Foldi v TJ & RF Fordham Pty Ltd

Case

[2025] NSWPIC 406

13 August 2025


CERTIFICATE OF DETERMINATION OF MEMBER 
CITATION: Foldi v TJ & RF Fordham Pty Ltd [2025] NSWPIC 406
APPLICANT: Dean Foldi
RESPONDENT: TJ & RF Fordham Pty Ltd
MEMBER: Parnel McAdam
DATE OF DECISION: 13 August 2025

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987; whether applicant suffered injury to the cervical spine; accepted injury to the left shoulder; multiple forensic medical reports filed by both parties; additional reports considered for purposes of history only; inconsistent histories given; no record of symptoms reported to treating general practitioner; Held – award for the respondent.

DETERMINATIONS MADE:

The Commission determines:

1.     Award for the respondent.

A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

  1. Mr Foldi was employed as a truck driver for the respondent. His shift involved transporting blue metal. To secure the load, he was required to place a tarpaulin over the material. This would be secured via a mechanical wheel. There was an electric motor to assist with putting the tarpaulin in place, but this had malfunctioned.

  2. On 5 February 2020, Mr Foldi was securing the tarpaulin manually, due to the malfunctioning tool. The winch was stuck, so Mr Foldi used extra force to get it to shift. He continued to pull on the handle but noticed that he had dislocated his left shoulder. He continued his duties, working through the pain. He completed an incident report indicating an injury to the left shoulder.

  3. The left shoulder became the primary concern of Mr Foldi, and he underwent two bouts of surgery to treat that condition. The left shoulder injury is not disputed. The present dispute concerns the cervical spine. Surgery has been recommended. Mr Foldi claims he injured that body part in the initial incident. The occurrence of that injury, as well as whether the proposed surgery is reasonably necessary, have been disputed by the respondent.

ISSUES FOR DETERMINATION

  1. The parties agree that the following issues remain in dispute:

    (a)    Whether the applicant suffered an injury to his cervical spine on 5 February 2022, to which employment was a substantial contributing factor, and

    (b)    Whether surgery proposed, being C5/C6 foraminotomy and decompression of the C6 nerve root microdiscectomy is reasonable necessary as a result of injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

  1. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

  2. The matter proceeded to conciliation/arbitration on 31 July 2025. The applicant was represented by Mr Joseph of counsel, instructed by Turner Freeman Lawyers. The respondent was represented by Mr McEnaney of counsel, instructed by Bartier Perry.

EVIDENCE

Documentary evidence

  1. The following documents were in evidence before the Commission and considered in making this determination:

    (a)    Application to Resolve a Dispute and attached documents;

    (b)    Reply and attached documents, and

    (c)    An Application to Lodge Additional Documents, filed by the respondent on 28 July 2025.

  2. Both parties have relied upon more than one forensic medical report in breach of reg 44 of the Workers Compensation Regulation 2016 (the 2016 Regulation). It was discussed and agreed at the hearing of the dispute that the applicant elected to rely on the report of Dr Dixon, whilst the respondent elected to rely on the reports of Dr Smith. The additional reports (of Dr Rosenberg and Dr Herald) would be admitted and could be relied on only for the purposes of the history contained therein, consistent with the principle outlined by Roche DP in McCarthy v Patrick Stevedores No 1 Pty Limited [2010] NSWWCCPD 96.

  3. Whilst a large amount of material has been filed in these proceedings, between the Application, the Reply, and the Application to Lodge Additional Documents (which contain clinical notes that were produced under direction, and evidence that a number of directions were not responded to by producers), not all of that was referred to by the parties in submissions. I have considered all of the evidence to the extent necessary, but will not refer to it in great detail.

The applicant’s statements

  1. The applicant provides a statement dated 7 June 2024, attached to the Application. There are two other statements, prepared at earlier points, that are attached to the Reply. The differences between the statements is a critical issue in the proceedings.

  2. In the 2024 statement, Mr Foldi explains his employment history. He discusses an injury to the right shoulder with a previous employer. He describes the injury he suffered on 5 February 2020, with a mechanism consistent with that outlined in the background, above. He describes filling in the incident report with the assistance of Wayne Toovey (presumably Mr Foldi’s manager), stating: “I had pain in the area of the left shoulder and neck but only put down the left shoulder as I thought I had dislocated the left shoulder”. In respect of the cervical spine, Mr Foldi states:

    “I have been experienced pain and restriction in my neck from the original incident on 5 Feb 2020 but it became more prominent after the first surgery in August 2020. I informed my treatment providers and was told it was probably referred from the left shoulder or due to overuse due to injury to my left shoulder. My treating Dr’s did not recommend I do any investigations/radiology for the neck as they assumed it was referred from the left shoulder.”

  3. In terms of the injury claim, Mr Foldi states:

    “I believe the injury to my neck occurred at the time of the original incident of 5 Feb 2020 but as the pain in the left shoulder was more prominent I thought the problem was in the shoulder alone. I did not realise I had injured my neck as well.”

  4. Mr Foldi then refers to the opinion of Dr Rosenberg, which has been admitted into the proceedings only in respect of the history contained.

  5. There are two earlier statements, prepared in respect of different disputes arising out of the injury that occurred on 5 February 2020. On 7 March 2022, Mr Foldi provided a statement. He describes a similar history of a dislocation of his left shoulder when attempting to turn the winch. In respect of the completion of the incident report, Mr Foldi states: “I contacted my manager and advised him that I had dislocated my shoulder as a result of using the winch”. Mr Foldi gives a similar history of Mr Toovey assisting in the report, but there is no mention of neck pain.

  6. Under the heading “Cervical spine” Mr Foldi states:

    “I have been experiencing pain and restriction in my neck, particularly after the first surgery in August 2020. I have been informed that it is likely to be due to overuse due to the injury to my left shoulder.


    The pain has increased over time and I feel there is a lack of range of motion in my cervical spine/neck.”

  7. The statement dated 23 June 2023 provides an almost identical history of injury, including the incident report. The same history of pain and restriction in the neck, as quoted above, is given.

The report of Dr Dixon

  1. The applicant relies on the report of Dr Dixon dated 21 January 2025. Under the heading “Accident details as given by the claimant” (which is an important qualification to the history given), Dr Dixon records:

    “This 43 year old truck driver sustained injuries to his left shoulder and neck on 5 February 2020 when he was procuring items on his truck which had been loaded by Boral employees at St Peters, where he had he had transported bluemetal and the Boral employees had loaded his truck with relevant goods. While trying to secure the tarpaulin, he was using the mechanical wheel to pull the tarpaulin down….

    He had experienced pain in his neck from the original accident on 5 February 2020 but it became more prominent after the first surgery in August 2020. His neck pain increased with time and he had review by a spinal surgeon who noted findings on imaging studies and recommended a C5/6 foraminotomy and decompression of the C6 nerve root with microdiscectomy.”

  2. Dr Dixon then proceeds through the usual format of an independent medical report, taking a history of treatment, symptoms, and examination findings. The diagnosis in respect of the neck is as follows:

    “Aggravation of cervical spine with foraminal stenosis at C5/6 with radicular complaint in the left arm with intermittent paraesthesia of the little finger and some pain in the upper arm”

  3. In answer to a specific question (which is not provided), Dr Dixon states the following:

    “The history obtained, the diagnoses and prognosis is in the above report. On the balance of probabilities, there is a causal connection between the claimant’s employment injury and the pathology diagnosed in both the left shoulder and neck and consequential pain and stiffness in the right shoulder. It is likely the claimant sustained a primary injury to the neck as a result of the incident work on 5 February 2020.”

The reports of Dr Smith

  1. The respondent elected to rely on the opinion of Dr Smith, contained in three reports. The respondent, in submissions, acknowledged some of the difficulties with that opinion. It was also acknowledged that the date recorded in the reports is incorrect (being 27 September 2019, rather than 5 February 2020), but that was most likely a typographical error, as the remainder of the history was consistent. Dr Smith’s opinion, in respect of the cervical spine, is that Mr Foldi had no injury to his cervical spine, and that he suffers from cervical degenerative disease.

  2. In his report of 25 January 2023, he opines:

    “It is my opinion that the diagnosis is aggravation to glenohumeral joint osteoarthritis as the source of the symptoms that arose in the work injury on 27 September 2019, so I considered the answer to question 3 had been covered in the answer to question 4. He did not complain of any cervical spine symptoms. There is no history of any injury to the cervical spine. There are no investigations of the cervical spine. I have no idea why Dr Herald included the cervical spine in his impairment assessment. In my opinion, it is not a relevant consideration.”

  3. In his report dated 24 May 2024, Dr Smith repeats his opinion regarding cervical degenerative disease. He also states: “On the last occasion I saw this man clinically on 29 November 2022, he made no complaint to me of any nick injury being sustained in September 2019” (acknowledging that September 2019 should read as February 2020).

Reports of Dr Rosenberg

  1. As discussed above, these reports were admitted only for the purposes of the history contained therein. I do note however that Dr Rosenberg was appointed after the applicant object to attending a further examination with Dr Smith. In his report of 18 May 2023, Dr Rosenberg records a background history that makes no reference to a neck injury occurring on 5 February 2020. In fact, no history of neck symptoms is recorded in the history section (although there is, under questions about causation, which form part of Dr Rosenberg’s opinion and not history). Dr Rosenberg makes reference to Mr Foldi coming under the care of a neurosurgeon in August 2022, with an MRI taken at that time showing degenerative change.

  2. In his report of 8 March 2024, Dr Rosenberg amends the history recorded:

    “What was not stated clearly to me at the time of the initial consultation, was he also had immediate pain in his neck radiating from the left side to the top of his shoulder and down his arm. He also felt numbness as far as his fingers. Far more attention was paid to the shoulder.” 

  3. He clarifies this further:

    “Referring to my previous report, I stated that he noted pain in his left arm about the time of his shoulder surgeries. This is wrong. He is quite adamant that his neck and left arm pain developed at the time of the shoulder dislocation in September 2019.”

Reports of Dr Herald

  1. Dr Herard prepared independent medical opinion reports on behalf of the applicant, but these are attached to the Reply. In his report of 3 August 2022, Dr Herald records a history of injury, involving the left shoulder only. The following appears at the end of Dr Herald’s history:

    “In addition he has also started to develop neck pain and pain in his left shoulder and right shoulder. His neck pain has radiculopathic symptoms to his left upper limb. He has currently been referred for MRI scans and is being investigated for his right shoulder and neck as he feels that his right shoulder is developing overuse problems”.

  2. In his report of 19 July 2023, Dr Herald takes a history of obtaining a second opinion in around March 2021 in respect of his left shoulder problems. He states:

    “He informs me that it was around this stage that he started developing progressively worsening neck pain. He says, at the time, he was told that it was just secondary to his left shoulder and treatment was focused on his shoulder rather than on his neck, but he does insist at that stage he started to develop both neck pain and right shoulder pain.”

  3. Dr Herald provides a further report, but as this is an opinion and contains no history, it has been excluded.

Treating evidence

  1. Mr Foldi has been treated by a number of specialists with respect to his left shoulder condition. A/Prof Ireland, who is an orthopaedic surgeon specialising in hip and knee as well as shoulder surgery, treated Mr Foldi from March 2020. His reports detail issues with the shoulder including the Latarjet procedure. I was not taken to any reference concerning the cervical spine.

  2. There are physiotherapy records from BounceBack Physio. Mr Foldi attended this from early after his shoulder injury, with a focus on improving shoulder stability and strength prior to surgery to assist with recovery. There is an early reference to the neck on 7 April 2020, where it is recorded “Neck: feels stiff; common in the truck”. No reference is made to this being related to the incident on 5 February 2020. Post the Latarjet surgery, there are references to the neck, including on 5 January 2021 with “Both shoulders, neck”. On 8 February 2021, it is recorded “Neck apin [sic] and pins and needles down arm full pulling down arm into fingers”.

  3. There are reports from Dr Bokor, who is also a specialist shoulder surgeon. These do not comment on the cervical spine.

  4. Mr Foldi eventually came under the care of Dr Darwish, a neurosurgeon, for assistance with his neck symptoms. He takes a history of shoulder dislocation on 5 February 2020. He states:

    “He had surgery on his left shoulder 10 months ago which did not work and he had another surgery. Since then, he has been complaining of neck pain radiating to both upper limbs. In the last two months the pain radiates to the right upper limb reaching the right thumb associated with paresthesia over the later aspect of the right forearm.”

  5. On 25 March 2023, Dr Darwish recommended the surgery now claimed for.

  6. Mr Foldi’s treating general practitioner has been Dr Hathiramani. The first record of neck pain is on 15 March 2022. There is a reference to requests made by Mr Foldi’s lawyers. The doctor then records:

    “—aso he tells me nbeck oain


    no radiculopathy on questioning


    agfaunb will need f2f exam


    is it work related?


    should be related to original injury from my understanding” (including typical typographical errors in quickly produced clinical notes).

  7. On 17 March 2022, Mr Foldi again attends Dr Hathiramani. He records that “his lawyewr has asked him to raise below issues w me” [sic]. In respect of the neck, the following is recorded:

    2) NECK

    “HE DESCRIBES SINCE INJ

    NECK PAIN

    HAS NEVER BEEN SX TOI ME BEFORE

    DESCRIBES CONSTANT FEELING OF WEAKNESS

    AND BURNING BOTH ARMS

    NUMBNESS

    NIL FOCAL NECL EXAMINATION WIRSE

    NO FOCAL RADICLOPATHY

    MRI AS POER PTS REQ

    SOME SUB NUMBNESS

    ALL OVER

    ? POSSIBEL DISC PROLAPSE W MECHANISM OF INJ MRI AND REV BUT ALSO STRONG LIKELIHOOD OF CRPS”

  8. There are further references to the neck from this date onwards, although given the issues in dispute they are not particularly relevant.

SUBMSISIONS

  1. The parties provided oral submissions at the hearing of the dispute, which were recorded. Accordingly, I do not intend to repeat them in great detail, but will summarise them here.

  2. The applicant commenced by referring to the relevant parts of Mr Foldi’s statement. He had pain in his left shoulder and neck but only put down left shoulder. The applicant the referred to the report of Dr Dixon, who takes a history of pain in the neck from the original accident, but with pain increasing over time, after the surgery. On balance, Dr Dixon supports a primary injury to the neck from the incident on 5 February 2020.

  3. The applicant discussed the history given in the report of Dr Rosenberg from 8 March 2024, which is again of immediate pain in the neck radiating, with more of a focus on the left shoulder issues. The applicant refers to the report of Dr Darwish.

  4. The applicant relies upon his statement and the opinion of Dr Dixon, and submits that there was an injury that occurred on 5 February 2020. In respect of the question of reasonably necessary, that is supported by Dr Darwish, and it is regarded as appropriate by Dr Dixon.

  5. In reply, the respondent pointed out that their case overall was that the applicant had failed to discharge his onus of proof. There are problems in the applicant’s case, and I could not be satisfied that there was an injury to the cervical spine suffered on 5 February 2020. The respondent then referred to the earlier two statements made by the applicant, submitting that they are at odds with the current case, and are admissions against interest in the case now presented.

  6. The respondent referred to particular clinical records, recorded by the applicant’s treating general practitioner, on 15 and 17 March 2022. The respondent submits that any submission that the clinical notes should be treated with caution, consistent with Demasi and the like, could not be accepted as the general practitioner takes comprehensive notes.

  7. The respondent referred to the letter sent by the applicant’s solicitors in response to a request for particulars, submitting that it should not be used to fill gaps in evidence. The respondent referred to the reports of Dr Darwish and Herald which are inconsistent with a case of injury occurring on 5 February 2022. It was acknowledged that Dr Smith takes a different attitude towards injury.

  8. The respondent submits that I would not feel an actual sense of persuasion that the injury to the cervical spine occurred as claimed by the applicant. In respect of the surgery claimed, I would have serious reservations about ordering this particular surgery in view of its potential to be unhelpful.

  9. This is fundamentally an onus case. The applicant relies on inconsistent evidence. The applicant has failed to address his subsequent employment in any evidence. I would be unsatisfied that Dr Dixon was looking at the whole picture.

  10. The applicant in response addressed the reasonably necessary question, noting that whilst Dr Dixon suggests that there may be an alternative procedure, he supports that the surgery claimed is reasonably necessary and causally related.

  11. In respect of the subsequent employment, the applicant submits that there is nothing in the material including the clinical notes to suggest an aggravation of a cervical spine condition related to later employment.

  12. The applicant accepts that the clinical notes are detailed but are conversational in tone. In respect of the earlier statements, the applicant uses the word “particularly”. He was told it was overuse by his doctor. Given the nature of the injury itself it is not difficult to see that a cervical spine complaint could arise from the mechanism of injury that occurred on 5 February 2020.

FINDINGS AND REASONS

  1. As the respondent identified during submissions, this case is one primarily concerned with onus. The applicant, in seeking to prove that he has suffered an injury as alleged, bears that onus. The evidence before me must induce an actual persuasion that the fact exists (Nguyen v Cosmopolitan Homes [2008] NSWCA 246).

  2. Critical in the present matter is the consideration of the actual case brought by the applicant, not some alternate case that may have been available on the evidence (or, in fact postulated by alternative evidence). In present circumstances, that is that the applicant suffered an injury on 5 February 2020, and not in the nature of a consequential condition, or as a consequence or following on from surgery undertaken to the left shoulder.

  3. The injury pleaded is not described in any particularly in the application. The description is simply “cervical spine”. There is no dispute, factually, about what occurred on 5 February 2020. Mr Foldi was using a mechanical winch to tighten a tarpaulin, covering a load for a delivery. The winch was stuck, so he used additional force (with two arms). Mr Foldi noticed that he had dislocated his left shoulder.

  4. Where there is a dispute, it concerns whether the cervical spine was injured in that incident. It was not initially part of the incident report, as Mr Foldi “thought I had dislocated the left shoulder”. This is not really an explanation for the failure to include the neck in the initial incident report. Critically, the information contained in Mr Foldi’s most recent statement is different (subtly, but importantly) to two earlier statements he provided. In his statement dated 7 March 2022, Mr Foldi states:

    “When I went to the site that I was delivering to, I contacted my Manager and advised him that I had dislocated my shoulder as a result of using the winch. Wayne Toovey assisted me in completing an incident report”.

  5. This history is repeated in the statement of 23 June 2023. By 7 June 2024, that paragraph included the following additional words: “I had pain in the area of the left shoulder and neck but only put down the left shoulder as I thought I had dislocated the left shoulder”.

  6. Mr Foldi now maintains a position that he has been experiencing pain and restriction in the neck from the original incident in February 2020. This is set out in his statement of 7 June 2024. However, this is inconsistent with Mr Foldi’s statement of 23 June 2023, where he states that he has been experiencing “pain and restriction in my neck particularly after the first surgery in August 2020”. Whilst Mr Foldi was informed that it was likely due to overuse, I do not put much weight on that component of his statement. It is difficult to determine what specifically Mr Foldi was informed, and in any event, he is not an expert to provide support for a causal connection (which, in this case, would defeat rather than support his claim).

  7. In circumstances where Mr Foldi has given conflicting evidence, contemporaneous treating material provides particularly pertinent. This is where Mr Foldi begins to encounter difficulties in satisfying the evidentiary onus he bears.

  8. Mr Foldi’s treating general practitioner is Dr Hathiramani. There are a series of clinical records from the date of injury that deal with various issues, including the injury suffered to the left shoulder. That injury obviously had some unfortunate and continuing consequences, including failed surgery. What is also clear is that there is no reference to the cervical spine or neck until 15 March 2022, at least two years after the injurious event on 5 February 2020. It is important to examine this clinical record closely. I accept, consistent with Demasi that inconsistencies between evidence given in clinical records and other evidence should be treated with caution. Per Davis v Council of the City of Wagga Wagga [2004] NSWCA 34, experience teaches that busy doctors sometimes misrecord or misunderstand histories. This is often seen with particularly sparse clinical notes.

  9. There are a number of aspects about Mr Foldi’s attendance on 15 March 2022 that must be considered. The first is that Mr Foldi reported to his doctor that his lawyer had requested MRIs of the other shoulder and neck. This reference to Mr Foldi’s lawyer is repeated on 17 March 2022. On 22 April 2022, there is reference to Mr Foldi being concerned that he can’t support is daughter and “DOESN’T THINK HE WILL GET 11% INJ”.

  10. The second issue, in respect of the 15 March 2022 attendance, is that his treating general practitioner questions whether it is work related. This was a telephone attendance, and the doctor states that he will need a face to face (“f2f”) exam. On 17 March 2022 that examination took place. On that occasion, Dr Hathiramani records that Mr Foldi describes neck pain since injury, but critically “HAS NEVER BEEN SX TOI ME BEFORE” [sic]. Here, it is taken that “sx” means symptoms.

  11. This provides an account, from Mr Foldi’s treating general practitioner, that he has never previously reported any symptoms in the neck. This is not the absence of records, or incomplete or sparse notes. This is a specific record that conflicts with the statement evidence given by Mr Foldi that he has had pain in his neck since the injury on 5 February 2020 (or potentially, as given in his earlier statements, since his first surgery in August 2020).

  12. Demasi does not allow me to ignore that specific record. I must treat it with caution. But where there is an explicit record that contradicts the history given by the applicant, I must give it some weight. This is particularly so in the present circumstances, where Dr Hathiramani provides comprehensive records of Mr Foldi’s attendances. The applicant describes them as “conversational”, but I do not accept that characterisation. They are explicit and detailed.

  13. It is not only in the treating material that there exists this apparent inconsistency in the evidence. According to Dr Smith, Mr Foldi did not complain of any cervical spine symptoms on examination on 25 January 2023. On 24 May 2024, Dr Smith states “he made no complaint to me of any neck injury being sustained”.

  14. Dr Rosenberg initially took a history without any reference to a neck injury. By 8 March 2024, after Mr Foldi attended for a re-examination and supplementary report, Dr Rosenberg amends the history he records. He states that Mr Foldi reported he had immediate pain in the neck at the time of injury, but far more attention was paid to the shoulder. He clarifies further that the pain did not first appear around the time of the shoulder surgeries, but at the time of the shoulder dislocation. I would note, however, that at the time of Dr Rosenberg’s supplementary report, Mr Foldi had been aware of the scope of the dispute about his cervical spine, and had been served with a number of s 78 notices concerning that being an injury. In the context of his expressed concerns, to his general practitioner about the potential of his claim for lump sum compensation not exceeding 11%, it would make sense for Mr Foldi to provide a different history on the later attendance.

  15. Dr Herald’s history of onset of symptoms is from around March 2021. He does not take a history of a neck injury occurring on 5 February 2020, or from symptoms at that time.

  16. On the other hand, Dr Dixon takes a history of injury to the neck on 5 February 2020, including pain in the neck from that time, which was more prominent after the first surgery in August 2020. This report is dated 21 January 2025. It is unsurprising that Dr Dixon takes that history, which is consistent with the history given in Mr Foldi’s statement of 7 June 2024, and the changed history he gave to Dr Rosenberg. By this stage Mr Foldi’s story had changed.

  17. Dr Darwish, whose recommendation for surgery forms the basis for this claim, does not take a history of injury on 5 February 2020. Rather, he finds a further potential date for the onset of symptoms, 10 months prior to his report (of 7 February 2023). This would be a symptom date of around April 2022. This is close to the initial report of symptoms to Mr Foldi’s treating general practitioner of 15 March 2022.

  18. The applicant’s case is that he has always had symptoms, since the injury on 5 February 2020. That is when he says he injured his neck. The problem I have with accepting that case is the inconsistency in the lay and medical opinions to support that. Mr Foldi’s evidence has changed. Different histories are recorded in different medical opinions. His own treating surgeon does not record an injury on 5 February 2020, but rather the onset of neck symptoms over two years later.

  19. The closest Mr Foldi gets is in a few references in physiotherapy notes. I have difficulty accepting those as proving anything connected to the cervical spine. It is not clear that they are sufficiently differentiated from shoulder symptoms. There is no explanation or connection to a work injury. They stand on their own in all of the other medical evidence.

  20. I accept that the history Mr Foldi now gives, in his most recent statement, is consistent with that recorded in the opinion of Dr Dixon. That is not the question. The question is whether, on the balance of probabilities, Mr Foldi suffered an injury to his cervical spine on 5 February 2020. I must consider the case now presented in the context of the inconsistencies outlined above. The applicant’s submissions failed to deal with those submissions in a convincing way.

  21. I am not satisfied that the applicant suffered an injury to his cervical spine on 5 February 2020. It was not reported at that time. There is no record of symptoms given to his treating general practitioner, connected to an incident on that date, until 15 March 2022. Mr Foldi’s history has changed over the time, likely in response to the specific issue now disputed, that is that he did not have an injury on 5 February 2020.

  22. Accordingly, I will make an award for the respondent.

  23. As I am not satisfied that Mr Foldi has suffered an injury to the cervical spine, it is unnecessary to consider the issues raised by s 60 of the 1987 Act, which were addressed in submissions and disputed by the respondent.

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Nguyen v Cosmopolitan Homes [2008] NSWCA 246