Verma v Transit Systems West Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Verma v Transit Systems West Services Pty Ltd [2025] NSWPIC 38
APPLICANT:	Rajnish Verma
RESPONDENT:	Transit Systems West Services Pty Ltd
MEMBER:	Fiona Seaton
DATE OF DECISION:	5 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; disputed injuries to right hip and lumbar spine, claim for weekly payments and medical expenses; Held – the applicant sustained an aggravation of his right hip disease and a lumbar spine injury on 26 February 2024; the respondent is to pay weekly benefits compensation and reasonably necessary medical expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained an aggravation of his right hip disease in the course of employment with the respondent on 26 February 2024 and the employment was the main contributing factor to the aggravation pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act). 2. The applicant sustained a lumbar spine injury in the course of employment with the respondent on 26 February 2024 pursuant to s 4(a) of the 1987 Act and the employment was a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act. 3. The respondent is to pay the applicant weekly compensation at the pre-injury average weekly earnings (PIAWE) rate of $1,878.02 subject to indexation as follows: (a) 10 July 2024 to 29 September 2024 at $1,878.02 x 80%, or $1,502.42, less current work capacity of 20 hours per week at $32.73 per hour or $654.60, pursuant to s 37(3) of the 1987 Act; (b) 30 September 2024 to 8 October 2024 at $1,878.02 x 1.0198, or $1,915.20 x 80%, being $1,532.16 pursuant to s 37(1) of the 1987 Act; (c) 9 October 2024 to 23 October 2024 at $1,878.02 x 1.0198, or $1,915.20 x 80%, being $1,532.16, less current work capacity of 20 hours per week at $32.73 or $654.60, pursuant to s 37(3) of the 1987 Act, and (d) 24 October 2024 to date and continuing at $1,878.02 x 1.0198, or $1,915.20 x 80%, being $1,532.16, pursuant to s 37(1) of the 1987 Act. 4. The parties have 14 days liberty to apply with respect to the calculation of indexation of the weekly compensation amount referred to above. 5. The respondent is to pay the applicant’s past medical, hospital or related expenses in the amount of $1,223.45 including two consultations with Dr Ashaia and the MRI costs of 23 September 2024 on production of accounts, receipts and Medicare Notice of Charge. 6. The applicant is entitled to payment of reasonably necessary future medical, hospital or related expenses arising from the aggravation of his right hip disease and lumbar spine injury on 26 February 2024 pursuant to s 60 of the 1987 Act. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant Mr Rajnish Verma was employed as a bus driver by the respondent Transit Systems West Services Pty Ltd. At about 6.30pm on 26 February 2024 while driving a bus crossing Canterbury Road on route to Sydenham train station the applicant felt the suspension go down, the bus strike a pothole, he felt a jerk in his driver’s seat and jarring from the seat. The applicant felt an immediate onset of pain at his right hip and back. He noticed difficulty moving his right leg and operating the bus pedals.
On 28 February 2024 the applicant commenced light duties and in about mid-March he returned to driving a bus as suitable duties, however he struggled with right hip and groin pain and using his right leg for the brake and accelerator to operate the bus.
A dispute notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 was issued on 10 July 2024 disputing liability for the lumbar spine and right hip injuries and suitable duties were withdrawn. The dispute was maintained in a further s 78 notice issued on 18 October 2024 and following internal review.
The applicant lodged an Application to Resolve a Dispute (ARD) with the Personal Injury Commission (Commission) on 6 November 2024 claiming weekly benefits compensation from 10 July 2024 and medical or related expenses.
The dispute was listed for conciliation conference and arbitration hearing to determine whether the applicant sustained an aggravation of right hip condition and/or lumbar spine injury as a result of the incident on 26 February 2024 pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act), and whether he has entitlements to weekly benefits and medical expenses as a result of the injury.

ISSUES FOR DETERMINATION

The parties agree the following issues remain in dispute:
(a) whether the applicant has sustained a right hip condition as a result of the injury with deemed date of injury 26 February 2024 pursuant to s 4 of the 1987 Act;
(b) whether the applicant has sustained a lumbar spine condition as a result of the injury with deemed date of injury 26 February 2024 pursuant to s 4 of the 1987 Act;
(c) the extent and quantification of the applicant’s entitlement to weekly benefits from 10 July 2024 to date and continuing pursuant to s 37 of the 1987 Act, and
(d) whether the applicant is entitled to the payment of medical expenses pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing before the Commission on 15 January 2025. Mr Ross Hanrahan appeared for the applicant instructed by Mr David Pena, legal practitioner. Mr Justin Hart appeared for the respondent instructed by Ms Tarana Singh, legal practitioner. Ms Rebeiro and Ms Heron were also present.
During conciliation the respondent’s Application to Lodge Additional Documents dated
9 January 2025 and the applicant’s Application to Lodge Additional Documents dated
10 January 2025 were admitted into evidence by consent. The report of Dr Le, general practitioner, of 14 March 2024, the updated clinical records of Minto Mall Medical Centre and of Advance Liverpool Medical Centre were also admitted by consent. The year in paragraph 8 of the applicant’s statement of 29 October 2024 was amended by consent to 2018.
I am satisfied the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    respondent’s Application to Lodge Additional Documents dated 9 January 2025 (ALAD 1) and attached documents;
(d)    applicant’s Application to Lodge Additional Documents dated 10 January 2025 (ALAD 2) and attached documents;
(e)    report of Dr Le, general practitioner, dated 14 March 2024;
(f)    clinical records of the Minto Medical Centre, and
(g)    clinical records of Advance Liverpool Medical Centre.

Oral evidence

No application was made to call oral evidence or to cross examine the applicant.

Applicant’s evidence

The applicant relies on his statement signed on 29 October 2024.
He first worked as a full time bus driver for the State Transit Authority in 2009 based at the Bonnyrigg depot, later transferring to the Tempe depot, until the respondent took over that area in about 2018.
The applicant was then employed by the respondent as a full time bus driver in 2018 and remained based at the Tempe depot. He enjoyed his work and worked hard. He usually worked the midday shift between 10.00am and 12.00pm finishing between 7.30pm and 10.00pm, usually an eight or nine hours shift, driving all over Sydney’s inner west, southern and eastern suburbs and the central business district.
He was required to sit for prolonged periods and constantly brake and accelerate the bus using his right leg. He took pride in his driving and handling of the bus. It was a hard job due to traffic and because of the state of the roads with potholes and other hazards being very common.
He made good recovery from a motor accident on the way to work on 26 February 2011, he played club cricket and he was active and pretty fit.
The applicant developed hives in about late 2019 which lasted for about three or four months. He used sick leave and income protection for the time he had off work. He took Prednisone for a couple of months or so as well as Zyrtec, as advised by his doctor. He made a good recovery. He was happy to return to work and to playing cricket and badminton.
On 26 February 2024 from about 5.00pm the applicant noticed the bus he was operating had a problem with the suspension. It was not stable and for no reason it would go down and then up. He decided to book the problem in to the system when he finished his shift.
At about 6.30pm while crossing Canterbury Road in Hurlstone Park he felt the suspension of the bus go down. The front wheel of the bus struck a pothole and he felt a jerk in the driver’s seat. He believed the pothole must have been deep because of the jarring he felt coming up from the driver’s seat. He felt immediate pain at his right hip and back. He had not had that pain in the past.
The applicant kept driving and had trouble moving his right leg and operating the pedals to drive and stop the bus because of right hip pain. He drove slowly to Sydenham train station, the last stop on the route.
The right hip and right sided back pain continued and he reported the injury to the duty officer as well as telling them the bus suspension was not good, it was going up and down, and he could not continue his run. The applicant called the radio room and reported the injury as well as the suspension problem. He then drove about 3km back to the Tempe depot.
At the depot he filled out an injury form and the duty officer told him the work doctor at IMMEX had to be called. The applicant spoke to the doctor from the depot and the duty officer allowed him to finish up for the day and go home. He took Panadol and applied heat packs to his right hip, back and right groin area but struggled to sleep that night due to pain.
On 27 February 2024 the applicant consulted the IMMEX doctor and had physiotherapy. He had difficulty walking due to pain and he had trouble sitting down for long periods. The doctor explained he had to do light duties and that he cannot sit at home.
Light duties commenced on 28 February 2024. He was sent to Sydenham train station where he checked bus times, recorded arrival and departure times and counted and recorded the passengers getting on and off the buses. This was hard as he was required to stand for long periods. This aggravated the back and right hip pain and he had to sit down. It was also hard for him to sit for long periods as this also aggravated the pain.
The IMMEX doctor referred him for an X-ray and ultrasound on 1 March 2024. He continued to follow the advice of the doctor and he had physiotherapy, however he continued to have trouble with light duties. His pain continued to be aggravated by light duties. Even driving a car aggravated his right hip pain.
Although he did not feel that much progress was being made, when the IMMEX doctor spoke to him about returning to driving as part of suitable duties in about mid-March 2024 the applicant agreed.
The applicant really struggled with back and right hip pain and the pain to his right hip and groin became more intense as he used his right leg to operate the brake and accelerator. He was worried that difficulty applying pressure on the brake pedal because of intense right hip pain may cause an accident. He only managed to drive for a total of four or five hours on one day and he was taken off driving duties. He continued with light duties.
The applicant kept taking Panadol. He continued to have trouble standing, sitting and walking for long periods as well as walking up and down stairs.
A right hip MRI was carried out on 20 March 2024. The IMMEX doctor told him his claim could be declined which shocked the applicant. He saw Dr Richard Walker on 15 April 2024 who explained he might need a hip operation.
As he was worried about his right hip, the applicant decided to see his usual general practitioner Dr Zaki. Dr Zaki reduced his work hours for suitable duties to five hours a day. He continued to do suitable duties at Sydenham and Rockdale train stations. His back and right hip pain continued to be aggravated.
The applicant consulted Dr Ashaia, orthopaedic surgeon, and from 29 June 2024 to
7 July 2024 Dr Ashaia certified him as having no work capacity. Dr Zaki certified the applicant as fit for suitable duties with restrictions for four hours a day five days a week between 8 July 2024 and 24 July 2024. The applicant battled with suitable duties which he found very hard. When the right hip was very bad he struggled to walk.
When the claim was disputed suitable duties were withdrawn on 11 July 2024 which shocked the applicant. He was sent home and told he would not be paid as the claim was declined. He has not returned to work since. He was certified unfit to work from 12 July 2024 to
2 August 2024.

Dr Richard Walker, treating orthopaedic surgeon

The applicant relies on the report of Dr Richard Walker, treating orthopaedic surgeon, dated 15 April 2024.
Dr Walker provides the diagnosis of right hip avascular necrosis, more advanced than in the left hip. The applicant has no symptoms in the left hip. He notes the applicant was treated for hives four to five years ago receiving monthly injections of Omalizumab and intermittently taking Prednisone tablets.
The avascular necrosis on the right hip, a condition where blood flow to the hip joint has been disrupted, has been present for longer than the few months since he first noticed symptoms.
The cause is unclear in Dr Walker’s opinion but may be related to past intermittent use of Prednisone. Driving over a pothole at work seems to have exacerbated a previously asymptomatic right hip.
The agreed upon plan for management of the applicant’s condition included referral to a rheumatologist or endocrinologist for consideration of bisphosphonate prescription, reduction of alcohol intake to a minimum and maintenance of weight, pain management with over the counter medications like Panadol and anti-inflammatories as needed, and potential future hip replacement. He will have to live with some pain that at times will vary in nature.

Dr Adel Zaki, treating general practitioner

Dr Adel Zaki, treating general practitioner, referred the applicant to Dr Wagdy Ashaia on
[1] ARD page 34.
19 June 2024. Dr Zaki described the applicant as a bus driver who suddenly sustained a work related accident some four months earlier. Whilst driving “the bus dropped into a street pot [sic] back then - resulting in persistent lower back and bilateral hip pain mainly on the right with persistent difficulty walking.”[1]

Dr Uthum Dias, independent occupational physician

Dr Uthum Dias, occupational physician, was qualified by the applicant and his report is dated 28 August 2024.
The applicant provided a history to Dr Dias of hitting a deep pothole on 26 February 2024 on Canterbury Road, and the impact transmitting a significant jarring sensation through the bus suspension to his seat when he felt immediate pain in his lower back and right hip region.
Dr Dias diagnoses a persistent aggravation of previously asymptomatic right hip avascular necrosis with associated chronic post-traumatic trochanteric bursitis secondary to an acute right hip soft tissue injury as well as chronic right-sided lumbar spine pain, stiffness and discomfort secondary to an acute muscular ligamentous strain.
Employment with the respondent is the main contributing factor to the aggravation, acceleration and exacerbation of pre-existing right hip avascular necrosis. All of the applicant’s ongoing symptoms, disabilities and impairments with respect to his lumbar spine remain attributable to the work-related incident of 26 February 2024.
In Dr Dias’ opinion the applicant is unfit to return to his pre-injury job role as a bus driver/operator for the respondent, however he is fit to work within the 11 restrictions the doctor sets out in his report. The applicant remains totally unfit for work in any job role within the scope of his previous education, training and experience at the present time as a result of his work-related injuries affecting his right hip and lumbar spine regions.
The assessment of 14% whole person impairment is made by Dr Dias with 7% assessed for each of the lumbar spine and right hip.
Dr Dias does not agree with Dr Raymond Wallace in ascribing all of the applicant’s right hip symptoms, disabilities and impairments to pre-existing right hip avascular necrosis. The left hip also has avascular necrosis but is asymptomatic and on the balance of probabilities
Dr Dias finds it likely that the right hip would have remained asymptomatic had it not been for the accident on 26 February 2024.

Dr T Mastroianni, independent occupational physician

The applicant also relies on the reports of Dr Mastroianni, occupational physician, dated
30 August 2024 and 21 September 2024, provided to Point Underwriting Agency.
Dr Mastroianni’s opinion is that the accident on 26 February 2024 aggravated and precipitated symptoms of pre-existing asymptomatic avascular necrosis. He agrees with
Dr Wallace that the condition was not caused by the accident as the cause is idiopathic, however it was aggravated.
In Dr Mastroianni’s opinion the avascular necrosis was unlikely to have been caused by the use of Prednisone in 2019 and the extent was also not significant indicating the necrosis has not been present for years but probably months, although it is impossible to date its onset.
The applicant would not have known he had this underlying condition until it was diagnosed on the recent MRI. The doctor noted the avascular necrosis in the left hip is asymptomatic.
On 21 September 2024 Dr Mastroianni provided a supplementary report to the Point Underwriting Agency in which he diagnoses avascular necrosis, tendinopathy, bursitis and labral tear right hip.
The avascular necrosis is bilateral, the left hip is asymptomatic while the right hip is symptomatic. The accident precipitated symptoms and aggravated pre-existing asymptomatic avascular necrosis. The bursitis, tendinopathy and labral tear were caused by the accident.
Dr Mastroianni agrees with Dr Wallace that the applicant is currently incapacitated for work as a bus driver but disagrees it is due to a non-work related idiopathic condition of the right hip. The right hip conditions are causing the incapacity and all of the conditions are causally related to the accident, which are in his opinion compensable as an aggravation of a pre-existing asymptomatic condition regarding the avascular necrosis and causing the bursitis, tendinopathy and labral tear de novo.
The report of the ultrasound and X-ray of the applicant’s right hip dated 1 March 2024 comments that there is trochanteric bursitis, mild gluteus minimus and medius tendinopathy.
The MRI of the right hip dated 20 March 2024 shows bilateral femoral head avascular necrosis without articular surface collapse and thinning of the cartilage and undersurface tear of the anterosuperior labrum.
Clinical records of IMMEX Wetherill Park include a note made by Dr Talab on
[2] ARD page 76.
27 February 2024 of the onset of lower back pain while driving when the bus hit a pothole. The physiotherapist on 29 February 2024 refers to “[r]ight lower back soft tissue injury and right groin/adductor strain ? bursitis”.[2]
Clinical records of Advance Liverpool Medical Centre include Dr Zaki’s note on
30 March 2024 of the applicant feeling immediate right hip pain since the applicant suddenly hit a pot hole while driving his bus. He had had persistent right hip pain for almost the last month or so. Persistent back pain was noted on 18 April 2024 as well as right hip pain.

The Certificate of Capacity of Dr Talab dated 26 February 2024 refers to musculoligamentous lumbar strain and that the applicant experienced the onset of lower back pain while driving when the bus hit a pothole on 26 February 2024. The applicant has capacity for his usual hours and days with restrictions including no bus driving.
On 27 February 2024 Dr Talab’s Certificate of Capacity includes the diagnosis of soft tissue injury to the right hip on 26 February 2024. The applicant has no capacity for work on
27 February 2024 then usual hours and days from 28 February 2024 with restrictions. The applicant experienced the onset of lower back pain while driving when the bus hit a pothole, and he has since developed severe pain radiating to right groin and right inner thigh.
On 30 March 2024 Dr Zaki provides a Certificate of Capacity with a diagnosis of right trochanteric bursitis, gluteus muscle tendinopathy with femoral head avascular necrosis and anterosuperior labral undersurface tear. Dr Zaki certifies the applicant with capacity to work for four hours a day five days a week with restrictions including no bus driving.
The applicant has no capacity to work from 12 May 2024 to 7 July 2024 due to a recent acute exacerbation.
Dr Zaki then certifies the applicant as having capacity to work four hours per day five days per week from 8 July 2024 to 9 September 2024 with no bus driving. He has no capacity for work between 24 October 2024 and 16 November 2024 with persistent pain noted by Dr Zaki as a factor delaying recovery.
Invoices and receipts for medical expenses for two consultations with Dr Ashaia and the MRI of 24 September 2024 are attached to the ARD.
ALAD 2 attaches Certificates of Capacity dated 15 November 2024 and 9 January 2025 which certify the applicant as having no capacity to work between 16 November 2024 and
13 December 2024 and between 9 January 2025 and 29 January 2025.
An email from the respondent’s solicitor dated 30 December 2024 is also attached to ALAD 2. This confirms no claim form was submitted and provides the incident notes of
27 February 2024.
This notes the incident occurred at 5.39pm on 26 February 2024 with sharp pain to the applicant’s back and right leg after his bus went over a pothole on route to Sydenham. The applicant brought the bus back to the shed, medical assistance was declined and the IMMEX doctor was contacted with an appointment arranged for 27 February 2024. The incident was reported and downloading of the bus CCTV scheduled.
The updated clinical records of Advance Liverpool Medical Centre include Dr Zaki’s Certificate of Capacity certifying the applicant as having no capacity for work from
30 September 2024 to 8 October 2024 and some capacity for work from 9 October 2024 to 23 October 2024 for four hours a day five days per week.
Dr Ashaia’s report of 2 October 2024 refers to the bilateral hip MRI showing relatively stable avascular necrosis progression compared to the March MRI with no subchondral collapse on the left side and a small collapse noted on the right side. There are no significant symptoms on the left and the applicant is more symptomatic on the right side.
The applicant’s wages schedule includes the claim for weekly benefits compensation from
10 July 2024 to date and continuing at PIAWE of $1,878 pursuant to s 37 of the 1987 Act.

Respondent’s evidence

The reply attaches s 78 notices of 20 July 2024 and 18 October 2024 and the outcome of internal review of 18 October 2024.

Dr Richard Wallace, orthopaedic surgeon

The respondent relies on the report of Dr Raymond Wallace, orthopaedic surgeon, dated
18 June 2024.
Dr Wallace diagnoses spontaneous onset of right hip pain on 26 February 2024 and idiopathic avascular necrosis femoral head right hip – non-work related.
Dr Wallace’s opinion is that the applicant would have noted the onset of right hip symptoms at about the same time and at the same stage of his life had he not been at work or employed by the respondent.
Driving over the pothole and noting the onset of right groin pain is not consistent with this being the cause of any significant right hip pathology in Dr Wallace’s opinion.
The MRI findings of 20 March 2024 show evidence of idiopathic avascular necrosis at the applicant’s bilateral hips which would have been present for some months prior to this investigation.
Dr Wallace notes the applicant was previously treated for hives by courses of Prednisone tablets in 2019 and 2020, and that factors associated with secondary osteonecrosis include corticosteroid use and alcohol intake in a dose dependent nature.
Dr Wallace concludes the right hip condition is unrelated to employment with the respondent, no treatment is required, and the applicant has no work incapacity as a result of any work related condition of his right hip.
There is no work-related aggravation, acceleration or recurrence of a pre-existing right hip condition by driving over a pothole in a bus.
ALAD 1 attaches the respondent’s payroll summary, the supplementary report of Dr Wallace dated 8 January 2025 and CCTV footage from the date of the incident.
Dr Wallace was asked to comment on Dr Dias’ and Dr Mastroianni’s opinions on capacity and medical treatment.
Dr Wallace disagrees with their conclusion that the applicant suffered an aggravation of his pre-existing right hip condition as a result of the incident on 26 February 2024.
The CCTV footage in Dr Wallace’s opinion shows a minor side to side movement in the driver’s seat as the applicant drives over a pothole, which is not consistent with it being the cause of any significant trauma at his lumbar spine or right hip.
Dr Wallace is of the opinion that it would be impossible for the applicant to suffer any injury at his right hip joint while seated in a bus driver’s seat fitted with suspension driving over a pothole causing a minor side to side movement in the seat.
The fact that the applicant was not weight bearing through his right hip joint at the time of the incident is inconsistent with it being the cause of any trauma at the joint in the alleged work incident of 26 February 2024. The incident on 26 February 2024 is not a substantial or main contributing factor to any current lumbar or right hip pathology.
Dr Wallace opines that the applicant has no work incapacity as a result of that alleged incident and he does not require any treatment or medical review as a result of the minor incident.
The incident as captured on video showed an almost imperceptible movement from side to side in the bus driver’s seat in Dr Wallace’s view.
The applicant would have noted the onset of right hip symptoms at about the same time or the same stage of his life had he not been at work or employed by the respondent as a bus driver on 26 February 2024.
Dr Wallace maintains his opinion is that there was no aggravation, acceleration, exacerbation or deterioration of his pre-existing right hip avascular necrosis to which his work was a main contributing factor.
The applicant has not suffered a right hip soft tissue injury as a result of his employment, he has not suffered any trauma at the right trochanteric bursa or his lumbar spine as a result of the minor incident on 26 February 2024, particularly given the video evidence of the incident, in the doctor’s opinion.

CCTV Footage

The first CCTV footage dated 26 February 2024 provided with ALAD 1 shows eight screens time marked 16.15.02 to 16.15.
It appears to show the applicant standing in the door of a bus lifting his right leg and stretching his left arm around to the back of his right hip, massaging his right leg/hip area with his right hand and lifting his right leg in a circular motion in what appears to be a stretch.
The second CCTV footage dated 26 February 2024 shows eight screens time marked 17.39.05 to 17.41.
It appears to show the applicant driving a bus. At 17.39.23 the applicant moves from side to side twice. The passengers also appear to jolt at the same time as the applicant. It is not possible to identify the pothole from the camera angles on the CCTV footage.
When the applicant stops at the next bus stop he places both hands on his lumbar spine to stretch, appears to try to rub his right upper leg and then places his right hand on his right lower back while driving. At the next bus stop he again appears to rub his right leg and lower back and places his hands behind his neck to stretch.

Other medical evidence

Dr Le, general practitioner at IMMEX Parramatta, reports on 14 March 2024 that the applicant has a diagnosis of right trochanteric bursitis and mild gluteus medius and minimus tendinopathy from the injury on 26 February 2024.
Dr Le comments that it is uncertain as to whether the injury that occurred while driving the bus over a pothole can cause this pathology.
On 11 March 2024 Dr Le comments that the applicant’s symptoms had somewhat improved. He was certified for pre-injury hours and he could drive a maximum of four hours on the bus with no other restrictions.
The clinical records of Minto Mall Medical Centre include notes of lower back pain on
18 April 2017, right back and neck pain on 26 June 2017, lower back pain radiating to the right leg on and off for six months or so on 30 May 2019, and back pain on
8 September 2020.
On 8 February 2024 Dr Dogra notes “lower back pain right leg pain few weeks”.[3] Dr Dogra records on 28 March 2024 that the applicant was referred to Dr Walker for his right hip.
[3] Minto Mall Medical Centre page 3.
The respondent’s wages schedule includes weekly benefits compensation from 10 July 2024 to date and continuing at PIAWE of $1,878.02 pursuant to s 37 of the 1987 Act with an ability to earn $1,878.02.

Applicant’s submissions

The applicant made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.

The applicant is 50 years of age. He worked as a bus driver for a period of over 15 years. It is well known a bus driver has to use his right lower limb more so than his left to operate the accelerator and brake pedals of the bus.
He was employed by the respondent from 2018. He enjoyed his work and worked hard.
The applicant developed hives, or urticaria, in 2019 and used Prednisone for a couple of months or so as well as Zyrtec, an antihistamine. He did what the doctor advised him to do, as he did after the incident on 26 February 2024.
On 26 February 2024 the applicant says there was a problem with the suspension of the bus he was driving. It was not stable whilst he was driving and for no reason that he could understand it would go up and go down. The bus was quite bumpy when the suspension went down.
On that day he felt the suspension go down. The front wheels of the bus struck a pothole and he felt a jerk in the driver’s seat. He believed the pothole must have been deep because of the jarring he felt. He felt immediate pain in his right hip, pain he had never had in the past.
He kept driving until the end of the route and then drove the bus back to the Tempe depot. He sought medical treatment from an IMMEX doctor and investigations were carried out, but it was not until the MRI some time later that the nature of the pathology was disclosed. He returned to work on light duties two days after the incident and had physiotherapy treatment.
The respondent initially accepted liability for the incident on 26 February 2024 and compensated the applicant for about five months. The applicant attempted to return to bus driving in about mid-March but was unable to drive after about four or five hours.
Dr Wallace describes the incident as minor and he takes a history of hitting a pothole and driving the bus on to Liverpool, a much longer distance than to Sydenham, which the applicant submits may have affected the doctor’s opinion about his capacity at that time.
Dr Wallace notes there is no previous history or episodes of pain which the applicant says is significant. He also does not note any complaint of pain in the lumbar spine and perhaps therefore did not examine it. The applicant was unfit for work for one day and then returned to work on part time light duties.
The applicant says Dr Wallace only examined him for 10 or 15 minutes and it was cursory.
Although Dr Wallace describes on examination a significant difference between the right and left lower limbs and that the applicant walked with a markedly antalgic gait on the right side, he relies upon the MRI report dated 20 March 2024 to say in his opinion the onset of pain was spontaneous and the condition is idiopathic. He notes the onset of pain was during the driving of the bus. He makes no mention of any aggravation which is relevant to the assessment of injury in this jurisdiction.
Dr Wallace does refer to a risk factor to the development of avascular necrosis as Prednisone which the applicant took in tablets in 2019 and 2020. It is not certain what dose was taken. There is no evidence of alcohol intake on the applicant’s part.
Dr Wallace concludes the condition is unrelated to work and work was not a substantial or main contributing factor to the cause or contraction of the right hip condition, with which the applicant agrees.
The applicant’s submission is however that Dr Wallace has completely ignored the case put of aggravation. Significant jarring has aggravated a pre-existing condition.
In his further report Dr Wallace describes the incident as a minor side to side movement from one pothole however the CCTV footage shows this to be an understatement the applicant submits.
The doctor also refers to the applicant being seated in a non-weight bearing position so that it is highly unlikely he would have suffered trauma in a bus driver’s seat fitted with suspension.
There is no explanation of the scientific basis for this opinion and Dr Wallace has not taken a sufficient or adequate history to justify his conclusions. He does not examine the lumbar spine at all.
Dr Walker in his report refers to the applicant being treated for hives four to five years ago and receiving monthly injections of Omalizumab and intermittently taking Prednisone tablets 12.5mg in 2019 and 2020, an uncertain dose.
The bilateral avascular necrosis Dr Walker describes as previously asymptomatic, and that driving over a pothole at work seems to have exacerbated a previously asymptomatic right hip condition. While the cause of avascular necrosis is unclear it may be related to past intermittent use of Prednisone. The avascular necrosis is bilateral but only one side is symptomatic following the incident on 26 February 2024.
Dr Dias provides a detailed report and concludes the applicant sustained a soft tissue injury to his right hip and lumbar spine regions from driving over a pothole on 26 February 2024 and his right hip condition was clearly aggravated as a result. The soft tissue injury to his lumbar spine remains symptomatic. He is unfit for any work.
Dr Mastroianni was qualified regarding an unrelated claim. In his opinion the pre-existing right hip condition was aggravated by his activities in February 2024. The doctor’s opinion is that it is unlikely the condition was caused by the use of Prednisone in 2019 while being treated for urticaria. Dr Mastroianni disagrees with Dr Wallace’s conclusions.
Dr Ashaia, the current orthopaedic surgeon, provides a report dated 2 October 2024. His opinion is that the progression of the applicant’s pre-existing avascular necrosis condition is now relatively stable on comparing MRIs.
Dr Ashaia notes there is no subchondral collapse on the left side as there is on the right, which is consistent with the applicant’s evidence. The applicant is now waiting for surgery.
Dr Wallace’s supplementary report denying the possibility of an aggravation is completely unconvincing in the applicant’s submission. It is not justified by any medical evidence.
Dr Wallace describes a minor side to side motion having viewed the CCTV footage, however this is inconsistent with the applicant’s evidence, the fitting of suspension is not correct and there is no scientific persuasiveness of the reasoning in his opinion.
The applicant’s submission is that there is sufficient medical evidence to be truly satisfied that something happened on 26 February 2024 which has made the applicant’s pre-existing condition that was previously asymptomatic now a major cause of injury for him.
The CCTV footage shows the applicant doing stretching exercises on 26 February 2024 before the incident, the bus bumping from side to side almost continuously and the applicant then holding his right hip as he is steering the bus and rising above the seat to adjust his position. This is consistent with the applicant’s statement evidence.
The applicant has tried to return to work and undertake light duties which he has found difficult. Dr Zaki now thinks he is totally incapacitated and that is confirmed by Dr Dias. He is entitled to ongoing weekly benefits compensation at the maximum rate and to have his medical expenses paid.

Respondent’s submissions

The respondent made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.
There is no dispute on the evidence that the contraction of the applicant’s underlying pathology was not caused by his employment. It is simply a question of aggravation and the relevant test, striking a pothole and the result of that, and whether that incident is the main contributing factor to the aggravation.
There is no requirement in the respondent’s submission to consider ss 15 or 16 the 1987 Act as the injury is pleaded as a frank injury which is not mutually exclusive with the aggravation of a disease.
The applicant’s submission that it is notorious that a bus driver will use their right or left side is not relevant because the claim is not made as a nature and conditions of employment claim over a period of time. It is simply a question of what happened on that particular day.
The fact that the applicant favours his right side and that is incapacitated does not mean this is work related. It could be because the pathology shows a tear on the right side. This does not necessarily have anything to do with the duties performed by the applicant.
The respondent’s submission is that the footage shows that what happened on the particular day is a continuation or a manifestation of a previous injury. This had been producing pain relatively soon before the incident and simply manifested itself in this way.
The history in all of the evidence the applicant relies on does not take this into account so it is not safe to place reliance on the applicant’s evidence.
Dr Wallace made inferences from the CCTV footage and used the word ‘minor’ for example. Part of Dr Wallace’s job is to assess whether the mechanism is capable of producing the pathology complained of and he determined the incident was minor.
President Judge Phillips in Chubb Fire and Security Pty Ltd v Trad [2023] NSWPICPD 79 (Chubb) confirms the general approach in the Commission is that the Commission and medical experts are able to draw inferences based on relevant facts if this is done carefully, which Dr Wallace has done.
The respondent rejects the applicant’s submission that there might have been multiple potholes. That is not the case the respondent is here to meet. It is not supported by the statement evidence or is it in the pleadings, and the CCTV footage does not show a pothole.
The CCTV footage predating the incident shows the applicant was reaching out for his back.
The applicant did not provide a supplementary statement after viewing the CCTV footage and the respondent submits the only inference that can be drawn is that the applicant is comfortable the footage shows the incident which is the subject of the complaint.
In relation to the applicant’s statement evidence on capacity, the respondent notes there is a decline in capacity that commences from 10 July 2024. The applicant sets out his conversation with an officer of the respondent and there is previous conflict there.
Before that time the applicant was on suitable duties and he left work on 11 July 2024 and has not returned to work since.

There is nothing in the evidence to explain why he was able to and had capacity to perform suitable duties up until that time and there has clearly been some conflict. It is not safe to draw an inference that he has not been able to return to work without any reasonable explanation or evidence. It would be difficult to place any significant weight on the applicant’s assertion of total incapacity from that time.
The applicant in his statement does not deal with any of the pre-existing complaints he has made to doctors. This is a critical part of the respondent’s submissions.
The Minto Mall Medical Centre records show on 8 February 2024 before the incident the applicant complained of lower back and right leg pain for a few weeks, and a care plan was booked. There is no attribution to any work-related involvement at this point.
That is not referred to in the applicant’s statement, the evidence of the applicant’s treating doctors or those qualified by the applicant. All proceed on an incorrect basis and there is real issue of reliability as they have proceeded on incorrect assumptions. This not an issue of credit but of reliability. No attempt has been made by the applicant to remedy that.
There are other references to lower back pain on 30 May 2019 and 8 September 2020.
Dr Walker describes the aggravation of the applicant’s right hip condition. Dr Walker did not have the benefit of viewing the CCTV footage and at its highest his opinion is in the respondent’s submission equivocal. The doctor does not give any indication of the way in which the injury is capable of having occurred in a mechanistic sense on 26 February 2024.
The respondent’s medical case is superior as only Dr Wallace has commented on the CCTV footage.
It is not meant as a criticism, but it would be natural for an applicant to provide an embellished account of the seriousness of an incident to a doctor but here there is an objective account of what happens on the CCTV footage.
In the circumstances it is difficult to place weight on a doctor’s opinion about the mechanism of an injury and whether or not it can cause an aggravation without having objective evidence to hand. Little weight can be placed on Dr Walker’s opinion.
Dr Dias diagnoses the applicant with persistent aggravation of previously asymptomatic right hip avascular necrosis. We know however that it was symptomatic and so this is incorrect.
Dr Dias has not viewed the CCTV footage.
Dr Dias based his opinion on the applicant having no documented pre-existing injuries or conditions affecting his hip or lower back and that he had been pain free and asymptomatic in these regions before the incident.
Dr Dias has proceeded on an incorrect premise in the respondent’s submission. As the applicant was symptomatic before the incident on 26 February 2024 there cannot be a natural inference that the incident was the cause of the aggravation of his conditions.
Dr Mastroianni does at least have a limited history of the previous symptomatology, noting the applicant’s back was injured while gardening on 8 September 2020 and noting right back pain and leg on 8 February 2024 from the Minto Mall Medical Centre records.
The history is not interpreted by Dr Mastroianni who makes the bare assertion that the avascular necrosis in the right hip is idiopathic aggravated by the incident (hitting a pothole). In his opinion the symptoms were first experienced after hitting the pothole although he notes the applicant already had right back pain and leg pain. His opinion is not supported by objective evidence.
In his report of 21 September 2024 Dr Mastroianni again opines that the pre-existing asymptomatic avascular necrosis, the bursitis, tendinopathy and labral tear were sustained in the course of the applicant’s employment as a bus driver when he hit a pothole.
Dr Mastroianni disagrees with Dr Wallace’s opinion on the basis that the applicant had no symptoms of avascular necrosis prior to the injury and were it not for the incident aggravating the necrosis he would be asymptomatic again, which we know is wrong.
Dr Wallace’s report of 18 June 2024 is probably of little assistance in that he does not deal with the right questions, however he does in his supplementary report.
Dr Wallace is asked if he considers the applicant sustained a frank injury to the right hip when he allegedly drove over a pothole causing an aggravation, acceleration, exacerbation or deterioration of pre-existing right hip avascular necrosis.
There are three reasons for his opinion; first he was in a seated position and was not weight bearing through the right hip, and second the CCTV footage showed an almost imperceptible movement from side to side which the respondent submits is an acceptable articulation of what is depicted as there is not a jarring up and down. A commonsense evaluation of that evidence is that the bus is doing what the bus should be doing.
The final conclusion of Dr Wallace’s reasoning process is that he engages with the pathology and explains the onset of the right hip symptoms would have occurred at the same time had he not been employed as a bus driver on 26 February 2024.
Dr Wallace did not have the benefit of the clinical records but his thesis is proven correct by what we now know is in those records. The parties only now have access to those records. The only doctor that refers to them is Dr Mastroianni but it does not feature in his analysis.
The respondent’s submission is that Dr Wallace’s opinion must take precedence over the other doctors who do not have the benefit of having seen the CCTV footage. Dr Wallace also does not have the benefit of clinical records but that is a problem the applicant must bear.
Dr Wallace then engages in a sophisticated reasoning process that is unique in this case.
The CCTV footage shows the applicant is concerned about his back using movements which are not dissimilar to the movements he ultimately performs after the incident. This is consistent with the respondent’s case that the applicant was already experiencing the pain he now complains of before the alleged frank injury. That is supported by the CCTV footage. There is no change in the way the applicant is acting before and after the claimed incident.
Work simply provided the occasion or the time for that pre-existing condition to manifest itself.

Applicant’s submissions in reply

The applicant’s medical practitioners did not have the opportunity to view the CCTV footage as it became available late in the day.
On the question of causation there is a chain of events and the whole combination of factors are to be taken into account when looking to see the thing that makes the difference. In Chubb the photo showed a rough surface and not a pothole and that satisfied the Member. The CCTV footage does not show a pothole but the Commission can be satisfied that there was a rough surface on the road.
There is sufficient material in the CCTV footage to draw the inference that it was a rough ride on that bus that day and whether or not this was the biggest pothole, something occurred on 26 February 2024 which was relevant to the applicant’s complaints.
The applicant discussed back pain and right leg pain with Dr Dogra but not the right hip.
Dr Dogra does not prescribe any analgesics and he simply says the applicant needs to have some exercise.
The applicant says a disease can also be a frank injury. Dr Ashaia comments on the collapse of the subchondral tissue only on the right side and that has been a sudden change as a result of what happened that day. The applicant complained of pain he had not complained of before. There is a change in pathology as a result of the incident.
The applicant complains of pain on 26 February 2024 in a way he has not before. There is no question about the applicant’s credit. The CCTV footage shows the applicant’s response to whatever was happening during that bus ride. Notwithstanding a visit to the doctor the applicant continued to work doing that job.
That would entitle the applicant to a continuation of benefits.

FINDINGS AND REASONS

Did the applicant sustain a right hip condition on 26 February 2024

There is no dispute the applicant suffers with pre-existing bilateral avascular necrosis.
Whether the incident on 26 February 2024 while the applicant was working aggravated his pre-existing right sided avascular necrosis condition is in dispute.
The applicant submits and I accept that there can be a disease and also a frank injury.[4] The collapse of the right chondral tissue noted by Dr Ashaia supports there having been a sudden change in pathology as a result of the incident in the applicant’s submission.
[4] Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310.
While I accept that submission, I determine on a consideration of the whole of the evidence that there has been an aggravation on 26 February 2024 of a pre-existing but undocumented right sided avascular necrosis condition.
‘Injury’ in s 4 of the 1987 Act includes a disease injury which means at s 4(b)(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.
The applicant bears the onus of proving on the balance of probabilities that his right hip condition was aggravated in the course of employment on 26 February 2024 and that the employment was the main contributing factor to the aggravation.
Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain.[5] A commonsense evaluation of the causal chain in this case supports a finding that the applicant aggravated his right hip disease on 26 February 2024 while driving the bus.
[5] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
The aggravation of a disease occurs where “the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms.”[6]
[6] Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71 at [66]; Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626.
In Cant v Catholic Schools Office [2000] 2000 NSWCC 37 Burke J said:
“…irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.”[7]
[7] Cant v Catholic Schools Office [2000] NSWCC 37; (2000) 20 NSWCCR 88 at [17].
The evidence supports the finding that the incident on 26 February 2024 resulted in an increase or intensification of symptoms in the applicant’s right hip.
The applicant’s statement evidence is supported by Dr Talab’s certificate on
27 February 2024 diagnosing soft tissue injury to the right hip and Dr Zaki’s record on
30 March 2024 of the applicant feeling immediate right hip pain on 26 February 2024. The CCTV footage shows the applicant placing his hands on his back, pulling on his right leg and stretching his back at the time of the incident.
Dr Dias and Dr Mastroianni agree that the applicant’s right hip avascular necrosis was aggravated and exacerbated by the incident described by the applicant as driving over a pothole on 26 February 2024.
There is some support from Dr Walker, although I accept the respondent’s submission that his opinion appears equivocal.
Dr Wallace is of the opinion that driving over a pothole is not consistent with causing any significant hip pathology and this is not disputed in the applicant’s evidence.
Dr Wallace is also of the opinion that there was no work-related aggravation, acceleration or recurrence of a pre-existing condition by driving over a pothole in a bus.
Having viewed the CCTV footage Dr Wallace opined that it was not possible that the minor side to side movement shown on 26 February 2024 caused any right hip joint injury while the applicant was seated in a bus driver’s seat fitted with suspension driving over a pothole.
I do not accept Dr Wallace’s opinion for the following reasons.
The applicant’s statement evidence is that he felt a jerk and jarring in the driver’s seat when the suspension went down and the front wheel of the bus struck a pothole. The CCTV footage shows the applicant twice moving from side to side and passengers being jolted at the same time.
I do not accept Dr Wallace’s conclusion that there is a minor or almost imperceptible movement from side to side shown on the CCTV footage.
The basis for the doctor’s conclusion that being seated in a non-weight bearing position with or without suspension makes it unlikely the applicant would have suffered trauma is unclear and I am not able to accept that conclusion.
The applicant’s statement evidence is that he noticed before the incident that there was a problem with the suspension in the bus he was driving on 26 February 2024. It was not stable and for no reason it would go down and up. He describes noticing the bus was quite bumpy when the suspension went down.
He advised the respondent’s duty officer and called the radio room to report the problem with the suspension before returning to the Tempe depot that evening.
The applicant’s evidence that there were problems with the suspension of the bus in the driver’s seat on that day is not challenged.
Dr Dias, Dr Mastroianni and Dr Walker did not have the benefit of viewing the CCTV footage of the incident on 26 February 2024. Their opinions were formed however on the basis of the applicant’s consistent description of what occurred on 26 February 2024, which in my view is consistent with what is shown on the CCTV footage.
The applicant concedes it is not possible to identify the pothole from the camera angles in the CCTV footage. The CCTV footage shows the bus travelling over a rough surface and it shows the particular incident on 26 February 2024 that the applicant complains of.
Whether the side to side movement, jolt or jarring that occurred was caused by a pothole or by the rough road surface does not require determination. As in Chubb a consideration of the entirety of the evidence provides a satisfactory basis to find that what occurred on the bus on 26 February 2024 caused the applicant’s injury.
I do not accept the respondent’s submission that what occurred on 26 February 2024 was a continuation or manifestation of a previous injury to the right hip which had been producing pain before the incident that day. The complaints made by the applicant to his general practitioner before the injury were of back and at times also right leg pain. There is no evidence that these complaints arose from a right hip avascular necrosis condition.
I am satisfied to place weight on the applicant’s evidence and Dr Dias’ report on this issue as there is no evidence of previous complaints of right hip pain or other symptoms of right hip avascular necrosis prior to the incident on 26 February 2024.
I am not required to determine whether the use of Prednisone in 2019 and 2020 may have caused or contributed to the avascular necrosis disease as its causation is not in issue.
I do not accept the applicant would have noted the onset of right hip symptoms at about the same time and the same stage of his life had he not been at work or employed by the respondent as I find the applicant’s right hip condition was aggravated by the incident on that day.
I accept the applicant’s evidence that there were problems with the suspension of the bus on 26 February 2024, he experienced a jolt or jarring as he was driving the bus, he felt immediate pain and his pre-existing right hip condition became symptomatic as a result.
There is no evidence of competing work or non-work causal factors[8] and I accept Dr Dias’ opinion that employment is the main contributing factor to the aggravation of the applicant’s right hip avascular necrosis condition.
[8] AV v AW [2020] NSWWCCPD 9.
I am persuaded on the basis of the whole of the evidence that on the balance of probabilities the applicant sustained an aggravation of his right avascular necrosis condition injury as a result of the incident on 26 February 2024.[9]

Did the applicant sustain a lumbar spine condition on 26 February 2024
[9] Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [55] and [63].

The applicant pleads his right hip and lumbar spine injuries as aggravation injuries with deemed date of injury 26 February 2024.
The evidence supports a finding that the applicant sustained a lumbar spine injury as the result of a personal or frank injury on 26 February 2024.
As discussed by President Judge Phillips in Chubb there is no necessarily binding effect of a pleading in this jurisdiction. The Commission has a statutory mandate to resolve the real issues in dispute without regard to technicalities or legal forms.[10] The real issue is whether the applicant sustained a lumbar spine injury on 26 February 2024 based on a dispassionate examination of the evidence.
[10] Chubb Fire and Security Pty Ltd v Trad [2023] NSWPICPD 79 at [70].
Section 4(a) of the 1987 Act defines ‘injury’ as a personal injury arising out of or in the course of employment.
A personal injury is a sudden identifiable pathological change.[11] The pathology may be as simple as a soft tissue injury.[12]
[11] North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [81].
[12] North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [71].
The applicant’s evidence is that he immediately felt pain to his right hip and back on
26 February 2024. On the same day Dr Talab refers to musculoligamentous lumbar strain and the applicant experiencing the onset of lower back pain while driving the bus and hitting a pothole. The incident notes of 27 February 2024 include sharp pain to the applicant’s back and right leg.
In Dr Dias’ opinion the applicant has chronic right-sided lumbar spine pain, stiffness and discomfort secondary to an acute muscular ligamentous strain, and all of his lumbar spine symptoms are attributable to the incident on 26 February 2024.
Dr Wallace did not examine the applicant’s lumbar spine and in his supplementary report considers the applicant suffered no injury at his lumbar spine or right hip as a result of his employment with the respondent.
As the applicant was driving a bus on 26 February 2024 in the course of his employment, the temporal element of s 4(a) is satisfied.[13]
[13] Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324; (2009) 7 DCR 75.
Section 9A(3) of the 1987 Act states that employment is not to be regarded as a substantial contributing factor to an injury merely because it arose out of or in the course of employment, or arose both out of and in the course of the employment.
The applicant must also prove the employment was a substantial contributing factor to the injury in accordance with s 9A of the 1987 Act.
Whether the employment was a substantial contributing factor is not purely a medical question and requires an evaluative process decided on the evidence overall, including consideration of the factors described in s 9A(2).[14]
[14] E-Dry Pty Ltd v Ker [2017] NSWWCCPD 26.
The examples of matters to be taken into account in s 9A(2) include the time and place of the injury, the nature of the work performed and the particular tasks of that work, the duration of employment, the probability that the injury or similar injury would have happened anyway at about the same time or at the same stage of the worker’s life, if he had not been at work or had not worked in that employment, his state of health before the injury and his lifestyle and activities outside the workplace.
The respondent submits the applicant does not deal with his pre-existing complaints of back pain in his statement evidence or in the medical evidence on which he relies, aside from
Dr Mastroianni’s reports. That evidence is then unreliable in the respondent’s submission as it proceeds on an incorrect assumption that there were no pre-existing complaints of back pain.

I do not accept the submission that the applicant’s evidence and the medical evidence on which he relies is unreliable.
The applicant says in his statement “I had not had this pain in the past.”[15] He also says following the incident on 26 February 2024 he had trouble walking and sitting down for long periods because of the pain, and “I did not have these problems before my work injury.”[16]
[15] ARD page 2.
[16] ARD page 3.
There is no evidence of the applicant having previously had problems with walking and sitting down for long periods. He was working as a full time bus driver until the incident on
26 February 2024 which involved sitting for prolonged periods. His evidence is that he was playing cricket and badminton up until that time.
There is evidence in the clinical records that the applicant complained of lower back pain prior to the incident on 26 February 2024 as the respondent submits.
The records of the Minto Mall Medical Centre note lower back pain on 18 April 2017, back and neck pain on 26 June 2017, lower back pain on 30 May 2019, back pain on
8 September 2020 and lower back pain on 8 February 2024.
Dr Dogra prescribed back exercises and Voltaren gel on 18 April 2017, Mobic for back and neck pain on 26 June 2017, Celebrex on 30 May 2019, the applicant was using Voltaren gel, Panadol and heat on 8 September 2020 for his back injured while doing gardening, and on
8 February 2024 Dr Dogra notes the applicant was to exercise and needed physio for right back and leg pain.
Given the nature of the previous back pain complaints over a number of years and the treatment recommended by the doctor, I do not accept that the applicant’s treating doctors and Dr Dias proceeded on an incorrect basis by not referring to the applicant’s earlier complaints of back pain.
Dr Dias does not take a history of back pain. He did have the IMMEX Wetherill Park clinical records including Dr Talab’s note on 27 February 2024 of the onset of lower back pain while driving when the bus hit a pothole, and the physiotherapist’s note of right lower back soft tissue injury on 29 February 2024.
Dr Dias notes there was no documented pre-existing injuries or conditions affecting the applicant’s hips or lower back prior to 26 February 2024, and he had been pain free and asymptomatic in these regions until then. As a result of the incident Dr Dias concludes the applicant sustained a soft tissue injury to his right hip and lumbar spine.
There is no evidence that the applicant suffered a soft tissue injury to his lumbar spine prior the incident on 26 February 2024.
The applicant complained of back pain to his general practitioner on five occasions from 2017 and was prescribed Mobic, Celebrex and Panadol as well as Voltaren gel on one occasion each over a six or more year period.
The most recent complaint of back pain was made to Dr Dogra on 8 February 2024 when no pain killing medication was prescribed and the applicant was advised to do exercises. The applicant did not appear to require any time away from work.
I do not accept the respondent’s submission that the back pain the applicant experienced on 26 February 2024 was a continuation of pre-existing pain.
The CCTV footage shows the applicant in some discomfort about one hour prior to the incident on 26 February 2024 although the exact source of the discomfort is perhaps unclear.
The applicant is seen standing in the door of the bus, he lifts, rotates and stretches his right leg, reaches behind to his right hip or lower back with his left arm and twists, he rubs his right leg and lower back/hip area and lifts and rotates his right leg three times.
Immediately after the incident complained of the applicant remains seated while driving the bus. He places both hands on his lower back, pulls on his right leg, sits back and rises in his seat, places his right hand on his right lower back and places his hands behind his neck to stretch.
I note there is no CCTV footage of the applicant in a standing position following the incident that may perhaps have allowed a closer comparison of the applicant’s movements.
I am unable to accept the respondent’s submission that the CCTV footage shows the applicant is concerned about his back before the incident, that the movements are similar to those he makes after the incident, and that as there is no change in the way he is acting before and after the incident and work simply provided the occasion when the lumbar spine condition manifested itself.
I note that if I am wrong in determining that the applicant did not have a lumbar spine injury or condition prior to the incident, the evidence supports that any such injury or condition was in any event aggravated by the incident complained of on 26 February 2024.
The CCTV footage in my view makes clear that the employment was a substantial contributing factor to the applicant’s lumbar spine injury.
Dr Mastroianni does include a history of back pain in his report. He notes the claim form referring to musculoligamentous muscle strain/mild trochanteric bursitis/bilateral avascular necrosis while driving a bus and hitting a pothole hard on 26 February 2024.
The doctor notes the Advance Liverpool Medical Centre records that include persistent lower back pain, and the records of the Minto Mall Medical Centre that include references to previous back pain in September 2020 and February 2024 referred to above.
Dr Mastroianni was asked to comment on the medical diagnosis causing the applicant’s incapacity for work. This was avascular necrosis of the right hip made symptomatic by the incident in his opinion. The doctor did not diagnose a lumbar spine condition as causing or contributing to the applicant’s inability to work.
I do not accept the respondent’s submission that the applicant’s statement and medical evidence is not reliable as a result of the complaints made of back pain between April 2017 and the incident in February 2024 in all of the circumstances.
Previous complaints of back pain do not exclude a finding that the applicant sustained a lumbar spine injury on 26 February 2024.
I accept the opinion of Dr Dias that the applicant sustained a soft tissue injury to his lumbar spine on 26 February 2024 and the employment was a substantial contributing factor to the injury.

Is the applicant entitled to weekly benefits compensation and medical expenses

The applicant claims weekly benefits compensation from 10 July 2024 to date and continuing pursuant to s 37 of the 1987 Act at agreed PIAWE of $1,878.02.
I have found the applicant sustained injuries to his right hip and lumbar spine on
[17] Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 at [64].
26 February 2024. Whether incapacity results from an injury or the aggravation of a disease is a question of fact to be determined on the basis of the evidence, including where applicable expert opinions.[17]
Dr Wallace’s opinion of 18 June 2024 is that the applicant was incapacitated for work as a bus driver, although in his opinion this was due to a non-work related right hip condition.
Dr Dias’ opinion of 28 August 2024 is that the applicant essentially remains unfit for any suitable gainful employment on the open labour market as a result of his persistent symptoms and disabilities associated with his right hip and lumbar spine conditions.
The applicant’s statement evidence is that he ceased work on or about 11 July 2024 and has not returned to work since.
The respondent makes the submission that there is no reasonable explanation as to why the applicant was able to work on suitable duties until that date and has not returned to work since.
I accept the respondent’s submission that it is not safe to draw an inference that the applicant has not been able to work from 10 July 2024 based on the medical evidence.
Relying on Dr Zaki’s Certificates of Capacity, the applicant had current work capacity between 7 July 2024 and 29 September 2024 for four hours a day and five days a week, or 20 hours per week, with restrictions including nil bus driving.
From 30 September 2024 to 8 October 2024 Dr Zaki certified the applicant as having no work capacity.
From 9 October 2024 to 23 October 2024 Dr Zaki certified the applicant as having capacity to work 20 hours per week with restrictions.
From 24 October 2024 to 13 December 2024 and from 9 January 2025 to 29 January 2025 the applicant is certified by Dr Zaki as having no current work capacity due to persistent pain.
In accordance with s 37(3) and cl 8 of Schedule 3 of the 1987 Act, while the applicant was certified as having current work capacity the weekly payment of compensation to which he is entitled is 80% of PIAWE as indexed less his current weekly earnings. ‘Current weekly earnings’ means the weekly amount the worker is able to earn in suitable employment in accordance with Dr Zaki’s certificates of 20 hours per week.
No submissions were made on the appropriate amount the applicant is able to earn with a current work capacity of 20 hours per week. The respondent’s Payroll Summary provided with ALAD 1 includes the hourly award rate of $32.73 and I adopt that rate.
There will be an order that the respondent pay weekly benefits compensation to the applicant for the period 10 July 2024 to date and continuing at the PIAWE rate of $1,878.02 subject to indexation, pursuant to s 37 of the 1987 Act, less the amount he was able to earn for 20 hours per week in the periods 10 July 2023 to 29 September 2024 and 9 October 2024 to
23 October 2024 at the hourly rate of $32.73.

Is the applicant entitled to payment of medical expenses as a result of the injury

Under s 60 of the 1987 Act if as a result of injury it is reasonably necessary that any medical or related treatment or hospital treatment be given, the worker’s employer is liable to pay for the cost of that treatment or service.
The respondent is to pay the applicant’s past medical, hospital or related expenses in the amount of $1,223.45 including two consultations with Dr Ashaia and the MRI costs of
23 September 2024 on production of accounts, receipts and Medicare Notice of Charge.

There will be a general order that the respondent pay the applicant’s reasonably necessary future medical, hospital or related expenses as a result of the aggravation of his right hip disease and lumbar spine injury on 26 February 2024.

SUMMARY

The applicant sustained an aggravation of his right hip disease in the course of his employment with the respondent on 26 February 2024 and the employment was the main contributing factor to the aggravation pursuant to s 4(b)(ii) of the 1987 Act.

The applicant sustained a lumbar spine injury in the course of his employment with the respondent on 26 February 2024 pursuant to s 4(a) of the 1987 Act and the employment was a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act.
The respondent is to pay the applicant weekly compensation at the PIAWE rate of $1,878.02 subject to indexation as follows:
(a)    10 July 2024 to 29 September 2024 at $1,878.02 x 80%, or $1,502.42, less current work capacity of 20 hours per week at $32.73 per hour or $654.60, pursuant to s 37(3) of the 1987 Act;
(b)    30 September 2024 to 8 October 2024 at $1,878.02 x 1.0198, or $1,915.20 x 80%, being $1,532.16 pursuant to s 37(1) of the 1987 Act;
(c)    9 October 2024 to 23 October 2024 at $1,878.02 x 1.0198, or $1,915.20 x 80%, being $1,532.16, less current work capacity of 20 hours per week at $32.73 or $654.60, pursuant to s 37(3) of the 1987 Act, and
(d)    24 October 2024 to date and continuing at $1,878.02 x 1.0198, or $1,915.20 x 80%, being $1,532.16, pursuant to s 37(1) of the 1987 Act.

The parties have 14 days liberty to apply with respect to the calculation of indexation of the weekly compensation amount referred to above.
The respondent is to pay the applicant’s past medical, hospital or related expenses in the amount of $1,223.45 including two consultations with Dr Ashaia and the MRI costs of
23 September 2024 on production of accounts, receipts and Medicare Notice of Charge.

The applicant is entitled to payment of reasonably necessary future medical, hospital or related expenses arising from the aggravation of his right hip disease and lumbar spine injury sustained on 26 February 2024 pursuant to s 60 of the 1987 Act.

[2025] NSWPIC 38

5 February 2025