Mackinney v The Executive Inn Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mackinney v The Executive Inn Pty Ltd [2025] NSWPIC 451
APPLICANT:	Margaret Therese Mackinney
RESPONDENT:	The Executive Inn Pty Limited
MEMBER:	Adam Halstead
DATE OF DECISION:	2 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation; assessment of whole person impairment (WPI); nature of injury; section 4(a); undisputed applicant worker injured her lower back at work; later diagnosis of sacroiliac joints injury; issue whether sacroiliac joints also injured at time of lower back injury; respondent employer contends age-related degeneration; Held – sacroiliac joint injury most likely occurred at time of lower back injury; remitted to President for referral to Medical Assessor for WPI assessment of lower back and sacroiliac joint injuries.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant injured her sacroiliac joints at work on 7 July 2020. 2. The matter is remitted to the President for referral to a Medical Assessor, to be appointed by the President, for whole person impairment assessment of the lumbar spine and sacroiliac joints arising from injury on 7 July 2020. 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attachment of 45 pages; (b) Reply and attachment of 105 pages; (c) Application to Lodge Additional Documents (applicant) dated 18 June 2025 and attachment of 85 pages, and (d) this Certificate of Determination and Statement of Reasons. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

While working as a housekeeper, the applicant, Margaret Therese Mackinney, injured her lower back when making up a fold-out bed on 7 July 2020. The workplace incident was reported at the time, she received medical treatment, was paid weekly compensation and has not returned to work. The applicant submitted a claim for lump sum compensation on
8 January 2025 in relation to her lower back, including for sacroiliac joint injury. The respondent, The Executive Inn Pty Limited, disputes sacroiliac joint injury. The applicant lodged an Application to Resolve a Dispute (ARD) at the Personal Injury Commission (Commission) on 12 May 2025, that initiated these proceedings.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter first came before the Commission for preliminary conference on 17 June 2025; procedural directions were made. The Commission convened for arbitration hearing on
17 July 2025. Mr Hickey of counsel, instructed by Mr Bechelli from Whitelaw McDonald Lawyers, appeared for the applicant, who was present. The respondent was represented by Mr Jones of counsel, instructed by Mr Van der Hout from BBW Lawyers, and a delegate of its insurer was also in attendance.
The ARD was amended by consent, and with the leave of the Commission, at the commencement of the hearing to include injury to the sacroiliac joints.
I am satisfied the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I endeavoured to bring the parties to the dispute to an acceptable settlement. The parties had sufficient opportunity to explore settlement. They were unable to reach an agreed resolution of the dispute.

ISSUE FOR DETERMINATION

The issue for determination is whether the applicant sustained sacroiliac joint injury at work on 7 July 2020.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission, without objection, and considered in making this determination:
(a)    ARD with 45-page attachment;
(b)    Reply lodged by the respondent with 105-page attachment (Reply), and
(c)    Application to Lodge Additional Documents made by the applicant on
18 June 2025 with an 85-page annexure (ALAD).
There was no application to call oral evidence or cross-examine any witness at the hearing.

CONSIDERATION, FINDINGS AND REASONS

The applicant contends a distinct sacroiliac joint injury also occurred on 7 July 2020 when her lower back was injured at work while repositioning a fold-away bed. Section 4(a) of the Workers Compensation Act 1987 (the 1987 Act) is relevant and provides that an injury must have arisen out of, or occurred in, the course of employment for compensation to be available. Section 9A of the 1987 Act requires employment to also be a substantial contributing factor to the injury.
The applicant bears the onus of establishing her case of workplace injury on the balance of probabilities with respect to s 4 of the 1987 Act: Department of Education and Training v Ireland.[1] In determining whether the onus has been met, the evidence must produce a sense of actual persuasion that the probability of the existence of a fact is greater than the probability of its non-existence: Nguyen v Cosmopolitan Homes.[2]
[1] [2008] NSWCCPD 134.
[2] [2008] NSWCA 246.
An ‘injury’ refers to both the event and the pathology arising from it: Lyons v Master Builders Association of NSW Pty Ltd.[3] This meaning has consistently been applied to ‘injury’: Department of Juvenile Justice v Edmed.[4]
[3] (2003) 25 NSWCCR 422 at 429.
[4] [2008] NSWWCCPD 6.
The meaning of a personal injury was considered in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear,[5] with Roche DP observing that “a ‘personal injury’ is a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”, that is, “a sudden identifiable pathological change”.
[5] [2014] NSWWCCPD 47.
The applicant’s primary contention is about frank injury to her sacroiliac joints, in particular the left, when the incident occurred at work. The event is undisputed, however the cause of any sacroiliac joint injury the applicant may suffer is not. I must therefore examine whether there was a sudden identifiable pathological change or disturbance in the state of the applicant’s sacroiliac joints from the 7 July 2020 workplace incident.

Applicant’s statement evidence

In her 16 November 2022 statement, the applicant described the occasion when her back was injured at work:[6]
“11. On 7 July 2020 I suffered an injury to my back whilst I was making up a foldout bed. I had to take off the pillowcases and sheets and put fresh ones on and then fold the bed back into place. There was a handle at the end of the bed which had to be pulled in order to fold the bed back into position of a lounge. As I was pulling the handle it jammed and it would not go. I pulled harder a second time, and as I did so I felt a pain in my lower back.
12. This happened about 12.30pm and I continued working until I finished my shift at 1 pm.
13. I have not been back to work since that day.”
[6] ARD p 1.
The applicant’s evidence about the circumstances of the back injury is undisputed. She consulted Dr Christine Aus, general practitioner, shortly after the incident who arranged for radiological investigations and subsequently made specialist referrals to Dr Richard Ferch, neurosurgeon and spinal surgeon, and then Dr Willem Volschenk, specialist pain medicine physician.
Following an MRI scan on 31 July 2020, Dr Mauro Cesar Silveira Moreira, radiologist, identified the applicant as having:[7]
“… mild arthrosis on the left L5/S1 facet joint. Small effusions are noted in the remaining facet joints.
At L1/L2 there is a posterior anular [sic] tear and also disc extrusion located posteriorly to the left on the middle which migrates superiorly through the epidural space for about 1cm.
…
At L4/L5 there is a left sided posterior annular tear associated with a mild foraminal protrusion. There are no signs of severe spinal canal or foraminal stenosis.
…”
[7] ALAD p 79.

Dr Richard Ferch

Dr Ferch reported on 3 September 2020, having seen her the same day, the applicant “experienced severe pain radiating across her back and has also experienced pain radiating into her left buttock and posterior thigh”.[8]
[8] ALAD p 84.
Referring to a “recent MRI scan”,[9] Dr Ferch noted “mild degenerative change at the L4/5 level with a suggestion of a left sided intradiscal tear but there is no real neural compromise”.
[9] Evidently that of Dr Moreira taken 31 July 2020.
It was considered there was “no significant structural injury” to the applicant’s back and
Dr Ferch recommended a program of stretching exercises, including yoga and Pilates, and “physiotherapy based exercises”.

Dr Willem Volschenk

The applicant saw Dr Volschenk on several occasions in relation to back pain. Following their first consultation, with access to the MRI findings of Dr Moreira, he reported on
22 October 2020 a diagnosis that the applicant was:[10]
“… symptomatic from her discogenic disc disease and in particular an annual [presumably should read ‘annular’] tear at L4/5. This results in neuropathic lower back pain with pain radiating down her leg in both a L4 and L5 distribution. Her facetogenic arthralgia is playing a role in her generation of her lower back pain with functional entrapment of her cluneal nerve responsible for her lateral belt line pain.”
[10] ALAD p 75.
At the time of their consultation on 16 August 2021, Dr Volschenk reported the applicant’s “right side lower back pain [had] abated”, but that she “still [had] persistent left sided lower back pain which she [found] difficult to manage” that he referred to as “residual left sided lower back pain”.[11] According to his 21 March 2022 report, the applicant had “persistence in her lower back pain” that Dr Volschenk noted to be “severe” at that time.
[11] ALAD p 77.

Dr Chris Harrington

The respondent qualified Dr Chris Harrington, orthopaedic surgeon, to conduct an independent medical examination of the applicant for workers compensation purposes. He provided several reports, the first of which was dated 19 November 2020 following a consultation two days earlier and with the benefit of Dr Moreira’s MRI report. Dr Harrington considered the 7 July 2020 incident was the cause of the applicant’s back pain at the time of reporting. She remained symptomatic and although the “work related injury [had] not yet resolved”, Dr Harrington estimated “a timeframe of 6 months from the incident in July” for her back injury to “settle down”.[12]
[12] Reply p 35.
However, that had not occurred at the time he next examined the applicant on 12 January 2022[13] when she continued to be symptomatic. The specialist considered “the presentation of complaints would be permanent” in circumstances where treatment to that time had been unsuccessful.[14] He had been provided with the MRI scan report of Dr Quadrelli dated
[13] According to his supplementary report dated 23 March 2022.
[14] Reply p 38.
[15] ALAD p 82, report of MRI scan on 11 November 2021 reviewed by Dr Scott Quadrelli, radiologist.
[16] Reply p 42.
11 November 2021 that cited “possible sclerosis” in the sacroiliac joints,[15] and Dr Harrington considered that to be “consistent with pre-existing age-related changes without any untoward features”.[16] No explanation was provided about why he considered sclerosis might be age-related rather than arising for some other reason, including with respect to any connection to the workplace injury.
In his 13 January 2022 report following that examination, Dr Harrington noted the applicant had received:[17]
“… a bilateral medical branch block at L4 to S1 on 6 May 2021. She then had a right L4-S1 medial branch block on 16 July 2021; both administered by Dr Volschenk. She says the treatment has not been efficacious.
Her back pain is lower lumbar, mainly left sided. There are no bladder or bowel problems. Lately, she has developed more pain down her left leg, which doesn’t extend past the knee.”
[17] Reply p 41.
Dr Harrington considered the “work related injury 18 months ago [had] now resolved” and that the workplace incident “caused an aggravation of underlying pathology however any work related aggravation [had] ceased”. He did not however provide any further explanation for that assessment, such as why the applicant’s back pain that commenced at the time of the workplace injury and continued unabated was by then said to be unrelated to that injury.
In his 29 August 2023 report, Dr Harrington referred to bone scan and MRI reports, and noted “some uptake in both sacroiliac joints, the left a bit worse than the right”, but that there did not “seem to be any pain from the sacroiliac joint”.[18] Dr Harrington went on to opine that as the applicant’s pain was “lower lumbar, on both sides, it doesn’t seem to be consistent with sacroiliitis” and if there was “an inflammatory component, it obviously wouldn’t be work related.”[19] He did not go on to explain how that was obvious or why it was unrelated to the work injury where issues with the sacroiliac joints had been identified in the scans, with one side worse than the other.
[18] Reply p 48.
[19] Reply p 49.
By the time of his consultation with the applicant on 4 March 2025,[20] Dr Harrington noted ongoing lower lumbar pain, “more so on the left side than the right, with some radiation into her buttock”. He referred to a bone scan that showed “some changes in her sacroiliac joints”, and noted the applicant had received injections into those joints by way of treatment that “did not last”. In his opinion about any work-related component, Dr Harrington did not believe the applicant had:[21]
“… sustained an injury to her sacroiliac joint. The bone scan does not distinguish between a fracture or arthritis. Given it is still hot, in time down the track, it is due to the intrinsic nature of her degenerative changes, which are constitutional, not due to any injury or fracture.”
[20] Report dated 24 March 2025, Reply p 52.
[21] Reply p 55.
He did not outline in any detail the reason why he considered the sacroiliac joint condition to be “degenerative” and “constitutional” rather than potentially related to the lower back injury. In the absence of a proper explanation, it is not possible to determine with any degree of certainty how he reached that conclusion.
Dr Harrington recorded the applicant had “played competitive badminton for a long time” and that while she had never had any injuries during that period, he considered there were “always constitutional factors involved with symptomatic spondylosis”,[22] but did not explain the basis for that statement. He thought the changes seen on the bone scan were:[23]
“… indicative of not an injury, but of arthritis, given that there was reaction some three years down the track. Also, the injections were not therapeutic, and thirdly, she had pain on a very light touch over each sacroiliac joint, more on the left side.”
[22] Reply p 55.
[23] Reply p 56.
He did not however engage with why any of those three considerations referenced would indicate arthritis as the likely cause of the sacroiliac joint pain rather than being related to the injury sustained by the applicant on 7 July 2020. In expressing his view about there being a “reaction” only after three years, Dr Harrington did not address the applicant’s persistent left side pain that had been reported as early as within a few months of the 7 July 2020 incident, such as the report of Dr Ferch on 3 September 2020 or that of Dr Volschenk from
16 August 2021, and whether it may have been a relevant indicator of sacroiliac joint injury at those times.

Dr Alan Hopcroft

The applicant qualified Dr Alan Hopcroft, orthopaedic surgeon, to conduct an independent medical examination of her injury and he provided reports on 10 August 2022,
1 September 2022 and 5 December 2024.
In his first report,[24] Dr Hopcroft reviewed the radiological findings of Dr Quadrelli on
11 November 2021 regarding the applicant’s sacroiliac joints and noted the applicant “had some sclerosis in her sacroiliac joints, and on clinical examination … she had quite marked pain localised to the left sacroiliac joint”. He also referred to the applicant’s pre-injury activities as “playing competition badminton twice-weekly, attending a gym twice-weekly” as well as using her pool in the summer months two days a week, mowing her lawns, gardening (including hedging) and regularly walking for an hour and a half.[25] The applicant told
[24] ARD p 9.
[25] ARD p 10.
[26] ARD p 10.
Dr Hopcroft that she did not recall any back injury, episode of low back pain or sciatica prior to the workplace incident.[26]
Dr Hopcroft cited the 13 January 2022 opinion of Dr Harrington that the applicant’s “work related injury 18 months ago [was] now resolved” and rejoined that it seemed to “ignore the fact that [the applicant was] still in extreme distress with back pain, restricted movement and ongoing left-sided sciatica”.[27] Dr Hopcroft formed the opinion that the applicant:[28]
“…suffered a significant injury to her lumbar spine in the work-related accident of 07 July 2020, having never had back pain or a back injury prior to that date.
She has ongoing and significant low back pain with restriction in movement and left-sided sciatica but at this consultation also exhibited quite marked localised pain at the left sacroiliac joint.
With those findings it is my opinion it is mandatory that this patient undergo an isotope uptake scan to determine which exactly is the most significant area of her back causing troubles, and I believe she is also a candidate for a diagnostic hydrocortisone and local anaesthetic injection into her left sacroiliac joint in order to determine more accurately her diagnoses.
I will be in a position to report back to you when that investigation is undertaken…”
[27] ARD p 8.
[28] ARD p 12.
The applicant underwent bone and CT scans on 22 August 2022 when anomalies were identified in her lumbar spine and pelvis, at the “right L4-5 and right L5-S1 (very mild) facet joints” as well as “[m]ild uptake within both sacroiliac joints (R>L)” along with “[a]rthritic changes within both sacroiliac joints (R>L)” according to the radiologist, Dr Nadya Kisiel.[29] She then received a CT guided injection to the left sacroiliac joint on 30 August 2022, conducted by Dr Houman Ebrahimi.[30]
[29] ARD pp 18 and 20.
[30] ARD p 22.
On 1 September 2022, Dr Hopcroft reported:
“So convinced was I that this patient should have the sacroiliac joints investigated further I requested a diagnostic therapeutic injection of her painful left sacroiliac joint, and that was undertaken on 30 August 2022 with CT guidance (copy enclosed), and I am yet to hear whether she has had a good result from that procedure.
However, I can now add that I have followed this patient up with a phone call and she is able to advise that the diagnostic component of the diagnostic therapeutic injection into her left sacroiliac joint has worked perfectly and she has no pain in her back and is very happy with the outcome.
It would appear, therefore, that it is safe to conclude that in the injury that this patient suffered in the course of her work on 07 July 2020 not only damaged her lumbar spine but also severely wrenched the sacroiliac joint, and that has contributed significantly to her ongoing pain syndrome.
I can now advise that the outcome from that injection is variable and may give the patient six months of significant improvement in her sacroiliac joint pain, or may need repeated from time to time, no more often than two or maximum three times per year.
…
This patient suffered a significant injury to her lumbosacral spine and sacroiliac joints in the work-related accident of 07 July 2020, and has ongoing significant low back pain with left-sided sciatic symptoms along with a wrenching injury of the sacroiliac joint which will require monitoring by her general practitioner into the future.
It is my opinion the injury suffered in the course of her work was the substantial contributing factor to her current ongoing significant spinal dysfunction, and I believe she will be compromised in any attempt to return to repetitive bending and lifting work such as was carried on in her pre-injury employment, and she would be advised therefore to seek lighter work into the future.
She is suffering from lumbar spondylosis with a secondary non-identifiable radiculopathy, and a wrenching injury of the sacroiliac joint which has almost certainly aggravated pre-existent asymptomatic osteoarthritis of her sacroiliac joints. (See report of the uptake scan.)
I believe her prognosis is guarded and the outcome from her left sacroiliac joint injection needs review by her general practitioner over the next 1 – 2 months to see how significant is the control of her back pain.”

It was Dr Hopcroft’s concluded view that the applicant “wrenched” her sacroiliac joints on
[31] ARD p 24.
7 July 2020 at the time of her back injury. In his final report of 5 December 2024, the specialist referred to the earlier injections into the applicant’s left sacroiliac joint that provided “an excellent result of pain control” but the “back pain syndrome recurred with increasing and severe bilateral sacroiliac joint pain and with continuing low back pain radiating into her posterior left thigh”.[31]
On examination at that time, the applicant was found to have “tenderness significantly localised to the sacroiliac joints bilaterally and over her lumbar spine in the midline and has difficulty extending her back to recreate the normal lumbar lordotic curve”.[32] Dr Hopcroft determined the applicant to be “significantly incapacitated by aggravation of her lumbar spondylitic condition and the development of significant pain in her sacroiliac joints bilaterally, almost certainly from destabilisation of those two joints”. He considered there was “[d]eteriorating pain in both sacroiliac joints equivalent to direct damage (such as fractures) to each joint”.[33]
[32] ARD p 26.
[33] ARD p 27.

Findings and reasons

The Commission previously heard and determined a dispute between the parties. Injury to the applicant’s sacroiliac joints was not in issue in those proceedings, as was made clear by the presiding Member.[34] There has been no prior determination on whether the applicant’s sacroiliac joints were injured on 7 July 2020.
[34] ALAD p 19 at [109].
The respondent argued the opinion of Dr Hopcroft should not be accepted as independent since he involved himself in the treatment of the applicant’s sacroiliac joint injury by referring her for guided sacroiliac joint injection. A similar submission was made in the earlier proceedings before the Commission and Dr Hopcroft’s conduct was the subject of comment by the presiding Member at that time.[35] The determination in those proceedings was the subject of an appeal, but that Dr Hopcroft’s evidence was not rejected in the prior proceedings for reasons of independence was not a ground of appeal.
[35] ALAD p 16 at [89] and [90].
The referral for treatment of the applicant made by Dr Hopcroft was not however considered to be a matter that impugned his expert opinion as to the nature of injury to the extent his evidence was rejected, in either the earlier proceedings or its appeal heard by the Commission President.
There nonetheless appears to have been some infringement of medico-legal conduct guidelines by Dr Hopcroft in referring the applicant for treatment. It is relevant to consider whether that may have impacted his independence. It was identified by the Member in the earlier proceedings the referral was inappropriate, and I accept that it was. I do not however consider that it impinged upon Dr Hopcroft’s examination of the applicant, later findings and his ultimate opinion, which was clearly made on the objective evidence. It appears the referred treatment by way of guided injection confirmed his view as to the nature of the applicant’s condition, that is, sacroiliac joint injury. I am comfortably satisfied that
Dr Hopcroft’s opinion was based upon his observations of the applicant following examination, the radiological reports and the undisputed nature of the precipitating event that caused her back injury on 7 July 2020. These were all objective considerations and unlikely to have been affected by his referral for the guided injection.
Dr Harrington accepted the applicant injured her back on 7 July 2020 but later formed the opinion, without any proper explanation being provided, that any ongoing symptoms, such as persistent pain, were unrelated to the injurious event. It seems that by 13 January 2022 he considered the applicant’s problems to be age-related, that is “degenerative” or otherwise “constitutional”. In coming to that assessment though, which was a view continued into his later reports, Dr Harrington failed to adequately explain why age-related factors were more likely than the known injury to be the cause of the applicant continuing pain and restrictions.
Dr Harrington did not engage with relevant matters such as the apparently normal state of the applicant’s back and sacroiliac joints prior to 7 July 2020 and the significant change after the event on that date. He did not address the applicant’s previous active lifestyle, regularly playing sport and exercising unaffected by back or sacroiliac joint pain, that ceased immediately after being injured at work. As was highlighted by Dr Hopcroft, in coming to his assessment the applicant’s “work related injury 18 months ago [had] resolved”, Dr Harrington apparently gave no consideration to her continuing “extreme distress with back pain, restricted movement and ongoing left-sided sciatica”. It is difficult to make sense of
Dr Harrington’s findings about that issue, and on the nature of her sacroiliac joint condition generally, because a proper explanation has not been given for his reasoning in reaching those conclusions.
As best can be ascertained, Dr Harrington seems to have become focused on age-related deterioration to the exclusion of the possibility of a contribution by the known injurious event, but without any cogent explanation as to why he formed that view. It is also clear that sacroiliac joint sclerosis was identified as a possibility, yet that issue was not addressed in any detail by Dr Harrington, other than to dismiss it as age-related, about how it may have arisen, that is, could it have been the result of prior injury? An answer cannot be determined from his reporting.
While it may be affected by the appearance of not being entirely independent given his involvement in her treatment, I prefer the opinion of Dr Hopcroft in the overall circumstances. He offers a straightforward and logical explanation of the likely cause of the applicant’s sacroiliac joint injury based on known, undisputed, facts. She likely “wrenched” that joint on 7 July 2020 at the time of injuring her back, according to Dr Hopcroft, where the mechanism of sudden forced movement caused injury.
The applicant reported left-sided specific pain from shortly after her 7 July 2020 injury, as referred to in the 31 July 2020 MRI scan report of Dr Moreira, next by Dr Ferch in his
3 September 2020 report and then Dr Volschenk on 16 August 2021. Whether there may have been some connection to sacroiliac joint injury is not clear because it does not seem to have been investigated at those times. It is evident though the applicant did experience pain of such significance that a referral to a pain specialist, Dr Volschenk, became necessary. That sacroiliac joint injury was not identified or investigated earlier does not mean that it did not occur on 7 July 2020, or was not present thereafter, but perhaps went undiagnosed at the time.
It appears management of the pain was the priority immediately following injury. Although there was no specific investigation of the sacroiliac joints at the time, there was indication of a problem in those joints by 11 November 2021 when “possible sclerosis” was identified by Dr Quadrelli. The cause of that sclerosis was not the subject of detailed discussion by either medical expert qualified in this matter, but Dr Hopcroft seems to link sclerosis to the injury on 7 July 2020.[36] In dismissing sclerosis as being age-related, Dr Harrington did not explain why it could not have arisen from another cause, such as earlier injury or something else.
[36] ARD p 9.
Dr Harrington also rejects the idea the applicant injured her sacroiliac joints on 7 July 2020 and is of the view it is “constitutional” or something similar whereas Dr Hopcroft considers a “wrenching” injury occurred on that date. I accept the latter as more likely based upon their respective explanations and the nature of the applicant’s injury. The nature of the incident described by the applicant is consistent with her sudden application of force and the type of injury identified by Dr Hopcroft.
The applicant had been physically active prior to injury and had no prior problems with either her lower back or sacroiliac joints. That changed after 7 July 2020, both became problematic, and they have been the source of ongoing pain. The fact one may have been diagnosed sometime after the other does not mean they did not arise from the same event. The evidence indicates she has not fully recovered from the effects of the injury and at no stage returned to the pre-injury state of health.
In May v Military Rehabilitation and Compensation Commission the full bench of the Federal Court considered [my emphasis]:[37]
“… Medical evidence or opinion will, of course, be relevant; but it may not be determinative. The place of common-sense lay inference from a clear sequence of events is to be recognised, as long as any such inference is not denied by medical science. In any particular case there may be a consideration of whether there is a harmful effect on the body, a disturbance of the normal physiological state producing physical incapacity, a sudden or identifiable or distinct physiological change, whether there is an event or incident or clinical diagnosis to explain such change, and such considerations will be made against a background of a distinction in the common use of language between getting hurt and becoming sick. The circumstances and the facts will influence what weight such considerations are given in the drawing of a factual conclusion in any particular case.”
[37] [2015] FCAFC 93 at [118].
The applicant suffered injury on 7 July 2020 in the course of employment with the respondent and her sacroiliac joints were part of the injury; that is the most probable explanation for the genesis of the sacroiliac joint injury on the available evidence. While the view of Dr Harrington is noted as to the condition being age-related, a commonsense evaluation of the facts points to the 7 July 2020 injury as the most likely cause. She had been in good health and active until that time. Only after then did her sacroiliac joints become problematic. It is the conclusion reached by Dr Hopcroft and is accepted because that is consistent with the “clear sequence of events”.
The fact it was not identified as a problem until later might be explained by the regional nature of the injury generally, it is noted the location of the sacroiliac joints are proximate to the lumbar spine and a lay observer, such as the applicant was, may not have known any difference. Although it is clear that once the joints were identified as a specific source of pain by Dr Hopcroft, it became the subject of a separate diagnosis. A diagnosis that was not made by Dr Harrington before then, but that he did not dispute after it came to light. This is not to discount that there may have been age-related degeneration in the applicant’s sacroiliac joints, as contended by Dr Harrington, but it is more likely that not she sustained a distinct injury to those joints (apparently the left more substantially than the right) in the course of the 7 July 2020 incident.
I have considered the evidence and on balance have a sense of actual persuasion the applicant was injured in the manner that she contends. I am reasonably satisfied that there was sudden identifiable pathological change or disturbance in the state of the applicant’s sacroiliac joints when she injured her back at work on 7 July 2020. She experienced immediate pain thereafter, which was left side predominate, and when assessed overall the evidence is not inconsistent with discrete sacroiliac joint injury at that time. The definition of injury at s 4(a) of the 1987 Act is satisfied accordingly. That event was more likely than not a substantial contributing factor to the cause of the applicant’s sacroiliac joint condition.
Assessments of impairment arising from that injury and to her lower back otherwise have been provided by Dr Harrington and Dr Hopcroft. Those assessments differ as to opinion on the applicant’s level of whole person impairment. A medical dispute arises in the circumstances according to the definition at s 319(c) of the 1998 Act. It is necessary for the matter to be referred for medical assessment in accordance with s 322 of the 1998 Act.

SUMMARY

The applicant suffered injury to her lumbar spine and sacroiliac joints at work on 7 July 2020. The extent of impairment arising from those injuries requires medical assessment and the matter is referred accordingly.

[2025] NSWPIC 451

2 September 2025