Ovens v WITS Holdings Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ovens v WITS Holdings Pty Ltd [2025] NSWPIC 222
APPLICANT:	Eric Ovens
RESPONDENT:	WITS Holdings Pty Ltd
MEMBER:	Diana Benk
DATE OF DECISION:	21 May 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation for the lumbar and thoracic spine, and left shoulder; no dispute regarding lumbar spine injury; whether the applicant sustained a frank injury to the thoracic spine and left shoulder in workplace events; dispute between current recollection of events and contemporaneous materials; Held – worker suffered injury to his thoracic spine; award respondent for the injury to the left upper limb (left shoulder) as not satisfied on the balance of probabilities that there has been an injury; no evidence of sudden or identifiable pathological change; Kennedy Cleaning Services Pty Ltd v Petkovska; fallibility of memory; Watson v Foxman, and Onassis v Vergottis discussed; lumbar spine and thoracic spine impairment to be assessed by a Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained an injury to the lumbar spine on 3 August 2004. 2. The applicant sustained an injury to the thoracic spine on 3 August 2004. 3. Award respondent with respect to the claim for injury to the left upper limb (shoulder). 4. The matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment (WPI) as follows: Date of injury: 3 August 2004. Method of assessment: WPI. Body system/part: lumbar spine and thoracic spine. 5. That the Medical Assessor be provided with the following: (a) Application to Resolve a Dispute and attachments, and (b) Reply and attachments. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

On 3 August 2004, Eric Ovens sustained a workplace injury whilst employed by WITS Holdings Pty Ltd (the respondent). Now, two decades later he claims lump sum compensation in respect of a 12% whole person impairment (WPI), combined to include 1% WPI for the left upper extremity (shoulder), 5% WPI for the thoracic spine and 6% WPI for the lumbar spine.
The insurer has accepted liability for the lumbar spine. It disputes injury to the left shoulder or thoracic spine.
The denial of liability resulted in the filing of an Application to Resolve a Dispute (ARD). The matter underwent the usual case management pathway ultimately proceeding to conciliation/arbitration on 15 May 2025. Attempts to conciliate were unsuccessful.
At conciliation/arbitration, Mr King of counsel instructed by Ms Campbell represented the applicant. Mr Rickard of counsel instructed by Ms Woods represented the respondent.
Ms Slade was the insurer’s representative.
During the course of decision making, I had regard to the ARD, the Reply and submissions of counsel. No oral evidence was called.

ISSUE FOR DETERMINATION

Parties agreed the issue for determination was;
(a) whether the applicant sustained injury to the thoracic spine and left shoulder.
Parties accepted subject to findings, the next appropriate pathway was referral to a Medical Assessor.

RELEVANT LAW

The law relevant to this application is found in the Workers Compensation Act 1987 (the 1987 Act).

Applicant’s position – evidence and submissions

In his statement dated 27 February 2025,[1] the applicant states;
(a)    he was a professional long haul semi-trailer driver;
(b)    on 3 August 2004 he was required to unload large concrete panels which were located on an A frame. Each panel weighed approximately 3 ½ tonne. During the course of moving these panels, one panel struck him on the left side causing injury to his left shoulder, left side of the head, ribs, left hip, left leg and had landed on his left foot pinning his foot to the ground.   He collapsed and his next recall was being in an ambulance on route to Liverpool Hospital;
(c)    he was discharged from the hospital on 8 August 2004 and recalls being treated for the left foot, ribs, left ear, left side of the head, left shoulder, left thigh, punctured lung which included a left sided pneumothorax, back injury and pain in the lower chest wall;
(d)    he returned to work on 7 October 2004 on full duties;
(e)    the injury to the left ear resulted in hearing loss and hearing aids were supplied by the respondent’s insurer. The left sided pneumothorax fortunately resolved by itself although breathlessness can still be present. The left foot, resolved without treatment. In 2017 he was diagnosed with left shoulder supraspinatus and has had physiotherapy. The back pain has been managed conservatively;
(f)    treatment was largely self-directed and conservative with pain medication;
(g)    the injury prevents prolonged sitting, impacts lifting and pushing and pulling. He enjoyed an active lifestyle prior to the claim and can no longer run long distances, and
(h)    there were no other accidents or injuries relating to these areas.
[1] Folio 3 to 10 of the ARD.
Workers Compensation Claim forms and Employees report of injury completed the day after the injury (4 August 2004) confirm the mechanism of injury as relayed above and the areas of injury as “cracked rib, punctured lung and bruising, upper body”.[2]
[2] Folio 12 to 17 – ARD.
The notes of Liverpool Hospital confirm investigation of the chest and pelvis,[3] CT of the head,[4] left foot and left femur X-ray and CT scan of the brain[5] and chest X-ray.[6] The reason for admission was recorded as “L pneumothorax”.[7]
[3] Folio 45 – ARD.
[4] Folio 46 – ARD.
[5] Folio 48 – ARD.
[6] Folio 50 - ARD.
[7] Folio 83 – ARD.
Admission notes record the presenting problem as;
“3 tonne concrete wall fell on patient, being hit on L side of head, L chest/back and L foot. Principle diagnosis L pneumothorax, #l rib 6 posteriorly, #base of l 1^st distal metatarsal.”[8]
[8] Folio 85 – ARD.
Ambulance record dated 3 August 2024 was consistent with the notes recorded on admission by the hospital. [9]
[9] Folio 86-87 – ARD.
Trauma notes of the Liverpool Hospital at the time of admission confirm (unedited):
“L chest abrasion
Scalp hematoma
Head – 4cm hematoma behind L ear
Neck – no tenderness
Chest – nil tenderness anteriorly
Abdo – soft non tender
Pelvis – ok
LL – bruised/tender base of L big toe
Back – large abrasion, L lower chest wall and mod tenderness
Small L pneumothorax
# L 7^th rib
Neck cleared clinically and radiologically”
Similar findings were recorded on 9 August 2004[10] with the applicant discharged from care on 8 August 2004.
[10] Folio 94 ARD.
Clinical notes of the Albury Wodonga Family Medical Centre[11] confirm the applicant has been a patient since at least 2003. The notes record the pneumothorax in 2004.[12] Multiple attendances are recorded at the practice, most relating to private medical matters unrelated to this claim.
[11] Folio 141 to 292.
[12] Folio 141 ARD.
On 26 October 2015, the applicant was assessed by general practitioner Dr Biplab Deb for a truck driving medical assessment. It was recorded (unedited):[13]
“no neck pain. No back pain. ..
No arm weakness. No leg weakness. No arm numbness. No leg numbness. No foot drop.”
[13] Folio 165 ARD.
On 1 July 2016 Dr Kumar performed a heavy vehicle medical assessment and recorded[14] (unedited):
“no neck pain. No back pain. No shoulder pain. No hip pain. No elbow pain, No knee pain. No wrist pain. No ankle pain. No hand pain. No foot pain. No painful toes. No injury. Normal sleep….”
[14] Folio 168 ARD.
At a consultation on 25 September 2017, Dr Deb recorded[15] (unedited):
“wake up with pain in rt elbow and also left shoulder blade few days ago while doing wt lifting running and exercise
o/e BP 120/80 tender in left supraspinatus and also rt olecranon bursal area.
Diagnosis
Right olecranon bursitis
Supraspinatus tendinosis”
[15] Folio 170 ARD.
Clinical notes produced by the Gardens Medical Group Albury relate to pre-employment medicals only. There are no entries pertaining to injury or treatment to any of the areas the subject of this claim.[16]
[16] Folio 293 to 295.
Clinical notes of the Tristar Medical Group[17] record a presentation for back ache on
[17] Folio 296 to 313 ARD.
[18] Folio 300 ARD.
[19] Folio 301 ARD.
[20] Folio 306 ARD.
17 July 2018[18] and 9 October 2020.[19] The new patient medical history denied any muscular/skeletal (arthritis/muscle/joint pain) as at 12 February 2017.[20]
Dr Hopcroft, general surgeon, was qualified by the applicant and reported on 20 July 2021.[21] In summary he records:
(a)    the applicant was knocked on the left side of his head, shoulder and thigh;
(b)    he refused tablets and self-managed with exercise and deep tissue massage to his back fortnightly and monthly;
(c)    he engaged in regular exercise (having a specific hobby of bodybuilding) and relied on chiropractic and physiotherapy to improve back pain;
(d)    he overcame significant injury to the shoulder because of his regular interest in body building and exercise, thereby only having a minimal terminal restriction in the left shoulder in flexion and abduction;
(e)    that a result of the glancing blow by a falling very heavy (3 tonne) concrete panel in the work related accident of 3 August 2004 he has post-traumatic changes in his left shoulder and lumbar spine and an undiagnosed wedge compression fracture of his upper thoracic spine to account for his ongoing and significant left pectoral pain;
(f)    he deferred impairment assessment until radiology became available.
[21] Folio 31 to 40 ARD.
In a supplementary report dated 21 September 2021[22] and following review of investigations particularly an X-ray of the thoracic spine, Dr Hopcroft concluded;
(a)    the scoliosis present in the thoracic spine was now post-traumatic following the injury suffered to his left shoulder in the massive blow from the falling concrete panel on 3 August 2004;
(b)    regular core muscle strengthening and top level fitness were responsible for symptom management arising from his thoracic spine, and
(c)    there were no other factors relevant to his presentation.
[22] Folio 43 ARD.

Submissions

On behalf of the applicant it was submitted:
(a)    the applicant is credible. The claim of injury to the thoracic spine and left shoulder have been established.   True, there is a paucity of contemporaneous evidence relating to these areas but the nature of the injury and the focus on the severe rib fractures, leg injury and pneumothorax account for the lack of contemporaneous reporting;
(b)    the claim form demonstrates the injury was predominantly to the left side. Given this, there should be no difficulty accepting the applicant sustained an injury to the left shoulder;
(c)    the reports of Liverpool Hospital refer to back pain only. Given the applicant fractured his 6^th rib, it is not unreasonable to infer that any reference to back pain includes both the lumbar and thoracic region.   Neck pain was excluded in the notes;
(d)    the applicant is a stoic individual who has just “got on with it”. He is committed to physical fitness and is adverse to medication and preferred to self-manage with a commitment to fitness and exercise;
(e)    the respondent’s evidence suggests that there was no injury to the thoracic spine or left shoulder but this stance represents a narrow interpretation of the facts and fails to take into account the severity and nature of the injury;
(f)    it must be kept in mind that the injury/impairment to the shoulder and thoracic spine is only minor.   This is consistent with the applicant’s lack of complaints to his doctor.   This however does not translate to the fact that there was no injury, rather the focus of his treating professionals was on the acute trauma following the massive blow by the concrete block;
(g)    the applicant underwent MRI of the left shoulder on 7 June 2021 and the indications for the investigation were “heavy object hit left shoulder caused a pneumothorax at the time. Injury 15 years ago but now has shoulder pain”;
(h)    the opinion of Dr Hale is not well reasoned or logical. The report of Dr Hopcroft should be preferred as it makes and takes a common sense approach to causation. The fact that there may be no signs or symptoms recorded at the time of assessment by Dr Hale does not negate the fact that an injury to the areas occurred, and
(i)    that the thoracic and lumbar spine and left shoulder should be referred to a Medical Assessor for determination of the WPI dispute.

Respondent’s position

Following assessment of the claim, the insurer confirmed it accepted liability for the lumbar spine injury but that it maintained a denial of liability for the claims of injury to the thoracic spine and left shoulder relying primarily on the opinion of its qualified specialist, Dr Hale. Despite not being pleaded, the insurer also assessed that neither the thoracic spine nor left shoulder could be claimed to be consequential conditions. In making its decision it also relied on the first notification of injury form and employers report of injury form which was silent on any injury or condition to the thoracic spine and left shoulder.
Dr Hale in his report dated 17 April 2024[23] recorded a consistent history of injury and treatment with the applicant being able to return to work in October 2004.   He noted;
[23] Folio 7 to 22 Reply.
(a)    treatment over the years has included physiotherapy (mainly via Medicare) and self-directed exercises and attention to fitness;
(b)    there were no other subsequent or previous injuries affecting the areas claimed;
(c)    he presented as a credible individual with no embellishment;
(d)    left shoulder movements were equal to the movements measured on the right side. The rotator cuff was intact but there was some tenderness in the region of the long head of biceps;
(e)    the thoracic spine had a good range of movement;
(f)    lumbar spine movements were reduced in all planes;
(g)    he considered mild restriction of left shoulder movement was not work related as it was symmetrical to the uninjured side and any symptoms are due to early degenerative change;
(h)    the intermittent claimed left sided chest pain is likely the result of the work related injury but is not a contributing factor to the left sided shoulder movement identified;
(i)    there was no clear evidence of “significant left shoulder injury” as a result of the workplace injury on 3 August 2004;
(j)    there is evidence the applicant sustained a pneumothorax and trauma to the pectoralis major muscle (anterior surface of the thoracic cage) but as there was a symmetrical mild restriction in shoulder movement, this was considered to not be work related;
(k)    as regards the thoracic pain, it was considered there was no injury but symptoms may arise from the left sided chest pain, likely attributed to the pectoralis major and possibly ribs but overall there was no evidence of thoracic spine injury, and
(l)    there was a direct injury to the lumbar spine and ongoing symptoms and impairment remain related to the workplace events on 3 August 2004.

Submissions

On behalf of the respondent it was submitted;
(a)    there is no dispute the applicant suffered an injury to his lumbar spine;
(b)    given that more than two decades have elapsed, a heavier reliance should be placed on the contemporaneous notes.   On this point, the ambulance record, hospital notes (both intake and discharge and clinical care notes) are all silent on any injury to the thoracic spine and shoulder.   Other areas are clearly articulated and it makes no sense to suggest that perhaps the thoracic spine and shoulder complaints were omitted due to human error or careless reporting;
(c)    the applicant did not seek treatment for the left shoulder until 25 September 2017 when he informed his general practitioner that he had shoulder pain on waking due to weight lifting, running and exercises a few days earlier;
(d)    careful analysis of the clinical notes from three general practices and the hospital reveal no complaints of shoulder pain and thoracic spine pain from the date of injury until late 2017;
(e)    the applicant consistently represented that he had no back pain or shoulder pain at his annual heavy vehicle license medical reviews, and
(f)    any link between the alleged claim of traumatic event to the left shoulder and thoracic spine is not made out in the contemporaneous evidence and 17 year intervening clinical history and so it is appropriate that the respondent receive an award for injury to the left shoulder and thoracic spine.

APPLICATION OF THE LAW AND REASONS

The definition of injury is found in s 4 of the 1987 Act (relevantly):
“‘injury’
(a) means personal injury arising out of or in the course of employment,
(b) includes a ‘disease injury’ , which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”
In assessing whether injury has occurred as a result of or in the course of employment, authorities demonstrate:
(a)    in order to be satisfied that an injury has occurred, there must be evidence of a sudden or identifiable[24] (Kennedy) pathological change[25] (Castro). The word ‘injury’ refers to both the event and the pathology arising from it[26] (Lyons);
(b)    “disease”, – s 4(b) of the 1987 Act, has been described as “any abnormal physical or mental condition that is not purely transient”[27] (and it is now well established that a relevant aggravation injury (which for present purposes shall include aggravation, exacerbation or deterioration) need not have any effect on the underlying pre-existing disease itself and that it will be sufficient if the symptoms of the disease have been increased in the course of employment. Moreover, employment need only be the substantial contributing factor to the aggravation and need not contribute to the causation or progression of the underlying disease itself;[28]
(c)    the issue of causation must be determined based on the facts in each case and the application of the commonsense evaluation of the causal chain: (Kooragang),[29] and
(d)    the applicant bears the onus of establishing injury on the balance of probabilities. A decision maker must feel an actual persuasion or comfortable satisfaction of the existence of a fact. The approach to be taken was summarised explored by the Court of Appeal in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen) relevantly:
“(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.”
[24] see Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45 and Military Rehabilitation and Compensation Commission v May [2016] HCA.
[25] Castro v State Transit Authority (NSW).
[26] Lyons v Master Builders Association of NSW Pty Ltd.
[27] per Windeyer J Commissioner for Railways v Bain [1968] HCA 5.
[28] see, for example, Murray v Shillingsworth [2006] NSWLR 451 and State Transit Authority of NSW v El-Achi [2015] NSWWCCPD 71.
[29] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR [463].
(At [55].)

Section 9A of the 1987 Act requires employment to also be the substantial contributing factor to the injury for compensation to be payable (other than for a disease injury where it must be shown that employment is the main contributing factor – s 4(b) of the 1987 Act).

Issue 1 – Did the applicant sustain an injury to the lumbar spine, thoracic spine and left shoulder?

Lumbar spine

There being no “injury” or “liability” issue in relation to the lumbar spine, any dispute in relation to the degree of impairment of the lumbar spine resulting from the incident on 3 August 2004 falls exclusively within the jurisdiction of a Medical Assessor.

Thoracic spine

Assessment is complicated by the proximity of the thoracic spine to the lumbar spine, which has undoubtedly been significantly injured in the relevant sense, and the fact that the back as a whole is a single, interconnected and complicated structure.
It is fair to say, that the respondent relies heavily on what is not in the evidence, namely the lack of any contemporaneous complaints relating to the thoracic spine to treating doctors for more than a decade post injury.
I have given careful consideration to the applicant’s submission that the alleged injury to the thoracic spine was overlooked or underestimated by the applicant and all of the doctors who have examined him other than Dr Hopcroft because their focus was on the undoubtedly more on the fractures and pneumothorax which was the reason for the hospital admission. An equally plausible explanation is that as submitted by the respondent, that is, the lack of attention to the thoracic spine, is because there was in fact no injury to that region. This is particularly so given that the applicant never gave any history of having suffered pain at the thoracic spine at the time of the injury or shortly thereafter.
I am very mindful of the case law that requires a decision maker to treat clinical notes with caution given the primary concern is with treatment which could account for a lack of precise recording of symptoms arising from any work related event.[30]
[30] Mastronardi v State of New South Wales [2009] NSWCA 270.
The onus of establishing that such injury was received falls upon the applicant and the standard of proof is on the balance of probabilities, meaning that I must be satisfied to a degree of actual persuasion or affirmative satisfaction: (Nguyen). This does not mean that I need to be satisfied to a degree of medical or scientific certainty but on the other hand, it is not sufficient if I am merely satisfied that it is possible that the applicant’s employment caused “injury” at the relevant time.
Overall, with regards to the thoracic spine, I find;
(a) the hospital notes refer to back complaint and the notes consistently use the general term “spine” and “back – abrasion L side, tender lower ribs”. I find that these references more likely than not accord with the spinal anatomy of the left thoracic area, and
(b) the ambulance record on the day of the injury records an abrasion/graze over the thoracic area.[31] I accept the respondent submissions that subsequent radiological findings reveal no significant pathology but this does not negate a finding of injury.
[31] Folio 87 refers.
For these reasons, and with reference to the nature of the injury, chronology of events and assessment of the available medical reports, I am satisfied the applicant has established on the balance of probabilities that there has been a definite or distinct “physiological change” or “physiological disturbance” in the thoracic spine arising from workplace events on
3 August 2004. Given this, the injury can now be referred to a Medical Assessor.

Left shoulder

Overall, I agree with the respondent that there is a paucity of evidence to suggest the applicant sustained an injury to the left shoulder on 3 August 2004. The applicant submits the alleged injury to the left shoulder was overlooked or underestimated by the applicant himself as it was minor in contrast to his overall presentation and injuries.
I do not accept this because;
(a)    the ambulance diagram and the hospital notes thoroughly document the site of symptoms and is silent on left shoulder symptoms yet does highlight the graze on the left scalp and ear;
(b)    there is no reference of any shoulder or adjacent neck symptoms during the inpatient stay at hospital, despite all other areas being canvassed and recorded;
(c)    Dr Hopcroft suggests the scoliosis present in the thoracic spine was now post-traumatic following the injury suffered to his left shoulder in the massive blow from the falling concrete panel on 3 August 2004, although fails to explain this. The statement does not satisfy the commonsense test of causation in that there is no evidence that the left shoulder was impacted. He had earlier suggested the injury to the spine occurred when struck by the concrete slab independent of any upper limb injury;
(d)    I note that Dr Hopcroft failed to record the complaint of pain in 2017 in private circumstances, which was significant enough to cause the applicant to seek treatment.    This is highly relevant as the applicant despite claiming injury and a degree of symptoms arising from the work injury on 3 August 2004 did not complaint to or consult his general practitioner, until injury that occurred in private circumstances almost 13 years post accident;
(e)    I acknowledge the applicant’s statement that he recalls injury to the left shoulder and receiving treatment for this.   There is no evidence to validate or verify this statement. I am mindful of the case law dealing with matters where there is a conflict between the contemporaneous evidence and current recall of events. I am not persuaded the applicant’s present recollection (two decades post injury) is preferable to the contemporaneous documents[32] completed the day after the injury and during the immediate period of hospitalisation.   This does not cast a shadow on the applicant’s credibility, rather acknowledges the fallibility of memory which I find accounts for inconsistencies between current recollection and actual events, [33]and
(f)    Overall, for these reasons, I am not satisfied the applicant has established on the balance of probabilities that there has been a definite or distinct “physiological change” or “physiological disturbance” in the left shoulder which, if not sudden, is at least “identifiable arising from workplace events on 3 August 2004.

SUMMARY
[32] Onassis v Vergottis [1968] 2 Lloyds Rep 403 at 431.
[33] Watson v Foxman (1995) 49 NSWLR 315 at 319.

For the reasons above, I make the findings and orders set out on page 1 of the Certificate of Determination.

[2025] NSWPIC 222

21 May 2025