Aram v Unisson Disability Support
[2025] NSWPIC 455
•3 September 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Aram v Unisson Disability Support [2025] NSWPIC 455 |
| APPLICANT: | Ellie Aram |
| RESPONDENT: | Unisson Disability Support |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 3 September 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for injury and surgical treatment to the neck said to arise out of injury simpliciter on 26 April 2023; respondent disputed the applicant sustained injury and maintained applicant not credible given subsequent multiple versions of injury all inconsistent with hospital presentation immediately after accident; consideration of Kooragang Cement Pty Ltd v Bates, Kumar v Royal Comfort Bedding Pty Ltd, Nguyen v Cosmopolitan Homes, Onassis v Vergottis, and Watson v Foxman; inconsistencies in evidence both factual and medical; Held – applicant failed to discharge onus; award respondent in respect of the claim of injury to the neck and claim for surgery. |
| DETERMINATIONS MADE: | The Commission determines: 1. Award for the respondent in respect of the claim of injury to the cervical spine (neck). A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
Ellie Aram (the applicant) claims on 26 April 2023, she fell at work, struck her head, lost consciousness, injured her neck and now requires surgery.[1] Unisson Disability Support (the respondent) and its insurer denied it was liable for any injury to the neck.
[1] Right C5/6 and C6/7 foraminotomy and ancillary expenses as recommended by A/Prof Ali Ghahreman in his fees estimate of 29 April 2025.
An Application to Resolve a Dispute (ARD) was filed in the Personal Injury Commission (Commission). Injury was pleaded as (unedited):
“The applicant sustained a frank injury to her right foot/ankle, lower back and neck at work on 26 April 2023. Further, or in the alternative, the neck and the lower back are consequential. Further or in the alternative, aggravation, acceleration, exacerbation or a deterioration of a disease condition in the spine is alleged. The applicant has sustained consequential condition to her right hip.”
The matter underwent the usual case management pathway ultimately proceeding to Arbitration. Mr Tanner of counsel instructed by Mr Covic represented the applicant.
Mr Barnes instructed by Ms Bentley represented the respondent. Ms Allen and Ms Visser were the insurer representatives. At arbitration the claim relating to a “consequential neck condition” was abandoned with the submissions being confined to injury simpliciter. Attempts to conciliate the matter were unsuccessful.
Parties agreed the issue in dispute is whether the applicant suffered injury to the neck as defined by the Workers Compensation Act 1987 (the 1987 Act) on 26 April 2023 and if so, whether the surgery proposed is reasonably necessary.
No oral evidence was called. The documents considered in decision making included the ARD and its annexures, the Reply and its annexures and Applications to Lodge Additional Documents filed by the applicant on 12 June 2025 and 15 July 2025.
Evidence
In her statement dated 9 September 2024[2] the applicant records she slipped on a ramp covered with moss and mould on 26 April 2023, struck her head (injuring her neck) and lost consciousness for an unspecified period which resulted in confusion thereafter. She was transported to Blacktown Hospital where she was treated for a fractured right ankle. She recalls having a headache, back and neck ache as well. She reported neck pain to her general practitioner (GP) on 27 June 2023 ultimately being referred to Dr Singh, spinal surgeon. MRI of the cervical spine was undertaken on 4 September 2023. A CT scan was undertaken on 3 June 2024. She has severe neck pain and pain in the right arm.
[2] Folio 1-6 ARD.
In a supplementary statement dated 29 May 2025[3] and specifically in response to the insurer’s denial of injury, the applicant again repeats she hurt her neck on 26 April 2023 when she “hit my head in the fall” and lost consciousness. Symptoms were reported to her doctor at a long consultation on 27 June 2023. Her initial focus was the ankle because of the fracture. The presentation at the hospital was “not a good experience.” She privately funded injections into the neck which were not helpful and now desires surgical intervention on account of unremitting pain.
[3] Folio 7-8 ARD.
NSW Ambulance records confirm the applicant was transported. The quality of the document is poor.[4] Injury to the right ankle is circled, no cervical collar was applied and the airways were clear.
[4] Folio 187 ARD.
Emergency admission notes of Blacktown Hospital on 26 April 2023[5] recorded (unedited):
“54 year old female, from the street
Patient was BIBA to the ED due to twisted ankle
Patient stated that she tripped over while walking on a ramp and her right ankle got twisted inadvertdly
Patient is in pain, right ankle is swollen and could not weight bear on the right foot.
No headstrike, no LOC, no drowsiness, no N/V, no headache, no blurred vision. No dizziness.” (my emphasis)
[5] Folio 190 ARD.
Further entries on the same day but by a different attending officer indicate (unedited):
“in pain, oriented, GCS 15
Chest clear
Spine no tenderness or paraspinal tenderness.
Right lower limb; swelling around the right ankle, warm to touch, limited ROM of the right ankle, neurovascular normal.”
Emergency admission notes of the Blacktown Hospital on 27 April 2023 records the right leg injury and specifically “denies headstrike/LOC ( loss of consciousness).”[6] (my emphasis)
[6] Folio 164 ARD.
Whilst an inpatient, Registered Nurse Diana Pennisi recorded (unedited):
“Pt alert and orientated
GCS 15…
Pt resting in bed with right leg elevated and regular ice packs applied.”
Progress notes by Registered Nurse Anuradha Pilotto recorded (unedited):[7]
[7] Folio 169 ARD.
“Pt arrived to PDU from A21 ward @1246hrs
Was admitted with right ankle fracture post fall
Pt nursed under standard precautions
A: patent, maintaining own, speaking in full sentences
B: spontaneous, nil respiratory distress
C: warm to touch, well perfused
D: GCS 15. Alert and orientated. Ambulant with crutches
E: Afebrile, Nil IVC
F: eating and drinking as tolerating. BNO.
G: nil history of DM
Others
Orientated to PDU, comfortable in reclining chair
d/c letters and outside script given
went home with taxi
left pdu ward @1341hrs.”
Blacktown Hospital discharge summary dated 28 April 2023 recorded the history of the slip and fall with inversion injury to the right ankle and “nil other injuries, denies open wounds, denies numbness or tingling.”[8] (my emphasis).
[8] Folio 80 ARD.
Dr Yalizis, orthopedic surgeon treated the applicant for ankle fracture and performed an open reduction and internal fixation. His serial reports between 11 May 2023 and
3 April 2024[9] record a number of lower limb complaints but are silent on complaints to the cervical spine.[9] Folios 82-92 ARD.
The certificate of capacity issued on 13 June 2023[10] recorded the following injuries arising from an incident on 26 April 2023 (unedited):
“1- Fracture of calcaneus.
2 - Right ankle fracture – right open reduction and internal fixation.
3- Complex regional pain syndrome.
4- Exacerbation of anxiety and depression due to chronic pain.
5- Right hip pain.
6- Lower back pain with radiculopathy.”
[10] Folio 132 ARD.
In a certificate of capacity that is undated[11] (certifying a period of incapacity between 22 November 2023 to 6 December 2023) the above diagnoses are repeated but lower back pain and neck pain with radiculopathy are recorded along with adjustment disorder with depressive mood.
[11] Folio 137 ARD.
Clinical notes of the First Care Medical Centre Cranebrook confirm the applicant became a patient of that practice on 13 June 2023. Her first consultation resulted in a certificate of capacity being issued with injury recorded as described above. The second consultation was on 27 June 2023 which was recorded as a long consultation where neck and lower back pain were documented.[12] Presentations on 30 August 2023, 13 September 2023,
21 September 2023, 10 October 2023 refer to back, hip and leg pain but there is no complaint of neck pain.[12] Folio 209.
The notes of Nurture Care Physiotherapy record that at first consultation the applicant i “reports head strike and passing out – reports not sure what happened - slipped on a disability ramp at work.” Injuries recorded were fracture of the right calcaneus, CRPS, right hip pain and lower back pain with radiculopathy.[13] Subsequent consultations reported pain in the back and hip worsening with use of crutches.[14] Neck pain appears to have first been recorded at consultation on 20 October 2023.[15]
[13] Folio 11 – ALAD filed by Applicant on 12 June 2025.
[14] Folio 18 – ALAD filed by Applicant on 12 June 2025.
[15] Folio 130 – ALAD filed by Applicant on 12 June 2025.
Dr Shafaei, GP in his letter of referral to Dr Singh on 27 June 2023[16] requested assessment of neck, lower back pain, right arm pain, and weakness. He documented the history of a fall at work on 26 April 2023 recording the following injuries:
“fracture of the right calcaneus, right ankle fracture – right open reduction and internal fixation, complex regional pain syndrome and exacerbation of anxiety and depression due to chronic pain burning sensation on the right foot and toe discolored skin, swollen and tender.”
[16] Folio 94 ARD.
Dr Singh assessed the applicant on 19 September 2023.[17] No reference to neck symptoms is recorded, the assessment focused on back pain due to an altered gait pattern arising from the ankle fracture.
[17] Folio 95 ARD.
Dr Ghahreman neurosurgeon, reported on 23 April 2024[18] and noted complaints of back pain and lower limb pain. As part of the management plan he recorded:
“she also complains of brain fog and lack of concentration since her head injury that happened at the time of her fall (associated with LOC) and I have requested MRI brain. I have also supplemented her investigations with a bone scan with SPECT of the cervical and lumbar spine. She cannot work in the meantime as she has numbness of her foot and has not had sufficient investigations into her head injury.”
[18] Folio 100 ARD.
In his report dated 3 June 2024 he noted the fall and reported[19] (unedited):
“she had lower back pain after her surgery when she started to weight bear. Also she noticed neck pain when she was sitting after her surgery…
She had never reported any pain attributed to her spine (cervical or lumbar) prior to her work injury. As such the symptoms are a result of her work related injury. Any treatment offered for her cervical and lumbar spine will be substantially contributed to by her work related injury.”
[19] Folio 101 ARD.
Dr Khong neurosurgeon (qualified) at consultation on 17 September 2024 was informed by the applicant she suffered neck injury when “she fell backwards onto her back and losing consciousness.”[20] On this history, he concluded the fall caused an exacerbation of degenerative changes in the neck. In his further report on 28 May 2025[21] similar views are expressed although expanded with a conclusion that:
“she only developed pain after her fall, as this caused a severe exacerbation of previously asymptomatic degenerative changes. She would not have developed neck or arm pain if she had not fallen at work.”[22]
[20] Folio 40 ARD.
[21] Folio 44 ARD.
[22] Folio 47 ARD.
Dr Gehr, orthopedic surgeon (qualified) at consultation on 4 October 2024 was told “the cervical spine pain started a few weeks after the ankle fracture.”[23] However under summary and conclusion in his report he states “a few days after the injury she developed cervical spine pain with a right arm component.”[24] He concluded the cervical spine was injured on
26 April 2023 (although does not explain how he came to this conclusion given his report of delayed onset of pain). He did not consider the neck condition was consequential to the right ankle.[25] Prognosis was considered guarded.[23] Folio 67 ARD.
[24] Folio 70 ARD.
[25] Folio 72 ARD.
In his supplementary report dated 12 July 2025[26] as regards causation he stated (unedited):
“she told me she developed cervical spine pain with a right arm component a few days after the injury. I am not surprised by this. The mechanism of injury with a slip and a fall whilst walking up a ramp involves sufficient forces to sustain a significant right ankle fracture would also account for an injury to her neck. Whatever underlying changes she had on imaging of her neck may well have remained asymptomatic for another 5 or 10 years, or even indefinitely if it had not been for subject accident.”
[26] Folio 1-4 – ALAD filed by Applicant on 12 July 2025.
Dr Miniter, the respondent’s qualified orthopedic surgeon recorded that the back and neck pain were remote from the original injury but considered the ankle injury was genuine. He concluded the fall was “not causative of the cervical spine symptoms.”[27] (I note the applicant was not accompanied by an interpreter to this appointment, but also note that an interpreter was not present at her own independent assessments.)
[27] Folio 4 – Reply.
Dr Davies, neurosurgeon was qualified by the respondent and reported on 31 October 2024. An interpreter was present at this assessment. As regards the neck he recorded the following history:
“Ms Aram reports ongoing low back pain following the injury in April 2023. She was using crutches for several months following surgery to her ankle and said she developed pain in the neck, in the absence of any specific injury. There was no improvement after she stopped using crutches and was able to walk unaided…[28]
A history of the injury, as described by Ms Aram, is detailed in the body of the report. She had a slip and fall incident on 26 April 2023, fracturing her right ankle. She also developed back pain following the fall. Her neck pain developed in late June (based on the general practitioner’s notes). Ms Aram told me that it developed after she started using crutches following her ankle injury. It has worsened over time, even though she no longer needs to use crutches.…[29]
Ms Aram did not sustain an injury to her neck on 26 April 2023. She told me that her neck pain developed after she had been discharged from hospital following surgery on her ankle and was using crutches for some time. I cannot relate the neck symptoms to the use of crutches….
I do not believe Ms Aram has sustained a consequential condition in the neck that was caused or materially contributed to by the incident on 26 April 2023. There was no neck pain following the initial injury. The use of crutches would not cause a neck injury…[30]
I disagree with Dr Khong’s opinion regarding her neck. The history is of the onset of neck pain about two months after the subject injury and not immediately following the injury.
Dr Gehr refers to neck pain starting a few weeks after the ankle fracture. There is no ongoing causal link from the injury to the onset of that neck pain. There is no mention of any neck pain initially following the injury. I note that Dr Gehr was of the opinion that there was no causal link between the ankle injury and her neck condition.”[31][28] Folio 8 – Reply.
[29] Folio 6 – Reply.
[30] Folio 7 – Reply.
[31] Folio 13 – Reply.
Submissions
Counsel for the applicant submitted:
(a) the applicant sustained a genuine injury. The pathology is clear on investigations. The need for surgery clearly arises out of the frank injury on 26 April 2023;
(b) the applicant has consistently reported to her GP’s that she struck her head leading to a loss consciousness. Such trauma clearly precipitated symptoms in the neck and there is no other competing explanation for her current neck complaints, no alternate mechanism has been described;
(c) there may have been a delay in reporting her neck symptoms to her GP and this is because the focus was on her significant ankle trauma;
(d) the respondent’s qualified evidence should carry no weight. Both Dr Miniter and Dr Davies failed to take a history of head strike and loss of consciousness which clearly accounts for why they could not reconcile the neck injury to the initial trauma. Both specialists have failed to engage in the mechanism of the injury and that such mechanism was sufficient to have caused aggravation to the
well established pre-existing degenerative change in the neck, and(e) there is no dispute that surgery is reasonably necessary to address the current symptomatology and the applicant has established “injury.”
Counsel for the respondent submitted:
(a) the applicant’s claims in relation to head strike and loss of consciousness conflict with those recorded immediately after the injury at the Blacktown Hospital where on multiple occasions it was recorded there was no head strike, no loss of consciousness, no headache and no other injuries apart from the ankle;
(b) the applicant’s qualified evidence is based on speculation or unsubstantiated assumptions thereby rendering it of little probative value, greater weight should be afforded to the contemporaneous hospital notes;
(c) the onus is on the applicant to establish injury. She has nominated various accounts of injury which are inconsistent, embellished and unsupported and contradicted by those attending on her at the hospital on the day of injury. For that reason, the applicant has not established on the balance of probabilities that she sustained an injury to the neck as claimed on 26 April 2023 and so there must be an award for the respondent;
(d) for abundant caution, whilst it is noted that the claims in relation to consequential condition of the neck has been abandoned, there is no medical evidence to support such contention, and
(e) the applicant is not a credible witness.
In reply, counsel for the applicant submitted:
(a) the ambulance report is illegible and so does not assist or carry great evidentiary weight, and
(b) whilst no loss of consciousness or head strike is recorded by the hospital, this cannot be relied upon as it is unclear in what context those records have been made. The evidence must be assessed globally and with a commonsense approach. In this case there is no other cause for the neck problem established and it is commonsense that underlying pathology has been aggravated in the manner claimed by the applicant.
APPLICATION OF THE LAW, FINDINGS AND REASONS
The law relevant to this application is found in the 1987 Act.
Specifically, s 4 of the 1987 Act states that injury means personal injury arising out of or in the course of employment. Further s 9A of the 1987 Act requires employment to also be the substantial contributing factor for compensation to be payable (except in cases of disease injury) where it must be established that employment is the main contributing factor.
To establish injury, the evidence must demonstrate sudden or identifiable[32] (Kennedy) pathological change[33] (Castro). The word ‘injury’ refers to both the event and the pathology arising from it[34] (Lyons). Further, the issue of causation must be determined based on the facts in each case and the application of the commonsense evaluation of the causal chain (Kooragang).[35]
[32] see Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45 and Military Rehabilitation and Compensation Commission v May [2016] HCA 19.
[33] Castro v State Transit Authority (NSW) [2000] NSWCC 12; 19NSWCCR 496.
[34] Lyons v Master Builders Association of NSW Pty Ltd (2003) 25NSWCCR 442 at [429].
[35] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR [463].
Onus of proof
The onus of establishing injury falls on the applicant and the standard of proof is on the balance of probabilities. On this note, it is not necessary that I be satisfied to a degree of certainty but, by the same token, it will not be sufficient if I be merely satisfied that it is possible that the injuries were suffered in the manner alleged.
When making findings, the Court of Appeal in the matter of Nguyen[36] has identified that
a tribunal of fact must be actually persuaded of the occurrence or existence of the fact before it can be found, summarising the position as follows:“(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found, and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[36] Nguyen v Cosmopolitan Homes 2008 NSWCA 246.
The weight of contemporaneous evidence and reliability of memory
In circumstances where there is a conflict between the contemporaneous evidence and recall of events the following is instructive:
“(i) Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.[37] (Onassis)
(ii) ...human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.”[38]
[37] Onassis v Vergottis [1968] 2 Lloyds Rep 403 at 431.
[38] Watson v Foxman (1995) 49 NSWLR 315 at 319.
Further when making findings of fact in relation to the credibility I have assessed:
(a) the consistency of the applicant’s evidence with what is agreed, or clearly shown by other evidence to have occurred, and
(b) the internal consistency of the applicant’s evidence throughout the course of the litigation.
FINDINGS AND REASONS
The applicant’s position is she struck her head and suffered a loss of consciousness. The fall and head strike were sufficient to have caused injury now requiring surgery.
The respondent’s case is that the head strike never occurred and the applicant did not sustain an injury to her neck as claimed.
Having considered the documents and submissions before me, I find the applicant’s evidence unconvincing and unreliable as regards causation. This is because:
(a) I am skeptical about the veracity of her belated statements, which attempt to detail the precise mechanism of injury on a background of claims of “confusion”;
(b) I note at least five different versions of injury, relevantly:
(i)the applicant’s statements of head strike, loss of consciousness and immediate neck injury;
(ii)Dr Gehr’s history that neck pain started a few weeks after the ankle fracture, but then “a few days after the injury she developed cervical spine pain with right arm symptoms.” His report does not refer to head strike rather postulates the slip and fall involved sufficient force to account for neck symptoms (a claim not advanced by the applicant);
(iii)Dr Ghahreman, whilst initially recording a head injury with loss of consciousness recorded that “she had lower back pain after her surgery when she stared to weight bear. Also she noticed neck pain when she was sitting after her surgery;”
(iv)Dr Davies with the assistance of an interpreter obtained history the neck symptoms occurred several months after the ankle injury and as a result of using the crutches, and
(v)only hours after the injury, the applicant informed those attending to her at Blacktown Hospital she did not strike her head and lose consciousness or sustain any other injury apart from that to her ankle. The Glasgow Coma Score at the time of emergency triage and admission was recorded to be 15, (full consciousness);
(c) additionally:
(i)the initial certificate of capacity did not refer to neck injury, and
(ii)symptoms of neck complaint were not documented until
27 June 2023;(d) applicant’s counsel emphasised the uncertainty of the context in which the hospital notes were generated, questioned their accuracy and cautioned on overreliance. I acknowledge authorities indicate care should be taken not to place too much weight on the clinical notes of treating doctors, given their primary concern is with treatment.[39] I also acknowledge that the absence of contemporaneous evidence is not determinative on the issue of causation where there is other evidence,[40] however this is not relevant where credibility is an issue. I find that the hospital notes are thorough and the applicant was assessed by a number of personnel all who took a consistent record of “no headstrike” or “loss of consciousness” and no other injury apart from the ankle fracture, all being recorded within a few hours of the fall. Further, I note that the Glasgow Coma score was normal. The records show the hospital staff were thorough in their assessments. Given the notes were generated within only a few hours of the fall and are consistent throughout (despite a number of different personnel making entries), I have no reason to doubt the accuracy. I prefer this evidence because it was taken only hours after injury from the applicant who affirmatively reported on a number of occasions that she did not suffer head strike, experience loss of consciousness and was not impaired given the Glasgow coma scale testing score of 15. It follows, that the causation theory relied upon by Dr Khong and Dr Gehr and to a certain extent Dr Ghahreman are based on an inaccurate history, likely to have been subconsciously generated given the lapse of time. I find their opinions have limited probative value, and
(e) I note English is not the applicant’s first language, and whilst this was not a ground relied upon by the applicant in submissions, I raise this as language barriers are an essential element in the assessment of credibility. I note her qualified specialists did not have benefit of an interpreter, however the insurer’s qualified specialist, Dr Davis did. There is nothing in the hospital notes which would lead me to find there was any confusion or difficulties when relaying the effects of her injury to hospital staff or paramedics. Further, I cannot ignore that the applicant was engaged in the work of a disability support officer which requires a base line level of comprehension, clearly evident from her past representations.
[39] Mastronardi v State of New South Wales [2009] NSWCA 270.
[40] Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [52].
The respondent emphasised the applicant was not a credible witness. I agree. I consider the variations in the history of injury during the progress of the claim likely due to subconscious construction/reconstruction of events due to the passage of time and as indicated above are not due to a language barrier. I have found the applicant’s representations on causation to be inconsistent and misaligned with the contemporaneous hospital records which I prefer (Onassis).
The applicant carries the onus of establishing on the balance of probabilities that she sustained injury to her neck on 26 April 2023. The content of the standard of proof has been the subject of much judicial discussion and consideration but, for present purposes, it is sufficient to say I must be satisfied to a sense of actual persuasion or affirmative satisfaction that such claims have been made out (Nguyen).[41]
[41] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
Given the conflict between the contemporaneous medical evidence, the applicant’s statement evidence and her subsequent representations to various health professionals, I am not actually persuaded nor affirmatively satisfied she sustained injury in the manner claimed. Given this, I find the applicant has not discharged her onus with regards to causation/injury. I find in favor of the respondent. Assessment of treatment needs is therefore unnecessary.
SUMMARY
For the reasons above, I have made the order set out on page 1 of this Certificate of Determination.
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