Nepean River Dairy Pty Ltd v Workers Compensation Nominal Insurer (icare)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nepean River Dairy Pty Ltd v Workers Compensation Nominal Insurer (icare) [2022] NSWPIC 40
APPLICANT:	Nepean River Dairy Pty Ltd
FIRST RESPONDENT:	Workers Compensation Nominal Insurer (icare)
SECOND RESPONDENT:	Lazar Lazar
THIRD RESPONDENT:	Stanley Business Enterprises Pty Ltd
MEMBER:	John Isaksen
DATE OF DECISION:	02 February 2022
CATCHWORDS:	WORKERS COMPENSATION - Miscellaneous Application filed by uninsured employer in response to demand by icare for payment of workers compensation benefits made to worker; employer claims the injury sustained by the worker was a disease injury and contribution can be made by third respondent who employed the worker in the 12 months prior to the injury, pursuant to section 16 (2) of the Workers Compensation Act 1987 (1987 Act); icare and worker contend that the injury was as provided for by section 4 (a) of the 1987 Act and not a disease injury; reference to Perry v Tanine Pty Ltd t/as Ermington Hotel, Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd, and NSW Police Force v Gurnhill; different calculations of what should have been paid in weekly payments of compensation to the worker; whether employer required to pay weekly benefits made to worker pursuant to section 38 of the 1987 Act; Held – injury sustained by the worker pursuant to section 4 (a) of the 1987 Act, and not a disease injury; no contribution to be paid by the third respondent; order for employer to make payment to icare pursuant to section 145 of the 1987 Act, including payments made pursuant to section 38 of the 1987 Act.
DETERMINATIONS MADE:	1. That the second respondent sustained an injury to his cervical spine and left shoulder while employed with the applicant on 13 September 2018 pursuant to section 4 (a) of the Workers Compensation Act 1987 (the 1987 Act). 2. The second respondent did not sustain a disease injury to his cervical spine and left shoulder as provided for by section 4 (b) of the 1987 Act. 3. There is no contribution to be made by the third respondent pursuant to section 16 (2) of the 1987 Act from the order for the payment of monies by the applicant to the first respondent. 4. The amount to be paid by the applicant to the first respondent pursuant to section 145 (4) of the 1987 Act is $134,145.44.
ORDERS MADE:	1. The applicant is to pay the first respondent, pursuant to section 145 (4) of the 1987 Act, the sum of $134,145.44. 2. The applicant has liberty to apply within 14 days of the date of this decision to make further submissions as to whether the order for payment is to include weekly payments of compensation made to the second respondent pursuant to section 38 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

Nepean River Dairy Pty Ltd (Nepean River Dairy) has filed a Miscellaneous Application in response to a demand made by the first respondent, Workers Compensation Nominal Insurer (icare), for the payment of an amount of $177, 024.79 for workers compensation benefits paid to the second respondent, Lazar Lazar, an employee of Nepean River Dairy.
Mr Lazar claims to have sustained an injury to his cervical spine and left shoulder on 13 September 2018 when he was pulling pallets of empty plastic milk bottles with the assistance of another employee.
Mr Lazar ceased work as a result of this injury on 20 September 2018 and did not return to work until March 2020. Mr Lazar has been on restricted hours and duties since then.

Nepean River Dairy concedes that it did not have workers compensation for Mr Lazar at the time of his injury and workers compensation benefits have been made to and on behalf of
Mr Lazar by icare.
Mr Lazar commenced employment with Nepean River Dairy on 1 July 2018. Prior to that,
Mr Lazar had been working at Nepean River Dairy but was employed by the third respondent, Stanley Business Enterprises Pty Ltd (Stanley Business Enterprises).

Nepean River Dairy contends that the injury sustained by Mr Lazar on 13 September 2018 was a disease injury as provided for by section 4 (b)(ii) of the Workers Compensation Act 1987 (the 1987 Act), being an aggravation, acceleration, exacerbation or deterioration of a disease to the cervical spine and left shoulder.
Nepean River Dairy contends that, on the basis that Mr Lazar sustained an injury pursuant to section 4 (b)(ii) of the 1987 Act, then Stanley Business Enterprises is required to contribute to the payments of workers compensation benefits made to and on behalf of Mr Lazar pursuant to section 16 (2) of the 1987 Act.
Nepean River Dairy also disputes the amount of workers compensation that has been paid by icare to and on behalf of Mr Lazar, in particular in regard to the calculation of Mr Lazar’s pre-injury average weekly earnings and his actual earnings upon his return to work with Nepean River Dairy.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) whether Mr Lazar sustained a disease injury pursuant to section 4 (b)(ii) of the 1987 Act, and if so, whether Stanley Business Enterprises is liable to make a contribution for the workers compensation benefits made to and on behalf of
Mr Lazar pursuant to section 16 (2) of the 1987 Act; and
(b) the amount of workers compensation that has been paid by icare to and on behalf of Mr Lazar, and the amount that Nepean River Dairy may be required to pay icare pursuant to section 145 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The parties attended a conference and hearing on 28 October 2021 and 21 January 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.
Mr Stanton appeared for Nepean River Dairy, instructed by Ms Moloney. Mr Doak appeared for icare and Stanley Business Enterprises, instructed by Mr Ainsworth. Mr Petrie appeared for Lazar Lazar, instructed by Ms David.
The hearing was conducted by telephone in accordance with the protocols set by the Commission as a result of the coronavirus pandemic.
There were further directions made at the conclusion of the hearing for Nepean River Dairy to file and serve a revised schedule of its calculation of weekly payments that should have been made to Mr Lazar, and for Nepean River Dairy and icare to file and serve details of the separate amounts paid by icare for medical expenses and weekly payments of compensation.

EVIDENCE

Documentary evidence

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

(a)    the Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply filed by the first respondent and attached documents;
(c)    Reply filed by the second respondent and attached documents;
(d)    Reply filed by the third respondent and attached documents;
(e)    Application to Admit Late Documents filed by the applicant on 22 September 2021;
(f)    Application to Admit Late Documents filed by the applicant on 5 November 2021;
(g)    Application to Admit Late Documents filed by the applicant on 3 December 2021;
(h)    Application to Admit Late Documents filed by the first respondent on 17 January 2022;
(i)    Application to Admit Late Documents filed by the second respondent on 18 January 2022;
(j)    A revised schedule of a calculation of what weekly payments of compensation should have been paid to the second respondent, filed by the applicant on 25 January 2022; and
(k)    Application to Admit Late Documents filed by the first respondent on 27 January 2022.

Oral evidence

There was no application to adduce oral evidence or to cross examine anyone who provided statements in this dispute.

The evidence of Lazar Lazar

Mr Lazar has provided statements dated 7 May 2019 and 6 October 2021.
Mr Lazar states that he sustained an injury to his left shoulder in about 2000 while employed with Coca Cola. He states that he was off work for about two years due to this injury.
Mr Lazar states that he commenced work as a machine operator and forklift driver with CRT Group in 2005. He states that he developed pain in his neck and back, which caused him to no longer a operate a forklift. He states that he sustained an injury to his lower back on 12 December 2010 which caused him to be off work for a few weeks and then return to light duties.
Mr Lazar states that he developed some left shoulder pain in September 2011 and underwent scans of the left shoulder.

Mr Lazar states that he continued to have lower back pain but remained on light duties with CRT Group until his position was made redundant in late 2013.
Mr Lazar states that in early 2014 he obtained work with Stanley Business Enterprises and was placed at Icon Foods at St Peters and then at Nepean River Dairy.
Mr Lazar states that he saw Dr Dan, neurosurgeon, for his lower back pain between 2012 and 2015. He states that he saw Dr Sanki in February 2017 with neck and mid back pain. He states that he then had physiotherapy treatment until June 2017 and his neck pain gradually improved. He states that his neck became pain free, although he had ongoing intermittent low back pain.
Mr Lazar states that he commenced employment with Nepean River Dairy on 1 July 2018.

Mr Lazar states that he sustained a workplace injury on 13 September 2018. He states the operator in the short life production area made an urgent demand for more clean bottles. He states that the electric forklift was not working, and so Mr Lazar and another employee, Morris Kiwarkis, manually moved pallets of empty plastic bottles from the dock to inside the factory. This involved Mr Lazar pulling straps from the front of the pallet while Mr Kiwarkis pushed from behind, so that the pallet would move along the floor.
Mr Lazar states that the bottles were stacked about 2.5 metres high on each pallet and there would be about 2,000 bottles on each pallet. He states that he would use this method of work regularly because the forklifts would often break down. He states that on 13 September 2018 he moved, with the assistance of Mr Kiwarkis, three to four pallets from the dock to the machines, and about eight or nine pallets from the dock to the day store.
Mr Lazar states that he suffered pain in his left shoulder and the left side of his neck in the course of pulling the pallets on 13 September 2018 and that he told Mr Kiwarkis that he had pain in his left arm and left shoulder.
Mr Lazar states that he continued on working because he thought he would be all right. He states the pain continued and on 17 September 2018 he informed his supervisor, Yuram, and Mr Kiwarkis that he was still in a lot of pain and they told Mr Lazar to get his arm checked out. Mr Lazar states:
“There was no incident report form filled in that I am aware of. I do not know who is supposed to fill in any forms, as I was not given any training or induction when
I started.”

Mr Lazar states that he called Allianz because he had been dealing with them up until 2017 in regard to the 2010 injury and he was told he was entitled to another two years of treatment. He states that by December 2018 it was realised that the injury at Nepean River Dairy was not “a recurrent claim but a new claim” and that he was told by icare to fill in new forms.

Mr Lazar state that he was asked by the manager from Nepean River Dairy, Keith Pirie, as to why he had not reported the injury and completed a form, and Mr Lazar said that he had been advised by Allianz to put in the claim number.

Other lay evidence

Morris Kiwarkis has provided a statement dated 3 May 2019. Mr Kiwarkis states that he has been employed with Nepean River Dairy since 1 June 2018 as a team leader.
Mr Kiwarkis states that he was working with Mr Lazar on 13 September 2018. He states that he saw Mr Lazar pulling pallets along and decided to help him. He states that he would push the pallet with empty plastic bottles on them, and Mr Lazar would pull the pallet with a strap that was wound around the pallet.
Mr Kiwarkis estimates that about 10 to 13 pallets were moved using this procedure and that it took about half an hour. He states that he returned to the machine where was working, but within the hour he saw Mr Lazar rubbing his shoulder and Mr Lazar told Mr Kiwarkis that his shoulder and neck were sore.
Mr Kiwarkis states that the following day he noticed Mr Lazar walking stiffly and Mr Lazar told Mr Kiwarkis that his shoulder was getting worse. Mr Kiwarkis states that a few days later
Mr Lazar told him that the pain was unbearable, and Mr Lazar left work.

Keith Pirie has provided statements dated 3 May 2019 and 21 September 2021. Mr Pirie states that he is employed as QA Manager with Nepean River Dairy.
Mr Pirie states that Mr Lazar was offered a full time position with Nepean River Dairy commencing 1 July 2018. He states Mr Lazar did not require training because he had already been working as a subcontractor for Nepean River Dairy. He states that a medical examination for Mr Lazar came back as a “Grade 2” due to a previous lower back injury, and so Mr Lazar was hired as a machine operator which would not require any heavy lifting.
Mr Pirie states that Mr Lazar was aware of the requirement to immediately report any injury and refers to a burn injury reported by Mr Lazar on 28 August 2018 to the left index finger. He also refers to Mr Lazar being aware of the requirement to report an injury from attending toolbox meetings and daily production meetings.
Mr Pirie states that Mr Lazar was employed for about two years with Stanley Business Enterprises and had received training on safety measures and training for the Nepean River Dairy workplace. He states that there would have been no change in training or procedures upon Mr Lazar becoming an employee of Nepean River Dairy.
Mr Pirie states that he does not know to whom or when or if Mr Lazar reported the injury in September 2018. He states that an official reporting of the injury has not been found. Mr Pirie states that on 17 or 18 September 2018 he recalls Mr Lazar walking past his office and saying something about a sore neck, but Mr Lazar did not say it was work related.
Emad Jomaa has provided a statement dated 15 September 2021. Mr Jomaa states that he is the director and CEO of Nepean River Dairy, and also of Icon Foods.
Mr Jomaa states that when Mr Lazar worked at Nepean River Dairy for Stanley Business Enterprises, and also when he was employed by Nepean River Dairy, he worked as a machine operator and drove the forklift to move empty containers.
Mr Jomaa states that he had a conversation with Mr Lazar about three weeks before the injury alleged by Mr Lazar. He states that Mr Lazar said that he was having an operation in about three weeks time and said: “This operation is under my old workers compensation claim and it’s against my old company I used to work for”.
Mr Jomaa states that he had a conversation with Mr Lazar soon after a claim was lodged for the injury in September 2018 and Mr Lazar said to him: “I think I aggravated my injury when pulling the pallets”.

The medical evidence

There is a CT scan report of Mr Lazar’s left shoulder dated 22 November 2011 which records a normal study, apart from minor degenerative change in the acromio-clavicular joint.
There is an ultrasound report of Mr Lazar’s left shoulder dated 16 October 2013 which records: “Normal examination”.
There is an ultrasound report of both of Mr Lazar’s shoulders dated 12 December 2014 which records a tear in the right shoulder, but no pathology in the left shoulder.
There is a CT scan report of Mr Lazar’s cervical spine dated 12 December 2014 which records degenerative changes at the C5/6 level resulting in encroachment on the left C6 nerve root.
There is a report from Dr Sanki, general surgeon, dated 9 January 2014, which primarily involves treatment for Mr Lazar’s lower back condition but also records that Mr Lazar had developed pain and discomfort in the left shoulder as a result of pushing barrels at work.
Dr Sanki reports in January 2015 of Mr Lazar having limitations of both left and right shoulder abduction, as well as pain in the neck which is aggravated by movements.
There is a CT scan report of Mr Lazar’s cervical spine dated 13 February 2017 which records spondylotic change throughout the neck. The report records a minor broad-based disc bulge at C6/7.

Dr Sanki provides a report to Allianz dated 11 March 2017. He writes that Mr Lazar has pain in the right scapular area due to referred pain from the cervical spine. He opines that degenerative changes in the cervical, dorsal and thoracic spine have been aggravated by the type of work being undertaken by Mr Lazar, such as standing. Dr Sanki issues a Certificate of Capacity dated 6 March 2017 which certifies Mr Lazar fit for 20 hours of work per week due to lumbar spine disc injury and “c spine disc injury”.
The clinical notes from Fairfield District Medical Centre record that Mr Lazar attended for physiotherapy treatment on seven occasions between 6 April 2017 and 1 June 2017 due to pain in the cervical spine, lumbar spine, thoracic spine and both shoulders.
There is a report from Dr Chong dated 12 June 2018 which is an assessment of whether
Mr Lazar is suitable for the position of processing and machine operator with Nepean River Dairy.
The report records Mr Lazar having a lower back disc injury in 2010 and that he gets back pain from repetitive heavy lifting. The report records no prior problems in the arms or neck. The report records normal function and range of motion in the neck, and normal mobility and range of motion in the shoulders.
Dr Chong concludes that Mr Lazar is considered suitable for the position required by Nepean River Dairy without restrictions.

The first entry in the clinical notes from Fairfield District Medical Centre in regard to any problems Mr Lazar was having with his neck or left arm is on 20 September 2018, with the note: “Neck pain radiating down left arm”. Another six consultations go by until there is an entry regarding the possible cause of these symptoms, when on 28 September 2018
Dr Wong records:
“pulled pallet at work as usual
3 days later noticed pain in neck, rad left arm.”
A CT scan report of the cervical spine dated 20 September 2018 records degenerative changes with likely encroachment of the left C6 and C7 nerve roots.
The first specialist that Mr Lazar sees after 13 September 2018 is Dr Nadanachandran, neurosurgeon. In his initial report dated 27 September 2018, Dr Nadanachandran records that Mr Lazar has had severe neck and left arm pain for one week’s duration, and writes: “It was insidious in onset with no injury prior to that”.

An MRI scan report dated 27 September 2018 records a moderate to large size left posterolateral disc protrusion at C6/7. Dr Nadanachandran confirms a large protrusion at C6/7 in a report dated 8 October 2018, after reviewing the MRI scan.
Dr Sanki issues a Certificate of Capacity on 4 October 2018 which certifies Mr Lazar as having no current work capacity due to C5/6/7 disc protrusion and loss of sensation in the left arm. The cause of injury in the certificate is:
“painful neck pulling a pallet with a fellow employee on 13/9/18. Aggravating a pre-existent disc lesion from the previous injury of 2010.”
Mr Lazar then sees Dr van Gelder, neurosurgeon. In a report dated 2 November 2018,
Dr van Gelder writes:
“Mr Lazar described a work-related injury on 5/10/8. He was pulling empty pallets with a twisting motion. Sooner after this, he developed pain radiating down his right arm. Symptoms worsened over the next few days. His arm became very painful and numb. The injury happened on approximately the 13^th of September.”
Dr van Gelder records that Mr Lazar was having some neck pain before September. He confirms a C6/7 left disc herniation impacting the left cervical spine and C7 nerve root from a review of the recent MRI scan.

Mr Lazar then returns to see Professor Owler, who had previously treated Mr Lazar for his lower back condition. In his initial report dated 11 December 2018, Prof Owler records that Mr Lazar was pulling a pallet with his left arm in mid September and the next day ended up with severe neck pain and symptoms down the left arm “in a very typical C7 distribution”. Prof Owler views the recent MRI scan and states that a large C6/7 disc protrusion “is clearly compressing the cord as well as the C7 exiting nerve root”.
Professor Owler writes:
“I note there are some changes with loss of disc height at C5/6 as well but I don’t think that is causing any significant issue.
On examination I could not detect any weakness of his C7 muscles but he is obviously having significant ongoing C7 radicular pain.”

Professor Owler recommends a C6/7 cervical discectomy and fusion, although Mr Lazar has not undertaken that surgery to date.
There is an MRI scan report of the left shoulder dated 27 August 2019 which records bursitis, tendinosis and a tear of the tendon confluence.
Dr Dave, orthopaedic surgeon, provided some handwritten answers on 23 August 2019 to questions asked by icare, which includes the following:
“His reported problems are from September but investigations have commenced from May 2019. He presents with picture of adhesive capsulitis which can develop over time. There is no direct history of injury re this shoulder. Neck injury & pain can be a predisposing factor for causation of adhesive capsulitis.”
There is a report from Dr Bentivoglio, neurosurgeon, dated 9 January 2019 addressed to GIO. The date of injury referred to in the preamble to the report is “30/12/10”. It is likely that this report was prepared after Mr Lazar had initially sought to claim workers compensation benefits after 13 September 2018 from the insurer of the 2010 injury.
Dr Bentivoglio records Mr Lazar having a low back injury in 2010, but that prior to this he had some neck issues secondary to forklift driving and chronic turning. He records that Mr Lazar has had flare ups of neck pain over the last 10 years, and that the most recent was on 13 September 2018 when Mr Lazar was pulling some empty plastic pallets.

Dr Bentivoglio opines:
“The diagnosis of this man is a gentleman with pre-existing degenerative cervical spondylotic disease with left C6/7 nerve root compression from these degenerative changes. He has evidence of a mild left C7 radiculopathy. His work has been a substantial contributing factor. It all started back in 2008 where he started to get neck pain and he attributed that to forklift driving and having to turn his neck all the time. Since that time, he has intermittent flare ups of neck pain. The most recent being on the 13 September 2018. Undoubtedly there has been progression of the degenerative disease in his cervical spine since 2008.”
Dr Panjratan, orthopaedic surgeon, has provided a report at the request of icare dated 9 December 2019.
Dr Panjratan records Mr Lazar experiencing left arm pain on 13 September 2018 after pulling pallets with his left arm, and then starting to experience neck pain the following day.
Dr Panjratan does not record details of any past problems Mr Lazar has had with his neck or left shoulder.
Dr Panjratan does not refer to any imaging reports which pre-date the incident on 13 September 2018. There is a reference to the CT scan of the cervical spine taken on 20 September 2018, but no reference to the MRI scan taken seven days later. He refers to the MRI scan report of the left shoulder as dated 27 August 2018, although it is apparent that date should be 27 August 2019.
Dr Panjratan diagnoses Mr Lazar as having an aggravation of pre-existing cervical spondylosis and left shoulder adhesive capsulitis.
In a supplementary report dated 31 January 2020, Dr Panjratan opines that Mr Lazar’s aggravation of the pre-existing cervical spondylosis on 13 September 2018 has not ceased. Dr Panjratan also opines that Mr Lazar would not have developed left shoulder adhesive capsulitis without the stimulus of the injury on 13 September 2018.
Dr Millons has provided a report at the request of Nepean River Dairy dated 13 September 2021. Dr Millons undertakes a detailed review of treatment and investigations that Mr Lazar underwent for his neck, left arm and lower back prior 13 September 2018.
Dr Millons records Mr Lazar developing some pain in his neck in January 2014 when forklifting driving, which required Mr Lazar to look over his shoulders a lot.
Dr Millons records that there were occasions when Mr Lazar had to physically drag palletised loads of empty plastic bottles while working for Nepean River Dairy, although he does not record Mr Lazar having an onset of pain when doing that task on 13 September 2018.
Dr Millons opines that Mr Lazar has chronic degenerate changes in his cervical spine which seem to go back to 2008 when he had to reverse a forklift as part of his work duties and also to push drums off a pallet. He opines that problems that Mr Lazar has had with his left shoulder seemed to come about when pushing drums off a pallet in 2011 or 2012.
Dr Millons opines:
“It seems likely that the condition of Mr Lazar’s neck, back and probably left shoulder does, in fact, relate to the nature and conditions of his work as a forklift driver/machine operator dating back to at least 2008 since which time symptoms came in and which have continued with some waxing and waning.”
Dr Millons is asked whether the gradual worsening of changes in the cervical spine explains why Mr Lazar felt the need to seek further treatment in September 2018 and cease work, and Dr Millons replies: “On the balance of probabilities, it would appear that that is probably the case”.
Dr Millons also opines:
“I believe that the gradual worsening process is the most likely explanation for the cause of the pain and loss of function as opposed to specific actions on a specific day when he was assisting moving a pallet of plastic bottles.
It seems more likely than not that that would have been just one aggravation in a long term series of aggravations as a result of the nature and conditions of his work.”
Dr Millons writes that Mr Lazar’s left shoulder problems almost certainly relate to the nature and conditions of work over the years and the normal activities of daily living, with several intermittent aggravations, including when he was doing gym exercises in around 2015.

FINDINGS AND REASONS

Whether the worker sustained a disease injury within the meaning of section 4 (b) of the 1987 Act, and if so, whether Stanley Business Enterprises is liable to make a contribution for the workers compensation benefits paid to and on behalf of the worker

Mr Stanton for Nepean River Dairy referred to the description of ‘disease’ provided by Burke CCJ in Perry v Tanine Pty Ltd t/as Ermington Hotel (1998) 16 NSWCCR 253; [1998] NSWCC 14 (Perry). Although His Honour was dealing with a carpal tunnel injury, the following description of ‘disease’ has been followed in many decisions of the Compensation Court and this Commission:
“In general it seems to me that carpal tunnel syndrome is a failure of an area of the body to cope with repeated stress imposed upon it and reacts to that stress by developing swelling, pain and loss of function as a consequence. That seems to me to be classically a disease process. Where work is the source of the relevant stress it connotes to me that the worker has received injury either by the contraction or aggravation of a disease.”
Mr Stanton submits that Mr Lazar had undertaken work over the years, including during his employment with Stanley Business Enterprises at Nepean River Dairy, where his neck and left shoulder had been subjected to repeated stress and that the onset of symptoms in September 2018 was indicative of a disease process rather than being caused by a particular event on a particular day.
Mr Stanton refers to the following in support of this submission:
(a)    Mr Lazar undergoing a CT scan of the cervical spine in December 2014;
(b)    complaints of neck pain made by Mr Lazar to Dr Sanki in March 2017;
(c)    no details being recorded by Mr Lazar’s general practitioner regarding the cause of his neck pain when he initially seeks treatment on 20 September 2018 and for another five consultations thereafter;
(d)    Dr Nadanachandran, who was the first specialist who saw Mr Lazar after 13 September 2018, recording that the severe neck and left arm was insidious in onset and with no injury involved;
(e)    Mr Lazar’s failure to report an injury on 13 September 2018, despite Mr Pirie’s assertion that Mr Lazar was well aware of the procedure for the reporting of an injury; and
(f)    Mr Lazar’s own belief that he had sustained an injury that had developed over time by making a claim against the insurer responsible for his injury in 2010.
Mr Doak for icare and Stanley Business Enterprises submits that the evidence from
Mr Lazar, and which is corroborated by Mr Kiwarkis, supports a finding that Mr Lazar sustained a frank injury on 13 September 2018 and not a disease injury. He submits that such a finding is in turn supported by the medical evidence, which identifies a significant change of pathology in the cervical spine after 13 September 2018.

Mr Petrie for Mr Lazar submits that his client did not sustain a ‘frank injury’ from one particular incident or action, but an injury was sustained to the neck and left shoulder by the pulling of the pallets on the day of 13 September 2018. He submits that although Mr Lazar had occasional complaints with the neck and left shoulder over the years, it was the pulling of the pallets on 13 September 2018 which has caused his incapacity and need for medical treatment.
Mr Petrie submits that a careful study of the radiology reports reveals a significant change in pathology in Mr Lazar’s cervical spine and left shoulder after 13 September 2018. Prior to 13 September 2018 Mr Lazar had general degenerative changes throughout his neck, but soon after that date the imaging identifies a disc protrusion at C6/7, which is confirmed by treating neurosurgeons. A CT scan taken on the left shoulder in 2011 and ultrasounds taken of the left shoulder in 2013 and 2014 report little or no pathology, whereas the MRI scan taken in August 2019 reports significant pathology.
Section 4 of the 1987 Act relevantly provides:
“In this Act:
Injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i)A disease that is contracted by a worker in the course of employment but only if the employment is the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.”
The determination of whether a work injury meets the definition of a ‘personal injury’ as provided for by section 4 (a) of the 1987 Act without recourse to need to determine whether that work injury is a disease injury as provided for in section 4 (b), has been considered in a number of authoritative decisions. In Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606; 17 NSWCCR 309 (Mecha), Justice Powell referred to the High Court decision in Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310 (Zickar) before stating at [39-42]:
“The effect of the decision of the majority is, thus, first, that, if there can be identified an incident which involves--either by being itself the change, or by bringing about the change--a physical change in the worker, then--even though that change may be no more than the culmination of a progressive disease, and not the product of some external force--that damage is to be regarded as an "injury" within the meaning of par (a) of the definition of "injury" in s 4 of the Act; and, second, that if such "injury" arises out of or in the course of the worker's employment, and causes incapacity for work to the worker (s 9, s 33) or causes the worker to sustain a loss of the type comprehended by Div 4 of Pt 3 of the Act (s 9, s 65, s 66, s 67) or brings about the death of the worker (s 9, s 25, s 26) then the worker, or, in the event of the death of the worker leaving dependants, his dependants, will be entitled to receive compensation calculated in accordance with the provisions of the Act.
In the present case, the medical evidence which was before the trial Judge was sufficient to demonstrate that, even before the fall which he sustained on 11 February 1992, the worker's lumbo-sacral spine had begun to degenerate…. This notwithstanding, the evidence of the worker, which was accepted by the trial Judge, was that, prior to the fall, his back condition was asymptomatic.
The worker's evidence, which was supported by that of his general practitioner, was that, following his fall, he began to suffer pain in his back and neck, which pain grew worse and led to his ceasing work for a period during which he received compensation.
……
There thus having been an identifiable incident, which incident appears to have caused, at least, ligamentous injury to the lumbar spine segment, the sequelae of which involved pain, which was, for a time disabling, and which, in any event, has continued over the years, the decision of the majority in Zickar v MGH Plastic Industries Pty Ltd would seem to dictate that, even if it be the fact that the result of the incident was merely that the worker's pre-existing back condition was rendered symptomatic, he was nonetheless to be regarded as having sustained an injury within the meaning of par (a) of the definition of ‘injury’.”
In NSW Police Force v Gurnhill [2014] NSWWCCPD 12 (Gurnhill), DP Roche made the following observations regarding the application of the terms ‘personal injury’ and ‘disease’ as they appear in section 4 of the 1987 Act at [72-73]:
“…the High Court has described a personal injury under s 4(a) as a “sudden or identifiable physiological change” (Zickar v MGH Plastic Industries Pty Ltd[1996] HCA 31; 187 CLR 310 per Brennan CJ, Dawson and Gaudron JJ at 716 (Zickar)) and as “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state” (Kennedy Cleaning Services Pty Ltd v Petkoska[2000] HCA 45; 200 CLR 286 per Gleeson CJ and Kirby J at 300 [39] (Petkoska)).
Whether a worker has suffered a physiological effect that satisfies the test for a personal injury in s 4(a) will depend on the nature and severity of his or her symptoms. However, the terms “disease” and “personal injury” in s 4 are not mutually exclusive (Zickar) and the difference will not usually be of critical importance. As noted by Gleeson CJ and Kirby J in Petkoska (at [40]):
‘The disease provisions remain as alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an ‘injury’ in the primary sense’.”

The evidence reveals that Mr Lazar had occasional problems with his neck and left shoulder prior to 13 September 2018. Mr Lazar states that he developed neck pain while working for CRT Group, although he does not identify specifically when that occurred, other than it seems to be sometime between 2005 and 2010. Mr Lazar is referred in December 2014 for a CT scan of the neck by Dr Sanki, which coincides with Dr Sanki recording a month later that Mr Lazar had pain in the neck which was aggravated by movements. In March 2017 there is a reduction of Mr Lazar’s work capacity to 20 hours of work per week by Dr Sanki due to injuries to the lumbar spine and cervical spine.
Mr Lazar states that he sustained an injury to his left shoulder in 2000 which caused him to be off work for two years, although there is no medical evidence made available in regard to that injury. Mr Lazar underwent scans of the left shoulder in 2011, 2013 and 2014. Dr Sanki records Mr Lazar having left shoulder pain in January 2015.
All of that evidence is relied upon by Nepean River Dairy to assert that Mr Lazar’s cervical spine and left shoulder were failing to cope with repeated stress placed upon those parts of his body and that the onset of symptoms in September 2018 was simply the end result of that gradual process of deterioration.
Mr Lazar states that he had physiotherapy in the first half of 2017 and his neck became pain free. That statement is supported by the available medical evidence. The clinical notes from Fairfield District Medical Centre do not record any attendances by Mr Lazar for neck or left shoulder pain for some 15 months prior to 13 September 2018, although Mr Lazar was continuing to seek treatment for lower back pain, which included a referral to Prof Owler.
Mr Lazar does not see Dr Sanki (who practices out of Fairfield District Medical Centre) for ongoing neck pain between March 2017 and the onset of symptoms in the neck in September 2018.
Most significantly, the medical report from Dr Chong in June 2018, which is provided for the purposes of Mr Lazar being employed by Nepean River Dairy, does not record Mr Lazar have any problems with his neck or left shoulder. The report records normal function and range of motion in the neck, and normal mobility and range of motion in the shoulders.
It is reasonable therefore to conclude that while Mr Lazar had intermittent symptoms and problems with his neck and left shoulder, he had not been experiencing any problems for some time with those parts of his body prior to the work he undertook on 13 September 2018.
However, a combination of lay evidence and medical evidence supports a finding that
Mr Lazar suffered a “sudden physiological change or disturbance of the normal physiological state” (Petkoska) of his cervical spine and left shoulder when undertaking the pulling of pallets laden with empty plastic bottles on 13 September 2018. There is compelling evidence that when Mr Lazar was undertaking that particular work he sustained “an ‘injury’ in the primary sense” (Petkoska), that being an injury as provided for by section 4 (a) of the 1987 Act, rather than a disease injury.
Although Mr Lazar’s cervical spine and left shoulder had never been asymptomatic, and there were widespread degenerative changes in his cervical spine, there was an identifiable incident on 13 September 2018 which brought about “a physical change in the worker” (Mecha) that was consistent with there being an injury within the meaning of section 4 (a) of the 1987 Act as recognised in Zickar and Mecha.
Mr Lazar’s evidence that he suffered pain in his left shoulder and the left side of his neck in the course of pulling the pallets on 13 September 2018 is supported by the evidence of
Mr Kiwarkis. Mr Kiwarkis confirms that Mr Lazar was pulling the pallets laden with empty plastic bottles. He states that within the hour he saw Mr Lazar rubbing his shoulder and
Mr Lazar told Mr Kiwarkis that his shoulder and neck were sore. That evidence is consistent with a sudden onset of symptoms in the neck and left shoulder.

The condition of Mr Lazar’s neck was serious enough for him to see a neurosurgeon within a fortnight of pulling of the pallets on 13 September 2018, which also indicates a sudden onset of symptoms caused by that particular work activity.

Mr Stanton refers to there being no details recorded by Mr Lazar’s general practitioner regarding the cause of his neck pain when Mr Lazar initially seeks treatment on 20 September 2018 and for another five consultations thereafter. He submits that this evidence runs contrary to the claim made by Mr Lazar that it was the pulling of the pallets that was the cause of the injury to his neck.
However, caution needs to be exercised when placing reliance on clinical notes from a busy general practice. In Nominal Defendant v Clancy [2007] NSWCA (Clancy), Santow JA observed at [54-55]:
“While clinical notes, as McColl JA observes, may in common experience be the raw data on which diagnosis and opinions are based, it does not follow that they will be comprehensive... clinical notes are written in the course of a busy practice where the clinician is primarily there to observe and administer treatment. They should not be construed with the minute attention one might give a formal legal document.”

In Mason v Demasi [2009] NSWCA 227 (Mason), Basten JA set out several reasons [at 2] as to why caution needs to be exercised with clinical notes including “the manner in which the history was obtained”, “the period of time devoted to that exercise” and “that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings”.
It is apparent from the clinical notes that once Mr Lazar had ceased work because of the severity of pain in his neck and down his left arm, he was attending his general practitioners every few days for urgent treatment, investigation and referral. In those circumstances, the lack of reference in the clinical notes for some eight days as to the cause of Mr Lazar’s neck pain is not so compelling as to usurp the weight of lay and medical evidence which supports a finding that Mr Lazar’s neck pain was caused by the pulling of pallets on 13 September 2018.
I agree with the submission made by Mr Stanton that the history of the onset of symptoms by a treating specialist can be very important because that information will be relied upon for diagnosis and treatment. This was relied upon by Mr Stanton when pointing out that
Dr Nadanachandran recorded that the severe neck and left arm was insidious in onset and with no injury involved.
However, there are three other treating specialists who all record that the onset of Mr Lazar’s neck and left arm symptoms occurred from pulling pallets at work. Dr Sanki issues a Certificate of Capacity on 4 October 2018 which includes: “painful neck pulling a pallet with a fellow employee on 13/9/18”.
The report of Dr van Gelder is somewhat confusing because he refers to a work-related injury on ‘5/10/18’ and Mr Lazar having pain down his right arm. However, Dr van Gelder does record “pulling empty pallets with a twisting motion” and the injury occurring on “approximately the 13^th of September”.
Professor Owler records that Mr Lazar was pulling a pallet with his left arm in mid September and the next day ended up with severe neck pain and symptoms down the left arm. That history of injury is consistent not only with Mr Lazar’s evidence but also what was observed by Mr Kiwarkis.
This is not a situation where those three specialists see Mr Lazar many months or years after the event, and so there might be doubt as to whether the patient is seeking to change the record of how the symptoms arose. All of these specialists see Mr Lazar within three months of the onset of his symptoms. The records made by those specialists weigh in favour of my acceptance that Mr Lazar did sustain a sudden physiological change, at least to his cervical spine, when pulling the pallets on 13 September 2018.
None of the four treating specialists have been asked for an opinion on the issue of whether Mr Lazar suffered a sudden physiological change to his cervical spine on 13 September 2018 or whether the onset of symptoms at that time was the result of a gradual process whereby Mr Lazar’s cervical spine failed to cope with repeated stress.
However, I agree with the submission made by Mr Doak that the report of Prof Owler dated 11 December 2018 clearly identifies a significant change of pathology in the cervical spine after the pulling of the pallets on 13 September 2018. Prof Owler notes that there is some loss of disc height at C5/6, but he does not consider it of any significance. What is of concern to Prof Owler, to the extent that he recommends fusion surgery, is the large left C6/7 disc protrusion which is causing “significant ongoing C7 radicular pain”.
I agree with the submissions made by Mr Doak and Mr Petrie that a review of the imaging of Mr Lazar’s cervical spine reveals a dramatic change from there being widespread degenerative changes throughout the cervical spine in the years before 13 September 2018 to there being significant pathology found at the C6/7 level within two weeks of the sudden onset of symptoms experienced by Mr Lazar in his neck and down his left arm, and which required prompt referral to appropriate specialists.
In State Transit Authority v El-Achi [2015] NSWWCCPD 71 (El-Achi), DP Roche said at [72]:
“That a doctor does not address the ultimate legal question to be decided is not fatal. In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”
Despite Prof Owler not providing an opinion on the issue of whether Mr Lazar suffered a sudden physiological change to his cervical spine on 13 September 2018 or whether the onset of symptoms at that time was the result of a gradual process, the observations made by Prof Owler in the course of his treatment of Mr Lazar, when added to a review of the imaging of the cervical spine over the previous four years, supports a finding that Mr Lazar suffered sudden trauma to his cervical spine at the C6/7 level when pulling pallets on 13 September 2018.

None of the three independent medical experts really address the issue of whether Mr Lazar suffered a sudden physiological change to his cervical spine from pulling pallets on the day of 13 September 2018, or whether the onset of symptoms at that time was the result of a gradual process.
The report of Dr Panjratan is of no assistance, at least in regard to the cervical spine, because he makes no reference to any imaging of the cervical spine before 13 September 2018 and therefore cannot compare the significant change in pathology found after 13 September 2018 to those earlier scans.
The report of Dr Bentivoglio is of limited assistance because it is not apparent as to what, if any, past imaging of the cervical spine has been made available to him, and consequently he is also not able to compare the significant change in pathology found after 13 September 2018 to those earlier scans. However, his opinion that the most recent flare up of neck pain experienced by Mr Lazar occurred on 13 September 2018 when pulling pallets is consistent with the finding that I have made, after a review of the lay evidence and treating medical evidence, that Mr Lazar suffered a sudden pathological change to his cervical spine on that day.
Dr Milllons does undertake an extensive review of previous imaging and treating reports. However, there remain a number of deficiencies in his report which means that I cannot rely on his opinion that the condition of Mr Lazar’s neck “seems likely” to “relate to the nature and conditions of his work as a forklift driver/machine operator”.
Firstly, Dr Millons does not record any details of what Mr Lazar claims to have occurred on 13 September 2018. Instead, Dr Millons records that the pulling of pallets was an activity which happened on different occasions at Nepean River Dairy. Dr Millons records that there were times when the forklifts were not working, and that Mr Lazar would have to physically drag the palletised loads of bottles either by himself or with assistance.
Mr Lazar concedes that the dragging of pallets did occur regularly, but he also states that it was this particular work activity undertaken on 13 September 2018 which caused the onset of severe neck pain. Dr Millons records that the forklifts were out of action on a day in September and that Mr Lazar was again required to manhandle and drag the pallets, but he does not record Mr Lazar having a sudden onset of symptoms when this occurred.

When specifically asked, Dr Millons opines that the gradual worsening of the cervical spine is a more likely explanation for the cause of pain rather than specific actions on a specific day. However, that opinion must be discounted by Dr Millons’ failure to consider what Mr Lazar claims to have occurred to him on 13 September 2018. As a consequence, Dr Millons cannot properly answer the issue of whether Mr Lazar suffered a sudden physiological change to his cervical spine from the pulling of pallets on the day of 13 September 2018, or whether the onset of symptoms at that time was the result of a gradual process.
Secondly, Dr Millons does not address the significant change in pathology at the C6/7 level after 13 September 2018, despite this being of particular concern to Mr Lazar’s treating specialists, especially Prof Owler.
Thirdly, Dr Millons’ opinion on the cause of Mr Lazar’s neck condition is directed by the demands of Nepean River Dairy. Dr Millons is asked whether the gradual worsening of changes in the cervical spine explains why Mr Lazar felt the need to seek further treatment in September 2018 and cease work, and Dr Millons replies: “On the balance of probabilities, it would appear that that is probably the case”.
However, as I have already noted, Dr Millons is not asked to consider whether it is the pulling of the pallets on 13 September 2018 which explains why Mr Lazar felt the need to seek further treatment, despite this being recorded by three of the four specialists who treated
Mr Lazar in the months which followed.
I do not accept the submission made by Mr Stanton that the apparent failure to report the injury on 13 September 2013 indicates that no specific injury was sustained by Mr Lazar on that day.
Firstly, Mr Kiwarkis was made aware soon after Mr Lazar had finished pulling pallets that
Mr Lazar’s neck and left shoulder were sore, and the following day Mr Lazar told Mr Kiwarkis that his shoulder was getting worse. Mr Kiwaris is a team leader at Nepean River Dairy.
Secondly, I am not satisfied from a review of the evidence that Mr Lazar was aware of the procedure for reporting an injury while employed with Nepean River Dairy. Mr Pirie’s understanding that Mr Lazar would have been aware of the requirement to report an injury is based on an assumption that Mr Lazar would have known this from working for Stanley Business Enterprises at Nepean River Dairy. However, Mr Pirie concedes that no training was provided to Mr Lazar when he transferred his employment from Stanley Business Enterprises to Nepean River Dairy.
Mr Pirie also assumes that Mr Lazar would have been aware of the procedure for reporting an injury by attending toolbox meetings and daily production meetings, but again this evidence is based on assumption. Mr Pirie does not state that he was ever in attendance when this particular requirement was discussed. Minutes of a toolbox meeting on 3 February 2017, which are signed by Mr Lazar, state: “If you are ill or injured, you must report the situation to the Team Leader and/or Manager of Nepean River Dairy”. Mr Lazar did this when he told Mr Kiwarkis that he had pain in his neck and left shoulder on 13 September 2018 and the following day.
The report of the burn injury sustained by Mr Lazar on 26 August 2018 which is in evidence cannot be relied upon with any confidence because the report is written in the third person and the signature seems to be different to other signatures made by Mr Lazar which are found throughout the material that has filed in this dispute.
I also do not accept the submission made by Mr Stanton that Mr Lazar’s decision to claim against the insurer of the 2010 injury implies that Mr Lazar understood that there was a connection between the workers compensation claim dating back to injury in 2010, the ongoing development of long standing problems which included the need for treatment of the cervical spine by Dr Sanki in 2017, and the symptoms he experienced at Nepean River Dairy on 13 September 2018.
I agree with the response by Mr Doak that Mr Lazar would not be expected to have expert knowledge of how workers compensation claims are determined. Mr Lazar provides a quite reasonable explanation for making a claim upon that previous insurer because he was told that he was entitled to payment for another two years of treatment. However, Mr Lazar took active steps to claim against Nepean River Dairy once he was made aware that he had to make a new claim in regard to what occurred on 13 September 2018.
The submissions of the parties at the hearing concentrated on the injury to Mr Lazar’s cervical spine. From my review of the evidence, the injury to this body part was and remains the most serious. It is apparent that a separate injury to the left shoulder was not actively addressed by Mr Lazar until the middle part of 2019. I accept that it is not unusual for an injured worker to concentrate on the injury that is causing that worker the most immediate and serious concern, which in this case was the injury to the cervical spine.
Dr Dave diagnoses Mr Lazar as having adhesive capsulitis but his handwritten answers on 23 August 2019 are somewhat equivocal as to the cause of this condition. Dr Dave writes that there is no direct history of injury, but also acknowledges that neck pain can be a predisposing factor for this condition.
Dr Millons opines that Mr Lazar’s left shoulder problems almost certainly relate to the nature and conditions of work over the years and the normal activities of daily living, although he also opines that: “Following the incident on 17 September 2018 there was perhaps a more significant aggravation of the issues at the left shoulder”. That latter opinion would support a finding of an injury as provided for by section 4 (a) of the 1987 Act which is consistent with what was said in Mecha and Zickar.
A review of the medical evidence reveals that while Mr Lazar underwent a CT scan of the left shoulder in 2011 and ultrasounds of his left shoulder in 2013 and 2014, and Dr Sanki reported pain and discomfort in the left shoulder in January 2014 and limitations of abduction of the left shoulder in January 2015, there is then no further record of medical treatment for the left shoulder until after 13 September 2018.
Furthermore, Dr Chong found normal mobility and range of motion of both shoulders when Mr Lazar was examined in June 2018, just three months before the onset of symptoms in the left shoulder.
No expert engages in a comparison of the scans taken of the left shoulder before 13 September 2018 and the MRI scan dated 27 August 2019, which records bursitis, tendinosis and a tear of the tendon confluence. However, Mr Petrie has referred to the marked pathology in that MRI scan compared to little or no pathology being reported in the earlier imaging.
The lack of any medical treatment for the left shoulder between January 2015 and September 2017, the normal mobility and range of motion of the left shoulder found by
Dr Chong in June 2018, and the marked pathology found on the MRI scan in August 2019 compared to earlier imaging, leads me to conclude that the pulling of the pallets by Mr Lazar on 13 September 2018 caused a sudden pathological change in his left shoulder in addition to a sudden pathological change to his cervical spine from that same work activity.
I have therefore concluded from a review of the evidence that Mr Lazar sustained a sudden pathological change to both his cervical spine and left shoulder on 13 September 2018, which was caused by the pulling of pallets laden with empty plastic bottles, so that he sustained “an ‘injury’ in the primary sense”, being an injury provided for by section 4 (a) of the 1987 Act.
Mr Lazar did not sustain a disease injury as provided for by section 4 (b) of the 1987 Act because the evidence does not disclose that the cause of the onset of symptoms on 13 September 2018 was a failure of the cervical spine or left shoulder to cope with repeated stress imposed upon it over a period of time.
Stanley Business Enterprises will therefore not be required to contribute towards the payment to icare of any workers compensation benefits paid to or on behalf of Mr Lazar as a result of the injury he sustained on 13 September 2018.

The amount of workers compensation that has been paid to and on behalf of Mr Lazar, and the amount that Nepean River Dairy will be required to pay icare pursuant to section 145 of the 1987 Act

Nepean River Dairy and Mr Lazar have filed schedules which calculate pre-injury average weekly earnings (PIAWE), actual earnings upon Mr Lazar’s return to work in March 2020, and what should have been paid in weekly payments of compensation to Mr Lazar.
Mr Lazar calculates PIAWE to be $1,870.58. However, this is based upon earnings up to 4 September 2018. That calculation does not include earnings up to 13 September 2018, which I have found is the date of Mr Lazar’s injury.

Nepean River Dairy calculates PIAWE to be $1,767.50, which is based on earnings up to 19 September 2018. That includes up to six days of earnings after the date of injury, but unfortunately the pay advices do not provide a breakdown of earnings for each day worked by Mr Lazar, so that it is just not possible to calculate earnings up to 13 September 2018.

I consider the preferred calculation of PIAWE to be that made by Nepean River Dairy because it includes earnings up to the date of injury. I therefore accept PIAWE at $1,767.50.
The wages schedule that was filed by Nepean River Dairy prior to the hearing had calculations of actual earnings after Mr Lazar had returned to work which were in excess of what I had perused from Mr Lazar’s pay advices, and this was conceded by Mr Stanton at the commencement of the hearing. A revised wages schedule was filed by Nepean River Dairy on 25 January 2022 to correct this.
That revised schedule from Nepean River Dairy calculates, for the most part, actual earnings at lower rates than what has been calculated by Mr Lazar. For instance, in the period from 1 February 2021 to 18 March 2021, Mr Lazar calculates his actual earnings to be $450 per week, whereas Nepean River Dairy calculates actual earnings to be $517 per week. Given what amounts to a concession by Nepean River Dairy, I propose to accept the calculations made by Nepean River Dairy for actual earnings and what should have been paid in weekly payments of compensation to Mr Lazar. The difference, in any event, between the two sets of calculations is about $5,000.
The total amount of weekly payments of compensation that should have been to Mr Lazar up to 11 May 2021, which is based on the calculations made by Nepean River Dairy, is $143,538.
Mr Stanton submits that weekly payments of compensation pursuant to sections 36 and 37 of the 1987 Act should have been paid up to 19 March 2021, and has provided written submissions to support this calculation. He submits that Nepean River Dairy should not be liable for any payments pursuant to section 38 of the 1987 Act because there does not appear to be any evidence as to the following:
(a) Mr Lazar having made a written application for a continuation of weekly payments as required by section 38 (3)(a) of the 1987 Act; and
(b) the insurer having performed an assessment that Mr Lazar is likely to continue indefinitely to be incapable of undertaking further work or employment that would increase his current weekly earnings (section 38 (3)(c) of the 1987 Act).
Mr Doak for icare was invited to make submissions on this issue during the hearing but did not have instructions to do so. This was despite the issue being raised by Nepean River Dairy in written submissions which accompanied their wages schedule.
However, icare did provide further evidence on this issue in an Application to Admit Late Documents filed on 27 January 2022, even though leave had not been granted to them. That evidence included the following:
(a)    a signed request by Mr Lazar dated 7 March 2021 for weekly payments of compensation to continue pursuant to section 38 of the 1987 Act;
(b)    a file note from icare dated 16 March 2021 which sets out a consideration of the claim for weekly payments pursuant to section 38 of the 1987 Act; and
(c)    a letter from icare to Mr Lazar dated 30 March 2021 advising that he has met the special requirements to continue to receive weekly payments after 130 weeks.

Although leave was not granted to icare for this further evidence to be filed, I consider it is in the interests of justice for that evidence to be accepted. Having perused that further evidence from icare, I am satisfied that the requirements set out in section 38 (3) of the 1987 Act have been met and that those payments should also be met by Nepean River Dairy.

However, Nepean River Dairy should be given the opportunity to respond to the evidence provided by icare on this issue if it so chooses.
I therefore propose to make orders for the payment of monies by Nepean River Dairy to icare which includes the weekly payments of compensation made to Mr Lazar pursuant to section 38 of the 1987 Act. However, Nepean River Dairy will be given liberty to apply if it wishes to make further submissions on this issue within 14 days of the date of this decision.

The calculation of what is to be paid by Nepean River Dairy pursuant to section 145 (4) of the 1987 Act is as follows:
total amount of weekly payments that should have been paid to
Mr Lazar in the period of the Notice:   $143,538
medical and related expenses paid in the period of the Notice:         $54,098.66
total:   $197,636.66
less payments already made by Nepean River Dairy:  $63,491.22
amount payable by Nepean River Dairy to icare:  $134,145.44
There will be an order that the applicant is to pay the first respondent, pursuant to section 145 (4) of the 1987 Act, the sum of $134,145.44.

[2022] NSWPIC 40

02 February 2022