Latcham v Boom Logistics Limited - [2021] NSWPIC 60

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Latcham v Boom Logistics Limited [2021] NSWPIC 60
APPLICANT:	Mark Latcham
RESPONDENT:	Boom Logistics Limited
PRINCIPAL MEMBER:	Ms Josephine Bamber
DATE OF DECISION:	6 April 2021
CATCHWORDS:	WORKERS COMPENSATION- Lump sum claim; respondent asserted that effects of agreed injury to lumbar spine had ceased and subsequent lumbar symptoms after incident walking dog was a novus actus; Held- award for applicant and referral to medical assessor for assessment of permanent impairment from work injury; finding that it was not necessary for worker to plead nature and conditions of employment claim as finding effects of work injury had not ceased.
DETERMINATIONS MADE:	1. The effects of the work-related injury to the applicant’s lumbar spine on 12 February 2014 have not ceased. 2. The lump sum compensation claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows: (a) Date of injury: 12 February 2014 (b) Body parts: Lumbar spine 3. The documents to be referred to the Medical Assessor are to include those attached to the Application to Resolve a Dispute, Reply and Application to Admit Late Documents dated 29 January 2021 and a copy of this Certificate of Determination/Statement of Reasons. 4. Pursuant to section 60 of the Workers Compensation Act 1987, the respondent is to pay the treatment expenses upon production of account, receipts and/or Medicare Notice of Charge. 5. Award for the respondent in relation to the allegation of injury from the nature and conditions of employment.

STATEMENT OF REASONS

BACKGROUND

Mark Latcham commenced employment with the respondent, Boom Logistics Ltd, in about 2006 as a crane operator/rigger. He left for a short time in February 2013 to work for another company and returned to the respondent’s employ in about September 2013.
Mr Latcham was part of a team installing bridge beams for the construction of the national by-pass at Ballina. This involved him climbing in the beam to attach rigging and to perform various manoeuvres. On 12 February 2014 during such a process Mr Latcham fell and landed on his lower back inside the beam. He informed his work colleagues of the injury. The next day he completed an incident report and then went to his doctor. He stopped work and from 28 February to 4 April 2014 he did light work in the respondent’s yard. At this time, he had a 5kg lifting/carrying restriction. His certification was increased on 7 April 2014 to a 7.5kg lifting/carrying restriction and on 14 April 2014 increased to 12.5kg restriction. On 22 April 2014 he was certificated fit for his pre-injury duties.
In early May 2014 he was moved back by the respondent to work at the Ballina site. In November 2014 he resigned his employment with the respondent.
In December 2014 Mr Latcham commenced work with Wollongong Cranes, which involved smaller cranes and he did more driving and less rigging work.
In September 2015 he was at home and decided to take his dog for a walk. He says he bent down to put the lead on the dog and felt a pain in his back, running down his left leg. He states he tried to return to work but his back continued to give him pain. He has not worked since 19 September 2015.
After medical treatment, including injections into the left L4/5 nerve root, Mr Latcham lodged a workers compensation claim for recurrence of injury with the respondent’s insurer, AAI Limited t/as GIO.
By way of a notice pursuant to the then section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 2 March 2016[1], GIO conceded that
[1] ARD p 24.
Mr Latcham had suffered injury on 12 February 2014 but disputed that he had suffered an injury on 25 September 2015 [sic]. Reference in that notice was made to Dr Kumarge’s clinical notes on 19 September 2015 referring to Mr Latcham’s left leg falling into a hole when walking his dog a week earlier resulting in pain in the lower back, radiating to the buttock and thigh. GIO also disputed the reasons given by Mr Latcham for leaving the employ of the respondent.
Mr Latcham sought a review of GIO’s decision relying on the opinion of Dr Bye in his report dated 11 May 2016[2].
[2] ARD p 29.
On 9 June 2016 GIO issued a further dispute notice maintaining their declinature of the claim[3].
[3] ARD p 31.
On 25 January 2019 Mr Latcham made a claim for lump sum compensation with his solicitors serving a report from Dr Bodel dated 30 November 2018.
On 13 May 2019 GIO issued a notice pursuant to section 78 of the 1998 Act denying liability for the permanent impairment claim because their Dr Panjratan had assessed Mr Latcham’s impairment from the injury on 12 February 2014 at 0% WPI[4].
[4] ARD p 36.
On 31 July 2020 Mr Latcham made a claim for treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act)[5].
[5] ARD p 52.
On 10 November 2020 Mr Latcham’s solicitors gave notice that they were going to plead injury to the lumbar spine as a result of the nature and conditions of employment between 22 April 2014 and 28 November 2014, this was in addition to the injury on 12 February 2014[6].
[6] ARD p 55.
At the arbitration hearing the claim for weekly compensation was discontinued, however, the claims for lump sum compensation and section 60 expenses were still pressed.
The respondent disputes that Mr Latcham had a nature and conditions injury to his back, and it contends that the effects of the back injury on 12 February 2014 had ceased. It also alleges that Mr Latcham sustained injury to his lumbar spine in the dog incident and this was the cause of his need for treatment, including his spinal fusion.

PROCEDURE BEFORE THE COMMISSION

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.
A conciliation conference/ arbitration hearing was held on 5 February 2021 by telephone due to the COVID-19 situation. Mr Greg Young, counsel, instructed by Ms Michelle Meigan, solicitor, appeared for Mr Latcham, who was present. Mr Lachlan Robison, counsel, instructed by Ms Katt Faapito, solicitor, and Ms Nicole Leneve from GIO, appeared for the respondent. Mr Young made oral submissions but there was insufficient time for the respondent to make its submissions. Therefore, the matter was concluded with written submissions.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents (ARD);
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents (AALD) filed by the respondent dated 29 January 2021;
(d)    Respondent’s written submissions dated 5 February 2021; and
(e)    Applicant’s written submissions in reply dated 14 February 2021.

Oral Evidence

There was no oral evidence. Mr Young made oral submissions in chief.

FINDINGS AND REASONS

Mr Latcham’s account of the injury on 12 February 2014 on an incident report dated 17 April 2014 was as follows:
“Exiting gusset flange. Lost footing and hand support, falling on back against flange base and bracing, causing severe bruising and straining of back and neck”[7].
[7] AALD p 46.
Mr Latcham has provided five statements which are not summarised at this point to avoid duplication, because counsel in his submissions referred to them extensively and I have summarised his submissions.

Mr Jewitt

Mr Jewitt worked with Mr Latcham and had known him for 10 years. He states:
“In May of 2014 Mark returned to Byron with the 450t crane to install bridge
beams. One of our first tasks was to place the bridge beams for dual lifting with the already on- site crane in order to control the load tag lines are attached to the beam. While lifting one of the girders the breeze caused the girder to turn. I saw that Mark was over exerted and in pain trying to hold the tag line and told him to let go, which he did. We placed the load and unhooked, I could see he was in a lot of discomfort. I asked him if he was ok, he said the pain in his back took away the strength to hold the rope. He said it's probably from not doing any real hard work for while.
Over the next two months on the job Mark struggled with the heavy work load on a lot of time. There were sub-standard work practices being employed by Lend Lease, plywood sheets (documented safety procedure) should have been used to cover over the cell holes in the girders, to protect the cell wall from being smashed by swinging lift gear, and allows the lifting gear to rest on top of the ply to be un-hooked and then the lifting gear can slide on the plywood safely lifted slowly by the crane. Lend Lease said there would be no plywood, the Lend Lease supervisor, Sean changed the RMS procedure and told us to deal with it or pack the crane up and get off site. Scott and Mark had to hold the slings (2ton of lift gear per end) out with rope tag lines while I hooked up. Mark and Scott were on their limits of strength with every beam to hold the ropes, on one of our last lifts they were being dragged into the beam I shouted out to them to let them go it, fearing a serious incident or injury would occur.
Mark was in a lot of discomfort and pain when he cooled down he approached me and said he could no longer handle working on big cranes with the way his back was and needed to be replaced. I informed this to Stuart Lawson. He was replaced by Clayton Lowe for the next job. I worked on and off with Mark till the end of Nov 2014 he told me his back had been playing up working on big cranes, when I did asked how his back was. In mid Nov he told me he was going to resign because he felt his back was not going to get better working on big cranes. In the years working with Mark on heavy lift cranes, prior to his injury in Feb 2014 I have never known him to have or talk of back
[8] ARD p 17.
problems.[8]”

Mr Sergi

In a statement dated 10 August 2017 Mr Sergi, the managing direction of Wollongong Cranes, says in the pre-employment interview with Mr Latcham, Mr Sergi asked him his reason for wanting to leave the respondent’s employ and he said that he had a back injury in February and had problems with his back working on big cranes and was happy to take a cut in wages to operate small cranes. He says he asked Mr Latcham what sort of problems he had with his back on large cranes and Mr Sergi says he said his back would get sore and stiff and at time he had pain in his left leg when working with heavy gear. So, Mr Sergi said he employed him to start in early December 2014 as a full-time small crane operator[9].
[9] ARD p 16.

Treating medical evidence

On 21 February 1994 Illawarra Occupational Health (IOH) conducted a preplacement/periodic health assessment medical examination of Mr Latcham and assessed his spinal strength as normal[10]. In a similar assessment on 21 September 2006 again the spine was rated as normal[11].
[10] Reply p272.
[11] Reply p 266.
On 14 August 2007 the file notes from IOH refer to minor back pain with stiffness in the morning. Back injury in 1983 is noted when Mr Latcham was knocked off a working platform by a crane and landed on his back on loco wheels, it was a half a metre fall. The next day he was unable to get out bed. He had pain in his lower back and mid thoracic - which took three to four months to improve. On examination the doctor found localised tenderness at T7-8. On 15 August 2007 another assessment at IOH reported the back and lower limbs were normal[12]. It was noted that he manages surfing and “occupation/marriage”, the doctor ordered an x-ray but stated that his impression was it was an old injury and there was no evidence of a new condition[13].
[12] Reply p 232.
[13] Reply p 183.
On 17 January 2013 Dr Davis from IOH stated he was a fit male of stated age. The spine examination was normal[14]. This was a pre-placement/periodic examination. On 23 December 2013 a medical examination was conducted by IOH of Mr Latcham in which the back and lower limbs were ticked on the form as normal[15].
[14] Reply p 303.
[15] Reply p 313.
On 13 February 2014 Dr Jerome Mellor saw Mr Latcham and issued a WorkCover NSW -certificate of capacity in which he referred to the injury as LBS (lumbar back strain) and neck strain. He sets out in the certificate various restrictions on employment[16].
[16] ARD p 57.
On 14 February 2014 Mr Latcham underwent an x-ray of his cervical, thoracic and lumbar spine on the referral from Dr Todd Davis. Degenerative changes were noted at L4/5 and L5/S1[17]. The physiotherapy assessment on 17 February 2014 refers to him falling on to his back, 50cm in height. It was observed that he had bruising, swelling over the low back and had an abrasion over L3[18]. Later in the notes there is reference to a “haematoma ® L3, 4 area”[19]. On the body diagram completed by the physiotherapist on 17 February 2014 in addition to the hatching over the low back and neck, there is a note of swelling and bruising in the lumbar region and where the diagram has printed the words “Pins & Needles Numbness” the physiotherapist has written “Yes”[20]. It is not stated which part of the body this was in reference to and I note there were complaints also recorded about Mr Latcham’s neck and left shoulder.
[17] ARD p 59.
[18] Reply p 149.
[19] Reply p 151.
[20] Reply p 148.
Dr Davis and Dr Jones issued WorkCover NSW -certificates of capacity on 28 February 2014 and 14 and 27 March 2014 describing the injury as upper back, lower back strain, neck strain and recommending treatment comprising of physiotherapy and NSAIDS with a 5kg lifting/carrying restriction and no bending/ twisting/squatting ability[21]. On 7 April 2014 the certification changed to a 7.5 kgs lifting/carrying restriction and on 14 April to 12.5kg restriction but with a comment to avoid heavy manual labour[22].
[21] ARD pp 61- 67.
[22] ARD p 72.
Physiotherapy management plans were completed[23]. The IOH physiotherapy notes refer to Mr Latcham experiencing his back locking throughout this time.[24] On 7 April 2014 the physiotherapist notes that Mr Latcham had tried standup paddle boarding but lasted 15 minutes as his back locked up on him[25]. On 17 April 2014 the physiotherapy notes record that his back has not locked up and he was able to walk for 45 minutes and was moving freely. On 22 April 2014 the physiotherapist noted it was his expectation that Mr Latcham would not require any further plans as he was responding to treatment[26].
[23] Reply pp177 ff.
[24] Reply pp 148 -162.
[25] Reply p 159.
[26] Reply p 162.
On 22 April 2014 Dr Jones issued the fit for pre-injury duties certificate and it contains no restrictions, however, it still refers to the management plan with treatment as physiotherapy and NSAIDs[27]. On 29 April 2014 Dr Jones changed the management plan on the certificate to home exercises[28]. In a very brief clinical note on 29 April 2014 Dr Jones wrote “no problems à final M/C”[29].
[27] ARD p 75.
[28] ARD p 78.
[29] Reply p 131.
Dr Kumarage’s clinical notes record an entry on 19 September 2015 as follows:
“(back pain)
Fell on to a small hole while walking the dog 1/52 ago
c/o pain LBP à radiating to the left buttock and the thigh
?? pinched nerve/. Strained muscle
[30] ARD p 121.
Rev 2/53[30]”
On 25 September 2015 Dr Kumarage records in his clinical notes that Mr Latcham is “much better than last week-still limping”. He was advised to rest and taken Brufen. The doctor noted “no convincing radiculopathy”. On 2 October Dr Thangavel at the same practice records that Mr Latcham had been to an osteopath and still had the same pain. He was referred for an MRI scan. On 9 October 2015 Dr Kumarage noted the pains had improved and Mr Latcham was planning to go back to work on Monday. He recorded the MRI scan results and noted the plan if Mr Latcham was not 100% better, he would have a steroid injection.
On 15 October 2015 Dr Kumarage noted Mr Latcham said he was not getting enough pain relief and agreed to have the steroid injection. The doctor said some component of the pain may be left L2 and left S1 as well. Dr Kumarage records “2yrs ago had a work related fall and hurt lumbar spine, had 2/52 off and 3/12 light duties. Told I cannot tell his present condition contributed by the previous fall”[31].
[31] ARD p 121.
Dr Kumarage issued a non-Workcover certificate on 30 October 2015 certifying that on 19 September 2015 Mr Latcham reported to him stating that he has been unfit for work from 21 to 25 September 2015 and mentions “back pain/leg pain (?pinched nerve)”[32]. A similar certificate was issued to cover the period from 25 September to 2 October 2015 for back /leg pain[33] and also from 2 to 8 October 2015 referring to low back pains. All these certificates have the date 30 October 2015. Another certificate covers the period 15 to 23 October 2015 and has “low back pain- await steroid injections[34].”
[32] ARD p 80.
[33] ARD p 81.
[34] ARD p 82.
On 6 October 2015 an MRI scan of the lumbar spine was performed with the history recorded “low back pain radiating to left leg”. Various degenerative changes were noted with a far left lateral focal disc protrusion at L4/5 with mass effect upon the L4 nerve root beyond the foramen. In the body of the report the radiologist stated that this is likely the symptomatic lesion[35].
[35] ARD p 85.
On 15 and 22 October 2015 at Dr Kumarage’s request CT guided Left L4-5 facet joint injections were performed on Mr Latcham[36].
[36] ARD pp 83 and 87.
On 29 October 2015 Mr Latcham filled out a recurrence of injury form in which he referred to the date of recurrence as 25 September 2015. He said the recurrence occurred at home and that before this he had had to make a role change as he could not perform heavy physical tasks. He said he had symptoms when he resumed work after his original injury, to a slight degree but he felt he could return to work and build from there. He said he has received ongoing treatment of acupuncture, remedial massage and stretching techniques and exercise designed to support his lumbar region. He circled “yes” that he remembered a gradual increase in pain or discomfort prior to the latest episode and “yes” that he has experienced a sudden episode of severe pain following a specific or abnormal incident.
Mr Latcham describes the recent incident as follows:
“Since July 2014 the area has become notably tight and sore in normal duties but has stayed manageable since then. Stepping back on uneven ground (slight), has brought the area of past injury back to same levels of restrictions and pain”.
On 30 October 2015 Dr Kumarage issued another certificate of unfitness to cover the period 26 October to 8 November 2015 referring to “low back pain radiating to left lower limb”[37].
[37] ARD p 88.
On 29 October 2015 Dr Kumarage gave Mr Latcham a referral to Dr Cherukuri which refers to him having “LBP radiating to left leg since middle of September 2015 following jarring his back”[38].
[38] ARD p 89.
On 5 November 2015 an x-ray and bone scan of the lumbar spine were undertaken at the request of Dr Cherukuri. The latter showed multilevel facet joint arthritis in the lumbar spine, most active in the left L4/5 facet joint[39].
[39] ARD pp 90 and 91.
On 9 November 2015 in his clinical notes Dr Kumarage wrote:
“2/2014 had another back injury (work related) off 3/12- under IOH, he changed job due to his injury (move to operate small cranes). Saw Dr Cherukuri on Wednesday. He says Dr Cherukuri looked at MRI and told current problem stems from the previous injury”[40].
[40] ARD p 120/121.

On 11 November 2015 Dr Cherukuri reported to Dr Kumarage with the following history:
“Mr Latcham who presents to my rooms with his wife with history of back pain radiating to the left gluteal region which started initially in January 2014 when he was working. He was working in Ballina and was in a bridge beam which involved a lot of bending and twisting and developed acute onset of back pain radiating to the left gluteal region. He could not initially move and had to take time off until April 2014. With physiotherapy he felt good and returned back to work, however, found it difficult and had to cut down his job and started working on smaller cranes. Ever since, he has been undergoing regular physiotherapy, osteopathic treatment, massage treatment etc. Five weeks ago he had acute worsening of pain with pain radiating down the left leg all the way to the shin, also radiating up towards the interscapular region.[41]”
[41] ARD p 94.
Dr Cherukuri referred to the MRI scan and stated that the left sided foraminal disc at L4/5 was severely impinging the L4 nerve root explaining his symptoms.
On 13 November 2015 Dr Kumarage completed a Medical Practitioner’s Statement for Coverforce[42]. He states that Mr Latcham had been his patient since December 2010, and he diagnosed compression of left L4 nerve root from a L4/5 disc prolapse. He ticked that this condition was due to injury and stated, “Jarring of his lower back following a fall into a small hole”. He stated that he first treated Mr Latcham for this on 19 September 2015. The doctor ticked “yes” when asked if Mr Latcham had suffered from a similar condition in the past. He added “he has had a work related back injury 17 February 2014”. When asked if the condition was work related, he ticked “no” but added “But he has had a work related back injury 2/2014 (I don’t have any information about this).”
[42] Reply p332.
On 16 December 2015 Dr Cherukuri reported again to Dr Kumarage and recommended decompression and fusion at L4/5 as there was listhesis and severe facet arthropathy and it was a foraminal disc that was affected[43].
[43] ARD p 95.
On 2 February 2017 Dr Cherukuri reported to Mr Latcham’s solicitors[44]. The report has the same history as related above. The doctor diagnosed L4/5 stenosis with listhesis with an L4/5 disc protrusion. The doctor was asked his opinion about causation and he answered the question whether employment was a substantial contributing factor to the injury in the affirmative. He was asked to refer to the dog incident in his answer. Dr Cherukuri added that Mr Latcham:
“had initial back pain and left sciatica following injury at work which aggravated further following another minor incident. The disc protrusion at L4/5 could have certainly been as result of work related injury. it is common for the initial injury to be aggravated by subsequent minor manoeuvres.[45]”
[44] ARD p 96.
[45] ARD p 97.
However, Dr Cherukuri in recounting the history does not refer specifically to the dog incident, although, as I have noted, the question to which he was responding with this answer asked him about the dog incident.
On 6 February 2017 Dr Kumarage reported to Mr Latcham’s solicitors. The doctor emphasised he did not treat Mr Latcham in 2014. He saw him on 19 September 2015 with low back pain radiating to the left buttock and thigh and states he was told that about one week prior Mr Latcham had put “a lead on his small dog and as he turned to walk, he stepped back with his left leg on to slightly uneven ground.” Dr Kumarage said he referred
[46] ARD p 99.
Mr Latcham back to the doctors at IOH who had treated him in 2014 as he does not want to be involved in a workers compensation claim. He also referred Mr Latcham for a second opinion from Dr Jaeger[46].
On 1 May 2018 Dr Al Khawaja, Brain and Spinal Surgeon, reported to Mr Latcham’s solicitors[47]. He performed the spinal surgery on 20 November 2017. He recites the following history:
“Mr Latcham presented to me with lower back pain and left leg pain; the pain was radiating to the gluteal region all the way down to his foot. Mr Latcham's problem started in February 2014 after Mr Latcham had a fall at work from two metres high and he fell on a metal bar striking the middle section of his back. Mr Latcham's friend noticed a bruise to his back and he finished his day and went home; the next morning he could not move his left leg and the pain was very severe. At that stage Mr Latcham started a work incident report and he was initially put as a work cover case.”
[47] ARD p 100.
I note that the history of a fall from two metres is not correct. The doctor does not refer to the dog incident.
Dr Al Khawaja merely advises that as Mr Latcham had no back symptoms before the February 2014 work incident he is of the opinion that the work injury has caused all of
Mr Latcham’s symptoms and his employment with the respondent is a major contributing factor to his injury.
I find that without the doctor having considered the full history his opinion on causation cannot be soundly relied upon.

Dr Bye

Dr Bye, orthopaedic surgeon, provided a medico-legal report to Mr Latcham’s solicitors dated 10 May 2016. Dr Bye has a history of the work injury in 2014 and that he was off work for two months and resumed work on the Ballina site. He says that Mr Latcham found “he was not coping well because of constant low back pain and stiffness and needed to cut down the hours at work.” Dr Bye adds the back pain and stiffness became such a disabling factor that he changed his work in September 2014 (sic) to work as a small crane operator in Wollongong. He no longer worked as a rigger. He said this was light work. Dr Bye has a history about the dog incident. He states:
“…in September 2015 when after returning from work he was walking his dog. He had to bend down to apply the dog chain and experienced excruciating low back pain radiating down the left lower limb to the dorsum of the foot and this was associated with pain radiating up into the neck. It was associated with a loud click and at the same time experienced weakness in the lower limbs.”
Dr Bye sets out Mr Latcham’s symptoms and his clinical findings and states that he regards the clinical findings were a direct consequence of the work incident of 12 February 2014 with flare-up in September 2015[48].
[48] ARD p 108.
Dr Bye recommended Mr Latcham undergo the surgery and opined this is substantially as a consequence of the work-place injury of 12 February 2014 and he notes there is no pre-existing evidence of back problem prior to this.
In a supplementary report dated 19 December 2016 Dr Bye refers to having read three pages of notes supplied by Mr Latcham and says that from Mr Latcham’s report there is continuity of back pain at the very least and some leg pain from the time of the work incident of 12 February 2014[49]. He adds the dog incident was a severe exacerbation of the back and lower limb pain and, in Dr Bye’s view, is not dissimilar from the initial event. He says that causation relates specifically to the work event on 12 February 2014. He considers the mechanism of injury is not substantially different, involving a twist injury. He opines the dog incident was not a fresh injury and there is continuously a causal relationship to the work incident of 12 February 2014[50].
[49] ARD p 110.
[50] ARD p 111.

Dr Bodel

As Dr Bye had retired Mr Latcham’s solicitors qualified Dr Bodel, orthopaedic surgeon, to provide a medico-legal report, which is dated 30 November 2018[51]. The doctor has a detailed history of the incident on 12 February 2014 and advises that Mr Latcham did not fall down three metres, but he fell heavily on to the internal curved metal structure of the beam[52].
Dr Bodel has the history that Mr Latcham developed increasing back pain and left leg pain. He sets out the treatment undertaken. He notes that Mr Latcham felt pressured to return to work. He was cleared for pre-injury duties and was sent back to the work site at Ballina.
[51] ARD p 112.
[52] ARD p113.
Dr Bodel notes that although he had a pre-injury certificate he was still in pain in the back and left leg. Dr Bodel states that Mr Latcham resigned his employment in September 2014 as he did not feel that the occupational, health and safety appropriate for the job were in place. The doctor refers to his subsequent employment in Wollongong, which he said was lighter and only involved crane driving activities on a smaller crane, and there was no rigging or dogman work.
Dr Bodel relates the dog incident and says before this Mr Latcham had ongoing pain but was coping well. He records that he was taking his dog for a walk and he simply bent down to put the leash on the dog when he felt severe back pain and severe left leg pain that was exactly similar to that at the time of the original injury.
Dr Bodel concludes there was a disc rupture caused by the work injury on 12 February 2014. He said there is a direct causal link between his medical condition and that injury. He adds “Historically he had back pain and left leg pain from the very beginning.” He adds:
“He went back to work and was eventually cleared for pre-injury duties but still had back pain and left leg pain at that time.
The subsequent event that occurred when simply bending down to put the leash on his dog caused that damaged disc to rupture externalIy and that led to the need for the surgery.
Had the original injury at work on 12 February 2014 not occurred that specific event putting the leash on the dog would not necessary have led to a disc rupture.
ClinicalIy the disc was abnormal predisposing him to that rupture with that further event.”

Dr Bodel later in his report states “the event in September 2015 is a material aggravation of the injury that occurred on 12 February 2014.” He finds the need for the L4/5 spinal fusion was the original injury.

Dr Panjratan

Dr Panjratan, orthopaedic surgeon, has supplied a report for GIO dated 7 March 2019[53]. The doctor records a history of the injury on 12 February 2014 and that Mr Latcham said on his return to work he could manage his back pain but he requested that he be taken off the larger cranes and to be given lighter duties as his back was starting to give him problems. He advised that he resigned as he was kept on larger projects. Dr Panjratan has the history that Mr Latcham’s work for Wollongong Cranes involved smaller cranes and that went well. He has a history that Mr Latcham gave up his outside activities, such as surfing. He says in the new job all he did was drive cranes and there were no physical requirements, but he still had pain. Mr Latcham told the doctor that every time he did something his back would play up, but he felt it would get better.
[53] ARD p 39.
Dr Panjratan relates the incident with the dog, with Mr Latcham advising that as he bent down to put the lead on the dog he stepped backwards on uneven ground and his back felt as though something exploded in the back, with pain shooting down his left leg. He said that the pain was similar to what he felt in 2014.
The doctor outlines the treatment undertaken by Mr Latcham including anterior and posterior spinal fusion on 20 November 2017.
Dr Panjratan answers various questions put to him and expresses the view that while
Mr Latcham sustained injury to his back on 12 February 2014 by the time of the incident with the dog, his back injury would have resolved. He says this injury was a disc prolapse at L4/5. The reason he states this injury was resolved is because in 2014 no specialised diagnostic imaging was performed and also because Mr Latcham had improved after six weeks of intensive therapy and was able to resume on normal duties. Dr Panjratan opines that the need for the spinal fusion was the 2015 injury.
Dr Panjratan re-examined Mr Latcham and provided a report dated 29 January 2021[54]. He has a detailed history of the injury on 12 February 2014, subsequent treatment and details regarding Mr Latcham’s resumption of work. The doctor notes the following:
“Before he went back to Ballina, he was on light duties. He was managing the tasks okay. They weren’t heavy tasks. He repeated that there was a lot of pressure for him to return to work due to the nature of the work he was doing. He was sort of running the job up there to a degree, he felt that maybe he could go back to work, and it would get better. However, the nature of the work was rather heavy, and his condition started deteriorating again. He ended up leaving Boom Logistics in November 2014 because he could not handle the heavy work anymore. The position of lighter work could not be offered to him.
Mr Latcham then joined Wollongong Cranes from December 2014 to September 2015. They were small cranes and not much physical work. He notified the employer of his back and the employer was quite happy to have him me in his company. He explained to the employer that he could do no dogging, no rigging, just driving cranes.
At the time he left Boom he was physically okay but found it difficult to do heavy physical work. During the time he worked for Wollongong Cranes he had no specific back issues. He claims there was a feeling of discomfort but there was no specific treatment and during this period he was doing some self-directed exercises. He was doing yoga and similar activities.”
[54] AALD p 75.
Dr Panjratan took a specific history about the dog incident, as follows:
“Mr Latcham suffered another injury on 10 September 2015, when he came home from work. On coming home from work he usually does some stretches but did not do any stretches that day but got ready to take his little dog for a walk. When he turned around to put the lead on him, he stepped back on uneven ground, and felt incredibly, excruciating, pain and the left leg went completely numb. He did not take the dog for a walk. He iced his back and took analgesics hoping his back would improve.
The next morning the pain had decreased. He went to work but when he tried to get out of the car, he could barely walk. The crane was not too far off from the car, and he managed to walk to the crane and continue working. He continued to work for the next few days, but the pain failed to improve.”

Dr Panjratan diagnosed that Mr Latcham had multilevel degenerative changes, most marked at L4/5 and anterolistheses at L4/5. He said there were also degenerative changes at L3/4. He answered various questions about causation. He opined that Mr Latcham did not have a lower back injury due to the nature and conditions of his work with the respondent from 22 April 2014 to 28 November 2014. The reason he gave for this conclusion was because
Mr Latcham continued to work in another company afterwards. However, he later at 4.3 states that he does not consider that Mr Latcham’s work with that other company, Wollongong Cranes, was a contributing factor to the lumbar spine condition because the work there was not heavy. To my mind these statements by Dr Panjratan are inconsistent.
At 4.4 of this report Dr Panjratan was asked a question about non-work-related factors and gave the following response:
“Do you consider the claimant to have any non-work related factors (including the incident on 10 September 2015) contributing to his condition? Please provide detailed reasons for your opinion.
I consider the claimant to have any non-work-related factors (including the incident on 10 September 2015) contributing to his condition?
The reasons are that he was all right till that point and his problems started thereafter.
The causation was from putting the lead on the dog, rather than from the injury with Boom Logistics.
This is an interpretation made by the Assessor on his behalf, rather than his own assessment.
There could be non-work-related factors which are not obvious.”
I do not consider that this is a very well explained opinion. Dr Panjratan in this answer seems in the first sentence to be parroting back the question. He has not considered the mechanics of the dog incident or taken into account the history given to him by Mr Latcham, that he could not do the heavier work for the respondent and that was a factor in him taking the work with Wollongong Cranes. If this history is correct, it does not mean that Mr Latcham had fully recovered from the February 2014 injury, just that he could cope if he did not put strain on his back. So, while Dr Panjratan has taken a detailed history and was referred all the documents about the matter, he has not undertaken a well-reasoned analysis in coming to his opinion.

Employer’s lay evidence

The information from the respondent regarding Mr Latcham’s duties after the injury in February 2014 is not detailed. In their email dated 20 December 2020 Mr Mike Forrest answers the question “Did the claimant request any modifications to his duties?” the reply was “Not to my knowledge”. It was noted his personnel file was unable to be located[55].
[55] AALD p 73.
Mr Forrest is the NSW HSEQ Manager and so it is not clear what day to day knowledge he would have had of Mr Latcham’s work.
A statement has been given by Mr Stewart Lawson dated 27 September 2016[56]. At the time of making the statement Mr Lawson had been the business manager for two and half years. At [37] he says following the injury on 12 February 2014 Mr Latcham went through the rehabilitation process and returned to work fit for pre-injury duties on 22 April 2014. He then says that he worked normal duties for about eight months. Mr Lawson advises that
[56] Reply p17.
Mr Latcham took up a voluntary redundancy offer, that had been offered to a number of employees as the company had financial problems. At [44] he states that Mr Latcham told him that he was taking up a position with Wollongong Cranes as they were offering him work on small cranes.
At [42] Mr Lawson says:
“At no time had he been complaining about his back since he returned to work to my
knowledge. I have asked him how he was and he just spoke about his personal health issues but there was no mention of his back.”
Mr Lawson says he feels this claim is a bogus claim, but I do not place weight on that assertion as he does not give any explanation for such a serious assertion. There is clear evidence the original work injury occurred on 12 February 2014 and Mr Lawson does not refer to any first-hand knowledge of Mr Latcham’s work performance from the time of that injury until he left the employ of the respondent. He adds that he is aware of Mr Latcham surfing and riding standup paddle board but gives no time frame for this nor whether it is a first-hand account. In any event, I have noted in April 2014 that the doctor has recorded that when Mr Latcham tried standup paddle boarding he experienced back pain.

Mr Latcham’s submissions

It was submitted that there is no dispute that Mr Latcham had an injury on 12 February 2014 at work. The dispute relates to the nature and conditions of his work from 22 April 2014 to 28 November 2014 and whether this work was causative of injury. Also, Mr Latcham argues that the September 2015 dog event was not causative of an injury but results from the original workplace injury. It was submitted that the pathology has always been from L4/5, from the original frank injury, and this was the site of the spinal fusion surgery.
Mr Latcham’s counsel submitted that he had suffered a single injury at L4/5. It is argued that there is an underlying degenerative condition and so this is a section 4(b)(ii) aggravation type injury case. It is argued that every insult to Mr Latcham’s L4/5 in the course of his employment is an aggravation of his lumbar condition. Therefore, it is argued that it sets him up so that he is vulnerable to the otherwise trivial event in 2015 when walking his dog.
Counsel referred to Mr Latcham’s statements which refer to the details of the 2014 injury. He submits it was such a traumatic event that the Commission cannot accept the respondent’s submission that the injury resolved. It was argued that a certification of fitness for pre-injury duties does not mean the injury has completely resolved or that the pathology no longer exists. It was submitted that Mr Latcham was susceptible because of this injury to further symptoms. Counsel referred to Mr Latcham’s statement where he says after about three days back at work his back felt weak and he needs to be strong to do the job.

It is noted that Mr Latcham says he was working with a new crew including with Mr Jewitt, who has given a statement supporting Mr Latcham. In the period in question in relation to the nature and conditions claim, Mr Latcham says his back was not right and he told his work mates that he could not handle the big cranes as his back was killing him.
Counsel also drew attention to Mr Latcham’s evidence that the reason he stopped work was because of his injury and that he refers to it as a single injury. It is noted that Mr Latcham refers to the dog incident.
Mr Latcham’s counsel submits that Mr Lawson’s statement is not that relevant. However, he submits Mr Latcham rebuts Mr Lawson’s comments about why he resigned his employment. He says that Mr Lawson knew he was going to work on smaller cranes after he left the respondent. Counsel submitted that the work on the smaller cranes was not heavy work and the only aggravation was caused by the heavy work with the respondent.
Counsel also drew attention to Mr Latcham’s evidence about his return to work. It was also submitted that Mr Latcham stated in his supplementary statement that he told Mr Luke Jewitt that he was having problems with his back and when the job they were working on was finished he was going to request he be not given any more such work. Mr Latcham says
[57] ARD p 14.
Mr Jewitt said they should share the crane driving of the 450 tonne crane. Counsel noted that during a lift of one of the beams the wind turned, and Mr Latcham struggled to hold the tag line. Counsel referred to Mr Latcham’s account that Mr Jewitt saw he was having trouble and Mr Latcham says he told Mr Jewitt that he was having back pain. For the next three days Mr Latcham says his back was stiff and sore. He says he did not report this as he felt he was a bit green doing heavy work. Counsel also refers to Mr Latcham saying his back would lock up doing heavy work and he was critical of the method used by Lend Lease not using plywood. He said they had to tie rope tags and use all our strength to keep the lifting gear away from hitting the cell wall to avoid structural damage to the girder. Mr Latcham said he told Luke Jewitt that his back was getting worse and he would have to get off working on heavy cranes. He says Mr Jewitt states that he told Mr Lawson that Mr Latcham’s back was a problem. Counsel submitted that despite this statement being in the ARD there is nothing from Mr Lawson to rebut this assertion. It was submitted that there are at least two clear examples of tasks that aggravated his back[57], being when the girder was blown in the wind and the no plywood incidents.
Counsel submitted that Mr Latcham’s account of the weights with which he had to work, such as with the chains, are not disputed. So, it is submitted there are clear examples of what he did day to day involving weights, climbing and lifting. It was submitted that it was his difficulties with this type of work that led him to cease work.

Mr Latcham’s counsel referred to the statement from Mr Sergi, from Wollongong Cranes.
Mr Sergi says he asked Mr Latcham why he was looking for work earning less money and
Mr Latcham informed him that he had an injury in February 2014 and that he only had problems doing heavy work, so he was happy to take a cut in wages and work on smaller cranes.
Counsel submitted that this all pre-dated the dog incident. It was submitted that this evidence is corroboration that Mr Latcham had problems leading to him changing employment. It was noted that Wollongong Cranes gave him work on smaller cranes and involving driving cranes.
Attention was drawn to Mr Jewitt’s statement. Counsel submits that Mr Jewitt confirms there was recurrence of Mr Latcham’s injury and that he referred to the incident when the breeze caught the girder turning it. Mr Jewitt says that he saw Mr Latcham was overexerted and in pain trying to hold the tag line. Mr Jewitt says that could see he was in a lot of discomfort and he asked Mr Latcham was he alright and he responded it was problem because he had not done hard work for a while. Counsel submitted that it is clear from this exchange that
Mr Latcham thought his pain would settle down. Reference was made to Mr Jewitt’s further comment that he could see thereafter that Mr Latcham was struggling. It was submitted this was due to the day to day heavy work. It was also submitted that the plywood incident is referred to in Mr Jewitt’s statement. Mr Jewitt confirmed that Mr Latcham told him he could no longer handle working on big cranes due to his back and he would need to be replaced. Mr Jewitt said he told Mr Lawson of this and Mr Latcham was replaced by Clayton Lowe for the next job. Mr Jewitt confirms that he told him he was going to resign because his back was not going to get better working on big cranes.
Counsel submitted that Mr Jewitt’s evidence supports the nature and conditions claim.
The account on the notification form relating to the aggravation of Mr Latcham’s back by the dog incident was recited, in which Mr Latcham referred to the area of his back having become noticeably tight and sore, when stepping back on uneven ground.
Counsel submitted the x-ray performed in 2014 showed degenerative change at L4/5. Counsel submitted that even though the injections and MRI scan were taken after the dog incident, it is evident the injections to the lumbar spine were also to the L4/5 region.
It was submitted that Dr Cherukuri’s history is brief but nonetheless it is an accurate account about Mr Latcham not being able to continue to work with large cranes. It was submitted that even though the doctor does not refer specifically to the dog incident, he does refer to a worsening of his condition, which it was submitted was consistent with that incident. Counsel submitted that the dog incident was innocuous. It was noted that Dr Cherukuri in his medico-legal report did confirm his opinion.
Counsel addressed Dr Al Khawaja’s report and conceded that he only refers to the February 2014 injury and does not mention the dog incident but is was argued this is not fatal to
Mr Latcham’s case. It was submitted that Dr Bye relates a more detailed history. For instance, Dr Bye advised that Mr Latcham “was not coping well because of constant low back pain and stiffness and needed to cut down the hours at work.” Dr Bye adds the back pain and stiffness became such a disabling factor that he changed his work in September 2014 to work as a small crane operator in Wollongong. It was argued that if you accept
Mr Latcham’s evidence and that of Mr Jewitt then these passages from Dr Bye’s report can be seen to be consistent with Mr Latcham’s case.
Counsel submitted that Dr Bye has a history of the initial injury, the nature and conditions of work and the dog incident. Attention was drawn to the supplementary report of Dr Bye, where he acknowledges that he confirms reading Mr Latcham’s account of the dog incident and says that there was continuity of back pain from February 2014. Dr Bye is of the opinion that the back and leg pain from the dog incident was similar to that after the February 2014. Counsel submitted that while Dr Bye does not directly refer to the nature and conditions of employment, he had noted that the back and leg pain had persisted from the time of the original incident and had not gone away, and counsel argues the reason for that was the ongoing performing of heavy work, as described by Mr Latcham. Counsel relies on the opinion of Dr Bye that the dog incident did not cause a separate injury.
It was submitted that Dr Bodel does not get a very clear picture but he does refer to
Mr Latcham being sent back to the job site in Ballina and the doctor noted that even though Mr Latcham had a fit for pre-injury duty certificate he still had back pain. Counsel conceded that Dr Bodel’s history was not as extensive as the account of Mr Latcham and Mr Jewitt but submitted that Dr Bodel does refer to occupational health and safety concerns and this is probably a reference to the plywood incident.
It was submitted that under heading three, Dr Bodel gives his opinion on causation that there is a direct causal relationship with the injury in February 2014. He notes that Mr Latcham had back and left leg pain at the time he returned to work. It was submitted that Dr Bodel has a history of the dog incident and at the time he bent down in the dog incident there was an external rupture to the L4/5 disc that was already damaged from the workplace frank injury and the effects of the nature and conditions claim from Mr Latcham continuing to perform heavy work for the respondent.
Counsel read out the clinical entry of Dr Kumarage on 19 September 2015 fell onto small hole when walking dog. Counsel submitted that there was nothing to suggest this was out of the ordinary, counsel characterised this as a trivial event.
The submissions in relation to Dr Panjratan were that in his first report the doctor has a history of the injury in February 2014 but he does note Mr Latcham had problems on his return to work and had requested he be taken off larger cranes. It was submitted that this is a consistent history to that given by Mr Latcham. However, counsel submitted that
Dr Panjratan does not deal with this in his conclusion. Counsel notes that Dr Panjratan accepts there was a lumbar spine injury on 12 February 2014. However, counsel submits that Dr Panjratan in his opinion does not explain his view why the pathology would have resolved with the return to work. He submits that the doctor does not at this point take into account Mr Latcham’s history that he continued to have back pain at work.
Counsel referred to Dr Panjratan’s second report and the history that Mr Latcham was also relying on a nature and conditions claim. It was submitted that Dr Panjratan took a history that Mr Latcham could not handle the heavy work with the respondent so obtained another job. However, counsel submitted that the doctor did not consider the heavy work he did with the respondent, and the incident when the beam blew in the wind and the plywood incident. It was also submitted that Dr Panjratan’s explanation is reed thin because he does not take into account these factors or that his subsequent employment was light as it was on smaller cranes which he drove and did not do the dogman work, even though he had mentioned that the subsequent work was driving lighter cranes.
Counsel relied on Kooragang Cement Pty Ltd v Bates[58] and submitted the Commission should find there was an aggravation of the frank injury and underlying degenerative condition at L4/5 as a result of the nature and conditions of Mr Latcham’s employment with the respondent. He argued that it should be accepted that the nature and conditions injury was a relevant material aggravation of that underlying condition and it bridges the gap between the original injury and the dog incident.

[58] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796, Kooragang.

Respondent’s submissions

The respondent’s counsel gave an oral overview of his case at the outset of the Arbitration Hearing. He confirmed that “injury” on 12 February 2014 is not in issue, but the respondent disputes that any of Mr Latcham’s symptoms are related to that injury. While none of the individual items of the medical treatment are disputed as being reasonably necessary, the entirety of the claim is disputed because the respondent’s case is that all of this treatment was not as a result of the work injury. The respondent submits that in September 2015 when Mr Latcham was walking his dog and fell into a hole, he sustained a back injury that is unconnected with his 2014 work related injury. If there is a need for medical treatment it is due to this injury.
The respondent noted in recent times Mr Latcham has expanded his claim by pleading nature and conditions of employment and this alleged injury is disputed.
He then made written submissions, which as they are brief, I have reproduced the same below:

“2. The respondent concedes that on 12 February 2014 the applicant sustained a compensable injury. However, the respondent says that the effects of that injury have ceased. This is relevant to weekly compensation but that is presently discontinued. It remains relevant to s.60 compensation, the award of which is generally opposed. The respondent also says that any need for treatment is the result of an unrelated novus actus in the form of falling in a hole whilst walking a dog in or around early September 2015. Any suggestion of a nature and conditions injury is also refuted.
3. If the Commission considers that the effects of the conceded injury have ceased then based on the amendments to s.65 of the 1987 Act, an arbitrator may form the view that no AMS is required to determine WPI. In the alternative, the respondent says that if the matter is referred to an AMS then this should be clearly limited to the frank injury with a direction that the AMS make deductions according to his or her own clinical judgment referable to the liability findings which are to be made.

4. The worker carries the onus. That onus will not be discharged, even if a plaintiff (or, here an applicant) has a more probable case than the defendant, rather there must be actual persuasion. See Jackson v Lithgow City Council [2008] NSWCA 312 at [9]-[10] per Allsop P. There should be no actual persuasion in a case such as this, where there is substantial recovery from the accident, and a subsequent accident thereafter.

5. The respondent’s declinature relies upon the evidence of, chiefly, Dr Panjratan. His first report (dated 7 March 2019) is at ARD 39. In that report, the doctor clearly sets out the work injury (and there is only one such compensable injury) occurring on 12 February 2014. He sets out the circumstances of that injury, which are not controversial. Within six weeks the worker had returned to normal duties. He only required conservative treatment. True it is that he had a discectomy and spinal fusion (but as emerges in other evidence this is unrelated to the 2014 accident).
6. The applicant was walking his dog on 10 September 2015. Dr Panjaratan’s opinion regarding this novus actus is compelling. The worker had resolved symptomatically from the accepted injury within 6 weeks. The following year, he fell into a hole walking the dog. As the doctor says; there is “no link” between this injury and employment. A worker who had substantially if not totally resolved symptomatically within 6 weeks of a frank injury would hardly need a fusion in the following year. The work injury had been successfully treated conservatively and this is confirmed by the GP certifying that he could work from a very early stage.
7. After the worker expanded his claim to include “nature and conditions” (a phrase not without criticism in workers compensation jurisprudence), Dr Panjratan considered the new case theory in his report dated 29 January 2021 (in the respondent’s late documents). Logically, if this was an ongoing course of causation, the worker would not have taken up new (and very similar even if slightly easier) employment immediately after leaving the employ of the respondent. This logic takes on medical force in the form of the doctor’s opinion at point 4.1 regarding causation when he notes the chronology of events in this respect. Dr Panjratan has not ignored the heavy nature of the work (it is detailed elsewhere in the report), but one cannot simply say that the existence of heavy work by necessary extension means there is a nature and conditions injury (especially where there is a clear frank injury).
8. There is in this case a marriage of common sense (in the sense of Kooragang Cement Pty. Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796) and medical opinion in the form of Dr Panjratan’s evidence.
9. Dr Panjratan’s evidence (on a Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 basis) is well supported by the underlying material. This includes the fact that the applicant took a voluntary redundancy (which he himself evidences in his statement material see ARD p6, para 4). The applicant’s statement at ARD p11 confirms that the applicant was struggling due to “my back injury”. He was not struggling because of the overall nature of the work itself. The use of phraseology elsewhere in the statement material of “nature and conditions” clearly is not the worker’s own words. The statement of Mr Sergi (the subsequent employer); ARD p 16, is hardly in a position to comment on any aspect, factually, of injury occurring within the course of the applicant’s employment with the respondent.
10. The notification of injury form (ARD p 18) is consistent with a single date of injury. The Recurrence Form (ARD p 21) must, definitionally, relate to the index injury otherwise what, rhetorically, has recurred? The Work Cover certificates also support a single date (eg ARD p60).
11. That there was a novus actus is also established from the clinical material. For example, at ARD p89, there is a letter from a treating practitioner saying that “LBP” (which is submitted to mean low back pain) has been radiating to left leg “since middle of September 2015 following jarring his back”. The only jarring of the back in 2015 was whilst walking the dog. The report of Dr Kumarage dated 9 November 2015 (shortly after the dog incident) (ARD p 92) confirms that the worker consulted with the doctor at that time (ie 19 September 2015) with low back pain and numbness and weakness in the left leg.
12. In terms of the applicant’s expert medical evidence the report of Dr Bye, 11 May 2016 (ARD p 103) does not support a nature and conditions injury. Absent support of that kind, one simply reverts to causation arising from the accepted injury only. After the novus actus occurred, Dr Bye provided further comment in a report dated 19 December 2016 (ARD p 110). His opinion that there was an exacerbation has to be rejected because there were no symptoms to exacerbate. In the alternative, the main contributing factor for an exacerbation has to be excluded because the main contributing factor was the stumbling whilst walking the dog which was all that occurred that day and which jarred the back. The comment that “the mechanism of the injury” is not substantially different (point 3) is nonsensical. The mechanism of injury was completely different on the facts of each event.

13. Due to Dr Bye’s retirement, the worker has a further IME in the form of Dr Bodel (report dated 30 November 2018 at ARD p112). In evaluating the probability of any particular case theory, a dittography of opinion between two IMEs does not make the opinion of either of them more persuasive. Rather, each opinion needs to be scrutinised as to its objectivity, including by reference to the clinical material (cited in part above). In any event, Dr Bodel correctly notes that the worker “suffered an injury while at work on 12 February 2014” and that he was “cleared for pre-injury duties” thereafter. Indeed, the introductory section of his report (first page) refers to a single date of injury only. Although he draws a link between that incident and the dog incident, he does not appear to support the nature and conditions claim either.
Terms of AMS referral (if any)
14. In the dog walking incident, a disc was ruptured. That is not the same pathology as occurred previously. Therefore, this cannot be aggregated in an AMS referral and, if it is compensable, it is compensable as a separately assessable injury; Woolworths Ltd v Wagg [2017] NSWWCCPD 1.
15. If there is to be an AMS referral, it should correctly guide the AMS not to include in the assessment any aspect of the matter in which liability has been resolved in the respondent’s favour.”

Mr Latcham’s submissions in reply

Mr Latcham’s counsel supplied the following written submissions in reply:
“1.     In short, the respondent submits the dog-walking incident in September 2015 was an unrelated novus actus. The respondent's declinature of liability rests entirely on the medico-legal reports of Dr V Panjratan dated 7 March 2019 and 29 January 2021.
2.      With respect, Dr Panjratan based his opinion on incorrect assumptions and failed to provide coherent explanations to support his conclusion of a "new injury" caused by the dog-walking incident: Makita (Australia) Pty Ltd v. Sprowles [2001] NSWCA 305.
Incorrect Assumption 1- Complete Recovery from the February 2014 frank incident
3.      Dr Panjratan assumed the applicant completely recovered from the undisputed February 2014 frank incident as a medical certificate dated 22 April 2017 certified him fit for pre-injury duties.
4.      The undisputed frank injury was a traumatic event causing pathology at L4/5 as noted in the x-ray taken on 14 February 2014 [ARD page 59].
5.      The medical certificate dated 22 April 2017 did not mean that the pathology had resolved. On the contrary, the applicant's statements set out in detail the motivation for him to return to work notwithstanding his ongoing symptoms at L4/5.
6.      Whilst conservative treatment by the applicant's GP allowed him to return to work, the pathology and symptoms at L4/5 persisted and did not magically disappear as Dr Panjratan incorrectly assumed.
Incorrect Assumption 2 - "Nature and conditions" was not a separate injurious event
7.      The applicant's undated statement and the statement dated 17 September 2018 [ARD pages 12 and 13] provide details of his daily heavy and repetitive manual duties working up to 17 hours per day. Moreover, the applicant provided two examples of heavy and repetitive work causing severe aggravation of symptoms corroborated by Mr Jewitt's statement [ARD page 17].
8.      The respondent does not dispute the manual duties performed by the applicant from 22 April 2014 to 28 November 2014 were heavy and repetitive.
9.      The applicant maintained that he resigned from his employment due to a severe aggravation of his lumbar symptoms. The post injury employer, Mr Sergi confirmed that the applicant disclosed the reason for ceasing work with Boom was the lumbar injury and his desire to work on smaller and lighter cranes to avoid aggravation of his symptoms [ARD page 16).
10.    Accordingly, the applicant sustained a "single injury" at L4/5 caused by "separate injurious events" in February 2014 and further aggravated by the "nature and conditions" of employment from 22 April 2014 to 28 November 2014.
Incorrect Assumption 3 - "New injury" dog-walking in September 2015
11.    The dog-walking incident in September 2015 was a trivial event but it significantly aggravated the applicant's vulnerable and already damaged L4/5 disc. Drs Bye and BodeI recorded a consistent history of the material aggravation of symptoms due to the "nature and conditions" of employment and found that the dog-walking incident was not a new injury. Rather, Dr Bodel found:
"The subsequent event that occurred when simply bending down to put the leash on his dog caused that damaged disc to rupture externally and that led to the need for the surgery." [ARD page 117).
12.    In contrast, Dr Panjratan in his second report dated 29 January 2021 attributed the need for surgery entirely to a "new injury" caused by dog-walking. However, the doctor failed to explain why he reached that conclusion when he recorded a history of heavy and repetitive duties from April to November 2014 causing the applicant to resign and find lighter employment.
13.    The opinion of Dr Panjratan is confusing and contradictory.
14.    On the one hand, Dr Panjratan stated the "nature and conditions" of employment did not cause injury as the applicant continued working with another company afterwards [Respondent's AALD page 81).
15.    On the other hand, Dr Panjratan then found that the subsequent employment with Wollongong Cranes was not a contributing factor to the lumbar spine condition as it" was not as heavy" [Respondent's AALD page 82).
16.    There was simply no coherent explanation provided by Dr Panjratan to support his conclusion of a "new injury'' caused by the dog-walking incident: Makita v. Sprowles.
17.    Adopting a common sense approach to causation supported by Dr Bodel, the frank incident and "nature and conditions" of employment rendered the applicant's L4/5 disc vulnerable to the trivial episode of walking the dog in September 2015. As such, the ruptured L4/5 disc in September 2015 resulted from employment: Kooragang Cement Pty Ltd v. Bates (1994) 35 NSWLR 452.
Terms of AMS Referral
18.    If the Commission accepts that the applicant sustained a "single injury" caused by "separate injurious events" as pleaded, the AMS referral should permit the aggregation of WPI for the same pathology at L4/5.
19.    If the Commission is not satisfied that the applicant sustained a "nature and conditions" - style injurious event then the referral should only be in respect of the undisputed February 2014 frank incident.”
20.    With respect, there should not be a direction for the AMS to make a deduction even if Dr Panjratan's opinion of a "new injury" is accepted. Sec. 323 only relates to a deduction for pre-existing impairment and cannot be made for an alleged "new injury".
21.    Even if the Commission does not find that the applicant sustained a "nature and conditions" - style injurious event, the pathology at L4/5 caused by the frank injury persisted and was vulnerable to the trivial episode of walking the dog in September 2015.

Determination

The first issue to determine is whether the effects of the injury on 12 February 2014 have ceased.
It is not disputed that Mr Latcham sustained injury to his lumbar spine in that incident. The physiotherapist a short time after the injury recorded that Mr Latcham had swelling over the low back, bruising and an abrasion over L3. X-rays taken after the incident revealed degenerative changes in Mr Latcham’s lumbar spine including at L4/5 in the facet joints. In the weeks following the injury there are medical records noting Mr Latcham was experiencing lumbar pain and his back was locking up. The doctors at IOH placed restrictions on his employment in relation to his capacity to lift/carry, bend, twist and squat. These restrictions were gradually increased until 22 April 2014 when Dr Jones from IOH issued a fit for pre-injury duties certificate and he issued a final certificate on 29 April 2014, with the management plan indicating Mr Latcham was to do home exercises.
There is no evidence of further medical consultations before the Commission until after the dog incident in September 2015.
However, Mr Latcham has provided evidence in his statements about the state of his lumbar spine in the intervening period. The determination of whether the effects of the injury on 12 February 2014 had ceased largely depends on whether Mr Latcham’s evidence is accepted. He was not cross examined. His evidence, that he continued to experience back symptoms, is supported by a statement from a co-worker, Mr Jewitt, and Mr Sergi, his subsequent employer.
As counsel submitted, and I find, Mr Jewitt corroborates that the work performed by
Mr Latcham from his return to normal duties in April 2014 until his cessation of work in November 2014 did involve heavy work. In particular, he relates Mr Latcham complaining about back pain with the wind blowing the girder incident and the work for Lend Lease not using plywood. Mr Jewitt also provides evidence that Mr Latcham was replaced by Clayton Lowe for the next job because Mr Latcham said he could no longer handle work on big cranes.
Mr Sergi, I find, also provides corroboration because he says Mr Latcham told him that his work for the respondent on big cranes resulted in his back being stiff and sore and that he had pain in his left leg when working with heavy gear. Mr Sergi confirms the work that
Mr Latcham subsequently performed for his company was driving smaller cranes.
In a case where there is no medical evidence in this period, these statements are important because they provide support for Mr Latcham’s evidence in his statements. I find this is particularly so because I could not find any reference to leg pain in the medical evidence before Mr Latcham’s resumption of work.
Mr Lawson does not address the assertion that Mr Jewitt told him to replace Mr Latcham with Mr Clayton, however, he does refer to being told by Mr Latcham that he was leaving and going to work on smaller cranes.
In relation to the onus of proof in Nguyen v Cosmopolitan Homes (NSW) Pty Limited[59] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[59] [2008] NSWCA 246.
Applying Nguyen, I am satisfied on the balance of probabilities that Mr Latcham had not recovered from the effects of the work related injury on 12 February 2014 because the above lay evidence supports his contention that when he performed heavy work he still suffered back pain and leg pain.
The next issue to determine is whether the evidence establishes that Mr Latcham suffered an injury under section 4(b)(ii) of the 1987 Act as a result of the work he performed on his return to work in April 2014 to his resignation in November 2014. His submissions are that he did suffer such an injury and it was an aggravation of the injury on 12 February 2014 and an aggravation of the underlying degenerative changes.
This is perhaps a somewhat fine distinction given I have found that he had ongoing effects in this period from the 12 February 2014 injury. To come within section 4(b)(ii) the employment has to be the main contributing factor to the aggravation of the disease. As noted, there is no contemporaneous medical evidence in this period to assist with such a determination. All the medical evidence is after Mr Latcham returned to pre-injury duties with the respondent and also after the dog incident.
The x-ray taken on 14 February 2014 revealed some degenerative change at the L4/5 and L5/S1 facet joints. The treatment after the dog incident included CT guided left L4/5 facet joint injections on 15 and 22 October 2015. Mr Latcham’s counsel’s argument that the dog incident was not a novus actus is based on the fact that the same area of the lumbar spine was treated and is based on the premise that what happened in the dog incident was “trivial” or “innocuous”.
The legal test of causation is that discussed by the Court of Appeal in Kooragang wherein Kirby P (as his Honour then was) said (at 461G) (Sheller and Powell JJA agreeing) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. After referring to earlier English authorities, his Honour added (at 462E):
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
His Honour said at [463]- [464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
The respondent argues that the dog incident was a novus actus. However, I am not convinced that the chain of causation with the work injury has been so attenuated, or snapped, to use the words of Kooragang.
My reasons for coming to this conclusion are, firstly, a consideration of what was factually involved in the dog incident and, secondly, my acceptance of Dr Bye’s opinion.
The accounts of what happened in the dog incident are as follows:
(a)    Dr Kumarage entry on 19 September 2015 “fell on to a small hole while walking the dog 1/52” and complaints of back pain radiating to left buttock and thigh[60]. And in the Coverforce statement he referred to “jarring of his lower back following a fall into a small hole”[61].
[60] ARD p 121.
[61] Reply p332.
(b)    However, Dr Kumarage in report dated 6 February 2017 has the following account Mr Latcham had put “a lead on his small dog and as he turned to walk, he stepped back with his left leg on to slightly uneven ground”[62].
[62] ARD p 98.
(c)    Mr Latcham’s recurrence of injury form dated 29 October 2015[63] in which he states:
[63] ARD p 21.
“Since July 2014 the area has become notably tight and sore in normal duties but has stayed manageable since then. Stepping back on uneven ground (slight), has brought the area of past injury back to same levels of restrictions and pain”.
(d)    Mr Latcham’s statement of 4 July 2016 at [20] states:

“In September 20151 was at home. I had decided to take the dog for a
walk. When I bent down to put the lead on, all of a sudden felt pain in my
back. I had pain running down my left leg. I tried to walk a little bit but the
pain was so bad.”

(e) In Mr Latcham’s undated statement he says:
“On the afternoon of 10th of September 2015 I proceeded to go for a walk with my small dog, I bent down to put the lead on the dog, as I straightened to turn and walk I put my left foot back on what only can be described as slight uneven ground . I experienced pain in my back and hip, my left leg went painfulIy numb, I tried to walk a little as this had happened before (related to my injury in feb 13). I had been able to walk or stretch the (lock) up out, it was not the case this time…[64]”
[64] ARD p 15.

(f) Dr Bye’s history in his report dated 10 May 2016 is:
“…in September 2015 when after returning from work he was walking his dog. He had to bend down to apply the dog chain and experienced excruciating low back pain radiating down the left lower limb to the dorsum of the foot and this was associated with pain radiating up into the neck. It was associated with a loud click and at the same time experienced weakness in the lower limbs.”

(g) Dr Bodel in report dated 30 November 2018 states:
“He was taking his dog for a walk and he simply bent down to put the leash on the dog when he felt severe back pain and severe left leg pain. This was exactly similar to the pain that he had at the time of the original injury.[65]”
[65] ARD p114.

(h) Dr Panjratan’s history in report dated 7 March 2019[66] is as follows:
[66] ARD p 41.
“He said as he bent down and put the lead on the dog and stepped backwards on uneven ground his back felt as though something exploded in the back with the pain shooting down the left leg. He was almost nauseous from the pain which was similar to what he felt when he fell in 2014.”

(i) In Dr Panjratan’s report dated 29 January 2021 he states:

“Mr Latcham suffered another injury on 10 September 2015, when he came home from work. On coming home from work he usually does some stretches but did not do any stretches that day but got ready to take his little dog for a walk. When he turned around to put the lead on him, he stepped back on uneven ground, and felt incredibly, excruciating, pain and the left leg went completely numb. He did not take the dog for a walk. He iced his back and took analgesics hoping his back would improve.”

As can be seen there are slight variations in the history. I find it is unlikely on the balance of probabilities that Mr Latcham “fell” or “stepped on to a hole”. Dr Kumarage in his report does not say this and gives a version that is consistent with the other histories, that Mr Latcham put the lead on his dog and in so doing stepped back on slightly uneven ground. I consider this version should be preferred to that of the brief clinical entry on 19 September 2015 or the Coverforce statement. Dr Cherukuri refers to a minor incident without giving specifics. But he does find that the disc protrusion at L4/5 could have certainly been as a result of the work-related injury as he states, “It is common for the initial injury to be aggravated by subsequent minor manoeuvres.”
Even though Dr Cherukuri does not refer in specifics to the dog incident, it is clear his attention was directed to it in the question posed to him and, so, I find it is a reasonable assumption that this is what he was referring to with his comment about a minor incident.
Mr Latcham’s counsel has referred to the incident as trivial. I accept this characterisation in the sense that the physical action did not involve major traumatic forces. I find there was some bending involved and Dr Bye considers it was a twisting type incident. That is consistent with an unremarkable type of occurrence when compared to the forces involved in the original injury.
I have accepted Dr Bye’s opinion as I find it is consistent with the opinion of Dr Cherukuri and they are the first two specialists to have examined Mr Latcham following this incident.
I do not accept the respondent’s submission that Mr Latcham “fell into a hole” as this is not consistent with the history recorded by their Dr Panjratan and I am not convinced that factually Mr Latcham fell, as this is not consistent with his early version on the recurrence form and as I have noted Dr Kumarage when writing his report did not give this history.
I do not accept the opinion of Dr Panjratan because I find he has inconsistencies in his report that lead me to have a lack of confidence in his reasoning process. For instance, he does not find the nature of the work performed after the return to work for the respondent caused injury because he says Mr Latcham was able to go and do other work. Then when he discusses that other work with Wollongong Cranes, he says the work there was not heavy.
Also, his answer at 4.4 in his second report in the first sentence just parrots the question to the extent of including the question mark, but more importantly he then bases his reasoning on the premise that Mr Latcham was “all right” on his return to work for the respondent. This does not accord with the factual finding I have made.
I accept Mr Latcham’s submission that a fit for pre-injury duties certificate does not necessarily equate to a recovery from the injury.
While I have doubts that there should be a finding of a nature and conditions injury, I have found that the effects of the original injury did not cease. I accept that when Mr Latcham did heavy work, he experienced flare up of his back pain, as he told Mr Sergi and as was witnessed by Mr Jewitt.
Dr Bye was of the view that the dog incident involved similar twisting to that which occurred in the original injury, and he considers the dog incident was not a fresh injury. Dr Bye does not state that there was a separate nature and conditions injury. I consider it is unnecessary for Mr Latcham to plead a nature and conditions injury and the preferable view and finding is that the original injury did not resolve. This view is consistent with Dr Bodel’s opinion.
In Albany City Council v Gunton[67] it was stated that:

“It does not follow that every worker with a pre-existing injury who carries out work and suffers pain would have an aggravation of his injury”.

[67] [2011] NSWWCCPD 68, Gunton.

Deputy President Roche in Gunton when making this statement was quoting from the observations of Evatt and Sheppard JJ in Commonwealth of Australia v Beattie[68] However, as Roche DP goes on to state at [162] in Gunton: “Each case must depend on its own facts. The symptoms Mr Gunton experienced while doing light part-time work with Mr Harvey were more compatible with a revelation of an existing problem in his back than the genesis of any greater problem (Middleton v Bergin Transport Pty Ltd, Burke CCJ, unreported, Compensation Court of NSW, 19 June 2001).”
[68] [1981] FCA 88; (1981) 35 ALR 369, Beattie at [378].
I have found the effects of the injury to Mr Latcham’s lumbar spine on 12 February 2014 had not ceased and, the symptoms he experienced from April to November 2014 when performing heavy work for the respondent, I find were more compatible with a continuation of, and revelation of, the injury he sustained on 12 February 2014. I have no convincing evidence that a new injury had been sustained because of this work.
Mr Latcham is entitled to have his lump sum claim referred to a Medical Assessor to assess his permanent impairment. I do not agree with the respondent’s submission that I should make directions to the Medical Assessor in relation to how s/he should assess Mr Latcham. I agree with Mr Latcham’s submission that section 323 of the 1998 Act applies to prior injuries and conditions, and not to subsequent events.
However, there is one further matter that requires determination and that is the claim for treatment expenses pursuant to section 60 of the 1987 Act. The respondent has submitted that any need for treatment relates to the novus actus with the dog incident. I have found it was not a novus actus, as I have accepted the submission that it was a trivial event, albeit aggravating his injured back. As in Gunton I find it produced a revelation of symptoms rather than a new, fresh injury, accepting as I have the opinions of Drs Cherukuri and Bye, supported by Dr Bodel.
In terms of whether claimed treatment expenses are reasonably necessary as a result of the work-related injury, the legal test to apply is that set out in Murphy v Allity Management Services Pty Ltd[69], whether there has been a material contribution to the need for the treatment by the injury. Murphy is authority for the proposition that a condition can have multiple causes and the work injury does not have to be the only, or even a substantial cause, before the treatment is recoverable under section 60 of the 1987 Act. Deputy President Roche stated in Murphy that a worker only has to establish that the treatment is reasonably necessary as a result of the injury; that is, did the work-injury materially contribute to the need for surgery. I find that the work injury on 12 February 2014 did materially contribute to the need for the treatment including the surgery.
[69] [2015] NSWWCCPD 49, Murphy.
Accordingly, pursuant to section 60 of the 1987 Act I order that the respondent is to pay the treatment expenses upon production of account, receipts and/or Medicare Notice of Charge.
I find that the effects of the work-related injury to the applicant’s lumbar spine on 12 February 2014 have not ceased.
I order that the lump sum compensation claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows:
(a) Date of injury: 12 February 2014
(b) Body parts: Lumbar spine

The documents to be referred to the Medical Assessor are to include those attached to the ARD, Reply and Application to Admit Late Documents dated 29 January 2021 and a copy of this Certificate of Determination/Statement of Reasons.
I also make an award for the respondent in relation to the allegation of injury as a result of nature and conditions of employment.

Josephine Bamber
PRINCIPAL MEMBER

6 April 2021