Consequential injury claims: why contemporaneous records matter

Consequential injuries are common in workers compensation claims. For a worker to establish they have a consequential injury they need to show it was causally related to and results from the accepted physical injuries.

Workers are not required to prove the consequential injury is an injury within the meaning of section 4(a) of the Workers Compensation Act 1987 (1987 Act) or prove that employment was a substantial contributing factor to the injury under section 9A of the 1987 Act.

This a lower bar then establishing the primary injury. However, evidence is still required to establish the causal connection between the accepted injury and the alleged consequential injury.

The recent decision in Likow v Qantas Ground Services Pty Ltd [2026] NSWPIC 417 explored an alleged consequential injury and reinforced the importance of contemporaneous records and consistency in reporting the emergence of symptoms in determining causation.

Background

On 1 August 2022, the worker sustained a lumbar spine injury (primary injury) during the course of his employment.

The worker also claimed that he sustained an injury to the cervical spine during a Pilates exercise session for his primary injury.

The worker sought approval for surgery in the form of a right C4/5, C5/6 and C6/7 foraminotomy.

The insurer declined liability for the worker’s alleged consequential cervical spine injury and the payment of medical expenses related to the surgery.

The worker sought to challenge this decision in the Commission.

The PIC proceedings

The Member was required to look at the causal chain between the accepted primary injury and the alleged consequential injury to the cervical spine.

The worker provided several statements in support of his claim. In his first statement dated 30 April 2024, he gave a history of sustaining an ‘upper back’ injury while performing Pilates exercises. He did not state when the pain developed, only that it worsened during September 2023. In the second statement dated 4 September 2025, he said the cervical spine condition had previously been asymptomatic. It was only in his third statement, dated 3 December 2025, that he described the alleged onset of pain while doing Pilates in September 2023.

What the contemporaneous records showed

The treating physiotherapist’s clinical notes were before the Member and confirmed the worker performed Pilates exercises for the purpose of rehabilitating the primary injury. However, they recorded only one incident in July 2023, involving left-sided rib pain that resolved within a week.

The clinical records showed a ‘flare up’ of pain in August 2023, which the Member said appeared to be related to the lower back. It was noted the records didn’t contain any reference to body parts other than the lower back.

The Member noted the clinical record made no reference to the worker reporting any injury in the course of doing his rehabilitation exercises and made no reference to the upper back or cervical spine.

The Member considered the severity of the alleged cervical spine pain and the contemporaneous medical evidence and found ‘it is inconceivable that [the worker] would not have mentioned the neck and back symptoms’ to his treating practitioners.

The competing medical evidence

In a report in February 2024 the worker’s treating shoulder surgeon, Dr McKechnie, took a history of an injury to his right shoulder in September 2023 while doing Pilates exercises. He then made a diagnosis of a soft tissue injury of the cervical spine, cervical spondylosis and right shoulder rotator cuff tear but did not take a history of the worker having suffered any injury to his cervical spine in the incident in September 2023.

The worker relied on IME reports of Dr Bodel, who initially took a history of the onset of neck symptoms at the time of the primary injury. He did not take any history of the onset of symptoms while undertaking Pilates.

In a request for a supplementary report, the worker’s solicitors informed Dr Bodel of the alleged onset of symptoms in September 2023. On that history, Dr Bodel said the treatment could put an undue load on the cervical spine and accepted a causal connection between the treatment and the onset of symptoms.

The report of Dr Bodel was provided to Dr McKechnie who then changed his opinion and said the worker’s cervical spine symptoms occurred in the course of his rehabilitation, exercise and Pilates program for the accepted injury to the lumbar spine. He said this aggravated pre-existing asymptomatic degenerative changes in the cervical spine.

The respondent relied on an IME report from Dr Moloney, who did not take a history of a cervical spine injury in September 2023. He found there was no evidence on an injury to the cervical spine at the time of the primary injury.

The Member’s findings

The Member considered that Dr McKenchie and Dr Bodel had accepted an account of symptoms in September 2023 that the worker had not provided during the examinations. That account was also inconsistent with the histories previously provided to them and with their earlier opinions.

It was also the evidence of the worker that prior to September 2023 he had no cervical spine symptoms, which the Member noted was inconsistent with the clinical records which showed he was reporting cervical spine pain as recently as May 2022.

The Member was satisfied the contemporaneous clinical records indicated that prior to the accepted injury on 1 August 2022, the worker had a chronic cervical spine condition with radiation of radicular symptoms into the right upper extremity, which had been present for years. 

Ultimately the Member determined:

• the applicant did not sustain a consequential condition of his cervical spine as alleged; and

• there is an award for the respondent in respect to the claim for the costs of and ancillary to cervical spine surgery.

Key takeaway

The decision is a timely reminder that contemporaneous records may be decisive where later accounts evolve or conflict. Expert and lay evidence may carry limited weight when it relies on a history that is inconsistent with, or unsupported by, the objective evidence.

Authors: Kate Ralph & Sol Adamcewicz

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