Sowden v ComfortDelGro Corporation Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sowden v ComfortDelGro Corporation Australia Pty Ltd [2025] NSWPIC 125
APPLICANT:	Mark Sowden
RESPONDENT:	ComfortDelGro Corporation Australia Pty Ltd
MEMBER:	Fiona Seaton
DATE OF DECISION:	4 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation and cost of cervical spine surgery in respect of aggravation of the applicant’s cervical spine condition; Held – the applicant has not recovered from the aggravation of his cervical spine condition; the applicant has no current work capacity and without surgery this is likely to continue indefinitely; proposed cervical spine surgery is reasonably necessary as a result of the injury.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant continues to suffer from the aggravation of his cervical spine condition sustained on 25 April 2021 within the meaning of s 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act). 2. The applicant has no current work capacity from 25 October 2024 to date and continuing as a result of the aggravation of his cervical spine condition on 25 April 2021. 3. The applicant is likely to continue indefinitely without surgery to have no current work capacity within the meaning of s 38(2) of the 1987 Act. 4. The applicant’s pre-injury average weekly earnings (PIAWE) amount is $2,290. 5. The left C4/5, C5/6 and C6/7 foraminotomies and C4/5 anterior cervical discectomy and integrated cage fusion proposed by Dr Laban on 29 November 2024 is reasonably necessary medical treatment as a result of the aggravation of the applicant’s cervical spine condition on 25 April 2021 within the meaning of s 60 of the 1987 Act. The Commission orders: 6. The respondent to pay the applicant weekly compensation in accordance with s 38(6) of the 1987 Act from 25 October 2024 to date and continuing at 80% of his PIAWE of $2,290 (subject to indexation). 7. The respondent to pay the costs of and incidental to the left C4/5, C5/6 and C6/7 foraminotomies and C4/5 anterior cervical discectomy and integrated cage fusion proposed by Dr Laban on 29 November 2024 being reasonably necessary medical treatment as a result of the aggravation of the applicant’s cervical spine condition on 25 April 2021 within the meaning of s 60 of the 1987 Act. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant Mr Mark Sowden was employed by the respondent ComfortDelGro Corporation Australia Pty Ltd trading as Hunter Valley Buses Pty Ltd as a bus driver from November 2010 until his employment was terminated on 16 January 2025.
On 25 April 2021 the applicant arrived at the respondent’s depot at approximately 4.30am and attempted to open a sliding gate which he says was well known for getting easily stuck and had caused multiple injuries to his colleagues. He pushed the gate open and the gate rebounded on to him causing injuries to his neck and left shoulder.
Liability for the injury was initially accepted. The applicant’s treating specialist Dr James Laban’s recommendation of C4/5 anterior cervical discectomy and integrated cage fusion surgery was declined by a notice issued under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 on 8 December 2022.
A second s 78 notice was issued on 22 November 2023 declining the request for approval submitted by Dr Laban for direct spinal decompression or exposure surgery.
A third s 78 notice was issued on 12 September 2024 disputing liability for the applicant’s claim. Weekly payments ceased on 25 October 2024 and payment of medical expenses ceased on 12 September 2024. The decision to decline liability was maintained following internal review on 14 November 2024.
The applicant lodged an Application to Resolve a Dispute (ARD) with the Personal Injury Commission (Commission) on 3 December 2024 claiming weekly benefits compensation from 25 October 2024 and continuing, and the cost of the surgery recommended by Dr Laban.
The dispute was listed for conciliation conference and arbitration hearing on 14 March 2025.

ISSUES FOR DETERMINATION

The parties agree the following issues remain in dispute:
(a) whether the applicant has recovered from the aggravation of his cervical spine condition sustained on 25 April 2021;
(b) the extent and quantification of the applicant’s entitlement to weekly compensation for the period 25 October 2024 to date and continuing pursuant to s 38 of the Workers Compensation Act 1987 (1987 Act), and
(c) whether the applicant is entitled to the payment of medical expenses, including the cervical spine surgeries proposed by Dr Laban, pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing in the Commission on 14 March 2025. Ms Eraine Grotte of counsel appeared for the applicant instructed by
Mr Ahmad Naizmand, legal practitioner. Mr Greg Guest, legal practitioner, appeared for the respondent with Mr Douglas and Mr Cheung. Ms Elizabeth Horner was also present with the applicant.
During conciliation the parties agreed the applicant’s pre-injury average weekly earnings (PIAWE) is $2,290 and that the surgery proposed by Dr Laban is reasonably necessary.
During conciliation the following documents were admitted into evidence:
(a)    respondent’s application to lodge additional documents dated 7 March 2025;
(b)    applicant’s wages schedule dated 10 March 2025;
(c)    applicant’s application to lodge additional documents dated 10 March 2025;
(d)    email statement of Mr Ryan Farrell dated 25 October 2023;
(e)    clinical records of NHS Australia Medical Centre, and
(f)    applicant’s supplementary statement dated 11 March 2025.

I am satisfied 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 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 Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    respondent’s application to admit late documents (including its reply) (ALAD 1) dated 28 January 2025 and attached documents;
(c)    respondent’s application to lodge additional documents (ALAD 2) dated
7 March 2025 and attached documents;
(d)    applicant’s wages schedule dated 10 March 2025;
(e)    applicant’s application to lodge additional documents (ALAD 3) dated
10 March 2025 and attached documents;
(f)    email statement of Mr Ryan Farrell dated 25 October 2023;
(g)    clinical records of NHS Australia Medical Centre, and
(h)    applicant’s supplementary statement dated 11 March 2025.

Oral evidence

There was no application made to adduce oral evidence or to cross examine the applicant.

Applicant’s evidence

The applicant has provided his evidence in four statements.
In his statement of 23 June 2023 the applicant describes the injury on 25 April 2021. At approximately 4.30am he was opening a sliding gate at the respondent’s depot.
The gate was well known by his colleagues and the applicant for getting easily stuck and his colleagues had suffered multiple injuries from this gate.
On the day of the injury after some effort the applicant managed to push the gate open however it rebounded onto him and injured his neck and left shoulder. No one was present when the incident occurred.
The applicant reported the injury to his supervisor the following day and he worked that day. The next day he worked a shorter day and left work early due to the pain in his neck.
Dr Green issued a certificate of capacity on 3 May 2021 saying the applicant could return to work on light duties and his duties were initially limited to yard work.
C4/5 anterior cervical discectomy and integrated cage fusion surgery was recommended by Dr Laban, the applicant’s treating surgeon, following an MRI scan of the neck on 8 May 2021 and a repeat MRI in August 2022.
The applicant has undergone physiotherapy to treat his pain, he has received one steroid injection and he takes Nurofen and Panadeine Forte as well as Aspirin.
He experiences pain and restriction of movement in his neck, left shoulder and occasionally his upper back. The pain is aggravated by turning his neck, which can also cause pain in his shoulder and upper back. This impacts his everyday life including household duties, showering and changing his clothes, it interrupts his sleep, he struggles to do any form of exercise and he cannot drive at all anymore.
In his supplementary statement of 27 September 2024 the applicant sets out that he has worked for the respondent as a bus driver for 14 years on a permanent 10 hour shift, usually starting at 6.00am and often working 50 hours per week. He was working as a truck driver for approximately 30 years prior to working for the respondent.
The applicant describes an incident on or around 25 October 2023 when he tripped over in the yard. While walking in the yard with the mechanics’ supervisor Ryan discussing buses, Ryan interrupted him and pointed out the applicant’s shoelace was untied.
The applicant asked Ryan two or three times to tie his shoelaces for him as he was concerned about aggravating his neck by bending over. Ryan declined each time to do so. The applicant then decided he would walk over to sit down and tie his shoelace himself and as he was walking to sit down, he stepped on his shoelace and fell over onto the floor.
When he got up Ryan asked if he was ok. The applicant was quite embarrassed and insisted he was fine. To cover up his embarrassment he made a comedic remark that he was showing what happens when you do not tie your shoelace.
Ryan said he would have to report the incident to the office and the applicant said this was ok and he pointed to the camera and said that will be on the CCTV footage anyway as the respondent always watches what goes on with him in the yard.
The applicant does not believe he suffered any injury to his neck and left shoulder as a result of the fall and he does not recall any real variance in his symptoms.
The applicant disagrees that he deliberately tripped himself over in the carpark. He has not recovered since sustaining his initial injury on 25 April 2021. He is cautious of the ongoing injury to his neck and left shoulder and has no reason to intentionally cause himself more pain than he is already experiencing.
Dr Laban recommended the applicant undergo neck surgery and has warned the applicant about the risks of increasing pain, numbness and/or weakness with other treatment options.
Appointments with Dr Green stopped when the insurer no longer covered them. The applicant is currently seeing Dr Riju George at NHS Australia Medical Centre. He takes Celebrex, Gabapentin and Panadeine Forte and Paracetamol for pain.
Without medication the applicant would suffer significantly. The pain affects his daily life and makes it challenging to perform many basic activities. It provides much-needed relief and helps manage his symptoms and maintain some functionality. Without it his condition would greatly deteriorate, impacting his quality of life.
The applicant is willing to undergo the surgery if he must have it. He is willing to proceed with the surgery despite the potential risks Dr Laban has advised him of because he hopes it will provide more lasting relief from his symptoms, including greater range of movement and some pain relief.
He describes the impact on his activities of daily living including those described in his earlier statement. The pain means he is often agitated towards his family and others and his overall mental health is impacted. When he is not taking his medication his pain is quite intense.
The applicant has been told the only way to treat his injury is through surgical intervention as recommended by Dr Laban. Without the surgical intervention his condition is unlikely to improve and he will continue to suffer from significant pain and functional limitations.
Dr George does not believe the applicant has capacity for work. The applicant wants to work as he is worried about being cut off from the insurer. While he is eager to return to work and regain his financial independence, the applicant is also conscious of his health and the potential exacerbation of his injury.
On 16 February 2025 the applicant provides a further statement describing that he was terminated by the respondent on medical grounds on 16 January 2025.
Three rounds of cortisone injections have assisted in managing his pain but eventually the effects wore off.
When the applicant saw Dr Maistry on 11 February 2022 this was after a cortisone injection in or around November 2021 which had significantly helped reduce the pain for a few months. By about August 2022 the benefits of the injection had completely worn off.
The next injection in September 2022 did not assist in the same way as the first injection. The applicant continued to request further cortisone injections from the insurer on multiple occasions but these were denied.
The applicant has had 34 physiotherapy sessions which were initially helpful and assisted in alleviating the pain, but eventually he felt they began to irritate and aggravate his injury and he stopped the sessions.
The only option left for him is the surgery however there is no guarantee this will work.
In his fourth statement on 11 March 2025 the applicant comments on the email sent by
Mr Ryan Farrell on 25 October 2023. He strongly disagrees that he was trying to fall over on purpose or that he was generally joking around.
The applicant says he is not athletic enough to safely orchestrate a fall and the fall was genuine. He was not trying to be funny subsequent to the fall. The fall was embarrassing.
He pointed to the camera indicating the incident would have been recorded and management would see it regardless of whether it was reported or not. The applicant had no problems with the fall being reported to management.

Dr Peter Khong, independent neurosurgeon

Dr Peter Khong, neurosurgeon, provides a medicolegal report dated 24 October 2024.
Dr Khong’s opinion is that the applicant experienced an exacerbation of previously asymptomatic degenerative changes in his cervical spine as a direct result of his workplace injury. The employment was the main contributing factor to the acceleration and exacerbation of the degenerative changes in his cervical spine.
Surgery is appropriate. The applicant’s prognosis is poor without surgery and he will not improve without surgery. The applicant has exhausted all non-operative measures.
The injury has not resolved and the applicant remains significantly affected by the left sided neck and arm pain for over three years, and the exacerbation of the previously asymptomatic degenerative changes has not resolved.
Dr Khong’s opinion is that the applicant is currently unable to work due to persistent left sided neck and arm pain.

Dr James Laban, treating neurosurgeon

Dr Laban’s nine reports between 7 June 2021 and 28 November 2024 are relied on by the applicant.
Dr Laban on 7 June 2021 recommends CT-guided left C5, C6 and C7 perineural injections and physiotherapy for the applicant’s cervical spine multilevel bilateral foraminal stenosis, severe at C4/5, C5/6 and C6/7 and moderate at C7/T1 as shown on his MRI. Dr Laban would be happy to review him again for consideration of surgical intervention should his symptoms be ongoing despite that treatment.
The applicant is reviewed again on 14 September 2022 due to recurrent left neck pain radiating to his shoulder.
The previous injection settled his symptoms of left brachialgia for eight months. He has tried physiotherapy extensively. Dr Laban recommends C4/5 anterior cervical discectomy and integrated cage fusion. Pending approval Dr Laban requests a CT-guided left C5 perineural injection.
Dr Laban reports to the insurer on 10 November 2022 that the current injury is a continuation of the previous injury and work is a significant factor to this injury.
Dr Laban refers the applicant for nerve conduction studies on 21 July 2023.
On 21 July 2023 Dr Laban notes ongoing and increasing left-sided neck pain radiating to the shoulder and all the way down his arm with increased activity, significantly restricting his activities. The applicant confirms he does wish to consider surgery.
The first injection in November 2021 alleviated the applicant’s symptoms for some eight months, however the injection in September 2022 did not provide any significant benefit.
Dr Laban recommended a repeat injection, an up-to-date MRI and a bone scan.
On 1 November 2023 Dr Laban recommends nerve conduction studies and C4/5 anterior cervical discectomy and integrated cage fusion followed by left C4/5, C5/6 and C6/7 foraminotomies.
There was still ongoing pain following the repeat CT-guided left C5, left C6 and left C7 perineural injection. The MRI and bone scan show moderate C4/5 discovertebral disease with bilateral moderate to severe C4/5, C5/6 and C6/7 foraminal stenosis. The applicant again stated he wished to proceed with surgery.
In a report to QBE on 22 November 2023 Dr Laban comments that the proposed surgery is reasonably necessary as the applicant has had neck pain and left brachialgia since the work injury in 2021 and he has tried conservative treatment including physiotherapy, analgesia and multiple CT-guided injections but has ongoing symptoms which significantly limit his activities. The surgery is 85-90% likely to alleviate the consequence of this injury and there were no alternative treatments recommended.
On 9 April 2024 Dr Laban reports the applicant has a five-week history of increasing neck pain and upper left brachialgia. The nerve conduction studies confirmed bilateral carpal tunnel syndrome. A further CT-guided injection and MRI were requested.
Dr Laban reports on 24 April 2024 that there are no changes on the MRI and surgery is still recommended.
In his medico-legal report of 28 November 2024 Dr Laban confirms his opinion that the employment was the main contributing factor to the aggravation of the underlying degenerative changes which had previously not caused significant symptoms.
The applicant’s left shoulder and cervical injuries have continued since 25 April 2021 and the proposed surgery is reasonably necessary.

Other evidence

Also attached to the application to resolve a dispute are the clinical records of the Warnervale GP Super Clinic, where the applicant consulted Dr Stephen Green, printed on
26 August 2024.
These include notes of the work incident on 25 April 2021, the applicant’s return to work and increasing hours and duties, and that he had the first corticosteroid injections in November 2021. The applicant was doing normal duties at work by December 2021 and a final certificate was issued on 17 December 2021.
On 9 August 2022 Dr Green notes recurrence of neck pain in the last three weeks and he (I assume the applicant) thinks the corticosteroid injection has worn off. There is no new injury and the neck pain is radiating down the left upper limb to the hand. Hours were reduced as a result.
The clinical records show Dr Green continues to treat the applicant and provide certificates of capacity to 25 July 2024.
Dr Riju George’s medical certificates certify the applicant as unfit for work from
25 October 2024 to 21 December 2024.
Radiology and imaging reports between 8 May 2021 and 2 July 2024 are also attached to the application to resolve a dispute.
Dr Laban’s surgery referrals for direct spinal decompression or exposure and left C4/5, C5/6 and C6/7 foraminotomies in the amount of $10,355, and C4/5 anterior cervical discectomy and integrated cage fusion in the amount of $10,316.25 are dated 29 November 2024.

Dr George’s Centrelink medical certificates certify the applicant as having no capacity for work from 10 December 2024 to 10 June 2025.
Correspondence from the respondent regarding the applicant’s ongoing employment and the termination of his employment on 16 January 2025 are with the application to resolve a dispute, along with Transport NSW’s response to a direction for production dated
7 March 2025.
Payslips for the period 26 November 2024 to 21 January 2025 are also relied on by the applicant.

Respondent’s evidence

The documents attached to the reply include Dr Green’s referral to Dr Laban on
10 May 2021. Dr Green refers to the injury to the applicant’s neck when a gate he was closing recoiled leaving him with left upper limb pain and paraesthesia.
The MRI of the cervical spine of 6 May 2021 concludes there is multilevel severe degenerative change with multilevel foraminal stenosis and nerve root impingement with no convincing evidence of cord impingement.
On 16 August 2022 Dr Green again referred the applicant to Dr Laban due to a recurrence of his neck and left upper limb pain, and a repeat MRI scan shows a worsening of the left C4/5 disc protrusion.

Dr Jessica Maistry, occupational medicine registrar

Dr Maistry, Occupational Medicine Registrar, provides a report to the respondent on
4 March 2022 following her assessment on 11 February 2022 of the applicant’s fitness for duty with respect to his neck injury.
The clinical history taken of the injury includes neck and left shoulder soreness and burning pain radiating to the upper shoulder which impacted the applicant’s driving ability. He was placed on light duties until 17 December 2021 when Dr Green certified him as fit for pre-injury duties. Symptoms had resolved and there were no impacts reported on his activities of daily living. He was taking Aspirin.
Dr Maistry recommended a restriction in lifting capacity and avoiding repetitive above shoulder lifting tasks although he was fit to undertake the role of bus driver. The applicant was able to safely continue his work in the role of bus driver with suitable workplace adjustments and restrictions.

Dr Graeme Doig, independent orthopaedic surgeon

Dr Doig, orthopaedic surgeon, provided an independent medico-legal report to the respondent on 23 January 2023. He reports the applicant was downgraded in August 2022 to working six hours per day, five days per week as a bus driver.
At that time the principal problem was a twisting mechanism through the applicant’s cervical spine causing a soft-tissue injury to the trapezius muscle on the left side of the neck. The medical imaging confirms advanced, pre-existing, primary, idiopathic osteo-arthritis of the cervical spine with foraminal stenoses.
Employment is a substantial contributing factor to the aggravation of the pre-existing, advanced pathology in the cervical spine in Dr Doig’s opinion. The applicant continues to suffer from symptoms as a result of the work-related aggravation to the cervical spine.
At that time the applicant was not keen on proceeding with the proposed neck surgery.
Capacity for work was reduced as a result of the work-related aggravation to the cervical spine and the effects of the injury had not ceased.
Dr Doig carried out a follow-up assessment on 2 December 2023 and provides a further report dated 13 February 2024.
The applicant continues to complain of constant, left-sided neck pain with radiation to his upper arm. The pain interferes with his sleeping patterns. He was regularly using Nurofen and Panadeine Forte to help him sleep. His physiotherapy had finished.
The applicant had not recovered from the injury and most likely would not do so in the future.
Dr Doig concludes based on his examination that with worsening radicular symptoms in the left arm not responding to conservative management, the proposed surgery is now appropriate.
Any need for surgery appears to be a result of the work-related injury which has aggravated and rendered the pre-existing pathology symptomatic.
On 7 August 2024 Dr Doig provides a supplementary report having reviewed the nerve conduction studies of 29 November 2023, Dr Maistry’s report of 4 March 2022 and CCTV footage of the applicant’s fall on 25 October 2023.
Dr Doig notes the applicant presented with no obvious, functional restrictions in his cervical spine and left shoulder on the CCTV footage.
Dr Doig says “[a]s you have noted in your letter of referral, Mr Sowden appears to have deliberately tripped himself over in the car-park, in an episode that could be described as sky-larking.”[1]
[1] ALAD 1 p 27.
The doctor notes Dr Maistry’s report in March 2022 and that the applicant’s symptoms appear to have resolved.
Dr Doig concludes that in his opinion the applicant’s current symptoms, incapacity and need for surgery is related to the progression of an underlying, cervical-spine condition, being primary, idiopathic osteo-arthritis and is not related to the incident of April 2021, which appears to have resolved based on Dr Maistry’s assessment of March 2022 and the CCTV footage of October 2023 respectively.
The CCTV footage of 25 October 2023 shows the applicant walking across the respondent’s yard with a co-worker and apparently tripping and falling. He gets back up on his feet, ties his shoelace, he continues to walk across the yard and looks up at the camera.
The clinical records of the Warnervale GP Super Clinic printed on 14 February 2025 are relied on by the respondent. These note ongoing neck pain radiating down the left upper limb and changes in pain medication until the case is closed as of 12 September 2024. The applicant is advised to follow up with his local general practitioner.

Other evidence

The email statement of Ryan Farrell sent to Jonathan Ryan and David Circus is dated
25 October 2023 at 10.08am.
Mr Farrell describes walking across the yard having just parked a bus when the applicant approached him asking him to tie up is shoelace. Mr Farrell said “you’ve got to be taking the piss I’m not tying your shoe, use the step of a bus or something” and the applicant told him he cannot tie his own shoelace because of his neck and his loose shoelace would cause a trip hazard.
Mr Farrell says he told the applicant to tuck it into his shoe and tie it properly when conditions suit. The applicant insisted he tie his shoe and Mr Farrell declined. The applicant then said “oh well if I trip…” then proceeded to obviously stand on the loose shoelace and fall. The applicant then tied it himself, pointed to the camera and said “they’re probably watching me up there.” Mr Farrell told him it was not his smartest move and the applicant laughed.
Mr Farrell said he would need to report it as a near miss and the applicant said it would be his fault as he did not tie his shoe for him.
Mr Farrell was more confused why someone with “shoulder and neck pain” would even joke about it.
The clinical records of NHS Australia Medical Centre printed on 10 March 2025 were also admitted into evidence.
Dr George at the NHS Australia Medical Centre treats the applicant’s diabetes condition, carried out commercial licence medical assessments and completes RTA commercial licence medical forms. The applicant is doing well with his diabetes and losing weight in 2020, and has no concerns driving in June 2021.
On 26 May 2022 Dr George sees the applicant again for his commercial driving medical and notes his diabetes control is poor and he has full range of motion in his lumbar, thoracic and cervical spine and good range of motion in his hips, knees and shoulders.
At the next consultation on 24 August 2022 Dr George carries out a diabetes review and notes the applicant is doing exceptionally well, he has lost about 8kg and is keeping very active, although he knows he has a long way to go yet.
The applicant next sees Dr George in May 2023 for referrals to Dr Wong and Dr Wakil and as his commercial medical is due. Dr George notes a long visit on 24 September 2024 when the applicant is under a great deal of stress as his workers compensation case is closed.
On 25 October 2024 the applicant agrees he is not fit to drive a commercial vehicle. On
10 December 2024 Dr George notes the applicant would like to apply for a Centrelink certificate and he is unable to return to his normal job.

Applicant’s submissions

The applicant made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.
The applicant has an accepted neck and left shoulder injury which in Dr Doig’s opinion is not insignificant. Dr Doig describes the injury to the applicant’s left shoulder, neck and trapezius muscle in his report of 13 February 2024.
At approximately 4.30am the applicant was opening a spring-loaded gate at the depot that was notorious for sticking, and there had been multiple injuries over the years, despite this the heavy steel gate remained in situ. After some effort the applicant managed to free up the gate by pushing it and unfortunately it rebounded due to the spring-loaded mechanism, so there is a lot of force involved.
The applicant’s body was spun around straining the left side of his neck, and there is no dispute about this. There is no evidence that contradicts the applicant’s description of the incident and the injury was accepted.
The applicant has gone back to work, he has tried to work, he has tried to drive and increase his hours over a period of time. He has undergone conservative treatment and he has gone to the doctor the employer sent him to, Dr Green.
Dr George is the applicant’s personal general practitioner but he does not go to Dr George for treatment in respect of this injury, so he is doing everything that he needs to do to address the injury and to keep his employment over a period of time.
When you look at all of the material and see what the applicant has done in trying to keep his job, trying to accommodate the injury, undertaking the conservative treatment and then being guided by his treating surgeon Dr Laban, the applicant has not been discredited in any way.
The later incident on 25 October 2023 is clear on the CCTV footage. In the minute and a half recorded the applicant falls and gets up. This is not an intervening act and it is not suggested that it is. The applicant does not even complain to the doctors about it. There is no record of it in the historical clinical notes and the applicant says it is just a red herring.
The plethora of medical material shows that the applicant has not recovered from the injury and that it was significant.
Dr Laban was recommending surgery prior to the incident on 25 October 2023. Dr Doig was in fact agreeing with that and then he changes his opinion.
The applicant says in his statement of 23 June 2023 that he currently experiences pain and restriction of movement in his neck, left shoulder and occasionally in his upper back. It impacts his everyday life.
Dr Green takes a history of the injury on 3 May 2021, eight days later. The sliding gate hit a rubber stopper and rebounded and it forced left humerus and shoulder into extension. It can be seen from this history that it would have been a very forceful incident.
Dr Green makes the assessment of cervical radiculopathy. Dr Green notes a sudden onset of pain in the left shoulder, and last night noted neck pain, paraesthesia in the left upper limb to wrist exacerbated by left lateral neck rotation and neck extension. There is no suggestion that this is not credible or inconsistent with what happened. Dr Green says there is cervical radiculopathy.
The applicant saw Dr Green a week later and pain is noted in the left upper limb while driving. It appears the applicant had returned to work on restricted duties.
The MRI of 6 May 2021 shows multilevel severe degenerative change with multilevel foraminal stenoses and nerve root impingement, which explains the paraesthesia and radiculopathy.
Dr Green notes on 24 May 2021 the applicant’s left upper limb symptoms improve when he tilts his neck to the right side, he has been in the bus as a buddy, and bouncing around in the bus aggravates left upper limb symptoms. Dr Green referred the applicant to Dr Laban.
Dr Laban on 7 June 2021 diagnoses left C4/5, C5/6/ and C6/7 severe foraminal stenosis on background of multilevel bilateral foraminal stenosis.
Dr Laban reviews the MRI and recommends conservative treatment of CT-guided left C5, C6 and C7 perineural injections and physiotherapy. The doctor reports the applicant is suffering with neck pain and left brachialgia, and pain radiates from the neck to the left shoulder, biceps, triceps and dorsum of the forearm.
The applicant continues to regularly consult Dr Green. He receives physiotherapy treatment, his pain settles and he is working increasing hours with restrictions.

On 30 September 2021 the physio wants to do more. Dr Green notes a telephone conversation with Dr Cameron including “try to increase hours if possible”[2] and “planning to be back to full duties in five weeks”.[3]
[2] ARD page 72.
[3] ARD page 72.
On 11 October 2021 Dr Green notes the applicant developed left sided neck pain including trapezius three nights ago, and reduce to eight hours a day, not normal hours as sometimes he does up to ten hours driving the bus, and he had to leave work early three days ago with rough road, bad suspension, and he is off today.
The applicant had a corticosteroid injection in the week of 5 November 2021 and on
19 November 2021 Dr Green notes the applicant is to restart physiotherapy next week.
On 30 November 2021 Dr Green records that the applicant was to try normal shift and change to normal hours not eight hours, so he is improving.
Physio ceased by 17 December 2021 as it was causing a sore neck. The applicant was doing normal duties at work and could lift things at home.
There is then nothing about the applicant’s neck between December 2021 and August 2022.
The applicant did not go back to the doctor for about nine or ten months after he has a corticosteroid injection because there is an improvement and there are no complaints during that time.
Dr Green notes on 26 August 2022 the applicant had a recurrence of neck pain in the last three weeks and thinks the corticosteroid injection had worn off. There is no new injury and the applicant had neck pain radiating down left upper limb to his hand.
Dr Laban on 14 September 2022 diagnoses C4/5 left paracentral disc protrusion with bilateral foraminal stenosis (left worse than right) and he recommends C4/5 anterior cervical discectomy and integrated cage fusion, just over a year prior to the incident in October 2023.
There is no change in the recommendation of surgery following the incident in October 2023. There is just a continuation of the symptoms from the work injury in 2021.
Dr Laban notes the previous C4/5, C5/6 and C6/7 injection settled his symptoms of left brachialgia for eight months, however he now has recurrent left neck pain radiating to his shoulder and very occasional symptoms radiating down towards the wrist. The applicant has tried physiotherapy extensively.
On 16 September 2022 Dr Green notes Dr Laban has requested a corticosteroid injection and approval for surgery, and Dr Green says left upper limb pain, and query radiculopathy.
The applicant had an injection noted by Dr Green on 30 September 2022 however the doctor notes on 7 October 2022 it has only provided temporary relief. It does not seem to give the type of relief that the applicant previously had. There is then a record of the flare up of pain after the injection on 18 October 2022.
On 10 November 2022 Dr Laban provides a report to CDC Self-Insurance commenting that the applicant is likely to return to full time pre-injury duties three months post-surgery.
Dr Laban says work is a significant factor to this injury.
There is no reason why that would not be accepted the applicant submits as he has shown he is keen to go back to work, he wants to drive and he wants to get better.
Dr Green notes on 22 May 2023 the insurer is liaising with Dr Laban and “wants to try driving.”[4] Dr Green notes driving was aggravating upper limb symptoms and the applicant is not to drive.
[4] ARD page 83.
Dr Green says on 1 June 2023 the applicant needs C4/5 discectomy and fusion. The applicant has ongoing left-sided neck pain and pain radiating down the left upper limb. This is four months before the incident in October 2023.
There is no suggestion that the applicant is malingering or that his condition is not as bad as he says it is. This is not just based on self-reporting as the MRI shows nerve impingement.
There is a flare up of neck and left upper limb pain on 14 August 2023 when the applicant is driving at work, and he is awaiting approval for an injection.
The applicant had an injection on 25 September 2023 and two injections on
26 September 2023 but still reports to Dr Green he has ongoing pain at night.
After the applicant’s fall at work on 25 October 2023 he consults Dr Green on
30 October 2023 and makes no complaint of anything as a result of that fall. He is coping with four hours including two hours of driving.
The applicant continues to consult Dr Green and he is still driving buses with ongoing neck pain.
Dr Laban reports to Dr Green on 1 November 2023 that the applicant reports some improvement in his symptoms following the repeat CT-guided left C5, left C6 and left C7 perineural injection but he still has ongoing pain. He has reduced his activity and takes Panadeine Forte before bed.
The foraminal stenosis is most severe on the left. Dr Laban discussed the imaging and the applicant wishes to proceed with the surgery Dr Laban recommends.
The MRI report of 16 August 2022 comments that there are relatively similar appearances to the previous examination with left-sided foraminal compromise greatest at C4/5 and C5/6, but there has been greater deterioration at C4/5 with greater left paracentral disc protrusion.
The MRI of 29 September 2023, a month before the incident of October 2023, shows degenerative changes have only mildly increased from the prior study, with a history of increased neck pain and left arm pain.
The MRI report of 11 April 2024 includes “History: increased neck pain and left brachialgia,”[5] C4 is problematic and there are multiple levels of potential nerve root impingement with multilevel foraminal narrowing. There is no significant interval change compared to the previous MRI on 29 September 2023.
[5] ARD page 109.
The updated clinical notes of Dr Green include on 26 June 2024 that the applicant had a neck injection yesterday, he has to drive 45 minutes to work and is then expected to drive at start or end of shift, and he is unable to drive today. The next injection is 2 July 2024 so he will be unfit on 3 July 2024.
Again there is no significant improvement with the injection and Dr Green, the employer’s doctor, again notes on 7 August 2024 that he is still awaiting insurer approval of Dr Laban’s operation.
There is no suggestion the surgery is not reasonably necessary treatment arising from the work injury, it is consistent and there is no reason why you would not accept what the applicant says. There is nothing that would discredit him.
Dr Green records in August 2024 severe neck pain radiating down the left upper limb.
On 17 September 2024 Dr Green notes the applicant’s case has been closed as of
12 September 2024.
Dr Laban reports to Dr Green on 9 April 2024 that the applicant has a five-week history of increasing neck pain and upper left brachialgia. He refers to the nerve conduction studies and requests a repeat CT guided injections and an MRI.
He again recommends the surgery on 24 April 2024.
Dr Doig says in his reports there is an underlying condition that was asymptomatic and is now symptomatic because of the work injury. The symptoms do not abate.
On 28 November 2024 Dr Laban confirms the applicant’s employment was a substantial factor to the injury and the main contributing factor to the aggravation of the underlying degenerative changes which had previously, as Dr Doig agreed, not caused significant symptoms.

Dr Laban says the proposed surgery is reasonably necessary, which is not in issue.
There is nothing in the records that show the applicant had any previous problems with either his left arm or his neck.
The clinical notes and Dr Laban, the treating specialist’s opinion, show ongoing problems from the time of the work incident that caused the manifestation of symptoms that never abated. They fluctuated and initially got better with physiotherapy and with injections but they did not abate and kept coming back, particularly given the work he was doing if he attempted driving.
The insurer accepted the claim until 12 September 2024 when it issued a s 78 notice. Ongoing liability is disputed on the basis that the applicant is no longer suffering from any injury within the meaning of s 4 and reliance is placed on the report of Dr Maistry, commissioned by the respondent to give an opinion on fitness for work, a review of the CCTV footage in October 2023 and Dr Doig who expressed the view that any aggravation had ceased.
Dr Maistry, occupational medicine registrar, takes a clinical history in her report of
4 March 2022 and refers to the applicant having physiotherapy and three cortisone injections into the neck as per Dr Laban. The applicant reports he has declined spinal surgery and the neck discomfort and radicular symptoms settled well.
That is true for a period of time.
The applicant was initially on a graded return to work plan starting at two hours which gradually increased to over eight hours to nine hours, and he was then cleared to return to pre-injury duties on 17 December 2021.
By August 2022 he has had a recurrence of neck pain radiating down the left limb, and as
Dr Green says there is no new injury and so there is no break in the causal connection. The MRI reports show a deterioration in the condition.
Dr Maistry’s opinion may have been relevant at a particular point in time but it cannot have any relevance to a decision made in September 2024.
The applicant’s submission is that Dr Maistry’s opinion should be put to one side because it does not assist in determining whether the applicant has recovered.
The other two pieces of evidence the respondent relies on to argue the applicant has recovered are Dr Doig’s opinion and the CCTV footage of October 2023.
Dr Doig’s opinion in his report of 23 January 2023 is that the worker continues to suffer from symptoms as a result of the work-related aggravation of the cervical spine and his presentation is consistent with an aggravation within the place of employment. The injury has rendered the previously asymptomatic pathology symptomatic and there is no evidence of prior problems. Employment is a substantial contributing factor to the aggravation of the pre-existing advanced pathology in the cervical spine.
Dr Doig found objective evidence of radiculopathy in terms of the only neurological finding being a reduced left biceps jerk which would normally indicate an issue at the C5/6 level.
The doctor’s opinion is that the applicant has current reduced capacity for employment as a result of the work-related aggravation and unless there is evidence to the contrary the effects of the injury have not ceased.
On 13 February 2024 Dr Doig provides a further report. He examined the worker on
21 December 2023 and confirms aggravation of pre-existing degenerative changes and deteriorating radiculopathy in the left arm.
The pathology appears to have been aggravated and rendered permanently symptomatic by the incident at work. The worker has not recovered from the injury and most likely will not do so in the future. He is not fit to return to pre-injury duties.
Dr Doig’s opinion is that the proposed surgery is now appropriate.
Dr Doig views the CCTV footage of the incident in October 2023 and answers the questions put to him in his report of 7 August 2024.
The doctor comments on Dr Maistry’s report of March 2022 with a history that the applicant denies any current, neck, back and shoulder discomfort or numbness.
Dr Doig is asked to view the CCTV footage and it is said the footage shows the applicant deliberately tripping himself over in the car park in what could be described as skylarking.
The applicant’s submission is that Dr Doig is being guided as he is told the applicant deliberately tripped himself. Dr Doig does not re-examine the applicant and does not put any of this to him.
Then it is put to Dr Doig that if one accepts the applicant’s symptoms had resolved by March 2022 is it more likely that his current symptoms relate to the progression of his underlying symptoms.
Again this is leading the doctor to a conclusion in the applicant’s submission, and it is not a report that has been produced in a fair climate. The report cannot be considered to be neutral.
Dr Doig says as is noted in the letter of referral the applicant appears to have deliberately tripped himself up in an episode that could be described as skylarking. Dr Doig then notes the applicant consulted Dr Maistry in March 2022 whereby his neck and shoulder symptoms appear to have resolved and he draws his conclusions.
The applicant urges that not much weight be given to this report as the doctor has been guided to only a few pieces of selected evidence. He is told symptoms have resolved and he does not analyse all of the materials himself. He does not re-examine the applicant. The conclusion cannot be considered to have any probative value.
The evidence of the applicant should be preferred and there is no reason why he should not be accepted as a credit worthy witness.
Dr Khong provides a report dated 24 October 2024 and he examines the applicant on that day.
This report is consistent with that of Dr Laban and with the clinical notes that record persistent left sided neck and trapezius pain radiating to the posterior lateral left arm. There is an exacerbation of previously asymptomatic degenerative changes as a result of his employment as a bus driver. Surgery in Dr Khong’s opinion is reasonably necessary as a result of the work-related injury and it has not resolved.

Respondent’s submissions

The respondent made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.
The respondent first dealt with criticism of Dr Doig’s third report. It is not fair to say Dr Doig was lead to that conclusion because he was provided with the material which is essentially the report of Dr Maistry.
Dr Maistry examined the applicant on 11 February 2022 and the symptoms and the status in the history given to Dr Maistry was at that stage the applicant denied any neck, back or shoulder discomfort or numbness and associated neurological symptoms.
The worker’s history to Dr Maistry is that he feels his symptoms have resolved, and remember at that stage he was back doing his pre-injury duties which he had been assessed as being fit for on 17 December 2021.
Dr Doig was not being directed. There was specific evidence, the evidence the worker gave to Dr Maistry of how he was feeling at that time, which is consistent with his work history at that time, performing his pre-injury duties.
The significant issue in this case is that there no complaint of any symptoms in the neck or problems in the arms at all between December 2021 and August 2022.
There is no real issue that the applicant, looking at the MRI scans, is suffering from substantial degenerative changes throughout his cervical spine. That was the diagnosis and the case is that that was aggravated in an incident.
It is important to note Dr Laban’s opinion in July 2023 in respect of the diagnosis is that the applicant has left brachialgia presumably from multilevel cervical foraminal stenosis and a work-related injury.
These conditions can be separated and the treating specialist clearly identified very significant problems going on with the cervical spine, and the respondent accepted the original diagnosis of an aggravation of those problems. Liability was accepted and payments were made.
The respondent’s submission is that the substantial gap in treatment of any aggravation caused by the work injury shows that it had ceased.
It is quite clear in Dr Green’s clinical records that the applicant as of 17 December 2021 had improved, got better, and returned to his pre-injury duties.
The applicant is still left with a very significant disorder in the cervical spine. Foraminal stenosis does not go away and it is a progressive disease, which is reflected in the second MRI.
That MRI notes that there has been a progression and this is what is going to happen until the applicant is now at the stage where this underlying disease needs to be treated by surgery.
What the clinical records clearly show is that as of December 2021 he is fit for work.
The applicant’s first complaint again of any neck pain is made to Dr Green when in August he talks about there having been a recurrence of neck pain for three weeks. There has been a significant period of time where the worker returns to his normal work of driving up to 10 hours a day, turning and looking.
Dr Khong talks about the nature of the work causing a lot of turning of the head.
There is a period of many months with no problems.
Dr George, the treating doctor, during this period records on 26 May 2022 that he examines the applicant and notes he had a full range of motion in his lumbar, thoracic and cervical spine and his hip, knees and shoulders.
The applicant at the time was on an exercise programme to lose weight as he had issues with his weight and was told to lose weight and he has been doing so.
The history given to Dr George on 24 August 2022 is that he is doing exceptionally well and has lost about 8 kilos and is keeping very active.
The applicant has seen his own doctor and given no history at all of any problems with his neck or of any symptoms down his arm.
That is somewhat at odds with the applicant’s statement about these ongoing problems.
Dr Khong’s opinion is based on a history the respondent says is plainly incorrect, that the injury has not resolved and he remains significantly affected by his left sided neck and arm pain and he has now had that for over three years since his work place injury.
Dr Khong is examining the applicant in October 2024 when the respondent says there has been an established progression of the underlying disorder, and there is no issue that he requires surgery at this stage.
The implication that the applicant has been significantly affected for over three years the respondent submits is plainly not right. Dr Khong has not been given the clinical records which demonstrate that in December 2021 he was cleared fit for pre-injury duties and he did not have any problems with his neck until he sees the doctor again in August 2022.
The respondent’s submission is that not much weight can be placed on Dr Khong’s opinion.
Dr Maistry in the relevant period examines the applicant and takes a history from the applicant himself that he felt he had recovered. He was not having any symptoms at all at that stage. That obviously continues because he has seen his own treating doctor and had an examination. He has range of movement and he was fine in respect of his neck when he was actually examined.
One would have thought if he was having any complaints at that stage, if the injury was ongoing, that it would have been realised on physical examination at that stage and it was not.
In August 2022 the applicant had gone back to work and the doctor gives a history that he has been experiencing neck pain for three weeks, and this is on the applicant’s own evidence. It is clearly described as a recurrence of neck pain. It has come back again.
The applicant has an underlying progressive disease and at some stage he was going to have problems with his neck and the respondent says that is the case here.
It is not because of this injury in the respondent’s submission. His injury was limited in its effect. It caused an aggravation to the underlying degenerative disease which is very significant over many levels of his cervical spine, but that aggravation ceased by December 2021.
The point of the CCTV footage goes to the note made by Dr George at around that time. The respondent submits the applicant was skylarking. If you look at the footage carefully the applicant steps with one foot towards the other foot so that it goes on the untied lace then he falls over, and although there is no sound in the video both arms are up in the air as if it was a comical performance.
The respondent is not saying there is a further injury but it goes to whether there are pre-existing or ongoing complaints caused by this work injury at that time. He is certainly seeing the doctor and he has made some complaints of ongoing neck pain, but how significant they are, that is the question.
The applicant gets up and ties his shoelace. As the precursor to this discussion with the fellow workmate, he asked him to tie his shoelace because he was having problems with his neck.
In his statement the applicant says he used to be quite active and he struggled to do any form of exercise for more than five or ten minutes without experiencing pain but that was not the case in early 2022 when he was examined by Dr Maistry, and when Dr George examined him when he was going really well in his exercise programme.
The evidence reflects the state of the applicant’s serious neck problems at a later stage but not during the relevant period.
In the respondent’s submission that is what has to be distinguished, what is causative of the current problems. There is no issue he has problems with his neck and that he needs the surgery proposed. He has five levels of significant issues in his cervical spine with substantial degenerative changes.
The findings in the third MRI are explained again by the degenerative changes alone. The first MRI confirms very early that there is multilevel severe degenerative change with multilevel foraminal stenosis. This is a very serious pre-existing condition which has been identified by the MRI.
The respondent submits that the applicant has a serious underlying cervical spine problem and there was an injury at work that aggravated that problem. It probably did not take much to aggravate it as it is a very serious problem, but certainly by December 2021 the evidence supports that he had recovered when he returned to his pre-injury duties.
No issues were recorded and he was physically examined not only by Dr Maistry on behalf of the respondent to see if he was okay for a long term return to work, but by his own treating doctor Dr George in May 2022.
With respect to the effect of the injections, it was not Dr Green’s opinion but it was the opinion of the applicant and he hypothesized about the corticosteroid injection. When he was examined he was pain free and he was back on pre-injury duties for a substantial period of time without any complaint at all.
Any aggravation caused by the work injury had ceased and therefore the requirement for surgery does not arise from the work injury. Even though he requires the surgery it is not related and it is not causative.
The medical treatment is not reasonably necessary because it is not caused by the work injury.

Applicant’s submissions in reply

Dr Maistry’s report dated 4 March 2022 is within a few months of the two corticosteroid injections in November 2021. The applicant is unfit, then restarts physiotherapy and again tries eight hours driving, with normal hours 10 or so hours a day on 30 November 2021.
On 17 December 2021 he has ceased physio as it was causing a sore neck and he says he has been doing normal duties and can lift things at home.
When he goes back to Dr Green on 9 August 2022 with recurrence of neck pain in the last three weeks he thinks the corticosteroid injection has worn off.
That evidence should not be disregarded in the applicant’s submission as he is probably in the best position to know what is going on with his body.
Dr Green also records no new injury and his neck pain is radiating down the left upper limb.
It is the same manifestation of symptoms, neck pain, trapezius and the left upper limb. It is not the degeneration of the multilevel problems in his neck. Dr Laban clearly says this is the same injury and he has not recovered.
Dr Maistry was commissioned to provide a report in relation to fitness for duty and the inherent requirements of the job of bus driving, that is really her focus. The doctor records he had physiotherapy and three cortisone injections, the applicant had declined surgery and his symptoms had settled with conservative management of physiotherapy and the cortisone injections.
The applicant is not walking back his symptoms, he wants to keep his job, he wants to work.
In March 2022 Dr Maistry records, only a few months after the steroid injections, that he denies any current neck symptoms. It is only a snapshot at that time.
It is a recurrence, not a new injury, and it is exactly the same type of symptoms. The MRI is showing a deterioration. He was asymptomatic before his injury and this was a significant injurious event.
The applicant’s submission is that on the balance of probabilities the evidence shows he has not recovered. There was a period when the conservative treatment was helping but it then stopped working and in fact the two corticosteroid injections did not help him later on.
Dr Doig says nine months later that the applicant has the same injury that rendered his condition symptomatic and aggravated the underlying pathology and the presentation is consistent.
The weight of evidence is that the aggravation was continuing and this incident of skylarking does not show anything. The pain still exists and the requirement for surgery still exists.

FINDINGS AND REASONS

Has the applicant recovered from the aggravation of his cervical spine condition on
25 April 2021

A disease injury in accordance with s 4(b)(ii) of the 1987 Act means the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only where the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration.
There is no dispute the applicant has significant degenerative changes present in his cervical spine which were aggravated by the incident at work on 25 April 2021, and the employment with the respondent was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of that disease.
The respondent’s submission is that the applicant recovered from the aggravation of his cervical spine condition by December 2021.
I find the applicant has not recovered from the aggravation of his cervical spine condition on 25 April 2021 for the following reasons.
In the applicant’s statement of 27 September 2024 he states he has not recovered since sustaining his initial injury on 25 April 2021 and he has an ongoing injury to his neck and left shoulder. He has continued to experience pain since sustaining the injury on 25 April 2021 and his condition has only seemingly worsened.
Dr Green on 9 August 2022 notes the applicant has had a recurrence of his neck pain in the last three weeks and there is no new injury.
Dr Laban’s opinion is that the applicant has not recovered from the aggravation of his cervical spine condition on 25 April 2021. He reports the following;
(a)    on 14 September 2022 the applicant now has recurrent left neck pain radiating to his shoulder;
(b)    on 10 November 2022 the current injury is a continuation of the previous injury and work is a significant factor contributing to this injury;
(c)    there is ongoing and increasing left-sided neck pain radiating to the shoulder on 21 July 2023;
(d)    on 22 November 2023 the applicant has had neck pain and left brachialgia since the time the gate recoiled on him at work in 2021, and
(e)    on 28 November 2024 the applicant’s left shoulder and cervical injuries have continued since 25 April 2021 when his ongoing neck pain and left brachialgia commenced.
I afford weight to Dr Laban’s opinion as the treating specialist who regularly reviews the applicant.

Dr Laban’s opinion is supported by Dr Khong, who on 24 October 2024 opines the applicant has had left sided neck and arm pain for over three years and the injury has not resolved.
I do not accept the respondent’s submission that not much weight ought to be placed on
Dr Khong’s opinion due to it being based on an incorrect history.
The respondent submits Dr Khong was not provided with clinical records which demonstrate the applicant was cleared fit for pre-injury duties in December 2021 and had no problems with his neck until August 2022.
Dr Khong does not identify the documentation forwarded to him in his report.
Dr Khong does refer to the history provided to him by the applicant; he saw Dr Laban, he had injections in November 2021 which helped his pain a lot for approximately seven months, and he returned to work on light duties and reduced hours. When his pain returned the applicant went back to see Dr Laban and had another injection on 29 September 2022.
Dr Khong refers in his report to the s 78 notice of 12 September 2024, which includes a reason for denying liability as being that the applicant is no longer suffering from any injury, and Dr Doig’s three reports.[6]
[6] ARD page 36.
In turn, in his report of 7 August 2024 Dr Doig discusses Dr Maistry’s report of 4 March 2022 and the CCTV footage of 25 October 2023
While Dr Khong does not refer to clinical records, he has taken the applicant’s history and reviewed the three reports of Dr Doig that include for example, consistently with the applicant’s history, that the applicant had returned to pre-injury duties in December 2021 and was down-graded again in August 2022.[7]
[7] Reply page 13.
I accept Dr Khong’s opinion is formed on the basis of an accurate history. Dr Khong has identified the facts and reasoning process to justify his opinion.[8]
[8] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11.
The respondent’s submission that the aggravation of the applicant’s cervical spine condition on 25 April 2021 had ceased by December 2021 is based on the following:
(a)    the applicant made no complaints of any symptoms between December 2021 when the applicant returned to pre-injury duties and August 2022;
(b)    Dr Maistry examined the applicant on 11 February 2022 and at that stage the applicant denied any neck, back or shoulder discomfort or numbness and associated neurological symptoms;
(c)    Dr George examined the applicant on 26 May 2022 and noted he has full range of motion in his lumbar, thoracic and cervical spine, and good range of motion in his hips, knees and shoulder;
(d)    Dr George notes on 24 August 2022 the applicant is doing exceptionally well with respect to his weight loss programme and is keeping very active;
(e)    the effect of the corticosteroid injection wearing off in 2022 was the opinion of the applicant and not of Dr Green;
(f)    the CCTV footage of 25 October 2023 shows the applicant with no obvious, functional restrictions in his cervical spine and left shoulder at a time he complains of pain to Dr Green;
(g)    Dr Doig was not lead or directed in forming his opinion that the applicant’s current symptoms, incapacity and need for surgery is not related to the incident of April 2021 which appears to have resolved, and
(h)    the findings of the third MRI in particular are explained alone by the degenerative changes progressing.
The applicant’s submission is that he did not complain of symptoms of his cervical spine condition between December 2021 and August 2022 due to the beneficial effects of the CT-guided injections carried out in November 2021.
I accept that submission as the weight of evidence supports it.
The applicant’s evidence in his statement of 16 February 2025 is that he had his first round of cortisone injections in or around November 2021 which significantly helped reduce the pain he was experiencing, and he believes the effect of these injections lasted for a few months.
Dr Khong on 24 October 2024 notes the applicant’s history provided to him that he had left C4/5 and C5/6 foraminal injections on 1 November 2021 and a left C7 perineural injection on 3 November 2021 which helped the pain a lot for approximately seven months, and he returned to work on light duties and reduced hours. The applicant’s pain returned and he went back to see Dr Laban.
Dr Green records on 9 August 2022 that the applicant had a recurrence of neck pain in the last three weeks, and the applicant (it is assumed) thinks the corticosteroid injection has worn off.
While I agree with the respondent’s submission that the effect of the injections wearing off over time as recorded by Dr Green is the applicant’s opinion, this is supported by Dr Laban.
Dr Laban comments on 14 September 2022 that the previous left C4/5, C5/6 and C6/7 injections carried out in November 2021 settled the applicant’s symptoms of left brachialgia for eight months, however he now has recurrent left neck pain radiating to his shoulder. He comments on this again in his report of 21 July 2023.
I accept based on the evidence that the effect of the CT-guided injections in November 2021 reduced the symptoms of the aggravation of the applicant’s cervical spine condition, and that the effect had worn off by August 2022 when he consulted Dr Green about the recurrence of his neck pain.
As the respondent submits, Dr Maistry and Dr George do not record symptoms of the applicant’s cervical spine condition on physical examination in 2022. This is explained by the alleviation of symptoms following the injections in November 2021.
Dr Maistry examined the applicant on 11 February 2022, some three months after the November injections.

Dr Maistry reports on 4 March 2022 that the applicant denied any current neck, back or shoulder discomfort or any numbness or associated neurological symptoms. He feels his symptoms have resolved and he is at his pre-injury level since his final clearance on
17 December 2021.
The applicant in his statement of 16 February 2025 says when he saw Dr Maistry he indicated that due to the cortisone injections his symptoms appeared to be settled.
Dr Maistry records in her report that the applicant reports his neck discomfort and radicular symptoms settled with the conservative management of physiotherapy and the cortisone injections.
The evidence supports the applicant’s submission that at the time he was examined by
Dr Maistry the symptoms of his condition had been alleviated by the November 2021 injections.

The applicant continued to consult Dr Green regarding the fluctuating pain from his work injury.
Dr George examined the applicant on 26 May 2022, some six months after the November injections, when the applicant consulted him about a commercial driving medical assessment.
At this consultation Dr George records “full ROM lumbar, thoracic, and cervical spine. Good ROM hips, knees and shoulders.”[9]
[9] NHS Australia Medical Centre records page 27.
The evidence supports that at the time he was examined by Dr George the symptoms of the applicant’s condition has been alleviated by the November 2021 injections.
The respondent submits the note made by Dr George on 24 August 2022 that the applicant was doing exceptionally well with his weight loss programme contradicts the evidence that he continues to experience significant neck and left shoulder pain.
Dr George records he had a long discussion with the applicant on 26 May 2022 about the implications of his poorly controlled diabetes condition. There is no record made of what the applicant did by 24 August 2022 that led to losing weight or how he was keeping very active.
I am unable to draw an inference based on these clinical records that the applicant’s weight loss and activities in this period contradict the evidence that he continues to experience cervical pain as the result of the incident on 25 April 2021.
I prefer the medical evidence of Dr Green and Dr Laban that the applicant continued to experience pain as a result of the aggravation of his condition on 25 April 2021 in this period.
Dr Doig in his first two reports concludes the applicant continues to suffer from symptoms as a result of the work-related aggravation to his cervical spine.
Dr Doig opines on 23 January 2023 the effects of the injury have not ceased and the applicant’s bus driving at pre-injury capacity in the past rendered his neck condition more symptomatic. On 13 February 2024 Dr Doig opines the applicant has not recovered from the injury and most likely will not do so in the future.
In his supplementary report of 7 August 2024 Dr Doig changes his opinion on a review of the CCTV footage of 25 October 2023 and Dr Maistry’s report of 4 March 2022.
Dr Doig notes the applicant presented on the CCTV footage of 25 October 2023 with no obvious, functional restrictions in his cervical spine and left shoulder.
I am unable to accept the CCTV footage has probative value with respect to the applicant’s cervical spine condition.
The CCTV footage shows the applicant walking across the respondent’s yard talking to a co-worker, tripping, falling, getting up, tying his shoelace and walking again.
Dr Doig does not in my view explain the way in which functional restrictions in the cervical spine and left shoulder might be expected to be presented in the context of the applicant’s fall on 25 October 2023.
On 21 December 2023 for example Dr Doig describes the applicant walking comfortably into his consulting rooms, and on examination diagnoses an aggravation of pre-existing degenerative change in the neck and deteriorating radiculopathy in the left arm.
In the absence of further explanation I am not persuaded the CCTV footage of the applicant’s fall on 25 October 2023 provides evidence that he did not have functional restrictions in his cervical spine on that day.
In the question put to Dr Doig the applicant is said to be shown in the CCTV footage as deliberately tripping himself over in the carpark in what could be described as skylarking.
Mr Farrell’s evidence is that on 25 October 2023 the applicant proceeded to obviously stand on the loose shoelace and fall. The applicant’s evidence is that the fall was genuine, it was embarrassing, and he strongly disagrees he was trying to fall over on purpose or that he was generally joking around.
Whether the applicant was skylarking does not assist in determining whether the aggravation of his cervical spine condition had ceased at that time.
The applicant is at work on 25 October 2023. The general practitioner’s clinical records note the applicant had the third spinal injection on 26 September 2023.
There was some mild improvement noted by Dr Green on 16 October 2023 with ongoing pain at night, the applicant had adequate neck rotation laterally and bilaterally, and he is “OK for driving bus.”[10]
[10] ALAD 2 page 33.
On 30 October 2023 Dr Green notes the applicant was coping with four hours including two hours driving, and his restricted duties were unchanged.
What is shown on the CCTV footage does not apparently contradict the contemporaneous clinical records.
Dr Maistry’s report of 4 March 2022 is discussed above. Dr Maistry has not assessed the applicant since early 2022.
I accept the applicant’s submission that Dr Maistry’s opinion is restricted to an assessment of the applicant’s fitness for duty in March 2022.
The applicant submits Dr Doig’s report of 7 August 2024 was not prepared in a fair climate[11] and I agree. I afford this opinion little weight as a result.
[11] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58.
I am not persuaded the applicant’s neck and shoulder symptoms resolved as Dr Doig opines on 7 August 2024, noting his opinion is based on Dr Maistry’s assessment of the applicant in March 2022 and the CCTV footage of October 2023.
I accept the respondent’s submission that the findings of the MRI on 29 September 2023 and other MRIs may be explained by a progression of the degenerative cervical changes alone.
This does not exclude a finding based on the medical evidence, particularly of the applicant’s treating specialist, that the aggravation of his condition also continues.
The level of the applicant’s pain fluctuates, his hours of work and work duties change and he receives treatment including physiotherapy and injections at various times. I accept the applicant’s submission that the type of pain he describes when it flares up remains consistent.
The weight of the evidence supports the finding that the applicant has been significantly affected by the aggravation of his cervical spine condition since 2021.
I find on the balance of probabilities that the applicant continues to suffer from the aggravation of his cervical spine condition on 25 April 2021 within the meaning of s 4(b)(ii) of the 1987 Act.

The entitlement of the applicant to weekly compensation from 25 October 2024

The applicant claims weekly benefits compensation from 25 October 2024 to date and continuing pursuant to s 38 of the 1987 Act.
Under s 38 any entitlement to weekly compensation ceases after week 130, the second entitlement period, unless there is otherwise an entitlement under the section. There is an entitlement in accordance with s 38(2) where the worker is assessed by the insurer as having no current work capacity and is likely to continue indefinitely to have no current work capacity.
A worker has no current work capacity under cl 9 of Schedule 3 of the 1987 Act if they have a present inability arising from an injury such that they are unable to return to work, either in their pre-injury employment or in suitable employment.
A work capacity assessment in accordance with s 44A(2) of the 1987 Act is an assessment of an injured worker’s current work capacity conducted in accordance with the Workers Compensation Guidelines. The Guidelines include that a work capacity assessment can be based on available information (such as a certificate of capacity).
President Judge Phillips confirmed in FLETCHER INTERNATIONAL EXPORTS PTY LTD V LEE[12] THE COMMISSION HAS JURISDICTION TO DETERMINE A CLAIM INVOLVING S 38 OF THE 1987 ACT.
[12] [2023] NSWPICPD 67.
Following internal review, the dispute notice issued on 14 November 2024 assesses the applicant as having no ongoing incapacity for work as required by s 33 of the 1987 Act.
The decision relies on Dr Doig’s opinion that any aggravation caused by the injury on 25 April 2021 had resolved by March 2022, and that the applicant’s current complaints relate to underlying osteo-arthritis in the spine.
I have found Dr Doig’s opinion of 7 August 2024, based on Dr Maistry’s assessment of the applicant’s fitness for duty in early 2022 and the CCTV footage of 25 October 2023, should be afforded little weight for the reasons discussed above.
The weight of evidence is that the applicant has no current work capacity.
The applicant describes his symptoms and disabilities and his belief that he does not have the capacity for work in his statement of 27 September 2024.
Dr George certifies the applicant as having no work capacity from 25 October 2024 to
10 June 2025.
The applicant’s treating and medicolegal evidence is that without surgery the applicant is likely to continue indefinitely to have no current work capacity.
Dr Khong comments on 24 October 2024 that the applicant is currently unable to work, his prognosis is poor without surgery and his future capacity to work is severely limited.
Dr Laban comments on 28 November 2024 that the applicant has a moderate prognosis, his symptoms related to the injuries may gradually improve but he may have ongoing pain which may benefit from further injections, pain specialist input and surgery as offered.
I find that the applicant has no current work capacity and he is likely to continue indefinitely to have no current work capacity without surgery in accordance with s 38(2) of the 1987 Act, and he is entitled to weekly compensation after the second entitlement period.
PIAWE is agreed at $2,290.
I find the applicant is entitled to weekly compensation in accordance with s 38(6) of the 1987 Act at the rate of 80% of his PIAWE of $2,290 from 25 October 2024 to date and continuing (subject to indexation).

The entitlement of the applicant to medical expenses

In accordance with s 60 of the 1987 Act the applicant must establish the aggravation of his cervical spine condition on 25 April 2021 is a material contributing factor to the need for the surgery proposed by Dr Laban.[13]
[13] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
The respondent agrees the surgery proposed by Dr Laban is reasonably necessary treatment but disputes it is reasonably necessary as a result of the aggravation injury on
25 April 2021.
I do not accept the respondent’s position.
I have found the applicant continues to suffer from the aggravation of his cervical spine condition on 25 April 2021.
Dr Khong is of the opinion the medical treatment for the workplace injury to the applicant’s cervical spine is reasonably necessary and the proposed surgery is appropriate. Dr Laban is of the opinion the applicant’s ongoing neck pain and left brachialgia commenced following the work-related injury on 25 April 2021 and the surgery he proposes is reasonably necessary to treat the injury.
I do not afford weight to Dr Doig’s opinion of 7 August 2024 that the need for surgery is related to the progression of an underlying cervical spine condition and is not related to the incident of April 2021 for the reasons discussed above.
On a consideration of the applicant’s treating and medicolegal evidence I find the aggravation is a material contributing factor to the need for the proposed surgery.
I find the surgery claimed by the applicant, that is the left C4/5, C5/6 and C6/7 foraminotomies and C4/5 anterior cervical discectomy and integrated cage fusion proposed by Dr Laban on 29 November 2024, is reasonably necessary as a result of the aggravation injury of 25 April 2021 within the meaning of s 60 of the 1987 Act.

SUMMARY

The applicant continues to suffer from the aggravation of his cervical spine condition sustained on 25 April 2021 within the meaning of s 4(b)(ii) of the 1987 Act.
The applicant has no current work capacity from 25 October 2024 and is likely to continue indefinitely to have no current work capacity without surgery within the meaning of s 38(2) of the 1987 Act.
The applicant is entitled to weekly compensation in accordance with s 38(6) of the 1987 Act at the rate of 80% of his PIAWE of $2,290 from 25 October 2024 to date and continuing (subject to indexation).
The left C4/5, C5/6 and C6/7 foraminotomies and C4/5 anterior cervical discectomy and integrated cage fusion proposed by Dr Laban on 29 November 2024 is reasonably necessary medical treatment as a result of the aggravation of the applicant’s cervical spine condition on 25 April 2021 within the meaning of s 60 of the 1987 Act.

[2025] NSWPIC 125

4 April 2025