Weber v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Weber v Secretary, Department of Education [2025] NSWPIC 36
APPLICANT:	John Weber
RESPONDENT:	Secretary, Department of Education
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	7 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for proposed treatment for right carpel tunnel and right cubital releases; injury on 30 August 2020 lack of complaints concerning a right wrist injury until 2024; respondent disputed liability; Held – award for the respondent; the applicant had not discharged his onus of proof that he sustained an injury to the right wrist; Chanaa v Zarour considered; Nguyen v Cosmopolitan Homes (NSW) Pty Limited applied.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

John Weber, the applicant, commenced employment with the respondent, Secretary, Department of Education as a maintenance and handyperson on a full time basis in 2018. On 30 August 2020 he was removing two large truck wheels filled with concrete. He successfully manoeuvred the first wheel using a crow bar held in his right hand into a skip bin. He repeated this process with the second wheel but the wheel slipped, knocking into him, sending what he describes as a huge force through his right wrist and sending him flying backwards approximately 4m. He says he landed with a large amount of force on his back, and his knees and shoulders were bent at an awkward angle.
In these proceedings he seeks the costs in the sum of $1,785 for a right carpal and cubital tunnel releases as proposed by Dr Thorvaldson.
On 1 May 2024 the insurer acting on behalf of the respondent issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability for the proposed surgery relying on the lack of contemporaneous complaints of a wrist injury until 2024. Mr Weber’s solicitors on two occasions sought review of this declinature, forwarding reports from Drs Thorvaldson and Stephenson respectively. The insurer maintained its declinature in notices dated 21 June 2024 and
18 September 2024.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The matter proceeded in Arbitration Hearing on the MS Teams platform. Mr Adhikary, counsel, instructed by Mr Malai appeared for Mr Weber, who was present. Mr Andrew Davis, counsel, instructed by Mr Rhett Slocombe, solicitor, and Ms Zreika from the insurer represented the respondent.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents (ARD);
(b)    Reply and attached documents, and
(c)    Application to Lodge Additional Documents filed by the respondent on
4 December 2024, only pages 1-13. The balance of the documents are excluded on the basis they are irrelevant to the issues requiring determination.
The applicant’s counsel did object to me admitting pages 1 to 13 being the report of
Dr Machart dated 14 November 2024. His objection was twofold. He argued that the respondent had issued its dispute notice and two review notices and it was not appropriate, having declined liability, that they then arrange a medico- legal examination and report. This submission is diminished in my view because the applicant, when represented by his solicitors, agreed to attend the examination. Also, the insurer in its review decision notice dated 18 September 2024 refers to an appointment with Dr Machart being arranged for
14 November 2024.[1] This notice was issued in response to Mr Weber’s solicitors on
[1] ARD p 24.
4 September 2024 serving Dr Stephenson’s report dated 30 June 2024.
The second argument was that the applicant is prejudiced because Dr Machart expresses the opinion that he is,
“unable to link the arthritis in the wrist which is severe to the mechanism of the injury. If there was substantial injury to ligaments in the wrist, then this would be a painful condition which would not escape doctor’s attention for the 3 years when reported.
The supposition that the pain was masked by other symptoms is without foundation. He was not hospitalised. He saw a number of doctors including a number of specialists. There was plenty of opportunity to report pain which would have been substantial if there was a ligament rupture. The wrist arthritis is a constitutional condition which does not relate to the injury.”
Mr Adhikary submitted that the reference to not being hospitalised is incorrect. I consider this is a matter that goes to the weight I should afford the report rather than its admission. The argument by the doctor that there was plenty of opportunity to report the pain because
Mr Weber saw a number of specialists is one that was raised in the dispute notices and so cannot have taken the applicant by surprise and has been addressed by Mr Weber in his statement.
The fact that Dr Machart says injury to the ligaments would have been painful is not a new allegation because Dr Thorvaldson noted that Mr Weber presented with pain in his wrist. Also, it is not a new finding that Mr Weber has arthritis in the wrist. Dr Stephenson refers to Mr Weber having gross osteoarthritis and instability in the wrist and he explains the meaning of a SLAC wrist being “a distinctive degenerative wrist condition…it is frequently associated with severe fall on outstretched hand which would probably cause a fracture of the scaphoid bone which has gone onto non-union, and osteonecrosis causing ligament injury and hence a SLAC wrist.”
I find that any prejudice to the applicant is outweighed by the prejudice that would be occasioned to the respondent if the report was not admitted into evidence. Furthermore, the parties have the opportunity to make submissions about the weight I should afford to
Dr Machart’s report, just because I have admitted it into evidence does not mean I have found it to be determinative of the issue in dispute. Finally, I note the report was served about eight days before the arbitration hearing and I was not advised of any unsuccessful attempts by the applicant to deal with the report. Counsel certainly has had sufficient time to consider it.

Oral evidence

There was no oral evidence. Both counsel made oral submissions which have been recorded and a copy is available to the parties.

FINDINGS AND REASONS

Mr Adhikary submitted on behalf of the applicant that the sole basis of the dispute is whether or not there are contemporaneous records of complaints and that is an erroneous basis on which for the matter to be disputed. It was argued that there is no cogent medical evidence to contradict the applicant’s evidence. Counsel submitted that the legal test to be applied is the balance of probabilities and he relies on the case of Chanaa v Zarour[2] which he stated was authority for the proposition that in civil proceedings corroboration is not required. He submitted that in Mr Weber’s matter there is unchallenged corroboration of him and his wife. He argued that their statements are clear as to when he was experiencing symptoms in his right wrist and why no treatment sought. Counsel submitted that the only way their evidence can be discredited if they can be accused of lying, and they were not cross examined.
[2] [2011] NSWCA 199, (Chanaa).
Mr Adhikary submitted that any challenge to their statements is purely on hypothetical bases and so the respondent’s challenge ought to fail.
Chanaa was a case about a loan and the factual issue in dispute was to whom the loan was made. At [86] Cambell JA (with Bathurst CJ and Tobias JA agreeing) did state “However, in the civil law corroboration is not a technical term, or a legal requirement”. But Mr Adhikary did not quote the balance of that paragraph “the task of the judge is to decide on the basis of the whole evidence (denials and all), what he or she accepts. In doing that there is no requirement for the judge to accept the whole of the evidence of any one witness.”
Therefore, I do not accept the matter can be determined on the basis that the evidence from Mr Weber and his wife are supportive of each other, and are not challenged. I need to consider all of the evidence before the Commission.
It is common ground that there is no mention in the treating records that Mr Weber had any issue with his right wrist before 30 August 2020. It is also common ground that there is no record of him telling any treatment provider that he had symptoms in his right wrist or any injury to his right wrist until 2024.
Mr Weber’s various explanations for the delay in the treating practitioners referring to right wrist complaints need to be considered. One explanation is at [18] of his statement. He says since 1 September 2020 he has consulted his general practitioner Dr Usman Mohy-ud-din weekly to address his continual workplace injuries. He says he was feeling extremely shocked as a result of the enormous extent of his injuries, especially his knees “and as a result I did not prioritise my right wrist injury, despite feeling extensive pain in the area.” He adds “following my workplace injury, my every waking moment has been infiltrated by extreme pain in my wrist, back, knees and shoulders.”
Mr Weber also explains the delay in [19]:
“since 14 September 2020 I have consulted physiotherapist Ian Ho Jang at Greenhills physiotherapy in order to address my extreme pain and debilitating symptoms in my right wrist, both knees, back and shoulders. My wrist has been extremely painful for a long time, however I was attempting to deal with a large amount of injuries I suffered as the same time as my right wrist, leading me to overlook major treatment for my right wrist.”
At [26] he states,
“I always complained about my right wrist injury, even to my wife, but as aforementioned my focus was on my knees and shoulders due to their medical priority…my right wrist was very painful, but not intolerable like my other injured areas.”
At [27] he says:
“My right wrist initially felt like I had sprained it, however upon later imaging it was revealed I had completely tore a ligament in my right hand. Following my workplace injury, I had no medical experience, I was extremely distressed and constantly pained, as a result I hoped my right wrist injury would heal without intervention.”
Mr Weber in these accounts describes his wrist pain as “extensive”, “my every waking moment has been infiltrated by extreme pain in my wrist, back, knees and shoulders”, “extremely painful”, and “very painful but not intolerable”.
He says he did not prioritise his right wrist injury because of his other injuries. However, he also states he initially thought his wrist was sprained and he hoped it would get better without intervention. It does seem inconsistent that he says he attended physiotherapy in September 2020 “to address my extreme pain and debilitating symptoms in my right wrist, both knees, back and shoulders”. Also, it is odd that he then adds because of his other injuries that led him “to overlook major treatment for my wrist”. This begs the question what major treatment had been recommended to him.
Cathryn Weber, the wife of Mr Weber, has provided a statement dated 18 September 2024. She says on the date of injury he came home and complained about “pain to his knee, shoulder, back, spine, neck and right wrist as a result of the fall he had a work”. She says she recalls that he complained of wrist pain every day. She says following the injury he has been unable to vacuum and mop and if someone shook his hand he would be in a lot of pain for some time after. Mrs Weber says she has noticed since the injury he has not been able to use his right shoulder as well and his entire right upper limb has been hurting him.
This statement was made four years after the injury. I have difficulty in placing weight upon her assertions because it is inconsistent with the report from Mr Jang, physiotherapist.
The respondent relies on the report from Ian Ho Jang, Greenhills Physiotherapy, dated
[3] ARD p 60.
28 March 2024 addressed to Dr Mohy-ud-din which states in two places that Mr Weber presented with “new onset right wrist pain with osteoarthritis (OA) and a tear of the scapholunate ligament.”[3] I find considerable weight needs to be given to this report because Mr Jang had been treating Mr Weber for some time before this report and he has twice referred to the wrist pain as new pain.
I reject the applicant’s counsel’s submissions that the reference to “new onset of right wrist pain” means that the pain was new but the injury occurred in 2020. I find this interpretation of Mr Jang’s is not a credible thesis because of how Mr Jang has expressed himself, listing the problems and adding this as the final item.
The other aspect of Mrs Weber’s statement that seems inconsistent with the medical evidence is her assertion that since the accident her husband has not been able to use his right shoulder. However, it was not until 9 February 2022 when Mr Weber attended Dr Mohy-ud-din and complained of neck pain with radiculopathy on the right side that the right shoulder was mentioned. On examination the doctor found restricted right shoulder movements.[4]
[4] ARD pp310 and 311.
Earlier Mr Weber had been complaining about his left shoulder.
I need to carefully consider the evidence about what actually occurred on 30 August 2020. The following evidence has a history of the accident:
(a)    In his 2024 statement at [12] Mr Weber gives a very detailed account of what occurred on 30 August 2020. He was removing two large truck wheels filled with concrete by rolling them down onto trolleys where they were to be transported to a tractor that would lift the wheels into a skip bin. He describes successfully moving the first tyre using a crowbar in his right hand. He states that with the second wheel he lodged the crowbar into it with his right hand and when he moved the wheel with his right arm from the tractor to the skip, the wheel slipped, knocking into him “sending a huge force through my wrist and sending me flying backwards approximately 4 metres. I landed with a large force on my back. My knees and shoulder were bent at an awkward angle, causing significant injury to these areas, as well as my back and spine.”
(b)    Dr Mohy-ud-din records in his clinical notes on 1 September 2020 the following:
“Reports hurting his neck, left shoulder, lower back & both knees yesterday morning at work. Reports that he had a fall on his back on concrete when he attempted to roll over a heavy object with the help of a rod. Ended up having injuries to his neck, left shoulder, lower back & both knees. Does not think that he had any head injury, but says that he was literally shocked after the injury.”[5]
Under the heading examination the doctor records that the left shoulder had restricted movements but he was alright on the right side.
(c)    Dr Osborne relates a history of the incident that Mr Weber was using a heavy lever to try and move something, it gave way and flung him backwards. He landed heavily with immediate pain in both knees[6] There is no mention of a wrist injury.
(d)    Dr Kuru in report dated 17 June 2021 has the history “he fell backwards onto the concrete. He does not remember specifically hurting his head at the time but feels his symptoms have come on holding his head such that it didn’t strike the ground”.[7] There is no mention of a wrist injury.
(e)    Dr Harrington provided the insurer with a report dated 13 July 2023.[8] He has the history that Mr Weber was using a crowbar to guide a suspended tyre/wheel into a bin when the wheel dropped. He stumbled backwards about 3-4m before eventually falling over, landing heavily on concrete. He was not knocked out although he may have hit his head. He injured his back and neck as well as both knees and his right shoulder. He also noted that Mr Weber mows the lawn with a self-propelled mower at his own pace and that he enjoys working with his hands and tinkering in the shed, but nothing heavy. There is no history taken of a right wrist injury nor are complaints listed under “current complaints”.
[5] ARD p 264.
[6] ARD p 100.
[7] ARD p 167.
[8] ARD p 44.
I find it is significant that none of these early histories refer to any injury being sustained to the right wrist. They also do not refer to Mr Weber putting out his right hand to break the fall, and they refer to him falling backwards.
Mr Weber in his statement says that when the wheel slipped it sent a huge force through his right wrist and he went backwards. However, Dr Thorvaldson’s understanding of the mechanism of injury is not based upon this fact. In his report dated 22 April 2024 the doctor states that Mr Weber described he landed flat on his back, hit his head and had pain in the wrist and knees and he said this is when his symptoms started.[9] On that basis the doctor accepted that the fall caused the right wrist symptoms. He then advises:
“these symptoms can be caused by either a blow or fall onto the wrist, but also due to the progressive osteoarthritis change around the carpal tunnel bones.”
[9] ARD p 55.
Mr Weber has the onus of proof. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[10] 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.”
[10] [2008] NSWCA 246, (Nguyen).
I do not feel an actual persuasion that as a matter of fact that Mr Weber fell onto his right wrist. All the evidence is that he fell backwards. In addition, he has not provided evidence that he had a blow to the wrist. In his statement he says a strong force went through his wrist but this detail has not been given to any treatment provider, including to Dr Thorvaldson.
Dr Harrington did examine Mr Weber’s right wrist/hand and found effusion and slight swelling in the wrist and swelling of MCP joints of his fingers. He recommended that Mr Weber should have investigations for inflammatory arthritis. I find it is significant that Mr Weber did not tell Dr Harrington that he had injured his right wrist. I find it is more likely than not on the balance of probabilities that Mr Weber did not tell Dr Harrington that he injured his wrist in the fall because Dr Harrington has provided a very detailed and thorough report and I find if he had been told about such an injury he would have recorded it. Furthermore, Mr Weber does not assert that he told Dr Harrington about such an injury.
I find I cannot rely upon Dr Thorvaldson’s view that Mr Weber did injure his right wrist in the fall because he has not considered the precise mechanics of the fall. He states in his report dated 22 April 2024 that Mr Weber has two issues. One is the nerve compression at both the elbow and wrist and, the second, the progressive SLAC wrist. He says the SLAC wrist initially is caused by a tear of the scapholunate ligament which could have possibly occurred prior to his fall and it could have been progressing for several years or possibly even a decade prior to him becoming painful and symptomatic. Dr Thorvaldson adds that he believes that fall would have added some degree of exacerbation and pain and that this would have been a significant contributing factor. I regard this as inadequate reasoning in circumstances where there is no evidence of a blow to the wrist or falling on the wrist and where Dr Thorvaldson has not considered Mr Weber’s statement that he felt a force up his wrist.

I also remain concerned as to when Mr Weber felt pain in his wrist. Dr Thorvaldson has proceeded upon Mr Weber’s advice to him that he experienced pain immediately at the time of the fall. However, not only did Mr Weber not tell Dr Mohy-ud-din about his wrist being injured in his first consultation, he did not refer to his wrist in any subsequent consultation; noting that Mr Weber has only placed in evidence the doctor’s records to 27 March 2023 in his application.[11] Not only is there an absence of report of injury in these records as well as in those of Drs Osborne, Kuru and Salaria, there is the physiotherapist report of new onset of wrist pain in 2024. In addition there are references to Mr Weber using his right arm that seem inconsistent with a right wrist injury such as the following:
(a)    On 29 October 2020 Dr Mohy-ud-din records details of a case conference with
Mr Weber and the rehabilitation manager. He notes that Mr Weber says using the whipper snipper is the worst thing for him because it really shakes his whole back.[12] The respondent submits and I accept that is extraordinary that Mr Weber did not advise that he had a wrist injury because use of a whipper snipper would have involved use of his wrist.
(b)    After his right knee replacement on 20 August 2021 the operation report stated he was to “mobilise full weight bearing with crutches/frame”.[13] The same notation was made in the left knee replacement surgery operation report dated
30 November 2021.[14] In December 2021 Dr Osborne noted he was mobilising with a frame.[15] There is no mention of Mr Weber having difficulty to do this due to a wrist injury.
(c)    On 9 February 2022 since Dr Mohy-ud-din was examining his right upper limb it would have been an opportunity for Mr Weber to have also mentioned a right wrist injury.
(d)    Dr Mohy-ud-din has very comprehensive consultation notes. As an example
30 March 2022 is a case conference with Mr Weber and the rehabilitation provider.[16] The doctor records much detail about Mr Weber’s work capacity. I find it to be extraordinary that if Mr Weber had a right wrist injury he would not have mentioned it at such a time as it would have been relevant to his ability to perform work duties. Also, it is a year and a half since the work accident. If Mr Weber thought his wrist was only a sprain that would recover, it is remarkable that after such a length of time, if it was still painful every day, that he did not inform his doctor about it.
(e)    On 4 May 2022 Dr Mohy-ud-din says Mr Weber is happy to explore the possibility of driving disabled children.[17] Again, this raises the issue as to why Mr Weber did not mention a wrist injury which would have been relevant to a driving job.
[11] ARD p 337.
[12] ARD p 270.
[13] ARD p 127.
[14] ARD p 154.
[15][15] ARD pp162, 163.
[16] ARD p 314.
[17] ARD p 317.
It was submitted by the applicant’s counsel that Dr Stephenson has a correct history about the use of the crowbar. However, I disagree because in his report dated 30 June 2024 he just says that Mr Weber was using a crowbar. He does not refer to Mr Weber’s statement that he felt a huge force through his wrist. Dr Stephenson lists the documents he had been sent and Mr Weber’s statement is not included.
Dr Stephenson says a SLAC wrist in orthopaedic terms is a distinctive degenerative wrist condition characterised by progressive deformity, instability and arthritis affecting the radiocarpal and mid carpal joints. He says it affects the adjacent scaphoid and lunate bones on the radial side of the carpal bones, which were in two rows proximal and distal. He says it is frequently associated with severe fall on the outstretched hand which would probably cause a fracture of the scaphoid bine which has gone onto non-union and osteonecrosis causing ligamentous injury and hence a SLAC wrist.
However, as discussed previously I have found there is no evidence that Mr Weber fell onto his outstretched right hand. I find it is more likely than not on the balance of probabilities this did not occur because Mr Weber says he fell backwards and he does not say he fell onto his outstretched right hand.
In his supplementary report dated 5 August 2024 Dr Stephenson does in answer to question 2 refer to “the client’s statement attached”. Assuming this is the statement in the ARD,
Dr Stephenson does not acknowledge that Mr Weber did not say that he put out his right hand, outstretched in the fall. He does not deal with his evidence that he felt a huge force in his right wrist. He also seems unaware that there is a considerable delay in Mr Weber informing his doctors of any wrist injury or symptoms and that he did not even tell
Dr Harrington of it when he was examining his wrist. Because of these factors I find that I cannot place any reliance on the conclusion that Dr Stephenson reached about causation.
The respondent concedes that Mr Weber is a hard- working man but submits that not every problem he has involving arthritis is due to the fall. In addition to the matters referred to above, the respondent submits that Mr Weber told Dr Harrington that he enjoys tinkering with his hands. This was in 2023 and I accept this submission that it is inconsistent with Mr Weber having sustained a right wrist injury which his wife says was painful every day and he described as very painful.
The applicant has the onus of proof and even if I totally disregard Dr Machart’s opinion, I find he has not discharged his onus. Furthermore, the applicant has not placed before the Commission the records of Dr Mohy-ud-din relating to his first complaint to the doctor of right wrist pain. The respondent submitted that this must have been prior to the X-ray on
5 March 2024. I find this is a significant omission in a case where there is such a delay in reporting of an injury to the wrist and symptoms in the wrist.
In reply Mr Weber’s counsel submitted that the eggshell skull principle applies and repeated an earlier reference he made to Rail Services Australia v Dimovski.[18] In this matter the injury relied upon falls within s 4(a) of the Workers Compensation Act 1987. I have found that the applicant has not discharged his onus of proof to establish that he did in fact injure his wrist in the fall. If Mr Weber had pre-existing asymptomatic arthritis in his wrist I found he has not established that he injured it in the fall. Therefore, the concept of eggshell skull principle and in Dimovski do not assist the determination in this case.
[18] [2004] NSWCA 267 (Dimovski).
I find an award for the respondent.

[2025] NSWPIC 36

7 February 2025