Ronaldson v Express Wholesalers Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Ronaldson v Express Wholesalers Pty Ltd [2023] NSWPIC 230
APPLICANT:	Robert Ronaldson
RESPONDENT:	Express Wholesalers Pty Limited
Member:	Rachel Homan
DATE OF DECISION:	19 May 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66; accepted lumbar injury in January 2019; in April 2021 applicant injured his left forearm while using an angle grinder; whether condition at left forearm resulted from the lumbar injury; lack of contemporaneous evidence of back spasm causing the angle grinder injury; inconsistencies in the histories subsequently recorded as to how the incident occurred; lack of medical explanation of why any back spasm whilst using the angle grinder was causally related to the work injury two years earlier; Held – applicant failed to discharge evidentiary onus; consent order made for payment of lump sum compensation in respect of permanent impairment at the lumbar spine only.
determinations made:	The Commission determines: 1. The applicant has failed to discharge his onus of establishing that a consequential condition at the left upper extremity resulted from the injury to his lumbar spine on 14 January 2019. By consent, the Commission orders: 2. The respondent to pay the applicant lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 in the amount of $51,103.50 for 19% whole person impairment (WPI) of the lumbar spine as result of injury on 14 January 2019 (inclusive of 5% uplift).

STATEMENT OF REASONS

BACKGROUND

Mr Robert Ronaldson (the applicant) was employed by Express Wholesalers Pty Limited (the respondent) when he injured his lumbar spine in the course of employment on
14 January 2019.
Liability for the injury to the applicant’s lumbar spine was accepted by the respondent’s insurer and the applicant continues to be paid compensation in respect of that injury.
On 28 April 2021, the applicant sustained an injury requiring surgical repair to his left forearm while using an angle grinder at home. The applicant claims that the injury to his left forearm occurred as a result of a bout of back pain.
On 1 May 2022, the applicant’s solicitors forwarded to the insurer a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The claim relied upon an assessment made by Dr John Bentivoglio of permanent impairment at both the lumbar spine and left upper extremity resulting from the injury on 14 January 2019.
In a dispute notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 1 August 2022, the insurer disputed liability for the alleged consequential condition at the left forearm. An offer was made to resolve the claim for lump sum compensation based on an assessment of 19% whole person impairment (WPI) at the lumbar spine made by the respondent’s Independent Medical Examiner, Dr Neville Rowden.
The applicant commenced the present proceedings in the Personal Injury Commission (the Commission) by lodgement of an Application to Resolve a Dispute (ARD) on
27 February 2023. The applicant seeks lump sum compensation in respect of both the lumbar spine and left upper extremity in accordance with Dr Bentivoglio’s assessment.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the applicant sustained a consequential condition at his left upper extremity as a result of the injury to his lumbar spine on 14 January 2019.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 16 May 2023 in Sydney. The applicant was represented by Ms Jodie Magee of counsel, instructed by
Ms Bianca Santoro. The respondent was represented by Mr Graham Barter of counsel, instructed by Mr Jesse Webb.
During the conciliation conference the applicant accepted the respondent’s offer to resolve the claim in respect of the lumbar spine on the basis of Dr Rowden’s assessment of 19% WPI. The parties were unable to reach agreement in respect of the claimed consequential condition. It was agreed that should the liability dispute be resolved in the applicant’s favour, a Medical Assessor should be asked to assess the degree of permanent impairment at the left upper extremity only.
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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    documents attached to an Application to Admit Late Documents lodged by the applicant on 9 May 2023.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by him on 15 February 2023.
The applicant described the injury to his lumbar spine on 14 January 2019. The applicant was attempting to push a heavy trolley up a ramp when it got stuck on a lip at the top of the ramp. The applicant, in pushing the trolley over the lip, felt immediate pain in his lower back.
The injury to the applicant’s lumbar spine led to surgical intervention in the form of a laminectomy and fusion performed by Dr Saeed Kohan on 17 January 2019. Following the surgery, the applicant underwent physiotherapy on a weekly basis for approximately six months. The applicant said he still experienced lower back symptoms and was reliant on medication for his injury.
The applicant described an injury to his left upper extremity at home on 28 April 2021. The applicant said he was using an angle grinder while seated on a two-step stool. The applicant leaned forward to commence cutting a shelf when he experienced about of back pain. The pain caused the applicant to lurch forward into a wall, which in turn caused the angle grinder to kick back off the wall. As a result, the applicant sustained a laceration to his left wrist and fracture to the left radius.
The applicant was taken to St George Private Hospital for treatment. The applicant was then transferred to Sydney Hospital for surgery. The applicant underwent left forearm and wrist surgery at the hands of Dr Mark Nabarro on 28 April 2021. Despite intensive physiotherapy and regular consultations following the surgery, the applicant continued to have trouble with feelings and sensations in his left hand. The applicant underwent carpal tunnel surgery performed by Dr Nabarro on 24 November 2022. The applicant continued to experience numbness in his hand and fingers.
The applicant noted that the hospital records did not show that the applicant discussed how the injury on 28 April 2021 occurred. The applicant noted that the hospital records contained a number of incorrect statements, including that he injured his right wrist; that he was using a circular saw blade which flipped out; that he was standing; and that he was cutting a cupboard when he slipped suddenly.
The applicant said he injured his left wrist. A circular saw blade would not fit the angle grinder. The blade was described as a circular saw blade but it was in fact a blade designed to cut wood using an angle grinder. The applicant was seated at the time of injury and not actually cutting the cupboard when the injury occurred.
The applicant noted there were similar inaccuracies in the history taken by the respondent’s medicolegal expert, Dr Rowden. The applicant said he was sitting on a low stool, as opposed to kneeling. The kickback was not due to inexperience but due to a back spasm which made the applicant lurch forward.

Treating evidence

The clinical records of the applicant’s general practitioner, Dr Jonathan Moore, described the work injury to the applicant’s lumbar spine and the treatment that followed. Eight days after the surgery performed by Dr Kohan, on 25 June 2019, Dr Moore, recorded that the applicant was still getting some right-sided radicular pain, similar to the preoperative left-sided sciatica. Ongoing symptoms were noted throughout July 2019. The applicant’s pain was, however, noted to have improved markedly after resuming Lyrica.
On 28 August 2019, it was noted that the applicant’s pain was continuing to improve. The applicant was able to walk without pain and standing was not limited by pain. The applicant was undergoing physiotherapy twice per week. On 11 September 2019, the applicant was noted to be managing his pain with Palexia and walking 8 km per day.
In late October 2019, the applicant reported continuing lower back pain and some left leg radicular pain. The applicant resumed Lyrica and was referred for a left L4/5 facet joint injection. On 3 December 2019, Dr Moore recorded that the applicant had noticed some improvement in his pain since having the injection.
On 24 March 2020, the applicant reported some left lower back pain radiating down the left leg settling after a couple of days. The applicant was no longer taking Lyrica. On 24 April 2020, Dr Moore, recorded that the applicant’s back was still playing up intermittently and the applicant had taken Panadeine Forte a couple of times when the pain was more severe.
In a report to the insurer dated 19 June 2020, Dr Moore noted the applicant was,
“… continuing to improve since his lumbar laminectomy surgery and is no longer taking any analgesic medications for back pain and resuming his normal activities of daily living. He remains limited in his spinal strength for tasks such as bending and lifting. I remain of the opinion that Robert will benefit from ongoing weekly visits to the physiotherapist so that his progress can be monitored and his rehabilitation regimen can continue to be upgraded.”
In consultations in mid to late 2020, the applicant reported slight twinges in the left leg in the context of doing lots of sitting whilst studying. The applicant was also reporting cervical symptoms including neck pain, tingling in the right hand in glove like distribution and increased clumsiness, including, difficulty using a screwdriver over the weekend. The applicant underwent an MRI scan of the cervical spine and was referred back to Dr Kohan.
A report from Dr Kohan to Dr Moore, dated 29 October 2020, noted that the applicant had been noticing recurrent numbness and discomfort in the right upper limb for about 10 weeks associated with sitting in front of computer. Dr Kohan gave the opinion that the appearance on the MRI scan was chronic in nature and the applicant’s symptoms had been aggravated by prolonged sitting in front of a screen.
The applicant continued to see Dr Moore in late 2020 and early 2021 for WorkCover certificates. His condition was noted to be stable.
A Discharge Referral from the Emergency Department at St George Hospital, dated
28 April 2021 noted:
“brought in by son
left forearm injury with a grinder while cutting kitchen cabinet at home
had active bleeding which stopped with pressure
complains of numbness to left thumb and index finger
no other injuries
fasted since 1:00 p.m
PMH
lumbar spine fusion operation 2019
sleep apnoea, on CPAP
GORD”
Progress notes recorded:
“- pt was cutting kitchen bench with circular saw ( new blade) at 1445”
Records from St George Hospital noted that the applicant was transported to Sydney Hospital. An Ambulance Electronic Medical Record, dated 28 April 2021, recorded:
“INTERFACILITY TRANSFER. SGH TO SYDNEY HAND AND EYE. PT CUTTING CABINETRY WITH A GRINDER, BLADE HAS 'BOUNCED' FROM TIMBER AND CUT INTO PT R WRIST / FOREARM. DEEP JAGGED LACERATION IMPACTING INTO RADIAL BONE AND DEEP STRUCTURES. NO SPURTING BLEEDING, VENOUS BLEEDING CONTROLLED WITH PRESSURE - PER PT 1L LOST ON SCENE. SELF PRESENTED TO SGH. PROCEDURAL SEDATION COMMENCED, 140MCG PROPOFOL AND 50MCG FENT, 100MCG FENT GIVEN PRE PROCEDURE - TOTAL FENT 150MCG LAST DOSE 1626. PT REMAINED CALM, GCS15 EN ROUTE TO SYDNEY HAND HOSPITAL - NO FURTHER TREATMENT FROM A/O'S. VSS BTF.”
A Discharge Referral from Sydney Hospital and Sydney Eye Hospital dated 30 April 2021 recorded:
“28/4/2021 presented to St George Hospital ED post injury at home to left for arm with grinder while cutting kitchen cabinet at home”
Under the heading “Background”, several issues were noted, including “lumbar spine fusion operation 2019”.
Progress notes from Sydney Hospital recorded:
“using grinder today @ home with circular saw blade
flipped out and laceration through dorsum left wrist
…
Transfer from St George
circular saw blade injury around 3pm this afternoon at home
cutting cupboard and slipped, suddenly
blade through radial forearm distal 1/3 level”
Further:
“emotional support offered:
normalised feelings Robert is experiencing – stupidness and frustration that injury has occurred
feels he will require little emotional support as he has come to terms with injury”
The applicant first saw Dr Moore after the angle grinder incident on 3 May 2021 in a telehealth consultation. The consultation with Dr Moore on that occasion was recorded as follows:
“Telehealth consultation
Recorded by: Dr Jonathan Moore Visit date: 03/05/2021
Recorded on: 03/05/2021
had a major saw injury to the left forearm with an angle grinder that had a circular saw blade on it taken to st George hospital and then transferred to sydney hospital
surgery on 29 April Left forearm wound debridement, ORIF of DR #, repair of superficial branch of radial nerve, median nerve, radial artery, EDC to RF/MF/IF, ECRL, ECRB, APL, EPB, FCR + FPL
not given much analgesia was advised to take 2 endone 3-4 times per day . circ obs OK Subjective:
Objective:
Assessment:
Diagnosis: Post operative pain
Reason for visit: Post operative pain Injury left forearm
Plan:
Actions:
Prescription printed: Endone 5mg Tablet 1 Four times a day p.r.n”
At their next consultation on 12 May 2021, Dr Moore recorded that the applicant was getting shooting pains in the left palm, fingers and hands which was keeping him awake at night. The applicant was given a prescription for Lyrica and a new certificate of capacity.
In the certificate of capacity issued on 12 May 2021 and in the certificates issued thereafter, under the heading, “Factors affecting recovery”, Dr Moore recorded:
“Due to episode of pain and spasm in back on 29/4/2021 Mr Ronaldson sustained a significant injury to the left upper limb as he was using an angle grinder at the time of the pain and spasm.”
On 10 August 2021, Dr Moore prepared a report for the insurer in response to an email dated 21 July 2021, in which he stated:
“The diagnosis is entirely consisent with the mechanism of injury. Mr Ronaldson describes crouching down to cut some kitchen cupboards with angle grinder and whilst he was doing this he developed a sharp and severe spasm in his lower back which forced him to move suddenly and the angle grinder then cut his left forearm.”
A report from hand surgeon Dr Mark Nabarro, prepared at the request of the applicant’s solicitor dated 20 April 2023 stated:
“This is to confirm that Mr Robert Ronaldson sustained a significant injury to his left wrist while using an angle grinder with a cutting blade at home on 28 April 2021. He was sitting on a stool at the time while using the grinder and suffered a spasm in his back. This caused him to bend forward involuntarily and the blade ricocheted into the cupboard and then his left wrist.
He lacerated the radial artery and suffered significant blood loss at the time of the injury. When he attended the Emergency Department, he was still in a state of shock and this could explain why the history he gave was not complete.”

Dr Bentivoglio

The applicant relies on medicolegal reports prepared by orthopaedic surgeon, Dr John Bentivoglio, dated 24 November 2021, 22 April 2022 and 20 April 2023.
In his first report, Dr Bentivoglio took a history of the incident on 28 April 2021 as follows:
“Mr Ronaldson advised me that on 28 April 2021 he was using an angle grinder. He was sitting on a chair and was cutting a shelf. He bent forward to start cutting when he experienced some back pain. This caused him to jolt forward and he had a laceration to his left wrist as well as fracturing his left radius.”
Later in the report, the same incident was described:
“He advised me long after his spinal operation, he was using an angle grinder, got some degree of pain present in his back that caused him to flex forward and sustain a nasty laceration to his left wrist.”
Asked to comment on the relationship between the left forearm injury and the applicant’s employment, Dr Bentivoglio responded,
“I believe, although it is a very unusual history, it is possible that Mr Ronaldson did sustain the laceration of his forearm as a result of flexing forward with back pain. He did not, however, sustain a specific injury to his left forearm while he was actually working with Express Wholesalers Pty Ltd.”
Dr Bentivoglio made an assessment of whole person impairment but did not include any assessment for the left upper extremity on the basis that maximum medical improvement had not been reached.
In his second report, dated 14 February 2022, Dr Bentivoglio took a similar history of the incident on 28 April 2021:
“On 28 April 2021, he was using an angle grinder and was sitting on a chair when he experienced some back pain. This caused him to lurch forward onto the angle grinder sustaining a laceration of his left wrist as well as fracturing his left radius.”
Dr Bentivoglio determined that maximum medical improvement had been reached and made an assessment of the degree of permanent impairment at the left upper extremity in addition to the lumbar spine.
In his final report, Dr Bentivoglio recounted the same history but corrected an error in the combined impairment rating used in his previous report.

Dr Rowden

The respondent relies on a medicolegal report prepared by orthopaedic surgeon, Dr Neville Rowden, dated 21 June 2022.
Dr Rowden took a history as follows:
“On 28 April 2021 Mr Ronaldson was at home. He was then still looking for employment. This was over 18 months following his spinal procedure. He tells me that he had a leaking tap in his kitchen, and this had damaged some shelving. The shelf was made of a form of compressed chipboard. He tells me he had an angle grinder at home and then he went to Bunnings to purchase a circular saw disc for his angle grinder, and he had planned to cut away some water damaged wooden shelving situated about 14 cm above the level of the floor. He then said he had to sit in a low seat about 50 cm high to enable him to reach down to use the cutting device of the angle grinder.
He then said in retrospect Bunnings should not have sold the saw attachment because he realised now that it was such a dangerous thing and he also stated that he had no formal training in using an angle grinder. He did say he had goggles on, but he had no protective clothing for his hand or forearm or his legs.
While using the saw attachment of the angle grinder (from the sitting position) he leant forward to cut the wooden shelving. The moment this happened, the angle grinder kicked back causing a serious injury to his left distal forearm.”
Dr Rowden was asked whether the left forearm condition was consequential to the back injury. Dr Rowden responded:
“I would say the injury Mr Ronaldson received to his left forearm is not consequential to his back injury. I believe the use of an angle grinder with a saw cutting attachment and the subsequent kickback was related to inexperience on behalf of Mr Ronaldson and lack of protective gear. One of the many ways of having serious injuries from angle grinding equipment is the phenomena called kickback which almost certainly happened in this situation where the angle grinder grabs or jams in the material when being cut. It is almost certainly related to use inexperience. From your letter, dated 31 May 2022, Section 3.11 states “none of the contemporaneous entries make any reference to the worker experiencing any back pain which caused him to jolt forward injuring his left forearm.
I would put Mr Ronaldson’s injury to his left forearm on 28 April 2021 as a misadventure unrelated to his lumbar spine injury.”

Applicant’s submissions

The applicant submitted that the respondent’s dispute notice relied on the absence of contemporaneous medical evidence of a back spasm being felt by the applicant in connection with the left forearm injury.
The applicant submitted that the respondent ignored the report of Dr Moore, dated
10 August 2021, in favour of a brief description in a clinical record of a telehealth consultation on 3 May 2021. The applicant submitted that the Commission would give more weight to the more detailed and considered response from Dr Moore in the report of 10 August 2021. In that report, Dr Moore turned his mind to the relationship between the lumbar injury and the subsequent event in April 2021. The report was prepared within a few months of the incident.
Within 13 days of the event in April 2021, a history of back pain and spasm in connection with the event was recorded in the certificates of capacity issued by Dr Moore. It was noted that none of Dr Moore’s clinical records referred to a back spasm in connection with the angle grinder injury despite the inclusion of this history in the certificates of capacity.
The applicant submitted that a consistent account had been given to his doctors and was accepted by those doctors. In contrast, Dr Rowden did not take into account the correct history. Although Dr Rowden had Dr Moore’s report, he made no mention of the possibility that the reason the applicant lurched forward was due to back pain. Dr Rowden took the insurer’s position at face value in accepting that there were no contemporaneous reports of back pain without referring to the evidence from Dr Moore.
The applicant noted that in his report, Dr Rowden expressed doubt about the occurrence of a compensable back injury. The applicant submitted that given the occurrence of a lumbar injury was not in dispute, this suggested the insurer was not persuaded by other aspects of Dr Rowden’s report.
Although the hospital records did not record a history of back spasm causing the applicant to lurch forward, this should be viewed in the context of there having been a significant traumatic injury to the left wrist including significant blood loss. The applicant submitted that it would not be surprising that the applicant was preoccupied more with his wrist than in giving a detailed history of the relationship to the work injury. The reason for the injury was not relevant and it was not unreasonable that the back spasm was not mentioned in the hospital records.
The contemporaneous evidence indicated that the applicant initially presented at St George Hospital but was then transferred to Sydney Hospital where he underwent surgery. The applicant submitted that events happened very quickly and the applicant would have been preoccupied with obtaining treatment for his wrist.
The applicant referred the Commission to the reports from Dr Nabarro and Dr Bentivoglio. The histories recorded by Dr Nabarro and Dr Bentivoglio were consistent with the applicant’s statement evidence.
The applicant referred the Commission to the errors or omissions in the hospital and ambulance records identified in his written statement.
The applicant submitted that the only doctors who had considered the reported mechanism of injury were Dr Moore, Dr Nabarro and Dr Bentivoglio. The mechanism was recorded as early as 13 days after the event. This was not a situation where there was a significant delay between the event and back spasm being reported. The report was given to a treating doctor, not just an independent medical examiner. The insurer was on notice of the causal relationship between the left forearm condition and the lumbar injury from as early as
May 2021.
Using a commonsense approach, the applicant submitted it was not difficult to anticipate that a busy hospital worker or paramedic may not record a detailed account of how the injury happened. When asked to describe the causal relationship, Dr Moore gave a considered and forthright account relating the forearm injury to a back spasm.

Respondent’s submissions

The respondent submitted that it remained unclear whether the applicant told the hospital or ambulance paramedics about a back spasm causing him to lurch forward while using angle grinder. It was unclear from the applicant’s evidence whether he was in so much shock that he didn’t mention the back spasms or whether he claimed to have mentioned the back spasm but both hospitals and the paramedics failed to record it.
The respondent referred to the relevant authorities on the requisite causal test and submitted that there was a novus actus interveniens in the use of the angle grinder. The respondent submitted that the applicant did not get proper instructions on the use of the angle grinder. It was well known that the teeth of a saw blade could cause the grinder to bounce. There were a number of intervening events between the back injury and the cause of the damage to the applicant’s left forearm.
The respondent submitted that had there been evidence of back spasms causing voluntary movements prior to the event in April 2021 the applicant’s case would be much stronger. Although there were reported complaints of pain, there was no evidence of spasms.
Even if the applicant did experience pain in his back at the time he started using the angle grinder there was still an intervening event in the use of the angle grinder with a saw-like attachment. The respondent submitted that coincidence should not be mistaken with causation.
The respondent submitted that the best evidence was to be found in the original explanation given to the ambulance officers. Although there was a clear typographical error in the reference to a right wrist injury, the description of the mechanism of injury was detailed and contained no reference to back spasms.
The St George Hospital Records contained no reference to back spasms causing the applicant to lurch. The initial clinical record made by Dr Moore on 3 May 2021 contained no reference to back spasm.
The records of Sydney Hospital described the applicant “slipping suddenly” and was consistent with the history recorded in the ambulance records.
In none of the initial consultations was there any reference to back pain or spasms.
The respondent submitted that the contemporaneous evidence would preclude a determination that the left forearm injury resulted from the work injury to the back. The connection between the two events was too attenuated.
The respondent submitted that support for its position was found in the expert evidence of
Dr Rowden. Dr Rowden appear to have taken a proper history, which included a history of a kickback. Dr Rowden said user inexperience and lack of protective equipment were the cause of the incident.
The respondent noted that Dr Nabarro’s history was also of the blade of the saw “ricocheting”. The respondent noted this history differed from that recorded by Dr Bentivoglio of the applicant lurching forward “onto the angle grinder”.
The respondent submitted that had a back spasm been relevant to the mechanism of injury, one would expect it to have been mentioned somewhere in the contemporaneous records.
The medical evidence before the Commission included inconsistent accounts of the mechanism of injury but a consistent history of a circular saw ricocheting or kicking back.
Even if the Commission were to accept that there was a back spasm, the evidence was unclear as to whether the spasm was attributable to the work injury. There may be a number of reasons why the applicant’s back would go into spasm at that moment.
In all the circumstances, the Commission would not be satisfied the applicant had discharged his onus.

Applicant’s submissions in reply

The applicant noted that the respondent’s submissions referred to a lack of evidence of back spasm in the clinical records in the lead up to the event on 28 April 2021. The applicant submitted that all the Commission needed to accept was that there was a back spasm on that day in the way described by the applicant’s doctors.
The applicant submitted that Dr Rowden was not qualified to express an opinion on the applicant’s experience or his use of the angle grinder.
Whilst there was no mention of a back spasm in the hospital or ambulance records, a back spasm was mentioned in the certificate of capacity issued 13 days afterwards. Although
Dr Moore’s clinical records did not refer to a back spasm on 3 or 12 May 2021, it is apparent that the back spasm was mentioned given the reference to it in the certificate of capacity dated 12 May 2021.

FINDINGS AND REASONS

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.”
It is accepted that the applicant sustained an injury for the purposes of s 4 of the 1987 Act to his lumbar spine on 14 January 2019. What is in dispute in these proceedings is whether the condition at the applicant’s left upper extremity sustained in the event on 28 April 2021 “resulted from” the injury to the applicant’s lumbar spine.
The test for establishing a consequential condition can be distinguished from that required to establish an “injury”.
In Bouchmouni v Bakhos Matta t/as Western Red Services,[1] Roche DP commented,
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). …
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[1] [2013] NSWWCCPD 4.
A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates,[2] where Kirby P (as his Honour then was) said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[2] (1994) 10 NSWCCR 796 at [810].
His Honour said at [463] - [464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
It is the applicant who bears the onus of establishing on the balance of probabilities that the condition at his left upper extremity resulted from the work injury to his lumbar spine. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[3] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[3] [2008] NSWCA 246.
The applicant’s case rests heavily on his subsequent reporting of the incident on
28 April 2021. As is conceded by the applicant, none of the most contemporaneous evidence of the incident suggests that the applicant’s lumbar injury was a contributing factor.
The first account of the event appears in the records of St George Hospital. The progress notes on the day of the event describe the applicant cutting a kitchen bench with a circular saw. Of note, the records refer to the applicant having used a “new blade”, suggesting some significance to the use of that particular blade.
The discharge summary from St George Hospital contained little else by way of explanation of the event, but it is apparent that the past medical history given by the applicant included a lumbar spine fusion operation in 2019, in addition to a number of other conditions. Nowhere in those records, however, is it suggested that the applicant’s history of lumbar injury was relevant to the condition at his left forearm.
The applicant was transferred to Sydney Hospital by ambulance. A slightly more detailed description of the event is contained in the ambulance electronic medical record of the same date. That record described a blade “bouncing” from timber and cutting into the applicant’s wrist and forearm. Nothing in the record indicates that the applicant had experienced lumbar symptoms which had caused him to lurch forward.
The progress notes from Sydney Hospital referred to a circular saw blade flipping out and causing a laceration. Elsewhere in the progress notes it is recorded that the applicant “slipped suddenly” whilst cutting a cupboard, causing the blade to cut through the forearm. The notes record that the applicant reported experiencing feelings of “stupidness and frustration” that the injury had occurred. The discharge summary from Sydney Hospital also included a prior medical history of lumbar surgery. Once again, however, there is nothing in those records suggesting lumbar symptoms were relevant to the injury to the applicant’s forearm.
The next account of the incident appears in the clinical record made by Dr Moore following a telehealth consultation a week later, on 3 May 2021. That record simply referred to an angle grinder being used with a circular saw blade.
The most contemporaneous evidence of the incident, therefore, does not corroborate the accounts of a back spasm or back pain later given by the applicant to Dr Moore, Dr Nabarro and Dr Bentivoglio and set out in his written statement.
Significantly, the records from all of the initial treatment providers suggest that the particular blade being used by the applicant was a contributing factor to the accident. There was consistent reference to the angle grinder being used with a “circular saw blade”. The blade was described as “new” and there was reference in two sources to the blade “bouncing” or “flipping out”. There was also reference to the applicant “slipping” but no suggestion that this was due to any back spasm or acute lumbar symptoms. All in all, the contemporaneous evidence is suggestive of an accident caused by a new saw blade bouncing or while the applicant was using it.
The first account of back pain or spasm appears in the certificate of capacity issued by
Dr Moore on 12 May 2021, two weeks after the event. While I accept that two weeks is not a lengthy period of time, the delay is significant when one takes account of the fact that the applicant received treatment from two different hospitals, the ambulance service and
Dr Moore within that period of time without a single reference in any of those records to a back spasm causing the event.
There could be several explanations for the omissions in the contemporaneous evidence.
It is possible that the back spasm was mentioned but not recorded. The applicant has identified several inaccuracies in the contemporaneous records. It is also well established in this jurisdiction that clinical records are to be approached with caution. In Mason v Demasi,[4] Basten JA stated:
[4] [2009] NSWCA 227.
“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 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.”

I also note the applicant’s observation that Dr Moore’s clinical notes do not mention the back spasm at all despite Dr Moore clearly being on notice of it as evidenced by his certificates of capacity and report to the insurer on 10 August 2021.
The absence of any mention of lumbar symptoms in the records of any of the four separate treatment providers first involved in the applicant’s care suggests, however, that the omission may not be related to recordkeeping but rather a failure to report the involvement of lumbar symptoms.
If this is the case, there could be several explanations for the applicant’s failure to mention the back spasm. The applicant’s submissions highlighted the serious and traumatic nature of the injury to his forearm, significant blood loss and the administration of strong sedative and pain-relieving medications. As Dr Nabarro has observed, the state of shock in which the applicant presented to the Emergency Department could account for the incomplete history.
While these circumstances provide a plausible explanation for the omission in the hospital and ambulance records, the explanation is less persuasive when it comes to the omission in Dr Moore’s clinical note of 3 May 2021. It may be that the applicant did tell Dr Moore of the spasm on 3 May 2021 and he simply did not record it.
Unfortunately, neither Dr Moore nor the applicant have given evidence as to when the spasm was first disclosed.
The absence of contemporaneous evidence of a back spasm is a significant consideration and one which I am bound to take into account. The value of contemporaneous evidence in determining whether an applicant has discharged his or her onus has been repeatedly endorsed by the courts: Watson v Foxman[5] and Onassis v Vergottis.[6] In the latter case, 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."
[5] (1995) 49 NSWLR 315.
[6] (1968) 2 Lloyds Report 403.
In Department of Education and Training v Ireland[7] 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.”
[7] [2008] NSWWCCPD 134.
I have also taken notice of the comments of Snell DP in Jowett v S & R Jowett Pty Ltd[8] (Jowett):
“There is a difference between the rejection of a person’s evidence and a finding that he or she deliberately lied in the giving of that evidence. The rejection of evidence does not amount to a conclusion that a witness knowingly gave false evidence. Similarly, a person’s credit can be challenged, for example on the basis of unreliability, without it being asserted or found that he or she was being deliberately untruthful.”
[8] [2022] NSWPICPD 42.
I am satisfied on the evidence contained in Dr Moore’s certificates of capacity that the applicant associated the incident on 28 April 2021 with a back spasm or acute onset of pain and reported this to Dr Moore by 12 May 2021.
I am further satisfied that the applicant’s lumbar spine injury continued to be symptomatic around the time of the incident on 28 April 2021. There is, however, no specific evidence to which I have been referred to indicate that the applicant was experiencing acute symptoms in the lower back or spasms.
I have given weight to the fact that the applicant’s treating doctors, Dr Moore and Dr Nabarro, have found the applicant’s explanation of the causal relationship between the left forearm injury and the lumbar injury plausible.
I also accept that Dr Bentivoglio has ultimately accepted the presence of a causal relationship, although his opinion is less compelling. Dr Bentivoglio described the history as “very unusual” and said it was “possible” that the laceration was the result of the applicant flexing forward with back pain.
I also accept that the applicant has continued to report an association between the back injury and the incident of 28 April 2021 since 12 May 2021. There are, however, inconsistencies in the way the incident has subsequently been recorded.
The respondent drew attention to the suggestion in Dr Bentivoglio’s history that the applicant flexed or lurched forward and fell onto the blade. Dr Nabarro said the applicant bent forward involuntarily and the blade ricocheted into a cupboard and then his left wrist. The applicant’s statement evidence is that he lurched forward into a wall, which in turn caused the angle grinder to kick back off the wall. The applicant said he was not cutting a cupboard when the injury happened. Dr Rowden, who has recorded the most detailed history, said that the moment the applicant leant forward the angle grinder kicked back causing the injury to the forearm. Dr Moore did not give a precise description of how the blade came into contact with the forearm.
The relevance of delays and inconsistencies was considered in Jowett where Snell DP commented:
“The extent to which a delay or inconsistency in reporting complaints is significant will depend on the facts of a case overall, the nature of the medical condition at issue and the medical evidence. The allegation regarding a fall at the hospital involved the occurrence of a specific incident and (on one version of it) the left shoulder being dislocated. These are matters that would ordinarily be immediately apparent, unlike, for example, a condition of gradual onset. In the circumstances, evidence of contemporaneous complaint would be of potential relevance to whether an incident occurred and its nature.”
The facts of this case are distinguishable from Jowett insofar as the issue in that case was whether there was an incident at all, whereas in this case the dispute relates to the manner in which the incident happened. Nonetheless, the fine discrepancies in the histories recorded by the doctors and set out in the applicant’s statement remain significant in the context of the initial delay in reporting a back spasm and lack of contemporaneous corroboration of the applicant’s claim.
I have also taken into account the respondent’s submission that other events or factors may have contributed to the event. The use of a “new” blade, with which the applicant was apparently unfamiliar is one such factor. The serrated or saw-toothed edge of the blade and the potential for that edge to cause a kick back or ricochet as it made contact with a hard surface is another factor, mentioned repeatedly in the treating evidence. The evidence indicates that the applicant was sitting, leaning forward on a low stool to cut at a height much closer to the ground when the incident occurred, suggesting the potential for an accidental slip (as suggested by the Sydney Hospital notes), whether related to back spasm or not. The clinical notes also suggest that in the months before the incident the applicant had reported tingling and weakness or clumsiness in his right upper limb associated with pathology in the cervical spine. I accept, however, that there is no suggestion that such symptoms were still being experienced around the time of the incident.
The presence of other contributing factors would not necessarily preclude the applicant from discharging his onus, provided the work injury materially contributed to the incident.[9]
[9] See Murphy v Allity.
There is, however, a further difficulty with the applicant’s evidence, as noted by the respondent’s submissions. Even if I were to accept that the applicant did experience a sudden onset of pain or back spasm at the same moment he leant forward to use the angle grinder and that this caused him to lurch involuntarily and injure himself with the angle grinder, there is no medical evidence to confirm that this symptom resulted from the work injury more than two years earlier. The applicant’s unusual positioning at the time, the movement of leaning forward to commence cutting and the weight and force of the power tool, together with the presence of degenerative pathology at the lumbar spine, potentially indicate a separate injury or intervening event at the lumbar spine.
It may be that the work injury and subsequent surgery rendered the applicant’s spine more vulnerable to the acute onset of pain at that moment but this is simply not addressed by the medical evidence. No pathological explanation of the acute symptom has been provided in the medical evidence. This is significant given the absence of evidence of similar acute episodes in the lead up to the incident.
I find some force in the applicant’s submissions, including his criticisms of the evidence from Dr Rowden. It is, however, the applicant who bears the onus in this case.
While I have no reason to doubt the applicant’s credibility generally, and I give real weight to the fact that his explanation of the causal relationship between the lumbar injury and angle grinder incident has been accepted at face value by his treating doctors and Dr Bentivoglio, the Commission is tasked with making a determination based on all of the evidence before it.
Weighing all of that evidence, I am not satisfied, on the balance of probabilities that the condition at the applicant’s left upper extremity did result from the lumbar injury on
14 January 2019. The combination of the lack of corroboration in the most contemporaneous accounts of the incident from several sources; the inconsistencies in the accounts subsequently recorded; the other possible causes or contributing factors to the incident; and the lack of medical explanation of how an acute bout of pain or spasm, if it did occur, was causally related to the injury on 14 January 2019 as opposed to some intervening event, leaves me without a sense of actual persuasion as to the claimed causal connection.
The applicant has failed to discharge his onus of establishing that a consequential condition at the left upper extremity resulted from the injury to his lumbar spine on 14 January 2019.
In light of the finding above and the parties’ agreement as to the degree of permanent impairment at the lumbar spine resulting from the injury on 14 January 2019, there will be an order, made with the consent of the parties, for the respondent to pay lump sum compensation pursuant to s 66 of the 1987 Act in respect of 19% WPI of the lumbar spine.

[2023] NSWPIC 230

19 May 2023