Jomaa v Borg Manufacturing Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jomaa v Borg Manufacturing Pty Ltd [2025] NSWPIC 122
APPLICANT:	Chadi Jomaa
RESPONDENT:	Borg Manufacturing Pty Limited
MEMBER:	Mitchell Strachan
DATE OF DECISION:	2 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; injury; competing factual chronology; Held – applicant did not sustain injuries in the course of his employment with the respondent; injury did not occur; award for the respondent.
DETERMINATIONS MADE:	The Commission finds: 1. The applicant did not fall from the stairs leading down from the access walkway over the PUR line on 15 March 2019. The Commission determines: 2. The applicant did not sustain injuries to left foot, left knee, right shoulder, back, eye, left ankle and right elbow in the course of his employment with the respondent on 15 March 2019. 3. Award for the respondent on the claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

This matter concerns an assertion by Mr Chadi Jomaa (the applicant) that on 15 March 2019 he fell from stairs leading down from an elevated access way over a piece of factory machinery known as the “PUR line” and in doing so sustained significant injuries for which he now brings a claim for lump sum compensation. For the reasons set out below, I am not satisfied that the applicant fell from the stairs as alleged and as such, his claim for lump sum compensation cannot succeed.
The applicant was employed by Borg Manufacturing Pty Limited (the respondent) as a factory operator or “line worker” and his duties including maintaining and observing the product line known as the PUR line.
The applicant alleges that on 15 March 2019 he sustained injuries to his left foot, left knee, right shoulder, back, eye, left ankle and right elbow when he fell downstairs on one side of an elevated platform that allowed workers to traverse from one side of the PUR line to the other.
The respondent disputes that the injury occurred at all and asserts that he alleged injury was fabricated by the applicant, motivated by the potential financial gain. Having found for the reasons that I have that the injury did not occur at all, I have made no findings with respect to the applicant’s motivations in bringing these proceedings.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the alleged injury arose out of on the course of the Applicant’s employment as required by s 4(a) of the Workers Compensation Act 1987
(1987 Act), involving a determination of whether:
(i)by virtue of the applicant’s conduct, he removed himself from the course of his employment so that any injury sustained is not compensable and/or
(ii)the injurious event relied on, being a fall from the PUR line stairs, actually occurred.
(b) whether the applicant’s employment was a substantial contributing factor to the alleged injury as required by s 9A of the 1987 Act, and
(c) the nature of the alleged injuries in terms of the identifiable pathology attributable to the incident on 15 March 2019 and which body parts are capable of referral to a Medical Assessor.
The applicant previously brought proceedings against the respondent in the former Workers Compensation Commission in 2019. The resolution of these proceedings is set out in a Certificate of Determination – Consent Orders dated 31 January 2020. The application was discontinued. There is a notation that the respondent would pay the applicant a closed period of weekly compensation. Neither party has asserted that this prior Certificate of Determination created an estoppel or otherwise prevented the respondent from disputing the issues in dispute in the present proceedings.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference and arbitration hearing in Newcastle before me on 12 November 2024.
The applicant was in attendance represented by Ms Balendra of counsel instructed by
Mr Davey, solicitor. The applicant was supported by his wife, Mrs Jasmine Jomaa.
Mr Krieg, solicitor, appeared for the respondent with Ms Moylan. Ms Hill of the respondent’s insurer was also in attendance.
The Personal Injury Commission (Commission) was also assisted by an Arabic interpreter, Ms Claudia El-Brihi.
During conciliation I 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 had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
A number of interlocutory issues required resolution and the respondent was granted leave to file:
(a)    a complying agreement dated 7 November 2011 between the applicant and his former employer RLA Polymers Pty Ltd;
(b)    four video files depicting the PUR line around the time of the alleged accident, and
(c)    statements of James Davidson dated 11 November 2024 and 12 November 2024.
The parties also reached a factual agreement, with the applicant conceding there was an agreement between him and his prior employer for the payment of $550,000 in resolution of a work injury damages claim for an injury in 2008.
I also granted the respondent leave to cross examine the applicant.
I gave oral reasons with respect to the interlocutory issues determined, a transcript of which were made available to the parties together with the transcript of the applicant’s oral evidence. I indicated that given the time constraints, I would provide further written reasons with these reasons determining the substantive issues. Having reviewed the oral reasons given and mindful of the Commission’s obligation to provide brief reasons, I do not consider further written reasons on the interlocutory issues are necessary.
Due to insufficient time for oral submissions, I set a timetable for the provision of written submissions which have now been received. The respondent’s primary submissions are dated 13 December 2024. The applicant’s submissions were received 29 January 2025.
The respondent’s submissions in reply are dated 7 February 2025.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents filed by the respondent dated 18 November 2024.
The documentary evidence before the Commission in these proceedings exceeds
900 pages. At the commencement of the arbitration hearing the parties were reminded of the need to refer to relevant evidence in support of submissions made. I note the observations of the High Court in Gamestar Pty Ltd v Lockhart (1993) 112 ALR 623 (Gamestar) where it was observed that a Court is not required to “search for supportive evidence” in support of a claim. The High Court stated:
“In court proceedings, a judge is bound to give a party a reasonable opportunity to state the party's claim for relief and to point to the evidence which supports it. But if the opportunity is not taken, the judge is not bound to set out on a search for supportive evidence to support a claim which the party has failed to articulate intelligibly. Gaudron J was correct in holding that there was no denial of natural justice.”
These observations have been applied in the Workers Compensation Commission (see for example Jaffarie v Quality Castings Pty Ltd [2017] NSWWCCPD 2 at [208]; Carter v Star Track Express Pty Ltd [2015] NSWWCCPD 60 at [34] and in the Personal Injury Commission when the material is extensive, and the parties are on notice (Sara v G&S Sara Pty Ltd [2021] NSWPIC 286). The principle is otherwise consistent with the objects of the Personal Injury Commission Act 2020 which provide that the Commission is to “resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible” (section 3, Personal Injury Commission Act 2020).
The requirement is now embodied in r 67D(2) of the Personal Injury Commission Rules 2021 which I note commenced in the period between the arbitration hearing and the conclusion of the timetable for the provision of written submissions.
I further observe the Commission has a statutory obligation to provide a “brief statement of reasons”.

Oral evidence

The respondent was granted leave to cross examine the applicant with the assistance of the interpreter. The applicant’s evidence was recorded and a transcript has been made available to the parties.

FINDINGS AND REASONS

The applicant asserts that, in the course of his employment with the respondent, he fell down a set of stairs leading down an access platform sitting over the PUR line, sustaining significant injuries.
The respondent asserts that the fall did not occur and further the circumstances of the alleged injuries were fabricated by the applicant for financial gain.

Did the applicant fall down the stairs?

For the reasons that follow, I am not satisfied that the applicant has met his onus in establishing that he sustained injuries in the course of his employment with the respondent as alleged.
It is convenient to firstly set out the available lay evidence with respect to the period immediately prior to and at the time of the alleged fall.
In his statement of 14 May 2024, the applicant provides the following evidence:
“On 15 March 2019 during the course of my employment with Borg Manufacturing I sustained injury after falling down a set of stairs.
I have been in the crib room having dinner and I was walking back to go down a flight of stairs to return to the production line when I fell. I cannot recall if I was actually on the stairs or on the floor when I fell or what caused me to fall”.
The alleged circumstances are more fully set out in his statement of 9 April 2019:
“My current injury occurred on the 15 March 2019. The accident happened after dinner. I started work that day at 2:30pm although I usually get there at 1:30pm. I start with glue testing. Then I work the machine and monitor what is on the machine line, the laminate. Sometimes we carry boards and place them on the lines. Sometimes the work is heavy and sometimes it is not.
The bell range for dinner so I ate dinner and went to go to the toilet, washed my hands and went back to work. The dinner break is half an hour. I ate with the staff in the meal room. My memory of the accident is not good. The last thing I remember is after I cleaned my hands I went back to work. I walked up the steps, across the walkway and then fell down the stairs. I lost consciousness. I can’t remember how long I was unconscious for. I woke up and panicked. I had blood on my left knee, pain to the right elbow and to the back of my head. My shoulder and back was sore. I had bruising to my right eye. I hurt my left ankle and heel.
…
When I was alert there was no-body around. I called Joseph. I am not sure how long it took him to get to me.”
In his Application to Resolve a Dispute the applicant pleads the circumstances of his injury in the following terms:
“While returning to the factory floor in the course of employment, the Applicant fell down a set of stairs and sustained injury to his left foot, left knee, right shoulder, back, eye, left ankle and right elbow. The injuries sustained have required multiple surgeries.”
While the applicant has at times in his evidence not been able to recall the fall or whether he fell down the stairs or while on the ground, the case advanced by the applicant in the current proceedings is that he was returning to the factory floor from his dinner break and in doing so walked over the PUR line access way and fell down the left hand side of the stairs where he was found by his colleagues after calling one of them for assistance.
The applicant must establish, on the balance of probabilities, that he fell down the PUR line stairs sustaining the claimed injuries. The fall down the PUR line stairs is a core element that the applicant must establish.
A Notification of Injury/Illness form was completed by Michael Moore, return to work coordinator, on 18 March 2019 which relevantly records:
“Chadi claims that he fell down some stairs in his work area. Video camera footage was reviewed and no incident can be found occurring’
The following is a still imagine of the PUR line where the injury is alleged to have taken place, taken from CCTV footage which is in evidence.
The elevated access way from which the applicant alleges he fell can be seen in the image halfway down the length of the factory behind piping which leads from the machine below to the roof above.
Michael Moore provided a formal statement to investigators retained by the respondent’s insurer dated 2 April 2019 where he states the following:
“I have also provided CCTV footage of this alleged incident. I have provided a timeline in relation to my observations of the CCTV footage.
…
The incident site is captured by a motion operated camera that is activated with any movement in the area. The walkway referred to by Chadi is visible in the footage however at no time can he be seen to walk across that walkway around the time of incident.”
The timeline provided is contained within a document titled “Course of Events – Michael Moore – Borg Return to Work Coordinator” where it is evident Mr Moore reviewed available surveillance footage of the worksite between 9.10am and 10.00am on 18 March 2019 and recorded the following notes from the footage he witnessed:
“       6:01pm:      Chadi walks the long way around the line once again.
6:03pm:    Chadi walks to his inspection area and looks to be touching a bottle of thinner (used for removing excess glue and smudge marks from product on the line).
6:12pm:    Chadi walks from the incident area and places something in the bin (Chadi hangs around the bin area for approximately seven seconds before leaving).
6:13pm:    Chadi is seen walking toward the incident area carrying his bag in his right hand and a bottle in his left hand. When reaching the area of the incident, Chadi leans over toward the ground.
6:17pm:    We can see Chadi’s high-vis shirt through the gap, between the machines blocking the area.”
The same document also detailed Mr Moore’s conversations following the incident in the course of his investigation with Joseph John and Jarrod Sinclair:
“Joseph also explained that Chadi normally does not stay in the work area during his break. To his knowledge Chadi is always in the lunchroom near shelving and components during his 6pm break. Joseph could think of no reason as to why Chadi had remained behind on Friday night”
“Similar to Joseph, Jarrod also agreed that it was very out of the ordinary for Chadi to remain in the work are [sic] during his 6pm break time.”
Mr Martin Harvey, HR Officer & Work Health and Safety, with the insured (although attached to a different site but covering leave) provided a statement dated 2 April 2019 to an investigator retained by the respondent’s insurer in which he stated the following:
“I viewed the CCTV footage of the incident. The room known as the PUR line has CCTV footage. The camera is motion detected. I viewed the footage of this incident. Chadi can be seen in the footage before the incident. He walked over to the line and picked up a bottle. The bottle is believed to be chemicals which would be a cleaning thinner. He walked away and appears to touch his face. He returned with a bag and drink bottle, bends down near the PUR Glue station and then he disappears. There is no footage of the incident as described by Chadi and he cannot be seen walking over the walkway at any time.”
Mr Dayton Arcia, site manager, provided a statement dated 2 April 2019 to an investigator retained by the respondent’s workers compensation insurer in which he stated the following:
“… I suggested to James to bring up the CCTV footage to see what occurred. After viewing the footage, we could not see any person walk across the walkway as described to me and it was not captured by CCTV. We tested the camera while a worker walked access the walkway. The camera was working perfectly and captured that worker walking across the walkway. The cameras are operated by motion and captures any movement in the site. We confirmed that the camera was operating correctly.
We spoke to Joseph and Jarred and asked why Chadi was in that area during his break. They believed he was crossing the bridge to heat up his popcorn. They also mentioned he had a ca of Coke with him. I could see popcorn neatly placed in the centre of the stairs. There was a trail of it. I could not see much anywhere else. I asked where the Coke had gone and they said it had been given to one of the workers with a bag. I believe that may have been James Arbolino, Chadi’s brother in law. I don’t think any of the workers were aware they were related.
…
I went to the microwave see if there was any smell of popcorn. There was none. I searched the bin for the popcorn wrapper and found it. It was a type of popcorn that didn’t require heating.”
Mr Arcia also authored a document entitled “Statement of events as described to me and preliminary investigation” which records the following:
“Both Joseph and Jarrod said they did not witness the accident because they were all having their lunch break.
Joseph said he received a call at 6:14 from Chadi Jomaa & asked him ‘Come back to the line, I need help urgently”.
Joseph said that Chadi explained that he went to the other side of the line via the stairs to heat up his pop corn and get a can from the fridge. As Chadi was coming back down the stairs, he slipped and found himself at the bottom of the stairs in pain & did not remember how he got there. Chadi said he could not feel his legs.
…
At one point I asked James to bring the camera footage up on his phone to see Chadi going across the bridge as he had described and to our surprise the camera never recorded anyone crossing that bridge.
The camera shows Chadi busy during his lunch break, going to the area of the stairs, grabbing a bottle, walking to the rubbish bin. Then he appears walking towards the stairs carrying a bag in his right hand, he spends some time upright at the base of the stairs & then… There is no footage of Chadi ever walking up and/or across the stairs”.
Mr James Davison, production manager, provided a statement dated 2 April 2019 to an investigator retained by the respondent’s workers compensation insurer in which adopts
“a full statement about the matter” prepared on 18 March 2019 which I understand refers to a document created by Mr Davison titled “PUR Employee Incident 15/03/2019” which records the following:
“The version of what I received was that the employee had remained in the area to heat up his dinner from a microwave on the adjacent side if [sic] the line whilst others when for their meal break. The employee travels up and over the stairs to heat up his meal which then returning to the operator (North side) on completion. On the return the employee slips to find himself conscious at the base of the stairs with lacerations to the rear of his head, bruising to the right hand side of his body as well as a loss of feeling to his legs. The employee phone called a colleague (Joseph John) at 18:14 with the following message. Quote: can you come back to the line as I need help urgently.”
Mr Davison reviewed video footage on an iPhone and later on a laptop and recorded the following:
“18:01 Chadi is walking up the southern wall of the PUR line before the footage cuts out.
18:03 Chai [sic] purposely goes to his work station for a bottle of thinners. The footage jumps a little to then Chadi placing his back down and walking away smelling his hands.
18:12 show Chadi in the vicinity of where the incident shortly takes place. Footage shows Chadi cleaning his hands and what appears to be a white rag which is then placed in the waste bin. The actions suggest that the rag was not just thrown in the big but hidden under other material. Chadi then proceeds back to the western end of the line.
18:13 Chadi now has his personal bag in his right hand whist carrying what appears to be a blue container similar to a Ozone water bottle. When arriving in the area where the incident takes place, it shows Chadi pointing this bottle as the ground in a spraying motion. This is captured on the footage at 18:13. Footage jumps after 18:13:27.
18:17 shows Chadi on the floor at the bases of the stairs. Chadi’s personal bag is now placed outside the zone in question.
18:18: Jospeh John casually brings Chadi a chair after receiving the urgent phone call. Jospeh places the chair close by and then proceeds to his personal bag. The footage jumps once again.”

Mr Joseph John, machine operator, provided a statement dated 2 April 2019 to an investigator retained by the respondent’s workers compensation insurer in which he stated the following:
“I have known Chadi Jomaa since he started at Borgs. We are not friends outside of work and I work the same shift as him at Borgs. I get to talk during the shift and also at breaks. We have a break from 6pm to 6:30pm and 9pm to 9:15pm. During my break I usually got to my car and Chadi normally goes to the lunch room.
On the Friday 15 March 2019, I started work at 2:30pm. I was working on my machine. I saw Chadi working his machine. At 6pm I took my break and I sent to my car. At 6:14pm I got a call from Chadi. He said, ‘Please come inside it’s urgent.” I said, “What happened?” he said again, “Come inside it’s urgent.” He didn’t say were to go, just come inside.
I immediately went inside through the door at the merchandising unit. I then got into the UV Line and followed that to the PUR Unit. I saw Chadi laying half on the stairs and half on the floor. I went to speak to him. I saw one show off and that was near he leg. He was conscious but was in pain. I said what happened. He didn’t say anything but indicated with his hand that he fell down the stairs. The stairs are to get over the machine.
I could see when I got there I could see popcorn on the floor and it was scattered over the floor. He also had an open Pepsi can which was on the floor. He had a bag and it was near him on the floor.”
It is uncontroversial, as submitted by the respondent, “that the applicant bears the onus of establishing, on the balance of probabilities, that the alleged injury arose out of or in the course of his employment and that he did indeed fall down the PUR line stairs as alleged”.
It is for the applicant to establish, on the whole of the evidence, a ‘actual persuasion’, in light to the various possibilities, that he fell down the stairs as alleged.[1]
[1] Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [44]-[48].
The applicant asserts that he took his 6.00pm break as usual and it was when returning to the PUR line over the stairs that he fell.
The respondent defends the claim on the basis that the applicant did not fall down the PUR line stairs but rather the alleged injury was fabricated by the applicant motivated by financial gain.
The following factual issues set out by the respondent in their primary submissions are accepted by the applicant and therefore not in dispute:
(a)    the applicant commenced work on 15 March 2019 at 2:30pm;
(b)    the dinner break was scheduled for 6:00pm;
(c)    the dinner break is of 30 minute duration;
(d)    the applicant carried out his regular duties up to the time of the dinner break; and
(e)    after the alleged injury, the applicant called Joseph John for assistance.
The applicant in his submissions accepts his own evidence during cross-examination that his usual routine was as follows:
“usually I will have my dinner 10, 15 minutes then I’ll go to the bathroom and then I have coffee and then I have time to call my wife”[2]
[2] Transcript 35.33-36.03.
This is consistent with the evidence the applicant gave in his statement of 15 March 2019:
“The bell rang for dinner so I ate dinner and I went to go to the toilet, washed my hands and went back to work.”
Only a small portion of the CCTV footage referred to by Mr Moore, Mr Harvey, Mr Arcia and Mr Davison is in evidence before the Commission. Mr Davison provided a brief statement confirming that the CCTV footage was lost when uploaded to cloud storage and couldn’t be recovered.
The applicant accepts the respondent’s description of the available CCTV footage that is in evidence however submits that there is no evidence as to the timing of the footage but it would be open to draw an inference that based on the title of the CCTV footage, the footage in evidence show a period of time between 6.01pm and 6.03pm.
The respondent submits that the first two CCTV files are consistent with what Mr Davison,
Mr Moore and Mr Arcia say can be seen between 6.01pm and 6.03pm and this establishes that the applicant did not leave the PUR line when the dinner break began at 6.00pm but rather stayed until at least 6.03pm.
The first file is titled “15_03_2019 6_01_59 PM (UTC +11_00)”. I accept, having regard to the title of the footage and the contemporaneous records and statements of the Mr Moore,
Mr Harvey, Mr Arcia and Mr Davison who all viewed the footage in the immediate period following the alleged incident, that the footage records the period of time from 6.01.59pm
on 15 March 2019 and that 1 minute 13 seconds into the footage (that is approximately 6.03.12pm) the applicant has returned to the left hand side of the PUR line and is seen picking up an object.
In the second file that appears to immediately follow the first is titled “15_03_2019 6_01_59 PM (UTC +11_00)_0002” and shows the applicant walking away from the PUR line. Neither arriving or leaving does he use the stairs and elevated platform.
Based on the footage and the contemporaneous records and statements of the Mr Moore,
Mr Harvey, Mr Arcia and Mr Davison I accept that the applicant remained on the PUR line until after 6.03pm.
The respondent relies on the notes and statements of Mr Moore and Mr Davison with respect to footage that is not in evidence and has been lost as explained by Mr Davison, submitting that the description of the earlier footage (which is available) was accurate and therefore I would accept that balance of their descriptions of the further footage is also accurate.
The applicant submits that the descriptions of Mr Moore and Dr Davison as to what can be seen in the footage is both inaccurate and misleading and I would not rely on it. The applicant further submits that from the footage that is available and consistent with the evidence of the respondent’s witnesses, the footage “jumps” and does not depict every moment in time.
The applicant takes issue with the description provided by Mr Moore and Mr Davison as to precisely what the applicant was doing or holding in the footage, not that the applicant was depicted in the footage. In relation to what occurred in the available CCTV footage at 6.03pm Mr Moore records that the applicant “looks to be touching a bottle of thinner” and
Mr Davison records the applicant “goes to his work station for a bottle of thinners. The footage jumps a little to then Chadi placing this back down and walking away smelling his hands”.
The applicant submits:
“By contrast the footage that is provided actually showed the “applicant reaching to take hold of some sort of canister” or more accurately reaching for a black rectangular object. There is no footage suggestive of the Applicant “smelling his hands”, though it appears that at one point the applicant was holding a “bottle of thinner” as opposed to any other object (such as a bottle of coke).’ [references in original omitted].
The applicant submits that given the inconsistencies between the footage in evidence and the descriptions provided by Mr Moore and Mr Davidson I cannot rely on the notes to provide an accurate description of the footage that is not in evidence.
The applicant accepts however that the absent footage likely depicts the applicant in the vicinity of the PUR line at around 6.13pm and 6.14pm which accords with the applicant’s own evidence.
The camera recording the CCTV footage sits high within the factory building so as to take in as much of the room in which the PUR line is situated as possible. This means that it is difficult to see precisely what someone might be holding in their hand, beyond the general shape and colour of the item. The description of items is therefore likely informed by the knowledge of the person viewing the footage of the location and the items generally found in that location.
I accept that the notes of Mr Moore and Mr Davidson, together with the notes of Mr Harvey and Mr Arcia are a reliable description, when taken together of who can be seen on the footage, their general location with reference to other objects in the factory and the general movement of their body. I also accept that I cannot place any weight however on their descriptions of items that may be being held or small body movements.
The evidence of Mr Moore, Mr Harvey, Mr Arcia and Mr Davison is consistent with the contemporaneous documents they created immediately following the alleged incident and I accept that the incident was apparently serious and they took seriously the responsibility that it be properly investigated and the findings on investigation accurately recorded.
On this basis, I accept the evidence of Mr Moore, Mr Harvey, Mr Arcia and Mr Davison that further footage they reviewed following the incident showed the applicant return to the
left-hand side of the PUR line at 6.12pm and remained on the left hand side of the
PUR line at 6.13pm.
Having made these findings, I accept that the applicant could only have been absent from the PUR line after 6.03pm and until 6.12pm, a period of nine minutes. What he did during this period is not explained, although it appears unlikely he undertook his usual dinner time routine.
I accept the uncontroversial evidence of Mr John that the applicant called him at 6.14pm and, on the applicant’s evidence, the alleged fall had occurred prior to him calling Mr John.
I further accept the evidence of Mr Moore, Mr Harvey and Mr Arcia that the footage does not show anyone walking across the PUR line access way and the evidence of Mr Arcia that the motion activated CCTV camera was tested and was operating correctly.
Having made these findings, I cannot accept the applicant’s evidence that “the bell rang for dinner so I ate dinner and went to the toilet, washed my hands and went back to work” and that it was in returning to work that he went up the right hand side of the PUR line access way, across and fell when coming down the left hand side stairs. I find that the applicant’s evidence is improbable and unreliable in this regard. Indeed, it is clearly not his evidence, as it would need to be, that having returned to the PUR line at 6.12pm he walked up the left side of the access way, down the right side (for an unexplained reason), back over the top and then falling down the left side.
The applicant had already returned to the left-hand side of the PUR line by 6.13pm where he was seen on CCTV footage viewed by Mr Moore, Mr Harvey, Mr Davison and Mr Arcia. He is then seen to variably bend over largely out of sight of the CCTV camera. Even if the footage had been “jumping”, I accept that the applicant was on the left side of the PUR line by 6.13pm.
I do not accept the submission by the applicant that the fact there was evidence that he was “found” at the bottom of the stairs that this is evidence that he fell down the stairs. This proposition is at odds with the evidence that the applicant was already at the bottom of the left-hand stairs prior to the time of the alleged fall and is illogical.
I am satisfied, having considered the totality of the available lay evidence, that the applicant did not return to the PUR line via the raised access way and fall down the left-side stairs.
The applicant has failed to establish, on the balance of probabilities, that he fell down the PUR line stairs as alleged.
The respondent raises the discovery of a pool of liquid located at the top of the left sided stairs from which the applicant alleges he fell. Having found that the fall did not occur, and the applicant not alleging that there was a relationship between the oil and his fall, it is unnecessary for me to make any finding with respect to the origin of the oil.
The parties have also made submissions with respect to popcorn found in the vicinity of where the applicant alleges he fell. While I have found that the applicant did not return to the crib room to undertake his usual dinner routine at 6.00pm there is no substantial evidence before the Commission as to what the applicant did between 6.03pm and 6.12pm. Mr Arcia gave evidence that when he inspected the area where the applicant fell there was popcorn in the stairs and vicinity. Mr Arcia subsequently found a popcorn wrapper in the nearby bin. Whether the applicant told Mr John and Mr Sinclair that he had remained in the vicinity of the PUR line to heat popcorn is of limited relevance and I make no finding in this regard. However, if it was the applicant who dropped the popcorn, after dropping the popcorn the popcorn wrapper was placed in the bin. If follows as a matter of logic that the popcorn wrapper must have been placed in the bin before the fall and as such, the popcorn did not spill when the applicant fell. In other word, the fact there was popcorn in the vicinity of where the applicant fell, does not assist the applicant.
The respondent makes submissions with respect to the evidence of Mr Arbolino and particularly the weight that can be placed on it however neither party have sought to rely on any evidence given by Mr Arbolino and it is unnecessary for me to comment of any weight that might be given to his evidence.
In finding that the applicant did not fall as alleged, I am mindful that the applicant was transported to hospital by ambulance and was admitted for an extended period.
There is medical opinion which explains, to a satisfactory degree, that the objective pathology found during his hospital admission does not necessarily result from a frank fall. As such, I remain satisfied that the fall did not occur.
The applicant had a significant history of earlier injuries.
It is not in dispute that the applicant sustained a workplace injury in 2008 for which, according to the complying agreement in evidence he received lump sum compensation with respect to 15% whole person impairment and it was conceded by the applicant that he also received $550,000 with respect to a claim for work injury damages arising from the same incident in 2008.
In his statement of 14 May 2024, the applicant gives evidence that he sustained injuries to his chest, back, neck, left shoulder and left wrist when he fell off the tines of a forklift on
23 September 2008.
On 6 February 2009 he underwent a bone graft and scaphoid open reduction on his left wrist.
On 18 December 2009 he underwent an arthroscopy to his right knee and on 12 May 2010 he underwent a right knee reconstruction.
On 8 October 2013 he was injured as a result of an explosion at a mixed business he set fire to, sustaining injuries to his right hip, burns to his back, left arm and face and underwent a right hip replacement. He was convicted of arson and sentenced to two years imprisonment.
On 2 November 2018 he had surgery to his left elbow.
He also states that in January 2019 he had a sore back and went to see his general practitioner.
With respect to the alleged 15 March 2019 incident the applicant states:
“I might have fallen approximately 2 meters down some stairs but cannot remember. My next memory is of regaining consciousness on the floor under the stairs.
I called for assistance because I was not able to stand following the fall. I recall I had blood on my head and right elbow, my left foot was twisted underneath me and my right eye was blurry.
Following the fall I was taken by ambulance to Gosford Hospital where he was seen in the Emergency Room. I stayed in hospital for 2 week.”
A statement is available, dated 29 January 2020, from Ms Skelton, the senior ambulance officer who attended on the applicant immediately following the alleged fall. Ms Skelton is an experienced paramedic and as such I infer she has attends accidents in the course of her duties on a regular basis. I consider she is in a position, given her training and experience, to provide her opinion on the injuries she would have expected from a fall alleged by the applicant. Ms Skelton states:
“I asked him again if he fell from the top and he said “yes”. There was no blood on the ground at all and I don’t recall seeing any liquid on the ground. At no time did I examine the top of the stairs. I also recall him saying words to the effect that he had lost consciousness for a few minutes and that he had no recollection of the events. He appeared confused. This would normally indicate a head injury but there was no obvious indication of head injury such as cuts and that his pupils were equal and reactive. He did complain of pain to the back of his head but there was no cut, bump or swelling.
From memory he was moaning. I asked him what happened and he indicated he had fallen from the top of a set of stairs that was about 2-3 metres in height. I could not see any obvious injuries to him.
I examined his neck and as I did he moaned. I placed a collar on him and attempted to place him on the stretcher with the help of other workers. As we did this he moaned loudly again so at that stage I decided to give him morphine. He was initially given 5 mg. He continued to indicate he was in pain so I gave him a second dose of 5 mg. He continued to complain and moan. 10mg would generally reduce any amount of pain so I decided not to give any more at that time. I conducted a full examination on the ground. I could find no evidence of fractures and I found superficial grazing to his elbows. Those grazes did not require dressing.
…
Generally with a patient with serious injury, the hospital is notified of our pending arrival and in this case we could not find any injury that required us to notify the hospital we were attending.
…
We remained with him [at the hospital] for approximately 1.5 hours. During that time the doctor assessed him. I remember as the doctor and nurse examined him, he moaned loudly every time he was touched to almost every part of his body. The doctor indicated that she would have to order a full body x-ray. I was present when the x-rays were done and I spoke to the radiographer and there was no evidence of fractures.
…
From my experience, a fall of 2-3 metres down metal stairs onto a concrete floor, particularly as he was claiming he was unconscious for a period of time, would generally or usually show some type of obvious injury, being lacerations, bruising or fractures. None of these were evident.”
It is evident from the evidence of Ms Skelton that, with her significant experience as a paramedic, she held reservations as to the extent of the applicant’s pain following his fall where it continued to be widespread despite her administering 10mg of morphine. She also did not consider the applicant presented with the type of self-evident traumatic injuries that she would usually expect in a fall of the nature described by the applicant.
Also before the Commission are the records from the emergency department of Gosford Hospital. The applicant was assessed in the emergency department at Gosford Hospital with a history of a significant traumatic fall and presented with significant injuries. I am satisfied having considered the note of Dr Richmond as well as the records of Gosford Hospital more generally that the applicant was diligently assessed by the medical staff at Gosford Hospital and had there been a significant objective clinical finding that would have been recorded in the records had it been present. Extensive trauma investigations and imagining were undertaken but no objective evidence of significant traumatic injures was found.
The respondent relies on two reports of Dr Powell dated 3 August 2021 and 19 February 2024. Dr Powell took a detailed history with respect to the applicant’s prior injuries and critically reviewed prior records and radiology. Dr Powell has attempted to disentangle the contribution the applicant’s pre-existing conditions may have made to his presentation from 15 March 2019.
With respect to the cervical spine, Dr Powell was of the opinion that examination and imaging did not identify any pathology.
With respect to the lumbar spine, Dr Powell expresses the opinion that the applicant “has multilevel lumbar spondylosis and is now post-operative for L4/5 decompression.” This is a condition of longstanding and has been present since at least 2009 on imaging, and likely to have been developing for many years prior to this. There has been no substantial change in the imaging findings between his initial presentation and imaging closer to the time of the workplace incident to indicate any acute progression or “structural injury” as a result of the incident.

With respect to the right shoulder, Dr Powell expressed the opinion that the imagining changes present can be normal for the applicant’s age.
With respect to the right elbow, Dr Powell expressed the opinion that there was no specific structural injury identified and no specific pathology. This appears to be supported by the comment from Dr Mellick that the applicant had surgery to the right elbow without therapeutic benefit.
With respect to the left knee, Dr Powell expressed the opinion that the imaging changes “are longstanding and indicate a degenerate aetiology…”.
With respect to the left ankle, Dr Powell expressed the opinion that imaging studies were consistent with common findings through the community and there was no indication this was acute arising from 15 March 2019 but rather longstanding.
The applicant relies upon qualified opinions of Dr Ross Mellick dated 8 February 2023 and
Dr James Bodel dated 8 August 2023. Dr Mellick, accepting the history provided to him by the applicant, provided a diagnosis of “impairment of spinal movement associated with
non-verifiable radiculopathy in the right lower extremity” and the opinion that the applicant’s employment “was and continues to be a substantial contributing factor to his injuries”.
Dr Mellick does not interrogate the applicant’s past history nor make any deduction in his whole person impairment assessment for any pre-existing condition. He records that the past medical history includes “a fracture of the left arm in 2008 and an explosion in a shop… in 2023, which resulted in multiple burns and also injuries requiring a total hip replacement on the right site”.
Dr Bodel takes a more complete history of the 2008 and 2013 injuries but then provides an opinion that “the injuries that occurred at work continue to be a substantial contributing factor to his injuries and incapacity for work”. Again though Dr Bodel does not interrogate the extent to which the prior injuries impact on the applicant, accepting the applicant’s history at face value and in assessment whole person impairment comments “There is no indication of any pre-existing abnormality or condition and there is no basis for a deduction for pre-existing impairment”. This is at odds with the evidence including the evidence of injury and impairment from the 2008 incident resulting in an assessment of 15% whole person impairment and payment of a substantial sum for economic loss with respect to the work injury damages claim.
The claimant’s treating neurosurgeon, Dr Marc Coughlan provided a report dated
21 April 2021 to the applicant’s solicitor. He noted a history of a bad fall at work on
14 March 2019 including striking his head. He noted he had significant left knee, hip and shoulder issues as well as right shoulder and orbit issues. He noted the applicant had some very severe left sided neuropathic arm pain and chronic back pain subsequent to the fall. He noted the applicant’s MRI scan showed significant annular tears at L4/5. He recommended a hybrid procedure with an anterior fusion at L5/S1 and a disc replacement at L4/5. He considered the procedure reasonably necessary.
Dr Coughlan’s report does not set out the history he had available to him, particularly with respect to the applicant’s prior back injuries or whether he had examined imaging studies from before and after 15 March 2019 and as such his opinion does not assist.
With respect to the applicant’s eyes and visual system, the applicant alleges in his 2024 statement that as a result of the fall he sustained visual loss and colour loss in his right eye.
Dr Shanel Sharma, ophthalmic surgeon provided a report to the respondent’s solicitor dated 14 December 2023. He takes a history that the applicant awoke finding himself at the bottom of the stairs, with blood on the back of his head and legs and there was blue red discoloration to the outside of his lower eyelid (colloquially known as a black eye). The applicant was not sure when the ocular symptoms commenced.
Dr Sharma expressed the opinion that the applicant was experiencing symptoms of dry eye which accounted for his intermittent blurred vision, epiphora, photophobia and red eyes. He further expressed the opinion that there was no clear mechanism which would explain the injury resulting in dry eye.
Discharge referral notes from Gosford Hospital indicate that applicant was complaining he could only see movement and was seen in hospital by an ophthalmology registrar however no findings made on examination.
Dr Raad, treating optometrist, provided a report dated 8 September 2022. Dr Raad was not asked to and did not provide an opinion with respect to the relationship between any accident and the applicant’s apparently ocular difficulties.
Dr Wechsler provided a report at the request of the applicant’s solicitor. He diagnosed right dry eye syndrome and provided the opinion that “the blow to the back of the head could have affected the nerve supply of the right lacrimal gland and caused his right dry eye syndrome.”
He also diagnosed right posterior vitreous detachment, consisting of a change of hydration of the vitreous gel and results in symptoms of floaters and flashing lights. The doctor noted the condition is often constitutional and occurs at the age of 45 years and onwards. However he provide an opinion that a deceleration injury such as a fall could precipitate a posterior vitreous detachment.
With respect to right dyschromatopsia and constriction of the right computer visual field,
Dr Wechsler considered that the testing results were inconsistent and could not be used for diagnostic or impairment assessment purposes. He did not offer an opinion but recommended further investigation with an MRI.
The applicant’s submissions with respect to injury to the visual system do not engage with the evidence and the applicant only submits “there is a dispute as to whether the symptoms suffered by the applicant in relation to his vision as identified by the respondent at [9.18] – [9.19]. However there appears to be little dispute that an injury occurred.”
The opinion of Dr Sharma provides a sufficient basis to be satisfied that there is an explanation, absent the alleged fall, for the applicant’s complaints with respect to his eyes and visual system.
Having considered the evidence of Ms Skelton, the records from Gosford Hospital and the opinions of Dr Powell and Dr Sharma I am satisfied that having that the fall did not occur that this finding is further supported by medical opinion which provides an explanation for the applicant’s presentation and complaints after 15 March 2019.
It follows that the applicant has not established, on the balance of probability, that he sustained an injury in accordance with s 4 and 9A of the 1987 Act. As such, it is not necessary for the Commission to determine the balance of the issues set out in paragraph 5 above.
There is evidence that as at 15 March 2019 the applicant had minor abrasions to his elbows and knees. No claim has been made with respect to these abrasions, however having made the findings that I have that the applicant did not fall down the PUR line stairs they cannot have occurred as a result of the circumstances advanced by the applicant in these proceedings.

SUMMARY

The applicant did not fall from the stairs leading down from the access walkway over the PUR line on 15 March 2019.
The applicant did not sustain injuries to left foot, left knee, right shoulder, back, eye, left ankle and right elbow in the course of his employment with the respondent on 15 March 2019.
Award for the respondent on the claim for permanent impairment compensation pursuant to
s 66 of the Workers Compensation Act 1987.

[2025] NSWPIC 122

2 April 2025