Orman v RN and CA Reicheldt Pty Ltd
[2023] NSWPIC 421
•18 August 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Orman v RN and CA Reicheldt Pty Ltd [2023] NSWPIC 421 |
APPLICANT: | Ricky Shane Orman |
RESPONDENT: | RN and CA Reicheldt Pty Ltd |
| Member: | Diana Benk |
| DATE OF DECISION: | 18 August 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; whether applicant sustained an injury to his cervical spine and whether the claim for cervical disc surgery is reasonably necessary; section 60 expenses; inaccurate history taken by treating surgeon; subsequent history of injury; assessment of the evidence; Watson v Foxman and Fox v Percy referred to; Held – the applicant has not suffered injury to the cervical spine with the respondent; award for respondent; section 60 expenses. |
| determinations made: | The Commission determines: 1. Award for respondent with respect to claim for injury to the cervical spine. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
Ricky Orman, the applicant, brings a claim against RA & CA Reicheldt Pty Ltd (the respondent) for s 60 expenses, specifically cervical decompression and fusion surgery at the C5/6 and C6/7.
Dispute notices were issued by the respondent and in due course the Application to Resolve a Dispute (ARD) and Reply were lodged with the Personal Injury Commission (Commission).
ISSUES FOR DETERMINATION
The dispute notices declined liability on a number of grounds, and I must now consider;
i) whether the applicant sustained an injury to the cervical spine, and if so
ii) whether the claimed surgical procedure is reasonably necessary?
PROCEDURE BEFORE THE COMMISSION
The matter was heard on 25 July 2023. At conciliation, the respondent invited the applicant to make a claim against the subsequent employer, Patrick Auto Group as the applicant had lodged a claim for an incident involving the neck on 18 June 2020.[1] The Respondent emphasised it would rely on section 16 of the Workers Compensation Act (1987) (the Act) and that in joining the subsequent employer, the applicant could secure a remedy, however it was not liable. The invitation was declined by the applicant and I was asked to determine the matter.
[1] Claim Number 3096589.
The applicant was represented by Mr Hanrahan of Counsel, instructed by Mr Simpson. The respondent was represented by Mr Young of Counsel instructed by Mr Lott.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) ARD and attached documents;
(b) Reply, and
(c) Applications to Admit Late Documents (AARD) filed by both the applicant and respondent on 12 July 2023 and 20 July 2023 respectively.
Oral evidence
No application was made in relation to oral evidence.
SUBMISSIONS
Applicant’s submissions
Extensive submissions were made summarised as follows;
i) The only issue is whether the neck condition is compensable. There are three alternatives;
-firstly, that I could find a frank injury;
-secondly, I could find there is a consequential injury arising from the accepted injuries including the right shoulder and elbow;
-finally, I could possibly find that there has been an injury to the neck as a result of frank injury and consequential injury.
ii) That, if I find that the neck was injured in the accident on 23 January 2017, s 9A of the Act and specifically the substantial contributing factor test needs to be satisfied, and if satisfied, in the absence of any other evidence to the contrary, the only cause of the injury is the workplace accident.
iii) If consequential injury is found, s 9A need not be satisfied but I would need to apply the ‘common sense’ test and satisfy myself on the various tests for causation, including the ‘but for’ test, that is, would the applicant have neck symptoms but for the accident on 23 January 2017?
iv) That the lack of contemporaneous complaint or treatment to the neck should not be fatal to the applicant’s case as this is explained by his statement that his initial focus was on the right shoulder and elbow. The applicant had reported symptoms to his doctor who focused on the main presentation.
v) There is a connection between the original injury to the right elbow and right shoulder and given the mechanism of injury, that is the involvement of a 400kg beam, it follows as a matter of common sense that the neck is also involved.
vi) It is more likely than not that there was a trauma to the neck in the accident, manifested in symptoms that were not a priority at the time.
vii) There is nothing of substance in the respondent’s case that suggests a substantial competing theory for causation.
viii) The evidence of the respondent confirms that the surgical treatment proposed by Dr Singh is an appropriate course of action, although there is a dispute on causation.
ix) The relevant matters according to the reasonableness for treatment pursuant to s 60 of the Act, as noted by Deputy President Roche in [88]-[89] Diab v NRMA Ltd,[2] are satisfied. It is trite law to say that there can be multiple causes for the need for surgery; however, the underlying truth is that the serious injury in 2017 remains the material indication for this treatment.
x) The subsequent notification of injury on 18 June 2020, whilst employed by Patrick Auto Care is of little relevance as the applicant did not take time off work following that episode and symptoms resolved quickly and returned to their pre injury state.
xi) It is futile to rely on the clinical notes as the applicant did not report his neck symptoms as his primary focus was the rehabilitation of the right shoulder which has undergone no less than three surgical procedures. Further the clinical notes confirm the applicant has a lack of confidence in medical specialists.
xii) The reports of Drs Lim, Singh and Khong provide more than ample evidence that the applicant sustained a neck injury on 23 January 2017 or alternatively a consequential injury.
[2] [2014] NSWWCCPD 72 (Diab).
Respondent’s submissions
The respondent’s submissions are summarised as follows;
i) That the applicant bears the onus of proof and has not discharged it as the evidence does not show that on the balance of probabilities, he sustained a neck injury on 23 January 2017.
ii) The applicant has not pleaded a ‘consequential injury’ to the neck, rather frank injury. Further there is no medical evidence to support any consequential injury and so that claim must fail.
iii) The applicant’s statement should be given little weight as it was written six years after the injury and is inconsistent with the injury notification and workers injury claim form, documents completed immediately after the injury, and which did not mention symptoms or injury to the neck. His 2022/2023 statements of “serious neck symptoms” since the 23 January 2017 are unsupported by the medical evidence and specifically his Total and Permanent Disablement Claim made in June 2020 is silent on any neck symptoms impacting him, thereby rendering his current reflection of “serious neck symptoms” not credible, which is not considered deliberate but rather somewhat confused due to the passage of time and other factors.
iv) There are no medically verified complaints of neck injury or symptoms between 23 January 2017 until October 2018 at which point the applicant was referred for a CT scan with what appears to be in connection with a possible brain injury; however, no diagnosis was made at that time.
v) The reports of Dr Lim, Dr Singh and Dr Khong are inaccurate as they have not taken a proper history of the neck symptoms and specifically the subsequent workplace injury on 18 June 2020 whilst employed by Patrick Auto Care.
vi) Dr Bentivoglio takes a correct history of prior problems but was not informed about the subsequent injury to the cervical spine on 18 June 2020.
vii) The respondent accepts that clinical notes are not determinative on the issue of injury – Davis v Council of the City of Wagga Wagga[3] and it is accepted that busy doctors sometimes misunderstand or mis record histories of accidents, particularly in circumstances “where their concern is with the treatment or impact of an indisputable, frank injury”, however in this case despite two different general practitioners, the involvement of a specialist and treating physiotherapist, there is no complaint of neck pain arising out of the incident on 23 January 2017 but there are multiple complaints or entries regarding neck symptoms following the June 2020 injury with the subsequent employer. It makes no sense that the medical practitioners would ignore any neck complaint after the 2017 injury but then make frequent reference to such complaints after the 2020 injury and then relate it back to the 2017 injury.
viii) The applicant must show that the injury he sustained materially contributed to the reasonable necessity for the surgery proposed for the cervical spine and he has failed to do so, Murphy v Allity Management Services Pty Ltd[4].
ix) That the subsequent injury to the cervical spine for which a claim was made arising out of lifting events on 18 June 2020, invokes the application of s 16 of the Act as the evidence demonstrates the applicant suffers from a disease process which has been aggravated, accelerated, exacerbated or deteriorated by that event and so it follows that compensation is payable by the employer who last employed the worker, which is not this respondent.
FINDINGS AND REASONS
Injury
[3] [2004] NSWCA 34.
[4] [2015] NSWWCCPD 49 at [58].
Applicant’s statement
In a supplementary statement dated 11 July 2023,[5] the applicant explains the nature of his injury relevantly (unedited):
“10. On 23 January 2017 I sustained a right shoulder and cervical spine injury in the course of my employment with the respondent by trying a stop a one tonne steel ‘I beam’ from falling. This injury caused severe and ongoing pain and damage in my right shoulder and cervical spine (my emphasis) that has ultimately resulted in my need for a cervical fusion which has yet to be approved by the respondent.
11. At the time of reporting this to my Nominated Treating Doctor at the time, Dr Deon Mostert, I explained that it felt as though the accident did not just affect my right shoulder. Dr Mostert, however, only referred me for scans on my right shoulder. When I eventually underwent the CT scan of my cervical spine on 4 October 2018 (approximately 18 months before the events at Kildarius Pty Limited), it showed that I had suffered a cervical spine injury.
12. Approximately 3 years later, I was employed by Kildarius Pty Limited as a mechanic. On 18 June 2020 while I was picking up a quad bike tyre, I further aggravated my right shoulder injury. This was a minor injury that was only resulted in temporary elevated pain for approximately one week and did not result in any lost time from work. After the pain subsided, I went back to experiencing the same levels and frequency of pain as I felt prior to this incident (my emphasis)
13. Although both injuries occurred to my right shoulder and cervical spine, based on the levels of pain and actual damage that occurred as a result of these two injuries, I consider the January 2017 injury with RN & CA Reicheldt Pty Ltd to be the far more substantial injury to my current condition.”
[5] AALD filed 12 July 2023.
Claim form for compensation
The injury claim form completed on 31 January 2017 records injury only to the right elbow (forearm and right shoulder).[6]
[6] ARD folio 5.
Nominated treating doctor’s notes
The evidence shows the applicant was treated predominantly at the Good Shepherd Medical Centre[7] and the applicant has been a patient at that practice since at least 26 October 2014.
[7][7] Clinical notes commence at AALD 1 to 82.
It is undisputed that the applicant had a history of cervical symptoms as early as 9 January 2016[8] diagnosed as possible cervical radiculopathy? thoracic radiculopathy by Dr Sivasambu for which a plain X-ray was ordered.
[8] Folio 3 AALD.
The initial presentation following injury is recorded on 23 January 2017 where Dr Truong records:
“hurt arm at work.. flipping a portable trolley with steel beam on it (8m length x 0.3mm thick), the tool slipped, grabbed it, it fell on the floor. This tool weight 400kg. Holding the downward force of 400kg with the elbow flexed, shoulder anterior elevated..heard a crack at the elbow. No numbness no pins and needles…” [9]
[9] Folio 5 AALD.
Review of the clinical records of the practice confirms no complaint of neck symptoms until October 2018. Following a diagnosis of traumatic brain injury[10] the applicant was referred for a CT of the cervical spine. The findings on 11 October 2018[11] report “stenosis and loss of definition of the C6 nerve roots on both side and at the C6/7 level moderate to marked bilateral C7 neural exit foramen stenosis due to uncovertebral osteophyte encroachment more pronounced at the C6 level.” (No complaints or presentations relating to the neck are recorded beyond this date for a period of more than 20 months.)
[10] Folio 7 AALD.
[11] Folios 7 and 8 of the AALD
An entry on 18 June 2020[12] records subsequent workers compensation injury “picking up quad bike yesterday – felt strain RT psot [sic] neck radiating to shoulder’. On examination it was reported …painfulll [sic] Rt post cervical, tender shoulder Rt – ac joint, tednre [sic] trap and paracervical Rt C3-6”.
[12] Folio AALD 15.
Ongoing attendances continue for both general medical conditions and work related shoulder complaints and on 25 June 2020 there is a record by Dr Mostert reporting “shoulder plain slight better – slight neck pain”.[13]
[13] Folio 16 AALD.
The records show the applicant again presented for “cervical radiculopathy” on 27 September 2020,[14] and for ongoing neck pain on 20 November 2020,[15] 20 January 2021,[16] 27 January 2021,[17] 26 February 2021,[18] 26 April 2021,[19] 17 May 2021.[20]
[14] Folio 20 AALD.
[15] Folio 22 AALD.
[16] Folio 23 AALD.
[17] Folio 24 AALD.
[18] Folio 25 AALD.
[19] Folio 26 AALD.
[20] Folio 28 AALD.
On 7 December 2021, Dr Rahman recorded “wc rt shoulder inj/neck injury and references this to an event at the workplace on 17/6/2021 – post lifting havy [sic] load.”[21] A similar entry is made on 7 February 2022.[22]
[21] Folio 35 AALD.
[22] Folio 37 AALD.
Dr Anthony Wan on 6 February 2017[23] referred the applicant to Mr Mark Matheson for opinion and management, stating (unedited)
“Rick has sustained an injury to his R elbow and R shoulder in a workplace accident approx. 2 weeks ago. XR was unremarkable and I have ordered an US for him. Clinically, supraspinatus impingement test was positive in the shoulder. He also reports pain on resisted wrist extension suggestive of lateral epicondylitis. I would appreciate your input regarding stretches and exercises for him under WorkCover.”
[23] Folio 41AALD.
The records produced by the Good Shepherd Medical Centre also contain reports from orthopaedic surgeon, Dr Liaw and the physiotherapist, Paul Seward who confirm treatment to the right upper limb only. The reports do not contain complaint of any neck symptoms.
Dr Mostert in an early release of super – permanent incapacity medical report; dated 24 June 2020 certifies the applicant as suffering from “rotator cuff tear…supraspinatus tear, OA right shoulder”. [24] There is no mention of neck symptoms.
[24] Folios 46 and 47 AALD.
On 20 November 2020, Dr Mostert reported to EML with regards to claim number 3096859 relating to a date of injury 18 June 2020 stating (unedited)
“Pt noted 18/6/20 – picked up ATV tyre and felt pain strain in Rt shoulder/neck.
He is not improved much, physio more concentrated on shoulder. Will motivate more in depth treatment for neck. MRI has shown C5-6-7 foraminal stenosis”.
Lachlan Medical Centre
Clinical notes commence on 13 February 2017 and cease on 19 May 2018 and record eight presentations. None refer to neck/cervical pain.[25]
[25] Folios 105 to 112 of the ARD.
Dr Singh, treating surgeon
In the report dated 17 June 2022, Dr Singh confirms that the decompression and fusion is the recommended and accepted mode of treatment and further states:
“He has structural pathology in the cervical spine with loss of disc height and disc bulging with foraminal compression of the exiting nerve roots. This is related to the injury sustained in the workplace in 2017 when he was lifting a heavy steel girder on his shoulder which slipped. Work is the main contributing factor to his condition.
In my opinion he has concomitant injury to the neck and the shoulder. The symptoms from cervical and shoulder injury frequently overlap. He has persistent symptoms after shoulder reconstruction. The symptoms have responded to the cervical injection temporarily. This injury occurred at the time of his work related injury in 2017. At that point likely he had ongoing shoulder symptoms which were arising from both the cervical spine as well as the shoulder. It is also possible that the shoulder pain may have mastered (sic) the cervical pain, and the cervical pain has not been unmasked following shoulder reconstruction. In my opinion there is a causal relationship between the cervical spine symptoms and the work related injury in 2017.”
Medico-legal opinion – Dr Khong, neurosurgeon
Dr Khong in his report dated 22 February 2023[26] notes a previous injury to the upper limb in 2012 which recovered following surgery. He then records the injury on 23 January 2017 when
“when he tried to turn the beam with a beam handling tool. It slipped out and he used his left hand to catch it. The beam overbalanced and fell whilst he was still holding it with his right hand. He experienced right sided neck and shoulder pain. … He stopped working in November 2020…. The diagnosis is bilateral neck pain, worse on the right, with some radiation down the right arm, due to an exacerbation of the degenerative changes in his cervical spine as a result of the work-related injury….A C5/6 and C6/7 anterior cervical decompression and fusion is reasonably necessary”.
[26] Folios 13-18 of the ARD.
Dr Lim, general practitioner
Dr Lim first assessed the applicant on 9 February 2022 and takes a history that the applicant sustained neck and right shoulder injury after a tool slipped causing a steel beam to overbalance and fall. He also records the injury on 17 June 2020, when the applicant “lifted up a tyre and aggravated his shoulder pain”. He concluded “he sustained neck/right shoulder injury after a tool slipped causing a steel beam to overbalance and fall. Work was the main contributing factor to their injury [sic].[27]
[27] Folios 23-24 ARD.
Dr Bentivoglio, consultant neurosurgeon
Dr Bentivoglio in his report dated 25 July 2022[28] confirms pre-existing symptoms in the cervical spine prior to 23 January 2017 and considered
“the neck pain is degenerative in nature and there has been a long history which pre exists the work injury of degenerative disease in his neck shown by a simple x-ray of his neck done on 9 January 2016, a year before the work injury… CT scans and MRI scans all show equivalent degenerative disease as shown on the plain x-ray in his neck… he does maintain that he did start getting some neck pain from 23 January 2017…. The neck injury appears to have exacerbated the pre-existing degenerative disease, but I think the underlying problem now is the degenerative disease and not the work related injury…. I do not believe his work has been the main or substantial contributing factor to the degenerative disease in his cervical spine. He may have got a mild exacerbation of that but that would have settled after 6 months and the fact that no one’s really done any true investigation since a CT scan done 18 months after the injury and an MRI scan done 5 years after the injury makes me feel that the neck has not been a major contributing factor”.
FINDINGS AND CONCLUSION
[28] Folios 27-35 of the Reply.
On the basis of the submissions and documentary evidence I find:
i) the applicant had pre-existing degenerative changes diagnosed in the cervical spine as early as 2016;
ii) he suffered workplace injury on 23 January 2017 at which time the claim form and initial presentation to the general practitioner recorded that he sustained injury to the right elbow and right shoulder;
iii) medical evidence immediately after the injury on 23 January 2017 confines injury to the right upper limb and treatment and investigation was confined to the upper limb;
iv) the applicant was referred for a CT scan of the cervical spine in 2018 following a consultation for traumatic brain injury and this is the first record in the clinical notes of any such complaint to the neck post the 2017 injury;
v) the applicant continued to receive treatment both from his orthopaedic surgeon and physiotherapist entirely directed to the right upper limb;
vi) the applicant ceased his employment with the respondent and commenced employment with Patrick Auto Care shortly after the injury;
vii) the applicant sustained an injury to his cervical spine and right shoulder on 18 June 2020 whilst employed by Patrick Auto Care and a claim was made on EML – claim number – 3096859, and
viii) following the injury on 18 June 2020 the applicant had multiple presentations to his general practitioners where symptoms in the cervical spine are recorded and the tribunal finds that the frequency of such complaints and consultations were far greater than any following the 23 January 2017 injury. (Between October 2018 and June 2020, there was no complaint recorded in the clinical notes available of cervical spine/neck pain.)
The applicant reinforces that I must find that an injury to the cervical spine occurred on 23 January 2017 or consequentially and further that it follows that the surgery must be approved. It was reinforced the applicant is a stoic individual, a hard worker who does not complain and has little trust in the medical profession. It was reinforced that I should not rely on the absence of complaints in the clinical notes but rather look at the nature of the injury and apply ‘common sense’ that the applicant would have sustained trauma from the weight of the beam that was the subject of the injury. (On this point, I note the inconsistency concerning the weight of the beam. There are variable weights recorded ranging from 400kg to one tonne, however nothing turns on this).
I disagree because:
(a) There is no medical evidence that the applicant sustained an injury to the cervical spine at the time of injury to the right upper limb on 23 January 2017. I accept that the applicant sustained significant trauma to the right shoulder requiring at least three surgical procedures and had been managed by two general practitioners, an orthopaedic specialist and physiotherapist, none of whom referred to or treated the neck.
(b) I accept that the applicant underwent investigations to the cervical spine in 2018 but this followed assessment for a traumatic brain injury. The treating practitioner did not prescribe the investigation or record its need to arise from the shoulder pathology or the initial injury. I also cannot ignore that there was no ongoing complaints or treatment directed to the neck/cervical spine for a period of more than 20 months until the injury in June 2020.
(c) The applicant’s supplementary statement reinforces that he sustained “severe and ongoing pain and damage in my right shoulder and cervical spine” from the time of the injury on 23 January 2017, however despite the complaint of severe pain in the cervical spine, there is no record of any complaint to either his treating specialist, treating physiotherapist or indeed the two medical practices that he was attending.
(d) The applicant’s statement addresses the issue of subsequent injury on 18 June 2020 but maintains that he had no time off work and symptoms returned to their pre-injury state about one week after the event. I find that this is at odds with the clinical notes which record ongoing complaints to the cervical spine after this injury, complaints which were not previously recorded prior to this event. Whilst I accept that medical practitioners may not always thoroughly record or document the reason for presentation to the clinic, I cannot accept that the medical practitioners failed (for whatever reason) to record continuous ‘severe’ symptoms in the neck and cervical spine for a period of almost three years and then start to record them with frequency following June 2020, which co-incides with the subsequent injury. I conclude on the evidence that the absence of records relating to the cervical spine/neck with any frequency prior to June 2020 is because no complaints were made.
(e) Further, the applicant’s statement of “severe pain” in the neck is difficult to reconcile in the absence of regular complaint to his general practitioner’s following the injury in January 2017. To be clear, the applicant had multiple presentations to his general practitioner’s, specialist and physiotherapist and indeed his unrelenting complaints and difficulties in the right upper limb are recorded thoroughly. More so, the statement of ‘severe pain’ is difficult to reconcile as it did not feature in the total and permanent disability claim made in June 2020. If the pain was as severe as claimed, logic (and I am loathe to use that term) would suggest that such symptoms would have been incorporated in such a significant claim, and more so that such severe pain would have been addressed by his treating practitioners between 2017 and 2020.
(f) I appreciate the applicant has support for both the injury and the need for surgery by Drs Lim, Khong and Singh however I find that the findings and conclusions of these practitioners are based on an incorrect factual scenario, in that Drs Khong and Singh were not informed of the 18 June 2020 injury. Dr Lim takes a history of that injury but confines symptoms to the right shoulder only. (This is not correct as documentation from EML (the insurer for the subsequent employer) clearly refer to a claim made for neck complaint). Given the incorrect factual history, the doctors have not had an opportunity to properly assess the chronology of events and the contribution of the impact of the 18 June 2020 injury (regardless of how minor it may have been). It follows that I cannot accept these opinions and they do not assist me in the assessment of ‘injury’. Dr Singh has concluded that the neck symptoms were masked by the right shoulder symptoms and that frequently symptoms in these areas overlap. He also states that the symptoms are concomitant. I would generally accept such an opinion, however, cannot do so in these circumstances for the reasons outlined above.
(g) Likewise, Dr Bentivoglio also was not given a history of the 18 June 2020 event. He reports symptoms arising from degenerative disease in the cervical spine and considers that the disease may have been temporarily aggravated by the events on 23 January 2017 but maintains that current presentation is entirely due to the underlying disease process. I also find that Dr Bentivoglio was not given an accurate history of the injury at the time of his assessment and so that report is also unhelpful with regards to my assessment of ‘injury’.
(h) As regards the claim for consequential injury, there is no medical evidence to support such a claim. The respondent maintains that I cannot consider such an injury as it had not been pleaded. Strict pleading is unnecessary in the Commission and so this argument is rejected. I would not compromise an application on account of a procedural issue that could possibly be corrected by an amendment. However, I find there is no medical evidence to support consequential injury as the bulk of the evidence suggests symptoms emanate from frank injury on 23 January 2017.
(i) Finally, I must turn my mind to the credibility of the applicant. The respondent did not accuse the applicant of fabrication, rather hypothesised the lapse of time prevented accurate recall, particularly given history of the applicant’s lack of faith in the medical profession, difficulty adjusting to his injury, intensive rehabilitation relating to the right upper limb and confusion due to the involvement of multiple insurers. I agree. In such cases, where the applicant makes a statement more than six years after an injury, and where such statements are at odds with the documented chronology of events and treatment, especially where there is a factual dispute, I prefer the corroborating medical evidence and full evaluation of events since the original injury. I would consider it unfair and unjust to analyse each piece of corroborating evidence individually and/or independently (that is, I have not cherry picked the evidence) rather globally assessed the information hence the exhaustive summary of events recounted in paragraphs 10 to 28 of these reasons. At this point, I have also found it useful to refer to three statements of principle about the difficulty of resolving disputed historical issues of fact, particularly where there is a conflict. Relevantly.
In Watson v Foxman[29] McClelland CJ in Eq said:
……All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.”
In Fox v Percy[30] the High Court of Australia said:
“Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.”
The Hon Michael Kirby AC CMG in 2018 wrote an article in which he said:
“Now deference to the judicial impression of witnesses is a last consideration, after exhausting any relevant contemporaneous evidence and analysis of the inherent logic of the proved facts. Technology is coming to the aid of the law and the courts. The endless stream of emails and text messages, all phone location records, and other objective testimony makes it much less usual for judges and decision-makers now to rest their conclusions on the fragile foundation of human assessment of truthfulness based on witness appearances. In my view, this is a desirable change in the appellate instruction about the processes of judicial reasoning about contested facts. Analysis of the detailed evidence and the logic of the circumstances will trump judicial impressions unless the judge has no other way to decide between the evidence of the parties.”
[29] (1995) 49 NSWLR 315
I have given greater weight to the documentary evidence, largely due to the matters raised by the respondent with regards to credibility. Given my assessment of global evidence, my preference and weight given to the contemporaneous records, objectively established facts and apparent logic of events, (specifically the medical evidence of the treating practitioners at the time of both the 2017 and 2020 injuries and subsequent claims), I find the applicant did not sustain an injury to the cervical spine following the event at work on 23 January 2017. It follows that I do not have to turn my mind to the issues found in section 60 of the Act.
As an aside, even, if I was able to find ‘injury’, I could not ignore the subsequent events on 18 June 2020 and, given the documented pathology and frequency of complaints thereafter, a disease finding would likely be made resulting in liability resting elsewhere. It is unnecessary to expand on this matter for the purposes of these reasons as it is not a matter before me.
SUMMARY
For the above reasons, I find the applicant has not established that he has suffered or sustained an injury to the cervical spine on 23 January 2017, and the Commission will accordingly make the findings and orders set out on page 1 of the Certificate of Determination.
[30] [2003] HCA 22 at [33]
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