1. Liberty to the parties to apply regarding weekly compensation indexation increases, failing agreement.
2. General order pursuant to s 60 as to medical and treatment expenses in respect of injury to the applicant's back and his secondary psychological condition.

A brief statement is attached setting out the Commission's reasons for the determination.

1. Mr Steve Ehso Yaqow Al Kibbah (the applicant) claimed weekly compensation and medical expenses in respect of injury to his back and secondary psychological condition said to have resulted from injury on 27 March 2023 in the course of his employment with Ready Workforce (a Division of Chandler Macleod Group) Pty Ltd (the respondent).
2. The respondent disputed injury and capacity, among other matters.

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 Stockley of counsel, and the respondent by Mr Perry of counsel. The parties lodged written submissions in accordance with my directions.

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) Applications to Lodge Additional Documents dated 9 October 2025 and

13 October 2025, and attached documents.

1. There was no oral evidence, nor was leave sought to cross examine the applicant.

1. The following were referred to in submissions, which will be discussed below:

(a) CCTV footage on 27 March 2023;

(b) Video surveillance in October 2023, July 2024 and September 2024;

(c) applicant's statements dated 20 August 2023, 14 June 2024, 23 August 2024, 2

0 December 2024 and 2 July 2025;

(d) report of Dr Gehr, orthopaedic surgeon qualified by the applicant, dated

22 March 2025;

(e) reports of Dr Saboor, psychiatrist, consulted by the applicant for treatment, dated 26 May 2023, 26 April 2024 and 28 August 2025;

(f) reports of Dr Casikar, neurosurgeon qualified by the respondent, dated

21 June 2023 and 18 December 2023;

(g) reports of Dr Davies, neurosurgeon qualified by the respondent, dated

5 October 2024 and 14 November 2024;

(h) report of Dr Kako, treating medical general practitioner (GP) dated 19 July 2023;

(i) report of Dr Shiva, treating neurosurgeon, dated 29 April 2025;

(j) report of Mr Hurmoz, treating psychologist, dated 15 February 2024;

(k) Vocational Assessment report of Mr Girdler, dated 21 May 2025;

(l) clinical records of Fairfield Chase Medical and Dental Centre;

(m) MRI report dated 11 April 2023, and

(n) CT scan report dated 4 August 2020.

1. The hearing was conducted on the basis that the claim for injury was frank injury to the back on 27 March 2023, and secondary psychological condition.
2. The respondent attacked the applicant's credit, submitting that he was an untruthful witness. The applicant objected to this approach, submitting that this was not put to him in cross examination.
3. If implications or assertions of untruthfulness are not obvious from the evidence, then this will require them to be put to a witness in cross examination the implications that counsel proposes to submit can be drawn from the evidence.[1] It seems to me that this implication is not obvious from the dispute notices issued by the respondent. The dispute notices disputed an injurious event but did not allege untruthfulness.
4. In my view, in this context of CCTV and surveillance footage, untruthfulness connotes dishonesty or intentional falsehood. This interpretation of the respondent's submissions is confirmed, when it was further submitted that the applicant provided a statement that he knew was going to be used in his claim which was false. Leave to cross examine was not sought. I do not accept the respondent's submissions as to untruthfulness, as leave should have been sought.
5. If I am wrong, and in any event, I do not accept the respondent's submissions as to credit. There was no dispute that the applicant tried to lift a jammed lid and made repeated attempts to do so, to no avail. On close consideration of the CCTV footage, in my view these were a number of vigorous lifting attempts, not a minor incident as urged by the respondent.
6. The applicant said he felt immediate severe pain in his lower back. The respondent said this was not the case, relying upon the CCTV footage itself, and the comments of Dr Casikar and Dr Davies. However, both doctors did not say that the activity of the applicant could not have been injurious, rather they stated that they did not observe any physical display of pain or restriction, and therefore there was no injury, contrary to credit and a finding of injury.
7. The premise in the reasoning of Dr Casikar and Dr Davies, and indeed the respondent's assertion as to absence of any relevant display of pain on the CCTV footage, is that an absence of a display of pain or cracking sensation, or "objective signs", as per Dr Casikar, indicate there was no injury at the relevant time. While the applicant said that he felt those symptoms immediately, he did not say that he made any outward sign, rather he returned to working shortly afterward and worked for about a further 90 minutes before he felt too much pain in his back to continue. Dr Gehr opined that injury as reported was consistent with the CCTV footage.
8. In my view, the CCTV footage is not inconsistent with the applicant's statement, particularly his first statement and the histories recorded by Drs Casikar, Davies and Gehr. I have described this footage below. The absence of such signs are not determinative of this issue.
9. The CCTV footage before me was taken from a number of metres from the applicant. There was no sound recording. A large forklift vehicle and also another worker partially obscured the applicant as he made a number of vigorous attempts to lift. The length of the footage was about 45 seconds, of which less than about half that time was post incident and not obscured by the forklift and other worker, in which time he walked and moved, seemingly freely, but without engaging in strenuous activity or movement, and certainly not with any significant twisting or bending movements. The footage cut off in mid stride by the applicant as he seemed to move to another point, still in the field of view of the camera.
10. In my view, the CCTV footage establishes:

(a) at the material time the applicant engaged in a number of vigorous lifting movements, as he stated;

(b) the applicant was approached by a fellow worker to free the jammed lid, as he stated;

(c) the applicant communicated to the fellow worker about his difficulty with the jammed lid, and

(d) the work that the applicant performed had a not insignificant physical component involving manual lifting of the lids of pallet jacks, as the applicant stated.

1. In my view, the CCTV footage does not establish:

(a) there was no sound of a crack in the applicant's back. The footage had no sound recording, and

(b) there was no severe pain in his lower back. The footage was short, partially obscured for a period, somewhat distant in view, and cut off. This is not persuasive evidence, in my opinion.

1. The applicant said he later the same day noticed pains into his left leg when he decided to report the injury. This was not contradicted.
2. Further, the applicant said that he reported the injury to his team leader the same day when the pain became too much. He said he saw shortly afterwards his team leader and other workers viewing the CCTV footage of his injury and that they were making comments. He said he was offered the opportunity to be transported to hospital by ambulance. There was no statement from the team leader or other documentary evidence in respect of this report of injury or of these matters that was before me. The applicant was correct in submitting that there was no explanation as to its absence. Accordingly, I place weight on the applicant's uncontradicted evidence in this regard, and I accept it.
3. The applicant's evidence as to injury is not contradicted by lay or documentary evidence. In my view his evidence has accordingly greater weight, which I accept. I have not accepted the respondent's submissions as to credit, nor as to the CCTV footage. It follows that I prefer the opinion of Dr Gehr as to injury, as it is in accordance with my factual finding. I find that the applicant suffered injury to his lower back on 27 March 2023 in the course of his employment with the respondent.
4. As to the nature or diagnosis of the condition in respect of the lower back, the specialist medical evidence was:

(a) Dr Shiva was of the view that there was an L4/5 annular tear with disc herniation causing left-sided and right-sided L5 nerve root compression and an L5/S1 disc herniation causing left S1 nerve root compression, consistent with injury recorded in March 2023. A history of left leg pain, consistent with that noted above, was recorded;

(b) Dr Gehr was of the opinion that there was relevantly lumbar spine discogenic injury L5/S1, guarding, dysmetria and left radiculopathy, not in the nature of an aggravation of a pre-existing condition. A history of left leg pain, consistent with that noted above, was recorded. He noted a history back pain in 2020 and 2021 which had settled down, and also imaging of the lumbar spine in 2020;

(c) Dr Casikar opined that there was a disc prolapse at L5/S1, although on viewing the CCTV footage, he changed his view and said that was a spontaneous disc prolapse, not the result of injury on 27 March 2023. He did not say when or why there may have been a spontaneous prolapse. He noted no objective evidence supporting the applicant's assertion that he heard a crack in his back at the relevant time. I have found contrary to this proposition. I have not accepted this view as to causation, and

(d) Dr Davies was of the view that there had been an aggravation of pre-existing disc degeneration at L4/5 and L5/S1 resulting from injury on 27 March 2022, although he changed his view as to causation following review of the CCTV and later video footage. However, he was not unequivocal, as he said he did not believe the applicant has any significant ongoing pain as a result of the incident of

27 March 2023. He did not rule out that the subject incident may have caused injury, and he did not rule out that that injury may have resulted in some ongoing pain. His view was that the history of prior back pain in 2020, and similar scan findings pre and post 27 March 2023, meant that he did not believe that the subject injury was a substantial contributing factor to the diagnosed condition.

1. This necessitates consideration of the clinical records, particularly those of the Fairfield Chase Medical and Dental Centre, including those of Dr Gregor and Dr Hossein, and the Kenyon Street Medical Centre, Dr Kako, to which I was taken in submissions. Relevantly:

(a) on 4 August 2020 Dr Gregor noted acute back pain and pain in the left lumbar area radiating to the left lower limb. A CT scan of the lumbar spine was arranged;

(b) on 7 August 2020, Dr Gregor reviewed the CT and noted L5/S1 disc bulge. He recorded the back pain was bearable and there was pain radiating down the left lower limb. He referred the applicant for physiotherapy;

(c) there were no further relevant entries until October 2021, with notes on 5 and

14 October by Dr Hossein recording exacerbation of back pain, recommendation for exercise and issue of medical certificates, and

(d) there were no further relevant entries until a consultation with Dr Kako, on

29 March 2023, at which time he recorded injury on 27 March 2023 lifting a door/lid of "PT Machine", with middle and lower back pain radiating to left leg. This entry, two days after the subject incident, also supports the applicant's evidence of injury.

1. Additionally, Dr Kako in his report of 19 July 2023 recorded a history consistent with the evidence of the applicant and with the clinical notes.
2. In my view, the above notes are broadly consistent with the applicant's evidence and the histories recorded by Dr Gehr and Dr Davies. Both Dr Gehr and Dr Davies noted the 2020 CT scan and post 27 March 2023 imaging results.
3. It was the applicant's evidence that he performed his normal work until the injury of

27 March 2023, and that is consistent with the clinical records. There was no evidence in those records of any continuing, or even episodic, back pain in the period from October 2021 to 27 March 2023. 4. Dr Casikar and Dr Shiva did not record the history of earlier symptoms, although in any event I have not accepted the view of Dr Casikar as to causation. Dr Shiva recorded the history in the context of a treatment consultation in 2025 following the onset of significant lower back and left leg symptoms following the incident of 27 March 2023. 5. I prefer the view of Dr Gehr that there was injury to L5/S1 as a result of the incident on

27 March 2023. He considered the earlier symptoms, albeit with a general date of 2020, and did not accept the view of Dr Davies, outlined above. 6. I have not preferred the view of Dr Davies, as in my view he has not satisfactorily explained why the applicant performed his normal work, which included manual duties, from 2021 until the incident of 27 March 2023, without any report of back or leg symptoms, and why such symptoms persisted after 27 March 2023. He relied on his view of the CCTV footage, which I have not accepted, and of the video surveillance footage. 7. As to the latter footage, Dr Davies appeared to relate it to the effects of injury, along the same lines as in the respondent's submissions, which were directed to capacity. Dr Davies appears not to have been afforded the undisputed evidence of a secondary psychological condition, discussed below, although he did refer consultation with a psychologist and psychiatrist. 8. I also accept the opinion of Dr Gehr that the applicant's employment with the respondent was a substantial contributing factor to the injury sustained on 27 March 2023, particularly having regard to the prior symptoms having settled down, the performance of normal duties up until the incident of 27 March 2023, and the performance of duties in a physically demanding job, as well as the finding of discogenic injury on 27 March 2023 with left radiculopathy. 9. Before turning to capacity and the surveillance footage, it is necessary to consider the applicant's claim for a secondary psychological condition resulting from the claimed injury to his back on 27 March 2023. There were no submissions from the respondent and no evidence contrary to that of the applicant. The evidence before me included:

(a) referral Dr Kako to Dr Saboor dated 5 March 2024 for opinion and management of depressed mood and anxiety secondary to a work injury;

(b) Dr Saboor was of the opinion that the applicant suffers with chronic major depressive illness with anxious distress, chronic pain syndrome, and alcohol, nicotine and caffeine used disorder, secondary to the physical injury that he sustained at work due to pain and loss of function;

(c) Mr Hormuz treated the applicant from October 2023 to February 2024, and diagnosed major depressive disorder, with recommendation for psychiatric treatment and possible pharmacological treatment, and

(d) referral by insurer on 15 August 2023 to Dr MacDonald, psychiatrist, for assessment of the applicant. There was no report before me in that regard, nor any explanation as to its absence.

1. I find that the applicant suffered a psychological condition of major depressive illness, with anxious distress, chronic pain syndrome, and alcohol, nicotine and caffeine used disorder, secondary to the injury that he sustained at work on 27 March 2023.
2. I have viewed and considered the video surveillance footage that was before me, and which was the subject of submissions. The respondent made submissions that the surveillance showed the applicant had consistently acted contrary to his stated disabilities. I have considered the alleged instances of entering and driving a vehicle freely, of bending down and picking up rubbish, bending, carrying a bag, animated conversations, and confronting the surveillance agent.
3. The surveillance footage showed a number of instances of what in my view was fairly light physical activity. There was no evidence of what I regarded as strenuous or sustained physical activity or exertion. Dr Kako reviewed the surveillance footage and did not find movements inconsistent with diagnosis, including neuropathy of L5/S1 nerve distribution.

Dr Gehr's view was not dissimilar. 4. The applicant explained his confrontation with the surveillance operative in terms of his mental state and condition. I accept that explanation, having regard to the weight of uncontradicted medical evidence as to his psychological condition. I do not accept that this confrontation indicated organisational capabilities as submitted by the respondent. This is contrary to the weight of medical evidence, particularly psychiatric evidence. 5. As to capacity, I note:

(a) even if I were to form the view that the surveillance footage supported a view that there are implications for his capacity for work, which I do not, such footage in my view does not assist when considering the applicant's secondary psychological condition. There were no submissions in that regard;

(b) Dr Gehr was of the opinion that there was no capacity for work, based on his finding of discogenic injury with left radiculopathy, and with ongoing pain, contrary to Dr Davies view that hair dressing or barbering was suitable, on Dr Gehr's view of standing capacity not being sufficient for real world work;

(c) Dr Davies, as noted above, was of the opinion there was capacity for work, with restrictions he outlined;

(d) Dr Casikar, notwithstanding his changed view as to causation, did not change his view that the applicant was unfit for pre-injury duties, and the main barrier to upgrading the applicant's work capacity was mainly due to persistent verifiable neurological compression related to the disc prolapse;

(e) Dr Saboor was of the opinion that the applicant was totally incapacitated for any type of gainful employment having regard to the psychological injury, chronic pain syndrome, back injury, pain and loss of function, and

(f) Mr Girdler agreed that the applicant could perform some of the duties of a barber, provided it was on a self-employed basis as the reduced productivity likely to be caused by his need for postural change is unlikely to be acceptable to an employer. He agreed the applicant is incapable of sustaining work as a store person, or a painter decorator. He disagreed that the applicant could work in any form of technology work as he lacks the qualifications, skills or experience.

1. In my view, the applicant has no capacity to perform his pre-injury duties and no capacity to perform suitable duties as identified, or generally. In my opinion, the applicant has no such capacity as a result of his back injury on 27 March 2023. Dr Gehr was of this view, which I accept, as was seemingly Dr Casikar. Dr Kako appeared to have significant reservations as to whether there was any capacity for work. On balance, the medical evidence supports a finding of no capacity for work due to the subject back injury.
2. Even if it was the case that some capacity with restrictions applied in respect of the applicant's back injury, then in my view, there are no real jobs that could be said to be available to the applicant.[2] The prospect of real jobs in the applicant's circumstances was alluded to and not accepted by Dr Gehr and Mr Girdler.
3. Further, if by some chance a real job was available to the applicant in respect of his back condition, which I do not accept, then the applicant's secondary psychological condition, alone or together with the injury to his back, would in my view result in him having no capacity for work, based upon the uncontradicted opinion of Dr Saboor.
4. I find that as a result of injury on 27 March 2023, the applicant has no capacity to perform his pre-injury duties and no capacity to perform suitable duties, that is he has no capacity for work.
5. As to pre-injury average weekly earnings (PIAWE), the parties agreed it was $1,874.95. This amount must be increased as per indexation at the material times.
6. The claim for weekly compensation is from 2 January 2024, pursuant to s 37 until

22 September 2025, and from 23 September 2025 and continuing pursuant to s 38. There will be an award accordingly, pursuant to s 37(1) and s 38(1). 7. The applicant also sought a general order for treatment expenses for both physical and psychological conditions. There will be a general order pursuant to s 60 accordingly.

[1] New South Wales Police Force v Winter [2011] NSWCA 330 [81].

[2] Wollongong Nursing Home Pty Limited v Dewar [2014] NSWCCPD 55.