Maseyk v Racing NSW

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Maseyk v Racing NSW [2022] NSWPIC 633
APPLICANT:	Melvyn Maseyk
RESPONDENT:	Paul Perry Horse Training Pty Ltd
Member:	John Isaksen
DATE OF DECISION:	16 November 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments and order sought for the payment of future medical treatment; whether the worker continues to suffer the effects of the work injury to his lower back; whether the worker has no current work capacity or has an ability to earn in suitable employment; reference to Wollongong Nursing Home v Dewar and Popal v Myer Holdings P/L; Held – the worker continues to suffer the effects of the work injury to his lower back; the worker has had no current work capacity since 24 July 2021; award of weekly payments pursuant to section 37 (1) of the Workers Compensation Act 1987; the respondent to pay for radiofrequency ablation therapy recommended by the applicant’s treating specialist.
determinations made:	1. The applicant continues to suffer the effects of an injury to his lumbar spine and left shoulder which was sustained while in the course of his employment with the respondent on 23 October 2020. 2. The applicant has had no current work capacity from 24 July 2021 as a result of the injury sustained to his lumbar spine and left shoulder in the course of his employment with the respondent on 23 October 2020. 3. The radio frequency ablation therapy proposed by Dr Salaria is reasonably necessary as a result of the injury sustained by the applicant on 23 October 2020.
ORDERS MADE:	1. The respondent is to pay the applicant weekly payments of compensation pursuant to s 37 (1) of the Workers Compensation Act 1987 as follows: a) $1,161.45 per week from 24 July 2021 to 30 September 2021; b) $1,175.30 per week from 1 October 2021 to 31 March 2022; c) $1,196.90 per week from 1 April 2022 to 30 September 2022, and d) $1,237.25 per week from 1 October 2022 to date and continuing. 2. Pursuant to s 60 (5) and s 61 (4A) of the Workers Compensation Act 1987, the respondent is to pay for the costs of the radio frequency ablation therapy proposed by Dr Salaria.

STATEMENT OF REASONS

BACKGROUND

The applicant in these proceedings, Melvyn Maseyk, sustained an injury to his lower back and left shoulder on 23 October 2020 while employed as a trackwork rider for the respondent, Paul Perry Horse Training Pty Ltd.
The applicant states he was riding a horse to a stable when the horse suddenly flipped over, and the applicant fell awkwardly and the horse landed on top of him.
The respondent concedes that the applicant did sustain injury to his lower back and left shoulder on 23 October 2020, and the applicant was paid weekly payments of compensation from January 2021 until 23 July 2021.
Racing NSW issued a dispute notice on behalf of the respondent on 9 July 2021 wherein it disputed liability on the grounds that the applicant’s current condition was not connected to the injury of 23 October 2020.
The applicant claims that he has had no current work capacity since 23 July 2021 and claims weekly payments of compensation from that date. The applicant also seeks an order pursuant to s 60 (5) of the Workers Compensation Act 1987 (the 1987 Act) that the respondent meet the costs of the following treatment for his lower back:
(a)    radio frequency ablation therapy;
(b)    CT guided cortisone injections, and
(c)    an exercise program.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant continues to suffer the effects of the work injury sustained in the course of his employment with the respondent on 23 October 2020 (s 4 of the 1987 Act);
(b)    the extent of any incapacity suffered by the applicant as a result of an injury to the lower back and left shoulder (ss 32A, 33 and 37 of the 1987 Act), and
(c)    whether the proposed treatment of radio frequency ablation therapy, CT guided cortisone injections and/or an exercise program is reasonably necessary medical treatment as a result of the injury to the applicant’s lower back (s 60 of the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

The parties attended a conference and hearing on 10 November 2022. 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.
Ms Goodman appeared for the applicant, instructed by Ms Parisis. Mr Stockley appeared for the respondent, instructed by Ms Corry.
The hearing was conducted by video and was recorded.
Ms Goodman confirmed that the claim of injury was confined to the incident on
23 October 2020, which the applicant claims to have caused an aggravation of an underlying degenerative condition, and that a claim by way of a disease due to the nature and conditions of the applicant’s employment was not being pursued.
The applicant’s pre-injury average weekly earnings (PIAWE) were agreed at $1,411.19.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the applicant on 3 November 2022, except for a ‘Fee Estimate’ from Dr Salaria dated 23 September 2022, and
(d)    Application to Admit Late Documents filed by the respondent on
3 November 2022.

Oral evidence

There was no application to adduce oral evidence or to cross examine the applicant.

FINDINGS AND REASONS

Whether the applicant continues to suffer from the effects of the injury to his lower back and left shoulder which was sustained on 23 October 2020

The applicant’s evidence

The applicant has provided a statement dated 11 August 2022.
The applicant states that he came to Australia from India in 2015. He states that he started work as a professional jockey in 2001. He states that he has never done any type of work outside of the horse riding industry.
The applicant states that he has had falls from horses in the past and injured various parts of his body. He states that in the past he has occasionally suffered back pain due to falls or general strains, but he has always managed to recover from that back pain after some rest and some painkillers. He states that he was always able to continue riding and that: “As a rider, we always tried to ignore our injuries”.
The applicant states on 23 October 2020 he was riding a horse to a stable when the horse suddenly flipped over, causing the applicant to fall awkwardly and the horse fell onto him. He states that he felt severe pain in his back, with pain going into his left leg, and he also had pain in his left shoulder.
The applicant states that he continued to work but was in severe pain, and he took painkillers to manage the pain. He states that he thought his back pain would improve over the Christmas period when he had a short break, but he stopped work in January 2021 because the pain was unbearable.
The applicant states that he still experiences a considerable amount of pain in his lower back. He states that he rates the pain most days at 10 out of 10. He states that he struggles to stand, sit, walk or lie down for too long. He states that driving for too long aggravates his back pain. The applicant states that he has trouble falling asleep and staying asleep, so that he is very tired during the day.
The applicant states that he has pain in his left shoulder, but it is minimal compared to the severity of his back pain.

The medical evidence

There are clinical notes in evidence from Family Circle Medical Practice at Hamilton for a period from 15 May 2019 to 22 September 2021.
An entry on 24 May 2019 is for a horse riding medical assessment. That entry corresponds with a ‘Racing NSW – Medical History and Examination Record’ completed by Dr Kumar on that day which answers ‘No’ to whether the applicant has back ache, back injuries or spinal problems. The form also certifies that the applicant is fit without restriction for a horse riding licence.
There appears to be no reference in the notes to lower back problems until 23 June 2020, when it is recorded that the applicant has had intermittent lumbar sacral pain for the past two years and that it was worse in the last five months. There is a note of lumbar sacral tenderness. There is a record of a referral for a CT scan of the thoraco-lumbar spine.
An entry on 29 June 2020 refers to an improvement in lumbar sacral pain, although there is still tenderness found at the L4/5 level. That entry also refers to NSW racing forms being completed, although there is no further form for Racing NSW in the material before the Commission.
There are further entries on 15 July 2020 and 4 August 2020 of lumbar pain. The entry on
4 August 2020 refers to “Results of CT Lumber Spine, Imaging Report” but I could not locate nor was I directed to any report for this scan.
The next entry on 3 February 2021 includes:
“Lumbar sacral pain, worse when riding 8 months
Worse after recent fall oct 2020
…..
Recurrent falls in the past from horse, no neuropathy
Lumbar sacral pain 2 yrs, no improvement with steroid inj”
Dr Salaria, orthopaedic surgeon, initially sees the applicant on 23 February 2021. In a report of the same date, Dr Salaria writes that the applicant’s back pain started after a fall off a horse on 23 October 2020 when the horse fell backwards and then onto the applicant. He records that the applicant had back and leg pain but persevered and continued with work, but the applicant had to stop work due to persisting pain on 31 January 2021.
Dr Salaria found the applicant’s back extension to be restricted and painful on examination. He noted that scans revealed L4/5 and L5/S1 disc protrusions along with disc degenerative changes. Dr Salaria concludes:
“His persistent pain would be explained by the aggravation of L4-5, LS/S1 disc degenerative disease due to the spine sprain and local trauma from a bad fall during his work and as it has not settled down with simple non operative treatment measures of rest, anti-inflammatories and local steroid injections he may require surgery - L4-5, LS/S1 anterior lumbar interbody fusion surgery but we have discussed a trial of L4-5 and LS/S1 bilateral facet joint radiofrequency ablation therapy first. He would prefer to try the RFA and I will seek Workcover approval for this day procedure.”
Dr Salaria has also provided a report at the request of the applicant’s solicitors dated
20 April 2022. Dr Salaria writes:
“…the accident on 23rd October 2020, when the horse had fallen on his back, is the main cause of his ongoing back pain, stiffness, and disability.
He had been doing this physically demanding job of training horses without restrictions until this accident. He had passed the annual medical checks and was not on regular pain medications or restricted duties.
Prior to the accident, he had only one episode of thoracic region back pain which had settled down. There is no record of chronic lumbar back pain which had been bad enough to stop him from working and he had not been on regular analgesics.
He had been training 15-16 horses daily until this accident thus did not have any disability due to the normal age-related degenerative changes in the spine. The accident has exacerbated and aggravated the normal aging degenerative changes and is the main cause of the chronic back pain and stiffness.”
Dr Salaria also writes later in that report, in response to an opinion from A/Prof Miniter who has provided reports at the request of the respondent, that A/Prof Minter:
“….has failed to consider the repetitive trauma to the lower back in physically demanding horse training job and the effect of a major accident on the fitness of someone who has already overworked lumbar spine. Although Mr Maseyk, fortunately, had not suffered a major paralysing spine injury or fracture, the major accidents like a horse falling on someone, can cause chronic back pain and dysfunction due to the severe soft tissues and joints sprain and strain.”
Professor Ghabrial, orthopaedic and spinal surgeon, has provided a report at the request of the applicant dated 1 November 2021.
Prof Ghabrial obtained some different details to that recorded by Dr Salaria. Prof Ghabrial records that the applicant developed back pain in April 2020 when riding 15 to 16 horses each day. He records that the applicant developed severe pain on 23 October 2020 when he fell from a horse and the horse fell on him. He writes that the applicant has not worked since.
Prof Ghabrial found a positive sciatic stretch with both legs and mild to moderate lumbar spasm on examination of the applicant.
Prof Ghabrial concludes that the applicant sustained a severe injury to his lower back on
23 October 2020. He writes that the clinical assessment and investigations suggest an injury to the L4/5 and L5/S1 discs with protrusions to both discs. Prof Ghabrial opines:
“From the history given to me by Mr Maseyk, I believe that the injury on the 23 October 2020 is considered to be the main contributing factor to the present clinical features, disabilities and impairment.”
A/Prof Miniter, orthopaedic surgeon, has provided reports at the request of the respondent dated 14 April 2021, 17 June 2021 and 16 October 2022.
A/Prof Miniter does not take any specific details of the incident on 23 October 2020, other than to write that the applicant had a fall in October 2020 and after this time he has effectively not returned to work. He writes that “what is important” is that over the years the applicant has had a number of falls from horses.
A/Prof Miniter writes that an MRI scan demonstrates degenerative disease at the L4/5 and L5/S1 levels. He considers that the applicant “has genuine pathology” that has been identified on the scans.
A/Prof Miniter writes that the applicant has genuine long-standing lower back pain but finds it hard to associate this with specific episodes during 2020 while the applicant was riding. A/Prof Miniter opines:
“In my opinion, it is impossible to associate his current presentation with the alleged workplace accidents. It is more likely than not that this is a long-term accumulation of issues and whilst he does have a genuine pathology identified at the L4/5 level on the MRI scan, possibly the cause of his ongoing discomfort, it cannot be sheeted home purely to the injuries which have occurred in 2020. This matter is clearly a long-standing problem.”
A/Prof Minter also notes “a significant lapse” between the claimed injuries and the applicant’s eventual cessation from work, but he believes that the applicant’s condition “is an accumulation of issues relating to his track riding over many years”.
In a further report dated 17 June 2021, A/Prof Minter confirms that he cannot associate the applicant’s presentation with the frank injury which occurred in October 2020, and
A/Prof Miniter concludes that he does not believe that the applicant’s fall on that date “is a meaningful contributor to his current presentation”.

Submissions

Ms Goodman for the applicant acknowledges that her client complained of lower back pain in the months leading up to the incident in October 2020, and there is a record made by the applicant’s general practitioner of intermittent lower back pain for some two years prior to the incident in October 2020. However, Ms Goodman points out that the applicant did not require any time off work for any lower back problems until the incident in October 2020, and the applicant’s general practitioners certified in 2019 and 2020 in forms required from Racing NSW that the applicant had sufficient physical strength to ride racehorses.
Ms Goodman submits that it was the incident on 23 October 2020 which marked a substantial change for the applicant from having intermittent lower back problems to having chronic lower back pain, and that the Commission would be satisfied that the injury sustained on 23 October 2020 is the cause of the applicant’s inability to continue to work as a trackwork rider and the need for the medical treatment recommended by Dr Salaria.
Mr Stockley for the respondent submits that it is implausible that the incident on
23 October 2020 was so significant and severe as alleged by the applicant when it took over three months for the applicant to seek medical treatment. Instead, the more likely scenario from a review of the contemporaneous medical records is that the applicant was becoming increasingly troubled by lower back pain over some years to the point where the applicant ceased work not immediately following the incident on 23 October 2020 but some months later.
Mr Stockley submits that whether the “long term accumulation of issues” referred to by
A/Prof Miniter is the cause of the applicant’s current condition is irrelevant to the determination of this dispute because the applicant has confirmed that he does not rely upon the nature and conditions of his employment but only the incident on 23 October 2020, which he claims to have aggravated and continues to aggravate a degenerative lower back condition.
Mr Stockley submits that Dr Salaria does not provide any insight into the nature of the aggravation of the applicant’s lower back condition due to the incident in October 2020 and why that is the cause of symptoms now, as opposed to the underlying degenerative conditions affecting his lower back. Mr Stockley submits that the opinion of A/Prof Miniter should be preferred because A/Prof Miniter explains why the incident in October 2020 is not the cause of the applicant’s ongoing complaints in his lower back.

Determination

The applicant understandably relies very much on the opinion of his treating specialist,
Dr Salaria, as to the cause of the ongoing problems he is having with his lower back. When Dr Salaria writes back to the applicant’s general practitioner after his initial consultation, he opines that the applicant’s persistent pain would be explained by the aggravation of L4/5 and LS/S1 disc degenerative disease due to the spine sprain and trauma from the fall in
October 2020.
However, I consider there is a limitation to that initial opinion provided by Dr Salaria because there is no reference to any lower back pain experienced by the applicant before that fall, whereas the applicant’s general practitioners had recorded by the applicant having intermittent back pain for the past two years and that this had worsened during the first half of 2020. Indeed, Dr Salaria writes that the applicant’s back pain “started after a fall off the horse…on 23 October 2020”.
It would appear that Dr Salaria was provided with further information, or consulted his own notes further, for the purposes of the report to the applicant’s solicitors dated 20 April 2022. In that report Dr Salaria writes that the applicant trained 15 to 17 horses each day until the incident in October 2020. He understands it is a physically demanding job and accepts that the applicant would have an “overworked lumbar spine”. Dr Salaria notes that the applicant had not taken any time off work for lower back pain prior to the incident in October 2020.
Having made those references to the applicant’s medical and employment history, Dr Salaria confirms the opinion he provides in his initial report when he writes that the “accident has exacerbated and aggravated the normal ageing degenerative changes and is the main cause of the chronic back pain and stiffness”.
I do not agree with the submission made by Mr Stockley that Dr Salaria does not provide any insight into the nature of the aggravation of the applicant’s lower back condition due to the incident in October 2020 and why this remains the cause of his symptoms. In my view,
Dr Salaria has provided a proper explanation for his opinion his report dated 20 April 2022 with the benefit of his understanding of the applicant’s past medical and employment history.

The opinion of Dr Salaria is supported by Prof Ghabrial. Prof Ghabrial is made aware that the applicant developed back pain in April 2020, but nonetheless concludes that it is the injury on 23 October 2020 which is the main contributing factor to the applicant’s present clinical features and disabilities.
There might be a cause of concern if the applicant was to rely solely on the opinion of Prof Ghabrial on the issue of causation. Prof Ghabrial does not explain why the injury on 23 October 2020 is the main contributing factor to the applicant’s present clinical features and disabilities when both Dr Salaria and A/Prof Miniter consider the applicant has degenerative or long term pathology in the lumbar spine.
Prof Ghabrial’s opinion does not appear to meet the requirements referred to by McColl JA (Mason P and Beazley JA agreeing) in Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 (Hevi Lift) at [84] that: “It has been long been the case that a court cannot be expected to, and should not, act upon an expert opinion the basis for which is not explained by the witness expressing it”.
However, it is the opinion of the applicant’s treating specialist, with some assistance from Prof Ghabrial, which allows me to be satisfied that it is the incident on 23 October 2020 which is the cause of the ongoing pain and disability that the applicant has in his lower back.
I prefer the opinions of Dr Salaria and Prof Ghabrial over that provided by A/Prof Miniter. A/Prof Miniter does not record any details of the incident on 23 October 2020. He does not record the history taken by both Dr Salaria and Prof Ghabrial of the applicant not only falling off a horse, but the horse then falling onto the applicant. A/Prof Miniter merely records that the applicant “had a fall”.
The respondent has not provided any evidence to dispute the applicant’s claim that the horse fell onto him. There is no evidence provided by Shane Tearle, whom the applicant names as a witness to the incident, as to any different version of events on 23 October 2020.
Despite what could only have been significant blows to the applicant’s body on
23 October 2020 when the applicant both fell from a horse and then have that horse fall onto him, A/Prof Miniter does not engage in a consideration as to whether what actually occurred in that incident is now the cause of the applicant’s ongoing problems with his lower back.
A/Prof Miniter opines that “it is impossible to associate his current presentation with the alleged workplace accidents”, but the applicant claims to have had only one incident during the course of 2020 which has caused an injury to his back. The clinical notes from the applicant’s general practitioners do not record any other frank injury to the lower back between May 2019 and 23 October 2020. Those notes only refer to developing pain in the lower back in the first half of 2020 and some intermittent pain before then.
I find I cannot accept the categorical statement made by A/Prof Miniter that it is “impossible to associate his current presentation with the alleged workplace accidents” when
A/Prof Miniter does not specify what those “alleged workplace accidents” might be, other than the incident on 23 October 2020.
Furthermore, A/Prof Miniter has not engaged in a consideration of whether the only known frank injury that the applicant did sustain to his lower back during 2020 has been the cause of the applicant’s ongoing problems with his lower back, whereas that issue has been considered by Dr Salaria.
Prof Ghabrial records that the applicant sustained the injury on 23 October 2020 and has not worked since, which is not consistent with the applicant’s evidence. A/Prof Minter considers the “significant lapse” between the fall in October 2020 and the applicant’s cessation of work in January 2021 is indicative of long term lower back pathology rather than the applicant’s “claimed injuries”.
Dr Salaria records that the applicant continued on working for two months following the incident in October 2020, but nonetheless accepts that the applicant worked on in persistent pain and that it remains the incident on 23 October 2020 which is the cause of the applicant’s ongoing lower back problems.
I do not accept the submission made by Mr Stockley that it is implausible that the incident on 23 October 2020 could have been so significant and severe as alleged by the applicant when it took over three months for the applicant to seek medical treatment. The available evidence supports the statement made by the applicant that: “As a rider, we always tried to ignore our injuries”.
The applicant continued on track riding during 2020 despite the records made at Family Circle Medical Centre that he was developing lower back pain and had experienced intermittent lower back pain for the past two years. The applicant’s general practitioners were prepared to complete forms required by Racing NSW which allowed the applicant to continue professional horse riding during 2019 and 2020. I accept the submission made by
Ms Goodman that in the absence of a ‘Medical History and Examination Record’ for Racing NSW for 2020, it can be inferred that the note made by Dr Stephen on 29 June 2020 of “NSW racing forms filled” is confirmation that the applicant remained fit to be issued with a licence to ride.
The applicant also lists several other injuries in the past to other parts of his body including a broken right arm and a fractured right thumb, but he was able to continue to undertake horse riding once he had sufficiently recovered from those injuries.
From the evidence which I have referred to, I consider it is plausible and I accept that the applicant continued to work following the injury he sustained on 23 October 2020 despite ongoing lower back pain, until he found he could no longer bear the pain and he sought medical treatment.
From my review of the evidence and the expert opinions, I am satisfied that the applicant continues to suffer the effects of the injury he sustained to his lower back and left shoulder while in the course of his employment with the respondent on 23 October 2020.

The claim for weekly payments of compensation

The applicant’s evidence

The applicant states that he has never done any type of work outside of the horse riding industry.
The applicant states that he is limited by his work experience and education, and he would have difficulty in performing a desk or office job.

The medical evidence

There are Certificates of Capacity issued by Dr Stephen from 3 February 2021 to 1 July 2021 which certify the applicant as being fit for four hours of work per day for three days per week, with no lifting above 10 kilograms and bending, pushing, sitting and driving “as pain allows”. The Certificates also allow for riding a horse “as pain allows”.
It was submitted by Ms Goodman, on instructions received from the applicant, that he did not continue to obtain Certificates of Capacity once liability was denied by the respondent.
Dr Stephen has not provided a report wherein he provides any further explanation for the restrictions he has placed on the applicant’s work capacity.
Dr Salaria is asked to comment on the applicant’s capacity for work for the report he has provided which is dated 20 April 2022, but he restricts his opinion to the applicant’s horse training job. Dr Salaria opines that it would not be safe for the applicant to return to that same job.
Prof Ghabrial considers that the applicant is unfit for heavy lifting, excessive bending and excessive twisting, and that he remains indefinitely unfit to go back to work as a jockey.
A/Prof Miniter writes that it is of “great concern” that the applicant has no qualifications and has marginal literacy. However, A/Prof Minter does not provide any particular opinion on the restrictions he would place on the applicant’s work capacity in any of his reports.

Determination

“Current work capacity” and “no current work capacity” are set out in cl 9 of Schedule 3 of the 1987 Act as follows:
“(1) An injured worker has
‘current work capacity’ if the worker has a present inability arising from the injury such that the worker is able to return to the worker's pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has
‘no current work capacity’ if the worker has 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.”
Section 32A of the 1987 Act includes a definition of “suitable employment” as:
“‘suitable employment’, in relation to a worker, means employment in work for which the worker is currently suited:
(a) having regard to:
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of:
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”
Ms Goodman submits that although Dr Stephen consistently issued certificates which certified the applicant as being fit for 12 hours of work per week with restrictions, the applicant really has had no current work capacity since the injury given his lack of qualifications, poor literacy skills and work experience which is limited to professional horse riding.
Ms Goodman also points to the failure of the respondent to provide any rehabilitation or return to work plan despite accepting liability for several months, and that this is to be considered when determining if the applicant is fit for suitable employment pursuant to s 32A of the 1987 Act.
Mr Stockley submits that the final certificate from Dr Stephen dated 1 July 2021 refers to an improvement in lumbar sacral pain and there is now reference to cervical radiculopathy, which is not a condition which has been claimed by the applicant as being related to his work.
Mr Stockley submits that the applicant would be able to undertake some basic retail work for 12 hours per week at a rate of about $25 per hour.
Ms Goodman referred to the much quoted decision of DP Roche in Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar) at [63]:
“Thus, the task requires the identification of whether there are any “real jobs” (Giankos v SPC Ardmona Operations Ltd[2011] VSCA 121 at [102]) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are ‘available’ (to the worker) or are ‘of a type or nature that is generally available in the employment market’.”
Deputy Snell in Popal v Myer Holdings Pty Ltd [2020] NSWWCCPD 32 (Popal) said at [51] that Dewar must be read in the context of that particular dispute, where the employer attempted to rely upon “a job that was made up” to satisfy s 32A. However, even with that note of caution I find that I cannot identify a ‘real job’ that the applicant could do given that he has only ever worked in the horse riding and horse racing industry, he has no other qualifications, and he has marginal literacy skills as noted by A/Prof Miniter.
The applicant’s lack of ability to be able to do a real job has been compounded by the apparent failure of the respondent and its insurer to provide and implement any return to work or rehabilitation plan during the five months or so when the applicant was providing Certificates of Capacity which certified him as having at least some prospects of some part time work and liability was being accepted for the claim by the respondent. Mr Stockley conceded that no material has been provided to indicate that any attempt had been made by the respondent or its insurer to meet its obligations under Chapter 3 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
A return to work plan and the provision of a rehabilitation service are some of the matters for consideration in the application of s 32A of the 1987 Act. Each dispute turns on its own set of facts and in some situations a return to work plan and the provision of a rehabilitation service might not be that important or significant. For instance, a person who has reached Year 12 at school may have sufficient literacy and numeracy ability to undertake menial clerical or administrative tasks even if that person has done manual work all of their working life and without the benefit of a return to plan or provision of a rehabilitation service.
However, in this dispute a return to work plan and the provision of a rehabilitation service is of critical importance for a person who has spent all his working life in the horse riding industry, possesses no other qualifications or work experience, and whose literacy skills are limited. If there had been a return to work plan or the applicant had been provided with some rehabilitation it might then be possible to identify a real job which the applicant could do. In the absence of such information, I find that I cannot identify any such job.
I do not agree with the submission made by Mr Stockley that the applicant could work as a console operator or in a small retail store because the applicant would still require some reasonable skills in operating digital devices for financial transactions and performing administrative tasks in running the shop or store, and there is no evidence that he possesses such skills.
I therefore find on the review of the evidence that the applicant has had no current work capacity since 24 July 2021.
The parties agreed that the applicant’s PIAWE is $1,411.19. Eighty per cent of PIAWE amounts to $1,128.95. The applicant is entitled to the benefit of increases in weekly payments of compensation as provided for by s 82A of the 1987 Act. I have made the following calculations for the weekly payments of compensation to be made to the applicant with the benefit provided by s 82A:
Period  80% of PIAWE as indexed
24 July 2021 - 30 September 2021                  $1,161.45
1 October 2021 – 31 March 2022  $1,175.30
1 April 2022 – 30 September 2022                  $1,196.90
1 October 2022 – date and continuing             $1,237.25

The claim for medical expenses

The applicant states that he needs to undergo the procedures recommended by Dr Salaria because nothing else will successfully resolve his symptoms.
I could not locate any specific recommendation for CT guided cortisone injections or an exercise program in the material before the Commission. The best that Ms Goodman could refer to was Dr Salaria stating in his report dated 20 April 2022 that: “Most of the injuries improve with rest, exercise program and oral anti-inflammatories and CT guided cortisone injections, over two to four months” but if pain persisted then radiofrequency ablation therapy should be trialled.
There are no specific details of what an exercise program might entail. I note that Dr Salaria refers in his first report to the applicant having had three epidural steroid injections without any long term relief. He provides no details as to why any further injections would be of benefit to the applicant.
I find that there is just no basis for an order requiring the respondent to pay for an exercise program or CT guided cortisone injections.
Dr Salaria writes in his report dated 20 April 2022 that radiofrequency ablation therapy is a benign pain management procedure and is a good non operative, non opioid pain management option. He also writes that if that therapy is not effective and disabling pain persists then L4/5 and L5/S1 anterior lumbar interbody fusion can be required.
Prof Ghabrial does not provide any opinion on the radiofrequency ablation therapy proposed by Dr Salaria.
A/Prof Miniter writes in his first report that he believes the outcome from radiofrequency ablation is almost certain to be poor and would not recommend it, although he does not provide any reasons for this opinion in that report. He does suggest that the applicant stops smoking and engages in an exercise and strengthening program as a management strategy for the lower back pain.
In his report dated 6 October 2022, A/Prof Miniter reiterates his recommendation that the applicant stop smoking and engages in an exercise and strengthening program.
A/Prof Miniter writes:
“I understand Dr Salaria’s enthusiasm to proceed with a procedure. The procedures that he suggests are highly unlikely to result in a positive outcome and almost certainly it will lead to a spiral whereby this man will be then advised, having failed injection therapy, to consider surgical management. In a situation such as this, where the very basic parts of treatment have not been completed, namely cessation of cigarette smoking and regular exercise and return to work, it is inappropriate that further treatment should be suggested.”
A central principle of the decision of Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose) in regard to the predecessor of s 60 of the 1987 Act is that: “Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury”.
I have accepted that the applicant continues to suffer the effects of the injury he sustained on 23 October 2020. Dr Salaria, Prof Ghabrial and A/Prof Miniter have all recorded various signs of lower back pain on examination.
I accept the opinion of Dr Salaria that the radiofrequency ablation therapy is a benign pain management procedure which provides the applicant with a chance of some pain management. The applicant should be allowed the benefit of this procedure, which is recommended by his treating specialist, to try and alleviate the pain that he has been experiencing for some two years now.
A/Prof Minter does not provide any reasons as to why the radiofrequency ablation therapy will not provide any benefit to the applicant and will result in a poor outcome. His opposition is based on what he foresees as a downward spiral that will lead to surgery and the subsequent poor outcome from surgery which he considers is commonplace in “the workers compensation population”.
However, Dr Salaria is not recommending surgery for the applicant and has only indicated that surgery might be an option in the future. The only question to be determined at the present time is whether the radiofrequency ablation therapy is reasonably necessary. The specialist who is treating the applicant has provided cogent reasons as to why this therapy is likely to assist the applicant. An order will be made that the cost of this particular form of treatment should be met by the respondent.

[2022] NSWPIC 633

16 November 2022