Gibbs v T Meier-Smith & M.J. Smith

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gibbs v T Meier-Smith & M.J. Smith [2025] NSWPIC 315
APPLICANT:	Darren Gibbs
RESPONDENT:	T Meier-Smith & M J Smith
MEMBER:	John Wynyard
DATE OF DECISION:	2 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for consequential lumbar condition where claimant alleged his injured right shoulder gave way when he slipped going down stairs at home and fell on his lower back descending another flight on his back; whether claimant’s version supported by contemporaneous or other evidence; Mason v Demasi, Qannadian v Bartter Enterprises Pty Ltd and Etherton v ISS Property Services Pty Ltd considered and applied; Voudouris v TDV Constructions Pty Ltd, Shankar v Ceva Logistics (Australia) Pty Ltd and Transdev NSW South Pty Ltd v Twining considered; Held – contemporaneous clinical notes did not support claimant’s version; claimant failed to meet onus as to consequential condition; remainder of claim did not reach appropriate threshold; award for respondent.
DETERMINATIONS MADE:	The Commission finds: 1. The claim for consequential injury to the lumbar spine is dismissed. 2. The remaining claim for lump sum compensation in respect of the right upper extremity does not reach the s 66(1) Workers Compensation Act 1987 threshold. The Commission orders: 1. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Darren Gibbs, the applicant, brings an action against T Meier-Smith & M J Smith, the respondent, for lump sum benefits pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act) for injury to the right shoulder and scarring that occurred on 17 October 2020.
Mr Gibbs also sought compensation for a consequential injury to the lumbar spine.
Dispute notices were issued and the matter accordingly came before the Commission.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether Mr Gibbs had suffered a consequential condition to his lumbar spine.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

On 23 May 2025 this matter was heard on Teams. Mr Dewashish Adhikary of counsel appeared for the applicant briefed by Mr Jamie Nemme from Messrs LHD Lawyers.
Mr Daniel Stiles of counsel appeared for the respondent brief by Mr Karl Maakasa of Messes McCabe Lawyers. Ms Sarah Cutri appeared for the insurer.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Lodge Additional Documents by the respondent, registered
12 May 2025.

Oral evidence

Mr Gibbs was cross-examined.

FINDINGS AND REASONS

Injury to the right shoulder and scarring was admitted, and the dispute was as to whether
Mr Gibbs had suffered a consequential injury to his lumbar spine. This was alleged to have occurred on a date in July 2022 whilst Mr Gibbs was at home, when he slipped on a flight of stairs.
Mr Gibbs made a statement on 17 October 2024.[1] He said that on 17 December 2020 he injured his right shoulder whilst operating a mechanical harvesting machine. He attempted to push a branch aside but it snapped back unexpectedly and caused an acute hyperflexion injury.
[1] ARD pages 1- 2.
He sought treatment and eventually came to surgery with Dr Minas Petrelis on 16 March 2022. He indicated that he had suffered a lumbar spine injury on 17 October 2003 when he was working for a different employer and had settled his lump sum compensation claim in 2005. He said that following the shoulder surgery his recovery was “going smooth” until he suffered an incident around July 2022. He described the incident from [9] of his statement:
“9.     Living in a two-storey residence, I have a double stairwell that descends about to eight steps before reaching a platform/landing. Using my right arm to hold onto the rail as I walked down the first set stairs, I reached the platform/landing. I then turned to walk down with my right arm grasping the handrail, when I suddenly slipped as I took the first step down the second flight of stairs.
10.    I shifted my body weight onto my right shoulder, however, due to my due to my right shoulder injury and the resulting weakness, my right shoulder gave way under the force of my body weight. I released the rail and through (sic – threw) my right arm out, consequently falling heavily onto my lower back and sliding down the remaining six to seven steps. My lower back and right shoulder were in severe pain after this incident and it ultimately resulted in further injury to my right shoulder and aggravated my lumbar spine condition.”
11.   ….the fall significantly worsened my back pain, particularly with pain radiating down my left leg. I had not experienced such severe symptoms related to my lumbar spine for an extended period, which I would estimate to be at least 10 years, perhaps even longer.”
Mr Gibbs said that he consulted Dr Nguyen who referred him for an MRI right shoulder scan because "My predominant concern was my right shoulder given the recent surgery and treatment".
He said at [12]:
"I am advised that [Dr Nguyen] did not record a history of a fall in the clinical entry of 21 July 2022 and suggests that I suffered from mild chronic right shoulder pain."
Mr Gibbs said however that he provided the history of the fall to Dr Petrelis on
10 October 2022 but "had emphasised the impact it had on my right shoulder as that was the reason for my consultation with him."
He said that with regard to Dr Nguyen:
“We do occasionally suffer from communication issues due to a language barrier and it can be difficult communicating with him leading to misunderstandings."
As an example, Mr Gibbs referred to an entry on the 18 December 2023 in which Dr Nguyen misattributed his fall to the initial incident on 17 December 2020 when Mr Gibbs had tried to explain the relationship between the fall and the work injury. (In fact the misattribution was dated as “dec 2022”).[2]
[2] See ARD page 85.
Mr Gibbs said that his symptoms in his lumbar spine and right shoulder became much worse after he fell on July 2022.

MEDICAL

Dr James Bodel, orthopaedic surgeon

Dr Bodel's first report of 14 August 2024 gave an accurate account of the history of the injury to the right shoulder on 17 December 2020.[3] He took a history of the right shoulder treatment and noted that Mr Gibbs was cleared to return to work on suitable duties following surgery to the shoulder, which had been approved by the insurer.
[3] ARD page 11.
Dr Bodel then took the following history:[4]
“He was referred to WorkFocus to try and assist in rehabilitation. In July 2022, when he was recovering, he had a relapse of his symptoms. When he slipped on a set of stairs at his home, grabbed the railing with his right arm, which caused a further hyperflexion injury, and on that occasion, he developed increasing back pain and left leg pain. From the history given, it appeared that the slip and fall was the first event, but then when he went to try and save himself, his right arm was unable to support him causing the re-injury to the right shoulder and the re-aggravation of the back injury.”
[4] ARD page 13.
Dr Bodel noted the back injury of 2003. He noted some inconsistencies with the report from Dr Richard Powell of 28 June 2023.
In commenting on a letter from Dr Petrelis of 10 October 2022 Dr Bodel said:[5]
“A letter from Dr Petrelis on 10 October 2022 indicates that he reinjured that shoulder on the stairs when he was “coming downstairs at home with socks on. He grabbed a handrail and pulled the shoulder and had instant pain”. He made no mention of the injury to the back.”
[5] ARD page 16.
Dr Bodel also said:[6]
“The local doctor’s medical record also indicates in an entry dated 18 December 2023 that he was reviewing him for his back pain. He recorded that he suffered a “back was also injured during the fall at work back in December 2022, falling downstairs in the original Workers’ Comp. Patient stated that it was well documented with his supervisor at the time”. That again appears to be a very different history to that given to me here today. You will recall that Dr Petrelis recorded that he was walking down the stairs at home wearing his socks when he fell injuring his shoulder but made no mention of injuring his back.
I find this all very confusing.”
[6] ARD page 16.
In discussing any potential consequential injury Dr Bodel said:[7]
“This gentleman has a back problem now and referred pain to the left leg, but no evidence of radiculopathy. This came on apparently as a consequence of the second event which was a slip and fall event on a set of stairs apparently at his home or possibly at his workplace, but I have no definite evidence from your patient that the injury occurred at the workplace.”
[7] ARD page 17.
In a further report of 14 August 2024 Dr Bodel confirmed his difficulties regarding his instructions about the back injury. Dr Bodel said:[8]
“…I will not be prepared to include a DRE Lumbar Category II rating, which is the rating for his back, at the moment without some legal clarification as to the circumstances of the back injury and its possible causal connection to the shoulder injury on 17 December 2020.”
[8] ARD page 20.
Dr Bodel noted further surgery to the right shoulder on 13 August 2023.
On 6 November 2024 Dr Bodel supplied a further opinion after he had been supplied with
Mr Gibbs’ statement of 17 October 2024, which confirmed relevantly that the consequential injury to the back occurred in the fall at home in July of 2022.
Dr Bodel said:[9]
“I am satisfied that there is a causal link between the episode of injury on the stairs at home and his original injury in the right shoulder for the reasons I have outlined in his statement."
[9]ARD page 23.

Dr Minas Petrelis, orthopaedic surgeon

Dr Petrelis was Mr Gibbs’ treating surgeon. A number of reports were lodged covering the period 2021 to October 2022. When he was first consulted on 6 September 2021, Dr Petrelis took a consistent history of the subject injury to Mr Gibbs’ shoulder. He also noted that
[10] ARD page 38.
Mr Gibbs had a previous back injury “and took a while to find work after 2014 but eventually found work again.”[10]
On 16 March 2022 Dr Petrelis operated on Mr Gibbs’ right shoulder. There were follow up consultations reported on. Relevantly, however, Dr Petrelis reported on 10 October 2022, saying:[11]
“Darren was seen in rooms today. Unfortunately he strained his shoulder when he came downstairs at home with socks on. He grabbed a handrail and pulled the shoulder and had instant pain.”
[11] ARD page 51.
Dr Petrelis thought that Mr Gibbs had exacerbated his shoulder condition.

Dr Richard Powell, orthopaedic surgeon

Dr Powell's report of 28 June 2023[12] recorded a history of the workplace injury to the right shoulder. As to the present dispute he stated:
“He suffered aggravation of his right shoulder injury several months later when he slipped whilst descending some stairs at home and grabbed hold of the railing with his right hand, briefly supporting all his weight.”
[12] ARD page 24.
Beyond recording the facts of the 2003 lower back injury Dr Powell did not take any further interest in the back condition.
In the second report dated 30 January 2025,[13] Dr Powell noted the claim made for compensation since Dr Bodel reported. Dr Powell noted a long history of previous injuries in the lower back, he said:[14]
“The condition never resolved and he continued to experience intermittent lower back pain. He confirmed that he aggravated his lower back in the fall on the stairs at home in the period between the two shoulder surgeries. He had presented to the Emergency Department at Manning Base Hospital and discussed both the injury to his right shoulder and lower back with his GP. He believes an MRI scan was performed which reportedly demonstrated evidence of degenerative pathology though this was not available for review.
The level of lower back symptoms subsequently returned to the pre-incident level
and Mr Gibbs confirmed today that he does not feel that the fall at home has contributed to any permanent increase in his level of symptoms or function involving the lumbar spine.”
[13] Reply page 1.
[14] Reply page 3.
As to whether the condition was consequential on the subject injury Dr Powell said:[15]
“Based on available information I do not believe that he sustained a consequential injury to his lumbar spine as a result of the right shoulder injury. The lumbar spine condition reflects a longstanding pre-existing disease process which was the subject of a previous successful worker’s compensation claim. His ongoing lower back symptoms are consistent with the natural history of the underlying degenerative disease process.”
[15] Reply page 7.

WorkFocus report

When Mr Gibbs was undergoing treatment from WorkFocus Australia on 5 December 2022, this history was taken:[16]
“On 31 October 2022 Mr Gibbs advised that he had reinjured his [shoulder] in a fall down the stairs and hurt his back in the fall.”
[16] ARD page 52.
In a further report from the same enterprise dated 9 February 2023 a similar history was recorded namely:[17]
“….[Mr Gibbs] advised he slipped down the stairs in October 2022 which resulted in an increase in his shoulder and low back pain.
….Mr Gibbs advised that approximately 4-5 months ago, he slipped down the stairs and landed on his tail bone, which has resulted in an increase in his lower back pain and hyper-extended his right shoulder."
[17] ARD pages 59, 60.

Clinical notes

Mr Gibbs consulted the medical practice of Healthhub Taree, where he had been a patient since June 2013.[18] The subject right shoulder injury was reported to Dr Long Phan Nguyen on 8 January 2021. Dr Nguyen was the practitioner Mr Gibbs consulted regularly about the shoulder injury until 29 March 2022, when Mr Gibbs was seen by Dr Matthew Tyrpenou. No consultation throughout that time referred to any back condition, and Mr Gibbs was two weeks post his right shoulder surgery when seen by Dr Tyrpenou. He attended Dr Nguyen thereafter until 25 May 2022, when he saw Dr Manuel Torres, whom he saw again on
1 June 2022 and 20 June 2022. He saw Dr Nguyen again on 12 July 2022. The following entry was noted by Dr Nguyen:^[19]
[18] ARD from page 90.
[19] ARD page 115.
“12/07/2022 Dr Long Phan Nguyen
Surgery consultation
Recorded by: Dr Long Phan Nguyen Visit date: 12/07/2022
Recorded on: 12/07/2022
Reason for visit:
Worker's Compensation paperwork
saw ENT
yesterday
can not even recline in his recliner
Subjective:
back and neck pain persisiting
pt NOT happy with Forklift, Handy person, Delivery driver
lawyers advised to take worklift course off certificate”
The next entry was on 21 July 2022:[20]
[20] ARD page 115.
“Surgery consultation
Recorded by: Dr Long Phan Nguyen Visit date: 21/07/2022
Recorded on: 21/07/2022
Reason for visit:
Mild, Chronic Right Shoulder pain
Worker's Compensation certificate
Subjective:
Musculo-skeletal:
Right shoulder pain.
pain no better
Abduction: 40 degrees
Adduction: 10 degrees
Forward flexion: 90 degrees
Extension: 20 degrees
Objective:
Musculo-skeletal:
Affected joint:
- Right shoulder Not swollen. Tender. No deformity. Movement restricted.
Assessment:
advised for MRI then see Dr Petrelis”
On 21 September 2022 Dr Tyrpenou noted:[21]
“…2. Case Conference with Jessica Donehue (Workfocus Australia) WC0002 x 10 mins
Discussed capacity
Darren unable to drive forklift due to back injury. Previously unable to renew forklift licence due to
back injury…”
[21] ARD page 118.
On 14 October 2022 the following entry appeared by Dr Nguyen:[22]
"Reason for visit:
Centrelink form”
[22] ARD page 119.
The results of an MRI of the right shoulder were entered and Dr Nguyen stated:
“Still needs Centrelink med cert for back ache since 2003.”
An entry of 17 February 2023 by Dr Nguyen listed the contents of a Physical Work Performance Summary – presumably from the insurer’s rehabilitation organisation – and noted “d/w pt,” which may be interpreted as “discussed with patient.”
Between the mention of the back on 12 July 2022 and 20 November 2023 no further mention of the back was made in 22 consultations with Dr Nguyen, besides the reference to the 2003 injury on 14 November 2022 and Dr Tyrpenou’s reference to Mr Gibbs’ previous inability to renew his forklift licence due to his back injury on 21 September 2022.
On 21 November 2023 Dr Nguyen noted a complaint of “bilateral back pain.”[23]
[23] ARD page 132.
On 18 December 2023 Dr Nguyen noted:
“Back also injured during the fall at work back in dec 2022 falling down stairs in the original W/C.
pt stated that it was well-documented with the supervisor at the time.”
On 18 December 2023 Dr Nguyen referred Mr Gibbs to Dr Brian Hsu for an opinion with the same history.[24]
[24] ARD page 85.
There was no further reference to the back in the clinical notes from Healthhub Taree until
Dr Nguyen’s entry of 19 April 2024:[25]
“Subjective:
pt had a fall at home last Sunday
tripped over whilst trying to gather clothes on the lines
went to gym last Friday, didi 30 mins of training
reinjured back and both knees…”
[25] ARD page 137.
The last entry in the clinical notes lodged by the applicant from HealthHub Taree was for
[26] Reply page 352.
29 April 2024. However, on 4 October 2024 Dr Simon Holliday from the practice, filed by the respondent, issued a medical certificate that stated that Mr Gibbs "has been diagnosed with a bad back."[26]
Mr Gibbs was referred for an MRI scan of his lumbar spine on 30 October 2024 and
Dr Holliday wrote for the clinical details: "Since he fell down the stairs gets sharp low back pain and then tenses up before his L leg gives way. He has to grab something or fall."
On 25 May 2022 a certificate was issued showing Mr Gibbs had a capacity for suitable employment from 25 May 2022 to 25 June 2022. That certificate also named only the right shoulder as being the injury.

CROSS EXAMINATION

In view of the apparent inconsistencies in the evidence, I indicated that I would be assisted by hearing evidence from Mr Gibbs. After some discussion, which is on the transcript,
Mr Stiles cross-examined Mr Gibbs. This will be considered in the discussion below.

SUBMISSIONS

Mr Adhikary submitted that Mr Gibbs on the cross-examination had presented as a plausible and consistent historian who confirmed the documentary evidence.
Mr Gibbs' evidence was that there was a discrepancy in the records, Mr Adhikary submitted. Whilst Dr Nguyen correctly recorded a complaint of back pain in his clinical notes of
12 July 2022, he had not recorded the full history, which included the fall at home. Mr Gibbs said he reported it to Dr Nguyen, and there was no reason to disbelieve him. Mr Gibbs had been tested in cross-examination and had given a plausible and consistent account,
Mr Adhikary said. It was accepted that the shoulder injury had been re-injured in the incident on the stairs, he argued, and the insurer could not accept that and then disbelieve that
Mr Gibbs had been walking down the steps holding the rail and slipped, thus injuring his back. The slip was a material contributing factor to the aggravation of the back injury,
Mr Adhikary submitted.
Mr Adhikary submitted that the discrepancy in record keeping was adequately explained in Mr Gibbs’ statement when Mr Gibbs referred to communication issues due to a language barrier with Dr Nguyen. There was objective support for Mr Gibbs’ assertion, it was argued, in that Dr Nguyen had erroneously noted on 18 December 2023 that Mr Gibbs had fallen in the subject injury in December 2022 and also injured his back, which had never been alleged.

Mr Adhikary referred to the history taken by Dr Bodel which, once he had access to
Mr Gibbs' statement, satisfied him that there had been an aggravation to Mr Gibbs' back condition in July 2022.
Mr Adhikary submitted that the Work Focus report also corroborated the account given by
Mr Gibbs. He also submitted that the reduction in capacity to three hours on three days per week contained within the certification was indicative that Mr Gibbs had suffered an exacerbation of his lower back condition.
Mr Adhikary submitted that the 19 April 2024 incident recorded by Dr Nguyen was irrelevant as the injury had already been sustained in July 2022.
Dr Powell’s first report recorded the history of Mr Gibbs’ fall up to a point and the description was indicative of the fall continuing and injuring Mr Gibbs’ back, Mr Adhikary submitted. In his second report Dr Powell acknowledged the full extent of the incident in the falling down the stairs. Dr Powell’s opinion that there was no consequential condition involving the low back could be rejected on the history he took, Mr Adhikary said.
Mr Adhikary submitted that the referral by Dr Holliday for an MRI of lumbar spine on
30 October 2024 was evidence of a difference in Mr Gibbs’ condition subsequent to the July 2022 incident.

Mr Stiles

Mr Stiles noted that Mr Gibbs had a long history of pre-injury back problems and that there had been no allegation of injury to the back in the subject shoulder injury on 17 December 2020, but there was now an allegation that a fall occurred in July 2022 as a consequence of the shoulder giving way.
Mr Stiles referred to the clinical notes made by Dr Nguyen on 12 July and 21 July 2022, and their corresponding certification. The entry on 12 July 2022 only referred to "ENT," he submitted, and there was no reference to a fall at home or any injury to the shoulder.
Similarly, the certificate that was issued on that day did not refer to the back. The entry for the 21 July 2022 only related to right shoulder pain and again did not mention any fall at home or any involvement of the lower back.
The referral to Dr Petrelis of 10 October 2022, which did refer to the incident relied on by
Mr Gibbs, did not mention either a fall or any injury to the back. The certificate of 24 August 2022 issued by Dr Nguyen, whilst reflecting a reduction in the amount of suitable duties
Mr Gibbs could do, again referred to a right shoulder injury only.
Similarly, certificates issued by Dr Tyrpenou dated 21 September 2022 again, although reducing the hours and days Mr Gibbs had capacity for, diagnosed only a right shoulder impingement and supraspinatus tendinopathy.
Mr Stiles also noted that when the Dr Nguyen did note the back condition, he spoke about
Mr Gibbs needing a Centrelink medical certificate for a backache which related to 2003.
Mr Stiles submitted that the history taken by Dr Nguyen on 18 December 2023 could be ignored as it was clearly not an accurate or consistent history.
Mr Stiles referred to the report to Dr Powell of 28 June 2023, which did not record any history of a fall or any back injury. Mr Stiles said that was consistent with Dr Petrelis' history, taken in October 2022, which confirmed that there was only the pre-existing lumbar spine condition which had not hitherto been mentioned at that point.
Mr Stiles then referred to the entry of 19 April 2024 and the history taken that there had been a further fall the previous Sunday, in which the entry noted a reinjury to the back and to the knees. This, Mr Stiles said, was the reason a general, and not a workers compensation, certificate was issued on the 4 October 2024 diagnosing a bad back because it related to the fall around 18 April 2024.
So far as Dr Bodel's report was concerned, Mr Stiles noted Dr Bodel's confusion and his simple acceptance of Mr Gibbs' statement as solving the confusion. However, Dr Bodel had no history of the incident at home that was recorded by Dr Nguyen on 18 April 2024.
Dr Bodel, although accepting the statement as clearing up his confusion, nonetheless made no diagnosis and simply certified that Mr Gibbs had a lumbar category DRE II entitlement. Thus, Mr Stiles argued, Dr Bodel did not have a complete history. There was no MRI scan in October 2024.
Mr Gibbs had the lower back condition for a long time and whilst criticism had been made of Dr Nguyen neither he, nor Dr Petrelis, nor Dr Torres, nor Dr Tyrpenou, nor for that matter
Dr Holliday, had taken any history of the incident that Mr Gibbs now relies on.
Whilst Dr Petrelis did record an incident, he did not record any complaint regarding a fall or of back symptoms.
In the final analysis Mr Stiles submitted Mr Gibbs had not satisfied his onus. If that was the case and there was an award for the respondent in relation for the claim for a consequential condition to the lower back, then Mr Stiles submitted that there should be an award for the respondent for the whole claim as the assessment for the right shoulder and scarring did not make the mandatory 10%.

Mr Adhikary in reply

Mr Adhikary said that even if it was found that Mr Gibbs had not made out his onus there was still a requirement to refer the matter to a Medical Assessor for an assessment of the injury to the shoulder and subsequent scarring and that it would be an error to find an award for the respondent overall.
The case of Etherton[27] was raised in discussion and Mr Adhikary accepted an invitation to make written submissions in that regard and which is reflected in the direction that subsequently issued.
[27] Etherton v ISS Property Services Pty Ltd [2019] NSWWCCPD 53 (Etherton).
The date of injury in July 2022, Mr Adhikary accepted, had not been more precisely identified and the references to the clinical notes of 12 July and 21 July 2022 were of limited assistance. However, Mr Adhikary submitted that nonetheless the incident had been accepted, as it was recorded in the Work Focus material, and it could accordingly be accepted that Dr Nguyen’s entry of 12 July 2022 was referring to it.

DISCUSSION

The issue for determination relates to the events on a date which has not been identified, apart from that it occurred in July 2022. Mr Gibbs injured his right shoulder on 17 December 2020 when he suffered a hyperflexion injury when pushing away a branch whilst operating a harvesting machine. There was no claim that Mr Gibbs had injured his back in that event.
Mr Gibbs maintains that on this unspecified date in July 2022 he suffered a fall at his home. In his statement of 17 October 2024, he gave a detailed account of this alleged event, reproduced above at [10]. He described that he lived in a two-storey home, and that he slipped as he was walking down a second flight of stairs. This caused him to shift his body weight onto his right shoulder, as he was grasping the rail with his right arm. His shoulder gave way under the weight and he threw his arm out, “consequently falling heavily onto my lower back and sliding down the remaining six to seven steps.”
Mr Gibbs said his lower back and his right shoulder were in severe pain and that it “ultimately” resulted in further injury to the right shoulder “and aggravated my lumbar spine.” He said that the fall “significantly worsened my back pain, particularly with pain radiating down my left leg.” Mr Gibbs said that he had not experienced such severe symptoms from his lumbar spine for 10 years or more.
Mr Gibbs had suffered an earlier work-related injury to his lumbar spine in 2003 when working for another employer. It had been managed conservatively and there had been a successful workers compensation claim in 2014.
Mr Gibbs was being treated by the practitioners at Healthhub Taree Medical Centre. The clinical notes lodged showed that Mr Gibbs had been treated mostly by Dr Long Phan Nguyen, but also from time to time by Dr Manuel Torres, Dr Matthew Tyrpenou, and latterly by Dr Simon Holliday.
He had first consulted that practice on 12 June 2013 regarding his 2003 back injury, for which the entry noted he had received compensation until 2009. The next entry was on
24 September 2019 by a nurse, presumably, on an unrelated matter. On 8 January 2021 the notes show that Mr Gibbs consulted Dr Nguyen about his right shoulder injury on
17 December 2020. He continued to consult Dr Nguyen exclusively until Dr Tyrpenou saw him on 29 March 2023 following his right shoulder surgery two weeks prior, and Dr Torres saw him on 25 May, 1 June and 20 June 2022. Dr Nguyen was the next to see him on
12 July 2022. The entries by Dr Tyrpenou and Dr Torres referred to follow up with
Dr Nguyen. It may be assumed therefore that Dr Nguyen had the management of Mr Gibbs’ medical issues.
Mr Gibbs has maintained that the slip and fall down the stairs occurred in July 2022, and the only visits to the HealthHub Taree centre GPs were recorded on 12 July and 21 July. It was submitted that the slip and fall had occurred prior to 12 July 2022, as the entry for that date referred to the back (as well as the neck).
In fact, the first reference to any fall at home occurred when Dr Petrelis recorded on
10 October 2022, as noted, that Mr Gibbs “strained his shoulder when he came downstairs at home with socks on. He grabbed a handrail and pulled the shoulder and had instant pain.”
In the WorkFocus report dated 5 December 2022 the fall down the stairs was recorded, with the added allegation that Mr Gibbs had reinjured his shoulder and hurt his back.
It was common ground that Dr Nguyen did not record any complaint that Mr Gibbs had sustained a fall at home, or that he injured his back in doing so.
It is well recognised that caution should be applied if the contents of the clinical notes of health professionals are to be relied on for any findings regarding causation. Reference is often made to Mason v Demasi[28] in that regard.
[28] [2009] NSWCA 227.
In Qannadian v Bartter Enterprises Pty Limited[29] DP Michael Snell said:
“35. Mason is from a line of appellate authority dealing with the use of clinical notes in the fact finding process. A number of these authorities are referred to in Winter v New South Wales Police Force [2010] NSWWCCPD 121 (which was reversed on appeal, on a different basis), where Roche DP at [183] said:
‘It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; King v Collins [2007] NSWCA 122 at [34]–[36]).’
37.The authorities (including Mason) do not preclude the use of such evidence in the fact finding process, nor do they provide that such evidence should not be relied on, in the absence of evidence from the author of the clinical notes. The authorities require the use of caution by a fact finder, including having regard to the circumstances in which such notes are brought into existence.”
[29] [2016] NSWWCCPD 50: See also Collins v Bunnings Group [2021] PIC 313 at 221.
Mr Gibbs has relied on this principle to explain why Dr Nguyen did not record either the history of the fall, or the allegation that Mr Gibbs had thereby reinjured his shoulder and aggravated his low back condition. His statement implied that indeed he did tell Dr Nguyen of this event, and, although submissions were made that an inference to that effect can be drawn from the 12 July 2022 entry, Mr Gibbs appeared to nominate 21 July 2022 as being the date when he advised Dr Nguyen, as Mr Gibbs stated that Dr Nguyen referred him for an MRI scan of the right shoulder, which entry only appears on 21 July 2022.
The insurer denied liability for the lumbar condition in its s 78 Notice of 9 January 2025. The insurer noted that the claim had first been detailed by Dr James Bodel in his report of
6 November 2024, and that it was seeking an opinion from its medical expert, Dr Richard Powell.
Dr Bodel’s evidence did not engender confidence as to his opinion. In his report of
18 August 2024, he noted inconsistencies in the histories he had obtained regarding the shoulder when he consulted both the Discharge Summary from the Manning Base Hospital on 18 December 2020, and an earlier opinion of Dr Powell.
With regard to the onset of the back symptoms, Dr Bodel noted that Dr Petrelis on
10 October 2022 had obtained a history that made no mention of the back in the incident when Mr Gibbs was “coming downstairs at home with socks on.” Dr Bodel also noted the entry of 18 December 2023 by Dr Nguyen that stated Mr Gibbs’ back was injured “during the fall at work back in dec 2022,” as noted above. Dr Bodel observed that Mr Gibbs had given what appeared to be a very different history, which included the assertion that he had developed increasing back pain and left leg pain in the fall at home. Dr Bodel went so far as to say that he “found this all very confusing,” and he refused to give an assessment in a separate report of the same date until he obtained some “legal clarification” as to the circumstances of the back injury and its “possible causal connection to the shoulder injury.”
As has been seen above, Dr Bodel issued a further report on 6 November 2024 in which, relevantly, he found there was a causal link between the injury on the stairs at home and the shoulder injury, having “carefully read [Mr Gibbs’] statement.” With respect to Dr Bodel,
Mr Gibbs statement, whether read carefully or not, did not resolve the inconsistencies regarding the onset of the back symptoms. Dr Bodel did not take a history of Mr Gibbs falling on his back. The history taken was that Mr Gibbs had “slipped on a set of stairs at home, grabbed the railing with his right arm, which caused a further hyperflexion injury, and on that occasion, he developed increasing back pain and left leg pain.” The failure by Dr Petrelis to mention the back was not resolved, and the confusion about Dr Nguyen’s entry on
13 November 2023 was not addressed.
Dr Bodel’s assumption was, as noted above, that Mr Gibbs tried to save himself in the slip and fall but his right arm was unable to support him, “causing the re-injury to the right shoulder and the re-aggravation of the back injury.” Dr Bodel’s opinion is thus dependent on whether his assumption has been established by the evidence.
Mr Gibbs confirmed the account he had given in his statement when he was cross-examined. He said that when he saw Dr Petrelis in October 2022 he remembered that he “told him exactly what happened and how I actually injured myself again.” When pressed, Mr Gibbs said that he remembered telling Dr Petrelis about his back symptoms. He said, “I even talked to him on my first surgery about my lower back injury because of having to actually have surgery laying on a gurney.”
It was suggested that Mr Gibbs saw Dr Nguyen in July 2022 around the time of the incident at home. Mr Gibbs said:
“Yeah. Yes. I actually told [Dr Nguyen] about that but he never actually gone documented anything on any paperwork.
Question: Did he refer you for any investigations or scans for your back?
Answer: Not at first. It wasn't for a while but I can but I actually did get a referral from the insurance company to go and see a specialist in Taree about my back and my shoulder. But that appointment got cancelled.”
It was suggested to Mr Gibbs that the Dr Nguyen's clinical records did not make any reference to his back or investigations for his back and Mr Gibbs said:
“Dr Nguyen's never really documented half of anything that I've actually told him about my injuries”.
He agreed that Dr Nguyen did not send him off for investigations and he said:
“I've told him about how I injured myself and he's never really documented anything that I've said. I've asked him if he could refer me to someone. I did get a referral to see a specialist in Taree but I can't exactly remember his name”.
When asked if that was from Dr Nguyen, Mr Gibbs said:
“It was all for the insurance company. Dr Nguyen had referred me to speak to… Well, actually, no, we didn't.”
On being questioned further, Mr Gibbs was asked:
Question Did you go and see Dr Nguyen about your back?
Answer Yes I let him know about it. Every time I went and got a new medical certificate, I had to renew medical certificate. I let him know I had a stumble at home and I injured my back. I've sort of hurt my shoulder again and he, Like I've said before, he... when I was going to see Dr Nguyen and he just stared at the computer basically printing out my medical certificate and wouldn't really write anything that I'd said down.
Question Well in this instance he's written down that you injured your back and your knees but he doesn't make any reference to your shoulder in April of 2024.
Answer That's with the conundrum I have with this doctor and that with Dr Nguyen and he rarely listened to and documented anything that I said... ...but I acknowledged I told him about it. I've told my new doctor about some of the things and same thing. It hasn't been documented.”
Mr Stiles asked some questions about Mr Gibbs' attendance on Dr Bodel. He asked whether Mr Gibbs had told Dr Bodel about the incident in April of 2024 and Mr Gibbs said:
“ Well I hadn't actually. Well I'd seen him way before that that incident.”
When it was put to Mr Gibbs that he had seen Dr Bodel on 12 June, two months after the fall in April of 2024 Mr Gibbs said:
“Yes I've mentioned that there's... I've mentioned everything every fall that I have every aggravation that I've had.”
When it was suggested that Dr Bodel had not made any reference to the April 2024 fall
Mr Gibbs said:
“Well Dr [Bodel] When I seen him he was referring like talking about stuff that happened back in 2003 with my original back injury... . In conversation actually I've mentioned it to him because I'd mentioned that I'd fallen down the stairs. I mentioned I couldn't carry clothes baskets. I'd get sharp pain when carrying the washing baskets so I did. I did tell Dr Nguyen about it and I did tell Dr Bodel about it but just for some reason it hasn't been mentioned in documentation. Because even with the first time I stayed Dr Bodel he stated that I actually done the injury at work and I never said that. I said I... And I said I'd done it at home. So I was either miscommunication or it's because that's what I've had a lot of miscommunication with a lot of the doctors. My GPs.”
That concluded the cross-examination and I asked him:
“You said that Dr Nguyen would just sit at the computer and write you a certificate. Do you remember saying that?
Answer: Yes.
Question: Did he examine you as well?
Answer: No. He every time I went to see him he never done any tests. Never tested a range of motion or anything like that. It wasn't until I actually seen it it was at the end before he actually left the practice was when he actually asked and done a physical range like a range motion test.”
I said:“What do you mean when he left the practice?
Wellyeah he actually left the practice and I started seeing Dr Holliday then. It wasn't until the end of when I was seeing Dr Nguyen that he actually started asking questions and doing like I said doing a range of motion tests and physical tests on me.”
Question: Are you saying Dr Nguyen never examined you?
Answer: Well he never done a physical examination on me. He just what I told him and he never ever done any type of physical.
Question:So you'd tell him what had happened and he'd write it down on the certificate?
Answer: Yeah well he wouldn't document half the stuff that I'd say. He wouldn't write down. Dr Holliday when I see him he writes everything I say down.”
Mr Gibbs was clearly trying to assist in the answers he gave, and it became apparent that he was convinced that the answers he gave were true. I did not gain the impression that
Mr Gibbs was deliberately attempting to mislead, but was endeavouring to give his answers as honestly and fully as he was able. Regrettably however Mr Gibbs’ recall of the above discussions and his factual assertions demonstrate that whilst a photograph might accurately represent circumstances at a given date in the past, human memory is fallible. Mr Gibbs has been involved in litigation for some years now and there is always the possibility that a person with an interest in the outcome of litigation might inadvertently reconstruct events and conversations, and that his honestly held belief represented what actually was said and what actually occurred. His answers however demonstrated the limitations that exist for people who are injured and attend their medical practitioners as a result. It would be fanciful to expect an injured worker in that situation to accurately remember everything that transpired with each medical practitioner on different dates, and it is in that regard that contemporaneous documentary independent evidence is usually more reliable.

Mr Adhikary made a number of submissions as to peripheral matters in support of Mr Gibbs case. He submitted that there was probative value in the fact that Mr Gibbs’ capacity was downgraded. On 20 June 2020 Mr Gibbs had been certified as fit for suitable duties [30] whereas on 21 July 2022 the suitable duties certification was stipulated as being limited to three hours per day for three days per week.[31] The inference Mr Adhikary sought to draw from the downgrade was that it was probable that the fall in July 2022 had aggravated
[30] Reply page 324.
[31] Reply page 399.
Mr Gibbs’ back condition which reduced his ability to do suitable duties. Both certificates however only mentioned the right shoulder and, without more, such a submission is speculative and without foundation.
The WorkFocus report of 5 December 2022 was the first occasion that a history was obtained that was consistent with Mr Gibbs’ account, and Mr Adhikary submitted that it was cogent corroborative evidence. The author, Mr Archer, recorded that he had been told on 22 October 2022 by Mr Gibbs that he had reinjured his shoulder in a fall down the stairs and hurt his back in the fall. This history was repeated by Mr Knapman from Work Focus in his report of 9 February 2023.
These histories were capable of supporting Mr Gibbs’ narrative, notwithstanding that they were made after a few months had elapsed. However, they in fact did no more than establish a date when Mr Gibbs first advanced his hypothesis. Work Focus was an organisation concerned with the rehabilitation of Mr Gibbs.
It is apparent from Mr Archer’s document that this rehabilitation did not commence until
6 October 2022, and that there had been two, if not three consultations (12 October,
13 October, and perhaps the initial meeting on 6 October) before this history was taken. No further details were recorded, and it seems that Mr Knapman assumed that the fall had occurred in October 2022 when he stated that the fall had occurred “4-5 months ago” on
9 February 2023. The entry by Mr Archer on 9 December 2022 was also ambiguous, as the entry stated that Mr Gibbs advised of the fall on 31 October 2022, which suggested that the fall had then been recent. These anomalies again would have not been significant had there been other contemporaneous record that confirmed the history, but they do not of themselves establish anything more than the earliest date that Mr Gibbs gave this version of events.
Mr Adhikary submitted that the history of the fall at home recorded by Dr Nguyen on
19 April 2024 was irrelevant, as it post-dated the July 2022 incident, but then submitted that Dr Holliday’s referral for a lumbar MRI on 30 October 2024 was indicative of a difference in Mr Gibbs’ condition since 2022. The history on the referral that the fall down the stairs had caused symptoms was corroboration, Mr Adhikary submitted, of the fall in July 2022. I am unable to attach weight to that submission, with respect. The referral on 30 October 2024 also post-dated the incident recorded by Dr Nguyen on 19 April 2024 of a flare-up of
Mr Gibbs’ back condition after a fall at home, and 30 minutes gym work. That incident was recorded by Dr Nguyen, who noted that Mr Gibbs’ back (and both knees) had been reinjured.
The difficulty that Mr Gibbs has been unable to overcome is that none of the practitioners at HealthHub Taree, nor Mr Gibbs’ treating surgeon Dr Petrelis, took any history of the involvement of the lumbar spine in the event of July 2022.
I am unable to accept the submission that the entry in the clinical notes of 12 July 2022 constitutes corroboration for Mr Gibbs’ account. Firstly, the content of the note did not support such an inference. The “reason for visit” was said to be “Workers Compensation paperwork” and although a complaint about persisting back and neck pain was recorded, it was in the context of Mr Gibbs also complaining that he was not happy with the selection of possible employment roles that had been suggested, probably by the rehabilitation suppliers, with the result that Mr Gibbs’ lawyers were “advised to take worklift [sic – forklift] off certificate.” The only workers compensation implication at that stage concerned Mr Gibbs’ right shoulder, which had undergone surgery on 16 March 2022. Mr Gibbs had no current claim for compensation for either his back or his neck at that stage.
Secondly, as noted above, Mr Gibbs himself nominated 21 July 2022 as the date on which Dr Nguyen (whom Mr Gibbs described as “Dr Phan” - Dr Nguyen’s middle name) failed to record the fall.
The caution that is required to be applied when considering the contents of clinical notes in the context of making causation findings relates to the circumstances in which the notes are made. A busy general practitioner cannot be expected to record everything that he/she is told, and it is possible that a significant factor in a patient’s presentation could be overlooked. Bearing that potentiality in mind however, the contents of the notes themselves in this case become significant.
Mr Gibbs, in his statement and in his evidence before the Commission, maintained that in effect he was the victim of sloppy recordkeeping by many of the practitioners, but significantly by Dr Nguyen. Mr Gibbs stated that Dr Nguyen did not understand him because of the language barrier and to Mr Stiles that Dr Nguyen did not document anything that
Mr Gibbs told him. Allowing for some hyperbole in that answer, it could be interpreted as saying that Dr Nguyen did not document everything that Mr Gibbs told him. Mr Gibbs portrayed Dr Nguyen as a person that “just stared at the computer basically printing out my medical certificate”. Mr Gibbs also said that Dr Nguyen never tested for range of motion and never did a physical examination.
These answers again demonstrate the fallibility of memory and the manner in which it can be reconstructed, particularly where a claimant has an interest in the outcome of litigation.
A perusal of the clinical notes kept by Dr Nguyen show that he regularly examined Mr Gibbs. Dr Nguyen divided his notes under three headings; “reason for visit,” “subjective,” under which complaints were noted, and “objective,” under which the results of examination were given. Further, it is difficult to accept that Dr Nguyen failed to record Mr Gibbs complaints about his back, when Dr Nguyen in fact noted the complaint about Mr Gibbs back and neck on 12 July 2022, and the fall at home on 19 April 2024 which “reinjured back and both knees.” Moreover, the contents of the clinical notes, such as they are, do not demonstrate any overt difficulty in the use of the English language.
In the final analysis, I am unpersuaded that Mr Gibbs has satisfied his onus, and the claim that Mr Gibbs has suffered a consequential loss to his lumbar spine resulting from the accepted injury to the right shoulder is dismissed.
In the event of such a finding, Mr Adhikary kindly made further written submissions. He argued that either the remaining claim should be remitted for referral to a Medical Assessor in accordance with Shankar v Ceva Logistics (Australia) Pty Ltd[32] and TransdevNSW South Pty Ltd v Twining,[33] or that the remaining claim for the right shoulder be found not to be a valid claim, pursuant to Voudouris v TDV Constructions Pty Ltd.[34]
[32] [2021] NSWPICPD 18.
[33] [2024] NSWPICPD 12.
[34] [2023] NSWPICPD 53.
Twining is not on point, as the consequential condition had been remitted for referral to a Medical Assessor, and the dispute concerned whether the consequential condition to the lumbar spine, for which there were assessments of 0% WPI, should be referred. Shankar concerned a similar factual situation, where there were assessments for the left upper extremity of 0% WPI, and Arbitrator Harris (as he then was) declined to remit the claim when there was no assessable impairment.
Voudouris concerned a case where the only evidence regarding an orofacial and lumbar spinal injury was from the worker, and were each assessed at 0% WPI. As there was no evidence from the respondent, no medical dispute existed, President Judge Phillips held. He also held that neither assessment could form part of a valid claim for benefits pursuant to s 39 of the 1987 Act, as they did not contribute to the WPI necessary to surmount the threshold.
In Etherton, I found at first instance that the claimant could not satisfy the threshold provided by s 66 of the 1987 Act and entered an award for the respondent. On appeal, President Judge Phillips considered the transitional provisions pertaining to the repeal of s 65(3) of the 1987 Act and held that I was acting withing power to determine the claim in this way.
The assessments for the remaining claim for injury to the right shoulder are 9% (Dr Bodel) and 5% (Dr Powell). As neither assessment can satisfy the s 66(1) threshold there will be an award in favour of the respondent for the claim.

[2025] NSWPIC 315

2 July 2025