Abedini v Airway Mechanical Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Abedini v Airway Mechanical Pty Limited [2022] NSWPIC 388
APPLICANT:	Mansour Abedini
RESPONDENT:	Airway Mechanical Pty Limited
MEMBER:	Jacqueline Snell
DATE OF DECISION:	19 July 2022
CATCHWORDS:	WORKERS COMPENSATION - The applicant claims costs payable under section 60 of the Workers Compensation Act 1987 (1987 Act) for proposed surgical treatment in the nature of anterior lumbar interbody fusion to the L4-5 and posterior spinal fusion L4-5; the respondent disputes the applicant’s claim on the basis that the proposed surgical treatment is not reasonably necessary treatment for the injury the applicant has sustained to his low back in the course of his employment with the respondent; Held – the surgical treatment in the nature of anterior lumbar interbody fusion to the L4-5 and posterior spinal fusion L4-5 is reasonably necessary treatment for the injury the applicant sustained to his low back in the course of his employment with the respondent; the respondent is to pay the costs of the proposed treatment in accordance with section 60 of the 1987 Act.
DETERMINATIONS MADE:	1. The surgical treatment recommended by Dr Singh in the nature of anterior lumbar interbody fusion to the L4-5 and posterior spinal fusion L4-5 is reasonably necessary treatment for the injury Mr Abedini sustained to his low back on 23 June 2020 in the course of his employment with Airway Mechanical. 2. The respondent is to pay the costs of the anterior lumbar interbody fusion to the L4-5 and posterior spinal fusion L4-5 in accordance with s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mansour Abedini (Mr Abedini) was employed by the respondent, Airway Mechanical Pty Limited (Airway Mechanical) as a sheet metal worker. Mr Abedini commenced his employment with Airway Mechanical in or about November 2018. Mr Abedini is currently 35 years of age.
Mr Abedini sustained injury to his low back on 23 June 2020 in the course of his employment with Airway Mechanical. Mr Abedini made an initial return to work on 25 June 2020 but with his symptoms deteriorating he ceased work. Mr Abedini was subsequently certified fit for suitable duties between December 2020 and March 2021. He made a further return to work, but with his symptoms again deteriorating he ceased work. Mr Abedini has not returned to work since early 2021.
In these proceedings the circumstances of injury sustained on 23 June 2020 are merely described:
“The claimant injured his back while heavy lifting, carrying, and bending at work.”
Mr Abedini claims medical and related treatment expenses payable under s 60 of the Workers Compensation Act 1987 (1987 Act) for surgical treatment recommended by his treating surgeon, Dr Singh, in the nature of anterior lumbar interbody fusion to the L4-5 and posterior spinal fusion L4-5.
While liability is accepted for the injury Mr Abedini sustained to his low back, liability is disputed for the surgical treatment recommended by Dr Singh on the basis the treatment is not reasonably necessary treatment for his injury. Mr Abedini has been issued with two notices in which he has been advised of the decision to decline his claim, the first is dated 12 July 2021[1] and the second is dated 31 March 2021[2]
[1] Application to Resolve a Dispute (ARD) at page 4.
[2] ARD at page 10.

ISSUES FOR DETERMINATION

The parties agree the following issue is in dispute:
(a) whether the surgical treatment recommended by Dr Singh in the nature of anterior lumbar interbody fusion to the L4-5 and posterior spinal fusion L4-5 is reasonably necessary treatment for the injury Mr Abedini sustained to his low back on 23 June 2020 in the course of his employment with Airway Mechanical.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The parties attended a teleconference on 7 June 2022. Ms Khatri appeared for Mr Abedini and Mr Gaudie appeared for Airway Mechanical. Mr Abedini was present and he was assisted by an interpreter in the Farsi language, Mr Samarghandi. Ms Anderson, a representative of EML was present.
With Mr Abedini’s claim unresolved at teleconference, the parties attended a conciliation/arbitration hearing on 11 July 2022. Matthew Eirth of counsel appeared for Mr Abedini, instructed by Ms Khatri. John Gaitanis of counsel appeared for Airway Mechanical, instructed by Mr Gaudie. Mr Abedini was present and he was again assisted by Mr Samarghandi. Ms Paterson, a representative of EML was present.
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 unfortunately 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:
(b) the ARD and attached documents, and
(c) Reply and attached documents.

Oral evidence

Neither party sought to adduce oral evidence or cross examine any witness.

FINDINGS AND REASONS

Brief review of evidence

Statements of Mr Abedini

Mr Abedini has provided two statements, the first is dated 23 November 2020[3] and the second is dated 22 February 2022[4].
[3] Reply at page 1.
[4] ARD at page 1.
In his initial statement Mr Abedini described the incident occurring on 23 June 2020 in which he sustained injury to his low back, for which he initially came under the general medical care of Dr Hamid. Mr Abedini said that following diagnostic imaging which demonstrated “2 protruding discs in my back” he was certified totally incapacitated for work on 13 July 2020 and referred for physiotherapy treatment.
At the time of making his initial statement Mr Abedini had not returned to work and was taking Voltaren and Lyrica medication. He said:
“At present I still have pain in my back which gets really bad some days and I can’t stand up, I can’t bend down, I can’t put my shoes on by myself. I can’t lift my daughter who weighs 12kgs. I can drive only 20-30 minutes as the pain in my back gets bad… I enjoy going for walks but I can’t do much of that now because of my back pain.”
In his subsequent statement Mr Abedini described coming under the general medical care of Dr Lim on 24 February 2021, with referral for specialist review by Dr Singh. Mr Abedini confirmed he continued to take pain medication “as prescribed” and had been receiving physiotherapy and hydrotherapy treatment. Dr Abedini provided comment Dr Singh had recommended fusion surgery for his low back injury and confirmed “I am seeking the back surgery as the treatment I have trialled has not assisted with my ongoing symptoms”. Mr Abedini described his ongoing symptoms:
“(a)    Numbness in my left hand.
(b)     Touch sensitivity in my left hand.
(c)     Limited motion in my back.
(d)     Lower back pain radiating to both hips and both legs.
(e)     Stiffness in my lower back radiating to both hips and both legs.
(f)     Pins and needles in both feet.
(g)     Weakness in both legs.
(h)     Trouble sleeping.
(i)     Stress.
(j)     Low energy.
(k)     High irritability.
(l)     I have been unable to play guitar.
(m)    I have been unable to play football.”

Treating medical evidence
Diagnostic imaging

A report of a CT lumbar spine dated 13 July 2020[5] is in evidence before the Commission. The clinical history queries whether there is discogenic cause for the low back pain Mr Abedini suffers. The conclusion reads:
“At L3/L4 and L4/5, there is mild posterior disc bulge/herniation and minor facet joint arthropathy. Mild effacement of the subarticular recesses at these levels, which may be impinging on the descending L4 and L5 nerve roots.”
[5] ARD at page 29.
A report of an MRI lumbar spine dated 9 March 2021[6] is also in evidence before the Commission. The clinical history on this occasion describes “pain and radicular symptoms”. The findings include:
“At L4/5 mild disc dehydration with broad based disc bulge. Mild lateral recess narrowing with potential irritation of the descending nerve roots in the lateral recess. Mild to moderate facet disease but no foraminal impingement identified.
At L5/S1 mild disc dehydration. Mild lateral recess narrowing. Moderate facet disease. No exiting neural impingement.”
And the comment reads:
“L4/5 and L5/S1 mild lateral recess narrowing secondary to facet disease and intervertebral disc disease may irritate the descending nerve roots at these levels.”

Dr Hamid
[6] ARD at page 31.

Mr Abedini came under the general medical care of Dr Hamid. In his report dated 25 September 2020[7] Dr Hamid confirmed Mr Abedini presented with low back pain on 11 July 2020 with a history of developing low back pain on 23 June 2020. Dr Hamid confirmed he referred Mr Abedini for CT lumbar spine and prescribed him analgesic medication. With Mr Abedini’s symptoms persisting on review, Mr Hamid referred him for physiotherapy treatment. Regarding prognosis, Dr Hamid relevantly wrote:
“Time frame is uncertain; he may need steroid injection on lower back and ? Neurosurgery opinion”.
[7] ARD at page 21.

Dr Lim

Mr Abedini subsequently came under the general medical care of Dr Lim. In his report dated 24 February 2021[8] Dr Lee confirmed Mr Abedini initially presented with low back pain on 24 February 2021 with a history of developing low back on 23 June 2020 and treatment under the care of Dr Hamid. Dr Lim noted the CT lumbar spine undertaken in July 2020. Following clinical examination Dr Lim provided comment Mr Abedini “continues to struggle with lower back pain which impacts his physical capacity for work” and said he disagreed with Dr Hamid who “thought the disc herniations were minor”. Dr Lim formed the view the nerve root irritation “warrants investigation by MRI” and “urgent spinal review”.

NSW Spine Specialists
[8] ARD at page 22.

Mr Abedini came under the orthopaedic specialist care of Dr Singh following referral from Dr Lim. In his report dated 9 March 2021[9] Dr Singh described Mr Abedini’s back pain as “getting worse” and following clinical examination and review of the MRI scan, which he described as demonstrating “disc height loss, disc injury and bulging at L4/5 on a background of partially lumbarised S1 vertebra”, Dr Singh provided opinion:
“at his age we should try and persist with conservative treatment such as physiotherapy. I shall review him after two months. Should he fail conservative treatment he may need to consider his surgical option which would be a decompression and stabilisation with the insertion of a prosthesis.”
[9] ARD at page 25.
Mr Abedini returned for review with Dr Singh on 11 May 2021 and in his report dated the same day[10] Dr Singh described Mr Abedini as suffering “increasing symptoms of back and leg pain with right L5 pins and needles”. Of specific note is that Dr Singh wrote on this occasion:
“MRI scan at i-med at on 26 April does reveal significant loss of disk height and disc bulging at L4/5 which is asymmetry collapse and he is now clearly failing conservative treatment. I have recommended he consider L4/5 decompression and stabilisation with the insertion of a prosthesis. We have discussed the pros and cons, risks and benefits of surgical and nonsurgical treatment.
He understands the risks and is keen to proceed with his surgical option as a more durable solution to his symptoms …”
[10] ARD at page 28.
Unfortunately the MRI scan to which Dr Singh refers in this more recent report is not in evidence before the Commission and it may be Dr Singh accessed this diagnostic imaging through an online portal

Independent medical evidence

ReCare Services

Mr Abedini attended an assessment with ReCare Services on 7 April 2021 with purpose that included “progress in treatment”. The assessment was completed by Sarah Elas, rehabilitation consultant. ReCare Services provided a report dated 7 April 2021[11]. Mr Abedini was assisted by an interpreter.
[11] Reply at page 60.
At the time of assessment Mr Abedini had attended hydrotherapy and physiotherapy and while he had also undergone both the CT scan reported on 13 July 2020 and the MRI scan reported on 9 March 2021, there is no reference to the MRI scan in Ms Elas’ report. Ms Elas described Mr Abedini reported symptoms:
“Lower back pain which he rated at 7 out of 10 on a good day, and 9 out of 10 on a bad day (0= no pain, 10= pain as bad as it could be). Mr Abedini described the pain as constant pain and did radiate down to his legs/feet. He described his pain symptoms like a tingling and numbness sensation”.
Ms Elas formed the view on assessment that Mr Abedini “had reduced capacity and limitations to his functional capacity”.

Dr Casikar

Mr Abedini was assessed on 16 June 2021 by Dr Casikar in his capacity as independent medical examiner. Dr Casikar is a neurosurgeon. Mr Abedini was assisted at assessment by an interpreter. Dr Casikar provided a report dated 16 June 2021[12]. Dr Casikar noted Mr Abedini had sustained injury to his low back on 23 June 2020, which he described as a “workplace aggravation” of constitutional degenerative disease of the lumbar spine. Dr Casikar noted while Mr Abedini initially came under the general medical care of Dr Hamid, his care was transferred to Dr Lim, who referred him to Dr Singh following the MRI scan undertaken on 9 March 2021. Of Dr Singh’s orthopaedic specialist care, Dr Casikar noted:
“He has consulted Dr Singh twice. He seems to have indicated to him that he needs surgery. Mr Abedini is not sure what the surgery entails. However, Dr Singh’s letter to the insurers suggests that he is doing an anterior spinal fusion. Mr Abedini is not quite sure what kind of surgery is being planned and what are the consequences.”
[12] Reply at page 78.
Dr Casikar relevantly recorded of his clinical examination of Mr Abedini:
“He was limping on the right side. He was unable to walk on his heels and toes. He could flex the back up to 20 degrees. Lateral flexion was not possible.
Neurological examination of the lower limbs suggested on the right side reduced SLR (20 degrees), hypoesthesia over the L4, L5 and probably S1 dermatomes. The right ankle jerk was depressed. There was no evidence of motor weakness”.
Following clinical examination and review of the MRI scan dated 8 March 2021, which Dr Casikar said demonstrated canal stenosis at the L3/4 and L4/5 segment and lateral recess compression, Dr Casikar said of Mr Abedini:
“His neurological symptoms suggest that he has a problem at the L4/5 segment on the right side. He requires an L4/5 right hemilaminectomy and rhizolysis. He also has similar problems radiologically at the L3/4 segment. It is difficult to indicate which of these two segments is responsible for the symptoms. I suggest that he should have a cortisone injection in both these segments separately on different days and assess the temporary improvement he is likely to have. This will easily locate the origin of his problem. A limited decompression and rhizolysis at this segment is required.”
As regards the surgical treatment recommended by Dr Singh in the nature of L4/5 decompression and stabilisation with the insertion of a prosthesis Dr Casikar said:
“The proposed surgical treatment is not reasonably necessary treatment for Mr Abedini’s condition. He has a problem at L4/5 segment or at L3/4. A limited hemilaminectomy and rhizolysis at any one of these segments depending upon his response to a cortisone injection is necessary. The interbody fusion suggested by Dr Singh is excessive and a simple hemilaminectomy and rhizolysis will resolve the issue.
…
The expected outcome of the spinal fusion is likely to be very poor. Mr Abedini would not get back to any kind of employment.
…
The alternative to this surgery is a cortisone injection at the L4/5 and L4/5 segments to determine which is the symptomatic segment. A limited hemilaminectomy and rhizolysis and microdiscectomy if necessary, would be the most appropriate form of treatment.
…
The surgery I have suggested has the capacity to relieve his symptoms and I believe it will alleviate the consequences of this injury. However, if Mr Abedini were to go through with the two-stage spinal fusion suggested by Dr Singh, the outcome would be disastrous and he would never be able to get back to any kind of employment. This opinion is based on evidence-based study.
…
However, if he goes through with the hemilaminectomy and rhizolysis, he will be able to get back to his pre-injury employment within two to three months after the surgery and do normal hours of work with some restrictions on lifting heavy weights.”
The MRI to which Dr Casikar referred in his report is that dated 8 March 2021 rather than one dated “26 April” to which Dr Singh referred in his report dated 11 May 2021. However it is probable Dr Casikar had access to the report of Dr Singh referred at the time he provided his independent medical examiner’s report as Dr Casikar made reference to “Dr Singh’s letter to the insurers suggests that he is doing an anterior spinal fusion”.

Associate Professor Hope

Mr Abedini was orthopaedically assessed by Ass Prof Hope in his capacity as independent medical examiner. Mr Abedini was assisted at assessment by an interpreter. Ass Prof Hope provided a report dated 7 March 2022[13]. Ass Prof Hope noted Mr Abedini sustained an injury to his low back on 23 June 2020, which he described as “an L4/5 disc injury”, and noted that with conservative treatment having failed “a L4/5 fusion is proposed”.
[13] ARD at page 15.
Ass Prof Hope wrote:
“Today, 2 years after the injury, there is lumbar pain and bilateral sciatica with stiffness causing a severe functional loss. Examination shows lumbar tenderness and stiffness with a positive right sciatic stretch test. The MRI shows the L4/5 discopathy with spinal canal stenosis. This is consistent diagnosis.
Surgery is required and the requirement for surgery is work-related”.
Ass Prof Hope provided diagnosis of L4/5 discopathy with spinal stenosis and provided opinion that Mr Abedini’s pre-injury duties were permanently inappropriate and that Mr Abedini required permanent suitable duties. Relevant to prognosis, Ass Prof Hope wrote:
“The prognosis is good for a significant symptomatic improvement after successful surgery”.
In response to specific questioning, Ass Prof Hope provided opinion the surgical treatment proposed by Dr Singh was “reasonably necessary” treatment and noted in particular “physiotherapy has failed”. He provided opinion the surgical treatment proposed by Dr Singh “is accepted medical treatment” and “is usually effective”. He also provided opinion “alternative treatment will not be effective”. As regards the surgical treatment proposed by Dr Casikar, Ass Prof Hope wrote:
“Dr Casikar indicates that a lesser procedure is required but there is significant L4/5 discopathy requiring mechanical stabilisation. Therefore L4/5 fusion is required”.
It is evident from his report that while the MRI to which Ass Prof Hope referred in his report is that dated 8 March 2021 rather than one dated “26 April” to which Dr Singh referred in his report dated 11 May 2021, Ass Prof Hope had access to the report of Dr Singh referred at the time he provided his independent medical examiner’s report.

Submissions

Mr Gaitanis and Mr Eirth made oral submissions, which I have carefully considered. I am grateful to counsel for the assistance provided to me in this matter. A recording of counsels’ submissions is available to the parties.

Determination

Whether the surgical treatment recommended by Dr Singh in the nature of anterior lumbar interbody fusion to the L4-5 and posterior spinal fusion L4-5 is reasonably necessary treatment for the injury Mr Abedini sustained to his low back on 23 June 2020 in the course of his employment with Airway Mechanical

Liability is not disputed for the injury Mr Abedini sustained to his low back on 23 June 2020 in the course of his employment with Airway Mechanical. However, liability is disputed for the surgical treatment recommended by Dr Singh in the nature of anterior lumbar interbody fusion to the L4-5 and posterior fusion L4-5.

Section 60 of the 1987 Act provides:
“60 (1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)     any medical or related treatment (other than domestic assistance) be given, or
(b)     any hospital treatment be given, or
(c)     any ambulance service be provided, or
(d)     any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
What constitutes reasonably necessary treatment was considered in the context of what is now s 60 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[14]. Burke CCJ said:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[14] (1986) 2 NSWCCR 32 (Rose).
His Honour added:
“1.     Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.      However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3.      Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
In Diab v NRMA Ltd[15], Deputy President Roche cited Rose with approval and provided a summary of the principles as follows:
[15] [2014] NSWWCCPD 72.
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose, namely:
(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.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
Mr Abedini has the onus of proving the fusion surgery recommended by Dr Singh is reasonably necessary treatment for the injury he sustained to his low back on 23 June 2020 in the course of his employment with Airway Mechanical.
Medical management of the injury Mr Abedini sustained has included diagnostic imaging, anti-inflammatory medication, analgesic medication, physiotherapy treatment and hydrotherapy treatment.
As early as 25 September 2020, following review of the CT scan dated 13 July 2020, Mr Abedini’s then treating general practitioner, Dr Hamid, mooted that Mr Abedini may benefit from neurosurgical review and opinion. When Mr Abedini subsequently came under the general medical care of Dr Lim on 24 February 2021, Dr Lim referred Mr Abedini for an MRI scan of his lumbar spine and “urgent spinal review” with Dr Singh, who is an orthopaedic surgeon and spine specialist.
When Mr Abedini consulted with Dr Singh on 9 March 2021, Dr Singh reviewed the MRI scan dated 9 March 2021 and formed the view that due to Mr Abedini’s age “we should try to persist with conservative treatment such as physiotherapy” with review in two months. However Dr Singh cautioned at that time that if Mr Abedini’s symptoms did not improve with conservative treatment “he may need to consider his surgical option which would be a decompression and stabilisation with the insertion of a prosthesis”. From his estimates of fees for surgery[16] it is evident that the prosthesis referred is in the nature of a vertebral body screw.
[16] ARD at pages 35 and 36.
When Mr Abedini returned for review with Dr Singh on 11 May 2021, Dr Singh described him as suffering “increasing symptoms of back and leg pain with right L5 pins and needles” and said Mr Abedini was “now clearly failing conservative treatment”. On this occasion Dr Singh made reference to an MRI scan undertaken on “26 April”, which he said demonstrated “significant loss of disc height and disc bulging at L4/5 which is asymmetry collapse”, and recommended Mr Abedini consider the surgical treatment previously mooted. He described Mr Abedini as “keen to proceed with his surgical option as a more durable solution to his symptoms”.
In his report dated 16 June 2021, which is just after one month after Dr Singh recommended Mr Abedini undergo spinal fusion, Dr Casikar reported he had had the opportunity to assess Mr Abedini in his capacity as independent medical examiner. While at the time of assessment Dr Casikar had available to him the MRI scan dated 8 March 2021, which he said demonstrated canal stenosis at the L4/5 and L4/5 segment and lateral recess compression, it is not evident he had available to him the MRI scan dated “26 April” to which Dr Singh referred at the time he recommended spinal fusion.
Dr Casikar accepted Mr Abedini “has a problem at the L4/5 segment on the right side” but did not accept the spinal fusion recommended by Dr Singh was reasonably necessary for his injury. Dr Casikar provided opinion “the expected outcome of the spinal fusion is likely to be very poor” and said “the outcome would be disastrous and he would never be able to get back to any kind of employment. This opinion is based on evidence-based study”. However, in providing such opinion as to the anticipated outcome of the proposed spinal fusion Dr Casikar failed to identify the “evidence-based study” referred and accordingly I consider Dr Casikar’s opinion relevant to the expected effectiveness of the spinal fusion has little evidentiary weight. Dr Casikar described the spinal fusion as “excessive” and provided opinion “a simple hemilaminectomy and rhizolysis will resolve the issue” and enable Mr Abedini “to get back to his pre-injury employment within two to three months after the surgery and do normal hours of work with some restrictions on lifting heavy weights”.
In his report dated 7 March 2022, some nine months after Mr Abedini was assessed by Dr Casikar, Ass Prof Hope reported he had also had the opportunity to assess Mr Abedini in his capacity as independent medical examiner. Like Dr Casikar, while at the time of assessment Ass Hope had available to him the MRI scan dated 8 March 2021, which he said demonstrated L4/5 discopathy with spinal stenosis, it is not evident he had available to him the MRI scan dated “26 April” that Dr Singh had available to him at the time he recommended spinal fusion . Ass Prof Hope provided opinion the spinal fusion recommended by Dr Singh was “reasonably necessary” treatment for Mr Abedini’s injury, particularly so in circumstances where physiotherapy treatment had failed. Relevant to Dr Casikar’s recommended alternate surgical treatment in the nature of a hemilaminectomy and rhizolysis, Ass Prof Hope provided opinion an L4/5 fusion was required due to “significant L4/5 discopathy requiring mechanical stabilisation”.
Relevant to the medical evidence in this matter that is before the Commission, Mr Gaitanis reminded me of r 73 of the Personal Injury Commission Rules 2021 (the Rules). He made particular reference to rule 73(a) which provides:
“The appropriate decision-maker for the applicable proceedings must, when informing itself or themselves of any matter in the proceedings, have regard to the following principles –
(a)evidence should be logical and probative,
… ”
Relevant to the competing medical evidence provided by Dr Casikar and that of Dr Singh and Ass Prof Hope, I am mindful that in Singh v FTW Products Pty Ltd[17] Snell ADP (as he then was) made the following observation:
“The resolution of disputes between medical experts requires a rational examination and analysis of the evidence and the issues (per Ipp JA in Sourlos v Luv A Coffee Lismore Pty Ltd & Anor [2007] NSWCA 203 at [25] citing Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127). In Hume v Walton [2005] NSWCA 148 McColl JA said at [69]:
‘The primary’s judge’s duty was not only to record the evidence but also to record the findings she made based on that evidence: Misfud v Campbell (1991) 21 NSWLR 725 at 728. While the extent of that duty may depend upon the circumstances of the individual case, where there is disputed expert evidence, the ‘parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other’: Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 at [42] per Sheller JA (with whom Beazley JA agreed); see also Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134 at [33] per Santow JA (with whom Sheller JA and Campbell AJA agreed)’.”
[17] [2007] NSWWCCPD 230.
Dr Casikar is a neurosurgeon. Dr Singh is an orthopaedic surgeon, as is Ass Prof Hope. However, Dr Singh is an orthopaedic surgeon with a special interest in spine surgery, and although Mr Gaitanis was critical in submissions of Dr Singh for failing to provide reasoning for his recommendation of an L4/5 fusion, I am of the view Dr Singh is allowed to use his general experience and knowledge as an expert even though it is not stated in his report. Spiegelman CJ (Giles and Ipp JJA agreeing) explained in Australian Security and Investment Commission v Rich[18] at [170]:
“[a]n expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated”.
[18] [2005] NSWCA 152.
Mr Gaitanis was also critical in submissions of Ass Prof Hope in that he said Ass Prof Hope failed to provide adequate reasoning for his acceptance the spinal fusion recommended by Dr Singh is reasonably necessary treatment for the injury Mr Abedini sustained. However, I am of the view it is evident from Ass Prof Hope’s report that he has turned his mind to the fact that some two years after Mr Abedini sustained his injury in the course of his employment with Airway Mechanical he remains significantly symptomatic despite conservative treatment. It is evident Ass Prof Hope has also turned his mind to prognosis (which he considered to be good for significant symptomatic improvement after successful fusion surgery), the effectiveness of the fusion surgery (surgery which he considered to be usually effective), the effectiveness of alternative treatment (in that he noted conservative treatment had failed and diagnostic imaging demonstrated what he considered to be “significant L4/5 discopathy” that required stabilisation with L4/5 fusion rather than the hemilaminectomy and rhizolysis recommended by Dr Casikar) and the acceptance of fusion surgery by the medical profession.
I consider the medical evidence relied on by Mr Abedini in these proceedings to be logical and probative and, as did Ass Prof Hope, I accept the spinal fusion recommended by Dr Singh is reasonably necessary treatment for the injury Mr Abedini sustained to his back on 23 June 2020 in the course of his employment with Airway Mechanical. I prefer the opinions of Ass Prof Hope and Dr Singh to that of Dr Casikar in that Dr Singh is Mr Abedini’s treating orthopaedic surgeon with a special interest in spine surgery who had available to him a later MRI scan dated “26 April” at the time he recommended spinal fusion (being an MRI scan which was not available to Dr Casikar at the time of his reporting) and Ass Prof Hope has provided what I consider to be reasoned comment on Dr Casikar’s opinion (whereas Dr Casikar has provided no comment on Ass Prof Hope’s opinion).
For the reasons discussed above I accept the medical evidence relied on by Mr Abedini in these proceedings is logical and probative as required by r 73 of the Rules and I accept Mr Abedini has discharged the onus of proof required of him. I accept the surgical treatment in the nature anterior lumbar interbody fusion to the L4-5 and posterior fusion L4-5 is reasonably necessary treatment for the injury Mr Abedini sustained to his low back on 23 June 2020 in the course of his employment with Airway Mechanical.

SUMMARY

It is not disputed Mr Abedini sustained injury to his low back on 23 June 2020 in the course of his employment with Airway Mechanical and I have determined the surgical treatment recommended in the nature of anterior lumbar interbody fusion to the L4-5 and Posterior Spinal Fusion L4-5 is reasonably necessary treatment for that injury.
Airway Mechanical is to pay the costs of the anterior lumbar interbody fusion to the L4-5 and posterior spinal fusion L4-5 in accordance with s 60 of the 1987 Act.

[2022] NSWPIC 388

19 July 2022