Catlow v Ventia Australia Pty Ltd
[2025] NSWPIC 331
•09 July 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Catlow v Ventia Australia Pty Ltd [2025] NSWPIC 331 |
| APPLICANT: | Julian Catlow |
| RESPONDENT: | Ventia Australia Pty Ltd |
| MEMBER: | John Turner |
| DATE OF DECISION: | 09 July 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; injury; section 4; Kooragang Cement Pty Ltd v Bates, Paric v John Holland (Constructions) Pty Ltd [1984], and Paric v John Holland (Constructions) Pty Ltd [1985] applied; Held – the applicant did not sustain injury as claimed; there is an award for the respondent. |
| DETERMINATIONS MADE: | 1. Application to Resolve a Dispute amended to include a claim for a general order for medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 . 2. The applicant did not sustain injury as claimed. 3. There is an award for the respondent. |
STATEMENT OF REASONS
BACKGROUND
Mr Julian Catlow (applicant) has brought proceedings in the Personal Injury Commission (Commission) in which he alleges that in the course of his employment with Ventia Australia Pty Limited (respondent) he grazed his toe on or about 8 May 2024. In the alternative the applicant alleges that he suffered a disease injury with a deemed date of injury of 8 May 2024. The applicant alleges that he developed cellulitis and was off work as a result.
The applicant claims weekly compensation pursuant to s 36 of the Workers Compensation Act 1987 (1987 Act) from 8 May 2024 to 8 July 2024. The Application to Resolve a Dispute (ARD) was amended without objection at the time of the conciliation hearing to include a claim for a general order for medical and treatment expenses pursuant to s 60 of the 1987 Act.
The applicant’s pre-injury average weekly earnings is agreed by the parties at $1,111.28.
The applicant commenced employment with the respondent as a cleaner on 28 March 2024. It is the applicant’s evidence that in addition to his cleaning duties he was also required to close all the doors and windows, lock the building and ensure that all staff had left the premises before locking up and setting the alarm.[1]
[1] ARD p. 2.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury – ss 4 and 9 of the 1987 Act;
(b) substantial contributing factor – s 9A of the 1987 Act;
(c) disease provision – ss 15 and 16 of the 1987 Act;
(d) capacity/incapacity for work – s 33 of the 1987 Act, and
(e) whether claimed treatment is reasonably necessary as a result of injury – s 60 1987 Act.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The matter was listed for conciliation conference/arbitration hearing before me on 16 June 2025. Mr Ross Hanrahan, counsel, instructed by Keen Lawyers, appeared for the applicant, who was present. Mr Daniel Stiles, counsel, instructed by Sparke Helmore Lawyers, appeared for the respondent. The proceedings were conducted in-person. 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 Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) Application to Lodge Additional Documents lodged on behalf of the respondent dated 15 May 2025 (AALAD) with attached documents, and
(d) Application to Lodge Additional Documents lodged on behalf of the applicant dated 31 May 2025 (RALAD) with attached documents.
Oral evidence
No oral evidence was adduced.
FINDINGS AND REASONS
Injury
Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
The applicant bears the onus of establishing injury on the balance of probabilities. For a tribunal of fact to be satisfied on the balance of probabilities of the existence of a fact, it must feel an actual persuasion of the existence of that fact: see Briginshaw v Briginshaw [1938] HCA 34; 91938) 60 CLR 336 (Briginshaw).
In Mr Hanrahan’s submission the applicant was required by the respondent to wear a certain type of footwear and that the applicant purchased work boots which he wore when performing his work duties for the respondent.
The evidence supports that the applicant was required by the respondent when performing his work duties to wear shoes with a leather style upper.
An email from David Huthnance, the respondent’s P & C Partner, to the respondents Jessie Clifford dated 3 April 2025[2] states that all cleaners are instructed that they are required to wear fully enclosed shoes with leather style uppers which were not supplied by the respondent. A document from the respondent titled “Cleaning Training Record”[3] also records that leather upper shoes were required.
[2] RALAD p. 156.
[3] RALAD p. 155.
I find that the applicant was required by the respondent when performing his work duties to wear shoes with a leather upper.
The evidence supports that the applicant did wear leather upper work boots when performing his work duties for the respondent.
It is the applicant’s evidence that on 26 March 2024, prior to commencing with the respondent, he purchased a pair of protective work boots which he intended to wear whilst performing his work duties for the respondent.[4] It is the applicant’s evidence that he wore the work boots which he had purchased for up to eight hours per day when performing his work duties which included activities such as cleaning, walking, mopping and vacuuming, emptying bins.[5] The applicant’s evidence in this respect is unchallenged and I accept his evidence.
[4] ARD p. 2.
[5] ARD p. 2.
I find that the applicant did wear work boots whilst performing his work duties for the respondent.
It is the applicant’s case that whilst wearing his work boots in the performance of his work duties the third toe on his left foot rubbed on the boot which caused a callus to develop and that the treatment of that callus led to the contraction of an infection in the form of cellulitis.
It is the applicant’s evidence that whilst in the course of his employment with the respondent he could feel his boot rubbing on the third toe of his left foot and that over time a callus built up on the toe.[6]
[6] ARD p. 2.
It is the applicant’s evidence that on 2 May 2024, whilst in the course of his employment with the respondent, he grazed his leg on an old metal cleaning bucket in a storeroom sustaining a small cut to his left lower leg. That on 3 May 2024 whilst emptying bins he was bitten on his left leg by a bug or insect.
It is the applicant’s evidence that on 4 May 2024 he attended on a podiatrist to have a callus removed from around the third toe of his left foot and that he “did not notice any other problems with my feet.”[7]
[7] ARD p. 2.
The clinical record from the applicant’s attendance on Miss Thuy-Lyn Pham of the Hills Podiatry Centre on 4 May 2024 contains technical terms which makes the clinical record difficult to decipher. However, it does relevantly record:
“HK apices and bilat. plantar 5th debrided, esp apex L 3rd
All sanded and emollient applied
L 3rd dressed with beti and cuti
Advised to redress daily for 5 days see gp if not improved”[8]
[8] RALAD p. 150.
Miss Thuy-Lyn Pham reported to Dr Bhowmik with a document titled "Medicare GP Management Plan/Team Care Arrangement”.[9] The document is undated and there was some uncertainty expressed during submissions as to when the document was produced. I am of the view that the document firstly relates to the applicant’s attendance on Miss Thuy-Lyn Pham on 4 May 2024 and that it was most likely authored on 4 May 2024 following the clinical attendance. I am of this view as the document refers to the “[t]reatment provided today” as well as referring to neurological testing, “not sensate to vibration or monofilament testing at the 1/3rd digits.” The available clinical records only record such testing as having been performed on 4 May 2024. Also, according to the clinical records this is the only occasion on which the applicant was seen by Miss Thuy-Lyn Pham.
[9] RALAD p. 153.
The podiatrist records in the "Medicare GP Management Plan/Team Care Arrangement” ”[E]rythema at the base of the R 3rd nail, weeping serous fluid, reports no incidence of trauma.” It also records corn/callus reduction amongst the treatments provided.
Whilst the reference is to the “R 3rd nail” in respect to the erythema I am of the view that this is an error and that it was in fact the left third toe. The podiatrist clinical record of the applicant’s consultation on 4 May 2024 only records “L 3rd” including detailing that a dressing was applied. Also, as previously noted it is the applicant’s evidence that he attended on the podiatrist to have a callus removed from the third toe of his left foot and that at that time he did not notice any other problems with his feet. Mr Hanrahan observed that the reference to the right third toe was troubling, but it was not unknown for the wrong limb to be recorded in the clinical records. In the respondent’s submission the podiatrist in the clinical record of the attendance appears to be talking about the left third toe.
This clinical podiatrist clinical records for the attendance on 4 May 2024 does confirm that the applicant had treatment to the third toe of his left foot. Mr Stiles in in his submissions on behalf of the respondent advised that his research indicated that “HK” stood for hyperkeratosis callus. The clinical note is therefore, in my view, consistent with the applicant’s evidence that he had a callus removed from his left third toe on 4 May 2024 by a podiatrist.
It is the applicant’s evidence that on 6 May 2024 he started to feel pain in his left lower leg. Initially the pain felt like a muscle strain. The pain continued and increased over the next couple of days and on 7 May 2024 he attended on the Kellyville Medical Centre where he was prescribed the antibiotic, Bactrim, for an infection of the third toe of his left foot. The clinical record also records that the applicant’s “BSL” which I take to mean blood sugar level was all over the place. It is the applicant’s evidence that he did not have any other problem with his feet and did not have any issue concerning his right great toe.[10]
[10] ARD p. 3.
There is in evidence two different versions of the clinical record of the applicant’s attendance on Dr Dipanwita Bhowmik of the Kellyville Medical Centre on 7 May 2024. The copy of the record which appears at pages 47-48 of the RALAD relevantly records the reason for the visit as toe pain and infection as well as diabetes review. The clinical record records that the applicant had an injury to his right great toe and left third toe with infection as well as details in respect to the applicant’s diabetes. The applicant was prescribed the antibiotic Bactrim. A further copy of the clinical record appears at ARD pages 40-41 relevantly this copy also records the following which does not appear in the RALAD copy:
“Injured right great toe and left 3rd toe at work
Unsure how ? possible bites
he went to his Podiatrist for diabetic foot check up and advised to see GP immediately due to concern of infection.
O/E:
Gait OK
Afebrile
Left 3rd toe looks infected also right great toe – discharge noted.”[11]
[11] ARD pp. 40-41.
There is no explanation for the difference between the two records. I do however note that the copy in the RALAD appears to be an electronic copy as it contains hyperlinks whilst the copy in the ARD is a printed hardcopy which records on the first page that it was printed on 15 May 2024 (about a week after the entry was created).
The version of the clinical records in the RALAD had presumably been produced in response to a Direction for Production (however I do note that on the first page of those records it is recorded that it was printed on 31 May 2024, however as previously observed the copy in evidence is not a scanned printed copy) and is a more complete copy of the overall clinical records. It was however produced after the copy which appears in the ARD.
Whilst I accept the respondent’s submission that due to the differences in the two copies the clinical records should be treated with caution, I am of the view that the copy in the ARD is the more reliable given that it was copied at an earlier time and at a time shortly after the entry was created.
It is the applicant’s evidence that on the morning of 8 May 2024 whilst performing his work duties he was again bitten by a “bug” whilst emptying a rubbish bin. At 7am he started to feel unwell and that about half an hour later he experienced severe pain in the whole of his left lower leg. The applicant then attended upon his general practitioner that morning.[12]
[12] ARD p. 3.
It is the applicant’s evidence that at around 8am on 8 May 2024 he was contacted by his supervisor, Christine Gough, who told him that she had to complete an Incident Report and that Ms Gough then asked him about how his leg could have been injured.
On 8 May 2024 Ms Gough, completed an Incident Report[13] in which the injury details are recorded as:
“Left leg calf muscle on the outside of the leg. From lifting up the bins in the outside rubbish area.”
[13] ARD pp. 22-24.
As to how the injury occurred the following is recorded:
“Cleaner said that the injury occurred due to repeated lifting up garbage bags and vacuuming.”
The date on which the incident occurred is recorded as 8 May 2024.
The clinical record of the applicant’s attendance on Dr Bhowmik on 8 May 2024 records left leg cellulitis as the reason for the visit as well as the following:
“did not start Abx yet
he wants to double sure Abx he was given would work for it
Strongly advised to start
he was in garden – possible [sic] sec infection from something bitten he feels
cellulitis obvious in left lower leg and spreading”[14]
[14] ARD p. 41.
This is the first mention of the diagnosis of cellulitis in the clinical records.
On 10 May 2024 the applicant again attended on Dr Bhowmik for cellulitis follow up. The applicant was advised to elevate his legs as much as he could and was provided with a medical certificate.[15]
[15] ARD p. 41.
On 13 May 2024 the applicant completed a claim form.[16] The applicant records in the claim from a date of injury of 8 May 2024 and describes how he was injured as “Emptying garbage bins. Bitten by bug. Also bitten on previous shift. Also recd cut/graze from storeroom (too small) roof and bins.” The injury is described as lower left leg inflamed and very painful – cellulitis.
[16] ARD pp. 25-31.
On 13 May 2024 the applicant again attended on Dr Bhowmik. The clinical note of the attendance records that the applicant asked for a Certificate of Capacity as the cellulitis had happened secondary to insect bite at work.
Dr Bhowmik reported to the respondent on 15 May 2024[17] providing answers to questions posed by the respondent which are not in evidence. The doctor records that the applicant claimed that the injury happened at work following an insect bite to his left lower leg while working in the garden. The doctor diagnosed left lower leg cellulitis and was of the opinion that there was a clear link between the cellulitis and the bites. The doctor noted that the applicant had uncontrolled diabetes which was a barrier.
[17] ARD pp. 38-39.
On 12 June 2024 Dr Bhowmik reported to the applicant’s solicitors.[18] The doctor records that the applicant had mentioned that he had sustained injury whilst gardening on 8 May 2024.
[18] ARD pp. 43-44.
It is not in dispute between the parties that the applicant suffers from Type 2 diabetes mellitus which was a pre-existing condition. The evidence is conflicting as to whether the condition is controlled or not. The applicant reported to Dr Stephen Shumack, who’s report will be discussed below, that his diabetes was well controlled however the clinical records are littered with references to the diabetes being poorly controlled. Having reviewed the clinical records which will be discussed below I am of the view and find that the applicant’s diabetes was not controlled.
In the respondent’s submission the applicant was suffering from problems with his feet and toes for some time prior to commencing employment with the respondent. These problems occurred in the respondent’s submission within the context of the applicant suffering from uncontrolled diabetes. Mr Stiles went through the clinical records at length observing that the applicant was diagnosed with diabetes on 26 August 2022[19] following blood tests.
[19] Reply p. 22.
On 21 February 2023[20] the applicant attended on Dr Bhowmik with a painful corn on his right foot. The doctor noted that the applicant needed routine podiatry referral and check-up. A letter of referral from Dr Bhowmik to the Hills Podiatry Centre dated 21 February 2023[21] requests opinion and management of the right foot corn whilst noting that the applicant has diabetes mellitus Type 2.
[20] Reply p. 46.
[21] RALAD p. 152.
A Hills Podiatry Centre New Patient Information - Form[22] which is undated but which in all probability would have been completed on or about 23 February 2023, being the date of the applicant’s first attendance at the practice, identifies corns or callus as the reason for the applicant’s attendance. The first entry in the clinical records of Hills Podiatry Centre is for
23 February 2023[23]. The entry records that this was the applicant’s first time at the practice and that he had not previously seen a podiatrist. The applicant presented with right plantar “HD” (which in the respondent’s submission is a Heloma Duram or hard corn).[22] RALAD p. 149.
[23] RALAD p. 151.
On 21 April 2023 the applicant attended on Dr Bhowmik complaining of a left ingrown toenail infection for which he was prescribed antibiotics.[24] The applicant next attended on
Dr Bhowmik on 25 April 2023 at which time the doctor noted that there was no change to the ingrown toenail, possibly due to high “BSL” which I understand to mean blood sugar levels. The doctor noted that the applicant needed stronger antibiotics.[25][24] Reply p. 48.
[25] Reply p. 48.
The applicant next attended on the Hills Podiatry Centre on 27 April 2023[26] at which time the applicant complained of painful “L hall at lateral sulcus due to cutting his nails recently and went down sides.” The clinical record of the attendance also records that the applicant was on his second course of antibiotics.
[26] RALAD p, 150.
On 5 May 2023[27] Dr Bhowmik recorded that the applicant’s diabetes was “uncontrolled”. The applicant agreed that he did “not maintain healthy lifestyle.”
[27] Reply p. 49.
On 13 June 2023 the applicant attended on Dr Bhowmik who recorded the reason for the visit as uncontrolled diabetes.[28] On 4 August 2023 Dr Bhowmik recorded that the applicant had stated that his BSL goes down and then comes up again high. The applicant was started on Ozempic.[29]
[28] Reply p. 50.
[29] Reply p. 51.
The applicant again attended on Dr Bhowmik on 1 September 2023 and 8 September 2023 at which time it was questioned whether the applicant had diabetes mellitus Type 1.[30] On
15 September 2023 and 13 October 2023 when the applicant attended on Dr Bhowmik his diabetes appears to have been more controlled with the doctor recording that his BSL had improved however there was still room for improvement.[31] On 22 November 2023 and23 February 2024 the applicant complained to Dr Bhowmik that his sugar levels get better and then as soon as he eats anything go high.[32][30] Reply pp. 52-53.
[31] Reply pp. 53-54.
[32] Reply pp. 56-58.
On 25 January 2024[33] the applicant next attended on the Hills Podiatry Centre. The clinical record of the attendance records that the applicant presented for “HK” (respondent submits hyperkeratosis callus), left third PMA (plantar metatarsal area), “HK with underlying HD debrided - dressed with savlon and nupor for protection.” At this time the applicant is yet to commence employment with the respondent and had not as yet purchased his work boots, yet he appears from the clinical record to be having treatment for a callus on the third toe of his left foot.
[33] RALAD p. 150.
On 17 April 2024 the applicant is advised to start antibiotics by Dr Bhowmik for a skin lesion on the back of his neck. On 22 April 2024 the applicant is prescribed the antibiotic Bactrim.[34]
[34] Reply pp. 60-61.
On 1 May 2024 the applicant is referred to Hills Podiatry Centre by Dr Bhowmik after a telephone consultation.[35]
[35] Reply p. 61.
On or about 14 May 2024 the applicant completes a further document that was emailed to him in which he records that the injury, cellulitis, occurred as a result of being bitten by bugs and or a graze/cut sustained in the storeroom.[36]
[36] Reply p. 107.
Mr Hanrahan submitted on behalf of the applicant that the opinion of Associate Professor (A/Prof) Stephen Shumack as to causation should be accepted. A/Prof Shumack, dermatologist, examined the applicant on 13 August 2024 providing a forensic report to the applicant dated 15 August 2024.[37]
[37] ARD pp. 32-36.
A/Prof Shumack took a history of the graze to the left lower leg on 2 May 2024, the insect bite on 3 May 2024, the attendance on the podiatrist on 4 May 2024 “where a callus was scraped off from the lateral end of the third toe. A small cut ensued after this callus removal.” A/Prof Shumack also records a history of the applicant attending on his GP on 7 May 2024 “as there was some inflammation around the callus cut, and the GP prescribed some antibiotics at that time. He stated that he was asked by his podiatrist to attend his general practitioner if he was concerned about the healing of the callus cut.” A/Prof Shumack also took a history of a further insect bite to the leg on 8 May 2024.
On examination Dr Shumack observed a small callus on the end of the third toe of the left foot.
In the opinion of A/Prof Shumack it was impossible to say whether those injuries had led to the development of cellulitis, however it was possible particularly in an individual with poorly controlled diabetes. In the doctor’s opinion the more likely cause of any cellulitis would have been the podiatry procedure undertaken on 4 May 2024 requiring antibiotics on 7 May 2024. The doctor observed that the applicant started to develop the symptoms and signs of cellulitis in that leg on 8 May 2024 and he felt that was the more likely cause than the graze which occurred on 2 May 2024 and the insect bites on 3 May and 8 May 2024.
A/Prof Shumack however also noted that there was an ingrown toenail on the left third toe at the time of his examination which could have been the source of the infection, as far as the cellulitis was concerned.
The doctor observed that diabetes and in particular uncontrolled diabetes was associated with a greater risk of developing skin infections, such as cellulitis of areas, such as the leg.
In the opinion of A/Prof Shumack the clinical examination of the GP on 8 May 2024 was consistent with a diagnosis of cellulitis. In support of his opinion the doctor noted “erythema and a tenderness involving the lateral aspect of the leg, as well as feeling unwell and a fever.”
A/Prof Shumack was of the opinion that it is possible that the cellulitis is work-related and it was impossible to discount that the episode of cellulitis was related to his alleged injuries.
I do not accept the opinion of A/Prof Shumack. In my view the material before A/Prof Shumack did not create a “fair climate”[38] for the opinion that he expressed in respect to causation. A/Prof Shumack lists the documents which were provided to him to review. He was not provided with the clinical records from the Hills Podiatry Centre, and I can only assume that the clinical records provided to him of the applicant’s attendances on the Kellyville Medical Centre were limited to what has been attached to the ARD which only consists of the applicant’s attendances between 7 May 2024 and 13 May 2024.
[38] Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85).
In my view the clinical records of both the Hills Podiatry Centre and Kellyville Medical Centre contain information which needed to be considered by A/Prof Shumack in forming his opinion as to causation.
On 1 May 2024 the applicant attended on Dr Bhowmik by telephone at which time the applicant was referred to Hills Podiatry.[39] The clinical record contains no further relevant information. Obviously as the attendance was by telephone no examination was performed.
[39] Reply p. 61.
Whilst it is true that when the applicant attended on the Hills Podiatry Centre on 4 May 2024, he did have a callus on his left third toe treated and removed the callus was not the only condition affecting the third toe of his left foot. As previously discussed, the "Medicare GP Management Plan/Team Care Arrangement” which appears to have been completed on
4 May 2024 following the podiatry treatment also records ”[E]rythema at the base of the R 3rd nail, weeping serous fluid, reports no incidence of trauma.” Whilst the record refers to the right third toe this in my view is clearly an error for reasons which I have previously given.The erythema appears to have been of concern as the applicant was instructed by Miss Thuy-Lyn Pham “to redress daily for 5 days see gp if not improved” which indicates that there was a condition that should “improve”. At this point the applicant had only just had the callus sanded and any cut from the treatment of the callus would not have been infected at that time. It is also broadly consistent with the clinical record of Dr Bhowmik of 7 May 2024 when the doctor recorded that the applicant “went to his Podiatrist for diabetic foot check up and advised to see GP immediately due to concern of infection.”
A/Prof Shumack has not considered the erythema.
A/Prof Shumack has also not had the opportunity to consider the clinical records in respect to both the condition of the applicant’s feet together with the state of his diabetes prior to 4 May 2024 in circumstances where the applicant was having recurring issues with his feet and in particular the third toe on his left foot.
I also do not accept that the applicant sustained a cut to his toe as a result of the podiatry treatment on 4 May 2024 which became infected. As Mr Stiles submitted on behalf of the respondent, the clinical records and various reports of injury and claim forms contain repeated references to insect bites and cut/graze to the lower leg but no reference to the wearing of work boots and the development or treatment of a callus or the sustaining of a cut during the treatment of a callus.
The first mention of the applicant having developed a callus in the course of his employment whilst wearing boots and having sustained a cut as a result of the treatment of the callus appears in the applicant’s statement of 22 February 2025. The clinical records, reports of injury and claim forms do not contain any reference at any relevant time to any cut or abrasion of the left third toe.
Whilst I accept Mr Hanrahan’s submission that the applicant may have been unaware of the cause of the cellulitis, this omission occurs in circumstances where the focus of the applicant’s attention had been directed to potential infection of the third toe of the left foot since 4 May 2024 when the applicant attended on the podiatrist. The applicant was instructed by the podiatrist to attend upon his GP if the condition did not improve. He subsequently does as instructed and attends upon Dr Bhowmik on 7 May 2024 with an infected toe and according to the clinical record the applicant tells the doctor that he injured the “toe at work” but was unsure how “possible bites”. The doctor records no mention of any cut or other injury to the toe.
Whilst caution must be exercised when relying on clinical notes in evidence,[40] it seems unlikely in this instance that a doctor would have failed to record a direct injury to the toe whilst recording insect bites and that the doctor would also fail to record such a history on
8 May and 13 May 2024 when the applicant again provided a history of possible causes. Furthermore, the applicant did not report any such injury to the toe to Ms Gough or record any such history of injury in the claim form or report of injury which he completed.[40] See Nominal Defendant v Clancy [2007] NSWCA 349; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; King v Collins [2007] NSWCA 122
It is also unexplained how the applicant came to have the callus on the third toe of his left foot which was treated at the Hills Podiatry Centre on 25 January 2024. At this point in time the applicant had not as yet commenced employment with the respondent and had not purchased his work boots.
There is no evidence to support that the applicant sustained any other injury to his left third toe in the course of his employment with the respondent.
The applicant bears the onus of proving injury on the balance of probabilities. That onus has not been discharged.
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