Sonika Australia Pty Ltd v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Sonika Australia Pty Ltd v Workers Compensation Nominal Insurer (iCare) & Ors [2022] NSWPIC 589
APPLICANT:	Sonika Australia Pty Ltd
FIRST RESPONDENT:	Workers Compensation Nominal Insurer
SECOND RESPONDENT:	Shree Thapa
PRINCIPAL Member:	Josephine Bamber
DATE OF DECISION:	24 October 2022
CATCHWORDS:	WORKERS COMPENSATION - Application pursuant to section 145 of the Workers Compensation Act 1987 (1987 Act) brought by the applicant, an uninsured employer, disputing the notice for reimbursement served on it by the Workers Compensation Nominal Insurer; issue in dispute was whether the worker sustained an injury in the course of his employment with the applicant; Held –pursuant to section 4(b) of the 1987 Act the worker sustained an injury to his lumbar spine in the course of his employment with Sonika Australia Pty Ltd with his employment being the main contributing factor to the contraction or aggravation of the disease injury; pursuant to section 145(4) of the Workers Compensation Act 1987 Sonika Australia Pty Ltd is to reimburse the Workers Compensation Nominal Insurer the amount notified of $80,383.44.
determinations made:	1. Pursuant to s4(b) of the Workers Compensation Act 1987 Shree Thapa sustained an injury to his lumbar spine in the course of his employment with Sonika Australia Pty Ltd with his employment being the main contributing factor to the contraction or aggravation of the disease injury. 2. The deemed date of injury is 2 October 2019, being the date of his first incapacity for employment. 3. At all relevant times Sonika Australia Pty Ltd did not have a policy of workers compensation insurance. 4. Pursuant to s 145 (4) of the Workers Compensation Act 1987 Sonika Australia Pty Ltd is to reimburse the Workers Compensation Nominal Insurer the amount notified of $80,383.44.

STATEMENT OF REASONS

INTRODUCTION

On 28 January 2022 the Workers Compensation Nominal Insurer served on Sonika Australia Pty Ltd a notice under s145 of the Workers Compensation Act 1987 (the 1987 Act) seeking reimbursement of compensation paid to or on behalf of Shree Thapa for injury sustained in the employment of Sonika Australia Pty Ltd. The amount being sought in this notice is $80,383.44.
Sonika Australia Pty Ltd has brought these proceedings pursuant to s 145(3) of the 1987 Act to seek a determination from the Personal Injury Commission (the Commission) as to its liability in respect of the payment notified.
The Commission directed Sonika Australia Pty Ltd to file and serve an amended application to join as the second respondent to the proceedings, Shree Thapa, the alleged worker. An amended application was filed and names Shree Thapa as “the respondent”. To regularise the pleadings I amend the application to name as the first respondent, Workers Compensation Nominal Insurer, and Shree Thapa as the second respondent.
For ease of reference, I will refer in these reasons to the applicant as “Sonika”, the first respondent as “the Nominal Insurer” and the second respondent as “Mr Thapa.”
Sonika did not have a workers compensation policy at all relevant times. There is no evidence that Sonika is an exempt employer under s 155AA of the 1987 Act.
The main issue in dispute is whether Mr Thapa sustained an injury in the course of his employment with Sonika.

PROCEDURE BEFORE THE COMMISSION

Three telephone conferences were held on 29 March 2022, 6 May 2022 and 20 June 2022 to enable discussions to be held with the parties to ensure the matter was ready to proceed to the eventual hearing.
The matter was listed for conciliation conference/ arbitration hearing before me on
25 August 2022. Mr Howard Simons, solicitor, appeared for Sonika instructed by Mr Sourabh Bhardwaj, the director of Sonika. Mr Stephen Harris, solicitor, appeared for the Nominal Insurer. Mr Bruce McManamey, counsel, instructed by Ms Angy Basal, solicitor, appeared for Mr Thapa. Mr Thapa was present via remote access on the MS Teams platform due to the Covid-19 protocols at the time and the other individuals attended in person.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Miscellaneous application and attached documents;
(b)    Amended Miscellaneous application and attached documents;
(c)    Nominal Insurer’s reply and attached documents;
(d)    Mr Thapa’s reply and attached documents;
(e)    Application to Admit Late Documents (AALD-1) dated 24 March 2022 filed by Sonika attaching a statement of Mr Bhardwaj dated 24 March 2022 and annexures A and B;
(f)    Application to Admit Late Documents (AALD-2) dated 3 May 2022 filed by the Nominal Insurer and 175 pages of attached documents;
(g)    Application to Admit Late Documents (AALD-3) dated 8 June 2022 filed by Mr Thapa attaching his statement dated 7 June 2022, clinical notes from Back to Function Allied Health Clinic and a Complying Agreement dated 17 February 2022;
(h)    Application to Admit Late Documents (AALD-4) dated 9 August 2022 attaching the translation of the Nepalese calendar and clinical notes from Essence Physiotherapy, and
(i)    statement of Sourabh Bhardwaj dated 15 July 2022.

Oral evidence

There was an application by Sonika to cross-examine Mr Thapa which was opposed by both respondents. Oral submissions were made by all parties in relation to this application. The application was granted, limited to issues of credit and injury.
A sound recording was made of the arbitration hearing, which is available to the parties.

SUMMARY OF EVIDENCE

Sourabh Bhardwaj’s statements

Mr Bhardwaj has provided a statement dated 24 March 2022[1]. He is the director of Sonika. He states that Mr Thapa commenced employment with Sonika on 11 December 2017 and was employed up to and including 11 February 2020. His job was to make fruit juices, smoothies and yoghurts. Mr Bhardwaj relates that he received correspondence from icare in relation to an injury said to have occurred on 16 October 2019. He says he contacted icare to advise that as far as he knew Mr Thapa was not in Australia that day, that he was in Nepal. He says the last day Mr Thapa physically worked was on 14 October 2019. He states before being contacted by icare he did not know Mr Thapa had an injury. He says Mr Thapa returned to work on 1 January 2020 and worked his allocated hours. He says he was able to perform all his duties. He states that Mr Thapa finished his employment on 11 February 2020.
[1] Amended application p 42.
Attached to this statement is a copy of a document headed “Annexure A”[2]. Mr Bhardwaj in his statement says he completed Annexure A at the request of icare. He has signed the accompanying declaration on 7 May 2021[3]. It is stated that the questions relate to Shree Thapa for an injury described as back pain received on 16 October 2019 while in the employ of Sonika Australia Pty Ltd. Mr Bhardwaj has confirmed the company was the employer and on 16 October 2019 Mr Thapa was in Nepal and he had never advised of an injury.
[2] Amended application p 45.
[3] Amended application p 51.
On 12 October 2021 the solicitors acting for the Nominal Insurer wrote to Mr Bhardwaj advising that Mr Thapa “alleges an injury to his back as a result of work performed on and evidently over a period prior to 16 October 2019”[4]. The solicitors noted that as Mr Bhardwaj had expressed doubts about the claim and an investigation would be conducted.
[4] Amended application p 33.
In a statement dated 15 July 2022 Mr Bhardwaj states he wishes to respond to Mr Thapa’s statement. For ease of reference I have referred to his responses below when summarising Mr Thapa’s statement.

Top Juice Pty Ltd

Top Juice Pty Ltd have provided a letter dated 12 April 2022 stating that Shree Thapa was not working in any of the Top Juice company stores during the time of his injury (16 October 2019) as he was terminated from their system on 10 January 2018. It is stated that from 1 October 2019 Top Juice Warriewood was operating under a corporate store not Sonika Australia[5].
[5] Attached to Mr Bhardwaj’s statement dated 15 July 2022.

Payslips

Payslips are available recording that Sonika paid Mr Thapa wages on a weekly basis, and he had an annual salary of $28,202[6]. In the pay period 11/09/2019-17/09/2019 he was paid for 12.5 hours of ordinary leave and 7.5 hours on a Sunday. It is recorded he had not used any annual leave or “Personal/Carer’s Leave”[7].
[6] Amended application p 52.
[7] Amended application p 52.
For the pay period 18/09/2019-24/09/2019 he was paid for 11.5 ordinary hours and 8.5 hours on a Sunday, again it is recorded he had not used any annual or personal/carer’s leave[8].
[8] Amended application p 53.
In the pay period 25/09/2019-01/10/2019 he was paid for 19.5 “ordinary hours”. In that payslip it is recorded to that point he had accrued balance of 42.2960 in “annual leave” hours and 28.1981 in “personal/care’s leave” hours. And he had not used any annual or personal/carer’s leave.
For the pay period 02/10/2019-08/10/2019 he was paid for 20 hours “personal/carer’s leave”. The balance of his personal/carer’s leave was reduced by the 20 hours, and he had unused 8.9673 hours[9].
[9] Amended application p 19.
For the pay period 09/10/2019-15/10/2019 he was paid for 10.5 hours of ordinary hours and 8.9673 personal/carer’s leave, and he had a balance of unused personal/carer’s leave of 0.7487[10].
[10] Amended application p 20.
For the pay period 16/10/2019-22/10/2019 he was paid for 20 hours annual leave, reducing his unused annual leave balance to 26.9705 hours[11].
[11] Amended application p 21.
For the pay period 23/10/2019-29/10/2019 he was paid for five ordinary hours and 15 annual leave hours. He annual leave balance was reduced to 13.4090 hours[12].
[12] Amended application p 22.
For the pay period 30/10/2019-05/11/2019 he was paid for 13.4090 annual leave hours and unpaid leave 6.5910 hours. His annual leave balance was 1.0315 hours and personal/carer’s leave balance was 2.8028 hours[13].
[13] Amended application p 23.
For the pay period 01/01/2020-07/01/2020 he was paid for 3.25 ordinary hours and 4 hours for the Saturday[14].
[14] Amended application p 24.
For the pay period 08/01/2020-14/01/2020 he was paid for 7.5 ordinary hours and 3.3 Saturday hours[15].
[15] Amended application p 25.
For the pay period 15/01/2020-21/01/2020 he was paid for 4 ordinary hours and 4 Saturday hours[16].
[16] Amended application p 62.
For the pay period 05/02/2020-11/02/2020 he was paid 2.1661 annual leave hours and 3.3701 “Personal/Carer’s Leave” hours[17].
[17] Amended application p 63.

Claim form

Mr Thapa completed a claim form dated 14 February 2020[18]. He describes the tasks he was doing when injured as “nature & conditions. Work in Juice Shop. Received deliveries. Take them to cool room (heavy work). Carries bins (heavy). Makes juice. Stands all shifts. Heavy repetitive lifting.” The description of injury was stated as “lower back pain, L4/5, disc bulge, nerve impingement, L leg tingling/ radiating pain.” He gives the address of the work where injury occurred as Top Juice Warriewood and adds at the bottom of the form that he also worked for the same employer at Warringah Mall Store. In answer to the question “when did you first notice the injury/condition?” He answers “October 2019”. He gives the date he stopped work and reported the injury to the employer as 16 October 2019. He says he reported the injury to Sourabh Bhardwaj.
[18] Thapa reply p 1.

Shree Thapa’s statement

Mr Thapa has provided a statement dated 7 June 2022. He states his duties with Sonika involved repetitively lifting and moving objects weighing approximately 10 to 20 kilograms and he sustained an injury to his lower back.
He explains at [11]:
“My claim form was lodged because my injury was due to the nature and conditions of my employment, the injury was deemed to have occurred on 16 October 2019. At that time, my solicitor asked me when I first took time off work due to my injury. It was explained to me that the first date of incapacity is usually the deemed date of injury. At the time I thought it was 16 October 2019 because I remember commencing annual leave during this period. However looking back at my payslips I now know that my first date of incapacity was 2 October 2019.[19]”
[19] AALD-3 p 1.
With reference to 2 October 2019 Mr Bhardwaj states “he (Thapa) never spoke to me on that day saying that he was under any incapacity”.
At [12] he describes in considerable detail his duties at Sonika which involved bending, squatting, lifting, prolonged standing and walking. He describes working at the Warriewood store on 1 October 2019 an unpacking a delivery and walking back from the coolroom carrying ingredients in his arms when he felt a sharp pain in his lower back. He said he immediately called his manager, Mr Bhardwaj and told him he could not work. He said as soon as the afternoon shift worker arrived he explained he was in excruciating pain, and he needed to leave. He said he took personal leave from 2 to 8 October 2019.
Mr Bhardwaj states he ceased operating the Warriewood store on 30 September 2019. He says on 1 October 2019 he was operating the Top Juice store at Warringah Mall. Mr Bhardwaj confirms that Mr Thapa did take sick leave in the week 2 to 8 October 2019 but says no medical certificate was supplied by Mr Thapa.
Mr Thapa says on 3 October 2019 he consulted Adam Gavine chiropractor at Back to Function and he diagnosed him with left sided L4/L5 disc protrusion with L5 nerve impingement. Mr Thapa said he had severe lower back pain and numbness down his left leg. Mr Bhardwaj says he was unaware that Mr Thapa attended the chiropractor on 3 October 2019.
At [17] he says that Mr Bhardwaj contacted him after the week ended and asked if he could work a shift. Mr Thapa says he felt really bad and just pushed himself to go in. He says he thinks he did one full day of shift. He says he went again to see his chiropractor on 9 October 2019 and reported a sharp pain in his lumbar spine and glute. Mr Thapa said he was recommended some exercises and stretches to help with the pain. He says he attended the chiropractor again on 12 October 2019 and he took annual leave from 16 to 22 October 2019.
He describes again attending the chiropractor on 18 October 2019 and saying his pain was not getting any better and advising that he was an international student, and he could not afford treatment in Australia. He says his chiropractor encouraged him to return home to Nepal for treatment. He says in the week 23 to 20 October 2019 he took annual leave but worked a half day doing a five hour shift before finishing up to go overseas. He says his chiropractor emailed the university to advise he had no capacity to work or study due to the severity of his lower back injury. He says he departed for Nepal on 30 October 2019.
Mr Thapa says once he was in Nepal he consulted a local doctor and told him he had injured his lower back at work. An MRI scan was organised and admission to the physiotherapy hospital. He says at the Sushwastha Hospital he underwent three rehabilitation sessions a day consisting of physiotherapy, acupuncture and remedial massage.
He says he returned to Australia on or about 25/26 December 2019. He says he rang Mr Bhardwaj and explained he could not return to work. Mr Bhardwaj says he has no recollection of Mr Thapa calling him on either of these days. However, he says Mr Thapa did see him in late December 2019 or early January 2020 asking for a $20,000 loan as he needed the money to pay his university fees and that the university would not let him continue with his studies unless he paid, and he may be deported. Mr Bhardwaj said he told Mr Thapa he was not able to assist him financially.
Mr Thapa says his housemate, Milan, told him he might be able to claim workers compensation and he thought he might ask his manager whether he was entitled to make a claim. Mr Thapa says he saw him in January 2020, and he was told that the work insurance would not cover him. Mr Bhardwaj denies that Mr Thapa came to see him or that he told Mr Thapa about the work insurance not covering him.
He says he then sought legal advice and on 14 February 2020 he met with a solicitor from Law Partners who assisted him filling out the claim form. He says he was told he needed a certificate of capacity and so he attended Dr Huang on 15 February 2020.
Mr Thapa describes his treatment thereafter. This included in mid- 2021 the Nominal Insurer approving sessions with and exercise physiologist who due to the covid-19 lockdown came to his home and perform exercises on his back and show him safe ways to get in and out of chairs. He said he found these sessions reduced his back pain and weakness. At [40] he states he still experiences constant pain in his lower back which radiates to his left leg. He says his back is extremely weak and stiff which makes performing domestic tasks challenging. He lists in detail his ongoing disabilities.

Mr Thapa’s oral evidence

Mr Thapa’s oral evidence was sound recorded, which is available to the parties. Accordingly, I do not propose to set out a complete transcription of his evidence and below I have referred to the relevant evidence given by him relating to the issues that require determination.
Mr Simons asked Mr Thapa if he had re-read his claim form recently and he replied he had not. He was asked some questions about the contents of the claim form. Mr Thapa was told that the claim form had a question, “What is street address where the incident occurred?” and that the answer on the form was “Shop SP067/12 Jackson Rd Warriewood NSW”. Mr Thapa stated, “I was working at Warriewood when I felt pain that I couldn’t work anymore.”
Mr Thapa was asked by Mr Simons if he remembered writing the date of injury on his claim form as “16 October 2019 (deemed)”. He replied that “Yes because it had been long when I went like to meet Law Partners. I don’t really remember the date, like the exact date of injury.”
Mr Simons then asked: “You don’t remember at all?”
Mr Thapa replied: “Not really, not the exact date. What you can do is you can like if you can have the right to look at the CC camera at Warriewood Store then you will see I am standing there. I even called Sourabh on that day… to say I can’t work anymore that day.”
Mr Simons asked Mr Thapa if he was able to give an approximate date for the injury. He replied, “Somewhere around 1^st October, somewhere around near end of September, beginning October, somewhere around there”.
Mr Thapa was asked why there was a delay in his filling out a claim form and he explained that he went to Nepal for treatment and on his return some friends told him that he could apply for workers compensation and that is why he went to see Law Partners.
Mr Simons asked about the payslip for the period from 2 October 2019 to 8 October 2019 which states Mr Thapa took personal/carer’s leave in that week. He was asked “you didn’t take sick leave isn’t that correct?” He responded “Yeah I don’t know. I took leave that’s for sure.”
Mr Thapa was asked about his work duties involved making juices, smoothies and yoghurts. Mr Thapa replied, “Yes they were also my duties”.
It was put to Mr Thapa that he never told Mr Bhardwaj about his injury. Mr Thapa replied he definitely did and suggested his phone records be checked for around the time as they would show that Mr Thapa did ring Mr Bhardwaj. Mr Thapa was asked if he told Mr Bhardwaj about going to the chiropractor on 3, 9 and 12 October. Mr Thapa said he was not too sure if he told him or not.

Mr Thapa confirmed he took annual leave from 16 to 20 October 2019, he said so he could get paid. He was asked about paragraph 24 of his statement where he stated Mr Gavine wrote to the university about his injury, having no capacity to study or work due to the severity of his lower back injury, and it was put to Mr Thapa that he had not told Mr Bhardwaj about this. He replied “I think I remember telling him I was going to Nepal about this injury. I think I told him that letter, although I am not sure”.
Mr Thapa was asked about paragraph 29 of his statement, and he said he did speak to Mr Bhardwaj and was told these things were not covered by his insurance.
Mr Simons asked Mr Thapa about him returning to work on 1 January 2020. Mr Thapa said he was not too sure, but he did go and see Mr Bhardwaj on his return from Nepal. Paragraph 6 of Mr Bhardwaj’s statement of 24 March 2022 was read to Mr Thapa wherein Mr Bhardwaj stated that when Mr Thapa returned to work in January 2020 he was able to work all his allocated hours, Mr Bhardwaj saw him every day and Mr Thapa was able to perform his duties and he never said anything about an injury. Mr Thapa said this is “bullshit. He could clearly see me…he is clearly lying with every point he is making.”
He was asked, was the last day he physically worked before taking annual leave on 14 October 2019? Mr Thapa said he could not remember. Mr Thapa agreed he did not return to work after 11 February 2020, but he said he told Mr Bhardwaj he was going to apply for workers compensation.
Mr Simons asked if Mr Thapa asked Mr Bhardwaj for a loan of $20,000 to pay his university fees. Mr Thapa said he is not sure if he did. He agreed he needed money to pay his university fees. He said in the past he had obtained a loan of about $1,000 or $2,000 from Mr Bhardwaj and he had paid him back.
Mr Simons put to Mr Thapa that the injuries and disabilities he lists in his statement did not happen while he was working for Sonika. Mr Thapa disagreed. He was asked if the injury happened when he was on annual leave. He said no, he had annual leave so he could go to Nepal to get some treatment for his injury.
He was asked if he did anything at work that made his injury more severe. Mr Thapa said every second day he had to look after the deliveries as well and vegetables that came from the warehouse. He said he had to get the deliveries to the cool room and the front store. Mr Simons asked him if this involved heavy lifting and he said yes it did.
Mr McManamey in response asked Mr Thapa after he returned from Nepal did he do any work after he returned from Nepal. He said he tried but could not work. He was asked about pay slips that suggest he was paid in January and February 2020. Mr Thapa said he went to see Mr Bhardwaj a couple of times and maybe he paid him.

Essence Physiotherapy

Eddie Huang, physiotherapist, reported to Mr Thapa’s solicitors on 28 July 2022[20]. He advises on 1 October 2019 Mr Thapa presented with lower back pain with radiculopathy to the left leg. The history was “it started few months ago and his walking became more difficult from 2 days ago.” On examination it was found that the lower back pain was aggravated by sitting, walking and standing up from a chair. It is noted that he was encouraged to the active and avoid bed resting.
[20] AALD-4 p 2.

Back to Function Allied Health Clinic

Back to Function Allied Health Clinic has provided their records for consultations on 3 October 2019, 9 October 2019, 12 October 2019 and 18 October 2019[21]. The history in the first consultation taken by Adam Gavine is that Mr Thapa had low back pain in LS1 region for the past 3-4/12 and the pain had become worse over the past 3/7 and he was unsure why. It was recorded that there was radicular pain going down the lateral aspect of the thigh and leg to the mid-calf (L5 dermatome) for the past 3/7. It was noted that he works in a juice shop and has to stand all day and lift heavy boxes of fruit a few times per day. It is recorded that “physio 3/7 ago- did some acupuncture but had no effect. Was told to get a referral from GP for a lumbar MRI.” In this entry Mr Gavine sets out in detail his examination findings.
[21] AALD-3 pp 10-14.
On 9 October 2019 it is noted that Mr Thapa was no better, and he could not flex through his lumbar spine. On 12 October 2019 it was noted his back felt 40% overall and he was still in pain, but his back and lower limbs felt much freer and stronger after treatment. On 18 October 2019 it was recorded that his back was still very sore, he could lumbar flex with straight legs. He had decided to defer his studies and go back to Nepal so he can recover from his lumbar disc.

Nepalese records

The calendar used in Nepal differs to our calendar so that dates on the treating records from Nepal have been translated by Purnima Sanjel in the document dated 29 June 2022[22]. It is advised that the date of admission to Sushwastha Hospital “2076/08/01” converts to “17/11/2019” and the discharge dated of “2076/08/14” converts to “30/11/2019”. The date on the T.U. Teaching Hospital of “2076/7/18” converts to “4/11/2019” and the date “2076/07/22” converts to “8/11/2019”.
[22] AALD-4 p 1.
The MRI scan performed at the Tribhuvan University Teaching Hospital on 6 November 2019 refers to degenerative change in the lumbosacral spine and a disc protrusion at L4/L5 level with mild lateral recess and moderate left lateral recess stenosis causing mild compression of L4 exiting nerve root[23].
[23] Thapa reply p 14.
The Sushwastha Hospital discharge summary refers to Mr Thapa attending with low back pain and radiculopathy was diagnosed[24]. A handwritten note refers to complaint of pain in the left side of the low back radiating towards the left thigh associated with tingling sensation in the left leg[25].
[24] Thapa reply p 15.
[25] Thapa reply p 19.

Auburn Central Medical Centre

The first consultation Mr Thapa had with Dr Huang from the Auburn Central Medical Centre was on 15 February 2020. The doctor has recorded that Mr Thapa had back pain in last October from heavy lifting at work and he went back to Nepal for investigation and treatment. It is noted that an MRI scan revealed mild compression at L4 with L4/5 disc protrusion. Dr Rao states:
“currently not able to work
would like to have workcover
He states that he would not be able to work for a year
explain that my job is to help him return to work.[26]”
[26] AALD-2 p 74.
Dr Huang saw Mr Thapa again on 12 March 2020 at which time he wrote a referral to Dr Rao. Further consultations are recorded on 23 April 2020, 30 April 2020, 16 May 2020, 21 May 2020, 2 July 2020, 4 July 2020 and 9 July 2020. The notes are quite brief for each consultation. On 25 July 2020 Dr Huang noted that Mr Thapa still has no capacity for light duties. He says he explained the recovery plan and the expectation was he would return to work parttime with light duties[27]. A referral was given for physiotherapy and hydrotherapy. Thereafter, there are consultations on 29 August, 26 September, 29 October, and 21 November 2020 at which times it seems the doctor is trying to encourage Mr Thapa to return to some light work.
[27] AALD-2 p 77.
SIRA certificates of capacity were issued by Dr Huang certifying no current capacity for any work from 15 February to 7 March 2020[28], 8 March to 23 May 2020[29], 24 May to 22 June 2020[30], 23 June to 21 July 2020[31], and 22 July to 19 August 2020[32]. On 29 August 2020 Dr Huang changed the certification to has capacity for some work from 30 August 2020 to 27 September 2020 for 5 hours/day 5 days/week (if light duties available)[33]. This certificate listed a number of restrictions such as lifting/carrying capacity less than 5kg, standing tolerance less than one hour, no bending, pushing/pulling ability less than 5kg and driving ability was stated to be “ok”. The same certification was given for period 28 September 2020 to 26 October 2020[34], and 29 October 2020 to 23 November 2020[35]. In the certificate for the period 24 November 2020 to 22 December 2020 the restrictions for sitting and standing were reduced to less than 30 minutes at a time and there is no reference to the amount of hours and days that could be worked[36]. For the periods 23 December 2020 to 18 March 2021[37] the certification was the same and then the pushing/pulling ability was increased to less than 8kg[38] and on 22 April 2021 the lifting capacity was increased to less than 8kg[39]. On 6 November 2021 the lifting and pushing/pulling tolerances were increased to less than 10kg, standing tolerance to 45 minutes each time and sitting tolerance to 60 minutes each time and capacity for some type of work for 5 days per week, 6 hours per day[40]. This level of certification continued to 10 February 2022[41]
[28] AALD-2 p 82.
[29] AALD-2 p 85.
[30] AALD-2 p 88.
[31] AALD-2 p 91.
[32] AALD-2 p 97.
[33] AALD-2 p 100.
[34] AALD-2 p 103.
[35] AALD-2 p 106.
[36] AALD-2 p 109.
[37] AALD-2 up to p118.
[38] AALD-2 p 121.
[39] AALD-2 p 124.
[40] AALD-2 p 138.
[41] AALD-2 p 144.

Dr Rao

Dr Rao is Mr Thapa’s treating neurosurgeon in Australia. He performed a telephone consultation with Mr Thapa on the referral from Dr Huang, Auburn Medical Centre. Dr Rao advises in his report dated 6 April 2020 that Mr Thapa has a history of four month pain in the leg on the left side and has had to take time off work[42]. He noted that he went to Nepal for investigation as he is a student. The pain had not improved being 7/10 in the back and leg and is in the L5 distribution and goes to the top of the foot. Dr Rao records that the pain is worse on walking, standing and sitting and improved by lying down. He notes Mr Thapa has tried physiotherapy, chiropractic management, acupuncture and bed rest which made it better, but medication and massage made no difference.
[42] Thapa reply p 27.
Dr Rao states that the imaging from Nepal reveals a left L4/5 paracentral disc prolapse which is catching the left L5 nerve root in the lateral recess. Dr Rao advised that Mr Thapa has tried almost everything in terms of treatment and the next best option was a surgical decompression and that the discectomy proposed was minimally invasive. He estimated that chances of improvement of 80 to 90%.
Dr Rao provided a report to icare dated 21 April 2020 largely repeated his advice to Dr Huang and seeking approval to undertake a left L4/5 microdiscectomy[43].
[43] Thapa reply p 42.
Dr Rao reported to Dr Huang on 19 June 2020 noting he had seen Mr Thapa in his rooms. The date of the examination given is obviously a typographical error referring to “11 July 2020”, I infer it should refer to 11 June 2020 given Dr Rao later advises in his report he has set a date for surgery on 30 June 2020[44]. Nothing turns on the precise date of this examination. In this report Dr Rao refers to Mr Thapa having ongoing L5 radiculopathy with foot drop.
[44] Thapa reply p 31 and the date is corrected in the copy in AALD-2 p 154.
The MRI scan dated 25 June 2020 refers to “left paracentral/paraforaminal disc protrusion at the L4/L5 level impinging the descending left L5 nerve root in the lateral recess, accounting for the radiculopathy and foot drop”[45].
[45] AALD – p 156.
The operation was performed on 26 June 2020 and in the operation report Dr Rao noted his findings of a sequestered disc fragment at the shoulder of the L5 nerve root, facetal hypertrophy and dura stuck to the sequestered fragment. There was a complication in the surgery of a dural tear. Detailed instructions are provided in the report to Mr Thapa about treatment, work capacity, driving ability and the need to avoid bending/twisting for six weeks to avoid the risk of recurrent disc herniation[46].
[46] Thapa reply p 37.
Dr Rao advises he examined Mr Thapa on 10 July 2020, which was two weeks after the discectomy, and he said Mr Thapa was doing really well[47]. He had no back pain but occasional pain in his buttock. The foot drop had completely resolved. He recommended Mr Thapa commence hydrotherapy, leg strengthening exercise and increase his walking. He was fit to drive.
[47] Thapa reply p 29.

Dr Breit

Dr Breit, orthopaedic surgeon, provided a medico-legal report for icare[48]. The doctor has a history that Mr Thapa was a credit officer in Nepal and came to Australia in 2016 and worked for Top Juice at a number of different sites. He advised the doctor that he had been getting some low back pain which started slowly and was associated with some stiffness that got better as he became more mobile during the day. Dr Breit states that Mr Thapa went to pick up a box on 16 October 2019 and could not move. He says the matter was reported and Mr Thapa at that stage developed some leg pain. It appears Dr Breit was informed that Mr Thapa self-funded some chiropractic treatment and returned to Nepal and had physiotherapy and hydrotherapy without benefit. Dr Breit was informed about the surgery undertaken by Dr Rao and Mr Thapa said the left leg pain is still present, but the numbness has settled. He complains of some low back pain.
[48] AALD-2 p 165.
Dr Breit advised that Mr Thapa’s disc lesion is related to his employment if the information regarding loads is correct, and the spinal problem relates to repetitive lifting. Dr Breit found that Mr Thapa had a capacity to work three hours a day,five days per week in an area where there is no bending, stooping, lifting or carrying more than 5kg and where he can sit, stand and move about according to his comfort. The doctor found he was unfit for pre-injury duties. Dr Breit recommended hydrotherapy and physiotherapy due to the stiffness experienced by Mr Thapa.

Dr Darwish

Dr Balsam Darwish, neurosurgeon and spinal surgeon, provided a report for Mr Thapa dated 28 April 2021. He has a history that Mr Thapa had to lift items weighing 10 to 20kg and he sustained an injury to his back in around October 2019. The doctor notes at that time he developed lower back pain radiating to the left leg associated with paraesthesia in the left leg. He records that because Mr Thapa was a student in Australia he went back to Nepal and spent one month there from November to December 2019. Dr Darwish notes that Mr Thapa tried physiotherapy and hydrotherapy and pain management without improvement and returned to Australia and was referred to Dr Rao, neurosurgeon, on 12 March 2020.
Dr Darwish noted that Mr Thapa had an MRI on 25 June 2020 and an L4/5 discectomy on 26 June 2020 with improvement in his left leg pain, but he has continued to complain of back pain and mild weakness in the left foot.
Dr Darwish expressed the opinion that the work-related injury and the nature of his employment is the cause of his symptoms and the need for the surgery. Dr Darwish expressed the opinion that Mr Thapa will be able to return to the workforce full time on restricted duties, not lifting objects heavier than 5kg. He noted Mr Thapa has a degree in business and the doctor advised that Mr Thapa can perform office work on a full-time basis.

Sonika’s submissions

Mr Simons conceded that Mr Thapa left Australia on 30 October 2019 and returned on 26 December 2019. He accepted that the treatment records from Nepal, and the translation of the dates referred to therein, shows that this treatment occurred after Mr Thapa left Australia on 30 October 2019. He did submit that the records from Nepal had not been certified. However, I find this is not a relevant consideration. For instance, when hospital records are obtained from a hospital in New South Wales they are not certified.
It was submitted that Mr Bhardwaj on the information sheet for the Nominal Insurer said Mr Thapa’s duties were making juices, smoothies and yoghurts and acknowledged that Mr Thapa states his duties extended beyond that.
Mr Simons relies on the statements of Mr Bhardwaj that he was not told about any injury at work by Mr Thapa.
He submitted that many of the documents from icare alleged the date of injury as being 19 October 2019 which was a Saturday and 16 October 2019 was a Wednesday. He submitted that none of the payslips in 2019 refers to Mr Thapa working on a Saturday. Mr Simons referred to the letter from Top Juice Pty Ltd which stated that from 1 October 2019 Top Juice Warriewood was operating under a corporate store not Sonika Australia[49]. Mr Simons submitted that Mr Thapa in his oral evidence dated the injury to even September 2019 because he had realised that Sonika Australia was not running the Warriewood store from 1 October 2020. It was submitted this goes to the question of Mr Thapa’s credit. It was further submitted that the respondents chose not to cross-examine Mr Bhardwaj and there is no challenge to any of his evidence that he did not know about the injury until he was informed of the allegation by the Nominal Insurer.
[49] Attached to Mr Bhardwaj’s statement dated 15 July 2022.
Mr Simons submitted that there is no reference in the payslips to sick leave, only to “personal/carer’s leave”. It was submitted that Sonika was never supplied with a medical certificate. Mr Simons referred to Dr Breit’s report with the history on 16 October 2019 he picked up a box and felt back pain. Mr Simons submitted it is evident from the payslips that Mr Thapa did not work on 16 October 2019 as he was on annual leave that week.
Reference was made to Dr Darwish’s report in which the doctor stated that the date of injury was October 2019 and again reliance was placed on the fact that Sonika did not operate the Warriewood store from 1 October 2019. It was submitted if Mr Thapa is wrong about the date of injury, he is wrong about any injury having been incurred in the course of his employment with Sonika.
Mr Simons submitted he cross-examined Mr Thapa about the claim form where it is stated that the injury occurred at the Warriewood store, and he agreed with that. Mr Simons said on the bottom of that form he has written he also worked for the same employer at the Warringah Mall Store and argued that Mr Thapa was able to distinguish between the two places.

Mr Thapa’s submissions

Mr McManamey submitted that issue to be determined is whether Mr Thapa has suffered an injury arising out of or in the course of his employment and whether the employment is a substantial contributing factor. He submitted it is not an injury resulting from a “frank incident” but from heavy and repetitive work when in the employ of Sonika.
Reference was made to Mr Thapa’s statement in paragraph 12 with his description of his employment duties involving cleaning the store and taking deliveries which involved heavy repetitive lifting of stock into the cool room and store. It was submitted that there is no evidence to dispute this description of his duties. Mr McManamey submitted that Mr Bhardwaj has stated his duties involved making juices, smoothies and yoghurts and it is not disputed that was part of Mr Thapa’s duties, but his duties involved more than this.
It was submitted that Mr Thapa said he sought treatment for pain in his back and this is confirmed by the records from the physiotherapist’s practice. It is noted on the first consultation on 1 October 2019 the history was the back pain started a few months earlier and walking became more difficult two days earlier. Counsel submitted that this would be 29 September 2019 but also supports the problem was developing for some time.
Mr McManamey also placed reliance on the Back to Function records and the consultation on 3 October 2019 and the history is consistent with that of the physiotherapy records that the back pain was worse for three days. It was noted this history also states he has to lift heavy boxes of fruit at work.
It was submitted that while Mr Thapa was not sure about the dates he suffered back pain the contemporaneous records shows it was developing and became worse at the end of September 2019.
It was also submitted that it is beyond doubt he had back pain up to 1 October 2019. Also there is no dispute he was off work from 2 October 2019 from an examination of the pay slips.

It was also submitted that Mr Thapa has more recently tried to recall dates and it is not significant that precise dates are not given and get muddied. It was submitted in this context the history about dates in Dr Breit’s report is not significant but the crucial part about the history is the type of work he was performing. Dr Breit’s opinion about causation is that there is a link with work if the history about loads is accepted. It was submitted that this history is in fact undisputed. It was submitted that Dr Darwish also supports the causal link with the nature of the work.
Mr McManamey submits it is irrelevant if the Warriewood store management changed on 1 October 2019. It was submitted that Sonika remained the employer, as demonstrated by the payslips. It was also submitted that it is not material whether Mr Thapa and Mr Bhardwaj had conversations given the medical evidence which is supportive of an injury. Furthermore, it is clear the injury is a nature and conditions type injury.
It was also submitted that it is irrelevant whether Mr Thapa asked for a loan from Mr Bhardwaj. In addition, any suggestion that Mr Thapa did not give a statement to the investigator from the Nominal Insurer is somehow relevant cannot be supported. It was argued that Mr Bhardwaj also did not give a statement as he wanted to wait and see Mr Thapa’s version of events. It was submitted, ultimately though, these matters do not need to be determined. Counsel repeated the submission that the contemporaneous medical evidence supports that Mr Thapa did sustain an injury in the course of his employment with Sonika Australia.

Nominal Insurer’s submissions

Mr Harris submitted that the starting point is s 145 of the 1987 Act and the notice issued to Sonika seeking reimbursement of the workers compensation payments made relating to Mr Thapa’s injury. Pursuant to s 145(4) the Commission has power under the legislation to make orders it sees fit and this should include a determination that Mr Thapa suffered an injury in the course of his employment and the employment was a substantial contributing factor and an order that Sonika reimburse the Nominal Insurer the payments it has made.
Mr Harris adopted Mr McManamey’s submissions in their entirety and he added that it seems to have been suggested that Mr Thapa was not employed by Sonika at the relevant time but this is not supported by Mr Bhardwaj’s statements and the payslips.
The totality of the evidence suggests that Mr Thapa is entirely credible as his oral evidence demonstrated. All the experts Dr Rao, Dr Breit and Dr Darwish have found Mr Thapa sustained a back injury and the cause of that was his work duties. Furthermore, Mr Harris submitted that Mr Thapa had set out in his statement in paragraph 12 his physical duties. Mr Bhardwaj’s statement specially said it was given in response to Mr Thapa’s statement, but he did not respond to paragraph 12 and that description of duties. The totality of the evidence supports the position taken by the Nominal Insurer to accept liability and makes payments of workers compensation. The claim was reported to the Nominal Insurer in the time periods permitted under the legislation, so it is irrelevant whether Mr Bhardwaj was told at the time or not of the injury.

DETERMINATION

In this matter there is a lack of some clarity in Mr Thapa’s evidence about some of the dates. Also, some of his evidence does not seem plausible, such as his answers to questions about whether he sought a loan of $20,000 from Mr Bhardwaj. I find it difficult to accept that Mr Thapa cannot remember if he did or did not seek such loan because the amount is a large sum. While I accept Mr McManamey’s submission that asking for a loan is an irrelevant fact, Mr Thapa’s answer does reflect poorly on his credit as a witness. Nonetheless, overall Mr Thapa did impress me as a witness of truth. He freely admitted when he could not remember or was not sure about information. He did not exaggerate.
I have not based my determination solely upon my impressions of Mr Thapa as a witness. I find that the contemporaneous treatment records are important because they are consistent with the tenor of his evidence.
The timeline that is confirmed by the medical evidence and the payslips is as follows:
(a)    Up to 1 October 2019 – there is a cumulative total in the payslips recording Mr Thapa had not used any annual leave or “Personal/Carer’s Leave”.
(b)    1 October 2019 – Mr Huang physiotherapist examined Mr Thapa noting he presented with lower back pain with radiculopathy to the left leg. The history was “it started few months ago and his walking became more difficult from 2 days ago.”
(c)    3 October 2019 – Adam Gavine (Back to Function Allied Health Clinic) notes low back pain for the past three to four months and the pain had become worse over the past three days. The pain was also described as radicular. It was noted that he works in a juice shop and has to stand all day and lift heavy boxes of fruit a few times per day.
(d)    Mr Bhardwaj confirms in his statement that Mr Thapa did take “sick leave” in the week 2 to 8 October 2019. His payslip confirms Mr Thapa was paid for 20 hours “personal/carer’s leave” and the balance of his unused personal/carer’s leave was reduced down to 8.9673 hours[50]. I find from Mr Bhardwaj’s statement it is consistent that “sick leave” is more likely than not included in the term on the payslip of “personal/carer’s leave”.
(e)    On 9 October 2019 – Adam Gavine noted that Mr Thapa was no better, and he could not flex through his lumbar spine.
(f)    On 12 October 2019 – Adam Gavine noted some improvement, but he was still in pain.
(g)    On 14 October 2019 – Mr Thapa worked according to Mr Bhardwaj’s statement. This is consistent with the payslip for the pay period 09/10/2019-15/10/2019 he was paid for 10.5 hours of ordinary hours and 8.9673 personal/carer’s leave[51].
(h)    Between 16 October to 22 October 2019 Mr Thapa did not work and took annual leave.
(i)    On 18 October 2019 – Adam Gavine recorded that his back was still very sore, and he had decided to defer his studies and go back to Nepal so he can recover from his lumbar disc.
(j)    The payslip for 23/10/2019-29/10/2019 shows he was paid for five ordinary hours and 15 annual leave hours[52].
(k)    On 30 October 2019 Mr Thapa left Australia for Nepal.
[50] Amended application p 19.
[51] Amended application p 20.
[52] Amended application p 22.
I find that it is evident from this timeline that Mr Thapa sought treatment for his back while he was working for Sonika and reported that he had experienced an increase in his symptoms prior to 1 October 2019. I also find it significant that he informed Mr Gavine about his work in the juice shop, and this involved standing and lifting heavy boxes of fruit.
I accept the respondents’ submissions that Mr Thapa has given a very detailed account in his statement of the physical aspects of his work for Sonika both in relation to cleaning and managing deliveries. He was asked by Mr Simons if he did anything at work that made his injury more severe. Mr Thapa said every second day he had to look after the deliveries as well and vegetables that came from the warehouse. He said he had to get the deliveries to the cool room and the front store. Mr Simons asked him if this involved heavy lifting and he said yes it did. I find this evidence is consistent with his written statement, and also consistent with his account to Mr Gavine on 3 October 2019.
I also find that Mr Bhardwaj in his statement did not challenge this account of the physical aspects of the work. While Mr Thapa’s job description may be making juices, smoothies and yoghurts, it is consistent to make such products for customers he would need to access ingredients such as fruit and vegetables from deliveries or the cool room.
I find the evidence is overwhelming that prior to Mr Thapa departing for Nepal he was experiencing symptoms consistent with a back injury as recorded by a physiotherapist and chiropractor. Dr Rao, Dr Darwish and Dr Breit have all provided specialist opinions. Clearly the history recorded by Dr Breit is “muddled” to use Mr McManamey’s expression in terms of date of injury and sequence of events. Dr Breit refers to lifting a box on 16 October 2019, but it is clear from the treating records I have listed above that well before this date Mr Thapa was experiencing back problems. However, I am persuaded by Mr McManamey’s submission that the important part of Dr Breit’s opinion is relating the back injury to lifting loads. As I have noted Mr Thapa did tell Mr Gavine about heavy lifting at work in the consultation on 3 October 2019. I find this to be significant as it was well before Mr Thapa knew about the ability to bring a workers compensation claim. I accept his evidence that he returned to Nepal to seek treatment because he was an international student he was not entitled to access Medicare treatment in Australia.
I also accept Mr McManamey’s submission that whether Mr Bhardwaj was told about the injury is not determinative. However, I found Mr Thapa’s oral evidence to be quite persuasive when he suggested the fact, that he did ring Mr Bhardwaj, could be checked by access to CCTV or phone records. That would be a risky suggestion to make if he had not made a call to Mr Bhardwaj.
However, as submitted by the respondents and accepted by me for the reasons set out above, the most compelling evidence are the histories given to Eddie Huang, physiotherapist on 1 October 2019 and Adam Gavine,chiropractor, on 3 October 2019. I am satisfied that Mr Thapa did sustain an injury to his lumbar spine in the course of his employment with Sonika from the repetitive, and at times heavy, nature of his duties, which became worse towards the end of September 2019 into October 2019.
The quantum of the payments made by the Nominal Insurer to and on behalf of Mr Thapa including for his weekly compensation and treatment expenses has not been challenged by Sonika. I find that pursuant to s 4(b) of the 1987 Act that Mr Thapa sustained an injury to his lumbar spine in the course of his employment with Sonika to which his employment was the main contributing factor to contracting lumbar disease or aggravating any hitherto asymptomatic underlying condition. Whether the injury falls under s 4(b)(i) or 4(b)(ii) is not material in this matter. The correct deemed date of injury should probably be 2 October 2019, being the date of first incapacity for employment. Although I acknowledge that this is a somewhat academic question because the early treating medical evidence confirms he was suffering symptoms prior to this and there is no evidence of him being employed by a later employer. The letter from Top Juice confirms Mr Thapa has not been an employee of theirs since 2018 and the payslips from Sonika confirm he was still employed into 2020.
Accordingly, I order that Sonika Australia Pty Ltd is to reimburse the Workers Compensation Nominal Insurer the amount notified of $80,383.44.

[2022] NSWPIC 589

24 October 2022