Singh v Integrated Parramatta Industrial Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Singh v Integrated Parramatta Industrial Pty Ltd [2021] NSWPIC 399
APPLICANT:	Varinder Singh
RESPONDENT:	Integrated Parramatta Industrial Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	7 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Application for assessment by a Medical Assessor (MA) in respect of a work injury damages threshold dispute; whether injury to cervical spine in injurious event; lack of contemporaneous evidence of neck injury or symptoms; subsequent motor vehicle accidents; Department of Education and Training v Ireland considered; Held - award for the respondent with respect to allegation of injury to cervical spine; matter remitted to President for referral to MA to assess undisputed body parts.
DETERMINATIONS MADE:	1. Award for the respondent with respect to the allegation of injury to the cervical spine on 16 February 2000. 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 16 February 2000 Body Parts: lumbar spine left upper extremity (shoulder) right upper extremity (shoulder) upper digestive tract Method: Whole Person Impairment. 3. The materials to be referred to the Medical Assessor are to include the Application for Assessment by a Medical Assessor and all attachments and the Response and all attachments.

STATEMENT OF REASONS

BACKGROUND

Mr Varinder Singh (the applicant) was employed by Integrated Parramatta Industrial Pty Ltd (the respondent) at a Woolworths warehouse when he was injured on 16 February 2000.
The applicant alleges that he was unpacking a container full of bundled paper rolls when the front of the container tilted suddenly, resulting in the applicant losing his balance and falling heavily to the floor.
The applicant was awarded or entered into agreements for lump sum compensation for permanent impairment or loss of the efficient use of his back, left leg at or above the knee, right leg at or above the knee, sexual organs and bowel function as a result of the injury in 2002, 2007 and 2011.
A complying agreement pursuant to s 66A of the Workers Compensation Act 1987 (the 1987 Act) was entered into on 11 December 2017 in respect of further loss at the left and right legs at or above the knee, sexual organs and bowel function as well as loss of the efficient use of the left and right arms at or above the elbow.
On 11 April 2018, the applicant’s solicitors wrote to the respondent alleging that the injury had resulted in the 15% whole person impairment (WPI) threshold being reached for the purposes of a common law damages claim.
Solicitors for the respondent wrote to the applicant on 12 September 2018 advising that the respondent did not accept that the applicant had at least 15% WPI as a result of the injury. A Pre-Filing Statement lodged in the Workers Compensation Commission was alleged to be defective.
On 4 July 2019, the respondent’s insurer issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act) disputing the applicant’s entitlement to compensation for an alleged injury to the applicant’s cervical spine in the event on 16 February 2000.
The present proceedings were commenced by a Form 7 Application for Assessment by a Medical Assessor lodged in the Commission on 1 July 2021. The applicant seeks to have a threshold dispute for a work injury damages claim referred to a Medical Assessor pursuant to s 314 of the 1998 Act.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the applicant sustained an injury to the cervical spine on 16 February 2000.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing by telephone on 6 September 2021. The applicant was represented by Mr Greg Horan of counsel, instructed by Ms Cassandra Dien. The respondent was represented by Ms Lyn Goodman of counsel, instructed by Ms Emma Blackman.
During the conciliation conference it was agreed that the lumbar spine, left upper extremity (shoulder), right upper extremity (shoulder) and upper digestive tract could be referred to a Medical Assessor. The parties remained in disagreement as to whether there was an injury to the cervical spine capable of referral.
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) Application for Assessment by a Medical Assessor and attached documents, and
(b) Response to an Application for Assessment by a Medical Assessor and attached documents.

Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by him on 12 June 2017 and 8 August 2018.
In his first statement, the applicant described the injury on 16 February 2000. The applicant was working in a container at a Woolworths warehouse taking goods and putting them onto pallets. The container was held up with a jack. The jack broke, causing the container to tilt and the applicant fell, feeling pain in his neck, left arm and lower back. The applicant’s pain was severe and he felt faint.
The applicant was seen by the company doctor who said that nothing serious had happened and he could go home. The applicant saw his own doctor the next day due to pain in his lower back and left arm. The applicant was referred for an x-ray and to a physiotherapist.
On 25 April 2001, the applicant was involved in a motor vehicle accident which exacerbated his back injury.
The applicant went off work in September 2004 as his back had become worse. The applicant made claims for compensation in relation to his back, left leg and sexual organs.
The applicant noticed pain at the right shoulder in around 2004, which improved initially but returned in around April 2009.
In around 2010, the applicant noticed pain in the left shoulder. The applicant’s pain extended from his back to his neck and shoulders.
The applicant said he still had pain in his back, neck, both legs and left arm although his right arm was improved.
In his second statement, the applicant described the incident on 16 February 2000 and said the fall caused a low back and left arm injury.
The applicant described disabilities including pain, aching and restriction of movement to the neck.

Claim form

An Employee’s Compensation Claim form completed in respect of the injury on 16 February 2000 described an injury to the applicant’s hand and upper back. The injury occurred when the applicant was inside a container, the container fell down from a jack and the applicant fell down, injuring the left side of his hand and feeling pain in his back.

Treating medical evidence

Musculoskeletal medicine and rehabilitation specialist, Dr David Manohar, prepared an initial report for the applicant’s general practitioner on 5 April 2000. Dr Manohar noted:
“His presenting problem is pain in the lumbosacral region which extends up into the infra scapular region.
He was well, fit and healthy and had no history of a back injury before the 16th February, 2000 when he was working as a warehouse attendant for Inderadge Pty Ltd. He told me that he was lifting goods from a container during the course of his duties and Placing them on an escalator. While doing so, he had to lift and twist. The container tipped back when the pallet jack broke. This resulted in his twisting injury. He developed pain in the lumbosacral region. He consulted you and underwent physiotherapy.”
On 12 April 2000, Dr Manohar noted the applicant was complaining of low back pain extending to his gluteal regions associated with tightness of the low back region.
On 26 April 2000, Dr Manohar reported that the applicant was still complaining of pain in the lumbosacral region and right thigh.
On 3 May 2000, Dr Manohar reported:
“He tells me he has pain in the lumbar region, extending to the flank and up into the interscapular region. The pains are increased by bending.”
On 10 May 2000, Dr Manohar noted complaints of back pain felt in the lumbar region, tightness of the lumbosacral spine and some paraesthesia extending down to the gluteal region.
On 31 May 2000, Dr Manohar noted complaints of back ache. Similarly, on 5 July 2000 the applicant reported pains felt in the lumbar region extending to the gluteal region. On 21 July 2000 there was pain in the lumbar region increased after osteopathic treatment.

On 26 July 2000, Dr Manohar reported:
“He still has pain in the neck and back, extending down the right thigh. The insurance company has denied liability. He has a hypomobile lumbar spine and there is pain on side flexion.”
On 18 October 2000, Dr Manohar noted complaints of pain in the lumbar region extending to both hips. The applicant had been undergoing osteopathic treatment with no improvement. A report on 20 November 2000 by Dr Manohar dealt with the lumbosacral spine.
On 18 December 2000, Dr Manohar prepared a report dealing with an injury to the left middle finger. On 8 January 2001, Dr Manohar referred to the finger injury and a recent CT scan of the lumbosacral spine. Pain in the lumbar region extending to the thoracolumbar junction was reported again on 28 May 2001.
On 7 September 2001, Dr Manohar prepared a report for the applicant’s solicitors. Dr Manohar said the applicant described the injury on 16 February 2000 as follows:
“The container tipped back when the pallet jack broke. This resulted in his twisting injury. He developed pain in the lumbosacral region. He consulted his family physician and underwent physiotherapy.”
When seen, the applicant was complaining of pain in the thoracic and lumbar junction extending down into the lumbosacral region. Dr Manohar diagnosed a strain of the sacrospinalis and interspinous ligaments. Dr Manohar referred to the consultations that followed in a manner consistent with the reports described above. Dr Manohar gave the opinion that the applicant had a permanent impairment of his back of 20% attributable to the incident in the course of his work on 16 February 2000.
Dr Manohar saw the applicant again on 10 September 2001 and 29 October 2001 in relation to back pain. On 29 April 2002, Dr Manohar reported:
“He still has pain in the lumbar region and the mid-dorsal region. At times the pain extends to the neck. He tells me that all activities aggravate the pain. He has difficulty in rotating the neck, especially to the right side.”
In a report dated 7 September 2004, Dr Manohar referred to gradually worsening back pain. No further mention was made of symptoms in the neck.
The applicant’s new general practitioner, Dr M Pukanic, prepared a report for the insurer on 20 April 2005. Dr Pukanic took a history of the applicant sustaining injuries to his lower back and left forearm in the fall. The applicant complained of pain in the lower back, weakness of the right leg, occasional numbness in the right leg, occasional numbness in the left leg, and pain and occasional swelling of the left forearm.
Orthopaedic surgeon, Dr Vijay Maniam, prepared a report for the applicant’s solicitor on 15 June 2005. Dr Maniam first saw the applicant on 31 March 2005. Dr Maniam took a history of the incident causing injury to the left forearm, the cervical spine and the lumbar spine. The applicant reported ongoing symptoms including neck pain of mild intensity. Dr Maniam’s examination was recorded as follows:
“The neck was held in the neutral, the cervical lordotic curve was preserved. The shoulders and scapulae were held symmetrically. The muscles were not spasmodic. There was vague tenderness in the lower cervical segment. The ailanto axial joint and the suboccipital nerves were normal to examination. Movement range were satisfactory, forward flexion and extension inducing pain at the limit of range. Lateral flexion and rotation were normal.”
Dr Maniam diagnosed a musculoligamentous strain of the cervical spine. Dr Maniam said there was a causal connection in so far as the cervical spine and lumbar spine injuries were concerned. Dr Maniam made an assessment of permanent impairment for the back but not the cervical spine.
Dr Pukanic prepared a further report on 6 September 2007. On this occasion, Dr Pukanic recorded that the applicant had “subsequently developed pain in his cervical spine”. A CT scan of the cervical spine showed many degenerative changes at C4/5, C5/6 and C6/7.
On 11 February 2008, Dr Pukanic again recorded a history of injury to the lumbosacral spine and left forearm and the “subsequent” development of pain in the cervical spine. Dr Pukanic gave the opinion that the applicant had continuous symptoms of a musculoligamentous strain to the cervical spine with nerve root irritation into the right upper limb.
Dr Pukanic referred the applicant for an MRI of the cervical spine, which took place on 19 March 2009. The MRI was reported to be notable for a degenerate C5/6 disc with right paracentral protrusion indenting the ventral thecal sac. In addition, there was mild foraminal stenosis at C3/4 abutting the exiting right C4 nerve root.
WorkCover certificates issued by Dr Christopher Grant dated 21 January 2011, 16 February 2011, 23 February 2011, 21 March 2011 and 20 May 2011 described a whiplash injury to the applicant’s neck and lower back on 14 January 2011 when the applicant’s truck rolled going around a roundabout.
A CT scan of the cervical spine was performed on 26 May 2011, which was reported to show marked osteoarthritis at the right C2/3 facet joint. The C5/6 space was moderately diminished with small osteophytes. There was mild bilateral facet joint arthritis at this level and abroad chronic posterior disc bulging with disc osteophyte complexes. There was mild facet joint osteoarthritis on the left C6/7 and mild right to C7/T1 facet joint arthritis.
An MRI of the full spine done on 15 July 2011 reported no significant disc protrusion at C2/3, C3/4, C4/5, C6/7 or C7/T1.
A whole-body bone scan performed on 18 July 2011 was reported to show no cause for the applicant’s symptoms of cervical, right shoulder, left knee, thoracic and lumbar spine pain.
A full spine MRI on 19 July 2011 was reported to show very mild spondylitic changes at the cervical spine. At the C5/6 level there was a large broad-based disc osteophyte with a right lateral prominence compressing the court causing bilateral foraminal stenosis.
WorkCover certificates of capacity issued by Dr Pukanic after 27 May 2014 described the work injury on 16 February 2000 as involving the neck, back, shoulders and depression.

Historical medicolegal evidence

Orthopaedic surgeon, Dr Donald Jones prepared a report for the insurer on 4 July 2000. Dr Jones took a history of the applicant experiencing pain in his left forearm after falling backwards in the container. By the following day, the applicant was experiencing pain in his lower back as well as the left forearm. Left forearm and lumbar spine x-rays were taken. The applicant was referred for physiotherapy had given a prescription for an anti-inflammatory medication, which did not improve his symptoms. The applicant was subsequently referred to Dr Manohar, a rehabilitation specialist who recommended ongoing physiotherapy and a trial of Celebrex. The applicant was also noted to be seeing an osteopath twice weekly and to have commenced antidepressant pain block medication at night.
The applicant reported aching in his lower back becoming significant at night and some referred pain into the left buttock and groin. The symptomatic discomfort in the applicant’s left arm had resolved.
Dr Jones performed an examination of the head, neck and upper limbs which did not identify any significant findings other than a long linear incision over the anterior lateral aspect of the left forearm from a previous surgery.
Surgeon, Dr WGD Patrick, prepared a report for the applicant’s solicitors on 27 October 2000. Dr Patrick took a history of the fall in which the applicant was said to have hurt his back with pain at the whole of the lumbar region and sustained an injury to the left arm. Dr Patrick described symptoms including depression, ongoing low back pain, some thoracic pain, radiation of pain into the left thigh, left leg weakness, sleep disturbance, some ongoing discomfort at the left forearm and restriction of recreational activities.

Dr Patrick recorded that range of movement at the cervical spine was reasonably full.
Dr Patrick diagnosed an aggravation of lower lumbar facet arthropathy. At the time of his assessment, there was back impairment in the order of 10% but Dr Patrick suggested there may be some further settling of symptoms.
Orthopaedic surgeon, Dr Graham Mahony prepared a report on 16 July 2001. Dr Mahony reported that the applicant sustained a haematoma to the left forearm and an injury to the lower back in the incident. The applicant had been treated with tablets and physiotherapy. The applicant’s present complaints included pain in the left forearm, occasional pain in the right elbow, low back pain radiating to the left thigh and occasionally radiating to the mid-back and shaking in the left leg.
Orthopaedic surgeon, Dr Kalev Wilding, prepared a report for the respondent’s solicitors on 31 July 2001. Dr Wilding took a history of the applicant falling flat onto his back and striking his left forearm in the fall. The applicant initially experienced discomfort in the left forearm which settled quickly. The fall precipitated low back pain which had persisted. The applicant’s current symptoms included constant ache in the lower back and pain in the left thigh, occasionally in the left buttock.
General surgeon and medicolegal consultant, Dr Neil Berry, prepared a report for the applicant’s solicitors on 16 August 2001. Dr Berry took a report of the applicant hurting his back and left arm in the fall on 16 February 2000. The applicant reported symptoms of back pain and episodes of the left leg giving way. Dr Berry’s examination of the cervical spine was reported to be normal.
Dr Wilding prepared a further report on 25 October 2001. The applicant had confirmed that the history reported previously was correct. The applicant’s symptoms remained the same.
Dr WG Taylor prepared a report for the applicant’s solicitors on 21 May 2002. Dr Taylor took a history as follows:
“The container in which he was standing was elevated with a jack which broke and he fell in the container injuring his left arm, his back and his neck. He was away from work for three weeks and then went back to work and remained working.”
Dr Taylor reported that the applicant’s present complaints included pain in the left elbow, left shoulder and back. Dr Taylor’s examination of the neck was described as follows:
“Active movement of his neck were almost full but somewhat stiff and uncomfortable in the extremes of movement.”
Dr Taylor gave an opinion as follows:
“I feel as a result of his fall in the container when the jack supporting the container broke he sustained an injury to his left elbow, his back and his neck. He seems in the main to have recovered from his neck pain but it is still a little stiff. A full range of active movement can be achieved.”
Dr Taylor assessed the applicant as having a 12% permanent impairment of the neck.
Dr Jones prepared a further report for the insurer on 25 June 2002. Dr Jones noted a motor vehicle accident occurring on 25 April 2001 in which the applicant’s car was hit from behind. The applicant described pain for 3 to 4 weeks in his lower back as well as a minor crush injury to his left long finger. The applicant reported some low back ache and difficulty sitting, cramp like sensations in his left leg and onset of left elbow pain. Dr Jones’ examination of the head and neck did not identify any new findings.

Orthopaedic surgeon Dr D O’Keefe prepared a report for the insurer on 9 March 2005. Dr O’Keefe took a history of the applicant injuring his left arm and low back in the fall.
Orthopaedic surgeon, Dr Roger Pillemer prepared a report on 2 March 2006. The applicant complained of discomfort on palpation of his spine from sacral region to the upper thoracic region.
Dr Pillemer prepared a further report on 13 December 2006. The applicant again described constant lower back pain radiating to his left lower limb.
A Medical Assessment Certificate was issued by Approved Medical Specialist, Dr Roger Rowe, in Workers Compensation Commission proceedings 638/07 on 11 April 2007. The applicant had been referred for assessment of permanent impairment of the back and permanent loss of use of the left leg at or above the knee. Dr Rowe took a history of the applicant developing pain in the low back and left arm incident on 16 February 2000. Dr Rowe recorded that the applicant’s present symptoms included constant backache, pain down the back of both sides, as well as a shaking and weak feeling in the legs.

Dr Khan

General surgeon and musculoskeletal medicine specialist, Dr Sikander Khan, has prepared a number of medicolegal reports for the applicant.
In his first report, dated 2 November 2016, Dr Khan took a history of the applicant falling and hurting his back and left arm. Dr Khan said,
“pains radiated to the neck and both shoulders and arms and he also developed pains going down the legs subsequently.”
Dr Khan said the applicant’s present symptoms included pain in the midline and left side of the neck. Dr Khan noted the motor vehicle accident in April 2001 causing exacerbation of the back injury. In 2014 the applicant was involved in a motor vehicle accident which caused exacerbation of his neck and back pains. These were treated by Dr Pukanic with medication.
Dr Khan made reference to an MRI of the cervical spine performed on 19 March 2009, which was reported to show a degenerative C5/6 disc right paracentral protrusion indenting the ventral thecal sac as well as mild foraminal stenosis at C3/4.
A CT scan of the cervical spine performed on 26 May 2011 was reported to show marked osteoarthritis of the right C2/3 facet joint. The C5/6 disc space was diminished with osteophyte formation and mild para lateral facet joint arthritis. Mild osteoarthritis in the left C6/7 and mild C7/T1 facet joint arthritis were reported.
An MRI of the full spine performed on 15 July 2011 was reported to show mild cervical spondylitic change with no evidence of significant central canal narrowing or nerve root impingement.
Dr Khan’s examination of the cervical spine revealed the neck to be short. The applicant pointed to the posterior cervical muscles and left trapezius as the site of pain. Limited range of motion was recorded.
Dr Khan made a diagnosis of cervicothoracic pain with aggravation of cervicothoracic spondylosis. Dr Khan made no assessment of permanent impairment of the neck despite finding permanent impairment or loss at the back, legs and arms and loss of sexual function and bowel function.
In a report of 14 November 2018, Dr Khan took the same history of injuries to the back and left arm with pains radiating into the neck and both shoulders and arms. Dr Khan referred to a motor vehicle accident on 4 March 2015 with a further exacerbation of the neck and back treated conservatively. Dr Paul Teychenne, neurologist had in a report of 14 May 2016 assessed 29% WPI for the condition in the neck and back.
The applicant continued to report pains in the midline of the lower part of the neck radiating to both shoulders. The applicant pointed to the posterior midline and both trapezii as the site of pain with the left worse than the right.
Dr Khan diagnosed injury to the cervical spine causing aggravation of pre-existing cervicothoracic spondylosis.
Dr Khan made a WPI assessment which included an assessment of the cervical spine as DRE category II, finding a 5% WPI with no deduction for previous injury or pre-existing condition.
On 7 July 2020, Dr Khan prepared a short supplementary report addressing the causal connection between the cervical spine and the injury on 16 February 2000. Dr Khan stated:
“It is my opinion that there is a causal connection between your client’s condition of the cervical spine and your client’s accepted work injury suffered on 16 February 2000. It is my opinion that the injury to the cervical spine arose initially as a result of the event on 16 February thousand and has been exacerbated and accelerated as a consequence of injuries your client suffered to his back and upper limbs (shoulders) on 16 February 2000.”

Dr Truskett

Surgeon, Dr Phil Truskett, prepared a medicolegal report for the respondent on 31 May 2019.
At the commencement of his report, Dr Truskett indicated that he had reviewed various reports of Dr Manohar amongst a range of other evidence. In the body of the report, Dr Truskett made specific reference to a report of Dr Manohar dated 29 January 2001 in which the applicant described lumbar region pain only. Dr Truskett said there was no evidence of complaint of neck pain, bilateral shoulder pain or bilateral knee pain.
Dr Truskett took a history of the incident including that the applicant fell backwards onto his left side.
In April 2001, the applicant was involved in a motor vehicle accident when his vehicle was struck from behind by another vehicle. This caused an exacerbation of back pain.
The applicant had a further motor vehicle accident on 4 March 2004 when another vehicle backed into his stationary vehicle. The applicant reported that this exacerbated his back pain, shoulder and neck pain.
Dr Truskett reported that the applicant’s current symptoms related to his back, neck, both shoulders and both knees. In relation to the neck, Dr Truskett stated:
“He has pain at the back of his neck. Pain is present all the time. He would score 5/10 most of the time where 10/10 is pain when most severe. Pain will exacerbate at least once a week to a score of 6/10. It is made worse by activity and improved by medication. Pain radiates to the top of his left shoulder to his trapezius. This is non-radicular.”
Dr Truskett revealed that on examining the applicant’s neck there was global reduction in neck movement although his neck movement seemed greater when observed during interview. When asked why this was so, the applicant responded that his neck had become more painful.
Dr Truskett made reference to an MRI of the cervical spine performed on 19 July 2011 which was reported to show very mild spondylitic changes at C5/6 and a large broad-based osteophyte with the right lateral prominence compressing the cord causing bilateral foraminal stenosis.
An MRI of the full spine performed on 15 July 2017 was reported to show no cervical spondylitic change with no evidence of central canal stenosis narrowing or nerve root compression.
Dr Truskett gave the opinion that there was “no convincing evidence that he had sustained a neck injury as a result of his work-related accident.”
Asked to comment on the report of Dr Khan dated 14 November 2018, Dr Truskett noted the report of neck pain as a result of the injury on 16 February 2000. Dr Truskett stated,
“There does not appear to be any substantive injury related to his neck and shoulders from contemporaneous records. He did describe lower back pain and injury to his left forearm which resolved. I therefore do not support the contention that he has sustained anything more than a soft tissue back injury a result of the injury on 16 February 2000 as described by the contemporaneous documentation.”

Applicant’s submissions

Mr Horan noted that the applicant had given a history of the injurious event in his written statements. In his first statement, the applicant gave a history that when he fell, he felt pain in his neck and left arm and lower back. The applicant was in severe pain and felt faint. The focus of treatment initially was with respect to the lower back region.
Mr Horan noted that on 21 March 2000 the applicant underwent a scan of the lower back and was referred to specialist Dr David Manohar. The lumbosacral region was the focus of Dr Manohar’s treatment. The other injuries, including the injury to the applicant’s neck, took a back seat. There were, however, consistent complaints of neck symptoms to Dr Manohar.
On 3 May 2000, Dr Manohar referred to pain in the lumbar region, extending to the flank and up into the interscapular region. Mr Horan submitted that within a reasonably contemporaneous period of time after a significant heavy fall causing a range of symptoms, this constituted a complaint of pain in the neck region.
On 26 July 2000, Dr Manohar noted that the applicant “still” had pain in the neck and back. Mr Horan submitted that the neck pain, which on the applicant’s evidence started at the time of the fall, was continuing and had been reported on two occasions as evidenced in Dr Manohar’s reports.
On 29 April 2002, Dr Manohar noted that the applicant’s pain at times extended to the neck.
Mr Horan conceded that the documentation presented to the insurance company did not make mention of the neck. Mr Horan submitted that this was explained by the fact that the more problematic area was the back. The applicant filled in the claim form without the assistance of a lawyer. The complaints to his specialist doctor were more relevant and probative than the omission in the claim form.
Mr Horan noted that the applicant attended a number of medical examinations within a couple of years of the accident.
In a medicolegal report dated 21 May 2002, Dr Taylor recorded that movements of the neck were somewhat stiff and uncomfortable, although the applicant appeared to have recovered from his neck pain. Mr Horan submitted that Dr Taylor’s report provided contemporaneous evidence of complaints of neck symptoms as well as a medicolegal opinion on causation.
Mr Horan observed that in his report of 16 May 2005, Dr Maniam made a diagnosis of a musculoligamentous strain of the cervical spine. There were no pre-existent problems in the cervical spine or the lumbar spine. Dr Maniam found there was a causal connection between the workplace injury and the cervical and lumbar spine conditions. Dr Maniam found that employment was a substantial contributing factor to those injuries
Mr Horan noted that Dr Patrick did not diagnose a cervical injury in his 2000 report. There was some mention of an examination of the cervical spine. A clear inference could be drawn that he was examining an injury to the cervical spine as well as injuries to the back and left arm. The real focus at that early point in time, however, was the lumbar and lumbosacral regions. The neck condition was of less focus.
Mr Horan submitted that there was plenty of evidence of a neck injury from the other reports to which he had referred.
Mr Horan noted that an MRI of the cervical spine was performed on 19 March 2009. From that time onwards, in the WorkCover certificates, injury management plans and treating documents there was consistent mention of the neck as one of the injured body parts.

Mr Horan submitted that the threshold for a referral to a Medical Assessor was not particularly great or onerous. The establishment of an injury resulting from the accident was sufficient. The applicant had provided evidence from doctors who had made diagnoses not just references to pain or other symptoms.

Mr Horan referred to the report of Dr Khan dated 7 July 2020. Dr Khan found an injury to cervical spine resulted from the event in 2000. Dr Khan made an assessment of WPI which included the cervical spine. The body parts assessed by Dr Khan should be referred to a Medical Assessor.

Respondent’s submissions

Ms Goodman observed that a claim form was completed by the applicant which did not refer to the neck. That was said to be an important document in the overall scheme of the case. It was the first reference to what was injured in the fall. The applicant described an injury to the hand and upper back, although the treatment initially focussed on the lower back. The applicant did not report symptoms in the neck until quite some time later.
Ms Goodman noted that no clinical notes from the applicant’s doctor at the time of the fall had been put before the Commission. The radiological investigations undertaken were of the back and arm. There was no mention whatsoever of the neck.
Ms Goodman noted the reference by Dr Manohar to pain extending up into the infrascapular region and the bottom of the shoulder blades. No mention at all was made of an injury to neck. Mr Manohar organised a bone scan at the time which was normal.
The applicant continued to see Dr Manohar without any reference to symptoms in the neck. On 3 May 2000, almost three months after the incident, Dr Manohar for the first time referred to the interscapular region exacerbated by bending. The pain had apparently moved from the infrascapular to the interscapular region by this time.
The applicant was seen by Dr Manohar on multiple occasions in May and July 2000 with no reference to cervical pain only the back. The first reference to the neck appeared in the report of 26 July 2000, five and half months after the injurious event. No indication was given of where the pain came from or when it started. This delay required explanation given the absence of mention of neck pain previously.
The applicant continued to be seen by Dr Manohar in October, November and December 2000 and on 8 January 2001 without reference to the cervical spine.
Ms Goodman noted that Dr Manohar prepared a report for the applicant’s solicitors on 7 September 2001 in relation to a previous claim. The report referred to a motor vehicle accident on 25 April 2001 said to have exacerbated lower back pain. Ms Goodman noted that no doctors’ reports or certificates in relation to the motor vehicle accident had been provided in these proceedings. Dr Manohar’s report made no mention of injury to the neck other than the reference to symptoms of neck pain on 26 July 2000. Dr Manohar did not specifically relate those symptoms to the injurious event on 16 February 2000.
In his report of 29 April 2002, Dr Manohar referred to pain extending to the neck at times but did not explain whether those symptoms were the result, for example, of direct injury or consequential condition.
Ms Goodman submitted that the first reference to neck symptoms occurred a long time after the injurious event. No doctor had said that the focus of treatment initially was on the back and only later turned to the symptoms in the neck. The only person who gave that explanation was the applicant’s counsel.
Ms Goodman described the 21 May 2002 report of Dr Taylor as inconsistent with the previous treating reports. Not even Dr Manohar had clearly stated that there was an injury to the neck on 16 February 2000. The applicant’s movements at the cervical spine were noted to be almost full.
Ms Goodman noted that Dr Patrick did not obtain history of injury to the neck. The only work-related injury was to the left upper limb and back. Dr Patrick saw the applicant within a year of the injury. Dr Taylor’s report came two years later. Dr Patrick’s report was more contemporaneous to the injurious event.
Ms Goodman noted that the applicant had undergone radiological investigations including bone scans. No problems with the cervical spine were identified.
Dr Jones made no reference to pain in the neck and made no significant findings on examination of the cervical spine. Dr Jones noted that the initial symptoms in the applicant’s arms had resolved. Dr Jones saw the applicant on 4 July 2000 which was relatively close in time to the injurious event and before the first complaint of neck pain recorded by Dr Manohar. Although Dr Jones saw the applicant for the insurer, he took a history and complaints which made no mention whatsoever of symptoms in the cervical spine.
Ms Goodman noted that Dr Mahony saw the applicant in July 2001. Once again there was no reference to the cervical spine. Dr Mahony recorded pain in numerous parts of the body and included detailed descriptions of symptoms but nothing in relation to the neck.
Dr Wilding saw the applicant on 31 July 2001 without taking any history of injury to the neck.
Dr Berry prepared a report for the applicant’s solicitors in which no history of injury to the cervical spine was obtained. Examination of the cervical spine was normal.
The first mention of the neck in the medicolegal reports appeared in the report of Dr Taylor.
No history of injury to the neck was recorded in Dr O’Keefe’s report of 9 March 2005.
Dr Pukanic’s report of 20 April 2005 took a history of injury which did not refer to the neck. The description of the applicant’s current symptoms also made no mention of the cervical spine. In his report of September 2007, Dr Pukanic recorded that the applicant “subsequently developed pain in cervical spine” but did not indicate that this was part of the initial injury. Dr Pukanic again referred to subsequent development of pain in the cervical spine and right shoulder in his report of 11 February 2008. Ms Goodman submitted that the history of the “subsequent development of pain” could not be the same as an “injury” on 16 February 2000 which was what was alleged in these proceedings. Ms Goodman submitted that none of the contemporaneous evidence implicated the cervical spine in the original injury.
Ms Goodman submitted that Dr Khan expressed his opinion based on an incorrect history and his report would be given little weight.

Ms Goodman noted that there were subsequent reports of a cervical spine injury but submitted that they were made too late to infer that there was an initial injury to the cervical spine.
Ms Goodman noted that Dr Pillemer had been qualified by the applicant’s solicitors to provide a report which included no reference at all to the cervical spine.
Ms Goodman noted that no records from the applicant’s physiotherapist, acupuncturist or osteopath had been provided to suggest treatment of the neck.

The applicant was awarded lump sum compensation by the Compensation Court for an injury to his lumbar spine only.

In his report of 13 December 2006, the applicant was examined with the assistance of an interpreter by Dr Pillemer. The applicant’s history was confirmed and again no reference was made to an injury to the cervical spine.
Ms Goodman noted that Dr Truskett reported that the applicant was involved in a motor vehicle accident in 2004 which exacerbated his neck pain.
A further motor vehicle accident occurred in 2011. Dr Grant’s certificates referred to a whiplash injury occurring in that event.
Dr Truskett noted that the applicant was observed to show greater movement at the neck during his interview than upon examination. Dr Truskett did not support the allegation of an injury to the cervical spine.

Ms Goodman submitted that the certificates issued by Dr Pukanic referring to the neck from May 2014 onwards, in no way constituted contemporaneous evidence. Ms Goodman submitted that the Commission would give the certificates no weight as Dr Pukanic did not start seeing the applicant until about 2005 and reported complaints appearing in the neck sometime after the injurious event.

Ms Goodman submitted that to the extent that there was evidence not put before the Commission, for example, from the applicant’s general practitioner, physiotherapist, acupuncturist or osteopath, a Jones v Dunkel inference should be drawn that those records would not assist the applicant’s case.

Ms Goodman submitted that Dr Taylor’s conclusion that there was an injury to the cervical spine in the incident would be regarded as an outlier. Dr Jones, Dr Patrick, Dr Wilding and Dr Berry all saw the applicant without any mention of problems in the cervical spine. The reference to symptoms in the cervical spine made by Dr Manohar on 26 July 2000, five months after the incident, contained no explanation as to how the symptoms related to the event on 16 February 2000. Although Dr Taylor assessed permanent impairment of the neck, a complying agreement was entered into in respect of a number body parts but not the neck.

Dr Khan was not initially asked to assess or explain the neck. There was a further motor vehicle accident on 4 March 2015 in respect of which Dr Teychenne made an assessment of the neck.

Ms Goodman noted that Dr Khan had provided an opinion that the applicant had aggravated pre-existing spondylosis in his neck but submitted that Dr Khan did not have an accurate history. Dr Khan did not go through the treating records and historical medicolegal reports. Dr Khan did not engage with the high whole person impairment assessment in respect of the 2015 motor vehicle accident.

Ms Goodman submitted that no real explanation of how the cervical spine was injured in the original incident was provided. Dr Khan did not explain how the pre-existing disease was exacerbated. No explanation was given of the absence of contemporaneous reports of symptoms. Ms Goodman submitted that Dr Khan’s opinion would not be accepted at all.

Ms Goodman noted that the applicant bore the onus of establishing injury. Having regard to the comments in Nguyen v Cosmopolitan Homes (NSW) Pty Limited[1], Ms Goodman submitted that the Commission would not feel an actual persuasion that the applicant had sustained an injury to the cervical spine on the evidence before it.

Applicant’s submissions in reply
[1] [2008] NSWCA 246.

Mr Horan submitted that the respondent’s submissions that no doctor had attempted to make a causal link between the neck and the 2000 incident glossed over the evidence of Dr Taylor and Dr Maniam.

Mr Horan noted that the reports in the pre-2006 period relied on by the respondent were medicolegal reports. Mr Horan submitted that there was a significant difference between a doctor saying there was no injury and an absence of reference to a body part in a report. The only doctors who expressed an opinion one way or another were Dr Taylor and Dr Maniam.

Mr Horan submitted that it was only a period of 2 ½ months from the time of the incident until symptoms were first reported to Dr Manohar.

Mr Horan noted that the list of documentation reviewed by Dr Truskett referred to reports of Dr Manohar but did not say how many reports he had or their dates. The review of documentation referred only to a report of 29 January 2001 which was not in evidence and not the earlier, more contemporaneous reports. Mr Horan submitted that the Commission would be concerned that Dr Truskett had placed weight on an absence of complaint to Dr Manohar which was inconsistent with the reports before the Commission. As a result, Mr Horan submitted that there would be a real question as to the reliability of Dr Truskett’s opinion. That report was the only direct or positive report on causation relied upon by the respondent.

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 relevantly 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:
(i)  a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration,
(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.”

No compensation is payable in respect of an injury under s 4(a) of the 1987 Act unless the employment concerned was a substantial contributing factor to the injury.
“9A No compensation payable unless employment substantial contributing factor to injury
(1)     No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2)     The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.”
There is little doubt that the applicant has, at the present time, a symptomatic condition at his cervical spine. Radiological investigations of the cervical spine dating from 2009 onwards are in evidence and demonstrate pathology at the cervical spine. The question requiring determination, however, is whether the applicant sustained an “injury” to his cervical spine in the course of employment on 16 February 2000.
There is no contemporaneous lay or medical evidence of an injury to the cervical spine on that date before me. The claim form made no mention of any injury or symptoms affecting the neck or cervical spine. No clinical records or reports from the applicant’s treating doctors on the date of injury or shortly after the accident are in evidence.
The first medical evidence of the injury appears in the report of Dr Manohar, dated 5 April 2000. On that occasion, the injury was, consistently with the claim form, reported to involve the left forearm and lumbosacral region only. The applicant’s symptoms at that stage involved pain in the lumbosacral region extending up into the infra scapular region. No reference was made to an injury at the cervical spine or any symptoms specifically at the cervical spine.
The applicant continued to consult Dr Manohar for several weeks without any indication being given in Dr Manohar’s reports of an injury or the experience of symptoms in the cervical spine.
The applicant has submitted that the reference to interscapular pain on 3 May 2000 is consistent with neck symptoms. Whilst I accept that the interscapular region sits adjacent to the cervical spine, I do not accept that the reference to pain “extending up into” that region constitutes clear evidence of symptoms originating at the cervical spine. Nothing in this report from Dr Manohar gives an indication of the cause of symptoms at that site. The report gives no indication that an injury to the cervical spine sustained in the fall on 16 February 2000 would account for the interscapular symptoms.
The first clear reference to “neck” symptoms appears in the report from Dr Manohar on 26 July 2000. On that occasion, Dr Manohar noted that the applicant was “still” experiencing neck pain. I accept that the use of the word “still” suggests that the symptoms had been experienced prior to 26 July 2000. There is not, however, any indication in the contemporaneous material as to when such symptoms began or their cause. Those symptoms could have commenced in the fall as subsequently alleged. Alternatively, they could have commenced before or sometime after the fall. The onset of the symptoms described by Dr Manohar in that report remains unclear.
Prior to this report from Dr Manohar, the applicant had been seen by Dr Jones for the insurer on 4 July 2000. On that occasion, Dr Jones took no history of injury to the neck in the fall. No symptoms in the neck were reported and Dr Jones’ examination of the neck revealed no findings of any significance.
Dr Manohar made no further reference to neck pain after 26 July 2000, despite regular consultations with the applicant, until his report of 29 April 2002. In the intervening period, the applicant was seen by four other medicolegal experts, Dr Patrick, Dr Mahony, Dr Wilding and Dr Berry, none of whom took any history of an injury to the cervical spine, noted any symptoms in the cervical spine or noted any significant findings on examination of the cervical spine.
Dr Patrick, who prepared a report for the applicant’s solicitors, took a detailed history of symptoms and disabilities resulting from the injurious event but made no mention of symptoms at the cervical spine. Dr Patrick undertook an examination of the cervical spine and recorded that the range of movement was reasonably full. The fact that this body part was examined is not sufficient, in my view, to demonstrate that an injury to the cervical spine was referred or reported to Dr Patrick.
Dr Mahony’s list of symptoms was similarly detailed. Dr Berry specifically recorded that his examination of the cervical spine was normal.
Whilst it might be expected that a medicolegal expert qualified by the insurer would limit his or her examination and findings to the body parts referred, it would ordinarily be expected that a medicolegal expert qualified by a worker’s solicitors would be asked to consider each body part injured in the event. The failure of Dr Patrick and Dr Berry to identify any history of injury or symptoms at the cervical spine is significant and weighs against the case sought to be made by the applicant.
Consistently with the medicolegal evidence, it is noted that the applicant did not include a claim in relation to the neck in his initial claim for lump sum compensation for permanent impairment resulting from the injury.
No radiological investigations of the cervical spine appear to have been performed until several years after the injurious event. There is no other evidence of any treatment or investigation of the cervical spine in the two years that followed the event.
A careful analysis of the evidence thus reveals that for a period of more than two years after the injurious event, there was no contemporaneous evidence of a neck injury or even neck symptoms other than the single, unexplained reference to neck pain on 26 July 2000 by Dr Manohar and the references to symptoms extending “up into” the infra scapular or interscapular regions adjacent to the cervical spine.
The value of contemporaneous evidence in considering whether an applicant has discharged his onus has been repeatedly endorsed by the courts: Watson v Foxman[2] and Onassis v Vergottis[3]. In the latter case, Lord Pearce commented upon what is often recollected and said by witnesses, many years 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."
[2] (1995) 49 NSWLR 315.
[3] (1968) 2 Lloyds Report 403.

In Department of Education and Training v Ireland[4] , Keating J 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.”
[4] [2008] NSWWCCPD 134.
The lack of contemporaneous evidence in this case is significant given the occurrence of a motor vehicle accident in 2001. Whilst there is no evidence of a specific injury to the cervical spine in that motor vehicle accident before me, there is evidence of an exacerbation of the applicant’s back pain in that event. No medical reports or certificates pertaining to that event are before me.
It is also relevant that the radiological investigations subsequently performed showed degenerative changes at the cervical spine. Those degenerative changes have been judged by Dr Khan to have been pre-existing at the date of the work injury.
In April 2002, Dr Manohar reported that the applicant complained of pain in the lumbar region and mid dorsal region extending at times to the neck. The applicant also reported difficulty rotating the neck especially to the right side.
The first evidence clearly relating symptoms in the neck to the injurious event on 16 February 2000 appears in the report of Dr Taylor dated 21 May 2002, more than two years after the event. Dr Taylor took a history of the applicant sustaining an injury to the neck in the fall. The applicant’s symptoms at the time of Dr Taylor’s examination were, however, limited to stiffness and some discomfort at the extremes of movement. Dr Taylor’s report suggested the applicant had “recovered” from his neck pain.
After the two references to neck symptoms in early 2002 by Dr Manohar and Dr Taylor, there is once again a significant gap in the evidence with regard to neck symptoms.
Dr Manohar and made no further reference to symptoms in the neck in his reports. The applicant’s new general practitioner, Dr Pukanic, reported no history of an injury to the neck or neck symptoms in his report for the insurer on 20 April 2005.
Dr Maniam did, in his June 2005 report to the applicant’s solicitors, take a history of injury to the cervical spine. The applicant reported ongoing symptoms of neck pain of mild intensity. Range of movement was satisfactory although there was vague tenderness in the lower cervical segment and at the limits of range of movement.
Dr Maniam’s report of ongoing symptoms of neck pain is difficult to reconcile with the previous treating and medicolegal evidence. It is also inconsistent with Dr Pukanic’s report on 6 September 2007 which described a “subsequent development of pain” in the cervical spine following the injurious event.
The applicant was, around this time, seen by further medicolegal experts including Dr O’Keefe and Dr Pillemer, neither of whom took a history of symptoms or injury to the cervical spine. Approved Medical Specialist, Dr Roger Rowe also took no history of symptoms or injury in the cervical spine.
From 2011 onwards, there is a more significant body of medical evidence dealing with the cervical spine. This is, however, explained by the certificates of capacity issued by Dr Grant in relation to a whiplash injury involving the neck in a further motor vehicle accident on 14 January 2011.
There is reference to other motor vehicle accidents in the medicolegal evidence from Dr Khan and Dr Truskett. Dr Khan referred to an exacerbation of neck pain in a motor vehicle accident on 4 March 2015, assessed by Dr Paul Teychenne as causing permanent impairment. There is also some mention of a 2014 motor vehicle accident exacerbating neck and back pains. Dr Truskett’s reports referred to a motor vehicle accident in March 2004.Whilst it is possible that there has been some error in the doctors’ transcriptions of the dates of these motor vehicle accidents, this is not a matter explained by the applicant’s evidence.
Other than the 2001 accident, the motor vehicle accidents and their impact upon the applicant’s cervical spine are not addressed in the applicant’s written evidence at all. Nor does the applicant’s evidence deal with the delayed reporting of symptoms in his cervical spine. No contemporaneous statements from the applicant are in evidence. The first statement from the applicant in evidence in these proceedings is dated 12 June 2017, some seventeen years after the event.
Clinical records from the applicant’s general practitioner at the time of the injurious event and other treating material, for example from the applicant’s osteopath or physiotherapist, has not been placed before the Commission. No explanation has been provided for the failure to place such evidence before the Commission.
The delay in reporting a cervical injury or cervical symptoms was sought to be explained in the applicant’s submissions at hearing by reference to the significant symptoms at the applicant’s lumbar spine. Whilst I am satisfied that the applicant was experiencing significant lumbar symptoms from the time of the accident onwards, the significant delay in reporting of cervical symptoms does, in my opinion, require some explanation from the applicant himself or from his medical practitioners.
Dr Khan’s medicolegal reports appear to adopt without question the history provided to him of symptoms in the cervical spine from the time of the injurious event. Dr Khan made a diagnosis of cervicothoracic pain with aggravation of pre-existing cervicothoracic spondylosis. Dr Khan gave no further explanation of the mechanism of injury or his basis for accepting a causal connection between the applicant’s condition as assessed by him and the event on 16 February 2000.
Dr Pukanic has in the WorkCover certificates of capacity issued by him after 2014 described an injury to the neck in the event on 16 February 2000. These certifications are not, however, explained by Dr Pukanic, in the context of his initial report which omitted any reference to an injury to the neck or neck symptoms in April 2005 and his references to a “subsequent development” of pain in the cervical spine in his reports prepared in 2007 and 2008.
Dr Truskett has found the absence of contemporaneous evidence of injury to be significant. Dr Truskett indicated that he had reviewed evidence that included various reports of Dr Manohar although he singled out a particular report on 29 January 2001. Dr Truskett gave the opinion that there was no convincing evidence that the applicant had sustained a neck injury as a result of the work accident. In particular there was no contemporaneous record of such an injury although the applicant did describe an injury to his lower back and left forearm.
It is the applicant who bears the onus of establishing on the balance of probabilities that he sustained an injury for the purposes of ss 4 and 9A to his cervical spine. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[5] 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.”
[5] [2008] NSWCA 246.

Having undertaken a careful analysis of the evidence before me, including all of the reports of Dr Manohar and the reports of Dr Taylor, Dr Maniam and Dr Khan, like Dr Truskett, I do not feel an actual persuasion of the existence of an injury to the cervical spine in the event on 16 February 2000.
Whilst there are a handful of references in the years that followed the event to neck symptoms, the first report of a neck injury appears more than two years after the event in a medicolegal report prepared at the request of the applicant’s solicitors. The delay in reporting an injury or symptoms at the cervical spine is not explained in the applicant’s evidence or in any of the medical evidence before me. The evidence suggests that there was a pre-existing degenerative condition at the cervical spine. Subsequent events, including the motor vehicle accidents described in the evidence as occurring in 2001, 2004, 2011, 2014 and 2015, could potentially account for the symptoms reported and assessed by Dr Taylor, Dr Maniam and Dr Khan. Although I accept that the applicant experienced concurrent symptoms of some severity at the lumbar spine, I am not satisfied that this adequately accounts for the absence of contemporaneous lay or medical evidence of injury or the delayed reporting of symptoms and injury. I am not satisfied that Dr Taylor, Dr Maniam or Dr Khan were provided with an accurate history of the onset of neck symptoms.
The applicant has not discharged his onus of establishing on the balance of probabilities that he sustained an injury to his cervical spine in the event on 16 February 2000.
There will be an award for the respondent in respect of the allegation of injury to the cervical spine on 16 February 2000.
As a result of the findings above, the referral to a Medical Assessor should be confined to the body parts which are not in dispute.

[2021] NSWPIC 399

7 October 2021