Yahya v Tanks Services Pty Ltd (NSWPIC 2025)

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Key takeaways

Contemporaneous medical or factual evidence is paramount for a worker to successfully plead a new injured body part in respect of a previously reported and accepted injury. If there is a significant delay in the reporting of an injured body part, it may not be accepted.

Brief facts

The worker was employed by Tanks Services Pty Ltd and alleged that he had sustained an injury on 26 February 2020 to his lumbar spine.

There was no issue that the incident on 26 February 2020 occurred and a shoulder injury and cervical spine injury had been previously accepted as having occurred as a result of that incident. The employer however disputed that a lumbar spine injury had also been suffered on that date.

In dispute was whether the worker had suffered an injury to the lumbar spine in accordance with section 4 of the Workers Compensation Act 1987 (the Act), whether employment was a substantial contributing factor to the lumbar spine injury under section 9A of the Act, and whether claimed treatment was reasonably necessary under section 60 of the Act.

Decision

Member John Turner considered the clinical records, which showed that the first evidence of a complaint of lumbar spine pain was on 18 January 2022. The Member confirmed that the issues of causation had to be determined on the facts and through a common sense evaluation of the causal chain (in accordance with Kooragang Cement Pty Ltd v Bates).

It was also noted that the worker bore the onus of establishing that the injury had occurred on the balance of probabilities. The worker had indicated that he had experienced back pain since February 2020, with symptoms worsening after the incident at work on 26 February 2020.

There was no available evidence that the worker had reported the alleged injury to the lumbar spine to his GP prior to January 2022.

Member Turner (the Member) noted that it was not just the absence of reporting to the worker’s GP but there were multiple doctors, including shoulder and orthopaedic surgeons and rehabilitation providers who recorded no mention of any injury to the lumbar spine reported by the worker.

The Member similarly confirmed that the report of injury in February 2020 recorded only shoulder and neck pain.

The Member commented that:

...whilst the failure to report any injury to the lumbar spine to the shoulder surgeons may be understandable due to those doctors’ expertise and focus on the shoulder condition. The lack of any mention of any injury to the lumbar spine to Dr. Suttor is less understandable given Dr Suttor’s expertise and interest in the spine and whilst the applicant appears to have been referred to the doctor in respect to his cervical spine the doctor conducted an examination which appears to have included the lower back.

That the focus was on the injuries to the neck and shoulder does not explain the lack of any mention of injury to the lumbar spine in the rehabilitation reports of Pinnacle Rehab and the forensic report of Dr. Ho. Pinnacle Rehab had repeated contact with the applicant as well as having case conferences with the treating medical providers.

Member Turner rejected the evidence provided by both the worker’s independent doctor and treating spinal surgeon regarding the cause of the lumbar spine injury. The Member found that both doctors provided insufficient reasons for their opinions on causation, given the lack of reporting of a lower back injury until two years after the incident.

The independent medical report relied upon by the employer was preferred by the Member, who noted that the doctor’s finding that the failure to report any injury to the lumbar spine and the lack of any clinical records of complaints in respect of the lumbar spine was consistent with his view of the evidence.

The Member applied a commonsense evaluation and found that, on the available evidence and on the balance of probabilities, the worker had not sustained an injury to the lumbar spine on 26 February 2020 as alleged and had failed to discharge his onus of proving the alleged injury.

It followed that the Member did not accept that the medical expenses claimed were not reasonably necessary as a result of the alleged lumbar spine injury.

Implications

If contemporaneous medical or factual evidence does not corroborate the reporting of an injured body part linked to an existing accepted incident/claim for a significant period, then a Member may find that the body part was not injured as a result of that incident. This is particularly the case if a worker has consulted his treating practitioners concerning the accepted incident, with specialities relevant to the newly pleaded body part, and yet did not report an injury to that body part until much later.