"I was offered a clinical position at Mt Druitt Hospital as a registered nurse performing ECGs, managing histories, educating patients and taking blood samples. I accepted the position and continued to work there. I subsequently ceased working at Mt Druitt hospital as driving to work was too painful for my back and it was aggravating my symptoms so I decided to retire out of my own free will.

On 13 May 2014, I consulted with Dr Therese Roberts at Hills Family General Practice and she issued me with a certificate of incapacity stating that I was totally unfit to continue working as the result of my chronic and debilitating pain caused by my work injury on 23 August 2010."

1. In a report dated 1 May 2013, orthopaedic spinal surgeon, Dr Randolph Gray, stated:

"Her right leg symptoms continued to be fluctuating. She reports increasing symptoms down her right leg in the L5 distribution with activity. She also continues to have quite severe back symptoms.

I have described to her once again the pathology that I have seen on an MRI scan, which is lateral recess stenosis, and we should have also discussed the possible response to surgery with regard to her symptoms in her right leg, which should be that of improvement. However, I have reiterated, once again, that her lower back spasms will not respond to surgery and, in fact, can possibly get worse after surgery.

I have steered her away from surgical intervention and advised her to pursue a more conservative approach, at this stage, given that her symptoms are somewhat fluctuating and there are times where she is reasonably comfortable.

I also understand that her employment has currently been temporarily terminated and her employer is looking for suitable employment for her."

1. On 13 May 2014, general practitioner (GP), Dr Therese Roberts, issued a certificate stating:

"This is to certify that Ms Gretel Hodges is totally unfit to continue working as the result of her chronic and debilitating low back pain which is the result of a workplace injury. This advice is effective immediately from 13 May 2014."

1. In a report dated 23 November 2016, rheumatologist, Dr Ana Ananda, prepared a report which stated:

"She has also been evaluated for a recent flare of lower back and right hip pain. Fortunately, the MRI scan of the lumbar spine did not demonstrate any new changes on 27.09.16 with possibly only a small focal posterior annulus tear at L4/5 with a synovial cyst from the inner margin of the left L3/4 facet joint."

1. Consultant psychiatrist, Dr Richa Rastogi, prepared a report on 11 July 2017, which reported:

"She sustained a work related back injury and had to retire on medical grounds in 2014. She continues to persistent chronic pain. This functional restriction has impacted her sense of self and she has always been house proud and her inability to maintain this functioning is the last straw for her emotional decline. She is stuck with resentment and disappointment and feeling of failure. She has self-loathing thoughts and loss of her job has left her with no avenues to escape."

1. The notes of a consultation on 31 October 2019 made by adult and paediatric spine surgeon, Dr Brian Hsu recorded a history as follows:

"She has been experiencing significant back and leg pain since 2010 after lifting a deceased patient. Back pain is rated 6-9/10 in severity and leg pain is rated 6-9/10 in severity in both legs, but more so on the right than the left. Her non operative treatment has included physiotherapy, medications, TENS machine, hot packs, ultrasound and previous spinal injections. She denies any bowel or bladder disturbance, fevers, weight loss or loss of appetite. Her main complaint is difficulty with ambulation due to the back and leg pain."

1. On 8 August 2023, Dr Hsu responded to a questionnaire from the applicant's solicitor regarding the surgical procedures he had performed. Dr Hsu stated:

"Mrs Hodges had been experiencing significant back and leg pain since 2010 after lifting a deceased patient. I felt that she had exhausted non operative treatment and surgical intervention was reasonably necessary."

1. On 12 July 2024, the applicant's GP, Dr Nuwan Dharmaratne, issued a certificate certifying the applicant as having permanent incapacity from 27 January 2013.
2. On 12 October 2024, Dr Dharmaratne responded to a questionnaire from the applicant's solicitor. Dr Dharmaratne was asked for an opinion on the applicant's incapacity for work in the period from 23 August 2010 to 26 April 2018. Dr Dharmaratne responded:

"Please note I have been Mrs Hodges' GP from July 2020. On review of her file, I can see that other practitioners had assessed she did have capacity to work (with restrictions) for some of this period. From my understanding of the notes available to me, Mrs Hodges was unable to continue any form of work from May 2014."

1. The applicant referred to the Certificate of Determination issued in matter W3409/23 and submitted that it had been determined that there was a continuous chain of causation from the date of injury until time the applicant underwent the series of surgical procedures that resulted in the assessment of 40% WPI.
2. The applicant referred the Commission to her statement evidence with regard to the nature of the injury. The applicant's employment at Blacktown Hospital was terminated in May 2013 as suitable duties were no longer available. Thereafter she continued with lighter work at Mount Druitt Hospital.
3. The applicant submitted that the performance of modified duties was consistent with a continuing injury. The applicant made every effort to remain at work notwithstanding her injury. Eventually, the applicant found that driving to work was too painful for her back and aggravated her symptoms. The applicant decided to retire and, on 13 May 2014, consulted Dr Roberts at Hills Family General Practice who issued her with a certificate of capacity stating that she was totally unfit to continue working as a result of the work injury on

23 August 2010. 4. The applicant noted that the certificate was attached to the Application to Resolve a Dispute. The opinion expressed by Dr Roberts in that certificate was adopted by Dr Dharmaratne who said it appeared that the applicant had not had any capacity to work since May 2014. The applicant submitted that this was the only direct evidence with regard to the applicant's incapacity and there was no evidence to contradict it. 5. The applicant referred the Commission to other treating evidence from around the period of weekly compensation claimed and submitted that it was consistent with the applicant having no current work capacity. 6. The applicant referred to the report of Dr Gray, dated 1 May 2013, in which he referred to the applicant continuing to have quite severe back pain and increasing symptoms down the right leg. The applicant submitted that Dr Gray's report identified significant pathology and symptomology and was consistent with the applicant reaching a point of no capacity approximately one year later. 7. The applicant also referred to the report of Dr Ananda, dated 23 November 2016, describing a recent flare of lower back pain and right hip pain. The applicant submitted that this was evidence of significant, persisting symptoms in the lower back. 8. Dr Rastogi prepared a report on 11 July 2017 referring to the back injury, noting that the applicant had to retire on medical grounds in 2014. The applicant continued with persistent chronic pain and functional restrictions so severe as to impact her mental health. 9. The applicant submitted that her own evidence was that she was unable to continue working due to her back injury. The applicant was certified as having no current work capacity at the commencement of the period of weekly compensation claimed. Ongoing symptoms were reported in the treating medical evidence thereafter. The pathology at the applicant's lumbar spine was found to have continued until the time of the surgeries commencing in 2020. 10. The applicant submitted that the Commission would be satisfied that she had no current work capacity for the entire period of the claim. Although the medical evidence described other medical conditions, they were not relevant to the claim. There was no evidence of a novus actus interveniens and no countervailing evidence.

1. The respondent referred to the applicant's statement evidence and noted that the applicant had indicated that in 2013 driving to work became too painful for her. The respondent noted that this was not a complaint about the applicant's ability to perform the work itself. The problem was driving to work.
2. The respondent submitted that the certificate issued by Dr Roberts in 2014 was the only medical evidence specifically dealing with the applicant's back injury and the incapacity resulting from it. Over the next four years, there was no evidence from any of the applicant's doctors regarding her capacity for work in light of the back injury.
3. The respondent submitted that the applicant had sought to make out a case of "no current work capacity" during those four years by inference from evidence of doctors treating the applicant for non-work-related conditions. The applicant relied on reports from a psychiatrist and rheumatologist, neither of whom were in a position to comment on incapacity resulting from a back injury.
4. The respondent submitted that there was a multiplicity of conditions affecting the applicant's capacity to perform work.
5. The respondent referred to the report of an MRI scan on 27 September 2016 and submitted that it did not demonstrate any significant changes. The respondent submitted that the incapacity the applicant now experienced did not manifest until the multiple surgeries performed by Dr Hsu.
6. There were multiple reasons why the applicant could not continue with employment including, osteoarthritis affecting multiple body parts, inflammatory poly arthropathy, osteoporosis and carpal tunnel syndrome. The respondent submitted that the Commission would not be able to discern from the treating evidence incapacity resulting from the back injury.
7. The respondent submitted that the references to ongoing complaints relating to the lower back identified by the applicant's submissions fell short of satisfying the evidentiary onus of establishing that there was a total incapacity resulting from the 2010 injury in the relevant period.
8. The respondent submitted that no comfort would be gained from Dr Robert's certificate as it was expressed in the present tense. Dr Roberts gave no indication that the applicant's condition would continue indefinitely into the future.
9. The respondent submitted that the applicant had failed to discharge her evidentiary onus and there should be an award for the respondent.

1. The applicant submitted that the respondent's submissions were founded upon an inaccurate view of the law. It was not necessary for the applicant to demonstrate that her incapacity resulted "solely" from the work injury. The entirety of her incapacity resulted from the work injury provided that there was a material contribution from the injury. The applicant referred to the decision in Murphy v Allity Management Services[1] in this regard.
2. The applicant submitted that if it was established that the applicant had a condition, the evidentiary onus shifted to the respondent to establish some change to that condition. No evidence of any change in the applicant's condition had been presented by the respondent. The applicant referred to the decision in Purkess v Crittenden.[2]

1. Section 9 of the 1987 Act provides that a worker who has received an 'injury' shall receive compensation from the worker's employer in accordance with the Act.
2. Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, the compensation payable shall include a weekly payment during the incapacity.
3. The applicant in this case claims weekly compensation from 13 May 2014 to 26 April 2018, pursuant to ss 37(1) and 38(6) of the 1987 Act, on the basis that throughout that period she was totally incapacitated as a result of her work injury.
4. Consistently with Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW,[3] the parties have agreed that as a result of the assessment of 40% WPI by Medical Assessor Dixon, s 39 of the 1987 Act does not apply to bring the applicant's entitlement weekly compensation to an end after 260 weeks. The applicant's entitlement to any weekly compensation did, however, cease 12 months after reaching retirement age pursuant to s 52 of the 1987 Act, on 26 April 2018.
5. As the assessment of impairment occurred after the period of weekly compensation claimed, consistently with Meat Carter Pty Ltd v Melides,[4] the applicant was not, during the relevant period, a "worker with highest needs".
6. Section 37(1) of the 1987 Act as it applies in this case provided:

"The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of:

"The weekly payment of compensation to which an injured worker who has no current work capacity is entitled under this section after the second entitlement period is to be at the rate of:

1. The expression "no current work capacity" was defined in s 32A of the 1987 Act as follows:

"no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment."

1. The expression, "suitable employment" was also defined in s 32A of the 1987 Act as:

"suitable employment, in relation to a worker, means employment in work for which the worker is currently suited -

(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and

(ii) the worker's age, education, skills and work experience, and

(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and

(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and

(v) such other matters as the Workers Compensation Guidelines may specify, and

(i) whether the work or the employment is available, and

(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and

(iii) the nature of the worker's pre-injury employment, and

(iv) the worker's place of residence."

1. In Wollongong Nursing Home Pty Ltd v Dewar[5] Roche DP commented on this definition:

"However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that 'suitable employment' must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker's 'inability arising from an injury'. Suitable employment means 'employment in work for which the worker is currently suited' (emphasis added).

The word 'employment' is not defined in the legislation. Its common meaning is 'the state of being employed'. However, 'worker' is defined. It means, subject to specified exclusions, 'a person who has entered into or works under a contract of service or a training contract with an employer' (s 4 of the 1998 Act). In context, the phrase 'employment in work', in the definition of suitable employment, 'in relation to a worker', must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited.

Therefore, the determination of whether a worker is 'able to return to work in suitable employment' is not a totally theoretical or academic exercise and Mason P's reference to the 'eye of the needle' test may still be relevant in many cases. To use his Honour's example, a labourer who is rendered a quadriplegic may well be able to perform tasks using only his voice. However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer's obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment."

1. It is the applicant who bears the onus of establishing, on the balance of probabilities, that she had no current work capacity throughout the period of weekly compensation claimed.
2. One of the primary challenges for the applicant in discharging her onus is the lack of contemporaneous evidence regarding the extent and nature of any incapacity resulting from the injury on 23 August 2010 during the period in question. The respondent has submitted that the state of the evidence is such that the applicant is unable to discharge her evidentiary onus.
3. In considering this question, I have borne in mind the requirements of r 73 of the Personal Injury Commission Rules 2021, which provides:

"The appropriate decision-maker for applicable proceedings must, when informing itself or themselves on any matter in the proceedings, have regard to the following principles -

(a) evidence should be logical and probative,

(b) evidence should be relevant to the facts in issue and the issues in dispute,

(c) evidence based on speculation or unsubstantiated assumptions is unacceptable,

(d) unqualified opinions are unacceptable."

1. I have also considered the comments of Keating J in Department of Education and Training v Ireland:[6]

"... the Arbitrator wrongly directed himself that the matter could be decided based on the credit of Ms Ireland alone. The task before the Arbitrator was to weigh the evidence of Ms Ireland together with other objective evidence, or the absence of it. The Arbitrator erred in failing to give due weight to Ms Ireland's failure to make any report of injury to her back on the day of the accident. The absence of any documentary evidence from Dr Epps or Dr Baker to support any complaints of back pain, either contemporaneous to the accident or at least at intervals during the period between the accident and when it was first reported to Dr Wallace, is a significant omission in Ms Ireland's case."

1. This is not, however, a case where there is no logical or probative evidence to support the applicant's claim. The applicant has drawn the Commission's attention to her statement evidence which confirms that prior to the period in question the applicant had been performing light duties to accommodate her back injury. By May 2013, the applicant was terminated from her role at Blacktown Hospital due to the absence of suitable duties. The applicant was offered an alternative position at Mount Druitt Hospital, which involved light duties including performing echocardiograms, managing histories, educating patients and taking blood samples. The applicant continued to perform that work until May 2014.
2. The applicant's statement evidence was that she ceased work as driving to the hospital was too painful for her back and was aggravating her symptoms. As the respondent observed, this evidence does not by itself suggest that the applicant lacked capacity to perform the light duties she was given at Mount Druitt Hospital. Rather, it suggests that the drive to work was the problem.
3. The applicant's evidence must, however, be read together with the treating evidence from the applicant's doctors. On 13 May 2014, the applicant's GP, Dr Roberts, certified the applicant as totally unfit to continue working as a result of the chronic and debilitating pain caused by the work injury on 23 August 2010.
4. The certificate from Dr Roberts may be read together with the report of Dr Gray prepared a year earlier. Dr Gray, at that time, described fluctuating but increasing radicular symptoms, particularly with activity, and continuing "severe" back symptoms. The applicant was noted to be taking Endone each night. Dr Gray referred to MRI scans which showed lateral recess stenosis. Although Dr Gray suggested the applicant should avoid surgical intervention, this evidence generally confirms that the applicant continued with significant symptoms that were increasing and which worsened with activity.
5. A flare of lower back pain and persisting pathology on an MRI scan were reported by rheumatologist, Dr Ananda in late 2016. In mid-2017, the applicant's psychiatrist, Dr Rastogi, referred to the applicant having to retire on medical grounds following her work related back injury. Dr Rastogi described persistent chronic pain and functional restrictions which had impacted upon the applicant's mental health.
6. Other than these reports, there is no medical evidence regarding the nature of the applicant's back condition in this period to which I have been referred. The respondent has noted that neither Dr Ananda nor Dr Rastogi are spinal specialists. Neither doctor had commented directly on the impact of the applicant's back condition on her capacity to perform work.
7. The applicant was eventually referred to a spinal surgeon, Dr Hsu in late 2019. At the time of his initial consultation, Dr Hsu reported that the applicant had been experiencing "significant" back and leg pain since 2010. By that time, the applicant was experiencing radicular symptoms in both legs. The applicant reported difficulty with ambulation due to her back and leg pain.
8. In 2024, the applicant's GP since 2020, Dr Dharmaratne, after reviewing the applicant's file, expressed an opinion that the applicant was unable to continue any form of work from May 2014 onwards.
9. While the evidence on which the applicant relies to support her claim is minimal, importantly, it is not contradicted by any expert opinion or other evidence tendered by the respondent. I am satisfied on the evidence that the applicant's usual GP considered her to be totally incapacitated for any form of work on 13 May 2014. I am further satisfied that the applicant continued to experience symptoms of back pain and radiculopathy in the period that followed up until the time the applicant was seen by Dr Hsu and advised to undergo surgery. I accept the applicant's symptoms resulted in functional restrictions and, in particular, affected her mobility and ability to perform physical activity. The evidence indicates that the applicant's symptoms gradually worsened over time. There is no suggestion in any of the evidence before me of any improvement in the applicant's symptoms or functional abilities at any time in the period following the cessation of work.
10. At the time the applicant ceased work in May 2014, she was 62 years old. The applicant's statement evidence is that she qualified as a nurse in 1973 and had worked as a nurse since 1980. There is no indication that the applicant holds any other qualifications or has any other work experience.
11. It appears from the applicant's statement evidence that she was unable to return to her pre-injury duties following the work injury at any time, although she did return to work performing suitable, light duties. In early 2013, Blacktown Hospital, where the applicant had been employed for approximately nine years, could no longer offer her suitable duties. Although a light role was found at Mount Druitt Hospital, the travel to work aggravated the applicant's symptoms.
12. I am satisfied on the evidence referred to above that the applicant was, at no time in the period of weekly compensation claimed, able to return to work in her pre-injury employment as a registered nurse. The question that remains is whether the applicant was able to return to work in "suitable employment."
13. Although the evidence suggests that the applicant was physically capable of performing the light duties that had been found for her at Mount Druitt Hospital for a period of approximately one year prior to the cessation of work, I accept on the statement evidence and the evidence from Dr Roberts that the work injury rendered her physically unable to travel to the hospital in order to perform that work. The applicant was approaching retirement age and her education skills and work experience were confined to work as a nurse in a hospital or clinical setting. I accept that the roles, which the applicant's education, skills and work experience qualified her to perform, required her to travel in order to perform them.
14. The only medical opinion before me as to the nature of the applicant's capacity for work at the commencement of the claim indicates that she was totally unfit to perform any work. There is no evidence of any improvement but rather a continuation and deterioration of the applicant's condition in the four years that followed.
15. There are no return to work plans or any evidence from any occupational rehabilitation service before me.
16. I have considered the respondent's submissions that the medical evidence indicated that during the relevant period, the applicant was incapacitated by a number of concurrent

non-work-related medical conditions. These included a psychological condition, carpal tunnel syndrome, osteoporosis and osteoarthritis. 17. As the applicant's submissions noted, however, incapacity may arise from multiple causes. In _Calman v Commissioner of Polic_e[7] (Calman), the High Court referred to a passage in Salisbury v Australian Iron and Steel Ltd[8] at [20]:

"It is not necessary that the employment injury should be the sole cause of disability. It is sufficient if it is a contributing cause. It may be the catalyst which precipitates disability in a medium of disease. But when the stage is reached at which the employment injury ceases to produce effects and could therefore no longer be a contributing cause to any incapacity which may then exist, the right to compensation ceases."

1. Calman was referred to in McCarthy v Department of Corrective Services,[9] where Roche DP made observations concerning the appropriate test on causation for establishing an entitlement to weekly compensation:

"It is trite law that a loss can result from more than one cause (ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; (2009) 83 ALJR 986). The authority of Calman is also instructive on this issue. The Court held (at [38], excluding footnotes):

'Once the appellant established that his underlying anxiety disorder was an injury within the meaning of the Workers Compensation Act, he was entitled 'to compensation ... under [that] Act' upon proof that his total or partial incapacity for work resulted from that injury. The question then for the Tribunal was whether the appellant's incapacity was causally connected to the underlying anxiety disorder. It has long been settled that incapacity may result from an injury for the purposes of workers' compensation legislation even though the incapacity is also the product of other - even later - causes. Indeed, death or incapacity may result from a work injury even though the death or incapacity also results from a later, non-employment cause. Thus, in Conkey & Sons Ltd v Miller, Barwick CJ, with whose judgment Gibbs, Stephen, Jacobs and Murphy JJ agreed, held that it was open to the Workers' Compensation Commission to find from the medical evidence in that case 'that the death by reason of myocardial infarction when it did ultimately occur, 'resulted' from the work-caused injury of the first infarction, even if it could not be said that the final infarction was itself caused by work-caused injury'."

1. Similarly, in Accident Compensation Commission v CE Heath Underwriting and Insurance (Australia) Pty Ltd [10] Brennan J said:

"Similarly, liability under the Act to make weekly payments during incapacity or to pay a lump sum in redemption of that liability arises from each of the injuries which caused or materially contributed to the incapacity. Any employment in the course of which the worker sustained an injury causing or materially contributing to his incapacity attracts liability to the employer and to the insurer on risk at the time of the injury ...."

1. After careful consideration of the evidence and submissions, I am satisfied that the work injury on 23 August 2010 materially contributed to the applicant's incapacity in the period from 13 May 2014 to 26 April 2018.
2. I accept that during the relevant period, the applicant had a continuing inability to work in any employment for which she was suited as a result of the work injury. As a result, I am satisfied that, at all relevant times, the applicant had no current work capacity.
3. It follows that the applicant is entitled to weekly payments of compensation in accordance with s 37(1) of the 1987 Act for the balance of the second entitlement period based on the agreed PIAWE rate, as periodically indexed.
4. For the reasons given above, after the second entitlement period, I am satisfied that the applicant had no current work capacity and was likely to continue indefinitely to have no current work capacity. It follows that the applicant is entitled to weekly payments of compensation in accordance with s 38(6) of the 1987 Act, until that entitlement terminated in accordance with s 52(2)(a) of the 1987 Act.
5. There will be awards for the applicant accordingly.

[1] [2015] NSWWCCPD 49.

[2] [1965] HCA 34; (1965) 114 CLR 164.

[3] [2020] NSWCA 113.

[4] [2020] NSWCA 307.

[5] [2014] NSWWCCPD 55.

[6] [2008] NSWWCCPD 134.

[7] [1999] HCA 60; (1999) 19 NSWCCR 40.

[8] [1943] NSWStRp 50; (1943) 44 SR (NSW) 157.

[9] [2010] NSWWCCPD 27.

[10] [1994] HCA 68; (1994) 121 ALR 417.