injury duties as a truck driver. It stated that the applicant has been recommended surgery however is not in a situation to afford that treatment. It stated that, considering the applicant’s lack of alternate education, training and experience, he will not return to gainful employment;
(viii)a Permanent Incapacity Medical Certificate completed by Dr Lim on 28 September 2021 stated that the applicant had permanent incapacity to work caused by L4/5 and L5/S1 disc bulge with canal stenosis and chronic pain, and
(ix)a TPD Attending Doctor’s Statement completed by Dr Lim on 30 September 2021 stated that the applicant will not return to gainful employment.
(d)    Northmead Family Chiropractor, which included:
(i)an Adult Patient Form dated 3 December 2019, apparently completed by or on behalf of the applicant, which stated that he had lumbar symptoms that “past 2 months gotten worse”. The form stated that the applicant had lumbar pain which started two months prior. The form stated “driving for 38 years up and down/in & out of trucks all day x 6”.

Investigations

A CT scan performed on 23 November 2019 was reported to show changes at L4/5 and L5S1 with a moderate degree of canal stenosis.
A nuclear bone scan was reported to show inflammatory arthritis predominantly within the small joints of the hand, moderately severe facet joint arthritis at C4/5 and in the lumbosacral region at L4/5 and L5/S1.

Medical certificates

The evidence includes various medical certificates.

Independent medical evidence

Dr Yuk Kai Lee, orthopaedic surgeon

Dr Lee provided an independent medical opinion, qualified by the applicant.
In a report dated 26 July 2023, Dr Lee recorded a history that:
“The job involved a lot of lifting, opening and closing the heavy gates and tightening of the straps. He was driving interstate. On 29/11/2019, it was the day he stopped work. His injury was on 16/11/2019. As he climbed off his truck, his back seized up and he could not move. He could not work. He had to give the boss a week notice and he worked until 29/11/2019 when he officially stopped working. He was not aware he could put in his claim and he only put in his claim after he quit work when he saw his doctor. His doctor referred him to have scans and referred him to see Dr Singh. Dr Singh suggested surgery. The claim was denied and he could not have surgery. He could only walk about 50m and his legs became painful.”
Dr Lee diagnosed symptomatic spinal stenosis, which was aggravated by the applicant’s work for the respondent.
Dr Lee indicated that the applicant sustained a frank injury and that the applicant’s employment was a substantial contributing factor to the injury, noting that the applicant was asymptomatic prior to the injury.
Dr Lee also indicated that the applicant suffered from a disease injury, being spinal stenosis, and that his employment was the main contributing factor the aggravation, and/or acceleration, and/or exacerbation, and/or deterioration of that disease.
Dr Lee stated that the applicant injured his back when he stepped off his truck on 16 November 2019 and it was a frank injury. Dr Lee stated that the underlying condition was not caused by his employment but it was asymptomatic for the entire period he was working for the respondent as a truck driver since 2016. Dr Lee stated that the frank injury caused ongoing symptoms.
Dr Lee agreed that the applicant’s employment was not the main contributing factor to the aggravation, acceleration, deterioration or contraction of the disease injury but stated it was a substantial contributing factor to it becoming symptomatic.
Dr Lee stated that the applicant suffers from facet degeneration and spinal stenosis which is constitutional in origin, however it was asymptomatic. Dr Lee stated that the work injury described by the applicant aggravated the condition and caused the stenosis becoming symptomatic. Dr Lee stated that the applicant would not have become symptomatic to the extent to require surgery if he was not affected by the injury at work.
Dr Lee stated that the applicant had no capacity to work from 29 November 2019 to date. Dr Lee stated that the applicant had continuing disabilities and could not return to drive as a truck driver. Dr Lee stated that applicant’s prognosis was guarded however he may be able to resume certain duties, subject to restrictions, if he underwent laminectomy surgery.
In a supplementary report dated 19 October 2023, Dr Lee maintained his opinion that, when the applicant stepped off his truck on 16 November 2019, the applicant suffered a frank injury aggravating his pre-existing condition and causing it to become symptomatic when it had previously been asymptomatic. Dr Lee stated that in his opinion, the pre-existing condition was not caused by the applicant’s employment. However, Dr Lee maintained that his employment was nevertheless a substantial factor to his injury because it rendered symptomatic an injury that would not otherwise have become symptomatic.

Dr Peter Maloney

Dr Maloney provided an independent medical opinion, qualified by the respondent.
In a report dated 8 November 2021, Dr Maloney stated that the applicant reported an extremely vague history, to the effect that he had no problems with his back prior to 19 November 2019 as he was stepping down from his truck, when he experienced an onset of back pain, which gradually worsened. Dr Maloney noted that he was not aware of any reports of specific injury or episodes of aggravation apart from the incident when the applicant stepped down from his truck.
Dr Maloney diagnosed lumbar canal stenosis of constitutional origin, noting that a nuclear bone scan indicated that the applicant had widespread arthritic changes.
Dr Maloney stated that it was difficult to attribute the cause of the underlying problem to the nature and the conditions of the applicant’s employment and or to any specific injury in the workplace.
Dr Maloney stated that:
“The nature and conditions of his employment as a Truck Driver may have had a minor input into the genesis of the constitutional changes of canal stenosis at L4/5, L5/S1. During the course of his employment with [the respondent] the major loading strains that he put upon his body were the undoing and doing up of buckles and the pulling back of veils such that the forklift trucks could load and unload.
[The applicant] did not report any heavy lift, twist and set down activities and the activities that are recorded in the report from Dr Eric Lim dated 6 March 2020 are not borne out by history elsewhere or indeed by history to me or to Procare from [the applicant].”
Dr Maloney opined that “the genesis of [the applicant’s lumbar spine symptoms] is constitutional and that the likelihood of these sort of symptoms occurring to him at this time in his life away from the workplace is extremely high”.
Dr Maloney opined that the applicant is not currently fit for work and that likelihood of that changing is remote. Dr Maloney stated that it “is unlikely that [the applicant] will return to either pre-injury duties or suitable duties”.
In a report dated 8 June 2022, Dr Maloney stated:
“Mr Hohepa’s lumbar condition is lumbar canal stenosis which is a constitutional problem. I do not believe that his employment with [the respondent] is the main factor to the cause of his lumbar spine condition.
The investigations indicate that he has marked changes at L4/5 and L5/S1 which are consistent with a canal stenosis of constitutional origin. Were these changes to be present as a result of the nature and conditions of his employment there would be a series of injuries and episodes during the course of that employment with [the respondent] whereby he had an injury his back, had treatment, a graded return to work and further injuries, aggravations, accelerations et cetera. This is not the history. One cannot attribute the changes in his lumbar spine to merely stepping down from his truck.
The nature and the conditions of his employment do not include heavy manual handling. It was difficult to get a history from Mr Hohepa and the best I could manage was that during the course of his employment with [the respondent] the major loading strains that he put upon his body were the undoing and doing up of buckles and the pulling back of veils so that forklift trucks could load and unload.
Dr Eric Lim, his later General Practitioner, was unable to get any history of heavy manual handling. Dr Bisham Singh in his report to Untied Health Group dated 8 March 2022 when asked for a history of injury stated:
‘He gives a history of working as a driver which included loading and unloading. He climbed out of the truck and had back pain and was unable to walk. Since then, he has back pain with claudication symptoms.’
This is not a history of injury. It appears to me that Mr Hohepa is suffering with the symptoms of a constitutional problem and that he is trying to work this into his employment.
As I noted in my answer to Question 8 in my report on page 8:
‘Based upon the history that I have obtained and the findings on examination I think that his problem is constitutional in origin and that there is little in the way of evidence to suggest that this is a workplace injury either by specific injury or by the nature and the conditions of his employment. I think that the insurance company’s decision to dispute the claim is medically appropriate.’”
Dr Maloney stated:
“I do not believe that Mr Hohepa’s employment was the main contributing factor to any aggravation or deterioration (acceleration and exacerbation mean the same things). In the history that I have been able to get there are no instances of injury other than possible a minor jar as he alighted from his truck. He did not fall or stumble. Dr Lim his current General Practitioner and Dr Bisham Singh (Spine Surgeon) are unable to furnish any history of aggravation caused by injury. Merely stepping down from his truck is not enough.
I would suspect that Mr Hohepa has been symptomatic for a number of years and that the situation has just gradually got worse and he has formulated an incident to explain his current and ongoing symptoms and made a worker’s compensation claim out of it. I find Mr Hohepa unconvincing.”
In a report dated 26 March 2024, Dr Maloney reported that the applicant continued to complain of low back pain and right-sided gluteal pain, with radiating bilateral leg pain.
Dr Maloney stated that the applicant’s history was hard to substantiate. Dr Maloney stated that he was not able to obtain a history of any major injury to the applicant’s lumbar spine. Dr Maloney stated that the applicant stated that he suffered a frank injury to his back on 15 November 2019 when he stepped off his truck. Dr Maloney noted general practitioner clinical records regarding entries dated 8 October 2019, 23 November 2019 and 20 January 2020 and entries regarding symptoms of back pain and left-sided leg pain as far back as August 2017 and a CT scan which revealed spondyloarthritis and bulging discs.
Dr Maloney stated a diagnosis of canal stenosis at L4/5 and L5/S1, which is constitutional in origin.
Dr Maloney stated that he does not believe that the applicant suffered an injury arising out of the course of his employment.
Dr Maloney stated that the applicant’s employment was not a contributing factor to him contracting the disease. Further, Dr Maloney stated that the applicant’s employment was not the main contributing factor to either an aggravation and acceleration or an exacerbation and deterioration of the disease.
Dr Maloney stated that the applicant’s employment “may have contributed marginally” to the applicant’s underlying constitutional change becoming symptomatic, but he would not consider that his employment was a substantial contributing factor to the onset of the symptoms.
Dr Maloney stated that the applicant’s underlying constitutional problem causes intrusive pain to the point that the applicant had no capacity to work.
Dr Maloney did support the applicant undergoing further medical treatment recommended by Dr Singh.

SUBMISSIONS

Submissions were made as follows:
(a)    on behalf of the applicant, Mr Stanton made oral submissions at the hearing which were recorded;
(b)    on behalf of the respondent, Mr Doak provided written submissions dated 13 April 2024 in accordance with directions made by the Commission on 11 April 2024, and
(c)    on behalf of the applicant, Mr Stanton made written submissions in reply dated 16 April 2024.
Those submissions are on the record and I do not proposed to summarise them here. However, I have considered all of the submissions in detail and I have dealt with the issues raised where relevant in the course of these reasons.

FINDINGS AND REASONS

Did the applicant sustain an injury or disease or aggravation, acceleration, exacerbation or deterioration of a disease involving the lumbar spine? – ss 4(a), 9A, s 4(b)(i), 4(b)(ii) of the 1987 Act

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer.
The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 9A of the 1987 Act states:
“(1)    No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)     The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f)the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)     This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
In AV v AW,[1] Snell DP considered the expression, “main contributing factor” in s 4(b)(ii) and observed:
“The following may be taken from the above:
(a)The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b)The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c)In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
[1] [2020] NSWWCCPD 9.
The expression, “aggravation, acceleration, exacerbation or deterioration” of a disease for the purposes of s 4(b)(ii) of the 1987 Act was discussed by Windeyer J in Federal Broom Co Pty Ltd v Semlitch[2] (Semlitch):
“The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man's sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated.”[3]
[2] [1964] HCA 34; 110 CLR 626.
[3] Semlitch, at [640].
Justice Kitto in the same case found:
“Moffitt J. was right, I think, in saying: ‘There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism’. Accordingly if salt be applied to an open wound, making the would no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound.”[4]
[4] Semlitch, at [635].
In Commonwealth of Australia v Beattie [1981] FCA 88; 35 ALR 369 at 377-378, the Full Court of the Federal Court noted that Federal Broom Company Pty Ltd v Semlitch (1964) 40 CLR 626 establishes that there may be an exacerbation or aggravation, notwithstanding that there is no change in the underlying pathology.
A commonsense evaluation of the causal chain is required. The legal test of causation was set out by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[5] (Kooragang), where Kirby J stated:
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”[6]
[5] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[6] Kooragang, at [461] (Sheller and Powell JJA agreeing).
His Honour stated at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”

Although the High Court in Comcare v Martin[7] raised some concerns about the common sense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the common sense approach still has place in the application of the legislation to the present case.
[7] [2016] HCA 43, at [42].
Principles regarding the discharge of the onus of proof were considered by President Keating in Department of Education & Training v Ireland[8] (Ireland). In order for the applicant to discharge the onus that he sustained the alleged injury, I “must feel an actual persuasion of the existence of that fact”.
[8] [2008] NSWWCCPD 134, at [89], applying Nguyen v Cosmopolitan Homes [2008] NSWCA 246, per McDougall (McColl and Bell JJA agreeing) at [44]-[48].
The Court of Appeal in Nguyen v Cosmopolitan Homes[9] held that a tribunal of fact must be actually persuaded of the occurrence or existence of the fact before it can be found, and stated:
“(1)    A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)     Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)     Where circumstantial evidence is relied upon, it is not in general necessary that all reasonably hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found, and
(4)     A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[9] [2008] NSWC 246.
In this case, the medical evidence is consistent and it is uncontroversial that the applicant has clinically significant narrowing of the spinal canal in the lumbar spine.
It is necessary to determine whether that condition was:
(a) a frank injury to the lumbar spine sustained by the applicant on 15 November 2019 when he stepped down from the cabin of his truck, and the applicant’s employment was a substantial contributing factor to that injury; or
(b) a disease injury caused by the work that the applicant performed for the respondent up until 29 November 2019 when the applicant ceased work for the respondent due to incapacity, and the applicant’s employment was the main contributing factor to that disease injury; or
(c) an aggravation, acceleration, exacerbation or deterioration of a disease involving the lumbar spine with a deemed date of injury of 29 November 2019 (pursuant to s 16 WCA in the event of injury within the meaning of s 4(b)(ii) WCA), and the applicant’s employment was the main contributing factor to that aggravation, acceleration, exacerbation or deterioration.
Neither the factual evidence nor the medical evidence is clear cut in relation to those issues.

The factual evidence in relation to injury on 15 November 2019

In his statement dated 6 January 2021, the applicant stated that he first began to experience symptoms of lower back pain on 15 November 2019. The applicant stated that he never had any symptoms in his lower back or significant pre-existing injuries prior to that time. The applicant stated that there was no incident that caused or contributed to his symptoms and he does not know what brought the pain on.
However, in his statement dated 29 April 2022, the applicant stated that he had experienced various episodes of lower back pain from time to time since about 2017 as a result of his employment as a truck driver. The applicant also stated that on 8 November 2019, as he got out of his truck and landed on the ground, his usual back pain flared up and continued to worsen. The applicant stated that he had no previous relevant medical history with the exception of his employment.
In his statement dated 21 October 2023, the applicant noted inconsistency in his previous statements regarding the date he stepped out of his truck and felt back pain. The applicant stated that he cannot now recall the precise date, although he believes that the date specified in his statement dated 6 January 2021 is most likely correct.
In his statement dated 6 January 2021, the applicant stated that he reported the symptoms to supervisors at DHL and the respondent on 15 November 2019. In his statement dated 23 June 2022, the applicant maintained that on or about 8 November 2019, he told Mr Graham about his back pain. The applicant denied that he told Mr Graham that his back pain was related to any sport or other injury.
In his statement dated 6 January 2019, the applicant stated that he reported his sore back to Mr Graham on 25 November 2019, that Mr Graham refused to give him time off work and stated “Oh fuck, now another one on workers comp”. The applicant stated that he responded that Mr Graham should not worry about it and that he would fix his injuries himself.
In his statement dated 6 January 2021, the applicant stated that he did not attend a doctor prior to 2 December 2020 because he thought the pain might go away and he did not want to take time off work. In his statement dated 29 April 2022, the applicant stated that he tried to manage the pain himself at home for about two weeks after the date of injury but consulted a general practitioner on 23 November 2019 regarding increasing intermittent back pain for the last two months.
Mr Graham stated that he is not aware of the applicant having any previous injuries or back symptoms prior to 27 November 2019. Mr Graham stated that on 27 November 2019, the applicant advised Mr Martlew that he had a back injury and could not work any more and the applicant provided a medical certificate dated 25 November 2019. Mr Graham stated that he spoke with the applicant by telephone on 27 November 2019 and he asked if the applicant intended to make a workers compensation claim. Mr Graham stated that the applicant became very upset, saying words to the effect that he was not like that, he was not a dog, that he did not want to claim workers compensation, that he had just played hard and it was his life, and that he could not work for the respondent any more. Mr Graham stated that the applicant indicated that there was no incident, and it was just a matter of deterioration. Mr Graham stated that at no stage did the applicant inform him that the applicant injured himself when getting out of the prime mover;
Mr Graham stated that the safety rail used by drivers when alighting from the same truck cabins that the applicant operated are about 40cm to the ground from the bottom step when getting out of the truck.
Mr Martlew also stated that he was not aware of the applicant having any previous back injuries or symptoms prior to the applicant providing him with a medical certificate dated 25 November 2019. Mr Martlew stated that the applicant made reference to “old football injuries” catching up with him and that it was not appropriate for him to be sitting in a truck all day. Mr Martlew stated that the applicant did not advise him of any incident or work contribution to his condition and did not indicate any intention to claim workers compensation.
Both Mr Martlew and Mr Graham stated that it was the applicant’s policy that all incidents and injuries be immediately verbally reported to one of them.
The Procare Investigation Report states that the applicant did not attribute his symptoms to any specific incident or work practice, nor even the respondent. The report stated that the applicant attributed his symptoms to his work over a period of time in the transport industry.
The Procare Investigation Report states that the applicant described the manual handling components of his role with the insured, which present as light. The claimant described the most physical components of his role consisted of sliding, but not lifting, gates weighing approximately 5kg, and sliding tautliner curtains on the trailer.
The evidence fairly consistently shows that the applicant had no incapacity for work prior to 25 November 2019.
The evidence appears to consistently show that the applicant resigned from his employment on or about 25 November 2019 due to the back pain, and that his last day of work was 29 November 2019.
Treating general practitioner clinical records show that:
(a)    on 7 August 2017 the applicant reported pain in his left lower back, with radicular symptoms down his left leg, and noted the applicant’s work as a truck driver with no particular injury nor heavy lifting;
(b)    on 8 August 2017, an X-ray lumbosacral spine was reported to show some spondylotic changes throughout the spine, but no other significant lesion;
(c)    on 9 August 2017, a CT lumbosacral spine was reported to show disc bulges at L4/5 and L5/S1 with bilateral facet joint arthropathy and generalised congenitally short pedicles causing moderate canal narrowing at those levels and also mild exit foraminal narrowing;
(d)    on 17 August 2017, the applicant reported that his symptoms had somewhat self-improved;
(e)    on 22 August 2018 the applicant reported intermittent coccygeal pain, and noted that the applicant worked as a truck driver but did not have any particular trauma;
(f)    on 5 October 2019, the applicant reported: one week of bilateral hip and low back pain and mild stiffness of gradual onset; the ache radiating to the back of the bilateral thighs; pain worsened by movement and improved with resting; difficulty rising from a chair after sitting for a while; no history of trauma or falls; and that he works as a truck driver;
(g)    on 8 October 2019, the applicant reported:10 days of bilateral hip and low back and mild stiffness of gradual onset;
(h)    on 23 November 2019, the applicant reported ongoing symptoms of back pain which radiated to both legs, with a stated diagnosis of sciatica;
(i)    on 23 November 2019, the applicant underwent a CT which was reported to show: mild spondylotic changes; and moderately severe central narrowing at the L4/5 and L5/S1 levels potentially irritating nerve roots and accounting for the sciatica symptoms;
(j)    on 23 November 2019, the applicant underwent an X-ray lumbar spine which was reported to show: osteoarthritis at the sacroiliac joints; and not other additional findings to those described on the CT;
(k)    on 25 November 2019, the applicant was provided with a medical certificate in relation to his back symptoms.
I note that there are a number of inconsistencies in the evidence.
The treating medical evidence indicates that the applicant did report lower back pain with radicular symptoms on 7 August 2017 and that investigations then showed some spondylotic changes, disc bulges and canal narrowing. It is significant that the clinical records did not indicate any reported cause of injury apart from reference to the applicant’s work as a truck driver with no particular injury nor heavy lifting.
In any event by 17 August 2017, the applicant reported that his symptoms had somewhat self-improved. There is no evidence that the applicant was incapacitated to work or required significant treatment.
On 22 August 2018, the applicant reported intermittent coccygeal pain, however there was no report of lower back or radicular symptoms. In any event, it is again significant that the clinical records noted that the applicant did not have any particular trauma and did not indicate any reported cause of injury apart from reference to the applicant’s work as a truck driver. Again, there is no evidence that the applicant was incapacitated to work or required significant treatment.
There is no evidence of any subsequent report of lower back pain until 5 October 2019, when the applicant reported a history one week of bilateral hip and low back pain and radicular symptoms. Significantly, the applicant reported that the gradual onset of those symptoms with no history of trauma or falls and that he worked as a truck driver. That is also consistent with the reported history in the clinical records of 8 October 2019.
The applicant’s evidence is that since about 2017, he had various episodes of lower back pain occurring from time to time which he self-managed without taking time off work. The applicant attributes those symptoms to his work duties.
Notwithstanding that evidence and the pathology identified in August 2017, the applicant’s denial of any previous injury prior to the incident on or about 15 November 2019 can be understood in the sense that there is no evidence of any particular significant relevant work injury, trauma or injurious event which prevented the applicant from working for the respondent prior to that time. That is consistent with the evidence of Mr Martlew and Mr Graham that there was no previously reported injury notwithstanding the respondent’s policy for injuries to be reported to Mr Graham or Mr Martlew.
The applicant’s evidence that he sustained lower back injury on 15 November 2019 when he was stepping down from his truck is also somewhat inconsistent with various other factual and medical evidence. Again, I note that there is no evidence of reports of any particular traumatic or injurious event or occurrence. There is no evidence that the applicant’s stepping down from his truck on that occasion was out of the ordinary or remarkable apart from the applicant sustaining significant and increasing pain. The applicant explained that the significant pain that he experienced on that occasion was a “flare up” of his “usual back pain”, which began to radiate down to his legs and increased in severity as he walked to the back of the truck and then continued to increase in severity over the course of his shift.
The applicant has explained his inconsistency in the reported dates of onset of his lower back symptoms by his uncertainty as to the relevant dates. That is somewhat consistent with other medical evidence that the applicant was a poor historian.
I note that the applicant denies telling Mr Martlew and Mr Graham that his back pain was due to old football injuries. In any event, there is no medical evidence that the applicant sustained football injuries.
Both the applicant and Mr Graham consistently state that Mr Graham questioned the applicant whether he intended to make a workers compensation claim and that the applicant denied that he would do so. I consider that the applicant’s evidence that Mr Graham stated “Oh fuck, now another one on workers comp” indicates that the applicant perceived that Mr Graham was disparaging and unsupportive of another employee making a claim for workers compensation. I consider that Mr Graham’s evidence that the applicant said he would not be a “dog” indicates that the applicant perceived that making a claim for workers compensation would be regarded negatively and with an element of shame. On that basis, it is somewhat understandable that the applicant responded to the effect that he would not do so.
In any event, the applicant’s initial denial that he would make a claim for workers compensation seems at least to be consistent with the applicant’s evidence that he tried to manage the injury himself in the early stages.
Dr Lee reported that the applicant stated that he was not initially aware that he could make a workers compensation claim and that he made a claim when he saw his doctor after he quit work.
Considering the evidence as a whole, notwithstanding the various inconsistencies, I do form the clear impression that the applicant has tried his best to provide an honest and accurate history and I accept the credibility of the applicant’s evidence.
Considering the evidence as a whole, I am satisfied on a commonsense evaluation of the causal chain that it is logical and likely, and I find, that on or about 15 November 2019, as the applicant stepped down from his truck in the course of his work, the applicant did experience a significant flare up of lower back pain which radiated to both legs, and which continued to significantly increase over the course of his work shift.

The factual evidence in relation to disease injury due to the nature and conditions of the applicant’s work

The applicant stated that his work duties with the respondent required him to repetitively enter and disembark from his truck, walk, sit and prepare the trailer for loading and unloading, which included lifting a metal gate out of its socket, fastening and unfastening buckles, pulling a trailer curtain and replacing the goods strap. The applicant asserts that his injury was caused by him performing those repetitive tasks.
Mr Graham’s evidence is that the applicant worked 10 to 12 hours per day, five days each week, and probably averaged between four to eight runs each day. Mr Graham stated that on each run, the applicant was required to prepare the trailer for unloading and after loading. Mr Graham detailed the physical components of the applicant’s job, which included securing and unsecuring buckles, sliding the trailer curtain, moving aluminium hanging gates (which he estimated to weigh approximately 5 of 6kg), hooking and ratcheting straps and driving the truck. Mr Graham denied that the applicant’s various duties were physically demanding.
Mr Martlew gave similar evidence in relation to the applicant’s physical duties. Mr Martlew stated that the gates weighed approximately 5 or 6kg and they were attached to the roof of the trailer by a flexible bungy type strap which would take weight of the gate when the applicant pulled them back. Mr Martlew stated that the load restraint straps were on a pully system on the roof of the trailer and the applicant used a hook to pull the straps down from the roof of the trailer, secured the straps to the side of the trailer and then tightened them. Mr Martlew stated that the applicant was then required to close the curtains and refasten the buckles.
Considering the evidence as a whole, I am satisfied on a commonsense evaluation of the causal chain that it is logical and likely, and I find, that in the course of the applicant’s work he regularly performed repetitive manual tasks which included moving hanging gates which weighed at least 5kg, hooking and ratcheting straps, opening and closing curtains, securing and unsecuring buckles and sitting for long periods.

The medical evidence in relation to injury

Dr Lee, orthopaedic surgeon, provided independent medical evidence, qualified by the applicant. Dr Lee expressed the opinion that, when the applicant stepped off his truck on 16 November 2019 (it seems likely that date was intended to be 15 November 2019), the applicant suffered a frank injury which aggravated his pre-existing constitutional condition of facet degeneration and spinal stenosis, and caused it to become symptomatic when it had previously been asymptomatic. Dr Lee accepted that the pre-existing condition was not caused by the applicant’s employment. However, Dr Lee maintained that the applicant’s employment was nevertheless a substantial factor to the injury because it rendered symptomatic an injury that would not otherwise have become symptomatic.
Dr Maloney provided independent medical evidence, qualified by the respondent. Dr Maloney diagnosed lumbar canal stenosis of constitutional origin. Dr Maloney did not accept that the condition was caused by specific injury nor by the nature and the conditions of the applicant’s employment. After considering the applicant’s most recent statement, Dr Maloney stated that there was no clear history that the nature and conditions of the applicant’s employment included heavy manual handling. Dr Maloney employment did not accept that the applicant’s employment was the main contributing factor to any aggravation, acceleration, exacerbation or deterioration of the lumbar canal stenosis. Dr Maloney based his opinion in that regard on there being no evidence of instances of injury “other than possible a minor jar as he alighted from his truck”. Dr Maloney stated that “merely stepping down from his truck” is not enough to cause an aggravation or deterioration. Dr Maloney suspected that the applicant’s condition had been symptomatic for a number of years and it had gradually worsened to the extent of becoming symptomatic. Dr Maloney accepted that the applicant’s employment “may have contributed marginally” to the applicant’s underlying constitutional change becoming symptomatic, but he did not consider that the applicant’s employment was a substantial contributing factor to the onset of the symptoms.

The applicant’s treating orthopaedic surgeon, Dr Singh, diagnosed L4/5 lumbar canal stenosis on the background of disk height loss from L4 to S1. Dr Singh expressed the opinion that the incident on or about 15 November 2019 and the nature and conditions of the applicant’s work was the main contributing factor to aggravation of the applicant’s previously asymptomatic congenital lumbar canal stenosis and the applicant’s current symptoms.
The applicant’s treating general practitioner, Dr Tiwari, diagnosed disc bulge, lumbar spine arthritis and spinal canal stenosis at T11/12, L4/5 and L5/S1. Dr Tiwari expressed the opinion that the applicant’s repetitive work tasks likely contributed to the development, acceleration and exacerbation of the applicant’s degenerative lumbar spine condition.
The applicant’s nominated treating doctor, Dr Lim, expressed the opinion that performance of the applicant’s work tasks was the main contributing factor to the applicant’s lumbar spine radiculopathy.
Considering the medical evidence as a whole, I accept that the applicant has disc bulge, lumbar spine arthritis and spinal canal stenosis at T11/12, L4/5 and L5/S1.
I have discussed the treating medical evidence above. I note that there is evidence that the applicant intermittently reported some lower back pain from as early as 2017.
Considering the medical evidence as a whole, I accept that the applicant’s lumbar spine condition was constitutional.
Generally, I note that there is no clear evidence of any significant injurious event or trauma, apart from the history reported by the applicant. As I discussed above, notwithstanding some evidence that the applicant referred to old sports injuries, there is no other evidence of such injuries.
In any event, it is clear from the evidence that at all times prior to 15 November 2019 (or thereabouts), the applicant had capacity to work full-time in his role with the respondent.
Further it is clear, and I accept, that from 15 November 2019 (or thereabouts), the applicant experienced significant and ongoing lumbar spine pain and symptoms to the extent that he was incapacitated to work and required ongoing medical treatment.

Frank injury

In relation to the issue of a frank injury when the applicant stepped down from his truck on or about 15 November 2019, I note the evidence of Mr Graham that the safety rail used by drivers when alighting from the same truck cabins that the applicant operated are about 40cm to the ground from the bottom step when getting out of the truck. That has not been disputed by the applicant and I accept it to be the case.
I accept that there is no evidence, and indeed no assertion by the applicant, that he fell or stumbled on that occasion or that his stepping down from the truck was remarkable apart from the significant pain that he sustained.
However, as stated above, I accept that on or about 15 November 2019, as the applicant stepped down from his truck in the course of his work, he did experience a significant flare up of lower back pain which radiated to both legs, and which continued to significantly increase over the course of his work shift.
In relation to the issue of a frank injury on or about 15 November 2019, I prefer and accept the opinion of Dr Lee that, when the applicant stepped off his truck he suffered a frank injury which aggravated his pre-existing constitutional lumbar spine condition and caused it to become symptomatic when it had previously been asymptomatic. Contrary to the opinion of Dr Maloney, Dr Lee clearly accepted that an aggravation and exacerbation of the applicant’s constitutional condition could occur from such an event. Having regard to the evidence as a whole, including the temporal connection between that event and the significant escalation of the applicant’s symptoms and incapacity, this seems to me to be the most likely and logical course of events.
On that basis, I find that the applicant sustained a frank injury to his lumbar spine on or about 15 November 2019 and that the applicant’s employment was the main contributing factor to the aggravation and exacerbation of his constitutional lumbar spine condition.

Nature and conditions

In relation to the issue of the nature and conditions of the applicant’s work, as stated above I accept that in the course of the applicant’s work, he regularly performed repetitive manual tasks which included moving hanging gates which weighed at least 5kg, hooking and ratcheting straps, opening and closing curtains, securing and unsecuring buckles and sitting for long periods.
Dr Maloney stated that the applicant’s employment “may have contributed marginally” to the applicant’s underlying constitutional change becoming symptomatic, but he did not not consider that the nature and conditions of the applicant’s employment was not a substantial contributing factor to the onset of the symptoms.
Dr Maloney stated that had the ‘nature and conditions’ of the applicant’s employment been the cause of the condition, it would be expected that there would have been reports of injuries to the applicant’s back at work prior to November 2019, and that the treating medical records do not show such a work cause of the symptoms. To some extent, that argument does not seem to logically fit with the evidence of symptoms reported between 2017 and 23 November 2019. Whilst the clinical records dated 7 August 2017, 22 August 2018 and 5 October 2019 did not specifically attribute the applicant’s symptoms to his work duties, they did note that he worked as a truck driver and they did not record any other cause for the symptoms.
The applicant’s treating general practitioners, Dr Tiwari and Dr Lim, expressed the opinion that the nature and conditions of the applicant’s employment would likely have contributed to the acceleration and exacerbation of the constitutional disease process, although the extent of such contribution was unclear from their evidence.
Dr Singh also expressed the opinion that the nature and conditions of the applicant’s work of unloading and loading trailers was the main contributing factor to the applicant’s lumbar spine condition becoming symptomatic.
I accept that the applicant’s treating doctors did not have the benefit of considering the applicant’s most recent statement regarding the nature of his work duties, but they did have the benefit of developing knowledge about the applicant as they were treating him over a period of time.
Considering the evidence as a whole, and the various factors that I have referred to above, I find the treating medical evidence to be persuasive. However, I note that it is not supported by any expert medical opinion.
On that basis, and weighing the evidence as a whole, I do not find that the nature and the conditions of the applicant’s employment was the main contributing factor to the aggravation and exacerbation of his constitutional lumbar spine condition.

Findings in relation to injury

Accordingly, I find as follows:
(a) the applicant did not sustain an injury to his lumbar spine with a date of injury of 15 November 2019 pursuant to ss 4(a) and 9A of the 1987 Act;
(b) the applicant did not sustain an injury to his lumbar spine with a deemed date of injury of 29 November 2019 as a result of the nature and conditions of work pursuant to 4(b)(i) of the 1987 Act, and
(c) the applicant did sustain aggravation and exacerbation of a disease in his lumbar spine arising out of or in the course of employment and his employment was the main contributing factor to the aggravation and exacerbation, with a deemed date of injury of 29 November 2019 pursuant to s 4(b)(ii) of the 1987 Act.

The applicant’s entitlements pursuant to s 60 of the 1987 Act

On the basis of my findings above, it is appropriate to make a general order for payment of medical expenses pursuant to s 60 of the 1987 Act.

The applicant’s entitlements pursuant to ss 33, 36, 37 and 38 of the 1987 Act

The applicant claims weekly benefits:
(a) in respect of the period from 30 November 2019 to 29 February 2020, pursuant to s 36 of the 1987 Act;
(b) in respect of the period from 1 March 2020 to 28 May 2022, pursuant to s 37 of the 1987 Act, and
(c) in respect of the period from 29 May 2022 ongoing, pursuant to s 38 of the 1987 Act.
The applicant’s pre-injury average weekly earnings was agreed to be $1,772.27.
In relation to the issue of incapacity:
(a)    Dr Lee stated that the applicant had no capacity to work from 29 November 2019 to date. Dr Lee stated that the applicant’s prognosis was guarded however he may be able to resume certain duties, subject to restrictions, if he underwent laminectomy surgery;
(b)    on 8 November 2021, Dr Maloney opined that the applicant had no capacity to work and that likelihood of that changing is remote;
(c)    on 7 February 2022, Dr Tiwari expressed the opinion that it is very unlikely that the applicant is fit to return to work in any capacity, particularly in the absence of surgical intervention;
(d)    on 26 March 2024, Dr Maloney stated that the applicant’s underlying constitutional problem causes intrusive pain to the point that the applicant had no capacity to work, and, further
(e)    various medical certificates certified that the applicant was unfit for work due to dis bulge and lumbar spine arthritis for periods which included; 16 November 2022 to 10 February 2023; 30 March 2023 to 30 June 2023; 2 June 2023 to 2 September 2023; 7 January 2023 to 7 January 2024; 20 October 2023 to 20 January 2024; 8 January 2024 to 20 April 2024.
On the basis of that evidence, it appears that the applicant had no capacity to work as a result of the injury from 30 November 2019 ongoing.
However, the matter is somewhat complicated because the applicant undertook some work as a UBER driver since he ceased employment with the respondent.
I consider that it is appropriate, as a matter of procedural fairness, that the respondent should have an opportunity to respond to the applicant’s written submissions on the issue of incapacity, noting that the applicant’s solicitor served an updated wages schedule on Friday, 12 April 2024 in compliance with directions made by the Commission on 11 April 2024.
Accordingly, I propose to list the matter for a conference to deal with the issue of calculation of the applicant’s entitlements to weekly compensation.

Summary

The Commission finds:
(a) the applicant did not sustain an injury to his lumbar spine with a date of injury of 15 November 2019 pursuant to ss 4(a) and 9A of the 1987 Act;
(b) the applicant did not sustain an injury to his lumbar spine with a deemed date of injury of 29 November 2019 as a result of the nature and conditions of work pursuant to 4(b)(i) of the 1987 Act, and
(c) the applicant did sustain aggravation and exacerbation of a disease in his lumbar spine in the course of employment and his employment was the main contributing factor to the aggravation and exacerbation, with a deemed date of injury of 29 November 2019 pursuant to s 4(b)(ii) of the 1987 Act.
The Commission orders:
(a) the respondent to pay the applicant’s expenses in accordance with s 60 of the 1987 Act upon production of accounts, receipts or Medicare Notice of Charge, and
(b) the matter is to be listed for a conference to deal with the issue of calculation of weekly compensation pursuant to ss 33, 36, 37 and 38 of the 1987 Act.

[2024] NSWPIC 234

7 May 2024