Robs Extreme Construction Pty Ltd v Workers Compensation Nominal Insurer (icare) - [2025] NSWPICPD 67

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Robs Extreme Construction Pty Ltd v Workers Compensation Nominal Insurer (icare) [2025] NSWPICPD 67
APPELLANT:	Robs Extreme Construction Pty Ltd
FIRST RESPONDENT:	Workers Compensation Nominal Insurer (icare)
SECOND RESPONDENT:	Hassan Saleh
INSURER:	Uninsured
FILE NUMBER:	A1-W7429/23
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	24 September 2025
ORDERS MADE ON APPEAL:	1. The appeal is dismissed. 2. The Certificate of Determination dated 14 February 2025 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – the onus of proof in applications pursuant to s 145(3) of the Workers Compensation Act 1987 – application of Raniere Holdings Pty Ltd v Daley [2005] NSWCA 121; 66 NSWLR 594; A1 Granny Flats v Workers Compensation Nominal Insurer [2023] NSWPICPD 69; appeals pursuant to s 352 of the Workplace Injury Management and Workers Compensation Act 1998 – application of State of New South Wales v Culhana [2025] NSWCA 157; Warren v Coombes [1979] HCA 9; 142 CLR 531; Fox v Percy [2003] HCA 22; 214 CLR 118; Lee v Lee [2019] HCA 28; 266 CLR 129; Eppinga v Kalil [2023] NSWCA 287; May v Costaras [2025] NSWCA 178; credit finding where witness gave deliberately untrue evidence – Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117; appealable error should be material – Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478; Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409, 419, quoted in Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287; weight of evidence – notes of treating medical practitioners – application of Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320; New South Wales Police Force v Winter [2011] NSWCA 330; Mason v Demasi [2009] NSWCA 227; ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24; 388 ALR 128; J & E Vella Pty Ltd v Hobson [2023] NSWCA 234; Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505; [1985] HCA 58; 59 ALJR 844
HEARING:	On the papers

REPRESENTATION:	Appellant:
Mr M Robinson, counsel
Trump Lawyers
First Respondent:
Mr S Harris, solicitor
Moray & Agnew Lawyers
Second respondent:
Mr L Morgan, counsel
Martin Bell & Co
DECISION UNDER APPEAL:	Robs Extreme Construction Pty Ltd v Workers Compensation Nominal Insurer (icare) [2025] NSWPIC 47
MEMBER:	Mr G Whiffin
DATE OF MEMBER’S DECISION:	14 February 2025

INTRODUCTION AND BACKGROUND

Hassan Saleh (the second respondent/worker/Mr Saleh) was employed by Robs Extreme Construction Pty Ltd (the appellant/employer) as a labourer. The employer concedes the issue of ‘worker’, and concedes the occurrence of injury on 18 November 2020 involving the right foot/ankle, but does not concede injury to multiple other body parts that are alleged.[1] The employer concedes it did not, at the date of injury, have a policy of insurance in force in respect of its liabilities pursuant to the workers compensation legislation. Mr Saleh’s claim for workers compensation in respect of the injury was met by the Workers Compensation Nominal Insurer (the first respondent/Nominal Insurer). The Nominal Insurer issued a notice pursuant to s 145(1) of the Workers Compensation Act 1987 (the 1987 Act), requiring reimbursement by the employer of the sum of $91,724.88 which it had paid to Mr Saleh. In these proceedings the employer seeks determination of its liability in respect of that reimbursement, pursuant to s 145(3) of the 1987 Act.
[1] Transcript of preliminary conference, 7/2/24 (T1), T1 16.14–32.
The application was heard by Member Whiffin. The hearing proceeded over three days, on 19 March 2024, 21 May 2024 and 22 July 2024. Evidence was taken from Mr Saleh, Mr Sader (the principal of the employer) and Mr Baccouni (Mr Sader’s brother-in-law, who worked in the same business). Mr Gaitanis, counsel, appeared for the employer, Mr Harris, solicitor, appeared for the Nominal Insurer and Mr Morgan, counsel, appeared for Mr Saleh. The Nominal Insurer elected not to provide written submissions. Written submissions were lodged by the other parties.
The Commission issued a Certificate of Determination dated 14 February 2025, accompanied by 72 pages of reasons.[2]
[2] Robs Extreme Construction Pty Ltd v Workers Compensation Nominal Insurer (icare) [2025] NSWPIC 47 (reasons) [8].

THE MEMBER’S REASONS

The parties agreed the issues in dispute were:
(a)    whether on 18 November 2020, in addition to injury to the right ankle (which was conceded) Mr Saleh also injured his right knee, right foot, right lower extremity, right hip, groin, lower back, lumbar spine with radiculopathy, middle back, thoracic spine with radiculopathy, right shoulder and right upper extremity, as well as anxiety and depression;
(b)    what is the correct calculation of Mr Saleh’s ‘pre-injury average weekly earnings’ (PIAWE), said by the employer to be $450 per week, and alleged by Mr Saleh to be $808.50 per week, and
(c)    what was Mr Saleh’s ‘current work capacity’ between 3 March 2021 and 15 August 2023 in relation to the right ankle injury, as well as any other injuries found to have been sustained on 18 November 2020.[3]
[3] Reasons, [8].
The Member noted he granted leave for cross-examination of Mr Saleh, Mr Sader and Mr Baccouni. The Member said there were inconsistencies in the statement evidence and he considered cross-examination would assist him in understanding the evidence.[4]
[4] Reasons, [12].
The Member summarised the evidence contained in Mr Saleh’s statements dated 8 December 2022, 14 December 2023 and 12 March 2024. He was introduced to Mr Sader by a family friend. Mr Saleh said he worked five days per week, typically 6.30 am to sometime from 3.30 to 5.30 pm. He was usually paid $1,250 per week. He did not work for anybody else, he was paid cash. He usually drove to Mr Baccouni’s house, Mr Baccouni would drive him to Mr Sader’s house, and Mr Sader would drive them all to the relevant job site. Mr Saleh identified five job sites, of which he had photographs, at Bangor, Tempe, Queenscliff, Erskineville and Balgowlah.[5] He said he was injured at the Erskineville site. A bathroom was being demolished. He was required to carry the rubbish from demolished gyprock walls, which still had tiles attached, downstairs to a carpark, where he threw the demolished pieces of wall onto a truck. He was carrying multiple boards with tiles attached, which were cumbersome. One of these boards slipped and struck his right knee and ankle; he fell on the stairs and the remaining sheets in his hands fell on top of him. He said there was a blow to the right shoulder, and injury to the low and middle back, groin, right hip, right knee and right ankle. He also jarred his neck.[6]
[5] Reasons, [23]–[24].
[6] Reasons, [27]–[28].
Mr Saleh said he called out, following which Mr Sader and Mr Baccouni arrived, removed the gyprock boards from him, wrapped his right ankle with a shirt to stem the bleeding and carried him to Mr Sader’s truck. Mr Sader drove him to Royal Prince Alfred Hospital and helped him in; Mr Saleh said that Mr Sader did “all the talking” at the hospital. Mr Saleh underwent surgery to his right ankle and was an inpatient for four days. The reasons record Mr Saleh was “adamant that ‘[he] did not say [he] was not otherwise injured’.” He said he also injured his right groin, right knee, right hip, lower back, middle back, neck and right shoulder. The reasons record Mr Saleh first saw Dr Sarian on 27 January 2021 and complained of other injuries, additional to that to the right ankle. Mr Saleh stated he saw Mr Sader on 8 March 2021 and gave him a certificate of capacity from Dr Sarian dated 3 March 2021, which said he was unfit for work.[7]
[7] Reasons, [29]–[32].
Mr Saleh’s second statement took issue with statements that had been provided by Mr Sader and Mr Baccouni. Mr Saleh maintained that he worked for the employer five days per week (Mr Sader and Mr Baccouni stated shorter periods). Mr Saleh said he was paid $250 per day (rather than $150 as stated by Mr Sader). Mr Saleh also referred to other symptoms involving the right elbow, left knee, left shoulder, right hip, fractured ribs, right groin and calf, right scapular, fingers and anxiety. Mr Saleh’s third statement included his description of his examination with Dr Allen, an appointment arranged by the employer in connection with his claim.[8]
[8] Reasons, [34]–[41].
The Member summarised two statements given by Mr Sader. In the first, dated 25 May 2021, Mr Sader said he did not employ workers, but “hires workers when needed on a subcontract basis”. He described the worker as “just labour hire”, who “worked only one or two days a week when needed”. He said he started Mr Saleh on $150 per day, and Mr Saleh said he was happy with that. Mr Saleh was paid cash and there were no records. Mr Sader said he asked Mr Saleh for invoices but these were not supplied. There was no written contract. There was no record of the days Mr Saleh worked, it was “around ten days all up”. Mr Sader said Mr Saleh “was lucky to work fifteen (15) hours per week”. Mr Sader said the accident was at the Erskineville site. Mr Sader stated he was “sitting in the courtyard area and [he] was on the phone. Hassan Saleh and Hanna Baccouni were moving the rubbish downstairs”. Mr Sader said Mr Saleh was “walking with one or two bits or villa board with tiles on them”. He stated, “a piece of villa board broke off and it fell towards the ground, [Mr Saleh] obviously using his reflexes tried to catch it with his foot and it cut his right foot”. Mr Sader said there were no injuries other than that to the right foot. He said the pieces of villa board “weighed no more than 5 to 10 kg, and the piece of broken ceramic tile that struck his foot was ‘no bigger than half a dinner plate’”. Mr Sader described Mr Saleh’s description of the accident as “a complete lie”.[9]
[9] Reasons, [44]–[51].
The Member also summarised Mr Sader’s second statement dated 15 December 2023. Mr Sader said Mr Saleh, when injured, was carrying gyprock boards, rather than villa board. Mr Sader conceded there may have been weeks when Mr Saleh worked four days, but not five. He said the gyprock boards being carried at the time of the accident would not have weighed 40 kilograms, it would be “physically impossible”. Mr Sader said the questions asked by the medical staff at Royal Prince Alfred Hospital were answered by Mr Saleh, who was “alert, conscious and aware”. Mr Sader said injury to the right ankle was the only injury Mr Saleh complained of at the hospital, while Mr Sader was with him. Mr Sader said he was sitting on a concrete ledge taking a telephone call when Mr Saleh was injured and he could clearly see where the accident occurred. Mr Sader referred to two photographs which he included in his statement. The Member said his impression was that, from where Mr Sader was seated, there would have been a clear view of the place marked as where the accident occurred. There was also a photograph of the stairs that led from the courtyard to the carpark. His impression was that the stairs were not unusually steep. There were nine steps leading to a reasonably sized landing, then another six steps to a larger landing, then another two steps to the ground.[10]
[10] Reasons, [53]–[57].
The Member summarised the statement of Mr Baccouni (Mr Sader’s brother-in-law) dated 25 May 2021. Mr Baccouni performed labouring duties for the employer for which he received $20 to $30 per hour. Mr Baccouni said Mr Saleh worked about ten to twelve days for Mr Sader over four or five weeks. Mr Baccouni said Mr Saleh left the bathroom that was being renovated “carrying a small piece of villa board which had tiles attached”. He said Mr Saleh dropped the villa board on his right foot, which he used to try to stop it falling. It would have weighed about six kilograms. He said there were no other visible injuries and Mr Saleh did not complain of other injuries. Mr Baccouni said Mr Saleh walked to Mr Sader’s truck, to be driven to hospital. Mr Baccouni denied Mr Saleh was going down the stairs when he was injured and denied that villaboards fell on Mr Saleh.[11]
[11] Reasons, [58]–[63].
The Member, in his reasons at [64] to [70], briefly summarised the contents of statements from Ms Turkmen, a mutual acquaintance of Mr Sader and Mr Saleh. Ms Turkmen said she introduced the two men and Mr Saleh was informed Mr Sader had work available. Ms Turkmen also described visiting Mr Saleh after his accident and being told he had sustained a major cut to his right foot (she did not mention other injuries). The Member referred to a statement from Ms Hanna, a solicitor employed by those who acted for Mr Saleh, dealing with Dr Sarian and the production of documents. The Member also referred to a statement from Mr Saleh’s mother that confirmed his statement regarding his appointment with Dr Allen.[12]
[12] Reasons, [64]–[70].
The Member referred to “[o]ther factual evidence”. This included various text messages. The Member summarised the contents of Mr Saleh’s compensation claim form dated 20 March 2021. The description of the accident recounted that the gyprock boards that slipped struck Mr Saleh’s right knee and then his right ankle. It described the remaining sheets falling on Mr Saleh and injuring his low back, middle back, groin, right hip and right knee and ankle, with a severe gash to the right ankle. The Member noted the claim form denied any other injury, condition or claim relating to the current one. The claim form stated that Mr Saleh worked full-time for the employer and was paid cash by Mr Sader for his work. It stated Mr Saleh worked 45 hours per week for which he was paid $1,250 per week net. The Member referred to Mr Saleh’s taxation returns. The “only relevant one” was for the financial year 2021, which showed earnings from the employer of $9,250. The given reason for the amended return was that “the client forgot to report one salary income that was not reported by employer to ATO”. The Member also referred to an ASIC search that showed a person with the same name as Mr Saleh holding an Australian Business Number (ABN). The Member said he accepted this person was not the worker.[13]
[13] Reasons, [71]–[73].
The Member summarised a medicolegal report from Dr Bodel, an orthopaedic surgeon qualified by the worker’s solicitors, dated 5 January 2023.[14] Dr Bodel concluded Mr Saleh “suffered a serious injury principally to his right foot and ankle but also to the neck and the back, the shoulders and hips and knees as a result of the incident that occurred at work on 18 November 2020”. The doctor described Mr Saleh’s prospects of returning to any form of paid work as “very poor”.[15]
[14] Nominal Insurer’s Reply, pp 46–54.
[15] Reasons, [74]–[82].
The Member summarised a medicolegal report from Dr Millons dated 29 September 2023,[16] qualified by the Nominal Insurer. Dr Millons considered Mr Saleh to be unfit for any work while awaiting treatment, and only ever likely to be “suited to work of a light semi-sedentary nature now in an office-based environment”. He was “permanently unfit for work as a labourer”.[17]
[16] Nominal Insurer’s Reply, pp 55–67.
[17] Reasons, [83]–[92].
The Member summarised a report of Dr Allen, an orthopaedic surgeon qualified by the employer, dated 30 January 2024.[18] Dr Allen described Mr Saleh as a “hostile attendee” who “cooperated poorly”. Dr Allen said his examination was “complicated by voluntary restriction in motion and poor cooperation”. The doctor referred to the absence of any confirmed complaint of injury, other than to the right ankle, in the records of the Royal Prince Alfred Hospital where Mr Saleh was admitted after his accident. The doctor said there was “insufficient objective evidence” to confirm any injuries other than that to the right ankle, on 18 November 2020. The doctor considered the right ankle injury would have prevented Mr Saleh from working for two to six weeks, after which he could have resumed full labouring duties. He said there was no incapacity for employment as a consequence of the ankle injury.[19]
[18] Application to Admit Late Documents (AALD), 27/2/24, pp 118–128.
[19] Reasons, [93]–[100].
The Member turned to the reports from Mr Saleh’s treating doctors. He referred to Dr Sarian, the general practitioner who Mr Saleh consulted after the accident, on 27 January 2021.[20] Dr Sarian referred Mr Saleh to multiple specialists. The Member said that Dr Sarian consistently described Mr Saleh’s injuries, in his letters of referral, as “traumatic injuries to right anterior ankle + lacerations to tibialis anterior and injuries to right knee + right hip joint + right shoulder and to lumbar and cervical spine”.[21] The Member referred to Dr Popoff, who treated Mr Saleh from 20 September 2021. Dr Popoff on that date recorded:
“[Mr Saleh] injured his right shoulder, ankle, knee, hip and back in an incident on 18/11/2020. He was carrying gyprock sheets with tile applied to it down some stairs. A sheet of the tiles came adrift, struck his ankle, lacerating it. He then fell backward heavily with the sheets on top of him.
Regarding his right shoulder, it was immediately painful and has been painful since.”[22]
[20] Reasons, [102].
[21] Reasons, [108].
[22] Worker’s reply, p 133.
An MRI scan of the right shoulder revealed a labral tear. Dr Popoff performed arthroscopic stabilisation of the right shoulder on 6 February 2024.[23]
[23] Reasons, [101]–[112].
The Member referred to Mr Saleh’s treatment with Dr Rosenberg, who he first saw on 23 September 2021, in connection with his back. His history was consistent with that recorded by Dr Popoff. Dr Rosenberg referred to the radiology as demonstrating “annular tears at L4-5 and L5-S1”. Dr Rosenberg said the L4/5 disc was symptomatic and it was “reasonable to assume he has injured it in the manner described”. Dr Rosenberg did not then see Mr Saleh again until 1 August 2023, when he recorded Mr Saleh “feels worse with respect to his back”. On 31 October 2023 Dr Rosenberg reported that an MRI scan revealed protrusion and annular tear at L4-5 and “very slight” protrusion and annular tear at L5-S1.[24]
[24] Reasons, [113]–[116].
The Member referred to treatment with Dr Della Torre, another orthopaedic surgeon who Mr Saleh first saw on 5 October 2021. The doctor recorded a history of injury:
“He reports carrying 40-50kg of Gyprock boards with tiles down steps where he hit his knee and ankle and fell backwards. The cement and tile sheets fell on his leg sustaining a complex laceration to anterior right lower leg, which resulted in an 80% laceration of tibialis anterior tendon which was repaired at Royal Prince Alfred Hospital.”[25]
[25] Worker’s reply, p 126.
Dr Della Torre saw Mr Saleh again on 30 November 2021, when he recommended non-operative treatment.[26]
[26] Reasons, [117]–[119].
The Member referred to Dr Zicat, who reported on 28 July 2023 and recorded the following history of injury:
“He had injuries predominantly to his right side, after a load of gyprock he was carrying landed on his leg and he collapsed backwards. He did have a laceration of his right leg including to his tibialis anterior tendon, and this was treated with repair at Royal Prince Alfred Hospital. Since then, he has had ongoing difficulty with pain in his right shoulder, back, right hip, right knee and ankle. He is being seen by Geoff Rosenberg for his back.”[27]
[27] Worker’s reply, p 95.
Dr Zicat saw Mr Saleh again on 3 November 2023 following receipt of radiology which the doctor had recommended. The doctor described hip radiology as “unremarkable”. He referred to right knee symptoms as “all on the lateral aspect of his knee”, which “images entirely normally on his MRI”. He suspected the symptoms were “either radiculopathy from [the] lumbar spine, or some generalised weakness leading to iliotibial band irritation”.[28]
[28] Reasons, [120]–[122].

The Member also referred to Dr Chang, a foot and ankle surgeon, who reported on 1 November 2023 and initially encouraged a return to full activities. In a second report, dated 9 January 2024, Dr Chang referred to intermittent discomfort and clicking in the right ankle joint. On this occasion she recommended surgery involving arthroscopy, tendon exploration and some reconstruction of the joint.[29]
[29] Reasons, [123]–[124].
The Member also referred to a report from Dr Kuljic, a psychiatrist, dated 4 October 2023. The doctor diagnosed major depressive disorder resulting from “chronic pain, limited mobility and changes in lifestyle”. The doctor recommended cognitive behavioural therapy and medication”.[30]
[30] Reasons, [125].
The Member referred to the notes from Royal Prince Alfred Hospital.[31] The Member said these documents “detail[ed] little more than ‘dropped piece of marble onto foot’”. The treatment recorded was to the right foot and ankle, there was no record of other injuries received in the accident. The observations related only to the right foot and ankle, apart from which Mr Saleh was recorded as being “otherwise well”. The records recorded the answer “No” to a question “Did the patient present to the hospital with a fall?”. They said Mr Saleh “works as [a] builder” and that there was no insurance covering the hospital treatment. The records cover a period of four days until Mr Saleh’s discharge on 21 November 2020. There were no complaints of pain other than to the right foot and ankle.[32]
[31] AALD 27/2/24, pp 147–246.
[32] Reasons, [126]–[129].
The Member referred to the notes from Dr Swid.[33] On 1 December 2020 and 15 December the complaints related only to the right ankle. On 14 January 2021 the notes related to the right ankle, but additionally to the right gluteal region and the right groin. The Member noted Dr Swid’s notes included reports from Dr Lee dated 16 June 2011 and 18 July 2011. The earlier of these referred to Mr Saleh “‘popping’ his left shoulder about a year ago” and having instability since. The second of these confirmed lesions associated with the dislocation and said the shoulder could be treated surgically.[34]
[33] AALD 27/2/24, pp 280–293.
[34] Reasons, [133]–[134].
The Member referred to notes from Dr Nguyen, another general practitioner.[35] The references noted by the Member referred to complaints over a period from 23 March 2010 to 18 August 2020. These involved the right elbow, left knee, left shoulder (with recurrent dislocations), left ribs, work stress at the Commonwealth Bank, left shoulder and right ankle pain after falling off a “bush bike” (sic), right thigh and calf pain, an inguinal hernia, right hand and right scapular area.[36]
[35] AALD 27/2/24, pp 247–279.
[36] Reasons, [135].
The Member referred to notes from Dr Sarian.[37] The Member described these as “surprisingly brief” considering the long history of consulting with the doctor. Many categories of the documents from Dr Sarian were referred to by the Member as only relating to the injuries allegedly sustained on 18 November 2020.[38]
[37] AALD 27/2/24, pp 294–442.
[38] Reasons, [136]–[137].
The Member summarised Mr Saleh’s oral evidence.[39] The Member made some comments that were relevant to credit. The Member said Mr Saleh was “reticent” in providing information regarding his consultation with Dr Nguyen on 18 August 2020, and whether on that day he consulted the doctor about his right shoulder.[40] The Member described him as giving “confusing evidence” regarding complaints of right ankle pain prior to 18 November 2020.[41]
[39] Reasons, [138]–[174].
[40] Reasons, [142].
[41] Reasons, [143].
The Member referred to Mr Saleh’s evidence regarding reporting the accident at the hospital on 18 November 2020. Mr Saleh initially said he was not involved in that reporting, but later conceded he was involved and he had confirmed what Mr Sader said. Mr Saleh “eventually conceded” he told the hospital that he was “otherwise fit and healthy”. Mr Saleh conceded he only reported the right ankle injury, although he had pain in other body parts. He said the ankle was his “main concern” and he thought the other pains were bruising that would go away. Mr Saleh said that he would have answered truthfully at the hospital if asked whether he had had a fall. He said that if the hospital records said he had not fallen, this was not a true representation of what occurred.[42]
[42] Reasons, [149]–[151].
The Member noted that Mr Saleh, in cross-examination, agreed he did not inform Mr Sader of any injuries, other than that to the right ankle, until “around March 2021”, although he had pain from those injuries from immediately after they occurred. The Member also noted Mr Saleh’s evidence that his accident was not witnessed, that Mr Sader had remained in the bathroom and Mr Baccouni was following him (Mr Saleh) “but not immediately”.[43]
[43] Reasons, [158], [167].
The Member summarised Mr Sader’s oral evidence.[44] Mr Sader confirmed the contents of his two statements. Mr Sader confirmed that he “directly saw” Mr Saleh’s accident on 18 November 2020, in the courtyard, while he (Mr Sader) was seated on a concrete ledge. He said Mr Baccouni was “only a few feet” behind Mr Saleh at the time. Mr Sader said he had requested invoices from Mr Saleh and had paid him notwithstanding the invoices were not provided. The Member described Mr Sader’s evidence as confusing, regarding whether Mr Saleh worked for him and whether he had an ABN. The Member said Mr Sader denied awareness of his obligations to deduct taxation from payments made to the worker, and of his obligations to the Australian Taxation Office. The Member described the evidence of Mr Sader about specific jobs at Bangor, Tempe and Queenscliff as “exceptionally vague and unconvincing evidence as to the nature of those jobs”. The Member said it was put to Mr Sader that he lied about the employer’s relationship with Mr Saleh, to protect the employer from the possibility of having to pay moneys. The reasons stated that “[Mr] Sader denied lying, but his evidence was not convincing”.[45]
[44] Reasons, [175]–[179].
[45] Reasons, [177].
The Member summarised Mr Baccouni’s oral evidence. Mr Baccouni confirmed Mr Sader was his wife’s brother. The Member described Mr Baccouni’s evidence regarding the company’s work practices on the day of the accident as “often unresponsive or confusing, and punctuated with statements that he could not remember the processes exactly, but that they ([Mr] Sader, [Mr Saleh] and himself) were all ‘working together’.”[46] The reasons at [185] read:
“When questioned as to when he had last spoken to [Mr] Sader about the second respondent’s accident, his evidence was initially unresponsive although he admitted that he had spoken to [Mr] Sader when he knew that he was to give evidence, as [Mr] Sader then told him that there was ‘a court case’. However, later he said ‘we didn’t talk about it but I received a letter from the court’.”
[46] Reasons, [182].
The parties’ submissions before the Member are described in some detail in the reasons. I will not seek to summarise them at length. The employer was critical of the Nominal Insurer for accepting the claim. It submitted Mr Saleh “was not credible in his oral evidence and should not be accepted”. It submitted the evidence of Messrs Sader and Baccouni should be preferred. It submitted Mr Saleh’s version was not supported by the notes from Royal Prince Alfred Hospital or other contemporaneous records – there was no record of “cuts, bruises or abrasions” to Mr Saleh, which would have been noticed by hospital staff if Mr Saleh’s version were accepted. It submitted Mr Saleh’s version of how he moved the “gyprock boards weighing 30–40 kg” from the bathroom to the carpark was implausible. It was submitted to be uncontroversial that Mr Saleh’s evidence contained lies – he denied suffering previous injury to the body parts the subject of this claim. The employer submitted corroboration would be required to make findings based on his evidence. Reference was made to Malco Engineering Pty Ltd v Ferreira.[47] The employer submitted the evidence of Messrs Sader and Baccouni was not compromised in cross-examination, both insisted they were present when the accident occurred.[48]
[47] (1994) 10 NSWCCR 117 (Malco Engineering).
[48] Reasons, [192]–[198].
The employer’s submissions dealt with the medical evidence. The hospital notes did not mention injury other than that to the right ankle and did not mention Mr Saleh falling. Reference was made to the notes of Dr Swid, who referred only to injury to the right foot and ankle. The employer referred to Watson v Foxman[49] regarding the weight to be given to contemporaneous evidence. The employer referred to the clinical records from treating doctors. Mr Saleh denied injuring his right hip and shoulder prior to 18 November 2020. The employer submitted there were inconsistencies in his evidence regarding his left shoulder, his oral evidence in this regard was “utterly implausible”.[50] Further criticism by the employer, of the persuasiveness of the worker’s medical case, was referred to in the reasons at [204] to [207].
[49] (1995) 49 NSWLR 315 (Watson).
[50] Reasons, [200]–[203].
The Member summarised the submissions made on behalf of Mr Saleh. Mr Saleh’s submissions argued the employer bore the onus of proof, referring to Raniere Holdings Pty Ltd v Daley.[51] There was criticism of the evidence of Mr Sader, on the basis he was not a truthful witness and sought to protect his own financial interests. It was submitted Mr Sader’s statement evidence, that Mr Saleh identified a specific ABN to him, was “clearly untruthful”. It was submitted Mr Sader’s evidence in his statement dated 25 May 2021, that Mr Saleh was “in the business of working as a labourer for hire”, was clearly untruthful; he knew Mr Saleh had previously worked with the Commonwealth Bank. Mr Saleh’s submissions identified various aspects of Mr Sader’s evidence, about the events on the date of injury, that were contradicted by Mr Baccouni’s evidence. Mr Saleh submitted the most credible version of the events on the date of injury was that Mr Sader and Mr Baccouni operated tools and the like, while Mr Saleh shuttled between the bathroom and the truck removing debris. Mr Saleh referred to his statement, claim form and photographs.[52]
[51] [2005] NSWCA 121 (Raniere).
[52] Reasons, [208]–[212].
The Member’s reasons turned to the issue regarding recording of the medical history.[53] Mr Saleh referred to cases dealing with the weight to be given to medical histories and submitted:
“The [Commission] would accept that busy medical practitioners in a major public hospital in the middle of a pandemic are likely to look to deal with the issue at hand rather than record every complaint by a patient, particularly in circumstances where their concern is with the surgical treatment or impact of an obvious frank injury.”[54]
[53] Reference is made to Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 (Davis), Mason v Demasi [2009] NSWCA 227 (Mason) and Winter v New South Wales Police Force [2010] NSWWCCPD 121 (Winter).
[54] Reasons, [215].
The Member referred also to the employer’s submissions in reply. It challenges the neutrality of Ms Turkmen as a witness. It submits Mr Sader, on the date of the incident, was overseeing and coordinating the job, he was not involved in the stripping process or the removal of debris. It submits the evidence of Mr Baccouni and Mr Sader is generally consistent, and any discrepancies relate to minor details. It challenges Mr Saleh’s reliance on cases such as Mason v Demasi as “speculative, implausible and without substance”. It lists 15 examples of Mr Saleh’s evidence that “cannot be accepted due to its untruthfulness”.[55]
[55] Reasons, [219]–[225].
The Member commenced his consideration of the matter by stating that the employer company bore the onus “to prove that it had no liability in relation to the payments made to [Mr Saleh] by the [Nominal Insurer], as recorded in the reimbursement notice”.[56] The Member said:
“[The employer] asks me on a number of occasions not to make factual findings in favour of the [worker] as I should not feel the necessary persuasion in accordance with Nguyen [v Cosmopolitan Homes[57]] to make those findings. However, it is not the responsibility of the [worker] to prove any fact in these proceedings. It is instead the responsibility of the [employer] to persuade me in accordance with Nguyen that it is not liable for the payments made by the [Nominal Insurer] and referred to in the reimbursement notice.”
[56] Reasons, [227].
[57] [2008] NSWCA 246 (Nguyen).
The Member described the issues before him:
“In my opinion therefore, for the [employer] to be successful (either in whole or in part) in the proceedings, it has the onus to prove one or more of the following:
(a) the [worker] did not suffer injuries to his neck, back, right shoulder, right hip, and right knee on 18 November 2020 – noting that the [employer] has already conceded liability for a right ankle injury on that date – these are the injuries accepted by the [Nominal Insurer] and in relation to which it has compensated the [worker], as advised in its letter to the [worker] dated 11 May 2023 (see paragraph 73(b) above);
(b) the [Nominal Insurer] paid weekly benefits compensation to the [worker] pursuant to an incorrect PIAWE;
(c) the [worker] had current work capacity during the period between 3 March 2021 and 15 August 2023 – so that the payments made to him by the [Nominal Insurer] during this period were excessive, and
(d) the [worker] did not require medical treatment costing $242.50.”[58]
[58] Reasons, [230].
The Member quoted from the reasons of McDougall J (McColl and Bell JJA agreeing) in Nguyen where his Honour said:
“Hodgson J … [writing extrajudicially said] ‘if, on the basis of adequate material concerning circumstances of a particular case, the tribunal [of fact] believes that an event has occurred, with the strength of that belief being at least such as would be indicated by a probability in excess of 50%, then the civil onus is discharged’. Thus, his Honour adhered to the requirement of a feeling of actual persuasion. But he made it plain that, once the feeling has been obtained, it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’.
In my view, that is the approach that should be adopted in the resolution of disputed questions of fact. It is something of particular significance where a resolution of the disputed question depends upon the drawing of inferences from entirely circumstantial evidence. It also accommodates the requirement that attention be paid to the seriousness of the fact in issue, or the consequences of finding that it has occurred.”[59]
[59] Nguyen, [51]–[52].
The Member described an acceptance of Mr Sader’s evidence as “crucial” if he were to be persuaded to make the findings which the employer seeks. He referred to Mr Sader’s statements dated 25 May 2021 and 15 December 2023. The Member said that at the time of the earlier statement he knew there was an investigation into the worker’s compensation claim, in which his statement would be used. He knew the employer was uninsured and acceptance of the claim would have financial consequences for it. It was “a serious situation” and Mr Sader would be expected to ensure the accuracy of his earlier statement. The Member referred to the following:
(a)    Mr Sader said Mr Saleh gave him a specific ABN. The number was in fact owned by another person with the same name. The Member said it was a reasonable inference that someone searched the ABN register without sufficient care and assumed the specific ABN was owned by Mr Saleh, the second respondent in these proceedings. Mr Sader said in his evidence that he did not know how the number “got there”. The Member said the earlier statement was clearly untruthful and Mr Sader was still willing to sign it.
(b)    Mr Sader said Mr Saleh worked for him one to two days per week, “around 10 days in all”. Mr Saleh, in his statement dated 8 December 2022, provided photographic and documentary evidence that he “at the least worked on 14 different days”, excluding the date of injury. The Member says Mr Sader then changed his evidence to say Mr Saleh worked, on average, three days per week.
(c)    Mr Sader in his earlier statement referred to Mr Saleh carrying villa board on the date of accident, in his later statement he said it was gyprock boards.
(d)    The Member described Mr Sader’s evidence in his earlier statement as “highly unsatisfactory” and said it “significantly affects his credit”.[60]
[60] Reasons, [234]–[236].
The Member identified “other unsatisfactory aspects” of Mr Sader’s evidence regarding his relationship with Mr Saleh:
(a)    Mr Sader produced two text messages informing Mr Saleh work was unavailable on a particular date. Mr Sader claimed in his evidence that he advised Mr Saleh by phone or in person as to available work. The two text messages were in the negative, informing Mr Saleh when work was not available rather than when it was. The Member said this suggested a full-time employment relationship where Mr Saleh would be expected to be available unless otherwise advised.
(b)    Mr Sader did not produce telephone records to clarify when he telephoned Mr Saleh. While he was under no obligation to do so, he did bear the onus of proof.
(c)    Mr Sader did not produce other business records regarding the jobs on which Mr Saleh worked, what was their nature and how long they went for. Again, the employer carried the onus. Similarly, Mr Sader did not produce the employer’s quotation for the job on which Mr Saleh was working on the date of injury, which may have contained relevant information.
(d)    Mr Sader did not produce any records regarding Mr Saleh’s pay rate, said to be $150 per day. Mr Sader’s explanations were “unconvincing from an accounting perspective”. A similar observation can be made regarding Mr Sader’s failure to deduct taxation payments from moneys paid to Mr Saleh, which was also unconvincing from a legal perspective.
(e)    Mr Sader said he could not have afforded to pay Mr Saleh $1,250 per week, but there are no records regarding Mr Sader’s financial position and he bore the onus of proof.
(f)    Mr Sader was aware Mr Saleh previously worked for the Commonwealth Bank, which is incongruous with Mr Sader’s allegation that Mr Saleh had an ABN.[61]
[61] Reasons, [237].
The Member said there was “one (admittedly crucial) relevant matter” on which Messrs Sader and Baccouni were in “clear agreement”. This was that Mr Saleh’s accident occurred “in the courtyard rather than on the stairs leading to the car park”, and that it “did not involve [Mr Saleh] falling (but just a gyprock board falling onto his right ankle), allowing him to walk unassisted to [Mr] Sader’s truck”. The Member said the employer submitted that Mr Sader’s version was corroborated by Mr Baccouni, but on closer inspection there were “many inconsistencies”. The Member, at [239] of his reasons, identified eight matters on which there was inconsistency between the evidence of Mr Sader and Mr Baccouni regarding events on the date of injury.[62] I will not recite these for current purposes.
[62] Reasons, [238]–[239].
The Member referred to a submission made on Mr Saleh’s behalf, which was summarised at [210(f)] of the reasons, and which the Member said he accepted:[63]
“[Mr] Sader’s evidence ‘beggars belief’ that on the date of [Mr Saleh’s] accident, he ‘simply wandered around the job site observing’, in circumstances where the [employer] was busy enough to engage the services of both [Mr Saleh] and [Mr] Baccouni, and was aware that the second respondent had ‘no skills other than his physical capacity’.”
[63] Reasons, [241].

The Member said:
“In order to assess the evidence of [Mr] Sader, I had the opportunity to not only witness him give his oral evidence, but I also had an opportunity to review a recording of that oral evidence. The recording confirmed my initial view that the evidence was often confusing or self-serving. He was especially not convincing regarding his account of how [Mr Saleh] was employed by the [employer], and in relation to the [employer’s] general work practices. His demeanour was concerning.
I am not persuaded by [Mr] Sader’s evidence. There were untruths told, as well as evasive, inconsistent, and implausible evidence given. The evidence needs corroboration in accordance with Malco [Engineering] …”.[64]
[64] Reasons, [242]–[243].
The Member said he was “not persuaded” that the evidence of Mr Baccouni provided the necessary reliable corroboration to Mr Sader’s evidence. The Member referred to the inconsistencies in Mr Baccouni’s, evidence identified in the Member’s reasons at [239]. He referred to Mr Baccouni’s “clearly incorrect evidence” that the worker only worked for the employer “on about 10–12 days”. He referred to Mr Baccouni’s “clearly close relationship” with Mr Sader, his brother-in-law. He referred to Mr Baccouni’s evidence regarding whether he had discussed the proceedings with Mr Sader, described by the Member as “initially unresponsive and then potentially contradictory”. The Member referred to Mr Baccouni’s recollection of the events of the date of injury. Mr Baccouni said he had not refreshed his memory, by reading his statement dated 25 May 2021, before giving evidence, and “during his oral evidence on numerous occasions that he could not remember certain matters”. The Member said there were doubts regarding whether Mr Baccouni’s statement was correctly interpreted to him. The Member said he found Mr Baccouni's oral evidence “often unresponsive, regularly confusing, and at times inconsistent”.[65]
[65] Reasons, [244].
The Member concluded he was not persuaded that the accident on 18 November 2020 did not occur in the manner described by Mr Saleh. He said the employer had not met its onus of proof in this regard. The Member said that, to the contrary, he was actually persuaded that the accident occurred as described by Mr Saleh. He said Mr Saleh had been consistent, his oral evidence regarding the accident was compelling and was not affected by cross-examination. There was consistent evidence in Mr Saleh’s statement,[66] his oral evidence[67] and his claim form dated 20 March 2021.[68] The Member said there was consistent reporting to Dr Bodel,[69] Dr Millons,[70] Dr Sarian,[71] Dr Popoff,[72] Dr Rosenberg,[73] Dr Zicat,[74] and Dr Sarian’s referrals to various specialists.[75]
[66] Reasons, [27]–[29].
[67] Reasons, [153]–[157].
[68] Reasons, [72].
[69] Reasons, [75].
[70] Reasons, [84].
[71] Reasons, [102].
[72] Reasons, [109].
[73] Reasons, [113].
[74] Reasons, [120].
[75] Reasons, [108].
The Member referred to submissions made by the employer, summarised at (a), (e) and (f) of the reasons at [196]. The Member described these submissions as “speculative” and said Mr Saleh’s evidence was “by no means implausible”.[76]
[76] Reasons, [247].
The Member said he had reviewed a recording of Mr Saleh’s oral evidence. He said this confirmed his initial view that the evidence was “given in a forthright, consistent and reliable manner”. He said there were issues with the recollection of medical consultations prior to 18 November 2020, but “the cross-examination was otherwise unremarkable, and did not cause [him] to question [Mr Saleh’s] version of how his accident … occurred”. This was particularly so given that the Member was not impressed with the evidence of Messrs Sader and Baccouni on this topic.[77]
[77] Reasons, [248].
On the topic of medical consultations prior to 18 November 2020, the Member found Mr Saleh’s evidence to be “occasionally evasive”. The Member noted matters from the prior medical history that were initially denied (complaints to the right hip, right shoulder and right ankle) and “recurrent left shoulder complaints for many years” were conceded, “although after some questioning”. The Member expressed concern regarding Mr Saleh’s denial of right shoulder complaints (this on 18 August 2020, three months before the date of injury: reasons at [38]). The Member concluded it was a single complaint to the right shoulder, in records going back to 2010.
The Member concluded this did not otherwise affect Mr Saleh’s general credibility as a witness. He said that although the recollection of prior medical consultations, before the subject injury, was “not entirely satisfactory” it did not reach “the intentional perjury standard discussed in Malco Engineering”. The Member said he exercised “extra care” when assessing the entirety of Mr Saleh’s evidence. This was “entirely different” to his view of the evidence of Messrs Sader and Baccouni.[78]
[78] Reasons, [249]–[252].
The Member referred to the submissions going to the lack of complaint, in the material from Royal Prince Alfred Hospital and Dr Swid, of injuries other than the right ankle occurring on 18 November 2020. Additional injuries to the right shoulder, back, neck, groin, right hip, right knee and right ankle were referred to when Mr Saleh consulted Dr Sarian on 27 January 2021. The Member said Mr Saleh proffered three reasons for this:
(a)    he was waiting to see Dr Sarian, which he could not do until 27 January 2021;
(b)    he did not wish to cause issues for Mr Sader, who was uninsured and had requested Mr Saleh not advise the accident had occurred during his employment, and
(c)    he was more concerned about his right ankle injury.
The Member said “these three reasons seem to be satisfactory”. He specifically accepted the second of the above reasons, saying Mr Sader’s first statement showed he was attempting to avoid liability for the accident.[79]
[79] Reasons, [253]–[256].
The Member quoted from the decision of Onassis v Vergottis,[80] dealing with the importance of contemporaneous medical histories in personal injury matters. He also quoted from the decision of Basten JA in Mason dealing with the need for caution in dealing with the clinical records of medical practitioners. The Member said the clinical records from Royal Prince Afred Hospital were “brief and inaccurate”. They referred to Mr Saleh being struck by a piece of marble (rather than a gyprock board). The records did not describe the accident as being work-related. The Member noted 18 November 2020 was during the COVID-19 pandemic, Mr Saleh described the hospital as “chaotic”, and Mr Saleh’s surgery was twice delayed due to parts of the hospital being isolated due to the arrival of COVID-19 patients. The Member said he was “cautious” as to the accuracy of the notes regarding the presence of injuries other than the right ankle. He was also cautious of the accuracy of the recording that no fall occurred on 18 November 2020, which involved a one-word answer, “No”.
[80] [1968] 2 Lloyd’s Rep 403 (Onassis).
The Member said he considered Mr Saleh’s reporting of the full extent of his injuries to Dr Sarian on 27 January 2021 to be sufficiently contemporaneous in the circumstances. He rejected the proposition that delay in undertaking x-rays affected Mr Saleh’s credit. He was waiting for a claim number, and for Dr Sarian to give him a referral. This was an “understandable explanation” as Dr Sarian had been his treating general practitioner for many years.[81] The Member said:
“Overall, in analysing both the statement and oral evidence given by [Mr] Sader, [Mr] Baccouni, and [Mr Saleh], I feel the persuasion necessary in accordance with Nguyen to accept the evidence of [Mr Saleh], as opposed to the evidence of [Mr] Sader and [Mr] Baccouni, in relation to how his accident on 18 November 2020 occurred. I find his credit to be much less affected than the credit of [Mr] Sader and [Mr] Baccouni.”
And:
“My finding will be that on 18 November 2020, [Mr Saleh] sustained injuries to his neck, right shoulder, back, right hip, right knee, and right ankle. These are the injuries accepted by the [Nominal Insurer] (see paragraph 73(b) above), and the [employer] has failed in its onus of proving that they did not occur.”
And:
“Having considered the entire medical evidence presented before me, I am satisfied that the second respondent suffered injury to his right ankle, right knee, right hip, back, neck, and right shoulder on 18 November 2020, in the course of his employment with the [employer] pursuant to s 4 of the 1987 Act, and to which his employment with the [employer] was a substantial contributing factor pursuant to s 9A of the 1987 Act.[82]
[81] Reasons, [257]–[264].
[82] Reasons, [265]–[266], [275].
The Member referred to Dr Allen’s report. He said he did not “afford much weight to Dr Allen’s opinions”. He said it was clear there had been a “significant disagreement” between Mr Saleh and Dr Allen during the consultation. Whoever was at fault, it affected the doctor’s ability to provide “a complete and reliable report”. The Member said there were mechanisms, such as s 119 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) that could have been used to require Mr Saleh to attend a further consultation with Dr Allen or a different doctor. These mechanisms were not used. The Member referred also to the employer’s complaint regarding the adequacy of documents produced by Dr Sarian. The Member said that, again, there were mechanisms to compel compliance, such as r 49 of the Personal Injury Commission Rules 2021, that were not used.[83]
[83] Reasons, [271]–[274].
The Member referred to the prior complaints of right hip pain (once) and right shoulder pain (once) prior to 18 November 2020. He noted Mr Saleh then performed labouring work with the employer and stated he had no physical restriction when he commenced. The Member said Mr Saleh would not have been able to perform that work if his previous complaints had been anything other than minor.[84]
[84] Reasons, [276].
The Member dealt with the issue of Mr Saleh’s PIAWE, calculated by the Nominal Insurer at $808.50. He approached the issue by asking whether the employer had proved that calculation to be wrong. The Member said that, for that onus to be discharged, it would be necessary that he accept Mr Sader’s statement and oral evidence, accept that Mr Saleh worked, on average, only three days per week, and accept that he was paid $150 per day. The Member did not accept these propositions. He referred to his earlier criticism of Mr Sader’s evidence. He accepted it would not have been financially viable for Mr Saleh to leave his position with the Commonwealth Bank to work with the employer if he was only being paid $450 per week. He said it was highly unlikely Mr Saleh would have had an ABN given his previous employment was at the Commonwealth Bank.[85]
[85] Reasons, [277]–[279].
The Member referred to Mr Saleh’s detailed information regarding the sites where he worked; he had photographic and documentary proof of work on 14 different days, in addition to the date of accident. Mr Sader produced two text messages that indicated there were two days, 26 and 27 October 2020, when Mr Saleh was not required to work. The Member said that, for him to accept Mr Saleh only worked on 15 days, he would need to be satisfied that Mr Saleh did not work at all over the period 22 October 2020 to 17 November 2020 (Mr Saleh did not have photographic evidence during this period). The Member said the employer had produced no business records to indicate why it did not require Mr Saleh’s assistance over this period. The Member said additionally there was a text message produced by Mr Saleh consistent with him working on 24 September 2020, which was a day additional to those otherwise proved by photographic and documentary evidence. The Member noted Mr Baccouni’s evidence that Mr Saleh worked for a total of only 10 to 12 days was, on any view, incorrect. The Member noted Mr Saleh’s amended taxation return was consistent with his evidence that he worked full-time being paid $250 per day. The Member said he did not find Ms Turkmen’s evidence of much assistance.
The Member said the evidence of each of Mr Sader and Mr Saleh contradicted that of the other. He said he had found Mr Sader’s evidence to be unreliable and the credit of Mr Saleh to be strong. The employer had not produced business records to corroborate Mr Sader. The Member said the employer had not discharged its onus of proving the PIAWE calculated by the Nominal Insurer of $808.50 was wrong. He said that, if anything, it should have been calculated at a higher rate.[86]
[86] Reasons, [279]–[282].
The Member turned to the issue of Mr Saleh’s current work capacity between 3 March 2021 and 15 August 2023, having regard to both the right ankle injury and the other injuries which he had found. Dr Sarian’s certificates certified there was “no current work capacity at all”. Dr Millons considered Mr Saleh was unfit for any work when he examined Mr Saleh on 27 September 2023. Dr Bodel, examining Mr Saleh on 1 August 2022, considered him to be totally and permanently incapacitated for work, with very poor prospects of returning to any form of paid work. The Member referred to reports from treating specialists who did not specifically deal with incapacity, but whose opinions were consistent with those expressed by Drs Sarian, Millons and Bodel. The Member said the employer relied on Dr Allen, whose opinion was that the right ankle injury would have been incapacitating for two to six weeks. The Member said Dr Allen’s comments did not assist in determining work capacity. The Member said the employer had not discharged its onus of proving Mr Saleh had work capacity during the relevant period.[87]
[87] Reasons, [283]–[290].
The Member referred to the inclusion in the reimbursement notice of $242.50 pursuant to s 60 of the 1987 Act. The notice did not indicate what the treatment was or who it was paid to. The Member noted s 145(5) of the 1987 Act provided that inclusion in the notice was proof that the payment was made “to or in respect of an injured worker”. The Member said particulars could have been sought by the employer, which bore the onus. The Member said s 145(5) of the 1987 Act required a party attempting to evade reimbursement to “positively prove that the payment was not made ‘to or in respect of an injured worker’”. The Member said this onus was not discharged.[88]
[88] Reasons, [291].
The Member made the following findings and orders:
“292. I find that the [employer] has failed to discharge its onus of proving that [Mr Saleh] did not suffer injuries to his neck, back, right shoulder, right hip, and right knee on 18 November 2020.
293. I find that on 18 November 2020, [Mr Saleh] suffered injury to his neck, back, right shoulder, right hip, right knee, and right ankle, pursuant to ss 4 and 9A of the 1987 Act.
294. I find that the [employer] has failed to discharge its onus of proving that the [Nominal Insurer] paid weekly benefits compensation to [Mr Saleh] pursuant to an incorrect PIAWE of $808.50.
295. I find that the [employer] has failed to discharge its onus of proving that [Mr Saleh] had current work capacity during the period between 3 March 2021 and 15 August 2023.
296. I find that as a result of [Mr Saleh’s] injury on 18 November 2020, he had no current work capacity during the period between 3 March 2021 and 15 August 2023. During that period, he was therefore entitled to weekly benefits compensation in accordance with ss 36(1) and 37(1) of the 1987 Act, his entitlement being calculated by the first respondent in accordance with a PIAWE of $808.50.
297. I find that as a result of [Mr Saleh’s] injury on 18 November 2020, he required medical treatment costing $242.50.
298. I find (with the agreement of the [employer]) that it was not insured in respect of its liability to compensate [Mr Saleh] in accordance with the 1987 Act, regarding his injury on 18 November 2020.
299. I find that the [Nominal Insurer] has compensated [Mr Saleh] in relation to his entitlements, as described in paragraphs 293–294 above. The [Nominal Insurer] has made a total payment of $91,724.88 in this regard. It has issued a valid notice dated 5 September 2023 to the [employer], in accordance with s 145(1) of the 1987 Act, requiring the [employer] to reimburse that amount to it.
300. I find the amount of $91,724.88 paid by the [Nominal Insurer] in this regard reflects the valid and legitimate entitlements of [Mr Saleh] to compensation with respect to his 18 November 2020 injury. I find the payment made to be both necessary and appropriate.
301. I therefore find that pursuant to s 145(3) of the 1987 Act, the [employer] is liable in respect of the payment made of $91,724.88.
302. The [employer’s] request for an order from the Commission pursuant to s 145(3) of the 1987 Act, that it is not liable to reimburse the amount of $91,724.88 to the [Nominal Insurer], is as a result refused.
303. The [employer] is to pay the first respondent the amount of $91,724.88.”

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
The appellant, in its pro forma appeal document, responded to a question “Can the appeal be decided solely on the basis of the written application and any written notice of opposition lodged?”, by marking the box “No”. In its written submissions accompanying the appeal the appellant stated the appeal:
“May be determined on the papers, but not until such time as the appellant receives the official transcript of the proceedings, and serves, in accordance with [33] of Procedural Direction WC3, supplementary submissions.”[89]
[89] Appellant’s preliminary submissions, [5(c)].
The appellant lodged supplementary submissions dated 10 April 2025, which addressed the transcript in detail, following its issue. The first respondent, the Nominal Insurer, lodged submissions dated 16 April 2025 which simply stated that it neither opposed nor consented to the orders sought in the appeal. The Nominal Insurer had not otherwise made submissions on the appeal. The second respondent, Mr Saleh, submitted the appeal could be determined on the papers.[90]
[90] Second respondent’s submissions, [5].
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum pursuant to s 352(3) of the 1998 Act have been met.
The appeal was lodged within time. The second respondent’s Notice of Opposition was lodged on 6 May 2025, outside the period specified in s 352(4) of the 1998 Act and r 124 of the Personal Injury Commission Rules 2021. The late filed Notice was accompanied by submissions apologising for the lateness and seeking an extension of time. The second respondent’s submissions referred to an administrative error with respect to the service of primary submissions and stated that counsel had been delayed in finalising the submissions. The second respondent’s submissions were accompanied by a copy email from his solicitors to those acting for each of the appellant and the first respondent, seeking consent. The Nominal Insurer consented to the late document. There was no sign of a response on behalf of the appellant.
The Direction of the President’s delegate dated 17 March 2025 provided that the respondents were to lodge Notices of Opposition by 21 April 2025 and to serve the Notices by 28 April 2025. No party makes active opposition to the extension of time sought by the second respondent. There is no suggestion of prejudice. There is some explanation for the delay. The time for lodgement of the second respondent’s Notice of Opposition is extended to 9 May 2025, the date on which it was registered. This is consistent with the ‘objects’ set out in s 3 of the 2020 Act, and with the ‘guiding principle’ in s 42 of the 2020 Act. It is appropriate in the interests of justice.

GROUNDS OF APPEAL

The appellant raises the following grounds of appeal:
(a)    The Commission erred as to a matter of law in finding, at [133] [sic, [233]], that an acceptance of the evidence of Mr Sader was crucial in order to make the factual findings contended for by the [appellant]. In reasoning to a conclusion, the [appellant] was capable of discharging its onus even if the evidence of Mr Sader was not accepted. Among other reasons, the contemporaneous clinical records and the evidence of Mr Baccouni was sufficient for the [appellant] to discharge its onus. (Ground No. 1)
(b)    The Commission erred, as to a matter of fact in finding, at [264], that the second respondent’s delay in undertaking x-ray imaging of his various alleged injuries in addition to his right lower limb injury did not affect his credibility, including because that finding was supported by a finding that the second respondent was “waiting for … Dr Sarian to refer him … as the doctor had been his treating general practitioner for many years.” The second respondent had earlier seen a different general practitioner in respect of his workplace injury, and there was no legitimate basis upon which to require Dr Sarian to refer him for imaging. (Ground No. 2)
(c)    The Commission erred as to a matter of fact in finding, at [269], that the second respondent’s version of events “was consistently given to the applicant’s [sic] treating medical practitioners”. That finding (presumably, intended to refer to the “second respondent’s treating medical practitioners” was contrary to the evidence in circumstances where the contemporaneous records in the two months after the injury to the right lower limb were inconsistent with the second respondent’s version of events. (Ground No. 3)
(d)    The Commission erred as to a matter of mixed fact and law, at [271], by discounting the reliability of Dr Allen’s opinion, and in otherwise not finding the opinion of Dr Allen to provide a basis upon which to doubt the reliability of the second respondent’s [account], because:
a) “his history of the second respondent’s accident is brief and does not include a fall onto stairs”. The Commission’s reasoning was circular, and proceeds on the basis that the second respondent’s account was truthful, and thus the failure of Dr Allen to obtain a history in accordance with it was evidence of its unreliability.
b) he relies upon there being insufficient objective evidence to confirm that the second respondent suffered any injury other than to his right ankle on 18 November 2020 – despite the overwhelming supportive medical evidence from the second respondent’s treating medical practitioners”. This reasoning is circular. (Ground No. 4)
(e)    The Commission erred, as to a matter of mixed fact and law, in failing to regard the evidence of the second respondent to be “compromised” in respects other than his recollection of his consultations with doctors prior to 18 November 2020. (Ground No. 5)
(f)    The Commission erred, as to a matter of mixed fact and law, in regarding the second respondent as a credible witness. (Ground No. 6)
(g)    With respect to the clinical records of Royal Prince Alfred Hospital, the Commission erred as to a matter of mixed fact and law, at [259]–[261]:
a) In regarding the records as “brief and inaccurate”.
b) In regarding the records as containing “a lack of observations of any other injuries”, when in fact they identified that the second respondent had “nil other injuries”.
c) In considering caution to be necessary in an acceptance of the records for reasons expressed in Mason v Demasi [2009] NSWCA 227, notwithstanding that Mason is factually analogous and ought to be distinguished.
d) In considering caution to be necessary in an acceptance of the records because of the use of a single word answer to record whether a fall had occurred (‘no’), notwithstanding that no ambiguity attended that answer and positively excluded the account provided by the second respondent. (Ground No. 7)

THE SCOPE OF THE APPEAL

It should be noted at the outset that the appellant accepts it is liable to the Nominal Insurer in respect of payments relating to the injury to the worker’s right ankle, but not the other body parts that were found to have been injured in the incident on 18 November 2020. If the appellant succeeds, it seeks orders that the matter be remitted to determine the quantum of its liability, assessed on that more limited basis.[91]
[91] Appellant’s preliminary submissions, [8].

THE ONUS OF PROOF

In Raniere Tobias JA (Hodgson JA and Stein AJA agreeing) said:
“That the employer’s liability to reimburse the Fund in respect of the amount of any payment made to the injured worker under the Scheme is a reference to its liability to pay the injured worker compensation under the Act is, in my opinion, confirmed by the terms of s 145(5). That subsection provides for the admissibility of a certificate executed by the Authority certifying firstly, the amount of any payment made to the injured worker and, secondly, that the person named in the certificate (the employer) was in the opinion of the Authority
‘liable at the relevant time to pay to or in respect of the injured worker compensation under [the] Act.’
Such a certificate becomes evidence of the matters stated in it. However, it is not conclusive and it is open to the employer to prove that at the relevant time it was not liable to pay compensation to the injured worker under the Act.”[92] (emphasis added)
[92] Raniere, [46].
In A1 Granny Flats v Workers Compensation Nominal Insurer[93] Phillips P quoted from the above passage and said:
“In short, it is the employer who bears the onus of proof in such circumstances as present in this matter.”[94]
[93] [2023] NSWPICPD 69 (A1 Granny Flats).
[94] A1 Granny Flats, [103].
The Member in his reasons at [227] said that the employer bore the onus of proving that it was not liable for the sums recorded in the reimbursement notice. This proposition is not challenged in the grounds of appeal.

SUBMISSIONS DEALING WITH THE DECISION OF STATE OF NEW SOUTH WALES V CULHANA[95]

[95] [2025] NSWCA 157 (Culhana).

The decision of the Court of Appeal in Culhana was issued on 17 July 2025, after the parties had lodged their submissions in the current appeal. The Commission issued a Direction to the parties dated 31 July 2025. The direction noted Culhana addressed the question of the correct approach to the nature of an appeal pursuant to s 352 of the 1998 Act. It invited the parties to provide any supplementary submissions with respect to Culhana and its effect on the current appeal. Further submissions were lodged by the appellant (dated 7 August 2025) and the second respondent (dated 14 August 2025).

The appellant’s further submissions

The appellant, in its further submissions dated 7 August 2025, submitted:
“3. It is now clear that the correct test is not whether the first instance finding was merely ‘open’ or ‘available’. Instead, the Presidential Member must conduct a review of the evidence, weigh the factual challenges properly, while still affording due regard to any advantage the original decision-maker may have enjoyed, and determine whether a different conclusion on a question of fact ought to have been reached. In such a case, the Presidential Member ‘should not shrink from giving effect to [a different conclusion]’ (at [91]).
4. Bearing in mind the correct test, in the [a]ppellant’s submission it is clear that the conclusions as to fact reached by the Member should not have been reached. Accordingly, on appeal, the Presidential member should have no hesitation in giving effect to a different factual finding. Having regard to the nature of the grounds of appeal, Grounds 2, 3 and 7 ought to now receive particular attention.”

The second respondent’s further submissions

The second respondent refers to the decision of the Court of Appeal in EB Murray Family Investments Pty Ltd trading as Bede Murray Racing Stables v Howard,[96] an appeal which was listed in the Court of Appeal shortly after the decision in Culhana, which was applied. The second respondent submits:
“5. In its summary, the Court of Appeal in Murray confirmed that the correct approach to appeals under s 352 in the [Commission], as identified in Culhana, was the previously adopted approach being that taken in Warren v Coombes [1979] 142 CLR 531; [1979] HCA 9 and Fox v Percy [2002] 214 CLR 118; [2003] HCA 22.
6. The Court of Appeal’s summary of the effect of the above in Murray was that it would require the presidential member to determine whether, after giving appropriate deference to the member’s factual advantage, a different conclusion should have been reached rather than deciding whether the finding was ‘open’.”
[96] [2025] NSWCA 169 (Murray).
The second respondent submits the Member’s conclusions were reached after “an exhaustive analysis of the evidence … where all witnesses were cross examined.” It refers to the reasons at [230] where the Member summarised the matters in issue on which the appellant carried the onus. The second respondent quotes from the reasons at [233] to [236] in which the Member was critical of Mr Sader’s evidence and concluded the evidence of Mr Sader required corroboration consistent with the decision of Malco Engineering (see [47] above). The second respondent quotes from the reasons at [244] to [247] in which the Member criticised the evidence of Mr Baccouni and said the evidence of Messrs Sader and Baccouni did not persuade him the accident occurred other than as the second respondent described. The Member said the second respondent’s oral evidence was “compelling and not affected by cross examination”; it was consistent with other evidence in the case.[97]
[97] Second respondent’s further submissions, [3]–[12].
The second respondent submits the approach suggested by the appellant “would require a complete abandonment of the [M]ember’s assessment of the credibility of witnesses”. The second respondent refers to House v The King[98] from which it quotes the following:
“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”[99]
[98] [1936] HCA 40; 55 CLR 499 (House v The King).
[99] House v The King, 504–505.

APPLICATION OF THE DECISION IN CULHANA

This appeal is brought pursuant to s 352(5) of the 1998 Act, which provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The Court of Appeal in Culhana specifically rejected the construction of s 352(5) which had been adopted in Raulston v Toll Pty Ltd[100] and in subsequent decisions which accepted the correctness of Raulston.[101] The correct approach to such appeals is that set out in the decision of the Court of Appeal in Culhana, in which Leeming JA (Bell CJ, Kirk, McHugh and Free JJA agreeing) quoted the following passage from Fox v Percy:
“Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’. In Warren v Coombes, the majority of this Court reiterated the rule that:
‘[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.’
As this Court there said, that approach was ‘not only sound in law, but beneficial in ... operation’.”[102] (citations omitted).
[100] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[101] See Culhana, [17].
[102] Fox v Percy, [2003] HCA 22; 214 CLR 118 (Fox v Percy), [25].
In Culhana Leeming JA said:
“No one doubts that questions of law must be determined afresh by a Presidential member if it is said that the member erred. Nor is it doubted that where the member has seen the applicant or other witnesses and made findings of fact based on their evidence, the member will be in a position of advantage over a Presidential member who will, in the ordinary case, determine the appeal on the papers.”[103]
And:
“Future appeals under s 352 should apply the approach in Warren v Coombes and Fox v Percy. Appropriate deference is to be given to members where their findings are based on evidence in respect of which they have an advantage (such as the kind identified in Lee v Lee at [55]) over the Presidential member hearing an appeal. But it is not sufficient for an appeal to be dismissed on the basis that an inference was ‘open’ to the member, as if the member were a jury and there was some evidence supporting it. If the Presidential member, after making appropriate allowance for the advantages enjoyed by the member, would reach a different conclusion on a question of fact, he or she should not shrink from giving effect to it. Otherwise, the Presidential member will be dismissing an appeal but without fully addressing whether there is an error of fact, law or discretion.”[104]
[103] Culhana, [76].
[104] Culhana, [91].
In Lee v Lee the plurality said:
“A court of appeal is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, ‘in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge’.”[105] (excluding references)
[105] [2019] HCA 28; 266 CLR 129 (Lee), [55].
In Eppinga v Kalil the Court of Appeal (Payne JA, Kirk and Stern JJA agreeing) quoted from Lee and said:
“In the present appeal, the findings of fact under challenge are based on credit findings ‘likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing [the witnesses] give their evidence’. To set those findings of fact aside, this Court must be persuaded the findings were ‘glaringly improbable’ or ‘contrary to compelling inferences’. I am not so persuaded.
I have concluded that it was well open to his Honour to form the view that he did of the credit of both Ms Eppinga and Ms Eather. That view was formed based on a number of matters, including the manner in which both witnesses gave evidence. The primary judge found that Ms Eppinga was combative and defensive; Ms Eather was measured and prepared to make appropriate concessions. These were essentially demeanour-based credit findings.”[106]

GROUND NO. 1 – WHETHER MR SADER’S EVIDENCE WAS CRUCIAL

[106] [2023] NSWCA 287, [42]–[43].

Appellant’s submissions

The Member’s reasons at [230] are quoted at [41] above. The appellant refers to the reasons at [233] which read:
“An acceptance of [Mr] Sader’s evidence is crucial if I am to be persuaded by the [employer] to make factual findings as discussed at paragraph 230 above.”
The appellant refers to other evidence which it submits would support a finding that the worker did not injure body parts (other than the right ankle) in the incident on 18 November 2020. The other evidence referred to is predominantly that of Mr Baccouni and the clinical notes from Royal Prince Alfred Hospital.[107] The appellant additionally refers to an absence of contemporaneous complaint to “treating doctors” and to the report of Dr Allen.[108]
[107] Appellant’s preliminary submissions, [12]–[13].
[108] Appellant’s supplementary submissions, [4].
The appellant also refers to other matters raised in [230] of the reasons, not of a medical nature: PIAWE, current work capacity and treatment costs. The appellant submits Mr Sader’s evidence “had little, if anything, to do with factual findings”.[109] The appellant submits it follows that the Member’s findings were “necessarily the result of an improper process of reasoning and must be set aside”.[110]
[109] Appellant’s preliminary submissions, [11].
[110] Appellant’s supplementary submissions, [4].

Second respondent’s submissions

The second respondent refers to the matters described in the reasons at [230], to which Mr Sader’s evidence was said to be “crucial”. It notes this references the nature of the proceedings, a claim seeking to recover compensation paid on behalf of an uninsured employer.
The second respondent states the appellant’s position was that the only injury suffered by the second respondent was to his right ankle, which accorded with Mr Sader’s evidence, he claiming to be a direct witness to the incident. The Member did not accept Mr Sader’s evidence on this point. The second respondent submits the Member then looked elsewhere for corroborative evidence of the injury in respect of which compensation was paid. The Member dealt with Mr Baccouni’s evidence but found it also to be unreliable. In those circumstances the Member accepted the worker’s evidence in concert with clinical material which he identified. The second respondent submits this involved a clearly defined path of reasoning which did not disclose error.[111]
[111] Second respondent’s submissions, [18]–[25].

Consideration

The Member’s reasons should be read as a whole.[112] The appellant’s submissions on this ground specifically rely on the reasons at [233], in which the Member observed that “acceptance of [Mr] Sader’s evidence is crucial if I am to be persuaded by the [employer] to make factual findings as discussed at paragraph [230] above”. Mr Sader was the principal of the appellant, which disputed the worker’s version of the accident, to which Mr Sader said he was a witness. The dispute regarding how the accident occurred was of clear relevance to whether the Member accepted the worker’s version, and to whether the other injuries (beyond the right foot and ankle) resulted from the accident or not. Clearly, evidence from Mr Sader on this topic was of critical importance in resolving the injury and causation issues going to the other body parts allegedly injured. I cannot see how the Member’s use of the word “crucial” in the circumstances amounted to error. The reference in the appellant’s submissions on this ground, to PIAWE and work capacity, are not significant to the main issues between the parties and are something of a distraction.
[112] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 444.

The appellant submits the Member erred in treating Mason as supporting a need to approach the hospital records with caution. It submits Mason can be distinguished; in that case there were material omissions in the history taking. It submits in the current matter there was no evidentiary basis to find the history taking was incomplete and “it is nonsense to think such error occurred”. It submits the hospital records do not support the worker’s version of events because that version “is false”.[129]
[129] Appellant’s preliminary submissions, [47]–[49].
The appellant repeats its criticism of the worker’s “delay” in undergoing x-rays after 18 November 2020. It criticises the worker’s evidence regarding his appointment with Dr Allen. It refers to the worker’s evidence regarding a motor vehicle accident in February 2017. It submits listening to the recording of the worker’s evidence on this topic[130] is “critical”. The appellant submits the audio recording of the worker’s evidence should cause doubt regarding his credit. [131]
[130] At T2, T2 17.34–20.00.
[131] Appellant’s supplementary submissions, [23]–[25].
The appellant submits the worker incorrectly denied prior complaints in body parts that were allegedly injured on 18 November 2020.[132] The appellant submits the finding that the worker was a credible witness cannot stand, the worker’s evidence was compromised. It submits the Member’s findings on credit were “glaringly improbable” and “contrary to compelling inferences”. It submits there is “little evidence that the Member’s findings on credit reflected advantages in seeing and hearing [the worker]”. It submits the findings do not appear to be based on demeanour, and I am in as good a position as the Member to draw inferences from proven facts and the evidence as a whole. It submits the worker was not a credible witness.[133]
[132] T2 12.33–13.09.
[133] Appellant’s supplementary submissions, [26]–[28].
The appellant submits, dealing with Ground No. 7, that Mason can be distinguished. The appellant repeats its submission that the Member erred in his assessment of the probative force of the hospital notes. The appellant repeats its submission based on the hospital notes, on the basis the notes do not contain complaints beyond the right foot and ankle. The submissions contain a table, which I will not reproduce here, that sets out various complaints recorded in the notes. The appellant has placed emphasis on the complaints “Foot v marble block”, “Dropped piece of marble onto foot”, “Otherwise fit + healthy”, “Nil other injuries” and “Large marble slab fell onto top of foot/ankle”. The complaints recorded in the table do not refer to injury other than to the right foot and ankle.
The appellant describes it as error for the Member to characterise the notes as “brief and inaccurate”. It submits they are notes of a kind “routinely relied upon in forensic assessments of injury”. The appellant submits the description of the item that struck the worker as “marble” was consistent with the history given by the worker at the hospital.[134]
[134] T2 40.10–27, appellant’s supplementary submissions, [28]–[35].
The appellant submits there was no evidence of failure by hospital staff to record an adequate history. It submits that to do so would be a breach of their obligations in treating the worker and it is “nonsense to think such error occurred”. The appellant submits the records do not support the worker’s version because that version is false. The appellant submits the worker could not “give a sensible explanation for why the records of RPAH read as they did”. When asked in cross-examination whether he said anything to doctors and nurses at the hospital “about your injuries at any time” he responded, “Can’t recall”. The appellant refers to evidence from the worker, when asked whether he would answer truthfully if asked by a doctor or nurse whether he had had a fall, to which he said “Yes.” The appellant submits this response in the evidence of the worker should be accepted.[135]
[135] T2 38.01–06, appellant’s supplementary submissions, [37]–[42].

Second respondent’s submissions

The second respondent submits:
“Despite having previously raised the argument, which was dealt with and determined by the [M]ember in his reasons, the appellant seeks to reagitate the same issue which it [then] traversed further in the fifth and sixth grounds of appeal as the basis for an alternative outcome to that arrived at by the [M]ember.
It is clear from the [M]ember’s reasons that he engaged with the appellant’s disquiet relative to the asserted discrepancies in the clinical reporting, expressed vociferously at first instance, he identified the argument, and provided a clear path of reasoning as to why he preferred an alternative approach.”[136]
[136] Second respondent’s submissions, [31]–[32].
Dealing with the hospital notes the second respondent submits:
“The appellant ignores a central issue to the [Member’s] analysis of the Royal Prince Alfred (RPA) records; the manner in which they were created (see reasons par 263(b)).
Again, the appellant elevates the RPA's records to a level, from an evidentiary point of view, that the Courts … have consistently cautioned against.
The [M]ember at paragraph 263 was at pains to explain why he had taken a more cautious approach to the records as far as their place in the overall evidentiary picture was concerned.”[137]
[137] Second respondent’s submissions, [38]–[40].

Consideration

The worker’s demeanour under cross-examination has been discussed above. The challenge to the worker’s credit, based on his explanation for not undergoing x-rays until August 2021, has been discussed above. The issue of whether the audio of the worker’s evidence casts doubt on his credibility has been discussed above.
It is necessary to deal with Mason. There is a well-known line of authority, of which Mason is part, regarding the weight to be attached to the notes of treating medical practitioners. In Container Terminals Australia Ltd v Huseyin[138] Basten JA said:
“In the present case the appellant sought to challenge the acceptance of oral testimony of the plaintiff in part on the basis of inconsistent histories given to medical practitioners. The apparent inconsistencies were put to the plaintiff in cross-examination, without obtaining any significant concession. Her Honour was entitled to discount the inconsistencies, for reasons which might have been repeated, but which are too commonplace to require repetition. They include the following:
(a) the medical practitioner who took the history was not cross-examined about the accuracy of what was recorded (often, for good reason, because it is unlikely that he or she will have any real recollection of the circumstances in which the record was made);
(b) medical histories were taken in furtherance of a purpose which is not identical with the purpose of establishing liability in tort;
(c) the histories did not make reference to the questions which elucidated the replies;
(d) the material recorded was a summary of answers rather than a verbatim recording, and
(e) there may be a range of factors, including fluency in English, the practitioner’s knowledge of the background circumstances of the accident and the patient’s understanding of the purpose of the question, which will affect the content of the history.”[139]
[138] [2008] NSWCA 320 (Huseyin).
[139] Huseyin, [8].
In New South Wales Police Force v Winter Campbell JA (Giles JA and Handley AJA agreeing) said:
“It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; King v Collins[2007] NSWCA 122 at [34]–[36]).”[140]
[140] [2011] NSWCA 330 (Winter), [73].
In Mason Basten JA said:
“First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a) the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c) the record did not identify any questions which may have elucidated replies;
(d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e) a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.”[141]
[141] Mason, [2].
The appellant submits Mason can be distinguished, as that case involved “material omissions due to limitations in the medical history taken”. It submits that, in the current case, the notes expressly recorded “nil other injuries”. It submits there is no evidence of medical staff failing to take an adequate history in the current matter. It submits there was unambiguous evidence denying a fall.
The authorities referred to above do not rely on specific evidence of deficiencies in the history taking in individual cases (although, if present, this could obviously be relevant). The range of factors identified by Basten JA in Huseyin and Mason were not specific to the circumstances of those cases. What the decisions point out is the potential limitations of such evidence having regard to its source, and the associated care that should be taken in considering its acceptability and weight. It is appropriate to have regard to the context in which such documentary evidence was brought into existence.[142]
[142] ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24; 388 ALR 128, [28]–[29]; J & E Vella Pty Ltd v Hobson [2023] NSWCA 234, [5].
In the current matter, the Member identified a number of factors that could be relevant to the weight to be given to the evidence from Royal Prince Alfred Hospital (see [56] above). One of these (the inaccurate reference to the worker being struck by marble) should be left aside, bearing in mind the worker, in cross-examination, conceded having said this to hospital staff. The other factors mentioned were valid. The hospital attendance was during the COVID-19 pandemic. The hospital was described as “chaotic”. The worker’s surgery was twice delayed due to the arrival of COVID-19 patients. The recorded history at the hospital failed to refer to whether the incident was work-related, something that is typically recorded in such histories. The Member considered the weight of the hospital notes by reference to the discussion in Mason, an approach which was available, consistent with authority and appropriate.
The appellant submits the Member’s findings were not based on demeanour. The Member made an adverse credit finding regarding Mr Sader at [242] to [243] of the reasons which was clearly based on his observations of Mr Sader giving evidence, and which specifically referred to Mr Sader’s demeanour. The Member made a generally positive assessment of the worker’s credibility (although with some reservations) in his reasons at [246] to [252]. At [248] the Member said the worker’s evidence was given in “a forthright, consistent and reliable manner”, this based on the Member’s “witnessing of the evidence being given”. The Member said his initial view was confirmed on reviewing a recording of the oral evidence. I note Lee at [55] refers to the need for appellate restraint in respect of:
“… findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.”
I do not accept the submission that the Member’s credibility findings were not based on demeanour.
The appellant refers to Dr Swid’s consultations on 1 December 2020, 15 December 2020 and 14 January 2021. It submits the notes of these visits referred only to the right ankle injury. The Member accepted the worker’s explanation for the lack of complaint to Dr Swid, of injury to body parts additional to the right foot and ankle. This was that he was waiting to see Dr Sarian, that he did not wish to cause trouble for Mr Sader who was uninsured, and that his primary concern was the right ankle injury (see the Member’s reasons at [253] to [256]).
Dr Swid’s clinical notes on 1 December 2020, 15 December 2020 and 14 January 2021 (like the hospital notes) did not mention that the injury occurred at work. The notes dealt largely with practical treatment of the serious ankle injury. On 1 December 2020, the worker was using crutches and Endone was prescribed. On 15 December 2020, the worker was mobilising with crutches, sutures were removed, the wound was cleaned and dressed, the worker was advised on the use of a ‘camboot’ and Endone was prescribed at a reduced rate. On the last of these consultations, on 14 January 2021, there was a complaint of skin tenderness and scratching in the right gluteal region. The worker was using crutches and a camboot and told the doctor he had attended a clinic at the Royal Prince Alfred Hospital on 8 January 2021, where there was physiotherapy and Endone was not given. The notes are consistent with the third of the reasons (set out in [135] above) that the Member accepted in respect of the initial lack of complaint of matters other than the right ankle. They are not inconsistent with the first and second of those reasons. They do not significantly assist the appellant’s challenge to the worker’s credibility.
The appellant refers to an entry in the hospital notes on 18 November 2020, which recorded the worker did not present to the hospital with a fall and had not fallen within the past two months.[143] The note appears beneath a heading “Screening for Risk”. There is a list of matters which range from “Pregnancy Status” and “Breastfeeding/Lactation”, through “Major surgery or Trauma”, “Neurological Deficits” and “Severe Illness”, to whether the patient has a history of smoking, drinking alcohol or recreational drug use. The responses were prepared by a named registered nurse. Other matters listed included whether there was a history of presenting “to hospital with a fall”, having “fallen within the past 2 months”, and “vision issues, blurred vision, eyeglasses etc”. This part of the notes then gave a “Falls history score” and an “OMS Falls Risk” (each of “0”). The note went on to assess the falls risk in additional categories, which included “Confused?”, “Disorientated?”, Agitated?”, “Vision”, “Glaucoma” and “Toileting”.
[143] AALD 27/2/24, pp 204–5, 217.
One of the factors referred to in Mason, as relevant to the weight to be afforded to histories recorded in the notes of treating practitioners, was the purpose for which such a history was recorded. This will often differ from the use for which the history is deployed in the proceedings. This section of the notes produced a “Discharge Risk Assessment” which dealt with whether the patient was likely to have self-care problems, the patient’s living arrangements, caring responsibilities and current community services. This aspect of the notes is consistent with a purpose different to that for which the appellant seeks to employ the history. One would not expect it to necessarily provide a clear history of the mechanics of the worker’s injury on 18 November 2020. The Member said he exercised “significant caution in the weight” that he gave to the hospital records and the notes of Dr Swid, relying on Mason.[144] The way in which the Member dealt with this evidence was consistent with Mason and related authorities. It did not, in my view, involve error.
[144] Reasons, [261]–[263].
I have not accepted the various submissions raised in support of Grounds Nos. 5, 6 and 7. Those grounds fail.

GROUND NO. 3 – THE FINDING REGARDING CONSISTENT HISTORIES

Appellant’s submissions

The appellant refers to the finding at [269] of the reasons. It is necessary to read that paragraph with [268] which precedes it:
“268. I have accepted that the second respondent’s accident on 18 November 2020 occurred in accordance with his evidence that he dropped a gyprock board onto his right knee and then onto his right ankle while he was descending stairs, and then fell backwards onto the stairs, injuring his back, neck and right hip, while other gyprock boards fell onto his right shoulder.
269. As discussed, this evidence was consistently given to the [second respondent’s] treating medical practitioners, as well as to Dr Millons. Their opinions were therefore given in a ‘fair climate’ in accordance with Paric v John Holland (Constructions) Pty Limited [1985] HCA 58 and Paric v John Holland (Constructions) Pty Limited [1984] 2 NSWLR 505. Dr Bodel’s history however was that the second respondent fell down the stairs, and it is questionable therefore whether his opinion as to the injuries caused was given in a ‘fair climate’.”
The appellant submits there was not consistent reporting, in that the worker failed to report the injury to body parts other than the right leg. It refers to Nguyen and the need for a factfinder to be persuaded of the occurrence of a fact. It refers to Onassis and Watson v Foxman.[145] The appellant submits that if the worker “had a fall down the stairs with debris falling on top of him or along with him” he “would have revealed same to the hospital staff” (emphasis added). It submits “[n]o such history ever appears”. The appellant refers to Dr Swid’s notes which do not include a history of injury other than to the right leg. The appellant submits there was not consistent reporting to the treating doctors. It submits this should have raised serious doubts regarding the worker’s credibility.[146]
[145] (1995) 49 NSWLR 315 (Watson).
[146] Appellant’s preliminary submissions, [19]–[27].

Second respondent’s submissions

The second respondent describes this ground as being related to Ground No. 2. The second respondent submits the Member thoroughly analysed the issues, typified by the observation at [261] of the reasons:
“The brief nature of the notes is understandable in the circumstances, and for the reasons enunciated in Mason, I am cautious as to their accuracy regarding their lack of observations of any injuries other than to the second respondent’s right ankle. I am also cautious as to their accuracy of recording that no fall occurred on 18 November 2020, especially as that recording is a one-word answer of ‘No’ (see paragraph [127] above).”[147]
[147] Second respondent’s submissions, [28]–[29].

Consideration

The appellant’s submissions on this ground are framed on the basis the worker’s version of the injury was that he suffered a “fall down the stairs with debris falling on top of him” (emphasis added). The worker’s version of the accident was set out in the reasons at [154] to [156]:
“154. He said that the accident occurred around the fourth-fifth step shown in the photograph. He did not fall down the steps, but landed on them. At the time, he was carrying four or five gyprock sheets with tiles attached to them. He had collected the sheets from the bathroom where [Mr] Sader and [Mr] Baccouni were working. He picked up around two sheets, and [Mr] Sader loaded others on to him. He was carrying the sheets with both arms in a cradled position. The total weight of the load that he was carrying would have been 40–50 kg. The sheets varied in size and shape.
155. Only one of the gyprock sheets came loose while he was walking down the steps, and it struck his ankle. He was not sure how the sheet came loose. He then fell backwards onto the steps, and gyprock sheets fell on top of him. He landed on his back and right arm, and the sheets hit his right shoulder and his right groin, but not his neck, back, left shoulder, or right hip. Some of the sheets then went further down the steps, but not to the bottom of the steps.
156. He felt his back ‘slam’ onto the steps, and he also hurt his neck when he fell back onto the steps.” (emphasis added)

The Member specifically found that the accident happened “in the manner described by the second respondent”.[148] Contrary to the appellant’s submissions, the worker’s accepted evidence was not that he suffered a fall down the stairs. Contrary to the appellant’s submission, one would not have expected a history that he fell down the stairs when his given history was that he fell backwards on the steps landing on his back and right arm.
[148] Reasons, [246].
The appellant’s submissions refer to the history recorded at the hospital going to whether the worker had a fall. This has been discussed above. The appellant raises Dr Swid’s notes regarding the consultations on 1 and 15 December 2020 and 14 January 2021.[149] It raises the absence of recorded complaint to the hospital and to Dr Swid of complaints other than those relating to the right foot and ankle. The date of injury was 18 November 2020. The worker was discharged from hospital on 21 November 2020. The appellant’s challenge to the consistency of the history recorded by Dr Swid, on the three consultations that followed the accident, is dealt with above at [135] to [138] of these reasons. I did not conclude that this aspect of the Member’s reasons involved appealable error.
[149] Appellant’s preliminary submissions, [23]–[24].
The Member at [269] of his reasons referred to the consistency of histories in the context of Paric v John Holland Constructions Pty Ltd.[150] Paric is an authority that deals with the need for an expert medical opinion to be based on admissible evidence, and the effect of a lack of correlation, between the provable facts and the assumed history, on the weight of such expert evidence. Whether the evidence on which the worker relies, for expert medical opinion, correlates appropriately with the proven facts depends on the version of the contested facts which is accepted. The history for which the appellant advocates is that which it argues may be inferred from the hospital records, together with Dr Swid’s notes from 1 and 15 December 2020 and 14 January 2021. The appellant’s reliance on this material is more as evidence of fact (regarding the injury suffered by the worker) rather than medical opinion evidence. It may be accepted that, if the only injury suffered by the worker on 18 November 2020 was to the right ankle region, the later medical opinion dealing with other injuries would potentially be deprived of persuasive force. This is consistent with Paric.
[150] [1984] 2 NSWLR 505; [1985] HCA 58; 59 ALJR 844 (Paric), [8]–[10].
The Member described the history of multiple injuries, set out at [268] of his reasons, as having been “consistently given to the [second respondent’s] treating medical practitioners, as well as to Dr Millons”. I would not describe the Royal Prince Alfred Hospital as a “treating practitioner”. The history recorded at the hospital has, in any event, been discussed at some length above. The various doctors consulted by the worker, after discharge from the hospital, were given the history of multiple complaints, with the exception of Dr Swid. To this extent, the Member misstated the history recorded by Dr Swid. The Member was clearly aware of that history, he dealt with it in his reasons at [253] to [255], and [259] to [263]. The Member accepted the worker’s given reasons for not mentioning the multiple other injuries, in both the histories recorded at the hospital and by Dr Swid. Reading the reasons as a whole, the Member did not proceed on any misapprehension regarding the true state of the medical histories. To the extent to which the Member misstated the history recorded by Dr Swid, there is no basis to regard this as material error.[151]
[151] See generally, Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409, 419, quoted in Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287, [110].
Ground No. 3 fails.

GROUND NO. 4 – DR ALLEN’S OPINION

Appellant’s submissions

Dr Allen was qualified on the appellant’s behalf. The appellant submits the Member erred in not finding the doctor’s opinion provided a basis to doubt the worker’s reliability. Two specific reasons are given in support of this submission:
(a) The Member described Dr Allen’s history of the accident as “brief and [it] does not include a fall onto stairs”. The appellant submits this reasoning is “circular”, it assumed the truthfulness of the worker’s account and thus argues that the doctor’s history was unreliable because it was different to the worker’s evidence.
(b) The Member relied on insufficient objective evidence to confirm injury on 18 November 2020, other than that to the right ankle. The Member said this was despite “overwhelming supportive medical evidence from the [worker’s] treating medical practitioners”. This reasoning is submitted to be circular.
The appellant submits Dr Allen (unlike Drs Bodel and Millons) was provided with the entirety of the medical evidence. The appellant submits the worker’s statement dated 12 March 2024 gives an untrue account of events on the day of Dr Allen’s assessment. The appellant submits the worker’s statement is consistent with the doctor, without cause, becoming agitated, refusing to conduct a formal examination and abandoning the assessment. The appellant submits “the only available inference” (emphasis in original) is that the worker did not wish to be interrogated about his injuries and crafted an explanation to excuse his behaviour. It submits it was error that the Member accepted the worker’s evidence on this point, and the worker’s evidence should have affected his credibility generally.[152]
[152] Appellant’s preliminary submissions, [29]–[34].
The appellant states the Member, in the reasons at [271(a)], said he did not “afford much weight to Dr Allen’s opinions as (a) his history of the [worker’s] accident is brief and does not include a fall onto stairs”. The appellant submits this is circular reasoning, it assumed a fall onto stairs when it was the appellant’s case that there was not a fall onto stairs. The appellant submits there was a similar difficulty with the Member’s reason at [271(d)] of the reasons – Dr Allen considered there was insufficient evidence to confirm any injury beyond that to the right ankle, despite overwhelming support for that proposition from the worker’s treating medical practitioners. The appellant submits the Member “faulted” Dr Allen for reaching a different conclusion, rather than engaging with Dr Allen’s opinion and reasoning. It submits this was not a reasoned determination of the evidence.[153]
[153] Appellant’s preliminary submissions, [35]–[38].
The appellant also disputes that there was “overwhelming supportive evidence” of the injuries other than the right lower limb. It submits that for two months the treating records were silent with respect to any such injuries. The appellant submits the Member erred in not regarding Dr Allen’s opinion as a basis to reject the credibility of the worker.[154]
[154] Appellant’s preliminary submissions, [39]–[40].
The appellant additionally has lodged supplementary submissions dated 10 April 2025. The appellant in these quotes from Dr Allen’s report dated 30 January 2024.[155] The appellant also quotes from the transcript of 19 March 2024, in which the worker was cross-examined about the examination with Dr Allen.[156] The appellant quotes the following from Dr Allen’s report:
“Mr Saleh was a hostile attendee.
Mr Saleh attended for an assessment today, but cooperated poorly with the assessment.
Despite being advised that there was no recording to be undertaken Mr Saleh nevertheless attempted to record the assessment today and refused to cooperate with the physical examination.
His interview and assessment of the history was generally uncooperative and during the examination an attempt to assess the various joints was complicated by voluntary restriction in motion and poor cooperation.
When the inconsistencies in examination were noted to him his cooperation deteriorated further and the examination was abandoned.
Furthermore, he refused to allow me the opportunity to review his X-rays which he brought with him and insisted on taking them out of the room with him.
Owing to the lack of cooperation a full examination could not be undertaken and the following report constitutes the total of the assessment available.
The assessment was terminated by joint consent.”[157]
[155] AALD 27/2/24, pp 118–128.
[156] T2 47.15–49.25.
[157] AALD 27/2/24, pp 119–120.
In the transcript of his evidence the worker denied being “entirely uncooperative” and not happy to be there. The worker denied refusing to let the doctor review his x-rays. The worker agreed that he was not prepared to leave the x-rays with the doctor and when asked why the worker responded, “Because he was telling me to get out of the room …”. It was put to the worker that Dr Allen was “never angry with [him]”, which the worker said was “not correct”. The worker agreed the doctor told him that he was “purposely not trying”. The worker said he responded that he was happy to do whatever was asked of him. He agreed the doctor said, “Put your clothes on, we’re finished”. The cross-examination of the worker included the following:
“Q. And the reason you didn’t want Dr Allen to examine you was because there was nothing wrong with your back or your neck or your shoulders in relation to this incident in November 2020, is that right?
A. No.”[158]
[158] T2 49.14–18.
The appellant submits the evidence of the doctor and the worker was “utterly irreconcilable”. It submits this should have caused doubts about the worker’s reliability. It submits the Member erroneously discounted the reliability of Dr Allen’s account with circular reasoning, which presupposed the accuracy of the worker’s account. It submits Dr Allen’s report was “not given due weight”.[159]
[159] Appellant’s supplementary submissions, [12]–[20].

Second respondent’s submissions

The worker submits the appellant’s position is that the Member should have relied on Dr Allen’s evidence as a basis to reject the worker’s evidence. The worker submits the Member’s analysis approached the issue from the perspective of the appellant’s onus. He submits the appellant’s position is that the Member should have relied on Dr Allen’s opinion of the worker’s credibility, in making his own determination of the worker’s credibility, which is described as a “curious argument”.
The worker submits the Member dealt with Dr Allen’s report at some length and explained his reasons for preferring other evidence, there was no error.[160]
[160] Second respondent’s submissions, [34]–[37].

Consideration

Dealing with the first of the specific points raised by the appellant (see [149] above), the Member’s finding of injury, in a vigorously contested case, was made on the whole of the evidence. The Member discussed (at some length) the credit of the witnesses who gave oral evidence (in his reasons at [233] to [265]). He made specific findings on the mechanics of the injury, consistent with his acceptance of the worker’s evidence, at [268] of his reasons. This included a finding that, after dropping a gyprock board onto his right leg, the worker “fell backwards onto the stairs, injuring his back, neck and right hip, while other gyprock boards fell onto his right shoulder”.
The appellant submits Dr Allen was provided with the entirety of the medical evidence. Dr Allen’s report, under the heading “History Of Presenting Complaint”, described the following:
“On the date in question, being 18 November 2020 he was at work when a piece of gyprock fell and lacerated the front of his right ankle.
He went to hospital where the laceration was treated and sutured and he remained in hospital on an intravenous drip for four days.
X-rays were taken and demonstrated no fractures.
The only injury noted at the time was the injury to the right ankle.
The admission notes from hospital at the time note the laceration of the ankle and its treatment.
There was no other injury noted.
In particular, there is no injury to his spine, neck, shoulders, knee or any other parts of the body. Though Mr Saleh remained in hospital for a few days, there is no reference at all to any other injuries over and above the ankle laceration.
Mr Saleh subsequently claimed an injury to his back, neck, right shoulder and right knee for which he had some investigations in 2021. These are not injuries which are noted at the time of his initial assessment and are considered therefore entirely independent of the injury sustained which was a laceration to the right ankle.
He has had investigations for these various conditions, has been treated with physiotherapy and has also now been recommended a surgery on his right shoulder. None of these treatments can be attributed to the reported accident.
Of note is that he has been taking Endone and Panadeine Forte continuously for the last three years.”[161]
[161] AALD 27/2/24, pp 120–121.
The history set out above is consistent with being compiled from the medical evidence, in particular the notes from Royal Prince Alfred Hospital. It is quite unlikely it represents a history furnished by the worker to the doctor. Dr Allen’s above assessment of the ‘injury’ issue (unsurprisingly) took no account of the many factors, involving legal issues and findings on credit, that led the Member to reach the conclusion which he did. The submission that the Member assumed the truthfulness of the worker’s account is incorrect. Following an extensive consideration of the evidence and the credibility of the witnesses, the Member made a finding, for which he gave reasons, that he accepted the worker’s evidence of how the injury took place. Dr Allen plainly rejected the truth of the worker’s account, referring to the hospital notes and the notes of Dr Swid, which had been furnished to him. The worker submits, in my view correctly, that the appellant’s position is that the Member should have accepted Dr Allen’s opinion on the worker’s credit and the injury issue. These were not simply medical issues. They were issues which had to be decided on the whole of the evidence, including consideration of the credit issues.
The second specific point made by the appellant is that there was insufficient objective evidence of injury on 18 November 2020 to body parts other than the right ankle. This submission appears to relate to the delay in documented complaints of the other body parts, additional to the right ankle. The period during which the other complaints were undocumented was identified by the Member as running from 18 November 2020 to 27 January 2021, when the worker consulted Dr Sarian (see the reasons at [262] to [263]). This submission was raised, in varying ways, in the multiple grounds of appeal discussed above. Ultimately, the Member accepted the worker’s explanation for not voicing such complaints before he saw Dr Sarian (see the Member’s reasons at [263] to [265]). The Member did so in circumstances where he heard the worker, Mr Sader and Mr Baccouni give evidence. The Member specifically accepted the worker’s reasons for not having reported “the full extent of his injuries to Royal Prince Alfred Hospital or Dr Swid” (see the Member’s reasons at [255]).
It is clear there was friction between Dr Allen and the worker. The worker’s statement dated 12 March 2024[162] indicates the doctor prevented the worker’s mother from accompanying him into the examination. The worker states the doctor had apparently read the medical file prior to the appointment and at the outset said, “We are here to discuss your ankle injury.” The doctor accused the worker of attempting to record the assessment, which the worker denied. The doctor said the worker “cooperated poorly” with the physical assessment, which the worker denied in his statement. The doctor said the worker refused to let him review the x-rays, which the worker denied.
[162] AALD 12/3/24, pp 1–5.
There is little to be gained from attempting to weigh up the merits of each party’s submissions dealing with Dr Allen’s assessment, which would inherently involve speculation. The Member, in my view correctly, said it was clear to him that there was a significant disagreement between the worker and the doctor during the consultation, which affected the doctor’s ability to provide a complete and reliable report. This was plainly accurate. The appellant submits the Member simply accepted the worker’s evidence regarding the attendance on Dr Allen, when Dr Allen’s evidence should have affected the worker’s credibility. The Member, in my view rightly, did not make credit findings adverse to either Dr Allen or the worker. The Member observed there were mechanisms, such as s 119 of the 1998 Act, which were not used, and which could have been used to require the worker to attend a further consultation, with Dr Allen or another doctor. This specific finding is not challenged on appeal.
It is necessary that I apply the principles discussed in the passages quoted at [83] to [87] above. The Member was in a “position of advantage” over mine in making the factual findings which he did, based on seeing the worker, Mr Sader and Mr Baccouni give evidence. I am not persuaded that the Member’s findings were “glaringly improbable” or “contrary to compelling inferences”.
Ground No. 4 fails.

CONCLUSION

The various grounds of appeal have failed.

DECISION

The appeal is dismissed.
The Certificate of Determination dated 14 February 2025 is confirmed.

Michael Snell
DEPUTY PRESIDENT

24 September 2025