Scott v Burwood Council

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Scott v Burwood Council [2023] NSWPIC 72
APPLICANT:	Craig Scott
RESPONDENT:	Burwood Council
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	24 February 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits and costs of proposed surgery; applicant poor historian; respondent conceded that incident occurred, but did not concede the date of injury or causation; consideration of Mason v Demasi, Finney Pty Limited t/as Cut Price Car Rentals v Chequer, Hancock v East Coast Timber Products Pty Limited, New South Wales Police Force v Winter and Kooragang Cement Pty Ltd v Bates; Held – award for the applicant of weekly benefits and costs of surgery; submissions directed on pre accident average weekly earnings (PIAWE) and section 38.
determinations made:	1. There is an award for the applicant of weekly compensation from 4 March 2020, pursuant to ss 36 and 37 of the Workers Compensation Act 1987. 2. The respondent is to pay, pursuant to s 60(5) of the Workers Compensation Act 1987, the costs of spinal decompression surgery, as recommended by Dr Timothy Siu. 3. If the parties are unable to agree on the applicant’s pre-injury average weekly earnings and the application of s 38 of the Workers Compensation Act 1987, the following timetable will apply: (a) on or before 6 March 2023, the applicant is to file and serve written submissions on the issues of his pre-injury average weekly earnings, including the application of Schedule 3, cl 4 of the Workers Compensation Act 1987 and cl 8F of the Workers Compensation Regulation 2016 to his earnings at Santa Sabina College; and s 38 of the Workers Compensation Act 1987; (b) on or before 20 March 2023, the respondent is to file and serve written submissions on the issues of the applicant’s pre-injury average weekly earnings, including the application of Schedule 3, cl 4 of the Workers Compensation Act 1987 and cl 8F of the Workers Compensation Regulation 2016 to his earnings at Santa Sabina College; and s 38 of the Workers Compensation Act 1987, and (c) on or before 27 March 2023, the applicant is to file and serve any submissions in reply on which he seeks to rely

STATEMENT OF REASONS

BACKGROUND

The applicant, Craig Scott (Mr Scott) was employed by the respondent, Burwood Council (the Council), as a swimming instructor.
Mr Scott claims that on 28 February 2020 at Enfield Aquatic Centre (EAC), he tripped over a platform under the water, whilst walking backwards instructing a student, injuring his lumbar spine.
The applicant completed an Employee Claim Form (the claim form) on 14 April 2020. He stated that on 28 March 2020, he was teaching a class in the water, walking backwards, when he fell over a platform “blue step”, that had been left in the water. It was underwater and he didn’t know it was there.
There is some controversy about the date on which this incident occurred, but the respondent concedes that it was probably some time in 2020, and the applicant was mistaken in stating that it was on 28 March 2020. Mr Scott nominated Mr Nathan Labrakis as having been present when the incident/injury happened.
The injury was described as L5/S1 disc prolapse with pain in right leg and foot.
The Council completed a Council Claim Form on 15 April 2020. It advised that the notification date (of the injury) was 27 March 2020. Notice was given to Ms Josie Galasso. The date of the injury was recorded as 28 February 2020, which was also the date on which the applicant ceased work.
The cause of the injury was described as “walking backwards, fell over a blue step platform in the water”. The nature of the injury was “L5/S1 disc prolapse with pain in (R) leg and foot”.
On 25 June 2020, StateCover Mutual Limited (StateCover), the Council’s insurer, issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The notice referred to the date of injury as 28 March 2020 “as stated on your claim form” or 28 February 2020 the “last day your [sic] worked at Council”.
StateCover disputed that the applicant had sustained injury, including a “disease injury” to his lumbar spine, and that employment was a substantial contributing factor to any injury. it therefore disputed that Mr Scott was entitled to payment of either weekly compensation or medical expenses.
Mr Scott requested a review of the decision, in an unsigned and undated application. He asked that the decision be reviewed because “the date was 28 Feb the incident and my doctor wrote the wrong date. But [sic: by] the time my employer lodged everything it was a month later that it was claimed so my doctor wrote the wrong date.” He added that “the StateCover letter said the right date”.
By letter dated 10 August 2020, the applicant’s solicitors requested that StateCover review its decision. They advised that Mr Scott had instructed them that the injury occurred on
28 February 2020, and he not returned to work since that date. The error had been rectified in his treating general practitioner’s (GP) latest certificates of capacity (COCs).
On 24 August 2020, StateCover issued the applicant with notice of its review decision. It maintained its decision to dispute liability.
By letter dated 26 November 2020, the applicant’s solicitors again requested that StateCover review its decision.
On 11 December 2020, StateCover issued the applicant with a further notice, maintaining its decision to dispute liability.
The applicant lodged an Application to Resolve a Dispute (the Application) on 28 June 2022. He claimed that on 28 February 2020, he sustained aggravation, acceleration and exacerbation of his pre-existing lumbar spine condition during the course of his employment. He had his student holding onto a kickboard and moving forward as he moved backwards. Whilst walking backwards, he tripped over a platform under the water. His underlying back condition was significantly aggravated. As a result, he sustained a lumbar spine injury and required spinal decompression.
The applicant claimed weekly benefits from 28 February 2020 to date and continuing. He also claimed the sum of $10,701 pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the estimated cost of spinal decompression surgery.
The respondent lodged its Reply on 21 July 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    causation – the respondent concedes that at some point in the course of the applicant’s employment, there was an incident in the pool, and is “probably capable of accepting that it was in 2020”, but does not agree on or concede the precise date in 2020; disputes that this caused the issues in the applicant’s lumbar spine; and maintains that no liability arises;
(b)    whether the proposed surgery is reasonably necessary medical treatment, and
(c)    the applicant’s pre-injury average weekly earnings (PIAWE).

PROCEDURE BEFORE THE COMMISSION

The matter was listed for preliminary conference on 28 July 2022. Mr Power appeared for the applicant, and Mr Murphy appeared for the respondent. The applicant was unwell, sent his apologies, and was excused from the conference.
The parties advised that they were not able to resolve the matter. The respondent foreshadowed that it may seek leave to cross-examine the applicant.
The matter was listed for conciliation/arbitration hearing on 23 September 2022. The date was vacated, as the applicant unfortunately experienced a death in his family.
The matter was next listed for conciliation/arbitration hearing on 4 November 2022.
Mr McEnaney of counsel, instructed by Ms Dahdal, appeared for the applicant, who was present, with his sister, Ms Dionetta Scott. Ms Goodman of counsel, instructed by
Mr Murphy, appeared for the respondent. Mr Payne of StateCover also attended.
The applicant sought to rely on evidence that had been served in support of previous proceedings, which had been discontinued, but not in these proceedings. The respondent was not in possession of the documents and objected to their admission. The applicant therefore sought an adjournment to allow him to again serve the documents on the respondent.
The matter was adjourned, and directions were made for the filing and service of the documents, and for the respondent to advise the applicant should it object to their admission.
The matter was listed for further preliminary conference on 28 November 2022. Ms Dahdal appeared for the applicant and Ms Markley appeared for the respondent. Directions were made regarding the admission and filing of further evidence. The respondent again foreshadowed that it may seek leave at the conciliation/arbitration hearing to cross-examine the applicant.
The matter was again listed for conciliation/arbitration hearing on 3 February 2023.
Mr McEnaney of counsel appeared for the applicant, instructed by Ms Dahdal. Mr Coombs of counsel appeared for the respondent, instructed by Mr Murphy. The applicant and Ms Scott were present. Mr Payne of StateCover was present.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a)    the Application and attachments;
(b)    Reply and attachments;
(c)    applicant’s wage schedule, dated 18 August 2022;
(d)    Application to Admit Late Documents dated 19 September 2022 and attachments filed by the respondent;
(e)    Application to Admit Late Documents dated 14 November 2022 and attachments, filed by the applicant, and
(f)    signed statement of Ms Ellyn Sheehy, which the respondent sought to substitute for her unsigned statement, attached to its Reply, and which it was directed to file and serve on or before 10 February 2023.

Oral evidence

There was no application by either party to cross-examine any witness or call oral evidence.

FINDINGS AND REASONS

Evidence of the applicant, Craig Scott

The applicant’s first statement is dated 17 July 2020. It was provided to an investigator retained by StateCover.
He had not had any back injuries before. He had not consulted a doctor or received any treatment for any part of his back before February 2020. There had been no tasks at work that were difficult for him to carry out.
He injured his lower back on 28 February 2020. He had not injured it on 21 February 2020 or any day of the week leading up to 28 February 2020.
He finished work at 6pm on 27 February 2020. His back was feeling perfectly fine, and he had no problems moving it.
On 28 February 2020, he was at home until he drove to work, where he commenced his shift at 3:15pm. Other staff working near him included Nathan Labrakis. “Sarah” was on the wet deck. She is normally in the office, so she is not normally poolside.
The incident occurred between 4:00pm and 5:30pm, in the second or third class he was teaching. He was in the 25m pool, which is 1m in depth. He thinks he was in lane seven, teaching a pre-school class. Nathan was in the next lane. He was coaching about five children.
He was at the end of the pool, near the storeroom. He was in the water, wearing his work uniform of shirt and board shorts. He had a child holding onto a kickboard, moving forwards, whilst he held the other end, walking backwards.
His feet kicked the step of a platform under the water on the ground. Normally the step is at about halfway. He did not see it. It is slightly moveable and made of hard plastic. It is blue, and the pool tiles are light blue.
The step has two black weights in it. He had never tripped on it before. He is normally in a different lane, lane five in the middle, where there is no step. The platform is like an aerobics step for the shorter children who can’t reach the bottom of the pool.
He fell backwards over the step. He went under the water. Nathan tried to grab him, leaning over the rope, but missed. His lower back hit the bottom of the pool. He was on the ground for a couple of seconds, then fell forward. He said “I have done my back” when he stood up.
He got up slowly. The girl on the other side of the kick board was OK. He slowly walked back to the edge of the pool. Nathan followed him back to the shallow end. There was no one to report it to, so he continued coaching. He felt pins and needles from his back going to his toes when he finished teaching.
He reported the injury to Dan Pocaterra at 7pm after the shift. Dan said to go home and get a roller, which means rolling the muscle out. Dan did not record the injury. There were two others present when he reported the incident, a female receptionist, and a male lifeguard. He does not know their names.
He rang his father and told him what had happened. He drove straight home, arriving about 15 minutes later. He had dinner, applied ice to the middle of his lower back across both sides, took some Panadol, and went to bed.
On 29 February 2020, he tried to arrange an appointment with his GP at DMC Medical Centre but could not get in for about a week.
He worked on 2 March 2020. He asked “Jess” (Ms Jessica Gilmour) if Dan had reported the incident, and she said “no”. He explained how he had fallen over the platform and injured his back. She did not record anything. “Luke” was in the office when he told her. (Other evidence suggests this may have been Mr Luke O’Connor).
He could hardly walk. He had pains going down his leg. He had to sit down more than two times. He was struggling.
On 3 March 2020, he went to Burwood Back Pain Chiropractor. They did full X-rays of his back. “Nick” (Mr Konstantinou) the chiropractor, told him to keep applying ice, and try to keep moving as much as he could. He issued a medical certificate declaring Mr Scott unfit for work for some days off until he could get into his GP.
He was struggling to get out of bed on the days of the week following the incident.
He eventually attended his GP on 9 March 2020, which was the only day he could see him. His father drove him as he could not walk properly. He attended his family doctor, Dr Quentin Cameron, whom he has been seeing his whole life. Dr Cameron sent him for a CT scan. It showed he had a bulging disc.
Dr Cameron referred him to Dr Timothy Siu, whom he saw straight after the CT scan. Dr Siu sent him for a cortisone injection and said they would reassess in two weeks.
The injection did not help. He went back to his GP after two weeks and was referred for an MRI. He did not fit in the machine, and booked one at Blacktown, where you stand in the machine. Due to COVID-19, it was delayed, as it was considered non-essential.
He went to Concord Hospital (Concord Repatriation General Hospital) on about
11 March 2020, as he thought he had blood clots. They admitted him for 24 hours and did some tests, which did not reveal any clots. They prescribed painkillers.
His sister rang Jess and Ryan (Mr Ryan Blouin) and told them he could lodge a workers’ compensation claim. He had also gone in March 2020 to hand in a certificate.
He is not allowed physiotherapy or any other treatment. He can lie down but after a while he gets stiff. He has trouble walking or driving. He struggles to walk to the letter box. He is taking various painkillers, including Endone, which was prescribed by Concord Hospital.
Dr Cameron said he had to wait for the MRI and then see a surgeon for an operation. The specialist at the independent medical examination said surgery was the only option.
He was scheduled for an MRI on 12 August 2020 and was on a waiting list. “Someone in the insurance company” brought it forward without telling him.
He has not worked since 2 March 2020. He is staying with his sister, who is caring for both him and his father.
The applicant’s next statement is dated 15 December 2020. He has commented on the statements of the respondents’ witnesses.
As regards Ms Gilmour’s evidence, the accident happened on 28 February 2020. He spoke to her on 2 March 2020 and told her he hurt his back on Friday. He worked that day, taking a class, which he struggled to complete, at 4pm.
The only person he has followed up is “Josie” in HR. He reported it to her as his colleagues were not interested. He did report the incident to Dan, who is the senior person in charge of reception. He confirmed his previous evidence about his interaction with Dan. It was coming towards 7pm and Dan wanted to go home, as he was off the clock. This is why no incident report was filled out.
Neither Josie nor Ryan was aware of the incident. Josie started the compensation forms and the claim.
Dionetta did call work to inform them he was unable to work. When she spoke to Jessica and the reception staff, she informed them that it looked like there would be a compensation case. They also told Josie this.
Dr Siu had proposed spinal fusion, and he wished to undergo it.
The applicant’s next statement is dated 13 December 2021.
He refers to the clinical records of Concord Hospital. He does not recall visits to the hospital on 21 September 2016 and 22 January 2018.
He did not require ongoing treatment or time off work during that time. He was able to continue working without restriction. He may have undergone physiotherapy and taken some pain medication but did not have any serious back problems.
He attended Concord Hospital on 4 March 2020 due to back pain. This was a few days after the accident at work. His back pain had continued since his fall, and he attended the hospital as his GP was not taking bookings at the time.
He had attended a chiropractor who took some scans and recommended he attend the hospital. He was examined, given pain medications, advised to seek physiotherapy, and discharged the same day.
Referring to DMC’s clinical records, he was involved in a minor motor vehicle accident in April 2014. He sustained a minor whiplash injury. He attended the GP and was given pain medications. The pain settled after a few days. He did not sustain any back injury and was able to go to work. He did not require time off work and did not lodge a CTP claim.
He does not recall visits to the GP on 26 May 2015, 2 January 2019, 3 January 2019, and
29 May 2019, when he complained about back pain.
Prior to the accident, he had some back pain due to being overweight, but it was nothing serious. He was able to work, and the pain was intermittent and would settle after a couple of days. He did not require ongoing treatment. He would take Panadol and might have attended a physiotherapist once or twice if the pain continued for more than a day or two.
The pain was not ongoing, and did not prevent him from working, driving a car, lifting things and so on. He did not have any ongoing restrictions.
After the accident, his back pain became significantly worse. It became like a heavy aching and would shoot down his legs. He began to experience pins and needles in his legs and feet, and sometimes lost sensation in his feet.
He began to rely on heavier pain medication, as Panadol was not enough. He was unable to continue working, due to the severe pain and restrictions. He struggles to drive long distances, sit or stand for long periods, or sleep or lie down. He cannot pick up anything heavy or bend down without sharp pain.
The pain he experiences as a result of the accident is much more severe. It is ongoing and debilitating. Since the accident, he has required ongoing physiotherapy and treatment, which he did not require before.

The pain has not subsided. It has been almost two years. The treatment he has undergone has not helped. He cannot exercise and is no longer as active. Prior to his accident he used to play sports on the weekend, and now can no longer do that.
He did not mention his previous back pain to the medical assessors because he did not think it was relevant or serious. He did not have any prior back injury and thought the questions were directed at injuries, rather than general back pain. His prior back pain was intermittent, did not require ongoing treatment, and did not prevent him working. The pain he experienced after the accident was much more severe and restricting, and he did not think mentioning prior sporadic incidents of minor back pain was important.
Referring to Daniel Pocaterra’s statement, he may have “whinged” about back pain when he had a flare-up, but does not recall telling anyone at work he had “back problems”. He did injure his knee while working at Lane Cove Aquatic Centre but has never previously injured his back at work.
Regarding Jessica Gilmour’s statement, the accident occurred on 28 February 2020, not
21 February 2020. She was not present. Only he and Dan were there at the time of his injury. They had a conversation after the 28^th when he informed her about the accident and wanted to follow up where it had been reported.
Regarding Sarah Shore’s statement, he does not recall complaining to her “frequently” about back pain or discussing any of his treatment with her. She was not there at the time of his accident, and he did not discuss it with her.
Regarding Ellyn Sheehy’s evidence, he does not recall any discussions with her relating to his back pain or need for surgery. He did not discuss his treatment needs with her. She was not there at the time of his accident, and he did not discuss it with her.
The applicant’s final statement is dated 8 June 2022.
It had come to his attention that the insurer believed he had engaged in employment approximately one month after his injury, working two days for Santa Sabina College (Santa Sabina), and had not disclosed it.
He did not work at this time, and believes the entries made by Santa Sabina and the payslips provided are in error.
He sustained the injury on 28 February 2020. He had Saturday and Sunday off. He returned to work, with pain and discomfort, on 2 March 2020 at Enfield Swimming Centre.
He attempted to work the next day (3 March 2020) at Santa Sabina, but the pain became unbearable. He found it extremely difficult to walk. He had to call his father to pick him up and take him to the chiropractor. He has not engaged in any work since 2 March 2020.
He provides an explanation for the payslips from Santa Sabina. That is supported by the evidence of Ms Sonia Bruzzese, who lodged his timesheets.
The respondent accepts that the applicant’s last day of work was 3 March 2020.

Evidence of Sonia Bruzzese

Ms Bruzzese’s statement is dated 22 June 2022.
At the time of the applicant’s injury, she was the head coach at Santa Sabina. She confirms that it is not the case that the applicant worked for two days approximately one month after his injury.
In the week he sustained his injury, the applicant worked on 24 February, 25 February, and 28 February (2020). He reluctantly returned to work on 2 March 2020. However, she was aware he was in immense pain throughout his shift. During his lunch break, he had no choice but to attend the chiropractor near the pool.
She is aware that the applicant attended on 3 March 2020, but he did not work completely, as the pain in his back was unbearable, so he called a family member to pick him up.
A few weeks after the applicant’s injury, it came to her attention that both she and he were not paid for the days before his injury. She emailed the accounts department at Santa Sabina on 24 March 2020. She received a response that day from Mr Ryan Dunlop, confirming he would have the issue sorted the next day by the director of sport, Mr George Ayoub.
On 26 March 2020, Mr Ayoub advised her that there had been a mix-up with the accounts department, and she and the applicant would be paid in the next pay run.
As a result, the applicant’s payslip from Santa Sabina displays that he worked on
26 March 2020. This is merely the date that Mr Ayoub input their pay.
Ms Bruzzese has attached to her statement copies of emails that confirm her statement evidence. She has set out in her email to Mr Dunlop that the applicant worked 24 February, 25 February, 2 March and 3 March.

Evidence of Nathan Labrakis

Mr Labrakis made a Statement of Witness to an Injury on 21 April 2020.
On a day at work this year (2020), he saw the applicant, walking backwards in the lane next to him whilst they were instructing, trip over a blue water platform. He fell back and twisted towards his front. He made a facial expression that he had hurt himself.
Approximately 5 to 15 minutes after the incident, the applicant said words to the effect that he “did his back in because someone left the platform in the wrong place”.
Mr Labrakis made a further statement on 27 May 2020.
During an afternoon shift, possibly on a Friday, this year he was teaching learn to swim at EAC. The applicant was in the lane next to him. He was teaching learn to swim and walking backwards.
He saw that the applicant fell backwards and twisted towards his front, like he was trying to regain his footing. He made a facial expression like he had hurt himself. He cannot recall if the applicant said anything at the time. He might have asked if he was all right but cannot recall. He has tripped over the platforms himself when they have been left in the water.
He observed the applicant did not get out of the water straight after the incident, but he did stop walking up and down his lane.
He repeated his evidence about his conversation with the applicant 5 to 15 minutes later. He did not speak to anyone else about the incident that day, and no one approached him about it.
He assumed the applicant would have reported the incident. He did not report it. Ryan Blouin called him some days after the incident, and he advised him what he had observed. He did not see the applicant back at work after the incident.

Emails regarding the event

On 21 April 2020, Ms Galasso sent an email to Mr Pocaterra. She advised him that the applicant had submitted a claim, advising that he injured himself at EAC on
28 February 2020.
The applicant had advised StateCover that he told Mr Pocaterra on 28 February 2020 that he injured himself in the pool that day, prior to the finish of his shift.
Mr Pocaterra responded on the same day. He said the applicant approached him that afternoon, saying he had backed onto a platform. He “said it quite casually”.
Mr Pocaterra asked whether it was something he had to worry about or report. The applicant advised he’d just like him to pass on the message to the instructors to pack up the equipment.
He had advised Mr Blouin of the conversation the following morning and passed on the message. He hadn’t filled out an incident report, based off what the applicant had told him. However, “looking at it retrospectively I wish I had done so”.
Ms Galasso also emailed Ms Gilmour on 21 April 2020. The applicant had advised StateCover that he spoke to her on 1 March 2020, advising her of the injury.
Ms Gilmour responded the same day. She recalled that the applicant mentioned one afternoon that he had tripped on a LTS (I assume this may be an abbreviation of Learn to Swim) step a few days prior. She could not remember the date.
She asked if he was OK and whether he was able to work his shift. He said he was OK to continue and did not mention any concerns that she could recall, other than ensuring staff packed away the equipment.
She also asked if the applicant reported the incident on the date, and he said he spoke to
Mr Pocaterra, as he was the senior on the day. She mentioned they could follow up with
Mr Blouin, and he declined. She requested that he let her know if anything changed, and he did not follow up.
She mentioned it to Mr Blouin in passing. She also made him aware that Ms Scott contacted the centre whilst the applicant was off and had stated he was off due to an injury sustained at work, and she needed to follow up with Mr Blouin. She referred the matter but was unsure of the outcome.
That was all she could recall, as the matter was with Mr Blouin and the applicant was off work until the centre closure occurred.
“Just to confirm”, she had reoccurring conversations with the applicant where he mentioned a variety of ailments with his back and various other conditions. She could not recall specifics, but it was not uncommon.

Evidence of Daniel Pocaterra

Mr Pocaterra’s first statement is dated 25 May 2020. He is the customer service team leader.
He has referred to the applicant’s outlook, communication, and demeanour.
It had become known to him that the applicant had a history of pre-existing back problems, as he often complained about this to him and other staff.
He thinks it was 28 February 2020 when the applicant approached him at approximately 7pm at the end of his shift, and while he was serving at the front desk.
They were speaking about personal matters, such as what they planned for the weekend. The applicant mentioned he was unhappy with the placement of the swimming platforms and to pass this on to the instructors.
The applicant explained he had leant back and bumped the platform while speaking to someone poolside.
He asked if the applicant had hurt himself, or if there was anything to worry about, and he replied no to both questions. They continued to chat. The applicant had finished his shift and left. He had made a note about what the applicant said, to include in his daily catch up with Ryan Blouin the next week.
While the applicant had not reported an injury or near miss, he observed the placement of the platforms, and they were in their designated positions.
On the following Monday, he reported what the applicant had told him to Ryan Blouin. He asked if there was anything furthe he had to action or log, and Mr Blouin advised he would take it from there.
Mr Pocaterra made a further statement dated 23 March 2021. He refers to a statement dated 23 July 2020, which is not in evidence.
He does not recall the date, but the applicant told him about a back injury when he was fixing a gate, bending over, and pulling something. He indicated this had aggravated a longstanding back injury.
“As previously mentioned,” (it is assumed in the statement that is not in evidence) the applicant said he had injured himself working for another Council at a pool in Ashfield. He had lifted something out of the pool, causing him to injure his back.

Evidence of Jessica Gilmour

Ms Gilmour’s statement is dated 27 May 2020. She is the programs team leader at EAC.
She has referred to the applicant’s personality, demeanour, the fact that he was not a “team player”, his communication style and customer feedback, and insinuated that he was not trustworthy.
On 26 February 2020, she worked a pm shift and was in the control office when the applicant reported for his shift. There is a “small possibility” this conversation occurred on
25 February 2020.

The applicant mentioned that he had tripped on an LTS step that was left out on
21 February 2020. She was on a rostered day off (RDO) “the date the event occurred”.
She asked if he was OK, and he reported he was fine. She asked if he would be OK to complete his shift, or if he wished to follow up and speak to Ryan Blouin, and he declined.
She asked if he had reported it, and he said he had spoken to Dan Pocaterra at the end of his shift. He mentioned he just wanted to make her aware and provide feedback about the step. She took note and mentioned this to the deck staff in the following days. She asked that the applicant keep her informed if anything changed and he needed to follow up.
The applicant worked on 24 February, 25 February, 26 February, 27 February and
28 February “as per the roster”.
On 27 February 2020, she spoke to Dan Pocaterra. She believes the conversation occurred on this date, as Ryan was not yet on shift and she “touched base” the morning after her conversation with the applicant, first with Dan during their morning catch-up (if the conversation with the applicant occurred on 25 February, this would have been 26 February, as it was definitely the day following that conversation).
Dan made her aware that the applicant told him about tripping on the LTS step at the end of his shift, there was no injury or first aid required, and the applicant had declined to document the occurrence. He just wanted to make Dan aware that LTS equipment had been left out.
Dan reported he had discussed the matter with Ryan Blouin, who was aware of the details. She mentioned it to Ryan, who verified that Dan had spoken to him.
On 2 March she received a message from Ms Scott stating that the applicant had had an accident and she needed to take him for X-rays. She forwarded the email to Ryan Blouin and began making arrangements for the shift. She left a message for Ms Scott.
On 3 March Ms Scott contacted her and made her aware the applicant would be unable to work and was seeing a doctor. She asked Ms Scott to pass on her best wishes to the applicant and keep her updated.
On 3 March, Dan Pocaterra circulated an email advising that the applicant would be away until 6 March and “Dee” (Ms Scott) had contacted the staff line and would send a doctor’s certificate.
On 6 March, Dan Pocaterra sent an email advising that the applicant’s father had contacted him to inform him that Mr Scott needed to have an operation and would be seeing a specialist on 9 March.
On 9 March, Ms Scott sent an email to Ryan Blouin with a certificate. The email read:
“…please find attached Craig scott certificated [sic] off due to hurting himself. Any problems please call me.”

On 9 March she spoke to Dee, who mentioned that the applicant had seen a doctor and would be off for an unknown period, as he had to have surgery on his back, due to an injury at work.
She asked whether the applicant already had an injury to his back. As far as she can recall, Dee stated he had a pre-existing injury that required surgery for his upper back, although the current concern was his lower back, which he injured at work. She cannot recall the order in which Ms Scott said “upper” and “lower”. However, she had indicated two separate back issues. She recalls mention during her time at EAC that the applicant had a pre-existing back condition. She cannot recall the specifics.
On 10 March she made Ryan aware of Ms Scott’s call and her mention that the applicant needed surgery due to an injury at work. He said there was no incident at work, and she said Ms Scott had mentioned the event of 21 February when the applicant tripped. Ryan replied that the applicant had a pre-existing back injury, and it didn’t have anything to do with work.
On 24 March she was copied into an email from Ryan to “Simon”. The applicant’s father had called seeking Centrelink forms, due to EAC closing. The email said:
“As per certificates attached Craig hurt himself outside of work and due to his injury we had to cancelled [sic] his shifts until further notice…Notice to staff regarding the closure indicated, while the centre was closed…redeployment of shifts was mandatory. Craig has not contacted us to seek reinstatement or redeployment…”
She referred to an email from Ms Galasso on 21 April 2020, that stated the applicant had advised StateCover that he spoke to her on 1 March 2020, advising her of the injury.
The applicant did not speak to her on 1 March 2020, as she was not working or on call. He did not advise her of an injury at any time. He could not have injured himself on 28 February. Taking into account rosters, she was on an RDO on 28 February.
The applicant did not work from 29 February 2020, which does not allow any period for their discussion in the control office to occur. From the commencement of the applicant’s absence, she only had contact with his sister on the dates provided. The applicant worked consistently for a week after the event, with no report of injury.

Evidence of Sarah Shore

Ms Shore’s statement is dated 2 February 2021. She is a programs officer.
She has known the applicant since he started work. She usually saw him two to three times a week.
The applicant complained frequently about multiple issues, including pain or soreness in his back and knees. He would say things like “I woke up with a sore back”, or “my knees are sore today”. He did not speak about the cause of his pain or injuries. From the way he spoke about his back and knee conditions, she assumed they were older injuries.
The applicant talked about visiting physiotherapists, although he did not explain the reasons. She does not recall any names or locations. He used to “brag” about knowing physiotherapists who worked for NRL (National Rugby League) players. He knew where to have MRIs done at short notice. He could get her or other staff appointments with a physio.
She did not notice the applicant move with any obvious restriction. He is of large, solid build and appeared to move normally for his build.
She recalls the applicant saying he was going to have some surgery. She does not know the type of surgery, or when he mentioned it. It was towards the end of his time at Enfield.
She does not recall if she worked between 21 February 2020 and 28 February 2020. It is possible. She recalls that possibly in late February or early March 2020, the applicant mentioned that on a previous day, he leant on the step on the deck of the 25m pool. It moved slightly. He did not say he had injured himself or aggravated other injuries.

Evidence of Ellyn Sheehy

Ms Sheehy’s statement is dated 5 March 2021. She is a lifeguard.
She has known the applicant since he started work at EAC. During 2019 and early 2021, they often worked the same shift and taught in adjoining lanes.
The applicant would often say he had a bad back, and that he had a slipped disc. He either said he had had surgery or needed surgery. He said he was attending some practitioner but did not specify who or where.
The applicant was grumpy in general to be at work. He walked in a shuffling motion when he arrived. She could [sic: couldn’t] tell whether that was because of a physical restriction or whether he did not have the motivation to be there. She does not recall him mentioning what caused his physical condition.
She has not witnessed any incident or occasion when the applicant injured himself or aggravated his injury. She is aware that there was a period, possibly in late 2019, when he was off work because he hurt his back outside of work, which may have worsened over time. He resumed working.
She did not work on 21 February 2020. She worked on 28 February 2020. She does not recall the applicant mentioning about that time that he had injured himself, that he had stepped on a step in the pool, or complaining about the positioning of the steps.
At work, the applicant would walk up the side of the pool but was not performing any strenuous activity or exerting himself.
In late 2020, she noticed the applicant outside Ashfield Swimming Pool. She did not notice anything unusual about the way he was moving.

Medical evidence

DMC Medical Centre – general practitioners

Dr Cameron recorded on 2 May 2014 that the applicant was in a motor vehicle accident on 30 April 2014, “has injured back”. He was tender from T11 down centrally. Dr Cameron noted “To chase CT from Concord”.
On 2 January 2019, Dr Cameron recorded a history of 10 days lower back pain, radiating down both legs, the right more than the left. He noted “? L4”. CT of the lower back was requested.
The CT scan of the lumbar spine is dated 2 January 2019. The history recorded was “pain radiating down both legs right greater than left”. The impression was multilevel facet joint arthrosis and shallow disc bulges. There was quite marked desiccation at T11/12 and a large disc bulge at L5/S1.

On 3 January 2019, Dr Cameron recorded that the pain in the lumbar spine was getting better, “reassured”.
On 29 May 2019, Dr Cameron recorded a respiratory tract infection, and lower back pain with burning down the left leg “L5”.
On 6 March 2020, Dr Cameron recorded right sciatic pain. He requested CT and MRI of the lumbar spine (the latter with attention to L5/S1). He noted “5/7 sciatica R leg L5 S1 region. DVT ruled out. Has had Doppler ? pinched nerve or disc disease”. Dr Cameron recorded a phone call with the result of the CT scan – “disc bulge L5/S1. Needs MRI”.
The Doppler study, which is dated 5 March 2020, recorded the history as “? DVT”. It was a normal study with no evidence of DVT.
The CT scan is dated 6 March 2020. The history recorded was “5 day history of right sided sciatica in the L5 and S1 dermatomes”.
The conclusion was that there was a moderate broad based posterior disc bulge at L5/S1, which was eccentric to the right, “and there is now evidence of a right paracentral protrusion and extrusion component which appears unstable”. This warranted MRI to assess the stability of the disc prior to neurosurgical opinion.
On 9 March 2020, Dr Cameron referred the applicant to Dr Siu.
On 24 March 2020, Dr Cameron recorded that the applicant had had a cortisone injection to his lower back yesterday, “will see end of next week. 721 performed today. May need allied health in the future”.
On 27 March 2020, Dr Cameron recorded that the applicant fell over a step at work and hurt his leg and back “28^th March”. He saw the Burwood Back Clinic on “Tuesday 3^{rd “}. Concord Hospital “did Doppler and ruled out DVT and gave him some pain relief.”
The respondent conceded that, given the date of this consultation, Dr Cameron must have been in error in recording the date of injury as 28 March 2020.
On 3 April 2020, Dr Cameron recorded that the applicant had tingling in the toes of his right leg, and it was “sore to sit”. CT guided perineural right L5/S1 nerve root was requested.
On 7 April 2020, Dr Cameron recorded that the applicant would go ahead with a second injection and then have MRI. He still had tingling in his foot.
On 24 April 2020, Dr Cameron recorded that the applicant had pain in his right leg. It felt cold, with tingling in his foot. He jarred his back when he fell over a platform. He was mainly in bed with an ice pack on.
On 27 April 2020, Dr Cameron responded to a request for information from StateCover.
Dr Cameron reported that on 28 March 2020 [sic], the applicant was walking backwards in a pool. He tripped over a submerged step and fell backwards, jarring his back. The diagnosis was L5/S1 disc bulge to the right, with foraminal narrowing.
The applicant spent most of the day lying on his bed with an icepack on his back.
On 20 May 2020, Dr Cameron recorded that the MRI was still to be done. The applicant was on the waiting list. The surgeon recommended surgery. The applicant was to see another surgeon in the city on 4 June 2020.
On 28 May 2020, Dr Cameron recorded having had a long conversation about the applicant’s new return to work coordinator, “Greg”. The applicant was not happy about being pushed back to work. He wanted to go back but couldn’t. He had an appointment in August for an MRI. He could not walk or sit for very long, and only lying down gave him some relief.
On 4 August 2020, the practice receptionist, Ms Ainsley Healey, recorded having called the applicant about a request from StateCover for any information on all back injuries about which he had seen a doctor at DMC. The applicant advised her on 5 August 2020 that he was not happy to release the information.
On 11 August 2020, Dr Cameron recorded that the applicant had back pain radiating down his right leg. “Weak and leg gives way”. He had left foot pain at night.
On 17 August 2020, Dr Cameron recorded a new diagnosis of type 2 diabetes.
On 2 October 2020, Dr Cameron recorded that the applicant was sore in the back, with tingling in his right leg. He was to see Dr Charles New next week.
On 12 October 2020, Ms Healey recorded a request for clinical notes. The applicant “was happy to release the full file as per request (including paper file to date)”.

Concord Repatriation General Hospital

The applicant attended the hospital on 21 September 2016, with a history of lower back pain, going down the back of his left leg, following a fall two days ago, slipping on the poolside. There is a notation that he had “nil back injuries in the past but has thoracic lordosis since a child”.
On examination, the applicant had “nil sensory disturbance and normal power 5/5 in both legs”. He was able to mobilise.
The applicant was given advice on analgesia, a script for Panadeine Forte, and advised to seek physiotherapy input. Dr Cameron was asked to organise MRI if the symptoms did not settle over the next couple of weeks or became worse.
The applicant attended the hospital on 22/23 January 2018, when his diagnosis was recorded as “low back pain”.
The hospital notes record that the applicant had a “niggle” of pain yesterday, but it increased today after waking, “incapacitating him”. He had not been doing any gardening or heavy lifting and could not think of a precipitant. There is a note of “pinch [sic] nerve” in his past medical history.
The applicant described central pain over his lumbosacrum, which radiated down both legs with a tingling feeling. He had no weakness or bladder and bowel symptoms.
The applicant had a similar episode of pain a couple of years ago, which was treated by acupuncture, chiropracty and a steroid injection, “which he would never have again”.
The applicant’s pain had eased a little with oxycodone. The treating doctor had tried diazepam to relieve spasm, and he was being discharged afterwards. He was able to organise physiotherapy review for himself. Physiotherapy was most likely to be of benefit.
The applicant should try to lose weight, which would take some of the stress off his spine and decrease the risk of recurrent episodes. If the pain did not settle over the next week, or became worse, he should have a CT scan.
The applicant again attended the hospital on 4 March 2020, with a history of right leg pain for two days. He had woken up with right leg pain, radiating from his right buttock posteriorly to his great toe. There was some subjective paraesthesia to the right leg. The applicant’s left leg was normal. He was weightbearing with difficulty.
The applicant described an electric pain, no leg swelling or erythema, and some tightness to the back of the right calf. He had seen a chiropractor but did not have a back manipulation and was given Voltaren. He had seen a GP that day, and was prescribed Maxigesic and sent to the Emergency Department for “? DVT”. There was a history of “nil recent trauma”.
A bedside ultrasound was performed, with “nil above knee DVT seen. Likely sciatica”. The applicant was to have formal right leg Doppler to look for DVT.

Burwood Back Pain

On 2 March 2020, the applicant completed a patient information and consent to treatment form. It may be that he was mistaken about the date, given the date of the medical certificate and investigations, although Ms Bruzzese’s evidence is that he attended on 2 March 2020.
The applicant responded that “self” would be responsible for the account. I draw no adverse inference from this. He had not made a claim, and it may be inferred that he assumed he would have to pay the account.
The applicant’s major complaints are recorded as back and leg pain, described as “sharp and deep” for two days. He has answered “no” to each of the questions asking whether he has had previous chiropractic, physiotherapy, massage, or other treatment; and whether he had had this, or a similar condition, in the past.
The applicant rated his pain as 9/10. It was aggravated by standing. He has circled on the images an area of pain that appears to go from beneath his shoulder down the right side of his back and into his right leg.
The applicant has answered “no” to the question of whether he had had any car accidents, work injuries or accidents, sporting injuries or surgery and hospitalisation. He has circled “vomiting”, “nausea” and “difficulty breathing” as conditions he has had in the past or suffered from now. He has not circled any musculo-skeletal conditions.
The applicant’s responses to some of the questions are inconsistent with the allegation of injury and are not explained.
Mr Konstantinou issued a medical certificate dated 3 March 2020. He certified the applicant as unfit for work from 4 March 2020 to 5 March 2020, due to severe low back pain.
There is a report dated 4 March 2020 of a Chiropractic Imaging Series performed on
3 March 2020. The report is addressed to Mr Konstantinou.
The imaging carried out was of the applicant’s cervical, thoracic, and lumbar spines, and his pelvis and hips. Relevantly, the report stated that the applicant’s lumbosacral disc is developmentally small; there was mild multilevel disease in the lumbar spine, vertebral body heights were maintained, and there was no spondylolisthesis.

Dr Timothy Siu - neurosurgeon

Dr Siu reported first to Dr Cameron on 11 March 2020. His registrar, Dr Miles McCaffrey, dictated the report, but it had been sighted by Dr Siu.
There are two versions of the report, the first at page 60 of the attachments to the Application, and the second at page 420.
The report at page 60 of the Application recorded a 10-day history of right leg pain. The applicant had lower back pain that extended into the right leg, posterior calf, and dorsum of the foot into all toes. He had had an episode of right calf swelling and tightness, but ultrasound demonstrated no thrombosis. He had no relevant medical history.
The applicant’s CT demonstrated an L5/S1 disc prolapse causing S1 nerve compression on the right.
Dr Siu concluded that the applicant had an L5/S1 disc prolapse causing right sciatica. He recommended a nerve root sleeve injection.
The report at page 420 of the attachments to the Application contains the words “Initially he was woken from sleep with this [leg] pain with no preceding strenuous exercise or trauma”. It is otherwise the same as the other report dated 11 March 2020.
Dr Siu next reported on 1 May 2020, having reviewed the applicant.
The applicant reported that there remained very severe sciatic pain, despite two spinal injections. “Again”, this initially developed after a fall from a swim platform on
27 February 2020.
Dr Siu opined that, given the applicant’s persistent sciatica, consideration for a lumbar discectomy was warranted, despite his morbid obesity. He had advised the applicant to contact him once he had made a decision.
Dr Siu submitted financial information for proposed spinal decompression to StateCover on 17 December 2020.

Dr Peter Bentivoglio - neurosurgeon

Dr Bentivoglio was qualified by StateCover and reported on 17 June 2020.
Dr Bentivoglio recorded a history that on 28 February 2020, the applicant was walking backwards in a 1m deep pool when he tripped over an underwater platform and fell backwards into the water. He injured his lower back. He maintained that he had never had any prior back issues.
The applicant stopped work and reported the injury the same day. He went home and stayed in bed for two days, complaining of lower back pain, some numbness of his right foot, and pain in his right leg. He thought the left leg was normal.
Dr Bentivoglio recorded the history of the applicant’s presentation at Concord Hospital with possible DVT. He noted the CT scan and the applicant’s treatment.
Because he was overweight and very large, the applicant had been booked for MRI on
12 August 2020. I took this to mean that he had been booked for standing MRI, due to his size, as he has stated in his evidence. Dr Bentivoglio has noted that he had only been able to have a CT scan, due to his obesity.
Dr Bentivoglio’s working diagnosis was right L5/S1 disc prolapse related to the injury on
28 February 2020, with evidence of a radiculopathy.
StateCover asked for Dr Bentivoglio’s opinion as to whether the alleged mechanism of injury was consistent with the diagnosis, as “We feel Mr Scott may have not provided a true account of how his alleged back injury has occurred with many inconsistencies being observed”. It asked that he review the evidence provided. This included the claims documentation, the Council’s timeline, and the statements of Mr Labrakis, Ms Gilmour, and Mr Pocaterra.
Dr Bentivoglio recommended MRI, which “gives a lot more information of the anatomy of the issues”. The diagnosis was quite consistent with the applicant’s symptoms and the history of the injury.
Dr Bentivoglio did not believe the applicant’s condition was an aggravation or acceleration of a pre-existing problem. He had not had any back issues before. However, the CT scan showed a small osteophyte, which implied some chronicity of the disc problem at L5/S1, but due to the fact that he had no prior back issues, he would have to say it was not an exacerbation of a pre-existing problem. It was not an aggravation or deterioration of a disease.
Dr Bentivoglio “would have to say” that the applicant’s employment was a substantial contributing factor to the condition. The fall caused the onset of back pain and subsequent right-sided sciatica. His employment was the main contributing factor to his current problems.
As far as Dr Bentivoglio was aware, there were no non-work related factors that contributed to the condition. “It is all work related”. The applicant was very obese, which could be contributing to his problem of the back disc disease.
The applicant’s current back condition and the alleged circumstances of the injury were quite consistent with him developing lower back pain and subsequent right-sided sciatica.
The applicant was “basically bed-bound and house-bound” and was not able to work at all, which Dr Bentivoglio believed was a consequence of the workplace injury.
Dr Bentivoglio opined that because the applicant had evidence of severe pain unrelieved by conservative treatment, and of an S1 nerve root radiculopathy, he may have to consider operative intervention. If the MRI confirmed a significant disc prolapse, he supported the need for surgery. The surgery was due to the alleged injury and not related to an underlying pre-existing condition.
Dr Bentivoglio believed that, if the applicant’s symptoms did not settle, and the MRI confirmed a significant disc prolapse, surgery was appropriate, because of severe pain and a neurological deficit, that is weakness of plantar flexion of his foot, numbness in the S1 distribution, and an absent ankle reflex, which he noted on examination.
Dr Bentivoglio understood the respondent’s “legitimate concerns” about the applicant’s condition being a direct result of the incident, but the applicant maintained he had never had any back issues before the fall and related everything to the fall on 28 February 2020. He undoubtedly had a significant disc prolapse and evidence of an S1 radiculopathy. He noted the applicant’s sister’s voicemail on 2 March 2020, advising that Mr Scott was involved in an accident, and she needed to take him to the doctor/hospital, and observed that three days after his injury, he was taken to Concord Hospital.
StateCover requested that Dr Bentivoglio ask the applicant if he was involved in an accident on or about 2 March 2020, or sustained injuries outside work on or after 28 February 2020. The applicant maintained that the injury occurred at work on 28 February 2020.

Dr Charles H New – orthopaedic and spinal surgeon

Dr New was qualified by the applicant and reported first on 24 November 2020.
Dr New recorded a history of injury on 28 February 2020, when the applicant was in the pool, walking backwards, and walked into a platform and fell over. Prior to this incident, he stated categorically that there was no pre-history of this problem. He was able to finish his shift and had been off work since that time.
The applicant stated he had back pain and leg pain on the right side, equal in intensity. He had been referred by Dr Cameron to Dr Siu, who organised peri radicular nerve blocks that did not alleviate his pain.
The applicant described the pain as an aching, burning sensation, with pins and needles and stabbing qualities. The radicular pain went down the right leg in the L5 nerve root distribution. It was exacerbated by walking, changing positions, coughing, sneezing, prolonged sitting, and recurrent lifting and bending.
Dr New diagnosed a disc prolapse at L5/S1 and lateral canal stenosis. The disc prolapse was calcified. The question would eventually come as to whether Mr Scott required a disc excision at L5/S1, and neurolysis.
Dr New noted that Dr Bentivoglio “infers” that the applicant was booked for MRI because he was very large. Dr New suggested it was because he had persistent radicular pain. As I have noted, I understood Dr Bentivoglio to be referring to the type of MRI equipment required, and in fact Dr New went on to say that wide bore or open magnet may be required.
Dr New concurred with Dr Bentivoglio that the diagnosis was consistent with the applicant’s symptoms and history. Given that he was holding down full time work, without restriction, prior to his accident, he again concurred with Dr Bentivoglio regarding any pre-history. The applicant was at the stage where he would need to consider the possibility of surgery.
Dr New opined that the applicant’s current and future capacity for work had been substantially decreased as a result of the accident.
Dr New provided a supplementary report dated 18 August 2021.
Dr New had reviewed the records of Concord Hospital. “In answer to your specific question”, he opined that the applicant’s employment was the main contributing factor to any aggravation, acceleration, and exacerbation of a pre-existing back condition.
The most obvious reason for this was that the applicant was holding down a full time job without restriction. His back pain had obviously resolved at the time of his injury. On
22 January 2018, the pain was described as a “niggle”, and his examination was unremarkable, noting that he was discharged.
Dr New also noted the entry on 21 September 2016, when a neurological examination was unremarkable, and the applicant was discharged. His neurological examination on
4 March 2020 was near normal, and he was discharged with minor analgesia for follow up by his GP
Dr New was asked whether the applicant was fit for work at the time of his injury. He responded that, by his account, he was working without restriction and would appear to be [have been] fit for work.
Dr New opined that, on review of the information from the public hospital system, the applicant sustained a number of minor problems that historically had not changed his ability to work until the date of his injury. He has a disc prolapse and this may have presented with sciatica.
In Dr New’s physical review, the applicant had very protected sitting and standing, an antalgic gait, positive Trendelenburg sign, and a genuine presentation of radiculopathy, which may require surgical decompression, although a fusion would probably not be necessary.
Dr New concluded that the only influence “this” may have in the future is a reduction of one-tenth in the applicant’s whole person impairment. I assume that by “this”, he meant the applicant’s past history.

SUBMISSIONS

The submissions have been recorded, so I will summarise them.

Applicant

The applicant submitted that, the respondent having conceded that there was a fall in the pool, although not the date on which it occurred, although it “probably” concedes that it occurred in 2020, it is now a matter for me to determine whether it caused the onset of his symptoms.
The applicant referred to his evidence and that of Mr Labrakis. He submitted the circumstances of the injury are fairly well understood. The evidence is consistent with the date of injury being 28 February 2020. It is significant that the applicant followed up with
Ms Gilmour a couple of days later, as he knew something was amiss.

The applicant referred to his evidence that “Luke” was in the office when he spoke to
Ms Gilmour about the reporting of the injury and submitted he would ask me to draw certain conclusions from the lack of evidence from him. He submitted that Mr Labrakis embraced almost exactly his wording that he “did my back”. You would not expect a witness, who was not injured, to recall the exact date of the injury. The fact that he doesn’t recall it adds to his credibility.
The applicant submitted that the respondent’s witnesses had made unnecessary and irrelevant statements about him, and I would not regard them with any weight whatsoever.
The applicant submitted that the height of the respondent’s case is his unreliability as to date and time. He is not the most reliable historian, which does not mean I would not accept there was a fall in the pool. He referred to his GP’s notes, which confirm what he said about seeing a chiropractor and attending hospital.
The applicant referred to his GP attendance in May 2019. The symptoms were in his left leg, not his right, as in 2020. The symptoms were similar, but not the same. No scans were taken. He submitted that nothing turns on it. Isolated issues do not mean he was not injured. They may have made him more vulnerable.
The applicant submitted that he worked for seven months after this. He did not have a severely disabled spine. Any suggestion that he had a back injury and tried to mask it cannot be sustained. He referred to his attendance on Dr Liu soon after the injury with a 10 day history of leg pain. Dr Liu’s reference to “again” in his report dated 1 May 2020 means that I would accept it was the history given on the first occasion.
The applicant submitted that it flows through everything that he is a poor historian. Dr New was given an incorrect history, but his supplementary report corrected it in a meaningful and careful way. The applicant has a poor historical memory but is not dishonest.
The applicant had been referred to his extensive history, which he has explained in his statement dated 13 December 2021. He submitted there is no reason not to accept his evidence. He worked for an uninterrupted period of seven months in moderately strenuous work, with some forces on his spine. Someone with a collapsing L4/5 disc would not be doing this work.
The applicant submitted that Dr Siu’s report is not a medico-legal report. The fact that he said there was no “relevant” medical history is to the point. There was no prior back injury.
Dr New was still persuaded there was an aggravation at work that brought the applicant’s symptoms to an unmanageable condition, requiring surgery and preventing him from working.
The applicant submitted that his concurrent or alternate work at Santa Sabina is a “red herring” when the statements in his case are read. Ms Bruzzese would have no reason to give false evidence.
The applicant referred to his evidence, and that of Dr New, about his condition since the accident. His capacity for work was substantially reduced. Dr Bentivoglio, in June 2020, opined that he was not fit for his pre-injury duties, and was bed-bound and house-bound. This opinion is as strong an opinion on capacity as we will get. He is the respondent’s independent medical examiner, albeit with an incorrect history.
The applicant submitted that Dr Bentivoglio opined that, if MRI confirmed a significant prolapse, that would support the need for surgery. There is no further report from him. The respondent confirmed that was the case.
The applicant submitted that the respondent’s case is that he already had a back problem; he had made complaints to doctors; something happened at work, and the problem was either not aggravated or aggravated temporarily. He submitted both are unacceptable. The baseline was that he could walk, he had “niggles”. This is very common. It can’t be held against him that he had previous problems, which is inconsistent with the “egg-shell skull” principle.
The applicant submitted that he is a “pretty average” or “bad” historian. He is not dishonest. He gave a credible account, and a co-worker with no reason to lie supported him. The interpersonal conflict between him and the respondent’s witnesses would cause me some concern. He referred to Ms Gilmour’s “irrelevant and uncorroborated” statements, which he submitted were a character attack, which he hoped would be resisted, and submitted should be given no weight.
The applicant submitted that the question is, did the incident occur? It then becomes a medical question. It doesn’t matter if he was not liked. What matters is whether he had an injury, and he did.
As regards incapacity, the applicant submitted that the last date on which he attempted to work was 3 March 2020, since when he has been totally unfit for work. Realistically, this may have been from 28 February 2020, but he “soldiered on”. He was certified on 20 May 2020 as having no capacity for work. He has not had the treatment he requires due to a “flimsy denial”.
The applicant submitted that the respondent, in calculating his PIAWE, had not factored in his earnings at Santa Sabina. It is his total earnings that must be considered. He submitted his figure is correct. It is difficult for the respondent to say his work at Santa Sabina is relevant to my findings, but not to his PIAWE.
Finally, the applicant submitted that Dr Siu needs to perform the surgery. Drs New and Bentivoglio support this. Dr Siu formed this view after two appointments. This provides some insight into the severity of his symptoms.
In reply to the respondent, the applicant submitted that I am being asked to do a lot with medical records that I am not permitted to do. He referred to what Basten JA said in Mason v Demasi [2009] NSWCA 227 (Demasi).
As regards the applicant seeing another GP on 4 March 2020, the applicant submitted it was Dr Cameron he saw, as the CT scan was addressed to him.
The applicant submitted that I was being asked to draw conclusions about the evidence of
Dr Siu. It was suggested by the respondent that he was co-opted into a fraud. He was never asked what he did, or why. This should have been put to him. The submission was improper. It provided more support for the view that parsing through medical records and drawing conclusions about credit is something I would not do.
As to his credit, the applicant submitted that the respondent was asked if it wished to cross-examine him, and it did not. The inconsistencies should have been put to him. If it is being put that he co-opted a surgeon and co-workers to give false evidence, this should have been put to him. He referred to the decision in Finney Pty Limited t/as Cut Price Car Rentals v Chequer [2021] NSWPICPD 13 (Finney). Allegations of dishonesty and fraud cannot just be done in submissions.
The applicant submitted that Ms Bruzzese has given sworn evidence. If it is being submitted that she has not told the truth, that should have been put to her. It is being submitted that he is discreditable because he did not tell Dr Cameron about the injury for a few weeks. That assumes that because Dr Cameron didn’t write it down, he wasn’t told, and the injury was “made up” some time later. We can’t tell what Dr Cameron might say.
The applicant submitted that the respondent’s submissions were directed to dishonesty, which means everything was written down, and written down accurately. He asked why he would wait three weeks to bring it up if he was dishonest?

Respondent

The respondent submitted that there is a substantial dispute as to causation. The outcome depends on what I make of various versions of events by the applicant and other witnesses, and how I resolve the issues arising from poor, incomplete, and perhaps untruthful histories to the doctors and the tribunal.
The respondent referred to the applicant’s first statement, in which he said he had not had any back injuries, consulted a doctor, or received treatment for any part of his back before February 2020. It submitted that this is manifestly incorrect, while at the same time so categorical, that I would have concerns about whether the applicant was telling the truth. This flows through to the acceptance and weight of the medical evidence on causation.
The respondent referred to the records of Concord Hospital. It submitted that, from about May 2014 onwards, the applicant presented at least every 12 months complaining of various forms of back pain, remarkably similar to the complaints he made after the incident at work.
The respondent also referred to the GP’s records, submitting that by 3 January 2019, the applicant had an unhealthy spine and a large disc bulge at L5/S1, sufficient for him to see his GP, with a history of a sore back for the last 10 days.
The respondent submitted that it is abundantly clear that the applicant had substantial pre-existing back pain, attended for treatment at least six times, and was referred for CT and
X-ray. When he came to prepare his statement, he categorically denied any injury or treatment to his back.
The respondent submitted this was a pattern of conduct and did not occur just because the applicant was feeling nervous, or due to some circumstance on that day. He also categorically denied any previous back pain to Dr New and told him he was not able to finish his shift on 28 February 2020 and had been off work since. This is not true, as on the applicant’s case, he went to work for Santa Sabina on 2 March 2020 and 3 March 2020.
The respondent submitted there was a deliberate attempt to craft a history that reduced or concealed the applicant’s previous history. Lest I think there is only one statement, the respondent submitted that the applicant gave the same history to Dr Bentivoglio, before he saw Dr New. There was a complete denial of previous back issues. The applicant was hiding the fact that he worked on 2 March 2020 and 3 March 2020.
The respondent submitted that the applicant’s solicitors were alive to this, and obtained a supplementary statement dated 13 December 2021 and a supplementary report from
Dr New, but the statement does not fix the issues. The applicant said he did not recall the visits to Concord Hospital or his GP, but he knew the issues were minor, and caused him no incapacity.
The respondent submitted that, given the applicant’s demonstrable unwillingness or inability to tell the truth in his initial statement or to the doctors, I would have great difficulty accepting his evidence “at the heel of the hunt”. There is a credit issue.
The respondent submitted that it took four consultations with Dr Cameron before he got a history that suggested the applicant’s condition was work-related. He did not tell Dr Cameron about the work injury until about a month after it occurred. The applicant had access to the GP’s records but has not attempted to tell me why he did not tell the GP about the work injury until one month later. This is not a “one off”.
The respondent referred to the records of Concord Hospital on 4 March 2020 that the applicant woke up with right leg pain two days ago. He said he had seen a GP that day. The respondent submitted this was not Dr Cameron, so it is not clear what GP it was. There is another GP the applicant has not told us about, and we don’t know what he told that GP.
The respondent compared Dr Siu’s report dated 11 March 2020 at page 60 of the attachments to the Application to that at page 420 of the attachments. It submitted that there is no explanation from either Dr Siu or the applicant for the change in the report, and absent that evidence, the only conclusion I can reasonably draw is that the applicant told Dr Siu the truth the first time.
The respondent submitted that, at some stage, either Dr Siu or the applicant realised that the report would not help the applicant to get the respondent to pay for the surgery and produced a “sanitised version”. If this was one report where some had been removed, this could be an administrative error “etc”, but there is a pattern of evasion by the applicant regarding the circumstances of the injury.
The respondent submitted that I cannot place any weight on the evidence of the applicant or that of the doctors who have been given a materially incomplete history. Neither Dr New nor Dr Bentivoglio was given the CT scan of 2019. Things were “a bit worse”, but there was substantial existing pathology in 2019. This does not mean there has been a change in pathology due to what happened.
The respondent submitted that Dr New, in providing his supplementary report, was not given a complete account of the applicant’s pre-existing history. He “generously” said the applicant must have misunderstood him. He was told about the attendances at Concord Hospital, but not about those to Dr Cameron. He was “not given a full deck to play with” and I cannot place any weight on him.
The applicant had submitted that both Dr New and Dr Bentivoglio embraced the need for surgery. The respondent submitted that, leaving aside the disquiet about Dr Siu’s proposal, neither Dr New nor Dr Bentivoglio wholeheartedly embraced it. There is no evidence that nerve conduction studies or MRI have been performed. It would be assumed that there would be reports if they had.
The respondent submitted that there is no evidence from Dr Siu after 2020, and none of the investigations recommended by the independent medical examiners. I am asked to accept that the surgery is “reasonable and necessary” [sic]. There is no explanation as to why the applicant has not gone back to see Drs Siu or New.
The respondent submitted there is an evidentiary vacuum, and I would not be satisfied at the present date that the surgery is reasonable and necessary. I do not know the condition of the applicant’s back at present. The s 60 claim cannot be made good.
As to liability for the injury, the respondent accepted that, at some point in February 2020, the applicant tripped over a step. Mr Labrakis saw it, and the applicant possibly said his back hurt. The respondent submitted that the evidence is that the applicant continued to work; there is a complete lack of truth in the history; and he regularly complained about his back.
The respondent submitted that I would place considerable weight on the emails shortly after the alleged event, when what the applicant said was fresh in the witnesses’ minds. There was no litigation, and no “axes to grind”. The applicant said in his last statement that he may have “whinged” about his back. He was “not backwards in coming forward” before, but here, in circumstances where he would have me believe he was in terrible pain and disabled by the injury, he did not say anything about back pain or an injury.
The respondent submitted that I would have significant hesitation in accepting what the applicant says about what happened at work, and after. There is no suggestion from
Ms Bruzzese that his shifts on 2 March 2020 or 3 March 2020 were curtailed. She has listed a couple of times that she worked shorter hours but there is no suggestion the applicant did.
The respondent submitted that the applicant is adamant that the date of injury was
28 February 2020. He worked on for two more days. The history recorded at Concord Hospital on 4 March 2020 was that he had woken with right leg pain and his leg had been sore for a couple of days. Dr Siu recorded that he had woken with pain, with no trauma.
The respondent submitted that all these matters would cause me significant hesitation in accepting, even if I accept that the applicant tripped over a step around 28 February 2020, that he suffered anything other than transient pain, or any injury as a result. If it caused significant pain, we would expect something in the contemporary records. The only conclusion to be drawn is that the injury is not work-related and not compensable.
As regards the applicant’s PIAWE, the respondent submitted that if I accept Ms Bruzzese’s evidence that he worked at Santa Sabina in February/March 2020, it may be appropriate to include that work in the PIAWE.
The respondent finally submitted that there is no evidence about incapacity after 2020. There is no evidence as to the applicant’s progress, improvement, etc. There is no evidence on which I can rely regarding capacity over the last several years.

SUMMARY

Injury

I observe at the outset that I have given no weight to the evidence of the respondent’s witnesses that sought to disparage the applicant’s communication skills, demeanour, alleged failure to be a “team player”, the way in which he carried out his duties, or complaints that may have been made about him by parents of students. As he submitted, it does not matter that he was not liked. What matters is whether he sustained an injury and, if so, what flows from it.
The respondent accepts that at some point in 2020, the applicant, in the course of his employment, tripped over a step in the swimming pool at EAC. In my view, the evidence establishes that the most likely date on which this occurred was 28 February 2020.
The applicant maintains that the date of the injury was 28 February 2020, which was a Friday. Mr Labrakis, who was working with him, was unable to confirm the date of the injury, but stated in April 2020 that it was some time that year, possibly on a Friday. Both he and the applicant stated that Mr Scott said words to the effect of “I’ve done my back”. Mr Pocaterra thinks it was 28 February 2020 when the applicant told him about the incident. Ms Gilmour appears to be mistaken in her evidence.
Despite the evidence of the respondent’s witnesses, apart from Mr Labrakis, that the applicant’s only concern was to bring to their attention that the step had been left in the wrong place, I accept that he did sustain an injury to his back when he tripped on the step. Mr Labrakis was beside him in the pool. He had no reason to give other than truthful evidence about what he saw and heard.
The applicant’s evidence is that he felt pins and needles from his back to his toes when he finished teaching on 28 February 2020.
Ms Bruzzese, who also had no reason to give other than truthful evidence, stated that the applicant was in immense pain throughout his shift on 2 March 2020, which was a Monday. The applicant has given evidence that he was “struggling” at work that day. He could hardly walk and had pains going down his legs.
Ms Bruzzese stated the applicant attended a chiropractor during his lunch break on
2 March 2020. His evidence is that he did so on 3 March 2020, and the records of Burwood Back Pain suggest that is correct, despite the date he wrote on the patient information form. There is a certificate dated 3 March 2020, issued by Mr Konstantinou, and investigations of Chiropractic Imaging Series of the same date.
As I have noted, some of the applicant’s responses to the questions posed by Burwood Back Pain are inconsistent with the allegation of injury, but in my view that is insufficient for me to find that the injury did not occur.
The applicant attended Concord Hospital on 4 March 2020. The hospital recorded a history of right leg pain for two days, and that the applicant had woken with right leg pain. It did not record any history of the injury, and in fact recorded “nil recent trauma”, but as I have said, I am satisfied that the injury did occur.
The respondent submitted that the applicant must have seen a GP other than Dr Cameron on 4 March 2020, because the hospital recorded that he had seen a GP that day. The applicant submitted that it was Dr Cameron he saw, as the report of the scan of
4 March 2020 is addressed to him.
It seems more likely to me that the scan is addressed to Dr Cameron because he is the applicant’s regular GP. However, I am not prepared to draw an inference adverse to the applicant because the hospital recorded that he had seen a GP that day, and there is no evidence from a GP other than Dr Cameron.
The applicant has been described as a poor historian, and I certainly accept that is the case.

Although the applicant’s evidence is that he first saw Dr Cameron about the injury on
9 March 2020, Dr Cameron has recorded that he attended on 6 March 2020, with a history of right sciatic pain. There is a CT scan of that date. The history recorded on that report of right sciatica for five days is consistent with the date of injury being on or about 28 February 2020.
The applicant also initially gave evidence that he attended Concord Hospital on or about
11 March 2020, when in fact it was a week earlier.
The applicant did not recall visits to the hospital in 2016 and 2018, and I draw no adverse inference from the failure to recall those attendances.
The applicant had had a previous CT scan on 2 January 2019. Like the CT scan on
6 March 2020, it showed a disc bulge at L5/S1. However, the later scan was recorded as “now” showing evidence of a right paracentral protrusion and extrusion component that appeared unstable. The findings warranted MRI before referral to a neurosurgeon.
This suggests that there had been a deterioration in the applicant’s condition. Dr Cameron referred him to Dr Siu at this point. It does not appear that he had previously referred him for specialist opinion.
It was not until 27 March 2020 that Dr Cameron recorded that the applicant had fallen over a step at work and hurt his back. He has recorded the date as 28 March 2020, which is an obvious error. In my view, it is likely that he meant to record it as 28 February 2020.
There is no evidence from Dr Cameron or the applicant as to whether Mr Scott told him about the injury before 27 March 2020, and he merely failed to record it, or he did not tell him about it until 27 March 2020.
The fact remains that I accept that an injury did occur on or about 28 February 2020, in the way the applicant alleges it occurred. There is contemporaneous evidence to support his account. I am not prepared to draw the inference that he was dishonest, or “made up” the injury, because it was not recorded by Dr Cameron until a month after it occurred.
The applicant referred to Demasi, in which Basten JA said:
“First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a) the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b)    the fact 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;
(c)     the record did not identify any questions which may have elucidated replies;
(d)     the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e)     a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.”
The principles of Demasi apply also to the evidence of Dr Siu. In addition, the respondent made a submission that, because there are differing versions of Dr Siu’s report dated
11 March 2020, the inference should be drawn that at some point, a “sanitised version” of the report was provided, to assist the applicant to have the respondent pay for the surgery.
This is a very serious allegation against Dr Siu and the applicant. I have had no regard to it in determining the matter.
While it did not form part of her reasons for judgment, in Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 (Hancock), Beazley JA said [at 105]:

“There is another matter which I feel compelled to raise in these reasons. In his reasons, his Honour recorded, at [124], the following two submissions made by the respondent:

‘(r) the reports from the treating specialist Dr Summersell contain no history of a 'fall' or a 'second fall' or 'two days sanding on knees' even though [the appellant] first presented to Dr Summersell only seven days after presenting at the Grafton Base Hospital, reporting multiple problems in the right knee aggravated by two days sanding at home. It is submitted that these histories were deliberately withheld and explain Dr Summersell's confusion and inability to reach a diagnosis;
(s) on 6 May 2008 Dr Summersell wrote two reports to Dr Barrell. In the first report,
Dr Summersell in dealing with the question of causation said '[the appellant] feels that the injury he had about three years ago is responsible for the current condition of his knee'. In the further report, presumably written later, he expressed the opinion 'I think the injury [the appellant] had about three years ago is responsible for the current condition of his knee.' It is submitted that Dr Summersell's opinion has been influenced by the possibility of private hospital cover for the operative procedure recommended ...’ (emphasis added by her Honour).
With respect to the drafter of these submissions, they are improper. The submissions were made on an occasion of privilege and in circumstances where the drafter would have expected that neither the appellant nor Dr Summersell were likely to be called to give evidence, as turned out to be the case. It followed that neither the appellant nor
Dr Summersell had the opportunity to defend themselves against the serious allegations of impropriety and dishonesty that were directed to their conduct. Courts and tribunals do not provide a forum for the making of serious allegations of impropriety and fraud, other than in well-accepted circumstances.
The principles which govern the making of such allegations were breached on this occasion. Before any such submission was made, the allegations of such seriously wrongful conduct should first have been put to the relevant persons, namely, the appellant and Dr Summersell. This could have been done by seeking an oral hearing. In seeking such a hearing, it would be incumbent upon the respondent to make it explicit that such allegations were being made so that the Court understood the case fell outside the usual practice in the Commission not to have an oral hearing. The respondent did not make any such application. The consequence is that the allegations are permanently part of the public record.”

Her Honour’s remarks in Hancock are apposite to the submission made in this matter regarding Dr Siu and the applicant.
The respondent had the option at any stage between March 2020 and the hearing of this matter almost three years later to request Dr Siu to clarify his opinion. There is no evidence that it did so. It did not seek to cross-examine Dr Siu so that the allegation that his report had been “sanitised” may be put to him. He has had no opportunity to respond to the allegation.
It is not possible to know why there are differing versions of Dr Siu’s report, but I am certainly not prepared to draw the inference that he was somehow conspiring with the applicant to have the proposed surgery paid for by the respondent. A possible explanation is that because the report was dictated by Dr McCaffrey, but sighted by Dr Siu, one or both doctors made some amendments to it. However, that is only speculation on my part. It again illustrates what was said in Demasi.
When Dr Siu reported on 1 May 2020, he referred “again” to the history that the applicant’s severe sciatic pain developed after a fall from a swim platform on 27 February 2020. As I have said, it is likely that this was in fact on 28 February 2020, but the inference is that Dr Siu had been given this history before 1 May 2020.
The respondent submitted that the applicant deliberately attempted to craft a history that reduced or concealed his previous history and was “hiding” the fact that he worked on
2 March 2020 and 3 March 2020. These are not inferences I am prepared to draw.
The applicant said in his first statement that he worked on 2 March 2020. Ms Bruzzese’s evidence is that he went to work on 3 March 2020 but did not work “completely” due to unbearable back pain, and a family member was called to pick him up. He has confirmed his evidence about this work in the statement dated 8 June 2022. He obviously gave Dr New an incorrect history of ceasing work on 28 February 2020, but that does not in my view mean he was concealing the fact that he worked on 2 March 2020 and for at least part of
3 March 2020.
There was no application to cross-examine the applicant, although it was foreshadowed on two occasions. I am not permitted to draw an adverse conclusion against a party for not having cross-examined a witness. In Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 at [105] the Court of Appeal held that no adverse inference arose from the failure to cross-examine in a case where the issues had been fully set out in affidavits, which were exchanged prior to the hearing.
In Finney, Acting Deputy President Parker SC held at [59] that procedural fairness required that:
“(a)    the findings of dishonesty, creating false and misleading evidence not be made until those allegations were put squarely to Mr King;
(b)     the Arbitrator should have informed the parties that he had formed a preliminary view with respect to the evidence of Mr King;
(c)     the Arbitrator should have re-convened the hearing;
(d)     the parties should have been invited to make submissions as to what course the proceedings should then take in view of the articulated ‘preliminary view’, and
(e)     the parties should have been permitted to make additional submissions addressing what findings should be made and as to the terms in which the findings should be made.”
Parker ADP held that Mr King had been denied procedural fairness because the arbitrator should have informed the parties that he had formed an adverse view of his credit. Mr King should therefore have been given the opportunity to address the issue before very serious findings were made against him.
In New South Wales Police Force v Winter [2011] NSWCA 330 (Winter), the issues of cross-examination and the obligation to accord procedural fairness were discussed, from [81].
Campbell JA said at [84]:
“The obligation to accord procedural fairness requires that a party be given notice of the case that is put against him or her, and a reasonable opportunity to put evidence and submissions before a tribunal concerning that case…In the present case, that obligation was satisfied. The Respondent had the opportunity, until his counsel took an objection, of giving his account concerning the matters on which Mr Stanton’s submissions ultimately succeeded. Further, no attempt was made to recall the Respondent to give evidence on those topics…” (Emphasis in original).
The applicant was on notice that the respondent disputed that he had sustained injury to his back on 28 February 2020. It maintained that dispute until the hearing on 3 February 2023, when it made a limited concession. The applicant was also aware that clinical records disclosed that he had had symptoms in his lumbar spine before the injury occurred, and he had sought treatment. He has responded to that evidence in his supplementary statements, with evidence from Ms Bruzzese, and further evidence from Dr New. He has had a reasonable opportunity to put evidence and submissions to the Commission about these matters. As I have said, I have had no regard to the submission that Dr Siu produced a “sanitised” report.
I accept that the applicant’s evidence as to his pre-injury history, and the histories he provided to the doctors may have been somewhat lacking, and imprecise, but I do not believe that, in the end, it affects the outcome.
In the applicant’s first statement, he said he had not consulted a doctor or received treatment for his back before February 2020, and there had been no tasks at work that were difficult for him to perform.
The medical evidence shows that the applicant last consulted Dr Cameron before
March 2020 with lower back pain on 29 May 2019, although the consultation was also about a respiratory tract infection. That was about nine months before the injury. The applicant would not necessarily regard it as relevant to an injury in February 2020. There is no evidence to suggest he had difficulty performing his duties during that nine month period.
The applicant has given evidence about what was revealed to him by his clinical records. He said that he previously had some back pain, but it was intermittent, and soon settled. It did not prevent him from working, driving a car and lifting things. If he had been taking time off work for back pain (or other reasons) before the injury, I would expect the respondent to have provided evidence of this. Its witnesses certainly referred to him complaining about back pain but did not say it affected his work.
The applicant’s evidence is that he did not mention previous back pain to the medical assessors as he did not think it was relevant or serious. He thought their questions were directed at injuries, rather than general back pain. In my view, that is a reasonable explanation.
The applicant stated that, after the injury, his back pain was significantly worse. His evidence about his condition is supported by Ms Bruzzese. It is also supported by the fact that
Dr Cameron, for the first time, referred him for specialist opinion, by Dr Siu reporting very severe sciatic pain and the need for surgery, by Dr Bentivoglio, and by Dr New.
The respondent submitted that the doctors were given an incomplete history. However, while Dr Bentivoglio recorded a history of no prior back issues, he also had the statements of
Mr Labrakis, Ms Gilmour and Mr Pocaterra, the claims documentation, and the Council’s timeline.
As I have noted, Mr Pocaterra stated that the applicant had often complained about pre-existing back problems and had told him about injuring his back when fixing a gate.
Ms Gilmour stated that the applicant’s sister told her he had a pre-existing injury to his back, and that Mr Blouin told her the same thing.
Dr Bentivoglio was therefore alive to the respondent’s concerns about the injury, and it in fact put them squarely to him and asked him to review its evidence. He nonetheless provided a report that was supportive of the applicant. He found objective signs on examination and opined that Mr Scott may have to consider operative intervention.
Dr Bentivoglio accepted that the applicant was bed-bound and house-bound, and had no capacity for work, which was the consequence of the workplace injury. He did not suggest that the applicant’s condition was other than as he presented on examination.
Dr New was provided with the records of Concord Hospital and maintained his opinion. I do not believe I should disregard it because he did not have Dr Cameron’s records. He pointed out that the most obvious reason for accepting that the applicant’s employment was the main contributing factor to any aggravation, acceleration and exacerbation of a pre-existing condition was that he was holding down a full time job without restriction. As the applicant conceded, it was not a full time job, but he was certainly working without restriction.
The sequence of events then is that the applicant was working, apparently without restriction, until 28 February 2020, when he tripped over a platform under the water in the pool. He had previously been able to drive, lift things, and otherwise go about his normal life, including playing sport, despite previous presentations and treatment for back pain.
The applicant attended work in pain, described by Ms Bruzzese as “immense”, on
2 March 2020, some three days after the injury. He stated that he could hardly walk. He had pains down his leg, had to sit down more than twice, and was struggling.
The applicant was unable to “work completely” on 3 March 2020. He called his father to pick him up. He sought treatment from a chiropractor on either 2 March 2020 or 3 March 2020, as he was unable to obtain an appointment with his GP. He attended Concord Hospital on
4 March 2020.
The applicant can lie down, but after a while he gets stiff. He has trouble walking or driving. He struggles to walk to the letter box. He takes various medications, including Endone. He has pins and needles in his legs and feet, and sometimes loses sensation in his feet. He is unable to work, struggles to drive long distances, sit or stand for long periods, sleep or lie down. He cannot pick up anything heavy or bend without sharp pain.
The applicant attended Dr Cameron on 6 March 2020 and was referred for CT and MRI scans. The MRI did not take place, for various reasons.
The CT scan of 6 March 2020 was reported as showing a disc bulge at L5/S1, eccentric to the right, and “now” evidence of a right paracentral protrusion and extrusion component that appeared unstable.
Dr Cameron referred the applicant to Dr Siu.
Dr Siu recorded that the applicant’s CT showed a L5/S1 disc prolapse, causing S1 nerve root compression on the right. The disc prolapse was causing right sciatica. After two spinal injections, the applicant was still in very severe sciatic pain, and consideration of lumbar discectomy was warranted.
I have referred to Dr Bentivoglio’s evidence above.
Dr New diagnosed a disc prolapse at L5/S1 and lateral canal stenosis. The prolapse was calcified. The question of surgery would eventually arise.
The issue of causation is determined by the facts in each case. It requires a common sense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
In Kooragang, Kirby P, as he then was, said at [461G]:
“[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate.”
After referring to English authorities, his Honour added at [462E]:
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
When the above sequence of events is considered, the common sense “causal chain” is in my view established. The evidence may be imperfect, as is often the case, but the applicant clearly sustained an injury in the course of his employment on or about 28 February 2020 (probably on that date).
It appears most likely to me, despite Dr Bentivoglio’s opinion, the applicant’s injury is the aggravation, acceleration, exacerbation, or deterioration of a disease, pursuant to s 4(b)(ii) of the 1987 Act. I accept Dr New’s evidence in this regard.
I therefore determine that on 28 February 2020, the applicant sustained injury arising out of or in the course of his employment with the respondent.

Incapacity

The respondent submitted that there is no evidence about incapacity after 2020, and no evidence on which I can rely regarding capacity over the last several years.
The applicant submitted that he has been totally unfit for work since 3 March 2020, when he last attempted to work, or possibly even from 28 February 2020. He was certified on
20 May 2020 as having no capacity for work. He has not had the treatment he requires.
Dr Bentivoglio opined in June 2020 that the applicant was “not really able to work at all”.
Dr New opined in November 2020 that his capacity for work, both current and future, had been substantially decreased.

While it would have been preferable to have more recent evidence as to the applicant’s capacity for work, I accept that it is unlikely to have altered since Dr Bentivoglio and Dr New examined him. He has not had the surgery that was foreshadowed and does not appear to have had a great deal of conservative treatment.
I accept that the applicant has had no capacity for work since he attempted to work on
3 March 2020. The award of weekly benefits will commence from 4 March 2020.
The applicant claims that his PIAWE were $455.75 per week. The respondent asserts that his PIAWE were $402.02 per week. It has supported its wage schedule with payslips and its PIAWE calculations.
I have assumed that the respondent’s calculations do not include the applicant’s earnings at Santa Sabina. It conceded in its submissions that, if I accepted Ms Bruzzese’s evidence that the applicant worked at Santa Sabina in February/March 2020, it may be appropriate to include that work in calculating the PIAWE.
I do accept that the applicant had concurrent employment at Santa Sabina. It is in fact the respondent’s evidence that includes an email and attached documents from Ms Athena Ghitgas, executive assistant to the principal, dated 2 August 2022 confirming that the applicant was employed from 30 January 2020 to 31 January 2020 and was paid for 16 hours for the three week Primary Swimming Program. He was employed “casually from time to time”.
The letter of offer to the applicant, dated 2 March 2020, states that his hourly rate was $29.96 per hour.
The payslip issued to the applicant indicates that he was paid $479.36 by Santa Sabina, and that is reflected in his tax return for the year ending 30 June 2020. That would amount to approximately $9.22 per week. If that is added to $402.02 per week, the applicant’s PIAWE would be $411.24 per week.
However, neither party has made any submissions as to whether Schedule 3, cl 4 of the 1987 Act and cl 8F of the Workers Compensation Regulation 2016 would apply to the applicant’s earnings at Santa Sabina, given the short duration of his employment.
Rather than make an award of weekly benefits, I will direct the parties to either agree on the applicant’s PIAWE or provide written submissions as to the award that should be made in his favour.
The period of 130 weeks expired on 31 August 2022, and the parties will also be directed to provide submissions on the application, if relevant, of s 38 of the 1987 Act.

Medical expenses

The applicant submitted that Dr Siu needs to perform the proposed surgery, and Drs New and Bentivoglio support this.
The respondent submitted that I could not be satisfied as at the present date that the surgery is “reasonable and necessary”.
Section 60 of the 1987 Act provides as follows:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that--
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2)
…”
Again, while it would have been preferable to have updated evidence from, in particular,
Dr Siu, I am satisfied that the proposed surgery is reasonably necessary medical treatment as a result of the injury.
The applicant has given evidence in his statement dated 13 December 2021 of the ongoing effects of the injury and stated that the treatment he has undergone has not helped.
Dr Siu opined at an early stage that the applicant should be considered for lumbar discectomy, and Mr Scott should contact him when he had made a decision. He did not apparently feel the need to await the MRI scan, as he sought approval for the surgery on
17 December 2020.
Dr Bentivoglio considered in June 2020 that, if MRI confirmed a significant disc prolapse (and right L5/S1 disc prolapse was his working diagnosis), he would support the need for surgery.
Dr New reported in November 2020 that nerve root sleeve blocks had given the applicant only modest relief. He recommended some alternative treatment, and weight loss, but he opined that the question would eventually come as to whether he required disc excision and neurolysis. This would need to be confirmed by his treating surgeon.
Dr New opined that the applicant, with genuine radiculopathy, would be a candidate for decompressive surgery. It is unlikely that the spinal fusion would assist his chronic back pain.
All the surgeons who have examined the applicant expressed the opinion that he required surgery. Dr Siu, who was in the best position to make this assessment, proposed to perform it in late 2020 or early 2021.
The applicant may have had suboptimal treatment, due to liability having been disputed and the protracted nature of the proceedings, but in my view, it is unlikely that the position with respect to the necessity for surgery has changed.
I am satisfied, having considered the applicant’s evidence and the medical evidence, that the proposed surgery is reasonably necessary as a result of the injury on 28 February 2020.
No claim has been made for medical expenses other than the cost of surgery, and no order is made in respect of other medical expenses.
The orders are as set out in the Certificate of Determination.

[2023] NSWPIC 72

24 February 2023