1. There is no dispute Mr Gary Townsend (the applicant) sustained injuries when he fell off scaffolding on 4 February 2021 (incorrectly pleaded as 3 February 2021) whilst employed by Rice Construction Group (the respondent). The respondent's insurer accepted liability.
2. He now claims lump sum compensation with respect to a 17% whole person impairment (WPI) comprising 7% for the thoracic spine, 6% for the right upper extremity (shoulder) and 5% for the pelvis.
3. The respondent's insurer assessed the claim and declined to make an offer of settlement on the basis that its qualified opinion assessed impairment below threshold for the right shoulder and pelvis and considered the applicant had not sustained "injury" to the thoracic spine in the fall. The claim for thoracic injury was formally declined on this basis.
4. This dispute resulted in the Application to Resolve a Dispute (ARD) filed with the Personal Injury Commission (Commission).
5. The matter underwent the usual case management pathway proceeding to arbitration following conciliation impasse. Mr McEnaney of counsel instructed by Mr Kasturi represented the applicant. Ms Warren of counsel instructed by Mr McTackett represented the respondent. Mr Tanilon was the insurer representative. There was no cross examination of the applicant. The ARD, the Reply and submissions of counsel were considered in decision making.

1. The sole issue for determination is whether the applicant sustained an injury to his thoracic spine on 4 February 2021.
2. Parties agreed subject to findings, the matter was to be remitted to the President for referral to a Medical Assessor.

1. The law relevant to this application is found in the Workers Compensation Act 1987 (the 1987 Act).

1. As liability for injury to the pelvis and right shoulder has been accepted, in the interests of brevity, these reasons will focus on the evidence as it pertains to the thoracic spine only.

1. In his statement dated 17 July 2025,[1] the applicant nominates that prior to his accident on

3 February 2021 he was fit and healthy and had never suffered injury or experienced symptoms in his thoracic spine. 2. He recounts two accidents. The first was on 3 February 2021 (subject to this dispute) (but actually 4 February 2021). On that day he was on a construction site and drilling into a wall when a supporting plank on his scaffolding moved and caused him to fall 2m. He landed heavily on his right side which resulted in injury to the thoracic spine, right shoulder, pelvis and multiple rib fractures. He ultimately underwent right rotator cuff surgery in

August 2022. 3. He successfully returned to work but suffered another accident (not part of this claim) in April 2022. On that occasion he was electrocuted when his telehandler touched powerlines. He suffered significant injuries including a hematoma in the brain, severe burns as well as "fractures to the T7 and L4 and widening of the T6/7 and T7/8 facet joints." 4. The statement continues by informing that the ribs "repaired themselves" but the thoracic spine is sore with restriction in movement requiring alteration in activities of daily living. It has impeded his hobbies. Pain is now managed with medications. The injuries have significantly impacted his personal, social and work life.

1. The above statement is silent on treatment following the injury. Both counsels helpfully referred to the hospital notes and I was informed the applicant was initially transported by ambulance to the Tamworth Base Hospital and then to the John Hunter Hospital the following day.
2. The records confirm paramedics attended the accident site on 4 February 2021 and recorded[2] the mechanism of the fall. Pain was primarily reported to be in the right pelvic region behind the hip joint, the upper right flank region with significant bruising worsening on inspiration. There was also pain and bruising of the left knee and a laceration on the right elbow. A cervical collar was applied. Attempts to apply a pelvic binder were hindered due to diaphoresis (excessive sweating).
3. Paramedics transferring the applicant from the Tamworth Hospital to John Hunter Hospital recorded a fracture of the pubis rami and right rib area following a fall 3m of a ladder onto concrete.[3]
4. Clinical notes from the Tamworth Hospital[4] recorded the main complaints, as right side chest wall and hip pain. Early evaluation of the head, chest, abdomen, pelvis, right upper limb, left lower limb, thoraco lumbar spine were documented and it was reported "no midline or paramidline tenderness".[5]
5. Further notes by R Hume (Senior Resident Medical Officer) (SRMO) on the same day confirmed the applicant was sent for imaging of the right elbow and left knee, ribs and pelvis and specifically highlighted that rib fractures were not radiologically reported but "can be seen" and that the report will be "amended". The SRMO reported "no cervical or thoracolumbar spinal injury" and "no thoracic or intra abdominal injury".[6]
6. Later the same evening, the applicant was assessed by orthopaedic Registrar Alawattegama[7] who recorded the fall off the ladder with injuries identified as right superior and inferior pubic rami fractures, right sacral ala fracture and right ilium fracture with undisplaced 4th and 6th rib fractures. Neck pain was denied by the applicant and it was recorded that there was no "T/L spine bony tenderness".
7. Physiotherapy notes of the Tamworth Hospital refer to treatment predominantly to the right shoulder, ribs, hip/pelvis and left leg.[8]
8. John Hunter Hospital Discharge Referral dated 12 February 2021[9] refers to LCI pelvic ring injury with nondisplaced fractures of the right superior and inferior pubic rami and rib fractures. X-rays of the pelvis confirmed nondisplaced fractures. X-rays of the ribs confirmed minimally displaced fracture of the right 5th, 6th and 7th ribs.[10]
9. Clinical notes from MYGP Tamworth establish that the applicant has been a long-term patient of the clinic since at least 2018. Consultations regarding the 4 February 2021 injury commence on 9 March 2021. There is no complaint recorded relating to thoraco lumbar spine symptoms. Symptoms in the right shoulder are recorded initially on 21 April 2021 ("and not picked up before")[11] with pain in pelvis and ribs recorded at consultations prior. A certificate for pre-injury duties was issued on 11 February 2022.[12]

1. Dr Bodel has been qualified in relation to both accidents, each the subject of their own litigation. In his report dated 13 December 2023 following a face-to-face assessment for public liability proceedings arising from the second accident, he recorded the applicant suffered an electrocution injury which resulted in him being "thrown back"[13] from his machine on 24 April 2022 (not the injury the subject of these proceedings). He summarised the injuries as (unedited):

"• Electrical burns requiring plastic surgical repair.

• Wedge compression fracture of the T7 vertebral body with a 40% compression of the vertebral body.
• Anterior wedging of the T6 vertebral body up to 25% loss of the vertebral body height according to the medical record.
• Compression fracture of the L4 vertebral body with approximately 15% vertebral body height loss.
• The medical conclusion at Royal North Shore Hospital where he attended for treatment was that these were acute fractures at T7 and L4.
• The T6 fracture was thought to be 'chronic'."

1. Dr Bodel recorded the past injury in 2021 when the applicant:

"fell off a roof... he did have a fracture in the mid thoracic region...that is the old fracture which is referred to in the x-ray reports above."

1. Dr Bodel concluded the applicant suffered fractures of the T7 and L4 in the electrocution injury with ongoing pain and stiffness and considered him unfit for work. His examination findings revealed tenderness in the mid-thoracic region.
2. In his report dated 10 April 2024[14] completed after a telehealth assessment, (and for the purposes of this claim), he recorded following the fall from the scaffold the applicant reported pain in the back, pelvis, right shoulder and right side of the chest wall. He noted an X-ray dated 4 February 2021 revealing fractures of the T6, T7 and T8 vertebra with anterior wedging at those levels reported as "chronic" and that the degree of compression was not identified. Dr Bodel qualifies he did not see the investigation and so could not determine whether the fractures were "fresh or old" but confirmed the applicant did not recall any particular problem in the past.
3. Complaints in 2024 included pain in the inter scapular region of the thoracic spine and lower back. He diagnosed "probable wedge compression fractures in the mid thoracic region."

Dr Bodel reported "it is probable that he has had additional structural damage to the thoracic region in the subsequent electrocution." 4. As regards impairment he reported (unedited):

"The two fractures at T6 and T7 which are measured as 40% for the T6 and 25% in accordance with the WorkCover Guidelines are added which makes it a 65% wedge compression fracture which would place assessment those areas in the thoracic spine as DRE thoracic category IV rating. I believe that is in part due to the subsequent injury and I would estimate that it is likely that the description of the thoracic spine injury that occurred with the fall on 03 February 2021 would place him in the DRE thoracic category II rating with a 5% Whole Person Impairment....

He does however have an interference in activities of daily living because of the injury to the thoracic spine that occurred on 03 February 2021 and I would indicate a 2% loading in accordance with Item 4.34 and Item 4.35 on Page 28 of the Fourth Edition Guidelines giving a 7% Whole Person Impairment overall for the thoracic spine...

There is no indication clinically of any pre-existing abnormality or condition in those injuries prior to this injury that occurred on 03 February 2021 and no basis for a deduction for pre-existing impairment."[15]

1. A supplementary report dated 26 February 2025[16] was generated following review of additional evidence (not particularised) but which ultimately did not cause a change to the previously assessed whole person impairment. Specifically in regards to the thoracic spine, the report states (unedited):

"As I have indicated previously, I think it is unlikely that the spinal fractures are causally related to the event on 3 February 2021. I have based that assertion on the fact that although fractures were seen at the time of the injury in the mid-thoracic region, it was deemed that they were "old". They may have been an aggravation of those, but there does not appear to be any medical evidence that I can be absolutely certain about indicating that there were no fractures prior to that date of injury. The reporting of the films said that they were old and chronic and therefore not caused by the fall. I accept that it is a possibility that they were, but I cannot be absolutely certain that it is probable that they were....

I tend to agree with Dr Nair that the particular fractures at that level in the thoracic spine are not caused by work."[17]

1. A further supplementary report dated 21 March 2025 was generated in response to additional evidence (again not particularised) although it does appear that Dr Bodel inspected films of the thoracic spine. He again indicated that he saw no reason to alter his previously assessed whole person impairment.

1. Dr Nair, orthopaedic surgeon was qualified by the respondent. In his report dated

23 July 2024[18] he recorded a history of both accidents and on examination of the thoracolumbar spine noted a 20% global reduction in range of motion. He accepted that the applicant suffered an injury to his right shoulder and right side of the pelvis but on review of the evidence and examination was not satisfied the applicant sustained an injury to the thoracic spine on 4 February 2021. He also considered the applicant had not sustained an injury to the thoracic spine as a result of the electrocution injury in April 2022 and reported (unedited):

"There is no evidence of a thoracic spine injury. I scrutinised the discharge summaries from the John Hunter Hospital. There was no mention of thoracic spine injuries of note. Indeed, he does not have symptoms in his thoracic spine. Wedging of the thoracic vertebrae is often physiological."

1. In summary, counsel for the applicant submitted:

(a) the applicant is credible. He has suffered significant injury on 4 February 2021 falling from a height of more than 2m and landing predominantly on his right side. Ambulance records record injury to the right flank which could be inferred to be the region of the thoracic spine;

(b) the hospital notes also refer to injury to the right flank and it can be inferred that this means the thoracic spine especially given the trauma sustained to the ribs and right pelvis;

(c) the applicant may not have made any specific complaint of thoracic spine pain but it cannot be ignored that he was heavily medicated to control symptoms associated with significant fractures arising from the trauma of the fall;

(d) the fall was significantly violent and the initial focus on the fractures explains the absence of complaint to the thoracic spine;

(e) whilst the hospital notes refer to nil tenderness of the thoracic spine this of itself does not mean that injury did not occur. Tenderness is not indicative of injury. There is no record in the notes of range of motion testing that would elicit any tenderness or pain on movement and there should be limited reliance placed on the specific entries relating to the thoracic spine on initial hospital presentation;

(f) the lack of complaint of thoracic spine symptoms should be of little significance. There were also lack of right shoulder complaints but ultimately this was accepted as an injury by the respondent. Delayed reporting does not mean that the injury did not occur as stated, particularly given the violent nature of the fall;

(g) the hospital notes should be treated with caution. Initial radiology reports recorded nil fractures initially which were inconsistent with clinical presentation. It was only after the report was queried that a correction made identifying the fractures. This therefore demonstrates there were mistakes made in initial diagnosis and assessment at the hospital;

(h) it is a matter of commonsense that given the applicant suffered injury to his right flank and right pelvis after falling from a height of 2m that he would have suffered injury to his thoracic spine, and

(i) all areas claimed should be referred to a Medical Assessor for assessment of whole person impairment.

1. In summary, counsel for the respondent submitted:

(a) the respondent accepts injury to the pelvis and right shoulder;

(b) the onus is on the applicant to establish injury. His statement is inconsistent and unsupported with the contemporaneous records and examinations of the paramedics and various staff at Tamworth and John Hunter Hospitals. More likely than not, the passage of time has resulted in subconscious construction/reconstruction of the nature of his two injuries;

(c) the applicant's qualified evidence is based on the applicant's skewed recollection of events rendering it of little probative value, greater weight should be afforded to the contemporaneous hospital notes;

(d) the applicant's own qualified evidence does not support fracture/injury to the thoracic spine resulting from the 2021 accident. Dr Bodel has indicated he has agreed with Dr Nair's assessment relating to thoracic spinal injury. Further Dr Bodel was qualified initially in regard to the second accident (electrocution) where he nominated the applicant suffered serious injury to the thoracic spine. His 2024 assessment (relating to this claim) makes no allowance for any injury suffered to the thoracic spine in the second accident and postulates all of the thoracic spinal symptoms (apart from the fractures) relate to the injury subject to this claim. He has not explained his conclusions, and

(e) the applicant has not established on the balance of probabilities that he sustained an injury to the thoracic spine on 4 February 2021.

1. Section 4 of the 1987 Act states that injury means personal injury arising out of or in the course of employment. Further s 9A of the 1987 Act requires employment to also be the substantial contributing factor for compensation to be payable (except in cases of disease injury) where it must be established that employment is the main contributing factor.
2. To establish injury, the evidence must demonstrate sudden or identifiable[19] (Kennedy) pathological change[20] (Castro). The word "injury" refers to both the event and the pathology arising from it[21] (Lyons). Further, the issue of causation must be determined based on the facts in each case and the application of the commonsense evaluation of the causal chain (Kooragang).[22]

1. The onus of establishing injury falls on the applicant and the standard of proof is on the balance of probabilities. On this note, it is not necessary that I be satisfied to a degree of certainty but, by the same token, it will not be sufficient if I be merely satisfied that it is possible that the injuries were suffered in the manner alleged. When making findings, the Court of Appeal has identified that a tribunal of fact must be "actually persuaded" of the occurrence or existence of the fact before it can be found. (Nguyen).[23]

The weight of contemporaneous evidence and reliability of memory

1. In circumstances where there is a conflict between the contemporaneous evidence and recall of events the following is instructive:

"(i) Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.[24] (Onassis)

(ii) ...human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."[25]

1. Further when making findings of fact in relation to credibility I have assessed:

(a) the consistency of the applicant's evidence with what is agreed, or clearly shown by other evidence to have occurred, and

(b) the internal consistency of the applicant's evidence throughout the course of the litigation.

Did the applicant suffer an injury to his thoracic spine?

1. Assessment is complicated by the proximity of the thoracic spine to the right flank.
2. It is fair to say, that the respondent relies heavily on what is not in the evidence, namely the absence of contemporaneous complaints relating to the thoracic spine to treating doctors for several years post the 2021 injury especially in circumstances where contemporaneous hospital assessments following the trauma specifically reported no injury to the thoracolumbar spine. The matter also becomes complicated as Dr Bodel has reported the applicant sustained significant injuries in the 2022 accident to his thoracic spine yet in a subsequent report maintains the 2021 accident (the subject of this claim) to be responsible for the applicant's presentation in the thoracic spine without any cogent explanation.
3. Having considered the evidence and submissions above, I find the applicant has not met the onus and established on the balance of probabilities with a degree of actual persuasion or affirmative satisfaction that he sustained an injury, i.e., a "physiological change or disturbance" in his thoracic spine as defined in s 4 or s 4b (II) of the 1987 Act as a result of workplace events on 4 February 2021. This is because:

(a) I have given careful consideration to the applicant's submission that the alleged injury to the thoracic spine was overlooked or underestimated by the applicant and all of the doctors who have examined him (other than Dr Bodel) because their focus was on the fractures of the pelvis and ribs which was the reason for the hospital admission. I also note the submission that symptoms may have been obscured by the significant pain control offered to the applicant. An equally plausible explanation is that as submitted by the respondent, that is, the lack of attention to the thoracic spine, is because there was in fact no injury to that region. I so find. This is particularly so given that the applicant never gave any history of having suffered pain at the thoracic spine at the time of the initial injury or shortly thereafter, with such complaints initially raised with Dr Bodel for the purposes of his public liability proceedings;

(b) I am very mindful of the case law that requires a decision maker to treat clinical notes with caution given the primary concern is with treatment which could account for a lack of precise recording of symptoms arising from any work related event.[26] The applicant's counsel questioned the accuracy of the hospital notes and cautioned on over reliance, especially given the initial radiology report of the ribs revealed no fracture which was clearly inconsistent with physical assessment ultimately resulting in the report being corrected. There was also a lack of reporting of the right shoulder symptoms despite liability being subsequently accepted by the respondent. However, I find the hospital notes refer to examination/assessment of the thoracolumbar spine and on no less than three occasions specifically record there to be no injury or tenderness to the area. This is not a case where there has been an omission in documenting thoracic spine symptoms but rather there were specific enquiries made which established there was no injury or complaint;

(c) counsel maintains that observation by hospital staff of the mere "lack of tenderness" in the thoracic spine is insufficient to assess injury to the area and this properly should be tested by range of motion and movement. I disagree. Commonsense would suggest that if there were symptoms complained of in the thoracic spine, further assessment would likely have been undertaken especially given that the records show that a comprehensive head to toe assessment was undertaken including assessment of the head, neck, upper limbs, spine and lower limbs;

(d) whilst there was no tenderness noted in the thoracic spine at the hospital arising out of the 2021 accident, Dr Bodel in his 2023 attributed such tenderness to the 2022 accident. He did not however make such assessment in his 2024 report as this was a telehealth assessment;

(e) the submissions that perhaps symptoms in the thoracic spine were disguised/masked due to medication is not advanced nor supported by either the applicant's statement or any medical evidence;

(f) it was advanced that given the nature of the fall/trauma it is commonsense the applicant suffered an injury to the thoracic spine. I reject this as whilst I accept the fall was significant, the absence of injury to the cervical or lumbar spine, invokes a commonsense conclusion which does not allow for a finding that the thoracic spine would have been injured in isolation;

(g) the injury to the flank is noted but this appears to largely reflect the area between the rib cage and hip. Counsel for the applicant inferred this could also refer to the thoracic spine given its proximity. Had the flank included the thoracic spine, the specific examination, assessment and documentation of the thoracic spine would have been redundant. The records however establish that it was assessed in isolation. It follows and I find an inference cannot be drawn logically;

(h) counsel highlighted mistakes were made in diagnosis at the hospital specifically referring to the failure to identify the rib fractures on radiological investigation and so it can be inferred mistakes were made in relation to the thoracic spine. I note that the radiological report was corrected following physical assessment of the ribs by the SRMO at which time the thoracic spine was also assessed and recorded to have no injury. I accept that errors were made by the radiologist but that does not automatically suggest that errors were made by the treating physicians attending upon the applicant;

(i) the reports of Dr Bodel have not advanced the matter. His first assessment suggested the applicant was totally unfit on account of injuries which included fractures and wedging of the thoracic spine at the T4, T6 and T7 levels after the applicant was thrown off his machine in the 2022 accident. His subsequent assessment for the purposes of this claim makes no deduction for injuries that occurred when being thrown off the machine (despite articulating them specifically in his earlier report) suggesting the entire presentation, impairment and restrictions in activities of daily living arising from the thoracic spine was attributable to the 4 February 2021 accident. He acknowledges chronic pathology in the thoracic spine but makes no deduction. (Clearly the impact of pre-existing pathology and any subsequent injury is the domain of a Medical Assessor, although I raise this as I have found his reports and specifically his conclusions to be internally inconsistent and overall fail to engage with the chronology of events). Dr Bodel agrees with Dr Nair that the fractures at various levels in the thoracic spine were not the result of the 2021 workplace injury yet maintains the applicant did suffer an injury (outside of the fractures) to the thoracic spine, which is not supported by the contemporaneous medical records;

(j) the applicant was assessed by Dr Bodel in 2024 for his 2021 injury. Three years elapsed with a significant accident in 2022 including electrocution in the interim. The applicant reported to Dr Bodel he had ongoing pain in the thoracic region post the 2021 accident but this is not supported by either the hospital nor general practitioner records. I find the variations in the history of injury during the progress of the claim likely due to subconscious construction/reconstruction of events due to the passage of time and thereby diminishing credibility of the applicant. I further find the applicant's representations on causation to be inconsistent and misaligned with the contemporaneous hospital records and treating doctors' notes which I prefer (Onassis), and

(k) I acknowledge the opinion of Dr Nair. I agree with applicant's counsel that the report lacks detail, however, to the extent of any overlap, it is consistent with the history obtained by paramedics, hospital staff and the general practitioner.

1. For these reasons, I find in favor of the respondent in respect of the allegation of injury to the thoracic spine.

1. I now make the findings and orders set out in page 1 of the Certificate of Determination.

[19] see Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45 and Military Rehabilitation and Compensation Commission v May [2016] HCA 19.

[20] Castro v State Transit Authority (NSW) [2000] NSWCC 12; 19NSWCCR 496.

[21] Lyons v Master Builders Association of NSW Pty Ltd (2003) 25NSWCCR 442 at [429].

[22] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR [463].

[23] Nguyen v Cosmopolitan Homes 2008 NSWCA 246.

[24] Onassis v Vergottis [1968] 2 Lloyds Rep 403 at 431.

[25] Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR 315 at 319.

[26] Mastronardi v State of New South Wales [2009] NSWCA 270.