Tsourvakas v Sodexo Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tsourvakas v Sodexo Australia Pty Ltd [2022] NSWPIC 195
APPLICANT:	Beverly Tsourvakas
RESPONDENT:	Sodexo Australia Pty Ltd
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	3 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Accepted claim for injury to left shoulder and consequential condition of right shoulder; claim to have also sustained injury to neck; claim for permanent impairment compensation pursuant to section 66 of the Workers Compensation Act 1987 in respect of 15% whole person impairment as a result of injury to left upper extremity; right upper extremity; and cervical spine; parties agreed that if applicant did not succeed on claim for injury to cervical spine, the medical dispute was not to be referred to a Medical Assessor, as her permanent impairment was not otherwise greater than 10%; lack of contemporaneous lay or medical evidence with respect to injury to cervical spine; first history of injury to cervical spine recorded by independent medical examiner four years after alleged injury; consideration of Nominal Defendant v Clancy; Davis v Council of the City of Wagga Wagga; and Nguyen v Cosmopolitan Homes; Held- No sense of actual persuasion that the applicant sustained injury to her cervical spine; award for the respondent with respect to the claim for injury to the cervical spine.
DETERMINATIONS MADE:	That there is an award for the respondent in respect of the claim for injury to the cervical spine.

STATEMENT OF REASONS

BACKGROUND

The applicant, Beverly Tsourvakas (Ms Tsourvakas) was employed by the respondent, Sodexo Australia Pty Ltd (Sodexo) as a kitchen hand.
On 26 April 2017, Ms Tsourvakas sustained an accepted injury to her left shoulder when she slipped and fell in an area that had recently been mopped. It is accepted that as a result of that injury, she has also developed a consequential condition of her right shoulder. She also claims to have sustained an injury to her neck.

The respondent provided its workers compensation insurer, QBE Insurance (Australia) Limited (QBE) with notification of the applicant’s injury on or about 27 April 2017. It stated that the injury occurred on 26 April 2017 due to “fall at work”. The applicant had a left shoulder injury and left breast contusion. The parts of her body affected were recorded as left shoulder and chest. I will refer to this document as the notification.
The applicant completed a Worker’s Injury Claim Form (the claim form) dated 2 May 2017. She stated that on 26 April 2017, she was clearing the dining room when she slipped on a wet floor and fell onto her left side, injuring her left elbow/arm and shoulder.
The respondent’s Employer Injury Claim Form is dated 2 May 2017. It recorded that the applicant was clearing the dining room tables when she slipped on a wet dining room floor that had recently been mopped. Her injuries were stated to be “left shoulder injury and left breast contusion”.
By letter dated 22 April 2022, the applicant’s solicitors made on her behalf a claim for permanent impairment compensation, pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act). The applicant claimed to have 15% permanent impairment as a result of injury on 26 April 2017 to her cervical spine, left upper extremity and right upper extremity.
On 23 July 2021, AAI Limited trading as GIO (GIO), which had assumed management of the claim, issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
GIO disputed that Ms Tsourvakas had sustained injury to her cervical spine; that her employment was a substantial contributing factor or the main contributing factor to the alleged injury; that she was entitled to either weekly benefits or payment of medical expenses; and that she was entitled to permanent impairment compensation, as her injury had not resulted in more than 10% permanent impairment. GIO conceded that the applicant has sustained a consequential condition of her right shoulder.
The applicant lodged an Application to Resolve a Dispute (the Application) on 8 February 2022. She claimed to have sustained injury to her neck, left shoulder and right shoulder on 26 April 2017. A claim was made for $34,690, in respect of 15% permanent impairment as a result of injury to her cervical spine, left upper extremity and right upper extremity.
The respondent lodged its Reply on 2 March 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the applicant sustained an injury to her cervical spine on 26 April 2017.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

The matter was listed for conciliation/arbitration hearing by telephone on 7 April 2022. Mr Carney of counsel, instructed by Mr Simpson, appeared for the applicant, who was present. Ms Warren of counsel appeared for the respondent, instructed by Ms Malone.
The Application was amended by consent to claim that the applicant has sustained a consequential condition of her right shoulder as a result of the injury to her left shoulder.
The parties agreed that, should the applicant not establish that she has sustained injury to her cervical spine, the dispute was not to be referred to a Medical Assessor, as the accepted injury/conditions have not resulted in greater than 10% permanent impairment.

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) the Application and attachments, and
(b) Reply and attachments.

Oral evidence

There was no application by either party to cross-examine any witness or call oral evidence.

FINDINGS AND REASONS

Evidence of the applicant, Beverly Tsourvakas

Ms Tsourvakas’s statement is dated 2 July 2022.
Ms Tsourvakas stated that she injured her neck and left shoulder on 26 April 2017. The injury occurred when she was doing a clean-up in the lunchroom, about half-way through the lunch period. The dining area had recently been mopped, and she slipped and fell, landing on her left side. She had pain in her head, neck, and left shoulder region. She was winded, but not unconscious.
The nursing staff assisted the applicant. She managed to get up and sat for a time, but noticed she had difficulty using her left arm. An incident report was completed. She was unable to complete her shift, went home and consulted her general practitioner (GP), Dr Govindarajan.
Dr Govindarajan referred the applicant to Dr Manish Gupta. He confirmed that she had a left rotator cuff tear and performed a surgical repair in May 2017.
Post-operatively, the applicant was in a sling and had physiotherapy to mobilise her shoulder. She made progress. Her shoulder had improved, but it was not a cure.
Ms Tsourvakas commenced a graded return to work, gradually upgrading to eight hours a day, three days a week. She was still having trouble. Due to the injury to her neck and shoulders, she ceased that work and resigned in April 2018.
Since sustaining the injury, the applicant had continued to have pain at the base of her neck, principally on the left side; pain and stiffness in both shoulders, worse on the left; and headaches from neck pain.

Medical evidence

Windsor Family Practice

The clinical records of the practice are in evidence.
Dr Senthil Govindarajan recorded on 27 April 2017 that the applicant’s reason for attendance was “left shoulder injury”. She “fell at work – slippery surface landed on her left wrist and shoulder”. She was having a lot of pain in her left shoulder. Dr Govindarajan recorded very restricted range of movement. The applicant was “tender in the shoulder too – but not much.” The examination of her wrist was normal. She was sent for X-ray and ultrasound of her left shoulder.
Dr Govindarajan referred the applicant to Dr Manish Gupta on 2 May 2017, noting that she had left shoulder pain after a fall at work.
There is no reference to injury to, or symptoms relating to, the applicant’s cervical spine during numerous workers compensation consultations in 2017, 2018 and 2019.
On 2 May 2019, Dr Laleh Janalizadeh recorded that the applicant had shoulder pain “possibly due to overuse for the other shoulder”. She would “talk to her insurance and possibly will have it under WC due to complication of other shoulder injury.”
On 5 July 2019, Dr Janalizadeh responded to a request from GIO for further information. She noted that the applicant reported discomfort and pain in her right shoulder on 30 April 2019. It was possible she was overusing it due to previous left shoulder injury. Dr Janalizadeh also commented on investigations of the right shoulder performed on 2 May 2019.
Dr Janalizadeh had recommended physio, steroid injections and EP (assumed to mean exercise physiology).
On 17 September 2019, Dr Janalizadeh recorded “left shoulder injury. No changes”. The applicant hadn’t heard from insurance regarding her right shoulder. She had mildly worse pain in both shoulders.
Dr Janalizadeh recorded on 17 October 2019 that the applicant was complaining of worse symptoms in her right shoulder. She was awaiting approval and management for her right shoulder.
On 20 February 2020, Dr Janalizadeh recorded having called the applicant’s case manager regarding her right shoulder pain and discomfort and possible consequent injury “after her left shoulder”. She explained that the applicant had had no treatment while she waited for the insurance company and had declined investigations or referrals.
There is a record on 5 March 2020 that the applicant had had MRI of her cervical spine and left shoulder. The report of that investigation is dated 2 March 2020 and addressed to Dr Gupta. I will refer to it below.
The last entry is dated 14 March 2020, when the applicant complained of left and right shoulder pain.
The applicant has been issued with numerous certificates of capacity (COCs) by the practice, dating from 28 April 2017 to 8 February 2022. There is no reference to injury to the applicant’s neck or cervical spine in any of the COCs. The consistent description of the injury is “Slippery wet surface, slipped at work, landed on left shoulder, left breast, left wrist/elbow and thigh”, with reference to the left shoulder surgery on 16 June 2017, and the right shoulder, later added.

Dr Manish Gupta – orthopaedic specialist

Dr Gupta reported to Dr Govindarajan on 4 May 2017. He recorded a history that the applicant sustained injury to her left shoulder in a fall at work.
Dr Gupta noted that the applicant had had a significant number of musculoskeletal and medical health issues recently and was in tears describing her most recent injury. The only complaints he recorded were to the left shoulder.
Dr Gupta performed arthroscopic repair of the applicant’s left shoulder on 16 June 2017. She continued to consult him after the surgery.
Dr Gupta reported on 5 October 2017 that the applicant was doing quite well. He hoped she would continue to improve with ongoing rehab and time. He discharged her from his care.
On 15 February 2020, Dr Janalizadeh referred the applicant to Dr Gupta, noting that from April 2019 she had been suffering right shoulder pain.
The report of MRI of the cervical spine and right shoulder dated 2 March 2020 appears to be the first investigation of the applicant’s cervical spine. Relevantly, the report concluded that there was mid-spine cervical spondylosis resulting in neural exit foraminal narrowing and nerve compression, particularly of the right C5 and bilateral C6 and C7 nerves.

O’Neill Physiotherapy

The applicant was treated at the practice following her left shoulder surgery.
There is no record in the practice’s clinical notes of complaints about, or treatment of, the applicant’s cervical spine.

Dr Con Kafataris – injury management consultant

Dr Kafataris was qualified by GIO and reported on 26 June 2018. He described the mechanism of injury as the applicant having injured her left shoulder when she slipped on a wet floor at work.
The applicant complained of persistent pain over the anterior aspect of the left shoulder into the left arm. It was aggravated by pushing or pulling, especially with abduction or forward flexion.
Dr Kafataris recorded a previous whiplash associated disorder in a motor vehicle accident. He concluded that Ms Tsourvakas had continuing pain, approximately 12 months post-surgery, to her left shoulder. The possibility of ongoing rotator cuff pathology existed, and this should be explored by specialist review and if necessary, repeat MRI.
Dr Kafataris did not record a history of injury to the cervical spine, or any complaints about the applicant’s cervical spine.

Dr Vijay Panjratan - orthopaedic surgeon

Dr Panjratan was qualified by GIO and reported on 7 January 2020.
Dr Panjratan referred to the “current issue” as pertaining to an additional diagnosis “of a right shoulder”.
The doctor recorded a history that on 26 April 2017, the applicant slipped and fell on her left side. She could not recall whether she fell on her outstretched left hand or on the point of her left shoulder.
The applicant was uncertain when the right shoulder symptoms developed but documented 1 May 2019 as the injury date. She started developing symptoms around April 2019 and had had left shoulder surgery on 16 June 2017.
Dr Panjratan recorded complaints relating to the left and right shoulders. He did not record any complaints relating to the applicant’s neck. He did examine her cervical spine. Movements were normal, with some discomfort on the right side of the neck with movements. The problem occurred if she turned too much towards the opposite side. Dr Panjratan did not record any investigations of the cervical spine.
Dr Panjratan diagnosed minor rotator cuff tear and bursitis of the right shoulder. He attributed the applicant’s right shoulder problems to a normal ageing process. He did not consider that it had developed as a result of the workplace injury.

Dr James Bodel – orthopaedic surgeon

Dr Bodel was qualified by the applicant and reported on 13 April 2021.
Dr Bodel recorded a history that on 26 April 2017, the applicant slipped and fell, landing on her left hand side. She had pain in the head, neck, and left shoulder girdle region. She was “winded” but not rendered unconscious.
Dr Bodel has referred to the applicant’s subsequent treatment and work history. He noted that her left shoulder steadily deteriorated over time, and she developed right shoulder girdle pain. She had further ultrasounds confirming persisting pathology in both shoulders. She had ceased work in December 2019, and there had been some improvement, but not resolution, of her shoulder symptoms.
The applicant complained of pain at the base of her neck, principally on the left side; pain and stiffness in both shoulders, worse on the left; waking from sleep if she rolled onto either shoulder; and aggravation of symptoms with pushing, pulling, lifting or using her arms overhead.
Dr Bodel had reviewed the documents provided. He reported that Dr Gupta’s treatment confirmed his diagnosis of left rotator cuff injury, which had been surgically repaired. The local doctors’ notes were consistent with ongoing management of the applicant’s injuries, including the left shoulder, right shoulder and cervical spine.

Dr Bodel referred to the applicant’s investigations, the COCs, and the applicant’s statement. He opined that she had suffered a left rotator cuff tear, a soft tissue injury to her neck (also described as an aggravation of underlying degenerative change) and a consequential injury [sic] to her right shoulder as a result of the incident on 26 April 2017. Her subsequent employment had caused a temporary aggravation of that pathology.
Dr Bodel assessed a combined permanent impairment of 15%.

Dr Stephen Rimmer – orthopaedic surgeon

Dr Rimmer was qualified by the respondent and reported on 24 June 2021.
Dr Rimmer recorded a history that the applicant slipped on a wet floor on 26 April 2017, landing on her left shoulder. This caused immediate pain with loss of range of motion.
Dr Rimmer has recorded the applicant’s subsequent treatment and employment. While she was working as a café assistant, she developed pain in her right shoulder in about April/May 2019, due to what she claimed as over-compensating.
The applicant complained of left shoulder discomfort and weakness and dull intermittent right shoulder pain, noticeable with above shoulder level activities.
Dr Rimmer examined the applicant’s cervical spine as well as her shoulders. He recorded no evidence of discomfort on examination of her cervical spine, or of cervicobrachial irritation.
Dr Rimmer diagnosed four years’ post-left rotator cuff repair and right shoulder impingement syndrome. He did not consider that the applicant had sustained injury to her cervical spine. He had asked her repeatedly whether this was the case, “and she categorically denied ever injuring her cervical spine.”
Giving the applicant “the benefit of the doubt”, Dr Rimmer accepted that she had developed a secondary condition to her right shoulder as a result of the accepted left shoulder injury. He assessed 0% permanent impairment, assessing both shoulders and the cervical spine.
The fundamental difference Dr Rimmer found between his assessment and that of Dr Bodel was that the applicant never injured her cervical spine; and she had a full range of motion in both shoulders, albeit with some discomfort.

Dr Ashish Malkan – consultant neurologist

Dr Malkan reported to Dr Janalizadeh on 23 April 2021.
Dr Malkan recorded a history that the applicant had slipped over “with face down”. She had apparent impact over the left shoulder and arm. She had been found to have rotator cuff injury and was operated on by Dr Gupta.
The applicant told Dr Malkan the pain was much better after surgery, although there was some restriction in range of movement. She also described intermittent tingling and numbness of the left forearm and wrist. She denied any obvious focal weakness. She had intermittent neck pain without radiation.
Dr Malkan opined that it appeared possible that the applicant had left carpal tunnel syndrome and medial antebrachial cutaneous nerve lesion. He recommended nerve conduction study of the left upper limb.

SUBMISSIONS

The parties’ submissions have been recorded and I will therefore summarise them only briefly.

Applicant

The applicant referred to her statement, conceding that the evidence about injury to her neck is brief. She submitted that she had substantial treatment, including surgery, to her left shoulder, which may be why her neck “played second fiddle”. She injured her left shoulder, so it may be assumed she injured her left side. The physiotherapist was pre-occupied with her left shoulder.
The applicant submitted that the first mention of her neck was in March 2020, when her right shoulder had become an issue, and she was sent for MRI. There is not a lot of commentary on that, which could be because it was requested by Dr Gupta. There is clear pathology of the neck, albeit of a degenerative type, which she submitted was capable of aggravation and was aggravated in the fall. This appears to be all the treatment material that relates to the cervical spine.
The applicant submitted that Dr Bodel obtained a slightly more detailed account of her pain after the accident. He concentrated mainly on her shoulders, but recorded complaints of pain at the base of her neck, on the left.

The applicant submitted that Dr Panjratan noted discomfort in her neck when he examined her. There must have been some problem in her neck that she mentioned to him. There is no doubt she had a sore neck. It is not something she invented. It was masked by her arm pain for a considerable period.
The applicant submitted that Dr Rimmer is at odds with Drs Bodel and Panjratan. He based his opinion on his clinical examination. She submitted that she has a condition in her neck that is related to the fall. There is a paucity of complaints at the time, due to her significant left shoulder injury, which were the focus of treatment and the clinical records at the time.
In reply to the respondent, the applicant submitted that if I accept that the fall caused the symptoms that are recorded and are the subject of Dr Bodel’s whole person impairment rating, it would be the main contributing factor to those symptoms.

Respondent

The respondent submitted that the applicant has the onus of establishing that she sustained injury to the cervical spine on 26 April 2017.
The respondent submitted that the applicant has given no evidence as to why there is no note of an injury to her neck in any treating records. She submitted that the pain in her neck was masked or overlaid by that in her shoulder, but has given no evidence about this, and there is no medical evidence to support it.
The respondent referred to the notification, conceding that we do not know who completed it, but submitting there is no reference to the applicant’s neck. There is also no reference to it in the claim form or Dr Govindarajan’s entry on 27 April 2017. The applicant complained of pain in both shoulders on 7 November 2018. The respondent asks why, if she was also complaining of neck pain, this was not recorded by the GP?
The respondent submitted that the only record of problems with the applicant’s neck is that of 5 March 2020. It submitted I would accept that there was no injury to the applicant’s neck in the fall.
The respondent referred to the records of those who have treated the applicant. Even the referral to Dr Gupta did not mention the applicant’s neck. It submitted that just because there was an MRI of the neck, it can’t be concluded that it was because of neck pain. It may have been to investigate whether the applicant’s shoulder problem was due to referred pain from her neck. The physiotherapist also made no mention of neck pain or injury.
The respondent also referred to the COCs. The only time they changed was to include reference to the right shoulder.
The respondent submitted that an inference cannot be drawn that because Dr Panjratan examined the applicant’s cervical spine, there was a report of injury. There is no history of injury to the neck in his report, and I may infer that he asked about other symptoms.
The respondent submitted that Dr Bodel did not address the lack of contemporary reporting of injury to the applicant’s neck. He has not expanded on his reasoning at all, which affects the weight to be given to his report. He did not address “main contributing factor”, given that he diagnosed an aggravation injury. We do not have a clear opinion or reference to any other competing factors. Dr Rimmer reported that the applicant categorically denied injuring her cervical spine.
The respondent submitted that there is no report of any injury to or pain in the neck to any contemporary doctors; no evidence to explain why it was not recorded by the GP; and no explanation of why it was not recorded in the notification or the claim form. There is no record of the applicant telling the physiotherapist, GP, specialists or independent medical examiners (IME’s) about an injury to her neck. Dr Rimmer asked her, and she said no.
The respondent submitted that, on the balance of probabilities I would not be satisfied that these practitioners were told about the injury to the applicant’s neck, and she complained to them, but they did not record it. I would not be satisfied that she sustained injury to her cervical spine or that the fall was the main contributing factor to an aggravation to her cervical spine.

SUMMARY

The sole issue in dispute is whether the applicant sustained injury to her cervical spine, in addition to the accepted injury and consequential condition, on 26 April 2017.
Neither the notification nor the claim form, which were completed relatively contemporaneously to the injury, refers to any injury to the applicant’s neck.
The notification was completed by Sarah Moran, injury management/HSEQ coordinator. I accept that the applicant had no control over what Ms Moran recorded. However, she apparently completed the claim form in her own hand, signed and dated it.
I have received little assistance from the applicant’s statement. She stated she fell on her left hand side and had pain in her head, neck, and left shoulder. She has provided no explanation of why she did not refer to her neck, or indeed her head, in the claim form, while referring to her left elbow/arm, as well as her shoulder. She has also not provided any possible explanation as to why Dr Govindarajan did not record any injury to her cervical spine at the initial consultation only one day after the fall. Dr Gupta saw her only about a week later, and also recorded no history of symptoms in her neck.
It was submitted on behalf of the applicant that the pain in her neck may have been masked by or “played second fiddle” to her significant shoulder injury. However, she has given no evidence to this effect, and none of the practitioners who has treated her has provided any evidence in support of this possibility. None of the IME’s who examined her, with the exception of Dr Bodel, obtained any history of injury to her neck. It appears unlikely that the symptoms would be masked for four years, with only Dr Bodel being told about them in 2021.
When the applicant complained to Dr Janalizadeh about symptoms in her right shoulder in May 2019, she was quick to suggest that it may be covered by workers compensation, arrange X-ray and ultrasound, and later added the diagnosis of “right shoulder pain and injury compensating the previous left shoulder injury” to the COCs. She also followed up the insurer about treatment. It seems unlikely that, if the applicant complained at any time before March 2020 of a neck injury, the doctor would not have acted in a similar manner.
I am of course conscious that cases such as Nominal Defendant v Clancy [2007] NSWCA 349 (Clancy) and Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 (Davis) advise caution when relying on clinical records.
In Clancy, Santow JA observed:
“While clinical notes, as McColl JA observes, may in common experience be the raw data on which diagnosis and opinions are based, it does not follow that they will be comprehensive … clinical notes are written in the course of a busy practice where the clinician is primarily there to observe and administer treatment. They should not be construed with the minute attention one might give a formal legal document. It is fair to say a report to another doctor [or a medico-legal report] is likely to have been written with more deliberate consideration than rough notes.” (at [54]-[55])
In that case, Santow JA did not consider that a detailed contemporaneous report should be treated as inaccurate because it did not find its counterpart in the notes.
Santow JA’s comments reflected the comments in Davis that “experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury” (at [35] per Mason P, Beazley and Tobias JJA agreeing).
However, in this matter I do not have evidence from the applicant’s treating practitioners that may have explained the lack of any record of injury to her neck.
Similarly, as I have noted, none of the IME’s, apart from Dr Bodel, recorded a history of injury to the applicant’s neck. Dr Kafataris actually discussed the applicant’s condition with Dr Govindarajan in the context of her return to work. I would have expected her GP to raise at that stage any restrictions that may be due to an injury to her neck. The only injury discussed was that to the left shoulder.
Dr Panjratan examined the applicant’s neck but recorded no history of injury. It would not be unusual to examine a patient ‘s neck if she was complaining of shoulder pain, particularly when there was no injury to the right shoulder and an explanation for the pain was being sought. He recorded pain on the right side of the neck, not the left. Dr Rimmer reported that the applicant denied any injury to her neck.
The applicant underwent MRI of her cervical spine in March 2020, but the report of the scan contains no history, and the GP’s clinical records shed no light on the reason for the investigation. It is just as likely that it related to the complaints of shoulder pain as to any complaint about the applicant’s neck.
I am therefore left with Dr Bodel’s evidence. He reported that the local doctors’ notes were consistent with ongoing management of the applicant’s injuries, including the left shoulder, right shoulder and cervical spine. That does not appear to me to be the case. I do not accept his conclusion that the applicant sustained injury to her neck on 26 April 2017. The overwhelming weight of the evidence is to the contrary.
In the matter of Nguyen v Cosmopolitan Homes[2008] NSWCA 246 (Nguyen), the Court of Appeal (McDougall J; McColl JA and Bell JA agreeing), said (at [48], referring to the decision of the High Court in Malec v JC Hutton Pty Limited[1990] HCA 20; (1990) 169 CLR 638):
“On analysis, I think, what their Honours said is not inconsistent with the requirement that the tribunal of fact be actually persuaded of the occurrence or existence of the fact before it can be found. On their Honours’ approach, what is required is a determination of the respective probabilities of the event’s having occurred or not occurred. There is nothing in that analysis to suggest that the determination in favour of probability of occurrence should not require some sense of actual persuasion.”
The Court of Appeal in Nguyen went on to say at [55]:
“The position may be summarised as follows:
(1)     A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)     Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)     Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4)     A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
For the reasons given above, I am not persuaded, on the balance of probabilities, that the applicant sustained injury to her cervical spine on 26 April 2017.
There will accordingly be an award for the respondent in respect of the claim for injury to the applicant’s cervical spine. The parties have agreed that in those circumstances, the dispute was not to be referred to a Medical Assessor, as the accepted injury/condition have not resulted in greater than 10% permanent impairment.
The orders are as set out in the Certificate of Determination.

[2022] NSWPIC 195

3 May 2022