I refer to the termination of my employment on 6 April 2022 for using my mobile phone while driving. As I said at the time to Frank, I made a bad error of judgement, and I'd never do this again.

I did not appreciate how seriously the company took the policy given the attitude of my co-workers, including an owner, who often use their mobile phone while operating heavy machinery.

I now understand this and regardless of the actions of my co-workers, I should have complied with the policy. I understand the seriousness of the breach and, more importantly, the danger of using my mobile telephone while driving my truck and to other road users and members of the public.

I continue to be partially capacitated for work due to my work-related injury and wish to return to work to aid my rehabilitation.

I am ready, willing, and able to return to work within the restrictions set out by my GP, which I've attach (sic).

Prior to my termination of employment, I had never received any warnings, and there had never been any other concerns raised regarding my performance or behaviour. If you agree to reinstate me, you can rest assured that I will not breach the policy regarding mobile phone use or any other policy again.

1. Neither Premix nor its lawyers responded to the applicant or his lawyers in any way.
2. The applicant recalled first seeing Mr Hawke in May 2022, after waiting some time for an appointment. Mr Hawke's advice included following a gym-based strength and conditioning exercise program, with regular reviews. Mr Hawke discussed and gave advice about specific exercises and weights he should do. The advised exercises were intended to load his spine as much as possible without aggravating it, to help build its strength.[17] The applicant followed that advice, plus performed other home-based exercises that he could do without causing pain. He returned to attending gyms, but only three to five times a week, for about 90 minutes a visit. The applicant described his current gym performance as "pathetic".[18] He also engaged in hydrotherapy, which involved leg and arm exercises in water, and swimming between 30 and 50 laps.[19]
3. The applicant did not return to performing certain exercises. They included a farmer's carry, walking lunges with weights, benching with 50 kg dumbbells, barbell military press, and seated rowing. He also could not lift weights as heavy or as often as previously.
4. Over the course of the applicant's consultations with Mr Hawke, the applicant told him of some contemporaneous events which caused temporary flare ups of his low back pain. They included falling while mopping a floor, falling over in shallow water at a beach, and some intimate activity.
5. In May 2022, the applicant followed a lead from a friend that the concrete company Sintom was looking for drivers. While still in pain, he felt he needed to work to earn money. As a result, he made an application, then underwent and passed both a practical truck driving test and a medical examination. He took some oxycontin before the medical. He said he hid his pain during the examination, including through 20 full squats and while holding a squat for 30 seconds. The applicant says he can do most things in pain, for example he could probably do a cartwheel, but it would cause pain. At the time of completing the medical questionnaire he denied any loss of full back function, admitting that was a lie.[20] He agreed he was prepared to lie to get that job.
6. The applicant started with Sintom in May 2022. He describes the job as involving less heavy manual work than with Premix. He did not have to load metal fibres, or form blocks from residue, and the output chutes were manipulated by a hydraulic arm. He found the work more manageable but continued to experience left sided lower back pain with fluctuating symptoms. He did not experience any incidents at work that made his back worse.
7. The applicant had two reasons for resigning on 22 August 2022. First, his back was getting worse, and he thought rest might improve it. Second, his father was seriously ill, and he wanted to spend more time with him. He only gave the second reason to Sintom, hoping to leave open the possibility of later returning to work.[21] The applicant's father died on 24 December 2022.
8. The applicant received the agent's determination of 30 September 2022 to reject his claim on the grounds he was not incapacitated. He disagreed because he continued to be partially restricted for heavy work by his pain experience that started in February 2022.
9. The persistence of symptoms led the applicant to consult Dr Rackham in October 2022. After various investigations, the applicant was advised of a surgical treatment option of fusing his L5/S1 joint. The applicant hoped the proposed surgery would resolve his symptoms.
10. In January 2024, the applicant deposed to being in pain every day from when he wakes up. He listed a range of daily activities that cause more pain, such as holding weights away from his body, bending to pick things off low shelves, and mowing a lawn.[22]
11. In oral evidence the applicant said he no longer had 'a tingly feeling down' his left leg.[23]
12. The applicant describes being motivated to return to strengthening exercises to maintain muscle mass to prepare his body for surgery.[24] At that stage he was on a waiting list at the RAH.
13. The applicant takes oxycodone daily. This helps with his pain experience and makes things 'a little bit more doable'.[25] He expressed concern over the significantly increased doses he is now taking for the same benefit after lower doses stopped working.[26]
14. Due to the surveillance evidence, it is necessary to summarise in some detail the applicant's descriptions of his gym-based exercises. This evidence was given before the surveillance evidence was disclosed and seen.
15. The applicant described in detail the named exercises he performs on a regular basis. None involve free weights. All loads used are significantly lighter than before his back injury. He described four chest exercises performed while his back is supported. They were bench press, incline bench press, incline and pec fly.[27] His bench press weights are now 100 kg instead of 140 kg. When he has finished a set of presses, he does not feel increased pain, just the same level of pain.[28] He performs side lateral raises with a cabled machine, as using dumbbells puts pressure on his back.
16. Regarding the applicant's statement of not being able to move things around home, he explained he can lift weights up to 25 kg close to his body, but he experiences pain in his left lower back if he holds even light weights away from his body.[29]
17. The applicant's back pain varies. At times he has to brace himself before a cough or sneeze. Some days he has difficulty getting in and out of a car, particularly one with a low seat.
18. The applicant denied the accusation he had faked the February incident when initially reporting it to the chiropractor and GP and later in the claim. He also denied the accusation he faked the March incident and the limping that was recorded by the truck's camera.
19. The applicant was shown the gym surveillance video for the first time after he had explained his strengthening regime. The vision included the applicant performing supported bench presses of 80 kg or 100 kg, as he had described. He was seen standing and walking around between sets. He was repeatedly shown sitting up from lying on a bench by extending his legs almost to horizontal while sitting up. He explained this shifted his centre of gravity and made sitting up easier_._ The applicant is also repeatedly shown putting one or two hands on a knee or thigh, and leaning forward, before rising to standing from seated. He said he did this to make standing from benches easier for his low back.
20. The applicant explained how he would contract his core muscles, before rolling onto a bench and before exercises. He understood this stabilised his core, so he only worked the targeted muscle groups.
21. The applicant is shown performing an incline fly with 20 kg plates, using rotating fixed arms, or cables, rather than dumbbells.
22. The applicant is seen using a side lateral raise machine, with pin operated plates. He did that exercise to "failure", as advised. Weights were reduced with successive sets, as he had stated was his practice.
23. The applicant is shown performing upright fly exercises, using a machine with a fixed armrest and back support and 70 or 75 kg weights. This exercise was recommended by Mr Hawke for building his "glutes" and back muscles.[30] The applicant said this did not cause any additional pain. He is seen getting up with hands on knees, then leaning to pick up the handles of his bag on the floor with his right hand while his left hand is still on his knee.
24. The applicant is shown at one point to pick up a 20 kg weight with one hand, without any observable difficulty, and to hold it against his body.
25. The applicant is shown performing additional machine-based exercises. None involve bending the low back. They include a triceps push down on a plate loaded machine, hip thrusts with pin loaded weights, using resistance bands around his legs, a seated hamstring curl, one legged dips with a broomstick bar, and a vertical fly press while seated.
26. In answer to the question of why he did not display any signs of being in pain, the applicant explained that he is in pain all the time including while in the gym performing controlled exercises.
27. The applicant said he is 'not going to walk around like a cripple.'[31]
28. The applicant added that he is 'not just going to sit around and become a slob. Like, I've been asked to become as fit as I can coming into surgery.'[32]
29. The applicant said the exercises were not creating any more pain than what was already there, otherwise he would not have done them.[33] If something is aggravated during exercises, he stops. He said the allegation that he was not experiencing pain in his low back based on his exercises was "outrageous".[34]
30. Brief videos of the applicant with a car on different days were also shown. The first is of him entering a car at a beach carpark. It is unremarkable. The second shows him exiting a car, walking a few paces with a limp, leaning forward slightly with one hand on a leg, spitting on the ground, then getting back in, again while limping.

1. James Rennie was consulted by the applicant on 21 and 28 February 2022, and on 2, 7, and 10 March 2022. His fees were paid by the applicant.
2. Dr Rennie's notes of the first consultation include: 'Pete Russell v/tall male, heavily muscled, said he hurt his back after picking up a concrete pump.'[35]
3. Based on that history, Dr Rennie performed neurological tests and found a nerve tension test indicated a neurological irritation. For that reason, he did not conduct any traditional chiropractic care and instead provided "dry needling" and some traction.[36]
4. Dr Rennie noted the applicant's indication at their first meeting that he was 'waiting to get in to see a prominent physiotherapist due to his friend having successful outcomes with this physio.'[37]

1. Anthony Hawke is a Physiotherapist who also holds a Masters in Sports Physiotherapy. Mr Hawke has a special interest in the spine. He has worked extensively with world class powerlifters through to recreational lifters. He also works with a range of other athletes, including national level soccer players and champion kickboxers. He was aware of the applicant prior to being consulted by him, as they had trained at the same gym for a period. Mr Hawke recalls the applicant as a very big man who trained frequently, lifting heavy loads.
2. Mr Hawke provided a report of 4 July 2024 to the applicant,[38] after being consulted by him for two years from 9 May 2022.
3. Mr Hawke had noted in July 2022 that the applicant's condition was improving, with better strength in his trunk. Mr Hawke later explained this was a reference to the muscles around the spine, including the anterior core muscles, the side core muscles, the obliques, the posterior core muscles, and the lumbar paraspinal muscles.[39]
4. Mr Hawke said the applicant's weight training was a focal part, and the most important component, of his discogenic rehabilitation.[40] Mr Hawke encourages these types of exercises to be performed with a stabilised core, that is, 'to make sure that they can create sufficient stiffness through the trunk to allow their arms to move when under load.'[41] The aim was 'to build a resilient system.' [42]
5. Mr Hawke's hypothesis was of an acute L5/S1 discogenic injury with S1 radiculopathy. This view was supported by the reported mechanism of the February injury, which involved bending with rotation.
6. Mr Hawke noted the importance of recognising the applicant's level of function before the injury:[43]

He was a very heavily muscled individual capable of lifting significant load in the gym, workplace and throughout his daily life. He would train 5-6x/week using heavy loads and fulfilling the role of a truck driver full time (which can also demand lifting to varying extents). Since these injuries Mr Russell's physical function have been in a steady decline towards his current function which is unable to work and training in the gym 1-2x/week with minimal loads/bodyweight loads.

1. Mr Hawke noted what he was told by the applicant about temporary aggravations he experienced during the period of consulting him. Mr Hawke's recommendation was to allow some rest and once the pain settled, to start reloading the spine through exercises.[44]
2. Mr Hawke viewed the surveillance video.
3. Mr Hawke said there were no exercises seen that he would not have recommended,[45] the weights were reasonable, and all had previously been discussed.[46] Mr Hawke stated the applicant was 'still in immense physical pain and is still very functionally limited from what they were before the initial injury',[47] with conservative management failing so far. Mr Hawke said the video did not show a high degree of functionality of the spine.[48]

1. Dr Tsokkos' first report was dated 13 January 2023.[49] Dr Tsokkos stated the applicant presented on 16 March 2022 'with back pain and pain radiating down his left leg to his toes, after he was lifting something a couple of weeks earlier.'[50] The applicant was seeing a chiropractor for treatment but was not improving. Dr Tsokkos provided an MRI referral due to his concern he had a bulging disc. The applicant had consulted her on 28 February 2022 about other issues but had not then mentioned any symptoms from the lifting incident.
2. Dr Tsokkos stated the applicant also attended on 30 March 2022 for a different issue, but he did not mention back pain and had not had the MRI. She presumed the pain had improved. She noted specific consultations about the back in July, August and September 2022.
3. Dr Tsokkos' diagnosis was of lower left back pain related to a disc bulge at L5/S1 and associated left S1 nerve root irritation/displacement seen on CT scan in April 2022.[51]
4. On 14 September 2022, the applicant reported to Dr Tsokkos he was getting to the point where he could not work. Dr Tsokkos arranged for a cortisone injection and a referral to a neurosurgeon.
5. On 23 November 2022, the applicant reported the pain was still bad, and he was still doing hydrotherapy six days a week and exercises through the physiotherapist.
6. Dr Tsokkos said the applicant was anxious and depressed about the pain and his situation,[52] but was not showing any non-organic symptoms.[53]
7. By July 2023, Dr Tsokkos said the applicant was still incapacitated by the March 2022 back injury. He needed to be able to alter his posture as required and could not lift heavy things.
8. Regarding causation, Dr Tsokkos stated the injury most likely occurred when the applicant lifted something in mid-February 2022. It 'seemed to have settled somewhat before he sustained further injury on 31 March 2022, when he fell off the back of a truck, rolling his ankle and hurting his back.'[54] Dr Tsokkos noted he continued working after the injury but found this "increasingly difficult".[55]
9. Dr Tsokkos supported the surgeon's recommendation of surgery, following the progression of symptoms over time despite various treatments. Dr Tsokkos stated: 'Mr Russell would most likely make a better recovery with surgical intervention, again guided by the recommendation of the Spinal Surgeon.'[56]
10. Dr Tsokkos' third report was dated 20 September 2024.[57] Regarding causation, Dr Tsokkos said both incidents contributed, with some settling of symptoms after the first. Regarding capacity, Dr Tsokkos said the applicant has been totally incapacitated since August 2022.
11. Dr Tsokkos was later shown the surveillance material. Dr Tsokkos did not agree with the proposition that the applicant's stated limits to his capacity were inconsistent with the gym activities. She said they were not comparable, for example bending to reach low shelves was very different to the supported exercises, and the images did not show him standing or bending his low back while exercising.[58]

1. Dr Rackham's first report to the GP of 26 October 2022 included a diagnosis of low back pain with left radicular leg pain following a work injury in March 2022.[59] He noted an active program of core strengthening and stretching exercises. He also noted a CT from April 2022 showed a small left-sided L5/S1 disc protrusion, and that he had ordered an MRI.
2. On 3 November 2022, Dr Rackham reported the MRI as not showing concerning compression of the lumbar nerve roots.[60] He then anticipated resolution of symptoms over time with non-operative management and treatment.
3. Dr Rackham's first medico-legal report was dated 8 February 2023.[61] The given diagnosis was lower back pain with mild lumbar spondylosis, without significant nerve root compression. Dr Rackham said the onset of symptoms in a previously asymptomatic person suggested the reported injury was their cause. Dr Rackham thought the applicant was then still partially incapacitated for his previous duties due to the March 2022 incident but was expected to return to moderate activity within six months.
4. In oral evidence, Dr Rackham added that the scenario was of an incident leading 'to persistent aggravation of an underlying degenerative finding.'[62]
5. Dr Rackham next reported to the respondent's agent on 3 April 2023.[63] He provided a current diagnosis of L5/S1 disc degeneration with left low back pain and left radicular pain. He said those findings were 'likely to at least in part have been present prior to the work injury.' Based on the report of the low back being asymptomatic prior to the work injury, Dr Rackham's view was the work injury had 'caused an aggravation of his underlying disc degeneration.'[64]
6. Dr Rackham described the 2023 MRI as showing the L5/S1 disc protrusion to be more prominent on the left side and contacting the traversing S1 nerve root.[65]
7. Dr Rackham said his finding of isolated pathology at L5/S1 was supported by anaesthetic discography which was positive at L5/S1 and negative at L4/L5.
8. Dr Rackham next reviewed the applicant and reported to his solicitors on 31 August 2023.[66] Dr Rackham described a 2015 MRI as showing some degeneration at L5/S1, but not as advanced as at the L4/L5 level.[67] Dr Rackham then compared a CT scan from 22 February 2021 with CT scans taken on 21 April 2022 and 14 March 2023. Dr Rackham stated the 2022 and 2023 CT's show 'progressive osteolysis (bone loss) of the L5 and S1 endplates adjacent to the L5/S1 disc.'[68] Dr Rackham gave this summary:[69]

[T]here is new disc signal change on MRI, isolated activity on bone scan and new progressive osteolysis at L5/S1. This has informed my view that this represents a separate and new injury and diagnosis to that documented in 2015.

1. In oral evidence, Dr Rackham elaborated on his reasons. He said the changed radiological findings had been more rapid than would normally be expected from regular disc degeneration. The 'relatively rapid change over a couple of years, was due to the workplace incident, ... which led to an aggravation of his underlying degeneration, and I was treating that problem.'[70] The change was "dramatic".[71]
2. Dr Rackham also referred to the 'isolated activity on bone scan at L5-S1',[72] and the absence of change at L4-5 over the same period, as supporting his conclusions.
3. Dr Rackham further explained the significance of the results of the CT and MRI taken on 22 April 2024 that recorded subchondral sclerosis, subchondral cysts and vacuum phenomena.[73] Dr Rackham said these pathologies and the osteolysis resulted from bone opposing bone and an inflammatory component. His explanations were supported by close up extracts of the associated investigations referred to.
4. In response to my question of whether physically demanding weightlifting could be the cause of the inflammation, Dr Rackham said he was not aware of 'literature to support saying that weightlifting would focally cause a problem at one level only.'[74] But if a sore joint was worked "really hard" inflammation could be made worse.[75]
5. The imaged bone loss, or lytic process, at the L5 and S1 vertebral endplates, with a progressive loss of disc height shown on the MRIs and CTs, was to be treated by anterior lumbar interbody fusion (ALIF) plus posterior fusion.[76] The aim was to stabilise the joint.
6. Dr Rackham's opinion of the surveillance video is that maybe the applicant was not experiencing the degree of impairment that was being reported, for example difficulty in tying up shoelaces.[77] The bench press exercises showed "good functional capacity", depending on what his symptoms were like afterwards.[78]
7. Dr Rackham agreed with a proposition that the bench presses appeared inconsistent with the reports of pain. He had not expected to see that level of capacity in the gym.[79] Dr Rackham was however pleased to see the applicant actively weight training in the gym. This was a good sign of the applicant trying to look after himself, 'rather than passively waiting for other people to fix them.'[80]
8. Dr Rackham said he would not recommend surgery, based on assumptions of serious exaggeration of symptoms put to him in cross-examination.[81] But Dr Rackham was not asked, and did not express an opinion that the applicant had seriously exaggerated his symptoms to him.
9. Dr Rackham said the objective of the proposed surgery was to achieve the sort of outcome that was shown on the surveillance.[82] I understand Dr Rackham's evidence to be that based on his impression of the video showing a higher level of capacity than he understood the applicant had, he no longer recommended the surgery. Without the proposed surgery, the joint would eventually become solid through being fused (ankylosed). The purpose of surgery is to hasten that process.[83]
10. In relation to the reported February 2022 incident causing low back and some left leg symptoms,[84] Dr Rackham said it was reasonable to consider it contributed to the observed findings.
11. In cross examination, Dr Rackham stated that a fall from standing height on sand would be a 'relatively trivial incident' unlikely to 'cause significant aggravation of underlying degeneration beyond a couple of weeks of having a sore back.'[85] Dr Rackham expressed a similar opinion regarding the reported fall while mopping in October 2022 with aggravated back pain before settling to the baseline symptoms.
12. There is no further information from Dr Rackham about the surgery he did perform in October 2025 on the applicant in a public hospital, other than it was the same surgery.

1. Dr Hwang provided a report dated 20 January 2023 for Employer's Mutual Limited ('EML') after examining the applicant on 13 January.
2. The history recorded by Dr Hwang included a 'minor back injury about four or five weeks prior to the claimed injury.' This had improved over a couple of weeks and so he did not pursue the MRI scan. However, the applicant's symptoms 'somewhat worsened over time' after Dr Munn's assessment.[86] The applicant reported being asymptomatic in relation to the reported pre-existing degenerative changes before commencing with Premix.
3. Dr Hwang said the applicant described himself as being a keen bodybuilder. In this context the applicant expressed significant concern over the 'loss of muscle bulk', and specifically that his left gluteal and hamstring muscles were wasting away, comparatively.[87] Dr Hwang stated the applicant appeared rather anxious about his back condition and being very keen to return to work but very worried about potentially worsening it.
4. The applicant described a 'very well localised area of pain' to the left side of the L5 level.[88] There was also a 'very small area of altered sensation on his left foot.'[89]
5. Dr Hwang's assessment was:[90]

Objectively it does not appear that his back injury was incapacitating. His cessation of work was complicated by the need to take time off work to look after his father. It would appear that his symptoms or pain perception has worsened since then. In the absence of a clearly identifiable new structural injury relating to the claimed injury of 31 March 2022, I do not consider that the worsening of his symptoms and increasing capacity is consistent with the effects of an ongoing injury of 31 March 2022. The worsening of symptoms may reflect natural progression of his underlying degenerative condition.

1. Dr Hwang also formed an impression that 'the further progression of his naturally occurring degenerative condition has likely superseded any symptoms relating to his strain injury.'[91] He added that a review of all documentation from the GP may provide a clearer picture of the progression of symptoms. Dr Hwang's opinion was unchanged in a further brief report on 3 January 2024, after being provided more documents by EML.[92]
2. Dr Hwang examined the applicant again on 24 July 2024, as reported on 2 August 2024_._ On that occasion, the applicant corrected Dr Hwang's previous history of his progress after the February incident, as having improved but not to 100%. The applicant also said he had muscular strains to his back seven years previously, which recovered 100%.[93]
3. Dr Hwang then summarised the additional information available to him, including the applicant's description of the concrete hose task, Dr Rennie's report of consultations in February and March 2022, and the GP's note of 16 March 2022. Dr Hwang hesitated to express opinions about causation and incapacity until he had seen all relevant clinical notes.
4. After seeing those, Dr Hwang provided a supplementary report dated 28 August 2024.[94] He concluded that despite the poor history, 'there did appear to be objective documentation confirming back pain relating to lifting a concrete pump, and in the case of documentation by Dr Tsokkos, mention of pain down the left leg.'[95] After reviewing all available information, Dr Hwang expressed this opinion regarding causation:[96]

In my opinion, against the background of pre-existing but previously asymptomatic L5/S1 disc degeneration, I consider that he sustained a further disc injury at the L5/S1 level relevant to the incident of 14 February 2022 triggering the onset of his left-sided lower back symptoms and radicular symptoms down his left leg. Unfortunately this has progressed over time. I consider that there may be other contributing factors such as the presence of the pre-existing degeneration in the first place and some further progression through its natural course. I note that he undertook weightlifting and this may have contributed towards the degeneration, however I am of the opinion that the incident of (or around) 14 February 2022 remains a significant contributing factor unless contradicted by other information available.

1. Dr Hwang's opinion regarding capacity was that the February 2022 injury continues to contribute to some partial incapacity.
2. In oral evidence Dr Hwang stated that he considered the applicant's reported pain and difficulty with tasks appeared to be greater than he expected based on the clinical and MRI findings.[97]
3. Dr Hwang did not agree with Dr Rackham as to the significance of the guided S1 nerve root injection. Dr Hwang said it may only suggest some pain originating from that region.[98]
4. Dr Hwang was pleased to see the applicant exercising in a gym. He acknowledged he was not an expert in gym exercises. The exercises appeared to have been undertaken with good technique. Dr Hwang said the bench presses were impressive, and entirely reasonable for someone with the applicant's imaged degenerative changes_._[99] The images of the "inclined chest flys" exercise shows the applicant's body leaning forward engaging the core, while the back was not fully supported. This exercise showed an impressive ability to engage his core and use adaptive techniques.
5. Dr Hwang could not say the applicant was not experiencing pain when in the gym, adding that he had patients with chronic back pain who returned to the gym.

1. Dr Pai is an Orthopaedic Surgeon who examined the applicant for EML on 26 April 2023. Dr Pai thought the pre-existing multi-level degeneration was made symptomatic by the injury event on 31 March 2022, but the persistence of symptoms beyond three months was likely due to the underlying pathology.[100]
2. Dr Pai provided a supplementary report dated 2 January 2024 after considering the records of Dr Rennie, Mr Hawke, the GP, and Dr Rackham's reports of 3 April and 29 August 2023. Dr Pai confirmed his original opinion.
3. Dr Pai saw the surveillance video. He thought that showed more ability than he expected from the reported symptoms. The applicant could drive a car, lift weights, do various activities and bend down. He could not see any modifications to exercises.[101] He described seeing heavy squats, although it's 'very difficult to say what sort of exercises he was doing.'[102]
4. Dr Pai assumed the applicant would avoid doing exercise if it resulted in a painful experience.
5. In cross examination, Dr Pai said the pathology was of longstanding degenerative changes.[103] He did not comment on Dr Rackham's opinion of rapid changes since early 2022.

1. An affidavit of Grant Aylen, the employer's HR manager, was tendered without cross examination.[104] In early April 2022, Mr Aylen was shown CCTV from inside the applicant's allocated truck that showed him driving while using a mobile phone on multiple occasions. Mr Aylen put the allegation to the applicant at a meeting on 5 April 2022. Mr Aylen deposed to the following events at the meeting:[105]

To the best of my recall, at first, Peter denied the allegations when they were first put to him but when we told him we had video footage of it, Peter acknowledged that he had used his phone while driving his truck and apologised for doing so.

1. Mr Aylen acknowledged receiving the applicant's email of April 2023 seeking suitable duties. My Aylen said Premix did not respond due to the seriousness of his previous misconduct.

1. An affidavit of Adrian Demicola, the employer's Production Manager, was tendered without cross examination.[106] He agrees with the applicant's general description of his everyday duties. He agrees the applicant 'put his hand up' when drivers were asked to volunteer to assist with the reinforcing process.[107]
2. Mr Demicola recalls the applicant asking him before the meeting on 5 April 2022 'to put in a good word for him with senior management.'[108] Mr Demicola did not attend the meeting.

1. The applicant submitted his credibility should be accepted: he was a witness of truth. All the attacks on him fell flat. His detailed description of his exercise regime in the gym was remarkably accurate when compared with the later produced surveillance material, down to the specific exercises and weights used. Importantly, all shown exercises were known to and supported by the treating physiotherapist Mr Hawke, who was in the best position to know what he was capable of doing in the gym.
2. The applicant's failure to report either incident to his employer until after the dismissal was not a credibility issue. He gave sound reasons for not doing so. However, he did make contemporaneous complaints of both incidents to Dr Rennie and his GP while still working. He had also sought an appointment with Mr Hawke before seeing Dr Rennie. He also gave a sound explanation of the different circumstances when he first hurt himself at Premix prior to 2022.
3. The applicant freely admitted to not giving some truthful answers regarding his injury history in pre-employment questioning. He gave reasons for doing so, based on personal experience and advice received.
4. The applicant freely admitted using his mobile phone while driving when questioned by his employer in April 2022. Even though his evidence is different to that of Mr Aylen it does not mean he is lying about that point.
5. The respondent's criticism of the extent of the applicant's disclosure of the criminal charges in 2017 was misplaced. The applicant did disclose that offending and the jail term he served. Even though it had no relevance to the compensation issues, it did explain a gap in his employment. He accepted in evidence that the offending involved a degree of dishonest conduct.
6. Drs Tsokkos and Rackham gave sound opinions based on all the available imaging that the work incidents were significant contributing events in making one of the underlying degenerated lumbar joints symptomatic on an ongoing basis. Dr Rackham's opinion should be preferred and accepted. He was the only expert who considered in detail the dramatic changes to the L5-S1 joint.
7. Dr Hwang's opinion also supports causation, with the reported February incident likely causing an ongoing significant aggravation of the pre-existing degeneration.
8. The applicant did not breach his obligation of mutuality through the misconduct of using his mobile phone while driving an agitator truck. That was said to be because the employer condoned that behaviour.[109] If mutuality had been breached, the applicant restored it by seeking and obtaining new employment that he then believed was within his capacity, and he safely performed it without incident. An additional act of restoration was the unanswered 26 April 2023 offer to perform suitable alternate duties with Premix.

1. The respondent submits the applicant's unsupported evidence should all be rejected as it lacks credibility. His prior criminal offending involving dishonesty is relevant background.
2. The surveillance evidence strongly contradicts the applicant's evidence of limitations and pain. His evidence of restrictions is inconsistent with his demonstrated capacity to perform the gym exercises shown on surveillance over multiple days. His evidence of not displaying any pain he had in the gym should not be accepted. His evidence of some assistance from pain medication should be rejected. He has exaggerated his physical restrictions, such as having difficulty tying up shoelaces and reaching objects on low shelves.
3. The applicant's credit was damaged by his unwillingness to agree with all the facts referred to in the sentencing Judge's reasons for sentence. Specific cited examples were submitted to show him lying about the extent of his involvement.
4. The applicant's evidence of admitting his phone use when questioned should be rejected. The unchallenged evidence of Mr Aylen to the opposite should be accepted.
5. The applicant's credibility is further damaged by Dr Rackham's opinion that the applicant's observed capacity in the gym was at the level aimed for by the proposed surgical treatment.
6. If causation is accepted, there is no reliable evidence of incapacity, based on the applicant's poor credibility and his ability to return to agitator truck driving within a couple of months of the March incident.
7. If partial incapacity is found, the applicant has no entitlement due to his misconduct leading to dismissal. That amounted to a breach of the obligation of mutuality inherent in claims for weekly payments of compensation. His apology and assurance of future compliance should not be accepted as sufficient to restore his mutuality. Nor should his obtaining of similar employment, or the genuineness of his letter of offer of April 2023 be accepted as restoring mutuality.

1. The employer does not accept that either claimed causal work incident occurred. It criticises the applicant for not producing more evidence of the circumstances of the February incident. It submits an adverse inference should be drawn that there was no such incident. It submits the applicant's complaints to Dr Rennie and his test results, and his complaints to the GP while he was still working, were all part of his elaborately faked injury.
2. If a work caused incident is accepted, the evidence at most supports a finding that any aggravation of the low back was of short duration only. The alleged continuation of symptoms and claimed incapacity should be rejected as not credible, but if accepted, they should be attributed to the effects of the other events reported to Mr Hawke, two of which happened shortly before the Sintom work ended.
3. In addition to endorsing the compensating authority's submissions regarding credibility and causation, the employer submits the applicant engaged in serious and wilful misconduct by using his mobile phone while driving. This conduct led to his dismissal and constituted a breach of his mutuality obligation. The obligation of mutuality was not restored and so there cannot be any weekly payments of compensation.
4. The circumstances admitted to both the employer and Court amount to serious and wilful misconduct by use of a mobile phone while driving an agitator truck on multiple occasions. That conduct was in breach of the Australian Road Rules, and the terms of the employment contract which required compliance with all driving laws. The applicant accepted the seriousness of his breaches in cross-examination.
5. The employer submits s 48(2)(e) applies. It contends the applicant's right to weekly payments (if causation and partial incapacity are proven), was retrospectively discontinued as of the date of his dismissal for serious and wilful misconduct in April 2022. It submits the principles preclude re-establishing mutuality where employment was properly terminated for serious and wilful misconduct after an injury was suffered but prior to an entitlement period to weekly payments. It relies on Full Bench obiter dicta in Sacco v LGAWCS No.2,[110] to the effect that because subsections 48(2)(e) and (f) are stand-alone provisions, the common law principles of reestablishing mutuality may not be imported into the discontinuance provision.

1. I commence with making findings about the circumstances of the claimed injury.
2. I accept the respondents' submissions that acceptance of the applicant's credibility is important to him proving his disputed allegations.

1. Prior to surveillance video being disclosed and shown to the applicant he was asked to describe his exercise regime. His descriptions were detailed and specific. The descriptions turned out to be remarkably accurate and precise when compared with what I subsequently saw.
2. The extensive video showed the applicant performing various exercises with smooth deliberate movements in sets with breaks.
3. I add there is no issue that the specific exercises shown on the videos were all approved by Mr Hawke, the treating physiotherapist.
4. The respondents' specific criticisms did not extend beyond the applicant appearing to grab his bag from the floor, or rise from a bench, without first propping an arm on a leg. I was unable to observe this on the limited views available, and so I reject that criticism. The respondents also suggest his back was not always appropriately supported when weight bearing. I was unable to observe that.
5. The vision shows the applicant's extraordinary strength. For example, at one point he appears to effortlessly pick up a 20kg weight with one hand. This adds to a general impression of superior physical abilities, but this is not directly relevant to the applicant's specific symptom complaints. The employer's submissions, which describe the exercises as "some pretty impressive gym exercises"[111], highlights this point. While vision of a well-muscled very large man repeatedly holding and moving weights that most people could not lift, does suggest immense physical capability without any impairment, that general impression is an unsafe guide to assessing the applicant's credibility. I consider assessing the applicant's credibility by reference to general impressions about his gym exercises that have been approved and reviewed by an expert physiotherapist is inappropriate in this case.
6. I reject the simplistic assumption that the applicant would not have exercised if he had the low back pain and restrictions he complained of. That is not consistent with the evidence of the applicant or the treating physiotherapist regarding the purpose of the exercises, or with Dr Rackham's or Dr Hwang's evidence. Engaging in gym-based strength and conditioning exercises aimed at helping to recover from painful injuries and later to best prepare for surgery is rational behaviour. The applicant's motivation to recover is also demonstrated by his unchallenged evidence of regular lap swimming and pool walking.
7. The surveillance includes vision of the applicant attending Dr Munn's clinic for the respondent in January 2023. The applicant is seen alighting from a car then bending over and putting his hands on his knees prior to coughing. That was consistent with his description of sometimes needing to brace himself before coughing. The applicant is also separately shown limping slightly after getting out of a car after arriving at a beach. While these actions could have been faked, they are more likely to be genuine, and as such support the applicant's evidence.
8. I reject the compensating authority's submissions that the applicant did not display observable signs of background pain in the gym because he had none, and that the pain medication did not assist at all. The underpinning assumption is flawed. There is no apparent reason why the applicant would intentionally or subconsciously display pain. His given explanation is understandable and reasonable. His gym visits seemed private, with little interaction with other gym users.
9. I reject the submission regarding the pain medication. The applicant's account of some benefit from the pain medication cannot fairly be dismissed. There is no medical evidence to this effect. Instead, the evidence shows the dose has gradually been increased under medical supervision to a concerningly high level to achieve some relief.
10. I reject the submission of inconsistency between the gym surveillance and the applicant's evidence of having difficulty at times tying up shoelaces and reaching objects on low shelves. There were no directly comparable postures shown in the vision, and no proper basis to infer inconsistency. I agree with Dr Tsokkos' opinion to the same effect.
11. Mr Hawke had no concerns about any of the video.
12. Dr Hwang gave a careful analysis and found no concerning actions, including performing the bench presses with the imaged disc degeneration.
13. Dr Pai thought the applicant's ability was more than he expected but acknowledged uncertainty about the sort of exercises being performed or their modification.
14. Dr Rackham provided a nuanced opinion about the video. The bench presses appeared inconsistent with the reports of pain, and he had not expected to see that level of capacity. The video was not consistent with what Dr Rackham understood he could do. But Dr Rackham was still pleased to see the applicant performing strengthening exercises.
15. Dr Rackham said he would not recommend surgery, based on assumptions of serious exaggeration of symptoms put to him in cross-examination.[112] But Dr Rackham was not asked, and did not express an opinion that the applicant had seriously exaggerated his symptoms to him. Dr Rackham did not conclude the applicant had been lying to him about his pain.
16. I accept the views of Mr Hawke, who best knew the applicant's exercise ability, Dr Hwang, who gave a considered experience-based opinion, and the GP, who best knew the applicant, regarding absence of inconsistency on the video. Dr Rackham was equivocal. Dr Pai was open that he was unsure what the images showed.
17. I conclude the vision does not reveal any inconsistency with the applicant's evidence of his capacity and pain experience. On balance, the vision supports the applicant's oral evidence.

1. I accept the applicant's lies about his back history when getting both jobs raises serious questions about his credibility.
2. I accept that the applicant may have been downplaying the significance of his 2015 back injury by describing it as muscular. The applicant did tell Mr Hawke he had not been 100% since then, although what he was measuring was not clarified. However, there is no evidence of any restrictions for the heavy work he performed for Premix until the February 2022 incident. The applicant's description is consistent with a lay understanding of back anatomy and was not challenged by reference to any medical evidence he would likely have known of.
3. The applicant is criticised for not producing evidence from Premix's customer or contractors who allegedly assisted to move the pump hose in the February incident. I should infer no such event occurred.
4. I reject that criticism. The applicant provided identifying information in his affidavit, filed well before the hearing. He attested to a date range, a detailed description of the private home site and the unusual access down a laneway and through double garage doors. As Premix knows where it sent the applicant each day, an inability to identify its customer after a diligent search cannot be assumed. Absent evidence from Premix that despite all reasonable enquiries it could not identify the site, or the concreting contractor whose crew were on site to finish the pour, the criticism of the applicant is unfounded. This information was clearly within the employer's "camp", and so no adverse inference can be justified.
5. A factor in favour of the applicant's credit is his compensation focus only on the Premix work without extending it to the Sintom work. That approach is consistent with his evidence of suffering new painful lower left back symptoms while working for Premix. There was no attempt to shift part of the blame for his injury to the second job.
6. The respondents submit some of the applicant's exchanges with counsel under cross-examination adversely affect his credibility. I disagree. While some were robust, they were not unusual responses to poorly put, or to what he found to be personally offensive questions, especially when interspersed with counsel's commentary.
7. I reject the attack on credit based on the difference between the applicant and Mr Aylen about whether the applicant initially denied use of a mobile phone while driving. I accept that is Mr Aylen's recollection without the benefit of any notes of the meeting. But there is other relevant evidence consistent with the applicant's versions that was not challenged. The applicant's email of 23 April 2023 included a reference to admitting the allegation to Frank. The applicant's affidavit also attested to admitting use of the phone to Frank before the meeting. He also gave evidence of asking Mr Demicola to put in a good word for him. I accept the applicant's unchallenged version of what he said to Frank before the meeting. I conclude that the admission to Frank, and to a lesser degree the request for a good word, are not consistent with denying the allegation soon afterwards. I conclude Mr Aylen's recollection is inaccurate.
8. Mr Hawke's evidence is relevant to the criticisms of the applicant. Mr Hawke was an impressive witness. I accept he has special expertise in treating athletes and in gym-based rehabilitation. I accept he advised the applicant about performing appropriate strength and conditioning exercises. That included reasoned advice to avoid certain types of exercises, e.g. farmers carry. I accept he conveyed to the applicant his therapeutic rationale of avoiding unsupported exercises that strained the low back, while working to strengthen his back muscles. If a flare up of symptoms occurred, he was to ease off until they abated, then reload. I accept Mr Hawke regularly reviewed the applicant's progress over many consultations.
9. I have kept an open mind about the possibility of the two work-related histories being false. I accept the applicant may have hurt himself out of work and he may have become concerned it could become a serious injury leading to time off work and a need for costly treatment. In an attempt to create a workers compensation entitlement in case his injury did not settle, and while still trying to avoid a claim, he may have salted two false work-related histories, weeks apart, when seeking early treatment.
10. I have taken account of other significant facts relevant to this theory. They are that he paid about $350 in treatment expenses with the chiropractor over four sessions, he saw his GP and asked for an MRI scan out of concern about his symptoms, and he had attempted to see Mr Hawke, all without making any claim. After the unexpected dismissal, the applicant did not just sit back and make a claim, he instead sought and obtained other suitable employment a few weeks later. He did not have the MRI. The purpose of the theorised plan when enacted in February 2022 is unclear in these circumstances.
11. Allied to this theory is the employer's criticism of the applicant for not reporting the injuries to Premix as required, and as he previously did. I accept that technical or contractual obligation, but also the common reality of subjective fear of job disadvantage or loss from reporting an injury, more so by inherently insecure casual employees. The applicant's evidence of subjective fear due to disapproval of his recent extended leave was not contradicted. I accordingly accept the subjective reasons given by the applicant for not doing so in February or March 2022.
12. I accept the applicant has previously committed a serious criminal offence, with some elements of dishonesty, and this background is relevant to assessing the applicant's credibility when giving evidence in support of his claim. However, I reject the attack on credit based on what the applicant voluntarily disclosed in his affidavit, and in not agreeing with all of the sentencing Judge's brief summary of relevant circumstances.
13. Firstly, the applicant deposed to accepting responsibility for his wrongdoing. Secondly, the applicant understated this by deposing to being found guilty, when he in fact pleaded guilty. Thirdly, the sentence was overturned by the Court of Appeal for reasons not provided to this Court. Without any understanding of the errors of the sentencing Judge, the applicant cannot be fairly criticised for disagreeing with some of the Judge's remarks. Fourthly, there is no evidence the illegally imported steroids were addictive or had any connection to the claimed or historical injuries.
14. Finally, I have formed a positive view of the manner of the applicant's evidence. It was responsive, open, detailed, and without evasiveness.
15. Having regard to all the above considerations, I conclude that on balance the applicant's credibility should be accepted. I accordingly accept his oral evidence about the circumstances of the initiating incidents at work, about the course of his symptoms since then, and about his continuing unfitness from 23 August 2022 for agitator truck driving and delivery work.
16. I next consider the medical opinion evidence.
17. The most significant evidence is that of Dr Rackham. An accepted history of first onset of symptoms down the left leg in the February 2022 incident was important. I find that history was accurate. He also placed significance on the rapid progression of the affected joint since the onset of the reported symptoms, by reliance on detailed imaging and his clinical experience.
18. The minor difference with Dr Hwang about the probability of reliable results from the guided nerve root injection at S1 is resolved by accepting Dr Rackham's view that the reliability of the results is likely confirmed by them matching the available objective investigation data.
19. Dr Rackham's evidence was of a strong match between the continuing localised lower left lumbar symptoms and the imaged pathology over time. His detailed description of the pathological changes and of the supporting imaging was not contradicted by Dr Pai or Dr Hwang.
20. For these reasons, I prefer and accept the opinion of Dr Rackham as to causation and the continuation of the reported lower back symptoms_._
21. I reject the theory the activities reported to Mr Hawke as causing some aggravation continued to cause the applicant's symptoms. I accept Dr Rackham's rejection of the theory, which is also not consistent with Mr Hawke's or the applicant's accepted evidence.
22. I conclude the applicant did suffer work related injuries in February and March 2022 as alleged. I accept they continued to cause symptoms of pain and restrictions. I accept that the Premix and Sintom work duties caused small aggravations or flare ups of his symptoms. I accept these symptoms were a significant reason for ceasing the lighter Sintom duties. I find the applicant continued to be partially incapacitated for his usual employment throughout the claim period and continuing to when he gave evidence.
23. There is an additional issue about when the entitlement period starts. The applicant submits it started on 24 August 2022, the first day of lost time due to partial incapacity. I disagree. The entitlement period to income support for partial incapacity resulting from the February and March injuries commenced when the applicant was first incapacitated. The effect of s 4(11) is that the first date of incapacity is fixed by the date of 'an entitlement to a payment under Part 4 Division 4 Subdivision 2 on account of that incapacity.' That date was the day after ceasing the Premix work. While the revised claim starts from 24 August 2022, that cannot alter the commencement date of the entitlement period.

1. The applicant agrees that the issue of his possible breach of mutuality arises from the circumstances of his dismissal from Premix in April after he had sustained injury in February and March, but before he had any time off from work as a result.
2. I agree with the employer's submission that the applicant was justifiably dismissed for serious and wilful misconduct for his multiple uses of a mobile phone while driving an agitator truck. The obligation not to do so was properly admitted as a serious breach of the law governing driving, with a range of resulting risks of extremely serious harm to others and to himself. The applicant's evidence that he believed the practice was condoned by Premix, despite its policies to the contrary, missed the point. Even if there was an objective basis to that belief, which there is not, the applicant had a personal obligation to drive trucks safely and within the law. His apology and assurance it would not happen again did not cure the seriousness of the misconduct at the time.
3. The present enquiry is whether the dismissal for serious and wilful misconduct was justified, not whether the dismissal was harsh or unreasonable. I conclude the dismissal was justified. I conclude the applicant thereby breached his obligation of mutuality.

1. The relevant circumstances are that the applicant then sought and obtained other similar but less demanding employment with Sintom. To do so he relevantly had to pass a practical truck driving test. He disclosed his previous Premix employment.
2. I accept his evidence that the work was a little lighter, but that it turned out to be beyond his remaining work capacity due to an increasing inability to cope with his continuing symptoms. I find the applicant discharged that employment for about three months without any apparent complaint. I find this was a reasonable and successful effort to take up what he hoped would be suitable employment at another place of employment. I find that the reasons for dismissal from Premix ceased to compromise his residual earning capacity by the time he started work for Sintom.
3. I reject the employer's submission that restoration of mutuality is not available to the applicant. That submission is not consistent with the Full Bench decision in Sacco v LGAWCS No. 2[113] Nor does s 48(2) apply because the applicant's entitlements were not discontinued.
4. I find the applicant's actions of seeking, securing and performing suitable alternate employment had restored his obligation of mutuality by 24 August 2022.
5. If this finding is incorrect, I find in the alternative that mutuality was restored by the applicant's unanswered letter to Premix of April 2023. This acknowledged his misconduct, conveyed his willingness and ability to return to suitable duties and to comply with company rules and driving laws. It was written after a period of driving similar trucks for Sintom without any issue regarding safe driving. The fact the letter was drafted with legal assistance does not detract from its intent. It is entirely conventional and appropriate for an injured worker (and their employer) to receive legal advice and assistance about the complex concept of restoration of mutuality, and to respond accordingly. There is no evidence it would not have been possible for the applicant to return to Premix, subject to suitable duties being available. For completeness, I find there is no evidence to support the employer's speculative submission of the applicant not wanting to return to Premix.

1. I set aside the decisions to reject the claim for compensation. I determine the claims are compensable. The entitlement period commenced on 6 April 2022. The applicant is entitled to weekly payments from 24 August 2022 for the balance of the entitlement period. The applicant is entitled to reimbursement of all medical expenses incurred in relation to the injuries until 12 months after the end of the entitlement period.
2. The applicant is entitled to an order for costs, in accordance with the Act. I will hear from the parties about the terms of final orders, including the rate of AWE.

[110] [2020] SAET 112.

[113] [2020] SAET 112, at [53] to [56].