1. The respondent is to pay the applicant pursuant to s 66 of the Workers Compensation Act 1987 $43,312.50 in respect of 24% whole person impairment in relation to the lumbar spine and scarring/TEMSKI for injury sustained on 18 April 2010 in accordance with the Medical Assessment Certificate of Medical Assessor Mohammed Assem dated 28 November 2024.
2. The respondent is to pay the applicant $22,500 for pain and suffering compensation pursuant to s 67 of the Workers Compensation Act 1987.
3. The respondent to pay the applicant's costs as agreed or assessed.

A brief statement is attached setting out the Commission's reasons for the determination.

1. James Tysoe, the applicant, has brought proceedings in the Personal Injury Commission (Commission) against the State of New South Wales (NSW Police Force), the respondent, in which he alleges that he sustained injury to his lumbar spine whilst in the course of his employment on the deemed date of 18 April 2010 when he was pushed onto the road and whilst lying on the road was kicked in his back when an offender resisted arrest. The applicant alleges that he suffered further injury on 11 July 2016 when re-positioning his appointment belt.
2. Based on a date of injury of 18 April 2010 the applicant claims compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act) for 24% whole person impairment (WPI). The applicant also claims compensation pursuant to s 67 of the 1987 Act (repealed) for pain and suffering in the amount of $30,000.
3. The matter was the subject of a preliminary conference before me on 26 September 2024 at which time the parties agreed to the applicant being referred to a Medical Assessor appointed by the Commission for assessment of impairment. The applicant was subsequently examined by Medical Assessor Mohammed Assem on 26 November 2024 with a Medical Assessment Certificate (MAC) subsequently being issued dated

28 November 2024. Medical Assessor Assem assessed and recorded in the MAC a 23% WPI of the lumbar spine, 1% WPI due to scarring with a combined loss of 24% WPI due to injury sustained on 18 April 2010. 4. The parties have agreed the amount of compensation payable for 24% WPI assessed in the MAC at $43,312.50. 5. The only remaining dispute between the parties is in respect to the amount to be paid in respect to pain and suffering pursuant to s 67 of the 1987 Act.

1. The parties agree that the following issue remains in dispute:

(a) the quantum of compensation payable for pain and suffering pursuant to s 67 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. 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.
2. The parties at a preliminary conference agreed to the determination of the matter on the papers without a conciliation conference/arbitration hearing.

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

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

(b) Reply and attached documents, and

(c) MAC of Medical Assessor Mohammed Assem dated 28 November 2024.

1. The parties have submitted the following written submissions:

(a) applicant's submissions dated 7 February 2025;

(b) respondent's submissions dated 20 February 2025, and

(c) applicant's submissions in reply dated 28 February 2025.

1. There is no dispute that the applicant is entitled to pain and suffering compensation pursuant to s 67 of the 1987 Act.
2. Pursuant to s 67(2) pain and suffering compensation is only payable for pain and suffering resulting from impairment. Pain and suffering compensation is not payable for pain and suffering that results from the injury but not from the impairment.
3. Section 67(7) defines pain and suffering as follows:

(a) actual pain, or

(b) distress or anxiety,

suffered or likely to be suffered by the injured worker, whether resulting from the permanent impairment concerned or from any necessary treatment."

1. The parties agree that the maximum amount of compensation potentially payable to the applicant for pain and suffering pursuant to s 67 of the 1987 Act is capped at $50,000. The applicant claims pain and suffering compensation in the amount of $30,000 (being 60% of a most extreme case). The respondent submits that the amount should be no more than $15,000 (30% of a most extreme case).
2. Section 67(3) provides that the maximum amount of pain and suffering compensation is payable only in "a most extreme case". In Government Supply Department v Abbott (1993) 9 NSWCCR 276 the NSW Court of Appeal used quadriplegia as an example of a most extreme case.
3. The amount of pain and suffering compensation payable in any other case other than a most extreme case "shall be reasonably proportionate to that maximum amount having regard to the degree and duration of pain and suffering and the severity of the permanent impairment."[1]
4. The amount of the pain and suffering compensation is not tied to the assessment of permanent impairment or loss.[2]
5. Wright C in Tyler v Marsden Industries [2001] NSWCC 194 (Tyler) at [14] provides the following useful summary of the law in respect to the factors and principles to take into account in determining an appropriate amount under s 67:

"· Pain and suffering awards under s 67, unlike the objective criteria in s 66 awards for physical loss and impairment, must take into consideration the actual individual experiences of the claimant, as to his or her past and future pain and suffering.

· The measure of the extreme case must be compared with the measure of a most extreme case and does not need to make a comparison with the most extreme case.

· The pain and suffering must result from the loss/impairment and not merely the injury (s 67(1A); Scrimshaw v SAR Wood Pty Ltd (1997) 14 NSWCCR 335).

· Pain may be compensated even if the extent of the loss and its effects are not assessable until a later date (Selimovic v Airfoil Registers Pty Ltd ( [1999] NSWCC 29; 1999) 18 NSWCCR 143).

· Pain and suffering is compensable from the date of the compensable injury and not merely from the date on which the loss/impairment is crystallised (Rico v Roads and Traffic Authority (1992) 8 NSWCCR 515; Corporate Ventures Pty Ltd v Borovac (1995) 12 NSWCCR 84; Bohanna & Appleton t/as Anscot Partnership v Bohanna (1996) NSWCCR 724).

· There is no necessary relationship between the impairment/loss and the intensity and duration of the pain and suffering. If an award is excessive upon a review of all the circumstances, an award may be overturned on the basis of falling outside the range of a sound discretionary judgment (Ainsworth Nominees Pty Ltd v Crouch (1995) 11 NSWCCR 640).

· The age of the claimant is relevant. In Regal Paints Pty Ltd v Wasson (1993) 9 NSWCCR 301, the Court of Appeal observed (Priestley JA at 306C) that the younger a person is at the time of injury (loss) the greater is the chance that the worker would get into an extreme case category, but each case has to be looked at on its own merits due to the potential for the same injury to affect different workers differently. The Court of Appeal reiterated in Ainsworth Nominees Pty Ltd v Crouch (Kirby A-CJ at 652F) that age was a relevant consideration because age at injury had implications for the expected duration of any pain and suffering.

· Distress caused by interference with social activities (Department of School Education v Boyd [1996] NSWCA 152; (1996) 13 NSWCCR 289) or by the effects of the compensable injury on a worker's relationships including marriage (Pacific Dunlop Ltd v Krivec (1996) 13 NSWCCR 353) can be relevant.

· Objective factors may include the type of surgical procedures undergone, the nature of the convalescent process and any complications flowing therefrom, as well as the need for medication and difficulty with sleeping (Dubbo Base Hospital v Harvey (1996) 13 NSWCCR 545)."

1. It is submitted on behalf of the applicant that the applicant is relatively young currently being 50 years of age and being 35 years of age at the time of the subject injury. In the applicant's submission based on the Life Expectancy tables calculated by the Australian Bureau of Statistics (ABS), the applicant is expected to live for a further 34 years and the pain and suffering resulting from the impairment will continue to negatively impact on his quality of life.
2. The respondent disagrees with the characterisation of the applicant as "relatively young". In the respondent's submission, given the applicant's age, any pain and suffering that he is experiencing is likely to be experienced over a shorter timeframe which weights against a higher assessment under s 67 of the 1987 Act.
3. The age of the applicant is a relative consideration. Whilst the applicant was not a youth at the time he initially sustained injury on 18 April 2010 he was still a relatively young man at 35 years of age. The applicant has already endured almost 15 years of pain and suffering which arises from the impairments and currently at 50 years of age, whilst being what would be generally considered middle aged, will have to live with the pain and suffering resulting from the impairments for a substantial and not inconsiderable portion of his life yet based on current life expectancies.
4. It is submitted on behalf of the applicant that he should be compensated for his pain and suffering from the date on which the injury was sustained. I accept this submission. It is settled law that pain and suffering is compensable from the date of the compensable injury and not merely from the date on which the loss or impairment is crystallised.[3]
5. The applicant has made other claims for workers compensation for injuries sustained during his employment with the respondent including a claim for psychological injury deemed to have occurred on 29 January 2020 for which he has been compensated for 17% WPI pursuant to s 66 of the 1987 Act and $22,500 for pain and suffering pursuant to s 67 of the 1987 Act.
6. The applicant has also been compensated pursuant to s 66 of the 1987 Act for 10% WPI in respect to injury sustained to his neck and left shoulder on 10 April 2019. The applicant also received $12,000 for pain and suffering pursuant to s 67 of the 1987 Act.
7. The applicant is entitled to compensation for his pain and suffering resulting from the impairment of his lumbar spine and scarring. He is however not entitled to be compensated twice for the same pain and suffering. When there are multiple contributors to the same source of pain and suffering the exercise is to determine what the contribution is from the impairment in question.
8. It is the applicant's evidence that following the subject work incident on 18 April 2010 he attended on his general practitioner (GP) on 29 April 2010 and was placed on restricted duties.[4] I do not accept the applicant's evidence as it is inconsistent with the contemporaneous medical evidence. Following the subject injury to the applicant's lumbar spine on 18 April 2010 the applicant was certified fit for pre-injury duties on 22 April 2010[5] and again on 29 April 2010.[6]
9. It is the applicant's evidence that at the time of sustaining the injury on 18 April 2010 he was in "considerable pain".[7] The applicant does not elaborate as to whether the pain which he suffered was due to the kick to his back or a blow sustained to his head or both. Whilst the applicant may have been in considerable pain at the time, he was certified fit for pre-injury duties on 22 April 2010 which in my view indicates that by that stage his symptoms were not severe. He was again certified fit for pre-injury duties on 29 April 2010.
10. The applicant appears to have sought or received little treatment in the years directly following 29 April 2010.
11. On 22 July 2013 Dr David Maxwell, orthopaedic & spinal surgeon, reported to Dr Jacman Yu that the applicant had been experiencing lower back pain for "about the last 3 months" which seemed to have occurred after he extended his back whilst up a ladder. Dr Maxwell records that the applicant did not feel anything at the time however about an hour later his back started to ache mainly on the left side. Whilst the pain became "quite acute" for a couple of days it did not incapacitate the applicant who was able to continue working however on occasion the pain would radiate down into the applicant's left leg. Dr Maxwell observed that the pain had become "quite chronic" but did not really affect his ability to work.[8]
12. It is the applicant's evidence that in or around 2013, he commenced physiotherapy which temporarily alleviated some of his pain and symptomology but did not provide any long lasting benefits or pain relief. In the applicant's evidence he continued to suffer from dull aching lower back pain which radiated down his left leg. It is the applicant's evidence that on occasion he has experienced flareups in his pain.[9]
13. The applicant again does not appear to have sought or received much in the way of treatment for the injury to his lumbar spine from 2013 to late 2014/early 2015.
14. On 16 February 2015 the applicant attended on Dr Eli Weiner complaining of two months of localised pain lateral to the L4 vertebra. The pain radiated to the left thigh and calf and was worse when sitting.[10]
15. On 29 April 2015 Leo Ho, physiotherapist, with Special Spinal Rehab reported to Dr Yu noting that the applicant had attended on 11 March 2015 after being referred for physical management, opinion and treatment of the applicant's chronic lower back pain and left knee pain after some heavy gardening in September 2014. The applicant rated his continuous lower back pain at 5/10 and reported that sitting for 10 minutes increased his lower back pain. Mr Ho was able to report, that after treatment, the applicant was able to lift up to 15kg, bend repetitively and sit for up to one hour. He was also back to running three times per week for between 30 minutes and 2 hours without any ill effects. However, the applicant still had some intermittent lower back discomfort which was manageable on certain seats. Mr Ho was of the opinion that the applicant was ready to return to full work duties as a plain clothes police officer.[11]
16. In my view the medical evidence supports that the applicant's lumbar spine condition deteriorated significantly in 2016.
17. On 15 June 2016 Dr Diwan, the applicant's treating orthopaedic surgeon, reported to

Dr Weiner that the applicant's lower back symptoms had continued unbated.[12] The applicant was certified with no current capacity for work from 5 August 2016 to 4 September 2016 due to the injury to his lumbar spine.[13] 18. On 9 August 2016 Dr Diwan reported to Dr Yu that the applicant had taken a turn for the worse having been admitted to hospital with a severe exacerbation of pain. The applicant had woken up and was unable to move without pain and had to get ambulance drivers to assist him. He was left with residual numbness though the pain had improved with high doses of morphine and the applicant was taking Panadol, Voltaren and Endone.[14] 19. On 15 August 2016 the applicant underwent surgery to his lumbar spine in the form of an L4/5 microdiscectomy.[15] 20. On 21 September 2016 Dr Diwan reported to Dr Yu that the applicant was five weeks post L4/5 microdiscectomy surgery and that his outcome had been "good". He had significant relief however there was residual stiffness. Dr Diwan suggested that the applicant could return to work starting off on two days per week, five hours per day and then gradually increase depending on his tolerance.[16] 21. In respect to the back injury the applicant was certified with some type of capacity for employment from 26 September 2016 to 7 October 2016 working 5-6 hours per day, two days per week with restrictions,[17] from 8 October 2016 to 21 October 2016 working five hours per day, three days per week,[18] from 22 October 2016 to 21 November 2016 working 5-10 hours per day, four days per week with restrictions[19] and from 22 December 2016 to

20 March 2017 working 10 hours per day, four days per week.[20] 22. In 2018 the applicant's condition again deteriorated. 23. On 17 January 2018 Dr Diwan reported to Dr Yu that the applicant had previously undergone a successful L4/5 microdiscectomy however two weeks prior to the examination the applicant had hyperextended his back at a swimming pool and had since then developed new symptoms which were getting better.[21] However, on 24 January 2018 Dr Diwan reported to Dr Yu that the applicant continued to experience left sided pain.[22] 24. On 26 February 2018 Dr Diwan reported to Dr Yu that the applicant had developed right leg symptoms which caused some cramps. He still had residual left L5 pain and the applicant reported that sitting and standing was also troublesome with left sided pain; it was only when the applicant lay down that he felt better. The applicant was however back at work which included sitting for long periods which was challenging.[23] 25. On 20 February 2019 Dr Diwan reported to Dr Rutee Wijesuriya that the applicant had developed an L5/S1 far lateral left sided herniation the previous year which responded well to oral cortisone. However, over the previous three months his symptoms had worsened.[24] 26. On 17 July 2019 the applicant underwent L4/5 spinal fusion surgery. 27. On 22 August 2019 Dr Diwan's surgery provided a report in respect to return to work planning which recorded that the applicant's healing had progressed well. The applicant was cleared to return to work from 30 August 2019 at a maximum of five hours per day, two days per week on light duties. The days and hours could subsequently be increased.[25] 28. On 30 October 2019 Dr Diwan reported to Dr Wijesuriya that three months post fusion surgery the outcome was "excellent". The applicant was back working 20 hours per week. He did get some left foot tingling and numbness which the doctor thought was a residue of the chronic pain. The doctor recommended that the applicant could start running in due course with the help of a physiotherapist.[26] 29. On 6 May 2020 Dr Diwan reported to Dr Wijesuriya that overall, the applicant was "doing quite well." He was working 24 hours per week. His left L4/5 area did however "cause him on and off trouble." The doctor noted that the applicant started running in January 2020 but had a small trip and fall and he had also been diagnosed with gout.[27] 30. It is the applicant's evidence that the L4/5 fusion procedure caused "very extreme pain"[28] and that the recovery from the surgeries was "very slow and painful". That whilst recovering from the surgeries he needed to use a support frame to move around and participated in numerous rehabilitation programs including physiotherapy and occupational therapy. That it was "extremely difficult" for him to get up or down, to or from a seated or lying position. That he needed to take a lot of time and move very slowly, enduring a lot of pain. That there were times when he would collapse with the pain and instability in his back whilst trying to walk. That he avoided eating and drinking if there was no one around to get it for him and would avoid fluids so that he would not have to get up as much.[29] 31. Whilst I accept that the recoveries from the surgeries, in particular the spinal fusion procedure, would have been painful the applicant appears on the evidence to have had at least initially a good outcome from the discectomy on 15 August 2016 with Dr Diwan reporting on 21 September 2016, some five weeks after the surgery, that the outcome had been "good" with significant relief but residual stiffness and suggesting that the applicant could make a graduated return to work. It is not until 17 January 2018 that Dr Diwan reports a change in the applicant's symptoms following the applicant hyperextending his back. 32. Following the L4/5 spinal fusion surgery on 17 July 2019 the applicant appears to have again initially had a good outcome with Dr Diwan observing on 22 August 2019 that the applicant's healing had progressed well, and the applicant being certified fit to return to work from

30 August 2019 on restricted hours and duties. On 30 October 2019 Dr Diwan reported that the outcome was "excellent" at which time the applicant was back at work 20 hours per week and recommended that the applicant could start running in due course which the applicant did in January 2020 before suffering a small trip and fall and being diagnosed with gout. 33. As previously stated, whilst I accept that the applicant would have suffered from some pain, discomfort and restrictions in his functional capacity whilst recovering from the two surgeries the medical evidence supports that the surgeries were initially successful, that the applicant did not suffer from any significant complications and that his recovery seems to have been uneventful and within the appropriate time frames for the subject procedures. 34. On 10 February 2021 Dr Diwan referred the applicant for a CT scan of his lumbosacral spine due to low back pain following the L4/5 spinal fusion surgery.[30] 35. On 11 February 2021 Dr Diwan reported to Dr Wijesuriya that 18 months post the L4/5 fusion surgery the applicant continued to work modified duties. However, on examination the applicant complained of left sided aches and pain below the fusion which at times radiated to his left leg and the left paravertebral region of the thoracolumbar spine.[31] 36. Dr Mark Jones examined the applicant on 2 March 2021 providing an injury management report to the respondent on 4 March 2021 in which he noted that the applicant continued to experience significant back and leg pain. The applicant reported however that the back injury did not impede his activities.[32] 37. On 26 April 2021 Dr Diwan reported to Dr Wijesuriya that two years post fusion surgery the applicant complained of left leg pain on and off. The applicant was however back at work. The doctor was of the opinion that the applicant may have some residual nerve root irritation.[33] 38. On 6 December 2021 Dr Diwan reported to Dr Wijesuriya that the applicant had responded significantly to a cortisone taper. On examination there was reduced muscle spasm and he had a reasonable range of movement. Dr Diwan thought that the applicant had what he referred to as idiopathic type back pain incidentally associated with the L4/5 fusion.[34] 39. On 21 December 2021 the applicant was again examined by Dr Jones who provided an injury management consultant report to the respondent dated 22 December 2021. The applicant reported current lower left lumbar spine ache and nerve pain into the left buttock and leg, increased ache whilst sitting, that his standing tolerance had improved to two hours, a driving tolerance of up to 45 minutes with pain in his left shoulder when his arm is outstretched whilst driving, that he could mow lawns, climb ladders and vacuum. Sleep was uncomfortable due to his neck and shoulder conditions.[35] 40. Dr Jones recorded that the applicant had been certified unfit for work for the past three weeks due to psychological symptoms. Prior to that he was performing selected duties at pre-injury hours. The applicant stated that he was coping but did suffer occasional flare ups of neck and shoulder pain.[36] 41. On examination Dr Jones observed the active range of movement of the lumbar spine to be pain free. There was no local back tenderness.[37] 42. Dr Peter Giblin, orthopaedic surgeon, who provided a forensic medical report to the applicant dated 8 March 2022 records that the applicant initially thought that his back was badly bruised following the subject work incident however it never completely got better and he had niggling symptoms on and off for a while before his back condition slowly deteriorated to the extent that one morning he had difficulty getting out of bed. The applicant came to microdiscectomy surgery at L4/5 in 2006 following which, after 12 months he was able to return to normal work duties. However, the symptoms returned and in July 2019 the applicant underwent further surgery in the form of an L4/5 fusion.[38] 43. Dr Giblin records that the applicant complained of a loss of physical stamina as a result of the symptoms in his neck, left shoulder as well as his low back. Dr Giblin noted that since the spinal fusion the applicant had been unable to continue running and had been very restricted in terms of his fishing and gardening. Whilst he still did his lawns and gardens, he did them piecemeal and used a ride on mower.[39] 44. In the opinion of Dr Giblin the applicant's prognosis was guarded observing that the applicant's injuries would only deteriorate and would be subject to aggravation.[40] 45. On 8 July 2022 Dr Diwan reported to Dr Yu that the applicant had a "problem", which was presumably pain, which was on the left side below the incision from the spinal fusion surgery going down to his buttock and sometimes to the ankle.[41] 46. A/Prof Courtenay, orthopaedic surgeon, provided a forensic report to the respondent dated

6 October 2022 after conducting an examination of the applicant on 13 September 2022 recording that the applicant was not working and had last performed work duties for the respondent on 22 November 2021. The doctor records that the applicant reported that his back was not good and that he still had trouble doing strenuous activities as well as some problems down the lateral side of his left leg to the ankle which had persisted and was worse with a lot of standing.[42] 47. A/Prof Courtenay recorded that the applicant was not able to do a great deal in the garden. That the applicant found cleaning to be an issue. He could put some dishes away, but he could not do much above the horizontal (presumably due to his shoulder and possibly his neck injury rather than his back injury). He could do some limited cleaning. Making a bed was a problem. Unfortunately, A/Prof Courtenay records little about which injuries were causing the limitations.[43] 48. A/Prof Courtenay did not recommend any further treatment for the back injury at that stage. The applicant took the occasional Nurofen when required. 49. A/Prof Courtenay records that the applicant had difficulty with sleeping generally and could not sleep on his left side (presumably due to the left shoulder injury rather than the back injury). The doctor observed that the applicant had difficulty standing for prolonged periods which appeared to be attributed to the neck injury. The doctor noted that the applicant had been a keen fisherman but was unable to do deep sea fishing due to his left shoulder injury. 50. Ignoring the applicant's mental health issues, from an orthopaedic point of view A/Prof Courtenay believed that any job where the applicant was able to stand and sit and move around and did essentially desk top work, investigative work, or training would be appropriate.[44] 51. On 26 November 2024 the applicant was examined by Medical Assessor Assem. At the time of the examination the applicant reported persistent lower back pain rated as 3/10 at rest, which increases with activity or prolonged positions, a constant feeling of muscle tension in the paraspinal region, particularly in the muscles along the side of his spine, pain that radiates to both anterior thighs and which travels through the left buttock and along the outer aspect of the left leg extending to the left ankle as well as numbness on the lateral aspect of his right lower leg. The applicant estimated a sitting tolerance of 10-30 minutes before his pain intensifies. The applicant reported that prolonged standing leads to increasing discomfort, requiring breaks after 10-30 minutes. He can walk 400-500m before needing to rest due to escalating pain. 52. Medical Assessor Assem records that since the injury the applicant has had difficulty performing household chores, including gardening, vacuuming, and heavy lifting, as these activities frequently trigger back spasms or pain exacerbations. 53. It is the applicant's evidence that he has lost the career that he loved and wished to remain in and that he misses the comradery and social aspect of attending work as well as the purpose.[45] 54. In the respondent's submission despite his physical issues and restrictions the applicant did not cease performing duties with the respondent for over 11 years after sustaining injury on 18 April 2010 and when he did so cease, it was because of an unrelated primary psychological injury. Further in the respondent's submission despite the applicant's lumbar spine injury on 18 April 2010, he did not become 'deskbound' until suffering injuries to his cervical spine and left shoulder on 10 April 2019. In the respondent's submission there is no evidence that the applicant experienced any incapacity for his duties because of his lumbar spine injury on 18 April 2010 until 2016. 55. In my view the evidence supports that following injury on 18 April 2010 the applicant was certified fit for his pre-injury duties on 22 April 2010 and again on 29 April 2010. It appears that the applicant may have suffered a period of incapacity, which may have only lead to him being placed on restricted duties rather than being off work, in late 2014/early 2015 with Leo Ho, physiotherapist, noting in his report 29 April 2015 that the applicant was ready to return to full work duties as a plain clothes police officer after suffering an aggravation whilst doing some heavy gardening in September 2014. However, there is little information as to any period of incapacity and as to whether the applicant was off work at any time. 56. The applicant was certified with no current capacity for work due to the injury to his lumbar spine on 5 August 2016. On 15 August 2016 the applicant underwent the L4/5 microdiscectomy procedure following which he was certified with a capacity to perform some type of work with restrictions at reduced hours from 26 September 2016. The applicant did return to work with the respondent. 57. On 17 July 2019 the applicant underwent the L4/5 spinal fusion surgery. It appears from

Dr Diwan's report of 22 August 2019 that the applicant was cleared to return to work from

30 August 2019 on restricted hours and duties. By 30 October 2019 the applicant was working 20 hours per week and by 6 May 2020 24 hours per week. Dr Jones in his report dated 22 December 2021 records that the applicant had gone off work three weeks prior due to psychological symptoms. A/Prof Courtenay noted in his report dated 6 October 2022 that the applicant was not working and had not worked since 22 November 2021 which is roughly consistent with the history recorded by Dr Jones as to when the applicant ceased duties due to psychological symptoms. In the opinion of A/Prof Courtenay the applicant was fit to perform desk-based work. 58. I accept the respondent's submission that the evidence supports that the applicant did not experience incapacity until August 2016 due to the injury to his lumbar spine, with the qualification that it does appear that the applicant did suffer a period of incapacity, which was possibly only partial in nature, in late 2014/early 2015 following an aggravation which occurred at home. 59. The evidence supports that the applicant returned to work following the L4/5 microdiscectomy. The applicant came to spinal fusion surgery on 17 July 2019 but again returned to work following the surgery before it would seem ceasing duties on about

22 November 2021 due to mental health issues. 60. Whilst the lumbar spine impairment has had an impact on his capacity to perform his work duties he appears to have been able to complete his pre-injury duties up until August of 2016 except potentially for an unspecified period in late 2014/early 2015. The applicant has been able to return to work following both surgical procedures and it would appear only ceased duties due to mental health issues. 61. It is the applicant's evidence that what he misses about his work with the respondent is the sense of purpose, the camaraderie and talking to his colleagues and the general public. There is no evidence that the applicant suffered any such losses whilst performing the alternate duties prior to ceasing those duties due to his psychological injury. 62. In my view the evidence supports that initially in the years following the injury on

18 October 2010 the applicant's symptoms were relatively mild and that he was able to function reasonably well. He was able to continue in his pre-injury duties and appears to have sought and received minimal treatment 63. The evidence supports the respondent's submission that the applicant had very limited treatment in relation to his lumbar spine until 2016. The applicant has however undergone two surgical procedures being the L4/5 microdiscectomy on 15 August 2016 and the L4/5 spinal fusion on 17 July 2019. The L4/5 spinal surgery in particular is a significant operative procedure. 64. I accept that the impairment does have a negative impact on the applicant's functional capacity impacting his tolerances in respect to such basic activities as sitting, standing, bending and lifting. 65. In my view the evidence supports, and I accept, that the applicant's pain and functional restrictions from the impairment has a negative impact upon such aspects of his life as gardening, socialising, activities with his family and his sporting and recreational activities. 66. It is the applicant's evidence that he experiences increased back pain when seated for too long, and that he needs to get up and stretch or walk around. This is consistent with the medical evidence and the applicant's complaints to the doctors. It is the applicant's evidence that this affects activities such as watching TV, travelling in a car, going out for dinner. It is the applicant's evidence that as a result he does not go out often as he used to and doesn't enjoy it as much when he does which he finds upsetting.[46] It is the applicant's evidence that he needs to take a break during the trip to visit family members and has to take a long break before returning home. It is the applicant's evidence that he finds it "deeply upsetting" that he now struggles to enjoy visiting his family to back pain.[47] In my view it is logical that such activities would be affected by a reduced sitting tolerance, and I accept the applicant's evidence in this respect. I note however that the evidence all supports that these activities are also affected by the other injuries which the applicant has sustained. 67. It is the applicant's evidence that his back pain also affects his ability to go shopping as he struggles to walk for more than an hour, to lift and play with his daughter and participate in her sporting, school and social activities. It is the applicant's evidence that his back injury has adversely affected his relationship with his daughter and that he is upset that he has missed out on experiences with her.[48] The applicant does not elaborate on the nature of the impact on his relationship with his daughter which has been caused. I also accept that the impairment negatively affects the applicant's ability to fully participate in these activities and negatively impacts the pleasure which he derives from these activities given the applicant's functional restrictions particularly in respect to sitting, standing, lifting and walking. I again note however that the evidence all supports that these activities are also affected by the other injuries which the applicant has sustained. 68. It is the applicant's evidence that his back condition has affected his ability to perform housework and yard work. That his back will start aching shortly after commencing housework and he will need to lie down. That he was a keen gardener and that it was an activity that he derived pleasure from, but which now sees more like a chore. Whilst the applicant has purchased electric tools to assist with work in his yard, he still has trouble bending and lifting. I note that these activities are also affected by the applicant's neck and left shoulder conditions which have been the subject of a separate workers compensation claim. 69. It is the applicant's evidence that he no longer engages in the exercise and sporting activities that he used to.[49] I also accept that the applicant's back impairment would have negatively impacted on his ability undertake the sporting activities that he once enjoyed such as running and fishing. However, the applicant's neck and left shoulder conditions have also had a negative impact and in particular I note that A/Prof Courtenay records a history that the applicant was unable to go deep sea fishing due to his left shoulder injury. 70. It is the applicant's evidence that his relationship with his wife has been adversely affected which I whilst I accept that his reduce ability to engage in activities and to perform domestic tasks may well have impacted upon the relationship the applicant gives little evidence as to the nature, cause and severity of the impact and how that has affected him. 71. It is also the applicant's evidence that his sleep has been impacted by the impairment however I again note that the evidence supports that the applicant's neck and left shoulder injury negatively impact his sleep with Dr Jones recording in his report dated

22 December 2021 that sleep was uncomfortable due to his neck and shoulder conditions and A/Prof Courtenay recording that the applicant had difficulty sleeping generally and could not sleep on his left side, which I presume was due to the left shoulder injury rather than the back impairment. 72. The evidence supports and I accept that the applicant has suffered from and will continue to suffer from exacerbations from time to time. 73. The medical evidence supports, and I accept that the applicant has ongoing pain and discomfort in his lower back which radiates into his buttocks and at times into his legs. 74. It is also the applicant's evidence that he finds the scarring embarrassing and annoying. 75. For the above reasons, having considered the evidence and submissions in respect to the subject impairments, having regard to a reasonable proportion of the maximum amount of pain and suffering compensation payable in respect to a most extreme case I find that the applicant is entitled to $22,500 (45% of the maximum) for pain and suffering compensation pursuant to s 67 of the 1987 Act.

[2] See: Jones Bros Bus Co Pty Ltd v Baker (1992) 8 NSWCCR 30; Staker v North Broken Hill Pty Ltd [1992] NSWCC 18; (1992) 8 NSWCCR 332; O'Neill v Star City Pty Ltd [2006] NSWWCCPD 259.

[3] Rico Pty Ltd v Road Traffic Authority (1992) 8 NSWCCR 515; Corporate Ventures Pty Ltd v Borovac (1995) 12 NSWCCR 84; Bohanna & Appleton v Bohanna (1996) 13 NSWCCR 724.