Car v Vanguarde Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	CAR v Vanguarde Pty Ltd & Ors [2024] NSWPIC 214
APPLICANT:	CAR
FIRST RESPONDENT:	Vanguarde Pty Ltd
SECOND RESPONDENT:	BME Group Pty Ltd
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	29 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits and medical expenses following alleged injury to the cervical spine arising out of or in the course of his employment with the respondents; the injury with the first respondent was deemed to have occurred on 1 December 2017 and the injury with the second respondent was deemed to have occurred on 20 November 2018; respondents disputed injury; applicant alleged pain and stiffness in the neck because of his work conditions but there was no records of any report or complaint to treating doctors until February 2021; Held – applicant failed to discharge the onus of proof; award in favour of the respondents.
DETERMINATIONS MADE:	1. Award in favour of the first and second respondents.

STATEMENT OF REASONS

BACKGROUND

CAR (the applicant) was employed by Vanguarde Pty Ltd (the first respondent) as a senior property manager from about 17 June 2017 to 1 December 2017.
The applicant alleges that in the course of his employment with the first respondent, he sustained an injury to his cervical spine, with symptoms radiating into his upper extremities, such injury being an aggravation, acceleration, exacerbation and deterioration of a pre-existing degenerative disease in the cervical spine as a result of having to work prolonged hours sitting at a desk using a mouse and keyboard with ergonomically poor work stations. The claimed deemed date of this injury was 1 December 2017.
In March 2018 the applicant commenced employment with BME Group Pty Ltd (the second respondent). The applicant alleged that he sustained an injury to his cervical spine with symptoms radiating to his upper extremities, such injury being an aggravation, acceleration, exacerbation and deterioration of a pre-existing degenerative disc disease as a result performing similar duties to those performed in his employment with the first respondent, such duties requiring excessive use of a keyboard, mouse and telephone. The claimed deemed date of this injury was 20 November 2018.
The applicant made a claim against the first respondent on 4 March 2020 in respect of an unspecified injury of the left wrist, hand and fingers, and unspecified injury of the right wrist, hand and fingers. In the claim form dated 10 March 2020 the applicant appeared to identify the injury as fibromyalgia and rheumatism. On 24 May 2021 the applicant sought a review of the insurer’s position on liability, relying on the report of Dr New dated 14 May 2021 in which Dr New made a diagnosis of radicular pain bilaterally in the C7 nerve root distribution.
The applicant made a claim against the second respondent on 20 February 2023 in respect of injury of the neck, bilateral shoulders, right elbow, bilateral wrists and low back with bilateral leg pain.
The applicant is claiming for weekly benefits and medical treatment including treatment proposed by Dr Peter Khong, neurosurgeon, in his report of 29 April 2021, in relation to a C5/6 and C6/7 anterior cervical discectomy and fusion, as a result of the exacerbation of pre-existing existing degenerative changes as a result of his work.
The respondents disputed liability for the claim for weekly benefits, past medical expenses and for the proposed surgery to the cervical spine.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) did the applicant sustain an injury to his cervical spine that arose out of or in the course of his employment with the respondents pursuant to s 4 of the Workers Compensation Act 1987 (1987 Act)?
(b) Whether the applicant’s employment with the respondents was a main contributing factor to the injury to his cervical spine pursuant to s 4(b)(ii) of the 1987 Act?
(c) Did the applicant give notice of injury in accordance with s 254 of the Workplace Injury Management and Workers Compensation Act 1998 (the1998 Act)?
(d)    Did the applicant make a claim for compensation in respect of the injury within the time prescribed by s 261 of the 1998 Act?
(e)    Was there an incapacity relating to the workplace injury and if so, what was the entitlement to weekly compensation?
(f)    Were the applicant’s medical expenses including the surgery proposed by Dr Khong to the cervical spine reasonably necessary pursuant to s 60 of the 1987 Act?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conciliation conference and arbitration on 4 April 2024. The applicant was represented by Mr Greg Horan, who was instructed by Ms Jessica Grant-Nilon of Turner Freeman Lawyers. The respondent was represented by Mr John Gaitanis, who was instructed by Mr Gary Forster of Bartier Perry Lawyers. Mr Matthew Massih from the insurer also attended the conciliation conference and arbitration.
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.

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 (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the applicant and dated 15 March 2024, and
(d)    Amended ARD (formal parts only) dated 15 March 2024.
The respondent objected to the admission of the report of Dr New and Dr Singh under Regulation 44 of the Workers Compensation Regulation 2016 and requested that the applicant elect one of those reports as the report to be relied on in these proceedings. The applicant elected to rely on the report of Dr Singh and only relied upon the report of Dr New in so far as it was relevant to the issue of delay in the giving notice of injury and the making of this claim. The respondent had no objection to the matter proceeding on that basis.

Oral evidence

To the extent that it was logically probative and relevant to the facts and issues in dispute, the following evidence was taken into account in making this determination:
(a) sworn evidence of the applicant, CAR.

Submissions.

All parties made oral submissions at the hearing on 4 March 2024.
I do not propose to set out all of the respondents’ submissions in full. However, I note that the respondents submitted that there was no injury simpliciter that occurred during employment with either respondent. The respondents submitted that the most plausible explanation was that when the applicant realised in March 2021 that he had pathology in the cervical spine, he attempted to attribute that pathology to an aggravation to his neck caused by his work conditions in 2017 with the first respondent. The respondent noted that complaints concerning his neck were only made after his consultation with Dr Lim in March 2021 apart from a reference to some swelling in late 2019.
Mr Gaitanis submitted the applicant’s evidence has many difficulties, exaggerations and untruths and that his evidence should not be accepted. He submitted that there were issues of credit and that some caution needs to be exercised in accepting the applicant’s evidence. He submitted that where a witness has lied then, in accordance with the principles set out in Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117(Ferreira), the balance of that evidence calls for careful assessment.
I do not propose to set out all of the applicant’s submissions in full. However, I noted that the applicant submitted that I should make an award in favour of the second respondent. The applicant argued that the medical opinions of Dr Lim, Dr Khong, Dr Singh and Dr Lee were prefaced on assumed facts which involved a six month period of work involving a lot of computer work with an unsatisfactory key board, prolonged use of the mouse and holding the phone between the shoulder and neck. Mr Horan submitted that all the doctors expressed the opinion that such work activities were capable of aggravating degenerative disc disease.
The applicant submitted that it was only when he first saw Dr Lim in February 2021 that a diagnosis of cervical spine strain was made due to use of a keyboard and mouse, which meant that he could not have been diagnosed with a degenerative condition of the cervical spine and then sought to attribute it to his work with the first respondent. The applicant also referred to a finding by Dr Baume in September 2019 of intermittent erythema and swelling in the hands sometimes associated with paraesthesia and submitted that numbness in the right middle finger is suggestive of C7 compression. The applicant submitted that his other medical problems including depression, fibromyalgia and seronegative arthritis had caused problems and delay in the diagnosis of the cervical spine condition.

FINDINGS AND REASONS

At the commencement of the arbitration, the parties agreed that the pre-injury average weekly earnings (PIAWE) were as set out in the ARD. The respondents conceded that the surgery proposed by Dr Khong was reasonably necessary treatment for the applicant’s cervical spine condition but disputed that it resulted from a work injury. The applicant limited the claim to an injury to the cervical spine, being an aggravation of degenerative cervical spine disc disease with symptoms radiating to the upper extremities. The allegation of an injury to the back was withdrawn.

Evidence of the applicant

In a statement dated 15 September 2021, the applicant stated that he was employed by the first respondent as a full-time senior property manager on 14 June 2017. He stated:
“5.     At the commencement of my role, there were 5 full time employees in Property Management.
6.      I was employed to manage the staff & oversee the department. There were seven staff who were inexperienced and after 6 weeks, five staff were terminated leaving me and another. They were not replaced.
7.      My main duties as a Senior Property Manager included obtaining new businesses, attending 10 landlord enquires, and meetings with tenants to show properties. I would also attend vacate property inspections for bonds and refunds. I was also required to do ingoing reports for new tenants.
8.      I further managed and handled repairs & maintenance. insurance claims, disbursements to landlords, creditors; rent receipting and trust reconciliation.
9.     Some of my work was shared with other staff so whilst it took the workload off me, the five (5) staff that were sacked were making careless mistakes. For example, one staff did not arrange repairs for tenants on time. which lead to a complaint from the tenant. Another staff did not follow up on rental arrears that were required to be done daily, the other staff did not pay creditors on time whilst the other did not balancing the trust account and the like.
10.    My role became very much an administrative role, which meant that I was in the office all day, sitting down and on the phone and at my desk on the computer all day. I was doing this all day for 12 hours. I was always shaking out my right hand as it was sore and dropping it to my side. I complained about this often and on one occasion, my employer paid for a masseuse to come to the office and gave me a neck & shoulder massage. The masseuse even commented at the condition at which I was working. My employer was there, again and did nothing”.
The applicant stated that his computer was old and the cables that attached the computer to the hard drive under the desk came up under the desk to the back of the computer. He said that the cable for the mouse was very short so he had his “right and fingers stretched out all day”. He said that he was clicking the mouse and typing 12 hours per day and was clicking more documents than usual.
The applicant stated that he was working 12 hour days and would be in the office at 8.00am and most days would work without a break until 8.00pm. He then stated that because of the heavy workload he would not leave until after 10.00pm at night and worked six days a week.
The applicant wrote:
“Immediacy [sic] after commencing my role, I noticed my body in particular my neck, back, and hands were aching and in pain. I initially assumed it was because I was mentally exhausted every day due to the long work hours but the pain persisted and continues to date”.
The applicant stated that there was no receptionist so he was answering the phones all day. He stated that he would answer the phone by resting it on his left shoulder in order to keep his hands free and keep on working. He wrote: “This action made my neck turn for long hours and durations and I would always feel stiff and sore. There were no headsets provided to us. This caused a strain to my neck…”
The applicant stated that he used accounting software that required him to “click the mouse endlessly”. He said that he sat at his small desk with the wires shorter in length “making me constrained causing both my hands and back to be arching along with the constant phone in my ear.” He said that his neck was strained and he would have headaches all day.
In a statement dated 8 November 2021, the applicant said that he had been under the care of his general practitioner (GP), Dr Ercel Ozser, for over 15 years. He said that since working with the first respondent, not only did he complain to his doctor regarding his major depression and work stress of the long work hours, the pressure of workload that was placed on him but the strain and aches it was causing on his body. He said that when his injury first developed, he was in a state of mind where his previous psychological injury gravely affected him and “masked” the pain to his neck, back, shoulders and radiating pain to his legs.
The applicant wrote:
“Whenever the phones would ring on land line, I would need to attend all calls and would place the phone handset and rest this to between my right ear and right shoulder causing an ongoing strain to my neck. I would feel an immediate pull but would carry on working…I would constantly feel pain in my back and shoulders.”
The applicant stated that he would immediately feel a strain but carried on work. He said that his body would be in “pain every night and I would brush it off due to 12 hour days”. He stated that he sat at the desk with his right arm stretched across the desk to use the mouse and was clicking with his middle finger “incessantly, all day”. He described getting sore hands and arms and he said that he would stop occasionally to shake them out.
The applicant stated that he did not know that “it would cause an injury”. He says that he just thought he was depressed and tired. The applicant stated that his injury had been undiagnosed and has progressively got worse. He stated that he lodged a claim on 4 March 2020 after being reviewed by a specialist for ongoing symptoms. The applicant noted that under the workers compensation act he had made a claim within three years after sustaining an injury on 1 December 2017. He wrote: “This is as my symptoms were ignored by me due to embarrassment of state of confusion until I sought medical advice” [sic].
The applicant stated that he reported the injury to Dr Ozser “each time I have seen him”, even during his employment with the first respondent. The applicant said that it was not until April 2021, when he sought a second medical opinion from Dr Eric Lim regarding his injuries that he understood “the seriousness and gravity of impact it had on my body and the long term effects of the work ergonomics”.
In a statement dated 24 January 2023, the applicant denied the allegation by Timothy Breckell that he had instigated the situation so that staff were made redundant and the applicant took over their work in order to “steal money and defraud the company without direct overwatch”. The applicant stated that the fraud was found to be untrue. He states that as a result of his work and pressure he was exhausted and making errors whereby Mr Breckell “labelled him as doing fraud.” The applicant wrote: “The matter was taken to court and the Judge found that I did not do anything wrong. I was given a conviction for misappropriation of funds. Nothing was stolen”.
The applicant referred to the photographs of the office provided by Mr Breckell and states that the “photos included are different to when I was there”. The applicant stated that the office premises were currently available for lease and the photos were the same photos as in the advertisement from Laing and Simmons dated 12 December 2022. The applicant stated that Mr Breckell was using the photographs taken in 2022 and passing them off as photographs from 2017.
The applicant stated that Mr Breckell sacked three property management staff to save money and then said he would replace the staff but did nothing. The applicant stated that Mr Breckell diverted the phones of the three staff who were terminated to the applicant as well as their emails.
The applicant stated that Mr Breckell was not in the office very long and would come and go. The applicant stated that he had made a request for a headset but his request was ignored. He stated that there was no cleaner and he and another employee, Vicheka, had to clean the office.
The applicant referred to the statement of Mr Shawn Howell and denied that he had said he could run the whole department on his own. He stated that Mr Howell was only present once or twice a week and came in late and left early. The applicant said that Mr Howell would not know when the applicant started work or left the office.
The applicant stated that the property management software had accounting in it and he used it to pay rates and bills for over 250 properties.
The applicant stated that he never stole from the first respondent and the money was misappropriated because he was tired and making mistakes.
The applicant referred to the statement of Mr Wayne James and stated that he did ask for a new keyboard and mouse. The applicant stated that Mr James was “never in the office”.
The applicant referred to the statement of Ms Jeannette Dangelico and said that she had only worked with him for five weeks. He says she would not know whether he worked a
12-hour day or not and she was not the first to arrive in the office and the last to leave. He said that she was not there when he was working long hours. The applicant noted that she agreed that the applicant’s assistant was only doing the leasing and the applicant was managing the portfolio. He said that his mobile phone did not stop all day. He said that Ms Dangelico did not sit next to him but in a different place in the office.
The applicant stated that on 2 March 2021, he consulted Workers Doctors. He said that he saw Dr Lim and told him about what he was experiencing sharp pains in his neck, arms, and hands. The applicant said that Dr Lim inquired about his background, and he told him about the job where he was overworked. The applicant said that a month after he started there, he began to experience pain as he was undergoing 14 hour working days. The applicant stated that Dr Lim said he might have a problem with his cervical spine and recommended he consult with a neurologist, Dr Peter Khong, to get a diagnosis.
The applicant said that he had relied on his treating doctors to diagnose him, back then. He said that was why this claim had been delayed and because of COVID, confusion and delays because doctors were not working during lockdown. He said he would have gone to a neurosurgeon five years ago if he had known what he knew now. He said that it was not until he got a second opinion that he discovered that his spinal issue was not diagnosed all this time and that it had nothing to do with fibromyalgia.

In a statement dated 23 January 2024, the applicant stated that he commenced employment with the second respondent on 16 April 2018 and was to assist the building manager at Maestri Towers. He stated that he was required to look after the front desk of the building, which entailed regular administrative work and being the point of contact for tenants. He said he was also required to maintain and check the roof top area which contained machinery and equipment.
The applicant wrote:
“6. As part of my daily responsibilities, I undertook thorough building inspections both in the morning and evening before concluding my workday. This involved examining all 25 levels of each building within the complex. My primary focus during these inspections was to identify and address any issues such as leaks, malfunctioning lighting, and the presence of rubbish. Additionally, I systematically inspected stairways to ensure their safety and functionality.
7. The scope of my inspections extended beyond the building interiors. I was also tasked with inspecting various external areas, including rooftops where plant rooms were situated, the underground car park, the garbage room, and four elevators. The objective was to identify any irregularities, or potential hazards that might compromise the overall safety and functionality of the building”.
The applicant stated that he had to leave this employment with the second respondent on 20 November 2018 because he was not coping and was overwhelmed all the time. He stated that his body was aching everywhere and he was always tired, depressed and unable to concentrate.
The applicant stated that on 18 September 2019 he consulted with Dr Robert Baume, rheumatologist, who reviewed his history and current physical state and advised that most of his physical symptoms may be caused by his stress and anxiety. The applicant described consulting Dr Ozser and Dr Browne, rheumatologist during 2020 and stated that both doctors told him that his rheumatological problems and anxiety and depression related to his employment problems. He stated that he was reviewed by Dr Browne on 2 February 2021 and prescribed Prednisolone to assist with inflammation. The applicant said he saw Dr Browne on 1 March 2021 and Dr Browne thought he may have a low-grade inflammatory arthritis. The applicant said that on 10 March 2021 he consulted Dr Ozser, who opined that his hand symptoms might relate to fibromyalgia or another form of arthritis.
The applicant stated that he was not properly diagnosed for his symptoms and therefore there was a significant delay in obtaining medical opinions and treatment. He said he attempted to manage his condition, however, as time went on, the pain and discomfort was not resolving on its own. He stated that he was referred to a new general practitioner, Dr Eric Lim, who sent him for an MRI scan. He said he underwent the MRI scan of the cervical spine on 16 March 2021 which revealed multi-level degenerative disc disease which was worse at C5/6 and C6/7.
The applicant said he was referred to Dr Peter Khong, neurosurgeon. During the consultation with Dr Khong on 23 April 2021 the applicant explained that he had ongoing right arm and hand pain that was causing him to drop things and his whole right hand and fingers were numb, and he had pins and needles in the right middle finger that radiated through his right arm. The applicant said that he also had pain in his neck that was traveling down his left shoulder and left arm, causing pins and needles in his left palm and wrist. The applicant said that Dr Khong recommended surgery in the form of C5/6 and C6/7 anterior cervical discectomy and fusion.
In a statement dated 15 March 2024, the applicant stated that he was dismissed by the first respondent on 1 December 2017. He said that he consulted Dr Ozser on 8 December 2017 in a state of shock and feeling remorse and shame. The applicant stated that he felt overwhelmed about the allegation made against him and did not focus on anything else. He said that the stress worsened when he was charged with misappropriation in October 2018. The applicant stated that he continued to feel pain and restricted movement throughout his body but at the time thought it was due to stress and exhaustion. He said that it did not “enter his mind that there was anything physically wrong” with him.
The applicant stated that he bought a claim regarding his psychological symptoms on 6 November 2018 and the insurer, EML, accepted provisional liability. He said that the insurer then declined liability on 4 April 2019 and the dispute was resolved in the Workers Compensation Commission on 26 November 2019. The applicant said that he was not happy with the outcome but felt overwhelmed and had pressure put on him by his solicitors to accept the offer made by the respondent.
The applicant stated that he noticed that he was experiencing red, swollen and tender hands. and spoke with Dr Ozser about this on 16 August 2019. He said Dr Ozser thought that he may have Raynaud's Phenomenon and referred him to a rheumatologist. He said that Dr Ozer also began adding "Rheumatism/Polyarthralgia and Fibromyalgia" to the certificates of capacity alongside my psychological diagnosis of "Anxiety/ Depression."
The applicant said that he reported pain and neck swelling to Dr Ozser in an appointment on 12 September 2019 and subsequently reported the same symptoms of pain and swelling which he felt were in most of his joints to Dr Ozser on 16 September 2019. He said Dr Ozser referred him to rheumatologist Dr Robert Baume, who he initially saw on 18 September 2019. Dr Baume expressed the view that his symptoms were "almost certainly" related to stress and anxiety.
The applicant stated that he was then referred to another rheumatologist, Dr Christopher Browne, whom he first saw on 2 December 2019. He said that Dr Browne noted both his ongoing psychological injury and symptoms and his ongoing physical symptoms and confirmed that he would review his pathology before making further recommendation.
The applicant stated that he attended Dr Browne on 13 January 2020 where he confirmed that he was unable to diagnose him with inflammatory arthritis. The applicant said that he continued to see Dr Ozser, particularly in regard to his ongoing psychological symptoms and chronic pain.
The applicant stated that he consulted another firm of solicitors, Turner Freeman on 1 April 2020. He said that Turner Freeman recommended that he submit another claim and he completed the claim form online on 4 March 2020.
The applicant said that he then spoke with Dr Ozser on 5 March 2020 and explained that he needed to make another workers compensation claim given his ongoing symptoms. He said that Dr Ozer completed a certificate of capacity, with the diagnosis of "Rheumatism/Polyarthralgia, Fibromyalgia, Anxiety/Depression, triggered by work related stress, harassment at workplace, prolonged stress due to unfair treatment by employer." Dr Ozser noted the date of injury as 16 August 2019.
The applicant stated that in a declinature notice from icare dated 1 April 2020, the claim was disputed on the basis that he had not made the claim within the required time frames. The applicant stated that he did not know that there were time frames but considered that he first reported the injury back in November 2018. He said that this new claim was just clarifying his physical diagnosis given his ongoings symptoms and investigations with Dr Browne.
The applicant stated that he attended Dr Browne on 2 February 2021 where he confirmed he continued to experience widespread pain and altered sensation in his forearms and hands. He said that Dr Browne noted that he had a positive response to taking Prednisolone which suggested that there was some inflammatory basis for his symptoms. He said he attended Dr Browne on 1 March 2021 by telehealth where he reported that his symptoms had deteriorated. Dr Browne arranged for him to undergo nerve conduction studies to rule out carpal tunnel being the cause of ongoing symptoms. The applicant said that Dr Browne considered that his symptoms were explained by the diagnosis of fibromyalgia syndrome and hyperalgesia response to stimuli and considered that he may have low grade inflammatory arthritis.
The applicant stated that he decided to get a second opinion about his physical symptoms and saw Dr Eric Lim from Workers Doctors. He said that in an initial telehealth appointment on 2 March 2021 he explained his symptoms. The applicant stated that following the results of a MRI scan, Dr Lim diagnosed a C6 nerve root compression, with injuries to his spine, shoulders, right elbow and chronic pain due to the nature of his work. The applicant stated that this was the first time he became aware of these conditions and that they were work related. He said that Dr Lim referred him to Dr Peter Khong, neurosurgeon.
The applicant stated that on 23 April 2021 he saw Dr Khong, who diagnosed him with right sided neck and arm pain as a result of the nature of his work, particularly computer work and typing, and holding his neck against telephones for prolonged periods of time at work. The applicant stated that it was during the March 2021 visits to Dr Lim and then to Dr Khong, that he first became aware of such injuries and their relationship to his work duties.
The applicant stated that when he took the dispute concerning his psychological injury to the Commission, he did not realise at the time that the settlement closed his ongoing entitlements. The applicant wrote:
“47. I feel like my claim was complicated by the way I was injured, over time rather than in a particular incident, and that I stopped working with Vanguarde because they sacked me rather than me becoming certified unfit to work. I had not previously made a workers compensation claim and was not sure about the rules regarding notice period and the correct date of injury.
48. I have promptly followed the advice of my solicitors, relying on their expertise where I feel quite vulnerable given the impact that my injuries have on my ability to concentrate. Injury while working at BME Group.”
The applicant stated that he did not realise the causal relationship between his physical injuries and his work generally until he obtained medical advice to that effect from Dr Lim and Dr Khong in March 2021.
The applicant stated that in earlier proceedings in the Commission, his barrister, Mr Greg Young, asked him about his employment with the second respondent and he told Mr Young that his physical symptoms worsened while working with them, to the extent that he needed to stop working completely and had not been able to return to any employment since. He said Mr Young recommended that he make a claim against the second respondent as well as against the first respondent. The applicant stated that this was the first time he had considered that he could make a claim against the second respondent because he always thought that as his symptoms started while working with first respondent, they were the employer liable for his injuries. He said that he had not previously been told that he could make a workers compensation claim against the second respondent.
During cross-examination on 4 April 2024, the applicant gave the following evidence at page 9:
“Q.    Right. So when you submitted your claim form on the 4th of March, 2020 one of the things that was asked in that claim form was what is your injury condition and which part of your body are affected? Yes, do you recall that?
A.    I think so, yes.
Q.     And what you completed in that document was major depression and anxiety diagnosed by Dr ... (not transcribable 00:14:00)..?
A.     Yep.
Q.     And nowhere in that claim form did you say neck injury?
A.     No, because I thought that was because I was just tired, exhausted, drained.
Q.     That was the 4th of March, 2020, yes?
A.     Yeah.”
And at pages 10-17:
“Q.    And it’s the case that on - the beginning of March 2021 which is the 1st of March, 2021 you saw for the first time Dr Lim?
A.     Yeah, probably. It was during Covid.
…..
Q.     Up until 1 March 2021 when you saw Dr Lim you’d never told anyone about your neck?
A.     I’d spoke to Dr Roser [sic] about it. I was very tired or my arms were always sore.
Q.     You never mentioned your neck, did you?
A.     Not specifically.
Q.     No. You just said you were tired?
A.     My body was tired.
Q.     Rightio. That’s all you said?
A.     Yep.
Q.     Until you saw Dr Lim?
A.     Yep.
….
Q.     And the MRI, when was that undertaken, do you know?
A.     That was - when I spoke to Dr Lim he asked me a lot of questions which the other doctors hadn’t. He goes, did you have problems with the neck? I said, yes, I’ve had them all the time. I was holding a phone with my left shoulder and I had to hold it up to my head and I was getting pains there, I was getting headaches all the time. Then he said, has anyone sent you for an MRI? And I said, no, they haven’t. So - and then I asked him what was it for? And he goes, you might have this ...(not transcribable 00:16:39).. and I’d never heard of those cervical spine things, whatever, before in my life.
Q.     Disc degeneration.
A.     Yeah, I’ve never heard of it in my life.
…..
Q.     Yes. Now, when you were giving a history in that statement about your work in Vanguarde you provided evidence in that statement recalling how you felt at the time you were working with Vanguarde, is that right?
A.     Yes.
Q.     And so when you said in your statement the following, when you were sitting down and on the phone and at your desk with the computer you said, ‘I was always shaking out my right hand as it was sore and dropping to my side.’
A.     Yep.
Q.     Do you recall saying that?
A.     That’s correct.
Q.     Is that something you felt when you were with Vanguarde?
A.     I was doing it when I was at Vanguarde.
Q.     Yes. So you were essentially shaking out your right hand all the time?
A.     Yeah, I was going like that. ..(not transcribable 00:18:29)..
Q.     The witness, Member, is gesturing out to his side and he’s shaking his hand - right hand. So that’s something that was apparent to you whilst you were at Vanguarde?
A.     I never thought - like I said before - - -
…..
Q.     You also said in your statement that, ‘The cable for the mouse was short so I had my right fingers stretched out all day.’ Remember saying that?
A.     Yes.
Q.     So you recall that you were stretching out your fingers?
A.     Yes, I do.
Q.     You also said in your statement that - in relation to the keyboard issue you said, ‘I would need to outstretch my arms which caused a strain to my neck and hands.’
A.     Yep.
Q.     So you remember, do you, when you were working with Vanguarde in 2017 that you often had to outstretch your arms which caused a strain to your neck and hands?
A.     Yes.
Q.     You specifically recall pain to your neck?
A.     Yep.
……
Q.     You also said in your statement, ‘Immediately’ - it should be immediately, it says here immediacy, Member, paragraph 21 but it should read, ‘Immediately after commencing my role I noticed my body, in particular my neck, back and hands were aching and in pain.’ Is that correct?
A.     That’s correct.
Q.     You remember experiencing that when you were with Vanguarde in 2017?
A.     Yep.
Q.     And you said you assumed it was because ‘I was mentally exhausted everyday doing the longer hours but the pain persisted and continues to date.’?
A.     That’s correct, yep.
Q.     So you recall having this pain to your neck when you were working with Vanguarde?
A.     Yes.
Q.     Yes. And when you say the pain persisted and continues to date, just tell us about the evolution of that neck pain? Is it the same pain from - is the pain the same now as it was back then when you first ..(not transcribable 00:20:54)..?
A.     It’s different. It’s probably gotten worse, if anything.
Q.     Right. But it was bad at the time?
A.     It was - I used to get headaches.
Q.     Right. But I get that you got headaches.
A.     I felt like when I got home and slept it off it would go away but then when I go back to work the next day it would like - when I started pulling on things again it would start coming back again.
Q.     So this was a recurrent theme?
A.     Yep.
……
Q.     No. And it’s something that you would’ve told the doctor about?
A.     No, not necessarily, I thought it was because I was tired, exhausted.
Q.     But if your neck is so bad - - -
A.     It was - it was wearing off when I would go - not wearing off but when I go home and sleep it off I’d be fine again so that’s why I put it down to being tired. People get headaches everyday, they don’t go and see their doctor every time.
Q.     I’m not talking about the headaches, I’m talking about the neck pain.
A      Well, it’s the same - same - the neck pain - you have neck pain, you don’t go to the doctor every five minutes. You get neck pain - unless it’s a recurring thing everyday, 24 hours, seven days a week.
….
A.     When - when I get to work I’d be fine but once I’d started having to go and type like this and then pulling on the mouse it would start up again.
Q.     And it would last the whole day?
A.     Yep. Because I was - I was non-stop doing it.”
And at page 18:
“Q.    Landline?
A.     Yep. The landline did not stop all day regardless of what he says. I know the truth. The phone did not stop.
Q.     Right. So when people were calling you they were obviously calling you about different things?
A.     Yep.
Q.     And did you - what were you doing at the time when you were talking to them on the phone?
A.     I was working away. There’s - that office was a nightmare, there was so many problems, I don’t even know where to begin.
Q.     So you were multitasking, is that right?
A.     Yes. Yes.
Q.     So you were doing something else whilst you’re on the phone?
A.     I used to be in there from 7 o’clock in the morning till 11 o’clock at night.
Q.     7 o’clock in the morning?
A.     It was early - over eight hours a day, 12 hours a day.”
And at pages 22-24:
“Q.    So just going back, sir, to this issue about the phone on your - on your shoulder - on your shoulder ..(not transcribable 00:27:19).. you said in your statement, ‘This action made my neck turn for long hours and durations and I’d always feel stiff and sore.’ Remember that?
A.     That’s correct.
Q.     And so this is whilst you’re at Vanguarde you felt your neck stiff and sore, is that right?
A.     Yes, that’s correct.
Q.     And you also said, ‘This caused a strain to my neck and back.’?
A.     Yep.
Q.     You also say in your statement that because of the clicking of the mouse endlessly you said, ‘My right wrist would be sore and strained.’?
A.     That’s right because they were always stretched out.
Q.     So you’re saying whilst you were at Vanguarde you recognised that you had pains in your wrists
A.     Yep.
Q.     Yes. You also say in your statement that, ‘Wrists were sore and I was getting a sore neck.’. Is that right:
A.     Yep. Again because I thought I was tired. I was tired, I wasn’t paying attention to it. I had to get the work done.
Q.     Well, this tiredness is in there and there’s feeling pains in particular body parts, isn’t there?
A.     Yeah, but there’s pain that you can - that is bearable. When you have to get the work done you do the work. I just took out a mortgage, I had to pay it, I had to work.
Q.     Well, it doesn’t stop you from telling the doctor about it though, does it?
A.     Not when you don’t ..(not transcribable 00:28:38).. allowed to leave the office to go and have lunch.
….
Q.     Well, you did see the doctor and you had ample opportunity to tell the doctors - - -
A.     Probably did but I don’t - I don’t have that in front of me to remember so - - -
Q.     Right. Well, do you know if you did or didn’t?
A.     I don’t remember.
Q.     And so you also say in your statement that your neck was strained, ‘and I would have headaches all day.’ Remember that?
A.     Yes.
Q.     Yes. You recognised that whilst you were at Vanguarde you not only had problems with your wrists but headaches and also your neck which seemed to be the prominent problem you had, is that right?
A.     That’s correct.
Q.     Yes. And how bad was it when you left Vanguarde? How bad was your neck?
A.     My whole body was sore. There was no specific points that I thought something was wrong with my neck.”

In a “Letter of Apology in Criminal & Driving Cases” the applicant stated that he wrote the letter to express his sincere remorse for his irresponsible actions and “these actions would have not had happened if my employer had not failed in his duty of care.”
The applicant wrote:
“I had seen my doctor about my anxiety & depression back in 2009, but it was at Vanguarde where I broke down. Despite mentioning to my employer that we needed more staff, I was told, that I was not doing enough.
There was no excuse for my actions and I accept full responsibility for what I've done.”
A Worker’s Injury Claim Form dated 10 March 2020 by the applicant described the injury as rheumatism, polyarthralgia/fibromyalgia. The details of injury were: “Working in a toxic environment, long hours constantly typing. Fibromyalgia symptoms take years to develop. The pain I am experiencing now is from my time working at Vanguarde.” The applicant stated that his work hours were from 7.30/8.00am to 8.30pm or longer six days a week.

Evidence of Timothy Breckell

In a statement dated 4 November 2022, Mr Breckwell said that he was the owner and managing director of the respondent company. He stated that the applicant started work for the respondent on 14 June 2017 in their Gloucester Street office as a property manager and was later progressed to Senior Property Manager. He stated that the applicant’s role was to arrange property inspections, manage arrears, attend to trust accounting, update information on REST, organise work orders, liaise with owners and tenants, and resolve owner and tenant issues or problems.
Mr Breckell stated that he was the applicant’s direct manager before a general manager was employed in October 2017. He stated that the applicant did talk to him about the number of extra hours he was working. Mr Breckell said that he advised the applicant that he was only required to work his contractual hours which were 40 hours. He said that the applicant would often come in late and he told him to please come into the office on time. Mr Breckell stated that the applicant was not staying late regularly but he was coming in late regularly.
Mr Breckell wrote:
“CAR coming in late and leaving early did become an issue. To complete his work, he would have to work past his normal closing time. I raised this with CAR on a number of occasions. CAR was only expected to work his contractual hours, which he did, but coming in late put extra pressure on him to stay back. Any ‘overtime’ that he worked he would equal out with coming in late”.
Mr Breckell stated that he spoke to the applicant about hiring more staff to assist him, so that he could focus on specific areas of Property Management and actioned that immediately with recruiters.
Mr Breckell stated that the applicant had sufficient resources to fulfil his role, He agreed that the applicant did mention that he needed more support in his role. Mr Breckell said that in relation to the staff that were terminated, two of the staff were made redundant and a third staff member resigned. He said that the two that were made redundant followed conversations and emails from CAR recommending that the staff members were no longer required as he could do the work of these employees going forward.
Mr Breckell said that he appointed a General Manager in October 2017 to alleviate some of the applicant’s workload regarding the accounts function, and then appointed an Assistant Property Manager/New Business resource to directly assist with the number of properties managed.
In relation to the masseuse attending the office to give the applicant a massage, Mr Breckell stated that this was something nice he did for the team and not based on any other reason.
In relation to the applicant’s complaints about the office, Mr Breckell stated that the office was “superb, it was renovated, and new chairs were provided which he sat on. Every desk had a dedicated draw. The office was very quiet”.
In terms of workload, Mr Breckell stated that only two staff were made redundant and one other resigned. He said that they now had the same number of management staff, that is, a Senior Property Manager along with a Leasing & New Business person and they run the portfolio smoothly without issue.
Mr Breckell stated that in relation to IT equipment, all systems were new and he always upgraded IT. He said that the wires were perfect and all equipment was perfect and new. He stated that they actually had a surplus of keyboards and mouses so if any request to replace a keyboard was made another was in the cupboard to immediately replace. Mr Breckell stated that no requests were ever lodged for replacement equipment. He stated that the applicant saw the office and workstation he would be working in and even chose the desk he wanted.
In relation to the applicant’s statement that most days he would be working without a break until 8.00pm, and would not leave until after 10.:00pm at night, Mr Breckell said that the applicant would come in late and work later to make up his hours. Mr Breckall stated that the applicant was told not to work late several times and to come to work on time. He said that the applicant always went on lunch breaks.
Mr Breckell wrote: “He never worked 12 hour days and never was directed to work 6 day week; his hours were set. What he has said are all lies. He never worked 6 days for 6 months, he hardly ever worked a Saturday at all.”
Mr Breckel stated that the applicant never made a request for headsets. He said that there was an office work account and if he wanted a headset he could have simply requested one and it would have been purchased immediately. Mr Breckell stated that to this day they do not have headsets as the office phone actually does not ring very much daily as people usually email or call teams on mobiles. He said that this has always been so and they are not a super busy office as evidenced by the two property management staff handling the same portfolio and working 8.30am to 5.30pm taking a one hour lunch break every day, and working only five days a week each.
In relation to the applicant stating that he had to use account software and click the mouse “endlessly”, Mr Breckell stated that this was false, and the applicant had no accounting at all to do for the business. He said that Belle Partners did the accounts and Shawn Howell was there one day a week as the office accountant.
Mr Breckell stated that the office was stocked with ergonomic chairs, foot plates, chair lumbar supports and was in outstanding condition. He said that it was renovated and new computers and IT was onsite and always maintained by Project 3 IT. He stated that no other staff complained about their workstations or their equipment or commented about the applicant’s workstation or office equipment, chair, keyboard.
Mr Breckell stated that the applicant did not speak to him about the pain he alleges he was experiencing in his hands, fingers, arms, back or neck. He stated that the applicant did not say anything about the office equipment and work area contributing to his now alleged physical condition.
Mr Breckell stated that there was never any broken equipment and it would have been thrown out and replaced immediately. He said that there was an abundance of chairs and desk space as there was space for eight employees but only had four in that office. Mr Breckell said that he did not recall equipment being replaced during the period that the applicant was working for the respondent but that was in 2017. He said that this office was closed in 2019.
Mr Breckell stated that the statements by the applicant were completely false. He was adamant that the work environment did not cause or contribute in any way to the applicant’s alleged stated physical injury.

Evidence of Shawn Howell

In a statement dated 15 November 2022, Shawn Howell stated that he was the Chief Executive Officer and Principal of Howell & Co, an accounting firm. He said that he worked with the respondent in the Gloucester Street office during the period of the applicant’s employment with the respondent.
Mr Howell stated that when the applicant commenced work with the respondent there were three additional full-time employees in Property Management, one of those left after seven weeks and one left after nine weeks of the applicant commencing, one resigned and one was terminated. He said that the termination was on the request of the applicant who implied they were not capable of doing the job and he would be able to complete the work without them. Mr Howell stated that a general manager was sought and hired while the applicant was employed, as was a property manager to assist CAR.
Mr Howell stated that the office was open plan but during most of the applicant’s period of employment with the respondent, there was only the applicant and one or two other employees in the office at any time. He stated that all desks had drawers for stationery and files and there were other dedicated areas for filing documents.
Mr Howell stated that all IT equipment was kept up to date and there was an external IT company who managed all the hardware requirements. He stated that he was not aware of any IT issues the applicant had in relation to IT hardware.
Mr Howell described the overall condition of the office as “a high standard” and stated that all equipment was updated as required or requested. He said that he attended the office one to two days a week.
Mr Howell stated that on the days he attended the office the applicant would often be late in the mornings and would work past 5.30pm to make up for lost time but if he arrived at the start time of 8.45am, the applicant would leave on or around 5.30pm.He said that he was unaware if the applicant took lunch as the applicant was not always in the office.
Mr Howell stated that he was unaware of a request by the applicant for headphones but thought that headphones were not necessary because of the low volume of phone calls received in the office.
Mr Howell stated that the applicant never used accounting software as he and Bell Partner’s tax agent were the only people with access to that software. Mr Howell stated that the applicant used the property management software to perform his job.
Mr Howell stated that he was never aware that the keyboard and length of the cable to the hard drive were issues and he had never heard the applicant or anyone complain about this.

Evidence of Wayne James

In a statement dated 15 November 2022, Wayne James said that he was employed by Project 3 IT Pty Ltd which was an IT support and consultancy company and he had been associated with the respondent since 2014. He said that he worked with the respondent when the applicant was working in the Gloucester Street office.
Mr James said that he had no knowledge of broken keyboards or mouse being used by staff of the respondent and there was always a surplus of available spare mouse and keyboards. He said that the respondent never refused purchases if requested by staff and computers were replaced regularly. He said that the office was always clean and tidy when he attended it.
Mr James stated that if a staff member had requested a headset, Mr Breckell would have provided it. He stated that he did not recall ever being asked by staff to supply any headsets.
In relation to the cable from the hard drive, Mr James wrote:
“If the cable was plugged into a floor based PC, then the cable would still be plenty long enough to reach the users hand and if a staff member had mentioned that they needed a wireless keyboard and mouse instead, then it would have been purchased without hesitation”.
Mr James stated that in his experience ergonomic equipment would be provided if requested. He said that he did not hear any staff complaints about their workstations or equipment and if a complaint had been made, it would have been fixed or replaced. He stated that the applicant never complained to him about his workstations or the long hours he worked.

Evidence of Jeannette Dangelico

In a statement dated 22 November 2022, Jeanette Dangelico said that she commenced employment with the respondent in October 2017 in the role of general manager and left that employment in February 2018. She confirmed that she was working for the respondent when the applicant was there and said that the applicant was dismissed five weeks after she started in late November 2017. She said that she was the applicant’s manager.
Ms Dangelico stated that the applicant was often out of the office at inspections, Ingoings and Outgoings. She said that she never recalled him complaining about his right hand.
In relation to the applicant’s computer, Ms Dangelico stated that she left the respondent’s employment five years ago and could not recall whether the keyboards and mouse were wireless or not but everything was functional and in working order. She stated that the applicant never worked 12 hour days.
Ms Dangelico described the Gloucester Street office as being in good condition. She said that she was usually the last person to leave the office and that the applicant was “never in a 8am and never left at 10pm.” She said that the applicant never worked Saturdays.
In relation to phone calls, Ms Dangelico said that there was no receptionist but calls were usually answered by the Kent Street office by Peach who was Admin/Sales support and not by the applicant.
Ms Dangelico stated that the applicant was not privy to any accounting software and only privy to REST (for property management) which included a Trust Accounting Module and Agentbox which was used for advertising properties for lease and sale.
Ms Dangelico stated that she did not recall the applicant requesting a headset. She could not recall if there were any headsets in the office. She did not recall the applicant asking for better ergonomic equipment. She stated that there were no issues with the office equipment.
Ms Dangelico stated that she did not ever recall the applicant complaining about pins and needles in his hand and she sat next to him. She said that the applicant did not speak to her about any pain he was experiencing, nor his work area, his office equipment or the hours he worked. She said that if the applicant had spoken to other staff about his workstation, equipment or the hours he was working she would have heard him because the office was open plan.
Ms Dangelico wrote:
“The office equipment available to CAR and the other staff computers, desks, chairs, were all serviceable and fine to use. If equipment was broken or needed to be replaced, it was actioned quickly. I am unsure who would organise replacement items, I was only employed at Vanguarde for a very short time. I don't recall new computer equipment other than the NBN and a new Voip Phone System which I installed in both offices. If any of the staff expressed problems with their equipment, the procedure would be to come to me first, as the General Manager, I would obtain a quote for approval by the Directors. I do not recall equipment being replaced during the time that I was working there other than the phones. I was only employed at Vanguarde for 6 months, computers were not replaced during that time, however they didn't need to be replaced”.
Ms Dangelico described the applicant as difficult and disruptive to work with and referred to his misappropriation of trust account funds.
In a “Letter of Apology in Criminal & Driving Cases” the applicant stated that he wrote the letter to express his sincere remorse for his irresponsible actions and “these actions would have not had happened if my employer had not failed in his duty of care.”
The applicant wrote:
“I had seen my doctor about my anxiety & depression back in 2009, but it was at Vanguarde where I broke down. Despite mentioning to my employer that we needed more staff, I was told, that I was not doing enough.
There was no excuse for my actions and I accept full responsibility for what I've done.”

Medico-legal reports

In a report dated 14 May 2021, Dr Charles New, consultant orthopaedic and spinal surgeon, noted the following history relating to the injury:
“CAR states that he started working with Vanguarde Real Estate in 2014 as a Senior Property Manager working 50 hours per week.
During the course of his employment he states that he began to experience bullying and harassment from the General Manager and developed a diagnosis of depression and anxiety.
He states there were originally seven staff however five staff were terminated, leaving two.
The management was to do with residential real estate. He started developlng pain bilaterally in his hands and wrists, in the C7 nerve root distribution as well as neck pain.
He stated that he had significant difficulties with the keyboard and this exacerbated his arm pain and neck pain. He was under the care of his GP, Dr Ercel Ozser, and was diagnosed with rheumatism, polyarthralgia and fibromyalgia.
…
CAR was terminated from his employment in December 2017 following an accusation of misappropriation of trust fund, but was found innocent and noting there were no Police charges.
His initial diagnosis is cervical spine strain but subsequent investigation confirmed that he had cervical spondylosis and also cervical lordosis and lateral canal stenosis”.
In a report dated 9 May 2022, Dr Bisham Singh, consultant spinal surgeon, noted that the applicant had a history of neck and arm pain “with worsening pins and needles in the right arm which are related to the nature and conditions of his employment with repetitive neck movements and using the phone to the ear with his shoulder”. Dr Singh made a diagnosis of foraminal stenosis and central stenosis at C5-6 and C6-7 with C6 radiculopathy as well as some C7 radiculopathy on the right side.
Dr Singh noted that the applicant had been trialling conservative treatment for quite some time but not had any sustained benefit. He was of the view that without surgical intervention, the prognosis was poor.
Dr Singh expressed the view that on the balance of probabilities, given the history and the level of work that he has been doing as a property manager, employment was the main contributing factor to his current condition. He noted that employment involved repetitive neck and arm movements, poor quality of work furniture, nonergonomic workstation and the fact that he has to answer multiple phone calls while using both hands without the use of a headset.
Dr Singh believed that his employment has caused significant aggravation to any previously asymptomatic degenerative changes of cervical spine.
Dr Singh did not believe that the applicant has the capacity for pre-injury employment for the foreseeable future. He noted that the applicant has not had a significant improvement with conservative treatment and has significant structural pathology in the cervical spine. Dr Singh believed that surgery is reasonably necessary and his employment has materially contributed to the need for this surgery.
Dr Singh noted that he reviewed the proposal by Dr Peter Khong for C5-6 and C6-7 surgery and agreed with Dr Khong that this was reasonably necessary for treatment of the applicant’s injuries.
In a report dated 18 November 2022, Dr Yuk Kai Lee, consultant orthopaedic surgeon, noted that the applicant was a property manager from 1 June 2017 to 1 December 2017, whose job was mainly in the office, meeting clients. He noted that the applicant was on the phone “all day”. Dr Lee reported that the applicant took three months off. Dr Lee noted that the applicant noticed pain, pins, and needles sensation and claimed the workstation was poorly set up as the keyboard and mouse were wired and the cords were not long enough, and he had to hold the phone between his ear and shoulder all the time. The applicant told Dr Lee that he was being treated as having rheumatism and myalgia and did not realise there was injury until March 2020.
Dr Lee noted that Dr Khong proposed a C5 to C7 two level anterior discectomy and fusion.
Dr Lee made a diagnosis of cervical spondylosis, resulting in neck pain and radiating symptoms down both arms. Dr Lee noted that from the applicant’s description, the condition of his workstation was poor. Dr Lee expressed the opinion that the applicant’s work would have aggravated the underlying degeneration which was pre-existing.

Dr Lee was of the view that the proposed surgery, a C5 to C7 two level anterior discectomy and fusion, was appropriate for the applicant’s condition. He considered that the applicant was a “low demand” worker and the likelihood that he could return to work after successful surgery was good.
In a report dated 5 December 2022, Dr Yuk Kai Lee noted that when he saw the applicant on 2 November 2022, the applicant claimed the workstation was poorly set up, the keyboard and mouse were wired, and the cords were not long enough. The applicant had said that he had to hold the phone between his ear and shoulder all the time. Dr Lee stated that the applicant did not claim the equipment was ‘old and crappy’ during the consultation and was concerned about the keyboard and mouse being wired and not being provided with a headset when answering telephone.
Dr Lee referred to the factual investigation report which he noted contained mainly statements from various witnesses but no actual inspection of the workstation that the applicant alleged he was using. Dr Lee wrote:
“The age of the equipment is not important. It is whether the setup is proper that makes the difference. The computer I am typing on now is more than 10 years old. Yes, I upgraded the monitors, and they are placed at proper eye level. I like my 15-year-old keyboard which was more comfortable to type but because it was wired, I changed it to wireless. The inspection of the workstation is crucial in determining the cause of CAR’s injury. The fact he has to use the phone holding it between his ear and shoulder would be an important factor in his injury.
I note in the statements, CAR did not request a headset. He should have requested one if he feels uncomfortable but not requesting it does not mean he did not have problem using the telephone.
CAR was employed as property manager with Vanguarde Real Estate from 01/06/2017 to 01/12/2017… CAR corrected the record that the date of injury should be14/06/2017 which was only 2 weeks after starting work…
Apart from his work condition, there was no history of injury. I would conclude most of his cervical spine problem is due to pre-existing degeneration”.

Report from treating doctors

The clinical notes and records of Dr Ercel Ozser included the following entries:
(a)    in an entry dated 8 December 2017, Dr Ozcer reported work stress. He wrote:
“CAR says he was asked to leave his position after it came to surface that he was accessing trust funds to pay his debts. CAR says he always had intended to return the funds he withdrew and he did so prior to being asked to leave. Describes sense of remorse and shame”.
(b)    In an entry dated 8 October 2018, Dr Ozser noted that the applicant requested a referral to a psychiatrist “his lawyer has picked for him”. He wrote: “CAR has been involved in some legal charges against him for financial fraud he committed during a stressful phase of his life.”
(c)    In an entry dated 12 October 2018, Dr Ozser noted that the applicant presented with increasing anxiety within the context of a number of active stressors including the legal case against him and past traumatic experiences at work.
(d)    In an entry dated 6 November 2018, Dr Ozser noted that the applicant decided to claim Workcover injury relating to his major depression/anxiety. He noted that the applicant felt overwhelmed by the active anxiety and workers compensation process and cannot attend to his job at the moment (works with a different employer).
(e)    In an entry dated 20 November 2018, Dr Ozser noted that the applicant reported persistently low mood and had quit his current job. He noted a recent flare up of depression in the context of ongoing harassment from his old employer who had “bad mouthed him to his current employer” and the notice the applicant received “that he was going to be charged with fraud.”
(f)    In an entry dated 21 January 2019, Dr Ozser noted that the applicant had the court case and “was dismissed on good behaviour.”
(g)    In an entry dated 16 August 2019, Dr Ozser noted the applicant presented with “red/swollen/tender hands” and referred the applicant to a rheumatologist, Dr Christopher Browne.
(h)    In an entry dated 16 September 2019, Dr Ozser noted:
“CAR’s rheumatological symptoms are getting worse now has pain and swelling in almost all joints – hands, feet, ankles, wrist and knees worse in morning systemically well had rheumatologist review in 2 days.”
(i)    In an entry dated 3 October 2019, Dr Ozser noted a recurrence of hand and feet swelling.
(j)    In an entry dated 18 October 2019, Dr Ozser noted “intermittent hand/feet swelling and polyarthralgia continues”. He referred the applicant to a new rheumatologist.
(k)    In an entry dated 2 December 2019, Dr Ozser noted that the applicant was offered 20,000 in damages to settle his case but refused as he felt this was unfair.
(l)    In an entry dated 23 December 2019, Dr Ozser noted that the applicant reported frustration with the workers compensation process and has a new solicitor.
(m)     In an entry dated 16 January 2020, Dr Ozser noted that the applicant continued to struggle. He noted: “Angry and disappointed about the way he was treated at his previous employment and how he was not fairly treated by Workcover and the legal proceedings that followed.”
(n)    In an entry dated 23 January 2020, Dr Ozser noted that the applicant presented with increased anxiety and was disputing the criminal charges against him “re unlawful possession of funds”, applying for a disability pension and trying to access his superannuation.
(o)    In an entry dated 5 March 2020, Dr Ozser noted that the applicant wanted to start a new Workcover claim based on his current symptoms. He noted he had spoken to rheumatologist, Dr Chris Browne, who feels the current working diagnosis is fibromyalgia and that the applicant’s rheumatological symptoms and anxiety/depression symptoms relate to his employment problems. He noted that Dr Browne certified the applicant as having permanent incapacity for work.
(p)    On 26 March 2020, Dr Ozser noted that the applicant said that his solicitor had settled for “20K the initial workcover claim without his consent”. The applicant said that his concentration was affected on that day and “could not dispute the solicitor who basically forced him to accept the decision and settle for 20K.”
(q)    In an entry dated 1 April 2020, Dr Ozser noted that the applicant was experiencing pain all over – feet, legs, neck, all joints, hands.
(r)    In an entry dated 3 April 2020, Dr Ozser noted that the applicant was distressed as Workcover unfairly declined his case on the basis they had not received the reports they requested.
(s)    In an entry dated 2 July 2020, Dr Ozser noted that the applicant reported ongoing chronic pain in his feet and hands and intermittent hand and feet swelling.
(t)    In an entry dated 11 August 2020, Dr Ozser noted that the applicant had another hearing in a WC case and his hand arthritis was doing better.
(u)    In an entry dated 2 November 2020, Dr Ozser noted the applicant reported ongoing anxiety and intermittent hand/feet arthralgias and swelling. He recommended review by a rheumatologist.
(v)    In an entry dated 7 December 2020, Dr Ozser noted that the applicant reported active symptoms, aches and pains in his feet and ankles.
(w)   In an entry dated 12 December 2020, Dr Ozser noted that fibromyalgia pain continued “R arm/hand/ feet/ankle pain intermittently also describes swelling in joints at times.”
(x)    In an entry dated 29 January 2021, Dr Ozser noted that the applicant was going to take further action against Workcover in relation to his fibromyalgia.
(y)    In an entry dated 11 February 2021, Dr Ozser noted that applicant reported “R arm pain fingertips to elbow. Also paraesthesia involving all R hand fingers middle finger mostly but all other fingers also. Not happy with fibromyalgia diagnosis he wants a second opinion”. Dr Ozser referred him for nerve conduction studies.
(z)    In an entry dated 20 April 2021. Dr Ozser noted that the applicant said he had a C spine MRI and is seeing a neurosurgeon to investigate further the cause of his bilateral hand pains.
(aa)    In an entry dated 18 June 2021, Dr Ozser noted “Actiive Depression/Anxiety/Fibromyalgia/Seronegative arthritis”.
(bb)    In an entry dated 31 August 2021, Dr Ozser noted that the applicant continued to struggle with polyarthralgia – “swollen stiff R hand and to a lesser degree L hand.” He noted there had been a significant decline in overall function. He noted “R shoulder pain, R neck pain” and has been seeing a rheumatologist who now feels CAR has seronegative arthritis and fibromyalgia as two separate diagnoses.
In a report dated 21 March 2020, Dr Ozser noted that the applicant was claiming a new Workcover injury based on exacerbation of a pre-existing condition, namely depression and anxiety as well as new diagnosis of work-related fibromyalgia and rheumatism. Dr Ozser noted that since 22 November 2019, he observed the applicant become more and more unwell, anxious, depressed, helpless and hopeless. On top of the exacerbation of psychological injuries, the applicant had also developed rheumatism and fibromyalgia.
Dr Ozser noted that his rheumatologist Dr Chris Brown agreed that his fibromyalgia and rheumatism directly related to the exacerbation of his anxiety and depression. Dr Ozser considered that the events of 22 November 2019 caused further and severe exacerbation of his pre-existing workplace related injury. Dr Ozser noted that it was in this context that the applicant was initiating a new Workcover Claim.
On examination, Dr Ozser noted that there was intermittently swollen and red fingers (all 10 digits involved).
In a report dated 29 April 2021, Dr Ozser noted that the applicant had multiple presentations with musculoskeletal pain symptoms starting around August 2019. He wrote:
“…on this date he gave 3 week history of bilateral hand swelling, pain, erythema and paraesthesia. He also reported similar but somewhat milder symptoms in his feet. On that day I noted that his hands were clinically swollen and I referred him to rheumatologist Dr Chris Browne. He was subsequently diagnosed with Fibromyalgia and Seronegative Arthritis….
During the year 2019 and 2020, I saw CAR multiple times. The majority of his presentations related to the Fibromyalgia and Seronegative Arthritis and Major Depression. His hand and feet pain remained active during this period and was reported to be severe.”
Dr Ozser wrote:
“CAR first reported hand paraesthesia on 16/8/2019. Following this presentation, Fibromyalgia diagnosis then seronegative arthritis diagnosis was made. However, neither of these conditions explain the paraesthesia. He later presented on 11/2/2021 with R arm/hand pain and paraesthesia and went on to having further investigations including nerve conduction study and Cervical Spine Imaging which apparently showed degenerative changes explaining the R upper limb symptoms. The neck imaging was requested by a different doctor and the results are not available to me”.
Dr Ozser noted that the applicant did not have any pre-existing issues with neck pain, cervical spine or radiculopathy prior to 3 January 2018. He considered that the applicant had a poor prognosis. He wrote:
“His Fibromyalgia, Seronegative Arthritis and Depression have proven to be treatment resistant. He is likely to continue having both short and long term functional disability due to these conditions. I am not able to comment on his prognosis with regards to his neck pain with radiculopathy as this condition has been diagnosed and managed outside my care”.
In a report dated 18 September 2019, Dr Robert Baume, treating rheumatologist, noted that over the last two to three weeks the applicant had intermittent erythema and swelling of his hands and feet sometimes associated with paraesthesia. Dr Baume considered that stress and anxiety were causing most of the symptoms.
In a report dated 2 December 2019, Dr Christopher Browne, treating rheumatologist, noted that the applicant had been very stressed and unable to work this year as well as having a workers compensation claim. Dr Browne noted that the applicant had some pain and swelling of his hands about six months ago which had continued and he felt pain in his feet. He noted that the applicant had been investigated for inflammatory arthritis with no positive outcome.
In a report dated 13 January 2020, Dr Browne noted that the applicant had a sensation of swelling and pain involving his wrists and hands but there had not been any objective synovitis.
In a report dated 17 December 2020, Dr Browne made a diagnosis of major depression and fibromyalgia. He noted that the applicant first experienced symptoms with pain and perceived swelling of his hands in June 2019 and also had discomfort of his feet. He noted that the diagnosis was made after comprehensive investigations.
In a report dated 1 March 2021, Dr Browne noted that there had been significant improvement of hand symptoms, but the applicant experiences altered sensation of his right hand and forearm. He noted that the applicant would be having nerve conduction studies.
In a report dated 9 November 2021, Dr Browne noted that the applicant’s inflammatory arthritis first commenced in June 2019 with the diagnosis confirmed in July 2020.
In a report dated 17 January 2022, Dr Browne noted that the applicant ‘s inflammatory arthritis had been active at the hands with involvement mainly with the proximal interphalangeal (PIP) finger joints. Dr Browne noted that the applicant continued to have right sided cervical pain and probable radiculopathy involving C6 or C7 nerve roots.
The clinical neurophysiology report of Dr John O’Neill dated 9 April 2021 concluded that the study in relation to the right ulnar nerve and right median nerve was normal.
In a report dated 2 March 2021, Dr Eric Lim, treating general practitioner, noted that the applicant initially presented for consultation on 17 February 2021 concerning an injury to the neck, shoulder and wrist. Dr Lim noted that the applicant was a senior property manager at the time of his injury. Dr Lim made a diagnosis of cervical spine strain, bilateral shoulder strain, right elbow strain, bilateral wrist strain, and chronic pain with psychosocial barriers. Under “Past Medical History” he noted “General Practitioner: Dr Ercel Ozser - Sleep apnoea”. He noted that Major Depression (2018) was a pre-existing issue.
Under “History” Dr Lim wrote:
“On Friday, 1 December 2017 CAR reported that whilst at work he suffered a neck, shoulder and wrist injuries due to prolonged use of a keyboard and mouse at work. He started at the company in June 2017 and began experiencing pain in his hand in July. He was working 10·12 hours a day, 6 days a week. His job role involved prolonged sitting at a desk using a mouse and keyboard. The ergonomics were suboptimal, and the chair had a broken wheel…. He continued working until 01/12/2017 when he was terminated, for alleged mistakes with financial coding.
In March 2018, He found another job as building manager. His last day of work was 14/11/2018 as he could no longer cope at work, due to his neck/arm/hand symptoms”.
Dr Lim noted that the applicant said that he was not provided with any support and became both mentally and physically fatigued.
Dr Lim wrote:
“From my understanding of the injured worker's role as a Senior Property Manager, it would be reasonable to conclude that the mechanism of injury was the direct result of performing those specified tasks. The history given is consistent with employment being the main contributing factor to the injury”.
Under “Symptomatology” Dr Lim noted:
“Headaches, neck pain travelling down bilateral shoulders, R) arm pain, pins and needles in R) arm, R) elbow pain, R) wrist pain, R) hand pain, pins and needles in R) hand, depressed, anxious, panic attacks, stressed, low mood, low energy, trouble sleeping, lethargic, exhausted.”
Dr Lim proposed that the management plan include modified activities, pain management and use of simple analgesics. He referred the applicant to a physiotherapist, psychologist and orthopaedic surgeon. He concluded that the applicant was totally unable to work. He recommended the applicant have an urgent MRI of the cervical spine as there was ongoing neck pain and pain in the “C6 nerve root compression”.
In a referral to Dr Khong dated 1 April 2021, Dr Lim noted that the applicant has neck pain with right arm radiation C6 nerve root distribution, consistent with C5-7stenosis touching the cord.
In a report dated 23 April 2021, Dr Peter Khong, treating neurosurgeon and spine surgeon, noted that he saw the applicant on 23 April 2021. Dr Khong noted that in July 2017, the applicant was doing a lot of computer work and said that the keyboard was broken and flat, a chair wheel was broken and he was also holding phone between his neck and left shoulder. Dr Khong noted that the applicant started to experience pain and numbness in the right arm and hand. He noted that the applicant took three months off work and then got another job from April to November 2018, but kept getting pain in his right hand. Dr Khong noted that the right arm and hand have continued to get worse. The applicant reported ongoing pain anterior rlght arm and forearm, dropping things with the right arm, numbness in the whole of the right arm and fingers, pins and needles right middle finger radiating up dorsum of right arm, midline lower cervical neck pain, mild left trapezius pain down left arm and pins and needles in left palm to wrist.
On examination, Dr Khong reported normal gait, normal tandem gait and negative Rornberg's. He wrote:
“Neurological examination of the upper limbs was as follows. Normal tone bilaterally. Power was 5/5 ln all muscle groups bilaterally. Reflexes were++ In the biceps bilaterally, -in the triceps bilaterally with negative Hoffman's bilaterally. Sensation was more sensitive in the right upper limb”.
Dr Khong reported that the MRI of the cervical spine on 16 March 2021 showed:
“Multi-level degenerative disc disease worse at C5/6 and C6/7. No cord compression. Foramlnal stenosis, right C4/5. moderate bilateral C5/6 and severe right C6/7”.
Dr Khong formed the view that the applicant presented with right sided neck and arm pain after several months of computer work and typing with a poor posture and holding his neck against a phone for prolonged periods. Dr Khong considered that this has persisted and progressively become worse over the past few years. He noted that the MRI demonstrated multi-level degenerative changes.
Dr Khong concluded that the applicant had experienced an exacerbation of pre-existing degenerative changes as a result of his work, and this has not settled. He noted that the foraminal stenosis appears worst on the right at C6/7 and the description of numbness in the right middle finger was suggestive of C7 compression. He organised for the appellant to have a right C7 perineural injection and thought that the applicant might require an anterior cervical discectomy and fusion if his symptoms persist or worsen.
In a report dated 15 October 2021, Dr Khong referred to reviewing the applicant on 18 June 21 and 18 August 2021 and noted that pain had worsened in the past few weeks. He wrote:
“CAR continues to complain of right sided arm pain. A C6 injection helped a lot with his pain. The pain radiates to the middle finger which is more suggestive of C7, though a C7 injection only helped mildly. The request for a C5/6 and C6/7 anterior cervical discectomy and fusion was denied and is awaiting appeal. I will review him in a few months to follow his progress”.
In a report dated 15 June 2023, Dr Khong noted that the applicant reports some symptomatic improvement in his neck pain and right arm pain. Dr Khong wrote:” “I explained to him if his symptoms are tolerable we can hold off on the previously proposed C5/6 and C6/7 ACDF. … He will let me know if his neck and arm pain worsens”.

In a report dated 25 September 2023, Dr Khong noted that he had examined the applicant on 23 September 2023. Dr Khong made a diagnosis of neck pain and right arm pain due to acceleration and exacerbation of degenerative changes in the cervical spine, mainly at C5/6 and C6/7 where there is left sided C5/6 foraminal stenosis causing left C6 compression and bilateral C6/7 foraminal stenosis causing bilateral C7 compression. He reported that bone scan demonstrates increased uptake at C6/7.
Dr Khong considered that the prognosis was poor without surgery as the applicant has had persistent symptoms for over six years. He was asked what the connection was between the applicant's employment with the second respondent and the injury or pathology diagnosed and stated that the applicant’s work likely caused both an acceleration and exacerbation of the degenerative changes in his cervical spine. Dr Khong referred to long hours doing computer work with poor ergonomics having directly contributed to the development of his pain and there being no pain before his employment with the BME Group.

Section 254 and s 261 Issues

In considering the threshold issues of giving notice of the May/June 2005 injury within the time prescribed by s 254 and the making of a claim within the time prescribed by s 261, I note the approach preferred by Deputy President Fleming in Way v Newcastle City Council (2004) NSW WCCPD17.
This approach was considered to be entirely appropriate by Moore ADP in Inghams Enterprises Pty Ltd v Auddino (2007) NSWWCCPD 228.

Section 4(b)(i) Issue

Therefore, the first matter to be determined is whether the applicant sustained an injury, namely, an aggravation of degenerative disc disease in the cervical spine that arose out of or in the course of his employment with the respondents pursuant to s 4 (b) of the 1987 Act.
Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act. The term ‘injury’ is relevantly defined in s 4 as it applies to this case as:
“4 Definition of ‘injury’
In this Act:
Injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
The applicant submitted that the onset of symptoms occurred after the applicant commenced work with the first respondent in July 2017. The applicant argued that the applicant worked in an office which was poorly set up ergonomically and required him to work long hours at a computer in a position where he had to stretch out his right hand, constantly use a mouse and answer telephone calls holding the receiver of the phone between his shoulder and his neck.
The respondent submitted that while there was no dispute that the applicant was diagnosed with degenerative disc disease in 2021, there had been no aggravation of that disease while he was employed by the first respondent or by second respondent, and no complaints had been made by the applicant to any of his treating doctors about his neck until early 2021. Further, the respondent submitted the applicant’s evidence should be treated with caution because of the inconsistencies in his evidence, inconsistencies with the evidence of other witnesses, and also because of the events which led to his employment being terminated by the first respondent.
For convenience, I propose to deal firstly with the case against the second respondent.

Employment with the second respondent

Mr Horan submitted that an award should be entered in favour of the second respondent.
Dr Khong, in a report dated 25 September 2023, was the only doctor who was expressly requested to consider the connection between the applicant’s employment with the second respondent and the injury or pathology diagnosed. Dr Khong concluded that work likely caused both an acceleration and exacerbation of the degenerative changes in his cervical spine. He referred to long hours doing computer work with poor ergonomics having directly contributed to the development of his pain. Dr Khong was then asked if the employment with the second respondent was the main contributing factor to his injury, that is, the acceleration and exacerbation of degenerative changes in his cervical spine. Dr Khong wrote: “Yes. CAR did not have pain prior to his workplace injury. His employment with BME group was the main contributing factor to his injury, which caused an acceleration and exacerbation of the degenerative changes in his cervical spine”.
Dr Khong later stated that the applicant did not have pain before his employment with the second respondent.
Mr Horan submitted, and I accept, that Dr Khong clearly confused the two periods of employment with the first respondent and the second respondent. Dr Khong expressed an opinion based on the work conditions that the applicant alleged he experienced when working for the first respondent, and not when working with the second respondent.
The applicant, in his statement dated 23 January 2024, stated that he commenced employment with the second respondent on 16 April 2018 and was to assist the building manager at Maestri Towers. He stated that he was required to look after the front desk of the building, which entailed regular administrative work and being the point of contact for tenants. He said he was also required to maintain and check the roof top area which contained machinery and equipment. He described as part of his daily responsibilities, carrying out thorough building inspections both in the morning and evening, which involved examining all 25 levels of each building within the complex. He stated that he was also tasked with inspecting various external areas, including rooftops where plant rooms were situated, the underground car park, the garbage room, and four elevators. The applicant left this employment with the second respondent on 20 November 2018 because he was not coping and was overwhelmed all the time. He stated that his body was aching “everywhere and he was always tired, depressed and unable to concentrate”. The applicant did describe performing some concierge duties and some work at a computer,
It is clear that the complaints by the applicant of poor ergonomics were made against the first respondent and not against the second respondent. However, Dr Khong provided an opinion that apparently implicates the second respondent. I am satisfied that Dr Khong confused the names of the two employers. As a result of that confusion, no weight can be placed upon the report of Dr Khong concerning the cause of the alleged injury in the employment of the second respondent.
I accept Mr Horan’s submission that there is no evidence from which I can form a view that the work the applicant did with the second respondent was the same type of work he performed for the first respondent. Therefore, I am not satisfied that the applicant sustained an injury arising out of or in the course of his employment with the second respondent.

Employment with the first respondent

It was the applicant’s evidence in his statement dated 15 September 2021 that, after five of staff were terminated or resigned, his role became more administrative, and he had to stay in the office all day working at his computer and answering phone calls. He said that he worked 12 hours days six days a week. The applicant stated that immediately after starting his role with the first respondent he noticed his body, particularly his neck, back and hands were aching and in pain. He stated that the pain persisted and continues to date. The applicant attributed this pain to his “mental exhaustion every day due to long working hours”.
The applicant stated that he answered the phones all day and did this by resting the phone on his left shoulder in order to keep his hands free and keep on working. He said that “this action made my neck turn for long hours and durations and I would always feel stiff and sore…This caused a strain to my neck.”
In his statement dated 8 November 2021, the applicant said that since working for the first respondent he had complained to his general practitioner regarding depression and work stress, the workload and the stain and aches this was causing to his body. The applicant stated that when the injury first developed, he was in a state of mind when his psychological injury gravely affected him and “masked” the pain to his neck, back, shoulders and radiating pain to his legs. He said that he would constantly feel pain in his back and shoulders. The applicant stated that he had reported the injury to Dr Ozser each time he saw him even during his period of employment with the first respondent.
In his statement dated 24 January 2023, the applicant addressed various issues raised by Mr Breckell, Mr James, Mr Howell and Ms Dangelico. The applicant rejected Mr Breckells’s allegation that the applicant had taken over work of staff who had been made redundant so that he could “steal money and defraud the company”. The applicant stated that because he was exhausted, he had made errors. The applicant stated that the matter was taken to court where the judge found that he had not done anything wrong but then said “I was given a conviction for misappropriation of funds. Nothing was stolen.” The applicant maintained that other witnesses, Mr James, Mr Howell, and Mr Breckell were not in the office for very long and were not in a position to comment on the hours that he worked. The applicant disputed that Ms Dangelico knew what hours he worked and said that she had not been there when he was working long hours.
In cross examination, the applicant conceded that in his claim form dated 4 March 2020, he made a claim in respect of major depression and anxiety and there was no reference in that form nowhere in that form to his neck. He agreed that during 2020 he was seeing doctors, namely Dr Ozser, Dr Baume and Dr Browne. In an answer to the question “Up until 1 March 2021 when you saw Dr Lim you’d never told anyone about your neck?” he replied “I’d spoken to Dr Ozser about it. I was very tired or my arms were always sore” The applicant was then asked: “You never mentioned your neck, did you?” and he replied” Not specifically.”
The applicant agreed that when he was working for the first respondent in 2017, he often had to outstretch his arms which caused a strain to his neck and hands. He was asked if he specifically recalled pain to his neck and replied “Yep.” The applicant was asked about the evolution of the neck pain and whether it was the same pain or different and he replied: “It’s different. It’s probably gotten worse, if anything.” The applicant confirmed that the neck pain was bad at the time and added that he used to get headaches. The applicant proceeded to describe the headaches and neck pain as going away after he went home and slept and then when he returned to work the next day and he started pulling on things “it would start coming back again”. He agreed that this was a “recurrent theme”.
When asked why if he had neck pain, he did not tell his doctor about it, he said “well it’s the same, the neck pain, you have neck pain, you don’t go to the doctor every five minutes. “
The applicant agreed that the neck pain would last the whole day. He was asked about answering the phone and agreed that he held the phone between his left shoulder and his chin. The applicant was asked “So you were doing something else whilst you’re on the phone?” and answered: “I used to be there from 7 o’clock in the morning till 11 o’clock at night.”
The applicant agreed that while he was at the first respondent he felt his neck was stiff and sore. He agreed that he had stated that this had caused a strain to his neck and back.
It was put to the applicant that he did see his doctor and had ample opportunity to tell the doctor about it and he answered “Probably did but I don’t, I don’t remember so…”
The applicant was asked: “Notwithstanding that you say that you had some issues with Vanguarde in your neck is it correct to say never did it enter my mind that there was anything physically wrong with me?” The applicant answered: “Yeah, that’s correct, I didn’t think that anything was wrong”.
In cross-examination, the applicant was unable to answer a number of questions because he could not recall what he had said to someone, for example, what he told Dr Baume in 2019. The applicant could not remember seeing Dr Ozser about pain in his upper right abdomen in November 2019, nor getting treatment for that complaint, including an ultrasound. The applicant could not recall seeing Dr Browne in December 2019. He did not recall stating that he felt pressured to resolve his claim for psychological injury in the Commission for a small settlement sum. At one stage the applicant said: “I don’t remember what I had for breakfast let alone what I wrote in March 2024.”
The evidence of Mr Breckell, Mr Howell, Mr James and Ms Dangelico raises issues about the hours the applicant actually worked, the volume of phone calls that the applicant had to answer, and whether he made any complaints about office equipment or the problems he was having using the equipment. However, Mr Breckell did concede that the applicant had talked to him about the number of extra hours that he was working. Mr Breckell stated that the applicant never spoke to him about the pain he alleged he was having in his hands, fingers, arms, back or neck and that the applicant never said anything about his workstation or office equipment.
Mr Howell stated that he would attend the office where the applicant worked for the first respondent and said that the applicant was often late for work in the morning and would work past 5.30pm to make up for lost time but if the applicant arrived at the start time of 8.45am, he would leave around 5.30pm. He stated that there was a low volume of phone calls received in the office. He said that he never heard the applicant complain about his keyboard or the length of the cable to the hard drive.
Mr James also worked with the applicant in the same office in the first respondent’s premises and performed IT support. He stated that the applicant never complained to him about his workstation.
Ms Dangelico worked with the applicant for the last five weeks of his employment by the first respondent. She said that he was often out of the office at inspections, ingoings and outgoings and never worked 12 hour days. She stated that she was usually the last person to leave the office. She said that she sat next to the applicant and did not recall him asking for better ergonomic equipment. She did not recall him complaining about his right hand, or about pins and needles in the right hand.
As noted above, Mr Gaitanis submitted that there were issues of credit and that some caution needs to be exercised in accepting the applicant’s evidence. Mr Gaitanis submitted that where a witness has lied then, in accordance with the principles set out in Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117(Ferreira), the balance of that evidence calls for careful assessment. Ferreira was a case where a worker gave perjured evidence on a specific topic. However, in the present case, I have not concluded that the applicant has lied, and therefore the principles in Ferreira are not applicable.
I am satisfied that there were exaggerations and inconsistencies in the applicant’s evidence. I also considered that the applicant’s memory in some respects was poor, and this affects his reliability as a witness. Indeed, in cross-examination the applicant stated that he could not recall certain events and even what “I had for breakfast”. In short, the applicant ‘s evidence at times was that he had a bad memory. Although I accept that is the case, the impression also I gained was that when he did not wish to answer a question, his response would be that he was unable to remember.
The applicant’s evidence statements also contain inconsistencies, which is perhaps not unusual when he relied on five formal statements, and there are also inconsistencies between his statement and oral evidence.
On balance, I am satisfied that the applicant did make a complaint to Mr Breckell about working long hours. However, the evidence of Mr Breckell, Mr Howell, Mr James and Ms Dangelico does not support a finding that the applicant complained about his computer, the keyboard and mouse or made complaints about pain in his hands or neck.
I accept that the applicant may have answered the phone in the manner he described but I am not satisfied that the volume of calls was as high as described by him. Further, I do not accept that he worked 12 hour days, six days a week.
I have accepted the evidence of Mr Breckell, Mr Howell, Mr James and Ms Dangelico where there is a conflict between their evidence and the evidence of the applicant. I formed the impression that the applicant was prone to exaggeration. For example, he stated that he worked 12 hour days but in cross examination he stated that he was in the office from 7.00am to 11.00pm. I am satisfied after taking into the account the evidence of Mr Breckell, Mr Howell, Mr James and Ms Dangelico that the applicant exaggerated the number of hours that he worked, the number of staff who were terminated or left after he started work for the respondent, the volume of phone calls that came into the office, the condition of the office and problems with the computer set up such as short cables.
The real issue in this case is whether the applicant sustained an aggravation to the degeneration in his cervical spine during his five and a half month period of employment with the first respondent.
A review of the consultations with his general practitioner revealed that he saw Dr Ozser or another doctor in the practice concerning a range of medical issues about 18 times between between 1 November 17 and 6 November 2018. At no stage during this period did Dr Ozser note or report that the applicant made any complaint about his neck, arms or hands or pain in the neck, arms and hands. On 30 August 2019, about one year and nine months after the applicant’s employment with the first respondent was terminated, Dr Ozser noted that the applicant had swollen hands. On 12 September 2019, Dr Ozser noted that the applicant’s abdominal pain had resolved but “today he notices possible neck swelling”. On examination no abnormality was detected. There was no complaint of pain in the neck or pain radiating into the arms and hands. On 16 September 2019, Dr Ozser noted that the applicant rheumatoid symptoms were getting worse and referred to the hands, feet, ankles, wrists and knees, He made no reference to the neck. It was not until 11 February 2021 that Dr Ozser noted that the applicant had right arm pain and paraesthesia involving all fingers in the right hand and mostly the middle finger. On 20 April 2021, Dr Ozser noted that the applicant told him that he had a cervical spine MRI and was seeing a neurosurgeon to further investigate the cause of bilateral hand pains. On 31 August 2021, Dr Ozser reported that the applicant complained of neck pain.
There were clearly a number of medical conditions that were diagnosed after the applicant’s employment with the first respondent was terminated. In his report of 29 April 2021, Dr Ozser noted that the applicant had multiple presentations with musculoskeletal pain symptoms starting around August 2019 and had given a three week history of bilateral hand swelling, pain, erythema and paraesthesia and similar but somewhat milder symptoms in his feet. In the consultation on 16 August 2019, Dr Ozser noted that the applicant’s hands were clinically swollen and referred him to rheumatologist Dr Chris Browne. Dr Ozser noted that the applicant was subsequently diagnosed with Fibromyalgia and Seronegative Arthritis. Dr Ozser went on to state that during the years 2019 and 2020, he saw the applicant multiple times and the majority of his presentations related to the Fibromyalgia and Seronegative Arthritis and Major Depression. Dr Ozser reported that the applicant’s hand and foot pain remained active during this period and was reported to be severe.

I accept that Dr Ozser did express the view that neither the fibromyalgia diagnosis nor the seronegative arthritis diagnosis explained the paraesthesia first reported on 16 August 2019.
However, I do not accept that the applicant complained to Dr Ozser about paraesthesia in the right hand before 16 August 2019. Further, I do not accept that the applicant complained about his neck to Dr Ozser until 2021 apart from a reference to neck swelling on 12 September 2019 which appeared to have no real significance as no abnormality was found on examination. I am satisfied that the complaint made to Dr Ozser relating to swelling, pain and erythema in his hands in August 2019 were in relation to symptoms caused by fibromyalgia and seronegative arthritis.
Cases such as Davis v Council of the City of Wagga Wagga 2004 NSWCA 34 and Mason v Demasi [2009] NSWCA 227 warn that inconsistencies between a witness’s evidence and clinical notes should be treated with caution. However, it is a feature of this case that so many medical providers have recorded a history that is inconsistent with the applicant’s evidence.
There is no evidence to corroborate the applicant’s evidence that he was experiencing pain in his neck and hands when working for the first respondent. He did not appear to make any statement about his working conditions with the first respondent and the alleged problems with his neck and hands until September 2021, although I accept that he referred to these issues when he saw Dr Lim on 17 February 2021. It is very significant, in my view, that the applicant made no recorded complaint to Dr Ozser about the pain he said he experienced every day at work in his neck and right hand during his period of employment with the first respondent or even in the 20 months after his employment was terminated. I do not accept that it is plausible that if the applicant had pain as he has described when working for the first respondent, he would not have mentioned it to his general practitioner during that period of employment and certainly during one of the many consultations he had with his general practitioner in the year following the period of employment with the first respondent.
The applicant submitted that his psychological issues and the other conditions of fibromyalgia and seronegative arthritis complicated the diagnosis in relation to the cervical spine. The applicant also submitted that the psychological issues and the other conditions of fibromyalgia and seronegative arthritis masked the aggravation of the degenerative condition in his cervical spine. However, a close reading of Dr Ozser’s clinical notes does not support these submissions. The applicant consulted Dr Ozser regularly and Dr Ozser treated him for a range of conditions. I am satisfied that if the applicant had a medical problem regarding the neck or cervical spine, the applicant would raise the problem with Dr Ozser. The fact that the applicant had psychological issues and the other conditions of fibromyalgia and seronegative arthritis certainly did not preclude him from raising other conditions with Dr Ozser after his employment with the first respondent was terminated. For example, on 5 February 2018 he consulted Dr Ozser about his toenail and a lost script, as well as about his depression and anxiety and dismissal from work.
It was also significant in my view that the applicant saw two rheumatologists in 2019, Dr Baume and Dr Browne. Neither of these doctors reported any complaints about the cervical spine in 2019. I accept that Dr Baume reported on 18 September 2019 that over the last two-three weeks the applicant had intermittent erythema and swelling of the hand and feet sometimes associated with paraesthesia. I accept that Dr Browne, who treated the applicant between December 2019 and January 2022, made a reference to altered sensation in the right hand and forearm on 1 March 2021 and referred the applicant for nerve conduction studies. This referral led to Dr John O’Neill’s Clinical Neurophysiology Report dated 9 April 2021 where Dr O’Neill reported a normal study. On 17 January 2022, Dr Browne reported that the applicant had right sided cervical pain.
It is clear the complaint of paraesthesia in the right hand was not made to a treating doctor until August 2019. From the history given by the applicant to both Dr Ozser and Dr Baume, the paraesthesia in the right hand did not start until either late July 2019 or early August 2019. The applicant worked for the first respondent between 17 June 2017 and 1 December 2017. The histories taken by Dr Baume and Dr Ozser are not consistent with the history given to Dr Khong of the applicant starting to have pain and numbness in the right hand and arm after he started work with the first respondent in July 2017. Dr Lim did not report when symptoms such as pins and needles in the right arm and neck pain actually started and only first noted that the applicant was experiencing pain in his right hand in July 2017. The applicant, in his various statements and his oral evidence, did not actually state that paraesthesia, pins and needles or numbness were occurring when he worked for the first respondent. The applicant only referred to sore wrists, sore neck, right hand pain, soreness, strains to the neck and hands.
The applicant submitted that the weight of the medical opinion supported a finding that the applicant had sustained an injury to his cervical spine in the course of his employment with the first respondent.
While I accept that work such as that described by the applicant involving use of a keyboard and answering a phone by holding it between his neck and shoulder could cause an aggravation of an underlying degenerative changes in the spine, the question to be addressed is whether it did in this case.
The opinions expressed by the doctors in this case concerning causation were, of course, based on the history provided by the applicant being accurate and reliable.
Dr Lee in addressing causation noted that the age of the equipment was not important, and “it was whether the setup is proper that makes the difference”. Dr Lee accepted that using the phone holding it between his ear and shoulder would be an important factor in the injury.
Dr Lee reported under “History of Injury” that “CAR corrected the record that the date of injury should be 14/06/2017. He noticed pain, pins, and needles sensation”.
Dr Lee went on to note that the applicant’s work was mainly in the office, meeting clients and he was on the phone all day. Dr Lee noted that the applicant took three months off and returned to work in April 2018. He noted that the applicant had to stop in December 2018 because “he felt tired and could not lift his hands to do anything. There are also pins and needles sensation and numbness”.
Dr Lee’s opinion is based on the assumption that the applicant experiencing pain, pins and needles and numbness in his hands during 2017 and 2018. No real weight, in my view, can be given to Dr Lee’s opinion on causation in the situation where the applicant has failed to establish that he experienced pain, pins and needles and numbness in his hands during 2018 and 2018.
Dr Singh obtained a history of neck and arm pain with worsening pins and needles in the right arm “which are related to the nature and conditions of his employment with repetitive neck movements and using the phone to the ear with his shoulder”. Dr Singh did not indicate precisely when the symptoms began but it can be inferred from his report that he assumed the neck and arm pain started during the employment with the first respondent. Again, no real weight can be placed on Dr Singh’s opinion in relation to causation because it is based on the assumption that the applicant experienced neck and arm pain and pins and needles in the right arm during his period of employment with the first respondent.
Dr Khong noted that in July 2017, the applicant was doing a lot of computer work and also holding the phone between his neck and left shoulder and he started to experience pain and numbness in the right arm and hand. Dr Khong noted that the applicant took three months off work and then got another job from April to November 2018, but kept getting pain in his right hand. Again, Dr Khong based his opinion in relation to causation on the assumption that the applicant experienced pain and numbness in the right arm and hand during the period of his employment with the first respondent.
Dr Lim obtained a history of the applicant suffering a neck, shoulder and wrist injuries whilst at work on 1 December 2017. Dr Lim noted that the applicant started at the company in June 2017 and began experiencing pain in his hand in July. Again, Dr Lim has assumed that the applicant experienced pain in his hand while working for the respondent in July 2017.
On balance, I find that the paraesthesia developed in the right hand some 21 months after the applicant ceased work for the first respondent.
I am satisfied that the applicant did not report to any doctor any neck symptoms or paraesthesia in the right hand after he left the employment of the first respondent on 1 December 2017 before July or August 2019. This is, in my view, too long a period for that employment to be implicated as a cause of a neck injury that now requires surgery.
This is a case, in my view, as sometimes occurs in workers compensation cases, where a body part spontaneously develops symptoms sometime after a worker ceases employment with no apparent contribution from work. Here, the applicant’s treating doctors, particularly Dr Ozser, Dr Baume and Dr Browne, were presented with complaints of paraesthesia in the right hand some considerable time after the applicant ceased work for the first respondent. Further, there were no complaints made in respect of stiffness or pain in the neck until the consultation with Dr Lim on 17 February 2021.
The Court of Appeal, in the matter of Nguyen v Cosmopolitan Homes, [2008] NSWCA 246 summarised the approach to a finding of the existence of a fact 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.”
For the reasons above, I do not feel a sense of actual persuasion that the applicant sustained an injury to his cervical spine arising out of or in the course of his employment with the first respondent on 1 December 2017, and find that the applicant has not discharged the onus of proof that he probably sustained such an alleged injury.
I determine that the applicant did not sustain injury to his cervical spine arising out of or in the course of his employment with the first respondent on 1 December 2017.
For the reasons already given above, I determine that the applicant did not sustain injury to his cervical spine arising out of or in the course of his employment with the second respondent on 20 November 2018.
In view of my findings above, it is unnecessary to consider any of the other issues in this matter.

[2024] NSWPIC 214

29 April 2024