Vaimalu v Workforce Recruitment and Labour Services

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Vaimalu v Workforce Recruitment and Labour Services [2024] NSWPIC 482
APPLICANT:	Mosa Vaimalu
RESPONDENT:	Workforce Recruitment and Labour Services
MEMBER:	John Wynyard
DATE OF DECISION:	29 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation; liability accepted for right elbow and wrist injuries caused on 6 December 2018; liability denied for claim for injury to the right shoulder and lumbar spine; applicant claimed latter injuries occurred on 6 December 2018 in his original statement, which was primarily concerned with an unrelated altercation at his light duties employment; applicant subsequently gave a further, more considered statement which was supported by contemporaneous evidence as to the onset of the claimed injuries during the period the applicant was doing light duties; applicant's qualified expert had written a supportive report on the basis of the applicant's incorrect history and subsequently issued a further report when provided with the applicant's later statement; this further report corrected the history and found that the disputed injuries occurred whilst the applicant was doing light duties; whether applicant had satisfied his onus of proof; Held – the applicant suffered from pathology radiologically established in the right shoulder and a significant developmental pathology at L5/S1; award for the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. I remit this matter to the President for referral to a Medical Assessor for a whole person impairment assessment on the following bases: (a) Date of injury: 17 September 2020 (deemed). (b) Matters for assessment: right upper extremity (shoulder), and lumbar spine. (a) Date of injury: 6 December 2018. (b) Matters for assessment: right upper extremity (elbow, wrist). (c) Evidence (both referrals): Application to Resolve a Dispute and attached documents; Application to Admit Late Documents dated 26 June 2024 from the applicant; Reply and attached documents, and copy of these reasons.

STATEMENT OF REASONS

BACKGROUND

Mosa Waimalu the applicant brings an action against Workforce Recruitment and Labour Services, the respondent, for lump sum payment in relation to the right upper extremity and the lumbar spine.
Dispute notices were issued and the Application to Resolve a Dispute (ARD) was duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Did the applicant suffer injury to his lumbar spine and right shoulder as a result of an incident of 6 December 2018?
(b) Did the applicant suffer aggravation, exacerbation, acceleration or deterioration of a disease process in his lumbar spine and right shoulder caused by the nature of his work up to 17 September 2020?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was heard in person on 17 July 2024. The applicant was represented by
Mr Graham Barter of counsel, instructed by Mr Khristopher Narsimullu and Mr Eric D'Cruz. Ms Nicole Compton of counsel appeared for the respondent instructed by Ms Peta Tunnicliff. Ms Danielle Moore attended the hearing by telephone from Newcastle for the insurer. Also in attendance was Ms Travilla Pukuke, as a support person for the applicant.
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 Personal Injury Commission (Commission) and considered in making this determination:
(a)    ARD and attached documents;
(b)    Application to Admit Late Documents dated 26 June 2024 from the applicant, and
(c)    Reply and attached documents.

Oral evidence

No application was made in regard to oral evidence.

FINDINGS AND REASONS

Preliminary

The issues were agreed to be as outlined above. Ms Compton indicated that the claim for injury to the right elbow and wrist had been accepted, but liability regarding the right shoulder and lumbar spine had been declined. Moreover, Ms Compton indicated that the insurer had accepted the claims regarding the right elbow and wrist only on the basis that they had occurred on 6 December 2018, and were not injuries caused by a disease process. There was a conflict in the date of injury pleaded for the lump sum claim and the date of injury details.
As a consequence of the discussion I made the following order:
“I grant leave to the applicant, not opposed, to amend the “Permanent Impairment/Pain and Suffering” box in the ARD form to delete the date “6/12/18” and substitute therefor “17 September 2020 (deemed).”

EVIDENCE

STATEMENTS

Mr Vaimalu made four statements dated 23 October 2020, 20 November 2023,
11 March 2024 and 25 March 2024.

23 October 2020

Mr Vaimalu’s description of the accident was:
“4. I was injured at work on 6 December 2018, sustaining injuries to my right arm, back and neck.”[1]
[1] ARD page 3.

12. The date “6 December 2018” had been typed over what appeared to be a liquid paper whiteout. Mr Vaimalu said that he had been receiving weekly payments of compensation, having returned around Christmas 2018 on light duties, after two weeks off work. He returned to the same worksite at Wetherill Park. However in March 2019 the respondent sent him to work light duties at the Salvation Army Charity Shop in St Mary’s. Mr Vaimalu said:

“I worked there for 5 hours a day, 5 days a week. My main responsibilities included sorting out donations, assembling and repairing donated bed frames/rails, and check donated electronics to see which parts still work.”

A large portion of this statement was concerned with an altercation that then occurred at that workplace. It culminated in a meeting on 18 September 2020 in which Mr Vaimalu had been accused of “being threatening and intimidating towards the staff” and of making a “fraudulent” workers compensation claim.[2] The cause of the altercation appeared to concern a television set which Mr Vaimalu had been accused of stealing, and his emphatic denial in response.

20 November 2023
[2] ARD page 6 [40].

Mr Vaimalu addressed the consultation he had had with Dr Courtenay on
1 September 2023. Mr Vaimalu advised that he had been kept waiting for almost 30 minutes. Mr Vaimalu said:[3]
“This does not make any sense to me when he was clearly aware of the appointment.”
[3] ARD page 3 at [3].
Mr Vaimalu described in some detail the symptoms he was currently suffering in his back, right shoulder, hips and elbow joints.
Mr Vaimalu disputed Dr Courtenay’s “accusation and exaggeration of my injury not being real”. He said:[4]
“… After notifying my injuries I was then put on light duties, which included tidying around the yard, removing nails from fence palings with a grinder repetitively. Water blasting stacks of pellets, re-spraying paint on pallets and sorting corroded timber into boats pallets and re-stacking pallets repetitively.”
[4] ARD page 9? Numbering indistinct.

Mr Vaimalu challenged Dr Courtenay’s assumptions as to the nature of the work he had been doing prior to his injury. Mr Vaimalu explained that pallets could have a significant variation on their weight depending on whether they were wet or dry or whether the timber was treated. He said:
“This can be verified by Loscam and Loscam workers, not Workforce International recruitment agency, as these are two different companies and Workforce International would not have any clue about what I was doing.”

25 March 2024

Mr Vaimalu repeated much of his first statement, but in much more detail. He described his duties prior to his injury as “extremely heavy and repetitive work involving substantial amounts of bending and lifting with forceful and repetitive use of my right arm and hand.” He described the Breaker machine’s functions, and gave the date of his injury whilst operating the Breaker machine as being “10 December 2018.” He said:[5]
“5. Shortly after I commenced working at Lascom, I noted the onset of right arm pain. This was primarily in my elbow but was also accompanied with pain in my right shoulder, forearm, wrist, and hand and also in my low back. As a result of this pain, in about September 2018, I attended on my family doctor, Dr Teh.
6. When I first saw Dr Teh on 28th September 2018 for my right arm, the doctor advised me that I should not make a claim for workers compensation benefits, but rather continue working in the hope that the pain would resolve. As I wished to keep the job with WRL I followed this advice.
7. As I continued to work, the pain in my right arm became increasingly worse. On about 10 December 2018, while I was working at Lascom, I was performing duties on a machine known to me as the Breaker machine. This particular machine required that I use my right arm vigorously, and as a result the pain in my right arm that I as experiencing became unbearable. As a result, on that day I reported the injury to WRL and subsequently made a claim for workers compensation benefits.”
[5] ARD page 11 [7].
Mr Vaimalu gave a detailed description of the duties he was required to do when on light duties at Wetherill Park after his two weeks off. There is no need to consider them at this point, apart from to observe that they appeared arduous on their face.
Mr Vaimalu also gave a detailed description of the light duties he was required to perform when he was then placed with the Salvation Army shop at St Marys. These duties too seemed arduous, involving much bending and lifting, about which Mr Vaimalu complained to his case manager and the Salvation Army shop manager.

11 March 2024

As noted, an Application to Admit Late Documents was lodged dated 26 June 2024. It contained a signed copy of the above statement of 25 March 2024, but was dated, for some reason, 11 March 2024.

Travilla Pupuke

Ms Pupuke gave a short statement dated 15 November 2023. Relevantly, she said:[6]
“5. I Travilla Pupuke have spent a lot of time with Moses Vaimalu prior to his injuries he was a hard-working, healthy, fit individual who has always been the provider for his family. Since, 2018 when his injuries occurred. They have impacted everyday life immensely. Repetitively work causes inflammation in his injuries, he has aches and pains and continues to cause him chronic pain. He did not have these injuries prior to 2018.”
[6] ARD page 14.

Clinical notes

Dr Teh was Mr Vaimalu’s treating general practitioner (GP) and nominated treating doctor throughout the relevant period. Indeed, he had been Mr Vaimalu’s GP since
21 September 2015. Prior to his employment with the respondent, Mr Vaimalu was noted to have complained to Dr Teh on 5 September 2017 of a tender lumbo-sacral back.
As to his treatment of the claimed injuries, the clinical notes demonstrated that Mr Vaimalu was a regular patient over the period who sought treatment for his symptoms at least once a month and quite often more.
Dr Teh’s notes consistently showed Mr Vaimalu’s complaints and investigations as follows:[7]
“right elbow only, from 28.9.18 to 1.2.19
right elbow + Anxiety, from 1.2.19 to 29.3.19
right elbow + Anxiety + hand/wrist, from 1.3.19
condition improving at 24.5.19
right wrist and elbow at Salvation Army store at St Marys from 12.6.19
right hand, wrist and right elbow improving from 19.8.19
onset right shoulder symptoms from 17.9.19
Ultrasound of right shoulder reveals subacromial bursitis and impingement on 29.9.19. Mr Vaimalu was recorded as being “very angry, upset and abusive that he was put on normal hours.”
[7] Dr Teh’s clinical notes commence at ARD page 181.
Dr Teh recorded:[8]
“…and he is unable to perform duties more than 5 hours a day as he still has pain in the right elbow and right [wrist], on top of right shoulder impingement now.
right hand, right elbow and right shoulder from 11.10.19
onset left leg pain and numbness from 20.4.20
CT scan shows 7mm anterior spondylolisthesis on 23.4.20
MRI shoulder shows SLAP tear, subscapularis tendinopathy and small superior paralabral cyst on 4.5.20
Complaints continue about right arm, right shoulder, back and anxiety from 27.5.20 (Salvation Army store shut down due to Covid. Noted back at work on 12.8.20)
CT guided left L5 perineural steroid injection on 21.8.20”
[8] ARD page 192.
Final entry 1.3.21 stating:
“Medical certificate stating that [Mr Vaimalu] suffers from right rotator cuff tear, subacromial bursitis, left sciatica, and chronic pain f right wrist and right elbow with tendinitis from previous work injury. He is unable to return to his previous normal duties, and needs assistance with rehab for modified suitable duties.”
In particular, on 12 June 2019 Dr Teh noted that Mr Vaimalu’s started work the week before at the Salvation Army, Dr Teh said:
“…[working] as a sorter, rather repetitive for 6 hours. Find it a bit hard.”
On 30 September 2019 Dr Teh reported:
“…[Mr Vaimalu] said that he is sorting things and hanging clothes and coats at work in the Salvation army. He wish to try driving forklift and truck.” (As written).
On 6 April 2020, whilst complaining about his right shoulder, elbow and hand pain,
Mr Vaimalu also complained of pain in a more personal area, which resulted in a scrotal/testicular ultrasound been taken on 20 April 2020. The entry for that day reported that Mr Vaimalu became angry when Dr Teh told him that the recent pain and superficial “thrombophebitis” (presumably thrombophlebitis) was not related to his work injury on
20 April 2020.
Dr Teh followed up the complaint about the back by arranging a CT scan, the results of which he entered in the next entry of 23 April 2020. At this consultation Dr Teh noted that Mr Vaimalu was “much quieter today and non-argumentative and willing to listen to me.” An entry dated 3 August 2020 disagreed with the opinion of Dr Andrew Leaver, who had assessed Mr Vaimulu for the respondent. Dr Leaver had recommended referral to a pain clinic, finding that further physiotherapy would not be of any more benefit. Dr Teh said:
“My feeling is that treatment of his right shoulder and back pain is more important than seeing a pain specialist.”
A further entry on 1 March 2021 stated:
“Medical certificate stating that [Mr Vaimalu] suffers from right rotator cuff tear. Left sciatica, and chronic pain to the right wrist and right elbow with tendinitis from previous work injury….”

Dr James Bodel

Dr Bodel supplied three reports as a medio-legal specialist for Mr Vaimalu.
On 13 March 2021, he took a history that Mr Vaimalu had been employed by the respondent, which is a labour hire company, which had sent him to work for Loscam, in Wetherill Park. Loscam was a pallet repairing facility where wooden pallets were repaired and maintained.
Dr Bodel advised that Mr Vaimalu began work at 5:30am and finished at 2:30pm, having commenced work with the agency on 9 July 2018. Dr Bodel took the following history:[9]
“This gentleman suffered an injury at work on 06 December 2018.
This came on during the course of the day’s work when he developed pain in the neck, back and pain involving the whole of the right arm, swelling in the shoulder and the right wrist and hand.
He went to see his GP, his main complaint was the wrist and hand. He had laser treatment but no medication and he continued to work.
The pain steadily deteriorated and spread up to the right shoulder and also to the neck and back.
……
This gentleman continued to deteriorate over time. He did return to work on reduced hours and duties but was struggling and he was eventually put off work.
He found work at the Salvation Army Charity Hospital in St Marys, five hours a day, five days a week and he did that up until September 2020.”
[9] ARD pages 66 – 67.
Dr Bodel summarised the history and gave his diagnosis. He said:[10]
“The history of the injury while at work, working as a pallet repairer is described above. He has tried to return to light duty work for the Salvation Army Charity Hospital in St Marys, five hours a day, five days a week and he did that up until September 2020.
….
The diagnosis here is a rotator cuff injury to the region of the right shoulder, a probable triangular fibrocartilage injury to the region of the right wrist and epicondylitis in the region of the right elbow. He also has an aggravated spondylolisthesis at the lumbosacral junction.”
[10] ARD page 69.
On 15 May 2023 Mr Vaimalu’s solicitors wrote again to Dr Bodel who replied on the same day.[11] Dr Bodel said:
“I read your letter of instruction and the preamble. I note the “Assumptions” listed (a) through (h).”
[11] ARD page 73.
The following question and answer were indicated:[12]
“1. As a result of the nature and conditions of our client’s employment with WRLS between 1 April 2018 and 17 September 2020 cause injury to our client’s right upper extremity (shoulder, elbow, wrist and hand) and lumbar spine? [sic].
This claimant’s injury occurred as a consequence of the nature and conditions of his work over the period stated above and employment is a substantial contributing factor to that event.
2. If so, was the employment the main contributing factor to that injury?
Employment was the main contributing factor, as well as the substantial contributing factor, and is the main contributing factor because of aggravation, acceleration, exacerbation and deterioration of underlying disease process present in these areas.”
[12] ARD page 73-74.
On 11 March 2024 Dr Bodel supplied a third report addressed to Mr Vaimalu’s solicitors. He noted that he had assessed Mr Vaimalu previously on 19 March 2021 and by letter “on 15 July 2021 and 15 May 2023.” Dr Bodel acknowledged receipt of Mr Vaimalu’s supplementary statement dated 11 March 2024 and noted that it confirmed that Mr Vaimalu commenced work in 2018, that he was sent to Loscam and that he first complained of pains to Dr Teh in September 2018.
Dr Bodel also noted that on 28 September 2018 Dr Teh advised Mr Vaimalu not to make a workers compensation claim regarding his right arm. Dr Bodel noted that the pain was getting worse and on 10 December 2018 Mr Vaimalu’s supplementary statement indicated that Mr Vaimalu was working on a “breaker machine”, which required him to use his arm vigorously as a result of which the pain became unbearable and he reported the injury.
Again relying on the supplementary statement, Dr Bodel noted that Mr Vaimalu was supposed to return to work on light duties but the work he was given, which was using a handheld grinder to grind off protruding nails, was not much lighter than the work he had previously been doing.
Dr Bodel spoke of “the paling float” which apparently was a process for stacking palings on the pallet and then moving them on the pallet jack, the pile weighing about 50kg.
Dr Bodel noted that Mr Vailmalu’s statement also indicated that he had to use a high pressure water jet to clean the pallets which was strenuous and involved a lot of bending of the lower back.
Dr Bodel then said:[13]
“Later, the agency moved him from Loscam to a place at the Salvation Army shop where he did restricted duties. Unfortunately, there was also some heavy lifting of large items and boxes of clothing, TVs and other white goods which were being sold from the shop and he again reported this to the rehabilitation provider at Rehab Recovery. The work at the Salvation Army shop made the right arm and shoulder worse. The back pain also became worse when doing the light duties as Loscam.”
[13] ARD page 76.
Dr Bodel noted the argument with Dr Teh in April 2020 and that Mr Vaimalu stopped work in September 2020 “because of the injuries and the Signed statement from March 2024 indicates that ‘I have been unable to get work and have not worked for income since that time’.”

Dr Bodel said:[14]
“I acknowledge the additional background information that you have provided and I assume and I acknowledge that I proceed with answering your questions on the assumption that these additional Statements are based on the supplementary Statement from your client being true. They are Items A through to Items N from page 1 through to halfway down page 3. I acquired the same understanding of those matters from the signed Statement.”
[14] ARD page 76.
In answer to a series of questions, Dr Bodel stated that Mr Vaimalu had suffered a personal injury “that has arisen as a consequence of the nature and conditions of his work during the course of his employment.”
Dr Bodel stated that Mr Vaimalu had not contracted a disease process but that he had aggravated, accelerated, exacerbated or deteriorated a disease process. He said:[15]
“There has been evidence of aggravation, acceleration, exacerbation and deterioration of underlying disease process, including degenerative disc disease and rotator cuff pathology in the right shoulder and work is the main contributing factor by way of aggravation, acceleration, exacerbation and deterioration to those disease processes.”
[15] ARD page 77.
Dr Bodel thought “employment was a primary contributing factor”. Dr Bodel said:[16]
“I am satisfied that employment with workforce recruitment was the primary contributing factor to the injury as claimed. This has led to the ongoing symptoms and the ongoing pathology which leads to injury and impairment in this circumstance. There has been a further temporary aggravation by the work that he did at the Salvation Army shop, but that was also work through Workforce Recruitment.”

Dr Warren Kuo
[16] ARD page 77.

On 17 June 2020 Dr Warren Kuo, orthopaedic surgeon, wrote to Dr Teh who had referred Mr Vaimalu to him for an opinion. He said:[17]
“CLINICAL IMPRESSION: Right rotator cuff, superior labral and AC joint injury.
HISTORY:
Thank you for referring Mosa, who is a 36 year old, right hand dominant, previously employed pallet repairer who presents with right shoulder pain. Mosa states that he first noticed symptoms around mid 2018 due to the physical nature of his work, using nail gun and crow bars during the course of his work. He tried to keep it quiet as he was quite keen to maintain his work but by November 2018 his symptoms were significant enough to warrant being reported officially. There has been ongoing pain superiorly and laterally worse with overhead activities which is a 9-10/10/ there is pain at night and he feels the shoulder is stiffer and weaker than normal. Functionally, he is still working at the Salvation Army with a 7.5kgs lifting limit. Doing a push up is not possible. Treatment to date consisted of physiotherapy mainly for the elbow but just the past couple of weeks shoulder exercise has commenced. He had also trialled Voltaren.”
[17] ARD page 159.
Dr Kuo stated that there was an MRI scan of the right shoulder that confirmed AC joint disease. There was also a slap tear and subscapularis tendinopathy. Dr Kuo noted that
Mr Vaimalu was complaining of right shoulder pain which he thought was due to a combination of rotator cuff AC joint and labral tears.

Dr Tony Antoun

Dr Antoun appears to be a GP from whom the respondent obtained a report dated
14 August 2020. Dr Antoun did not interview the applicant, but supplied a file report based on the documentation then available, and his conversations with Dr Teh.
The reason for Dr Antoun’s involvement was as a result of the “downgrade certificate and complaints of new secondary injuries.” The history recorded by Dr Antoun was:
“…. [Mr Vaimalu] was sent to a host employer where he describes the work as repetitive. There was no frank incident. He was approximately six months on-site when he started experiencing pain into his right elbow. Imaging was performed an
[18] Reply page 19.
Mr Vaimalu was diagnosed with right lateral epicondylitis and right medial epicondylitis …” [18]
Dr Antoun’s impression included the following:
“Dr Teh has confirmed Mr Vaimalu has only recently presented with the right shoulder, neck and back pain, which is over 18 months post initial presentation and is unsure how this is possible or related to the initial injury.
There is no medical evidence to support the initial mechanism of injury has resulted in a SLAP tear 18 months later or neck and back pain.
The initial mechanism of injury is inconsistent with the claim of his neck, shoulder and back pain which presents over 18 months later.”
Dr Antoun noted after speaking to Dr Teh, that “Mr Vaimalu’s restrictions are related to his new symptom of neck, shoulder and back pathology.” He thought that Mr Vaimalu’s epicondylitis “appears to have resolved…”

Dr Anthony Smith

Dr Smith, orthopaedic surgeon, was retained by the respondent for an expert opinion. He reported on 2 October 2020. He took a history that Mr Vaimalu was doing pallet work through a labour hire company and had been working there for about 12 months prior to the injury. Dr Smith took a history that Mr Vaimalu developed “soreness and swelling on the right side, including the right arm generally in the thoracic area down to the waist on the right…” Dr Smith noted that there was no particular precipitating accident or injury and that after consulting his GP and being treated whilst off work for about a month, Mr Vaimalu went back to the same job on light duties where he was given spray painting work. He was required to “grind nails and remove nails and water spray the pallets.”
Dr Smith noted that Mr Vaimalu was relocated to the Salvation Army store at St Marys “sorting out donations of goods and clothes” for 25 hours per week. His symptoms did not improve and at the time of Dr Smith’s report, Mr Vaimalu was still working at the Salvation Army store.
Dr Smith noted that there had been a recent development of pain in the left hip, buttock, calf, right shoulder and right arm running down to the hand. Dr Smith noted the report from a Dr Leaver, physiotherapist, which suggested that Mr Vaimalu was “chronically using his right upper limb” and that Mr Vaimalu had developed pain in the right upper limb and back while working as a pallet repairer. Dr Smith noted the further history of treatment
Mr Vaimalu had sought, including with Dr Kuo and another GP, Dr Tang. He noted the MRI dated 29 April 2020 which he said demonstrated AC joint arthritis and a normal bursa.
Dr Smith noted the CAT scan of the lower back which showed bilateral pars defects at L5 and the anteriolisthesis of L5 and S1. He also noted chronic degenerative disease at L5 – S1 with a moderate posterior bulge compressing the thecal sac, but without canal stenosis. Dr Smith noted that there was marked outlet stenosis and facet joint arthritis, the latter at every level.
Dr Smith thought that Mr Vaimalu “has a very histrionic presentation” and Dr Smith could not find anything objectively wrong with him. Dr Smith thought that he was “manufacturing physical signs… and is much better that he makes out he is.” Dr Smith noted “work hypertrophy of the right upper limb muscles in excess of the musculature of his left upper limb.” He noted weak shoulder elevation on the right and weak neck rotation to the right, which Dr Smith thought had been caused by the 11^th cranial nerve, which could not have been affected by Mr Vaimalu’s work as a pallet repairer, or any other occupation.
Dr Smith thought that the clinical examination demonstrated inconsistency, and that there was no injury to the right shoulder, as SLAP lesions were commonly seen in asymptomatic people. Relevantly, he noted that spinal degenerative disease was a universal problem “affecting all men and women.” It was entirely age-related and could become symptomatic for no reason.
Dr Smith accepted that Mr Vaimalu had lateral epicondylitis, but stated that employment did not cause that condition. He accepted that employment aggravated and exacerbated the underlying degenerative pathology, which Dr Smith said pre-dated the onset of symptoms by “months, if not years.” Dr Smith said that there was no relationship between
Mr Vaimalu’s symptoms on the right side of his body generally, his right shoulder, wrist, left leg or low back symptoms and his employment. Dr Smith thought that if the applicant developed lateral epicondylitis at some particular time on 12 December 2018, it would have resolved of its own accord by the following morning at the very latest. Dr Smith said:[19]
“… The problem is that people with repetitive occupations they keep on having repetitive exacerbations.”
[19] Reply page 29.
Dr Smith concluded by observing that Mr Vaimalu was “manufacturing symptoms and physical signs…” and that the lesion “discovered incidentally” in Mr Vaimalu’s right shoulder would not be causing any symptoms.
In a supplementary report of 23 October 2020, Dr Smith was asked to consider an ultrasound dated December 2018 regarding the right elbow. Whilst acknowledging that the ultrasound found pathology, Dr Smith said the radiologist was “basically diagnosing tennis elbow.”
Dr Smith repeated that Mr Vaimalu was histrionic and that he embellished his condition and manufactured physical signs. Dr Smith agreed that there was an underlying lateral epicondylitis “which has never been treated properly” and which was a consequence of degenerative disease. He thought Mr Vaimalu might develop similar changes on the left side. Dr Smith repeated that any aggravation on 6 December 2018 would have resolved after a few hours, or indeed “in a matter of minutes or seconds.”[20]

Associate Professor (Dr) Brett Courtenay
[20] Reply page 76.

Dr Courtenay, orthopaedic surgeon, supplied four reports to the respondent. On
11 February 2022 he took a detailed history of the work Mr Vaimalu was required to do as a pallet repairer and subsequently at the Salvation Army store. Dr Courtenay noted the investigations and conducted an examination. In his opinion he noted that Mr Vaimalu had “really very well-formed muscles. There is thickening callosities on his hands and highly toned muscles.” On examination Mr Vaimalu had been wearing a brace on his forearm which Dr Courtenay doubted that Mr Vaimalu had been wearing on a regular basis, as
Mr Vaimalu had told him. Dr Courtenay thought there was no correlation between
[21] Reply page 39-40.
Mr Vaimalu’s work and the SLAP lesion in his shoulder as there was no history of work causing it. Dr Courtenay also thought that the low back, with its degenerative changes and developmental problems, was also not related, particularly as there had been no specific injury.[21]
Dr Courtenay said that he could see no evidence of a problem in the right shoulder or lumbar spine that had arisen out of the course of employment on 6 December 2018, or any subsequent injury. He supported the proposition that incidents leading up to and on
6 December 2018 in the workplace caused injury to the right elbow and that the issues in the right wrist were more likely than not related to the epicondylitis and a secondary effects to the extensor muscles in the right arm. He did not believe that employment remained a cause of any of Mr Vaimalu’s ongoing problems.
Dr Courtenay confirmed his opinion on 23 September 2023, noting that it was impossible in the examination to get consistency. He doubted whether Mr Vaimalu had been wearing his right arm brace, as there were no sweat marks on the brace and no tan lines caused by the brace. He noted that Mr Vaimalu was “very angry about his injuries” and Dr Courtenay thought that Mr Vaimalu’s gross loss of movement in the right arm was real. Dr Courtenay said:[22]
“With regard to all of these injuries, | have again reviewed his original work and what he did. He stated that he was using up to 350 pallets a day, that would need to be confirmed with his employer. He stated they are up to 50kg, however that's incorrect. The standard pallet weighs 18kg. It is designed to carry 1000kg. He also was not doing repetitive work. He was doing work with a nail gun and for a man of his build and size a nail gun is a relatively simple machine to use as all the power is done by either hydraulics or battery, or compressed air. He also described using crowbars as well.”
[22] Reply page 47.
In a later report of 8 February 2024, Dr Courtenay explained his reasons, after being made aware of Mr Vaimalu’s complaints about his comments. Dr Courtenay said:[23]
“…. I agree with him that a wooden palette can weigh between 15kgs and 18kgs and if they come in wet they will weigh a bit more. To suggest however that they always weighed at least 20kgs is incorrect and secondly to suggest that when they are wet they can weigh up to 50kgs is totally unrealistic. That implies that a hardwood wooden palette has retained 30 litres of water. The most that a hardwood palette, even if it could absorb is no more than 1 or 2kgs. A personal hobby is wood working and wood turning, which I have been doing for more than 30 years and water content, particularly of hardwood is extremely important in that hobby.”
[23] Reply page 51.
Dr Courtenay noted the CT scans commented on by Dr Bodel, saying:[24]
“….Dr Bodel comments on the CT scans of the lumbar spine of April 2020 that I reviewed. This describes a 9mm anterior spondylolisthesis of L5/S1 and it is related to bilateral L5 pars bony defects. This is a developmental pre-existing condition. 9mms is a significant degree of anterior spondylolisthesis and it is a significant cause of low back pain particularly in younger patients. It is not work related but it can be flared up by work but the pre-existing (sic-condition) is related to a developmental situation….”
[24] Reply page 53.
In a further report of 21 May 2024, Dr Courtenay considered the spondylolisthesis further:[25]
“With regards to his lumbar spine there is that developmental defect of a bilateral pars defect. There was also a history pre-injury from his GP of back pain and that would definitely have been flared when he was doing the work, particularly when he was leaning over and doing some of the lifting of the palings. However, I cannot see any evidence that there has been any progression of that condition, and it is my opinion that once he stopped doing that heavy work it should have settled and should have also settled with the physiotherapy. It should not have continued unabated for six years.”
[25] Reply page 56.
Dr Courtenay concluded by noting that Mr Vaimalu had shown some inconsistencies and significant exaggeration. Mr Vaimalu had been extremely angry at the last consultation and Dr Courtenay thought he had mental health issues, which had been the major issue – certainly in the recent past. Dr Courtenay also noted the SLAP lesion in the right shoulder, he said:[26]
“…There was no other evidence of any rotator cuff pathology and there was some bursitis, but other than that, the shoulder was actually in good condition.”

SUBMISSIONS
Mr Barter
[26] Reply page 58.

Mr Barter said that the claim was based on s 4(b)(ii) of the 1987 Act, that Mr Vaimalu had suffered an aggravation of a pre-existing condition, and that the substantial contributing factor needed to be to the aggravation of the condition, and not the condition itself.
It was necessary to establish that there was a pre-existing pathology in accordance with the ordinary rules of causation, and that the nature of the work on a commonsense approach, would be likely to aggravate that pathology. There needed to be some evidence from the claimant to that effect, and that there was medical evidence to support that proposition.
So far as the existence of the pre-existing pathology was concerned, Mr Barter referred to the evidence of Mr Vaimalu’s spondylolisthesis and rotator cuff pathology that was revealed in the investigations.
The connection between the nature of Mr Vaimalu’s work and the aggravation of that pre-existing pathology was primarily supplied by Dr Bodel, a close consideration being required to see that history coincided.
With regard to the claim of injury to the lumbar spine, Mr Barter referred to an entry in the clinical notes of Mr Vaimalu’s GP at the time, Dr Patrick Teh, who recorded a complaint of a sore back after lifting a trolley on 5 September 2017, which was prior to the commencement of employment with the respondent. That demonstrated that Mr Vaimalu’s pre-existing pathology was capable of being aggravated by his actions at a particular time.
Mr Barter noted that Dr Teh had been dealing mainly with Mr Vaimalu’s right upper extremity problems and did not consider any relation between Mr Vailmalu’s back symptoms and the nature of his work, in fact Dr Teh disputed such a connection, which was relied on in the s 78 notice.
Mr Barter submitted that I would prefer the evidence of Dr Bodel and that of the applicant, noting that the relationship between Mr Vaimalu and Dr Teh had deteriorated over that issue. There was a clear dispute as to Dr Teh’s view that employment had not rendered the back pathology to be symptomatic by the nature of his work both with the respondent and with the Salvation Army light duties.
Mr Barter referred to Mr Vaimalu’s supplementary statement dated 25 March 2024 wherein Mr Vaimalu asserted that he did complain to Dr Teh about his recurrent lower back pain on 23 April 2020. Nonetheless, Mr Barter submitted that the nature of the work Mr Vailamu was doing with both the respondent and the Salvation Army was sufficient to cause his lumbar pathology to become symptomatic. Mr Barter relied on the opinion of Dr Bodel in that regard.
It was significant, Mr Barter submitted, that notwithstanding the difference of opinion between Dr Teh and Mr Vaimalu about the back, Dr Teh had supported the connection between the nature of the work being done by Mr Vaimalu and the aggravation to the right shoulder, elbow and wrist. Mr Barter referred to Dr Teh’s clinical notes which showed that on 13 December 2019 complaints were made about pain whilst doing light duties with the Salvation Army, and that later entries showed complaints of pain in the right wrist, right forearm and right shoulder. Mr Barter noted that in his statement of 25 March 2024,
Mr Vaimalu had confirmed that the work he was doing at the Salvation Army had caused more injury to his right arm and shoulder, and also caused problems in his lower back.
Further support, Mr Barter said, could be found in the report of Dr Kuo dated 17 June 2020, which confirmed the presence of rotator cuff pathology, AC joint and labral tears and noted that the right shoulder pain had first been noticed in mid-2018. Combined with the statement from Mr Vaimalu of March 2024, this was further evidence that the nature of the work with both the respondent and the Salvation Army had aggravated that underlying pathology.
Thus, Mr Barter submitted, there was pathology within the lumbar spine, and within the right upper limb, including the shoulder, the elbow and the wrist. The evidence showed that all of those pathologies had been aggravated by the nature of the work Mr Vaimalu had been performing.

Ms Compton

Ms Compton submitted that Mr Vaimalu’s various accounts of the onset of his injuries were inconsistent. She referred to the fact that Mr Vaimalu was employed by a labour hire company and was required to do different work, which in a disease case meant that
Mr Vaimulu had to establish that his work had been the main contributing factor to his injury.
The high point of his case, Ms Compton submitted, was the report of Dr Bodel, on which no weight could be placed. This was because:
(a)    Dr Bodel’s opinion had been based on the history given by the applicant on
19 March 2021, and the assumptions put to him by his retaining solicitors, the latter having not been lodged;
(b)    his opinion did not meet the Makita v Sprowles test as to expert opinion, and
(c)    Dr Bodel had changed his opinion, and not explained why.
Ms Compton stated that whilst the claim for injury to the right wrist and the elbow had been conceded, they were only conceded as being frank injuries caused in 2018. There was no evidence that they had been caused by the nature and conditions of his employment, she maintained.

Ms Compton submitted that Mr Vaimalu’s history in his statement of 11 March 2024 was “completely different” to that provided contemporaneously to the medical practitioners. His account in his statement of 23 October 2020 was that he injured his right arm, back and neck on 6 December 2018. He did not suggest that he suffered any injury whilst doing light duties after Christmas 2018 and when he was sent to the Salvation Army in March of 2019, which was the history he suggested to Dr Bodel. The statement went into considerable detail about a television set, Ms Compton said, but there was no mention of any aggravation to Mr Vaimalu’s injuries.
Ms Compton then referred to Mr Vaimalu’s statement of 20 November 2023, which she noted was some years after the relevant events. Ms Compton submitted that caution should be taken in considering such a document, as it was created for the purpose of workers compensation proceedings. It was in this statement, Ms Compton submitted, that
Mr Vaimalu articulated for the first time the work he had done on light duties caused pain in his arm and lower back. Mr Vaimalu particularised for the first time in this statement the duties he was required to do whilst working for the Salvation Army, including bending, lifting and carrying heavy objects. Ms Compton said that those allegations were disputed.
Ms Compton compared this version of events with what was recorded contemporaneously. She referred firstly to the claim form, which referred to “right bilateral epicondylitis,” whilst using a “water blaster” doing repetitive duties as a pallet repairer.
Ms Compton then referred to the records of Dr Teh. The first entry regarding these events was dated 28 September 2018, and noted only complaints about the right elbow.
Ms Compton noted that Mr Vaimalu continued to consult Dr Teh about his right epicondylitis until December 2018 when complaints about the right wrist and hand were noted, by which time he was receiving compensation. The first record of any right shoulder complaint was made in an entry of 17 September 2019, Ms Compton said, noting that Dr Teh recorded the complaint as a Medicare consultation.
Ms Compton submitted that earlier in the year, in around March 2019, there was an unrelated issue to do with the pallet work Mr Vaimalu was doing. She referred to an entry of 1 February 2019 in which Dr Teh noted that Mr Vaimalu was suffering anxiety and stress from harassment at work. Ms Compton referred to the entry of 6 February 2019 in which a transfer to the Salvation Army stores was suggested by the injury management specialist from Allianz. Ms Compton submitted that it was not clear whether Mr Vaimalu went from doing the light duties pallet work to the Salvation Army, or not. Ms Compton noted entries relating to Mr Vaimalu’s stress and anxiety throughout February and suggested that he was not working at all. The first note that Mr Vaimalu was working at the Salvation Army appeared in an entry of 12 June 2019 that indicated he had started the week before.
Ms Compton noted the continuing complaints to Dr Teh when Mr Vaimalu was working at the Salvation Army store. She noted that up to 17 September 2019 the complaints concerned the wrist, the elbow and the shoulder. She noted an entry dated 19 August 2019 that although he was still complaining of pain in the right hand, wrist and elbow, Mr Vaimalu said he was getting better. On 17 September 2019 the first complaint appeared about Mr Vaimalu’s right shoulder. Ms Compton noted that whilst Dr Teh again recorded that
Mr Vaimalu’s pain in the right elbow and wrist was getting better, the entry reported that he “now” had pain and stiffness in the right shoulder, and that the entry had been recorded as a Medicare consultation.
Ms Compton referred to the clinical notes of Dr Teh that demonstrated there had been no complaint of lumbar back symptoms until April 2020.
Ms Compton submitted that the evidence was unsatisfactory in a number of ways. She submitted that there was not enough specificity in Mr Vaimalu’s statements as to where he was working and for what period. She noted that he was employed by a labour hire company that sent him to different work sites. She submitted that some of the entries in
Dr Teh's notes that referred to injuries at work did not specify the location or the nature of that work.
Ms Compton submitted that whilst the clinical notes after December 2018 showed continuing complaints about Mr Vaimalu’s wrist and elbow, those complaints were to be regarded as no more than evidence that the December 2018 injuries had not resolved. She resisted any implication that they were also evidence of aggravation by virtue of the work that Mr Vaimalu was doing on light duties.
Ms Compton referred to the reports by Dr James Bodel, orthopaedic surgeon. She noted that Dr Bodel had only been consulted by Mr Vaimalu on the one occasion at the time of the report of 19 March 2021. That report related Mr Vaimalu’s symptoms, which included the neck, back, the whole of the right arm, the right shoulder, the right wrist and right hand, to the injury of 6 December 2018. This opinion was not supported by the contemporaneous notes, Ms Compton said.
Ms Compton contrasted that opinion with Dr Bodel’s somewhat differing view on
15 May 2023, where he stated that the nature and conditions of Mr Vaimalu’s employment were the cause. Ms Compton noted that Dr Bodel had referred to a number of assumptions that Mr Vaimalu’s solicitors had sent in a letter of instructions also dated 15 May 2023, which had not been tendered. Dr Bodel's report was no more than an ipse dixit,
Ms Compton submitted, as it offended the rule in Makita v Sprowles, there being no facts or circumstances given on which Dr Bodel based his altered opinion.
Dr Kuo took a different history in his report of 17 June 2020, Ms Compton submitted. He took a history of the onset of right shoulder pain in mid 2018, which Mr Vaimalu tried to ignore until November 2018, when he reported them. This was a different history to that given elsewhere in the case, Ms Compton said.
She referred to the reports of physiotherapist Dr Lee, and psychologist Dr Greenaway whom Mr Vaimalu saw at different times. Ms Compton referred to what she described as the most contemporaneous document, which was a claim form, which only reported right elbow problems.
Ms Compton referred to the report of Dr Tony Antoun dated 14 August 2020, prepared for the respondent. Ms Compton stressed that Dr Antoun had been in touch with Dr Teh.
Ms Compton’s submissions in this regard are on record and I note that Mr Vaimalu was still working for the respondent doing light duties at the Salvation Army store in St Marys when Dr Antoun reported.
Ms Compton relied on the report of Dr Anthony Smith, orthopaedic surgeon, dated
2 October 2020, prepared for the respondent. She also referred to the four reports from Associate Professor Courtenay. Ms Compton went into considerable detail as to all five reports and submitted that they did not support Mr Vaimalu’s case and that they expressed doubts as to the reliability of Mr Vaimalu’s presentation. They, Ms Compton submitted, should be preferred to the compromised report of Dr Bodel.

Mr Barter in reply

Mr Barter submitted that the respondent was asking the Commission to draw inferences about the nature of the work being done at different times when it could easily have called evidence to confirm that nature. The fact that it did not mean, as I understood the submission, that the basis of the respondent’s denial was mere supposition and speculation.

DISCUSSION

The case advanced by Mr Vaimalu, as a result of the amendment to the pleadings made at the commencement of the hearing, is that the impairment to his right shoulder and lumbar spine have been caused by a disease process pursuant to s 4 (b)(ii) of the 1987 Act. Section 4 provides relevantly:
"‘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.”
Ms Compton argued that the acceptance by the insurer of liability for injury to the right elbow, and wrist had been made on the basis that the right lateral epicondylitis, mild medial epicondylitis and tenosynovitis of the right wrist had been caused on 6 December 2018. Indeed, the s 78 Notice of 11 September 2020 demonstrated that acceptance.[27]
[27] ARD page 20.
I note that the present claim is concerned only with impairment caused to the right shoulder and the lumbar spine, and that the amendment made by Mr Barter at the outset of the hearing related to that claim. Accordingly, the claim for impairment caused by the right lateral epicondylitis, mild medial epicondylitis and tenosynovitis of the right wrist will be referred on the agreed basis it was caused by injury on 6 December 2018.
The amendment made by Mr Barter at the outset of the proceedings arose because there was an inconsistency in the pleadings. The “Injury Details” box of the ARD pleaded that the injuries had occurred on a deemed date of 17 September 2020. However, the date of injury indicated in the “Permanent Impairment/Pain and Suffering” box indicated a date of injury of 6 December 2018.
There appeared to be some confusion about the accuracy of that date, as in Mr Vaimalu’s statement of 23 October 2020, a date had been given which was whited out by liquid paper as mentioned above, and the date of 6 December 2018 typed over the top. In his statement of 25 March 2024 (and 11 March 2024, being the signed copy that was sent to Dr Bodel)
[28] ARD page 182.
Mr Vaimalu gave 10 December 2018 as the date on which he injured his right elbow. He also said that he first complained to Dr Teh about his right elbow on 28 September 2018, whose entry for that date said “complains of pain in right elbow since early this year.”[28]
Ms Compton emphasised that there was no contemporaneous support for Mr Vaimalu’s assertion in his statement of 23 October 2020 that he had injured (relevantly) his right arm and back on 6 December 2018, and it must be accepted that Mr Vaimalu’s statement at that time was made with a lack of care. This concession was inherently a part of Mr Barter’s amendment, and indeed was contrary to the particulars pleaded in the “Injury Details” portion of the ARD, which made no such claim. This indicated that Mr Vaimalu’s claim was based on the nature and conditions of his employment - firstly between 9 July 2018 (when he commenced work for the respondent) and 6 December 2018, when he injured his right elbow and wrist, and secondly that the work for the Salvation Army Charity Shop St Marys caused further injury.
As Ms Compton observed, the statement of 23 October 2020 was mainly concerned with the altercation between Mr Vaimalu and the Salvation Army shop management, and the question of whether he had stolen a television. I have not traversed the detail of that altercation beyond noting that it concluded with allegations being made, which were refuted by Mr Vaimalu and no investigation followed his departure on 17 September 2020, or at least no such investigation was before me. I also noted that Mr Vaimalu was accused of fraud against the insurer. Mr Vaimalu also stated that there had been screenshots taken of him carrying the television, using his injured right arm. Although Mr Vaimalu downplayed the use of his arm as seen on the screenshot, it is nonetheless some evidence that the light duties he was doing required some lifting and carrying.
There was no dispute that Mr Vaimalu, in addition to the accepted injuries, has an underlying pathology in the lumbar spine of a spondylolisthesis with 9mm slip, and that he has a rotator cuff problem in his right shoulder. Whilst Ms Compton’s submissions were addressed to the proposition that neither Mr Vaimalu’s lumbar spine nor his right shoulder had been injured on 6 December 2018 as he at first alleged, they did not, with respect, establish that the light duties work Mr Vaimalu was doing was unrelated to the onset of symptomatology in both areas.
It was not clear as to the exact dates that Mr Vaimalu was working on light duties. He went back to the light pallet work at around Christmas 2018, and stated that he commenced with the Salvation Army “in or around March 2019.” Dr Teh’s notes indicated that on
6 February 2019 the insurer’s rehabilitation organisation, “Work Force” had suggested that Mr Vaimalu transfer away from doing the light duties pallet work, as Mr Vaimalu was being subjected to harassment at work where his car had been marked in the car park and “his employer does not like him to stay on workers comp and was told to stay home.”
The entry of 12 March 2019 noted that Dr Teh had told Mr Vaimalu to work at the Salvation Army shop “as arranged by Work Force.” Whether Mr Vaimalu did so is not clear because he was certified as being unfit, and on that day was noted to be “very agitated again,” and was due for a psychological assessment the following week. An entry on 29 April 2019 said that Mr Vaimalu’s mood had improved but no suitable duties had been found with the Salvation Army. A further entry of 12 June 2019 indicated that Mr Vaimalu in fact started work with the Salvation Army the week before.
Be that as it may, the evidence establishes that Mr Vaimalu worked from just before Christmas 2018 to about early February 2019 doing light duties, and that from early June 2019 he was doing light duties at the Salvation Army Charity Shop at St Marys.
It does not appear that Mr Vaimalu was doing any other form of light duties, indeed he may well have been off work with his anxiety over that intervening period of time. It is relevant that Mr Vaimalu’s rehabilitation had been carried out through the auspices of the insurer.
Dr Teh referred to a number of injury management conferences with Allianz, and indeed
Mr Vaimalu also referred to the involvement of the injury management specialists.
Mr Vaimalu was noted on 1 July 2019 to have “got rid” one of the rehab providers because the provider was not helping.
I have above referred to the duties described by Mr Vaimalu whilst he was doing light duties, in his statements of 23 October 2020 and 20 November 2023. He described duties such as water blasting stacks of pellets, removing nails from fence palings with a grinder whilst he was at the Loscam site at Wetherill Park. He also described his work with the Salvation Army as being for five hours per day five days per week. He said he had to sort out the donations, assemble and repair bed frames and check donated electronics.
In his third statement of 25 March 2024, Mr Vaimalu no longer asserted that he had injured his right shoulder for his lumbar spine in December 2018. As noted, the statement was extremely detailed and described with much more particularity the light duties that he performed both at Lascom in Wetherill Park and with the Salvation Army at St Marys. He stated that he had complained to Dr Teh about his back on 23 April 2020, saying:
“[16] The work at the Salvation Army shop caused more injury to my right arm and shoulder and also caused problems in my lower back as I was struggling to utilise my body strength...”
He said that the work involved “significant amounts of bending, lifting and carrying,” and he described some examples at [15]. Ms Compton said that those allegations were disputed, but the respondent did not tender any lay evidence to that effect. There was no denial that Mr Vaimalu was incorrect, or that he had been exaggerating his evidence. Even the histories taken by Dr Smith and Associate Professor Courtenay were consistent as to the nature of those duties.[29] Their opinions were affected by their adverse impression about
[29] Dr Smith at reply page 23, Dr Courtenay at Reply pages 35-36.
Mr Vaimalu’s credit.
What does emerge from the evidence is that Mr Vaimalu is a somewhat combative character of a somewhat uncompromising mind. Dr Teh noted on 1 July 2019 that
Mr Vaimalu had “got rid of” Howard, his then rehab provider, because he was not helping Mr Vaimalu. Dr Teh’s notes recorded that Mr Vaimalu was variously “upset,” “agitated,” “angry,” and “abusive” over the period. I note Mr Vaimalu’s arguments with Associate Professor Courtenay, and indeed Dr Teh himself.
It may readily be accepted that Dr Bodel’s first opinion of 19 March 2021 that ascribed the right shoulder and lumbar spine impairment to the December 2018 event was inconsistent with his later opinions. It may also be accepted that Dr Bodel’s report of 15 May 2023 was no more than an ipse dixit, as it failed to indicate the facts or circumstances of his inconsistent opinion. He simply referred to his letter of instructions which apparently contained an invitation to accept eight assumptions, but had not been tendered. It is also unclear what Dr Bodel meant by his comment:
“I was aware of these substances at the time of my assessment.”
Further, Dr Bodel’s inconsistent opinion that the cause of Mr Vaimalu’s injury to his shoulder (and indeed the entire right upper limb) and lumbar spine was now the nature and conditions of his work between 1 April 2018 and 17 September 2020 was unexplained. This report was accordingly of little probative value and offended the usual rules regarding expert opinion.
However Dr Bodel’s further report of 19 March 2024 revisited his change of opinion. He explained that he had Mr Vaimalu’s supplementary statement dated 11 March 2024, and he set out the facts and circumstances contained in that statement. He repeated the allegations of the nature of the work Mr Vaimalu was asked to do on light duties, both at Wetherill Park and St Marys. There was a slight variation in the history of the onset of the low back condition, as Dr Bodel noted that the light duty work at Wetherill Park had put a strain on Mr Vaimalu’s back, whilst the first contemporaneous note of a back complaint from Mr Vaimalu occurred in Dr Teh’s clinical notes dated 27 May 2020. I note however that
Mr Vaimalu did not suggest he complained about the onset of his back problems whilst he was doing the paling float and waterjet work he described at [11] and [12].[30] Dr Bodel noted the heavy lifting of large items and boxes of clothing, TVs and other white goods that
Mr Vaimalu described he was required to do whilst at St Marys. As noted Dr Bodel said, to repeat:[31]
“I acknowledge the additional background information that you have provided and I assume and I acknowledge that I proceed with answering your questions on the assumption that these additional Statements are based on the supplementary Statement from your client being true. They are Items A through to Items N from page 1 through to halfway down page 3. I acquired the same understanding of those matters from the signed Statement.”
[30] ARD pages 11/12.
[31] ARD page 76.
Again, the letter of instructions was not tendered, but I accept that Dr Bodel relied on
Mr Vaimalu’s statement of 11 March 2024 in explaining his opinion. He repeated his opinion of 15 May 2023 that the work described constituted the main contributing factor to the “aggravation, acceleration, exacerbation and deterioration of underlying disease process, including degenerative disc disease and rotator cuff pathology in the right shoulder.”
Both Dr Smith and Dr Courtenay acknowledged the underlying pathology but I was not persuaded by their attempts to distance Mr Vaimalu’s complaints from the light duty work he described to them.
In the case of Dr Smith, whilst it may be accepted that a SLAP lesion may commonly be seen in asymptomatic people, and that degenerative spinal disease was a universal problem, he made no attempt to explain why the duties described did not have any effect on those pathologies. He rejected any such connection on the basis that Mr Vaimalu demonstrated inconsistency on clinical examination, and that he had a “very histrionic presentation.” It is not unknown for claimants who know they are being examined by an expert to present in an exaggerated or histrionic manner. Whilst such a presentation does not assist their cause, neither does it mean that their complaints may simply be dismissed – especially when pathology has been unequivocally demonstrated. I found Dr Smith’s opinion to be simplistic in its attempt to dismiss the pathologies as being unrelated.

Associate Professor Courtenay also expressed reservations about Mr Vaimalu’s credit – particularly the arm brace that Dr Courtenay suspected was not being worn usually, and he noted Mr Vaimalu’s “really well formed muscles, thickening callosities on the hands and highly toned muscles.” Unfortunately Dr Courtenay attempted to express some hobby expertise about pallets which he used to disparage the account given by Mr Vaimalu.
Mr Vaimalu returned serve in his statement of 20 November 2023, denying Dr Courtenay’s assertions and accusing him of being “uninformed” and that he “does not know what he is talking about.”
This altercation is something of a red herring, as it related to the work Mr Vaimalu was doing prior to his elbow injury on 10 or 6 December 2018. Nonetheless there was a clear challenge to Mr Vaimalu’s account, and I note Mr Vaimalu’s invitation to the insurer to verify his description by speaking to Loscam workers.
Dr Courtenay conceded that a 9mm anterior spondylolisthesis at L5/S1 which was related to a bilateral L5 bony defect, was a significant degree of anterior spondylolisthesis and a “significant cause of low back pain particularly in younger patients.” Dr Courtenay noted the history recorded by Dr Teh of back pain pre-injury and accepted that the back pain “would definitely have been flared when he was doing the work, particularly when he was leaning over…” I was not assisted by DR Courtenay’s opinion that because he could not see any evidence of progression in the pathology, the pain would have settled when Mr Vaimalu stopped doing the heavy work. He did not explain what “progression” he was referring to, nor did he explain why a cessation of heavy work carried with it a conclusion that the symptoms would also have ceased. Again Mr Vaimalu’s attitude worked against him and
Dr Courtenay noted his extreme anger, to the extent that he thought there were mental health issues involved. Although Dr Courtenay acknowledged the existence of the pathology in the right shoulder, he found nonetheless that the shoulder was “actually in good condition.”
I was not assisted by the report of Dr Antoun, whose report consisted of a file report, largely concerned with a hearsay conversation with Dr Teh. Dr Antoun’s expertise was not given, and he was reporting to the insurer regarding injury management.
I also have strong reservations about the opinions of the respondent’s experts, as
Mr Vaimalu has some contemporaneous support from Dr Teh, whose clinical notes show that Mr Vaimalu made consistent complaints about his condition. It is to Mr Vaimalu’s credit that he reported that his elbow and wrist condition was improving from time to time, as it demonstrates a positive approach to his treatment. It is also relevant to note that
Mr Vaimalu was conscientiously engaging in light duties between Christmas 2018 and September 2020 (save perhaps for the period before he joined the Salvation Army shop when he may have been off work through anxiety). There were no complaints that he was an infrequent attendee, or that he was unreliable in his timekeeping.
Bearing in mind the caution that must be exercised when considering the probative value of clinical notes, it can certainly be inferred that Dr Teh, after seeing the CT scan of the lumbar spine, did not discount Mr Vaimalu’s symptoms as being work related. His comment on
3 August 2020 about the comparative value of a pain specialist against actual treatment (presumably by physiotherapy) implied that he was of the view that Mr Vaimalu’s complaints had genuine pathological bases, and his comment on 1 March 2021 that the injuries were work related further support Mr Vaimalu’s case. The clinical notes also support the opinion of Dr Bodel of 25 March 2024.
In all the circumstances I am satisfied that Dr Bodel’s opinion of 25 March 2024 has been given in a fair climate, given the confusion caused by Mr Vaimalu’s statement of
23 October 2020, which was more concerned with the events at St Marys than accuracy as to dates.[32]

SUMMARY
[32] See Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58.

In the first place, no lay evidence was called by the respondent as to the actual light duties Mr Vaimalu had been performing. Mr Vaimalu described it as being of a repetitive nature which involved bending and lifting, of a nature that was capable of aggravating exacerbating, accelerating or deteriorating his underlying pathology.
Secondly, the medical experts relied on by the respondent gave opinions that did not come to grips with the issue of whether the nature of Mr Vaimalu’s light duties could have aggravated the pathology. They did not have any other evidence than the histories given by the applicant, and both experts considered he was unreliable. In the absence of evidence as to the actual duties Mr Vaimalu had to perform, their assumptions that the nature of the work did not aggravate the pre-existing conditions were necessarily speculative.
Thirdly, even if I found Mr Vaimalu’s credit had been so badly compromised that I could not accept his evidence without contemporaneous support, such support was contained within the clinical notes of Dr Teh. I do not make that finding, however, for the reasons given above.
I accordingly make the orders set out above.

[2024] NSWPIC 482

29 August 2024