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

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Scott v State of New South Wales (NSW Police Force) [2025] NSWPIC 110
APPLICANT:	Sue-Ellen Scott
RESPONDENT:	State of New South Wales (NSW Police Force)
MEMBER:	John Wynyard
DATE OF DECISION:	25 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim for injuries caused by nature and conditions of applicant’s 25 years as a police officer; whether applicant satisfied her onus; whether claim barred by sections 254 and 261 of the 1998 Act; whether applicant satisfied test for ‘main contributing factor’; Held – applicant failed to demonstrate any corroborative contemporaneous evidence; reliance on chiropractic evidence rejected; applicant’s expert failed to give a diagnosis or to explain nature of the disease case alleged; observations on expression ‘nature and conditions’; State of New South Wales (Sydney Local Health District) v Edwards, and Willoughby City Council v Kevric discussed and applied; onus not satisfied; Brown v Lewis applied; main contributing factor test inappropriate; Schedule 6, Part 19H clause 25 of the 1987 Act considered and applied; award respondent.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the respondent. 2. No order as to costs. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Sue Ellen Scott(the applicant), brings an action against the State of NSW (NSW Police Force), the respondent for s 66 benefits in respect of injuries allegedly sustained on a deemed date of 15 May 2022, caused by the heavy and repetitive nature and conditions of her employment.
Dispute notices were duly issued and proceedings were commenced.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) has Ms Scott satisfied her onus;
(b) is Ms Scott’s action barred by the provisions of s 254 of the 1998 Act;

(c) is Ms Scott’s claim barred by the provisions of s 261 of the 1998 Act, and
(d) was employment a substantial contributing factor to Ms Scott’s injuries.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was heard on 10 February 2025 by Teams and completed by way of written submissions. Mr Tye Hickey of counsel appeared for the applicant instructed by Ms Melissa Arndell, of Bourke Legal. Mr Philip Perry of counsel appeared for the respondent instructed by Ms Ashleigh Harvey of Turks Legal. Ms Jane Straudel appeared for a time on behalf of 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;
(b)    reply to resolve a dispute and attached documents;
(c)    application to admit late documents by the respondent dated 4 February 2025;
(d)    written submissions from Mr Hickey dated 25 February 2025, and
(e)    written submissions from Mr Perry dated 26 February 2025.

Oral evidence

No application was made with regard to oral evidence.

FINDS AND REASONS

Preliminary

Ms Scott brings an action for lump sum compensation for alleged injuries to her:
·        cervical spine;
·        left and right shoulders;
·        lumbar spine, and
·        right ankle.

Statement

Ms Scott made a statement dated 19 November 2024.[1] She was born in 1977 and attested as a Police Officer in November 1997.
[1] ARD page 1.
She was stationed at a number of locations including Leichhardt, Balmain and Dubbo where she worked in general duties until 2002 when she was promoted to the rank of Detective Senior Constable.
She ceased work on 15 May 2022 and was medically discharged on 13 June 2024 with post-traumatic stress disorder.
Ms Scott listed a number of complying agreements which have evidenced various injuries in her career. She suffered:
·        scarring to her skin on 19 September 1997;
·        “right knee” injury on 11 October 2000;[2]
·        left ankle injury on 30 January 2001, and
·        left knee injury on 29 September 2021.
[2] See comments in the reasons below.
She entered into complying agreements for modest amounts in relation to each claim.
Ms Scott then stated that she had sustained further injuries, which she then described, as “arising from the heavy and repetitive nature of my duties as a police officer from November 1997 to 15 May 2022.”
She described injuries to her neck and shoulders, saying that over her 25 plus years with the police she had been involved in “rolling, wrestling, bending, twisting, lifting, holding, falling and high impact events”.
She had “fallen into things, onto things, over things and through things.”
She said she had been “knocked over, tripped over, fallen over.”
She assisted ambulance officers to lift people out of motor vehicles and to help “carry persons, bodies and objects up and down steep embankments, slopes, stairs, narrow and tight spaces.”
She described further the active nature of her duties as a police officer, being “involved in countless violent arrests” and being forced into awkward and twisting positions, all of which have progressively injured my neck and shoulders,” Ms Scott advised that in attending training programs she was required to be involved in physical and aggressive exercises which she described in some detail.
She also said that she worked for many years in her role as a Detective doing “covert monitoring”. She said that involvement included “listening to telephone intercepts, taking phone calls and a great deal of computer work,” which included typing, transcribing calls and entering data. She wore headphones when she did that work and could be so involved for long stretches of days, weeks and months at a time at 8-10 hours per shift.
She was good at the work, she said, and as a consequence that type of work was “almost exclusively” assigned to her.
Ms Scott alleged that her desk was not ergonomically set up or assessed at any point and that she began to experience pain in her neck pain and shoulder whilst undertaking that work.
Those symptoms came on over time and Ms Scott said that her neck pain became chronic “in around 2020”.
With regard to her lower back and right ankle, Ms Scott repeated her description of the active nature of the physical requirements of the job.
She again mentioned the training programs and defensive tactics involving physical role play.
Ms Scott also said that she was required to wear an appointment belt at all times. This required her to sit in a twisted position to accommodate her service revolver, often for 2-3 hours at a time. She said the appointment belt itself weighed approximately 9kg and the weight and tightness of the belt “caused alterations to my posture and walking gait and caused ongoing pain in my lower back."
She said that she often rolled her right ankle during foot pursuits or climbing over fences and walls and she was “involved in running, jumping, tripping, falling, slipping and skidding.”
She said she had suffered sciatic pain on and off for many years but her pain became chronic around 2020.
So far as medical treatment was concerned, she stated that she had obtained treatment from her general practitioner (GP) Dr Paul Roth who had referred her for an occipital nerve block in January 2023.
She had also been treated by Chiropractors Garth Pywell and Kylie Hough. Ms Scott was then seeing Todd Daniels. She was also seeing an osteopath Catherine McDulling in early 2024.
Ms Scott set out 25 symptoms from which she suffered as a result of her injuries.
She referred to her consultation with her medico-legal expert Dr Bodel, whom she found to be “very thorough” and she agreed with his report of 19 October 2023.
She was however disappointed with her consultation with Dr Bentivoglio, the respondent’s qualified expert, whom she described as “obnoxious and rude.” She complained that
Dr Bentivoglio commenced assessing her previous injuries to her knees and left ankle, and when challenged he began “huffing and puffing” and “became visibly angry.” The rest of the appointment, Ms Scott said, was “hurried.” She had read his report of 18 June 2024 and disagreed with his comments, which she then addressed in detail.
She repeated that her duties of monitoring covert and electronic evidence were performed frequently, as she was good at doing so. This was computer work in addition to “keeping an eye on audio/video live streams, radio transmissions, up to 8-10 telephone lines and all the while typing and writing transcriptions and summaries.” It was not, she said “light clerical duties,” as Dr Bentivoglio had stated. She said at [46]:
“46. Some of the other Detectives got new chairs one time. Our small strike force never got them. Another female colleague in the strike force inquired about a better ergonomic set up because she had a sore neck. I did the same however was informed I would have to lodge a P902 or a hurt on duty claim. I don’t believe I have ever lodged my own Hurt on Duty (“HOD”) claim. For the previous physical injuries that have settled, all the P902s and claims were submitted by others/supervisors. Even my psychological claim P902 form was submitted by a manager. I have always suffered through and never reported anything because I loved my job and never wanted to get sidelined for being a sook.”
Ms Scott then discussed the s 78 Notice of 16 August 2024. She said from [53]:
“53. I did not understand that I had to report my injuries within specific timeframes. Until reading this Section 78 Notice, I had never heard of sections 254 or 261 of the Workplace Injury Management and Workers Compensation Act 1998
54.    I entered the NSW Police Force during a time when you were seen as weak, lazy, shonky or useless if you ever spoke up about injuries. We were always hurting ourselves but when suffering pain, you were expected to suck it up and get on with it. The alternative was to be branded a sook, particularly being a female in the cops in the 90s. It was hard enough to be treated the same as the blokes, and I had to get physical and hands on all the time for credibility, and to do the job properly.
55.    I admit I have made a mistake and may have been ignorant by not reporting my injuries. But I also didn’t want to waste time doing paperwork for injuries that weren’t caused by one specific incident, but were continually causing me problems. I just tried to focus on my job and self-manage my symptoms.
56.    My PTSD symptoms also because severe towards the final years of my Policing career. These became my focus, as did seeking treatment for these symptoms. Treatment took years. It is still ongoing.”

Clinical records

On 24 February 2022 Kylie Hough of the Dubbo Chiropractic Centre wrote that Ms Scott first attended Ms Hough’s practice on 25 July 2019 “complaining of neck stiffness, constant headaches and upper thoracic stiffness.”[3] She said:
“The first four visits I had with Sue-Ellen were frustrating. It was incredibly difficult to get her upper and mid thoracic joints to move. This was somewhat surprising to me as she was such a young active woman. At this point I referred her for a plain x-ray of her thoracic spine and pelvis. The results showed nothing remarkable in her lower back but a loss of disc height of a mid-thoracic vertebra (I would say T6)…”
[3] ARD page 54.
Ms Hough suggested that she had seen something in the X-ray that the radiologist had missed, and gave her explanation as to what might have been the cause of Ms Scott’s complaints. Ms Hough continued:
“… What wasn’t reported but what was obvious on the actual x-ray was the onset of anterior osteophytes on the joints above this… At T3/4, T4/5 and T5/6. This degeneration is uncommon in females of Sue-Ellen’s age but it explained the tightness in her spine and muscles in that area. When muscles are chronically hypertonic the net effect is that the spine is hypo mobile and joints that should move freely start to degenerate and osteoarthritis becomes a possibility.”
Ms Hough recommended that Ms Scott had “five remedial massages to release the muscle spasm, before seeing her again.” When Ms Scott returned, every chiropractic session produced an “audible release”, as the massages had been successful. Ms Howe said that she had seen Ms Scott on 30 January 2023.
An entry in the notes of Ms Scott’s GP, Dr Ai-Vee Chua, of 6 December 2019 stated:[4]
“…Has been having discomfort in the upper back, which she knows is related to posture at work whilst sitting at the computer Seeing chiropractor Kylie Hugh [sic] (Bultje St) who organised X-rays at PRP Radiologist has reported X-rays as normal, however Kylie concerned about a "spur" on X-ray of spine in the right lower thoracic region -> films reviewed, in my opinion the prominent lip at that level may be rotational or early changes of osteoarthritis, and unrelated to her upper back discomfort….”
[4] ARD page 43.
The X-ray concerned was of taken on 15 August 2019 and reviewed by radiologist
Dr G Goldin, who commented:[5]
“No significant pathology demonstrated.”
[5] ARD page 53.
A “patient information form” dated 25 July 2019 from Ms Hough was also lodged by Ms Scott.[6] The handwritten answer to a templated question as to whether Ms Scott’s case was “through workers compensation” was “No.” Ms Scott’s occupation as “detective” was noted along with her employment with the “NSW Police.” The answer to a templated question “I would like help for:” was “neck shoulder back tightness.” The form contained a body diagram which circled the back area from the back of the head, down the arms and across the buttock area.
[6] ARD page 48.
Another form, presumably filled out at the same time, as it had the same date, 25 July 2019 – was entitled, “patient history form,” Ms Scott’s occupation was described as “Police Officer (Detective).” The “presenting complaint” was “sore neck, back stiffness and headaches – constantly.” The Form demonstrated that Ms Scott had been treated on 23 occasions between 27 July 2019 and 30 January 2023. Many of the handwritten entries for those occasions stated “checkup,” and two, in December 2019 and January 2020 were marked “dna” – presumably, “did not attend.” The form noted a variety of complaints made by Ms Scott, including:
·        “neck shoulder back tightness,”
·        “very sore in L hip better r.o.m. in neck”
·         “feels amazing today -Thai massage yesterday,”
·        “checkup back is all right - had asian massage…”
·        “yoga, pilates, massages.”
On 29 September 2022 GP Dr Roth noted:[7]
“chronic neck and head pain due to tension.
Related to PTSD.
Suggested try occipital nerve block.”[8]
[7] ARD page 45.
[8] ARD page 45.

Dr James Bodel, orthopaedic surgeon

Dr Bodel reported on 19 October 2023[9]. In relating the history he relied on, Dr Bodel said:
“The claimant has developed neck and bilateral shoulder girdle pain and pain in the right index finger as a result of the nature and conditions of her work between November 1997 and 15 May 2022.
I note at the top half of Page 2, the assertions as to the aspects of her policing role which put her at risk of injury to these areas. This includes the activities of a police officer when effecting an arrest, which includes “rolling, wrestling, bending, twisting, lifting, holding, falling and high-impact events over the years as a police officer”. There are also times when she would “fall into things, onto things, over things and through things”. She may have been knocked over or tripped and fallen over.”
[9] ARD page 70.
Dr Bodel said[10]:
“A formal letter from the Dubbo Chiropractic Centre from Kylie Hough is noted. There is an assessment by Dr Simone Scovell, dated 11 July 2023, which confirms the various ankle injuries and the other clinical matters. I note that she has identified an internal derangement in the region of the right knee, the left knee and a lateral ligament injury to the ankle. She has concluded various levels of Permanent Impairment under the Table of Disabilities (Table of Maims).”
[10] ARD page 75.
Dr Bodel was asked to give a complete history “as given by our client”:
“The complete history is that the claimant has had injuries to the neck, shoulders and right index finger, the back, both hips and the right ankle as a result of the nature and conditions of her work in general in the NSW Police Force.”
Dr Bodel was asked[11]:
“3. Has our client’s employment with the NSW Police Force been a substantial contributing factor to the diagnosed injuries?
Her employment with the NSW Police Force has been a substantial contributing factor to the diagnosed musculoskeletal injuries. I note that she is currently off work and awaiting medical discharge because of PTSD and that is a matter for others to assess.
[11] ARD page 75.
Dr Bodel noted on examination that Ms Scott walked with a broad-based and somewhat unsteady gait pattern, but no limp.

Dr Simone Scovell, occupational physician

Dr Scovell issued a report on 11 July 2023 to Ms Scott’s solicitors.[12] Dr Scovell observed that Ms Scott had been diagnosed with Post Traumatic Stress Disorder, her last day of work being 15 May 2022.
Ms Scott had “a claim for incapacity” as a result of that condition. Dr Scovell further noted the injuries that were the subject of the Complying Agreements, which she listed:
“1.     Injury to right knee - 11 October 2000 - claim number B01657982;
2.      Injury to left ankle – 30 January 2001 – claim number B0147409;
3.     Injury to left knee – 29 September 2021 – claim number 207589EML, and
4.      Scarring chin – 19 September 1997 – claim number A2236641.”
[12] ARD page 55.
Dr Scovell then gave a history of the circumstances of each claim. They were detailed and appeared to have been described by Ms Scott at the consultation.
Dr Scovell noted that Ms Scott’s Post Traumatic Stress Disorder condition had caused “secondary cervical spine chronic pain with neck muscular tension and cervicogenic headaches. She has failed conservative treatment and has proceeded towards a path of interventional pain management very recently having undergone an occipital nerve block to try and ease the cervicogenic pain and headaches.” Dr Scovell also recorded that Ms Scott required dental crowns as she ground her teeth. Dr Scovell said:
“These conditions are all deemed to be secondary to her post-traumatic stress disorder scenario.”
Dr Scovell was asked to give an assessment of whole person impairment for each of the above injuries and did so. In her summary, Dr Scovell said:[13]
“Sue-Ellen Scott is a 45-year-old right-hand-dominate lady who enjoyed a long and healthy career with the NSW Police Force; working her way to her final position of a Detective Senior Constable in the Drug Unit based in Dubbo.
During the course of her work, she sustained a number of injuries which have been detailed in the earlier sections of the report.”
[13] ARD page 60.

Dr John Bentivoglio, orthopaedic surgeon

Dr Bentivoglio was retained by the respondent and reported on 18 June 2024. Amongst the documents reviewed by Dr Bentivoglio was Dr Bodel's report of 19 October 2023.
Dr Bentivoglio said:[14]
“At the commencement of the interview I explained the purposes of an independent medicolegal examination. I indicated that I was not a treating doctor and that I was not able to provide any advice.
My report is based on the history provided by Sue-Ellen Scott, the appropriate clinical
examination and the documentation provided.
This lady advised me she has been in the police force for 27 years. During her deployment she sustained several injuries to her person. I dictated this report in front of this lady up to Diagnosis and Opinion and invited her to make any corrections to ensure the accuracy of the details.
[14] Reply page 13.

He advised firstly as to the claim regarding Ms Scott’s neck and shoulders. He said:
“NECK AND SHOULDERS
This lady advised me there was no specific incident when she started to experience symptoms present in her neck and shoulders around 2016. She felt her symptoms came on as a result of doing light clerical duties (desk work). She advised me she had not had problems with her neck and shoulders previously. She never reported any problems at work.”
As to the claim in relation to Ms Scott's back:
“Once again, there is no specific injury to this lady's back. She advised me she started to experience symptoms present in her back around 2016. She has not had any specific injuries to her back at work. She has never lost any time off work for her back complaint, has not had any investigations done of her lumbar spine and has had only conservative treatment. It does not give her lasting improvement in her symptoms. She states that since stopping work there has not been any improvement in her back symptoms.”
Dr Bentivoglio noted Ms Scott's current symptoms in some detail, noting complaints about her shoulders, neck and back.
On examination Dr Bentivoglio observed that Ms Scott walked without a limp in the short distance he was observing her.
Dr Bentivoglio noted that no investigations had been done of Ms Scott's shoulders and back, but after seeing an X-ray of the thoracic spine dated August 2019, he noted “there was a little loss of height in the mid-thoracic vertebral body by approximately 15%. In the absence of any specific injury, this would have to be a constitutional developmental abnormality."
Dr Bentivoglio said[15]:
“This lady has not had any specific injury to her neck, back, shoulders or right ankle but states that her neck, back and shoulder symptoms developed as a result of her doing clerical type work activities. These type of work activities are generally given to patients recovering from spinal and shoulder complaints. She has not had any investigations to determine whether she has any disability apart from normal aging type degenerative changes that could possibly relate to her employment.”

61. When asked to recap the history he had obtained, Dr Bentivoglio said:

“This lady advised me she has not sustained any injuries to her neck, back, shoulders or right ankle. She felt that her symptoms came on as a result of doing clerical type desk duties.”
[15] Reply page 17.

Dr Bentivoglio confirmed that Ms Scott continued to complain of neck pain with radiation, ongoing shoulder pain and back pain with peripheral radiation of her symptoms.
When asked to comment on Dr Bodel’s report, Dr Bentivoglio said:
“I have viewed an IME report for this lady's solicitors. In the absence of any investigations and in the absence of a specific injury to this lady's person, I do not believe it is appropriate for there to be any impairment rating.”

Dispute notices

A s 78 notice issued on 16 August 2024[16]. It denied liability on six separate grounds:
(a)    no injury had been received: s 4;
(b)    employment had not been a substantial contributing factor pursuant to s 9A of the 1987 Act;
(c)    employment was not the main contributing factor to the injury as required by
s 4(b) of the 1987 Act;
(d)    the permanent impairment had not resulted from an injury pursuant to s 66 (1) of the 1987 Act;
(e)    we do not agree that you are entitled to compensation because you failed to give notice of your claimed injury and make a claim for compensation within the time prescribed as required by sections 254 and 261 of the 1998 Act, and
(f)    alternatively, the accepted injury had not resulted in permanent impairment.
[16] ARD page 20.
The insurer disputed liability also by preferring Dr Bentivoglio’s opinion of 18 June 2024 to that of Dr Bodel of 19 October 2023.
A s 287A notice issued on 10 December 2024.[17] Relevantly the notice stated:
[17] Reply page 9.
(a)    you did not sustain an injury arising out of or during the course of your employment with as required under section 4 of the Workers Compensation Act 1987 (WC Act);
(b)    your employment is not a substantial contributing factor to any injury you may have sustained, as required under s 9A of the WC Act;
(c)    we are disputing that you are entitled to permanent impairment lump sum compensation for injuries on 15 May 2022 (deemed), and
(d)    we are disputing that you are entitled to compensation for pain and suffering for your injury on 15 May 2022 (deemed).
This decision is made in accordance with s 4, 9A, 66, 67 of the WC Act.
Reasons relevant to the decision include:
(a)    EML refers to and continues to rely on the section 78 notice dated 16 August 2024;
(b)    on 21 August 2024, your solicitors sought a review of the above dispute notice. They allege Dr Bentivolgio did not recorded a mechanism of injury consistent with your instructions advising you suffered from severe Post Traumatic Stress Disorder which impacted your ability to provide a good account of your injuries;
(c)    your solicitors requested that a copy of the letter of instruction to your IME,
Dr Bodel, which sets out the circumstances of the alleged injuries to the neck, bilateral shoulders, lower back and right ankle be provided to Dr Bentivoglio as the factually correct mechanism of your injury;
(d)    Dr Bentivolgio examined you on 18 June 2024. Dr Bentivoglio took a history of your injuries directly from you, conducted an in person examination, and also reviewed all relevant documentation provided to him including the report of your IME, Dr Bodel;
(e)    EML maintains that the opinion of Dr Bentivoglio was open to him and we continue to rely on his report, and
(f)    we therefore maintain the dispute as raised in the s 78 notice dated 16 August 2024.

SUBMISSIONS

Mr Hickey outlined the nature of the case. He noted the injuries contained in the complying agreements but submitted that the current action was in respect of the pleaded injuries.
Mr Hickey referred to Ms Scott's statement. He referred to Ms Scott's description of her duties in different commands in her 25 years of service and her work as a covert operative.
Mr Hickey submitted that evidence contained a detailed background, including the onset of Ms Scott's injuries. She experienced discomfort around the neck and shoulders in 2020 and the lower back and right ankle, which had been on and off for many years, had become chronic in 2020.
It was relevant, Mr Hickey said, that the duties Ms Scott described had not been traversed or challenged by the respondent.
Mr Hickey submitted that the crux of the matter concerned the weight to be given to the reports of the medico-legal specialists. This raised a preliminary point “which must be dealt with,” Mr Hickey said. He referred to Ms Scott's account of her assessment with
Dr Bentivoglio and her opinion that Dr Bentivoglio had misunderstood what she told him. Mr Hickey submitted that how Dr Bentivoglio concluded Ms Scott had only been doing light duties was unclear, and even if limited weight were put on the applicant’s evidence, it was plain that Dr Bentivoglio had proceeded on an incorrect history.
Mr Hickey said that Dr Bentivoglio’s report accordingly did not have any weight. He submitted that Dr Bentivoglio took no history of the extensive background that was taken by Dr Bodel.
Mr Hickey said that the applicant’s case was simply that the nature of Ms Scott's duties over an extensive period of time led to the chronicity for which she is now suffering and ultimately led to the medical treatment she described.
Mr Hickey conceded that the treating evidence relied on was relatively limited but nonetheless was of some assistance. Mr Hickey referred to Ms Scott’s evidence that she attempted to deal with her condition for some time by undergoing chiropractic treatment and massage. He referred to a patient information form dated 25 July 2019 which showed that Ms Scott would like help for “neck shoulders back tightness” and a diagram of the affected areas. Mr Perry interposed to agree that an entry read “needs back cracked every day.”
Mr Hickey referred to the variety of entries in the chiropractor’s form, which also spoke to Ms Scott’s continuing neck and back problems. He noted that the chiropractor had organised an X-ray of the thoracic spine. It was unsurprising that the right lower extremity injury was not mentioned, in view of the fact that these notes were provided by a chiropractor, Mr Hickey said.
Mr Hickey also referred to the report from Ms Hough of 24 February 2022 which confirmed her treatment of Ms Scott from 2019. The chiropractor had organised an X-ray of the thoracic spine in 2019.
Mr Hickey also submitted that there was support from the GPas well. He referred to the entry by Dr Chua of 6 December 2019, conceding that the entry regarding a prescription was probably unrelated. Whilst Mr Hickey submitted that he had canvassed “the bulk of the treating evidence” he also referred to an MRI dated 11 October 2024 of the cervical spine and an “EOS” of the full spine on 25 October 2024. Mr Hickey conceded that the results of the latter investigation were “not entirely clear.”
As to Dr Bentivoglio, Mr Hickey said that his report should be read with the evidence of
Ms Scott in mind.
Mr Hickey submitted that Dr Bentivoglio had no history that was anywhere near as detailed as that in Ms Scott’s statement and in Dr Bodel's opinion. He also submitted that Dr Bentivoglio did not establish what exactly Ms Scott was actually doing when she performed clerical duties. He appeared to regard the fact that there had been no specific injury to the neck, back, shoulders or right ankle as being determinative.
The difficulty with Dr Bentivoglio’s opinion was that he failed to take any history of the extensive duties outlined in Ms Scott’s statement that had not been traversed in the proceedings, and did not actually establish what she had been doing in her ‘clerical duties,’
Mr Hickey submitted that the statement must have been before Dr Bentivoglio, because he acknowledged receipt of Dr Bodel's report. These factors constituted a fatal flaw in
Dr Bentivoglio’s opinion and it should therefore be accorded in no weight. Dr Bentivoglio said there were no investigations, which was incorrect, and he conceded that Ms Scott had age related degenerative changes.
Dr Bodel on the other hand, had taken a thorough and uncontradicted history. He confirmed that the diagnosis was an aggravation of degenerative disease and supported that
Ms Scott’s employment had been a substantial contributing factor to her injury.
Mr Hickey submitted that the history taken by Dr Bodel was consistent with her evidence, consistent with what was contained in treating material from the GPand indeed the chiropractor, and would establish disease injuries to the cervical spine, the lumbar spine, the left and right shoulder and right ankle. Any concerns about these injuries would not be held sufficient as the contemporaneous reports were entirely consistent with Ms Scott’s evidence.

Mr Perry

Mr Perry’s initial submissions were interrupted when Mr Hickey objected to submissions being made on the question of failure to give notice and failure to make a claim within the prescribed time in contravention of s 254 and s 261 of the 1998 Act.
Mr Hickey said that he did not address these issues because they had not been raised in the s 287A notice of 10 December 2024.
Mr Perry submitted that the issue had been fairly raised in the earlier s 78 Notice of
16 August 2024. Mr Perry said he would seek leave to raise these issues if I considered
Mr Hickey were correct.
A perusal of the s 287A notice shows that the insurer referred to and continued to rely on the s 78 notice. and I indicated that the issue was still alive. The argument is contained in the transcript and I found that the issues had been raised. I issued the following directions:
“The Commission directs:
1. I direct the applicant to lodge and serve written submissions relating to the dispute concerning notice and claim by 19 February 2025.
2. I grant leave to the respondent to lodge and serve written submissions in reply if necessary by 26 February 2025.”
Submissions were duly received and will be considered later in these reasons.
Resuming his submissions following my ruling, Mr Perry noted that Ms Scott ceased work on 15 May 2022 and made no claim, when she was well aware that the work had caused her injuries.
Mr Perry said that Miss Scott just ‘left work’ when she was well aware that her employment was the cause of her injuries. She was aware of the procedures necessary. She had been involved in the five complying agreements that were lodged, and Mr Perry noted that in four of them the claim had been made on 17 August 2023, whereas the current claim had not been made until 19 January 2024.
Ms Scott was advised by her current solicitors at that time, and yet gave no notice of the injuries that she now claims, Mr. Perry submitted.
Mr Perry noted that there was no challenge to the assertion that Ms Scott had not given notice of injury nor made a claim within the terms of the relevant legislation.
Mr Perry then referred to what Ms Scott did have to say in her statement about the subject. He submitted that it could be summarised on the basis that Ms Scott did not wish to waste time doing paperwork. She did not allege that she was entitled to the benefit of the exclusory sections in either s 254 or s 261 of the 1998 Act.
Whilst Mr Perry conceded that it may very well be that Ms Scott had never heard of ss 254 or 261 of the 1998 Act, as she said, Ms Scott did not say that she was ignorant of the requirement to give notice and to make a claim as required by the legislation.
Mr Perry submitted that the onus was on Ms Scott to satisfy the Commission of the statutory exclusions.
Mr Perry submitted that the question of notice was of some importance as Ms Scott was alleging that over the period of her employment going back 17 years, she had sustained the various injuries that she now complained of. The longer she delayed giving notice, the greater the prejudice there was to the respondent.
Mr Perry submitted that this was a case in which the legislation regarding notice and claim had “real force.”
At this point, Ms Harvey, instructing Mr Perry, advised that the complying agreements demonstrated that notice had been given, as indicated in the ‘agreement details.” The date appearing next to the ‘date of injury’ was the date on which the notification was made to the insurer, and the date appearing next to the ‘date claim made for S66’ was the date the claim was made. The ‘date of the agreement’ reflected when the agreement was made. Thus, said Ms Harvey, there had been no need in those claims to raise s 254 or 261, as the injuries had been notified in time.
Mr Perry adopted Ms Harvey's explanation, and submitted that it re-emphasised that there was no claim for injury for the subject injuries. He rhetorically asked where the evidence was to explain why notice of the subject injuries had not been not given at or before, for example, the psychological injury was notified, which had not been notified until 27 July 2020.
Mr Perry then addressed the criticisms that had been made both by Ms Scott and by her counsel of the report of Dr Bentivoglio which alleged that Dr Bentivoglio had the wrong history. Mr Perry demurred. Whilst he noted that there may have been a personality clash and that Ms Scott clearly was of the opinion that Dr Bentivoglio did not act within the precepts that one would expect from a doctor to a patient in a medico-legal setting, Mr Perry referred to Dr Bentivoglio’s introduction. Mr Perry emphasised the fact that
Dr Bentivoglio advised that he dictated his report to Ms Scott, up to the diagnosis and opinion section, and invited her to make any comment, or corrections, which she did not.
Mr Perry said that whilst Ms Scott challenged Dr Bentivoglio’s report in a number of ways, she did not say that Dr Bentivoglio was incorrect to state that she was invited to correct any of his dictation up until the point of diagnosis.
The history that was read back to her by Dr Bentivoglio was that the neck and shoulders became symptomatic in 2016, and that those symptoms came on as a result of her doing “light clerical duties.”
Mr Perry acknowledged that Ms Scott did not accept that she was doing “light” clerical duties but Mr Perry said there was no denial that, at the time Dr Bentivoglio read this to her, her symptoms had come on while she was doing desk work.
That work as described by Ms Scott was very different to the physical work she described that she provided to Dr Bodel.
Mr Perry accepted without question that a police officer engaged in his or her duties was involved in a vigorous physical occupation. He referred to Ms Scott's evidence about her having to train police officers. Mr Perry said that whilst he did not challenge that evidence, he did challenge the evidence that during that time Ms Scott sustained injuries. It was not suggested to either Dr Bodel or Dr Bentivoglio that she would have experienced symptoms at that time.
Mr Perry submitted that in such a situation there would need to be expert evidence explaining that, notwithstanding that there were no symptoms experienced at the time these physical activities were being carried out and notwithstanding that symptoms did not come on until 2016, there was a causal link between that work and her current symptoms.
Mr Perry referred to the South West Area Service v Edmonds[18] and AV v AW[19] in that regard.
[18] [2007] NSWCA 16.
[19] [2020] NSWWCCPD 9.
Mr Perry then submitted that the test relevant to a disease case is whether employment was the main contributing factor and he acknowledged that Mr Hickey conceded that in his submissions.
In AV v AW, DP Snell said that medical evidence was relevant and desirable in determining that question, Mr Perry said, and in the present case there was none. Dr Bodel had answered questions related to whether employment was a substantial contributing factor.
Mr Perry submitted that the main contributing factor test was more stringent and that
Dr Bentivoglio’s history was that the symptoms in the neck and the shoulders came on in 2016, not while Ms Scott was doing heavy physical activity or any specific injury, but rather while she was doing clerical work.
Mr Perry submitted that the history given to Dr Bentivoglio and not contradicted when he read it back to her, was that Ms Scott had experienced the onset of her symptoms while she was doing clerical work in 2016.
Mr Perry submitted that there was not sufficient evidence to satisfy the Commission, particularly in the light of the legislation to which he had referred, that Ms Scott had suffered an injury to her neck, her back, her shoulders or her right ankle.
Mr Perry referred to the diagnosis and opinion of Dr Bentivoglio, which had not been read to Mis Scott by Dr Bentivoglio. Mr Perry commented that Dr Bentivoglio in effect had a lay person saying ‘here is the medical reason that I have symptoms in these parts of my body: it is as a result of me doing clerical type duties.’
Mr Perry submitted that contrary to the submission of Mr Hickey, the absence of a close analysis of the physical nature of the work was of no detriment whatever to the strength or the foundation of the opinion given by Dr Bentivoglio.
Dr Bodel's opinion, in contrast, Mr Perry submitted, was deficient not only to address s 4(b) of the 1987 Act in what was claimed to be a disease case, but also that Dr Bodel in any event failed to clarify why there was a causal connection in the form of a substantial contributing factor to the matters he relied on.
Mr Perry referred to Dr Bodel's report and noted that he obtained a different history of the injuries to that obtained by Dr Bentivoglio.
Mr Perry referred to Dr Bodel’s reference to “the top half of page two” in reciting the history he was relying on which came from obviously his letter of instruction which described the vigorous nature of her duties as a police officer. However, he argued, there was nothing within the history relied on by Dr Bodel that contradicted the history taken by Dr Bentivoglio that the symptoms were first noticed whilst doing clerical work. There was no history given of any particular event that caused any particular injury to Ms Scott.

Mr Perry referred to the history taken by Dr Bodel regarding the desk-based work, noting in passing that there was no expert evidence to confirm that Ms Scott's desk set up was ergonomically compromised. Dr Bodel did record that Ms Scott felt symptoms in her neck, shoulders and right finger and that the pain became chronic in 2020.
Mr Perry conceded that for the purposes of his argument, 2016 is the date the symptoms came on, although the history from Dr Bodel suggested that they might not have come on until 2020.
However, Mr Perry submitted that it was another matter to assert that her injuries had occurred at an earlier time, indeed over the period of her employment, a period of
20 years.
Dr Bodel's opinion being an expert opinion on medico-legal implications of the case did not assist when he gave broad generalisations in his opinion as to causation. Dr. Bodel's answer was not a complete history, but rather a statement without particularity giving a broad and unhelpful summary in which he stated that the nature and conditions of her work in general with the NSW Police force had caused the injuries.
Mr Perry submitted that I could assume that Dr Bodel, being an experienced practitioner in this jurisdiction, would be aware of the often cited legal opinion that the use of the expression “nature and conditions” was singularly unhelpful. Nonetheless Mr Perry submitted Dr Bodel had applied the ‘nature and conditions’ formula.
Mr Perry referred to a complying agreement that dealt with the right leg as it disclosed that there had been an injury on the 11 October 2000 to the right leg at or above the knee.
The complying agreement claims were specific injuries Mr Perry submitted which may well be the diagnosed injuries to which Dr Bodel referred.
Those complying agreements (except the post-traumatic stress disorder agreement) were evidence how the injuries came to occur, as opposed to Ms Scott's present application that relied only on a nature and conditions claim.
The broadbrush approach by Dr Bodel to the history was no basis for his conclusion that employment was a substantial contributing factor, let alone the main contributing factor - which was the test that Dr Bodel erroneously did not apply.
Mr Perry submitted that the disease involved in the deemed date of injury was not identified. Mr Perry said that Dr Bodel did not give even as much as an opinion that there were degenerative changes that had been aggravated by the activities.
Mr Perry submitted that that was hardly surprising in view of the fact that there were no investigations before Dr Bodel of those body parts.

Mr Hickey in reply

Mr Hickey referred to the report of Dr Scovell of 11 July 2023. That report set out each of the injuries was subject to settlement by complying agreement, and that each injury was a frank injury to specific body parts that gave rise to the s 66 claims that were settled in that manner. There was a very clear distinction, Mr Hickey submitted, between those events and the injuries that were the subject of the present dispute, which were a nature and conditions type injury.
Mr Hickey said that he would provide in the written submissions authority for the proposition that it was irrelevant whether the expert medical evidence used the term substantial contributing factor or main contributing factor, provided that his intention was clear and there was no other explanation.
Mr Hickey maintained the terms of the claim in that Ms Scott said that the nature and conditions of her employment over time gave rise to a gradual onset, which was consistent with the histories obtained by Dr Bodel and ultimately the opinion expressed by Dr Bodel who described a musculo-ligamentous condition in the context of a disease injury.
Dr Bentivoglio conceded that the nature and conditions could give rise to the aggravation of a disease but said in this case the evidence was not sufficient. That, Mr Hickey said, was in contrast to Dr Bodel's view who had a correct history involving the entirety of the employment period, and he explained the circumstances of the onset of the condition.
Accordingly Mr Hickey submitted that the criticism of Dr Bodel’s opinion was not made out. In terms of the quality of the evidence, Dr Bodel’s evidence was of significant weight and consistent with not only what the applicant told him, but also with contemporaneous reports.
Mr Hickey repeated that there was no need to be bothered by the terms of the claims, as they concerned different body systems and parts to those that were nominated in the Complying Agreements.

WRITTEN SUBMISSIONS

In accordance with the timetable, Mr Hickey lodged submissions as to the issues of s 254 and 261 of the 1998 Act. It is necessary however to consider the applicant’s case before turning to them.

DISCUSSION

Ms Scott established that her duties with the police service required a great deal of physical activity. To that extent she established that the nature and conditions of her employment involved all the physical stresses that Ms Scott somewhat colourfully described. To fulfill her onus, however, Ms Scott has also to establish that those same activities caused the injuries she now complains of.
The most compelling evidence would be any P902 report of injury form that gave notice of her symptoms. She certainly knew about P902 forms, as she had already settled four actions before she made this claim. She said at [46] of her statement that she was told she would have to lodge a P902 form in order to have a better ergonomic set up at her desk. In saying that she did not believe she had lodged one in the past, she admitted that she was aware that her managers or supervisors had lodged P902 forms in relation to the claims that were the subject of the complying agreements. There was no P902 form signed by either Ms Scott or any supervisor/manager that claimed that the nature and conditions of working for the police service had injured Ms Scott’s neck, lower back, shoulders, right finger and/or left ankle.
Contemporaneous evidence of histories given to medical practitioners is also usually strong probative evidence, but that evidence is also lacking. Mr Hickey referred to one entry from Ms Scott’s GP, Dr Chua, and otherwise relied on Ms Hough, Ms Scott’s chiropractor.
Ms Hough’s evidence is available, as the practice in the Commission is, to allow the evidence and ascribe to it the weight it deserved. However, it is significant that her report of 24 February 2022 was addressed “To whom it may concern,” and that she had been the “referring physician” in obtaining the thoracic and pelvic X-ray of 15 August 2019. There is no evidence that Ms Scott’s visits to Ms Hough were as part of a treatment regime following a referral by a medical practitioner. It seems that Ms Scott chose to frequent the Chiropractic Centre of her own volition and that the treatments she had were for the purposes of easing her everyday aches and pains. Further, it was not suggested that Ms Scott’s visits were for the purposes of a workers compensation claim- indeed the opposite is true. Ms Hough noted that Ms Scott was employed by the police service, and that Ms Scott was a Detective, but indicated that the treatment was not for the purposes of workers compensation.
Mr Hickey submitted that the chiropractic evidence was “the bulk of the treating evidence.” However I am unable to accept that the chiropractic evidence was evidence of treatment for her alleged injuries at all. Ms Hough attempted to give her opinion as to the cause of Ms Scott’s symptoms by suggesting that that the radiologist had overlooked an obvious feature of the 15 August 2019 X-rays she had ordered.
That theory was doubted by her GP Dr Chua on 6 December 2019, who reviewed the films and advised that a prominent lip on the X-ray was unrelated to Ms Scott’s upper back discomfort which “[Ms Scott] knows is related to posture at work whilst sitting at the computer.” Dr Chua’s phrasing does not suggest that she necessarily agreed with Ms Scott’s self-diagnosis. Further, Dr Goldin, the radiologist who reported on the X-rays, noted there was “no significant pathology demonstrated.” I find the opinions of properly qualified medical practitioners – particularly that of a radiologist – to be preferable, with respect, to that of a chiropractor, whose expertise is limited by her qualifications, Bsc.MChiro.
In any event, Ms Hough’s opinion that the cause of Ms Scott’s “tightness in her spine and muscles” had been revealed by the X-ray, namely the presence of anterior osteophytes in the thoracic region, did not assist Ms Scott. It did not suggest the involvement of Ms Scott’s employment as being causative. Indeed, no injury was claimed for the thoracic spine. Moreover, it would appear that after Ms Scott had undergone her five remedial massages to release the muscle spasm, her treatment with Ms Hough had been successful. Ms Scott took up pilates, walking and yoga to “further” stretch and release her muscles, Ms Hough said. She noted that she had last seen Ms Scott on 30 January 2023, which was confirmed by the treating records. (It would seem that the date of Ms Hough’s testimonial was not “24/02/2022” but probably “2023” in view of her last comment).
What was lacking from Ms Hough’s evidence was any suggestion that the nature and conditions of Ms Scott’s employment had anything to do with her chiropractic treatment.
There were no other clinical notes from the medical practice Ms Scott frequented that referred to Ms Scott’s upper back, or posture at work any further. Indeed, the “Reason for visit” was stated by Dr Chua on 6 December 2019 as:[20]
·        keloid scar;
·        muscle pain, and
·        lifestyle modification counselling.
[20] ARD pages 43-44.
The only entries that were concerned with the issue of workers compensation certificates appeared to be about Ms Scott’s psychological condition. On 29 September 2022 Dr Paul Roth noted a complaint of “chronic neck and head pain due to tension” but stated that it was “related to Post Traumatic Stress Disorder.”
There is thus no contemporaneous support for Ms Scott’s claim.
Mr Hickey accordingly relied heavily on the medico-legal report from Dr Bodel to establish the elements of the claim. Dr Bodel in his report of 19 October 2023 related that Ms Scott had been with the Police Force between 1997 and 15 May 2022. He noted that she had ceased work with a “primary diagnosis” of Post Traumatic Stress Disorder, and he recorded that Ms Scott’s career had covered a number of regions in NSW, as well as stations in Sydney. He noted that the claim he was asked to advise about concerned neck, bilateral shoulders and right index finger injuries, and injuries to the lower back, bilateral shoulders and right ankle.
He stated that Ms Scott had developed neck and bilateral shoulder girdle pain and pain in the right index finger “as a result of the nature and conditions of her work between November 1997 and 5 May 2022.” He referred to “the top half of page two” which he said contained the assertions as to the aspects of Ms Scott’s role which put her “at risk of injury to these areas.”
That reference was to his letter of instructions, which had also been lodged.[21] Dr Bodel also referred to that letter with regard to Ms Scott’s experiences during her career, saying “you also indicate...” The content of the letter of instructions confirmed Ms Scott’s statement, and included the somewhat more colourful language that Dr Bodel repeated about her “rolling, wrestling, bending, twisting, lifting, holding, falling and high-impact events over the years as a police officer,” and that she would “fall into things, onto things, over things and through things”.
[21] ARD page 38.
Dr Bodel noted that Ms Scott had developed symptoms in her neck, shoulders and right index finger “over time.” Dr Bodel noted that his “letter of instruction” said that the neck pain became “chronic” in 2020.
The symptoms in the lower back, both hips and the right ankle Bodel said were “due to the nature and conditions of her work in general…” However, Dr Bodel said that Ms Scott was able to remember rolling her right ankle “when working in Glebe in 1999”, and that a P902 was filled out for that injury.
Dr Bodel noted the history of Ms Scott’s difficulty in foot pursuits, climbing over fences while wearing her appointments belt and getting in and out of the police vehicle because of the belt. He said, (presumably quoting from his letter of instructions):[22]
“…. She began to develop ‘sciatic pain on and off for many years but the pain became chronic in about 2020’.” (As written).
[22] ARD page 72.
Dr Bodel then said:
“She attended her GP, Dr Paul Roth, and has had chiropractic treatment. It appears that no specific investigation has been undertaken to determine the abnormality in this circumstance.”
The first sentence of that statement, with respect, was not entirely accurate. As noted, Ms Scott attended Dr Roth complaining of “neck and head pain,” which Dr Roth stated were “related to Post Traumatic Stress Disorder.” In as much as Dr Bodel’s statement might have been seen as an indication that Ms Scott sought treatment for the subject injuries from Dr Roth, and in as much as it might also been seen as an indication that Dr Roth authorised chiropractic treatment, both inferences are without factual basis.
It is common ground that no specific investigation had been undertaken at the time of
Dr Bodel’s report.
Dr Bodel also said:[23]
“I note the local doctor’s continuation notes confirming her physical and psychological complaints relating to work…”
[23] ARD page 74.
Again, that comment was not entirely correct. Such clinical notes as were lodged only mentioned a complaint about the upper back on the one occasion, 6 December 2019, as noted above. There was no mention in any of the local doctors’ notes of any complaint about the injuries Dr Bodel was concerned with, namely, “neck, shoulders and right index finger” and “lower back, both hips and the right ankle.”
Dr Bodel also noted that Ms Scott had regular massage and other treatments at the Dubbo Chiropractic Centre. He examined the thoracic spine X-rays of 15 August 2019 and noted that they showed “normal thoracic alignment with a slight loss of height…” The X-ray of the pelvis showed no abnormality, he said.
Dr Bodel referred to the report of Dr Scovell of 11 July 2023 and commented that Dr Scovell had “identified an internal derangement in the region of the right knee, the left knee and a lateral ligament injury to the ankle.” He did not, it would seem, realise that Dr Scovell’s report was concerned only with the injuries which had been the subject of the complying agreements (save the psychological injury).
Although Dr Bodel was asked to supply “a complete history” he restricted his advice to very general terms, as reproduced above. He said that Ms Scott sustained injuries to her neck, shoulders and right index finger, her back both hips and her right ankle”, but said no more than that the injuries were “as a result of the nature and conditions of her work in general in the NSW Police Force.”
Dr Bodel agreed with a question as to whether Ms Scott’s employment had been a substantial contributing factor to the “diagnosed injuries.”[24] It was suggested that Dr Bodel had applied the wrong test, as his diagnosis was assumed to be that Ms Scott was suffering from a disease injury as defined in s 4b of the 1987 Act, and that therefore the appropriate test was whether employment had been the main contributing factor, and not a substantial contributing factor.
[24] ARD page 75.
There are two problems with that submission, with respect. Firstly, Ms Scott was claiming injuries allegedly received whilst she was a police officer. Accordingly she obtains the benefit of Schedule 6, Pt 19H clause 25 of the 1987 Act, which provides that the 2012 amendments do not apply, with the effect that the appropriate causation test remains that of whether employment was a substantial contributing factor. I note that this point was not addressed by either counsel, and I grant liberty for the parties to approach if argument is sought on this point.
Secondly, the assumption that Dr Bodel’s diagnosis was that Ms Scott was suffering a disease injury is not correct. Dr Bodel made no diagnosis. He was asked for one in the following exchange:[25]
“2. Your findings on examination and opinion as to diagnosis.
The clinical findings are recorded in the Examination section.”
[25] ARD page 75.
He did not answer the question, as can be seen, and thus his medico-legal opinion was only that the injuries referred to him had all been caused “as a result of the nature and conditions of her work in general in the NSW Police Force,” as noted above.
In State of New South Wales (Sydney Local Health District) v Edwards[26] DP Elizabeth Wood said at [136]:
“The appellant further submits that the term “nature and conditions” is not a term adopted in the workers compensation legislation and submits that the use of the term “is likely to lead to error”, citing Kevric[27]. In Kevric, Roche DP observed that:
‘Both the judges of the former Compensation Court of NSW and the Presidential members of the Commission have criticised the use of the term ‘nature and conditions’ without the provision of proper particulars. ... It is a meaningless expression that should not be used. A claim that alleges an injury as a result of repetitive use over time, or as a result of an aggravation of a disease, should clearly state that fact and properly identify the alleged cause of the claimed injury’.”
[26] [2024] NSWPICDP 83.
[27] Willoughby City Council v Kevric [2009] NSWWCCPD 140.
In Edwards DP Wood found that proper particulars had been given. In Kevric, DP Roche found that they had not, and thus each case depends on its facts.
In the present case Ms Scott has pleaded that she:[28]
“… sustained injuries to her cervical spine, bilateral shoulders, lumbar spine and right ankle arising from the heavy and repetitive nature and conditions of her employment…”
[28] ARD form at “injury details.”
Whilst Ms Scott alleged that she suffered her injuries on a deemed date of 15 May 2022, there is no expert evidence that confirms that allegation.
Dr Bentivoglio took a somewhat more precise history in his report of 18 June 2024. He recorded that Ms Scott “started to experience symptoms in her neck and shoulders around 2016” as a result of doing “light clerical duties (desk work),” and that her back symptoms were also experienced in 2016.
Dr Bentivoglio, after examining Ms Scott, repeated that he was advised that Ms Scott’s neck, back and shoulder symptoms “developed as a result of her doing clerical type work activities…” He noted that there had been no investigations to determine whether she had any disability “apart from normal ageing type degenerative changes that could possibly relate to her employment.”
In his summary, he repeated that “she felt that her symptoms came on as a result of doing clerical type desk duties.” He did not consider that the nature and conditions of employment were the cause of any of her symptoms. As to diagnosis, Dr Bentivoglio said:[29]
“In the absence of any investigations and was no specific injury to her injured areas, I am unable to give an appropriate diagnosis for her neck, back, shoulders or right ankle.”
[29] Reply page 18.
Mr Perry made some submissions based on the assumption that Ms Scott, by failing to address Dr Bentivoglio’s history that she first experience symptoms in 2016, had thereby agreed with that history. This was based on Dr Bentivoglio’s introduction that he dictated his report back to Ms Scott up to the point of diagnosis and opinion, and had invited her to make any corrections.
This submission needs to be considered in the light of Ms Scott’s account of the consultation, where she described Dr Bentivoglio as “an awful Doctor - obnoxious and rude.” Ms Scott alleged that Dr Bentivoglio originally discussed her previous settled physical injuries and that when she enquired about that, he became “visibly angry and started flicking through the file…huffing and puffing…”[30]
[30] ARD page 6.

Ms Scott denied that she had told Dr Bentivoglio that her symptoms had come on “as a result of doing clerical type desk duties.” She said that Dr Bentivoglio seem to have misunderstood what she was trying to say to him. She said at [40] of her statement:
“… I believe it is the heavy and repetitive duties that I undertook through my 25+ year Police career that had caused my symptoms, both in General Duties, undertaking covert surveillance and working as a Detective. I told him that.”
Ms Scott argued that she had not sustained any injuries prior to her employment with the respondent, that she had not sustained any of her pleaded injuries outside her employment, and that there was no explanation for her symptoms besides her work with the NSW Police.
She stated that Dr Bentivoglio was “completely inaccurate” when he described her work as “light clerical duties,” which she said were his words and not hers.
It follows that Ms Scott had fixed views when she made her statement and that she is a person who is not afraid to express her opinion. That attitude was probably the result of the many years of service to the community whilst working for the police force and I accept that there may well have been a personality clash at the time she saw Dr Bentivoglio. I have some reservations as to whether Ms Scott took on board Dr Bentivoglio’s invitation to comment on his dictated comments to her. Mr Perry submitted that it was Dr Bentivoglio’s evidence that gave the earliest indication of when some of Ms Scott’s symptoms were first experienced in 2016, and that her failure to respond to Dr Bentivoglio’s dictation meant that she accepted that history. Having regard to the totality of the evidence about this consultation, I decline to draw that inference.
Ms Scott stated however, at [18] of her statement that:
“18. My desk was not ergonomically set up or assessed at any point. I began to observe pain in my neck and shoulders whilst undertaking this work.
9. My symptoms in my neck and shoulders came on over time, with my neck pain becoming chronic in around 2020.”
I appreciate that Ms Scott was sincere in her statement, and that she has concluded that her employment was responsible for the subject injuries. I note her comments about the police culture – that if you complained when you hurt yourself as a “female in the cops in the 90s” you would be branded a “sook”, and that when she entered the police force you were regarded as “weak, lazy, shonky or useless” if you did complain. However, by her own actions she indicated that she was later prepared to make claims, as evidenced by the Complying Agreements. I note her caveat that others had filled out her P902 forms, but nonetheless the culture had clearly improved from the point of view of a female in the police force, and I find the lack of any corroborative evidence to be significant, as I have discussed above.
Ms Scott’s failure to report her neck and shoulder symptoms when she alleges she first experienced them whilst doing desk work does not engender confidence that they were then regarded by her as anything more than a nuisance. Her chiropractic treatment between 7 July 2019 and 30 January 2023 together with her pilates, Thai massage and yoga suggest no more on their face than Ms Scott was dealing with everyday aches and pains, as indicated above. This impression is reinforced by the fact that Ms Hough recorded that the chiropractic treatment was not for the purposes of worker’s compensation.
I note in passing that one of the complying agreements tendered related to an injury that occurred on 11 October 2000.[31] It may be that Dr Bodel’s history of a left ankle injury in 1999 for which a P902 had been filled out relates to that event. Ms Scott in her statement referred to an injury to her “right knee” on 11 October 2000[32], but there were apparent typographical errors when Ms Scott also stated that the injury was to the “right knee” but was for “5% loss of efficient use of the left leg at or below the knee..” A perusal of the actual complying agreement demonstrates that the settlement was for “5% efficient loss of use of the right leg at or above the knee.”[33] The description is compatible with an injury to the right ankle, as that generic description, ‘at or above the knee,’ was usually used in practice for any injury to the leg, regardless of its position. In any event, the applicant’s statement at that point was clearly incorrect and displayed an unfortunate inattention to detail. In any event, there is no evidence or opinion about that alleged injury beyond the general allegations of ‘nature and conditions’ and Dr Bodel’s passing comment.
[31] ARD page 88-89.
[32] ARD page 1.
[33] ARD page 89.
In Brown v Lewis[34] Mason P (Santow and McColl JJA agreeing) said:
“….If the plaintiff’s case is left so full of holes that the necessary facts cannot be found or inferred then the relevant part of the claim must fail, because the plaintiff bears the ultimate onus of proof. In some matters there may be a shifting of the evidentiary onus (eg Watts v Rake (citation omitted) but the ultimate persuasive onus remains with the plaintiff.”
[34] [2006] NSWCA 87.
For the above reasons, I am not satisfied that the applicant has satisfied her onus. She certainly is convinced that her employment was the cause of her present problems, but she has not presented any expert evidence to confirm her assertions. No diagnosis has been given and there is no contemporaneous support over her 25 years employment that would indicate that her undoubtedly physical activities had been the cause of her alleged injuries.

Notice and claim

The above reasons render consideration of these issues moot, as the applicant has failed on the more fundamental problem of the onus of proof. However, as leave was given for further submissions to be made, it is appropriate to discuss them, briefly.
The first issue is as to whether I have made a determination during the hearing that the issue of notice and claim pursuant to this ss 254 and 261 of the 1998 Act had properly been raised. As I have indicated above, I did so find. Nonetheless Mr Hickey has revisited that decision and I accordingly propose to treat his submissions in that regard as an application for reconsideration.
Mr Hickey recounted the facts of this case and referred to Woolworths Limited v Meak[35] and the dicta of President Judge Keating whereby it was necessary to “precisely identify, in plain language, in the body of the dispute notice the issues in dispute and the reasons for the dispute.” I was satisfied, as the transcript indicates, that the inclusion of the phrase in the dispute notice of 10^th December 24 , “EML refers to and continues to rely on the section 78 notice dated 16 August 2024” was sufficiently plain to raise the issues which had been described in that earlier notice, namely:
“We do not agree that you are entitled to compensation because you failed to give notice of your claimed injury and make a claim for compensation within the time prescribed as required by sections 254 and 261 of the 1998 Act.”
[35] [2011] NSWWCCPD 13.
Further, are the requirement in Meake to identify the sections relied on were thereby complied with and the terms of the dispute was such that no further evidence than that which had already been lodged needed to be attached.
Mr Hickey submitted that “any fair reading” of the December dispute notice would not have included these issues. It was submitted that the December review had been issued after the applicant’s statement had been lodged. Mr Hickey submitted that the applicant did not seek to adduce any further evidence because she properly assumed that the December review no longer raised these issues.
I was referred to Mateus v Zodune Pty Ltd[36] and Rinker Group Ltd v Makell[37] as authority for the proposition that in different situations and insurer can be prevented from raising an issue when it had not been specifically raised before.
[36] [2007] NSWWCCPD 22.
[37] [2008] NSWWCCPD 100.
Mr Hickey submitted that the current claim was analogous, but for the reasons I have given the transcript will show that I regarded the issues as being clearly raised.
Mr Hickey then submitted that the severity of Ms Scott’s Post Traumatic Stress Disorder condition (about which there was no evidence before me) was sufficient to excuse
Ms Scott’s compliance with the sections. It was submitted that the failure to give notice was justified because Ms Scott stated she is unaware of any time limit and there was no evidence that she was so aware in relation to her prior claims.
Mr Hickey kindly set out the relevant provisions of both s 254 and s 261 and submitted that, in view of the fact that the deemed date of injury was 15 May 2022, the claim had been made within three years as the first notice had been provided on
19 January 2024 in his instructing solicitors letter of that date.
In response Mr Perry firstly objected to the re-agitation of the already concluded dispute as to whether the issue could be raised or not. In answer to the submissions made by Mr Hickey regarding the facts, he submitted that, crucially, Mr Hickey and not addressed Ms Scott’s comment that she did not wish to waste time doing paperwork for such continual problems. She said:
“55. I admit I have made a mistake and may have been ignorant by not reporting my injuries. But I also didn’t want to waste time doing paperwork for injuries that weren’t caused by one specific incident, but were continually causing me problems. I just tried to focus on my job and self-manage my symptoms. “
As the applicant has not satisfied her onus, the resolution of this argument is otiose. Suffice it to say that Ms Scott’s reasons were unconvincing, given her background as a police officer.
Mr Hickey has asked for an uplift should he be successful. He has not been, but I indicate that I would have ordered an uplift for the complexity of this case of 25%, applicable to both parties, had he been successful.

[2025] NSWPIC 110

25 March 2025