Kim v Koen Pty Ltd [2026] NSWPIC 200

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Key takeaways

• Contemporaneous records are critical. In this case, the absence of complaints about the disputed injuries for approximately eight months after the incident was highly significant in undermining the worker's claim.
• A plausible mechanism of injury, and subsequent complaints, are not sufficient. Workers must prove on the balance of probabilities that the injuries were actually sustained as alleged.

Brief facts

The worker sustained injuries while moving a piano on 14 October 2022 when one of the wheels broke, causing the piano to fall. The worker alleged that the piano hit him as he attempted to stop the fall, pushing him backwards to the ground, before the piano fell onto his left foot.

The worker sustained fractures to his left foot and ankle, and then developed Chronic Regional Pain Syndrome (CRPS). He also alleged that he sustained injuries to his back, neck, left shoulder, knees, head and hip in the incident.

Liability for injuries to the left foot and ankle, including CRPS, was not in dispute. However, the insurer disputed injuries to the cervical spine, lumbar spine, left shoulder and right knee. The matter was referred to the PIC to determine the dispute.

It was the worker’s evidence that the piano fell, striking his left shoulder, arm and both his knees. He alleged the impact of the piano pushed him backwards causing him to fall with his head and left shoulder striking the floor and the piano landing on his left foot. He reported a loss of consciousness and that he subsequently noticed that his left upper limb and left knee were covered in blood. The worker was taken to hospital where he waited overnight, and was treated the following morning.

The respondent’s case was that there was no complaint about any body part other than the left foot and ankle for several months after the subject incident on 14 October 2022.

The worker alleged that he reported injuries to each of the claimed body parts in the emergency room, but treatment focused on his left foot as it was the most painful and severe injury at the time. The only report available from the hospital was a physiotherapist’s report. This report dealt exclusively with the left foot/ankle.

Judgment

Member Turner noted that the physiotherapist’s report was not a general clinical record which could be expected to record a comprehensive list of complaints and injuries. However, in subsequent conferences with his GP, the worker referred only to a fracture of his left foot, as well as some lower back tightness. He did not raise any other complaints.

This remained the case through to 17 May 2023, when the worker’s treaters noted his back and neck were also sore.

It was not until 5 June 2023, in a consultation with his lawyer present, that the worker reported pain in both feet and shoulders, his lower back, and his neck. In a GP consultation the following day, it was noted that the worker had raised the other injured body parts following consultation with his solicitors, who took a detailed history of the mechanism, and the worker’s complaints.

The worker consulted Dr Kim in July 2023, and reported that he had told his GP from the beginning of injuries affecting all body parts. Dr Kim contacted the worker’s physiotherapist to ‘clarify what is going on’. She agreed that the worker had ‘additional injuries’ and she had been treating him for free for injuries to his shoulder, neck and lower back, “which had developed secondary to his primary injury.”

Member Turner noted the worker’s case relied on the claimed injuries having been sustained on 14 October 2022, with the mechanism involving the piano falling. He noted that it was not until eight months after this incident that the controversial body parts were included. Member Turner was of the view that it was highly improbable that a treating doctor would fail to record complaints of injury, especially when the list of injuries was extensive and the event involved a loss of consciousness.

Furthermore, while the worker’s physiotherapist had been treating him for additional injuries, neither she nor the GP had recorded how these additional injuries were sustained.

Member Turner noted that the worker did not explain why it was not until directly following the meeting with his solicitors that he began to repeatedly raise, and ‘aggressively seek treatment’ in particular in respect to his shoulders, brain, pelvis. Member Turner believed these later injuries could be characterised as a “late ‘add-on’”.

Member Turner further noted that subsequent complaints in respect to the body parts in issue did not establish by default that he sustained injury to those body parts in the incident on 14 October 2022 especially in circumstances where there is an alternate explanation of consequential condition. He further noted that it was not sufficient to establish that the alleged mechanism of injury was capable of causing the alleged injuries. He noted the worker bore the onus of proving injury on the balance of probabilities. Member Turner believed the worker had failed to discharge that onus.

Member Turner therefore determined that the weight of the evidence did not support that the worker sustained injury to his cervical spine, lumbar spine, left shoulder and right knee on 14 October 2022.

Implications

The decision serves as a clear reminder of the evidentiary standard required in workers compensation claims. Claims that expand significantly following legal consultation, and without corresponding early clinical documentation, risk being characterised as late additions and will face heightened scrutiny. Respondents and insurers should carefully examine the chronology of medical records when determining liability for claimed injuries.