Rockdale Prestige Smash Repairs Pty Ltd t/as Ralph's Smash Repairs v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Rockdale Prestige Smash Repairs Pty Ltd t/as Ralph's Smash Repairs v Workers Compensation Nominal Insurer (iCare) & Ors [2022] NSWPIC 348
APPLICANT:	Rockdale Prestige Smash Repairs Pty Ltd t/as Ralph's Smash Repairs
FIRST RESPONDENT:	Workers Compensation Nominal Insurer
SECOND RESPONDENT:	Antonio Magliano
THIRD RESPONDENT:	Employers Mutual Limited (EML)
MEMBER:	Rachel Homan
DATE OF DECISION:	30 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Miscellaneous application seeking determination of the applicant’s liability to reimburse the Nominal Insurer the amount specified in a notice pursuant to section 145(1) of the Workers Compensation Act 1987; whether worker sustained a personal injury to his lumbar spine in a fall as alleged; contemporaneous record of lumbar symptoms but references to chronic back pain rather than traumatic injury; delay in a fall being identified as the cause of symptoms; degenerative pathology shown on radiological investigation; conflicting witness evidence; Held – applicant discharged evidentiary onus of disproving that the personal injury in respect of which compensation paid occurred; not appropriate to determine alternative causes of worker’s incapacity or need for treatment, including whether there was a disease injury to the lumbar spine; applicant not liable to reimburse the Nominal Insurer.
DETERMINATIONS MADE:	1. The Commission is satisfied on the balance of probabilities that the second respondent did not sustain a personal injury to his lumbar spine on 12 February 2019 pursuant to s 4 of the Workers Compensation Act 1987. 2. The applicant is not liable to reimburse the Insurance Fund the amount specified in the notice pursuant to s 145(1) of the Workers Compensation Act 1987 dated 8 September 2021.

STATEMENT OF REASONS

BACKGROUND

On 8 September 2021 a notice pursuant to s 145(1) of the Workers Compensation Act 1987 (the 1987 Act) was served upon Rockdale Prestige Smash Repairs Pty Ltd t/as Ralph's Smash Repairs (the applicant) on behalf of the Worker Compensation Nominal Insurer (the first respondent).
The notice sought reimbursement of the amount of $173,257.71 being the amount specified in a certificate pursuant to s 145(5) of the 1987 Act of compensation paid to or in respect of an injured worker, Antonio Magliano (the second respondent), for an injury on 12 February 2019.
A Miscellaneous Application (the application) was lodged in the Personal Injury Commission (the Commission) on 24 September 2021 seeking a determination of the applicant’s liability under s 145(3) of the 1987 Act. Specifically, the applicant sought determinations or orders that the injury did not occur as alleged or that compensation was not payable to the second respondent.
The applicant conceded that the second respondent was a worker employed by the applicant. The applicant also conceded that as on 12 February 2019, it did not hold policy of insurance for the full amount of any liability for an injury to the second respondent on that date.

PROCEDURE BEFORE THE COMMISSION

The matter proceeded to an initial teleconference on 25 October 2021. On that occasion, directions were made joining the second respondent to the proceedings, establishing a timetable for the service of documents on the second respondent and dealing with notices for production.
A second teleconference was held on 29 November 2021 on which occasion, directions were made admitting late documents into evidence and fixing the matter for conciliation conference and arbitration hearing on 1 February 2022.
At the conciliation conference and arbitration hearing on 1 February 2022, the applicant raised for the first time a contention that any incapacity or need for treatment resulted from a disease injury pursuant to s 4(b) of the 1987 Act, in respect of which ss 15 or 16 of the 1987 Act deemed the injury to have happened at a later date when the applicant held a policy of insurance.
Directions were made for the service and lodgement of submissions and evidence in support of the applicant’s contention and providing for the applicant’s insurer, Employers Mutual Limited (the third respondent), to be joined to the proceedings as an interested party.
The proceedings were adjourned for further conciliation and arbitration on 5 April 2022.
On 5 April 2022, directions were made joining the third respondent to the proceedings and dealing with the admission of late documents. Oral submissions were heard from the applicant, however, due to the need to deal with a number of interlocutory matters, insufficient time remained for the respondents to make submissions. Directions were made for a transcript to be provided to parties and a timetable for written submissions established. The parties were informed of my intention to determine the disputes at the conclusion of that timetable.
The applicant was represented in the proceedings by Mr Ross Stanton of counsel, instructed by Mr Greg Guest. The first respondent was represented by Ms Sarah Warren of counsel, instructed by Ms Joanna Turnbull. The second respondent was represented by Mr Ty Hickey of counsel, instructed by Mr Ali Elmiski. The third respondent was represented by Ms Lyn Goodman of counsel, also instructed by Ms Joanna Turnbull.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) the applicant’s liability in respect of the notice to reimburse issued pursuant to s 145(1) of the 1987 Act on 8 September 2021, including:
(i)the Commission’s jurisdiction to make findings and determinations in respect of whether any incapacity and/or need for treatment suffered by the second respondent resulted from an injury due to the nature and conditions of employment pursuant to s 4(b) of 1987 Act and what those findings / determinations should be;
(ii)whether the second respondent sustained an injury pursuant to ss 4(a) and 9A of the 1987 Act on 12 February 2019;
(iii)the extent and quantification of any entitlement to weekly compensation pursuant to s 33 of the 1987 Act in respect of the alleged injury on 12 February 2019 (including the calculation of pre-injury average weekly earnings);
(iv)whether there was an entitlement to medical and related treatment expenses pursuant to s 60 of the 1987 Act in respect of the alleged injury on 12 February 2019, and
(v)whether the second respondent was barred from recovering compensation pursuant to ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in respect of the alleged injury on 12 February 2019.

EVIDENCE
Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Miscellaneous Application and attached documents;
(b)    Reply lodged by the first respondent and attached documents;
(c)    Reply lodged by the second respondent and attached documents;
(d)    documents attached to an Application to Admit Late Documents lodged by the applicant on 4 November 2021;
(e)    documents attached to an Application to Admit Late Documents lodged by the second respondent on 29 November 2021;
(f)    documents attached to an Application to Admit Late Documents lodged by the applicant on 30 November 2021, other than: paragraph 6; the second sentence of paragraph 8; paragraph 52; and the second sentence of paragraph 53, of the statement of Mr Konstatinos Terkalas, dated 16 November 2021, commencing at page 44;
(g)    documents attached to an Application to Admit Late Documents lodged by the second respondent on 17 December 2021;
(h)    written submissions lodged by the applicant on 14 February 2022;
(i)    documents attached to an Application to Admit Late Documents lodged by the second respondent on 5 April 2022;
(j)    written submissions lodged by the first respondent on 26 April 2022;
(k)    written submissions lodged by the third respondent on 26 April 2022;
(l)    written submissions lodged by the second respondent on 27 April 2022;
(m)     written submissions in reply lodged by the applicant on 2 May 2022, and
(n)    written submissions in reply lodged by the third respondent on 9 May 2022.
No applications to adduce oral evidence or cross-examine any witness were made.

Workers Injury Claim Form

A claim form was completed by the second respondent on 28 February 2020 in which he described an injury occurring on 12 February 2019 at approximately 2.:30pm. The second respondent indicated that he first noticed the injury on 18 February 2019.
The second respondent indicated that he had worked for the applicant as a panel beater / spray painter since January or February 2018.
On 12 February 2019, the second respondent was in a spray booth at the work site when he sustained an injury to his back and both legs described as follows:
“Working on a large van. There was no proper structures/scaffold to access the top of large vehicles. We utilised milk crates stacked 2 high with wooden planks on top. Whilst working on the roof of the vehicle, standing on the planks, the planks began to wobble, causing me to fall on the concrete floor landing on my back.”

First respondent’s factual investigation

A factual investigation report was prepared for the first respondent by MJM Corporate Risk Services on 30 April 2020. According to the report, the second respondent declined to provide a statement but did respond to a questionnaire through his solicitor.
In response to the questionnaire, the second respondent gave answers that were consistent with the claim form. The second respondent said the cause of the incident was wooden planks giving way underneath him. The second respondent said the milk crates and planks on which he was standing was set up by “Andrew and Antonio as per Con’s instructions”.
The second respondent said his employer was aware of the tasks he was performing and the injury was reported to “Con” on the day of the incident. The second respondent said the injury was witnessed by Andrew Tiliakos.
Written statements were prepared by Konstantinos (Con) Terkalas and Andrew Tiliakos.

Mr Terkalas

The statement by Mr Terkalas was prepared on 30 March 2020. Mr Terkalas confirmed he was known as “Con” in the workplace and said he was the sole owner of the applicant business. The business had one full-time employee. The second respondent started employment on 12 February 2018. No formal work agreement was prepared. The arrangement was verbally agreed.
The second respondent was a full-time spray painter whose main duties were rubbing down cars, masking them up and spray-painting.
Mr Terkalas said the second respondent told him from the start of his employment that he had sciatic pain in his legs and had seen a physiotherapist in the past. The second respondent saw a physiotherapist from time to time during the period of his employment. At times, the second respondent would ask Mr Terkalas to stretch his legs and back out on the floor. The condition never appeared to bother the second respondent in his work tasks. The second respondent was a good employee.
Mr Terkalas said he first learned of the alleged injury on 2 March 2020:
“He first reported a back injury to me on 2 March 2020. I later found out (from icare) that the injury allegedly occurred on 12 February 2019. He told me at the time he'd had a back injury at work some time the previous year. I told him, ‘What can I do?’ He hadn't reported anything up to that time to me, or Jennifer in the office. All he told me was he'd hurt his back, he might need an operation, and that he'd hurt it at the workshop. I got upset and frustrated at that. I didn't understand what was going on and why he hadn't told me about it. He told me I could sort it out with my insurance. He got upset too and told me if I wasn't going to do anything about it that he'd take his stuff and go. I told him that he should do what he thinks is best for him. He then went and picked up his (perhaps) 20-kilo toolbox, carried it across the road to his car, and took off. He quit.”
Mr Terkalas said the second respondent never explained the circumstances of the alleged injury and he never witnessed any accident. The only other worker at the time was Andrew Tiliakos.
With regard to the description of injury, Mr Terkalas commented:
“All I can say is that I have milk crates and a plank in the workshop and they have been used before to stand on while doing work on a vehicle. That's pretty common practice for spray painters. I also have ladders available that can be used as an alternate.”
Mr Terkalas said that during early 2019, the second respondent’s wife visited Australia and spent time socialising with Mr Terkalas’ partner. In the evening of 12 February 2019, Mr Terkalas and his partner dined with the second respondent and his wife at a Thai restaurant in Brighton le Sands.
The second respondent took leave between 22 December 2019 and 10 January 2020 to visit his wife in Thailand. The second respondent told Mr Terkalas that whilst there he was renovating and painting his wife’s house.

Mr Tiliakos

In a statement, dated 8 April 2020, Mr Tiliakos said that he had worked full-time for the applicant for the past two years.
Mr Tiliakos said he never saw the second respondent have an accident of any type in the workplace at any time. Mr Tiliakos said the alleged injury on 12 February 2019 had been described to him. Mr Tiliakos did not recall seeing or hearing of anything like that at the time or recall the second respondent telling him anything about it.
Mr Tiliakos said he did not know whether the second respondent had any problems with his back before that date. The second respondent appeared to be okay and was able to do his work tasks with no problem.
Mr Tiliakos prepared a further statement on 28 April 2020. Mr Tiliakos said he did not recall helping the second respondent set up any milk crates or plank on 12 February 2019 for work. The second respondent did from time to time set up crates and a plank to do his work tasks.

Relevant treating medical evidence

On 14 February 2019, the second respondent’s general practitioner, Dr Nguyen Van Vinh recorded a clinical note as follows:
“LBP& RIGHT SCIATICA Nurofen: some help”
The second respondent was prescribed Lyrica and Panadeine Forte and referred for an
X-ray of the lumbar spine.
The report of an X-ray of the lumbar spine performed on 16 February 2019 was reported to show mild facet joint arthropathy at L4/5 and L5/S1. No other significant findings were recorded. No clinical information was recorded in the report.
On the same day, Dr Vinh recorded that the X-ray of the lumbar spine looked okay. The second respondent was referred for physiotherapy.
A “Chronic Disease Management, GP Management Plan” completed by Dr Vinh on 18 February 2019 described, amongst other things, “chronic lower back pain”. Patient actions and required treatments included:
“Avoid activities that precipitate the pain. To practice correct lifting techniques. Analgesia as advised. To see the physio as arranged.”
A report, dated 13 April 2019 from Felicia Rossi, physiotherapist, recorded that the applicant had been diagnosed with sciatica and on assessment showed:
“Pain on palpation of L2-4
Positive neurological Ax L2,3,4
Tightness in lumbar mm structures
Reduced lumbar range of motion”
The applicant’s planned treatment included soft tissue release; manual therapy; lumbar traction; a home exercise program, and advice regarding avoiding prolonged postures.
On 2 September 2019, Dr Vinh recorded that the second respondent had undergone chiropractic treatment.
On 12 December 2019, Dr Vinh recorded:
“Lower back pain, for many months, work: heavy lifting also sometimes painting on a high level and has to jump down due to not convenience with the ladder
Examination: tender over the L5/S1 area. for CT SCAN OF THE LUMBAR SPINE”
The report of a CT scan of the lumbosacral spine performed on 14 December 2019 described:
“There is spinal canal stenosis at the L4-5 level compressing the proximal L5 nerve roots. Perineural steroid injection could assist with symptomatic relief. There is a right sided L4 pars defect but no signs to suggest spondylolisthesis. There is minor disc bulge at the L5-S1 level without evidence of nerve root compression.”
On 16 December 2019, Dr Vinh recorded:
“Pt had a fall 7 months ago at work, and the pain continue since
CT SCAN: LUMBAR SPINE:
1-   Spinal canal stenosis at L4/5, compression the proximal L5 nerve roots
2-   Right sided L4 pars defect but no ss of spondylolisthesis
3-   Minor disc bulge at L5/S1.”
On 17 December 2019, the second respondent requested an MRI. A referral to neurosurgeon Dr Ali Ghareman was prepared on 18 December 2019. The letter of referral gave a history as follows:
“Thank you for seeing Antonio who presented with 6 months history of lower back pain and radiate to the upper parts of the buttock bilaterally. He has been working as a panel beater & spray painter where he had to do heavy lifting. He reported that the pain first occured after he jump of a ladder at work.”
A report prepared by Dr Ghareman on 21 December 2019 took a history as follows:
“He works as a right handed panel beater. He had a fall at work in mid 2019. He has children and grand children and lives with his wife, 42 years old. He has had industrial hearing loss. He had a fall and developed pain in the lower back and the pain radiates to the buttocks from the back. The pain is severer on both sides. Pain at present is more severe when getting out of bed. Sharp severe pain. He has tried Panadeine Forte for pain but did not tolerate this so he has started taking Neurofen.”
With regard to the cause of the second respondent’s symptoms, Dr Ghareman gave the opinion:
“In either case the pain has been generated as a result of work related activities and since fall at work. As such work is a significant contributor to pain. Please note that he had no pain prior to his work-related fall.”
An MRI of the lumbar spine performed on 14 January 2020 was recorded to show:
“Central spinal canal stenoses at L2-3, L3-4, L4-5. Of these more significant at L3-4 including bilateral recess narrowing. Spondylotic changes also lead to foramen and far lateral narrowing at the levels mentioned above; facet joint OA.”
The clinical details were noted to be “Assess extent of work-related injury”.
On 29 January 2020, Dr Vinh was seen in relation to “LBP ,SEVERE, CHRONIC”.
On 28 February 2020, Dr Vinh recorded:
“STILL C/O back pain, now seeking compo. work for the same emplyer for >2 years back pain since february 2019”
A SIRA Certificate of Capacity was prepared by Dr Vinh, dated 2 March 2020, which described a “back injury for investigation”. The injury was said to be related to work due to “heavy lifting at work, had a fall at work”. The stated date of injury was 12 February 2019.

Dr Bentivoglio

The first and second respondents rely on a medico-legal report prepared by neurosurgeon and spine surgeon, Dr Peter Bentivoglio dated 30 June 2021. Dr Bentivoglio took a history of injury as follows:
“…he described a work injury on 12 February 2019 when he had a fall from a wooden plank and milk crates, landing on his bottom on a concrete floor whilst he was at work. This produced lower back pain. He had no prior lower back issues before this.”
Dr Bentivoglio recorded the second respondent’s current symptoms, reviewed the radiological investigations and performed an examination before giving an opinion as follows:
“My working diagnosis in Mr Magliano is a male with lower back pain secondary to multilevel disc disease, especially at L3/4 and L4/5 with a moderate canal stenosis at L3/4 and bilateral lateral recess narrowing at L4/5.”

Dr Bentivoglio was asked to comment on the surgery proposed to the second respondent’s lumbar spine by Dr Ghareman and responded:
“It is probably reasonable to undertake this procedure, which is associated with the work injury of 12 February 2019 and with exacerbation of the previous degenerative disease.”

Second respondent’s evidence

The second respondent prepared a written statement on 5 November 2021.
The second respondent gave an account of his work history, which consisted predominantly of working as a panel beater and spray painter. The second respondent commenced employment with the applicant as a panel beater/spray painter in about February 2018.
Prior to the work injury on 12 February 2019, the second respondent was reasonably well. The second respondent disclosed that he was previously diagnosed with industrial deafness and was referred to a law firm in 2018 to obtain hearing aids.
The second respondent said that on 12 February “2021”[sic] at approximately 2.30pm he was working with Mr Tiliakos on a white van. The second respondent was applying solvent to the passenger side and Mr Tiliakos was applying it to the driver side. Mr Terkalas had instructed them to use a timber plank on two milk crates to stand on to apply the solvent. The second respondent placed the timber on the milk crates and as he stood on the timber, the plank began to wobble beneath him. The milk crates slid from underneath, causing the second respondent to fall on his back, landing heavily onto the ground. The second respondent felt immediate pain in his lower back. Mr Tiliakos assisted the second respondent to stand up.
The second respondent said he did not tell Mr Terkalas about the incident as he was not in the garage at the time. The second respondent continued to work on the car at a slower pace. Some time later, Mr Terkalas returned to the garage and the second respondent went with Mr Tiliakos to notify him of the injury. Mr Terkalas’s response was to the effect of “You’ll be fine”.
The second respondent continued to work and returned to work the next day, but his back pain worsened. The second respondent did not undertake any strenuous activity and was effectively supervising other workers and handing them tools to complete their work. Mr Tiliakos undertook most of the repetitive work.
The next day, the second respondent told Mr Terkalas that he needed to go and see his general practitioner for treatment of the back injury. The second respondent saw Dr Vinh and told him that he was injured at work. The second respondent was prescribed medication and referred for physiotherapy.
The second respondent told Mr Terkalas about his need for treatment and that he needed to lodge a claim with the workers compensation insurer. The second respondent said that he had a conversation with Mr Terkalas in which he disclosed that he was not insured and that the second respondent was overreacting.
Over the next several months, the second respondent continued to seek medical treatment at his own expense. The second respondent’s back pain worsened and he was struggling at work. In about December 2019, the second respondent attended Dr Vinh and said he was having difficulty walking with the pain in his back. The second respondent was referred for a CT scan and to neurosurgeon, Dr Ghareman. Dr Ghareman advised the second respondent that he would probably require surgery.
The second respondent said he advised Mr Terkalas of the need for surgery and that he could not afford to pay for it. Mr Terkalas was very dismissive.
In about February 2020, a former colleague told the second respondent that he may still be able to lodge a claim for compensation and referred the second respondent to his current solicitor. The second respondent completed his work injury claim form and lodged it with iCare. The claim was subsequently accepted and the second respondent’s treatment expenses were paid.
On 28 August 2020, the second respondent underwent radiofrequency treatment to his lower back. The second respondent received no relief and ultimately underwent surgery on 29 July 2021.
Following the surgery, the second respondent continued to have lower back pain but the pain in his legs was no longer prevalent. The second respondent continued with physiotherapy and he had been advised that his prognosis was good.
After speaking with his solicitor, the second respondent told Dr Vinh that he had made a claim for workers compensation. Dr Vinh provided the second respondent with a certificate of capacity, which he later provided to Mr Terkalas. The second respondent said:
“When I returned to work, I provided Con with a copy of the Certificate of Capacity and told him what the doctor said. He then said to me words to the effect of ‘If you cant do the work that I set for you, then you cant work at all, then there's no point with you being here. You can go. I'll deny that anything every happened.’ I told Con that I wanted to work but that I had to follow the doctor's advice so that my back pain doesn't worsen. He then yelled at me and said ‘take your things and go, I don't want you anymore.’ I then wheeled my toolbox out of the workshop. Andrew then helped put the tools in my car. I then left.”
The second respondent responded to Mr Terkalas and Mr Tiliakos’ statements and denied most of their allegations. The second respondent suggested that Mr Terkalas pressured Mr Tiliakos into making false claims. Mr Tiliakos was scared of Mr Terkalas. The second respondent said the true version of events was set out in a statement dated 2 March 2020 by Mr Tiliakos.
Attached to the second respondent’s statement was a screenshot from his phone showing a photograph taken on 5 February 2019 at Brighton le Sands depicting him, his wife, Mr Terkalas and his partner at a restaurant.
A photograph of two timber planks resting on milk crates next to a vehicle was also attached.

Mr Tiliakos

A statement prepared by Andrew Tiliakos and signed 2 March 2020 stated:
“On 12 February 2019, I was working with Antonio on a white van.
I was applying a general solvent on the driver's side of the van to prepare it for spray painting.
Antonio was also applying the solvent, but from the passenger's side.
In order to apply the solvent, we were given two milk crates on which we were told to place timber to form a platform. We then had to stand on the timber to reach the van's ceiling and other areas which we could not reach whilst standing on the ground.
As I was applying the solvent, I saw from one side that Antonio fell off the timber and back on to his back.
When I asked Antonio what had happened, he said he slipped back off the timber and onto his back. He was in a lot of pain.”
Mr Tiliakos said he went with the second respondent to tell Mr Terkalas that he had been injured whilst falling off the timber platform. The second respondent had continued to complain about pain in his lower back and had been restricted in performing his duties at work.

Dr Kuru

The applicant relies on a medico-legal report prepared by spinal surgeon, Dr Rob Kuru, dated 6 November 2021.
Dr Kuru indicated that his report was prepared in response to a letter of instruction from the applicant’s solicitors and following a review of the documentation provided to him.
Dr Kuru gave the opinion:
“Hence from the information available to me, Mr Magliano's diagnosis is that of non specific back pain (presumably due to underlying degenerative disease in the lumbar spine) and spinal claudication consequent to degenerative spinal stenosis.”
Dr Kuru was asked whether the pathology identified in the second respondent’s spine was more likely to be constitutional rather than related to any specific injury. Dr Kuru responded:
“The findings reported on the CT and MRI scans are degenerative and indicative of a progressive constitutional condition. There is no question that such findings on imaging are not the consequence of acute or specific injury. There is no evidence to suggest that injury or workplace exposure is associated with the development of such pathology.”
Dr Kuru was asked whether it was more likely than not that the pathology was unrelated to an injury in February 2019, noting that the second respondent was able to continue in his normal duties until February 2020:
“There is no basis for any opinion which supports the notion that the pathology seen on imaging is a consequence of injury in February 2019 or indeed at any other time.
The general opinion in such cases is that a specific incident may aggravate pre-existing underlying degenerative disease. If this was the case, I would have expected that the worker would not have been able to continue with his normal duties subsequent to the incident. The fact that he was able to continue on for a further twelve months indicates that development of symptoms is consequent to the underlying pathology itself rather than attributable to a specific injury at work. It is more probable than not that if the worker has sustained a significant injury to his lumbar spine in February 2019, that he would have had to cease work well prior to February 2020.”

Applicant’s factual investigation

A factual investigation report was procured from Worksite Investigations by the applicant’s solicitors on 25 November 2021.
Attached to the applicant’s factual investigation report were further statements from Mr Terkalas and Mr Tiliakos.

Mr Terkalas

In his statement, dated 16 November 2021, Mr Terkalas confirmed that he had previously provided a statement on 30 March 2020. Mr Terkalas said he had been shown and read a statement made by the second respondent on 5 November 2021.
Mr Terkalas confirmed that the second respondent disclosed pre-existing conditions of hearing loss and sciatica in his legs at the commencement of employment. Mr Terkalas said:
“Tony would sometimes complain about back pain. I suggested he obtain physiotherapy treatment, but Tony said it would cost money. I arranged for Arthur Kazas a physiotherapist and sports scientist to treat Tony's back for 4 treatments at no cost to Tony because I wanted to help Tony. The treatment consisted of stretching his back. From memory this occurred before February 2019. I understand that Tony stopped seeing Arthur after the 4th treatment as Tony did not want to pay.”
The second respondent submitted a claim for hearing loss in about November 2018. Mr Terkalas asked the second respondent to withdraw the claim as it was unfair. Mr Terkalas also told the second respondent that he did not have workers compensation insurance as it had lapsed as his wife, who had passed away used to renew the insurances. Mr Terkalas maintained other insurances for public liability and property.
Mr Terkalas corrected his previous statement saying that the second respondent went on holiday to Thailand in December 2017 and returned in early January 2018.
Mr Terkalas denied going to dinner with the second respondent and his partner on 5 February 2019 and confirmed that it was on 12 February 2019. On 17 February 2019, the four of them went to Bondi Beach and walked along the beach. The second respondent did not mention any injury or appear to be in any pain or discomfort.
Mr Terkalas denied that he would have instructed Mr Tiliakos, who was a labourer, to spray paint a car at same time as the second respondent. Mr Tiliakos’ job was to prepare the cars to be painted.
Mr Terkalas commented on the photo of two planks between 2.5 to 3m long on milk crates. Mr Terkalas denied ever observing the second respondent using this setup. Mr Terkalas did observe the second respondent using a step ladder or placing a plank about 1m in length on milk crates. These would be about a metre away from the car, not right beside the car as shown in the second respondent’s photograph.
Mr Terkalas denied being notified by the second respondent, Mr Tiliakos or his secretary at the time of any incident as described in the second respondent’s statement. Mr Terkalas was not notified of any injury until 2 March 2020.
Mr Terkalas said there was no change to the second respondent’s duties or the manner in which he performed them.
On 2 March 2020, the second respondent came into the workshop and said he had hurt his back working in the workshop and might need an operation. He did not describe how he had hurt his back. No one else in the workshop said they had witnessed an incident involving planks on a milk crate. Mr Tiliakos said he did not see the second respondent falling off any milk crate and said he was working on a different car.
Mr Terkalas denied pressuring Mr Tiliakos into making any statements. Mr Tiliakos complained to Mr Terkalas that the second respondent was constantly ringing him about the claim and he felt relieved when he stopped working for the applicant.

Mr Tiliakos

In a statement, dated 16 November 2021, Mr Tiliakos stated that he did not observe and was not aware of an incident occurring on or around 12 February 2018 [sic], or at any time in which the second respondent fell or injured himself at work.
Mr Tiliakos stated:
“On 2nd March 2020, at the end of the day at 4pm, Tony and I were leaving the workshop. I was tired. Tony said to me ‘Andrew, I need your help.’ Tony said something about falling and injuring himself. Tony said he wanted me to do a statement that I had witnessed it.
I told Tony that I didn't see anything and did not want to get involved in the matter. However, Tony kept on speaking to me saying he needed help and had a sore back. Tony pressured me into making a statement.
Tony drove me to an office on the Princes Highway Rockdale near a fitness place to a solicitor's office. There the male lawyer asked me some questions which Tony mainly answered for me and drafted a statement.
I was uncomfortable with the situation. However, I signed the statement so that the matter could be over.
At the request of an investigator for iCare called Andrew Cornell, I subsequently signed statements dated 8 April 2020 and 28 April 2020 in relation the same matter in which I was able to clearly state that I had not witnessed the incident which Tony described and did not observe him to injure himself.
I have not witnessed Tony Magliano being injured in any circumstances.”

Questionnaire

In response to a schedule of questions attached to a notice pursuant to s 141(2) of the 1987 Act, dated 6 March 2020, Mr Terkalas indicated that he had no knowledge of the alleged injury and denied that the injury was reported, or that there were any witnesses. Mr Terkalas commented generally:
“Tony did not report his injury to me, he told me on the day he left the company on the 2-3-20, he told me that he is putting a compo claim, I asked him when did this happen. He told me last year; then he got his tools and walked out.”

Dr Darwish

The second respondent relies upon a medico-legal report prepared by neurosurgeon and spinal surgeon, Dr Balsam Darwish, dated 8 March 2022.
Dr Darwish took a history of the second respondent sustaining injury on 12 February 2019 while applying a general solvent to a van. The second respondent fell from a timber plank which was supported by two milk crates and landed on his back. Since the injury, the second respondent had developed lower back pain. The second respondent continued to work but at a slower pace.
Dr Darwish recorded a history of the subsequent treatment of the second respondent’s lumbar spine that was consistent with the treating evidence.
Dr Darwish diagnosed lumbar canal stenosis for which the second respondent underwent L3/L4 and L4/L5 laminectomy on 29 July 2021.
Asked for an opinion as to the causal nexus between the accident and the lumbar condition, Dr Darwish responded:
“The radiologically demonstrated changes in the lumbar spine are most likely degenerative in nature caused and aggravated by the nature of his employment. The accident on 12 February 2019 was a major aggravating factor to a pre-existing condition in the main cause of his symptoms.”
Asked whether the injury was a frank injury or an injury due to the nature and conditions of the second respondent’s employment, Dr Darwish responded:
“… The radiologically demonstrated changes in the lumbar spine are most likely degenerative nature caused and aggravated by the nature of his employment which requires lifting and bending his back and being in awkward positions. The injury on 12 February 2019 was the main aggravating factor in the course of his symptoms for which he underwent surgery.

Mr Elmiski

The second respondent relies on a statement prepared by his solicitor, Mr Ali Elmiski, dated 4 April 2022.
Mr Elmiski said he had read the statement of Mr Tiliakos, dated 16 November 2021.
Mr Elmiski confirmed that Mr Tiliakos attended his office to provide his account of what occurred on 12 February 2019.
Mr Elmiski said that Mr Tiliakos’ most recent statement was entirely inconsistent with the version of events provided on 2 March 2020. Mr Elmiski said Mr Tiliakos showed no signs of duress of discomfort during the conference with him. Mr Tiliakos was eager to discuss his views of the applicant’s conduct on 12 February 2019 and his general conduct towards his employees. Mr Tiliakos provided examples of how he had been underpaid or not paid on time.
Mr Elmiski said it was incorrect that the second respondent answered the questions asked of Mr Tiliakos. Mr Tiliakos provided the answers to all the questions.
Mr Elmiski said he could not reason why Mr Tiliakos had changed his version of events other than that he felt pressured by his employer to do so.

Submissions

The Commission has been assisted by a large volume of written submissions prepared by the parties in these proceedings, as well as the oral submissions made on behalf of the applicant on 5 April 2022. For convenience, those submissions are not summarised here but are addressed where relevant in the Findings and Reasons below.

FINDINGS AND REASONS

There is no dispute in the present proceedings that on 12 February 2019, the second respondent was employed by the applicant. It is also common ground that the applicant did not, at that date, hold a relevant policy of insurance.
Section 140 of the 1987 Act provided for a claim to be made against the first respondent in those circumstances:
“140 Persons eligible to make claims
(1) A claim under this Division may be made against the Nominal Insurer by any person who considers he or she has a claim against an employer for compensation under this Act or work injury damages in respect of an injury to a worker, if:
(a)the employer is uninsured, or
(b)the person claiming the compensation has been unable, after due search and inquiry, to identify the relevant employer.
(2) An employer is considered to be ‘uninsured’ if the employer:
(a)had not obtained, or was not maintaining in force, a policy of insurance for the full amount of the employer’s liability under this Act in respect of the injured worker at the relevant time, or
(b)having been a self-insurer at the relevant time, has ceased to undertake liability to pay compensation to the employer’s own workers (but only if the claim cannot be paid under section 216 from any money deposited with the Authority or under any arrangement relating to the refund of any such deposit).”

Section 145 of the 1987 Act provides:
“145   Employer or insurer to reimburse Insurance Fund
(1)    The Nominal Insurer may serve on a person who, in the opinion of the Nominal Insurer, was:
(a) in respect of an injured worker to or in respect of whom a payment has been made by the Nominal Insurer in respect of a claim under this Division, an employer at the relevant time, or
(b)  an insurer under this Act of such an employer,
a notice requiring that person, within a period specified in the notice, to reimburse the Insurance Fund an amount (not being an amount exceeding the amount of the payment made) specified in the notice.
(2)    The Nominal Insurer may, by instrument in writing, waive the liability of an employer under subsection (1) to reimburse the Insurance Fund an amount, if the Nominal Insurer, in respect of the amount, is satisfied that:
(a)  the amount is beyond the capacity of the employer to pay,
(b)  the employer could not reasonably have been expected to regard himself or herself as an employer at the relevant time,
(c) the employer, not being a corporation, is bankrupt and the liability under this section is not provable in the bankruptcy,
(d)  the employer, being a corporation, is being wound up and the liability under this section is not provable in the winding up,
(e) the employer, being a corporation, has been dissolved, or
(f) it would not be commercially feasible for the Nominal Insurer to attempt to recover the amount.
(3)    A person on whom a notice has been served under subsection (1) in respect of an injured worker may, within the period specified in the notice, apply to the Commission for a determination as to the person’s liability in respect of the payment concerned.
(4)    The Commission may hear any such application and may:
(a) make such determination in relation to the application, and
(b)  make such awards or orders as to the payment of compensation under this Act to or in respect of the injured worker concerned, as the Commission thinks fit.
(4A) The Commission is not authorised to make a determination that waives the liability of an employer under subsection (1) to reimburse the Insurance Fund or that limits or otherwise affects any function of the Nominal Insurer to decide whether or not any such liability should be waived.
(5)    In any proceedings under subsection (4), a certificate executed by the Nominal Insurer and certifying that:
(a)  the payments specified in the certificate were paid to or in respect of an injured worker named in the certificate, and
(b)  a person named in the certificate was, in the opinion of the Nominal Insurer, liable at the relevant time to pay to or in respect of the injured worker compensation under this Act or work injury damages, is (without proof of its execution by the Nominal Insurer) admissible in evidence in any proceedings and is evidence of the matters stated in the certificate.
(6)    The Nominal Insurer may recover an amount specified in a notice served under subsection (1) (being a notice in respect of which an application has not been made under subsection (3)) from the person to whom the notice was given as a debt in a court of competent jurisdiction.
(7)    An order by the Commission that the Nominal Insurer is to be reimbursed by a person named in the determination concerned may be enforced under section 362 of the 1998 Act.”

No submissions have been made with respect to the validity of the s 145(1) notice issued on 8 September 2021. Nor is there any dispute between the parties with respect to the applicant’s ability to bring the proceedings pursuant to s 145(3) of the 1987 Act.
The Commission’s powers in the proceedings are set out in s 145(4) of the 1987 Act. The parties disagree as to whether those powers extend to making determinations or orders in respect of whether the second respondent’s incapacity or need for medical treatment arose from some compensable injury other than an injury on 12 February 2019.
It is, however, in my view, unnecessary and inappropriate to make any determination as to the other possible cause or causes of the second respondent’s incapacity or need for treatment in determining whether the applicant is liable to make the payments of compensation specified in the s 145(1) notice.
The claim form in respect of which those payments were made by the first respondent specified an injury to the second respondent’s back and legs occurring at approximately 2.30pm on 12 February 2019 when the second respondent fell onto his back on a concrete floor from wooden planks suspended between milk crates stacked two high.
The first issue requiring determination is whether the second respondent in fact sustained the injury alleged and in respect of which compensation was paid.
The relevant onus of proof in the proceedings was discussed by Keating P in Kula Systems Pty Ltd v Workers Compensation Nominal Insurer[1] (Kula) at [188]-[194]:
“The Arbitrator’s findings with respect to the onus of proof were clearly stated. He correctly found that the Nominal Insurer carried the legal onus of proof under s 145 of the 1987 Act.
I reject the submission that the Arbitrator ‘in effect required the employer to prove for the purpose of s 140(1) of the 1987 Act that it was insured by requiring it to establish reasonable grounds of belief as to why it was an exempt employer’. The submission is misconceived. There was no dispute that the appellant was uninsured when the worker sustained his injuries.
Once the worker’s claim for compensation was satisfied under s 140 of the 1987 Act by the Nominal Insurer, the Nominal Insurer was entitled to seek reimbursement of the compensation paid pursuant to the Deed. This was achieved by issuing a notice under s 145 of the 1987 Act on the uninsured appellant.
It was then open to the uninsured appellant to bring these proceedings in the Commission seeking a determination of its liability under s 145(4) of the 1987 Act. That is the basis on which the matter proceeded.
I do not accept the appellant’s submission that the onus of proof was reversed by requiring it to discharge the evidentiary onus in circumstances where the Nominal Insurer had not discharged its legal onus, at least to a prima facie level.
A certificate issued under s 145(5) of the 1987 Act is evidence of the matters stated in it. However, it is not conclusive evidence and is open to an employer to prove that at the relevant time it was not liable to pay compensation to the injured worker. It follows that the certificate is prima facie evidence that the appellant was liable for payments made by the Nominal Insurer to the worker in the sum of $225,000, unless proven otherwise.”

Did the second respondent sustain an injury on 12 February 2019?
[1] [2018] NSWWCCPD 10; BC201802030.

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:

“4 Definition of ‘injury’
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and

(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

Section 9A of the 1987 Act provides that no compensation is payable for an injury other than a disease injury unless the employment concerned was a substantial contributing factor to the injury.
There is a clear factual dispute in the witness evidence in this case as to what, if anything, occurred on 12 February 2019. Mr Terkalas has given statement evidence denying any knowledge of an injury sustained by the second respondent on that date, or in the manner described by him.
Mr Terkalas’ evidence is to a large degree, supported by the witness evidence of Mr Tiliakos as set out in statements made by him on 8 April 2020, 28 April 2020 and 16 November 2021. Mr Tiliakos has, however, given contrary evidence in a written statement made on 2 March 2020. Although Mr Tiliakos has subsequently resiled from the evidence set out in his statement dated 2 March 2020, the second respondent’s solicitor who took the statement has provided evidence suggesting that the evidence set out in Mr Tiliakos’ first statement was voluntarily and freely given by him.
The second respondent and Mr Terkalas have cast aspersions on each other’s credibility. Allegations of document fraud have been made by each, particularly in relation to the issue of the quantum of the wages paid to the second respondent. Their evidence differs on a multitude of issues.
None of the witnesses has been cross-examined. Whilst it is not necessary for cross-examination to occur before a finding on credibility can be made, I have approached the witness evidence with great caution and to a large extent find it unreliable on both sides.
The contemporaneous medical evidence provides a more useful guide as to what may or may not have occurred.
The second respondent has in his statement and in the histories provided to his treating practitioners and the medico-legal experts, denied suffering back pain or sciatica prior to the alleged event on 12 February 2019. There are, in the clinical records of Dr Vinh, no notes of consultations prior to 12 February 2019 in which the applicant is recorded to have complained of lower back pain or sciatica. Although the applicant alleges that the second respondent received physiotherapy treatment for his back paid by him prior to 12 February 2019, no evidence from that provider has been lodged in the Commission.
The first record of lower back pain and sciatica appears in the record made on 14 February 2019. Dr Vinh’s notes on that occasion do not, however, provide any indication of the cause of the of the symptoms or their duration. Importantly, no indication is given that the symptoms were attributable to a traumatic fall from a height at work two days earlier.
The second respondent was, however, referred for X-ray investigations and prescribed analgesia.
The second respondent was seen again by Dr Vinh on 16 February 2019. Once again, no indication is given in the clinical records of that consultation of an injury at work due to a fall from a height. The second respondent was, however, referred for physiotherapy.
A Chronic Disease Management Plan prepared by Dr Vinh on 18 February 2019 does, however, give an indication of the cause and duration of the applicant’s back pain. In that document, Dr Vinh described “chronic” lower back pain and referred to the need to avoid activities that precipitated the pain and to practice correct lifting techniques.
The description of the second respondent’s back pain as “chronic” and the completion of a Chronic Disease Management Plan together with the references to activities precipitating pain and correct lifting technique are inconsistent with the second respondent having reported to Dr Vinh that he experienced a sudden onset of back symptoms on 12 February 2019 when he fell and landed on his back on concrete from planks of wood sitting atop milk crates stacked two high. This evidence suggests rather that the second respondent had, at that date, been experiencing back pain for a relatively lengthy period of time and that it may have been precipitated by certain activities and incorrect lifting techniques. The evidence is consistent with the applicant’s evidence that the second respondent had a prior history of back pain pre-dating his employment and for which treatment was obtained during the course of his employment.
The second respondent was referred by Dr Vinh to a physiotherapist who, on 13 April 2019 diagnosed sciatica and recorded a number of findings on examination. The second respondent’s treatment plan included massage and manual therapy, lumbar traction, home exercises and advice regarding prolonged postures. The physiotherapist report provides no indication that the second respondent reported a recent acute onset of symptoms following a traumatic fall. The recommended treatment plan is consistent with a chronic condition at the lumbar spine.
The second respondent was seen again by Dr Vinh on 2 September 2019, once again without any reference to a work injury as later claimed.
The first description of an injury related to work appears in a clinical record made on 12 December 2019. On that occasion, Dr Vinh did not, however, describe a fall on to the second respondent’s back or buttocks on 12 February 2019. Rather, he described heavy lifting at work and sometimes jumping down from a height due to not having the convenience of a ladder.
The first reference to a “fall” appears in a clinical record four days later in which the second respondent now reported a fall seven months earlier at work. As the applicant’s submissions noted, this record placed the fall in around May 2019, not February 2019.
The letter of referral to Dr Ghareman, dated 18 December 2019, referred to pain first commencing six months earlier after the second respondent jumped off a ladder at work. Dr Ghareman’s first report took a history of a fall at work in “mid-2019”.
This analysis of the treating medical evidence indicates that although the second respondent reported experiencing lumbar symptoms in February 2019 soon after the alleged injury, the symptoms were not initially associated in the medical evidence with any work injury. Although clinical records are always to be approached with caution, bearing in mind that they are not prepared for the purposes of subsequent litigation[2], it is highly unusual that those records did not describe the traumatic event subsequently relied on as causative of the onset of second respondent’s symptoms. I accept the second respondent’s submission that Dr Vinh’s records were typically brief and unilluminating. It is, however, significant that the most contemporaneous records suggest that the symptoms being experienced by the second respondent were chronic and longstanding and probably associated with poor postures, inappropriate lifting technique and certain activities such as heavy lifting or jumping.
[2] See, for example, Mason v Demasi [2009] NSWCA 227 at [2] and Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]-[36].
They symptoms were first associated work some eight months after the alleged event. Even then, the records did not suggest a fall landing on the second respondent's back but rather jumping down from a height or jumping off a ladder. The timing of that event was placed in mid-2019 rather than 12 February 2019.
The extensive delay in the second respondent’s lumbar symptoms being attributed to a work fall and the inconsistency with which the fall or event was initially described in the treating medical evidence are significant.
In Onassis v Vergottis[3], Lord Pearce commented upon what is often recollected and said by witnesses, after an event, as opposed to what is contemporaneously recorded in documents at the time of the event, in the following terms:
"Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on the balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."
[3] (1968) 2 Lloyds Report 403.
The lack of contemporaneous evidence of a work injury, as opposed to “chronic” symptoms is a matter which must be given due weight. In Department of Education and Training v Ireland President, Keating P found:
“… the Arbitrator wrongly directed himself that the matter could be decided based on the credit of Ms Ireland alone. The task before the Arbitrator was to weigh the evidence of Ms Ireland together with other objective evidence, or the absence of it. The Arbitrator erred in failing to give due weight to Ms Ireland’s failure to make any report of injury to her back on the day of the accident. The absence of any documentary evidence from Dr Epps or Dr Baker to support any complaints of back pain, either contemporaneous to the accident or at least at intervals during the period between the accident and when it was first reported to Dr Wallace, is a significant omission in Ms Ireland’s case.”
I have given weight to the evidence that the alleged fall on 12 February 2019 has subsequently been described in a consistent fashion in the second respondent’s claim form, statement evidence and the histories provided to the treating and medicolegal experts.
I have also given weight to the applicant’s confirmation that it was not unusual for spray painters to stand on a plank between milk crates to perform their work. The applicant has, however, denied ever seeing the particular set up depicted in a photograph attached to the second respondent’s statement.
The applicant’s contention that there was no injurious event on 12 February 2019 receives some support from the radiological investigations and medicolegal evidence. The radiological investigations are consistently described as revealing degenerative changes in the second respondent’s lumbar spine. Dr Bentivoglio described multilevel disc disease with a moderate canal stenosis. Dr Darwish agreed that the radiologically demonstrated changes in the lumbar spine were most likely degenerative in nature.
The applicant relies on a medico-legal opinion of Dr Kuru who disagreed that the second respondent’s symptoms were a consequence of an injury in February 2019 or at any other time. Dr Kuru said the findings were degenerative and indicative of a progressive constitutional condition. Dr Kuru found no evidence of an acute or specific injury. If there had been, Dr Kuru suggested that the second respondent would not have been able to continue on with his normal duties for a further 12 months. Dr Kuru said it was more probable than not that if the second respondent had sustained a significant injury to his lumbar spine in February 2019, he would have ceased to work well prior to February 2020.
Although Dr Bentivoglio and Dr Darwish have provided opinions that the fall described to them aggravated or exacerbated the degenerative disease in the second respondent’s lumbar spine, those experts have based their opinions on an assumption that the history provided to them by the second respondent of a fall on 12 February 2019 was accurate.
Although Dr Vinh in his later clinical notes, referrals and certificates of capacity also appears to have accepted that there was a work fall, there is no report or other evidence from Dr Vinh corroborating the second respondent’s claim that he first reported that his symptoms were due to a fall at work in February 2019. Dr Vinh has not explained the absence of reference to a work injury in his contemporaneous notes, the references to “chronic” back pain and heavy lifting, or the differing descriptions of the nature and timing of the injurious event.
The evidence before me confirms that the second respondent continued to work after February 2019. The second respondent’s statement evidence suggests, however, that he modified his duties to avoid undertaking any strenuous activity or anything that required lifting, squatting, bending, or standing and sitting for long periods of time. The second respondent claims he was predominantly performing the tasks of a supervisor and handing tools to other workers who were performing the more repetitive tasks.
This allegation is denied by the applicant who has given evidence that there were no changes to the second respondent’s duties and he continued to be responsible for spray-painting whilst Mr Tiliakos was primarily responsible for preparing vehicles to be spray-painted.
The applicant has commented upon the unusual specificity in the second respondent’s description of the events on 12 February 2019 in his statement dated 5 November 2021. By the time that statement was prepared, almost three years had passed since the injurious event. The second respondent’s account contained detail as to the colour and type of vehicle being worked on, where Mr Tiliakos was standing in relation to him, and the instructions provided to the second respondent and Mr Tiliakos by Mr Terkalas. The second respondent described in some detail the content of discussions alleged to have taken place around this time. Given the lack of contemporaneous records of the injurious event, I accept that the level of detail in the second respondent’s account is somewhat surprising.
The second respondent’s account is consistent with the statement recorded by Mr Tiliakos in March 2020, however, that evidence has since been resiled from and was also taken more than a year after the event.
After weighing all the evidence, I am satisfied that the applicant has discharged its evidentiary onus of disproving on the balance of probabilities, that there was a personal injury to the second respondent’s lumbar spine and legs on 12 February 2019, as claimed.
In making this finding, I accept that the second respondent reported and in fact experienced lumbar pain and radiculopathy from February 2019 onwards, ultimately leading to surgery. I am not satisfied, despite the submissions of the applicant and the alternative submissions of the second respondent that it is appropriate on the evidence before me to make any determination as to the cause of those symptoms or their relationship to employment with the applicant.
An injury due to the nature and conditions of employment with the applicant has not been claimed or disputed in accordance with the legislation. The third respondent, despite participating in these proceedings as an interested party, has not had the opportunity to investigate or fully respond to such a claim.
The determination I have made above is sufficient for me to determine that the applicant is not liable to reimburse the Insurance Fund the amount specified in the notice pursuant to s 145(1) issued on 8 September 2021.

It is unnecessary to consider the other matters in dispute.

[2022] NSWPIC 348

30 June 2022