1. The only issue in dispute is whether the applicant suffered a neck injury in the course of his employment with the respondent. In the event there is a finding in the applicant's favour on this question, there is no issue he is entitled to payments of weekly compensation for the period claimed, nor is there any dispute the surgery carried out by Dr Lukins on 13 September 2024 was reasonably necessary.
2. The parties agree that the respondent will be entitled to a credit for any payments made during the period sought, and where applicable should the applicant succeed, that he would be entitled to a recrediting of sick leave.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

1. 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.
2. The parties attended a hearing before me on 19 June 2025. The applicant was represented by Mr Hallion of counsel instructed by Ms Gordon. The respondent was represented by Mr Necovski instructed by Mr Quillan.
3. At the commencement of the hearing, the respondent sought without objection to introduce into evidence pay records for the applicant, including the period claimed which it appears comprises sick leave. The documents having been admitted without objection, a Direction was made that the respondent's solicitors file and serve an Application to Lodge Additional Documents (ALAD) attaching the relevant records within seven days of the hearing.
4. Mr Hallion objected to the taking into evidence of a factual desktop report undertaken by Procare Investigations dated 9 October 2024 and attached to the Reply. After hearing submissions from both counsel, I allowed the document into evidence.
5. Mr Necovski objected to the contents of the applicant's ALAD dated 2 May 2025, which comprise academic articles on the effects of flying on pilots. After hearing submissions from both parties, I determined to allow the articles into evidence, subject to submissions being received as to the weight which should be given to them.

1. The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute (the Application) and attachments;

(b) Reply and attachments;

(c) applicant's ALAD dated 2 May 2025 and attachments;

(d) applicant's ALAD dated 10 June 2025 and attachments, and

(e) record of payments made to applicant during period claimed, including sick leave, which are to be lodged by the respondent as attachments to an ALAD within seven days of the hearing.

1. There was no oral evidence called at the hearing.

Whether the applicant suffered a work injury to his neck.

1. The applicant carries the onus of proving his neck condition is work-related. In determining the cause of an injury, the Commission must apply a common-sense test of causation. In the workers' compensation context, that test was set out by Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) where his Honour said:

"The result of the cases is that each case where causation is an issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions proximate caused by the use of the phrase 'results from' is not now accepted. By the same token, the mere proof that certain events occurred which predisposed to work at a subsequent death or injury, will not, of itself, be sufficient to establish that such incapacity or death 'results from' a work injury. What is required is a common-sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation." (at [810]).

1. The applicant alleges his injury is in the nature of an aggravation to a disease process, to which his employment was the main contributing factor (s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act)).
2. In order to prove the presence of an injury, the worker is required to demonstrate a sudden or identifiable pathological change to the claimed body system. That element of the test is not an issue in this case, as there is no question the applicant suffered a herniated disc at C6/T1. As such, the applicant's condition broadly satisfies the nature of an injury as that term is defined in s 4 of the 1987 Act: see Castro v State Transit Authority (NSW) [2000] NSWCC 12.
3. Whether employment is the main contributing factor to an injury is a question of fact and is a matter of impression and degree (Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153), which is to be determined after a consideration of all the evidence.
4. As the alleged injury is said to be in the nature of a disease process, the causal connection with employment is more stringent than a frank injury. That is, the applicant must demonstrate his employment was the main contributing factor to the aggravation at issue, rather than a substantial contributing factor to the aggravation.
5. When considering injuries in the nature of aggravations, it is important to note the employment must be the main contributing factor to the aggravation, not to the underlying pathology which has been aggravated. That much is made clear by a long line of authorities beginning with the High Court's decision in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 (Semlitch). In that matter, Kitto J considered the question of aggravation of disease processes and noted:

"There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon [him] rather than being concerned with the underlying mechanism."

1. Semlitch was applied by Burke CCJ in Cant v Catholic Schools Office [2000] NSWCC 37, where his Honour said:

"The thrust of these comments is that irrespective of whether the pathology has been accelerated, there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker." (at [17]).

1. In Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd [1998] NSWCC 51; (1998) 45 NSWLR 606 (Mecha) the Court of Appeal said the words "injury consists in the aggravation ... of a disease" should be construed as not referring to something which is an injury independent of its aggravating effects on a previously existing disease, that is, the injury must be confined to the aggravation and its effects.
2. It can therefore be said that the proper test is whether the aggravation impacted the individual concerned. It is not necessary for the particular disease process or the underlying pathology to be made objectively worse: see Cabramatta Matter Body Repairs (NSW) Pty Ltd v Raymond [2006] NSWCCPD 132.
3. In this matter, it does not appear controversial the applicant suffered a worsening of conditions in his neck. His statement evidence deposes to some neck symptoms from time to time, which substantially worsened in September 2024, the circumstances surrounding which are dealt with later in these reasons.
4. Rather, the issue in this matter is whether the applicant's employment with the respondent was the main contributing factor to that worsening of his neck symptoms. In AV v AW [2020] NSWWCCPD 9, Snell DP dealt with the nature of the test of main contributing factor. The deputy president said:

"66. I had previously expressed the view that the test of 'main contributing factor' inserted into the definition of 'injury' in s 4 b) by the 2012 amendments, is more stringent than the test applicable to s 4(b) in its previous form, which was subject to s 9A of the 1987 Act. There may be more than one 'substantial contributing factor'. Section 9A requires that the employment concerned be a substantial contributing factor to the injury. That use of the indefinite article admits of the possibility of other, and possibly non-employment related, substantial contributing factors. On the other hand, the requirement in s 4(b) inserted by the 2012 amendments, that employment be 'the main contributing factor' permits the existence of only one such factor. The requirement of 'the main contributing factor' involves a more stringent connection with the employment than the requirement of 'a substantial contributing factor' that applied to disease injuries prior to the 2012 amendments."

1. At [72] in the same matter, Snell DP noted the question of main contributing factor is one of causation. This being so, it is necessary to examine the issue of causation by reference to the Kooragang test and undertake a commonsense evaluation of the causal chain, having regard to all of the evidence in the matter, both lay and medical.
2. The applicant provided two statements in the proceedings, one dated 23 October 2024 and the other 25 February 2025. In his first statement, the applicant provided the following evidence:

"At the time of my injury, I had worked for Qantas Airways for 20 years and 6 months. I started as a second officer on the 747-300 in March 2004.

Since that time, I have flown the Boeing 767, 787 and the Airbus A380. I have amassed a total of 8000 hours in the right hand seat of Qantas aeroplanes, which is almost a consecutive year of my life. Sitting in the right hand seat is a significant consideration, as it corresponds to the right side C8 radiculopathy and herniated C7 disc that was diagnosed by Dr Lukins on 12/09/24.

Prior to joining Qantas, I had no previous spinal injuries or any other work-related medical issues. Whilst I have never reported any back issues whilst employed with Qantas, I have noticed strain from the nature of my job over the years, which likely contributed to the current condition. ...

I have listed below the daily tasks that I perform whilst on duty as a pilot for Qantas that I believe have contributed to my injury.

1. As I am right handed, I have always carried my flight bag over my right shoulder. This bag can weigh up to 10kg packed with the necessary items for any given flight that I have completed over the last 20 years. The distance walking between aeroplanes that I have flown on any given day (sometimes four different planes on a day park at different ends of the terminal) or the distance to crew transport from the aeroplane can be up to a 30-minute walk per day with the flight bag over my right shoulder. The wait time standing in customs/quarantine line to the bag over my right shoulder can also be up to an hour per day on any day that I am working. Having one shoulder loaded up for this length of time is put straight on my cervical spine.
2. As I sit in the right hand seat as a first officer, I have to extend my right arm constantly to either steer the aeroplane on the ground using a tiller, or to control the aeroplane in the air using the control yoke. This extension of my right arm for extended periods of time on every flight is uncomfortable and often leaves me with a sore neck/back.
3. I am required to wear a headset to communicate with my co-pilot, ATC, other aircraft and also with cabin crew. Although the headset has evolved over the time since I joined Qantas, it is still uncomfortable and heavy, and puts strain on my neck, particularly when I turn my head, or when enduring the G-forces associated with turbulence that can range from light to severe. The headset needs to be worn for up to 10 hours in a day of work.
4. Flying for up to 21 hours in a single day requires maintaining a static seated position in a cramped cockpit or crew rest facility, which has placed strain on my spine and neck over time. I am constantly turning to my left to engage/communicate with my co-pilot during this period of time. On the 767 (I spent eight years on this plane), the video screen to allow access to the flight deck was positioned directly above the flight deck door. This meant that every time a crew member wanted to enter or leave the flight deck, I was required to turn my head all the way around to my left to view the screen that was directly behind me. This would happen on numerous flights per sector. ...
5. I recommend the position for my flight bag on all aeroplanes I have flown in Qantas has been on the right hand side of my seat, on the floor. Due to the constricted nature of all flight decks, removing the bag to allow another pilot to sit in my seat would involve a turning twisting movement to move the 10 kg bag. As a result, this twisting and turning motion has put strain on my cervical spine."
6. In his second statement, the applicant confirmed the general nature and extent of his duties. Concerning the specific events of September 2024, the applicant stated:

"7. I had returned from the United States as a passenger on Tuesday, 3 September 2024. I slept poorly on this flight and disembarked with neck pain. I did not think much of it as I often finished work with neck pain.

1. Upon my return home on 3 September 2024, the pain continued throughout the day. I went to bed at normal time at approximately 9:00 pm on 3 September 2024 and awoke several hours later with sharp pain in my right shoulder. I assumed I pulled a muscle and took some pain relief, which helped a little.
2. On Wednesday, 4 September 2024, I booked and attended a consultation with Dr Harris, GP.
3. He referred me for an MRI scan of my neck on Thursday, 5 September 2025.
4. I returned to work on Friday,6 September 2025. I did a flight to Perth. I was uncomfortable during this flight.
5. I had a scheduled two-day break in Perth after this flight and was contacted by Dr Harris on Saturday, 7 September 2025. He advised me of the results of the MRI scan, which revealed an issue at the C6 level of my cervical spine. I advised him that I had also developed a tingling in the fingers of my right hand.
6. As a result of this consultation with the doctor, I called work and advised that I was sick for duty. At this time, I completed a Qantas injury/illness incident report. I returned to Sydney on 8 September 2024 as a passenger."
7. The applicant underwent a CT scan of his cervical spine on 10 September 2024, then consulted with his general practitioner (GP), Dr Harris the following day who referred him to certain neurosurgeon, Dr Lukins.
8. On 12 September 2024, the applicant consulted Dr Lukins who diagnosed right-sided C8 radiculopathy with disc herniation at the C11/T1 level of the applicant's spine, recommending a microdiscectomy. The applicant underwent this procedure on 13 September 2024, paying for it himself.
9. Following the surgery, the applicant remained off work until 11 November 2024, at which time he was cleared to resume flying.
10. The respondent relied on the views of independent medical examiner (IME), Dr Davies. Dr Davies took a history broadly consistent with that contained in the applicant's statements, and also noted the applicant did regular exercise to keep himself fit, including participating in jiu jitsu.
11. Dr Davies diagnosed C7/T1 disc prolapse causing right C8 nerve root impingement. Dr Davies considered the disc prolapse developed spontaneously while the applicant was sleeping. Whilst Dr Davies considered functional training and jiu jitsu might have contributed to the development of the relevant disc protrusion, the underlying spondylitic changes to the applicant's spine would have been genetic in origin.
12. On balance, Dr Davies noted the applicant developed sudden onset of pain while sleeping which is consistent with a spontaneous disc protrusion rather than a protrusion developing as a result of any incident.
13. When specifically asked whether, taking into consideration the applicant's general health, the nature of his movements of turning his head left and right to speak with the co-pilot and the background of degenerative pathology, whether it was possible the applicant could be suffering from cervical spine symptoms regardless of any work associated with Qantas, Dr Davies stated the applicant's underlying cervical spondylosis does not relate to his employment, whilst the disc protrusion did not relate to his employment, as it developed spontaneously whilst he was sleeping.
14. Dr Davies was of the view that if the applicant's duties were causative of his cervical spine issues, he would have developed the disc protrusion at the time rather than when he was sleeping on 3 September 2024. As such, Dr Davies opined the applicant's employment with the respondent was not the main contributing factor to any aggravation, acceleration, exacerbation or deterioration of the pre-existing cervical spondylosis.
15. Mr Hallion submitted Dr Davies' views failed to acknowledge that occupational exertion can aggravate underlying issues. Mr Hallion did not take issue with Dr Davies categorising the applicant's underlying pathology as congenital in nature, noting that the injury is in the nature of an aggravation to that pathology. Mr Hallion submitted Dr Davies did not take into account the possible cumulative effect of thousands of hours of flying on the applicant's cervical spine, or the repeated carrying of a 10kg bag over his right shoulder.
16. The applicant also submitted, and I accept, the evidence disclosed he had been experiencing occasional neck pain in the lead up to September 2024, not simply on that occasion. The applicant's statement is clear in this regard, and I have no difficulty accepting his evidence.
17. The respondent took the Commission to a clinical entry noting the applicant competed in a jiu jitsu tournament several weeks before the onset of pain, and there was reference to neck pain since that time. Whilst that may be the case, it does not obviate the applicant's own evidence as to long standing neck pain which he experienced from time to time after lengthy international and domestic flights.
18. As noted, the question in relation to causation is whether the applicant's employment was the main contributing factor to the aggravation of the underlying pathology, rather than the development of that pathology itself.
19. Having regard to the applicant's own evidence, which I accept given it was not the subject of serious challenge, and the views of his GP Dr Harris, treating surgeon Dr Lukins and IME, Dr Sheehy, for the following reasons I have no difficulty finding on the balance of probabilities the applicant has discharged the onus of proof.
20. In my view, the respondent's submission of the genesis of the applicant's symptoms arose from his jiu jitsu tournament is not made out. The respondent's own IME, Dr Davies, indicates that if the applicant's employment was the cause of his disc protrusion, then he would have experienced his symptoms whilst at work instead of them spontaneously arising as he slept. If this is the case, the same logic must apply in relation to the jiu jitsu. That is, there were no acute symptoms when the applicant competed in the jiu jitsu tournament, rather his evidence discloses pain gradually building over time.
21. That conclusion is supported by the findings on MRI examination of the applicant's cervical spine on 5 September 2024. As the applicant's GP noted, the pathology demonstrated on that scan is chronic in nature and are likely being "silently developing over several years and only cause symptoms for the first time in September 2024."
22. The applicant's GP also noted:

"Jarrod has discussed his condition with an osteopath who suggested that this may be work-related as he has seen other pilots with similar injuries.

Has been sitting in the right hand seat for 20 plus years, frequently turning his head to the left to talk to his co-pilot. I agree with this assessment that the mechanism of frequently turning his head to one side to speak with his co-pilot is likely to have been the main contributing factor in this disease process."

1. When specifically asked whether the applicant competing in jiu jitsu and functional training could have contributed to the pathology, the applicant's GP stated:

"Any sporting activity could lead to an acute flare up in cervical osteoarthritis/disc protrusion. However, there was no acute injury recalled when performing jiu jitsu and I think the main underlying cause is his employment."

1. On balance, having regard to the totality of the lay and medical evidence, I accept that conclusion.
2. There is no suggestion the applicant is a malingerer. To the contrary, he paid for his treatment himself, and it is apparent his consulting medical practitioners was desirous of seeking treatment for his condition rather than looking to make a claim for workers compensation or of any other kind. He returned to work in very short order after serious spinal surgery and was plainly looking for no secondary gain.
3. Treating surgeon Dr Lukins also supports the applicant's case. In writing to the applicant's GP on 9 January 2025 when reviewing the applicant after surgery, Dr Lukins noted:

"I understand he has made some workplace adjustments already in an effort to minimise cervical rotation that may have predisposed him to this initial disc injury. There remains an approximate 10% risk of a recurrent herniation at some point in the next 10 years."

1. In my opinion, that statement by Dr Lukins is broadly supportive of the proposition the applicant's employment was the genesis of his worsening symptoms which the applicant experienced in the lead up to September 2024. As a treating surgeon providing a report to a GP, one would not expect Dr Lukins to provide a thorough treatise on causation. However, the report plainly indicates he is broadly supportive of the notion the applicant's employment was the cause of his injury, and also supportive of the applicant taking steps to modify his movements in the workplace.
2. The applicant's case is also supported not only by his GP and treating surgeon, but by his IME Dr Sheehy, neurosurgeon. Dr Sheehy took a history form the applicant which was broadly consistent with that provided to other practitioners and contained in his statement evidence. Relevantly, that history included the following:

"He was aware for the preceding weeks that when he turned his neck to the left to look towards the pilot he would experience a right sided neck pain without radiation into the arm. Symptoms changed on 3 September [2024] when he work with severe pain in his neck radiating into the right arm with pins and needles in the ulnar two fingers of the right hand."

1. Dr Sheehy diagnosed the applicant as suffering disc disruption at C7/T11 with pain and weakness in the right upper limb which had been partially relieved surgically. That diagnosis of the applicant's acute pathology is not controversial.
2. Dr Sheehy was then asked specifically as whether the need for the surgical treatment arose out of a work-related injury whilst in the employ of the respondent. Dr Sheehy replied:

"There had been no specific injury however he had noted the development of right sided neck pain turning the neck towards the left while flying and communicating with the captain sitting in the left seat. This injury has progressed with the development of severe pain. The symptoms commenced while in the employ of the Qantas Group."

1. When asked to comment on the findings of Dr Lukins, Dr Sheehy indicated he agreed with the findings of the treating surgeon, then continued:

"On the balance of probabilities his employment was the main contributing factor to the injury as the symptoms initially occurred while flying with Qantas. His work involved rotation of his neck to the left to communicate with the captain. He had been 20 years in the employment of Qantas and the probability is that he was symptomatic following this activity prior to the severe exacerbation which occurred supervening his review by his local medical officer."

1. In my view, the case theory that the applicant's participation in jiu jitsu caused the exacerbation of his condition must be pure speculation. The evidence does not support a finding of acute exacerbation caused by jiu jitsu. Rather, the main contributing factor to the aggravation of the applicant's underlying cervical pathology is, in my opinion, his employment and the postures which he adopted for lengthy periods of time on many long flights over the course of more than two decades. That finding is consistent with the applicant's' own evidence of experiencing neck pain during his employment, and in particular in the lead up to 3 September 2024.
2. Taking into account the entirety of the lay and medical evidence, I am satisfied on the balance of probabilities there is an unbroken chain of causation between the applicant's employment and the aggravation of his underlying condition, which led to a worsening of the symptoms of that condition.
3. The only dispute in the matter having related to this question of liability, and my having found in favour of the applicant, it follows the respondent will be ordered to pay the costs of and incidental to the surgery carried out and to pay the applicant weekly compensation for the period claimed.
4. As noted, there is no issue the applicant's pre-injury average weekly earnings exceeded the statutory maximum. Likewise, the 80% figure of that amount likewise exceeds the statutory maximum.
5. Accordingly, the respondent will be ordered to pay the applicant weekly compensation for the period claimed at the statutory maximum rate, as indexed. It will also be ordered to pay the costs of and incidental to the applicant's reasonable medical expenses, including but not limited to the cervical spine surgery.

1. For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.