Humphrey v Woolworths Group Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Humphrey v Woolworths Group Limited [2024] NSWPIC 218
APPLICANT:	Mark John Humphrey
RESPONDENT:	Woolworths Limited
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	30 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits and medical expenses in respect of injury to the lumbar spine; injury in dispute; applicant sustained injury at home four days prior to alleged injury; lack of contemporaneous history of injury to hospital, general practitioner, or physiotherapist; conflicting claim forms; applicant had made prior claims for injury to his lumbar spine and other injuries; consideration of Davis v Council of the City of Wagga Wagga, Mason v Demasi, and Nguyen v Cosmopolitan Homes; Held – the applicant did not establish injury on the balance of probabilities; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mark John Humphrey (Mr Humphrey) was employed by the respondent, Woolworths Limited (Woolworths), as a shop assistant.
Mr Humphrey claims to have sustained numerous injuries to his lower back/lumbar spine, none of which resulted in him being unable to work, while employed by the respondent; and an injury to his lumbar spine on 28 May 2022, due to which he became incapacitated for work.
The applicant completed a Worker’s Injury Claim Form (the first claim form) on 10 June 2022.
The date of the injury, to the lower back, was recorded as 24 May 2022. It occurred at “home”. The applicant was “sitting of [sic] chair and chair broken landed on my butt.” He had had “same injury over the years.”
The applicant had ceased work on 28 May 2022, and reported the injury to Andy Rogers, store manager, on 31 May 2022. He had had other such injuries or conditions, “Yes Woolworths September 2021 plus other times reported.”
The reason given by the applicant for the delay in reporting the injury was “Workers comp is stressful didn’t want the extra stress had injury many times before thought it would come good quicker.”
On 8 July 2022, Employers Mutual Limited (EML), acting as claims agent for the respondent, issued the applicant with a notice pursuant to s 287A of the Workplace Injury and Workers Compensation Act 1998 (the 1998 Act).
This notice was apparently in response to a request on 27 June 2022 that EML review a decision on 17 June 2022 to dispute liability for the applicant’s claim, although neither the notice nor the request for review is in evidence.
EML advised the applicant that its decision to decline his claim had been upheld.
EML disputed that the applicant had sustained injury; that employment was a substantial contributing factor to any injury; that he had any incapacity for work as a result of a workplace injury; and that medical treatment was reasonably necessary as a result of a workplace injury.
The applicant completed a further Worker’s Injury Claim Form (the second claim form) on 3 August 2022.
The date of injury was stated to be 28 May 2022. The applicant was lifting a box of vegetables in the cool room and injured his lower back. He ceased work that day.
The applicant stated that he reported the injury on 28 May 2022 to Josh Hines [sic: Hinze], who was “2IC Produce”. He had had “ongoing back injuries with my employer since approximately 17 July 1998.”
The applicant had returned to work on 29 May 2022, “but had to leave halfway through and have been certified with no capacity since.”
By letter dated 3 August 2022, the applicant’s solicitors made on his behalf a claim for weekly benefits pursuant to ss 36, 37, 38 and/or 40 of the Workers Compensation Act 1987 (the 1987 Act), at the rate of $1,152 per week from 28 May 2022; and the expenses of CT of the lumbar spine, pursuant to s 60 of the 1987 Act.
On 31 August 2022, EML issued the applicant with a notice pursuant to s 78 of the 1998 Act.
EML disputed that the applicant had sustained injury; that employment was a substantial contributing factor to any injury; that employment was the main contributing factor to the aggravation, acceleration, exacerbation, or deterioration of any disease or condition; that the applicant had any incapacity for work as a result of a workplace injury; that medical treatment was reasonably necessary as a result of a workplace injury; and that the applicant had any permanent impairment due to injury arising out of or in the course of employment with the respondent.
By letter dated 11 May 2023, the applicant’s solicitors made on his behalf a request that EML review its decision.
On 25 July 2023, EML issued the applicant with a further notice pursuant to s 287A of the 1998 Act. It advised that its decision to decline his claim had been upheld. This notice was absent any reference to s 4(b)(ii) of the 1987 Act.
The applicant lodged an Application to Resolve a Dispute (the Application) on 8 December 2023.
The applicant claimed to have sustained injury to his lower back/lumbar spine as follows:
(a)     17 July 1998: lifting crates of milk from a steel holder (s 4(a) of the 1987 Act);
(b)     27 March 2010: twisting in the process of carrying a box of produce above his head (s 4(a) of the 1987 Act);
(c)     13 July 2013: unloading a pallet while lifting boxes of stock (s 4(a) of the 1987 Act);
(d)     30 November 2013: unloading a pallet of produce (s 4(a) of the 1987 Act);
(e)     7 November 2015: slipping on a lettuce leaf and falling onto the concrete floor (s 4(a) of the 1987 Act);
(f)      10 August 2017: unloading a pallet of produce (s 4(a) of the 1987 Act);
(g)     19 August 2018: unloading a pallet of produce (s 4(a) of the 1987 Act);
(h)     20 March 2020: slipping on a puddle of water that had pooled in the cool room, falling and impacting the concrete floor (s 4(a) of the 1987 Act);
(i)      2 August 2020: aggravation as a result of standing and frequently bending for a prolonged period while working at the checkout (s 4(b)(ii) of the 1987 Act);
(j)      6 August 2021: aggravation as a result of standing and frequently bending for a prolonged period while working at the checkout (s 4(b)(ii) of the 1987 Act), and
(k)     28 May 2022, while in the process of lifting and moving heavy boxes of produce (s 4(a) of the 1987 Act).
The Application claimed that none of the injuries listed above at (a) to (j) resulted in the applicant being unable to work. Due to the injury on 28 May 2022, he became first totally incapacitated, and later partially incapacitated.
The applicant claimed weekly benefits compensation from 29 May 2022 to date and continuing. The Application was amended at the preliminary conference to claim a general order for medical expenses pursuant to s 60 of the 1987 Act.
The respondent lodged its Reply on 9 January 2024.

ISSUES FOR DETERMINATION

The parties agreed that the following issues remained in dispute:
(a) whether the applicant has sustained injury; whether employment was a substantial contributing factor to any injury; whether employment was the main contributing factor to any injury; whether the applicant is incapacitated for work as a result of a workplace injury; and whether medical treatment is reasonably necessary as a result of a workplace injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation/arbitration hearing on 9 April 2024 on the Teams platform. Mr Stephen Hickey of counsel appeared for the applicant, instructed by Mr Grady and Mr Daley. Ms Goodman of counsel, instructed by Ms Harvey, appeared for the respondent. The applicant was present. Mr Amprimo of EML also attended.
The parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) were $1,083.77 per week.
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 (the Commission) and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents, filed by the respondent, dated 3 April 2024 and attached documents.

Oral evidence

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

FINDINGS AND REASONS

Evidence of the applicant, Mark John Humphrey

The applicant’s statement is dated 16 November 2022.
He commenced employment with Woolworths in May 1997, as a shop assistant. For the past twenty years he had been working 38 hours every week. He had not attended work since being certified as totally incapacitated following his injury on 28 May 2022.
In 2009, while employed at Woolworths, he suffered an inguinal hernia injury. This was the subject of a workers compensation claim, resulting in corrective surgery being performed.
In 2011, while employed at Woolworths, he suffered an umbilical hernia injury. This was the subject of a claim and was addressed by surgery.
In 2011, while employed at Woolworths, he suffered a laceration to his right foot from falling knives. This was the subject of a claim and was resolved with attendance at the hospital for stitches and about one week off work.
In 2020, while employed at Woolworths, he suffered an injury to his right knee as a result of a fall. This was the subject of a claim and resulted in one month of weekly compensation and physiotherapy.
On 17 July 1998, he was lifting crates of milk from a steel holder. While he was lifting one of the top crates, he felt a sudden pain in his lower back. He filed an injury report form and treated the injury with analgesics and rest. He took no time off work.
On 27 March 2010, he was carrying a box of produce, weighing about 10kg, above his head. As he attempted to navigate a corner between the pallets, he twisted his lower back and immediately felt pain. He filed an injury report form and treated his back with analgesics and rest. He took no time off work.
On 13 July 2013, he was lifting boxes of stock weighing up to about 10kg. He felt pain in his lower back. He filed an injury report form and treated the injury with analgesics and rest. He took no time off work.
On 30 November 2013, he was unloading a pallet of produce when he felt pain in his lower back and left shoulder. He filed an injury report form and treated the injury with analgesics and rest. He took no time off work.
On 7 November 2015, he was storing a box of lettuce when the box broke. He then slipped on a lettuce leaf, falling and impacting the concrete floor while still holding the 10kg box of lettuce, injuring his lower back. He filed an injury report form and treated the injury with analgesics and rest. He took no time off work.
On 10 August 2017, he was unloading a pallet of produce, which was in boxes weighing up to about 15kg, when he felt pain in his lower back. He filed an injury report form and treated the injury with analgesics and rest. He took no time off work.
On 19 August 2018, he was unloading a pallet of produce, which was in boxes weighing up to about 15kg, when he felt pain in his lower back. He filed an injury report form and treated the injury with analgesics and rest. He took no time off work.
On 20 March 2020, he was pulling a pallet of produce, using a pallet jack, down a hallway to the cool room. Due to a leak in the roof, a puddle of water had formed on the floor. He slipped on the water, impacting the concrete floor and injuring his lower back and groin. He filed an injury report form and treated the injury with analgesics and rest. He took no time off work.
On 2 August 2020, he stood at the checkouts for one to two hours before experiencing significant pain in his lower back. This was especially painful, as he was required to constantly bend to reach into bags, being six feet tall. He filed an injury report form and treated the injury with analgesics and rest. He took no time off work.
On 6 August 2021, he was again standing at the checkout, for two periods of one to two hours each, causing pain in his lower back. He filed an injury report form and treated the injury with analgesics and physiotherapy, which Woolworths arranged with Ms Carly Fraser, for six sessions. He took no time off work.
On 24 May 2022, he was at home, working on his car. He was also looking after his son, who was home from school with a stomach flu.
He took a seat to rest, and twisted on the chair, dropping a screw that he had been holding. As he leant sideways to pick up the screw, the leg of the chair snapped, and he landed on the concrete.
He experienced very minimal pain from the incident, about a severity of 1 or 2 out of 10.
The following day, 25 May 2022, he was unable to return to work, having contracted symptoms of flu. However, he returned to work on 26 May 2022 and 27 May 2022, performing his regular duties without issue, the minor pain from this incident having fully resolved.
He noted that all of the injuries, “in addition to the injury to follow”, were to the same area of his lower back, being the centre of his lumbar spine, slightly above his tailbone.
On 28 May 2022, at about 5am, he was cleaning the cool room, moving boxes of broccoli and cabbage from the ground onto a stack of about chest height. Each box weighed between 8kg and 10kg.
As he lifted a box, raising it to place it on top of the stack, he felt sudden pain in his lower back, of a severity of about 8 to 9 out of 10. He attempted to continue working, but significant pain persisted, and he was required to leave work at about 7.00am, rather than his usual finishing time at 3.00pm.
He verbally reported the injury to the manager of the produce section that day, Mr Joshua Hinze. Once home, he attempted to treat his injury with analgesics and rest.
On 29 May 2022, he was required to return home after three hours of work, out of the seven hours he was rostered to perform, as the pain in his lower back remained constant and severe. He again verbally reported the pain to Mr Hinze.
On 31 May 2022, the pain had become so unbearable that he attended Casino Hospital (Casino Memorial Hospital – CMH). He was provided with a medical certificate for one week off work.
On 7 June 2022, he was to return to work, but his pain was still unbearably severe. He returned to CMH but was told to make an appointment with his general practitioner (GP), Dr Aldo Castagna. He made this appointment for 17 June 2022, the earliest available. He was certified as totally incapacitated in the interim.
From 10 June 2022, he commenced physiotherapy with Mr Henry Pye. He attended weekly, eight sessions of which were paid for by Woolworths, and the final two by himself.
On 17 June 2022, he attended Dr Castagna, who certified him as totally incapacitated. He recommended analgesics, rest, and regular walking.
On 4 August 2022, a CT scan was performed on his lumbar spine.
On 30 August 2022, Dr Castagna reviewed the scan and informed him that it demonstrated an impacted disc in his lumbar spine.
He had continued to attend Dr Castagna once every two months.
He took Panadeine Forte, Burofen and Lengout, but only when his pain was very severe, as it often caused bowel issues. He also used a TENS machine every day, and a heat rub when required.
He had a constant, sharp pain in his lumbar spine, of a severity of about 4 out of 10. He was always aware of it. It was easily aggravated by bending, twisting, excessive movement, and occasionally by hot temperatures.
Weight-bearing had become more difficult. It was painful and difficult to carry shopping bags or garbage bags unless they were very light. It was painful to push and pull full shopping trolleys or garbage bins. He must ascend and descend stairs slowly and carefully, often with the assistance of a handrail, to avoid aggravating his pain.
He was capable of standing for about 20 minutes. He was capable of walking for 10 minutes on flat ground, and five minutes on uneven ground.
He was unable to bend. This was complicated by his inability to kneel or squat, due to his knee injury. Reaching low surfaces or objects was painful and difficult. Entering and exiting a car was painful and difficult, and he tried to avoid driving.
When he originally gave notice of the injury to the insurer by claim form, he did so mistakenly for the incorrect date.
When he attended CMH on 7 June 2022 and was provided with a certificate of capacity (COC), he had been asked by Dr (Jamie) Goodes about recent incidents relevant to the injury. He informed Dr Goodes of the events of 28 May 2022, but also mentioned the minor event of 24 May 2022, as it was recent and in relation to his lower back, though it quickly resolved.
He did not intend to suggest the injury was a result of the earlier, minor incident. Dr Goodes appeared to have confused the events, joining them into one that he described as falling from a stool, but also stated the stool was at work. The stool was at home, while the injury on 28 May 2022 was at work.
On 9 June 2022 and 10 June 2022, he completed a statement of injury and claim form, respectively. In each, he attributed the injury to “years of working”, but also mentioned that a “chair broke”.
That was again a mistake, as he had the impression he was to outline the recent events involving his lower back. He had performed lifting and carrying produce boxes every day for many years in the same fashion as on 28 May 2022, so attributed the eventual injury on that date as due to years of performance. He also mentioned the incident with the chair on 24 May 2022, but noted it was insignificant, in that he was “straight away fine to work.”
On 2 August 2022, he was provided with a COC from Dr Castagna, which also mentioned the incident with the chair. This was due to Dr Castagna having reviewed the COC from Dr Goodes, prior to writing his own. Dr Goodes’ certificate was inaccurate, due to a misunderstanding.
As a result of the above, the insurer declined his claim. He had since made a new claim, attributing the correct date and description of injury.

Evidence of Joshua Jon Hinze

Mr Hinze’s statement is dated 1 March 2023.
He had been employed by Woolworths since about 2014, in the produce section of the Casino store, where he worked alongside the applicant.
He recalled that, on 28 May 2022, the applicant approached him at work and advised him that he had injured his back in the cold room and was required to leave work and return home.
On 29 May 2022, he recalled that the applicant again approached him. The applicant advised that the pain in his back from the previous day was persisting, and he was again required to return home.

Medical evidence

Dr Aldo Castagna – GP

Dr Castagna has recorded 10 conditions or injuries. He has noted “works Woolworths → 1997.”
Right Bell’s Palsy was recorded from June 1992 to October 1996, “complete recovery.”
Left Bell’s Palsy was recorded on 2 July 1996.
Recurrent epistaxis was recorded as “#3”.
Left inguinal hernia was recorded as being present and repaired on 7 November 2009, by Dr Sally Butcher. A claim number was recorded.
Back pain, with no date, was recorded as “#5”.
Repair of umbilical hernia, again by Dr Butcher, with the date of 21 June 2011, was recorded as “#6”. The initial injury was in December 2010. A claim number and “Casino Woolworths” were recorded.
Soft tissue injury of the right knee was recorded as being due to a work accident fall on 12 September 2020.
Right Bell’s Palsy was recorded on 19 February 2021, treated with medication.
“#9” was recorded as chest pain on 18 August 2021.
“#10” was recorded as familial polycystic kidneys “father and paternal grandfather”.

On 14 June 2000, Dr Castagna recorded “(W/C)”. The applicant had strained his right elbow lifting the lid on an industrial bin, and then walked into a bin with his right elbow.
On 17 December 2008, Dr Castagna recorded “(W/C) Painful left shoulder, clinically partial tear or strain of left rotator cuff.” The date of injury was about 12 December 2008. The applicant needed an ultrasound. A workers compensation certificate was written.
Dr Castagna continued to issue workers compensation certificates for the injury to the applicant’s left shoulder until recording what may be “final clearance” on 18 February 2009.
On 29 September 2009, Dr Castagna recorded “(W/C)”. The applicant was developing a large LIH (left inguinal hernia). The pain had become more severe after he unloaded 300 containers, each weighing 5kg to 15kg, on his own.
On 3 November 2009, Dr Castagna recorded that the applicant had pulled his lower back while pulling up a freezer lid. It had now settled. Dr Castagna encouraged activity, which the applicant was reluctant to pursue because of pain.
Dr Castagna recorded “(W/C)” attendances in respect of the applicant’s hernia in 2009 and 2010.
On 14 April 2010, Dr Castagna recorded that that the applicant was clinically well and “full return to work.”
On a date that is unclear, but which may have been 11 January 2011, Dr Castagna recorded that the applicant “felt something tear” on 23 December 2010 when he was pulling a trolley and tried to avoid a customer. Dr Castagna noted what appears to be “? Lower abdo hernia”.
In February 2011 (the actual date is unclear), it was recorded (the handwriting does not appear to be Dr Castagna’s) that the applicant had a knife wound “10/7” on his right inner ankle. There was a red area around the sutures, which were removed.
On 14 February 2011 and 22 February 2011, Dr Castagna recorded “(W/C)” in respect of the injury to the applicant’s right ankle.
On 22 February 2011, Dr Castagna also recorded that the applicant was developing pain around his hernia, with a constant lump and dull ache. He was referred to Dr Butcher for repair.
On 4 April 2011, Dr Castagna recorded that the applicant had a final certificate for the laceration to his right foot. “Also referral to Dr Sally Butcher” about surgery for his hernia.
On 31 May 2011, Dr Castagna recorded that the applicant had developed severe pain at the L5/S1 region. It came on suddenly while he was lifting and pushing a cabinet around at home.
On 22 June 2011, Dr Castagna again recorded “W/C”. The applicant was getting a lot of abdominal pain since the surgery.
On 19 July 2011, Dr Castagna recorded “(W/C)”. There was a slow return to work with restrictions.
Dr Castagna continued to record “(W/C)” for consultations for the applicant’s hernia injury in September 2011 and October 2011.
On 21 September 2020, Dr Castagna recorded “W/C”. The applicant had a fall at work on 12 September 2020, falling heavily onto his right knee.
Dr Castagna continued to treat the applicant’s right knee throughout the rest of 2020 and issued a full clearance for work on 13 January 2021.
From 15 December 2021, there is a notation “See Electronic File”, but no electronic file is in evidence.
On 17 June 2022, Dr Castagna recorded “W/C”. The applicant had a garden chair collapse [possibly “underneath”] him. He fell onto the ground. Lower lumbar in the area where he fell became painful.
The applicant worked for three days and then the pain flared up. Dr Castagna told him that it was very unlikely he would get workers compensation for this injury, “despite it aggravating an old injury.”
Dr Castagna provided a workers compensation certificate “but thinks doubtful that work will accept this.”
The COC recorded the date of injury as 27 May 2022, “Exacerbation of old injury. Garden bench collapsed beneath him while he was seated on it.”
Dr Castagna noted on the COC that the applicant had a certificate from CMH from 28 May 2022 to 17 June 2022. He certified the applicant with no capacity for work from 17 June 2022 to 1 July 2022.
On 1 July 2022, Dr Castagna recorded that the applicant had been at Woolworths for 25 years. He had back pain about the same [illegible].
Dr Castagna issued a further COC, with the same date and description of injury. The applicant had no capacity for work from 1 July 2022 to 15 July 2022.
On 15 July 2022, there is a notation “rescheduled”. There is then a record of an attendance on 2 August 2022, followed by a record of an attendance on 15 July 2022.
On 2 August 2022, Dr Castagna recorded a review of the accident details, “because he has been rejected from w/c”. The seat broke on 24 May 2022 and not 27 May 2022, as the applicant originally stated. He worked on Wednesday 25 May, Thursday 26 May, and Friday 27 May. On Saturday, “pain really increased.”
Dr Castagna issued a COC that recorded a back injury when the seat collapsed beneath the applicant on 24 May 2022. “Pain commenced 27/5/2022.”
The applicant was certified with capacity to work for four hours per day, four days per week, from 3 August 2022 to 3 September 2022, with restrictions.
Then comes the record of attendance on 15 July 2022. Dr Castagna recorded that when the applicant was restocking the cool room on Sunday 29 May, the pain was a lot more severe. On Sunday he worked with Panadeine Forte “on board.” He only lasted three hours.
The applicant had gone home and used physical therapy, heat, and Dencorub. He did not work on 30 May or 31 May and went to CMH on 31 May. He was given one week off work and took one week off – “physical therapy.”
The applicant “saw work” on 7 June 2022 and reported the injury. He again went to CMH on 7 June 2022 and was off work until he saw Dr Castagna on 17 June 2022.
The applicant had been off work from 31 May 2022. He had been off work for 60 days and “[possibly 42 days] since he saw me.” Dr Castagna recorded that the applicant was to do walking, take Panadeine Forte, and have CT of the lumbar spine.
On 13 April 2023, Dr Castagna reported to the applicant’s union and the respondent.
Dr Castagna reported that the applicant fell at home on 24 May 2022 when the leg of a chair broke. He went to work on 26 May 2022 and 27 May 2022 “approximately with no issue, no pain and no discomfort.”
On 28 May 2022, the applicant was rearranging the cool room and felt a twinge in his lower back “and then the pain commenced.” It was felt in the lower back and had stayed in the same area since.
The applicant had attempted to return to work, with Dr Castagna’s encouragement, BUT Woolworths had restricted and prevented him from doing this. They had reached an impasse, and he thought the applicant and Woolworths should have an intermediate [sic] to resolve this issue. He had allowed the applicant to commence work slowly, but this had been REJECTED by Woolworths. (Capitalisation in original).
Dr Castagna thought they needed an independent doctor to review and assess the applicant’s work capacity. He seemed to have reached a “brick wall” with Woolworths and their acceptance to return the applicant to work. He “could have been back at Full Duties by now!”
Dr Castagna reported to the applicant’s solicitors on 5 October 2023. (All emphases in original.)
Dr Castagna opined that the applicant was fit to do 16 hours per week. That was what he assessed him as capable of doing at the time he wrote the certificate.
Dr Castagna’s comment that the applicant would have been fit for full duties was based on IF he had been allowed to return to work on 13 April 2023, due to a gradual increase in his work load every month, he probably would be fit to return to full duties by now. Now being 3 August 2023. He was not permitted to return to work, by his account.
The applicant claimed he was not allowed to return to his former workplace. Dr Castagna’s comment was that if he had been allowed to go back to work when he stated he could, by now he would probably be fit for full duties.
The applicant had always been overweight/obese. He lacked fitness and Dr Castagna did not believe he had been exercising (walking) to the degree that he had been asked to do. There had been no compulsion for him to become fitter because he had not been allowed to return to work.
Dr Castagna concluded that, “I hope I have explained this in full for you. I believe that there should be no further correspondence on this.”

Casino Memorial Hospital (CMH)

On 31 May 2022, the applicant presented at CMH.
The triage information recorded by Ms Fay Hartley was that the applicant walked in complaining of left lower back pain for the past week after a fall off a chair. “Nil radiation. States not improving and worse of mane.”
Dr Morwenna Maria Haywood issued the applicant with a medical certificate for a “medical condition” and certified him as unable to attend normal duties from 31 May 2022 to 5 June 2022, inclusive.
Dr Haywood wrote to Dr Castagna on 31 May 2022.
Dr Haywood noted that the applicant had presented with left SIJ (sacroiliac joint) pain and sciatica. The onset was last week after a stool leg broke. No additional analgesia was tried. There was no weakness, numbness, tingling, incontinence, or fevers. “PMH (past medical history) – bilateral hip OA.”
The applicant again presented to CMH on 7 June 2022.
The triage nurse, Ms Shanette Lowe, recorded that the applicant had walked in requesting a WorkCover form for lower back pain since last week, when the legs on a chair broke and he fell onto his buttock, “acute on chronic back issue.”
The applicant was treated by Dr Goodes.
Dr Goodes wrote to Dr Castagna that the applicant had presented with back pain, requesting a workers compensation certificate. He had been seen on 31 May 2022 for an injury on 24 May 2022.
The history recorded by Dr Goodes was that a stool broke under the applicant’s weight, and he fell onto his backside, exacerbating a chronic lower back issue.
Dr Goodes recorded that the applicant’s back was stiff in the morning. The pain was predominantly on the left side. “Hasn’t seen GP for this.”
Dr Goodes issued a workers compensation certificate for “acute on chronic lower back exac[erbation].”
The COC recorded that the date of injury was 24 May 2022. The cause of the injury was “broken stool at work.” The diagnosis was acute on chronic exacerbation of low back pain. Existing relevant factors were bilateral hip osteoarthritis and chronic low back pain.
Dr Goodes certified the applicant with no capacity for work from 24 May 2022 to 17 June 2022.

Physio Plus

On 11 August 2021, Ms Carly Fraser recorded that the applicant presented with low back pain.
The applicant’s symptoms increased with prolonged standing at check outs, holding a bag while placing food in it, and resting. He was to “stop check outs and increase walking, gentle movements.”
On 18 August 2021, the applicant’s back was “going well”.
On 26 August 2021, Ms Fraser recorded that the applicant was feeling a lot better. He was lifting 6kg to 10kg at work, “fine.”
On 6 September 2021, Ms Fraser recorded that the applicant was “Agitated with work. Wants to lift heavier.” He was busy on Friday and Saturday and felt mild pain during the day, which settled before the end of the shift.
On 13 September 2021, Ms Fraser recorded that the applicant’s back had been going well, “90% better”. He was non-compliant with HEP (home exercise program).
On 23 September 2021, Ms Fraser recorded “back to where it was before injury”. The applicant was compliant with the HEP and going well. He was discharged.
On 10 June 2022, Mr Henry Pye recorded “WC Initial Physiotherapy Consultation.”
The applicant had presented with left-sided low back pain. Two weeks ago, he fell off a chair and “landed on buttock”.
The applicant was off work. He had a past history of low back pain and right hip dysfunction.
Mr Pye’s provisional diagnosis was L4/5 facet joint irritation/? disc dysfunction.
On 15 June 2022, the applicant was slowly improving but not back to work yet.
Mr Pye reported to Dr Castagna on 15 June 2022.
The applicant had a lumbar spine injury following a fall off a chair at home. He reported long term back issues, with this being an aggravation in the same area.
The applicant was under the Woolworths FPES system for a non-work related injury and had three physiotherapy sessions approved. He had presented for two sessions.
The applicant was off work and had a limited capacity to non-lifting tasks and stationary tasks within 30 minutes.
On 22 June 2022, Mr Pye recorded that the applicant was slowly improving, but not back to work yet. “Insurance not claiming liability due to occurring at home.”
Mr Pye made similar observations on 29 June 2022 and 6 July 2022.
On 13 July 2022, Mr Pye recorded that the applicant had aggravated his low back pain on the weekend, walking up an escalator. He was not back at work yet. He was to see the doctor on Friday.
On 20 July 2022, Mr Pye recorded that the applicant was slowly improving. His pain was “up/down depending on activity.” His HEP was “on/off”.
The applicant was still off work, as he was not comfortable to return. Work would only have him back if he was on full duties.
On 3 August 2022, Mr Pye recorded that the applicant was slowly improving. “Dr Aldo” wanted him to walk 6km per day.
The applicant felt that his movement was getting better. He still did not want to go back to work. He was getting a CT scan.

Dr Alan Hopcroft – general surgeon (orthopaedics)

Dr Hopcroft was qualified by the applicant and reported on 7 December 2022.
Dr Hopcroft recorded the date of injury as 24 May 2022.
Dr Hopcroft recorded a history that the applicant suffered an injury to his back at home on 24 May 2022, when he was sitting in an old chair. He had twisted in the chair, unaware that its legs were unstable, and with the legs collapsing, he fell, impacting the floor with great force over a distance of about 60cm. He was a heavy man, currently weighing 149kg.
The applicant developed minor back pain on impact, and had the following day off work, due to developing the symptoms of his son, who had been sick with a stomach bug. He opted then to return to work, after being ill on 26 May 2022, noticing no particular outstanding back pain, although he had a long history of back pain, dating from 1998.
The applicant worked on his first day back at work from 6.00am to 4.00pm, and on the Friday he worked from 6.00am to 3.00pm. On the Saturday he was restacking stock in the cool room and lifted a box weighing nearly 8kg to 10kg when he developed sudden severe pain.
The pain was so severe that the applicant had to sit on a pallet for some time. With continuing pain, unable to continue work, he reported to his foreman and went home. He used some Panadeine tablets and had a hot shower.
The applicant returned to work on Sunday but had continuing low back pain and after three hours was unable to continue and went home.
The applicant opted to visit the CMH. He did not want to initiate a workers compensation claim, as he had had a long term problem with claims in the past when he was treated for two hernias.
At the CMH, the applicant was not offered any X-ray and was advised to check with his GP sometime in the future.
The applicant was unable to get an appointment with Dr Castagna and returned to the CMH to extend a sick certificate. Once again, he was advised to see Dr Castagna, whom he consulted on 17 June 2022.
Dr Castagna converted the applicant’s sickness certificate to a workers compensation certificate and advised him to mobilise by continued walking.
Once advised of the applicant’s injury, Woolworths recommended six physiotherapy visits.
With further reviews by Dr Castagna, the applicant was sent for CT of his lumbar spine on 4 August 2022.
Dr Hopcroft referred to the CT scan report, which showed left paracentral disc bulges at L4/5 and L5/S1. “By that time”, the applicant was developing some left-sided sciatica, which Dr Hopcroft opined correlated to the changes on the scan.
The applicant complained of ongoing and significant low back pain, with slowly increasing bilateral sciatica, radiating down the posterior aspect of the thighs to the knees, worse on the left.
The applicant occasionally had no pain on the right side of his back or right thigh but had constant pain on the left of his lumbosacral area, and when the sciatica increased in his left leg, it seemed to initiate the onset of sciatica in his right thigh.
The applicant’s problem was aggravated by static standing and walking up and down hills.
Dr Hopcroft recorded the back injuries sustained by the applicant while employed by the respondent. Mr Humphrey had also sustained hernias and an injury to his right knee.
Dr Hopcroft opined that the applicant required X-ray of his sacroiliac joints and hips, as he believed both areas were contributing significantly to his pain syndrome, and almost certainly being aggravated by his gouty diathesis.
Dr Hopcroft further opined that the applicant had suffered a significant injury to his lumbosacral spine. He believed the intervertebral disc protrusion level corresponded dermatomally to his increasing left-sided sciatic syndrome. However, the applicant had a long history of back pain with injuries, along with increasing pain in his right hip and decreasing range of movement on that side, although he had arthritis in both hips, according to prior advice.
The applicant had ongoing pain in his right knee and both feet. Dr Hopcroft believed his overall pain syndrome was being aggravated by poorly managed gouty diathesis.
Dr Hopcroft opined that the applicant had been restricted from returning to work from 28 May 2022. His employment had been a substantial contributing factor to the injuries observed, and the main contributing factor to his long history of back pain.
The applicant should continue a program of physiotherapy, but Dr Hopcroft believed a weight reduction program was mandatory if he was to avoid further significant and accelerating restrictions in all weight bearing activities.
Dr Hopcroft opined that the applicant’s treatment had been reasonably necessary. His prognosis would be directly proportional to his success in reducing his weight. His whole person impairment was 7%.

SUBMISSIONS

Counsel’s submissions have been recorded, so I will summarise them briefly.

Applicant

The applicant relied on various injuries, pursuant to s 4(a) of the 1987 Act, over time; short term aggravation injuries, described as s 4(b)(ii) injuries; and the injury of 28 May 2022, causing his incapacity from 29 May 2022.

Mr Hinze’s statement was of significant importance. Mr Hinze described recalling that on 28 May 2022 the applicant approached him at work and advised him that he had injured his back in the cool room and was required to leave work. He stated that he recalled the applicant again approaching him on 29 May 2022, advising that the pain in his back persisted, and he was required to return home.
The applicant submitted that Mr Hinze described himself as having been employed by Woolworths and working alongside the applicant since about 2014.
The applicant referred to his evidence about his education and work history. He submitted that, in examining s 32A of the 1987 Act, it would be important to take this into account. He had spent most of his time as a shop assistant with the respondent since May 1997.
The applicant submitted that, time and again, he reported the injuries that occurred with Woolworths, but took no time off.
The applicant referred to his evidence of the injury on 24 May 2022. He submitted that he sought treatment from Mr Pye in August 2021. The multiple sequential injuries and aggravations were not as florid as after 28 May 2022. He referred to the report of the CT scan performed on 4 August 2022. The focus was L4/5 and L5/S1.
The applicant submitted that much depended on whether I accepted his explanation of the modest pain he felt after the chair collapsed, which he stated fully resolved. He submitted I would accept that, despite what is apparent from the clinical records of the CMH and Dr Castagna, relating to what he said when he attended for triage. This had to be seen in the context of a viable and valid explanation of what occurred. It had to be seen in the context of an apparent inconsistency in the claim form.

The applicant referred to his explanation of the notice of injury he gave to the insurer, and the evidence of CMH and Dr Castagna. As a result, the insurer declined his claim on the basis that the chair incident was not a work injury.
The applicant submitted that, in his report dated 13 April 2023, Dr Castagna appeared to accept his history.
The applicant then referred to Dr Hopcroft’s evidence. He submitted that he relied upon a discrete event on 28 May 2022, “a [s] 4(a) style injury”. With that difficult history of the recording of the injury, Dr Hopcroft had discharged the onus of substantial contributing factor.
The applicant submitted that as at 7 December 2022, Dr Hopcroft had opined that he was restricted in terms of all forms of work.
If I was against the applicant on that, one needed to be guided by Dr Castagna’s certification. The COCs supported that he had no capacity until 30 August 2022, and he submitted that the rate of compensation would be 95% of the PIAWE under s 36 of the 1987 Act. Thereafter, from 30 [sic: 31] August 2022 to when Dr Hopcroft saw him on 7 December 2022, he would be awarded 80% of the PIAWE rate under s 37 of the 1987 Act. Thereafter, one was guided by Dr Castagna’s certificates.
The applicant conceded that he could not submit other than that there was a closed period at 6 June 2023, when he was certified as fit for suitable duties for 40 hours per week, with restrictions, as, when one looked at what he might earn in suitable duties, and applying the 80% rate, it was evident from his hourly rate at Woolworths of $24.26 per hour, there would not be an ongoing loss. In applying Wollongong Nursing Home Pty Ltd v Dewar[1] there would be something he could have done from 3 June 2023 of a suitable nature that would have realised something in the order of $800 to $900 per week.
[1] [2014] NSWWCCPD 55.
The applicant asked me to accept his explanation. It seemed to be made out by the GP “in the final wash-up in his report”, and he is seen to have suffered multiple injuries. There was no reason for him to “fudge a claim in relation to this injury”. He asked me to accept his explanation as to why there was a focus by the medical practitioners and triage staff at the hospital on his history as given.
The applicant fell off a chair on 24 May, but he asked that I focus on his return to work and the witness statement, which supported the allegation of injury on 28 May 2022, and note the significance of the CT scan. He asked for a general order for s 60 expenses.

Respondent

The respondent submitted that it had been quite clear that the applicant relied on a s 4(a) injury to his back on 28 May 2022. I would not accept that he in fact sustained a s 4(a) injury on 28 May 2022.
The respondent submitted that there were a number of discrepancies between the claim form and what the applicant said in his statement and other evidence. His reason for the delay in reporting the injury was that “Workers comp is stressful”.
The claim form was completed on 10 June 2022, post the incident on 24 May 2022, the incident the applicant alleged occurred on 28 May 2022, and his return to work between the incidents, but the respondent submitted none of this was referred to in the claim form.
The respondent submitted that the applicant nominated Dr Castagna as his treating doctor in the claim form, but it appeared he did not see Dr Castagna until after he attended CMH, and first saw him on 17 June 2022.
The respondent submitted that the applicant stated on the claim form that the injury occurred on 24 May 2022 at 12pm. He stopped work on either 28 May 2022 or 29 May 2022 (it is unclear), at 7:30am. He reported the injury on 31 May 2022.
The respondent submitted that this was extremely important in the face of the statement from Joshua Hinze, which was dated 1 March 2023, some little time from any incident that might have occurred on 24 May 2022, 28 May 2022, or any time in 2022. Joshua Hinze said it was reported to him on the same day. That is not consistent with what the applicant said. The respondent asked why he would not say that he reported it to Joshua Hinze at the time or shortly after the injury occurred.
The respondent submitted that Dr Castagna’s report dated 13 April 2023 is not a contemporaneous document. This is an explanation in hindsight, and that was precisely what the applicant had also done. It was a reconstruction by the applicant in his statement, many months after the incident and consistent with what Dr Castagna said in this document.
The respondent referred to Dr Castagna’s handwritten notes. He had told the applicant it was very unlikely he would get workers compensation for this injury, despite it aggravating an old injury.
The respondent submitted that it was on 2 August 2022 that the applicant told Dr Castagna that the seat broke on 24 May and not 27 May, as he originally stated. There was nothing to say that he lifted stock.
The respondent was concerned about the entry on 15 July 2022, as there was a notation “15^th of July 2022, rescheduled”, and “suddenly” there was an entry on 15 July 2022 when the applicant was restacking the cool room.
The respondent submitted that I would be extremely careful about taking into account the entries dated 15 July 2022, because they seemed to have been added into the clinical notes. The applicant has provided the history of having worked, only to Dr Castagna, and Joshua Hinze has something similar. It was not something the applicant said to anyone else.
The respondent also referred to the records of the physiotherapist. In 2020, there was a notation of tenderness at L5/S1 and L4/5, which was the same area disclosed in the CT scan in August 2022.
The respondent submitted that Dr Hopcroft was not aware of the details of the applicant’s pre-existing condition. It was all very well to say the applicant had had a number of back injuries at work. This was not a nature and conditions claim. It was a claim for a [s] 4(a) condition, but quite clearly the applicant was having problems in the same area of his back previously.
The respondent submitted that the applicant was being treated under workers compensation for an injury to his right knee in 2020 and 2021. He was also treated under WorkCover for lower back pain in August 2021. He “knew his way around the workers compensation system” yet did his claim form in a way that was completely contrary to what he was asking me to believe.
The respondent submitted that the only incident the applicant referred to in the claim form was that on 24 May 2022. He said, “Same injury over the years”, which the respondent submitted meant he had had a back injury. He had had a problem with his back over the years, but nothing more than that. There was no reference to 28 May 2022, or lifting stock, as at 10 June 2022.
The respondent also referred to the history recorded by Mr Pye on 10 June 2022, the same date as the claim form. There was no other history than that the applicant “Fell off chair and landed on buttock.”
The respondent referred to the remainder of Mr Pye’s evidence. It submitted the applicant knew about workers compensation, knew how to claim it, did not give the practitioners a proper history, and was only referring to what the respondent said was the only incident that actually occurred, that was on 24 May 2022.
The respondent submitted that, as early as 15 June 2022, Mr Pye was suggesting that the applicant had capacity to work.
The respondent submitted that the COCs were also extremely important. The initial COC referred to “broken stool”. Dr Castagna recorded a fall onto the ground when the chair the applicant was sitting on collapsed.
The respondent referred to the discharge summary of CMH on 31 May 2022, a few days after the applicant said he was “perfectly fine” after 24 May 2022, and had his child not had flu he would have gone to work, but then had the incident on 28 May 2022, which put him off work. The applicant did not have to choose between the incidents. He could have told the hospital about both, but he did not.
The respondent also referred to the CMH records dated 7 June 2022. It submitted the applicant again had the opportunity of correcting the history, but he said nothing about anything but the incident when the stool broke and he fell to the ground.
The respondent submitted that the contemporaneous evidence, that is, CMH, the physiotherapist, and Dr Castagna, all had the same history. The only thing that changed was that on 2 August 2022, the applicant told Dr Castagna that he had in fact returned to work on 28 May 2022 and 29 May 2022.
The respondent submitted that, to accept the applicant’s evidence, I would have to reject all the contemporaneous material, because it is not consistent with the applicant’s evidence, and that included the statement of Joshua Hinze, which was made months after the incident. He did not say why he remembered what had happened.
The respondent submitted that what Joshua Hinze said about the applicant having reported an incident on 28 May 2022 and 29 May 2022 was not referred to in the claim form or any other contemporaneous material at the time. It submitted I would find against the applicant in respect of injury.
The respondent submitted that I would give Dr Hopcroft’s report very little weight as he did not have an appropriate history. He did not appear to be aware that, prior to 28 May 2022, the applicant complained about symptoms in precisely the same areas he subsequently complained of.
Dr Hopcroft opined that the applicant sustained injury on this particular date on the basis of the incomplete history. He had not paid any attention to the fact that none of the contemporaneous material supported the applicant’s version of events.
As regards capacity for work, the respondent submitted that, as early as 7 December 2022, Dr Hopcroft suggested the applicant could do some work. There was a COC from 3 August 2022 that certified the applicant as fit for 16 hours per week, and from 6 June 2023, Dr Castagna certified him as fit for 40 hours per week.
The respondent submitted that both the physiotherapist and Dr Castagna had been encouraging the applicant to try to get back to some work. There is no evidence as to whether the applicant tried to get any work, or the sort of work he was looking for.
The respondent submitted that the applicant was perhaps totally incapacitated until 3 August 2022, and from that point could have returned to some form of work. Therefore, any loss he was suffering would have been absolutely minimal.

SUMMARY

Injury

The applicant pleaded in the Application a number of injuries, which he submitted were
“s 4(a) injuries”; injuries that he submitted were short-term “aggravation injuries” and injury on 28 May 2022, which he submitted caused incapacity from 29 May 2022. However, he submitted that he relied on a discrete event on 28 May 2022, a “s 4(a) style” injury.
There are several aspects of the claim that I have found troubling, and that is due to the contemporaneous evidence, including that of the applicant.
I will commence with the medical evidence. I am mindful that care must be taken in reviewing clinical records, and in comparing the histories recorded with the evidence of an injured person.[2] However, the most contemporaneous evidence is that of the CMH and Dr Castagna, and I believe it is important to consider it in making my determination.
[2] For example, Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; Mason v Demasi [2009] NSWCA 227.
When the applicant presented at CMH on 31 May 2022, the history recorded was of back pain for the past week (that is, from on or about 24 May 2022) after a fall off a chair.
The applicant’s pain was not improving. There was no history that the pain had not initially troubled him unduly (that it was 1 or 2 out of 10), that it had fully resolved before he returned to work on 26 May 2022 and 27 May 2022 (or indeed that he had returned to work), or that he had sustained injury at work when the pain increased to about 8 or 9 out of 10, which was the evidence he gave in November 2022.
When the applicant again presented to CMH on 7 June 2022, he was requesting a WorkCover “form” for lower back pain “since last week” (which would have been about 1 June 2022, and he reported the injury on 31 May 2022), due to having fallen when a chair broke.
As the applicant had obviously decided to make a claim at that stage, I would expect him to have provided a history that established a connection between the injury and his employment. He had, after all, made several claims for compensation, and was aware of the requirements to do so. Dr Goodes recorded that the broken stool was at work, which he probably assumed to be the case, given that the applicant wished to make a claim.
The next contemporaneous medical evidence was when the applicant consulted Dr Castagna on 17 June 2022. Dr Castagna recorded the history that the applicant fell when a chair collapsed, worked for three days, and then the pain flared up.
When Dr Castagna advised the applicant that he was unlikely to get workers compensation for the injury, I would have expected that the applicant would have provided Dr Castagna with the history he later gave in his statement. That is, that the pain from the fall completely resolved and it was in fact his work activities that caused his current symptoms.
Dr Castagna did not record this history until 15 July 2022, but he has also recorded that he reviewed the accident details on 2 August 2022, because the applicant’s claim had been rejected. It is unclear why he reviewed the details again, having apparently reviewed them on 15 July 2022. EML had apparently disputed liability on 17 June 2022.
Dr Castagna’s report dated 13 April 2023 is supportive of the applicant’s version of events but was provided some time after those events are said to have occurred and appears to involve some reconstruction.
Mr Pye, while he recorded on 10 June 2022 that the applicant had presented for a workers compensation consultation, recorded only the history of the fall from the chair, two weeks ago [sic].
Mr Pye reported to Dr Castagna on 15 June 2022 that the applicant’s injury followed a fall from a chair at home. He also noted that his treatment had been approved by the respondent for a non-work related injury.
There is no record that, when the applicant’s claim was disputed, he told Mr Pye that in fact he had recovered from the fall from the chair, and he sustained the injury at work.
Turning to the applicant’s evidence, the most contemporaneous evidence is the first claim form, dated 10 June 2022. I note here that he has given evidence that he completed a statement of injury on 9 June 2022, but it is not in evidence.
The first claim form recorded only the history of the fall from the chair at the applicant’s home on 24 May 2022. There is no reference to any injury or incident at work, in the cool room or anywhere else. The applicant stated that he had had similar injuries before, including in September 2021, but did not mention a much more recent injury on 28 May 2022.
The first claim form stated that the applicant delayed reporting the injury because he found workers compensation stressful. That does not explain why he does not appear to have provided a history of the injury at work to CMH on 31 May 2022. He could have done so, while at the same time making the decision that he would not pursue a claim.
The applicant stated in the first claim form that he reported the injury to Andy Rogers on 31 May 2022. He did not mention having reported it to Mr Hinze, which would have meant there was no delay in reporting. Mr Hinze could have confirmed that he reported the injury on 28 May 2022, the date on which it is alleged to have occurred.
In the second claim form, the applicant stated that he reported the injury to Mr Hinze. The injury was stated to have occurred on 28 May 2022 when he was lifting a box of vegetables in the cool room. This was not mentioned in the first claim form.
The applicant has given evidence that he initially provided the incorrect date of injury in the first claim form and corrected this in the second claim form. However, the “error” is not just in stating that the date of injury was 24 May 2022. The mechanism of injury in the first claim form is stated to be that a chair broke, and the applicant landed on his “butt”. This supposedly minor incident was stated to be the cause of the injury, and the incident in the cool room was not mentioned at all.
The applicant stated that he told Dr Goodes about both the event of 28 May 2022 and the “minor event” of 24 May 2022, but Dr Goodes appeared to have confused the two events. That may be easier to accept were it not for the other contemporaneous evidence to which I have referred. The history of the fall from the chair is also consistent with that recorded by Ms Hartley and Ms Lowe, the triage nurses.
As the respondent submitted, the applicant could have told Dr Haywood and Dr Goodes about both incidents, but it does not appear from their records that he did so.
The applicant’s evidence was that Dr Castagna, having reviewed the COC issued by Dr Goodes, also mentioned the incident with the chair, but Dr Goodes’ certificate was inaccurate. Dr Castagna has not given evidence that he had merely reproduced what Dr Goodes had recorded. That does not appear in his “review” of the accident details.
I am mindful that Dr Castagna’s reports demonstrate some impatience with the process, and his main concern appeared to be returning the applicant to work, but this was obviously an important issue, on which clarification could have been sought.
Mr Hinze has made a statement in which he gave evidence that the applicant advised him on 28 May 2022 that he had injured his back in the cool room and on 29 May 2022 advised him that he was in pain and had to go home.
This statement was made in March 2023, about nine months after the events are said to have occurred. There is no evidence from Mr Hinze as to how he is able to be certain of the dates of these events and of what the applicant is said to have told him.
I regard it as unlikely that, without reference to contemporaneous records, or some other aid to his memory, Mr Hinze would have such a precise recollection of the events. I have already noted that the applicant did not say in the first, more contemporaneous, claim form that he reported the injury to Mr Hinze. I do not regard the evidence of Mr Hinze as persuasive.
Dr Hopcroft is supportive of the applicant. However, an acceptance of his evidence depends on an acceptance of the history that informs his opinion. I am not prepared to accept the history, in view of the discrepancies in the contemporaneous evidence and the unsatisfactory explanation for same.
McDougall J, McColl JA and Bell JA agreeing, said in Nguyen v Cosmopolitan Homes:[3]
“The position may be summarised as follows:
(1)     A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)     Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)     Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4)     A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[3] [2008] NSWCA 246 at [55].
For the reasons given above, I do not feel a sense of actual persuasion that the applicant sustained injury to his lumbar spine on 28 May 2022. I am therefore unable to find on the balance of probabilities, that the injury occurred as alleged.

The order is set out in the Certificate of Determination.

[2024] NSWPIC 218

30 April 2024