Temple v AllStaff Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Temple v AllStaff Australia Pty Ltd & others [2022] NSWPIC 432
APPLICANT:	Rebeccah Temple
RESPONDENT:	Woolworths Group Limited
MEMBER:	Jill Toohey
DATE OF DECISION:	3 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments and section 60 of the Workers Compensation Act 1987 (1987 Act); worker sustained frank injury to lumbar spine on 9 November 2017 while employed by the second respondent, a labour hire firm from June 2019; the worker was employed directly by the first respondent; her hours and duties remained the same; worker alleged injury to her lumbar spine while employed by the first respondent as a result of the nature and conditions of her duties; alternatively aggravation of her lumbar spine condition; whether the effects of the first injury had resolve; whether further injury as a result of employment with the first respondent; whether worker had any incapacity for employment; whether either or both injuries made a material contribution to incapacity; application of section 22 of the 1987 Act; Held — finding that worker had reduced capacity for employment; finding that employment with both respondents made a material contribution to her in capacity; liability apportioned equally between the respondents.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained an injury to her lumbar spine on 9 November 2017 arising out of or in the course of her employment with the second respondent. 2. The applicant sustained a disease injury arising out of or in the course of her employment with the first respondent with deemed date 21 July 2020. 3. The effects of the applicant’s injury on 9 November 2017 had not resolved before she commenced employment with the first respondent. 4. Both injuries made a material contribution to the applicant’s partial incapacity for employment from 21 July 2019. 5. At all material times the applicant has had capacity to earn $500 per week in suitable employment and is entitled to weekly payments from 22 July 2021 pursuant to section 37 of the Workers Compensation Act 1987 based on a PIAWE of $975 being her PIAWE while employed by the first respondent. 6. The applicant is entitled to payment of reasonably necessary treatment and medical expenses as a result of her injuries. 7. Liability is apportioned pursuant to section 22 of the Workers Compensation Act 1987 equally between the first and second respondents respectively. 8. Liberty to apply with respect to the calculation of weekly payments.

STATEMENT OF REASONS

BACKGROUND

Rebeccah Temple, the applicant, was employed as a store person/picker/packer by Allstaff Australia Pty Limited (Allstaff), a labour hire service which contracted with Woolworths Group Limited (Woolworths). Up until 3 June 2019, she was employed by Allstaff; from that date she was employed directly by Woolworths. Her workplace and duties remained the same throughout her employment with both.
On 9 November 2017, Ms Temple was struck by a forklift/pallet truck at work and sustained injury to her lumbar spine. She also suffered injury to her left shoulder, right thumb, right knee and right hip. Only the injury to the lumbar spine is the subject of these proceedings.
It is common ground that Ms Temple’s injury was a personal injury within the meaning of section 4(a) of the Workers Compensation Act 1987 (the 1987 Act).
Allstaff’s insurer accepted liability for Ms Temple’s injury. From 11 November 2017 to 24 November 2017 her doctor certified her as having no capacity for work. Over the following weeks she was certified as fit for increasing hours with fewer restrictions until 15 March 2018 when she was certified fit to returned to her pre-injury duties. In accordance with her employer’s policy, she was only allowed to return once she was certified fully fit.
Ms Temple claims her lumbar spine injury never fully resolved. On 18 July 2020, the day before she was due to commence annual leave, she had to go home early because of back pain. On 21 July 2020, she felt a “pulling stabbing” pain in her lower back when she lifted a basket of washing at home. She has not returned to work since.
Ms Temple claims that she suffered a disease injury within the meaning of section 4(b)(ii) of the 1987 Act as a result of her employment with Woolworths with deemed date 21 July 2020. She claims that the nature and conditions of her employment with Woolworths caused injury to her lumbar spine; alternatively, that she suffered aggravation, acceleration, exacerbation or deterioration of lumbar spine disease.
By an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (the Commission) on 8 April 2021, Ms Temple commenced proceedings against Woolworths (the first respondent) and Allstaff (the second respondent). She claimed weekly benefits from 21 July 2020 and continuing. The application was amended by consent at a telephone conference on 6 May 2020 to include a claim for a general order for medical expenses pursuant to section 60 of the 1987 Act.
The matter proceeded to arbitration. By a Certificate of Determination dated 11 August 2021, the Member determined that Ms Temple suffered an aggravation of a disease condition in her lumbar spine and that Woolworths was wholly liable for her resulting incapacity and treatment expenses.
Woolworths appealed that decision. On 9 May 2022, Deputy President Wood revoked the Certificate of Determination and remitted the matter for redetermination.[1]
[1] Temple v Woolworths Group Limited [2022] NSWPICPD 16.

ISSUES FOR DETERMINATION

Parties attended a telephone conference on 1 June 2022. The matter could not resolve and it was listed for a conciliation/arbitration hearing on 4 July 2022. Parties provided written outlines of their submissions prior to the hearing. Although stated slightly differently by each, they agree that the following issues remain in dispute:
(a)    whether Ms Temple had recovered from the effects of the lumbar spine injury sustained on 9 November 2017 while employed by Allstaff;
(b)    whether she suffered a disease injury as a result of her employment with Woolworths to which that employment was the main contributing factor;
(c)    whether she has any incapacity for employment from 21 July 2020 and, if so, what injury or injuries materially contributed to that incapacity, and
(d) whether the discretion to apportion liability pursuant to section 22 of the 1987 Act is enlivened and, if so how it should be exercised..

PROCEDURE BEFORE THE COMMISSION

The conciliation/arbitration hearing on 4 July 2022 was conducted by means of MS Teams. Ms Temple was represented by Mr Ryan Brown of counsel, instructed by Mr Gerard Morson. Woolworths was represented by Mr Simon McMahon of counsel, instructed by Mr Sean Patterson. Allstaff was represented by Ms Lyn Goodman of counsel, instructed by
Ms Phoebe Singer.
Parties were unable to reach agreement and the matter proceeded to a hearing.
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 them 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.
There was insufficient time at the hearing for Woolworths to make oral submissions in reply and for oral submissions in reply to be made on behalf of Ms Temple and I made directions for those submissions to be filed by 11 July 2022.

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 by Woolworths and attached documents;
(c)    Reply by Allstaff and attach documents;
(d)    Application to Admit Late Documents (AALD) dated 24 June 2021 filed by Allstaff;
(e)    AALD dated 25 June 2021 filed by Woolworths;
(f)    AALD dated 1 July 2021 filed by Ms Temple, and
(g)    AALD dated 9 June 2022 filed by Ms Temple.

Oral evidence

There were no applications to adduce oral evidence or cross-examine any witness.

Ms Temple’s evidence

Ms Temple’s evidence is set out in written statements dated 8 December 2020[2] and
[2] ARD page 1.
[3] Applicant AALD 9 June 2022
25 June 2021[3].
In her first statement, Ms Temple states that she left school in about 1991 or 1992 when she was around 15 years or 16 years old, and worked in one of Woolworths’s supermarkets. She then worked at a “picking packing job” with Faulding Pharmaceuticals, and then in various jobs in her 20s and 30s, including as a funeral assistant for about eight years. She states she never had any problems with work or employment, and worked hard throughout her life up until the injury on 9 November 2017.
Ms Temple states that she was employed as a “store person/picker/packer” by Allstaff on a contract arrangement. She describes how the injury occurred on 9 November 2017 when a pallet truck driver reversed into her, hitting her and dragging her a short distance. She states that she suffered injuries to her left shoulder, right thumb, right knee, right hip and lower back.
Ms Temple kept working for about two days after the accident even though she says she was in pain. She states her injuries did not resolve as quickly as she thought they would. The workplace physiotherapist advised her she had sustained soft tissue injuries and she should see a doctor. She came under the care of Dr Parmar at the Richmond Marketplace Medical Centre. She had scans of her right thumb and left shoulder. She cannot recall whether she was referred to a specialist but, in any event, neither injury caused her to have surgery.
After two or three months, Ms Temple was cleared to resume pre-injury duties at the Yennora Distribution Centre. She describes the work there as “very intense, repetitive and physical”. She worked morning shifts when employed by Allstaff. Shortly after transferring to Woolworths, she changed to the afternoon shift. The duties were the same under both employers.
Ms Temple states that her duties included “packing pallets all day and packing materials from one pallet and placing them on another”. The items to be moved weighed up to 15 to 20 kg and, even though some were lighter, it was repetitive work without reprieve. She would “pick and pack” all day except for a 12-minute “smoko” break and half-hour lunch break. Workers were required to meet certain targets and “KPI’s” and could not “slack off and waste time”. They had to manually wrap loads on the pallet trucks to stop items moving or falling off. She describes this as “fairly physical work having to apply pressure on the load and pallet and bend, twist and reach up to awkward positions to ensure the wrapping was secure”. She says employees worked hard as they were grateful to have their jobs and scared about losing them.
Ms Temple states that, over the course of 2019 and 2020, her back would be “fairly sore” after a long day’s work. She was concerned about her employment and, as she had not had “a specific injury or accident”, she continued to work and rest up on weekends as best she could.
Ms Temple states that, in 2019 and 2020, she was working for four days a week, allowing her to rest her back for three. In March 2022, she reduced her hours to three days a week so as to be available to help her mother. She states she thought she would be able to manage her back pain.
Ms Temple states that, on 16 June 2020, her right knee was becoming sore and collapsed several times while packing pallets. She reported this to her employer and was seen by the workplace physiotherapist who put her on light duties for two weeks after which she returned to her pre-injury employment and “kept on working as best as [she] could”.
Ms Temple states that, around June or July 2020, Woolworths were reducing staff at the warehouse. She was again worried about losing her job and kept working as best she could. She continued to have pain in her back and right hip. She took annual leave from
19 July 2020. Her last shift was supposed to be on 18 July 2020, but she worked only an hour and a half because she was in a lot of pain. She felt like “something was going to snap or break in [her] back every time [she] moved”. When she left early that day, she did not report that she was going home because of her back pain, because she was about to start annual leave in any case. She hoped the pain would settle during her week off.
On or about 21 July 2020, Ms Temple bent over to lift a washing basket at home. It had only a few clothes in it and she estimates it weighed no more than 2 kg, probably less. As she did so, she felt “immediate pain in [her] lower back”.
About one week later, when she continued to be in a lot of pain, Ms Temple presented to Nepean Hospital. She was referred back to her general practitioner. She was living in Penrith at the time and came under the care of Dr Mehjabin who referred her to spinal surgeon,
Dr Charles New. Dr New arranged for her to undergo scans and a cortisone injection.
Ms Temple states that Dr Mehjabin “was not really comfortable with workers compensation claims” and so she came under the care of Workers Doctors in Parramatta. She has since continued to obtain Certificates of Capacity certifying her unfit for work, and she remains under the care of Dr New.
Ms Temple states that she did not consider that bending over at home and lifting “a very light” washing basket caused her back injury. She did not do any other physical activities besides her work and she believes her back injury to be either an aggravation of her previous injury or caused by the nature and conditions of her employment as a picker and packer.
Ms Temple describes continuing pain in her back, radiating down her right leg and into her foot. There is a “stabbing pain” quite regularly in her right buttock, and she has pain in her right knees most days. She takes gabapentin for nerve pain and melatonin to help her sleep. She also takes over the counter painkillers if the pain is too bad. She states that driving is not easy with these heavy medications and she cannot sit for too long; she needs help with household duties, her sleep at night is broken, and she cannot work.
In her statement dated 25 June 2021, Ms Temple states that there appears to be some confusion as to whether or not she was working following the injury on 13 November 2017. She refers to Certificates of Capacity completed by Dr Parmar between November 2017 and March 2018. Dr Parmar certified her unfit for work from 13 November 2017 until
24 November 2017, with her hours gradually increasing until 15 March 2020 when a certificate records a trial of pre-injury duties.
Ms Temple states that, despite being certified fit for partial and suitable duties, she was told that Woolworths’ and her employer’s policy was to only allow her to return to work when she had full pre-injury clearance. This motivated her to return to work more quickly as suitable duties were not provided and she was worried if she was off for long periods she would lose her job. Her back made slow improvement from November 2017 until she returned to work on or about 26 February 2018. She says it was not completely recovered but she was keen to get back to work as she had been absent since 14 November 2017.
Ms Temple states that, following her return to work, her back was “a little better but again not perfect” and it has never been as good as it was before the initial injury. She “strongly disagrees” with Dr Silva’s comment that she undressed and redressed without difficulty when he examined her. She says she had to sit to take off her pants and sit to put them on again as she has difficulty bending to put lower garments on and off.
Ms Temple also disputes Dr Silva’s statement that she did not have any clinical confirmation of lumbar radiculopathy. She refers to a nerve conduction test on 2 September 2020 which confirmed “active right L4/L5 radiculopathy”.

Richmond Marketplace Medical Centre records

Ms Temple attended at Richmond Marketplace Medical Centre from 17 March 2017 to
[4] Woolworths AALD page 1.
11 July 2018. The clinical records are in evidence.[4] Many are handwritten and not easily deciphered.
On 14 June 2017, Dr Omar Brdarevic recorded a history that Ms Temple had pain in her left shoulder and neck and “Repetitive heavy lifting”. He noted an X-ray and ultrasound.
Ms Temple next attended on 13 November 2017, when Dr Anshu Parmar recorded that, on
9 November 2017, Ms Temple was at Woolworths’ warehouse when she was hit by a reversing pallet machine. Dr Parmar prescribed Voltaren and provided a medical certificate.
On 14 November 2017, Ms Temple again complained of lower back pain. Dr Parmar recorded there was no radiation; she issued a Certificate of Capacity and referred Ms Temple for physiotherapy.
On 20 November 2017, Lauren Grace, physiotherapist at In Motion Physiotherapy, reported to Dr Palmar that Ms Temple has presented for treatment for her lower back, left shoulder and right knee. She had “non-specific lower back pain with right number-pelvic instability and associated muscle spasms”.[5]
[5] Woolworths AALD page 85.
Ms Temple continued to consult Dr Parmar who notes throughout November and December 2017 indicate gradual improvement in her injuries. On 29 January 2018, Dr Parmar recorded that her back pain was “better”, there was no radiation, and she had full range of movement in the right knee and right thumb. She noted that Ms Temple had not been offered light duties.[6]
[6] Woolworths AALD page 38.
On 12 February 2018, Scott Cone at In Motion Physiotherapy reported to Dr Parmar that
[7] Woolworths AALD page 86.
Ms Temple was doing exercises as part of her rehabilitation, with the goal of returning to full duties the following week.[7] Dr Parmar noted this in her records.
On 14 February 2018, Mr Cone reported to Dr Parmar, recommending Ms Temple delay her return to work by a further week because of “delayed onset muscle soreness”.[8]
[8] Woolworths AALD page 41.
On 16 February 2018, Dr Parmar recorded that Ms Temple had been doing exercises; she had pain after lifting; she had good range of motion in her left shoulder; there was no radiculopathy.
On 19 February 2018, Mr Cone reported to Dr Parmar, recommending that Ms Temple return to work the following week. On 23 February 2018, Dr Parmar recorded the left shoulder had full range of motion, there was no radiculopathy, and she was happy for Ms Temple to resume pre-injury duties.[9] On 15 March 2018, she recorded that Ms Temple had been doing her pre-injury duties, “no problems”. She noted Ms Temple had two more physiotherapy appointments.
[9] Woolworths AALD page 44.

Certificates of capacity

On 14 November 2017, Dr Parmar certified Ms Temple as having no current work capacity from 13 November 2017 to 17 November 2017.[10] She issued a further certificate in the same terms to 24 November 2017.
[10] Allstaff AALD page 32.
On 24 November 2017, Dr Parmar certified Ms Temple fit for suitable duties, four hours a day, four days a week from 25 November 2017 to 8 December 2017, with restrictions on lifting, sitting and standing, no pushing or pulling, bending twisting or squatting, and with a 15-minute rest break after two hours.[11]
[11] Allstaff AALD page 42.
On 8 December 2017, Dr Parmar issued a further certificate in the same terms for the period to 22 December 2017. On 22 December 2017, she certified Ms Temple as having capacity for suitable employment for five hours a day, four days a week to 4 January 2018 with similar, though slightly reduced, restrictions. On 4 January 2018, she certified Ms Temple as having capacity six hours a day for five days a week, with restrictions further reduced. She certified Ms Temple as having capacity eight hours a day five days a week from
29 January 2018 to 12 February 2018 with lifting restrictions.

On 15 March 2018, Dr Parmar certified Ms Temple fit for pre-injury duties.

Active Occupational Health Services

An Initial Rehabilitation/Workplace Assessment Report was prepared on 28 November 2017 by Sophie Birkbeck, occupational therapist with Active Occupational Health Services.[12]
[12] Woolworths AALD page 27.
Ms Birkbeck reported to the insurer that she had an initial interview with Ms Temple on
24 November 2017, and a case conference immediately afterwards with Dr Parmar.
Ms Temple reported that her left shoulder, right thumb, right lower back and right knee were injured in the incident on 9 November 2017. She stated that she did not realise the extent of her injuries at the time, only noticing that her right knee was sore. She continued to work but her left shoulder, right lower back, and right thumb were getting sore and the right knee pain was increasing. She reported constant right lower back pain radiating intermittently into her right buttock, down her right thigh and upper back which was aggravated by trunk extension or twisting, prolonged standing or sitting. She rated her pain as 7.5/10; she rated her shoulder and right thumb pain both 4/10.
The report shows that, at the case conference, Dr Parmar said Ms Temple has sustained soft tissue injuries; Dr Parmar expected her to return to pre-injury duties within 12 weeks of starting treatment on 20 November 2017.
A Return to Work Plan prepared on 28 November 2017 refers to a certificate issued by
Dr Parmar on 24 November 2017 certifying Ms Temple as having capacity for suitable employment four hours a day, four days a week, from 25 November 2017 to
8 December 2017, subject to restrictions, and the goal for her to return to work by
[13] Woolworths AALD page 32.
20 February 2018.[13]

Workers Health Centre, rehabilitation provider

Rehabilitation consultant, Veronica Lun, prepared a Return to Work Upgrading Program No 1 for Ms Temple dated 21 December 2017.[14] It recorded her injury as back pain, left shoulder, right knee and right thumb injury. It noted a Certificate of Capacity dated 21 December 2017 certifying her as having capacity for suitable employment five hours a day four days a week to 4 January 2018. It noted that suitable duties were “unavailable”.
[14] Allstaff AALD page 274.
The Program outlined a proposed staged return to full duties by 22 February 2018 with recommendations for warmup exercises before work, avoiding certain activities, and continuing with physiotherapy and a home exercise program in accordance with
Ms Temple’s doctor’s recommendations.
On 3 May 2018, Ms Lun issued a Return to Work Closure Report, advising that Ms Temple had returned to a trial of pre-injury duties on 26 February 2018 without encountering any difficulties, and a final Certificate of Capacity for pre-injury duties had been issued on
15 March 2018.

Glenwest Medical Centre records

Ms Temple attended on general practitioner, Dr Ishrat Mehjabin, at Glenwest Medical Centre from 25 February 2020 to 3 May 2021.[15]
[15] Woolworths AALD page 46.
On 20 July 2020, Dr Mehjabin recorded that Ms Temple had “moderate to severe lower back pain 2 days ago after she lifted a heavt basket with full of cloths [sic]”. He noted she was “seen in ED” and an MRI of her lower back had been arranged. He noted the pain was better with endone and she was able to walk. There was no obvious swelling or deformity, she was mildly tender at the paravertebral muscle L4/L5 region and range of movement was restricted. He noted “muscle strain most likely? disc bulge”.[16]
[16] Woolworths AALD page 52.
On 4 August 2020, Dr Mehjabin recorded that he had discussed the report of an MRI with
Ms Temple. He noted degenerative changes mainly at L4/5 and L5/S1 and there was a central posterior disc annular tear at L5/1. He noted the lower back pain was “slowly getting better” and he had referred Ms Temple to Dr Charles New.
On 6 August 2020, Dr Mehjabin recorded that Ms Temple had seen Dr New, and a new bone scan and cortisone injection had been arranged. He also noted he had advised her “to claim work cover” and that he “did not do work cover” and she was to see her regular general practitioner. Dr Mehjabin’s notes refer to the discharge summary from Nepean Hospital “re acute back pain”. (The discharge summary dated 28 July 2020 is in evidence. It records that Ms Temple presented with lower back pain but it does not record the cause.)
On 3 September 2020, Dr Mehjabin noted that an EMG of the right L4 to S1 innervated muscles showed active and chronic degeneration and changes in an L4-L5 distribution. He noted L4-5 radiculopathy and that Ms Temple was due to have a further cortisone injection the following Monday. He noted she had had an MRI of the lower back and both hips, and was seeing Dr Eric Lim.
On 3 May 2021, Dr Mehjabin recorded that Ms Temple was “still struggling to get work cover support for chronic lower back pain”. On 4 May 2021, he again recorded “chronic lower back pain” and that Ms Temple had had four cortisone injections.

Workers Doctors

Ms Temple first saw Dr Lim at the Workers Doctors practice on 10 August 2020. Later she attended on other doctors at the same practice as well, including Dr Sebastian Calvache-Rubio, Dr Morgan Mo and Dr Ben Dickson. They issued Certificates of Capacity covering the period 10 August 2020 to 22 July 2022 (being the last certificate before the arbitration hearing), all certifying her as having no capacity for work. The certificates record her injuries as back, right hip and right knee and an additional diagnosis of adjustment disorder.[17]
[17] ARD page 31.
On 10 August 2020, Dr Lim recorded that on 18 July 2020, Ms Temple reported that, while at work, she suffered back, hip and knee injuries “due to repetitive lifting and bending at her work”. Initially she had right knee pain on 16 June 2020 but kept working. On return to work she developed back pain and she applied for annual leave as she was fearful of reprisal if she claimed workers compensation, and she hoped things would get better. Her pain worsened after trying to lift the washing basket on 21 July 2020. He noted that she attended on Nepean Hospital on 28 July 2020 due to severe low back pain.
Dr Lim recorded that it would be “reasonable to conclude that the mechanism of injury was a direct result of performing those specified tasks” and the history given by Ms Temple was consistent with employment being the main contributing factor to the injury. He noted she had previous right knee and lower back injuries from work in 2017 from which she had recovered. He diagnosed lumbar spine radiculopathy, L4 to S1 degenerative changes, L5/S1 disc protrusion and annular tear with nerve root compression as well as right hip and knee strain, and adjustment disorder. He considered she was “totally unable to work”.
On 17 August 2020, Dr Calvache-Rubio noted that Ms Temple had severe pain for the last month which was slowly improving. He noted she had a back injury three years ago, she returned to pre-injury duties, and “without symptoms after this”.[18]
[18] ARD page 38.
Ms Temple saw Dr Calvache-Rubio again on 24 August 2020. He noted the pain was slowly improving, she had been taking gabapentin and was awaiting a cortisone injection. His notes show the “nature of her work” was “consistent with the type of injury in the lower back and hips she has developed”. Her pain was “severe and disabling” and she was currently unfit for work; it was unclear when she would be able to resume working 27 hours a week. Over subsequent appointments, he noted a deterioration in her condition.
On 14 October 2020, Dr Mo recorded that Ms Temple’s lower back pain had improved initially after a cortisone injection but was now worsening. He also diagnosed an adjustment disorder.
On 17 March 2021 and 14 April 2021, Ms Temple saw Dr Dickson. He noted psychological symptoms in addition to her chronic pain and diagnosed an adjustment disorder.

Certificates of Capacity

On 24 August 2020, Dr Calvache-Rubio issued a Centrelink Medical Certificate certifying
[19] Allstaff AALD page 156.
Ms Temple as having no current work capacity from 24 August 2020 to 2 November 2020. He listed her diagnosis as lumbar spine radiculopathy, right hip strain and adjustment disorder and her symptoms as including “severe and recurrent lower back pain referred to lower legs, pins and neddles [sic], restricted movements”.[19]
Dr Calvache-Rubio issued a Certificate of Capacity on 21 September 2020 certifying
[20] Allstaff AALD page 160.
Ms Temple is having no current capacity from that date to 19 October 2020. He noted her diagnoses as “lumbar spine radiculopathy, L4 to S1 degenerative changes, L5/S1 disc protrusion and annular tear with nerve root compression, right hip strain, right knee strain and adjustment disorder”. He described her injuries to her back, hip and knee as “due to repetitive lifting and bending at her work”. He noted pre-existing factors as “R knee and lower back injuries from work (2017) recovered”.[20]
On 14 October 2020, Dr Mo issued a Certificate of Capacity for the period to
[21] Allstaff AALD page 163.
11 November 2020 in the same terms.[21]
Workers Doctors have continued to issue Certificates of Capacity in the same terms.

Dr Charles New

Dr Charles New, orthopaedic surgeon, first saw Ms Temple on 11 August 2020. He reported to Dr Mehjabin that she had developed debilitating pain in her back and right buttock over the previous two weeks which she described as “an aching burning sensation with no pins and needles and radicular pain”. She had been off work after developing pain while performing her normal duties; the pain became “specifically worse” when lifting a washing basket at home.[22]
[22] ARD page 11.
Dr New noted Ms Temple’s history of a workplace injury in 2017 when she injured her lower back, left shoulder, right thumb and left knee. He noted she was off work for 14 weeks and said it was obviously “quite a substantial injury” and Ms Temple stated that the pain had not fully resolved since then. He said this latest episode “could be an exacerbation of her prior injuries”. He diagnosed chronic low back pain and right-sided L4/5 radiculopathy.
In a further report dated 23 September 2020[23], Dr New reported that he had seen Ms Temple on 17 September 2020. He noted that nerve conduction studies confirmed an active L4/5 radiculopathy but she said her back pain was “worse than any radicular pain”. He took a history that she had been off work since lifting a washing basket at home on 21 July 2020.
[23] ARD page 13.
Dr New noted the history of the incident in 2017 after which Ms Temple was off work for 14 weeks. He noted she had scans of her right thumb and knee but none of her lumbar spine. He noted her left shoulder was treated with physical therapy. She returned to normal duties but since that time had had “intermittent back pain with no radicular pain”. He noted she had no problems with her back, shoulder or knee before the incident in 2017. Currently, her major problem was low back pain. He said there was no suggestion of “over-action or exaggeration”.
Dr New confirmed that Ms Temple had “debilitating lumbosacral pain and pain in the L5 and S1 nerve root distribution on the right and side”. She described as “an aching burning sensation with pins and needles”. The pain was exacerbated by walking, changing positions, coughing, sneezing and prolonged standing. She could only lift a very light weight of
2 to 3 kg if conveniently positioned; she could walk for approximately 100 m and sit or stand for half an hour. Her sleeping pattern was significantly disrupted because of pain, and her social life and travelling by motor vehicle had also been affected by pain.
Dr New diagnosed chronic low back pain and right-sided L4/5 radiculopathy which, he said, would result in “a reduced capacity for work”. He noted she had not been able to return to work “since her latest injury on the back of the history from 2017”. With regard to her capacity for work, he said she would require a functional and vocational assessment. He said:
“[I]t is my opinion that the incapacity she has is the result of the injury at work in 2017 which has been exacerbated by her incident at home, and that the original injury to her spine was substantial in contributing to her current presentation.”[24]
[24] ARD page 15.

Dr Peter Giblin

Dr Peter Giblin, orthopaedic surgeon, saw Ms Temple for assessment on 19 October 2020 and reported to her solicitors.[25]
[25] ARD page 22.
Dr Giblin took a history of the accident on 9 November 2017 consistent with others. He noted that Ms Temple was off work for about 10 weeks and returned to full time, unrestricted normal duties in 2018. He noted that she became permanent in the same warehouse, on a full-time basis, on 3 June 2019. (This was the date she commenced employment with Woolworths.)
Dr Giblin took a history that Ms Temple had symptoms in her right knee at work on 16 June 2020. The following week, her right hip and lower back became sore but she put up with the symptoms and “pushed through”. On 18 July 2020, she felt her low back was “going to snap” if she bent over so she stopped about an hour and a half into her shift and went home. She decided to take annual leave to rest up so that things would settle down. He took a history of “acute stabbing pain in her low back”, when she lifted the washing basket on 21 July 2020, that she attended Nepean hospital on 28 July 2020 and had remained off work ever since. He noted she had had injections and physiotherapy.
Dr Giblin examined Ms Temple and considered X-rays and other investigations. He made a provisional diagnosis of a soft tissue injury to her lower back. He stated:
“This injury is an aggravation occurring in the course of her employment and it is only the employment which is the main contributing factor to the aggravation of the pre-existing age-related degenerative changes.”
Dr Giblin noted that Ms Temple’s main complaint was persisting right-sided lower back and right leg symptoms and a constant feeling of numbness over the lateral border of her right foot and the back of her calf. He noted that most days she could not walk more than 400 m, stand for more than 15 minutes or sit more than 20 minutes, and she did not get more than three hours sleep at a stretch at night.
Dr Giblin considered Ms Temple was “permanently unfit for unrestricted heavy repetitive bending, lifting and twisting or associated physically demanding musculoskeletal work”. He said she would be fit for a full-time secretary job avoiding these restrictions and, if necessary, preceded by appropriate vocational rehabilitation. Nonetheless, he said, her injuries would deteriorate, as well as being subject to “material aggravation from innocuous physical events”.

Dr Thomas Silva

Orthopaedic surgeon, Dr Thomas Silva, saw Ms Temple for assessment on 19 May 2021 at the request of Allstaff. He provided reports dated 26 May 2021[26] and 17 June 2021[27].
[26] Allstaff AALD page 195.
[27] ARD page 201.
On 26 May 2021, Dr Silva reported a history of the incident on 9 November 2017 consistent with others. He noted that Ms Temple was absent from work for 14 weeks following the injury, during which time she had physiotherapy on her right hip, back, left shoulder and right thumb. He noted that she returned to normal pre-injury duties and hours and continued without further back injury until 18 July 2020 when she experienced “increasing low back pain which had been niggling from her first injury”.
Dr Silva noted that Ms Temple had been treated with injections, physiotherapy and pain medication. She now presented with constant low back pain radiating along the right leg to the dorsum of the right foot; she could sit or stand for 20 minutes and walking relieved her back pain. He observed that she had “no difficulty in undressing and dressing herself”. There was no limp and she could tiptoe and heel walk but squatting caused some low back pain. There was some non-symmetrical restriction of back movement.
Dr Silva referred to an MRI lumbar spine report dated 31 July 2020 which confirmed degenerative changes, mainly at L4/5 and L5/S1, and a central posterior annular disc tear at L5/one but no neuroforaminal encroachment at L5/S1. There was mild narrowing of bilateral lateral recesses but no definite impingement of the nerve roots at L4/5.
With respect to whole person impairment, Dr Silva said:
“… based on the history, clinical and radiological findings, the main substantial back injury was on 9 November 2017 and the two subsequent episodes do not attract any apportionment because they were aggravations of the original injury.”
Dr Silva diagnosed lumbar strain without clinically confirmatory lumbar radiculopathy. He said it appeared that, from 9 November 2017, Ms Temple had intermittent low back pain or episodic low back pain which was aggravated on the two subsequent occasions. He considered she was fit for pre-injury hours with some restrictions on heavy frequent lifting and frequent bending. He said he had asked her about her previous employment and she had said she used to work as a receptionist and also in the office of the funeral director. He considered she was fit for receptionist work or the duties of a shop assistant, with restrictions on heavy frequent lifting and frequent bending.
On 17 June 2021, Dr Silva provided a supplementary report. He referred to a briefing letter stating that Ms Temple gave him an incorrect history when she said she was off work for 14 weeks after the incident on 9 November 2017. He noted instructions that her absence was only two weeks plus three days and “after that she returned to pre-injury duties”. He noted instructions that Dr Parmar had cleared her to return to pre-injury duties on 15 March 2018 “without symptoms after that”.
Dr Silva reported that, considering that Ms Temple was only absent for two weeks and three days and not 14 weeks, and then returned to full pre-injury duties until 18 July 2020, it was reasonable to conclude that the original back injury had resolved. He stated that the
18 July 2020 claim of back pain was therefore a new back injury. The 27 July 2020 [sic] low back injury at work [sic] lifting a linen basket appeared to be an aggravation of the 18 July 2020 injury. In light of the information provided to him, Dr Silva provided a revised assessment of whole person impairment.

SUBMISSIONS

The following summarises parties’ written outlines of submissions as expanded upon at the hearing and in written submissions in reply. The hearing was recorded and a transcript is available.

The applicant’s submissions

Mr Brown submits that Ms Temple sustained injury to her lumbar spine in the accident on
9 November 2017 while employed by Allstaff. Liability for her lumbar spine injury was accepted. Mr Brown submits her injury never resolved.
Mr Brown submits that, in the course of performing picker packer duties while employed directly with Woolworths, Ms Temple’s lower back pain increased to the point that, on
18 July 2020, she was unable to complete the shift. Her back pain deteriorated further on
21 July 2020 when she tried to lift a washing basket at home.
Mr Brown submits that Ms Temple was off work from 11 November 2017 to
28 February 2018 and on significantly restricted duties until 15 March 2018 when she returned to pre-injury duties. Her evidence is that, following her return to work, her back was a little better but was never as good as before the injury.
Mr Brown submits that Dr New, the treating orthopaedic surgeon, first saw Ms Temple on
5 August 2020, and took a history that the pain in her lower back had not fully resolved following the 9 November 2017 incident. Dr New opined that her incapacity was a result of the 2017 injury.
With respect to Dr Silva, Mr Brown refers to his opinion in his first report that, based on the history, clinical radiological findings, the injury on 9 November 2017 was “the main substantial back injury” and the two subsequent episodes were “aggravations of the original injury”.

Mr Brown submits that Dr New’s opinion should be accepted. He took a comprehensive history and had the nerve conduction study which confirmed L/45 radiculopathy. Mr Brown submits that Dr Silva also took a comprehensive history and concluded that “the main substantial back injury” was on 9 November 2017 and the two subsequent episodes were aggravations of the original injury
Mr Brown submits that Dr Silva’s supplementary report should be disregarded because it is based on the incorrect assumption that Ms Temple was absent from work for two weeks and three days. In the result, Dr New and Dr Silva agree that the injury on 9 November 2017 resulted in the claimed period of incapacity.
Mr Brown submits that Ms Temple’s employment with Woolworths aggravated her lumbar spine injury. He refers to her description of her duties including lifting items weighing up to
20 kg and the requirement to meet targets and “KPI’s”. Mr Brown refers to her evidence that, over the course of 2019 and 2020, her back was “fairly sore” after a long day’s work.
Mr Brown submits that Ms Temple’s claim that her employment with Woolworths aggravated her lumbar spine condition is supported by Dr New, Dr Giblin, and Dr Silva; there is no countervailing opinion.
Mr Brown submits that I should find that Ms Temple has no current work capacity from
21 July 2020. She has an active right L4/5 radiculopathy, and her current treating general practitioner has certified her as having no current work capacity from 21 September 2020 to 20 July 2022, being the last certificate before the arbitration hearing. Mr Brown submits that her doctor has had the benefit of seeing her regularly and is in the best position to view her capacity, and the Certificates of Capacity should be accepted.
Mr Brown submits that Dr Silva’s assessment of capacity should not be accepted as he did not have the benefit of the neurophysiology test report which identified the active right L4/5 radiculopathy.
Mr Brown submits that Dr New noted that Ms Temple had not been able to return to work and that to do so she would need functional and vocational assessment, which has not occurred.
With respect to Dr Giblin’s opinion that Ms Temple could work a sedentary job, Mr Brown submits that it does not take account of what she told Dr Giblin, that she cannot walk more than 400 m, stand for more than 15 minutes or sit for more than 20 minutes, and that she does not get more than three hours sleep at a stretch at night. Mr Brown submits Dr Giblin’s assessment should not be accepted over the Certificates of Capacity.

The first respondent’s submissions

Mr McMahon submits that Ms Temple had not ever fully recovered from the effects of the injury on 9 November 2017. Mr McMahon points to the period of approximately 14 weeks she was off work after the injury and her evidence that she had back pain after her return to work. He submits that the fact she was given a full clearance is not to say she made a full recovery.
Mr McMahon submits that Dr New and Dr Silva each opine that the November 2017 injury is causative of incapacity for work, each providing a history which is aligned with the contemporaneous evidence and that of Ms Temple.
With respect to the nature and conditions of Ms Temple’s work with Woolworths from
3 June 2019 to 18 July 2020, Mr McMahon submits that she does not give evidence of the duties that are alleged to be causative of pain. She refers to the onset of pain when she lifted a washing basket. She does not give evidence of an increase in symptoms or a change which would delineate the 2017 injury from the “nature and conditions” of her employment with Woolworths.
Mr McMahon submits that there is no cogent evidence which supports the finding that there was an increase in Ms Temple’s symptoms due to the “nature and conditions” of her employment and to distinguish them from a simple continuation of symptoms from the earlier injury. Rather than an increase in symptoms over time, her account is consistent with them simply being worse on one day. Further, her failure to report her back pain is inconsistent with having made a previous workers compensation claim and having recently seen her doctors about her knee.
Mr McMahon submits that Dr New and Dr Silva each opine that the November 2017 injury is causative of Ms Temple’s incapacity for work. Dr New took a history of a continuation of symptoms from the earlier injury with ongoing intermittent back pain, and not of the aggravation or increase in symptoms while she was undertaking her normal duties. She did not reduce her hours or take leave because of her back pain, rather to look after her mother.
Mr McMahon submits that Dr Silva’s second opinion does not assist because it proceeds on the basis of an incorrect history and also does not take into consideration that Ms Temple’s symptoms continued from the earlier injury.
Mr McMahon submits that Ms Temple has not made out the allegation of a disease injury with respect to Woolworths.
With respect to Dr Giblin, Mr McMahon submits that he opines that there was an aggravation in the course of Ms Temple’s employment, but the circumstances in which it was said to occur is not clear. Dr Giblin did not delineate between periods of employment with Allstaff and Woolworths. His opinion cannot be relied on to establish a causative element to a disease process, let alone that employment was the main contributing factor.
Mr McMahon submits that Dr Lim’s opinion also proceeds on an incorrect history that
Ms Temple’s back complaints following the 2017 injury had resolved, whereas as they had continued.
As to Ms Temple’s capacity to undertake work, Mr McMahon submits that the Certificates of Capacity provided by Workers Doctors, while stating she has no capacity for work, refer to other injuries or conditions, none of which is advanced in these proceedings. Against this, Mr McMahon submits, there is consensus among the orthopaedic specialists. Dr New opined that Ms Temple can undertake light or sedentary work and he recommends office work.
Dr Giblin considered she could undertake full-time work, although in a sedentary role.
Dr Silva considered she was fit for pre-injury hours but on light duties. Moreover, on her work history, she has capacity to work in a clerical role.
Mr McMahon submits that, to the extent that Ms Temple has incapacity, it arises only from the 2017 injury. It is not because of a disease injury sustained while employed by Woolworths, the medical evidence is clear that it resulted from the 2017 injury.
Mr McMahon submits that section 22 of the 1987 Act has no work to do in this case because Ms Temple has not made out the allegation of a disease injury against Woolworths. If I accept that both the frank incident on 9 November 2017 and a disease injury materially contributed to Ms Temple’s incapacity, then section 22 may be engaged.
Mr McMahon refers to the Commission’s broad power under section 22 as commented on by President Judge Phillips in State of NSW v Roberts Concrete Specialists Pty Ltd (formerly Jack Harrison Home Builders Pty Ltd)[28] and submits that the only probative evidence regarding apportionment indicates that the 2017 injury caused the onset and continuation of symptoms; the symptoms and complaints while employed by Woolworths were not new. If there is to be an apportionment, Mr McMahon submits it should be that the first respondent is 25% liable and the second respondent 75% liable.
[28] [2020] NSWWCCPD 20 (Roberts).

The second respondent’s submissions

Ms Goodman submits that Ms Temple had recovered from the 2017 injury. Moreover, her claim for compensation is based on injury to her back even though she also suffered injury to her left shoulder, right thumb, right knee and right hip.
Ms Goodman submits that the only investigations Mr Temple underwent following the 2017 injury were of her right thumb and left shoulder. There were no investigations of her back or referral to a specialist. The inference is that her back was not troubling her to any extent.
Ms Goodman submits that, although Ms Temple only returned to pre-injury duties on
15 March 2018, she was certified as having capacity for a graduated return to work from
25 November 2017. Further, there is no evidence that she reported any issues with her back to Allstaff or her doctors, or sought any treatment, after her return to work in 2018.
Ms Goodman submits that the evidence from Dr Parmar, the physiotherapist and the rehabilitation provider all indicate that Ms Temple made a good recovery. Her rehabilitation file was closed approximately three months after she returned to work in 2018. She had scans of other body parts following the injury but not of her lower back, the inference being that it was not troubling to any extent. Notes of Dr Lim and Dr Calvache-Rubio support the fact that she had recovered from the 2017 injury.
Ms Goodman submits that Ms Temple’s evidence is that her work with Woolworths was intensive, repetitive and physical, and included lifting some heavy articles. It involved bending, twisting and reaching. The evidence is that, over the course 2019 and 2020, her back could be sore after a long day’s work. She was concerned about losing her job when Woolworths were reducing staff in mid 2020, and kept on working as best she could. By
18 July 2020, she only worked for a short time because she was in a lot of pain.
Ms Goodman submits that Ms Temple’s report of difficulties with her right knee on
16 June 2020 is inconsistent with her claim that she was suffering back pain before
18 July 2020 but did not want to report it to her employer.
Ms Goodman submits that Dr New diagnosed chronic back pain with right-sided radiculopathy but reported no details of the very physical work Ms Temple did with Woolworths. Dr Silva appeared not to be aware that, since June 2019, she was employed by Woolworths. He has not considered whether the work she performed after that date aggravated her condition. Ms Goodman submits that neither doctor’s opinion was based on a complete history and was not given in the fair climate. Dr Giblin’s opinion was that she suffered an aggravation of a pre-existing age-related degenerative disease. Ms Goodman submits that Dr Giblin’s opinion is the most correct, and he did not implicate the 2017 injury.
Ms Goodman submits that Ms Temple’s symptoms have become worse during her employment with Woolworths; she need not establish that the pathology has been aggravated by her employment: Cant v Catholic Schools Office.[29]
[29] [2007] NSWWCC 37 (Cant).
With respect to incapacity, Ms Goodman submits that Ms Temple is fit for full-time light office or clerical work such as receptionist or shop assistant. While Dr Giblin considered she was permanently unfit for unrestricted heavy repetitive bending and so on, he considered she was fit for full-time secretarial work. Dr Silva also found her fit for pre-injury hours with some restrictions on lifting. Ms Goodman submits that Ms Temple has experience of office work and worked for a funeral director.
Ms Goodman submits that only Dr Lim and Dr Calvache-Rubio properly considered the question of causation of Ms Temple’s incapacity for work from 20 July 2020, and they considered it was caused by her employment with Woolworths. Dr Silva did not consider whether it was caused by Woolworths or the aggravation of an underlying disease condition, and nor did Dr New.

The first respondent’s submissions in reply

In reply, Mr McMahon submits that I would not accept Allstaff’s submission that
Ms Temple’s claim that she was managing her duties from early 2019 to July 2020 finds no support in the contemporaneous notes. He refers to Ms Temple’s evidence of continuing difficulties with her lower back since the injury of November 2017. He submits that
Ms Temple’s evidence strongly supports the conclusion that the only occasion on which she suffered an increase in symptoms was on 18 July 2020. Her evidence about continuing lower back pain, and “keeping on” as best she could, refers to a continuation of symptoms arising from the November 2017 injury and not to an increase or change in her condition while employed by Woolworths. Moreover, her evidence is that she already had holidays booked and not, as Ms Goodman attempted to assert, that she had to take holidays because of back pain.
Mr McMahon submits that, contrary to the submission that Dr New did not have a history of Ms Temple’s duties while working for Woolworths and that he did not have a history that lower back pain continued from November 2017, Dr New recorded that she was employed as a picker packer and that she did have continuing low back pain following that injury.
In response to the submission that the workers compensation certificates all referred to the back injury of November 2017 having resolved, Mr McMahon submits this is simply a continuation of the history adduced by Dr Lim in his report of 11 August 2020, and is contrary to Ms Temple’s evidence continuing symptoms. Mr McMahon submits that the evidence supports the finding that Ms Temple’s lower back problems continued from November 2017 through to July 2020 when she ceased work with Woolworths.

The applicant’s submissions in reply

In reply, Mr Brown submits that Allstaff’s submission that there is no evidence that the injury of 9 November 2017 resulted in the claimed incapacity should be rejected. Ms Temple’s evidence is that her back was never the same. She gave Dr New this history when she first saw him in August 2020, and Dr Silva took a similar history. Both support the position that the injury had not resolved.
With respect to the history taken by Dr Silva, Mr Brown submits it is consistent with the balance of the evidence. Further, Dr New, who was the treating specialist, did take the history of the nature of Ms Temple’s duties, being that of picker packer.
Mr Brown submits that Allstaff’s submission that there was no recording of any radicular pain in either leg following the 9 November 2017 incident is wrong, and there were radicular complaints following that incident. Mr Brown refers to the Initial Rehabilitation/Workplace Assessment Report on 28 November 2017 which recorded back pain intermittently radiating to Ms Temple’s right buttock and leg.
Mr Brown submits that any suggestion that Ms Temple did not disclose relevant information or lied in her statement is strenuously resisted. He submits she has been truthful and stoic, and there is no additional benefit to her by succeeding against both respondents. Mr Brown submits that any attack on her credibility should be rejected; she was not cross-examined and was denied the opportunity to confront attacks on her credit.
Mr Brown submits that no conclusion can be drawn from the lack of radiological scans of
Ms Temple’s lower back following the November 2017 accident, and the submission that this was evidence of the severity (or lack of) of her injury should be rejected. He submits that
Dr New and Dr Silva were fully apprised of the initial injury and were not concerned by the lack of scans which was the result of decisions of her treating general practitioner.
With respect to the absence of ongoing complaints of lower back pain from mid-2018 to
[30] [2014] NSWSC 888 (Bugat).
mid-2020, Mr Brown submits that absence of complaints is not evidence that there was no issue or symptomatology in Ms Temple’s lower back. He refers to Bugat v Fox[30].
Mr Brown submits that, contrary to Woolworths’ submission that Ms Temple did not give evidence as to the nature of the work that caused the aggravation of symptoms, she provided evidence in her initial statement of her duties, and of an increase in symptoms following long days of work throughout 2019 and 2020, necessitating a reduction in her days. Mr Brown submits it should be accepted that her employment with Woolworths aggravated her 2017 injury.
With respect to incapacity, Mr Brown submits that the respondents’ submissions that
Ms Temple can do office work, or work in the funeral home, should be rejected. Mr Brown submits those positions are not suitable for someone with her restrictions; she has an active right L4/5 radiculopathy; she is limited in how long she can sit and how far she can walk; her sleep is disrupted and she has difficulty travelling in a motor vehicle, and she is on medication the side-effects of which include drowsiness and impaired concentration.
Mr Brown submits that Dr New says Ms Temple needs re-training but he does not identify a role she could do, and Dr Silva did not have the benefit of the neurophysiology study demonstrating the active L4/5 radiculopathy. Dr Giblin had the benefit of that study, he does not appear to appreciate its findings when formulating his opinion on capacity. Mr Brown submits the general practitioners have had the benefit of assessing Ms Temple over a prolonged period and their opinion should be accepted.

CONSIDERATION

Section 4 of the 1987 Act provides:
“Injury:
(a)            means personal injury arising out of or in the course of employment,
(b)            includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Ms Temple bears the onus of proof. The standard is on the balance of probabilities, meaning I must feel an actual persuasion of the matters necessary to establish her claim: Department of Education and Training v Ireland[31] and Nguyen v Cosmopolitan Homes.[32]
[31] [2008] NSWWCCPD 134.
[32] [2008] NSWCA 246.
There is no dispute that Ms Temple sustained an injury to her lumbar spine within the meaning of section 4(a) of the 1987 Act on 9 November 2017 while employed by Allstaff.

Did the effects of the injury on 9 November 2017 resolve?

Ms Temple maintains that she never fully recovered from the injury to her lower back on 9 November 2017. Woolworths agrees. Allstaff disagrees and says the evidence supports the conclusion that she had fully recovered before she sustained a disease injury while employed by Woolworths.
Ms Temple’s evidence is that her injuries did not resolve as quickly as she thought they would after the accident on 9 November 2017. Her evidence about what occurred between that time and July 2020 is limited. She states that her back made slow improvement until she returned to work on or about 26 February 2018. She states she would not say her back was completely recovered but she was keen to get back to work as she had been away since
14 November 2017. She states that, once back at work, her back was “a little better but again not perfect” and it has never been as good as it was before the injury.
The evidence supports the conclusion that, overall, Ms Temple made a good recovery from the injury on 9 November 2017. Dr Parmar initially certified her as having no capacity for work up to 24 November 2017. From that date, her capacity gradually increased from four hours a day, four days a week with restrictions, in effect approximately 50% of her usual hours, to eight hours a day five days a week by 29 January 2018 with restrictions. By three to four months after the accident, she was cleared to resume pre-injury duties.
Ms Temple does not dispute the certificates issued by Dr Parmar. Her evidence is that she was told that Woolworths’ and Allstaff’s policy was that she was only allowed to return to work once she had a “full pre-injury clearance”. This was apparently so as she did not actually return to work until a date in February or March 2018. Various dates are recorded in the evidence but nothing really turns on this.

The period of Ms Temple’s absence from work does not reflect the extent of her incapacity. Were it not for her employer’s policy, she would have returned earlier, on reduced hours. It is not an indicator of the severity of her injuries or how fully she recovered. Insofar as Dr New’s observation that it was obviously “quite a substantial injury” was based on his understanding that she was off work for 14 weeks, it is not correct.
That said, I accept Mr McMahon’s submission that the fact Ms Temple was given a full clearance is not to say she made a full recovery. Nor does it mean that she did not continue to experience lower back pain.
There are certainly some difficulties with the evidence about any ongoing effects of the injury on 9 November 2017 including that none of the specialists appears to have obtained a complete, correct history, and Ms Temple’s evidence also varies in parts from the histories as recorded by the doctors.
There is no evidence that Ms Temple complained to her general practitioner or any other doctor about back pain between early 2018 and July 2020, and she does not suggest that she made any such complaints or sought treatment for her lower back. However, that is not inconsistent with her account of ongoing symptoms. She does not suggest they were so severe as to prevent her from working.
Ms Goodman submits that Ms Temple was referred for scans of other body parts following the injury on 9 November 2017 not of her lower back, the inference being that it was not troubling her to any extent.
Dr Parmar’s notes do not assist in understanding why Ms Temple was referred for some scans but not of her back, but I am not persuaded that any inference can be drawn from this. Dr New noted it in his report but apparently attached no significance to it. The only inference that can be drawn is that Dr Parmar did not consider it of sufficient severity to warrant referral for scans.
The Workers Doctors records suggest that Ms Temple’s injuries resolved after
November 2017. However, those records also have difficulties. For example, Dr Lim recorded on 10 August 2020 under Past Medical History: “L) shoulder and L) thumb injuries from work (2017)”. He did not record injury to her hip or lumbar spine. Under pre-existing issues he then noted “R knee and lower back injuries from work (2017) recovered”.
Subsequent Certificates of Capacity and records show the same note. Mr McMahon submits they are simply a continuation of the history adduced by Dr Lim in his report of
11 August 2020 and are contrary to Ms Temple’s evidence of continuing symptoms.
Courts have cautioned about reliance on medical records: Davis v Council of the City of Wagga Wagga[33]; applied in King v Collins[34] and Mastronardi v State of New South Wales.[35] In Mason v Demasi[36], Basten J said apparent inconsistencies between a party’s evidence and accounts as recorded in clinical notes should be treated with caution for the reasons he outlined. Moreover, the absence of reports to a doctor of continuing symptoms is not determinative.[37]
[33] [2004] NSWCA 34
[34] [2007] NSWCA 122
[35] [2009] NSWCA 270.
[36] [2009] NSWCA 227.
[37] Bugat at [32].
That is not to say that apparent inconsistencies require no explanation. However, the Workers Doctors notes and certificates do suggest that subsequent notes repeated Dr Lim’s original note. I note that Dr Lim’s notes indicate that Ms Temple applied for annual leave as she was “fearful of reprisal if she claimed workers compensation” and she hoped things would get better. I note that Dr Giblin also said she decided to take annual leave to rest up so that things would settle down. That is not in Ms Temple’s evidence; she says the holiday was already booked before she stopped work in July 2020.
I accept Ms Temple’s evidence that her back was “never the same” after the incident on
9 November 2017. She told Dr New when she first saw him on 11 August 2020 that it had not fully resolved. Dr Silva took a history that she had had intermittent low back pain or episodic low back pain since the injury on 9 November 2017. Ms Temple described it as “niggling from her first injury”.
Considering Ms Temple’s evidence of ongoing symptoms after 2017, and considering that
Dr New and Dr Silva took histories of continuing, if intermittent, symptoms, I am not persuaded that reliance should be placed on the Workers Doctors note that she had recovered. I am satisfied that the effects of the injury had not fully resolved before she commenced employment with Woolworths.

Did Ms Temple sustain a disease injury while employed by Woolworths?

Ms Temple was employed directly by Woolworths from 3 June 2019. Her evidence is that she continued to work at the same workplace and performed the same duties as previously.
Ms Temple describes her duties as “very intense, repetitive and physical”. She describes “packing pallets all day and packing materials from one pallet and placing them on another”. The items weighed up to 20 kg and the work was repetitive. She would “pick and pack” all day except for a brief “smoko” break and half and hour for lunch. She describes duties involving having to apply pressure on the load and pallet, bending, twisting and reaching up to awkward positions to ensure it was secure. There is no evidence to suggest Ms Temple’s description of her duties was not accurate.
Ms Temple says that, over the course of 2019 and 2020, her back could be “fairly sore” after a day’s work. She says she was concerned about her employment and, as she had not had “a specific injury or accident”, she continued to work and rest up on weekends as best she could.
Mr McMahon submits that there is no cogent evidence which supports the finding that there was an increase in Ms Temple’s symptoms due to the “nature and conditions” of her employment, that she does not give evidence of the duties alleged to be causative of pain and to distinguish them from a simple continuation of symptoms from the earlier injury.
Mr McMahon submits that, rather than an increase in symptoms over time, her account is consistent with them simply being worse on one day. Further, that her failure to report her back pain is inconsistent with having made a previous workers compensation claim and having seen her doctors in June 2020 about her knee.
I do not accept that Ms Temple has not given evidence of the duties alleged to be causative of pain. She describes those duties in some detail in her statement. There is inevitably some difficulty distinguishing between the effects of her duties while employed with Allstaff from those while employed by Woolworths, because her place of employment and her duties were the same throughout. However, I accept that, during the time she was employed by Woolworths and continued to perform those duties, her back pain became worse.
Ms Temple reduced her hours during 2020 but this was so as to be available to help her mother. She has not claimed it was because of her back pain but she states that it allowed her to rest for three days in between shifts.
Ms Temple states that, on 18 July 2020, she felt like “something was going to snap or break” in back every time moved. She did not report that she was going home because of back pain because she was about to start annual leave in any event, and she hoped the pain would settle during her week off.
Ms Temple’s evidence that she left work early on 18 July 2020 because of her back pain is not challenged, and I accept her evidence. However, Mr McMahon submits it was a single instance of back pain and a continuation of her previous injury rather than evidence of any new injury or aggravation while employed by Woolworths.
Dr New, Dr Giblin and Dr Silva all considered that Ms Temple’s lower back condition had been aggravated. A difficulty with their reports is that they took slightly different histories and arrived at different conclusions.
Dr New considered the original injury had been exacerbated by the “incident at home” and that the original injury in 2017 was “substantial in contributing to her current presentation”.
Dr Silva considered that her condition was aggravated on 18 July 2020 and again on
21 July 2020. Dr Giblin considered that her employment with Woolworths aggravated her underlying degenerative condition and was the main contributing factor. His opinion is supported by the MRI evidence of pre-existing degenerative changes.
Dr New described Ms Temple as having debilitating lumbosacral pain after July 2020. An EMG study confirmed active right L4/5 radiculopathy. There is no evidence of radiculopathy following the 2017 injury and before the scans in 2020. Other than Dr Silva, all of the doctors accept she has radiculopathy.
Dr Mehjabin noted that he had discussed the report of an MRI with Ms Temple. He noted degenerative changes mainly at L4/5 and L5/S1 and there was a central posterior disc annular tear at L5/1. He noted the lower back pain was “slowly getting better” and he had referred Ms Temple to Dr New. In September 2020 he noted that an EMG showed active and chronic degeneration and changes in an L4-L5 distribution, and L4-5 radiculopathy. He noted that Ms Temple was due to have a further cortisone injection the following Monday. In
May 2021, he recorded that Ms Temple had chronic lower back pain and that she had had four cortisone injections.
Considering all of the evidence, I find there was a significant deterioration in Ms Temple’s condition between the time she returned to work in February 2018 and July 2020 when she ceased work with Woolworths. For approximately half of that time, she was employed by Woolworths.
Ms Temple is not required to establish a change in pathology, rather whether her symptoms have been made worse by her employment with Woolworths. In Federal Broom Co Pty Ltd v Semlitch[38], Kitto J said:
“There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism.”
[38] [1954] HCA 34; (1964) 110 CLR 626 (Semlitch).
In Semlitch Windeyer J said:
“The question that each [aggravation; acceleration; exacerbation; deterioration] 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.”
Burke CCJ, applying Semlitch in Cant, said (at [17]):
“The thrust of these comments is that irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.”
The proper test is whether the aggravation impacted the individual concerned. It is not necessary for the particular disease to be made worse: Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond[39] applying Semlitch and Cant.
[39] [2006] NSWWCCPD 132; (2006) 6 DDCR 79.
Considering all of the evidence, I find there was a significant deterioration in Ms Temple’s condition between the time she returned to work in February 2018 and July 2020 when she ceased work with Woolworths. For approximately half of that time, she was employed by Woolworths. I am satisfied that her condition was aggravated by her employment with Woolworths.
Section 4(b)(ii) requires that employment be the main contributing factor to the aggravation of a disease. Only Dr Giblin directly addressed this question. He said the injury was “an aggravation occurring in the course of her employment and it is only the employment which is the main contributing factor to the aggravation of the pre-existing age-related degenerative changes”.
In AV v AW[40] Deputy President Snell discussed authorities on the construction of the term “main contributing factor” and said the test involves consideration of whether there were competing work and non-work related causal factors and whether on a consideration of relevant causal factors the employment represented the main contributing factor. He said the following could be taken from the authorities:
“(a)    The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b)     The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c)     In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
[40] [2020] NSWWCCPD 9 at [77]-[78].
Ms Temple’s evidence is that, on 18 July 2020, her back pain was bad enough to cause her to leave work early. It worsened around two days later when she lifted the washing basket at home. She describes the basket as light and weighing probably less than 2 kg. Each of the specialists took a similar history. None apparently considered the second incident more causative of injury. There is no evidence of any other factor causing the aggravation.
Considering all of the evidence, I am satisfied that it supports the conclusion that
Ms Temple’s employment with Woolworths was the main contributing factor to the aggravation of her lower back condition.

Capacity

Ms Temple claims she has had no current capacity for employment since 21 July 2020. She relies on the Certificates of Capacity provided by Workers Doctors. Mr Brown submits that the doctor has had the benefit of seeing her regularly and is in the best position to assess her capacity.
Mr Brown submits that Dr New says Ms Temple would need functional and vocational assessment in order to return to work and that has not occurred. He submits that Dr Giblin’s opinion that Ms Temple could work a secondary job does not take account of the evidence of her physical limitations as a result of the injury.
Mr McMahon submits that Ms Temple has capacity to undertake work. He submits that the Certificates of Capacity provided by Workers Doctors refer to other injuries and conditions, none of which are advanced in these proceedings. Mr McMahon submits there is consensus among the orthopaedic specialists that Ms Temple has capacity for work and that her work history shows she has capacity to work in a clerical type role. Ms Goodman makes similar submissions.
Mr McMahon submits that Ms Temple has had at all material times a capacity to undertake 27 hours a week, being the hours she was working from around May 2020, earning $20 per hour. I understand that figure was based on the national minimum wage. Mr McMahon submits Ms Temple has capacity to earn $540 per week.
Ms Goodman submits, based on the reports of Dr Giblin and Dr Silva, that Ms Temple is fit for full-time sedentary work in a position such as receptionist or other shop office work, or as a shop assistant.
I prefer the opinions of the treating and assessing specialists to that of the Workers Doctors. In particular, the Workers Doctors Certificates of Capacity identify a number of additional diagnosed conditions including right hip strain, right knee strain and adjustment disorder, none of which is relied on in these proceedings. They are not a basis for attributing incapacity entirely to the back condition.
I accept that Dr New said Ms Temple had reduced capacity for work and she would require a functional and vocational assessment in order to return to work but he was satisfied nevertheless that she had capacity for employment. Dr New did not specify what he meant by “reduced capacity”.
Dr Giblin considered Ms Temple would be fit for a full-time secretary job, subject to restrictions “if necessary preceded by appropriate vocational rehabilitation”. He nevertheless considered she had capacity to work full-time. I do not accept that he did not have regard for her physical limitations because he said she was “permanently unfit for unrestricted heavy repetitive bending, lifting and twisting or associated physically demanding musculoskeletal work”. He also observed that her injuries would deteriorate as well as being subject to “material aggravation from innocuous physical events”. Nevertheless, Ms Temple’s limitations appear somewhat at odds with capacity for full-time employment in positions likely to involve sitting and standing for long periods.
Dr Silva also considered Ms Temple was fit for pre-injury hours in work as a receptionist or shop assistant with some restrictions on heavy frequent lifting and frequent bending. He asked Ms Temple about her previous employment and she said she had worked as a receptionist and also in the office of the funeral director. He considered she was fit for that kind of employment.
Considering all of the evidence, I prefer Dr New’s opinion that Ms Temple has reduced capacity for employment. It appears more in keeping with “debilitating” pain including radiculopathy.
Ms Temple was working 27 hours a week in July 2020. She had previously worked 36 hours a week up until about March 2020. The reduction in hours was not related to her back condition.
I accept that Ms Temple cannot work full time even in suitable duties because of her injuries. She has considerable physical limitations as a result of her injuries as documented by the treating and assessing specialists. I accept Dr New’s opinion that she has reduced capacity for work. Unfortunately, Dr New was not more precise than that.
Mr Brown submits that, as against Woolworths, Ms Temple’s pre-injury average weekly earnings (PIAWE) were $975 (80%= $821) and as against Allstaff, $1288.09 (80% = $1030.47). There is no dispute as to these amounts.
Allstaff accepted liability for Ms Temple’s injury on 9 November 2017 and she was paid weekly compensation benefits to February or March 2018 and section 60 expenses.
Mr McMahon submits that Ms Temple has capacity to earn between $500 and $675 per week in suitable employment, taking into account slight variations in hours per week and pay per hour. Considering that her PIAWE was different while employed by Woolworths as against Allstaff, and considering that while working for Woolworths her PIAWE was reduced because she had reduced her hours, I find that range fairly reflects her earning capacity.
Allowing Ms Temple the benefit of the imprecision in the evidence and, therefore the calculation of her entitlement, I find that during the period claimed she has had capacity to earn $500 per week and there should be an award pursuant to section 37 accordingly, based on her PIAWE whjle employed by Woolworths.

Section 22

Section 22 of the 1987 Act provides:
“(1) If --
(a) the death or incapacity of a worker, or
(b) a permanent impairment suffered by a worker as referred to in Division 4 of Part 3, or
(c)a liability under Division 3 of Part 3 to a worker, results from more than one injury to the worker, liability to pay compensation under this Act is to be apportioned in such manner as the Commission determines.
(2)     Liability to pay compensation under this Act includes--
(a) the liability of an employer (including an employer who is a self-insurer), and
(b) the liability of an insurer under a policy of insurance in respect of the payment of that compensation (including a direct liability to the worker), and
(c) a liability in respect of a claim under Division 6 of Part 4, and
(d) in the case of a worker who is partially incapacitated for work, a liability that arises because the worker is entitled to be compensated under this Act as if totally incapacitated.
(3)     Liability to pay compensation under this Act is not to be apportioned by the Commission if the parties to whom the liability relates have agreed on the apportionment.
(4) …
(5)     The Commission may, on the application of any insurer or employer concerned or of the Authority, determine a dispute as to whether—
(a) liability to pay compensation under this Act should be apportioned under this section, or
(b) any such liability should be apportioned under this section in respect of different injuries.
The determination of the Commission has effect despite any agreement on apportionment if the application for determination was made by an employer (in the employer's own right) or the Authority.”

Section 22A(1) of the 1987 Act relevantly provides that apportionment of liability under section 22 is,
“(a) in the case of the apportionment of liability between employers--to be on the basis of the relative length of the worker's employment with each employer concerned (not including any period of employment after the last relevant injury was received), or on such other basis as the Commission considers just and equitable in the special circumstances of the case”
In Roberts, President Judge Phillips said the Commission has a broad power under sections 22 and 22A to apportion liability. The test “involves a series of questions of fact going to what role the given injuries played in the subsequent incapacity and the need for treatment and medical expenses”. Apportionment involves a two-stage process: firstly a determination of liability to pay compensation and, secondly, apportionment having regard to the evidence relating to the injured worker’s capacity. Judge Phillips said this second stage involves a different inquiry:
“It involves an inquiry as to whether incapacity resulted partially from one injury and partly from another or other injuries. It also involves an inquiry as to ‘whether the injury caused or materially contributed to the incapacity’. In other words, whether the incapacity was so connected with a number of injuries that as a matter of ordinary common sense and experience it should be regarded as having resulted from all or any of them.” (Footnote references deleted)
If incapacity resulted for more than one injury, the Commission’s jurisdiction to apportion liability pursuant to section 22 is enlivened, and liability is to be apportioned in such manner as the Commission determines.
Mr McMahon submits that Ms Temple’s incapacity for work arises only from the 2017 injury and that section 22 has no work to do in this case. Mr McMahon submits that, if I find the claim against Woolworths made out, the only probative evidence is that the 2017 caused the onset and continuation of her symptoms; that injury had not completely resolved as at
July 2020; the symptoms and complaints were not new in so far as the lumbar spine was concerned; and Ms Temple had already reduced her hours in early 2017.
Mr McMahon submits that, if liability is to be apportioned pursuant to section 22, Allstaff should be determined to be 75% liable and Woolworths 25%.
Ms Goodman submits that the question of Ms Temple’s incapacity for work from July 2020 has not been properly considered by the medical practitioners other than her general practitioner, Dr Lim and Dr Calvache-Rubio, who considered it was caused by her employment with Woolworths. Ms Goodman submits that Dr Silva did not consider whether her incapacity was caused by the nature and conditions of her employment with Woolworths or the aggravation of an underlying degenerative condition. Further, that Dr New’s opinion was that it was the result of the incident in 2017, exacerbated by the incident at home.
The medical evidence is not helpful in this regard and none of the doctors specifically considered the question of apportionment.
Dr Lim’s and Dr Calvache-Rubio’s notes indicate that they understood that the 2017 injury had completely resolved. On that basis, understandably, they attributed Ms Temple’s incapacity to her employment with Woolworths.
Dr New noted that Ms Temple was off work for 14 weeks and said it was obviously “quite a substantial injury”. As discussed above, insofar as he considered the injury was substantial because of the time Ms Temple was off work, that information was not accurate.
Dr New noted that Ms Temple had been off work from July 2020 after developing pain while performing her normal duties, and it became “specifically worse” when lifting a washing basket at home. He went on to conclude that her incapacity was the result of the injury at work in 2017 which has been exacerbated by her incident at home, and that the original injury to her spine was “substantial in contributing to her current presentation”. It is difficult to know what to make of the apparent inconsistency in these statements.
Dr Giblin took a history that, on 18 July 2020, Ms Temple felt her low back was “going to snap” if she bent over. He took a history of “acute stabbing pain in her low back, when she lifted the washing basket on 21 July 2020”. He considered her injury was an aggravation occurring in the course of her employment. He appeared not to appreciate that there were two different employers.
Dr Silva considered that, based on the history, clinical and radiological findings, the “main substantial back injury” was on 9 November 2017 and the two subsequent episodes were aggravations of the original injury.
Doing the best I can with the evidence, I find that both the injury sustained on
9 November 2017 while she was employed by Allstaff and the disease injury while she was employed by Woolworths materially contributed to Ms Temple’s incapacity. It follows that the discretion in section 22 is enlivened.
Also doing the best I can with the evidence, I find that liability should be apportioned equally between Allstaff and Woolworths. In making this determination I have taken into account that the incident on 9 November 2017 caused the original lower back injury and that its effects had not resolved completely by July 2020. From around March 2018, Ms Temple continued to carry out her duties, with intermittent or episodic symptoms. Throughout 2019 and 2020 she had symptoms which worsened by 18 July 2020. From June 2019, or roughly half that time, she was employed directly by Woolworths. From the time of the deemed date of the aggravation in July 2020, she had debilitating back pain that required treatment, including four cortisone injections, that she had not previously required.
I find that Ms Temple’s employment with each respondent contributed materially in roughly equal proportions. For these reasons, I have determined that liability for payment of weekly compensation and medical expenses liability should be apportioned equally.

[2022] NSWPIC 432

3 August 2022