Bennell v Willoughby City Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bennell v Willoughby City Council [2022] NSWPIC 52
APPLICANT:	Cameron Bennell
RESPONDENT:	Willoughby City Council
MEMBER:	Michael Wright
DATE OF DECISION:	8 February 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act) for cost of proposed cervical surgery as a result aggravation of degenerative disease condition as a result of heavy lifting at work for the respondent from 1997; initial presentation for treatment arising from unrelated circumstances of awkward sleeping in a foldout hospital bed while staying with seriously ill son in ICU; consideration of factual and medical opinion; deemed date of injury for proposed surgery pursuant to section 16 of the 1987 Act; Held - employment was the main contributing factor in the aggravation of the disease condition; award for the applicant.
DETERMINATIONS MADE:	1. Right C6/7 foraminotomy and posterior discectomy proposed by Dr Parkinson (the proposed surgery) is reasonably necessary as a result of aggravation of underlying degenerative cervical spine disease condition as a result of the applicant’s employment with the respondent, with injury deemed to have happened on 24 September 2019.
ORDERS MADE:	2. The respondent to pay the costs of and related to the proposed surgery in accordance with section 60 of the Workers Compensation Act 1987. 3. Liberty to apply in respect of deemed date of injury.

STATEMENT OF REASONS

BACKGROUND

This is an application by Cameron Bennell (the applicant) for the cost of right C6/7 foraminotomy and posterior discectomy proposed by Dr Parkinson (the proposed surgery) as a result of aggravation of degenerative cervical spine disease condition arising out of or in the course of the applicant’s employment with Willoughby City Council (the respondent).
In a section 78 notice dated 29 September 2020 the respondent disputed that the applicant’s cervical spine condition was a disease to which employment was the main contributing factor to the contraction or aggravation of the disease as required by section 4(b) of the Workers Compensation Act 1987 (the 1987 Act). Also disputed was whether the proposed surgery was reasonably necessary. In a section 287A review notice dated 24 August 2021 the respondent maintained its previous decision.

PROCEDURE BEFORE THE COMMISSION

The applicant was represented at the conciliation/arbitration hearing of this matter on 18 November 2021 by Mr Carney of counsel, instructed by Ms Tavianatos, solicitor, and the respondent by Mr Saul of counsel, instructed by Ms Maiuolo, solicitor.
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.
Prior to the conclusion of the hearing, leave was granted to the applicant to amend the deemed date of injury to be claimed as 24 September 2019.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 11 November 2021 and attached documents, and
(d)    Application to Admit Late Documents dated 12 November 2021 and attached documents.

Oral evidence

There was no application to cross-examine the applicant nor to give oral evidence.

The applicant’s statement

The applicant provided a statement dated 22 February 2021.
The applicant stated that he has been employed as a Bushland Supervisor for the respondent since 1997.
He stated that his employment ranged from performing physically demanding duties to administrative and clerical duties. The applicant said that prior to sustaining injury, he performed about 50% of his duties in the field, while the other 50% was conducted at his desk in the office.
The applicant stated that his field duties required him to respond to residents’ requests, organise various teams of volunteers and supervise volunteers and organise events.
He stated that he would perform tasks such as chain sawing trees, being on call for emergencies, and doing jobs on weekends or late at night if required.
The applicant also stated that he was required to perform a lot of manual labour, lifting and carrying various objects, removing debris or doing physical activities in the bushland. He said that he was required to do a lot of bending and manoeuvring as well as planting trees and weeding and also prepare and undertake bushfire hazard reduction burns. He was often required to navigate uneven ground and walk for extensive periods up-and-down inclines, steps and bush tracks. The applicant also described the other 50% of his duties in the office.
The applicant stated that both his more physical and administrative duties puts strain on his neck and back in different ways and that both the physical and administrative duties impacted his neck and back all day long.
He stated that in 2002 he experienced intermittent back pain as a result of his physical employment and he was treated conservatively while still continuing to work. He also said that in 2014 while at work in the office the chair on which he was sitting broke and he fell to the floor and experienced back pain. The applicant also referred to a 2017 right knee injury when he fell while on uneven ground in the bush. I note at this point that the applicant did not rely upon this history in relation to the back and right knee, as the claim in these proceedings was in respect of the neck. In my view references the applicants back and right knee are not relevant.
The applicant also stated that prior to the incident in September 2019 he “constantly struggled with niggles and pains” in his back and his neck. He stated that “this has been quite common for me in my working life, as I have only ever done manual labour work, and pain throughout the back and neck comes with the territory”.
The applicant stated that usually the pain would last for some days or weeks “but would eventually go away with some rest or with a bit of conservative treatment”. He stated that “if the pain was dull or aching” he “would usually just press on with the job and rest at the end of the day”.
He stated that in September 2019 his son was admitted into Children’s Hospital to undergo surgery and he was in hospital for about two weeks and during this time he took carers leave to be with his son and to support his partner. The applicant stated that over that two-week period he and his partner took turns staying in hospital overnight every second night and slept on a foldout bed by his son’s side. The applicant stated that near the end of his stay at the hospital he experienced some neck pain radiating to his right shoulder but did not think much of it at the time.
The applicant stated that on 24 September 2019 he attended a consultation with his general practitioner (GP), Dr Thai, and told her that he had experienced some neck pain following his stay at the hospital. He said that he underwent an MRI of his cervical spine on 1 October 2019 and on 4 October 2019 he underwent a cortisone injection into the cervical spine area but with no improvement.
The applicant stated that he attended a sports physician, Dr Mason, on 17 October 2019. Dr Mason referred the applicant to Dr Parkinson, neurosurgeon.
The applicant attended a consultation with Dr Parkinson on 18 October 2019. He said that he told Dr Parkinson that he had performed manual labour all his working life and had suffered intermittent back and neck pain as a result and he also told Dr Parkinson of his hospital stay. The applicant said that at that stage he believed he was improving and Dr Parkinson recommended continuation of conservative treatment.
The applicant said that on 12 December 2019 he consulted Dr Parkinson and at that time he was progressing well with conservative treatment and had “return to work on light duties”. He said that Dr Parkinson recommended continuation of conservative treatment and to return in February 2020 with a progress MRI. The applicant said that on 4 February 2020 he underwent a further MRI of his cervical spine and on 20 February 2020 he attended a further consultation with Dr Parkinson. The applicant said that he recently consulted Dr Wong, neurosurgeon, whom the applicant said had agreed with the opinion of Dr Parkinson that the only option is surgery.
The applicant stated that he continues to experience symptoms including significant pain in his right shoulder, inability to raise his right arm above the steering wheel when driving due to pain, inability to perform any lifting particularly if over shoulder height, radiation of the pain down the right arm and into his fingers and sleep disturbance due to pain. He said that he continues to work for the respondent in the role of Bushland Supervisor, although his duties are less strenuous than they were, but they still cause him trouble. He stated that he just perseveres with the pain.

Treating GP documents

The applicant’s treating GP, Dr Thai, provided a number of documents.
Attached to the ARD were handwritten responses of Dr Thai to questions put to her by the workers compensation insurer. These were responses dated 15 November 2019 and 20 November 2019. These documents will be discussed below.
Attached to the Reply was a certificate of capacity dated 25 October 2019 and also clinical notes for the period 24 September 2019 to 25 October 2019. The certificate of capacity dated 25 October 2019 will be discussed below.
The surgery consultation notes of Dr Thai dated 24 September 2019 noted that the applicant had been staying in hospital with his son for nearly three weeks, was sleeping on a foldout bed and was finally back in his own bed since last night. Dr Thai noted persisted neck and upper back pain and also that the applicant had seen a physiotherapist and had a massage. Dr Thai noted radicular symptoms in the right arm in a C6 distribution. Dr Thai noted that the applicant was taking ibuprofen and paracetamol. On examination, Dr Thai noted a full range of movement in the neck and no cervical midline tenderness, no upper limb weakness and currently the applicant was asymptomatic but there was pain in the axilla, posterior arm and lateral forearm and some numbness/pins and needles down to his thumb. Impression was noted as C6 radiculopathy and the reason for visit as cervical radiculopathy. Management was described as additional Lyrica for pain relief as well as Mobic, with heat pack, massage and exercises. Dr Thai noted that if there was no improvement by the end of next week the applicant was to have an MRI and review to consider a cortisone injection. Prescriptions were printed for Lyrica and Mobic and imaging request for an MRI scan cervical spine with three weeks history of right-sided C5/6 radiculopathy.
In a surgery consultation note dated 2 October 2019, Dr Thai noted that symptoms were about the same as last week and Lyrica was not helping much with the pain. Dr Thai reviewed an MRI of the cervical spine which was noted as a right paracentral disc extrusion at C6/7 causing severe right foraminal narrowing and exiting right C7 nerve root impingement. Dr Thai suggested cortisone injection into the right C7 nerve root, physiotherapy, analgesia and heat pack. The reason for the visit was described by Dr Thai as C6/7 disc extrusion causing C7 nerve root impingement. An imaging request was issued for CT guided Perry neural injection at the right C7 nerve root with a four week history of right-sided cervical radiculopathy symptoms secondary to sleeping in different beds, poor posturing.
In a surgery consultation note dated 8 October 2019, Dr Thai noted no improvement in cervical radiculopathy, “not able to work” and discussion of referral to sports physician for rehabilitation.
In a surgery consultation note dated 17 October 2019, Dr Thai noted the suggestion by the sports physician to see a neurosurgeon and the applicant would see a neurosurgeon the next day. Dr Thai noted that a complicating factor was that the neurosurgeon “does not operate in the public so cost is an issue”. Dr Thai noted that there was thinking (although I note that it is unclear as to who was doing that thinking) of pursuing this under WorkCover “as degeneration may be related to work with the hospital stay a trigger for the radiculopathy symptoms”. Dr Thai noted that the applicant felt he was otherwise slowly getting better and “woke up over the weekend not in pain, able to go to work and sit at a desk”. It was noted that alternatives were discussed – a second cortisone injection and seeing a neurosurgeon “who works in the public”.
In a surgery consultation note dated 25 October 2019, Dr Thai noted that the applicant had seen the neurosurgeon “but given clinical improvement so far, would like to trial conservative measures for a few more weeks”. Dr Thai noted that it was understood that if there was no improvement in consideration be given to surgery “which is what the surgeon is suggesting will likely require”. Dr Thai also noted “discussed WorkCover… Incident in 2014 where fell from chair in the office, filed report, no residual deficits. Heavy lifting throughout course of work. Does back burning in the council locality”. The reason for visit was noted as “workers compensation” and a NSW WorkCover certificate of capacity was issued.
I note that attached to the ARD were clinical notes printed on 23 October 2020 and headed “Patient Health Summary” of the medical practice “Your Doctors”, in which Dr Thai practised. Listed in that health summary were investigation requests commencing on 25 September 2017 were not related to the applicant’s cervical spine condition, other than MRI scan reports of the cervical spine dated 1 October 2019 and 4 February 2020 and of the right shoulder dated 7 June 2021. The latter report was one requested to exclude symptoms emanating from the right shoulder, as suggested by Dr Cochrane and Dr Endrey-Walder.

Dr Mason

The only document before me was a handwritten clinical note of Dr Mason dated 17 October 2019. He noted the applicant was a Bushland Supervisor and a history of four weeks ago of “sleeping in hospital [with] son”. He noted a period of time off work of two to three weeks and the applicant had now returned to work. He noted a cervical disc protrusion C6/7 and C7 nerve root wallowing his note of the referral by Dr Thai. He noted a plan of a referral for opinion.

Dr Parkinson

Dr Parkinson, neurosurgeon, provided a number of reports dated 18 October 2019, 12 December 2019, 23 December 2019, 19 January 2020, 20 February 2020, 2 March 2021, 15 April 2021 and 7 May 2020.
In his report dated 18 October 2019, Dr Parkinson noted that the applicant is a Bushland Supervisor who presented with an acute right C7 radiculopathy and a right C6/7 disc herniation. He noted a history that the applicant “has done a lot of heavy lifting work over the course of his working life and has had intermittent low back and neck pain from this.” He noted that “after an awkward sleeping in September 2019 he noticed additional pain in the neck radiating into the right into scapular region radiating into the posterior shoulder, triceps and extensor forearm”. He noted that the pain had been improving but there was some weakness in the triceps and wrist and finger extension which is gradually improving but is quite weak in the dominant arm. Dr Parkinson noted moderate neck pain but not severe and that the applicant was back at work although finding it somewhat difficult.
He noted an MRI of the cervical spine of 1 October 2019 which showed “an acute sequestrated posterolateral/foraminal disc herniation on the right at C6/7 causing severe compression of the right C7 nerve root”.
Dr Parkinson noted that the applicant felt his power and pain was improving and given that it was four weeks after the onset of the symptoms it would be reasonable to continue with conservative management for a couple of weeks. He agreed that “there is a high likelihood that intervention may be required”.
Dr Parkinson also noted that “he also has some mild deterioration in the C5/6 disc, again consistent with doing a lot of heavy work and heavy lifting in the past.” Dr Parkinson was of the view that he would recommend surgery if the applicant did not continue to improve by way of a dorsal micro foraminotomy with posterior discectomy.
In his report dated 12 December 2019, Dr Parkinson reviewed the applicant and noted that he had previously seen the applicant on 18 October 2019 with right C7 radiculopathy and right C6/7 sequestrated disc herniation and a moderate motor C7 radiculopathy with some C7 sensory loss over the hand. Dr Parkinson stated “this has all resolved and he C7 myotomal power is normal. He is clearly doing a lot better and he is back at work with no problem”. Dr Parkinson recommended continuation of conservative management with review in February 2020 with a progress MRI.
In a report dated 19 January 2020 to State Cover, Dr Parkinson appeared to be responding to questions put to him which were not before me. However, he stated that “I am unable to provide a comment on whether or not the nerve compression has been precipitated by sleeping in an abnormal position or whether it is an aggravation of previous neck issues.”
Dr Parkinson also stated “I note a history of intermittent back and neck pain from him when I saw him on 18 October 2019, and it certainly may be an exacerbation of a pre-existing problem”.
In a letter to StateCover dated 20 February 2020, Dr Parkinson requested approval for the applicant to undergo right C6/7 foraminotomy and posterior discectomy at the Prince of Wales Private Hospital.
In a letter to the applicant’s solicitors dated 2 March 2021, Dr Parkinson referred to the history given in his report of 18 October 2019. In this regard, Dr Parkinson noted “he has had gradually worsening neck and arm pain in a right C7 distribution”.
Dr Parkinson provided a diagnosis of “right C6/7 subacute disc herniation with compression of right C7 nerve root”.
Dr Parkinson also stated that “the heavy work he is undertaking on behalf of Willoughby Council is a substantial contributing factor to his cervical spine injury, as he has done a great deal of heavy lifting at work and his employment has been his primary physical efforts”. Dr Parkinson stated that “in my opinion surgery is reasonably necessary as a result of the work-related injury”.
In a letter to the applicant’s solicitors dated 15 April 2021, Dr Parkinson referred to a follow-up email in respect of his report of 2 March 2021 and stated “on question 4 I said my opinion is that the client’s employment was the main contributing factor to the aggravation of this disease condition”.
In a letter dated 7 May 2020 to Dr Mason, Dr Parkinson noted that on review of the applicant his arm symptoms were unchanged and “he requires the surgery”.

Dr Endrey-Walder

Dr Endrey-Walder, general and trauma surgeon, provided medico-legal reports to the applicant’s solicitors dated 15 April 2021, 22 July 2021 and 30 September 2021.
In his report dated 15 April 2021, Dr Endrey-Walder noted a history of employment with the respondent as a Bushland Supervisor from about 1997 and his subsequent daily work over the years was quite physically demanding with about 50% of his work time being hands on “physical chores” and 50% administrative duties. He noted that the applicant stated that over the years he would intermittently have some neck pain that most of specially pain at the right shoulder but this “never materially interfering with his capacity to perform his full duties”. Dr Endrey-Walder noted clinical notes mentioning back pain in 2007 associated with the nature and condition of his daily physical chores and in 2014 the collapse of a chair underneath him while in the office. The applicant and submissions did not rely upon these specific incidents and in my view they are not relevant to the outcome of this matter.

Dr Endrey-Walder noted that in September 2019 the applicant’s son was admitted to the Children’s Hospital for a period of close to three weeks on account of severe, life-threatening complications following surgery and whilst his son was in hospital the applicant and his wife would alternately stay with him overnight, necessitating sleeping on a fold out, rather uncomfortable bed. Noted the history that near the end of the hospitalisation of his son the applicant began experiencing neck pain radiating to the right shoulder and he “thought it was just a bit of the niggle” and he was more concerned with his son’s condition. Dr Endrey-Walder noted that following his son’s discharge from hospital the applicant sought medical attention and consulted Dr Thai on 24 September 2019.
Dr Endrey-Walder noted the clinical records of Dr Thai and Dr Mason summarised above. He also noted the letters and reports of Dr Parkinson summarised above, including the initial report of 18 October 2019 but not the report of 2 March 2021. Dr Endrey-Walder also noted a letter of Dr Parkinson dated 1 November 2019 in which he quoted Dr Parkinson as stating “symptoms are due to a background of degenerative changes to his cervical spine which are exacerbated by his work”. He also noted the reports of the MRI scans on 1 October 2019 and 4 February 2020.
Dr Endrey-Walder was of the opinion that the applicant had a degree of underlying C6/7 intervertebral disc damage as a consequence of “the nature and conditions of his many years of work” at the respondent and sleeping on a foldout bed for a number of weeks while his son was in hospital “precipitated pressure on the C7 nerve root”. Dr Endrey-Walder was of the opinion that sleeping on a foldout bed in hospital “simply precipitated symptoms, impacted on the underlying disc pathology” and was not the cause of the disc damage or foraminal stenosis. He also believed that an MRI scan of the right shoulder would be appropriate to exclude significant shoulder pathology that may contribute to ongoing symptoms.
Dr Endrey-Walder believed that “the nature and conditions is the main contributing factor to your client’s cervical spine pathology and the associated symptoms and functional deficit”.
In his report of 22 July 2021, Dr Endrey-Walder noted the MRI scan of the right shoulder 7 June 2021 and was of the view that pathology in the right shoulder was insufficient to cause the right arm symptoms.
Dr Endrey-Walder noted in the report of 2 March 2021 of Dr Parkinson that the applicant had gradually worsening neck and arm pain in a right C7 distribution and confirmed diagnosis of right C7 subacute disc herniation with compression of right C7 nerve root. Dr Endrey-Walder also noted Dr Parkinson’s opinion that the heavy work that the applicant was undertaking on behalf of the respondent is a substantial contributing factor to the cervical spine injury, as the applicant had done a great deal of heavy lifting at work and his employment has been his primary physical effort. Dr Endrey-Walder commented on this opinion that he, Dr Endrey-Walder, had acknowledge that at least 50% of the applicant’s daily work was physically demanding and that on account of this over the years he would intermittently have some neck pain but most especially pain at the right shoulder. Dr Endrey-Walder also noted a report of Dr Parkinson dated 15 April 2021 in which employment was the main contributing factor to the aggravation of the applicant’s disease condition. Dr Endrey-Walder was of the opinion that the applicant’s pathology at the C6/7 level of the cervical spine was the cause of the ongoing right shoulder/arm pain and the sleepover at the hospital was an aggravating and exacerbating factor of the underlying spondylotic condition in the cervical spine.
In his supplementary report of 30 September 2021, Dr Endrey-Walder noted a report of Dr Parkinson dated 20 February 2020 in which he quoted Dr Parkinson as stating that “the repeat MRI scan still shows a significant foraminal stenosis at C6/7 due to the acute cervical disc herniation and I think surgery is required as his as his arm power is still significantly weaker…” Dr Endrey-Walder was of the opinion that the recommendation for surgery by Dr Parkinson was “reasonable and under the circumstances necessary”.

Dr Cochrane

Dr Cochrane, neurosurgeon and spinal surgeon, provided medicolegal reports to the respondent’s solicitors dated 9 July 2020, 16 September 2021 and 28 October 2021.
In his report of 9 July 2020, Dr Cochrane recorded a history that in September 2019 the applicant’s son was very ill in the intensive care unit in hospital and he had frequently stayed with his son and the applicant at that time “awoke with pain in his right neck and trapezius and shoulder region which appeared to be radiating down from his neck”. Dr Cochrane noted that the applicant’s son was in intensive care for more than two weeks and after about one week of this the applicant said that his symptoms worsened. Dr Cochrane noted treatment by the GP and Dr Parkinson. Dr Cochrane noted that the applicant was “of the opinion that physical work at the workplace has contributed to his symptoms, with what he described as very repetitive over 30 years including weeding, bending, and picking up branches”.
In response to a question as to whether he accepted that the worker suffered a cervical spine injury “at work in September 2019”, which is currently contributing to the applicant’s symptoms, Dr Cochrane responded that there was no discrete or acute work-related event occurring in September as the applicant was not at the workplace but staying with his son. Dr Cochrane was of the opinion that “given the abrupt onset of symptoms during this hospitalisation stay in September 2019, that there was an acute foraminal disc protrusion developing on the right at C6/7 in the face a pre-existing bout previously asymptomatic cervical spondylosis changes” and he believed that the applicant’s cervical spine condition was non-work-related acute foraminal right C6/7 disc protrusion. I note that a history of an injury at work in September 2019 was contrary to the history noted by Dr Cochrane above, and indeed is not the applicant’s case, and Dr Cochrane pointed out that the applicant was not at the workplace in September 2019. I also note that history of asymptomatic cervical spondylosis changes was not the history recorded by Dr Parkinson and Dr Endrey-Walder.
In response to a question which commenced with the proposition that “the worker says the heavy nature of his duties at work in September 2019 caused an aggravation of an underlying cervical spine disease condition” and which requested whether Dr Cochrane believed “the worker’s employment on or around September 2019 was the main contributing factor to the aggravation of any pre-existing condition in the cervical spine”, Dr Cochrane stated that “there is no evidence provided to me that the worker’s employment at or around September 2019 was the main contributing factor to his aggravation of a pre-existing condition”.
Dr Cochrane stated that
“it is reasonable to conclude that the nature and activities at the workplace, over a prolonged period of time may have [sic] cervical degeneration. As such, I am of the opinion that employment may be a contributing factor to the presence of pre-existing cervical spondylosis, but which was asymptomatic as far as I could ascertain”.
Dr Cochrane was of the view that the contemporaneous clinical notes of Dr Thai, did not suggest a pre-existing symptomatic condition in the cervical spine and there was no evidence to suggest that there was an acute workplace incident that occurred in September 2019, as the applicant was not at the workplace at that time, factors which led Dr Cochrane to the opinion that the worker’s employment on or around September 2019 was not the main contributing factor to any aggravation of a pre-existing condition.
Dr Cochrane also was of the opinion that it was reasonable to conclude that “employment over a prolonged period of time may have contributed, to some degree, to degeneration of the cervical spine” but it was not “as far as I could ascertain, the main or most significant contributing factor to the acute emergence of symptoms in September 2019”. He was of the opinion that the applicant’s cervical spine condition “as far as the acute presentation with right brachialgia and C7 radicular pain” was caused by factors unrelated to employment with the respondent, that is sleeping on a makeshift bed for more than two weeks. He noted the report of Dr Parkinson of 19 January 2020.
Dr Cochrane was of the opinion that the proposed surgery may be reasonable treatment for the medical condition but it was not primarily or substantially for treating a compensable work-related injury. He was of the opinion that there were moderate prospects at best of resolving the pain. He wondered whether an anterior cervical discectomy and fusion at C6/7 may be a more appropriate surgical procedure given the significant neck pain and right brachialgia.
In his supplementary report of 16 September 2021, Dr Cochrane noted that he had been provided with reports of Dr Parkinson dated 2 March 2021 and 15 April 2021 and Dr Endrey-Walder dated 15 April 2021 and 22 July 2021 and a statement from the applicant dated 22 February 2021.
Dr Cochrane stated that his opinion had not changed as he believed that the applicant suffered a pre-existing “but previously asymptomatic (or minimally symptomatic)” cervical spondylosis primarily at C6/7. He noted the applicant’s statement as to niggles and pains in his back and neck prior to September 2019 and his history that it had been quite common in his working life as he had only ever done manual labour work and pain throughout the back and neck came with the territory. Dr Cochrane appeared to accept this history and stated that “the claimant may have suffered intermittent neck symptoms which he attributed to a long history of manual work…” He was of the opinion that that there was a non-work-related aggravation of a pre-existing condition which was “either asymptomatic or intermittently and briefly symptomatic on occasion, not unusual with the type of work that the claimant performed” and he believed that “an acute disc protrusion developed in a non-work-related fashion, during September 2019 when sleeping in the hospital” and this resulted in the emergence of C7 radiculopathy. He stated that his opinion had not changed having regard to the additional material provided.
Dr Cochrane was of the opinion that the applicant’s cervical spine condition was a degenerative condition of gradual onset “with a non-work-related temporary aggravation due to foraminal disc protrusion which has subsequently regressed”. He agreed that for the greater part the applicant’s cervical spine condition was a disease of gradual onset, being “a bony foraminal narrowing seen at C6/7 on MRI studies of the cervical spine post-event, and with a disc protrusion that was seen in the foramen on C6/7” on the MRI of 1 October 2019 which subsequently regressed on the later MRI scans. He was of the opinion that the primary condition was persisting. This was a degenerative condition, being the bony foraminal narrowing on the right at C6/7, resulting in nerve compression.
In response to a question which noted the test in section 4(b)(ii) and quoted part of the decision of AV v AW[1], Dr Cochrane responded that he had reviewed the case authority and the MRI evidence of bony foraminal narrowing on the right at C6/7 and “a transient disc protrusion in the foramen also on the right at C6/7” he was not of the opinion that employment was the main contributing to factor to the contraction or aggravation of the degenerative disease. He stated
“I fully concede that employment is a contributing factor to progressive degeneration on the right at the C6/7 level, and this could be considered a substantial contributing factor, but not the main contributing factor as would be defined in the relevant legislation. As such, employment may be a substantial (not main) contributing factor to the contraction or aggravation of the degenerative disease of the cervical spine, but is not the main contributing factor to the foraminal disc protrusion on the right at C6/7 which was the primary reason (in my opinion) for the emergence of right brachialgia and radicular symptoms in the upper limb.”
[1] [2020] NSWWCCPD 9
He was of the opinion that the surgery recommended by Dr Parkinson “is entirely clinically reasonable for bony foraminal narrowing on the right at C6/7 with a degree of C7 radicular problems”. However, he was of the opinion that while clinically reasonable, the proposed surgery was “not for the main treating a work-related injury” as
“this is because I do not consider there has been a discrete work-related injury that has occurred and accepting there may have been some gradual work-related aggravation of cervical spondylosis, this would not be considered the main contributing factor to the need the surgery, as a chronic degeneration and non-work-related factors are more substantial”.
In his report of 28 October 2021, Dr Cochrane was of the opinion that the bony foraminal narrowing is a chronic, degenerative condition and “this would have predated the work injury of September 2019 and it would best be considered a ‘constitutional’ or degenerative condition and a progression of spondylotic changes in the cervical spine” and “bony foraminal narrowing, a very long-standing and slowly evolving process, is not traumatic lesion”.
Dr Cochrane was also of the opinion that the sleeping on the foldout bed in September 2019 was not the main contributing factor to the contraction or aggravation of the bony foraminal narrowing but likely resulted in an acute foraminal disc protrusion “which has radiologically regressed”.
Dr Cochrane was of the opinion that “although it is very reasonable to conclude that employment may have aggravated chronic bony foraminal narrowing to some degree” he could not consider that it was the main contributing factor to the contraction or aggravation of the degenerative process and “the degenerative process likely evolved over many years predated the subject event”. Dr Cochrane noted that he understood that the applicant had commenced employment with the respondent some 21 years prior to the subject incident, “as a landscaper, and as such it is reasonable to conclude that the physical activities in his work role may have contributed to some degree to the advancement or progression of the degenerative changes in the cervical spine”. He noted that he had not been provided with any objective evidence to suggest there was any significant injurious event nor pain suggestive of cervical radiculopathy prior to the subject event of September 2019. Dr Cochrane commented that “there remains an underlying degenerative condition… which may still provide some symptomatology to the claimant, but which I cannot relate to employment in the absence of any material suggesting a discrete or repetitive work injury”. I note at this point that the last quoted comment appears to me to be somewhat at odds with Dr Cochrane’s earlier opinions, unless it is understood that he was referring to the underlying condition itself, rather than the aggravation. In any event, I note that Dr Cochrane did have material suggestive of a repetitive work injury, that being the history that he took from the applicant in his initial report.

FINDINGS AND REASONS

This application turns on the question as to whether the applicant’s employment duties with the respondent were the main contributing factor to the aggravation of an underlying cervical spine disease condition and whether the applicant had discharged the onus in establishing that was the case.
The applicant’s description of his duties in his statement was not in dispute. The applicant also stated that prior to September 2019 he constantly struggled with niggles and pains in his neck and back, such pain coming “with the territory” of his manual labour work. He said if the pain was dull or aching he would just press on with the job. Dr Endrey-Walder recorded that the applicant said that he had intermittent neck pain over the years, especially at the right shoulder. The respondent submitted that there was no evidence corroborating the applicant’s statement and no evidence as to any complaints he made prior to September 2019.
However, in civil law corroboration is neither a technical term nor a legal requirement.[2] There was no evidence to the contrary in respect of the applicant’s statement nor in relation to any complaints that he made prior to September 2019. In particular, none of the expert medical opinion, including that of Dr Cochrane, took issue with the history that was recorded. The extent of the histories recorded is discussed below. In my view, this supports the applicant’s statement, particularly in the context of a diagnosis of a progressive disease condition and transient acute symptoms in September 2019, which will be discussed below.
[2] Chanaa v Zarour [2011] NSWCA 199 at [86]; discussed in Australian Traineeship System v Turner [2012] NSWWCCPD 4.
I accept the applicant’s statement in respect of the manual duties that he performed with the respondent as a Bushland Supervisor from 1997 until September 2019. I accept that those manual duties were heavy work involving heavy lifting, as characterised by Dr Parkinson, and physically demanding, as characterised by Dr Endrey-Walder.
I have considered the weight to be given to the applicant’s statement regarding his neck symptoms prior to September 2019. The history of prior neck issues was noted in Dr Thai’s letter of 20 November 2020. Dr Cochrane recorded a history of the nature of work activities including weeding, bending and picking up branches repeatedly over approximately 30 years, as well as the sleeping arrangement while his son was in hospital. Dr Cochrane initially did not take a history that the applicant had intermittent neck pain while working prior to September 2019, but he also noted the history recorded by Dr Parkinson of heavy lifting over the course of his working life and he had intermittent low back and neck pain from this. Dr Cochrane in his later report of 16 September 2021 also noted the applicant’s statement which provided the history of neck symptoms prior to September 2019 although Dr Cochrane did note that he believed that there was no objective evidence of symptoms prior to September 2019. The history of prior neck symptoms was first noted by Dr Thai on 17 October 2019, at the same time as the issue of the cost of neurosurgical treatment was noted. However, Dr Thai, and later Dr Parkinson, Dr Endrey-Walder and Dr Cochrane, accepted the applicant’s history, or at least did not dispute it, in this regard. I have weighed the absence of contemporaneous evidence prior to September 2019 with the circumstances of this case. The applicant said that the niggles and pain came with the territory and he would press on with his job of many years with the respondent. In my view, these factors weigh against the absence of prior evidence and are persuasive. On balance, in my view, the applicant had intermittent neck pain over the years prior to September 2019 while performing his manual duties with the respondent. I accept the applicant’s statement.
The clinical notes of Dr Thai, in my view, indicate that the symptoms that the applicant had been experiencing since September 2019 were improving. The last clinical entry that is before me was dated 25 October 2019, in which clinical improvement was noted with a trial of conservative measures for a few weeks. The reports of Dr Parkinson dated 25 October 2019 and 12 December 2019 indicate improvement on 25 October and then resolution on 12 December 2019 of the right C7 radiculopathy and right C6/7 sequestrated disc herniation. In my view this is indicative that when the applicant experienced the pain and symptoms following the period of sleeping awkwardly in the hospital in September 2019, there was a period when the applicant became acutely symptomatic, as Dr Endrey-Walder described it. By the time Dr Parkinson recommended surgery, there was a “subacute” disc herniation with compression of the right C7 nerve root, as diagnosed by Dr Parkinson in his report of 2 March 2021. Dr Cochrane described the right C6/7 disc protrusion as “transient”.

In my view, these matters support the applicant’s submission that the acute symptoms had receded but those acute symptoms had drawn medical attention to the underlying pathology. I accept that submission.
Dr Thai in her handwritten letters of 15 November 2019 and 20 November 2019 explained that although symptoms were apparent on 19 September 2019, there was no specific incident on that day and she believed that the applicant’s symptoms were due to a background of degenerative changes to the cervical spine exacerbated by the applicant’s work. In response to a question which posited that heavy lifting is not a requirement of a Bushland Supervisor, Dr Thai noted that although heavy lifting was not specified as the job requirement, the applicant over the course of employment with the Council carried equipment. She also noted an incident in 2014 which is in respect of the applicant’s back and not otherwise relevant. In response to a question from the respondent, Dr Thai was of the opinion that degenerative changes occur with ageing but the process may be accelerated by manual labour and poor posture associated with work and while difficult to ascertain she believed that work was contributory. Dr Thai noted that she did not have historical MRI scans for comparison and did not think that degenerative changes were only accelerated by activities relating to employment but may also be related to ageing wear and tear and nonwork related activities. In my view, these letters indicate that Dr Thai considered that there was a relationship between the applicant’s employment in respect of heavy lifting at work and poor posture at work, and an exacerbation of a degenerative condition of the cervical spine, although not in the terms as required by section 4(b)(ii), and also an acceptance of the history provided by the applicant.
In my view, although he noted the history recorded by Dr Parkinson, of intermittent neck pain from heavy lifting work over the course of the applicant’s working life, Dr Cochrane did not engage with that history in his report of 9 July 2020 in reaching his opinion contrary to the applicant’s case in that report, as he had not recorded history to that effect from the applicant. Dr Cochrane did not note in that report the history recorded from the applicant whether or not he was asymptomatic in his cervical spine prior to September 2019. Dr Cochrane did note at a later stage in that report that the applicant was “asymptomatic as far as I could ascertain”, but this in my view is insufficient in respect of the history, particularly in circumstances where in his next report Dr Cochrane appeared to accept the applicant’s statement, including his constant struggles with niggles in his neck and back prior to September 2019.
However, Dr Cochrane his report of 16 September 2021 did consider the applicant’s statement of 22 February 2021 and the history of prior intermittent neck pain in the course of manual labour work. Dr Cochrane was of the opinion that there was a degenerative condition of gradual onset of the cervical spine with the non-work-related temporary aggravation in September 2019 due to a disc protrusion which had subsequently regressed. Dr Cochrane conceded that employment was a contributing factor to the progressive deterioration, representing a gradual degenerative disease process, on the right at C6/7, which could be considered a substantial contributing factor but not the main contributing factor as defined. He was of the opinion that employment may be a substantial, but not main, contributing factor to the contraction or aggravation of the degenerative disease of the cervical spine but not to the right foraminal disc protrusion at C6/7. As noted above, Dr Cochrane in his report of 16 September 2021 was of the view that imaging had shown that the right C6/7 protrusion had regressed and he was of the opinion that it was transient.
In my view, other than on the question of the main contributing factor, the opinion of Dr Cochrane in his report of 16 September 2021 was not at odds with the opinions of Dr Parkinson and Dr Endrey-Walder. Dr Endrey-Walder was of the opinion that the applicant had a degree of underlying C6/7 intervertebral disc damage as a consequence of the nature and conditions of his many years work at the respondent and that this employment was the main contributing factor to the cervical spine pathology. Dr Parkinson was of the opinion that the heavy work involving heavy lifting at work with the respondent was a substantial contributing factor to the right C6/7 subacute disc herniation with compression of the right C7 nerve root and that the applicant’s employment was the main contributing factor to the aggravation of that disease condition.
In his report of 16 September 2021, Dr Cochrane stated that that there was MRI evidence of bony foraminal narrowing, a chronic degenerative condition, on the right at C6/7 and a transient disc protrusion in the foramen also on the right at C6/7. He was not of the opinion that employment was the main contributing factor to the contraction or aggravation of the degenerative disease but he “fully concede[d] that employment is a contributing factor to progressive degeneration on the right at the C6/7 level, and this could be considered a substantial contributing factor, but not the main continuing factor”.
Dr Cochrane in his supplementary report of 28 October 2021 thought it was “very reasonable to conclude that employment may have aggravated chronic bony foraminal narrowing to some degree” but he did not consider this to be the main contributing factor to the contraction or aggravation of the degenerative process. Dr Cochrane also concluded that the underlying degenerative condition, which may still provide some symptomatology, could not be related to the applicant’s employment in the absence of any material suggesting a discrete or repetitive work injury. This last point in my view applies to the underlying condition itself, rather than the aggravation, otherwise his conclusion contradicts his earlier conclusion in the same report, as noted above and indeed to his report of 16 September 2021. Dr Cochrane did note in his report of 16 September 2021 the applicant’s statement, but Dr Cochrane did not explain why he was prepared to accept the applicant’s statement in reaching his opinion in the report of 16 September 2021, but not in the report of 28 October 2021. That statement did not suggest a discrete work injury but in my view he did appear to accept that the applicant may have suffered intermittent neck symptoms which the applicant attributed to a long history of manual work. Even if it is accepted that Dr Cochrane is correct in his view that there was no objective material suggesting a “repetitive work injury”, in my view Dr Cochrane’s reasoning process is not assisted. First, as noted above, this becomes a self-contradictory opinion. Second, the expression of that opinion referred to an underlying degenerative condition but it did not specifically address the issue of aggravation. Third, while a “repetitive work injury” may have been noted as a history in his initial report, Dr Cochrane noted the applicant’s statement in his later report, in which there is a history of manual duties at work over a long period of employment with the respondent.
The respondent submitted that the opinion of Dr Cochrane in his report of 28 October 2021 could not be viewed as support for the proposition that the statutory test, the main contributing factor, had been met. I accept that submission.
However, after conceding that the acute right C6/7 disc protrusion following the hospital sleeping arrangements in September 2019 had regressed and was transient in effect, Dr Cochrane did not point to any other non-work-related factor which would account for the aggravation of that disease process, which he did appear to accept in other parts of his reports. His somewhat contradictory view that the underlying degenerative condition which may still provide some symptoms that he could not relate to the applicant’s employment was based on the premise of material suggesting a discrete or repetitive work injury. In the same report Dr Cochrane also observed that the disc herniation noted in Dr Parkinson’s report of 18 October 2019 had regressed and the need for surgery of the acute disc herniation had resolved. While Dr Parkinson in the report of 18 October 2019 referred to an acute sequestrated disc herniation, in his report of 2 March 2021 he diagnosed a subacute disc herniation. Dr Cochrane did not engage with the latter diagnosis in providing his opinion that the disc herniation had regressed on the most recent MRI scans and with it the need for acute surgery. I do not prefer the reports and opinions of Dr Cochrane, other than in respect of the acute transient period following the September 2019 hospital sleepover, which in my view is consistent with Dr Parkinson’s opinion and the resolution of the acute disc herniation over time noted in the reports of Dr Parkinson and Dr Cochrane’s discussion of the MRI scan reports.
The respondent also challenged the reasoning and the evidentiary foundations of the reports of Dr Parkinson and Dr Endrey-Walder.
The respondent criticised Dr Parkinson’s opinion on causation. It was submitted that his opinion and report of 18 October 2019 lacked reasoning and fell foul of authority such as Makita (Australia) Pty Ltd v Sprowles[3] (Makita) and Hancock v East Coast Timber Products Pty Limited[4] (Hancock). The respondent submitted that Dr Parkinson’s short report of 19 January 2020 was a very weak opinion in the absence of radiology before September 2019 which would indicate whether there was relevant pathology or such symptoms were a muscle strain. The respondent also submitted that the report of 2 March 2021 was a bare ipse dixit in respect of Dr Parkinson’s opinion on causation and that, if Dr Parkinson’s reference to gradually worsening neck and arm pain was with respect to the applicant’s working life, then there was no evidence of that proposition. It was also submitted in respect of the same report that Dr Parkinson did not explain the kind of lifting and how often such lifting took place and whether the type and frequency of such lifting would have an impact on the disc herniation. It was submitted that, following the decision of Dawson and others t/as The Real Cane Syndicate v Dawson[5] (Dawson), an industrial deafness case, the duration, nature and extent of the relevant activities outlined in the worker’s statement should be put to the medical expert for a proper basis of their opinion, rather than speculation and lack of explanation in the reports of Dr Parkinson and also Dr Endrey-Walder.
[3] [2001] NSWCA 305.
[4] [2011] NSWCA 11.
[5] [2008] NSWWCCPD 35.
I do not accept these submissions in relation to the reports and opinion of Dr Parkinson.
It depends upon the circumstances of each case as to what is required by way of an explanation for the basis of the expert’s opinion.[6] In my view, the circumstances in this case as it is now before me, are the views of Dr Cochrane and Dr Endrey-Walder that the applicant’s manual duties as a Bushland Supervisor were a substantial contributing factor to the aggravation of the underlying condition. Although Dr Cochrane did not agree that the applicant’s manual duties were the main contributing factor to that aggravation, he did take note of the applicant’s statement in his report of 16 September 2021 in reaching his opinion. Additionally, I have accepted the applicant’s statement, which in my view forms the basis for an acceptance of Dr Parkinson’s opinion based upon his description of the applicant’s duties of a Bushland Supervisor as “heavy lifting at work”.
[6] Adler v Australian Securities and Investments Commission [2003] NSWCA 131 (Adler) at [631].
In my view, Dr Parkinson and Dr Endrey-Walder . An expert does not have to “offer chapter and verse in support of every opinion”[7]. As was observed by Spigelman CJ in Australian Security and Investments Commission v Rich[8] (Rich):
“An expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated. Austin J acknowledged this factor. There will be occasions in which matters of this character are proper to be explored during the course of cross-examination for the purposes of determining the weight to be given to the opinion. The mere fact that there must have been use of some extraneous material, even of the extensive character identified by his Honour, does not of itself necessarily lead to a conclusion that the evidence is of low probative value. In many cases the opinion will plainly be capable of being supported by the underlying facts proven or assumed. If so, the fact that a broader range of information may originally have been availed of would not necessarily detract to any significant degree from the probative value of the evidence given. Any such conclusion must depend on the particular circumstances of the matter under consideration.”
[7] Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [89] (Sydneywide).
[8] [2005] NSWCA 152 at [170].
I do not accept the proposition, as submitted by the respondent, that Dawson is applicable in this matter. As conceded by the respondent, Dawson is an industrial deafness matter. Indeed, in Dawson it was observed[9] that the nature and quality of the evidence needed for a worker to succeed, in the context of a case respect of section 17 of the Workers Compensation Act 1987, will depend on the circumstances of each case.
[9] At [43].
As noted above, the underlying facts were the duties that the applicant described in his statement, which I have accepted. In my view, these duties were heavy lifting duties, as described by Dr Parkinson. It is not necessary that there be an exact correspondence between the assumed facts upon which the opinion of Dr Parkinson is based on the facts proved in this case[10]. Similarly, his description of the episode in September 2019 as “an awkward sleeping” was in my view sufficient for his consideration of the applicant’s history.
[10] Hancock at [88].
In respect of his report of 19 January 2020, in my view the exacerbation of a pre-existing problem to which Dr Parkinson referred, must be viewed in light of his immediately preceding response the same letter declining to provide comment in relation to sleeping in an abnormal position. That is, when considered with a history of intermittent back and neck pain that Dr Parkinson recorded, the reference was to the applicant’s employment with the respondent. In my view, this is not a weak opinion as in my view Dr Parkinson is entitled to rely upon his specialist neurosurgeon expertise in reaching his opinion with reference to a history of intermittent back and neck pain a history that I have accepted in accepting the applicant’s statement above.
In my view, while Dr Parkinson in his reports provided a brief description of “heavy lifting work”, and a history of intermittent back and neck pain, the history that he noted was a fair climate for Dr Parkinson to provide his opinion in this matter[11]. In my view, Dr Parkinson did sufficiently explain the basis of his opinion. He said that the applicant “has done a great deal of heavy lifting at work and his employment has been his primary physical efforts” and that the heavy work with the respondent was a substantial contributing factor to the cervical spine injury. This in my view is the scientific basis for the conclusion that Dr Parkinson reached and there was no failure to comply with the second limb of Makita[12]. The conclusion to which I refer was Dr Parkinson’s opinion that employment was a substantial contributing factor.
[11] Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85.
[12] Hancock at [88].
In respect of Dr Parkinson’s opinion that employment was the main contributing factor, in my view there was not a direct expression of his reasoning process. I note in his report of 15 April 2021 he referred to stating in his previous report of 2 March 2021 that he was of the opinion that the applicant’s employment with the main contributory factor to the aggravation of this disease condition. Dr Parkinson did in fact state that employment was a substantial contributing factor in his report of 2 March 2021 and it was the report of 15 April 2021 in which he stated that employment was the main contributing factor.
However, when his reports are considered as a whole, in my view Dr Parkinson’s reasoning process is one in which he took the history described above, did not at any point attribute the applicant’s condition to the “awkward sleeping”, declined to make a connection between the applicant’s condition and the awkward sleeping when directly questioned by the insurer, identified no other factor in the applicant’s condition and consistently identified the applicant’s employment as having aggravated his condition. In any event, Dr Parkinson diagnosed the condition sustained by the applicant as “subacute” disc herniation with C7 nerve root compression, in keeping with a transient episode after an awkward sleeping, although he declined to make a connection in that regard, as noted above. In my view, these were the reasons evident in Dr Parkinson’s reports upon which he based his conclusion that the applicant’s employment was the main contributing factor to the aggravation of the underlying condition.
If I am wrong on this point, then in any event the reasoning process identified in AV v AW, as discussed below, wherein I accept Dr Parkinson’s opinion that employment was a substantial contributing factor to the aggravation of the applicant’s condition, permits me to find that the applicant’s employment was also the main contributing factor to the aggravation of the disease process, in the absence of any other factor as I have found in relation to the transient nature of the effects of the awkward sleeping in September 2019, as discussed above.
In relation to the reports and opinion of Dr Endrey-Walder, the respondent submitted that the doctor did not identify in his opinion what were the nature and conditions of employment. However, Dr Endrey-Walder in his report of 22 July 2021 noted that in his main report of 15 April 2021 he acknowledged that at least 50% of the applicant’s daily work was physically demanding and that on account of this over the years he would intermittently have some neck pain but most especially pain at the right shoulder. Dr Endrey-Walder in his report of 22 July 21 also noted the reports of Dr Parkinson dated 2 March 2021 and 15 April 2021 and referred to the report of 2 March 2021 in noting that Dr Parkinson had confirmed the applicant had gradually worsening neck and arm pain in a right C7 distribution, confirming a previous diagnosis of right C7 subacute disc herniation with compression of the right C7 root, with Dr Parkinson’s opinion that the heavy work the applicant was undertaking on behalf of the respondent was a substantial contributing factor to the cervical spine injury, as the applicant had done a great deal of heavy lifting at work and his employment had been his primary physical effort. I have accepted the reports and opinion of Dr Parkinson above. In my view, Dr Endrey-Walder in his report of 22 July 2021 has accepted Dr Parkinson’s identification of the heavy lifting at work and the heavy work undertaken for the respondent. In my view, when considered with Dr Endrey-Walder’s history that 50% of the applicant’s duties as a Bushland Supervisor consisted of physically demanding work, this is sufficient identification by Dr Endrey-Walder of the nature and conditions of the applicant’s employment with the respondent to provide a sufficient basis for his opinion, having regard to the issues discussed in respect of Dr Parkinson’s reports in respect of the authorities discussed above.[13] This is in the context of this case in which Dr Cochrane in his report of 16 September 2021 specifically noted the applicant’s statement of 22 February 2021 in reaching an opinion in report of 28 October 2021 that that it was very reasonable to conclude that the applicant’s employment may have aggravated the underlying degenerative condition, although not the main contributing factor.
[13] Makita, Hancock, Sydneywide, Rich, Adler and Dawson.

The respondent submitted that neither Dr Endrey-Walder nor Dr Parkinson properly grappled with injury and also with whether employment was the main contributing factor to cause the pathology or the aggravation. As discussed above, the pathology that was identified and diagnosed by Dr Parkinson as a right C6/7 subacute disc herniation with compression of right C7 nerve root. This was distinct from the transient acute right C6/7 disc herniation, as described by Dr Cochrane. In my view, it was the pathology identified by Dr Parkinson which he regarded as having been aggravated by the applicant’s employment with the respondent, for which he regarded that employment as the main contributing factor.
Dr Endrey-Walder in his supplementary report of 22 July 2021 reviewed the reports of Dr Parkinson dated 2 March 2021 and 15 April 2021. Dr Endrey-Walder noted the history taken by Dr Parkinson that the applicant had done a great deal of heavy lifting at work and the employment had been the applicant’s primary physical effort. Dr Endrey-Walder also stated that he had recorded a history that at least 50% of the applicant’s daily work was physically demanding and that on account of this physically demanding work over the years the applicant would intermittently have some neck pain but most especially pain at the right shoulder. This, in my view, is consistent with the history recorded by Dr Parkinson. Dr Endrey-Walder then noted the opinion of Dr Parkinson that the applicant’s employment was the main contributing factor to the aggravation of the disease condition. Dr Endrey-Walder was of the view that the applicant’s sleepover at the hospital was an aggravating and exacerbating factor of the underlying spondylotic condition in the cervical spine. Dr Endrey-Walder confirmed his previous assessment that it was the applicant’s pathology at the C6/7 level of the cervical spine that was the cause of the ongoing right shoulder/arm pain. At this point, I observe that Dr Endrey-Walder’s discussion of the sleepover at the hospital as an aggravating and exacerbating factor of the underlying condition should be considered in light of his earlier comments in his report of 15 April 2021 that the sleepover at the hospital precipitated symptoms which impacted on the underlying disc pathology, having noted the MRI scan report of 4 February 2020 referring to a significantly reduced in size disc extrusion and Dr Parkinson’s opinion in February 2020 that surgery was required in respect of an acute cervical disc herniation at C6/7. Although a reference in the report of 15 April 2021 by Dr Endrey-Walder to the nature and conditions as the main contributing factor was not of itself explanatory, in my view, the reports of Dr Endrey-Walder when read as a whole provide sufficient explanation for his opinion.
The respondent pointed to a lack of evidence in the form of clinical notes and radiological investigations prior to September 2019 for the submission that there was no evidence to support the opinions of Dr Parkinson and Dr Endrey-Walder. In this regard, the respondent also submitted that the applicant in his statement did not provide relevant evidence, such as when he experienced neck symptoms prior to September 2019. The respondent submitted that it was not a question of whether such employment was capable of resulting in the aggravation of the applicant’s underlying degenerative cervical condition, but rather whether such employment in fact resulted in an aggravation.
I do not accept these submissions. As noted above, I have accepted the applicant’s statement, which in my view forms the evidentiary basis for the opinions of Dr Parkinson and Dr Endrey-Walder. As discussed above, the reasons for my acceptance of the applicant’s statement, notwithstanding the absence of evidence prior to September 2019, are in summary fivefold. First, the sleepover at the hospital resulted in acute symptoms and acute pathology which was of a transient nature, as described by Dr Cochrane and with the passage of time Dr Parkinson described the pathology initially as acute and thereafter subacute. Second, Dr Parkinson diagnosed identifiable subacute pathology as being the cause of the applicant’s symptoms for which treatment was required and for which he regarded employment as being the main contributing factor. Third, when read as a whole, the reports and opinion of Dr Parkinson does not point to another cause for the applicant’s symptoms after the transient period of acute symptoms, while the opinion of Dr Cochrane did not persuasively point to another cause and I have not preferred Dr Endrey-Walder in respect of his engagement with the change in the status of the pathology from acute to subacute as described by Dr Parkinson. Fourth, the applicant was not challenged on credit in submissions, rather the submission that was made was there was no corroboration in the form of objective evidence such as clinical notes and radiological investigations prior to September 2019, nor was there a challenge or query as to what the applicant said in the medical expert reports referred to above. Finally, the applicant explained in his statement that if the back and neck pain was dull or aching he would just usually press on with the job and rest at the end of the day and he initiated seeking treatment after the acute pain following the awkward sleeping at the hospital. This, in my view, was consistent with the applicant continuing with his normal employment duties, as he described, that he had performed over the previous 21 years and not seeking medical attention, other than references to treatment of his back for more significant symptoms in 2002 and 2014 which were not otherwise relevant to this claim, until the acute episode in September 2019, as submitted by the applicant, in my view this episode in September 2019 resulted in the applicant’s condition coming to the attention of his treating doctors for consideration after the acute transient period.
Further, Dr Parkinson and Dr Endrey-Walder reviewed the post September 2019 MRI scans and were able to conclude that there was a pre-existing degenerative disease process in the applicant’s cervical spine which had been aggravated by the applicant’s employment duties. It is a matter for expert medical opinion as to the adequacy of radiological evidence, including absence of prior radiological evidence, in reaching their opinion. I do not accept that Dr Parkinson and Dr Endrey-Walder were not in a position to conclude as they did. There was no expert medical opinion to suggest that this was an incorrect approach. Indeed, Dr Cochrane did not suggest that the radiological material available was not sufficient for him to opine that there was a pre-existing degenerative cervical spine condition for which the applicant’s employment may have been a substantial contributing factor, nor did he criticise the opinions of Dr Parkinson and Dr Endrey-Walder on the basis of an absence of radiological evidence prior to September 2019.
In respect of the submission that it is not a question as to whether the employment is capable of resulting in injury, it was Dr Cochrane who noted that the pre-existing condition was either asymptomatic or intermittently and briefly symptomatic on occasion not unusual with the type of work that the claimant performed. Dr Parkinson and Dr Endrey-Walder did not consider whether or not the employment was capable of resulting in the injury, in my view they did consider whether the employment in fact because the aggravation, having regard to the relevant radiology and other matters including the history provided by the applicant. I do not accept this submission.
I prefer the opinion of Dr Parkinson, supported by that of Dr Endrey-Walder, to that of Dr Cochrane.
The respondent submitted that having regard to the decision of AV v AW , that on the whole of the evidence the applicant has not proven that employment was the main contributing factor. It was submitted that both Dr Parkinson and Dr Endrey-Walder did not engage with that test other than simply reciting the language of section 4(b)(ii). It was submitted that the test is not whether the employment is capable of causing this kind of condition and this was made clear in the decision of Mannie v Bauer[14] and finding that the applicant performed the work which he described was not sufficient. I do not accept these submissions. I have found to the contrary that there was a fair climate for the opinions of Dr Parkinson and Dr Endrey-Walder to be accepted in this matter.
[14] [2016] PD 47.
In my view, the opinions of Dr Parkinson and Dr Endrey-Walder were not a mere recital of the statutory language as there was sufficient foundation for them in their reports for the opinion that they expressed in this regard, for the reasons given above. The evidence in my view was not limited to the employment being capable of causing injury, rather it was evidence that injury resulted from the applicant’s employment with the respondent, and that such evidence was contained in the statement of the applicant and the reports of Dr Parkinson and Dr Endrey-Walder. In my view, the whole of the evidence, including the applicant’s statement, the transient period of the acute symptoms following the hospital sleepover in September 2019, and the opinions of Dr Parkinson and Dr Endrey-Walder support my conclusion that the applicant has satisfied the test of the main contributing factor as required in section 4(b)(ii).
I accept the applicant’s submission that, while the opinion of Dr Parkinson may not have been expressed in accordance with section 4(b), Dr Endrey-Walder provided his opinion in accordance with that section. It was also submitted by the applicant that Dr Cochrane conceded in his last report that there could be such an aggravation of the underlying condition that he identified. On balance, this is a correct summary of the position of Dr Cochrane and I accept that submission. The applicant also submitted that Dr Cochrane did not consider in his report of 28 October 2021 the compression of the C6/7 nerve root that was noted by Dr Parkinson, which is why there is the need for surgery. It was also submitted by the applicant that while Dr Cochrane did not agree that employment was the main contributing factor to the underlying degenerative condition, the conclusion that employment was the main contributing factor is the only one that can be drawn as the only cause identified by Dr Cochrane in the aggravation was the heavy and long hard work of the applicant. I accept these submissions, for the reasons discussed above. It follows that, there being no other factor identified in the aggravation of the pre-existing disease process under consideration, adopting the common sense consideration of the chain of causation, in my view the applicant’s employment with the respondent, which required heavy and physically demanding work involving heavy lifting, as outlined above, was the main contributing factor to the aggravation of the applicant’s degenerative cervical spine disease condition.
I find that the applicant’s employment with the respondent aggravated the underlying condition, which was diagnosed by Dr Parkinson as a subacute right C6/7 disc herniation with compression of right C7 nerve root and described by him as an aggravation of that disease condition. I find that the applicant’s employment with the respondent was the main contributing factor to the aggravation of that disease condition. I find that the applicant sustained aggravation of this disease injury pursuant to section 4(b)(ii) of the 1987 Act.
As previously noted, leave was granted to the applicant to amend the deemed date of injury to be 24 September 2019. The applicant submitted that this was based upon the applicant’s attendance on Dr Thai on 24 September 2019. The applicant relied upon the clinical note of Dr Thai dated 4 September 2019. The respondent submitted that this was not in accordance with the requirements of section 16 and there was no evidence as to when a date could be deemed pursuant to section 16.
The respondent referred to the discussion in the decision of Inghams Enterprises Pty Ltd v Thoroughgood[15] (Thoroughgood) for the relevant principles in determining a deemed date. I was not taken to any specific decision or authority in respect of a deemed date pursuant to section 16 in respect of a claim only for future medical expenses.
[15] [2013] NSWWCCPD 29.
The report of Dr Endrey-Walder dated 15 April 2021 indicated that the applicant had not taken any time off work in respect of his cervical spine condition.
In this case, there being no relevant incapacity, the injury is deemed to have happened at the time the worker makes a claim for compensation with respect to the injury, if death or incapacity has not resulted from the injury (section 16(1)(a)(ii)).
The clinical note of Dr Thai of 24 September 2019 noted the history of sleeping in the hospital foldout bed and persistent neck pain and radicular symptoms. The reason for the visit was noted as cervical radiculopathy and action taken included prescription of Lyrica and Mobic and an imaging request for an MRI scan of the cervical spine. As noted above, it was this attendance by the applicant in respect of the transient acute symptoms which also commenced the treatment process in which attention was drawn to the applicant’s underlying degenerative disease process and the relationship to employment.
The certificate of capacity of Dr Thai dated 25 October 2019, attached to the Reply, was also marked as the initial certificate for the claim. That certificate recorded that the applicant was first seen at Dr Thai’s practice for the right C7 radiculopathy and right C6/7 disc herniation on 24 September 2019. The same certificate also certified that the injury/disease was consistent with the applicant’s description of the cause and the relationship with work was heavy lifting during the course of the applicant’s work in his role leading to recurrent back and neck pain predisposing to disc herniation and acute radiculopathy symptoms. That certificate also identified as management treatment including medications, including anti-inflammatory and Lyrica, and referral to a sports physician and neurosurgeon.
The certificate of capacity dated 25 October 2019 in my view identified and relied upon for treatment of the applicant’s work-related cervical spine condition the treatment that was first commenced by Dr Thai on 24 September 2019. That certificate of capacity did not certify incapacity or restricted capacity for work at that time.
The authorities discussed in Thoroughgood related to claims for weekly compensation and also claims pursuant to section 66. This is not a claim for weekly compensation, nor is there evidence before me of incapacity. Claims for permanent impairment or lump sum compensation are similar to the claim currently under consideration in that the requirement is for the date of injury to be deemed with respect to the date the claim for compensation was first made in respect of the injury. The authorities reviewed in Thoroughgood permit differing deemed dates of injury for weekly compensation and lump sum claims in respect of the same disease condition. In my view, these authorities permit another date of injury to be deemed in respect of a claim for medical expenses, if, for example, there is no deemed date in respect of incapacity for weekly compensation.
However, in my view, a section 60 claim may be for past incurred expenses and also for proposed expenses. This is distinct from a lump sum claim which does not involve an element of reimbursement for incurred or proposed expenses. In my view, the date that the claim for compensation is made is a different consideration in a claim for section 60 expenses, whether past or proposed, as distinct from a lump sum claim. The meaning and time of the making of a claim for compensation for medical expenses may be different to that of a section 66 claim for lump sum compensation.
In this case, the claim before me is for proposed expenses, being the cost of proposed surgery. In my view, a claim for proposed expenses should have regard to expenses already incurred. First, in considering whether proposed surgery is reasonably necessary as a result of an injury, regard is had to the treatment that has already been provided, particularly in respect of radiological investigations and treatment of pain. Second, in these circumstances it would be anomalous, in my view, for a date of injury to be deemed at some time after the commencement of investigations and treatment in respect of the onset of the aggravation of the subject disease condition, whereby the parties are left in a state of uncertainty as to whether such incurred expenses may be reimbursed. Although it might be argued that there may be more than one deemed date of injury for a claim for medical expenses, in my view in these circumstances it is impractical and not conducive to the orderly and prompt process of claiming reimbursement for medical expenses.
In my view, regard should also be had to the test in section 60, that is, if, as a result of an injury received by a worker, it is reasonably necessary that any medical or related treatment be given then the respondent is liable to pay the cost of that treatment or service. Reasonable necessity was not in dispute in submissions. The statutory context for this claim is that liability for payment by the employer is related to the injury received by the worker, not to the deeming provision of section 16. In my view, the liability provision of section 60 is more clearly and practically applied by the relevant deeming provision of section 16 applying the date of first treatment as the deemed date of injury.
This informs the question as to the time the worker makes a claim for compensation with respect to the injury, as required by section 16 (1)(a)(ii). The statutory context of section 60, in my view, permits a time for the making of a claim for compensation to be before the medical certificate of 25 October 2019, that is to the date that the respondent became first liable for reimbursement pursuant to section 60. In my view, the respondent first became liable on 24 September 2019 for reimbursement of treatment expenses including the consultation with Dr Thai and also the cost of Lyrica medication. I also note that in the current proceedings the applicant has provided a schedule which lists a claim for $85 that he says he paid to Dr Thai for the appointment on 24 September 2019, among other past incurred expenses.
As Basten JA stated in Thoroughgood,[16]
“26. Section 60 of the Workers Compensation Act provides that if, as a result of an injury, it is reasonably necessary that "any medical or related treatment ... be given", the employer is liable to pay the cost of that treatment: s 60(1)(a). Section 59 defines "medical or related treatment" as including "therapeutic treatment given by direction of a medical practitioner": par (b). The section further provides that "[p]ayments under this section are to be made as the costs are incurred, but only if properly verified": s 60(3).
27. The legislation does not contain a definition of the phrase "claim for compensation", but it is clear that payments of compensation can be made (and may be required to be made) before a claim for compensation is made. Thus there is a requirement to commence provisional weekly payments of compensation upon notification of an injury: Workplace Injury Act, s 267. Recognition that a claim is not at that stage required is reflected in the obligation on the insurer to give the worker notice in writing as to the entitlement to make a claim and as to how that claim can be made: Workplace Injury Act, s 269(d).
28. The employer proffered no authority for the proposition that a claim for "therapeutic treatment given by direction of a medical practitioner" could not constitute a claim for compensation until the cost had already been incurred, or possibly paid. The consequences of such a conclusion are potentially far-reaching. Inghams did not establish reasonable prospects of demonstrating that the conclusion of the Deputy President (and the arbitrator) that a claim had been made was wrong in point of law.”
[16] [2014] NSWCA 166 at [28].

In my view, the claim for compensation was made on 24 September 2019. If I am wrong on this point, then on the evidence other deemed dates may be possible, including 18 October 2019, the first consultation with Dr Parkinson, 25 October 2019, the date of the certificate of capacity, 23 December 2019, approval requested by Dr Parkinson for an MRI cervical spine, and 20 February 2020, being the date that Dr Parkinson sought approval to undergo right C6/7 foraminotomy and posterior discectomy. However, there were no submissions in respect of these dates. The parties may wish to give this aspect further consideration.
As noted, there were no submissions from the respondent that the proposed surgery was not reasonably necessary. The respondent submitted that it was not necessary to give consideration to matters such as Diab. I find that the proposed surgery is reasonably necessary.
I find that the surgery proposed by Dr Parkinson, right C6/7 foraminotomy and posterior discectomy, is reasonably necessary as a result of injury, such injury being aggravation of the applicant’s underlying degenerative cervical spine disease condition, diagnosed by Dr Parkinson as subacute right C6/7 disc herniation with compression of right C7 nerve root, with injury deemed to have happened on 24 September 2019.

[2022] NSWPIC 52

8 February 2022