The Personal Injury Commission (Commission) determines:

1. The respondent is to pay the applicant's medical expenses as proposed in the dental treatment plan of Dr Wasserman dated 23 January 2025, pursuant to s 60 of the Workers Compensation Act 1987.

A brief statement is attached setting out the Commission's reasons for the determination.

1. Mr Fenton worked for the respondent as a bus driver. He was assaulted on 19 December 2024, being punched in the head, face, mouth and arm. Liability for injury was accepted, but Mr Fenton made a request for medical expenses in the form of teeth repair and replacement via bridge. This is on the background of previous dental issues with implants placed in 2017, that were repaired in the following year. In the assault, Mr Fenton damaged two teeth, his upper central incisors.

1. The parties agree that the following issue remains in dispute:

(a) whether the treatment claimed, as set out in a dental plan, is reasonably necessary as a result of injury pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY 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 matter proceeded via hearing on 28 January 2026. Mr Fenton was represented by Mr Tanner of counsel, instructed by McNally Jones Staff Lawyers. The respondent was represented by Mr Stiles of counsel, instructed by Turks Legal.

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

(a) Application to Resolve a Dispute and attached documents;

(b) Reply and attached documents, and

(c) Application to Lodge Additional Documents, attaching clinical records of Dr Licenblat.

1. The evidence in this case is limited and fairly straightforward.
2. Mr Fenton provides a statement dated 29 September 2025, which sheds little light on the issues in dispute.
3. Dr Wasserman, who is the applicant's treating dentist, provides a series of reports and a treatment plan, which is the basis of the claim. The first is an undated report that provides "All on 5 upper bridge and remake at restored Vertical Dimension to be able to fit both upper central incisors at correct position". In Dr Wasserman's opinion, the bridge will need to be restored to "correctly accommodate the upper central incisors and have an even full arch supportive bite".
4. The claim for treatment was then rejected in a s 78 notice issued on 21 February 2025, including that there were alternative treatment options. Dr Wasserman responded to that in a report dated 4 March 2025, rejecting the suggestion that the two damaged teeth be replaced, on the basis that "the teeth need to be hollowed out and worn out to be in the correct position of the arch for function". He goes on to suggest that if all teeth are not repaired, the "teeth will be fractured very quickly as the repair is not a durable solution".
5. A review request was completed on 25 March 2025, again rejecting the treatment proposed, on a similar basis. Dr Wasserman replied via report on 8 July 2025, providing similar but more expanded reasons as to why the full set of teeth should be repair. This included that the bond would be of dubious quality, it would be unacceptable and unsatisfactory from an aesthetic perspective, and that it is reasonably necessary treatment.
6. A second opinion was obtained from Dr Anthony Au, a prosthodontist. This, it is noted, is not an independent medical expert opinion, but rather a second treating opinion. In his report dated 21 June 2025 Dr Au takes a history of Mr Fenton's dental issues including implants. He notes fracture acrylic teeth at 11 and 21, as well as teeth 12 and 22. He provides a summary, including the following relevant paragraph:

"Although the approved repair of artificial teeth 11, 21 can be done, bond strength will be reduced/compromised due to the inevitable moisture absorption of the acrylic resin of the maxillary prosthesis after intra-oral use. The compromised bond strength to the replacement artificial teeth will increase the risk of future dislodgement of the repaired teeth 11 and 21. Hence there is an advantage of having the entire prosthesis redone for better bonding of the artificial teeth to the acrylic framework."

7. The suggestion of repairing two teeth only comes from the report of Dr Rice, who provides a medicolegal report dated 21 February 2025. Dr Rice sets out the background facts and history of injury. On examination, she notes that Mr Fenton was wearing an implant supported overdenture and the prosthesis appeared worn with the upper central incisors being fractured. She considers the history and concludes that Mr Fenton was "likely suffering from bruxism on 19 July 2016". She addresses causation focusing on the upper central incisors. She opines that Mr Fenton's fractured overdenture teeth require replacement. She goes on to state:

"However in my opinion, the wear associated with the upper prosthesis and the overclosed bite is due to Mr Fenton's bruxism. Based on the edge to edge incisor position Mr Fenton's upper central incisors were likely worn and thin prior to the assault."

8. She considers whether the treatment proposed is reasonably necessary and says the cost is excessive, for the following reasons:

"In my opinion the requested "All on 5 upper bridge and remake" is not reasonably necessary. As the assault resulted in the fracture of the upper 2 central incisors, then the upper 2 central incisors only should be replaced. > > Due to the wear associated with the prosthesis and the edge-to-edge incisal position, the replacement teeth will likely be shorter than the original teeth on the original denture, however, these teeth would have been shorter prior to the assault due to bruxism."

9. Dr Rice provides a further report dated 21 March 2025, following the provision of dental records and photographs. The report suggests that part of the tooth wear is due to poor positioning of the previously installed overdenture and Mr Fenton's failure to wear an occlusal splint at night.
10. There are also clinical notes from Dr Licenblat, who treated Mr Fenton from 2016-2018.

1. The parties provided oral submissions at the hearing. They were recorded, and I do not intend to summarise them in great detail.
2. The applicant submits that the treatment claimed is reasonably necessary as a result of the assault. There is no dispute that the applicant suffered injury to two of his teeth. The treating dentist is of the opinion that in order to address the injury the bridge should be restored. There is no opinion the respondent can rely on to contradict the opinion of Dr Wasserman. Dr Wasserman provides a forthright opinion that is not addressed by Dr Rice.
3. The applicant refers to the report of Dr Au, who also recognises that confining the repair to two teeth will not be sufficient given the compromised bond strength. A replacement that occurs without a prosthesis is subject to increased risk of dislodgment. The applicant then addressed the opinion of Dr Rice. It was submitted that the opinion did not engage with the reports of Drs Wasserman or Au, and does not recognise that treatment has to extend beyond the two incisors. It was also submitted that Dr Rice fails to engage with the reasonably necessary question.
4. In reply, the respondent refers to the ss 78 and 287A notices issued, as well as Dr Lichenblat's records, noting that otherwise there are no treating records that predate the material between 2018 and 2025.
5. The respondent submits, regarding Dr Wasserman, is that his proposal ignores the clear wear and tear that was present in the prosthesis and acrylic teeth, and the fact that Dr Rice says the repair can proceed by replacing the damaged teeth. The respondent notes that Dr Rice provides the only medicolegal report in the case, and is the only one that agrees to be bound by the expert code of conduct. I would prefer the opinion of Dr Rice, on that basis.
6. Dr Wasserman's report acknowledges that the other teeth are worn out. Dr Au acknowledges that you can repair two teeth only, as it is commonplace. The prosthesis more generally needs to be replaced due to wear. It might be better that the whole prosthesis is replaced but that is reasonably necessary as a result of the subject injury. The applicant bears the onus and relies on no qualified independent medical expert opinion.
7. In reply, the applicant submits that the respondent sought to argue that the opinion of a treater should be given less weight than that of a medicolegal expert. The applicant submits that more weight would be accorded to a treater who has a greater knowledge of the person and has seen them on more occasions. Dr Rice has confined her opinion that only teeth 11 and 21 are injured, and has not considered the prospect of failure. There is a risk of failure of repairing just teeth 11 and 21 unless the other work is done. It would follow that as a matter of commonsense that the full gamut of treatment is materially related and necessary as a result of the subject injury.

1. The dispute in this case is limited to whether treatment proposed is reasonably necessary as a result of injury, pursuant to s 60 of the 1987 Act. The specific treatment claimed is outlined in a dental plan attached to the Application at page 14. In summary, it includes the replacement of a series of teeth, with consequential fixing of those new prosthetic teeth. Two of Mr Fenton's teeth were directly damaged in an assault. The respondent maintains that it is appropriate to repair only those two teeth. The applicant wants five teeth replaced.
2. The parties agree that the principles espoused in in Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) apply to the present case. The criteria in Diab, consistent with Rose v Health Commission (NSW) [1986] NSWCC 2; (1986) 2 NSWCCR 32, are:

"(a) the appropriateness of the particular treatment; > > (b) the availability of alternative treatment, and its potential effectiveness; > > (c) the cost of the treatment; > > (d) the actual or potential effectiveness of the treatment, and > > (e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective." (at [88])

3. Although the parties have not specifically addressed each of the criteria in Diab, or explicitly linked the arguments in the present case to one or more of the criteria, Diab remains relevant authority and determinative of the issue in this case.
4. There are competing medical opinions before me, from the applicant's treating team, including a second opinion, opposed by the respondent's medicolegal expert, Dr Rice. I have summarised those reports that are before me above.
5. I would first comment on the opinion of Dr Rice, who aside from being a dental surgeon is also an admitted solicitor. In responding to a question about the proposed treatment, with reference to some (but not all) of the criteria in Diab, Dr Rice opined that the cost of the dental treatment requested is excessive. This goes to the third of the criteria expressed in Diab. Dr Rice supports this assertion on the basis that the assault that caused Mr Fenton's work injury fractured the upper two central incisors, and only those two teeth should be replaced.
6. I am of the view that here, Dr Rice has asked herself the wrong question. The injury suffered was to the face, mouth, teeth and head. The mouth, including all 32 individual teeth, are not separately and individually divisible. It is common knowledge both from a medical and legal point of view that an injury can have consequences beyond the initial impact or region damaged. An analogous example might be a fusion in a spinal region - the specific problem may be arising from one disc, but in order to appropriately address that problem, that disc must be fused to the surrounding discs. That does not mean a respondent is not liable to pay for part of the surgery proposed. The impact of any treatment must be considered wholistically.
7. The position taken that the cost of the treatment is excessive must thus be considered in the context of what is being proposed: a repair to two damaged teeth of a durable and aesthetically appropriate nature, that will ensure a long-lasting and appropriate replacement. Whilst replacing five teeth is more expensive than two, the real risk is that should a repair proceed as suggested, in short order the applicant may find himself in a similar position to that he faces now, with damaged, dislodged, or broken teeth. This could lead to further cost, as opposed to the full and appropriate treatment now.
8. The further basis for Dr Rice's claim that the cost of the treatment is excessive is also connected to another of the Diab criteria, that is that there is an alternative treatment available. Dr Rice identifies that the two central incisor teeth should be replaced on the existing prosthesis. What this opinion fails to address is that when considering the availability of alternative treatments, one must also consider their potential effectiveness. Dr Rice identifies that the existing prosthesis is worn but makes no further comment on this. In her supplementary report, Dr Rice acknowledges that tooth wear is a known complication associated with dentures, and then goes on to suggest that the rate of tooth wear could have been avoided had different steps were taken. She goes on to reach the following conclusion:

"In my opinion Mr Fenton's bruxism, prosthetic tooth wear and subsequent loss of vertical dimension are not related to the workplace accident on 19 December 2024."

9. Again, it is my view here that Dr Rice is not asking the correct question. Mr Fenton is not seeking a replacement of teeth worn down due to bruxism or some other cause. He is seeking medical treatment that results from his injury. In order to properly facilitate that medical treatment, it is necessary that five teeth are replaced, rather than two teeth are repaired.
10. This is because the "potential effectiveness" of the alternative treatment is questionable, at best. Both Dr Wasserman and Dr Au address this issue. Dr Wasserman addresses this on three bases:

(a) the bridge needs to be restored to the correct direction to have a full arch supportive bite, placing the two upper central incisors in the correct position;

(b) if the teeth are only repaired, they will fracture very quickly as the repair is not a durable solution, and

(c) for the repair to be strong enough, the teeth will be entirely unacceptable and unsatisfactory from an aesthetic perspective.

1. Dr Au also acknowledges that the two teeth can be repaired, but that bond strength will be reduced or compromised, increasing the risk of future dislodgment.
2. The above opinions all go to, consistent with Diab, the potential effectiveness of the treatment. I accept the applicant's submissions that Dr Rice does not appropriately grapple with whether the proposed alternative would be effective. Again, she has focussed on what occurred in the incident and not the treatment proposed, to the detriment of the weight that I can give her report.
3. The other criteria in Diab do not have particular relevance here. There is not great debate that the treatment is appropriate; Dr Rice focusses on the wrong issue, not actually considering whether the treatment proposed is reasonably necessary, whilst Drs Wasserman and Au both support the treatment proposed as appropriate.
4. It is not argued that the proposed treatment will not be potentially effective. The proposed alternative treatment, being repair of two teeth, is clearly an issue and I have discussed that above, concluding that I prefer the opinions of Drs Wasserman and Au.
5. The treatment appears to be medically appropriate and accepted. Again, Dr Rice does not explicitly address this point or disagree with Drs Wasserman and Au, but rather focusses on a different issue.
6. The only remaining issue, not particularly strongly pushed by the respondent, but identified in the opinion of Dr Rice, is the existence of bruxism and the teeth prosthetics that were apparently well worn prior to the work injury. As Dr Wasserman points out, there is an egg shell skull principle that exists. I take this to be a suggestion that whilst the teeth may have been worn down prior to the assault, the respondent takes their worker as they find them. The assault caused damage necessitating the treatment now proposed; the bruxism may (or may not) have existed, but did not cause the teeth to fracture. I do not think it is relevant at all to the issue in dispute. The treatment proposed is not to treat Mr Fenton's bruxism, which is potentially a pre-existing condition. It is to treat the direct consequence of the injury that occurred in the course of employment. To the extent necessary I find that the injury materially contributed to the need for the treatment proposed. For the reasons given above, the treatment is reasonably necessary.
7. Accordingly, I will make an award that the respondent pay the applicant's medical expenses.