Bavafa v Bob Jane Corporation Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Bavafa v Bob Jane Corporation Pty Limited [2023] NSWPIC 39
APPLICANT:	Amir Hossain Bavafa
RESPONDENT:	Bob Jane Corporation Pty Ltd
PRINCIPAL Member:	Josephine Bamber
DATE OF DECISION:	2 February 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; injury to cervical spine alleged pursuant to section 4(b)(ii) as a result employment from 2017 to 30 January 2019 including incident on 16 May 2018; claim for proposed cervical C5-7 anterior decompression and fusion surgery and associated treatment pursuant to section 60; respondent denies injury occurred and disputes whether the surgery is reasonably necessary treatment; Held – award for the respondent in relation to allegation of injury to cervical spine on 16 May 2018; award for applicant pursuant to section 4(b)(ii); finding that proposed surgery is reasonably necessary treatment.
determinations made:	1. Award for the respondent in relation to the allegation of injury to the cervical spine on 16 May 2018. 2. Pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 the applicant has sustained injury to his cervical spine with his employment with the respondent from 2017 to 30 January 2019 being the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. 3. Pursuant to s 60 of the Workers Compensation Act 1987 the C5-7 Anterior Cervical Decompression and Fusion surgery, and associated treatment, is reasonably necessary treatment as a result of injury sustained by the applicant with a deemed date of injury 31 January 2019 in the course of his employment with the respondent. 4. The respondent is to pay the costs of the C5-7 Anterior Cervical Decompression and Fusion proposed surgery and associated treatment pursuant to s 60 of the Workers Compensation Act 1987 in accordance with the workers compensation gazetted rates.

STATEMENT OF REASONS

BACKGROUND

Amir Hossain Bavafa, the applicant, was employed with the respondent, Bob Jane Corporation Pty Limited, as a tyre fitter from sometime in 2017. In the Application to Resolve a Dispute (ARD) a deemed date of injury is pleaded, 31 January 2019 and the type of injury is a disease. The injury description states:
“Nature and conditions of employment with Respondent commencing sometime in 2017 until 31/01/19 (including the incident on 16/5/18) involving lifting and changing tyres and lifting of heavy weights on a repetitive basis caused injury to the cervical spine, lumbar spine, both hands and shoulders.”
The claim for compensation in these proceedings is confined to the proposed C5-7 Anterior Cervical Decompression and Fusion surgery and associated treatment and costs.
The respondent disputes that Mr Bavafa has sustained injury to his cervical spine and whether the treatment is “reasonably necessary treatment” pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
7 December 2022. Mr Dennis Epstein, counsel, instructed by Ms Jamie Coleman, solicitor, appeared for Mr Bavafa, who was present with a Farsi interpreter. Mr Paul Stockley, counsel, instructed by Mr Christopher Michael, solicitor, and Ms Andrea Petkovic from EML, appeared for the respondent.
5.

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a) ARD and attached documents (881 pages), and
(b) Reply and attached documents (769 pages).
At the outset of the hearing the respondent advised it had called for the letters sent by
Mr Bavafa’s solicitors to Dr Bodel. The respondent did not have a copy to tender so I advised they could make their submissions about them, as both parties had copies, and the respondent could file the letters after the hearing. The letters are dated 2 July 2021,
3 June 2022, 11 July 2022 and 18 August 2022.
An Application to Admit Late Documents (AALD) was subsequently filed by the respondent on 8 December 2022. That AALD attaches 2,572 pages of documents, being the letters to Dr Bodel and the attachments to the letters. The AALD index does not refer to each attachment separately, but it is apparent that many of the attachments duplicate documents already attached to the ARD and Reply.
Leave was not given for such a voluminous amount of documents to be filed.
In the circumstances, I will only consider evidence that is referenced by counsel in their submissions. The High Court in Gamestar Pty Ltd v Lockhart[1] stated that “a judge is not bound to set out on a search for supportive evidence to support a claim which the party failed to articulate intelligibly”. In Jaffarie v Quality Castings Pty Ltd[2] and Carter v Star Track Express Pty Ltd[3] this principle has been applied in workers compensation cases.
[1] [1993] HCA 79; 112 ALR 623, Gamestar at [8].
[2] [2017] NSWWCCPD 2 Jaffarie at [208].
[3] [2015] NSWCCPD 60 Carter at [34].
I also note that the ARD has many multiple copies of the same clinical records and reports which seems to have come about because Mr Bavafa’s solicitors have included clinical notes from the Workers Doctors Practice, Dr Soo, Dr Singh, and Dr Khong. All of these doctors practice at the Workers Doctors Practice so it is unnecessary to have four copies of the same records. In addition, it is completely unnecessary to include in the ARD the taxation records of Mr Bavafa as this claim does not involve weekly compensation, where they may have had some relevance.
Also, in the reply is yet another copy of the clinical records from the Workers Doctors practice and copies of the radiology reports and those from Drs Zicat, Soo, Singh, and Khong which are in the ARD, as well as two copies of the records from the New Health Medical Centre.
This type of “preparation” by both parties has resulted in over a thousand pages of duplicates, not including the 2,572 pages of late documents. Needless to say this adds to the time spent reading the material and increases the risk that counsel or the Commission could miss an important document and causes delay.
In future matters, applicants’ solicitors should ensure there are no duplicate or irrelevant documents in the ARD and the respondents’ solicitors should not include in their reply copies of documents which are already in the ARD.

Oral evidence

There was no oral evidence. Both counsel made oral submissions, which were sound recorded, and a copy of the recording is available to the parties.

FINDINGS AND REASONS

Mr Bavafa’s statements

Mr Bavafa has provided statements dated 6 April 2022[4] and 15 August 2022[5]. He is now aged 44. He commenced employment with the respondent as a tyre fitter sometime in 2017 and he worked in that role until 30 January 2019. His first statement has an incorrect timeline relating to the duration of his employment. He states he had no prior physical injuries before this job. He states that his work involved lifting and changing tyres and lifting heavy weights on a repetitive basis which caused injury to his neck, lower back, both hands and bilateral shoulders. He says on 16 May 2018 he was lifting a tyre and trying to fit it on a motor vehicle and he turned and suddenly felt pain in his lower back, neck and right knee which aggravated his symptoms. He says he reported this to the employer but was not given any time off work.
[4] ARD p1.
[5] ARD p 5.
In his second statement Mr Bavafa recalls having to stack up to 200 tyres at Artarmon. He later says he recalls complaining to his general practitioner about his neck. He does not give a date for this nor does he actually say it was due to the stacking of the tyres. He says he was sent for an X-ray and had some physiotherapy but kept working. He says he reported to his manager that he had a sore neck, but the manager got sacked and so nothing happened. He says at that stage he did not know anything about claiming workers compensation in Australia.
At [13] of this statement Mr Bavafa recounts the details of the incident on 16 May 2018 stating he had to jack up a SUV Land Cruiser, remove the tyre and after repairing it, he lifted the tyre and twisted to fit the tyre and he felt pain in his right knee. He does not refer to injuring his neck in that account but he adds in the next paragraph of his statement that he saw his doctor a few days later as his knee was extremely sore and that his neck and back were sore but not as bad.
He had a knee operation in June 2019 and he states after that he noticed more pain in his neck. He says Dr Rubio sent him for an MRI and to Dr Singh about his neck. He had an injection to the neck which he says gave him three months relief. He sought a second opinion from Dr Khong and relates he was having radiation of pain from his neck down his arms and his neck pain was getting worse.

Treating medical evidence

Mr Bavafa’s treating general practitioner, Dr Taheri, from New Health Medical Centre treated him from 30 January 2018. On that day he was seen for a persistent cough and the doctor has recorded in his clinical notes “neck pain, good ROM”. The doctor prescribed Mobic but otherwise all the treatment and investigations were focused on his cough[6]. On
[6] ARD p 363.
[7] ARD p 363.
[8] ARD p 408.
4 February 2018 Dr Taheri recorded that Mr Bavafa had neck pain for more than six months and he advised physiotherapy[7] and he ordered an X-ray of the cervical spine. The X-ray referral records “neck pain mostly on left aspect”[8]. A copy of the X-ray, if it was undertaken, is not before the Commission.
On 21 May 2018 Dr O’Sullivan at Dr Taheri’s practice refers to Mr Bavafa having posterior knee pain after twisting injury. There is no mention of any neck injury[9]. At a subsequent consultation on 23 May 2018 Dr Taheri discussed the result of right knee MRI showing ACL strain and meniscal tear and gave a referral to Dr Zicat, orthopaedic surgeon[10].
[9] ARD p 364.
[10] ARD p 379.
On 25 May 2018 Dr Zicat reported that Mr Bavafa had difficulty with pain in his right knee for the past three weeks. He said, he woke from sleep from the pain, “although he had been doing quite a bit of work as a tyre fitter”. There is no mention of a neck injury[11]. Dr Zicat saw Mr Bavafa again on 6 June 2018 noting since his last examination had an episode of quite severe swelling in the knee and pain and he recommended an arthroscopy and placed him on the waiting list at Concord Hospital. There is no mention of neck injury[12].
[11] ARD p 404.
[12] ARD p 405.
On 31 July 2018 Dr Taheri saw Mr Bavafa for right bursitis and on 19 January 2019 prescribed Stemetil for dizziness. No mention of a neck injury was recorded at these consultations[13]. On 24 January 2019 Mr Bavafa saw Dr Monfared at the same practice who records that Mr Bavafa did not know he had to do a workers compensation claim and he had now seen a lawyer. His knee operation had been delayed because his employer said they would not cover his post operative period. No mention was made of a neck injury[14]. A WorkCover NSW- certificate of capacity was issued by Dr Monfared for the period
[13] ARD p 365.
[14] ARD p 365.
[15] ARD p 380.
24 January 2019 to 8 February 2019 with the history “was lifting a big tyre at work and his leg slipped off and the Rt knee pain started”[15]. There is no mention of neck injury on this certificate.
Mr Bavafa continued to see the doctors at this practice for other medical conditions but then he commenced to see the various doctors at the Workers Doctors practice.
On 31 January 2019 Mr Bavafa saw Dr Sebastian Calvache-Rubio at the Workers Doctors practice and the doctor records a history that he injured his neck, right knee and back in the incident on 31 May 2018 from lifting a heavy tyre[16]. The doctor diagnosed a cervical strain. Thereafter, Mr Bavafa had physiotherapy treatment from practitioners at the Workers Doctors practice. In the first consultation Mr Ng recorded the injury history as bending and twisting and accumulating physical work for neck and back, waiting surgery for his right knee[17].
[16] ARD p 47.
[17] ARD p 50.
Mr Bavafa completed his claim form on 31 January 2019[18] and referred to injury on
[18] ARD p 606.
[19] ARD p 602.
16 May 2018 when lifting and twisting a tyre. He stated he felt pain in his right knee, lower back and neck[19].
On 7 February 2019 Mr Bavafa saw Dr Soo, orthopaedic surgeon, also at the Workers Doctors practice however the consultation entry and corresponding report[20] only deals with the right knee.
[20] ARD p 522.
On 5 August 2019 an MRI scan was performed of the cervical spine at the request of
[21] ARD p 40.
Dr Calvache-Rubio[21]. The radiologist concluded there was a tiny focal central disc protrusion at C4/5 abutting the anterior cord surface and a more significant abnormality at C5/6 with a disc protrusion mildly flattening the cord and extending to the foramen left side compromise in the C6 nerve.
Throughout 2019 Mr Bavafa continued to mention his neck pain to the various medical and physiotherapy practitioners at the Workers Doctors practice. On 24 September 2019 he saw Dr Bhisham Singh at the same practice. The doctor records that Mr Bavafa was asymptomatic before and had a work related injury in August 2017 after lifting heavy tyres. Dr Singh refers to Mr Bavafa having structural pathology at C5/6 to his cervical spine which is indenting the spinal cord and impacting the exiting roots and is likely to require surgery in the form of decompression and fusion. Dr Singh states he was arranging a perineural injection at C5/6 level as a diagnostic and therapeutic measure[22]. In report to Dr Lee on
[22] ARD p 74.
[23] ARD p 443.
5 October 2019 Dr Singh attributed the neck and arm pain to a large disc bulge at C5/6. He noted he had a work related injury in August 2017 after lifting heavy tyres and he worked for 18 months with lifting and changing of tyres and heavy weights. Dr Singh states his work related activities are likely responsible for his current problems[23].
On 29 October 2019 Dr Singh records that Mr Bavafa has had significant benefit from the C5/6 injection. He said at that time Mr Bavafa wanted to persist with conservative treatment[24].
[24] ARD p 78.
On 3 February 2020 Dr Mo from the Workers Doctors practice records that Dr Singh wished for Mr Bavafa to obtain a second opinion from Dr Khong in relation to operative management[25]. On 13 February 2020 an MRI cervical spine scan was undertaken which revealed multilevel spondylitic changes with mild central canal stenosis at C6/7 and moderate foraminal narrowing on the right at C3/4 and on the left at C6/7[26].
[25] ARD p 84.
[26] ARD p 359.
On 17 February 2020 Dr Calvache-Rubio recorded that Mr Bavafa had frequent flare ups in relation to his neck injury and that he had a cortisone injection. Two days later he saw
Dr Khong. Dr Khong records the history of Mr Bavafa working as a tyre fitter and he sustained an injury 1.5 years earlier when lifting tyres and he twisted hurting his right knee. The doctor adds “Also experienced neck, bilateral shoulder and back pain”. Dr Khong notes the left C6 perineural injection on 30 September 2019 helped him a lot for three months and then the pain returned. He records that Mr Bavafa has no pain down his arms but numbness in all the fingertips bilaterally occasionally, and the left neck pain was the worst. Dr Khong expressed surprise that the injection helped because he found not much in the way of neural compression at C5/6 level. The doctor stated he organised a bone scan and dynamic
[27] ARD p 355.
X-rays[27].
The bone scan dated 3 March 2020 revealed moderate uptake at C5/6 endplates and mild at C6/7[28]. The X-ray of the same date revealed degenerative changes at C5-7[29]. On
1 April 2020 Dr Khong noted these results and states that Mr Bavafa continues to complain of midline and left sided neck pain that radiates to his shoulder. He has non-specific numbness in all his fingertips[30]. On 1 May 2020 Dr Khong records the same symptoms and that sometimes Mr Bavafa drops a knife/spoon and that exercise/physiotherapy helps but the pain returns. He notes that the injection helped him a lot and Mr Bavafa told him that when reading on his laptop he has to lie down and he cannot bend his neck. The doctor also notes the neck pain disrupts his sleep. He adds if the pain is intolerable it is reasonable to consider a fusion and he recommended a C5/6 ACDF in the first instance[31]. On 5 June 2020 Dr Khong records that the worsening neck pain makes Mr Bavafa angry and temperamental, he cannot read, use his laptop, stand still and talk to someone and he is exhausted by the neck pain and has to lie down all the time[32]. Dr Khong advises:
“It is reasonable to consider a fusion if Mr Bavafa has exhausted all other options. However, I would be concerned that a C5/6 ACDF would accelerate the degenerative changes at C6/7. I could perform a 2 level ACDF, but this again could lead to other adjacent segment disease.
I have recommended trying non-operative management for longer - physiotherapy, acupuncture, massage etc. I will review him in 2 months' time.[33]”
[28] ARD pp 326 and 751.
[29] ARD pp 325 and 750.
[30] ARD pp 91 and 268.
[31] ARD pp 93 and 265.
[32] ARD pp 95 and 256.
[33] ARD p 96.
On 7 August 2020 Dr Khong saw Mr Bavafa again and records that with the cold weather his neck is more painful and when he wakes in the morning he feels dizzy and has to hold onto something and the tips of his fingers get cold and numb. The doctor continued to recommend physiotherapy, massage and acupuncture and said he would review him in two months. He noted he may require fusion at C5/6 and/or C6/7[34].
[34] ARD pp 99 and 250.
On 9 October 2020 Dr Khong noted the neck pain was 7/10 radiating to both shoulders but not down the arms. He continued to recommend non-operative treatment[35].
[35] ARD pp 103 and 235.
On 8 December 2020 Mr Bavafa consulted Dr Singh who advises he needs surgery[36]. On
[36] ARD p 211.
[37] ARD p 212.
[38] ARD p 207.
11 December 2020 he saw Dr Khong who recorded similar symptoms as previously and noted the pain was affecting his social and work life. He advises that given the neck pain significantly affects him, surgery is reasonable and he recommended a C5/6 anterior cervical decompression fusion[37]. On 22 December 2020 Dr Singh sought approval from the insurer for the surgery and reported to Dr Lim in relation to the same[38].
Dr Khong’s quote for the proposed surgery is dated 12 December 2020 comprised of surgeon’s fees of $16,968.75, assistant’s fee $3,393.75, plus unspecified costs for the anaesthetist fee, theatre fee, five nights in St George Private Hospital, instrumentation. Sundry costs such as physiotherapy and pharmaceuticals are estimated at $500[39]. Device Technologies quoted $7,483.30 for the instrumentation costs[40].
[39] ARD p 200.
[40] ARD p 201.
On 19 February 2021 Dr Khong saw Mr Bavafa again and noted persistent neck pain and numbness during the day two to three times in both hands[41]. He said he was requesting another MRI. This was undertaken on 20 March 2021 referring to multilevel degenerative spondylosis with mild canal narrowing at C5/6 and C6/7 with osteophytes at C4/5 causing foraminal narrowing. There was possible compromise upon exiting right C5 nerve root[42].
[41] ARD pp 111 and 127.
[42] ARD p 754.
On 16 September 2021 Dr Singh reported to Mr Bavafa’s solicitors advising:
“He has a work-related injury after lifting heavy tyres. He was asymptomatic before this injury. There is a background of heavy lifting and repetitive bending and twisting as part of the nature and conditions of his employment as a mechanic. There is no evidence of any symptomatic pre-existing injuries, conditions or predisposing factors that may have contributed to his neck and lower back conditions.
…
For the reasons detailed above, I believe that his employment as a tire fitter involves significant physical demands to his lumbar and cervical spine. The nature and condition of employment was squatting, bending and lifting, heavy lifting, pushing and pulling. I feel that his employment is the main contributing factor to his injury.”[43]
[43] ARD p 817.

Dr Singh expressed the opinion that treatment options are medication, physiotherapy, injection and surgery. He says Mr Bavafa has tried medication, physiotherapy and had an injection to the cervical spine. He advises that he has not had sustained relief and opines that therefore surgery is reasonably necessary. He says it is an accepted and appropriate method of treatment for conditions that have not responded to conservative treatment.
Dr Singh adds:
“The purpose of surgery is to decompress the neurological elements thereby improving the pain in the arm and the periscapular area. Fusion will stabilise the injured motion segment at C5/6, and prevent neurological deterioration and result in improved function. With surgery he has a chance to return to the workforce.
The costs of this surgery are commensurate with gazetted rates. I believe the benefit of the surgery offsets the costs of the surgery by improvement of function and the opportunity to be able to return to some sort of employment.”
Dr Khong has also provided a report dated 10 September 2021 attributing the neck condition to his work and recommending surgery. He added that it is likely Mr Bavafa had pre-existing degenerative changes and that his employment is likely to have caused some acceleration of such changes and he refers to an acute exacerbation due to his lifting injury[44].
[44] ARD p 819.
Mr Bavafa changed his general practitioner to Dr Henry Yu Gao, from the Granville Family Medical Centre, who on 30 November 2021 referred him to physiotherapy for cervical spine, lower back, and shoulder pain. On the following page Dr Gao has written that Mr Bavafa sustained his injury on 16 May 2018 when lifting a heavy tyre from an SUV “he lifted the tire from ground to his shoulder level and try to put it on a tire stripping machine he felt sudden pain in his R knee, lower back and neck”. He adds in the last few years in his neck he has chronic pain with radiculopathy pain shooting into his left hand, affecting his sleep and he cannot get comfortable[45]. Dr Gao sought opinions from Drs Khong and Singh about surgery, presumably he must not have had their records before him.
[45] ARD p 842.

Dr Bodel

Dr Bodel, orthopaedic surgeon, has provided medico-legal reports dated 6 July 2021,
3 June 2022, 13 July 2022 and 18 August 2022. In his first report Dr Bodel has a history that on 16 May 2018 Mr Bavafa was lifting a large, heavy tyre to fit on a motor vehicle and he developed increasing pain in the neck, shoulder girdle, back and right knee. The doctor did his examination by video and says Mr Bavafa identified the discomfort over the top of his left shoulder and the base of the neck. Dr Bodel stated there was restricted neck movement mostly on rotation to the left. He diagnoses a disc injury at C5/6 and other injuries due to the work injury on 16 May 2018. Dr Bodel states there is no indication of any pre-existing abnormality or condition. Dr Bodel did not have any of the radiology before him but notes the references to the MRI scans in the records from the Workers Doctors and Dr Zicat’s report. In terms of surgery, Dr Bodel said he would not strongly recommend it in the absence of any clinical sign of radiculopathy. He notes the report of the MRI scan showed disc pathology at C5/6 contacting the spinal cord but he said there is no definite indication that there is nerve root compression.
However, having expressed his reservations about surgery in answer to question 12 as noted above, Dr Bodel in answer to question 13 then says the surgery is reasonably necessary treatment for the management of the injury Mr Bavafa suffered at work[46].
[46] ARD p 825.
On 3 June 2022 Mr Bavafa’s solicitors wrote to Dr Bodel sending him the 2021 reports of
[47] AALD p 866.
Drs Singh and Khong and the s 78 notice and asked the doctor to provide a supplementary report as to whether the proposed surgery is due to a frank injury or nature and conditions of employment and whether the surgery is reasonably necessary[47].
Dr Bodel responded the same day with his supplementary report advising that the proposed surgery was reasonably necessary for the frank injury on 16 May 2018. He adds:
“I have also seen the report from Dr James Powell, who felt that he had a good range of neck motion and no significant neurological abnormality in the upper limbs, and that is consistent with my observations as well. He has trialled a variety of conservative measures for the management of the neck. These have failed and he is still suffering symptomatic pain in the neck which is troublesome.
The proposed surgery is reasonably necessary as a treatment modality in this circumstance and is to be considered as an appropriate treatment for him.”
On 11 July 2022 Mr Bavafa’s lawyers wrote again to Dr Bodel advising that they have had a lengthy conference with Mr Bavafa and the history Dr Bodel had in his examination of
Mr Bavafa was not correct[48]. They set out in the letter the correct history including:
[48] AALD p 868.
“1. Our client commenced at Bob Jane sometime in 2017. He was employed as a fulltime Tyre Fitter and his duties included:-
a. Fitting tyres.
b. Performing wheel balances.
c. Placing tyres on a stack and removing tyres from racks.
2. Our client initially worked at Bondi Junction and then Gladesville before being transferred to the Artarmon branch.
3. Whilst at Bondi Junction and Gladesville, he performed this work as part of a team. At Artarmon, he had to perform this work on his own. He found that he was having to repetitively stack up to 200 tyres which involved a lot of lifting as well as a lot of repetitive pulling of tyres off racks.
4. At that time, our client was being treated by Dr Taheri (GP) at New Health Medical Centre Gladesville. We enclose his notes and note the following attendances:-
‘30/1/18 – neck pain – good range of movement.
4/2/18 – neck pain for more than six months – advise x-ray physio – neck pain mostly in left aspect.’
5. We are instructed that on 16/5/18 as he was replacing a large tyre on an SUV vehicle and twisted to fit the tyre, he felt pain in his right knee. We are instructed that our client kept working that day but as his knee became extremely sore, he saw his GP on 21/5/18.
6. The following is the note of that attendance:-
‘21/5/18 – posterior knee pain after twisting injury, unable to fully flex or twist (twist test extremely positive), exclude meniscal tear. Reason for visit – knee pain’.
7. We are instructed that following this incident, our client only had a few days off work and then returned to work performing the same duties as outlined above. We are instructed that as well as his knee being sore his neck got worse.
8. It appears that it was not until 24/1/19 when our client became aware that he could claim workers compensation in relation to his injuries and changed GPs to a different practice – Dr Calvache Rubio at Workers Doctors in Parramatta. This practice certified him unfit for work from 31/1/19 and he did not work after that date.”
The rest of the letter summarised the treating medical evidence and requested Dr Bodel to advise whether the neck problem was due to the aggravation, acceleration, exacerbation or deterioration of a disease due to the nature and conditions of his work as a tyre fitter up to
31 January 2019.
On 13 July 2022 Dr Bodel provided his report noting he re-examined Mr Bavafa that day, who attended on his own. Dr Bodel refers to Dr Taheri’s record of 30 January 2018 and
6 February 2018 that Mr Bavafa had neck pain for six months and that an X-ray and physiotherapy were recommended. Dr Bodel notes that Mr Bavafa had minimal treatment for this minor neck pain and was able to cope with his work up to 16 May 2018. Dr Bodel states in this incident Mr Bavafa had to lift a large heavy type of tyre and the hoist was not available and that Mr Bavafa developed increasing pain in the neck and shoulder girdle as well as back and right knee pain. He states Mr Bavafa had numbness, tingling and a cold feeling in all five digits of both hands. He says Mr Bavafa went to his doctor that day for these symptoms. Dr Bodel does not deal with the fact that there is no complaint recorded by
Dr Taheri of any neck pain or numbness/tingling sensations.
In his examination of Mr Bavafa he finds non-verifiable radicular complaints in the left upper limb and states there are no clinical signs of radiculopathy. He found tenderness at the base of the neck on the left side with guarding and reduced range of movement.
Dr Bodel says he is still of the view that the injury in his neck was a result of the incident at work on 16 May 2018 but then he states the neck problem is due to the aggravation etc of a disease process which has probably arisen as a result of the nature and conditions of his work in general. He says the work as a tyre fitter has aggravated the underlying constitutional degenerative process. He states the aggravation etc is ongoing and he adds:
“I continue to hold the view that the recommended surgery for the cervical spine is reasonably necessary and it is appropriate, having exhausted all conservative approaches. All other available alternatives have been trialled and have not helped. It is a cost effective treatment strategy. It has the potential to improve function over time and it is an accepted form of treatment amongst the medical experts who deal with this type of pathology and supported by the evidence in the medical literature.”
On 18 August 2022 Mr Bavafa’s solicitors wrote again to Dr Bodel[49] pointing out the medical evidence does not record neck complaints after the incident on 18 May 2018 until
31 January 2019. Dr Bodel was asked was the incident on 16 May 2018 part of the aggravation of disease process. Dr Bodel provided a supplementary report that day advising:
“The neck and the back, in my view, are pathological processes associated with underlying degenerative change. The event at work has caused a significant aggravation, acceleration, exacerbation and deterioration of that disease process and the aggravation, acceleration, exacerbation and deterioration is ongoing. This gentleman, at the time of examination, was 43 years of age and there is early degenerative changes seen in the films that I reported on.
…
Q1 - that the injuries to his neck, back & both shoulders were a result of the aggravation of the disease process due to the nature & conditions of our client’s employment as a tyre fitter and that the incident on 16 May 2018 was part of that aggravation process? Please provide your clinical reasoning.
It is probable that in part, the injury to the neck, back and both shoulders is as a result of an aggravation, acceleration, exacerbation and deterioration of a disease process, being underlying degenerative disc disease in the cervical spine and rotator cuff pathology in both shoulders caused by the event that occurred at work when working as a tyre fitter.”[50]
[49] AALD p 1943.
[50] ARD p 836.

Dr Skapinker

Dr Skapinker has provided the insurer with an injury management report dated
18 November 2020[51]. Dr Skapinker saw Mr Bavafa with a Farsi interpreter but states he found it difficult to take a clear and concise history. He records that Mr Bavafa told him on
[51] Reply p 65.
16 May 2018 he lifted a wheel to put into place when he heard a crack at his right knee immediately followed by pain at his neck and lower back. The doctor states that the diagnosis at his neck appears to be pre-existing degenerative disease of the spine. He adds if these changes were aggravated at work he would expect to see recovery within three months of ceasing heavy work.

Dr Powell

Dr James Powell, orthopaedic surgeon, has provided medico-legal reports for the respondent dated 24 December 2020[52] and 25 October 2022[53]. Dr Powell saw Mr Bavafa in person with a Persian interpreter. He lists the documents available to him but they do not appear to include Dr Taheri’s records.
[52] Reply p 734.
[53] Reply p 749.
Dr Powell has the history that on 16 May 2018 Mr Bavafa bent over and turned to his right to pick up the tyre, swinging it up and across his waist height to fit the tyre when he felt a sudden pain through his right knee as he twisted on the right leg to bring the tyre up. He states, simultaneously he felt pain in his lower lumbar region which radiated into both legs and was accompanied by pins and needles and numbness down the legs to his feet. He adds he had “pain at the neck region radiating to the right side of the neck and a feeling of tingling extending into both hands”. Dr Powell records that Mr Bavafa went to see his general practitioner a short time after this incident and he was advised he likely had injuries in the neck, back and knee. He also notes that the neck pain has been severe since the time of the incident with Mr Bavafa saying he has been unable to move his head and neck.
Dr Powell records the history that prior to May 2018 Mr Bavafa had no prior symptoms in his neck. Dr Powell observed he had a good range of movement in the neck, being able to turn 80 degrees to the right talking to the interpreter and full flexion, extension and rotation to the opposite side even though Mr Bavafa told the doctor he was unable to move his neck at all. However, on examination Dr Powell said the range of motion was markedly restricted by vocalisation of pain. The cervical spine was tender to light touch.
Dr Powell in his conclusions stated there were no clear signs of radiculopathy nor myelopathy. He opined that in the cervical region he may have had a muscular strain most likely at trapezius. Dr Powell says that the lifting activity does not place a load on the cervical region as the loads are transmitted through the torso and lower limbs to be balanced against the ground surface. He concludes that the cervical spondylosis would not have been exacerbated in this incident. Dr Powell says the underlying degenerative condition will progress but any work involvement has resolved. He drew attention to the inconsistencies in examination.
Dr Powell provided a further report dated 25 October 2022 without examining Mr Bavafa.[54] Again he does not list that he has been supplied with the clinical notes of Dr Taheri.
Dr Powell was asked whether Mr Bavafa’s work for the respondent as a tyre fitter prior to
31 January 2021 be considered to be the main contributing factor to the aggravation etc of an underlying disease of gradual process in the cervical spine. The doctor answered no.
Dr Powell explains the degenerative changes Mr Bavafa has, are common in the community and affect people differently. He adds that:
[54] Reply p749.
“Activities involving use of the hands and upper limbs do not place high load through the cervical spine. The forces generated in performing activities with the upper limbs, handling weights, applying load, absorbing loads, and so on are transmitted through the shoulder girdle via the torso and lower limbs to be balanced against the ground but the head and neck region remain free in movement, except in very extreme and occasional circumstances.
Activities utilising the upper limbs do not influence the natural history of cervical spondylosis. The main mechanical forces contributing to this are those involved in supporting and moving the mass of the head under the influence of gravity, with these forces operating whenever the individual is in the upright posture, sitting, standing or walking, and when undertaking all daily activities of whatever type.
In Mr Bavafa’s occupation as a tyre fitter, there is a variety of activities undertaken including movement of tyres about the workshop which is generally done by rolling them on the floor. Wheels and tyres may be lifted onto and from vehicles, generally on a hoist, and on and off various machines utilised for wheel balancing and removing and fitting tyres. There is intermittent lifting of moderate loads. (Larger tyres such as for trucks and farm vehicles are fitted using mechanical lifting devices, not manually.)
Stud nuts are fitted and removed using power devices and torque-limited fittings. Tyres are removed, and fitted to rims, using machines and rarely manual levers. The majority of work is done in an upright position, sometimes kneeling or squatting, but rarely requiring access to awkward spaces.
These activities of a moderate to occasionally heavy manual level do not place mechanical loads through the cervical region (the loads being transmitted and absorbed through other anatomic structures).
Determining whether the nature and conditions of work can influence pre-existing disease requires a mechanism for the application of load to be determined and that it can be determined to be applied at a higher level than other daily activities and for a sufficient length of time (long periods through the working day over long periods of working life).
In Mr Bavafa’s case, the nature of his work is not of a sufficient mechanical nature to accelerate or degenerate the cervical spondylosis, nor to mechanically aggravate it. There may be occasions where he turns his head and neck that produces intermittent temporary symptomatic exacerbation, but this is not permanent and will not move to aggravation, and these episodes of symptomatic exacerbation are not of sufficient power to have any influence on the natural history of his already well-established disease, which will continue its natural history.”
Dr Powell is unaware that in February 2018 Mr Bavafa had complained of neck pain of six months duration.
In terms of the proposed surgery Dr Powell says it is a clinical decision between the patient and their treating surgeon. He says the proposed surgery is aimed at improving stability at C5/6 (where the bone scan did show increased uptake) and decompression of the exiting nerve roots to allow some recovery of neural function and reduction of symptoms. He says the surgery will not alter the natural history of the underlying disease.
Dr Powell states it is an accepted procedure where there is neurologic involvement and where instability can be demonstrated.

Legal principles

Injury

Section 4 of the 1987 Act defines “injury” as follows:
“(a) means a personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.”
Mr Bavafa has the onus of proof in establishing that he has suffered an injury within the terms of s 4 of the 1987 Act.
In relation to the onus of proof in Nguyen v Cosmopolitan Homes (NSW) Pty Limited[55] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[55] [2008] NSWCA 246, Nguyen.
The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[56] wherein Kirby P (as his Honour then was) said (at [461G]) (Sheller and Powell JJA agreeing) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. After referring to earlier English authorities, his Honour added (at [462E]):
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[56] (1994) 35 NSWLR; (1994) NSWCCR 796, Kooragang.

His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”

“As a result of”

In terms of whether the proposed surgery is reasonably necessary as a result of the work-related injury, the legal test to apply is that set out in Murphy v Allity Management Services Pty Ltd[57], whether there has been a material contribution to the need for the treatment by the injury. Murphy is authority for the proposition that a condition can have multiple causes and the work injury does not have to be the only, or even a substantial cause, before the treatment is recoverable under s 60 of the 1987 Act. Deputy President Roche stated in Murphy that a worker only has to establish that the treatment is reasonably necessary as a result of the injury; that is, did the work-injury materially contribute to the need for surgery.
[57] [2015] NSWWCCPD 49, Murphy.

“Reasonably necessary”

The legal test to be applied when determining whether proposed treatment is reasonably necessary as a result of a work place injury as required by s 60 of the 1987 Act was considered in Diab v NRMA Ltd[58] wherein Roche DP stated at [86]:
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply.”
[58] [2014] NSWWCCPD 72, Diab.
In Diab Deputy President Roche cited the decision of Judge Burke in Rose v Health Commission (NSW)[59] with approval and stated:
[59] [1986] NSWCC2; (1986) 2 NSWCCR 32, Rose.
“[88] In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.

[89] With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
[90] While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd[1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia[2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”

Submissions

As both counsels’ submissions have been sound recorded I will not refer to them verbatim. The main thrust of their submissions is referred to below.

Incident on 16 May 2018

The above-mentioned legal principles need to be considered in the context of the evidence in Mr Bavafa’s case. Unfortunately, Mr Bavafa’s case has become complicated because of the inconsistencies in the histories about what occurred in the incident on 16 May 2018. This may be due to English being his second language or because a confused recollection.
Dr Skapinker refers to difficulty in obtaining a clear history and he had the assistance of a Persian interpreter. Whatever the cause, I can only conclude that Mr Bavafa is an unreliable witness and, therefore, I prefer the accounts in contemporaneous documents, where they exist. Even Mr Bavafa’s solicitors have experienced difficulty in obtaining a history as their letter to Dr Bodel dated 11 July 2022 demonstrates, when they advise the history given initially to Dr Bodel is incorrect. His counsel, Mr Epstein, submits due to Mr Bavafa’s inconsistent histories weight should be given to the contemporaneous accounts.
Mr Epstein read out Mr Bavafa’s statements and the medical evidence in chronological order. I have summarised this evidence above. He submitted that Mr Bavafa is a poor historian as is evident in the uncertainty about the length of his employment as well as due to the differing histories about how the injury on 16 May 2018 occurred. Mr Epstein noted that Dr Taheri has recorded it as a twisting injury whereas Dr Calvache-Rubio as a lifting injury. Mr Epstein seems to place emphasis on the fact that Mr Bavafa did not know about the ability to claim workers compensation benefits until around the time he saw Dr Calvache-Rubio. However, to my mind, this does not explain why he did not tell his initial treating doctors about his neck being injured on 16 May 2018.
Dr O’Sullivan, at the same practice as Dr Taheri, saw Mr Bavafa a few days after the incident of 16 May 2018. On 21 May 2018 he refers to Mr Bavafa having posterior knee pain after a twisting injury. There is no mention of a neck injury. No requests for tests of the cervical spine were requested. Dr Powell refers to a twisting motion when Mr Bavafa was manoeuvring the tyre causing right knee pain. This part of the history is consistent with
[60] Davis v Council of City of Wagga Wagga [2004] NSWCA 34.
Dr O’Sullivan’s note. However, Dr Powell also has the history that Mr Bavafa said he had “pain at the neck region radiating to the right side of the neck and a feeling of tingling extending into both hands”. Even though various authorities have warned decision makers about relying on clinical notes[60], I find it is more likely than not on the balance of probabilities that Dr O’Sullivan would have recorded such symptoms in his notes had he been told of them because they are not trivial symptoms.
Furthermore, Dr O’Sullivan and Dr Taheri impress me as careful doctors, investigating complaints, such as requesting an MRI scan of the knee and giving a referral to Dr Zicat.
Dr Taheri also ordered an X-ray of the neck in early 2018 and recommended physiotherapy treatment. In addition, since May 2018 Dr Taheri treated Mr Bavafa for other medical conditions such as bursitis and dizziness and he recorded details of those complaints so he was not just focused on the knee injury. I consider it significant that Mr Bavafa had seen different doctors at the practice and yet none of them record any complaint of neck symptoms or injury or tingling in the arms or hands. Dr Monfared in the first WorkCover NSW certificate of capacity dated 24 January 2019 has the history that Mr Bavafa was lifting a big tyre at work and his leg slipped off and the right knee pain started. There is no mention of neck injury on this certificate.
Mr Stockley submitted that Mr Bavafa has not given evidence in his statements that he told Dr Taheri about his neck pain. I do accept that Mr Bavafa, had he been experiencing neck pain with tinging down the arms, would have told the doctors of such symptoms because he has informed them about other medical conditions. I consider in this case, for all of these reasons, that the contemporaneous clinical notes of Dr Taheri and his colleagues are more reliable than the accounts given at a later time by Mr Bavafa.
Therefore, I conclude that Mr Bavafa did not sustain a neck injury in the incident on
16 May 2018. As mentioned he has the onus of proof and applying Nguyen I do not feel an actual persuasion that he in fact did sustain an injury to his neck in the incident. I find an award for the respondent in relation to the allegation of injury to the cervical spine on
16 May 2018.
I find that all the doctors who have treated Mr Bavafa and provided medico-legal reports without the benefit of Dr Taheri’s notes have not based their opinion on the correct history when relying on the faulty history that a neck injury was sustained on 16 May 2018.

Section 4(b)(ii) injury

No doubt because of his solicitors’ concern about the history of injury, they have based their case on s 4(b)(ii) of the 1987 Act relating to aggravation etc of disease. However, the lack of complaint to his doctors about his neck while performing his employment with the respondent is a concern. As noted previously, the only mention of neck symptoms was in Janaury 2018 and in February 2018 with the history Mr Bavafa had neck pain for six months. Thereafter, no complaint of neck pain is documented until he consults the practitioners at the Workers Doctors practice on 31 Janaury 2019, at which time he ceases work.
The question as to what constitutes “aggravation, acceleration, exacerbation or deterioration” of a disease was dealt with in Federal Broom Co Pty Ltd v Semlitch[61]. In Austin v Director General of Education[62] Clarke JA, applying Semlitch, said a judge, faced with the potential application of the ‘disease’ provisions, should ask the following questions:
“(a)    Was the applicant suffering from a disease?
(b)     If so, was there an aggravation, acceleration, exacerbation or deterioration of it?
(c)     If so, was her (his) employment a contributing factor?
…”
[61] [1964] HCA 34; (1964) 110 CLR 626, Semlitch.
[62] (1994) 10 NSWCCR 373, Austin.
Deputy President Roche at [93] in Duncan v Roads & Traffic Authority of NSW and Anor[63] applied this test as an “appropriate starting point”.
[63] [2007] NSWWCCPD 113, Duncan.
Since the Workers Compensation Legislation Amendment Act 2012 the above references to “a contributing factor” would be replaced with a consideration of “main contributing factor”.
If these questions are determined in the affirmative, then an injury exists under s 4(b)(ii) of the 1987 Act.
The X-ray requested by Dr Taheri on 4 February 2018 is not before the Commission and it is not clear if it was performed. The request referred to “neck pain mostly on the left aspect[64]”.
[64] ARD p 408.
The MRI scan of the cervical spine dated 9 August 2019 refers to the presence of a tiny focal central disc protrusion at C4/5 abutting the anterior cord surface and a more significant abnormality at C5/6 with a disc protrusion mildly flattening the cord and extending to the foramen left side compromise in the C6 nerve[65].
[65] ARD p 40.
On 13 February 2020 another MRI scan of the cervical spine was performed referring to multilevel spondylitic changes with mild central canal stenosis at C6/7 and mild canal stenosis at C5/6 with minor bilateral foraminal narrowing[66].
[66] ARD p 359.
A bone scan on 3 March 2020 revealed moderate uptake at C5/6 endplates and mild at C6/7[67] and X-ray of the same date revealed degenerative changes at C5-7[68].
[67] ARD p 326.
[68] ARD p 325.
This radiology supports a finding that Mr Bavafa has a disease process in this cervical spine. Dr Khong expressed the view that it is likely Mr Bavafa had pre-existing degenerative changes. Dr Bodel in his report dated 13 July 2022 in answer to question 2 does refer to the presence of underlying constitutional degenerative process and in the answer to question 4 refers to Mr Bavafa having degenerative disc disease at C5/6 in the cervical spine. Dr Powell also refers to the presence of multilevel degenerate disease in the cervical spine. Dr Powell states “these changes are longstanding, are a degenerate disease process which is age and constitutionally related”.
Therefore, the first question posed in Semlitch is answered in the affirmative, that Mr Bavafa has a disease in his cervical spine.
The next question is: was there an aggravation, acceleration, exacerbation or deterioration of that disease? As Roche DP found in Duncan:
“Assistance is to be gained from the judgment of Burke J in Cant, in particular a passage where his Honour applied the judgment of Windeyer J in Federal Broom:
‘Windeyer J in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 639 posed the essential question of whether there has been a relevant aggravation, acceleration, exacerbation or deterioration of a disease as:
‘The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.’
His Honour had previously commented (at 637):
“I therefore find it impossible to conceive of the malady as distinct from its manifestations.
The thrust of these comments is that irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.” (at [17])”
I have found it difficult to determine if there has been aggravation etc of the underlying cervical disease because of the inconsistencies in histories given by Mr Bavafa. Based upon the treatment records of the various doctors at the Workers Doctors practice there seems to be evidence of an increased in symptoms from 31 January 2019, when he first consulted them. He had an injection to the cervical spine and on 29 October 2019 Dr Singh recorded that Mr Bavafa had a significant benefit from it. However, Dr Calvache-Rubio on
17 February 2020 recorded that he had frequent flare ups in the neck. Also, Mr Bavafa started to complain about needing to read his laptop lying down and difficulty bending his neck. On 5 June 2020 Dr Khong refers to worsening neck pain. However, such presentations can be contrasted with the assessment of Dr Powell who found inconsistency in his presentation and on physical examination. He found Mr Bavafa very symptom dominated. It is difficult to reconcile these presentations. However, Dr Powell does opine that the cervical disease will progress I find on the balance of probabilities that there has been a worsening or deterioration of his condition in the cervical spine.
The crux of the issue in dispute is the third question posed in Semlitch, was Mr Bavafa’s employment with the respondent the main contributing factor to such deterioration of his disease.
I have considered whether Dr Powell’s opinion should be accepted because he has attempted to consider the physical aspects of Mr Bavafa’s duties and how they would impact his cervical spine. However, a significant drawback of Dr Powell’s analysis is that he does not know that Mr Bavafa kept working after the May 2018 incident up to 30 January 2019.
Dr Powell did try to ascertain Mr Bavafa’s work history but Mr Bavafa told him that two weeks after the incident his general practitioner advised him to stop work and he has not returned. In addition, Mr Epstein submitted that Dr Powell did not refer to Mr Bavafa’s task of having to stack tyres. It is surprising that the respondent did not correct Dr Powell’s history about
Mr Bavafa’s work with it.
Even though Mr Bavafa gave a history to Dr Powell and Dr Bodel that he had no prior neck problems before May 2018, it is evident from Dr Taheri’s records that he did. On
4 February 2018 Dr Taheri records he has had neck pain for more than six months and he advised physiotherapy and an X-ray. There had been an entry on 20 January 2018 referring to a good range of neck movement but the consultation was about a persistent cough and its possible this could have been part of the examination for that condition. But certainly the entry on 4 February 2018 is evidence of a neck condition and is relevant. Dr Powell was not sent Dr Taheri’s records.
In Mr Bavafa’s second statement he says he started work for the respondent in 2017 and up until then he had no prior injuries. The start date for Mr Bavafa’s employment does not appear in the documents before the Commission. It would have been helpful if the respondent had put on evidence about his start date given the history he had neck pain for six months before February 2018. Also, as it is Mr Bavafa’s case one would assume he would have some record as to when he was first paid by the respondent. The taxation notices of assessment in the ARD do not shed light on the commencement date.
Dr Bavafa states he worked fulltime, six days per week. He initially worked at Bondi Junction and Gladesville and his duties included fitting tyres and making some tyre stacks. He says he was lifting the tyres off the stacks and pulling them off racks. He said he worked in a team doing this work. He says he was then sent to Artarmon and with no help he had to stack up to 200 tyres and that involved a lot of lifting which was done repetitively and quickly. He says he recalls complaining about his neck to his general practitioner but he kept working. He says he did tell his manager but the manager got sacked and nothing happened.
As the respondent has not put on any factual evidence to counter Mr Bavafa’s assertions about the nature of the work, I accept his account of his duties.
Mr Bavafa says after the injury in May 2018 he had two to three days off work and then kept working doing the same work and he was limping due to his right knee injury. He says at [15] “in addition, my neck was sore and it got worse. I was not seeing my GP”. However,
Dr Taheri’s practice records reveals consultations with Mr Bavafa took place on 23 and
25 May 2018, 31 July 2018, 19 and 24 January 2019. On none of those occasions does he mention his neck. On 24 January 2019 Dr Monfared records that “for last few months, apparently the pain fluctuates and gets worse with his physical work”. From the context, I infer this is a reference to the right knee. The doctor only examined his right knee. He only referred to the right knee on the medical certificate issued by him.

However, Dr Calvache- Rubio on 31 January 2019 did diagnose the presence of a cervical strain. He did so apparently unaware of the contents of Dr Taheri’s records. He states that Mr Bavafa stopped working on 30 January 2019. Mr Ng, physiotherapist, saw Mr Bavafa at this time and recorded the history as “bending and twisting and accumulating physical work for neck and back”.
It is necessary to consider in some detail the reports of Dr Khong, Dr Singh and Dr Bodel to ascertain if Mr Bavafa has sufficient evidence to discharge his onus of proof to establish that his employment with the respondent was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of his cervical disease. It is necessary to adopt a cautious approach given there is scant evidence of neck complaint to doctors while Mr Bavafa was actually working for the respondent.
Dr Khong was not aware of the neck complaint in February 2018 as he states in his report dated 10 September 2021 that it is likely that Mr Bavafa had some pre-existing asymptomatic degenerative changes in his cervical spine prior to his injury. He does not make it clear in this report what the “injury” is to which he refers. In his first report to Dr Calvache-Rubio dated 19 February 2020 he refers to “injury 1.5 years ago lifting tyres and twisted, hurt right knee…also experienced neck, bilateral shoulder and back pain”. This appears to be a reference to the incident on 16 May 2018 because of the history of “twisting” and “hurt right knee”. Dr Khong in his subsequent examination notes repeats the history taken in this first consultation.
Dr Khong in the report dated 10 September 2021 is asked by Mr Bavafa’s solicitors “whether employment is the main contributing factor to his injuries? If so, whether the nature and conditions of his employment resulted in injury to neck and lower back”. Dr Khong replied,
“Employment was the main contributing factor. Mr Bavafa did not have pain prior to his injury. The nature and conditions of his employment likely caused some acceleration of the degenerative changes in his cervical and lumbar spine. He also experienced and [sic] acute exacerbation at work due to his lifting injury.”
Dr Khong clearly is not aware that Mr Bavafa did not complain of an injury to his neck when being treated at Dr Taheri’s practice after the May 2018 incident. He is also not aware of the complaint of neck pain for six months recorded in February 2018. I find it is difficult to place weight upon Dr Khong’s opinion when he was unaware of such important information.
In this report dated 10 September 2021 Dr Khong states the nature and conditions of his employment likely caused some acceleration of the degenerative changes in the cervical spine. Dr Khong does not advise what duties he understands come within “the nature and conditions of employment” and he does not make it clear the duration of that employment. In this report Dr Khong states that Mr Bavafa “could not work after his injury and remained unable to work due to persistent pain”. This seems to be an incorrect understanding of Mr Bavafa’s history because he kept working after the injury to his right knee on 16 May 2018 and only stopped it would seem on 30 January 2019, and he has since undertaken further work elsewhere.
This is another reason why I find it difficult to rely on Dr Khong’s opinion when determining if Mr Bavafa has sustained an injury falling within s 4(b)(ii) of the 1987 Act. I find the doctor cannot reliably provide an opinion as to whether the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease in the cervical spine if he does not know there was no injury to the cervical spine on 16 May 2018, the onset of symptoms, the duration of work with the respondent, and the tasks performed during the employment.
This is not a criticism of Dr Khong as it appears the solicitors did not correct his understanding as with the letter they sent to Dr Bodel. In addition, the doctor does not go further to express an opinion that if there was such acceleration of the disease that it has caused the need for the proposed surgery.
Dr Singh has provided a report dated 16 September 2021 in which he states that Mr Bavafa has a work-related injury after lifting heavy tyres. He does not provide a date for this and it is consistent with Mr Bavafa’s statement where he says he had to stack up to 200 tyres and that involved a lot of lifting. The reason why I find it is unlikely to be a reference to the incident on 16 May 2018 is the doctor does not refer to lifting one tyre when changing it on a vehicle but Dr Singh uses the plural of lifting heavy tyres. Dr Singh then states, “there is a background of heavy lifting and repetitive bending and twisting as part of the nature and condition of his employment as a mechanic”. The fact the doctor has referred to Mr Bavafa as a mechanic instead of a tyre fitter is not determinative. Dr Singh in the next paragraph does refer to his employment as a tyre fitter and he adds the job involves squatting, bending, heavy lifting, pushing and pulling. Dr Singh expresses the opinion that his employment is the main contributing factor to his injury.
This account by Dr Singh does not relate the neck symptoms to the event on 16 May 2018. The record by the physiotherapist Ka Wai (Gary) Ng on 31 January 2019 has the injury history that Mr Bavafa is a tyre fitter, “bending and twisting and accumulating physical work for the neck”. So he seems to be referring to the nature and conditions of the employment rather than one specific event, although Mr Ng’s clinical entry does include “DOI:16/5/18”.
In Dr Singh’s clinical entry for 24 September 2019 when he first had a consultation with Mr Bavafa he referred to a work-related injury in August 2017 after lifting heavy tyres. Even though Dr Singh does not refer specifically to Dr Taheri’s notes, August 2017 is six months before February 2018 and so consistent with Dr Taheri’s record in February 2018 that Mr Bavafa had neck pain for six months.
In summary, Dr Singh, unlike Dr Khong, did not base his opinion on a frank injury having occurred on 16 May 2018, he considered of the onset of symptoms, the duration of work with the respondent, and the physical aspects of tasks performed during the employment.
I am satisfied that Dr Singh’s opinion is consistent with a finding that work with the respondent from 2017 up to 30 January 2019 is the main contributing factor to the aggravation of the cervical spine with his duties Mr Bavafa performed involving lifting of heavy tyres.
Dr Bodel’s opinion is more problematic because even in his report dated 13 July 2022 he relies on the history about the incident on 16 May 2018 causing neck pain. He states that Mr Bavafa states he went to see his general practitioner that day due to increasing pain in the right knee, neck, back and both shoulder girdles. And he had numbness and tingling into both hands involving all five digits of both hands[69]. In answer to question 1, Dr Bodel still states the injury to the neck was the result of the incident on 16 May 2018. I have explained why I have not accepted such a finding. Even though the solicitors told Dr Bodel about the contents of Dr Taheri’s records, Dr Bodel does not seem to have considered their significance, that there was no complaint to Dr Taheri and his colleagues about his neck or numbness and tingling into the hands. Dr Bodel does go on to state the neck problems are due to and aggravation of disease due to the nature and conditions of employment but he does not really give much explanation or go into as much detail as Dr Singh.
[69] ARD p 830.
Mr Stockley submitted that none of the doctors have considered the work that Mr Bavafa has subsequently performed for Jax Tyres. However at [24] of Mr Bavafa’s second statement he says none of the jobs including at Jax Tyres lasted very long and he is now doing casual food delivery. At [20] in his first statement he states he was not able to continue the work because it aggravated his symptoms. While it would have been ideal for this to have been addressed, I consider the evidence from Dr Singh does establish a deterioration of his cervical disease as a result of his employment with the respondent. In Kooragang Kirby P spoke of an injury setting in train a series of events. I find that the evidence of Dr Singh is consistent with the injury which I have found with the respondent setting in train the situation where Mr Bavafa would be likely to experience symptoms in his more recent employment if he did work of a similar physical nature and this seems borne out by him having to stop such work after a short period of time.
Notwithstanding my concerns about the lack of contemporaneous neck complaints and the confusion created by Mr Bavafa being an unreliable historian, largely based on Dr Singh’s opinion I find that Mr Bavafa has established the elements of s 4(b)(ii) of the 1987 Act. I accept the nature of his work with the respondent, in particular, lifting and stacking heavy tyres is the main contributing factor to the aggravation etc of the underlying cervical disease.

Surgery

In their initial reports both Drs Khong, Bodel and Powell queried whether there was any neurological compromise.
However, I note Dr Khong on 7 August 2020 had envisaged that Mr Bavafa may need a fusion at C5/6 and/or C6/7 but at that stage was recommending further conservative treatment but he did in December 2020 agree that the surgery was reasonably necessary but he only mentioned a C5/6 anterior cervical fusion.
Dr Singh has provided an opinion that Mr Bavafa has tried medication, physiotherapy and had an injection to the cervical spine without sustained relief. He opines that the proposed surgery is reasonably necessary. He adds it is an accepted and appropriate method of treatment where conservative treatment has failed and he sets out the purpose of the surgery. He says the fusion will stabilise the injured motion segment at C5/6 and prevent neurological deterioration and improve function and assist return to work. He addresses all the considerations in Diab and he adds that the costs of the surgery will offset by the improvement in function. Mr Bavafa has returned to some work as a food delivery driver.
Dr Singh was not aware of this due to the timing of his report but I accept the point he makes is still valid as the surgery will potentially assist him being fit for a wider range of employments.
Dr Singh has provided an updated estimate for the surgery on 19 April 2022 and he specifies in that quote the procedure is C5-7 anterior cervical decompression and fusion.
Dr Powell in his supplementary report stated:
“This procedure is aimed at improving stability at the C5/6 level (a bone scan did show increased uptake in the disc region), and decompression of exiting nerve roots to allow some recovery of neural function and reduction of associated symptoms that might arise from this level.
Determining whether such a procedure is indicated is a clinical decision between a patient and their treating surgeon, which will also encompass the potential risks, complications, and shortcomings of such a procedure and subsequent management that may be required.”
Dr Powell did not actually consider the C5-7 surgery proposed by Dr Singh. Dr Powell expressed the view that surgery will not alter the natural progression of the disease. But he adds if Mr Bavafa’s symptoms are principally arising from the C5/6 level, stabilisation and decompression has a reasonable potential to improve the symptoms. Dr Bodel also supports the surgery as being reasonably necessary treatment.
Deputy President Roche stated in Murphy that a worker only has to establish that the treatment is reasonably necessary as a result of the injury; that is, did the work-injury materially contribute to the need for surgery. I find Dr Singh’s opinion is consistent with the authority in Murphy, that the work performed by Mr Bavafa for the respondent did materially contribute to the need for the surgery, particularly when the effects of the injury were superimposed upon the underlying degenerative changes in the cervical spine, aggravating the same.
Accordingly, I find that the proposed surgery is reasonably necessary treatment as a result of the injury sustained in the course of employment with the respondent with the deemed date of injury of 31 January 2019.
I order that the respondent is to pay the costs of the proposed surgery and associated treatment pursuant to s 60 of the 1987 Act in accordance with the workers compensation gazetted rates.

[2023] NSWPIC 39

2 February 2023