Mr Jones of counsel, instructed by Carroll and O'Dea Lawyers, appeared for the applicant, who was also present. The respondent was represented by Mr Saul of counsel, instructed by Leigh Virtue and Associates, a solicitor firm. 2. I am satisfied the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I endeavoured to bring the parties to the dispute to an acceptable settlement. The parties had sufficient opportunity to explore settlement. They were unable to reach an agreed resolution of the dispute.

1. The issues for determination by the Commission are whether the applicant:

(a) received a frank injury to her left ankle while at work on 6 November 2023, where employment was a substantial contributing factor and, if so;

(b) was incapacitated as a result of that injury for the relevant period and, if so;

(c) had pre-injury average weekly earnings in the amount claimed, and

(d) is entitled to medical expenses in relation to the injury.

1. The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD and attached documents;

(b) Reply lodged by the respondent and attachments (Reply);

(c) Application to Lodge Additional Documents submitted by the applicant on

13 February 2025 (ALAD-A), and

(d) Application to Lodge Additional Documents submitted by the respondent on

25 February 2025 (ALAD-R).

1. An objection by the respondent to documents contained in ALAD-A was heard and determined for the reasons given at the arbitration hearing, whereafter those were received into evidence.
2. The applicant sought leave to amend the ARD to revise the period claimed for weekly compensation to 12 February 2024 to 8 September 2024. The respondent made objection to the requested amendment which was heard and determined at the arbitration hearing. Leave was subsequently granted, and the ARD amended accordingly.
3. There was no application to call oral evidence or cross-examine any witness at the hearing.

1. As the threshold issue, the parties request the Commission determine whether the respondent is liable for the applicant's left ankle injury. The applicant contends work-related left ankle injury on the basis she received a frank injury at work on 6 November 2023 when she was "locking a room".
2. Section 4(a) of the Workers Compensation Act 1987 (the 1987 Act) is relevant and provides that an injury must have arisen out of, or occurred in, the course of employment for compensation to be available. Section 9A of the 1987 Act requires employment to also be a substantial contributing factor to a workplace injury.
3. The applicant bears the onus of establishing her case of workplace injury on the balance of probabilities with reference to s 4(a): Department of Education and Training v Ireland [2008] NSWCCPD 134. It is necessary for the applicant to demonstrate the evidence is sufficient to establish that she was injured at work and her employment was a substantial contributing factor to any injury.
4. An 'injury' refers to both the event and the pathology arising from it: Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422 (at 429). The Commission has consistently applied this meaning to injury: Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6.
5. The meaning of a personal injury was considered in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 (Kear), with Roche DP observing:

"The authorities establish that a 'personal injury' is 'a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state' (Gleeson CJ and Kirby J in [Petkoska Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286] at [39]). In other words, as stated at [81] in [North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 (Felstead)] it is "a sudden identifiable pathological change"

1. The applicant's primary contention is about a frank injury to her left ankle and so it must be determined whether there was a sudden and ascertainable or dramatic physiological change or disturbance in the state of the applicant's left ankle on 6 November 2023 when she was locking a room at work.
2. In her 16 March 2024 statement, the applicant recounts:[1]

"2. On 6 November 2023, at around 4:40PM, I injured my left ankle whilst locking a room, in the childcare centre by which I am employed.

3. I was turning to the right when I felt a twinge in my left ankle. When I got home, I applied an ice pack and rested. There was quite a lot of swelling around the ankle, and into the toes."

1. It seems the applicant did not mention the incident or injury to her treating general practitioner (GP), Dr Rezia Afroza, during a consultation on 9 November 2023. However, she did complain to the GP about left "foot pain laterally" at their next consult on

13 November 2023, that was recorded as being present for a "few months" with a reference to her working "in childcare" and querying whether plantar fasciitis may be the cause given there was "pain on walking". X-ray and ultrasound investigations were arranged.[2] That report to the GP was consistent with an earlier consultation of 16 September 2023, prior to alleged incident on 6 November 2023, when the applicant reported pain in her left foot to another GP at the clinic, Dr Partho Bose, who conducted an examination and recorded a "non tender left foot".[3] 2. The applicant later saw Dr David Norus, said to have been her "family GP for around 7 years" with whom she consults for "more serious concerns",[4] on 2 December 2023. Upon examination, Dr Norus recorded "mid foot / medially soft swilling" [presumably swelling], "not tender" and "no trauma", and he queried "bursitis". There was no reference to any

6 November 2023 workplace incident and it seems the applicant's concern at that time was for a different part of her foot. That is "mid foot" rather than her ankle.[5] 3. At the next consult on 9 December 2023, although Dr Norus recorded a "twisted ankle 3 weeks ago" that was "still painful", he did not make any workplace connection. An MRI scan was arranged to investigate the on-going complaint. It was not until a consultation on

14 December 2023, apparently with the benefit of MRI scan results, that Dr Norus referred to the applicant's ankle condition as having arisen from workplace injury on 6 November 2023.[6] 4. According to the 14 December 2023 MRI report of radiologist Dr Ramesh Cuganesan,[7] the applicant had a full-thickness tear of the anterior talofibular ligament and a partial thickness tear of the calcaneofibular ligament. The investigation did not however establish those tears arose from any incident on 6 November 2023. 5. The respondent qualified Dr Paul Hitchen, orthopaedic surgeon, who examined the applicant and he provided a report dated 27 February 2024. Dr Hitchen considered swelling or bruising would be apparent a week after an injury of the kind claimed by the applicant, but there were no such symptoms recorded by Dr Afroza on 13 November 2023 for the GP consultation of that date. Dr Hitchen opined:[8]

"The subsequent MRI of 14 [December] 2023 reports a tear of the [anterior talofibular ligament] and a probable old tear of the [calcaneofibular ligament]. There is no talar dome lesion and no reported bone marrow oedema. I would view this lack of oedema as significant, for commonly the amount of significant inversion force required to acutely tear the lateral ligament complex causes bone bruising or oedema to the talus and fibula, this lasting up to 4 months from the index injury."

1. Dr Hitchen concluded the applicant "did not sustain an acute tear of the lateral ligaments of the ankle on 6 November 2023". That finding is consistent with the applicant's own evidence of the event. That is, she did not describe any mechanism that could reasonably be said to have caused the injury, only a spontaneous "twinge" while moving in a routine manner.

Dr Hitchen also considered it "probable she had preexisting ankle pathology - that is an old complete tear of her lateral ankle ligaments", which would appear consistent with her earlier report of left foot pain to Dr Bose on 16 September 2023. 2. The applicant had consulted another GP, Dr Ahmed Maruid, on 9 November 2023, just three days after the alleged injury of 6 November 2023. There was no record of a report of ankle or foot injury on that occasion despite the applicant contending in her statement to have been self-treating the condition at the time. The next GP consultation was on 13 November 2023 with Dr Afroza, who made no reference to an injury at work, only foot pain for which an X-ray and ultrasound were arranged to investigate presumed plantar fasciitis. There were also GP consultations on 20, 23 and 27 November 2023 the notes for which make no mention of the applicant's left foot, which is remarkable given that by 28 November 2023 she claims to have had pain in her ankle "that was radiating into [her] calf".[9] 3. It was submitted that the applicant was resting her foot during the period she was absent from work due to a COVID-19 infection, which would have presumably been her priority during those later GP consultations. However, an overall review of clinical notes for the applicant makes plain that she was consistently forthright during medical consultations and raised whatever ailment troubled her at any given time. It appears to have been out of the ordinary, given her history of reporting, that a problem affecting the applicant's foot would not have been mentioned if it were causing problems to the extent claimed in her statement. That is, requiring analgesic medication, being variously described as "particularly bad" and "radiating" pain.[10] Yet there are multiple consultations where the left foot problem is not recorded, which it is reasonable to accept was because she did not raise it as a concern. 4. It appears that other than for the period when the applicant was away from work due to the COVID-19 infection, she continued duties as a childcare centre worker as normal for several weeks after 6 November 2023 with, as she asserts, relief provided by Panadol,[11] which does not seem consistent with the debilitating nature of the injury she says was present. It is also noted there is no documented evidence of a report to her employer of the claimed incident of 6 November 2023 after it happened or during the following weeks when she was at work. 5. Although in a conversation with her (presumed) manager, Jie Du, on 13 December 2023 the applicant said she "told Kate" (apparently a supervisor or other childcare worker) about twisting her ankle soon after it happened, there is no evidence that corroborates that alleged early report to "Kate". It also seems the applicant was unable to offer an explanation to

Ms Du about how the claimed ankle injury occurred but did say that it was not due to any workplace hazard.[12] The mid-December discussion with Ms Du is the earliest workplace report of the 6 November 2023 incident in evidence, although the applicant refers to 9 December 2023 reporting in her statement.[13] It may be the conversation she cites as having taken place on 9 December 2023 was that recorded by Ms Du as occurring on 13 December 2023. Although nothing pf significance turns on this discrepancy, I accept the file note prepared by Ms Du to more likely be correct given it was apparently prepared at the time. 6. Despite recounting to various medical practitioners that she had "twisted her ankle" (or similar) on 6 November 2023, there is no reference to that description of the event having happened in that way in her statement evidence. That evidence is otherwise silent on how the alleged injury occurred, the only reference being to a "twinge", which suggests a sudden localised discomfort of brief duration according to the ordinary meaning of that word. There is no explanation in the applicant's statement about what might have caused the "twinge" and no detail of injury was provided to Ms Du during their 13 December 2023 discussion. 7. It was argued for the applicant that immediately prior to the claimed incident on 6 November 2023 she may have been "tired" after "strenuous activities" in the workplace that day; such background being relevant to the "twinge" and presumably inferring she was therefore more prone to injury. However, as was correctly submitted by the respondent, there is no evidence of her physical state prior to the claimed incident, that is, she may have been weary or that fatigue may have in some way contributed. I do not intend to draw any such inference on assumptions in the absence of specific evidence to that effect on such a critical issue. 8. The applicant referred to Court of Appeal authority[14] about the approach to be taken with respect to reliance upon clinical notes. Several points should be made about the submission and the application of those authorities. In this instance the various clinical notes are generally uncontroversial and were not the subject of specific challenge. A record prepared by Dr Norus on 2 December 2023 contained an obvious error that was later corrected by him and is not the subject of dispute. The combination of the available clinical notes illustrates the nature and history of the applicant's consultations for treatment. There was no cogent reason articulated by the applicant for the notes to be disregarded, the substance of which was not disputed. The content of those notes, including the absence of references to matters that would reasonably be expected to have been recorded if they were raised, were prepared independently by several medical practitioners at various times for treatment purposes. In the circumstances, I consider the clinical records provide a reliable account of reporting and treatment events. While they deal with relevant issues concerning the treatment of clinical records evidence, the authorities referred to by the applicant relate to proceedings in another jurisdiction, where litigation is conducted in a different manner, and where notes were contested, which is not the position here. 9. The content of the numerous clinical records casts doubt on the applicant's claim as to her allegation of a left foot injury occurring on 6 November 2023. The sequence of events and consultations as contained in those records, and as given by the applicant in her statement, do not support a finding there was any sudden and ascertainable or dramatic physiological change or disturbance in the state of her left ankle on 6 November 2023. It is evident the applicant had left foot pain for "months" according to the note of Dr Afroza on 13 November 2023 and that is consistent with the 16 September 2023 note of Dr Bose, made well before the claimed event on 6 November 2023. Those records are in turn consistent with the considered opinion of Dr Hitchen about the applicant having "preexisting ankle pathology - that is an old complete tear of her lateral ankle ligaments". 10. While there may have been an event on 6 November 2023 in the nature of a "twinge", even if it did happen, I am not reasonably satisfied that incident resulted in a discrete injury. The evidence does not establish the incident that is said to have occurred on that date caused the applicant's left ankle condition. Her uncorroborated statement evidence is unconvincing given she visited GPs on several occasions over many weeks without the claimed incident being mentioned. Even if there were temporal evidence to substantiate the applicant's claim and an injury was accepted to have occurred, which it is not, on the basis of the circumstances described by the applicant in her statement, it would have been an event that merely arose in the course of employment without other work-related cause. It is therefore captured by s 9A(3) of the 1987 Act, with the effect that employment is not considered to be a substantial contributing factor. 11. The combined requirements of ss 4(a) and 9A of the Act for 'injury' comprise a threshold issue and as those have not been established by the applicant, the claim cannot proceed further. It is therefore unnecessary to consider the other issues in dispute between the parties given that threshold question of injury has not been proved.

1. I am not reasonably satisfied the incident relied upon by the applicant that is said to have occurred on 6 November 2023 caused her left ankle condition. This means there must be an award for the respondent.

[14] Mason v Demasi [2009] NSWCA 227 and Terminals Australia Ltd v Huseyin [2008] NSWCA 320.