Shanahan v Marsh Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Shanahan v Marsh Pty Ltd [2025] NSWPIC 69
APPLICANT:	Bernice Shanahan
RESPONDENT:	Marsh Pty Ltd
MEMBER:	John Turner
DATE OF DECISION:	4 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; application for the costs of treatment expenses pursuant to section 60; applicant suffered a fractured tooth; the fractured tooth was an abutment for a pre-existing dental bridge; not disputed that the applicant suffered injury in the course of her employment; disputed that employment was a substantial contributing factor to the injury as required by section 9A and disputed that the claimed treatment is reasonably necessary as a result of an injury; citied Mercer v ANZ Banking Corporation, Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited, Dayton v Coles Supermarkets Pty Ltd, McMahon v Lagana, Rootsey v Tiger Nominees Pty Ltd, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service, Diab v NRMA Limited, and Murphy v Allity Management Services Pty Ltd; Held – that the applicant sustained injury in the course of her employment on 1 August 2024 and that the applicant’s employment was a substantial contributing factor to the injury; that the treatment proposed by the Medical Assessor (MA) is reasonably necessary as required by section 60; the respondent is to pay pursuant to section 60 the applicant’s reasonably necessary treatment expenses including the treatment proposed by the MA in the treatment plan dated 22 August 2024.
DETERMINATIONS MADE:	The Commission determines: 1. That the applicant sustained injury in the course of her employment on 1 August 2024 and that the applicant’s employment was a substantial contributing factor to the injury. 2. That the treatment proposed by Dr Lazaris is, as required by s 60 of the Workers Compensation Act 1987, reasonably necessary as a result of the injury. 3. The respondent is to pay pursuant to s 60 of the Workers Compensation Act 1987 the applicant’s reasonably necessary treatment expenses including the treatment proposed by Dr Lazaris in the treatment plan dated 22 August 2024 which appears at pages 160-161 of the attachments to the Application to Resolve a Dispute. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Ms Bernice Shanahan, the applicant, whilst in the course for her employment with Marsh Pty Limited, the respondent, attended a work function on 1 August 2024. During the function the applicant took a bite of what she describes as an “extremely hard piece of bread (‘grissini’ – Italian bread)” at which time she “felt a crack like as if a tooth or my dental bridge had broken.”[1]
[1] ARD p. 2.
On 2 August 2024 the applicant consulted her dentist, Dr Angelo Lazaris, for an emergency appointment. Dr Lazaris conducted an intra-oral examination which confirmed that a fixed dental bridge from teeth 13-23 had dislodged from the abutment tooth 23 and was connected only to the contra-lateral abutment tooth 13.[2] The bridge was removed and was found to have the coronal section of tooth 23 embedded and still bonded to the bridge and the radicular section of the tooth still in situ and fractured horizontally at the cervical level.
[2] ARD p. 25.
It is not disputed that the applicant sustained a fracture of tooth 23 whilst in the course of her employment on 1 August 2024.
The applicant claims medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (1987 Act) for the costs of treatment consultations, X-ray and treatment by Dr Lazaris.
The applicant has attached to the documents served in support of the Application to Resolve a Dispute (ARD) a tax invoice for the costs of X-rays and a clinical consultation with
Dr Lazaris in the amount of $145 as well as a quotation for the costs of the planned treatment for a total amount of $73,165.
The treatment proposed by Dr Lazaris required the placement of osseointegrated dental implant fixtures to support a prosthesis.
I understand from the conciliation conference / arbitration hearing that the applicant has now had the treatment proposed by Dr Lazaris.

ISSUES FOR DETERMINATION

The parties agree that the following issues remained in dispute:
(a) whether the applicant’s employment was a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act, and
(b) whether the claimed treatment is reasonably necessary as a result of an injury pursuant to s 60 of the 1987 Act.
At the commencement of the arbitration hearing the respondent advised that it was not disputed that the applicant sustained an injury in the form of a fractured tooth and that it was also not disputed that the injury was sustained in the course of the applicant’s employment with the respondent.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
6 February 2025. Mr Graham Barter, counsel, instructed by Law partners, appeared for the applicant, who was present. Mr Paul Barnes, counsel, appeared for the respondent, instructed by Hicksons Lawyers. The proceedings were conducted in-person. 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)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to an Application to Lodge Additional Documents (ALAD) lodged on behalf of the applicant dated 13 December 2024, and
(d)    documents attached to an ALAD lodged on behalf of the respondent dated
3 February 2025.
The respondent objected to a report by Dr John Michalopoulos, dental surgeon, dated
31 October 2024 being admitted into evidence. The report was included in the attachments to the ARD at pages 21 to 24. Dr Michalopoulos had not been involved in the treatment of the applicant.
The report of Dr Michalopoulos was objected to by the respondent on the basis that
Dr Michalopoulos does not in his report acknowledge that he has read the PIC 4 Procedural Direction for Expert Witness Evidence and agree to be bound by the Direction.
Commission “Procedural Direction PIC 4 – Expert Witness Evidence” (PIC 4) concerns the provision of expert evidence and states:
“1.    This Procedural Direction concerns the provision of expert evidence in the form of:
(a)   an expert report prepared for a party to proceedings, or
(b)   an expert witness proposed to be called to give evidence in the proceedings.”
PIC 4 provides at [11(b)] that an expert’s written report should include an acknowledgment that the expert has read PIC 4 and agrees to be bound by it.
The President or a Member before whom a matter is listed may excuse a party from complying with any aspect of PIC 4 (at [3]).
Section 43 of the Personal Injury Commission Act 2020 (PIC Act) relevantly provides that proceedings “before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits”, that the “Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits” and that the “Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
At the time of the arbitration hearing, I admitted the subject report into evidence stating that the lack of the acknowledgment would be considered in respect to the weight to be given to the report and the opinions contained therein. I indicated that I would provide further reasons for the decision in this written decision.
It would have been prudent for the acknowledgment to be provided as the report is a report from a non-treating expert witness. However, the report appears to have been obtained from Dr Michalopoulos, as a colleague of Dr Lazaris, all be it at a different practice, rather than by way of the usual retention of an expert witness which to some degree explains the failure to provide the acknowledgement. With this in mind as well as s 43 of the PIC Act in respect to how proceedings are to be conducted before the Commission I am of the view that it is appropriate to excuse the non-compliance with PIC 4 and for the report to be admitted into evidence however the lack of the acknowledgement does need to be considered in respect to the weight to be given to the report.

EVIDENCE

Oral evidence

No oral evidence was adduced.

FINDINGS AND REASONS

Substantial contributing factor

Section 9A of the 1987 Act states:
“(1)    No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note—
In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)     The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f)the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a)     the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)     the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)     This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
I will briefly summarise the key evidence in respect to the issue of “substantial contributing factor”.
It is the evidence of Jiawen Tan that she attended the event on 1 August 2024 with a former work colleague, Andrew Burgess, and that she had no direct relationship with the applicant prior to the event. It is the evidence of Ms Tan that they bit into the same type of breadstick that the applicant later had and that Ms Tan and Mr Burgess both “acknowledged that the breadsticks were extremely hard to bite and jokingly mentioned that someone could break a tooth on them.”[3]
[3] Applicant’s ALAD p. 25.
It is the evidence of Mr Burgess that he had also bitten into one of the breadsticks and it was extremely hard in texture and difficult to bite.[4]
[4] Applicant’s ALAD p. 28.
The respondent obtained expert forensic reports from Dr Georgios Sotiropoulos, dental surgeon, dated 7 November 2024 and 3 February 2025.
Dr Sotiropoulos in his report of 7 November 2024 records a history that the applicant suffered a fall onto her face at approximately 9 years of age which caused fractures to her upper and lower incisor teeth. A series of extractions, removable partial dentures and fixed bridge solutions were reported since then.[5]
[5] Reply p. 12.
On clinical examination Dr Sotiropoulos relevantly noted a clinical appearance consistent with a history of gingivitis/periodontal disease and consistent with and supported by dental records with historic signs/symptoms and formal diagnosis of bruxism. The doctor noted occlusal wear and fractures of some posterior teeth especially 27 and 36 consistent with a history of bruxism. Dr Sotiropoulos also observed that the upper and lower bridges were deliberately designed to reduce occlusal loads borne by the limited abutments.[6]
[6] Reply pp. 13-14.
Dr Sotiropoulos diagnosed inevitable failure of the bridge (fracture of abutment at 23 and possible post/core debond/root fracture 13) due to wear, bruxism.[7]
[7] Reply p. 14.
In the opinion of Dr Sotiropoulos, the six unit fixed bridge which was inserted in 2016 resulted in the loss of one of three pre-existing abutments resulting in a 33% loss of teeth supporting the bridge. In the opinion of Dr Sotiropoulos, the serviceability was “likely” further challenged by bruxism. This increased the resultant functional and parafunctional stresses being required to be borne by the remaining two abutment teeth (13 and 23) one of which was further compromised in its value as an abutment tooth due to its post/core and endodontic history.[8]
[8] Reply p. 14.
In the opinion of Dr Sotiropoulos, it is “implausible that a bread stick may provide the requisite force to fracture an otherwise well supported and otherwise sound abutment tooth/bridge.” It may have in the doctor’s opinion “coincided with or precipitated an otherwise inevitable and imminent failure” or in lay terms been “the straw that broke the camel’s back”. Dr Sotiropoulos did not consider the subject event on 1 August 2024 to be a “substantial contributing factor”.[9] In the opinion of Dr Sotiropoulos the bridge had “achieved quite reasonable serviceability in excess of 8 years” given the childhood history of injury, reduction of support over time and the concurrent and unmanaged bruxism.[10]
[9] Reply p. 15.
[10] Reply p. 16.

The treating dental surgeon, Dr Lazaris, provided reports to the applicant dated
9 September 2024 and 22 November 2024.
In the opinion of Dr Lazaris, the applicant’s clinical presentation at the time of an emergency appointment on 2 August 2024 was consistent with “sudden, traumatic fracture of the abutment tooth 23 with a single force exceeding the strength of the tooth.” In the opinion of Dr Lazaris, the fracture rendered tooth 23 unsuitable as a bridge abutment as this significantly increased the risk of further damage to both abutment teeth (13 and 23), as well as the surrounding bone.[11]
[11] ARD p. 26.
In the opinion of Dr Lazaris, the applicant’s teeth were in excellent health prior to the subject incident on 1 August 2024 observing that the applicant regularly attended for routine examinations and cleans, and that the applicant had not required any active dental intervention other than elective aesthetic restorative treatment to replace aesthetically compromised bridgework in 2016. In the opinion of Dr Lazaris, the proposed treatment plan would not have been required if the specific injury on 1 August 2024 had not occurred, with there being no correlation between the applicant’s “stage of life” and the “traumatic injury” sustained.[12]
[12] ARD p. 26.
Dr Lazaris in his supplementary report dated 22 November 2024 records that on
[13] Applicant’s Application to Lodge Additional Documents (ALAD) p. 5.
[14] Applicant’s ALAD p. 6.
9 August 2016 a provisional resin bridge was temporarily cemented for an extended timeframe to allow for various adjunctive procedures (soft tissue grafting and repositioning surgery) to be completed before the final ceramic bridge was bonded in 2017.[13] It is the evidence of Dr Lazaris that prior to the subject event on 1 August 2024 the bridge had been successfully functioning for over seven years with “no evidence of degradation or imminent failure.”[14]
In the opinion of Dr Lazaris, the applicant was in excellent dental health and functional stability prior to the subject incident on 1 August 2024, and as a consequence of the subject work incident had fractured tooth 23.[15]
[15] Applicant’s ALAD p. 7.
Dr Lazaris concedes that chronic marginal gingivitis was present however observed that the condition is a reversible inflammatory condition which is “ubiquitous throughout the population”. The doctor also observed that in an eight year history the clinicians had never detected or documented periodontal disease.[16]
[16] Applicant’s ALAD p. 9.
It is Dr Lazaris’ evidence that the bridge in place at the time of the subject incident on
[17] Applicant’s ALAD p. 10.
1 August 2024 had an anterior open bite “deliberately incorporated into the bridge design to eliminate any occlusal contact in habitual intercuspal position and excursive movements as part of a dynamically protected occlusal scheme that by design, eliminates any and all occlusal loading in function and parafunction.” In Dr Lazaris’ evidence it was physically impossible for the anterior protheses to make contact on protrusive movements.[17]
In Dr Lazaris’ opinion the “obvious wear facets of these teeth betray the dynamic occlusal trajectories of the mandible and the posterior teeth (and the associated disclusion of the anterior teeth) incontrovertibly.”[18] The doctor provided images in support of his opinion.
[18] Applicant’s ALAD p. 11.
In the opinion of Dr Lazaris, the fact that Dr Sotiropoulos identified wear and fractures of some posterior teeth refutes the conclusion that the applicant’s bruxism played any role in the failure of the bridge.[19]
[19] Applicant’s ALAD p. 13.
In the opinion of Dr Lazaris whilst one of the two abutment teeth (tooth 13) was compromised as an abutment having been endodontically treated with post and core, this is a moot point as that tooth and the bridge attachment to it was intact with there being no plausible association between the status of tooth 13 and the failure of the bridge.[20]
[20] Applicant’s ALAD p. 14.

The applicant’s clinical dental notes relevantly record:
(a)    On 5 May 2016 recommended removal of existing bridgework with new design and repair abutments as necessary.[21]
(b)    On 13 May 2016 that upper and lower bridges were removed and temporary bridges fitted.[22]
(c)    On 16 August 2018 that the temporary bridge had fallen out. The applicant wished to start getting the bridge “sorted”.[23]
(d)    On 9 April 2021 that the applicant aware of clenching her teeth, she was waking with a sore jaw. The applicant was advised in respect to a night guard, botox, breathing and meditation techniques to reduce stress.[24]
(e)    On 2 December 2021 that the applicant had become aware that she had been clenching when concentrating.[25]
(f)    On 29 September 2023 the applicant advised that she had been clenching as she had two pinched nerves in her neck. The applicant had attended physiotherapy and osteopathy. The applicant was advised that clenching could lead to neck pain and that neck pain could lead to clenching too but could just be an additive. The applicant was advised to reduce stress and that nightguards could be made to protect her teeth but would not stop the clenching. The applicant did not want to proceed with nightguards today.[26]
(g)    On 3 May 2024 the advice regarding clenching was reinforced. The applicant was again advised that nightguards could be made to protect her teeth but would not stop the clenching. On that day the applicant did not wish to proceed with nightguards.[27]
[21] ARD p. 41.
[22] ARD p. 41.
[23] ARD p. 62.
[24] ARD p. 57.
[25] ARD p. 56.
[26] ARD p. 54.
[27] ARD p. 53.

I now turn to the relevant law in respect to the issue of “substantial contributing factor”.
Whether employment is a substantial contributing factor to an injury is a question of fact and is a matter of impression and degree[28] to be decided after a consideration of all the evidence.
[28] Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153 at [29]; McMahon v Lagana [2004] NSWCA 164 at [32].
Section 9A requires that employment must be a substantial contributing factor to the event causing the injury or the receipt of the injury.[29]
[29] Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725.
Employment must be “a” substantial contributing factor to the injury, not “the” substantial contributing factor. As Mason P said in Mercer v ANZ Banking Corporation [2000] NSWCA 138; (2000) 20 NSWCCR 70 (Mercer) at [16] “[t]here may be more than one substantial contributing factor to a single injury.” In Mercer the Court of Appeal also excluded the relevance of a predisposition or susceptibility to injury, Mason P saying at [27]:
“Section 9A does not require that the employment must be ‘the’ substantial contributing cause, nor does it attempt to exclude predisposition or susceptibility to a particular condition (cf University of Tasmania v Cane (1994) 4 Tas R 156).”
In Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324 (Badawi) Allsop P, Beazley JA and McColl JA in a joint decision said at [48]:
“The following propositions distilled from Mercer in respect of the operation of s 9A have been accepted as correct and can be taken to be uncontroversial:
(1) The strength of the causal linkage between the employment concerned and the injury is the question in issue: Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 at [106] 299 per McColl JA (Mason P and Beazley JA agreeing).
(2) The fact of the injury arising out or in the course of employment is relevant but not determinative of itself: Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344 at [36] per Santow JA (Beazley and Ipp JJA agreeing).
(3) Both s 4 and s 9A require independent satisfaction: McMahon v Lagana (t/as The Vessel ‘Nimble II’) [2004] NSWCA 164; 4 DDCR 348 at [25] 355 and [33] 356 per Hodgson JA (Santow JA and Stein AJA agreeing) and Larson v Commissioner of Police [2004] NSWCA 126; 3 DDCR 365 at [38] 378 per Tobias JA (Mason P and Santow JA agreeing).
(4) Section 9A requires that the employment concerned be ‘a substantial contributing factor to the injury’. The use of the indefinite article admits of the possibility of other and possibly non-employment related substantial contributing factors: Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 at [49] 216 per Spigelman CJ (Hodgson and Bryson JJA agreeing); and Dayton at [22] per Giles JA.
(5) Although the strength of the linkage between the employment and injury is the question in issue, the determination is an evaluative one, leaving a broad area for the personal judgment of the trial judge: Hevi Lift at [105]-[106] 299 per McColl JA (Mason P and Beazley JA agreeing).
(6) Being an evaluative matter involving questions of impression and degree, a finding as to relative contributing factors is a finding of fact: Haider v J P Morgan Holdings Aust Ltd [2007] NSWCA 158; 4 DDCR 634 at [56] 646 per Basten JA (Giles and McColl JJA agreeing); WorkCover Authority of NSW v Walsh [2004] NSWCA 186 at [99]; McMahon v Lagana at [32] per Hodgson JA (Santow JA and Stein AJA agreeing), Dayton at [22] per Giles JA and Murray v Shillingsworth [2006] NSWCA 367 at [65] per Einstein J.
(7) The phrase ‘employment concerned’ in s 9A(1) bears the same meaning as ‘employment’ in the phrase ‘arising out of or in the course of employment’: Mercer at [13] 745 and Federal Broom at 632-633. We agree.”
At [82] they went on to state in respect to “substantial”:
“We would endorse the separate comments of Meagher JA and Davies AJA in Dayton v Coles Supermarket. As Meagher JA said, something which is minor is not substantial, or, as Davies AJA said, ‘substantial’ as it appears in s 9A means ‘in a manner that is real and of substance’ and does not apply where, as a matter of practical reality, the contribution of the employment to the injury was of, or had, ‘little substance’. We agree with his Honour that it is not useful to search for or use other terms, such as ‘large’, or ‘weighty’, or by way of further example, other concepts such as ‘predominant’. We consider that to do so may carry the vice of introducing concepts with different nuances from the words used by the legislature and which would take the meaning of the word beyond that needed to fulfil the purpose of the provision in its legislative context. In this respect, we prefer the views of Davies AJA in Dayton to the views in the extempore judgment in Bulga, which did not refer to Dayton and to the views of Mason P in Mercer. The words of the statute should be adhered to: ‘a substantial contributing factor’. The ‘proper link’ in the legislative context was a causal connection expressed by the words ‘a substantial contributing factor’, meaning one that was real and of substance. Given the conflict in the existing authority (Mercer, Bulga and Dayton), we think it important to clarify this issue.” [Emphasis added]
The matters set out in s 9A(2) must be taken into account to the extent that they are relevant to the case. A decision maker however is not confined to the matters set out in s 9A(2) and may take into account other matters relevant to whether employment was a substantial contributing factor to the injury.[30]

I now turn to evaluating the evidence

[30] Badawi.

(a) “the time and place of injury”

It is not in dispute that the applicant was in the course of her employment on 1 August 2024 at the time that the injury was sustained. The applicant at the time was attending a work function.
This factor in my view does not weigh against the applicant.

(b) “the nature of the work performed and the particular tasks of that work”

The applicant was attending a work function at the time that the injury was sustained. The purpose of the function appears to have been to socialise and presumably network with clients and/or prospective clients. Food and drinks were provided as part of the event including the Italian bread. In my view the applicant was performing work duties at the time that she bit into the Italian bread. Her work at the time being to socialise and food and drink having been provide as part of the social function.
In my view this factor does not weigh against the applicant.

(c) “the duration of the employment”

This factor is not relevant in this case.

(d) “the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment”

It is the respondent’s submission that I should accept the opinion of Dr Sotiropoulos who diagnosed inevitable failure of the bridge (fracture of abutment at 23 and possible post/core debond/root fracture 13) due to wear, bruxism. In the opinion of Dr Sotiropoulos, it is “implausible that a bread stick may provide the requisite force to fracture an otherwise well supported and otherwise sound abutment tooth/bridge.” It may have in the doctor’s opinion “coincided with or precipitated an otherwise inevitable and imminent failure” or in lay terms been “the straw that broke the camel’s back”. In the opinion of Dr Sotiropoulos the bridge had “achieved quite reasonable serviceability in excess of 8 years” given the childhood history of injury, reduction of support over time and the concurrent and unmanaged bruxism.
The applicant submits that I should accept the opinion of Dr Lazaris.
In the opinion of Dr Lazaris, the applicant suffered a “sudden, traumatic fracture of the abutment tooth 23 with a single force exceeding the strength of the tooth.” In the opinion of Dr Lazaris, the applicant’s teeth were in excellent health prior to the subject incident on
1 August 2024. In the opinion of Dr Lazaris, the proposed treatment plan would not have been required if the specific injury on 1 August 2024 had not occurred, with there being no correlation between the applicant’s “stage of life” and the “traumatic injury” sustained.
I prefer the opinion of Dr Lazaris for the following reasons.
Dr Sotiropoulos identifies in essence four factors that lead to the failure of the dental bridge being:
(a)    the loss of one of three pre-existing abutments in or around 2016 resulting in a 33% loss of teeth supporting the bridge;
(b)    bruxism;
(c)    gingivitis/periodontal disease, and
(d)    the age of the dental bridge.
Whilst Dr Sotiropoulos identifies the prior loss of one of the abutment teeth as a cause for the failure of the bridge Dr Sotiropoulos noted that the bridge had been deliberately designed to reduce the occlusal loads borne by the limited abutments, an observation which is confirmed by Dr Lazaris. It is the evidence of Dr Lazaris, the applicant’s treating dental surgeon, that the abutments were sufficient, and that the applicant was in good dental health prior to the incident on 1 August 2024.
It is also Dr Lazaris’ evidence that prior to the incident on 1 August 2024 the dental bridge was functioning with “no evidence of degradation or imminent failure.” It needs to be remembered that the injury is a fracture of tooth 23 and that it is the fracture that caused the bridge to fail. Dr Lazaris describes the fracture as being consistent with a “sudden, traumatic fracture of the abutment tooth 23 with a single force exceeding the strength of the tooth.” I accept the diagnosis of Dr Lazaris observing that it was Dr Lazaris who had the opportunity to examine and who treated the applicant on 2 August 2024 following the day following that on which the injury was sustained.
I also accept the evidence of Dr Lazaris that the bridge was functioning well with no evidence of degradation or imminent failure prior to the 1 August 2024. As the applicant’s treating dental surgeon who treated the applicant prior to 1 August 2024, Dr Lazaris is in the best position to provide evidence as to the prior state of the applicant’s dental health and the state of the dental bridge.
Dr Sotiropoulos is of the opinion that it is “implausible that a bread stick may provide the requisite force to fracture an otherwise well supported and otherwise sound abutment tooth/bridge.” However, it is the applicant’s evidence that it was an “extremely hard piece of bread (‘grissini’ – Italian bread)”. The applicant’s evidence in this respect is not challenged and is supported by the evidence of Ms Tan and Mr Burgess. I therefore accept the applicant’s evidence that the bread that she bit into was “extremely hard”.
Whilst the other abutment tooth was compromised as an abutment tooth (tooth 13) due to its post/core endodontic history, this in my view is irrelevant as it is not tooth 13, but rather tooth 23, which suffered the fracture and failed as an abutment.
It is the evidence of Dr Sotiropoulos that the serviceability of the bridge was further challenged by the applicant’s history of bruxism. The applicant’s clinical dental records support a history of bruxism containing entries in respect to clenching on 9 April 2021,
2 December 2021, 29 September 2023 and 3 May 2024 prior to the subject incident on
1 August 2024. Whilst the applicant was offered nightguards to protect her teeth she did not obtain them.
Whilst there is a prior history of bruxism Dr Sotiropoulos only records references to occlusal wear and fractures of posterior teeth especially teeth 27 and 36 consistent with bruxism located remotely from the dental bridge and the subject tooth 23.
It is the evidence of Dr Lazaris that the bridge was designed to “eliminate any occlusal contact in habitual intercuspal position and excursive movements” which eliminated “any and all occlusal loading and parafunction.” In Dr Lazaris’ evidence it was physically impossible for the anterior prosthesis to make contact on protrusive movements.
I do not accept that the applicant’s bruxism negatively impacted upon tooth 23 or the dental bridge. The evidence in my view supports that the bruxism did not affect the bridge and tooth 23 but rather impacted the teeth located posteriorly and remotely from the location of the bridge and tooth 23 and furthermore the design of the bridge eliminated bruxism from impacting on the dental bridge and tooth 23 in particular.
It is the opinion of Dr Sotiropoulos that a history of gingivitis/periodontal disease contributed to the failure of the bridge. The evidence supports that the applicant regularly attended for dental treatment. Whilst the applicant did have gingivitis this does not appear in the clinical records in the dental treatment to have been identified as of any significant concern. It is the evidence of Dr Lazaris, who as the applicant’s treating dental surgeon is familiar with the applicant, that the applicant was in good dental health prior to 1 August 2024. Dr Lazaris also observes that gingivitis is a reversible inflammatory condition and that the clinicians had never detected or documented periodontal disease.
For the above reasons I do not accept that a similar injury would have happened anyway at about the same time or at the same stage of the workers life. In its simplest form it took an “extremely hard” piece of bread to cause the traumatic fracture of tooth 23.
In my view this factor weights in favour of the applicant.

(e) “the worker’s state of health before the injury and the existence of any hereditary factors”

There are no hereditary factors which have been identified.
In respect to the state of the applicant’s dental health, to avoid repetition, I refer to the comments made in respect to (d) above.

(f) “the worker’s lifestyle and his or her activities outside the workplace”

This factor is not relevant in this matter.
Having considered the evidence and for the above reasons I am comfortably satisfied that the causal connection between the subject work incident and the accepted injury to tooth 23 is “real and of substance”. I am therefore comfortably satisfied, and find, that employment was “a substantial contributing factor to the injury”.

TREATMENT

Section 60(1) of the 1987 Act states:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that—
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
Note—
Compensation for domestic assistance is provided for by section 60AA.
The definition of “medical or related treatment” contained within s 59 of the 1987 Act includes “(a) treatment by…a registered dentist, a dental prosthetist…” and “(d) the provision of … artificial members, eyes or teeth and other artificial aids…” The treatment in question therefore falls within the scope of s 60 of the 1987 Act.
Section 60 requires that the treatment is “reasonably necessary” as a result of injury.
Burke CCJ considered the expression “reasonably necessary”, then appearing in s 10 of the Workers Compensation Act 1926 (1926 Act) relating to treatment expenses, in some detail in Rose v Health Commission (NSW) [1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose). His Honour said at [42]:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
The “reasonably necessary” test was also considered in Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; (1997) 14 NSWCCR 233 (Bartolo). In Bartolo, Burke CCJ described the test of “reasonably necessary” as follows:
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
Burke CCJ in Rose went on to state:
“In determining whether a particular regimen is medical treatment and whether it is reasonably necessary that such be afforded to a worker and that such necessity results from injury, it appears to me some general principles can be stated:
1. Prima facie, if the treatment falls within the definition of medical treatment in section 10(2) [the 1926 Act], it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2. However, though falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the party seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
The legal test to be applied when determining whether proposed treatment is reasonably necessary as a result of a workplace injury as required by s 60 of the 1987 Act was considered by Roche DP in Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab) where stated at [86]:
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply.”
In Diab Deputy President Roche cited the decision of Burke CCJ in Rose with approval and stated:
“[88] In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose……namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.

[89] With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
[90] While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”

The fact that pre-existing conditions may have been factors in the need for treatment does not mean that the proposed treatment is not a result of the injury. Roche DP in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 at [58] stated that to establish an entitlement the worker needs to prove that the injury materially contributed to the need for the surgery.
In terms of whether a proposed treatment is reasonably necessary as a result of the work-related injury Roche DP in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy) stated:
“[57] …a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
[58] Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
I now turn to analysis of the evidence in respect to the relevant matters according to the criteria of reasonableness identified by Roche DP in Diab.

(a) the appropriateness of the particular treatment

In the opinion of Dr Lazaris, the treatment claimed is appropriate. In the opinion of
[31] ARD p. 30.
Dr Lazaris, the proposed treatment plan is the only viable option to replicate the applicant’s pre-incident dental condition without resorting to more radical and invasive procedures involving further tooth loss and increased risk of clinical failure.[31]
In the opinion of Dr Lazaris there are no other viable treatment options available that do not involve further tooth loss and increased risk of aesthetic and functional failure.[32]
[32] RD p. 29.
Dr Sotiropoulos does concede that the treatment proposed by Dr Lazaris is accepted and is superior in treating the applicant’s historic edentulism at teeth 11-21-22 and subsequent loss of tooth 12 in 2017 as well as the recent fracture of tooth 23 to that proposed by him which will be discussed below.[33] However, in the opinion of Dr Sotiropoulos, the dental treatment proposed by Dr Lazaris is for a non-compensable condition.
[33] Respondent ALAD p. 5-6.
I do not accept the opinion of Dr Sotiropoulos that the proposed treatment is for a non-compensable condition. The proposed treatment is required due to the injury in the form of a fracture of tooth 23, an injury to which I have previously found that the applicant’s work was a substantial contributing factor. Whilst the treatment by Dr Lazaris extends beyond tooth 23 the treatment is only required because tooth 23 was an abutment to the applicant’s dental bridge and in its injured state that abutment has failed causing the dental bridge to fail. As was observed in Murphy the work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act. I am comfortably satisfied that the injury materially contributed to the need for the proposed treatment.
In my view this factor weights in favour of the proposed treatment.

(b) the availability of alternative treatment, and its potential effectiveness

In the opinion of Dr Sotiropoulos, applying Dr Lazaris’ own previous treatment planning principles of accepting and relying upon an endodontically treated canine at tooth 13, in 2017, the fractured tooth 23 may be similarly treated and used to support (reattach?) the existing bridge to render the applicant in as like-for like condition as she was prior to the work injury.[34] Dr Sotiropoulos observed that such a treatment would be clearly less invasive and cheaper (without providing any indication as to the costs) than the treatment proposed by
[34] Respondent ALAD p. 5.
Dr Lazaris. Dr Sotiropoulos does concede that the treatment proposed by Dr Lazaris is superior in treating the applicant’s historic edentulism at 11-21-22 and subsequent loss of tooth 12 in 2017 as well as the recent fracture of tooth 23.
It is the evidence of Dr Lazaris that there are several alternate treatment plan options, however all other options are aggressive in nature, and/or come at the risk of significantly increased risk of failure and further tooth loss.[35]
[35] ARD p. 26.
It is the opinion of Dr Lazaris that the horizontal tooth fracture of tooth 23 renders that tooth unrestorable in a predictable manner and furthermore makes it a poor abutment for a fixed bridge.[36] In the opinion of Dr Lazaris extending the bridge to the upper 4s as abutments would undesirably increase the torquing movement on the teeth and significantly decrease the length and cross-sectional area of tooth roots. The unavoidable removal of the remaining fractured root of tooth 23, precludes the placement of a fixed bridge supported by tooth 13 as the occlusal functional dynamics have been altered to the degree that this treatment option is not clinically justifiable and carries a significant risk of imminent prosthesis failure and further tooth loss.[37]
[36] ARD p. 27.
[37] ARD p. 28.
In the opinion of Dr Lazaris, the only option for a fixed prosthesis requires the placement of osseointegrated dental implant fixtures to support the prosthesis.[38]
[38] ARD p. 28.
It is the evidence of Dr Lazaris that evidenced based treatment protocols dictate that an osseointegrated implant and natural tooth cannot be used in conjunction to support a fixed prosthesis due to incompatible biomechanical behaviour, so a permanent fixed prosthesis must be supported by implants alone. Dental implants by their nature, do not tolerate bending moments or torque in the same manner as natural teeth and so the edentulous span must include up to four implants to have a favourable prognosis. The only viable implant sites are in the positions of teeth 13, 23, 12, 11, 21, 22, however, teeth 12, 11, 21, 22 have been absent for several years and the supporting alveolar bone necessary to place the implants successfully has been destroyed by the avulsion of the front teeth as a result of trauma sustained as a child, and or alveolar resorption secondary to tooth loss. The absence of viable bony substrate in key areas necessitates augmentation of the hard tissues (osseous graft) and soft tissue (soft tissue graft) as necessary adjunctive treatment to placement of implants in stages.[39]
[39] ARD p. 28.
In the opinion of Dr Lazaris there are no other viable treatment options available that do not involve further tooth loss and increased risk of aesthetic and functional failure.[40]
[40] ARD p. 29.
I prefer the opinion of Dr Lazaris for the following reasons.
Dr Sotiropoulos suggests that the fractured tooth 23 may be similarly treated as tooth 13 and used to support the reattached dental bridge to render the applicant in as like-for like condition as she was prior to the work injury. This in my view is inconsistent with
[41] Reply p. 14.
Dr Sotiropoulos’ own observation that tooth 13 was “compromised in its value as an abutment, due to its post/core and endodontic history.”[41] If tooth 23 was treated in the same fashion as tooth 13 then both abutment teeth would be compromised in their value as abutment teeth which would not leave the applicant in as “like-for like condition”. The opinion of Dr Lazaris that the horizontal tooth fracture of tooth 23 makes it a poor abutment for a fixed bridge is however consistent with the opinion of Dr Sotiropoulos that tooth 13 due to its post/core and endodontic history was compromised as an abutment.
Dr Lazaris examines as an alternate course of treatment extending the bridge to the upper 4s as abutments but rejects that alternative providing detailed reasons as to why that alternative is not suitable identifying a significant risk of imminent failure of the bridge and further tooth loss as a significant risk.
In my view this factor weighs in favour of the treatment proposed by Dr Lazaris.

(c) the cost of the treatment

Whilst the costs of the treatment proposed by Dr Lazaris is significant no alternative effective treatment, as discussed above at (d), has been identified in my view. As previously discussed, Dr Sotiropoulos concedes that the treatment proposed is an accepted treatment and is a superior treatment to the alternate treatment option which he identified. As discussed above the evidence in my opinion supports that the treatment proposed by
Dr Lazaris is the one that is also likely to be most effective with there being a significant risk of the dental bridge failing if the alternate treatment proposed by Dr Sotiropoulos was adopted.
For the above reasons I am of the view that this factor does not weigh against the proposed treatment.

(d) the actual or potential effectiveness of the treatment

As previously discussed, Dr Sotiropoulos concedes that the treatment proposed is an accepted treatment and is a superior treatment to the alternate treatment option which he identified. As discussed above the evidence in my opinion supports that the treatment proposed by Dr Lazaris is the one that is also likely to be most effective with there being a significant risk of the dental bridge failing if the alternate treatment proposed by
Dr Sotiropoulos was adopted.
For the above reasons I am of the view that this factor weighs in favour of the treatment proposed by Dr Lazaris.

(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective

As previously discussed Dr Sotiropoulos accepts that the medical treatment proposed by
Dr Lazaris is accepted treatment and is superior treatment to that proposed by him.
In my opinion this factor weighs in favour of the treatment proposed by Dr Lazaris.
For the above reasons I am of the view the above factors weigh in favour of the treatment being reasonably necessary as a result of the injury. I therefore find that the proposed treatment is reasonably necessary as a result of the injury.
I note that whilst I have read and considered the evidence of Dr Michalopoulos it added little to the evidence apart from supporting the opinions of Dr Lazaris. As I have found the relevant reasoning and opinions of Dr Lazaris persuasive in its own right, I have not referred to the report of Dr Michalopoulos.

[2025] NSWPIC 69

4 March 2025