Shankar v Transdev NSW South Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Shankar v Transdev NSW South Pty Limited [2024] NSWPIC 447
APPLICANT:	Ashween Shankar
RESPONDENT:	Transdev NSW South Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	19 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 60; claim for compensation for proposed cervical spine surgery; no dispute that surgery reasonably necessary medical treatment for a condition at the applicant’s spine; whether injury to cervical spine due to nature and conditions of employment as a bus driver; previously accepted injury to lumbar spine due to nature and conditions of employment; contemporaneous evidence of cervical spine symptoms during employment; claim for injury not made until approximately two and half years after employment ceased; Held – applicant has not discharged her onus of establishing injury or material contribution to need for surgery from injury; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Ms Ashween Shankar (the applicant) was employed as a bus driver by Transdev NSW South Pty Limited (the respondent).
The applicant claims that, as a result of the nature and conditions of her employment with the respondent, she has sustained an injury to her cervical spine in respect of which surgery, in the form of a C5/C6 decompression, laminectomy, and intervertebral total disc replacement, has been recommended by Dr Ashish Diwan.
Liability for the injury and the surgery was disputed by the respondent’s insurer in notices issued pursuant to ss 78 and 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 21 April 2022, 24 June 2022, 21 February 2023, 27 June 2023 and 26 March 2024.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute lodged in the Personal Injury Commission (Commission) on 8 May 2024. The applicant seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the costs of and incidental to the surgery proposed by Dr Diwan.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 19 July 2024 in Sydney. The applicant was represented by Mr Grimes of counsel. The respondent was represented by Mr Doak of counsel.
During the conciliation conference, the parties reached agreement that the surgical treatment proposed by Dr Diwan was reasonably necessary medical treatment for the condition at the applicant’s cervical spine. The causal relationship between that condition and the applicant’s employment with the respondent remained in dispute.
The parties were advised that, given the large volume of material filed in the proceedings, I would only take into account the material to which I was directed in submissions when making my determination.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury to her cervical spine due to the nature and conditions of her employment with the respondent pursuant to s 4(b) of the 1987 Act, and
(b) whether the C5/C6 decompression, laminectomy, and intervertebral total disc replacement surgery proposed by Dr Diwan is reasonably necessary as a result of injury pursuant to s 60 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents[1].
[1] The reports of Dr Moloney were admitted for the purpose of the history recorded therein only.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by her on 18 January 2019, 10 July 2020, 8 March 2021, 15 August 2022 and 8 May 2024.
The applicant’s first statement was prepared in connection with a previous claim for injury to her lumbar spine due to the nature and conditions of her employment. The applicant said she had been employed as a full-time bus driver attached to the respondent’s Menai depot. The applicant worked Monday to Friday starting at 6:23 AM and finishing at 5:20 PM with two scheduled breaks per shift.
The applicant described pain in her lumbar spine which she attributed to being intermittently allocated older types of buses, of various makes and models, with non-adjustable seats or seats with limited adjustability, poor cushioning and support and significant issues with vibrations.
In her second statement, the applicant provided further clarity around her lumbar injury. The applicant confirmed that she had commenced employment with Connex Pty Ltd in about 2005 which was later taken over by Veolia Transport and then the respondent in about 2013. The applicant’s role remained the same.
The applicant said that when doing school runs, charters and rail runs, the buses she drove were approximately 25-year-old Mercedes-Benz, Hinos, Volvos and Schappelles. Due to their age and lack of appropriate maintenance, the buses lacked supportive cushioning, had poor adjustable seating and limited space in the driver’s compartment. The braking systems were older and jolted when driving. The applicant was also required to help mothers with prams entering the bus. This required bending and heavy lifting and the weight of baby prams would sometimes exceed 7 kg. The applicant also assisted disabled people including people using wheelchairs.
The applicant expressed the view that bending and twisting, associated with opening and closing the old-style windows and roof hatches on the buses also contributed to her back pain.
The applicant started noticing intermittent back pain in 2014. Towards the end of 2014, the applicant attended the emergency department at Sutherland Hospital due to severe back pain. The applicant was discharged with painkillers including morphine. The applicant took sick leave for seven weeks.
Between 2015 and 2018, the applicant continued to work but her back pain never went away. The applicant found that if she operated older buses at work she would end the day with significant pain. On days she was operating the newer buses, the applicant’s back pain and was manageable.
The applicant experienced a significant flareup of extreme pain in her lower back in
March 2018 and went off work for approximately 7 to 8 weeks.
The applicant returned to work on restricted duties and was allocated work with another driver. The applicant had a considerate manager who was aware of her back issues. The applicant would drive for about one hour then was permitted to have a rest. The applicant then started working split shifts of 3 to 4 hours in the morning and 4 to 5 hours in the afternoon, with a break at home, in order to help a pain management. The applicant was also allocated the newer model buses to avoid aggravating her back pain.
In September 2018, the applicant’s manager was transferred to a different depot. About four weeks later, the applicant began to be allocated an older Mercedes bus with poor cushioning. The applicant’s back was unsupported, and she refused to accept the bus. The applicant was told by her new manager that she would need to obtain a clearance letter from her specialist stating that she was fit to perform duties in both old and new buses before returning to work.
The applicant provided a letter from Dr Diwan and was seen by an independent doctor,
Dr William Ma, following which she was able to continue work with newer buses. The applicant continued to manage her back pain but over time it deteriorated. In April 2019, the applicant was terminated on medical grounds.
The applicant described the symptoms in her neck in the statement dated 15 August 2022. In that statement, the applicant reiterated her employment history. The applicant said she experienced strain in her shoulders and neck due to lengthy hours driving in rigid, constrained and uncomfortable positions, repetitively working her arms and neck while getting jolted in her back. It was awkward to change gears and break and the applicant could not adjust her position to make herself comfortable while driving.
The applicant’s duties included getting out of her seat and adjusting a ramp to help passengers with prams and disabled passengers to boarding and disembark from the bus.
Unlike the buses available now, the applicant had in the past been required to operate buses in which she had to manually change destination flags. This involved climbing three steep steps and reaching up to manually turn a lever to change bus signs. This contributed to the applicant’s neck and back symptoms.
When a bus broke down, the applicant would have to go behind the bus to take out belts weighing about 5 kg. The applicant had to manoeuvre her body awkwardly to bend, lift and carry those belts.
The applicant said that over time, she altered the way she moved to protect her lower back injury which caused her to feel pain in her neck. The applicant said she felt stiff and sore mainly on the right side and had difficulty moving her neck from side to side or up-and-down. The pain in the applicant’s neck went into her shoulders with a constant squeezing, throbbing sensation in her neck, which flared up when she turned her head.
Dr Diwan performed an L4 to S1 transforaminal lumber interbody fusion on 20 July 2021. After the operation, the applicant continued to experience lumbar symptoms but they were milder. The applicant’s neck pain became more apparent after the lower back symptoms eased.
The applicant spoke to Dr Diwan about the strong pain in her neck and she was referred for an MRI scan.
After a flareup of neck pain and chest pain, the applicant was taken to Sutherland Hospital. On 22 March 2022, Dr Diwan advised the applicant to have surgery on her neck in the form of a cervical disc replacement at C5/6. Dr Diwan said that spinal injections would not be effective in reducing her neck pain.
In her most recent statement, dated 8 May 2024, the applicant reiterated the history provided in her earlier statements.
The applicant said that as her lower back pain lessened following surgery, she became more aware of shoulder, upper back and neck pain. The applicant consulted Dr Diwan and underwent various conservative treatments which did not improve her pain or discomfort.
The applicant expressed disagreement with the insurer’s decision to dispute liability for the neck injury and surgery. The applicant stated,
“I believe I suffered an injury to my neck due to my work as a bus driver over many years. I say this as my neck pain started when driving buses. I first recall suffering from neck and upper back pain as a result of my duties as a bus driver in or about 2009. At that time, the pain in my neck and upper back was mild, and I treated it with pain killers and heat packs. I continued to suffer from mild upper back and neck pain since that time. I also continued working full-time as a bus driver.
Around March 2017 my neck pain increased, and I consulted my GP, Dr Shahrian Chowdhury. My neck pain increased because of the nature of my job as a bus driver, which was physical and required me to hold my neck in a fixed position and regularly turn it when driving the bus, checking traffic, checking for customers on the side of the road, and letting passengers in and off the bus. After consulted with my GP in or around March 2017, I was referred for an x-ray of my cervical spine, which I underwent in or about April 2017. Despite my symptoms, I continued working full-time duties and managing my neck pain with pain killers and heat packs. I continued to suffer from neck pain and once again saw my GP in August 2017 because of increasing neck pain. Throughout this period, my low back pain and radiating pain into my legs (worse on the left) was so severe that it remained the focus of my treatment. In November 2018, Dr Sharian Chowdhury (GP) recommended I see a chiropractor about my neck and back pain. On 29 April 2019, my employment with Transdev was terminated. At that time, I continued to suffer from severe pain in my low back with this pain radiating into my legs (worse on the left). I also suffered from pain, stiffness, and discomfit in my upper back, shoulders, and neck. As noted above, following the surgery to my lower back on 20 July 2021, and as my low back and leg pain decreased, I became more aware of my shoulder, upper back, and neck pain and consulted Dr Diwan about this.”

Respondent’s witness evidence

The respondent relies on a factual investigation report prepared by Farrell’s Investigative Services, dated 4 February 2019. The report attached signed statements from various witnesses.
The witness evidence tends to confirm that the applicant complained of back symptoms to her colleagues. There was evidence from several witnesses that the applicant had hurt her back in the gym.

Treating evidence

Clinical records from Centahealth General Practice and Alison Crescent Medical Centre are in evidence. On 30 March 2017, general practitioner, Dr Sharian Chowdhury recorded that the applicant had seen him for neck pain. The applicant was referred for X-ray of the cervical spine.
An X-ray of the cervical spine was performed on 19 April 2017. The accompanying report indicated that disc space narrowing was noted at C5/6 and to a lesser extent at C6/7. Spondylitic changes were noted particularly at C5/6.
On 21 April 2017, Dr Yu Sun, saw the applicant with X-ray results which recorded degenerative change at C5/6. The applicant was advised to treat her symptoms with simple analgesia, exercise and physiotherapy.
Referrals for a chiropractor and physiotherapist were done by Dr Chowdhury on
28 April 2017.
On 17 August 2017, Dr Mainul Joarder saw the applicant in relation to right side neck pain on and off for the last two weeks. There was no trauma or injury. Pain increased with neck movement. On examination, the applicant had mild tender right paravertebral muscles and mildly painful restriction of movement. The applicant was advised to treat her symptoms with rest and analgesia.
Clinical notes from an initial consultation with Metro Chiropractic Clinic on 29 March 2018 show that the applicant reported and was treated for acute lower back pain. There was no indication of cervical spine symptoms.
On 30 November 2018, Dr Chowdhury made a note which referred to the applicant trying chiro for her neck and back. It was noted that the applicant was under the care of Dr Diwan.
On 29 May 2019, Dr Joarder noted a complaint of a sore neck. The applicant was again advised to rest and take analgesia.
On 30 May 2019, Dr Chowdhury recorded a consultation in which the applicant reported neck pain. A history of disc prolapse was noted. The applicant was referred for a CT scan of the cervical spine with cortisone injection if indicated.
In a report to Dr Joarder dated 24 January 2022, spine and scoliosis surgeon, Dr Ashish Diwan noted that the applicant was six months post L4-S1 translumbar interbody fusion. The applicant had some residual discomfort. Dr Diwan recorded
“She also has a right neck pain with right precordial pain for the past 3 weeks. She used to have similar symptoms way back in 2017 and wondered whether her evaluation has revealed that she has C4-C6 disc involvement. Today’s examination reveals that the shoulder is good, and there were no upper limb neurological exam issues, but there was some precordial tenderness.
I have suggested that she take a good dose of nurofen as it is more than likely there may be elements of osteochondritis. If the symptoms do not settle down in 2 to 3 weeks I will then be investigating the neck by way of x-rays and MRI scans. My expectation is that her symptoms will resolve by then.”
On 14 February 2022, the applicant was referred for an X-ray and MRI of the cervical spine. The notes of the referral indicated a recurrence of neck pain which had previously occurred in 2017, not settling with simple anti-inflammatory medications and rest.
The report of an X-ray of the cervical spine performed on 28 February 2022 noted mild degenerative spondylosis at C5-6 and C6-7 characterised by endplate osteophyte formation. An MRI scan on the same date was also reported to show spondylotic change at C5/6 characterised by mild disc space narrowing and peridiscal osteophyte formation.
In a report dated 16 March 2022, Dr Diwan noted that the applicant complained of right scapular thoracic upper arm and precordial pain. Examination of her shoulder was negative for frozen shoulder, rotator cuff tear or SLAP lesion. Dr Diwan referred to the radiological investigations and gave the opinion:
“Given the chronicity of her symptoms and disability profile I have discussed with her various options both surgical and non‐ surgical. Weighing all pros and cons and in the balance it is reasonable for her to consider a C5‐C6 anterior disc excision and replacement with a prosthetic device. This replacement will protect the C6‐7 from rapid degeneration.”
A request for approval for the surgery was forwarded to the respondent’s insurer on
22 March 2022.
Dr Diwan issued a SIRA certificate of capacity on 28 April 2022 certifying the applicant as having no current work capacity in relation to her lumbar spine injury in which he noted:
“Ashween’s recurrence of neck pain continues to limit her ability to drive for work. Surgery has been recommended for this issue and approval is awaited.”
In a dated 17 May 2022, Dr Diwan responded to a series of questions from the insurer, including a question as to whether the pathology shown on the radiological investigations was the cause of the applicant’s neck pain. Dr Diwan agreed that the region of pathological changes corresponded to the applicant’s described symptoms.
Asked whether the cervical disc changes shown on the imaging were substantially caused by the applicant’s back injury, Dr Diwan responded:
“Cervical disc issues are usually related to occupational hazards of neck injuries and not to injury to neck [sic]. The patient should be encouraged to provide the details of any neck injury and any potential occupational hazards.”
Dr Diwan prepared a further report for the applicant’s solicitors on 22 August 2023 in which he described the nature, mechanism and extent of the applicant’s injury as follows:
“Mrs Shankar's injuries have led to chronic neck, scapular and shoulder pain as a consequence of progressive C5‐C6 disc disease with a disc height is diminished by 50%. There is some contribution to neck pain of the C6‐7 disc disease with the disc height still maintained.
While the extent of these injuries are not dramatic in that there is no spinal cord or nerve compression, however, given the chronicity of her symptoms and significant disability as a consequence of pain the condition can be considered recalcitrant and chronic.
The nature of such injuries is a combination of micro trauma which may be related to both day‐to‐day activities as well as work. In Mrs Shankar's case being a bus driver there appears to be a significant contribution of the latter.”
In response to a question as to whether the proposed treatment was due to the type of work the applicant was required to do in her employment with the respondent, Dr Diwan stated:
“She has had simple conservative non‐operative care for the above‐mentioned problem that has arisen predominantly to the work your client was required to do during her employment. In the past she has had similar issues related to her lower back which has been managed successfully by way of a L4‐S1 minimally invasive spinal fusion. Consequent to that it appears the neck symptoms unravelled and have now become the predominant source of distress.”

Dr Diwan expressed the opinion that employment was the main contributing factor to the injury.

Dr Bodel

The applicant relies on medicolegal reports prepared by orthopaedic surgeon, Dr James Bodel, dated 27 November 2019, 16 February 2020, 2 February 2023, 7 June 2023 and
19 February 2024.
In his first two reports, Dr Bodel took an occupational history noting that the applicant had been employed as a bus driver. The applicant had driven fairly old buses although they were all now automatic buses. The applicant’s work included charters and school bus runs.
Dr Bodel commented on the applicant’s lumbar injury.
In his report dated 2 February 2023, Dr Bodel recorded that the applicant had developed some intermittent neck pain which was not present when he saw her last. Head down posture and use of the right arm overhead could aggravate the pain, which had come on gradually over time.
On examination, Dr Bodel noted stiffness at the base of the neck on the left side and guarding in that area and restricted range of neck motion. Dr Bodel reviewed the MRI and X-rays of the cervical spine. Dr Bodel referred to the local doctors’ notes and gave the opinion,
“I agree in principle that this lady has done the truck driving work in old buses for a lengthy period of time since the early 2000s. She has developed back pain gradually over time and she has also developed neck pain gradually over time. There is underlying degenerative change and therefore both injuries are covered by the disease provisions of the Act in my view. The nature and conditions of her work has caused aggravation, acceleration, exacerbation and deterioration to the disease process in the neck.”
Dr Bodel said the cervical spine disc replacement procedure recommended by Dr Diwan was reasonably necessary for the management of the applicant’s injury based on her clinical presentation.
Asked to comment on any pre-existing conditions, Dr Bodel stated
“I have already commented about the report from Dr Moloney. I have observed that Dr Diwan has also commented on this. He states that the condition in the neck is “constitutional changes of the C5/6 and C6/7” and that is correct. That is however not the “injury” in that circumstance and the injury is the aggravation, acceleration, exacerbation and deterioration of that disease process. I agree with Dr Diwan and I disagree with Dr Moloney.”
In his final report, Dr Bodel reiterated his view that the cervical spine injury was work related by way of aggravation, acceleration, exacerbation and deterioration of a disease process caused by the nature and conditions of the applicant’s work over many years as a bus driver. Dr Bodel conducted a further examination of the applicant, finding tenderness and restriction of movement at the neck. There were no further investigations available for review.
The general practitioner’s notes were said to be consistent with the applicant’s evidence. Dr Diwan’s reports were noted, including his recommendation for surgery. Dr Bodel summarised the opinions of the respondent’s medicolegal experts but said he was still satisfied that the nature and conditions of the applicant’s work over many years as a bus driver, particularly on the older model buses, had put a significant strain on the neck and shoulders leading to an aggravation of a disease process and the need for surgery.
Dr Bodel expressed the view that the nature of the applicant’s work had materially contributed to the need for surgery on the cervical spine, noting:
“The surgery as proposed by Dr Diwan, in the form of an injury cervical decompression and disc replacement procedure is appropriate and is reasonably necessary for the management of the injury caused by the nature and conditions of work by way of aggravation, acceleration, exacerbation and deterioration to that disease process in the cervical spine at C5/6. The surgery is reasonable and necessary and the items that you have mentioned in this subsection of the question are satisfied in this circumstance. In particular, the treatment is an accepted type of surgical procedure in the medical profession as a reasonable option in this circumstance.”

Dr Casikar

The respondent relies on a medicolegal report prepared by neurosurgeon, Dr Vidyasagar Casikar, dated 18 May 2023.
Dr Casikar took a history that the applicant had been employed as a bus driver for 15 years. The applicant was medically terminated in 2019 and had not worked since. Dr Casikar referred to the gradual development of back pain in 2014 and the subsequent treatment of that injury.
Dr Casikar referred to neck pain gradually increasing in 2009. The neck pain increased after the spinal fusion. The applicant changed her family physician to Dr Chowdhury and underwent an MRI scan on his advice. The applicant was told that there was a problem that at the C5/6 segment. Following another MRI, Dr Diwan had suggested a posterior fusion of the neck.
Dr Casikar found movements of the neck were full and pain free on examination. Neurological examination suggested hyperaesthesia over the entire right upper limb, the abdomen and right side of the face.
Dr Casikar diagnosed constitutional degenerative disease of the cervical spine, giving the opinion,
“She attributes her cervical spine pathology due to her lumbar fusion. I find it is very difficult to justify this argument. In my opinion, she has degenerative disease of the cervical spine. About 20% of people have degenerative changes both in the cervical and lumbar spine. I find it very difficult to support Dr Diwan’s decision to do a spinal fusion. Perhaps the indications are due to the degenerative disease. I cannot accept that this is due to her employment.”
Asked whether the applicant had suffered a cervical spine injury as a result of the nature and conditions of her employment with the respondent, Dr Casikar responded:
“There is no evidence to support that Ms Shankar has suffered a cervical spine injury. She attributes this to the nature of her employment. This is difficult to justify.”
Dr Casikar commented further,
“Her cervical spine pathology is unrelated to her employment. Her symptoms of neck pain are predominantly due to age-related degenerative changes and perhaps a pain syndrome. It was not related to the duration of her employment.
The probability that she could have suffered these symptoms at this stage in her life is likely. Her state of health indicated pre-existing degenerative disease. Her lifestyle activities have been fairly sedate.”
Asked whether the applicant had suffered an aggravation of a pre-existing condition arising out of or in the course of her employment, Dr Casikar responded,
“She has not suffered an aggravation to pre-existing degenerative disease of the cervical spine. She indicated that she had neck pain from 2009. Again she did not indicate there was any specific workplace injury.
…
Her opinion that this is related to the nature of her employment, namely driving buses, is difficult to justify. Therefore in my opinion there is no contributing factor from her employment for the alleged aggravation of her cervical spine.”
Dr Casikar considered that the surgery proposed by Dr Diwan was mainly to address the degenerative disease of the cervical spine. Dr Casikar noted the opinions of Dr Bodel but concluded:
“Her complaint of cervical spine injury is unrelated to her employment. This is also due to degenerative disease. Dr Diwan’s decision to do a cervical fusion may be acceptable based on the pathology in the cervical spine, however, in my opinion this pathology is unrelated to her employment. Ms Shankar has not worked since 2019. I believe if there was any aggravation due to her employment it would have ceased by now.”

Dr Moloney

The respondent relies on the history recorded in a medicolegal report prepared by
Dr Peter Maloney on 17 June 2022.
Dr Moloney took a history of back pain radiating into both legs which the applicant found was aggravated by driving old buses.
The applicant reported being aware of increasing neck pain for the last four months or so. The applicant said she had similar pain 2017. The applicant mentioned the problem to Dr Diwan who prescribed ibuprofen. When the pain did not settle, an MRI scan was performed and a disc replacement operation had been recommended at the C5/6 level.
Dr Moloney noted:
“Even though she does not have any arm pain at the moment, she told me that in 2017, she had an attack of neck and arm pain that lasted until 2020 and was treated with Panadol. She said that she had mentioned it to her treating doctors however, it would appear that she probably only mentioned it on two or three occasions in a three year period.”

Applicant’s submissions

The applicant claimed that she had received an injury under s 4(b)(ii) of the 1987 Act. Having regard to authorities such as Federal Broom Co Pty Ltd v Semlitch[2], an intensification of symptoms was sufficient to satisfy that provision.
[2] [1964] HCA 34.
The applicant referred to her statement evidence including, being forced to drive old buses. The applicant described being jolted, repetitively working her arms and neck, and sitting in a confined space without the ability to adjust her seat. The applicant also described heavy duties including moving ramps, changing destination flags and taking out belts.
The applicant highlighted the duration of her employment as a bus driver. The applicant commenced working in 2005 and reported a gradual onset of symptoms.
The applicant noted that she first reported neck symptoms to her general practitioner,
Dr Chowdhury. Dr Chowdhury’s clinical notes confirmed this. The applicant was referred for an X-ray which was performed on 19 April 2017. The applicant reported neck pain increasing with movement in August 2017.
The applicant submitted that there was contemporaneous support for the applicant’s claim in the clinical material during the period when the applicant was still employed by the respondent.
The applicant gave evidence that she had prioritised treatment of her significant back pain. There was a previous dispute with regard to lumbar surgery. The applicant underwent injections and hospital admissions and eventually a lumbar fusion.
The applicant gave evidence that as her lower back pain and leg pain lessened, she became more aware of neck pain. The applicant consulted Dr Diwan about her neck pain on
24 January 2022.
The applicant submitted that Dr Diwan did not take a complete history as the clinical notes showed that the applicant complained of neck symptoms in 2017 as well in 2019, around the time she ceased work.
Clear pathology was shown on the MRI scan. No other cause for the pathology had been identified. There were no relevant events outside employment.
The evidence demonstrated clear reports of pain during the period of employment. The applicant had given statement evidence of continued pain in the neck throughout the period since employment despite a focus on her lumbar symptoms.
The applicant noted Dr Diwan’s reports recommending surgery and submitted that he answered the insurer’s questions regarding the causal relationship between employment and her neck symptoms favourably to the applicant.
The applicant referred to Dr Bodel’s reports. Dr Bodel described the mechanism of injury and its impact upon the pathology at the applicant’s cervical spine Dr Bodel concluded that on the balance of probabilities the nature of the applicant’s work over many years had caused an aggravation of that pathology and materially contributed to the need for the surgery on the cervical spine. The applicant submitted that Dr Bodel took a comprehensive history, acknowledged the applicant’s employment duties and linked them to the pathology at her cervical spine. His opinion was consistent with the treating evidence and lay evidence and ought to be preferred over Dr Casikar’s.
The applicant noted that Dr Casikar took a history of symptoms commencing in 2009. He did not have a correct history of the complaints in 2017 and 2019. Dr Casikar’s report suggested that symptoms only came on after the lumbar surgery.
The applicant submitted that it was bizarre that Dr Casikar found full and pain free movement of the cervical spine on examination yet despite the absence of clinical symptomology agreed with the recommendation for surgery.
Dr Casikar failed to acknowledge that the cervical spine was investigated in 2017 while the applicant was still performing duties for the respondent.
Dr Casikar rejected the proposition that the pathology was due to the lumbar fusion but that was not the case pursued by the applicant.
Dr Casikar did not accept that there was an injury due to employment but gave that opinion without referring to the lay evidence or the treating evidence. Dr Casikar’s opinion that an injury due to the nature and conditions of employment was difficult to justify was given without explanation or acknowledgement of the actual duties performed by the applicant. He did not acknowledge the treatment during the period of employment and did not explain how he had come to this conclusion.
When asked specifically to take into account the nature and duration of the applicant’s employment, Dr Casikar merely repeated his previous opinion without providing any further analysis of the duration or nature of the tasks performed.
Dr Casikar referred to the absence of a specific workplace injury despite the applicant not relying on a frank injury. These comments were said to further undermine Dr Casikar’s ultimate opinion.

Respondent’s submissions

The respondent agreed with the applicant’s identification of the relevant legal principles and referred also to the test in In Murphy v Allity Management Services Pty Ltd[3] and the decision in Albury City Council v Gunton[4].
[3] [2015] NSWWCCPD 49.
[4] [2011] WCCPD 68.
The respondent submitted that an increase in symptoms could simply be a revelation of pathology rather than an aggravation of a disease. The respondent submitted that the evidence did not demonstrate an aggravation or increase in symptoms caused by employment.
The respondent observed that there was a factual dispute with regard to the nature of the applicant’s employment duties. The respondent’s witnesses had given evidence that the applicant would only have driven automatic buses. The respondent’s witness evidence was unchallenged and unrefuted. The respondent submitted that the Commission would not accept that gear changing would have contributed to an aggravation of any pathology at the applicant’s cervical spine.
Although the applicant said there were contemporaneous reports of neck pain, both the description of injury in the Application to Resolve a Dispute and Dr Casikar’s history recorded that pain had commenced in 2009.
The clinical notes in evidence before the Commission did not cover the period in 2009 when the applicant said she began to suffer neck pains. There was no report from a general practitioner from that time. The respondent submitted that the applicant’s assertion that pain commenced from that time would not be accepted in the absence of corroboration.
The respondent noted that the clinical records referring to neck pain in 2017 made no reference to work being a cause of the symptoms. There was no explanation as to why the applicant would not have told her doctors that her symptoms were work related given her concurrent workers compensation claim in relation to the back.
The applicant asserted that she continued working with difficulty but at no stage did she make a complaint to her employer about neck problems due to driving buses. None of the certificates from the applicant’s treating doctors indicated neck pain related to driving buses. The applicant was aware of the mechanism for reporting injuries. If she had an injury to her neck, she could have reported it.
The references to chiropractic treatment in 2018 were made in the context of back symptoms. At that stage, no complaint had been made to Dr Diwan or Dr Chowdhury about work being relevant to neck pain. The notes from Metro Chiropractic Clinic referred only to back symptoms and treatment without any reference to complaints of pain in the neck.
The respondent observed that no report had been provided from Dr Chowdhury regarding the cause of the applicant’s neck pain. The respondent submitted that the Commission ought to draw an adverse inference from the absence of an opinion from Dr Chowdhury given that he was well-placed to comment on causation.
The respondent submitted that there must be evidence that comfortably persuaded the Commission that the symptoms in the applicant’s neck were due to work rather than an underlying condition. There was no reference to a work-related cause for the symptoms in any of the contemporaneous notes.
The respondent noted that the applicant initially claimed that her neck symptoms were consequential to her back injury. This was addressed in the history recorded by Dr Moloney. That claim completely contradicted the contention in this case that the symptoms were due to activities driving a bus.
There was no contemporaneous complaint to a general practitioner, chiropractor or the employer of work causing neck symptoms. The evidence on causation was all retrospective and given after the applicant ceased work. The failure to complain of work-related neck pain to either her doctor or employer was unexplained, particularly given the applicant was already seeing doctor about a work injury at the back.
The alternative cause of the applicant’s symptoms was degenerative pathology.
Dr Casikar performed an examination and considered the radiological investigations before giving an uncontroversial opinion that the applicant’s symptoms and any need for surgery were due to degenerative pathology.
Dr Casikar considered the surgery was acceptable treatment for the pathology but said that the pathology was unrelated to employment. Although his examination found little in the way of clinical signs, pathology was clearly demonstrated on the investigations. The quirks in expression in the report were a reflection of the way the applicant had brought her case over time. Dr Casikar’s history was consistent with the absence of complaint of a work-related cause for neck symptoms.
Dr Bodel’s history was vague and based on unsubstantiated assertions, some of which were disputed in the respondent’s witness evidence.
Dr Bodel said the applicant’s symptoms came on gradually while having her back treated. That history was not consistent with pain due to driving a bus. In contradiction to his earlier statement, Dr Bodel then recorded that driving was difficult and that caused the pain.
Dr Bodel’s analysis was not detailed and not supported by the contemporaneous medical material.
The respondent submitted that the applicant’s case involved a reconstruction of history based on assumptions. The evidence was not persuasive and did not deal with the absence of contemporaneous complaints of a work-related injury.
Dr Diwan did not address the absence of contemporaneous complaints or the continuation of work without any injury being reported to the employer. There was no treatment of the neck during the period of employment other than X-ray investigation. The applicant did not report her neck symptoms in 2017 to her chiropractor or Dr Diwan.
In order to be persuaded that the applicant had an injury pursuant to s 4(b)(ii) of the 1987 Act, the Commission had to be satisfied there was a causal connection between work and the neck symptoms. That assertion was made at the heel of the hunt, after work ceased.
Considering all the evidence, the Commission would be satisfied that any increase in symptoms was a revelation of the previous disease condition and not a work-related aggravation of that condition. The Commission would find for the respondent on the issue of injury.

Applicant’s submissions in reply

The applicant submitted that the respondent had made much of the lack of contemporaneous reporting of a work cause for the applicant’s symptoms. The applicant submitted that the clinical notes ought to be approached with caution, referring to the decisions in cases such as Davis v Council of the City of Wagga Wagga[5].
[5] [2004] NSWCA 34.

The applicant’s evidence demonstrated that she had a significant back problem that was consistently reported. Her duties were modified as a result. The applicant’s priority was her back injury and that explained the lack of focus on neck symptoms. The Commission would not find against the applicant on the basis of the absence of reference to work in the general practitioner’s notes.
Clear evidence on causation had been provided by Dr Bodel and Dr Diwan. Dr Bodel had a correct understanding of the applicant’s work duties. His opinions could be contrasted with
Dr Casikar’s report which demonstrated little insight into the nature of the applicant’s work.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer.
“The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i)      a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)      the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”
Section 60 of the 1987 Act relevantly provides:
“(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).”
A need for treatment can result from multiple causes. In Murphy v Allity Management Services Pty Ltd[6] Roche DP stated:
“…That is because 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.
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).”
[6] [2015] NSWWCCPD 49.
In these proceedings, there is no dispute that the applicant has a condition at her cervical spine for which the surgery proposed by Dr Diwan is reasonably necessary medical treatment. The dispute between the parties concerns whether the need for that treatment “results from” an “injury” that satisfies the requirements of s 4 of the 1987 Act.
The primary challenge for the applicant in discharging her onus arises from the delay in reporting a work-related injury to her cervical spine.
The evidence before the Commission establishes that the applicant ceased employment with the respondent in May 2019. It was not until March 2022, when approval was sought for the proposed surgery, that the applicant made any claim in respect of an injury to her cervical spine.
There are references to cervical spine symptoms in the treating evidence prior to Dr Diwan’s request for approval for the surgery, including during the period when she was employed by the respondent.
The clinical notes reveal that the applicant consulted Dr Chowdhury for neck pain in
March 2017. This prompted a referral for an X-ray of the cervical spine. The X-ray revealed spondylitic changes particularly at C5/6.
On 21 April 2017, Dr Sun noted that degenerative change had been seen on the X-ray investigations. The applicant was advised to treat her symptoms with simple analgesia, exercise and physiotherapy. Referrals to a chiropractor and physiotherapist were prepared around the same time.
Intermittent right sided neck pain without any precipitating trauma or injury was again noted in August 2017. The applicant was advised to treat her symptoms with rest and analgesia.
There was a brief reference to chiropractic treatment for the neck and back in a clinical note dated 30 November 2018.
The applicant’s general practitioners again noted neck symptoms in May 2019, shortly after the applicant ceased employment with the respondent. The applicant was referred for a CT scan with injection if required, although it is unclear whether that was in fact performed.
There is then no reference to any neck symptoms or treatment in the medical evidence for more than two and half years until Dr Diwan recorded that the applicant had reported neck pain for the past three weeks on 24 January 2022.
The neck symptoms described in Dr Diwan’s reports in early 2022 were characterised as a “recurrence” of neck pain, suggesting that symptoms experienced previously had largely subsided or resolved.
The applicant’s statement evidence was that she first recalled suffering neck pain in or about 2009. The applicant said she had continued to suffer mild neck pain since that time. There is, however, no medical evidence of the applicant reporting or receiving treatment for neck pain in 2009. It remains unclear whether the applicant sought treatment at that time or whether there was any particular precipitating event. It is clear, however, and I accept, that there was an intensification of symptoms in 2017 and again around the time the applicant ceased employment in 2019.
Whilst I accept that the applicant experienced an aggravation or exacerbation of the degenerative disease in her cervical spine which coincided temporally with the applicant’s employment with the respondent, there is nothing in the contemporaneous material indicating that the applicant’s employment was the main contributing factor to that aggravation or exacerbation.
In Gunton, to which the respondent referred in submissions, Roche DP observed:
“The observations of Evatt and Sheppard JJ in Commonwealth of Australia v Beattie [1981] FCA 88; (1981) 35 ALR 369 at 378 are applicable in the present matter:
“It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation.”
Each case must depend on its own facts. The symptoms Mr Gunton experienced while doing light part-time work with Mr Harvey were more compatible with a revelation of an existing problem in his back than the genesis of any greater problem (Middleton v Bergin Transport Pty Ltd, Burke CCJ, unreported, Compensation Court of NSW, 19 June 2001). At its highest, there was a temporary increase in Mr Gunton’s symptoms with Mr Harvey. Given the light work he performed, the very short period over which he performed it, the transient nature of the increase in his symptoms, and the absence of medical evidence addressing the consequences of the work, I do not accept that the employment with Mr Harvey was employment that was a substantial contributing factor to an aggravation injury.”
The applicant has submitted that the Commission would not draw any adverse inference from the absence of specific reference to a work-related cause for the neck symptoms in the contemporaneous treating material. The applicant referred to Davis v Council of the City of Wagga Wagga[7], where it was observed:
“Experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury.”
[7] [2004] NSWCA 34.
The Commission has approached the contemporaneous treating material with caution, bearing the authorities to which the applicant has referred in mind. It is, however, relevant to note that that the treating evidence documents that the applicant had associated her concurrent lumbar symptoms with her employment duties, at least from late 2018 onwards.
A report from Dr Diwan to Dr Joarder, dated 4 October 2018, recorded that chronic disc disease at the applicant’s lumbar spine appeared to get aggravated when the applicant drove buses at work which were of an older model with poor quality seats.
Dr Ma expressed a similar view in a report dated 15 October 2018.
WorkCover certificates of capacity were issued in relation to the lumbar spine injury from December 2018 onwards.
The applicant’s statement evidence records that following a significant flareup of lumbar pain, she went off work for 7 to 8 weeks in March 2018. On her return to work, the applicant’s duties were modified so as to avoid further aggravation of her lumbar injury.
The mechanism of injury relied upon in respect of the applicant’s lumbar injury is broadly the same as that relied upon in respect of the claimed cervical spine injury.
I accept that the applicant drove buses for various corporate entities including the respondent for a period of approximately 15 years. I accept that at various times the applicant was required to drive older model buses and that her duties included repetitively working her arms and neck while driving, moving ramps and belts and changing destination flags.
However, given that the applicant and her treating doctors including, Dr Diwan, Dr Joarder and Dr Chwodhury were all aware of the impact of these duties on her lumbar spine, the absence of any reference to a work-related injury to the applicant’s cervical spine until 2022 is, in my view, surprising.
As noted by the respondent, there is no reference to the applicant’s work aggravating symptoms at her neck in any of the clinical notes, certificates of capacity, treating reports, medicolegal reports, or written statements prepared in connection with the applicant’s back injury until early 2022.
These omissions in the evidence are relevant. In Department of Education and Training v Ireland[8] Keating P found:
“… the Arbitrator wrongly directed himself that the matter could be decided based on the credit of Ms Ireland alone. The task before the Arbitrator was to weigh the evidence of Ms Ireland together with other objective evidence, or the absence of it. The Arbitrator erred in failing to give due weight to Ms Ireland’s failure to make any report of injury to her back on the day of the accident. The absence of any documentary evidence from Dr Epps or Dr Baker to support any complaints of back pain, either contemporaneous to the accident or at least at intervals during the period between the accident and when it was first reported to Dr Wallace, is a significant omission in Ms Ireland’s case.”
[8] [2008] NSWWCCPD 134.
The relevance of delays was also considered in Jowett v S & R Jowett Pty Ltd[9] where Snell DP commented:
“The extent to which a delay or inconsistency in reporting complaints is significant will depend on the facts of a case overall, the nature of the medical condition at issue and the medical evidence. The allegation regarding a fall at the hospital involved the occurrence of a specific incident and (on one version of it) the left shoulder being dislocated. These are matters that would ordinarily be immediately apparent, unlike, for example, a condition of gradual onset. In the circumstances, evidence of contemporaneous complaint would be of potential relevance to whether an incident occurred and its nature.”
[9] [2022] NSWPICPD 42.
Given that the applicant was seeking treatment and had an ongoing claim for a work injury to another body part caused by the same duties, the delay in connecting the increase neck symptoms to work is matter to which I have given considerable weight.
Dr Bodel and Dr Diwan have both given the opinion that employment was the main contributing factor to an aggravation, acceleration, exacerbation or deterioration of the degenerative disease at the applicant’s cervical spine.
As noted by the respondent, however, those opinions were given retrospectively. The applicant had seen both Dr Bodel and Dr Diwan on multiple occasions before she reported that work had caused an intensification of cervical spine symptoms.
Neck symptoms were first noted in Dr Bodel’s third report, where he agreed “in principle” that the applicant’s work driving old buses for many years had caused an aggravation of the disease process in her cervical spine. Dr Bodel reported that the neck symptoms were not present when he saw the applicant previously.
Dr Diwan’s initial explanation of the causal relationship between the applicant’s symptoms and her work was equivocal. It was initially suggested to Dr Diwan that the neck symptoms might be related to the applicant’s back injury, a proposition with which he did not agree. In his response to the insurer’s questions on 17 May 2022, Dr Diwan suggested that the applicant should be asked to provide details of any neck injury or potential occupational hazards.
In his subsequent report for the applicant’s solicitors, whilst agreeing that being a bus driver was a “significant” contributing factor to the applicant’s cervical spine condition, Dr Diwan said the condition might also be related to microtrauma in the applicant’s day to day activities.
Weighing against the opinions of Dr Bodel and Dr Diwan is the opinion of Dr Casikar.
Dr Casikar concluded that the applicant’s symptoms of neck pain were predominantly due to age-related degenerative changes and perhaps a pain syndrome. Dr Casikar did not relate the symptoms to the duration of the applicant’s employment.
I do accept that aspects of Dr Casikar’s report are problematic. Dr Casikar’s comment that the applicant’s attribution of her symptoms to the nature of her employment was “difficult to justify” does not give any real explanation or insight into Dr Casikar’s conclusion.
Similarly, I accept that Dr Casikar’s reference to the applicant attributing her symptoms to her lumbar injury is not responsive to the current claim.
It is, however, the applicant’s onus to demonstrate that she sustained an injury satisfying the definition in s 4 of the 1987 Act, on the balance of probabilities.
Like Dr Bodel and Dr Diwan, I accept that, as a matter of common sense, the applicant’s duties as a bus driver, particularly when driving older buses, were of such a nature as to be potentially capable of aggravating the degenerative pathology at the applicant’s cervical spine. There is no dispute that those same duties did aggravate degenerative pathology at the applicant’s lumbar spine.
The evidence pertaining to the applicant’s lumbar injury did, however, include clear, contemporaneous accounts of the applicant’s duties aggravating her lumbar symptoms. There is no such evidence in relation to the cervical spine.
The applicant has sought to explain the delay in reporting a work-related cervical spine injury by reference to her back injury.
I accept that the applicant’s back injury was significant. The evidence indicates that the applicant experienced periods of extreme pain requiring strong painkillers and presentations to hospital. The applicant ultimately came to surgery at her lumbar spine, which was performed by Dr Diwan. It is understandable that treatment of the back injury was a priority for the applicant in these circumstances.
If, however, as suggested in the applicant’s evidence and the history given to Dr Moloney, she continued, throughout this period, to experience neck symptoms, it is difficult to understand why such symptoms were either not mentioned to or not recorded by her treating doctors, medicolegal expert or described in her own statement evidence between May 2019 and January 2022.
The applicant’s evidence that she continued with neck pain but it only became more prominent or intense after her back symptoms subsided post-surgery, is difficult to reconcile with the medical evidence. Dr Diwan’s report to Dr Joarder on 24 January 2022 indicated that the neck pain had started three weeks earlier. Dr Diwan’s referrals for radiological investigation of the cervical spine indicated that the applicant was experiencing a “recurrence” of similar pain experienced in 2017.
Taken together with the lack of any complaint of neck pain in the period between May 2019 and January 2022, the evidence from Dr Diwan suggests that the aggravation of the applicant’s neck condition in 2017 had ceased before recurring again in early 2022, more than two and a half years after the applicant stopped work. Dr Bodel’s third report suggests the same.
Weighing the evidence, I am not satisfied that the applicant’s neck symptoms continued in the period between mid-2019 and January 2022.
Acknowledging that the dispute in this case is one in respect of which minds might differ, I am not satisfied, on the balance of probabilities, that the applicant did suffer an aggravation of the degenerative disease in her cervical spine to which employment was the main contributing factor for the purposes of s 4(b)(ii) of the 1987 Act.
Even if am wrong in coming to that conclusion and there was a work-related aggravation of the pathology at the applicant’s cervical spine during the period in which she was employed, I am not satisfied that such injury materially contributed to the need for the surgery proposed by Dr Diwan in early 2022.
As I have indicated above, I am not satisfied that the applicant continued to experience neck symptoms in the period between the cessation of work in mid-2019 and January 2022.
Neither Dr Bodel nor Dr Diwan have addressed the significant period of time that elapsed between the cessation of work duties and the reported recurrence or new onset of symptoms in January 2022. There is no evidence to explain how the applicant’s employment continued to contribute to the symptoms that arose in January 2022.
Dr Casikar has given the opinion that the need for surgery was to address the degenerative disease in the applicant’s cervical spine and was unrelated to her work. Dr Casikar acknowledged that the applicant had not worked since 2019. Dr Casikar expressed the view that any aggravation due to employment would have ceased by now.
After careful consideration of the evidence and submissions, Dr Casikar’s view appears to me to be more consistent with the treating material.
I am not satisfied that the need for the surgery proposed by Dr Diwan results from an injury for the purposes of s 60 of the 1987 Act.
In view of the findings above, there will be an award for the respondent.

[2024] NSWPIC 447

19 August 2024