Gray v Barry Bros Specialised Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Gray v Barry Bros Specialised Services Pty Ltd [2023] NSWPIC 364
APPLICANT:	Denis James Gray
RESPONDENT:	Barry Bros Specialised Services Pty Limited
Member:	Gaius Whiffin
DATE OF DECISION:	24 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for neck and back injuries; claim for compensation pursuant to section 66; parties reach agreement in relation to claim for further permanent impairment of the back; consideration of applicant’s statements, other statements and factual material, claim correspondence, as well as medical reports and other treatment records; consideration of whether the applicant sustained an injury to his neck arising out of or in the course of his employment with the respondent on 17 November 1997; and to which his employment with the respondent was a substantial contributing factor; consideration of the rule in Jones v Dunkel; consideration of the persuasion required for the applicant to overcome his burden of proof; consideration of the caution to be given when reviewing clinical records; Jones v Dunke, Manly Council v Byrne, State Bank of NSW v Brown, Drca v KAB Seating Systems Pty Ltd, Davis v Council of the City of Wagga Wagga, and Mason v Demasi considered; Held – the applicant did not sustain an injury to his neck arising out of or in the course of his employment with the respondent on 17 November 1997, and to which his employment was a substantial contributing factor; there will be an award in favour of the respondent with respect to the applicant’s claim pursuant to section 66 for any permanent impairment of the neck; in accordance with the parties’ agreement, there will however also be an award in favour of the applicant with respect to his claim pursuant to section 66 for further permanent impairment of the back; declaration pursuant to section 162(1) also made.
determinations made:	The Commission determines: 1. The applicant did not sustain an injury to his neck arising out of or in the course of his employment with the respondent on 17 November 1997, and to which his employment was a substantial contributing factor. The Commission orders: 1. I declare, pursuant to s 162(1) of the Workers Compensation Act 1987 (the 1987 Act), that Barry Bros Specialised Services Pty Limited entered into a contract with an insurer now known as AAI Limited t/as GIO in respect of its liabilities under the 1987 Act to the applicant, and that Barry Bros Specialised Services Pty Limited (being a corporation) has now ceased to exist. 2. In accordance with the agreement of the parties, there will be an award in favour of the applicant pursuant to s 66 of the 1987 Act in the amount of $2,100, representing 3.5% further permanent impairment of the back. 3. There will be an award in favour of the respondent with respect to the applicant’s claim pursuant to s 66 of the 1987 Act for any permanent impairment of the neck.

STATEMENT OF REASONS

BACKGROUND

Denis James Gray (the applicant) is 57 years old and was working for Barry Bros Specialised Services Pty Limited (the respondent) at the Orange Water Waste Treatment Plant on
17 November 1997 when he sustained an injury to his lower back. The respondent has never denied liability for that particular injury, and as a result, it has made various payments to or on behalf of the applicant over the years with respect to weekly benefits compensation and expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
The applicant also brought proceedings before the former Compensation Court of New South Wales, claiming his entitlements pursuant to s 66 of the 1987 Act in relation to the
17 November 1997 injury. Those proceedings were determined (following a contested hearing) by Neilson CCJ on 23 February 2000, and the applicant was awarded compensation pursuant to s 66 with respect to 31.5% permanent impairment of the back and 13.5% permanent loss of efficient use of the left leg at or above the knee.
The applicant made a further claim to the respondent pursuant to s 66 of the 1987 Act in relation to the 17 November 1997 injury, by a letter dated 28 January 2022. The claim alleged that the applicant now suffered from 35% permanent impairment of the back, as well as 15% permanent impairment of the neck.
In response to that claim, the respondent issued a notice dated 9 June 2022 denying liability for the claim under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), specifically disputing that the applicant had sustained a neck injury on 17 November 1997. The respondent had also previously issued dispute notices on
27 December 2018 and 11 November 2020 denying liability for any alleged neck injury on
17 November 1997.
By an Application to Resolve a Dispute (ARD) filed in the Personal Injury Commission (Commission), the applicant claims compensation pursuant to s 66 of the 1987 Act in accordance with the claim letter that had been sent on his behalf dated 28 January 2022.
The dispute was listed before the Commission for a preliminary conference on 23 May 2023. On that occasion, the respondent agreed that the applicant was entitled to compensation pursuant to s 66 of the 1987 Act with respect to 3.5% further permanent impairment of the back, but it maintained that the applicant did not sustain any neck injury on 17 November 1997. It consented to an award being eventually made in favour of the applicant for $2,100 pursuant to s 66 representing the 3.5% further permanent impairment of the back.

ISSUE FOR DETERMINATION

The parties therefore agree that the only issue in dispute is as follows:
(a) did the applicant sustain an injury to his neck arising out of or in the course of his employment with the respondent on 17 November 1997, and to which his employment with the respondent was a substantial contributing factor.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The dispute was listed for conciliation/arbitration before the Commission on 19 June 2023. On that occasion, Mr Jon Trainor of counsel appeared for the applicant, instructed by
Mr Messenger. The applicant was present. Mr Paul Barnes of counsel appeared for the respondent, instructed by Mr Leeds.
As the dispute was unable to be resolved, it proceeded to an arbitration hearing. The issue to be determined (see paragraph 7 above) was agreed upon, and the following additional matters were discussed:
(a) it was confirmed (in accordance with the direction that I made at the preliminary conference in the matter) that the respondent wished to exercise the leave that I had granted to it to cross-examine the applicant;
(b) it was confirmed (in accordance with the direction that I made at the preliminary conference in the matter) that the report of Dr Hale dated 11 April 2022 would be withdrawn from the respondent’s Reply (Reply) as the respondent would otherwise contravene cl 44 of the Workers Compensation Regulation 2016, and
(c) the applicant agreed to withdraw from the ARD the statement of Daina Reid dated 13 January 2021 after its admission was objected to by the respondent.
The applicant then sought a declaration pursuant to s 162(1) of the 1987 Act. It had provided evidence that Barry Bros Specialised Services Pty Limited was deregistered as a corporation on 9 September 2020 – see the company extract at page 4 of the applicant’s Application to Admit Late Documents dated 8 June 2023 (applicant’s AALD). Mr Barnes also conceded that Barry Bros Specialised Services Pty Limited had entered into a contract of insurance with the insurer now known as AAI Limited t/as GIO, which would cover the liabilities of the respondent to the applicant under the 1987 Act. I was therefore satisfied that I had enough evidence to make the declaration requested.
I make the declaration (see order 1 in the Certificate of Determination) and note that as a result of it, any award made by me in favour of the applicant would (in accordance with
s 162(2) of the 1987 Act) be deemed to be an award against an employer of the applicant’s with whom AAI Limited t/as GIO had entered into a contract, with respect to its liability under the 1987 Act to the applicant.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the ARD (save for pages 10-13, being the statement of Daina Reid dated
13 January 2021) and attached documents;
(b)    the Reply (save for pages 5-16, being the report of Dr Hale dated 11 April 2022) and attached documents;
(c)    the respondent’s Application to Admit Late Documents dated 5 June 2023 (respondent's AALD) and attached documents, and
(d)    the applicant’s AALD and attached documents.

Oral evidence

As noted, oral evidence was given by the applicant – it is discussed from paragraph 60 below.

Applicant’s evidence

The applicant relies upon four signed statements of his.
The first statement is dated 8 December 2003 (page 1 of the ARD). The limit of the applicant’s description as to how his injury on 17 November 1997 occurred is:
“On or about 17 November 1997 I had a job at Orange Water Waste Treatment Plant and whilst pulling on a hose I experience a sharp pain in my lower back.”
The statement then briefly describes the treatment that the applicant received for his lower back injuries, before concentrating upon his employment restrictions at the time of its signing. It appears that the respondent’s insurer was then suggesting that he was fit for certain types of employment and his statement explains why he would not be able to perform those types of employment. He refers to difficulties sitting or standing for long periods, lifting restrictions, bending restrictions, and difficulties climbing stairs.
No mention of any neck injury occurring on 17 November 1997, or any restrictions flowing from such an injury, are referred to in the statement.
The second statement (page 3 of the ARD) is undated, but was prepared on a date after October 2017 (which is the last date mentioned in it). The applicant now provides the following description as to how this injury on 17 November 1997 occurred:
“It was early hours in the morning and it was raining, when I lost my footing and fell back into a concrete pit, landing on my lower back and then with momentum landing on entire back.”
The applicant says that he immediately felt severe pain in his lower back and down his left leg. He describes his treatment for his back and left leg symptoms, which included surgery under Dr Sears on 17 December 1997. Following the surgery, he says:
“I went through my rehabilitation, but still had a large level of back pain and had started to experience neck pain and hand numbness. I mention the neck pain to my doctor, but he just suggested pain relief.”
He says that 18 months after his 17 November 1997 injury, his neck pain and numbness was getting worse, and following a CT scan, he was referred to Dr McDowell for “immediate surgery”.
The statement otherwise does not refer to any neck injury of the applicant’s.
The third statement is dated 12 September 2019 (page 6 of the ARD). In the statement, the applicant does not further describe how his injury on 17 November 1997 occurred, except for saying:
“When I fell, I hit my back and my head which would have led to the jarring of my neck. I had a hard hat on which saved my head. I recall not being able to get up after the fall and being dizzy.”
He says that “in the first few years following the injury” he had neck pain that had not been present before the injury occurred. He had physiotherapy treatment for both his neck and his back symptoms. He recalled reporting his neck pain to his treating doctors.
The statement also:
(a)    denies that he had any fall in which he injured his neck and shoulders after 1997;
(b)    specifically denies that he fell down stairs while he was living in a mobile home (as recorded by his general practitioner, Dr Sahukar) in July 2001 - he claims that he was living in a granny flat at the time which had no stairs leading to it or stairs within it, and he produces a photograph of the entrance to the granny flat;
(c)    speculates that Dr Sahukar obtained an incorrect history from him possibly because the doctor confused him with another patient - he mentions that the doctor was “an older doctor…nearing the end of his career”;
(d)    speculates that Dr McDowell’s history was incorrect possibly “based on
Dr Sahukar’s notes”, and
(e)    advises that he does not remember preparing his initial claim form following his 17 November 1997 injury nor signing his statement dated 8 December 2003 – he claims that only his lower back was mentioned in those documents as it “had the most pain at the time”.
The fourth statement is dated 7 June 2023 (page 1 of the applicant’s AALD). The applicant now describes in some detail how his 17 November 1997 injury occurred. He says that he had his back to an open concrete pit approximately 3-4 m deep. He was manoeuvring a water pressure hose in order to unblock a sewerage pipe. The water pressure suddenly decreased as he was manually pulling back on the hose, causing him to fall backwards and into a concrete pit. He says that he landed heavily onto his lower back, with the back of his head hitting “hard on the concrete”. He says that he was dazed and disorientated, and that he immediately experienced back pain and “severe” headaches. He does not specifically mention neck pain.
The ARD contains the following contemporaneous documents:
(a)    Worker’s Claim for Compensation (page 14) - signed by the applicant on
24 November 1997;
(b)    Employee’s Report of Injury (page 16) - signed by the applicant on
24 November 1997, and
(c)    Employer’s Report of Injury (page 18) - only first page (unsigned) provided.
None of these documents refer to the applicant sustaining a neck injury on 17 November 1997 - they all solely refer to a lower back injury.
They all also refer to the mechanism of the injury as the applicant pulling on a water hose in order to release a pipe blockage. No mention is made of any fall backwards.
The ARD also contains a statement from Shellie Gray (the applicant’s wife who has resided continuously with the applicant since the 17 November 1997 injury) dated 12 September 2019 (at page 9). In the statement, the applicant’s wife:
(a)    advises that she does not recall the applicant having a fall after 1997 in which he injured his shoulder or neck;
(b)    confirms that the granny flat in which they were residing in July 2001 did not have any stairs;
(c)    advises that the neck surgery performed upon the applicant by Dr McDowell in 2001 “was reported as a workers compensation expense necessary as a result of his 1997 injury”, and
(d)    advises that the surgery was eventually covered by the applicant’s private health insurance because she had difficulties liaising with his workers compensation insurer at the time and because the surgery was urgent.
To confuse matters further regarding the applicant’s living arrangements in 2001, the ARD contains a status report from CRS Australia dated 3 May 2001 (at page 51), which records the applicant as living in a caravan, rather than a mobile home or granny flat.
Unfortunately, perhaps due to the passage of time, the applicant has found it difficult to now obtain contemporaneous medical evidence regarding the 17 November 1997 injury. Nevertheless, the ARD does contain some contemporaneous medical evidence.
There is a referral report from the applicant’s treating general practitioner (Dr Sahukar) to
Dr Sears (at page 56 of the ARD). The referral is undated but refers to an examination of the applicant by the doctor on 18 January 1999.
The report is slightly hard to follow. It refers to the applicant “complaining of a lot of pain in his lower back with pain referred down the left leg”, following an episode a week earlier. It provides details as to the doctor’s examination findings in relation to the applicant’s lower back and legs on 18 January 1999. It then however refers to CT findings “of a central disc prolapse at the level of C2/C3 with some evidence of prolapse at the level of C3/4 C4/5”. The next paragraph in the report then reverts back to discussing the applicant’s back symptoms and the doctor’s advice that “the symptoms in his back will definitely improve it is just one of these incidents where he has aggravated the symptoms as a result of bending down”.
There are some clinical notes (at pages 41-45 of the ARD) which identify the applicant, but not the doctor. They cover the period from 28 June 2001 to 15 May 2002. They are said to be from Dr Sahukar. I accept this to be the case, as the notes correlate with a report prepared by the doctor dated 7 August 2021, as well as with radiological referrals made by the doctor.
Unfortunately, the notes cover a very short period of time, some years after the 17 November 1997 injury. The notes are also rather difficult to read, but it is clear that they refer to the applicant falling down two steps on 12 July 2001 and landing on his left shoulder.
Dr Sahukar’s 7 August 2021 report is then found at page 52 of the ARD. It is addressed to
Dr McDowell.
The report refers to the applicant injuring his back in 1997 while he was working. It does not refer to the applicant injuring his neck at that time. Instead, the doctor explains the applicant’s neck symptoms as follows:
“Mr Gray had his house bumt down and is living in a mobile home. As he was getting down the steps he slipped, and as he slipped he fell heavily on his left shoulder with the left shoulder in extension and abduction. He also jarred his neck, this incident occurred on 12 July 2001. His main symptoms were initially in his shoulder, but clinically he had fairly good range of movement in his shoulder and the pain was more a referred pain coming from his neck. After a few days the symptoms in his neck were getting worse. The movements of the neck were limited and uncomfortable and he was also having referred pain in his fingers, mostly paresthesia. No definite weakness in the left upper limb.”
Dr Sahukar ordered an MRI scan and the report from that scan is found at page 46 of the ARD. The report notes the clinical history as:
“Fall with left shoulder pain initially now left brachalgia.”
The scan found a large left-sided disc herniation at C6/7 compressing the left C7 nerve root. In relation to the other cervical levels, it is relevant to note the following findings:
“Appearances at the C2/3, C3/4, C4/5 and C5/6 disc levels are within normal limits. There is no evidence of significant disc protrusion here or spinal or foraminal stenosis.”
There is also a report from Dr McDowell dated 17 August 2001 (at page 48 of the ARD). The report recommends that the applicant undergo surgery to decompress his left C7 root, which was to take place on 17 August 2001. The history that the doctor obtained was that the applicant accidentally fell on 2 July 2001 with an impact to his left shoulder joint, which led to radiating pain down his left arm. Radiological studies then found pathology at C6/7 and a significantly compressed C7 nerve root. Significantly, the doctor begins his report by stating that he “will not reiterate his low back/workers compensation history”. It can be assumed that the doctor did not believe the symptoms that he was treating the applicant for were related to that workers compensation history (that is, the injury on 17 November 1997).

There is then a report from Dr Beran dated 30 June 1998 (at page 58 of the ARD). The doctor had been qualified by the applicant’s then solicitors. The history that the doctor obtained from the applicant regarding the 17 November 1997 injury was as follows:
“Mr Gray stated that he was pulling on a high pressure water/jetting hose
(estimated to produce 2,000 p.s.i. pressure with a volume of water pumping
capacity of 265 litres per minute). He was working at the Orange Waste
Water Treatment Plant at the time…Mr Gray reported that he was twisting his back as part of the procedure to get extra pressure to manoeuvre the hose and had the sudden onset of burning pain in the middle of his lower back. The pain radiated down his left leg and down to his foot.”
The doctor does not take any history of any neck symptoms experienced following the
17 November 1997 injury. However, the doctor’s physical examination of the applicant included a neck examination, as well as an examination of his back and legs. In relation to that neck examination, the doctor states:
“Neck examination revealed that he had a full range of active movement, though it was clear that he was in discomfort with lateral flexion to the left.”
The doctor then examines various radiology covering the period between 28 November 1997 and 28 May 1998. It is relevant to note that disc protrusions were found at L3/4, L4/5, and L5/S1.
The doctor finally provides opinions in relation to the applicant’s back symptoms. He does not provide any opinion regarding causation of the neck discomfort that he found the applicant suffered.
There is next a report from Dr Allan dated 15 June 2007 (at page 54 of the ARD). The report notes the applicant’s history of back surgery in 1997 and neck surgery in 2001, and states that “this was all secondary to a work injury”. However, the report then discusses the applicant’s back and leg symptoms at the time without any mention of any neck symptoms. It does not appear that the doctor examined the applicant’s neck or reviewed any radiology regarding the neck.
The applicant otherwise relies upon recent reports obtained from Dr Anderson. The doctor has provided four reports.
The first report is dated 22 February 2018 and found at page 76 of the ARD. The doctor commences his report as follows:
“Mr Gray is 51 years old. He gives a history of a severe event which occurred in mid
November 1997. There is almost no associated documentation about this particular event or his circumstances around it. There is evidence, however, that he injured his lower back. All of his subsequent clinical management seems to have been focused towards this, although at this assessment it came about very obviously (with a little more 'digging') that he had hurt his neck quite badly as well. This seems to have been overshadowed largely by the condition of his back. I would suggest, however, that the neck condition should also be fully addressed with his back condition.”
The doctor continues (without obtaining a history of any fall in 2001):
“There is a history of his neck deteriorating in 2001 followed by surgery by Dr
McDowell at Royal Prince Alfred Hospital which gave him a good result. Bearing in mind that this was only 4 years or so after this event where he also hurt his neck, it stands to reason that there is likely to be a substantial association. In discussing this with Mr Gray, this has not been included with his claim. I would suggest that in all fairness it should at least be investigated to see if it is appropriate to do so. With the evidence that I had at this assessment, I would suggest that it may well be.”
The history of the applicant’s 17 November 1997 injury is then recorded by the doctor. The applicant was pulling a hose, lost his balance, stumbled backwards, and fell into a pit, landing on his back. The “landing at the bottom of the pit through his head back hurting his neck”. The doctor later in the report also notes the applicant’s head “came down hard on the ground of the pit where he fell into”.
The doctor then discusses the applicant’s treatment for his back complaints, without detailing any further treatment for neck complaints. On examination of the applicant’s neck, the doctor finds a mild ache without tenderness, and he finds movement of the head and neck to be “just about normal”.
The doctor opines that the applicant’s neck condition is directly due to the 17 November 1997 injury “unless demonstrated otherwise with material which was not available at this assessment”.
The doctor then assesses the applicant’s impairment, capacity for work, and need for medical treatment.
The doctor’s second report is dated 4 December 2019 and found at page 83 of the ARD. The report is a supplementary report (without an examination of the applicant), after the doctor reviews the applicant’s 12 September 2019 statement, as well as records suggesting that the applicant injured his neck in a 2001 fall. The doctor notes:
“We are therefore faced with two fairly diametrically opposed views concerning Mr
Gray's neck. On the one hand, there is the possibility of injury to his neck following the event of November 1997 which gradually deteriorated (which could happen), resulting in the neurological features radiating down his left arm and ultimately necessitating the laminectomy conducted by Dr David McDowell in 2001…In the other view, there is a history which is described as being inaccurate that there was a fall in 2001 and that this has resulted in the need for the surgery to his cervical spine. From my perspective, I have absolutely no idea at all which of these is accurate.”
The doctor requests that further contemporaneous medical records be unearthed, advising that “we cannot proceed further forward” until “it is unequivocally demonstrated as to when and how Mr Gray injured his neck”.
The doctor’s third report is dated 12 August 2020 and found at page 86 of the ARD. The report is a further supplementary report, without an examination of the applicant. The doctor notes that he has been advised that no further clinical documentation in relation to the applicant’s neck treatment has been found.
The doctor addresses a question posed to him by the applicant’s solicitors in which he is asked to assume that the applicant did not have a fall in 2001 or any other event impacting upon his neck other than the 17 November 1997 injury. He opines:
“Under these circumstances with this assumption, there is no other history of dysfunction of his cervical spine and therefore, it would stand to reason that the very traumatic event in November 1997 would be the most likely reason for the need for the surgery by Dr David McDowell in 2001”.
The doctor’s final report is dated 18 January 2022 and found at page 88 of the ARD. This report however largely assesses the level of the applicant’s impairment, without providing more assistance to me regarding the causation of the applicant’s neck condition.
Finally, the ARD contains various certificates of capacity (pages 91-111). These cover the period from 11 May 2017 to 30 August 2018. The certificates are all issued by the applicant’s current general practitioner, Dr Kamalasada. It is worth noting that the certificates prior to
1 March 2018 only mention a back condition, but from that date also refer to a neck condition. There is no explanation in the certificates, or indeed any other evidence from the doctor, explaining this change.
The applicant gave oral evidence at the arbitration hearing. He initially identified his four signed statements (discussed at paragraphs 15-26 above), advised that he was aware of their contents, and confirmed that the contents were “true and correct”.
Under cross-examination, the applicant was taken through the following evidence:
(a)    his first statement signed on 8 December 2003 (see paragraphs 16-18 above) - he confirms there is no reference to a neck injury in that statement;
(b)    his second signed but undated statement (see paragraphs 19-22 above) - he confirms that there is no reference in that statement to him striking his head in his 17 November 1997 accident;
(c)    his third statement signed on 12 September 2019 (see paragraphs 23-25 above) - he confirms that he has “no recall” of any injury in mid 2001;
(d)    the Worker’s Claim for Compensation (see paragraph 27(a) above) - he confirms that he authored the form and that there is no reference to a neck injury upon the form;
(e)    the Employee’s Report of Injury (see paragraph 27(b) above) - he advises that his wife completed the form and he signed it – he confirms that there is no reference to a neck injury upon the form;
(f)    the clinical notes that I have found were made by Dr Sahukar (see paragraphs 35-36 above) - he advises that he did not sustain a fall on 12 July 2001 (or indeed on any occasion after 17 November 1997) - he is not sure where the information in the clinical notes regarding such a fall came from;
(g)    Dr McDowell’s report dated 17 August 2021 (see paragraph 41 above) - he denies informing Dr McDowell of a fall in July 2001 but concedes that Dr McDowell’s report does not refer to any history of neck symptoms prior to July 2001;
(h)    the CRS Australia status report dated 3 May 2001 (see paragraph 31 above) - he advises that the information in the report regarding him staying in a caravan was incorrect;
(i)    Dr Sahukar’s 7 August 2001 report (see paragraphs 37-38 above) - he denies that he advised the doctor of a fall on 12 July 2001 following part of the quotation at paragraph 38 above being read to him;
(j)    Dr Beran’s 30 June 1998 report (see paragraphs 42-45 above) - he is read part of the quotation at paragraph 42 above and confirms that the history taken by the doctor is incorrect as it fails to mention that he fell on 17 November 1997;
(k)    the certificates of capacity dated 29 August 2017 and 7 December 2017 (see paragraph 59 above) - he concedes that these certificates have no reference to a neck injury;
(l)    his fourth statement signed on 7 June 2023 (see paragraph 26 above) - he confirms that the mechanism of his injury on 17 November 1997 is “exactly” described in this statement;
(m)     Dr Bosanquet’s 2 March 2017 report (see paragraphs 71-72 below) - he confirms that there is no reference to any complaints of neck pain in that report;
(n)    Dr Bosanquet’s 21 November 2018 report (see paragraphs 73-77 above) - when it is put to him that he provided the doctor with a new history regarding his
17 November 1997 accident in this report, he advises that he had previously informed the doctor of that history “but he did not put it all down”, and
(o)    Dr Pierides’ 4 June 1998 report (see paragraphs 68-69 below) - he confirms that there is no mention of any head or neck injury on 17 November 1997 in the report, or indeed that a fall onto concrete occurred on that date - he advises that he “cannot recall the visit but would have told him”.
Under cross-examination, the applicant also maintained that he told Dr Sahukar around the time of his accident on 17 November 1997 that he had injured his neck on that date.
Upon being asked by myself why he believed that he had been referred to Dr McDowell on 15 August 2001, the applicant advised that he had seen the doctor before about his neck, but that it deteriorated since 1997 and it got to the stage when he needed to “do something about it”.
Having heard the applicant’s oral evidence, I do not find that it assists me to resolve the inconsistencies in the evidence regarding whether he injured his neck on 17 November 1997, regarding the mechanism of how he was injured on that date, and regarding whether he injured his neck in a fall in July 2001.
On many occasions during the oral evidence, the applicant advised that he could not remember or could not recall certain propositions put to him. This is understandable given the passage of time since 17 November 1997, but it makes it difficult for me to then accept how he can be so exact with the history given in his fourth statement, which was signed on
7 June 2023.
Having witnessed the demeanour of the applicant while giving oral evidence, I do not believe that his mostly blunt answers have assisted me in explaining why the vast majority of the contemporaneous medical evidence does not mention either a neck injury on 17 November 1997, or indeed a fall on that date. I do not find the applicant’s oral evidence to be reliable.

Respondent’s evidence

The respondent relies upon the transcript of the judgment of Neilson CCJ (at page 5 of the respondent’s AALD) in the applicant’s initial proceedings before the former Compensation Court. The judgment was handed down on 23 February 2000. The judgment reveals that there was no claim made in those initial proceedings for any neck injury that occurred on
17 November 1997, and there is no mention in the judgment of any such injury occurring. The mechanism of the injury that occurred on that date is not described by the judge, presumably because it was not an issue in the proceedings.
The respondent relies upon a report from Dr Pierides dated 4 June 1998 (at page 1 of the respondent’s AALD), which followed a medico-legal examination of the applicant on behalf the respondent’s then insurer. The history taken by the doctor of the 17 November 1997 injury is as follows:
“On the day in question he was using a high pressure hose cleaning out pipes. As he pulled back on the hose to help loosen part of the blockage he got a severe pain in his low back and into his left leg. He felt an immediate burning pain in his left leg and cramping”.
The report contains no history of the applicant injuring his neck on 17 November 1997, nor does it contain any reference to neck symptoms or neck investigations.
The respondent otherwise relies upon reports prepared by Dr Bosanquet.
The doctor’s first report dated 2 March 2017 is found at page 17 of the Reply. There is again no history in the report of the applicant injuring his neck on 17 November 1997. The doctor describes the mechanism of the injury that occurred on that date as follows:
“He was using a pressure hose, the force pushed him backwards and he landed onto concrete”.
The doctor does not physically examine the applicant’s neck, discuss any neck radiology, or assess any neck impairment.
The doctor’s second report dated 21 November 2018 is found at page 22 of the Reply. The doctor now obtains a slightly more detailed history of the 17 November 1997 injury, as follows:
“Denis Gray injured his neck and back on 17/11/1997 when working with Barry Brothers. He was in Orange of the time using a high-pressure water hose 50 mm in diameter. He did not realise that the pressure was on in the hose which was blocked and when he pulled the hose the pressure through him back, causing him to fall off a tank about four metres and landing onto concrete onto his back. He was wearing a hard hat and hit his head at the time”.
The doctor notes the neck surgery that the applicant underwent with Dr McDowell but does not take a history of any fall in July 2001.
The doctor examines the applicant’s cervical spine and notes pain, weakness, and numbness. There were restrictions with flexion, rotation, and lateral bending, although extension was full. There were also some shoulder movement restrictions.
The doctor opines in summary:
“This 52-year-old man, currently employed as a teacher’s aide for special needs children, has sustained an injury at work with Barry Brothers on 17/11/1997. This has resulted in disc lesions in his lumbar spine specifically at L3/4, L4/5 and L5/S1 for which he has had three operations. He has also injured his neck resulting in a cervical laminectomy. He has osteoarthritis in both knees”.
The doctor then opines that the applicant’s employment with the respondent was not a substantial contracting factor to his neck symptoms, as “there was no history of him injuring his neck at the time of the accident” and as his “neck problem is one that has arisen from constitutional factors”. These conclusions seem inconsistent with the earlier quotations from the report (see paragraphs 73 and 76 above).
The doctor attempts to resolve these inconsistencies in his third report, a supplementary report dated 15 January 2019, which is found at page 30 of the Reply. He confirms that it is his opinion that the applicant did not injure his neck on 17 November 1997, and he advises that the quotations referred to at paragraphs 73 and 76 above should be amended to reflect this opinion, and to not draw any connection between the applicant’s neck symptoms and his 17 November 1997 accident.
The doctor’s final report dated 21 October 2020 is found at page 33 of the Reply. In order to prepare this report, the doctor is sent a large number of medical reports, most of which are unfortunately not before me. The doctor again confirms the lack of contemporaneous medical evidence regarding neck symptoms commencing from date of the applicant’s accident on
17 November 1997. He summarises:
“Although Denis Gray relates his neck symptoms to the initial injury on 17/11/1997, there is no mention made of his neck injury from the various orthopaedic reports including Dr William Sears (15/12/97), Dr Lou Pierides (4/6/98), Dr A Shahuka (18/6/98), Dr Roy Beran (30/6/98), Dr William Wolfenden Neurologist (29/9/98), Dr Kalev Wilding (10/12/99), Dr Hodgkinson (26/06/2001). Dr David McDowell who operated on him puts it down to a ‘fall in 2001’ which Mr Gray denies. Dr Chris Katsogiannis, rehabilitation physician in his report of 16/07/2002 states ‘There is no indication in his paperwork to suggest that the injury to his cervical spine was related to his work’. The first mention of the cervical spine being injured in the work injury was Dr David Bowers on 24/09/2002 when he states there was an injury to his lumbar spine and neck. Dr Leon Le Leu in his report of 27/02/2008 states there was an injury to his back only and states ‘He added, as an afterthought, that he also developed neck pain with pain and weakness in his left arm which he attributed to the accident’. Dr John Stephen orthopaedic surgeon 09/10/2014 states ‘There have been unrelated issues and he had a cervical laminectomy in 2001’.”
The doctor therefore confirms his opinion that the applicant did not sustain an injury to his back on 17 November 1997.
Finally, the doctor disagrees with the opinion expressed by Dr Anderson (see paragraph 57 above), opining that the applicant only linked his neck pain with the 17 November 1997 injury “in retrospect”. There were no contemporaneous medical reports of neck symptoms and it was therefore not reasonable to suggest that the symptoms requiring surgery with
Dr McDowell in 2001 were due to the 17 November 1997 injury. “People can develop neck symptoms without any specific injury due to degeneration (constitutional) in their cervical spine”.

Applicant’s submissions

The applicant’s submissions have been recorded and I will not summarise them in detail.
The applicant submitted that after considering all the evidence, the Commission would be satisfied that it is more probable than not that he injured his neck in the accident on 17 November 1997. The applicant asked his oral evidence to be accepted as honest and accurate. It was submitted that he was solid in his oral evidence, and he came across as someone who was trying to assist the Commission in giving evidence as best as he could recall.
The applicant submitted that “there was not a lot I can say” about the contradictory evidence (being the evidence of the applicant as opposed to the evidence in the medical reports from Dr Sahukar, Dr McDowell and the radiologist who performed the MRI scan, referred to at paragraph 39 above) as to whether the applicant was injured in a fall in July 2001 except that “telling the truth counts for something” (in relation to the applicant’s evidence). The applicant also submitted however that even if the Commission accepted there was an injury to the neck in July 2001, such a finding would not preclude a finding that the neck was also injured in the accident on 17 November 1997.

The applicant then referred the Commission to Dr Beran’s report (see paragraph 43 above) which recorded neck symptoms, as well as Dr Sahukar’s undated report (see paragraphs 33-34 above) which discussed the findings from cervical spine radiology. For there to be neck symptoms of such severity at the time of Dr Sahukar’s report (which was following an examination on 18 January 1999) for CT radiology to be ordered, the applicant submitted that there was no other answer but to find that the applicant did injure his neck in the accident on 17 November 1997.
When questioned by the Commission as to there being no remarks in either Dr Beran’s report or Dr Sahukar’s report specifically linking the causation of any neck symptoms to the accident on 17 November 1997, and as to the comments regarding the cervical spine radiology in Dr Sahukar’s report being out of context with the back symptoms otherwise referred to in the report, the applicant submitted that an inference could be drawn that
Dr Sahukar believed the neck symptoms to be a result of the accident considering the addressee of the report, being Dr Sears who had only treated the applicant in the past for the effects of the accident.
The applicant submitted that no inferences could be drawn by the Commission from the judgment of Neilson CCJ in the applicant’s initial proceedings before the former Compensation Court. There was no claim before that Court articulated in relation to any neck injury, and it is therefore not surprising that there is no mention of any neck injury in the judgment.
However, the comments made by Neilson CCJ in the judgment that the applicant “presented in a stoical fashion, as a man who did not wish to whinge” (see paragraph 21 of the judgment at page 9 of the Reply) were then relied upon by the applicant in support of his submission that the absence of neck complaints to treating doctors following the 17 November 1997 accident was explicable, in the context of the significant and “overarching” back injury that he then sustained. The concentration of his complaints in this regard to those doctors was wholly reasonable. His neck injury was “peripheral”.
The applicant was then questioned by the Commission regarding the descriptions of injury on 17 November 1997 referred to in the Worker’s Claim for Compensation and the Employee’s Report of Injury (see paragraph 27 above). The applicant conceded that it would be “very difficult” to succeed if those descriptions (which do not refer to a fall backwards hitting the head, but instead refer to pulling a water hose) were accepted.

Respondent’s submissions

The respondent’s submissions have been recorded and I will not summarise them in detail.
The respondent took the Commission through the evidence and submitted that there was not sufficient evidence for a finding to be made that the applicant suffered a neck injury on
17 November 1997. There was no reference to such an injury in the applicant’s statement evidence or claim documentation until the statement which he signed on a date after October 2017 (see paragraph 19 above). There was also no reference to such an injury in the contemporaneous medical evidence or in the judgment of Neilson CCJ in the applicant’s initial proceedings before the former Compensation Court.
It cannot be accepted that if the applicant sustained the type of neck injury on 17 November 1997 referred to in his fourth statement (see paragraph 26 above) that he would not have made complaints about it at the time.
The respondent submitted that the applicant’s wife’s statement (see paragraph 30 above) was also curiously silent in relation to the applicant complaining about neck symptoms following his 17 November 1997 accident.
The respondent submitted that it was Dr Anderson’s examinations of the applicant that were the “catalyst” for the applicant claiming that he injured his neck on 17 November 1997. However, when Dr Anderson requested further contemporaneous documentation, he was not provided with the Worker’s Claim for Compensation or the Employee’s Report of Injury.
The respondent also submitted that the reference to cervical spine radiology in Dr Sahukar’s undated report (see paragraphs 33-34 above) must, in the context of the report and in the absence of the radiology being in evidence, logically be an error in that it should be a reference to lumbar spine radiology. It is “implausible in the extreme” to suggest that the reference in the report “gives an opening” to the applicant’s claim that he injured his neck on 17 November 1997.

Applicant’s submissions in reply

These submissions have also been recorded and I will not summarise them in detail.
The applicant submitted:
(a)    the proposition put by the respondent that the reference to cervical spine radiology in Dr Sahukar’s undated report (see paragraphs 33-34 above) should be considered to be a reference to lumbar spine pathology is not sustainable, as there is no reason to accept that the doctor could have made such an “egregious” error – further, the pathology referred to in the report is at specific disc levels (C2/3, C3/4, and C4/5) that do not correlate numbering wise with the levels where the applicant experienced lumbar spine pathology (L3/4, 4/5, and L5/S1 – see paragraph 44 above);
(b)    the respondent’s criticism of the applicant’s wife’s statement was misguided as the purpose of the statement was to deal with the allegation that the applicant injured his neck in July 2001, and
(c)    it would be open for the Commission to find both that the applicant injured his neck in July 2001 and on 17 November 1997.

FINDINGS AND REASONS

Did the applicant sustain an injury to his neck arising out of or in the course of his employment with the respondent on 17 November 1997, and to which his employment with the respondent was a substantial contributing factor

There are inconsistencies in the evidence before me, and unfortunately a paucity of documentation contemporaneous to the applicant’s accident on 17 November 1997. Due to the passage of time since that date, it is understandable that memories have faded and documentation has been destroyed or lost.
However, it does seem from Dr Bosanquet’s 21 October 2020 report (see paragraph 79 above) that there is some contemporaneous medical evidence available to at least the respondent that is not in evidence before me. Dr Bosanquet suggests that that evidence supports his opinions, but I cannot make any inferences in this regard without viewing the evidence. Instead, pursuant to the rule in Jones v Dunkel [1959] HCA 8 (Jones v Dunkel), I am required in my opinion to draw an inference that the untendered evidence would not have helped the respondent. It is important in this regard however to understand that the rule in Jones v Dunkel merely permits this inference, and entitles me to more readily draw other inferences available to be drawn from the other evidence. It does not permit an inference that the untendered evidence would in fact be adverse to the respondent, and the rule cannot be used to create evidence: Manly Council v Byrne [2004] NSWCA 123 and State Bank of NSW v Brown [2001] NSWCA 22.
I am therefore left with the evidence before me, both oral and written, to solely rely upon in order to determine whether the applicant injured his neck on 17 November 1997. The applicant bears the onus of proof in this regard.
In Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10 (Drca), Roche DP stated:
“103. Last, by saying that there was not ‘sufficient evidence’ for him to be ‘comfortably satisfied’ that Mr Drca’s gastrointestinal condition arose as a result of pain relieving medication for his accepted back injury, the Arbitrator applied the wrong standard of proof. For an applicant to succeed in a claim for compensation, he or she only has to satisfy the Commission on the balance of probabilities of the facts that establish the claim.
104.   A mere mechanical comparison of probabilities, independent of a reasonable satisfaction, will not justify a finding of fact. The fact finder must feel ‘an actual persuasion of the occurrence or existence of the fact in issue before it can be found’ (Redlich JA, Harper JA and Curtain AJA in NOM v DPP [2012] VSCA 198 at [124]; see also Dixon J in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 and Dixon, Evatt and McTiernan JJ in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712).
105.   Once the feeling of actual persuasion has been obtained, ‘it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’’ (McDougall J (McColl and Bell JJA agreeing) at [51] in Nguyen v Cosmopolitan Homes [2008] NSWCA 246).
106.   The standard of being ‘comfortably satisfied’ is a higher standard than that of actual persuasion on the balance of probabilities. While the balance of probabilities standard will be satisfied if an Arbitrator is ‘comfortably satisfied’ that a fact exists, that is not a necessary prerequisite for satisfaction of the civil standard and the Arbitrator erred in applying that standard. The evidence only had to establish that it was more probable than not that the gastrointestinal condition resulted from the medication taken for Mr Drca’s accepted back injury.”
On balance, I do not feel an actual persuasion with a probability in excess of 50% that the applicant has proved that he injured his neck on 17 November 1997.
I find the mechanism of the applicant’s injury critical in determining the body parts that were then injured.
In the applicant’s fourth statement dated 7 June 2023 (see paragraph 26 above), he is detailed in his description of a fall into a concrete pit while pulling back on a hose, in which he hit his head hard on concrete. The applicant’s second statement prepared on a date after October 2017 (see paragraph 19 above) provides a similar description of a fall, without describing his head being hit. Dr Anderson also obtains a similar history (see paragraph 50 above) although this history is slightly inconsistent in that at one point the doctor refers to the “landing at the bottom of the pit through his head back” and at another point the doctor refers to the applicant’s head coming into contact with the “ground of the pit”. It is also of course relevant to note that Dr Anderson only obtained this history from the applicant on
22 February 2018.
Aside from my concerns (see paragraph 65 above) as to how the applicant can be so detailed in the 7 June 2023 statement when there were many other propositions that he could not recall whilst he was giving his oral evidence, the description as to how his injury occurred in that statement is significantly different to more contemporaneous descriptions in this regard.
These more contemporaneous descriptions include:
(a)    the applicant’s first statement dated 8 December 2003 – see paragraph 16 above;
(b)    the Worker’s Claim for Compensation (which the applicant conceded in his oral evidence that he authored) – see paragraphs 27-29 above;
(c)    the Employee’s Report of Injury (which the applicant conceded in his oral evidence that he signed after his wife completed it) – see paragraphs 27-29 above;
(d)    Dr Beran’s report – see paragraph 42 above, and
(e)    Dr Pierides’ report – see paragraph 68 above.
All of the descriptions in these documents are consistent and refer to the mechanism of injury as involving pulling back on a hose causing the onset of severe back pain. None of the documents refer to a fall occurring or any neck injury occurring at the time.
There is no explanation in the evidence from the applicant (either written or oral) as to why these descriptions (all of which were either given by him or recorded following histories obtained from him during medico-legal examinations of him) did not refer to a fall. It is highly relevant to note in this regard that the descriptions were all given in the first six years or so following the 17 November 1997 accident, whereas the first description given of a fall occurring at the time of the accident did not occur until the applicant’s second statement, which was given after October 2017.
The applicant is not assisted by any contemporaneous records from his treating doctors regarding the mechanism of his accident on 17 November 1997. Even the report from
Dr Allan dated 15 June 2007 (see paragraph 46 above), which is the first report in time to draw a connection between the applicant’s neck symptoms and a “work injury”, does not refer to the mechanism of the work injury.
The applicant is also not assisted by his wife’s statement (see paragraph 30 above) or the judgment of Neilson CCJ in his initial proceedings before the former Compensation Court (see paragraph 67 above). Neither of this evidence considers the mechanism of the accident on 17 November 1997.
In all the circumstances, I prefer the consistent contemporaneous descriptions detailed at paragraph 106 above. I find that the applicant’s accident on 17 November 1997 occurred in accordance with those descriptions and involved the onset of back pain while pulling back on a hose. I am not satisfied on the balance of probabilities that the accident involved a fall into a pit as the consistent contemporaneous descriptions do not refer to such a fall occurring. Of course, the consistent contemporaneous descriptions include descriptions actually signed off by the applicant on 24 November 1997 in the Worker’s Claim for Compensation and the Employee’s Report of Injury.
The applicant conceded that (see paragraph 89 above) if I found that the mechanism of his injury on 17 November 1997 did not involve a fall, it would be “very difficult” for him to succeed.
In my opinion, there is no reliable evidence that I can use to draw a connection between an incident that involved the onset of back pain while pulling back on a hose, and an injury to the applicant’s neck. This is despite the Jones v Dunkel inference drawn by me at paragraph 99 above. In this regard, considering my finding as to the mechanism of the applicant’s injury on 17 November 1997, I do not believe that the other evidence presented allows the Jones v Dunkel inference to become relevant.
The applicant in this regard essentially relies upon his statement and oral evidence,
Dr Beran’s 30 June 1998 report (see paragraph 43 above), and Dr Sahukar’s undated report (see paragraph 34 above). There is otherwise no medical evidence before me of the applicant making neck complaints until July 2001 (at which time the medical evidence relates the neck complaints to a fall in July 2001 rather than the 17 November 1997 accident). The documents mentioned at paragraph 106 above (which include the most contemporaneous documents before me) do not refer to neck symptoms, except briefly in Dr Beran’s report.
In relation to the applicant’s statement and oral evidence, I have already found it to be unreliable. I reject the applicant’s submission (at paragraph 83 above) that the applicant’s oral evidence was “solid”. This is not necessarily a criticism of the applicant but more an observation that his current memory as to events which occurred in the late 1990s and early 2000s is either poor (he conceded in his oral evidence on a number of occasions that he could not recall certain propositions put to him) or does not correlate with the limited contemporaneous records available.
In relation to Dr Beran’s 30 June 1998 report, the doctor conducts a limited neck examination of the applicant and finds discomfort with lateral flexion to the left. As discussed (see paragraph 45 above), he otherwise does not mention any neck symptoms in his report, and importantly, he does not draw any connection between his findings of discomfort and the applicant’s 17 November 1997 accident. With such a limited description and evaluation of the applicant’s neck discomfort, I do not consider that I can draw any inference that the discomfort was due to the 17 November 1997 accident.
In relation to Dr Sahukar’s undated report, much was made in both parties’ submissions regarding the reference to cervical spine radiology in the report. Although the reference to that radiology seems out of context when reading the report, I am willing to accept that the reference is accurate. However, this only assists the applicant in showing that he had neck symptoms at the time of the report (which was prepared on a date after 18 January 1999 - some 14 months after the 17 November 1997 accident). It does little more than confirm
Dr Beran’s findings of neck symptoms.
Without the actual radiological report referred to by the doctor, or further information from the doctor regarding causation of the applicant’s neck symptoms, I do not consider that I can draw any inference that the reason for the radiology request was due to the 17 November 1997 accident.
In my opinion, my view in this regard is supported by the subsequent evidence from the doctor. This evidence includes his report dated 7 August 2021 (which is essentially a referral of the applicant to Dr McDowell - see paragraph 38 above), in which he relates the applicant’s neck symptoms at the time to a fall which occurred on 12 July 2001. The report also mentions that the applicant injured his back in 1997, without mentioning any neck symptoms sustained at that time. If the doctor had believed that the applicant had sustained some neck symptoms as a result of the accident on 17 November 1997, it would have been entirely remiss of him to not refer to them in the referral of the applicant to a specialist for treatment of neck symptoms.
In relation to whether the applicant actually sustained a fall in which he injured his neck in July 2001, I agree with the applicant’s submission at paragraph 84 above.
Although I intend to find that the applicant did sustain a fall in which he injured his neck in July 2001, I agree that this would not prevent me (if I was otherwise persuaded by the remainder of the evidence, which I am not) from finding that he also injured his neck on
17 November 1997. However, my finding that there was a fall in July 2001 certainly affects and confirms my view as to the unreliability of the applicant’s statement and oral evidence.
In this regard, the applicant is adamant in his third statement (see paragraph 25 above) that the July 2001 fall did not occur. His wife also states (see paragraph 30 above) that “she does not recall” any such fall. I do not however accept this evidence in the context of the consistent and contemporaneous medical evidence that refers to the fall occurring. That medical evidence comes from not only Dr Sahukar’s clinical notes (see paragraph 36 above) and his 7 August 2021 report (see paragraph 38 above), but also from Dr McDowell’s report (see paragraph 41 above) as well as a radiological report (see paragraph 39 above).
In accepting this medical evidence, I have had regard to the need to exercise caution when relying upon clinical records as busy doctors sometimes misunderstand or misrecord histories when their concern is with treatment - see especially Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 and Mason v Demasi [2009] NSWCA 227.
However, it seems to me unlikely that three medical practitioners would have taken the same incorrect contemporaneous medical history, especially in circumstances where I have already expressed concerns as to the reliability of the applicant’s ability to recall. In relation to the statement of the applicant’s wife, I note that she simply says that she does not recall the July 2001 fall, which I take as suggesting that she does not completely discount that it may have occurred.
In relation to the evidence of Dr Allan (see paragraph 46 above), I do not intend to give that evidence much weight as there is no explanation as to how the applicant’s neck symptoms were “secondary to a work injury”. The report could also not be considered to be in any way contemporaneous to the applicant’s 17 November 1997 accident.

In relation to the evidence of Dr Anderson (see paragraphs 47-58 above) as well as the certificates of capacity relied upon by the applicant (see paragraph 59 above), I note that the histories taken of neck symptoms in that evidence are recorded over 20 years after the
17 November 1997 accident, and rely upon an acceptance of the applicant. I have found to be incorrect the history taken by Dr Anderson (see paragraph 50 above) of the mechanism of the applicant’s accident on 17 November 1997. I therefore propose to place little weight upon the opinions expressed by Dr Anderson, especially in circumstances where the doctor was asking for contemporaneous medical evidence (which was not available to him) to confirm his opinions – see paragraphs 54-55 above.
Finally, in relation to the applicant’s submission at paragraph 88 that the absence of neck complaints to treating doctors following the 17 November 1997 accident was explicable in the context of the applicant’s far more significant back symptoms, I accept the respondent’s submission at paragraph 92. I do not accept that a neck injury (as described by the applicant in his fourth statement - involving a hard hit to the head on concrete, disorientation, and severe headaches) would not be reported, even in circumstances where back symptoms were more severe.
In all the circumstances therefore, I find that there is insufficient evidence of a causative link between the applicant’s 17 November 1997 accident and any neck symptoms experienced by him. I am not satisfied that it is more probable than not that the applicant injured his neck in that accident. After evaluating all the evidence presented to me, I do not feel the actual persuasion (necessary according to Drca) to find either that the accident involved a fall into a pit or that the applicant in some way injured his neck in it.

SUMMARY

I therefore find that the applicant did not sustain an injury to his neck arising out of or in the course of his employment with the respondent on 17 November 1997, and to which his employment was a substantial contributing factor.
There will be an award in favour of the respondent with respect to the applicant’s claim pursuant to s 66 of the 1987 Act for any permanent impairment of the neck.
As agreed between the parties however, there will also be an award in favour of the applicant with respect to his claim pursuant to s 66 of the 1987 Act for further permanent impairment of the back.
In order to facilitate the awards made, I also make the necessary declaration pursuant to
s 162(1) of the 1987 Act, in circumstances where the respondent has ceased to exist.

[2023] NSWPIC 364

24 July 2023