Whelan v Stowe Australia Pty Ltd - [2021] NSWPIC 5

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Whelan v Stowe Australia Pty Ltd [2021] NSWPIC 5
APPLICANT:	Liam Whelan
RESPONDENT:	Stowe Australia Pty Ltd
MEMBER:	Kerry Haddock
DATE OF DECISION:	5 March 2021
CATCHWORDS:	WORKERS COMPENSATION- claim for weekly benefits and medical expenses as result of injury to lumbar spine on 24 May 2018; 9 September 2018 (deemed) and 23 January 2019 (deemed); dispute as to injury; and whether notice of injury had been given and claim made in accordance with requirements of section 254 and section 261 of Workplace Injury Management and Workers Compensation Act 1998; pre-existing lumbar spine injury; lack of contemporaneous report of injury and medical evidence; weight to be given to medical evidence; “Sense of actual persuasion” – Nguyen vCosmopolitan Homes [2008] NSWCA 246; Held- award for the respondent as the applicant had not discharged the onus of proving injury.
DETERMINATIONS MADE:	1. That there is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant, Liam Whelan, was employed by the respondent, Stowe Australia Pty Ltd, as a telecommunications technician.
Mr Whelan claims to have sustained an injury to his back on 24 May 2018; in the alternative on 9 September 2018 (deemed date); and in the second alternative on 23 January 2019 (deemed date). The injuries on 9 September 2018 and 23 January 2019 are claimed to have been due to the aggravation, acceleration, exacerbation or deterioration of a disease.
Mr Whelan claims weekly benefits from 10 September 2018 to 12 November 2018; and from 6 February 2019 to date and continuing; and medical expenses of $10,000 pursuant to section 66 of the Workers CompensationAct 1987, (the 1987 Act) being the cost of surgery performed by Dr Brian Hsu in January 2020.
The respondent’s insurer, Employers Mutual NSW Limited (EML) issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 13 March 2019. It disputed liability for CT guided lumbar epidural injection at L5/S1, on the grounds that EML did not have medical evidence to support approval for the treatment.
On 8 April 2019, EML issued a further section 78 notice, disputing liability for the applicant’s claim for compensation for injury on 24 May 2018. Liability was disputed on the grounds that the applicant had failed to give notice of the injury and make a claim within the time prescribed by sections 254 and 261 of the 1998 Act; the injury did not arise out of employment as required by section 4 of the 1987 Act; employment was not a substantial contributing factor to the injury, pursuant to section 9A of the 1987 Act; and employment was not the main contributing factor to the disease injury, pursuant to section 4(b) of the 1987 Act. EML therefore disputed that the applicant was entitled to either weekly benefits or medical expenses.
The applicant’s solicitors requested a review of the decision, which was confirmed by EML by notice issued on 14 June 2019.
The Application to Resolve a Dispute (the Application) was lodged on 10 November 2020. It claims that the applicant sustained injury, being a ruptured disc at L5/S1, on 24 May 2018, when lifting an approximately 100 kilogram steel plate; in the alternative on 9 September 2018 (deemed); and on 23 January 2019 (deemed) as a result of lifting heavy objects, including steel road plates; and being required to drive long distances over rough unsealed terrain.
The respondent lodged its Reply on 2 December 2020. It sought to dispute that the applicant sustained injury to his back arising out of or in the course of his employment, including any injury alleged to have occurred on 24 May 2018; 9 September 2018; and/or 23 January 2019. It submitted that the applicant had not previously made any claim to have sustained injury on either 9 September 2018 or 23 January 2019.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    Whether the applicant gave notice of the injury and made a claim within the time limits required by sections 254 and 261 of the 1998 Act;
(b)    Whether the applicant has sustained injury arising out of or in the course of his employment, pursuant to section 4 of the 1987 Act;
(c)    If the applicant has sustained injury, whether his employment was a substantial contributing factor to the injury, and
(d)    If the applicant has sustained injury pursuant to section 4(b) of the 1987 Act, whether his employment was the main contributing factor to the injury.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing by MODRON platform on 1 February 2021. Mr Ryan Brown of counsel, instructed by Mr Gerard Morson, appeared for the applicant; and Mr Campbell Robertson of counsel, instructed by Ms Fiona King, appeared for the respondent. Ms Amy Corry attended as iCare’s representative. Mr Whelan was present.
The Application was amended by consent to claim weekly benefits compensation from 10 September 2018 to 12 November 2018; and from 6 February 2019.
The respondent conceded that there is no dispute as to the applicant’s capacity for work.
The parties agreed that the applicant’s pre-injury average weekly earnings were $1,830 per week for the first 52 weeks of incapacity, when they would reduce to $1,466 per week. It was agreed that the respondent was to have credit for payments made.
The parties agreed that, if an award is made for the applicant it is appropriate to make a general order for medical expenses pursuant to section 60 of the 1987 Act.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and taken into account in making this determination:

(a)    The Application and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents, dated 28 January 2021 and attached documents, filed by the applicant, and admitted by consent, and

(d) Application to Admit Late Documents dated 29 January 2021, filed by the respondent, and admitted by consent.

Oral Evidence

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

FINDINGS AND REASONS

Evidence of the applicant, Liam Whelan

Mr Whelan has made several statements, the first apparently signed by him on 20 March 2019. It does not describe events in chronological order and I have attempted to place them in a logical sequence.
On 20 March 2019, Mr Whelan stated that he had not made any other workers’ compensation claims before or after he commenced work with the respondent. He was required to have a pre-employment medical, which involved a drug and alcohol test, and sight and hearing assessments. He disclosed pre-existing conditions of injury and illness.
The applicant had previously suffered a psychological illness; and in 1996 was diagnosed with chronic fatigue syndrome. He felt “burnt out”, having to manage 100 to 120 claims per month while working as a claims adjuster. He had time off work but fully recovered after 12 to 18 months.
The applicant stated that he had “carried a disc bulge” at L5/S1 on the left side of his lower back for the past 12 years. The injury occurred in 2007, when he lifted a Telstra manhole cover while working for Vision Stream. He never formally reported the incident or lodged a claim because no injury was immediately apparent.
In May 2007, the applicant had a CT guided nerve injection. Until May 2018, the injury was manageable with physiotherapy and stretching exercises. The applicant took Rapid 25 for pain relief when required.
Mr Whelan reported to Adrian Cogan, Account Manager. He was provided with induction and received training on policy and procedures, such as WH & S; Safe Work Method Statements; CPR; and Low Voltage Release and Rescue. He had disclosed his pre-existing back injury at the interview for the position. They did not appear to be overly concerned about this.
As regards his work for the respondent, the applicant stated that it included hauling cable; splicing; and testing and commissioning services on behalf of TPG -Telecom and Ausgrid. He was required to work at heights and in confined areas.
The applicant stated that his work for the respondent was labour intensive and physically demanding. He had to lift telecommunication pit lids that weigh a minimum of 25 kilograms; and set up work areas that required him to carry and erect a four-metre extension ladder that could weigh about 30 kilograms.
If the applicant was working in a confined space, he had to set up a fall arrest tripod, as well as carry a backpack, optical fusion splicer, fibre optic tester and portable generator. He had to manually haul cable through underground locations. This included either bending or reaching over his head while pulling.
The applicant stated that on 24 May 2018, at approximately 1am, he was working with his colleague, Kye Romeo. During the outage window from midnight to 6am, they were required to cut a fibre optic cable and relocate it. When they attempted to feed the cable between two Telstra manholes, they discovered that the conduits were blocked and had been damaged during construction.
The applicant and Mr Romeo discovered the damage to the conduits by moving about three inches of soil by hand; and moving a steel road plate that covered them. Lifting the plate caused or contributed to the injury to his lower back. He estimated its weight as 120 to 140 kilograms. He and Mr Romeo had athletic builds and were reasonably fit but struggled to lift it.
The lift was done in two stages. Stage one was for the men to lift the plate from the ground to a 45-degree angle, resting on their knees; and stage two was to use their legs and momentum to push the plate up and over the pit. Mr Whelan stated that he had immediate discomfort in his legs and hands. Once he lifted the plate, he felt a twinge and discomfort in his mid-back and shoulder blades.
At about 10:30am on 24 May 2018 Mr Whelan sent Mr Cogan a text message informing him about the damaged conduits and the need for them to lift an 80 to 90 kilogram road plate. He also sent a photograph showing the area of damage and the plate. The text message includes the words “Certainly didn’t need to move by hand the 80/90kg road plate between the two manholes”. There are also two photographs that are quite unclear but are marked as having been taken on 24 May 2018 at 12:52:59 am and 12:53:07 am.
The applicant stated that when he first started to notice pain and discomfort in his back, he had physiotherapy. The pain was not improving so he consulted a doctor in Penrith. His medication was changed from over the counter pain relief to Tramadol. He was also sent for CT scan and another injection on the left side, which was not effective.
The applicant stated that on 30 May 2018 he had physiotherapy at Sports Physiotherapy & Work Rehabilitation Centre at Penrith, as he had referred nerve pain in his right elbow, coming from his thoracic spine. Between this time and 20 July 2018, he had four sessions of manipulation, stretching and differential suction and electrodes. He continued to work, managing his pain with over the counter medication and physiotherapy. He thought his condition would improve and was related to his pre-existing injury.
The applicant then consulted his general practitioner, Dr Peter Hay, who arranged MRI scan, which showed that he had ruptured the disc at L4/5 on the right. He was referred to Dr Hsu and underwent a double discectomy at L5/S1. This was performed at Norwest Private Hospital on 11 September 2018. The applicant paid for this at a cost of about $8,000. He had continued to work full time until 9 September 2018.
The applicant stated that the surgery was required after he completely ruptured the disc at L5/S1 on the right, while working for the respondent. He lifted a steel road plate, weighing about 120 to 140 kilograms. He had bruising across the tops of his knees, as it was so heavy.
The respondent referred the applicant to its sickness benefit insurer, Point Insurance, and he completed the necessary paperwork. He understood he would be paid a weekly benefit while he was off work. After four weeks, Point Insurance denied his claim because of his pre-existing back injury. He then had to take his entitlement under the Long Service Corporation Fund.
The applicant was discharged from hospital on 14 September 2018. He returned to work full time, performing his pre-injury duties, on 13 November 2018. He stated that he had to return to work as he had run out of leave and was running out of money. He was not able to return to light duties as recommended by Dr Hsu. Mr Cogan informed him that he had to return to normal duties. The applicant has attached to his statement an email from Mr Cogan which is said to support this, but the email appears to be in response to the applicant’s resignation in April 2019.
The applicant was on annual leave from 19 December 2018 to 7 January 2019. He stated that it is not true that he did not report any injury or incident until he ran out of sick leave and then lodged a workers’ compensation claim. He had some accrued leave, having worked from 13 November 2018 until the end of January 2019.
The applicant acknowledged that he had a pre-existing lower back injury before lifting the road plate. However, he stated he was not experiencing significant pain or discomfort, was working full time and able to perform his job functions. Any pain was manageable and treated with physiotherapy and over the counter pain relief if required. The pre-existing injury did not impact his ability to lead a normal life. He was racing motorbikes for 3.5 years, regularly attending group rides, attending events and participating as a track marshal. He went to the gym and exercised regularly.
The applicant was engaged to a Thai national and had travelled to Thailand several times in the past two years. The last time he did so was between 19 December 2018 and 6 January 2019. He did not work when he travelled to Thailand. On his return, he resumed work on 7 January 2019.
The applicant submitted an Incident Report Form on 23 January 2019. His employer instructed him on 24 January 2019 to consult Dr Aji Chara, who issued him with a WorkCover Certificate of Capacity that certified him with capacity to work his usual hours and days, with some limitations. The same conditions and restrictions were imposed on 31 January 2019.
The applicant ceased work on 6 February 2019, after consulting Dr Hay, as he could no longer manage the degree of pain while working. He was also under the influence of pain medication that prevented him from concentrating and interfered with his ability to undertake his duties safely.
The applicant stated that in hindsight he should have reported his pain and discomfort sooner; and when he first felt it on 24 May 2018. However, he believed and hoped that he could manage this minor condition and that it would improve.
On 3 April 2019, the applicant sent an email to Mr Cogan. He sought redundancy on medical grounds. He stated that he was no better placed to return to his duties than when he ceased work “under the certificate of fitness review January/February 2019”. The matter of any workers’ compensation claim remained outstanding.
On 19 June 2019, the applicant made a further statement. He referred to the section 78 notice served on 14 June 2019. He disputed that he had not reported the injury on 24 May 2018, referring to the text message he sent to Mr Cogan. He stated that “admittedly”, he said the plate weighed 80/90 kilograms, but he thinks it was closer to 120 kilograms.
The applicant further stated that his Sickness Claim Form says the injury occurred on 19 July 2018, as that is when he saw his local doctor when his pain was becoming really acute. He does not think that section specifically says the date of injury and he understood it to be when he saw his doctor. He attended physiotherapy on 30 May 2018 and his back was sore.
The applicant ticked the “no” box to the question on the Form that asked whether the accident was work related because he thought it related to the date of 19 July 2018, when he saw the doctor, and he wasn’t injured on that day. He was on heavy painkillers and realised he wasn’t thinking properly. The applicant does not agree with the “comment” about the dates of his complaint to Dr Hay.
The applicant had commented on Facebook that “the injury was not my employer’s fault, but I would have been better off just lying and claiming workers compensation…sadly, I’m too honest for that”. This comment was made out of frustration in relation to his sickness claim. It did not mean he did not lift the heavy road plate and was injured. It simply meant he thought it was his fault, but the injury did occur in the course of his employment.
The applicant has always volunteered that he had a previous back injury. It never stopped him working over a number of years; and he believes he suffered a frank injury or severely aggravated his underlying back injury when he lifted the road plate.
On 29 July 2020 Mr Whelan stated that he recalled buying painkillers on 25 May 2018 at Chittaway Family Pharmacy. A receipt is attached to the statement, as is a receipt from the Chittaway Hotel. The applicant stated that he also purchased painkillers on 19 June 2018 from High Street Pharmacy.
The applicant stated that he had been told by his solicitor that his claim needed to be lodged within six months of the injury, that is on or before 23 November 2019 [sic: assumed to mean 23 November 2018]. He had never lodged a workers’ compensation claim before.
The first time the applicant consulted lawyers was on 22 January 2019, when he was at his “wit’s end in regards to” his injury and inability to work. His lawyer told him he also needed to provide a WorkCover certificate. He then lodged an Incident Report Form with his employer and obtained a WorkCover Certificate of Capacity shortly thereafter.
The applicant lodged a personal accident and sickness claim through his employer on 10 September 2018. He withdrew it because while it was being determined his employer would not pay his leave entitlements and he was financially desperate. He was not told about making a workers’ compensation claim.
The applicant again referred to the “stupid Facebook post”. At the time, he had undergone surgery two weeks earlier and was taking “heavy S8 drugs”. He was frustrated because he was in pain and with what was happening with Point Insurance and his sickness benefits claim.
The applicant stated he had not been on workers’ compensation before the Facebook post. He thought his employer would have told him to lodge a claim form if he was able to. It was a “throw away comment” and he is still unsure why he said it. If he was aware of having workers’ compensation rights, he would have lodged his claim in September 2018.
The applicant had sought medical treatment in Thailand and underwent radiofrequency ablation to his lumbar spine at Bangkok Hospital. He intends to have a spinal fusion because “I want my back fixed”. He has not yet had it, partly because of affordability and partly because of the associated risk of infertility.
On 7 September 2020 the applicant stated that before he submitted the claim form, he had never made a workers’ compensation claim and had no immediate family members who had made a claim. He was not aware of how the system worked. He was not aware that he was required to notify his employer of an injury as soon as possible after it happened, or that he had to make a claim within six months of the date of injury.

The applicant did appreciate that if he sustained an injury at work, he could make a claim for compensation. However, his understanding during that period was that the injury had to be a new injury. As he has always stated, he believed it was the same injury he had sustained in 2007 and that it had just been aggravated. He did not know he could make a claim for an aggravation, acceleration, exacerbation or deterioration of a pre-existing injury. If he had known this, he would have done so as soon as he was able.
The applicant has “made no secret” of the fact that he injured his lower back in 2007 and was diagnosed with a left L5/S1 disc protrusion. He was able to manage this condition for 11 years until the incident. It was not until he underwent MRI on 10 August 2018 that he became aware that he had suffered a right L5/S1 rupture. This was the first time he became aware that the incident had caused additional pathology in his lumbar spine.
The applicant stated that his employer has been aware of the injury since about July 2018, as it provided the claim form for the salary continuance policy before his admission to hospital. It had never previously provided any information regarding his workers’ compensation rights, a summary of the requirements of the legislation for giving notice or making claims, or what constituted an injury for the purposes of workers’ compensation. If he had been provided with information at the time, he would have made a claim.
On 26 October 2020, the applicant made a further statement.
The applicant stated that he has maintained from the outset that his injury occurred on 24 May 2018. However, it had been raised with Dr Quain, who had examined him at EML’s request, that driving for a prolonged period could be responsible for aggravation of a pre-existing disc lesion.
The applicant stated that the long periods he spent driving were for the purposes of his employment. The driving he had to do was very significant and he had to travel throughout the State. The various locations included Chittaway Bay, Wallsend, Tuggerah and Dora Creek. He often had to drive through paddocks, along fire trails on rocky and bumpy roads. He did not have a four-wheel drive vehicle.

The applicant stated that he had a company vehicle but could not drive any significant distance, let alone an average of 75 to 100 kilometres per day. When his work vehicle was last serviced, the odometer had 60,456 kilometres recorded. The service history is annexed to the statement. The applicant rarely used his work vehicle for private use, as it was not comfortable; and he liked to drive his own cars or ride his motorbikes.

Evidence of Adrian Cogan

Mr Cogan responded to the applicant’s email of 3 April 2019 on 4 April 2019, stating “I’m not excepting [sic] this. My view of this whole situation is disgusting and poorly managed. I will past [sic] this onto management for their review. I will give you a call this morning.”
It is not clear to what “situation” Mr Cogan was referring; and there is no further evidence from him.

Evidence of Kye Romeo

Mr Romeo has made a statement dated 20 June 2019. At the time, he was still in the employ of the respondent.
Mr Romeo recalled the evening of 24 May 2018 “very well”. He and the applicant were on a job where they had to access conduit and cables under the surface. They were digging to get to the conduit when they came to a very heavy road plate. He could not be sure of its weight, except that he recalled it was “very heavy”.
As it was 1am and they had to finish the job, Mr Romeo and the applicant agreed they had to lift the road plate. They lifted the plate and in the days and weeks following, he remembered the applicant “complaining and whinging about his back being sore”. He did not remember specific comments but did remember that after they lifted the road plate the applicant complained multiple times about his back being sore.

Facebook Posts

The respondent relies on a factual investigation report of SureFact Australia dated 15 February 2019. The report includes copies of several Facebook posts by the applicant.
On 25 May 2018, the applicant posted an entry from the Chittaway Motel. He wrote “A riveting weekend of work awaits…” There is no reference to him having sustained an injury on 24 May 2018.
On 17 July 2018, the applicant posted a photograph, apparently re-posted from the respondent’s Facebook, of him and Mr Romeo “hard at work” in the early hours of the morning on 17 July 2018.
On 20 July 2018 the applicant posted that he had “aggravated the nerve. From driving I expect”.
On 28 September 2018 the applicant posted that he had found out that his claim for sickness benefits had been rejected because his claim was a result of a pre-existing condition. He wrote “Not my employer’s fault, but I would have been better off just lying and claiming workers compensation. Sadly, I’m far to [sic] honest for that.”
On 8 October 2018, the applicant posted that he had claimed against the respondent’s corporate policy for sickness benefits. He had been told that his symptoms pre-dated the policy with his employer; and the insurer’s further investigation of his claim consisted of a facsimile to the doctors involved in his surgery “and diagnosis”.
On 30 October 2018, the applicant posted that he had been working all day in the garage on a friend’s bike.
On 9 November 2018, the applicant posted a photograph of a motorcycle, and stated that it was his last week off work after back surgery. The “frame and engine [were] separated. Engine on stand and frame ready to go out the door”.
On 1 February 2019, the applicant replied to a friend that he “probably did go back [to work] too soon”, but he had no choice as he had no more leave.

Incident/Injury Form

The Form is dated 23 January 2019. The date of injury is stated as 24 May 2018. Mr Romeo is named as a witness to the injury.
The details of the incident include “lifting steel road plate manually to expose damaged conduits…”

Evidence of Suzana Vidakovic

On 29 January 2021, Ms Vidakovic stated that she is the respondent’s Return to Work Coordinator.
Ms Vidakovic stated that the applicant was employed from 8 March 2016 to 23 April 2019. Payroll records indicate that he was away for work for 10 nights during this period. In the period after 24 May 2018, he was away from home for four nights.
Ms Vidakovic is not aware of any record of the applicant complaining of pain or discomfort during or after the periods in which he travelled, or about the company vehicle. It would be unusual for workers to travel on unsealed roads and more unusual to do long distance driving, as the respondent has a network of branches that deal with regional works and works outside Sydney.
Ms Vidakovic states that the various documentation submitted by the applicant makes no reference to a work injury. During the period of his employment the respondent displayed in the office posters provided by the government regarding workers’ compensation; and copies are posted on the intranet. Her statement annexes copies of the posters that are currently displayed.
The applicant completed an induction whereby relevant policies and procedures regarding workplace injuries were completed. During toolbox meetings, the importance of reporting any injury was repeatedly emphasised to all staff.

Documents Attached to Statement

A medical certificate dated 26 July 2018, issued by Dr Rachel Jack of High Street Family Doctors, certifies that the applicant was unfit for work from 25 July 2018 to 27 July 2018 inclusive, on account of back pain. It is not a SIRA certificate of capacity and provides no reason for the applicant’s back pain.
The applicant’s Personal Accident and Sickness Claim Form dated 10 September 2018 states that the accident/sickness first occurred on 19 July 2018. To the question of whether the condition is due to injury or sickness arising out of employment, the applicant has ticked the box marked “no”. He has also ticked the box marked “no” to the question whether he is claiming insurance or compensation such as workers’ compensation.
The medical practitioner’s statement was signed by Dr Peter Hay on 10 September 2018. He reported “no cause established” for the diagnosis; the date of onset/first symptoms was mid-July 2018; and the applicant had had the same condition in 2007, 2010 and 2013.
The statement attaches a poster issued by the government that advises workers of the steps to take if they are injured at work, the first of which is “tell your employer”. The poster records that EML is the insurer and Ms Vidakovic/Carolyn Roberts are the Return to Work Coordinators.

Medical Evidence

Castle Hill Medical Centre, Dr Peter Hay – General Practitioner

The Centre’s clinical records are in evidence.
There is a record on 2 May 2007 of the applicant having presented to Dr Hay with acute left buttock and leg pain, with paraesthesia of the left foot.
On 8 May 2007, Dr Hay recorded that MRI confirmed L5/S1 disc protrusion pressing on the S1 nerve root. The applicant was to undergo CT guided injection.
Dr Hay recorded on 22 May 2007 that the applicant was “much better” after the injection and wanted a referral to Dr Andreas Loefler. This referral was made.
On 13 May 2010, Dr Hay recorded that the applicant had picked up a child three days before. He felt left sided low back pain “same as 3 years ago”, radiating into his left buttock. He also had shooting pain down his right leg on bending over.
The applicant continued to consult Dr Hay about back pain in 2010 and 2011. On 24 May 2011, Dr Hay recorded that he had paraesthesia of the right foot; and he was referred to
Dr Hsu.
On 14 May 2013, Dr Hay recorded that the applicant had low back pain radiating to the left lateral thigh, which was getting better.
On 2 August 2018, Dr Hay recorded a history of two weeks exacerbation of lumbar back pain, radiating into both legs. The applicant had had a steroid injection. He noted on 10 August 2018 that the applicant had a large L5/S1 disc protrusion.
On 6 February 2019, Dr Hay recorded that the applicant was claiming workers’ compensation for “back pain disc prolapse”. He was on suitable duties. His medication was Tramal/Lyrica/Panadol. The applicant was to see Dr Hsu the next day. He had worsening paraesthesia in his right foot and right shin. Dr Hay issued a WorkCover certificate of capacity.
The applicant continued to consult Dr Hay for back pain during 2019.
Dr Hay reported to the applicant’s solicitors on 1 May 2019. He noted having examined the applicant first on 2 August 2018; and on various dates to 1 April 2019. When Dr Hay saw the applicant on 2 August 2018, he gave a history of severe back pain radiating to both legs after an incident at work. The pain required strong analgesia.
On examination on 2 August 2018, the applicant had severe pain in the lumbar spine with marked spasm and markedly reduced straight leg raise in both legs. The applicant subsequently presented with persisting lumbar back pain and pain in both legs.
Dr Hay opined that the applicant’s disc protrusion that occurred in July 2018 was brought about by his workplace and the injury sustained at work. This was a substantial contributing factor to his injuries.

Norwest Orthopaedic & Sports Physiotherapy

The clinical records show that the applicant underwent treatment for his lower back in 2012-2014, with a previous history of low back pain in 2007 and in April 2011.
The applicant also underwent physiotherapy for both elbows in August 2014; and for his lumbar spine in August 2016.
In 2012, the history recorded by the physiotherapist was that in April 2011, the applicant felt left sided acute low back pain, “was twisting”. There is a record that “Now building last 1/12”. There is also a record, apparently in 2012, that the applicant had been out in the field at work; and what appears to be “fixed flexed [illegible] posture standing at low desk 6-7 hours”.
In August 2016, the history recorded by the physiotherapist was that there had been an insidious onset of pain, “?related to falling asleep on couch”.
On 30 May 2018, the applicant sought treatment for his right elbow. The physiotherapist recorded that there had been a degeneration of right elbow tendonitis. The applicant had denied “HOI” (history of injury).
The physiotherapist noted “?work related. ?4-6/12 gradual onset”. There is also a previous history of treatment for low back pain (disc bulge, bone tumour).
On 17 July 2018, the physiotherapist recorded that “3/7 ago”, the applicant had been driving long hours (what appears to be “500+km”) and “now has LBP and nerve [illegible]”. “’Pressure’ was building up. “‘Corked muscle’ (gluteal)”.

Dr Brian Hsu – Orthopaedic Surgeon

On 24 August 2018, Dr Hsu reported to Dr Hay. He had reviewed the applicant on 15 August 2018, having not seen him for eight years. The applicant had previously had significant back pain and a bony lesion in the ilium, which was confirmed as a benign cyst.
Dr Hsu recorded a history that the applicant had recently been experiencing significant leg pain, with recent MRI showing a large disc herniation. He was very uncomfortable and demonstrated L5/S1 weakness on the left.
The applicant had had a cortisone injection and Dr Hsu did not feel that further injections would assist. The applicant required L5/S1 discectomy. He was unable to take time off and Dr Hsu was tentatively aiming for surgery in September.
On 24 October 2018 Dr Hsu reported that the applicant had made an excellent recovery from L5/S1 surgery and had little or no pain at all. He was very happy with Mr Whelan’s progress.
On 8 February 2019, Dr Hsu reported that the applicant had returned for follow up after L5/S1 decompression surgery. When Dr Hsu reviewed the applicant in October (2018) he was making an excellent recovery and his pain was well-controlled. He had attempted to return to work and had over the last few weeks developed severe back and leg pain.
Dr Hsu arranged for the applicant to undergo L4/5 epidural steroid injection. He reported to Dr Hay on 8 March 2019.
The applicant had undergone L4/5 epidural injection, which had given him some relief. This suggested that the L4/5 level was causing his current symptoms.
Dr Hsu suggested a further injection at L5/S1. If the applicant failed further non-operative treatment, it was likely that he would need to consider anterior and posterior L4 to S1 fusion.
On 2 May 2019, Dr Hsu reported that L5/S1 injection had given the applicant approximately 50% relief for a short period, but injections were not controlling his symptoms over long duration.
Dr Hsu opined that the applicant should be reviewed by a chronic pain management program until he was able to proceed with anterior and posterior lumbar decompression fusion to address symptoms at L4/5 and L5/S1.
On 2 August 2019 Dr Hsu reported to the applicant’s solicitors. He recorded having seen the applicant on several occasions from 7 July 2011 to 2 May 2019.
In response to requests for the history; findings on examination; and diagnosis, Dr Hsu referred to the attached consultation letters. He opined that the applicant’s injuries at work were a substantial contributing factor to his symptoms. The applicant had failed non-operative treatment [sic] and awaited definitive fusion.

High Street Family Doctors

The clinical records show that the applicant consulted various doctors in the practice, with
Dr Timothy Nguyen recording “disc bulge” on 28 January 2017; and Dr Bill Moss recording “lumbar disc bulge” on 31 October 2017.
On 19 July 2018 Dr Monique Moloney recorded “acute exacerbation of previous lumbar disc bulge injury”. The applicant “was driving for extended period over the weekend to go to south coast”. He “developed pain L lumbar region”, which “progressively got worse”. He was finding it hard to walk; and had seen the physiotherapist two days ago.
Dr Rachel Jack recorded on 26 July 2018 that the applicant had ongoing back pain. He improved but went back to work, which “made it flare again”.
On 16 March 2019, Dr Maiyoori Jeyaprakash recorded that the applicant’s history was recapped and “pt explained in detail”. He was requesting a letter of support “re: dates of when he has been seen at this practice”. He was “having issues with workers’ comp” and had a regular GP in Castle Hill whom he saw for this.
A medical certificate, which is not a SIRA Certificate of Capacity, was issued on 16 March 2019. It stated that the applicant had an exacerbation of lumbar disc pathology and is “currently under workers compensation”.
On 14 May 2019, Dr Jeyaprakash recorded that the applicant had been advised by Dr Hsu that he required two further surgeries. He had seen Dr Charles New “yesterday re: independent medical exam”. He was “dismissive” and the applicant was not happy with the interaction.

Immex Waterloo

The clinical records show that on 29 January 2019 the applicant presented with recurrence of back pain. The “original injury” was on 24 May 2018 at work. The applicant and another worker were moving a very heavy steel plate when he had a sudden onset of lower back pain.
The records note no other significant medical history. The applicant “rides a motorbike” but denied any other factors that may have caused an aggravation of the injury.
The doctor noted that the applicant had funded surgery by Dr Hsu, “even though it was clearly work related. I am uncertain as to why this was the case”. The applicant had returned to work after a few weeks off, but his symptoms had worsened over the last few weeks. He had gone to work that day but was unable to tolerate the pain after one to two hours.

Dr James Bodel – Orthopaedic Surgeon

Dr Bodel has been qualified by the applicant and reported on 20 May 2019.
Dr Bodel recorded a history that the applicant sustained a significant injury to his back on 24 May 2018. The circumstances of the injury are largely consistent with the applicant’s evidence, except that Dr Bodel has recorded that the plate may have weighed 125 kilograms.
Dr Bodel recorded that this was a “fairly physical activity”, but the applicant was not in any particular pain. He went home to rest for the remainder of the day. He was required to drive to Newcastle the next day (Friday) as he was due to work on Saturday and Sunday. He began to develop niggling pain in his back, right buttock and thigh, but thought it was just a minor aggravation of previous pathology. As the weekend progressed, he continued to work but the pain worsened and by Monday he was in a lot of pain.
On 30 May 2018, the applicant saw his physiotherapist for treatment, but his pain did not settle. He did not formally report this as a work-related matter as he hoped it would settle. Eventually the pain became unbearable and he saw a general practitioner in Penrith.
Dr Bodel referred to a CT scan performed on 20 July 2018, which “clearly shows a central and right sided disc prolapse” at L5/S1. The applicant had a previous problem at the same level but on the left. Dr Bodel had seen films confirming this.
Dr Bodel then recorded the history of the applicant’s subsequent treatment. At the time
Dr Hsu recommended a discectomy, the applicant had still not reported this as a workers’ compensation matter. He was still hopeful that it would settle. He continued to work until two days before 11 September 2018 to try to finish off some work for the Northwest project. By this time, he was taking large doses of Tramadol and rated his pain as 6/10.
The applicant had been told that the only viable treatment was the fusion proposed by
Dr Hsu. He had seen Dr Charles New for an independent medical examination but did not know what to do. Dr Bodel strongly advised him to go back to his local doctor and seek an independent view before proceeding with the major fusion. He was in quite significant pain, particularly in the lower back and down the right leg.
Dr Bodel had concerns about the anterior and posterior fusion and did not consider it was reasonably necessary at that stage. He opined that it may be prudent to consider a less invasive procedure.

Dr Bodel noted that the applicant had a previous work-related injury with Vision Stream in 2007 but did not make a claim. The back pain settled; and he managed it with intermittent physiotherapy. He had flareups of pain in 2010 and 2011; and managed without formal treatment, apart from occasional physiotherapy.
Dr Bodel recorded the applicant’s complaints, which included constant low back dull aching pain in both sides; right leg pain, with numbness and tingling; and some left leg pain. He noted that in 2007 the referred pain was into the left leg and had only gone into the right leg since the episode on 24 May 2018.
The applicant told Dr Bodel that after the 2007 injury he managed to return to motorcycle racing until about 2014. He also did marshalling work. He used to go to the gym two or three days per week. He had visited his wife in Thailand in late 2018/early 2019 but struggled with the travel.
Dr Bodel noted WorkCover certificates and reports from Drs Hay and Hsu, as well as investigations. He was provided with a copy of the applicant’s statement dated 19 March 2019. The applicant provided a history of having worked for Vinitec for about five years after working for Vision Stream. He then went on to work for the respondent. On each occasion he had to pass a pre-employment medical.
Dr Bodel opined that it was quite clear in the history and likely that the specific events of 24 May 2018 caused at the very least a further aggravation, acceleration, exacerbation and deterioration of previous disc pathology at the lumbosacral junction. He noted that the pathology had further extruded to the right, where the applicant’s previous pathology was on the left side only.
Dr Bodel diagnosed a disc prolapse at L5/S1 centrally and to the right as a consequence of the injury that occurred on 24 May 2018. He was satisfied that the injury was a substantial contributing factor to the applicant’s “current circumstance”.

Dr Stephen Quain – Orthopaedic Surgeon

Dr Quain was qualified by the respondent and reported first on 31 August 2020.

Dr Quain recorded a history that on 24 May 2018 the applicant was doing “migration work”, which included lifting a heavy road plate. He estimated its weight as at least 120 kilograms. Initially, the applicant stated that he strained his shoulder and arm, and believes he strained his spine at the same time.
This incident occurred on Wednesday night/Thursday morning. Two days later the applicant was required to drive to Newcastle; and in doing so he developed numbness in his right foot. He also complained of cramping in his “glute” on the right side. He stayed over that weekend; and in early June saw a physiotherapist. He believes that he saw his local doctor in July 2018.
Dr Quain recorded a further history that from May to August the applicant essentially acted as a supervisor as another worker was on leave.
Dr Quain then recorded the history of the applicant’s investigations and treatment, including the surgery performed by Dr Hsu.
The applicant told Dr Quain he was under pressure to return to work and resumed work in about November 2018. He deteriorated with leg and back pain, which became severe by January 2019. At that time, he lodged a claim and stopped work. He had been offered light duties or office type work, but was taking Lyrica and Palexia, which was affecting him. He resigned in April 2019 to access his long service leave.
The applicant traveled to Thailand in December 2019 and his pain was worse after the flight. He underwent radiofrequency ablation in Thailand, with considerable improvement. On his return, he had been attending physiotherapy, hydrotherapy and pain management, but this ceased due to COVID-19.
Dr Quain recorded that Dr Hsu had advised the applicant that a double level fusion, both posteriorly and anteriorly, may be indicated. The applicant had done an internet search and spoken to colleagues who had had unsuccessful fusions. Dr Quain advised him to seek a second opinion.
Dr Quain noted that in 2007 the applicant developed back and left gluteal pain. He had no time off but had intermittent back pain through 2010 and 2011.
Dr Quain diagnosed lumbosacral disc protrusion “+/-” scarring around the S1 nerve root on the right; and probable L5 root irritation on the right and left sides.
Dr Quain opined that a delay of seven weeks in reporting of symptoms was not medically consistent with an acute injury to the lumbar spine having been sustained on 24 May 2018. He reported that generally it would be expected that at least the acute back pain would have occurred sooner, although it is not uncommon for the onset of leg pain to be delayed for some weeks. He reported “I accept that driving for prolonged periods and indeed he notes that the drive to Newcastle several days after the injury exacerbated his pain” [sic].
While Dr Quain noted there were inconsistencies in the delayed onset, he opined that there was no doubt the applicant has a significant disc protrusion. Assuming he is an honest witness, lifting a weight of more than 100 kilograms had certainly aggravated a pre-existing disc lesion.
On 14 September 2020, Dr Quain provided a supplementary report. He noted that the details given in his report were according to the history provided by the applicant, which he accepted although he was aware there were inconsistencies in the history.
On the assumption that the applicant made no complaint of back pain until 19 July 2018, when he gave a history of the onset of acute back pain whilst driving for an extended period travelling to the South Coast, Dr Quain opined that this could be responsible for aggravation of a pre-existing disc lesion.

SUBMISSIONS

Counsels’ submissions have been recorded, and I do not propose to reiterate them in these reasons. I set out below a summary of the submissions.

Mr Brown for the applicant, submitted that his primary claim relates to the events of 24 May 2018. There are a number of estimates of the weight of the steel plate, from 80 kilograms to 120 kilograms, but it was significant. The applicant and Mr Romeo have given evidence of the injury. It is corroborated by Mr Romeo and by the applicant’s text to the respondent.
Mr Brown submitted that the applicant did not see a doctor for some time, that is, about 1.5 months after the event. During that time he was very busy at work. Two days later, he had to drive to Newcastle for work.
Mr Brown submitted that there was a large amount of driving. The applicant drove 60,466 kilometres between February 2016 and 10 July 2018, shortly before the complaint. He only used his work vehicle for work. He has given evidence of some of the terrain over which he drove. He has always maintained that his condition was aggravated after the event of May 2018.
Mr Brown further submitted that the applicant had suffered low back pain since 2007. It did not stop him from working. He had treatment from 2007 to about 2014. He thought this was just another episode of sporadic back pain, which he attempted to treat. It was not until he saw a solicitor that he knew he could claim for a pre-existing condition.
Mr Brown referred to the applicant’s radiology. He now has a right-sided disc protrusion. His condition has been quite significantly aggravated.
Mr Brown conceded that Dr Hsu’s evidence is not particularly helpful as regards causation. It is of no help to the Commission in determining the dispute. Dr Bodel has opined that the incident could have caused the applicant’s pathology; and Dr Quain agreed. He also agreed that driving could have an effect.
The applicant’s position, Mr Brown submitted, has always been that on 24 May 2018 there had been an aggravation of pre-existing pathology. The reason for the delay was that he did not realise there was anything more sinister than another niggle. He then found out it was more severe and underwent surgery. He had difficulty with the insurer, sought advice on 22 January 2019 and lodged a claim on 23 January 2019.
As regards sections 254 and 261 of the 1998 Act, Mr Brown submitted that the applicant satisfied “ignorance, mistake or absence from the State” that appears in both sections. By 7 September 2020, he knew he could claim for an injury, that is a new injury, not for something that occurred in 2007 and had plagued him ever since. He could not have known until he had the MRI in August 2018 that there had been a significant aggravation.
Mr Brown submitted that, pursuant to section 254(3)(a) of the 1998 Act, the respondent has not been prejudiced. There is a corroborative witness; the applicant’s text; and the respondent was aware by 9 September 2018 that the applicant had a significant condition. He submitted the Claim Form the respondent provided for income protection. Pursuant to section 254(3)(c) of the 1998 Act, the respondent had knowledge of the injury. It had knowledge of each key element.
Pursuant to section 261 of the 1998 Act, Mr Brown submitted that the applicant has satisfied subsection (4), as the claim for injury on 24 May 2018 was made within three years and either deemed date is within time. The applicant did not know he could make a claim and therefore satisfies ignorance and mistake. Alternatively, subsection (6) applies, as the applicant could not have known his injury was other than pre-existing until he consulted his specialist.
Mr Brown submitted that the alternate dates of injury both rely on aggravation of a disease, caused by heavy physical work and significant driving. The applicant has given evidence of his general duties and driving. He relies on Dr Quain’s opinion. If I am not satisfied on the primary case, I would be satisfied that the nature and conditions of the applicant’s employment could have, and did, cause the aggravation.
As regards main contributing factor, Mr Brown referred to the decision of Deputy President Snell in AV v AW [2020] NSWWCCPD 9. DP Snell held [at 77] that the test of “main contributing factor” involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
For the respondent, Mr Robertson submitted that it is trite that an opinion as to causation is only as good as the history on which it relies. Dr Bodel’s opinion was based on the applicant’s history, which is not made out. There are inconsistencies in the contemporaneous material and the case prosecuted by the applicant.
Mr Robertson referred to the decision of the Court of Appeal in Nguyen v CosmopolitanHomes [2008] NSWCA 246 (Nguyen) and submitted that I must feel a sense of actual persuasion that the applicant has sustained injury. He submitted that it is clear from the decisions in West vGovernment Insurance Office of NSW [1981] HCA 38 and Girlock (Sales) Pty Limited v Hurrell [1982] HCA 15 that the requirement for actual persuasion is of general application and is not limited to the test in the Briginshaw case (Briginshaw v Briginshaw [1938] HCA 34).
Mr Robertson submitted that it is not disputed that on 24 May 2018 the applicant and a colleague had to move a road plate. It was contemporaneously described in the applicant’s email to Mr Cogan. He told Mr Cogan what happened. It is not a report of injury.
Mr Robertson referred to the physiotherapy notes, which record treatment to the applicant’s right elbow. There is no record of referred nerve pain from the thoracic spine or back. The history provided by the applicant on 17 July 2018 was that three days ago he had been driving long hours and had low back pain. The symptoms on the diagram were left sided and central low back pain and pain in the left buttock. This ties in with the history recorded by
Dr Moloney on 19 July 2018 that the applicant had an exacerbation of a previous lumbar disc injury; and had been driving for an extended period over the weekend to the South Coast.
Mr Robertson submitted that, while the applicant submitted that he did a lot of driving, there was no evidence that he was driving to the South Coast for work. He was usually driving in a northerly direction, 90 to 130 kilometres from Sydney. It is more likely that in driving to the South Coast he was “on a frolic of his own”. There is no evidence that he did so for work. The history obtained by Dr Moloney is not consistent with injury in May 2018.
Mr Robertson submits that it was not until February 2019 that Dr Hay, the applicant’s usual general practitioner, became aware that the applicant was claiming workers’ compensation. It is “a bit rich” for the doctor to write a medico-legal report, in which he thought the date of injury was July 2018, and in which he does not say what the injury was. It is also inconsistent with his notes.
Mr Robertson submitted that it should be borne in mind that the applicant’s first complaints were of left-sided pathology and Dr Hay recorded significant left leg pain. The CT scan on 20 July 2018 recorded left sided radiculopathy. He submitted that there is sufficient evidence from the contemporaneous histories to determine that the applicant’s back problems commenced in July 2018, when there is no history of a work injury.
As regards the evidence of Mr Romeo, Mr Robertson submitted that there is no dispute that he and the applicant moved the plate. His statement was made one year after the event. It would be expected that he had no reason to have thought about it. There is no doubt that the applicant would have complained about his back from July 2018, because he was having problems with it at that stage. It was submitted that I would prefer the contemporaneous evidence. Dr Hsu recorded no history of an injury at all.
Mr Robertson submitted that while the applicant did lift a steel plate on 24 May 2018, it did not result in an injury. There is no medical evidence to support a nature and conditions claim. Dr Bodel attributes the applicant’s condition to injury on 24 May 2018, based on an erroneous history. His history does not deal with the fact that the applicant’s complaints were at first left sided.
Mr Robertson submitted that while Dr Quain conceded that driving could have exacerbated the applicant’s condition, if that was the case, it would be expected that the applicant might have said something about it. This concession would not give me a sense of actual persuasion.
As regards the pharmacy receipt dated May 2018, Mr Robertson submitted that there is no indication of what it was for. It is more probable than not that it was for elbow pain; and I cannot conclude it was for the applicant’s back.
Mr Robertson referred to the applicant’s Facebook post and the claim form for sickness and accident benefits. The applicant’s evidence is that he thought the date of injury was the date when he saw his doctor, but it is not an ambiguous question. The applicant has previously worked as a claims adjuster, so “knows a bit about filling out forms”. Mr Robertson submits that the applicant’s problems commenced in July 2018 and had nothing to do with the lifting incident in May 2018.
Mr Robertson finally submitted that there is a very serious issue with respect to injury; and on the balance of probabilities the applicant has failed to discharge his onus. There should therefore be an award for the respondent.
In reply, Mr Brown submitted that the applicant’s claim needs to be looked at in the prism in which he was at the time of the accident. He had been plagued since 2007 by problems in his lower back. At the first sign of trouble he did not seek treatment. He lived with it for a period of time and dealt with it with medication, treatment from his general practitioner and physiotherapy.
Mr Brown submitted that the applicant’s evidence was corroborated by his colleague. He made complaints on the day. There was no application to cross-examine Mr Romeo or the applicant.
As regards the Facebook post, Mr Brown submitted that it should be looked at in the face of the applicant’s evidence and his lack of understanding of the workers’ compensation system. He did not understand it is not fault-based. He did not know he could bring a claim until he consulted his solicitor.
Mr Brown finally submitted that I would accept the applicant’s evidence that he sustained injury on 24 May 2018 and make an award in his favour.

DISCUSSION AND FINDINGS

It is appropriate to deal first with the issue of injury.
Section 4 of the 1987 Act defines provides as follows:
“injury” –
(a) means personal injury arising out of or in the course of employment,
(b) includes a
“disease injury”, which means –
(i)a disease that is contracted by a worker in the course of employment but only if the employment was a main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration 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 initially claimed to have sustained only a frank injury to his lumbar spine on 24 May 2018. He later made alternative claims of injury deemed to have occurred on 9 September 2018 (as a result of lifting heavy objects, including steel road plates); and deemed to have occurred on 23 January 2019 (as a result of being required to drive long distances over rough unsealed terrain).
The applicant has made several statements, in which he attempts to address the issues raised with respect to contemporaneous accounts of the injury and the evidence that contradicts his account, including his Facebook posts. I have approached his evidence with some caution.
I accept that on 24 May 2018 the applicant was involved in lifting a steel road plate in the course of his employment. His evidence is corroborated by Mr Romeo, who lifted the plate with him, and his text to Mr Cogan on the same day. He estimated the weight of the steel plate at that time as 80 to 90 kilograms.
While the applicant told Mr Cogan he “certainly didn’t need” to move the plate, he did not claim to have injured his back or to have been in any pain or discomfort as a result. The claimed weight of the steel plate has increased from 80 to 90 kilograms to 120 to 140 kilograms, although on 19 June 2019, the applicant stated that he thought it was closer to 120 kilograms. It is likely that his assessment of its weight was more accurate at the time the lift occurred. In any event, Mr Romeo has confirmed that it was “very heavy”.
Mr Romeo stated on 20 June 2019 that he remembered in the days and weeks after this lift, the applicant was complaining about his back being sore, but he did not recall any specific comments.
As the respondent submitted, Mr Romeo’s statement was made one year after the event and he had had no reason to turn his mind to it before June 2019. It is possible that it was from July 2018 that the applicant began to complain about his back. In my view, I am assisted more by the contemporaneous medical evidence and the applicant’s own claims documentation than by Mr Romeo’s evidence.
Turning first to the applicant’s contemporaneous evidence, his Claim Form dated 10 September 2018 states that the accident/sickness first occurred on 19 July 2018. The applicant denied that his condition arose out of employment, or that he was claiming compensation such as workers’ compensation. This was only four months after the incident on 24 May 2018.
The applicant’s explanation for the information provided in the Claim Form is that 19 July 2018 was when he first saw his local doctor, when his pain was becoming really acute. He does not think the Form specifically requests the date of injury. The question is “When did the accident/sickness first occur?” It appears unlikely that, if the applicant had been experiencing pain since 24 May 2018, as he claims, he would not have provided that date as the date when the accident or sickness first occurred.

The applicant has answered “no” to the question of whether the injury or sickness arose out of his employment. I accept that, if there had been no frank incident and the claim was merely one related to the nature and conditions of employment, he may not have appreciated that his condition was related to his work, especially given his long history of back problems. However, given that he had been involved in the lifting incident only four months before, I would have expected him to make the connection with his employment, if he had indeed been experiencing back pain since that incident.
The applicant stated that he was taking heavy painkillers at the time of completing the Claim Form and has realised he wasn’t thinking properly. He was making a claim for weekly benefits on an insurance policy. He has previously been employed as a claims adjuster. That does not necessarily mean he has experience with workers’ compensation claims. However, it would be expected that he would understand the importance of providing accurate information when making an insurance claim.
The applicant was able to provide accurate and detailed information about his past medical treatment for a similar condition, including the names, addresses and telephone numbers of the practitioners; details of his diagnoses and treatment; and the period of treatment. Even if he obtained that information from his records, that is inconsistent with a person who was not taking care in completing the Form or was under the influence of medication.
By the time the applicant completed the Incident/Injury Form on 23 January 2019, he claimed that the date of injury was 24 May 2018. It is difficult to understand why he would attribute his condition to that incident in January 2019 but not in September 2018.
The applicant has attempted to explain his Facebook post that he should have lied about his injury as being due to frustration, pain and the ingestion of strong medication. He stated that it was a “stupid” and “throwaway” comment and he does not know why he made it. He has also stated that he thought the injury was his fault.
The Facebook posts alone are not determinative. It is probable that many people post “stupid” comments on Facebook, and later regret them. However, considering the other evidence, the applicant’s explanations are difficult to accept.

The contemporaneous medical evidence is also problematical. I accept that the applicant may not have appreciated that he could claim compensation for an aggravation of a pre-existing condition, and therefore may not have reported an injury or made a claim. However, I expect that he would have provided a history to his treating practitioners of the lifting incident on 24 May 2018, had it been the catalyst for his symptoms.
The applicant’s evidence is that he sought physiotherapy on 30 May 2018. However, he also stated that he had referred nerve pain in his right elbow, coming from his thoracic spine. He stated that his back was sore.
The clinical records of the physiotherapist on 30 May 2018 show that the applicant sought treatment for his right elbow. They refer to a history of treatment for low back pain.
There is no reference in the physiotherapist’s records to back pain on 30 May 2018, or to any injury on 24 May 2018. I would expect that, given the applicant was already attending the physiotherapist, if he had back pain, he would have taken the opportunity to seek treatment for it. This consultation was less than one week after the lifting incident.
The applicant relied on a receipt for pain killers issued at Chittaway on 25 May 2018. However, as the respondent submits, that is equally consistent with him experiencing pain in his elbow as in his back. The physiotherapist has recorded that the elbow pain had been present for four to six weeks.
The physiotherapist recorded on 17 July 2018 that three days before, the applicant had been driving long hours and “now has” low back pain. This is consistent with Dr Moloney’s record on 19 July 2018 that the applicant had been driving for an extended period over the weekend to go to the South Coast and had developed pain in his “L” (left?) lumbar region.
There is no evidence that the applicant’s trip to the South Coast was work related. He has given no evidence in any of his statements about any requirement to travel south in the course of his employment. As the respondent submitted, he was usually driving north for work.
As the respondent submitted, the applicant’s first complaints were of left sided back pain, which is the area of his pre-existing pathology. It appears that is what Dr Moloney recorded. The report of the CT scan of his lumbar spine performed on 20 July 2018 contains a history of left lumbar back pain with radiculopathy.
Dr Hay’s records show attendances by the applicant for back pain in 2007; and on 13 May 2010 he presented with a three-day history of left sided back pain, after lifting a child. He also had shooting pain down his right leg on bending over.
The applicant consulted Dr Hay on 2 August 2018. Dr Hay recorded a history of two weeks exacerbation of lumbar back pain, radiating into both legs. The timeframe of two weeks is consistent with the onset of pain after driving a long distance in mid-July 2018. Once again, there is no history of the incident on 24 May 2018, or of ongoing symptoms since that date.
Dr Hay referred to the consultation of 2 August 2018 in his report dated 1 May 2019. He reported that the applicant complained of severe back pain radiating into both legs after an incident at work. The difficulty I have in accepting this is that there is no reference to lifting or to work in Dr Hay’s clinical notes; and the onset of symptoms was recorded as being two weeks before.
I accept that clinical records are not always an accurate reflection of the history provided by a patient and should be approached with some care – Davis v Council of the City of WaggaWagga [2004] NSWCA 34. However, Dr Hay’s record on 2 August 2018 bears no resemblance to the history set out in his report, which was provided some nine months after the consultation.
Dr Hay has opined that the applicant’s disc protrusion, that occurred in July 2018, “was brought about by his workplace and the injury that he sustained at work”. He provided no detail about the injury to which he was referring. The report is also inconsistent with the statement signed by Dr Hay in September 2018 in support of the applicant’s Personal Accident and Sickness Claim that there was “no cause established” for the diagnosis.
I agree with the respondent’s submission and I attribute little weight to Dr Hay’s report.
Dr Hsu has been the applicant’s long-term treating specialist. The applicant consulted him on 15 August 2018, having not seen him for eight years.
Dr Hsu recorded no history of any injury on 24 May 2018, or any other injury. The applicant was unable to take time off and Dr Hsu was tentatively aiming for L5/S1 discectomy in September.
Dr Hsu reported to the applicant’s solicitors on 2 August 2019 that the applicant’s injuries at work were a substantial contributing factor to his symptoms. Once again, there is no recorded history of the applicant having sustained injuries at work. I therefore afford Dr Hsu’s opinion on causation little weight.
The applicant relies in the alternative on injuries deemed to have occurred on 9 September 2018 and 23 January 2019. He has submitted that these alternative dates rely on aggravation of a disease, caused by heavy physical work and significant driving; and if I am not satisfied on the primary case, I would be satisfied that the nature and conditions of the applicant’s employment could have, and did, cause the aggravation.
While the applicant submitted that he has always maintained that his condition was aggravated after the event of May 2018, he stated on 26 October 2020 that he has maintained from the outset that his injury occurred on 24 May 2018. He has responded to
Dr Quain’s opinion that driving for a prolonged period could aggravate a pre-existing disc lesion by stating that his work involved driving long distances.
The applicant had not previously maintained that driving long distances had aggravated his back condition; and did not do so in his last statement. He stated that he had to travel to various locations including Chittaway Bay, Wallsend, Tuggerah and Dora Creek, often over rocky and bumpy terrain. He did not mention any effect on his back or any requirement to drive to the South Coast.
Ms Vidakovic’s evidence is that the applicant spent 10 nights away for work in the three-year period of his employment, four of which post-dated 24 May 2018. She stated that it would be unusual for workers to travel on unsealed roads and more unusual for them to drive long distances.
There is no evidence as to whether the applicant drove his work vehicle to and from work, but Ms Vidakovic stated that that round trip each day would amount to approximately 30,000 kilometres a year; and it would not be unusual to have an odometer reading of 60,456 after visiting clients in the CBD each day over a period of two years.
As the respondent submitted, there is no medical support in the applicant’s case for the claim that his condition was aggravated by the nature and conditions of his employment.
Dr Bodel opined that it was quite clear on the history and likely that the specific events of 24 May 2018 caused at the very least a further aggravation, acceleration, exacerbation and deterioration of previous disc pathology. He diagnosed a disc prolapse at L5/S1 centrally and to the right as a consequence of the injury that occurred on 24 May 2018.
The history, however, is not “quite clear”. The applicant certainly lifted a heavy plate with
Mr Romeo on 24 May 2018, but the contemporaneous medical evidence does not support his case that he sustained injury as a result. On the contrary, it supports the proposition that if there was any aggravation of the applicant’s pre-existing pathology, it resulted from his driving to the South Coast in mid-July 2018.
Dr Quain has opined that a delay of seven weeks in reporting of symptoms was not medically consistent with the applicant having an acute injury to his lumbar spine on 24 May 2018.
Dr Quain was asked whether the applicant’s back injury was more likely attributable to the onset of symptoms while driving for lengthy periods on a background of a pre-existing condition. He opined “I accept that driving for prolonged periods and indeed he notes that the drive to Newcastle several days after the injury exacerbated his pain” [sic].
Dr Bodel also recorded a history that the applicant developed niggling pain in his back, right buttock and thigh after driving to Newcastle. However, this history is not consistent with that recorded by the physiotherapist on 30 May 2018; and the applicant has not referred to it in any of his statements.
Dr Quain was asked to assume that the applicant made no complaint of back pain until 19 July 2018, when he gave a history of the onset of acute back pain whilst driving for an extended period travelling to the South Coast. He opined that this could be responsible for aggravation of a pre-existing disc lesion.

I do not accept Dr Bodel’s opinion on causation, based as it is on a history that is not supported by the contemporaneous evidence.
In Nguyen, McDougall J said (McColl JA and Bell JA agreeing):
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact.”

The evidence in this matter is such that I do not feel an actual persuasion that the applicant sustained injury arising out of or in the course of his employment with the respondent, either on 24 May 2018, or deemed to have occurred on 9 September 2018 or 23 January 2019. The applicant’s own evidence and the contemporaneous medical evidence is insufficient for him to meet the onus of establishing “injury”, on the balance of probabilities.
Having determined the issue of injury in the respondent’s favour, it is not necessary for me to consider whether he met the obligations imposed by sections 254 and 261 of the 1998 Act.
There will be an award for the respondent.

Kerry Haddock

MEMBER

5 March 2021