Cager v Smart Traveller Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Cager v Smart Traveller Pty Ltd [2025] NSWPIC 119
APPLICANT:	Lee Anne Cager
RESPONDENT:	Smart Traveller Pty Ltd
MEMBER:	Diana Benk
DATE OF DECISION:	31 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for surgical treatment to the L3/4 of the lumbar spine claimed to be consequential to a right hand and wrist injury; respondent disputed that the applicant had sustained consequential condition to the L3/4 disc; Kooragang Cement Pty Ltd v Bates, Kumar v Royal Comfort Bedding Pty Ltd, Nguyen v Cosmopolitan Homes, Jones v Dunkel, Onassis v Vergottis, and Watson v Foxman considered; inconsistencies in evidence both factual and medical; Held – applicant failed to discharge onus; award respondent in respect of the claim of consequential condition to the L3/4 disc of the lumbar spine and claim for surgery.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the Respondent with respect to the claim for a consequential condition to the L3/4 disc of the lumbar spine. A brief statement is attached setting out the Commission’s reasons for the determination.

WORKERS COMPENSATION DIVISION

STATEMENT OF REASONS

BACKGROUND

Lee Ann Cager (the applicant) injured her right hand (wrist and thumb) on 8 November 2011 at work with Smart Traveller Pty Ltd (the respondent). The insurer accepted liability for the wrist and thumb injury and then also a consequential condition to the lumbar spine at the L4/5 level.
In early 2023, the applicant sought surgical approval at the L3/4 level. She claims she suffered injury at this level when she fell from a ladder at home on 28 April 2022 due to weakness of grip arising from her 2011 injury.
The insurer declined liability on the basis it was not satisfied that the requirement for surgery to the L3/4 level was in any way related to the original right wrist injury that occurred on
8 November 2011 or the accepted consequential condition to the L4/5 level.
This prompted application to the Personal Injury Commission (Commission). The matter underwent the usual pathway ultimately proceeding to Arbitration. Mr Barter of counsel instructed by Ms Bergan represented the applicant. Mr Grimes of counsel instructed by Ms Wigham represented the respondent. Ms Wadick was the insurer representative.
The evidence consisted of the Application to Resolve a Dispute (ARD), the Reply and an Application to Lodge Additional Documents (ALAD) filed by the Applicant. The applicant was not cross examined.
The issue for determination is a narrow one, that is, whether the condition and request for surgical decompression at the L3/4 level results from injury that occurred on 8 November 2021.

How did the injury to the L4/5 occur?

The applicant has made three statements relating to the injury on or about 28 April 2022. The first statement was made on 17 November 2023, (approximately 18 months post events leading to this claim), the second on 26 November 2024 and finally on 20 February 2025.
In her statement dated 17 November 2023[1] (made 18 months after the event) injury particulars were as follows (unedited):
“49. On or about 28 April 2022, while ascending a step ladder and relying on my right hand for support, my right-hand loss grip due to a loss of sensation from my injury. I was merely two steps up, clutching the ladder with my right hand as I had something very light in my left hand. As I descended, my right hand abruptly lost its grip, leading to a backward tumble that felt like an electric shock upon impact. I landed flat and with all my body weight on my full spine causing a shock to run through all my limbs. Unable to move, I called for my husband, who came to my aid, witnessing the excruciating pain I was enduring”.
[1] Folio 8 - ARD
In her supplementary statement made on 26 November 2024[2] (made 31 months after the event) she stated (unedited):
“On or around 28 April 2022, I suffered a fall at home as a result of the recurring symptoms to my right hand. During the time of the bad floods in New South Wales, an insurance company supplied a mould cleaning company to clean out my furniture as it needed to be replaced. The cleaners left some items at the top of my walk-in wardrobe, including a very light frame object. I stepped up two steps on a step ladder to grab the frame, and I used my right hand to balance. I did not rest my whole-body weight on my right hand. As I stepped back, I experienced a shooting pain through my right hand. The shooting pain was so severe that I experienced extreme pain and numbness which made me trip backwards onto the floor. I called for my husband and spent several days in hospital with injuries to my spine and right hand….
From the date of injury up until the fall on 28 April 2022, I suffered from pain in my right hand and could only lift light items. I experienced pins and needles and weakness, especially in the region of my thumb and little finger.
Since this day, I have suffered a significant aggravation of my injuries to my right hand. Before the fall, I had never lost feeling in my hand before with these symptoms recurring very often since the injury. I am unable to tell when my right hand is going to lose feeling with these symptoms occurring more often since this fall. The feelings come on abruptly. In addition, due to overusing my left hand as a result of my right-hand injury, I now have excruciating pain in my left hand.”
[2] Folio 14 - ARD
In a further supplementary statement made on 2 February 2025[3] (made 33 months after the event) she stated (unedited):
“7. On 26 April 2022, during the time of the floods in NSW, an insurance company supplied a mould cleaning company to clean out my furniture as it needed to be replaced. The cleaners left some items at the top of my walk-in wardrobe, including a light wooden photo frame. I used a step ladder to reach up and get the frame, which I successfully obtained. However, upon coming down from the ladder, my foot was on the last step (closest the ground) when I experienced a sudden onset of pain in my right hand. I loss sensation in my hand, causing me to loss grip, causing me to jolt and fall backwards off the ladder. A bit away from the ladder was a basketball on the ground, when falling, I landed on it with my hip. I also hit my head on the corner of a bed frame before landing on the ground flat on my back. I confirm I did not step on the basketball causing my fall as alluded in the clinical records of Liverpool Hospital and Bowral Hospital.
8. I was then transported by ambulance to Bowral Hospital that same day. Upon arriving at Bowral Hospital, I told them how my injury occurred, however, I felt as though the nurse who was noting down my details was not completely paying attention and didn’t understand what I was saying, and thus, wrote down her interpretation of events in the clinical notes as opposed to what had actually happened. This is why the clinical records from Bowral Hospital state that I had my foot on a basketball and flipped backwards which is incorrect.
9. I stayed in Bowral Hospital until 28 April 2022 before they transferred me to Liverpool Hospital due the severity of my injuries. The clinical notes from Liverpool hospital also state that I had my foot on a basketball and that is the reason I fell. This can be attributed to the fact that when I was transferred from Bowral hospital, my clinical notes would have also been transferred, and no one at Liverpool hospital ever confirmed with me how my injury occurred.”
[3] Folio 1 ALAD

Medical Evidence

Prior to making her statements, it appears the applicant was unaware her treating doctor, Dr Hosny Mechreky, reported to the respondent dated 16 July 2023 in which he stated (unedited)[4]:
“Q.    Please advise whether or when Lee reported this to you?
A.     Briefly, Mrs. Cager had a fall from a small ladder onto her back on or about 28 April 2022. Mrs. Cager was holding onto the ladder with her right hand when suddenly she had no feeling her right hand and wrist, which caused her to fall from the ladder onto her back.
Mrs. Cager consulted with a local G.P at Wollondilly Medical Centre complaining of chronic pain in her neck and lumbar spine.   An ambulance was called and she was taken to Bowral Hospital, then on to Liverpool Hospital…
Q.     Please advise in the workers words how and when the incident occurred and what body part was injured
A.     Please refer to the “briefly” cause above. Mrs. Cager advises she was prescribed strong painkilling medication and following the accident had very limited memory of what happened, where she was at times and who attended to her (my emphasis). Mrs. Cager’s neck and back were injured in the fall, adding to her continuing pain.”
[4] Folio 19 Reply
Referral letter from Dr Simon May, Wollondilly Medical Centre dated 26 April 2022[5] states “fall onto lumbosacral spine today”.
[5] Folio 121 ARD
Progress notes from the Bowral Hospital confirm the applicant was brought in by ambulance on 26 April 2022 and recorded the following as [6]
“Mechanical fall on Good Friday 4/7 ago
Mobilising off a ladder- foot on basketball- flipped backwards- landing flat on back w/ headstrike- At the time of the episode- sharp sciatic type pain shooting down bilateral lower limbs- Managed at home with regular Paracetamol + Nurofen- Noticed development of sensory deficits, pins & needles to upper limbs & lower limbs- Additional worsening of headache- Presenting for review”.
[6] Folio 125 ARD
The applicant was then transferred to Liverpool Hospital on 28 April 2022 where the injury was recorded (unedited)
“Pt was given s/c morphine & antiemetic at Bowral hospital before t/f to Liverpool hospital as per handover. Pt informed n/staff had a fall off small ladder at home day before Easter…”
Dr Darwish in his report dated 27 March 2023[7] recorded (unedited):
“Because of her weak hand she was holding onto something and her hand gave way and she had a fall…
The MRI scan of the whole spine on the 16^th March 2023 done at Campbelltown Hospital showed L3/L4 canal stenosis above the fusion in keeping with adjacent level disease…
Regarding the back and leg symptoms I recommended L3/L4 partial laminectomy and decompression of both L3 and L4 nerve roots.”
[7] Folio15 ARD
In his report dated 19 April 2023[8], Dr Darwish postulated that “the L3/L4 canal stenosis is most likely pre-existing aggravated by the fall”. (This report does not expand on how the fall occurred.)
[8] Folio 17 ARD
Dr Bodel was qualified by the applicant and reported on 14 August 2023[9]. As regards injury he recorded (unedited)
“…she had a further injury on 28 April 2022 when she fell off a ladder while doing some work after the floods in her area. She was still having trouble because of the weakness in the right hand and she lost her grip with the right hand and fell, re-injuring her back. She was helped up by her husband. She saw her local doctor and was seen by Dr Sheridan. He did not recommend any further surgery.”
[9] Folio 30 ARD
In his report dated 18 October 2024[10]
“On 28 April 2022 she had a further injury when she fell off a ladder. She had been hanging on with her right arm and due to weakness in that arm from the previous injury, she lost her grip and fell. She re aggravated her back. She on this occasion saw Dr Darwish, another spinal surgeon who recommended a laminectomy at the at the L3/4 level with a decompression of the L3 and L4 nerve roots and she has given that consideration….
The fall on 28 April 2022 has further aggravated the situation. This is causally related back to the original injury because it occurred when she lost grip with the weakened right hand following the surgery to that area.”
[10] Folio 37 ARD
Specifically on examination of the upper limb he recorded[11] (unedited)
“Today she again has full shoulder abduction and rotation, and no lack of elbow movement. There has been a resection arthroplasty at the base of the thumb on the right-hand side with a slight weakness of pinch grip. There is also some discomfort on circumduction. There is no restriction of wrist or hand movement in the left wrist. There is a slight restriction on the right side in the thumb only. There is no median or ulnar nerve pathology in the upper limb and no reflex abnormality or sign of sensory impairment in the upper limbs.”
[11] Folio 40 ARD
Clinical notes of the Royale Medical Centre do not reveal complaints of right upper limb weakness between 2017 to 2023.[12]
[12] Folios 320 to 475 ARD
There are a number of reports from Associate Professor Gumley (hand and wrist specialist). On 15 December 2016 he reported arthrodesis of the MCP joint of the right thumb radiologically appeared sound and was stable on clinical assessment, [13] although referred the applicant to Dr Davies, pain specialist. The records show he discharged the applicant from his care in 2017 at which time he recorded “she appears[14] to have reached a point of adequate stability”.
[13] Folio 92 ARD
[14] Folio 88 ARD
Dr Davies in a report dated 5 June 2023[15] reported (unedited):
“I saw her on 5 June 2023. She suffered a fall at work in November 2011 and a rack of clothing fell on top of her. She developed pain in her right hand and in her lower back. She has had three operations on the right hand, including excision of the trapezium, tendon reconstruction and what sounds like an internal fixation procedure. She also had pain in the lower back and leg and had a laminectomy performed by Dr Day and subsequently an L4/5 fusion. She later had a decompression procedure in the cervical spine to treat neck and right upper limb pain, but there was no improvement following that. She reports a further injury last year when she was a couple of steps up a ladder at home and had a fall onto her back. The function in her right hand has been worse since then.”
[15] Folio 223 ARD

Submissions

On behalf of the applicant it was submitted:
(i)there are two ways the applicant’s case can succeed. The first being that the need for surgery to the L3/4 now arises as a result of progressive degenerative changes from the previous L4/5 injury and surgical intervention that was the result of the 2011 injury, (although it was later acknowledged that this was not the claim made). Alternatively, that the damage to the L3/4 occurred as a result of the sudden onset of pain in the right hand which caused her to fall, and was therefore consequential to the original injury to the right hand on 8 November 2011.
(ii)the medical history shows that the applicant has had significant symptoms in the right hand and wrist and lower back for which she has had multiple surgical procedures, and requiring significant medication to control pain and for which she regularly sought medical attention.
On behalf of the respondent it was submitted:
(i)the applicant may claim that there are two ways to establish liability, however the only claim that is pleaded is the consequential injury, and specifically that the applicant sustained an injury to her L3/4 disc resulting from weakness in the right wrist;
(ii)the applicant has failed to establish on the balance of probabilities that her current need for treatment results from the injury on 8 November 2011;
(iii)the applicant’s case is problematic as she has provided a variety of different versions of what happened in April 2022 and the significant variance in reporting of symptoms can only lead to the conclusion that her version of events is unsupported by the contemporaneous medical records. Any subsequent qualified opinion has been infected by inaccurate recall;
(iv)the general practitioner records the applicant has “very limited memory” yet she has provided three statements post that entry attempting to recreate with precision the circumstances of events that either occurred on Good Friday (15 April 2022), 26 April 2022 or 28 April 2022, including an allegation that the nurse attending to her at Bowral Hospital had inaccurately recorded particulars concerning the injury;
(v)at no stage do any of the medical entries refer to the weakness in the right wrist as being the cause for the fall, but rather due to stepping back with her foot on a basketball;
(vi)the applicant presented to the Wollondilly Medical Centre from where an Ambulance was called. The applicant has failed to provide the clinical notes from that medical centre or the ambulance report and has also failed to provide a statement from her husband who came to her aid following the fall, such failure clearly being grounds for a Jones v Dunkel[16]inference;
(vii)there has been a break in the chain of causation, and
(viii)the applicant’s history of injury is unreliable. I was referred to the principles found in Onassis v Vergottis[17] and Watson v Foxman (1995) 49 NSWLR 315.
[16] [1959] HCA 8, 101 CLR 298
[17] [1968] 2 Lloyds Rep 403,
In reply, the applicant submitted;
(i)the chronology or memory may be imperfect but this only highlights that memory difficulties exist due to the need to take such high levels of pain medication resulting from the injuries that occurred at work on 8 November 2011;
(ii)the different dates of injury are of no consequence. What is relevant here is that the applicant’s fall from the ladder occurred due to weakness in the right wrist/hand (an accepted injury) and the injury at the L3/4 level is consequential and resulted from the original injury on 8 November 2011;
(iii)there has been no break in the chain of causation;
(iv)the respondent has sought to challenge the applicant’s credibility specifically due to her failure to obtain the Wollondilly Clinical Notes or the Ambulance records, however it was open for the respondent to subpoena that evidence;
(v)the fact that the applicant has failed to refer to the basketball is irrelevant as the fall occurred due to pain in the right hand, and
(vi)there is no evidence to suggest that the fall was anything different from what the applicant has indicated. It is clear that she has had persistent pain and symptoms in the wrist since 2011.

GENERAL PRINCIPLES

Consequential condition

The Workers Compensation Act 1987 (the 1987 Act) does not define a consequential condition. Authorities establish the following key principles relevant to this case, (which by no means are exhaustive):
(i)the applicant bears the onus of establishing the existence of a consequential condition on the balance of probabilities[18] (Kumar);
(ii)each case must be determined on its own facts;
(iii)in order to establish a condition, there is to be a ‘common sense evaluation’ of the causal chain, determined on the basis of the evidence, including expert opinions[19] (Kooragang);
(iv)a consequential condition occurs when an applicant experiences a new injury or condition due to the effects or consequences of their original work-related injury;
(v)reliable and contemporaneous medical evidence plays a significant role in establishing causation;
(vi)there must be an unbroken chain of causation from the injury to the development of the consequential condition;
(vii)a court (the Commission) should not act upon an expert opinion the basis for which is not explained by the witness expressing it.[20] (Edmonds).
[18] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.
[19] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).
[20] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [130] McColl JA.

Novus actus interveniens

Simply put, this is an intervening act which severs the chain of causation between the workplace incident and a subsequent state of affairs.

Jones v Dunkel inference

The above case has been the subject of much judicial discussion but the following key principles emerge;
(i)the inference may be drawn against a party where the party would be expected to, but does not, call a witness who could give evidence on a relevant matter and that failure is unexplained[21];
(ii)the inference to be drawn is not that the witnesses’ evidence would have been adverse to its case, but rather it would not have assisted the case[22];
(iii)the inference permits the making of a finding that is unfavourable to a party with greater confidence[23];
(iv)for the inference to be drawn, there must be evidence that the party against whom it is to be drawn is required to explain or contradict[24], and
(v)the drawing of an inference is not mandatory and, generally speaking, these inferences only become material where the balance of the evidentiary record is equivocal[25].
[21] Payne v Parker [1976] 1 NSWLR 191 at 201
[22] Kuhl v Zurich Financial Services [2011] HCA 11; 243 CLR 361 at [64];
[23] ASIC v Hellicar [2012] HCA 17; 247 CLR 345 at [168] and [232]
[24] Schellenberg v Tunnel Holdings Pty Limited [2000] HCA 18; 200 CLR 121 at [51]
[25] Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53

Onus of proof

When making findings, the Court of Appeal in the matter of Nguyen[26] 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.
[26] 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.”[27] (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.’”[28]
[27] Onassis v Vergottis [1968] 2 Lloyds Rep 403 at 431
[28] Watson v Foxman (1995) 49 NSWLR 315 at 319

CONSIDERATION, FINDINGS AND REASONS

I find the claim as pleaded unconvincing. In reaching this conclusion, I considered the factual and medical evidence and undertook a common sense evaluation of the causal chain (Kooragang). When embarking on a common sense assessment, (that is, a sound and prudent judgement based on the analysis of the situation and facts with a degree of practicality combined with logic), I analysed the chronology, medical evidence (and lack thereof), factual statements (and lack thereof) and overall found I was left with more questions than answers causing me to cast doubt on the common sense causal case theory and chain of causation advanced by the applicant. This is because;
(i)I am skeptical about the veracity of the applicant’s belated statements, which attempt to detail the precise mechanism of injury on a background of certified “very limited memory”;
(ii)each statement has variations of how the injury occurred, which I find significant enough to cast doubt on their accuracy. The first statement describes injury occurring as “as I descended, my right hand abruptly lost its grip”. In the second statement it was recounted as “as I stepped back, I experienced a shooting pain through my right hand. The shooting pain was so severe that I experienced extreme pain and numbness which made me trip backwards onto the floor”. In the third statement, the above two scenarios become somewhat amalgamated as “I loss sensation in my hand, causing me to loss grip, causing me to jolt and fall backwards off the ladder”. Simply put, I am unclear of the sequence of events, which of itself are not fatal to the case but given other inconsistencies raise doubt;
(iii)the applicant presumably has generated the additional statements to rebut the hospital records which suggest a novus actus interveniens (that is foot on basketball) or in an attempt to correct the fact that she made no mention of reduced grip in the right hand being responsible for the fall both at the time of presentation to both the general practitioner or the hospital on 26 April 2022, but which now is the foundation of her case. I find the attempt to rewrite history, including allegations the nurse had incorrectly recorded the history, coupled with the inconsistencies in her first two statements about how the fall occurred is reflective of the applicant either consciously or unconsciously “attempting to conjure up a legal right that does not exist” (Onassis). This is especially so given her general practitioner has reported “very limited memory”;
(iv)I understand that the applicant’s native language is English and so the above inconsistencies cannot be attributed to poor language skills;
(v)regardless of what occurred, that is, the abrupt loss of grip, or the shooting pain causing extreme pain and numbness or a combination of both, none of the medical evidence supports that the clinical profile in her right hand consisted of such symptoms. The medical records show an injury to the right thumb and wrist in 2011 for which surgical intervention took place and the applicant was ultimately discharged from the care of her hand surgeon in about 2017. This is consistent with the applicant’s second statement in which she says “before the fall, I had never lost feeling in my hand”. So essentially for a period of nearly 11 years, the applicant had not experienced the symptoms that she says is the cause of her fall. She offers no reason why on this particular day she experienced symptoms given their absence for over a decade. This is also consistent with the lack of treatment sought for the hand since 2017 (on this note I appreciate that the applicant has been prescribed regular medication but the records are silent on whether this was for the wrist alone or her significant other medical conditions);
(vi)there is no medical evidence before me that suggests that the muscles of the hand used to form a grip were so affected by the 2011 injury so as to cause the claimed event;
(vii)the regular general practitioner, Dr Mechreky, recorded “no feeling” in the hand and wrist causing the fall, which again is inconsistent with the applicant’s symptoms in her various statements;
(viii)the qualified medical case only casts further doubt on the injury to the lumbar spine resulting from the right wrist and hand injury on 8 November 2011. Initially, Dr Bodel recorded she lost grip in her right hand. In his subsequent report, he recorded the mechanism of injury as “she had been hanging on with her right arm and due to weakness in that arm from the previous injury, she lost her grip and fell”. (Again, this is not consistent with the applicants claim of being only on a small step ladder and not placing her body weight on her right hand). The 2011 injury was confined to the right wrist and thumb and did not involve the arm as a whole. Dr Bodel does not offer a medical explanation for the loss of grip in April 2022, particularly given the original pathology in the hand. His clinical assessment confirmed no median or ulnar nerve pathology in the upper limb; no reflex abnormality or sign of sensory impairment in the upper limbs, observing only slight restriction on the right side in the thumb only. He recorded a slight weakness of “pinch grip” but this does not account for the entire right hand losing its grip;
(ix)Dr Davies, pain specialist records the fall from a ladder but only reports “function in the right hand has been worse since then”. He does not record any of the versions advanced by the applicant;
(x)the contemporaneous record of the Wollondilly Medical Centre (a referral to the hospital) and the Bowral hospital notes, record the mechanism of injury as a fall from a ladder. At no stage, is there a record that weakness of grip caused the applicant’s fall. Certainly no treatment was provided for such weakness of grip at either the medical centre or hospital;
(xi)the applicant maintains that the nurse at the hospital was not paying attention to what was being said. I cannot accept this as the nurse has specifically referred to a basketball, which the applicant concedes was on the floor in her third and final statement, (but did not form part of her initial and second statement). I do not accept that the nurse incorrectly recorded the details given that she accurately recorded the type of ball. The argument would be plausible if the nurse had recorded another type of ball, but this is not the case, however nothing significant turns on this finding;
(xii)at the risk of repetition, there is a paucity of medical evidence suggesting the applicant had experienced weakness of grip in the right upper extremity as a consequence of her 2011 injury. I accept that she has had three surgical procedures to the right hand (thumb and wrist), but the discharge notes of Professor Gumley and the pain specialist suggest that the surgery adequately treated the pathology. Dr Bodel on his examination recorded that “there is a slight restriction on the right side in the thumb only. There is no median or ulnar nerve pathology in the upper limb and no reflex abnormality or sign of sensory impairment in the upper limbs”. This coupled with the lack of reported complaints to the general practitioner between 2017 and 2023 do not support the contention that the wrist or hand was so weak as to cause “a loss of grip”; or a “loss of sensation” or; “extreme pain and numbness” or “shooting pain” as described by the applicant in her various statements; and
(xiii)I also find it appropriate to make a Jones v Dunkel inference. This is because I find the omission of the clinical notes from the Wollondilly Medical Centre, the Ambulance Record and the absence of a statement by her husband noteworthy and weighty, and I conclude given the inconsistencies in this matter, that such evidence would not have assisted her case, particularly where the balance of the evidence is equivocal. I acknowledge the applicant’s submission that if the respondent wanted that evidence, it could have called for it, however, the burden to establish the case rests with the applicant.
The applicant carries the onus of establishing on the balance of probabilities the condition now existing at the L3/4 level of the spine resulted from her accepted right wrist injury. 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).[29] It is not necessary that I be satisfied to a degree of medical or scientific certainty but, on the other hand, it will not be sufficient if I am merely satisfied that it is possible that the condition is related to employment. I find that it is highly likely there has been a break in the chain of causation (novus actus interveniens), however exploration of this is unnecessary given the credibility findings and inference drawn.
[29] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
I acknowledge the applicant’s submission that the confusion in the date and mechanism of injury should not be fatal to the applicant’s case. I disagree in these circumstances. When assessing a consequential condition, reliable and contemporaneous medical evidence plays a significant role in establishing causation and further there must be an unbroken chain of causation from the injury to the development of the consequential condition. The evidence before me falls significantly short and has promoted significant reservations and misgivings on the case theory advanced by the applicant.
Given the conflict between the medical evidence and the applicant’s own statements, coupled with the Jones and Dunkel inference, I find the applicant has not discharged, to the requisite standard, the onus that her condition to the L3/4 (lumbar spine) results from or is consequential to her injury on 8 November 2011. Given this finding, it follows that the requested surgery does not “result from” such injury.

SUMMARY

For the reasons above, I have made the order set out on page 1 of this Certificate of Determination.

[2025] NSWPIC 119

31 March 2025