Wade v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Wade v State of New South Wales (NSW Police Force) [2024] NSWPIC 661
APPLICANT:	Carl Wade
RESPONDENT:	State of New South Wales (NSW Police Force)
MEMBER:	Parnel McAdam
DATE OF DECISION:	2 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation; applicant alleged he suffered injury to back and hips due to nature and conditions of employment; worked as a general duties police officer and then in role as defensive tactics trainer; regularly thrown and subject to police handling techniques; lack of contemporaneous complaints to medical practitioners; competing medical opinions; Held – applicant suffered an injury to lower back and hips; matter referred for assessment of permanent impairment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury to his lumbar spine and both hips arising out of or in the course of employment with the respondent, to which employment was a substantial contributing factor. 2. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: a. Date of injury: 3 August 2023 (deemed) b. Body systems/parts: i. lumbar spine ii. left lower extremity (hip) iii. right lower extremity (hip) c. Method of assessment: whole person impairment. 3. The documents to be referred to the Medical Assessor are: a. the Application to Resolve a Dispute and attached documents; b. the Reply and attached documents; c. an Application to Admit Late Documents lodged by the respondent, attaching a supplementary report of Dr Bentivoglio, and d. an Application to Admit Late Documents lodged by the applicant, attaching a supplementary report of Dr Porteous and letter of instruction.

STATEMENT OF REASONS

BACKGROUND

Mr Wade (the applicant) worked for the NSW Police Force (the respondent) from the age of about 24. He began his career in an administrative civilian role, before attesting and joining as a general duties officer. As is commonly the case with police officers, this role often involved heavy and physical duties, including detaining offenders and foot pursuits. As is required, he wore a heavy belt contain various relevant items including a pistol. This was, after a period, transitioned to a load bearing vest.
After a period of working in general duties, Mr Wade transferred to a unit working as a full-time weapons and defensive tactics trainer. He worked for over 13 years in this unit, providing training for police officers and other participants in a variety of ways, including defensive tactics.
Mr Wade was eventually medically discharged from the NSW Police Force due to a psychological injury. That issue is not before me. The present dispute concerns an allegation of injury to the lumbar spine and hips, caused by the nature and conditions of his employment.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered an injury to his lumbar spine and hips within the meaning of s 4 of the Workers Compensation Act 1987 (1987 Act), and
(b) whether employment was a substantial contributing factor those injuries.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter proceeded to conciliation/arbitration on 20 November 2024. The applicant was represented by Mr Hammond of counsel, instructed by Bourke Legal. The respondent was represented by Ms Goodman of counsel, instructed by Turks Legal.
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.
During the course of the proceedings at the Personal Injury Commission (Commission), I observed Mr Wade to be open and forthright. Following the resolution of submissions I noticed that he was quiet with his head slumped forward. The nature of proceedings in the Commission can, at times, be confronting and overwhelming for applicants, and given Mr Wade’s psychological injury, it is not surprising that he felt this way following the submissions.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (Application) and attached documents;
(b)    Reply and attached documents;
(c)    an Application to Admit Late Documents lodged by the respondent, attaching a supplementary report of Dr Bentivoglio, and
(d)    an Application to Admit Late Documents lodged by the applicant, attaching a supplementary report of Dr Porteous and letter of instruction.
No objection was made to the admission of any material and accordingly those late documents were admitted during the conciliation/arbitration.
The evidence in this case is fairly limited to competing independent medical opinions, the applicant’s statement, and some clinical records (which exist to prove a negative). I will briefly discuss the relevant evidence here in general terms and refer to the more pertinent parts of that evidence below.

The applicant’s statement

Mr Wade has provided a most comprehensive statement that sets out his employment history with the NSW Police Force (which I have briefly summarised above), the onset of pain in his back and hips, and the nature of his duties. I have found particularly helpful the description and visual demonstrations of the type of actions performed in defensive tactics.
The respondent did not contest the veracity of the statement or the general truthfulness of Mr Wade.

The clinical notes

Attached to the Application are clinical notes produced from Penrith Medical Centre. The purpose of these notes is, as I have said, to prove a negative – that is that Mr Wade never made any complaints to his doctors about the pain he alleges he was feeling in his back and hips. The respondent also referred to the existence of clinical notes where the applicant did make complaints.

Reports of Dr Porteous

The applicant relies on two independent medical expert reports of Dr Porteous, and occupational physician. The first is attached to the Application and is dated 31 July 2023. Dr Porteous takes a history of general duties work, and then moving to the weapons and training unit. This was described as “very physical work”. He describes initial intermittent back pain which would settle after taking pain relief, which developed to constant pain from late 2020 to early 2021. With respect to the hips, Dr Porteous records the onset of bilateral hip pain 10 years ago (around 2014), occurring with physical activity as well as to do with the wearing of the “appointments belt”. Other injuries are discussed but are not before me in the present dispute.
Dr Porteous provides the following diagnosis of the lumbar spine and hips:
“In the lumbar spine, in my opinion, the nature and conditions of his work have resulted in aggravation or exacerbation of aging related degenerative change in the lumbar spine.
In my opinion, in both hips the nature and condition of his employment have resulted in aggravation or exacerbation of pre-existing degenerative change in both hips.”
Dr Porteous expands upon his opinion with further reasoning in his updated report dated 16 October 2024. He provides:
“The very physical awkward forces regularly applied to these joints repeatedly during those duties and activities described in those pages show very clearly he was ‘exposed’ are known to cause injury to those joints and on the balance of probabilities have more likely than not aggravated or accelerated or exacerbated or deteriorated any degenerative condition (whether age-related or not).”
Dr Porteous also explains why he disagrees with the opinion of Dr Bentivoglio:
“With regards to Dr Bentivoglio’s acknowledgement that there is degeneration in the hips, I agree that is present. That has more likely than not been aggravated or accelerated or exacerbated or deteriorated by the known hip and lumbar back injurious events and forces in his work discussed in my report. For these reasons I disagree with Dr Bentivoglio’s conclusions expressed in his answer to Q13.”

Reports of Dr Bentivoglio

Like Dr Porteous, Dr Bentivoglio, who is an orthopaedic surgeon, provides two reports. The first is dated 19 October 2023. Dr Bentivoglio takes the following history in relation to the hips:
“Mr Wade has not had any specific injuries to his hips. He felt approximately 8-10 years ago he started experiencing symptoms present in both hips, with it being worse on the left hand side. He denied having problems with his hips prior to that time. He felt the work he was doing at that time was firearms and teaching defensive tactics. He would often be thrown off his feet onto his back and hip regions. He eventually saw his local doctor and had MRI scans taken of his hips in recent times. No treatment has been instituted as a result of these investigations.”
He takes a more limited history in relation to the back:
“There was no specific incident. Mr Wade felt that as a result of multiple falls onto his back when teaching defensive tactics that he had injuries to his back.”
Under the heading “diagnosis and opinion” he provides:
“Mr Wade’s investigations indicate that he does not have any injury to his back. The minimal abnormality seen on his MRI scan taken of his lumbar spine was normal for his age. Indeed, there would be very few people of his age who would have an MRI scan as good as his.”
In relation to the hips, he records:
“Mr Wade has had plain x-rays of his hips which indicates he does have some early degenerative changes involving his hips. I would not consider the amount of degenerative changes seen on the investigations is significant at this stage. Possibly the early degenerative changes have been caused by him falling multiple times onto his hips.”
Dr Bentivoglio goes on to answer relevant questions about causation, concluding that there has been no aggravation injury and employment was not a substantial contributing factor to any injury.
Dr Bentivoglio’s supplementary report dated 27 September 2024 is consistent with his opinion above, with an ultimate conclusion that “I would not consider nature and conditions of his employment to be even be a contributing factor to any disability he may be experiencing in his hips and back”.

Submissions

Both parties made oral submissions at the hearing, which was recorded. I do not intend to repeat those submissions in full but will provide a brief summary below.

Applicant’s submissions

The applicant commenced by submitting that policing is a physical job, and the first piece of evidence in that regard is the applicant’s statement. It was accepted that Mr Wade had not contemporaneous complaint to any doctor’s but was submitted that I would accept the applicant’s statement. The nature of work as a general duties officer and also in tactical weapons training is arduous. It was acknowledged that Mr Wade’s symptoms are at the milder end of the spectrum, and the cause of his cessation of work with the respondent was not his physical condition, but rather the post-traumatic stress disorder from which he suffers.
In respect of the lack of complaints made to treating doctors, the applicant submitted that the symptoms Mr Wade was experiencing aren’t the type of complaints one would take to a doctor. In respect of the radiological evidence, it was acknowledged that they were taken after employment had ceased but they are still relevant evidence.
The applicant then referred to the reports of Dr Porteous and the history taken therein. It was noted that the updated report goes into more detail about the nature of forces exerted.
In respect of the respondent’s case, it was submitted that the lack of contemporaneous report is not a silver bullet, as I have the applicant’s unchallenged evidence and if I read the statement, I would be satisfied that he is a truthful witness. Dr Bentivoglio’s report takes a fairly brief history of the hips and a brief history in respect o the back. He also asks himself the wrong question. In terms of the supplementary report, Dr Bentivoglio does not comment on the statement of Mr Wade, and his answers in any event do not go to the relevant questions before me.

Respondent’s submissions

The respondent submits that the first thing to note is that there were no contemporaneous complaints made. It is not just the lack of complaints but also the fact that the applicant did complain of a number of other problems. The respondent referred to other injuries in the material that were the subject of specific complaints which did in fact result in payment of compensation. It was submitted that the applicant knows when he has an injury, he reports it to his doctor, and it appears in the clinical notes, in contrast with the present claim which is mainly supported by a statement made many years after the event.
The statement is not contested but must be read in the context of despite the applicant’s experience with injuries and workers compensation, there are no complaints made.
The documents that Dr Porteous have before him are important. He has an X-ray of the right hip. The X-ray refers to osteoarthritis of both hips, but in fact there was no x-ray of the left hip. The medical practitioners have not really differentiated between the hips.
In respect of the report of Dr Bentivoglio, it was submitted that he takes the relevant history, and then concludes that as there have been no complaints, he has not sustained an injury to his back. He is saying that there is not pathology attributable to any injury at work.
It was also submitted that Dr Bentivoglio’s opinion should be given more weight due to his expertise, as he is an orthopaedic spinal surgeon, compared with Dr Porteous who is an occupational physician. In comparing the two reports, I have on the one hand an occupational physician with no orthopaedic qualifications, without really explaining his opinion to any extent, compared with an orthopaedic surgeon who has not only looked at the investigations, but also the clinical notes and confirmed there was no complaint in respect of the body parts claimed.
The respondent then went through the clinical notes noting the various complaints and comments being made in relation to other injuries, incidents and complaints made to his general practitioner. It was submitted that it would have been easy enough to talk about his problems in his back and hips, but he did not. On that basis I would accept the opinion of Dr Bentivoglio that there has been no injury and there would be an award entered for the respondent.

Applicant in response

In response to the respondent’s submission about the expertise of the independent medical expertise, it was submitted that might be relevant if the case concerned multiple disc ruptures or for spinal fusion. Here we are dealing with the nature and conditions of work, an occupational injury involving heavy duties. Expertise is either a neutral factor or an occupational physician has better expertise.
In respect of the other injuries, they were all frank incidents, of the type where one would report them through the usual channels. Again, this factor is neutral.

DISCUSSION AND FINDINGS

This claim concerns multiple body parts; both hips and the lumbar spine. The nature of the duties alleged to have caused the injuries is consistent for both, although some may have contributed more to the lumbar spine condition than the hip condition. The issues in dispute do not greatly differentiate between the injuries as alleged, and in particular between the right and left hips (although there is an issue as to whether both hips have actually been the subject of radiology). Both are alleged to have been caused by the nature and conditions of Mr Wade’s employment, although the onset of pain differs slightly. Given the presentation of the case I will deal with the lumbar spine first and then the hips.
There is no dispute about the nature of Mr Wade’s duties. It is clear, based on the comprehensive history he gives in his statement as well as the history recorded by the independent medical experts, that it is heavy work. There are a number of factors Mr Wade alleges contributed to his injuries. The first of those factors occurred in the course of his employment as a general duties officer. These duties include arrests of violent persons, carrying of bodies, conducting searches and the like. These are the kinds of duties one would normally expect a police officer to be exposed to from time to time. They come with the nature of the job and often require the use of the body in a way that is likely to lead to pain, if not injury.
In addition to the above, the applicant discusses and refers to the use of a heavy belt, which was later moved to body worn armour. The heavy belt put pressure on his hips, and would often snag on things including exiting his vehicle. The Police Force then transitioned to the use of a load bearing vest. Mr Wade states that this “changed my posture and placed extra strain on my lower back and hips”. I would note that in considering Mr Wade’s statement, I have treated commentary such as this with caution. This approaches evidence that only a medical expert is required to given. Mr Wade’s experience of pain and symptoms is subjective and within his scope to report on. The mechanism of that pain, and how it affected his spine and hips mechanically, is a matter for medical expertise.
Mr Wade goes on to report that his back pain “starts as early as 2006”. This is slightly earlier than that recorded by the medical experts, who recorded a history of “about ten years prior to stopping work” (Dr Porteous), which would be about 2013. He describes that pain, including the early awareness of it:
“I didn’t have regular, ongoing, unceasing and debilitating back pain, but back as far as 2006 I can remember that I really struggled to do a day at work where I had to be on my feet walking around for the whole day. This influenced the jobs that I took (or didn’t take) ever since.”
Mr Wade’s report of the onset of hip pain in his statement is consistent with the medical experts:
“I first started getting regular daily hip pain around 10 years ago, which I notice happening more and more when I was ‘training the trainer’ and when carrying out my own running, jumping, flipping, scaling fences, jumping down from fences or walls, falling and grappling. The was compounded by wearing the appointments belt and vests.”
The other factor Mr Wade suggests was causative of both his back and hip pain is his time as a Defensive Tactics Trainer. Mr Wade’s statement sets out the kind of activities he would perform in this role in detail with quite demonstrative pictures. He states:
“As a Defensive Tactics trainer, I would fall on my lower back and hips 50 – 80 times a day. Even falling carefully and expecting the fall, and having done it literally thousands of times before, it was still pretty common to have 1 or 2 very painful falls onto the hip each and every day when training.”
He also describes “multiple techniques that would place stress and pressure on the hip joint” and “many of the techniques also forced me to land and fall heavily on my low back”.
I am aware that Mr Wade did not report any of the pain he was experiencing to his general practitioner. During the course of his employment with the respondent, he did not undergo any specific treatment to his back or hips. That is one factor I must weight in determining whether he has suffered an injury to which his employment is a substantial contributing factor.

Mr Wade explains the difference between feeling sore, on a regular a basis and what he would consider to be an “injury”:
“It was seen at times within the NSWPF that there is a difference between an injury opposed to a hurt/pain. While you were still a little sore and had aches from the previous shift you would still attend the next day, either because you didn’t want to let your team mates down or also not to be seen as weak. At times it would feel that your body couldn’t catch up.”
This goes some way to explaining the lack of clinical reporting of the pains Mr Wade was experiencing in both his back and hips. The respondent submitted that Mr Wade had in fact reported other incidents to his general practitioner, including to the knee and cervical spine. I have reviewed those records in the clinical notes and specifically inquired of them during the hearing. The reports of physical pain which resulted in attendances on his general practitioner and a notice of injury/claim being made, including payments of compensation, were all in the nature of “frank” incidents. Some examples are:
(a)    an incident on 4 June 2009, specifically reported, involving a motor vehicle accident including pain in the neck;
(b)    an incident on 3 September 2009, specifically reported, involving a fall onto the right knee;
(c)    a clinical note on 12 May 2011, involving an injury to the left buttock on a metal guard;
(d)    an incident on 5 September 2012, specifically reported, again involving a fall onto the right knee, and
(e)    an incident on 12 April 2021, involving hyperextension of the left arm whilst participating in an external training course.
The above is not an exhaustive list but represents reports I found throughout the evidence before me. What is consistent across all of these incidents, reported in accordance with police procedure or otherwise appearing in the clinical notes, is that they are specific incidents or accidents that involved acute trauma on the day of the incident. This can be distinguished from the type of claim Mr Wade currently brings involving both his back and hips, which are alleged to have been caused by repetitive nature and conditions of his employment.
This adequately explains the lack of reporting of pain in both the lumbar spine and hips in the clinical notes as well as the absence of specific reports made in the Police Force system.
In terms of how the mechanism of injury explained by Mr Wade translated to the injury as claimed, Dr Porteous takes a history particularly focussing on the duties Mr Wade performed in training other officers:
“The training could be training operational police officers and annual mandatory testing or teaching, train the trainers courses or training instructors on courses and doing one week instructor refresher courses or doing specialised courses often with very physical work, sometimes doing role play and being thrown or throwing often in full kit and sometimes wearing the full large almost inflated type protective equipment.”
This is contrasted with the history taken by Dr Bentivoglio:
“There was no specific incident. Mr Wade felt that as a result of multiple falls onto his back when teaching defensive tactics that he had injuries to his back.”
In respect of the injury to the lumbar spine, Dr Porteous records:
“Mr Wade said that about ten years prior to stopping work, he had started to get lumbar back pain with the physical activity required. His job involved at times wrestling, pushing, pulling, holding, twisting, grappling with often awkward force in undertaking the training. There were often sustained awkward positions when demonstrating undertaking training and often in full heavy equipment, including the appointment belt and other equipment associated with weapons training.
With the physical activity, he would get intermittent back pain which would settle after a while with taking pain relief.
He then started to notice constant upper back pain from late 2020 or early 2021 on.”
He goes on to provide the following diagnosis:
“In the lumbar spine, in my opinion, the nature and conditions of his work have resulted in aggravation or exacerbation of aging related degenerative change in the lumbar spine.”
Whilst Dr Bentivoglio provides the following diagnosis and opinion:
“Mr Wade’s investigations indicate that he does not have any injury to his back. The minimal abnormality seen on his MRI scan taken of his lumbar spine was normal for his age. Indeed, there would be very few people of his age who would have an MRI scan as good as his.”
Dr Bentivoglio’s diagnosis is:
“The diagnosis is at most musculoligamentous strain of his lumbar spine. The diagnosis is made on the history provided by Mr Wade, physical examination, as well as an essentially normal MRI scan taken of his lumbar spine.”
In his supplementary report, Dr Bentivoglio maintains his opinion:
“I viewed his local doctor’s notes and I am aware of results of MRI scans taken of his lumbar spine and an MRI scan taken of hips and I would not consider the conditions of employment as a police officer would account for his lumbar spine or hip complaints and there is no mention of any disability in his local doctor’s notes.”
And goes on to say: “I would not consider the nature and conditions of his employment led to any degenerative changes present in his hips or any disability present in his lumbar spine.”.
On the other hand, Dr Porteous, in his supplementary report, provides:
“The very physical awkward forces regularly applied to these joints repeatedly during those duties and activities described in those pages show very clearly he was ‘exposed’ are known to cause injury to those joints and on the balance of probabilities have more likely than not aggravated or accelerated or exacerbated or deteriorated any degenerative condition (whether age-related or not).”
There are a number of reasons why I would prefer the opinion of Dr Porteous to that of Dr Bentivoglio.
First, it is my view that Dr Porteous has recorded a more thorough history of the kind of duties Mr Wade performed than Dr Bentivoglio. Dr Bentivoglio appears to have been somewhat focussed on the lack of specific incident that led to the current claim, not accepting (in general terms) that the types of duties performed by Mr Wade were heavy and could have led, over time, to the condition he now claims exists in his lumbar spine.
Secondly, Dr Bentivoglio provides a diagnosis of “muscoligamentous strain” in the lumbar spine. It is not clear why he then rejects that as being caused by employment, considering the specific nature of Mr Wade’s duties.
Thirdly, Dr Bentivoglio places significant weight on the radiology and clinical notes. I have dealt with the lack of report in the clinical notes above, and this factor does not weight heavily against Mr Wade because of the nature of his complaints, and the general nature of the Police Force, which requires workers with seemingly minor niggles and pains to “get on with it”.
Fourthly, Dr Bentivoglio opines that the MRI was “essentially normal”. Dr Porteous disagrees with this: “The scan of 31 July 2023 does actually show evidence of degenerative changes.” Whilst not interpreting the report in a medical sense, I do note that the report includes “Mild face joint degenerative changes” at L3/L4 and a conclusion of “Mild disc degeneration at L3/L4.” Dr Bentivoglio appears to have minimised the result of that MRI whilst Dr Porteous suggests it supports his conclusion. Given the other factors set out above, I prefer the weight that Dr Porteous gives to the MRI.
Finally, Dr Porteous specifically goes on to explain how the nature of Mr Wade’s duties have caused the injury to the lumbar spine he now claims. Dr Bentivoglio, on the other hand, answers the incorrect question – it is not whether “the nature of conditions of employment led to any degenerative changes”. It is whether the nature and conditions of employment have aggravated, accelerated, exacerbated or deteriorated degenerative changes.
In terms of the expertise of both medicolegal experts, which was a submission raised by the respondent, I agree with the applicant that this tends to be a neutral factor at worst. The nature of the injuries alleged are not orthopaedic; there has been no surgery performed on Mr Wade and none contemplated. It is not clear why an orthopaedic surgeon would be better placed to comment on those injuries. Dr Porteous, as an occupational physician, is adequately trained to assess Mr Wade, and in some ways would be more qualified to determine whether the nature of Mr Wade’s occupation could have caused the injury that he now claims. This may go some way to explaining why Dr Bentivoglio has placed significant weight on the relatively minor changes shown in the radiology, as his expertise is more concerned with surgical intervention informed by significant changes shown in radiology, compared with Dr Porteous who is more concerned with the nature of the duties Mr Wade undertook.
Accordingly, I am satisfied that Mr Wade has suffered an injury to his lumbar spine to which his employment was a substantial contributing factor. I prefer the opinion of Dr Porteous, which is consistent with the history given by Mr Wade in his statement, and deals with the (admittedly minor) degenerative change seen in the radiology.
The next issue is in respect of the hips. I have dealt with the history given above – the nature and conditions of employment are no different and, on Mr Wade’s case, no less causative of the injury he alleges has occurred in his hips.
Dr Porteous provides the following opinion in respect of the hips:
“Mr Wade said that he started to get anterior lateral bilateral hip pain some ten years ago, occurring with both physical activity of undertaking the train the trainer activity and running, jumping, tripping, falling and grappling and also with wearing of the appointments belt, which weighs 9 kg plus, as well as physically landing heavily and twisting frequently, including doing the defensive tactical exercises.”
His diagnosis of the hips is essentially the same as in the lumbar spine: “In my opinion, in both hips the nature and condition of his employment have resulted in aggravation or exacerbation of pre-existing degenerative change in both hips.”
Dr Bentivoglio records:
“Mr Wade has had plain x-rays of his hips which indicates he does have some early degenerative changes involving his hips. I would not consider the amount of degenerative changes seen on the investigations is significant at this stage. Possibly the early degenerative changes have been caused by him falling multiple times onto his hips.”
His diagnosis is:
“With regard to the hips, possibly some degree of early degenerative change involving both hips. The diagnosis is made on the history provided by Mr Wade, physical examination, as well as plain x-ray findings.”
His explanation of causation is that “I would not consider the multiple minor injuries that he had to his person has caused the early degenerative changes present in his hips.”
Both Dr Porteous’ and Dr Bentivolgio’s supplementary reports have been discussed above. Those reports deal with the lumbar spine and hip conditions concurrently.
Having considered both reports, again I prefer the opinion of Dr Porteous to Dr Bentivoglio. It is my view that Dr Bentivoglio has answered the wrong question in relation to an aggravation type claim. He firstly suggests that “possibly” the early degenerative changes have been caused by him falling onto his hips but then goes on to reject that question. Whilst the applicant must prove his case on the balance of probabilities, and “possible” does not reach “probable”, this goes some way to supporting Mr Wade.
There is the issue of the somewhat confusing X-ray of the hips dated 19 July 2023 (collected on 14 July 2023). The name of the test is described as “xray right hip”. The heading on the report is “XRAY RIGHT HIP”. The clinical history refers to “reduced internal rotation and abduction right hip”. However, the findings record that “There is mild osteoarthritis in both hip joints”, and the conclusion is “mild osteoarthritis in both hip joints”. The respondent suggested that the radiology was addressed only to the right hip.
Dr Porteous reports the X-ray as: “Right hip x-ray, 14 July 2023, shows mild osteoarthritis in both hip joints with joint space narrowing and subchondral sclerosis.” Dr Bentivoglio reports the x-ray as an MRI: “An MRI scan taken of his hip was reported as showing mild degenerative changes involving both hips. This MRI scan was performed in July 2023.”
Both doctors have approached the radiology (noting that it is reported as an X-ray, not an MRI as recorded by Dr Bentivoglio) as including both hips. They have considered it and made informed medical opinions based on it. Unfortunately the clinical records end slightly before the referral for radiology of the hips. I do not think it particular makes a difference to the outcome of this case in any event. However, it is my view that it is likely that the X-ray was of both hips, but was erroneously recorded as being of the right hip only. This would be consistent with Mr Wade’s complaints. On the balance of probabilities, I take the conclusion in the X-ray as being consistent with what was investigated, that is both hips. I would add that I do not think it defeats the applicant’s case that this X-ray was not taken until after he ceased employment.
I am satisfied, on the balance of probabilities, that Mr Wade suffered an injury to both hips in the course of his employment with the respondent, being the aggravation of pre-existing degenerative change. Employment was a substantial contributing factor to the injury.
Neither party made specific submissions going to the relevant factors for consideration in s 9A(2). I have considered those factors in reaching my conclusion as a whole. The major thrust of both set of submission really concerned “the nature of the work performed and the particular tasks of that work”, which was heavy, as I have set out above. That work was performed for a significant period of time, relevant to “the duration of that work”. There have been no other factors identified before me that would have contributed to injury.
For the reasons give above, I am satisfied that Mr Wade suffered an injury to his lumbar spine and both hips arising out of or in the course of employment, to which employment was a substantial contributing factor. As a result of that finding I will make an assessment of permanent impairment to determine the extent, if any, of whole person impairment.

[2024] NSWPIC 661

2 December 2024