Cruceanu v Vix Technology (Aust) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Cruceanu v Vix Technology (Aust) Pty Ltd [2025] NSWPIC 545
APPLICANT:	Octavian Cruceanu
RESPONDENT:	Vix Technology (Aust) Pty Ltd
MEMBER:	John Isaksen
DATE OF DECISION:	14 October 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for a lump sum payment for permanent impairment of the cervical spine as a result of a disease injury pursuant to section 4(b)(ii); worker previously unsuccessful in a claim of a frank injury to the cervical spine; whether the worker can recover compensation when notice of injury not given as soon as possible after alleged injury happened; whether the worker can recover compensation when claim for compensation not made within 6-months of when alleged injury happened; consideration of Albury Real Estate Pty Ltd v Rouse; whether the worker’s employment was the main contributing factor to the aggravation of the disease injury; consideration of AV v AW, and Mannie v Bauer Media Pty Ltd; Held – worker can recover compensation despite not giving notice of the alleged injury as soon as possible because the respondent has not been prejudiced by any failure to give such notice; worker can recover compensation despite not making a claim for compensation within 6-months of the alleged injury because the worker has provided reasonable cause for that omission; worker has not met the onus of proof required to establish that his employment is the main contributing factor to the aggravation of a degenerative cervical spine condition; award for the respondent on the claim made by the worker.
DETERMINATIONS MADE:	The Personal Injury Commission (Commission) determines: 1. The applicant can recover compensation if he is otherwise successful in establishing that he sustained a disease injury in the course of his employment, despite failing to give notice of injury as soon as possible after the alleged injury happened. 2. The applicant can recover compensation if he is otherwise successful in establishing that he sustained a disease injury in the course of his employment, despite failing to claim compensation within six months after the alleged injury happened. 3. Award for the respondent on the claim made by the applicant that he sustained a disease injury to his cervical spine pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 with a deemed date of injury of 11 June 2014. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant in these proceedings, Octavian Cruceanu, makes a claim for a lump sum payment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for
30% whole person impairment as a result of a disease injury he claims to have sustained to his cervical spine due to the work he was required to undertake as a supervisor and technician for the respondent, Vix Technology (Aust) Pty Ltd, between 2007 and
11 June 2014.
The applicant had previously made a claim for lump sum compensation pursuant to s 66 of the 1987 Act as a result of an injury he claims to have sustained to his cervical spine on
10 April 2012 when he stumbled on a block of wood, causing a sudden jolt through his body. That claim was disputed by the respondent and became the subject of a decision of Arbitrator Sweeney dated 5 July 2019 (Cruceanu v Vix Technology (Aust) Pty Ltd [2019] NSWWCC 235) wherein the claim for permanent compensation was dismissed. Arbitrator Sweeney said of the incident on 10 April 2012 at [77]:
“Absent acceptance of neck pain following the incident, it is difficult to postulate how the incident caused injury to the applicant’s neck. I do not doubt that the incident was capable of causing damage to a susceptible neck. The question, however, is whether it did.”
Arbitrator Sweeney concluded that there was no compelling evidence which would establish injury to the neck, other than from the treating specialist, Dr Farey, but the factual assumptions upon which Dr Farey found his opinion could not be proven.
The applicant filed an appeal from that decision to the President of the Personal Injury Commission (Commission), but that appeal was dismissed by President Phillips in a decision dated 11 February 2020 (Cruceanu v Vix Technology (Aust) Pty Ltd [2020] NSWWCCPD 7).
The applicant filed an appeal to the Court of Appeal (Cruceanu v Vix Technology (Aust) Pty Ltd [2020] NSWCA 203) and that appeal was dismissed by a two-one majority decision (Meagher JA and Emmett JA dismissing the appeal; Basten JA allowing the appeal).
The applicant now makes a claim for lump sum compensation for permanent impairment of the cervical spine based upon a different mechanism of injury, namely a disease injury pursuant to s 4 (b)(ii) of the 1987 Act, with a deemed date of injury of 11 June 2014, being the date when the applicant claims he became incapacitated for work due to the injury to the cervical spine. That claim was made by the applicant’s lawyers in a letter of demand dated 19 October 2023 to the AAI Limited t/as GIO (the insurer on risk for the injury that the applicant claims to have occurred on 10 April 2012).
Dispute notices have been issued by EML on behalf of the respondent dated
27 November 2023 and 23 April 2024 wherein the respondent disputes that the applicant sustained injury to the cervical spine in the course of his employment with the respondent. EML is the insurer on risk for the respondent as of 11 June 2014.
The respondent also disputes liability for the compensation claimed by the applicant on the grounds that the applicant did not give notice of injury to the respondent as soon as possible after the injury happened (s 254 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)) and that the applicant did not made a claim for compensation within six months after the injury happened (s 261 of the 1998 Act).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant can recover compensation despite notice of injury was not being given by the applicant as soon as possible after the injury happened
(s 254 of the 1998 Act);
(b)    whether the applicant can recover compensation despite not making a claim for compensation within six months after the injury happened (s 261 of the 1998 Act), and
(c)    whether the applicant sustained an injury to his cervical spine in the course of his employment with the respondent (s 4 of the 1987 Act), and in particular, whether the applicant’s employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease affecting the cervical spine (s 4 (b)(ii) of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was listed for conciliation and arbitration on 7 October 2025. Mr de Meyrick appeared for the applicant. Ms Goodman 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 with attachments, and
(c)    Application to Lodge Additional Documents filed by the respondent on 8 October 2025 (pursuant to a Direction made at the conclusion of the hearing).

Oral evidence

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

FINDINGS AND REASONS

Whether the applicant can recover compensation despite notice of injury not being given as soon as possible after the injury happened

Section 254 of the 1998 Act relevantly provides:
“(1)    Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2)     The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3)     Each of the following constitutes special circumstances:
(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d) the injury has been reported by the employer to the Nominal Insurer in accordance with this Act.”
Mr de Meyrick on behalf of the applicant submits that s 254 of the 1998 Act was not relied upon by the respondent in the previous proceedings before Arbitrator Sweeney, and that the claim that is now being pursued by the applicant is simply an alternative explanation for the neck pain experienced by the applicant which ultimately led to him ceasing work in
June 2014.
Ms Goodman submits that what is now claimed by the applicant is a completely new injury, namely a disease injury alleged to have been caused by the work which the applicant undertook over several years with the respondent, as opposed to a frank injury on
10 April 2012. She submits that notice of this disease injury was not given as soon as possible after the injury happened, and that therefore bars the applicant from being able to recover compensation for this alleged disease injury. Ms Goodman refers to part of the letter of demand sent by the applicant’s lawyers to AAI Limited t/as GIO dated 19 October 2023 wherein it is stated:
“This is a separate and distinct claim to claim number SF1124333 which related only to the frank injury occurring on 10 April 2012.”
In my view, it is not necessary to traverse those particular submissions made by counsel for both parties because I am satisfied that the applicant meets the special circumstances of
s 254 (3)(a) in that the respondent has not been prejudiced by any failure to give notice as required by s 254 (1).
The dispute notices issued on behalf of the respondent do not set out any specific details as to how the respondent has been prejudiced by the delay in giving notice of injury to the cervical spine as a result of a disease process. The respondent has otherwise had the benefit of the applicant being examined by an expert of its choice (being Dr Machart) to answer the claim brought by the applicant and to allow commentary on the opinions of the experts relied upon by the applicant. There is no complaint made by the respondent in the dispute notices or in the submissions made at the hearing that co-workers could not be located for the purposes of testing the applicant’s evidence regarding his work duties.
I therefore find that although the applicant did not give notice of injury, being a disease injury as provided for by s 4 (b) of the 1987 Act, until 19 October 2023, he nonetheless satisfies the special circumstances set out in s 254 (3)(a) of the 1987 Act, and therefore s 254 (1) does not bar him from recovering compensation.
I am also of the view that there was a ‘reasonable cause’ for the delay in giving notice of injury to the cervical spine as a result of a disease process as provided for by s 254 (3)(b). However, this is the same ‘reasonable cause’ which will be applied to the application of s 261 of the 1998 Act, and which I will now address.

Whether the applicant can recover compensation despite a claim for compensation not being made within six months after the injury happened

Section 261 of the 1998 Act relevantly provides:
“(1)    Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
…..
(4)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:
(a)     the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b)     the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
…………
(6)     if an injured worker first becomes aware that he or she has received an injury after the injury was received, the injuries for the purposes of this section taken to have been received when the worker first became so aware.”
The applicant acknowledges the failure of his claim of a frank injury being sustained to his cervical spine on 10 April 2012 in a statement dated 5 June 2024. He states that it was not until his solicitors advised him of the opinions of Dr Bodel from a report dated 10 March 2023 that he became aware that he had a viable claim for his cervical spine condition as a result of an aggravation of a disease process caused by the nature and conditions of his work with the respondent. He states that he then instructed his solicitor to “serve the present workers compensation claim.”
The decision of Albury Real Estate Pty Ltd v Rouse [2006] NSWWCCPD 139 (Rouse) involved a consideration of “reasonable cause” in s 261 (4). Acting Deputy President Roche referred to a much earlier decision of Judge Rainbow in Garratt v Tooheys Ltd [1949] WCR 80 (Garratt) and said at [30-32]:
“30. The phrase ‘reasonable cause’ was considered in Garratt v Tooheys Ltd [1949] WCR 80 (‘Garratt’) at 86-7. In that case Judge Rainbow said at 86:
‘The next question is whether the applicant’s failure was occasioned by some reasonable cause. In its context, cause means the grounds which led the workmen to omit to claim. And the mixture of facts, circumstances and motive which constitute the explanation of the failure must be reasonable. It is sometimes argued that the reasonableness of the cause is only to be measured and considered from the viewpoint of the worker and reference is made for example to King v Port of London Authority [1920] AC 1 where Lord Atkinson at page 24 said: ‘Of course it is reasonable cause having reference to the workman himself’. If this argument means that the inquiry is to be limited to discovering whether the worker believed himself to be acting or thinking reasonably that is not the law: cf Brown v Aveling and Porter, (22 BWCC 165 at 169). It is not the worker who is to be reasonable, it is the cause. As Lord Birkenhead said in King v Port of London Authority, ‘the general atmosphere must always be considered’. The reasonableness is to be measured objectively in the light of every circumstance in the case relevant to showing why the failure to claim occurred: cf Atherton v Chorley Colliery Co Ltd (19 BWCC 314).’
31. Commenting on Garratt C P Mills said at page 468:
‘The mixture of facts, circumstances and motive which constitute the explanation of the omission must be reasonable, considered from the view point of the worker not in the sense that he considered his omission reasonable, but rather in the sense that the cause of the omission is reasonable in the light of all the circumstances in which the worker found himself’.”
ADP Roche then said in Rouse at [35]:
“I agree with the comment by C P Mills that it is the ‘mixture of facts, circumstances and motive which constitute the explanation of the omission’ that must be reasonable. If the explanation is ‘reasonable’ and the failure to claim within six months was occasioned by that ‘cause’, then the subsection has been satisfied.”
From my review of the evidence, I accept that the applicant previously had a genuine belief that his neck pain, which led to two operations to the cervical spine in June 2014 and
July 2015, was caused by the incident which occurred at work on 10 April 2012. The applicant was entitled to rely upon the opinion of his treating specialist, Dr Farey, who ultimately supported the causal connection between the incident on 10 April 2012 and the onset of symptoms in the neck. I accept that this motivated the applicant to pursue his claim for lump sum compensation as a result of an injury sustained in the incident at work on
10 April 2012.
In light of those circumstances which the applicant has found himself in, whereby he has been unsuccessful in his claim of a frank injury to the cervical spine but has been subsequently advised by his legal advisers that there remains a viable claim against the respondent for a disease injury, I consider the omission of a claim for a disease injury until October 2023 to be reasonable and meets the exception provided in s 261 (4) of the 1998 Act.
I also accept that if the applicant is otherwise successful in establishing an injury pursuant to s 4 (b) of the 1987 Act, that he does suffer serious and permanent disablement from that injury, and therefore meets the requirements of s 261 (4)(b) of the 1998 Act. The applicant has undergone two fusion operations to the neck, the second operation involving stabilisation and fusion from C4 to C7. The applicant has not returned to work for over 10 years now, despite being 58 years of age. That evidence is sufficient to establish a serious and permanent disablement.
The applicant is therefore not barred from recovering compensation by way of a disease injury to the cervical spine due to his failure to make a claim for compensation for that injury within six months of when the injury happened.
I would add that the facts and circumstances which I have referred to in being satisfied that there was a ‘reasonable cause’ for the delay in making a claim for compensation also extends to a ‘reasonable cause’ in the application of s 254 (3)(b) of the 1998 Act as it applies to delay in providing notice of injury.

Whether the applicant sustained a disease injury in the course of his employment with the respondent

The applicant’s evidence

The applicant has provided statements dated 7 April 2017 and 17 November 2022 in regard to the activities he undertook while working for the respondent and the development of neck pain which led to him ceasing work and undergoing two major operations.
The applicant states that he commenced employment with the respondent as a technician in 2007. He states that those duties involved maintenance of ticketing machines at different bus depots throughout Sydney. He states that the machines were heavy but had to be retrieved from buses and carried to the workshop to carry out repairs.
The applicant states that he was promoted to the position of supervisor in 2010, which expanded his work duties to the completion of reports, but also required the applicant to still do technician work.
The applicant has provided a list of 28 different jobs which he undertook for the respondent in his statement dated 7 April 2017. Those jobs included:
(a)    checking, testing and repairing ticket machines and driver consoles at depots;
(b)    carrying equipment on and off buses when technicians were not available for that work, and
(c)    helping technicians at depots to remove and fit repair equipment on the buses when there was an excessive workload.
The list provided by the applicant also includes many jobs of an administrative and clerical nature.

The applicant states that he would regularly carry his tool bag on his shoulder because he was required to travel to different depots. He estimates that this tool bag weighed about 15kg. He states that he would also carry a box of parts, which he estimates to have weighed another 15kg.
The applicant states that he spent a lot of his time leaning over a desk in an office chair while undertaking repairs, often remaining in the same position for hours on end. He states that there were a few occasions when he experienced stiffness in his neck and shoulders after a long day of leaning over a desk.
The applicant states that he felt severe pain in his right knee and right wrist immediately after he stumbled at work on 10 April 2012. He states that he had about three weeks off work and then returned to his “ordinary duties”, but he could not do his “pre-injury duties”. The applicant states that by this time he was experiencing pain and stiffness in his neck and across his shoulders, but his main concerns were the pain in his right leg and lower back.
The applicant states that he was off work due to his injury from July 2012 until about November 2012, and he underwent surgery to his right knee during this time. He states that he worked from home for five hours per day, for three days per week, from November 2012 until February 2013.
The applicant states he returned to work in the workshop for five hours per day, for three days per week, from February 2013 until July 2013, but he was still experiencing constant and sharp pain in his back, and his right knee had not fully recovered. He states that he was certified unfit for work in July 2013, and he underwent another operation on his right knee in October 2013.
The applicant states:
“I also found at this time my neck symptoms, which had commenced in the weeks following the accident and continued to worsen, were causing me much more difficulty. I would get numbness in my hands, losing the feeling in the last two fingers of each hand. I had never experienced anything like this prior to the accident.”
The applicant states that he was certified for light work for six hours for one day per week from February 2014 until May 2014. He states that he was referred to Dr New, orthopaedic surgeon, in early 2014 in regard to worsening back and neck problems. He states that
Dr New referred him to another orthopaedic surgeon, Dr Farey, after scans of the cervical spine revealed that he was potentially in danger of paralysis.
The applicant states that he underwent surgery to his cervical spine on 11 July 2014, and he has not been able to return to work since he underwent that surgery. He states that he underwent further neck surgery on 15 July 2015.

The medical evidence

There are clinical notes in evidence from the applicant’s general practitioner, Dr Kodsi, from 22 March 2010 until 13 February 2024. There is a reference to lower neck pain in an entry on 23 March 2010. There is otherwise no specific reference to neck symptoms in those clinical notes until after the applicant sees Dr New in January 2014.
Dr New provides a report dated 23 January 2014 following his initial consultation with the applicant. That report concentrates on complaints made by the applicant of back pain with right sided radicular pain. There is no reference to any problems with the neck, but Dr New orders scans of the cervical spine and lumbar spine.
Dr New then writes in a report dated 26 February 2014 that he is concerned that there is stenosis at C5/6 which is causing some early cervical myelopathy. Further tests are undertaken and Dr New then refers the applicant to Dr Farey because Dr New is concerned about myelomalacia at C5/6.
Dr New has also provided a report at the request of the applicant’s lawyers dated
21 August 2014. Dr New records details of the incident which occurred at work on
10 April 2012, although he does not record any neck symptoms following that incident.
Dr New does not record any details of the work activities undertaken by the applicant with the respondent.
Dr New diagnoses the applicant as having C5/6 cervical myelopathy. He is asked whether the applicant’s employment has been a substantial contributing factor to various injuries sustained by the applicant, and in regard to the cervical spine, Dr New opines: “…he states that he had not had any problems with his neck prior to this incident, but the spinal stenosis that he had would almost certainly have predated that incident.” I accept from the contents of the report that the “incident” is what occurred on 10 April 2012.
Dr Farey initially sees the applicant on or about 15 May 2014 and writes in a report following that consultation that the applicant presents with symptoms which are secondary to cervical spondylotic myelopathy, and that the applicant requires decompression and fusion surgery for this condition. Dr Farey records that the applicant had experienced intermittent neck pain for a period of six months and his symptoms were of spontaneous onset. He also notes a history of an accident two years ago when the applicant stepped on a plank of wood and slipped, and there was the development of pain in the low back and right knee. Dr Farey provides no opinion on the cause of the onset of neck symptoms and the need for surgery in this report.
Dr Farey provides a report to the applicant’s former lawyers dated 29 November 2016.
Dr Farey opines in regard to the applicant: “His neurological symptoms were related to spinal cord damage occasioned by his initial injury which produced C5/6 disc protrusion and spinal cord compression.”
Dr Farey provides a further report to the applicant’s current lawyers dated 2 August 2018.
Dr Farey states that he was not provided with a complete history of the applicant’s neurological symptoms at the first consultation, but he considers it may be due to the applicant being very distressed about his pain. Dr Farey nonetheless opines:
“In my opinion the onset of neck pain following the accident, the description of intermittent numbness in the right lower limb and the subsequent development of more advanced symptoms in the upper limbs including numbness coupled with the presence of instability at the C5/6 level as manifested by retrolisthesis and the presence of myelomalacia which takes time to develop is indicative of an exacerbation of his underlying condition following his accident of 10^th April 2012.”
Dr Bodel, orthopaedic surgeon, has provided reports at the request of the applicant’s lawyers dated 9 March 2022 and 10 March 2023.
In his report dated 9 March 2022, Dr Bodel records that the applicant’s work “was always fairly fine technical work although there was some physical work involved.” Dr Bodel records details of the incident on 10 April 2012. He records that the applicant was aware of an immediate onset of pain in the right wrist and right knee, but also the neck and shoulders, and that over a period of time the applicant developed numbness and tingling in some of the fingers of both hands.
Dr Bodel records that the applicant underwent an operation to his right knee on
10 October 2013 and then returned to work for three days a week, but he began to develop neck and back pain. He then sets out the treatment which the applicant underwent with
Dr New and Dr Farey. Dr Bodel records that the applicant went back to work after the first operation to the cervical spine for about six to eight weeks, and then did light duties work for three days per week until 12 November 2014, when his employment was terminated.
Dr Bodel states that he notes the applicant’s statement dated 7 April 2017 “confirming the history of the mechanism of injury and the treatment protocol.”
Dr Bodel provides the following diagnosis:
“He has degenerative disc disease in the cervical spine at C5/6 and C6/7. The trip and fall event that occurred at work has caused the aggravation, acceleration, exacerbation and deterioration of that disease process and led to the need for the two surgical procedures. He has suffered an external disc disruption causing compression of the C7 nerve root, for which the surgical procedures have been undertaken, but no benefit has been achieved.”
Dr Bodel is asked if the applicant’s employment with the respondent from 2007 until June 2014 was a main contributing factor to an aggravation of the applicant’s neck condition, and Dr Bodel replies:
“As I have indicated above, there is evidence of some pre-existing degenerative change at C5/6 and C6/7. The trip and fall event caused a very significant aggravation, acceleration, exacerbation and deterioration of that disease process and work is the main contributing factor to that.”
Dr Bodel provides a supplementary report dated 10 March 2023 after he is asked if the nature and conditions of the applicant’s work is a contributing factor to his injury. Dr Bodel answers that he agrees with this and opines:
“The nature and conditions of his work was mostly fine technical work but occasionally did involve some heavy lifting and in that circumstance the nature of the work is a contributing factor by way of aggravation, acceleration, exacerbation and deterioration of an underlying disease process which includes cervical degenerative disc disease and the long-standing juvenile rheumatoid arthritis which he was diagnosed with in his first decade of life.”
Dr Bodel opines that the cervical spine condition is the aggravation of a disease process “caused by the nature and conditions of his work in general” and further aggravated by the incident on 10 April 2012.
Dr Bodel also opines:
“I am satisfied that the employment between 2007 and June 2014 is the main contributing factor by way of aggravation, acceleration, exacerbation and deterioration to his underlying degenerative disc disease in the cervical spine.”
Dr Machart, orthopaedic surgeon, has provided a report at the request of the respondent dated 4 March 2024. He is provided with copies of the applicant’s statements dated
7 April 2017 and 17 November 2022.
Dr Machart records a history of the incident on 10 April 2012 and the onset of pain in the right knee and right wrist. He records that the applicant went on limited duties, including at one stage working from home. Dr Machart records that the applicant developed numbness in some of the fingers of both hands, but there was no specific injury. He records the history of treatment of the cervical spine by Dr New and Dr Farey. He is aware of the applicant’s claim that his duties included lifting heavy equipment and working in a bent position.
Dr Machart diagnoses multilevel cervical spondylosis treated by fusion. He does not consider there is any connection between the applicant’s employment and the cervical pathology. He writes that the neck symptoms developed when the applicant was on light duties. Dr Machart concludes: “Linking the degenerative condition to his work, between 2007 and 2012, and subsequently for 2 years on light duties, is a hypothetical without clinical evidence.”
There is reference in the report from Dr New dated 21 August 2014 of a report from Dr Pope, consultant neurosurgeon, dated 1 May 2013. That report from Dr Pope is not in evidence, however Dr New writes that Dr Pope had an extensive history of the lumbar spine, but there was no indication of cervical spine pathology at all.
There is a reference in the report from Dr Bodel dated 9 March 2022 of the applicant seeing Associate Professor Owler, who is a neurosurgeon, on 3 September 2013 regarding neck complaints, and there is a reference to a letter of referral to Associate Professor Owler in an entry made by Dr Kodsi on 25 May 2013. However, there is no report or notes from Associate Professor Owler in evidence.

A summary of the submissions of the parties to this dispute

Mr de Meyrick submits that the applicant was engaged in heavy work while employed with the respondent, and that included work after the incident on 10 April 2012. Mr de Meyrick refers to the applicant’s evidence, which was not challenged by any evidence from the respondent, that the applicant returned to his ordinary duties about three weeks after the incident on 10 April 2012.
Mr de Meyrick submits that there can be only two conclusions as to the cause of the applicant’s neck symptoms, being either a spontaneous onset of symptoms or aggravation caused by the work activities undertaken by the applicant. He submits that the evidence of the development of neck symptoms some 12 to 18 months after the incident on 10 April 2012 while the applicant was still working provides compelling evidence that the applicant’s employment has been the main contributing factor to the aggravation of the disease affecting his cervical spine.
Ms Goodman submits that there are no contemporaneous records of neck symptoms, other than an entry made by Dr Kodsi on 23 March 2010, until the applicant sees Dr New in early 2014, and then it is in the absence of any actual complaints made by the applicant regarding his neck.
Ms Goodman points out that those treating specialists who have provided reports (Dr New and Dr Farey) do not support the claim of a disease injury by the applicant. That claim is only supported by Dr Bodel, but no weight should be given to Dr Bodel’s opinion because
Dr Bodel changes his opinion on the cause of the applicant’s neck condition without any explanation, and the revised opinion in the second report dated 10 March 2023 is provided without any analysis or understanding of the work actually undertaken by the applicant with the respondent.

Determination

All of the specialists whose reports have been referred to in the summary of medical evidence conclude that the applicant has extensive degeneration in his cervical spine.
Mr de Meyrick does not seek to establish injury other than as provided for by s 4(b)(ii) of
the 1987 Act, which provides:
“injury:
……
(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.”
The application of s 4(b)(ii) has been well summarised by DP Snell in AV v AW [2020] NSWWCCPD 9 (AV v AW) at [76-78]:
“76. Where the relevant aggravation involves both employment and non-employment factors, the evaluative process involves a consideration of the causative role of both. An evaluation that involved only employment factors would leave the provision with no work to do. This would be inconsistent with the context of the provision. It would also be inconsistent with the plain meaning of the words. There is a general presumption against surplusage in statutes.
77. It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
78. The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
I accept that some of the activities which the applicant undertook while employed with the respondent could have contributed to an aggravation of his cervical spine disease. The following activities in particular could have placed strain and stress upon the cervical spine so as to cause an aggravation of the degeneration in the applicant’s cervical spine:
(a)    lifting and carrying of ticket machines and driver consoles;
(b)    carrying a tool bag on the shoulder, as well as carrying a box of parts in one hand, each of which weighed about 15kg, and
(c)    leaning over a desk, sometimes for hours, to undertake repairs.
Those activities referred to could lead to what Burke CCJ referred to in Perry v Tanine Pty Ltd t/as Ermington Hotel (1998) 16 NSWCCR 253 (Perry) at [258]: as “classically a disease process”, being “a failure of an area of the body to cope with repeated stress imposed upon it and reacts to that stress by developing swelling, pain and loss of function as a consequence.”
The description of those activities has not been challenged by any evidence from the respondent, thus leading Mr de Meyrick to submit that this is a strong case in establishing an injury pursuant to s 4(b)(ii), where it is only necessary for employment to be the main contributing factor to the aggravation of the disease, rather than the main contributing factor to the contraction of the disease itself.
DP Snell in AV v AW at [78] states that the absence of medical evidence “is not necessarily fatal” to establishing “main contributing factor”, because “satisfaction of the test is to be considered on the whole of the evidence”. However, DP Snell also states that medical evidence to address the test is “both relevant and desirable”.
I am also mindful of what was said by Keating P in Mannie v Bauer Media Pty Ltd [2016] NSWWCCPD 47 (Mannie) at [87]:
“Whether the employment was capable of causing injury is not the point. Mr Mannie carried the onus of establishing that the employment was the main contributing factor to the aggravation. Further, whether persons engaged in the work of a kind that Mr Mannie engaged in have ‘often being found aggravate neck conditions’ does not advance Mr Mannie’s appeal.”
I consider that medical evidence on the issue of main contributing factor as it applies to this dispute is “both relevant and desirable” because the evidence of the applicant alone cannot reconcile the competing causal factors (both work and non-work related) of the aggravation of the applicant’s cervical spine disease.
There is no report from Dr New on the issue of a disease injury, despite that doctor regularly providing opinions in this jurisdiction.
No further reports have been provided by Dr Farey since the previous litigation involving the incident on 10 April 2012, so that his opinion remains that the applicant had an exacerbation of his underlying cervical spine condition as a result of the injury on 10 April 2012.
There would appear to be a report from Dr Pope dated 1 May 2013, but that report is not in evidence. There is no report in evidence from Associate Professor Owler.
The opinion on the issue of a disease injury from Dr Machart is brief: “Linking the degenerative condition to his work…is a hypothetical without clinical evidence.” However,
Dr Machart is at least aware that the applicant claims that his work duties included heavy equipment and working in a bent position, but ultimately discounts those factors.
The applicant is therefore left with the opinion of Dr Bodel to support this claim. However, I have come to the conclusion that the opinion expressed by Dr Bodel cannot be relied upon.
Firstly, Dr Bodel changes his opinion as to the cause of the applicant’s cervical spine between his first and second report without providing any explanation for two quite different conclusions.
Dr Bodel in his first report opines that the trip and fall event “has caused” the aggravation of the disease process in the cervical spine which then led to two operations and has “caused a very significant aggravation” of the disease process. These are dogmatic conclusions made by Dr Bodel.

However, Dr Bodel in his second report opines that it is the nature and conditions of the applicant’s work “in general” which has caused an aggravation of the disease process, which has then been further aggravated by the incident on 10 April 2012. That change in opinion to a fundamental issue in this dispute is not explained by Dr Bodel.
Secondly, Dr Bodel takes almost no details of the work undertaken by the applicant with the respondent which the applicant now claims has aggravated his degenerative cervical spine condition. The limited details which are recorded by Dr Bodel indicate that his understanding of the applicant’s work was “fairly fine technical work although there was some physical work involved”. That physical work is not set out in any detail by Dr Bodel.
The opinion expressed by Dr Bodel in his second report is based upon the applicant “occasionally” doing some heavy lifting. However, I am given no information from Dr Bodel as to what “occasionally” might mean, be it in terms of hours, days, weeks or months. There is no explanation provided by Dr Bodel as to how occasional heavy lifting (however often that might be) not only contributes to the aggravation of the applicant’s degenerative cervical spine, but then becomes the main contributing factor to that aggravation.
The applicant has identified certain activities which he undertook as part of his work duties that could have contributed to the aggravation of his cervical spine condition, and which might ultimately be found to be the main contributing factor the aggravation of his disease. Those activities include lifting and carrying ticket machines, carrying a heavy tool bag and heavy box of parts, and leaning over a desk for extended periods of time. None of those activities are explored by Dr Bodel in his reports. Instead, Dr Bodel concludes that the nature and conditions of the applicant’s work “in general” has caused the aggravation of the disease process, without setting out what “in general” might be.
I therefore have to agree with the submission made by Ms Goodman that there has been no analysis or interrogation undertaken by Dr Bodel of the work which the applicant performed for the respondent which leads to his conclusion that the applicant’s employment between 2007 and June 2014 is the main contributing factor by way of aggravation to the underlying degenerative disc disease in the cervical spine.
In Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 (Hevi Lift), McColl JA (Mason P and Beazley JA agreeing) said at [84]:
“It has long been the case that a court cannot be expected to, and should not, act upon an expert opinion the basis for which is not explained by the witness expressing it.”
In my view, Dr Bodel has not set out the basis for his opinion in his second report, and I cannot, as a consequence, having any confidence in relying upon this opinion.
Thirdly, although Mr de Meyrick submits that there are only two competing causes, being either a spontaneous onset of symptoms or aggravation caused by the work activities undertaken by the applicant, Dr Bodel only engages in a brief consideration of the potential employment factors leading to aggravation. Dr Bodel does not consider any non-work-related factors, which is a requirement referred to in AV v AW for the application of s 4(b)(ii).
That is important because Dr Farey records in May 2014 that the applicant experienced a spontaneous onset of neck symptoms six months before he examined the applicant, which is at a time when the applicant was either not working at all because he had undergone an operation to his right knee or, if some latitude is given to the chronology provided by the applicant, he had returned to work, but only for six hours per day for one day per week.
Dr Bodel does not give consideration for the potential of a spontaneous onset of symptoms, particularly at a time when the applicant is either not working at all or only undertaking several hours of work per week.
Having considered the lay and medical evidence in this dispute, I am not satisfied that the applicant’s evidence alone is sufficient to establish a disease injury pursuant to s 4 (b)(ii) of the 1987 Act. Medical evidence is “both relevant and desirable”, but the medical evidence relied upon by the applicant does not meet the necessary level of explanation to allow for a finding in favour of the applicant.
There will therefore be an award for the respondent on the claim made by the applicant that he sustained a disease injury to his cervical spine pursuant to s 4(b)(ii) of the 1987 Act.

[2025] NSWPIC 545

14 October 2025