Ovens v WITS Holdings Pty Ltd - [2025] NSWPIC 222

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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWPIC 222
Decision Date: 21 May 2025

CaseChat Overview and Summary

In the case of Ovens v WITS Holdings Pty Ltd, the applicant, Ovens, sought a lump sum compensation for injuries sustained to his lumbar and thoracic spine, and left shoulder, under the Workers Compensation Act 1987. The dispute centred on whether the applicant had sustained the claimed injuries in the workplace. The court was tasked with determining the nature and extent of these injuries based on the evidence presented.

The primary legal issues revolved around the credibility and reliability of the applicant's recollection of the events leading to the injuries, compared to the contemporaneous materials and records. The court had to decide if the applicant had indeed suffered a frank injury to his thoracic spine and left shoulder, and whether these injuries were directly attributable to workplace events. The applicant's current memory of the events conflicted with the contemporaneous materials, leading to a challenge in establishing the facts of the case.

The court carefully considered the evidence and the principles established in Kennedy Cleaning Services Pty Ltd v Petkovska, which underscored the fallibility of memory and the importance of contemporaneous evidence. The court also referenced Watson v Foxman and Onassis v Vergottis to weigh the reliability of the applicant's memory against documented evidence. Ultimately, the court found that the applicant did suffer an injury to his thoracic spine, warranting compensation. However, it was not satisfied on the balance of probabilities that there had been an injury to the left upper limb (left shoulder), due to the absence of evidence of a sudden or identifiable pathological change. Consequently, the court ordered compensation for the lumbar spine and thoracic spine impairment to be assessed by a Medical Assessor.

Orders