Hoque v Venice Projects Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Hoque v Venice Projects Pty Ltd [2023] NSWPIC 159
APPLICANT:	Yasin Hoque
RESPONDENT:	Venice Projects Pty Ltd
Member:	Jill Toohey
DATE OF DECISION:	13 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments; whether applicant sustained Injury to lumbar spine arising out of or in the course of his employment; applicant had previous surgery to lumbar spine; whether that condition had resolved; applicant claimed injury in 2022 while working as a labourer; applicant indicated different dates of injury; reliance on clinical records; whether chain of causation broken by subsequent injury; whether applicant had incapacity as a result of injury; Held – finding that applicant sustained injury arising out of or in the course of his employment; chain of causation not broken; finding the applicant had period of no current capacity followed by capacity for three hours per day on three days per week; pre injury average weekly earnings (PIAWE) agreed; respondent to pay weekly payments accordingly.
determinations made:	1. The respondent has leave to lodge late documents given to the Commission on 21 March 2023. 2. The applicant sustained injury to his lower back arising out of or in the course of his employment with the respondent on 4 February 2022. 3. The applicant had no current capacity for employment from 4 February 2022 to 22 April 2022. 4. The applicant has had capacity for employment for three hours per day on three days each week, totalling nine hours per week, from 22 April 2022 to date and continuing. 5. The respondent to pay the applicant weekly payments based on his agreed pre-injury average weekly earnings of $1526.40 pursuant to ss 36 and 37 of the Workers Compensation Act 1987 in accordance with orders 3 and 4 above. 6. Parties have liberty to apply with respect to the calculation of weekly payments.

STATEMENT OF REASONS

BACKGROUND

Yasin Hoque (the applicant) arrived in Australia by boat from Burma as a refugee in 2013. He was taken to Nauru and remained there until 2016 when he was transferred to Australia for medical treatment. He was released from immigration detention in 2017 and given a bridging visa that allowed him to work.
Mr Hoque worked as a labourer for a company in South Australia for approximately one year from 2017. He resigned to take up a position in Sydney with Venice Projects Pty Ltd (the respondent). He worked for the respondent from May 2018 until 4 February 2022 except for approximately two months at the end of 2021 when he worked for another employer.
Mr Hoque claims he injured his lower back on 4 February 2022 while working on a building site at an address in Dulwich Hill. He has not worked since.
Mr Hoque first sought treatment for his injury on 24 March 2022 when he attended Canterbury Hospital emergency department. According to hospital records, he said he had injured his back at work six days earlier.
On 25 March 2022, Mr Hoque saw general practitioner, Dr Nazma Rahman, about his injury. On 8 April 2022, Dr Rahman issued a Certificate of Capacity which recorded the date of injury as 11 February 2022.
On 10 April 2022, Mr Hoque completed a Workers Injury Claim Form. He indicated that the injury occurred at 2.20pm on 11 February 2022 at the address in Dulwich Hill.
In a statement taken by an investigator on 26 April 2022, Mr Hoque stated that the date of injury was “11 February 2022 and not 1 February 2022”.
In a statement of evidence dated 14 August 2022, Mr Hoque stated that he was unsure of the date of injury when he completed the Workers Injury Claim Form; he thought it was
11 February 2022 but he had now been advised that he did not work after the week ending
6 February 2022, so he assumed the injury occurred on 4 February 2022 because that was his last day of work with the respondent.
By a dispute notice issued on 14 June 2022, the respondent disputed that Mr Hoque sustained injury to his lower back on 4 February 2022 and, if he did, that he had any incapacity as a result.
These proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (Commission) on 9 December 2022. Mr Hoque claims weekly payments from 4 February 2022 to date and continuing.

ISSUES FOR DETERMINATION

The parties agree that the issues remaining in dispute are:
(a) whether Mr Hoque sustained injury to his back on 4 February 2022 in the course of his employment with the respondent, and
(b) if so, whether he had any incapacity as a result of his injury.

PROCEDURE BEFORE THE COMMISSION

Parties attended a conciliation conference and arbitration hearing by MS Teams on
21 March 2023. Mr Hoque was represented by Mr Tom Grimes of counsel instructed by
Mr Logan Glover. The respondent was represented by Mr Graham Barter of counsel instructed by Ms Emily Kheir. The parties were unable to reach agreement and the matter proceeded to hearing.
Mr Grimes sought leave to amend the pre-injury average weekly earnings (PIAWE) claimed in the ARD to $1526.40. Parties agreed that figure represents Mr Hoque’s PIAWE. Leave to amend the ARD accordingly was granted.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents (AALD) lodged by the applicant on
13 March 2023 and attached documents;
(d)    AALD lodged by the respondent on 15 March 2023 and attached documents, and
(e)    AALD lodged by the respondent on 21 March 2023 and attached documents.

Oral evidence

Neither party sought leave to adduce any oral evidence or cross-examine any witness.

Mr Hoque’s statements

Mr Hoque provided a statement to an investigator on 26 April 2022[1] and a written statement of evidence dated 14 August 2022.[2] In broad terms, they recount the same history. The following is a summary.
[1] Reply page 13.
[2] ARD page 1.
Mr Hoque was born in Burma in 1985. He left Burma for Malaysia where he spent four or five years before coming to Australia by boat in 2013. He was taken to Nauru on his arrival and returned to Australia in 2015 for medical treatment. He remained at Villawood Detention Centre until 2017 when he was released and went to Adelaide for work. He worked there as a labourer for about one year from July 2017. He relocated to Sydney in May 2019[3] and started working for the respondent the same month.
[3] This date appears to be incorrect: other evidence, including Mr Hoque’s subsequent statement of evidence, is that he returned to Sydney in May 2018 and started work for the respondent in May or June 2018.
The statement taken by the investigator records that Mr Hoque said he had “no significant medical history”. It is not clear what he meant because, in the same statement, he is recorded as saying that he had a back injury in Burma when he was beaten by the military. After seeing a doctor on Nauru, he was transferred to Australia in 2015 for medical treatment. Doctors at the Villawood Detention Centre referred him to a specialist at St Georges Hospital where he underwent a lower back operation.
In his statement dated 14 August 2022, Mr Hoque stated that he suffered an injury to his lower back in about 2012 while working in Malaysia. He identified the doctor who operated on his back in Sydney as neurosurgeon, Dr Ghahrema. He stated that it took about six months to rehabilitate following the operation, after which he was able to resume his normal life. He had been going to the gym, playing soccer and working. He did not have any “issues” with his lower back until the day he was using the jackhammer while working for the respondent.
He worked for the respondent as a general labourer in demolition and renovations. He had a verbal agreement with Ross Trovato, the director, that he would be employed as a casual labourer in demolition and renovations for a week on a trial basis, and ongoing after that if he liked the work. On several occasions, Mr Trovato asked him to perform extra hours but he was never paid overtime. Whenever he approached Mr Trovato about payment for overtime, “he would just smile and walk away.”
In his statement to the investigator, Mr Hoque said his agreed hourly rate when he started was $25.00 per hour. It gradually increased to $30.00 then $32.00, and to $35.00 per hour in December 2021. He stated he had recently found out that he was being paid $40.50 per hour after his injury. When he approached Mr Trovato about his hourly rate he became “very aggressive”. In approximately November or December 2021, he requested an increase in his hourly rate to $60.00 and Mr Trovato agreed to pay him $45.00 per hour.
One day in October 2021, Mr Trovato asked him to work at an address in Woollahra. During a telephone conversation about materials for the job, Mr Trovato “started yelling and swearing” at him and Mr Hoque felt “bullied by him”. He did not return to work the following day. When Mr Trovato rang him, Mr Hoque said he would not return to work until he had a written agreement that Mr Trovato would not “yell or scream” at him. Mr Trovato said he would not do that (by which I understand him to say that Mr Trovato would not provide a written agreement) and told him to “take a few days off to cool down then return to work”.
Following this incident, Mr Hoque was employed as a carpenter by another company for approximately two months. During this time, Mr Trovato kept ringing him and was “very calm and pleasant”. One Sunday in December 2021, he picked Mr Hoque up from the train station and took him to a construction site at the address in Dulwich Hill where Mr Hoque says he later injured his back. Mr Trovato asked him to look after the site and gave him a managerial position.
Mr Hoque told the investigator that the date of injury was “11 February 2022 and not
1 February 2022”. It is not clear from his statement what this was intended to correct and no other documents in evidence make it clear. Dr Courtenay recorded the date of injury as 1 February 2022 but he saw Mr Hoque in September 2022, several months after the statement to the investigator. In any event, Mr Hoque stated that, on 11 February 2022, he started work at 7.00am at the Dulwich Hill address. He was required to do jackhammering using a jackhammer that weighed approximately 50kg. He worked alone that day, jackhammering a pergola area 6x3m in size, collecting it by hand and placing it in a bucket and carrying it to a skip bin. He did this from 7.00am to 3.30pm. Just before lunch, he noticed pain in his lower back. When he returned from his lunch break, he found it difficult to stand up and felt sharp pain in his lower back. He did stretches by himself and did jackhammering until finish time.
Mr Hoque stated that he did not report his pain to Mr Trovato who had never explained that he needed to report an injury to him. He said Mr Trovato is “very volatile” and he was concerned he would lose his job if he reported it.
That afternoon while he was still working, Mr Trovato rang him to say the skip bin company had rung to say there was asbestos in the bin they collected. Mr Trovato told him to travel to the bin site and separate the asbestos material. The next day, on Saturday, he was not able to get out of bed because of his back pain. He did not ring Mr Trovato to inform him he would not be able to clear the asbestos from the skip bin.
According to Mr Hoque’s second statement, Mr Trovato telephoned him the next day and asked him to work the following Monday. Mr Hoque said he was not available because he knew his injury would prevent him from working. He was concerned he would lose his job if he reported the injury.
Mr Hoque stated that his visa is renewed every six months; attached to it is an entitlement to use Medicare for medical treatment. At the time of the injury, he did not have a current Medicare card and was waiting for a new one to be issued. He went to Centrelink to apply for one and was refused. He went back a couple of days later and was granted one. He received it on 24 February 2022 and took it to Canterbury Hospital where he sought advice about his back injury. There was no interpreter available at the hospital.
Mr Hoque told the investigator he went to Canterbury Hospital, and then saw his general practitioner, Dr Rahman. He could not recall either date. Dr Rahman referred him for a CT scan. When he returned with the results, she told him that he could not work anymore with his injury. She prescribed medication and a steroid injection and referred him to Dr John Best at the Injury Clinic for Asylum Seekers and Refugees.
Mr Hoque first saw Dr Best on 15 or 16 March 2022. Dr Best recommended he make a claim for workers compensation. At about that time, he had also been given advice by some friends that he should make a claim for workers compensation. Before then, and before he was advised by Dr Best, he did not understand that he would be entitled to compensation. He was assisted to complete a workers injury claim form and signed it on 10 April 2022.
In his second statement, Mr Hoque said that, at the time he completed the worker injury claim form, he looked at his diary to try to work out the date of injury. He thought it happened on 11 February 2022 but he understood the insurer was saying he did not work after the week ending 6 February 2022. Mr Hoque stated that, if that is correct, he assumes the accident occurred on 4 February 2022. He was not sure about those dates but, doing the best he can, he believed that was the actual date.
He has not worked since the date of injury. He remains under the care of Dr Rahman and has seen Dr Best on three or four occasions. Dr Best has advised that he will probably need an operation on his back but he cannot afford to pay for it at the moment. He still has severe back pain which radiates into his left leg. He has difficulty standing and cannot lift or carry heavy objects. He does not believe he could return to work because the pain is too great.

Workers injury claim form

Mr Hoque signed the workers injury claim form on 10 April 2022.[4] According to his statement of evidence, he was assisted to complete the form. It is not clear who provided that assistance. He indicated that the date of injury was 11 February 2022 at 2.20pm at the address in Dulwich Hill. He described how the injury happened as follows:
“I was jackhammering concrete slabs. I had to pick up the pieces of broken concrete and deposit it in the bin. When I was picking up the concrete I felt sudden pain in my lower back.”
[4] ARD page 3.
Mr Hoque described the injury on the form as “significant left L4/5 disc protrusion with left L5 (and possibly L4) nerve root compression”. He described the body parts affected as “left foot, left calf, left leg, lower back”.
Mr Hoque stated on the form that he first reported the injury to his employer on
26 March 2022; the delay was because he is “new migrant and didn’t know I could claim” and he did not realise how badly he was injured. He was working alone at the time.

Mr Trovato’s statements

Mr Trovato provided a statement to the investigator on 28 February 2022[5] and a supplementary statement dated 9 March 2023.[6] He stated that Mr Hoque commenced his employment in May or June 2018 on a one-month trial. After five days, Mr Hoque asked him for a permanent job and Mr Trovato agreed to employ him as a full-time casual; he preferred the extra wages as a casual over employee entitlements.
[5] Reply page 25.
[6] Respondent’s AALD lodged 15 March 2023.
Mr Trovato stated that he gave Mr Hoque “a verbal induction” and “on the job training”. His hours were 7am to 3.30pm Monday to Friday with casual overtime hours on Saturday if required. Any hours worked beyond the stated hours were paid as overtime.
Mr Trovato stated that he had a verbal agreement with Mr Hoque to employ him at $25.00 per hour plus 10% superannuation. The rate increased to $30.00 per hour in June 2020 and then $32.00 per hour through to 20 September 2021. When Mr Hoque realised that painters at the Woollahra site were paid very well, he asked if he could paint that house. They had a verbal agreement that he would be paid $50.00 per hour for a small amount of external painting work only. One week before 20 September 2021, Mr Hoque asked for an increase to $35.00 per hour. Mr Trovato explained that, with superannuation, his hourly rate would be $38.50. (I understand Mr Trovato to say that this would be too much.) As he did not increase
Mr Hoque’s hourly rate, Mr Hoque left about a week later and started work for another builder.
In late November 2021, he and Mr Hoque met and discussed a new site that Mr Trovato had just secured. They agreed that Mr Hoque would head the demolition team at an agreed “one off rate” of $45.00 per hour including superannuation. On 8 December 2021, Mr Hoque resumed work for him at the Dulwich Hill site. After an initial payment, Mr Trovato’s wife adjusted his pay when she realised that he was being paid $45.00 plus superannuation.
Mr Trovato states that Mr Hoque left his job on 20 September 2021 after Mr Trovato said he could not pay him $45.00 an hour. Around the end of November 2021, he asked to come back to work because he was not happy with the builder he was working for. He started work at the address in Dulwich Hill on 6 December 2021. He was using a jackhammer to break up a concrete path at the rear of the building. He asked for $45.00 an hour and Mr Trovato agreed. Mr Hoque stopped for holidays on 21 December 2021. He re-commenced on
10 January 2022 and finished his employment on 4 February 2022.
Throughout January 2022, another worker was at the Dulwich Hill site with Mr Hoque. From 31 January 2022 until his last day on 4 February 2022, Mr Hoque worked on his own at the site and Mr Trovato would make visits to supervise. The last time he actually worked with
Mr Hoque was on 28 January 2022.
Mr Trovato disputes Mr Hoque’s evidence about their conversation following his injury. He says he had given Mr Hoque notice on 20 January 2022 and his last day was on
4 February 2022. On the day Mr Hoque claimed to have been injured, Mr Trovato was contacted by the skip bin company and told they could not empty the bin because it had asbestos in it. He asked Mr Hoque to go to the yard on the following Monday and remove the asbestos that was stuck on the underside of the concrete.
According to Mr Trovato, Mr Hoque told him he could not do the work because he was starting a new job on Monday. Mr Trovato asked him to tell his boss he was needed for one more day and he could start his new job on Tuesday, but Mr Hoque “flatly refused”. He never said anything about having had an injury or having a bad back until 26 March 2022. On that day, Mr Trovato received a call from a refugee advocate who told him about the injury. Two days later, he had a call from Mr Hoque to say he had a back injury; the jackhammer slipped while he was using it and he felt his back go a couple of days before he finished work. Mr Trovato states that he does not know who he then went to work for or what type of job he was doing; he does not know if Mr Hoque hurt his back on his job site.
In response to Mr Hoque’s statement about a previous back injury, Mr Trovato said he understood the injury occurred in Myanmar where Mr Hoque told him the military made him lift up big rocks and they would beat him while he was doing it. Then in Malaysia, he worked for a fishmonger and was lifting heavy baskets of fish.

Mr Trovato maintains that the only time he ever got angry with Mr Hoque was when he came to see him with the injury claim form on which he had indicated that he was employed at $45.00 an hour. Mr Trovato states that he told Mr Hoque that was not right, that it had been a one-off payment and he knew it; he had started at $25.00 an hour and his last increase had been to $32.50 an hour.
Mr Trovato disputes Mr Hoque’s description of their relationship and says he and his wife treated Mr Hoque as one of their family. He states that he feels sorry for Mr Hoque but he does not want to be “the scapegoat” if he has hurt himself at another employer’s site. He states that Mr Hoque has had several opportunities to injure himself at other potential worksites.

Medical evidence

Canterbury Hospital records

An emergency department discharge referral from Canterbury Hospital shows that Mr Hoque attended there on 24 February 2022.[7] He presented with “low back pain on background of pre-existing left L5 radiculopathy”. He was discharged with recommendations that he take painkilling medication, see a physiotherapist as soon as possible, and follow up with his doctor.
[7] ARD page 11.
The discharge referral describes the history of presenting illness as follows:
“-      37M presented to ED with back pain for past 6 days
-      injured at work last Friday – was carrying some heavy concrete when he accidentally misstepped and felt pain in back afterwards
-      Pain described as ‘grabbing’ in nature, localised to L buttock area radiating down the left calf
-      Could not see GP due to Medicare/insurance issues
-      Pain constant, disturbing sleep, began increasing for past few days.”

Dr Rahman’s records

Dr Rahman’s clinical notes dating from 25 February 2022 to 20 March 2023 are in evidence.[8] They show that Mr Hoque attended on 25 February 2022 for back pain, osteoarthritis of lumbar spine and neurogenic pain. Dr Rahman arranged a CT scan, noting “low back pain with left L5 radiculopathy” and “past history of lumber discectomy”.
[8] Respondent’s AALD lodged 23 March 2023.
The report of a CT scan[9] collected on 25 February 2022 shows clinical history: “Low back pain with left L5 radiculopathy. Past history [of] lumbar discectomy.” The report concludes:
“Left posterior paracentral disc bulge/protrusion with effacement of the lateral recesses bilaterally, worse on the left, with impingement of the descending left L5 nerve root. This is compatible with the patient’s left L5 radiculopathy.
There is also severe left neural exit foraminal narrowing at L4/5 with possible impingement of the exiting left L4 nerve root. Please correlate with features of radiculopathy in this nerve root distribution.”
[9] Reply page 90.
On 4 March 2022, Dr Rahman noted “presents with CT lumbosacral spine report” and “has L5 radiculopathy with disc bulge”. She recorded a diagnosis of neuropathic pain. On
14 March 2022, she recorded “feels much better with medications and physio”.
On 28 March 2022, Dr Rahman noted Mr Hoque had had “cortisone inj with some effect” and “seen by specialist”.
On 8 April 2022, Dr Rahman noted “his back pain is related with work injury – need workcover”. On 6 May 2022, she noted “discussed a start suitable duties” [sic] and the reason for visit as:
“Backpain
Workers Compensation certificate
osteoarthritis of lumbar spine.”
Notes for further consultations throughout 2022 are in similar terms. On 3 June 2022 Dr Rahman recorded the reason for visit as neuropathic pain and “need referral”. She noted “referral to specialist”.
On 21 June 2022, Dr Noorjahan Shelly at the same practice noted:
“last week Tuesday back strain and felt crack nosie [sic] on the back when bend down to [reach] mobile phone
since then back pain flare up
and radiating to the left side of the leg
From buttock thigh and leg.”
On 11 July 2022, Dr Rahman noted that Mr Hoque had had two cortisone injections “with little effect”; his “back pain [was] getting worse” and “happy to have another nerve block”.

Certificates of Capacity

Dr Rahman issued Certificates of Capacity which note that Mr Hoque was first seen at her practice for this injury on 24 February 2022. They record the date of injury as
11 February 2022. They describe how the injury occurred as “Was carrying some heavy concrete at work and low back afterwards [sic]”. They note pre-existing factors as “Has had a back operation in the pastx [sic]”.
The earliest Certificate of Capacity in evidence was issued on 8 April 2022 and certified Mr Hoque as having no current capacity from 11 February 2022 to 22 April 2022.[10]
[10] Reply page 92.
On 6 May 2022, Dr Rahman issued a Certificate of Capacity describing the date and circumstances of the injury in the terms noted above, and certifying Mr Hoque fit for work with restrictions from 24 April 2022 to 3 June 2022 for three hours per day for three days per week.[11]
[11] Reply page 95.
Dr Rahman’s records on 27 June 2022, 11 July 2022, 12 August 2022, 12 September 2022, 17 October 2022, 13 January 2023 and 24 February 2023 all refer to “workers compensation certificate”. For reasons which are not clear, other than those already referred to, the only certificates in evidence are dated 16 December 2022 (for the period 9 December 2022 to 13 January 2023) and 24 February 2023 (for the period 17 February 2023 to 17 March 2023) are in evidence. On both, Dr Rahman certified Mr Hoque as having capacity for employment with restrictions for three hours, three days a week.[12]
[12] Respondent’s AALD.

Dr Best’s reports

Dr Best saw Mr Hoque on 16 March 2022 and provided a report to Dr Rahman dated
[13] ARD page 12.
30 March 2022.[13]
Dr Best referred to Mr Hoque’s “left lower limb sciatica requiring lumbar surgery in 2015 (left L4/5 micro discectomy, Dr Ali Ghahrema, neurosurgeon).” He stated that Mr Hoque “recovered well” from the surgery.
Dr Best took a history that, in February 2022, Mr Hoque “redeveloped back and left lower limb pain following physical work”; he was “jackhammering concrete as the precipitant.” Dr Best noted that the CT scan on 25 February 2022 displayed “significant left L4/5 disc protrusion with left L5 (and possibly L4) nerve root compression”. He said he believed Mr Hoque’s “current symptoms and signs are directly related to his work injury from February.”
On 12 September 2022, Dr Best provided a report to Mr Hoque’s solicitors. He said Mr Hoque had been assessed at the clinic on 16 March 2022 and 25 May 2022 with a history of left lower back and lower limb pain which developed in February 2022 and “followed a period of physical work when he was jack-hammering concrete”. Mr Hoque gave a history of similar pain requiring neurosurgery in 2015 from which, Mr Hoque said, he had recovered well.
Dr Best referred to the “significant L4/5 disc protrusion with nerve root compression” seen on the CT scan and said a left corticosteroid injection had reduced Mr Hoque’s leg pain and improved his mobility but he still had clinical signs on 25 May 2022.
Dr Best said Mr Hoque’s injury had had “a significant effect” on his ability to work. He was unable to perform manual work and there were “limitations of lifting and prolonged sitting”, his prognosis was guarded and he would need a neurosurgical assessment and possible repeat injection or surgery. He would also require supervised rehabilitation.

Dr Woo’s report

Orthopaedic surgeon, Dr Alexander Woo, saw Mr Hoque for assessment on
[14] ARD page 15.
27 October 2022 and provided a report dated 30 October 2022.[14] Mr Hoque attended the consultation accompanied by a Rohingya interpreter.
Dr Woo took a history that Mr Woo was a refugee in Malaysia in 2007 when he injured his back at work. He was staying at the Villawood Detention Centre in 2015 when he had lower back pain and underwent a microdiscectomy performed by Dr Ghahrema. Mr Hoque said he had a full recovery six months after surgery and was released into the community and allowed to work.
Dr Woo took a history that Mr Hoque injured his back at work “on a Tuesday in
February 2022. It was 18 February as recorded in the discharge referral from Canterbury Hospital on 24 February 2022.” Dr Woo noted that Mr Hoque had seen Dr Best who had recommended he be reviewed by Dr Ghahrema. He had had two specialist reviews, the last one three months ago.
Dr Woo recorded that Mr Hoque complained of constant low back pain and left leg pain. He had pain on sitting and standing and said he was unable to return to work. Dr Woo noted that, “due to the language barrier” Mr Hoque was unable to give him a detailed description of his symptoms and restrictions. He noted the CT scan on 25 February 2022.
Dr Woo diagnosed “strain injury to his lumbar spine with aggravation of previous disc injury at L4/5 during the workplace incident on 18 February 2022”. As to causation, he stated the back injury was related to the “alleged workplace accident on 18 February 2022”. He recommended ongoing treatment in various forms. He considered that the injury had not reached maximum medical improvement. He noted there was a previous injury requiring surgery but no documentation of impairment prior to the current injury.

Dr Courtenay’s report

Dr Brett Courtenay saw Mr Hoque for assessment on 23 August 2022 at the request of the respondent. He provided a report dated 14 September 2022.[15]
[15] Reply page 98.
Dr Courtenay took a history that Mr Hoque injured his low back on 1 February 2022. The basis for this date is not clear. As noted above, Mr Hoque had provided a statement to the investigator saying the date of injury was 11 February 2022 “and not 1 February 2022”, and in his further statement approximately one week before he saw Dr Courtenay, he said he had thought it was 11 February 2022 but now assumed it occurred on 4 February 2022.
Dr Courtenay took a history that Mr Hoque was using a jackhammer to break up some concrete and putting it in some bins when he felt a sharp pain in his lower back. It had occurred “partly on a Friday” and Mr Hoque noted he been asked to work the following day. When he woke the next day, he could not get out of bed. He was aware of the idea of workers compensation and felt he “really could not continue doing anything and he also felt that he was not able to get back to the work”.
Dr Courtenay said the story “was a little bit vague” but Mr Hoque was told to take some time off work and he told his boss he had some other plans. Dr Courtenay said it was “a bit unclear whether it was some leave” and he could not get “an exact story”. Mr Hoque told him he did not have other plans; the reason he said he had plans was so he did not have to go to work. He did not tell his boss he had a problem with his back. He was never actually able to get back to work.
Dr Courtenay recorded that, as Mr Hoque “had a Medicare card, because of the pain he actually went to Canterbury Hospital”. This was about three or four weeks after the episode as he was still in pain. He told his employer about the accident after about a month, after his doctor said he needed to put in a claim for workers compensation.
Dr Courtenay took a history that Mr Hoque was in detention on Christmas Island in 2013 (which may be correct) and was taken to Nauru in 2018 (clearly not correct). Before this he had come to Australia when he was in Malaysia and working at a fish and vegetable market. He also noted that he had worked in fish and vegetable markets in Myanmar.
Dr Courtenay noted Mr Hoque’s current complaints, and the CT lumbar spine “dated
3 March 2022”. As there appears to have been only one CT scan, this appears to be reference to the scan on 25 February 2022.
Dr Courtenay considered there were “some very significant disparities” in Mr Hoque’s history. He was told that Mr Hoque originally injured his back in Malaysia while working at a fruit and vegetable market but, according to “the investigation”, he was beaten by the military in Myanmar. Dr Courtenay confirmed that Mr Hoque underwent surgery at St Georges Hospital from which he said he made a “full complete recovery” but he could not see any correspondence regarding that surgery. He stated there was “disparity between what he described, why he stopped the work”. He said Mr Hoque was “very evasive in discussing it” and he noted “a suggestion from the investigation that his problem was asking for more money”. He concluded that “there are certainly some real disconnects”.
Dr Courtenay said there was “no doubt that [Mr Hoque] does have some problems with his low back and also as a result of the jackhammering concrete”. He said that “would not have been a sensible job for him to have undertaken” and he was surprised that, after Mr Hoque had surgery, he was not told what sort of job he should be looking for.
Dr Courtenay diagnosed “flare of lumbosacral spine aggravated by an alleged work injury and causing severe onset of pain”. He said there was “some suggestion of some radiculopathy” but Mr Hoque had “significant exaggeration of his symptoms when he examined him”. In particular, he noted that Mr Hoque’s hand “demonstrated [significant] callosities, clearly indicating that he is still actually working”.
Dr Courtenay said the CT did suggest “some ongoing residual nerve root compression of the L4 level”. He noted this was “only a CT scan” and a more definitive result would be an MRI. He could not detect “any convincing nerve root radiculopathy”.
In response to a question whether the diagnosis was consistent with the reported mechanism of injury, Dr Courtenay said it was but he thought it had short-term effect and there were some “chronic issues going on” and “it should have resolved”. At most, he said, Mr Hoque had “a flare of his previous condition”.
With reference to the factors relevant to “substantial contributing factor”, Dr Courtenay said work “has been a contributing factor” but he would not call it substantial; the nature of Mr Hoque’s work was not appropriate to someone with his “previous back”; duration of employment was not a factor although he noted it was three and a half years and then Mr Hoque “seemed to stop very suddenly”. Dr Courtenay opined that he “most definitely” would have had a similar injury around the same time because he already had the problem from previous surgery in 2015.
As to any other contributing factors to Mr Hoque’s current presentation, Dr Courtenay said his major problem is suitable employment in Australia. He then said he was “surprised”, because Mr Hoque was “driving a Toyota Kluger, if he had been a detained refugee” and he also noted he was “obviously doing something given the callosities of his hands”.
Dr Courtenay said there was “definitely” evidence of pre-existing condition by way of surgery but the full details were not known and nor had there been any “upgraded investigations” other than a CT scan. He considered that Mr Hoque should be able to do suitable duties but he was certainly not going to be able to do heavy lifting although, he noted again, “he is obviously doing something, looking at the state of his hands”.

SUBMISSIONS

Parties’ submissions were recorded and the transcript is available. The following is a summary.

The applicant’s submissions

Mr Grimes makes the following submissions:
(a)     Mr Hoque‘s evidence is that it took him about six months to recover from the back surgery in 2015, after which he resumed his normal life. He worked as a labourer doing heavy work for four years from July around 2017; he had good functionality in his back and there is no evidence of any impairment.
(b)     Mr Hoque’s failure to report his injury to Mr Trovato is explained by their difficult relationship over matters such as his pay, evidenced by occasions when he felt bullied by Mr Trovato. He had had no formal induction or explanation of workplace policies and he was not aware that he had to report his injury, and he was concerned he would lose his job if he reported it to Mr Trovato.
(c)     There is no evidence that Mr Hoque had any employment after he left the respondent, and no evidence to support a finding that the injury occurred in any subsequent employment. Mr Grimes submits that it was open to the respondent to request his bank records or information concerning tax returns to verify this, but it did not.
(d)     Mr Hoque has explained the reason for the delay in seeking treatment for his injury, that he did not have a Medicare card and, when he did, he went to the emergency department at Canterbury Hospital and from there saw his general practitioner. He gave a consistent account to the various doctors of how the injury occurred.
(e)     It is obvious that Mr Hoque gave his doctors different dates of injury. However, he attended hospital with limited familiarity of the system and no interpreter. Following Mason v Demasi, caution must be exercised in relation to notes recorded by a busy hospital. The weight of the evidence shows that Mr Hoque just got the date wrong.
(f)     The CT scan found evidence of L5 radiculopathy. Mr Hoque had been doing heavy work for some four years. He could not have done it if he was suffering continuing effects of his pre-existing condition. Dr Best stated that he was “highly motivated to work” and his history confirms this. Dr Best concluded that his injury was directly the result of the work injury in February 2022. Dr Best took a consistent history from Mr Hoque. He noted the CT scan and diagnosed L4/5 protrusion and radiculopathy.
(g)     Mr Trovato’s evidence is that he did not work with Mr Hoque for the last week of his employment. He cannot directly refute Mr Hoque’s evidence about the date of injury and states he does not know if Mr Hoque hurt his back on his site.
Mr Trovato does not take issue with Mr Hoque’s description of his work other than the size of the concrete he shifted.
(h)     Dr Courtenay’s report in fact supports Mr Hoque, despite trying to cast aspersions on his behaviour. He noted the pathology in the CT scan and stated that Mr Hoque “no doubt” had problems with his lower back from jackhammering which he thought was not a “sensible” job for him to do, and he was “surprised” he was not advised to that effect. Mr Grimes submits this is not surprising given that Mr Hoque came to Australia as a refugee, has limited English, and took on the work he was given.
(i)     I would disregard Dr Courtenay’s reference to callosities on Mr Hoque’s hands as evidence that he was actually still working; there is no evidence he was actually working.
(j)     Dr Woo refers to Mr Hoque’s current symptoms of constant lower back and left leg pain. His examination supported Mr Hoque’s complaints and was consistent with Dr Courtenay’s findings. He found evidence of radiculopathy corresponding to the CT scan. He refers to the date of injury as 18 February 2022 but this is obviously incorrect.
(k)     Dr Woo considered that Mr Hoque had no current capacity for employment. Although Dr Rahman certified him as having capacity for three hours, three days a week from April 2022 with suitable duties, I would find he has no residual earning capacity given his significant restrictions, his limited language and skills.
(l)     Dr Rahman’s notes record ongoing symptoms from his workplace injury up to
3 June 2022. She noted in March 2022 that Mr Hoque felt better with medication but he still needed injections, and she referred to the need for injection on
3 June 2022. He was far from recovered when he bent over on 26 June 2022 and had a “flare up”; this incident did not break the chain of causation.
(m)    I would put aside any doubts and find that Mr Hoque had a significant injury on
4 February 2022, that he has ongoing pathology, and no current capacity for work as a result, including his lack of English and lack of transferable skills.

The respondent’s submissions

Mr Barter makes the following submissions:
(a)     Mr Hoque bears the onus of proof. He has pleaded a personal or frank injury on
4 February 2022 as a result of carrying heavy concrete. The contemporary evidence does not support him.
(b)     There is a significant lapse in time between the claimed injury and when
Mr Hoque sought treatment and reported his injury.
(c)     Mr Hoque claims that he checked his diary when completing the injury claim form in April 2022. He had to adopt 4 February 2022 as the date of injury once he learned that was his last day of employment.
(d)     We do not know if Mr Hoque found alternative work but that is what he told
Mr Trovato. Moreover, he did not tell Mr Trovato that he had hurt his back.
(e)     The most contemporaneous record of the date of the injury is in the Canterbury Hospital emergency department records which show it was six days before
24 February 2022. A reasonable inference is that he had a better idea at that time when the injury occurred than what he said later.
(f)     Mr Hoque’s descriptions of the injury may be broadly consistent but, even when he saw the hospital on 24 February 2022, the date he gave was two weeks after the date he now asserts.
(g)     Dr Rahman issued a certificate on 25 February 2022 which gave a date of injury 11 February 2022. Mr Hoque gave the same date on the injury claim form. Although Dr Woo stated the injury occurred on 18 February 2022, it appears he took that from the hospital notes.
(h)     If the injury did occur on 4 February 2022, Mr Hoque has not explained why it took him nearly three weeks to go to hospital. He says he did not get a Medicare card until that date but he does not say that is why he did not seek treatment before he did. He has tried to line up his claim with the last date of employment.
(i)     The state of Mr Hoque’s back before he started work for the respondent is very unclear. All that is known is that he had had a discectomy. What we do know is his current symptoms are the same as what he had in 2015.
(j)     If I were to find that Mr Hoque had a frank injury on 4 February 2022,
Dr Courtenay considered that, at most, he had a transient exacerbation of his 2015 injury.
(k)     Dr Rahman recorded on 14 March 2022 that Mr Hoque felt much better. On
21 June 2022, the notes recorded that he felt pain and heard a “crack” when he bent over. The evidence is that he had a significant flareup of his symptoms.
(l)     The most telling case against Mr Hoque is the delay in reporting his injury to his employer, the delay in seeking treatment and making a claim, and the varying dates he has provided. Mr Barter submits that the hospital record shows that it occurred on or around 18 February 2022 and that is the most likely accurate date.
(m)    The respondent relies on the certificates of capacity which show that Mr Hoque had some capacity for employment. To the extent that he had any incapacity it is as a result of the 2015 condition, not an injury at work in February 2022.

Submissions in reply

In reply, Mr Grimes submits:
(a) It is not correct to say that nothing is known of the state of Mr Hoque’s back after the 2015 surgery. We know he had six months of rehabilitation after which he resumed his normal life. The submission that his ongoing symptoms and incapacity is due to the 2015 condition is not supported by the evidence.
(b) The fact that he had not seen Dr Rahman before February 2022 is consistent with his claim that he had no need to see a doctor before then, that he had recovered after 2015.

CONSIDERATION

Section 4 of the Workers Compensation Act 1987 (the 1987 Act) provides:
“injury --
(a) means personal injury arising out of or in the course of employment,
(b) includes a "disease injury", which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
…”
By s 9A(1), no compensation is payable in respect of an injury, other than a disease injury, unless the employment concerned was a substantial contributing factor to the injury. Section 9A(2) sets out a non-exhaustive list of the kinds of matters that can be taken into account for the purposes of making such determination.
Mr Hoque claims he suffered a personal, or “frank”, injury in the course of his employment with the respondent on 4 February 2022.
Mr Hoque bears the onus of proof, meaning I must feel an actual persuasion of the matters necessary to establish his claim: Department of Education and Training v Ireland[16] and Nguyen v Cosmopolitan Homes.[17]
[16] Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[17] Nguyen v Cosmopolitan Ho [2008] NSWCA 246.

Previous injury

The evidence is unsatisfactory in a number of respects. As a starting point, there is very little information available about the circumstances leading up to the discectomy that Mr Hoque underwent around 2015, or about the procedure itself.
Dr Best reported to Dr Rahman that Mr Hoque suffered left lower limb sciatica requiring a left L4/5 micro discectomy under Dr Ali Ghahrema. The source of this information is not clear but Dr Woo and Dr Courtenay took a broadly similar history, although Dr Courtenay understood it was Dr Gursel who performed the procedure.
The history leading up to the surgery in 2015 is unclear. In his statement to the investigator, Mr Hoque said he suffered a back injury in Burma (Myanmar) when he was beaten by the military; he then went to Malaysia and worked there for four to five years. If this is correct, he left Myanmar around 2008, because he left Malaysia in 2013.
In his statement dated 14 August 2022, Mr Hoque stated that he injured his lower back in about 2012 while working in Malaysia.
Dr Woo took a history that, in 2007, Mr Hoque was a refugee in Malaysia when he injured his back at work. Dr Courtenay took a history that, before he came to Australia, he was in Malaysia where he worked in a fish and vegetable market. Dr Courtenay also recorded that Mr Hoque had “that issue” with his low back when working in fish and vegetable markets in Myanmar.
Mr Trovato states that Mr Hoque used to tell him that, when he was in Myanmar, he was required to “lift heavy boulders, dig a grave and he was threatened to be shot”. In Malaysia he worked as a fishmonger and was lifting big buckets of fish.
Dr Courtenay evidently doubted Mr Hoque’s account and considered there were “some very significant disparities”[18] in his history. Dr Courtenay said he was advised that Mr Hoque originally injured his back in Malaysia, working in a fruit and vegetable market but, according to the investigation, he was beaten by the military in Myanmar.
[18] Reply page 101.
I am not persuaded those statements are necessarily incompatible, especially given that English is not Mr Hoque’s first language. Although there appear to be a number of inconsistencies in his accounts, there is sufficient commonality and overlap that I do not think they seriously undermine the history he has given. It is quite possible that some details were lost in translation. For example, the investigator recorded that Mr Hoque said he had “no significant medical history” and, in the same statement, that he underwent back surgery in 2015. To the extent that there are inconsistencies, I am not persuaded they necessarily reflect adversely on Mr Hoque. For example, Dr Courtenay recorded that he was initially held on Christmas Island in 2013 and was moved to Nauru in 2018. This last date is clearly incorrect and does not appear anywhere in Mr Hoque’s evidence of histories taken by other doctors.
There is no dispute that Mr Hoque left Myanmar and spent several years in Malaysia. There is no reason to doubt that he was mistreated in Myanmar or that he worked in a market in Malaysia. There is no dispute that he came to Australia as a refugee, and there is no dispute that he was transferred from Nauru to Australia in 2015 for treatment for his back. His symptoms were evidently sufficient to warrant his transfer from Nauru to Australia and for him to undergo surgery. He clearly had a pre-existing condition, although its precise nature is not known from the available material.
Mr Hoque told the investigator that he recovered fully from the back operation in 2015 and he had been going to the gym, playing soccer and working. He stated that he did not have any “issues” with his lower back until the day he was using the jackhammer.[19] In his statement dated 14 August 2022, he stated that it took “about six months to rehabilitate following the operation” after which he was able to resume his normal life.
[19] Statement to the investigator, Reply page 20.
Dr Courtenay appears to doubt Mr Hoque’s claim that he made a “full complete recovery” from the surgery in 2015 because, having noted that claim, Dr Courtenay said “however, I cannot see any correspondence regarding that original surgery”.[20] It is not clear from
[20] Reply page 101.
Dr Courtenay’s comment why he apparently doubted Mr Hoque’s statement.
Mr Grimes submits that the evidence of Mr Hoque’s recovery is his employment as a labourer for over four years from 2017.
There is no challenge to Mr Hoque’s evidence that he was released from Villawood Detention Centre on a bridging visa in 2017 and went to South Australia where he worked as a labourer for approximately a year before resigning to start employment with the respondent in mid-2018. His statement to the investigator that he started work for the respondent in early May 2019 is clearly incorrect. Mr Trovato confirms that he commenced his employment in May or June 2018.[21]
[21] Reply page 26.
Mr Hoque worked as a labourer for the respondent until approximately October 2021 when he left to work for another employer after a disagreement with Mr Trovato over his pay. He returned to work for the respondent in December 2021 and, apart from a period over the Christmas and New Year break, he continued working through to 4 February 2022.
Considering that Mr Hoque was able to work for approximately four years in labouring work, including demolition work, I find it more probable than not that his earlier injury had resolved. There is no evidence of complaints to a doctor about back pain during that time or evidence that he had to take time off work due to back pain. I accept Mr Hoque’s evidence that he recovered from the surgery in 2015 and resumed “normal life”.

Did Mr Hoque sustain injury to his lower back in the course of his employment with the respondent on 4 February 2022?

Mr Hoque has given broadly consistent descriptions of how he says the injury occurred. He told the investigator that he was working alone on the day of the injury, using a jackhammer that weighed approximately 50kg. He was jackhammering concrete, collecting it by hand and placing it in a bucket and carrying it to a skip bin. He did this from 7.00am to 3.30pm. Just before lunch, he noticed pain in his lower back. When he returned from his lunch break, he found it difficult to stand up and felt sharp pain in his lower back. He did stretches and continued jackhammering until finish time.
In his statement dated 14 August 2022, Mr Hoque said he had been asked to break down the concrete slab with the jackhammer and place the rubbish into a skip. He was lifting a bucket filled with concrete rubble when he suddenly felt a sharp pain in his back.
In the Certificates of Capacity, Dr Rahman describes how the injury occurred as “was carrying some heavy concrete at work and low back afterwards”.
On the injury claim form, Mr Hoque stated that he was jackhammering concrete slabs and had to pick up the broken concrete and deposit it in the bin; when he was picking it up, he felt sudden pain in his lower back. He indicated the injury occurred at 2.20pm and he stopped work at 3.30pm.
Canterbury Hospital records show that Mr Hoque was “carrying some heavy concrete when he accidentally missteped [sic] and felt pain in back afterwards”. Mr Barter did not press his initial submission that what appeared as “felt” was actually “fell”.
Dr Best described jackhammering concrete as “the precipitant” when Mr Hoque “redeveloped back and lower limb pain” in February 2022. Dr Woo recorded a similar history. Dr Courtenay took a history that he was using a jackhammer to break up some concrete and was putting it into bins when he felt a sharp pain in his low back.
Mr Trovato does not dispute that Mr Hoque was required to do the work he described or that he was working at the Dulwich Hill address on 4 February 2022. Mr Trovato told the investigator he did not know if Mr Hoque injured his back at that site. He told the investigator that the concrete was 3x1.5m, and not 6x3m as Mr Hoque stated, but I do not think anything turns on this.
Despite some variations, I find that Mr Hoque has given broadly consistent descriptions of how he says the injury occurred.
Mr Barter submits that the most telling case against Mr Hoque is the delay in reporting his injury to his employer, the delay in seeking treatment and making a claim, and the varying dates he has provided. I accept that these raise doubts about the credibility of his claims. However, for the reasons that follow, I find, on the balance of probabilities, that Mr Hoque sustained injury to his lower back in the course of his employment with the respondent on
4 February 2022.
Mr Hoque has consistently identified the place where the injury occurred as the address in Dulwich Hill. On the injury claim form which he completed on 26 March 2022, he indicated that was the address where he injured his back. In the statement taken by the investigator on 26 April 2022, he identified the same address in Dulwich Hill as the site of his injury.
The first record of Mr Hoque reporting his injury appears in the Canterbury Hospital record on 24 February 2022 which indicates that it occurred on a Friday six days earlier. The copy in evidence is not entirely clear and possibly reads “for past 5 days”. However,
18 February 2022 was a Friday, and he did not work on the day after the injury, which indicates that “past 6 days” is probably correct.
Mr Grimes refers to the decision in Mason v Demasi[22] in which the Court said that inconsistencies between a party’s evidence and medical histories in clinical notes have to be treated with caution.
[22] Mason v Demasi [2009] NSWCA 227 (Demasi).
In Demasi, Basten J said the inconsistencies between a worker’s oral testimony and accounts given to various health professionals should be treated with caution for reasons including the circumstances of the consultation, the manner in which the history was recorded and the time devoted to the exercise, that it may have been taken for a purpose other than legal proceedings, that it may not identify the questions which elucidative the replies, that it is likely to be a summary rather than have a verbatim recording, and other factors including fluency in English will affect the content of the history.
The Certificates of Capacity show that Mr Hoque was first seen at Dr Rahman’s practice for his injury on 24 February 2022. This may be an error because the first record in her notes appears to be on 25 February 2022 when Dr Rahman recorded that Mr Hoque “was in ED recently with back pain”. She noted, under “Reason for visit”: back pain, osteoarthritis of lumbar spine and neurogenic pain. She did not record anything about an injury at work but Mr Hoque evidently saw her with the same complaint as the previous day at hospital. It is possible that Mr Hoque did not tell Dr Rahman about an injury at work but, having been to hospital the previous day with that complaint, it seems probable that he did tell her, and that she did not record that in her notes.
On 28 March 2022, Dr Rahman referred Mr Hoque to Dr Best for “low back radiating to left leg”. She did not indicate a work injury. Dr Best reported to her on 30 March 2022, referring to the “re-development of back pain” following jackhammering at work.
It is not clear why the first Certificate of Capacity in evidence was not issued by Dr Rahman until 8 April 2022, although I note that it is not ticked to indicate that it was the initial certificate for this claim. In any event, that certificate and subsequent certificates indicate that he was first seen for this injury on 24 February 2022 and the date of injury was
11 February 2022.
To my mind, the apparent inconsistencies in Dr Rahman’s records and certificates underline the difficulties in relying on clinical records.
On the injury claim form completed on 26 March 2022, Mr Hoque gave the date of injury as 11 February 2022. (He also indicated that he started working for the respondent on
6 May 2019 which was incorrect.) Dr Woo noted the date as 18 February 2022 although, as Mr Barter observed in submissions, he may have made that calculation based on the hospital records.
On 26 April 2022, Mr Hoque told the investigator the date of injury was 11 February 2022 “and not 1 February 2022”. It is not clear where the date 1 February 2022 came from or what he was purporting to correct.
Although there is no evidence about this, any calendar shows that 11 February 2022 was a Friday, one week after the Friday date when Mr Hoque now says he was injured.
Mr Barter submits that Mr Hoque has altered the date of injury to fit with his last date of employment with the respondent. Mr Grimes submits that the weight of the evidence shows that he simply got the date wrong.
Considering the broadly consistent accounts of his injury, that he has consistently identified the Dulwich Hill address as the site of injury, that there is no dispute he was doing the work he claims at that address on 4 February 2022, I find it more probable than not that Mr Hoque got the date wrong.
Mr Barter submits that Mr Hoque has failed to explain the delay of approximately three weeks in seeking treatment. Mr Grimes submits that he has explained that he did not have a Medicare card and could not see a doctor before he went to Canterbury Hospital on
24 February 2022.
Mr Hoque refers in both statements to his Medicare card. He states he did not have a card at the time of his injury. It is true that he does not specifically state that was the reason he did not seek treatment earlier. However, the Canterbury Hospital record shows that he “could not see GP due to Medicare/insurance issues”. I think a fair reading of his statements of evidence together with the hospital record support a finding that it was the reason he did not seek treatment sooner.
There is no dispute that Mr Hoque did not tell Mr Trovato that he had injured his back until around 26 March 2022. There is conflicting evidence about their relationship. Mr Hoque claims Mr Trovato would yell and swear at him and he felt bullied. Mr Trovato says he and his wife treated Mr Hoque like family. The truth probably lies somewhere in the middle. They evidently had some disagreement around October 2021 over Mr Hoque’s pay because he left and went to work for another employer.
It is also difficult to know what to make of the conflicting evidence about the conversation they had on or around 4 February 2022. Mr Trovato claims he had given Mr Hoque notice on 20 January 2022 and 4 February 2022 was to be his last day. Mr Hoque has not disputed this. It is common ground that they had a conversation on or around 4 February 2022 about removing asbestos from the bin. Mr Trovato claims Mr Hoque said he could not do it because he was due to start another job on the following Monday and he refused to ask his new boss if he could start a day later. Mr Hoque denies this. He claims he did not tell Mr Trovato about his injury because he did not want to lose his employment. His explanation is somewhat difficult to accept because it is common ground they had no further contact until around 26 March 2022.
Mr Hoque also denies that he had subsequent employment. There is no evidence that he had employment after 4 February 2022. It was open to the respondent, as Mr Grimes submits, to seek to obtain his bank statements or tax records. As it is, Dr Rahman certified him unfit for any work from 11 February 2022 to 22 April 2022, and for only nine hours per week thereafter. On 14 September 2022, Dr Courtenay thought he should be able to do suitable duties. On 30 October 2022, Dr Woo considered that he had no current work capacity.
Dr Courtenay observed that Mr Hoque had callosities on his hands and said he was “obviously doing something, looking at the state of his hands”. I place no weight on that comment. There is nothing to suggest that Dr Courtenay was familiar with the state of
Mr Hoque’s hands previously and he offered nothing to back up his opinion. Moreover, it does not appear, from his report, that he asked Mr Hoque for an explanation about his hands. It was not unlike his observation that he was “surprised” that Mr Hoque was driving a Toyota Kluger if he had been a detained refugee.
In the absence of any evidence to the contrary, I accept that Mr Hoque did not have employment after 4 February 2022. If he did tell Mr Trovato that he had work on the following Monday, I am not persuaded that this undermines his claim of injury.
Dr Best reported to Dr Rahman that the CT scan she arranged on 25 February 2022 displayed “significant left L4/5 disc protrusion with left L5 (and possibly L4) nerve root compression”.
Despite his doubts and some unjustified comments such as his reference to Mr Hoque’s car, Dr Courtenay said the CT scan suggested some ongoing residual nerve root compression of the L4 level, and said his diagnosis was consistent with the history. He had “no doubt” that Mr Hoque had some problems in his low back “and also as a result of that jackhammering concrete”. He was “surprised” that Mr Hoque was not told, after his surgery, “what sort of work he should be looking for”. Despite Dr Courtenay’s surprise, the evidence shows that
Mr Hoque was employed in that sort of work for some four years before his injury. To my mind that reinforces my view that his earlier injury had resolved and he suffered a further injury on 4 February 2022.
Dr Courtenay opined that Mr Hoque “most definitely” would have had this or a similar injury around the same time, even if not employed by the respondent because he “already had that problem from previous surgery in 2015”. The basis for this statement is not clear, and neither Dr Best nor Dr Woo appear to share his opinion. Without more, I do not accept
Dr Courtenay’s opinion.
Mr Barter submits that, even if Mr Hoque did injure his back as he claims, Dr Rahman’s notes show that he had recovered by around March 2022. Mr Barter refers to Dr Rahman’s note on 14 March 2022 that Mr Hoque “feels much better with medications and physio”, and her note on 28 March 2022, that he had had “cortisone inj with some effect”. Mr Barter refers to Dr Shelly’s record on 21 June 2022 that Mr Hoque had bent down to pick up his mobile phone and felt “back strain” and “crack [noise]” when he bent down to pick up his mobile phone and he had “back pain flare up” since. Mr Barter submits this incident broke the chain of causation and any subsequent incapacity was due to this incident.

Mr Grimes submits that Dr Rahman’s notes record ongoing symptoms from Mr Hoque’s workplace injury up to 3 June 2022. She noted in March 2022 that he felt better with medication but he still needed injections, and she referred to the need for injection on
3 June 2022. Mr Grimes submits that he was far from recovered when he bent over on
26 June 2022 and had a “flare up”; this incident did not break the chain of causation.
Dr Rahman’s note of 3 June 2022 shows that the results of a CT guided nerve injection were given to Mr Hoque, not that he still needed injections. However, she recorded the reason for visit as neuropathic pain and that he needed referral to a specialist. I am not persuaded on the basis of Dr Rahman’s records alone that Mr Hoque had recovered from his injury by
21 June 2022 and that the incident with the mobile phone broke the chain of causation.
While there is certainly room for doubt as to Mr Hoque’s claim, I find, considering the evidence as a whole, that more probably than not he injured his back as he claims on
4 February 2022 and that any ongoing incapacity is as a result of that injury. I am not persuaded that it is as a result of the 2015 injury or whatever occurred on 21 June 2022.

Did Mr Hoque have any incapacity as a result of his injury?

On 8 April 2022, Dr Rahman certified Mr Hoque as having no current capacity for work from 11 February 2022 to 22 April 2022 as a result of injury on 11 February 2022. On 6 May 2022 she certified Mr Hoque fit for suitable duties with lifting restrictions from 22 April 2022 to
3 June 2022 for three hours a day, three days per week.
Dr Rahman’s records on 27 June 2022, 11 July 2022, 12 August 2022, 12 September 2022, 17 October 2022, 13 January 2023 and 24 February 2023 all refer to “workers compensation certificate”. Other than those referred to above, the only certificates in evidence are dated
16 December 2022 for the period 9 December 2022 to 13 January 2023; and
24 February 2023 for the period 17 February 2023 to 17 March 2023. They indicate the date of injury as 11 February 2022 and certify Mr Hoque fit for suitable duties with lifting restrictions for three hours a day, three days per week.
It is a reasonable inference that Dr Rahman continued to certify Mr Hoque for suitable duties for nine hours a week throughout 2022 and up to 17 March 2023.
On 12 September 2022, Dr Best reported that Mr Hoque’s injury had had “a significant effect” on his ability to work and he was unable to perform manual work; there were limitations on lifting and prolonged sitting. He did not say Mr Hoque had no current capacity. On
14 September 2022, Dr Courtenay considered that Mr Hoque “should be able to do suitable duties”. He did not specify for how many hours a week. On 30 October 2022, Dr Woo considered that Mr Hoque had no capacity for employment.
In my view, Dr Rahman’s assessment of Mr Hoque’s capacity is the most reliable. She saw him regularly throughout 2022 and continues to see him. In contrast, Dr Woo saw him once. I prefer Dr Rahman’s assessment which is supported, albeit not in clear terms, by Dr Best and
Dr Courtenay.
Mr Grimes submits that I would find that Mr Hoque has no current capacity for work as a result of his injury, including because of his lack of English and lack of transferable skills. I am not persuaded that is so. I accept that Mr Hoque may have some limitations speaking English but there is no evidence that his communications in English with Mr Trovato were particularly limited. I accept that he is not able to do heavy labouring work but the only restriction in the certificates is on lifting. His evidence is that he has worked in markets in the past. I am not persuaded that he is so lacking in transferable skills that he has no current capacity for employment.
I find that, from 4 February 2022 to 22 April 2022, Mr Hoque had no current capacity for employment. I find that, from that date onwards and continuing, he has had capacity for suitable employment for three hours a day on three days a week. He is entitled to weekly payments pursuant to ss 36 and 37 of the 1987 Act accordingly at his agreed PIAWE of $1526.40.

[2023] NSWPIC 159

13 April 2023