Hussein v Fencing & Gate Centre Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Hussein v Fencing & Gate Centre Pty Limited [2022] NSWPIC 6
APPLICANT:	Mohammad Hussein
RESPONDENT:	Fencing & Gate Centre Pty Limited
Member:	Kerry Haddock
DATE OF DECISION:	10 January 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits from 30 January 2020 in respect of accepted back injury; liability for weekly benefits and medical expenses disputed on basis applicant has recovered from effects of injury; dispute regarding pre-injury average weekly earnings in respect of injury received before 21 October 2019; claim of concurrent employment and for overtime and allowances; applicant is pain focused and fear avoidant but has objective evidence of disc injury; pain management has not been provided; Held - applicant has since 30 January 2020 had no capacity for work, due to both physical and psychosocial effects of injury; consideration of former sections 44C, 44H and Schedule 3 of Workers Compensation Act 1987; pre-injury average weekly earnings do not include earnings in concurrent employment, overtime or allowances; award for the applicant of weekly benefits from 30 January 2020 and section 60 expenses.
determinations made:	1. That there is award for the applicant pursuant to section 37 of the Workers Compensation Act 1987 at the rate of $729.60 per week from 30 January 2020 to date and continuing. 2. That there is an award for the applicant pursuant to section 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mohammad Hussein (Mr Hussein) was employed by the respondent, Fencing & Gate Centre Pty Limited (Fencing & Gate) as a powder coater/spray painter.
Mr Hussein sustained an injury to his lumbar spine on 30 September 2019, when he lifted a powder box to pour powder into a tank.
Liability for the injury was accepted by the respondent’s workers compensation insurer, Insurance & Care NSW (iCare) (managed by Employers Mutual NSW Ltd (EML)) and payments of compensation were made to and on behalf of the applicant.
On 25 November 2019, iCare issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It disputed liability for sclerotic lesions in the lower thoracic and lumbar vertebral bodies, and therefore disputed liability for weekly benefits or medical treatment as a result of that condition. It did not otherwise dispute that Mr Hussein had sustained injury on 30 September 2019.
On 20 December 2019, iCare issued Mr Hussein with a further notice pursuant to section 78 of the 1998 Act. It disputed liability for Schmorl’s node at T6, and therefore disputed liability for weekly benefits or medical treatment as a result of that condition. Once again, it did not dispute that the applicant had sustained injury on 30 September 2019.
On 6 January 2020, iCare issued Mr Hussein with a further notice pursuant to section 78 of the 1998 Act. It disputed liability for ongoing weekly payments of compensation, as he did not have total or partial incapacity for work resulting from injury on 30 September 2019. It also disputed that medical or related treatment was reasonably necessary as a result of the injury. ICare maintained that the applicant had recovered from the injury. His weekly benefits were to cease from 30 January 2020.
The applicant lodged an Application to Resolve a Dispute (the Application) on 2 August 2021. He claimed that on 30 September 2019, in the course of his employment, he was required to lift a powder box weighing approximately 20kg, to pour the powder from the box into a tank for an automatic spray gun machine. Whilst completing this manoeuvre, he sustained an injury to his lumbar spine. He now suffers from chronic pain. In the alternative, he claimed to have sustained an aggravation of an underlying lumbar spine condition, deemed to have occurred on 30 September 2019, whilst completing repetitive lifting duties.
The applicant claimed weekly benefits at the rate of $1,039.90 per week from 30 January 2020 ongoing, pursuant to section 37 of the Workers Compensation Act 1987 (the 1987 Act). He claimed that his pre-injury average weekly earnings (PIAWE) were $1,299.82 per week. He also claimed the sum of $800.07, pursuant to section 60 of the 1987 Act, for past treatment, care or related expenses.
The respondent lodged its Reply on 24 August 2021.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) the applicant’s incapacity for work, if any, on and from 30 January 2020, and
(b) whether the applicant was in concurrent employment, and the calculation of his PIAWE in those circumstances.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing by telephone on 26 October 2021. Mr Young of counsel, instructed by Ms Tuco, appeared for the applicant, who was present. Ms Goodman of counsel appeared for the respondent, instructed by Ms Singer.
Ms Shameem of EML was also present.
The applicant’s counsel advised that, if the applicant were successful in his claim, he sought a general order for the payment of medical expenses, pursuant to section 60 of the 1987 Act. The respondent took no objection to such an order if the applicant succeeded in his claim.

Due to the time taken in the conciliation phase, it was not possible to complete the hearing of the matter in the time remaining. Mr Young made oral submissions on behalf of the applicant. Directions were made for written submissions by the applicant on the issue of his PIAWE and by the respondent on all issues. The applicant was permitted to lodge submissions in reply. Submissions were lodged in accordance with the directions. The parties were advised that the dispute would then be determined ‘on the papers’.

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)    the Application and attachments;
(b)    Reply and attachments;
(c)    Application to Admit Late Documents dated 25 August 2021 and attachments, filed by the respondent, and
(d)    Application to Admit Late Documents dated 20 October 2021 and attachments, filed by the respondent.

Oral evidence

There was no application by either party to cross-examine any witness or call oral evidence.

FINDINGS AND REASONS

Evidence of the applicant, Mohammad Hussein

Mr Hussein’s first statement is dated 19 May 2020.
The applicant was born in Thailand and came to Australia in 2012.
The applicant sustained injuries to his head, neck, back and right shoulder at work in or about 2016. He underwent surgery to his right shoulder and considered that he had fully recovered one year later. He was pain free and able to engage in employment without restrictions.
Mr Hussein commenced work as a powder coater/spray painter with the respondent on or about 12 September 2019. He was working 38 hours per week. His job entailed spray painting; preparing invoices; maintaining equipment; following health and safety processes; and general duties incidental to spray painting and powder coating.
On 30 September 2019, the applicant was lifting a 20kg powder box to pour the contents into another container. He had done this many times, but on this day they were understaffed, and he was under pressure to work quickly.
The applicant knelt to pick up the box and felt a sharp pain in his back. He stopped working and reported the incident to his supervisor, “Charlie”, and his boss, “Chris”. He was encouraged to take an early lunch break in the hope he would recover. After lunch, he was still in significant pain from his lower back. He filled out an injury form and went home to rest.
Mr Hussein has then given evidence about his medical treatment, which is discussed below. His treatment included physiotherapy, which provided only temporary pain relief, lasting only a few hours. He also had an epidural injection on 14 January 2020. This was hugely beneficial and reduced his pain from about 9/10 to 1/10. However, the pain began to return after two or three days. He continued to consult his GP, Dr Marcus, but was unable to afford specialist treatment. He performed a home exercise program he had been taught by his physiotherapist.
The statement included a long list of “disabilities”, including constant lower back pain; aggravation of lower back pain on bending, sitting for extended periods, driving or sitting in a vehicle, when waking and in cold weather; pain radiating to the lower extremities; pins and needles sensation in both legs; inability to lift heavy objects; headaches; reliance on medication; stress; frustration; depression; mood swings; anger bouts; loss of concentration; broken sleep; lethargy; reclusive habits; loss of self-esteem and confidence; stress of relationship with spouse (Mr Hussein also stated he was single); inability to return to pre-accident employment; loss of income and career opportunities; loss of independence; and reliance on family for home support.

The applicant made a claim for weekly payments from 6 January 2020 at the rate of $912 PIAWE. He had been completely unfit since 6 January 2020 and remained so. Before his injury, he loved his job and his team. He had a very strong work ethic and valued the opportunity to progress. He would love to return to work but knew he must listen to his doctor’s orders. He did not want to risk his health and further damage his lower back, right shoulder or neck by over-exerting himself.
The applicant’s job was very physical. He was on his feet most of the day and was required to repeatedly lift, bend and squat. He was unable to do that in his current condition. He didn’t think he could even travel to work without being in pain. He hoped he would soon be cleared to return to work but wouldn’t risk his long-term health. His employment was terminated effective on 13 January 2020.
Mr Hussein had not completed any formal schooling in Australia and had no recognised qualifications. He did not believe vocational retraining was a viable option. He disagreed that he was fit to resume his pre-injury work.
The applicant made a second statement dated 15 March 2021, to “aim to clarify and expand upon assertions made” in his previous statement. To the extent that there were inconsistencies between the statements, the veracity of claims made in this statement was preferred. He again stated that he was single.
The applicant did not recall mentioning to his GP on 12 July 2016 “on and off back pain”. He had told his GP in November 2016 of lower back pain as a result of lifting a heavy box of chocolates while on suitable duties. Between November 2016 and May 2017, his pain slightly worsened and he realised the injury should have been claimed.
On 2 May 2017, the applicant reported to his GP that while working with Cogent Resources on light duties, he had lower back pain that he should have claimed. His duties were repetitive, and he noticed pain in his back. On 17 May 2017, the insurer declined his claim for his back injury, but it was no longer a concern and his symptoms had reduced. He did not seek further treatment or legal advice. He believed he made a complete recovery from that injury. He did not experience any pain in his lower back immediately before commencing work with the respondent.
The applicant’s GP, Dr Yu, had suggested he return to work on light duties. He felt that opinion was incorrect, as he was in severe pain. Dr Yu also referred him to consult with neurosurgeon Dr Raoul Pope.

Due to his concerns, the applicant contacted the Workers Compensation Independent Review Office (WIRO) on 18 October 2019. WIRO advised him to return to his GP and request a certificate stating he was unfit for pre-injury duties. He was also advised not to return to work. He had not returned to work or engaged in any employment since the insurer disputed his claim, and he continued to experience high pain levels.

The applicant’s final statement is dated 29 July 2021.
At the time of his injury, the applicant was also employed by Texas Aardvark (Texas Aardvark International Screenprinting) as a machine assistant. He had commenced that employment in or about February 2014. He was employed on a casual basis. He could work up to seven days per week or only two days per week. During his employment with the respondent, he was often called upon to work night shifts from 7pm to 11:30pm. He would also work Saturdays and Sundays, depending on the work available. He was well respected for his efficient hard work and dedication to the company. He was the most senior member in the warehouse and enjoyed his job thoroughly.
The applicant’s work for Texas Aardvark required him to perform repetitive tasks. He was also constantly bending and crouching, reaching above head height and carrying boxes of stock. He would push and pull heavy trolleys, which required him to brace his core “and to really put my back into it”. He would be constantly walking and standing for up to 12 hours. He also trained new employees, conducted quality checks, and folded and packaged T-shirts. The nature of the job was physically strenuous and demanding. There was no way he could perform these duties with his current pain levels and restrictions in his lower back.
The applicant claimed weekly benefits from 30 September 2018 to 30 September 2019 at the rate of $387.82 PIAWE. For the periods from 10 December 2018 to 14 April 2019, and from 6 May 2019 to 11 August 2019, Texas Aardvark did not have any jobs for him, and he had no payslips.
Before his injury, the applicant loved both his jobs and colleagues. He worked at every opportunity. He was eager to progress his career and enjoyed the social aspect of meeting and training new people. He missed working and would love to return to work. He had been advised by Texas Aardvark that there may be a job waiting for him when his lower back healed. As much as he would love to take this opportunity, his treating specialists, and particularly his GP, Dr Ma (Dr Yu), strongly advised against it.
If the applicant were to return to work, he would be required to be on his feet most of the day, and perform movements consisting of repetitive lifting, bending and squatting. He was unable to perform these movements while completing domestic duties, let alone under time pressures at work. The burning and stabbing pain in his lower back woke him most times and he required pain medication to get back to sleep. He was constantly impacted by his disability and struggled to perform basic bending movements.
The applicant would unintentionally overexert himself at work, as he would want to continue being the best performing employee. He would also hate to let the team down. This would be at the expense of his overall physical health and he feared the long-term consequences to his body. He was also constantly sleep-deprived and operating machinery could prove fatal.

Evidence of Christopher Ford

Mr Ford is the owner and managing director of the respondent. He has provided a statement dated 29 July 2020. Much of the statement is directed to the issue of whether the applicant sustained injury on 30 September 2019. As it is not disputed that Mr Hussein did sustain an injury on that date, it is not necessary to refer to that part of Mr Ford’s evidence.
Mr Ford stated that the incident had been extremely frustrating, as the applicant did not display behaviour that was reasonable or consistent with having suffered a legitimate injury. He had viewed the CCTV footage and seen the applicant bending under the line after reporting the incident. When he left the factory, he was seen running to his car.
The applicant had told Mr Ford he had picked up a box of powder. Mr Ford asked, “A normal box, the 20kg box?”, to which the applicant answered “Yes, I’m going home”.
The applicant had been working for the respondent for a week or two when the injury occurred. He had described himself as a very experienced powder coater. He was extremely slight in stature, weighing approximately 45kg to 50kg. When he applied for employment, other workers had reservations as to his suitability, as he did not appear overly confident.
Mr Ford made a point of giving him an opportunity to prove himself and made some changes to the allocations to accommodate him.
A standard box is 20kg maximum. Mr Ford described the process, which required no twisting or undue tension or stress on the body. The mechanics of the task did not equate to the applicant’s description of the injury. Mr Ford was immediately suspicious – “it didn’t sit true to me”. He discovered that the applicant had been through workers compensation at his last place of employ. He allegedly hurt his shoulder and was away from work for 12 months.
Mr Ford viewed the footage, and the applicant was moving freely. He walked underneath the line and was seen grabbing something and going about his business. He had told Mr Ford he had other back injuries in the past. He later ran to his car, but when he spoke to Mr Ford, he said he couldn’t move.
There was talk among the workers that the applicant did not intend returning to work. He had complained that a car wasn’t provided but wasn’t there or ready when it was due to be collected. After the incident, he was seen trying to record the workings on the line and the workplace. Other staff reported this, and he was confronted and told to delete the footage.

Evidence of Noor Asma

Ms Asma is the applicant’s sister. She has made a statement dated 8 March 2021.
In November 2016, the applicant stated he felt pain in his lower back, as a result of repetitive bending and packing of boxes. He received minor treatment, but it was not long lasting. Ms Asma was aware that he made a claim, but the insurer declined it. She had noticed he was able to move, bend and twist freely, he did not complain of pain, and she believed the injury had resolved. This little incident did not affect him at all.
The applicant sustained an injury to his lower back on 30 September 2019. He had various treatment and was always worried and concerned about the pain. He had not made a full recovery. It became too difficult to involve him in any activities as Ms Asma feared it would flare up his injury. She noticed he was restricted in his movements. He was unable to play with her kids, as he was in too much pain. He continued to complain of back pain, and she saw him rubbing his back a lot.
Ms Asma was concerned about the applicant’s mental health. He had always been hard working and she knew he found it very frustrating sitting at home with little direction. She felt he got cranky much faster and would raise his voice. She thought he became very stressed as he did not know what his pain would be on a day-to-day basis. She knew he was not sleeping well.
Ms Asma had noticed that, since the injury, the applicant was only able to drive short distances without severe aching in his back. He was highly restricted in his ability to leave the house. It had become difficult for him to see his friends and he no longer enjoyed going to the movies. He had become severely restricted in his capacity to carry out housework, and Ms Asma attended to most cleaning tasks. When the applicant attempted to clean the house, he was incredibly slow and could clean only one room at a time. While he was independent in his ability to dress and shower, he was much slower than before.

Evidence of Sulaiman Mohammad

Mr Mohammad is the applicant’s roommate of about two years. He has made a statement dated 12 March 2021.
As far as Mr Mohammad was aware, the applicant never really had any issues with his health. He had been informed that the applicant sustained an injury to his lower back at work in September 2019. He understood the applicant had not made a full recovery.
Mr Mohammad had noticed that after the injury, the applicant was unable to stand for more than 15 minutes, as he began experiencing pain. He had noticed that the applicant’s movements were restricted, and he was always wincing in pain. He frequently grasped his lower back when walking. He was always complaining and hardly left his room.
Since the injury, Mr Mohammad had noticed that the applicant did not bend or squat, as it aggravated his back, and he took more than two to three days to recover. He often became unsteady when he attempted these tasks.
Mr Mohammad and the applicant were very close and would talk about everything, but since the injury, his concentration levels had decreased drastically, which had affected their friendship. The applicant hardly helped around the house, as he was constantly complaining of pain. This had also strained the relationship. Mr Mohammad was required to perform all the heavy cleaning. He knew Mr Hussein got agitated as he enjoyed cleaning before his injury.
On good days, the applicant was able to tidy up and wash dishes, using pacing strategies. On bad days, he lay on the couch or his bed. On one occasion, he completely broke down about his injuries and his experience with the insurer.
The applicant sometimes required assistance with ascending and descending stairs. He had difficulty participating in activities requiring heavy manual handling and prolonged standing, walking, bending and squatting. He relied on help for tasks such as vacuuming and mopping floors, cleaning bathrooms, hanging clothes, grocery shopping and bulk meal preparation.

Medical evidence

The clinical records of Haldon Street Medical Centre, Dr Bishoy Marcus, Dr Raoul Pope and Dr Azhar Khan are in evidence. As injury is not in dispute, counsel for the applicant did not make detailed submissions about them.

Haldon Street Medical Centre

The applicant was a patient of the centre from 25 February 2014 to 5 December 2019.
On 30 September 2019, Dr Ma Yu recorded that the applicant had right lumbar facet joint pain. This “happened at work while he was lifting and pouring the power [sic] bag – about 20kg to tank”. The applicant was to start WorkCover and rest for one week. Dr Yu would seek approval for physio “asap”.
The applicant was referred for a CT scan of his thoraco-lumbar spine on 8 October 2019.
Dr Yu responded to questions from iCare. She opined that the applicant had a strained back muscle. His CT scan showed scattered sclerotic lesions throughout the vertebrae. He had been referred for physiotherapy and to a neurosurgeon. The estimated timeframe for him to return to pre-injury duties was three to four weeks.
Dr Yu noted on 10 October 2019 that there was nil disc protrusion or nerve compression, but there were sclerotic lesions, and the applicant needed an MRI. He was to see a neurosurgeon and continue with physio.
On 15 October 2019, there was a case conference with “Mitch” (Mitchell Hartas) from IPAR. The applicant was to try light duties, four hours per day on alternate days, with no bending, no lifting more than 1kg, and breaks as tolerated for 5 to 10 minutes.
On 18 October 2019, Dr Yu recorded that the applicant had made a “not fit duties request”, as he was still not receiving money to buy medicine. “Still painful”, and his lawyer had told him to “get unfit duties and not to go for work”. The applicant was worried that if he got hurt again, he had nil medicine to take. He refused to go to trial duties as planned. Dr Yu changed his certificate to unfit until he received pain relief medicine.
On 4 November 2019, Dr Yu held another case conference with Mitch and the applicant. The applicant had an appointment with his specialist the next day. His bone scan was normal. The MRI showed sclerotic lesions throughout the spine. There was a new complaint of right hip pain and a complaint of upper neck and back pain. The applicant claimed Voltaren 25mg did not work, and it was to be increased to 50mg. He was awaiting exercise physiology if approved by the specialist.
On 11 November 2019, there was another case conference. The applicant claimed Voltaren only lasted for 15 minutes, he couldn’t drive, he was to see the WorkCover doctor, and he wanted more investigation for hip pain “etc”. He agreed to work suitable duties, three days alternatively, for four hours. Mitch was to arrange suitable duties, rehab appointment “etc”. The applicant was advised of the risks of many scans and to wait at least a few weeks before the next scans.
On 14 November 2019, Dr Ahmed Elarif recorded that the applicant would like to change GP for workers compensation. Dr Elarif advised that he was avoiding such cases and the applicant was referred to other providers. He consulted Dr Masum Ahmed on the same day.
On 18 November 2019, Dr Yu recorded that the applicant “also want[ed]” CT of the whole body to exclude any pathology causing sclerotic lesions in his spine, under Medicare. He had had a pain flare up. His legs were shaky and weak, and he was not able to continue suitable duties. There was a request to transfer his case to Dr Ahmed and “change unfit for 2 weeks”. A case conference would then again be arranged.
The applicant continued to consult both Drs Yu and Ahmed.
On 26 November 2019, Dr Ahmed recorded that the applicant’s specialist had rung, having seen Mr Hussein that day. He was very symptom focused. The doctor had advised him to return to work and thought he was fit for suitable duties, 12 hours per week, gradually increasing in a couple of months and then to pre-injury duties. Dr Ahmed also noted (the applicant had seen) Dr Kafataris. “Physio is not helping” but Dr Kafataris had advised referral to an exercise physiologist.
Also on 26 November 2019, Dr Yu recorded that she had a call from a functional capacity evaluation doctor, asking about the applicant’s injury. She explained about the injury, and that the applicant would be referred to Dr Ahmed for further care of his WorkCover, as Dr Yu had discharged him from her care after consultation with Dr Ahmed and the applicant himself.
On 2 December 2019, Dr Ahmed recorded that the applicant had not booked with
“Dr Mcaknie” (possibly Dr McKechnie) yet. He was to see an independent medical examiner on 17 December 2019. Suitable duties were discussed. The applicant argued that he could not stay on them but wanted to delay it for the next few days until a case conference.
The case conference with Mitch from IPAR took place on 5 December 2019. Dr Ahmed recorded that all the reports were discussed. The applicant was still not ready but was convinced after being shown his duties. “He keeps arguing. At the end he disagreed about the WC certificate & didn’t sign. He is happy to see another GP regarding this issue”.
Mr Hartas sent an email to various parties after the case conference. In summary, it recorded that Dr Ahmed had upgraded the applicant’s capacity to four hours per day, three days per week, with no driving restriction. The applicant was unhappy about this and became argumentative, prompting Dr Ahmed to state that he may be better off seeking treatment from a different doctor. The applicant did not sign the certificate of capacity (COC), as he did not agree with the restrictions.
Dr Ahmed had agreed with all the recommendations of the independent medical consultant (IMC) and provided a referral for exercise physiology. The applicant stated he would find a new nominated treating doctor (NTD) and advise the details within the next two days.
On 5 December 2019, the practice received a request to transfer the applicant’s records to Dr Marcus at Myhealth Liverpool.

Dr Raoul Pope – Neurosurgeon and Spine Surgeon

Dr Pope reported to Dr Yu on 22 October 2019. The applicant had attended that day with “Dominic” (Dominic Pinto-Hayes) from IPAR.

Dr Pope recorded a history that on 4 [sic] September 2019 the applicant was carrying a powder box of about 20kg repetitively, lifting and twisting. There was an insidious onset of lumbosacral junction back pain, initially to the right buttock and over to the left about a week later. It was daily worse with twisting and sitting. “No leg pain, pins and needles, numbness or weakness and a radicular characteristic”. There was no perineal numbness or sphincter problems. Lower back pain was “100% of his problem”.

The applicant could sit for 15 minutes, stand and walk for 10 minutes, and could only sleep on his sides. He had taken Voltaren but WorkCover declined to pay for any more prescriptions, so he had not taken anything. Physiotherapy twice a week had given short term benefit.
Dr Pope recorded fear avoidant behaviour on examination. He reviewed a CT scan of the applicant’s lumbosacral spine and lower thoracic region. There was good alignment, good disc space height and mild disc bulging at L4/5. There were also scoliotic lesions that were not destructive and could be non-specific. Dr Pope wanted an MRI to rule out fractures of the lesions, although work did not cause the lesions. He also wanted a CT SPECT bone scan to rule out inflammation of the facet or sacroiliac joints.
Dr Pope was confident the investigations would not come up with any issues that may require further intervention, such as surgery. He would most likely refer the applicant to an occupational physician or pain specialist. He thought the applicant could get back to a graded return to work program, initially light duties, which had been set up, to hold off until the tests were done, and then eventually back to pre-injury duties.
Dr Pope next reported on 5 November 2019, when he had the results of the MRI scan. It showed an L4/5 disc bulge, but no annular tearing. There were lesions in the L5 vertebral body and at T11 and L1/L3, without any bone destruction. There was a Schmorl’s node at T6. Although neoplastic conditions such as lymphoma could not be excluded, a CT SPECT scan did not show any particular uptake in the lesions, which made it less likely. Dr Pope felt they should be observed, and there was some possibility they may be contributing to some pain, but he felt most of it was due to the L4/5 disc bulge.
Dr Pope recommended that the applicant see Dr Azhar Khan for pain management. He was only on Voltaren. Dr Pope “think[s]” a graded return to work program, keeping lifting to 5kg currently, and to continue physiotherapy and maybe transition to exercise physiology over the next six weeks. He felt there was a good possibility the applicant could return to pre-injury duties. He did not feel they were heading towards any kind of surgery at the L4/5 disc and had asked the applicant to have an L4/5 epidural block to see if that helped.

There was some fear avoidant behaviour, and Dr Pope opined that Dr Khan would help the applicant with that. He needed encouragement to return to work, as the more time he had off, the less likely it was that he would have a good outcome. Dr Pope was to review him with MRI in six months, to make sure the lesions were not worsening.

On 18 November 2019, Dr Pope responded to a request from the insurer.

Dr Pope reported that the multiple sclerotic lesions in the lower thoracic and lumbar vertebral bodies, including the right posterior ileo- and left sacral alar were not work-related. They were incidental findings. The work-related injury was the L4/5 disc bulging. There was no annular tearing and no compression of the nerve roots, with no radicular leg pain or other symptoms involving the legs.

Dr Pope would focus exclusively on the L4/5 disc bulge as the work-related injury and have the multidisciplinary team focus on that going forward. The CT SPECT bone scan was also to rule out whether there was any facet joint inflammation at the L4/5 level, which it had done.

Dr Pope again reported to Dr Yu on 18 December 2019. The applicant had wanted to see him regarding the MRI and CT scan results of the thoracic spine. Apart from the findings noted previously, there was a solitary kidney node, which was an incidental finding. Dr Pope had recommended a renal ultrasound.

Dr Pope did not feel the thoracic vertebral body lesions required investigation with biopsies at that stage. He had recommended a repeat MRI of the thoracic and lumbar spine in six months. If there were any changes, they may decide to biopsy the lesions.

The applicant’s main issue was the L4/5 disc bulge and annular tear. Dr Pope wished to review that with the same scans and for the applicant to see Dr Khan for pain management, as he had not yet had the extra L4/5 epidural block. He would keep his lifting to less than
5kg and continue with physiotherapy. Dr Pope was to review him in June 2020 with the repeat MRI.
The applicant underwent CT guided epidural block at L4/5 on 14 January 2020, reported by Dr Tomokazu (Tom) Nishiguchi. He tolerated the procedure well, but collapsed afterwards, and Dr Nishiguchi attended to him before he was taken to hospital by ambulance. The applicant reported that his pain reduced from 9/10 to 0/10 after the injection. Unfortunately, its effects were short-lived.

Dr Pope next reported, this time to Dr Marcus, on 25 November 2020. He noted that the applicant’s “case has now been dismissed”, but the doctor was not sure why. The applicant said it was based on some old thoracic and lumbar x-rays in 2016. An IME felt there was a pre-existing problem, based on those x-rays. Dr Pope thought this sounded suboptimal.

The applicant’s presenting complaints were recorded as low back pain and bilateral pain, of one year and two months duration.

Dr Pope reported that the applicant continued to have lumbosacral junction lower back pain due to a disc bulge, initially with annular tearing, which then improved. The injection at L4/5 epidurally lasted a few days.

The applicant’s pain went into the buttocks bilaterally, the left leg, hamstring, lateral calf to the ankle. This was 40% of the pain in his legs on the right, in the similar distribution, which was 60% of the pain. It is unclear to me what this means. There were no pins and needles or numbness. The applicant was limping on the right leg occasionally. The pain was worse with mechanical activity, rather than rest.

The applicant had seen Dr Khan, but that had now not been approved, as his case was closed. He had a lawyer involved and was trying to reopen it.

The applicant had had some inflammatory changes, including at L5 and the sacro- and thoracic vertebral bodies. This was investigated with a bone scan, which did not show any florid uptake. These were not thought to be suspicious lesions. His thoracic pain had disappeared.

Dr Pope noted that the applicant could sit, stand and walk for 15 minutes at a time. He woke from sleep constantly. He took a nonsteroidal and Panadol mix. He had no bladder or bowel dysfunction and no erectile dysfunction. He had not had any physiotherapy since January, as that had ceased under WorkCover. His lower back was 70% of his problem and his lower limb symptoms were 30%.

The applicant was below average height and thin. He had a decreased range of movement of his back to 50%, with fear avoidant behaviour. There was some tenderness at the lumbosacral junction, with some muscular spasming. He was able to walk on heels and toes independently. His myotomes were normal. His reflexes were symmetric in the knees and ankles. Sensory examination and hip examination were unremarkable. The pelvic spring test was negative. There were good peripheral pulses and no wasting.

Dr Pope reviewed the MRI of the lumbar sacral spine, which showed the L4/5 herniation was slightly larger, but still no annular tearing. There were minimal Modic changes, no pars defects or spondylolisthesis and no neural exit foraminal stenosis. The vertebral body lesions at L5 and the ala of sacrum were much improved, “almost non-existent”.

Dr Pope opined that the applicant had ongoing discogenic lower back pain and some bilateral lower limb pain that may have been due to chemical irritation from the nerve root’s adjacent bulge. Even though there was no extruded component, that may be the case, but an epidural block only gave a few days relief.

Dr Pope wanted Mr Hussein to continue seeing Dr Khan for pain management and opined that he may need to see a pain specialist. He wanted the applicant to increase his core strength and flexibility and resume physiotherapy. His lawyers would “try to have the case overturned based on an IME’s examination of x-rays which cannot see disc bulges”. Dr Pope thought closing the case was somewhat premature and not based on medical fact.

Dr Pope concluded that the applicant had pain that needed to be investigated and treated under WorkCover. He was to review him in about three months.

Dr Pope reported to the applicant’s solicitors on 15 February 2021. He noted there was an error in his records, as the date of the injury was 30 September 2019, and not 4 September 2019. The history is otherwise consistent with his initial and subsequent reports. He noted the applicant had a back injury in 2016 but had made a complete recovery and returned to full duties without symptoms. The incident on 30 September 2019 would therefore be classified as a new injury.

Dr Pope opined that the applicant had suffered from chronic pain syndrome since the date of the injury and had been unable to work because of this pain. The L4/5 epidural block only gave a few days of relief and did not help longer term. When he reviewed the applicant in late 2020, his lower limb symptoms were 30% of his problem. They were a new feature that was not present in 2019. Examination revealed fear avoidant behaviour but no focal neurologic defects.

Further imaging revealed that the L4/5 disc bulge had become larger, with central annular tear, and the working diagnosis of discogenic lower back pain was made. Given the absence of any major compression on the neural structures, Dr Pope was not entirely sure of the diagnosis or cause of the bilateral leg pain but opined it is not uncommon for people with back injuries and disc bulges to have bilateral lower limb radicular symptoms. They could be due to nerve irritation within the neural exit foramina of the bulging disc, or the transiting nerves of the L5 nerve roots passing the L4/5 disc bulge.
Dr Pope opined that because some time had passed since the injury, the applicant had not been working, had a diagnosis of chronic pain syndrome, had disuse syndrome and had not been physically active, the chances of returning to his pre-injury occupation and a labour-intensive role were unlikely. He needed to have his diagnosis confirmed and pain management initiated and completed. This would usually be a multi-disciplinary approach.

Dr Pope opined that the applicant’s incapacity was a result of the incident at work on 30 September 2019. The combination of disc bulging, annular tearing and fear avoidant behaviour can culminate in chronic pain syndrome, depression and inability to work, or lead even a simple functional life.

It was unlikely that the applicant would require surgery, but pain management by a fellowship trained pain specialist and a multidisciplinary team would be highly recommended. Dr Pope noted and tended to agree with Dr Mellick’s evidence.

Dr Pope opined that, given the applicant’s case had been somewhat directionless, with no specific treatment plans instigated, his prognosis would remain poor. He would be happy to see the applicant as a private patient; and treatment plans could be instigated regardless of whether they were approved under WorkCover, followed through under Medicare. Dr Pope would also be happy to do that if Mr Hussein wished.

Dr Azhar Khan – Occupational Physician

Dr Khan reported to Dr Yu on 27 November 2019.
Dr Khan recorded a history that the applicant injured his lower back at work, while lifting a
20kg powder box. He recalled developing acute lower back pain. He was normally healthy but had previously injured his shoulder at work. This had resolved with conservative management. There was no history of prior lower back injury. That was incorrect.
The applicant’s treatment had consisted of pain relievers; physiotherapy twice a week; MRI of his lumbar spine; and assessment by Dr Pope. He was not working.
On examination, Dr Khan recorded normal gait; pain on palpitation of the mid-lumbar spine; normal cervical and thoracic spine range of movement; normal lumbar spine extension; 30 degrees of lumbar spine flexion; ability to squat and walk on heels and toes; and straight leg raising of 90 degrees in each leg, with no associated nerve root irritation.
Dr Khan noted the MRI report, dated 24 October 2019, discussed by Dr Pope in his report dated 5 November 2019.
The applicant’s management plan was for his treating doctor to refer him to a rheumatologist (“e.g. Paget’s disease, multiple myeloma etc)”; active physiotherapy with David Anderson; and nerve conduction studies of the lower limbs.
Dr Khan again reported to Dr Yu on 18 December 2019, the applicant having attended a follow up appointment on 16 December 2019. The applicant told Dr Khan his symptoms had worsened, and he complained of burning pain in his torso.

On examination, the applicant had a normal gait; pain on palpitation of T6; normal cervical and thoracic spine range of movement; normal lumbar spine extension and flexion; was able to squat and walk on his heels and toes; and straight leg raising was equal at 90 degrees, with no associated nerve root irritation, but associated with pain in the lower back.

Dr Khan’s management plan was for the applicant’s GP to arrange a nerve conduction study of the lower limbs, and referral to a rheumatologist; referral to pain specialist Dr Nazha, for which approval was sought; follow up in January 2020; and the report was to be forwarded to Dr Marcus.

There is a referral to Dr Alan Nazha, dated 16 December 2019, in Dr Khan’s clinical records, but no evidence that the applicant was ever treated by Dr Nazha. I assume this may be due to liability being disputed on 6 January 2020.

Dr Con Kafataris – Injury Management Consultant

Dr Kafataris reported to EML on 30 November 2019.
Dr Kafataris recorded a history that the applicant developed lower back pain when he lifted a box of spray paint powder, weighing approximately 20kg, from ground level. He had copies of the applicant’s CT scan of the thoracic and lumbar spines dated 8 October 2019; MRI of the thoracic lumbar spine dated 24 October 2019; and bone scan dated 29 October 2019.

The applicant complained of global pain over most of his spine. He also had global pain over most of the right and left lower limbs. There were no specific radicular features or neurological symptoms. The pain was aggravated by sitting for more than 20 minutes and walking for more than 10 minutes. There were no other aggravating or relieving factors. The applicant took analgesia but was unable to recall their names.
Dr Kafataris reported that it had become apparent that the applicant was very pain focused and gave a very detailed description of his symptoms and disability. He was doing very little, alternating between walking, sitting and sleeping. He performed no home duties and denied driving.

Dr Kafataris provided the applicant with an overview of the workers compensation scheme. The concept of work capacity was also discussed. Dr Kafataris advised the applicant that he felt he had capacity for suitable duties and could not agree that he was completely unfit for work. The applicant did not dispute this. The return to work options were discussed and
Dr Kafataris advised the applicant he may not have an ongoing entitlement, any support and weekly benefits were likely to be temporary, and certainly not until he reached retirement age. He suggested that the longer Mr Hussein took to return to some form of work, the poorer would be the long-term outcome. The applicant agreed that it would be beneficial to avoid this if possible.
Dr Kafataris suggested that the applicant would be fit for suitable duties for at least four hours per day and would need to focus on improving his strength and functional capacity. The limits of cognitive behavioural approach were discussed. Dr Kafataris attempted to assist the applicant to avoid overly focusing on his symptoms.
Dr Kafataris had called Dr Yu, who advised that she would no longer be seeing the applicant, as she was unable to continue treating him. He would be seeing Dr Ahmed. Dr Kafataris then discussed the matter with Dr Ahmed.
The discussion covered the applicant’s presentation, and it was agreed that he was substantially symptom focused, which clouded any attempts to return to work. Dr Kafataris stated that the applicant had been extensively investigated, and there were no red flags. He suggested there was no contraindication to returning to work, to which Dr Ahmed agreed.

It was agreed that the applicant be upgraded to the previous 12 hours a week of suitable duties. He had previously been given duties that required him to reach above shoulder height and Dr Kafataris suggested he be given work between waist and shoulder height, of a primarily sedentary or light nature. Dr Ahmed agreed.
Dr Kafataris suggested that Mr Hussein should focus on a structured exercise program over the next three months, to improve his functional capacity. Dr Ahmed agreed. Dr Kafataris then suggested an upgrading plan that would allow the applicant to return to pre-injury duties within two to three months. He suggested an upgrade to pre-injury duties approximately a month after. If that would not be achievable, the long-term return to work goal would need to be revised.
Dr Kafataris opined that the applicant presented with chronic back pain, with no evidence of radiculopathy. The MRI scan did not suggest evidence of any significant disc injuries, but it does not always accurately diagnose disc disruption. An accurate diagnosis required invasive tests such as CT discogram, which was not indicated at that point. The most accurate diagnostic label would be “mechanical back pain” with no evidence of radiculopathy.
The applicant had evidence of moderate yellow flag or inorganic component. There was evidence of abnormal illness behaviour. If this is not made [sic: perhaps “managed”], his long-term prognosis would only worsen.
Dr Kafataris opined that the applicant did not require any further investigations, apart from the repeat MRI scan requested by Dr Pope, to ensure the lesions were not worsening. He pointed out that it was highly unlikely that the lesions had anything to do with the work-related injury and were likely to be coincidental findings.
Dr Kafataris was of the view that the applicant was fit for full-time suitable duties, with restrictions. Despite this, he agreed to a graded increase in hours, to manage the abnormal illness behaviour. His hours should be upgraded as discussed with Dr Ahmed, over two to four months. During that time, he should have a lifting restriction of 5kg, change position every 20 minutes, and work between waist and shoulder level. He would then attempt to upgrade his manual handling capacity from 5kg to 10kg; and then 15kg and 20kg, at two weekly intervals. The outcome was to upgrade from no capacity to suitable duties.
Dr Kafataris carried out a file review and provided a further report dated 23 June 2020. He did not re-examine the applicant.
Dr Kafataris referred to the evidence of Drs Pope, Khan, Wallace and Mellick. He noted
Dr Mellick’s diagnosis of chronic pain, which he opined was not a diagnosis, but simply a symptom that may acquire to any chronic condition in any area of the body.
The applicant had undergone physiotherapy and chiropractic treatment. He had an epidural steroid injection at L4/5 on 14 January 2020. This appeared to cause dizziness and loss of consciousness. He was seen at and discharged from Campbelltown [sic: Canterbury] Hospital on 14 January 2020.
Dr Kafataris was not able to discuss the matter with Dr Marcus, and confirmed that
Dr Ahmed had not seen the applicant since 5 December 2019.
Dr Kafataris concluded that it seemed the applicant had continued to present with evidence of significant abnormal illness behaviour and inorganic component. The diagnostic label of “mechanical back pain” was used to describe the fact that the injury was most likely due to musculoskeletal structures, rather than neurological structures such as nerve root compression.
The other information provided to Dr Kafataris did not lead him to change his view in terms of diagnosis. He made no comment on liability, as that was not the role of an IMC. “All that can be said” was that when he saw the applicant his presentation was most consistent with mechanical musculoskeletal spinal injury, with no “red flag” condition or evidence of substantial disc injury.
With respect to treatment, Dr Kafataris opined that there was no “magic bullet”. Chronic mechanical back pain is best treated with a combination of structured exercise utilising CBT (cognitive behavioural therapy). In some cases, these techniques are done in the setting of a multidisciplinary pain management program, but unless an individual is sufficiently motivated to participate, it is a relative waste of time. The documentation suggested the applicant was significantly symptom focused, and Dr Kafataris was sceptical that he would engage and actively participate in such a program. It would therefore be of little benefit.
Dr Kafataris’s views on the applicant’s capacity for work remained the same. He could see no reason why Mr Hussein would not be fit for some form of suitable duties and was likely to be fit for full time work. The structured increase had been recommended to cope with his pain behaviour and abnormal illness behaviour, not because of the severity of his injury. Given the absence of major disc pathology or major facet joint injury, there was no reason why he could not work eight hours per day, five days per week at some form of work, even if it was with restrictions. The 5kg lifting restriction to work between waist and shoulder height should remain for the time being.
As Dr Kafataris had not re-examined the applicant, he deferred to Dr Wallace’s opinion that he was capable of returning to pre-injury duties. Given the absence of any major derangement, it was difficult to see why the applicant could not return to pre-injury duties were it not for his abnormal illness behaviour.
The main barriers to the applicant’s recovery were psychosocial factors and symptom magnification. He was more than six months post-injury, and it would be expected that in the absence of major disc injury or nerve root compression, he would be able to return to pre-injury duties with an appropriate graded return to work plan by that stage. He should have been capable of returning to full time work.

Dr Bishoy Marcus – General Practitioner (Myhealth Liverpool)

Dr Marcus began treating the applicant in December 2019. His clinical notes record on 9 December 2019 that the applicant was referred via EML/lawyer.

Dr Marcus noted a “very complicated story”. The main issue was L4/5 prolapse, although there was no nerve impingement. The applicant had sclerotic lesions, the reason for which was unclear, that may or may not be contributing to his pain.

The applicant was symptom focused and got up to walk around the room every 10 minutes, “though easily moving”. His previous doctor wanted him to go to work but he refused.
Dr Marcus had a long discussion with Mr Hussein. He advised him that he needed to return to work, “can’t continue like this”. He was advised his “change” [sic: possibly “chance”] of prolonging this was low and would affect his future job potential. Going to work was the best option. The applicant was advised he needed to engage with therapy and commence EP (assumed to mean exercise physiology).

On examination, Dr Marcus recorded generalised back pain, very non-specific. The applicant was highly anxious about the T6 lesion. Dr Marcus explained the nodes and noted “no pain from that”.

Dr Marcus advised the applicant that he was clinically fit to work some hours. He was advised to commence on 12 hours per week, and then review. He worked over an hour away. He was to commence EP.
On 9 December 2019 the applicant’s case manager, Ms Maggie Boyd, sent Dr Marcus an email, attaching a copy of his file. She advised that the applicant’s two previous doctors did not want to see him any longer, as they agreed he could return to work and was fit to work. The applicant did not agree because he believed he had a driving restriction. EML had eventually arranged transport for him to and from work, three times a week, but “this was not successful in the end”. Since 30 September 2019, all attempts and assistance in relation to Mr Hussein going back to work had failed.
EML had arranged an IMC review with Dr Kafataris, which would be provided to Dr Marcus on receipt. EML had declined liability for the lesions, which were an incidental finding.
Ms Boyd asked Dr Marcus to review the applicant’s file and continue to support the work being done to support and encourage the applicant to return to work. They had had “so many conversations” with the applicant about returning to work, as the employer was supportive of him doing so. The applicant continued to believe he could not work and had advised EML that he would find a doctor to give him what he wanted, which was an unfit certificate. Ms Boyd was happy to discuss the claim, or Dr Marcus could contact Mr Hartas or the applicant’s previous doctors.

On 13 December 2019, Dr Marcus recorded that the applicant stated his pain was more marked in the thoracic region. He was highly concerned about the Schmorl’s node and “really upset that it’s happening”. He was pacing around the room and seemed to be in pain, but it was not affecting his movement. He had made an appointment with Dr Pope on Tuesday.

Dr Marcus advised the applicant that he needed to do his exercises, physio and EP. He would only give him one week off until all the reports were done. He had explained what the nodes were and that they are mainly asymptomatic.

On 20 December 2019, Dr Marcus recorded a “very complex consultation”. It covered WorkCover, “causality” and return to work. After much discussion, the applicant agreed to return for 16 hours per week. Dr Marcus advised him that if he did not go back, “will not work out well for him”. A referral to Dr Bassal Hassan was given.

Dr Marcus recorded on 8 January 2020 that the applicant’s claim had been denied. He had ongoing pain in his back. Dr Marcus advised him he could go through Medicare and to seek legal help.

On 17 January 2020, Dr Marcus recorded that the applicant had had a cortisone injection and had a syncopal episode. He was upset that he was not to be on WorkCover. His lawyer wanted to lodge an appeal. Dr Marcus advised him “not much I can do”. The applicant was very symptom focused. He wanted a WorkCover certificate “with restrictions for lawyers”.
Dr Marcus tried to talk him out of it, “no chance”.
On 17 January 2020, Dr Marcus certified the applicant with capacity to work from 17 January 2020 to 17 April 2020, but the hours and days he was able to work were not specified. There were restrictions on lifting/carrying (5kg); sitting and standing (each for 60 minutes); pushing/pulling (as tolerated); bending/twisting/squatting (as tolerated); and driving (as tolerated). The applicant “needs transport to work and appointments” and was to continue physiotherapy and specialist review. He was to have exercise physiology for hydrotherapy.
On 17 February 2020, Dr Marcus recorded that the applicant “wants his WorkCover cert updated his way, not going to put up a fight on that front as it serves no purpose. Wants everything reduced”.
The COC dated 17 February 2020 certified the applicant with some capacity from 17 February 2020 to 17 April 2019 [sic], with restrictions on lifting/carrying (5kg); sitting and standing (each for 15 minutes “as per patient”); pushing/pulling (as tolerated); bending/twisting/squatting (“nil as per patient”); and driving (15 “as per patient”). Once again, the hours and days the applicant was able to work were not specified. The restrictions on his activities had been increased, based on his own report; and he still required transport and the same additional treatment.
Dr Marcus recorded similar findings on 18 March 2020, when he noted that the applicant wanted something else for the pain besides Mobic, “not even sure if he is taking it, Naprosyn given”. He also recorded “pain focused +++++”. The COC issued on 18 March 2020 certified the applicant with no capacity for work from that date to 18 June 2020, despite also certifying the same restrictions on his activities as were recorded on 17 February 2020. Dr Marcus noted “wants unfit on cert”.
On 18 June 2020, Dr Marcus certified the applicant with no capacity for work until 18 September 2020. He has continued to issue certificates for six month periods, certifying that the applicant has no capacity for work.
On 18 September 2020, Dr Marcus noted no major improvement. The applicant had seen the IME again. “Advised MSK [musculoskeletal] injury not related to work”. Dr Marcus advised the applicant there was not much he could do. The applicant wanted a repeat WorkCover certificate. Dr Marcus recorded that he was fear avoidant and had discogenic pain.
On 19 November 2020, Dr Marcus recorded that the applicant needed a referral back to his specialist. He was still complaining of pain. Dr Marcus was “really unsure what is causing it, aggrieved by it, feels hard done by”. A Centrelink certificate was issued.
On 18 February 2021, Dr Marcus recorded that the applicant had been in hospital with exacerbation of his back pain.
On 11 May 2021, Dr Marcus recorded that the applicant had been involved in an accident on 7 May 2021, when a van had reversed out of a driveway into his vehicle. He hit his head to the right. He felt his back had been very tender, more than normal, since. He went to Canterbury Hospital and was assessed and discharged. The range of motion in his back was the same. There were no neurological symptoms. Dr Marcus referred the applicant for bilateral lower limb nerve conduction studies. He recorded that “his legal team who are challenging a disputed WorkCover claim, have requested this”.
Dr Marcus reported to the respondent’s solicitors on 17 May 2021.

Dr Marcus had first reviewed the applicant on 9 December 2019, for a second opinion, as he was unsatisfied with his treating GP. He recorded a consistent history of the injury, the applicant having come under Dr Pope’s care, and that there was a mild L4/5 disc bulge with no annular tear.

After much discussion in his initial and subsequent consultations, Dr Marcus advised the applicant that he was reasonably fit for some form of work.

The applicant’s main complaints centred around ongoing back pain, which made it uncomfortable to sit, stand, bend or twist for any reasonable length of time. He was aggrieved that WorkCover had not taken his claim seriously and denied liability. He had incidental findings of likely benign sclerotic lesions in his thoracic and lumbar spine, which were not relevant to his work injury.

The applicant’s pain had been managed with anti-inflammatories and physiotherapy. Unfortunately, despite multiple attempts to encourage him to return to the workforce in any capacity, he remained unemployed.

Dr Marcus had always told the applicant he had some level of fitness to return to work. He had some capacity for office-like duties that could accommodate a sitting/standing desk, at the very least. Dr Marcus appreciated that the applicant may experience some pain but opined that it was largely discogenic and was unlikely to resolve with extended physiotherapy or surgery. Enrolment in a multidisciplinary pain program may be of benefit.

Dr Marcus opined that the applicant had not recovered from his back injury. However, he felt there was a component of pain-fear avoidance and angst towards the decision to deny liability that was contributing to his perceived pain. Examination had been unremarkable since he first met the applicant, and he could not locate the origin of the thoracic/lumbar pain.
As regards incapacity for work, Dr Marcus reported that at the applicant’s request, he had given him his certificate of capacity since liability was declined. However, the applicant was aware that Dr Marcus felt he could do some sort of work. Even if there was some incapacity from his initial injury, Dr Marcus felt it would be minimal, and would not preclude him from some sort of suitable employment.
Dr Marcus again reported to the respondent’s solicitors on 20 October 2021.
Dr Marcus had reviewed information provided about the applicant’s previous employment (which I assume included his previous back injuries) and his “co-employment”, assumed to mean with Texas Aardvark. He had been unaware of this, but his opinion was unchanged. He opined that the applicant had sustained a back injury that should have resolved “by now” and, while he was unable to do his previous role, he was suitable for some alternative employment.
As Dr Marcus had started seeing the applicant only in December 2019, and had not examined him before, he was unable to definitively say that his previous employment or co-employment was the cause of his injury.
In relation to the applicant’s motor vehicle accident, Dr Marcus opined that, considering the nature of the applicant’s injury and his presentation, the accident had not had any major bearing on his workplace injury. In general, a simple lumbar strain of the nature sustained would have resolved within four to six weeks, with or without much treatment.

Dr Raymond Wallace – Orthopaedic Surgeon

Dr Wallace was qualified by the respondent and reported on 30 December 2019.
Dr Wallace recorded a consistent history of the injury and the applicant’s treatment by Drs Yu and Pope. While the applicant denied any previous injury or history of lumbar spinal pain,
Dr Wallace noted he had undergone x-ray of his thoracolumbar spine on 2 November 2016, for investigation of “upper and lower back pain”.
The applicant complained of a constant aching pain at the lumbar spinal region at the L5 spinous process, radiating to the lateral aspect of the right leg to the level of the foot. The pain was worse with lifting, bending and twisting, or with repetitive activities. It was relieved by lying down, home exercises or physiotherapy. The applicant noted no paraesthesia or numbness at his lower limbs. He complained of weakness at the right knee and stiffness at his lumbar spine.
The applicant had attempted to return to work on three occasions but could continue for only four hours before ceasing due to lumbar spinal symptoms. He was off work at the time of the examination.
Dr Wallace recorded that the applicant weighed 40kg and was of very thin build. Examination of his lumbar spine showed no swelling or deformity. His range of movement of forward flexion was to the mid-tibia, extension 30 degrees, left and right lateral tilt 30 degrees and left and right rotation 80 degrees. There was tenderness at the L4/5 spinous processes. His gait was normal. His straight leg raising was 70 degrees bilaterally, restricted by tight hamstrings. The reflexes in his lower limbs were equal and symmetrical. His power and light touch sensation were intact. His calf circumference was 26cm on the right and 25cm on the left.
Dr Wallace reviewed the applicant’s investigations. He diagnosed minor musculoligamentous strain at the lumbar spine, which would have settled within a week of the incident. The applicant had no evidence of ongoing disability at his lumbar spine on examination. He had no evidence of acute pathology at the lumbar spine on MRI investigation and bone scan examination. Dr Wallace opined that his minor work-related injury had resolved. His employment was not a substantial contributing factor to any current lumbar spinal condition. He did not require any treatment or medical review for any work-related condition and was fit to resume his pre-injury work without restriction.

Dr Ross Mellick – Consultant Neurologist

Dr Mellick was qualified by the applicant and reported on 3 April 2020. He noted that communication was somewhat impaired because of a language barrier.

Dr Mellick recorded a consistent history of the injury on 30 September 2019. The applicant had done this task many times and it required him to twist his back. On this occasion he had sudden pain in the lower lumbar region.

The applicant’s back pain persisted. About a month after the injury, he began to experience pain in the back of the right thigh and outer aspect of the right lower leg, with extension onto the dorsum of the right foot, particularly the right fifth toe. Dr Mellick noted this history was provided partly by language and partly by gesture. The applicant indicated that the pain was also now behind the left thigh, in a position similar to that on the right. He was restricted with bending and lifting and had abandoned playing soccer because of back pain. There was no abnormality of bladder or bowel sensation or control.

Dr Mellick was unable to establish the medication taken by the applicant. While there was a language barrier, the history clearly pointed to symptoms in the lower back, with referred symptoms to both lower extremities. The applicant’s past history did not include any back injury. However, in 2016, he was struck on the head, neck and right shoulder by a falling object and had pain at those sites. The symptoms resolved. There was no back pain or symptoms in the lower extremity at that time.

Dr Mellick recorded on examination that Mr Hussein was of very slight build, with small muscle mass symmetrically and globally. There was no abnormality of his gait, or on examination of his cervical and lumbar regions. With encouragement, there was normal and unrestricted power in all muscles tested distally and proximally in the lower extremities, and deep tendon reflexes were present and symmetrical. In the standing position, forward flexion was limited to 40 degrees, lateral flexion to 20 degrees bilaterally, and extension to less than 20 degrees. Spinal movements were not associated with evidence of paravertebral muscle spasm. The applicant was able to stand on tiptoes and his heels. Rombergism [swaying while standing with feet together and eyes closed] was absent. The applicant did not appear to experience pain or distress at any time during the examination.

Dr Mellick noted that the applicant had generally small muscles. There was no specific evidence of muscle wasting, diagnostic evidence of a traumatic spinal lesion or evidence of neurological cause for the symptoms in the distribution he described. The multiple sclerotic lesions were not of traumatic origin and had no relevance to his chronic pain. Dr Mellick opined that it was overwhelmingly probable they did not represent acquired pain producing pathology.

Referring to the MRI performed on 24 October 2019, Dr Mellick referred to the second paragraph of the report, which he opined was directly relevant to the history of the injury. It included the finding of mild disc bulge at L4/5, with a small posterior central disc protrusion and no canal or foraminal stenosis. The radiological information provided no evidence of traumatically based pain producing pathology that might explain the applicant’s reported symptoms. The findings were in keeping with Dr Mellick’s findings on examination.

Dr Mellick opined that it was likely that the applicant suffered a muscle strain at the time of the injury. The temporal relationship between his clinical condition and the injury clearly existed. However, Dr Mellick was unable to identify evidence establishing a structural spinal lesion or a neurological or neurosurgical mechanism that might explain the chronic pain. That comment was not intended to question Mr Hussein’s veracity. His diagnostic comments directed attention for the main symptom of chronic pain to outside the frames of reference of neurology.

Dr Mellick reported that the initial injury should be regarded as having been a muscle strain. The current diagnosis was chronic pain. There was a temporal relationship between them. Employment was the main contributing factor to the applicant’s condition.
Commenting on Dr Pope’s reports, Dr Mellick noted agreement with regard to the absence of diagnostic signs on examination and the non-specific nature of the sclerotic lesions. He disagreed with Dr Pope that attention should be directed specifically at the disc bulge. It was not evidence of pathology, and Dr Mellick was not able to establish from Dr Pope’s report that he considered the applicant’s condition to be caused by that minor radiological feature. Dr Mellick was not able to clearly identify in Dr Pope’s reports a specific diagnosis explaining the pattern of symptoms, with reasoning to support it.
Dr Mellick opined that the applicant’s chronic pain, dating from the time of the injury, and resulting in his condition, involved inability to resume work because of the symptoms reported. They were not diminishing with time, and his future work capacity was affected.
Dr Mellick agreed with Dr Pope that there was no indication for surgery. The applicant’s ongoing treatment needed to be directed on the basis of a clear and accurate diagnosis by specialists in chronic pain, occurring the context of the findings Dr Mellick had reported. His prognosis depended on management of his chronic pain. Dr Mellick was unable to provide a prognosis of his future work capacity, as the cause of the underlying mechanism for his complaints was not determined by a neurological or radiological diagnosis.
Dr Mellick made no assessment of permanent impairment, as the applicant’s condition was not diagnosable within his specialty.
Dr Mellick again reported on 18 January 2021, having been provided with “a large number of documents”.
Dr Mellick was made aware that the applicant had had back pain in July 2016, November 2016 and May 2017, and had x-rays on 2 November 2016 that showed thoracic and lumbar mild degenerative spondylosis.
Dr Mellick confirmed his opinion that the applicant had most likely suffered a muscle strain on 30 September 2019. His main clinical problem was chronic pain and muscle strain, and it was the only reasonable, organically based explanation for his symptoms.
The additional details provided did not change Dr Mellick’s findings on examination, as recorded in his first report. The x-rays performed in 2016 had been superseded by more recent investigations, and “accordingly, the radiological findings recorded in my previous report are also superseded with regard to diagnostic significance”.
Dr Mellick opined that it was likely that each of the applicant’s injuries and disabilities had arisen as a result of episodes of muscle strain. It was possible that some other underlying pathology was responsible at the earlier time, which had entirely resolved before his assessment of the applicant in March 2020.
As regards capacity to work, Dr Mellick opined that the applicant had been rendered unable to work because of chronic pain. However, it was likely that the pain varied in intensity and his capacity for work may also vary commensurately.
Dr Mellick noted that the known natural history of pain arising as a result of muscle strain is improvement to full resolution. The applicant did not require intrusive treatment such as surgery, and treatment for each episode of muscle pain was symptomatic relief and “also the application of an optimistic prognosis”.
On the basis of the diagnosis of muscle strain, Dr Mellick opined that the underlying pathology should be regarded as justifying a favourable prognosis. However, the repetition of chronic pain was an unfavourable prognostic factor and may have some aetiological connection to his previous findings on examination, when he detailed that the applicant was of slight build, with small muscles symmetrically and globally.

Dr David Gorman – Pain Medicine Specialist

Dr Gorman was qualified by the respondent and reported first on 4 August 2020.
Dr Gorman recorded a consistent history of the injury. He noted that MRI on 24 October 2019 showed multiple sclerotic lesions in the applicant’s lower thoracic and lumbar spine. A bone scan showed non-specific focal bony lesions in the visualised lumbosacral spine. A CT scan of the abdomen was done to provide reassurance that the sclerotic lesions were not associated with any other illness, such as malignancy.
The applicant had been treated by Dr Pope, who felt that any ongoing pain was most likely due to the L4/5 disc bulge. He had noted some fear avoidant behaviour. The applicant had continued physiotherapy. By 16 December 2019, he had increased burning sensation in the middle back, radiating down the lumbar spine. He had had an epidural injection at L4/5 on 14 January 2020, after which he was dizzy and had to be monitored for a short time at Canterbury Hospital. However, the effects were not long lasting.
Dr Gorman noted that the applicant had described his job in his statement as very physical, with repeated bending and squatting. Mr Hussein did not feel he could do this. Dr Wallace felt he could resume his pre-injury work without restriction. Dr Mellick had concluded that the applicant had a “chronic pain injury”, within the expertise of a chronic pain specialist.
The applicant had sustained injuries to his head, neck, back and right shoulder in 2016, due to a falling object at work. He underwent right shoulder surgery by Dr Kuo. His right shoulder recovered after 12 months and he was eventually certified fit for full duties.
Dr Gorman noted that the applicant had stated he had not had any [prior] injury to his low back. However, his GP’s records showed that on 10 June 2015 he complained of low back pain without radiation. He had also complained of this on 1 November 2016, while he was on workers compensation for his shoulder. He had an x-ray of the thoracic and lumbosacral spine, which showed mild degenerative spondylosis and sacroiliac osteoarthritis on the right. Dr Gorman also had a list of prior claims from SIRA. The claims were in July 2015, August 2016 and November 2016.
The applicant was paying for physiotherapy, as insurance support had ceased, and was taking anti-inflammatory medication. No further treatment was proposed.
Dr Gorman recorded that the applicant continued to have pain over the lower back. After two months the pain in his right leg started, and then moved to the left side. It radiated down to the left toes. It was a “burning pain”. He woke with burning sensations in his low back. He felt pain with activity. His friends helped him with cooking and shopping, and to carry heavy items.
The applicant was a very small man, with height of 157cm and weight of 40kg. On examination, Dr Gorman found a normal range of movement of the cervical spine and no abnormalities of power, sensation or reflexes in the upper limbs. The range of motion in both shoulders was equal and normal. The applicant had some limitation in flexion of the lumbar spine, to two-thirds of what would be expected. Lateral flexion and extension were normal. Power, sensation and reflexes in the lower limbs were all normal. The applicant did not report any pain in the lower limbs on the day of the examination.
Dr Gorman noted the applicant’s investigations, including the x-ray of his thoracolumbar spine on 1 November 2016.
Dr Gorman diagnosed musculoligamentous strain of the lumbosacral spine. The applicant continued to have some tenderness over the paraspinal muscles and the mid-lumbar spine, but no other significant findings.
Dr Gorman opined that the applicant was fit for employment. He had a good range of lumbosacral movement and there was no radiculopathy. Dr Gorman did not believe any incapacity was related to the work incident.
The applicant was very “fear avoidant”. He felt there was “something inside” causing back pain. Dr Gorman opined that these behaviours needed to be modified, which was best done via a multidisciplinary pain clinic. The applicant had developed unhelpful beliefs about his injury and should be reassured by the specialists that there was no major problem or disease in his lumbar or thoracic spine. He was upset that insurance was no longer helping. He needed to gradually increase his activity, which would be best done through a return to work program.
Dr Gorman concluded that the applicant had a musculoligamentous strain in the lumbosacral spine. Unfortunately, he had developed behaviour such as fear avoidance and beliefs about the cause of his pain that were unhelpful to his recovery. However, Dr Gorman did not believe he had features of “chronic pain syndrome”. He was not overusing medications, had not become markedly inactive, and had not become significantly depressed.
Dr Gorman did not believe the applicant’s abnormal beliefs could be considered as being caused by the work injury. Overcoming them may be difficult, due to his different cultural background, but Dr Gorman could not relate this difficulty to the work injury.
Dr Gorman again reported on 6 October 2021.
On this occasion, Dr Gorman recorded a history that at the time of his injury, the applicant was also working for Texas Aardvark printing T-shirts. He would work from five to seven days per week between both jobs. After the injury, he could not work in either job.
The applicant had been involved in an accident on 7 May 2021, when a car he was driving was hit on the side by a car reversing out of a driveway. He went to Canterbury Hospital with some increased lumbar pain. He was reassured, and Dr Gorman understood the aggravation had settled. The applicant reported that his symptoms had returned to their previous level.
Mr Hussein still reported low back pain. He spent a great deal of time on his bed. When he slept and twisted, he got back pain. On occasions, the pain went to his right leg and occasionally his left. He did not have any numbness or tingling in the leg. His sister and a friend helped with cooking and other household tasks. For the last two years, he had had trouble washing his clothes, shopping and cooking.
The examination was conducted by telehealth. Dr Gorman again noted that the applicant was a very small man. His weight was 39kg. There was little change from the previous examination. The limitation in flexion of the lumbar spine was one-half normal. The applicant reported pain over the low back.
Dr Gorman noted an additional investigation, MRI of the lumbar spine dated 24 November 2020. It recorded a radial peripheral annular tear at L4/5, which did not result in significant central canal or nerve root compromise.
Dr Gorman opined that the applicant had discogenic pain, most likely from L4/5, after a lifting injury at work. He had not taken part in any pain or rehabilitation program and remained very fear avoidant, with minimal activity. He reported a walking tolerance of 10 to 15 minutes and sitting for 10 to 15 minutes.

The applicant’s period of disablement had been out of line with what could be expected after such a discogenic injury. Dr Gorman noted that Dr Mellick also felt the period of disability was excessive for what he described as a “muscle strain”.
Dr Gorman diagnosed the applicant with discogenic lumbar spinal pain with marked inactivity and fear avoidance behaviour perpetuating his pain. With such marked fear avoidance and inactivity, he had become unfit “certainly” to return to any job involving bending, twisting or lifting. The incapacity must be explained by behavioural features of his presentation.
Given such marked behavioural abnormalities, Dr Gorman could not relate the applicant’s
incapacity to the work injury. Whilst it was likely that the disc injury led to the lumbar pain, the unhelpful beliefs about his injury and unhelpful behaviours had perpetuated his pain and incapacity. Dr Gorman “now” could not relate his presentation to the work injury.

The applicant has provided written submissions on the issue of his PIAWE
In summary, the applicant firstly submitted that he was entitled to weekly payments with a PIAWE based on his combined earnings with the respondent and Texas Aardvark.
The date of injury preceded the amendments to the 1987 Act that repealed section 44C of the 1987 Act and replaced Schedule 3 of the Act. The applicant accepted that, for the purposes of defining the PIAWE, he fell within item 1, clause 2 of Schedule 3 [sic].
The applicant submitted that the words “at least” in column 3 may be interpreted as including his concurrent earnings with Texas Aardvark. His primary submission was that his PIAWE should be calculated in accordance with his Wage Schedule, combining his income with both employers. He submitted that 80% of the PIAWE is $1,039.90 per week.
In the alternative, the applicant submitted that, if his earnings with the concurrent employer are not to be included, then his PIAWE should also include overtime and shift allowances for the first 52 weeks, in accordance with section 44C(2) of the 1987 Act. He submitted that the respondent’s figure of $912 per week should be rejected, as it allowed only 38 hours per week at $24 per hour.
The applicant submitted that, based on his statement dated 15 March 2021 (at paragraphs 10 and 11) and the PAYG summary from iCare for the year ending 30 June 2020, it appears he ceased work on the date of the injury, and weekly payments commenced on 1 October 2019. His gross earnings were from the date of commencement to the date of injury, being 18 days, or 2.57 weeks. Accordingly, his PIAWE, based on the respondent’s payments, including overtime and shift allowances, was $3,156 ÷ 2.57 weeks = $1,228 per week. Pursuant to section 37 of the 1987 Act, the relevant rate was $982.40 per week (80% x $1,228).

Respondent

The respondent has provided written submissions, in accordance with my direction.
The respondent submitted that there is no issue that the applicant injured his back. Liability was declined on the basis that the injury had resolved. It submitted that whatever pathology resulted from the injury on 30 September 2019, it was minor, and the applicant has substantially, if not completely, recovered from the incident and has capacity for full-time employment, relying on Dr Wallace’s evidence.
The respondent has referred to the medical evidence, and in particular that of Dr Yu and
Dr Pope, and later Dr Ahmed. It submitted that the applicant was argumentative with his GPs, particularly in relation to his capacity for suitable employment, and for that reason his care changed from Dr Yu to Dr Ahmed and by December 2019 to Dr Marcus. He also appeared to be seeking investigations to prove he had some pathology.
The respondent submitted that Dr Pope reported on 5 November 2019 that the MRI scan showed no annular tearing, and he was therefore incorrect in reporting on 18 December 2019 that the applicant had an annular tear.
The respondent then referred to the evidence of Drs Khan and Kafataris, and the functional capacity assessment on 10 December 2019. It submitted that the applicant was assessed to have capacity to work for five hours per day, four days per week.
The respondent submitted that all the medical evidence found little in the way of signs of ongoing problems as a result of the incident on 30 September 2019. There were variable complaints of symptoms. The GPs’ clinical notes support the findings of Dr Wallace that there was no ongoing disability in the applicant’s lumbar spine as a result of the incident on 30 September 2019. This is further supported by Dr Marcus.
The respondent therefore submitted that the Commission would not be satisfied that the applicant has had any incapacity on and from 30 January 2020 as a result of the injury on 30 September 2019.
The respondent made submissions on the epidural injection and the applicant’s investigations. There is no explanation from any doctor as to why the MRI scan on 24 November 2020 demonstrated an annular tear, while that on 28 October 2019 did not, or why a disc bulge would become larger without further incident.
The respondent submitted that Dr Mellick’s report was not provided in a fair climate. He was not aware of the applicant’s pre-existing back issues. The Commission would not be satisfied that the applicant has a “chronic pain syndrome” based on Dr Gorman’s opinion. He was of the view that he could not relate the applicant’s incapacity to the work injury.
As regards Dr McCoy’s evidence, the respondent submitted that his report is dated 6 June 2021, but the applicant’s consultation was on 7 June 2021, so if the dates are correct,
he prepared the report before seeing the applicant. It submitted that diagnosing discogenic back pain would not be within his specialty, and no weight ought to be given to his opinion. He also did not obtain a history of back complaints in 2015 and 2016 or the x-ray on 1 November 2016.
The respondent then made submissions as to the correct PIAWE to be applied.
The respondent submitted that as the Workers Compensation Amendment (Pre-injury Average Weekly Earnings) Regulation 2019 applies to injuries received on or after 21 October 2019, the amendments do not apply to the applicant’s injury.
The respondent referred to the calculation of the PIAWE provided for by Item 2 of Schedule 3 of the 1987 Act (prior to the 2019 amendments). A PIAWE form completed by the respondent indicated the applicant was employed under the Manufacturing and Associated Industries Award.
The respondent submitted that section 44H of the 1987 Act, which was in force at the date of the applicant’s injury, defined the ordinary hours of work in circumstances where a fair work instrument applies as the hours “agreed or determined in accordance with a fair work instrument between the worker and the employer…”. The award in force at the date of the injury confirmed “ordinary hours” are 38 hours per week. The applicant worked 38 hours per week for the respondent in the pay period from 19 September 2019 to 25 September 2019.
The respondent submitted that, given there is an applicable fair work instrument and the fact that Item 2 of Schedule 3 does not specify the period over which the ordinary (38) hours are to be worked, the applicant falls within Item 2 of Schedule 3. It refers to a single employer and the respondent submitted the PIAWE calculation provisions do not require consideration of any concurrent employment. Therefore, no consideration is to be given to the applicant’s earnings from Texas Aardvark.
The respondent finally submitted that the applicant’s PIAWE is $912 per week, and his earnings with Texas Aardvark are not to be considered.

SUMMARY

The respondent does not dispute that the applicant sustained an injury to his lumbar spine on 30 September 2019. There are differing descriptions of exactly what he was doing when the injury occurred, but it appears that the standard weight of the boxes he was required at times to lift was 20kg. It is apparent from the evidence, both that of Mr Ford and of the medical practitioners, that the applicant is a slightly built and lightly muscled man, weighing only about 39kg or 40kg.
The applicant maintains that at all relevant times he has been totally incapacitated for work. In his submission, the combination of a disc injury at L4/5, annular tearing and chronic pain syndrome means that he had and has no capacity for work. He submitted that his incapacity has been prolonged because he has not had appropriate treatment, which would include specialist pain management.
The respondent’s case is, in effect, that the applicant sustained a minor musculoligamentous strain that should have resolved within a very short time, and has in fact resolved, so that he has had no incapacity for work since 30 January 2020, when his claim for weekly benefits commences.
The applicant changed his NTD from Dr Yu to Dr Ahmed, and from Dr Ahmed to Dr Marcus. It appears that the reason was that he did not agree with the recommendations of Drs Yu and Ahmed regarding his fitness to perform some work for the respondent.
This does not sit easily with the applicant’s evidence that he wanted to return to work but knew he must listen to his doctors’ orders, and that Dr Yu had strongly advised against it. She did nothing of the sort. She was attempting to encourage him to return to work, and he resisted her attempts. He has said in his first statement that he disagreed with her opinion that he should return to light duties.
The applicant’s evidence is that he contacted WIRO when Dr Yu suggested he return to work on light duties. He stated that WIRO advised him to request a certificate stating he was unfit for pre-injury duties and not to return to work. If that is correct, it appears to have been singularly unhelpful advice in the circumstances of this matter.
The applicant’s evidence about his desire to return to work is also contradicted by that of
Ms Boyd, who told Dr Marcus he had advised EML he would find a doctor who would give him an unfit certificate. I accept that evidence, because it accords with the applicant’s actions and the evidence of Dr Marcus. I have therefore given little weight to the applicant’s evidence about his capacity for work and have relied on the medical evidence. I have also given little weight to the other lay evidence on which the applicant relies. It does not assist me my determination.
It is important in determining the applicant’s capacity for work to address his undisputed fear avoidant behaviour and pain focused beliefs. It is unfortunate that incidental and apparently benign investigative findings appear to have played a significant part in convincing
Mr Hussein that the condition of his lumbar spine is more serious than is objectively the case. In saying that, I do not discount that there is a finding of pathology at L4/5 and, as the applicant submitted, that was confirmed by epidural injection at that level. The physical and psychosocial aspects of the applicant’s condition must be considered together.
The medical evidence that pre-dates the commencement of the period in dispute is of limited assistance. Most of the practitioners expressed the opinion that the applicant had capacity for work, and some opined that he was, or would become, fit for his pre-injury duties. However, most also had reservations about whether that would be achieved, given his own beliefs and fears about his condition.
The exception to these opinions was that of Dr Wallace, who opined in December 2019 that the applicant had sustained a minor injury, the effects of which had resolved, and he was fit for his pre-injury duties. He has not, however, noted the pain focused behaviour that was noted by the other practitioners, including Dr Kafataris, an experienced IMC, who would be expected to have expertise in identifying “yellow flags”.

It appears that the only period in respect of which the applicant claims weekly benefits when he was certified by his GP as fit for some work was the period from 30 January 2020 to 18 March 2020.
The COCs issued by Dr Marcus on 17 January 2020 and 17 February 2020 are of little assistance, perhaps because of his ambivalence about the applicant’s capacity for work. He has reported to the respondent’s solicitors that he had always maintained that the applicant had some capacity. However, the applicant had made it very clear to every GP he consulted that he disagreed with their assessment of his capacity. Dr Marcus noted he was very pain focused. That was apparent virtually immediately after the injury occurred. Dr Marcus thought the applicant may benefit from a multidisciplinary pain program.
At about the same time the applicant began consulting Dr Marcus, he was also under the specialist care of Drs Pope and Khan.
Dr Pope has been treating the applicant since October 2019. He is well placed to provide an opinion about the diagnosis and capacity for work. He opined that most of the applicant’s pain was due to the L4/5 disc bulge. He believed it should be the focus as the work-related injury.
Dr Pope noted from the outset the applicant’s fear avoidant behaviour and opined he would need encouragement and help from Dr Khan to return to work. It appears that the applicant may have consulted Dr Khan only once. Dr Khan made several recommendations, including that he should be referred to Dr Nazha.
The applicant did not have Dr Khan’s encouragement and help and was not treated by
Dr Nazha or any other pain specialist. That is important in assessing his capacity for work.
On 15 February 2021, Dr Pope reported that the applicant’s L4/5 disc bulge had become larger, with a central annular tear. The applicant also had leg pain. While Dr Pope was unsure of its cause, he accepted that the applicant had the symptoms. He opined that the applicant had suffered from chronic pain syndrome since the date of the injury and had been unable to work because of the pain.
Dr Mellick, who was qualified by the applicant, disagreed with Dr Pope that attention should be directed specifically at the disc bulge. He did not believe the disc bulge was evidence of pathology. There is no reference in his report to the report of the CT guided injection, although it was performed on 14 January 2020, and he examined the applicant on 11 March 2020.
Although Dr Mellick disagreed with Dr Pope on the significance of the disc bulge (and there is no way of knowing whether his opinion would have changed had he reviewed the results of the injection), he nonetheless opined that the applicant’s chronic pain meant he was unable to resume work.
Dr Mellick believed that the applicant’s initial injury was a muscle strain, but his then current diagnosis was chronic pain, which Dr Mellick could not explain by reference to a spinal lesion or neurological/neurosurgical mechanism. He stressed that he was not intending to question Mr Hussein’s veracity.
Dr Mellick opined that the applicant’s treatment should be informed by specialists in the treatment of chronic pain, and his prognosis depended on such treatment. As the applicant submitted, and as I have noted, no such specialist treatment has been provided.
I do not agree that Dr Mellick’s opinion was not provided in a “fair climate” (as discussed in Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58). He has referred in his supplementary report to the applicant having back pain in 2016 and 2017, and to x-rays performed on 1 November 2016. He has stated that those details do not change his findings on physical examination of Mr Hussein, and nor could they.
What then are the opinions of those who specialise in pain management, and who have been qualified in this matter?
Dr Gorman diagnosed a musculoligamentous strain of the applicant’s lumbosacral spine. He thought Mr Hussein was fit for employment, and any incapacity was not related to the work incident. The applicant had developed behaviour and beliefs that were hindering his recovery, but Dr Gorman did not believe they were caused by the work injury.
It is difficult to conceive of any other cause for the applicant’s beliefs, and I do not accept
Dr Gorman’s opinion that they were not caused by the work injury. The applicant was working two jobs that apparently required physical effort before the injury and had returned to work after previous work injuries. Once this injury occurred, he almost immediately began to exhibit fear avoidant and pain focused behaviour. Whether there was an objectively reasonable basis for that behaviour, there does not appear to be any doubt on the evidence, including that of Dr Gorman, that it exists.
In his second report, Dr Gorman opined that the applicant was unfit for work involving bending, twisting or lifting. His marked behavioural abnormalities were such that Dr Gorman could not relate his incapacity to the work injury, but the evidence is overwhelmingly that his behaviour was the result of the injury and his own beliefs about its seriousness. Dr Gorman also conceded that the applicant’s disc injury had led to lumbar pain, which was perpetuated by his unhelpful beliefs and behaviours. That appears to me to be the case.
Dr McCoy noted that the applicant required a multidisciplinary assessment, which had not occurred. He agreed with Dr Pope about the source of the applicant’s pain. He noted the applicant’s response to the epidural injection, and he did not agree with Dr Mellick that
Mr Hussein had a muscle strain or muscle injury.
Dr McCoy did not believe that the applicant’s diagnosis was one of chronic pain. He provisionally diagnosed discogenic back pain with some musculoskeletal pain. I do not believe anything turns on the date of the report. I also do not agree that no weight should be given to his diagnosis. According to his cv, he has been involved in clinical pain medicine for over 20 years. He had access to numerous reports and investigations, he took a detailed history, and he has analysed the investigations. Dr Gorman, who was qualified by the respondent, also diagnosed discogenic lumbar spinal pain. It is not suggested that his specialty did not allow him to make such a diagnosis.
The applicant’s case is that, at all relevant times, he has been totally incapacitated for work. The respondent’s case is that he has at least substantially recovered from the effects of the injury on 30 September 2019 and is fit for full-time employment. Neither party has made any submission that the applicant has a partial incapacity for work.
Section 32A of the 1987 Act defines “suitable employment” as follows:
“suitable employment”, in relation to a worker, means employment in work for which the worker is currently suited--
(a) having regard to--
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker's age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of--
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker's pre-injury employment, and
(iv)the worker's place of residence.”

Having considered the medical evidence, and the applicant’s circumstances, I am satisfied that the applicant has at all relevant times had no capacity for work. I accept the evidence of Drs Pope and Mellick, although they differ on the significance of the disc bulge, that the applicant has no work capacity. Dr Mellick did not question the applicant’s veracity. He opined that the diagnosis was one of chronic pain. Interestingly, both Dr McCoy and
Dr Gorman diagnosed discogenic back pain. I do not accept Dr Gorman’s opinion that the applicant was fit for work and his behaviour and beliefs were no longer related to the injury.
As I have noted above, the applicant has not been afforded the pain management treatment that may have assisted in overcoming his pain avoidant behaviour and allowed him to return to productive work, although it was unlikely he would return to his pre-injury duties.

The parties do not agree on the applicant’s PIAWE. It is accordingly necessary that
I determine the PIAWE before making an award of weekly benefits.
The former section 44C of the 1987 Act applies to the applicant, as his injury occurred before 21 October 2019.
Section 44C of the 1987 Act provided as follows:
“44C Definition—pre-injury average weekly earnings
(1)In this Division, pre-injury average weekly earnings, in respect of a relevant period in relation to a worker, means the sum of:
(a)the average of the worker’s ordinary earnings during the relevant period (excluding any week during which the worker did not actually work and was not on paid leave) expressed as a weekly sum, and
(b)any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable).
(2) If a worker has been continuously employed by the same employer for less than 4 weeks before the injury, pre-injury average weekly earnings, in relation to that worker, may be calculated having regard to:

(a)the average of the worker’s ordinary earnings that the worker could reasonably have been expected to have earned in that employment, but for the injury, during the period of 52 weeks after the injury expressed as a weekly sum, and
(b)any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable).

(3) If a worker:

(a)was not a full time worker immediately before the injury, and
(b)at the time of the injury was seeking full time employment, and
(c)had been predominantly a full time worker during the period of 78 weeks immediately before the injury,
pre-injury average weekly earnings, in relation to that worker, means the sum of:
(d)the average of the worker’s ordinary earnings while employed during the period of 78 weeks immediately before the injury (excluding any week during which the worker did not actually work and was not on paid leave) (the qualifying period), whether or not the employer is the same employer as at the time of the injury expressed as a weekly sum, and
(e)any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable).

(4) In relation to a worker of a class referred to in Column 2 of an item in Schedule 3, pre-injury average weekly earnings means the amount determined in accordance with Column 3 of that item, expressed as a weekly sum.
(5) An overtime and shift allowance payment is permitted to be included in the calculation of pre-injury average weekly earnings (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable) if:
(a)the worker worked paid overtime or carried out work that attracted a shift allowance during the relevant period, and
(b)the worker would, but for the worker’s injury, have been likely, at any time during that 52 week period, to have worked paid overtime or carried out work that attracted a shift allowance.

(6) The amount of an overtime and shift allowance payment that is permitted to be included is to be calculated in accordance with the following formula:

where:
A is the total amount paid or payable to the worker for paid overtime and shift allowances in respect of the relevant period.
B is the number of weeks during the relevant period during which the worker worked or was on paid annual leave.
(7) If the amount of a worker’s pre-injury average weekly earnings is less than any minimum amount prescribed by the regulations as applicable to the worker, the amount of the worker’s pre-injury average weekly earnings is deemed to be that minimum amount. Different minimum amounts may be prescribed for different classes of workers, including part-time and full-time workers.”

Section 44H of the 1987 Act provided as follows:
“44H   Definition applying to pre-injury average weekly earnings and current weekly earnings—ordinary hours of work
In relation to pre-injury average weekly earnings and current weekly earnings, the ordinary hours of work:
(a)  in the case of a worker to whom a fair work instrument applies are:
(i)  if the ordinary hours of work in relation to a week are agreed or determined in accordance with a fair work instrument between the worker and the employer—those hours, or
(ii)  in any other case, the worker’s average weekly hours (excluding any week during which the worker did not actually work and was not on paid leave) during the relevant period, or
(b)  in the case of a worker to whom a fair work instrument does not apply:
(i)  if the ordinary hours of work are agreed between the worker and the employer, those hours, or
(ii)  in any other case, the worker’s average weekly hours (excluding any week during which the worker did not actually work and was not on paid leave) during the relevant period.”
Reference must be made to the former Schedule 3, as provided for by section 44C(4). In my view, the respondent is correct in submitting that the applicant’s PIAWE is to be determined by reference to Schedule 3, Item 2. He was a worker employed by two or more employers, and who worked for one of those employers (the respondent) for at least the ordinary hours fixed in an applicable fair work instrument. Pursuant to Column 3, then, his PIAWE is calculated with reference to his work for the employer for whom he worked at least the ordinary hours fixed in the fair work instrument. That employer was the respondent. His PIAWE does not include his earnings with Texas Aardvark.
Section 44C(2) provided that if a worker had been employed for less than four weeks before the injury, which is the case for the applicant, his PIAWE may be calculated having regard to the average of the ordinary earnings he could reasonably have been expected to earn during the 52 weeks after the injury, had he not been injured; and any overtime and shift allowance that is permitted to be included under section 44. This applies only to the first 52 weeks for which weekly payments are payable.
I do not accept the applicant’s alternative submission that his PIAWE should also include overtime and shift allowances. He has referred in his submissions to his statement dated 15 March 2021 at paragraphs 10 and 11. Those paragraphs refer to his previous back injuries. Paragraphs 10 and 11 of his statement dated 19 May 2020 refer to the circumstances of the injury. Paragraphs 10 and 11 of his statement dated 29 July 2021 refer to his disabilities and a claim for weekly benefits that is apparently related to his employment with Texas Aardvark. I am unsure what I am expected to take from that evidence. The applicant’s evidence is that he was employed by the respondent on a full time basis, working 38 hours per week (paragraph 7 of his statement dated 19 May 2020). There is no reference to overtime or shift allowances. It is clear that his evidence about night shifts and weekend work is a reference to his work for Texas Aardvark.
An Initial and Workplace Assessment Report from IPAR, dated 17 October 2019, recorded the applicant’s pre-injury hours at 37.5 hours per week, although they were recorded as 38 hours per week in the Recover at Work Plan dated 19 December 2019. It was noted that he had a 30 minute break per shift. His payslips record normal time of 38 hours per week.
The “Calculating Pre-Injury Average Weekly Earnings” Form completed by the respondent, dated 9 October 2019, states that the applicant’s working days were Monday to Friday, inclusive. No overtime was paid, no shift work was performed, and no additional allowances were paid. That is consistent with his payslips.
Contrary to the applicant’s submission that he ceased work at the date of the injury, it appears that he did return to work, albeit briefly. Dr Wallace has recorded that he attempted to return to work on three occasions but could continue for only four hours. That is consistent with the payslips issued by the respondent on 14 November 2019, 21 November 2019 and 19 December 2019, each of which records payment for four hours “normal time”. It was also noted by Dr Kafataris that the applicant had been given (suitable) duties that required him to reach above shoulder height, which he suggested required modification. This may account for the additional amounts referred to in the applicant’s submissions. Unfortunately, neither the applicant nor the respondent has given any evidence about this.
I determine that the applicant’s PIAWE was $912, and the award will reflect that finding.
There is an award for the applicant, pursuant to section 37 of the 1987 Act, at the rate of $729.60 per week, from 30 January 2020 to date and continuing; and an award for the applicant, pursuant to section 60 of the 1987 Act.

The orders are as set out in the Certificate of Determination.

[2022] NSWPIC 6

10 January 2022