"Despite this certification, I was not performing my pre-injury work. My manager and other staff were assisting with heavier tasks, which I would usually do, before my injury. Sometimes I would be pressured to perform the heavier tasks and this would flare up my lower back pain. I was afraid that my condition may become worse. My manager, Shaarn was not happy with this and continued to be hostile towards me. I was trying my best at work, despite persisting lower back pain and right calf swelling, pain and discomfort."

1. The applicant resigned on 27 November 2019 as he could not cope with his work duties. The applicant's last day at work was on or about 2 December 2019.
2. The applicant said he was a hard worker by nature and did not like sitting at home doing nothing. The applicant had been told his case was closed because he had been certified as fit for pre-injury duties. The applicant felt no one would hire him with his injuries. The only way the applicant felt he could remain in the workforce was to be his own boss and have full control over the type of work and hours he performed.
3. In January 2020, the applicant commenced working as a TV/electrical goods installer for JB Hi-Fi stores around Sydney. The applicant subcontracted his services to a labour hire agency. The job predominantly involved assigning the installation of televisions, computers and sound systems in residential homes. The applicant employed his son to perform the heavy manual aspects of the job due to the applicant's lower back and DVT condition.
4. The applicant continued to struggle with symptoms of pain and discomfort affecting his lower back and right calf.
5. While the applicant was initially very busy, after the COVID-19 pandemic commenced, the work dropped off significantly and he was working approximately two to three days per week for three to four hours. The applicant was relieved to have the opportunity to slow down as his lower back pain was persisting.
6. On or around 13 June 2020, the applicant attempted to lift a television at work. Following this, the applicant experienced a flare in lower back pain. The applicant was prescribed Panamax and Voltaren gel for symptom relief. The flare of lower back pain settled to its usual level after one to two weeks.
7. The applicant said he did not report complaints about his lower back pain following his resignation as he was more concerned with treatment of his DVT around this time. The applicant accepted that there wasn't much that could be done about his lower back. The applicant did not want to dwell on it but that did not mean he was not suffering from pain. The applicant was trying to move on and persevere with work.
8. On 7 July 2020, the applicant was admitted to Liverpool Hospital with symptoms found to be from carbamazepine toxicity due to the interaction of the applicant's epilepsy medication and the warfarin he was taking for his DVT. Following his discharge from hospital, the applicant ceased employment altogether due to the combination of lower back pain and right calf swelling as well as the episode of dizziness and difficulty controlling his epilepsy.
9. Following the cessation of work the applicant was able to focus on his treatment. The applicant was referred for physiotherapy and consulted Dr Bazina.
10. The applicant continued to suffer persisting back pain that occasionally travelled down his right and left legs. The applicant continued to suffer from right calf swelling and pain. The applicant's lower back pain impacted his sleep and he often woke feeling tired and lethargic. The applicant struggled to walk, sit or stand for more than 20 minutes. The applicant had difficulty with dressing and showering and had to pace himself with other tasks of self-care. The applicant was unable to contribute to cooking, cleaning or gardening duties.
11. Annexed to the applicant's first statement was a handwritten letter of resignation dated

27 November 2019, which indicated that the applicant was resigning as he was not happy with the way he was treated. 12. In his supplementary statement, the applicant described his ongoing condition. The applicant said he continued with five sessions per year of physiotherapy under Medicare. The applicant also performed home exercises consisting of strengthening and stretching. The applicant tried to do short walks around the neighbourhood but continued to struggle with pain. The applicant said he could not afford the cost of further medical treatment and had stopped seeing his specialist, Dr Bazina. 13. The applicant reiterated that he employed his son to perform the heavy manual aspects of his post injury employment. The applicant stated:

"The extent of my work involves me getting the various jobs from JB Hi-Fi for my son to perform the installation works. I left the heavy lifting and labour intensive work to my son to perform. I do recall on or around 13 June 2020 I did try to assist him to lift a television as it required 2 people to lift and I wanted to save costs and not hire a second person to help. However, I had ongoing lower back pain and found it difficult to assist. I saw Dr Danish Khan complaining of the pain."

1. The applicant's son, Zoran Kacevski, provided written statements on 9 March 2022 and

16 December 2024. 2. Mr Kacevski said that following the applicant's work injury, he observed the applicant to be in pain. Mr Kacevski took over the applicant's domestic chores such as cutting the grass, general maintenance and repairs. 3. Mr Kacevski confirmed that the applicant could not stand to be at home doing nothing and spoke to him about starting a television installation business. They agreed that the applicant would look after the job allocation and Mr Kacevski would do the installations as the applicant was suffering from back pain and calf pain. Mr Kacevski request the assistance of friends when needed. 4. There was one occasion, on or about 13 June 2020, when a television needed to be installed but Mr Kacevski's friends weren't available to assist. The applicant said he would assist.

"My father and I proceeded to lift the TV. I took most of the weight of the TV. It was a quick job and one of the lighter ones I've done since working with my father."

1. After the television was installed, Mr Kacevski did not observe the applicant to be in any increasing pain. The applicant always had lower back pain since he was injured at work for the respondent.
2. In his supplementary statement, Mr Kacevski stated:

"On 13 June 2020, my father was already in pain, his back was hurting but he offered to help me lift the TV. He attempted to but never lifted the TV as he couldn't. He already suffered injuries to the back prior to working at Kace Installations, thus I stopped him from doing any heavy lifting as I knew he would not be able to lift given his back injuries and pain. I would be responsible for all heavy duties at Kace Installations."

1. Clinical records from treatment providers at Moorebank Family Medical Practice are in evidence.
2. On 23 January 2019, the applicant consulted Dr Tuan Quang Bui in relation to the back injury on 22 January 2019 secondary to lifting dryers off the wall and putting them back on. The applicant was prescribed Panadeine Forte and Celebrex.
3. The applicant was seen by a physiotherapist, Claire Ellery, on 25 January 2019 in relation to the injury. It was noted that the applicant's pain was not improving.
4. General practitioner, Dr Danish Khan, referred the applicant for an MRI of the lumbar spine on 4 February 2019. The applicant was noted to be "not keen to go to work due to pain".
5. From 16 February 2019, the applicant's back pain was noted to be improving. The applicant was certified as fit to work suitable duties, four hours per day, three days per week.
6. On 26 February 2019, it was noted that the applicant had been admitted to hospital for seizures.
7. On 16 March 2019, physiotherapist John Luong noted that the applicant remained with a four hours, three days, 5 kg lifting capacity. The applicant's pain was slowly improving but he was complaining of stiffness in the upper back.
8. From 4 April 2019, the applicant's capacity was increased to five hours, three days per week. The applicant's capacity was upgraded to five hours per day, four days per week from

8 May 2019 and to six hours per day, four days per week from 29 May 2019. During this period, the applicant continued with physiotherapy with John Luong. 9. The applicant was certified as having capacity to work six hours per day, five days per week with a 6 kg lifting/carrying capacity from 27 June 2019. 10. From July 2019 onwards, the clinical records noted the applicant's DVT diagnosis. 11. On 6 July 2019, Mr Luong noted that the applicant would transition to doing gym-based training with an exercise physiologist. The applicant was doing back stretches at home. 12. On 12 July 2019, Dr Khan recorded that the applicant had been resting in bed for prolonged periods due to his work-related back pain. The applicant had been advised by his haematologist that his DVT was due to resting for long periods as a result of his work injury. 13. From 28 August 2019, the applicant was certified as having capacity for suitable duties for 7.5 hours per day, five days per week with lifting restrictions. 14. The applicant was certified as fit for pre-injury duties on 24 October 2019 and in a number of certificates thereafter. The applicant was noted to be continuing with an exercise program with an exercise physiologist with "good improvement reported". The applicant also continued to be treated for DVT. 15. Records from Be Active- Sydney show exercise physiology treatment between August and November 2019. 16. A report from exercise physiologist, Lachlan Holroyd, dated 22 October 2019, indicated that the applicant was certified as fit for full-time suitable duties for, for 38 hours per week with a lifting capacity of 5 kg floor to waist and 10 kg waist to shoulder. The applicant reported that his lower back pain symptoms were unchanged and increased with repetitive tasks. The applicant would take breaks as required. The biggest barrier to return to pre-injury duties was the lack of progress in regard to the applicant's DVT. 17. A report from exercise physiologist, Akapon Sae-Lieo, on 28 November 2019, also recorded that the applicant's main issue at that time was some ongoing DVT symptoms including tightness and stiffness in the right calf first thing in the morning. It was also noted that the applicant reported some "minor lower back pain when he incorrectly completed a stretch two weeks ago". The applicant reported that he was completing all current duties without any major difficulty. The applicant was instructed to stretch his right calf periodically throughout his shift to assist with durability and circulation. 18. On 13 June 2020, Dr Khan recorded a consultation as follows:

"Back pain. No sciatica. one week after lifting weight at work his own business with tv insulations"

1. The applicant was prescribed Panamax and Volatren Osteo Gel.
2. On 11 July 2020, Dr Khan noted that the applicant had been admitted to hospital for a carbamazepine overdose.
3. On 19 July 2020, Dr Khan noted that the applicant was unable to drive due to high risk of seizures due to reducing his epilepsy medications. The applicant was unable to work in his business. It was also noted that the applicant had back pain, which caused difficulty with function, and an inability to lift weights and sit in the van for prolonged periods.
4. On 29 July 2020, issues with the applicant's epilepsy and nocturnal events were noted. It was noted that the applicant was not allowed to drive and could not work now. The applicant had been admitted to hospital following dizziness after a medication overdose. A letter was prepared for Centrelink.
5. Records of physiotherapy treatment through PhysioFit from 30 July 2020 are in evidence. At the initial consultation, the applicant was noted to have given a history of the work injury. The applicant reported that he had physiotherapy through to Christmas and his pain had gotten a little better but had not returned to pre-injury levels.
6. On 10 August 2020, Dr Khan noted that the applicant was unable to work due to seizures and reducing medications due to drug toxicity. The applicant reported ongoing back pain and was being treated with physiotherapy under a care plan.
7. On 2 October 2020, Dr Khan recorded that the applicant had come to the surgery requesting to re-open his workers compensation claim. It was noted that the applicant had lower back pain which increased on bending. The pain was moderate and there was no leg radiation.
8. On 8 October 2020, Dr Khan certified the applicant as fit for pre-injury duties in respect of the work injury. The next day, on 9 October 2020, a new certificate was issued certifying the applicant as having no current work capacity for any employment as a result of the work injury.
9. The applicant was seen by neurosurgeon, Dr Renata Bazina on 22 October 2020. Dr Bazina reported that the applicant gave a history of an injury working for a hotel chain sometime in 2019 and then starting a business as a handyman with his son, subcontracting for JB Hi-Fi in November 2019. The applicant had pins and needles intermittently in his right leg and localised pain to the lumbosacral region. Knee and ankle reflexes were present and symmetrical and there was no obvious verifiable radiculopathy. Dr Bazina said there was mechanical back pain which was constant and interfered with activities. According to physiotherapy records, the applicant's weight lifting restrictions were, at best, 4 kg and that was with significant difficulty. The prognosis for return to work was poor due to the persistent pain and disability.
10. The applicant's general practitioner, Dr Khan, responded to questions from the insurer on

21 December 2020. The applicant's condition was described as "ongoing back pain, worse on movement and activity". The pain was affecting the applicant's work capacity and he was unable to perform any work duties. Dr Khan indicated that the applicant's back pain symptoms were the same symptoms he had in his work injury and the applicant wished to reopen the case. The applicant had reported ongoing pain symptoms even though the case was closed and he was certified for pre-injury duties. 11. A rheumatologist and consultant physician, Dr Ian Gotis-Graham saw the applicant on

3 March 2021 and took a history of a work injury several years earlier. The applicant complained of pain in the lower back region. The pain did not radiate to the legs and varied in severity from two to ten out of ten. The applicant occasionally used Panadol and topical Voltaren gel and could not lift objects more than 5 kg. He had difficulty bending. On examination, lumbar spine movements resulted in localised low back pain. Dr Gotis-Graham gave the applicant some simple core muscle strengthening exercises and recommended steroid injections into the lower lumbar spine facet joints if the pain worsened. The pain was described as "chronic and stable" with no chance of significant improvement in the next two years. 12. The applicant was seen again by Dr Bazina on 22 April 2021. Recent bone scans and MRIs indicated diffuse osteoarthritic disease affecting the spine and the large joints. This caused daily pain and stiffness resulting in restricted mobility and inability to perform duties as a handyman. The pathology was described as "permanent" and maximum treatment had been provided. There was no pathology requiring surgery at that time although this might change. 13. A medical statement for MetLife insurance completed by Dr Khan on 13 December 2021 indicated that the applicant's condition commenced on 21 January 2019 and had prevented the applicant from working since 25 December 2019. The applicant was certified as unable to work due to chronic back pain which was not improving.

1. The applicant relies on a vocational assessment performed by Prof James Athanasou on

14 December 2021. 2. Prof Athanasou noted that the applicant completed schooling in Macedonia at around age 15 years. The applicant's standard of reading in English was good and his reading for work purposes indicated an educational standard around upper primary school level. This was adequate for a range of unskilled to semiskilled positions. Simple mental arithmetic calculations were within normal limits and the applicant was noted to manage his own finances. The applicant had limited computing skills but was able to use the Internet and email. The applicant had workplace tickets for traffic control, working at heights, forklift cherry picker, a light rigid truck license and had completed first-aid and fire safety courses. 3. A work history consistent with the applicant's statement evidence was recorded. 4. Prof Athanasou noted that the applicant was partly dependent in his personal care and had problems with daily activities such as sweeping, vacuuming, gardening, cleaning the car or large amounts of shopping. 5. Prof Athanasou expressed the opinion that the applicant was not fit for suitable employment. The opinions of Dr Dias and Dr Bazina in this regard were noted. The applicant's employment potential was said to be limited having regard to his age (62), his education (limited English literacy, non-completion of secondary schooling, no formal postal qualifications) and experience (a relative lack of transferable skills). 6. The respondent qualified Mr Aakash Devarkonda of IPAR to prepare a functional capacity evaluation report on 24 May 2023. An earning capacity assessment was completed for the respondent on 16 June 2023 by Ms Martina El Malakh. 7. Based on the evaluation, available medical information and self-reported capacity, the applicant was assessed to have capacity to work four hours per day, five days per week with an unlimited sitting tolerance, 30 minutes standing tolerance and lifting restrictions. As a result, the applicant was assessed as having a functional tolerance to complete tasks of a sedentary/light nature for four hours per day, five days per week. Work in a call centre, customer service officer and concierge were identified as suitable vocational options.

1. The degree of impairment resulting from the applicant's injury was assessed by Medical Assessor Todd Gothelf in a MAC dated 20 May 2022.
2. The Medical Assessor diagnosed a lumbar spine strain, L5/S1 disc herniation, aggravation of pre-existing condition and right lower extremity DVT. The Medical Assessor found there were non-verifiable radicular complaints without evidence of radiculopathy at the time of his examination. As a result, the impairment to the lumbar spine fell within DRE category II, which would also apply in cases where radiculopathy had improved with conservative management.
3. It was noted that the applicant was unable to do the gardening and struggled with dressing as a result of his injuries. A 2% loading was found to reflect the changes to the applicant's Activities of Daily Living. The Medical Assessor found that his assessment differed from that of the applicant's expert, Dr Uthum Dias, made on 9 April 2021, and that of the respondent's expert, Dr Robert Breit, due to the lack of evidence of radiculopathy at the time of his assessment.
4. On 16 June 2022, the applicant lodged an Application to Appeal Against the Decision of the Medical Assessor. The MAC was confirmed by the Medical Appeal Panel, finding that the clinical findings of the Medical Assessor were detailed and he was entitled to rely on his clinical findings and his clinical expertise on the day of assessment.

1. The applicant relies on a medicolegal report prepared by occupational physician, Dr Uthum Dias, dated 9 April 2021.
2. Dr Dias had regard to various radiological investigations and treating reports and recorded a history of injury that was consistent with the applicant's statement evidence.
3. The applicant told Dr Dias that he could not recall any previous injuries or pre-existing conditions affecting his lumbar spine.
4. Dr Dias recorded that the applicant presented to his general practitioner complaining of lower back pain on 13 June 2020 following an attempt at lifting a television at work. The applicant's symptoms resolved to their pre-incident levels within one to two weeks.
5. Treatment for the applicant's lumbar spine condition consisted of sporadic physiotherapy, analgesia, home exercises and regular use of topical ointment. The applicant had not undergone hydrotherapy or gym-based exercise program. The applicant was seen by neurosurgeon, Dr Bazina on two occasions in late 2020 and early 2021. The applicant remained under the care of his general practitioner, Dr Khan.
6. The applicant's current symptoms included ongoing moderate to severe lower back pain, stiffness and discomfort, intermittent radicular symptoms affecting his right and left lower limbs and moderate right calf swelling and pain. The applicant rated his symptoms of pain overall as 5/10 on the visual analogue scale. The applicant's symptoms significantly affected his sleep and his ability to walk, stand or sit for more than 20 minutes at a time. The applicant drove only very short distances of up to 5 minutes.
7. Dr Dias recorded his findings on examination which included neurological symptoms consistent with bilateral L5 radiculopathy.
8. Dr Dias diagnosed a persistent aggravation of previously asymptomatic degenerative lumbar spondylosis with associated persisting bilateral L5 radiculopathy secondary to an L5/S1 disc protrusion as well as chronic right popliteal vein/calf DVT secondary to prolonged immobilisation as a consequence of the lumbar spine injury.
9. Dr Dias said the prognosis was relatively poor. The applicant had suffered with ongoing symptomology in the lumbar spine for the previous 27 months. It was doubtful whether the applicant's symptomology and related disabilities would ever resolve to the point that he was pain-free.
10. Dr Dias was asked for an opinion as to whether the event complained of on 13 June 2020 was a temporary aggravation of the back injury or a new intervening event. Dr Dias responded:

"He recalls that he did lift a TV in early June 2020, which transiently increased his symptoms of lower back however the symptoms of lower back pain decreased at the level that it was prior to early June 2020 within approximately 2 to 3 weeks. The event complained of on 13th June 2020 was in my opinion a temporary exacerbation of his pre-existing low back injury sustained while employed with Medina Property Services and did not result in a permanent aggravation or alteration of his work-related low back injury sustained with Medina Property Services. In my opinion, the event complained of on 13th June 2020 no longer contributes to his current symptomatology, disabilities and impairments with respect to his lumbar spine condition."

1. Dr Dias was asked about the causes of the applicant's downgrade in capacity, attributing 50% to the applicant's poorly controlled epilepsy 50% to the chronic symptomatic lumbar spine condition stemming from a work-related injury.
2. Asked whether the applicant's current incapacity resulted from the work injury, Dr Dias stated:

"In my opinion Mr Kacevski's current incapacity for work is due to the work incident of 21 January 2019. In my opinion Mr Kacevski's chronic symptoms of lower back pain, stiffness and discomfort, his chronic right calf swelling and pain and his associated disabilities and reduced functional tolerances render him totally unfit to work in any gainful capacity within the scope of his previous education, training and experience."

"Since March 2019 he remained partially incapacitated for work until approximately July 2020. Since July 2020 as a result of his ongoing lower back condition, Mr Kacevski has remained totally unfit for any form of employment as a result of his compensable injuries. He remains totally unfit for work at the present time. Mr Kacevski's chronic symptomology and reduced functional tolerances with respect to his lumbar spine condition would preclude a sustainable return to the workforce in any job role that he would be qualified for by virtue of his previous education, training and experience. Mr Kacevski's previous job roles as a handyman/maintenance manager and as a TV/electrical goods installer, all involved a mix of prolonged walking, prolonged standing, bending and twisting of the lower back, frequent heavy lifting, heavy pulling and pushing, and frequent kneeling, squatting and crouching. His job roles in the hospitality industry in the 1980s all involved prolonged walking, prolonged standing, intermittent heavy lifting and intermittent bending and twisting of the lower back. A return to any job role that Mr Kacevski would be capable of performing within the scope of his previous education, training and experience would place Mr Kacevski's conditions at an unacceptable daily risk of aggravation."

1. Dr Dias expressed the opinion that the applicant's total incapacity for suitable gainful employment on the open labour market was likely to persist on an indefinite basis into the foreseeable future.

1. The respondent relies on medicolegal reports prepared by orthopaedic surgeon, Dr Robert Breit dated 19 July 2021, 2 August 2021, 23 August 2021 and 15 February 2022,

23 June 2023 and 24 August 2023. 2. In his report of 23 June 2023, Dr Breit took a history of the work injury that was broadly consistent with the other evidence. It was noted that the applicant was having physiotherapy twice a week following the injury and slowly increased his work until he stopped work in November 2019. 3. The applicant reported that he started his own business installing TVs and computers for JB Hi-Fi. The applicant stated that his son did the work and he would only help intermittently when two people were required, for instance trying to put a very large television on the wall. 4. Dr Breit performed an examination and considered the radiological investigations. Dr Breit agreed with Dr Dias's diagnosis. With regard to capacity, Dr Breit stated:

"With respect to return to pre-injury duties, he claims this was a mistake. I cannot indicate what the current situation may have been at that time. You will note his claims regarding work with his own company."

1. Dr Breit opined that the applicant was now partially incapacitated commenting,

"In my opinion he is partially incapacitated. He should not be working where there is bending, stooping, lifting or carrying."

1. Dr Breit said it was "highly likely" that the applicant suffered an aggravation of the disease in his lumbar spine in the course of his employment with Kace Installations Pty Ltd.
2. Asked whether the applicant's incapacity resulted from the injury with the respondent,

"Yes in part. I draw your attention to my supplementary report of 15.2.2022. I provided my reasons as to why I felt that his aggravation had ceased prior to starting his own business after which there was a further episode. The PIC however has deemed there to be an impairment from the injury with Medina Properties and that has legal standing. Noting the position of the Commission, I would indicate that half results from the injury with the insured and half from a subsequent injury with Kase Installations."

1. With regard to the extent of the applicant's incapacity, Dr Breit stated:

"This man could work a minimum of 5 hours a day 5 days a week in an area where there is no bending, stooping, lifting or carrying more than 8 kgs and in an area where he can sit, stand and move about according to comfort."

1. Dr Breit was asked further questions about the applicant's capacity and the effect of the incident on 13 June 2020 in his report of 24 August 2023. With regard to the incident on

"Yes, there has been a further aggravation, acceleration, and deterioration of a previous disease during the course of his employment with Kace Installations. At the time that he ceased employment with Medina Properties he returned to pre-injury duties and there is documentation over quite a number of consultations with his GP that does not mention any ongoing back complaints. It was the lifting of the television while employed by Kace Installations that resulted in the presenting symptomatology."

1. Asked whether the applicant's incapacity resulted from his injury with the respondent,

"This gentleman had already returned to pre-injury duties before he resigned from work at Medina Property Services, this was followed by multiple General Practice consultations which were unrelated but did not make mention of any ongoing lumbar spine issues."

1. The applicant claimed weekly compensation for a small portion of the first entitlement period, the balance of the second entitlement period and continuing pursuant to s 38 of the 1987 Act for 260 weeks.
2. The applicant referred the Commission to his statement evidence regarding his background, education and employment history. The applicant migrated to Australia as a teenager. The applicant did not complete high school and worked in roles including as a bartender, catering, handyman and maintenance officer.
3. Although the applicant had a background epileptic condition, he reported no prior problems with his back and the clinical material supported that proposition.
4. Following the injury, the applicant returned to work in suitable duties but the applicant's evidence was that his manager was unhappy and influenced the upgrade incapacity despite the applicant's ongoing symptoms. The applicant noted that it was also accepted that the applicant suffered DVT in the calf region as a secondary injury.
5. The applicant submitted that the clinical notes confirmed that the applicant continued to experience ongoing symptoms despite the return to work and the eventual certification of the applicant as fit to return to pre-injury duties.
6. The applicant noted that he felt the only way he could return to the workforce was to start his own business. The applicant's evidence was that he did not deal with the heavier aspects of the work. There were two statements from the applicant's son confirming that he was hired and performed the bulk of the physical work.
7. The applicant noted the incident on 13 June 2020 and expected that the respondent would submit that this constituted an intervening event. The applicant submitted that this submission would ignore the nature of the evidence which suggested that the event involved a temporary flare of symptoms. The applicant referred to the decision in State Government Insurance Commission v Oakley[1] (Oakley) and submitted that the case fell within the first or second category of cases described in that judgement.
8. The applicant referred the Commission to the clinical records described above. The applicant continued to undergo treatment while engaging in the return to work process. The applicant submitted that the clinical records did not demonstrate a substantial improvement in the applicant's condition but rather piecemeal increases in capacity after engagement with case manager and the applicant's employer.
9. The applicant noted the consultation on 13 June 2020 with regard to back pain after lifting weight at work in his own business. The applicant submitted that there was no further reference to this incident in the medical evidence other than in the medicolegal evidence.
10. The applicant noted that in October 2020 he sought to reopen his workers compensation claim due to back pain, increasing on bending. The applicant was certified as having no current work capacity.
11. The applicant observed that he was seen by Dr Bazina, who considered the prognosis for a return to work to be poor due to the applicant's persisting pain and disability. This view was consistent with the responses Dr Khan provided to the questions from the insurer, the MetLife claim form and the report from Dr Gotis-Graham. The applicant submitted that the clinical evidence regarding the applicant's condition suggested a maintenance of the status quo.
12. The applicant referred to the report from Dr Dias, who agreed that it was doubtful that the applicant's condition would ever resolve. Dr Dias considered that there was an unbroken causal chain between the injury with the respondent and the applicant's current condition. The applicant was initially partially incapacitated and then totally unfit for work since ceasing employment in his own business.
13. The applicant referred to the vocational report from Prof Athanasou, noting the applicant's limited education and skills. The report was consistent with the applicant being unfit for suitable employment and consistent with the opinions of Dr Bazina and Dr Dias.
14. The applicant referred to the reports of Dr Breit. Dr Breit considered the applicant could work with appropriate restrictions. Dr Breit did not engage with the treating evidence and whether there were actual jobs the applicant could perform. Dr Breit disregarded the evidence regarding the applicant's persisting pain and assumed there must be clinical confirmation of the applicant's symptoms, while ignoring the applicant's own evidence and the responses from Dr Khan to the insurer.
15. The applicant observed that the Medical Assessor found 6% WPI at the lumbar spine resulting from the workplace injury. The Medical Assessor accepted that the injury had resulted in permanent impairment. There were no prior conditions or injuries.
16. The applicant referred to the respondent's vocational reports and the attempt to identify alternative roles the applicant could perform. The applicant submitted that the evidence was inconsistent with the applicant having a physical capacity to perform the types of work identified. Regard also had to be given to the applicant's education, age and skills. The applicant submitted that there were no real jobs the applicant could perform and referred to the decision of Snell DP in G_radan Bathrooms Pty Ltd v Workers Compensation Nominal Insurer.[2]_ The applicant noted that he had worked in labouring roles for the last 20 years.
17. The applicant submitted that the Commission would be satisfied that he had a total incapacity, or only a small partial capacity initially, in respect of which there were no real jobs the applicant could perform.
18. With regard to the application of s 16 of the 1987 Act, the applicant submitted that there was no cessation of the original injury. The June 2020 event was recorded in one clinical entry. The applicant's evidence was that it involved a temporary flare with symptoms returning to the baseline following the work injury with the respondent. The work injury was continuing. The applicant referred against the decision in Oakley and submitted that the first or second categories were met.

1. The respondent noted that the applicant's submissions relied heavily on the applicant's own statement evidence and subjective reports of ongoing pain.
2. The respondent noted that there were inconsistencies in the applicant's evidence. The applicant claimed that when he started his new business in January 2020 he continued with back pain and discomfort. In contrast, the general practitioner's notes between December 2019 and June 2020 included some 20 consultations without a single mention of back pain. In this period, the applicant complained of toothaches, nasal blockages and various other ailments. No prescriptions for back pain were issued.
3. The respondent observed that the applicant was paid wages by the respondent until

25 December 2019. There was no entitlement to compensation prior to that date. The applicant's resignation letter indicated that he resigned because he was unhappy with how he was being treated without giving any indication that the resignation related to his injury. 4. The respondent observed that various issues had been identified in the evidence to explain the cessation of employment. The applicant's statement referred to the impact of the COVID-19 pandemic on his business. The clinical records also demonstrated that the applicant was unable to drive due to unrelated medical conditions and seizures. 5. The respondent submitted that there were internal inconsistencies in the applicant's and his son's evidence as to whether he lifted a television on or around 13 June 2020. The clinical note recorded on that date indicated that the applicant had been experiencing pain for approximately one week after lifting weights. 6. The respondent submitted that the Commission would be satisfied that the applicant's work injury with the respondent had resolved. The applicant then returned to other employment and re-injured his back. 7. The initial evidence including the certificates of capacity described the work injury as a "strain", which the respondent submitted would be considered a minor or lower level injury. The applicant's exercise physiologist on 28 November 2019 referred to stiffness in the right calf and some minor lower back pain when incorrectly completing a stretch two weeks earlier. The applicant reported that he was able to complete all current duties without any major difficulty. 8. After that date, in the six months of clinical notes that followed, there was no reference to back pain or the prescription of medication for pain. Then, following a specific event or second injury the applicant began reporting symptoms again. 9. The respondent noted that the applicant submitted that the second injury was a temporary aggravation. The respondent submitted that in fact the original injury was a temporary aggravation but the second event led to a permanent aggravation. The clinical records showed continuing reports of pain after the June incident. 10. The respondent also drew attention to the clinical record of 19 July 2020 indicating that the applicant had been hospitalised and could not work because he was unable to drive due to his epilepsy. On 29 July 2020, Dr Khan noted ongoing issues related to epilepsy and nocturnal events, memory loss, dizziness and not being able to drive. The respondent submitted that the back condition was a secondary concern in relation to incapacity. 11. The respondent submitted that in his response to the insurer's questions, Dr Khan described ongoing pain but could not say that it was ongoing from the time of the work injury. In October 2020, the applicant was issued with a new certificate of capacity with the same description as the previous certificates of capacity without any mention of the June injury. The respondent submitted that there had been no break in the reports of pain between the June incident and October 2020 unlike the gap between the first injury and the June incident. 12. The respondent noted that the applicant did not attend a consultation with Dr Bazina until October 2020. This was consistent with the work injury being only a mild injury. 13. The respondent observed that Dr Dias was an occupational physician, not an orthopaedic surgeon and did not address the six month gap in complaints of back pain. On this basis, the respondent submitted that Dr Dias's report would not be accepted. 14. The respondent further submitted that the Medical Assessor also assumed that the applicant had experienced continuing pain. The facts underpinning the MAC were said to be incorrect. 15. The respondent submitted that the applicant's company, Kace Installations Pty Ltd, was the last relevant employer and ought to be responding to the application. 16. Dr Breit's ultimate opinion was that the work injury with the respondent had ceased. The respondent submitted that Dr Breit's opinion was supported by the contemporaneous evidence and the functional capacity report.

1. The applicant submitted that the Commission would accept that not all symptoms would be recorded in the clinical notes for obvious reasons. The applicant's general practitioner had provided a report that was at odds with the respondent's submissions. The MAC also found a continuing injury.

1. Section 33 of the 1987 Act provides that 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.
2. The applicant in this case has been paid weekly compensation for less than 13 weeks. The applicant seeks payments of weekly compensation for the balance of 260 weeks from

3 December 2019 to 20 September 2024 pursuant to ss 36, 37 and 38 of the 1987 Act. These provisions require a determination as to whether, at all relevant times, the applicant had "current work capacity" or "no current work capacity" as a result of the injury. 3. These expressions were, relevantly in this case, defined in s 32A of the 1987 Act to mean:

"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 his or her pre-injury employment but is able to return to work in suitable employment.

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

1. It is the applicant who bears the onus of establishing, on the balance of probabilities, that he is entitled to weekly compensation in the period claimed.
2. There is no dispute in these proceedings that the applicant sustained an injury to his lumbar spine in the course of his employment with the respondent as well as a secondary DVT condition. There is also no dispute that the injury resulted in a total incapacity for work for a period of time from 22 January 2019 onwards.
3. In his written statements, the first of which was completed on 27 January 2022, the applicant stated that although he returned to work gradually from 18 February 2019, he continued to experience back pain but was a hard worker and wanted to work. The applicant said he managed his pain with analgesia but needed to rest at home at the end of each shift. The applicant's capacity continued to be upgraded until he was certified fit for pre-injury duties on or around 13 November 2019. At that stage, the applicant said he had persisting lower back pain and right calf swelling, other staff were assisting him with heavier tasks, he felt pressured to perform heavier tasks and this would flare up the lower back pain. The applicant said he resigned on 27 November 2019 because he could not cope with his work duties.
4. The respondent has submitted that the applicant's statement evidence ought to be compared with the contemporaneous treating records. The analysis of the treating evidence above indicates that the applicant's pain was totally incapacitating and required prescriptions of Panadeine Forte and Celebrex for the remainder of January and the first half of February 2019. Thereafter, the applicant's general practitioners and physiotherapist noted a slow improvement in the applicant's pain and his capacity to engage in work gradually increased. By 24 October 2019, the applicant was certified as fit to perform his pre-injury duties.
5. The records of the applicant's exercise physiologists at Be Active- Sydney include reports dated 22 October 2019 and 28 November 2019. The report dated 22 October 2019 indicated that the applicant's back pain symptoms were unchanged since the previous session and increased with repetitive tasks. The applicant was taking breaks as required. The applicant was concerned about a lack of progress in regard to his DVT, which was identified as the biggest barrier to return to pre-injury duties at that stage.
6. The exercise physiologist's report dated 28 November 2019 gives the most detailed, contemporaneous indication of the applicant's condition at the time he ceased work for the respondent. This report indicated that the applicant was continuing to experience tightness and stiffness in his right calf and had some minor lower back pain, particularly in the context of incorrectly completing a stretch two weeks earlier. The applicant reported that he was able to complete all duties without any major difficulty.
7. As noted by the respondent, the applicant's letter of resignation indicated dissatisfaction with the manner in which he was being treated by his employer but did not describe any incapacity or inability to cope with his work duties.
8. Having reviewed the contemporaneous evidence, I am satisfied that the applicant continued to experience symptoms, particularly in his right calf associated with the DVT diagnosis, as well as minor lower back pain, at the time he ceased work for the respondent. I accept that the effects of the injury were continuing. I note this conclusion is consistent with the findings of Medical Assessor Gothelf in his MAC.
9. I am not satisfied, however, that the applicant's injury was causing any incapacity for work by the time the applicant resigned. While the applicant has suggested that the certifications issued by his general practitioner were incorrect or unduly influenced by his manager who was unhappy with the applicant's restrictions and the insurer's case manager, the contemporaneous records show the applicant's condition was being carefully and actively managed by his various treatment providers over the course of 2019. A cautious approach to the applicant's return to pre-injury duties was demonstrated. The certificates are consistent with the treating reports and clinical notes. I prefer the contemporaneous records to the applicant's later recollection of events. I am satisfied that the certifications accurately represented the applicant's capacity for work at the time they were issued.
10. The respondent is correct in observing that in the period from late November 2019 until

13 June 2020 there is no evidence that the applicant sought, or was provided with, any treatment for symptoms related to his work injury other than the continuation of medication associated with the DVT condition. It is also correct that the applicant regularly sought medical assistance throughout this period for various other conditions, including relatively minor ailments. The respondent, supported by the ultimate opinion of Dr Breit, submits that absence of any reference to back pain in the clinical material during this period indicates that the work injury had resolved. I am not satisfied, however, that this inference ought to be drawn. 11. I accept that the applicant continued to experience ongoing symptoms, as described in the last exercise physiologist's report, albeit at a level which did not require medical intervention.

Dr Khan, who continued to treat the applicant throughout this period, indicated to the insurer that the applicant's symptoms had been ongoing. The records of the applicant's physiotherapist at PhysioFit on 30 July 2020 also indicated that the applicant's pain had improved up to Christmas albeit not to pre-injury levels. The lay evidence from both the applicant and his son is consistent with this conclusion. 12. While I accept that the applicant had persisting symptoms during this period, I am not satisfied that they were incapacitating. While the applicant, perhaps understandably, held concerns about his employability for various reasons, he had been able to perform his pre-injury duties, reportedly without any major difficulty, and was able to commence a business with his son in, which he coordinated the installation of televisions and other equipment on behalf of JB Hi Fi. 13. I accept that there is a degree of ambiguity in the evidence as to the applicant's role in the business. The applicant has denied performing any heavy manual lifting, leaving this to his son. The applicant's evidence did, however, indicate that he attempted to lift a television at work on or around 13 June 2020 and experienced a flare in lower back pain when doing so. 14. Mr Zoran Kacevski's first statement also indicated that the applicant lifted a television on or about 13 June 2020 although Mr Kacevski said he took most of the weight. This was said to be a light and quick job and Mr Kacevski said he did not observe the applicant to be in any increased pain afterwards. This account can be contrasted with Mr Kacevski's subsequent statement, in which he said the applicant attempted to but never actually lifted the television. 15. The most contemporaneous clinical account of the incident was recorded by Dr Khan on

13 June 2020. This described back pain for one week after lifting weight at work in his own business. 16. The evidence surrounding the incident is therefore unclear. It is unclear when the incident occurred and whether the incident involved the applicant successfully performing a lift or only attempting a lift. 17. What is clear is that there was a significant change in the applicant's condition as a result of the incident. The applicant's symptoms were sufficient for him to seek medical intervention for the first time in approximately six months. The applicant was prescribed Panamax and Volatren Osteo Gel and returned to physiotherapy under a care plan prepared by Dr Khan. 18. Around this time, the applicant was dealing with other significant medical conditions. These included an admission to hospital for a carbamazepine overdose. The need to reduce the applicant's epilepsy medication had led to a higher risk of seizures and an inability to drive. The applicant appears to have ceased work altogether in the context of both the increased back pain and these other medical conditions. 19. In October 2020, the applicant sought to reopen his workers compensation claim. Dr Khan certified the applicant as having no current work capacity for any employment as a result of the back injury from 9 October 2020 onwards. This certification was broadly supported by the reports from Dr Bazina who said the prognosis for a return to work was poor and the applicant's condition was permanent. The applicant was experiencing daily pain and stiffness. Dr Gotis-Graham also described the applicant's lumbar condition as chronic and stable with no chance of significant improvement in the next two years. Dr Khan elaborated on his opinion in his responses to the insurer's questions. The applicant's condition was described in that report as "ongoing" and affecting his capacity for work. The medicolegal evidence from Dr Dias is also consistent with the applicant being totally incapacitated for work from mid-2020 onwards. 20. The primary issue in these proceedings concerns the effect of the incident on or around

13 June 2020. 21. The respondent has submitted, supported by Dr Breit, that the incident resulted in a separate injury pursuant to s 4(b)(ii) of the 1987 Act and that s 16 of the 1987 Act provided, in those circumstances, that compensation was payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration. The respondent submitted that the last relevant employer was the applicant's company, Kace Installations Pty Ltd. 22. In this regard, I note that s 16(1) of the 1987 Act applies when an injury "consists in" the aggravation etc of a disease. In Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd[3] (Mecha) the Court of Appeal said the words, "injury consists in the aggravation ...of a disease" in s 16(1) should be construed as not referring to something which is an injury independently of its aggravating effects on a previously existing disease, but as being confined to what are entirely injuries by aggravation (Sheller JA at 616). 23. In Rail Services Australia v Dimovski[4] Hodgson JA referring to Mecha noted:

"The majority held that, although the injury on 11 February 1992 could fall within either paragraph (a) or (b)(ii) of the definition in s.4, the words 'injury consists in the aggravation...of a disease' in s. 16(1) should be construed as not referring to something which is an injury independently of its aggravating effects on a previously existing disease, but as being confined to what are entirely injuries by aggravation." (at [64])

1. The manner in which the incident on or around 13 June 2020 has been variously described suggests there was a frank incident involving a lift or an attempt at lifting a television causing an acute onset of more severe back symptoms. That is, an injury potentially falling within s 4(a) as well as s 4(b)(ii) of the 1987 Act. In light of the authorities above, I am not satisfied that s 16(1) of the 1987 Act assists the respondent.
2. The applicant relies on the decision in State Government Insurance Commission v Oakley[5] (Oakley). In Oakley, Malcolm CJ identified three categories of case where a subsequent injury is relevant to the assessment of damages consequential upon an earlier injury. While the Chief Justice's observations were made in the context of proceedings at common law, they have been found to be applicable to causation disputes under the statutory workers compensation scheme. The three categories were described as:

"(1) where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant's negligence, the added damage should be treated as caused by that negligence;

(2) where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; and

(3) where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include [sic] no element of aggravation of the earlier injury, the subsequent and further injury should be regarded as causally independent of the first."

1. The applicant submits that this case falls within either the first or second category described by Malcolm CJ. This requires me to consider first, whether the June 2020 incident would not have occurred had the applicant not been in the physical condition caused by the work injury. Alternately, I need to consider whether the damage sustained in the second incident was greater because of aggravation of the earlier injury.
2. In my view, there is insufficient medical evidence to support a finding that this case falls within either category one or category two. There is no direct medical opinion before me that the incident in June 2020 would not have occurred had it not been for the original workplace injury. The medical evidence suggests that the applicant, who is aged in his 60s, had pre-existing degenerative lumbar spondylosis before the work injury although it was asymptomatic. The workplace injury was initially described in the certificates of capacity as a "strain" and there is no evidence of any radiculopathy or lower limb symptoms until after the June 2020 event. Having found that the applicant's symptoms improved to a level that permitted the applicant to return to his previous employment, I am not satisfied that the evidence permits an inference to be drawn that the incident in June 2020 would not have occurred had it not been for the original workplace injury.
3. Nor is there any direct medical opinion that the incident around that time caused greater damage because of the persisting workplace injury. To the contrary, the applicant's own evidence and the expert opinion on which the applicant relies suggest that the incident in June 2020 resulted in a temporary or transient flare of symptoms before they returned to their previous levels. In the circumstances, I am not satisfied that it is possible to infer that the damage from event in June 2020 was greater because of the original injury.
4. It does remain necessary to consider whether any incapacity "resulted from" the work injury with the respondent. A commonsense evaluation of the causal chain is required. The applicable test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates,[6] where Kirby P said at [461] (Sheller and Powell JJA agreeing):

"From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate...

Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act."

"The result of the cases is that each case where causation is in issue in a workers' compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase 'results from', is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death 'results from' a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death 'results from' the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death 'resulted from' the work injury which is impugned."

1. As noted above, the applicant claims that the aggravation of symptoms that occurred in early June 2020 was transient or temporary, after which the applicant's symptoms returned to their previous level. I have found above that the earlier symptoms were persisting but not incapacitating in the period from when the applicant was certified as fit for pre-injury duties until the event in June 2020.
2. The medical opinions before me do not indicate that the increased symptoms and decline in capacity that occurred in mid 2020 were simply the result of an uninterrupted natural progression of the injury that occurred in January 2019.
3. Dr Khan described the applicant's back pain as ongoing and said that the symptoms described to him in October 2020 were the same symptoms the applicant had in relation to the work injury. Dr Khan has not, however, explained why those symptoms, which he certified were at a level which permitted a return to pre-injury duties as a hotel maintenance manager in November 2019, were causing total incapacity for any employment by October 2020.
4. The information given by Dr Khan on the MetLife Insurance form is extremely difficult to reconcile with Dr Khan's contemporaneous certifications. In the MetLife document, Dr Khan said the applicant had not been able to work since 25 December 2019, yet in November and December 2019 the applicant was certified as fit for his pre-injury duties.
5. While Dr Bazina has given an opinion on the nature of the pathology at the applicant's lumbar spine and its effect on the applicant's capacity for work at the time of her examination, she did not engage with the causal chain between the work injury in January 2019 and the applicant's presentation in October 2020.
6. The evidence from Dr Gotis-Graham can be characterised in the same way. Similarly, the vocational assessment performed by Prof Athanasou gave an indication of the applicant's presentation as at 14 December 2021, without providing any insight into the causal chain.
7. Dr Dias saw the applicant in April 2021. Dr Dias took a history of the work injury as well as the incident on or around 13 June 2020. Dr Dias noted that the applicant's symptoms after that incident resolved to their pre-incident levels within approximately two weeks.
8. As noted by the respondent, Dr Dias's report does not engage with the fact that the applicant was certified as fit for pre-injury duties in November 2019. Dr Dias did not comment on the evidence suggesting that in November 2019 the applicant was only experiencing minor back pain and right calf tightness and stiffness first thing in the morning and was able to complete his pre-injury duties without any major difficulties. Dr Dias did not comment on the fact that the applicant's symptoms did not require medical intervention after November 2019 until the incident in June 2020.
9. Dr Dias has not explained how the applicant's condition progressed to the point of total incapacity, if, as reported, the event in June 2020 only transiently increased the applicant's symptoms for approximately two weeks. Dr Dias's opinion that the applicant had been partially incapacitated until July 2020 and totally incapacitated thereafter is also extremely difficult to reconcile with the opinion that the event in June 2020 resulted in a temporary increase in symptoms before they returned to their previous levels.
10. While Dr Breit's opinions differed over time, ultimately he concluded that the incident involving the lifting of the television in June 2020 was the cause of the applicant's current symptomatology. I note that Dr Breit's opinion is consistent with the third category of case described in Oakley.
11. The applicant is asking the Commission in these proceedings to prefer his subsequent recollection of events as set out in his statement evidence and reported to his treating doctors and expert, over the contemporaneous records. I am prepared to accept that the applicant's work injury never fully resolved and that he continued on with minor symptoms of back pain and right calf stiffness despite being certified as fit for pre-injury duties in November 2019. I am not satisfied, however, that any incapacity resulted from the injury after November 2019 until the event in June 2020. While I am prepared to accept that the applicant has been totally or partially incapacitated for work after the June 2020 event, after carefully reviewing the evidence and the parties' submissions, I am not satisfied that the applicant has established on the balance of probabilities that such incapacity "resulted from" the work injury.
12. It follows that there will be an award for the respondent in respect of the claim for weekly compensation.
13. I am satisfied that the applicant continued to be entitled to compensation pursuant to s 60 of the 1987 Act for any reasonably necessary medical and related treatment resulting from the injury, subject to the limitations set out in s 59A of the 1987 Act. There will be a general order in favour of the applicant to that effect.

[1] 1990) 10 MVR 570; [1990] Aust Torts Reports 81-003.

[2] [2020] NSWWCCPD 36.

[3] [1998] NSWCC 51; (1998) 45 NSWLR 606.

[4] [2004] NSWCA 26.

[5] (1990) 10 MVR 570; [1990] Aust Torts Reports 81-003.

[6] (1994) 10 NSWCCR 796 at [810].