Kay v Charles Sturt University

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kay v Charles Sturt University [2025] NSWPIC 184
APPLICANT:	Grace Kay
RESPONDENT:	Charles Sturt University
MEMBER:	Karen Garner
DATE OF DECISION:	5 May 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; accepted work injury to applicant’s face sustained in a fall; whether the dental treatment was reasonably necessary as a result of the accepted work injury; whether section 59A precludes entitlement to compensation; Held – dental treatment was reasonably necessary as a result of the accepted work injury; section 59A does not operate to preclude the applicant’s entitlement to compensation.
DETERMINATIONS MADE:	1. The treatment proposed by Professor Ironside in a report dated 5 September 2022 is reasonably necessary as a result of the accepted injury on 29 August 2019. 2. Section 59A of the Workers Compensation Act 1987 does not operate to preclude the applicant’s entitlement to compensation. The Commission orders: 3. The respondent to pay the costs of and incidental to the treatment proposed by Professor Ironside in a report dated 5 September 2022 in accordance with s 60 of the Workers Compensation Act 1987. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Grace Kay (the applicant) is a 65-year-old woman who was employed by Charles Sturt University (the respondent) as a full-time technical officer from 2006 until 2021.
On 29 August 2019, as the applicant was walking across campus to the carpark to drive home, her foot caught on some raised pavers and she fell headfirst into a concrete structure (the accident), sustaining injuries which included open comminuted fracture of her nose, degloving injury to her left cheek and muscle strain to the upper chest, trapezius and paracervical muscle in her neck (the injury).
The respondent accepted liability for the injury and paid the applicant weekly compensation and treatment expenses arising out of the injury.
The applicant made a claim for future medical and related expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) in respect of dental treatment recommended by her treating prosthodontist, Professor Jim Ironside in a report dated 5 September 2022 (the treatment):
(a)    resolution Cone Beam CT scan to determine if there are any vertical root fractures developing;
(b)    remove amalgam restorations from teeth 24, 25, 26 and 27 and assess for suitability for restoration, and
(c)    if suitable, restore with core material and place full coverage metal ceramic crowns.
The respondent’s insurer (the insurer) declined liability for the treatment by notice dated
11 April 2023 issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and by notices dated 13 March 2024, 3 July 2024 and 30 October 2024 issued pursuant to s 287A of the 1998 Act.

PROCEDURE BEFORE THE COMMISSION

The applicant commenced proceedings in the Personal Injury Commission (Commission) seeking compensation for the treatment pursuant to s 60 of the 1987 Act by an Application to Resolve a Dispute (ARD) lodged on 13 December 2024. The respondent lodged a Reply to the ARD (Reply) on 6 January 2025.
At a conciliation/arbitration hearing conducted by MS Teams on 12 March 2025, Sarah Warren, counsel, appeared on behalf of the applicant, instructed by Richards Whiteley Lawyers. Ross Hanrahan, counsel, appeared on behalf of the respondent, instructed by Gair Legal.

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.

ISSUES FOR DETERMINATION

The respondent accepts liability for the injury.
The parties agree that the following issues remain in dispute:
(a) whether the treatment constitutes an artificial aid pursuant to s 59A(6)(a) of the 1987 Act, and
(b) whether the treatment is reasonably necessary as a result of the injury as required by s 60 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply to ARD and attached documents, and
(c)    attachments to the applicant’s written submissions dated 18 March 2025, which comprise emails respectively dated 12 March 2025 and 13 December 2024.

Oral evidence

No application for cross-examination was made and no oral evidence was given.

Applicant’s evidence

Applicant

The applicant gave evidence by way of a statement dated 8 December 2024.
The applicant stated that she sustained the injury on 29 August 2019, which resulted in open comminuted fracture of her nose, degloving injury to her left cheek and muscle strain to the upper chest, trapezius and paracervical muscle in her neck.
The applicant stated that following the injury she was taken by ambulance to Orange Health Service and was later transferred to Westmead Hospital where she underwent debridement and repair of her facial injuries. Following her discharge from Westmead Hospital, the applicant received treatment from Dr Judith Ross, general practitioner, Simon Lloyd, physiotherapist, Dr Alaina Taylor, plastic surgeon, and Professor Jim Ironside, prosthodontist.
The applicant stated that as a result of the injury, she continues to suffer from drooping of the left corner of her mouth, left top lip and left cheek; persistent numbness in her left cheek and teeth; her left eye does not fully close; and her smile is asymmetrical.
The applicant stated that her treating prosthodontist, Professor Ironside has advised that she requires four dental crowns in order to attempt to prevent future cracks and fractures in her upper left teeth following trauma to them as a result of the accident.
The applicant stated that she had pre-existing bruxism and noted that Professor Ironside is of the opinion that the blow to her teeth caused by the accident has accelerated the probability that cracks have developed or will develop and result in the need for full coverage crowns.

Treating medical evidence

Professor Jim Ironside, prosthodontist

Professor Ironside has been the applicant’s treating prosthodontist since 2015.
By report dated 5 September 2022, Professor Ironside stated:
“Given the force of the impact to her face when Grace fell at CSU and the nature of her injuries at the time (facial fractures and nerve damage) it would be reasonable to say that there is a probability that future fractures in her upper left teeth will occur.
Where these fractures are small, in general cusps fracture off and the tooth needs a crown. However, when they are more central in the tooth, there is a high risk that they will evolve into a vertical root fracture and the tooth will be lost and require replacement with either a bridge or an implant supported crown. These two treatments cost approximately $8,500 for the combined fees of the radiology, oral surgeon and prosthodontist in the case of the implant and a similar fee for just the prosthodontist to do a bridge should it be the only option.
At present there is the option to simply crown the upper left first and second premolars and the first and second molars with metal ceramic crowns to reduce the risk of any fractures developing in the near future. This is not a bullet proof option but it does reduce the risk.
There is also the risk that the teeth will become non-vital and need root canal treatment, but as these teeth do not respond to sensibility testing, we have no real indication of otheir vitality. However, I would not advocate doing endodontic therapy as a prophylactic treatment, as this process actually weakens teeth and increases the risk of fracture.
It would also be fair to say that as these teeth were already restored with amalgam restorations, they are already weak and the fall and impact have increased their risk of fracture. The radiographs taken on 25 August 2022 confirm the presence of these restorations.
Given these points I would suggest the following:
1.    Mrs. Kay have a high resolution Cone Beam CT scan to determine if there are any vertical root fractures developing as best we can see,
2.    Remove the amalgam restorations for a visual check of any cracks in the crown part of these teeth and if they are okay or just have cuspal fractures, restore them with core material.
3.    Following restoration of the original cavities with core material, provide definitive restorations in the form of metal ceramic crowns.
4.    Provide an occlusal splint as a guard against nocturnal clenching.
Should it become evident that one or more teeth are not viable, a reassessment of the plan be undertaken to provide a new and satisfactory resolution.
The very nature of these types of impacts have in my experience a habit of developing problems sometime after the event and to cease treatment at a certain date does not take into account the slow development of these long-term outcomes. Therefore it is my opinion that providing robust crowns at this point in time would give some long-term surety by reducing the risk and speed of crack propagation.”
A quote dated 5 September 2022 stated that the total cost of the treatment plan proposed by Professor Ironside was $17,416, calculated as follows:
(a)    1 x 627 on tooth 24, Preliminary restoration for crown – direct: $893;
(b)    1 x 627 on tooth 25, Preliminary restoration for crown – direct: $893;
(c)    1 x 627 on tooth 26, Preliminary restoration for crown – direct: $893;
(d)    1 x 627 on tooth 27, Preliminary restoration for crown – direct: $893;
(e)    1 x 615 on tooth 24, Full crown – veneered – indirect: $3,353;
(f)    1 x 615 on tooth 25, Full crown – veneered – indirect: $3,353;
(g)    1 x 615 on tooth 26, Full crown – veneered – indirect: $3,353;
(h)    1 x 615 on tooth 27, Full crown – veneered – indirect: $3,353;
(i)    1 x 071, Diagnostic model – per model: $123;
(j)    1 x 071, Diagnostic model – per model: $123;
(k)    1 x 022 on tooth 25, Intra periapical or bitewing radiograph – per exposure: $93, and
(l)    1 x 022 on tooth 26, Intra periapical or bitewing radiograph – per exposure: $930.
By report dated 3 October 2024, Professor Ironside stated:
“1.     It is my opinion that [the applicant] did gave preexisting bruxism as evidenced by the letter from the late Dr Stephen James, dated 29 May 2015…
2.     There is no evidence from my notes or the letters of Drs. James and McAnulty for or against the notion that the preexisting bruxism was mainly caused by [the applicant’s] employment. The only comments are that her dental situation had become complex due to bruxism and the failure of previous work. There are numerous studies that would support the notion that stress in the workplace is a cause or major contributory factor in bruxism or to use the overall term for the condition, Temporo-Mandibular Disorder.
3.     The support for stress at work as a contributory factor would possibly come from her general medical practitioner, who may have treated her for stress/anxiety. The medical history should have this recorded. Dentally, since the fall, there were no classic symptoms as this area of her face and jaw have a degree of paresthesia due to the fall. Prior to the fall, [the applicant] had instances where she was treated for cracked tooth syndrome in the upper left. An example is tooth 26 which fractured in late 2015 and was restored by Dr. Hunt…
4.     There is a reasonable probability that [the applicant] would have needed crowns in her upper left at some point in time.
a.There is also a reasonable probability that the fall damaged her upper left teeth by extending or starting cracks that were present below her old amalgam restorations. If a tooth has a preexixting crack that is not symptomatic but then suffers a blow as is the case in pint, then there is a high probability that the crack will be prematurely extended. Due to the damage to the nerves in this area there may not be any sensation related to cracked tooth syndrome. The only way to tell would be to remove the amalgam restorations and then using an operating microscope, do a thorough survey of the internal aspects of her teeth to see what cracks might be there.
b.The use of metal-ceramic crowns is quite appropriate as this sort of crown provides a circular band effect to reduce the risk of a crack extending rapidly.
c.There are not satisfactory treatment alternatives other than implant supported crowns, which contain their own set of long-term problems.
My final opinion is that regardless of preexisting restorations and bruxism, the blow to these teeth caused by the accident, has accelerated the probability that cracks have/will develop and result in the need for full coverage crowns.”

Dr Stephen James, dental surgeon

By report dated 29 May 2015, Dr James stated:
“… Over the last year or so due to additional stress in her day to day life [the applicant] started clenching and grinding her teeth and started to change the occlusion to the point the bridge and natural dentition started to show prominent wear facets.”

Dr Timothy McAnulty, dental surgeon

By report dated 22 January 2016, Dr McAnulty stated that the applicant recently had discomfort with tooth 26 and had complex treatment problems.

Clinical records of Ironside Advance Dental

The evidence includes various clinical records of Ironside Advance Dental.

Clinical records of Dr Alaina Taylor, plastic, reconstructive and cosmetic surgeon

Clinical records of Dr Taylor include:
(a)    report dated 24 October 2019, which detailed the injury that the applicant sustained in the accident. Dr Taylor reported that on examination the applicant had ongoing persistent left facial swelling, left lower facial numbness and the sensation of a blocked left nasal airway;
(b)    report dated 10 September 2020, which stated that the applicant continued to experience various symptoms including persistent mild facial droop and depression of the left corner of the mouth, and
(c)    various reports concerning treatment recommended by Dr Taylor including facial surgery performed by Dr Taylor.

Emails

An email from Dental Imaging dated 12 March 2025 stated that the cost of a 3D Bone Scan 1 region under the AMA fees is as follows:
(a) A.D.A. Item No. 026 Scan acquisition 1 region $410, and
(b) A.D.A. Item No. 088 Single arch interpretation $190.
An email from the applicant’s solicitors dated 13 December 2024 stated that Advanced Dental had advised that “they will keep the same fees from 2022” in relation to the applicant.

Independent medical evidence

Dr Paul Nichols, dental surgeon, independent medical expert qualified by the applicant

By report dated 22 November 2022, Dr Nichols stated:
(a)    he reviewed various unspecified medical reports including the report of Professor Ironside dated 16 March 2021;
(b)    the applicant reported ongoing numbness of her upper left teeth and cheek and some residual scarring and “drooping” of the left canthus of the lips;
(c)    on examination, Dr Nichols found that:
(i)the TMJs and muscles of mastication were normal to palpation;
(ii)the subject upper left back teeth are restored with amalgam fillings;
(iii)tooth 27 is extensively work from unprotected bruxing and needs a crown;
(iv)all upper left teeth show minor internal stress fracture to trans-illumination, but no more serious than the right side;
(v)the lower left teeth and implants appear and test as normal;
(vi)the right side and front teeth appear and test as normal;
(d)    Dr Nichols diagnosed:
(i)ongoing parasthesia of the upper left teeth and soft tissues;
(ii)tooth 27 with serious occlusal wear from bruxing, and
(iii)most teeth with internal stress fractures normal for a patient of stated age and bruxing habit;
(e)    Dr Nichols opined that the paraesthesia was caused by the accident and the occlusal wear at tooth 27 was caused by bruxing;
(f)    Dr Nichols opined that the applicant requires treatment in the nature of a full gold crown tooth 27 and occlusal splint, however he considered such treatment to be unrelated to the accident;
(g)    Dr Nichols reported that, whilst he had not sighted x-rays, prognosis should be good with ongoing preventative care from Professor Ironside;
(h)    Dr Nichols recommended that the applicant be referred to Professor Ironside for crown tooth 27 and occlusal splint which he opined to be unrelated to the accident. Dr Nichols also recommended that the applicant have a biannual assessment and preventative care from Professor Ironside which he opined to be related to the accident. Further, Dr Nichols recommended that the applicant be referred to a suitable neurologist for assessment of her paraesthesia which he opined was related to the accident, and
(i)    Dr Nichols stated that if more definitive comment was required of him, he requested that he be provided with a full fascicile dental records and X-rays.
By report dated 29 July 2024, Dr Nichols stated:
(a)    Dr Nichols noted various documents which had not been provided to him, including the report from Dr James in 2015. Dr Nichols stated that none of the reporters had access to pre-incident records or X-rays and are therefore not qualified to proffer definitive opinion as to causation. Dr Nichols stated that he would need to sight Dr James’ records and X-rays, however he noted that
Dr Watson commented that Dr James advised that the applicant had a history of heavy bruxing in 2015;
(b)    Dr Nichols stated that all the reporters accept that the applicant had a previous history of heavy unprotected bruxing;
(c)    Dr Nichols maintained his previous opinion that pre-existing condition was the major cause “by far” of the applicant’s need for current treatment and that the requested treatment would have been required regardless of any alleged trauma, and
(d)    Dr Nichols had not sighted contemporaneous X-rays, however he opined it is likely that Professor Ironside’s recommended treatment is reasonable and necessary but is not related to the accident.

Dr Robert Watson, consultant dental surgeon, independent medical expert qualified by the applicant

By report dated 20 December 2023, Dr Robert Watson stated:
(a)    he reviewed various documents including various treating medical records, the report of Professor Ironside dated 5 September 2022, the report of Dr Paul Nichols dated 22 November 2022 and photographs of the accident site;
(b)    prior to examination on 5 December 2023, the applicant had regular and routine dental checks and dental treatment including crowns and implants;
(c)    on examination, Dr Watson found that:
(i)the buccal mucosa in the area adjacent to teeth 24, 25, 26, and 27 is slightly numb;
(ii)the applicant’s upper left premolar and molar teeth have become somewhat sensitive to cold only in the last several weeks. Prior to that, there was no feeling to sensitivity tests in those teeth;
(iii)there is evidence of generalised occlusal wear, in particular the upper left premolar and molar teeth indicating previous grinding and bruxing;
(iv)the applicant advised that she used to bite the inside of her left hand side cheek in the molar area but does not do that as much now;
(v)the applicant advised that she now seems to clench her teeth rather than grinding or bruxing;
(vi)the applicant advised that she now wears a night guard which seems to help and she feels she no longer needs to see her physiotherapist for muscular issues related to grinding and bruxing;
(d)    Dr Watson diagnosed that:
(i)teeth 24, 25 26 and 27 have large existing restorations and there is evidence of stress fractures in the remaining tooth structure of those teeth;
(ii)the paraesthesia of the upper left premolar and molar teeth evident after the accident and continuing for some years, seems to be less evident now;
(iii)there is only slight numbness of the buccal mucosa adjacent to those teeth;
(e)    Dr Watson opined that Professor Ironside’s treatment plan “is relatively conservative restorative dentistry and does not involve surgery and would most likely require any medication to be taken” by the applicant. Dr Watson noted that Professor Ironside suggested that if one or more teeth are not viable, then the treatment plan should be reassessed to be able to provide a satisfactory resolution to any problems that may occur. Dr Watson opined that the treatment is reasonably necessary, stating that the treatment offers the best opportunity to save [the applicant’s] upper left posterior teeth from further damage for an extended period;
(f)    Dr Watson opined that the accident was a substantial contributing factor to the applicant’s current condition. Dr Watson noted that there is nothing in the documentation to suggest that the applicant had any concerns with the upper left quadrant in her mouth prior to the work accident and that she had received routine dental treatment prior to the accident and there was no indication of any dental problems or concerns at that time, and
(g)    Dr Watson opined that the treatment would help ensure a good prognosis for the applicant’s upper left posterior teeth.

By report dated 5 May 2024, Dr Robert Watson stated:
(a)    it seemed apparent from various reports that the applicant did suffer from pre-existing bruxism prior to the accident;
(b)    it is not apparent from documentation provided whether or not stress fractures were present in the upper left posterior teeth prior to the accident;
(c)    it is now apparent and has been reported on, that stress fractures are now present in the applicant’s upper left posterior teeth. Even if some minor form of stress fractures were present in the applicant’s upper left posterior teeth prior to the accident, it would seem reasonable to assume that at the very least the accident exacerbated those issues;
(d)    it is therefore reasonable to assume that the applicant’s accident “was at least a contributing factor to her current condition and possibly a substantial contributing factor to her current condition”, and
(e)    Dr Watson remains of the view that the treatment is reasonably necessary with regard to injury sustained by the applicant in the accident.

Submissions

Counsel made written submissions which have been considered in full:
(a)    applicant’s submissions dated 18 March 2025;
(b)    respondent’s submissions dated 26 March 2025, and
(c)    applicant’s submission in reply dated 1 April 2025.

FINDINGS AND REASONS

Is the treatment reasonably necessary as a result of the injury as required by s 60 of the 1987 Act

Section 60 of the 1987 Act relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
Burke CCJ in Rose v Health Commission (NSW),[1] stated:
“…Treatment is necessarily purposive. Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment…” (my emphasis)
[1] [1986] NSWCC2; (1986) 2 NSWCCR 32.
In Diab v NRMA Ltd,[2] Roche DP, referring to the decision in Rose v Health Commission (NSW),[3] set out the test for determining if medical treatment is reasonably necessary as a result of a work injury:
“The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC2; (1986) 2 NSWCCR 32 (Rose) where his Honour said, at 48A-C:
…
3.Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and tis place in the usual medical armoury of treatments for the particular condition.”
[2] [2014] NSWWCCPD 72.
[3] [1986] NSWCC2; (1986) 2 NSWCCR 32.
Roche DP also noted that the Commission has generally referred to and applied the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service:[4]
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[4] [1997] NSWCC 1; 14 NSWCCR 233.
Roche DP found:
“In the context of s 60 the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(b)the appropriateness of the particular treatment;
(c)the availability of alternative treatment, and its potential effectiveness;
(d)the cost of the treatment;
(e)the actual or potential effectiveness of the treatment, and
(f)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
The applicant seeks compensation for the cost of the treatment.
The respondent does not dispute that the treatment is medical or related treatment and I am satisfied that the treatment is “medical or related treatment (other than domestic assistance)” within the meaning of s 60(1)(a) of the 1987 Act.
The applicant does not now complain of pain in her teeth. However, the applicant does give evidence that she experiences persistent numbness in her left cheek and teeth. The applicant’s evidence in that regard is consistent with treating medical evidence, particularly clinical records of Dr Taylor and findings on examination by the independent medical experts Dr Nichols and Dr Watson. On that basis, I accept that the applicant does continue to experience persistent numbness in her teeth.
Both Dr Nichols and Dr Watson diagnosed internal stress fractures in most of the applicant’s remaining tooth structure.
I do not accept the respondent’s submission that the treatment cannot be reasonably necessary because it involves preventative measures. As noted above, Burke CCJ in Rose v Health Commission (NSW) (Rose),[5] accepted that treatment may be reasonably necessary if it is “designed to arrest or abate the progress of the condition” or if it is “for the purpose of limiting the deleterious effects of a condition”. In this case, there is consistent medical evidence that the applicant’s dental condition is likely to deteriorate in the future without such treatment. It is clear from the medical evidence in this case, that the purpose of the treatment is to arrest and abate the progress of stress fractures in the applicant’s tooth structure. On that basis, I consider that the treatment in this case falls squarely within the nature of treatment accepted in Rose.
[5] [1986] NSWCC2; (1986) 2 NSWCCR 32.
It is apparent from the respondent’s submissions, that the respondent seems to accept that part of the treatment is presently reasonably necessary, specifically a Resolution Cone Beam CT scan to determine if there are any vertical root fractures developing. In that regard, the respondent submits that the applicant “should not do without a fuller radiographic examination of her teeth before proceeding any further, as suggested by Professor Ironside”.
However, the respondent submits that the balance of the treatment is not reasonably necessary because it is currently premature, pending the outcome of such imaging.
I do not accept the respondent’s submission in this regard because there does appear to ultimately be consensus between the independent medical experts that the treatment is likely to be appropriate and effective to treat the applicant’s dental condition and is reasonably necessary.
The respondent has not made any submissions which specifically addresses the amount of estimated fees for the treatment. There is no evidence which challenges the applicant’s evidence in that regard.
There is no clear evidence of any specific alternative treatment which is likely to be effective to treat the applicant’s dental condition.
Having regard to all the matters set out above, I satisfied that the treatment is reasonably necessary.

Does the need for the treatment arise as a result of a work injury?

A commonsense evaluation of the causal chain is required. In Kooragang Cement Pty Ltd v Bates,[6] Kirby P (as his Honour then was) stated:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is now not accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense 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.”[7]
[6] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[7] (1994) 10 NSWCCR 796 at [810].
In Murphy v Allity Management Services Pty Ltd[8] Roche DP stated:

“… a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]-[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[8] [2015] NSWWCCPD 49 at [57].

The respondent submitted that the treatment does not arise as a result of the accident and injury. The respondent submitted that the applicant’s dental condition and any need for treatment is a result of the applicant’s pre-existing dental condition, including a condition of bruxism.
It is not in dispute that the applicant has a history of dental treatment and amalgam restorations which preceded the accident and injury.
The treating evidence indicates, and there is no apparent dispute, that the applicant has also been treated for cracked tooth syndrome in the past.
I note that the accepted injury involved a comminuted fracture of the applicant’s nose and a degloving injury to her left cheek. Clearly the applicant sustained a substantial facial injury in the accident.
I find the medical evidence to be somewhat challenging and difficult to reconcile both individually and as a whole.
In his report dated 5 September 2022, the applicant’s treating prosthodontist Professor Ironside expressed the opinion that there is a probability that, as a result of the force of the impact to her face she sustained in the accident, and because they were previously weak and resorted with amalgam restorations, the applicant will experience future teeth fractures in her upper left teeth and that there is a high risk that they will evolve into a vertical root fracture and loss of tooth which will require replacement with either a bridge or an implant supported crown. Professor Ironside suggested the treatment to assess and restore the teeth.
However, Professor Ironside’s quote dated 5 September 2022 refers to proposed treatment to teeth 24, 25, 26 and 27, which are lower front teeth. Professor Ironside’s quote does not refer to treatment to the applicant’s upper left teeth nor explain any correlation to the need for treatment to the upper left teeth referred to in the report dated 5 September 2022 and teeth 24, 25, 26, and 27 referred to in the quote.
Professor Ironside’s report dated 3 October 2024 refers to prior treatment for “cracked tooth syndrome in the upper left” and “tooth 26 which fractured in late 2015 and was restored by Dr. Hunt”. Professor Ironside’s report stated that there is a reasonably probability that the accident damaged the applicant’s upper left teeth by extending or starting cracks that were present below her old amalgam restorations and accelerated the need for full coverage crowns.
Other treating evidence refers to various teeth and includes a reference to the applicant having discomfort with tooth 26 on 22 January 2016.
In his report dated 22 November 2022, Dr Nichols, independent medical expert qualified by the respondent, stated that all upper left teeth showed minor internal stress fracture.
Dr Nichols opined that the paresthesia was caused by the accident. Dr Nichols opined that tooth 27 required a full gold crown tooth and occlusal splint which was caused by bruxing and unrelated to the accident. In his report dated 29 July 2024, Dr Nichols accepted that the treatment recommended by Professor Ironside is “reasonable and necessary but is not related to the accident” and that the applicant’s pre-existing condition including heavy unprotected bruxing was the need for the treatment.
In his report dated 20 December 2023, Dr Watson, independent medical expert qualified by the applicant, stated that teeth 24, 25, 26 and 27 had large existing restorations and that there was evidence of stress fractures in the remaining tooth structure of those teeth.
Dr Watson noted a history of insensitivity and recent sensitivity to cold in the applicant’s upper left teeth and evidence of grinding in the upper left premolar and molar teeth.
Dr Watson opined that the treatment was reasonably necessary and offered “the best opportunity to save [the applicant’s] upper left posterior teeth from further damage for an extended period”. Dr Watson opined that the accident was a substantial contributing factor to the applicant’s current condition, noting that there was no evidence that the applicant had concerns with the upper left quadrant in her mouth prior to the accident. In his report dated
5 May 2024, Dr Watson reiterated his opinion that the treatment is reasonably necessary as a result of the accident. Dr Watson stated that it was reasonable to assume that the accident was “possibly” a substantial contributing factor to the applicant’s current condition including stress fractures now apparent in the applicant’s upper left posterior teeth.
The treating and independent medical evidence frequently refers to conditions and need for treatment in respect of the applicant’s upper left teeth but it does not identify nor explain the relationship, if any, between that and the need for treatment to teeth 24, 25, 26 and 27 which are lower teeth.
The respondent’s submissions noted those apparent inconsistencies and deficiencies in the medical evidence and submitted that at “no point is the relationship between these sets of descriptions made intelligible”.
The applicant’s submissions failed to directly address the respondent’s submissions in that regard.
The respondent’s submissions also submitted that there is no medical evidence which specifically deals with the aetiology of “bruxism” and whether or not that description is any different to the “grinding” or “clenching” suggested by the applicant to the independent medical examiner.
It is clear from the evidence that the applicant had a previous history of unprotected bruxing. Dr Nicholas maintained his previous opinion that pre-existing condition was the major cause “by far” of the applicant’s need for current treatment and that the requested treatment would have been required regardless of any alleged trauma.
Dr Nichols did not record in his report a history of the mechanism of injury taken by the applicant and merely refers to the respondent’s letter of instruction. The respondent acknowledges that Dr Nichols did not have access to historical records.
In his report dated 29 July 2024, Dr Nichols stated that if the issue of causation remained in dispute, he recommended that an opinion be sought as to causation from the Head of the Department of Prosthodontics. The respondent has not relied on any such opinion in these proceedings.
However, as the applicant’s treating prosthodontist since 2015, Professor Ironside has direct knowledge of the applicant’s dental condition both before and after the accident. Professor Ironside has knowledge of the applicant’s history of bruxing. Professor Ironside has given evidence that the treatment is required as a result of the substantial impact that the applicant sustained to the left side of her face in the accident. Professor Ironside took a history from the applicant regarding the accident and injury.
Professor Ironside’s opinion is supported by the opinion of Dr Watson who also took a history of the accident and had available to him the records of Dr Taylor, as well as hospital records, general practitioner records and dental records.
I do not need to be satisfied that the injury was the only, or even a substantial, cause of the need for the treatment.
Considering the evidence as a whole, particularly the significant nature of the injury and in the context of the applicant’s dental history, I do find the evidence of Professor Ironside and Dr Watson to be compelling because I am satisfied that it provides a logical and likely explanation for the applicant’s need for the treatment.
Applying a commonsense evaluation of the likely chain of causation of the applicant’s need for the treatment, I consider it likely and I am satisfied that the cause of the applicant’s dental condition including stress fractures in the applicant’s teeth was multifactorial and included impact trauma to the left side of the applicant’s face which the applicant sustained in the accident and which also gave rise to the substantial injuries that she sustained to the left side of her face.
Whilst I acknowledge the difficulties with the medical evidence which I have set out above, considering the evidence as a whole and for the reasons I have given, I am satisfied that the injury materially contributed to the need for the treatment.
Accordingly, I am satisfied that the need for the treatment arose as a result of a work injury.

Does the treatment constitute an artificial aid pursuant to s 59A(6)(a) of the 1987 Act

Section 59A of the 1987 Act provides:
“59A   Limit on payment of compensation
(1)    Compensation is not payable to an injured worker under this Division in respect of any treatment, service or assistance given or provided after the expiry of the compensation period in respect of the injured worker.
(2)    The compensation period in respect of an injured worker is—
(a)  if the injury has resulted in a degree of permanent impairment assessed as provided by section 65 to be 10% or less, or the degree of permanent impairment has not been assessed as provided by that section, the period of 2 years commencing on—
(i)  the day on which the claim for compensation in respect of the injury was first made (if weekly payments of compensation are not or have not been paid or payable to the worker), or
(ii)  the day on which weekly payments of compensation cease to be payable to the worker (if weekly payments of compensation are or have been paid or payable to the worker), or
(b)  if the injury has resulted in a degree of permanent impairment assessed as provided by section 65 to be more than 10% but not more than 20%, the period of 5 years commencing on—
(i)  the day on which the claim for compensation in respect of the injury was first made (if weekly payments of compensation are not or have not been paid or payable to the worker), or
(ii)  the day on which weekly payments of compensation cease to be payable to the worker (if weekly payments of compensation are or have been paid or payable to the worker).
(3)    If weekly payments of compensation become payable to a worker after compensation under this Division ceases to be payable to the worker, compensation under this Division is once again payable to the worker but only in respect of any treatment, service or assistance given or provided during a period in respect of which weekly payments are payable to the worker.
(4)    For the avoidance of doubt, weekly payments of compensation are payable to a worker for the purposes of this section only while the worker satisfies the requirement of incapacity for work and all other requirements of Division 2 that the worker must satisfy in order to be entitled to weekly payments of compensation.
(5)    This section does not apply to a worker with high needs (as defined in Division 2).
(6)    This section does not apply to compensation in respect of any of the following kinds of medical or related treatment—
(a)  the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles (including hearing aids and hearing aid batteries),
(b)  the modification of a worker’s home or vehicle,
(c)  secondary surgery.
(7)    Surgery is secondary surgery if—
(a)  the surgery is directly consequential on earlier surgery and affects a part of the body affected by the earlier surgery, and
(b)  the surgery is approved by the insurer within 2 years after the earlier surgery was approved (or is approved later than that pursuant to the determination of a dispute that arose within that 2 years).
(8) This section does not affect the requirements of section 60 (including, for example, the requirement for the prior approval of the insurer for secondary surgery).”

The respondent initially disputed the claim pursuant to s 59A of the 1987 Act on grounds that the compensation period had expired for the applicant and that the treatment was not treatment within the provisions of s 59A(6)(a) of the 1987 Act.
In written submissions, the respondent asserted that compensation payments were last paid to the applicant on 5 February 2021. However, the respondent now conceded that s 59A(6)(a) is relevant and appropriate[9] if and only if the whole process[10] of the treatment is now regarded as reasonably necessary.
[9] Frost v Ingham Enterprises Pty Ltd [2024] NSWPIC 324 (Frost).
[10] Herborn v Spotless Services Australia Limited [2020] NSWWCCPD 24 at [108].
In Frost, Principal Member Capel held that a replacement crown implant is an artificial aid and that s 59A of the 1987 Act does not apply.[11]
[11] Frost at [121] –[130].
On that basis, I am satisfied that the treatment including dental crowns falls within the definition of “artificial aid” within s 59A(6)(a) of the 1987 Act and that s 59A of the 1987 Act does not operate to preclude the applicant’s entitlement to compensation.

CONCLUSION

I am satisfied, having regard to the considerations identified in Diab v NRMA Ltd[12] and Rose v Health Commission (NSW)[13] that the treatment is, therefore, reasonably necessary.
[12] [2014] NSWWCCPD 72.
[13] [1986] NSWCC 2; (1986) 2 NSWCCR 32.
For all the reasons above, I accept that the treatment is reasonably necessary as a result of the injury.

SUMMARY

In summary, the following findings and orders are made:
The Commission determines:
(a) the treatment proposed by Professor Ironside in a report dated
5 September 2022 is reasonably necessary as a result of the accepted injury on 29 August 2019, and
(b) section 59A of the 1987 Act does not operate to preclude the applicant’s entitlement to compensation.
The Commission orders:
(a) the respondent to pay the costs of and incidental to the treatment proposed by Professor Ironside in a report dated 5 September 2022 in accordance with s 60 of the 1987 Act.

[2025] NSWPIC 184

5 May 2025