Assessing new injury claims in existing NSW workers’ compensation matters: The importance of identifying inconsistencies and the role of contemporaneous evidence

Insurers frequently encounter situations where workers claim newly identified injuries under pre-existing claims. The recent case of Ma'ilei v Unisson Disability Pty Ltd [2026] NSWPIC 190 highlights the critical role of medical evidence in assessing such claims. 

This article examines the case and provides practical recommendations for NSW workers’ compensation insurers and legal representatives in assessing such claims. 

Background

The worker, Mr Ma’ilei initially claimed he had suffered injuries to his head, right elbow, and right shoulder following an incident on 17 August 2020. The incident involved a client the worker was caring for who had a history of self-harm. These injuries, along with a secondary psychological injury, were accepted by the insurer. 

In 2022, the worker claimed lump sum compensation in respect of his physical injury. This included claims for injuries to the cervical spine and lumbar spine due to the 17 August 2020 incident. These injuries were declined by the insurer, primarily due to a lack of contemporaneous evidence. 

The worker also made a lump sum compensation claim for a primary psychological injury. The insurer declined the claim on the basis the medical evidence did not support a primary psychological injury. 
The worker filed proceedings in the Personal Injury Commission pursuing his claims for lump sum compensation. The matter was heard by Member Benk.  

Decision

The Member entered awards for the employer with respect to “injury” to the lumbar spine and the “primary psychological injury”. Member Benk found the worker had suffered an injury to the cervical spine. 

Analysis of the evidence and reasons

Cervical spine injury

The worker relied on the Independent Medical Examination (IME) report of Dr Herald, orthopaedic surgeon, who diagnosed a soft tissue injury to the cervical spine. Dr Herald linked the cervical spine injury to the head injury sustained on 17 August 2020. The employer relied on the IME report of Dr Machart, orthopaedic surgeon, who was of the opinion there was no evidence to support the claimed injury to the cervical spine.

A head injury, due to the worker’s head striking a door, was documented from the onset of the claim. Clinical records from 25 August 2020 onwards documented complaints of neck pain, supporting the claim. 

Although the cervical spine injury was not reported immediately, Member Benk found these complaints sufficiently justified the reasoning provided by the Dr Herald regarding a whiplash injury to the neck as a result of the head strike.

Member Benk accepted the worker suffered an injury to the cervical spine.   

Lumbar spine injury

The worker’s recollection of the mechanism of injury had changed during the course of the claim. He had originally reported falling forward but later alleged a lumbar spine injury occurred as he fell backwards. 

Member Benk referred to the cases of Onassis and Foxman, which highlight the risk and difficulties with memory recall and alteration of memories (especially when in emotional state) given the passage of time. Accordingly, she gave more weight to the contemporaneous evidence recording the mechanism of injury at the time. 

The worker argued the lumbar spine injury resulted from the same incident, relying on Dr Herald’s opinion that injuries to the “left loin region” and “left hip region” could indicate the worker suffered a back injury. The insurer relied on the IME report of Dr Machart, and he was of the opinion there was no evidence to support the claimed injury to the lumbar spine. On behalf of the employer, it was highlighted the contemporaneous medical records did not document lumbar spine symptoms.

There was an absence of contemporaneous evidence on lumbar spine injury or symptoms. 

Member Benk was not persuaded, on the balance of probabilities, mechanism on injury as recorded contemporaneously would have resulted in an injury to the lumbar spine. As such, the worker failed to discharge his evidentiary onus establishing an injury to the lumbar spine injury had occurred. 

Primary psychological injury

The worker claimed a primary psychological injury stemming from exposure to a “life-threatening situation” on 17 August 2020. He relied on IME reports from psychiatrists Dr Nagesh and Dr Smith. The insurer relied on the IME report of Professor Sahoo, who diagnosed the worker as suffering from an Adjustment Disorder secondary to his physical injury. 

The Member noted the worker’s statement did not describe the onset of psychological symptoms. Further, the medical evidence referred mostly to frustrations flowing from his physical injury claim.

Member Benk found the facts relied on by Dr Nagesh and Dr Smith, of a threat to the worker’s life, were inconsistent with the facts previously reported by him. Further, she concluded Dr Nagesh had not addressed the logical inconsistency of the delay in reporting a supposedly severe injury. 

Member Benk applied the reasoning in Paric, an expert’s opinion would be valuable in principle and common sense if the facts considered are sufficiently like the circumstances in consideration and the opinion needs to be given in a “fair climate”. As such, she placed little weight on Dr Nagesh’s and Dr Smith’s opinions. 

Member Benk was not satisfied the worker had suffered a primary psychological injury.

Practical recommendations

1. Contemporaneous evidence: Maintain detailed records of the worker’s initial reports and medical consultations to be able to compare these with later reports of injury, whether that be the mechanism of injury or body parts claimed to have been injured at the time.

2. Evaluate claims for additional injuries: When a worker alleges new injuries, review the claim file and clinical records to assess whether the mechanism of injury and reported body part(s) are consistent with prior reports and contemporaneous evidence.

3. Seek expert opinions: Obtain opinions from treating doctors and independent medical examiners regarding injury and causation in a timely manner. Ensure they base their conclusions on facts consistent with the worker’s initial and accepted account.

4. Address discrepancies: Identify and address any inconsistencies in the evidence relied upon by experts. This may involve seeking clarification or additional reports.

Authors: Stephen Marsh and Ayurshi Khatri

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.