Yahya v Tanks Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Yahya v Tanks Services Pty Ltd [2025] NSWPIC 336
APPLICANT:	Hafiz Ali Hamad Yahya
RESPONDENT:	Tanks Services Pty Ltd
MEMBER:	John Turner
DATE OF DECISION:	11 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; injury; section 4; Kooragang Cement Pty Ltd v Bates, Paric v John Holland (Constructions) Pty Ltd [1984], and Paric v John Holland (Constructions) Pty Ltd [1985] applied; Held – the applicant did not sustain injury to his lumbar spine as alleged; there is an award for the respondent.
DETERMINATIONS MADE:	1. The applicant did not sustain injury to his lumbar spine as alleged. 2. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Mr Hafiz Ali Hamad Yahya (applicant) has commenced proceedings in the Personal Injury Commission (Commission) in which he alleges that whilst in the course of his employment with Tanks Services Pty Limited (respondent) he sustained injury on 26 February 2020 (or in the alternative an acceleration, aggravation, exacerbation or deterioration of a disease) to his lumbar spine.
At the commencement of the arbitration hearing Mr Necovski confirmed on behalf of the applicant that the case which was being presented was as a frank incident on 26 February 2020 and also on that day that there was an aggravation of an underlying lumbar disease condition.
The applicant claims the costs of treatment, care and related expenses pursuant to s 60 of the Workers Compensation Act 1987 (1987 Act). The applicant seeks a general order for medical and treatment expenses in respect to the alleged injury to the lumbar spine. At the time of the arbitration hearing, it was confirmed that those costs and expenses solely related to treatment of the alleged injury to the lumbar spine.
There is no dispute that the applicant sustained injury on 26 February 2020 with liability having been accepted for a shoulder injury and injury to the cervical spine. The respondent does however dispute that the applicant sustained injury to his lumbar spine.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) injury (including disease injury) to the lumbar spine – s 4 of the 1987 Act;
(b) substantial contributing factor lumbar spine – s 9A of the 1987 Act, and
(c) whether claimed treatment is reasonably necessary as a result of injury – s 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 18 June 2025. Mr Boris Necovski, counsel, instructed by Walker Law Group, appeared for the applicant, who was present. Mr Greg Young, counsel, instructed by Bartier Perry Lawyers, appeared for the respondent. The proceedings were conducted in-person. 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 considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    Application to Lodge Additional Documents and attached documents lodged on behalf of the applicant dated 2 April 2025 (AALAD),, and
(d)    Application to Lodge Additional Documents and attached documents lodged on behalf of the respondent dated 12 June 2025 (RALAD).

Oral evidence

No oral evidence was adduced.

FINDINGS AND REASONS

It is an agreed fact that the first entry in the clinical records in evidence of any complaint in respect to the lower back is on 18 January 2022.
The respondent disputes that the applicant sustained injury as alleged and if the applicant did sustain injury as alleged then the respondent disputes that the claimed treatment, and in particular the emergency surgery for cauda equina on 23 February 2024, was/is reasonably necessary as a result of that injury.
Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
The applicant bears the onus of establishing injury on the balance of probabilities. 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: see Briginshaw v Briginshaw [1938] HCA 34; 91938) 60 CLR 336 (Briginshaw).
It is the applicant’s evidence at [1] of his statement of 20 February 2025 that he has experienced lower back pain since 26 February 2020 and that his symptoms worsened a week after the workplace incident. At [2] that over time his lower back pain gradually worsened, and he began experiencing significant radicular symptoms extending into his right leg and at [3] that the pain progressively intensified to the point where he became unable to walk and also developed neurological symptoms, including urinary retention and saddle paraesthesia.
It is an agreed fact that the first entry in the clinical records in evidence of any complaint in respect to the lower back is on 18 January 2022 which is almost two years after the pleaded workplace incident on 26 February 2020.
The simple fact that there is a delay in the reporting of an injury, or in the making of complaints in respect of an injury is not of itself determinative of whether an injury was in fact sustained.
Mr Necovski submitted on behalf of the applicant that the applicant has provided an explanation for the delay, that being that the applicant was dealing with injuries sustained to other body parts and that his focus was on those other quite severe injuries. Also that the applicant did report the injury to his general practitioner (GP) who failed to record the applicant’s complaint.
I have not been able to locate in the applicant’s statements any evidence as to him having reported the alleged injury to the lumbar spine prior to attending on Dr Eric Lim on
18 January 2022. Dr Gavin Soo, who provided a forensic medical report to the applicant, does record that the applicant reported that he did report the injury to his GP which the GP did not record. Dr Soo examined the applicant and took the relevant history after the applicant had attended on Dr Lim on 18 January 2022.
In the respondent’s submission the evidence supports that the applicant did not complain of or report any injury to the lumbar spine until his attendance on Dr Lim on 18 January 2022. In the respondent’s submission this is because no injury was sustained to the lumbar on
26 February 2020 as alleged.
In the respondent submission it is not just a matter of a single GP who was focussing on the neck and shoulder but multiple doctors including two shoulder surgeons, an orthopaedic surgeon with an interest in the spine who examined the applicant’s spine down to the sacrum, a rehabilitation provider who was attempting to return the applicant to employment as well as a specialist in pain and rehabilitation medicine who record no mention of any injury to the lumbar spine.
On 27 February 2020, being the day after the workplace accident, an Incident, Hazard or Near Miss Report[1] was completed which was signed by the applicant. That form records the injury sustained as a pulled shoulder and neck pain. It contains no mention of any injury to the lumbar spine. A Certificate of Capacity by the applicant’s then GP, Dr Bastakoti, which was also completed on 27 February 2020[2] also records injury to the left shoulder and neck with no mention of the lumbar spine.
[1] Reply pp. 1-2.
[2] Reply pp. 19-21.
On 16 November 2020 Pinnacle Rehab authored a Comprehensive Progress Report.[3] The report relates to the efforts being made to return the applicant to suitable employment. The report records that on 21 October 2020 the applicant had attended a scheduled job seeking session during which the applicant reported that he had been looking for delivery driver positions however reported that he could not drive long distances due to his neck pain. At a scheduled job seeking session on 28 October 2020 the applicant reported that he continued to have shoulder and neck pain. On 4 November 2020 at a scheduled job seeking session the applicant reported that he had a lot of pain and was unable to take pain killers due to the effects on his stomach pain. The applicant also reported that he had an injection to his shoulder and was having difficulties sleeping. The applicant again reported on 11 November 2020 that he was in a lot of pain.
[3] Reply pp. 24-28.
There is no mention of any injury to the lumbar spine or conditioning affecting the lumbar spine in that report.
On 18 August 2020 Dr Mohammed Baba, orthopaedic surgeon, reported to Dr Bastakoti.[4] The applicant appears to have been referred to, and examined by Dr Baba in respect to his shoulder injury. The report contains no mention of the lumbar spine.
[4] Reply p. 22.
On 28 October 2020 Dr Matthew Yalizis, orthopaedic surgeon, reported to Dr Bastakoti.[5] Whilst the applicant appears to have been referred to Dr Yalizis in respect to his shoulder injury the applicant also reported to the doctor pain in in his left ear, left side of his neck as well as the trapezius region. The report contains no mention of the lumbar spine.
[5] Reply p. 23.
On 12 January 2021 Pinnacle Rehab authored a further Comprehensive Progress Report.[6] Pinnacle Rehab reported that they had maintained constant contact with the applicant contacting him on 26 November 2020, 3 December 2020, 8 December 2020, 10 December 2020, 7 January 2021, 12 January 2021 and 13 January 2021. Furthermore, they reported that the applicant’s reporting of his symptoms remained consistent reporting constant levels of pain, very limited movement, poor sleep, on-going frustration and irritability, and discomfort in his shoulder and neck.
[6] Reply pp. 29-33.
Pinnacle Rehab also reported details of case conferences held on 27 December 2020 with Dr Bastakoti and 15 December 2020 with the applicant and Dr Yalizis.
The report again contains no mention of any injury or condition affecting the lumbar spine.
On 28 January 2021 the applicant was examined on Dr Sean Suttor, orthopaedic surgeon, who reported to Dr Matthew Yalizis at the Westmead Private Hospital. Whilst the applicant appears to have been referred to Dr Suttor in respect to his cervical spine the doctor conducted an examination which appears to have included the lower back with the doctor noting that the applicant could internally rotate the sacrum “but with some discomfort.”[7] The doctor records no history of the applicant having sustained any injury to the lumbar spine.
[7] ARD p. 115.
The applicant again attended on Dr Suttor on 24 February 2021 who reported to Dr Bastakoti on the same day.[8] The report contains no reference to the lumbar spine.
[8] Reply p. 34.
On 12 August 2021 the applicant was examined by Dr Tim Ho, specialist in pain and rehabilitation medicine, at the request of icare providing a report of the same date.[9] Dr Ho took a history from the applicant in respect to the incident on 26 February 2020 recording that he reported a sudden onset of pain in his left shoulder and neck. The applicant went on to provide to Dr Ho a detailed history of the treatment which he had received. The physical examination which Dr Ho performed extended beyond the reported injuries to the neck and left shoulder. Dr Ho does not report that the applicant reported any injury to his lumbar spine or any complaints in respect to his lumbar spine.
[9] Reply pp. 35-43.
In respect to his current complaints and symptoms Dr Ho recorded:
“Mr Yahya described his current pain as constant fluctuating pain over the left hemibody, including the left side of: his face, neck, shoulder, whole of left upper extremity, whole of left trunk and left hip. The pain was described as throbbing and stabbing. Mr Yahya denied any other associated symptoms apart from the pain itself. He reported that his pain is worse with usual activities, suggesting hypersensitivity. There is reported spontaneous nocturnal pain.”[10]
[10] Reply p. 38.
None of the Certificates of Capacity in evidence record any reference to a back injury prior to 18 January 2022.
I do not accept the applicant’s submission that the delay in reporting or complaining of any injury to the lumbar spine was caused by the focus being on the injuries to his neck and cervical spine.
As was submitted by Mr Young on behalf of the respondent it is not just the applicant’s GP, Dr Bastakoti, who does not record any complaint or report of injury it is also two shoulder surgeons, a spinal surgeon, the rehabilitation provider and a specialist in pain and rehabilitation medicine retained by the respondent.
The initial failure to report and record any back injury on 27 February 2020 in the Incident, Hazard or Near Miss Report and the initial Certificate of Capacity may be explained by the focus being on the neck and shoulder injuries as well as, according to the applicant’s evidence, the back symptoms not worsening until a week after the workplace incident. However, the applicant attended on his GP, Dr Bastakoti, on multiple occasions with multiple Certificates of Capacity being obtained. In my view if the applicant had complained to
Dr Bastkoti that he had sustained injury to his back it is highly unlikely that such a complaint would not have found its way into those Certificates of Capacity in circumstances where it is the applicant’s evidence that his back condition deteriorated over time and those Certificates of Capacity identified the applicant’s restrictions in terms of his work capacity including any restrictions on his ability to stand, sit, left, push/pull and drive. Activities that are often affected by back complaints.
Whilst the failure to report any injury to the lumbar spine to the shoulder surgeons may be understandable due to those doctors’ expertise and focus on the shoulder condition. The lack of any mention of any injury to the lumbar spine to Dr Suttor is less understandable given Dr Suttor’s expertise and interest in the spine and whilst the applicant appears to have been referred to the doctor in respect to his cervical spine the doctor conducted an examination which appears to have included the lower back.
That the focus was on the injuries to the neck and shoulder does not explain the lack of any mention of injury to the lumbar spine in the rehabilitation reports of Pinnacle Rehab and the forensic report of Dr Ho.
Pinnacle Rehab had repeated contact with the applicant as well as having case conferences with the treating medical providers. The reports relate to the efforts being made to return the applicant to work and the identification and obtaining of suitable employment. The reports record an interest in the applicant’s symptoms and complaints and yet contain no reference to a back injury or back complaints.
Similarly, Dr Ho takes a history of the event and injuries sustained in the incident on
26 February 2020 as well as a detailed history of the treatment which the applicant had received and of the applicant’s symptoms. The symptoms complained of by the applicant are not limited to the injured shoulder and neck but extend to virtually the entire left side of his body. Dr Ho also does not limit his examination to just the injured left shoulder and neck.
There is no explanation given by the applicant as to why he did not mention any injury to the lumbar spine to either the rehabilitation provider or to Dr Ho both of whom have provided detailed reports and to whom the applicant complained of symptoms beyond the neck and left shoulder. Also of relevance is that the examination of Dr Ho is conducted on 21 August 2021, almost 18 months after the event on 26 February 2020, in circumstances where it is the applicant’s evidence that his lower back pain gradually worsened over time.
The applicant relies on an opinion of Dr Bhisham Singh, treating spine surgeon, that the applicant’s shoulder, arm and neck symptoms overrode his symptoms of lower back pain.[11] I do not accept the opinion of Dr Singh. The reports from Pinnacle Rehab and in particular from Dr Ho record that the applicant was complaining of symptoms that extended well beyond his neck and left shoulder and arm which is inconsistent with the neck and left shoulder injuries overriding any other conditions and/or complaints.
[11] ARD p. 62,
On 18 January 2022, almost two years after the workplace accident, the applicant consulted Dr Eric Lim for the first time. It is at this time that the history of the applicant having sustained an injury to his lower back on 26 February 2020 is first recorded. On 18 January 2022 Dr Lim made a diagnosis of lumbar spine strain.[12]
[12] ARD pp. 380-382.
On 15 February 2022 an MRI scan was performed of the applicant’s lumbar spine. Dr John O’Rourke who reported on the scan[13] observed mild spondylotic changes as well as clear abutment (mild) of the traversing S1 nerve root in the lateral recess with minor changes at other levels and no central canal stenosis. Of particular relevance the doctor reported normal lumbar segmentation and alignment, that the conus is at the upper L1 level, that the cauda equina was unremarkable as was L3/4.
[13] ARD p. 107.

On 20 February 2024 a further MRI scan was performed of the applicant’s lumbar spine.
[14] ARD p. 91.
Dr Samer Ghattas who reported on the scan[14] noted multilevel spondylotic changes as well as L3/4 intervertebral disc sequestration with severe crowding of the cauda equina nerve roots at that level. Also, of interest severe intervertebral disc dehydration was noted at L5/S1, moderate intervertebral disc dehydration at L4/5 and mild intervertebral disc dehydration at L2/3.
Following the MRI on 20 February 2024 the applicant was referred to attend hospital. The applicant underwent emergency surgery for cauda equina on 23 February 2024 at Westmead Hospital.
Discharge Transfer Documents from Westmead Hospital following emergency surgery for cauda equina on 23 February 2024 record “a background of 2 year history of back pain and bilateral lower limb radicular pain to knees.” This would be consistent with the pain developing after the applicant had attended on Dr Ho and at about the time that the applicant attended on Dr Lim for the first time.[15]
[15] ARD p. 81.
The applicant relies on two forensic medical reports from Dr Gavin Soo, shoulder and knee surgeon, dated 8 April 2022[16] and 5 February 2025.
[16] ARD pp. 101-106.
Dr Soo initially examined the applicant via telehealth on 8 April 2022 recording a history that the applicant started noticing pain in his lower back a week after the incident on 26 February 2020. This history, which is taken over two years after the workplace incident on 26 February 2020, differs from the applicant’s statement evidence which is that the pain commenced on 26 February 2020 and then worsened a week later.
Dr Soo recorded that the applicant complained of constant lower back pain located in the middle of the back which at times radiated to the buttocks but not to the legs. However, he did experience occasional numbness of the left leg. The doctor records that the applicant found bending difficult due to the pain. He also found sitting, standing or walking for any prolonged period made the pain worse. The doctor recorded a sitting capacity of 25 minutes and a capacity to stand, walk or drive of only 10 minutes.
The symptomatology and functional restrictions which Dr Soo records are significant. In my view the degree of symptomatology and functional restrictions weigh against the applicant and his treatment and rehabilitation providers simply focusing on the shoulder and neck injuries and the neck and shoulder symptoms overriding any back symptoms. The symptoms and restrictions described by Dr Soo would have been highly relevant to the GP’s consideration of the restrictions being set in the Certificates of Capacity and it makes it highly improbable that the applicant would not have reported to Dr Ho that he had sustained a back injury in the incident on 26 February 2020 if that were the case.

Dr Soo examined the applicant a second time by telehealth for his forensic report of
[17] ARD pp. 53-59.
5 February 2025.[17] Dr Soo details that he had revisited the history with the applicant. Again, Dr Soo records that the applicant started noticing lower back pain a week after the workplace accident. A history which as previously noted is inconsistent with the applicant’s statement evidence. It is also inconsistent with the history recorded by Dr Lim on 18 January 2022.
Dr Soo diagnosed an aggravation of underlying degenerative changes to the lumbar spine which resulted in emergency cauda equina surgery. Apart from stating that in his opinion the applicant had sustained an aggravation of underlying degenerative changes the doctor provides nothing further as to the nature of the injury which the doctor says the applicant sustained. The doctor does not state the pathological nature of the aggravation, at what level(s) of the lumbar spine the injury was sustained or the nature of the process that was put in train accelerated and/or exacerbated which led to the need for the emergency cauda equina surgery.
In the respondent’s submission, a submission which I accept, Dr Soo does not adequately deal with the MRI scans of the lumbar spine and in particular the scan 15 February 2022. At the time of reporting on 5 February 2022 the applicant had undergone the two MRI scans as well as the emergency surgery for cauda equina. Dr Soo had access to the results of both MRI scans of the lumbar spine and provides in his report a summary of the results of both scans. In respect to the scan of 20 February 2024 Dr Soo notes at L3/4 evidence of intervertebral disc sequestration with severe crowding of the cauda equina roots otherwise the doctor simply records that there was multilevel spondylotic changes. The doctor makes no reference to other changes such as the severe intervertebral disc dehydration noted at L5/S1, moderate intervertebral disc dehydration at L4/5 and mild intervertebral disc dehydration at L2/3. Dr Soo is more fulsome in his summary of the MRI scan of 15 February 2022 however concerningly and significantly does not record that the L3/4 and the cauda equina were “unremarkable”. The doctor simply does not mention either the L3/4 level or the cauda equina in his summary of the 2022 MRI scan.
Dr Soo does not explain and makes no attempt to explain how the L3/4 segment and the cauda equina could be “unremarkable” on an MRI scan taken two years after the work incident and yet find that the work incident led to the need for emergency surgery for the cauda equina syndrome two years later. The doctor provides no explanation firstly as to why the 2022 MRI scan did not show some evidence of injury and secondly what pathological process the alleged injury caused or aggravated, exacerbated and/or accelerated which led to the need for emergency surgery.
In my view the doctor provides insufficient reasons for his opinion and does not create a “fair climate”[18] for the opinion that he expressed in respect to causation. I do not accept the opinion of Dr Soo.
[18] Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85).
The applicant also relies on the opinion of Dr Bhisham Singh, the applicant’s treating spine surgeon.
Dr Singh reported to icare on 25 March 2022 providing responses to a number of questions which had been put to him.[19] In response to being asked whether he believed that the applicant’s lumbar spine symptoms are related to the injury sustained on 26 February 2020 the doctor responded that he did without providing any reasons or basis for his opinion.
[19] ARD p. 62.
On 6 March 2025 Dr Singh reported to the applicant’s solicitors. The doctor somewhat vaguely, given the nature of the incident on 26 February 2020, records the mechanism of injury as “heavy lifting.” The doctor records that his GP “noted that he had a lumbar spine sprain at the time.” This history is incorrect if the GP which Dr Singh is referring to is Dr Bastakoti, the applicant’s GP at the time that the incident occurred on 26 February 2020. If Dr Singh is referring to Dr Lim, then that history was not taken until almost two years after the event. Noting that history Dr Singh then concludes that “it is very likely given the mechanism of injury and the nature and condition of employment that he must have injured his lumbar spine which has progressively deteriorated.”[20] Dr Singh’s reasoning for his opinion after noting the applicant’s age is that for the applicant “to have a large disc herniation at L3/4, which is the apex of the lumbar lordosis, resulting in cauda equina syndrome which had to be operated on, this would not likely have occurred on the balance of probabilities but for heavy physical work.”[21]
[20] AALAD p. 2.
[21] AALAD p. 2.
Dr Singh went on to observe that whilst “acute disc prolapse is reasonably common in this age group, it tends to occur in the lower lumbar spine at L5/S1.”[22] For the applicant to have this at L3/4, the doctor suspected he “may” have had a “significant lifting injury” which more likely than not was in the workplace in 2020. In the doctor’s opinion this has gradually evolved to the point where he had a large prolapse of the disc from the injured motion segment at L3/4 resulting in acute cauda equina syndrome which needed to be operated upon in extremis.
[22] AALAD p. 3.
I do not accept the opinion of Dr Singh. As previously discussed, there is a question over the history which the doctor relies upon as to the reporting of the injury to the GP. The doctor then adds a further dimension to the mechanism of injury which is not relied upon by the applicant being the nature and conditions of the applicant’s employment. However, of the greatest significance, Dr Singh is of the opinion that for the applicant to have the condition which he has at L3/4 the doctor “suspects” that he may have had a significant lifting injury in the workplace in 2020.
In my view the sustaining of a “significant injury” to the lumbar spine is contraindicated by the lack of complaint or report of injury in the clinical records for almost a two year period following the subject incident. Dr Singh also does not explain why, if there was a significant injury in 2020, the MRI scan performed in 2022 was “unremarkable” at L3/4 and in respect to the cauda equina. Strangely Dr Singh, in apparent support of his opinion that a significant injury was sustained in 2020, states that the 2022 MRI scan showed that the applicant had changes in his lumbar spine. The doctor did not mention the “unremarkable” findings in respect to the L3/4 level or the cauda equina. The doctor provides no opinion and makes no attempt to grapple with and explain his opinion given the findings in respect to the L3/4 and cauda equina in 2022 and provides no opinion as to what the pathological condition was and how it progressed in light of the 2022 MRI scan findings.
I do not accept the opinion of Dr Singh. As with the opinion of Dr Soo it is my view that Dr Singh provides insufficient reasons for his opinion and does not create a “fair climate”[23] for the opinion that he expressed in respect to causation
[23] Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85).
Mr Necovski submitted on behalf of the applicant that scans can differ in their results and fail to reveal pathology and that the substantial differences between the two MRI scans of 2022 and 2024 may be explained by the fact that the MRI scan of 2024 was performed with the use of contrast which in Mr Necovski’s submission would have increased the sensitivity of the scan whilst the 2022 scan was not. However, there is no medical evidence as to what effect the use of contrast would have had and there is no explanation as to why the 2022 scan showed minor changes at other levels whilst the L3/4 and cauda equina was reported as being unremarkable. Dr Singh and Dr Soo simply do not grapple with the findings of the 2022 MRI scan in any meaningful way or with the differences between the two scans and how they fit into their opinions as to causation.
Mr Necovski also submitted on behalf of the applicant that the opinions of Dr Soo and Dr Singh support that there was a gradual and progressive build-up of disc material in the spinal canal, in accordance with the doctor’s opinions that the condition was progressive, which eventually results in the applicant requiring the emergency surgery. I do not accept this submission.
Whilst Dr Singh and Dr Soo have provided their opinions that the condition was a progressive one there is no evidence that there was a buildup of disc material in the spinal canal over time and the opinion of Dr Singh appears is to the effect that there was an acute disc prolapse rather than there being a gradual process as submitted by Mr Necovski. Dr Singh reported to Dr Ho on 15 August 2024 that the applicant had suffered an “acute exacerbation of his lumbar injury with large amount of disc material from L3/4 lying in the canal and resulting in the cauda equina syndrome.”[24] The submission is also contrary to the opinion of Dr Singh discussed above that whilst “acute disc prolapse is reasonably common in this age group, it tends to occur in the lower lumbar spine at L5/S1.”[25] For the applicant to have this at L3/4, the doctor suspected he “may” have had a “significant lifting injury” which more likely than not was in the workplace in 2020. In the doctor’s opinion this has gradually evolved to the point where he had a large prolapse of the disc from the injured motion segment at L3/4 resulting in acute cauda equina syndrome which needed to be operated upon in extremis.
[24] ARD p. 60.
[25] AALAD p. 3.
In the applicant’s submission the only explanation for the applicant requiring the emergency surgery for the cauda equina is that the applicant sustained injury on 26 February 2020 and that the injury progressed to the point where the emergency surgery was required. However, the applicant bears the onus of proving injury. Furthermore, Dr Singh does provide an alternate explanation observing that “acute disc prolapse is reasonably common” in the applicant’s age group. Whilst the acute disc prolapses may “usually” occur in the lower lumbar spine at L5/S1 this does not mean that on this occasion it has not occurred at the L3/4 level.
Whilst I accept the applicant’s submission that the event on 26 February 2020 was a heavy incident capable of causing an injury to the lumbar spine that does not mean that such an injury was sustained. It is for the applicant to prove injury on the balance of probabilities.
The respondent relies on the opinion of Dr Doig, general orthopaedics and trauma specialist, who initially examined the applicant on 13 May 2022 and provided a forensic report to the respondent dated 20 May 2022.[26] Noting the lack of any contemporaneous record of complaints of injury to the lumbar spine the doctor concluded that there was no evidence that the applicant had sustained injury to his lumbar spine in the workplace incidence on
[26] Reply pp. 51-57.
26 February 2020.
Dr Doig provided a further forensic report to the respondent dated 7 May 2024[27] following examination on 29 April 2024 recording that in recent times the applicant had developed worsening pain in his lower back with neurological symptoms. The doctor observed that the MRI scan in February 2024 had identified L3/4 disc sequestration pressing on the spinal cord which was not present on the scan of 2022. The doctor observed that there was no abnormality at the L3/4 level on the previous scan.
[27] Reply pp. 58-65.
Dr Doig maintained his previous opinion that there is no evidence that the applicant suffered a lower back injury in the subject incident at work. In the doctor’s opinion the probability of the new L3/4 sequestration being related to the work incident is negligible. The doctor was unable to explain how the recent L3/4 disc sequestration is related to the work incident.
In the doctor’s opinion there appeared to have been an acute disruption of the L3/4 disc on the medical imaging in 2024 which was not present on the scan of February 2022. In the doctor’s opinion this was not progressive, age-related degeneration.
I prefer the opinion of Dr Doig. The opinion of Dr Doig that the failure to report any injury to the lumbar and the lack of any clinical record of complaints in respect to the lumbar spine until 18 January 2021 is consistent with my view of the evidence. Dr Doig in forming his opinion as to any causal connection between any possible injury on 26 February 2020 also takes into consideration the findings of the two MRI scans unlike Dr Sigh and Dr Soo.
For the above reasons I am of the view that a commonsense evaluation of the causal chain does not support a conclusion that the applicant sustained any injury to his lumbar spine as alleged. I am not satisfied on the balance of probabilities and do not feel an actual persuasion that the applicant has sustained injury to his lumbar spine as alleged.
I therefore find that the applicant has not discharged its onus of proving the alleged injury to the lumbar spine on the balance of probabilities.
If I am wrong in respect to the applicant sustaining injury to his lumbar spine as alleged. For the above reasons I am also of the view that a commonsense evaluation of the causal chain does not support a conclusion that the emergency surgery performed on 23 February 2024 was reasonably necessary as a result of the alleged injury. I am not satisfied on the balance of probabilities and do not feel an actual persuasion that the emergency surgery performed on 23 February 2024 was reasonably necessary as a result of the alleged injury.

[2025] NSWPIC 336

11 July 2025