Bennett-Hillier v Wyong Race Club Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bennett-Hillier v Wyong Race Club Ltd [2024] NSWPIC 611
APPLICANT:	Dayne Bennett-Hillier
RESPONDENT:	Wyong Race Club Limited
MEMBER:	John Isaksen
DATE OF DECISION:	30 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for a general order for the payment of medical expenses for injury and/or consequential condition to the cervical spine; consideration of Fox v Percy in making factual finding as to whether the worker sustained an injury in the course of his employment with the respondent; consideration of Moon v Conmah Pty Limited on determination of a consequential condition; Held – worker did not sustain an injury to his cervical spine in the course of his employment with the respondent; the worker has suffered a consequential condition affecting his cervical spine as a result of injury to lower back; order that the respondent is to pay reasonably necessary medical expenses for treatment of the cervical spine as a consequence of the injury to the worker’s lower back.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant did not sustain an injury to his cervical spine in the course of his employment with the respondent on 6 May 2020. 2. The applicant did not sustain an injury to his cervical spine as a result of multiple falls he has suffered in the course of his employment with the respondent. 3. The applicant has suffered a consequential condition affecting his cervical spine as a result of the injury to his lower back on 6 May 2020. The Commission orders: 1. The respondent is to pay the costs of reasonably necessary medical treatment of the cervical spine as a consequence of the injury sustained by the applicant to his lower back on 6 May 2020.

STATEMENT OF REASONS

BACKGROUND

The applicant in these proceedings, Dayne Bennett-Hillier, sustained an injury to his lumbar spine on 6 May 2020 while in the course of his employment as a jockey with the respondent, Wyong Race Club Ltd, when he fell from a thoroughbred horse in a jump out.
The respondent has admitted liability for the injury to the applicant’s lumbar spine.
The applicant underwent a L5/S1 anterior lumbar fusion on 13 March 2021, performed by
Dr Damodaran, neurosurgeon.
The applicant now seeks a general order for the payment by the respondent of treatment expenses in respect of a compensable condition affecting the cervical spine. The applicant contends that the respondent is liable for such an order for one or more of the following reasons:
(a)    that he sustained a frank injury to his cervical spine on 6 May 2020;
(b)    that he has sustained an injury to his cervical spine as a result of multiple falls he has had in 25 years of work as a jockey, and
(c)    that he has suffered a consequential condition affecting his cervical spine as a result of the injury to his lumbar spine.
The respondent disputes that the applicant has any compensable condition affecting his cervical spine. The respondent also contends that the Personal Injury Commission (Commission) has no jurisdiction to make the order sought when there are no outstanding expenses for treatment of the neck and no plan of treatment by any medical practitioner which might allow an order to be made pursuant to s 60 (5) of the Workers Compensation Act 1987 (the 1987 Act).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant has sustained an injury arising out of or in the course of his employment with the respondent (s 4 of the 1987 Act);
(b)    whether the applicant has suffered a consequential condition affecting his cervical spine as a result of the injury sustained on 6 May 2020, and
(c)    whether the Commission can make a general order that the respondent pay for the cost of medical treatment in the circumstances of this dispute (s 60 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation and arbitration on 9 October 2024. Mr McManamey appeared for the applicant. Mr Saul appeared for the respondent.
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 attachments;
(c)    Application to Admit Late Documents filed by the respondent on 23 August 2024;
(d)    Application to Admit Late Documents filed by the applicant on 6 September 2024, and
(e)    Application to Admit Late Documents filed by the respondent on
13 September 2024.

Oral evidence

There was no application to adduce oral evidence from the applicant or to cross-examine the applicant.

The applicant’s evidence

The applicant has provided statements dated 24 May 2023 and 18 July 2024.
In his statement dated 24 May 2023, the applicant states that he left school in 1995 to become an apprentice jockey, and he completed his apprenticeship in 1998. He states that in his work as a jockey he fractured his left clavicle in 1997, fractured his left hand in 2017, and fractured his left foot in 2019.
The applicant states that on 6 May 2020 he was retained to ride a horse called ‘Wandjina Spirit’ in a jump out. He states that the horse bucked him off unexpectedly when the barriers opened, and he was thrown over a rail and landed heavily on his lower back. He states that he suffered a significant injury to his lower back as a consequence of this incident.
The applicant states that he has pain in his thoracic and cervical spine as a result of a fusion to his lower back, which occurred in March 2021.
In his statement dated 18 July 2024, the applicant states that the impact of the fall on
6 May 2020 affected other parts all over his body, including his neck. He states that he experienced symptoms in his neck at that time and “in the period that followed”. He states that he did not pay much attention to his neck symptoms because those symptoms were nowhere near as significant as his lower back injuries. The applicant states that he believes that he may have mentioned neck symptoms at times in passing to his general practitioner and physiotherapist, but those practitioners seem to be focused on treating his lower back condition.
The applicant states that following his fusion surgery he found his posture to become a lot more rigid, which placed a strain on his upper back and neck. He states that he found this particularly to be the case when he was sitting at a computer in his efforts towards retraining.
The applicant states that he has had approximately 100 falls during some 25 years of work as a jockey, and that these falls have involved a significant impact to the whole of his body when he has struck the ground, including to his neck.
The applicant states that he currently has restriction of movement in the neck, experiences shooting pain down both arms, and has severe migraines and spasms in his neck.

The medical evidence

There are clinical notes in evidence from the applicant’s general practitioner, Dr Gamage, from Wyong Family Centre.
There are entries made by on Dr Gamage 29 May 2020, 2 June 2020, and 7 July 2020, which record the applicant having lower back pain and symptoms down the left leg. There is no reference to neck pain or symptoms.
There are many entries made by Dr Gamage for consultations with the applicant for the rest of 2020 and throughout 2021 with no reference to any neck pain or symptoms.
Dr Gamage has provided a report dated 17 July 2023 wherein he confirms that the applicant’s first consultation for neck pain was on 5 May 2022. Dr Gamage writes: “he was recovering from his back surgery and cervical and thoracic back pains were deemed to be related to his deconditioning.” Dr Gamage also writes that the most recent certificate includes a diagnosis of neck pain that is likely to be from previous multiple racing related injuries.
The applicant initially attended Dr Damodaran some three months after the fall at work.
Dr Damodaran records in his report dated 11 August 2020 that the applicant has back pain and left sided leg pain. There is no reference to any injury to the neck.
There are several reports in evidence from Dr Damodaran from the latter part of 2020 and during 2021, but there is no reference to any neck pain or symptoms.
Dr Damodaran provides a report to the applicant’s lawyers dated 12 September 2023 wherein he writes that the applicant had a severe fall from a horse in 2020 and developed back pain with left sided leg pain. Dr Damodaran also writes:
“Over time Dayne has developed neck pain with bilateral radiculopathy. This has been present since the injury, but Dayne reports that the back pain initially was the primary issue. Over time the neck pain has also progressively worsened. He has bilateral C6 and C7 radiculopathy.”
Dr Damodaran also writes: “The cervical spine has also been impacted by both surgery and the injury.”
Dr Kadavil, specialist pain management physician, initially saw the applicant on
13 November 2020. Dr Kadavil records in his first report that the applicant has a six-month history of low back pain following a fall at work. There is no reference to any neck pain and symptoms in that report.
There are several reports in evidence from Dr Kadavil during 2021 and 2022 with no mention of any neck painful symptoms. Dr Kadavil then records in a report dated 15 May 2023 that the applicant has pain in both his neck and his back.
Dr Kadavil provides a report to the respondent on 1 August 2023 wherein he writes that MRI scans show C5 and C6 level disc herniation. Dr Kadavil opines:
“It is obviously difficult to correlate his previous back injury with his neck problem. Having said that, because of postural adjustment due to long-standing back pain, patients can develop disc pathology in the thoracic and cervical spine. This is probably one of the reasons why he has ended up with a new pathology in his neck.”
Dr Kadavil also writes that the applicant would definitely benefit from approval to see a physiotherapist for his neck pain, and requests that the insurer of the respondent provide that approval.
There are further reports from Dr Kadavil dated 6 November 2023, 12 February 2024, and
17 June 2024, which confirm that the applicant complains of significant neck pain. Dr Kadavil writes in that final report that he completely supports the respondent accepting liability for the applicant’s neck pain.
Dr Bentivoglio, neurosurgeon, has provided reports at the request of the applicant’s lawyers dated 12 February 2024, 22 March 2024, and 2 May 2024.
In his report dated 12 February 2024, Dr Bentivoglio writes that the applicant developed low back pain going into the left leg when he was thrown from a horse and landed on his back on a concrete drain. He records that the applicant now says his neck pain started at the time of the injury, but he did not really start complaining about it until about 12 months after the injury. Dr Bentivoglio records that the applicant maintains he had no neck issues prior to the injury in May 2020, even though he has had multiple falls as a jockey.
Dr Bentivoglio diagnoses the applicant as having neck pain secondary to degenerative disease at the C5/6 and C6/7 levels with neuropathic arm pain but no evidence of radiculopathy. He also diagnoses discogenic low back pain which has been partially relieved by the L5/S1 fusion.
Dr Bentivoglio opines: “I do believe that the work injury has exacerbated some pre-existing degenerative disease in his cervical spine caused by the nature of his work which has resulted in many falls.”
Dr Bentivoglio considers that it would be worthwhile having the applicant try three months of physiotherapy and exercise physiology to his cervical spine to ascertain if that provides any benefit.
In a supplementary report dated 22 March 2024, Dr Bentivoglio writes that the aggravation from the work injury (being the fall on 6 May 2020) should settle after about six months and any ongoing symptoms are related to the progression of the degenerative disease in the cervical spine. Dr Bentivoglio then opines:
“I do believe the work injury on 6 May has been a contributing factor but I do relate his work as a jockey as being a more significant activity factor to the development of his degenerative disease which has been aggravated by the work injury on 6 May 2020. Continued deterioration of his neck is related to the progression of that degenerative disease, not from the work injury on 6 May 2020.”
Dr Bentivoglio is then asked what aspects of the applicant’s work as a jockey has contributed to the development of the degenerative disease in the cervical spine and Dr Bentivoglio responds:
“I have no doubt in saying the fact that he has had multiple falls from horses as a jockey, this has been a significant contributing factor to the development of his degenerative disease both in his cervical spine and lumbar spine.
Undoubtedly, the falls have been a significant contributing factor to the degenerative disease if not the main contributing factor is the nature of his employment as a jockey with multiple falls.”
Dr Diebold, orthopaedic surgeon, has provided reports at the request of the respondent dated 5 April 2022, 13 September 2023, and 23 March 2024.
In his report dated 13 September 2023, Dr Diebold writes that there has been no documentation of complaints of cervical pain until recently. Dr Diebold records that the applicant had neck problems for over a year, but the applicant’s general practitioner and physiotherapist ignored him at that time.
Dr Diebold writes that Dr Gamage has suggested that there are two work related mechanisms for the applicant’s cervical condition, being previous racing injuries and being consequential to the lower back condition. Dr Diebold responds that he does not agree with this. He writes that there has been no record of a neck injury and that there is no plausible link between previous falls and current cervical changes found on the MRI scan. He further opines:
“I cannot see a plausible relationship between his lower back injury and rehabilitation, and the development of any cervical conditional symptoms. The two areas are distant from each other, with no plausible mechanical relationship between the two.”
Dr Diebold also writes that he cannot see a plausible relationship between the injury on
6 May 2020 and the neck condition because there was no history of cervical symptoms until almost two years after that injury.
Dr Diebold in a supplementary report dated 23 March 2024 states that the two year delay in complaints made by the applicant of neck pain signifies that the neck pain was mild at best. He then opines:
“In my opinion the chain of causation has been broken, and it is not plausible that there was enough neck pain over the intervening period to incriminate the original fall as being a contributing factor. In my opinion the symptoms would have occurred even if not for the work-related fall of 6 May 2020.”

DETERMINATION

Whether the applicant sustained an injury to his cervical spine in the course of his employment with the respondent

I accept that the description of the fall occasioned to the applicant on 6 May 2020 would have been capable of causing an injury to the neck, being “a sudden and ascertainable or dramatic physiological change or disturbance of the physiological state”, even if it “be as simple as a bruise or a soft tissue strain” (North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 (Felstead) at [81]).
However, there is no reference at all to an injury to the neck or pain or symptoms in or emanating from the neck in the consultations which the applicant had with Dr Gamage in the weeks following the fall, or indeed in the many consultations he had with Dr Gamage over the ensuing two years.
There is no reference to neck pain or symptoms in the reports from Dr Damodaran until September 2023.
There is no reference to neck pain or symptoms in the reports from Dr Kadavil from November 2020 until May 2023. In my view, that is of particular significance because
Dr Kadavil is a specialist addressing pain and yet Dr Kadavil does not record or treat any complaints of neck pain until May 2023. Furthermore, Dr Kadavil regards the applicant’s complaints of neck pain in 2023 to be “new pathology”.
The applicant does not state that he experienced any neck pain following the fall in his statement dated 24 May 2023, and is quite specific when he states that he has pain in his cervical spine “as a result of a fusion in my lower back”.
In Fox v Percy [2003] HCA 22; 214 CLR 118 (Fox v Percy), Gleeson CJ, Gummow and Kirby JJ emphasised the importance of “contemporary materials, objectively established facts and the apparent logic of events” (at [31]) when determining factual disputes.
In this dispute the lack of any contemporaneous medical records of neck pain or symptoms for at least two years following the injury, despite the applicant having multiple consultations with Dr Gamage over this period of time, and the applicant seeking treatment from Dr Kadavil for the alleviation of pain during this same period of time, leads me to conclude that the applicant did not sustain an injury to his cervical spine in the fall on 6 May 2020.
That conclusion is reinforced by the applicant’s own evidence, where no mention is made of any symptoms in his neck following the fall on 6 May 2020 in his first statement dated
24 May 2023, but instead the applicant attributes pain in his neck to the fusion surgery he underwent in March 2021.
The expert evidence in support of the claim that the applicant did sustain an injury in the fall on 6 May 2020 is advanced by Dr Damordaran and Dr Bentivoglio. However, both those doctors provided their opinions on causation over three years after the incident occurred.
Dr Damordaran did commence to treat the applicant some three months after the fall, but he makes no reference to an injury to the neck in the reports leading up to and after the surgery he performs in March 2021.
I prefer the contemporaneous medical records which have been available in this dispute, as opposed to opinions provided some years later, in making a determination as to whether the applicant sustained an injury to his cervical spine on 6 May 2020 because such an approach is consistent with the guidelines set out in Fox v Percy.
Mr McManamey relies upon an entry made by Dr Gamage on 19 May 2022 which includes: “Neck pain – mid back pain – ongoing” and “Has seen Chiro before”, in support of a submission that the applicant’s neck pain has been in existence for some time. In my view, it is unsafe to rely upon these notes in drawing any inference or conclusion regarding the cause of the applicant’s neck pain without there being any explanation from Dr Gamage relating to those notes and having regard to the lack of any other references to neck pain in the preceding two years.
I therefore cannot be satisfied from a review of the evidence that the applicant sustained an injury to his cervical spine in the fall on 6 May 2020.
An alternative proposition for the cause of the applicant’s neck pain is advanced by
Dr Bentivoglio, namely that the applicant has sustained an injury to the cervical spine as a result of multiple falls he has had as a jockey.
Dr Bentivoglio is the only expert to propound this as a cause of the applicant’s neck pain.
Dr Gamage refers to “multiple racing related injuries” in his report dated 17 July 2023 and Certificate of Capacity dated 12 July 2023, which is broader in context than merely falls.
Dr Gamage otherwise provides no further details of how those injuries have occurred and how that has led to an injury to the cervical spine.

Dr Bentivoglio records that the first time that the applicant experienced neck pain was when he had the fall on 6 May 2020, despite having multiple falls as a jockey prior to this incident. Mr McManamey submits that the lack of any prior symptoms affecting the neck is not fatal to this particular claim made by the applicant because there can be an incremental process whereby the applicant’s degenerative condition is made a little worse by each fall.
While that might be valid argument, it is not properly addressed in the reports from
Dr Bentivoglio. Dr Bentivoglio does not explain how he concludes that the applicant’s degenerative disease in the cervical spine has developed or been exacerbated by those falls when he also records the applicant having no neck pain at all prior to 6 May 2020. It is not sufficient, in my view, for Dr Bentivoglio to state that he has “no doubt” that multiple falls have been a significant contributing factor to that degenerative disease without addressing the lack of any prior complaints of neck pain by the applicant.
Dr Bentivoglio also does not record any details of the falls, other to state that those falls have been “multiple” and “many”. He does not engage in any interrogation as to over what period of time these falls occurred, the frequency of those falls, or how any or all of those falls have impacted the applicant’s cervical spine, given that the applicant states that those falls “involved a significant impact to the whole of my body”.
This leads me to agree with a submission made by Mr Saul that there is a lack of any analysis by Dr Bentivoglio as to how any of the falls have exacerbated the degenerative disease or have been a significant factor in the development of the degenerative disease.
I therefore find that I cannot accept the opinion of Dr Bentivoglio, who is the only expert to support the applicant’s claim that multiple falls as a jockey has contributed to the neck symptoms he now suffers from.

Whether the applicant has suffered a consequential condition affecting his cervical spine as a result of the injury he sustained on 6 May 2020

The determination of whether a condition suffered by a worker is as a consequence of a work injury was considered by DP Roche in Moon vConmah Pty Limited [2009] NSWWCCPD 134 (Moon). In that matter the worker claimed whole person impairment from symptoms experienced in the left shoulder as a consequence of an accepted injury to the right shoulder. DP Roche said at [45]-[46]:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.
The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury (see Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648).”
Deputy President Roche then proceeded to state that the expression “results from” should be applied using the principles set out by Kirby P in Kooragang Cement v Bates (1994) 35 NSWLR 452 (Kooragang). President Kirby said in Kooragang at [462]:
“It has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
Kirby P then said at [463]-[464]:
“…What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury… Is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
The expert evidence in support of a claim of a consequential condition affecting the cervical spine rests primarily with the opinion of Dr Kadavil. Mr Saul submits that the opinion from
Dr Kadavil is weak and cannot be relied upon because Dr Kadavil concedes that it is difficult to relate the applicant’s neck problems to his back injury and he only postulates that patients “can” develop cervical disc pathology due to long standing back pain and is “probably” one of the reasons for new pathology in the neck.
In Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 (Fernandez), Glass JA said at [197]:
“The issue of causation involves a question of fact upon which opinion evidence, provided it is expert, is receivable. But a finding of causal connection may be open without any medical evidence at all to support it: Nicolia v Commissioner for Railways (NSW)(1970) 45 ALJR 465, or when the expert evidence does not rise above the opinion that a causal connection is possible: EMI (Australia) Ltd v Bes[1970] 2 NSWR 238; appeal dismissed (1970) 44 ALJR 360N. The evidence will be sufficient if, but only if, the materials offered justify an inference of probable connection. This is the only principle of law. Whether its requirements are met depends upon the evaluation of the evidence.”
His Honour then said at [200]:
“In such a case as the present, the question would be whether the evidence showed the connection between the possible cause and the condition which occurred was sufficiently close to warrant a reasonable mind, faced with the problem of determining the question upon the evidence before it, concluding that the possible was the actual cause.”
Dr Kadavil is in an ideal position to provide an opinion as to whether the injury to the lower back has led to any restrictions and symptoms in the cervical spine because he has had the benefit of monitoring the applicant’s condition over the years following the fall in May 2020. In particular, Dr Kadavil has had the benefit of seeing the applicant both before and after the fusion surgery which the applicant underwent in March 2021.
It is in the context of that ongoing treatment that Dr Kadavil is prepared to opine that cervical disc pathology can develop because of postural adjustment due to long-standing back pain and is a probable reason for the “new pathology” in the applicant’s neck.
The evidence also reveals that Dr Gamage commenced to record complaints of neck pain by the applicant in May 2022, some 14 months after the applicant had undergone fusion surgery to his lower back. The initial view of Dr Gamage was that the neck pain was “deemed to be related to his deconditioning”. It is only over a year later that Dr Gamage provides another possibility for the applicant’s neck when he writes in a Certificate of Capacity that this pain is “likely as a part of previous multiple racing related injuries.”
The opinion from Dr Kadavil also coincides with the applicant’s evidence from his first statement that his neck pain was due to the fusion surgery in March 2021, although the applicant does not volunteer any further information to support this statement.
In my view, the connection between the possible cause of the applicant’s neck pain provided by Dr Kadavil, being due to postural adjustments which the applicant has had to make due to his significant lower back injury, is “sufficiently close” to the restrictions and symptoms complained of by the applicant for a conclusion to be reached that this is the “actual cause” of those restrictions and symptoms in the applicant’s neck.
This is because Dr Kadavil has had the benefit of monitoring the applicant’s condition on a regular basis, starting from about six months after the injury, and has observed and recorded the onset of the applicant’s neck pain, and that his opinion that the applicant’s neck problems are a ”new pathology” coincides with the development of neck pain recorded by Dr Gamage and the applicant’s evidence that he has had neck pain since the fusion surgery.
I prefer the opinion of Dr Kadavil over that of Dr Diebold, not only for the reasons I have already provided, but because Dr Diebold does not properly engage with the issue of whether the applicant’s neck symptoms are as a consequence of his lower back injury.
Dr Diebold merely states that there is “no plausible relationship” between the lower back injury and rehabilitation and the development of cervical symptoms, other than to opine that the two areas of the body are too distant from each other for there to be a mechanical relationship.
However, I agree with the submission made by Mr McManamey that adjusted posture from a lower back injury can often lead to neck problems (see for instance, Ly v Jitt Offset Pty Ltd [2021] NSWPICPD 2 (Ly) at [22]). However, this is not addressed by Dr Diebold, and instead he simply dismisses the claim of a consequential condition affecting the neck by stating that the two areas of the body are too far apart.
There will therefore be a finding that the applicant has suffered a consequential condition affecting his cervical spine as a result of the injury to his lower back on 6 May 2020.

The order sought by the applicant

Mr McManamey submits that the issue as to whether the Commission has jurisdiction to make the order sought by the applicant that the respondent is to pay for treatment in respect of a compensable condition affecting the applicant’s cervical spine is answered by s 60 (5) of the 1987 Act which provides:
“The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service.”
However, I agree with the response from Mr Saul that s 60 (5) relates to specific treatment which is proposed by a health professional and the worker seeks the cost of that specific treatment to be met by the employer. That is consistent with the Explanatory Note to the introduction of s 60 (5):
“…to extend the jurisdiction of the Workers Compensation Commission (the Commission) in relation to disputes about treatment and services that have been provided to injured worker so as to cover disputes about treatment and services that are proposed to be provided.”
Mr McManamey refers to the recommendation by Dr Kadavil that the applicant would benefit from approval to see a physiotherapist for his neck pain as being specific treatment, but no order was sought by the applicant for this treatment pursuant to s 60 (5). The applicant has only sought what is commonly referred to as a ‘general order’.
Mr Saul submits that the Commission cannot make the order sought by the applicant because the Commission cannot make a declaratory order. Mr Saul did not specifically refer to Widdup v Hamilton [2006] NSWWCCPD 258 (Widdup), but support for his submission can be found at [46] where President Sheahan said:
“As section 60 is an indemnity provision, no ‘amount’ can be ordered to be paid under that section until the ‘cost’ has been incurred.”
Nonetheless, it was also recognised in Widdup that a general order for the payment of s 60 expenses can be made by the Commission. The President said in regard to a general order at [48]:
“…That ‘order’ is no more than a statement to the effect that a worker, having established liability, is entitled to have his or her hospital and medical expenses paid provided they are ‘as a result an injury’ and are ‘reasonably necessary’. It does not determine liability for any particular treatment. In most cases where the worker has recovered weekly or other compensation his or her reasonably necessary section 60 expenses will be paid without the need for a further application to the Commission. In the event that a medical or hospital account is disputed because it is not ‘reasonably necessary’, and/or because it is not ‘as a result of an injury’, then a further application can be filed seeking a determination on that issue.”
The President referred to Water Taxis Combined Pty Ltd and Harbour Taxi Boats Pty Ltd v Wells [2004] NSWWCCPD 30 (Water Taxis) and Lilly v Tomago [2004] NSWWCCPD 62 (Lilly) when he said also at [48]:
“In both Water Taxis and Lilly it was held that, where a dispute is properly before the Commission, it has the power to make factual findings that will be relevant to workers’ entitlements for future section 60 expenses.”
The order sought by the applicant in this dispute fits the circumstances referred to in Widdup and can be made by the Commission. However, the Commission has also recognised that a ‘general order’ is of “limited efficacy” (Sydney South West Area Health Service v Avery [2007] NSWWCCPD 213 at [55]), and that might ultimately be the practical result of this particular piece of litigation.
Nonetheless, as a result of the factual findings I have made in this dispute an order can be made that the respondent is to pay the costs of reasonably necessary medical treatment of the cervical spine as a consequence of the injury sustained by the applicant to his lumbar spine on 6 May 2020.

[2024] NSWPIC 611

30 October 2024