Bellew v RSL Lifecare Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bellew v RSL Lifecare Ltd [2025] NSWPIC 399
APPLICANT:	Miriam Bellew
RESPONDENT:	RSL Lifecare Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	12 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation pursuant to section 60; injury due to nature and conditions of employment; worker employed in physical work over 22 years; whether employment was the main contributing factor to the injury; clinical notes revealed a quad bike accident resulting in a crush fracture to the spine; statement evidence revealed an acute onset of symptoms while dusting at home after employment had ceased; where neither incident was disclosed to the medicolegal experts or mentioned by the treating doctors; Held – AV v AW considered; while the nature and conditions of the worker’s employment may have contributed to the condition at her lumbar spine the worker failed to discharge her onus of establishing that employment was “the main” contributing factor to the injury; award for the respondent.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. Award for the respondent. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Ms Miriam Bellew (the applicant) was employed as a Care Service Employee by RSL Lifecare Limited (the respondent) between 2001 and 2023.
On 13 May 2024, the applicant submitted a claim for compensation in respect of an injury to her lumbar spine with referred pain into her hips and legs due to the nature and conditions of her employment.
Liability for the claimed injury was disputed by the respondent’s insurer in a dispute notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 28 May 2024.
That decision was maintained in further dispute notices dated 19 September 2024 and
27 November 2024.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute in the Personal Injury Commission on 17 April 2025.
The applicant seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for incurred medical and related treatment expenses including, the costs of a lumbar decompression at L4-5 and bilateral nerve root release surgery performed by Associate Professor Timothy Steel.

ISSUES FOR DETERMINATION

The parties agreed that the following issues remained in dispute:
(a) whether the applicant sustained an injury to her lumbar spine due to the nature and conditions of her employment with the respondent pursuant to s 4(b) of the 1987 Act, and
(b) whether the incurred medical and related treatment expenses claimed, including the lumbar decompression at L4-5 and bilateral nerve root release surgery performed by Associate Professor Steel, were reasonably necessary as a result of the injury pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared before the Personal Injury Commission (Commission) for conciliation conference and arbitration hearing on 22 July 2025. The applicant was represented by Mr John Gaitanis of counsel, instructed by Mr Robert Collison. The respondent was represented by Ms Michelle Campbell of counsel, instructed by Ms Maybelle Yang. A representative from the insurer was also present.
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 Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and all attachments;
(c)    documents attached to an Application to Lodge Additional Documents lodged by the applicant on 23 May 2025, and
(d)    documents attached to an Application to Lodge Additional Documents lodged by the respondent on 15 July 2025.
Neither party applied to adduce oral evidence or cross examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by her on 9 April 2025.
The applicant, who is 68 years old, stated that her work with the respondent was labour intensive. The applicant assisted residents with their activities of daily living including, using single lifters or stand-up lifters for transfers and repositioning residents in beds using slide sheets. This was often done in small spaces. Handling residents into lifters required strength and movement. For bedbound residents, two staff were required.
The applicant said she also supported residents who had suffered falls by using mechanical lifting devices. The applicant used wheelchairs and air chairs to mobilise residents, which required standing and heavy pulling and pushing. The applicant moved heavy equipment and medication trolleys through approximately 40 rooms, administering medications to clients and restocking the trolley.
The applicant said that over the course of her employment she had significant lumbar spinal pain with pain into her legs and hips. It was common knowledge in the workplace that the applicant had a back injury.
The applicant said that on 18 March 2024, whilst dusting at home, she developed acute, severe pain in her lumbar spine, legs and hips.
The applicant’s general practitioner, Dr Hannah Burn, referred the applicant to a neurosurgeon, Associate Professor Tim Steel, who referred the applicant for a number of scans. On 8 May 2024, Associate Professor Steel recommended a lumbar decompression at L4-5 with bilateral nerve root release.
The L4-5 discectomy and bilateral decompression was performed by Associate Professor Steel on 11 December 2024, funded privately.
The applicant said she had ceased working on 9 October 2023 to coincide with her 67th birthday. The applicant used her long service leave entitlements initially. The applicant had intended to return at a reduced workload, however, due to bullying and harassment by her managers, the applicant was forced to resign to prevent a psychological decompensation. The applicant confirmed that a severe onset of pain did not occur until March 2024, after which the claim for workers compensation was lodged.

Treating evidence

On 5 March 2008, a general practitioner at Old Linton Medical Practice, Dr Ray Burn, recorded:
“Sore feet and back - has tried \"crocs\" and they help. podiatry review is to occur”
Notes of a consultation with Dr Ray Burn on 15 June 2010 recorded:
“Fall from 4wb on Friday. Ambulance to Goulburn. Crush # L1.
Taking Endone 5/day. Certificate for 2 weeks.
Reason for visit:
Fracture – Vertebra”
Pain relating to the L1 fracture was noted on 24 June 2010.
Another general practitioner, Dr Jo Cookes, recorded on 3 July 2010 that the applicant had been off work following a fall from a quad bike and was due to return on 9 July 2010 but wanted an extension of two weeks.
A further script for Endone was issued on 14 July 2010. The applicant was noted to be taking 4 Endone daily.
On 15 July 2010, Dr Ray Burn reported that the applicant’s back pain continued but she could perform suitable duties with a review in another month.
On 23 Feb 2011, the applicant consulted Dr Burn again in relation to back pain.
On 28 September 2021 the applicant underwent an X-ray of the lumbar spine and right hip. The referral notes recorded:
“Cause for right hip and leg pain. Exclude central neural compression and hip pathology.”
On 29 September 2021, the X-ray was reported to show the crush fracture at L1 and mild height loss of most lumbar intervertebral discs with associated bony endplate spurring and prominent facet joint osteoarthrosis.
On 10 March 2024 the applicant attended a consultation at the Old Linton Medical Practice complaining of right hip symptoms. A history of “chronic” back pain was noted. It was also noted that the applicant had undergone a left hip replacement in November 2019.
On 25 March 2024, a clinical note was recorded as follows:
“Pt complains of pain left side severe in nature and rt side trochanteric bursitis and gluteal tendinopathy, lumbar degeneration as reported by the Physiotherapist
Pt give a past h/o diagnosis of spinal stenosis”
An X-ray of the thoracic and lumbar spine performed on 25 March 2024 noted a severe chronic wedge compression fracture at L1 and diffuse spondylosis most severe at L1-2 and L3.
Complaints of hip and back pain interfering with the applicant’s activities of daily living were reported on 2 April 2024. The applicant was advised to undergo further imaging to rule out central canal stenosis. The applicant was referred for an MRI ahead of a specialist appointment the next day.
A letter of referral to Associate Professor Steel from general practitioner, Dr Anjum Musa, dated 2 April 2024, noted that the applicant had been complaining of pain at both hips for a month and:
“She is complaining of moderate to severe back pain since 2 weeks interfering with her activities. X ray showed chronic wedge compression fracture and further imaging has been advised to rule out central canal stenosis”
On 19 April 2024, it was noted that the applicant had seen a neurosurgeon. The applicant was advised to undergo physiotherapy for her back pain.
The report of an MRI of the lumbar spine, dated 22 April 2024, identified pathology at multiple levels but particularly commented on severe canal stenosis at L4-5 and a left lateral disc extrusion at L3-4. It was noted that this had occurred since 2012. The referral notes recorded, “back pain four weeks”.
Associate Professor Steel reported on 8 May 2024 that he had reviewed the applicant and found severe lumbar canal stenosis at L4-5 due to a combination of broad-based disc bulging and lateral recess and ligaments thickening.
Associate Professor Steel referred to the MRI imaging performed on 22 April 2024 as showing high-grade canal stenosis at L4-5. It was noted that an L1 compression fracture was stable. There were “age-appropriate degenerative changes” at multiple levels.
Associate Professor Steel recommended a minimally invasive lumbar decompression at L4-5 and bilateral nerve root release.
A SIRA certificate of capacity was issued on 21 May 2024 by general practitioner, Dr Hannah Burn, describing a work injury diagnosed as severe spinal canal stenosis due to:
“Moving heavy machinery, bendinq, stooping, heavy lifting, patient transfer, twisting, pulling and pushing.”
The Certificate noted that the applicant had first been seen at the practice in relation to the injury on 25 March 2024.
On 22 May 2024, Dr Burn responded to a series of questions from the insurer in which she described the work injury as “high grade lumbar canal stenosis at L4 and L5.” Dr Burn said it was “likely” that repetitive activities such as bending, stooping, assisting with patient transfers, moving heavy machinery and pushing and pulling were the driver of the current spinal canal stenosis. Dr Burn said she was unaware of any pre-existing problems. Dr Burn said the neurological compression was not “age-related” in the way that degenerative changes such as facet joint osteoarthritis might be.
Dr Burn again responded to a series of questions from the insurer in a report dated 28 May 2024. On this occasion, Dr Burn diagnosed the work-related injury as severe canal stenosis at L4-5, left lateral disc extrusion at L3-4 and bilateral hip pathology. Dr Burn noted that the canal stenosis had been reported in 2012. Asked whether employment had been the main or a substantial contributing factor to the injury, Dr Burn responded,
“I am not in a position to state definitely whether employment was the main contributing factor. Given the nature of her employment perhaps it was a contributing factor.”
Asked on this occasion whether there were any pre-existing conditions, Dr Burn said that as per a lumbar MRI performed on 22 April 2024, the canal stenosis was reported in 2012. Dr Burn said she did not consider that there had been a work-related aggravation of a non-work-related condition.
Complaints of back pain were again noted on 5 August 2024. On 25 September 2024, the applicant reported discomfort and paraesthesia in her lower limbs as well as extreme pain when she couldn’t attend her last physiotherapy session.
On 14 October 2024, it was noted that the applicant was opting for surgery due to worsening symptoms and paraesthesia.
The applicant underwent a further MRI of the lumbar spine on 21 October 2024. This was reported to show:
“Increased posterior L4/5 disc protrusion with commensurate worsening of the severe central canal stenosis. New L5 superior endplate fracture.”
In a report dated 25 October 2024, Associate Professor Steel diagnosed a work injury on
13 May 2024 being an L4-5 disc protrusion and severe lumbar canal stenosis. Associate Professor Steel said the applicant reported increasing back and bilateral leg symptoms. An MRI scan was performed on 21 October 2024 showing the L4-5 disc protrusion had progressed. The applicant now had severe canal stenosis with compression of the nerve roots at the cauda equina. Associate Professor Steel recommended an L4-5 microdiscectomy with bilateral nerve root release.
On 11 December 2024, Associate Professor Steel reported that the applicant was admitted to St Vincent’s Private Hospital on 11 December 2024 for surgery.
On 17 December 2024, the applicant presented post-surgery and reported feeling better with no pain, tingling or numbness in her lower limbs.
Dr Musa provided a report (undated) for the applicant’s solicitor in which he agreed that the surgery proposed by Associate Professor Steel was reasonable and necessary. The applicant’s recurring presentations associated with worsening and persistent symptoms were interfering with the applicant’s quality of life. Dr Musa stated:
“Miriam’s employment as CSE which was physically demanding over the duration can be considered a significant contributing factor to her medical condition. Prolonged physical labour, cumulative trauma, postural stress are likely due to work. However, with Miriam’s age of the natural degenerative process can have an additional synergistic role.”

Dr Patrick

The applicant relies on a medicolegal report prepared by general, vascular and trauma surgeon, Dr WGD Patrick, dated 5 August 2024.
Dr Patrick took a history of the applicant’s employment that was consistent with the applicant’s statement evidence.
Dr Patrick referred to the radiological investigations, performed a physical examination and concluded that the applicant’s employment was the main contributing factor to her medical presentation and had rendered her incapacitated for work now and into the future.
Dr Patrick expressed the opinion that the applicant required the surgery put forward by Associate Professor Tim Steel and said that such surgery was reasonably necessary and as a result of the physically demanding nature of the applicant’s work over the course of some 22 years of employment.

Dr Smith

The respondent relies on a medicolegal report prepared by orthopaedic surgeon, Dr Anthony Smith, dated 14 August 2024.
Dr Smith took a history that the applicant was employed in personal care in a nursing home for about 10 years on the floor and then for 12 years on the floor and giving out medication.
The applicant reported a lower back problem caused by bending and lifting heavy equipment and transferring patients, which began before she left her employment. The applicant also reported pain in both hips, the left more than the right.
Dr Smith noted that the applicant had left hip replacement in 2019 with a good result.
Dr Smith referred to an MRI of the lower back from 17 April 2012, CAT scan of the lower back dated 22 March 2016, x-ray from 22 September 2021 and x-rays and MRIs of the lumbar spine performed in early 2024.
Dr Smith said the 2012 MRI images showed:
“There is disc space narrowing and dehydration of all the discs. There is an old compression fracture of L1 and the acute kyphus at T12-L1. There is retrolisthesis of L5-S1 and minimal disc bulge at that level. The endplates undulate. There is facet joint arthritis at every level.”
Dr Smith said the 2016 CAT scan showed:
“There is a wedge compression fracture of L1, with a 67% anterior height loss and kyphus at T12-L1. There is a small calcified sequestered disc fragment in the right lateral recess at T12 -L1. Facet joint arthritis is seen bilaterally at L1 - 2, with osteophytes occluding the outlets, without any definite neurological compromise. There is a broad annular bulge at L2- 3, with minor outlet stenosis and minor facet joint arthritis. At L3-4, there is a left lateral disc osteophyte complex and narrowing of the outlet. There is considerable facet joint arthritis at L4- 5, with no neurological compromise. At L5-S1, there is considerable annular bulge, with disc height loss, bilateral outlet narrowing, with possible irritation of the L5 nerve roots.”
Dr Smith diagnosed long-standing lumbar degenerative disease going back long before 2012 with investigations from time to time because of exacerbations.
With regard to causation, Dr Smith stated,
“She attributed the low back problems to the nature of her employment. There is no history to indicate when she sustained the injury at L1. The changes there are
post-traumatic, which date back many years prior to 2012. It is not uncommon for people to have practices of vertebral bodies without too much in the way of symptoms. Oftentimes, they do not have investigations and then the fractures are found some years later. The T12-L1 fracture is not causing any symptoms now.
We all get spinal degenerative disease. It is part of the normal ageing process. Looking at her 2012 images, she has possibly somewhat more severe spinal degenerative disease than average, but there is no post-traumatic lesion seen in those images.
…
There is no relationship between the pathology seen in her x-rays, CAT scans, and MRIs, that one could suggest is a result of her employment.”
With regard to treatment, Dr Smith stated,
“There is no treatment she can have that will prevent her from having back pain from time to time, whether she works or whether she does not work. She requires no treatment now for any employment exacerbations that might have occurred before January 2024.”

Respondent’s submissions

The respondent submitted that employment was not the main contributing factor to the applicant’s injury.
The respondent observed that Dr Hannah Burn had been asked to provide a report on
28 May 2024 and was not able to provide a definitive opinion on the causal relationship between the severe canal stenosis and the applicant’s employment.
Dr Burn also noted that the canal stenosis had been reported in 2012. The respondent noted that the applicant had been in a quad bike accident in 2010 which was not mentioned by Dr Burn and which had not been mentioned to the medicolegal experts.
The respondent submitted that the quad bike accident was significant because the clinical notes gave little insight into any employment related pain or injury. It would usually be expected that reports of symptoms would appear in the clinical records during the period of employment. The quad bike accident and complaints shortly after that were the only reports of lumbar pain during the period of the applicant’s employment until after she ceased work.
The quad bike accident resulted in a fracture at L1 and the applicant was taking Endone for a period of time. The respondent referred to the clinical records following the quad bike accident and noted that the applicant was off work for approximately one month. The ongoing prescription of Endone demonstrated the severity of that injury.

The respondent submitted that the presence of canal stenosis in 2012 was consistent with the evidence relating to the quad bike accident.
Dr Smith was not told about the quad bike accident but did have the 2012 MRI and his findings were said to be consistent with there having been a traumatic accident. Dr Smith was also not told about the incident in 2024 when dusting at home. Dr Smith said there was longstanding lumbar degeneration going back to 2012 and the injury at L1 was post-traumatic.
Although Dr Smith noted that the applicant had somewhat more severe spinal degenerative disease than average, that could be accounted for by the quad bike accident. Dr Smith found no relationship between the pathology and employment. The evidence regarding the quad bike accident cemented Dr Smith’s opinion.
The next complaint about back pain post-dated the applicant’s employment on 10 March 2024. That clinical note referred to a history of chronic back pain, however, the only other references to back pain in the clinical notes related to the quad bike accident.
The respondent noted that the applicant had provided an earlier statement on 25 October 2024 which was described in the dispute notice 27 November 2024 but not in evidence before the Commission.
According to the dispute notice, on 18 March 2024, the applicant was dusting at home when she developed acute, severe pain in her lumbar spine, both legs and hips. The respondent submitted that there was a non-work related aggravation of the applicant’s lumbar spine condition at home, months after the applicant had resigned. The claim for workers compensation came even later in May after the applicant had seen Associate Professor Steel.
The respondent observed there was a material gap between the cessation of employment and the first reports of pain. There was a non-work related incident which appeared to have aggravated the lower back and then a subsequent claim. There was a background 2010 quad bike accident and an absence of any other treating evidence recording back symptoms during the period of employment. The respondent observed that the applicant retired in December 2023.
Dr Burn was not prepared to say definitively that employment was the main contributing factor to injury.
The respondent noted that in his first report, Associate Professor Steel had observed that the applicant had “age-appropriate degenerative changes at multiple levels”. The evidence suggested a subsequent further deterioration as a result of which he changed the proposal for surgery intervention. The respondent submitted that the deterioration and need for surgery all followed the non-work related aggravation in March 2024.
The respondent submitted that Dr Patrick did not have all the facts when he gave his opinion. Dr Patrick did not know about the quad bike accident or the incident at home due to dusting. Dr Patrick did not have the 2012 MRI or Dr Smith’s report. The respondent submitted that it would be difficult to accept Dr Patrick’s opinion in the absence of consideration of that other evidence.

Applicant’s submissions

The applicant observed that the full clinical notes only became available late in the Commission proceedings and well after the insurer’s dispute notices.
The applicant submitted that the respondent’s submissions about the effects of the quad bike accident were made without expert medical opinion to support them. It was not permissible to speculate that the applicant’s symptoms and the need for surgery related to a quad bike accident or a dusting incident. While acknowledging that she bore the onus of proof, the applicant submitted that the Commission would not give weight to the respondent’s submissions.
The applicant observed that there had been a complaint of sore feet and back pain in 2008 well before the quad bike accident. The applicant’s evidence was that she had back pain for 22 years.
The applicant observed that the nature of her employment was described in her statement. There was no controversy that the applicant performed heavy work. In circumstances where the applicant suffered from “chronic” back pain, it was not surprising that she did not go to the doctor every time she experienced pain.
Dr Smith took a history of the applicant’s lower back problems commencing before she left employment. Dr Smith recorded that the applicant’s symptoms gradually got worse with the passage of time and investigations were undertaken from time to time because of exacerbations including, the MRI in 2012, the CT scan in 2016 and X-ray in 2021.
Dr Smith own opinion was the L1 fracture was not the cause of her problems. The problem was at L4-5. Dr Smith commented that the pathology at the applicant’s lumbar spine was more severe than average. The applicant’s condition was graver than would ordinarily be found in other members of the community. This was consistent with the performance of 22 years of arduous work.
The applicant referred to the decision in Murphy v Allity Management Services Pty Ltd[1] and observed that there only had to be a material contribution from employment to the need for surgery. Work did not need to be the only factor contributing to the need for surgery.
[1] [2015] NSWWCCPD 49.
The applicant noted that Dr Patrick’s report was prepared before the surgery took place. Dr Patrick took an accurate account of the applicant’s work duties. Dr Patrick gave the opinion that the work that the applicant had been undertaking, over so many years, which was arduous and physical, had caused her current condition. He said the applicant clearly needed the spinal surgery.
The applicant observed that as the treating surgeon, Associate Professor Steel was focused on treatment rather than issues of causation or liability. Associate Professor Steel was also apparently of the opinion that the condition involved a “work injury” having regard to his report of 25 October 2024.
The applicant observed that Dr Burn had provided two different opinions on causation. The questions put to Dr Burn were not before the Commission. Ultimately, the test of causation was a legal question for the Commission.
The applicant suggested that the evidence of a dusting event arose well after the applicant had sought medical advice about her back and surgery had been recommended.

Respondent’s submissions in reply

The respondent submitted that it was not correct that that applicant had already seen Associate Professor Steel when the dusting event occurred. The applicant had given statement evidence that the dusting event occurred on 18 March 2024. Associate Professor Steel’s first report was dated 8 May 2024.
The respondent said that its submissions were supported by the medical evidence in the clinical notes.
The onus was on the applicant to make her case. The dusting and the quad bike incidents were issues the applicant ought to have addressed. They were only revealed in clinical notes produced in response to the Direction for Production.
The respondent submitted that the single complaint of back pain in 2008 was not sufficient to discharge the applicant’s onus.
The applicant’s submissions only drew the Commission’s attention to that single clinical note. This was consistent with there being a lack of complaint about work-related symptoms. This was said to be difficult to reconcile with the applicant’s statement that it was common knowledge that she had a back injury.
The respondent submitted that there was an issue regarding the credibility of the applicant’s evidence having regard to her failure to mention the quad bike and dusting issues to the doctors. These were not things that would be forgotten. The applicant had a traumatic injury to her back. While it caused an L1 fracture, as a matter of common knowledge, such an injury could have broader ramifications down the track. It was important for all the doctors to address that accident. In view of this omission in the evidence, it would be difficult for the applicant to discharge her onus of establishing that her employment with the respondent was the main contributing factor to an injury.

FINDINGS AND REASONS

Whether the applicant has sustained an ‘injury’?

Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act. The term ‘injury’ is relevantly defined in s 4 as it applies to this case as:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means 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 of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
In AV v AW[2] Snell DP at [65]-[78] discussed the authorities on the “main contributing factor” test in s 4(b) of the 1987 Act and noted:
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.”
[2] [2020] NSWWCCPD 9.
There is no dispute in this case that the applicant has symptomatic pathology at her lumbar spine for which the surgery performed by Associate Professor Steel was an appropriate form of treatment. The dispute in this case centres on the causal relationship between the condition at the applicant’s lumbar spine and the nature and conditions of her employment with the respondent.
The applicant’s evidence with regard to the nature and conditions of her employment as a Care Service Employee is set out in her statement evidence. That evidence is unchallenged and has been consistently described in the medicolegal evidence. There is no question that the applicant’s work, which was performed over a period of some 22 years, involved physical and, at times, heavy work which required frequent bending, standing and pushing and pulling of heavy objects.
The applicant’s claim receives support from Dr Patrick who has concluded that the applicant’s employment was the main contributing factor to her presentation. Dr Patrick said the surgery recommended by Associate Professor Steel was reasonably necessary as a result of the physically demanding nature of the applicant’s work over the course of some 22 years of employment.
The applicant’s case also receives some support from her general practitioners. Dr Musa prepared a report for the applicant’s solicitor in which he said that the applicant’s employment, which was physically demanding over a considerable duration of time, could be considered a significant contributing factor. Dr Musa stated generally that prolonged physical labour, cumulative trauma and postural stress were likely due to the nature of the work. Notably, however, Dr Musa did not express the opinion that employment was “the main” contributing factor. Dr Musa suggested that the applicant’s age and the natural degenerative process could also play a synergistic role.
Dr Hannah Burn has provided two reports providing slightly differing opinions on the causal relationship between the applicant’s employment and her spinal condition. In her first report to the insurer, Dr Burn expressed the view that it was “likely” that repetitive activities such as bending, stooping assisting with patient transfers, moving heavy machinery and pushing and pulling were the driver of the spinal canal stenosis. Dr Burn said at that stage she was unaware of any pre-existing problems and suggested that the neurological compression was not age-related.
Less than a week later, however, Dr Burn provided another response in which she commented that canal stenosis had been reported in 2012. Asked whether employment had been the main or a substantial contributing factor to the injury, Dr Burn said she was not in a position to state definitely whether employment was the main contributing factor although she agreed that it was perhaps a contributing factor.
The reference by Dr Burn to canal stenosis being present in 2012 appears to be a reference to an MRI taken in 2012 which is not in evidence before the Commission. The MRI is, however, described in the medicolegal report from Dr Smith. Dr Smith said the MRI showed disc space narrowing and dehydration of all discs and facet joint arthritis at every level. There was, at that date, retrolisthesis of L5/S1 and a minimal disc bulge at that level. The 2012 imaging also showed a compression fracture of the L1 and acute kyphosis at T12-L1.
Dr Smith described the compression fracture at L1 as traumatic pathology but indicated he was not aware of its origin.
The clinical records from the applicant’s general practitioners at Old Linton Medical Practice, which were attached to the Application to Lodge Additional Documents lodged by the respondent on 15 July 2025, reveal the origin of the L1 fracture. It is apparent that sometime in the week prior to 15 June 2010, the applicant was involved in a fall from a quad bike resulting in a crush fracture. The applicant was transported by ambulance to Goulburn and was, as at 15 June 2010, taking five Endone per day. The applicant was certified as unfit for work for at least a month and, by 14 July 2010, was noted to still be taking four Endone daily.
The applicant’s evidence is completely silent as to this event, nor was it described by either of the medicolegal experts. Neither Dr Burn nor Dr Musa have commented on the event in their reports, nor was Associate Professor Steel apparently aware of it. I accept that it involved a significant traumatic injury to the applicant’s spine causing incapacity for work and a need for strong pain relieving medication for at least one month.
There is no radiological imaging or other medical records from the time of the quad bike accident available in the evidence. It is not known whether the accident affected parts of the applicant’s spine other than L1. It is also not known how long the applicant continued to feel the effects of the injury or how they were treated. There was a consultation with Dr Ray Burn on 23 February 2011 in relation to back pain. It is also apparent that the applicant was referred for further imaging in 2012. The clinical circumstances in which that referral was made are unknown.
It is true that there is a single reference to foot and back pain prior to the quad bike accident in March 2008. It is also apparent that the applicant was referred for a CT scan of her lumbar spine in 2016 and an X-ray of her lumbar spine in 2021, all of which occurred during the period of the applicant’s employment. The circumstances prompting the radiological investigations are, however, unknown and may be associated with the applicant’s experience of significant hip pathology around the same time.
There is no reference to a work-related cause for the applicant’s back symptoms anywhere in the treating evidence until May 2024, when the first SIRA Certificate of Capacity was issued.
Worsening symptoms in the back and hips were noted in the clinical records from March 2024 onwards. The clinical records during March and April 2024 gave no indication as to the cause of the increase in symptoms. The letter of referral from Dr Musa to Associate Professor Steel dated 2 April 2024 noted that the applicant had been complaining of moderate to severe back pain for two weeks. The referral notes of the MRI performed on
22 April 2024 mentioned back pain for four weeks.
The treating evidence therefore records a significant increase or intensification of the applicant’s lumbar symptoms from mid-March 2024 onwards. That intensification of symptoms continued and in fact deteriorated with the involvement of new pathology and symptoms such as paraesthesia in the lower limbs by October 2024, when the ultimate recommendation for surgery was made.
Neither the treating evidence nor the medicolegal evidence makes any reference to a precipitating event accounting for the rapid deterioration in the applicant spinal condition from March 2024 onwards. The applicant’s statement evidence does, however, reveal that on
18 March 2024, while dusting at home, the applicant developed acute, severe pain in her lumbar spine, legs and hips. By that date, the applicant had not worked for the respondent for some five months. The applicant’s own evidence was that she ceased working on
9 October 2023 to coincide with her 67th birthday then used her accrued leave entitlements before resigning.
There is, therefore, evidence before the Commission of two non-work related events precipitating acute increases in lumbar symptoms, neither of which have been addressed by either of the medicolegal experts or the applicant’s treating doctors. Taken together with the absence of any recorded complaints of work-related lumbar symptoms during the period of the applicant’s employment, these omissions in the evidence are highly problematic and, in my view, undermine the reliability of the medical opinions on causation.
As a matter of commonsense and experience, I would be prepared to accept that the applicant’s prolonged and repetitive physical work for the respondent may have contributed to the condition at her lumbar spine. This proposition was accepted by Dr Musa, Dr Burn, Dr Patrick and possibly also Associate Professor Steel.
The test posited by s 4(b) of the 1987 Act, however, requires consideration of the competing causal factors, both work and non-work related, and a determination as to the one “main” contributing factor to the injury.
There is before me no expert evidence before me as to the contribution of the quad bike accident or the dusting incident to enable a proper weighing of the contributing factors. The applicant’s age and the natural degenerative process have also been identified by the general practitioners and Dr Smith as contributing factors.
While I accept that the quad bike incident appears to have been primarily responsible for pathology at L1, whereas it was pathology at L4-5 which prompted the need for surgery, I am not prepared to find, on the current state of the evidence, that the accident had no impact on other parts of the applicant’s spine. Even accepting that the fracture at L1 was no longer symptomatic, the contribution of the dusting incident remains unresolved.
For these reasons, I am not satisfied that the applicant’s employment with the respondent was the main contributing factor to either the contraction of the condition at the applicant’s lumbar spine or an aggravation of the condition at the applicant’s lumbar spine.
I am not satisfied that the applicant has discharged her onus of establishing, on the balance of probabilities, that employment was the main contributing factor to her injury for the purposes of s 4(b) of the 1987 Act.

There is no evidence before me of a “personal injury” arising out of or in the course of employment for the purposes of s 4(a) of the 1987 Act.
As the applicant has not established a compensable injury pursuant to s 4 of the 1987 Act, it is not necessary to consider whether the surgery performed by Associate Professor Steel was reasonably necessary as a result of injury.
There will be an award for the Respondent.

[2025] NSWPIC 399

12 August 2025