Mousamas v Labourpower Recruitment Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mousamas v Labourpower Recruitment Services Pty Ltd [2024] NSWPIC 374
APPLICANT:	Christos Mousamas
RESPONDENT:	Arthur Tzaneros Discretionary Trust and Luke Webber Trust trading as Labourpower Recruitment Services Pty Ltd
MEMBER:	Fiona Seaton
DATE OF DECISION:	11 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; disputed injury to lumbar spine; claim for weekly payments and medical expenses; Held – the applicant sustained an aggravation of his lumbar spine disease; the respondent to pay weekly benefits compensation and reasonably necessary medical expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant’s employment with the respondent was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of his lumbar spine disease on 5 October 2023 pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act). 2. The applicant is totally incapacitated for work as a result of the lumbar spine injury in the period 6 October 2023 to date and continuing. 3. The applicant’s pre-injury average weekly earnings (PIAWE) is agreed at $890.53. This amount is adjusted when indexed to $906.47 from 1 April 2024. 4. The applicant is entitled to have his reasonably necessary medical treatment expenses paid by the respondent pursuant to s 60 of the 1987 Act. The Commission orders: 1. The respondent is to pay weekly benefits compensation to the applicant as follows: (a) for the period 6 October 2023 to 5 January 2024 at 95% of $890.53, being $846 per week, pursuant to s 36(1) of the 1987 Act; (b) for the period 6 January 2024 to 31 March 2024 at 80% of $890.53, being $712.42, pursuant to s 37(1) of the 1987 Act, and (c) for the period 1 April 2024 to date and continuing at 80% of $906.47, being $725.18, pursuant to s 37(1) of the 1987 Act. 2. The parties are given liberty to apply to the Commission within 14 days regarding the correctness of the calculations in determination 3 and order 1. 3. The respondent is to pay the applicant’s reasonably necessary medical and related expenses as a result of the injury pursuant to s 60 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

The applicant Mr Christos Mousamas was employed by the respondent for various periods from 25 November 2020 as a casual forklift driver/labourer. From 30 March 2023 until his injury on 5 October 2023 he was subcontracted to work for Geodis at their Matraville factory. The applicant injured his lower back due to the nature and conditions of that employment and particularly on that date with an aggravation, acceleration, exacerbation or deterioration of his lower back disease.
On 15 November 2023 the respondent issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 disputing entitlement to compensation for the applicant’s lower back injury. That decision was maintained and amended on 3 January 2024 following a request for review. A further s 78 notice was issued on 9 February 2024 disputing that the applicant is entitled to compensation for the alleged lumbar spine injury.
By an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (Commission) on 7 March 2024 the applicant claims weekly benefits compensation for the period 5 October 2023 and continuing pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act).
The dispute was listed for conciliation/arbitration to determine whether the applicant sustained a lower back injury while employed by the respondent and any entitlement to weekly payments and medical expenses that may result from that injury.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant sustained a lumbar spine injury pursuant to ss 4, 4(b) and 9A of the 1987 Act;
(b)    whether the applicant is incapacitated for work as a result of the injury; and
(c)    whether the applicant has an entitlement to medical expenses pursuant to ss 59 and 60 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The parties first appeared for conciliation conference and arbitration hearing on 30 May 2024. The applicant was represented by Ms Eraine Grotte of counsel instructed by Mr Staninovski of Santone Lawyers. Mr Ross Hanrahan appeared for the respondent instructed by Ms Magan of Bartier Perry Lawyers. Ms Brown was also present for the insurer.
The conciliation conference was adjourned on 30 May 2024 to allow the applicant to file and serve further financial documents in answer to the respondent’s Notice for Production, as well as a further statement of the applicant and a statement of Ms Nichol.
At the conciliation conference arbitration hearing held on 24 June 2024 the applicant was represented by Ms Grotte instructed by Mr Saviolakis. The respondent was represented by Mr Hanrahan instructed by Ms Magan and Ms Brown was also present for the insurer.
During conciliation on 24 June 2024 the ARD was amended by consent to include the name of the respondent as Arthur Tzaneros Discretionary Trust and Luke Webber Trust trading as Labourpower Recruitment Services Pty Ltd.
The parties agreed the applicant’s pre-injury average weekly earnings amount is $890.53.
The report of Dr John Criticos dated 24 April 2024 was admitted into evidence by consent.
It was agreed that should the applicant’s claim be successful a general order for medical and related expenses as a result of the injury should be made pursuant to s 60 of the 1987 Act..
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) the ARD and attached documents;
(b) the respondent’s Application to Admit Late Documents (AALD) (AALD-1) dated 3 April 2024 (including its reply);

(c)    the respondent’s AALD (AALD-2) dated 4 April 2024 and attached documents;
(d)    the applicant’s AALD (AALD-3) dated 24 April 2024 and attached documents;
(e)    the applicant’s AALD (AALD-4) dated 7 June 2024 and attached documents;
(f)    the respondent’s AALD (AALD-5) dated 19 June 2024 and attached document, and
(g)    the report of Dr John Criticos dated 24 April 2024.

Oral evidence

No application was made to adduce oral evidence.

Applicant’s evidence

The applicant provided a signed statement to an investigator on 28 November 2023.
He is 48 years of age and he has previously injured his back. He first injured his back in 2013 while installing panels and again in 2019 while employed as a truck driver/maintenance worker.
Following treatment including rehabilitation the applicant returned to full duties after each of these injuries. He had a medical examination before starting work with the respondent in 2020 as a contract employee.
His work at Geodis was loading containers and loading packages used in air freight, using a forklift and packing boxes. He usually worked Monday to Friday between 9.00am and 5.00pm or 6.00pm and there was regular paid overtime available.
On 5 October 2023 the applicant drove to his workplace at 8.00am that day, unloaded a container on his own from the top, lifting and carrying packages of about 30kg with hundreds of boxes and four containers unloaded that day.
He worked all day until 7.45pm when he went home, had a shower and went to sleep exhausted.
The applicant woke at 3.00am the next morning to go to the toilet and he could barely stand or walk due to back pain. His partner called his shift supervisor Steve on 6 October 2023 to advise him of the applicant’s condition.
The applicant was told to travel by Uber to attend the company doctor in Blacktown which he did. He has not received any financial support since that date and he has not returned to work.
The applicant’s view is that the injury occurred because of the shortage of staff for the amount of work that was going on in that period. The containers were very full and there were not enough staff to complete the work within the deadlines. Understaffing was obvious to the company and the afternoon shift always ran short if someone went sick.
In his second statement dated 1 December 2023 the applicant says he has always had a manually intensive job. He describes his two previous back injuries in 2013 and 2019. He received weekly benefits for one year following the 2019 injury and he had physiotherapy treatment. He made a full recovery from that injury after one year.
The respondent carried out a thorough medical when the applicant started work and at the time he had no issues with his back. The applicant also applied for income protection six months ago and to activate that he was required to undergo another thorough medical which did not detect any physical restrictions or issues.
On 5 October 2023 the applicant reported to his supervisors at Geodis Steve and Paul that they were short staffed with only three people on site and a supervisor leaving at 1.00pm. There are supposed to be 10 to 12 people in total working on site. The whole week was chaotic as there were staff on holidays and otherwise away.
Due to short staffing the applicant was working long hours. His supervisors urged him to finish the tasks quickly that day despite being understaffed. The applicant worked from 9.00am to 6.00pm or 7.00pm that day with only one short break.
He was loading a section on his own and he asked Paul, his supervisor, to give him a hand. Paul was throwing boxes at him and telling him to hurry and go quicker. It is difficult to stack the pallets when someone is throwing boxes at him. The normal procedure is to slowly stack the boxes evenly so he is not bending down as much but the applicant was bending over more than he should have.
After riding his electric scooter home as he usually did the applicant was so exhausted from work he went straight to sleep without eating dinner. At about 3.00am he woke to go to the bathroom but could not get out of bed due to severe back pain. His partner text messaged his supervisor to inform him of his injury.
The text of 6 October 2023 appears as an annexure to the applicant’s second statement. It reads;
“Hi Steve, I’m Christos Mousamas’ partner just letting you know in advance. He has strained his back or pulled a muscle yesterday as he can’t get up this morning as he has a lot of lower back pain so unfortunately he won’t be able to come in today. Hopefully he recovers over the weekend. If you want to discuss further please feel free to give me a call. Kind Regards Effie.”[1]
[1] ARD page 16.
Dr Mahmood, the employer’s general practitioner, sent the applicant for an MRI on 10 October 2023 which later confirmed a bulging disc in his lower back.
The applicant now has sharp pain in the middle of his spine and he suffers with back spasms where he experiences shooting pain down his right leg, on his shoulder and neck, and he gets a compressed and locked feeling.
He has had eight sessions of physiotherapy treatment and takes 50mg of Tramadol four times a day for pain relief. He will start seeing Dr Criticos general practitioner for continuing treatment.
The applicant describes the impact on activities of daily living including that he has no capacity for work, he must lie down on an angle as any other position is too painful, he struggles to sit upright for more than 30 minutes before he needs to walk or stretch out his back, it is painful to drive, he cannot stand and tilt forward or backwards, and he struggles to cook, clean and sleep.
The Labourpower Group Time Sheet for the week ending 8 October 2023 shows the applicant worked on Tuesday 3 October 2023 (Monday was a public holiday) between 9.00am and 7.30pm with a 15 minute break, on Wednesday 4 October 2023 between 9.00am and 6.30pm with a 30 minute break and on Thursday 5 October 2023 between 9.00am and 7.45pm with a 30 minute break. “Sick” is recorded on Friday 6 October 2023.
ICare’s List of payments dated 15 February 2024 shows payment of medical and related expenses between 17 October 2023 and 29 January 2024.
Dr Roger Pillemer, orthopaedic surgeon qualified by the applicant, provides a report dated 11 December 2023. The doctor describes the applicant’s previous back injuries, that the applicant says the symptoms on both occasions settled completely and he was not having any problems with his back when he joined the respondent in 2020. Dr Pillemer says “[t]his would seem to be evidenced by the fact that he has done heavy labouring work ever since then without a problem.”[2]
[2] ARD page 31.
Dr Pillemer finds clinical evidence of nerve root involvement on the right side (that is, radiculopathy), as evidenced by the absent hamstring reflex, the sensory loss in the L5 distribution, and the restricted straight leg raising, with localised tenderness in the lower lumbar region.
The doctor’s opinion is that the ongoing symptoms are due to the nature and conditions of the applicant’s employment, particularly on 5 October 2023, noting the development of severe discomfort the following day.
He notes the applicant is still in a very acute stage and it is difficult to suggest a prognosis at the present time.
Dr Pillemer provides a supplementary report on 11 April 2024 commenting on Dr Keller’s report of 15 January 2024.
Dr Keller examined the applicant one month after his consultation with him however Dr Pillemer does not agree with any of the statements made by Dr Keller. Dr Pillemer notes their findings are very different as is their interpretation of the applicant’s ongoing problems.
Dr Pillemer’s further supplementary report of 24 April 2024 confirms his opinion that the employment with the respondent was the main contributing factor to the aggravation, exacerbation, acceleration and/or deterioration of any pre-existing lumbar spine condition.
His opinion is that the employment is the cause of the applicant’s ongoing problems, a higher grade than ‘main contributing factor’ and it is difficult for the doctor to be more specific than this.
The Emergency Department Discharge Referrals of the Concord Repatriation General Hospital dated 9 April 2013 and 6 November 2014, the reports of Dr Lawford of 17 June 2013 and Dr Rosenberg of 19 December 2014 and imaging reports between 15 March 2013 and 5 April 2019 each relate to the applicant’s previous back injuries.
Dr Criticos, general practitioner, reports to the applicant’s solicitor on 28 February 2024 that the applicant first saw him for his lower back injury on 23 October 2023. He stated he had lower back pain injury from lifting multiple boxes at work on 5 October 2023. The applicant had significant lower back pain and tenderness at L4/5 and L5/S1 with significant restriction of movement of 25% in all directions.
Dr Criticos describes the applicant’s injury as acute discal injury at L5/S1 level and an aggravation of a L2/3 retrolisthesis with right focal nerve root injury as well as a secondary acute anxiety and depressive state.
Agreeing with Dr Pillemer, the doctor’s opinion is that employment with the respondent is the main contributing factor to the exacerbation of a pre-existing lumbar spine condition.
On the issue of capacity Dr Criticos does not believe the applicant can return to preinjury duties and/or secure employment.
The MRI Lumbosacral Spine requested by Dr Mahmood on 10 October 2023 found the disc at L5/S1 is degenerate, there is associated endplate changes and annular fissure, a broad-based disc osteophyte with annular fissure and more focal change on the left causing severe foraminal stenosis. At L2/3 there is a 2mm retrolisthesis and a focal right foraminal protrusion causing minor stenosis. At L3/4 there is minor disc desiccation, and the remaining levels have no significant features.
The clinical records of Dr Mahmood at the Eastbrooke Blacktown GP Super Clinic, Maroubra Dynamic Physiotherapy, Crown Street Physio, Dr Criticos and Newington Family Medical Practice are each attached to the ARD.
Certificates of Capacity between 10 October 2023 and 19 January 2024 are in evidence, as are the applicant’s Pay Advices from Labourpower Recruitment Services between 17 October 2022 and 8 October 2023.
The applicant’s bank statements with the National Australia Bank, the Westpac Banking Corporation and the Commonwealth Bank of Australia for the period between 15 October 2022 and 16 April 2024 are attached to the applicant’s second AALD. They appear to confirm no income has been received by the applicant after 5 October 2023.

Respondent’s evidence

The respondent relies on Dr Mahmood’s Certificate of Capacity dated 10 October. This refers to a lower back injury, lumbar disc prolapse with date of injury 6 October 2023 from lifting heavy weights at work, notes similar lower back pain and radiation down to his leg in 2016, management with analgesics and anti-inflammatories and referral for an MRI. There is capacity for some type of work from 10 October 2023 to 19 October 2023 without any hours or days indicated and with restrictions including lifting/carrying and pushing/pulling ability as paper weights only.
The report of the MRI Lumbosacral Spine dated 10 October 2023 is discussed at 51 above.
The respondent’s timesheet is provided, referred to at 36 above.
The respondent in its s 78 notice of 9 February 2024 while agreeing the applicant suffers from a lumbar spine disease, denies liability on the basis that employment was not the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.
Dr Keller, occupational physician qualified by the respondent, provides his report dated 15 January 2024. The doctor’s opinion is that in the absence of a severe traumatic injury and in the presence of the reports of pain that developed overnight following a heavy day at work he would expect that the injury was more in the nature of a strain or fatigue. This would be expected to recover or significantly improve with or without treatment in the three months since his reported incident.
The applicant’s lack of recovery is not explicable in Dr Keller’s view in terms of the reported work, the lack of injury and the MRI report.
In the doctor’s opinion it is possible the applicant has no legitimate disability.
Dr Keller’s opinion on prognosis is that he would have expected a full recovery after one to two weeks of rest and he is unaware of any objective evidence of injury that explains his failure to fully recover and return to pre-injury hours and duties.
The doctor suspects the applicant’s capacity for employment is greater than he presents and would be better assessed outside of the clinical setting.
In his supplementary report of 4 June 2024 Dr Keller confirms he was provided with Dr Pillemer’s report of 15 January 2024.
Dr Keller confirms he did not test the right hamstring reflex. He says at the time of the assessment the applicant “reported significant back pain and disability associated with reduced mobility and I did not ask him to roll onto his front for this test.”[3]
[3] AALD-5 page 2.
The doctor’s opinion is that other tests for radiculopathy were inconsistent within the assessment which suggested to him there was unreliability in the applicant’s presentation. The significant inconsistencies he observed suggested to him that there were no objective findings of right leg radiculopathy.
Procare provides a report to the respondent dated 15 December 2023. Statements were obtained by an investigator from the applicant (referred to above) and from Mr Steven Farries and Mr Mark Sydavong, warehouse supervisors with Geodis.

In his statement signed on 8 December 2023 Mr Farries says he has been a warehouse supervisor with Geodis since 2019 and he has known the applicant since he started at Geodis in about April 2023. He interacted with him most days with a good working relationship.
The applicant in his opinion has the capability and fitness level to perform the job appropriately and he was a very good worker who did everything ever asked of him.
There was usually Mr Farries, Mr Sydavong, the applicant and always a few casuals with three staff on each shift. The applicant was responsible for unpacking and repacking gear into containers and cleaning the work area, he packed items up and put them onto pallets, wrapped the items and then broke down these boxes and securely packed them. He loaded and unloaded containers, he also built export units but mostly he was driving a forklift.
On 5 October 2023 Mr Farries left work at the same time as the applicant and saw nothing that would make him think the applicant had suffered anything like an injury at all. At no point was he made aware that any accident or injury had taken place in the workplace.
Mr Farries received a text message from the applicant’s partner on 6 October 2023 informing him the applicant had a sore back and would not be coming in. Mr Farries said to contact the respondent to say he was not coming in and to get a doctor’s certificate before coming back to work. He has not heard from the applicant since that date.
Mr Sydavong’s statement is unsigned and I accordingly intend to place little weight on this statement. Mr Sydavong’s draft statement includes that he interacted with the applicant every day, he describes their working relationship as good and the applicant as a good worker. He did not know the applicant had suffered an injury and he never saw him hold his back or complain about anything at all.
The Procare report includes in the Synopsis;
“The Claimant completed a pre-employment medical for the Insured where a question was asked around any previous back injuries and the Claimant responded, ‘no problems with the above’. Further questions were asked around injuries requiring more than four weeks off work and previous workers’ compensation claims. The Claimant answered no to each of these.”[4]
[4] AALD-2 page 14.
The respondent’s employment application form for a forklift driver position at a Port Botany site completed by the applicant is dated 13 October 2022 and consists of 38 questions.
In the application form the applicant gives permission to contact his doctor and any other health professional. Questions 3, 4, 6, 7, 7a and 8 ask “are you presently or have you in the past suffered from any of the following” however the list presumably underneath each question is obscured. In answer to each of these questions and the further questions about mental health conditions the applicant says “No problems with the above.”[5]
[5] AALD-2 page 40.
In answer to question 12 “Back injury or spine disorder of the following” where again it is presumed there is a further part of the question that is obscured, the applicant’s answer is “No problems with the above.” In answer to question 20 “Have you any pre-existing injury or disability which may put you or the health or safety or any other person at risk in any work situation” the answer is “No”. In answer to question 22 “Have you ever had an injury which required four weeks or more off work” the answer is “No”. In answer to question 26 “Have you previously made any workers compensation claims” the answer is “No”.[6]
[6] AALD-2 pages 40-41.
Review profiles for Samos Constructions Pty Ltd undated and printed on 13 December 2023 show the applicant as owner of the business. The profile includes the applicant as saying “We are carpenters that can do any job” and later “Don’t hesitate to contact us for a free quote for anything you may need doing around the house, office, work.”[7] It shows one job was quoted over 11 years ago.
[7] AALD-2 page 44.
Dr Mahmood, general practitioner, provides a report to the insurer dated 5 December 2023. The doctor notes he has no access to previous work-related injury documents or to investigation results at that time. He has only seen the applicant a few times with regard to this injury.
The doctor sets out the history of the injury described to him by the applicant. He says he cannot answer exactly about the cause of the injury as there was no injury at the workplace on the day he started suffering and even on the day before.
The MRI of 10 October 2023 provides the diagnosis, however the doctor is unable to comment if the finding is new or old without a previous MRI. Dr Mahmood says the worker “tried to correlate his pain to heavy work load that he has done the day before on 5^th Oct 2023 which he denied any incident on that day.”[8]
[8] AALD-2 page 47.
Regarding his return to work, Dr Mahmood says the applicant can return for light suitable duties on limited hours to be upgraded gradually depending on his response to treatment gradually, with help from a rehabilitation consultant and carefully planned return to work plan with multidisciplinary plan.
Dr Criticos in his report of 24 April 2024 responds to questions about the applicant’s condition of depression. The doctor concludes by saying that because of the applicant’s chronic depression, medication requirement and need for psychotherapy he is unable to work as a forklift driver solely due to his depression diagnosis.
There are a number of documents provided in relation to the applicant’s lower back injuries of 28 February 2013 and 6 November 2014.
In relation to the 2013 injury, Dr Habashy certified the applicant as unfit to work from 28 February 2013 to 6 March 2013.
The MRI Lumbar Spine dated 15 March 2013 concludes “Early disc degeneration at L4/5 and L5/S1 with disc bulges as described. There is a tiny L5/S1 central disc protrusion. No definite nerve root impingement. There is mild associated facet joint arthrosis.”[9]
[9] AALD-2 page 81.
A Further Incapacity Form for recurrence of the lower back injury of 28 February 2013 was lodged by the applicant on 12 April 2013, eight weeks after the original injury, when the applicant was asked to carry out tasks not in accordance with his Workcover certificate.
The Incident Report Form of 9 April 2013 and the Concord Repatriation General Hospital Emergency Department Discharge Referral of 9 April 2013 refer to this injury.
Dr Criticos certified the applicant as having no work capacity between 11 April 2013 and 27 June 2013 due to L5/S1 disc prolapse with L5 neuralgia as a result of the injury of 28 February 2013. The applicant was otherwise certified as having some capacity for work during this period.
On 19 April 2013 Dr Casikar diagnosed L5/S1 disc protrusion and very marginal pre-existing degenerative disease of the lumbar spine, noting employment as the substantial contributing factor to the current diagnosis.
Dr Lawford, treating rheumatologist, reported on 17 June 2013 that the applicant injured his back on a building site on 28 February 2013, attended physiotherapy and attempted unsuccessfully to return to work on light duties. The treatment for his mechanical low back pain without neurological compromise was Mobic and a course of hydrotherapy.
The applicant lodged a Further Incapacity Form on 16 September 2014 for the recurrence of a lower back injury with the original date of injury of 28 February 2013.
Dr Criticos certified the applicant as having no work capacity between 16 September 2014 and 20 September 2014 due to the recurrence of the lumbosacral disc injury of 28 February 2013.

In relation to the injury of 6 November 2014 Dr Wallace, orthopaedic surgeon, provided a report to Allianz on 16 February 2015. The applicant completed a day of work and by the end of the shift noted the onset of lumbar spinal ache and stiffness and stated the following morning his back was a bit sore.
He was certified as unfit for work between 6 November 2014 and January 2015 and returned to work on light duties doing office duties over full time hours. An MRI of 6 December 2014 showed a disc bulge at L5/S1 without evidence of nerve root impingement. The doctor’s diagnosis was musculoligamentous strain lumbar spine and aggravation of pre-existing degenerative disc disease lumbar spine.
The MRI of Lumbar Spine dated 6 December 2014 reports no spinal canal or exit foraminal narrowing at T11/L12 or L4/5 and as on the previous study extension of the disc bulge into the exit foramina without definite L5 nerve root impingement.
Dr Rosenberg, treating orthopaedic surgeon, on 19 December 2014 says radiologically the applicant has evidence of a degenerative disc, “undoubtedly a long term consequence of his original injury”[10] from which he had settled completely and reasonably rapidly and made a complete return to work.
[10] AALD-2 page 56.
The respondent’s Wages Schedule is dated 4 April 2024. Pre-injury average weekly earnings (PIAWE) was subsequently agreed at $890.53.

Applicant’s submissions

The applicant made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.
The applicant has to establish on the balance of probabilities that he sustained an injury to his lumbar spine and that the employment is the main contributing factor to the aggravation of the injury; Murray v Shillingsworth [2006] NSWCA 367.
The applicant’s evidence is set out in two statements with an annexure that is the text message from his partner on 6 October 2023 notifying the respondent of his lower back pain from working the day before.
The applicant’s usual duties are described in his statement of 28 November 2023; loading containers, loading packaging used in air freight, using a forklift and packing boxes. He was required to carry, lift, push, pull including objects of various dimensions and weights. In an average shift there were maybe a few hundred repetitions of these tasks.
The applicant started work with the respondent on 25 November 2020 and he was subcontracted out to work at Geodis from 30 March 2023, about six months before the injury occurred.
On the day of the injury the applicant describes only three people on site. They were short staffed that whole week with people on holidays and otherwise away.
The applicant worked long hours and that is shown in the timesheet with the three days before the injury working from 9.00am to 7.30pm with a 15 minute break, 9.00am to 6.30pm with a 30 minute break and 9.00am to 7.45pm with a 30 minute break on 5 October 2023, and doing physical work.
The applicant describes the work he was doing and Paul throwing boxes at him and urging him to hurry and go quicker.
The applicant’s submission is that just because the injury does not happen on the day there is no reason not to accept the injury happened in the way the applicant describes.
The applicant also submits that when considering the previous injuries the pattern seems to be that the applicant carries out the work and the following day he experiences severe back pain.
The applicant has disclosed his previous injuries to the medical practitioners.
The employment questionnaire is an incomplete document. The applicant says he is fine enough to do the job and that is borne out by the statements of Mr Farries and the unsigned statement of Mr Sydavong. They say the applicant worked in the warehouse at Geodis for about eight months and he was a good worker who did everything asked of him including repetitive lifting, packing, and unloading all day.
In the questionnaire the applicant is not saying he has not had injuries or pre-existing conditions, he is saying ‘no problems with the above’ and that is consistent with Mr Farries saying he thought he had the capability and fitness level to do the job.
Mr Farries did not see anything on 5 October 2023 but the applicant, perhaps to his detriment, is not the type to complain and who despite having had injuries in the past has always returned to physical work.
The applicant previously injured his back in 2013 and in 2019 when a crane gave way and from which he made a full recovery after one year. Dr Lawford describes the injury in 2013 and the radiology of 15 March 2013 shows early disc degeneration with disc bulges at L4/5 and L5/S1, a tiny central disc protrusion with no definite nerve root impingement. Dr Lawford says this should be treated conservatively.
Dr Casikar’s opinion on 19 April 2013 is consistent with Dr Lawford’s opinion. Dr Casikar says there is some degenerative disease of the lumbar spine with no significant neurological problem and given sufficient time the applicant will recover.
There is a similar pattern with the 2014 injury where he seems to experience the problem the next day. The Concord Repatriation General Hospital Discharge Referral says the applicant woke up feeling stiffness in his lower back. Dr Rosenberg on 19 December 2014 refers to the applicant having similar symptoms from which he completely settled and reasonably rapidly and made a complete return to work. The MRI of December 2014 shows there is no significant change, but importantly there are changes later on.
There are no problems when the applicant started with the respondent in 2020 until the injury in October 2023. There is no doubt he has pre-existing problems but he was always able to go back to work and work for an extended period of time doing heavy physical labour.
Dr Criticos’ clinical notes begin in March 2013 and refer to the applicant’s first injury on 28 February 2013. The applicant receives treatment, is referred to Dr Lawford and he is dismissed from work in June 2013. This is consistent with the applicant’s statements and the information from the various medical practitioners.
There is an aggravation in September 2014 which is still symptomatic in October 2014, he is getting better with a reduction in the prescription of Tramadol, there is improvement by June 2015 and at a case conference in September 2015 it is noted he can push and pull 65kg and lift 35kg. The applicant is on normal duties from October 2015. There are complaints of pain noted in August 2016 and again in April 2019 but it can be assumed he is sufficiently recovered to get back to work.
The applicant describes the 2019 injury while working for Nacs Construction when a crane gave way and from which he made a full recovery.
In April 2019 the applicant twists his back and has a closed head injury. In May and June 2020 back pain and pain medication is noted. There is an entry in Dr Criticos’ notes in February 2023 with nothing further until the injury in October 2023.
There is a lot of evidence about the previous injuries, including physiotherapy reports and the report of Dr Wallace, however the applicant is working, he is doing heavy lifting work and there are periods when he is not complaining and he is just getting on with the job.
Dr Pillemer in his report of 11 December 2023 takes a history of the injury to the lower back and the previous injuries of 2013 and 2019. The applicant says he was not having any problems with his lower back when he joined the respondent in 2020 and he was doing heavy labouring work since then. This is consistent with Mr Farries’ who said he was capable and fit to do the job.
Dr Pillemer carries out an examination and notes the left hamstring reflex is present but he is unable to elicit the right hamstring reflex. He also finds distinct hypoesthesia to pinprick on the dorsum of the left foot, again in an L5 distribution. He notes the MRI and the long history of back problems. He notes the heavy labouring work ever since then, with significant lifting and carrying. Again the applicant submits that should be accepted as it is consistent with the respondent’s witness Mr Farries and there is no evidence to challenge that.
Dr Pillemer saw the long hours the applicant worked that week, also consistent with what the applicant says. Dr Pillemer says that in his opinion the ongoing symptoms are due to the nature and conditions of his employment, particularly on 5 October 2023, noting the development of severe discomfort the following day. He does not take issue with the fact that it is the next morning at 3am that he wakes in severe pain.
The applicant confidently submits that if Dr Pillemer says there are objective signs then that is what he has found.
Dr Pillemer’s opinion is that the applicant was not fit for any employment at the moment noting his significant discomfort. He also is of the opinion that the applicant needs to see a spinal surgeon for assessment.
Dr Keller in his report of 15 January 2024 takes a history of manually unloading containers and aircraft containers, no incidents or falls, no pain, no injury report on the day, he was particularly fatigued and went to bed early then woke with severe pain.
Dr Keller examines the applicant and says his general demeanour was of someone suffering high levels of pain and he minimised movements and displayed pain behaviours throughout. The doctor says “I asked him what he thought caused the continuation of his pain three months after awaking following a fatiguing day at work and he was not able to explain this or why he had not improved.”[11]
[11] AALD-2 page 9.
The applicant’s submission is that this is a person who has worked hard at rehabilitating himself after every episode that he has had in the past and he has gone back to work. He is not a person who by any means could be said to be malingering and not wanting to return to work.
Dr Keller notes his view that the reported altered sensation affecting all of the right lower limb has no anatomical explanation, and weakness demonstrated in the right ankle is inconsistent with his capacity to mobilise independently.
The applicant’s submission is that the reported injury and the MRI report are explicable if you accept what Dr Pillemer found objectively on examination.
Dr Keller says should the applicant have suffered a legitimate muscular strain due to heavy work with the delayed onset of lower back pain he would expect him to recover within one to two weeks. The applicant’s submission is that there is no one size fits all. The applicant has a vulnerability and it is a question of what has put him off work on this occasion.
When asked if the applicant can return to pre-injury duties and hours Dr Keller says “[i]f taken on face value, then Mr Mousamas is not currently fit for his pre-injury duties.”[12] The applicant submits that if you accept what the applicant says and what Dr Pillemer says the applicant is not fit for his pre-injury duties.
[12] AALD-2 page 11.
Dr Pillemer in his supplementary report of 11 April 2024 disagrees with the statements made by Dr Keller and confirms his opinion that his findings were anatomically consistent with the MRI.
In a supplementary report dated 4 June 2024 Dr Keller confirms he did not test the right hamstring reflex, and at the time of his assessment, in order to report on significant back pain and disability associated with reduced mobility, Dr Keller did not ask him to roll over. Dr Keller says he had normal ankle reflex which is a test for L5/S1 radiculopathy, and he notes other tests for radiculopathy were inconsistent within the assessment, suggesting unreliability in the applicant’s presentation.
This contrasts with Dr Pillemer’s opinion that the applicant has spine degeneration due to the nature and conditions of his work and he finds objective, physical findings of right sided radiculopathy.
Dr Keller’s comment that the current consensus is that there are no studies that associate physical work tasks to lumbar degeneration, with increasing age the only statistically significant association, is unsupported in the applicant’s submission and ought to be ignored.
Dr Keller did not complete the physical examination, omits to carry out a critical test and his opinion is inconsistent with Dr Pillemer’s findings. The applicant urges that Dr Pillemer’s opinion be preferred, being based on a thorough and complete examination of the applicant.

The evidence on capacity is not straightforward. The applicant was certified as having some capacity from 10 to 19 October 2023, being referred for an MRI and treated with analgesics and anti inflammatories and with some restrictions. Dr Mahmood does not initially identify how many hours or days in the week or what kind of work he can do.
The next certificate is for 40 hours a week with restrictions, then Dr Criticos considers he is fit for some work until 19 January 2024 when he says the applicant has no capacity for work to 19 February 2024. The doctor describes the reason as the “patient has fulminating back pain and psychological instability,”[13] fulminating meaning intense and fluctuating, intensifying.
[13] ARD page 211.
The applicant’s submission is that less weight should be given to the general practitioner’s certification and more weight given to the opinion of Dr Pillemer who in December 2023 identifies that he cannot do any employment, consistent with the idea of fulminating back pain.
Dr Criticos in his report of 24 April 2024 says it is chronic depression and medication requirement and the need for psychotherapy that means the applicant is unable to work as a forklift driver, however the applicant submits this is a secondary psychological condition which is a consequence of the lumbar disc problem.
The applicant has a chronic pain injury and he is unemployable as a result. He has the stress of that ongoing inability to work. The insurer has denied the claim and in the past the applicant has had rehabilitation that gets him back to work.
He has developed psychological sequelae in the nature of a secondary condition and this has added to his problems. The applicant submits he has no current work capacity from the time of his injury and definitely by the time Dr Pillemer sees him in December 2023.
Dr Criticos’ report of 24 April 2024 and his certificates are sufficient to explain that things are just getting worse for the applicant.
The applicant has been denied the ability to rehabilitate and get treatment, which he needs to get better and get back to work.
There is no evidence in the applicant’s bank statements that show he is working. He explains in his statement he had a business that is inactive..

Respondent’s submissions

The respondent made oral submissions which have been recorded and form part of the Commission’s record. These are summarised below.
The respondent noted the applicant’s answers in the employment questionnaire referred to above.
Dr Keller says that there are inconsistencies sufficient to raise questions about the applicant’s reliability about the complaints, where they are coming from and what they result from. The question is what is the material factor now causing incapacity, if there is any.
The applicant’s submissions answer that question when referring to Dr Criticos’ opinion that the applicant’s condition is fulminating and there is depression.
There is fulminating back pain and psychological instability. The dictionary tells us ‘fulminating’ is sudden or severe explosive kind of violent reaction to a situation.
On the basis of Dr Criticos’ notes the applicant has been campaigning for a decade, since 2013, about back pain although the applicant’s submission is that this was cut off in the last couple of years.
The respondent does not cavil with the idea that there can be an aggravation in the course of employment, and Murray v Shillingsworth [2006] NSWCA 367 says that. The respondent does not take issue with that.
Dr Keller however says when there are busy periods at work there can be a strain and generally you physically recover from that. The applicant seems to have physically recovered.
The applicant stops work on 5 October 2023 and he does not see the doctor until 10 October 2023. In that time he is resting and treating himself.
On 10 October 2023 the doctor does not say the number of hours he can work but he has some capacity. There might be some restricted hours that could apply in that situation.
The next certificate is for capacity for work for 40 hours with limitations. He should be doing paperwork only and no heavy lifting, standing only as tolerated, and the restrictions are made quite clear. Office work is the only thing to do because of the lifting restriction. He can work in his own doctor’s opinion.
Somehow by 19 January 2024 there is fulminating back pain and then psychological instability sets in.
Dr Criticos in his report of 28 February 2024 provides a standard and noncontroversial commentary about what might be happening in the applicant’s case. This could be reasonable if you accept he has conducted an adequate examination and has followed various opinions of the doctors he has referred the applicant to, but he has not referred him to anyone and there has been no specialist orthopaedic treatment. There is only Dr Pillemer who is an independent medical expert and who saw him in December 2023, which as he notes is a short time after the injury.
The respondent says the applicant improved by the time he sees Dr Keller and Dr Pillemer has not physically examined him again. Dr Pillemer suggests he sees a spinal surgeon and he has not done that.
If there is a secondary psychological injury that is a consequence of the physical injury and that is stopping him from working according to his general practitioner.
Dr Criticos’ report of 24 April 2024 says he is unable to work solely due to his depression. The physical injury is no longer the issue. Dr Rosenberg discussed with the applicant in 2013 that there is a disturbance at L5/S1. That is what is unstable, and it has remained unstable ever since.
It is to the applicant’s credit that he has returned to work and that he has persisted as long as he has and he is highly motivated to return to work. Why don’t we see the same pattern occurring now? Something has happened that is different, and the clue is what Dr Criticos describes as ‘fulminating’.
The consequences of the back pain were so severe that the applicant was sent to a psychologist and he has been consulting Mr Ziad Mohammed.
It is not clear what Dr Criticos really means in the report of 24 April 2024 when he talks about 5 October 2023 being the first time he saw the applicant for depression, although he does refer to depression in the very early stages in his notes. Then he talks about sending him to Prince of Wales Hospital and another diagnosis is made there.
It would be useful to have available the records of the psychologist, if any, and the notes from the hospital where the psychological diagnosis is made.
All we are able to see objectively is inconsistencies and a presentation which is unreliable and it is hard to know if there has been any material contribution at this stage of the work incident or work aggravation.
The pleadings are limited to the back injury and exclude any reference to psychological injury, although there is other material that does refer to psychological injury.
There is evidence that is missing and it is a version of the events the applicant has raised himself in his application by making reference to his depression and his psychological condition.
The respondent’s submission is that the evidence is compelling that the applicant has some capacity for work as his certificates suggest. He has capacity for work in some clerical job and that could pay at least the minimum rate of earnings per week at $21 an hour, perhaps more for a clerical job and as he has had some experience $25 per hour may be more appropriate, and he could do that for half a day for half a week.
The general practitioners thought he could do some work and Dr Pillemer does not explain why he is not able to work. Dr Pillemer has not seen anything from a psychiatrist or a psychologist.
In the current year the applicant probably has a larger capacity to do something but it is interfered with because of his psychological state and that has to be acknowledged.
There is no evidence about the nature of that and what his likely prognosis is, or even a diagnosis. There is at least the same ongoing or perhaps even greater capacity at the present time down to nil if as his general practitioner says it is all now the result of his depression that he has an inability to work.

Applicant’s submissions in reply

Dr Criticos in the report of 28 February 2024 says “[t]his man has an acute discal injury at the Ls/S1 level and an aggravation of a L2/3 retrolisthesis with right focal nerve root injury and also secondary acute anxiety and depressive state due to his back pain and insurer delay in processing his claim.”[14]
[14] ARD page 45.
He goes on to say “I do not believe that Mr Mousamas can return to preinjury duties and/or secure employment. He has ongoing pain and suffering and loss of enjoyment of life occasioned by his injuries and also sustained a psychiatric injury which impacts on his future employment.”[15]
[15] ARD page 46.
The applicant’s submission is that it is very clear it is a secondary psychological reaction to the chronic pain that he is experiencing. The psychological condition starts to be inserted into the certificates from about 19 January 2024.
Regarding the report of Dr Criticos dated 24 April 2024 the applicant submits that care should be taken in how the response to question nine is read. The doctor is asked for his opinion as to whether the applicant is totally disabled from his usual duties of his occupation as a forklift driver, specifically about that work, and he answers yes, chronic depression and medication requirements and the need for psychotherapy make him unable to work as a forklift driver. Caution should be taken in interpreting that answer to say that this is the sole cause of his inability to work at all.
The respondent made a submission about the applicant not going to see a spinal surgeon and the simple answer is that he cannot afford it as he is not being paid compensation and his medical and treatment expenses are not being addressed.
The applicant is unable to return to work as he has before because he has not been supported by his employer and insurer in the way that he has been previously.
In terms of capacity Dr Pillemer is in the box seat to tell us what is wrong with the applicant physically and in December he says he cannot work at all in any employment.
There is no evidence that the applicant can do clerical work. The applicant must establish his case on the balance of probabilities. The submission is that he cannot work and he has only ever done physical work. The Commission is unable to make a finding that the applicant can do clerical work and there is no evidence that he has done clerical work.
The applicant has had no capacity for work since the date of the injury. The text is sent on 6 October 2023 and on the following Tuesday the applicant sees Dr Mahmood and he is in a very bad way at that point. Dr Mahmood’s note on 10 October 2023 says “[p]ain started early morning on Friday, Severe Lower Back pain, radiated down to his Right foot, weakness, tingling, numbness along the distribution of Right L4-5 L5-S1 Recurrent problem.”[16] The doctor says the applicant is unable to stand straight and unable to walk straight.
[16] ARD page 64.
The applicant submits that it is extraordinary that in those circumstances the doctor would suggest that he could do some work.

FINDINGS AND REASONS

Did the applicant sustain a lumbar spine injury on 5 October 2023

The applicant bears the onus of proving his employment with the respondent is the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of his lumbar spine disease injury in accordance with s 4(b)(ii) of the 1987 Act.[17]
[17] Murray v Shillingsworth [2006] NSWCA 367 (prior to the 2012 amendments).
The evidence of the applicant, Dr Mahmood, the MRI report of 10 October 2023 and the histories of Dr Criticos, Dr Pillemer and Dr Keller establish that the applicant’s lumbar spine disease was made worse in October 2023 in the sense of “more grave, more grievous or more serious in its effects”;[18] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34, 110 CLR 626.
[18] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34 at [9].
Whether employment is the main contributing factor to the injury is a question of fact and involves an evaluative process decided on the evidence overall; AV v AW [2020] NSWWCCPD 9 at [78].
Based on the evidence overall I find the employment with the respondent was the main contributing factor to the aggravation of the applicant’s lumbar spine disease.
The applicant’s evidence is that after a day of heavy manual labouring he woke at 3.00am on 6 October 2023 unable to move due to severe back pain.
Dr Mahmood in his Certificate of Capacity of 10 October 2023 diagnoses a lower back injury and lumbar disc prolapse from lifting heavy weights at work.
Dr Criticos in his report of 28 February 2024 says the main contributing factor to the exacerbation of the applicant’s pre-existing lumbar spine condition was the employment with the respondent.
Dr Pillemer’s opinion is that the applicant’s ongoing symptoms are due to the nature and conditions of his employment, particularly on 5 October 2023, noting the development of severe discomfort the following day.
Dr Pillemer’s opinion is that the employment is the cause of the applicant’s ongoing problems, a higher grade than ‘main contributing factor’.
While Dr Keller is critical of the applicant’s lack of recovery, he reports a consistent history of the injury given by the applicant.
The respondent’s submission is that the applicant’s presentation to Dr Keller was inconsistent, raising questions about the applicant’s reliability, supported by the answers the applicant gives in the pre-employment questionnaire.
Some of the questions are not fully visible in the respondent’s employment application form of 13 October 2022. As a result the applicant’s responses of “No problems with the above” are difficult to assess and may at least in some cases be appropriate.
At question 22 however the applicant says “no” when asked if he has ever had an injury which required four weeks or more off work. At question 26 the applicant says “no” in response to being asked if he has previously made any workers compensation claims. These responses are incorrect on the evidence.
These answers do not directly assist in determining whether employment with the respondent was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the applicant’s lumbar spine disease injury.
This does lend support to the respondent’s submission that the applicant’s presentation to Dr Keller was inconsistent and raises questions about his reliability.
Unreliability in the applicant’s presentation to Dr Keller may be assessed against the balance of the evidence, particularly the MRI report of 10 October 2023 and Dr Pillemer’s findings on examination.
Dr Pillemer found nerve root involvement on clinical examination and Dr Keller confirms he did not test the applicant’s right hamstring reflex.
I prefer Dr Pillemer’s opinion as his examination of the applicant is thorough, the basis for his conclusion is explained and is supported by the applicant’s reporting of the injury, the evidence of Dr Mahmood and Dr Criticos and the MRI findings of 10 October 2023.
There is no evidence of a competing causal factor of the aggravation.
Based on the evidence as a whole I find the applicant sustained an aggravation of his lumbar spine disease on 5 October 2023 and the employment with the respondent was the main contributing factor to the aggravation.

Is the applicant incapacitated for work as a result of the injury

The applicant claims ongoing weekly payments from 5 October 2023 pursuant to ss 36 and 37 of the 1987 Act.
Section 33 of the 1987 Act states 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.
A determination must be made as to whether the applicant has ‘current work capacity’ or ‘no current work capacity’ in accordance with cl 9 of Schedule 3 of the 1987 Act.
The applicant will have no current work capacity if he has an inability arising from the injury so that he is not able to return to his pre-injury employment or suitable employment.
He will have current work capacity if he is able to return to his pre-injury employment or he is able to work in suitable employment but the amount he is able to earn is less than he had the capacity to earn immediately before the injury.
The weight of evidence is that the applicant is unable to return to pre-injury employment.
Dr Keller in answer to the question of whether the applicant can return to preinjury duties and hours, responds “[i]f taken on face value, then Mr Mousamas is not currently fit for his pre-injury duties. His reported symptoms and disability are however not supported by his reported work duties and investigation reports and it is possible he has no legitimate disability.”[19]
[19] AALD-2 page 11.
Dr Keller would have expected a full recovery after one to two weeks of rest and he is unaware of any objective evidence of injury that explains his failure to fully recover and return to preinjury hours and duties.
As discussed above I prefer the opinion of Dr Pillemer regarding the applicant’s injury and for the same reasons I prefer his opinion regarding the applicant’s ability to return to pre-injury employment.
A consideration of the applicant’s work capacity in my view falls into three periods; 6 October 2023 to 9 October 2023, 10 October 2023 to 10 December 2023, and from 11 December 2023.
There is no certification of the applicant’s capacity for work in the period 6 October 2023 to 9 October 2023.
The applicant’s evidence is that on the morning of 6 October 2023 he was in severe pain and unable to stand or walk and he ceased work due to the injury. Dr Mahmood says the applicant managed himself with pain killers and anti-inflammatory medicine before he first saw him on 10 October 2023. I note the applicant’s submission regarding Dr Mahmood’s description of the applicant being unable to stand straight or walk properly when he first examined him on 10 October 2023.
I find that the applicant had no current work capacity in this period.
The next question is whether the applicant was able to work in suitable employment between 10 October 2023 and 10 December 2023 before his examination with Dr Pillemer.
Dr Mahmood first certifies the applicant as having capacity for some type of work from 10 October 2023 to 19 October 2023 without specifying hours per day or days per week, with restrictions of lifting/carrying “paper weights only” and under “Other” he says “Office works only.”[20]
[20] ARD page 196.
In his next two certificates the doctor includes capacity for some type of work from 20 October 2023 to 1 December 2023 for eight hours a day and five days a week with the same restrictions as above.
Dr Criticos provides certificates of capacity for the period 1 December 2023 to 19 February 2024. The certificate of 1 December 2023 continues to certify the applicant as having capacity for some type of work for eight hours a day five days a week with restrictions of lifting/carrying of ‘clerical lifting only’ and treatment of nonsteroidal anti-inflammatories and physiotherapy.
Dr Criticos’ certificate of 8 January 2024 includes capacity for some type of work as in his previous certificates with the same restrictions, and treatment of Tramadol and exercise.
The respondent’s submission is that there is compelling evidence the applicant has current work capacity and the certificates of capacity certifying the applicant as having current work capacity should be accepted.
In the respondent’s submission I would be satisfied that the applicant has current work capacity in a clerical role at between $21 and $25 per hour for half a day over half a week.
Other than the certificates of Dr Mahmood and Dr Criticos referring to clerical duties there is little other evidence addressing the matters for consideration in assessing capacity for suitable employment in s 32A of the 1987 Act.

The applicant is 48 years of age and his evidence is that he has always had a manually intensive job. He completed a real estate course between 2019 and 2020 and worked for Montana for about four months until February 2023. There is a reference in Dr Wallace’s report of 16 February 2015 to the applicant doing office duties while on light duties[21] but otherwise the applicant’s employment history is of physical work.
[21] AALD-2 page 50.
I am not satisfied there is sufficient evidence that the applicant had current work capacity for suitable employment, that is that he was fit for employment in a real job to which he is suited,[22] in the period between 10 October 2023 and 10 December 2023.
[22] Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWCCPD 55 at [59].
Dealing next with the period from 11 December 2023, Dr Pillemer says on that date “[i]n my opinion he is not fit for any employment at the moment noting his significant discomfort.”[23] At that time his condition is still in an acute stage and is not stable.
[23] ARD page 33.
The respondent submits that Dr Pillemer does not say why the applicant is unable to work and by the time the applicant sees Dr Keller he has improved.
Dr Pillemer describes the applicant as being in a lot of discomfort, walking with an antalgic gait, leaning slightly forward from the waist and with significant restriction of back movement. The doctor refers to back and leg pain described as constantly present and the symptoms as getting worse. He carries out a thorough examination of the applicant. His opinion is that he is not fit for any employment at that time noting his significant discomfort.
In my view Dr Pillemer sufficiently explains how he forms the opinion that the applicant has no current work capacity.
Dr Keller examines the applicant on 11 January 2024 and says on face value he is not currently fit for his pre-injury duties, although the doctor believes it possible there is no legitimate disability. I have not accepted the doctor’s opinion that there is no legitimate injury.
I accept the applicant has no capacity for work from 11 December 2023 on the basis of Dr Pillemer’s opinion. I give more weight to Dr Pillemer’s opinion on the applicant’s capacity for work than on the opinions of Dr Mahmood and Dr Criticos given his careful examination of the applicant and his qualifications and experience.
On 19 January 2024 Dr Criticos certifies the applicant as having no current capacity for work to 19 February 2024. Treatment is with Mirtazapine and Tramadol and with a psychologist Zaider Mohammad. Under “Comments” the doctor says “Patient has fulminating back pain and psychological instability.”[24] Dr Criticos is unable to indicate an estimated time to return to any type of employment.
[24] ARD page 211.
On 28 February 2024 Dr Criticos says he does not believe the applicant can return to preinjury duties and/or secure employment, he has ongoing pain and suffering and loss of enjoyment of life occasioned by his injuries and he has also sustained a psychiatric injury which impacts his future employability. His future is guarded as to the likelihood of returning to the workforce.
On 24 April 2024 Dr Criticos reports to the United Healthcare Group regarding a diagnosis of depression made by him and a psychiatrist at Prince of Wales Hospital in October 2023. The doctor says the applicant was referred to a psychologist and commenced on Mirtazapine 30mg daily and Endep 10mg at night and he should slowly respond to the treatments. However his prognosis is guarded due to his litigation and his unemployability due to his lumbar disc and chronic pain injury.
At question nine of the report Dr Criticos says the applicant is totally disabled from his usual duties as a forklift driver solely due to his depression diagnosis. His chronic depression and medication requirement and need for psychotherapy means he is unable to work as a forklift driver.
The respondent submits that the physical injury is no longer the issue. I do not accept that submission noting the medical evidence as a whole including the report of Dr Pillemer and the certificate of capacity of 19 January 2024 that provides a diagnosis of lumbar spine injury and severe reactive depression and adjustment disorder.[25]
[25] ARD page 210.
I agree with the respondent that there is little available evidence regarding the applicant’s psychological condition. It appears however that the psychological condition is secondary to the lumbar spine injury.
I am persuaded on the basis of the whole of the evidence[26] that the applicant has no current work capacity in the period 6 October 2023 to date and continuing in accordance with ss 36 and 37 of the 1987 Act.
[26] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
The parties agree the applicant’s PIAWE is $890.53. This amount is adjusted when indexed to $906.47 from 1 April 2024.
There will therefore be an order for weekly compensation payments as follows:
(a) for the period 6 October 2023 to 5 January 2024 at 95% of $890.53, being $846 per week, pursuant to s 36(1) of the 1987 Act;
(b) for the period 6 January 2024 to 31 March 2024 at 80% of $890.53, being $712.42, pursuant to s 37(1) of the 1987 Act, and
(c) for the period 1 April 2024 to date and continuing at 80% of $906.47, being $725.18, pursuant to s 37(1) of the 1987 Act.

Does the applicant have an entitlement to medical expenses

There will be a general order made for the payment of the applicant’s reasonably necessary medical and related expenses as a result of the injury.

SUMMARY

The applicant sustained an aggravation of his lumbar spine disease on 5 October 2023 in the course of his employment with the respondent for which the employment was the main contributing factor in accordance with s 4(b)(ii) of the 1987 Act.
The applicant is entitled to weekly payments of compensation for the period 6 October 2023 to date and continuing pursuant to ss 36 and 37 of the 1987 Act with PIAWE agreed at $890.53 (subject to indexation) as set out in the Certificate of Determination.
The respondent is to pay the applicant’s reasonably necessary medical and related expenses as a result of the injury pursuant to s 60 of the 1987 Act.

[2024] NSWPIC 374

11 July 2024