Toufiq v Aldi Stores

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Toufiq v Aldi Stores [2021] NSWPIC 417
APPLICANT:	Muhammad Toufiq
RESPONDENT:	Aldi Stores
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	18 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits; determination of whether there was a workplace injury (section 4 of the Workers Compensation Act 1987 (the 1987 Act)) and if so whether applicant’s employment was a substantial contributing factor to the injury (section 9A of the 1987 Act); Held - worker was injured when he was bending and lifting a box during a ‘freezer run’ and that work was a substantial contributing factor to the injury.; order for weekly payments pursuant to section 36 and section 37 of the 1987 Act.
DETERMINATIONS MADE:	1. Amend Application to Resolve a Dispute to claim weekly benefits as follows: (a) From 16 November 2020 to 1 December 2020 at the rate of pursuant to s 36 of the Workers Compensation Act 1987 (the 1987 Act); (b) From 2 December 2020 to 25 April 2021, and (c) From 26 April 2021 to date and continuing. 2. Respondent to pay the applicant weekly benefits as follows: (a) $688.51 per week from 16 November 2020 to 1 December 2020 pursuant to s 36(1) of the 1987 Act; (b) $579.80 per week from 2 December 2020 to 25 April 2021 pursuant to s 37(1) of the 1987Act, and (c) $51.55 per week from 26 April 2021 to date and continuing pursuant to s 37(3) of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

The applicant, Muhammad Toufiq (Mr Toufiq), was employed by the respondent, Aldi Stores (the respondent), as a store assistant. The respondent was self- insured at all relevant times.
Mr Toufiq alleged that he sustained injury to his lumbar spine in the course of employment on 31 August 2020 when he was working on the “freezer run” and bent down to lift a box on top of the chest freezer or fridge.
Mr Toufiq made a claim for weekly benefits and medical treatment.
On 11 September 2020 the respondent confirmed that the workers compensation claim by Mr Toufiq had been accepted.
On 28 September 2020 the respondent issued a work capacity decision.
On 13 November 2020 the respondent issued a s 78 Notice disputing liability for the back injury on 31 August 2020.
A review notice was issued by the respondent on 15 February 2020 maintaining the decision dated 13 November 2020.

ISSUES FOR DETERMINATION

The parties agree that the following issues remained in dispute:
(a)    Whether Mr Toufiq sustained an injury to his lumbar spine arising out of or in the course of employment with the respondent pursuant to s 4 of the 1987 Act.

(b)    Whether Mr Toufiq’s employment with the respondent was a substantial contributing factor to the injury to the lumbar spine pursuant to s 9A of the 1987 Act.

(c)    Whether Mr Toufiq had an entitlement to weekly compensation due to partial or total incapacity for work from 16 November 2020 to date and continuing.

PROCEDURE BEFORE THE COMMISSION

The parties attended a telephone conciliation conference and arbitration on 8 September 2021. The matter was part-heard and adjourned for further hearing on 5 October 2021. Mr Toufiq was represented by Mr Stefan Mueller, who was instructed by Mr Sean Wright of Burke and Mead Lawyers. The respondent was represented by Mr Simon McMahon, who was instructed by Mr Greg Guest of Sparke Helmore Lawyers. Ms Gorman from QBE, the claims agent for Aldi Stores (A Limited Partnership) Workers Compensation Self Insurance, attended the conciliation conference and arbitration on 8 September 2021. An interpreter in the Urdu language, Sheharyar Shoaib, attended the conciliation conference and arbitration on 8 September 2021 but was not present on 5 October 2021 due to some emergency. Mr Mueller and Mr Wright advised that the conciliation conference and arbitration could proceed despite the interpreter’s absence.
I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertions 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 taken into account in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents, and
(c)    all documents attached to the Application to Admit Late Documents dated
16 August 2021 filed by the respondent.

Submissions

The submissions of the parties during the arbitration were recorded and I do not propose to repeat each of the arguments of counsel in these reasons.
However, the respondent submitted Mr Toufiq had not sustained an injury to his back on 31 August 2020. Further, there were issues concerning Mr Toufiq’s credit and the surveillance footage taken in February and March 2021 demonstrated that Mr Toufiq was capable of doing things that he claimed he was unable to do and raised questions as to his self-reporting as to pain and his capacity for work. Mr McMahon submitted that there should be a finding that Mr Toufiq did not suffer any ongoing incapacity for work from early 2021 on.
Mr Toufiq’s counsel submitted that he had sustained an injury to his lumbar spine on 31 August 2021 while doing the freezer run and that employment with the respondent was a substantial contributing factor to the injury to the lumbar spine. Further, Mr Mueller submitted that Mr Toufiq was totally incapacitated for work until 26 April 2021 but from 26 April 2021 onwards was capable of earning about $500 a week in suitable employment.

FINDINGS AND REASONS

Evidence of Muhammad Toufiq

In a statement dated 7 June 2021, Mr Toufiq said that he was employed on a part time basis as a store assistant at the Salamander Bay Aldi store. He said that on 31 August 2020 he was at the Newcastle Aldi store running the “freezer load”, which was a shift completed between 6.00 am and 8.30 am that involved replenishing frozen goods in the store chest fridge/freezers with goods from the main freezer store of the supermarket. Mr Toufiq said that the majority of the frozen goods were packaged in boxes weighing approximately 10 kg to 15 kg and were wheeled into the store on pallets using an electric or manual pulling device.
Mr Toufiq said that in order to replenish the store fridge, he bent down to pick up one of these boxes of goods and attempted to lift the box onto the top of the chest fridge/freezer. He stated that in doing so, he experienced immediate onset of pain in his lumbar spine, although at the time he did not understand the severity of what he had done. He said he continued with his tasks for a short period of time and then reported the incident to the store manager within five minutes and an online incident report was completed.
Mr Toufiq said the store manager attempted to find him other suitable duties for the remainder of his shift, and he started work on the front register. He said he attempted to complete these duties on the till which mainly required him to be seated scanning items for customers, but he was unable to complete these duties due to ongoing lumbar spine pain and discomfort. He said he left work at approximately 12.00 noon, having been originally rostered to work until 3.30 pm or 4.00 pm.
Mr Toufiq stated that on leaving work he drove home and called his general practitioner, Dr Abbod. He said that he later attended Dr Abbod on 2 September 2020 and was referred for a CT scan of the lumbar spine. Mr Toufiq said he later attended Dr Abbod on 7 September 2020 and obtained a WorkCover certificate of capacity. He said he was certified for some capacity for employment with restrictions being placed on his lifting/carrying capacity, pushing/pulling ability and bending/twisting/squatting ability for the period 7 September 2020 to 21 September 2020. On 11 September 2020 he was advised that his workers compensation claim had been accepted and he was paid weekly benefits and medical treatment expenses.
Mr Toufiq stated that on 17 September 2020 he attended Dr Abbod who certified him as totally unfit for work for the period 17 September 2020 to 1 October 2020 and recommended that he undergo independent medical examination and an MRI of the lumbar spine.
Mr Toufiq stated that he underwent an MRI of the lumbar spine on 29 September 2020 and later attended an independent medical examination with Dr Panjratan on 19 October 2020.
Mr Toufiq said that he had never hurt his back anywhere else, and he never had days off work at Aldi because of any back pain. He stated that he had never sustained any injury to his back prior to the subject incident. He stated that he had never complained to any of his doctors about injuring his back or having problems with the back until the incident at work in August 2020.
Mr Toufiq said that he was aware of closed‑circuit television footage in the possession of the respondent which displayed him restocking a freezer at work. He stated that the footage he had seen was in a file labelled “ING-0406” and ran for 33 seconds and did not display him for the entirety of the shift he worked that day. He wrote:
“In the footage, I am replenishing stock in the store fridge with goods from a cardboard box. As far as I can recall, this is after I had bent down to lift the box on top of the fridge/freezer, which is approximately 1100mm high.
As I have stated, I did not understand the extent of my injury following bending down to pick up the box did (sic) continue with my task for a short period of time (as displayed on the footage) but reported the incident to my store manager within five minutes and an online incident report was completed and submitted.
I do also recall that prior to this, the shelving inside the fridge/freezer collapsed, causing goods to fall down onto goods within the fridge, requiring me to bend down inside of the unit and re-organise the display.”
Mr Toufiq stated that he did not engage in any heavy physical activity such as sports, other work, heavy gardening or anything of that like which would have caused a back injury.
Mr Toufiq stated that following conservative treatment he was referred to Dr Mitchel Hanson, neurosurgeon, for review, on 29 January 2021. He stated that Dr Hanson advised that no surgery was recommended and referred him to Dr Volschenk for consultation and review of his lower back pain and radiculopathy as a result of the work injury. He said that Dr Hanson also recommended he undergo exercise physiology to assist his return to work. The applicant stated that following the declinature of his claim he was unable to attend on Dr Volschenk as he could not afford the treatment. He stated that he had been completing his home‑based exercise routine as prescribed by the exercise physiologist, but no longer attended physiotherapy as he found the treatment aggravated his symptoms.
Mr Toufiq stated that he wanted to return to work on suitable duties or otherwise with proper medical assistance and support as he was suffering desperately with the loss of income, especially as his wife had also suffered a workplace injury. He stated that on 10 May 2021 his general practitioner wrote to the respondent reporting that Mr Toufiq had seen improvement in his lumbar condition following multiple sessions of physiotherapy and exercise physiotherapy. Mr Toufiq said Dr Abbod reported he was to refrain from heavy lifting and bending for a period of three months but otherwise was able to perform light and medium duties at work. He stated that he was waiting for a response from the respondent concerning whether any suitable duties were available to him.

Evidence of James Plowman

In a statement dated 2 February 2021, James Plowman confirmed that Mr Toufiq was working at Aldi Newcastle on 31 August 2020. He said that he had delegated Mr Toufiq a register till and to run the freezer load. He stated that just before opening Mr Toufiq reported his back was not feeling “too well and asked to be on the registers instead of the rest of the freezer load”. Mr Plowman stated that after completing the incident report, Mr Toufiq informed him that he was still sore even though he was on the registers. Mr Plowman said he called Mr Toufiq into the office with the area manager, Patricia Jaworski, and they sent him home early. He recalled that Mr Toufiq mentioned he was going to see a doctor. Mr Plowman stated that as part of the incident report process he pulled CCTV footage of incident onto a USB flash drive and confirmed that it was Mr Toufiq in the footage.

Evidence of Patricia Jaworski

In a statement dated 2 February 2021, Patricia Jaworski stated that she was at the Aldi Newcastle store at the time of Mr Toufiq’s injury on 31 August 2020 and spoke with him in person on that day. Ms Jaworski said that at about 11.30 am Mr Toufiq and Mr Plowman entered the office to cash Mr Toufiq’s till so that he could go home. She wrote “Muhammad and James informed me… feeling tight from running freezer.”
Ms Jaworski stated she agreed with the decision for Mr Toufiq to go home at 12.00 pm (four hours earlier than scheduled) and encouraged him to rest. She stated that she watched the CCTV footage of Mr Toufiq running the freezer and confirmed that the man in the footage was Mr Toufiq.

Incident Report and correspondence

In an incident report dated 31 August 2020, it was noted that an incident had occurred at 8.00 am on 31 August 2020 and had been reported at 10.28 am by Mr Toufiq at the Newcastle store. The injury was reported to have happened in the freezer and summarised as follows:
“While running freezer load, staff member reported having a pain in the lower back while bending and running freezer load.”
Under “detailed incident description” the following was noted:
“Staff member was running freezer load. While near the frozen meal section, the [sic) bent down to pick up and place stock. During this movement he felt pain in his lower, middle back. He said he had felt no pain before his shift, only after running half his freezer load. He only felt pain while bending and twisting to run load. Staff member said he was okay to finish pallet and take out back before heading to registers. He also informed he was ok to continue his shift unless pain got worse or began to feel uncomfortable.”
In a Suitable Duties Plan by the respondent dated 7 September 2020, it was noted that Mr Toufiq’s medical certificate provided for normal hours. Various light duties were described on the form as well as medium and heavy duties. Under “medium duties” it was noted that workers had to exert 10 kg to 25 kg of force occasionally or 5 kg to 10 kg of force frequently or up to 5 kg of force constantly to move objects. In the list of medium duties, one duty described was “Running Load – Freezer” with the following noted: “Push / Pull < 10kg, lifting average < 2kg – max 10kg, arm use, grip, walk, twist, bend, stand.” This duty was not agreed to be suitable for Mr Toufiq at that time.
In a letter dated 11 September 2020 from the respondent to Mr Toufiq, it was noted that Aldi Self Insurance had calculated his pre-injury average weekly earnings (PIAWE) at $724.75 per week. The payment during the first entitlement period was calculated at $688.51.
In a letter dated 28 September 2020 from the respondent to Mr Toufiq, a work capacity decision was made effective 28 September 2020. The following formula was to be applied to Mr Toufiq’s claim when determining his wage benefit:
“PIAWE = $724.75 x 0.95 = $688.51 - $528.29 earnings 25 hours per week with Aldi = $160.22 gross maximum make up pay you can receive under your claim benefits while on suitable duties.”

Surveillance Report

In a surveillance report dated 17 March 2021, Mr Craig Annabel of Virtual Intelligence, noted that a period of surveillance had been conducted on Mr Toufiq in an endeavour to expose video footage of him engaging in activities. The report noted that a period of observation had been conducted over six days and Mr Toufiq had been observed on Friday 19 February 2021, 26 February 2021, and 5 March 2021. Mr Annabel reported that on 19 February 2021 Mr Toufiq was briefly observed when he walked uphill to the local shopping centre and was videoed running towards a bus stop when the bus arrived. Mr Annabel estimated that Mr Toufiq had covered approximately 300 m on foot to the bus stop. Mr Toufiq was then observed attempting to operate an Opal card machine at Hamilton train station and then boarding a train destined for Central station in Sydney. On 26 February 2021 Mr Toufiq was seen walking home in the afternoon, uphill from a nearby shopping centre. Mr Annabel noted that the shopping centre was at least 400 m, half of which was up a steep hill from his home, and he appeared to “motion freely and easily”. The final period of surveillance when Mr Toufiq was observed was on 5 March 2021 when Mr Annabel could see the claimant lying down on the bed in his home and bending his right leg up to his back as he scratched the sole of his foot “without any apparent strain, pain or disability detected”.
There were various photographs attached to this report. However, it was from those limited photographs not [possible in my view to conclude that Mr Toufiq had expressed any apparent pain, discomfort or restriction in relation to his movements. Indeed, in relation to the final period of footage on 5 March 2021, although Mr Annabel said that no apparent pain, discomfort or restriction was noted in his movements when he was observed lying in bed in his home, most of the photographs actually showed Mr Toufiq’s face angled away from the window and it was not possible to observe any facial expressions in that position.

Medical evidence

Medico‑legal reports

In a report dated 18 September 2020, Dr William Ma, Injury Management Consultant, noted he had reviewed the file and that on 17/9/20, Mr Toufiq was deemed as having no current work capacity from 17/9/20 to 1/10/20. Dr Ma considered that he medical reason for the downgrade from having capacity for suitable employment to no capacity for work was unclear. Dr Ma spoke by telephone to Dr Abbod, who confirmed that Mr Toufiq complained of localised back pain in the lumbar region.
Dr Ma wrote:
“He had been referred for a CT scan previously which showed no significant abnormality. Therefore, Dr Abbod believed he had a back strain and he would be fit for suitable duties.
However, Dr Abbod stated that at the last consultation, Mr Toufiq needed to come to see him with his brother. At that time Mr Toufiq was complaining of severe pain and he could not even get up from the chair in the consultation room.
Dr Abbod agreed that there is inconsistency in Mr Toufiq's presentation.
Mr Abbod has referred Mr Toufiq to have an MRI scan and he should have an appointment today, 23/9/20.
Dr Abbod will review Mr Toufiq again with the MRI scan, and if the MRI scan shows no significant abnormality, then he will recommend for Mr Toufiq to return to work, to do at least some suitable duties.”

Dr Ma was of the view that based on all the information, Mr Toufiq could have mechanical low back pain, especially as the CT scan showed no significant abnormality. Dr Ma considered that Mr Toufiq should be advised to keep active and believed that he would at least have some capacity to do restricted duties if he could avoid heavy lifting and repetitive bending, and if he is allowed to change posture regularly. Dr Ma recommended Mr Toufiq to be further assessed after the MRI scan to confirm that there is no serious pathology. Dr Ma expected Mr Toufiq to be able to return to suitable duties and, after adequate treatment, including physiotherapy and exercise-based treatment, he would be able to return to pre-injury duties.

In a report dated 19 October 2020, Dr Vijay Panjratan, consultant orthopaedic surgeon, noted that Mr Toufiq had been employed by the respondent for the past 14 months as a shop assistant but had not worked since 31 August 2020. Under “history of injury”, Dr Panjratan wrote:
“On the day of the injury, he was filling up the freezer. While working in the freezer section, the hooks on the shelf gave way, and the shelf fell down with all its contents, and some of it fell on his legs as well. He had to pick up everything and put it back. This caused back pain. The boxes were heavy. When he started to develop pain, he stopped doing that and notified his manager about the back pain. He then stopped doing that kind of work and went on the till. An incident report was made. The pain became worse and he could not even sit comfortably on the chair …”
Dr Panjratan noted Mr Toufiq saw his GP, Dr Abbod, a few days later and was sent for imaging, was prescribed analgesics and commenced physiotherapy. He noted Dr William Ma carried out a file review on 18 September 2020 and considered that Mr Toufiq had capacity for some type of employment from 7 September 2020 to 21 September 2020. Dr Panjratan reported that Mr Toufiq was later certified totally unfit as he could not manage work at all and Dr Abbod was to review Mr Toufiq after an MRI scan.
Under “past history”, Dr Panjratan noted that this was the first time Mr Toufiq had a back problem. He noted that Mr Toufiq was complaining of constant lower back pain.
On examination Dr Panjratan noted that all movements were severely restricted, and he could barely bend forwards and reach the upper part of his thighs and could not bend to the side. Dr Panjratan recorded that there was pain was in the back of the left leg at the back of the thigh to the upper posterior leg. He reported that Mr Toufiq was not in a state to lie down and in a seated position could not extend the right leg completely or the left leg. Dr Panjratan noted that sensation was similar on both sides, and knee and ankle jerks were present, equal and symmetrical.
Dr Panjratan reviewed the CT scan report dated 3 September 2020 and the MRI scan report dated 29 September 2020. He expressed the opinion that Mr Toufiq’s pain and disability were totally out of proportion to any back patient he had ever seen. He noted that Mr Toufiq seemed breathless, could not sit and stand comfortably, and was totally unfit. He made a diagnosis of mechanical back pain and stated that employment was a substantial contributing factor to the alleged condition. Dr Panjratan did not consider that an injury or similar injury would have occurred any way at the same time or stage of Mr Toufiq’s life if he had been at work or had not worked in that employment as there had been a specific incident at work which caused the back pain.
Dr Panjratan noted that Mr Toufiq was still suffering from a work‑related injury. He considered that there had been an overreaction to the injury. He noted that Mr Toufiq had been referred to commence exercise physiology, which was reasonable and necessary. He also recommended a psychological review as the pain was out of proportion to such an injury. Under “work capacity”, Dr Panjratan stated that Mr Toufiq had no current work capacity and considered that the prognosis was pessimistic.
In a supplementary report dated 9 November 2020, Dr Panjratan noted that the respondent had advised that there was no incident of a shelf breaking and he had been asked to advise whether, if there was not a frank incident, employment would still be the main contributing factor to Mr Toufiq’s current symptoms and incapacity. Dr Panjratan wrote:
“You have pointed out that at the time of the mechanism of injury and in view of the CCTV footage, there was no incident of a shelf breaking, and you have now asked my advice, based on my medical opinion, if there was not a frank injury, would employment still be the main contributing factor for Mr Toufiq’s current symptoms and incapacity.
You have pointed out that I advised Mr Toufiq’s back injury developed when the shelf broke and the contents fell over and Mr Toufiq had to put them back again. Based on the information now provided, and the CCTV footage showed no incident of a shelf breaking, I have to advise you, based on my medical opinion, that if there was not a frank incident, employment would not be the main contributing factor for Mr Toufiq’s current symptoms and incapacity.”
Dr Panjratan was also asked when he would expect Mr Toufiq to return to suitable duties and pre‑injury duties and responded that based on his examination and Mr Toufiq’s reaction to the injury, which demonstrated significant abnormal illness behaviour, he was unable to estimate when Mr Toufiq would be able to get back to suitable duties. Dr Panjratan was of the view that it was unlikely Mr Toufiq would ever get back to pre‑injury duties given the way he was behaving on the day of assessment.
In a report dated 7 December 2020, Dr Tim Anderson, Occupational Physician, noted that Mr Toufiq complained of low back pain with radiation which varied but usually went down the left leg. Under history, Dr Anderson noted that Mr Toufiq related that on 31 August 2020 he was replenishing the display freezers which involved bringing out boxes of frozen goods which were on a manually operated pallet jack. These boxes came directly from the freezer room and each box weighed somewhere around 12kg to 15kg. Mr Toufiq said that he would then unload these into the display freezer cabinets. Dr Anderson recorded that as Mr Toufiq was doing this, he experienced pain in his lower back. Mr Toufiq reported the situation to the store manager and was changed to working on the till, where he was seated, but still experienced soreness in his lower back.
On examination, Dr Anderson noted that pain was located in a large area in the lower lumbar spine radiating out to each side. There was excessive tenderness throughout. The spinal curvatures were normal. There was no scoliosis or muscle spasm. Dr Anderson noted that Mr Toufiq was quite unable to flex forward and the associated McRae-Wright movement remained at 0 cm. Dr Anderson commented that this was extraordinarily stiff and suggested an excessive response. Mr Toufiq was unable to extend backwards and the movements of lateral flexion and rotation to each side were absolutely minimal. In the lower limbs, Dr Anderson noted that Mr Toufiq walked with a very slow, measured gait, could stand on his heels and toes together but could not walk on them and squatting was completely impossible. Due to Mr Toufiq’s size and morphology, Dr Anderson found that it was not possible to accurately measure the leg lengths but the thighs and calves had the same circumferences bilaterally and there was normal range of movement of the hips, knees and ankles although this caused further irritation of his lower back.
Dr Anderson noted that sensation to pinprick was slightly reduced over the medial side of both ankles and over the lateral side of the left ankle. He considered that this tended to suggest involvement of the L4 nerve root bilaterally and the S1 nerve root on the left side. Reflexes were present and equivalent at the knees (L4) and at the ankles (S1). Power of the extensor hallucis longus (LS) was equivalent. In exploring the reduced sensation to pinprick, there was also quite a large area of both thighs where there was reduced sensation as well. This area tended to suggest involvement of L5 and S 1.
Dr Anderson noted that the CT scan report dated 3 September 2020 commenced with the comment "There are bilateral pars defects" but the report did not indicate where these were located and this comment was not further developed in the description of any of the lumbar articulations. Dr Anderson noted that the report indicates that there is no discogenic pathology.
Dr Anderson made a diagnosis of some form of lower back pathology and suspected it was a musculo-ligamentous strain. He commented that the detailed neurological component of this assessment suggested that there may be at least some irritation bilaterally at L4 and on the left side at S1 but this was not confirmed by the reports of the radiological investigations. Dr Anderson stated that there was also some confusion at least with the CT scan where a pars defect was initially described but was not fully identified. Dr Anderson was of the view that whatever else was going on, Mr Toufiq's response to this situation seemed quite excessive.
Dr Anderson stated that Mr Toufiq's condition seemed to be due to his occupation at Aldi in late August 2020 and at this stage he could find no other explanation for Mr Toufiq’s condition. Dr Anderson noted that prognosis would depend on how effectively Mr Toufiq pursued a remedial programme which should be under an exercise physiologist and include an aquatic component.
Dr Anderson conclude that Mr Toufiq was not fit to return to any occupation at all.
Dr Anderson noted that in the file there was an alternative history of a shelf collapsing and goods cascading down around Mr Toufiq but that history did not feature at all in his assessment. He commented that the history Mr Toufiq described of bending and lifting boxes weighing 12 kg -15 kg could easily result is such low back dysfunction. Dr Anderson wrote:
“In this instance, the history which came across was that Mr Toufiq brought out frozen boxes of foodstuff and these were being unloaded into the display food cabinets. These boxes weigh 12kg to 15kg and that while he was lifting these, he hurt his lower back. That seems quite plausible and many quite severe back conditions can occur with this type of activity and also with lifting even lighter than that.

The CCTV footage leaves a very great deal to be desired. This is only 33 seconds and shows a relatively murky figure as the main focus of attention, not doing really very much of anything. There is no identification (at all) of the date or time that this footage was taken and there is also no identification (at all) as to who the focus of attention is in the middle of the video. It could be Mr Toufiq although there is no convincing evidence that it is.”
In a supplementary report dated 7 February 2021 which was requested by the respondent, Dr Anderson noted further CCTV footage had been made available but the quality of the footage was “abysmal” and each footage lasted less than half a minute. Dr Anderson noted that Mr Toufiq had been identified in the footage and was not seen to be bending and it looked as though he was replenishing some of the displays.
Dr Anderson respondent to the following question as follows:
“Noting the statements and timecards provided by Aldi to confirm the CCTV footage, is in fact the worker completing the freezer task he alleges caused the back symptoms. Can you please confirm that this mechanism would cause Mr Toufiq to have suffered a musculoligamentous strain of his lumbar spine?

3.      The short answer to this is that we really do not know. As I have already mentioned, we only see some very limited footage of some of the supposed activities of Mr Toufiq. In the CCTV footage I would willingly acknowledge that he is not seen to be bending.
4.      Nevertheless, this does not obviate the possibility that during his shift on other occasions he was bending. Also, I would raise the issue as to who actually loaded the pallet jack that he brought out with the boxes of produce. If it is Mr Toufiq, then he is lifting and shifting boxes thought to be somewhere between 12kg and 15kg to load the pallet jack, literally from the floor upwards. Under these circumstances, he almost certainly would be bending and there is a possibility that he could be twisting as well. Therefore, unless and until this issue is further addressed, it will be very difficult to proceed further.

5.      I described that with all of the available evidence which existed at the time that I saw him, I suspected that he had developed a ‘musculo-ligamentous strain’ although I was unable to identify the extent of this . This is described further in Paragraph 31 in my original report. I have also raised the issue as to whether there was a pars inter-articularis defect. I had enthusiastically recommended that all of the available radiological investigations should be seen by an independent Radiologist and reviewed to ascertain this issue. The inference of this is that if Mr Toufiq does have a pars inter-articularis defect, this would be seen as an underlying condition which could easily predispose to low back dysfunction. Therefore, until this is further sorted out, we still do not have a full diagnosis.”
Dr Anderson was asked whether "abnormal illness behaviour" as described by Dr Panjratan was the cause for Mr Toufiq’s ongoing incapacity? Dr Anderson responded:
“7. With the greatest of respect, I think it would be extremely rash to go down this track and state that Mr Toufiq's condition is all due to "abnormal illness behaviour". I would acknowledge, however that there were certain issues when saw Mr Toufiq that would reasonably be classified in this category. This starts with my comments in Paragraph 2 and continues in Paragraph 32 with his excessive response. In my answer to Question 11 in 11 b, this continues. Nevertheless, I doubt if this is anything like the full answer to his current circumstances.”

Records and reports of treating doctors and health professionals

In a report of a CT scan of the lumbar spine dated 4 September 2020, Dr Ebrahimi, radiologist, noted a clinical history of lower back pain radiating to the buttock. He reported that there were bilateral pars defects, alignment was preserved and there were multiple depression seen predominantly along the superior endplates of the lumbar vertebra in keeping with Schmorl’s nodes. He commented that there was no acute disc herniation or neural impingement seen at any of the visualised levels.
In an MRI report of the lumbar spine dated 29 September 2020, Dr Janke, radiologist, noted a clinical history of acute low back pain post‑injury three weeks ago with pain radiating to the left buttock and no neurology. Under “conclusion” he wrote:
“Degenerated L1/2 and L3/4 discs. No evidence of neural compromise.”
In a report dated 9 November 2020, Dr Abbod, general practitioner, noted that he had seen Mr Toufiq on 2 September 2020, and he had “acute low back pain radiating to the buttocks - heavy lifting at work”. He noted that there were radicular symptoms if sitting for a long time, but no loss of sensation and no weakness described.
On examination Dr Abbod reported there was localised low back tenderness with some pain in the lower back on straight leg raising but normal sensation. He made a diagnosis of mechanical localised low back pain. He recommended analgesics, physiotherapy, exercise physiologist, review by an orthopaedic specialist, and stated he was in the process of making an appointment with a neurosurgeon for a second opinion. He considered the prognosis was good. Dr Abbod wrote:
“His capacity to work has been affected since the date of the injury and will not be affected in the future based on the CT/MRI scans that showed no significant abnormality.”
Dr Abbod stated he agreed with Dr Ma’s report but did not agree to one question noting that Mr Toufiq consistently showed that his lower back pain had not changed or improved to date despite all the treatment given.
In a treating practitioner questionnaire from the respondent dated 10 May 2021, Dr Abbod noted that symptoms included disabling lower back pain radiating to the left leg. He noted under “impact of activity”: “Limited physical activities including sitting, standing and walking.” Under “progress” he noted: “Low back pain has shown some kind of improvement following multiple sessions of physio/exercise physio”. Current symptoms were recorded as intermittent low back pain with specific activities. Under “limitations of level of function he wrote: “Bending/lifting heavy objects/twisting.”
Dr Abbod made a diagnosis of: “Recovering from low back injury.” He noted that the current status of the condition was improving. In terms of current functional capacity and symptoms he wrote: “Intermittent low back pain on bending/heavy lifting/twisting. He is able to perform other work duties.” Dr Abbod considered there was a risk of aggravation if Mr Toufiq performed heavy lifting and bending and there should be a restriction on heavy lifting and bending for three months. He commented that Mr Toufiq stated he was able to perform light and medium duties at work. At the beginning of the form after “capacity”, Dr Abbod wrote: “Limited 20-25 hours a week.”
In a report dated 29 January 2021, Dr Mitchell Hansen, neurosurgeon and spine surgeon, noted he had reviewed the applicant who reported developing back pain and leg pain when he was picking up a box at work on 30 August 2020. He noted that the pain was really much the same as it was then as now, and pain was relieved when he lies down and aggravated when he stands. Dr Hansen noted that the applicant took non‑steroidal anti‑inflammatories and Panadeine Forte for the pain and that exercise physiology had improved pain. He noted that Mr Toufiq had not worked since that time.
On examination Dr Hansen found a decreased range of movement in his lumbar spine because of pain which was significant. He noted the MRI scan demonstrated fluid in his joints but no significant compression that needed surgical intervention. He recommended referral to a pain physician, Dr Volschenk. He also recommended exercise physiology to help with a return to work.
In an Allied Health Recovery Request Form dated 20 October 2020, Dr Abbod noted that current signs and symptoms included “back painful always, cannot lean back, sittings most comfortable position”. Dr Abbod described Mr Toufiq as having no current work capacity.
In the clinical notes of Dr Abbod, the following details were included:
(a)    In an entry dated 10 January 2019, Dr Abbod noted: “Thoracic back pain … slipped over a week ago. O/E … no neurology/no bony tenderness/muscle tenderness.” Dr Abbod prescribed analgesics for pain and noted Mr Toufiq should return if further concerned.
(b)    In an entry dated 2 September 2020, Dr Abbod noted:
“Low back pain radiating to buttock … acute low back pain radiating to buttocks. Heavy lifting at work/Aldi. Right radicular symptoms if sitting for long time. R > L. No loss of sensation, no weakness described, no change in bowel or urinary habits. No saddle anaesthesia.
O/E: Lower back tenderness, some pain in lower back on lrt (sic) straight leg raise, normal sensation.”
After “actions” Dr Abbod noted an imaging request for a CT scan of lumbar spine had been printed, a letter written to Hunter Physiotherapy with a referral, Naproxen 500mg tablets had been prescribed three times daily, and a medical certificate had been issued.
(c)    In an entry dated 7 September 2020 Dr Abbod noted that there was: “Ongoing low back pain, walking/sitting difficulty due to pain. Seen by physio – in progress.” Dr Abbod noted that there was no acute disc herniation or neural impingement seen at any of the visualised levels in the CT scan. Dr Abbod had spoken to the Aldi manager and agreed for WC with limited work capacity.
(d)    In an entry dated 17 September 2020, Dr Abbod noted that there was left low back pain radiating to the buttock. He noted that there had been a WC conference and wrote:
“Ongoing disabling lower back pain radiating to ‘lt’ buttock since injury at work/Aldi. He has been off work since the injury on 31 August 20. Walking/sitting/standing/sleeping difficulty due to pain. Saw physio twice – in progress.”
Dr Abbod noted there were radicular symptoms if sitting for a long time, no loss of sensation, no weakness described. On examination there was guarding of the left lumbar “parasp”, increasing tenderness to the “lt” buttock, limited bending movement to touch the toes due to pain. Dr Abbod noted he discussed at length with Mr Toufiq the possibility of being back to work in limited capacity in the next two weeks, but Mr Toufiq declined this. Dr Abbod referred Mr Toufiq for an MRI of the lumbar spine and prescribed Panadeine Forte.
(e)    In an entry dated 21 September 2020, Dr Abbod noted that there was left low back pain radiating to the buttock. He wrote: “Ongoing localised LT lower back pain.” He noted he was awaiting the MRI lumbar spine report.
(f)    In an entry dated 25 September 2020, Dr Abbod noted that there was low back pain. He issued a prescription for Panadeine Forte and provided a medical certificate for Centrelink.
(g)    In an entry dated 25 September 2020, Dr Abbod noted that had been a message from Mrs Bonser and Dr Ma from QBE wished to speak to him. He noted that the reason for the consultation was low back pain and ongoing localised “lt” lower back pain. He noted that Mr Toufiq had attended the MRI appointment but was unable to lie flat on the machine due to low back pain and had rebooked for the following week.
(h)    In an entry dated 30 September 2020, Dr Abbod noted that there was ongoing low back pain. He noted that physio was helping and that an MRI had been done yesterday but no report was yet available.
(i)    In an entry dated 1 October 2020, Dr Abbod noted that he had a conference with Mr Toufiq and Ms Tan, the case manager. He noted that issues included ongoing disabling lower back pain radiating to the “lt” buttock since the injury at work, and walking/sitting/standing/sleeping difficulty due to pain. He noted Mr Toufiq had been seen by a physiotherapist but there was a lack of progress. He reported the MRI showed degenerated L1/2 and L2/3 discs, but no evidence of neural compromise. He reported that Ms Tan would organise exercise physiology and orthopaedic review.
(j)    In an entry dated 15 October 2020, Dr Abbod noted that Mr Toufiq had ongoing disabling lower back pain radiating to the “lt” buttock since the injury at work, and had been off work since 31 August 2020. He noted he had seen the orthopaedic specialist, but no report was available.
(k)    In an entry dated 20 October 2020, Ms Emily Harrison, exercise physiologist, under “signs and symptoms” noted that the back was painful, Mr Toufiq could not lean back, sitting was most comfortable, and the pain in the back felt like needles. She noted that he worked at Aldi 20 hours a week or more than that pre‑injury decarting, stacking shelves, lots of lifting, night‑time cleaning and working the till during the day. Ms Harrison noted Mr Toufiq had not worked since the injury. Factors impacting progress were detailed as a delay in the MRI results, broken English “makes it hard” and physio had not helped.
(l)    In an entry dated 30 October 2020 Dr Abbod reported Mr Toufiq stated his low back pain was still problematic and he needed assistance to shower, get to the toilet and help sit, and get in and out of bed. Mr Toufiq said he still needed someone to hold onto when walking every time he attended the clinic.
(m)     In an entry dated 5 November 2020, Dr Abbod noted that Mr Toufiq still had ongoing localised low back pain and required another opinion from an orthopaedic specialist or neurosurgeon.
(n)    In an entry dated 9 November 2020, Dr Abbod noted that there had been a WC conference with Ms Tan and Mr Toufiq and the issue involved ongoing unexplained lower back pain radiating to the “lt” buttock since the injury at work on 31 August 2020. He noted he was awaiting an appointment with a neurosurgeon.
(o)    In an entry dated 18 November 2020, Dr Abbod noted there had been another WC conference with Mr Toufiq and with Ms Tan. He wrote: “sl Improving lower back pain. He has been off work since injury on 31/8/20.” He noted Mr Toufiq had been seen by an exercise physiologist and was waiting an appointment with a neurosurgeon.
(p)    In an entry dated 30 November 2020, Dr Abbod reported that there was “sl[sic] improving lower back pain.”
(q)    In an entry dated 4 December 2020, Dr Abbod noted a medical certificate had been issued and a letter written concerning the Centrelink certificate.
(r)    In an entry dated 24 December 2020, Dr Abbod noted: “Improving lower back pain.” He noted the exercise physiologist had been helping.
(s)    In an entry dated 20 January 2021, Dr Abbod noted that: “Low back pain improving.”
(t)    In an entry dated 1 February 2021, Dr Abbod note that there was ongoing low back pain and Mr Toufiq had seen the neurosurgeon, but no report was available yet.
(u)    In an entry dated 22 February 2021, Dr Abbod noted: “Low back pain SL improving. Doing EP exercises. Awaiting report from Dr Hansen.”
(v)    In an entry dated 7 April 2021, Dr Abbod noted that the low back pain was improving and “Happy to get back working at Aldi with limited duties / as he is going through financial difficulties.”
(w)   In an entry dated 22 April 2021, Dr Abbod noted: “Low back pain improving. Happy to get back to working at Aldi with limited duties – as he is going through financial difficulties”.
(x)    In an entry dated 6 May 2021, Dr Abbod noted Mr Toufiq had attended because of coughing and a sore throat and fever.
(y)    In an entry dated 10 May 2021, Dr Abbod noted that he filled in the forms for work fitness – Aldi post low back injury at work.
(z)    In an entry dated 24 May 2021, Dr Abbod noted that there was low back pain radiating to the buttock. He wrote: “Ongoing intermittent low back pain on walking/sitting.”
(aa)    In an entry dated 11 June 2021, Dr Abbod noted he had issued a medical certificate and wrote:
“Mr Muhammad Toufiq has been recovering from low back injury at work. I think he is currently capable of getting back to work performing light to medium duties for the next 3 months. He will be aiming for full duties work afterwards.”
(bb)    In an entry dated 29 July 2021, Dr Abbod noted that Mr Toufiq was willing to get back to work and suggested he talk to the case manager. He wrote:
“He has been recovering from low back injury at work. I think he is currently capable of getting back to work performing light to medium duties. He would be aiming for full duties afterwards.”

In a WorkCover NSW – Certificate of Capacity dated 30 October 2020, Dr Abbod certified Mr Toufiq as having no current work capacity for any employment from 30 October 2020 to 30 November 2020. He noted that the injury was related to work, there being heavy lifting at work, and stated there were no pre‑existing factors which could be relevant to the condition.
In a WorkCover NSW – Certificate of Capacity dated 30 November 2020, Dr Abbod certified the applicant as having no current work capacity for any employment from 30 November 2020 to 24 December 2020.
In a WorkCover NSW – Certificate of Capacity dated 24 December 2020, Dr Abbod certified the applicant as having no current work capacity for any employment from 24 December 2020 to 30 January 2021.
In a WorkCover NSW – Certificate of Capacity dated 1 February 2021, Dr Abbod certified the applicant as having no current work capacity for any employment from 1 February 2021 to 15 February 2021.
In a medical certificate dated 22 April 2021, Dr Abbod wrote:
“Mr Muhammad Toufiq had low back injury at work last year. He states that his lower back pain has been improving and is able to do light duties work from 26/04/2021.”
In a medical certificate dated 11 June 2021, Dr Abbod wrote:
“Mr Muhammad Toufiq has been recovering from low back injury at work. I think he is currently capable of getting back to work performing light to medium duties for the next 3 months. He will be aiming for full duties work afterwards.”

Discussion
Did Mr Toufiq suffer a personal injury that arose out of or in the course of his employment?

The first issue to determine is whether Mr Toufiq suffered a personal injury that arose out of or in the course of his employment with the respondent.
Section 4 of the 1987 Act as amended by the Workers Compensation Legislation Amendment Act 2012 defines injury as follows:
“Injury-
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, 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.”
The onus is on Mr Toufiq to establish that he suffered an injury arising out of or in the course of employment with the respondent.
Mr Toufiq gave evidence in his statement dated 7 June 2021 that on 31 August 2020 he was working on the “freezer load” and had bent down to pick up one of the boxes of goods to lift the box onto the top of the chest fridge/freezer, when he experienced immediate onset of pain in his lumbar spine. Mr Toufiq continued work for a short period and then reported the injury and was moved to work on the till where he could be seated.
Mr Toufiq said that the majority of the frozen goods were packaged in boxes weighing approximately 10 kg to 15 kg and were wheeled into the store on pallets using an electric or manual pulling device.
A Notification of Injury report form dated 31 August 2020, recorded an incident at 8.00 am on 31 August 2020 which was reported at 10.28 am by Mr Toufiq at the Newcastle store. The “detailed incident description” section of the form was as follows:
“Staff member was running freezer load. While near the frozen meal section, the [sic] bent down to pick up and place stock. During this movement he felt pain in his lower, middle back. He said he had felt no pain before his shift, only after running half his freezer load. He only felt pain while bending and twisting to run load. Staff member said he was okay to finish pallet and take out back before heading to registers. He also informed he was ok to continue his shift unless pain got worse or began to feel uncomfortable.”
Mr Plowman and Ms Jaworski both confirmed that Mr Toufiq was running the freezer load and had reported that his back was not feeling “too well” and asked to be moved to the registers. Mr Plowman stated that after completing the incident report, Mr Toufiq informed him that he was still sore even though he was on the registers. Ms Jaworski said that at about 11.30 am Mr Toufiq and Mr Plowman entered the office to cash Mr Toufiq’s till so that Mr Toufiq could go home early.
Mr Toufiq provided a history of his low back injury to various doctors. The first and most contemporaneous account was provided to his GP, Dr Abbod, who noted on 2 September 2020 that Mr Toufiq had acute low back pain radiating to buttocks and “heavy lifting at work/Aldi”.
Dr Panjratan on 19 October 2020, recorded a history of the hooks on the shelf giving way, and the shelf falling down with all its contents, and some falling on Mr Toufiq’s legs as well. Dr Panjratan noted that Mr Toufiq had to pick up everything and put it back and this caused back pain. Dr Panjratan went on to note that when he started to develop pain, Mt Toufiq stopped doing that work and went on the till and notified his manager about the back pain. Dr Panjratan reported that an incident report was made.
Mr Touflq, in his statement dated 7 June 2021, did not comment on the history that Dr Panjratan had recorded, but said that prior to the incident when he bent down to lift the box the shelving inside the fridge/freezer collapsed, causing goods to fall down onto goods within the fridge, requiring me to bend down inside of the unit and re-organise the display.
On 7 December 2020, Dr Anderson noted that Mr Toufiq gave a history that on 31 August 2020 of replenishing the display freezers which involved bringing out boxes of frozen goods weighing somewhere around 12 kg to 15 kg from the freezer room on a manually operated pallet jack. Dr Anderson recorded that as Mr Toufiq was unloading the boxes into display freezer cabinets, he experienced pain in his lower back. Mr Toufiq said that he reported the situation to the store manager and was changed to working on the till, where he was seated, but still experienced soreness in his lower back.
Dr Anderson noted that in the file there was an alternative history of a shelf collapsing and goods cascading down around Mr Toufiq but that history did not feature at all in his assessment. He commented that the history Mr Toufiq described of bending and lifting boxes weighing 12 kg -15 kg could easily result is such low back dysfunction
On 29 January 2021, Dr Hansen noted he had reviewed Mr Toufiq who reported developing back pain and leg pain when he was picking up a box at work on 30 August 2020.
The respondent filed five short files of CCTV footage, three of which were 37 seconds in length and two shorter. Counsel for the respondent made no submissions in respect of this footage.
Mr Toufiq stated that he was aware of closed‑circuit television footage in the possession of the respondent which displayed him restocking a freezer at work. He stated that the footage he had seen did not display him for the entirety of the shift he worked that day and as far as he could recall, this was after he had bent down to lift the box on top of the fridge/freezer, which is approximately 1100 mm high.
I am satisfied that the CCTV footage did not show the entire period that was worked by Mr Toufiq on the freezer run on the morning of 31 August 2021. Indeed, the CCTV footage showed less than five minutes of the shift. In these circumstances, I have not relied on this footage in determining the issues in dispute.
I am satisfied on balance that Mr Toufiq sustained an injury to his lumbar spine as described in the the Notification of Injury Report dated 31 August 2020, that is, it was the activity bending down to pick up and place stock that resulted in the injury to his lumbar spine. This was not only the most contemporaneous account but broadly consistent with the accounts given in Mr Toufiq’s statement dated 7 June 2021 and the histories provided to Dr Abbod, Dr Anderson and Dr Hansen.
I accept that Dr Panjratan recorded a different mechanism of injury, that is, the hooks on the shelf giving way, and the shelf falling down with all its contents, and some falling on Mr Toufiq’s legs as well. Dr Panjratan noted that Mr Toufiq had to pick up everything and put it back and this caused back pain. Mr Toufiq addressed this in his statement when he said that prior to the actual incident the shelving inside the fridge/freezer had collapsed, causing goods to fall down onto goods within the fridge, requiring him to bend down inside of the unit and re-organise the display.
The respondent argued that this together with an earlier reference to a complaint of pain in the thoracic spine in 2019, his presentation at medical examinations and the surveillance report were all matters going to Mr Toufiq’s credit.
The differences in the history taken by Dr Panjratan and the history taken by other doctors is not, in my view, an issue that materially impacts on Mr Toufiq’s credit. English is a second language for Mr Toufiq, who was born in Pakistan and has been in Australia for about 13 years. It was more likely that not that Mr Toufiq became confused when giving his history or did not give a complete history to Dr Panjratan. Mr Toufiq, in his statement, said that when the respondent said that he did not hurt his back at work, he thought it might have had something to do with his broken English when he was speaking to Dr Panjratan. I also accept that language difficulties may have led to confusion in relation to the history taken by Dr Panjratan.
The respondent submitted that Mr Toufiq had stated that he had not injured his back prior to 31 August 2020. I accept that Mr Toufiq said that he never sustained any injury to his back before this work injury. However, I was not persuaded that the reference to pain in the thoracic spine on 10 January 2019 by Dr Abbod was significant. This is a different area of the back and Dr Abbod noted on examination: “… no neurology/no bony tenderness/muscle tenderness.” Mr Toufiq did not attend Dr Abbod again in relation to his thoracic spine. There was no record of any complaint is respect of the lumbar spine in Dr Abbod’s clinical notes before 2 September 2020.
In relation to Mr Toufiq’s presentation at medical examinations, I accept that he presented as quite dysfunctional when he saw Dr Panjratan on 6 October 2020 and then when he saw Dr Anderson on 7 December 2020. Although Dr Panjratan referred to significant abnormal illness behaviour, he also made a diagnosis of mechanical back pain. Dr Anderson made a diagnosis of musculo-ligamentous strain with possible irritation bilaterally at L4 and on the left side at L1. Dr Anderson commented response to the situation seemed excessive and the situation was complicated by the way Mr Toufiq had reacted to it. Dr Anderson noted that Dr Panjratan described abnormal illness behaviour which was “not an unreasonable description”. However, in his supplementary report dated 7 February 2021, Dr Anderson when asked if abnormal illness behaviour was the cause of ongoing incapacity thought that it would be extremely rash to go down that track and state that Mr Toufiq's condition is all due to "abnormal illness behaviour". Dr Anderson did acknowledge that there were certain issues when he saw Mr Toufiq that would reasonably be classified in this category. Dr Anderson also expressed the opinion that further review of the radiological investigations was required before a full diagnosis could be given.
I accept that Mr Toufiq’s presentation to Dr Panjratan and Dr Anderson was dysfunctional and the doctors considered he had elements of abnormal illness behaviour. However, no reference to abnormal illness behaviour was made by Dr Abbod, who saw Mr Toufiq frequently during this period, nor by Dr Hansen in January 2021.
I am not persuaded that Mr Toufiq’s presentation to Dr Panjratan and Dr Anderson raises issues about his credit as a witness. It is more likely, in my view, that Mr Toufiq, had difficulty coping with his pain at that stage and his reactions although excessive were genuine and caused by the injury on 31 August 2020.
In relation to the surveillance report, the surveillance was carried out in February and March 2021. By this stage in 2021, it is important to note that Dr Abbod had commented on improvement in Mr Toufiq’s condition. I do not consider that there was any activity described in the surveillance report that was inconsistent with Mr Toufiq’s presentation to doctors in February and March 2021. Dr Hansen saw Mr Toufiq on 29 January 2021 and noted that exercise physiology had improved his pain. Dr Hansen suggested further exercise physiology to help Mr Toufiq return to work. Dr Abbod, in his clinical notes dated 20 January 2021, reported that the low back pain was improving. On 22 February 2021 Dr Abbod noted “low back pain sl improvement” and on 22 March 2021 Dr Abbod noted “low back pain improving”. There appeared to be a series of improvements in Mr Toufiq’s low back pain following the examinations by Dr Panjratan and Dr Anderson.
I am satisfied on balance that Mr Toufiq was working on the freezer run and bending to lift a box weighting 12-15 kg to place it on the top of the freezer chest when he sustained an injury to his lumbar spine. I accept the evidence given by Mr Toufiq in his statement in relation to the events on 31 August 2020. I am satisfied on balance the injury occurred as described by Mr Toufiq in his statement dated 7 June 2021 and the Notification of Injury Report dated 31 August 2020 that it was the activity bending down to pick up and place stock that resulted in the injury to his lumbar spine.
I find that Mt Toufiq sustained an injury to his lumbar spine on 31 August 2020 that arose out of and was in the course of his employment.

Substantial contributing factor

The next issue to be determined is whether the applicant’s employment was a substantial contributing factor to his injury to the lumbar spine, within s 9A of the 1987 Act.
In Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324, a Full Bench of the NSW Court of Appeal considered the provisions of s 9A of the 1987 Act. Mercer v ANZ Banking Group [2000] NSWCA 138 was not followed. Allsop P, Beazley and McColl JJA (Handley AJA dissenting) held that the phrase “substantial contributing factor” in s 9A involved a causative element and said:
“81. Causation is a fact-laden conclusion which the courts have been told must be based on common sense: March v Stramare (E & MH) Pty Limited [1991] HCA 12; 171 CLR 506; and Nunan. It is not possible and indeed would be incorrect, therefore, to lay down a principle which can be applied unbendingly to all cases. Nonetheless, we consider the following observations should be made.
82. First, and perhaps most importantly, the word ‘substantial’, must be given effect. It is a word of ordinary English meaning. It is a word of evaluative concept. The word substantial has been said to be not only susceptible of ambiguity, but also to be a word calculated to conceal a lack of precision. Which of the various possible shades of meaning the word bears is determined by the context: Ice TV Pty Limited v Nine Network Australia Pty Limited [2009] HCA14;83 ALJR 585 at [154] at 617 per Gummow, Hayne and Heydon JJ. Here, the concept and purpose of the introduction of s 9A was to remove the possibility of compensation for injury with only a ‘remote or tenuous connection with work’. This was the purpose of the amendment: see the Second Reading Speech at [34] above. We would endorse the separate comments of Meagher JA and Davies AJA in Dayton v Coles Supermarket. As Meagher JA said, something which is minor is not substantial, or, as Davies AJA said, ‘substantial’ as it appears in s 9A means ‘in a manner that is real and of substance’ and does not apply where, as a matter of practical reality, the contribution of the employment to the injury was of, or had, ‘little substance’. We agree with his Honour that it is not useful to search for or use other terms, such as ‘large’, or ‘weighty’, or by way of further example, other concepts such as ‘predominant’. We consider that to do so may carry the vice of introducing concepts with different nuances from the words used by the legislature and which would take the meaning of the word beyond that needed to fulfil the purpose of the provision in its legislative context. In this respect, we prefer the views of Davies AJA in Dayton to the views in the extempore judgment in Bulga, which did not refer to Dayton and to the views of Mason P in Mercer. The words of the statute should be adhered to: ‘a substantial contributing factor’. The ‘proper link’ in the legislative context was a causal connection expressed by the words ‘a substantial contributing factor’, meaning one that was real and of substance. Given the conflict in the existing authority (Mercer, Bulga and Dayton), we think it important to clarify this issue.”
Allsop P, Beazley JA and McColl JA (Handley AJA dissenting) held that in determining whether a worker’s employment was a substantial contributing factor the matters specified in s 9A(2) must be taken into account to the extent that they are relevant. Their Honours considered that s 9A(2)(b) directed attention to the nature of the work performed and the particular tasks of that work and not to what the employee was doing at the actual time of the injury.
Basten JA concurred with the decision of the majority, considering that the causal test imposed by s 9A was more stringent than that imposed by s 4. He commented that if the conduct out of which the injury arose occurred in the course of employment and was the effective cause of the injury, absent misconduct on the part of the employee, the only conclusion reasonably open is that the employment was a substantial contributing factor to the injury. Basten JA said:
“Given that s 9A imposes a limitation upon an entitlement arising under s 9(1), which provision picks up the term ‘injury’ as defined in s 4, the phrase ‘employment concerned’ should be understood as a reference to the ‘employment’ identified in s 4 out of which the injury arose or in the course of which the injury occurred.”
Considering the terms of section 9A(2) of the 1987 Act, I make the following observations and findings:
(a)    “the time and place of injury”: the injury occurred during Mr Toufiq’s work with the respondent. I am satisfied that the injury to the lumbar spine was referrable to his employment with the respondent. The contribution of the applicant’s employment with the respondent was real and of substance and there was both a temporal and causal connection between the onset of his symptoms in his low back and his work.
(b)    “the nature of the work performed and the particular tasks of that work”: I am satisfied on balance that Mr Toufiq was working on the freezer run and bending to lift a box weighting 12-15 kg to place it on the top of the freezer chest when he sustained an injury to his lumbar spine. I am satisfied on balance the injury occurred as described by Mr Toufiq in his statement dated 7 June 2021 and the Notification of Injury Report dated 31 August 2020. It was the activity bending down to pick up and place stock that resulted in the injury to his lumbar spine.
(c)    “the duration of the employment”: Mr Toufiq had been employed by the respondent since August 2019, however, the duration of employment is not a significant consideration in this matter.
(d)    “the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment”: the respondent did not really argue that the injury to the lumbar spine would have happened anyway at the same stage of Mr Toufiq’s life. In his first report dated 19 October 2020 when Dr Panjratan accepted that there had been a specific incident at work, Dr Panjratan considered that there would not have been an injury or similar injury about the same time or at the same stage in the worker’s life anyway, at about the same time or at the same stage of the worker's life, if Mr Toufiq had not been at work or had not worked in that employment. Dr Panjratan later added that it was unlikely that Mr Toufiq would have developed symptoms in the back but for the injury which aggravated pre-existing degenerative changes. Dr Anderson considered that the incident at work was the only reason for his low back condition and there was no history of any other activity or circumstances in which Mr Toufiq is likely to have hurt his lower back. I am satisfied on balance that there was no significant probability that the injury to the lumbar spine would have happened anyway at the same stage of Mr Toufiq’s life if he had not been engaged by the respondent and working on the freezer run on 31 August 2020.
(e)    “the worker’s state of health before the injury and the existence of any hereditary risks”: The worker commenced employment with the respondent in August 2019. Although he was overweight and there was some evidence of having a degenerative condition in the lumbar spine, he was asymptomatic at the time of injury. I am satisfied that it was the bending and lifting incident on 31 August 2020 that was the real cause of an injury to the lumbar spine.
(f)    “the worker’s lifestyle and his or her activities outside the workplace”: there are, in my view, no significant lifestyle matters relevant in this claim. There was no medical or other evidence that identified any significant lifestyle matter or activity relevant in this claim.

On the facts of this matter and on consideration of the relevant authorities cited, I find that the injury to Mr Toufiq arose out of and in the course of employment and that there was a causal relationship between the injury and the work that he was required to do, that is, there was a causal connection with his employment. I am satisfied that his employment was a substantial contributing factor within the meaning of s 9A of the 1987 Act.

Claim for weekly benefits

The parties reached an agreement in the conciliation on 7 September 2021 that the PIAWE was $724.75.
During the proceedings on 5 October 2021 Mr Toufiq amended his claim for weekly benefits as follows:
(a) first 13 weeks s 36 from 16 November 2020 to 1 December 2020 with ability to earn/current weekly earnings being $0;

(b) weeks 14 -130, s 37 from 2 December 2020 to 25 April 2021 with ability to earn/current weekly earnings being $0, and

(c) weeks 14 -130, s 37 from 26 April 2020 to date and continuing with ability to earn/current weekly earnings being $500.
Assessment of Mr Toufiq’s capacity for work since 16 November 2020 requires consideration as to whether he has “a current work capacity” or has “no current capacity” as defined by s 32A of the 1987 Act:
“current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment either in the worker’s pre-injury employment or in suitable employment”
Suitable employment’ is relevantly defined in s 32A of the 1987 Act:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(a) Having regard to:
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify and
(b) regardless of:
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place or residence.”
Section 33 provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.”
The assessment of whether there is a current work capacity or no current work capacity must be made before proceeding to do a determination under s 36 and s 37 of the 1987 Act (Deputy President Roche in Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar) at [49]). At [66]-[67] Deputy President Roche said:
“If there is a current work capacity, that is relevant to calculating ‘E’ (the amount to be taken into account as the worker’s earnings after the injury, where the worker is not employed), which is then used in the equations in ss 36(2) and 37(2) and (3). If there is no current work, one looks to s 36(1) or s 37(1), depending on whether the claim is in the first or second entitlement period.
Thus, the words ‘the amount the worker is able to earn in suitable employment’ in s 35 are not relevant to the preliminary question of whether a worker has a current work capacity. They are, however, relevant to determining the amount to be taken into account as the worker’s earnings after the injury where he or she is not employed. In assessing that amount, the reference to ‘the amount the worker is able to earn in suitable employment’ is a reference to the amount the worker is able to earn in suitable employment, as that term is defined in s 32A”.
Counsel for Mr Toufiq argued that Mr Toufiq was totally incapacitated for work until 26 April 2021 but from 26 April 2021 to date and continuing he was capable of earning about $500 a week in suitable employment.
The respondent submitted that there should be a finding that Mr Toufiq did not suffer any ongoing incapacity for work from early 2021 on.
Dr Abbod certified Mr Toufiq as having no current work capacity in the NSW WorkCover Certificates of Capacity issued on 30 October 2020, 30 November 2020, 24 December 2020 and 1 February 2021.
Dr Toufiq issued a number of other medical certificates. In various Centrelink Medical Certificates Dr Abbod certified Mr Toufiq as unfit for work from 14 December 2020 to 14 January 2021, from 22 February 2021 to 22 March 2021, from 22 March 2021 to 22 April 2021, from 22 April 2021 to 22 May 2021 and from 24 May 2021 to 24 August 2021. In a Medical Certificate dated 22 April 2021 Dr Toufiq certified Mr Toufiq as fit for light duties from 26 April 2021. In a medical certificate dated 11 June 2021, Dr Abbod considered that Mr Abbod was currently capable of getting back to work performing light to medium duties for the next three months and would aim for full duties work afterwards.
In a Treating Practitioner Questionnaire dated 10 May 2021, Dr Abbod considered that Mr Toufiq had a capacity of 20-25 hours a week and could perform light and medium duties at work with restrictions on heavy lifting and bending for three months.
Taking into account the opinions expressed by Dr Panjratan, Dr Anderson and Dr Abbod, I am satisfied that Mr Toufiq had no current work capacity from 16 November 2020 to 25 April 2021. The respondent submitted that Mr Toufiq did not suffer any ongoing incapacity for work from early 2021 on. However, there was no medical evidence which sufficiently supported that submission. I did not consider that the Surveillance Report, given the limited observations in the report, assisted in any way in determining what Mr Toufiq’s capacity for work might be in February and March 2021.
In terms of the claim for weekly benefits from 26 April 2021 to date and continuing, I accept that Mr Toufiq has current work capacity.
Mr Toufiq has stated that he was capable of earning $500 per week in suitable employment. Counsel for Mr Toufiq submitted that he could earn $ 422.60 working a 20 hour week, $464.86 working a 22 hour week and $528.25 per week working a 25 hour week. These calculations were based on an hourly rate of $21.13 per hour’ The hourly rate was based on the rate Mr Toufiq earned with the respondent.
The respondent submitted that there was no restriction on Mr Toufiq’s hours of work (as he worked part time before the injury on 31 August 2020 and the only restriction was in relation to light duties or light to medium duties. Counsel for the respondent submitted that Mr Toufiq could obtain employment as a service station attendant, check out operator, or service assistant at a store such as Bunnings and would be able to earn $625 per week earning $25 per hour and working 25 hours a week.
The only evidence I have as to hourly rates is that provided in the wage records and work capacity decision dated 28 September 2020. The wage capacity decision provided that Mr Toufiq could earn $528.29 working a 25 hour week or $21.13 per hour.
I accept that there is some inconsistency between some of the certificates issued by Dr Abbod and have placed no weight on the Centrelink Certificates which from 26 April 2021 onwards certified Mr Toufiq as having no capacity for work. I have relied on the Certificates and Questionnaire dated 10 May 2021 which certify Mr Toufiq as having current work capacity.
On balance I am satisfied that Mr Toufiq could work 25 hours a week from 26 April 2021 to date and that he could earn $21.13 in such employment. I find that Mr Toufiq is able to earn in suitable employment $528.25 per week from 26 April 2021 to date and continuing.

Entitlement to weekly benefits

It was agreed between the parties that Mr Toufiq’s PIAWE was $724.75.
On balance I am satisfied that Mr Toufiq had no work capacity from 16 November 2020 to 25 April 2021. Further, I am satisfied that Mr Toufiq was able to earn in suitable employment $528.25 per week from 26 April 2021 to date and continuing
Therefore, from 16 November 2020 to 1 December 2020 Mr Toufiq was entitled to receive payments pursuant to s 36(1) of the 1987 Act. From 2 December 2020 to 25 April 2021 Mr Toufiq was entitled to benefits pursuant to s 37(1) of the 1987Act and from 26 April 2021 to date and continuing Mr Toufiq is entitled to receive payments pursuant to s 37(3).
There will be an award of weekly payments of compensation to Mr Toufiq as folIows:
(a) $688.51 per week from 16 November 2020 to 1 December 2020 pursuant to s 36(1) of the 1987 Act;

(b) $579.80 per week from 2 December 2020 to 25 April 2021 pursuant to s37(1) of the 1987 Act, and

(c) $51.55 per week from 26 April 2021 to date and continuing pursuant to s 37(3) of the 1987 Act.

[2021] NSWPIC 417

18 October 2021