Studdert v State of NSW (Western NSW Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Studdert v State of NSW (Western NSW Local Health District) [2025] NSWPIC 157
APPLICANT:	Linda Studdert
RESPONDENT:	State of NSW (Western NSW Local Health District)
MEMBER:	Fiona Seaton
DATE OF DECISION:	17 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; disputed aggravation of lumbar spine injury and consequential psychological injury; claim for weekly payments and medical expenses; Held – the applicant sustained an aggravation of her lumbar spine injury and a consequential psychological injury; the respondent to pay weekly benefits compensation and reasonably necessary medical expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an aggravation, acceleration, exacerbation or deterioration of her lumbar spine disease with deemed date of injury 4 June 2024, and her employment with the respondent was the main contributing factor to that aggravation, exacerbation, acceleration or deterioration within the meaning of s 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act). 2. The applicant has sustained a consequential psychological injury as the result of her lumbar spine injury. 3. The applicant is entitled to weekly compensation from 26 August 2024 to date and continuing at pre-injury average weekly earnings of $1,039.26 subject to indexation. 4. The applicant is entitled to payment of reasonably necessary medical or related expenses arising from her lumbar spine and psychological injuries pursuant to s 60 of the 1987 Act. The Commission orders: 5. The respondent is to pay the applicant weekly compensation at the pre-injury average weekly earnings rate of $1,039.26 subject to indexation as follows; (a) 26 August 2024 to 8 September 2024 at $1,039.26 x 95%, or $987.30, less capacity to earn eight hours per week at $37.12 per hour, or $296.96 per week, being $690.34, pursuant to s 36(2) of the 1987 Act; (b) 9 September 2024 to 16 September 2024 at $1,039.26 x 95%, being $987.30, pursuant to s 36(1) of the 1987 Act; (c) 17 September 2024 to 30 September 2024 at $1,039.26 x 80%, being $831.41, pursuant to s 37(1) of the 1987 Act; (d) 1 October 2024 to 30 March 2025 at $1,039.26 x 1.0198, or $1,059.84 rounded to $1,060 x 80% being $848.00, pursuant to s 37(1) of the 1987 Act, and (e) 1 April 2025 to date and continuing at $1,059.84 x 1.0043, or $1,064.40 rounded to $1,064 x 80% being $851.20, pursuant to s 37(1) of the 1987 Act. 6. The parties have 14 days liberty to apply with respect to the calculation of indexation of the weekly compensation amounts referred to above. 7. The respondent is to pay reasonably necessary medical or related expenses arising from the applicant’s lumbar spine and psychological injuries pursuant to s 60 of the 1987 Act. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant Ms Linda Studdert was employed by the respondent as a Hospital Assistant at Parkes Hospital in May 2016 to assist in providing meals to patients.
The applicant alleges her work duties caused back strain. This became worse over time, her back pain flared up in 2021 and was particularly noticeable in the last 12 months. She experienced an intense pull in her back at work on 10 February 2024.
A formal report was made of the injury on 27 March 2024 and a claim was made on 2 June 2024. The applicant ceased working on 24 June 2024 due to her back and leg symptoms. She has also been diagnosed with a consequential psychological injury.
Liability for the injury was initially accepted. A dispute notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) issued on 19 August 2024 disputed liability for the injury.
The dispute was maintained on 4 September 2024, 24 September 2024, 16 October 2024 and 24 December 2024 following internal reviews.
An Application to Resolve a Dispute (ARD) was lodged with the Personal Injury Commission (Commission) on 22 January 2025 claiming weekly compensation from 26 August 2024 to date and continuing and future medical or related expenses.
The dispute was listed for conciliation conference and arbitration hearing on 27 March 2025.

ISSUES FOR DETERMINATION

The parties agree the following issues remain in dispute:
(a) whether the applicant sustained a lumbar spine injury on 2 June 2024 pursuant to s 4(b) of the Workers Compensation Act 1987 (1987 Act);
(b)    whether the applicant has suffered a consequential psychological injury as a result of injury on 2 June 2024;
(c)    the extent and quantification of the applicant’s entitlement to weekly compensation from 26 August 2024 to date and continuing pursuant to ss 36 and 37 of the 1987 Act, and
(d)    whether the applicant is entitled to the payment of medical expenses pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 27 March 2025 by audio visual link. Ms Sarah Warren appeared for the applicant instructed by Mr Grant Taljaard, legal representative. Mr Tom Grimes appeared for the respondent instructed by Ms Taylor Hales, legal representative. Ms Hunter was also present.
The respondent’s application to lodge additional documents dated 21 March 2025 was admitted into evidence during conciliation.
I am satisfied 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 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)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    Respondent’s Application to Lodge Additional Documents (ALAD) dated 21 March 2025 and attached report.

Oral evidence

No application was made to call oral evidence.

Applicant’s evidence

The applicant relies on her statements of 2 October 2024 and 16 January 2025.
Prior to working for the respondent the applicant worked as a nursing home assistant for three years and as a cleaner for two years. She has not had any previous workers compensation claim.
The applicant twisted her back in 2017 while shopping and consulted her doctor. She does not recall whether she had any time off work.
As a Hospital Assistant at Parkes Hospital from May 2016 she worked on a rotating seven day shift in a team of three which included a cook and another hospital assistant.
She often worked up to four hours after her shift finished. Due to staff shortages she was frequently asked to do tasks outside of her role such as cooking.
The applicant’s tasks included;
(a)    preparing sandwiches, plating desserts, attending to patients, recording meal orders, diet codes and allergens;
(b)    plating meals on to trays and placing the trays into 16-tray or 24-tray trolleys, involving bending and stooping;
(c)    pushing trolleys with breakfast and lunch meals along a vinyl floor to transfer the trolleys to the wards and the Inpatient Unit, with a smaller trolley used for morning tea;
(d)    stripping the trays from a standing position at the sink, and
(e)    heavy lifting was a major part of the job including moving two large trolleys of water bottles weekly when the trolleys were difficult to push requiring awkward postures and lifting heavy boxes of cold food items into the fridge from low to high positions.
Over eight years the employment conditions strained her back. This became worse over the last three years and was noticeably bad in the last 12 months due to workplace incidents.
There was a flare up of back symptoms in 2021 with continuous back discomfort and some pain radiating down her left leg. A spinal injection helped for three months however the pain returned and spread to both legs, more on the left.
The applicant had a second injection in December 2023 on the right side which improved the pain in her leg but did not help much with her lower back pain.
She continued to work her normal hours without any restrictions in her duties during this time.
On Saturday 10 February 2024 while delivering water, milk and sandwiches and pulling a trolley to turn into the emergency department, the applicant suffered an intense pull in her back. She stood still for a while and tried to continue working however the back pain was so severe during the weekend shift she could not perform her duties.
On Sunday 11 February 2024 when she completed her shift she went to the emergency department. It was suggested she take some time off work. The applicant messaged her manager Ms Caroline Pearce the next morning to advise her that she had hurt her back.
Following her rostered days off from 12 February to 18 February 2024 the applicant returned to work and was immediately rostered on full duties.
When her lower back and leg symptoms failed to improve the applicant formally reported the incident on 27 March 2024.
She tried to continue working but stopped on 2 June 2024 as the pain had become unbearable and her psychological state also worsened. She had no psychological issues prior to her work injury.
Her general practitioner Dr Mohammadi referred her to Dr Tait, neurosurgeon. Dr Tait referred her to Dr Deshpande, pain specialist, as surgery is not an option at this stage. Her general practitioner also referred her to Dr Lim who deals with workers compensation matters.
Dr Deshpande said the applicant needed to have nerve blocks but she has not booked in for the procedure. Dr Deshpande also prescribed strong pain medication.
The applicant is taking Gabapentin, having discontinued taking Lyrica because of the side effects.
Her current symptoms are severe pain in the lumbar spine radiating to the outer part of her left leg and down to her left foot, and discomfort in the right leg down to the right knee on the outside of her thigh.
The inactivity brought about by the injury has resulted in significant weight gain. The applicant’s sleep is disturbed due to pain and ongoing anxiety associated with work and her injury.
The applicant continues to feel stressed and has become increasingly depressed, anxious and withdrawn. She cannot live independently at the moment, needing prompting to shower daily and wear clean clothes and she often misses meals.
She rarely goes out to social events and only when prompted as she will not go out without someone supporting her. She remains quiet and withdrawn when she is out. She only travels alone to familiar places like the local shops and her relationships have become strained. She has difficulty concentrating. She is unable to work in any capacity or participate in occupational rehabilitation.
The applicant’s last day of work was 24 June 2024. She has not returned to work since then due to the severity of her physical and psychological symptoms.
In her supplementary statement of 16 January 2025 the applicant clarifies that the pain she experienced on 10 and 11 February 2024 is similar to the pain she experienced before and after this incident and that she still experiences to date.
It is the same back pain that she relates to her workplace injury that started more than three years ago, with pain going down her legs.
The applicant is tired of being in pain every day, which is also severely affecting her mental health. She requires urgent treatment which she is not able to afford out of her own pocket.
The applicant’s claim form dated 5 June 2024 shows the date of injury as 2 June 2024 for a lumbar spine disc disease injury, adjustment disorder and weight gain as a result of repetitive lifting, bending and prolonged standing at work.

Worksite Investigations

Worksite Investigations provide a factual investigation report dated 19 July 2024.
The report includes photos that appear to be taken at Parkes Hospital that show a laden trolley in the kitchen, workers stripping trays at a sink, trolleys being pushed in corridors, and a 16-tray and 24-tray trolley.
A statement was obtained from Ms Carolyn Pearce, manager of support services at Forbes and Parkes Hospitals, on 9 July 2024.
The applicant is one of 20 staff she manages. The applicant was a permanent part timer working 56 hours per fortnight on a rotating seven day roster. She mainly worked day shifts from Monday to Friday between 6.00am and 2.30pm. Weekend shifts were the same or occasionally would be from 10.30am to 7.00pm.
Ms Pearce describes the duties of the Hospital Assistant role which are of a repetitive nature and involve constant standing.
The applicant performed her duties well however she made constant complaints about the standard of other people’s work. She was reliable with her attendance which was good. Apart from a general complaint about her back hurting when pushing a trolley there was no incident reported.
Ms Pearce recalled the applicant leaving work early on a Sunday reporting she had a bad back. When she next attended work she told Ms Pearce “I think I may have overdone it in the garden.” When she later mentioned this to her the applicant said she did not say that.
Ms Pearce provides a diary note she appears to have made on 2 April 2024; “I said to Linda that I thought I recalled her telling me that she thought she may have overdone it in the garden. Linda very adamantly said she never said that.”[1]
[1] ARD page 132.
A statement was also obtained from Ms Dionne Robinson on 9 July 2024.
Ms Robinson was employed as the head cook at Parkes Hospital from 2018 reporting to Ms Pearce. She describes the applicant’s duties including that the work involves a lot of standing on both feet and is of a repetitive nature. She found the applicant works well and is a goer.
Ms Robinson noticed over the last couple of months the applicant commenced to complain about back pain, which she did not attribute to any activity at work, and said it was getting worse. She started to complain about once or twice per week and it was noticeable towards the end of the week.
On 15 June 2024 Ms Robinson attended work and was informed the applicant was in the emergency department and the cleaners had collected the breakfast trays. The applicant was unable to resume work and her back was sore.
The position description for Hospital Assistant Grade 2 – Catering is attached to the factual report. It includes a list of physical demands of the role and whether they are infrequent, occasional or frequent.
The incident report of 27 March 2024 for the incident on 10 February 2024 is also attached.
A text message from the applicant to Ms Pearce on 13 February 2024 advises Ms Pearce that the applicant finished work on Saturday with a sore back, on Sunday the emergency department staff gave her pain medication, and she was resting her back.

A/Prof Paul Miniter, independent orthopaedic surgeon

A/Prof Miniter was qualified by the respondent. He reports on 12 August 2024 of a definite history of long term back pain, including in 2012 when the applicant was pregnant.
A/Prof Miniter has no explanation for her back pain. It is certainly not caused by the workplace in his opinion as the nature and conditions of employment have been convincingly dissociated from the workplace. There is no evidence of neurological compression, and the investigations do not suggest any local pathology of significance.
He concurs with the applicant that there is no place for surgery, which would be inappropriate. There is no clear explanation for her presentation.
The diagnosis is made of an unusual abnormal illness behavioural pattern.
In his file review of 14 November 2024 A/Prof Miniter diagnoses the applicant as having mechanical back pain due to degenerative change amplified by her relative obesity, relatively poor physical fitness and age. He notes the scans clearly demonstrate longstanding degenerative change.
A/Prof Miniter can see no evidence of an injury to her lumbar spine associated with her employment. The cause is difficult to determine but back pain of mechanical quality is very common in the general community. The medical literature is clear in his opinion that the nature and conditions of employment are not responsible for the development of back pain.
The factors A/Prof Miniter has taken into account are that there is no date of a specific injury, it has developed over a number of years and there has been no improvement in her symptoms since discontinuing work. He can see no aggravation to the lumbar spine associated with her employment.
There is no reason for her not to work full time in A/Prof Miniter’s view, and there is no place for surgical treatment or a requirement for further treatment.
In A/Prof Miniter’s file review dated 18 March 2025 the diagnosis is made of chronic mechanical back pain. The applicant has a long history of lower back pain which predates her employment and there is no evidence she has sustained an injury to the lumbar spine associated with her employment. The doctor says this is a common problem in the general community and is not due to the workplace.
A/Prof Miniter notes that while the applicant claims that her work has been heavy and repetitive this is not borne out by the independent evaluation of the matter.
In his opinion the applicant is fit to return to her work and her complaints are not reasonably associated with her employment. She does not require further treatment other than a self-motivated exercise and strengthening program. There is no evidence of injury.

Dr Roger Pillemer, independent orthopaedic surgeon

Dr Pillemer, qualified by the applicant, first reports on 9 September 2024.
Dr Pillemer notes the description the applicant provides of developing discomfort in her lower lumbar region some three years ago with referred pain down her left lower limb, and that she continued to work until 2 June 2024 when her symptoms increased significantly. He notes her description of her work that is very heavy at times.
The applicant had an epidural injection three weeks ago but feels it did not help. She is using a TENS machine and taking Gabapentin, Naproxen and Panadeine Forte, as well as being under the care of a psychologist.
Dr Pillemer concludes the applicant has a mechanical problem in the lower lumbar region with evidence of nerve root involvement (that is, radiculopathy) with evidence of S1 nerve root irritation. There is also evidence of L5 involvement.
Her employment has been the main contributing factor to the aggravation of an underlying degenerative condition at the L4/5 level in the doctor’s opinion.
Noting the extent of her discomfort, the duration of her symptoms, and the neurological loss, it seems likely to Dr Pillemer that her treating specialist will recommend decompression and/or fusion in her lower lumbar spine. She needs to continue with her conservative measures at the moment. She is not fit for any work.
Dr Pillemer disagrees with A/Prof Minister’s suggestion that there is no clear explanation for the applicant’s presentation.
In his supplementary report of 27 December 2024, Dr Pillemer comments on A/Prof Miniter’s file review, and confirms his view that the applicant has radiculopathy. Dr Pillemer notes A/Prof Miniter does not mention carrying out any sensory testing.

Dr Matthew Tait, treating neurosurgeon

Dr Tait reports on 27 February 2024 that the applicant’s main symptom is her lower back pain, and he requests an MRI and bone scan.
On 21 May 2024 Dr Tait notes the applicant is still suffering from severe back and leg pain, worse on the left radiating to the knee. The bone scan shows no significant increased uptake to explain her symptoms other than a possible subtle increase in the L5 pars region bilaterally. The MRI shows generally good appearances, although possibly some L5 nerve root entrapment within the lateral recess at L4/5 on the left.

Dr Tait referred her to Dr Deshpande, noting the applicant is not keen on surgery.
On 1 August 2024 the applicant was still experiencing significant low back pain as well as bilateral lower limb pain, consistent with an L5 radicular distribution. She currently has no work capacity. The MRI scan shows left L4/5 lateral recess stenosis with a degree of compression of the left L5 neve root at that point.

Treating general practitioner reports

Dr Tawadros reports on 16 June 2024 that the applicant has a lower back injury due to repetitive lifting, bending and prolonged standing at work, for which work was the main contributing factor. She continues to work but struggles with the pain.
The diagnoses are lumbar spine disc disease at L4/5 with lateral recess narrowing with L5 impingement and degenerative disc disease at L3/4 and L5/S1, adjustment disorder and weight gain.
Dr Mo reports on 2 August 2024 that the applicant sustained a lower back injury due to repetitive lifting, bending and prolonged standing at work with work the main contributing factor for the injury. As a result of her chronic pain and functional limitations her psychological condition has deteriorated and she has developed an adjustment disorder.
Dr Lim reports on 9 September 2024 that the applicant is unfit for work as a result of back dysfunction and flareup of pain. The diagnoses are lumbar spine aggravation, disc disease, adjustment disorder and weight gain.
Dr Lim notes the applicant has sustained a lower back injury due to the repetitive nature of her physical work involving repetitively lifting and manoeuvring trolleys. Her work over many years was the main contributing factor for the deterioration of her lumbar spine condition.
As a result of her chronic pain and functional limitations, her psychological condition has deteriorated and she has developed an adjustment disorder.
Dr Forugh Mohammadi reports on 10 December 2024 that he referred the applicant to Dr Tait considering her longstanding symptoms of back pain and she was not responding to conservative management.
When Dr Mohammadi examined the applicant on 5 December 2024 he saw she was significantly physically and mentally affected by back pain.
The diagnosis is mechanical back pain with radiculopathy (evidence of L5/S1 nerve roots irritation) and the applicant’s employment with the respondent is the cause of her symptoms. She is significantly incapacitated and is not fit for any work.
Dr Mohammadi recommends follow up with Dr Tait for further management. Surgery might be one of the options to be considered.

Dr Louise Ereve, independent psychiatrist

Dr Ereve, qualified by the applicant, provides a report dated 19 September 2024.
Dr Ereve diagnoses adjustment disorder, consequential from the workplace injuries sustained while working for the respondent.
Dr Ereve does not feel the applicant is able to work or undergo occupational rehabilitation in any form, and she is unable to work for 12 months.

Mr Carl Neilsen, treating psychologist

Mr Neilsen reports on 26 September 2024 that the applicant has been rendered unable to work due to her work-related stressors and psychological symptoms.
The symptoms are anxious and depressive cognitions, sleep disturbances, rumination, irritability, feelings of helplessness and hopelessness, poor concentration and fatigue.
Mr Neilsen diagnoses adjustment disorder with depressed and anxious mood due to her work-related injury, and her employment was the main contributing factor to her sustaining that condition.

Certificates of capacity

As a result of her lumbar spine disc disease, adjustment disorder and weight gain, Dr Lim, Dr Mo and Dr Koong of Workers Doctors certify the applicant as having:
(a)    some capacity for work for normal hours and days between 4 June 2024 and 2 July 2024 with restrictions;
(b)    no current capacity for work between 16 July 2024 and 22 August 2024;
(c)    some capacity for work for eight hours a week between 8 August 2024 and 12 September 2024 with restrictions;
(d)    no capacity for work between 9 September 2024 and 9 December 2024, and
(e)    no capacity for work between 13 November 2024 and 13 February 2025.
The clinical records of Workers Doctors and of the Currajong Medical Centre are with the application.
The insurer’s Payment Summary includes 10 wage payments made between 4 June 2024 and 25 August 2024 totalling $8,149.97.

Respondent’s evidence

The respondent relies on its dispute notices, the reports of A/Prof Miniter, the clinical records of the Currajong Medical Centre, Dr Tait’s reports, and the Worksite Investigations report of 19 July 2024 attached to the application and referred to above.
The Australian Health Practitioner Regulation Agency (APHRA) registration details of A/Prof Miniter as at 11 February 2025 are attached to the reply.
The file review of A/Prof Miniter dated 18 March 2025 is also discussed above.

Applicant’s submissions

The applicant made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.
The applicant’s claim is for a disease injury to the lumbar spine with deemed date of 2 June 2024. It may be that the applicant ceased work on 24 June and the deemed date of injury may be that date.
The injury is pressed as a disease injury which is an aggravation, acceleration, exacerbation or deterioration of the applicant’s lumbar spine disease in the course of employment and the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration in accordance with s 4(b)(ii) of the 1987 Act.
The applicant’s submission is that the medical opinions support that finding.
The applicant refers to the following in her statement of 2 October 2024:
(a)    the work was repetitive;
(b)    there are times when they are short-staffed and her duties were increased;
(c)    her tasks included food preparation, loading trays and loading trolleys such as those shown in the photographs with the ARD, and involved bending and stooping and movements of twisting the trunk and pushing the trolley, and the trays were then collected and stripped;
(d)    the trolleys were old and poorly maintained making them difficult to push;
(e)    she moved bottles of 12 bottles water contained in packs of 30 to 40;
(f)    the applicant acknowledges she had prior incidents including in September 2017 when she twisted her back in a non-work related situation;
(g)    over eight years the employment conditions strained her back, which became worse in the last three years;
(h)    there was a flare up in 2021 and she then had continuous discomfort in her lower back with radiation to the legs which she believed was connected to the employment;
(i)    she continued to work and tried to push through with investigations and treatment working normal hours and duties;
(j)    in 2024 she had some further difficulties and despite trying to push through she gets to a point where she can no longer continue and she lodges a claim on 2 June 2024;
(k)    she is diagnosed with a consequential psychological condition, and
(l)    her last day of work is 24 June 2024 and she has not worked since.
The pain the applicant reports in February 2024 is the same as the pain she has experienced over that period of time. There is no separate distinct injury, it is all part of the one claim that is brought for this period of time.
The applicant’s back pain is as a result of the nature of her employment and her pre-existing degenerative condition has been aggravated, exacerbated and has deteriorated as a result up until June 2024 when she ceases work.
The applicant complains of back pain in 2012. The clinical records of the Currajong Medical Centre include on 12 July 2012 “2 weeks ago low back pain… advised muscular, subjectively much improved… has been back at work”.[2] A/Prof Miniter refers to this in relation to complaints of back pain.
[2] ARD page 315.
On 26 July 2012 the entry is “back pain remitted”[3] so there is no reporting of consistent back pain from 2012.
[3] ARD page 314.
The applicant’s submission is that the nature of the back pain has changed and the symptoms were different in 2012, which is supported by the clinical records and is consistent with what is reported not only to the treating doctors but also the relevant experts including Dr Pillemer.
On 15 September 2017 there is reference in the clinical records to the applicant twisting her back while shopping and having had chronic back pain for three years on and off.
It is intermittent in nature in the applicant’s submission, and the claim is brought for the aggravation of her pre-existing back condition, with work the main contributing factor to the aggravation.
The applicant’s complaint of worsening back pain for the last eight weeks is made to Dr Ann Kamil on 25 August 2021 with bilateral nerve pain more in the right leg.
The leg symptoms are not something that has been recorded in the prior entries.
After this period there is consistent reporting of weight gain issues and back pain including:
(a)    on 27 October 2021 Dr Kamil records recurrent pain, physiotherapy for back strengthening, avoid lifting and pain medication;
(b)    on 7 December 2021 Dr Kamil notes worsening back pain;
(c)    on 15 February 2022 Dr Kamil records weight gain, and
(d)    on 12 March 2024 Dr Mohammadi records the back pain is much worse.
Dr Mohammadi takes over treatment of the applicant. In his report of 10 December 2024 he details the history in relation to the injury, that there was back pain radiating to her lower extremities from three years ago, and noting the back pain in 2012 did not involve back pain radiating to a lower extremity.
Having access to the historical records and examining the applicant most recently on 5 December 2024 Dr Mohammadi’s opinion is that the applicant’s employment is the cause of her present symptoms and she is significantly incapacitated and not fit for any work.
Dr Tait deals with the applicant’s presentation, investigations and treatment but he does not deal with causation of her condition.
On 9 September 2024 Dr Lim refers to the type of back pain the applicant has reported since 2021, and the nature of her work including repetitive lifting, bending and prolonged standing. Dr Lim also refers to her psychological symptoms. Dr Lim provides his opinion on causation with work the main contributing factor. She is unfit for work.
Dr Tawadros also gives his conclusion on the causation of the applicant’s medical injury as the repetitive lifting, bending and prolonged standing at work, which is the main contributing factor to the injury. Dr Mo provides the same conclusions on 2 August 2024.
Dr Chang Deng, psychologist, reports on the development of the consequential psychological condition on 8 August 2024.
The clinical records of Workers Doctors between June and August 2024 note worsening pain, not coping with work, persisting with work but having to take days off due to increased pain and then being unable to cope with work at all.
Mr Neilsen, the applicant’s treating psychologist, reports on the consequential psychological injury and that the applicant is unfit for work duties.
On 10 December 2024 Dr Mohammadi refers the applicant for opinion and management of her symptoms of depression for the last few months, with her chronic back pain the main contributing factor for worsening of her symptoms.
Dr Ereve diagnoses adjustment disorder that has arisen as a consequence of the physical injury, and that she has no capacity to work.
There are no other psychological medical expert reports or opinions regarding the consequential condition in evidence.
If a finding is made that the applicant has sustained a lumbar spine condition as a result of employment there would be a flow on finding of a consequential psychological condition.
This is relevant to treatment and to the applicant’s capacity to work.
The Certificates of Capacity with respect to the lumbar spine condition from repetitive lifting and manoeuvring trolleys and the adjustment disorder certify some capacity with restrictions on 8 August 2024. By 9 September 2024 there is no capacity for work up to 13 February 2025.
The position description for the applicant’s role includes as physical demands frequent standing, frequent walking, occasional bending/leaning forward from the waist, occasional trunk twisting, frequent lifting/carrying up to 9kg, occasional lifting/carrying between 10 and 15kg and infrequent lifting/carrying 16kg and above.
This does not say it does not occur or that it is rare, it is still included there. This is consistent with what is reported by the applicant in her statement and to the various treating practitioners and Dr Pillemer.
It is consistent with what has been taken into consideration by those medical experts reaching their view that the deterioration of her pre-existing lumbar spine degenerative condition is due to the nature of her work duties, which has been the main contributing factor to the deterioration.
The physical demands also include frequent pushing/pulling/restraining and frequent repetitive hand and arm movements.
The applicant emphasises the following regarding Dr Pillemer’s reports:
(a)    he notes that at times the applicant’s work can be heavy;
(b)    discomfort developed in the lower lumbar region and she was also aware of referred pain down her left lower limb;
(c)    the nature of her work included loading trolleys, pushing and pulling trolleys, and lifting boxes following deliveries that could weigh up to 15kg, as in the position description;
(d)    her symptoms have continually gotten worse with increased pain, and there was the incident in February 2021 when she attended the emergency department, confirmed by the hospital records;
(e)    his conclusions and diagnosis based on his examination is there is evidence of nerve root involvement being radiculopathy;
(f)    the employment is the cause of her present symptoms, and
(g)    she is not fit for any work.
Dr Pillemer notes his opinion differs from A/Prof Miniter and it is the details regarding physical symptoms Dr Pillemer found on examination that results in the variation in their opinions.
In his report of 27 December 2024 Dr Pillemer maintains his view regarding causation of the applicant’s condition. He again sets out that it is possible the differences on physical examination of the applicant has resulted in the differences of opinion between the two experts.
A/Prof Miniter takes a history of the development of pain in 2021 but that the applicant said there was no specific injury. In “Other History” A/Prof Miniter states he looked carefully at the investigations and the notes from the general practitioner, which one would assume is Currajong Medical Practice, and says there is a definite history of long term back pain and he refers to the entry in 2012.
The applicant submits there was an abatement of symptoms in 2012 and this is vastly different from what is recorded in 2021, following which there is an increase and continued reporting of difficulties regarding the lower back resulting in the inability to continue working.
A/Prof Miniter does not grapple with that history the applicant submits. Rather he takes a broad brush approach which infects his opinion in this and his subsequent reports.
There are comments made about medical practitioners and he steps into an adversarial position rather than that of an independent medical expert.
A/Prof Miniter notes a number of non-physical signs. The tone throughout this report is one of non-belief and the impression is that he has come to this examination from the get-go with non-belief of any injury existing.
The comment made that the nature and conditions of employment have been convincingly dissociated from the workplace is not explained, nor is the comment that there cannot be any workplace involvement because the symptoms continue when the applicant ceases work.
This is not supported by other medical experts who do not find that symptoms continuing when work ceases mean it cannot be a work injury.
A/Prof Miniter’s diagnosis of abnormal illness behaviour, his comments that there is no clear explanation for her presentation, no obvious cause of her back pain, no evidence of an injury associated with her employment which is not a main contributing factor, and there is no explanation for her severe disability, are bare statements made without any detail or explanation the applicant submits.
Other than with respect to the applicant’s capacity to work, A/Prof Miniter is the outlier.
His opinion changes in his supplementary report, which does not involve a re-examination of the applicant. One of the documents he is provided with is the Worksite Investigations report.
A/Prof Miniter says the nature of the applicant’s work involves no heavy lifting which the applicant submits is not consistent with the position description, the applicant’s reporting or the various general practitioner reports as well as Dr Pillemer’s reports.
It is not just heavy lifting involved in her duties, there is the repetitive nature of the bending, twisting, standing and walking pushing the trolley. It is all of these components and the nature of the duties together.
A/Prof Miniter now gives a diagnosis of mechanical back pain although he criticises Dr Lim for noting he did not identify causation for her back pain in his previous report.
A/Prof Miniter does not change his opinion that there is no evidence of an injury associated with her employment or that there is no aggravation to the lumbar spine associated with her employment for reasons he has given previously. The applicant submits that no reasons or no adequate reasons were given previously.
No explanation is provided as to why A/Prof Miniter changes his opinion on the applicant’s capacity to work and full time. He has not examined the applicant since 8 August 2024.
In his final report A/Prof Miniter comments that the applicant’s employment has been assessed independently and not found to be associated with repetitive and heavy lifting, while still providing no real assistance on that view.
The applicant’s submission is that A/Prof Minter is the outlier regarding this injury and the issues in dispute. He is the only one who initially finds nothing and provides no explanation for the symptoms, although he agrees at that point there is no capacity. Later without examination he says there is mechanical back pain which is not attributable to work and she can work full time.
The applicant submits that when looked at as a whole, minimal or no weight would be given to A/Prof Miniter’s opinion as a result of:
(a)    the varying nature of his opinion without explanation and without reassessment of the applicant;
(b)    failing to fully grapple with the nature of the injury that is claimed and with the nature of the duties performed, and
(c)    not providing reasons for his opinion that the employment was not the main contributing factor to the aggravation or deterioration of the lumbar spine condition.
The records on balance satisfy on the balance of probabilities that the applicant sustained an injury pursuant to s 4(b)(ii) of the 1987 Act in the course of her employment with the respondent and the nature of her duties with the employment is the main contributing factor.
The treating doctors and Dr Pillemer all agree and A/Prof Miniter is the outlier in this case.
A finding of a lumbar spine injury leads to a finding of a consequential psychological injury on the evidence.
Flowing from that the Commission would be satisfied that the applicant has had no capacity to work at all from August 2024 to date.
There was a time when general practitioners thought she had some capacity to work but that was light duties and the applicant says that is not real work even in that short period, so that there was no work capacity within the meaning of the Act. Payment would then be at the full entitlement of 80%.
From the list of payments it seems that there have been 10 weeks of payments made so that there is an entitlement to three weeks at 95% of pre-injury average weekly earnings (PIAWE) which is agreed, and then under s 37 subject to indexation.

The applicant seeks a general order for medical expenses that would flow from the finding of injury.

Respondent’s submissions

The respondent made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.
The respondent’s submission is that based on a careful analysis of the applicant’s statement, the factual report and photos, and the evidence from the respondent statements, the work would not be described as either heavy or repetitive.
The opinions provided by a number of the doctors for the applicant rely on a history that is not provided by the applicant in terms of weights she lifted, and this history is specifically refuted by the respondents in terms of weights when lifting things.
The actual weights relied on by the doctors in providing their opinion does not amount to regular lifting of heavy weights.
The work would also not be called repetitive as different things are done at different times followed by breaks and alternating duties so this is in fact light work.
The applicant’s medical opinions are not provided in a fair climate as a result and they are riddled with inaccurate histories and the inaccurate characterisation of the work and so should not be accepted.
Ultimately A/Prof Miniter’s opinion would be accepted as he is the only one that has specifically viewed the respondent’s factual report.
The respondent emphasises the following from the applicant’s statement;
(a)    she describes her work as repetitive however how the work is divided up is not repetitive, there are breaks and there is job rotation and she has help;
(b)    her work preparing sandwiches, plating desserts, attending to patients, recording their meal orders along with diet codes and allergens could not be considered to be heavy;
(c)    how plating meals on to trays and placing them in 16-tray or 24-tray trolleys involving bending and stooping strains the back is not explained, and the photos show it is possible the applicant had to bend down partially to put the trays on the lower levels but most of them have easy access to put them in from an upright position;
(d)    the trolleys were fitted with four rubber wheels and pushed along a vinyl floor and would be done easily, she has a lifting device that moves the trays on a vinyl floor with limited restriction, and each meal weighs about half a kilogram;
(e)    the trolleys are transferred to wards including the inpatient unit which is about 100 metres from the kitchen and she is delivering one tray to a particular patient at a time;
(f)    stripping the trays after breakfast involves removing foodstuffs and utensils from the trays while standing and placing rubbish in the bin under the sink, and each meal is returned eaten or partially eaten so they would weigh much less, which is on the outer edge of light duties;
(g)    the two large trolleys of water bottles weekly containing 30 to 40 packets of 12 bottles has no information about the weight or whether there was someone to help her or not and it is done weekly. There is no evidentiary basis in the statement to support a finding of how heavy these particular boxes of water are that has been relied on by her doctors to provide opinions on causation;
(h)    she also lifted heavy boxes of cold food items into the fridge lifting them and there is no quantification of how heavy the boxes were or how frequently she had to move them, and
(i)    after stripping trays she prepared morning tea and pushed a smaller trolley to serve it, and again there is job rotation and these duties would not be considered to be heavy, they are extremely light and not repetitive requiring delivering to each patient, and she follows the same procedure for preparing and delivering lunch.
The Worksite Investigations report has a photo depicting a trolley. Some of the trolleys are at waist height and some are slightly higher at shoulder height. There would only be bending and stooping for perhaps half of them to load a tray which weighs half a kilogram.
The applicant would return to the kitchen after her morning tea break for 20 minutes and uplift the empty meal trays which are even lighter, and replace them into the trolley.
Stripping the trays was rotated with her co-worker. One would remove the items from the tray and place the debris into the buckets on the sink and bins under the sink while the other washed up.
A smaller trolley depicted in a photograph in the factual report is used for serving morning tea, a much lighter task. The vinyl floor the respondent submits is flat and easy.
On delivering lunch meals at 12.00pm the applicant would take her meal break for 30 minutes and return to the wards, uplift the lunch trays and return to the kitchen pushing the trolley.
The respondent’s submission is that this is extremely light work with job rotation and sufficient breaks. It is not heavy or repetitive work.
Carolyn Pearce’s statement includes that the heaviest task in the kitchen area is lifting slabs of water which is described as 12 by 600ml bottles weighing about 7.5kg. The respondent submits this is a much more accurate piece of evidence.
This does not amount to the conclusion contained in the applicant’s qualified evidence of the duties and opinions on causation.
The respondent’s submission is that the duties would not be considered heavy or repetitive and aside from Ms Pearce’s description there is no other satisfying evidence of heavy work.
Ms Robinson says the applicant complained about back pain and said it was getting worse, at the time she did not attribute it to any activity at work, and she never complained about the nature of the work. This is consistent with the earlier treating evidence.
Dr Rahim records on 21 March 2017 the reason for contact is back pain and muscle spasm and her lower back pain which was worse over the last few days. There is no history of heavy lifting, pushing, pulling and no work-related injury is noted.
The applicant has been doing the same job since 9 May 2016 and she is providing a history to the general practitioner that her duties do not involve heavy lifting, pushing or pulling and it is not a work related injury.
That is consistent with all the remaining references up until 2024 when the applicant refers to back pain to numerous treating practitioners. Not one says it is due to her work, that the work is heavy and repetitive and she is not certified for suitable duties to protect her back. None of them seek to amend her duties because they are said to be causative of her back pain for example.
The respondent noted records made on 15 September 2017 from twisting her back while shopping, on 25 August 2021 when a reference to back pain is made with no reference to her work, the referral for the CT lumbar spine on 26 August 2021 for persistent lower back pain for eight weeks and bilateral neuropathic pain to both legs with no reference to work, on 6 September 2021 the CT scan was discussed, and there are several more similar records made on 7 December 2021, 10 August 2022, 17 March 2023, 19 June 2023, 12 September 2023, 11 October 2023, and she is referred for an epidural on 8 November 2023.
In all of these records the applicant is not saying her work has heavy and repetitive lifting and she needs a certificate to downgrade her duties to change to suitable duties, and this is on a background of back pain since 2012 and the non-work related incident in 2017.
The respondent’s submission is that this is a clear continuation of a pre-existing back problem consistent with the applicant not doing duties that are heavy or repetitive.
Dr Mohammadi in all those times referred to above has not done what you would expect a doctor would do which is to tell her she needs to amend her duties and provide a certificate of capacity. His subsequent opinion supports those duties as causing her back pain over this period.
Dr Pillemer describes the nature of the applicant’s duties including lifting boxes of water up to 15kgs which has been directly refuted by the respondent.
Dr Pillemer does not go on to say it is the repetitive nature of her job that caused her condition and only relies on very heavy lifting at times.
Dr Mohammadi takes a history that the applicant informed him that her work was heavy at times requiring her to do repeated bending, heavy lifting, pushing and pulling heavy objects. There is no evidence of pushing and pulling heavy objects unless that is referring to the trolleys.
Heavy lifting is simply not borne out on the evidence and there is not a fair climate to categorise the applicant’s work in this way.
Dr Mohammadi also refers to the applicant sustaining a lower back injury due to repetitive lifting, bending and prolonged standing at work and there is no consistent evidence of repetitive lifting.
A/Prof Miniter provides his opinion at first, and without the factual report, that there is no explanation for the back pain and it is certainly not caused by the workplace as the nature and conditions of employment have been convincingly dissociated from the workplace.
A/Prof Miniter reviews the factual report and in his next report he comments on Ms Robinson’s statement and the fact that no heavy lifting is involved. Ms Robinson also notes that at the time the applicant did not attribute the pain to any activity at work. This is consistent with the reports of back pain in the clinical records.
Putting together the long history of back pain, the failure of the applicant or any of the treating doctors to report that it is due to work, and the specific denial in the treating records that it is due to work, and that there is no heavy lifting, with a proper analysis of what she actually does at work, you would not be satisfied there is a fair climate to accept opinions relied on by the applicant.
A/Prof Miniter’s opinion should be accepted. A/Prof Miniter has properly reviewed the factual report and properly linked his conclusions in respect of injury.
There should be an award for the respondent in respect of injury to the lumbar spine, and it follows an award in respect of the psychological condition, incapacity and the general order sought in respect of medical expenses.

Applicant’s submission in reply

The respondent’s submission is that each meal weighs half a kilo and that is light however there are 24 trays on the trolley shown in the photographs so that would be 12kg the applicant is pushing around the hospital.
Dr Lim does not deal with heavy lifting. The history he takes is of repetitive lifting, bending and prolonged standing at work, not heavy repetitive lifting, bending and prolonged standing.
That is consistent with the position description and what is described not only by the applicant but by the co-workers.
Regarding causation the applicant is not a medical practitioner. Her view that the injury is because of the nature of work over the years is not something that can be given great weight. The applicant can give evidence only as to the development of her symptoms and the nature of her employment duties.
No criticism ought to be made of the applicant for pressing on with her work. She is trying to get on with her work while she has an injury and she seeks treatment without pressing it as a workers compensation claim. She ought not be disadvantaged on that basis.
It is not until the medical experts form an opinion that this a work injury that the claim is made.
Caution ought to be taken regarding the clinical records especially by busy treating practitioners. The absence of being attributable to a work injury previously until medical experts have reviewed the whole situation does not displace that opinion on causation. It is not for the applicant to give that opinion on causation as she is not a medical expert.
The applicant should also not be criticised for not complaining to her co-workers, bearing in mind one is a supervisor and the other is a co-worker in the kitchen. The factual report indicates there has been some previous incidents and there may be some issues between those two workers.
This may lead to drawing a reasonable inference as to why the applicant may not go to that person to report what she is going through, and she may believe her pain is personal.
Ms Pearce details at least one occasion where the applicant reported her difficulties in regard to her lower back that she attributed directly to pushing the trolley, resulting in a sore back and time off work, and then the applicant soldiered on and got back to work after that.
With respect to the respondent’s submission that the work could not be found to be repetitive, Ms Peace states that the work of a repetitive nature as does Ms Robinson.
This is consistent with what Dr Lim is told and with the balance of the evidence.
The photograph of the workers stripping trays shows one person stooping from the lower back. This again is supportive of what the applicant says about repetitive bending and there is obviously twisting and lifting there as well.
The respondent contends that it would be light work so that no one could accept it as heavy. The trolleys being pushed weigh at least 12kg and the boxes of water are at least 7.5kg in the 12 bottles and the applicant’s evidence is there are 30 to 40 of those.
The submission that because there are breaks the work is not repetitive cannot be accepted and that finding cannot be made when even the employee statements the respondent has provided state their view that the nature of the work is repetitive.
The position description includes repetitive work with lifting up to 9kg and standing described as frequent, lifting up to 15kg occasionally, and infrequently even up to 16kg and above.
The work is repetitive in nature including prolonged standing, frequent bending and twisting including frequent and repetitive lifting, as well and pushing and pulling trolleys, and on balance the medical evidence supports that view of the nature of the employment and the symptomology including the pre-existing symptoms.

Respondent’s additional submission

The clinical records on 15 September 2017 do not support the back pain later on being of a different type. Here the record is made that the applicant has had chronic pain for three years on and off prior to 2017.
The pain is also recorded as being at multiple sites and it radiates from the right lower leg to her lower back. The pain is moderate to severe and is rated as five out of ten by the applicant.

FINDINGS AND REASONS

The applicant sustained a lumbar spine injury in June 2024

The applicant bears the onus of proving she sustained an injury on the balance of probabilities, and the issue of causation must be determined based on the facts in each case on a common sense evaluation of the causal chain.[4]
[4] Kooragang Cement Pty Ltd v Bates 10 NSWCCR 796.
Section 4 of the 1987 Act defines “injury” as follows:
“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...”
It is not in dispute that the applicant suffers with lumbar spine disease.[5]
[5] ALAD page 2.
Under s 4(b)(ii) the employment must be the main contributing factor to the aggravation of the disease, and not the main contributing factor to the contraction of the disease itself.[6]
[6] Cant v Catholic Schools Office [2000] NSWCC 37.
What constitutes an aggravation of a disease process was discussed by Windeyer J in Federal Broom Co Pty Ltd v Semlitch; “[t]he question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient”.[7]
[7] [1964] HCA 34; 110 CLR 626.
Dr Pillemer’s opinion is that the applicant’s employment has been the main contributing factor to the aggravation of an underlying degenerative condition at the L4/5 level and A/Prof Miniter’s opinion is that there is no evidence of a lumbar spine injury associated with the employment.
The respondent submits that the long history of the applicant’s back pain, the failure of the applicant and her doctors to report that it is due to work and in fact deny that in the records, and that the applicant’s duties were not repetitive and did not include heavy lifting means there was not a fair climate for the opinion Dr Pillemer expresses.[8]
[8] Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85).
Having considered all of the evidence I have come to a different conclusion. I accept the history recorded by Dr Pillemer, while not corresponding with complete precision to the applicant’s statement evidence particularly regarding the weight she was required to lift, is sufficiently like that evidence so as to represent a fair climate.

History of back pain

The applicant’s evidence is that prior to her employment with the respondent she was employed as a nursing home assistant and as a cleaner.
Dr Scally, her general practitioner at the time, recorded on 12 July 2012 that the applicant reported low back pain two weeks ago, she was advised it was muscular, there were no radicular symptoms, subjectively it was much improved and she was back at work as a house cleaner.[9]
[9] ARD page 315.
On 26 July 2012 Dr Scally recorded “back pain remitted.”[10]
[10] ARD page 312.
The applicant was employed by the respondent from May 2016.
On 21 March 2017 Dr Rahim records back pain for the last few days and muscle spasm, and “no history of heavy lifting, pushing, pulling, no work related injury”.[11]
[11] ARD page 303.
On 15 September 2017 the general practitioner records the applicant had a sudden movement and twisted her back while shopping three weeks ago, she said her back pain was not work related and she would not claim it as a work-related injury. She had had chronic back pain for three years on and off.
The pain was recorded as being at multiple sites, and sharp pain radiated from her right lower leg to her lower back. The applicant was noted to have full range of lumbar movement and “raise leg both sides intact”. [12]
[12] ARD page 304.
The next record made by Dr Kamil on 25 August 2021 is of worsening back pain for the last eight weeks with bilateral nerve pain more in the right leg, and she was sent for CT scan.[13]
[13] ARD page 291.
Although there is a report of pain in the applicant’s right leg in 2017, I accept the applicant’s submission that her back pain was intermittent until 2021 when it became worse and constant.
The applicant’s history of back pain is consistent with the aggravation of that condition in her employment, including the flare up in 2021 and the incident she describes at work in February 2024.

Failure to report work injury

It must be acknowledged at the outset that inconsistencies between the applicant’s evidence and the history recorded by the treating general practitioners at the Currajong Medical Centre should be treated with caution for the reasons discussed by Basten JA in Mason v Demasi.[14]
[14] [2009] NSWCA 227 at [2].
She regularly reported her back pain to her treating general practitioners from 2021 when the condition flared up. There is no record made of discussion about the cause of her worsening back pain or why it was not abating.
The applicant reported her back pain to Ms Pearce in February 2024 when she pushed a trolley into the emergency department and suffered intense back pain, and she made a formal report of that incident in March 2024.
The applicant’s evidence is that Dr Tait referred her to Dr Lim who deals with workers compensation matters and she first consulted him in June 2024.

I accept the applicant is not in a position to diagnose her condition or provide an opinion on its causation.
In the circumstances the failure to report her worsening back pain as a work injury does not in my view result in an unfair climate for Dr Pillemer’s opinion.

Repetitive work

The applicant describes her work providing meals to patients as repetitive, involving bending and stooping which strained her back, and with constant standing, walking and movement.
The evidence of Ms Pearce and Ms Robinson confirms the nature of the applicant’s duties generally, and that the work was repetitive and required constant standing.
Ms Pearce says the applicant sat during her morning tea and lunch breaks, when writing up menus and when she was provided with a chair to make sandwiches after complaining that pushing a trolley hurt her back.
The position description for Hospital Assistant Grade 2 – Catering confirms the role requires frequent standing, walking, lifting/carrying of up to 9kgs, and pushing/pulling/restraining.
Dr Lim reports the applicant’s job involved repetitively lifting and manoeuvring trolleys, with repetitive lifting, bending and prolonged standing. Dr Mo and Dr Tawadros report the applicant’s work involved repetitive lifting, bending and prolonged standing.
The respondent’s submission that bending and stooping to load perhaps half the trays weighing half a kilogram each into the trolleys is not repetitive lifting, bending and prolonged standing cannot be accepted. It is my view that as the applicant carried out this task two to three times in each shift it is evidence of repetitive lifting, bending and prolonged standing.
Ms Pearce describes the applicant’s work as varied and alternating from shift to shift with one worker making up sandwiches at the commencement of the shift and the other worker setting up trays. Ms Robinson describes sharing tasks of emptying the wheelie bin and washing up in the morning alternating with stripping and washing up at lunch time.
I do not agree with the respondent’s submission that taking morning tea and lunch breaks and rotating duties with the other hospital assistant during each shift detracts from a finding that the applicant’s duties were repetitive.
I accept the applicant’s work was repetitive, involving lifting, bending and prolonged standing.

Heavy work

The applicant’s evidence is that heavy lifting was a major part of the job. The respondent submits that the applicant’s work was not heavy.
While many of the applicant’s duties were not heavy as the respondent submits, I find for the reasons below that at times her duties were heavy.
Dr Pillemer describes the nature and conditions of the applicant’s employment over a number of years as being very heavy at times, for example lifting boxes following deliveries weighing up to 15kg on a regular basis and pushing very heavy trolleys loaded with three layers of water bottles which often required considerable effort to pull and push.
The evidence supports the history the doctor records of pushing trolleys loaded with three layers of water bottles twice each week as heavy work.
The applicant’s evidence is that her duties included moving two large trolleys of water bottles weekly containing 30 to 40 packs of 12 bottles, with the trolleys difficult to push and requiring her to use awkward postures.
The applicant does not estimate the weight of the packs of bottles. Ms Pearce’s evidence is that the applicant’s heaviest task was lifting slabs of water of 12 bottles each of 600ml, weighing about 7.5kg.
The applicant loaded two large trolleys weekly of 30 to 40 packets of 12 bottles, and with each slab weighing approximately 7.5kg the weight loaded into each trolley is in my view heavy.
The applicant describes the trolleys as difficult to push, requiring her to use awkward postures to move them through the kitchen.
There is evidence the applicant had difficulty pushing and manoeuvring trolleys.
The applicant reported an incident on 10 February 2024 when she pulled a trolley into the emergency department and felt a pull in her back.
Ms Pearce says the applicant made a general complaint that when she was pushing a trolley it hurt her back, following which she had her rostered week off, but otherwise she made no report of any incident at work whatsoever.
Ms Robinson says the applicant complained in June 2024 that the rubber had detached from one of the wheels of a trolley. Ms Robinson immediately contacted maintenance and the wheel was repaired, and in fact all four wheels were replaced as an upgrade.
As the respondent submits, photographs with the Worksite Investigations report show trolleys being pushed on flat vinyl floors.
The evidence however supports a finding that the applicant at times had difficulty pushing and manoeuvring the trolleys as discussed above.
In her statement the applicant says she lifted heavy boxes of cold food items into the fridge, requiring lifting them from low to high positions.
She makes no estimate of the weight of the boxes of cold food items, and I accept the respondent’s submission that there is no other evidence that identifies their weight.
Ms Pearce and Ms Robinson do not appear to have been asked this question.
The position description includes as physical demands occasional trunk twisting, occasional lifting/carrying from 10 to 15kg, infrequent lifting/carrying of 16kg and above, with frequent pushing/pulling/restraining. This anticipates that some of her duties may involve lifting boxes of up to 15kg.
In light of the position description and the applicant’s statement evidence I am satisfied to accept the boxes of cold food items were heavy but I am unable to accept a particular weight of the boxes based on the evidence.
I otherwise find that the facts on which Dr Pillemer has based his opinion are sufficiently like the facts established so that there is a fair climate, and I accord his opinion weight accordingly.
Dr Pillemer’s opinion is that the applicant’s employment was the main contributing factor to the aggravation of an underlying degenerative condition at the L4/5 level and I accept that opinion.
I accord less weight to A/Prof Miniter’s opinion for the following reasons.
The main difference between the two expert opinions Dr Pillemer says is his finding of radiculopathy on examination, and he comments that A/Prof Miniter does not mention carrying out any sensory testing.
A/Prof Miniter has no explanation for the applicant’s claimed severe disability although he does not believe it is related to the workplace. In A/Prof Miniter’s opinion discomfort such as hers is found not to be associated with workplace conditions. This view is not consistent with the other medical evidence in the case.
A/Prof Miniter’s opinion that the applicant’s back pain is certainly not caused by the workplace as the nature and conditions of employment have been convincingly dissociated from the workplace appears to be based on speculation or unsubstantiated assumptions and is not accepted.
I also do not accept that a lack of improvement in the applicant’s symptoms after ceasing work would lead to a conclusion that her condition was not aggravated by her employment, and note there is no support for this opinion in the other medical evidence.
The diagnosis made of an unusual abnormal illness behavioural pattern in the absence of proper and cogent reasons also appears as a bare ipse dixit.[15]
[15] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43.
In A/Prof Miniter’s most recent opinion “[w]hilst the worker claims that her work has been heavy and repetitive, this is not borne out by the independent evaluation of the matter.”[16]
[16] ALAD page 4.
The independent evaluation of the nature of the applicant’s work is not specified, however I understand this to be a reference to the Worksite Investigations report.
I have found the characterisation of the applicant’s work contained in her statement and the statements of Ms Pearce and Ms Robinson support a finding that her duties were repetitive and heavy at times, and A/Prof Miniter’s opinion carries less weight as a result.
There is no evidence of other causal factors to the aggravation of her lumbar spine disease.
On consideration of all of the evidence I find there is an aggravation, acceleration, exacerbation or deterioration of the applicant’s lumbar spine disease, and her employment with the respondent was the main contributing factor to that aggravation, exacerbation, acceleration or deterioration.
Applicant’s counsel referred to the deemed date of injury. The List of Payments shows an initial payment of weekly compensation was made for the period commencing 4 June 2024. On the basis this is the time of the applicant’s incapacity, the deemed date of injury is 4 June 2024 in accordance with s 16(1)(a)(i) of the 1987 Act.

The applicant has sustained a consequential psychological injury

As I have found the applicant has sustained an aggravation, exacerbation, acceleration or deterioration of her lumbar spine disease and the employment was the main contributing factor to that aggravation, I find that she has sustained a consequential psychological injury.
The evidence of Dr Deng, Mr Neilsen and Dr Ereve supports this conclusion and I note there is no evidence to the contrary.

The applicant is entitled to weekly compensation

The applicant is entitled to the payment of weekly compensation if total or partial incapacity results from an injury pursuant to s 33 of the 1987 Act.
Certificates of capacity certify the applicant as having some work capacity with restrictions for eight hours a week between 26 August 2024 to 8 September 2024, and from 9 September 2024 to 13 February 2025 as having no current work capacity. There is no evidence that suggests the applicant’s work capacity has changed from 14 February 2025.
The applicant claims weekly compensation from 26 August 2024 to 31 August 2024 pursuant to s 36 of the 1987 Act, and from 1 September 2024 to date and continuing pursuant to s 37.
The List of Payments however shows weekly payments were made pursuant to s3 6 for 10 weeks to 25 August 2024, leaving three weeks payable pursuant to s 36 to 16 September 2024, and thereafter pursuant to s 37 (subject to indexation).
The applicant’s PIAWE is calculated at 12 June 2024 as $1039.26.[17]
[17] ARD page 37.

There will be an order that weekly compensation be paid from 26 August 2024 to date and continuing at PIAWE of $1,039.26 subject to indexation and subject to rounding in accordance with s 82D of the 1987 Act.

The applicant is entitled to the payment of medical expenses

As a result of her injuries the applicant is entitled to receive payment from the respondent of reasonably necessary medical or related treatment expenses; s 60 of the 1987 Act.
There will be a general order for payment of reasonably necessary medical or related expenses that result from the applicant’s lumbar spine injury and consequential psychological injury.

SUMMARY

The applicant suffered an aggravation, acceleration, exacerbation or deterioration of her lumbar spine disease, and her employment with the respondent was the main contributing factor to that aggravation, exacerbation, acceleration or deterioration within the meaning of s 4(b)(ii) of the 1987 Act.
The applicant has sustained a consequential psychological injury as the result of her lumbar spine injury.
The applicant is entitled to weekly compensation from 26 August 2024 to date and continuing at PIAWE of $1,039.26 subject to indexation.
The applicant is entitled to payment of reasonably necessary medical or related expenses arising from her lumbar spine and psychological injuries pursuant to s 60 of the 1987 Act.

[2025] NSWPIC 157

17 April 2025