someone was stabbing me in my back. I was unable to get up and began crying. I was again referred to the Emergency Department of Concord Hospital."

1. The applicant stated that she commenced physiotherapy and consulted Dr Raoul Pope. She stated that she had been unable to work in any capacity since 21 July 2022. She stated that she lodged a workers compensation claim which was accepted by the insurer.

1. In a report dated 12 October 2023 (p1 Reply) following an injury management consultation, Dr Ron Muratore, sports and exercise physician, expressed the view that the applicant was not fit for her pre -injury duties as a cleaner, and would not resume those duties at any time in the future. He wrote: "This is not as a consequence of a work related injury but as a consequence of her underlying medical conditions. She has minimal transferrable skills and her command of English seems to be rudimentary."
2. Dr Muratore made a diagnosis of: (i) Right rotator cuff tear. This is age related and not caused by Ms Jandric's employment. Adhesive capsulitis, causally related to her diabetes.

(ii) Osteoarthritis of the right acromioclavicular joint, also aged related. (iii) Lumbar spondylosis, which is age related. (iv) Early peripheral neuropathy as a consequence of underlying diabetes mellitus. (v) Chronic pain syndrome. 3. Under current symptoms, Dr Muratore noted that the applicant described constant right sided back pain, which she localised from the distal thorax to the buttock, and was on the right of the midline. He wrote:

"Pain radiates to the anterior aspect of the right thigh and has radiated to the knee but never past the knee. She at times experiences pins and needles on the dorsum of the right foot. The pain is aggravated by walking for longer than 10 minutes, sitting for longer than 15 minutes, after which she has difficulty with standing without supporting herself. The pain is also aggravated by bending, showering and coughing."

1. Dr Muratore expressed the view that the applicant would not return to work with any employer in any form of work at any time in the future. He stated that this was not as a result of any work related injury but as a result of the medical conditions.
2. In a report dated 10 April 2025 (p12 Reply), Dr Ron Haig, consultant orthopaedic surgeon, noted that the applicant told him that she had hurt her back on two occasions. The first was prior to COVID-19 when she "bumped her back" against a wall. She attended the A & E Department at Concord Hospital where she works and was advised to rest and provided with medication. She attended her general practitioner and was off work for a while and then returned to work with a "little pain only". Dr Haig noted that there was a further episode in March 2022 when she had been scrubbing a toilet while bent over and when straightening up she experienced pain in the right low back area. He noted that she discontinued work and again attended the A & E Department of the hospital and then attended her own general practitioner. Dr Haig wrote: "She was prescribed Panadeine or Panadol Osteo. She was investigated with both an MRI and CT. She has continued to see her general practitioner for her pain has continued. She has not returned to work since then".
3. Dr Haig made a diagnosis of age-related lumbar spondylosis. Dr Haig was asked to provide an opinion regarding whether the injury had resolved and if current reported symptoms were a result of the reported workplace injury on the 13 March 2022. He wrote: "The nature of the injuries being what they were I believe they would soon have resolved and any ongoing symptoms were merely the natural history of existing lumbar spondylosis". He believed that the diagnosis of the injury was an exacerbation of her pre-existing lumbar spondylosis.

Dr Haig wrote: "Her injury caused an exacerbation of her pre-existing lumbar spondylosis. I believe this would have settled within a short space of time and her ongoing pain is merely the natural history of the underlying lumbar spondylosis". 4. Dr Haig did not believe the applicant was fit for work. He wrote: "I do not believe she will ever be able to return to her pre-injury role. She has significant back pain with much limited movement. At her age I do not believe she would be able to return to suitable employment." 5. Dr Haig was asked "Are there any other factors apart from Ms Jandric's claimed injury that is impacting her ability to return to work? If so, please provide your comment." He wrote: "There is age and general condition to be considered". 6. In a supplementary report dated 15 September 2025 (p 21 Reply), Dr Haig noted that he had re-read his original report dated 10 April 2025. He wrote:

"I note that the two work-related incidents were in fact quite minor. The first incident was when she "bumped her back" against a wall. The second incident was simply when she had been straightening up after being bent over.

I do not believe either of these incidents in themselves would cause any continuing back

pain, and indeed after the first incident, I stated, "She was off work for a while and then

I remain of the view that after the second incident, any pain caused by the mere act of

straightening up would soon have settled and any continuing pain three years later is due to the underlying lumbar spondylosis."

1. In a report dated 1 July 2025 (p 25 ARD), Dr Andrew Porteous, occupational physician, noted the following history:

"She had had a prior lumbar back injury, when, on 30 May 2020, she said she was taking a mop out of a bucket on wheels and it slipped away from her and she tripped backwards and had onset of low back pain after hitting a stainless steel bench in the utility room. With the ongoing lumbar back pain, she tried to keep working but could not. She reported it and attended the Emergency Department on 1 June 2020. I understand she was on restricted duties. She had a flare in November 2020. She had

physiotherapy throughout this time. She had improvement to the point that in 2021, she could return to normal duties. She said that she did have some ongoing lumbar back pain, but it was manageable.

Then, on 13 March 2022, she was cleaning a toilet which was blocked, and she had to bend over for a while and as she straightened up, she had onset of significant low back pain with pain down both legs. She could not work the next day because her back was even worse. She was seen in the Emergency Department at Concord Hospital. She said that she tried to do restricted duties but her back pain increased. She was off work for two months. She had physiotherapy. She had scans and saw Dr Raoul Pope.

After two months, she returned to work on restricted duties, but found it had increased her symptoms and she was placed off work again and was off work for about six weeks. She could not then return to work because of ongoing symptoms and she has remained completely off work since 21 July 2022."

1. Dr Porteous noted that the applicant complained of chronic lumbar back pain referred into the right thigh into the knee, limited walking to about five minutes before needing to rest, limit of 15 minutes for sitting and an inability to bend or get down low. He noted that the applicant was on prescribed medication for diabetes, hypertension and for hypercholesterolaemia and had recently been in hospital with shortness of breath and some renal dysfunction to assist with getting her diabetes under better control and to assess her renal function.
2. On examination, Dr Porteous noted she walked with a wooden walking stick with slightly wide-based and shortened gait. He wrote: "Today, examination of the lumbar spine showed marked restriction with 40% of expected extension, flexion to just the mid-thighs with 20° right and 15° left lateral movement with subtle dysmetria and loss of curvature."
3. Dr Porteous wrote:

"In my opinion, Ms Jandric is restricted from constant sustained sitting, from frequent or

constant sustained walking and standing, from moderate or heavy lifting, pushing, pulling or arrying and frequent light lifting, pushing, pulling or carrying. She is restricted from kneeling and crouching or bending down low and from repetitive bending.

I note that her pre-injury job was working as a cleaner which involves substantial activity she is permanently restricted from now.

She has no capacity for pre-injury employment as a result of her lumbar back injury.

She could not compete in the open labour market with this substantial ongoing pain, restriction and reduced capacity."

1. Dr Porteous noted that the applicant said that she has had significant chronic lumbar back pain since onset at work on 13 March 2022 and it has never resolved. He wrote:

"I note firstly that Ms Jandric has consistently reported that she had onset at work while undertaking work activity on 13 March 2022 with substantial lumbar back pain. She had been working doing normal duties prior to that consistent with her statement that she recovered from the prior injury and only had very mild manageable lumbar back pain. The second thing I would note that since that time, she has consistently complained of high levels of pain and restriction that has never resolved. There is no history of any reduction or resolution of the pain....

I have the reviewed the report of Dr Ron Haig, 10 April 2025, an Orthopaedic Surgeon. I noted that he records 'the diagnosis is lumbar spondylosis, age-related, with a chronic pain syndrome ... 'he noted that she had no transferable skills, widespread

pathology and noted that she was unfit for work in any capacity. I note that he indicated 'that this is not as a result of any work-related injury but as a result of the medical conditions'.

With all due respect, noting the clear temporal association between her ongoing chronic lumbar back pain and onset at work which has never resolved, I disagree with his conclusion noting that he has not addressed this clear temporal association and appears to have overlooked it.

I would also note that it is often relied on that study [sic] show that in the majority of people when there has been aggravation or exacerbation of ageing-related degenerative change that resolves, but I would note that there is substantial evidence that in some people, it does not. I note the unbroken temporal association between her ongoing chronic lumbar back pain and onset at work on 13 March 2022. When weighing up all of the evidence, I can only conclude noting that it is more likely than not, on the balance of probabilities, the ongoing lumbar back pain and restriction is as a result of her incident at work on 13 March 2022, and in this case, there is no evidence that that injury has ever resolved."

1. In commenting on capacity for work, Dr Porteous wrote:

In my opinion, she has been incapacitated from her work as a cleaner which involves substantial activity she is permanently restricted from, from 13 March 2022 and will be for the foreseeable future through to and beyond expected retirement age at 67.

I would note that as Dr Haig reported that she does have other medical pathology. I would note that if she did not have that, her lumbar back injury will still have resulted in substantial required restrictions and markedly reduced capacity and would have incapacitated her for work from the date of injury and through to and beyond the expected retirement age.

Therefore, she does not have any capacity for future work, any advancement and noting that all of the jobs she has undertaken to date involve substantial activities she is restricted from. She is totally incapacitated from work that would be open to her noting her age, education, training, experience, employment skills, individual characteristics, limited verbal English and very limited writing English skill.

In my opinion, she is totally incapacitated from all work."

1. In a report dated 21 August 2024 to the insurer (p190 ARD), Dr Philip Vuong, treating general practitioner, noted that the applicant initially presented on 14 March 2022 complaining of persistent lower back pain, stiffness and weakness that occurred on

13 March 2022 when she was cleaning and scrubbing the toilet at Concord Hospital. He noted that she reported that her job required frequent and repetitive bending resulting in an acute onset of lower back pain on that day. The applicant described her back pain radiating down both legs. 2. Dr Vuong noted that since the injury, the applicant had been experiencing persistent lower back pain, made worse from prolonged standing, walking and any type of bending activity. She required the support of a walking stick for mobility. Her gait was unsteady, and she was at increased risk of falling. He made a diagnosis of anterolisthesis at L4/LS level with annular tear at the L5/S1 disc. Dr Vuong noted that the diagnosis was confirmed by an MRI scan and CT SPECT bone scan. Dr Vuong wrote:

"The patient's back injury is consistent with the reported mechanism of injury because the back condition is directly from a mechanical cause. The patient's injury and symptoms are entirely related to the reported workplace incident dated 13 March 2022. In my opinion, the patient's back injury would not have happened outside of work because the nature of her work required prolonged, repetitive and strenuous bending type work that would not have occurred in her normal daily life"

1. Dr Vuong considered that the long-term prognosis was poor as the applicant continued to report chronic lower back pain, radiation of the pain down her legs, and poor mobility with an unsteady gait. He was of the view that the applicant's back injury was chronic, would not improve in the future and was likely to deteriorate.
2. Dr Vuong was of the view that the applicant would not be able to return to her pre-injury duties, a conclusion supported by both the treating neurosurgeon, Dr Raoul Pope and the occupational physician, Dr Azhar Khan. Dr Voung opined that based on the applicant's history, clinical examination and review of her condition, she was unfit for any work in the future.
3. In a report dated 2 June 2025 (p23 ARD) Dr Vuong noted that the applicant had initially presented on 14 March 2022 for treatment of a work-related injury and subsequently was seen fortnightly to monthly till April 2025. He wrote:

"The patient attended for consultation on the following dates: 2022 - 14/3,17/3, 24/3, 22/4, 20/5, 23/6, 21/7, 25/7, 25/8, 8/9, 23/9, 14/10, 21/10, 18/11, 16/12. 2023 - 15/1, 15/2, 16/3, 14/4, 4/5. 12/2. 10/6, 10/7, 10/8, 1/9, 29/9, 29/10, 29/11, 28/12. 2024 - 25/1, 23/2, 22/3, 22/4, 22/5, 21/6, 19/7, 19/8, 19/9, 18/10, 18/11, 14/12, 2025 - 6/1, 13/1, 13/2, 13/3 and 11/4."

1. Dr Vuong reported that the appellant had presented on 14 March 2022 complaining of persistent severe lower back pain radiating down both legs since 13 March 2022 after cleaning and scrubbing the toilets at her place of work. The appellant had reported that her work as a cleaner required repetitive bending and she experienced an acute onset of severe lower back pain on 13 March 2022 as she was straightening up from bending.
2. Dr Vuong noted that his clinical findings on 14 March 2022 included tenderness of the lumbar region with local paraspinal muscle spasm at the location of pain. She presented with a painful limping gait. MRI scan showed bulging discs at L4/5 and L5/S1 with an annular tear at L5/S1 level. He made a clinical diagnosis of mechanical lower back pain due to a disc bulge and an annular tear. He noted that the applicant has been assessed by the neurosurgeon.

Dr Raoul Pope and the occupational physician, Dr Azhar Khan and both specialists had concluded that she was totally unfit to return to her work duties. Dr Vuong concurred with their assessment and expressed the opinion, that the applicant is permanently unfit to return to her pre-injury work as a cleaner and the long-term prognosis is poor due to the severity and chronicity of her back pain. He considered that the applicant has no future capacity to work at the level she was undertaking and based on her age, educational qualifications, training, experience, employment skills and individual experience, she is unfit for any alternative occupations. He concluded: "ln my opinion, the patient is unfit for any type of future work". 3. Dr Raoul Pope, treating neurosurgeon, in a report dated 5 April 2022 (p81 ARD) noted that he last saw the applicant on 30 June 2021 where she was making good progress with her lower back pain and bilateral leg pain. She was working normal hours with a 15 kg lifting limit and had finished up her physiotherapy. He reported that she presented with an exacerbation of her symptoms and complaints of lower back pain and bilateral lower limb pain. Dr Pope noted that the applicant had a new injury on 13 March 2022 when she was cleaning the toilet and scrubbing them as they were blocked, and she was constantly bending and straightening up. He noted that when she straightened up on one occasion, she had instant lower back pain at the lumbar sacral junction and pain going down the legs, right side more than left, similar to the symptoms previously. She could not work the next day as the pain was severe with bad spasming. 4. Dr Pope stated that the applicant described pain at the lumbar sacral junction going into both buttocks, right side more than left, going to the hamstring but minimally past the knee, daily ache with spasming and pins-and-needles. He wrote:

"Mechanical more than non mechanical activity exacerbates it as well as transitional manoeuvres going from sitting to standing and vice versa.

Also pain in the right shoulder region but this is minimal. No neck pain or arm pain."

1. Dr Pope reviewed an MRI that was done recently as well as a report that was done on

21 March 2022. He reported that the most recent MRI showed disc bulging at L4-5 and L5-S1 and centrally, there was mild annular tearing at L5-S1. He considered that the changes were not dissimilar from previous scans. He noted that there was some inflammation of the facet joints at these levels. There was no lumbar canal central bilateral recess stenosis and the neural exit foraminae were free bilaterally. 2. Dr Pope wrote:

"My opinion is that Ms Jandric has had an exacerbation of her lower back pain and bilateral leg pain most likely from the facet joints and maybe from the annular tearing at L5-S1. I would like her to have a CT SPECT bone scan. She should remain off work, keep her lifting to less than 5 kg and we will commence physiotherapy once to twice a week."

1. Dr Pope, in a report dated 20 July 2022 (p 55 ARD) noted that the applicant had a CT SPECT bone scan which showed uptake in the endplates of L5-S1 consistent with discogenic component and inflammation. He reported that there was minimal uptake in the facet joints or sacroiliac joints.
2. Dr Pope noted that he had a case conference with Dr Azhar Khan, who saw the applicant that day and on examination she had some mild spasming of the lumbar sacral junction and she walked with a very slow stooped gait and had a decreased range of movement of her back in all directions. He noted that the applicant had patchy sensory changes consistent with her diabetes. Dr Pope did not consider that there was any scope for cortisone injections given her type 1 diabetes and it would only be temporary. He concluded that there no indication or recommendation for surgical decompression or spinal instrumentation such as fusion.
3. Dr Pope expressed the view that the applicant's job as a cleaner was not sustainable and agreed with Dr Khan that she should probably be medically retired and was unfit for any duties.
4. Dr Pope, in a report dated 4 March 2025 (p94 ARD), noted that in 2024 the applicant remained relatively stable with ongoing disability. He noted that in the last few weeks she has had recurrence of right radicular leg pain, going from the buttock, anterolateral thigh but not past the knee, it could be a recurrence of the L2-3 disc bulge. He noted that mechanical more than non-mechanical activity exacerbating the pain, walking makes it worse and the applicant continued to use the walking stick and Rollator frame. He noted that she could sit for 30 minutes, stand and walk for less than five minutes with a frame or a stick and had difficulty sleeping.
5. Dr Pope noted that there was some weakness of hip flexion on the right side grade 4-5 power with increased pain, and hip examination did exacerbate some pain, particularly right hip abduction. He requested a right hip X-ray as well as a CT SPECT bone scan to look for any inflammatory arthropathies of the hip joint, sacroiliac joints or facet joints to rule out any right hip pathologies.
6. Dr Arulventhan, consultant radiologist, in a report of Bone Scan with CT/SPECT dated

11 March 2025 concluded that the applicant had mild to moderate degenerative arthritis in the sacroiliac joints, more marked on the right, mild degenerative arthritis in the hips and advanced degenerative disease in multiple levels of the lumbar spine with associated marked osteoblastlc remodeling at L4/5 on the right, moderate osteoblastic remodeling at L5/S1 and mild osteoblastic remodeling at L 1/2. He found no evidence of active lumbar facet joint arthropathy. 7. Dr Azhar Khan, treating occupational physician, in a report dated 29 June 2022 (p53 ARD) noted that the applicant presented with history of recurrent lower back pain due to degenerative changes in her lumbar spine namely, facet joint arthropathy. He noted that the applicant advised that her lower back pain was a little better but nonetheless, she acknowledged that she has ongoing issues with pain in her lower back. He reported that she had returned to work on a part-time basis and was carrying out alternative duties. Dr Khan wrote:

"Ms Jandric's lower back pain is likely due to degenerative aetiology (eg, lumbar spondylosis and facet joint arthropathy in her lumbar spine).

I am of the opinion that Ms Jandric will not be able to return to her pre-injury duties in a consistent and safe manner."

1. Dr Khan, in a report dated 16 November 2022 (p76 ARD), noted that the applicant presented with a history of chronic lower back pain due to facet joint arthropathy/lumbar spondylosis. He reported that she advised that her lower back pain has deteriorated over the past month and she was having difficulty coping with her lower back pain. He recommended that she should be referred to see Dr Nazha, pain specialist. Dr Khan wrote: "She is unfit to perform her pre-injury duties. I am of the opinion that Ms Jandric is a candidate for medical retirement".
2. In a report dated 26 March 2025, (p 370 ARD) Dr Alan Nazha, treating pain physician, noted that the applicant's occupational history includes work as a cleaner at Concord Hospital, where she sustained an injury over five years ago, in which she appeared to have traumatised her lower back after striking it against an object, following which she has experienced persistent lower back pain, predominantly on the right side, along with associated lower limb discomfort. He noted that the applicant identified the lower back pain as the most distressing and functionally limiting of her symptoms. Dr Nazha noted that her mobility was significantly impaired due to pain, and she relied on a walking stick for ambulation. He wrote: "She is unable to determine whether her pain has improved, worsened, or remained stable since the original injury."
3. Dr Nazha noted that the applicant had trialled previously use of TENS machine without being able to capitalise on its use, so he was seeking approval for a topical pulsed electrical magnetic frequency device to trial as an external device which may help him with her symptomatology.
4. In a report dated 7 April 2025 to the insurer (p 366 ARD), Dr Nazha was requested to comment "on the predominant cause of Julieta's symptoms" and whether there were any pre-existing conditions or age-related changes influencing the symptomology reported. Dr Nazha wrote:

"Julieta's symptom profile aligns with chronic axial back pain following a mechanical injury at work. While there are age-related degenerative changes on imaging, these do not account for the severity of her pain, disability, and fear-avoidant behaviour. Her presentation is not typical of someone with uncomplicated age-related degeneration. In my opinion, the predominant cause of her current symptoms is the original workplace injury. Had this injury not occurred, I do not believe the Oska Pulse device would have been required."

1. In a report dated 22 June 2023 (p 374 ARD), Dr Fatemah Sarmast, treating rehabilitation physician, made a principal diagnosis of chronic lower back pain following work injury, mood disturbance and anxiety secondary to persistent pain, inability to work. She noted that the applicant had other comorbidities, namely, "AF, DM, HTN, Gout and Hypercholesterolemia". Dr Sarmast considered that the applicant would benefit from attending a multidisciplinary rehabilitation programme.
2. In a report dated 1 February 2024 (p372 ARD), Dr Sarmast noted that the applicant had been attending physiotherapy and her pain was not as intense as before but unfortunately, there had not been any improvement in her functional mobility. The applicant still reported limited walking tolerance to about 300m before needing a rest, struggled to bend over to put on her shoes or pick up an object off the floor. Dr Sarmast recommended the applicant attend a multidisciplinary rehab program to promote and improve her functional mobility and endurance.
3. Dr Mangalee Fernando, treating nephrologist, in a report dated 23 January 2024 (p 67 ARD), noted that the applicant's renal function had deteriorated further likely due to the natural progression of kidney disease. He stated that he would contact her if she needed treatments and follow up in six months time.
4. In a report dated 2 February 2025 (191 ARD), Dr Fernando noted that the applicant had been stable.
5. In a report dated 16 May 2025 (p 197 ARD), Associate Professor Christian Girgis, treating endocrinologist, noted he had reviewed the applicant for assessment of diabetes. He noted that since her last review, she continued to struggle with back issues. He wrote: "Her glycaemic control is better with an AIC of 7.3% ...this is an improvement."
6. In a report dated 17 February 2025 (p199 ARD), Dr Chik Foo, treating cardiologist, noted that the applicant presented for scheduled review and remained limited by back and leg pain. He noted that the applicant had exertional dyspnoea, possibility related to her weight/poor general fitness. He noted that the overall appearances in the echocardiogram were stable when compared to the previous study in 2023. He wrote: "She does have valvular heart disease, however this is not severe enough to cause her symptoms. She has rate controlled atrial fibrillation".

1. Assessment of the applicant's capacity for work since 21 June 2025 requires consideration as to whether she has "a current work capacity" or has "no current capacity" as defined by in Schedule 3 of the 1987 Act:

'current work capacity' if the worker has a present inability arising from the injury such that the worker is able to return to the worker's pre-injury employment, or is able to return to work in suitable employment , but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.

'no current work capacity' if the worker has 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. Suitable employment is relevantly defined in s 32A of the 1987 Act:

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

(a) Having regard to:

(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 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

(b) regardless of:

(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 or residence."

"If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity."

1. The applicant's case is that she commenced employment with the respondent as a cleaner with Concord Hospital on around 31 March 2008 and over the 17 year period that she worked for the respondent, was required to perform heavy and repetitive cleaning duties including mopping, vacuuming, lifting and removing linen bags, taking out rubbish, dusting and cleaning bathrooms. The applicant then experienced an onset of pain in her lower back which worsened to the extent she was unable to continue working beyond 13 March 2022.
2. The respondent submitted that the work injury, which was an exacerbation of a pre-existing condition, had resolved and any ongoing symptoms in the lumbar spine were a consequence of her pre-existing lumbar spondylosis.
3. The respondent relied in the opinions of Dr Haig, Dr Muratore and Dr Khan.
4. The respondent concedes that the applicant sustained an injury to her lumbar spine.
5. The applicant stated that prior to commencing employment with Concord Hospital, she had no previous history of injury to the lumbar spine, or pain in the lower back. The applicant stated that since her injury she has undergone physiotherapy and hydrotherapy but ceased treatment since EML denied her entitlement to medical and treatment expenses. She stated that she continues to experience symptoms and disabilities as a result of her workplace injury. The applicant stated that since she reported her injury on 13 March 2022 her pain had not resolved or reduced despite her treatment and medication.
6. The applicant's evidence has not been challenged. I accept her evidence.
7. Dr Haig reported that the applicant said she had hurt her back on two occasions, with the last episode in March 2022 and that she continued to see her general practitioner "for her pain has continued".
8. Dr Haig was asked to provide an opinion regarding if the injury has resolved and if current reported symptoms are a result of the reported workplace injury on the 13 March 2022. He wrote: "Her injury caused an exacerbation of her pre-existing lumbar spondylosis. I believe this would have settled within a short space of time and her ongoing pain is merely the natural history of the underlying lumbar spondylosis". Dr Haig did not address whether the work that the applicant performed since March 2008 or the earlier incident in about 2020 caused an exacerbation of the pre-existing spondylosis.
9. Dr Muratore made a diagnosis of "lumbar spondylosis, which is age related". Dr Muratore does not express the view that there had been a work related exacerbation of lumbar spondylosis, which had resolved.
10. The respondent referred to the opinion expressed by Dr Khan, treating occupational physician. I accept that Dr Khan expressed the view that the applicant's lower back pain was likely due to "degenerative aetiology (e.g., lumbar spondylosis and facet joint arthropathy in her lumbar spine)". However, Dr Khan, like many treating doctors, did not expressly consider the question of causation and, in particular, whether the applicant's work injury had caused an exacerbation of the degenerative condition and whether the exacerbation had ceased or was continuing.
11. Dr Porteous concluded it is more likely than not, that on the balance of probabilities, the ongoing lumbar back pain and restriction was as the result of the work incident on

13 March 2022, and there was no evidence that that injury has ever resolved. 12. Dr Vuong expressed the opinion that the applicant's injury and symptoms were entirely related to the reported workplace incident on 13 March 2022. Dr Vuong considered that the long-term prognosis was poor as the applicant continued to report chronic lower back pain, radiation of the pain down her legs, and poor mobility with an unsteady gait. He was of the view that the applicant's back injury was chronic. 13. Dr Pope was of the view that the applicant had an exacerbation of her lower back pain and bilateral leg pain most likely from the facet joints and maybe from the annular tearing at L5/S1. In his report of 4 March 2025 (p94 (ARD), Dr Pope noted that in 2024 the applicant remained relatively stable with ongoing disability. 14. Dr Nazha was of the opinion that the applicant's symptom profile aligned with chronic axial back pain following a mechanical injury at work. He considered that while there were age-related degenerative changes on imaging, these did not account for the severity of her pain, disability, and fear-avoidant behaviour, and her presentation is not typical of someone with uncomplicated age-related degeneration. He expressed the view that the predominant cause of her current symptoms is the original workplace injury. 15. Dr Sarmast, on 1 February 2024 (p372 ARD), noted that the applicant had been attending physiotherapy and her pain was not as intense as before but unfortunately, there had not been any improvement in her functional mobility. 16. Having considered the evidence, I am satisfied that the work injury, which was an exacerbation of a pre-existing condition, has not resolved and the applicant's ongoing symptoms in the lumbar spine are related to the work injury. In making this finding, I have preferred the evidence of Dr Porteous, Dr Vuong, Dr Pope and Dr Nazha to that of Dr Haig. It is significant, in my opinion, that Dr Haig qualified his opinion by stating that the exacerbation "would have settled within a short space of time", but did not state that the exacerbation had actually settled or provide reasons for his assumption that the exacerbation would have settled within a short period of time. 17. The opinion of Dr Haig that any exacerbation would have ceased "within a short space of time" is not in my view supported by the contemporaneous medical evidence, and in particular, the evidence of Dr Vuong and Dr Pope. 18. I have placed considerable weight on the opinion of the treating general practitioner,

Dr Vuong, who had the benefit of seeing the applicant on many occasions since the work injury and was best placed to observe her symptoms. I agree with Dr Porteous that Dr Haig had failed to address the clear temporal association between the applicant's ongoing chronic lumbar back pain and the onset at work which has never resolved. Dr Nazha's opinion was persuasive, and I accept his evidence that the applicant's symptom profile aligned with chronic axial back pain following a mechanical injury at work and while there were age-related degenerative changes on imaging, these did not account for the severity of her pain, disability, and fear-avoidant behaviour. 19. In my view the weight of the medical evidence supports a finding that the lumbar spine injury remained symptomatic since the back injury in May 2020 and further injury on

13 March 2022. While the applicant made a reasonable recovery from the injury in

May 2020, she has suffered chronic back pain since the accepted injury on 13 March 2022 and there has been really no improvement in the symptomatology. 20. The applicant denies that she had any back problems before she commenced work for the respondent and there is no evidence in the clinical records prior to May 2020 of any prior back problems. 21. The next issue to consider is whether the other medical conditions could be impacting on the applicant's capacity to work. The respondent relies on the report of Dr Muratore in support of this submission. 22. Dr Muratore considered that the applicant was not fit for her pre -injury duties but "this is not as a consequence of a work-related injury but as a consequence of her underlying medical conditions". Dr Muratore made a diagnosis of a right rotator cuff tear, adhesive capsulitis, causally related to her diabetes, osteoarthritis of the right acromioclavicular joint also aged related, lumbar spondylosis, which is age related, early peripheral neuropathy as a consequence of underlying diabetes mellitus and chronic pain syndrome. 23. Under current symptoms, Dr Muratore noted that the applicant described constant right sided back pain, pain radiating to the anterior aspect of the right thigh and to the knee, with the pain being aggravated by walking for longer than 10 minutes, sitting for longer than 15 minutes, after which she has difficulty with standing without supporting herself. 24. Dr Muratore does not describe any of the symptoms caused by the other underlying medical conditions, nor whether such conditions pre-dated the work injury and if so whether they had caused incapacity in the past. Dr Muratore was not provided with the reports from the applicant's treating specialists, Dr Foo, Dr Fernando and Associate Professor Girgis and did not properly consider, in my view, the history, symptomatology, treatment and diagnoses made by the applicant's treating specialists. Although Dr Muratore referred to Dr Pope's report of 5 April 2022 and a complaint of right shoulder pain being made to Dr Pope,

Dr Muratore omitted to note that Dr Pope described that as "minimal". 25. Although the respondent's counsel in submissions referred to the more recent reports of

Dr Foo, Dr Fernando and Associate Professor Girgis, he omitted to refer to earlier reports which dated back to 2009 (see Dr Foo's report 8 August 2009 p 277 ARD, Associate Professor Guirgis' report 16 December 2015 p 247 ARD, Dr Fernando's report 28 August 2018 p 269 ARD). These reports all pre-date the work injury and were written while the applicant was working full time for the respondent performing relatively demanding physical duties. There is no reference in any of these reports to any incapacity for work due to any of these conditions which were being treated by these specialists and includied diabetes, kidney disease, asymptomatic valvular heart disease and rate controlled atrial fibrillation. 26. I accept that during the period of employment the applicant had concurrent health issues. However, she was still able to perform her work duties without restriction despite working eight hours a day, five to six days a week (applicant's statement, p 1 ARD) until she injured her back in May 2020. 27. The respondent's counsel submitted that the doctors on whom the applicant relied had not addressed the question of whether the other medical conditions could be impacting on the applicant's capacity to work. In my view, the correct question to be addressed is whether the applicant has a present inability arising from the work injury and whether she has a partial or total incapacity for work as a result of the work injury. 28. Dr Haig expressed the opinion that the applicant would never be able to to return to her pre-injury role, referring to her significant back pain and limited movement. Dr Haig then wrote: "At her age I do not believe she would be able to return to suitable employment." Dr Haig identified age and her general condition as factors to be consider apart from the work injury in terms of impacting her ability to return to work, but did not explain what impact these factors had on the applicant's ability to return to work. 29. Dr Muratore expressed the view that the applicant would not return to work with any employer in any form of work at any time in the future. He stated that this was not as a result of any work related injury but as a result of the medical conditions. As noted above, I place no real weight on Dr Muratore's analysis of the various medical conditions as he failed to take into consideration the opinions of the treating specialists and the applicant's past history that demonstrated that she had no difficulties working full-time despite any concurrent conditions including diabetes until the back injury in 2020. 30. Dr Pope expressed the view that the applicant's job as a cleaner was not sustainable and agreed with Dr Khan that she should probably be medically retired and was unfit for any duties. 31. Dr Porteous expressed the view that the applicant had no capacity for pre-injury employment as a result of her lumbar back injury and could not compete in the open labour market with this substantial ongoing pain, restriction and reduced capacity. 32. Dr Vuong was of the view that the applicant would not be able to return to her pre-injury duties, a conclusion supported by both Dr Pope and Dr Khan. Dr Voung opined that based on the applicant's history, clinical examination and review of her condition, she was unfit for any work in the future. 33. Dr Vuong, in a State Insurance Regulatory Authority Certificate of Capacity dated

13 March 2025 (p 250 ARD), certified that applicant as having no current work capacity for any employment. He noted on the certificate that the diagnosis was mechanical lower back pain and the date of injury 13 March 2022. 34. The respondent submits that the applicant had a partial, not a total incapacity for work. 35. In considering the applicant's capacity for work it is necessary to consider the matters identified in s 32A of the 1987 Act. As Dr Porteous observed the applicant left school at the age of 17 in the Philippines, has limited verbal English and very limited English writing skills, limited work experience since the age of 30 as a care giver and cleaner and was aged 66 at the time of his examination. It is clear all of her employment since she came to Australia in 1994 has been in physical occupations which require her to be able to walk, bend, lift and carry objects on a repetitive basis. The applicant, in my view, is unfit for employment in all the previous occupations in which she has experience. 36. The definition of "suitable employment" in s 32A "means employment in work for which the worker is currently suited". The suitable employment has to be a real job potentially available in the labour market at large. There appears to be no plan or document prepared as part of a return-to-work planning process. There are no functional and vocational assessments identifying any alternate occupations which the applicant could perform and there are no reports from any occupational rehabilitation services. All of the applicant's previous work experience has involved unskilled work performing repetitive physical tasks which required the repetitive use of her lumbar spine. 37. Taking into account the opinions expressed by Dr Porteous, Dr Vuong, Dr Khan and

Dr Pope, I am satisfied that the applicant had no current work capacity from 21 June 2025 to date as a result of her injuries to her lumbar spine. There appears to be no more medical certificates issued in respect of capacity for work issued after 13 March 2025, but the applicant stated, and I accept, that she could not afford further treatment once the insurer declined her claim. 38. I infer from the medical evidence, excluding the reports of Dr Muratore and Dr Haig, that the total incapacity for work continued after 13 March 2025 and is ongoing. 39. I am not persuaded that the other medical conditions referred to by Dr Muratore impacted on the applicant's capacity to work. 40. On balance I am satisfied that the applicant had no current working capacity from

21 June 2025 to date and continuing. Therefore, the applicant is entitled to receive weekly benefits pursuant to s 38 of the 1987 Act from 21 June 2025 to date and continuing. 41. The PIAWE is agreed as set out in the applicant's wages schedule in the ARD at $1,280 per week from 21 June 2025 to 30 September 2025 and at the rate of $1,300 per week from

1 October 2025 to date and continuing as indexed. 42. Pursuant to s 38(6) of the 1987 Act, the weekly payment of compensation to which an injured worker who has no current work capacity is entitled after the second entitlement period is at the rate of 80% of the PIAWE, that is $1,024 from per week (80% x $1280) from 21 June 2025 to 30 September 2025 and $1,040 per week (80% x $1300) from 1 October 2025 to date and continuing at the rate of $1040. 43. There will accordingly be an award for the applicant pursuant to s 38 of the 1987 Act from:

(a) 21 June 2025 to 30 September 2025 at the rate of $1,024 per week, and

(b) 1 October 2025 to date and continuing at the rate of $1,040.