PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. This matter was listed for conciliation and arbitration on 28 October 2025. Mr Paul Macken appeared for the applicant. Mr Doak of counsel appeared for the first respondent, instructed by Mr Dolan. Mr Stockley of counsel appeared for the second respondent, instructed by

Mr Bonura. 2. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute. 3. Both respondents objected to additional documents filed by the applicant on

21 October 2025, which were statements from David Tucker and Paula Brady, some clinical notes from Ms Jelassi's general practitioner, Dr Kirlous, and a medical report from

Dr Edwards dated 17 September 2025. I gave short oral reasons at the hearing as to why those documents were to be admitted into evidence.

1. The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:

(a) Application to Resolve a Dispute and attached documents;

(b) Reply filed by first respondent;

(c) Reply filed by second respondent, and

(d) Application to Lodge Additional Documents filed by the applicant on

21 October 2025.

1. There was no application to adduce oral evidence or cross-examine Ms Jelassi, or any other witnesses who have provided statements in this dispute.

1. Mounira Jelassi has provided a statement dated 4 August 2025.
2. Ms Jelassi states that around 5.00pm on 31 October 2024 she was going to the kitchen area at her workplace when she tripped on a broken step and fell backwards onto the edge of the steps. She states that she was in shock and screamed out in pain. She states that a co-worker, Laura Pymble, came to her aid.
3. Ms Jelassi states that she took some Nurofen and rested for a brief time, and then

Ms Pymble assisted her to walk to the train station. 4. Ms Jelassi states that she was in severe pain and discomfort upon reaching her home, and she attended the Emergency Department of St George Hospital later that day. 5. Ms Jelassi thereafter sought treatment from her general practitioner, Dr Kirlous. She was referred for several different scans of her lower back and spine. She was referred to A/Prof Ghahreman for specialist treatment. 6. Ms Jelassi states that she continues to be certified unfit for work. She is continuing with physiotherapy on a weekly basis and taking various medications prescribed by her general practitioner.

1. Laura Pymble has provided a statement dated 31 October 2024. Ms Pymble states that she was approximately 4m away from Ms Jelassi when heard the thud of Ms Jelassi falling down a step and then heard her moaning in pain. She states that she then found Ms Jelassi lying on the ground and complaining of a burning coccyx.
2. Ms Pymble states that she walked with Ms Jelassi to the train station, and that Ms Jelassi could not walk more than 10m at a time without having a break due to her pain.

1. David Tucker has provided a statement dated 1 October 2025. Mr Tucker states that he is a director of The Well Skin Clinics Pty Ltd.
2. Mr Tucker states that he was not at the clinic on 31 October 2024 when Ms Jelassi claims to have sustained an injury to her lower back. He states that he spoke to Ms Jelassi at 3.20pm that day and there was no mention of any incident at work.
3. Mr Tucker states that in early October 2024 a decision was made to close the business following a very bad trading month, and he gave five weeks notice to Ms Jelassi on

18 October 2024 of the termination of her employment. He states that Ms Jelassi was very upset about this, and she was concerned about her ongoing ability to financially provide for her mother and daughter.

1. There is a discharge summary from St George Hospital dated 31 October 2024 which includes the following:

"Fall at workplace (beauty dermal therapist) at approximately 17:30

Fell onto bottom/lower back in kitchen while carrying cups

Difficulty with stairs, increasing pain after returning home

1. The notes on examination included the following:

"Fall with possible soft tissue injury to lower back/hip

Unlikely to have had bony injury - will rule out with XR

I have discussed with patient that this is likely to be soft tissue injury post fall

encourage rest, regular analgesia and anti-inflammatories"

1. The clinical notes from Dr Kirlous are not in evidence, but there is a summary of those notes contained in a report from Dr Edwards dated 17 September 2025, and no objection was taken to that summary by any of the parties to the dispute.
2. The first entry from Dr Kirlous after 31 October 2024 is on 2 November 2024 for "check up". The next entry is on 4 November 2024 which includes: "hurt her back with referred pain in the right lower limb", but also: "back was not red, not swollen, not hot, was tender, no laceration, no contusion, restriction present, no crepitus".
3. There are another 11 entries between 15 November 2024 and 20 June 2025 which refer to back pain. A referral for physiotherapy on 15 November 2024 lists current medications to include Endone and Panadeine Forte.
4. There are no Certificates of Capacity in evidence other than a certificate dated 8 July 2025 which certifies Ms Jelassi as having no current work capacity.
5. Ms Jelassi has undergone several scans as part of her treatment. A CT scan report of the lumbar spine dated 5 November 2024 reports mild disc degenerative change at L4/5 with minor narrowing at L3/4 and L4/5, and facet joint degenerative change at L4/5. The report from that scan does not record any evidence of nerve compression. Nor does an MRI scan dated 16 March 2025.
6. A bone scan report dated 30 May 2025 reports no active arthritis in the spinal facet joints. A nerve conduction study report dated 2 June 2025 concludes: "Normal study".
7. There is a report from A/Prof Ghahreman, neurosurgeon, dated 9 April 2025. A/Prof Ghahreman records that Ms Jelassi hit her back on the sharp edge of a broken step on

31 October 2024. He finds that Ms Jelassi has a normal gait, but she is unable to squat on the right leg. He finds that sensory function in the lower extremities was normal. A/Prof Ghahreman concludes that there "was facet arthropathy at L4/5 which has potentially been aggravated by the fall due to inflammation". 8. There is a further report from A/Prof Ghahreman dated 14 July 2025. He writes that the nerve conduction study was normal and the EMG was inconclusive. He orders more tests to exclude other causes of weakness in the right leg. He does not add any further opinion as to the cause of his patient's lower back pain. 9. Dr Moloney has provided a report at the request of the first respondent dated 11 June 2025. His examination was conducted on 22 May 2025. 10. Dr Moloney records details of the fall on 31 October 2024 consistent with the evidence provided by Ms Jelassi. He finds her movements to be painful to the right side, and her pain referable to the facets of L3/4 and L4/5 on the right side. 11. Dr Moloney records that Ms Jelassi remains under the care of Dr Kirlous and currently receives a certificate of capacity indicating no capacity for work. 12. Dr Moloney concludes:

"I do not believe that there are inconsistencies between history, examination and findings on investigation. Of note, the history is consistent with some facet joint or sacroiliac joint disruption. CT scan is consistent with the above being possibilities. The MRI scan does not show nerve root compression; however, the pathology is thought to be within facets and possibly sacroiliac joints. She had a diagnostically positive injection carried out on 8 May."

1. Dr Moloney also opines that although Ms Jelassi does have degenerative change in the lumbar spine at L3/4 and L4/5, these changes have been aggravated and possibly accelerated by the injury and are now symptomatic. He considers that it is unlikely that

Ms Jelassi would be symptomatic at this time were it not for the injury on 31 October 2024. He considers that the aggravation/acceleration has not as yet ceased because of her ongoing pain. 2. Dr Moloney is asked if a recent certificate of capacity "is a true reflection of their capacity for volunteer duties?" and replies the certificate is reasonable given the amount of pain that

Ms Jelassi is in. He believes there should be an improvement in her symptoms once there is adequately directed treatment to the facets of the lower back. 3. The report from Dr Edwards, surgeon, dated 17 September 2025 has been provided at the request of the applicant. Dr Edwards records details of the fall on 31 October 2024 consistent with the evidence provided by Ms Jelassi. 4. Dr Edwards found Ms Jelassi to walk in a very hesitant manner, and he records that his examination of Ms Jelassi was difficult and limited by her complaints of pain. He records that it was pointless pursuing the examination when Ms Jelassi complained that she could not take one step onto the examination couch due to her pain. Dr Edwards concludes that her complaints are not confirmed by clinical findings and that there is evidence of exaggeration or fabrication. 5. Dr Edwards opines that Ms Jelassi may have had a soft tissue injury to her lumbar spine, but there was no significant injury as a result of her fall. He does not consider that her employment can be reasonably said to be a substantial contributing factor to her current complaints by way of any pathology being caused by the fall. 6. Dr Edwards states that he cannot see any reason why Ms Jelassi would not be able to return to work as dermal therapist, which he understands is not particularly strenuous.

1. The issue as to whether Ms Jelassi actually sustained an injury to her lower back in the course of her employment was not pursued with much vigour by the applicant. There is overwhelming evidence that Ms Jelassi meets the criteria for a 'personal injury' (s 4 of the 1987 Act) as described by Gleeson CJ and Kirby J in Kennedy Cleaning Services v Petkoska [2000] HCA 45; 200 CLR 286 (Petkoska) at [39], being: "a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state".
2. There is the evidence from Ms Jelassi of experiencing sudden pain in her lower back when she fell onto the steps at her workplace and then ongoing pain that led to her attending St George Hospital later that day. The evidence from Ms Pymble is that she observed

Ms Jelassi complaining of pain while lying on the ground and Ms Jelassi having difficulty in walking to the train station due to her pain. 3. Most significantly, there are the details from the discharge summary from St George Hospital, which record a history of the fall and findings on examination of tenderness over the sacral spine, bruising over the right buttock, and an antalgic gait. 4. Mr Macken on behalf of the applicant points out that is no reference in the notes from

Dr Kirlous on 2 November 2024 of any injury to the back or complaints of back pain. However, there is reference to that just two days later, and there are then multiple entries for treatment for the lower back pain over the ensuing months. 5. Mr Macken also refers to the notes on 4 November 2024 of "back was not red, not swollen, not hot" and "no contusion". However, the notes also refer to the back being tender and "restriction present", which is consistent with some of the findings on examination which were recorded in the discharge summary from St George Hospital. It is also reasonable to conclude that there may have been some reduction in bruising and swelling in the four days following the injury. 6. I am satisfied from the evidence which I have reviewed that Ms Jelassi did sustain an injury to her lower back in the course of her employment with the applicant on 31 October 2024. 7. The applicant's submissions which challenge the claim made by Ms Jelassi really concentrate on the extent and effects of the injury sustained by her. Mr Macken submits that there is no evidence of any pathological alteration to Ms Jelassi's lower back. He refers to the various scan reports which record no significant pathology in the lower back which warrant the complaints made by Ms Jelassi and the payments which have been made by the first respondent. He submits that the opinion of Dr Edwards should be preferred because he has undertaken a comprehensive review of the medical material and examination of

Ms Jelassi. 8. I prefer the opinions of A/Prof Ghahreman and Dr Moloney regarding the effects of the injury sustained by Ms Jelassi up until the date of the notice issued by the first respondent on

2 June 2025. 9. A/Prof Ghahreman has only seen Ms Jelassi on two occasions, but he does have the responsibility as the treating specialist to diagnose and treat the condition which Ms Jelassi presents with. He opines following his first consultation that the facet arthropathy at L4/5 "has potentially been aggravated by the fall". That opinion on its own does not meet the burden of proof on the balance of probabilities, but I am mindful of what was said by DP Roche in State Transit Authority v El-Achi [2025] NSWWCCPD 71 (El-Achi) at [72]:

"That a doctor does not address the ultimate legal question to be decided is not fatal (Guthrie v Spence [2009] NSWCA 369; 28 NSWLR 225 at [194] to [199] and [203]). In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involved an evaluative process."

1. I would firstly observe that the report from A/Prof Ghahreman is to the general practitioner, and the report is not provided in the context of a medicolegal opinion. Secondly, the aggravation of facet arthropathy due to the fall appears to A/Prof Ghahreman to be the most likely cause of Ms Jelassi's complaints. Thirdly, the aggravation of facet arthropathy due to the fall is supported by the opinion of Dr Moloney.
2. Dr Moloney identifies pain referable to the facets of L3/4 and L4/5 on the right side. He does not find any inconsistencies on his examination of Ms Jelassi. His conclusion that degenerative changes at L3/4 and L4/5 have been aggravated and perhaps accelerated by the fall is consistent with the opinion reached by the treating specialist.
3. A/Prof Ghahreman does provide a second report following nerve conduction studies undergone by Ms Jelassi, which were reported as normal, but he does not add anything further to his previous opinion as to the likely cause of Ms Jelassi's lower back complaints.
4. In undertaking an "evaluative process" of the relevant medical evidence (El-Achi), I am of the view that the combination of the findings and opinions of A/Prof Ghahreman and Dr Moloney allows for a conclusion to be reached that Ms Jelassi has continued to suffer the effects of the injury to her lumbar spine during the period when payments are sought to be recovered by the first respondent from the applicant.
5. I prefer the evidence from A/Prof Ghahreman and Dr Moloney over that of Dr Edwards. I agree with the submission made by Mr Doak on behalf of the first respondent that

Dr Edwards does not engage with the issue of whether the facet arthropathy, which is identified by both A/Prof Ghahreman and Dr Moloney, has been aggravated by the fall.

Dr Edwards is aware of the report of A/Prof Ghahreman dated 9 April 2025, but he does not address the opinion expressed by this treating specialist that Ms Jelassi has facet arthropathy at L4/5 and that this condition has potentially been aggravated by the fall. 6. Mr Macken submits that the first respondent provides no reason for the weekly payments of compensation made to Ms Jelassi, and yet it expects the applicant to pay the monies demanded by the first respondent. He points out that there are no Certificates of Capacity in evidence other than a certificate dated 8 July 2025, which is included in the evidence relied upon by Ms Jelassi and is outside of the period in which payments are sought to be recovered by the first respondent. 7. I agree with Mr Doak that Certificates of Capacity are but one piece of evidence which can be relied upon to establish incapacity. 8. Dr Moloney accepts that Ms Jelassi receives a certificate of capacity indicating no capacity for work when he sees her on 22 May 2025. Although the Certificate of Capacity from

Dr Kirlous dated 8 July 2025 is outside of the period in which payments are sought to be recovered by the first respondent, it certifies that Ms Jelassi remains totally unfit for work. There is no evidence before that time that Ms Jelassi had a partial incapacity for work. 9. The summary of the notes from Dr Kirlous which are contained in the report from Dr Edwards only refers on one occasion to a Certificate of Capacity being issued (being on 4 November 2024), but that summary does indicate regular and ongoing complaints of lower back pain by Ms Jelassi. 10. Dr Edwards makes no attempt to engage in consideration of the factors regarding 'suitable employment' in s 32A of the 1987 Act. 11. I consider that there is sufficient evidence from the opinion of Dr Moloney, the Certificate of Capacity which is in evidence (even though it is outside of the period in which payments are sought to be recovered by the first respondent) and the regular attendances by Ms Jelassi in the first half of 2025 upon Dr Kirlous, to support the payment of weekly benefits of compensation on the basis of no current work capacity for the period from the date of the injury to 9 June 2025. 12. Mr Macken submits that the first respondent provides no reason for the payment of medical expenses which have been paid to or on behalf of Ms Jelassi. 13. The list of payments for medical expenses sets out payment for scans, medication, physiotherapy, consultations with doctors, and travel for treatment. These are standard expenses for treatment for a lower back condition, especially given the ongoing problems which have been experienced by Ms Jelassi, and there is no reason why they should not be regarded as reasonably necessary as a result of the injury sustained by Ms Jelassi. 14. The list of payments record 38 separate dates for the provision of physiotherapy services. However, the applicant has provided no expert evidence to argue that these services have been excessive. 15. From my review of the evidence and the reasons I have given, the applicant is liable to reimburse the first respondent in the amount of $43,450.77 for workers compensation payments made to or on behalf of Mounira Jelassi pursuant to s 145 (4) of the 1987 Act, and there will be an order to that effect.