1. The appeal is dismissed and the Certificate of Determination dated 16 July 2025 is confirmed.

WORKERS COMPENSATION - Sections 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 - finding of injury to the cervical spine - sufficiency of reasons

Cain v I&C Homes Pty Ltd [2025] NSWPIC 342

1. The appeal is from a Certificate of Determination dated 16 July 2025.
2. The respondent was employed by the appellant as a carpenter. His duties involved general construction work. He alleged that on 18 February 2023 he sustained an injury to the neck when he hit his head on some scaffolding.
3. The appellant denied the claim. The issues for determination before the Member were agreed to be:

(a) injury pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act);

(b) substantial contributing factor pursuant to s 9A of the 1987 Act, and

(c) notice of claim and notice of injury pursuant to ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

"1. The [respondent] failed to notify of his injury before he voluntarily left employment but he has satisfied s 254(2) of the Workplace Injury Management and Workers Compensation Act 1998.

1. The [respondent] failed to make a claim within six months after his injury occurred, but the failure was occasioned by ignorance, mistake or other reasonable cause.
2. The [respondent] suffered an injury in the course of his employment to his cervical spine on 18 February 2023.
3. Employment was a substantial contributing factor to that injury.
4. The [appellant] is to pay the [respondent] weekly compensation for the period 20 September 2024 to 23 November 2024 at the rate of $1,320 per week pursuant to s 36 of the Workers Compensation Act 1987.
5. The [appellant] is to pay the [respondent] weekly compensation pursuant to s 37 of the Workers Compensation Act 1987:

(a) for the period 24 November 2024 to 30 March 2025 at the rate of $1,112 per week, and

(b) for the period 1 April 2025 to date and continuing at the rate of $1,120 per week (represented an indexed PIAWE figure of $1,400).

1. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:

(a) Date of injury: 18 February 2023

(b) Body system/parts:

(i) cervical spine, and

(c) Method of assessment: whole person impairment.

1. The documents to be referred to the Medical Assessor are:

(a) the Application and attached documents;

(b) the Reply and attached documents;

(c) Application to Lodge Additional Documents, lodged by the [respondent] on 13 June 2025, and

(d) Application to Lodge Additional Documents, lodged by the [appellant] on 13 June 2025.

1. Liberty to apply in respect of the weekly compensation benefits."
2. The appeal challenges the finding of injury (Grounds 1 and 2) and the determination that the failure to notify in accordance with ss 254 and 261 should be excused (Ground 3).
3. For the reasons that follow, the appeal is dismissed and the Member's Certificate of Determination is confirmed.

1. The Member commenced by observing that the "crux" of the dispute between the parties was a factual issue, essentially whether or not the respondent had sustained injury on 18 February 2023.
2. The Member quoted from the respondent's statement as follows:

"I crouched down and walked to get some material when I knocked my head on a metal bar on a scaffold. My neck was jerked backwards, and I experienced immediate pain in my neck and on the right side of my body. I was quite dazed for the next 30 minutes and I saw stars. I took a seat whilst I gathered myself and returned to work once I felt good enough. My neck and right arm were still in pain."[1]

1. The Member said the respondent did not think the accident was serious. He did experience pain on occasion including pins and needles in the right hand and weakness.
2. On 24 July 2023 the respondent experienced a significant onset of pain and attended the Manning Base Hospital.
3. The respondent came to cervical decompression and fusion on 24 April 2024.
4. On 8 November 2023, the respondent fell off scaffolding whilst employed by Fez Build Pty Limited. In his statement in support of that claim the respondent said that he was "suffering from a spinal injury which was a result of an accident 12 months ago."
5. The respondent retained solicitors to pursue his claim against Fez Build Pty Limited. He mentioned "in passing" to those solicitors that he had had an injury on 18 February 2023. The solicitors undertook to pursue that claim for him.
6. The appellant relied on three statements:

(a) Ms Gray;

(b) Mr Letisi, and

(c) Mr Peters.

1. In addition to those statements the Member had access to a statement from Mr Genoni, a director of Fez Build Pty Limited, the employer with respect to the fall from the scaffolding on 8 November 2023.
2. The Member summarised the medical evidence which to a substantial extent is uncontroversial. Dr Edger, neurosurgeon retained by the respondent's solicitors, reported on 26 November 2024.
3. The Member quoted the following from that report:

"The symptoms began during the course of his work on 18th February 2023. Luke describes hitting the top of his head (he was wearing a hat) whilst working installing cladding on houses, employed by I and C Homes Pty Ltd. He bent forwards, hitting his head on a bench. He describes being dazed for around 30 minutes, but he did not lose consciousness. His neck was hyperextended, and he experienced immediate neck, and right upper and lower limb pain. He didn't say much, trying to avoid a workplace injury on his record, and the pain initially settled, but the[n] began to come and go for a while, with the recurrences being more frequent, severe, and lasting longer, and then came back and didn't go."[2]

1. The Member summarised the evidence of Dr Hyde Page, consultant orthopaedic surgeon, contained in a report dated 23 November 2023. This report was commissioned in the context of the 8 November 2023 incident.
2. Importantly, the Member quoted from the past history as recorded by Dr Hyde Page in the following terms:

"He did have a significant problem with his cervical spine and when he was working for GJ Gardner about year ago, he jarred his neck when he unknowingly walked into scaffolding while he was wearing a cap and hit his forehead on a couple of occasions. After this, he developed right sided neck pain going into his shoulder and arm. After he finished this work with GJ Gardner in April 2023, when the work dried up, he attended the Manning Base Hospital in about May 2023 and was investigated with CT scan and MRI scan of his cervical spine, before being seen by a Neurosurgeon [sic, orthopaedic surgeon] who visits Taree, Dr Bhisham Singh."[3]

1. "GJ Gardner" was a trading name of the appellant.
2. After quoting from the report of Dr Powell, orthopaedic surgeon retained by the appellant, the Member noted "Dr Powell agrees with the comments of Dr Hyde Page noting that the cervical spine was a pre-existing condition that was well established at the time of injury to the lower back."[4]
3. A further report commissioned by the appellant, by neurosurgeon Dr Kamat dated 23 September 2024, described the injury to the respondent as "hyperextension injury of his neck."[5]
4. The Member under the heading "Clinical and treating records" summarised the important parts of those records.
5. He said it was common ground that there was no immediate treatment obtained by Mr Cain, no report of injury, no attendance on any medical practitioner around the time the injury is said to have occurred. The first attendance is to the Emergency Department of Manning Base Hospital on 24 July 2023. At that time there was no reference to an injury occurring in February and the primary diagnosis was "cervical arthritis".[6]
6. The respondent thereafter attended his general practitioner and was referred to Dr Singh. In a report dated 2 August 2023 the general practitioner Dr Arreza made no reference to an event in February. The respondent did not initially attend Dr Singh and a further referral was given on 23 October 2023. Again there was no reference to the events of February 2023, the GP referred to "acute onset right shoulder and arm pain in July 2023".[7]
7. The Member quoted a clinical note from Dr Arreza's notes of 4 November 2023 referring to ongoing right arm weakness with "nil antecedent injury".
8. On 14 March 2024 Dr Arreza made the following note:

"asking for a work capacity certificate regarding the neck problem as requested by his lawyers

says it happened at work a while back but I don't have evidence to this claim unfortunately as I only saw him in August 2023 and he did not mention that the injury happened at work

he also unfortunately did not mention it in MBH ED when he consulted on 24 July 2023".[8]

1. The Member referred to a note from the physiotherapist dated 19 October 2023 which, as he observed, pre-dated the fall off the scaffolding and in which the respondent complained of intermittent right shoulder sharp pain. The clinical findings recorded were "[a]ll within the last 6 months". Under the heading "medical history" the physiotherapist recorded: "Has had head an neck trauma at walk [sic]". The Member observed that the reference could be a reference to the incident that Mr Cain said occurred on 18 February 2023.
2. After summarising the parties' submissions and under the heading "Findings and reasons", the Member dealt with his reasons for the determination in favour of the respondent.
3. He commenced by dealing with the complaints under ss 254 and 261 of the 1998 Act. He set out these two provisions in full.
4. The Member said:

"The [respondent] first lodged a claim for injury on 24 July 2024. This also represents the first notification of injury. The notice requirements are slightly different - injury must be notified as soon as possible after the injury happened and before the worker has voluntarily left employment, and a claim must be made within six months after the injury happened. Mr Cain has not notified in accordance with both provisions, but relies on the exception that this failure was occasioned by ignorance, mistake, absence from the state or other reasonable cause."[9]

1. The Member referred to the decision of Albury Real Estate Pty Limited v Rouse[10] which cited Garratt v Tooheys Limited[11] to the effect that "other reasonable cause" which led to the failure to claim was a mixture of fact, circumstance and motive "in the sense that the omission is reasonable in light of all of the circumstances [in which] the worker found themselves."[12]
2. The respondent's evidence was:

"I understand the workers compensation insurer has disputed my claim as I did not lodge it within 6 months of my injury. I was unaware that I was able to do this and would not have known if not for my solicitors. Should I have known, I would have lodged the claim as soon as possible and hopefully received treatment earlier as I now believe I will never return to my pre-injury self".[13]

1. The Member summarised the facts surrounding the s 254/261 issues as follows:

(a) the respondent suffered a significant blow to the head on 18 February 2023. This was not reported to anyone and there were no witnesses;

(b) Mr Cain was stunned by the force of the blow and needed to rest for around 30 minutes;

(c) the blow resulted in a whiplash type injury, but Mr Cain was able to return to work on the same day and continued in employment without significant restriction, although the pain would come and go from time to time;

(d) Mr Cain soldiered on in employment with the appellant until he voluntarily left that employment;

(e) symptoms in the neck and arms came to a head on 24 July 2023 when Mr Cain attended Manning Base Hospital;

(f) Mr Cain did not provide any history to the hospital of any work injury on that occasion;

(g) the symptoms and radiology were significantly serious to warrant referral to an orthopaedic surgeon;

(h) Mr Cain did not initially pursue that line of treatment as he thought his neck would improve through physiotherapy (partly at the recommendation of his neighbour, who is a physiotherapist);

(i) Mr Cain had a fall from scaffolding on 8 November 2023 when he suffered a significant low back injury and potentially a minor aggravation of his pre-existing neck condition;

(j) Mr Cain underwent treatment for that back injury, including physiotherapy, but the symptoms in his arm became more significant;

(k) he saw his present solicitors (at some point) about his back injury, where he mentioned his previous neck injury, and

(l) his solicitors provided him with some advice in respect of the neck injury and ultimately he made a claim for compensation and gave notice of injury on 24 July 2024.

"The relevant period for consideration is the period of 6 months for the making of a claim and the period until he left employment with the [appellant] for the notification of injury. Mr Cain must satisfy me that his failure to undertake those actions in that period (i.e. not looking at events after the 6 month period or after he voluntarily left employment) was due to ignorance, mistake, or other reasonable cause (putting aside absence from the State as it is not relevant here)."[14]

1. The facts and circumstances that the Member found relevant were:

(a) Mr Cain was able to return to duties on 18 February 2023 within half an hour and he did not think too much of the injuries, he just carried on with life. The Member thought this was consistent with Mr Cain's lack of attendance on his general practitioner. His first attendance at the Emergency Department of a hospital was due to an increase in pain and not some significant event;

(b) Mr Cain was a carpenter by trade and not aware of the type of damage a significant blow to his head could cause to his neck. He felt pain in the neck and arm. The Member thought that there was some medical confusion from Mr Cain's perspective about what exactly was happening. It was not until he finally saw Dr Singh that it became more apparent;

(c) Mr Cain was on the worksite by himself and this would have been "highly unusual" and in breach of the rules that there must be two employees on the worksite, and

(d) Mr Cain was not aware of and did not receive any advice as to the existence of workers compensation entitlements until his fall off the scaffolding in subsequent employment. The consequence of the blow in February of 2023 was not fully apparent to Mr Cain for some time (until at least July 2023 when he first attended Manning Base Hospital). In fact his failure to report any work-related injury at the time supports a conclusion that he was ignorant of any connection with his ongoing arm symptoms to something that occurred at work.

"Accordingly, I am satisfied that for the purposes of s 254 of the 1998 Act, special circumstances exist, being ignorance and other reasonable cause, for the failure of Mr Cain to provide a notice of injury.

I am also satisfied, for the purpose of s 261, that the failure of Mr Cain to make a claim within six months was due to ignorance and other reasonable cause."[15]

1. Thereafter the Member considered the issue of injury. He said this:

"The [respondent's] case on injury centres on an event that he says occurred on 18 February 2023. There are some difficulties with the [respondent] proving his case on that basis, most notably being that there were no witnesses to the event that is said to have occurred on that occasion. There are further difficulties in that the [respondent] did not attend for any medical treatment for a reasonable period after that event, and not until after he ceased employment with the [appellant]. The above represent challenges but do not necessarily disentitle Mr Cain from compensation. He must prove his case on the balance of probabilities, but he has the onus to prove."[16]

1. The Member considered whether the respondent was at work on 18 February 2023. After noting Mr Peters' statement, the Member referred to Ms Gray who said she "checked the WHS records and he is the only one that signed in ... it was a Saturday when no supervisors were around." The Member concluded the respondent was at work on Saturday 18 February 2023.[17]
2. After quoting from the respondent's statement evidence and noting that there were discrepancies in the description of the incident and the histories given to the doctors, the Member concluded:

"There is a general degree of consistency among the reported histories, with some specific aspects consistent across all. All histories record the [respondent] hitting his head on something solid, and the medical causation opinions all record a hyperextension/whiplash component to the injury. Where the histories differ is in what Mr Cain was doing at the time of the blow to his head (sometimes walking, sometimes reaching down) and what he struck (a beam, part of a scaffold, or a bench).

I view these inconsistencies in context as largely minor. There is a clear history of something occurring that could involve an injurious event - Mr Cain struck his head with significant force, causing damage to his neck."[18]

1. After referring to the caution required when considering clinical records, the Member said:

"In the context of having coped for a period with his symptoms, it makes sense that he may not have reported a specific incident that occurred in February to the intake team at the hospital."[19]

"I do not accept the [appellant's] submission that what occurred in July 2023 was purely a degenerative issue. That does not appear in any of the medical opinions. I prefer Mr Cain's explanation that he had been coping with his symptoms until he was no longer able to cope until July 2023."[20]

1. After referring to the fact that there was no report of injury in February of 2023, the Member said:

"... I must determine this case on the balance of probabilities. Whilst there is an element of reconstruction to the [respondent's] case, this is necessitated by what appears to have been quite an insidious injury, with effects that were not immediately apparent to Mr Cain. Having considered the histories Mr Cain gave, I take him to be a credible person. This did not strike me as a reconstruction in an attempt to game the system to obtain a compensatory benefit. It struck me as a medical construction, in the context of an event that did not initially seem to be of great consequence, that over time became more and more significant to the [respondent]."[21]

1. The Member rejected the appellant's submission that the intervening accident (8 November 2023) caused a novus actus. The Member said that he did not regard Dr Hyde Page's opinion as rising to a novus actus.[22]
2. A report of Dr Singh dated 6 November 2023, which recorded that the arm pain with pins and needles had improved completely, contained the following:

"While he does not have any pain in the arm and the hands anymore, and the pins and needles have disappeared, he is left with weakness and wasting of the right upper limb.

Examination is positive for wasting of the biceps and triceps and the forearm muscles. There is certainly weakness of the biceps and the triceps on the right side, and he tells me that he has difficulty holding a nail gun above his head."[23]

1. The Member said that he did not take that report as an opinion that the respondent's injury had resolved just days before the fall. He said that the clinical record of that date (6 November 2023) supported that Mr Cain presented with on-going issues even if his pain was not a major concern.[24]
2. The Member concluded:

"Mr Cain must prove his case on the balance of probabilities. Whilst there are some minor inconsistencies in the description of the mechanism of injury, and there has been a delay in connecting the symptoms in his neck and arms to the injurious event, I am satisfied that he has proved his case. He was at work on 18 February 2023. He hit his head, causing a hyperextension/whiplash injury. That injury was intermittently symptomatic until July 2024, when the pain became too much for Mr Cain to handle. The injury required ongoing treatment until eventually he required surgery. The incident on 8 November 2023 did not break the causal chain.

Accordingly, I am satisfied that Mr Cain suffered an injury in the course of employment on 18 February 2023, to which employment was a substantial contributing factor. ..."[25]

1. The Member then directed that weekly compensation payments be made from 20 September 2024, giving leave to the parties to quantify the payment, and otherwise he remitted the matter to a Medical Assessor for assessment of the permanent impairment.

1. The respondent does not dispute that the appeal was filed within time.

1. The respondent agrees that the threshold set out in s 352(3) of the 1998 Act is satisfied.

1. The respondent and the appellant submit the matter is not an interlocutory decision and that leave is not required. I agree.

1. The parties agree that the matter can be disposed of without an oral hearing. I am satisfied the material and the submissions with which I have been provided are sufficient to enable me to determine the appeal on the papers. I propose to take that course.

1. The jurisdiction I exercise under s 352(5) of the 1998 Act is to correct error of law, fact or discretion. It is not a review. Nevertheless, if after making appropriate allowance for the advantages enjoyed by the Member I would reach a different conclusion on a question of fact, I should give effect to it.[26]
2. The appellant submits that in this matter no oral evidence was adduced and there is no reason why the Member would be seen to have any advantage over a Presidential member in making findings of fact.

Ground 1: The Member erred in fact in finding that the respondent sustained injury to his cervical spine on 18 February 2023.

Ground 2: The Member erred in law in failing to provide sufficient reasons for his finding that the respondent had sustained injury to his cervical spine on 18 February 2023.

Ground 3: The Member erred in law in limiting his consideration of the respondent's conduct relevant to the application of s 254(2) and s 261(4) of the 1998 Act.

Ground 1 - Error in fact in inferring that the respondent sustained injury to the cervical spine on 18 February 2023

1. The appellant refers to the clinical records from the Manning Base Hospital (24 July 2023) as the first occasion that the respondent sought treatment for his neck. The appellant makes the point that the clinical records of the Manning Base Hospital relating to this attendance make no reference to the respondent having reported any injury to his neck occurring in February of 2023 (a point accepted by the Member), but "not only was there no mention of neck injury occurring in February 2023, there is no history of any injury to the neck occurring at any time."[27]
2. The appellant submits that a critical finding made by the Member was that the respondent "in the context of having coped for a period with his symptoms" may not have reported the alleged injury to the intake team at the hospital. However, the appellant submits that the respondent's evidence has to be viewed in the context of other undisputed facts:

(a) Ms Gray outlined that the respondent worked Monday to Friday, "as he did not wish to work on Saturdays and that the Respondent was the only person at the job site. The alleged injury occurred on 18 February 2023, being a Saturday. The Member's comment of placing no weight on Ms Gray's statement was relevant only to parts of the statement in which Ms Gray refers to phone conversations and messages with other witnesses";

(b) no report was made to the appellant of the injury prior to the workers compensation claim being made nearly 18 months later;

(c) the respondent attended Dr Arreza for review on 2 August 2023 and made no reference to the alleged injury;

(d) Dr Arreza referred the respondent to Dr Singh, orthopaedic spine surgeon, on 23 October 2023 and made no reference to the alleged injury. The referral only mentioned an acute onset of right shoulder and arm pain in July 2023;

(e) on 4 November 2023 Dr Arreza's consultation notes record "nil antecedent injury";

(f) after sustaining a back injury on 8 November 2023, the respondent attended Manning Base Hospital that day but gave no history of a prior injury;

(g) the respondent attended Manning Base Hospital on 7 February 2024. Those records refer to right upper limb symptoms commencing in or around October 2023, and

(h) a Medical Certificate provided by Dr Arreza on 14 March 2024 referred to symptoms commencing in July 2023.

1. The appellant submits there are other undisputed facts relevant to the appropriate inference to be drawn, namely:

(a) the respondent attended physiotherapy treatment with Ms Hudson for initial consultation on 19 October 2023 and her report of 20 October 2023 did not make any reference to an injury to the neck and instead only recorded a background of severe right shoulder pain;

(b) the initial consultation report with Dr Singh on 6 November 2023 also made no reference to any neck injury;

(c) the respondent submitted a workers compensation claim form in relation to his injury of 8 November 2023. In answer to questions about pre-existing conditions or injuries, the respondent referred to neck and upper back pain but did not refer to any injury occurring in February 2023 as alleged.

"The above undisputed facts demonstrate that on every occasion prior to 24 July 2024, the Respondent failed to mention to any treating practitioner that he had sustained injury to his neck occurring on 18 February 2023. The Respondent also did not report any mechanism of injury to any treating practitioner similar to what he describes as having occurred on that occasion.

Accordingly, the inference drawn by the Member in justifying the absence of complaint by the Respondent to Manning Base Hospital regarding his alleged injury is 'glaringly improbable'. To the contrary, the compelling inference is that the Respondent, on this occasion, as with all occasions, made no mention of the injury because it did not occur."[28]

1. The appellant submits that the Member was not entitled to rely on the comment by the respondent's treating physiotherapist in the note of 19 October 2023, referred to at [34] of the reasons.
2. The appellant submits that to the extent the Member inferred that the clinical records of the Manning Base Hospital were incomplete and that as a result general caution was to be adopted, this was mere speculation and unsupported by the undisputed facts outlined above.
3. Additionally, the appellant submits that any inference adopted by the Member was not applied generally to all of the consultation records of all of the practitioners to account for the consistent lack of contemporaneous reporting. The appellant submits: "When one has regard to the totality of the evidence, or lack thereof, of contemporaneous reporting of the alleged injury, the only compelling inference is that the alleged injury did not occur."[29]

1. The respondent concedes that he did not seek treatment for the neck until 24 July 2023 at the Manning Base Hospital, that the Manning Base Hospital records make no reference to the respondent worker reporting an injury to his neck occurring in February 2023 and record no history of any injury to the neck occurring at any time.
2. Ms Gray conceded the respondent had attended the worksite on Saturday 18 February 2023, the WHS records confirm that the respondent was at the worksite albeit alone with no supervisors.
3. The respondent also concedes that no report was made to the appellant of the injury prior to the workers compensation claim being made 18 months later, and that Dr Arreza's note dated 2 August 2023 did not record the alleged injury. It is likewise conceded that the referral to Dr Singh of 23 October 2023 made no reference to the alleged injury, however, the respondent submits that "the referral also made mention to a CT scan showing 'High grade stenosis of the R C4-7' and shoulder and arm pain frequently stem from pathology in the cervical spine. The Respondent submits that the findings of the CT scan of the cervical spine are directly relevant to the site of the C5/6 decompression and C6/7 decompression and fusion performed by Professor Hansen on 23 April 2024."[30]
4. Dr Arreza's note is dated 14 November 2023 not 4 November 2023, and provides "nil antecedent injury".
5. The respondent concedes that when he attended the Manning Base Hospital on 8 November 2023, the hospital did not record any history of prior injury. The respondent submits that he was obviously consumed with the very recent injury.
6. The respondent submits that the appellant incompletely quotes the Manning Base Hospital record of 7 February 2024.
7. The respondent concedes that Dr Arreza's certificate of 14 March 2024 referred only to symptoms commencing in July 2023.
8. Ms Hudson's report of 20 October 2023 did not make specific reference to the alleged injury to the neck. But there is reference to the cervical spine MRI and to the shoulder ultrasound and the respondent submits that the arm and neck symptoms are often confused when pathology arises from the neck. Ms Hudson's query, "Do you think a nerve conduction study and referral to neurologist should be advised?" is indicative of the confusion as to the pathology causing the respondent's pain.
9. The respondent submits the appellant seeks to relitigate the issue of injury due to a lack of recording of the circumstances of injury in the treating records.
10. The respondent submits that the following evidence supports the finding of injury and demonstrates no error of fact:

(a) the respondent started working for his subsequent employer in March 2023 which was within a month of the injury of 18 February 2023;

(b) the respondent's statement at paragraph [8] is that "My manager was aware of the subject injury and I was performing lighter work than I was doing before the injury";

(c) Mr Genoni's statement dated 29 November 2023 confirms he was aware of the respondent's injury to the neck which limited the respondent's ability to perform his duties. The respondent's submissions quote Mr Genoni's statement;

(d) there is significant pathology in the CT scan of the cervical spine dated 24 July 2023;

(e) there is significant pathology in the MRI scan of the cervical spine dated 26 July 2023;

(f) there is no evidence of a pre-existing condition before 18 February 2023 nor an intervening event between 18 February 2023 and the scans of July 2023 to explain the evident pathology;

(g) the respondent's qualified medical report from Dr Edger of 26 November 2024 supports the alleged injury;

(h) the appellant's qualified medical report of Dr Powell supports the alleged injury, and

(i) the appellant's qualified medical report of Dr Kamit dated 23 September 2024 supports the alleged injury.

Respondent's submissions in response to the appellant's supplementary submissions as to Ground 1

1. The respondent submits that Member McAdam dealt with Dr Hyde Page's report in detail at paragraph [75] of the reasons and repeats paragraphs [27] to [30] of his submission that there is no error of fact.

1. The appellant submits that the respondent's reference to certain evidence as supportive of a finding of injury does not undermine the appellant's assertion that the Member fell into factual error in finding that such injury was sustained on 18 February 2023.
2. The appellant submits:

(a) the respondent did not give any evidence that his failure to report injury to the neck on 8 November 2023 was due to being consumed by the back injury that had taken place on the same day;

(b) Ms Hudson's clinical record of 19 October 2023 without more does not assist the respondent;

(c) the fact the respondent returned to work shortly after the alleged injury is also supportive of no injury having occurred on 18 February 2023;

(d) Mr Genoni's evidence does not assist the respondent. Mr Genoni's evidence only states the respondent disclosed previous health issues two weeks after the respondent commenced work with Fez Build Pty Limited. Whilst Mr Genoni provides some details as to what the previous health issues were, at no stage does Mr Genoni suggest it was related to a frank injury occurring on 18 February 2023, and

(e) the opinions of the medico-legal experts are only as good as the accuracy of the assumption on which those opinions are based. The experts assume the factual finding concerning the mechanism of injury and that injury did occur. Whether or not those events did or did not occur is not an issue that was or could have been addressed by the experts. Accordingly, the opinions of the medico-legal experts should not influence the factual issue of whether or not the injury occurred.

1. Both the appellant and the respondent seek to re-argue the case before the Member rather than identify and address any alleged error. Apart from the contention that the Member should not have found that the respondent sustained injury on 18 February 2023, the appellant does not identify error of fact to be corrected.
2. Furthermore, the appellant does not submit that the Member's finding at [98] of the reasons that the respondent was a "credible person" is wrong. If that finding stands, the conclusion that the respondent sustained injury to the neck in the manner described in the respondent's statement on 18 February 2023 is unchallenged.
3. Having considered the materials, I detect no error in the Member's conclusion as to injury with which I agree.
4. Furthermore, the Member's conclusion is supported by other matters and is neither glaringly improbable, much less contradicted by other undisputed evidence.
5. Firstly, Ms Gray says that the letter of offer outlines a process around which incidents and injuries are to be reported. She says there are detailed written policies and procedures regarding the reporting of workplace incidents and injuries. However, the letter of offer and the detailed written policies and procedures are not in evidence.
6. Secondly, Ms Gray says that the respondent would have been informed of the proper procedures for reporting workplace injuries to his superiors. But there is no evidence as to what was said by whom to the respondent, when it was said and what the response was. The respondent does not concede he knew of these procedures, indeed his uncontradicted evidence was that he did not.[31]
7. Thirdly, Ms Gray's evidence is that a search of the WHS record showed that Mr Cain had "signed in" on 18 February 2023. There is no information from the appellant as to what the respondent was doing on that occasion or as to whether or not he was paid for the work he did on that day. There is no information from the appellant confirming the assertion that the rule required two workers to be on site at all times and that Saturday work was to be avoided.
8. Fourthly, Mr Peters says that it was unusual to work on Saturdays and the workers were not supposed to work alone. There is no documentation to confirm that or that the respondent knew that was a rule. There is no evidence as to how access was to be gained to the site. There is no attempt to indicate that Mr Cain was disciplined, reprimanded or otherwise counselled in relation to what was said to be an unusual attendance at the site on the Saturday.
9. Fifthly, Mr Genoni was aware that Mr Cain had "previous heath issue" he said:

"There is no pre-employment medical assessment as I require all my subcontractors to have their own Income Protection insurance and Public Liability insurance. Luke never disclosed that he had previous health issues until about two weeks into subcontracting."[32]

1. Sixthly, given that the issue of injury was likely to turn on the worker's credit, I note that no application for leave to cross-examine was made.
2. Seventhly, the report of Dr Hyde Page dated 23 November 2023[33] contained a history of injury whilst employed by GJ Gardner. For the reasons that follow that history is likely to be reliable.
3. The report of Dr Hyde Page dated 23 November 2023 is of significance:

(a) It was commissioned by icare Insurance for the purpose of the claim against Fez Build Pty Limited.

(b) It was prepared independently of and likely before the respondent retained solicitors to act on his behalf in either claim.

(c) It is important that the respondent identified to Dr Hyde Page that he was injured whilst working for the nominated employer "GJ Gardner".

(d) Although the doctor records that the incident occurred about a year ago and this is not February of 2023, the respondent identifies his employer as the appellant.

(e) Further, the respondent is recorded as being employed by GJ Gardner until "the work dried up" which accords with Ms Gray's statement that "Luke was let go of in the end because the work was slowing down".[34]

(f) The doctor recorded an attendance at Manning Base Hospital in May of 2023 when the CT scan and MRI were performed. The attendance at Manning Base Hospital occurred in July of 2023 but this discrepancy is of no consequence.

1. Although there are some discrepancies, the apparently independent history obtained by Dr Hyde Page adds verisimilitude to the respondent's claim that he sustained injury on 18 February 2023.
2. The submissions in support of Ground 1 to the appeal do not identify error. The appellant's complaint is that the Member did not accept its case that the respondent did not sustain injury on 18 February 2023. That conclusion adverse to the appellant is not shown to be falsified by error.
3. Ground 1 of the appeal is dismissed.

Ground 2 - Error in law in failing to provide sufficient reasons

1. The appellant identifies the Member's reasons as to whether the injury of 18 February 2023 occurred to be at paragraphs [66]-[103].
2. The appellant submits:

"The totality of the Member's reasons do not properly dispose of the conflict between the parties. A critical assertion made by the Appellant at first instance was the fact that the Respondent had not made any contemporaneous report of his alleged injury. This was accepted by the Member. Other than providing some suggestion as to why the Respondent may not have reported the injury while at Manning Base Hospital in July 2023, the Member did not provide findings that disclose any reasons as to how the Respondent's repeated failure to report the injury formed part of his ultimate conclusion. Instead, the Member simply states that notwithstanding inconsistencies with the mechanism of injury and delays in connecting symptoms of the neck to the alleged injury, he was satisfied that an injury had occurred."[35]

1. The appellant refers to Fisher v Nonconformist Pty Limited[36] and to s 294 of the 1998 Act and r 78 of the Personal Injury Commission Rules 2021. Those provisions impose a duty on the Member to give a brief statement of reasons that, among other things, include a reasoning process that led the appropriate decision-maker to the conclusions made. Accordingly, having failed to outline any attempt to reconcile the inconsistent non-reporting of the injury by the respondent with the ultimate conclusion reached, the Member's reasons lack the necessary element of disclosing his reasoning process.

1. The respondent quotes Wang v The State of New South Wales[37] to the effect that failing to deal with a clearly articulated submission relying on established facts is a constructive failure to exercise jurisdiction and concluding with the proposition:

"The approach taken in the present case was to list every submission put on behalf of Mr Wang to which the primary judge did not refer in his judgment and to assert error on that basis. That reflects a wrong approach. The primary judge was not required to address every submission advanced during the course of the hearing: Soulemezis v Dudley Holdings Pty Limited (1987) 10 NSWLR 247 at 271."[38]

1. The respondent disputes that the Member failed to provide a basis for the determination and/or adequately engage with the appellant's submissions, and refers to his earlier submissions at paragraph [25] (which list the Member's findings in support of the determination of injury) to submit that the Member provided sufficient reasons.

1. The appellant submits that the respondent has not addressed in any detail the appellant's submissions with regard to Ground 2. The crux of the respondent's submission is that portions of the Member's reasons satisfy the Member's obligations to give reasons, however, the paragraphs do not disclose any reasoning process in which the Member properly reconciled the repeated failure by the respondent to report his injury with the ultimate decision made by the Member that a cervical spine injury occurred on 18 February 2023.

1. The appellant's complaint is that the Member allegedly did not engage with or provide an explanation for the respondent's failure to report an injury to the neck on 18 February 2023.
2. The appellant's submissions focus attention on the Member's statement of reasons at paragraphs [66] to [103] which appear under the heading "Injury and substantial contributing factor". But the Member considered the respondent's failure to report in paragraphs [60] to [63] in the context of his discussion surrounding ss 254 and 261 of the 1998 Act, and said that he found a number of facts and circumstances and motives relevant to the circumstance that the respondent had not made a claim or notification of injury as required by the legislation.
3. He identified four matters at [60]-[63] inclusive as relevant, which I have set out at [36] above.
4. In my view those matters provide the Member's reasons for his conclusion that the respondent had sustained an injury which he did not report on 18 February 2023. The appellant's focus is on paragraphs [66]-[103] but it is in paragraphs [60]-[63] the Member provides reasoning specifically directed to the respondent's failure to report.
5. He reaches the conclusion that the failure to give notice of injury or claim for compensation was on each occasion due to ignorance and other reasonable cause.
6. The Member's reasons are to be read as a whole and the path of reasoning with respect to this issue is apparent from paragraphs [60]-[63].
7. Ground 2 of the appeal is dismissed.

Ground 3 - The Member erred in law in limiting his consideration of the respondent's conduct relevant to the application of ss 254(2) and 261(4) of the 1998 Act

1. The appellant submits that the Member impermissibly limited the period in which he could assess the respondent's conduct in relation to the question of whether reasonable excuse for the failure to give notice of injury to make a claim had arisen.
2. At [58] of the reasons the Member expressly limited the period(s) during which he was to consider whether the respondent was ignorant or that his failure was occasioned by the reasonable cause. In relation to s 254 the Member limited his consideration to the respondent's conduct up to the time he had ceased working for the appellant and in relation to s 261 the Member limited his consideration of the respondent's conduct to what occurred prior to the expiration of the 6 month limitation period.
3. The appellant submits that this limitation was an erroneous application of both provisions as nowhere in either s 254 or s 261 do the provisions set out any limitation in relation to what conduct can or cannot be considered. The Member also did not rely on any authority for the proposition put forward at [58] of the reasons.
4. The appellant submits:

"Relevantly, on 23 November 2023, the Respondent attended a medico-legal examination with Dr Hyde Page in relation to his injury on 8 November 2023. By this time, the Respondent had consulted with his solicitors and on his evidence, had informed them of the alleged February 2023 neck injury. During the consultation with Dr Hyde Page, the Respondent reported the history of his alleged neck injury. Critically, it was accepted by the Member that the first notice of injury and first claim in respect of the alleged February 2023 injury occurred on 24 July 2024. No explanation was provided by the Respondent as to why, in circumstances where he had received legal advice and had knowledge of the alleged injury in November 2023, he delayed notifying anyone about his injury and delayed making a claim in relation to that alleged injury until 24 July 2024.

The Respondent's conduct in those circumstances ought to have weighed heavily against the finding that the Respondent's failures were occasioned by ignorance or other reasonable cause (noting that the 'other reasonable cause' relied on by the Member was not specified). Evidently the Member's self-imposed limitation, which meant he would not have considered events past August 2023, caused him to have no regard to this conduct."[39]

1. The respondent submits that the appellant has not submitted any counter authority to support its submission that the Member had committed an error of law in this regard. The respondent submits this ground must fail as the appellant has not identified any error of law. The respondent submits the Member has correctly provided reasons in granting leave under ss 254 and 261. As such there is no error of law.

1. The Member directed himself as to the statutory question for the purpose of s 254 and s 261 at [58] of the reasons:

"The relevant period for consideration is the period of 6 months for the making of a claim and the period until he left employment with the [appellant] for the notification of injury. Mr Cain must satisfy me that his failure to undertake those actions in that period (i.e. not looking at events after the 6 month period or after he voluntarily left employment) was due to ignorance, mistake, or other reasonable cause (putting aside absence from the State as it is not relevant here)."

1. The appellant does not complain about this formulation of the statutory test. The appellant's complaint is that the Member limited his consideration of relevant matters to the period of 6 months post injury or until the respondent left the appellant's employ. But the focus of the inquiry for the purpose of ss 254 and 261 is limited to the periods bounded by 6 months post injury and up to leaving the employ of the appellant, thereafter the respondent was required to satisfy the Commission of the matters for excuse.
2. The appellant's complaint appears to be that the respondent should have notified and made a claim for compensation as soon as he told his solicitors of the injury.
3. The evidence is that he instructed a solicitor at the end of November 2023.[40] There is nothing in s 254(3) or s 254 generally which says or implies that the time for giving notice having expired, the earlier notice is given thereafter the better. Plainly if reliance is placed on s 254(3)(a), the earlier notice is given the better the argument against prejudice is likely to be, but Mr Cain did not rely on s 254(3)(a), he relied on s 254(3)(b). In other words, the focus of attention of the Member was the failure to comply with the requirement that notice of injury be given before he voluntarily left the employment and within 6 months of the injury.
4. Likewise with s 261, the 6 month period expired; the 3 year period had not expired. The respondent relied on s 261(4). Making the claim for compensation on 24 July 2024 as opposed to making it in November 2023 was of no significance to the Member's consideration of s 261(4).
5. It might be noticed in passing that the solicitors for the respondent, having been informed of the injury, would need to make enquiries and conduct investigations before the injury could be regarded as of such significance as to permit a claim for compensation. Furthermore, Dr Murray Hyde Page's report was addressed to icare, not Mr Cain's solicitors.
6. No error of law is demonstrated in Ground 3. This ground of appeal is dismissed.

1. The appeal is dismissed and the Certificate of Determination dated 16 July 2025 is confirmed.

[1] Cain v I&C Homes Pty Ltd [2025] NSWPIC 342 (reasons), [8].

[10] [2006] NSWWCCPD 139 (Rouse).

[11] [1949] WCR 80.

[12] Reasons, [55], citing Rouse, [31].

[26] State of New South Wales v Culhana [2025] NSWCA 157, [91].

[28] Appellant's submissions, [14]-[15].

[32] Appellant's Application to Lodge Additional Document 13 June 2025, p 46, [8].

[33] Reply to Application to Resolve a Dispute (reply), p 1.

[36] [2024] NSWCA 32.

[37] [2019] NSWCA 263 (Wang).

[39] Appellant's submissions, [29]-[30].

[40] Application to Resolve a Dispute, p 2, [21].