Smith v Coffs Harbour City Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Smith v Coffs Harbour City Council & Ors [2023] NSWPIC 558
APPLICANT:	Andrew Fraser Smith
FIRST RESPONDENT:	Acciona Ferrovial Joint Venture
SECOND RESPONDENT:	Coffs Harbour City Council
MEMBER:	Jane Peacock
DATE OF DECISION:	23 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Second respondent denied liability on the basis that the applicant was on an authorised absence and/or not on an ordinary recess; evidence weighed in the balance and on the balance of probabilities it was determined that the second respondent was liable; the liability was apportioned equally between the first and second respondents; Held – award for the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the applicant in respect of the claim for weekly compensation under s 37 of the Workers Compensation Act 1987 as follows: (a) From 28 March 2022 to 3 April 2022 at the rate of $1,928. per week. (b) From 4 April 2022 to 1 May 2022 at the rate of $1,960 per week. (c) From 2 May 2022 to 19 June 2022 at the rate of $2,327.50 per week. (d) From 20 June 2022 to 26 June 2022 at the rate of $1,960 per week. (e) From 27 June 2022 to 3 July 2022 at the rate of $2,337.50 per week. (f) From 4 July 2022 to 25 September 2022 at the rate of $1,960 per week. (g) From 26 September 2022 to date and continuing in accordance with the provisions of the Act at the rate of $2,024 per week. 2. The parties have liberty to apply within 14 days in respect of the quantum of weekly compensation. 3. Award for the applicant in respect of a general order for the payments of s 60 expenses. 4. The liability for payment of the above awards be apportioned equally between the first and second respondents. 5. The second respondent to have credit for any payments already made.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (the Application), Mr Andrew Fraser Smith (the applicant) seeks weekly compensation and compensation for medical expenses in respect of injuries to his lumbar spine that are alleged to have occurred in the course of or arising out of employment with the two respondents in these proceedings.
On 21 July 2015, when employed by Acciona Ferrovial Joint Venture (the first respondent), the applicant injured his lumbar spine. There is no dispute that the applicant injured his lumbar spine on 21 July 2015. The first respondent was insured for the purposes of workers compensation (the first insurer) and the applicant has been paid compensation in the form of weekly benefits, medical expenses and lump sum compensation.
On 23 March 2022, the applicant injured his lumbar spine when employed by Coffs Harbour City Council (the second respondent). The second respondent was insured for the purposes of workers compensation.
The second respondent disputes that it is liable to pay compensation for the injurious event that occurred on 23 March 2022. The first respondent disputes that compensation for weekly benefits and medical expenses should be apportioned to it as a result of the injurious event that occurred on 23 March 2022.

ISSUES FOR DETERMINATION

The applicant seeks compensation for weekly benefits and medical expenses in these proceedings. By consent, the claim for medical expenses was amended to seek a general order for the payment of medical expenses.
There is no dispute that the applicant injured his lumbar spine on 21 July 2015 in the course of or arising out of his employment with the first respondent. He has been paid compensation in the form of weekly benefits, medical expenses and lump sum compensation by the first respondent as a result of that injury.
There is no dispute that the applicant injured his lumbar spine on 23 March 2022 when employed by the second respondent.
The second respondent disputes that it is liable to pay compensation for the injury on 23 March 2022 as the second respondent says that the applicant was on an unauthorised absence and/or was not on an ordinary recess when the injury occurred.
The first respondent disputes that compensation for weekly benefits and medical expenses should be apportioned to it as a result of the injury that occurred on 23 March 2022.
The above represents the issues for determination as articulated with the assent of counsel for each party at the conciliation/arbitration held on 9 August 2023. To the extent that the first respondent sought to raise other issues in dispute in their written submissions, to save repletion, I will deal with these in more detail below.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The matter came before the Commission for a preliminary conference on 1 May 2023 and the following directions were made:
“1.     The matter is listed for a conciliation/arbitration (con/arb) to take place before me by AVL at 10am 14 June 2023.
2.     The first respondent’s application for leave under section 289A adjourned to the con/arb.
3.     All late documents served pursuant to the directions below to be filed 3 days prior to the con/arb where the question of their admission into evidence will be dealt with.
4.     The first respondent to serve within 14 days any further IME report upon which it is proposed to rely.
5.     PIAWE agreed as between the applicant and first respondent as per the first respondent’s schedule.
6.      The applicant and second respondent to serve any further evidence in response to the IME report served by the first respondent as per order 4 above within a further 14 days.
7.     The second respondent to serve within 14 days any further statements upon which it is proposed to rely and the applicant to serve within a further 14 days any evidence in response.
8.     The applicant has leave to issue within 7 days a notice to produce on the second respondent and in the event any party seeks leave to rely on any documents so produced they are to file and serve copies 3 days prior to the con/arb where the question of leave will be dealt with.
9.     It is noted that apart from the application referred to in order 2 above, the dispute remains as per the dispute notices.
10.   It is noted that no party sought leave to issues directions for production.”
At the conciliation/arbitration on 14 June 2023 attempts were made to settle the matter which were unsuccessful. There had not been compliance with the notice to produce issued on the second respondent and nor had there been compliance by the second respondent with the timetable for the filing of further evidence as set out above. There is an explanation for their non-compliance in an affidavit provided by the solicitor for the second respondent and contained in their late documents. The parties agreed that the matter needed to be adjourned in order to do justice between the parties. It was adjourned with the approval of Principal Member Harris (because as per Commission requirements approval for the adjournment was sought) and directions were made as follows:
“A conciliation/arbitration was held on 14 June 2023 in which the Commission directed as follows:
1.With the approval being granted by Mr John Harris, Principal member, the matter is listed for a further conciliation/arbitration (con/arb) to take place before me by AVL at 10am 9 August 2023.
2.Within 2 days the second respondent refile the late documents dated 9 June 2023 which have been served.
3.Within 2 days, the second respondent to file and serve it’s response to notice to produce.
4.Within a further 14 days, the applicant to file and serve any evidence in response to the second respondent’s late documents as well as the documents produced by the second respondent in answer to the notice to produce issued upon it.”
On 9 August 2023 the arbitration proceeded and was recorded. The issues in dispute were read onto the record and each counsel had the opportunity to either demur or assent to the delineation of the issues and each counsel had the opportunity to be heard on whether any other issues were in dispute or whether they wished any other issues or matters to be noted on a preliminary basis.
The matter proceeded by way of oral submissions from counsel for the applicant and counsel for the second respondent and by consent the following directions were made for the filing of written submissions:
“A conciliation/arbitration was held on 9 August 2023 in which the Commission directed as follows:
· It is noted that the applicant and second respondent made oral submissions at the conciliation/arbitration. Due to the listing time being exhausted, the balance of submissions will be provided in writing and the following timetable shall apply:
(a)First respondent by 4pm 30 August 2023 (in view of their application that they have 21 days)
(b)Second respondent and applicant in reply by 4pm 6 September 2023.
(c)The second respondent to refile application to admit late documents dated 9 June 2023 which have been served and also emailed to me today (copied to the other parties) so that the hearing could proceed without delay.”
Written submissions were filed as directed.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission by consent and considered in making this determination:
For Mr Smith:
(a)    the Application and all attached documents, and
(b)    Applications to Admit Late Documents filed 8 June 2023 and 26 June 2023.
For the first respondent
(a)    Reply and all attached documents, and
(b)    Application to Admit Late Documents filed 6 June 2023.
For the second respondent:
(a)    Reply and all documents attached.
(b)    Application to Admit Late Documents dated 9 June 2023 tendered by email at the conciliation/arbitration and directed to be filed within three days of the conciliation/arbitration.

Oral evidence

Mr Smith did not seek leave to adduce oral evidence and neither of the counsel for the first and second respondents sought leave to counsel for did not seek to cross-examine Mr Smith.
None of the counsel sought leave to cross-examine the witnesses of the other parties.

FINDINGS AND REASONS

The applicant suffered injury to his lumbar spine on 21 July 2015 when employed by the first respondent and on 23 March 2022 when employed by the second respondent. There is no dispute that injury to the lumbar spine occurred on both dates.
There is no dispute that the applicant suffered injury to his lumbar spine in the course of or arising out of his employment with the first respondent on 21 July 2015. He came to spinal surgery (L3-L5 fusion) as a consequence of that injury. The first respondent ultimately paid for the surgery, paid weekly compensation (by consent for a period that ended prior to the surgery) and paid lump sum compensation for permanent impairment of the lumbar spine as a result of injury on 21 July 2015 in respect of 16% whole person impairment (WPI). The first respondent says it should not be liable to pay further compensation.
There is no dispute that the applicant injured his lumbar spine on 23 March 2022 when employed by the second respondent. However, the second respondent disputes that it is liable to pay compensation because the second respondent says that the applicant was not in the course of an ordinary recess when the injury occurred and/or the applicant was on an unauthorised absence when the injury occurred.
Depending on the liability findings, there is an apportionment dispute between the respondents.
The case must be determined on the evidence and in accordance with the law.
The applicable legislation includes s 4, s 9, s 11 and ss 22, 22A,B and C of the Workers Compensation Act 1987 (the 1987 Act) as follows:
4 Definition of “injury”
(cf former s 6 (1))
In this Act—
"injury" —
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a "disease injury", which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.
9 Liability of employers for injuries received by workers—general
(cf former s 7 (1) (a))
(1)     A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.
(2)     Compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment.
11 Recess claims
(cf former s 7 (1) (e))
If a worker on any day on which the worker has attended at the worker’s place of employment pursuant to the worker’s contract of service or training contract—
(a) is temporarily absent from that place on that day during any ordinary recess or authorised absence,
(b) does not during that absence voluntarily subject himself or herself to any abnormal risk of injury, and
(c) receives a personal injury during that absence,
the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.
22 Compensation to be apportioned where more than one injury
(1)     If—
(a) the death or incapacity of a worker, or
(b) a permanent impairment suffered by a worker as referred to in Division 4 of Part 3, or
(c) a liability under Division 3 of Part 3 to a worker,
results from more than one injury to the worker, liability to pay compensation under this Act is to be apportioned in such manner as the Commission determines.
(1A) Death, incapacity, loss or liability that results partly from one injury and partly from one or more other injuries is taken to have resulted from more than one injury.
(2)     Liability to pay compensation under this Act includes—
(a) the liability of an employer (including an employer who is a self-insurer), and
(b) the liability of an insurer under a policy of insurance in respect of the payment of that compensation (including a direct liability to the worker), and
(c) a liability in respect of a claim under Division 6 of Part 4, and
(d) in the case of a worker who is partially incapacitated for work, a liability that arises because the worker is entitled to be compensated under this Act as if totally incapacitated.
(3)     Liability to pay compensation under this Act is not to be apportioned by the Commission if the parties to whom the liability relates have agreed on the apportionment.
(4)     Liability to pay compensation under this Act may be apportioned by the Commission even though it is the liability of a single insurer in respect of different periods of insurance, but only if the employer or the Authority applies for such an apportionment.
(5)     The Commission may, on the application of any insurer or employer concerned or of the Authority, determine a dispute as to whether—
(a) liability to pay compensation under this Act should be apportioned under this section, or
(b) any such liability should be apportioned under this section in respect of different injuries.
The determination of the Commission has effect despite any agreement on apportionment if the application for determination was made by an employer (in the employer’s own right) or the Authority.
(6)     (Repealed)
(7)     A person who is liable to pay compensation under this Act is not entitled in any proceedings under this Act to a reduction in that liability by apportionment on account of the existence of any other person who is also liable to pay any part of that compensation unless that other person is a party to the proceedings.
(8)     This section applies to any liability arising before or after the commencement of this Act.
22A Further provisions concerning apportionment of liability under section 22
(1)     The apportionment of liability under section 22 is—
(a) in the case of the apportionment of liability between employers—to be on the basis of the relative length of the worker’s employment with each employer concerned (not including any period of employment after the last relevant injury was received), or on such other basis as the Commission considers just and equitable in the special circumstances of the case, and
(b) in the case of the apportionment of liability between insurers of the same employer—to be on the basis of the relative length of the employer’s period of insurance with each insurer concerned during which the worker concerned was employed by the employer (not including any period of insurance after the last relevant injury was received), or on such other basis as the Commission considers just and equitable in the special circumstances of the case.
(2)     (Repealed)
(3)     Liability may be apportioned under section 22 even if the liability has been discharged.
(4)     When liability to pay compensation is apportioned under section 22 between 2 or more persons, the Commission may order that the compensation is payable to the worker by one of those persons and that the other persons are to pay (by way of contribution) their apportioned share of that compensation to that person.
(5)     The person ordered under subsection (4) to pay compensation to the worker is to be—
(a) in the case of apportionment between employers—the employer who most recently employed the worker, or such other of the employers as the Commission considers reasonable in the special circumstances of the case, and
(b) in the case of apportionment between insurers—the insurer of the employer at the time of the last injury, or such other of the insurers as the Commission considers reasonable in the special circumstances of the case.
(6)     An order is not to be made under subsection (4) if the parties concerned have agreed as to the payment by one of them of the compensation concerned.
(7)     In this section a reference to an insurer includes a reference to a self-insurer and a reference to a period of insurance includes a reference to a period of self-insurance. A liability in respect of a claim under Division 6 of Part 4 is for the purposes of this section taken to be a liability of the insurer of the employer concerned during the period that is relevant to that liability.
(8)     In a case to which section 22 applies, if all of the insurers concerned (being either insurers of the same employer or of the different employers concerned) are insurers within the meaning of Division 4 of Part 7 and the entitlement of the worker (or other claimant) to receive compensation is not disputed—
(a) the compensation is (despite subsection (5)) payable by the last insurer or the last employer (as relevant to the case), with no apportionment of liability under section 22, and
(b) for the purposes of calculating an insurance premium payable by any of those employers, their claims histories are to be determined on the assumption that liability had been apportioned under section 22 (without the need for a determination of, or agreement as to, that apportionment).
(9)     The operation of section 22 is not to be limited because of the fact that it provides for liability to be apportioned rather than providing for payment of contributions.
22B Determination as to which injury gave rise to compensation liability
(1)     The Commission may, on the application of an employer (in the employer’s own right) or of the Authority, determine a dispute as to which injury, from among 2 or more alleged injuries, has given rise to a liability to pay compensation under this Act.
(2)     Such a determination may be made irrespective of any agreement and irrespective of whether the payment of any contribution is ordered under section 15 or 16 or any apportionment of liability is ordered under section 22.
22C Certain injuries not to be dealt with under sections 15 and 16
(1)     This section applies to an injury that is of a kind, or that occurs in circumstances, prescribed by the regulations for the purposes of this section.
(2)     The regulations may provide that either or both of sections 15 and 16 is or are not to apply to an injury to which this section applies and that instead section 22 is to apply to the injury.
(3)     The regulations may provide that section 15 (1) (a) or 16 (1) (a) is, for the purposes of all or specified provisions of this Act, to apply in respect of an injury to which this section applies.
(4)     A regulation made for the purposes of this section extends to apply to an injury that happened before the commencement of the regulation, but only if—
(a) death, incapacity, loss or liability as referred to in section 22 results from that injury and one or more other injuries, and
(b) at least one of those other injuries happened after the commencement of the regulation.
(5)     A regulation made for the purposes of this section does not (despite subsection (4)) affect any liability of an employer or insurer to pay compensation or a contribution, or any liability of an insurer to indemnify an employer, that arose before the commencement of the regulation, unless the Commission otherwise orders.

Turning to an examination of the evidence.
The applicant gave evidence in three statements to be found in the application and the late documents application.
It is not disputed that his lumbar spine was injured whilst employed by the first respondent. He came to spinal fusion (L3-L5) as a result of that injury which was ultimately paid for by the first respondent.
He left employment with the first respondent.
On 15 April 2019, the applicant was employed on a full-time basis by the second respondent. He was employed as a Project liaison Officer. However, in addition to this role, he was fairly quickly appointed to an additional role on their Emergency Management Team (EMT). It is not in dispute that this was an on-call role which required that he be on call 24/7.
Due to the dual nature of his roles, it is clear from the evidence that Mr Smith has given and that given by his supervisors, that he had different supervisors for the two different roles he was performing. He gave evidence in his statement dated 23 June 2023 as follows:
“4. My duties as a Project Liaison Officer took up approximately 50% of my time. The remainder was taken up in my role on the emergency Management team, In my role on the Emergency Management Team I answered directly to Michael Raby.
5. At the time of my accident I answered to Tom Handle as my immediate superior officer and Michael Raby as my ultimate superior in the sustainable infrastructure directorate. Michael Raby was Tom Handel’s superior officer, I did not report in any way to Murray Watson.”
The applicant gave evidence that it was common practice for he and indeed other council employees to leave the office to move their car because of the strict parking limits in the Coffs Harbor Central Business District (CBD) near to council chambers. He gave evidence that this practice was known to the second respondent. The second respondent denies that this practice was either known or authorised.
The applicant gave evidence that as he was required to be on call 24/7, he needed to use his private car and as it was difficult to obtain a council car (known as the pool cars) during the day and particularly given the nature of both his roles, the use of his private car for work purposes was essentially a practical necessity. But he could not park in the council building and street parking near the office was time limited. He gave evidence that he needed the car to be parked nearby because the nature of his role was that he had to respond promptly to community concerns and EMT issues. He gave evidence that he would park his car near to the office and move his car throughout the day so as not to the breach street parking regulations. He also gave evidence that due to the pandemic and risks associated with COVID he was more comfortable using his own car.
On 23 March 2022 the applicant had driven his private car to work. He parked in street parking which was time limited. During the work day, the applicant left the second respondent’s premises for the purpose of moving his car from one parking spot to another. Whilst crossing the street he rolled his ankle on a seed pod and it is not in dispute that he suffered injury to his lumbar spine as a result.
He returned to the office and informed his supervisor Mr Tom Handel.
The applicant says that he was injured in the course of an ordinary recess and/or his absence was authorised by the second respondent.
The second respondent disputes that the applicant was injured in the course of employment because he was not on an ordinary recess and/or his absence was not authorised.
The second respondent relies on the evidence given by the applicant’s direct supervisor Mr Tom Handel.
Mr Tom Handel gave evidence in a statement dated 26 May 2023.
He gave evidence that he was the applicant’s direct supervisor at the time of injury.
I note he was the applicant’s supervisor (he held the role of Acting Section Leader for the Project Delivery Team from February 2021 until June 2022) in the applicant’s capacity as Project Liaison Officer.
He gave evidence: (emphasis in original)
“...that the availability of a staff member’s personal vehicle within a reasonable distance of the office is not a requirement expected or induced by Council. If an employee needs a vehicle for a job, they are required to use a Council pool vehicle.”
Mr Handel went on to give evidence:
“I can confirm that Council does not provide unfettered authorisation to Council employees to leave the office to move their personal vehicles whilst performing their duties. On 23 March 2022 I was unaware that Andrew Smith had left the office to move his personal vehicle until such time as he returned and informed of an incident causing injury to his ankle. As far as I can recall he told me that he rolled his ankle.
I understand that Andrew Smith in his statement evidence has claimed that he had to park in close proximity to Council because his role required him to leave he office and attend various locations straightaway and without delay. As such he believed that he had to have his car on hand. Again, I can indicate that there is access to pool vehicles, parked in Council’s car park. Indeed I questioned Andrew after he had told me about his incident including why he was moving his own car, bearing in mind there were available pool vehicles under Rigby House. From memory, he said that there might be a need for him to leave the office. I reminded him that he should not be using his personal car for such jobs, considering the pool vehicles were to be used.
I don’t recall Andrew Smith complaining that there was an unavailability of shared vehicles within council, forcing him to use his personal vehicle for work. In my experience toy can always find a council car.
I don’t recall Andrew Smith ever approaching me and informing me that he had a fear of contracting COVID 19 directly as a result of shared vehicle, necessitating him using his own personal vehicle.”
I note that despite Mr Handel being the applicant’s direct supervisor in the applicant’s capacity as a Project Officer, Mr Handel says nothing about his awareness that the applicant was also seconded to the EMT.
Mr Murray Watson gave evidence in a statement dated 15 May 2023. Mr Watson does not have a supervisory role in regard to the applicant. He gave evidence about the availability of the second respondent’s pool vehicles and availability of untimed parking in the CBD.
Mr Watson gave evidence that the second respondent has a range of vehicles available for employees use which are booked by an online booking system. There are ‘leaseback’ vehicles which are purchased by council for council use and leased back to employees for their private use. The leaseback cars are for shared use and are available for business functions by other staff members during the working day. There are also ‘pool’ vehicles available for employees use. He notes:
“It is essential that the pool vehicles are returned to council’s car park at the end of each day, There are limited reasons for people to have a pool vehicle for overnight use (for instance, when a person might have an early morning appointment outside Council).”
He goes onto give evidence that he is not aware of any complaints about lack of availability of council cars and it is his experience “that there is more than a sufficient number of shared vehicles to enable the reasonable execution of all work related requirements”.
He went onto give specific evidence about the number of vehicles available on the day of injury 23 March 2022 (as per an attached spreadsheet) as follows: (emphasis in original)
“On 23 March 2022 Council had a total of 41 vehicles available for use by its employees. Of those vehicles there were a total of 25 available all day, 6 vehicles which had been partially booked throughout the day and 10 vehicles booked for the entire day.”
He went onto give evidence:
“The availability of an employees personal vehicle within a reasonable distance of the office is not expected by Council. I can confirm that Council does not have any policies or procedures which mandate for employees to have their personal vehicles located within a reasonable distance from the office for the purposes of duties.”
He gave evidence that his enquiries within the organisation confirmed that employees were not given permission to leave the office (only) to move their vehicles. He said this would be an unworkable arrangement as staff would be leaving the office every one to two hours and council would not permit this to occur.
He gave evidence referring to an attached map that there are untimed parking spaces available within the CBD.
He summarised his evidence as follows:
“To conclude, there were shared vehicles available for use by staff. Staff were expected to utilise council vehicles and were not encouraged nor induced to use their own cars. In this situation, Andrew Smith made the choice to use his own vehicle and it should not have been parked in a position in which he did not need to frequently leave the office to move it. Although he said he needed to leave the office immediately to respond various sites, it is obvious from the attached map there is ample untimed parking within walking distance from the office available to the public, including council staff members.”
The evidence of Mr Watson and Mr Handel has been effectively traversed by the evidence of Mr Michael Raby who has given evidence in the applicant’s case in his statement dated 22 June 2023.
Mr Raby gave evidence that he is the former Director of Sustainable Infrastructure for the second respondent. He was employed by the second respondent until his retirement on 30 June 2022. I note the subject injury occurred on 23 March 2022 and so is within the time Mr Raby was employed. Mr Raby gave evidence about his position as the superior of those witnesses who have given evidence in these proceedings as follows:
“As Director I was the subperiod officer of the applicant Andrew Smith and of Tom Handel and Murray Watson who have provided statements for Council’ Application to Admit late documents dated 9 June 2023.”
Mr Raby gave evidence about the dual nature of the applicant’s role and the travel requirements imposed on the applicant.
Mr Raby gave evidence about the nature of the applicant’s Project Liaison Officer role:
“The nature of this role necessarily involved significant travel to meet with the community throughout the entirety of the Coffs Harbour Local government are.
It was not uncommon that Andrew’s meetings with community regarding projects took place out of normal working hours and off site from his workplace at Council’s Rigby House in the CBD area of the city.”
Mr Raby went onto give evidence that he appointed the applicant to the EMT role as follows:
“Based on Andrew’s people skills as described, I drafted Andrew as a member of council’s Emergency Management Team who could thence be seconded from his substantive role (project support) as and when required at short notice. The team contained myself, Andrew and one other.
In that capacity Andrew and myself were members of the Coffs Harbour LEMC.”
Mr Raby gave evidence that the EMT role required the applicant to be on call 24/7 as follows:
“In the emergency management role Andrews duties were necessarily less well defined and more reactive and unplanned than those in his project support role as the requirement to respond was effectively 24 hours per day and 7 days per week.”
Mr Raby went onto give evidence about the intensity of the EMT role for the applicant in the period from December 2019 (when the Coffs Harbour area was faced with bushfires, flood, tornado and hail storm emergencies)) until Mr Raby left the second respondent on 30 June 2022. He gave evidence:
“During the period from December 2019 until I left the Council in June 2022 a very significant component of Andrews workload which I would assess at as much as 50% of his daily effort was directed at emergency management work in support of the Coffs Harbour LEMC or myself as LMEO.
During that same period the Coffs Harbor local government area was subjected to an intensive period of almost constant emergency response and recovery requirements.
Beginning in December 2019 with a significant bushfire emergency which destroyed 40 structures, followed by four declared flood emergencies, a highly destructive hailstone/tornado emergency, a train derailment and the Covid-19 pandemic.
On each of these occasions Andrew was involved in the initial emergency response phase and in all cases Andrew was the principal leader of the resultant disaster recovery phases.
In particular each disaster recovery phase during the 2019 to mid 2022 period, required Andrew to meet directly with disaster affected community members, in the first instance , to collect an report their recovery needs and to then assist in co-ordinating the activities of both NSW government agencies and volunteer disaster recovery agencies such as Redcross and Blaze Aid in delivering the individual’s recovery needs across the Coffs Harbour local government area.”
Mr Raby gave evidence about the after-hours nature of the role for the applicant:
“The nature of this role made it necessary for Andrew to meet with often traumatised parties at a time and place of their choosing. I am aware, because I was also in attendance at some of these meetings, that this required Andrew to meet with affected community members at their properties, often out of hours, often at night and often on weekends.”
Mr Raby went onto give evidence that he considered that the statements of Mr Tom Handel dated 26 May 2023 and Mr Murray Watson dated 15 May 2023 and tendered in the second respondent’s case, “are at risk of not giving a complete, total or comprehensive picture which recognises the realities of Andrew’s work requirements or the actual accessibility of Council pool vehicles.”
Mr Raby gave evidence that the council records show that on any given day approximately 40 council pool vehicles were “theoretically” available for shared use by council employees.
However, Mr Raby goes on to give evidence about an important qualification on the availability of the pool vehicles as follows:
“What I consider is not demonstrated in the AALD materials is that 92.5% (or 37 out of 40) of those vehicles are personally leased by employees and which are for all and intents and purposes their personal private vehicles outside of normal working hours because they are driven to work and then taken home from work each day by the leasing employee.
At best those vehicles can be utilised as pool vehicles only during normal working hours on Monday to Friday and that severely limited their accessibility in light of Andrew’s particular work circumstances and his significant out of normal work hours requirements because of the ongoing intensity of our disaster recovery efforts.”
Mr Raby goes onto give evidence, consistent with the applicant’s evidence, that he was aware that the applicant was using his own vehicle for work purposes and that Mr Raby had in fact expressed a preference to the applicant that he use his own private vehicle and he explains the reason behind this as follows:
“None of those vehicles could genuinely be considered as available for Andrew’s or any other party’s use before generally 9.00am or after 4.00pm Monday to Friday; nor could they be considered as available for Andrew’s use at any time of a Saturday, a Sunday or a public holiday for example.
The remaining three vehicles (utility vehicles) are garaged in Council’s Rigby House secure underground parking basement, to my knowledge these there vehicles are not generally considered ‘take home’ vehicles and are expected to be secured each night in the secure carpark at Rigby house.
Andrew’s emergency management burden during the 2019-mid 2022 period required him to attend to off-site disaster recovery related meetings with affected community often outside of normal working hours.
During this period I was aware that Andrew used his personal vehicle for work purposes especially in relation to his emergency management duties.
I had made some preliminary efforts within council to formally create a more accessible work vehicle arrangement for Andrew but had been unsuccessful in doing so.
It was therefore my preference which I expressed directly to Andrew, that he utilise his personal vehicle to travel directly from his home to out of normal hours meeting and then return directly home rather than utilise a pool vehicle.”
Mr Raby gave evidence that he expressed the same preference (that the applicant use his own private car) regarding off site meetings which might commence during work hours but would finish after hours.
He gave evidence that he expressed this preference that the applicant utilise his own private vehicle rather than a pool vehicle because the alternative was unnecessarily onerous and exposed the applicant to unnecessary risk as follows:
“I considered that alternative to be overly onerous, wasteful of Andrew’s already compromised free time because it would cause him to work or drive more hours than needed and would needlessly increase Andrew’s exposure to incident or burnout.”
Mr Raby went onto give evidence as follows:
“In further relation to the statement and council records attached to the AALD I would agree that it was generally council preference that council pool vehicles be used instead of personal vehicles for work related travel. However that preference did not take account, recognise nor address Andrew’s particular work circumstances.
I am not aware of any council policy or directive that prohibits council staff from using their personal vehicles in the conduct of their council duties and it was in consideration of this that I developed my view on the matter regarding my support for Andrews use of his private vehicle in his particular work circumstances which were not common amongst other staff.”
Mr Raby went on give evidence about his awareness that Andrew and other staff moved their vehicles during the work day because of parking restrictions:
“In further relation to the statement and council records attached to the AALD my experience is that it was and remains a very common practice for staff, including Andrew, when they do have cause to park their private vehicles in the vicinity of Rigby house to have to move their vehicles due to the time limited parking restriction across most of that area and the penalties for over staying the time limits.
The Rigby house secure underground car park is available for free long term parking but is restricted for use by certain staff positions which did not include Andrew.
I am aware that CHCC parking inspectors were and continue to be very diligent in the execution of their particular duties across the whole CBD area including the parking areas adjacent to Andrews work pace at Rigby house.”
In summary, Mr Raby, as the applicant’s ultimate supervisor and his direct supervisor on the EMT role (which accounted for 50% of his employment duties) gave evidence entirely consistent with the applicant’s evidence – namely he was aware the applicant used his private car for work purposes, the inherent demands of the EMT role in particular with its out of hours component were such that as a practical reality it was necessary for him to use his private car, that the theoretical availability of 40 council pool vehicles did not match the reality of the demands of the applicant’s role particularly from 2019 to mid 2022 when the Coffs Harbour area was inundated with disasters which required EMT response, and that as his supervisor Mr Raby encouraged the applicant to use his own vehicle and he was aware that when the applicant parked near his workplace (so the car was close by if he needed to respond quickly to a call out) the applicant left the office to move his car because of CBD parking restrictions.
When I weigh all of the evidence in the balance, I prefer the evidence of the applicant supported by the evidence of his ultimate supervisor Mr Raby, that he was using his car for work purposes in the period from 2019 to up to and including the date of injury (23 March 2022) with the acquiescence, knowledge and indeed encouragement of his ultimate supervisor Mr Raby, as agent for the second respondent. It was known to the second respondent that the use of the private car, meant in the context of the parking restrictions in the area immediate to the office, that the applicant left the office to move his car throughout the days.

I am satisfied on the balance of probabilities that when the applicant suffered injury to his lumbar spine (which is not disputed) when he left the office to move his car on 23 March 2022 he was in the course of or arising out of his employment, was on an ordinary recess and was not on an unauthorised absence.
Accordingly, the second respondent is liable to pay compensation as a result of injury on 23 March 2022.
As to medical expenses it was agreed that a general order would follow any liability finding in the applicant’s favour.
As to the claim for weekly compensation, the applicant submitted that he has no current work capacity.
The second respondent made submissions that the applicant had no current work capacity.
The applicant made submissions in reply essentially that the applicant had no current capacity for employment for all relevant periods of the claim as follows (emphasis in original and footnotes omitted):
“The Applicant presses his original submissions as to capacity and notes that the statutory task that is required with respect to an assessment of compensation under section 36, 37, 33 and 32A of the 1987 Act. In terms of the concept of residual earning capacity and the provisions of section 32A of the 1987 Act, the Applicant refers the Arbitrator to Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPFD 55; Hume v CSR Ltd [2015] NSWWCCPD 7; Broadspectrum Australia Pty Ltd v Skiadas [2016] NSWWCCPD 34.
The Member will note that the schedule 3, clause 9 of the 1987 Act contains the definition of ‘current work capacity’ and ‘no current work capacity’, providing in respect of no current work capacity:
(2)An injured worker has ‘no current work capacity’ if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment.
Section 32A sets out the task to be undertaken when considering whether a worker is capable of engaging in ‘suitable employment’ for which the worker is currently suited:
(a)having regard to—
(i)the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker's age, education, skills and work experience, and
(iii)any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)such other matters as the Workers Compensation Guidelines may specify.
In claims for weekly compensation as a starting point one needs to consider if the applicant has ‘no current work capacity” or a “current work capacity”. In Wollongong Nursing Home Pty Ltd v Dewar Roche DP explained how the determination of an injured worker’s entitlement to weekly compensation differed after the 2012 amendments and that care needed to be taken when relying on older authorities. This is because section 32A of the 1987 Act eliminates a consideration of whether work is ‘available’ and whether it is ‘of a type or nature that is generally available in the employment market’
However, as Roche DP pointed out the first question to ask is whether a worker has a ‘current work capacity’ or ‘no current work capacity’. As he explained at [47]:
‘A ‘current work capacity’ is an ‘inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment’. The suitable employment referred to is not restricted to light duties performed for the respondent employer, which may or may not be suitable employment. It is suitable employment as defined in s 32A. ‘No current work capacity’ exists when the worker is not able to return to work either in the worker’s pre-injury employment or in suitable employment.’
In Dewar Roche DP found at [58]:
‘‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’ (emphasis added).’
In Graden Bathrooms Pty Ltd v Workers Compensation Nominal Insurer [2020] NSWWCCPD 36 Deputy President Snell held:
‘The Presidential decision in Wollongong Nursing Home Pty Ltd v Dewar is regularly applied in the Commission, dealing with issues regarding whether or not workers are ‘able to return to work in suitable employment’ within the meaning of s 32A of the 1987 Act. In that matter Roche DP said:
‘Therefore, the determination of whether a worker is ‘able to return to work in suitable employment’ is not a totally theoretical or academic exercise and Mason P’s reference to the ‘eye of the needle’ test may still be relevant in many cases. To use his Honour’s example, a labourer who is rendered a quadriplegic may well be able to perform tasks using only his voice. However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment [in s 32A]. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.’
And:
‘Thus, the task requires the identification of whether there are any ‘real jobs’ (Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at [102]) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are ‘available’ (to the worker) or are ‘of a type or nature that is generally available in the employment market’.(emphasis added)
The short point is that whether a worker has an ability to return to work in suitable employment depends on whether there are real jobs in the labour market in which the injured worker would be able to work. If there are not, then an injured worker will not have current work capacity.
The medical evidence suggests that the Applicant has ongoing significant physical restrictions which render him unable to engage in any work for which is suited by reference to employment history, training and experience. Moreover, the physical restrictions that were initially placed upon the Applicant and remain in place by his general practitioner unfit were such that no real job in accordance with section 32A was available to him rendering him with no current work capacity.
Accordingly, the full payments of weekly compensation made to date were, and remain, appropriate having regard to statutory definition.”
I have to consider all of the evidence before me. I am persuaded by the applicant’s submissions. I note that the second respondent did not obtain its own independent opinion. The general practitioner Dr Martyn’s certifications have restrictions that remain such that the applicant effectively remains unfit for all relevant periods of the claim. I note there has been no vocational assessment arranged by the second respondent to assist a return to work. I am not satisfied on the balance of probabilities that the applicant has the ability to obtain suitable employment in accordance with section 32A and I am satisfied on the balance of probabilities that he has no current work capacity.
When I weigh all of the evidence, I am satisfied on the balance of probabilities that for all relevant periods of the claim that the applicant had no current work capacity and an award for weekly compensation should be made in his favour under s 37 of the Workers Compensation Act 1987 (1987 Act) as sought.
The applicant referred me to page 183 of the application as to the orders sought in terms of quantum of weekly compensation. I will accordingly make orders in accordance with the schedule appearing 183 of the application as I understand there was no real demur to this schedule if the applicant was found to have no current work capacity. The parties will have liberty to apply in respect of the quantification of the weekly compensation so ordered.
Accordingly there will be an award for the applicant under section 37 of the 1987 Act as follows:
(a)    From 28 March 2022 to 3 April 2022 at the rate of $1,928 per week.
(b)    From 4 April 2022 to 1 May 2022 at the rate of $1,960 per week.
(c)    From 2 May 2022 to 19 June 2022 at the rate of $2,327.50 per week.
(d)    From 20 June 2022 to 26 June 2022 at the rate of $1,960 per week.
(e)    From 27 June 2022 to 3 July 2022 at the rate of $2,337.50 per week.
(f)    From 4 July 2022 to 25 September 2022 at the rate of $1,960 per week.
(g)    From 26 September 2022 to date and continuing in accordance with the provisions of the Act at the rate of $2,024 per week.
There will of course be an order that the second respondent have credit for any payments already made.
Now turning to the question of the extent, if any of the first respondent’s liability to pay compensation and any apportionment between the respondents.
Counsel for the first respondent submitted:
·        the resolution reached between the applicant and the first respondent in 2017, confirmed in a certificate issued pursuant to s 294 of the Workplace Injury Management and Workplace Injury Act 1998 (NSW) (1998 Act), should not be set aside;
·        that, in relation to the claim for weekly compensation, no total or partial incapacity results from any injury with the first respondent as required by s 33 of the 1987 Act;
·        that the proposed medical and related treatment claimed is not reasonably necessary or related to any injury with the first respondent as required by ss 59 and 60 of the 1987 Act;
·        in the alternative, that the Commission ought to make findings pursuant to s 22 of the 1987 Act, and
·         in the alternative, that the Commission ought to make findings pursuant to s 46 of the 1987 Act, in order to prevent the dual payment of weekly compensation.
The first respondent began its submissions by addressing a background history of back pain prior to the applicant’s injury in its employ on 21 July 2015. However, the fact is that in these proceedings injury to the lumbar spine on 21 July 2015 is undisputed. The applicant came to fusion surgery at L3-L5 on 15 August 2016. The first respondent paid weekly compensation and ultimately paid for the fusion surgery and have paid lump sum compensation.
The first respondent conveniently sets out this history of compensation paid by the first respondent as follows:
“•      In relation to weekly compensation, the parties agreed that there would be an award for the first respondent (ie, the applicant would not receive payments) from 14 May 2016 (13 May 2016 determination issued pursuant to s 294 of the 1998 Act, ARD page 24; 1 November 2017 determination issued pursuant to s 294 of the 1998 Act, ARD page 36). Therefore, by agreement between the parties, the applicant did not receive weekly compensation for any of the three-month period before he had the August 2016 operation, or at any time afterwards.
·        In relation to medical and related treatment expenses, the first respondent agreed to pay an amount up to $35,000 on production of receipts, with an award otherwise for the first respondent (1 November 2017 determination issued pursuant to s 294 of the 1997 Act, ARD page 36).
·        In relation to permanent impairment (for which no claim is made in the present proceedings), the matter was referred to an Approved Medical Specialist (ARD page 36). The decision of the Approved Medical Specialist was appealed (by the applicant), and a Medical Appeal Panel confirmed the decision (19 April 2018, from ARD page 38). As a result of these decision the first respondent paid the applicant a lump sum of $16,170. No appeal from this decision is available: s 327(7) of the 1998 Act; see too Sleiman v Gadalla [2021] NSWCA 236
[73]-[84], per Leeming JA.”
The first respondent is seeking to argue that the applicant is essentially estopped from seeking weekly compensation or compensation for medical expenses as a result of the orders made by consent between the applicant and the first respondent on 13 May 2016 and 1 November 2017 and that these orders would need to be set aside in these proceedings for an award to be made against the first respondent and they should not be so set aside. The issue of estoppel did not form part of the dispute notices, did not form part of the s 289A application articulated in the first respondent’s Reply (and in fact never agitated by counsel for the first respondent), and is objected to by both the applicant and the second respondent on the basis that this argument was never agitated by the first respondent at either conciliation/arbitrations held on 13 June 2023 or 9 August 2023. When the arbitration commenced on 9 August 2023 the issues in dispute between the parties were clearly articulated and the first respondent (as were the other parties) were given a very clear opportunity to assent or otherwise to the recitation of the issues and to add any application they wished to make, The issue involving the first respondent was articulated to be one of apportionment only should the second respondent be held to have liability. I have to balance the interest of all parties and consider whether it is in the interests of justice to allow the first respondent to argue matters that were either not the subject of a dispute properly notified, and/or not raised in the Reply and/or not raised in discussion at the conciliation/arbitrations despite the first respondent having the opportunity on each occasion to raise or make any application of concern to them, or make any application or note or raise any issue in dispute.
The applicant and the second respondent objected to the above issues, apart from apportionment, being raised by the first respondent and in this regard the applicant made the following submissions with which the second respondent joined, as follows:
“The First Respondent relies on the award for weekly compensation benefits made in its favour pursuant to Matter no WCC001410/16, on 13 May 2016 by the Workers Compensation Commission (as it then was), and from 14 May 2016 onwards. The award was confirmed in orders under Matter no. 004712.17, issued on 1 November 2017 by the Commission.
The First Respondent says, in relation to alleged incapacity claimed by the applicant from 23 March 2022 onwards, that no total or partial incapacity results from any injury with the first respondent as required by section 33 of the 1987 Act.
The First Respondent submits that the proposed medical and related treatment claimed is not reasonably necessary or related to any injury with the First Respondent as required by sections 59 and 60 of the 1987 Act.
The First Respondent submits that the Commission ought to make findings pursuant to section 22 of the 1987 Act, as more than one injury has occurred which would create a liability pursuant to Division 3 of Part 3 of the 1987 Act (which the First Respondent denies should be so apportioned to it).
The First Respondent submits that the Commission ought to make findings pursuant to section 46 of the 1987 Act, in order to prevent the dual payment of weekly compensation benefits and in the event that any liability for weekly compensation benefits is determined to accrue to the first respondent (which is denied).
On 1 May 2023 the matter proceeded for telephone conference before the Member at which time the issue of the additional matters purported to be raised in the First Respondent reply was addressed with the Member directing:
The First Respondent’s application for leave under section 289A adjourned to the con/arb.’
On 9 August 2023 the matter came before the Commission for conciliation/arbitration and no application was made by the first respondent with respect to s 289A to amend the prior notice of dispute or raise new matters. At the commencement of the arbitration process the matters in dispute between the parties were addressed by the Member with the agreement of the parties. The following matters were agreed to be determined as follows:
·Not disputed that the suffered the injury as alleged by the second respondent, the issue is whether the applicant has a compensable injury by reason of s 11 and/or s 4. The second respondent alleges he was not on an authorised break or ordinary recess.
·Capacity remains in issue.
·No dispute that a general order for s 60 expenses should flow.
·There is a question of apportionment between the first and second respondents in the event that the second respondent is not successful on the liability question.
·The second respondent seeks an award for the second respondent on the claim.
The first respondent’s counsel was directly asked by the Member whether the first respondent wished anything further noted or raised in respect of the dispute to which the first respondent’s counsel answered a clear ‘no member’. Accordingly, the applicant agreed to proceed first in his submissions and addressed his case on that basis.
The attempt now for the first respondent to seek to argue matters that were not in dispute and not otherwise raised prior to the commencement of the arbitration is strenuously opposed and objected to. The matter was dealt with on the basis of the disputes as clarified and the applicant is now prejudiced by having to meet a case in reply that was otherwise not raised and which raises significant issues which ought to have been first raised by the first respondent
It is trite law that if a respondent seeks to rely on a defence or otherwise dispute matters in proceedings it ought to so in clear and unambiguous language. Making general denials of entitlement to compensation is not sufficient an insurer seeking to raise a dispute must do so by way of a s 78 notice providing clear and unambiguous language as to the reasons for the denial pursuant to s 78 of the 1998 Act. As was stated by Keating P in Woolworths Ltd v Meake [2011] NSWWCCPD 13 at [55] pursuant to the Guidelines the then s 74 notice must relevantly:
·precisely identify, in plain language, in the body of the document, the issue(s) in dispute AND, in respect of each issue, the insurer’s reasons for disputing liability;
·identify the sections and, if necessary, the sub-sections of the legislation on which the insurer relies that are relevant to the issues in dispute, and
·have attached to it any documents, medical reports, investigators’ reports, etc relevant to the claim.
Where a matter has not been properly notified as disputed in a s 78 notice, leave is required pursuant to s 289A(4) of the 1998 Act by reference to a determination of whether to so was “in the interest of justice”. That approach is to be undertaken on the basis outlined in Mateus v Zodune Pty Ltd (t/as Tempo Cleaning Services) [2007] NSWWCCPD 22, confirmed in City Council v Ardunca6.
That was the course that ought to have been taken by the first respondent here in the event that additional matters were to be raised over and above those notified in its s 78 notice and otherwise agreed between the parties at the conciliation/arbitration.
Significant issues would have been ventilated in the event that the first respondent made an application pursuant to s 289A of the 1998 Act to raise an estoppel argument. That is made good by reference to the submissions that are now sought to be made by the first respondent with respect to the purported intention and agreement previously reached in respect of a different claim and, moreover, what was said to be ‘known’ by the parties at that time. Moreover, the Reply document ‘amendment’ does not even rise as high as the case now sought to be put by the respondent.
The applicant objects to these matters now being raised.”

I am in agreement with the submissions of the applicant and the second respondent in this regard. I am accordingly not satisfied that it is in the interests of justice, that leave should be granted for the first respondent to raise and agitate any issue apart from that of apportionment.
In the event I am wrong in this, the orders previously made between the applicant and first respondent about weekly compensation or indeed medical expenses cannot bind the parties for the future. I note in any event there was subsequent issue of a Medical Assessment Certificate (upheld on appeal) that the applicant has a 16% WPI of his lumbar spine as a result of injury on 21 July 2015. And whilst impairment does not equate to incapacity, what it does mean is that the applicant has suffered permanent impairment as a result of injury with the first respondent. To suggest as submitted that it should be taken into account that the first respondent is at risk of being liable every time the applicant falls, is a submission without merit. If disputed, then its liability for any falls in the future will be determined on the evidence and in accordance with the law.
Turning to a consideration of the medical opinions on this issue. All of the parties have had the opportunity to obtain expert opinion on this issue. The second respondent did not obtain the opinion of an independent medical expert (IME). The second respondent relied on the opinion of Dr Martyn, the applicant’s GP, as to apportionment.
All of the medical experts have taken histories consistent with the other evidence, have considered the radiological investigations and examined the applicant.
Dr Hopcroft qualified on behalf of the applicant provided reports dated 16 August 2022 and 16 November 2022.
In his reports, Dr Hopcroft examined in careful detail the history and the radiological investigations.
In his report dated 16 November 2022, Dr Hopcroft opined as to a 50/50 apportionment with the following reasoning:
“Carefully perusing the injury he suffered on the 23 March 2022 when in the employ of Coffs Harbour City Council the CT Scan undertaken thereafter on the 9 May 2022 shows he suffered a significant strain injury to the L2/3 segment and has either incurred or seriously aggravated the ‘spondylolisthesis and spondylolytic change’ that is now causing him his significant back pain.
There is no question that your client’s employment with the Coffs Harbor City Council was the substantial contributing factor to the alleged injury on the 23 March 2022 and more than likely incurred strains at the L2/3 intervertebral disc space which has caused the instability and the patient’s ongoing and significant pain. That injury with the Coffs Harbor City Council consists of an aggravation and acceleration of the patient’s previous and significant lumbar spondyoltic problems that led to his long segment fusion from L3 to S1 performed by the said neurosurgeon Dr Sui. I believe that aggravation is ongoing and the patient therefore is a candidate for the further neurosurgical intervention arising from that injury which is superimposed on the previous significant injury that led up to his L3 to S1 fusion.
The patient is manifesting the inevitable ‘ladder climb’ of neurosurgical intervention on damaged lumbar vertebrae, that is to say, having suffered a congenital fusion of L5/S1this patient was suffering from increased forces on his proximal lumbar intervertebral discs and therefore suffered the L4/5 injury previously that triggered his first major neurosurgical intervention. Having undergone fusion thereafter from L3 to S1 significant increased forces were operating on L2/3 and he was at extreme risk of the injury that he suffered when he tripped on the pinecone jarring his back significantly. With the patient agreeing to progress to the next neurosurgical intervention he must be made well aware that his motivation to lead a very active life will have to be considered and downgraded even if the next neurosurgical intervention is successful he is at risk of even lesser strains causing further significant pathology which may well render him increasingly incapacitated and I believe he will no doubt be considered further surgery even then. He will be far wiser to downgrade his activity program and undertake an intensive conservative management program should that improve his current pain syndrome decide if he should postpone the offered neurological intervention currently considered before progressing with it.
I believe it can reasonably be assessed that the work injury he suffered previously with Acconica Ferrovial Joint venture and the injury with Coffs Harbour City Council have each contributed 50% to the patient’s current significant lumbar spinal incapacity and need for his neurosurgical procedures.”
Dr Martyn, the applicant’s general practitioner, provided an opinion in a report dated 20 July 2022 as to an apportionment of 70% to the 2015 injury and 25% to the 2023 injury. He made this apportionment on the basis that both injuries were contributing to the applicant’s pain:
“Both injuries, in 2015 and 2022 have contributed to Mr Smith’s pain. An estimate of percentage cause in my opinion would be 70% from his injury 2015 injury and 30% related to his 2022 injury”.
Dr Kinzel, qualified on behalf of the first respondent, provided two reports dated 24 March 2023 and 18 May 2023.
Dr Kinzel in a report dated 24 March 2023 opined as follows:
“I anticipate that the second incident caused him to become painful in the degenerative changes which were already existing in his lumbar spine”.
However Dr Kinzel considered that “it remains difficult to determine” if the existing degenerative changes “would have led to the required surgery, or if the incidents have made his degenerative changes painful”.
However I note that Dr Kinzel did express agreement with Dr Hopcroft that the long segment spinal fusion (after the 2015 injury) can cause weakening in the adjacent segments and that the 2022 injury has then aggravated these. In his report dated 24 March 2023, Dr Kinzel stated:
·        “Mr Smith suffers from the effects of having to undergo two surgeries following two work-related incidents. Mr Smith underwent further surgery in the form of a laminectomy above the fusion site. This is related to his previous injury.”
·        “At that stage, Mr Smith was status post L3-L5 fusion. It is well known that the levels above and below after spinal fusion do start to degenerate and can cause problems in the future. I anticipate that the second incident caused him to become painful in the degenerative changes which were already existing in his lumbar spine.”
·        “It is well known that spinal fusion causes some of the levels above and below to degenerate. I therefore do agree with the opinion of Dr Hopcroft and Dr Siu that he has sustained further degeneration which were accelerated by the previous fusion.”
Despite his clearly expressed support for the opinions of Dr Hopcroft and Dr Siu on the issue of the prior fusion causing degeneration at the adjacent segments and that it these resultant degenerative changes that have been aggravated by the 2022 fall, in a further report dated 18 May 2023, Dr Kinzel concluded, without adequate explanation in light of the above comments in his first report, that the first respondent should be responsible for the first surgery and the second respondent for the second surgery performed after the 23 March 2023 injury.
The first respondent submitted that any apportionment of liability to it be in the order of 10%. I do not find there is adequate support for such an apportionment when I weigh all of the evidence in the balance before me, noting that there is also no expert medical opinion before me that supports such an apportionment.
When I weigh all of the evidence in the balance, including the history of injury and the employment histories and the surgical histories, as well as the opinions of the treating doctors (Dr Sui and Dr Martyn) and the IME Dr Hopcroft and Dr Kinzel, I consider that a 50/50 apportionment as opined by Dr Hopcroft is the most appropriate apportionment. Such an apportionment takes into adequate account, as supported by the various medical opinions that are in evidence, the degenerative effects of the long segment spinal fusion at L3-L5 that resulted from the first injury on the adjacent segments and the effects of the second injury by way of aggravation of the resultant degeneration in the adjacent segments leading to a further fusion.
Accordingly, liability for the weekly compensation and compensation for medical expenses as ordered will be apportioned equally between the respondents.

[2023] NSWPIC 558

23 October 2023