Bin Hassan v ComfortDelGro Corporation Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bin Hassan v ComfortDelGro Corporation Australia Pty Ltd [2025] NSWPIC 410
APPLICANT:	Wan Jalani Bin Hassan
RESPONDENT:	ComfortDelGro Corporation Australia Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	15 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation and medical expenses; whether applicant suffered a work injury to his cervical spine in the nature of an aggravation to an underlying disease process; applicant worked as a bus driver for the respondent for several years; applicant alleges his duties in the course of that employment caused an aggravation to underlying degenerative changes in his cervical spine leading to incapacity for employment and necessitating proposed cervical spine surgery; applicant’s claim was disputed on the basis he had not suffered a work injury and the proposed surgery was said not to be reasonably necessary; Held – applicant suffered an aggravation to an underlying disease process in his cervical spine to which his employment was the main contributing factor; the proposed spinal surgery is reasonably necessary as a result of the applicant’s injury; the respondent is to pay the costs of and incidental to the proposed surgery.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury to his cervical spine in the course of his employment with the respondent, with a deemed date of injury of 13 August 2023. 2. At the date of injury, the applicant’s pre-injury average weekly earnings were $1,408 per week. 3. As a result of his injury, the applicant has been totally incapacitated for employment from 23 November 2024 to date and continuing. 4. Pursuant to s 37 of the Workers Compensation Act1987, the respondent is to pay the applicant weekly compensation as follows: (a) from 23 November 2024 to 31 March 2025 at the rate of $1,126.40 per week, and (b) from 1 April 2025 to date and continuing at the rate of $1,131.24 per week. 5. The cervical spine surgery proposed by Dr Singh is reasonably necessary as a result of the applicant’s injury. 6. The respondent is to pay the costs of and incidental to the proposed surgery. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Wan Jalani Bin Hassan, was employed by ComfortDelGro Corporation Australia Pty Ltd (the respondent) as a bus driver from approximately 2019. He alleges the nature and conditions of his employment caused an ongoing aggravation to underlying but previously asymptomatic degenerative changes in his cervical spine, with a deemed date of injury of 13 August 2023.
The applicant claims weekly compensation for total incapacity for employment from 23 November 2024 to date and continuing and also seeks orders the respondent pay for the costs of and incidental to proposed cervical spine surgery recommended by his treating surgeon, Dr Singh.
The respondent denies any work injury to the applicant’s cervical spine, and alleges if such injury is present, it has not made a material contribution to the need for surgery. The respondent also alleges the proposed surgery is not reasonably necessary.
The parties agree that if a finding of injury is made in the applicant’s favour, there is no issue he has been totally incapacitated for employment for the period claimed and continuing.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant suffered an injury to his cervical spine;
(b)    if the answer to (a) above is in the affirmative, whether that injury has brought about the need for the proposed surgery, and
(c)    if the answer to (a) and (b) above are in the affirmative, whether the proposed surgery is reasonably necessary.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The parties attended a hearing on 12 August 2025. On that occasion, the applicant was represented by Mr McManamey and the respondent was represented by Mr Barter.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application), and
(b) Reply.

Oral evidence

There was no oral evidence called the hearing.

FINDINGS AND REASONS

Whether the applicant suffered an injury to his cervical spine.

There is no doubt the applicant has serious and persistent symptomology in his neck, which suffers from serious, multilevel preexisting degenerative pathology. The question for determination is whether those degenerative changes were aggravated and rendered symptomatic as a result of the nature and conditions of the applicant’s employment with the respondent.
Such a question is one of causation, and as a result, the test for determining whether an injury has taken place in this context is that set out in the oft-cited decision of Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang). That is, having regard to and evaluating the totality of the evidence on a commonsense basis, did the applicant’s employment with the respondent cause an aggravation to his neck pathology and thereby give rise to a work injury?
As the applicant alleges his injury is in the nature of an aggravation, the provisions of s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act) apply. That section relevantly states:
“In this Act: injury means…
(b) Includes a ‘disease injury’, which means: ...
ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”
As Deputy President Roche noted in Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71 (Kelly) at [66]:
“An aggravation or exacerbation of a disease occurs where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms (Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 (Semlitch)).”
Consistent with the line of authorities commencing with Semlitch, it has long been held the provisions of s 4(b)(ii) direct the attention of the fact finder to the work-related component of any aggravation to the underlying condition. The section notes there is only an injury in circumstances where the employment was the main contributing factor to the aggravation rather than to the underlying pathology itself: see for example Cant v Catholic Schools Office [2000] NSWCC 37 and Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606 (Mecha).
In AV v AW [2020] NSWWCCPD 9, Deputy President Snell clearly articulated what is required for a finding of main contributing factor to be established. As the Deputy President noted:
“The requirement of ‘the main contributing factor’ involves a more stringent connection with the employment than the requirement of a ‘substantial contributing factor’ that applied to ‘disease’ injuries prior to the 2012 amendments.”
Put simply, as Snell DP noted, there can only be one main contributing factor to an injury, as opposed to many substantial contributing factors.
Further, where a relevant aggravation involves both employment and non-employment factors, the evaluative process involves a consideration of the causative roles of both (AV v AW at [76]). It is necessary to consider, firstly, whether there were competing causal factors (employment and non-employment related) to the aggravation, and in considering those relevant contributing factors, whether employment represented the main one.
The applicant sets out the background to his alleged injury in his statement as follows:
“12. When I started with [the respondent], I was in good health and able to carry out my bus driving duties without restrictions and limitations.
13.    I recall my shifts during the workdays were split between the morning and afternoon runs, depending on business requirements, as follows:
i.3 - 5 hours in the morning run;
ii.3 - 5 hours in the afternoon run.
14.    If I was required to work weekends, I approximately worked a 7.5-hour shift with an unpaid 30 minute break, without splitting my shift between morning and afternoon runs. I generally would work six days per week.
15.    I recall the buses are operated with automatic models, but had firm cushioning, which made prolonged and extended periods of sitting very difficult and uncomfortable to cope with during my shifts.
16.    My role included frequent and awkward repetitive turning and twisting movements of my neck and thoracic spine to greet passengers when entering the bus. In addition, I was often required to perform turning and twisting movements with my neck to look over my shoulder and check for any blind spots, perform lane changes between traffic, as well as turn my neck suddenly and sharply to check the rear-view mirror as part of general driver safety. I frequently had both of my arms in a stretched-out manner whilst performing turns around corners, whilst maintaining a firm grip on the steering wheel with both hands, so I could successfully steer the bus.
17.    Over time, I began experiencing a gradual onset of pain and discomfort in my neck, bilateral shoulders, bilateral arms and thoracic spine.”
It is agreed between the parties that the medical evidence discloses the applicant’s symptoms in his shoulders, arms and thoracic spine are related to his cervical spine.
The applicant’s version of the nature and extent of his duties is not the subject of contest, and I accept it wholly.
At [25] to [32] of his statement, the applicant sets out in detail the treatment which he has undertaken since his alleged injury. I do not propose to repeat those paragraphs verbatim, however, broadly speaking, the treatment consisted of consultations with his general practitioner (GP) Dr Soliman, massage and physiotherapy, referral to and repeated consultations with surgeon Dr Singh, consultation with an exercise physiologist and two rounds of CT-guided injections to his neck.
On 8 May 2024, the applicant again consulted Dr Singh, who recommended C4/C7 anterior and posterior cervical decompression and fusion surgery. It is these procedures which are the subject of this claim.
After the request for surgery was declined, the applicant continued with conservative treatment in the nature of physiotherapy, massage, strengthening exercises and chiropractic treatment in an effort to alleviate his pain and discomfort to his arms, shoulders, neck and thoracic spine. Additionally, the applicant takes prescribed anti-inflammatory medication as requested.
Dr Singh has provided multiple reports to the applicant’s GP, together with a report to his solicitors dated 31 December 2024. As is the case with all of the practitioners, he took a consistent history of the applicant’s occupation as a bus driver. Dr Singh noted the applicant had been having issues with his neck since approximately August 2023 and was unable to see the blind spot on buses, making it unsafe for him to drive.
Dr Singh described occipital neuralgia and symptoms related to C4/5 and C6/7 foraminal stenosis consistent with the findings on MRI scans. According to Dr Singh, the applicant “has been driving buses for several years, and I believe that work is the main contributing factor to his current condition.”
On examination, Dr Singh noted the applicant as having significant stiffness of the cervical spine, in particular difficulty rotating his head to the right, associated with neck and arm pain.
When examined in May 2024, the applicant had radiculopathy down his right arm, which
Dr Singh opined was secondary to multi-level disc bulging and foraminal impingement.
Dr Singh stated the applicant also had central canal stenosis at C5/6 and that when he examined the applicant in September 2024, there were only symptoms on the right side, but he was getting weakness on his left side to the extent he was even having difficulty holding a cup of coffee. The presence of weakness of the left triceps and right biceps were both confirmed on examination, and said to be secondary to nerve impingement.
When asked whether the applicant’s employment with the respondent was a substantial contributing factor to the applicant’s injuries (the incorrect test), Dr Singh stated:
“His employment with [the respondent] is the main contributing factor to his injuries. He has been driving a heavy bus with repetitive neck movements, especially checking the mirrors in the blind spot, and this has likely resulted in aggravation of any previously asymptomatic changes in his cervical spine.”
Dr Singh was also asked to comment on the findings of A/Prof Miniter, the independent medical examiner (IME) retained by the respondent. In his report, Dr Miniter rejected the notion of a workplace injury in the applicant [BG1] and noted there was no diagnosis “except to suggest that this gentleman has degenerative change pertinent to his age.” In answer to that diagnosis, Dr Singh stated:
“I do not agree with this opinion. While he may have had some age-related changes in his cervical spine, his occupation has certainly aggravated his condition to the point that he has nerve impingement. He has clear central and foraminal stenosis with radicular pain and weakness in the arm. I cannot possibly agree with the doctor saying that there is no diagnosis.”
Dr Singh had earlier provided reports to the applicant’s GP dated 14 February 2024 and 13 March 2024. In each of those reports, he confirmed the applicant’s history of difficulty associated with his cervical spine since August 2023, especially on turning his neck to the right. The diagnosis of occipital neuralgia and symptoms related to C4/5 and C6/7 foraminal stenosis in accordance with the MRI scan was confirmed.
In his report to the GP dated 13 March 2024, Dr Singh noted the applicant had some improvement after the cortisone injection to his cervical spine. Nevertheless, the applicant was noted to have significant stiffness to his cervical spine, with particular difficulty rotating his head to the right. Dr Singh recommended a repeat C4/5 injection, as the applicant’s symptoms “certainly are of C5 radiculopathy.” Dr Singh also recommended the applicant consult an exercise physiologist to start with shoulder and periscapular shoulder girdle exercises and neck exercises.” [BG2]
The presence of predominantly right-sided neck pain in the applicant is confirmed in the clinical records of Dr Soliman, GP in an entry dated 29 September 2023. On that occasion, Dr Soliman recorded a two to three-month history of neck pain, especially on the right side, with pins and needles consistent with radicular right-sided pain.
On 18 October 2023, Dr Soliman recorded the results of the applicant’s MRI of his cervical spine. They noted:
·        disc protrusions at C2/3, C3/4;
·        severe right and moderate left foraminal stenosis with potential irritation of the bilateral exiting C4 nerve roots, particularly on the right;
·        C4/5 broad-based posterior disc osteophyte complex, mild to moderate central canal stenosis;
·        severe right and moderate left foraminal stenosis with potential irritation of the exiting C5 nerve roots, particularly on the right;
·        broad-based posterior disc osteophytes at C5/6;
·        moderate central canal stenosis, severe bilateral foraminal stenosis with potential irritation of the bilateral exiting C6 nerve roots;
·        C6/7 broad-based posterior disc osteophyte complex with moderate central canal stenosis, bilateral foraminal stenosis, particularly on the left, with potential irritation of bilateral exiting C7 nerve roots, and
·        moderate bilateral facet joint osteoarthritis and foraminal stenosis at C7/T1.
The findings of the MRI confirmed the applicant suffered from serious degenerative changes in his cervical spine. However, the evidence discloses that pathology was asymptomatic until approximately mid-2023.
Support for Dr Singh’s opinion is provided by the applicant’s IME, Dr Porteous in his report dated 13 January 2025.
Dr Porteous also took a consistent history from the applicant, including some details regarding the length of his shifts and the nature of his duties, including repeated neck movement and twisting. Dr Porteous recorded the MRI findings, and noted the applicant’s current complaints of right neck, shoulder and upper back pain, together with feelings of numbness in the second, third and fourth fingers particularly and weakness in the right hand.
Dr Porteous was specifically asked whether the applicant had suffered a pre-existing condition which had been the subject of an aggravation, and whether employment was the main contributing factor to the aggravation. Dr Porteous replied:
“There is clear underlying long standing degenerative change in the cervical spine, as noted on the MRI scan with multi-level arthrosis with spinal cord effacement and marked foraminal narrowing as noted in the comment on the MRI report detail.
At examination, [the applicant] was very clear that he had onset of neck pain at work, with repeated looking over his shoulder, looking in the blind spot and would have repeatedly been turning his neck, checking mirrors throughout the day as well as turning to look in the rear-view mirror at times. He would have had his arms stretching and reaching out with, at times, when turning bigger corners, repetitive rotation of the steering wheel. The buses are automatic.
In my opinion, the required cervical rotation is enough to consider that it is more likely than not, noting that this came on at work, that his work activity aggravated or exacerbated the underlying degenerative change and his employment was the main contributing factor for the onset of injuries to the point that he was placed off work.”
When asked to comment on A/Prof Miniter’s opinion, Dr Porteous opined:
“[A/Prof Miniter] overlooked important factors. I agree that there is underlying significant degenerative change, but it was asymptomatic until he started undertaking activity that can cause and irritate the condition, which [the applicant’s] history is quite clear that that occurred and it is clear when weighing up all of the information that this is more likely than not a work-related injury. I disagree with [A/Prof Miniter’s] conclusions for the reasons discussed above, and will vary on our conclusions.”
For the respondent, A/Prof Miniter provided a report dated 30 August 2024. In that document, A/Prof Miniter took a more cursory history in relation to the applicant’s work duties. He noted the applicant had complained about “some lower back pain” in about August 2023 and felt that he had to use a pillow while doing his job as a bus driver, which was manageable, but “soon after, without injury, he began to experience neck pain. Please note that the history given to me does not document either injury or significant alteration in the nature of his work.”
Presumably, A/Prof Miniter is referring to frank injury only, as he has an experienced IME who has provided many reports in cases involving injuries in the nature of aggravations, and ought to therefore be aware that claims relating to disease injuries are not unusual and do not require a frank traumatic incident to precipitate them.

A/Prof Miniter reviewed correspondence from Dr Singh, and noted the recommendation for surgical treatment was “interesting” as “this man has neck pain and posterior occipital discomfort but no convincing pain radiation into the arms.”
That finding is plainly inconsistent with those of both Dr Porteous, Dr Singh on repeated examination and of the applicant’s GP.
In providing his summary of the matter, A/Prof Miniter stated:
“Despite the contentions by Dr Singh, the AMA Guides to the Evaluation of Disease and Injury Causation clearly determined that degenerative change in the cervical spine is not related to the workplace. I would be constructively critical of the fact that physiotherapy and chiropractic treatment has continued for such a long period of time, particularly when one evaluates his pain management strategy which includes no more than Nurofen once or twice a week.”
The difficulty with that opinion is the applicant does not contend his cervical spine pathology was caused by his employment. Rather, he alleges his employment aggravated the underlying but previously asymptomatic pathology. A/Prof Miniter does not deal with that suggestion. Indeed, he makes no mention at all of the prospect of injury in the nature of aggravation, which forms the basis of the applicant’s case.
When asked to comment on the history provided and whether the reported mechanism of injury was consistent with the condition diagnosed, A/Prof Miniter said:
“Based on the history elicited and the information provided, I do not believe that there is any mechanism of injury responsible for this matter. He has not improved at all since stopping work and the medical information is clear whereby his cervical degenerative change is not caused by the workplace.”
The applicant does not allege it is. Again, A/Prof Miniter has not addressed the issue of aggravation.
When asked later in his report whether the injury was in the nature of an aggravation, A/Prof Miniter simply replied, “There is no evidence of aggravation, acceleration, exacerbation or deterioration of any pre-existing issue.” That is the sum total of his opinion on the question of aggravation.
To the extent A/Prof Miniter’s opinion deals with the question of aggravation, it is clearly a bare ipse dixit statement. He provides no reason as to why the condition is fully related only to the underlying pathology rather than any aggravation to it.
On balance, I do not accept A/Prof Miniter’s opinion, preferring instead the views of Dr Singh and Dr Porteous in relation to the question of causation.
I find the totality of the lay and medical evidence clearly demonstrates on the balance of probabilities that the applicant suffered an injury to his cervical spine in the nature of an aggravation to an underlying disease process.

Whether the injury has brought about the need for surgery

A work injury need only make a material contribution to the need for any proposed treatment. It is not necessary that the injury be either the main or a substantial contributing factor to that requirement.
In this matter, I have no difficulty accepting the applicant’s evidence that his cervical spine was asymptomatic before the onset of the injury.
A/Prof Miniter is of the view the applicant’s condition relates only to the underlying pathology. This is almost a trite conclusion, as any injury must have at its heart some form of pathological issue. However, it is symptomology, not pathology, which brings about the requirement for any treatment. It is obvious that a worker may have underlying pathology in a body system which is asymptomatic for years until a predisposing traumatic event or course of events leads to the pathology becoming symptomatic. That is clearly the case in this matter.
The MRI of the cervical spine discloses longstanding pathology. The applicant’s history discloses this pathology was asymptomatic until he had been employed as a bus driver and carried out his duties for some years.
There is no evidence to contradict the applicant’s evidence in relation to the duties, or as to his onset of pain.
On balance, I am comfortably satisfied on the balance of probabilities that Dr Singh and
Dr Porteous are correct in asserting the requirement for the proposed surgery is as a result of the work injury, as the aggravation of the pathology has rendered it symptomatic and requiring treatment.

Whether the proposed surgery is reasonably necessary

Dr Singh, treating surgeon, has recommended the surgery at issue. As a treating surgeon,
Dr Singh’s opinion is entitled to be given considerable weight unless it can be shown there is an obvious error in relation to the history taken by him or as to his diagnosis.
Mr McManamey has submitted, and I accept, that Dr Singh has not rushed to the proposed surgery. He has recommended repeated cortisone injections and physical therapy for the applicant’s cervical spine, in the hope of avoiding surgical intervention. After many consultations with the applicant over several years, he has formed the view there is no other feasible alternative to the surgery sought.
Dr Singh deals with the indicia of reasonable necessity which are found in the decision of Roche DP in Diab v NRMA Limited [2014] NSWWCCPD 72. Again, I do not propose to repeat Dr Singh’s conclusions verbatim, however, he is of the view the applicant stands a good chance of success with a good outcome as a result of the proposed surgery and risks serious neurological consequences if he does not undertake it.
A/Prof Miniter for the respondent suggests the proposed surgery is not necessary, and a large part of his basis for so saying is the applicant’s supposed lack of radicular symptoms. However, it is plain from the repeated examinations by Dr Singh, that of Dr Porteous and references in the GP clinical notes that the applicant does have radicular symptoms arising from his cervical spine pathology and does not merely suffer from neck pain.
For his part, the applicant’s IME, Dr Porteous, is somewhat equivocal in relation to the reasonable necessity of the surgical procedure. He said:
“In my opinion, I do not think there is any guarantee that the C4 to C7 anterior cervical decompression and fusion will result in improvement, and in fact, there is a higher risk that it may result in more significant neck pain. Unfortunately, there is no way to predict the outcome of the surgery.
However, I am not the treating neurosurgeon, and it is reasonable given that I accept that there was a work-related aggravation or exacerbation and work was the main contributing factor to that, that his treating surgeon should treat the cervical spine condition once the above is accepted as recommended.”
Although Dr Porteous hazards caution in relation to the surgery, there is inherent risk associated with any surgical procedure. Additionally, as Mr McManamey noted, Dr Porteous essentially defers to Dr Singh’s view as treating surgeon.
It should also be noted the applicant has submitted to exhaustive and wide-ranging conservative treatment and cannot be said to be rushing to surgery. It is apparent Dr Singh has taken a cautionary approach to the applicant’s treatment and has only proposed the surgery after exhausting the reasonably available conservative modalities.
Taking into account the totality of the medical evidence in this matter, I am of the view the proposed surgery is reasonably necessary. As already noted, I am also of the view it is reasonably necessary as a result of the work injury.
This being so, the respondent will be ordered to pay the costs of and incidental to the proposed surgery.

The weekly benefits claim

The outcome of the weekly benefits claim essentially flows from the findings in relation to liability. The parties are in agreement as to the applicant’s pre-injury average weekly earnings (PIAWE). Additionally, the parties agreed that if there was a finding in the applicant’s favour on the question of liability, he was and remains totally incapacitated for employment for the period claimed.
As indicated, the parties have agreed the applicant’s PIAWE was $1,408 per week and increased via periodic indexation from 1 April 2025 to $1,414.05 per week.
The entirety of the period claimed for weekly payments is covered by s 37 of the 1987 Act. As such and given the quite appropriate concessions made in relation to his incapacity, the applicant will be entitled to weekly payments of 80% of those figures.
Accordingly, the respondent will be ordered to pay the applicant weekly compensation pursuant to s 37 of the 1987 Act as follows:
(a) from 23 November 2024 to 31 March 2025 at the rate of $1,126.40 per week, and
(b) from 1 April 2025 to date and continuing at the rate of $1,131.24.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[BG1]check

[BG2]No open “

[2025] NSWPIC 410

15 August 2025