Romeo v Vanguarde Pty Ltd & Ors [2024] NSWPIC 214

Applicant: Gino Romeo

Respondents: Vanguarde Pty Ltd and BME Group Pty Ltd

Background:  The Applicant brought a claim for weekly benefits and medical expenses following an injury to the cervical spine which allegedly arose as a result of the employment with the Respondents. The injury with the first Respondent was deemed to have occurred on 1 December 2017 whilst the injury with the second Respondent was deemed to have occurred on 20 November 2018.

The main allegation was the fact that the nature and conditions of the Applicant’s employment with both of the employers led to the development of pain and stiffness in his neck.

The Applicant lodged a claim against the first Respondent on 4 March 2020 and on 20 February 2023 against the second Respondent.

The Applicant was assessed by Dr Peter Khong, neurosurgeon, who opined in the report dated 29 April 2021, that the Applicant required a C5/6 and C6/7 anterior cervical discectomy and fusion, due to the exacerbation of pre-existing existing degenerative changes as a result of his employment with the Respondents.

The Respondents disputed liability for weekly benefits, past medical expenses and for the proposed surgery to the cervical spine.

Issues: 

• Did the applicant sustain an injury to his cervical spine that arose out of or in the course of his employment with the respondents pursuant to s 4 of the Workers Compensation Act 1987 (WCA)?
• Whether the applicant’s employment with the respondents was a main contributing factor to the injury to his cervical spine pursuant to s 4(b)(ii) of the WCA?
• Did the applicant give notice of injury in accordance with s 254 of the Workplace Injury Management and Workers Compensation Act 1998 (the1998 Act)?
• Did the applicant make a claim for compensation in respect of the injury within the time prescribed by s 261 of the WCA?
• Was there an incapacity relating to the workplace injury and if so, what was the entitlement to weekly compensation?
• Were the applicant’s medical expenses including the surgery proposed by Dr Khong to the cervical spine reasonably necessary pursuant to s 60 of the WCA?

Decision:  In terms of the Applicant’s employment with the first Respondent, the Member found that there were various inconsistencies with the Applicant’s allegations and contemporaneous evidence from the Applicant’s doctors. In such circumstances, the Member referred to cases of Davis v Council of the City of Wagga Wagga 2004 NSWCA 34 and Mason v Demasi [2009] NSWCA 227 which outlined that inconsistencies between a witness’s evidence and clinical notes should be treated with caution.

Further to this, it was emphasised that there were no records of any report or complaint of the cervical spine issues to treating doctors until February 2021. It was noted that the opinions of doctors in the present case were solely based on the Applicant’s history.

In regards to the Applicant’s employment with the second Respondent, the Member was satisfied that Dr Khong, whom the Applicant engaged in support of his claim, confused the names of the two employers and the Applicant’s respective duties with same. The Member determined that due to such confusion, no weight could be placed upon the report of Dr Khong, concerning the cause of the alleged injury when considering the Applicant’s employment of the second respondent.

The Member subsequently stated that he was not satisfied that the Applicant established that he sustained an injury arising out of or in the course of his employment with the second Respondent.

Following a review of relevant medical and factual evidence, the Member concluded that the Applicant failed to discharge his onus of proof in establishing that he suffered a compensable injury during the course of his employment with both of the Respondents. The Commission hence ruled in favour of the first and second respondents.

Lessons for the employers and insurers: 

• Contemporaneous evidence is crucial in establishing nexus between alleged injuries and employment.
• Inconsistencies between contemporaneous evidence and witness evidence should be treated with caution.
• It is imperative that an accurate history of a worker’s employment, duties and alleged injury(ies) is provided to an expert doctor.
• The injured worker must supply contemporaneous and historical records before a determination can be made, and this information should be pressed.