Cain v I&C Homes Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Cain v I&C Homes Pty Ltd [2025] NSWPIC 342
APPLICANT:	Luke Cain
RESPONDENT:	I&C Homes Proprietary Limited
MEMBER:	Parnel McAdam
DATE OF DECISION:	16 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; whether applicant suffered an injury as alleged; struck head on metal bar suffering a whiplash injury; was on worksite alone at the time; failed to report injury or attend general practitioner; symptoms deteriorated and eventually required surgery; sections 254 and 261; Held – applicant’s failure to notify injury and failure to make a claim occasioned by ignorance, mistake or other reasonable cause; applicant suffered an injury to the cervical spine as alleged; award of weekly compensation; matter referred for assessment of whole person impairment.
DETERMINATIONS MADE:	1. The applicant failed to notify of his injury before he voluntarily left employment but he has satisfied s 254(2) of the Workplace Injury Management and Workers Compensation Act 1998. 2. The applicant failed to make a claim within six months after his injury occurred, but the failure was occasioned by ignorance, mistake or other reasonable cause. 3. The applicant suffered an injury in the course of his employment to his cervical spine on 18 February 2023. 4. Employment was a substantial contributing factor to that injury. 5. The respondent is to pay the applicant weekly compensation for the period 20 September 2024 to 23 November 2024 at the rate of $1,320 per week pursuant to section 36 of the Workers Compensation Act 1987. 6. The respondent is to pay the applicant weekly compensation pursuant to s 37 of the Workers Compensation Act 1987: (a) for the period 24 November 2024 to 30 March 2025 at the rate of $1,112 per week, and (b) for the period 1 April 2025 to date and continuing at the rate of $1,120 per week (represented an indexed PIAWE figure of $1,400). 7. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 18 February 2023 (b) Body systems/parts: (i) Cervical spine, and (c) Method of assessment: whole person impairment 8. The documents to be referred to the Medical Assessor are: (a) the Application and attached documents; (b) the Reply and attached documents; (c) Application to Lodge Additional Documents, lodged by the applicant on 13 June 2025, and (d) Application to Lodge Additional Documents, lodged by the respondent on 13 June 2025. 9. Liberty to apply in respect of the weekly compensation benefits.

STATEMENT OF REASONS

BACKGROUND

Mr Cain was employed by the I&C Homes Pty Ltd (the respondent) as a carpenter. His duties involved general construction work. He alleges that on 18 February 2023, he injured his neck when he hit his head on a metal bar on some scaffolding.
This would generally be a straightforward issue to determine, but there are complications to this case. The first is that when the incident occurred, Mr Cain was the only worker on site. There were no witnesses to the incident that he alleged occurred. The second is that Mr Cain did not report the incident to anyone, nor did he attend any doctors or obtain any medical assistance in respect of the event. It was no until 24 July 2023 that Mr Cain first attended for any treatment in respect of symptoms that he was experiencing. At this time, Mr Cain was no longer employed by the respondent. The third complication is that on 8 November 2023, Mr Cain fell off some scaffolding, hurting (primarily) his back.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) injury pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act);
(b) substantial contributing factor pursuant to s 9A of the 1987 Act, and
(c) notice of claim and notice of injury pursuant to ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The matter proceeded to conciliation/arbitration on 19 June 2025. Mr Cain was represented by Tom Grimes of counsel, instructed by LHD Lawyers. The respondent was represented by John Gaitanis of counsel, instructed by Turks.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    Application to Lodge Additional Documents, lodged by the applicant on 13 June 2025, and
(d)    Application to Lodge Additional Documents, lodged by the respondent on 13 June 2025.

The applicant’s statement

At the crux of the dispute between the parties is a factual issue, largely canvassed by Mr Cain’s statement of 24 March 2024.
Mr Cain sets out the background to his employment with the respondent, as well as his earlier employment. He describes the circumstances of the injury, said to have occurred on 18 February 2023, in the following terms:
“I crouched down and walked to get some material when I knocked my head on a metal bar on a scaffold. My neck was jerked backwards, and I experienced immediate pain in my neck and on the right side of my body. I was quite dazed for the next 30 minutes and I saw stars. I took a seat whilst I gathered myself and returned to work once I felt good enough. My neck and right arm were still in pain.”
Mr Cain notes that no one witnessed the incident and he did not think it was serious at the time. He goes on to describe pain coming and going, including pins and needles in his right hand and weakness. Mr Cain then describes a significant onset of pain on 24 July 2023, when he took himself to Manning Base Hospital. Treatment was delayed but eventually Mr Cain had a cervical decompression and fusion on 24 April 2024.
Mr Cain also explains how he came to make a claim for this injury, which was first mentioned casually or in passing to his solicitors, who were acting in his behalf in respect of a separate back injury.
Attached to the respondent’s Application to Lodge Additional Documents and obtained from the claim file in respect of a separate injury is a statement of Mr Cain dated 29 November 2023. Mr Cain fell off scaffolding when employed by a separate employer (Fez Build Pty Ltd). Mr Cain describes himself as “suffering from a spinal injury which was a result of an accident 12 months ago”. He describes his duties.
He goes on to describe an incident at work on 8 November 2023, where he slipped and fell off a scaffold from a height of about 1m. He also further describes the ongoing issues in his neck as a result of (as he states) his employment with the respondent in this dispute.

The other statements

The respondent relies on three statements. Two of other employees of the respondent, and one from the company director.
Some of the contents of those statements are hearsay and unverifiable. This includes in Ms Grey’s statement, where she describes conversations she had with a third party as well as text messages exchanged. I will not place any weight on those aspects of the statement.
What is apparent and appears factually consistent is that Mr Cain was at a worksite on 18 February 2023, and was alone on that occasion.
Mr Letisi, who was a work colleague of Mr Cain’s, provides a statement dated 13 August 2024. He has no recollection of Mr Cain ever reporting any injury to his neck or arm. He describes some heavy work Mr Cain assisted him with on 13 August 2023, involving lifting a steel beam weight 100-120kg.
Zebb Peters, also an employee of the respondent, provides a statement dated 13 August 2024. He does not dispute that Mr Cain could have been working on 18 February 2023, but suggests that if he did so on his site on his own it would have been highly unusual. He states that Mr Cain continued to work as usual after the alleged date of injury, and that he never requested to do lighter duties or reduce his work hours due to any type of injury.
Although not specifically obtained by the respondent, attached to the Application to Lodge Additional Documents is a statement of Mr Genoni, dated 29 November 2023. Mr Genoni is the director of Fez Build Pty Ltd, Mr Cain’s subsequent employer following ceasing employment with the respondent. The statement largely deals with issues that have apparently arisen in respect of a separate claim, including whether Mr Cain was an employee of that entity or a contractor. That is not relevant for the present proceedings. Aspects of this statement that were addressed in submissions include Mr Cain’s ongoing complaints of pain whilst employed with Fez Build Pty Ltd and the nature of the applicant’s duties in that employment.

The independent medical expert opinions

The applicant relies on a report of Dr Edger, a neurosurgeon, dated 26 November 2024. He records the following history of injury:
“The symptoms began during the course of his work on 18th February 2023. Luke describes hitting the top of his head (he was wearing a hat) whilst working installing cladding on houses, employed by I and C Homes Pty Ltd. He bent forwards, hitting his head on a bench. He describes being dazed for around 30 minutes, but he did not lose consciousness. His neck was hyperextended, and he experienced immediate neck, and right upper and lower limb pain. He didn’t say much, trying to avoid a workplace injury on his record, and the pain initially settled, but them began to come and go for a while, with the recurrences being more frequent, severe, and lasting longer, and then came back and didn’t go.”
He goes on to describe Mr Cain appearing at Manning Base Hospital on 24 July 2023, with symptoms of neck pain, right upper limb pain and weakness. He provides the following opinion supporting injury:
“Yes, there was an acute hyperextension injury associated with a 30-minute period of feeling “dazed” and acute neck, right upper limb and right lower limb pain. This is consistent with an acute insult to the spinal cord.”
Dr Edger comments on Dr Hyde Page’s report, noting that it was largely in response to the injury that occurred on 8 November 2023.
Dr Hyde Page provides a report dated 23 November 2023. He describes the incident that occurred on 8 November 2023 in the following terms:
“Luke Cain states that on the 8 November 2023, he was working on a house being built near Kew on the Mid North Coast. This was a steelframed house, and he was putting timber frame on the steel, before the cladding could be added, He was standing on the first low platform or rung of the scaffolding, when he slipped. This happened about 10.30am, two and a half hours into his working day. He was wearing work-boots, He fell backwards and hit his right lower back against the metal bar of the scaffolding causing his back to arch over the bar. At the same time, he jarred his neck.”
He also describes the past history (the history relevant to this dispute) in the following terms:
“He did have a significant problem with his cervical spine and when he was working for GJ Gardner about year ago, he jarred his neck when he unknowingly walked into scaffolding while he was wearing a cap and hit his forehead on a couple of occasions. After this, he developed right sided neck pain going into his shoulder and arm. After he finished this work with GJ Gardner in April 2023, when the work dried up, he attended the Manning Base Hospital in about May 2023 and was investigated with CT scan and MRI scan of his cervical spine, before being seen by a Neurosurgeon who visits Taree, Dr Bhisham Singh.”
In respect of the contribution from the previous injury (i.e. the presently pleaded injury), Dr Hyde Page comments:
“He has suffered an exacerbation of his right sided neck and right shoulder and upper arm Symptoms as a consequence of the work injury on the 8 November 2023 He already had significant wasting and weakness in his right upper limb that was pre-existent.
I would anticipate that any exacerbation to his symptoms caused by the injury on the 8 November 2023 will settle completely in the next few weeks.”
Dr Powell provides a report for the respondent. He describes the injury in question in the following terms:
“On the day in question Mr Cain recalled working on a construction site and reached down underneath a beam in order to retrieve some cladding. He struck his forehead on the beam which forced his head back into a hyperextended position with a whiplash component. He was aware of the immediate onset of burning pain in the neck with radiation to the right arm along the line of the biceps. He continued working. Pain settled over the next week, though he would suffer regular flares in symptoms over the next few months without any specific precipitating incident.”
Dr Powell supports the injury as claimed by the applicant. He provides a diagnosis of a musculoligamentous injury and some aggravation of underlying multilevel cervical spondylosis. Dr Powell agrees with the comments of Dr Hyde Page noting that the cervical spine was a pre-existing condition that was well established at the time of injury to the lower back.
Dr Kamat provides a report dated 23 September 2024. He did not physically examine Mr Cain. He accepts an injury occurred which was a “hyperextension injury of his neck”.

Clinical and treating records

It is common ground that there was no immediate treatment obtained by Mr Cain, no report of injury, and no attendance on any medical practitioner around the time the injury is said to have occurred. The first attendance is to the emergency department of Manning Base Hospital on 24 July 2023, where Mr Cain complained of pain from right side of neck radiating down to hand increasing over the last few dates, with a medical history of same. There is no reference to any injury occurring in February on that occasion, with a primary diagnosis provided of “cervical arthritis”.
Mr Cain then attended on his general practitioner and was referred to Dr Singh for review. In a report dated 2 August 2023, by Dr Arreza, no reference is made to the event in February. Mr Cain delayed his attendance on Dr Singh as he underwent physiotherapy but noticed ongoing weakness, and was re-referred on 23 October 2023, again with no reference to anything occurring in February 2023, but rather “acute onset right shoulder and arm pain in July 2023”.
Mr Cain next attended Manning Base Hospital after his back injury. Records there show pain “mainly around his lumbar spine”. On 7 February 2024 he again attended due to “worsening RUL symptoms”, which refer to symptoms commencing in October.
A medical certificate dated 14 March 2024 refers to “right sided arm weakness pain and muscle wasting since July 2023”.
A clinical note on 4 November 2023 from Dr Arreza notes ongoing right arm weakness with “nil antecedent injury”. On 14 March 2024, a clinical record records:
“asking for a work capacity certificate regarding the neck problem as requested by his lawyers
says it happened at work a while back but I don't have evidence to this claim unfortunately as In only saw him in August
2023 and he did not mention that the injury happened at work
he also unfortunately did not mention it in MBH ED when he consulted on 24 July 2023”
There are some records attached from Mr Cain’s treating physiotherapist. On 19 October 2023 (which predates the fall off scaffolding), Ms Hudson records:
“No MOI. All within the last 6 months. Had sharp pain intermittent R shoulder. So bad he had to go to hospital. Has had many scans. MRI cusp showed degenerative changes. Ultrasound yesterday - nothing significant. Main concern is atrophy and weakness in R arm. Seeing GP on Monday. Was progressively getting worse over time. Thumbs click. Numbness. p+n.
R muscle growth has been slower than L for a long time. Started years ago with burning pain upper back but it went away so wasn't super concerned.”
Under “medical history” it is recorded “Has had head an neck trauma at walk [sic]”. It is not clear what this is in reference to as the history is rather vague but could be a reference to the incident that Mr Cain says occurred on 18 February 2023.

SUBMISSIONS

The parties provided oral submissions at the hearing on 19 June 2023. Those submissions are recorded and I do not intend to repeat them in great detail here.
The applicant commenced by going through the applicant’s statement attached to the Application as well as the statement prepared for the injury suffered in different employment. In respect of that latter statement, the applicant submits that this is compelling evidence for the applicant’s case that supports symptomology for the injury since injury and into the subsequent employment. In circumstances where there is no evidence of intervening injury, this is compelling evidence.
The applicant then addressed the three statements provided by other employees of the respondent, including the weight that could be given to the statement of Cheryl Grey, which contains hearsay evidence. The applicant submits that it is not really disputed that Mr Cain could have been on site when the injury occurred. He was the only one there. The sum total of evidence supports that injury was likely to have occurred on that day.
The discharge summary from July 2024 shows compelling pathology from that date, and fits within the applicant’s statement. The applicant then referred to the independent medical expert opinions and submits that the reports are totally in lock step.
In respect of the notice provisions, the applicant submits that Mr Cain was ignorant of his entitlement to make a claim for his neck injury until he told his solicitors and would not have known if not for contacting them. It would be quite an easy conclusion to draw that a carpenter would not be aware of s 254 and 261 of the 1998 Act. There is also the separate reasonable explanation that the applicant was a person who basically soldiered on since his injury until he could no longer do so.

Respondent’s submissions

The respondent first pointed out that no one knew of any problem in Mr Cain’s neck until much later, and there is an element of reconstruction in this case. The evidence is underwhelming that anything happened in February 2023.
The respondent first addressed the s 254/261 issue, submitting that the explanation given by the applicant is not plausible. He knows in November 2023 that he has an entitlement to make a claim for compensation, because he sees a solicitor after he fell off the scaffold. It is not plausible that he wasn’t aware he could make a claim for neck injury because he was aware he could make a claim for the back. The better explanation is that nothing happened in February 2023 and that’s why he didn’t make a claim.
The respondent submits that the EML claims file suggests that Mr Cain suffered a neck injury on 8 November 2023. In respect of the medicolegal opinions, the respondent submits that Dr Powell is not decisive on the liability question, who is responsible for the neck is ultimately for the Commission to decide.
It is clear that in July 2023 the applicant has some issues in his neck, but nothing is said about employment.
In respect of the fall with Fez Build Pty Ltd, the respondent submits that this is a novus actus, and this is an explanation for the condition. That employer has liability for the neck injury, not the respondent. When Mr Cain saw Dr Singh just before the fall, he said that his pain in the arms any more and his pins and needles have disappeared.

The respondent submits there is a degree of inconsistency of the applicant’s description of how the injury in February 2023 is said to have occurred. The history is so imprecise and inconsistent that I would not accept that anything happened on 18 February 2023. What is more likely is that nothing happened on that date but that he has a degenerative condition. It was submitted that on the basis of the inconsistent histories, I can’t accept the applicant as credible, and that there has been an element of reconstruction.
The respondent then traversed the other statements given in this case and the clinical records, which show a lack of complaint with the presently claimed injury. The respondent submits ultimately that I would not be satisfied that the event occurred.

Applicant in response

The applicant made brief submissions in response.
The first was in respect of any allegation of a novus actus – the applicant submits that Dr Hyde Page’s opinion does not rise to that level. He says there was existing weakness and wasting and acknowledges the previous history. There has been a clear history from the applicant of problems since the pleaded injury.
In respect of the clinical notes, the applicant makes the usual submission consistent with the case law that caution is to be had in respect of busy doctors, moreso when inconsistent with sworn evidence. It was also submitted that I should treat the statement of the supervisor from Fez Build Pty Ltd with caution, but in any event it corroborates the position of the applicant.

FINDINGS AND REASONS

The notice provisions

It is appropriate that I deal with this issue first as it represents an absolute bar to an entitlement to compensation. The applicant failed to notify of an injury and failed to make a claim in accordance with the legislation and thus s 254 and 261 of the 1998 Act are relevant.
The relevant notice provisions provide (s 254):
“(1) Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2) The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3) Each of the following constitutes special circumstances—
(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d) the injury has been reported by the employer to the Nominal Insurer in accordance with this Act,
(e) the employer has contravened section 231,
(f) the injury has been treated in a first aid room at the place of work,
(g) if the employer is the owner of a mine—the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Work Health and Safety Act 2011.”
And s 261 provides:
“(1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2) If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.
(3) For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
(4) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either—
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
(5) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6) If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.
(7) If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.
(8) In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
(9) When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.”
The applicant first lodged a claim for injury on 24 July 2024. This also represents the first notification of injury. The notice requirements are slightly different – injury must be notified as soon as possible after the injury happened and before the worker has voluntarily left employment, and a claim must be made within six months after the injury happened. Mr Cain has not notified in accordance with both provisions, but relies on the exception that this failure was occasioned by ignorance, mistake, absence from the state or other reasonable cause.
In Albury Real Estate Pty Ltd v Rouse & anor [2006] NSWWCCPD 139 (Rouse), ADP Roche discussed s 65(13) of the 1998 Act, which is virtually identical to s 261. The Deputy President said this:
“The words used in section 65(13) are virtually identical to those used in section 53(1)(b) of the Workers Compensation Act 1926 (‘the 1926 Act’). Under that legislation it was accepted that ‘mistake’ included a mistake of fact, one of law, and a mixed mistake of fact and law (C P Mills Workers Compensation (New South Wales) second edition (‘C P Mills’) page 466 and Stevenson v Metropolitan Meat Industry Commissioner [1937] WCR 120 at 124-5). In G C Singleton & Co Pty Ltd v Lean (Seymour) [1970] ALR 129 (‘Seymour’) it was held that ‘ignorance’ will include the case where the worker does not know of the need to give the notice within the specified time.”
The Deputy President went on to refer to Garratt v Tooheys Ltd [1949] WCR 80 where it was held that the other reasonable cause were the grounds that led to the failure to claim. It is a mixture of facts, circumstances and motive that must be considered, in the sense that the omission is reasonable in light of all of the circumstances the worker found themselves (Rouse at [31]).
The applicant’s statement addresses the issue in a relatively sparse way. He states:
“I understand the workers compensation insurer has disputed my claim as I did not lodge it within 6 months of my injury. I was unaware that I was able to do this and would not have known if not for my solicitors. Should I have known, I would have lodged the claim as soon as possible and hopefully received treatment earlier as I now believe I will never return to my pre-injury self”.
The facts in this case, surrounding the s 254/261 issues are:
(a)    Mr Cain suffered a significant blow to his head on 18 February 2023 (whether it is accepted that this occurred will be dealt with on my consideration of injury, below). This was not reported to anyone, and there were no witnesses to this event;
(b)    Mr Cain was stunned by the force of the blow, and needed to rest for around 30 minutes;
(c)    The blow resulted in a whiplash-type injury, but Mr Cain was able to return to work on the same day and continued in employment without significant restriction, although the pain would come and go from time to time;
(d)    Mr Cain soldiered on in employment with the respondent until he voluntarily left that employment;
(e)    Symptoms in the neck and arms came to a head on 24 July 2023, when Mr Cain attended Manning Base Hospital;
(f)    Mr Cain did not provide any history to the hospital of any work injury on that occasion;
(g)    The symptoms and radiology were significantly serious to warrant referral to an orthopaedic surgeon;
(h)    Mr Cain did not initially pursue that line of treatment as he thought his neck would improve through physiotherapy (partly at the recommendation of his neighbour, who is a physiotherapist);
(i)    Mr Cain had a fall from some scaffolding on 8 November 2023, where he suffered a significant lower back injury, and potentially a minor aggravation of his pre-existing neck condition;
(j)    Mr Cain underwent treatment for that back injury, including physiotherapy, but the symptoms in his arms became more significant;
(k)    He saw his present solicitors (at some point) about his back injury, where he mentioned his previous neck injury, and
(l)    His solicitors provided him some advice in respect of the neck injury, and ultimately he made a claim for compensation and gave notice of injury on 24 July 2024.
The relevant period for consideration is the period of 6 months for the making of a claim and the period until he left employment with the respondent for the notification of injury. Mr Cain must satisfy me that his failure to undertake those actions in that period (i.e. not looking at events after the 6 month period or after he voluntarily left employment) was due to ignorance, mistake, or other reasonable cause (putting aside absence from the State as it is not relevant here).
There are a number of facts, circumstances and motives that I have found relevant.
The first is that Mr Cain, at the time of his injury on 18 February 2023, was able to return to his duties within about half an hour. On his evidence, he rested, and returned to work once he felt “good enough”. He gives evidence that he doesn’t think too much about injuries and just carries on with life. This is consistent with Mr Cain’s lack of attendance on his general practitioner. He first attended for treatment at the emergency department of a hospital. This was not due to some significant event (i.e. a fall or car accident or the like), but due to significant increase in pain and weakness.
Secondly it is relevant that Mr Cain was a carpenter by trade, and not in any way aware of the type of damage a significant blow to his head could cause to his neck. In the immediate aftermath, he was dazed and seeing stars. He felt pain in the neck and arm. As a member of the Commission, having sat on many cases and analysed a fair amount of medical evidence, there is an obvious and apparent insult to the cervical spine that occurred, resulting in potentially radicular symptoms. I am not a doctor but have an awareness of the nature of cervical pathology, to the extent that a lay person can understand such issues. Mr Cain is not in the same position. No doubt he found the symptoms in his arms, including his ongoing weakness, confusing, in circumstances where he had not had an arm injury. There is some medical confusion, from Mr Cain’s perspective, about what exactly was happening. It was not until he finally saw Dr Singh that it became more apparent. He attempted to avoid seeing a surgeon by engaging in physiotherapy, which probably made matters worse.
Thirdly, there are other circumstances relevant for Mr Cain failing to report the injury and failing to make a claim. He was on the worksite by himself, where, by the evidence of Mr Peters this would have been “highly unusual” and in breach of the rules that there must be two employees on any worksite.
Fourthly, Mr Cain was not aware and did not receive any advice as to the existence of workers compensation entitlements until his fall off the scaffolding in subsequent employment. There is, in my view, an apparent difference between the two events. A fall is an obvious injurious incident. Whilst a blow to the head represents a frank injury and an obvious injurious incident, the consequences of that blow were not fully apparent to Mr Cain for some time (until at least July 2023, when he first attended Manning Base Hospital. In fact, his failure to report any work-related injury at that time supports a conclusion that he was ignorant of any connection with his ongoing arm symptoms to something that occurred at work). He was initially dazed with some neck and arm pain, but that pain came and went (as pains often do, particularly in heavy work).
Accordingly, I am satisfied that for the purposes of s 254 of the 1998 Act, special circumstances exist, being ignorance and other reasonable cause, for the failure of Mr Cain to provide a notice of injury.
I am also satisfied, for the purpose of s 261, that the failure of Mr Cain to make a claim within six months was due to ignorance and other reasonable cause.

Injury and substantial contributing factor

The applicant’s case on injury centres on an event that he says occurred on 18 February 2023. There are some difficulties with the applicant proving his case on that basis, most notably being that there were no witnesses to the event that is said to have occurred on that occasion. There are further difficulties in that the applicant did not attend for any medical treatment for a reasonable period after that event, and not until after he ceased employment with the respondent. The above represent challenges but do not necessarily disentitle Mr Cain from compensation. He must prove his case on the balance of probabilities, but he has the onus to prove.
This case requires a series of factual determinations. The first is whether Mr Cain was actually working, as he claims, on 18 February 2023. If he was not at work on that date then his entire case must necessarily fall away.
Mr Cain’s statement describes him installing cladding on a house on 18 February 2023, which was a Saturday. According to Mr Peter’s statement, he would have been at a worksite at Red Head. Ms Gray confirms that “she checked the WHS records and he is the only one that signed in and as it was a Saturday when no supervisors were around”.
Mr Cain has given a consistent history of being at work on 18 February 2023. That history is corroborated by the statement evidence attached to the Reply. I am satisfied that he was at work on that occasion.
The next question is whether an incident occurred on that day, whereby Mr Cain suffered injury to his neck. The Application describes what occurred in the following terms:
“On 18 February 2023, the Applicant was installing cladding on a house when he walked into a metal bar of a scaffold and knocked his head, causing his neck to be hyperextended backwards. The Applicant felt immediate pain in his neck, right arm and shoulder.”
Mr Cain’s statement describes it similarly in terms of a blow to the head, although a slightly different cause of the blow:
“I crouched down to get some material when I knocked my head on a metal bar on a scaffold. My neck was jerked backwards, and I experienced immediate pain in my neck and on the right side of my body”.
The difference here being no reference to walking into a metal bar, but rather crouching down to get some material.
Dr Edger records the following history:
“The symptoms began during the course of his work on 18th February 2023. Luke describes hitting the top of his head (he was wearing a hat) whilst working installing cladding on houses, employed by I and C Homes Pty Ltd. He bent forwards, hitting his head on a bench.”
The history again differs slightly, whereby Mr Cain describes hitting his head on a bench (rather than part of a scaffold).
Dr Hyde Page describes the incident in the following way:
“he jarred his neck when he unknowingly walked into scaffolding while he was wearing a cap and hit his forehead on a couple of occasions.”
This history involves walking into scaffolding.
Dr Powell describes the injury in the following terms:
“On the day in question Mr Cain recalled working on a construction site and reached down underneath a beam in order to retrieve some cladding. He struck his forehead on the beam which forced his head back into a hyperextended position with a whiplash component.”
This history involves reaching down to retrieve some cladding, and a beam (which could be very easily the doctor’s interpretation of the metal bar of a scaffold).
Dr Kamat records:
“He claims that on the day of injury, 18 February 2023, he walked into, and head-butted, a scaffold which resulted in severe hyperextension of his neck”.
Dr Arreza, in the certificate of capacity, records:
“jarred his head back after he reached down for equipment. hit his forehead, hyperextension on his C spine as a result. Immediately developed radiating pain from neck to right arm with burning and tingling pain.”
There is a general degree of consistency among the reported histories, with some specific aspects consistent across all. All histories record the applicant hitting his head on something solid, and the medical causation opinions all record a hyperextension/whiplash component to the injury. Where the histories differ is in what Mr Cain was doing at the time of the blow to his head (sometimes walking, sometimes reaching down) and what he struck (a beam, part of a scaffold, or a bench).
I view these inconsistencies in context as largely minor. There is a clear history of something occurring that could involve an injurious event – Mr Cain struck his head with significant force, causing damage to his neck.
Mr Cain also reports his previous spinal injury in the statement he gave on 30 November 2023, in respect of the injury he suffered to his back when he fell from scaffolding. He states:
“When I commenced with the employer, I was suffering from a spinal injury which was a result of an accident 12 months ago. The injury had been well managed but did flare up in early August. I had presented to hospital in early August as the pain would go away and come back, an MRI and CT scan was completed and there was found to be 4 bulging discs in 3, 4,5 & 6 in my neck as well as a pinched nerve. I had received a referral to see o spine specialist Dr Bhishim Singh on 17/11/2023.”
There is a slight discrepancy in the date of the spinal injury in an accident, which at the time of statement would have been November 2022. The rest of the history remains the same. I take it that Mr Cain was using a shorthand of roughly 12 months, rather than a precise date.
There are other aspects of this case that require consideration, however. One of those is the lack of any reporting of injury, complaint, or attendance on medical professionals. I have dealt with the notice of injury issue above, but Mr Cain’s lack of report of injury is also relevant to determining whether he in fact suffered injury on 18 February 2023 as alleged.

As the respondent points out, a significant period of time elapsed before anything occurred or anyone was notified of anything. From the statement evidence (excluding the hearsay components, where the authors refer to messages that are not before me and third-party conversations), it appears that Mr Cain had no issues with completing his normal duties until his cessation of employment with the respondent, for unrelated reasons.
Dr Edger takes a relevant history in that regard:
“He didn’t say much, trying to avoid a workplace injury on his record, and the pain initially settled, but them began to come and go for a while, with the recurrences being more frequent, severe, and lasting longer, and then came back and didn’t go.”
Dr Powell records a similar history of pain settling, with regular flares in symptoms over the next few months without any specific precipitating incident.
It was really only until 24 July 2023 that the symptoms become significant enough for Mr Cain to seek any kind of treatment. It was on this occasion that he attended Manning Base Hospital. The intake details on that occasion record the following:
“Triage Nurse Notes: Pt walked into ED w pain from R) side fo neck radiating down to hand increased over the last few days, medical hx of same. NKDA. Wt. 85kgs. O/E pt appears pink & well perfused, alert & orientated. HR 107bpm, 02 sats 98%RA, T 36. Pt. struggling w work today, unable to lift hammer. Reduced strength R) hand. Full ROM to R) shoulder.”
Unfortunately for Mr Cain, he did not give any history to the hospital of his work accident in February (or if he did, it was not recorded). In the absence of that history, the primary diagnosis given was “cervical arthritis”. The respondent submits that something happened in July 2023, but that is entirely a degenerative issue and to attribute it to an event in February 2023 is far-fetched.
I am, however, cognisant of the caution that one should take with clinical records, as submitted by the applicant (see Nominal Defendant v Clancy [2007] NSWCA 349, Davis v Council of the City of Wagga Wagga [2004] NSWCA 34). This is particularly enhanced with attendances on an emergency department. Mr Cain explains that he didn’t go to doctors and did not think much of his injuries, but that on 24 July 2023 the “pain became too much”. In the context of having coped for a period with his symptoms, it makes sense that he may not have reported a specific incident that occurred in February to the intake team at the hospital.
I do not accept the respondent’s submission that what occurred in July 2023 was purely a degenerative issue. That does not appear in any of the medical opinions. I prefer Mr Cain’s explanation that he had been coping with his symptoms until he was no longer able to cope until July 2023.
There remains the issue of the lack of reporting of any work connection after that occasion, however. Dr Singh, who provided some treatment for Mr Cain (including recommending, although not performing, the surgery he ultimately had), takes no history of anything occurring at work. He describes increasing weakness in his arm but does not connect it to work.
Mr Cain then attended on Manning Base Hospital again after his fall, injuring his lower back. It is unsurprising that no mention was made of his neck on that occasion. On 7 February 2024, his symptoms were worsening, and he attended emergency again because he was “unable to cope with pain”. On that occasion, it is recorded that he “Commenced with RUL symptoms in October”, but that must be considered to be an error in the context of the other medical information, including the notes of the other attendances at the hospital.
There are also some clinical notes that must be considered. Dr Arreza first records neck and shoulder pain on 2 August 2023. On 14 November 2023, following Mr Cain’s fall, Dr Arreza specifically records “nil antecedent injury”. On 15 February 2024, Dr Arreza saw Mr Cain for his work-related back injury, and records “not related re neck injury” and some symptoms in his neck and arm.
The note of 14 March 2024 really explains the problem Mr Cain faces, and why this matter has been disputed. Dr Arreza records that Mr Cain told him it happened at work a while back “but I don’t have evidence to this claim unfortunately as I only saw in August 2023 and he did not mention the injury happened at work”. He goes on to again use “unfortunately” when he records “he also unfortunately did not mention it in MBH ED when he consulted on 24 July 2023”.
“Unfortunately” is the repeated and correct word. The unfortunate failure of Mr Cain to report his neck injury to his treating doctor until March 2024 and at all in his attendances on Manning Base Hospital has ultimately led to the insurer disputing his claim and the necessity of this determination.
Mr Cain’s misfortunate does not necessarily mean that his claim must be defeated. As I emphasised at the start, I must determine this case on the balance of probabilities. Whilst there is an element of reconstruction to the applicant’s case, this is necessitated by what appears to have been quite an insidious injury, with effects that were not immediately apparent to Mr Cain. Having considered the histories Mr Cain gave, I take him to be a credible person. This did not strike me as a reconstruction in an attempt to game the system to obtain a compensatory benefit. It struck me as a medical construction, in the context of an event that did not initially seem to be of great consequence, that over time became more and more significant to the applicant.
There is also the intervening incident where Mr Cain fell from some scaffolding. The respondent submits that this is causative of the neck symptoms. I agree with the applicant’s submission that Dr Hyde Page’s opinion does not arise to one of a novus actus. He suggests that it was an aggravating incident but not a new injury.
The respondent’s submission on a novus actus also, in part, relies on the report of Dr Singh of 6 November 2023. This is two days before he fell. In that report, Dr Singh records that Mr Cain had been having neck and arm pain with pins and needles “which have now improved completely”. However, he goes on to record:
“While he does not have any pain in the arm and the hands anymore, and the pins and needles have disappeared, he is left with weakness and wasting of the right upper limb.
Examination is positive for wasting of the biceps and triceps and the forearm muscles. There is certainly weakness of the biceps and the triceps on the right side, and he tells me that he has difficulty holding a nail gun above his head.”
I do not take this as an opinion that Mr Cain’s injury had resolved just days before he fell from the ladder, which is what the respondent tries to make of this opinion. At the time of examination, Mr Cain’s pain and pins and needles symptoms were not present. Given the previous nature of his neck injury, which has over time waxed and waned, this is not inconsistent. Importantly, at the time of that examination Mr Cain did have some symptoms including weakness and wasting. In those circumstances it cannot be said that the neck injury with the respondent had resolved prior to the fall, creating a novus actus (or that there was no neck injury with the respondent at all, and the fall was the injurious event leading to the surgery). The clinical record of that date supports the ongoing issues Mr Cain presented with before Dr Singh, even if his pain was not his major concern.
Mr Cain must prove his case on the balance of probabilities. Whilst there are some minor inconsistencies in the description of the mechanism of injury, and there has been a delay in connecting the symptoms in his neck and arms to the injurious event, I am satisfied that he has proved his case. He was at work on 18 February 2023. He hit his head, causing a hyperextension/whiplash injury. That injury was intermittently symptomatic until July 2024, when the pain became too much for Mr Cain to handle. The injury required ongoing treatment until eventually he required surgery. The incident on 8 November 2023 did not break the causal chain.
Accordingly, I am satisfied that Mr Cain suffered an injury in the course of employment on 18 February 2023, to which employment was a substantial contributing factor. The proceedings in this concern a claim for weekly compensation and lump sum compensation.
The weekly compensation claim is from 20 September 2024 to date and continuing. No dispute was raised concerning Mr Cain’s capacity from that date, nor his PIAWE. I will make an award of weekly payments and remit the matter for referral to a Medical Assessor for an assessment of permanent impairment.
However, given the quantification of weekly payments was not addressed by the parties (where the overwhelming focus was on the liability issue determined), and in the context of Mr Cain suffering another work-related injury, I will give the parties liberty to apply in respect of that issue.

[2025] NSWPIC 342

16 July 2025