Newitt v Combined Roofing Australia Pty Ltd (NSWPIC 2024)

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Key Takeaways
Without corroborating medical and factual evidence to support ongoing symptoms, a subsequent aggravation away from the workplace may be found to not be work related. This is particularly the case if the original work injury was not reported and there is no evidence to support the continuance of symptoms or treatment.

Brief Facts

The worker was employed as an operations manager performing roofing work. On 8 June 2018 the worker alleged that he suffered an injury to his back in the course of lifting heavy steel box cutters. The worker did not begin to experience pain until the following day and did not report the injury, stating that he had already been the subject of two formal warnings and believed his job was in jeopardy.

The worker had two days off work then returned to normal duties. He made no complaints at work to anyone and his pain improved.

The worker had suffered a prior back injury at age 15.

The worker sustained an incapacitating aggravation to his back injury on 4 July 2021 while at home.

The respondent pointed to various inconsistencies in the worker’s evidence as well as an IME report of Dr Stephen.

The Member was not persuaded that the worker’s incapacity subsequent to 2021 had any causal relationship with the 2018 injury at work. The Member was persuaded that there had been an injury at work on 8 June 2018 but that it had resolved by about 19 June 2018.

While the Member noted that the worker may have been wary of making a workers compensation claim, he nonetheless could have mentioned the work injury to his GP, which he did not. Similarly any concern regarding losing his job should have disappeared after the worker left his employment with the respondent, yet no claim was lodged at any time. The Member found that this was due to the injury having resolved.

The Member found that any medical treatment to the back prior to 2021 was not regular.

The clinical records in evidence from 2021 reported the worker’s only prior back injury as being 15 years prior, when the worker was much younger. Similarly, the reports relating to the 2021 incident included reference to the worker slipping over at home and later feeling pain while sitting on the couch.

The Member accepted the respondent’s IME report over that of the worker’s IME.

Implications

Solid IME evidence together with corroborating clinical records from treating practitioners are required to establish an effective defence against an allegations of injury and/or aggravations of injury. In the absence of corroborating treating evidence or if that evidence provides contrary information, it is possible to successfully dispute injury for an alleged aggravation occurring outside of the workplace.