Lee v Transport for NSW

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lee v Transport for NSW [2022] NSWPIC 28
APPLICANT:	Troy Lee
RESPONDENT:	Transport for NSW
MEMBER:	Rachel Homan
DATE OF DECISION:	21 January 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation in respect of accepted lumbar injury; applicant initially continued to work in full-time suitable duties before being certified fit for pre-injury duties; change in employment and subsequent cessation of work; whether current incapacity causally related to accepted injury; effect of psychological symptoms; inconsistent evidence of incapacity during part of claim; Held- applicant had no current work capacity during part of claim to date and continuing; award for respondent in respect of claim for weekly compensation during part of the period; awards for the applicant pursuant to sections 36(1) and 37(1) of the 1987 Act during the remainder of the period claimed.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant had no current work capacity as a result of the injury on 28 February 2018 from 20 August 2020 to date. 2. The Commission is not satisfied that the applicant was totally or partially incapacitated for work as a result of the injury on 28 February 2018 during the period 27 March 2020 to 19 August 2020. The Commission orders: 1. The respondent to pay the applicant weekly compensation pursuant to ss 36(1) and 37(1) of the Workers Compensation Act 1987 from 20 August 2020 to date, and continuing, based on the agreed pre-injury average weekly earnings figure of $1,018.47, as periodically indexed pursuant to s 82A of the Workers Compensation Act 1987. 2. Award for the respondent in respect of the claim for weekly compensation from 27 March 2020 to 19 August 2020.

STATEMENT OF REASONS

BACKGROUND

Mr Troy Lee (the applicant) was in the course of employment with Transport for NSW (the respondent) when he sustained an injury to his lumbar spine on 28 February 2018. Liability for the injury was accepted by the respondent’s insurer.
Following the injury, the applicant returned to work on suitable duties before commencing employment with a different employer. The applicant claims that his lumbar symptoms continued and progressed until he was unable to continue working on 25 March 2020.
The insurer disputed liability to pay weekly compensation in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on the basis that any incapacity did not result from the accepted injury.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 10 September 2021. The applicant seeks weekly compensation on an ongoing basis from 27 March 2020.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 22 November 2021. The applicant was represented by Mr Tony Baker of counsel, instructed by Mr Evan Griffith. The respondent was represented by Mr Lachlan Robison of counsel, instructed by Ms Mersina Kikinis. A representative from the insurer was also present.

During the conciliation conference, the parties reached agreement that the pre-injury average weekly earnings (PIAWE) figures set out by the applicant in a schedule served on the respondent were correct.

The respondent noted the need for further evidence regarding the applicant’s earnings during the period of weekly compensation claimed. A direction was made for the lodgement of the applicant’s PIAWE schedule and additional evidence of earnings in the applicant’s current employment.

Leave was also granted to the respondent to serve and lodge any supplementary written submissions in response to that material.

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:

(a) the extent and quantification of any incapacity resulting from injury during the period commencing 27 March 2020 to date and continuing.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD and attached documents;
(b) Reply and attached documents;

(c) documents attached to an Application to Admit Late Documents lodged by the applicant on 12 November 2021;

(d) further statement from the applicant and schedule lodged pursuant to the Commission’s direction on 23 November 2021, and

(e) written submissions lodged by the respondent on 29 November 2021.

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

Applicant’s evidence

The applicant’s evidence is set out in written statements made by him on 6 September 2021 and 22 November 2021.
In his first statement, the applicant gave evidence that he completed Year 10 of high school, following which he was employed as a labourer at an abattoir and as a slaughterman. Immediately prior to his employment with the respondent, the applicant was employed as a delivery driver.
The applicant held a mental health first aid certificate, Certificates II and III in meat processing and a Certificate III in driving operations.
The applicant commenced employment with the respondent on or about 18 October 2017. The applicant sustained an injury to his lumbar spine on 28 February 2018 after performing heavy work, shovelling concrete repetitively.
The applicant consulted his general practitioner, Dr Barbara Cameron, and was referred for a CT scan, which was performed on 2 March 2018. Dr Cameron subsequently recommended a CT guided right-sided L5 perineural injection. In late March 2018 the applicant was referred to a neurosurgeon for further opinion and management.
The applicant consulted neurosurgeon, Dr Malcolm Pell, on 27 March 2018 and was referred for an MRI of his lumbar spine. Dr Pell subsequently recommended a right L5 peri-radicular injection, which was performed on 14 June 2018. The applicant continued to attend regular consultations with Dr Cameron.
In 2019, the applicant commenced employment with Junee Gaol as a corrective services officer. The applicant said,
“I was unable to continue with that work as I found that I would need to sit or walk around frequently and sometimes would need to lie down.”
The applicant was certified as totally unfit for work on and from 27 March 2020.
On 9 October 2020, the applicant underwent a CT scan of the lumbar spine.
The applicant said he continued to experience pain, stiffness and restriction of movement in his mid and lower back and right hip. The applicant had pain radiating into his right leg and buttocks. The applicant experienced sleep disturbance and difficulties with heavy lifting and carrying, heavier household chores, sitting, standing or walking for prolonged periods. The applicant continued to use pain killing medication.
In his further statement, dated 22 November 2021, the applicant said he remained employed by the Junee Correctional Centre but had not worked there since 25 March 2020 and had received no wages since that date. The applicant utilised approximately three weeks of accrued annual leave. The applicant expressed the view that he would inevitably have his employment terminated.

Treating medical evidence

The clinical notes of the applicant’s general practitioner, Dr Barbara Cameron, recorded on 1 March 2018:
“Yesterday afternoon was shovelling concrete and developed sudden onset dull ache in lower back
Reported it to supervisor who advised to cease shovelling and twisting movements but continue gentle movement to avoid stiffening and spasm
On his drive home - pain worsened significantly, became sharper and more severe, started to develop burning sharp pajn down both thighs laterally to knee level
Overnight developed sharp burning pain down posterior R leg between knee and heel
Using ibuprofen/codeine prn through today to help function”
Dr Cameron noted that on examination the applicant had tenderness to palpation at L4/5. It was observed that the right hip appeared more elevated than the left. The applicant was referred for a CT scan of the lumbosacral spine.
A CT scan performed on 2 March 2018 noted a clinical history as follows:
“Sudden onset of worsening sharp pain midline lower back. Point tender over L5 with neuropathic pain extending down both legs laterally to the knee, and sharp neuropathic pain down right leg to heel ? disc pathology/spinal stenosis”
The scan was reported to show:
“Multilevel mild discogenic disease most marked at L4/5 with central disc protrusion and a degree of inferior pulsion with mild spinal stenosis and likely proximal L5 traversing nerve root irritation, particularly on the right.”
On 5 March 2018, Dr Cameron responded to a questionnaire from the insurer in relation to the injury. Dr Cameron gave the opinion that the applicant had not suffered an aggravation of a pre-existing condition. The applicant had not, to Dr Cameron’s knowledge, had any previous injuries or disease. The condition was described as a “first episode” rather than a recurrence.
On 6 March 2018, Dr Cameron reported that the applicant was experiencing increasing “radiculopathic” pain down the posterior right leg to the heel.
A letter of referral to neurosurgeon, Dr Malcolm Pell from Dr Cameron, dated 6 March 2018 described the injury at work. It was noted that the applicant felt more “radiculopathic” features over the following 24 hours. Dr Cameron had arranged a CT scan and sought approval for a CT guided injection of the L5 right-sided nerve root to help manage symptoms.
Correspondence from Dr Pell addressed to Dr Cameron dated 3 April 2018, recorded a history as follows:
“He said his back was sore but he continued to work and then developed pain in his right leg on his way home. He said he feels ‘'twisted and pushed to the left’. He has continued to work but only on light duties The pain runs through the back, the right buttock, the outer right thigh and leg to the ankle and in the left leg there can be some buttock and thigh pain He has undergone right L5 peri-radicular injection which has improved the situation but he is still getting periodic shooting pain through the right leg.”
Dr Pell’s examination showed some restriction of lumbar movements but no focal motor or sensory deficit in the lower limbs. Reflexes were equal and present. The CT scan showing mild bulging of the disc with central disc protrusion at the lumbosacral level, some foraminal narrowing on the right, as well as a disc protrusion at L4/5 and L5 irritation was noted.
Dr Pell recommended the applicant continue with physiotherapy and obtain an MRI scan of the lumbar spine.
On 10 April 2018, Dr Cameron recorded that the applicant’s pain was not well controlled with paracetamol. The applicant’s radiculopathy symptoms were considerable and there was no improvement with injection. The applicant was prescribed Lyrica.

An MRI performed on 20 April 2018 was reported to show at L4/5:
“Moderate reduction in disc height and hydration, posterior disc protrusion extending down a little below the level of disc which is probably chronic because there may be slight erosion of the adjacent bone margin it mildly indents the thecal sac it abuts the budding L5 nerve roots, a little more so on the left. Thus there is a possible left sided radiculopathy, which is more likely than a right radiculopathy.”
On 30 April 2018, Dr Pell reviewed the MRI scan performed on 19 April 2018. Dr Pell recommended a repeat injection and said that he did not feel surgical intervention was warranted based on the findings of the MRI scan.
On 5 May 2018, Dr Cameron recorded that the applicant’s radiculopathy was still considerable. The applicant’s Lyrica prescription was increased.
On 4 June 2018, it was noted that the applicant’s radiculopathy had improved initially with the Lyrica dose increase. However, the applicant started feeling “spacy” and having “blank moments” so stopped all medication. The applicant was restarted on celecoxib and paracetamol and was to continue topical Deep Heat, gentle massage, heat packs and physiotherapy.
Dr Cameron recorded some improvement with CT guided injection on 18 June 2018.
On 29 June 2018, the applicant’s physiotherapist, Mr Ben Frizzell, reported to Dr Cameron that the applicant had noticed a significant improvement in his pain and would tolerate an increase in his duties.
On 3 July 2018, Dr Cameron recorded:
“Huge improvement from last visit!
Feels the current physio approach is working much better
Brighter and more reactive
Pain much reduced
Function much improved
Increase lifting weight to 7.5mg floor to waist, still limited to 5kg above waist
Can squat, can bend to 45 degrees but not to bend and twist at same time RV 4 weeks Certificate updated
Keep up physio ++
Massage”
In a letter to the insurer dated 26 July 2018, Dr Cameron recorded that the applicant’s current capacity was eight hours per day, five days per week with limitations on sitting, standing, driving, lifting, bending and squatting. The applicant required ongoing treatment, particularly ongoing physiotherapy and remedial massage. It was noted that the applicant may require a repeat CT guided nerve root injection.
On 2 August 2018, Dr Cameron reported a steady improvement in pain and function. The applicant was using only occasional celecoxib and regular paracetamol. The applicant’s work capabilities were upgraded.
On 3 August 2018, Mr Frizzell reported that the applicant continued to make improvements in his pain and function. Mr Frizzell was optimistic that the applicant would return to full duties. In September 2018, Mr Frizzell again reported that the applicant was making good progress with his functional based rehabilitation and was working on high level lifting based core exercises.
Steady improvements were recorded again by Dr Cameron on 3 September 2018 and 3 October 2018. On 6 November 2018, Dr Cameron recorded:
“Coping with most duties at work
They're about to start a big concreting job and he is worried about the level of physical labour needed
Still getting radiculopathy R thigh level waking him at night - occasional panadeine forte nocte for this (has used 20 tab since start of sept)
Encouraged with continued return to normal duties.”
On 17 January 2019, the applicant was cleared to return to full normal work.
On 3 March 2020, Dr Cameron recorded:
“Was cleared for return to full duties Jan 2019
After return to duties suffered constant harassment and bullying from superiors and hence quit his job - sent them a letter explaining extensively his concerns as part of his resignation but no grievance resolution process was undertaken to his knowledge
Is now working fulltime as an officer at Junee Jail which he is enjoying
But has had constant and ongoing low back pain - from his injury onwards the pain actually hasn't much improved, he has just decided it's what he has to live with and is getting on with it - hasn't worsened, hasn't changed - just there all the time and limits his QoL
No aggravating/exacerbating injuries since starting his new job
Positive and reactive in affect, doesn't seem low/anxious
But is still seeing remedial masseuse intermittently and doing the physio exercises when he can as they do help a bit.
Suggest that he should be having fortnightly massage and monthly physio and that we should re-submit this as a WC claim as it is ongoing from the original injury (continuation, not aggravation) which he thinks is reasonable WC cert updated and provided to him - spoke with Raymond at QBE to confirm this is the correct approach in terms of the paperwork.
RV 4 weeks for progress”
On 7 May 2020, Dr Cameron noted that the insurer had finally contacted the applicant the previous day and told him that there was no way for him to have any treatment provided by them. The applicant’s back pain was ongoing and there had been no improvement. The applicant had been unable to get any massage and physiotherapy as providers had been locked down. The applicant’s certificate was “updated without change”.
On 20 August 2020, Dr Cameron reported to the insurer:
“He had initially quite slow recovery and then improved substantially and was cleared for full duties by the end of the same year but continued to require regular massage and physiotherapy to remain functional. For non injury related reasons, he left his RMS work and started work at a new employer. He has not re-injured himself, but his previous pain has worsened progressively over the past 12 months (onset of worsening symptoms prior to new employment) and he has now reached a point where he has been unable to work due to his symptoms since March 2020.
…
I genuinely believe that Troy's injury from 2018 is the cause of his current disability, not some other issue in the intervening time. He is now struggling to put on socks due to pain, or play with his children. He is unable to lift his kids for more than 5-10 minute periods due to the pain. He wakes often at night and struggles to fall asleep as well, despite simple analgesia. He ls experiencing almost constant radiculopathy symptoms with quite sharp, neuropathic pain extending down both his legs.”

A repeat CT or MRI scan was recommended. The report of a CT scan, dated 12 October 2020 stated:
“Minor degenerative changes and minor diffuse annular disc bulges at the lower two lumbar levels. Potential irritation of the descending L5 nerve roots in the subarticular recess at L4/L5 level as described. No significant central canal or foraminal stenosis seen. No significant interval change compared to the previous MRI lumbar spine study of April 2018 and CT lumbar spine study of March 2018.”
On 11 December 2020, Dr Cameron wrote to the insurer responding to a number of inaccuracies she had identified in a report from the respondent’s Independent Medical Examiner, Dr Vidyasagar Casikar, dated 5 November 2020:
“1.     Dr Casikar states that Troy does not like his job at Junee Correctional Centre on a number of occasions in this report - this is categorically untrue, Troy in fact says this job is the one he has most enjoyed in his working lifetime, but his ongoing severe pain is limiting his ability to participate in his work duties and he feels frustrated by not being able to fulfil his duties appropriately
2.      Dr Casikar states that Troy has a number of hobbies - it is true that indeed Troy previously enjoyed riding horses, hunting and breeding rare lizards and macaws. Unfortunately, his degree of pain and limitation of movement has meant that he has been unable to participate in most of these activities since his injury. He is still breeding the macaws but requires a friend to undertake the cleaning duties for the cages as he is unable to bend and reach to do this appropriately.
3.      Dr Casikar asserts that Troy has no ongoing aggravation of the original workplace injury - I would strongly dispute this given the degree of ongoing pain and limitation of his capacity to function both at home and in the workplace. I agree that Troy does have a significant degree of emotional distress and depression but I firmly believe that these issues are secondary to his pain and his sense of disempowerment throughout the work claim process.
4.      Dr Casikar states that Troy is having remedial massage and physiotherapy regularly - this is categorically untrue as Troy has no financial capacity to continue these treatments without the support of the insurer.”
Dr Cameron prepared a report for the applicant’s solicitor on 8 February 2021, which gave an account of the injury that was consistent with her clinical records. Dr Cameron stated:
“Presently, Mr Lee is totally incapacitated for work - I have restricted him from working at all due to the degree of pain he is experiencing. He continues to suffer with daily pain, poor sleep resulting from pain, and is unable to perform normal household tasks (like playing with his young children) or his usual hobbies (horse riding and hunting). I believe his limitation is due to his ongoing injury from the workplace incident on 28/2/18. I have never found any alternate explanation for Mr Lee's incapacity and he has always been keen to participate in physiotherapy or medication trials to improve his function, sadly without much success.
I genuinely believe that Mr Lee's current incapacity is entirely related to that original workplace injury from early 2018. While he has since left that employment, and has tried to work in alternate workplaces, his pain remains an ongoing issue and limits his ability to work anywhere at all or manage his home duties. Prognostication in chronic back pain is very challenging - my initial expectation from this injury was that Mr Lee would make a full recovery to normal duties within a six month period but the longer his pain continues the more it causes him distress and reinforces chronic pain pathways, thus making it very hard to provide any specific time period for the incapacity to continue.”

Dr Cameron prepared a further report for the applicant’s solicitor on 11 November 2021 stating,
“1. Since March 2020 Mr Lee has been partially incapacitated - he was initially continued on normal duties (unrestricted) with a request for financial support for ongoing physiotherapy and remedial massage to allow him to continue to work. I gather this request was declined by the previous workplace insurer on the grounds that he had been fully cleared for return to work more than 12 months prior. Mr Lee then returned to my care in August 2020 at which stage his pain had escalated considerably and was affecting his quality of life substantially. At this stage I declared him totally incapacitated for his work and he has remained so to date.
2. I causally related his incapacity since March 2020 to Mr Lee's injury at work on 28/02/2018, as previously stated in my letters and medical certificates. In particular, I refer you to my letter dated 20/08/2020 to QBE insurance requesting their support to reopen his case to continue to investigate and care for Mr Lee through this injury and rehabilitate him back into functional work.”

Certificates of capacity

An initial WorkCover certificate of capacity issued by Dr Cameron on 1 March 2018 certified the applicant as having capacity for some type of employment for eight hours per day five days per week. The applicant was subject to restrictions including no lifting or carrying, pushing or pulling, bending, twisting or squatting. The applicant had sitting and standing tolerances of 30 minutes and driving ability of 40 minutes.

In subsequent certificates, the applicant continued to be certified as having capacity for eight hours per day five days per week although his restrictions progressively reduced.
By October 2018, the applicant had a lifting, carrying, pushing and pulling capacity of 10kg waist to floor and no more than 7.5kg above the waist. The applicant’s sitting, standing and driving tolerances were unlimited.

By December 2018, the applicant was certified as having no or “unlimited” restrictions.

In a certificate dated 17 January 2019, the applicant was certified as fit for pre-injury duties although it was noted that the applicant required “ongoing remedial massage every two weeks and physiotherapy every four weeks to support continuation of pain.”

On 17 September 2020, the applicant was issued with a certificate certifying him as having no current work capacity for any employment from 27 March 2020 ongoing. The certificate referred to “ongoing severe pain, right hip pain and referred pain down both lower limbs worsening”.

There are, however, certificates in evidence, dated 3 March 2020 and 7 May 2020, in which the applicant was certified as fit for pre-injury work or as having unlimited capacity.

Centrelink medical certificates covering the period from 27 March 2020 onwards certify the applicant as being unfit for work due to severe pain in his lower back and right hip pain radiating down both legs with a date of onset of 28 February 2018.

A WorkCover certificate of capacity issued by Dr Donaldson of Gundagai Medical Centre, dated 21 October 2021 certifies the applicant’s having no current capacity for any employment as a result of the injury on 28 February 2018.

Dr Patrick

The applicant relies on a medico-legal report prepared by general, vascular and trauma surgeon, Dr Patrick, dated 4 August 2021.
Dr Patrick described the work injury as an injury to the lower back with radiation of pain down into the lower limbs, more so on the right with some subsequent right hip pain.
Dr Patrick noted that it was significant that the applicant had been working physically with no previous problems of significance with his back at all. A history of treatment, consistent with the applicant’s statement evidence, was recorded.
Dr Patrick recorded that following the injury:
“There was no way he could continue with his work duties with RMS/ Transport NSW. To his credit he was able to find work at Junee Gaol in Corrective Services.
As time went on his symptoms worsened. He believes he was fortunate to get the work at Junee Gaol, but again he had difficulties there also. He had commenced there about two years or so prior to this consultation. The work was mostly observation, but there was also computer work and he found he was having problems even with the work there. He had difficulty sitting for long periods. He had the need all the time to either sit or go for a walk, or not infrequently have to lie down.”
The applicant’s ongoing symptoms included problematic back pain, more at the lumbar spine, radiating into both sides, more on the right. The applicant was aware of increasing discomfort at the right hip. The applicant continued on medication including paracetamol and ibuprofen. The applicant had been using Lyrica for neuropathic pain but had to cease this. The applicant had been having physiotherapy but not recently.
Dr Patrick’s physical examination was conducted through telehealth and noted mild gait disturbance including a slight limp favouring the right lower extremity and restriction of movement. Dr Patrick felt it likely that the applicant had at least a right lower extremity radiculopathy.
Dr Patrick expressed strong disagreement with the conclusions of the respondent’s medicolegal expert, Dr Vidyasagar Casikar, stating:
“Troy Lee has no history whatsoever of any symptomatic condition arising at lumbar spine or lower extremities. There is no history whatsoever of prior relevant history in this regard. This has been quite a serious incident of workplace injury carrying out the concreting job. I do believe that this Section 78 Notice should seriously be reviewed.”
With regard to the applicant’s capacity for work, Dr Patrick stated,
“As he presents now he is totally incapacitated for work of a physical nature. It may well be the case that he is able to get back to less arduous part-time work. This would need to be in a supportive environment and this cannot always be relied upon.
I believe it is clear that his lumbar spinal injury is directly as a consequence of the workplace accident of 28 February 2018.
In my opinion, Mr Troy Lee is essentially unemployable because of the severe physical restrictions, disabilities and limitations placed upon him, and the likelihood of him suffering aggravations or flare-ups performing even very light duty work of a couple of hours per day, which I believe would cause him to be unable to attend work on regular days, thereby rendering Mr Lee essentially unemployable.
I do casually relate this incapacity directly to the injury sustained by him at work on 28 February 2018.”

Dr Casikar

The respondent relies on medico-legal reports prepared by neurosurgeon, Dr Vidyasagar Casikar, dated 5 November 2020 and 11 April 2021.
In his first report, Dr Casikar noted by way of background that the applicant worked as a correctional officer following the cessation of his employment with the respondent. Dr Casikar commented,
“He does not like this job because it involves a lot of walking and standing. Therefore, he has stopped working altogether.”
Dr Casikar took a history of the injury and subsequent treatment that was broadly consistent with the other evidence. Dr Casikar recorded that the applicant was undertaking physiotherapy and remedial massage. The applicant had ceased Lyrica and was taking mainly antidepressant medication. The applicant was noted to be very emotional during the course of the examination.
Dr Casikar noted that the CT scans indicated broad-based disc bulges at L/5 and L5/S1. There was no evidence of definite disc protrusion or nerve root compression. There was a suggestion of degenerative change at multiple segments. The MRI scan of 19 April 2018 was noted to show degenerative changes at L4/5 and L5/S1.
Dr Casikar made a diagnosis of a workplace aggravation of a pre-existing degenerative disease and pain syndrome. Dr Casikar gave the opinion:
“Since the injury, he has improved significantly. There is no structural abnormality which is causing his present problem. I believe the workplace aggravation has resolved. He has significant emotional issues surrounding this injury. He has a pain syndrome.
Mr Lee is not physically capable of doing the concreting job. He also does not like the job of a correctional officer because it involves walking and standing for long hours. I believe that he does not like the correctional officer job because of the whole circumstances of the job. Vocational redirection is necessary if he is to remain in the workforce.”
Dr Casikar said the applicant was fit to resume his duties at the correctional centre but seemed to have some “emotional problems related to this”. Dr Casikar agreed that the applicant was probably not fit to continue with his pre-injury job.
Dr Casikar gave the opinion that the applicant did not have any permanent impairment relating to the injury as he had recovered from the workplace injury to his back.

In his supplementary report, Dr Casikar reviewed the reports of Dr Cameron dated 11 December 2020 and 8 February 2021, as well as her clinical records. Dr Casikar responded:
“Dr Cameron indicates that Mr Lee did not have remedial massage. I have recorded what he told me. If he hasn’t had remedial massage I would accept it, however this does not make any difference to his spinal issue. Dr Cameron admits that Mr Lee has strong emotional problems. However, he maintains that his back pain is related to the workplace injury. Unfortunately, Dr Cameron does not realise that pain is a syndrome and not a diagnosis. Pain can be due to various reasons. Therefore, I believe that he should concentrate on the non-organic issues of his back pain. I have not noticed any pain generators in the back which would explain his symptoms.”

Applicant’s submissions

Mr Baker referred to the applicant’s statement evidence, noting his limited education and work history. The history of referrals for radiological investigation and CT guided injection by Dr Cameron and the subsequent referral to Dr Pell were also noted.
Following the injury, the applicant attempted to return to work as best he could and was taking medication in order to be able to do so. The applicant was not, however, able to continue and left his employment. The insurer paid for the applicant’s medical treatment but he was not paid weekly compensation.
The applicant was able to find more appropriate work which did not have the same physical requirements. The applicant’s back symptoms continued to plague him and he was unable to continue in that employment either. The applicant ceased work on 25 March 2020 and his claim for weekly compensation commenced on 27 March 2020.
The applicant saw Dr Cameron again and, after some initial confusion regarding his certifications, was certified totally unfit for work from 27 March 2020 onwards. The applicant underwent further a CT scan in October 2020 and sought to reinstate his claim. The claim was disputed on the basis of Dr Casikar’s reports.
Mr Baker noted that Dr Casikar opined that the workplace incident had resulted in an aggravation of a pre-existing degenerative disease, which had now resolved. Inconsistently, Dr Casikar also found there was no structural abnormality.
Mr Baker observed that Dr Cameron had, in her December 2020 report, sought to correct a number of inaccuracies in Dr Casikar’s first report. Dr Cameron concluded that the applicant’s continuing pain was the result of the work injury. Dr Cameron noted that there was no preceding issue with the applicant’s back. The applicant had been active and had a number of hobbies which he had not been able to continue with following the injury. The applicant had struggled with significant pain ever since the injury and was now totally incapacitated, so much so that he was unable to attend his domestic duties or hobbies. Dr Cameron reported that there was no subsequent exacerbation or further injury, other than a slow deterioration of the applicant’s condition, following the work injury.
Whilst the applicant was initially expected to recover, clearly he did not. This had resulted in distress and psychological symptoms. The applicant had previously found remedial massage and physiotherapy to be efficacious.
Mr Baker referred to the clinical records of Dr Cameron, noting that she had treated the applicant since 2018. Dr Cameron’s response to the insurer’s questionnaire specifically said that this had been the first episode of back pain. In the series of reports prepared by Dr Cameron, the applicant’s pain was noted to have progressively worsened such that he was unable to work since March 2020. Dr Cameron causally related the incapacity to the work injury.
Mr Baker submitted that Dr Cameron had seen the applicant on a number of occasions. The applicant had attempted treatment including rehabilitation, medication, physiotherapy and massage and yet was incapacitated. The applicant enjoyed his job at the correctional centre but his ongoing severe pain meant he was unable to fulfil his duties appropriately or attend to his hobbies. The degree of ongoing symptoms had caused the applicant distress secondary to his pain. The applicant’s motivation to recover and return to work was demonstrated by his attempt to find more suitable work.
Mr Baker submitted that Dr Cameron’s findings on examination were confirmed by the radiological evidence. Dr Cameron never found any alternative explanation for the applicant’s incapacity and symptoms. The applicant was noted to be compliant with treatment. Mr Baker submitted that this spoke volumes of the applicant’s credibility. Mr Baker submitted that the Commission would be left in no doubt as to the genuineness of the claim and the applicant’s determination to return to work. Dr Cameron’s opinion was that the applicant’s current incapacity related to the original workplace injury.
Mr Baker referred to the report of Dr Patrick and noted that he obtained a full history which was internally consistent with the clinical notes and reports of Dr Cameron. The applicant had no previous symptoms and Dr Patrick also found the current symptoms were causally related to the work injury. The applicant was found to be totally incapacitated for physical work and essentially unemployable due to regular flareups of his back pain. Dr Patrick specifically disagreed with the opinions expressed by Dr Casikar and explained his views.
Mr Baker submitted that Dr Pell’s reports provided cogent evidence that the applicant’s complaints had a physical basis.
Mr Baker submitted that the applicant’s treating general practitioner and treating neurosurgeon thought that there was a physiological basis for the applicant’s symptoms. An expert report had also been provided in favour of the applicant’s case.

Against the applicant’s case were the reports from Dr Casikar. Mr Baker noted that Dr Casikar had formed the view that the applicant did not like his job and so stopped work. Mr Baker submitted that the long walking and standing required by job could not be done. That the applicant was depressed was understandable given his predicament. The applicant had no prior history of back pain or depression.

Mr Baker submitted that it was remarkable that Dr Casikar formed the view that there was no evidence of definite disc protrusion. That opinion flew in the face of the specialist radiologists’ reports and the opinions of Dr Cameron and Dr Pell.

Mr Baker described Dr Casikar’s reports as internally inconsistent. There was no basis for Dr Casikar’s thesis given the historical account of symptoms. Dr Casikar agreed that the applicant was not fit to perform his pre-injury duties despite his view that an aggravation had ceased. Dr Casikar was not a qualified psychologist or psychiatrist, yet appeared to deal with the applicant’s claim on a psychological basis.

The opinion expressed by Dr Casikar in his second report did not deal with the evidence from Dr Pell, Dr Patrick, Dr Cameron or the radiological experts, recording complaints of sciatic and radicular pain.
Mr Baker submitted that the Commission would prefer the opinions of the applicant’s treating doctors and Dr Patrick to those given by Dr Casikar. The applicant’s evidence and work history were credible and consistent with what was demonstrated radiologically.
Mr Baker submitted that the Commission would make an award for the applicant on the basis of no current work capacity.

Respondent’s submissions

Mr Robison submitted that the respondent’s defence was that the work injury was no longer producing symptoms and so the applicant had no entitlement to weekly benefits. The respondent also placed the quantum of any entitlement to weekly benefits in issue.
Mr Robison noted the applicant’s statement evidence but submitted that the Commission would prefer the clinical material. The applicant’s statement was of no assistance with regard to what occurred in his subsequent employment. The applicant’s pre-injury duties appeared to be quite different to the work performed at the correctional centre. It was noted that the evidence suggested that the applicant was still technically employed by the correctional centre.
Mr Robison submitted that the applicant bore the onus of satisfying the Commission that he had no current work capacity.
Referring to the clinical notes of Dr Cameron and the reports of Dr Pell, Mr Robison submitted that the seriousness of the injury was in doubt. The evidence suggested that the applicant had been able to work in his pre-injury role from January 2019 and was performing most of his duties. The clinical evidence was consistent with the aggravation having ceased and demonstrated a significant capacity to work.
Dr Cameron’s correspondence to the insurer dated December 2020 suggested the applicant was disempowered by the claims process. The tone of the correspondence was described by Mr Robison as “troubling” in so far as Dr Cameron appeared to be acting as an advocate, thereby reducing the objectivity of her opinions.
The clinical evidence suggested significant improvements in pain and function. The applicant had participated in examinations without pain and demonstrated significant lifting capacity and full movement. Mr Robison submitted that Dr Cameron’s opinions would not assist the Commission in determining which expert opinion to prefer given her lack of objectivity.
Mr Robison submitted that Dr Casikar obtained a thorough history and noted the applicant was very emotional throughout the examination. Dr Casikar’s opinion was balanced and it was noted that he accepted that there was an aggravation of pre-existing disease. Dr Casikar made appropriate concessions where justified but formed the view that emotional problems were preventing the applicant’s return to duties at the correctional centre.
Mr Robison submitted that Dr Casikar gave the opinion that any incapacity as a result of the workplace injury in 2018 had resolved, although the applicant remained unfit to continue his pre-injury employment with the respondent. The incapacity to perform pre-injury duties was due to constitutional degenerative change and not the workplace aggravation, which had ceased. Dr Casikar made an assessment of whole person impairment of 0% consistent with a low degree of workplace injury.
In his supplementary report, Dr Casikar considered the reports and clinical notes of Dr Cameron. Dr Casikar maintained his opinions, which Mr Robison submitted were based on a proper factual foundation.
Mr Robison noted that in her most recent report, Dr Cameron expressed the view that the applicant was only partially incapacitated.

Applicant’s submissions in reply

Mr Baker noted that Dr Pell had determined that there was a disc protrusion.
Although Dr Cameron’s reports had been criticised for taking a position as an advocate, Mr Baker submitted that she was only correcting obvious errors in Dr Casikar’s reports compared to her contemporaneous notes.
Mr Baker noted that there were various radiological reports in evidence. Each took a history and concluded that there was evidence to demonstrate why the applicant complained of radiculopathy. The radiological evidence was consistent with the applicant’s evidence.

Respondent’s written submissions

In further submissions lodged in writing following the arbitration hearing, the respondent submitted that it’s position that the applicant had significant work capacity had not altered.
The respondent submitted that if the applicant were to succeed, weekly benefits should be awarded at a heavily discounted rate. The Commission may consider 50% to be reasonable.
The respondent noted that there were no clinical records or medical reports dated between 17 January 2019 when the applicant was certified fit to perform his pre-injury duties and when he downgraded in capacity, to support the applicant's contention that his pain had worsened progressively such that he could not continue in his employment with the correctional centre.

FINDINGS AND REASONS

Section 33 of the Workers Compensation Act 1987 (1987 Act) provides that if total or partial incapacity for work results from an injury, the compensation payable by the employer to the injured worker shall include a weekly payment during the incapacity.
It is not in dispute that the applicant in this case sustained a compensable injury to his lumbar spine on 28 February 2018. What is in dispute is whether, and to what extent, the applicant has been incapacitated for work, as a result of that injury during the period from 27 March 2020 onwards.
If the applicant has been totally or partially incapacitated as a result of the work injury during the relevant period, quantification of the applicant’s entitlement to weekly compensation requires a determination as to whether, during that period, the applicant had “no current work capacity” or “current work capacity”.
Section 32A of the 1987 Act defines those expressions as follows:
“current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.
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 WorkCover 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.”
Determination of this dispute requires an examination of the nature and progression of the work injury.
The respondent’s case is that the work injury was relatively minor and consisted of an aggravation of degenerative disease at the lumbar spine, which subsequently ceased.
It is true that the radiological evidence before the Commission is suggestive of degenerative changes at the applicant’s lumbar spine. The applicant’s evidence and the history recorded by his treating doctors and Dr Patrick, however, is that the applicant had no previous problems with his back and had been capable of working in physically demanding employment prior to the injury on 28 February 2018.
Dr Cameron in response to a questionnaire from the insurer specifically described the injury as a “first episode” and indicated that there had not been any previous injuries or disease to her knowledge.
Dr Casikar also took no history of prior symptoms, investigation or treatment at the lumbar spine.
The treating medical evidence indicates a sudden onset of pain on 28 February 2018 which commenced as a dull ache but soon worsened significantly to become sharper and more severe, with neuropathic pain extending down both legs.
The applicant’s symptoms were investigated by CT scan relatively quickly and pathology consistent with Dr Cameron’s clinical history including, a central disc protrusion at L4/5, mild spinal stenosis and likely proximal L5 traversing nerve root irritation was found in addition to multilevel mild discogenic disease.
Dr Pell recorded complaints of symptoms of pain radiating into the right leg and buttocks to the ankle, as well as buttock and thigh pain on the left, at the time of his examination of the applicant. Dr Pell noted that mild bulging of the disc with central disc protrusion at the lumbosacral level and disc protrusion at L4/5 as well as L5 irritation were shown on the CT scan. A subsequent MRI scan also showed a posterior disc protrusion at L4/5 abutting the budding L5 nerve roots, more so on the left. Dr Pell recommended that the applicant undergo conservative treatment including a repeat injection.
Notwithstanding these symptoms, and the pathology shown on the radiological investigations, the applicant continued to work essentially full-time hours in his employment with the respondent subject to restrictions. The treating medical evidence including the notes and reports of Dr Cameron, the reports of Mr Frizzell and the WorkCover certificates of capacity indicate that those restrictions gradually eased until the applicant was certified as fit for pre-injury duties in January 2019.
During this period, the treating evidence suggests that the applicant noticed a significant improvement in his pain with the further injection. The applicant’s medication was adjusted and he continued to be treated with gentle massage, heat packs and physiotherapy. The physiotherapy was noted to be beneficial and the applicant appeared to be compliant and making good progress with his functional based rehabilitation.
Although there were significant improvements, the treating evidence does not suggest that the applicant’s symptoms completely abated. On 6 November 2018 the applicant was noted to continue to experience radiculopathy waking him at night. The applicant was occasionally using Panadeine Forte. The applicant expressed concern about the level of physical labour needed in relation to a big concreting job that was about to start. In the WorkCover certificate issued on 17 January 2019, it was noted that the applicant required ongoing remedial massage every two weeks and physiotherapy every four weeks. The possibility of a further injection being required was also flagged.
There is then a gap in the treating medical evidence between 17 January 2019 and 3 March 2020.
The applicant’s statement evidence indicates that during this period he ceased employment with the respondent and obtained new employment at the Junee correctional facility. The applicant’s evidence does not deal explicitly with the reasons for the change of employment, however, the clinical records of Dr Cameron on 3 March 2020 suggest that bullying and harassment from his superiors led to the applicant resigning from his employment.
The same clinical note stated that, although the applicant was enjoying his full-time work at the correctional facility, he had constant and ongoing low back pain. This had continued from the time of the injury onwards and hadn’t much improved or worsened. The applicant had decided that it was what he had to live with, however, the pain was there all the time and limited his quality of life. Dr Cameron specifically recorded that there was no aggravating or exacerbating injuries since starting his new job. The applicant was noted to be positive and reactive in affect and did not appear low or anxious. It was noted that the applicant was seeing a remedial masseuse intermittently and doing physiotherapy exercises when he could.
The applicant’s evidence is that he was unable to continue with his work as a corrective services officer as he needed to sit and walk frequently and would sometimes need to lie down. The applicant said he had not worked since 25 March 2020.
The medical evidence from Dr Cameron is somewhat inconsistent with regard to the applicant’s capacity for work between March 2020 and August 2020.
WorkCover certificates of capacity were issued on 3 March and 7 May 2020 certifying the applicant as having an unrestricted capacity for work.
Clinical notes recorded by Dr Cameron on those dates referred to a continuation of lower back pain and need for ongoing treatment through massage and physiotherapy for which the insurer would be approached. The notes do not, however, indicate that the applicant was incapacitated for work.
The most recent report from Dr Cameron confirmed that the applicant was initially continued on unrestricted duties in March 2020, albeit with a request for ongoing financial support from the insurer to fund physiotherapy and remedial massage to allow him to continue to work.
A clinical note recorded by Dr Cameron on 7 May 2020 noted that the applicant’s back pain was ongoing and that he had been unable to get any massage or physiotherapy as providers had been locked down due to the COVID-19 pandemic. The insurer had also contacted the applicant and told him that there was no way for him to have any treatment provided by them.
On 20 August 2020, Dr Cameron prepared a report indicating that although the applicant had not reinjured himself, his original pain had worsened progressively and he had now reached a point where he had been unable to work due to his symptoms since March 2020. At that stage, the applicant was experiencing almost constant radiculopathy symptoms with neuropathic pain extending down both legs.
In her most recent report, Dr Cameron confirmed that the applicant had returned to her care in August 2020 with pain that had escalated considerably and which was substantially affecting his quality of life. At that stage, Dr Cameron declared the applicant totally incapacitated for work.
In August and September 2020, Dr Cameron issued backdated Centrelink and WorkCover certificates certifying the applicant as having no current work capacity for any employment from 27 March 2020 onwards.
Notwithstanding the gap in the treating medical evidence between January 2019 and March 2020, therefore, the evidence before the Commission is consistent with the applicant’s back symptoms continuing in a fairly consistent fashion until March 2020, around which time his access to massage and physiotherapy treatment became restricted and his symptoms worsened.
In his November 2020 report, Dr Casikar recorded that the applicant was undertaking physiotherapy and remedial massage. That was noted by Dr Cameron to be incorrect in her report of December 2020.
Dr Casikar also reported that the applicant’s condition had improved significantly since the injury. Whilst this observation appears consistent with the treating medical evidence up until 17 January 2019, it is not consistent with the contemporaneous evidence from Dr Cameron dated after March 2020.
Dr Casikar also appears to have taken the view that the applicant ceased employment with the correctional centre due to some “emotional problems” and not liking his job because of “the whole circumstances of the job”.
That history is inconsistent with the applicant’s statement evidence and also the clinical note recorded some eight months earlier by Dr Cameron that the applicant was enjoying his new job but had constant and ongoing low back pain.
Dr Casikar has suggested that the applicant’s pain was non-organic and he had strong emotional problems. Dr Casikar found no structural abnormality to account for the applicant’s symptoms.
Whilst it has been acknowledged by Dr Cameron that the applicant has experienced secondary psychological symptoms due to his physical condition, the applicant’s medical evidence is consistent with there being an organic or pathological explanation for his symptoms.
The radiological investigations in 2018 demonstrated significant pathology including disc protrusion and nerve root irritation particularly at the L4/5 and L5/S1 levels. An L5 peri-radicular injection arranged by Dr Pell and carried out on 14 June 2018 was noted to have been particularly effective in alleviating the applicant’s symptoms. The October 2020 CT scan indicated that there had been no significant change in pathology compared with the earlier investigations.
Both Dr Cameron and Dr Patrick have expressed firm views that the applicant’s current symptoms and incapacity were causally related to the injury sustained at work on 28 February 2018.
The internal inconsistencies in Dr Casikar’s reports as noted by the applicant in submissions and the lack of correlation between Dr Casikar’s history and the other evidence, compared with the consistent evidence of Dr Cameron, Dr Patrick, Dr Pell and the radiological reports, lead me to prefer the applicant’s evidence over the opinions expressed by Dr Casikar.
Although the some of the more recent reports of Dr Cameron were criticised by the respondent as lacking objectivity, I am satisfied that the ultimate opinions expressed by Dr Cameron are consistent with her contemporaneous clinical notes.
I am satisfied that in the period of weekly compensation claimed, the applicant has suffered total or partial incapacity as a result of the work injury on 28 February 2018.
As noted above, the evidence as to the extent of any incapacity in the period between 27 March 2020 and 20 August 2020 is inconsistent. The contemporaneous medical evidence, including Dr Cameron’s clinical notes and the WorkCover certificates of capacity issued by her suggest that the applicant retained an unrestricted or unlimited capacity to work during this time.
The applicant’s evidence is that he did not in fact work this period but did access accrued annual leave from his employer. Payslips from the applicant’s employment with the correctional centre are not in evidence, however, payment summaries attached to the ARD suggest some payments were made to the applicant by the Department of Human Services in the period between 30 March 2020 and 30 June 2021. There is no evidence before me to suggest that the applicant was performing actual work during this period although he remained employed.
Although Dr Cameron did subsequently certify the applicant as having total incapacity from 27 March 2020, she has not provided a satisfactory explanation for the change in her certifications for this period. Nor is the applicant’s condition during this period satisfactorily explained in the applicant’s lay evidence.
Whilst I accept that the applicant has not worked since 25 March 2020, I am not satisfied on the evidence as a whole that the applicant had a present inability to work in either his preinjury employment or suitable employment between 27 March 2020 and his return to Dr Cameron on 20 August 2020. Rather, the contemporaneous evidence indicates that the applicant had an unrestricted ability to work pre-injury duties during that period, notwithstanding the ongoing symptoms he was experiencing at that time and his extant need for treatment of those symptoms.
The situation on and from 20 August 2020, when Dr Cameron wrote to the insurer regarding the applicant’s condition, can be distinguished. This was when Dr Cameron first recorded that the applicant was unable to work. The applicant was struggling to put on socks due to pain or play with his children. The applicant woke often at night and struggled to fall asleep despite simple analgesia. The applicant was experiencing almost constant radicular symptoms with sharp neuropathic pain extending down both legs.
Certificates issued by Dr Cameron from this period onwards certify the applicant as being totally incapacitated for work and remaining so to date. In her most recent report, Dr Cameron confirmed that by August 2020, the applicant’s pain had escalated considerably.
Consistently with Dr Cameron’s evidence from this time onwards, Dr Patrick has expressed the view that the applicant was totally incapacitated for work of a physical nature and was essentially unemployable for other work because of the severe physical restrictions, disabilities and limitations placed upon him and the likelihood of him suffering aggravations or flareups when performing very light work of a couple of hours per day.
The only contrary evidence is found in the reports of Dr Casikar. Although Dr Casikar accepted that the applicant was not capable of doing his pre-injury work, he gave the opinion that the applicant was fit to resume duties at the correctional centre.
As indicated above, Dr Casikar’s opinion appears to be founded upon a history that was in significant respects inconsistent with the other evidence before me, particularly in relation to the applicant’s ongoing access to treatment, his current complaints and the reasons for him ceasing work. For these reasons, I prefer the opinions given by Dr Cameron and Dr Patrick. Most recently, a consistent opinion that the applicant had no current work capacity as a result of the injury on 28 February 2018 was also given by another general practitioner, Dr Donaldson.
For the reasons given above I am satisfied that the applicant had no current work capacity as a result of the work injury on 28 February 2018 from 20 August 2020 to date and continuing. I am not, however, satisfied on the evidence before me that the applicant was totally or partially incapacitated for work as a result of the injury between 27 March 2020 and 19 August 2020.
The parties have reached agreement that the applicant’s PIAWE figure was $1,018.47. That figure is subject to periodic indexation pursuant to s 82A of the 1987 Act as set out in the schedule provided by the applicant.
No weekly payments have been made to date.
I am satisfied that there should be an award for the applicant for weekly compensation pursuant to ss 36(1) and 37(1) of the 1987 Act, as those sections apply in this case, based on the agreed PIAWE rate as indexed.
For the period 27 March 2020 to 19 August 2020, there will be an award for the respondent.

[2022] NSWPIC 28

21 January 2022