England v Woolstar Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	England v Woolstar Pty Ltd [2023] NSWPIC 306
APPLICANT:	Phillip England
RESPONDENT:	Woolstar Pty Ltd
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	28 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits and medical expenses in respect of injury to left shoulder and thoracic spine; lack of contemporaneous report of injury; CCTV footage did not record injury; applicant claimed to have been mistaken as to date of injury; CCTV footage not available for revised date of injury; applicant continued to work for several weeks after date of alleged injury, until incident at home when ambulance attended; applicant had not returned to work after that incident; applicant’s credit in issue; applicant relied on four statements and statements of neighbours; applicant cross-examined on his statement evidence; consideration of Davis v Council of the City of Wagga Wagga; Mason v Demasi; Kooragang Cement Pty Ltd v Bates and Nguyen v Cosmopolitan Homes; Held – applicant unimpressive witness; contradictions between statement and oral evidence; applicant’s treating doctors not provided with correct history; applicant provided no history of injury to Ambulance Service, Wyong Hospital or Gosford Hospital; accepted that the applicant sustained an injury to his left shoulder, but not to his thoracic spine, on date alleged; the applicant did not establish that incapacity for work or the necessity for medical treatment resulted from injury; award for respondent.
determinations made:	1. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant, Phillip England (Mr England), was employed by the respondent, Woolstar Pty Ltd, part-time as a storeman. He commenced work for the respondent on 31 August 2009.
Mr England claims to have sustained injury to his left shoulder, left bicep/arm, and thoracic spine, deemed to have happened on 18 March 2021.
The respondent’s Safety Incident Notification (the notification) recorded that the incident was reported on 25 March 2021. It was recorded as left shoulder “sprain/strain”. No treatment was required. The applicant was not performing different tasks or alternative duties because of the injury and based on a medical certificate. He had not lost a full rostered shift.
The notification was classified, based on the answers to previous questions, as “No Treatment – Report Only”.
The incident had been investigated by Mr Andrew Hunt, team leader, beginning on 31 March 2021.
Mr Hunt recorded that the applicant had reported pain in his left shoulder. He said he had tripped while walking up the stairs to the canteen. He had grabbed the handrail as he tripped and felt pain in his shoulder.
Mr Hunt noted that Mr England continued to work and did not report the pain for three days. He worked the rest of his shift and the following day (recorded as Monday and Tuesday) without reporting the injury. He had the next day (Wednesday) as a rostered day off (RDO) and returned to work on Thursday, when he reported the injury. He had been able to continue his duties as normal without discomfort.
Mr Hunt recorded that the applicant wanted this to be a report only. He had provided a statement and withdrew it. There is also a notation that he was provided suitable duties for the remainder of his shift, but not when this occurred. The incident was signed off on 16 April 2021.

The applicant completed a Worker’s Injury Claim Form (the claim form) dated 16 June 2021. The date of injury was recorded as 22 March 2021 at 7:15am. The injury occurred when he was walking upstairs to the lunchroom.
Mr England stated that he tripped on the riser partway up the second half of a flight of stairs. He “grabbed both railings but twisted left shoulder and jarred my back between shoulder blades. Two weeks later I sneezed as I stood up from lounge chair at home and agonisingly hurt my back between shoulder blades.”
The injury was described as “left shoulder bicep tendon tear where it attaches to rota [sic: rotator] cuff and fractures T5/6 vertebrae”.
The applicant stated that he reported the injury to Mr Hunt on 25 March 2021. He stopped work on 5 May 2021. There was a delay in reporting the condition, as he “thought it would get better quickly and did not want to get stuck on WorkCover again”.
At that stage, the applicant was waiting for surgery to his left shoulder and a decision, after more tests, on treatment for his T5/6 vertebrae.
The Employer Injury Claim Form is dated 9 June 2021. The date of injury was recorded as 22 March 2021, at 7:15am, and the applicant first ceased work on 5 May 2021.
The respondent recorded that Mr England reported to Mr Hunt that he injured his left shoulder when he tripped walking up the stairs to the canteen.
The respondent is self-insured. Its claims agent is Employers Mutual Limited (EML).
On 16 June 2021, EML issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
EML disputed liability for the applicant’s claim for injury to his thoracic spine and left bicep muscle tear. It disputed that he had sustained injury; that employment was a substantial contributing factor to any injury; that he had a partial or total incapacity as a result of an injury; and that medical treatment was reasonably necessary as a result of injury.
The applicant requested a review of the decision on 12 July 2021.
The applicant was “disappointed” and felt the accident was being perceived as a fraudulent claim. His worsening short-term memory had been made worse by heavy medication. Having spoken again with family and friends and noting no activity on his bank account between 17 March 2021 and 21 March 2021, he was “suffering enough pain trying to continue work”, that he “bypassed my daily grocery shop and headed straight home”.
The applicant went on to state that Woolworths “will” have the video footage of the fall. He acknowledged it should have been reported sooner but he “truly thought it was just a sprain and would be better within days. Unfortunately it became more and more painful”.
The applicant requested that footage on 18 March 2021 and 19 March 2021, between 4:45am and 1:30 pm, be viewed. He also requested a review of footage on 20 March 2021 between 4:45 am and 11:00am; and on 22 March 2021 and 23 March 2021, between 4:45am and 1:30pm.
The response to the request is not in evidence, but it appears to have been made on 22 July 2021.
There is a further request for review made by the applicant, the date of which is illegible.
The applicant advised that, since his last request for review on 12 July 2021, he had been reminded by a neighbour that on arriving home from his shift early on Friday 19 March 2021, he told her he had hurt his shoulder and back at work the previous morning, Thursday, 18 March 2021.
The applicant stated he had confirmed with work that he had reported sick after an hour and went home sore on Friday 19 March 2021. (Emphasis in original). This “affirm[ed]” his previous request for video footage to be viewed, including that of 18 March 2021, but now archived. “Extreme anxiety and depression” had slowed his response.
On 3 September 2021, EML issued the applicant with a review notice. It referred to a request for review dated 29 August 2021.
The notice stated the applicant had requested to review CCTV footage from 18 March 2021. “[A]s advised in our letter on 22/07/2021 Woolworths had advised EML that footage is not available due to archiving processes…” The decision to dispute liability was maintained.
By letter dated 13 December 2021, the applicant’s solicitors requested on his behalf a review of EML’s decision.
On 22 December 2021, the solicitors for the respondent advised the applicant’s solicitors that the claim remained in dispute. They referred to the review notices dated 22 July 2021 and 3 September 2021.
EML issued the applicant with a work capacity decision (WCD) on 26 August 2022.
EML advised the applicant that he had been assessed as having current capacity to work full-time duties with his pre-injury employer. As there was no incapacity for work, he did not have an entitlement to weekly compensation.
The applicant lodged an Application to Resolve a Dispute (the Application) on 15 September 2022. He claimed that on 18 March 2021, he was walking up the stairs to the lunchroom when he misplaced his foot, causing him to trip. As he grabbed the railing for support, he jarred his back and sustained permanent injury to his left shoulder, left bicep/arm, and thoracic spine. He also claimed that, as a result of the trip and fall, he suffered an aggravation, acceleration, exacerbation or deterioration of a degenerative disease process to his upper back.
The Application claimed weekly benefits from 16 June 2021, ongoing, pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act). It also claimed, pursuant to s 60 of the 1987 Act, past medical expenses of $9,013.63.
The respondent lodged its Reply on 10 October 2022.

ISSUES FOR DETERMINATION

The parties agree that the following matters are in dispute:
(a)    whether the applicant sustained injury to his thoracic spine and/or left shoulder/bicep/arm arising out of or in the course of his employment;
(b)    whether employment was a substantial contributing factor to alleged injury;
(c)    whether the applicant has an incapacity for work as a result of the alleged injury, and
(d)    the reasonable necessity of medical treatment as a result of the alleged injury.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing by the Teams platform on 8 December 2022. Ms Grotte of counsel, instructed by Mr Joy, appeared for the applicant, who was present, initially by telephone. Mr Grimes of counsel, instructed by Mr Wilkins, appeared for the respondent. Mr Amprimo from EML also attended.
The Application was amended by consent to name the respondent as Woolstar Pty Ltd, and to claim a general order for medical expenses pursuant to s 60 of the 1987 Act. The parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) were $1,306 per week.
Mr Grimes made an application to cross-examine the applicant. This was opposed by Ms Grotte. One of the grounds on which the applicant objected to cross-examination was that it would need to take place by telephone.
For reasons that were provided at the hearing, and recorded, the respondent was granted leave to cross-examine the applicant. With the assistance of a family member, Mr England was able to join the Teams meeting, so the cross-examination proceeded by Teams.
Due to the time taken by the contested application for cross-examination, and the cross-examination itself, it was not possible to complete the hearing of the matter on 8 December 2022.
The matter was listed for further conciliation/arbitration hearing in person on 2 February 2023. Ms Grotte, instructed by Mr Joy, appeared for the applicant, who was present. Mr Grimes, instructed by Mr Wilkins, appeared for the respondent. Mr Amprimo sent his apologies.
Both counsel made their submissions, and I reserved my decision.
Unfortunately, due to a technical issue, counsels’ submissions were not recorded.
The matter was therefore again listed for submissions on the Teams platform on 14 April 2023. Ms Grotte, instructed by Mr Joy, appeared for the applicant, who was present. Mr Grimes, instructed by Mr Wilkins, appeared for the respondent. Mr Wilkins was excused during the hearing, as he had another commitment. I excused any representative of EML from attendance.
Mr Grimes was unable to complete his submissions in the time allotted, and the matter was again adjourned.
The matter was listed for completion of submissions on the Teams platform on 6 June 2023. Ms Grotte, instructed by Mr Joy, appeared for the applicant, who was present. Mr Grimes appeared for the respondent, instructed by Mr Wilkins, whom I excused at the beginning of the proceedings.
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 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)    the Application and attachments;
(b)    Reply and attachments, and
(c)    Application to Admit Late Documents dated 19 October 2022 and attachment, filed by the respondent.

Oral evidence

The respondent sought and was granted leave to cross-examine the applicant.

FINDINGS AND REASONS

Evidence of the applicant, Phillip England

Mr England has made several statements, including one that is undated, but refers to a date of 22 March 2021, at approximately 7:15, assumed to refer to the date of injury, in “conversation with” Mr Hunt. From other evidence, it is apparent that the statement was made on 25 March 2021.
The applicant stated that he was asked if he could authorise something as no team leaders were on the floor. He answered “no” and went upstairs to the lunchroom in search of one.
He walked up from the landing toward the lunchroom floor and tripped halfway up. His right hand grabbed the centre rail, and his left arm bent backwards on the left rail. He hurt at the time but felt sure he would be OK “in no time”. It was currently awkward to shower and raise his arm very high.
The applicant’s next statement is dated 29 December 2021.
He had previously sustained work-related injuries, being carpal tunnel syndrome, plantar fasciitis, and a lower back injury. He did not recall experiencing any significant or ongoing pain or restrictions in his mid-back, left arm or left shoulder.
He commenced work for the respondent on 31 August 2009, and was employed as a storeman, working 32 hours per week, with additional overtime. His duties included unloading and distributing food products; maintaining a safe working environment; and general duties incidental to working as a storeman.
On 18 March 2021, he sustained injuries to his mid-back, left arm, and left shoulder. Throughout the rehabilitation process, to protect his left shoulder and mid-back, he began overcompensating with his neck, and developed a consequential injury.
On the date of the injury, between 7.00am and 8.00am, he needed a team leader’s assistance. He went upstairs to the lunchroom. He was halfway up the second flight of stairs when he tripped on a step and fell forward. He threw both arms out to grab hold of the rails, and this caused him to twist his left shoulder while he also jarred his mid back.
He experienced shooting pain at both areas. Despite this, he decided not to report his injury, as he initially underestimated his symptoms and believed his pain would resolve. He had also been on WorkCover in the past and did not want to begin the process all over again. He struggled with maintaining his duties and found he had to rely heavily on his right arm to alleviate stress or pressure on his back and left shoulder.
He attempted to return to work the following day. After one hour, he told his team leader he was sick and needed to go home. His neighbour saw him come home early and asked if he was OK on the following day. He informed his neighbour he had injured himself falling up the stairs at work. They could further corroborate his injury.
On 25 March 2021, he was continuing to suffer chronic pain in his mid-back and left shoulder that had not responded to rest or medication. He decided to inform his team leader, Andrew Hunt, of his fall.
He and Andrew tried to find the CCTV footage of the stairs on the date of the injury. He accidentally told Andrew he thought he had fallen on 22 March 2021 and not 18 March 2021. The footage did not show him injuring himself.
He knew that Andrew did not believe him, which made him upset and frustrated. He told Andrew not to worry about it and left with the incident report.
The following day, he went to apologise to Andrew. Andrew asked him to provide the incident report, so he retrieved it from his locker for Andrew to re-submit. Around this time, he requested to remain in the department he was in, as it required lighter lifting of things that largely weighed under 4kg per box. He continued to struggle, as he is left-handed and had to strongly rely on his right shoulder and neck when lifting.
Throughout April 2021, he had ongoing pain in his mid-back. He struggled to bend to pick things up or twist his body when driving. Any jarring movements could significantly aggravate his lower back. He tried to rest and abstain from any movements that could worsen his pain.
On 5 May 2021, he was at home when he sneezed and felt excruciating pain in his mid-back. He became immobile, as if any small movement would result in his back going into further spasm. The pain was coming from the same area that had been causing restrictions since his fall. He knew he must have further aggravated the injury.
He called an ambulance and was taken to the emergency department (ED) at Wyong Hospital. “From here”, his memory was foggy, as he was “given a green whistle” and was on strong pain medication. He had an X-ray of his chest and left shoulder that did not reveal any notable pathology. He was discharged later that night as the medical practitioners believed he had influenza. He had been unable to return to work.
On 8 May 2021, he was admitted to Gosford Hospital, as he continued to suffer from shortness of breath and had ongoing pain in his mid-back and left shoulder. He had an MRI of his mid-back, which revealed a fracture at T5/6. This admission was “similarly blurry” due to the extent of his pain. He was discharged on 13 May 2021, with the recommendation to consult neurosurgeon Dr Jonathan Ball, and his general practitioner (GP).
He consulted his GP, Dr Gerard Martin, on 14 May 2021. He explained how he had injured himself at work and been diagnosed with a fractured vertebra. He informed Dr Martin that he had ongoing pain and weakness in his left shoulder, but no injuries had been diagnosed.
Dr Martin referred him for X-ray of his left humerus and ultrasound to his left shoulder. He had the X-ray later that day, but it did not reveal any significant injuries.
On 21 May 2021, he had an ultrasound of his left shoulder. It revealed a full thickness tear to the tendon, and a possible bone fracture and fragment. Dr Martin referred him to Physiophix.
On 31 May 2021, he consulted Dr Ball. Dr Ball examined the MRI, and said he had a stable fracture and would be best treated with rest. He recommended that he abstain from physiotherapy on his back.
He underwent physiotherapy to his left shoulder by Ms Hannah Creanor on 3 June 2021 and found it helpful in limiting some of his restrictions. He continued to consult her regularly.
On 25 June 2021, Dr Martin opined that he may have a SLAP (superior labrum and anterior posterior) injury of his left shoulder and referred him for MRI.
On 6 July 2021, he had an MRI of his shoulder, which revealed a prior dislocation and tears to his bicep tendon. Dr Martin referred him to haematologist, Dr Alison Lyons. She referred him for investigations, “and they came back clear”. She agreed his disabilities were caused by his fall.
On 20 July 2021, Dr Martin referred him to orthopaedic surgeon, Dr Ed Bateman, but he consulted with Dr Jay Joshi.
On 10 August 2021, he consulted with Drs Bateman and Joshi. Dr Bateman opined that he may have unknowingly dislocated his left shoulder in the fall. He recommended left shoulder arthroscopy. He was initially wary but decided to have the surgery, which helped his stress and anxiety.

Throughout 2021, his severe left shoulder and back pain meant he placed additional stress and pressure on his neck. He did not have any treatment for his neck, as he wanted to focus on treating his left shoulder.
He underwent left shoulder arthroscopy by Dr Bateman on 10 September 2021. He was advised to rest his shoulder for about five weeks before commencing rehabilitation. He became highly reliant on others, and increasingly over-reliant on his neck.
He continued to consult Dr Bateman and undergo physiotherapy with Ms Creanor.
Throughout 2021, he suffered ongoing pain in his mid-back and neck. His back flared up if he did any extended sitting, standing, or driving. He had difficulty twisting or bending, and sometimes struggled to get dressed or do household cleaning. These movements, and any repetitive lifting, placed extra pressure on his neck. He still overcompensated with his neck to minimise back pain.
He had ongoing restrictions in his left shoulder, especially when lifting, doing overhead activities, or lying on his left side. He remained highly reliant on pain medication to sleep and get through his daily duties.
He would like to clarify the reasons for providing the insurer with the wrong date of injury. Despite it occurring on 18 March 2021, he had informed it that the date was 22 March 2021. This was because, after his fall, he believed he had only strained some muscles and did not realise the severity of his injuries.
He did not want to go on WorkCover, as he had previously found the process extremely overwhelming. He believed if he rested and took some pain medication his symptoms would resolve.
He made an innocent mistake when miscalculating the date of his injury. He had requested on multiple occasions that the insurer review the footage from 18 March 2021. It later informed him the footage had been wiped. This was extremely distressing, as he was confident that if they saw the video of him falling, they would acknowledge his injuries occurred at work.
When he notified EML of his claim on 9 June 2021, he was suffering chronic pain and on strong medication. He believed the mistake reflected the distress and pain he was in and did not “alternatively point to the absence of my workplace fall”. His memory was so bad that his friends who were driving him to his appointments were having to remind him of his schedule.
He was confident his claims could be further corroborated by his treating doctors and specialists, "who I explained the mechanism for my injury when gaining treatment.” This was evident from Dr Martin’s report dated 1 December 2021 and Dr Joshi’s report dated 10 August 2021.
He did not believe he had the capacity to return to work, as he suffered ongoing pain and restrictions in his mid-back, neck, and left shoulder, which prevented repetitive lifting. His left shoulder was still extremely restricted, and he struggled to raise or lower his left arm. He struggled with the gentle stretches provided by his physiotherapist and had “huge muscle wastage”. He did not believe he had the upper body strength to return to work. His job felt like a gym workout, due to it being so physically demanding. He believed a return to work would only worsen each injury.
The applicant’s next statement, to provide “some further clarifications on some medical evidence”, is dated 13 May 2022.
He had read the entries in the ambulance and hospital records. It appeared they seemed to point towards “‘something’ or an incident of some sort occurring in April” to have caused his back injury problems. He wished to clear up that he had no injury of any kind in April.
He confirmed that he tried his best to manage the pain in his back throughout all of April. He had had pain in his back since he jarred it when he fell at work.
He noted he had advised various doctors that he was suffering pain in his back due to something occurring in April. He “honestly can’t understand why or even when I said this.” During this time, he was in a lot of pain and high on pain medication. His body was under a lot of stress, and this was probably why, when speaking with the doctor, he got the dates mixed up.
He was under a lot of fatigue, both mentally and physically, [so] that he wasn’t even taking in the conversations. At the time, he was honestly just doing his best to answer their questions. His GP had even explained to him that, given his body was under so much stress, he was not surprised that his mind at times would shut down.
Despite the medical records indicating that some sort of incident occurred in April, he wished to confirm and stand by his earlier evidence that he did not suffer any new incidents or injuries in April. The only time he suffered a major injury to his back was when he fell at work.
He would like to emphasise the impact of being under stress from this injury and how it affected him mentally. Due to both the stress and the medication he was on, his “thought process essentially went out the window”. Both his GP and his neighbour saw how he was during this time and would attest that “mentally I was just not there”. He was told by both that he often mixed up dates and events because he was struggling to cope with the stressors of dealing with this injury.
Given his poor state of mind, he genuinely believed his intention was to always tell these doctors he had a serious fall at work back in March and that was when he started having back problems/pain. Due to his deteriorating condition of being under medication and constantly being in pain, it appeared he accidentally advised the doctors that an incident occurred in April when all along he would have meant to have said that it occurred in March.
Ever since the accident, his memory had been terrible, and he had always struggled to get his mind in order. It was quite overwhelming seeing so many different doctors and repeating the history of his fall. He “genuinely when I was speaking to these doctors thought I was telling them about the fall I had at work”.
His neighbour, who took him to various appointments, often had to correct the doctors on the dates he told them because she knew he was telling them the wrong dates. He was not sure if they would listen to her, but she was always by his side assisting him to tell them the correct history.
Had he not been under such stress and daily taking medication, which caused him even more confusion/misunderstanding, he genuinely believed he would have been able to tell the doctors he had a fall at work that took place in March.
The applicant’s next statement is dated 20 June 2022. It addressed his latest WorkCover certificates of capacity (COCs).
He was recovering from shoulder surgery and struggled with compressed vertebrae. That generally consisted of discomfort through his entire rib cage, and he had poor range of movement in his shoulder.
He was “absolutely interested and keen to return to work” but had real concerns about being able to undertake the heavy-duty tasks he was employed to perform at Woolworths.
He was aware that his recent certificates certified him fit to work for 32 hours. He wished to clarify that the reason his hours were increased significantly recently was because he received a letter from Woolworths on 6 April 2022, explaining that it was an inherent requirement of his position to be certified fit to work for 32 hours per week, or risk his employment being terminated.
As a result, he told his GP, even though he was unable to undertake 32 hours work, to at least certify him for 32 hours so he would not be terminated. He was really scared that he would lose his employment and always planned to return to work once he felt his injuries would eventually resolve.
He was always interested to have his return to work hours increased, in hopes that he would not lose his job. However, given his current condition and that his role required repetitive[ly] pick[ing] and pack[ing] produce and distributing it around the store, he was not in a current state physically to attend to those duties 32 hours per week.
He had not worked since about May last year (2021). He struggled to have a fluid range of movement in his left shoulder and suffered from aching pain in his upper back. He found it difficult to breathe sometimes, due to his back injury.
His job was extremely physical, and he would be constantly lifting, bending, and moving heavy goods around the store. He was computer illiterate. He had never really used a computer before and had no admin experience.
The applicant’s next statement is dated 9 September 2022.
This statement aimed “specifically” to address the period of work from 18 March 2021 to 5 May 2021. To the extent of any inconsistencies between it and the applicant’s previous statements, the veracity of its claims was preferred.
Prior to his injury, he was employed part-time, working 32 hours per week, with additional overtime. He would nearly always pick up an extra shift on Saturday.
From the date of the injury on 18 March 2021 to 5 May 2021, he was persisting with work. He worked 8.5 hours per day, four days per week, including 20 minute breaks and a 40 minute lunch break.
Following his shift on 18 March 2021, he generally went to Coles for last minute shopping for dinner. Due to his severe shoulder and back pain, he went straight home.
The following morning, he attempted to return to work. However, after one hour of trying to maintain his duties, he told his team leader he was sick and needed to go home. His neighbour saw him come home early and asked if he was OK the following day. He informed his neighbour he had injured himself falling upstairs at work. “Thus, they can further corroborate my injury”.
He continued to work from 22 March 2021 to 27 April 2021, apart from RDOs. This was just over four weeks. He called in sick on 29 April 2021, as he was unable to cope with the pain. From 2 May 2021, he did not attend work.
Prior to his injury, his daily duties involved manually unloading food produce, distributing food products around the store, cleaning and maintaining a safe work environment, and general duties incidental to working as a storeman.
The insurer relied on Dr (Associate Professor) Shatwell’s report dated 19 July 2022. A/Prof Shatwell stated that he could not have injured his left shoulder and upper back on the date of the injury, as he would have had very severe pain that would not have allowed him to continue with any activity at work. He “completely disagree[d] with his opinion”.
During the four weeks following his injury, he forced himself to engage in work duties through the pain and restricted movement. He did not initially report the injury, as he thought he had just strained his shoulder and jarred his upper back.
He presumed his shoulder had popped back in because he did not find it was hanging loose. Therefore, he had no idea it was dislocated. He continued to work due to his strong work ethic and belief he had to “soldier on and not complain”. He thought his condition would improve. However, after a week, he reported the ongoing pain to Andrew Hunt. He was not believed as he accidentally provided the incorrect date when they were looking through the CCTV footage.
During this time, he was taking Endone tablets to self-medicate and was able to numb the pain to undertake his duties. He found two old boxes of this medication. He was also taking Codeine to try to cope with the pain.
Despite relying heavily on pain medication, he struggled to undertake his duties over those four weeks. He was finding it very uncomfortable to stand for long periods, and constantly needed to readjust his position. He also had extreme difficulty cooking and cleaning, showering, and dressing.
He was modifying his duties to cater for his pain and restriction. Following his injury, for the first two hours of the day, he was stock taking. He was then engaging in pick and pack to pallet. He was working on a much lighter pick route than a lot of other employees. He did not have to carry many heavy items. The most he would carry were four tins of oil, weighing 16kg each. He did his best to try to lift it himself. There was often a colleague who would pick this up for him, as they knew of his shoulder pain.
He was also over-relying on his right side, despite being left-handed, to take care of his left shoulder. He often experienced pain on his right arm due to significantly favouring [sic] this side. The employees in inventory management, including “Debbie”, knew he was experiencing shoulder pain and had to take longer in the mornings to engage in his duties. This reflected the difference in his duties from immediately prior to the injury to the four weeks following it.
During this period, he was also suffering discomfort and aching pain throughout his upper back since the date of the injury. Due to this, he was being extra careful to ensure he was lifting items correctly. He would ask for assistance when necessary for heavier items. However, he felt increased upper back pain when bending, twisting, and reaching overhead.
On 5 May 2021, he was at home when he sneezed and felt excruciating pain in his mid-back going into further spasm. The pain was coming from the same area that had been causing his restrictions following his fall. As a result, he knew he must have further aggravated his injury. He was forced to cease work due to this further aggravation.
On 26 August 2022, the insurer issued a WCD. He “completely” disagreed that he was able to return to full time work undertaking his pre-injury duties, given the continuing severity of his left shoulder and upper back injuries and restricted range of movement.
His current pain and restriction in his left shoulder and back made it difficult to walk for extended periods or lift any objects. Activities that involved bending, twisting, and standing for extended periods, all of which are integral to the position of storeman, aggravated his left shoulder and back pain. He had extreme difficulty dressing, washing, carrying out daily activities and driving, “let alone completing working duties”.

Applicant’s oral evidence

The applicant was asked in cross-examination whether he remembered the day of the week on which he was injured. He answered that he thought it was a Friday but did not know “off the top of my head, without going through the paperwork”.
Mr England was asked to accept that 18 March 2021 was a Thursday. He agreed that he worked a full day on the Thursday. He left after an hour on Friday, 19 March 2021. He did not report the injury that day. His team leader at the time of the injury was Andrew Hunt.
The applicant did not recall whether he worked on Saturday 20 March 2021. He recalled that he had plans to go to the vineyards on that weekend with his neighbour and friend, Sue-Anne (Ms Sue-Anne Sanig), whom he had known for 20 years. He thought they were to go for Sunday lunch, but they did not go.
The applicant was asked when he reported the injury, and he said it was “like a week or so later”. Asked to confirm that it was 25 March 2021, he said he did not have his paperwork and could not confirm that. He could not recall it. It was possibly Thursday, 25 March 2021.
Mr England reported the injury to Andrew Hunt. He said that he had told Mr Hunt he injured his back and shoulder. He had “tried to work back in my head” to the date of the injury, and thought it was the 21^st, which was incorrect. He may have reported it was the 22^nd.
The applicant agreed that, if he told Mr Hunt the injury happened on 22 March 2021, he must have forgotten that it happened before the weekend.
Mr England agreed that he was supposed to go to the Hunter Valley on the Sunday. He did not go because he was sore. He agreed that, despite having cancelled the trip, he still considered the injury occurred after the weekend.
The applicant was asked whether despite the fact he had reported the injury to his neighbour on the Friday, he still considered it occurred on the Monday. He responded that she had reminded him they were going to the vineyards. He did not recall it.
The applicant was asked whether he knew, on 22 March 2021, that he had cancelled his trip. He responded that he did not recall it, as he was on some heavy medication. He had started taking it probably on the day he went home sick, after one hour, “the next day”.
The medication to which Mr England referred was his ex-partner’s Endone, which he still had from “stuff in my storage”. Their relationship ceased on 1 November 2008. The Endone was “probably 10 years expired”. His partner had had a spinal fusion, which occurred before they met. They met in 1992. He did not think his partner had ceased taking Endone during their relationship.
The applicant found two full packets of Endone. He did not know how many tablets were in each, he assumed 30, but “I don’t know”. He could not recall how long he took them and did not know that he even took them all.
The applicant agreed that he started taking Endone from when he went home from work, which was the Friday. He was taking generally one a day, but some days he would not. He tried not to. He did not know the dosage of the tablets – “I was just taking the risk”.
Mr England agreed that the Endone was affecting his memory. He remembered reporting injury to his left shoulder and thoracic spine to his employer but did not remember the date until he “looked back on the paperwork”.
When he was asked if he would be surprised that he only reported injury to his arm, he answered “I don’t believe that’s true”. He recalled writing a report to Mr Hunt. He did not have the report in front of him, but as regards his thoracic spine, “I didn’t hear you (counsel for the respondent) read that out”. He was asked if he remembered reporting injury to the thoracic spine and answered, “I don’t remember much of it”.
The applicant remembered watching the CCTV footage with Mr Hunt. They looked at the footage for the date that he thought was the date of the accident. He did not recall seeing any evidence of the injury on that day’s footage. They looked back at the Saturday, which was the previous day he worked, “so that was the Monday back to the Saturday”.
The applicant did not see any evidence of the injury on the CCTV footage for the Saturday. He did not recall looking another time for another day. He was asked if they looked five times over multiple shifts and answered “It was five times all up, but I don’t recall. It was probably the Monday and the Saturday, that’s all I recall. Different timeframes.”
The applicant said it was either on the Thursday, if that was the date he reported it, or the next day, that they looked at the CCTV footage. He was asked if they looked at 22 March 2021 and the Saturday but he did not recall. He “got cranky, screwed up the report and then gave it back to him the next day and apologised.”
Mr England agreed that, despite having to cancel his trip to the Hunter Valley, he did not realise that the injury did not occur that week. Despite reporting the injury to his neighbour the previous week, he did not realise it happened the previous week. She cancelled the trip, and he did not even remember making arrangements. He knew they were going, and he did not know when, “but it happened to be at the time”.
The applicant gave evidence that he continued to take Endone on a daily basis after he reported the incident on 25 March 2021. He was asked if he got any medical treatment between reporting the incident and having to go to hospital on 5 May 2021. He answered that he saw Dr Martin in the weeks following the accident and did not remember the date. He was “sure” he told Dr Martin about the injury but did not have the paperwork with him. He did not remember telling him.
The applicant was asked if he remembered telling Dr Martin he was taking Endone for his pain. He “felt it was illegal” and did not mention it for a long time, knowing it is a controlled drug “or whatever”. He did not tell anyone he was taking it. He did not remember how many times he saw Dr Martin before 5 May 2021.

The applicant did not recall if he took any time off work between the injury and 5 May 2021. Without his “paperwork in front of me”, his memory was not good. He did recall the day after, when he went to work for the first hour.
The applicant drove to work every day, a drive of about 15 minutes. He was asked if his evidence was that the Endone was so significant that it affected his memory, but he could drive to work. He answered that he took the Endone in the afternoon when he got home. He did not take it in the morning.
The applicant was asked if his memory was fine in the mornings, when he was not affected by Endone, and answered “No, not really. My memory is never good.” His memory was not good in general, irrespective of the Endone.
Counsel for the respondent put to the applicant that the injury at work did not occur on 18 March 2021 or at all. He responded that that was incorrect. He did not believe it was correct that he did not report the back injury to Mr Hunt.
It was also put to the applicant that he did not inform Dr Martin of his injuries when he saw him on 22 March 2021 or 21 April 2021. He did not recall. He disagreed that he had no back pain whatsoever until he was taken to hospital on 5 May 2021.
The applicant was asked what happened on 5 May 2021. He stood up from his lounge chair and sneezed and was in agony. He “couldn’t sit, stand, whatever”. He could reach the phone and rang triple-000. The pain was between his shoulder blades.
The applicant did not recall whether he told the ambulance officers of his injury at work in March 2021 – “that green whistle is good stuff”. He did not remember that trip. He “kind of” remembered what happened before the green whistle.
The applicant was asked if it would surprise him that he had told the ambulance officers he only had a two-day history of back pain. He answered, “I apparently told everyone I hurt myself a couple of weeks ago, and it could have been six weeks.” He did not recall telling the ambulance officer he had a two day history of back pain. He did not recall denying he had any trauma to his back.
The applicant was asked whether it was the case that he only had a two day history of back pain on 5 May 2021. He responded, “I don’t recall telling the ambulance people anything.” It was “incorrect” that his back pain only began in May 2021.
The applicant remembered the ambulance pulling up at the retrieval bay at the hospital, but not anything after that. It was “possible” that he had been drinking the night before 5 May 2021, but he did not remember. There was nothing eventful the night before. “Should I?” remember it.
The applicant was then asked about the Wyong Hospital triage notes, which said he had alcohol last night, and a history of alcohol abuse. His response was “How would triage know that?” Counsel for the respondent suggested it was because he had reported it, to which he responded “OK”.
The applicant did not remember having alcohol the night before he went to hospital, “But I most likely did.” He did not recall telling Wyong Hospital he had only had pain in his left shoulder since the day before – “they also sent me home with influenza, which I didn’t have. So, I have no confidence in Wyong Hospital”.
The applicant did not recall telling Wyong Hospital he had no trauma to his back. He went home after Wyong Hospital. Two days later, he had a friend drive him back to the hospital and “they apparently transferred me to Gosford, and I told visitors that I was still in emergency for three days, and I hadn’t been in emergency at all.”
The applicant did not remember going to Gosford Hospital. When he woke up, he was in that hospital. He did not remember telling Gosford Hospital he had no history of spinal trauma. He did not recall whether he was still affected by Endone, or whether he was still taking it in May 2021.
The applicant did not remember attending Dr Martin on 14 May 2021. He did not remember when he told Dr Martin he had injured his back at work. He did not recall whether he told Dr Martin before May, “without my paperwork in front of me”.
Counsel for the respondent asked the applicant if it was the case that, when an inconsistency in his evidence was put to him, he merely reverted to “I can’t recall”. The applicant answered that he was “being honest”.
The applicant was asked if he had any investigations of his left shoulder or spine before May 2021. He answered “Left shoulder, no. Before May ’21? I don’t know. When – whether there is an MRI before that, I don’t recall.”
The applicant was asked why, if he was in such pain that he was taking Endone, he would not have sought a referral for investigation from his GP. He responded that everything was so sore after a couple of weeks that he realised it was not going to heal, and that was when he sought help.
It was put to the applicant that he did not report the injury to his GP until after he went to hospital in May. He thought that was incorrect. He did not recall the first time Dr Martin gave him a COC saying he could not work.
The applicant had never had an injury to his left shoulder before March 2021. He had never had a prior dislocation.
The applicant was asked whether his statement dated 29 December 2021 referred to him taking Endone. He did not recall. Asked if, had he taken Endone immediately after the injury, it would have been expected that he would have recorded it in his statement, he said he thought he was doing something that might have been illegal, so he did not tell anyone. He had since found out it was not illegal, “so I should have opened up”.
The applicant thought it was his doctor who finally told him Endone was not illegal. He had only told his doctor “a matter of months ago”. He then said it might have been “that specialist with a horrible name that I saw for Woolworths…I think it was him that I told…Shit – something – he’s got a horrible surname…” He told the doctor the medication was probably 15 years old, and he did not know if it was expired. The doctor said it would have been all right.
“After that”, the applicant told his GP about the Endone. He did not want him to stay on the Endone that Wyong – Gosford Hospital had put him on. He changed it to something similar but not as bad. He agreed that it was probably Targin.
He did not tell Dr Martin, when he was prescribing medication for his pain, that he was already taking Endone, because he thought the Endone from his “ex” had already run out. The hospitals put him back on Endone when he was in Gosford Hospital.
The applicant did not recall when the Endone ran out. It was “two packets worth”.
Counsel for the respondent put to the applicant that Dr Martin prescribed Targin on 16 June 2021 and asked whether the applicant told him he was taking Endone. The applicant was “off my tree on Endone. I don’t recall any of it. I don’t remember much at all.” He “would say…the other stuff would have run out by then.”
The applicant was asked, if he started taking Endone on 19 March 2021, when it ran out. He “wouldn’t have a clue. I don’t know, sorry”. He agreed that he noticed a significant increase in pain when it ran out. He did not recall whether he reported that pain to anyone.
The applicant was asked if he noticed an inability to perform his work when the Endone ran out. He responded that he had some paracetamol, and that helped him get through that time. He started taking it when the Endone ran out but did not know when that was. He did not recall whether his duties were harder or easier when he took paracetamol rather than Endone.
The applicant agreed that his co-workers helped him perform his duties after the injury. Asked who helped him, he said “Anyone that was in the aisle”. If he was packing the pallet, he would ask anyone that was packing near him if they could put the heavier stuff on for him, and they were quite willing. They all helped out that way.
The applicant was asked if he told them it was because of his injury. He “probably just told them it was none of their business, but I probably told them I was sore.” He was asked if he remembered telling them why he needed help. He responded “…that I was sore. I didn’t need to give them the information, detail.”
The applicant did not remember anyone specifically that he asked for help. He worked with 200 people on a day shift. He did not recall who it was.
It was put to the applicant that, despite having difficulties with his work, he did not seek a WorkCover certificate from his GP. He answered that he was hoping everything would heal. He grew up [transcribed as “nearer”]. “We didn’t whinge if we hurt ourselves. You plodded through and you made things work and did the best you could. I grew up…without whingers in my family.”
The applicant said he may have been seeing his GP when he was taking Endone but could not recall without the information in front of him. He was possibly seeing his GP when he was seeking help from his colleagues. He did not recall whether, despite taking Endone and needing help with his duties, he obtained a certificate from his doctor. He was raised to “keep working, and don’t whinge.”
The applicant was asked if he told the insurer the wrong date of injury because he considered he had only strained some muscles and did not realise the severity of his injuries. He said he did not think that was the reason. He thought he had jarred his back and strained or sprained his shoulder. It was a couple of weeks later, when it was still really bad, that he realised the severity of his injury was greater.
The applicant agreed that he was taking Endone from the day after the injury. He did not think his injury was severe if he was required to take Endone. He “didn’t think about it. I just knew I had them in the cupboard.” He agreed he took it for the pain, and the pain in his mind was great.
It was put to the applicant that he could not then have thought his injury was a mere strain. He answered that over the time, and it was not getting any better, was when he took action.
The applicant agreed that he reported the injury to the respondent well before he completed the claim form. He was asked if it was much more likely that, if he reported the injury within a week, he would have remembered the date of the injury. He answered “No. Sorry. I didn’t”.
The applicant was asked whether Dr Martin was happy to provide him with a certificate [for work] that he had told him he could not perform. The applicant responded that he completed it for him because he requested it.
The applicant was asked if he told his GP he could not do 32 hours of work but wanted to be certified to do 32 hours of work. He responded that he “probably told him I would struggle with it, but I couldn’t lose my job either.” He did not recall what Dr Martin said. He did not object to it.
Counsel for the respondent put to the applicant that, despite being in great pain and taking Endone, he continued to do largely his pre-injury hours and duties. He answered that he tried to keep the hours up. He was not so good with the duties but did his best. He agreed that, despite being in great pain, he never asked for a certificate from his doctor, until he “got the first one”. It was only after he went to hospital on 5 May 2021 that he ceased work.

NSW Early Contacts – Employer Form

An NSW Early Contacts – Employer form (early contacts form) was completed on 11 June 2021.
The date of the injury was recorded as 22 March 2021, at 7:15am. The location of the injury was recorded as “trunk and limbs”, and the mechanism of injury as “falls on the same level”.
The injury was described as “shoulder strain. Fractured two thoracic spine and left biceps muscle tear.” The incident had been notified to the employer on 25 March 2021, and the claim was received on 9 June 2021.
The applicant had stated that he tripped while going upstairs to the canteen and injured his shoulder and back. He had grabbed the rail as he tripped, hurting his left shoulder.
The applicant had rung the employer on 20 May 2021, and “stated [the injury] was about 2 weeks prior to the 5/5/21.” It was not reported at the time but reported to the team leader three days later on 25 March 2021.
During the investigation, the applicant was shown footage of 22 March 2021, which would have been the date of the injury “by his accounts.” It showed nothing to the effect of tripping.
The applicant said that perhaps it was the day before that. That day was checked “and nothing and then the days on the either side and nothing was seen” of the applicant tripping.
At this stage, the applicant took his statement, screwed it up and “throw it” [sic]. He continued to work normal duties with no restrictions from 22 March 2021 to 30 April 2021.
The applicant reported on 6 May 2021 that he got very bad pain when he got off the lounge at home and had been taken via ambulance to Wyong Hospital but sent home with a negative Covid test.
The applicant was driven to Wyong Hospital the next day and transferred to Gosford Hospital, where he remained for one week. They did an X-ray of his shoulder and MRI of his thoracic spine.
The applicant was referred on 23 May 2021 to his treating doctor with an avulsion fracture of his left humerus. He was advised by the “house doctor to start physio.”
The applicant had been referred for a bone density scan and to a senior spinal surgeon at Royal North Shore Hospital (RNSH), who advised that he had compressed T5/6 fractures. He had a follow up appointment with the NTD (nominated treating doctor) following the bone scan on 25 June 2021. He had been referred to haematologist Dr Lyons.
It was noted that the applicant had completed his shift. He had two prior injuries, to his lower back and to his back.
The respondent recorded “Liability Concerns: Yes, events do not add up, footage cannot be seen to what TM (team member, the applicant) alleges. To review with TS (perhaps technical specialist) in line to RE (reasonably excuse) or decline outright.”
There is a record of a telephone conversation between an EML representative and the applicant on a date that has not been recorded but is assumed to have been on or shortly after 11 June 2021, as the early contacts form was due for completion on 15 June 2021. It is not my intention to refer to all the conversation.
The applicant stated that he was on the second half of the steps after the platform and tripped on the step. He “didn’t fall to my knees or anything but rather was still standing”. He grabbed the left handrail and twisted his left arm/shoulder and jarred his back.
The applicant managed to get to the top of the stairs and thought “shit that hurt”. He didn’t think too much of it as he was still standing and didn’t fall over “etc”.
The applicant worked his normal hours that day and for the next two weeks. His shoulder was more sore than his back and he continued to manage work “and just taking things a bit easier”.
The applicant did not remember the date when this happened. It was “like six weeks ago”. It would have been about two weeks prior to 5 May 2021, as that was when he went to hospital. He worked Monday, Tuesday, Thursday, and Friday, and “the odd Saturday”.
He did not report the incident straight away, as he “didn’t want to get caught up in the WorkCover thing” and thought it would just get better and “I’ll be right”.
The applicant talked to his team leader, “Andrew”, three to four days after the accident to report it and filled out a report with him. He looked through the footage when it might have happened. The applicant looked through it with him and noticed it was intermittent and not rolling.
The applicant felt that, whilst Andrew did not say it, he did not believe him. They were not able to find the exact date or time of the accident. He screwed up the report, said “let’s forget about it”, and put it in his pocket, later putting it in his locker.
The next day the applicant apologised to Andrew. He asked if he still had the statement, and he gave it to him. They reported it as a report only. “That was the end of that.”
On 5 May 2021, the applicant was at home. He stood up from the lounge, sneezed at the same time, and felt “sudden agony with my back”. The pain was in the middle of his back at the bottom of the shoulder blades.
The applicant kept standing as he could not move. He rang for an ambulance, which turned up about 15 to 20 minutes later, and he was taken to Wyong Hospital. He could not remember if he was on a stretcher, but did not think so, as they would not have been able to get it out the front door.
The applicant could not remember too much. He thought he was given the green whistle, as “this rings a bell”.
The applicant was taken to the ED. He remembered being wheeled in, but not what happened there. They sent him home with symptoms of influenza. He could not remember if they did “scans or anything”.
At home that night, the applicant was still in a lot of pain. It was on about 7 May 2021 when he got his friend to drive him back to Wyong ED. He did not remember anything that happened, but he was transferred to Gosford Hospital on 8 May 2021.
For three days, he kept saying he was in ED, but his friend said he was in a ward. He was on Endone every four hours, “so was playing my mind and recollection of events.”
The applicant was at Gosford Hospital for a week. They did “scans etc”. Whenever he had to get in or out of bed, his back was in agonising pain. He was discharged on 13 May 2021.
There were no witnesses to the incident that the applicant saw, “up or down”. He did not take much notice as it was a small accident at the time. He had had nil prior injuries to the back or shoulder.
At the time of the accident, the applicant’s back pain was not as bad as his shoulder. He had a sore back, at around the bottom of his shoulder blades. His left shoulder was more sore at the time. It felt like a sprain, similar to “if you fell and landed on your wrist etc.” He was cautious with it and gentle with how he did his work. He worked in a lighter section, so was able to manage.
At home, his back was more sore than his shoulder after he sneezed. He was “frozen in agonising pain”. He walked about six feet to unlock the door for the ambulance workers. The pain was still at the bottom of the shoulder blades. He did not even think about his shoulder after he sneezed, because of the “agonising” [sic] he was in with his back.
After being discharged the second [time] he was more comfortable with his back getting in and out of bed after about two to three days. His shoulder was still sore and was as sore as it had been since the accident.

Evidence of Andrew Hunt

Mr Hunt has provided a handwritten statement dated 11 June 2021.
On 25 March 2021, the applicant reported that he had hurt his shoulder while walking up the stairs. He said he had tripped while walking between the landing and the top of the stairs.
As part of his investigation, he watched the CCTV footage of the stairway at the time the applicant said the incident happened. The footage showed the applicant walk to the top of the stairs without tripping.
He asked the applicant if the time and location were correct. He said yes, so he showed him the footage. He then said it must have been the previous break.
They watched the footage of the applicant walking up the stairs on the previous break, and he did not trip while walking up that time either.
The applicant changed the time two more times, while sitting next to him, and he could not see anything on the footage.
In total, they looked at five different times on the CCTV footage, across multiple shifts. Each time, the applicant walked up the stairs without tripping. He got agitated and said don’t worry about it and screwed up his statement and left the office.

CCTV footage

The respondent relied on CCTV footage, which is not date or time stamped, but according to the Reply its date is 22 March 2021.
Some employees, including Mr England, were recorded ascending and descending the stairs. The footage did not show him tripping or visibly injured.

Timeline of applicant’s hours and duties

On 8 August 2022, Ms Taylor Ailabouni of EML sent an email regarding the applicant to the respondent’s solicitors.
The email was “confirming as follows”:
·        18 March 2021 – worked normal hours and duties
·        19 March 2021 – left early as sick (not specified what the sickness was)
·        20 March 2021 – worked normal hours and duties, as well as overtime
·        Worked normal up to 27 April 2021
·        28 April 2021 – doesn’t work
·        29 April 2021 – sick (not specified what the sickness was)
·        30 April 2021 – worked normal hours and duties, as well as overtime
·        1 May 2021 – worked normal hours and duties, as well as overtime
·        2 May 2021 – doesn’t work
·        3 May 2021 – called in sick (not specified what the sickness was) and went to doctors
·        4 May 2021 – left message going for Covid test and called in sick
·        5 May 2021 – doesn’t work
·        6 May 2021 – called in sick (not specified what the sickness was)
·        7, 8, 9 May 2021 – days off
·        10 May 2021 – called in sick (not specified what the sickness was)
·        11 May 2021 – absent, no call from TM
·        12 May 2021 – day off
·        13 May 2021 – in hospital.
Ms Ailabouni confirmed that the applicant had not worked at Wyong RDC since 1 May 2021.
Normal hours were 7.5 hours a day. Normal duties included two hours of cycle counting and 5.5 hours of picking. The applicant worked his normal duties during this time.

Evidence of Primary Connect

Mr Tim Patterson, asset protection specialist NSW, of Primary Connect, wrote to the respondent’s solicitors on 14 October 2022.
He advised that the current security specifications for existing Primary Connect distribution centres to have their CCTV footage remaining on their servers was 30 days. However, for new distribution centres, there was a requirement of 60 days.

Evidence of Sue-Anne Sanig

Ms Sanig is a “close neighbour” of the applicant. She has made three statements, the first of which is dated 18 March 2022.
She noticed the applicant returned from work several hours earlier than usual on 19 March (no year is stated, but assumed to refer to 2021), so she called in to see if he was OK. He informed her he had tripped on the steps at work the day before and was in too much pain to continue that day. “It was clear his back and shoulder where causing him som considerable pain” [sic].
It was impossible the accident happened on 22 March, as she saw him on 19 March regarding his fall the previous day.
She was informed on 5 May that the applicant had been taken to hospital by ambulance in severe pain.
The applicant was again taken to Wyong Hospital on 7 May. He was later transferred to Gosford Hospital where he spent several days. She visited each day, taking personal items and collecting his washing “etc”. He was on strong medication for pain. Most of the time he did not realise she had visited.
Leading up to the applicant’s surgery, she took him to all medical appointments. She also took him to RNSH to visit the spinal specialist. She attended him each day.
Following the surgery, she again took the applicant to all medical appointments. She prepared meals and aided him in showering “etc” and general tidying. She removed the pain relief canula from his shoulder. She continued taking him to physiotherapy for a couple of months, and wherever he needed to be, along with doing his shopping and taking care of his home.
She had attached copies of awards to show she was a person of good character.
Ms Sanig’s second statement is dated 9 May 2022. She had been asked to provide the statement by the applicant’s solicitors.
Following his work accident on 18 March 2021, the applicant was taking Endone, which was his ex-partner’s, for several weeks. This led to him being in a confused state. Most days he did not recall she had visited or know what day it was.
Leading up to the applicant’s first admission to hospital on 5 May, he was in a great deal of pain and could not move. Both his left shoulder and upper centre back were causing him great discomfort. He had over time become very limited in his movements.
The applicant was again admitted to hospital on 8 May, for severe back pain and the inability to lift his left arm. At this stage, he could barely move due to pain. She visited the next morning. He was unaware he had been taken from Wyong to Gosford Hospital. When doctors or nursing staff asked him questions, he looked to her to explain what they had said. She visited each day, and he did not remember she had been there the day before.
When the applicant was released from hospital on 13 May she collected him and was part of the discussions with medical staff.
She attended all medical appointments and needed to repeat things several times. It was her responsibility to keep a calendar of the applicant’s appointments and take him to them. She also made a list of times medications were to be taken.
The applicant’s mental state became one of deep depression and anxiety. He would only leave his house for doctors or “physio”. Living just across the street, she was able to do all his shopping and collect prescriptions “etc”.
Ms Sanig’s final statement is dated 25 August 2022.
The reason she remembered visiting Mr England on 19 March 2021 is that was going to be the first weekend without her foster child. She and Mr England had made plans to visit the Hunter Valley. “Naturally”, they had to be cancelled due to his accident.

Evidence of John O’Loughlan

Mr O’Loughlan is the applicant’s landlord and lives next door. His statement is undated.
On 19 March 2022 [sic] he went to see the applicant to advise that he was looking at having pest spray carried out on the property.
On speaking with the applicant, he noticed he was “not right” and seemed to be in a lot of pain, scattered and not comprehending their discussion, as he discussed the dates for the house to be sprayed. The applicant kept mixing the dates and times up. He sat with him for about an hour, as he was concerned for his health and mental wellbeing.
After the conversation he decided not to have the pest spray done, due to the applicant’s poor health, “not comprehending our conversation.”

Medical evidence

Toukley Family Practice

On 1 June 2020, the GP (it is assumed Dr Martin) recorded back pain. The applicant had had MRIs in February 2012 and August 2017. He had no tenderness/good ROM (range of motion), and pain with right lateral rotation.
The doctor recorded that “at work you have crouched down for shelving”. The applicant suffered with occasional and ongoing pain. The pain was worse as it was affecting his left hip, “onset 1 week”.
There was no obvious injury or sprain. The applicant felt it was related to repetitive strain at work. It had improved over the last week, “seems almost back to normal”. The applicant had “avoided any strain at work (& at home).” He needed an absence from work for one shift. A COC was issued.
On 29 June 2020, the GP recorded that the applicant’s left hip was a little sore. It ached with work shoes but was helped with orthotics. He requested to be signed off and back to normal. A COC was issued.
On 9 November 2020, the applicant was diagnosed with depression. He was to increase Pristiq.
On 22 March 2021, there is a record of “Action added – ‘Specsavers’ on 22/03/2021.”
On 21 April 2021, Ms Kiara Bassam recorded a request from the applicant for a telephone consultation for a script, as he would run out before the doctor’s next available appointment.
On 14 May 2021, the GP recorded that the reason for the applicant’s visit was “vertebral fracture”. He had tripped upstairs at work, “Hurt L hurt & back”, “jarred his back”, “Pathological fracture”. Investigations were requested.
On 26 May 2021, the GP recorded that the reason for the visit was referral letter and arm pain. The applicant was referred to Dr Lyons. He “needs appt WC.”
On 2 June 2021, the GP recorded vertebral fracture and muscle tear. The applicant had seen the neurosurgeon, who “advised 95% it was osteoporosis”.
On 15 June 2021, Dr Martin completed a questionnaire requested by EML.
Dr Martin diagnosed T5/6 vertebral fracture, soft tissue trauma of the left biceps, altered ROM, and radiculopathy confirmed. This was consistent with the applicant having sustained a fall while going upstairs.
There were no symptoms or history of “above” prior to the fall. There were no pre-existing conditions.
The applicant was to follow up with a specialist. He had no capacity for work. It was possible he may be fit for light duties at “about 8 week mark.”
On 25 June 2021, the GP recorded that the applicant felt his memory was adversely affected “likely overwhelmed recent events.” His affect had improved.
On 23 August 2021, the GP recorded anxiety. The applicant was worried about upcoming surgery and compromised sleep.
On 31 August 2021, the applicant had ongoing left arm pain. Surgery was awaited and physiotherapy attended. They discussed work capacity.
On 5 October 2021, the applicant’s elbow pain was minimal. He had back pain – “still sleeps sitting up”. His mental health was “doing OK”. His post osteoporosis progress was better than he expected.
On 5 November 2021, the GP recorded workers compensation, shoulder injury and anxiety. There was an ongoing legal case, as EML had not accepted liability, “stress escalating and anxiety.” The applicant had no current capacity for work.
There was a “chat” about the applicant’s mental health. They discussed MHCP (mental health care plan) and medication. The applicant committed to “soldiering on.”
Dr Martin reported to the applicant’s solicitors on 1 December 2021.
Dr Martin stated that the applicant suffered a fall at work on 18 March 2021. He opined that the fall resulted directly in fracture of thoracic vertebrae T5 and T6. The applicant also suffered extensive soft tissue tears of his left shoulder and left upper arm from this fall.
On presentation to Dr Martin “at the time” the applicant appeared very distressed. “He was in a lot of pain and seemed very overwhelmed by the trauma, subsequent clinical and beurocratic [sic] follow up after his fall.”
Once it was established clinically that the fall resulted in the applicant’s fractured spine, shoulder and arm injury, effective management was initiated.
This process involved admissions, both emergency and elective, to Wyong Hospital, Gosford Hospital, RNSH, Dr Martin, Dr Bateman, Dr Ball, Dr Lyons, advice regarding mental health intervention, physiotherapy, “also review correspondence with work and Workers Compensation”. “Added to this the very extensive medical tests and ongoing burden of very severe pain were ever present.”
“Within this context”, the applicant needed to recall all the details of his accident, “and he simply was not able to achieve 100% accuracy pertaining to the history of fall.”
Dr Martin had attended to the applicant since March 2018, and he did “not doubt the readability [sic] of his fall at work”, and clinically its direct relationship to the “negative sequelae of fractured spine and left shoulder/arm injury.” The applicant had “always acted in good faith on any and all presentations” to him.
This had been an extremely stressful series of events for the applicant, involved a lot of severe pain, anxiety regarding his trauma, and possible diagnosis, “compounded by tremendous logistical burden. Expectations that his recall could be completely accurate are unfair and I perceive as being dismissive” of the applicant, “in his state of distress and need”.
Dr Martin opined that it may actually be unusual for a worker to endure a fractured spine and extensive shoulder/arm injury and achieve the desired capacity the applicant had reached at present.
Dr Martin did not believe or suspect there was any other genesis to the injuries than the fall at work. The applicant had always presented as an “honest, decent, kind and truthful individual.” He had never been oppositional to encouragement to proceed with limited capacity.
Dr Martin opined that it was “unquestionable clinically” that the applicant’s injuries were the direct result of his fall at work on 18 March 2021. “It may be of little surprise that he got the dates wrong within the context of a worker, keen to return to work and finding himself in a distressed and pained state.”
Dr Martin reported on 4 May 2022, to “state that there is a discrepancy regarding Phillip’s reporting of his dates and actual dates of injury”.
When the applicant presented for follow up of “known back and shoulder injury, he was in a very stressed state” and “compelled to seek multiple appointments with varied specialists”. He had also been advised of possible diagnosis of pathological fractures, “this is bone fractures secondary to cancer spreading. This situation was further complicated by the presence of significant pain”.
Dr Martin did not think it was reasonable to expect the applicant to recall his dates exactly. He felt “strongly that focusing on this detail is not helpful, an unnecessary beurocratic [sic] burden”, and did not in any way negate the validity of the overall history and need for medical intervention.

NSW Ambulance

The records show that on 5 May 2021 the ambulance service responded to a case noted as “chest pain, clammy”. The applicant’s pre-existing history was recorded as alcohol abuse.
The ambulance officer recorded a two day history of constant right sided thoracic region back pain with intermittent spasms and left bicep pain.
The applicant denied any recent trauma to the area. He had self-administered one Panadol and one aspro with nil relief.
The applicant was ambulant to the stretcher. He was talking in full sentences. There was nil obvious trauma. He was given ibuprofen and methoxy with good effect. He appeared comfortable and in nil distress whilst on the stretcher in hospital.
The applicant’s pain was described as cramping, radiating to no other area, aggravated by coughing and movement, relieved by lying still.

Wyong Hospital

The applicant presented at Emergency Outpatients on 5 May 2021. He was brought in by ambulance with right sided back pain, intermittent in nature, and associated bicep pain, “denies trauma, worsening on movement”. He had taken methoxy, ibuprofen and 1g paracetamol with moderate effect. “ETOH (alcohol) last night”. There was a history of alcohol abuse and depression.
It was recorded that the applicant had shoulder region pain. However, the hospital’s letter to Dr Martin stated that he presented with “pain, back”.
The summary of care recorded that the applicant had had left shoulder pain “since yesterday”. He had post thoracic pain – intermittent. “Associated Lt shoulder/biceps pain, worse with movement”.
The applicant had had two aspirin at home, “given further 100mg by ambos”.
The impression was recorded as “shoulder and thoracic pain – MSK (musculo-skeletal) -? Rotator cuff Lt shoulder”. Left shoulder showed nil significant. The applicant’s left arm was placed in a sling. He was to follow up with his GP for review and may need ultrasound or MRI if it was not settling.
The applicant re-presented on 7 May 2021 and was assessed at 11.00pm. He complained of thoracic chest/back pain. He reported thoracic back pain with radiation into the front of the chest since Wednesday. He also had shoulder tip pain, “B/L, L>R” (bilateral, left more than right).
The applicant denied trauma or injury – “nil vigorous exercise, nil straining/lifting”. He reported nil improvement and was struggling to move and not able to sleep. He had little relief from Panadeine Forte.
The applicant had “actually had quite easy week”. He had been off since Monday as he had a Covid swab (which was negative) due to a cough. He was therefore unsure why there had been nil improvement, with very little activity.
The applicant lived with a friend. He was “IADLs” (Instrumental Activities of Daily Living). He worked in a warehouse, smoked 25 to 30 cigarettes a day, and drank 2 litres of wine a day, “minimum”.
The applicant was in significant pain and struggling to lie down due to this. He was maintaining his own airway and speaking full sentences without SOB (shortness of breath).
It was noted that the applicant was at high risk of malignancy, given he was a smoker and “ETOH XS” (alcohol to excess). The impression was recorded as “Atraumatic T5/T6 fracture -? malignancy”.
The applicant was advised that in the absence of trauma, they needed to work out how new back fractures occurred. He reported “nil trauma, straining or any other reason for fracture”. He was told that cancer needed to be considered as a potential cause, and he would need scans to exclude it.
The applicant understood. It was explained that they needed to keep on top of the pain, and the likely need for lots of analgesia. He would have regular Endone prescribed but was to ask for more as needed. He understood and had no further questions. He was advised to stop smoking, as it would delay the healing process – “understands”.
The applicant again presented at Wyong Hospital on 1 June 2021.
Dr Sarah Keenan, resident medical officer, reported to Dr Martin that the applicant was discharged from emergency outpatients. He had presented on 1 June 2021 on Dr Martin’s recommendation for review of “? left humerus avulsion fracture”, after a fall six weeks ago, which was complicated by thoracic vertebral fractures.
The applicant complained of generalised anterior shoulder pain “since the injury”, and reduced range of motion due to weakness and pain. The symptoms were in keeping with the full-thickness tear noted on shoulder ultrasound on 21 May 2021.
The X-ray of the shoulder after the injury showed no acute fractures. In light of the applicant’s recent soft tissue injuries to the shoulder and upper left arm, the calcific body noted on ultrasound was deemed likely to represent calcific tendinitis.
Dr Keenan recommended referral for physiotherapy for left shoulder rehabilitation.

Gosford Hospital

The applicant was admitted to Gosford Hospital on 8 May 2021. It was recorded that he had arrived from Wyong.
The applicant lived with a friend. He worked in a warehouse. He smoked 25 to 30 cigarettes a day and drank two litres of wine a day, “minimum”. His past medical history included hypercholesterolemia, hay fever, and anxiety.
On 9 May 2021, physiotherapist Ms Melissa Dunn recorded that the applicant had presented with atraumatic back pain and was found to have fracture of T5/6. He was being investigated for possible malignancy/pathological fracture. He reported an ache in his back. He had been mobilising independently.
The clinical history recorded on the MRI of the applicant’s cervical, thoracic, and lumbar spines on 11 May 2021 was of several days’ chest/back pain. He “denies trauma”. That he was a smoker, “ETOH ++” and worked in a warehouse was recorded. There was no other relevant past medical history.
There was no specific evidence of spinal metastatic disease. There were acute T5 and T6 compression fractures similar in appearance to recent CTPA (CT pulmonary angiogram).
The nursing notes recorded that the applicant was alert and orientated, mobilising, ambulant, independent, and speaking in sentences.
The applicant was discharged to Dr Martin’s care on 12 May 2021.
The hospital’s letter to Dr Martin helpfully summarised the applicant’s presentation and care.
The applicant had been admitted to Gosford Hospital on 8 May 2021 with a history of thoracic back pain and intermittent SOB on inspiration.
Mr England was investigated for a suspected PE (pulmonary embolism), but CTPA demonstrated fracture of T5/6 vertebral bodies and excluded PE. He had no history of spinal trauma.
The applicant was managed with advice from neurosurgery at RNSH. He was given analgesia and allowed to mobilise as tolerated. He was investigated further with thoracic spine X-rays and whole spine MRI.
Mr England had been deemed safe for discharge after imaging was reviewed by neurosurgery, with a plan to follow up with repeat X-ray and outpatient clinic at RNSH in two weeks. He should also have an outpatient CT of the abdomen and pelvis for further investigation for a cause of the atraumatic fractures.

The applicant submitted it was perfectly plausible to use up medication he might have had in the house, and he gave a plausible explanation why it was there. He did not give the evidence about the cancellation of the Hunter Valley trip. It was Ms Sanig who gave that evidence and she had made the arrangements and cancelled the trip. There was no cross-examination of her, so I would accept her evidence.
The applicant submitted I would accept he had a memory problem, but that did not mean it did not happen. He came back to the fact that he made a report of injury to Mr Hunt and had corroborative evidence. I would accept that he was raised not to complain and keep working.
The applicant submitted that MRI on 6 July 2021 showed a dislocation and a Hill-Sachs injury. There was no evidence of any other injury to the left shoulder, and Drs Anderson, Joshi and Bateman say, given the history and description of the incident, that type of injury could have resulted. He submitted I would reject A/Prof Shatwell’s opinion and prefer their evidence and that of Dr Martin.
The applicant referred to the respondent’s criticism of the use of the word “wrenching” but submitted that Dr Anderson concluded that was the type of injury that occurred to his left shoulder.

Respondent

The respondent submitted there were four main categories where I would not accept the applicant.
Firstly, the applicant’s admission that his memory was bad in general. Secondly, numerous internal inconsistencies in his evidence in cross-examination. Thirdly, his credit in general, in that the explanations he gave in cross-examination were largely implausible. Fourthly, the reliance on medication that he used to explain away any inconsistencies in his evidence.
As the applicant’s memory was not good, the respondent submitted that the Commission would rely on contemporaneous evidence and the reports to the employer and the GP to establish what really happened.
The respondent submitted that the applicant gave evidence he had injured his back and his shoulder, but there was no reference at all to the back in the documents. His evidence was that he remembered reporting the back to Mr Hunt and he then conceded that he did not remember it.
The applicant was “sure [I] did” tell Dr Martin about the injury, but the evidence did not support that. He was asked if remembered telling Dr Martin and responded that he did not. The respondent submitted he had changed his opinion in the space of two questions. He was either not being careful with his evidence, noting its importance, or he was someone who would change his evidence when challenged or when it suited him.
The respondent submitted that the applicant said he did not recall whether he worked on 20 March 2021, and working full hours was inconsistent with his explanation that he could not go to the Hunter Valley due to pain, and with the evidence that showed he did work full hours.
The respondent submitted it was totally implausible that, the applicant having told Mr Hunt on a Thursday that the injury occurred on 22 March 2021, which was a Monday, he had forgotten that it happened before the weekend. It was implausible that the applicant could think something happened three days earlier, when there was an intervening weekend, he had to go home for one day, and had apparently been reporting problems to his neighbours.
The respondent submitted that the applicant used the Endone as a “get out of jail free card in respect of all the inconsistencies of his evidence”. The timeline was highly unlikely. The applicant’s evidence was that his partner was on Endone for 16 years, which was possible but unlikely. Thirteen years after his partner ceased living with him, his evidence was that he found two packets of Endone and started taking them in relation to the alleged incident in March 2021.
The respondent referred to the applicant’s conflicting evidence about the Endone. He said he did not know if he took them all, and that he had run out. He had said both that he would not take Endone some days, and that he continued to take it daily after he reported the incident on 25 March 2021. He did not know the dosage. The Endone was affecting his memory.
The respondent submitted that the applicant relied on the Endone to explain why he delayed reporting the symptoms to his GP; why he could continue to work until May; and presumably why he did not report symptoms of his left shoulder or back to his GP until he was taken to hospital in May.
The respondent submitted that the applicant’s evidence that he was taking Endone in the afternoon when he got home from work was inconsistent with him relying on it to get through his day’s work. It was self-serving evidence to explain why he drove to work when allegedly highly affected by Endone. If he took Endone in the afternoon, he would not have been suffering memory effects, or able to perform the duties as alleged without pain management. “His whole case theory falls apart on that evidence”. His evidence of taking Endone in the afternoon was also inconsistent with the evidence he had provided to A/Prof Shatwell and other doctors.
The respondent submitted that the applicant gave conflicting evidence about reporting injury to his left shoulder and thoracic spine, but not remembering the date until he looked at the “paperwork”, and that “I don’t remember much of it.” This conflicted with his evidence that he reported to Mr Hunt that he had hurt his back and shoulder. He was changing his story consistently to explain away evidence that did not suit him.
The respondent submitted that the applicant had given evidence both that Saturday, 20 March 2021 was the previous day he had worked from the time he reported the incident to Mr Hunt and that he did not recall whether he worked that day. The accuracy of this evidence was highly questionable.
The respondent referred to the applicant’s evidence about what occurred on 5 May 2021. It submitted his evidence that he did not recall whether he told the ambulance officer about the injury in March, and “green whistle is good stuff” was completely self-serving. The applicant again attempted to use medication to explain away the inaccuracies of his history.
The respondent submitted it was extremely unlikely that ambulance officers would attend someone reporting pain, as described by the applicant, and not take a history of what happened. It was unlikely that they would give him a green whistle before they got a history of what happened and examined him.
The respondent submitted that the applicant was non-responsive to questions about what he had told the ambulance officers. He conceded consistently that he did not remember what he told the ambulance, Wyong Hospital or Gosford Hospital, on a background of having conceded that his memory was not good in the first place. The respondent submitted one would be heavily reliant on treating records from these sources to determine the correct history, and the history provided by the applicant on the day.
The respondent submitted that the applicant’s “case theory” was that he managed to proceed with very significant pathology in both his shoulder and the back, through the use of Endone, until he went off work in May 2021. That explanation was contradicted by his evidence that it ran out before he went to the hospital. The respondent submitted I could not accept that he suffered the injuries as described and continued to work without Endone, as was his evidence.
The respondent referred to the applicant’s evidence that he both “wouldn’t have a clue” when the Endone ran out, and that it must have run out by the time he attended hospital on 5 May 2021. He was asked if, when it ran out, he had noticed an inability to perform his duties, and “tried to explain it” by saying he had some paracetamol that helped him get through. The respondent submitted that, with the significant pathology and injuries he relied on, he could not have done his pre-injury duties if he was relying on paracetamol. It submitted I would not accept his evidence that he could not recall if his duties were harder or easier when he took paracetamol rather than Endone.
The respondent submitted that the applicant’s evidence that he did not “whinge” as an explanation for not seeking a WorkCover certificate was inconsistent with his evidence that he told his co-workers that he was sore and got their aid to perform his duties. He acknowledged that he was possibly seeing Dr Martin at the same time he was seeking help from colleagues, but the respondent submitted he did not tell Dr Martin about his problems. He did not recall whether he obtained a certificate but had earlier said that he would have reported his symptoms to Dr Martin.
The respondent submitted that the applicant’s evidence that he thought he had only jarred his back and strained his shoulder was contrary to his evidence that on 25 March 2021 he continued to suffer chronic pain in his mid-back and left shoulder, that had not responded to rest or medication, so he decided to report it. His evidence that he requested light duties is contrary to his opinion that he thought he had only strained some muscles, which was why he did not report the injury to the insurance company. It is also contrary to his evidence in his statement dated 9 September 2022 about the work he did from 18 March 2021 to 5 May 2021.
The respondent submitted that A/Prof Shatwell took an entirely appropriate history that was consistent with the pleadings and the applicant’s first statement. There should be no attack on his opinion due to any alleged inconsistency with the circumstances and mechanism of injury.
The respondent referred to the applicant’s evidence that on 19 March 2021 he told his team leader he was sick and needed to go home. It submitted there is no explanation as to why he did not report the injury, rather than say he was sick. His wage slip shows that he took personal leave rather than sick leave, which was another inconsistency in his statement. Going home on the Friday and returning for full hours, including overtime on Saturday, was not consistent with the injury occurring on 18 March 2021, or the pathology relied on.
The respondent referred to the statement the applicant made on 25 March 2021, and submitted it had no reference to the thoracic spine. It submitted that, even if I accepted there was an incident on 18 March 2021, there was no evidence to suggest the applicant suffered a thoracic spine injury in those contemporaneous reports. Given his admission as to his memory in the best of circumstances, and his evidence that it was severely affected by Endone, one has to rely on the contemporaneous records.
The respondent submitted that on 22 March 2021, Dr Martin had recorded “Specsavers”. There was no mention of the fall, the left shoulder, the back, Endone, or difficulties working.
The respondent submitted that the applicant’s evidence about asking for lighter duties was inconsistent with his evidence that he was “hoping everything would heal”, and as he grew up “we didn’t whinge if we hurt ourselves”. It submitted the issues of performing suitable or pre-injury duties is significant, because it was one of the foundation statements of A/Prof Shatwell’s opinion. The respondent referred to the early contacts form, which recorded that the applicant continued to work normal duties from 22 March 2021 to 30 April 2021, with no restrictions.
The respondent’s “case theory” was that the injury did not occur at all, because it was not possible to identify the correct date and the footage showing the alleged fall. Despite the applicant reporting the incident within a week of it allegedly happening, he could not identify the date or time to find the CCTV footage.
The second part of the respondent’s case theory was that if the applicant did suffer an injury, it arose due to the home incident on 5 May 2021. It submitted it was important to note that the applicant worked basically full duties up to this date. If something occurred on 18 March 2021, it clearly was not the cause of his incapacity. There was no report of back pain to anyone prior to this incident.
The respondent submitted that it was “quite an extraordinary piece of evidence” that the applicant did not identify an injury that occurred in March 2021 when he was asked at Wyong Hospital about any recent trauma to explain the fracture, when he was being told he potentially had cancer. The applicant never identified the alleged injury as the cause of his back pain at any of these hospitals.
The respondent referred to the COC issued by Dr Martin on 2 June 2021 that recorded that the patient stated the date of injury as 5 May 2021, despite recording that the injury was related to work – “tripped on stairs”. The report from Ms Creanor dated 3 June 2021 recorded that the applicant tripped on stairs “two weeks prior” which the respondent submitted “doesn’t get us anywhere near” 18 March 2021.
The respondent referred to its injury claim form, which recorded that the applicant had been able to continue his duties as normal without discomfort. It submitted that the fact that the applicant continued to work on 18 March 2021, doing his full pre-injury duties, until 5 May 2021, when he had this incident at home, was “very telling” as to why I would accept its evidence and not that of the applicant.
The respondent submitted that the applicant reported an incident that occurred, in his mind, on 22 March 2021. Despite its best endeavours, trying to search on all the alternative dates he provided for this event, there was no CCTV footage showing his injury. He only reported that his left shoulder was injured. He never reported that his back was injured. He continued to work until the incident on 5 May 2021.
The respondent submitted that pointed to a clear conclusion that there was no incident on 18 March 2021, there was no injury to the left shoulder, and there was no incapacity arising from the incident on 18 March 2021. There was certainly no evidence of reporting a back injury, back symptoms or any incapacity relating to the back until 5 May 2021.
The respondent submitted that the claim form is another unreliable piece of evidence, as the applicant stated that the incident at home occurred two weeks after he tripped at work. The dates were seven weeks apart.
The respondent submitted that a fair reading of Dr Joshi’s report did not relate the fracture to the thoracic spine to the fall at work. There was no history of the applicant performing largely his full duties until May 2021. Dr Joshi did not have a clear history. There was no explanation of how the applicant could suffer a glenohumeral dislocation and continue to work, without even reporting it to his GP and without providing any certificate asking for suitable duties. The respondent submitted I would dismiss Dr Joshi’s opinion in respect of causation of the left shoulder and disregard it in relation to establishing injury to the thoracic spine.
The respondent submitted that Dr Bateman did not take the correct history that A/Prof Shatwell took. The “foundation stone” of accepting Dr Bateman is whether I accept the applicant, which the respondent submitted I would not. There was also no correct history in respect of the thoracic spine, no history of the work the applicant did since 18 March 2021, and no history of the events and treatment in May 2021.
The respondent submitted I would give very little weight to Dr Martin’s response to the questionnaire submitted by EML.
The respondent submitted that A/Prof Shatwell was the only doctor who took a correct history, and he had given an extremely considered medical opinion, consistent with the treating evidence. He had noted that Dr Anderson assumed the information given to him was accurate but did not address the applicant’s attendance record.
The respondent submitted that I would accept A/Prof Shatwell’s evidence over that relied on by the applicant, which all proceeded on the basis that they accepted the applicant.
The respondent referred to the applicant’s evidence that when he informed EML of the injury on 9 June 2021, he was suffering chronic pain, on strong medication, and his friends were driving him to appointments and reminding him of schedules. It submitted that if this arose on 9 June 2021, it was due to the incident on 5 May 2021.
The respondent submitted that if, as the applicant has stated, he stopped taking Endone before he went to hospital on 5 May 2021, his explanation that he gave an incorrect history to the ambulance officers because he was high on medication was completely implausible.
The respondent referred to the applicant’s evidence that his GP had told him his body was under so much stress that he would not be surprised that at times his mind shut down. It submitted there was no evidence of any psychological condition and I would reject the explanation that his inaccurate history was due to a secondary psychological condition.
As regards incapacity, the respondent submitted that if I were to find the applicant suffered an injury, I would not find that his incapacity arose from the pleaded injury. He had worked largely without restriction, performing overtime, and without any medical certification, prior to 5 May 2021. His evidence was that following this incident he had been unable to return to work. Prima facie, the incapacity arose due to that incident.
The respondent submitted that the applicant did not plead a secondary neck condition, but he had given quite a lot of evidence that it was contributing to his inability to work. He had also referred to a litany of secondary psychological conditions which were not pleaded.
The respondent submitted I would not find any incapacity arising from any of the pleaded injuries; and would not find there was an injury or event on 18 March 2021 to either the left shoulder or thoracic spine.
The respondent submitted that the applicant had made a submission about wrenching of the left shoulder, which was not how the mechanism of injury was described in either the Application or his statement; and I would reject this submission.
The respondent referred to the WCD and the COC certifying the applicant as fit to work for 32 hours per week, with relatively minor restrictions. It submitted that was consistent with the applicant’s statement that Dr Bateman believed the pain had settled post-operatively, the GP’s certification, Mr Ruzicka’s opinion, and Dr Bateman’s clearance for full duties, based on the left shoulder.
The respondent finally submitted that, if I were to find the applicant suffered injury to the left shoulder on 18 March 2021, I would be satisfied there was limited incapacity and an ability to return to pre-injury duties.
In reply to the applicant’s submission regarding Finney, the respondent submitted that the strength of his witness statements is based solely on whether I accepted his credibility and what he told them was correct.
Ms Sanig did not say the applicant told her he tripped and injured his back and shoulder. She said it was clear they were causing him pain. Her evidence was hearsay. The fact that she had not been cross-examined should not be fatal to the respondent’s case, and her explanation of the applicant being in considerable pain is contrary to his ability to continue to work all the way up to the next week, when he reported his injury, despite not taking Endone in the morning, being able to drive to work and not having amended duties.

SUMMARY

Injury

There are significant factual disputes in this matter. It is necessary to first address the issue of whether, as the applicant maintained, an incident occurred on 18 March 2021, when he slipped while going upstairs, and injured his left shoulder, left bicep/arm, and thoracic spine.
The applicant has attempted to explain why he reported on 25 March 2021 that the injury occurred on 22 March 2021, rather than 18 March 2021. It does appear somewhat unusual that, had the injury occurred a week before he reported it, he would mistakenly report it as having occurred only three days before.

The evidence establishes that the applicant left work “sick” on 19 March 2021. It is implied in his statement evidence that this was due to the injury, although no reason has been recorded by the respondent, and he took personal leave rather than sick leave.
Ms Sanig’s evidence is that she was able to recall some 12 months later that it was on 19 March 2021 that the applicant returned home early from work, and it was on 20 March 2021 he told her he had tripped on the steps at work the day before and was in too much pain to continue. It was “clear” to her that his back and shoulder were causing him considerable pain. Just how this would be clear to her is not explained.
Ms Sanig gave no explanation in either her first or second statements as to how she was able to be sure of the date on which the applicant told her the injury occurred. In her final statement, she clarified that she was able to recall that she visited the applicant on 19 March 2021 (having previously stated it was 20 March 2019) as this was going to be the first weekend without her foster child, and she and Mr England had planned to visit the Hunter Valley.
Ms Sanig has not stated whether she and the applicant intended to stay in the Hunter Valley for the weekend, or whether they planned a day trip. The applicant, in cross-examination, said he thought they had intended to go for Sunday lunch. He worked on 20 March 2021, a Saturday, which would suggest that his evidence may be correct. It is not explained how he was well enough to work, but not well enough to take the trip, apart from his evidence about taking Endone, to which I will come.
As the respondent submitted, Ms Sanig’s evidence about the injury is evidence of what she was told by the applicant. Her evidence that the applicant was in such a confused state from taking his ex-partner’s Endone that most days he did not recall she had visited or know what day it was is at odds with the fact that he was able to drive to work and work his normal shifts.
Ms Sanig’s evidence that the applicant was in a great deal of pain leading up to his first admission to hospital, and had become very limited in his movements, is also at odds with his attendance at work prior to that admission. She did not refer to this in her first statement. It is possible that she has confused the dates.
Mr O’Loughlan’s statement is not dated and is of limited assistance. Even if it is accepted that he recalled the date on which he observed that the applicant was “not right” (and he has given no term of reference, apart from the fact that he was considering having the property sprayed for pests), he has given no evidence about any injury, only stating that the applicant seemed to be in a lot of pain.
The applicant did report an injury at about the time he claims the incident occurred. If the injury was on 18 March 2021, he reported it a week later.
It is not clear whether the CCTV footage for 18 March 2021 was reviewed, but it appears unlikely. Mr Hunt’s evidence was that he and Mr England looked at five different times, across multiple shifts. The applicant said in cross-examination that they looked back at the Saturday, which was the previous day he worked (that is, 20 March 2021), “so that was the Monday back to the Saturday”. That would suggest they looked at the footage for at least 20 March 2021 and 22 March 2021, the date he told Mr Hunt was the date of the injury.
The applicant requested that the CCTV footage for 18 March 2021, 19 March 2021, 20 March 2021, 22 March 2021 and 23 March 2021 be reviewed. He was advised that the footage was not available.
It seems unlikely that the applicant would so insistently request that the CCTV footage be reviewed if no incident had occurred, as he would of course be aware that if that were the case, it would not show anything that would assist him. As he submitted, at the time he reported the injury, he was not claiming compensation and did not go off work. He had nothing to gain by reporting it at that stage.
The evidence suggests to me that some event did occur at the applicant’s workplace, while he was going upstairs, and the most likely date was 18 March 2021, notwithstanding the unusual circumstances of him reporting an injury that occurred a week before as having occurred only three days before. Mr Hunt recorded that he wanted it to be a “report only”.
The injury was recorded as a left shoulder sprain/strain. There is no record of an injury to the applicant’s back. The applicant said in his first, handwritten, statement that his left arm bent backwards. It was awkward to shower and raise his arm. I accept that the applicant may have felt pain in his left shoulder when he grabbed the handrail. I do not accept that reference to difficulty using his left arm means that he had also injured his back.
There was no report of an injury on 18 March 2021, or any other time, to the applicant’s back until after he presented to hospital in May 2021. The first reference to it in claims documents appears to have been in the early contacts form on 11 June 2021.
No history of any injury to the applicant’s back at work was recorded by NSW Ambulance, Wyong Hospital, or Gosford Hospital. He has attempted to explain the medical records by his “terrible memory”, he had been given the “green whistle”, he did not recall telling the ambulance officers anything, he did not recall telling either Wyong Hospital or Gosford Hospital that he had not had any trauma to his back, and he did not recall what he told Dr Martin. His explanation of why he had apparently provided a history of some incident or event in April 2021 was also, in my view, unconvincing.
I am mindful that cases such as Davis v Council of the City of Wagga Wagga[3] and Mason v Demasi[4] 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.
[3] [2004] NSWCA 34.
[4] [2009] NSWCA 227.
I also find it difficult to accept that, when it was suggested to the applicant that the fractures in his thoracic spine may be due to him suffering cancer, he would not volunteer the alternative explanation that he had sustained trauma to his back at work.
While A/Prof Shatwell initially opined that the applicant injured his thoracic spine when he tripped up the stairs, he was less convinced after being provided with details of the applicant having worked until 1 May 2021. He then opined that it was unlikely that the pain experienced by the applicant after the incident was due to the initiation of a fracture in the thoracic spine.
I am satisfied on the balance of probabilities that there was an injurious event, probably on 18 March 2021, and the applicant sustained injury to his left shoulder. I am not satisfied that he sustained injury to his thoracic spine on or about that date. There will be an award for the respondent for the injury to the thoracic spine.
The fact that the applicant injured his left shoulder does not however, mean that the injury resulted in the incapacity and necessity for medical treatment in respect of which he is claiming.
I have referred to the applicant’s oral evidence in some detail, not only to record its contents, but to attempt to convey some sense of the way in which it was given.
I found the applicant to be an unimpressive witness. He appeared to approach the task of giving evidence in a somewhat casual manner, and his answers to questions in cross-examination did not appear to be considered.
The applicant’s demeanour, however, which may have been due to nervousness or other factors, is of less importance than his often conflicting or non-responsive answers to the questions that were put to him.
I do not intend to refer to all the inconsistencies in the applicant’s evidence. They include, however, that he recalled he had plans to go to the vineyard with Ms Sanig; he did not recall it, but she had reminded him; he had started taking Endone probably on the day he went home sick (19 March 2021); he did not recall for how long he took the Endone, and did not know whether he took it all; some days he did not take any; he took Endone daily after he reported the incident on 25 March 2021; he was sure he told Dr Martin about the injury, and he did not recall whether he had told him; and he took Endone when he got home from work and not in the morning.
The applicant’s evidence was that he had a poor memory, even when he was not affected by Endone. That may be the case, but the impression 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 statement evidence also contains inconsistencies, which is perhaps not unusual when he relied on four formal statements, and there are also inconsistencies between his statement and oral evidence.
The applicant initially provided no evidence that he had relied on Endone to allow him to keep working after the injury. His second statement referred to him having tried his best to manage the pain in his back throughout April 2021. He referred to being “high on pain medication”, but not to taking Endone. He was attempting to explain the medical records indicating that some sort of incident occurred in April 2021.
The applicant said in his first statement that he told Dr Martin about the injury on 14 May 2021, after he was discharged from hospital, but in his oral evidence he stated he thought it was incorrect that he had not told Dr Martin about it before this.
The applicant’s final statement was made to “specifically address” the period of work after 18 March 2021. It was made after he had reviewed A/Prof Shatwell’s report dated 19 July 2022. He “presumed” his shoulder had popped back in and had no idea it was dislocated. This was the first time he had given such evidence. It was recorded in the early contacts form that it felt like a sprain.
The applicant stated that he was taking Endone and was therefore able to numb the pain and undertake his duties, which is inconsistent with his oral evidence that he took it after work. He had not previously mentioned taking Endone. His reason for this, given in cross-examination, was that he thought it was illegal. He nonetheless told A/Prof Shatwell he had taken his ex-partner’s Endone. He also told A/Prof Shatwell that he had stayed home taking Endone for a “couple of weeks”, when in fact he worked most of his normal hours, and some overtime, from 18 March 2021 to 1 May 2021.
The applicant has given evidence that he had felt sure his shoulder would be OK in no time, which does not suggest that he was initially in significant pain.
The applicant has also given evidence that he struggled with his work throughout April 2021. His job was so physically demanding that it felt like a gym workout, but he was nonetheless able to continue working. He has, of course, also given evidence that he was working on a much lighter pick route than a lot of others after the injury, and he was assisted by colleagues, none of whom he has identified, although Dr Khan recorded that he was on good terms with his co-workers and supervisor.
One of the applicant’s reasons for continuing to work, assisted by Endone (although he eventually said he took it at night), despite being in considerable pain, was that he had previously claimed WorkCover benefits and did not want to again become involved with that process.
Mr England’s previous experience with WorkCover may well provide a reasonable explanation for his reluctance to again claim compensation. However, it provides no explanation as to why, given he “struggled with maintaining” his duties, relying heavily on pain medication and his right arm, and requesting help from colleagues, he did not seek medical attention. He could have consulted Dr Martin, and perhaps been referred for investigations and specialist review, without claiming compensation. His explanation that he was not a “whinger” is also in my view unconvincing as a reason not to seek medical treatment.
The applicant said in cross-examination that he was so sore after “a couple of weeks” that he realised it was not going to heal, and that was when he sought help. He thought it was incorrect that he did not report the injury to Dr Martin until after he went to hospital in May 2021.
It does not appear from Dr Martin’s records that the applicant reported any injury at work to him until 14 May 2021. Once again, caution must be exercised in considering medical records, but in this case we have the advantage of reports from Dr Martin.
I agree with the applicant’s submission that Dr Martin could be criticised for crossing the line into advocacy. For all his advocacy for the applicant, his evidence is lacking in detail as to when Mr England first provided him with a history of a fall at work, or of any incapacity for work before he was admitted to hospital on 5 May 2021.
In his report to the applicant’s solicitors dated 1 December 2021, Dr Martin reported that “at the time” the applicant presented to him he was very distressed. He did not say when this was, but as he has referred to “bureaucratic” follow up, it appears to have been some time after the injury.
When he reported on 4 May 2022, Dr Martin again referred to the applicant presenting “in a very stressed state”, but not when that occurred.
Dr Martin’s records show that the only entry for 22 March 2021 is “Specsavers”. There was a request by the applicant on 21 April 2021 for a consultation for a script. Had he given any history of an injury to his left shoulder or thoracic spine before 14 May 2021, it would have been a simple matter for Dr Martin to say so. Even his entry for that date did not record any date of injury. I have found little assistance from his evidence.
The evidence of Drs Joshi, Bateman and Lyons depends on an acceptance that they obtained an accurate history. None of them recorded a history that the applicant performed his normal duties, including overtime, from 18 March 2021 to 1 May 2021; there is no evidence that he sought medical treatment for his shoulder until 5 May 2021, when he presented at Wyong Hospital; and it was only after that presentation that he ceased work.
Apart from A/Prof Shatwell, the only other doctor to have been provided with this history is Dr Anderson. His response to the question of whether the applicant would have been able to work after a significant injury to his left shoulder was that he did not think there was a direct answer, and to refer to the investigations.
Dr Anderson opined that unless there was clinical evidence of a previous significant injury, then the applicant must be given the benefit of the doubt. However, the applicant bears the onus, and I have had a great deal of difficulty accepting his evidence in support of any incapacity for work resulting from injury on 18 March 2021.
I accept that A/Prof Shatwell obtained the correct history. The applicant submitted that he had not dealt with a “wrenching” injury or the use of Endone. However, he referred to a “violent twisting” of the shoulder. The applicant’s oral evidence was that he was taking Endone at night, so any failure to deal with him taking it to get through his day’s work would make little difference.
A/Prof Shatwell has explained his reasoning, and I prefer his evidence to that of Dr Anderson, in this as in the issue of injury to the applicant’s thoracic spine.
In Kooragang Cement Pty Ltd v Bates[5], Kirby P, as he then was, said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent death or injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.” (Emphasis added).
[5] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
The Court of Appeal, in the matter of Nguyen v Cosmopolitan Homes,[6] 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.”
[6] [2008] NSWCA 246.
For the reasons above, I do not feel a sense of actual persuasion that the applicant has any incapacity for work, or the necessity for medical treatment as a result of injury to his left shoulder on 18 March 2021.
I determine that the applicant did not sustain injury to his thoracic spine arising out of or in the course of his employment with the respondent on 18 March 2021; the applicant sustained injury to his left shoulder arising out of or in the course of his employment with the respondent on 18 March 2021; and the applicant has no incapacity for work and did and does not require medical treatment as a result of injury to his left shoulder on 18 March 2021.
The order is as set out in the Certificate of Determination.

[2023] NSWPIC 306

28 June 2023