Nunan v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nunan v State of New South Wales (NSW Police Force) [2025] NSWPIC 244
APPLICANT:	Penny Nunan
RESPONDENT:	State of New South Wales (NSW Police Force)
MEMBER:	Karen Garner
DATE OF DECISION:	3 June 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment lump sum compensation pursuant to section 66 and compensation for pain and suffering pursuant to section 67; applicant was a police officer with the NSW Police Force and accordingly ‘exempt’ from 2012 amendments to the Act; accepted injury to lumbar spine and right knee pursuant to section 4(b)(ii) (as it then applied) as a result of the nature and conditions of the applicant’s work; whether applicant sustained injury to the lumbar spine, right hip and bilateral shoulders pursuant to section 4(b)(ii) (as it then applied); Held – applicant sustained injury to the lumbar spine and right hip pursuant to section 4(b)(ii); applicant did not sustain injury to the bilateral shoulders pursuant to section 4(b)(ii) (as it then applied); matter remitted to the President to be referred to a Medical Assessor for assessment of whole person impairment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained injury to her cervical spine arising out of her employment with the respondent pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act) to which her employment was a substantial contributing factor pursuant to s 9A of the 1987 Act, with a deemed date of injury of 21 June 2024. 2. The applicant sustained injury to her right hip arising out of her employment with the respondent pursuant to s 4(b)(ii) of the 1987 Act to which her employment was a substantial contributing factor pursuant to s 9A of the 1987 Act, with a deemed date of injury of 21 June 2024. 3. The applicant did not sustain injury to her bilateral shoulders arising out of her employment with the respondent pursuant to s 4(b)(ii) of the 1987 Act to which her employment was a substantial contributing factor pursuant to s 9A of the 1987 Act. The Commission orders: 4. The matter is remitted to the President to be referred to a Medical Assessor for an assessment as follows: Date of injury: 21 June 2024 Body parts: lumbar spine, cervical spine, and right lower extremity (hip, knee) Method: whole person impairment. 5. The materials to be referred to the Medical Assessor are to include: (a) the Application to Resolve a Dispute and all attachments; (b) the Reply and all attachments; (c) the applicant’s Application to Lodge Additional Documents and all attachments, and (d) the respondent’s Application to Lodge Additional Documents and all attachments. 6. Following the issue of a Medical Assessment Certificate, the parties have liberty to apply for the matter to be relisted for a further conference before Member Karen Garner to deal with an outstanding issue of the claim for compensation for pain and suffering pursuant to s 67 of the 1987 Act. 7. Any referral to a Medical Assessor should include a notation to the effect that the parties agree that the injury to the lumbar spine has resulted in 5% impairment and the only reason for including the lumbar spine in the present referral is so that the Medical Assessor can correctly apply the rules applicable where there is injury to more than one body part. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Penny Nunan (the applicant) was employed by the State of New South Wales (NSW Police Force) as a police officer from 7 May 2010 to 17 May 2022 and rose to the rank of Senior Constable.
By letter dated 21 June 2024, the applicant made claims pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act), for permanent impairment compensation in the amount of $30,703.75 calculated on the basis of 20% whole person impairment (WPI) (including uplift on 7% WPI for the back) and compensation for pain and suffering in the amount of $25,000, in respect of injury being aggravation, acceleration, exacerbation or deterioration of degenerative disease of her cervical spine, bilateral shoulders, lumbar spine, right hip and right knee.
By notice dated 10 October 2024 issued pursuant to s 78 of the 1987 Act, the respondent’s insurer gave notice that it disputed the applicant’s claims. The insurer accepted that the applicant sustained injury to her lumbar spine and right knee and disputed the applicant sustained injury to her cervical spine, bilateral shoulders and right hip (collectively referred to as the “disputed injuries”).
The applicant and the respondent resolved claims for permanent impairment for some injuries sustained by the applicant during her employment as follows:
(a)    by way of Complying Agreement dated 27 November 2024, injury to her right hand and right wrist arising from an incident on 3 October 2015 on the basis of 1% WPI in the amount of $1,375;
(b)    by way of Complying Agreement dated 27 November 2024, injury to her lumbar spine as a result of the nature and conditions of her employment on the basis of 5% WPI in the amount of $7,218.75 (including uplift of 5% WPI), and
(c)    by way of Complying Agreement dated 19 December 2024, psychological injury on the basis of 22% WPI in the amount of $35,750 plus $23,000 compensation for pain and suffering.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The applicant initiated proceedings in the Personal Injury Commission (Commission) by Application to Resolve a Dispute (ARD) lodged on 6 February 2025.
The respondent lodged a Reply to ARD (Reply) on 28 February 2025.
At a hearing on 7 May 2025, the applicant was represented by Mr Misha Hammond, counsel, instructed by Bourke Legal. The respondent was represented by Mr Phillip Perry, counsel, instructed by Hall & Wilcox Lawyers.
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 parties agree that the following issues remain in dispute:
(a) whether the applicant sustained injury to the cervical spine, bilateral shoulders and right hip, with a deemed date of injury of 21 June 2024, pursuant to ss 4(b)(ii) of the 1987 Act, and
(b) the extent and quantification of the applicant’s entitlement to permanent impairment compensation, pursuant to s 66 of the 1987 Act.

EVIDENCE

Oral evidence

No party applied to adduce oral evidence or cross-examine any witness.

Documentary evidence

The following documents were into evidence by consent and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Lodge Additional Documents (ALAD) and attached documents, lodged by the respondent on 9 April 2025, and
(d)    ALAD and additional documents lodged by the applicant on 24 April 2025.

Applicant’s evidence

The applicant gave evidence by way of a statement dated 28 January 2025.
The applicant stated that she suffered injury to her neck, bilateral shoulders, lower back, right hip and right knee arising out of the heavy and repetitive nature and conditions of her employment as a Police Officer between 7 May 2010 and 17 May 2022.
The applicant stated that, during her employment for 12 years as a General Duties and Proactive Police Officer she:
(a)    engaged in rolling, wrestling, bending, twisting, lifting, holding, falling and high impact events;
(b)    fell into things, onto things, over things and through things, was knocked over, tripped over, and fell over;
(c)    assisted ambulance officers to lift persons out of motor vehicles, and helped carry persons, bodies and objects up and down steep embankments, slopes, stairs, narrow and tight spaces;
(d)    was involved in countless violent arrests, and was forced into awkward and twisting positions, all of which have progressively injured her neck, shoulders, lower back, right hip and right knee;
(e)    attended training programs and defensive tactics training exercises where she was required to play the role of both “attacker” and “victim” in exercises involving tackling, being tackled, dragging, being dragged, leg-sweeping, being leg-swept, head-locking, being headlocked, and so on;
(f)    was often lifted up to climb into windows or was required to crawl into tight spaces;
(g)    hit her knees with full force onto the ground on many occasions, and jarred her knees and feet frequently jumping down from windows, fences etc, and
(h)    was required as a condition of her employment to wear her appointment belt at all times, including whilst travelling in a police vehicle or at a desk, which required her to sit in a twisted position on her left buttock to accommodate her service revolver on her right-hand side, often for two to three hours at a time. The appointment belt itself weighed approximately 9kg, and both the weight and the tightness of the belt caused alterations to her posture and walking gait, and caused ongoing pain in her lower back and right hip.
The applicant stated that she has received treatment for the injuries, which included:
(a)    in 2019 and 2020, she was treated by Mr Damon Clark, osteopath at Freeform Health for symptoms in her right hip, neck and lower back;
(b)    over a period of about six months during 2023, she was treated by Dr Ian Baker, chiropractor at Bathurst Chiropractic Health & Wellness Centre (now Aligned Chiro) on a regular basis for adjustments to her neck, lower back and hips;
(c)    she attended upon Dr Rachel Jack, general practitioner from Macquarie Family Medical Centre in relation to ongoing headaches and migraines arising from her neck injury. In 2020, Dr Jack referred the applicant for a brain MRI but that did not explain her symptoms;
(d)    in August 2024, she underwent steroid injection in her right hip, and
(e)    she otherwise self-manages her injuries with medication, heat packs and magnesium baths.
The applicant stated that she believes that her injuries were caused by a plethora of incidents over the course of her police duties, rather than any one specific event. The applicant stated that her neck, bilateral shoulders, right hip and right knee symptoms came on over time. The applicant stated that she has received regular treatment for her injuries by a chiropractor, osteopath and general practitioner.
The applicant stated that she continues to experiences various symptoms and disabilities, which include pain, stiffness and restriction of movement in her neck, shoulders, lower back and hips.
The applicant stated that she was fit prior to her employment with the respondent and that she did not sustain any injury to her neck, bilateral shoulders, right hip and/or right knee prior to her employment with the respondent, nor other than during her employment with the respondent. The applicant stated that there is no explanation for her neck, bilateral shoulder, right hip and/or right knee symptoms apart from her employment with the respondent.
The applicant stated that she ceased work on 17 May 2022 due to incapacity with a clinical diagnosis of post-traumatic stress disorder.

Incident Forms

Incident Reporting Forms reported injuries sustained by the applicant to her fingers and hand on 17 May 2012, 14 August 2019 and on 7 May 2021.

Treating medical evidence

Macquarie Family Medical Centre

Clinical records of the Macquarie Family Medical Centre recorded:
(a)    on 29 September 2020, the applicant reported chronic headaches with increasing frequency and severity of migraines with visual change, nausea and vomiting over the last 12 months, and an MRI scan – brain was requested;
(b)    on 20 October 2020, the applicant was advised that no abnormality was detected by the MRI scan – brain;
(c)    on 10 January 2023, the applicant reported chronic headaches with numbness of the right scalp and body and an MRI scan – brain was requested;
(d)    on 12 January 2023, the applicant was advised that the MRI – brain scan was reassuring;
(e)    on 26 June 2023, the applicant reported experiencing a migraine with aura;
(f)    on 5 July 2023, the applicant reported increased frequency of migraines, and
(g)    on 1 August 2024, the applicant reported chronic right hip pain on weight bearing for possibly seven years and diagnostic imaging including of the applicant’s hip and pelvis was requested.

Freeform Health Osteopathy

Clinical records of Freeform Osteopathy recorded that on 27 November 2019, the applicant reported having experienced right hip pain and lateral left knee pain on and off for two years and that the applicant “wears belt” as a police officer. Records indicate that the applicant reported headaches, and symptoms in the neck and hips
A record dated 4 December 2019 recorded that the applicant’s right hip was still sore.
I note that the applicant states that she also reported shoulder pain to osteopath but that is not indicated in the clinical records.

Aligned Chiro (previously Bathurst Chiropractic Health & Wellness Centre)

A case summary of Aligned Chiro states a diagnosis of “Chronic marked degenerative progressive cervical spine biomechanical dysfunction secondary to loss of the normal cervical lordosis causing headaches”. It also stated:
“Correction of abnormal spinal alignment as measured objectively on x-ray and /or postural examination. The need for correction was determined by measurement of spinal alignment deviated from the literature-established normal. Abnormal spinal alignment has been demonstrated in research to cause accelerated degeneration, predisposition to pain, neural impingement… Consequently, correction of abnormal spinal alignment is necessary for maintenance of health and prevention of future disease…”.
It noted that the applicant had spondylosis at L5/S1.
Clinical records of Aligned Chiro recorded that the applicant was diagnosed with chronic marked degenerative progression of cervical spine biomechanical dysfunction secondary to loss of the normal cervical lordosis causing headaches and underwent various chiropractic treatments from 6 March 2023 and 2 August 2023. A patient intake and history completed by the applicant indicated that the applicant reported headaches and migraines and also general aches particularly in her right hip area.
A letter dated 26 July 2023 from Dr Ian Baker, chiropractor, reported that the applicant was under the care of the clinic for the last 5 months, having presented with migraines and stress headaches which were occurring as frequently as three times a week, as well as low back ache. Dr Baker stated that examination of the applicant showed loss of range of motion of the neck in extension and bilateral lateral flexion movements and similar restriction of lateral flexion in the low back. Dr Baker stated that X-rays showed a Grade 1 spondylolisthesis at L5/S1 with increase lumbar lordosis and in the neck, degenerative change at C5 and C6 with a reversal of the normal neck curve. Dr Baker stated that those findings correlated with the applicant’s presenting symptoms. Various imaging was included with the letter.

Diagnostic imaging

A diagnostic imaging report of an MRI brain scan on 19 October 2020, reported:
(a) MRI Brain scan showed: no significant intracranial pathology identified to explain the patient’s presentation, noting a reported history of chronic headaches, with increasing frequency and severity of migraines.
A diagnostic imaging report of an X-ray of the right hand (fifth finger) on 10 August 2021, reported:
(a) fracture involving the little finger proximal inter-phalangeal (PIP) joint.
A diagnostic imaging report of an X-ray and ultrasound of the right knee and the right hip on 16 August 2024, reported:
(a) X-ray of the right hip showed: normal hip joint spaces; no evidence of osteoarthritis; unremarkable bony pelvic ring; mild degenerative bony irregularities of the right greater trochanter, normal bony alignment of the knee, no joint effusion or intra-articular loose body, and
(b) ultrasound of the right hip with injection of the trochanteric bursa showed: no hip joint effusion; calcific tendinopathy of the rectus femoris origin; gluteus minimus and medius tendons are intact; tenderness on palpation of the greater trochanter.

Independent medical evidence

Dr James Bodel, orthopaedic surgeon, independent medical expert qualified by the applicant

In a report dated 10 June 2024, Dr Bodel recorded a history of the applicant’s employment with the respondent and her musculoskeletal injuries. Dr Bodel referred to reports of investigations and stated that he had seen chiropractic films showing the neck and back confirming pathology at C4/5 and C5/6 in the cervical spine and a spondylosis at L5/S1 with a Grade I forward slip and degenerative change at the L5/S1 disc space with some narrowing of the disc space with associated pathology in that region.
Dr Bodel reported that, on examination, the applicant: was uncomfortable when sitting and rises slowly; walked with a mild right-sided limp, with no leg length inequality of spinal deformity; had tenderness in the trapezius muscle at the base of the neck on the right side with guarding in that area; had a reduced range of neck flexion, extension and rotation in all directions, most restricted on rotation to the left; had a slight restriction of shoulder movement in each shoulder; had mild impingement in each shoulder but no instability; had tenderness over the rotator cuff; had a restriction of wrist movement on the right; had strong grip strength, present and equal reflexes and no clinical sigh of radiculopathy in either upper limb; had tenderness on palpation at the lumbosacral junction over the top of the right buttock and the area of the greater trochanter on the right-hand side; had backache on reaching forward in flexion and also on extension with a restricted range of lateral bending to the left and asymmetry of back movement; had a very slight restriction of hip movement on the right; had a slight restriction of knee movement on the right; had no reflex abnormality or sign of sensory impairment in the lower limbs.
Dr Bodel expressed the opinion that the nature and conditions of the applicant’s employment with the respondent was a substantial contributing factor to the applicant’s soft tissue injuries noted on examination.
Dr Bodel assessed that the applicant had 20% total WPI, calculated on the basis of 6% WPI of the lumbar spine, 6% WPI of the right lower extremity, 5% WPI of the cervical spine, 2% WPI of the right upper extremity and 2% WPI of the left upper extremity.
In a supplementary report dated 26 March 2025, Dr Bodel confirmed the diagnoses of: degenerative disc disease in the cervical spine, particularly the C5/6 level; rotator cuff pathology in both shoulders, and greater trochanteric bursitis in the region of the right hip. Dr Bodel stated that those pathological diagnoses are constitutionally or genetically based and show a disease process of gradual onset, which is due to her genetic make-up. Dr Bodel stated that the nature and conditions of the applicant’s work as a police officer caused aggravation, acceleration, exacerbation and deterioration to those disease processes in the cervical spine, bilateral shoulders and the greater trochanteric bursitis in the region of the right hip.
Dr Bodel agreed with Dr Bosanquet’s diagnosis that the pathology is the degenerative process in the neck, shoulders and greater trochanteric bursa. Dr Bodel disagreed with Dr Bosanquet’s opinion that there is no relation to the applicant’s work. Dr Bodel reiterated that in his opinion, the nature and conditions of the applicant’s work with the respondent has caused aggravation, acceleration, exacerbation and deterioration of the disease process and that work in general is the main contributing factor to the injury in those areas.

Dr John Bosanquet, orthopaedic surgeon, independent medical expert qualified by the respondent

In a report dated 16 August 2024, Dr Bosanquet recorded a history of the applicant’s employment with the respondent and her musculoskeletal injuries. Dr Bosanquet stated that there were no investigations for him to review.
Dr Bosanquet reported that, on examination, the applicant: had full range of movement in her cervical spine and both shoulders; full range of movement in her right hip, specifically noting flexion greater than 110°, internal rotation 30°, external rotation 40°, abduction 30°; and in her lumbar spine, was tender laterally well above the greater trochanter and lateral to the sacroiliac region.
Dr Bosanquet diagnosed: right hip pain in the right buttock and sacroiliac region, which he considered was emanating from the applicant’s lumbar spine; bilateral knee pain with laterally tracking patella; and right wrist tendonitis. Dr Bosanquet expressed the opinion that the applicant’s employment was a substantial contributing factor to that injury. Dr Bosanquet assessed total 5% WPI, attributable solely to the applicant’s lumbar spine.
Dr Bosanquet did not diagnose any injuries to the applicant’s cervical spine, bilateral shoulders and right hip, stating that: “During the time I interviewed and examined Penny Nunan she gave no symptoms referable to her cervical spine, to both shoulders and the injury was to her right hip and right knee arising out of her employment.” Dr Bosanquet stated that the applicant had full range of movement and no impairment in her cervical spine, bilateral shoulders and right hip.
In a report dated 19 September 2024, Dr Bosanquet stated that:
“The term ‘hip’ has been used in a generic way. In my report on page 5, I state, under the heading Right Hip, ‘There is pain in her right buttock and sacroiliac region emanating no doubt from her lumbar spine’. Thus, it is my opinion there has been no specific injury to the right hip, rather to the region around the hip and buttock which are emanating from her lumbar spine.
It is my opinion that her employment is a substantial contributing factor to the injury. There has been no contraction or aggravation of a disease of gradual onset in her employment. However, in the absence of any radiological investigations, I am unable to comment as to whether there were any pre-existing conditions that have been aggravated.”
Later in the report, Dr Bosanquet stated:
“It is my opinion that Penny Nunan’s employment with NSW Police is the main contributing factor to the injury to her ‘right hip’.”
Dr Bosanquet later stated that:
“As stated above it is my opinion that the ‘right hip’ is in fact pain emanating from her lumbar spine. Thus, her employment with the NSW Police has been a substantial contributing factor to the injury.”
Dr Bosanquet confirmed that he assessed 5% WPI of the lumbar spine and confirmed that the applicant had no impairment of her right hip.
In a further report dated 26 March 2025, Dr Bosanquet referred to x-rays of the applicant’s cervical spine and stated that they showed age related degenerative changes at C5/6 and C6/7. Dr Bosanquet stated that the applicant has age related degenerative changes in her cervical spine that have developed completely independently of her employment with the respondent. Dr Bosanquet stated that the applicant gave no history of pain or symptoms relating to her cervical spine when he interviewed and examined her. On that basis, Dr Bosanquet expressed the opinion that the applicant’s employment is not the main contributing factor to any aggravation, acceleration, exacerbation or deterioration of a disease affecting her cervical spine.
In relation to the applicant’s right hip, Dr Bosanquet referred to an X-ray and ultrasound of the right hip on 18 August 2024 and expressed the opinion that there is no preexisting degenerative changes in the right hip that have been aggravated, accelerated, exacerbated or deteriorated by the applicant’s employment. Dr Bosanquet reiterated his opinion that:
“…any pain in her ‘right hip’ is emanating from her lumbar spine. I did not find any tenderness over her greater trochanter, and she had a full range of movement in her right hip. Thus, it is my opinion that [the applicant’s] employment with [the respondent] is not the main contributing factor to the aggravation, acceleration or deterioration of a disease affecting the right hip.”

SUBMISSIONS

Counsel made oral submissions and also joint written submissions in relation to the applicable law.
On behalf of the applicant, Mr Hammond:
(a) confirmed that the applicant claims injury to the cervical spine, bilateral shoulders and right hip, only pursuant to s 4(b)(ii) of the 1987 Act, with a deemed date of injury of 21 June 2024. Mr Hammond submitted that the only issue that is required to be determined in relation to liability is whether the applicant sustained any aggravation, acceleration, exacerbation or deterioration of disease of the relevant body parts and it is not necessary nor appropriate that I make any finding as to the degree of such aggravation, acceleration, exacerbation or deterioration of disease;
(b)    submitted that the applicant’s evidence as to the nature and conditions of her work should be accepted and supports a finding that it had the capacity to cause aggravation, acceleration, exacerbation or deterioration of disease of the relevant body parts;
(c)    referred to various medical evidence and submitted that should prefer and accept Dr Bodel’s opinion rather that the opinion of Dr Bosanquet. Mr Hammond submitted that Dr Bosanquet’s comment that the applicant gave no symptoms regarding her cervical spine and shoulders does not necessarily discount a finding of injury in respect of the cervical spine and shoulders because there is no evidence of the instructions that were provided to Dr Bosanquet and there is no evidence that Dr Bosanquet conducted a thorough examination of those body parts. Mr Hammond submitted that the applicant had treatment of her cervical spine which is inconsistent with Dr Bosanquet’s finding that there was no injury of the cervical spine;
(d)    submitted that pursuant to s 16(2) of the 1987 Act, the date of injury for all the injuries should be a deemed date of injury of 21 June 2024, which is accepted as the date the applicant’s claim for compensation was made. Mr Hammond submitted that the applicant ceased work on 17 May 2022 due to incapacity caused by a psychological condition, which was unrelated to any physical injury and noted that he did not make any positive submission that the applicant had an incapacity as a result of the disputed injuries when she ceased work on 17 May 2022, and
(e)    submitted that, if the applicant is successful, the applicant seeks an order that the respondent pay its costs in relation to the proceedings.
On behalf of the respondent, Mr Perry:
(a)    submitted that the applicant has not identified and that the medical evidence falls far short of establishing disease of the relevant body parts, and that the nature and conditions of the applicant’s employment was the necessary contributing factor to aggravation, acceleration, exacerbation or deterioration of disease of the relevant body parts;
(b) in relation to the applicant’s cervical spine, referred to a lack of any referral letter from a general practitioner, submitted that a chiropractor is not a general practitioner, and submitted that the report of the chiropractor falls far short of a report of treatment for injury. Mr Perry submitted that the chiropractor’s report of an abnormal spinal alignment requiring correction is not sufficient to demonstrate any disease nor that the nature and conditions of the applicant’s employment was the required contributing factor to aggravation, acceleration, exacerbation or deterioration of disease. Mr Perry submitted that the applicant’s evidence of abnormality in her cervical spine fully explains her spinal condition without reference to any work contribution whatsoever and does not establish injury pursuant to s 4(b)(ii) of the 1987 Act;
(c)    in relation to the applicant’s bilateral shoulders, submitted that there is insufficient evidence to conclude that the applicant had a pre-existing shoulder condition which was aggravated, accelerated, exacerbated or deteriorated by the applicant’s employment. Mr Perry noted that that Dr Bodel’s original report does not include any record of reported shoulder symptoms. Mr Perry submitted that neither Dr Bodel nor Dr Bosanquet received any account of aggravation, acceleration, exacerbation or deterioration of disease of the bilateral shoulders and Dr Bodel gave no basis at all for his finding that the applicant sustained 4% WPI of the left shoulder and 4% WPI of the right shoulder;
(d)    in relation to the applicant’s hip, submitted that the applicant has not established that she sustained a distinct injury to the hip as opposed to referred pain from the lumbar spine which was identified by Dr Bosanquet. Mr Perry submitted that Dr Bosanquet provided a satisfactory explanation for the applicant’s hip pain that was explicable in terms of the applicant’s accepted back injury, and
(e)    submitted that there is no evidence at all that the condition of the relevant body parts caused an incapacity for the purposes of ss 15 and 16 of the 1987 Act. Having regard to the provisions of s 16(2) of the 1987 Act and the decision of Hadad v The GEO Group Australia Pty Ltd (Hadad),[1] in order to find a deemed date of injury of 21 June 2024, the Commission needs to firstly make a finding that the applicant did not suffer an incapacity as a result of the accepted injuries, noting that the applicant’s last day of work was 17 May 2022, at which time the applicant ceased work due to incapacity as a result of psychological injury, and for reasons other than the agreed injuries.
[1] [2024] NSWCA 135 (Haddad).
On behalf of the applicant, in reply, Mr Hammond:
(a) submitted that Dr Bodel’s second report establishes that the applicant suffered degeneration at C5/ C6 levels of the cervical spine, rotator cuff pathology in both shoulders and trochanteric bursitis of the right hip;
(b) submitted that Dr Bodel’s reports should be read as a whole, together with the applicant’s statement in relation to the applicant’s bilateral shoulders.
Counsel agreed that:
(a) because the applicant is a former NSW Police Officer, she is considered an “exempt worker” and the law applicable to the applicant is ss 4(b)(ii) and 9A of the 1987 Act immediately prior to the 2012 amendments, and on that basis, the test to be applied is whether the applicant’s employment was the substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of disease;
(b)    it is appropriate that, in any event, I make orders remitting the matter to the President to be referred to a Medical Assessor for determination of WPI in respect of accepted injuries to the applicant’s lumbar spine and right knee, in addition to any of the disputed injuries which I may find to have been sustained by the applicant;
(c)    the date of injury for the injuries to be referred to the Medical Assessor is to be a deemed date of injury of 21 June 2024, noting that is the date that the claim for compensation was made and there is no death nor incapacity in respect of the disputed injuries;
(d)    it is appropriate that any order for referral to a Medical Assessor should include a notation to the effect that:
“The parties agree that the injury to the lumbar spine has resulted in 5% impairment and the only reason for including the lumbar spine in the present referral is so that the Medical Assessor can correctly apply the rules applicable where there is injury to more than one body part.”, and
(e)    it is appropriate that I should make an order which states to the effect that:
“Following the issue of a Medical Assessment Certificate, the parties have liberty to apply for the matter to be relisted for a further conference before Member Karen Garner to deal with an outstanding issue of the claim for compensation for pain and suffering pursuant to s 67 of the 1987 Act.”

THE LAW

The applicant is a former NSW Police Officer.
Clause 25 of Part 19H of Schedule 6 (Savings, transitional and other provisions) of the 1987 Act provides:
“25 Police officers, paramedics and firefighters
The amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a police officer, paramedic or firefighter (before or after the commencement of this clause), and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted.”
On that basis, the relevant law applicable to the applicant as a former NSW Police Officer is the 1987 Act immediately prior to the 2012 amendments were made.
Immediately prior to the 2012 amendments, s 4 of the 1987 Act relevantly stated:
“In this Act: ‘injury’:
(a)     means personal injury arising out of or in the course of employment,
(b)     Includes a disease injury, which means—
(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration…
(c)     ...”
Immediately prior to the 2012 amendments, s 9A(1) of the 1987 Act stated:
“No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.”
On that basis, the test that I am required to apply to determine whether the applicant, as a former NSW police officer, sustained injury pursuant to ss 4(b)(ii) and 9A of the 1987 Act as it applied immediately prior to the 2012 amendments, is whether the applicant sustained aggravation, acceleration, exacerbation or deterioration of any disease, and the applicant’s employment was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of that disease.
The expression, “aggravation, acceleration, exacerbation or deterioration” of a disease for the purposes of s 4(b)(ii) of the 1987 Act was discussed by Windeyer J in Federal Broom Co Pty Ltd v Semlitch[2] (Semlitch):
“The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man's sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated.”[3]
[2] [1964] HCA 34; 110 CLR 626.
[3] Semlitch, at [640].
Justice Kitto in the same case found:
“Moffitt J. was right, I think, in saying: ‘There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism’. Accordingly if salt be applied to an open wound, making the would no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound.”[4]
[4] Semlitch, at [635].
A commonsense evaluation of the causal chain is required. The legal test of causation was set out by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[5] (Kooragang), where Kirby J stated:
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”[6]
[5] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[6] Kooragang, at [461] (Sheller and Powell JJA agreeing).
His Honour stated at [463]-[464]:
“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 not now 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. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
Although the High Court in Comcare v Martin[7] raised some concerns about the common sense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the common sense approach still has place in the application of the legislation to the present case.
[7] [2016] HCA 43, [42].
Principles regarding the discharge of the onus of proof were considered by President Keating in Department of Education & Training v Ireland[8] (Ireland). In order for the applicant to discharge the onus that he sustained the alleged injury, I “must feel an actual persuasion of the existence of that fact”.
[8] [2008] NSWWCCPD 134, at [89], applying Nguyen v Cosmopolitan Homes [2008] NSWCA 246, per McDougall (McColl and Bell JJA agreeing) at [44]-[48].
Subsection 16(1) of the 1987 Act states that:
“(1)    If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease—
(a)     the injury shall, for the purposes of this Act, be deemed to have happened—
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b)     compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
In relation to the relevant date of injury, in Hadad,[9] Griffiths AJA said:[10]
[9] [2024] NSWCA 135 (Haddad).
[10] Haddad, [69]-[74], [80], [81], [105].
“69. Both Acts also recognise that some, but not all, work-related injuries may result in a worker being incapacitated for work. This applies to both frank injuries and disease injuries. In the case of injuries of the latter kind, s 15(1) provides two alternative limbs which operate to deem a point in time when this kind of injury is taken to have happened. Putting to one side the circumstance where the disease results in death, the determination of which limb in s 15(1) applies turns on whether or not the worker has an incapacity. That is a question of fact, to be determined by the relevant evidence.
70.    Nothing in the text of s 15(1) or, indeed, elsewhere in either Act, suggests that the deeming provision operates simply by reference to how the worker’s claim for compensation is formulated. The fact that it is a claim for compensation is a critical aspect of the second limb of the deeming provision in s 15(1)(a)(ii) because it constitutes the deemed date of injury where that limb applies. But the text of s 15(1) does not make the content of that claim determinative in selecting which of the two limbs applies.
71.    The text of s 15 should be read and understood with an appreciation of its raison d’être. It is necessary to have a provision which deems the date of injury where the injury is one of gradual process because of the intrinsic difficulties which would otherwise arise in identifying a finite and single point in time when such an injury happened given that the disease may not be static. Those difficulties are unlikely to arise when a worker suffers either a one-off frank injury or death. The timing of those events will ordinarily be readily ascertained.
72. In applying s 15 it may be accepted that there are multiple scenarios which reveal whether or not a particular worker may have an incapacity as defined in s 4(1) of the 1998 Act (see at [39] above and as applied and understood in the cases referred to below, particularly Thoroughgood) and may be entitled to make a claim for compensation arising from that incapacity. One scenario is where the worker makes a claim for compensation which in its terms asserts or depends upon incapacity, as was the case here with the appellant’s initial claim dated 19 January 2021, when he sought weekly payments of compensation on the basis of an incapacity which he claimed dated from 20 January 2017. Another possible scenario is where incapacity for work may be apparent from objective facts which are independent of any formal claim or entitlement to claim compensation, such as the worker’s unauthorised absence from work. In the circumstances here, merely because the claim was then reformulated so as to seek a benefit which does not depend upon incapacity does not mean that the previous evidence indicating that there may have been incapacity can be ignored.
73.    Another scenario, which is also reflected in the present case, is where the worker has made a claim for compensation under different legislation and it emerges either from that claim or in related proceedings that there is or was an incapacity.
74.    These scenarios are not exhaustive.
…
80.    As explained in Thoroughgood, the correct position is that where a disease injury causes an incapacity (in the sense of a reduction in earning capacity) and at the same time gives rise to an entitlement to compensation under the 1987 Act (whether for permanent impairment or treatment expenses or otherwise), s 15(1)(a)(i) operates to deem the date of injury relevant to any such claim to be the time when the worker suffered incapacity. This does not turn on the framing of the claim by the claimant but rather on the entitlement to claim, as illustrated most clearly in Thoroughgood, as to which see especially at [124] below. It means that since, in this case, on 20 January 2017, the appellant suffered a disease injury that caused both an incapacity giving rise to an entitlement to claim weekly compensation and also, at the same time, an entitlement to claim treatment expenses, that was the deemed date of injury relevant to both claims. That is not altered by the fact that he ultimately abandoned the claim for weekly compensation.
81.    It is only where neither aspect of s 15(1)(a)(i) operates that s 15(1)(a)(ii) is engaged. That would be so, for instance, where a disease causes a need for treatment without any reduction in earning capacity. And it would also be so where a disease first causes an incapacity and then, some time later, causes a permanent impairment but no further incapacity. That explains the outcomes in a number of the cases discussed below.
…
105. … It is only if an entitlement to compensation is unrelated to any incapacity, as was the case in Alto Ford, that the deemed date of injury is the date of the claim.”

In Razmovski v NIB Health Funds Ltd [2025] NSWPICPD 9, Deputy President Snell discussed and applied Haddad and Thoroughgood in the context of that case.
It is clear from s 15(1) of the 1987 Act and the relevant authorities, that I am required to determine the date of injury of the injuries, by determining whether they resulted in an incapacity and, if so, when that incapacity occurred. I am required to have regard to the particular facts, which includes the development of injury in the nature of aggravation, acceleration, exacerbation or deterioration of a disease pursuant to s 4(b)(ii) of the 1987 Act.

CONSIDERATION

Did the applicant sustain injury to the cervical spine, bilateral shoulders and right hip, with a deemed date of injury of 21 June 2024, pursuant to ss 4(b)(ii) of the 1987 Act

As noted above, as a former NSW police officer, the applicant is considered an “exempt worker” and the relevant law applicable to the applicant is ss 4(b)(ii) and 9A(1) of the 1987 Act immediately prior to the 2012 amendments. On that basis, the test I am required to apply in determining whether the applicant sustained an injury pursuant to ss 4(b)(ii) and is entitled to workers compensation pursuant to s 9A(1), is whether the applicant sustained aggravation, acceleration, exacerbation or deterioration of any disease, and further, the applicant’s employment was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of that disease.
The critical issue is whether the applicant had pre-existing disease conditions of her cervical spine, bilateral shoulders and right hip and whether her employment was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of that disease.

Nature and conditions of the applicant’s employment

The applicant’s credit is not in dispute. The applicant described the physically demanding and forceful nature of her work as a police officer over a period of approximately 12 years, including being involved in violent arrests and training exercises and a requirement to wear an appointment belt. The applicant’s evidence as to the nature and conditions of her employment is consistent with reports of the treating practitioners and the independent medical experts.
Considering the evidence as a whole, I accept that the nature and conditions of the applicant’s employment was such that she was regularly subjected to physically demanding and forceful activities and she was required to wear an appointments belt on an ongoing basis.

Cervical spine

The applicant’s evidence is that her neck symptoms developed over a period of time.
The applicant’s evidence in that regard is consistent with treating medical evidence, in particular:
(a)    clinical records of the Macquarie Family Medical Centre recorded that in September 2020 the applicant reported chronic headaches increasing in frequency and duration over the previous 12 months and in January, June and July 2023 the applicant reported chronic headaches and migraines, however MRI scans of the brain including on 10 August 2021 showed no pathology which explained the applicant’s symptoms;
(b)    the letter dated 26 July 2023 from Dr Ian Baker, chiropractor, reported that the applicant was under the care of the clinic for the last five months, having presented with migraines and stress headaches which were occurring as frequently as three times a week. Dr Baker stated that examination of the applicant showed loss of range of motion of the neck in extension. Dr Baker stated that X-rays showed degenerative change at C5 and C6 with a reversal of the normal neck curve. Dr Baker stated that those findings correlated with the applicant’s presenting symptoms. Various imaging was included with the letter, and
(c)    clinical records of Aligned Chiro recorded that the applicant was diagnosed with chronic marked degenerative progression of cervical spine biomechanical dysfunction secondary to loss of the normal cervical lordosis causing headaches and underwent various chiropractic treatments from 6 March 2023 and 2 August 2023.
In a report dated 10 June 2024, Dr Bodel recorded a history of the applicant’s employment with the respondent and her musculoskeletal injuries and referred to reports of investigations and stated that he had seen chiropractic films showing the neck and back confirming pathology at C4/5 and C5/6 in the cervical spine. Dr Bodel reported that, on examination, the applicant had tenderness in the trapezius muscle at the base of the neck on the right side with guarding in that area, and had a reduced range of neck flexion, extension and rotation in all directions, most restricted on rotation to the left. Dr Bodel diagnosed soft tissue injuries caused by the nature and conditions of the applicant’s employment with the respondent. Dr Bodel noted that the applicant had asymmetry of movement and guarding but no clinical sign of radiculopathy and assessed 5% impairment of the cervical spine.
In a supplementary report dated 26 March 2025, Dr Bodel stated a diagnosis of degenerative disc disease in the cervical spine, particularly the C5/6 level, which is a constitutionally or genetically based disease process of gradual onset. Dr Bodel stated that the nature and conditions of the applicant’s work as a police officer caused aggravation, acceleration, exacerbation and deterioration to those disease process in the cervical spine.
In a report dated 16 August 2024, Dr Bosanquet recorded a history of the applicant’s employment with the respondent and her musculoskeletal injuries. Dr Bosanquet stated that there were no investigations for him to review. Dr Bosanquet reported that, on examination, the applicant had full range of movement in her cervical spine. Dr Bosanquet did not diagnose any injuries to the applicant’s cervical spine, noting that at the time of examination, the applicant gave no symptoms referable to her cervical spine, and had full range of movement and no impairment in her cervical spine.
In a further report dated 26 March 2025, Dr Bosanquet referred to X-rays of the applicant’s cervical spine and stated that they showed age related degenerative changes at C5/6 and C6/7. Dr Bosanquet stated that the applicant has age related degenerative changes in her cervical spine that have developed completely independently of her employment with the respondent. Dr Bosanquet stated that the applicant gave no history of pain or symptoms relating to her cervical spine when he interviewed and examined her. On that basis, Dr Bosanquet expressed the opinion that the applicant’s employment is not the main contributing factor to any aggravation, acceleration, exacerbation or deterioration of a disease affecting her cervical spine.
Dr Bodel and Dr Bosanquet both ultimately accepted that the applicant has a constitutionally or genetically based disease process of gradual onset of the cervical spine being degenerative disc disease in the cervical spine, particularly the C5/6 level. That is consistent with the imaging and the opinion of Dr Baker, chiropractor.
On the basis of that evidence, I accept that the applicant has a degenerative disc disease in the cervical spine.
Although Dr Bosanquet stated that the applicant gave no history of pain or symptoms relating to her cervical spine when he interviewed or examined her, the applicant’s evidence that she experienced ongoing neck pain and restrictions which developed over time is supported by evidence by the treating practitioners that the applicant complained of headaches which was not explained by other pathology and loss of range of motion in the neck. Dr Bodel also found on examination, that the applicant had tenderness in the trapezius muscle at the base of the neck on the right side with guarding in that area, and had a reduced range of neck flexion, extension and rotation in all directions, most restricted on rotation to the left.
I prefer and accept the opinion of Dr Bodel in relation to the applicant’s neck symptoms and restrictions because I consider that is supported by the weight of evidence as a whole. There is ample evidence that the applicant complained of significant headaches and migraines over a period of time. Dr Baker explained that the applicant’s headaches and migraines related to the applicant’s cervical spine condition.
On that basis, I accept that the applicant experienced neck symptoms and restrictions including headaches and migraines, tenderness in the trapezius muscle at the base of the neck on the right side with guarding in that area, and had a reduced range of neck flexion, extension and rotation in all directions, most restricted on rotation to the left.
I note that Dr Bodel initially diagnosed soft tissue injuries caused by the nature and conditions of the applicant’s employment with the respondent, however he later stated a diagnosis of degenerative disc disease in the cervical spine, particularly the C5/6 level, which is a constitutionally or genetically based disease process of gradual onset, which had been aggravated, accelerated, exacerbated and deteriorated because of the nature and conditions of the applicant’s work as a police officer.
Dr Baker explained that the degenerative change at C5 and C6 shown on the imaging correlated with the applicant’s presenting symptoms and that the applicant’s headaches were secondary to loss of the normal cervical lordosis caused by degenerative progression of cervical spine biomechanical dysfunction.
I note that imaging was unable to confirm any other pathology which explained the applicant’s headache symptoms and there is no evidence of any other injurious event relevant to the applicant’s neck.
Considering the evidence as a whole and my various findings above, and adopting a common sense approach to the causal chain, I consider that Dr Bodel’s opinion provides a logical and likely explanation for the applicant’s neck symptoms and restrictions.
On that basis, I find that the applicant had a pre-existing disease condition of her cervical spine, being a degenerative disc disease in the cervical spine, and that the applicant developed symptoms and sustained injury to her cervical spine in the nature of an aggravation, acceleration, exacerbation and deterioration of that disease process, to which the applicant’s employment was the substantial contributing factor pursuant to s 4(b)(ii) of the 1987 Act.
There is no evidence that death nor incapacity resulted from the injury and on that basis I find that no death nor incapacity resulted from the injury.
In accordance with ss 16(1) of the 1987 Act, I find that the date of the injury is to be a deemed date of injury of 21 June 2024, noting that is the date that the claim for compensation was made and there is no death nor incapacity that resulted from the injury.

Bilateral shoulders

The applicant’s evidence is that her bilateral shoulder symptoms developed over a period of time.
In a report dated 10 June 2024, Dr Bodel recorded a history of the applicant’s employment with the respondent and her musculoskeletal injuries and referred to reports of investigations. Dr Bodel reported that, on examination, the applicant had a slight restriction of shoulder movement in each shoulder, mild impingement in each shoulder but no instability, tenderness over the rotator cuff, a restriction of wrist movement on the right, strong grip strength, present and equal reflexes and no clinical sigh of radiculopathy in either upper limb. Dr Bodel diagnosed soft tissue injuries caused by the nature and conditions of the applicant’s employment with the respondent. Dr Bodel assessed 4% upper extremity impairment for each shoulder, which became a 2% WPI for the injury to the shoulders and a 4% WPI overall for both upper extremities (shoulders).
In a supplementary report dated 26 March 2025, Dr Bodel confirmed the diagnosis of rotator cuff pathology in both shoulders, which is a constitutionally or genetically based disease process of gradual onset. Dr Bodel stated that the nature and conditions of the applicant’s work as a police officer caused aggravation, acceleration, exacerbation and deterioration to the disease process in the applicant’s bilateral shoulders.
In a report dated 16 August 2024, Dr Bosanquet recorded a history of the applicant’s employment with the respondent and her musculoskeletal injuries. Dr Bosanquet stated that there were no investigations for him to review. Dr Bosanquet reported that, on examination, the applicant had full range of movement in shoulders. Dr Bosanquet did not diagnose any injuries to the applicant’s bilateral shoulders, noting that at the time of examination, the applicant gave no symptoms referable to her bilateral shoulders and the applicant had full range of movement and no impairment in her bilateral shoulders.
Considering the evidence as a whole, I am not satisfied on the balance of probabilities that the applicant had a pre-existing disease of the bilateral shoulders because I do not consider that it is supported by the weight of evidence. I note that the applicant underwent various treatment by her treating practitioners for other symptoms however there is no contemporaneous treating medical evidence which supports the applicant’s evidence that she developed shoulder symptoms over a period of time and further there is no treating medical evidence of a diagnosis in that regard. That is consistent with the opinion of Dr Bosanquet. Further, for the same reason, I am not satisfied that the applicant’s work as a police officer caused aggravation, acceleration, exacerbation and deterioration to the disease process in the applicant’s bilateral shoulders.
On that basis, I do not find that the applicant had a pre-existing disease condition of her bilateral shoulders and that her employment was a substantial contributing factor to the aggravation, acceleration, exacerbation and deterioration of that disease.

Right hip

The applicant’s evidence is that her right hip symptoms developed over a period of time.
The applicant’s evidence in that regard is consistent with treating medical evidence, particularly:
(a)    clinical records of Freeform Osteopathy recorded that on 27 November 2019, the applicant reported having experienced right hip pain and lateral left knee pain on and off for two years;
(b)    clinical records of the Macquarie Family Medical Centre recorded that in August 2024 the applicant reported chronic right hip pain on weight bearing for possibly seven years;
(c)    the letter dated 26 July 2023 from Dr Ian Baker, chiropractor, reported that the applicant was under the care of the clinic for the last five months, having presented with low back ache. Dr Baker stated that examination of the applicant showed restriction of lateral flexion in the low back. Dr Baker stated that X-rays showed a Grade 1 spondylolisthesis at L5/S1 with increase lumbar lordosis. Dr Baker stated that those findings correlated with the applicant’s presenting symptoms. Various imaging was included with the letter;
(d)    X-ray of the right hip on 16 August 2024 which was reported to show: normal hip joint spaces; no evidence of osteoarthritis; unremarkable bony pelvic ring; mild degenerative bony irregularities of the right greater trochanter, normal bony alignment of the knee, no joint effusion or intra-articular loose body, and
(e)    ultrasound of the right hip with injection of the trochanteric bursa on 16 August 2024 which was reported to show: no hip joint effusion; calcific tendinopathy of the rectus femoris origin; gluteus minimus and medius tendons are intact; and tenderness on palpation of the greater trochanter.
In a report dated 10 June 2024, Dr Bodel recorded a history of the applicant’s employment with the respondent and her musculoskeletal injuries and referred to reports of investigations and stated that he had seen chiropractic films showing a spondylosis at L5/S1 with a Grade I forward slip and degenerative change at the L5/S1 disc space with some narrowing of the disc space with associated pathology in that region. Dr Bodel reported that, on examination, the applicant: was uncomfortable when sitting and rises slowly; walked with a mild right-sided limp, with no leg length inequality of spinal deformity; had tenderness on palpation at the lumbosacral junction over the top of the right buttock and the area of the greater trochanter on the right-hand side; had backache on reaching forward in flexion and also on extension with a restricted range of lateral bending to the left and asymmetry of back movement; had a very slight restriction of hip movement on the right; had a slight restriction of knee movement on the right; and had no reflex abnormality or sign of sensory impairment in the lower limbs . Dr Bodel diagnosed soft tissue injuries caused by the nature and conditions of the applicant’s employment with the respondent. Dr Bodel assessed 5% impairment because of the restricted range of hip movement that he recorded on examination.
In a supplementary report dated 26 March 2025, Dr Bodel confirmed the diagnosis of greater trochanteric bursitis in the region of the right hip, which is a constitutionally or genetically based disease process of gradual onset. Dr Bodel stated that the nature and conditions of the applicant’s work as a police officer caused aggravation, acceleration, exacerbation and deterioration to the disease process in the region of the applicant’s right hip.
In a report dated 16 August 2024, Dr Bosanquet recorded a history of the applicant’s employment with the respondent and her musculoskeletal injuries. Dr Bosanquet stated that there were no investigations for him to review. Dr Bosanquet reported that, on examination, the applicant had full range of movement in her right hip, specifically noting flexion greater than 110°, internal rotation 30°, external rotation 40°, abduction 30°. Dr Bosanquet diagnosed right hip pain in the right buttock and sacroiliac region, which he considered was emanating from the applicant’s lumbar spine. Dr Bosanquet expressed the opinion that the applicant’s employment was a substantial contributing factor to that injury to injury of her lumbar spine. Dr Bosanquet assessed total 5% WPI, attributable solely to the applicant’s right hip, stating that at the time of examination, the applicant gave no symptoms referable to her right hip arising out of her employment. Dr Bosanquet stated that the applicant had full range of movement and no impairment in her right hip.
In a report dated 19 September 2024, Dr Bosanquet stated that:
“The term ‘hip’ has been used in a generic way. In my report on page 5, I state, under the heading Right Hip, ‘There is pain in her right buttock and sacroiliac region emanating no doubt from her lumbar spine’. Thus, it is my opinion there has been no specific injury to the right hip, rather to the region around the hip and buttock which are emanating from her lumbar spine.
It is my opinion that her employment is a substantial contributing factor to the injury. There has been no contraction or aggravation of a disease of gradual onset in her employment. However, in the absence of any radiological investigations, I am unable to comment as to whether there were any pre-existing conditions that have been aggravated.”
Later in the report, Dr Bosanquet stated “It is my opinion that Penny Nunan’s employment with NSW Police is the main contributing factor to the injury to her ‘right hip’”. Dr Bosanquet later stated that “… it is my opinion that the ‘right hip’ is in fact pain emanating from her lumbar spine. Thus, her employment with the NSW Police has been a substantial contributing factor to the injury.” Dr Bosanquet confirmed that he assessed 5% WPI of the lumbar spine and confirmed that the applicant had no impairment of her right hip.
In a further report dated 26 March 2025, Dr Bosanquet referred to an X-ray and ultrasound of the right hip on 18 August 2024 and expressed the opinion that there is no pre-existing degenerative changes in the right hip that have been aggravated, accelerated, exacerbated or deteriorated by the applicant’s employment. Dr Bosanquet reiterated his opinion that:
“…any pain in [the applicant’s] ‘right hip’ is emanating from her lumbar spine. I did not find any tenderness over her greater trochanter, and she had a full range of movement in her right hip. Thus, it is my opinion that [the applicant’s] employment with [the respondent] is not the main contributing factor to the aggravation, acceleration or deterioration of a disease affecting the right hip.”

Both Dr Bodel and Dr Bosanquet accepted that the applicant had right hip pain, which is consistent with the applicant’s evidence and the treating evidence that the applicant reported ongoing right hip pain over a period of time.
Dr Bosanquet stated that he did not find any tenderness over the applicant’s greater trochanter. However, that is inconsistent with the report of ultrasound of the right hip with injection of the trochanteric bursa on 16 August 2024 which was reported to show tenderness on palpation of the greater trochanter.
Dr Bodel found on examination that the applicant had a very slight restriction of hip movement of the right however Dr Bosanquet found that the applicant had a full range of movement of the right hip.
Dr Bodel confirmed the diagnosis of greater trochanteric bursitis in the region of the right hip, which is a constitutionally or genetically based disease process of gradual onset. Dr Bodel stated that the nature and conditions of the applicant’s work as a police officer caused aggravation, acceleration, exacerbation and deterioration to the disease process in the region of the applicant’s right hip
However, Dr Bosanquet’s opinion that the applicant had no preexisting degenerative changes in the right hip that have been aggravated, accelerated, exacerbated or deteriorated by the applicant’s employment. Dr Bosanquet opined that the applicant’s “right hip pain” was emanating from accepted lumbar spine condition.
I note that imaging was unable to confirm any other pathology which explained the applicant’s right hip symptoms and there is no evidence of any other injurious event relevant to the applicant’s right hip.
The medical evidence in relation to the applicant’s right hip is somewhat challenging. On balance, I accept and prefer the opinion of Dr Bodel because I consider that it provides a logical and likely explanation for the applicant’s right hip pain and, particularly tenderness over the region of the greater trochanter which were identified both by Dr Bodel and in the process of imaging.
Considering the evidence as a whole and my various findings above, and adopting a common sense approach to the causal chain, I consider that Dr Bodel’s opinion provides a logical and likely explanation for the applicant’s right hip pain, particularly in the area of the greater trochanter and restrictions which were identified by Dr Bodel.
On that basis, I accept that the applicant had a pre-existing disease condition of her right hip, being greater trochanteric bursitis, and that the applicant developed symptoms and sustained injury to her right hip in the nature of an aggravation, acceleration, exacerbation and deterioration of that disease process, to which the applicant’s employment was the substantial contributing factor pursuant to s 4(b)(ii) of the 1987 Act.
There is no evidence that death nor incapacity resulted from the injury and on that basis I find that no death nor incapacity resulted from the injury.
In accordance with ss 16(1) of the 1987 Act, I find that the date of the injury is to be a deemed date of injury of 21 June 2024, noting that is the date that the claim for compensation was made and there is no death nor incapacity that resulted from the injury.

The extent and quantification of the applicant’s entitlement to permanent impairment compensation, pursuant to s 66 of the 1987 Act

Having made these findings, it is appropriate for me to remit the matter to the President to be referred to a Medical Assessor for an assessment of WPI of the cervical spine and her right hip (in addition to accepted injuries as agreed between the parties) resulting from the injury on 21 June 2024.
All of the materials admitted in the proceedings will be included in the referral.

SUMMARY

I find that the applicant had a pre-existing disease condition of her cervical spine, being a degenerative disc disease in the cervical spine, and that the applicant developed symptoms and sustained injury to her cervical spine in the nature of an aggravation, acceleration, exacerbation and deterioration of that disease process, to which the applicant’s employment was the substantial contributing factor pursuant to s 4(b)(ii) of the 1987 Act, with a deemed date of injury of 21 June 2024.
I find that the applicant had a pre-existing disease condition of her right hip, being greater trochanteric bursitis, and that the applicant developed symptoms and sustained injury to her right hip in the nature of an aggravation, acceleration, exacerbation and deterioration of that disease process, to which the applicant’s employment was the substantial contributing factor pursuant to s 4(b)(ii) of the 1987 Act, with a deemed date of injury of 21 June 2024.
I do not find that the applicant had a pre-existing disease condition of her bilateral shoulders nor that her employment was a substantial contributing factor to the aggravation, acceleration, exacerbation and deterioration of a disease of her bilateral shoulders pursuant to s 4(b)(ii) of the 1987 Act.
On that basis, the matter is remitted to the President to be referred to a Medical Assessor for an assessment of WPI of the applicant’s cervical spine and right hip (in addition to accepted injuries as agreed between the parties) resulting from injury on 21 June 2024.

[2025] NSWPIC 244

3 June 2025