Hargrave v Skelwork Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hargrave v Skelwork Pty Ltd [2025] NSWPIC 488
APPLICANT:	Corey Hargrave
RESPONDENT:	Skelwork Pty Ltd
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	17 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; application claimed costs of surgery to cervical spine and left shoulder; applicant sought only costs of surgery to cervical spine and general order for treatment of left shoulder; dispute as to injury; applicant unsure of date of injury; documents lodged by respondent established applicant was not working for respondent on alleged date of injury; injury may have occurred some weeks later; application amended to claim alternative dates of injury; summonses to give evidence served on applicant’s supervisor and respondent’s operations manager and director of the respondent; no application made to cross-examine applicant or call evidence from witnesses under summons; application by respondent to dispute “notice” and “claim” refused; respondent did not dispute reasonable necessity of proposed surgery to cervical spine; consideration of application of section 59A, Mateus v Zodune Pty Limited trading as Tempo Cleaning Services, State of New South Wales v Hunt, Humphrey v Woolworths Group Limited, and Flying Solo Properties Pty Ltd t/as Artee Signs v Collet; Held – applicant sustained injury to neck and left shoulder; employment was a substantial contributing factor to injury; declaration as to costs of surgery to cervical spine and treatment of left shoulder.
DETERMINATIONS MADE:	The Commission determines: 1. The surgical treatment claimed by the applicant, that is anterior cervical discectomy and fusion at C3/4, and associated expenses, is reasonably necessary medical treatment as a result of injury on or about 22 March 2022. 2. The applicant is entitled to a general order for medical and related treatment of his left shoulder, pursuant to s 60 of the Workers Compensation Act 1987, subject to the limitations imposed by s 59A of the Act. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Corey Hargrave (Mr Hargrave), is employed by the respondent, Skelwork Pty Ltd (Skelwork), as a scaffolder.
Mr Hargrave claims to have sustained injury to his neck and left shoulder arising out of or in the course of his employment with the respondent.
On 26 March 2024, Dr Stuart Jansen requested of the respondent’s insurer, EML, approval for proposed (left) shoulder arthroscopic AC (acromioclavicular) joint resection.
On 4 April 2024, Dr Ravi Kumar Cherukuri, requested of EML approval for proposed anterior cervical discectomy and fusion (ACDF) at C3/4.
On 14 May 2024, EML issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The date of injury was stated to be 8 February 2022.
EML disputed that the applicant had sustained injury; that employment was a substantial contributing factor to the injury; that the applicant had incapacity for work as a result of the injury; and that medical or related treatment was reasonably necessary as a result of the injury.
By letter dated 4 November 2024, the applicant’s solicitors requested on his behalf that EML review its decision to dispute liability for the claim.
On 18 November 2024, EML advised that its decision had been maintained and amended. EML maintained the decision “pursuant to sections 4, 9A, 33, 59 and 60 of the 1987 Act including the shoulder arthroscopic AC joint resection and the anterior cervical discectomy and fusion and amended to include a dispute under section 4(b) of the 1987 Act.”
The applicant lodged an Application to Resolve a Dispute (the Application) on 7 May 2025.
The applicant claimed that on or about 8 February 2024 [sic: 2022], at Moss Vale, he was moving a heavy piece of scaffolding as part of his duties with the respondent when the scaffolding caught on a roof truss, causing a jolting sensation. That led the applicant to drop the scaffolding and fall forward onto the wooden truss of the roofing, suffering injury to his left shoulder and neck.
The applicant sought the sum of $13,805.50 in respect of shoulder reconstruction and repair, as recommended by Dr Jansen; ACDF at C3/4, as recommended by Dr Cherukuri; and associated hospital and anaesthetist fees.
The respondent lodged its Reply on 30 May 2025.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant has sustained injury to either his cervical spine or left shoulder;
(b)    whether employment was a substantial contributing factor to alleged injury, and
(c)    whether the medical or related treatment claimed is reasonably necessary as a result of injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation/arbitration hearing on 28 August 2025, on the MS Teams platform. Mr Andrew Parker of counsel appeared for the applicant, instructed by Mr Forshaw. The applicant was present. Mr Necovski appeared for the respondent, instructed by Ms Browne. Ms Ozer of EML also attended.
Summonses to appear had been issued to Mr Brayden Webb, Mr Marc Leggett, and Mr Matthew Forner. Mr Webb was present at the commencement of the matter.
I was advised that no application to cross-examine any of the witnesses would be made, and the witnesses were therefore excused.
The respondent sought to rely on Application to Lodge Additional Documents dated 18 August 2025 and attached documents; and the applicant sought to rely on Application to Lodge Additional Documents dated 21 August 2025 and attached documents.
The applicant initially objected to the admission of the respondent’s additional documents, although he had sought to respond in his additional documents.
The applicant, having reviewed the respondent’s additional evidence, sought to amend the Application to plead that the date of injury was on or about 8 February 2022 or on or about 22 March 2022.
The respondent initially objected to the applicant amending the Application.
The parties ultimately agreed that both the applicant’s and the respondent’s additional documents would be admitted into evidence; and the respondent withdrew its objection to the amendment to the Application.
The Application was therefore amended to claim that the applicant sustained injury on or about 8 February 2022 or on or about 22 March 2022.
The respondent sought leave, pursuant to s 289A(4) of the 1998 Act, to dispute that the applicant had given notice of injury or made a claim within the periods mandated by ss 254 and 261 of the Act.
The applicant opposed leave being granted to the applicant to raise the additional grounds of dispute.
Counsel accordingly made submissions on the respondent’s application.
The application was refused, for reasons provided at the conciliation/arbitration hearing, and which were recorded. I now expand on those reasons.
Deputy President Roche considered the application of s 289A(4) of the 1998 Act in Mateus v Zodune Pty Limited trading as Tempo Cleaning Services.[1]
[1] [2007] NSWWCCPD 227.
Roche DP said (at [38]) that the arbitrator had considered the following factors in exercising her discretion:
(a)    the degree of difficulty or complexity to which the unnotified matters give rise;
(b)    when the insurer notified that it wished to contest any unnotified issue/s;
(c)    the degree to which the insurer has otherwise fulfilled its statutory obligation to notify the worker of its decision disputing liability;
(d)    any prejudice that may be occasioned to the worker, and
(e)    any other relevant matters arising from the particular circumstances of the case.
Roche DP held that the arbitrator had correctly identified the matters relevant to the exercise of her discretion. He added (at [48]), the following observations:
(a)    a decision by an insurer to dispute a claim for compensation should not be made lightly or without proper and careful consideration of the factual and legal issues involved;
(b)    any insurer seeking to dispute an unnotified matter is seeking to have a discretion exercised in its favour and, accordingly, must act promptly to bring the matter to the attention of the Commission and all other parties;
(c)    any unreasonable or unexplained delay in giving notice of an unnotified matter will be relevant to the exercise of the discretion;
(d)    in exercising its discretion the Commission may have regard to the merit and substance of the issue that is sought to be raised;
(e)    in assessing prejudice to the worker, it will be significant to consider when and in what circumstances the worker was first made aware of the unnotified issue that is sought to be raised;
(f)    though it will be relevant to the exercise of the discretion to keep in mind that the Commission must act according to equity, good conscience and the substantial merits of the case, those matters will not be determinative, and
(g)    the general conduct of the parties in the proceedings will also be relevant to the exercise of the discretion.
In this matter, the insurer issued both a dispute notice and a review notice. Neither the dispute notice nor the review notice raised as issues that the applicant had failed to give notice of the injury or make a claim within the requisite time periods, although the review notice amended the insurer’s decision.
As the applicant submitted, the dispute in this matter has always been about whether the injury actually occurred, and that is reflected in the dispute and review notices. If the injury did not happen, then the issues of “notice” and “claim” would have no merit or substance. That weighs against leave being granted to raise those issues.
The respondent gave notice in the Reply of its intention to make an application to raise “notice” and “claim” and confirmed this at the preliminary conference on 13 June 2025.
The respondent has provided no explanation of the delay in notifying the applicant of these matters, noting that the dispute notice was issued in May 2024 and the review notice in November 2024. The respondent has not pointed to additional evidence that caused it to seek to raise further issues. On balance, I do not accept that the respondent acted promptly to bring this matter to the applicant’s attention. That weighs against leave being granted to raise these issues.
The applicant would have required evidence to meet the issues of “notice” and “claim”, and the determination of his claim would have been delayed, in circumstances where both the independent medical examiners qualified in the matter agree that he requires the surgery proposed by Dr Cherukuri. The applicant could, however, have obtained any evidence on which he sought to rely after being served with the Reply.
As regards the general conduct of the parties, that is largely a neutral factor. I note, however, that the applicant had attempted to obtain from the respondent information that may have assisted him to determine when the alleged injury was most likely to have occurred, and had received no response. It was the evidence attached to the respondent’s Application to Lodge Additional Documents dated 18 August 2025 that caused the applicant to seek to amend the Application to plead an alternate date of injury.
The applicant advised that he did not seek an order for the surgery to his left shoulder proposed by Dr Jansen but rather sought a general order pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) with respect to treatment of his left shoulder.
The applicant did seek an order that the respondent pay the costs of surgery to his cervical spine, as proposed by Dr Cherukuri.
I advised the parties that, due to the application of s 59A of the 1987 Act, if the issue of injury was determined in the applicant’s favour, I proposed to make a declaration regarding the costs of the surgery to the applicant’s cervical spine, and s 60 expenses.
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 and attached documents;
(b)    Reply and attached documents;
(c)    Application to Lodge Additional Documents and attached documents, dated
18 August 2025, lodged by the respondent, and
(d)    Application to Lodge Additional Documents and attached documents, dated
21 August 2025, lodged by the applicant.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Corey Hargrave

The respondent commissioned a factual investigation by SureFact Group, which reported on 15 March 2024.
The report refers to the attachment of a draft statement from the applicant, but the statement is not attached.
The applicant’s first statement is dated 6 March 2025.
He is a scaffolder by trade and has been employed by Skelwork for a number of years.
He suffered a serious injury at work on or about 8 February 2022. This is roughly when he thinks the injury occurred. He cannot recall precisely because his employer did not lodge a claim form or notify the insurer.
On the day of the accident, he was moving a heavy piece of scaffolding, approximately 3m long, through the lower area of a roof at a job in Moss Vale. The piece of scaffolding got caught on the roof truss, causing a jolting sensation.
This caused him to drop the scaffolding, and he fell forward onto the wooden truss of the roofing, sustaining injury to his left shoulder and neck.
There was a huge bang, and he started yelling and swearing. He was in a lot of pain.
Another worker, Brayden Webb, came and saw him. He told [Brayden] the standard got caught on the frame, which caused a jerking action in his left shoulder, and he hurt his left shoulder and neck.
At the time, his shoulder was the main problem. However, he had problems in his neck as well. That was why he told Brayden Webb. He distinctly remembers that, as he was worried he may have done some serious damage.
He contacted his mother, Tracey Rigon, on the day of the accident. He was in so much pain and really scared that something serious had been done. He specifically told her he hurt his shoulder and neck whilst at work.
He remembers telling either Mr Leggett or Mr Forner about the injury and that he had hurt his left shoulder and neck. No claim was lodged at the time, “or anything like that”, and he assumed they would take care of the formalities.
He is not a lawyer. He does not know what is required. He assumed simply telling them was enough. In hindsight, he should have made sure they lodged a formal claim form, although he certainly didn’t know the injury was as serious as it was.
He was hoping it was only a minor injury and thought if a claim should be lodged, his employer would do it on his behalf.
He couldn’t continue his normal duties for a few weeks. He remained on site but was not carrying out anything physical. He continued to work as best he could, though his left shoulder and neck pain increased.
There is no way his employer did not know about his injuries. He was obviously not doing them [assumed to be a reference to his normal duties]. He finds it surprising it was suggested by his employer that the accident did not happen. Whilst he accepts it was not directly witnessed, Mr Webb came onto the scene almost directly after.
He complained to his employer immediately. That is why he was allowed to keep working, albeit in restricted duties.
He continued to have problems with his neck and shoulder following the accident. The pain and restrictions did not go away. He complained to doctors over the years, although different doctors focused on different things, presumably due to their own specialities. As he is not a doctor, he just responded to the questions asked and took what he was advised on board.
Throughout 2022 he continued to work. He experienced occasional paraesthesia in the left arm, and numbness and weakness in his left hand. This was exacerbated whenever he had to pull equipment onto his shoulder.
It was really obvious he was having pain and difficulties. He remembers complaining about it to people at work. Mr Webb says he noticed it. There is no way his employer would not have noticed it.
This affected his sleeping. He was unable to sleep on his shoulder or lay his arm under his partner.
On 24 January 2023 he sustained an injury to his right ankle, full thickness tears of the ATFL (anterior talo-fibular ligament) and CFL (calcaneofibular ligament). This is the subject of a separate claim.
Due to his ankle injury, he had about eight months off completing normal duties. Because he was not doing heavy work, he felt a slight improvement in his shoulder and neck problems.
When he had to return to full duties in August 2023, he noticed his left shoulder condition rapidly deteriorated, especially when he had to lower equipment or move his left arm across his shoulder.
Eventually he could no longer manage, and sought assistance from Dr Ameer Alhusuny on 14 February 2024.
He was referred for various scans, physiotherapy and to Drs Jansen and Cherukuri.
The physiotherapy did not assist and made his condition worse.
Dr Cherukuri recommended a steroid injection in his neck. This gave him minimal benefit, and Dr Cherukuri subsequently recommended an ACDF at C3/4.
Dr Jansen recommended a left shoulder arthroscopic AC joint resection.
The risks versus benefits of surgery have been fully explained to him. He considers it the last realistic option for him to get on with his life. He is only 31 but lives like an invalid.
Prior to the injury he did not have any problems with his left shoulder or neck. He does not think he would have been able to be a scaffolder if he had a significant constitutional problem. He was only doing so due to help from his co-workers and taking heavy pain medication.
Mr Hargrave made a supplementary statement dated 21 August 2025, in response to further factual evidence served by the respondent.
He has read the statement of Michael Mussared dated 26 June 2025.
He agrees with most of what Michael has said.
Michael has said he did not recall him reporting an injury to his left shoulder or neck in February 2022 or throughout his employment. Michael was not a supervisor at that stage so he wouldn’t have been reporting injuries to him.
Michael talks about him injuring his left shoulder about a year ago. He infers Michael is talking about when the symptoms became worse, he more regularly complained about them, and a claim was lodged.
He agrees that he regularly complained about his shoulder and neck between the date of the injury and the claim being lodged.
He does not dispute there is a relationship between him and Brayden Webb. Brayden dates his sister, and he sees him outside of work. Brayden recommended him to Skelwork.
He has read the statement of “Matt” Forner dated 26 June 2025.
The statement is quite disparaging of him, which is surprising, considering he has worked for Matt Forner and Skelwork for seven years, and continues to work for them. If Mr Forner truly believes half of what he is saying, it seems strange he would continue to employ him.
He does not know what is meant by him being “unhealthy”, having an unhealthy relationship with prescription medication, and not exercising outside work. Mr Forner only socialised with him on rare occasions.

He had to take painkillers as a result of his ankle injury. That was short-lived. He disputes having an issue with prescription pain medication.
There has always been an attitude of not reporting injuries at Skelwork. They have been told not to claim workers’ compensation unless absolutely necessary, due to the cost.
His ankle injury was so obvious and bad there wasn’t really any choice. Marc Leggett took him to IOH (Illawarra Occupational Health) the employer’s healthcare provider, on the day. They also completed the workers’ compensation paperwork, so he didn’t really have much of a hand in the process.
He denies significantly abusing opioid-type medications. He had been prescribed pain medication because of his injuries.
He had a bit of a mental health crisis last year. He was taking Valium for a short period, acknowledges having issues, and being provided with a written warning. This was not related to opioid-type medication.
He admits to having had mental health episodes in the last year but denies having made the phone call to which Mr Forner has referred.
He denies starting any rumours about the employer being floated. He was told that by Steve Moretti.
Matt Forner indicates he is the biggest liar he has ever met. If this were the case, he does not understand why they have continually employed him for seven years. He admitted to the Valium use last year for about three weeks in the midst of a mental health crisis that he thinks was triggered by a relationship breakdown.
He disagrees that the respondent managed workers’ compensation claims perfectly and always filed a claim when an injury was reported. There is a general approach that they should not make such claims. He can think of heaps of incidents involving employees such as Alex Smith, Joey Locke, and Blake Christiansen, who have been injured and experienced the same thing.
He repeats that he told either Marc Leggett or Matt Forner, as well as Mitch Tomkins, about the injury.
He denies making the injury up, and notes that the medical professionals don’t think he is [making it up].
He cannot recall the exact date of the injury, but advises it occurred at a job in Moss Vale on or about 8 February 2022.
Matt Forner indicates he was not working for the employer on 8 February 2022, and if their pay records show that, that is likely to be the case. However, he cannot recall the exact date, other than it occurred at the job at Moss Vale.
He has attempted on multiple occasions to obtain details from Matt Forner and the directors about the dates they were at Moss Vale, so he could try and more accurately advise the date he was injured. Matt Forner has never responded to him and provided that information.
He has now seen details of the projects he worked on and when. He notes that from at least 22 March 2022, they were working on the job site he was injured on, being [number redacted] Moss Vale Road, which he now understands is actually in Bowral.
Based on this information, he believes his injury could be narrowed down to having occurred on or about 22 March 2022.
In relation to his criminal record, those offences to which Matt Forner refers were essentially isolated to his late teenage/early 20’s years. They have been aware of it throughout his employment and the only recent offences were related to driving.
The job site at Bowral was a long-term project, with three houses being built on the property. The accident occurred at the first house being constructed.

Attachments to statement

The applicant has attached copies of text messages exchanged with Mr Forner, to which he has referred in his statement. I do not propose to repeat the messages verbatim.
On 18 December 2024, the applicant asked if Mr Forner could backtrack on the computer to when he was scheduled to that job site in Bowral and hurt himself – “just need the date that it happened”.
Mr Forner asked, “roughly when was that? Was it like 2022?”
The applicant replied he was no good with dates. It was Moretti’s job, and they were more than halfway completed on the site. It “happened on the first unit as you come into the driveway.”
The applicant said he would try to look at his photos to when he recorded “Webby” (assumed to be Mr Webb). “Snelly” was also working for them then. He left not long after to go to KJ’s.
The applicant has also attached a list of jobs on which he worked (attached by the respondent to its Application to Lodge Additional Documents).
This document shows that the applicant worked at the address at Moss Vale Road on
22 March 2022, 24 March 2022, 25 March 2022, 4 April 2022, 5 April 2022, 8 April 2022,
11 April 2022, 26 April 2022, 27 April 2022, 23 May 2022, and 24 May 2022. The property is described as “residential”.

Evidence of Brayden Webb

Mr Webb’s statement is dated 24 September 2024.
He commenced work with Skelwork in about 2016. Since that time, he has worked with Corey Hargrave.
He recalls an accident a few years ago while they were working on a site at Moss Vale.
Corey had advised him the date of the accident was 8 February 2022. That “seems about right” to him.
He was out the front of the site when he heard a loud scream and a lot of swearing from Corey.
He went back to ask Corey what happened. He noticed Corey had a lump on his head and a scratch on his arm.
Corey told him he had been pulling up a standard and it got caught on the frame, causing his left shoulder to jerk and cause him a lot of pain in that shoulder, as well as his neck.
While he didn’t see the accident, he heard it, and Corey was clearly in a lot of pain and discomfort.
From that day, he knows Corey has experienced pain in his shoulder and neck. While he has continued to work, “it’s pretty clear he’s been struggling since the day of the accident.”
He sees at work that Corey struggles physically and certainly can no longer do what he used to.

Evidence of Tracey Rigon

Ms Rigon’s statement is dated 24 September 2024.
She recalls that about 2.5 years ago Corey had an accident at work. She understands from Corey that the date was 8 February 2022.
She remembers receiving a phone call from Corey late that afternoon. He told her he’d had an accident at work and hurt his shoulder and neck. He said he was in so much pain.
Corey later told her he was pushing up a pole on site and it got caught on a frame, which caused him to jar his shoulder and neck.
From that time Corey has consistently complained of shoulder and neck problems. His shoulder would give him so much pain. He gets pins and needles down his arm. He’s lost the ability to put pressure on his arm. Because of this, he can’t do a lot of activities he used to do. He lacks the strength, and it causes him too much pain.
She has noticed Corey is always conscious of what he does in everyday life. This includes playing with his nieces and nephews. His injuries have not only given him everyday pain, but have also been a big issue psychologically, causing depression.
Corey still works with the same employer as a scaffolder but is always verbal about his concerns that he’ll lose his job due to his injuries and that he struggles to do the work.

Evidence of Taylor Hargrave

Ms Hargrave is the applicant’s sister. Her statement is dated 6 May 2025.
Her brother suffered a work-related injury to his neck and shoulder about three years ago.
She does not recall the exact date, but Corey advised her it was in February 2022. That “seems right to me.” She remembers about that time he advised he had hurt his neck and shoulder at work.
It had something to do with scaffolding. She does not really understand the mechanism, only that he said he hurt his neck and shoulder at work.
Since that time, Corey has been regularly complaining about his neck and shoulder problems, while trying to manage as best he can.
Over time it has deteriorated significantly, and Corey is now at a point where he is barely managing at all. He can hardly pick up her kids and she knows he takes a lot of pain medication to get by at work each day.
She does not think he really should be working, but he cannot survive without the money. It is not like he has any transferable skills.
She always notices him grabbing his shoulder or rubbing his neck.

Evidence of Blake Christiansen

Mr Christiansen’s statement is dated 14 August 2025.
He has worked for Skelwork from March 2025. He works with Corey Hargrave.
He knows that Corey suffered a work related shoulder and neck injury some years ago. He regularly complains about those injuries at work and tries to manage them as best he can.
He also understands Corey has had issues having his workers’ compensation claim accepted.
He had suffered injuries at work and been actively advised by Skelwork management not to report the injuries as being work related.
On 20 June 2025, at 2pm, he was working on the scaffold when he cut his hand very deeply. He has attached photographs that show the cut.
While it was bleeding, a work mate called Marc Leggett to tell him about the accident. Marc Leggett told him that if he was to go to hospital, not to say he was working, and he’d instead pay him for the whole day.
His understanding is that this is not the first occasion that work injuries have gone unreported like that.

Evidence of Marc Leggett

Mr Leggett is the respondent’s operations manager. His statement is dated 13 March 2024 but was signed on 18 March 2024.
He believes the applicant has been with the company for three or four years. He previously worked for them before leaving and coming back.
The applicant has an unstable personality and personal life. He used to have a relationship with whom he shared a stepchild. The relationship ended and the applicant was emotional and threatening. They provided every support to assist him when was suffering mental health issues.
The applicant would have signed an employment contract, completed an induction, and received an employee handbook with relevant policies and procedures.
The applicant would be supervised by the site supervisor. There are three, Michael Mazard [sic: Mussared], Sam Epstein, and Brayden Webb, who is the applicant’s brother-in-law. They rotate depending on the amount of jobs.
The process to report an injury is to contact management, who assess whether it is to be major or minor, and then book the injured individual to see IOH. Light duties are offered in the office, as there is always work to do. Near misses are also reported.
Prior to the applicant’s previous claim, he had sustained an injury and followed the processes. However, it had been found during the process he had not followed the injury reporting procedures.
He was not made aware of the injury when the applicant stated it happened in 2022. He received a call about three to four weeks ago, when the applicant said he could not lift his arm past his shoulder and he believed he had reported it to Matt, “which he did not as I had asked Matt what had happened and where the report was.”
He found it hard to believe there were no witnesses, as there are usually two men lifting a standard when it is going through the roofing. Even if the standard fell, it is not enough to jolt someone forward. There is just not enough force. In this incident, there are usually two people injured, as it is relatively common. The person holding the standard in the roof would usually get hit in the head with it when it falls.
He immediately made an appointment with the IOH and attended with the applicant. The applicant told the doctor what the injury was and noted the physiotherapist had told him the issue. The doctor said he found it hard to believe, as what the applicant stated was going on could only be identifiable with an X-ray.
He believes the claim is fraudulent. He believes the applicant is addicted to pain killers and since the ankle has healed, he has made up another claim to get access to them. During appointments, he would “name drop” pain killers and note which ones he could or could not take.
He believes the applicant is a compulsive liar, unstable, and has ongoing mental health concerns. The applicant has previously informed him that in his early 20’s he suffered an overdose on pain killers. He has not noticed the applicant being high on pain killers as he does not pay much close attention to him. They do not conduct random drug or alcohol testing.
The applicant has gone out of his way to tell lies about multiple individuals and has a reputation for being a compulsive liar.
He believes the applicant has financial difficulties. He has asked on multiple occasions to have his holidays paid out to pay bills.
He does not believe the applicant is well liked because everyone gets sick of his lies.
The applicant is not the worst worker and not the best.
The applicant had a previous claim in 2023 after rolling his ankle when walking down the stairs.

Evidence of Matthew Forner

Mr Forner is a director of the respondent. His statement is dated 23 June 2025 but was signed on 27 June 2025.
Throughout the course of the applicant’s employment, he has been unhealthy. He also has an unhealthy relationship with prescription medication. He does not exercise outside of work.
The applicant would have gone through an induction around scaffolding. They would have told him verbally who to call when. In 2019, the induction process would not have been the best.
The applicant would not have been provided with the policies and procedures but would have been provided with the safe work practices manual.
The employer completes toolbox talks about accident and incident reporting. Workers would be required to sign that they understood the content. The applicant is acutely aware of the reporting process as the injury to his ankle was correctly reported. He knew what to do.
At the time of the injury, the applicant would have been employed as a casual. They have since made him a permanent full-time employee.
The applicant has been counselled for performance issues. They had also noted a significant abuse of opioid type medications. They provided him with a written warning, and he signed a form stating that he consented to future drug testing.
The applicant has also had mental health episodes when he would call threatening suicide. He has been warned about making up rumours that the employer had received $20 million to float the company.
The applicant is the biggest liar he has met. Generally, he operates by manipulation and making things up. He has also admitted to abusing prescription drugs. They like to provide people with chances. The applicant has been provided with multiple.
This claim is an outlier. They have always managed claims perfectly and always filed a claim when an injury has been reported, unless requested by the employee not to.
The applicant ‘s employment has not been terminated.
The applicant is normally supervised by Sam Epstein, Michael Mussared, and Brayden Webb.
He is not aware of the applicant injuring himself on 8 February 2022, or of the particulars of the injury.
He has no recollection of an incident with the applicant’s shoulder occurring at the time. There was a point when he had injured his ankle. He was on light duties in the office and mentioned his injured shoulder in passing.
This occurred on 24 January 2023. The applicant was standing in front of the fridge and rotating his shoulder. He said he did not know what he was going to do about his shoulder and did not want to have surgery.
He asked the applicant why he did not tell them at the time of the incident. The applicant said the reason was that he had said they could not have any more lost time claims. He disputes this occurring, and “if you look at our claims history, nothing like this had occurred.”
When there is a lost time injury, their premiums go up. They provide suitable duties and appropriate medical attention. If the applicant was injured, they would have recorded the injury, picked him up, and driven him to the doctor.
The applicant did not report his injury until 14 February 2024. They then reported it to iCare. They stated to iCare that they thought the injury did not occur at work. This is the first of approximately 50 claims they have disputed.
He believes the applicant was making the injury up. He has a history of making things up and lying.
The applicant was not working for the employer on 8 February 2022. His last scheduled day before the event was 11 October 2021. He recommenced work on 9 March 2022. During this time, he was working at North Wollongong Novotel. He remembers the applicant telling the other director he injured his back in a stairwell at the hotel.
After recommencing work on 9 March 2022, the applicant only missed three days of work in March.
The applicant said he injured his shoulder at work. He did not go into detail. When they talked about it, he said he did it a year ago and could not rotate his shoulder or lift the arm.
There are no records of first aid or medical assistance being provided to the applicant for a shoulder injury. The applicant did not mention any witnesses or the site where the injury occurred. He later mentioned a potential site and witnesses.
There were complaints that included the fridge incident in January 2023. He did not hear anything further from the applicant about it until February 2024. On 14 April 2025, the applicant had an operation for something unrelated to work. He has been slowed down by over 50% and has still been paid at his full rate. He is not capable of completing his role. They have been supportive through this process.
The applicant did not ask for a claim to be submitted at the alleged time of his injury. Over the past year he had lodged minor incidents and refused requests to go the doctor.
They lodged the claim for the alleged left shoulder injury on 14 February 2024, which was the day the applicant reported the injury. He believes he was frustrated with the applicant and filed the claim off his own bat. He cannot recall the applicant requesting it. He just recalls being frustrated with the situation.
The usual process for reporting an injury involves a worker calling a supervisor, who would notify a member of the office staff. The office worker would then create a claim [sic] with iCare as a notification only.
The injured worker would then be taken to the doctor. They use IOH. The worker would be accompanied by a supervisor or member of the office. The injury is assessed, and they provide light duty tasks. The doctor would assess those options and provide a certificate of capacity (COC). The COC is provided to the insurer, and the claim moves on from there.
They are aware of the applicant “shopping around for pain pills with different doctors related to his alleged injuries.”
From what the applicant has told him the injury is there, but it is very old. The applicant has been involved in motorbiking and he is sure he has fallen off his motorbike.
The applicant has a criminal record of six or seven pages of offences. In the application process, he stated his record would be clean. This shows his dishonesty. His offences include stalking, intimidation, illicit drug use, contravening a prohibition order, common assault, breaches of apprehended violence order, possessing prohibited drugs, destroying property “etc”. He was put through court-mandated anger management and drug addiction counselling.
Brayden Webb has been an excellent friend of the applicant. He is the applicant’s brother-in-law. They have worked together in the past and would have worked together in early 2022. They recently took a holiday where there was a falling out.
In the past, the applicant’s mother had called him crying about the applicant’s suicidal behaviour. He had spent 30 to 45 minutes supporting her. This was related to the applicant’s substance abuse.
He believes all company policies and procedures have been followed. If the applicant had formally reported it when the fridge incident occurred, the situation would have been handled differently.
The applicant complains a lot. He says a lot of things that are not true. He says “stuff about everything” but completes his duties and it has not stopped him from coming to work.

There are qualified first-aiders on duty. The supervisors are qualified. First aid boxes are provided by the principal contractors on site. Some smaller sites do not have qualified first aiders, but first aid kits are provided.
He does not believe the applicant has done everything to assist himself, has attempted proper rehabilitation, or attempted to improve the alleged situation. He did not report the injury correctly so they could act.
He believes they have assisted the applicant through providing paid time off without using leave and being lenient with his duties and other unrelated medical conditions.
He believes the applicant has a pre-existing injury that has been exacerbated by his duties. He was not allowed communication with the doctor who completed the scan, but he believes the injury was old and did not occur acutely. It was not an injury that would happen without buildup.
When the claim was made, iCare engaged an investigator. He does not recall being interviewed.

Evidence of Michael Mussared

Mr Mussared is a supervisor. His statement is dated 26 June 2025.
He usually supervises the applicant.
The usual practice for reporting an injury is to call him or the office. If they are hurt, they figure out the damage. They then pick them up and take them to the doctor. The OH & S (occupational health and safety) takes it from there. Now they have an injury logging system. It is usually handled by Matt or Marc.
He does not recollect the applicant injuring his left shoulder or neck in February 2022 or through his employment. He knows he has injured his left shoulder. He thinks this happened around a year ago. The applicant cannot turn his neck, and this has been occurring for about a year.
He does not know the specifics of the applicant’s injury. He complains how he injured himself at work. However, Mr Mussared cannot pinpoint a specific injury or if it was gradual. He is not sure what the applicant was doing at the time of the injury. He does not know if any first aid or medical assistance was provided.
The applicant did not mention a time of the injury or any witnesses. He was not requested to lodge a claim and does not know if a request was made to anyone else.
The applicant commonly complained about his shoulder and neck between February 2022 and February 2024. He said he could not turn his neck when he drove. He would say the applicant mainly complained about his neck or shoulder. Sometimes he will throw up transoms perfectly fine, then the next day he is really sore.
From February 2022, the applicant has been on and off when performing his normal duties. Recently, his work had been affected by getting an abscess cut out of his rectum.
The applicant has been on light duties for about a year. He is not sure of the cause.
The applicant is Brayden Webb’s brother-in-law. The applicant “hangs out” with Brayden and his sister a lot. They are a pretty tight family.
He would describe the applicant as one of the best scaffolders in the company. He knows what he is doing. He regularly operates safely. He calls about most things that are not safe on site. He often ceases working when he is hurt.

Medical evidence

IOH Health

On 14 February 2024, Dr Ameer Alhusuny recorded that the applicant presented with left shoulder and neck pain after lifting a 17kg roof. There was a previous injury two years ago to the left shoulder, “work-related (no management).”
Dr Alhusuny’s provisional diagnosis was left shoulder supraspinatus inflammation or bursitis.
On 15 February 2024, Mr Tristan Devitt, physiotherapist, recorded that two years ago the applicant was pulling 17kg at speed “and sudden jolt and pain L shoulder”. The applicant had self-managed it since then. He is right handed so he favoured the right side.
This week the applicant had been doing some overhead tasks at work and got sore again. This week was a bad week for pain. The applicant had an MRI yesterday “and had pain ++ and difficulty tolerating scan position.”
On 16 February 2024, Dr Alhusuny recorded that a call had been made to the applicant to discuss the MRI findings, “there is severe left C3/4 foraminal stenosis with impingement of the left C4 nerve root.” The applicant was to attend on Monday, rather than Wednesday, for further management.

Dr Ravi Kumar Cherukuri – neurosurgeon and spinal surgeon

Dr Cherukuri reported to Dr Alhusuny on 6 March 2024.
Dr Cherukuri recorded a history of injury two years ago. The applicant was pulling scaffolding when he jolted forward and developed neck pain radiating to the left shoulder. He could not work for two weeks. He was on site but could not carry out any physical work.
Following that, the applicant returned to work. He had occasional paraesthesia in the left arm and complained of numbness and weakness in the left hand. Although he continued to work, it hurt more now, and he could not reach towards the left side.
Dr Cherukuri noted that the MRI of the cervical spine showed spondylotic changes with left C3/4 foraminal stenosis, responsible for the left C3/4 radiculopathy.
The applicant had been referred for X-ray and CT of the cervical spine and left C3/4 periradicular injection. He appeared to have shoulder issues.
If there was no response following further investigations and interventions, the applicant may need to consider surgery. He would benefit from physiotherapy.
On 4 April 2024, Dr Cherukuri reported to Dr Alhusuny that the steroid injection did not help the applicant much.
The applicant was still suffering and finding it difficult to work with turning his neck to the left. He was desperate for any kind of relief.
Dr Cherukuri suggested that the only way forward was surgery, and the applicant would like to consider it. Dr Cherukuri therefore requested approval of EML for ACDF at C3/4.

Dr Stuart Jansen – upper limb and trauma surgeon

Dr Jansen recorded on 19 March 2024 that the applicant presented with left shoulder pain. “Scaffolding. Boating. MB Dirt bike.”
The applicant was pulling standards, reaching to hit the roof, and jolted his arm. “Injury 2 years ago. December.”
Dr Jansen reported to Dr Alhusuny.
Dr Jansen noted the applicant was a 30 year old right hand dominant scaffolder. He enjoys boating and motor bike riding. He was pulling standards two years ago, throwing them with his left arm and catching them with his right. He hit a roof with a standard and jolted his arm.
The applicant had shoulder pain at the time. He talked to his employer about the injury, and this was noted but not acted upon. He continued to have some worsening left shoulder and neck pain. This became worse in December, when the injury was reported. The applicant had been working light duties since his reported injury.
The applicant had superior shoulder pain, pain in bed, and pain with lifting. He found activities across his body painful and difficult. He also had shooting pain and intermittent paraesthesia radiating down to his hand.
Dr Kumar (Dr Cherukuri) had recommended that the applicant have a cortisone injection. He felt the applicant would require a surgical decompression. MRI showed significant AC joint distal clavicular osteolysis. There was severe left C3/4 foraminal [stenosis].
Dr Jansen opined that the applicant had two problems. He had significant left-sided radiculopathy and left-sided distal clavicular osteolysis. He wished to proceed with left shoulder arthroscopic AC joint resection.

Dr Rhys Haldane Gray – orthopaedic surgeon

Dr Gray was qualified by the respondent and reported on 29 April 2024.
Dr Gray recorded that the applicant was working full time with Skelwork as a forklift driver and labourer. He had been put off scaffolding for the last six weeks or so, being put on light duties by IOH.
The applicant said the work injury occurred on 8 February 2022. On questioning, he said he essentially made up that date, but the injury occurred “roughly about then.”
The applicant described undertaking normal duties in Bowral on a block of units. On elevating a 3 standard, its star hit the roof unexpectedly. This jarred the outer lower aspect of the left side of the neck with pain that spread, [the applicant] pointing to an area over the left deltoid. There was no direct blow to the neck or shoulder area.
The applicant immediately felt pain in both the left side of the neck and left deltoid, but could not recall whether there were pins and needles/paraesthesia. He was working with “Brayden”, who was fully aware of the incident.
The symptoms in the left side of the applicant’s neck and left shoulder continued, and he was unable to keep working. He sat down for one to two hours until the end of the shift.
The applicant acknowledged he did not report this situation straightaway. Dr Gray asked whether Mr Webb had reported it – “apparently he had not reported it at all at that stage.” The applicant told his boss, who said, “rest it”. He had no idea whether this was Marc or Matt, but it was “one of them.”
After work, the applicant was a passenger in a vehicle back to the base. He attended work the next day, but “didn’t do much”. He was basically on restricted duties, “just passing gear”. Most of the time he could not pass gear or “receive downwards”. He “sat there doing nothing”, and this lasted one to two weeks.
During this time, the applicant felt the neck and shoulder [sic: assumed to mean symptoms or pain] became more marked, but he did not seek any medical attention.
The applicant said the situation did not come to a head because he rolled his ankle three to four months later, and his boss said he could rest the shoulder with restricted duties related to the ankle injury. He could not explain the difference in time between his date of injury in February 2022 and the date of the ankle injury in 2023. He believed his boss did not want to accept the situation as a reported injury.
Dr Gray recorded a history that since February 2022, the applicant had generally taken his work “easy” and never returned to full normal duties. He was faster before the accident but towards the end of 2022 and during 2023, he essentially was doing his normal duties apart from the ankle situation.
Dr Gray questioned the applicant about this, in view of him saying he restricted his duties. The applicant said his shoulder and neck got a little better and he trained himself to avoid painful situations. On “stripping” a job, he had difficulty elevating his left upper limb above abdominal level, and this caused pain in the left scapular and deltoid areas. He did not carry as much gear on his shoulders because of left-sided neck and left scapular pain.
Despite this, the applicant said that during 2023 he coped with his symptoms and had told his boss multiple times that the shoulder was hurting. There had been no suggestion of referral to IOH or his own GP.
The applicant said that in 2024 the symptoms from his neck and left shoulder became more marked. He had modified his work but could not use the left arm properly, generally having to use his right arm.
In early 2024, the applicant became fed up with his bosses and wanted something done about his left shoulder. He wanted out of the Skelwork job but was unable to apply for or obtain another job because of the continuing symptoms in his neck and left shoulder – “the shoulder and neck have to be fixed up.”
The applicant finally insisted on attending IOH and saw Dr Ameer (Dr Alhusuny). He found that the top of his left shoulder was tender and there was burning in the neck when he carried scaffolding. He could not get another job because he was carrying this injury.
After attending IOH, the applicant was put off work and MRI of the neck and shoulder was recommended in February 2024. He was given no medication but advised to attend physiotherapy and referred to Drs Jansen and Cherukuri.
The applicant had an injection into the left side of his neck, which made all the symptoms immediately worse, without early or immediate relief from the local anaesthetic.
Subsequently, the applicant had had difficulty rotating his neck, with a burning feeling at the back of the neck, buzzing in the neck, tingling over the outer left forearm, and a feeling of hair sticking up on the left arm. There was no change in the specific neck and left shoulder symptoms.
The applicant was working full-time on restricted duties, with a weight limit of 3kg in the left arm. There is no important work implement that weighs less than 3kg. Over a month, his shoulder had improved somewhat, as he was not using it, but his neck was worse since the injection.
Before the injection, the applicant had pain on the left side of the neck, particularly with rotation to the right and left, but this was now worse, with a stabbing pain in the left side of the neck.
The applicant has difficulty rolling onto the left side, which awakens him. Fishing had been out in the last month, but had been satisfactory until then, although he said he was planning to go out this weekend. He had sold his bike.
The applicant continued to take an antidepressant and Nexium, but no analgesics or
anti-inflammatory.
Dr Gray had reviewed the factual material. He noted there appeared to be no statement from “Brayden”, whom the applicant implied was aware of the incident. He found no obvious manifestation of an “unstable personality”, while noting some inconsistencies between the history and the documentation.
Dr Gray asked the applicant why he had not “followed the normal procedure” in reporting his neck/shoulder injury, as he had with his ankle injury. The applicant said he reported the ankle injury normally because it was obviously swollen and he could not walk properly. “[H]e had no answer for the lack of formal reporting of the neck/shoulder incident, at the time of that injury.”
The applicant said his bosses did not want him to put in a workers’ compensation report in February 2022, as it would cost them a lot of money. After this, he did not bother following it up until recently.
The applicant was asked about the Tik Tok videos. He said the date on which the video of him fishing was posted was September 2023. It may have referred to sometime earlier, but in any event, he had been fishing at that stage. He had been using his right arm to lift the sledgehammer, and the “burnout” was six years ago.
Dr Gray opined that the applicant has symptoms and signs of cervical nerve root compromise, isolated at C3/4 on the left. The clinical evidence for this being related to the alleged episode in February 2022 is quite tenuous. Dr Gray opined that on the balance of probabilities, the applicant’s cervical spine condition is constitutional in origin, without clearcut reference to work injury or activity, on the history currently documented.
Dr Gray found no significant shoulder pathology, with the applicant’s left shoulder symptoms probably reflecting radicular symptoms and probably exacerbating left AC degenerative changes of constitutional origin.
Dr Gray opined there was “nil” reasonably necessary medical treatment with regard to the consequences of the applicant’s employment. From a clinical aspect, “consideration” of ACDF at C3/4, as per Dr Cherukuri’s report of 4 April 2024; and re-assessment of the applicant’s left shoulder condition post-discectomy.
Dr Gray went on to say that, with the applicant’s pattern of cervical symptoms and signs, radiation of symptoms, and specific MRI evidence of left C4 compromise, the surgery proposed by Dr Cherukuri is reasonably necessary.
Dr Gray opined there were no effects on the applicant’s left shoulder from the incident on 8 February 2022. If there had been any effect, it had resolved, with continuing left shoulder symptoms probably from exacerbation from radicular component from the cervical spine.
Dr Gray was asked if he had any other comments, to which he responded, “Perhaps a statement from his work mate on 08/02/2022, might be indicated.”

Dr Charles H New – orthopaedic and spinal surgeon

Dr New was qualified by the applicant and reported on 22 October 2024.
Dr New recorded a history that on 8 February 2022, the applicant was moving a heavy piece of scaffolding, approximately 3m long, through the lower area of a roof, when it caught on a roof truss, causing a jolting sensation. The applicant had to drop the scaffolding and fell forward onto the wooden truss of the roofing, sustaining an injury to his left shoulder and neck.
The applicant stayed at the site but was not able to continue with his duties to the fullest extent. He reported the injury to the employer.
The applicant did not have any leave but could not complete his general duties for a number of weeks and was not carrying out physical work. He noticed his left shoulder and neck pain was increasing.
The applicant continued working throughout 2022. He had occasional dysaesthesia and hypoesthesia in his left arm over his upper arm above the elbow. The pain was exacerbated by pulling heavy loads. The applicant’s sleep was also disrupted.
On 24 January 2023, the applicant sustained an injury to his right ankle. Due to this injury, he had approximately eight months off work, and his shoulder and neck symptoms slightly improved. However, on returning to full duties in August 2023, his left shoulder and neck pain rapidly deteriorated, particularly with heavy lifting.
Dr New has recorded the history of the applicant’s treatment and investigations. He noted that Dr Cherukuri had opined that the applicant requires a C3/4 ACDF. His shoulder surgeon had recommended a left shoulder arthroscopic AC joint resection.
The applicant had pain over his left cervical spine and shoulder. He described the pain as an aching, burning sensation, with pins and needles into his shoulder, exacerbated by changing positions, coughing, sneezing, lifting, and bending.
The applicant finds it difficult to left weights greater than 5kg at work and relies on his right hand.
Dr New opined that the applicant has C3/4 lateral stenosis, left side, which is consistent with his neurological examination and symptoms of C4 radiculopathy. There is a relationship between the condition and the examination as a result of injuries sustained on 8 February 2022.
Dr New further opined that the applicant’s employment was a substantial contributing factor to his conditions. The nature and conditions of heavy lifting, and the accident described is “certainly” consistent with his clinical presentation and history, noting he has no pre-history.
Dr New opined that the applicant’s symptoms are bad enough to consider the C3/4 ACDF. He concurred that the left shoulder arthroscopic AC joint resection recommended by Dr Jansen was reasonably necessary.
Dr New did not comment on the SureFact Group report, commenting only that the applicant has been able to return to work, albeit in significant discomfort.

SUBMISSIONS

The submissions have been recorded, and a transcript is available. I will therefore summarise the submissions.

Applicant

The applicant submitted he has never tried to isolate a particular date of injury. He has only tried to inform me and the respondent of where he believes the injury occurred. All I am to do is to look at the evidence and work out on the balance of probabilities whether the applicant had an injury at work.
The applicant submitted his evidence as to where the injury occurred was given a couple or three years after the event. It was fairly persuasive evidence that he had narrowed it down as he had.
The applicant referred to the SMS messages between him and Mr Forner. The applicant “goes into chapter and verse”. It did not appear to be made up, fraudulent, or even mistaken.
The applicant referred to his evidence and that of Mr Webb regarding what occurred on the date of the injury. In the absence of putting to Mr Webb that he was wrong, or lying, his is “pretty powerful corroborative evidence”. The applicant referred to the High Court decision of Papakosmas v R.[2]
[2] [1999] HCA 37; 196 CLR 297.
This was a very recent, very early, complaint. Mr Webb noticed something on the applicant’s head. The applicant referred to Department of Education and Training v Ireland[3] and Sampco Pty Limited v Wurth[4] with respect to the importance of early complaints.
[3] [2008] NSWWCCPD 134.
[4] [2015] NSWCA 117.

The applicant submitted Mr Webb’s evidence is not in isolation. He referred to the evidence of Ms Rigon and Ms Hargrave.
The applicant submitted that if he was making this up, it made little sense that he would not have made some sort of complaint at the time. He had a significant injury, was told by his boss to get back to work, and he did.
The applicant submitted his evidence of ongoing issues is corroborated by Mr Webb. It was significant that people noticed. There is no other real explanation as to why these problems suddenly came on after he says the injury occurred.
The applicant submitted I only need to make a finding that he was injured on or about
8 February 2022 or on or about 22 March 2022, noting a lot of contemporaneous complaints and people seeing him complaining from that time.
The applicant submitted it is far more likely he would remember the event than would Mr Forner or Mr Leggett. The applicant does not recall to whom he reported it. It was entirely possible that either or both had forgotten the conversation. It is possible they did not report the incident because they did not think it was necessary and thought the injury would heal.
The applicant submitted his evidence that Mr Forner or Mr Leggett would lodge a claim if they deemed it necessary is important. He submitted that Mr Mussared’s evidence supported that there was an evaluative process by the respondent in relation to injuries.
The applicant submitted it was open to me to find that he honestly believes he reported the injury, but did not, but the evidence supports the opposite. It could be that the respondent innocently or intentionally did not report it. The applicant referred to his evidence of other instances where injuries were not reported, and the evidence of Mr Christiansen.
The applicant relied on the medical evidence mainly for matters relating to history.
The applicant submitted this is simply a case that, for whatever reason, there is no contemporaneous note of the precise date and there is an opportunistic denial, saying that the applicant cannot win because he cannot establish the precise date, and it would be guesswork. He submitted I just have to find there was an injury on or about the date alleged, on the balance of probabilities.
The applicant submitted that, to the extent anyone was said to be lying, that finding was not available in the absence of cross-examination.[5]
[5] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Finney Pty Limited t/as Cut Price Car Rentals v Chequer [2021] NSWPICPD 13.
The applicant submitted the problem with Dr Gray’s opinion is that he does not accept that any injury occurred. That has impacted what he says. It would make more sense to say the applicant has a constitutional condition if he was 50 or 60, or if I were to find he had no symptoms after this event. That would be very hard to find in light of the evidence from Mr Webb, Ms Rigon, Ms Hargrave, and Mr Mussared, remembering that Mr Webb and Mr Mussared are employee witnesses. They have nothing to gain by their evidence.
The applicant submitted Mr Webb and Mr Mussared would want to tell the truth as they would otherwise be at significant risk of being terminated for lying, although unusually, the respondent says the applicant is a liar but is happy to keep employing him, despite him apparently being a terrible person.
The applicant further submitted that Dr Gray did not consider whether, even if he had a constitutional condition, it could have been aggravated by this incident. Dr New accepts the history and finds injury, as do Drs Cherukuri and Jansen.
The applicant submitted a frank injury may be as simple as a soft tissue injury or bruise – Galluzzo v Commonwealth Bank of Australia.[6] The applicant had a lump on the head, to at least satisfy that.
[6] [2014] NSWWCCPD 82.
In reply to the respondent, the applicant submitted I was being asked to make credit findings without putting those findings to the witnesses.
The applicant submitted that, in the absence of finding the witnesses were lying, or some other reason as to why they have positive evidence to give about something that happened at work, it is difficult to reject their evidence. In particular, Mr Webb has given evidence of a bump and a contemporaneous complaint. The applicant’s mother said she was told on the day.
The applicant submitted I would have to find these people were lying, citing State of New South Wales v Hunt.[7]
[7] [2014] NSWCA 47.
The applicant submitted it was quite serious to say he is so unstable that he either intentionally concocted this story or unintentionally made it up. There is nothing about the evidence that would suggest that either the applicant or Mr Webb made this story up.
The applicant submitted that, contrary to the respondent’s submission, “there is a heap of” contemporaneous evidence. There is insufficient evidence to reject the independent witnesses.
The applicant submitted that, if he made this story up, then it did not make sense that he did not put in a claim form. The applicant has consistently said he does not recall the date, but he has consistently said Moss Vale, when in fact it was Moss Vale Road, Bowral.
The applicant submitted this was not unlike what happened in Dent v Calcagno[8]. The applicant has always said where the injury occurred, one way or the other. He has done his best and pinpointed it to a pretty good degree when he was provided with the evidence, and backed it up with contemporaneous evidence from Mr Webb, who has not been contradicted.
[8] [2016] NSWCA 289.
The applicant submitted that Humphrey v Woolworths Group Limited[9] (cited by the respondent) may be distinguished because in this case Mr Webb, Ms Rigon and Ms Hargrave provided contemporaneous evidence. They all say the applicant complained straight away.
[9] [2024] NSWPIC 218 (Humphrey).
The applicant’s evidence is that the injury did not seem so significant at the time, he kept working but did not do the physical duties.
The applicant submitted the Tik Tok videos are of little relevance to an incident or accident that occurred two years earlier. No doctor has said they show the applicant was not injured.

Respondent

The respondent referred to my decision in Humphrey.
The respondent submitted the applicant cannot prove if or when he injured himself on the evidence before me. It is the applicant’s claim and onus, and he must prove that a frank injury occurred on a date with some precision. He cannot do that in this case.
The respondent submitted Mr Forner’s evidence painted a picture of an applicant with a track record of being unstable. It is this instability that permeates through his ability to prove whether or not he suffered an injury. He is an individual who is unstable, rather than a liar.
The respondent did not embrace Mr Forner’s opinion that the applicant is the biggest liar he has ever met, but his evidence was informed by the other aspects of his evidence.
The respondent submitted it is of some importance that the applicant worked as a cleaner at Novotel between September 2021 and April 2022, which is precisely within the period pleaded.
The respondent submitted the applicant was aware at least in 2023 that he had suffered some kind of injury, but he did not, for reasons unknown, report it until 14 February 2024. It was the first of 150 [sic: 50] claims that the respondent disputed.
The respondent submitted that, on the applicant’s own evidence, the date of 8 February 2022 “goes out the window”, and that is confirmed by the payslips and timesheets.
The respondent submitted the applicant was guessing as to when or if he suffered injury in circumstances where there is a total lack of contemporaneous records. The applicant cannot discharge his onus of proof.
The respondent queried how the applicant could have any recollection of this incident, owing to his personal issues and the passage of time. He was simply using secondary records to narrow a date down.
The respondent submitted there was no real explanation why the applicant waited two years to make a claim, and more than three years later brought proceedings asserting to have injured himself on a date he is not sure about, while working as a cleaner in concurrent employment.
The respondent submitted the applicant spent the least amount of time at Moss Vale Road on 22 March 2022, and then went to two other jobs, continuing to work on 24 March 2022, 25 March 2022, 4 April 2022 and 5 April 2022. The records do not reflect a person who got injured at work, but a person who continued to work and did not suffer injury, at least around the period pleaded.
The respondent submitted the applicant may have suffered an injury, it may or may not have been in the course of employment, but the evidence does not prove he suffered injury around 22 March 2022 or 8 February 2022.
The respondent submitted Mr Webb accepted what the applicant told him. He did not see the applicant get injured. His evidence and that of the applicant’s mother “really takes us nowhere” in proving that the injury occurred, least of all around the time pleaded. Mr Webb is doing exactly what the applicant has done and just guessing.
The respondent submitted the applicant telling people he got injured does not prove he actually was injured, nor does it prove he was injured around the dates he has pleaded.
The respondent submitted the applicant had no hesitation in making a claim for his right ankle injury. It is impossible to understand why he did not report the subject injuries contemporaneously. At the time he made the claim for his ankle, on his evidence, he had been struggling with his shoulder and neck but did not have treatment.
The respondent submitted that if the injury occurred in February, surely Mr Webb would remember it occurred in February. If the applicant told his mother the same day, he would be able to find a record of the call.
The respondent submitted there was evidence the applicant went fishing and motorbike riding. The respondent cannot prove they caused his injury, but the applicant cannot prove employment caused it either.
The respondent submitted employment was not a substantial contributing factor to the injury because the applicant cannot discharge his onus. It referred to the GP’s records. It submitted I would find the surgeries are not as a result of the injury.
The respondent referred to the history recorded by Dr Cherukuri that the applicant could not work for two weeks after the injury, submitting that the applicant worked for months thereafter. (I note here that what Dr Cherukuri actually recorded was, “He could not work for 2 weeks, although he was on site but could not carry out any physical work.” That accords with the applicant’s evidence and that of other witnesses).
The respondent submitted there is no doubt the applicant has pathology, but for him to prove the proposed treatment is as a result of the injury is “a stretch too far.”
The respondent submitted Dr Cherukuri misunderstood the mechanism of injury, which was inconsistent with the applicant’s statement. The applicant may have been referring to a different incident. The evidence is so muddled and confusing that the applicant cannot discharge his onus of proof. Dr Cherukuri made no attempt to address causation, and he is the doctor who proposes the surgery.
It is in this context that the respondent submitted Dr Gray’s evidence takes on great significance. Dr New did not attempt to make any significant attempt to address causation.
The respondent submitted the case is glaringly similar to Humphrey.
The respondent referred to the Tik Tok videos, which it submitted showed the applicant doing things that do not reflect a person who has suffered any injury. The respondent submitted that “not much turns on them”, apart from supporting its case that it weighs against a finding of injury.
The respondent also referred to the desktop surveillance, which it submitted shows the applicant going about his life.
The respondent submitted Dr Gray’s report is the only one that has been prepared in a fair climate.
The respondent finally submitted there should be an award in its favour.

SUMMARY

The applicant claims to have sustained injury to his neck and left shoulder, either on or about 8 February 2022, or on or about 22 March 2022.
I am satisfied that the evidence establishes that the applicant was not in fact working for the respondent on or about 8 February 2022, so the injury could not have occurred at that time.
It was only after the applicant was able to review records placed in evidence by the respondent at a late stage of the proceedings that he and his legal advisers came to the view that the more likely date of injury was on or about 22 March 2022.
I do not accept the respondent’s submission that the applicant cannot meet his onus if he is unable to establish the precise date on which the injury occurred. It is hardly novel for workers to plead an imprecise date of injury where they are unsure of the exact date and where, as here, there is no contemporaneous written record of the injury.
The applicant needs to establish on the balance of probabilities that he has sustained injury arising out of or in the course of his employment, to which employment was a substantial contributing factor.
I also do not accept the submission that there is no contemporaneous evidence to support the applicant’s allegation of injury.
The applicant has said that the injury occurred at Moss Vale. In fact, on 22 March 2022, and other dates at about that time, he was working at Moss Vale Road, Bowral. The two towns are not far apart.
When the applicant tried to obtain details from the respondent about the injury, he asked Mr Forner about a job site in Bowral and gave details about the unit on which he was working when the injury occurred, and with whom he was working. He was, however, unable to pinpoint the date of the injury.
The applicant’s evidence is that, when the injury occurred, there was a huge bang, and he was yelling and swearing.
Mr Webb was also unsure of the date of the injury, but thought 8 February 2022, which was the date provided to him by the applicant, “seems about right”. He did not see the accident but heard a loud scream and a lot of swearing from the applicant. He added that he noticed the applicant had physical injuries, that is a lump on his head and a scratch on his arm; and was clearly in pain and discomfort. Mr Hargrave told him what had happened.
Mr Webb has given evidence about the applicant’s struggle to work after the accident.
Ms Rigon has given evidence that the applicant called her on the day of the accident to tell her about it. She does not purport to know the exact date, but in September 2024, she said it was about 2.5 years ago, and the applicant had told her it was on 8 February 2022.
Ms Hargrave also does not purport to know the exact date of the accident, but in May 2025, she said it was about three years ago. The applicant had told her it was in February 2022. The applicant had complained about his neck and shoulder, and she had observed him grabbing his shoulder or rubbing his neck.
None of these witnesses has been cross-examined on his or her evidence, although Mr Webb attended under summons before being excused.
The applicant referred to the decision in Hunt. At [32] – [33], Leeming JA (Barrett JA agreeing) said:
“In Kuhl v Zurich Financial Services Australia Ltd, a majority of the High Court (Heydon, Crennan and Bell JJ) considered a trial judge’s finding that a party-witness was reluctant to say what had happened. Their Honours said that it amounted to a conclusion that the witness was deliberately failing to comply with the duty to tell the whole truth: at [62]. Their Honours said that two conditions needed to be satisfied before such a criticism could be made by a judge in circumstances where it was crucial to the dismissal of the claim:
‘First, reasons must be given for concluding that the truth has been deliberately withheld. Secondly, the party-witness must have been given an opportunity to deal with the criticism.’
Both those conditions were applicable to the present case. The finding of fabrication of the terms of the initial conversation and the threat amounted to something even more serious than the finding of reluctance in Kuhl. Rather than merely failing to comply with the duty to tell the whole truth, it was, expressly, a finding of conscious untruth. It was a finding capable of amounting to a conclusion of perjury, and with serious professional consequences for Senior Constable Ochs. The gravity of such a finding against a police officer cannot be overstated.” (Citation omitted).
Mr Webb and the applicant are friends as well as colleagues, and Mr Webb is “dating” the applicant’s sister. It is hardly an unusual situation for colleagues to also be friends and to socialise outside work.
As the applicant submitted, neither Mr Webb nor Mr Mussared has anything to gain by their evidence. Each is still employed by the respondent, as is the applicant, notwithstanding the low opinion the respondent apparently has of his character This is perhaps because, according to Mr Mussared, he is one of its best scaffolders. Mr Hargrave was also re-employed after leaving Skelwork, and has been made a permanent employee, despite his alleged character flaws.
The respondent submitted that Mr Webb accepted what the applicant told him and did not see the accident. Mr Webb conceded he did not see the accident. He has given evidence of what he heard and observed, including that the applicant had physical signs of injury.
It is correct, as the respondent submitted, that the applicant telling people he was injured does not prove he was injured, or that he was injured at around the dates he has pleaded.
However, as I have noted, no application to cross-examine the applicant’s lay witnesses was made and nor was there any application to cross-examine the applicant. The respondent properly did not submit that Mr Webb, Ms Rigon or Ms Hargrave had fabricated their evidence.
I accept the evidence of the applicant, Mr Webb, Ms Rigon, and Ms Hargrave. I am satisfied on the balance of probabilities that Mr Hargrave did sustain injury to his neck and left shoulder, arising out of or in the course of his employment, and the date of the injury was on or about 22 March 2022.
I also accept that employment was a substantial contributing factor to the injury. There are no competing factors. I do not accept Dr Gray’s opinion that the applicant’s condition is constitutional. There is no evidence to suggest the applicant was injured in a motorcycle accident or anywhere else, despite Mr Forner’s speculation.
I believe it is likely that the applicant did mention the injury to either Mr Forner or Mr Leggett. I make no finding that either or both discouraged Mr Hargrave from making a formal claim. In the absence of any issue as to “notice” and “claim”, it is unnecessary to come to a definite conclusion on this aspect of the matter.
I accept the evidence of Drs Jansen, Cherukuri, and New over that of Dr Gray.
Dr Gray had access to the applicant’s statement, and those of Mr Forner and Mr Leggett, and the factual investigation dated 15 March 2024. He was not at a later stage provided with the evidence of Mr Webb, Ms Rigon, and Ms Hargrave. He in fact suggested that a statement be obtained from Mr Webb.
As the applicant submitted, Dr Gray did not accept that an injury occurred, and did not consider whether the applicant, who is still only 32, may have sustained aggravation of the constitutional condition from which Dr Gray opined he suffers. It is possible Dr Gray may have come to a different conclusion had he been provided with the applicant’s lay evidence, but that of course is speculation.
I have viewed the Tik Tok videos and reviewed the desktop surveillance. The respondent submitted that “not much turns on them”, and neither Dr Gray nor Dr New disagreed with this. They do not assist in determining the matter.

The decision in Humphrey may be distinguished. Mr Humphrey had sustained an injury to his back whilst at home, some days before the injury he claimed to have sustained at work. The histories Mr Humphrey provided to medical practitioners was inconsistent, and his statement evidence was inconsistent with his claim form. There was a discrepancy between the evidence of Mr Humphrey and his nominated witness to the injury. He did not initially say he had reported the injury to that witness.
The respondent has quoted from my decision in Humphrey that I found several aspects of the claim troubling, which was due to the contemporaneous evidence. However, I went on to discuss the contemporaneous medical evidence, which, as I have said, was inconsistent with Mr Humphrey’s evidence.
The respondent did not submit that the cervical surgery recommended by Dr Cherukuri is not reasonably necessary medical treatment, and indeed Dr Gray agrees with Dr Cherukuri’s recommendation. The issue in dispute was in effect one of causation.
In Flying Solo Properties Pty Ltd t/as Artee Signs v Collet[10], Roche DP said, (at [74] – [75]):
“However, s 59A(3) will be relevant when Mr Collet ceases work to have the recommended surgery to his cervical spine. Obviously, Mr Collet will be unable to work while he has the surgery, or while he is recovering from it. Thus, for a period, he will have no current work capacity. As the Commission has determined that the surgery is reasonably necessary treatment as a result of his work injury, when Mr Collet ceases work for the surgery, he will ‘become entitled to weekly payments of compensation’. There is no scope for a contrary argument. As a result, his entitlement to compensation under Div 3 will revive ‘but only in respect of any treatment, service or assistance given or provided during a period in respect of which weekly payments are payable to [him]’ (s 59A(3)). That is, while he is having, and recovering from, the surgery.
As that is in the future, and as it is not known how long that period will be, it is not possible to make any finding or order in advance. However, it should be clearly understood that the fact that the time off work for the surgery will result in Mr Collet being entitled to weekly compensation will also entitle him to compensation under Div 3 for the cost of the surgery. In these circumstances, though the Commission cannot currently order the payment of the cost of surgery, the insurer will have an obligation to meet that cost. I fully expect the insurer to meet that cost without the need for further proceedings in the Commission. A failure to do so would be, in the circumstances of this case, a most serious breach of the insurer’s statutory obligations.”
[10] [2015] NSWWCCPD 14.
I make the following findings:
(a)    on or about 22 March 2022, the applicant sustained injury to his neck and left shoulder, arising out of or in the course of his employment with the respondent;
(b)    the applicant’s employment was a substantial contributing factor to the injury;
(c)    the proposed medical treatment, that is ACDF at C3/4, as recommended by
Dr Cherukuri, is reasonably necessary as a result of the injury, and
(d) the applicant is entitled to a general order for medical and related treatment to his left shoulder, pursuant to s 60 of the 1987 Act, subject to the restrictions imposed by s 59A of the 1987 Act.
The determinations are set out in the Certificate of Determination.

[2025] NSWPIC 488

17 September 2025