1. On 2 August 2023 the applicant slipped and fell and sustained injury to his neck, back and left knee in the course of his employment with the respondent. The respondent paid the applicant weekly compensation as a result of that injury until 19 February 2024.
2. The applicant claims weekly compensation from 19 February 2024 in respect of the above injuries, as well as for psychological injury, and right knee and GORD conditions. The respondent disputed capacity and liability for the additionally claimed conditions.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. 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.
2. At the hearing of this matter the applicant was represented by Mr De Meyrick of counsel, instructed by Mr Zygis, solicitor, and the respondent by Ms Balendra of counsel, instructed by Mr Myles, solicitor.

1. The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:

(a) Application to Resolve a Dispute and attached documents;

(b) Reply and attached documents, and

(c) Application to lodge additional documents dated 16 April 2025, and attached documents.

1. The applicant provided a statement dated 3 December 2024.
2. The applicant stated that he was born in Iraq and came to Australia in 2012 when he was about 26 years old. He completed an engineering degree in Iraq.
3. In early 2023 he commenced full-time work for the respondent as a carpenter.
4. The applicant stated that at the time of the accident on 2 August 2023 his employer was involved in the construction of the Children's Hospital car park in Westmead. He stated that his working area was not well lit and it was difficult to see his surroundings clearly.
5. He stated that on 2 August 2023 he was carrying a heavy handrail and he slipped on a discarded rounded conduit on the floor. He said that he tried to rebalance, his back seized, and he fell backwards onto the concrete. He said that he thought he momentarily lost consciousness.
6. The applicant stated that he felt severe pain in his neck, mid back, lower back and left knee. He said that an ambulance was called to the accident site and he was transported to the Westmead Hospital emergency department.
7. He said that as a result of the accident he sustained injury to his neck, middle back, lower back, and left knee and due to overcompensation injury to his right knee, and also due to the ingestion of medication he sustained "GORD", which I infer is gastro-oesophageal reflux disease. The applicant also stated that he sustained psychiatric injury as a result of the subject accident.
8. The applicant stated that since the accident he has been in constant pain, in his back and neck, which has affected his mobility and well-being. He stated that the pain has been so severe that it impacted his ability to sleep. He stated that he has become dependent on medication and emotionally the effects of the accident have been devastating.
9. He stated that due to pain in his left knee he started to shift his weight onto his right knee with additional strain and he started to feel pain in the right knee.
10. The applicant stated that he had taken medications for his work injury including Tramadol, Lyrica, Panadeine Forte, Gabapentin, Meloxicam, Paracetamol, and Doxylamine for insomnia. He stated that he had to stop taking Lyrica due to the side-effects and he also suffered from side-effects due to his medications including reflux, nausea, vomiting, heartburn, dizziness and difficulty eating.
11. He also said that as a result of the accident he developed mental exhaustion, deterioration in psychological well-being, fear for the future, strain on relationships, loss of sleep and anger.

1. A discharge summary and referral of the Westmead Hospital dated 2 August 2023 diagnosed soft tissue injury. The history recorded a trip and fall at work in which it was recorded that the applicant tripped over a metal "greeble" and fell forward. It was also recorded that there was neck, thoracic back and left knee pain. A CT brain and cervical spine and an X-ray of the pelvis, lumbosacral spine and left knee were performed which were not reported to show serious injury.
2. Mr Nguyen, physiotherapist, in a report dated 8 August 2023, recorded a history of a slip and fall at work when the applicant slipped on a pipe and fell onto his back, with report of neck, lower back and left leg radiating pain. Mr Nguyen noted reports of low back pain, bilateral neck pain and left anterior knee pain. He noted a very guarded presentation as the applicant was in severe pain.
3. The clinical notes of Dr Kako of the Genesis Medical Centre recorded on 8 August 2023 that the applicant stepped on a conjugate while carrying weight and fell backwards onto concrete. Pain was noted as reported in the lower back with radiculopathy, neck, upper back, bilateral knee, left worse than the right, insomnia and "acute stress disorder-worse when moving with pain". As well as the reports of pain, it was noted that the applicant was also very stressed and suffering from insomnia.
4. An initial certificate of capacity dated 8 August 2023, signed by Dr Kako, under "diagnosis of work related injury", stated:

"1. Lower back pain with radiculopathy to the left leg

3. Headache (nil vomiting, nil visual disturbances)

9. Acute Stress disorder - worse when moving with pain"

1. By 15 August 2023, Dr Kako recorded similar complaints including insomnia, acute stress disorder and low, stressed and anxious mood. Similar issues were recorded thereafter in subsequent notes, as well as notations of medication intake.
2. A psychology referral on 28 September 2023 by Dr Kako referred to an acute stress disorder post fall, with severely low mood and anxiety and suicidal thoughts due to the severity of pain and insomnia.
3. Another note dated 27 October 2023 recorded an email Dr Kako sent to the case manager "Karen" thanking her for approving psychology services. He noted that the applicant's symptoms were very severe and he had expressed suicidal ideation but had not acted upon it. He also noted the severity of the applicant symptoms and his mental health deterioration. I infer that this was an email to the workers compensation insurer (EML). As well as reference to a case manager and treatment approval, a further note on 7 December 2023 referred to a case manager with an EML email address.

In a clinical note dated 15 November 2023, Dr Kako continued to note bilateral knee pain, worse in the left knee. He also noted that in respect of issues arising since the previous consultation, there was persistent pain, and also "right side compensating".

Subsequent notes recorded low mood, pain, insomnia, anxiety and being pain focused, as well as continuing pain symptoms in the neck, middle and lower back and both knees, left worse than right.

Clinical notes of Mr Hurmoz, psychologist, commenced 2 November 2023. The initial note recorded a history of prior work in Iraq as an interpreter and arrival in Australia by boat in 2012 with subsequent time in a detention centre. Mr Hurmoz took a history of injury at work, followed by feeling much pain and very low mood and dissociation. Mr Hurmoz recorded that the were no injuries or health problems before.

In a note dated 25 November 2023 Mr Hurmoz said that he provided the applicant with a "diagnosis of MDD". In the context of the notes referred to below, I infer that this was a reference to major depressive disorder.

A referral letter dated 14 June 2024 by Dr Kako to Dr Blagoje Kuljic stated:

"Thank you for seeing Abather Akbawy, a 38 yrs year old Male for opinion and management of severe depression, anxiety, stress disorder, panic disorder and self harm ideatio [sic]. Abather sustained significant pain in his back following a workplace injury and his mental health has since deteriorated. He continues to suffer from radiculopathy and reports severe insomnia, flashback and intrusive thoughts.

1. Dr Dias identified Duloxetine as an SNRI antidepressant medication for management of symptoms of depression and anxiety and also chronic pain.

1. Dr Singh, orthopaedic and spine surgeon, provided a number of treatment reports commencing on 20 December 2023.
2. Dr Singh recorded a history of lower back pain and upper back pain secondary to disc herniation in the lower lumbar spine. He noted a normal gait and normal range of motion of the cervical spine. He recommended injection to the lumbar spine to help manage pain, and X-ray.
3. In a subsequent report of 20 February 2024 Dr Singh noted continuing significant back and leg pain not responding to conservative treatment. Dr Singh diagnosed L5/S1 disease and considered the need for L5/S1 decompression and fusion surgery as being reasonably necessary.
4. In his report dated 19 March 2024, Dr Singh noted continuous back and leg pain. Dr Singh stated that close to all nonoperative options had been exhausted, which was why he requested surgery. Dr Singh stated that the applicant was unable to work and he did not believe that the applicant had capacity to work for the foreseeable future due to the lumbar injury and lower back pain with leg pain.
5. In a report dated 23 July 2024, Dr Dias, consultant occupational physician, recorded a history of injury at work on a construction site at Westmead Hospital on 2 August 2023. He noted that the applicant was carrying a heavy handrail in his hands when he stepped on a discarded conduit pipe, slipped and fell backwards, landing directly on his back and also hitting the back of his head on the concrete floor. Dr Dias recorded that the applicant felt severe pain in his neck, mid back and lower back regions and was transported to the nearby emergency department of the Westmead Hospital.
6. Dr Dias recorded that the applicant had ongoing symptoms of pain, stiffness and discomfort affecting his neck, lower back, upper back, shoulders and knees in the days following the subject accident. Dr Dias noted continuing pain in these areas thereafter.
7. Dr Dias noted that current treatment included analgesic medication for management of chronic pain, medication for management of chronic neuropathic pain, anti-inflammatory medication and also SNRI antidepressant medication on a daily basis for management of symptoms of depression and anxiety as well as management of chronic pain. He noted treatment by a psychologist for management of symptoms of depression and anxiety.
8. Dr Dias on examination noted that the applicant had a significant antalgic gait pattern favouring the left lower limb. He noted that the applicant was in significant discomfort during examination.
9. Dr Dias diagnosed persistent aggravation of previously asymptomatic degenerative cervical spondylosis secondary to muscular ligamentous strain with associated disc protrusions at C4 - C7 levels. He diagnosed chronic non-specific thoracic spine pain and stiffness secondary to an acute muscular ligamentous strain with disc protrusion at T9 - T 10. Dr Dias also noted persistent aggravation of previously asymptomatic degenerative lumbar spondylosis with left L5 radiculopathy secondary to muscular ligamentous strain with bulges at L3 - S1 levels. He diagnosed and acute soft tissue injury to the left knee, and also acute soft tissue injury to the right knee.
10. Dr Dias attributed these injuries to the subject accident and was of the opinion that the applicant's employment with the respondent was the substantial contributing factor to the thoracic spine, shoulders and both knee conditions and subsequent incapacity. He was of the opinion that the applicant's employment with the respondent was a main contributing factor to the aggravation, acceleration and exacerbation of the cervical and lumbar spine conditions and he attributed 90% of the symptoms and disabilities to the work related incident and the remaining 10% to the pre-existing degenerative changes.

Dr Dias disagreed with the opinion of Dr Rimmer, whom Dr Dias characterised as essentially ignoring reports of symptomatology and physical examination findings and attributing them to abnormal illness behaviour or lingering. Dr Dias was of the view that this ignored the overwhelming contemporaneous medical evidence to the contrary.

Dr Dias was of the opinion that the applicant is totally unfit for any form of suitable employment due to persisting symptoms and disabilities coupled with heavy daily use of analgesia and associated psychiatric comorbidity.

Dr Rimmer, orthopaedic surgeon, provided reports to the workers compensation insurer and its solicitors.

In his report dated 19 October 2023, Dr Rimmer recorded a history of an incident at work while the applicant was working on a handrail when he slipped on the concrete and fell backwards and he was unable to stand due to pain in the spinal column. He noted treatment at the Westmead Hospital and examination and thereafter discharge on the same day.

Dr Rimmer noted that on that occasion no radiological investigations were available. He noted documentation including an MRI lumbar and thoracic spine report dated 25 August 2023.

Dr Rimmer recorded current symptoms as descriptions of pain in the cervical spine and the thoracolumbar spine, with no evidence of radiculopathy to either the upper limbs or the lower limbs.

Dr Rimmer noted that the actual image of the MRI scan of the spinal column needed to be reviewed for the purpose of assessment. He diagnosed musculoskeletal strain of the cervical spine, thoracolumbar spine and abnormal illness behaviour, "without the benefit of radiological investigations", which he said he needed to review the actual MRI scan to confirm diagnosis. He noted a "tendency to over exaggeration". Dr Rimmer was of the view that the applicant had become pain focused, demonstrating abnormal illness behaviour.

Dr Rimmer was of the view that, based on the history and examination on that occasion, the applicant had no capacity for work.

In a "file review" report, Dr Rimmer noted a nuclear bone scan report dated 6 November 2023. Dr Rimmer also noted an MRI scan report of the lumbar spine dated 25 August 2023 showing no abnormality, and that he disagreed with that report.

Dr Rimmer was of the opinion that given the normal imaging of the spinal column, his diagnosis was overwhelmingly abnormal illness behaviour/malingering. He was of the view that any soft tissue injury that had been sustained to the cervical or thoracolumbar region had "well and truly resolved". Dr Rimmer was of the view that all imaging of the spinal column showed no significant abnormality. He was of the opinion that there were gross inconsistencies between reported symptoms, demonstrated level of capacity and the objectively identified pathology which was that all imaging of the spinal column showed no abnormality.

Dr Rimmer commented that given that extensive investigations of the spinal column showed no abnormality, confirming a diagnosis of abnormal illness behaviour/malingering, he recommended "period of surveillance".

In his report dated 19 December 2024, Dr Rimmer re-examined the applicant and noted that upon specific questioning the applicant said that he had no pain in either the left or right shoulders or right knee, "either acutely or consequently". Dr Rimmer noted that this was consistent with the history provided at initial assessment.

On examination, Dr Rimmer noted complaint of neck pain, normal examination of both upper limbs, and mild tenderness to firm palpation throughout the thoracic and lumbar spine. He reviewed an MRI scan of 25 August 2023 which he said showed minor disc degeneration at T 9/10 with no neural impingement and disc degeneration and bulging at L5/S1 with no neural impingement. He noted that the previously mentioned bone scan showed no abnormality.

Dr Rimmer diagnosed resolved musculoskeletal strains of the lumbar spine, thoracic spine and cervical spine. He stated that there was no diagnosis in respect of the right knee or either shoulder.

Dr Rimmer noted that in his view there were gross inconsistencies. He stated that when the applicant was viewed informally in the waiting area he moved with relative ease which was in marked contrast to the commencement of the formal examination.

He was of the opinion that the applicant had not suffered a right knee, right shoulder or left shoulder condition separate to or pre-existing the injury. He maintained his earlier opinion.

Dr Rimmer was of the opinion that the applicant could return to pre-injury duties.

Dr Rimmer stated that the fundamental difference between his opinion and that of Dr Dias was that Dr Rimmer did not believe that the applicant had any genuine physical impairment.

1. The Application was amended at the hearing of this matter to additionally claim a general order pursuant to s 60 for medical and treatment expenses.
2. At the hearing of this matter, the respondent made submissions as to the areas of dispute being injury consequential condition of the right knee, consequential psychological condition, GORD, and capacity.
3. The hearing was conducted on the basis that there was no dispute that there was injury in the course of employment on 2 August 2023 and that the applicant suffered injury to his neck, thoracic spine, lumbar spine and left knee.
4. The respondent questioned the applicant's reliability in terms of the history of injury that was recorded. It pointed to inconsistency between the recorded slip and fall and whether the applicant fell forwards, as noted by Westmead Hospital, or backwards as the applicant stated.
5. I do not accept the respondent's submissions in respect of the applicant's reliability. In my view, such apparent inconsistency should be approached with caution, for the reasons outlined in Mason v Demasi.[1] The records of Dr Kako and Mr Nguyen, on 8 August 2023, shortly after the incident, support the applicant's statement that he fell backwards.
6. In relation to the applicant's right knee, the respondent submitted that the only evidence was the applicant's statement, and the report of Dr Dias. It was submitted that there was no explanation by Dr Dias as to how the right knee pain or that diagnosis of that pain has arisen. It was noted that Dr Dias had made the same diagnosis in relation to the left knee.
7. The respondent challenged the diagnosis of Dr Dias with respect to the findings on examination, particularly with respect to stiffness when the examination showed no issue in relation to extension or flexion or any other issue. It was submitted that it could not be accepted that the applicant had sustained injury to the right knee in circumstances where there was no radiological evidence of any pathology in relation to the right knee.
8. I do not accept the respondent's submissions. The clinical note of 15 November 2023 by

Dr Kako in my view supports the applicant's statement that due to the difficulties with left knee pain he compensated on his right side and sustained right knee pain over time. Bilateral knee pain, left worse than the right, had been recorded by Dr Kako since August 2023, but it was the consultation in November 2023 that noted persistent pain as an issue arising from the previous consultation with reference to right-sided compensation. 9. Dr Dias accepted the applicant's history that he continued to struggle with ongoing symptoms of pain, stiffness and discomfort affecting various parts of his body including his knees on a continual basis over the course of the past 12 months following the subject work-related accident. Dr Dias on examination noted a significant antalgic gait pattern favouring the left lower limb. He noted the right knee was tender to palpation. 10. In respect of a diagnosis or finding of stiffness in the right knee, in my view the report of

Dr Dias should be read as a whole, with reference to his acceptance of the applicant's history of stiffness in various parts of his body as a result of the subject injury, including his right knee. 11. Dr Dias's findings on examination included a notation of a significant antalgic gait pattern favouring the left lower limb, which in my view is in accordance with the applicant's evidence that he favoured his left knee by compensating for his right knee. This notation on examination by Dr Dias is also in accordance with the clinical note of Dr Kako of

15 November 2023, referred to above. 12. It is not necessary for the opinion of Dr Dias to correspond with complete precision to the proposition upon which he has based his opinion, that is that the applicant compensated on his right side for the left knee pain. Dr Dias observed an antalgic gait pattern favouring the left lower limb and stated that the symptoms he observed in the right knee were secondary to an acute soft tissue injury. In my view this represented a fair climate[2] for the opinion that he expressed. 13. Further, the report of Dr Dias should be read together with the other evidence noted above, that is the applicant's statement and also the clinical note of Dr Kako of 15 November 2023. That is, a deficiency in this part of his report can be "made good by other material, either in another report or in oral evidence"[3]. In this case what might be seen as a deficiency, which in any event I do not accept, is made good by the clinical note of Dr Kako of 15 November 2023. 14. The relationship between the right knee symptoms and the left knee injury, that is the overcompensation of the right knee as a result of the pain in the left knee, is in the circumstances of the matters noted above such an obvious connection that it requires no further explanation by Dr Dias.[4] 15. It is not determinative that there are no radiological findings of pathology in the right knee in the context of a claim for a consequential right knee condition. It is not necessary for the applicant to establish that he suffered injury to his right knee. All that is required is that the applicant establishes that the symptoms and restrictions in his right knee have resulted from his left knee injury.[5] As was observed in Kooragang Cement Pty Limited v Bates,[6] "what is required is a common sense evaluation of the causal chain". 16. In this case, the causal chain was that following the injury to his left knee on 2 August 2023 the applicant complained of bilateral knee pain, left worse than the right, and on

15 November 2023 it was noted in accordance with the applicant's statement that there was right-sided compensation, and Dr Dias also noted a significant antalgic gait pattern favouring the left lower limb. 17. At this point, it is necessary to turn to the opinion of Dr Rimmer. 18. In summary, Dr Rimmer did not accept the applicant's complaints of pain and restrictions generally, characterising them as abnormal illness behaviour or malingering, and a lack of complaint in respect of the right knee. Dr Rimmer did not accept that the relevant imaging demonstrated pathology that supported complaints of pain in the cervical and thoracolumbar spine. 19. In my view, the observations of Dr Rimmer are not in accordance with the clinical and medical evidence. The clinical notes of Dr Kako recorded and accepted continuing complaints of pain in the neck, the back and both knees. Dr Singh accepted and recorded significant and continuing upper and lower back pain, which he related to the subject injury and findings on imaging and examination. Mr Nguyen noted and accepted severe pain in respect of the neck, back and knees. Mr Hurmoz noted and accepted continuing complaints of pain. Dr Dias recorded and accepted continuing complaints of neck, upper and lower back and bilateral knee pain, which he related to the subject injury. This evidence in my view supports genuine complaints of pain by the applicant.

In my opinion, this evidence also supports continuing complaints of right knee pain, contrary to the history recorded by Dr Rimmer.

Accordingly, I do not prefer the opinion of Dr Rimmer, either as to the right knee, or generally.

In respect of the claimed psychological condition, the respondent submitted that the only evidence in support was the applicant's statement and some notes from a psychologist but no report. It was submitted that there was no diagnosis and there was nothing to suggest that there was a psychological injury aside from a mere description of psychological symptoms. It was submitted that there was no medical evidence in support of a psychological injury from a psychiatrist. It was submitted that any such opinion should have regard to the prior history of the applicant leading up to his arrival in Australia.

I do not accept the submissions of the respondent. As noted above, the initial certificate of capacity related an acute stress disorder to the subject injury. The certificate of

24 October 2023 recorded that on 24 August 2023 there was "sever insomnia, frustration and panic attack..."

Thereafter, the clinical records noted a history of acute stress disorder, severely low mood and anxiety, and a deterioration in mental health. Mr Hurmoz, psychologist, recorded a similar history and provided a diagnosis of "MDD", which I have inferred from the context as being a reference to major depressive disorder.

The referral letter dated 14 June 2024 of Dr Kako in my view provided a diagnosis of severe depression, anxiety, stress disorder, panic disorder and self harm ideation, which he related to significant pain in the back following a workplace injury and subsequent mental health deterioration. In my view, the diagnosis provided by Mr Hurmoz supports this diagnosis. I do not accept the submission that there were two different diagnoses, as in my view the diagnosis of Dr Kako, which included severe depression, is not inconsistent with that of

Further, Dr Dias noted and identified SNRI antidepressant medication treatment. Although

Dr Dias is not a psychiatrist, in my view a medical practitioner is qualified to identify this medication.

1. There was no evidence to contradict either this diagnosis, or the view that it followed and resulted from the subject injury. Mr Hurmoz noted that there were no prior mental health issues. There was no evidence to contradict this observation.
2. The respondent also submitted that there is also an onus on the applicant to show whether psychological injury is primary or secondary. I do not accept this submission. Presumably this is a reference to the deemed statutory distinction between primary and secondary psychological injury that is contained within division 4 of part 3 of the Workers Compensation Act 1987 (the 1987 Act), particularly s 65A. That distinction is made for a claim for lump sum compensation under that division of the 1987 Act, and it applies only within that context. The current proceedings are for a claim for weekly benefits, and so the distinction does not apply, in my opinion.
3. The claim in these proceedings is for psychiatric or psychological injury. Having regard to the common sense approach to the causal chain, in my view the psychological symptoms of acute stress disorder were noted immediately following the subject injury by Dr Kako, with subsequent recorded mental health deterioration, severe pain, and leading ultimately to the diagnosis given by Dr Kako, supported by the intervening diagnosis of Mr Hurmoz. This in my view establishes the necessary causal chain to find that the psychiatric condition or injury suffered by the applicant resulted from the subject accident.
4. The submissions by the parties seemed to refer to psychiatric or psychological "injury" in these circumstances. However, the respondent's submissions were directed to its assertion that the material relied upon by the applicant was insufficient and descriptive and did not support a finding in the applicant's favour. The applicant submissions appeared to be directed to both injury and a consequential condition.
5. On the evidence before me, the letter of referral dated 14 June 2024 by Dr Kako pointed to the stated psychological diagnoses resulting from pain in the lumbar spine sustained as a result of the injury on 2 August 2023. Having regard to the principles arising from Kooragang and as discussed in Moon and Kumar, in my view the applicant's psychological symptoms, as identified by Dr Kako, resulted from the injury of 2 August 2023.
6. In relation to the claimed GORD condition, the respondent pointed to a lack of evidence as to where such a diagnosis arose. The applicant correctly acknowledged a paucity of evidence in this regard, but pointed to a referral to a gastroenterologist as support.
7. I accept the respondent's submissions. The applicant said his symptoms of reflux, nausea, vomiting and persistent heartburn were due to medication intake. The referral to the gastroenterologist was a letter by Dr Kako to Dr Koo dated 17 March 2025. It simply requested opinion and management of significant bowel motion irregularities with report of recurrent bloating, intermittent constipation and diarrhoea. Dr Kako believed that the symptoms were due to mental health deterioration subsequent to injury but requested Dr Koo to consider ruling out any other causes and red flags. There was no other evidence.
8. I am not satisfied that the applicant has discharged his onus of establishing a GORD condition and any relationship with the subject injury. There was no medical evidence to support what the applicant said in his statement as to the onset and nature of the claimed GORD condition.
9. In respect of capacity, the respondent submitted that:

(a) the opinion of Dr Dias as to capacity was based upon not only the accepted injuries, but also all body parts and the disputed conditions including the psychological condition and the GORD condition as it related to the heavy use of medication;

(b) there was a marked contrast between the examinations by Dr Singh and Dr Dias and that there was no explanation for that marked contrast;

(c) although Dr Singh was of the opinion that the applicant had no capacity for work resulting from his lumbar spine condition, by the later time that Dr Dias examined the applicant it was the opinion of Dr Dias that there was no capacity for work for all the conditions assessed and therefore the contribution of the lumbar spine condition to capacity was accordingly a much smaller component by the time of assessment by Dr Dias, and

(d) Dr Rimmer provided the best explanation in his opinion for capacity when he found an examination that from a physical perspective the applicant is fit for pre-injury duties with immediate effect and that the overwhelming barrier to the applicant returning to work is abnormal illness behaviour and malingering.

1. In relation to the opinion of Dr Rimmer, I have not preferred his assessment and opinion generally for the reasons given above. Further, the opinion of Dr Rimmer was in my view correctly criticised by the applicant. The observations by Dr Rimmer in respect of abnormal illness behaviour were in my view not sufficiently explained and vague at points, such as with respect to movement from the waiting room to the examination room.
2. Additionally, I have found that the applicant's right knee and psychological conditions resulted from injury on 2 August 2023. There was no evidence before me to suggest that the applicant had sustained incapacity as a result of a GORD condition.
3. In my view, Dr Dias referred to both the applicant's shoulders, but attributed symptoms to referred pain from the cervical spine. He also diagnosed an acute concussive closed head injury as a result of the subject accident, and continuing symptoms, although that injury was not relied upon in these proceedings.
4. Dr Dias also pointed to the applicant's heavy daily use of analgesia, which he noted was the combination opioid analgesic medication Panadeine forte three tablets three times daily for management of chronic pain associated with his injuries. Dr Dias noted on examination that the applicant sat throughout the history taking component of the consultation in a significant amount of discomfort, standing up on two occasions to stretch his lower back, mid-back and cervical spine regions.

In my view, these findings are not inconsistent with those recorded by Dr Singh, who noted pain in the lower and upper back, with the back pain being noted as continuous and significant. By 19 March 2024, Dr Singh was of the opinion that the applicant was unable to work because of the lumbar injury and lower back pain with leg pain.

I do not accept the respondent's submissions that there was a marked contrast between the examination findings of Dr Dias and Dr Singh. The former examined and considered all injuries, while the latter examined and considered the back and lumbar spine, but Dr Dias's view that the applicant had no capacity due to the injuries he considered does not exclude the conclusion that a subset of those injuries, that is the back and lumbar spine, has alone resulted in there being no capacity for work, as opined by Dr Singh.

While Dr Dias found marked restriction of range of movement in the lumbar spine, and

Dr Singh in his initial report did not, it is necessary to consider all of the reports of Dr Singh. The range of motion findings by Dr Singh, were initially noted as normal in December 2023, and were not noted in later reports. Dr Singh attributed significant and continuous pain to disc herniation in the lumbar spine, and he assessed capacity as noted above. In my view, consideration of the opinion of capacity provided by Dr Singh should have regard to the totality of his reports, and should not be limited to the range of motion findings on initial examination.

I have accepted and found that the applicant's psychological and right knee conditions resulted from the injury of 2 August 2023. Thus, Dr Dias in his opinion as to capacity considered accepted injuries or conditions in respect of the applicant's cervical spine, thoracic and lumbar spine, both knees and psychological condition. He also considered analgesic medication intake for chronic pain associated with the applicant's injuries, which in the clinical notes of Dr Kako were recorded as being for back pain. The applicant's shoulder pain was regarded by Dr Dias as being referred pain from the neck.

The only matter not claimed in these proceedings was an acute concussive head injury diagnosed by Dr Dias, with continuing chronic headaches, fatigue and difficulty with concentration and short term memory. Although the contribution of the head injury to capacity was not explained by Dr Dias, it seems to me on a broader reading of his report that Dr Dias recorded the head injury as one among many injuries and conditions, with no prominence given to that condition.

On balance, in my view the opinion of Dr Dias supports a finding of no capacity for work resulting from injury sustained on 2 August 2023, and conditions resulting from that injury, to the applicant's cervical spine, thoracic spine, lumbar spine, both knees, and psychological condition. The psychological condition was expressed by Dr Dias as an insurmountable barrier to re-entry into the workforce, which I accept as contributing to the applicant's incapacity for work, having regard to the requirements of s 32A of the 1987 Act, that is the nature of his incapacity viz suitable employment, in addition to all the other accepted body parts.

In my view, the above evidence also supports my finding that in respect of all of the injuries and conditions that have been accepted or found as resulting from the injury of 2 August 2023, all such injuries and conditions have continued to date.

The opinions of Dr Singh and Dr Dias support my finding that the applicant has, and has had on a continuing basis since 2 August 2023, no current work capacity as a result of injury sustained in the course of employment on 2 August 2023. I find that the applicant is not able to return to work, either in his pre-injury employment or in suitable employment.

Pre-injury average weekly earnings (PIAWE) were agreed at $1,481.96. This will be subject to the required indexation increases from time to time.

There will be an award pursuant to s 37(1) of the 1987 Act that the respondent pay the applicant $1,185.57 per week (and as indexed) from 19 February 2024 to date and continuing, in respect of PIAWE of $1,481.96 (and as indexed).

[1] [2009] NSWCA 227 at [2].

[2] 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).

[3] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 at [92].

[4] Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [88]- [89], discussed in Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon) at [49].

[5] Moon at [48], Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [49].

[6] (1994) 35 NSWLR 452 at 464.