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. At the conciliation/arbitration hearing of this matter the applicant was represented by

Mr Tanner of counsel, and the respondent by Mr Gaitanis of counsel.

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, and

(b) Reply and attached documents.

1. The following documents were referred to in submissions:

(a) reports of Dr Bodel, orthopaedic surgeon qualified by the applicant's solicitors, including his reports dated 27 December 2022 and 23 February 2023;

(b) incident reporting form dated 5 November 2019;

(c) statements of the applicant dated 11 December 2012 and 22 March 2024;

(d) report of Dr Khong, neurosurgeon and spine surgeon qualified by the applicant's solicitors, dated 5 February 2025;

(e) report of Dr Smith, psychiatrist qualified by the applicant's solicitors, dated

9 October 2019;

(f) reports of Dr Guirgis, treating general practitioner (GP), including report dated

18 March 2021;

(g) report of Dr Whetton, consultant psychiatrist qualified by the workers compensation insurer, dated 4 March 2020;

(h) reports of A/Prof Boesel, treating interventional pain specialist, including

12 August 2024;

(i) reports of Dr Benjamin, treating consultant psychiatrist, including

15 February 2019;

(j) reports of Dr Lee, orthopaedic surgeon qualified by the respondent's solicitors, dated 4 April 2023 and 7 June 2023, and

(k) report of Ms Piercy, treating psychologist, dated 26 August 2024.

1. I will briefly discuss these documents below, where relevant.

1. The applicant relied upon psychological injury that was sustained in the course of his employment with the respondent, commencing in 2014 with gradual onset and a deemed date of injury of 22 October 2018. This injury was not in dispute. I find that the applicant sustained psychological injury in the course of his employment with the respondent, with gradual onset commencing in 2014 and with a deemed date of injury of 22 October 2018.
2. In general terms, the applicant's case before me was that as a result of the psychological injury with a deemed date of injury of 22 October 2018, he suffered a consequential cervical spine condition. At the commencement of the hearing of this matter the applicant deleted a claim for injury to the cervical spine by way of aggravation of disease, and relied upon the claim for a consequential cervical spine condition.
3. The respondent submitted that there was a lack of clarity in the applicant's claim in that it was not clear until the hearing whether the applicant claimed the cervical spine condition was an aggravation of a disease, and hence claimed pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act), or whether it was something else. It was submitted that this was not articulated until the hearing, when it was said that a consequential condition had been pursued, and a s 4(b)(ii) injury was abandoned.
4. I do not accept this submission. In my view, it was arguable that the balance of medical evidence referred to below indicated the possibility of a consequential cervical spine condition. This was for example discussed in the report of Dr Whetton, which was obtained by the workers compensation insurer and had been available to the respondent since March 2020. Further, the dispute notices issued by the respondent, including the notice of

24 April 2025, canvassed and disputed, among other matters, a consequential cervical spine condition. 5. Central to the respondent's case was a motor vehicle accident in 2011 in which the applicant sustained a neck injury, for which he eventually agreed to a damages settlement. Hence, it was submitted by the respondent, the applicant was prevented by operation of s 151A of the 1987 Act from recovering subsequent compensation for his cervical spine. The applicant responded by submitting that s 151A did not apply in this case, as the claim was for a condition resulting from a subsequent and unrelated psychological condition. 6. It was the respondent's submission that Kooragang Cement Pty Ltd v Bates[1] (Kooragang) made clear that there is a point, as it was said to be in this case, where the link in the chain of causation becomes so attenuated that for legal purposes it should be held that the causal connection has been broken. 7. The respondent submitted that the motor vehicle accident of 2011 resulted in serious injury to the applicant's neck with subsequent surgery in 2004 and 2018 resulting from the 2011 injury. It was submitted that the bulk of the evidence relied upon by the applicant, in respect of psychiatric and pain management specialist opinion, was not qualified for the purposes of a physical or orthopaedic injury, and that similarly opinion of a GP was not qualified in this regard. 8. The respondent submitted that the opinion of Dr Bodel pointed clearly to the 2011 motor vehicle accident is being causative of the applicant's condition. It was submitted that

Dr Khong, dealt with the s 4(b)(ii) disease injury issue, not the consequential condition. 9. Further, it was submitted that the applicant's own evidence in his 2012 statement was that he was already suffering significant depression, which it was said was well before the events of the later accepted psychological injury relied upon in these proceedings. 10. The respondent submitted that the motor vehicle accident of 2011 resulted in serious injury to the applicant's neck with subsequent surgery in 2004 and 2018 resulting from the 2011 injury. It was submitted that the bulk of the evidence relied upon by the applicant, in respect of psychiatric and pain management specialist opinion, was not qualified for the purposes of a physical or orthopaedic injury, and that similarly opinion of a GP was not qualified in this regard. 11. The respondent submitted that the opinions of Dr Bodel and Dr Lee, qualified orthopaedic surgeons, pointed clearly to the 2011 motor vehicle accident is being causative of the applicant's condition. It was submitted that Dr Khong, dealt with the s 4(b)(ii) disease injury issue, not the consequential condition. 12. Further, it was submitted that the applicant's own evidence in his 2012 statement was that he was already suffering significant depression, which it was said was well before the events of the later accepted psychological injury relied upon in these proceedings. 13. I do not accept these submissions. In my view:

(a) whilst the applicant's 2012 statement did refer to depression symptoms and treatment, the qualified psychiatric opinion before me did consider the depressive symptoms prior to surgery in 2014. Dr Whetton and Dr Smith noted treatment and depressive symptoms following the 2011 motor vehicle accident and prior to surgery in 2014. The treating psychiatrist, Dr Benjamin and psychologist,

Ms Piercy appeared not to have a history of the depressive symptoms and treatment prior to 2014. However, in my view the opinions of these treatment providers are supported by the opinions of Dr Benjamin and Dr Smith;

(b) while Dr Khong gave his opinion in terms of the psychological injury being the main contributing factor to the aggravation of the applicant's cervical spine injury, this is my view was a significantly higher standard than is required for the current claim, that is whether the applicant's cervical spine symptoms resulted from the accepted psychological injury. Dr Khong expressed his opinion in the affirmative, and in my view this more than suffices for the current proceedings. I accept

Dr Khong's opinion in this regard;

(c) in my view, the opinion of Dr Bodel, when his report is read as a whole, could not be said to point unequivocally to the 2011 motor vehicle accident as being causative of the applicant's current condition. Dr Bodel recorded the applicant's history of psychological injury which resulted in neck pain, and he noted this was not within his area of expertise. Although Dr Bodel expressed his view that the applicant's cervical spine condition was caused by the 2011 accident and subsequent nature and conditions of employment in respect of a poor ergonomic workstation, he did not address the issue in this case. In my view, his opinion did not exclude the role of psychological injury. I give less weight to his opinion in this matter;

(d) as to the criticism of the qualifications of Dr Whetton, Dr Smith and Dr Guirgis, in my view, the causal issue for consideration is whether the cervical spine symptoms resulted from the accepted psychological injury.[2] It is not a question for determination as to "pathology", as was correctly conceded by the respondent. In my opinion, these medical practitioners are qualified to give opinions as to the relationship between the observed or reported cervical symptoms and the psychological injury, having regard to the applicant's history of cervical muscular tension associated with his psychological injury. While there was a query as to an absence of clinical notes and scans or imaging, the respondent did not dispute the applicant's history in this regard, rather it was said to be vague. I disagree. In my view the histories recorded, and the applicant's own account were not vague, but recorded his cervical muscular tension, pain and psychological symptoms;

(e) similar considerations apply in respect of A/Prof Boesel. Further, as a pain specialist in my view he is qualified to give an opinion as to the relationship between psychological injury, pain and cervical symptoms. He explained the mechanisms involved. I give weight to his opinion, and

(f) Dr Lee was of the view that the predominant cause of the applicant's cervical spine condition was the 2011 accident, and the psychological injury aggravated cervical symptoms but was not the predominant cause. This is not the test for determination in the matter before me, which is whether such symptoms resulted from the psychological injury. Indeed, he agreed there was an "aggravation" resulting from psychological injury. This was not dissimilar to the view of

Dr Khong. Dr Lee's opinion was not contrary to the applicant's case before me, in my view. The applicant in submissions did not disagree that the effects of the 2011 accident were a cause of the applicant's cervical symptoms.

1. In my view, the causal chain or relationship on the evidence was not attenuated and vague. This is because, having regard to the commonsense approach arising from Kooragang:

(a) the applicant's 2024 statement, and the histories recorded by Dr Whetton, among others, stated that following the 2014 surgery he was bullied and harassed at work, resulting in pain, stiffness and rigidity in his neck as his neck muscles were always tense and stiff. He adopted a hunched posture and due to increasing persistent symptoms he underwent further cervical fusion surgery in 2018. On the evidence before me, the applicant's history was accepted by all medical practitioners and not one queried the veracity or significance of that history. I accept the applicant's evidence and I find accordingly in this regard;

(b) the applicant consulted Dr Benjamin for treatment from 2014 to the time of his 2022 report, and also the practice of Ms Piercy from 2015, and Ms Piercy herself from 2018 on a monthly basis to the time of her 2024 report. Both recorded similar histories as noted above, and both related the neck symptoms to the psychological injury. Dr Benjamin was of the view that the applicant's psychiatric condition contributed to the chronic neck pain and stiffness through his chronic hyperarousal state as a consequence of the unresolved psychological injury from 2014. I do not accept that this was a bare statement without sufficient elaboration. In my view the reasoning was sufficient. Ms Piercy was of a similar view, and explained her reasoning with reference to her treatment and to academic research. I accept the opinions of Dr Benjamin and Ms Piercy;

(c) Dr Whetton, as noted above, was of the opinion that the applicant's significant neck pain and headaches were clearly related to the underlying psychological injury. He was of the view that this ongoing psychological injury and associated muscular tension exacerbates the underlying physical condition and pain. In my view, this explanation is succinct and sufficient and I accept the opinion of

Dr Whetton;

(d) the above opinion in my view is sufficient to establish the applicant's claim of a consequential cervical spine condition resulting from the accepted psychological injury. I accept that Dr Whetton, Dr Benjamin and Ms Piercy are qualified to provide this opinion;

(e) additionally, however, the opinions of Dr Khong and A/Prof Boesel also support this conclusion, and

(f) A/Prof Boesel explained that there was a significant myogenic tension aggravated by mental state. He had consulted the applicant every four to six weeks from 2019 to his 2024 report. He noted the applicant made a good recovery from the initial surgery, but developed progressively worsening pain following workplace bullying, with a contributory link between psychological injury and ongoing pain. He explained that this was due to chronic excessive muscular tension with abnormal neck posture, and chronic sensitisation of pain pathways caused by deterioration in the applicant's mental health, as well as a degree of structural deterioration adjacent to the fusion. A/Prof Boesel provided detailed and significant reasoning in support of his opinion. I accept the opinion of A/Prof Boesel.

1. In my view, on a commonsense assessment of causation, the lengthy treatment history, with supporting medical opinion, and chronology in respect of psychological injury following the 2014 fusion surgery, supports the applicant's claim. Accordingly, I find that the applicant has suffered a consequential cervical spine condition resulting from the accepted psychological injury of 22 October 2018.
2. It also follows that I do not accept the respondent's argument in respect of s 151A. That section relevantly deals with damages and compensation in respect of an injury. The respondent's case was that consequential condition was not established and that therefore the applicant's condition was the result of the 2011 motor vehicle accident, for which damages had been paid to the applicant. I have found otherwise. The undisputed psychological injury in my view was a separate and subsequent causal domain, and hence the consequential cervical spine condition was also causally separate from the 2011 motor vehicle accident.
3. The applicant sought a general order as to s 60 expenses, and also specific orders as to past s 60 expenses listed in the Application.
4. That list was lengthy and not explanatory. There were also substantial accounts and invoices attached, including Dr Allan, presumably but not clearly for or in relation to the repeat 2018 fusion, A/Prof Boesel for which I could not discern a particular original account or invoice, substantial physiotherapy and fitness centre expenses, an account of BUPA for $32,638.64 in the form of a cryptic account list, and Medicare for $3,387.55, for a total of $48,719.27.
5. I will make a general order pursuant to s 60. I was not taken to any specific expense. I will not make an order or orders as to all specific past expenses, as it seems to me that in these circumstances a claim for reimbursement is best dealt with on a claims management basis initially, to allow for acceptance or for clarification.
6. However, at this time certain expenses can be discerned with sufficient clarity for a specific order for payment:

(a) MU Hospital Pharmacy 20.10.21 $460 for botox injections. A/Prof Boesel in his reports specifically recommended these periodic injections. I am satisfied that the accepted psychological injury materially contributed to the need for these injections, as per the opinion of A/Prof Boesel.

1. The above specific order for payment of a past expense does not preclude the applicant further claiming his for his past s 60 expenses.
2. The applicant also sought on the grounds of complexity a costs uplift of 30%. This was not opposed by the respondent. There were extensive reports, itemisation of expenses, and a complex history. I am not satisfied that the maximum uplift is warranted, as the dispute focussed on causation. However, each costs application should be dealt with on its own circumstances. Having regard to the above matters, in my view a 20% uplift is warranted.

[1] 35 NSWLR 452 (1994)

[2] Moon v Conmah Pty Limited [2009] NSWWCCPD 134, Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8.