Michelsen v State of New South Wales (Nepean Blue Mountains Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Michelsen v State of New South Wales (Nepean Blue Mountains Local Health District) [2025] NSWPIC 5
APPLICANT:	Vivien Lee Michelsen
RESPONDENT:	State of New South Wales (Nepean Blue Mountains Local Health District)
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	7 January 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; lump sum claim for the cervical spine relying on disease provisions in section 4(b); the respondent disputes the employment was the main contributing factor to the contraction or aggravation of disease; pursuant to section 4(b)(ii) the applicant’s employment with the respondent is the main contributing factor to the aggravation of cervical spine disease; the appropriate deemed date of injury is 25 March 2014 (being the date of first incapacity) and the Application to Resolve a Dispute is amended accordingly; Held – the lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment of the cervical spine and scarring from the deemed date of injury of 25 March 2014; the documents to be referred to the Medical Assessor are to include those attached to the Application to Resolve a Dispute and the Reply.
DETERMINATIONS MADE:	The Commission determines: 1. Pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 the applicant’s employment with the respondent is the main contributing factor to the aggravation of cervical spine disease. 2. The appropriate deemed date of injury is 25 March 2014 (being the date of first incapacity) and the Application to Resolve a Dispute is amended accordingly. 3. The lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment of the cervical spine and scarring from the deemed date of injury of 25 March 2014. 4. The documents to be referred to the Medical Assessor are to include those attached to the Application to Resolve a Dispute and the Reply.

STATEMENT OF REASONS

BACKGROUND

The claim for compensation in these proceedings is confined to lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for injury to the cervical spine and scarring.
Because of the decision by the Court of Appeal in the recent case of Haddad v The Geo Group Australia Pty Limited[1] Mr Hickey sought to amend the date of injury relied upon by the applicant to the deemed date being the date of first incapacity. He raised several alternatives, 25 March 2014 seems the appropriate choice as it is the first date of incapacity in the WorkCover NSW-certificate of capacity issued by Dr Sebastian.
[1] [2024] NSWCA 135, Haddad.
The respondent submitted that the applicant needed to plead their case with the correct date of injury and urged for the matter to be discontinued. However, the respondent’s counsel could not point to any prejudice if I made the amendment, so the amendment was made. The respondent’s underlying complaint was that the applicant had undergone surgery to her cervical spine on 28 May 2014, performed in the public hospital system, and so there had been no determination that the surgery was reasonably necessary as a result from a work related injury. The applicant does not make a claim for s60 expenses and therefore the Commission cannot determine that matter.
The applicant confirmed that she was relying on ss 4(b)(i) and 4(b)(ii) of the 1987 Act to establish injury to the cervical spine. The respondent confirmed that the sole issue was whether employment was the main contributing factor.[2]
[2] Tp7.30.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter proceeded to arbitration hearing before me on 7 November 2024. Mr Stephen Hickey, counsel, instructed by Mr Bradley Corcoran, solicitor, appeared for Ms Michelsen, who was present. Mr Bill Loukas, counsel, instructed by Ms Bartolo, solicitor, and
Ms Lumsden from the employer and Kathleen from the insurer represented the respondent.
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.

EVIDENCE

Documentary evidence

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

Oral evidence

There was no oral evidence. Both counsel made oral submissions which have been sound recorded and a copy of the recording is available to the parties. A written transcript (T) has been made from the recording.

FINDINGS AND REASONS

Ms Michelsen sets out her employment history in her statement including that she became an enrolled nurse in 2006 and worked at Nepean Hospital from 2007. In 2009 she went over to Community Health at Lemongrove campus where she would undertake home visits to perform wound care. She states that in that role she was required to regularly put herself in awkward physical positions to perform the wound care. She had to bend in confined spaces and lift large limbs. She says she was required to perform a lot of compression bandaging that was often repetitive, laborious and took place in difficult positions as the beds and chairs in a patient’s home were not as ergonomic as in the hospital.
She says she remembers complaining about neck and upper back pain in 2010 that radiated down behind the shoulders and shoulder blades.
At [13] in her first statement she describes having to work in clinics within the health centre at Lemongrove and this resulted in her treating double the number of clients than previously and most requiring compression bandaging.
She says in early 2013 she developed an increase in her neck pain associated with stiffness and she had physiotherapy treatment for six months and then it settled. She says in December 2013 she was at the work Christmas party and when using the toilet she experienced severe upper back and neck pain. She submitted a notification of injury form on 13 January 2014. She recounts that the insurer denied liability for her injury in the s 74 notice dated 21 February 2014.
The applicant outlines her attendances on Dr Jacqueline McMaster, neurosurgeon, who on 17 March 2014 recommended she undergo cervical spine surgery and that her injury was sustained in the course of her employment. She says she requested the insurer to review its declinature in light of Dr McMaster’s opinion but on 9 April 2014 it advised that it maintained the declinature.
The applicant says she had numbness in her left leg and went into a depressive state so she essentially gave up on her claim and underwent cervical spine surgery on 28 May 2014. The applicant sets out her ongoing symptoms, subsequent employment and domestic restrictions.
The Employee’s Recurrence Report of Injury Form Following Return to Normal Duties refers to recurrence on 5 November 2013 with nil time off work. It is stated that the original injury occurred in 2008 and for the last two years she has had pain on and off including to her upper back, neck, across her shoulders with left arm pain and tingling, numbness in the left hand. She describes severe pain in December 2013 requiring physiotherapy treatment.[3] She provides similar details in her claim form dated 4 February 2014,[4] her letter dated
[3] ARD p 5.
[4] ARD p 12.
[5] ARD p 6.
[6] ARD p 8.
19 March 2014[5] and in her review application dated 20 March 2014.[6]
The respondent’s injury notification form stated the date of injury was 5 November 2013 and referred to injury to the lower cervical and upper thoracic areas. The applicant completed her permanent impairment claim form and repeated this date of injury. However, it is clear from her account that there was no “frank injury” and s 4(b) of the 1987 Act with disease provisions was potentially relevant.
The dispute notice issued by the insurer on 21 February 2014 only considered s 4(a) of the 1987 Act and not the disease provisions.[7] The review notice issued pursuant to s 287A of the Workplace injury and Workers Compensation Act 1998 added that if it was claimed that the applicant suffered a disease, then the insurer found that her employment was not the main contributing factor to the injury. The insurer referred to significant symptoms having occurred outside of work. A further s 78 notice was issued on 4 July 2024 maintaining the declinature based on report dated 21 May 2024 from Dr Gothelf, who found that work was not the main contributing factor to a cervical spine injury, and the cervical spine condition was constitutional.
[7] ARD p 20.
Mr Hickey submitted that it was important that in her claim form and other correspondence with the insurer that the applicant refers to lower cervical pain because the site of the fusion was C6/7.[8] He submits that Dr Yousaf completed the insurer’s questionnaire dated
7 February 2014, providing an opinion about causation. The doctor states:
“from the stated symptoms and pain and description of injuries sustained it seems reasonable that her symptoms were secondary to the work duties.”[9]
[8] T15.30.
[9] ARD p 100.
Dr Yousaf answers the other questions on the form consistent with the information given by the applicant in her statement such as about the nature of her work duties. Mr Hickey submitted that Dr Yousaf’s view is that employment has been the main contributing factor to the cervical injury.
The applicant also relies upon the physiotherapy notes which commence on
5 November 2013. This entry appears to state “initial improvement 10/10/13 had shopping trip ↑ pain. Today pain ↑↑ radiation under arm. * pain across back + shoulders worst looking down”. Mr Hickey did not read out the reference to shopping trip as he could not make it out.[10] This reference to shopping trip was referred to by the insurer in their notice dated
[10] T19.21
[11] ARD p 29 third dot point.
9 April 2014, with the insurer commenting there was no reference to any work injury.[11]
Mr Hickey also referred to the physiotherapist’s note for 8 November 2013 that the applicant was much improved, 85% better and a statement that there was poor ergonomics in the office. He noted that the entry for 24 December said that Nurofen, Panadol and rest helped and made reference to her being a Community Nurse doing wound dressings and she was better when standing.[12]
[12] ARD p 106.
The physiotherapy notes have an undated history that “3/12 ago turned to read…into wardrobe- resolved (with) Voltaren + Panadol” and “2/52 ago- turn head → triggered pain (more frequent, severity similar)”. There is also a reference to “PH” which I infer means “past history” and it is stated “Last year Neck +thoracic. Nil Prev neck injury”.[13]
[13] ARD p 107.
Mr Hickey also relied upon the entry by Dr Asad on 6 December 2010 “back pain, neck pain, nil h/o injury”.[14] On 7 December 2010 the doctor records that there is still pain across the shoulder and upper back.
[14] ARD p 115.
The next relevant entry appears to be on 18 December 2013 where Dr Yousaf records left shoulder blade pain with movements, worse on left arm movements and neck movements. He noted there was no trauma. On his examination he found no abnormality in neck movements. He recommended analgesia and referral to a physiotherapist.[15]
[15] Reply p 123.
In the entry for 10 January 2014 Dr Yousaf refers to the applicant’s job as a community nurse involving lifting of boxes, dressing wounds and does compression dressings for patients, including obese patients. He records that “she says that her pain gets worse on days of work and improved when she is at home, pain has become worse since Nov last year when she had to see physiotherapist… her pain is sharp and radiates from neck to left arm, chest and axillary region and relieved with movements”.[16]
[16] ARD p 151.
On examination the doctor recorded that she had “neck pain on left sided flexion and rotation, spine left paraspinal tenderness at upper thoracic region”. Dr Yousaf referred her for a CT scan.[17] In the next entry the doctor refers to the scan revealing a large disc pressing on the cord at C5/6 and a referral was made to Dr McMaster.
[17] ARD p 152.
On 24 March 2014 Dr Sebastian records that the applicant woke up yesterday put her arm above her head and she had instant pain on the right side. Her neck was still painful and she was having paresthesia in her left arm and her right hand was starting to feel weak. On
25 March 2014 the doctor records that the applicant does not feel well enough to go to work with the ongoing pain so he issued a WorkCover certificate.[18] Mr Hickey submitted that it is noteworthy that the applicant had been continuing to work despite the pain and on
[18] ARD p 154.
25 March 2014 the doctor certified incapacity for work.
Dr McMaster, the treating neurosurgeon, reported to Dr Yousaf on 28 February 2014.[19] She noted that the CT scan showed a large disc prolapse at C6/7 level primarily into the central canal with marked reduction in the diameter of the canal as a result. The doctor opines that the applicant’s symptoms are consistent with a left C7 radiculopathy, most likely related to the C6/7 disc prolapse. The doctor referred the applicant for an MRI scan to see if there was cord compression otherwise, she says the radicular symptoms could be treated by steroid injections. She noted if there is cord compression surgery may be needed.
[19] ARD p 59.
On 19 March 2014 Dr McMaster reviewed the applicant and states that the MRI scan confirms the presence of a large C6/7 disc prolapse primarily centrally causing marked canal compression.[20] The doctor considers that the applicant’s work duties have “almost certainly contributed to her symptoms although there is no one single event that seems to have prompted the disc prolapse. Her other symptoms started at the end of last year and this is most likely time course for this disc prolapse”. Dr McMaster explains that a conservative treatment approach is not suitable for the applicant and she recommends a C6/7 anterior cervical discectomy and fusion. She says with the canal as narrow as it is there is risk of a cord injury should the applicant have further incidents or even something simple like a trip or fall.
[20] ARD p 61.
The surgery was performed on 27 May 2014 at Westmead Hospital.
Dr Maniam provided a medico-legal report for the applicant dated 6 December 2023.[21] He states that the “initial hint of an injury was in 2010; it significantly deteriorated with left upper limb symptoms in 2013.” Dr Maniam sets out the physical requirements of her employment with the respondent, consistent with her statements. The doctor found she was a reliable historian, with no exaggeration or embellishment. He adds that given her work duties it is reasonable that there is a causal nexus. Under the heading “conclusions” Dr Maniam advises that the most common cause of a herniated disc is from excessive bending or lifting or trauma. He says the annular fibrosis tears and the nucleus pulposus is squeezed out.[22]
[21] ARD p 38.
[22] ARD p 48.
Dr Maniam acknowledges that “natural wear and tear starts to occur with age; however, it is less than 2% among young adults and middle aged individuals.” He explains that the applicant complained of neck pain over a period and says this would indicate that there had been an annular tear, which is usually the source of pain and inflammation. He says some basic actions are controlled by the C7 nerve root such as stretching the fingers, contracting the triceps and moving the elbow and wrist.
Under the heading “attributability” Dr Maniam explains why he finds that the applicant had sustained an injury to her cervical spine because of her work duties and he says he agrees with Dr McMaster and finds that the physical aspects of the applicant’s work was the cause of the early annular tear and herniation. Dr Maniam supported the surgery performed by
Dr McMaster because of the severity of the applicant’s symptoms. In a separate report
Dr Maniam assesses permanent impairment at 28% for the cervical spine and scarring combined.
Dr Gothelf provided a medico-legal report for the insurer dated 21 May 2024.[23] In relation to causation the doctor notes her condition was determined not to be related to her employment, presumably he means the insurer determined this. He adds there is no new documentation or history that would alter this decision and gives two reasons to support this conclusion. Firstly, that the applicant stated the cervical spine pain occurred around
[23] Reply p 39.
5 November 2013 from no particular incident and secondly, there are no identified risk factors associated with cervical disc disease and insufficient evidence that neck posture, prolonged work in a sedentary position or repetitive risk factors for neck pain. In support of this conclusion, Dr Gothelf footnotes the AMA Guides to the Evaluation of Disease and Injury Causation: Second Edition. AMA, Chicago, Illinois 2014.
However, these Guides are not those used to assess permanent impairment under the NSW workers compensation legislation. Permanent impairment is assessed using AMA Guides to the Evaluation of Permanent Impairment – 5^th Edition (AMA 5) as modified by SIRA NSW workers compensation guidelines for the evaluation of permanent impairment. Chapter 1.6 of AMA 5 states that the legal standard for causation in workers compensation varies from jurisdiction to jurisdiction. The legal test to be applied is that discussed in Kooragang Cement Pty Ltd v Bates[24] and many other cases in the Commission. I find Dr Gothelf’s reliance on the above-mentioned Guides has led him to apply an incorrect test of causation and undermines his opinion.
[24] (1994) 35 NSWLR 452, (Kooragang).
In answer to question 9 about a disease injury Dr Gothelf baldly states that the applicant’s employment is not the main contributing factor to the contraction or aggravation of the pre-existing condition. The doctor states the applicant would have likely developed the cervical spine condition at this stage in her life regardless of her work duties. I find that Dr Gothelf does not really embark upon any reasoning process and he has not properly considered the effect of the applicant’s employment duties such as putting on compression bandages.
I prefer the opinion of Dr Maniam to that of Dr Gothelf because Dr Maniam has considered in some detail the effect of the applicant’s work on her cervical spine and his opinion does accord with that of Dr McMaster, who I also accept. I find that Dr Maniam has not simply parroted Dr McMaster’s opinion but has provided reasons why he believes the applicant sustained a cervical spine injury in the course of employment with the respondent.
As Mr Hickey read out much of the medical evidence to which I have referred above, I have not recited his submissions verbatim. He submitted that Dr Maniam considered the applicant’s age at 45 or 46 and noting that she is not terribly old at that stage. He says
Dr Maniam’s evidence is significant because he is opining that these problems are not those which normally occur in middle age and that Dr Maniam took into account the style of work that the applicant has been performing since 2009. He submits that even though Dr Maniam uses the test of substantial contributing factor, he is clearly saying that the is acausal connection.
Mr Hickey submitted that the onset of cervical symptoms can be due to work caused disease or due to an aggravation/ exacerbation under s 4(b)(ii) of the 1987 Act. He submits if it is a
s 4(b)(ii) injury then cases such as Federal Broom Co Pty Ltd v Semlitch[25], Cant v Catholic Schools Office[26] and Murray v Shillingsworth[27] mean that all an applicant needs to do is to prove it is the aggravation of the underlying condition that was caused by work. He also referred to the decision in AV v AW [28] by DP Snell as follows:
“[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:

Mr Hickey submitted that the absence of medical evidence about “main contributing factor” is not fatal as the Commission needs to consider the evidence overall and it is not purely a medical question. Mr Hickey concluded his submissions by seeking for the Commission to find that the applicant encountered incapacity on 25 March 2014. Alternatively, he proposes that the last deemed date of injury would be the date of the surgery on 28 May 2014. He noted that the date matters because more recent dates have a high rate of monetary compensation and he urges 28 May 2014 as the deemed date. However, I find the appropriate date is the date of first incapacity 25 March 2014.
The respondent submitted that even if there is some evidence to suggest that work played a part in the exacerbation of the applicant’s condition, it does not establish that employment was the main contributing factor. Mr Loukas submitted that the applicant at [16] of her statement recalls later in 2013 standing in front of her wardrobe at home and when she turned her head heard a clicking sound and she experienced severe neck and upper back pain. He says this incident appears to be significantly more severe than any of the pre-existing issues. He submits that this presentation is consistent with the condition being degenerative or constitutional in origin and it was the catalyst for the surgery. He relies on the physiotherapy note about this incident.
However, the physiotherapy record does not give a date when this entry was made. It seems to be a history taken at an initial consultation but that date is not clear from the records. The physiotherapy record states “3/12 ago turned to read…into wardrobe- resolved (with) Voltaren + Panadol” and “2/52 ago- turn head → triggered pain (more frequent, severity similar)”.[29] However, as the note reveals these incidents resolved within as short time with analgesics so I cannot accept Mr Loukas’s argument that the “wardrobe” incident was the main contributing factor to her cervical condition. Just because a worker experiences pain in her neck at home does not preclude there being a work -related injury. Mr Loukas also refers to the physiotherapist’s entry about pain on 10 October 2013 in a shopping trip. I find that one needs to consider the genesis of the condition and not just the revelation of symptoms. Dr McMaster was aware of the earlier complaints but nonetheless explained why she believed it was the applicant’s work duties that caused injury to the cervical spine.
[29] ARD p 107.
Mr Loukas argues that on the available evidence the Commission cannot be satisfied that the applicant has discharged her onus of proof in relation to “main contributing factor”. He is critical of the applicant not mentioning this incident at home in her recurrence of injury form. He submits there are too many unknowns for a finding to be made in her favour. Mr Loukas also submits that the clinical entries which do exist about problems before 2013/2014 make no reference to complaints of pain being work related.
The respondent also submitted that Dr McMaster was told of the most severe injury being the wardrobe incident, which he repeats is not work related. With reference to her report dated 19 March 2014 the respondent submits that Dr McMaster finds that the applicant’s current symptoms have only been present since the end of 2013 and he ties this in with the wardrobe incident. However, as I have noted the symptoms from that incident settled with analgesia. Mr Loukas submits that the rationale and reasoning behind Dr McMaster’s opinion about causation is very weak. He is also critical of Dr Maniam’s opinion because it is based on Dr McMaster’s opinion. However, I have explained why I prefer the opinions of
Dr McMaster and Dr Maniam to that of Dr Gothelf and so I do not accept the respondent’s submissions.
Mr Loukas drew a parallel with the facts in AV v AW. However, I find the two cases are so very different factually different and just because the applicant failed in AV v AW that does not mean the present applicant cannot succeed. Why the case has relevance is because DP Snell found that the lack of medical evidence about main contributing factor is not fatal to an applicant because the question is not just a medical question. Mr Loukas does acknowledge this principle and submits that if a doctor does not find main contributing factor, then the Commission needs to draw that conclusion from the balance of the evidence and this is lacking in this applicant’s case.
I consider it is significant that if the wardrobe incident occurred three months before the physiotherapist first saw the applicant that would have to be at least in August 2013 as the first available clinical note is 5 November 2013. Mr Loukas tended to describe the wardrobe incident as occurring closer in time to the CT scan revealing the disc herniation. Furthermore, the physiotherapist says this incident settled with analgesia.
The respondent also has not placed weight on the evidence from Dr Yousaf. In the entry for 10 January 2014 Dr Yousaf refers to the applicant’s job as a community nurse involving lifting of boxes, dressing wounds and does compression dressings for patients, including obese patients. He records that “she says that her pain gets worse on days of work and improved when she is at home, pain has become worse since Nov last year when she had to see physiotherapist… her pain is sharp and radiates from neck to left arm, chest and axillary region and relieved with movements.” I consider this to be strong evidence to support a causal connection with her work duties.
If her condition was constitutional, I find her work duties have been the main contributing factor to the aggravation of disease and Dr Gothelf has not adequately considered this scenario. I have explained that I accept the evidence from Dr Yousaf, Dr McMaster and
Dr Maniam, and I find that the applicant has discharged her onus of proof that her work duties are the main contributing factor to the aggravation of cervical disease under s 4(b)(ii) of the 1987 Act. I have indicated also that the deemed date of injury is 25 March 2014.
Therefore, I order that the lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment of the cervical spine and scarring from the deemed date of injury of 25 March 2014.
The documents to be referred to the Medical Assessor are to include those attached to the Application to Resolve a Dispute and the Reply.

[2025] NSWPIC 5

7 January 2025