Temple v Woolworths Group Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Temple v Woolworths Group Limited [2021] NSWPIC 287
APPLICANT:	Rebeccah Temple
First RESPONDENT:	Woolworths Group Limited
Second Respondent:	Allstaff Australia Pty Ltd
Member:	Kerry Haddock
Date of decision:	10 August 2021
Catchwords:	WORKERS COMPENSATION- Claim for weekly benefits and medical expenses against two respondents; accepted frank injury to lumbar spine in employ of second respondent; claim of injury to lumbar spine as a result of nature and conditions/aggravation, acceleration, exacerbation or deterioration of disease in employ of first respondent; application of section 4(b)(ii) and section16 of the 1987 Act; Austin v Director General of Education, Federal Broom Co Pty Ltd v Semlitch, Cant v Catholic Schools Office and AV v AW applied.
Determinations made:	1. That there is an award for the second respondent. 2. That there is an award for the applicant against the first respondent for weekly benefits as follows: (a) At the rate of $426.25 per week from 21 July 2020 to 20 October 2020, pursuant to section 36 of the Workers Compensation Act 1987; and (b) At the rate of $280 per week from 21 October 2020 to date and continuing, pursuant to section 37 of the Workers Compensation Act 1987. 3. That there is an award for the applicant against the first respondent for medical treatment, pursuant to section 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant, Rebeccah Temple (Ms Temple) was employed by the first respondent, Woolworths Group Limited (Woolworths) and the second respondent, Allstaff Australia Pty Ltd (Allstaff) as a store person/picker/packer.

Ms Temple was firstly employed by Allstaff, which is a labour hire service, and which contracted with Woolworths. She later became employed by Woolworths, performing similar duties at the same workplace.

The applicant sustained an injury to her lumbar spine on 9 November 2017, in the employ of Allstaff, when she was struck by a forklift/pallet truck. Liability was accepted by Allstaff’s workers’ compensation insurer, AAI Limited trading as GIO (GIO) and compensation was paid. Ms Temple claims that the nature and conditions of her employment with Woolworths caused injury to her lumbar spine, or in the alternative aggravation, acceleration, exacerbation or deterioration of lumbar spine disease.
On 27 March 2018, GIO wrote to the applicant advising her that, as she had returned to pre-injury duties from 25 November 2017 [sic] and her last known treatment was on 15 March 2018, it would close its file should it not hear from her within 14 days.
Ms Temple completed a Worker’s Injury Claim Form (the Claim Form) on 10 August 2020. She recorded the date of injury as “deemed” 18 July 2020. She stated that on 21 July 2020 she was lifting a washing basket weighing less than 2 kg “(with dry clothes)” when she “felt a large pulling/stabbing pain”. She felt her back “pop”.
The applicant described her work as picking and packing pallets all day. This required her to repetitively lift, move, bend and squat. She had to pick and pack items up to 25 kg. The washing basket was not heavy, and she suffered her back injury as a result of the heavy full time picking and packing work, “or the ‘nature and conditions’ of my employment”.

Woolworths completed an Employer Injury Claim Form (Employer Claim Form) on 12 August 2020. It stated that Woolworths had received the applicant’s Claim Form and first medical certificate on 10 August 2020. The date of injury was 21 July 2020. Woolworths recorded that “As per Workers Injury Claim Form, Rebeccah reported she was lifting a washing basket with dry clothing and in the process of doing this felt a large pulling/stabbing pain. Rebeccah described feeling her back pop.” The applicant was not at work at the time of this incident but was on annual leave. The injuries recorded in the certificate of capacity (COC) were to the lower back, right hip, right knee and adjustment disorder.
The Employer Claim Form also recorded that the applicant had reported experiencing increased pain levels, but Woolworths had received limited information regarding the injury, treatment plan and capacity.

Woolworths is self-insured for workers’ compensation. Its claims are managed by Employers Mutual Limited (EML). On 17 August 2020, EML issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
EML disputed liability for Ms Temple’s claim for her lower back injury; right hip strain; right knee strain; and adjustment disorder. It disputed that she had sustained injury, pursuant to section 4 of the Workers Compensation Act 1987 (the 1987 Act); that employment was a substantial contributing factor to any injury, pursuant to section 9A of the 1987 Act; that she was either totally or partially incapacitated for work as result of a workplace injury; that medical treatment was reasonably necessary; and that the need for treatment arose as a result of a workplace injury.

By letter to icare [sic] dated 3 March 2021, the applicant’s solicitors made a claim on her behalf on Allstaff for weekly benefits and medical expenses. The letter stated that a claim had been made on Woolworths with respect to the nature and conditions of employment; and a claim was made against Allstaff in the alternative, in respect of the exacerbation, deterioration or aggravation of her underlying injuries.

The applicant lodged an Application to Resolve a Dispute (the Application) on 8 April 2021. The Application claimed that the applicant has sustained injury to her lumbar spine “as a consequence of the nature and conditions” of her employment, which included packing and unpacking pallets in a repetitive fashion all day. In the alternative, the applicant claimed an aggravation, exacerbation, acceleration or degeneration [sic] of her previously asymptomatic disease in her lumbar spine. Further in the alternative, the applicant claimed to have sustained a frank injury on 9 November 2017, when she was hit by a forklift/pallet truck, and “aggravated that injury from time to time.”

By letter dated 28 April 2021, the solicitors for GIO advised the applicant’s solicitors that the applicant’s claim had not been made on their client. Its first notification of the claim was the filing of the Application, a complete copy of which had not been received until 28 April 2021. The claim had not been “duly made” and GIO was still within the timeframes to respond to the claim.
GIO issued the applicant with a notice pursuant to section 78 of the 1998 Act on 23 June 2021. It disputed that she had sustained injury arising out of or in the course of her employment with Allstaff, pursuant to section 4 of the 1987 Act; that employment was a substantial contributing factor to injury, pursuant to section 9A of the 1987 Act; that employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease injury, pursuant to section 4(b) of the 1987 Act; and that it had last employed her in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease injury, pursuant to section 16 of the 1987 Act. GIO disputed liability for weekly benefits and medical expenses.
The first respondent lodged its Reply on 28 April 2021. In addition to the matters notified to the applicant in the dispute notice dated 17 August 2020, it sought to dispute that she had sustained injury as a result of the nature and conditions of employment, including any allegation of a disease injury. Although injury to the applicant’s right hip, right knee and/or adjustment disorder was not expressly pleaded, the first respondent disputed any allegation of such injury.
The second respondent lodged its Reply on 28 April 2021.
The Application was amended by consent at the telephone conference on 6 May 2021 to claim a general order for medical expenses, pursuant to section 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) First respondent: whether employment caused injury or the aggravation of a disease process; whether employment was a substantial contributing factor to injury/the main contributing factor to a disease injury; and capacity for work; and
(b) Second respondent: whether the applicant has recovered from the incident on 9 November 2017; capacity for work; and whether, if the applicant has sustained a disease injury, it was the last employer in employment to the nature of which the injury is due.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing by telephone on 30 June 2021.
Mr Brown of counsel, instructed by Mr Morson, appeared for the applicant; Mr Hunt of counsel, instructed by Mr Patterson, appeared for the first respondent, Woolworths; and
Ms Goodman of counsel, instructed by Ms Singer, appeared for the second respondent, Allstaff. Ms Temple was present. Ms Copping of EML and Ms Kruse of GIO also attended.

The Application was amended to substitute GIO for icare as the insurer of the second respondent.
Mr Brown confirmed that the claim against the second respondent is limited to one of a frank incident on 9 November 2017 and there is no claim of nature and conditions against it. The claim against the first respondent is a nature and conditions claim, or the aggravation, acceleration, exacerbation or deterioration of a disease of the applicant’s lumbar spine, with deemed date of injury of 21 July 2020. The applicant’s claim is purely in respect of injury to her lumbar spine.

The applicant’s claim for weekly benefits commences on 21 July 2020. The parties have agreed that her pre-injury average weekly earnings (PIAWE) with the first respondent were $975 per week; and with the second respondent $1,030.47 per week.

Mr Brown and Mr Hunt made oral submissions at the hearing. It was not possible in the time remaining to hear Ms Goodman’s submissions and directions were made for the filing of written submissions.
The second respondent was directed to lodge and serve submissions by 12 July 2021; the applicant was directed to lodge and serve any submissions in reply by 23 July 2021; and the first respondent was directed to lodge and serve any submissions in reply by 30 July 2021.
The second respondent and applicant have lodged submissions. No further submissions have been lodged by the first respondent.

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a)    The Application and attached documents;
(b)    Reply by first respondent and attached documents;
(c)    Reply by second respondent and attached documents;
(d)    Application to Admit Late Documents dated 24 June 2021 filed by the first respondent;
(e)    Application to Admit Late Documents dated 24 June 2021 filed by the second respondent, and
(f)    Application to Admit Late Documents dated 29 June 2021 filed by the applicant.

Oral Evidence

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

FINDINGS AND REASONS

Evidence of the applicant, Rebeccah Temple

The applicant’s first statement is dated 8 December 2020.
The applicant first worked for Woolworths in about 1991/1992. She then worked as a picker and packer for Faulding Pharmaceuticals, and had “a number of different jobs” in her 20s and 30s. Ms Temple also worked as a funeral assistant for about eight years. She used a trolley as much as possible to move the coffins, and rarely had to lift them. If she had to do so she would ensure there were four or six others to assist.
The applicant never had any problems with work or employment and worked hard until her first injury with Allstaff on 9 November 2017.
The applicant was employed by Allstaff on a contract arrangement as a store person/picker/packer. On 9 November 2017 a pallet truck ran over a battery, which caught fire and exploded. A pallet truck driver reversed quickly away from the fire. He hit the applicant and dragged her a short distance. She sustained injuries to her left shoulder, right thumb, right knee, right hip and lower back.
Ms Temple kept working for about two days, although she was in pain. Her injuries did not resolve as quickly as she had hoped. The workplace physiotherapist, who would come to the warehouse, advised her she had sustained soft tissue injuries and should see a doctor. She came under the care of Dr Parmar at Richmond Marketplace Medical Centre and had a scan of her right thumb and left shoulder. She is not sure whether she was referred to a specialist, but she did not have surgery for either injury.
After about two or three months, Ms Temple obtained a full pre-injury clearance and continued to work at the Yennora Distribution Centre. She worked 9.5 hour shifts, with a half hour lunch break, being paid for 36 hours per week. On 3 June 2019, she was offered a
full-time position at Woolworths Yennora Distribution Centre. This was for slightly less pay, but came with the security of permanency, sick leave, annual leave, and, she hoped, long service leave.
The work was very intense, repetitive and physical. Shortly after commencing with Woolworths, the applicant’s shifts were changed from the morning to the afternoon, but the duties were the same. They included packing pallets all day, packing material from one pallet to another. The items would vary. There would be cases of Coca Cola, water, flour and various other groceries. The drinks tended to be the heaviest, weighting from 15 kg to 20 kg. Although some items were lighter, it was repetitive work, so there was never a reprieve. She would pick and pack all day, except for a 12-minute smoko and half hour lunch break.
The applicant and her colleagues had to meet certain targets and KPIs (key performance indicators) so they “could not slack off and waste time”. They always worked hard as they were grateful to have their jobs and scared and paranoid about losing them.
The applicant explained that picking and packing involves picking up, lifting, twisting and dropping items all day for 9.5 hours, except for a couple of small breaks. Once pallets were picked and repacked onto the pallet truck, they were moved to where they needed to be in the warehouse. The workers would manually wrap the loads to stop them moving or falling off. This was fairly physical work, having to apply pressure on the laden pallet and bend, twist and reach up to awkward positions to ensure the wrapping was secure.
During 2019 and 2020, the applicant’s 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 on weekends as best she could. In 2019 and 2020, she was working four days per week, allowing her back to rest for three days. She dropped to three days per week in about March 2020 to be more available to help her mother. She thought she would be able to manage her back pain.

On 16 June 2020, the applicant’s right knee was becoming sore and collapsed a few times while she was packing pallets. She reported this and was seen by the Woolworths physiotherapist, who told her to go on light duties for about two weeks. She returned to her pre-injury employment at the end of June and kept working as best she could.
In about June/July 2020, it was noticeable that Woolworths was reducing staff in the warehouse. The applicant was again very worried about losing her job. She “kept on keeping on” as best she could but continued to have pain in her back and right hip. She took annual leave beginning on 19 July 2020. Her last shift was supposed to be on 18 July 2020, but she only worked for about an hour and a half because she was in a lot of pain. It felt like something was going to snap or break in her back every time she moved. She did not report that she was going home because of her back pain, as she was about to start leave.

The applicant had hoped her back would settle down during the week she had off work. On 21 July 2020, she bent over to lift a washing basket. It had only a few clothes in it, and would have weighed no more than 2 kg, but probably less. As she lifted the basket, she felt immediate pain in her lower back.
The applicant went to Nepean Hospital about a week later, as she continued to be in a lot of pain. She was referred back to her general practitioner, and she went to Glenwest Medical Centre at Glenmore Park. Dr Mehjabin referred her to spinal surgeon Dr Charles New.
Dr New organised for the applicant to have scans and a cortisone injection. Dr Mehjabin was not comfortable with workers’ compensation claims and, as she thought she needed a workers’ compensation doctor, she came under the care of Workers Doctors in Parramatta. She had continued to be certified as unfit for work and remained under Dr New’s care.

The applicant did not consider that bending over at home and lifting a very light washing basket caused her back injury. She does no other physical activities besides her work and believes her injury has to be either an aggravation of her previous injuries or caused by the nature and conditions of her employment as a picker and packer.
The applicant lodged her claim on EML, which declined liability. She had exhausted her sick leave and annual leave and had been on Job Seeker since 7 September 2020.
Ms Temple continued to be in pain in her back and radiating down her right leg, which she felt in her foot. Her foot felt numb, and she felt a regular stabbing pain in her right buttock. She had pain in her right knee most days. She was to see Dr New on 14 January 2020 [sic: 2021] and was unsure whether she would come to surgery. She took Gabapentin and melatonin, and over the counter pain killers if the pain was too bad. Driving was not easy, with taking heavy medication and she could not sit for long. She had had to seek help with her household duties. She could not sleep for longer than two to three hours without being woken by pain. She could not work and without the help of the insurer, “can’t see myself getting better and back to work any time soon”.
The applicant made a second statement dated 25 June 2021.
Ms Temple had reviewed the reports of Dr Thomas Silva, dated 26 May 2021 and 17 June 2021. It appeared there was some confusion as to whether she was working following her injury on 13 November 2017 [sic]. She referred to the medical certificates issued by
Dr Parmar.
The applicant’s back slowly improved from November 2017 until she returned to work on or about 26 February 2018. She would not say it had completely recovered but she was keen to get back to work, as she was absent from 14 November 2017 to 26 February 2018.

Despite the applicant’s WorkCover certificates indicating she was fit for partial and suitable duties, it was the policy of Woolworths and her employer to only allow her to return to work when she had a full pre-injury clearance. This motivated her to return to work quicker, as suitable duties would not be provided, and she was worried that if she was off work for long periods she would lose her job. (Emphasis in original).

During her time off work, the applicant was at home mostly trying to rest her back and strengthen her core through physiotherapy and exercise physiology. She was off work from November 2017 to February 2018. Following her return to work, her back was a little better but not perfect and it has never been as good as it was before her initial injury on 13 November 2017 [sic].

The applicant strongly disagreed with Dr Silva’s comment that she had undressed and redressed without difficulty. She had to sit to take off and put on her pants, as she has difficulty bending to put on and take off her lower garments. She referred to a nerve conduction test on 2 September 2020, attached to her statement, that confirmed she had an active right L4/5 radiculopathy.
The statement attached payslips for the period from November 2017 and 2018, which confirmed the applicant was not working any hours and being paid workers’ compensation; and a letter from GIO dated 28 February 2021 [sic: 2018], which stated she was not working 15 hours per week. It also attached correspondence between her physiotherapist, rehabilitation provider and return to work provider.

Medical evidence

Richmond Marketplace Medical Centre

The clinical records of Richmond Marketplace Medical Centre commence on 17 March 2017.
On 14 June 2017, Dr Omar Brdarevic recorded a history that the applicant had pain in her left shoulder and neck: “Repetitive, heavy lifting”. He noted x-ray and ultrasound.
On 13 November 2017, Dr Anshu Parmar recorded that on 9 November 2017, the applicant was working at Woolworths warehouse. Another worker was reversing a machine with two full pallets. The applicant was hit by the pallets and pressed against her machine and pallets. She complained of pain in her right knee, right lower back and left shoulder. It appears that the applicant’s back was either “most painful” or “not painful”. It is impossible to read the entry. It does record “no spinal tenderness”.
On 14 November 2017, Dr Parmar recorded that the applicant had lower back pain with no radiation. There was once again no spinal tenderness. She had decided to claim workers’ compensation. A COC was issued. The COC recorded that the date of injury was 9 November 2017, when the applicant “got hit by a machine at work”. The diagnoses were lower back pain, right knee and left shoulder injury. The applicant was referred to In2motion for physiotherapy.
On 17 November 2017, Dr Parmar recorded that the applicant had a call from “someone called Greg Alvisio” about workers’ compensation. She was unsure if he worked for Allstaff or GIO. He was “yelling at her” and did not give her a claim number. She had been unable to see a physiotherapist. She had back pain with movement. It is apparent from the records that Mr Alvisio was employed by Allstaff.
Ms Lauren Grace of In2Motion reported on 20 November 2017 that the applicant had presented for treatment to her lower back, left shoulder and right knee.
Dr Parmar recorded on 21 December 2017 that the applicant’s back pain was improving with physiotherapy. Her ROM (range of motion) was improving, and she was doing exercises at home.
On 4 January 2018, the applicant’s back pain was again improving.

On 29 January 2018 Dr Parmar recorded that the applicant was improving with physiotherapy and “back pain better”, with no radiculopathy. The employer did not provide light duties. There is a notation that appears to read that the physiotherapist did not feel the applicant’s left shoulder was strong enough for her pre-injury duties. There is no indication that the condition of her back would prevent a return to pre-injury duties.
On 16 February 2018, Dr Parmar recorded that the applicant had been doing home exercises. She said she got pain after what appears to be “lifting” and what may be “body ache the next day”. She had a good range of motion in her left shoulder. There was no radiculopathy.
On 23 February 2018, Dr Parmar recorded that the applicant was happy to trial pre-injury duties. She noted “no radiculopathy”.
On 15 March 2018, Dr Parmar recorded that the applicant had been doing pre-injury duties with “no problems”. She had two more physiotherapy appointments.

In2Motion – Physiotherapy/Exercise Physiology

Ms Grace reported to Dr Parmar on 20 November 2017.
Ms Temple had been referred for treatment of her lower back, left shoulder and right knee. She also reported pain in her right thumb after the same injury at work.
Ms Grace assessed non-specific lower back pain with right lumbo-pelvic instability and associated muscle spasms. The applicant’s hip rotator muscles showed minimal weakness. There was no significant injury of the right knee, and Ms Grace was yet to thoroughly assess the shoulder and thumb.
Mr Scott Cone, physiotherapist, reported to Ms Veronica Lun on 12 February 2018, with a “quick update” of Ms Temple’s progress. Ms Lun was employed by Workers Health Centre, which was managing the applicant’s return to work.
Mr Cone recorded that the applicant could lift 16 kg floor to waist, 10 times with nil issues, and displayed good quality manual handling techniques. She had mild left shoulder symptoms when lifting 16 kg from the floor to overhead 10 times. These dissipated after she was prompted to change her gripping technique. She completed unilateral pulling of 30 kg, 20 times, with good technique, bilateral pulling of 50 kg, 20 times and unilateral push of 10 kg, 10 times.
Mr Cone’s future management plan was to continue progressing Ms Temple’s strengthening and conditioning to prepare her for the lifting and carrying required at work.
On 14 February 2018, Mr Cone reported to Dr Parmar that Ms Temple had been completing her home exercise program but was having difficulty with the time period that she would be required to complete when returning to work.
Based on delayed onset muscle soreness experienced by the applicant post her home exercise program, Mr Cone recommended another week before she returned to work, unless she was able to return to modified hours.
Mr Cone reported on 19 February 2018 that Ms Temple had been completing her home exercise program, which involved simulating work conditions, without any difficulty. She had completed the exercise for both the time and volume required at work. Based on this, he was happy to recommend that she return to work next week.

Active Occupational Health Services – Rehabilitation Provider

Ms Sophie Birkbeck, occupational therapist, reported to GIO on 28 November 2017.
Ms Birkbeck recorded a consistent history of the injury on 9 November 2017. Ms Temple stated that she injured her left shoulder, right thumb, right lower back and right knee. She had not realised the extent of her injuries, only noticing her right knee was sore. The Safety Officer iced her severely swollen knee. She assured the officer she was able to continue work. Ms Birkbeck recorded that she felt financial pressure to do so and did not want to lodge a claim.
The applicant stated she was happy with her job with Allstaff, which allowed her to work around her daughter’s school hours and support her needs. Her previous employment included funeral director and administration officer for BOC Healthcare.
The applicant reported a constant ache in her right lower back, intermittently radiating into her right buttock/down her right thigh and up her back. It was aggravated by trunk extension or twisting, prolonged standing or sitting. Ms Temple rated the pain as 7.5/10. Her shoulder pain and right thumb pain were both rated 4/10.
At a case conference on 24 November 2017, Dr Parmar opined that Ms Temple had sustained soft tissue injuries and was expected to return to pre-injury duties within 12 weeks of commencing treatment on 20 November 2017. She certified the applicant with capacity to work for four hours per day, four days per week, with restrictions on lifting, sitting and standing; no pushing/pulling/squatting/twisting/bending; and she was to have a 15-minute break every two hours.
The applicant’s pre-injury job description stated that she would be allocated one to two pallets to load consecutively. She was expected to pack 60 to 350 boxes per total order. Normally she would pick four jobs over three hours, with both pallets to be packed within 80 to 90 minutes. Ms Temple used a pallet jack to manoeuvre pallets to locations as instructed, to retrieve a box. When loading was complete, the pallet was driven to the staging lane for loading. Ms Temple’s average pick rate was 100%. There was time pressure to pack an order that was physically heavy and repetitive.
Ms Birkbeck equated the applicant’s pre-injury duties to medium work. This was defined as lifting 22.7 kg maximum occasionally, with frequent lifting and/or carrying objects weighing 11.3 kg.
The first return to work plan, dated 28 November 2017, recorded that Allstaff was supportive of a return to work, but suitable duties were not available. Ms Temple was keen to return to work but presented with “elevated yellow flags that could impact her return to work”.

Workers Health Centre – Rehabilitation Provider

Ms Lun completed Return to Work Upgrading Program No 1 on 21 December 2017. The nature of the applicant’s injury was recorded as back pain, left shoulder, right knee and right thumb injury.
Ms Lun noted that suitable duties were unavailable. The applicant had been certified with capacity for some type of employment from 21 December 2017 to 4 January 2018, for five hours per day, four days per week. Her management plan was physiotherapy and analgesia.
The proposal was that the applicant would be reviewed by Dr Parmar on 4 January 2018 to discuss a staged increase in her capacity, culminating on 22 February 2018 with a proposed return to pre-injury hours (32 hours per week), and pre-injury duties, which involved lifting/carrying 16 kg and pushing/pulling and bending/twisting/squatting as required.
Ms Lun issued a Return to Work Closure Report dated 3 May 2018.
Ms Lun reported that a case conference was conducted with Ms Temple and Dr Parmar on 21 December 2017, when Dr Parmar agreed on a gradual upgrading plan. It was agreed that the applicant would return to her pre-injury duties on 23 February 2018.
The applicant had commenced a trial of her pre-injury duties on 26 February 2018 and had not experienced any difficulties. She had obtained a final pre-injury duties COC on 15 March 2018. Her rehabilitation file was considered closed, and she would be moved into the 13 week sustainability phase.
The completion date was 25 May 2018, and Ms Lun was to provide feedback at that time.
Ms Temple was encouraged to continue with an independent exercise program. If she had any difficulties with the performance of her duties, she should immediately advise her supervisor. She should attend her nominated treating doctor for a medical review if required.

Glenwest Medical Centre

The clinical records of Glenwest Medical Centre commence on 25 February 2020.

On 29 July 2020, Dr Ishrat Mehjabin recorded that the applicant had moderate to severe back pain two days ago, after she lifted a heavy basket full of clothes. She had been seen in the Emergency Department and MRI was arranged. The pain was better with Endone and the applicant was able to walk. Dr Mehjabin recorded “imp[ression] – muscle strain most likely ?disc bulge”

Dr Mehjabin discussed the result of the MRI scan with the applicant on 4 August 2020. He recorded that it showed degenerative changes, mainly at L4/5 and L5/S1. There was a central posterior disc annular tear at L5/S1. The applicant’s back pain was slowly getting better. She was to see Dr New the next day.

On 6 August 2020, Dr Mehjabin recorded that Dr New had arranged a bone scan and cortisone injection. He had advised the applicant to claim WorkCover, and Dr Mehjabin informed her that he did not do WorkCover. She would go to her regular GP.

Dr Mehjabin continued to treat the applicant. He recorded on 3 September 2020 that she was due to have lower back cortisone injection. She was seeing “workers’ comp doctor”, Dr Eric Lim.

On 3 May 2021, Dr Mehjabin recorded that the applicant was still struggling to get WorkCover. She was very anxious, stressed, going through financial pressure, emotionally labile, with poor sleep, low self-esteem, and worried about her future. She wanted to see a psychologist.
On 4 May 2021, Dr Mehjabin recorded that the applicant had chronic lower back pain. She had had four cortisone injections.
Dr Mehjabin continued to treat the applicant for unrelated matters. There are no further entries relating to the injury to her back.

Mr David Jones – Physiotherapist

Mr Jones is the onsite physiotherapist referred to by Ms Temple in her statement.
Mr Jones recorded on 17 June 2020 that the applicant was picking. She turned to walk and felt her left knee pop and give way. She rubbed her leg and kept going. It happened three more times and she reported it to her team leader. She felt all right between the popping sensation, slightly heavy, but not bad. This had happened a few more times, with the applicant finding it more when her leg was straight.
The applicant had previously injured her right knee in a collision on the floor. This was managed under workers’ compensation. This may be a reference to the 2017 injury, but it is not certain.
Mr Jones prescribed education and anti-inflammatories and was to review Ms Temple the following week.
On 24 June 2020, the applicant presented with reduced lateral right knee pain. Her treatment consisted of taping and exercises. She was happy to trial full duties. If symptoms occurred or she was uncomfortable, she would return to light duties.
Mr Jones continued to treat the applicant in June 2020 and July 2020. On 28 July 2020 he recorded that she continued to perform her exercises well. She was on full picking duties. She was advised she could continue exercise review or otherwise continue exercise at home. She was to book another review with the return-to-work coordinator if she felt it was needed. It is clear that the applicant was not treated on 28 July 2020, as she was on leave, and in fact presented that day with back pain at Nepean Hospital

Nepean Hospital

Nepean Hospital issued a Discharge Summary dated 28 July 2020.
The applicant had presented with lower back pain. Its cause is not recorded. On examination, she had pain in the L2 to L5 area, radiating to the right buttock. She could not straighten her leg during the examination. There was no muscle weakness or loss of sensation.
The applicant was booked for an outpatient physiotherapy appointment. Her pain improved with pain killers and she was discharged home. She had been provided with a referral for MRI and a prescription for Endone.

Workers Doctors

The clinical records of Workers Doctors commence on 10 August 2020.
Dr Eric Lim recorded that on 18 July 2020, whilst at work, the applicant suffered back, hip and right knee injuries due to repetitive lifting and bending at work. She initially had right knee pain on 16 June 2020 but kept working after seeing the company physiotherapist. On returning to work, she developed back pain and applied for annual leave, as she was “fearful of reprisal” if she claimed workers’ compensation, “hoping things would get better”.
The applicant noticed her pain became worse after trying to lift a washing basket on 21 July 2020. She went to Nepean Hospital on 28 July 2020. Dr Lim noted pre-existing issues were right knee and lower back injuries “from work (2017) recovered.”
Dr Lim diagnosed lumbar spine radiculopathy; L4/S1 degenerative changes; L5/S1 disc protrusion and annular tear with nerve root compression; right hip strain; and adjustment disorder. He certified the applicant with no work capacity. He opined that she had suffered back, hip and knee injuries due to the nature of her work.
On 17 August 2020, Dr Sebastian Calvache-Rubio recorded that the applicant had severe [back] pain, referred to her lower legs, last month. She had been slowly improving. She had seen a neurosurgeon and was awaiting MRI and bone scan. She had had a back injury three years ago and returned to pre-injury duties without symptoms.
Dr Calvache-Rubio reported to Woolworths on 24 August 2020. He repeated the history obtained by Dr Lim. He opined that the nature of the applicant’s work was consistent with the type of injury in her lower back and hips that had developed. She required weekly physiotherapy, further investigation, a cortisone injection and ongoing review with her neurosurgeon.
Dr Calvache-Rubio opined that the applicant was unfit for work. Her pain was severe and disabling. It was unclear when she would be able to resume working 27 hours per week.
On 28 August 2020, physiotherapist “Karen” recorded that the applicant’s low back pain was getting worse – “started in the morning”. She did not recall any change in activity.
On 7 September 2020, Dr Calvache-Rubio recorded that the applicant had severe back pain with radicular symptoms. She had had a cortisone injection that day, with temporal relief, although the pain was returning.
Dr Calvache-Rubio recorded on 21 September 2020 that the applicant had a partial response to cortisone injection. Her pain was more tolerable. She was having ongoing physiotherapy and was known to Dr New.
On 14 October 2020, Dr Morgan Mo recorded that the applicant’s lower back pain initially improved after cortisone injection but was worsening. She had right lower limb radicular pain and associated numbness, which was intermittent after the injection but now more constant. She had also reported coccyx pain for the past three weeks. Dr Mo noted “?radicular”.
On 9 December 2020, Dr Calvache-Rubio recorded that the applicant now had bilateral referred leg pain, shooting sensation and foot pain. She was to be reviewed by Dr New in January 2021.
On 3 March 2021, Dr Calvache-Rubio recorded that the applicant’s pain was deteriorating. She was not coping with pain flareups. Her claim had been declined. Her pain had flared up since stopping physiotherapy, which she was not able to attend. She was also psychologically distressed and would require assessment with “Dr Ben”.
Dr Ben Dickson recorded on 17 March 2021 that the applicant’s mood was “[up?] and down at the moment”. The insurance process was exacerbating her anxious symptoms. There was the impact of chronic pain, worse since physiotherapy was declined. The applicant had seen a psychologist in 2009, when she was “in DV relationship”. She was on antidepressants from 2010 to 2011 and her symptoms resolved with Pristiq.
Dr Dickson diagnosed the applicant with adjustment disorder, the symptoms being perpetuated by insurance barriers and chronic pain/financial stressors.

Dr Charles New – Orthopaedic Surgeon

Dr New reported to Dr Mehjabin on 11 August 2020.
Dr New recorded a history that the applicant had developed debilitating pain in her back and right buttock over the last two weeks. She described the pain as an aching burning sensation, with no pins and needles or radicular pain. Physical therapy and minor analgesia had not given her much relief.
The applicant had been off work after developing pain while performing her normal duties. She told Dr New she was lifting a washing basket at home when the pain became specifically worse. There was a background history of a workplace injury in 2017, when she was crushed between two pallets by a ride-on pallet machine. She injured her lower back, left shoulder, right thumb and left [sic] knee, and was off work for 14 weeks. Dr New described this as obviously quite a substantial injury, and the applicant stated the pain had not fully resolved since that time. He opined that this latest episode could be an exacerbation of her prior injuries.
Dr New recorded that the applicant had restrictions with regard to washing and dressing; lifting; walking; sitting; standing; sleeping; sexual relations; social life; and travel by motor vehicle.
MRI confirmed age related changes in the lumbar spine. There was dehydration of the L4/5 and L5/S1 disc and some lateral canal stenosis.
On examination, Dr New recorded that the applicant had a protected sitting and standing attitude, an antalgic gait favouring her right side, decreased lumbar lordosis, markedly reduced lumbar spinal movement and disruption of her normal lumbar pelvic rhythm. She had a positive Trendelenburg sign on the right and decreased straight leg raise. She had grade 4 weakness in her extensor hallucis longus.

Dr New had sent the applicant for a nerve conduction study and EMG, as well as a technetium bone scan. He had also sent her for an MRI of the sacroiliac joint, given that she had had a crush injury. She was to have nerve root sleeve blocks.
Dr New opined that the applicant would struggle with her normal duties on returning from leave and may have to go on to office selected duties if they were available. He was to review her in six weeks.
On 23 September 2020, Dr New provided a report to Unified Healthcare Group, which had apparently requested it on behalf of Ms Temple’s solicitors. He repeated the history he had recorded on 11 August 2020. It does not appear that he had seen the applicant since that date.
Dr New reported that the applicant’s major problem was low back pain. Nerve conduction study and EMG confirmed an active right L4/5 radiculopathy, but she stated her back pain was worse than any radicular pain. She suffered stress incontinence. She also had depression and anxiety and had been diagnosed with an adjustment disorder.
The applicant had debilitating lumbosacral pain and pain in the L5 and S1 nerve root distribution on the right. She described this as an aching burning sensation with pins and needles (Dr New reported on 11 August 2020 that she did not have pins and needles). The pain was exacerbated by walking, changing positions, coughing, sneezing and prolonged standing. She could lift only very light weights of 2 kg to 3 kg if they were conveniently positioned. She could walk for approximately 100 metres and sit or stand for half an hour.
Dr New diagnosed chronic low back pain and right sided L4/5 radiculopathy. This would result in reduced capacity for work. Ms Temple had not been able to return to work since her latest injury, “on the back of her history from 2017”.
Dr New opined that Ms Temple’s incapacity was a result of the injury at work in 2017, exacerbated by the incident at home. The original injury to her spine was substantial in contributing to her current presentation. Her long-term prognosis was guarded. She would require treatment for her radiculopathy.

Dr Peter Giblin – Orthopaedic Surgeon

Dr Giblin was qualified by the applicant and reported on 19 October 2020.
Dr Giblin recorded a history of the injury on 9 November 2017, when Ms Temple was dragged a few metres by a forklift. She was able to stay at work but was a bit sore in her shoulders and right knee and sought physiotherapy. When her symptoms did not settle, she saw her GP and had about 10 weeks off work. She was treated conservatively and in 2018 was back at work on full time unrestricted normal duties.
Dr Giblin also recorded the history of the applicant’s right knee injury on 16 June 2020. She noted that her right hip and low back had become sore the following week, but she put up with the symptoms and “pushed through”.
On 18 July 2020, Ms Temple felt her low back was going to snap if she bent over, so she went home an hour and a half into her shift. She decided to take some annual leave to rest so that things would settle down.
On 21 July 2020, the applicant bent over to lift a small washing basket and experienced acute stabbing pain in her low back. The pain persisted despite rest and analgesics and she attended Nepean Hospital on 28 July 2020. She had remained off work since.
Ms Temple had had one steroid injection and medication. She was attending physiotherapy twice a week and relying on medication. She saw her GP every two weeks.
The applicant’s main complaints were persisting right sided low back and right leg symptoms. They were described as intermittent pain down the posterior aspect of her right thigh and a constant feeling of numbness on the lateral border of her right foot and back of her calf.
On most days, Ms Temple could not walk more than 400 metres, stand for more than 15 minutes or sit for more than 20 minutes. She did not sleep for more than three hours at a stretch. She had moderate restrictions on her personal and household activities.
Dr Giblin provisionally diagnosed soft tissue injury to the applicant’s low back. The injury was an aggravation occurring in the course of employment and it was only the employment that was the main contributing factor to the aggravation of the pre-existing age-related degenerative changes.
The applicant’s condition was stable, and her prognosis was not unreasonable, except that her symptoms would persist with exacerbations and remissions, would be associated with permanent physical limitations and there was the prospect of possible future surgical considerations.
Dr Giblin opined that Ms Temple was permanently unfit for unrestricted heavy repetitive bending, lifting and twisting, or associated physically demanding musculoskeletal work. She would be fit for a full-time sedentary job, avoiding those activities, and if necessary preceded by appropriate vocational rehabilitation. Her injuries would deteriorate and be subject to material aggravation from innocuous physical events.
Dr Giblin did not exclude the possibility of surgery, which may take the form of, but not be limited to, lumbar discectomy. In summary, Ms Temple “has the perennial and insoluble problem of a blue-collar worker with a bad back for which there is just no totally satisfactory medical or surgical solution”.
The mainstay of the applicant’s treatment was common sense based self-imposed physical restrictions. Her current management would be conservative, symptomatic and supportive, mainly directed by her family doctor, assisted by associated health workers from time to time.

Dr Thomas A Silva – Orthopaedic Surgeon

Dr Silva was qualified by Allstaff and reported first on 26 May 2021.
Ms Temple described three incidents of low back pain. The first was on 9 November 2017, at work; the second on 18 July 2020, at work; and the third on 21 July 2020, at home, when she lifted a light washing basket. She was on annual leave at the time.
Dr Silva recorded a consistent history of the injury on 9 November 2017. Ms Temple was initially absent from work for 14 weeks, after working for two days post-injury. She returned to her full hours and pre-injury duties until 18 July 2020, when, without any further back injury, she experienced increasing low back pain, which had been niggling from her first injury. From 9 November 2017 she still had low back pain radiating to the thighs.
On 18 July 2020 the applicant was having some problems with collapsing or giving way of her right knee. She took annual leave and on 21 July 2020 her back pain worsened when she lifted a light laundry basket.
The applicant’s treatment had consisted of four injections to her lumbar spine, with slight relief from the last two. Until 10 weeks ago, she had physiotherapy with some relief. She was taking pain medication.
Dr Silva recorded complaints of constant low back pain, radiating along the right leg to the dorsum of the right foot. The applicant could sit or stand for 20 minutes, which relieved her back pain.
Dr Silva referred to an MRI lumbar spine report by Dr K Ho. The report is dated 31 July 2020. Dr Ho had detected degenerative changes, mainly at L4/5 and L5/S1, and a central posterior annular disc tear at L5/S1, but no neuroforaminal encroachment at L5/S1. There was only mild narrowing of bilateral lateral recesses, but no definite impingement of the descending nerve roots at L4/5.
Dr Silva diagnosed lumbar strain without clinically confirmatory lumbar radiculopathy. He assessed 7% whole person impairment (WPI) as a result of the injury on 9 November 2017. It appeared that from that date the applicant had intermittent low back pain or episodic low back pain that was aggravated on two subsequent occasions. They did not attract apportionment from the total 7% WPI. Specifically, the “home incident” on 21 July 2020 did not attract any separate WPI from the total, all of which was attributable to the injury on 9 November 2017.
In Dr Silva’s opinion, Ms Temple was fit for pre-injury hours, with some restrictions on heavy frequent lifting of 10 kg and frequent bending. She had worked as a receptionist and in the office of a funeral director, also working at funerals. Dr Silva thought she was fit for receptionist or office work, with the restrictions he had recommended. Conservative treatment was “the way to go”. This would consist of pain medication when necessary, and regular exercises, probably swimming in a heated pool.
Dr Silva attributed the applicant’s WPI and present physical condition, attracting restrictions on heavy frequent lifting and frequent bending, to the Woolworths [sic: Allstaff] incident on 9 November 2017.
On 17 June 2021, Dr Silva provided a supplementary report. He had been advised that the applicant had provided an incorrect history that she had been off work for 14 weeks after the incident on 9 November 2017 and that the documentary evidence indicated her absence was two weeks and three days, after which she returned to her pre-injury duties. Dr Parmar gave her a final clearance on 15 March 2018, stating she was fit for pre-injury duties with no restrictions.
Dr Silva was told that Ms Temple told “the doctor” (which doctor is not specified) of a back injury three years ago, after which she returned to pre-injury duties without symptoms. The letter of instruction to Dr Silva is not in evidence, so this response is unclear.
Dr Silva opined that if the applicant’s absence after the injury on 9 November 2017 was only two weeks and three days, and not 14 weeks, and she returned to full pre-injury duties until 18 July 2020, it was reasonable to conclude that the injury had resolved to 0% WPI.
The claim of back pain on 18 July 2020 was therefore a new back injury. The applicant told Dr Silva she went on leave, but it would appear it was not compensation leave. She did not elaborate on that. The 27 July 2020 [sic] low back injury at home lifting a linen basket appeared to be an aggravation of 18 July 2020 and therefore the 7% WPI should be apportioned as to 4% for the 18 July 2020 claim of back pain at work and as to 3% WPI for the 21 July 2020 incident at home.
Dr Silva reviewed the recommendation from Ms Temple’s physiotherapist on 12 February 2018 that she return to full duties; and Dr Parmar’s final clearance on 15 March 2018. He noted that the applicant had co-morbidities that could masquerade as back aches, that is right uretic calculus with hydro-nephrosis. There was also a history of uterine fibroid causing dysmenorrhea.

SUBMISSIONS

The applicant’s submissions and those of the first respondent have been recorded and a transcript is available. The second respondent and applicant have provided written submissions. I will therefore provide only a summary of the submissions.

Applicant

The applicant submitted that she was off work for almost four months after the injury on 9 November 2017. By 15 March 2018, she had been certified fit for pre-injury duties and she continued with Allstaff until 3 June 2019, when she was offered a position with Woolworths. Her work while employed by Woolworths was intense, repetitive and physical. She was required to work at pace and lift items up to 15 kg to 20 kg. There was only a short break and her KPIs were based on time, meaning she had to work quickly.

During 2019 and 2020 the applicant’s back would be fairly sore after a long day’s work, on the background of the injury on 9 November 2017. There was no specific injury, but she had to rest on weekends. In 2019 and 2020 she had to reduce her hours of work, partly to help her mother but also to manage her back pain.

The applicant submitted that she had struggled through June and July 2020 with pain in her back and right hip. She only worked for an hour and a half on 18 July 2020, which was supposed to be her last day of work before she went on leave. She quite candidly recorded that she didn’t report it. She said that was because she was going to be able to rest while on leave. She hoped it would be better by the time she returned to work, but that wasn’t the case. The washing basket she lifted on 21 July 2020 is estimated to weigh no more than
2 kg. She felt immediate pain in her lower back, and by 28 July 2020 had to present to Nepean Hospital.

The applicant submitted that the above was a summary of the events that caused her incapacity. The premise of her case is that she sustained injury on 9 November 2017 that never quite resolved, and throughout the period from November 2017 to 21 July 2020 that injury was there, although not at a degree of symptomatology that required significant time off work. She submitted that the injury was aggravated by the nature of her work with Woolworths. The combination of the index incident on 9 November 2017 and the nature and conditions of her work with Woolworths caused her condition to become so symptomatic by 21 July 2020 that she is incapacitated and as a result is entitled to claim weekly benefits under section 33 of the 1987 Act.

The applicant submitted that I must be satisfied that the injury on 9 November 2017 resulted in incapacity, that is that there is a causal connection. She referred to the decision in State of New South Wales v Rattenbury [2015] NSWWCCPD 46 (Rattenbury), which applied the principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796. She submitted that I must be satisfied that there was a material contribution to the incapacity.

The applicant referred to the clinical records of Dr Parmar, the COCs and GIO’s list of payments that support her evidence that she was off work for about 14 weeks after the injury on 9 November 2017. There was a period of about five months when she had got her body to the point that she could trial pre-injury duties.

The applicant submitted that her claim against Woolworths is an aggravation of the injury she sustained on 9 November 2017. She must establish that employment was the main contributing factor to the aggravation, not the incapacity. She submitted that the cases are not mutually exclusive, as consistent with Rattenbury, there can be multiple causes of incapacity.

The applicant submitted that it is readily available to find that the nature and conditions of her employment aggravated the injury on 9 November 2017; and if I find that, I am entitled to make an award against both respondents.

As to her capacity for work, the applicant submitted that from 21 July 2020 she had no current work capacity, relying on the certificates issued by Dr Lim. The contrasting opinion is that of Dr Silva. She submitted it is based on the assumption she is suffering from a soft tissue injury, but her injury is far more severe.
In reply the applicant submitted that it is agreed that her PIAWE against Woolworths is $975 and against Allstaff it is $1,030.47.
The applicant submitted that it is undoubtedly correct that her incapacity arose as a result of the accepted 2017 injury, for which Allstaff is liable, but the claims against both respondents are not mutually exclusive.
The applicant submitted that Allstaff’s submission that the 2017 injury was of no moment is made in the complete absence of any medical evidence supportive of the proposition. It would be improper to use the fact that there was no radiological investigation or specialist referral as evidence of the nature of the 2017 injury or whether it had resolved. There is clear contemporaneous evidence that suggests radicular pain arising from the low back.
The applicant submitted that when the restrictions in place from 25 November 2017 are closely examined, in reality they mean she had no current work capacity, consistent with the history she provided to, inter alia, Drs New and Silva.
The applicant’s case against Allstaff is that she had the 2017 injury and managed to get back to work, but her injury ultimately deteriorated in July 2020, causing the incapacity. Her symptoms were going to be worse when she went off work than when she managed to get back to work. One would also expect that her symptoms at both times would not be identical, which is the case.
The applicant submitted that the Commission should find she has no current work capacity. She has an active right L4/5 radiculopathy, and her treating GP has certified her with no capacity from 21 September 2020 to 23 June 2021 (the last certificate before the arbitration). The COCs should be accepted. Dr Silva did not have the neurophysiology test report;
Dr New noted she would need functional and vocational assessment, which has not occurred; and Dr Giblin’s assessment of capacity should not be accepted, as he did not take into account the limitations he recorded, which are consistent with her statement.

First respondent

The first respondent submitted that it is not disputed that an injury occurred on 9 November 2017 and the applicant was involved in another incident in July 2020, lifting a clothes basket. What is in dispute is whether the nature and conditions of her employment with Woolworths caused injury or aggravation of the disease process. I would need to be satisfied that the nature and conditions of employment caused an aggravation of the symptoms, not the pathology. Woolworths submitted that the evidence does not allow me to make that finding.
The first respondent submitted that the applicant’s evidence that she wasn’t prepared to mention back symptoms because of fear for her job does not sit with the fact that she reported knee symptoms and had treatment in-house. There was no mention of back symptoms to Mr Jones.
The first respondent submitted that the applicant may well have been suffering back symptoms right through from November 2017, but that’s not the test in terms of its liability.
I would have to be satisfied that there had been an aggravation of the symptoms, and not just a continuation of what was there from before. It adopted the applicant’s submissions about the medical evidence. It submitted that Dr Silva’s supplementary report is of no value. What is important is his initial opinion after considering the correct history.
The first respondent referred to the Claim Form, in which the applicant did not say she had symptoms before lifting the washing basket, or ongoing symptoms during 2019 and 2020.
Dr New did not take a history of aggravation of symptoms while performing her normal duties. Dr Giblin did not attribute her right hip and low back symptoms to the nature and conditions of her work between June 2019 and July 2020. His opinion that there was an aggravation is not supported by reasoning. Dr Lim’s opinion is that the applicant had recovered from right knee and low back injuries in 2017. From her own evidence, that is not the case.

The first respondent therefore submitted that the contemporaneous medical evidence does not support the applicant’s case that what she was doing between June 2019 and 21 July 2020 was causative of the injury. Its alternative submission is that I would not be satisfied in terms of the application of section 9A of the 1987 Act, or that employment was the main contributing factor to any aggravation; and the opinion provided by Dr Silva, with a correct history, is right.

As regards capacity, the first respondent submitted that both Dr Giblin and Dr New considered the applicant had some residual capacity. Neither is of assistance other than giving a description of the type of work for which she would be fit. The first respondent submitted that she would have capacity to earn in the order of $400 to $500 per week.

Second respondent

The second respondent has provided written submissions, dated 13 July 2021.

The second respondent submitted that the applicant’s PIAWE is $975 per week if her claim against Woolworths succeeds; and $1,030.47 per week if Allstaff is found to be liable. The claim for weekly compensation is based only on injury to the back, despite the applicant also suffering injury to her left shoulder, right thumb, right knee and right hip.

The second respondent observed that the only investigations undergone by the applicant following the 2017 injury were of her right thumb and left shoulder. The inference it asks the Commission to draw is that any injury to the back was of no moment. In particular, the applicant did not at any time complain about pain radiating from her back into her leg/s. Although she only returned to pre-injury duties on 15 March 2018, she was certified as having capacity to return to work on a graduated basis from 25 November 2017.

The second respondent submitted that by March 2018 the applicant had recovered from the 2017 injury. This is supported by Drs Lim and Calvache-Rubio. It is noted on each COC after the 2020 injury. It submitted that it was the nature and conditions of the applicant’s work that was causing her back to be sore.

The second respondent adopted the first respondent’s submission that it is not consistent that the applicant reported difficulties with her right knee on 16 June 2020 and saw the company physiotherapist but was concerned about reporting problems in her back.

The second respondent submitted that the work the applicant did in the Yennora Distribution Centre – intensive repetitive bending and lifting work – over 2019 and 2020 was in the nature of the aggravation of a disease condition commencing in 2019 and continuing over 2020 until she ceased work on 18 July 2020. This is a section 4(b)(ii) (of the 1987 Act) injury and in accordance with section 16 of the 1987 Act, the employer that last employed the applicant, in this case Woolworths, is liable to pay the applicant compensation. This is supported by
Dr Giblin’s opinion.

The second respondent submitted that the reference in Dr Silva’s report dated 26 May 2021 to “niggling back pain” is incorrect. The references by the applicant to pain in her back are not from the 2017 injury, but from the work she was performing over 2019 and 2020. On all the evidence, the applicant did not complain of any back pain post the 2017 injury after March 2018 and before 2019/2020.
The second respondent submitted that Dr Silva does not appear to be aware that since 2019 the applicant has been employed by Woolworths. Nor has he considered whether the work she performed since 3 June 2019 aggravated her condition, and therefore her incapacity since 18 July 2020 is related to her employment with Woolworths, rather than from an injury on 9 November 2017 from which she had recovered. His second report is also based on an incorrect history that the applicant was off work for only two weeks, but he did note she was cleared for pre-injury duties with no restrictions on 15 March 2018.

As regards capacity for work, the second respondent submitted that the applicant is fit for full time sedentary work, for instance as a receptionist or in other office work or as a shop assistant.

The second respondent finally submitted that the applicant had recovered from the injury of 9 November 2017, such that she needed no treatment and had no incapacity for work after March 2018. Her injury in July 2020 was caused by the nature and conditions of her employment and/or the aggravation of a disease condition, being the underlying degenerative condition of her back. As such, any compensation is to be paid by Woolworths.

SUMMARY

Injury

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.”

Section 16 of the 1987 Act provides:

“Aggravation etc of diseases--employer liable, date of injury etc

(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease--
(a) the injury shall, for the purposes of this Act, be deemed to have happened--
(i) at the time of the worker's death or incapacity, or
(ii) if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
(2) Any employers who, during the 12 months preceding a worker's death or incapacity or the date of the claim (as the case requires), employed the worker in any such employment shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.
(2A) The Commission is to determine the contributions that a particular employer is liable to make on the basis of the following formula, or on such other basis as the Commission considers just and equitable in the special circumstances of the case--

"C" is the contribution to be calculated for the particular employer concerned.

"T" is the amount of compensation to which the employer is required to contribute.

"A" is the total period of employment of the worker with the employer during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned.

"B" is the total period of employment of the worker with all employers during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned.
(3) In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.
(4) This section does not apply to an injury to which section 17 applies.”

The medical evidence in this matter is largely unsatisfactory. None of the specialists who has provided evidence appears to have obtained a correct and complete history. The applicant’s evidence, too, differs in part from the histories she has provided to the various practitioners who have treated her or who have been qualified to provide an opinion.
The applicant’s first statement provides little detail about her duties with Allstaff, assumed to be because she relies solely on the frank injury on 9 November 2017 and not on the nature and conditions of her employment.

The applicant’s evidence about her duties at Woolworths is more detailed. She has described what picking and packing involved. The work was very intense, repetitive and physical, including lifting some heavy articles. There were targets and KPIs to meet. The work involved bending, twisting and reaching. There is no evidence that contradicts this evidence, and I accept it as an accurate description of Ms Temple’s duties.
As regards her return to work after the injury on 9 November 2017, the applicant initially merely stated that she eventually obtained a clearance for pre-injury duties and returned to work. In her second statement, she said she “would not say” her back had completely recovered, but she was keen to return to work. She also stated that her back has never been as good as it was before the 2017 injury.
In her first statement, the applicant described her symptoms in December 2020 as continued back pain, which radiated down her right leg, and was felt in her foot. She had a regular stabbing pain in her right buttock.
Dr Mehjabin has recorded no history of the injury in 2017. No history of any injury was recorded by Nepean Hospital, although I attach little weight to that omission.
Dr Lim recorded that the applicant had recovered from the injury in 2017; and Dr Calvache-Rubio recorded that after that injury she had returned to her pre-injury duties without symptoms. Dr New recorded a history that her back pain had not fully resolved after the 2017 injury. Dr Giblin merely recorded that in 2018 she was back at work on full time unrestricted duties. Dr Silva recorded that her back pain had been niggling from the first injury. He also recorded that she had had pain radiating to her thighs since that injury, which does not accord with any other history.
The evidence from Dr Parmar, In2Motion and Ms Lun suggests that the applicant made a good recovery from the 2017 injury. Her rehabilitation file was considered closed some three months after she returned to work. Ms Lun told her that if she had any difficulties with her duties, she should immediately advise her supervisor.
I accept the applicant’s evidence, which is supported by payslips, evidence from the rehabilitation providers, correspondence from GIO and a list of payments, that she did not return to work about two weeks after the injury on 9 November 2017. Rather, although she was certified as having capacity for work, she did not return to work with Allstaff until 26 February 2018.
It should be borne in mind that the applicant was certified with capacity for work at least from 25 November 2017. The reason she did not return to work was because Allstaff was unwilling or unable to provide her with suitable duties. Her evidence is that it was the policy of both Allstaff and Woolworths to allow her to return to work only when she had a clearance for full pre-injury duties. The applicant also had other injuries that affected her capacity for work.
There is no lay or medical evidence that the applicant reported any issues with her lumbar spine, either to Allstaff or her GPs, or sought any treatment, after her return to work in February 2018. She was referred for neither specialist treatment nor investigation of her 2017 back injury. That does not mean the injury was of no moment, as submitted by the second respondent, but it is an indication that none of her treating practitioners regarded it as so serious as to require further intervention. They did refer her for investigation of her right thumb and left shoulder. She did not undergo cortisone injections, as she did after July 2020.
Ms Temple then commenced work with Woolworths on 3 June 2019. Her evidence is that during 2019 and 2020 her back would be sore after a day’s work. She did not report any problems with her back, or make any claim, both because she was concerned about her employment and because there was no specific injury or accident.
The respondents submitted that the applicant’s evidence of concern for her employment should she report an injury does not sit with the fact that she reported her knee symptoms on 16 June 2020 and was treated by Mr Jones. She did not mention back symptoms to him.
Mr Jones recorded that the applicant had felt her knee “pop” and give way. This happened three more times, and she then reported it. This was a frank injury that, it must be assumed, prevented the applicant from performing her duties at the time. It is likely that she had little choice but to report it, particularly given her evidence about targets and KPIs. It differs from the insidious onset of back pain that she was able to manage by resting on the days when she was not required to work.
The applicant’s evidence is that she kept on as best she could. On 18 July 2020, it “felt like something was about to snap or break” in her back. She did not report it because she was about to go on leave and hoped it would settle during her time off work. When she bent to pick up a washing basket at home on 21 July 2020, she felt immediate lower back pain. She has described the basket as light.
I note that Dr Mehjabin has referred in his clinical records to “a heavy basket full of clothes”.
I do not believe anything turns on this. He has also recorded that this incident occurred two days before (that is, on 27 July 2020), which is incorrect. It is necessary to approach clinical records with some caution: Nominal Defendant v Clancy [2007] NSWCA 349; and I accept the applicant’s evidence that she already had symptoms that caused her to leave work early on 18 July 2020.
None of the practitioners who treated Ms Temple after her injury in 2017 recorded radiculopathy. Dr Parmar recorded in January and February 2018 that there was no radiculopathy. Ms Birkbeck had recorded pain intermittently radiating to the right buttock/thigh in November 2017.
In contrast, Dr Lim diagnosed lumbar spine radiculopathy in August 2020.
Dr Calvache-Rubio recorded that the applicant had severe back pain, referred to her lower legs, in July 2020. EMG study performed by Dr Samuel Kim on 2 September 2020 is reported as being consistent with an active right L4/5 radiculopathy, and Dr New diagnosed chronic low back pain and right sided L4/5 radiculopathy. Dr Giblin recorded right sided symptoms, including numbness on the lateral border of the foot and the back of the calf. By
9 December 2020, Dr Calvache-Rubio noted that the applicant had bilateral referred leg pain, shooting sensation and foot pain. Dr Silva did not find radiculopathy.
The applicant’s evidence and the medical evidence suggests a significant deterioration in her condition between February 2018, when she returned to work with Allstaff, and 2020, when she ceased work with Woolworths. She did not attend any hospital emergency department until July 2020.
While Dr New opined that the applicant’s incapacity for work was the result of the incident in 2017, exacerbated by the incident at home, he has recorded no details of the physical work she was doing for Woolworths and he accepted the history that the pain had not fully resolved since 2017. She had not been able to return to work since her latest injury (lifting the washing basket) “on the back of her history from 2017”.
Dr Giblin had the correct history that the applicant returned to work on full time unrestricted duties in 2018, although he has recorded that she was off work for about 10 weeks, rather than about 14 weeks. He has also not recorded the other injuries she sustained when she was struck by the forklift. He diagnosed soft tissue injury, which he attributed to aggravation of degenerative changes. Employment was the main contributing factor to the aggravation.
Dr Giblin has not discriminated between Ms Temple’s employment with Allstaff and with Woolworths. However, accepting as I do her evidence about the work she did for Woolworths, his opinion supports that employment with Woolworths aggravated her underlying degenerative condition, and was the main contributing factor to the aggravation.

Dr Silva has recorded that the applicant was having problems with her right knee on 18 July 2020, but he has also recorded that she had back pain that day. Her evidence is that it was her back symptoms that caused her to leave work early.
Dr Silva has also not recorded any details of the work the applicant was doing for Woolworths. The second respondent submitted that he did not appear to be aware that she had been employed by Woolworths since 2019. As the letter/s of instruction to him are not in evidence, it is not clear what, if anything, he was told about the change in employer. He was qualified by Allstaff, so it had the opportunity to provide him with an accurate history.
Dr Silva assessed the applicant with 7% WPI. In his initial report, he attributed all the impairment to the injury on 9 November 2017. The fact that he has done so does not mean that any incapacity the applicant may have for work is attributable to that injury. The matter to be determined is whether she has an incapacity for work that results from an injury arising out of or in the course of her employment. As was held in Rattenbury, there may be multiple causes of incapacity. Section 16 of the 1987 Act applies if it is determined that the applicant has sustained a “disease injury”.
Dr Silva opined that the applicant’s condition was aggravated on two occasions after the injury on 9 November 2017. The first was on 18 July 2020 and the second on 21 July 2020.
Dr Silva referred to being asked his opinion in respect of the applicant’s physical condition and “relationship to employment”. The employment concerned was apparently not specified. He was provided with three “dates of incidents”, being 9 November 2017; 18 July 2020; and 21 July 2020. He related Ms Temple’s physical condition “attracting restrictions on heavy frequent lifting and frequent bending” to the injury on 9 November 2017. He was apparently not asked to provide an opinion as to whether the nature and conditions of Ms Temple’s work for Woolworths in 2019 and 2020 may have contributed to her condition or restrictions. I have already said I accept her evidence about the nature of that work.
Dr Silva was then provided with the incorrect history that the applicant was absent from work for only two weeks and three days after the injury in November 2017. He concluded on that basis that the injury “had resolved to 0% WPI”; and the injury on 18 July 2020 was a new back injury. He apportioned 4% WPI to the “claim of back pain at work” on 18 July 2020; and 3% WPI to the incident at home on 21 July 2020. Once again, there is no reference to the nature of the work the applicant did for Woolworths in 2019/2020.
Dr Silva also noted the evidence of Mr Cone in February 2018 and Dr Parma in March 2018 regarding the applicant’s clearance for pre-injury duties, with no restrictions; and
co-morbidities that could “masquerade” as back aches. He therefore confirmed the amendment to his original report.
I have found the medical evidence of limited assistance in determining the dispute, for the reasons above. However, in analysing all the evidence, certain conclusions may be drawn.

The applicant sustained injury to her lumbar spine, as well as other injuries, on 9 November 2017, while employed by Allstaff. She was off work for about 14 weeks but was certified as having some capacity for work by 25 November 2017. She was not provided with suitable duties, so she remained off work until 26 February 2018.
The applicant returned to her pre-injury duties with Allstaff without restrictions. The evidence as to whether she continued to have symptoms in her lumbar spine varies, as noted above. There is no evidence that she sought further treatment or made any report of injury before leaving Allstaff’s employ.
The applicant commenced work for Woolworths on 3 June 2019. She was engaged in physical and at times heavy work for Woolworths. I infer that her work for Allstaff was similar, as it was a labour hire organisation, and it placed her with Woolworths. She has given no evidence about targets or KPIs with Allstaff (Ms Birkbeck has, however, referred to “time pressure”).
The applicant stated that her back was fairly sore after a day’s work during 2019 (when she worked for Allstaff until June 2019) and 2020. She rested between work days, and reduced her days to three days per week in March 2021, although her evidence is that she did so to allow her to help her mother.
The applicant left work early on 18 July 2020, due to back pain. She was about to commence a period of planned leave, when she hoped her condition would settle down. However, she lifted a washing basket at home on 21 July 2020 and felt immediate lower back pain. This led her to attend Nepean Hospital on 28 July 2020 and seek treatment from her GP.
The applicant has not resumed work since 18 July 2020, and she claims to have had no capacity for work since that date.
The MRI scan dated 31 July 2020, which appears to be the first investigation of the applicant’s lumbar spine, showed degenerative changes, mainly at L4/5 and L5/S1, and a central posterior annular disc tear at L5/S1. EMG study dated 2 September 2020 is reported as being consistent with an active right L4/5 radiculopathy. With the exception of Dr Silva, the practitioners who have treated or examined the applicant since July 2020 on the whole accept that she has radiculopathy.

As against Woolworths, the applicant claims, in the alternative, that she has sustained injury to her lumbar spine due to aggravation, acceleration, exacerbation or degeneration [sic: deterioration] of a disease, pursuant to section 4(b)(ii) of the 1987 Act. For convenience, I will use the term “aggravation” where the phrase “aggravation, acceleration, exacerbation or deterioration” appears in that section.
In Austin v Director General of Education (1994) 10 NSWCCR 373, Clarke JA, applying Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 (Federal Broom), said a judge, faced with the potential application of the “disease” provisions, should ask the following questions:
(a)     Was the applicant suffering from a disease?
(b)     If so, was there an aggravation, acceleration, exacerbation or deterioration of it?
(c)     If so, was her (his) employment a contributing factor?
(d)     If so, did a total or partial incapacity for work result from such aggravation, acceleration, exacerbation or deterioration?
The applicant has degenerative changes in her lumbar spine, demonstrated on MRI scan. This constitutes a pre-existing disease. It appears to me that Dr Giblin was correct when he said Ms Temple had pre-existing age-related degenerative changes. Dr New agreed with this. I therefore answer “yes” to the first question posed by Clarke JA.
The next question to be considered, therefore, is whether there has been an aggravation of the disease. The evidence suggests that there has. The applicant has the symptoms that have been recorded by the various practitioners who have treated or examined her, including pain that Dr New described as debilitating. All but Dr Silva accept that she now has radiculopathy.
In Federal Broom, Kitto J agreed with what Moffitt J had said in the Court of Appeal:
“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.” (Emphasis added).
Windeyer J said in Federal Broom:
“The 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”.

Burke CCJ applied Federal Broom in Cantv Catholic Schools Office [2007] NSWCC 37; (2000) 20 NSWCCR 88, where he said:
“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, then, is whether the aggravation impacted the applicant. It is not necessary for the disease to have been made worse: Cabramatta Motor Body Repairers (NSW) Pty Ltdv Raymond & Pegrin Pty Ltd [2006] NSWWCCPD 132; (2006) 6 DDCR 79 (Raymond), applying FederalBroom and Cant.

Acting Deputy President Moore referred to Raymond in Rural Press Limited v Hancock [2009] NSWWCCPD 160 [at 67], where she said:
“The proper test then is whether the aggravation to which the employment was a contributing factor had some tangible effect on the worker. It is not necessary for the particular disease to be made worse…” (emphasis in original); and [at 74]:
“It is clear that symptoms or pain brought on by a work activity may constitute a relevant aggravation even though no pathological change in the underlying condition has occurred (Commonwealth of Australia v Beattie [1981] FCA 88; (1981) 35 ALR 369). What is necessary is to decide whether the manifestation of symptoms is sufficient to establish ‘injury’, or, in other words, whether the symptoms were made worse by the work duties.” (Emphasis added).
I accept that the applicant’s symptoms have become objectively and demonstrably worse during the period of her employment with Woolworths. The case law is clear that she need not establish that the pathology of her condition has been aggravated by her employment. As Burke CCJ said in Cant, there is a relevant aggravation if her symptoms have increased and become more serious. I therefore determine that she has sustained aggravation of a disease in the course of her employment with Woolworths.
In order to establish injury pursuant to section 4(b)(ii) of the 1987 Act, the applicant must establish that employment with Woolworths was the main contributing factor to the aggravation of the disease.
The definition of “main contributing factor” was discussed by Deputy President Snell in AV v AW [2020] NSWWCCPD 9 at [65] – [78].
Snell DP discussed the previous authorities, including Flanagan v NSW Police Force [2017] NSWWCCPD 33; State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71; Mannie v Bauer Media Pty Ltd [2016] NSWWCCPD 47; and Lilyvale Hotel Pty Limited t/as The Shangri-La Hotel v Bradley [2016] NSWWCCPD 62.
Snell DP summarised the discussion as follows:
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
The following may be taken from the above:
(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.”

As Snell DP found, the issue of “main contributing factor” is not purely a medical question.
Dr Giblin is the only doctor to have directly addressed the issue. His opinion was that it was only Ms Temple’s employment that was the main contributing factor to the aggravation of her pre-existing age-related degenerative changes. There are no identified competing factors. Given the nature of the duties she performed for Woolworths, I have determined that the applicant’s employment was the main contributing factor to the aggravation of the disease.
Pursuant to section 16(1) of the 1987 Act, as the applicant’s injury consists in the aggravation of a disease, it is deemed to have happened at the time of her incapacity.
I accept that the applicant has an incapacity for work. The deemed date of injury is therefore 21 July 2020.
Section 16(1)(b) of the 1987 Act provides that compensation is payable by the employer that last employed the worker in employment that was a substantial contributing factor to the aggravation of the disease. Section 4(b)(ii) has been amended to require that employment is the main contributing factor to the aggravation. The applicant’s employment with Woolworths was the main contributing factor to the aggravation. Compensation is therefore payable by Woolworths.
I am satisfied that the applicant has an incapacity for work as a result of injury on 21 July 2020, when she was employed by the first respondent.
There will be an award for the second respondent; and the award for weekly benefits and medical expenses will be made against the first respondent, Woolworths.

Incapacity

The applicant submitted that she has no current work capacity, relying on the COCs issued by Workers Doctors. I do not accept that she has no work capacity. The COCs include not only the injury to her lumbar spine, but right hip strain, right knee strain and adjustment disorder, none of which is relied on in this Application.
Dr New was of the opinion that the applicant may have to perform office work, if it was available. Dr Giblin, who was qualified by the applicant, believed she could work full time, performing sedentary duties, and if necessary, preceded by vocational rehabilitation. Dr Silva also opined that she was fit for her pre-injury hours and could perform receptionist or office work. All three orthopaedic specialists, therefore, found that she has some capacity for work, and all three referred to her restrictions. I prefer their opinions to those of her GPs.
The applicant was working four days per week (36 hours per week) until, she stated, about March 2020 when she began to work three days per week (the Employer Claim Form suggests she began to work part-time on 12 May 2020). It was submitted on her behalf that she reduced her working hours not only to allow her to assist her mother, but also to allow her to manage her back pain. That is not precisely the evidence she gave.
However, the applicant was working for 27 hours per week as at the date of the injury, and
I accept that she may not be able to work full time, even performing suitable duties. Dr Giblin opined that her injuries would be subject to material aggravation from innocuous events. That would be likely to place restrictions on the hours she was able to work, and probably affect her ability to find and keep employment.
Apart from the somewhat imprecise opinions expressed by Drs New, Giblin and Silva, I have little evidence as to the type of work the applicant may be able to perform. She has experience of office work and worked for a funeral director. She would obviously not be able to move coffins but would be able to perform the clerical duties associated with that service.
The current national minimum wage is $20.33 per hour. If the applicant were able to work for 27 hours per week, at $20.33 per hour, in some office-based or receptionist work, her capacity to earn would be $548.91 per week. The first respondent submitted that her capacity to earn was from $400 to $500 per week. Allowing for periods when she may not be fit for work due to aggravation of her condition and the likelihood that she would have periods out of the workforce as a result, I determine that she has at all material times had the capacity to earn $500 per week in some suitable employment. The award of weekly benefits will reflect that finding.

The applicant is entitled to an order for payment of her medical expenses, pursuant to section 60 of the 1987 Act.
The orders are as set out in the Certificate of Determination.

[2021] NSWPIC 287

10 August 2021