Sada v Woolworths Group Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sada v Woolworths Group Ltd [2024] NSWPIC 369
APPLICANT:	Samear Sada
RESPONDENT:	Woolworths Group Limited
MEMBER:	Karen Garner
DATE OF DECISION:	9 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66; accepted injury to lumbar spine and right hip; in 2014, claim for compensation pursuant to section 66 in respect of frank injury to lumbar spine with a date of injury of 28 May 2012 resolved by complying agreement pursuant to section 66A for 12% whole person impairment; claim for compensation pursuant to section 66 in respect of lumbar spine and right hip with a date of injury of 10 October 2017; whether applicant sustained lumbar spine and right hip on 10 October 2017; whether applicant precluded by section 66(1A) from making a claim for compensation pursuant to section 66 on the basis that it is a second claim; Held – applicant sustained an injury to his lumbar spine and right hip on 10 October 2017; injury sustained in the course of his employment; the applicant’s employment was the main contributing factor; applicant is entitled to pursue the claim for permanent impairment compensation; matter remitted to the President to be referred to a medical assessor for assessment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained an injury to his lumbar spine and right hip, with a date of injury of 10 October 2017, in the course of his employment, to which the applicant’s employment was the main contributing factor, pursuant to s 4(b)(i) of the Workers Compensation Act 1987. 2. Accordingly, I order as follows: a. the matter is remitted to the President to be referred to a Medical Assessor for an assessment as follows: Date of injury: 10 October 2017 Body parts: lumbar spine right lower extremity (hip) Method: whole person impairment. b. The materials to be referred to the Medical Assessor are to include: i. Application to Resolve a Dispute and attachments, and ii. Reply and attachments.

STATEMENT OF REASONS

BACKGROUND

Samear Sada (the applicant) is a 59-year-old man who was employed by Woolworths Group Limited (the respondent) from 1996 to 2019, in roles which included store person, picker and packer and forklift driver.
The applicant has claimed permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of two injuries:
(a) injury to his lumbar spine and right hip, with a date of injury of 28 May 2012 (the 2012 injury), and
(b) injury to his lumbar spine and right hip, with a date of injury of 10 October 2017 (the 2017 injury).
In relation to the 2012 injury:
(a) by a Worker’s Injury Claim Form dated 18 September 2013, the applicant claimed workers compensation in respect of left sacroiliitis, lumbar discopathy and spinal canal/foraminal stenosis;
(b) the respondent accepted liability, and
(c) by a Complying Agreement dated 11 July 2014 (the Complying Agreement) made pursuant to s 66A of the 1987 Act, the respondent paid the applicant $17,902.50 in respect of 12% whole person impairment (WPI) of the lumbar spine with a date of injury of 28 May 2019.
In relation to the 2017 injury:
(a)    an Incident Report dated 11 October 2017 recorded that on 10 October 2017 the applicant reported that he felt some pain in his right hip, which had been developing over approximately the previous five weeks;
(b)    an Employer Injury Claim Form dated 15 June 2018, recorded that a workers compensation claim was made in respect of right acetabular labrum tear, right hip trochanteric bursitis and right calcific tendonitis, with a date of reported injury of 10 October 2017;
(c)    on or about 8 September 2022, the applicant made a claim for lump sum compensation commensurate with a 20% WPI;
(d) by notice dated 10 October 2022 issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent’s insurer (the insurer) stated that liability for injury to the applicant’s lumbar spine was accepted. However, the insurer stated that the symptoms experienced by the applicant on 10 October 2017 was a “flare-up of symptoms” and “aggravation” of the 2012 injury. The insurer stated that the “injury” constituted the same pathology and, in accordance with s 322 of the 1998 Act, it was the same injury. The insurer stated that, by virtue of s 66(1A) of the 1987 Act, the applicant had no further entitlement because he had previously been compensated pursuant to s 66 of the 1987 Act in July 2014;
(e)    by letter dated 22 November 2023, the applicant made a claim for lump sum compensation commensurate with a 25% WPI, based on reports of A/ProfNigel Hope, orthopaedic surgeon dated 4 April 2023, and
(f) by notice dated 14 February 2024 issued pursuant to s 78 of the 1998 Act, the insurer again denied liability on effectively the same grounds stated in the previous s 78 notice.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

By Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 1 May 2024, the applicant seeks compensation pursuant to s 66 of the 1987 Act in the amount of $66,010, being 25% WPI in respect of the lumbar spine and right lower extremity, with a date of injury of 10 October 2017.
The respondent lodged a Reply to the ARD on 22 May 2024.
At a hearing before me on 20 June 2024, Mr Allen Parker, counsel, appeared for the applicant, instructed by Ms Najjar of Carroll & O’Dea Lawyers. Mr Brendan Jones, counsel, appeared for the respondent, instructed by Mr Mitris of BBW Lawyers.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

At the hearing, the respondent’s counsel confirmed that the respondent does not dispute injury to the applicant’s lumbar spine and right hip per se.
The parties agreed that the following issues remain in dispute:
(a) whether the applicant sustained a “new” injury in 2017, in which case the matter can be referred to a Medical Assessor for assessment of the degree of WPI, or
(b) whether the applicant sustained only the 2012 injury which was the subject of the Complying Agreement, in which case the applicant is not entitled to further compensation for permanent impairment, by virtue of the operation of s 66(1A) of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.

Oral evidence

No application for cross-examination was made and no oral evidence was given.

Applicant’s evidence

The applicant gave evidence by way of statement’s dated 17 August 2022 and 27 March 2024. In summary, the applicant stated:
(a)    he was employed by the respondent from 1996 to 2019, in roles which primarily included store person, picker and packer and forklift driver;
(b)    the applicant’s duties required him to undertake various physical work which included repetitively bending, lifting and moving items and driving a forklift;
(c)    some time in 2010, the applicant first noticed experiencing back pain and the applicant’s pain and symptoms gradually increased from that time. Various treatments did not resolve the applicant’s pain and the applicant was referred to A/Prof Mark Sheridan, neurosurgeon;
(d)    on or about 25 May 2012, the applicant submitted a claim for workers compensation in relation to the injury;
(e)    A/Prof Sheridan identified medical concerns relating to L4, L5 and S1 discs and sciatica and recommended a microdiscectomy, which was approved by the insurer;
(f)    on 8 April 2013, the applicant underwent microdiscectomy surgery, performed by Dr Sheridan;
(g)    following the surgery, the applicant took approximately four weeks off work to recover from the surgery. The applicant subsequently returned to work as requested by the respondent’s management even though he felt that he required more time off work. The applicant was initially given office and paperwork type duties which included labelling boxes and pallets. The work was mostly non-intrusive, however the applicant struggled with reaching up to place the sticker labels on the pallets when they were stacked up high and out of reach. The applicant was also sometimes required to restock pallets, which requiring bending over and lifting boxes;
(h)    in 2017, a change of the respondent’s policy required leading hands including the applicant to rotate to work on the floor as well. The respondent ignored the applicant’s injury and need for modified and light duties. The applicant was placed on the hauling machine two days each week, each for nine continuous hours with only two breaks of 12 minutes and 30 minutes respectively. In that role, the applicant was required to stand on a concrete floor for a nine-hour shift. Although the applicant complained to his manager that he would need to sit down during the shift, nothing changed and he was expected to continue that role despite his injury. When the applicant tried to get a chair to sit on, he was reprimanded, the chair was taken away and he was asked not to get a chair again. The applicant was also required to regularly lift and change plastic rolls which weighed approximately 30 kilograms each;
(i)    after working in that hauling machine role, the applicant began to experience pain in his right hip. The applicant informed management of his concerns that his duties in the hauling machine role were not compatible with the modified duties recommended by his doctor. After the pain became so severe that he could barely walk, the applicant formally reported the injury to the respondent. Some time later in about 2018, the respondent ultimately accepted liability for the injury;
(j)    the applicant continued to experience debilitating pain. On 7 August 2018, the applicant underwent further spinal surgery, performed by Dr Bisham Singh, spinal surgeon;
(k)    in 2019, the applicant ceased employment with the respondent due to redundancy, and
(l)    the applicant continues to experience ongoing debilitating pain and discomfort which has negatively impacted his life.

Treating medical evidence

Dr (Christopher) Gavin Soo, orthopaedic surgeon

In a report dated 14 March 2019, Dr Soo stated that the applicant “continues to get pain from his gluteal tendinopathy” of his right hip.
In a report dated 3 October 2019, Dr Soo stated that the applicant “continues to be troubled by his gluteal tendinopathy and trochanteric bursitis” of his right hip.

Dr Sebastian Calvache-Rubio, nominated treating doctor

In a reports dated 14 June 2018 and 4 July 2019, Dr Calvache-Rubio stated that the applicant suffered a right hip injury with a date of injury of 10 October 2017, with a diagnosis of right acetabular labrum tear, right hip trochanteric bursitis, right calcific tendonitis and chronic pain with psychological barriers. Dr Calvache-Rubio recorded a history that:
“On Tuesday, 10 October 2017, [the applicant] reported that whilst at work he suffered a [right] hip injury from repetitive lifting, bending and kneeling for over 23 years of work. This condition deteriorated after back injury from chronic limping and overcompensation for the past 7 years.. Had laminectomy in 2011 and continue working with a residual limping favouring [right] leg to avoid [left] sciatic nerve pain.
From my understanding of the [applicant’s] role as a Store person, it would be reasonable to conclude that the mechanism of injury was the direct result of performing those specified tasks. The history given is consistent with employment being the main contributing factor to the injury. I do not have medical evidence to indicate an alternate mechanism of injury, but would be happy to consider such evidence if provided to me.”

Dr Bisham Singh, orthopaedic and spine surgeon

In a report dated 24 November 2019, Dr Singh recorded a history that the applicant sustained a lower back in jury in 2012 and underwent a microdiscectomy at L4/5 under the care of Dr Mark Sheridan. Dr Singh stated that:
“More recently he has been having right-sided hip pain which has been provisionally diagnosed as possible FAI.
However in the last six weeks his back pain has flared up, and he is unable to lie flat. He has significant neurogenic claudication, and pins and needles down both legs. Sitting tolerance is quite good, and he finds that when he stoops he feels better.
History and examination is positive for lumbar canal stenosis, and this is secondary to the disc bulging at L3/4. At L4/5 on his MRI scan, there is a residual disc bulge on the left side. Hip range of motion on the right side is free.”
In a report dated 25 February 2020, Dr Singh stated that the applicant was in significant distress from back and leg pain and had very poor standing and walking tolerance. Dr Singh stated that a MRI scan of the lumbar spine revealed severe stenosis at L3/4 and moderate stenosis at L4/5. Dr Singh recommended that the applicant undergo L3 to L5 decompression surgery.

Imaging

The evidence includes reports of various imaging.
A CT Lumbosacral Spine Report dated 29 May 2012 reported “disc bulges throughout the mid to lower lumbar spine producing mild canal stenosis. Degenerative facet joint changes are also evident”.
An Multipositional MRI Lumbo-Sacral Spine Report dated 20 June 2012 reported:
“CONCLUSION:
1.      Congenitally narrow canal due to short pedicles.
2.      Multi level diffuse disc bulges and osteophytes with canal stenoses, particularly marked from L2/3 to L4/5.
3.     The canal stenoses are moderate in nature, particularly at L3/4 and L4/5.
4.      The disc osteophyte at L4/5 is causing potential irritation to the left L5 descending nerve root and there is contact to the S1 nerve roots within their lateral recesses.”
An MRI Lumbar Spine Report dated 11 April 2013 reported:
“CONCLUSION:
Status post left sided laminotomy and discectomy L4/5. Recurrent/residual left posterior paramedian disc protrusion and nerve root impingement at this level. Intraspinal granulation tissue.”
An X-ray Lumbar Spine Report dated 9 January 2017 reported:
“Findings:
L1/2 disc ls of normal height.
Mild anterior narrowing of the L2/3 disc noted. Endplate thickening and marginal spurring noted. Facet arthrosis present at this !evel.
L3/4 disc is of normal height There is early thickening of the endplates. There is also focal calcification of the ALL.
Mild posterior narrowing of the L4/5 disc noted. There is early thickening of the endplates. Facet joints define normally.
Mild posterior narrowing of the L5/S1 disc present. Endplates are also thickened with early marginal lipping,
Facet joint margins are noted to be thickened.
There is normal alignment of the lumbar spine.
Developmental shortening of the fewer lumbar pedicles noted”
An X-ray Pelvis Report dated 9 November 2017 reported “Mild degenerative change in both hips with features of femoroacetabular impingement”.
An MRI Right Hip Report dated 24 November 2017 reported:
“Conclusion:
1. Femoroacetabular impingement anatomy particularly occurring on the acetabular side of the articulation secondary to over-coverage of the femoral head with complex chronic degeneration and tearing of the entire acetabular labrum, acetabular rim lesion and evolving osteoarthritis of the hip joint as described.
2. 6mm maxima! dimension focus of calcific tendonitis (calcium hydroxyapatite deposition disease) of the anterior insertional fibres of gluteus medius with associated trochanteric bursitis. Background changes of moderate gluteus minimis insertional tendonosls.”
An Right Hip Injection Report dated 19 July 2018 reported injection of submaximus bursa.
An Right Hip Injection Report dated 14 November 2018 reported injection of significantly thickened trochanteric bursa.
An MRI Pelvis and Right Hip Report dated 16 January 2019 reported some similar findings to a previous MRI from November 2017:
“Interpretation:
1.      There is no MRI evidence of piriformis syndrome.
2.      Complete labral tear, bilateral CAM-type femoroacetabular impingement and bony enthesopathic changes, predominantly in the anterosuperior acetabulum, al l unaltered.
3.      Significant insertional tendinopathy involving the gluteus medius and minimus tendons with severe partial-thickness interstitial tears at the gluteus medius attachment. Associated mild trochanteric bursitis. These are also unaltered.
4.      Right-sided hamstring tendinopathy.”
An X-ray Lumbar Spine Report dated 4 May 2021, reported:
“Comparison is made with the prior study performed 21/12/2020.
There is straightening of the lumbar lordosis. Alignment is similar to that of the prior examination in December.
There is anterior disc osteophyte disease at L3/4. End plate sclerosis is demonstrated at L4/5 and L5/S1. Facet arthrosis L2/3, L3/4. L4/5 and L5/S1.”
An MRI Lumbar Spine Report dated 4 May 2021, reported:
“Comparison:
Comparison has been made with the prior study performed 17/7/2020.
...
L4/5 posterior lumbar decompressive laminectomy on a background of multilevel disc disease. Since the study in July 2020 there has been development of a large left lateral recess disc protrusion effacing the left lateral recess and likely impinging on the descending nerve roots.”

31. An MRI Lumbosacral Spine Report (undated), reported by Dr John O’Rourke stated:

“Multilevel spondylotic changes.
At L3/ 4, there is a broad right para central disc protrusion which in association with flaval hypertrophy and facet joint OA is causing severe central canal stenosis with clear impingement of the traversing right > left nerve roots. Redundancy of nerve roots proximal to this.
At L4/5 a broad left paracentral disc protrusion clearly posteriorly displacing and compressing the traversing left > right LS nerve roots in the lateral recess.”

An MRI Lumbosacral Spine Report (undated), reported by Dr Tomokazu Nishiguchi with Dr O’Rourke stated:
“Conclusion:
Status post posterior decompression.
Post-surgical fluid collection and disc bulging remain at L3/ 4 and L4/5 associated with mild thecal sac deformity, however there is no significant nerve root encroachment or abnormal post-contrast enhancement is seen.”
An X-ray Lumbosacral Spine Report (undated), reported by Dr O’Rourke stated:
“Clinical notes: Post disc bulging with canal stenosis, previous L4/5 discectomy.
In the AP views, there is mild tilt to the left.
Lateral view demonstrates clear straightening of normal lumbar lordosis. Multilevel spondylotic changes with mainly anterior disc margin osteophytosis particularly at L2/3, L3/ 4 and L5/S1 levels. Clear facet joint OA at L4/5 and L5/S1. No wedge or insufficiency fracture.”

Other evidence

Return to Work Plan dated 13 November 2013

A Return to Work plan dated 13 November 2013 described the duties that the applicant was to complete as: receiving; forklift (2 x 30 minutes daily); leading hand duties; lifting up to 5kg at waist level (occasionally); seven hours x four days. It stated that the applicant’s work restrictions in accordance with the WorkCover Medical Certificate were: lifting up to 5kg at waist level (occasionally); sitting/standing up to 30 minutes; pushing/pulling up to 5kg (occasionally); bending, twisting or squatting (not repeatedly); seven hours x four days.

Exercise Physiology Management Plan

An Exercise Physiology Management Plan dated 19 November 2013 recorded a diagnosis of “Left sacroiliitis and lumbar discopathy, spinal canal/foraminal tenosis [sic]”. It stated that the applicant’s functional limitations were: reduced hours; lifting from floor – 5kg; lifting at waist – 8kg; push – 5kg; pull – 8kg; reduced confidence with tasks; and no repetitive bend/twist/squat. Its recommendations included eight weekly supervised sessions. It stated that anticipated outcomes were: normal hours; lifting from floor – 10kg; lifting at waist – 10kg; push – 10-15kg; pull – 10-15kg; increased confidence with tasks; and self-managed squat/bend/twist.

Injury Management Plan

An Injury Management Plan (undated) prepared by the insurer noted injury to the right hip and lower back with a date of injury of 10 October 2017 and required the applicant to comply with his obligations under the Injury Management Plan.

Certificates of Capacity

The evidence includes various Certificates of Capacity. The applicant was certified to have current work capacity at various times, subject to various work restrictions.

Clinical records

Clinical records of A/Prof Mark Sheridan included the following:
(a)    on 29 May 2012, a CT Lumbosacral Spine was reported to show disc bulges throughout the mid to lower lumbar spine producing mild canal stenoses and also degenerative facet joint changes. This included a mild loss of disc space height at the L2/3 and L3/4 levels, mild generalised disc bulges at the L2/3 and L3/4 levels and mild degenerative facet joint changes at the L2/3 and L3/4 levels. There was mild loss of disc space height and mild degenerative facet joint changes at L4/5 and L5/S1 levels;
(b)    on 25 June 2012, Dr Guirgis referred the applicant to A/Prof Sheridan for lower back pain, associated with stiffness and numbness, extending to involve the lower limb, with lumbar discopathy with radiculopathy;
(c)    on 20 July 2012, A/Prof Sheridan stated that the applicant had a left sided L4-5 disc protrusion with nerve compression worse on extension;
(d)    on 7 February 2013, A/Prof Sheridan noted that approval had been given for the applicant to undergo L4-5 microdiscectomy;
(e)    on or about 8 February 2013, the applicant underwent left L4/5 microdiscectomy performed by A/Prof Sheridan;
(f)    on 10 April 2013, A/Prof Sheridan reported that the applicant had a good result from the L4-5 microdiscectomy surgery with almost complete resolution of his back and leg pain, however had experienced some recurrence of pain over the previous week;
(g)    on 23 April 2013, A/Prof Sheridan reported tht the applicant still had some persisting leg pain although it was better than before. Follow up MRI scan showed some inflammatory tissue around the L4-5 level consistent with some persisting nerve irritation and post-operative change;
(h)    on 26 June 2013, A/Prof Sheridan reported that the applicant was continuing to slowly improve although he still had some back and leg pain. A/Prof Sheridan recommended that the applicant continue to gradually increase his hours to five and six hours per day over the next month or two;
(i)    on 10 September 2013, A/Prof Sheridan reported that the applicant had been managing reasonably well and his pain remained under control. A/Prof Sheridan recommended that the applicant increase to seven to eight hours over the next two months and was currently on a 2kg lifting limit. A/Prof Sheridan stated that after the applicant returns to normal hours in the New Year, he could also start to increase his lifting limits.
Clinical records of Dr Emil Guirguis, Guirguis Family Medical Practice, included the following:
(a)    on 1 June 2012, Dr Guirguis recorded that the applicant reported that on 2 May 2012 he felt lower back pain at work, “as an exacerbation of old standing lumbar discopathy that occurred at the same work place 04/06/2002”. Dr Guirgis recorded symptoms which included limited range of movement, localised tenderness over L4,5 and S1 and tenderness over the sacroiliac joint. Dr Guirguis diagnosed lumbar discopathy and sciatica;
(b)    on 27 June 2012, Dr Paul Clouston, neurologist, reported to Dr Guirguis a history that the applicant had experienced back pain for about the previous two or three months after his work duties were changed and the applicant was required to stand beside a packing belt for up to nine hours per day. Dr Clouston stated that the applicant had noticed increasing lower back pain and pain going down the left leg to the foot with paraesthesia and numbness. Dr Clouston stated that an MRI showed a moderate L3/4, L4/5 spinal canal stenosis;
(c)    on various subsequent occasions during 2012, Dr Guirguis recorded that the applicant experienced similar symptoms. On 5 December 2012, the applicant was “just coping” with his light duties work;
(d)    on 13 February 2013 and 7 March 2013, Dr Guirguis recorded that the applicant’s symptoms were “better” following the left L4/5 microdiscectomy performed by A/Prof Sheridan (on or about 8 February 2013);
(e)    on 9 April 2013, Dr Guirguis recorded that the applicant presented with lower back pain, associated with stiffness and numbness, which extended to involve the lower limb. The applicant’s symptoms occurred in episodes, which were increased towards the end of the day or by sitting or standing for long periods;
(f)    on 21 March 2013, Dr Guirguis recorded that the applicant’s symptoms were letter with recovery;
(g)    on 22 April 2013, Dr Guirguis recorded that the applicant was “just coping with current work duties”;
(h)    on 3 June 2013, Dr Guirguis recorded that the applicant experienced lower back pain, associated with stiffness and numbness, which extended to involve the lower limb. The applicant’s symptoms occurred in episodes, which were increased towards the end of the day or by sitting or standing for long periods;
(i)    on 30 August 2013, Dr Guirguis recorded that the applicant was “just coping” on current light duties;
(j)    on 30 September 2013, Dr Guirguis recorded that the applicant experienced lower back pain, associated with stiffness and numbness, which extended to involve the lower limb. The applicant’s symptoms occurred in episodes, which were increased towards the end of the day or by sitting or standing for long periods;
(k)    on 11 December 2013, Dr Guirguis recorded that the applicant was “better” and that the applicant asked for return to work on a full-time basis;
(l)    on 6 January 2014, Dr Guirguis recorded that the applicant asked to go back on normal hours;
(m)     on 11 September 2014, Dr Guirguis recorded that the applicant experienced lower back pain, associated with stiffness and numbness, which extended to involve the lower limb. The applicant’s symptoms occurred in episodes, which were increased towards the end of the day or by sitting or standing for long periods;
(n)    on 9 January 2017, Dr Guirguis recorded that the applicant reported lower back pain, associated with stiffness and numbness, extended to involve the lower limb, increased in frequency by the passage of time, occurred in episodes which were increased towards the end of the day and by sitting or standing for long periods and by lifting weights;
(o)    on 11 October 2017, Dr Guirguis recorded that the applicant reported lower back pain, associated with stiffness and numbness, extended to involve the lower limb, increased in frequency by the passage of time, occurred in episodes which were increased towards the end of the day and by sitting or standing for long periods and by lifting weights;
(p)    on 9 November 2017, Dr Guirguis recorded a potential diagnosis of right sacroiliitis, and
(q)    on 13 November 2017 and on 14 February 2018, Dr Guirguis recorded that the applicant reported hips pain and limping, which increased in severity towards the end of the day and sometimes at night, and was increased by prolonged sitting, standing, walking and using stairs.
Clinical records of The Workers Doctors included the following:
(a)    on 12 June 2018, Dr Calvache-Rubio recorded right hip pain and injury with a history that the applicant had been limping for the last six years after back injury, doing modified duties but still pulling and pushing, and the applicant experienced ongoing pain which was worse after work;
(b)    on 12 June 2018, physiotherapist Ryan Heuston, recorded that the applicant had right hip pain and that the mode of injury was overcompensation by standing on right leg due to previous left leg sciatica. Mr Heuston recorded that the applicant worked permanently modified duties due to a 2012 back problem, worked as receiving leading hand and performing office work. Mr Heuston recorded that the applicant was still working 36 hours per week, lifting 5kg, performing light pushing trolley and scanning and using a machine which involved standing on the machine;
(c)    on 14 June 2018, Dr Calvache-Rubio recorded that the applicant experienced right hip pain and numbness. Dr Calvache-Rubio diagnosed a right hip injury, being right acetabular labrum tear, right hip trochanteric bursitis, right calcific tendonitis and chronic pain with psychological barriers, with a date of injury of 10 October 2017. Dr Calvache-Rubio recorded a history that:
“... Mr Sada works for his employer as a Store person.
On Tuesday, 10 October 2017 Mr Sada reported that whilst at work he suffered a R) hip injury from repetitive lifting, bending, kneeling for over 23 years of work. This condition deteriorated after back injury from chronic limping and overcompensation for the past 7 years. Had laminectomy in 2011 and continue working with a residual limping favouring R) leg to avoid L) sciatic nerve pain.
From my understanding of the injured worker’s role as a Store person, it would be reasonable to conclude that the mechanism of injury was the direct result of performing those specified tasks. The history given is consistent with employment being the main contributing factor to the injury. I do not have medical evidence to indicate a alternate mechanism of injury, but would be happy to consider such evidence if provided to me.”;
(d)    on 21 June 2018, physiotherapist Lan Phuong Van reported that the applicant had ongoing right hip paid and was working permanent modified duties, 36 hours per week, and noticed hip pain by the end of the day;
(e)    on 21 June 2018, Dr Lim recorded that the applicant reported ongoing hip pain;
(f)    on 29 June 2018, Dr Calvache-Rubio recorded a history that the applicant “Last year noticed right hip pain” but did not report back pain. Dr Calvache-Rubio diagnosed trochanteric bursitis secondary to underlying calcific tendonitis to his right gluteus medius;
(g)    on 16 July 2018, Dr Calvache-Rubio recorded that the applicant had ongoing hip pain and required cortisone injection;
(h)    on 21 August 2018, Dr Soo recorded that the applicant had persisting pain to his right trochanteric region following cortisone injection to his right hip for trochanteric bursitis;
(i)    on 16 October 2018, Dr Tonje Vestol recorded that the applicant had hip pain with a history a right hip injury from repetitive lifting and bending, and
(j)    on 13 November 2018, Dr Soo recorded a history that the applicant’s pain “has been now going 1 year now to his hip”. Dr Soo stated that he felt that the applicant’s pain is not related to his femoroacetabular impingement on MRI, and his main problem is trochanteric bursitis with associated calcific tendonitis to his gluteal tendinopathy.
Clinical records of NSW Spine Specialists, Dr Bhisham Singh included the following:
(a)    on 24 December 2019, Dr Singh reported that the applicant had recently been having right-sided hip pain which had been provisionally diagnosed as possible femoroacetabular impingement. Dr Singh noted that over the last six weeks, the applicant’s back pain had flared up, he was unable to lie flat, he had significant neurogenic claudication and pins and needles down both legs;
(b)    on 25 February 2020, Dr Singh reported that the applicant continued to be in significant distress from back and leg pain. Dr Singh stated that the MRI scan of the applicant’s lumbar spine revealed that he has severe stenosis at L3/4 and moderate stenosis at L4/5 and he recommended surgery being L3 to L5 decompression;
(c)    on 7 August 2020, the applicant underwent L3-L5 Decompression and Rhizolysis performed by Dr Singh;
(d)    on 16 September 2020, Dr Singh reported that the applicant was doing well following L3 to L5 decompression and his pain had disappeared completely although he still experiences some tingling in the calves;
(e)    on 29 September 2020, Dr Singh reported that the applicant continued to experience pins and needles in the legs. An MRI showed that there was adequate central decompression of the neurological elements from L3 to L5;
(f)    on 16 December 2020, Dr Singh reported that the applicant’s back pain was much better than prior to surgery although he still experienced some cramping pain and pins and needles in the legs, and
(g)    on 19 February 2021, Dr Singh reported that the applicant had ongoing symptoms from a recurrence of disc herniation at L4/5.
Clinical records of Dr Peter Khong, neurosurgeon, included the following:
(a) on 3 July 2020, Dr Khong recorded the following history:
“Storeperson for 10 years, then receiving/leading hand for 14 years
In 2002, had back injury
2013 L4/5 microdiscectomy, helped with left leg pain
On modified duties until 2017
Then put on hauling duties requiring him to stand for 9 hours
Complained of right hip pain
Injury October 2017
Complained of right hip pain
Around 6 months ago started getting bilateral lower back p ain
Radiates to the left buttock, posterior left thight, lateral left leg to to [sic] dorsum left foot and big toe
Some right buttock pain
Left leg pain is the worst pain currently...”
(b) on 6 May and 7 May 2020, Dr Khong reported an impression that:
“Mr Sada presents with approximately 6 months of increasing lower baack [sic] pain and left leg pain in a ? L5 distribution. He had a previous back injury year ago and has had a previous left L4/5 discectomy. His MRI demonstrates a recurrent/residual disc herniation on the left at L4/5, as well as a central and right sided disc herniation at L3/4...”.

Independent medical evidence

A/Prof Nigel Hope, orthopaedic surgeon

A/Prof Hope provided independent medical evidence, qualified by the applicant.
In a report dated 4 April 2023, A/Prof Hope diagnosed lumbar 3/4/5 decompression and right hip gluteal tendonitis. A/Prof Hope stated that the applicant’s 2012 injury had fully recovered following surgery, “as indicated by the fact that lumbar symptoms were completely resolved after surgery”. A/Prof Hope stated that the applicant’s lumbar spine and right hip were injured on 10 October 2017 in the course of the applicant’s employment, which was a new injury.
In relation to the mechanism of the applicant’s injuries, A/Prof Hope stated:
“Mechanism of Alleged Injuries and Management
Injury 1
On 28 May 2012, picking and packing was being undertaken. Multiple lifting of over 20 kg boxes caused lumbar pain. On 8 April 2013, an L4/5 discectomy was performed by Dr Sheridan. A return to limited hours then full hours was undertaken. Desk duties were performed. There were no ongoing lumbar symptoms indicating this injury had fully recovered.
Injury 2
On 10 October 2017, work on the hauling machine was undertaken for 2 days. This involved alternating driving and observing. A loading machine is driven that moves the pallet onto the conveyor belt. Then the conveyor belt is observed and the plastic wrapping changed by lifting a 30 kg roll and loading it onto a bar. This induced lumbar and right hip pain. On 7 August 2020, L3/4/5 decompression and rhizolysis was performed by Dr Singh. Dr Soo, orthopaedic surgeon, was consulted regarding the right hip condition and a gluteal enthesopathy diagnosed and non-operative management recommended. There was a partial recovery from the lumbar and right hip conditions.”
In a further report dated 4 April 2023, A/Prof Hope stated that he assessed 25% total WPI, calculated on the basis of 15% WPI in respect of the lumbar spine and 12% WPI in respect of the right hip.

Dr Yuk Kai Lee, orthopaedic surgeon

Dr Lee provided independent medical evidence, qualified by the respondent.
Dr Lee assessed the applicant over a period of time, commencing in 2012.
In a report dated 7 December 2012, Dr Lee recorded a history of the applicant’s back and hip symptoms. Dr Lee stated that “Successful L4-5 microdiscectomy would resolve the leg pain. It may not resolve the back pain...”.
In a report dated 9 March 2022, Dr Lee stated the following diagnosis in respect of the applicant’s lumbar spine and right hip:
“Mr Sada had a large recurrent prolapse at L4/5.
...
Mr Sada had L4 laminectomy but the L4/5 disc prolapse deteriorated. The L5/S1 disc bulge also became bigger. For his right hip, he had femoral acetabular impingement and associated trochanteric bursitis. Probably from inactivity, the right hip improved after his back surgery.”
Dr Lee recorded the following history of ongoing symptoms and treatment:
“Mr Sada worked for Woolworths since 1996. He injured his back many years ago and had microdiscectomy in 2013. His job changed to receiving hand. It was basically office work but sometimes also involving pushing the trolley. Sometimes he also had to help unloading items using a machine. He progressively deteriorated. I saw him previously on a number of occasions. Last time when I saw him on 05/05/2020, Dr Singh proposed further surgery to his back and I agreed it was a correct recommendation. He had laminectomy on 07/08/2020. Unfortunately, he did not improve much. Before the operation, there was back pain radiating to the left leg. There was pain in his right hip. After the operation, the back pain improved but he noticed numbness in both legs. He cannot stand for 10 minutes and he cannot walk more than 15 minutes. He cannot sleep properly. The symptoms in his legs did not improve.”
Dr Lee stated that “Mr Sada’s current incapacity for work resulted from his longstanding back injury. The effects of the injuries have not ceased. He cannot stand or walk for 10 minutes. He has constant back pain and leg numbness. He still has continuing back symptoms.”
Dr Lee stated that he assessed total 15% WPI, calculated on the basis of 15% in respect of the lumbar spine, 0% in respect of the right hip and 0% in respect of scarring.
In a report dated 4 October 2022, Dr Lee stated that, after consideration of Dr Truskett’s assessment and the previous assessment of 12% WPI in respect of the lumbar spine, he now assessed total 9% WPI, calculated on the basis of 3% in respect of the lumbar spine (after deduction in respect of the pre-existing impairment) and 6% in respect of the right hip.
In a report dated 9 February 2024, Dr Lee recorded the following history:
“Mr Sada worked for Woolworths since 1996. He injured his back many years ago and had microdiscectomy in 2013. His job changed to receiving hand. It was basically office work but sometimes also involving pushing the trolley. He also had to help unloading items using a machine. His back progressively deteriorated. I saw him previously on a number of occasions. When I saw him on 05/05/2020, Dr Singh proposed further surgery to his back and I agreed it was a correct recommendation. He had laminectomy on 07/08/2020. Unfortunately, he did not improve much. Before the operation, there was back pain radiating to the left leg. There was pain in his right hip. After the operation, the back pain improved but he noticed numbness in both legs. He could not stand for 10 minutes and he could not walk more than 15 minutes. He could not sleep properly. The symptoms in his legs did not improve. He was then re-assigned to the office. His hip remained painful especially at night. He took panadeine forte and celebrex. He stopped celebrex because of side effects.
Mr Sada claimed he injured his right hip on or around 10/10/2017...
...
EMPLOYMENT HISTORY
Mr Sada started work with Woolworths in 1996 as a store person. He injured his back in 2012 and he was on modified light duties since. He had surgery to his back in 2013. He did not do other jobs in Australia...
...
SUBSEQUENT INJURIES
The pain in Mr Sada’s right hip improved slightly after surgery.
...
TREATMENT TO DATE AND OUTCOME
Mr Sada had microdiscectomy in 2013 for left sciatica and back pain. He improved and returned to permanent modified duties working in the office.
He was asked to go back onto the floor in 2017 and sustained injury to his right hip. He Had 2 injections with temporary relief. He deteriorated and had another surgery to his back on 07/08/2020. He did not improve much after this surgery especially the numbness in both legs...”

Dr Lee diagnosed residual large disc prolapse L4/5 after laminectomy and expressed the opinion that the applicant suffered “fail back syndrome”. Dr Lee stated that the applicant’s “right hip problem is most likely referred pain form [sic] the back. It is possible he also has trochanteric bursitis”.
In relation to whether the applicant sustained a “new” injury on 10 October 2017, Dr Lee stated “Mr Sada had pain in the right trochanteric region on or about 10 October 2017 which was most likely referred pain from the back. I consider it a continuation of the ‘old’ back injury in May 2012”. Dr Lee also stated “Mr Sada’s lumbar spine injury is a continuation of the injury to his aback in 2012. The right hip injury was on 10/10/ 2017”.[1]
[1] Reply, page 17, paragraph (n).
Dr Lee stated that he assessed 18% total WPI, calculated on the basis of 15% WPI in respect of the lumbar spine 3% WPI in respect of the right hip.

SUBMISSIONS

Counsel’s submissions were recorded and have been considered in full.

Applicant’s submissions

Mr Parker’s submissions on behalf of the applicant may be summarised as follows:
(a)    it is common ground that the applicant sustained a work injury to his lumbar spine in 2012, underwent surgery in 2013 and then returned to work on restricted duties;
(b)    the evidence establishes that the applicant performed work as required, which fell outside of the restricted duties, which caused the applicant to sustain a further injury to his lumbar spine in 2017 due to the nature and conditions of work and also pain in his right lower limb;
(c)    medical opinion varies as to whether the injury to the applicant’s right lower limb is due to the nature and conditions of work, or consequential to the back injury;
(d)    the evidence of A/ProfHope supports a finding that the injury is a “new” injury;
(e)    Dr Lee’s opinion also supports a finding that the injury is a “new” injury;
(f)    the applicant relies on Lagana v Australian Retirement Partners Realty Pty Ltd [2015] NSWWCCPD 55, and
(g) accordingly, the applicant is entitled to workers compensation pursuant to s 66 in respect of the 2017 injury.
Mr Jones’ submissions on behalf of the respondent may be summarised as follows:
(a)    the respondent’s case is that the 2017 injury is a continuation of the 2012 injury in respect of which the applicant received permanent impairment compensation;
(b)    it is common ground that if the 2017 injury is not a “new” injury, then the applicant has no entitlement to permanent impairment compensation: Walters v Good Guys [2023] NSWPICPD 29 (Walters);
(c)    the treating medical evidence demonstrates that the L4/5 area is the precise area which is the subject of the 2012 injury and the 2013 surgery also included L3. Further, it demonstrates that the applicant continued to experience ongoing symptoms;
(d)    the 2017 symptoms are near identical to the 2012 symptoms. Further, the clinical history of the applicant’s symptoms from 2012 is entirely consistent with the continuation of those issues rather than a “new” injury. The applicant’s 2018 hip pain was referable to limping since the back injury which indicates a continuation of the 2012 injury;
(e)    the evidence shows that the underlying back pathology was not corrected by the 2013 surgery. Dr Lee’s prognosis given in his report dated 7 December 2012, that “Successful L4-5 microdiscectomy would resolve the leg pain. It may not resolve the back pain...” was what has occurred;
(f)    the evidence demonstrates that the 2012 injury was never completely corrected and never ceased, and further, it has progressively deteriorated since that time. It is not a “new” injury;
(g)    the evidence also demonstrates that the applicant’s right hip condition is most likely a consequential condition causally linked to the 2012 injury which has not ceased;
(h)    Dr Lee’s apportionment in calculation of WPI is not indicative of a “new” injury per se because it is limited to the calculation of impairment: Walters at [53];
(i)    the opinion of A/Prof Hope dated 4 April 2023 was not provided in a “fair climate” and should not be given weight, because it is incorrect that the applicant recovered fully from the 2012 injury and had no ongoing lumbar symptoms from the 2012 injury. Further, there is no new lumbar spine pathology. A/Prof Hope did not explain how and why the applicant sustained a “new” injury despite the same pathology, and
(j)    in the event that the Commission did not make an award for the respondent, the appropriate course is that the matter is referred to a Medical Assessor to assess WPI in respect of the injury.
Mr Parker’s submissions in reply on behalf of the applicant may be summarised as follows:
(a) the applicant’s claim is basically a nature and conditions claim in respect of both the 2012 injury and the 2017 injury, and
(b) Dr Lee’s report noted that the applicant’s condition progressively declined following the change in the applicant’s job to receiving hand also performing machine work. That is significant because those duties, which the applicant had not previously been performing, caused the applicant’s 2017 injury and led to the 2020 surgery.

LEGISLATION

The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
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 was 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
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 9A of the 1987 Act states:
“(1)    No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4).
(1)    The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f)the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)     This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
A commonsense evaluation of the causal chain is required. The legal test of causation was set out by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[2] (Kooragang).
[2] (1994) 35 NSWLR 452; 10 NSWCCR 796, at [461] (Sheller and Powell JJA agreeing).
The Court of Appeal in Nguyen v Cosmopolitan Homes[3] held that a tribunal of fact must be actually persuaded of the occurrence or existence of the fact before it can be found, and stated:
“(1)    A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)     Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)     Where circumstantial evidence is relied upon, it is not in general necessary that all reasonably hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found, and
(4)     A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[3] [2008] NSWC 246.
Section 66 of the 1987 Act relevantly states:
“66 Entitlement to compensation for permanent impairment
(1) A e worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note—
No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.
(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.
,,, “
(Inserted by the Workers Compensation Legislation Amendment Act 2012 No 53, Schedule 2, Item 2.1, operative from 27 June 2012.)
Section 66A of the 1987 Act relevantly states:
“66A Agreements for compensation
(1)     In this section, complying agreement means a written agreement—
(a) under which a worker who has received an injury, and an employer or insurer, agree as to the degree of permanent impairment that has resulted from the injury, and
(b) in which there is a provision in which the employer or insurer certifies that it is satisfied that the worker has obtained independent legal advice, or has waived the right to obtain independent legal advice, before entering into the agreement.
(2)     If a worker enters into a complying agreement in relation to an injury, the permanent impairment compensation to which the worker is entitled in respect of the injury is the compensation payable in respect of the degree of impairment so agreed.
(3)     The Commission may award compensation additional to the compensation payable under subsection (2) by virtue of a complying agreement if it is established that—
(a) the agreed degree of permanent impairment is manifestly too low, or
(b) the worker has been induced to enter into the agreement as a result of fraud or misrepresentation, or
(c) since the agreement was entered into, there has been an increase in the degree of permanent impairment beyond that so agreed.
(4)     Complying agreements, and the payments made under them, are to be recorded in accordance with the Workers Compensation Guidelines.
...”
Section 322 of the 1998 Act relevantly states:
“322 Assessment of impairment
(1)     The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2)     Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3)     Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
Note—
Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.
(4)     A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured worker until the medical assessor is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.”
Section 322A of the 1998 Act states:
“322A One assessment only of degree of permanent impairment
(1)     Only one assessment may be made of the degree of permanent impairment of an injured worker.
(1A) A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.
(2)     The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).
(3)     Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of—
(a) assessment and a medical assessment certificate under this Part, or
(b) a determination by the Commission under Part 4.
(4)     This section does not affect the operation of section 327 (Appeal against medical assessment) or 352 (Appeal against decision of Commission constituted by non-presidential member).”

FINDINGS AND REASONS

Nature and conditions of the applicant’s employment

The applicant’s credit is not in dispute. There is no evidence which is inconsistent with the applicant’s evidence in relation to the nature and conditions of his employment following the 2012 injury.
On that basis, I accept the applicant’s evidence in relation to the nature and conditions of his employment following the 2012 injury. In particular, I accept that following the applicant undergoing a L4/5 microdiscectomy in 2013, the applicant was initially given office and paperwork type duties which included labelling boxes and pallets and sometimes restocking pallets. The work was mostly non-intrusive, although it did involve some reaching, bending over and lifting.
Further, I accept that in 2017, the applicant was placed on the hauling machine two days each week, each for nine continuous hours with only two breaks of twelve minutes and 30 minutes respectively. In that role, the applicant was required to stand on a concrete floor for the nine-hour shift. The applicant was also required to regularly lift and change plastic rolls which weighed approximately 30kg each.
The applicant’s evidence is that after working on the hauling machine in 2017, he began to experience pain in his right hip and he formally reported the injury to the respondent after the pain became so severe that he could barely walk.
The Incident Report dated 11 October 2017 recorded that, on 10 October 2017, the applicant reported that he felt some pain in his right hip, which had been developing over approximately the previous five weeks.
The Employer Injury Claim Form dated 15 June 2018, recorded that a workers compensation claim was made in respect of right acetabular labrum tear, right hip trochanteric bursitis and right calcific tendonitis, with a date of reported injury of 10 October 2017.

Medical history

The applicant’s medical history is not in dispute. Having regard to the evidence, I am satisfied that:
(a)    the respondent accepted liability in relation to the 2012 injury and does not dispute that the applicant sustained a right hip injury and a lumbar spine injury per se;
(b)    in 2012 an MRI of the lumbo-sacral spine showed multi-level diffuse disc bulges and osteophytes with canal stenosis, particularly from L2/3 to L4/5. The canal stenosis were moderate in nature, particularly at L3/4 and L4/5;
(c)    on or about 8 February 2013 (I note that some evidence refers to the date of 8 April 2013), the applicant underwent left L4/5 microdiscectomy performed by A/Prof Sheridan;
(d)    in April 2013, an MRI of the lumbar spine showed residual left posterior paramedian disc protrusion and nerve root impingement a L4/5;
(e)    A/Prof Sheridan reported that the applicant had a good result from the surgery with almost complete resolution of his back and leg pain, however he experienced some resurgence of pain during 2013;
(f)    during 2013, Dr Guirgis recorded that the applicant’s symptoms were “better” with recovery following the left L4/5 miscrodiscectomy, however the applicant did experience some back lower back pain, associated with stiffness and numbness, which extended to involve the lower limb;
(g)    on 11 December 2013, Dr Guirgis recorded that the applicant was “better” and that the applicant asked for return to work on a full-time basis;
(h)    on 6 January 2014, Dr Guirgis recorded that the applicant asked to go back on normal hours;
(i)    on 11 September 2014, Dr Guirgis recorded that the applicant experienced lower back pain, associated with stiffness and numbness, which extended to involve the lower limb;
(j)    on 9 January 2017, Dr Guirguis recorded that the applicant reported lower back pain, associated with stiffness and numbness, extended to involve the lower limb, which occurred in episodes which were increased towards the end of the day and by sitting or standing for long periods and by lifting weights;
(k)    in January 2017, an X-ray of the lumbar spine showed mild anterior narrowing of the L2/3, L4/5 and L5/S1 discs;
(l)    on 11 October 2017, Dr Guirguis recorded that the applicant reported lower back pain, associated with stiffness and numbness, extended to involve the lower limb, which occurred in episodes which were increased towards the end of the day and by sitting or standing for long periods and by lifting weights;
(m)     on 9 November 2017, Dr Guirguis recorded a potential diagnosis of right sacroiliitis;
(n)    on 13 November 2017 and on 14 February 2018, Dr Guirguis recorded that the applicant reported hips pain and limping, which increased in severity towards the end of the day and sometimes at night, and was increased by prolonged sitting, standing, walking and using stairs;
(o)    in November 2017, an X-ray of the pelvis showed mild degenerative change in both hips with features of femoroacetabular impingement;
(p)    in November 2017, an MRI of the right hip showed complex chronic degeneration and tearing of the entire acetabular labrum, acetabular rim lesion and evolving osteoarthritis of the hip joint and calcific tendonitis of the anterior insertional fibres of gluteus medius with associated trochanteric bursitis;
(q)    on 12 June 2018, Dr Calvache-Rubio recorded right hip pain and injury with a history that the applicant had been limping for the last six years after back injury, doing modified duties but still pulling and pushing, and the applicant experienced ongoing pain which was worse after work;
(r)    on 12 June 2018, physiotherapist Ryan Heuston, recorded that the applicant had right hip pain and that the mode of injury was overcompensation by standing on right leg due to previous left leg sciatica. Mr Heuston recorded that the applicant worked permanently modified duties due to a 2012 back problem, worked as receiving leading hand and performing office work. Mr Heuston recorded that the applicant was still working 36 hours per week, lifting 5kg, performing light pushing trolley and scanning and using a PT machine which involved standing on the machine;
(s)    on 14 June 2018, Dr Calvache-Rubio recorded that the applicant experienced right hip pain and numbness. Dr Calvache-Rubio diagnosed a right hip injury, being right acetabular labrum tear, right hip trochanteric bursitis, right calcific tendonitis and chronic pain with psychological barriers, with a date of injury of 10 October 2017;
(t)    on 21 June 2018, physiotherapist Lan Phuong Van reported that the applicant had ongoing right hip paid and was working permanent modified duties, 36 hours per week, and noticed hip pain by the end of the day;
(u)    on 21 June 2018, Dr Lim recorded that the applicant reported ongoing hip pain;
(v)    on 29 June 2018, Dr Calvache-Rubio recorded a history that the applicant “Last year noticed right hip pain” but did not report back pain. Dr Calvache-Rubio diagnosed trochanteric bursitis secondary to underlying calcific tendonitis to his right gluteus medius;
(w)   on 16 July 2018, Dr Calvache-Rubio recorded that the applicant had ongoing hip pain and required cortisone injection;
(x)    in July 2018, a Right Hip Injection Report reported injection of submaximus bursa;
(y)    on 13 November 2018, Dr Soo recorded that the applicant’s pain had been “now going 1 year to his hip”;
(z)    in November 2018, a Right Hip Injection Report reported injection of significantly thickened trochanteric bursa;
(aa)    in January 2019, an MRI Pelvis and Right Hip reported similar findings to the 2017 MRI;
(bb)    in 2019, Dr Soo stated that the applicant continued to be troubled by gluteal tendinopathy and trochanteric bursitis of his right hip;
(cc)     in November 2019, the applicant’s treating orthopaedic and spine surgeon, Dr Singh reported that “more recently” the applicant had been having right sided-hip pain and that, “in the last six weeks”, the applicant’s back pain had significantly flared up and he had significant neurogenic claudication and pins and needles down both legs;
(dd)    in 2019 and 2020, Dr Singh, stated that the applicant had severe lumbar canal stenosis at L3/4, secondary to disc bulging, and moderate canal stenosis at L4/5, with a residual disc bulge on the left side. Dr Singh recommended that the applicant undergo L3 to L5 decompression surgery;
(ee)    in 2020, Dr Khong recorded a history which included that the applicant had sustained an injury in October 2017 after he was put on hauling duties which required him to stand for nine hours and complained of right him pain, and more recently, bilateral lower back pain, and
(ff)    in or about August 2020 (the applicant states that it occurred in August 2018), the applicant underwent decompression and rhizolysis at L3/4/5, performed by Dr Singh.

The medical evidence in relation to causation

The applicant’s independent medical expert, A/Prof Hope, diagnosed Lumbar L3/4/5 decompression and right hip gluteal tendonitis. A/Prof Hope expressed the opinion that the applicant had fully recovered from the 2012 injury following surgery. A/Prof Hope stated that the applicant sustained a new injury to his lumbar spine and right hip, with a date of injury of 10 October 2017. A/Prof Hope’s opinion is that the mechanism of that injury was the applicant’s work duties, in particular his work on the hauling machine.
The respondent’s independent medical expert, Dr Lee, expressed the opinion that the applicant suffered continuation and deterioration of the 2012 injury to his lumbar spine, rather than a “new” injury in 2017. Dr Lee expressed the opinion that the applicant’s right hip problem is mostly referred pain from his lumbar spine and possibly also trochanteric bursitis. Notably, in December 2012 Dr Lee had foreshadowed that successful “Successful L4-5 microdiscectomy would resolve the leg pain. It may not resolve the back pain...”.
Turning to the treating medical evidence, I note that in December 2013 and January 2014, Dr Guirgis recorded that the applicant was “better” and asked to return to work on a full-time basis. In September 2014, Dr Guirgis recorded that the applicant experienced lower back pain which extended to involve the lower limb, which occurred in episodes, which were increased during the day by sitting or standing for long periods.
Significantly however, I note that there is no record of relevant reported symptoms in the period between September 2014 and 2017. I note that this is consistent with the applicant having fully recovered from the 2012 injury following surgery.
However, in January 2017 and October 2017, Dr Guirgis also recorded that the applicant reported lower back pain which extended to involve the lower limb, which occurred in episodes, which were increased during the day by sitting or standing for long periods. In November 2017, Dr Guirgis recorded that the applicant reported hip pain and limping, which was increased by prolonged sitting, standing and walking, with a potential diagnosis of right sacroiliitis.
In 2018, the applicant’s treating physiotherapists recorded that the applicant experienced right hip pain in the context of his manual work, which involved lifting, pushing and standing.
In 2018, the applicant’s nominated treating doctor, Dr Calvache-Rubio diagnosed a right hip injury, being right acetabular labrum tear, right hip trochanteric bursitis, right calcific tendonitis and chronic pain, with a date of injury of 10 October 2017. Dr Calvache-Rubio expressed the opinion that the applicant’s work as a storeman, including repetitive lifting, bending, pushing and pulling, was the mechanism of injury. In 2018, Dr Calvache-Rubio noted that the applicant experienced ongoing pain which was worse after work.
In 2019 and 2020, the applicant’s treating orthopaedic and spine surgeon, Dr Singh, stated that the applicant had severe lumbar canal stenosis at L3/4, secondary to disc bulging, and moderate canal stenosis at L4/5, with a residual disc bulge on the left side.
In 2020, Dr Khong, neurosurgeon recorded that the applicant had an injury in October 2017 to his right hip following being put on hauling duties which required him to stand for nine hours and that he more recently started getting bilateral lower back pain which radiated to the lower extremity, particularly the left buttock.
I note that there is no evidence of any other significant causal factor.
I accept that there are some difficulties with the medical evidence. I accept that the L3/4/5 area is the same area that was the subject of the 2012 injury and the 2013 surgery. However I note that, following that surgery, the applicant’s spinal canal stenosis subsequently progressed from moderate to “severe”. I also accept that the applicant’s symptoms in 2012 and 2017 are similar. However, Dr Lee anticipated that, at the least, the applicant’s leg symptoms would be resolved by the surgery.
Applying the common sense test to evaluate the causal chain, in the context of the evidence as a whole, it seems to me to be a logical and most likely chain of events that the applicant did recover from the 2012 injury and that the applicant sustained a new injury to his lumbar spine and right hip in 2017 as a result of the nature and conditions of his work during 2017.
Having regard to the evidence as a whole, and for the reasons that I have set out above, I prefer and accept the opinion of the applicant’s independent medical expert A/Prof Hope. I consider that such opinion as to the diagnosis and mechanism of injury is most consistent with the applicant’s medical history and treating medical evidence and the applicant’s evidence.
On that basis, I find that the applicant sustained an injury to his lumbar spine and right hip in the course of his employment as a result of the nature and conditions of his work, pursuant to s 4(b)(i) of the 1987 Act, with a date of injury of 10 October 2017. Further, I find that the applicant’s employment was the main contributing factor to that injury.

Referral to a Medical Assessor

Having made these findings, it is appropriate for me to remit the matter to the President to be referred to a Medical Assessor for an assessment of WPI in respect of injury to the lumbar spine and right hip, with a date of injury of 10 October 2017.
All of the materials admitted in the proceedings will be included in the referral.

SUMMARY

Accordingly, I make the following finding:
(a) the applicant sustained an injury to his lumbar spine and right hip, with a date of injury of 10 October 2017, in the course of his employment, to which the applicant’s employment was the main contributing factor, pursuant to s 4(b)(i) of the 1987 Act.
Accordingly, I order as follows:
(a)    the matter is remitted to the President to be referred to a Medical Assessor for an assessment as follows:
Date of injury:        10 October 2017
Body parts:             lumbar spine
right lower extremity (hip)
Method:                  whole person impairment.
(b)    The materials to be referred to the Medical Assessor are to include:
(i)ARD and attachments, and
(ii)Reply and attachments.

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Citations

Sada v Woolworths Group Ltd [2024] NSWPIC 369

Cases Citing This Decision

0

Cases Cited

3

Statutory Material Cited

0

Lagana v Australian Retirement Partners Realty Pty Ltd [2015] NSWWCCPD 55

Walters v Good Guys Discount Warehouse (Australia) Pty Ltd [2023] NSWPICPD 29

March v E & MH Stramare Pty Ltd [1991] HCA 12

[2024] NSWPIC 369

9 July 2024