Geale v KJR Piping Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	*Geale v KJR Piping Pty Ltd* [2025] NSWPIC 307
APPLICANT:	Geale
RESPONDENT:	KJR Piping Pty Ltd
MEMBER:	Karen Garner
DATE OF DECISION:	1 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment lump sum compensation pursuant to section 66; accepted injury to bilateral knees, bilateral elbows, right shoulder and scarring, left shoulder and scarring; whether applicant sustained injury pursuant to sections 4(a) and 9A to the cervical spine, lumbar spine and nervous system; Held – not satisfied on the balance of probability that the applicant sustained injury pursuant to sections 4(a) and 9A to the cervical spine, lumbar spine and nervous system; matter remitted to the President to be referred to a Medical Assessor for assessment of whole person impairment (WPI) in respect of the accepted injuries.
DETERMINATIONS MADE:	1. The Commission is not satisfied on the balance of probability that the applicant sustained any of the following injuries pursuant to ss 4(a) and 9A of the Workers Compensation Act 1987 (the 1987 Act), being: (a) injury on 14 August 2013, to his: (i) cervical spine; (ii) lumbar spine; (iii) nervous system, and (b) injury on 8 October 2015, to his: (i) cervical spine; (ii) lumbar spine; (iii) nervous system, (together referred to as the “disputed injuries”). The Commission orders: 2. Award for the respondent in relation to the disputed injuries. 3. The matter is remitted to the President to be referred to a Medical Assessor for an assessment as follows: Date of injury: 14 August 2013. Body parts: left lower extremity (knee); right lower extremity (knee); left upper extremity (elbow); right upper, extremity (elbow, shoulder), and TEMSKI/scarring (right shoulder, left knee, right knee). Method: whole person impairment. Date of injury: 8 October 2015. Body parts: left upper extremity (elbow, shoulder);right upper extremity (elbow), and TEMSKI/scarring (left shoulder, left elbow, right elbow). Method: whole person impairment 4. The materials to be referred to the Medical Assessor are to include: (a) Application to Resolve a Dispute (ARD) and attached documents, and (b) Reply to ARD and attached documents, noting that by agreement between the parties, the following reports are admitted into evidence and to be considered for the purposes of history only: (i) reports of Dr Kalnins dated 24 February 2015, 24 March 2015, and 16 April 2014; (ii) report of Dr Smith dated 7 April 2017; (iii) report of Professor Cunning dated 16 August 2016, and (iv) report of Dr Powell dated 23 September 2019. 5. The parties have liberty to apply, within seven days of the date of this order, in relation to the terms of the referral to a Medical Assessor.

STATEMENT OF REASONS

BACKGROUND

Geoffrey John Geale (the applicant) was employed by KJR Piping Pty Ltd (the respondent) a sheet metal worker from about 2012 to June 2016.
The applicant has claimed permanent impairment lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act):
(a) in the amount of $146,850 for 56% whole person impairment (WPI) for injury pursuant to ss 4(a) and 9A of the 1987 Act on 14 August 2013 in respect of the:
(i)left knee;
(ii)right knee;
(iii)left elbow;
(iv)right elbow;
(v)right shoulder;
(vi)cervical spine;
(vii)lumbar spine;
(viii)neurological condition, and
(ix)scarring to the right shoulder, left knee and right knee, and
(b) in the amount of $150,800 for 45% WPI for injury pursuant to ss 4(a) and 9A of the 1987 Act on 8 October 2015 in respect of the:
(i)left elbow;
(ii)left shoulder;
(iii)right elbow;
(iv)cervical spine;
(v)lumbar spine;
(vi)neurological condition, and
(vii)scarring to the left shoulder, left elbow and right elbow.
The respondent’s insurer accepted, and there is no dispute that, in the course of his employment with the respondent, the applicant sustained injuries pursuant to ss 4(a) and 9A of the 1987 Act to the:
(a) right shoulder, right knee, left knee, right elbow and left elbow, with a date of injury of 14 August 2013, and
(b) right elbow, left elbow and left shoulder, with a date of injury of 8 October 2015,
(together referred to as “the accepted injuries”).
The insurer disputed that the applicant sustained injuries pursuant to ss 4(a) and 9A of the 1987 Act to the:
(a) cervical spine, lumbar spine and neurological condition, with a date of injury of
14 August 2013, and
(b) cervical spine, lumbar spine and neurological condition, with a date of injury of
8 October 2015,
(together referred to as “the disputed injuries”).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

On 3 April 2025, the applicant initiated proceedings in the Personal Injury Commission (Commission) by way of Application to Resolve a Dispute (ARD).
On 28 April 2025, the respondent lodged a Reply to ARD (Reply).
At a conciliation and arbitration hearing conducted by me on 29 May 2025 and on
6 June 2025, the applicant was represented by Mr Jon Trainor, counsel, instructed by Kenny Spring Solicitors. The respondent was represented by Mr Fraser Doak, counsel, instructed by Rankin Ellison Lawyers.
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.

ISSUES TO BE DETERMINED

There is no dispute that the applicant sustained injury pursuant to ss 4(a) and 9A of the 1987 Act to the:
(a) right shoulder, right knee, left knee, right elbow and left elbow, with a date of injury of 14 August 2013, and
(b) right elbow, left elbow and left shoulder, with a date of injury of 8 October 2015.
The matters in dispute and issues to be determined are:
(a) whether the applicant sustained injury pursuant to ss 4(a) and 9A of the 1987 Act to the:
(i)cervical spine, lumbar spine and neurological condition, with a date of injury of 14 August 2013;
(ii)cervical spine, lumbar spine and neurological condition, with a date of injury of 8 October 2015, and
(b) the extent and quantification of the applicant’s entitlement to payment of permanent impairment lump sum compensation pursuant to s 66 of the 1987 Act.

EVIDENCE

Oral evidence

There was no application to cross-examine and no oral evidence was adduced.

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(a) Reply to ARD and attached documents, noting that by agreement between the parties, the following reports are admitted into evidence and to be considered for the purposes of history only:
(i)reports of Dr Kalnins dated 24 February 2015, 24 March 2015, and
16 April 2014;
(ii)report of Dr Smith dated 7 April 2017;
(iii)report of Professor Cunning dated 16 August 2016, and
(iv)report of Dr Powell dated 23 September 2019.

Applicant’s evidence

The applicant gave evidence by way of a statement dated 8 November 2024.
The applicant stated that he worked for the respondent as a sheet metal worker from about 2012 to June 2016 when he was medically retired.
The applicant stated that his prior medical history included removal of two ribs about 30 and 35 years ago respectively and left arthroscopic repair of a rotator cuff in or about 2012.
The applicant stated that on 14 August 2013, during the course of his employment with the respondent, he slipped on dust as he was descending a ladder, and fell about 1.2m onto a steel plate, which caused him to put his left arm through a tank leg which caught and damaged his arm, be thrown sideways, hit his right shoulder on the steel plate, land with his hip on a pump, smash his elbows into the steel plate and injure his knees (“the 2013 accident”). The applicant stated that the 2013 accident caused him to sustain injuries to his left and right elbows, left and right knees, right shoulder, scarring of the left and right knees and right shoulder, and also, injuries to his cervical spine, lumbar spine and nervous system.
The applicant stated that on 8 October 2015, during the course of his employment with the respondent, he was working with other employees on a hatch at the rear end of a truck and as the applicant was holding a breaker bar above his head and pushing up against a pre-loaded bolt to undo it, when the bolt snapped, causing the hatch to suddenly give way and the breaker bar to fly upwards, causing his arms to be pushed upwards (“the 2015 accident”). The applicant stated that the 2015 accident caused him to sustain injuries to his left and right elbows, left shoulder, scarring of the left and right elbows and left shoulder, and also, injuries to his cervical spine, lumbar spine and nervous system.
In relation to his back injuries, the applicant stated that he first experienced back pain at about 18 years of age in about 1977 when he was working in a physical job as a sheet metal worker, however a specialist then advised him that his pain was just muscle pain and there was no back injury. The applicant stated that subsequently, his back pain did ease slightly and there were periods where his back did not hurt although he cannot recall the exact times.
The applicant stated that his back pain was aggravated following the 2013 fall, when he landed on his side on a pump and hit his hip on the pump which caused jarring to his back and neck. The applicant stated that since the 2013 accident, he has experienced significantly worse constant back pain.
The applicant stated that in the 2015 accident, his neck and back were pulled as his arms were jerked above his head when the bolt snapped suddenly causing the breaker bar to violently jerk upwards. The applicant stated that he has continued to experience significant constant back pain since the 2015 accident.
In relation to his neck injuries, the applicant stated that he first experienced headaches and neck pain in about 1989 when working in a physical job as a sheet metal worker/welder and he has had constant neck pain since that time although there have been periods where the pain eased. The applicant stated that his neck pain was treated with injections and pain medication and it never affected his ability to work.
The applicant stated that he has experienced constant and significantly worse neck pain since the 2013 accident, when his back and neck were jarred when he landed on his side on a pump and hit his hip on the pump.
The applicant stated that in the 2015 accident, when the bolt snapped suddenly causing the breaker bar to violently jerk upwards, the applicant’s arms were jerked above his head and the movement pulled his back and neck and he has continued to experience significant constant neck pain since the 2015 accident.
In relation to his neurological conditions, the applicant stated that he has constant pain in his elbows, tingling sensations in his arms, pains that go up and down his left arm which is worse at night time, his elbows constantly freeze and cannot be moved, pain in both forearms and a red-hot burning sensation on both arms. The applicant stated that his hands constantly shake and he struggles to pick up a cup. The applicant stated that the sensations are worsening in his left arm as a result of nerve damaged caused from surgeries and cortisone treatment to his left shoulder.
The applicant stated that he believes that the neurological conditions that he suffers from in relation to the pains in his arms and legs were caused by injuries which he sustained in both the 2013 accident when his elbows slammed into the deck, and the 2015 accident, when his arms were wrenched upwards by the bars. The applicant has had pains, tingling and burning sensations ever since the 2013 accident and the 2015 accident.
The applicant stated that he has attended various treating practitioners and undergone numerous medical treatments as a result of the 2013 accident, which included surgeries to his right and left shoulders, right and left elbows and left and right knees. The applicant has seen Dr David Abraham for his neurological symptoms and underwent nerve conduction studies to assess his neurological injuries.
The applicant stated that he has been unfit to work and has not returned to work since the 2015 injury. The applicant stated that he has ongoing disabilities as a result of the 2013 and 2015 accidents which include his hands shake, have a lack of feeling and no strength; constant pain in his back, neck and hands, and he regularly falls when his knees give way.

Treating medical evidence

The treating medical evidence contains a large volume of reports and clinical records of the applicant’s various treating practitioners including the Tindale Family Practice. I have referred to that evidence, where particularly relevant, in more detail below.

Evidence prior to the 2013 accident on 14 August 2013

The clinical records of the Tindale Family Practice include numerous records of the applicant being prescribed pain relief including Morphine, Pethadine and Tramol for neck and back pain and headaches from at least around 2002 up to 2013.
On 13 June 2009 Dr Anthony Fong, general practitioner, recorded that the applicant “has pain paraesthesia and dropping things with hand” and was referred to a neurologist for those symptoms.
On 20 October 2009 Dr Steven Wong, general practitioner, recorded that the applicant was treated for neck pain and that he had “still numb sensation in hands and drop things despite removal of 1^st ribs”.

Evidence after the 2013 accident on 14 August 2013

On 10 September 2013, Dr Arun Reddy, general practitioner, recorded that the applicant reported a work injury on 14 August 2013 to his left arm, left knee and right shoulder. No complaints of injury to the applicant’s neck or back were then recorded.
On 10 September 2013, Dr Kuo, orthopaedic surgeon, recorded the applicant’s history of injury of the 2013 accident. Dr Kuo recorded that as a result of the 2013 accident, the applicant hurt his right shoulder and left knee. Dr Kuo did not then record any complaints of injury or symptoms concerning the applicant’s neck nor back.
Clinical records of the Tindale Family Medical Practice record that the applicant subsequently reported ongoing pain and underwent various investigations and treatment in respect of shoulder and knee pain.
On 20 November 2013, Dr Reddy recorded that the applicant reported experiencing headaches.
On 25 November 2014, Dr Reddy recorded that the applicant reported feeling pins and needles in his fourth and fifth fingers.
On 18 December 2014, Dr Reddy recorded that the applicant reported feeling pins and needles and numbness in the last two fingers of his right hand.
On 9 January 2015, Dr Reddy recorded that the applicant reported feeling pins and needles in both hands.
On 27 January 2015, a motor nerve study and sensory nerve study of the applicant’s wrists was reported to show mild bilateral slowing of median conduction across the wrist consistent with early carpal tunnel syndrome; and right ulnar sensory potential was reduced which suggested some ulnar nerve dysfunction, but no focal ulnar nerve lesion was identified.
On 22 May 2015, Dr Abraham, sports and exercise medicine physician, reported a history of the applicant’s injuries related to the 2013 accident. Dr Abraham reported complaints of knee, elbow and shoulder injuries. Dr Abraham did record that the applicant’s hands felt weak, ached and were swollen and that the applicant had paraesthesia in some fingers. Dr Abraham did not report any injury nor symptoms related to the applicant’s neck nor back.
On 2 June 2015, Dr Anthony Fong, general practitioner, recorded a need for investigation of the applicant’s neck and lumbar spine.
On 19 June 2015, Dr Abraham reported that the applicant had problems related to gripping and weakness of his grip and paraesthesia in some fingers. Dr Abraham stated that the applicant reported having experienced cervical pain since the age of 18 years. Dr Abraham stated that the applicant showed features of bilateral posterior interosseous nerve entrapment at the elbow and radicular pain from his cervical spine. Dr Abraham stated that the applicant may have had an exacerbation of pre-existing cervical pathology during his shoulder surgery and stated that he had referred the applicant for an MRI of his cervical spine.
On 27 June 2015, the applicant underwent a CT lumbar spine which was reported to show degenerative disease with moderate canal stenosis at the L4/5 level; mild canal stenosis at the L2/3 and L3/4 levels; mild bilateral L4 neural foraminal stenosis; facet joint degenerative disease throughout the lumbar spine, most severe at the L5/S1 level.
On15 July 2015, Dr Reddy recorded that the applicant reported feeling pins and needles in his right hand and approval was sought for an MRI cervical spine.
On 12 August 2015, Dr Reddy recorded that an MRI cervical spine showed that the applicant had severe degenerative changes of his cervical spine.
On 14 August 2015, an MRI cervical spine was reported to show narrowing around the left C7 and C8 nerve roots with reduced C5/6 and C6/7 discs. The report noted that the applicant “returned for review of his bilateral elbow pain”. Dr Abraham noted that the applicant still had bilateral medial and lateral elbow pain with paraesthesia in both ring and little fingers.
Dr Abraham opined that the applicant’s pain was not due to the cervical pathology, stating that the changes on the cervical MRI could cause symptoms in the applicant’s hands but only on the left. Dr Abraham referred the applicant for ultrasound guided cortisone injections of both posterior interosseous nerves and the ulnar nerves in the cubital tunnel.

In his report dated 5 June 2014, Dr Grant Walker recorded a history that in September 2015, an MRI of the applicant’s cervical spine was reported to show some multilevel degenerative changes and the radiologist queried the possible compression of the left C7 and C8 nerve as well as the right. (However, I note that there is no report nor other reference to an MRI Cervical Spine in September 2015 in evidence.)

The clinical records of the Tindale Family Medical Practice did not record any reported pain or increased pain or symptoms in respect of the applicant’s neck or back caused by the 2013 accident.

Evidence after the 2015 accident on 8 October 2015

On 9 October 2015, Dr Catherine Bailey, general practitioner, recorded that the applicant reported a work injury on 8 October 2015 to his left shoulder, both wrists, left elbow, both biceps. The applicant reported that he initially felt pins and needles down his left arm which was sore. No complaints of injury to the applicant’s neck or back were then recorded.
On 12 October 2015, Dr Bailey recorded that on 8 October 2015 the applicant jarred his shoulder and felt pins and needles from the elbow level affecting the whole hand. No complaints of injury to the applicant’s neck or back were then recorded.
On 26 October 2015, Dr Anthony Fong, general practitioner, recorded “w/c general elbow irritation and paresthersia [sic] with the ulner [sic] distribution, also consistent [sic] with old injury I shoulder…”.
Various clinical records of the Tindale Family Medical Practice record that from
26 October 2015, the applicant reported ongoing elbow, shoulder and knee pain and underwent various treatments for that pain.

On 9 November 2015, Dr Fong referred the applicant to Dr David Abraham for an opinion “with a new [left] shoulder and forearms injury from an accident on 9/9/15”. Dr Fong recorded a medical history which included chronic neck pain. The letter did not indicate that the applicant sustained neck or back injury from the 2015 accident.
On 23 November 2015, Dr Abraham reported that the applicant has had his previous work cover claims closed, however on 9 October 2015, the applicant had a work injury and experienced immediate left shoulder pain and bilateral forearm pain, pain with lifting and gripping and weakness of both hands. Dr Abraham did not record any report of injury to the applicant’s neck nor back.
On 27 January 2016, a nerve conduction study was reported to show some slight changes of median nerve compression at the wrists (carpal tunnel syndrome) and a reduction in amplitude of the right ulnar nerve but no slowing of motor conduction across the elbow segment.
On 17 February 2016, Dr Warren Kuo, orthopaedic surgeon, reported to the insurer in relation to the applicant’s injuries. Dr Kuo recorded a history that the applicant sustained injuries to his left shoulder, right shoulder and left knee. Dr Kuo did not record any neck or back symptoms or injury caused by the 2013 accident nor the 2015 accident.
On 1 September 2016, Dr Fong recorded that the applicant reported paraesthesia of his arms.
On 4 November 2016, a nerve conduction study was reported as normal.
On 9 January 2017, Dr Fong recorded that the applicant reported that he had two falls over the Christmas period which upset his back, neck and right shoulder.
On 27 March 2017, Dr Fong recorded that the applicant reported that he had two more falls and had sore shoulder, hips and back.
On 2 July 2018, Dr Fong recorded that the applicant had neck pain.
On 9 August 2018, Dr Steven Wong, general practitioner, recorded that the applicant had persistent pain in his right elbow, shoulder, knees, neck and back.
On 26 June 2019, Dr Gary Chong, general practitioner, recorded that the applicant had “ongoing back pain thru W/C” and that the applicant required a back brace.
The clinical records of the Tindale Family Medical Practice did not record any reported pain or increased pain or symptoms in respect of the applicant’s neck or back caused by the 2015 accident (with the possible exception of Dr Gary Chong’s clinical note entered on 26 June 2019 which is referred to above).

Independent medical evidence

Dr Jonathan Negus, orthopaedic surgeon, independent medical expert qualified by the applicant

In a report dated 29 March 2023, Dr Negus recorded a history of the applicant’s injuries.
In relation to the 2013 accident, Dr Negus recorded that the applicant slipped on a ladder and fell 1.2m, and threw his left arm through a cross leg of a tank to avoid a further 3m drop and his arm caught and he felt a tear in the volar aspect of his arm and forearm. Dr Negus recorded that the applicant was then thrown sideways, landing on his right hip impacting on a pump, hitting his right shoulder on a steel plate and both knees and then both elbows smashed into the steel plate and the applicant subsequently underwent treatment for those injuries. Dr Negus recorded that the applicant had immediate pain in both elbows, left arm, right shoulder and both knees, however he had no immediate neck pain nor lower back pain.
In relation to the 2015 accident, Dr Negus recorded that the breaker bar violently jerked upwards, which placed stress on the applicant’s neck, left shoulder, both elbows and back, which caused rupture of the applicant’s left bicep and right rotator cuff and aggravated his previously asymptomatic elbows.
Dr Negus recorded that the applicant reported restricted movement and a general, constant pain in his neck which was mainly on the right side but was now on both sides, and when the applicant looked up the pain was worse and his neck locked; the applicant got severe headaches; and pain and stiffness in his lumbar spine and wore a back brace for more physical activities.
On examination, Dr Negus recorded that the applicant had stiffness in his neck, weakness of his biceps and triceps; reduced sensation in his hands, more so on the ulnar aspect on the left; stiffness in the lumbar spine and reduced power from L2-L5 of 4/5 on each side and reduced sensation on the left side at L2 Nd L5 with normal sensation elsewhere.
Dr Negus noted investigations which included an MRI cervical spine on 20 July 2015 which was reported to show moderate spondylitic change and disc degeneration at the mid to lower cervical levels, left 6/7 had uncovertebral osteophyte on the left side with mild to moderate left foraminal compromise with potential first C7 left impingement, at C7/T1 uncovertebral osteophyte on the left again resulting in mild to moderate left foraminal compromise with potential for impingement of the left C8 nerve root, some osteophytes at C3/4 with mild to moderate right foraminal compromise potentially of the right C4 nerve root.
Dr Negus opined that the applicant suffered injury to his neck, lower back, shoulder, elbows and knees in the 2013 accident.
In relation to the applicant’s neck, Dr Negus noted that the applicant displayed signs of stiffness in the cervical spine with pain radiating into his head and severe headaches with no radicular signs and that imaging showed potential for nerve root impingement without any clear impingement of a particular nerve root.
In relation to the applicant’s lumbar spine, Dr Negus noted that the applicant had radicular symptoms from the lumbar spine with back pain radiating to his buttocks, limited straight leg raises and asymmetry of movement, power reduced through pain and reduced sensation on the left side from L2-L5. Dr Negus noted that the CT of the applicant’s lumbosacral spine showed mild bilateral L4 neural foraminal stenosis, which was consistent with the applicant’s radicular symptoms. Dr Negus expressed the opinion that the applicant’s injury was an exacerbation of pre-existing spondylosis.
Dr Negus stated that “In relation to the history given to me by the patient and the mechanism of trauma, the production of the above injuries is consistent with both accidents as described”.
Dr Negus assessed total WPI on the basis that the applicant sustained impairment of the cervical spine and the lumbar spine arising from the 2013 accident and that the applicant also sustained impairment of the cervical spine and the lumbar spine arising from the 2015 accident. Dr Negus applied deductions for pre-existing injuries to the applicant’s cervical spine and lumbar spine.
In a supplementary report dated 19 September 2024, Dr Negus provided an apportionment of WPI between injuries sustained in the 2013 accident and injuries sustained in the 2015 accident. In respect of the applicant’s cervical spine, Dr Negus apportioned 0% to the 2013 accident and 100% to the 2015 accident. In respect of the applicant’s lumbar spine,
Dr Negus apportioned 50% to the 2013 accident and 50% to the 2015 accident. Dr Negus did not provide any explanation or rationale for those apportionments.

Dr John Bosanquet, orthopaedic surgeon qualified by the respondent

Dr Bosanquet reported on the 2013 accident in reports dated 29 May 2024, 1 August 2024 and 21 October 2024.
In relation to the 2013 accident, in his report dated 29 May 2024, Dr Bosanquet reported a history of injury that the applicant injured his cervical spine, lumbar spine, right shoulder, both knees and both elbows when he slipped on a ladder, put his left arm out through a cross beam then fell sideways onto a pump below. Dr Bosanquet stated that the applicant reported current symptoms which included cervical spine symptoms of left-sided neck and shoulder pain and restriction of movement to the left side and some restriction of rotation to the right with restricted flexion and extension. Dr Bosanquet did not record any reported current symptoms in respect of the applicant’s lumbar spine. Dr Bosanquet referred to various medical reports and investigations. Dr Bosanquet reported that, on examination, there was no specific tenderness of the applicant’s cervical spine and flexion, extension, rotation and lateral bending were 50% of normal.
Dr Bosanquet opined that the applicant suffered injury to his cervical spine, lumbar spine, right shoulder, right hip, both elbows and knees in the 2013 accident.
In relation to the applicant’s neck, Dr Bosanquet diagnosed a soft tissue injury which aggravated pre-existing degenerative changes being spondylosis cervical spine.
In relation to the applicant’s lumbar spine, Dr Bosanquet diagnosed a soft tissue injury which aggravated pre-existing degenerative changes being spondylosis lumbar spine.
Dr Bosanquet opined that the 2013 accident was a substantial contributing factor to the soft tissue injuries of his cervical spine and lumbar spine which were aggravation of his pre-existing degenerative changes.
In respect of injury arising from the 2013 accident, Dr Bosanquet assessed 22% total WPI, which was calculated on the basis of 5% WPI of the cervical spine, with a 50% deduction for pre-existing injury and 1% due to injury arising from the 2015 accident, giving a total of 2% WPI for the cervical spine and 5% WPI of the lumbar spine, with a 50% deduction for pre-existing injury and 1% due to injury arising from the 2015 accident, giving a total of 2% WPI for the lumbar spine.
In a supplementary report dated 1 August 2024, Dr Bosanquet stated that “there is no specific evidence that the applicant injured his lumbar spine in the 2013 accident”. Further, Dr Bosanquet stated that, on review of his previous report and the evidence, “it is my subsequent opinion that there was no injury to his cervical spine. There has been no radiological investigations, which would have been the case if there were an injury at the time”. Dr Bosanquet stated that, in view of his updated opinion, the impairment of 2% each for the applicant’s cervical and lumbar spine needed to be deducted from Dr Bosanquet’s previous assessment of total WPI, giving a total WPI of 19% rather than 22% in respect of injury arising from the 2013 accident.
In a further report dated 21 October 2024, Dr Bosanquet issued an amended independent medical examination report in relation to consulting with the applicant on 14 May 2024.
Dr Bosanquet repeated the history of injury set out in his report dated 29 May 2024, which included that the applicant injured his cervical and lumbar spine, right shoulder, both elbows and both knees in the 2013 accident. Dr Bosanquet stated that the applicant reported current symptoms which included left-sided neck and shoulder pain and restriction of movement to the left side and some restriction of rotation to the right with restricted flexion and extension. Dr Bosanquet reported that, on examination, there was no specific tenderness of the applicant’s cervical spine and that flexion, extension, rotation and lateral bending were 50% of normal. Dr Bosanquet did not record any reported current symptoms in respect of the applicant’s lumbar spine. Dr Bosanquet referred to various medical reports and investigations. Dr Bosanquet reported that, on examination, there was no specific tenderness of the applicant’s cervical spine and flexion, extension, rotation and lateral bending were 50% of normal.
Dr Bosanquet opined that the applicant suffered injury to his cervical spine, lumbar spine, right shoulder and both knees in the 2013 accident.
In relation to the applicant’s neck, Dr Bosanquet diagnosed a soft tissue injury which aggravated pre-existing degenerative changes being spondylosis cervical spine.
In relation to the applicant’s lumbar spine, Dr Bosanquet diagnosed a soft tissue injury which aggravated pre-existing degenerative changes being spondylosis lumbar spine.
Dr Bosanquet opined that the 2013 accident was a substantial contributing factor to the soft tissue injuries of his cervical spine and lumbar spine which were aggravation of his pre-existing degenerative changes.
In respect of injury arising from the 2013 accident, Dr Bosanquet assessed 18% total WPI, which was calculated on the basis of 5% WPI of the cervical spine, with a 100% deduction for pre-existing injury, giving a total of 0% WPI for the cervical spine and 5% WPI of the lumbar spine, with a 100% deduction for pre-existing injury, giving a total of 0% WPI for the lumbar spine.
Dr Bosanquet reported on the 2015 accident in reports dated 15 May 2024 (including an amended report dated 15 May 2024) and 1 August 2024.
In relation to the 2015 accident, in his report dated 15 May 2024, Dr Bosanquet reported a history of injury that the applicant injured his neck, back, left shoulder and both elbows when the bolt snapped, causing severe jerking of the bar. Dr Bosanquet stated that the applicant reported current symptoms which included cervical spine symptoms of left-sided neck and shoulder pain and restriction of movement to the left side and some restriction of rotation to the right with restricted flexion and extension. Dr Bosanquet did not record any reported current symptoms in respect of the applicant’s lumbar spine. Dr Bosanquet referred to various medical reports and investigations. Dr Bosanquet reported that, on examination, there was no specific tenderness of the applicant’s cervical spine and flexion, extension, rotation and lateral bending were 50% of normal.
Dr Bosanquet opined that the applicant suffered injury to his neck, lower back, shoulder, elbows and knees in the 2015 accident.
In relation to the applicant’s neck, Dr Bosanquet diagnosed a soft tissue injury which aggravated pre-existing degenerative changes being spondylosis cervical spine.
In relation to the applicant’s lumbar spine, Dr Bosanquet diagnosed a soft tissue injury which aggravated pre-existing degenerative changes being spondylosis lumbar spine.
Dr Bosanquet opined that the applicant’s lumbar spine condition was “most likely to have been caused by the injury on 14 August 2013 falling from the ladder. It has been aggravated by the injury in 2015”.
Dr Bosanquet opined that the 2015 accident was a substantial contributing factor to the soft tissue injuries of his cervical spine and lumbar spine which were aggravation of his pre-existing degenerative changes.
In respect of injury arising from the 2015 accident, Dr Bosanquet assessed total 15% WPI, which was calculated on the basis of 5% WPI of the cervical spine, with a 50% deduction for pre-existing condition and 2% due to injury arising from the 2013 accident, giving a total of 1% WPI for the cervical spine and 5% WPI of the lumbar spine, with a 50% deduction for pre-existing condition and 2% due to injury arising from the 2013 accident, giving a total of 1% WPI for the lumbar spine.
In a further supplementary report dated 1 August 2024, Dr Bosanquet stated that:
“On review of my report and the evidence, it is my subsequent opinion that there was no injury to his cervical spine [arising from the 2015 accident]. There has been no radiological investigations, which would have been the case if there were an injury at the time.
…
On review of this patient, there is no specific evidence that he injured his lumbar spine [in the 2015 accident].
It is my opinion that this is not a consequential injury on review of the report. It is solely due to pre-existing age-related changes.”
Dr Bosanquet stated that, in view of his updated opinion, the impairment of 1% each for the applicant’s cervical and lumbar spine needed to be deducted from Dr Bosanquet’s previous assessment of total WPI, giving a total WPI of 13% rather than 15% in respect of injury arising from the 2015 accident.
In an amended report dated 15 May 2025 (Reply 101), Dr Bosanquet repeated a reported history of injury that the applicant injured his neck, back, left shoulder and both elbows when the bolt snapped, causing severe jerking of the bar. Dr Bosanquet stated that the applicant reported current symptoms which included cervical spine symptoms of left-sided neck and shoulder pain and restriction of movement to the left side and some restriction of rotation to the right with restricted flexion and extension. Dr Bosanquet did not record any reported current symptoms in respect of the applicant’s lumbar spine. Dr Bosanquet referred to various medical reports and investigations. Dr Bosanquet reported that, on examination, there was no specific tenderness of the applicant’s cervical spine and flexion, extension, rotation and lateral bending were 50% of normal.
Dr Bosanquet opined that the applicant suffered soft tissue injury to both shoulders, both elbows and both knees in the 2015 accident.
However, in relation to the applicant’s neck, Dr Bosanquet diagnosed a soft tissue injury which aggravated pre-existing degenerative changes being spondylosis cervical spine.
In relation to the applicant’s lumbar spine, Dr Bosanquet diagnosed a soft tissue injury which aggravated pre-existing degenerative changes being spondylosis lumbar spine.
Dr Bosanquet opined that the applicant’s lumbar spine condition was “most likely to have been caused by the injury on 14 August 2013 falling from the ladder. It has been aggravated by the injury in 2015”.
Dr Bosanquet opined that the 2015 accident was a substantial contributing factor to the soft tissue injuries of his cervical spine and lumbar spine which were aggravation of his pre-existing degenerative changes.
In respect of injury arising from the 2015 accident, Dr Bosanquet assessed total 12% WPI, which was calculated on the basis of 5% WPI of the cervical spine, with a 100% deduction for pre-existing injury/condition, giving a total of 0% WPI for the cervical spine and 5% WPI of the lumbar spine, with a 100% deduction for pre-existing injury/condition, giving a total of 0% WPI for the lumbar spine.

Dr Paul Teychenne, consultant neurologist, independent medical expert qualified by the applicant

In a report dated 17 August 2023, Dr Teychenne recorded a history reported by the applicant.
In relation to the 2013 accident Dr Teychenne reported that the applicant stated that he fell 1.2m and during the fall his head was jerked laterally to the right, and that his “head was acutely laterally flexed to the right”. Dr Teychenne reported that the applicant felt neck pain and stiffness around three to four hours after the injury, however, later in the report, somewhat inconsistently, Dr Teychenne stated that the applicant “indicated that at the time of the fall on 14 August 2013, he experienced severe pain over the back, in the neck across the left and right posterior torso from C4 down to T4, the pain extending down the dorsal aspect of the right arm and ventral aspect of the left arm”. Dr Teychenne also recorded that the applicant stated that the applicant felt that his legs were wobbly and not normal after the fall and he felt he would fall with some loss of strength in his legs. Dr Teychenne also recorded that the applicant reported also developing other symptoms following the 2013 accident which included more marked lumbar spine pain (which he had experienced since the age of 18 years), tremoring, weakness and giving way of his legs and developing tremor in the whole body from the neck down, movements within his fingers and difficulty with finger movements, giving way of his legs and throbbing cervicogenic headaches and imbalance.
In relation to the 2015 accident, Dr Teychenne reported that the applicant stated that he was thrown back falling back with his head extended back. Dr Teychenne recorded that the applicant described that following the 2015 accident, he experienced increased pain over the medial aspect of the suprascapular region, tremor in both hands, aggravated headache, weakness in both hands, dropping articles out of his hands and discolouration of his hands.
Dr Teychenne reported that the applicant described subsequently experiencing various other symptoms in his bilateral hands, which included hand tremor, choreiform like movements, dropping objects, sensations of pins and needles and numbness. Dr Teychenne noted that the applicant also described more recent shots of pain up the left posterior torso, right leg and left arm and also constipation, bladder urgency, decrease in erections, light-headedness, giving way of his legs, jerkiness of his torso and arms, insomnia and psychological symptoms.

Dr Teychenne noted that, on examination, the applicant was unsteady and had collapse of both legs; had decreased flexion, extension and rotation and pain of the lumbar spine and decreased extension and pain of the neck.
Dr Teychenne noted that he had reviewed various medical reports and investigations including the notes of the Tindale Family Practice, but that he had not seen a report of the MRI scan of the cervical spine on 20 July 2015.

Dr Teychenne diagnosed incomplete cervical cord lesion sustained in the 2013 accident and an exacerbation of the incomplete cervical cord lesion sustained in the 2015 accident.
Dr Teychenne stated that:
“It was apparent in my review of Mr Geale on 1 March 2023 and on review of the history and physical obtained on 10 September 2019 that Mr Geale had sustained an incomplete cervical cord injury as a result of the fall on 14 August 2013. He had an immediate spinal shock after that fall and he had evidence of central spinal stenosis on CT scan as well as evidence of cord flattening on MRI scan prior to the fall. The central spinal stenosis noted on CAT scan of the cervical spine and the cord flattening noted on MRI scan of the cervical spine indicated that Mr Geale was at significant risk of an injury of the cervical spinal cord as a result of the fall on 14 August 2013. The subsequent symptoms and signs as documented were quite consistent with an incomplete cervical cord lesion. His pain was quite consistent with neuropathic pain secondary to an incomplete central cervical cord lesion and the distribution of the pain was quite consistent with spinal pain exacerbating into a migraine-like headache. His distribution of sensory deficits as described in the history and physical on 10 September 2019 was quite consistent with an incomplete cervical spinal cord lesion.
When I reviewed Mr Geale on 1 March 2023, I found a sensory level to pain, temperature and touch sensation at Tl 1 anteriorly and TIO posteriorly with a level to pain, touch and temperature sensation within the left and right upper arm. I found evidence of bilateral imbalance with collapse of the legs to the left and right when testing balance. He had collapse of the legs at the bottom of a squat and had to be lifted. He stated that there was nothing there. He immediately lost strength as he squatted. He was tremulous within the legs. When standing on his toes, he was unsteady on each toes. He had imbalance to the left and right on Sharpened Romberg test. He had slow small stepped gait with stiff legs which he had noted for five years. He had a stiff posture and he was slow standing up from a chair which he had noted for five years. He was slow in both left and right finger dexterity and coordination. He had upper motor neuron weakness in the upper limbs and intrinsic hand muscle weakness and quite significant myelopathic weakness in the lower limbs particularly weakness in the left and right hip flexion. He had core muscle weakness and a tremor with choreiform movement within the hands particularly when he pressed down on the palm of the left and right hand. He also had tremor when testing muscle power which is a common finding in patients with incomplete cervical cord syndromes. It was apparent on my reassessment of Mr Geale that he still had the clinical features of an incomplete central cervical cord syndrome. His clinical deficit had to some extent progressed in that his sensory deficits were more definitive and he had more marked myelopathic weakness. He also had more marked deficit in coordination in both hands. I not uncommonly see evidence of clinical progression in patients with incomplete cervical cord injuries.”
Dr Teychenne assessed 32% total WPI in respect of the applicant’s spine arising from the 2013 accident. Dr Teychenne assessed 16% total WPI in respect of the applicant’s spine arising from the 2015 accident. Dr Teychenne clarified his assessment of total WPI in a supplementary report dated 11 March 2024.

Dr Grant Walker, neurologist, independent medical expert qualified by the respondent

In a report dated 5 June 2024, Dr Walker reported a history of injury to the applicant’s right shoulder, left knee and right knee in the 2013 accident and injury to the applicant’s left shoulder and both elbows in the 2015 accident, and noted that the applicant also cited injuries to his neck and back.
Dr Walker noted that the applicant had a medical background of neck and back pain prior to the 2013 accident.
Dr Walker reported that the applicant stated that following the 2013 accident and the 2015 accident, he developed sensory symptoms, in his hands, particularly numbness. Dr Walker noted that the applicant described current symptoms which included hand numbness, abnormal sensation over all of his arms and his legs, and hand tremor.
Dr Walker reported that, on examination, the applicant walked with a slight limping gait due to pain in his legs; would not give proper effort when assessing strength in the upper limbs and has ‘giveway’ weakness; had not muscle wasting in his hands; had brisk reflexes in both upper and lower limbs but not abnormally so; has very poor movement of his shoulders; and has a mild tremor of the outstretched hands consistent with an essential tremor.
Dr Walker referred to investigations including an MRI of the applicant’s cervical spine performed in September 2015 which showed some multilevel degenerative changes and the radiologist queried the possible compression of the left C7 and C8 nerve as well as the right Ct; a nerve conduction study on 27 January 2016 which showed some slight changes of median nerve compression at the wrists (carpal tunnel syndrome) and a reduction in amplitude of the right ulnar nerve but no slowing of motor conduction across the elbow segment; a nerve conduction study on 4 November 2016 was normal; and a CT of the applicant’s lumbar spine.
Dr Walker opined that, neurologically, the applicant does not have any proven diagnosis apart from an essential tremor. Dr Walker stated that the applicant has no neurological injury arising from either the 2013 accident or the 2015 accident and the essential tremor is related to the applicant’s age. On that basis, Dr Walker assessed 0% WPI in respect of neurological injury.
Dr Walker expressly disagreed with the opinion of Dr Teychenne that the applicant sustained an incomplete cervical cord lesion. Dr Walker stated that “This concept put forward by Dr Teychenne is not accepted by the wider neurological community. This is a concept that Dr Teychenne has been putting forward now involving most patients that he sees for a couple of decades”. Dr Walker stated that Dr Teychenne’s report had no scientific basis.

Dr George Kalnins, orthopaedic surgeon, independent medical expert qualified by the respondent

Dr Kalnins provided evidence by way of reports dated 24 February 2015, 24 March 2025 and 16 April 2015. Having regard to the provisions of Regulation 44 of the Workers Compensation Regulation 2016 (WCR) and as agreed between the parties, Dr Kalnins’ evidence is considered only for the purpose of historical background.
I note that in Dr Kalnins’ report dated 24 February 2015, the history of injury and present symptoms given by the applicant to Dr Kalnins’ which are recorded does not include reference to neck or back symptoms. However, Dr Kalnins did record that the applicant stated that he has had neck and back problems since he was 18 years of age.

Dr Anthony Smith, orthopaedic surgeon, independent medical expert qualified by the respondent

Dr Smith provided evidence by way of a report dated 7 April 2017. Having regard to the provisions of Regulation 44 of the WCR and as agreed between the parties, Dr Smith’s evidence is considered only for the purpose of historical background.
I note that in Dr Smith’s report dated 7 April 2017, the history of injury given by the applicant to Dr Smith which are recorded does not include reference to neck or back symptoms in relation to the 2013 accident and the 2015 accident.

Dr Greg Cameron, injury management consultant qualified by the respondent

Dr Cameron provided evidence by way of a report dated 16 August 2016. Having regard to the provisions of Regulation 44 of the WCR and as agreed between the parties,
Dr Cameron’s evidence is considered only for the purpose of historical background.
I note that in Dr Cameron’s report dated 16 August 2016, the history of injury given by the applicant to Dr Smith which are recorded does not include reference to neck or back symptoms in relation to the 2013 accident and the 2015 accident. Dr Cameron recorded that the applicant did complain of current symptoms which included “back and neck problems, which he has had since aged 17” which Dr Cameron stated were unrelated to the 2013 accident and the 2015 accident. Dr Cameron also recorded that the applicant had no feeling on his fingers and dropped things.

Professor William Cunning, orthopaedic surgeon, independent medical expert qualified by the respondent

Professor Cunning provided evidence by way of a report dated 16 August 2016. Having regard to the provisions of Regulation 44 of the WCR and as agreed between the parties, Professor Cunning’s evidence is considered only for the purpose of historical background.
I note that in Professor Cunning’s report dated 16 August 2016, the history of injury given by the applicant to Professor Cunning which is recorded does not include reference to neck or back symptoms in relation to the 2013 accident. However, Professor Cunning did record that the applicant stated that he had experienced problems with his back and neck since the age of 18 years because of protruding discs. Professor Cunning recorded that the applicant reported current sensations of pins and needles in his hands.

Dr Richard Powell, orthopaedic surgeon, independent medical expert qualified by the respondent

Dr Powell provided evidence by way of a report dated 23 September 2019. Having regard to the provisions of Regulation 44 of the WCR and as agreed between the parties, Dr Powell’s evidence is considered only for the purpose of historical background.
I note that Dr Powell’s report dated 23 September 2019, the history of injury recorded by
Dr Powell does not include any reference to injury to the applicant’s neck nor back in relation to the 2013 accident and the 2015 accident.

SUBMISSIONS

Counsel for the applicant and counsel for the respondent both made lengthy oral submissions which were recorded and have been considered in full.
Both counsel referred to various evidence in support of their respective submissions.
In relation to the evidence, counsel agreed that the following medical reports are to be considered for the purposes of history only:
(a)    reports of Dr Kalnins dated 24 February 2015, 24 March 2015, and 16 April 2014;
(b)    report of Dr Smith dated 7 April 2017;
(c)    report of Professor Cunning dated 16 August 2016, and
(d)    report of Dr Powell dated 23 September 2019.
Mr Trainor submitted that this matter is complex and it is significant that the applicant’s evidence demonstrates that the applicant largely continued to work until June 2016 despite undergoing persistent severe pain including low back and neck pain and undergoing numerous treatments and surgeries caused by the injuries. Mr Trainor confirmed that the applicant only relies on frank injuries pursuant to ss 4(a) and 9A of the 1987 Act. In summary, Mr Trainor submitted for the applicant that, having regard to the evidence as a whole, and particular evidence to which Mr Trainor referred, the Commission should be satisfied on the balance of probabilities that the applicant sustained injury pursuant to ss 4(a) and 9A of the 1987 Act to the cervical spine, lumbar spine and neurological condition, with a date of injury of 14 August 2013, and injury to the cervical spine, lumbar spine and neurological condition, with a date of injury of 8 October 2015.
Mr Doak submitted for the respondent that having regard to the evidence as a whole, and particular evidence to which Mr Doak referred, the applicant has not discharged its burden of proof and the Commission should not be satisfied that the applicant sustained any of the disputed injuries. Mr Doak submitted that the applicant had multiple opportunities to complain about neck and back symptoms arising from the 2013 accident and the 2015 accident however there is no contemporaneous medical evidence that he did so and no explanation provided for that failure to report neck and back symptoms at an earlier time. Mr Doak submitted that on that basis, the Commission should not accept the applicant’s evidence that he did sustain injury to his neck and back in the 2013 accident and the 2015 accident as reliable or credible. Mr Doak noted that the applicant has a reported pre-existing history of neck and back problems since about the age of 18 years. On that basis, Mr Doak submitted that there should be an award for the respondent in respect of the disputed injuries.
In reply, Mr Trainor submitted that the applicant pleaded frank injuries sustained in both the 2013 accident and the 2015 accident. Mr Trainor submitted that the evidence demonstrates that the applicant’s neurological condition was not caused by a disease of a gradual process, rather it was caused by two separate frank injuries incurred in the 2013 accident and the 2015 accident. Mr Trainor submitted that the fact that there is an aggravation or exacerbation of symptoms does not necessarily involve a disease process in s 4(b) of the 1987 Act and that it is possible for the Commission to find a frank injury. Mr Trainor submitted that care needs to be taken with the clinical records because the treating medical evidence demonstrates that the applicant had a high pain threshold. A critical issue is whether the Commission accepts the applicant’s evidence.
Mr Doak submitted that it is open to the Commission to consider and weigh all the evidence.
Both counsel agreed that it is appropriate that the Commission remits the matter to the President to be referred to a Medical Assessor to determine the degree of WPI in respect of the accepted injuries and any of the disputed injuries which are found to have occurred.
In view of the complexity of the matter, both counsel agreed that it is appropriate that the parties are given liberty to apply, within seven days of the issue of an order, in relation to the terms of the referral to a Medical Assessor.

THE LAW

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer.
The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 9A of the 1987 Act states:
“(1)    No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)    The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f)the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)     This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
A commonsense evaluation of the causal chain is required. The legal test of causation was set out by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[1] (Kooragang), where Kirby J stated:
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”[2]
[1] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[2] Kooragang, at [461] (Sheller and Powell JJA agreeing).
His Honour stated at [463] – [464]:
“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 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. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
Although the High Court in Comcare v Martin[3] raised some concerns about the commonsense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the commonsense approach still has place in the application of the legislation to the present case.
[3] [2016] HCA 43, [42].

Principles regarding the discharge of the onus of proof were considered by President Keating in Department of Education & Training v Ireland[4] (Ireland). In order for the applicant to discharge the onus that he sustained the alleged injury, I “must feel an actual persuasion of the existence of that fact”.
[4] [2008] NSWWCCPD 134, [89], applying Nguyen v Cosmopolitan Homes [2008] NSWCA 246, per McDougall (McColl and Bell JJA agreeing) at [44]-[48].

CONSIDERATION

For the following reasons, I am unable to be satisfied on the balance of probability that the applicant sustained any injury pursuant to ss 4(a) and 9A of the 1987 Act:
(a) to the cervical spine, lumbar spine nor neurological injury on 14 August 2013, nor
(b) to the cervical spine, lumbar spine nor neurological injury on 8 October 2015.
I am satisfied on the balance of probability that the applicant had a history of significant neck and back pain and paraesthesia in his hands and dropping things prior to the 2013 accident because:
(a)    the clinical records of the Tindale Family Practice indicates that the applicant was prescribed pain relief including Morphine, Pethadine and Tramol for significant neck and back pain and headaches over a period of at least between 2002 and the 2013 accident;
(b)    the clinical records also show that at least in 2009, the applicant was referred to a neurologist for paraesthesia in his hands and dropping things, and
(c)    that is consistent with the applicant’s evidence that he had a longstanding prior history of neck and back pain.
In relation to the 2013 accident:
(a)    I note that the applicant’s evidence in that regard is substantially consistent with the various medical evidence and that the insurer has accepted liability for injuries to his left and right elbows, left and right knees, right shoulder, scarring of the left and right knees and right shoulder caused by the 2013 accident;
(b)    on that basis I accept that on 14 August 2013, as the applicant was descending a ladder during the course of his employment with the respondent, he slipped, fell about 1.2m onto a steel plate, caught his left arm as it went through a tank leg, was thrown sideways, hit his right shoulder and elbows on the steel plate, and landed with his hip on a pump;
(c)    the applicant has now also given evidence that the 2013 accident caused jarring to his back and neck when he landed on his side on a pump and hit his hip on the pump. That evidence is not supported by any other contemporaneous evidence nor treating medical reports or records however there is no evidence which directly contradicts the applicant’s evidence in that regard and the applicant was not cross-examined, and
(d)    I consider that it is logical, and indeed likely, and I accept that a fall of 1.2m onto a pump in the manner described by the applicant would cause jarring of the applicant’s body as a whole, including his back and neck.
In relation to the 2015 accident:
(a)    I note that the applicant’s evidence in that regard is substantially consistent with the various medical evidence and that the insurer has accepted liability for injuries to his left and right elbows, left shoulder, scarring of the left shoulder and both elbows caused by the 2015 accident;
(b)    on that basis, I accept that on 8 October 2015, during the course of his employment with the respondent, as the applicant was holding a breaker bar above his head and pushing up against a pre-loaded bolt to undo it, the bolt snapped, causing the hatch to suddenly give way and the breaker bar to fly upwards, causing the applicant’s arms to be pushed upwards;
(c)    the applicant has now also given evidence that in the 2015 accident, his neck and back were pulled as his arms were jerked above his head when the bolt snapped suddenly causing the breaker bar to violently jerk upwards. That evidence is not supported by any other contemporaneous evidence nor treating medical reports or records however there is no evidence which directly contradicts the applicant’s evidence in that regard and the applicant was not cross-examined, and
(d)    I consider that it is logical, and indeed likely, and I accept that the hatch suddenly giving way and the breaker bar flying upwards, causing the applicant’s arms to be pushed upwards pump in the manner described by the applicant would cause the applicant’s neck and back to be pulled as his arms were jerked above his head.
There is no contemporaneous general practitioner records or reports of specific injury or pain to the applicant’s neck or back caused by the 2013 accident and the 2015 accident.
I am not satisfied on the balance of probability that the applicant experienced any increased neck or back pain caused by the 2013 accident and the 2015 accident because:
(a)    the applicant’s evidence in that regard is not supported by any contemporaneous evidence;
(b)    in particular, the clinical records of the Tindale Family Medical Practice did not record any reported neck or back pain or increased neck or back pain following or caused by the 2013 accident or the 2015 accident;
(c)    Dr Negus recorded a history that the applicant had no immediate neck pain nor lower back pain caused by the 2013 accident. Dr Negus did not address the issue of immediate neck pain or lower back pain caused by the 2015 accident;
(d)    in Dr Kalnins’ report dated 24 February 2015, the history of injury and present symptoms given by the applicant did not include reference to neck or back symptoms (although Dr Kalnins did record that the applicant stated that he has had neck and back problems since he was 18 years of age);
(e)    on 9 November 2015, Dr Anthony Fong, general practitioner, referred the applicant to Dr David Abraham for an opinion “with a new [left] shoulder and forearms injury from an accident on 9/9/15”. Dr Fong recorded a medical history which included chronic neck pain. The letter did not indicate that the applicant sustained neck or back injury from the 2015 accident;
(f)    in Dr Cameron’s report dated 16 August 2016, the history of injury given by the applicant does not include reference to neck or back symptoms in relation to the 2013 accident and the 2015 accident (although Dr Cameron recorded that the applicant did complain of current symptoms which included “back and neck problems, which he has had since aged 17” which Dr Cameron stated were unrelated to the 2013 accident and the 2015 accident);
(g)    in Professor Cunning’s report dated 16 August 2016, the recorded history of injury given by the applicant does not include reference to neck or back symptoms in relation to the 2013 accident (although Professor Cunning did record that the applicant stated that he had experienced problems with his back and neck since the age of 18 years because of protruding discs);
(h)    the clinical records did not record any neck or back pain experienced by the applicant after the 2013 accident and the 2015 accident until 9 January 2017, when Dr Anthony Fong, general practitioner, recorded that the applicant reported that he had two falls over the Christmas period which upset his back, neck and right shoulder;
(i)    it was subsequent to those falls that there were further records in the clinical records of reported neck and back pain, commencing on 27 March 2017, when Dr Anthony Fong, general practitioner, recorded that the applicant reported that he had two more falls and had sore shoulder, hips and back;
(j)    in Dr Smith’s report dated 7 April 2017, the history of injury given by the applicant does not include reference to neck or back symptoms in relation to the 2013 accident and the 2015 accident;
(k)    on 2 July 2018, Dr Anthony Fong, general practitioner, recorded that the applicant had neck pain;
(l)    on 9 August 2018, Dr Steven Wong, general practitioner, recorded that the applicant had persistent pain in his right elbow, shoulder, knees, neck and back;
(m)     on 26 June 2019, Dr Gary Chong, general practitioner, recorded that the applicant had “ongoing back pain thru W/C” and that the applicant required a back brace;
(n)    in Dr Powell’s report dated 23 September 2019, the history of injury recorded by Dr Powell does not include any reference to injury to the applicant’s neck nor back in relation to the 2013 accident and the 2015 accident;
(o)    the clinical records of the Tindale Family Medical Practice did not record any reported pain or increased pain or symptoms in respect of the applicant’s neck or back caused by the 2015 accident (with the possible exception of Dr Gary Chong’s clinical note entered on 26 June 2019 which is referred to above);
(p)    it is not in dispute and I accept that the applicant continued to work up to the 2015 accident and that he ceased to work immediately following the 2015 accident and he has not since returned to work. There is no evidence which specifically addresses the impact of the applicant’s neck and back pain and symptoms on his capacity to work, noting that the applicant sustained the accepted injuries in the 2015 accident, and
(q)    considering the evidence as a whole, I do not consider that the weight of the evidence supports a finding that the applicant experienced any increased neck or back pain causally related to the 2013 accident and the 2015 accident.
In relation to symptoms of paraesthesia and neurological-type symptoms reported by the applicant:
(a)    various clinical records and reports recorded the applicant’s reports of experiencing feeling pins and needles in his hands and dropping objects from about November 2014, which was some 15 months after the 2013 accident;
(b)    on 14 August 2015, an MRI cervical spine was reported to show narrowing around the left C7 and C8 nerve roots with reduced C5/6 and C6/7 discs. The report noted that the applicant “returned for review of his bilateral elbow pain”, which indicates that the MRI cervical spine was requested for bilateral elbow pain, rather than other pain or symptoms such as neck symptoms or neurological symptoms. Dr Abraham noted that the applicant still had bilateral medial and lateral elbow pain with paraesthesia in both ring and little fingers. Dr Abraham opined that the applicant’s pain was not due to the cervical pathology, stating that the changes on the cervical MRI could cause symptoms in the applicant’s hands but only on the left. Dr Abraham referred the applicant for ultrasound guided cortisone injections of both posterior interosseous nerves and the ulnar nerves in the cubital tunnel;
(c)    Dr Catherine Bailey’s clinical note on 9 October 2015 that the applicant “initially [had] pins and needles down left arm” indicates that it had resolved by that time;
(d)    on 26 October 2015, Dr Anthony Fong, general practitioner, recorded “w/c general elbow irritation and paresthersia [sic] with the ulner [sic] distribution, also consistent [sic] with old injury I shoulder…” (my emphasis), and
(e)    considering the evidence as a whole, I do not consider that the weight of the evidence supports a finding that the applicant experienced such symptoms immediately following the 2013 accident, however such symptoms were consistently reported from about November 2014 including following the 2015 accident.
Considering Dr Negus’ evidence, I note that:
(a)    in relation to the 2013 accident, Dr Negus recorded a history that the applicant fell 1.2m, however Dr Negus did not record a history that the applicant injured his neck or back in the 2013 accident;
(b)    Dr Negus recorded a history that the applicant had no immediate neck pain nor lower back pain caused by the 2013 accident;
(c)    Dr Negus did not take account of the evidence of the applicant’s treating general practitioners contained in the clinical records of the Tindale Family Practice which did not record any reported neck or back pain or increased neck or back pain following or caused by the 2013 accident or the 2015 accident;
(d)    Dr Negus did not record a history as to whether the applicant had immediate neck pain nor lower back pain caused by the 2015 accident;
(e)    Dr Negus did not take a history of the applicant having neck and back pain at all;
(f)    Dr Negus stated that he considered statements of the applicant dated
15 March 2019, 22 May 2019 and 17 February 2021, which are not presently before the Commission;
(g)   in relation to the applicant’s neck, Dr Negus noted that the applicant displayed signs of stiffness in the cervical spine with pain radiating into his head and severe headaches with no radicular signs and that imaging showed potential for nerve root impingement without any clear impingement of a particular nerve root;
(h)    in relation to the applicant’s lumbar spine, Dr Negus noted that the applicant had radicular symptoms from the lumbar spine with back pain radiating to his buttocks, limited straight leg raises and asymmetry of movement, power reduced through pain and reduced sensation on the left side from L2-L5. Dr Negus noted that the CT of the applicant’s lumbosacral spine showed mild bilateral L4 neural foraminal stenosis, which was consistent with the applicant’s radicular symptoms. Dr Negus expressed the opinion that the applicant’s injury was an exacerbation of pre-existing spondylosis;
(i)    Dr Negus stated that “In relation to the history given to me by the patient and the mechanism of trauma, the production of the above injuries is consistent with both accidents as described”. Clearly, Dr Negus relied on the history given by the applicant. However, Dr Negus did not consider the clinical records and in particular the absence of contemporaneous records which were consistent with the history given by the applicant;
(j)    Dr Negus did not explain or reconcile the absence of immediate neck and back pain and the absence of contemporaneous reports of subsequent neck and back pain with his conclusions that the applicant injured his neck and back in both the 2013 accident and the 2015 accident, and
(k)    Dr Negus did not explain or reconcile the applicant’s extensive pre-existing history of neck and back pain with any ongoing symptoms, except to conclude that the 2013 accident and the 2015 accident caused aggravation of pre-existing pathology.
Considering Dr Bosanquet’s evidence, I note that:
(a)    in his report dated 29 May 2024, Dr Bosanquet initially opined that the applicant sustained injury to his lumbar spine and cervical spine in the 2013 accident. However, in his report dated 1 August 2024, Dr Bosanquet stated that “there is no specific evidence that the applicant injured his lumbar spine in the 2013 accident”. In his further report dated 21 October 2024, Dr Bosanquet expressed the opinion that the applicant did sustain injury to his lumbar spine and cervical spine in the 2013 accident, which were aggravation of pre-existing degenerative changes;
(b)    in his report dated 15 May 2024, Dr Bosanquet opined that the applicant sustained injury to his lumbar spine and cervical spine, which were an aggravation of pre-existing degenerative changes;
(c)    Dr Bosanquet seemed to assume aggravation of the applicant’s pre-existing spondylosis of the cervical spine and the lumbar spine but he did not specifically state the basis for that in his report;
(d)    read together, Dr Bosanquet’s reports provided no real explanation for his various changed opinions, and
(e)    in that context I found his reports to be inconsistent, contradictory and difficult to understand.
Considering Dr Teychenne’s evidence, I note that:
(a)    in relation to the 2013 accident, Dr Teychenne reported that the applicant stated that when he fell 1.2m, his head was jerked laterally to the right, and that his “head was acutely laterally flexed to the right”. Dr Teychenne reported that the applicant felt neck pain and stiffness around three to four hours after the injury, however, later in the report, somewhat inconsistently, Dr Teychenne stated that the applicant “indicated that at the time of the fall on 14 August 2013, he experienced severe pain over the back, in the neck across the left and right posterior torso from C4 down to T4, the pain extending down the dorsal aspect of the right arm and ventral aspect of the left arm”. That is inconsistent with the history recorded by Dr Negus who recorded a history that the applicant had no immediate neck pain nor lower back pain following the 2013 accident. Further, there is an absence of any contemporaneous evidence in that regard to that history that the applicant’s head was jerked and acutely laterally flexed to the right, that the applicant felt neck pain and stiffness around three to four hours after the injury and that he felt immediate severe pain in his back;
(b)    in relation to the 2015 accident, Dr Teychenne reported that the applicant stated that he was thrown back falling back with his head extended back. I note that there is no other evidence which supports Dr Teychennee’s statement that the applicant’s head extended back in the 2015 accident;
(c)    Dr Teychenne noted that he had reviewed various medical reports and investigations including the notes of the Tindale Family Practice, but that he had not seen a report of the MRI scan of the cervical spine on 20 July 2015;
(d)    Dr Teychenne had particular regard to the rapid escalation of the applicant’s symptoms shortly after the 2015 accident, particularly increased loss of feeling on the left and right arm and fingers, increased loss of grip in the hands, increased tendency to drop articles out of the hands and a tremor in the hands, noting that the applicant had never previously experienced tremor in the hands;
(e)    Dr Teychenne did not provide any analysis or explanation which reconciled the applicant’s post-accident symptoms with the pre-accident history of significant neck and back pain and also of dropping objects and sensations of pins and needles in his hands;
(f)    Dr Teychenne diagnosed that the injury arising from the 2015 accident was an exacerbation of incomplete cervical cord lesion sustained in the 2013 accident;
(g)    however, the applicant pleaded frank injuries sustained in both the 2013 accident and the 2015 accident. The applicant’s counsel submitted that, even though there may have been an exacerbation of neurological symptoms following the 2015 accident, the evidence demonstrates that the applicant’s neurological condition was not caused by a disease of a gradual process, rather it was caused by two separate frank injuries incurred in the 2013 accident and the 2015 accident, and
(h)    Dr Teychenne is the only expert who provided an opinion as to the cause of the applicant’s neurological symptoms and complaints apart from the hand tremor.
Considering Dr Grant Walker’s evidence, I note that:
(a)    Dr Walker referred to various imaging. In his report dated 5 June 2014,
Dr Walker recorded a history that in September 2015, an MRI of the applicant’s cervical spine was reported to show some multilevel degenerative changes and the radiologist queried the possible compression of the left C7 and C8 nerve as well as the right. However, I note that there is no report nor other reference to an MRI cervical spine in September 2015 in evidence;
(b)    Dr Walker opined that, neurologically, the applicant does not have any proven diagnosis apart from an essential tremor. Dr Walker stated that the applicant has no neurological injury arising from either the 2013 accident or the 2015 accident and the essential tremor is related to the applicant’s age. Dr Walker did not provide any opinion as to the cause of the applicant’s other reported neurological symptoms and complaints, and
(c)    Dr Walker expressly disagreed that the applicant sustained an incomplete cervical cord lesion, stating that such a concept is not accepted by the wider neurological community and has no scientific basis.
This is not a case where the factual and medical evidence is clear cut. The medical evidence in this case is particularly challenging for all of the reasons I have referred to above.

From the analysis of the evidence above, I note in particular that there is an absence of contemporaneous evidence of reported neck and back pain subsequent to the 2013 accident and the 2015 accident, a lack of imaging evidence which indicates relevant pathological changes and also the applicant’s extensive history of prior neck pain, back pain and some neurological symptoms have not been clearly analysed and reconciled in relation to the pain and symptoms which are alleged as the basis of the claimed injuries.
In that context, I do not find the evidence of any of the independent medical experts particularly persuasive.
Considering the evidence as a whole, and applying a commonsense evaluation of the causal chain, I do not feel an actual persuasion and I am not satisfied on the balance of probability that the required causal connection exists between the 2013 accident, the 2015 accident and any of the disputed injuries.
In particular, I am not satisfied that the applicant sustained any of the disputed injuries in the course of his employment with the respondent pursuant to s 4(a) of the 1987 Act and that his employment was a substantial contributing factor pursuant to s 9A of the 1987 Act.

SUMMARY

The Commission is not satisfied on the balance of probability that the applicant sustained any of the following injuries pursuant to ss 4(a) and 9A of the 1987 Act, being:
(a) injury on 14 August 2013, to his:
(v)cervical spine;
(vi)lumbar spine;
(vii)nervous system, and
(b) injury on 8 October 2015, to his:
(i)cervical spine;
(ii)lumbar spine, and
(iii)nervous system.
On that basis, it is appropriate for the Commission to enter the following orders:
(a)    award for the respondent in relation to the disputed injuries;
(b)    the matter is to be remitted to the President to be referred to a Medical Assessor for assessment of WPI in respect of the accepted injuries as agreed between the parties, and
(c)    the parties have liberty to apply, within seven days of the date of this order, in relation to the terms of the referral to a Medical Assessor.

[2025] NSWPIC 307

1 July 2025