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

1. There is no dispute Mr Mohammad Essale (the applicant) sustained injury to his lumbar spine on 28 February 2023 when transferring a client from a wheelchair to a car in the course of his work as a disability support worker with Concept Care Disability Solutions Pty Ltd (the respondent). The respondent's insurer accepted liability.
2. The applicant subsequently claimed lump sum compensation with respect to a 17% whole person impairment (WPI) comprising 12% impairment of the lumbar spine and 6% impairment of the left hip.
3. The respondent's insurer assessed the claim and declined to make an offer of settlement maintaining its qualified specialist found nil impairment of the lumbar spine and disputed "injury" to the left hip.
4. This dispute resulted in an Application to Resolve a Dispute (ARD) filed with the Personal Injury Commission (Commission).
5. The matter underwent the usual case management pathway proceeding to arbitration following conciliation impasse. Mr Loukas of counsel instructed by Ms Yar represented the applicant. An interpreter was present. Mr Grimes of counsel instructed by Mr Mitas represented the respondent. Mr Le was the insurer representative. There was no cross examination of the applicant and determination was made with reference to the ARD, the Reply and submissions of counsel.

1. The sole issue for determination is whether the applicant sustained an injury to his left hip on 28 February 2023.
2. Parties agreed subject to findings, the matter was to be remitted to the President for referral to a Medical Assessor.

1. The law relevant to this application is found in the Workers Compensation Act 1987 (the 1987 Act).

1. As liability for injury to the lumbar spine has been accepted, in the interests of brevity, these reasons will focus on the evidence as it pertains to the left hip only.

1. In a detailed statement dated 2 July 2025, the applicant indicates he was employed as a disability support worker between 2019 and 2024. The work was heavy and there is no dispute that he sustained a back injury on 28 February 2023 when transferring a client from a wheelchair to a car on an uphill driveway.
2. Prior history of left hip symptoms is denied. The applicant states that he injured his left hip on 28 February 2023 but then states (unedited):

"I believe that the initial treatment for my back and legs might have hidden the hip injury by easing some of the related pain. But as my condition worsened over a two-year period, changes in my posture and relying too much on my right side (because my left side hurt) led to an awkward way of walking. This likely caused my hip pain...[1]

It is clear that I sustained a work-related back injury, which then caused a consequential injury to my hip. Together, these injuries have resulted in a 17% whole person impairment, making me eligible for permanent impairment compensation."

1. The bulk of the statement, summarises treatment of the lumbar spine and sacro iliac joints with the first investigation of the left hip taking place 17 months post injury on

27 August 2024. Between December 2024 and April 2025 treatment consisted of chiropractic, physiotherapy, self-massage and exercise and topical creams. Medication was avoided. He has been referred to a rheumatologist. 2. The statement explains the impacts on employment, domestic duties, home care, travel, self-care and hygiene. The applicant is unrestrained in his criticism of Dr Rimmer, the respondent's qualified expert.

1. The ARD contains multiple reports of Dr Al Khawaja, neurosurgeon. On 24 July 2023, he diagnosed injury of the L5/S1 level, recommended activity modification and exercise physiology.[2] The history provided by the applicant was recorded as "in February he started getting lower back and left leg pain".
2. Dr Huang, neurosurgeon, assessed the applicant on 8 January 2024.[3] He took a history of injury to the lumbar spine with radicular pain down the left lower limb and into the lateral calf and thigh as well as numbness and paresthesia in the left quadriceps muscle when lifting a patient. The diagnosis was ongoing back pain due to pathology at the L5/S1 level. Left lower limb symptoms were said to have improved with physiotherapy but back pain was persistent. Cortisone injections were recommended. Follow up on 12 February 2024[4] confirmed the provisional diagnosis of lumbar back pain and it was postulated sacroiliac joints were the source of pain. Review on 24 June 2024 recorded ongoing left sided pain around the sacroiliac joint with cortisone injections again recommended.[5]
3. On 16 September 2024,[6] Dr Huang documented the diagnosis of "left L5/S1 facet and SIJ" with four day relief obtained from the cortisone injection into the L5/S1 and sacro iliac joints but reporting "he describes no change in the left hip pain". He suggested review by an orthopaedic surgeon for the hip
4. MRI scan on 9 March 2023[7] was performed for "low back pain, buttock discomfort, radiating into left leg with intermittent paresthesia" and identified pathology at the L5/S1 level. A further MRI of the lumbar spine on 3 November 2023[8] was undertaken for "low back pain". Findings were consistent with the earlier scan.
5. CT guided blocks of the L5/S1 facets and left sacro iliac joint on 13 July 2024 recorded "decreased pain immediate post procedure from 4/10 to 2/10".[9]
6. An MRI of the left hip requested on 1 August 2024 and undertaken on 27 August 2024[10] concluding features of femoroacetebular impingement which required clinical correlation.
7. Clinical notes of the A2Z Medical Centre contain copies of a number of Certificates of Capacity, largely issued on a monthly basis between 14 March 2023 and 5 September 2024.[11] The certificates record a diagnosis of "lower back pain - L5/S1 diffuse disc bulge L>R with left indentation of L5 nerve root".
8. All certificates record the injury as (unedited):

"pushing a wheelchair with larger patient up an elevated drive way and assisting in transporting from wheel chair to car (involves helping to lift patient). Felt sudden back pain, which progressively worsened and on the 1/3/2023 was unable to lift client and thus presented for medical review.

Nil diagnosed lower back issues, previous reported back pain which self-resolved reports when previously working with heavier patient & reports was pain free this year (no presentations for this)."

1. The certificate dated 5 September 2024[12] records:

"has received steroid injection - though reports ongoing significant and constant pain... intermittent radicular symptoms in left leg.... Patient is at pre injury hours with an excellent capacity above, however he does have some limitations secondary to his back pain and pathology. He reports ongoing stiffness and intermittent flare ups, which he reports physiotherapy helped the most in relieving....He has ongoing pathology & pain, therefore is not suitable for complete clearance & will require ongoing management."

1. Consultation records confirm the first presentation for back pain on 7 March 2023.[13] He again presented on 8 March 2023[14] where examination recorded "back pain, straight R leg raise painful ?disc impingement and palpable tenderness lower lumbar spine".
2. The records reveal the applicant attended the practice a total of 38 times between

8 March 2023 and 3 July 2024[15] complaining of back and sacro iliac pain and other general ailments unrelated to this claim. There is no mention of any hip complaint until 2 July 2024[16] when it was recorded (unedited):

"Persisting ongoing lower back pain & left hip region

1. On 12 November 2024, persisting sacroiliac symptoms resulted in referral to another neurosurgeon and orthopedic surgeon.[17] On 11 February 2025, due to persisting back pain referral to a rheumatologist was made due to "mild sacroilitis ?contributing to pain".[18]

1. Dr Porteous, occupational physician was qualified on 23 September 2024.[19] As regards to symptom onset it was recorded (unedited):

"with the second transfer, which was from the wheelchair to the car on that day, he noticed onset of lumbar back pain...

1. As regards "current condition" he reported (unedited):

"Mr Essale currently reports ongoing chronic left lower back pain referred into the left lateral buttock but not the hip rated 4 to 7/10 on a pain scale increasing with heavy lifting pushing, pulling or carrying or bending." [20] (my emphasis).

"The diagnosis is likely an aggravation/exacerbation of pre-existing mild degenerative change in the lumbar spine as well as in my opinion probably aggravation of a pre-existing left cam type femoroacetabular impingement with the MRI scan assessing this and diagnosing this on 27 August 2024 noting a 2 mm cystic focus in the femoral head consistent with pre-existing the stated date of accident on the balance of probabilities. There was also evidence of slight sacroiliac joint inflammation although the findings today did not show that that was tender while the findings showed restriction in the lumbar spine and left hip making it more likely than not that the conditions in the hip are the cause of the ongoing pain.[21]...

Mr Essale had onset of the lumbar back pain at work, and in my opinion, some symptoms from his left hip at work, 28 February 2023 and it has remained since. I therefore believe that it is more likely than not that he had a work-related injury, and it continues to date."

1. In a supplementary report dated 28 March 2025[22] he reports (unedited):

"I then note that an MRI of the left hip showed a pre-existing left cam-type femoroacetabular impingement. I note that this would at times produce left buttock left lateral lower back/buttock pain. I did and still consider this is contributing to his ongoing left lumbar/buttock pain, that started at work, and has never resolved since. There is a clear unbroken temporal association (connection) between onset of the left lower back pain at work and the current ongoing left lumbar/buttock are pain, that in my original report I diagnosed as a left hip injury, and it was an aggravation or exacerbation of a pre-existing left cam-type femoroacetabular impingement. This has never been 'broken'. Therefore I can only conclude that it is more likely than not, on the balance of probabilities, that his ongoing posterior hip/left lateral lumbar back pain and the left hip injury, that started with the subject incident at work, has never resolved since then, and has mainly been caused by his work activity. I therefore disagree with Dr Rimmers opinion that all of our client's current symptoms and complaints of the left hip are due to pre-existing pathology and for the reasons noted above there is clear evidence of a left hip injury at work."

1. Dr Rimmer, orthopaedic surgeon was qualified by the respondent. In his report dated

12 December 2024[23] he takes a consistent history of injury and treatment to the back and specifically weekly sessions of physiotherapy over a period of 18 months. The applicant's complaints were limited to the back. Examination of the left hip revealed findings identical to those in the right. He documents the MRI findings of the lumbar spine but not the hip yet concludes the MRI findings of the hip were normal. He concluded the applicant did not sustain an injury to the left hip either acutely or consequentially, stating there was "no diagnosis" to account for the left hip symptoms. 2. It was on the basis of this opinion that liability was denied with the s 78 notice disputing "injury" or a consequential condition.[24]

(a) the applicant was engaged in heavy and demanding work. His initial focus was the back and he did not appreciate that his pain in the hip arose from a separate injury at the same time. (Counsel referred to a photocopied image of the spine, pelvis, sacroiliac joint and hip acknowledging it did not form part of the evidence but served as an aide memoire submitting and demonstrating the L5/S1 joint appends the hip and "if there is pain at the site of this joint, then there is likely to be an injury to the left hip";)

(b) the applicant is credible and the absence of cross examination should result in a finding that he is a witness of truth;

(c) no weight should be attributed to Dr Rimmer's report. He concludes that the lumbar spine issues have resolved, an assessment which is unsupported by the bulk of the medical evidence. Given such demonstrated error, it follows his findings relating to the left hip are also incorrect;

(d) the evidence demonstrates the applicant has complained of pain which has been attributed to the L5/S1 facet joint and it was submitted this joint "is at the junction of the sacrum and the ilium which is the left hip";

(e) Dr Al Khawaja noted back and leg pain. The hip is between the back and leg. Given the anatomical location of the left hip to the lumbar spine, it is reasonable to accept that the applicant did not appreciate that he had a specific injury to the left hip, particularly as he now considers that the symptoms in the hip were "masked/hidden" due to the treatment for his back;

(f) the applicant accepts there was no formal complaint of hip pain until 2 July 2024 at which time his general practitioner records "persisting ongoing lower back pain and left hip pain". This entry implies symptoms in the hip were present for some time;

(g) the respondent may argue that the absence of notes is indicative of no injury, but the explanation offered by the applicant as regards the masking of symptoms on account of his lumbar spine treatment is cogent and explains this, and

(h) the opinion of Dr Porteous should be preferred as he reflects the history consistently, thereby allowing a finding of injury and referral to an assessor for assessment of the back and left hip.

(a) the claim is pleaded as a frank injury yet the applicant postulates that symptoms are consequential arising from a change in posture. His statement is internally inconsistent and unsupported by the medical evidence;

(b) the statement fails to account for the delay in reporting of symptoms for more than 16 months post injury. It is acknowledged the applicant considers his symptoms were masked/hidden by treatment to the spine but there is no medical evidence to support this contention either from the treating doctor, qualified specialist and physiotherapist where he has been attending weekly since his back injury;

(c) pathology and symptoms were identified in the sacro iliac joint but symptoms improved by 50% following a cortisone injection. Further the sacro iliac joint is separate to the hip and the fact that the symptoms of pain may be on the left side does not prove 'injury' or 'specific pathological change to the left hip due to events on 28 February 2023. In February 2025 (two years after the injury),

Dr Assem recommended rheumatological assessment after postulating mild sacroilitis was contributing to pain, despite the radiological findings in the hip;

(d) initial assessment by Dr Al-Khawaja and Dr Huang, both neurosurgeons do not report any complaints of hip injury rather repeat the wheelchair incident impacting the lumbar spine;

(e) there is acetabular impingement of the left hip recorded on the MRI findings of the left hip undertaken 18 months after the injury. The radiologist suggested clinical correlation. This has not been done. There are not reports by a treating orthopaedic or rheumatologist specialist despite the records suggesting referrals have been made. The records reveal the hip has not been the site of any active or passive treatment;

(f) the opinion of Dr Porteous is disjointed and does not provide a cogent or rational assessment of the hip. He takes a history of back pain as a result of workplace injury on 23 February 2023 but makes no reference to hip pain in that incident. He records the current condition as lower back pain referred into the left lateral buttock but "not the hip". He does not offer an explanation for the 16 month delay in reporting of hip symptoms and makes no reference to the "masking" of symptoms from therapies for the spine. He does not record the onset of hip pain. He adopts the investigation findings of acetabular impingement as a diagnosis concluding such were aggravated in the incident. He has ignored the contemporaneous clinical notes which do not record hip symptoms until July 2024 and concludes that the sacroiliac joint is not the source of symptoms, such a finding being inconsistent with the 50% reduction of pain following the injection (albeit short-lived) and the subsequent referral to a rheumatologist by Dr Assem;

(g) the claim that symptoms were masked or confused due to the proximity of the anatomy of the sacroiliac joint and radiologically identified femoroacetabular impingement is not supported by the medical evidence with specific treatment being rendered to the sacroiliac joint only. In any event, the sacroiliac joint and femeroacetabular joint are different parts of the anatomy;

(h) the report of Dr Rimmer should be preferred. His history is consistent with other assessors, in that the initial complaints of injury were confined to the back only. The examination findings of the left hip were equal to those of the right. He considered the MRI to be normal and concludes on the basis of his examination and review of the history that the applicant did not suffer a frank injury or pathological change, and

(i) the applicant has not discharged his onus with respect to left hip injury.

(a) Dr Rimmer concludes the MRI of the left hip was normal but does not refer to findings in his report. The MRI report confirms impingement and so his lack of diagnosis is medically inaccurate and should carry little weight, and

(b) the applicant accepts relief was obtained following an injection into the sacro iliac joint on 13 July 2024. Two weeks later on 1 August 2024 he presented to

Dr Assem with hip pain. This chronology should allow for an inference that the numbing of the pain in the sacro iliac joint uncovered the left hip pain. Counsel however conceded there was no medical evidence to support this.

1. Section 4 of the 1987 Act states that injury means personal injury arising out of or in the course of employment. Further s 9A of the 1987 Act requires employment to also be the substantial contributing factor for compensation to be payable (except in cases of disease injury) where it must be established that employment is the main contributing factor.
2. To establish injury, the evidence must demonstrate sudden or identifiable[25] (Kennedy) pathological change[26] (Castro). The word 'injury' refers to both the event and the pathology arising from it[27] (Lyons). Further, the issue of causation must be determined based on the facts in each case and the application of the commonsense evaluation of the causal chain (Kooragang).[28]
3. The onus of establishing injury falls on the applicant and the standard of proof is on the balance of probabilities. On this note, it is not necessary that I be satisfied to a degree of certainty but, by the same token, it will not be sufficient if I be merely satisfied that it is possible that the injuries were suffered in the manner alleged. When making findings, the Court of Appeal has identified that a tribunal of fact must be "actually persuaded" of the occurrence or existence of the fact before it can be found. (Nguyen).[29]

Did the applicant suffer an injury or an aggravation of a disease to his left hip?

1. Having considered the evidence and submissions above, I find the applicant has not established on the balance of probabilities with a degree of actual persuasion or affirmative satisfaction that he sustained an injury, i.e., a "physiological change or disturbance" in his left hip as defined in s 4 or s 4b (II) of the 1987 Act as a result of workplace events on

(a) despite being treated by Dr Al-Khawaja and Dr Huang and having multiple attendances on Dr Assem (over 40 consultations) and other practitioners of the A2Z general practice, the applicant was silent on any injury or symptoms in the left hip until 16 months post injury in July 2024. Even then the symptoms are referred to as "pain". Pain is a symptom and not a diagnosis and does not of itself establish a pathological or physiological change in the hip;

(b) On this point, I was cautious not to place too much weight on the clinical notes of treating doctors and specialists given their primary concern with treatment.[30] However, on review of the evidence, I conclude it improbable the specialists and general practitioner would have neglected to report any "injury" or symptoms to/in the left hip when they carefully recorded the mechanism of injury and symptoms in the back and subsequently the sacro iliac joint at multiple consultations. Counsel for the applicant indicated the entry in July 2024 recorded "persisting ongoing lower back pain & left hip region" suggesting an omission to record earlier complaints. I do not accept this noting the generation of multiple Certificates of Capacity for various periods, all certifying the applicant fit for light duties (which fluctuated according to his symptom profile) in relation to the lumbar spine and sacro iliac joints only. Further I find the above reference to "left hip region" is vague as it does not specifically refer to any pathological or physiological disturbance in the joint itself. This entry, which the applicant suggested was enough to demonstrate reference to hip injury, is not materially persuasive as it is vague;

(c) the applicant's statement initially refers to an injury to the back. It is silent on any left hip injury. Despite claiming injury simpliciter on 28 February 2023 he records symptoms in the hip were consequential to altered gait. This confusion as to onset of symptoms does not materially persuade me of "injury" to the left hip as pleaded;

(d) I find Dr Porteous report to be unpersuasive. This is because he records a consistent history of injury to the spine but is silent on the left hip. He specifically excludes symptoms arising from the left hip. He diagnoses aggravation or exacerbation of a pre-existing left cam-type femoroacetabular impingement presumably adopting radiological findings which have not been clinically correlated (despite the recommendation of the radiologist) as arising from events on 28 February 2023 despite not being given this history by the applicant. He fails to explain the onset of hip pain. He fails to explain the delay in reporting by the applicant. He attributes the pain to the hip joint and not the sacro iliac joint. I find this particular aspect of his assessment clearly contradicts the established relief obtained in the sacro iliac joint following the cortisone injection and the referral made by the general practitioner to a rheumatologist on account of sacro iliac pathology. These omissions cast doubt on the case theory pronounced by the applicant and again do not materially persuade me of 'hip injury' as claimed;

(e) I note the applicant's statement that his symptoms were masked/hidden by the rehabilitation and treatment he received for the spine. The mainstay of treatment was physiotherapy on a weekly basis for over 18 months. There is no report from the physiotherapist and no detail of treatment which successfully resulted in masking of what is now suggested to be significant hip pain. I find the argument of masking defies common sense as "masking" suggests symptom relief obtain by virtue the modality of treatment afforded, which is inconsistent with the applicants ongoing attendances at physiotherapy for over 18 months indicating symptoms were persistent. This is not suggestive of masking which would in my view only be successfully argued if the treatment was effective in alleviating the effects of the back injury;

(f) while I reject the masking argument, (given it defies commonsense), such rejection aligns with the lack of medical evidence suggesting "masking" as being responsible for the belated onset of hip complaints. I find this to be a self-serving theory advanced by the applicant presumably in response to the respondent's queries about the extended delay in reporting of symptoms in the hip;

(g) submissions inferred in a roundabout way, that the injury to the left hip was overlooked or underestimated by the applicant and his specialists who were neurosurgeons and not orthopaedists. An equally plausible explanation for the lack of attention to the left hip was that there was in fact no injury and that any symptoms that may have radiated to the lower limb were from the lumbar spine or sacro iliac joint. This is particularly so given that the applicant delayed in nominating injury to his left hip until 16 months post injury. I find the latter position plausible given the dearth of evidence on this point;

(h) much was said about the anatomy of the sacro iliac joints and its proximity to the hip which 'confused' and delayed the reporting of symptoms with a visual aide memoire demonstrating the anatomical sites forming part of the submissions. I reject the argument in the absence of supporting medical opinion and I found it nothing more than an unsupported bar table submission;

(i) I acknowledge the applicant's submission that little weight should be afforded to the report of Dr Rimmer. The mechanism of injury and initial sequelae recorded is consistent with the initial assessment of the general practitioner, Dr Al-Khawaja, Dr Huang and Dr Porteous. His findings on hip examination were equal on both sides (despite no injury claimed on the right). He reported the MRI findings of the left hip were normal but I note he does not summarise the findings in his report or confirm that he reviewed the images. I considered his findings with caution however nothing turns on this given the applicant's evidence has fallen short of meeting the onus, and

(j) I accept the applicant has pain in the lower limb which may include the hip region. Regardless, I find the applicant has not materially persuaded me on the balance of probabilities that he suffered injury to the hip within the definition of the 1987 Act.

1. For these reasons, there will be an award for the respondent in respect of the allegation of "injury" to the left hip.

1. For the reasons above, I make the findings and orders set out in page 1 of the Certificate of Determination.

[25] see Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45 and Military Rehabilitation and Compensation Commission v May [2016] HCA 19.

[26] Castro v State Transit Authority (NSW) [2000] NSWCC 12; 19NSWCCR 496.

[27] Lyons v Master Builders Association of NSW Pty Ltd (2003) 25NSWCCR 442 at [429].

[28] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR [463].

[29] Nguyen v Cosmopolitan Homes 2008 NSWCA 246.

[30] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34.