Dr Lee noting that the applicant has a long history of "symptoms related to his spine" initially developing low back pain in February 2022 after moving house which resulted in him needing a week off work. The pain did settle, and he was able to return to work. 23. Dr Ferch recorded that on 15 August 2022 the applicant was lifting milk crates when he developed increasing pain across his back and into his legs. The doctor recorded that the applicant's pain radiated "diffusely across his low back, up into his thoracic and cervical spine as well as into his buttocks and bilateral legs."[23] The doctor also recorded that the applicant was experiencing a feeling of numbness and tingling radiating down his right upper limb towards his hand. The applicant rated his typical neck pain at 8/10, his typical right arm pain at 7/10, his typical lower back pain at 9/10 and his typical bilateral leg pain at 8/10. 24. The doctor diagnosed cervical spondylosis and right upper limb pain as well as lumbar spondylosis with bilateral lower limb pain. The doctor suggested that the right upper limb pain may be substantially contributed to by median nerve compromise at the wrist which would be better evaluated by a nerve conduction study which he advised he would write to the insurer seeking approval for. 25. On 29 March 2023 Professor Robert Heard, neurologist, reported to Dr Ferch that nerve conduction studies were consistent with carpal tunnel syndrome. 26. On 18 April 2023 Dr Ferch reported to Dr Lee advising that the recent nerve conduction tests confirmed median nerve compromise at the wrists which affected both sides and which was the likely source of the hand numbness.[24] 27. On 26 April 2023 Mr Alex Holmes, physiotherapist, recorded that the applicant complained of a burning pain in his right hip.[25] 28. Associate Professor (A/Prof) Marc Russo, pain specialist, reported to Dr Lee on 17 May 2023 with a history of the applicant having sustained a work injury on 5 August 2022 when he was moving crates and "initially experienced low back pain and then that low back pain has persisted and has progressed to involve both neck pain, thoracic pain and low back pain."[26] The doctor suspected a "combination of physical deconditioning and myofascial pain although other components may be at work."[27]

1. On 23 November 2022 Dr Michael Edger, neurosurgeon, provided a forensic medical report to the respondent. Dr Edger records that the applicant complained of constant burning pain in the base of his spine with some associated pain in his right hip and numbness of his feet. The applicant also complained of a constant pulling sensation in the base of his neck which radiated across both shoulders as well as pins and needles in the entirety of the left hand as well as central thoracic pain. The lower back pain was the worst problem and could cause the applicant to drop to the ground at times.
2. Dr Edger records that the pain had been present since the workplace injury in August 2022. The applicant had severe low back pain the next morning when he woke.
3. In response to being asked for an assessment of the applicant's current pathology and diagnosis in relation to the work injury that occurred on 15 August 2022, Dr Edger diagnosed exacerbation of lumbar spondylosis causing low back and leg pain, possible right hip pathology as well as undiagnosed neck and thoracic spinal pain. In the doctor's opinion it was possible that the workplace injury caused an acute strain of the L4/5 facet joints, resulting in their inflammation and thus worsening his lower back pain.
4. In response to being asked to explain whether the diagnosis was consistent with the reported mechanism of injury the doctor observed that the MRI of the lumbar spine explained the symptoms to some extent, however the other areas of pain had not been adequately investigated to allow a diagnosis to be made.
5. In the opinion of Dr Edger employment is the main contributing factor with the doctor observing that there was no history of prior low back pain or injuries.
6. Dr Edger recommended that the applicant have MRI scans of the cervical and thoracic spine, an X-ray of the right hip and a bone scan of the whole spine to assess the causes of the spinal pain which may guide further treatment.
7. The applicant obtained a forensic medical report from Professor (Prof) Ghabrial, orthopaedic and spinal surgeon, dated 5 June 2024. Prof Ghabrial records a history that on

15 August 2022 the applicant developed quite intense pain in his neck and back with radiation to the right lower limb and pain in both hips and both hands as a result of carrying, twisting and lifting crates of milk to move and stack them in the cool room. 8. In the opinion of Prof Ghabrial, the applicant sustained injuries involving the whole spine, both hips and both hands on 15 August 2022. Based on the history provided by the applicant Prof Ghabrial considered the applicant's employment to be the main contributing factor to the applicant's clinical features, disabilities and impairment. Prof Ghabrial assessed impairments of the cervical spine, thoracic spine, lumbar spine, right hip, left hip, right hand and left hand. 9. Whilst Prof Ghabrial records his examination findings and comments on the findings of the radiological scans and nerve conduction tests performed, the doctor does not provide an opinion as to diagnosis nor provide his opinion as to the nature of the injuries sustained other than that the injuries sustained involved the whole spine, both hips and both hands. 10. Dr John Bosanquet, orthopaedic surgeon, provided a forensic report to the respondent dated 15 October 2024. Dr Bosanquet records a history of the applicant sustaining injury on

15 August 2022 whilst working in a cool room unpacking a pallet of milk and placing the milk on shelves. The doctor records that the duties were repetitive and that the applicant was reaching down from a height and was wearing cool room clothing. Dr Bosanquet records that the following day the applicant had severe low back pain. He saw his local doctor who performed scans of his back and neck. 11. The applicant also informed Dr Bosanquet that he had a fall in February 2023 when he was visiting a friend sustaining injury to his head and a fracture of T11. 12. In the opinion of Dr Bosanquet, the applicant only sustained injury to his lumbar spine on

15 August 2022. The injury being an aggravation of pre-existing degenerative changes. 13. In the opinion of Dr Bosanquet, the applicant has early arthritis in both hips which is age related as well as carpal tunnel syndrome affecting both hands/wrists. Both conditions in the doctor's opinion are unrelated to the injury at work. The doctor also did not consider the applicant's thoracic spine symptoms to be related to the work incident on 15 August 2022 but rather being due to age related degenerative changes.

1. There is no dispute that the applicant sustained injury as alleged to his lumbar spine. The respondent disputes that the applicant sustained the alleged injuries to the thoracic spine, cervical spine, hips and hands/wrists.
2. Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain_: Kooragang Cement Pty Ltd v Bates_ (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
3. The applicant bears the onus of establishing injury on the balance of probabilities. For a tribunal of fact to be satisfied on the balance of probabilities of the existence of a fact, it must feel an actual persuasion of the existence of that fact: see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw).
4. The Court of Appeal in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen) summarised the approach at [55] as follows:

"(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;

(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact's existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;

(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and

(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue."

1. I do not accept that the applicant sustained injury to his cervical spine as alleged for the following reasons.
2. It is the applicant's evidence that he felt a little stiff and sore by the end of his shift and when he woke the next morning, he was very sore "with a particularly painful back and neck" and that in the days immediately after receiving the alleged injury the pain in his back and neck was by far the worst and "almost all consuming." In the applicant's evidence his neck and back pain was so bad it distracted him from his other symptoms.
3. Following 15 August 2022, the applicant first attends on his GP, Dr Lee, some two weeks later on 2 September 2022. The clinical record of the consultation records a brief history of the events of 15 August 2022 and of slowly worsening "lower back pain." The doctor's clinical record of the attendance is relatively detailed recording details of the doctor's examination of the applicant which was limited to the lumbar spine and also records that the Workcover process was discussed and that capabilities and working hours were negotiated with the applicant. A plan was developed which included an MRI scan of the lumbar spine.
4. The clinical record contains no reference to or mention of any injury or complaints in respect to the cervical spine or neck. The absence of any mention of the neck or cervical spine is in my view significant, and inconsistent with the applicant's evidence as to the severity of the neck symptoms which he experienced directly following 15 August 2022.
5. The lack of any mention of any neck injury or complaints is made more significant by the fact that Dr Lee discussed the Workcover process with the applicant and negotiated with the applicant his capabilities and work hours. Any neck injury with the symptomatology which the applicant describes in his evidence would have been directly relevant to the assessment of the applicant's work capacity, especially given the manual nature of his work duties, and makes it highly unlikely that Dr Lee would not have recorded any neck injury or complaints if any had been reported. Not only is the neck not referred to in the clinical record of the applicant's attendance but it is also not recorded in the Certificate of Capacity completed by Dr Lee on 2 September 2022 which again only refers to a lower back injury.
6. The applicant next consulted Dr Lee on 20 September 2022 at which time a representative of the respondent was also in attendance. The clinical record of the attendance records "pain is at lower back area, not shooting down legs." The clinical record again contains no reference to or mention of any neck or cervical spine injuries or complaints.
7. On 23 September 2022 the applicant consulted Ms Currie who took a history that the applicant hurt his back moving milk crates with an onset of symptoms the next morning. Having recorded a history of the applicant having hurt his back moving crates of milk

Ms Currie then records the first mention in the clinical records of neck symptoms recording:

"Now getting pulling from neck down - R or L side." [Emphasis added]

1. In my view the clinical record of Ms Currie indicates that the development of the neck symptoms was a new and relatively recent event and was a new addition to the applicant's previous back complaints.
2. The applicant next consults a doctor on 27 September 2022 when he attends on the GP,

Dr James Herrman, wanting a "centrelink certificate re his chronic lower back/neck pain." This is the first mention of neck complaints in the GP clinical records following the alleged work injury on 15 August 2022. 3. On 8 October 2022 the applicant completed a claim form. The only body parts recorded in the claim form is the "[b]ack, spine." The claim form contains no reference to the neck or cervical spine having been injured which in my view is inconsistent with the severity of the neck symptoms described in the applicant's evidence. It is however consistent with the reports of neck symptoms to Ms Currie on 23 September 2002 as "Now getting pulling from neck down". The failure of the applicant to report any injury to his neck in the claim form is not explained by the applicant. 4. In my view the lack of any reported history of an injury to the cervical spine or neck in the above clinical records and the claim form is inconsistent with the applicant's evidence that he sustained injury to his neck and his evidence as the symptoms which he experienced following that alleged injury. 5. In my view the evidence is consistent with the applicant developing neck symptoms on or shortly before his attendance on Ms Currie on 23 September 2022. The clinical record of

Ms Currie is to the effect that the neck symptoms were a recent development. 6. It was submitted on behalf of the applicant that I should accept the opinion of Prof Ghabrial. I do not accept the opinion of Prof Ghabrial. Prof Ghabrial took a history of the applicant developing quite intense pain in his neck on 15 August 2022 as a result of carrying, twisting and lifting crates of milk to move and stack them in the cool room. As previously discussed, it is my view that the applicant first experienced neck symptoms on or just prior to

23 September 2022 not on or in the days following 15 August 2022. 7. I also do not accept that the applicant failed to report any neck injury to his treating health care providers due to being distracted by and focused on his lower back injury. This is inconsistent with the applicant's evidence that following the injury he was very sore "with a particularly painful back and neck" and that in the days immediately after receiving the alleged injury the pain in his back and neck was by far the worst and "almost all consuming." 8. There will be an award for the respondent in respect to the alleged injury to the neck/cervical spine.

1. I do not accept that the applicant sustained injury to his hips as alleged for the following reasons.
2. It is the applicant's evidence that he experienced pain in the area of both hips, particularly the right hip, in the days soon after 15 August 2022.
3. It is the applicant's evidence that following 15 August 2022 the pain in his back and neck was the worst and "almost all consuming." That his neck and back pain were so bad that it distracted him from his other symptoms.
4. As with the neck the clinical record of Dr Vu in respect to the applicant's consultation on

2 September 2022 records no mention of any injury or complaints in respect to the applicant's hips. Whilst it is the applicant's evidence that the back and neck pain was all consuming the applicant had not sought any treatment for the injury until over two weeks after the injury had been sustained and Dr Vu noted at the time of examination that the applicant was not taking any analgesia. The treatment plan developed at that stage included regular Panadol/ibuprofen. The applicant's back symptoms do subsequently escalate with

Dr Lee recording on 4 October 2022 that his pain was not improving but rather getting worse. On 20 September 2022 the applicant had been prescribed the powerful painkiller Endone. 5. Again, as with the neck there is no mention of any hip injury or complaints in the clinical record of Dr Lee for the consultation on 20 September 2022. The clinical notes of Ms Currie of 23 September 2022 and of Dr Herrman of 27 September 2022 also record no mention of any injury or complaints in respect to the hips. 6. As with the neck the claim form completed on 8 October 2022 records no mention of the applicant having sustained injury to his hips. 7. Significantly on 27 October 2022 Ms Currie recorded the following:

"Due to gait - hip is now starting to hurt." [Emphasis added]

1. Not only does the clinical note indicate that the pain in the hip was a new development, but the cause of the pain is identified as being due to the applicant's gait and not due to any injury having been sustained on 15 August 2022.
2. Prof Ghabrial took a history of the applicant developing pain in his hips on 15 August 2022 as a result of carrying, twisting and lifting crates of milk to move and stack them in the cool room. I do not accept the opinion of Prof Ghabrial. In my view the evidence does not support that the applicant experienced hip symptoms on 15 August 2022 or during the following days.
3. In my view the evidence supports that the applicant first experienced symptoms on or just prior to 27 October 2022. This is consistent with no hip injury having been recorded by the applicant in the claim form as well as there being no history of injury or complaints in respect to the hips being recorded by the applicant's GPs or by Ms Currie until 27 October 2022. This is also consistent with the clinical record of Ms Currie of 27 October 2022 which records that the applicant's hip was "now" beginning to hurt due to altered gait.
4. There will be an award for the respondent in respect to the alleged injury to the hips.

1. I do not accept that the applicant sustained injury to his wrists and hands as alleged for the following reasons.
2. It is the applicant's evidence that during the shift on 15 August 2022 his arms and hands felt very fatigued and shaky but not sore. That in the days immediately following he began experiencing minor numbness in both hands and light pain in his hands/wrists which would come and go.
3. It is the applicant's evidence that at this time the pain in his back and neck was the worst and "almost all consuming." That his neck and back pain was so bad it distracted him from his other symptoms, and it was not until the symptoms in his wrists and hands became more noticeable and it became clear that they were not going away that he started mentioning them to his treating doctors and physiotherapists.
4. There is no mention of the applicant having sustained injury or of symptoms in respect to his wrists and hands in the clinical record of Dr Lee for the applicant's initial attendance on

2 September 2022 nor in the Certificate of Capacity completed by Dr Lee on 2 September 2022, nor in the clinical record of Dr Lee of 20 September 2022. 5. On 23 September 2022 Ms Currie took a history that the applicant hurt his back moving milk crates with an onset of symptoms the next morning. The first mention of the applicant complaining of hand symptoms appears in the clinical record of this consultation with

Ms Currie. Ms Currie records that the applicant was getting some "P&Ns/tingling" in hands. I understand "P&Ns" to stand for pins and needles. 6. Whilst Ms Currie had recorded on 23 September 2022 that the applicant was getting some pins and needles/tingling in his hands the applicant did not record in the claim form which he completed on 8 October 2022 a history of any injury to his hands or wrists or any complaint of symptoms in his hands or wrists. 7. The failure of the applicant to record the hand and wrist condition in the claim form if he had sustained such injuries is inconsistent with his evidence that it was not until the symptoms in his wrists and hands became more noticeable and it became clear that they were not going away that he started mentioning them to his treating doctors and physiotherapists. The applicant had started mentioning the symptoms to his physiotherapist, Ms Currie, on

23 September which was some two weeks prior to the completion of the claim form. 8. On 23 November 2022 Dr Edger reported that the applicant complained of pins and needles in the entirety of the left hand. Dr Edger does not provide any opinion as to a causal connection between the applicant's work with the respondent and the symptoms in the left hand. 9. On 29 March 2023 Professor Robert Heard, neurologist, reported to Dr Ferch that nerve conduction studies were consistent with carpal tunnel syndrome. 10. Despite the applicant being diagnosed with carpal tunnel syndrome in March 2023 the first opinion as to there being any causal connection between work and the applicant's hand symptoms is not provided until Prof Ghabrial's forensic medical report of 5 June 2024. 11. Prof Ghabrial records a history that on 15 August 2022 the applicant developed pain in his neck and back with radiation to the right lower limb and pain in both hips and both hands which was quite intense as a result of carrying, twisting and lifting crates of milk to move and stack them in the cool. In the opinion of Prof Ghabrial, the applicant sustained injury to both hands during his employment with the respondent on 15 August 2022. 12. I do not accept the opinion of Prof Ghabrial. Firstly, in my view the evidence does not support that the applicant sustained injury to both wrists and hands on 15 August 2022. The failure of the applicant to record an injury to his hands and wrists in the claim form completed by the applicant on 8 October 2022 is not in my view, as previously discussed, explained by the applicant being distracted by his lower back symptoms. Secondly whilst the doctor records the findings of his examination of the applicant and comments on the findings on the radiological scans and nerve conduction tests performed the doctor does not provide an opinion as to how the injuries were sustained other than that the injuries sustained involved the whole spine, both hips and both hands. The doctor provides no reasoning for his opinion. 13. There will be an award for the respondent in respect to the alleged injuries to both hands and both wrists.

1. For the following reasons I accept and find that the applicant did sustain injury to his thoracic spine as alleged.
2. It is the applicant's evidence that his low back region was causing him the most pain however he was experiencing aches in other parts of his body such as his upper back which got worse over time.
3. Consistent with the applicant's evidence the clinical records of Dr Lee for the consultations with the applicant on 2 September 2022 and 20 September 2022 only refer to "lower back pain" and contain no reference to the middle or upper back.
4. The first mention of upper back pain appears in the clinical record of Ms Currie on

23 September 2022 with Ms Currie noting that the applicant had pain in his lower mid back as well pain in his middle upper back "sometimes". The clinical record indicates not only that the applicant had symptoms in his thoracic spine but that those symptoms had been occurring intermittently over a period of time. 5. Consistent with the applicant's evidence the upper back pain does not appear to have been the focus of the applicant's attention with Dr Herrman only referring to the lower back pain in his clinical record of 27 September 2022 even though the applicant had reported the upper back symptoms to Ms Currie just four days prior. 6. On 8 October 2022 the applicant completed a claim form. In respect to the parts of his body affected the applicant recorded "Back, spine" without specifying the lower back or lumbar spine. 7. The applicant continued to attend on Ms Currie and Dr Lee as well as consulting with

Dr Ferch however it is not until 17 November 2022 that there is another direct reference to the upper back with Ms Currie recording that the applicant had complained of upper back pain. Dr Edger then on 23 November 2022 recorded that the applicant complained of central thoracic pain. Dr Edger at this time recommends an MRI scan of the thoracic spine which

Dr Lee requests on 20 December 2022. The next direct reference to upper back pain then appears in the clinical record of Ms Currie dated 29 December 2022 where in a diagram the whole of the spine is shaded to show the symptomatic areas. 8. When the applicant consulted Ms Lawrence on 17 January 2023 he complained of a lot of upper back pain and on 9 February 2023 the areas treated by Ms Lawrence included the mid and upper back. 9. On 28 February 2023 Dr Ferch recorded that the applicant's pain radiates "diffusely" across his low back and up into his thoracic spine. Whilst Dr Ferch recoded ratings for the applicant's typical neck, right arm pain, lower back and bilateral leg pain the doctor did not record a rating for the thoracic spine pain or provide a diagnosis. 10. In my view the evidence supports that the applicant did sustain injury to his thoracic spine as alleged. The evidence supports that the thoracic spine symptoms were relatively mild, at least initially, compared to the lumbar spine and even once the applicant had complained of the symptoms they were such that little attention was paid to them and at least initially little treatment provided. The claim form completed by the applicant records the injury as having been sustained to the back and does not limit the injury to the lumbar spine or lower back where the focus of the treatment was at the time the claim form was completed. 11. The forensic reports of Prof Ghabrial and Dr Bosanquet are of limited assistance. Prof Ghabrial fails to provide any opinion as to diagnosis and does not explain the reasons for his opinion that the applicant sustained injury to his thoracic spine and why employment in his opinion is the main contributing factor. In the opinion of Dr Bosanquet, the thoracic spine was not injured at the time and the applicant's symptoms are due to age related degenerative changes. Dr Bosanquet's opinion appears to be based on the initial lack of recorded complaints. 12. As previously discussed, I am of the view that the applicant did sustain injury to the thoracic spine on 15 August 2022. Having considered all the evidence I am of the view that the injury was in the form of an aggravation of the pre-existing degenerative changes referred to by

Dr Bosanquet. There is no indication of any competing causes for the aggravation, and I am therefore of the view that the work injury is the main contributing factor to the aggravation.[28] 13. As I have found that the applicant sustained injury to his thoracic spine as alleged and there is an accepted injury to the lumbar spine the applicant will be referred to a Medical Assessor for impairment assessment.

[28] AV v AW [2020] NSWWCCPD 9.