Al Hilali v Primo Moraitis Fresh Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Al Hilali v Primo Moraitis Fresh Pty Ltd [2024] NSWPIC 64
APPLICANT:	Alaa Al Hilali
RESPONDENT:	Primo Moraitis Fresh Pty Ltd
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	14 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; disputed claim under section 60 in relation to lumbar surgery as a result of agreed injury on 24 August 2018; disputed claim in relation to right thumb surgery as a result of agreed injury on 11 April 2019; Murphy v Allity Management Services and Diab v NRMA Ltd applied; Held – the proposed L5/S1 fusion and decompression surgery together with ancillary treatment is reasonably necessary treatment as a result of the injury on 24 August 2018 and the respondent is to pay the costs; the proposed right thumb CMC arthroscopy and STT Pyrocarbon implant, plus thumb CMC Pyrodisc implant surgery is reasonably necessary treatment as a result of the injury on 11 April 2019 and the respondent is to pay the costs.
DETERMINATIONS MADE:	The Commission determines: 1. The proposed L5/S1 fusion and decompression surgery together with ancillary treatment is reasonably necessary treatment as a result of the injury on 24 August 2018. 2. The respondent is to pay the costs of the proposed L5/S1 fusion and decompression surgery together with ancillary treatment pursuant to the workers compensation gazetted rates. 3. The proposed right thumb CMC arthroscopy and STT Pyrocarbon implant, plus thumb CMC Pyrodisc implant surgery is reasonably necessary treatment as a result of the injury on 11 April 2019. 4. The respondent is to pay the costs of the proposed right thumb CMC arthroscopy and STT Pyrocarbon implant, plus thumb CMC Pyrodisc implant surgery and ancillary treatment pursuant to the workers compensation gazetted rates.

STATEMENT OF REASONS

BACKGROUND

Mr Al Hilali (the applicant) was employed by the respondent, Primo Moraitis Fresh Pty Ltd as a cleaner, having commenced as a full-time employee in 2015.
At the outset of the arbitration hearing an amendment was made to the Application to Resolve a Dispute (ARD), by consent, for the purposes of this hearing only. The applicant asserts that on 11 April 2019 he sustained a s 4 injury to his right thumb. His counsel says he does not abandon the allegation that this injury on 11 April 2019 was also a consequential condition as a result of the injury on 24 August 2018, but that does not need to be determined in these proceedings. The respondent agreed to the case being run on this basis.
Therefore, the ARD was amended to plead two injuries under s 4 of the Workers Compensation Act 1987 (the 1987 Act) as follows:
(a) injury to the lumbar spine on 24 August 2018, and
(b) injury to the right thumb on 11 April 2019.
The claim for compensation is confined to the proposed right thumb CMC arthroscopy and STT Pyrocarbon implant, plus thumb CMC Pyrodisc implant and proposed L5/S1 fusion and decompression together with ancillary expenses.
The respondent’s workers compensation insurer, Employers Mutual NSW Limited, has issued several declinature notices dated 7 January 2022, 14 June 2022, 14 and 12 September 2022, 30 November 2022, and 6 July 2023. However, the respondent’s counsel at the outset of arbitration hearing confirmed that the issues now being relied upon are:
(a) in relation to the injury on 24 August 2018 there is no issue under s 4 of the 1987 Act. The issue relates to both aspects of s60, whether as a result of the injury that the proposed surgery is reasonably necessary treatment, and
(b) in relation to the injury on 11 April 2019 the only issue is whether the proposed surgery to the right thumb is reasonably necessary treatment. There is no issue as to the causation aspect in s60, “as a result of an injury”. There is no issue under s 4.
However, at the commencement of his submissions Mr Barter raised the contents of the Concord Hospital admission summary for 11 April 2019 and seemed to be pursuing an issue about causation of the right thumb injury.[1] Clarification was sought from him and he confirmed that the respondent did not dispute that the applicant injured his thumb on 11 April 2019. The respondent’s contention is that the proposed right thumb surgery is not required as a result of that injury but due to the osteoarthritis of the triscaphoid as opined by Associate Professor Miniter and apparent from Dr Abraszko’s report of 10 January 2019. So both aspects of s 60 are being disputed.
[1] The Concord Hospital record is p 795 of the ARD and the submission starts at 51:50 of the sound recording.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The arbitration hearing took place on 2 November 2023 on the MS teams platform. Mr Bruce McManamey, counsel, instructed by Ms Elmasri, solicitor, appeared on behalf of Mr Al Hilali, who was in attendance. Mr Graham Barter, counsel, instructed by Ms Scott, solicitor, and Mathew M from the insurer represented the respondent.
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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no oral evidence. Counsel made oral submissions which have been sound recorded.

FINDINGS AND REASONS

The medical evidence in relation to the lumbar spine and right thumb is summarised below.
On 31 August 2018 a CT lumbar spine scan was undertaken at the request of Dr Sabri Hasam from PHC Fairfield Chase Medical and Dental Centre. The scan report has the clinical history that the applicant had “acute back pain following heavy lifting”.[2] The radiologist set out his impression that the applicant had at L5/S1 level a broadbased disc bulge with right lateral prominence abutting and slightly compromising the exiting right L5 nerve root. Clinical correlation was advised.
[2] ARD p 132 and Reply p 70.
On 13 September 2018 the medical certificate of Dr Wei Lei, Auburn Healthcare Centre, refers to low back pain and sciatica.[3] On the certificate dated 4 October 2018 the doctor adds “left L4 partial impingement”.[4] Later certificates issued by Dr Hasam just refer to lower back injury and referral to Dr Abraszko.
[3] Reply p 98.
[4] ARD p 133 and Reply p 107.
On 24 September 2018 an MRI Lumbosacral spine scan was undertaken. The clinical history in the report is “L5/S1 broad-based disc bulging, left sciatica”.[5] The radiologist concluded there was “disc bulging of L4/5 level with narrowing of the left exit foramen and partial impingement of the left L4 nerve root likely account for symptoms. Clinical correlation advised.”
[5] ARD p 131 and Reply p 71.
On 6 November 2018 Dr Hasam referred the applicant to Dr Renata Abraszko and refers to lower back pain. There is no mention in the brief referral to the right thumb.[6]
[6] ARD p 640.
Clinical notes are in the ARD from Dr Wei Lei, general practitioner, dating from 25 October 2018 recording the back pain was getting worse and a referral was issued to Dr Darwish.[7] A referral was issued to Dr Sari on 29 October 2018 and noted the applicant had left sided sciatica and the lumbar MRI showed left L4 partial nerve impingement.[8]
[7] ARD p 467.
[8] ARD p 642.
On 10 January 2019 Dr Abraszko reported to Dr Hasam and took a history of the August 2018 work injury, albeit with the wrong date. She noted pain behaviour on examination. In relation to the lumbar spine, she states that Lasègue’s sign on the right at 80°. There was some wasting of 1cm in the right thigh compared to the left but reflexes and sensation were normal. She recommended a right L5/S1 foraminal injection. She also recorded that the applicant was wearing a wrist splint on his right hand and complained of numbness in the thumb. She could not examine the right wrist due to the cast.[9]
[9] ARD p 660.
On 20 February 2019 Dr Pope reported to Dr Hasam when describing the injury in August 2018 that the applicant had:
“…immediate pain, cervicothoracic junction, retroscapular zone to the right lateral arm, to the lateral forearm and occasionally to the wrist and thumb daily, mechanical and non-mechanical, pins and needles, numbness and weakness intermittently.
Lumbosacral junction lower back pain midline, bilateral radiation, minimal symptoms down the legs.”[10]
[10] ARD p 412.
Dr Pope recorded that the applicant had good movements of the lower back and he walked with a normal gait and that investigations revealed a broad-based disc bulging at L4/5 with mild bilateral foraminal stenosis. However, Dr Pope when he sets out his “impression” does not refer to the lumbar spine or right thumb.
On 11 April 2019 the ambulance records state they found the applicant lying on the floor “Pt c/o pain the right shoulder and right thumb and wrist. Pt with very limited English”. It is noted that the applicant “was with work colleagues when he has lowered himself to the floor. At no stage was there any trauma involved per the work mates”.[11]
[11] ARD p 789.
The applicant was taken by ambulance that day to Concord Hospital. In the progress notes there is reference to the applicant wearing his own soft thumb splint. He complained of pain in the right thumb but he is not sure he hurt it when he fell.[12] There are references to longstanding low back pain with radiation down the right leg. An X-ray showed osteoarthritic changes at the STT joint of the carpus.[13]
[12] ARD p 801.
[13] Ard p 803.
On 12 April 2019 the applicant started consulting Dr Atheel Alexander, general practitioner, who recorded in his clinical notes the history of the lumbar spine injury in August 2018. His examination finding was that there was “tender lumbar area, very restricted bendings, SLRT positive Rt. Leg around 45 degrees”.[14] The doctor has continued to see him and recorded ongoing situation in relation to the low back.
[14] ARD p 325.
The entry on 12 April 2019 notes that the applicant has been seen by his regular general practitioner Dr Sabri Hasam. Dr Alexander’s record for 12 April 2019 does not mention the right thumb.[15]
[15] ARD p 325.
However, the entry on 7 May 2019 records that his right wrist and hand are very painful since “the injury”. On examination by Dr Alexander records that the right wrist was tender, there was painful range of motion and no swelling. He found the right PIPJ of thumb was tender, with no swelling and painful range of motion. He records that he requested imaging for a right wrist ultrasound and X-ray and X-ray of the right hand he records “(painful wrist since work injury last year also pain in the thumb PIPJ)”.[16]
[16] ARD p 328.
On 6 May 2019 Dr Alexander issued a referral to Dr Sheridan, neurosurgeon, noting the applicant had been seen by Dr Renata Abraszko and he wanted a second opinion.[17] On 6 May 2019 Dr Alexander also gave the applicant a referral to Dr Van Gelder, neurosurgeon,[18] and in his clinical note stated the applicant could go to see the first of them who was available. On 8 May 2019 the X-rays were performed together with the ultrasound of the right wrist.[19] The clinical history includes “painful wrist since work injury last year. Also pain in thumb PIPJ”. The X-ray of the hand and wrist was reported to show no bony abnormalities.
[17] ARD p 471.
[18] ARD p 473.
[19] Reply p 75.
The entry on 23 May 2019 has the history that the right wrist ultrasound revealed no abnormalities. The doctor records “still in pain since her [sic] had the fall few weeks ago at work when taken to ED. Exam Rt. Wrist tender, painful ROM, no swelling, possible TFCC tear, need MRI on WC”.[20]
[20] ARD p 329.
An entry on 2 July 2019 by Dr Alexander refers to a consultation with an interpreter and Damian from the insurer and Shanel on the phone from the insurer. It is recorded that the insurer was waiting on the previous doctor to see if the wrist was reported from the initial work injury in August 2018 “as patient confirmed he mentioned it to the GP but not his fault if GP did not record it”.[21]
[21] ARD p 332
However, while all the notes from Dr Alexander have been read by me, I do not propose to summarise them further in these reasons. Similarly, I have not summarised the hydrotherapy and rehabilitation reports.
On 18 June 2019 Dr Van Gelder report to Dr Alexander.[22] The doctor recorded complaints of low back pain which can radiate into his posterior right knee and leg. The doctor states that both Dr Abraszko and Dr Pope recommended injections. Dr Van Gelder said the applicant showed considerable impairment, pain behaviour and expression of pain. On examination of the low back the doctor did not find any neurological signs but said there was decreased range of motion in the back with much expression of pain. He referred to the MRI scan as showing minor degenerative disc disease. He said the applicant was unlikely to benefit from operations or injections.
[22] ARD p 671.
On 21 June 2019 Dr Alexander issued a referral to Dr Nazha, pain specialist, noting that Dr Van Gelder had seen the applicant and recommended a pain specialist consultation.[23]
[23] ARD p 476.
On 14 November 2019 Dr Van Gelder reviewed the applicant and reported that the applicant said his back pain is aggravated when turning over when lying, bending, lifting and twisting and it is aggravated when he attempts to stand or sit. He described numbness and paraesthesia that radiates from the back of his knee into his calf and sole and he has some imbalance with walking. Dr Van Gelder again said the applicant does not have indications for neurosurgical treatment.[24] The doctor recommended occupational rehabilitation. He mentioned the applicant’s right thumb has pain and tenderness.
[24] ARD p 674
On 30 October 2020 Dr Alexander referred the applicant back to Dr Van Gelder noting his back pains are getting worse and noting that Dr Van Gelder had recommended an operation but the applicant was not keen then, but is now.[25]
[25] ARD p 523.
On 3 November 2020 Dr Alexander referred the applicant to Associate Professor Papantoniou in relation to a second opinion about his back.[26]
[26] ARD p 525.
On 14 November 2020 Dr Alexander referred the applicant to Associate Professor Nicholas Smith, hand specialist.[27] Associate Professor Smith’s records contain questionnaires filled out by the applicant in which he has marked pain at the base of his thumb and wrist of the right hand.
[27] ARD p 616.
On 15 December 2020 Associate Professor Papantoniou reported to Dr Alexander and relates a detailed history about the applicant’s work accidents.[28] In relation to the lumbar spine the doctor says the right S1 radiculopathy is an intermittent but constant numbness. On examination the doctor says the applicant’s power demonstrated a grade 4/5 weakness in the right L5 distribution although this mostly appeared to be pain inhibition. He had a positive right sciatic nerve stretch test.
[28] ARD p 725.
On 15 January 2021 a CT Lumbosacral spine scan was performed and revealed a disc protrusion at L5/S1 level with osteophytosis and early bilateral foraminal stenosis. A CT guided injection was performed at the same time. The report has the heading that it was for the lumbar spine but under the heading technique it is stated a transforaminal right C4/5 epidural injection was performed. It is not clear if this has a typographical error.[29]
[29] ARD p 122 and Reply p 80.
On 21 January 2021 an MRI lumbar spine scan was performed with the clinical history “lower back pain right S1 radiculopathy” with the radiologist concluding there was “L4/5 disc degeneration with a mild disc herniation not causing significant nerve root impingement and early L3/4 disc degeneration.”[30]
[30] ARD p 121 and Reply p 82.
On 9 February 2021 Associate Professor Papantoniou reported to Dr Alexander that “the radiologist report of the MRI on 21/1/2021 calls this level the L4/ 5 level and the CT scan report from 15/ 1/ 2021 call this level L5/ S1.” The doctor said the pain was associated with the L5/S1 level.[31]
[31] ARD p 722.
On 3 March 2021 an X-ray of the right wrist was performed at the request of Associate Professor Smith. The history on the X-ray is “probable arthrosis” and the finding was “there is STT joint, to a lesser degree 1^st CMC joint osteoarthritic change”.[32]
[32] ARD p 596.
On 3 March 2021 Associate Professor Smith reported to Dr Alexander and diagnosed right mild STT joint (triscaphoid joint) osteoarthritis with irritable FCR (flexor carpi radialis). The report has the history that the applicant has had right wrist and thumb pain since April 2019 when he fell onto the ground at work. On examination Associate Professor Smith found tenderness around the thumb CMC joint with a positive grind sign. Associate Professor Smith stated that the thumb CMC joint appears normal on radiology but he says sometimes this is misleading as there can be an almost complete loss of the articular cartilage arthroscopically with normal radiographs. Associate Professor Smith recommended injections to both areas and continuation of hand therapy.[33] The injections were carried out on 23 April 2021 into the FCR and 28 April 2021 into the STT.[34]
[33] ARD p 585.
[34] ARD p 595.
On 8 March 2021 a CT epidural injection of the lumbar spine was performed at the L5/S1 level at the request of Associate Professor Papantoniou.[35] It was repeated on 3 May 2021.[36] On 28 May 2021 at the request of Dr Moussad a CT guided steroid injection was performed at the L4/5 level.[37]
[35] ARD p 120 and Reply p 84.
[36] Reply p 87.
[37] Reply p 88.
On 1 April 2021 Associate Professor Papantoniou reported to Dr Alexander that after the injection pain was relieved for three days and then the pain radiated down his left hip and now the pain is worse than before the injection.[38] He recommended pain management but anticipated the applicant would come to surgery.
[38] ARD p 718.
On 30 April 2021 Natalia Alfaro, occupational therapist reported to Associate Professor Smith, hand and wrist surgeon, about the applicant’s right thumb and she recommended the wearing of a thumb splint.[39]
[39] ARD p 609.
On 10 May 2021 Associate Professor Smith reported to Dr Alexander that the applicant has right thumb pain, trapezial osteoarthritis and FCR tendinitis. He says “an FCR corticosteroid injection did not help significantly. He has a splint but not settling much. The STT joint remains somewhat irritable”.[40]
[40] ARD p 662.
On 1 June 2021 Associate Professor Papantoniou reported to Dr Alexander that the applicant continues to have left sided lower back pain, which is worse getting out of bed, which he describes as a sharp pain. It is noted that the applicant had two epidural steroid injections at L5/S1 which gave relief for three days. He also had two injections at L4/5 on the same say which only gave relief for two days. The doctor says chronic pain management has failed and the applicant says his pain is becoming unbearable.
Associate Professor Papantoniou advises,
“I believe most of Mr Al Hilali’s lower back pain and sciatica is coming from the L5/S1 level (noting that there is a transitional level at the lumbosacral level that is L5, and that I have labelled this as L5/S1 consistent with the CT scan but distinguishing from the MRI scan which labels it as L4/5).”[41]
[41] ARD p 715.
The doctor adds that non-operative management and chronic pain management has failed and that he has had physical therapies, numerous steroid injections which had diagnosed the correct level but provided poor long-term pain relief. The doctor recommended L5/S1 instrumental fusion.

On 29 October 2021 a CT Lumbo-sacral spine scan was performed at the request of Dr Alexander with the clinical note stating, “flare up of back pain”. At L4/5 level a minor posterior disc protrusion was present with the L4 nerves exiting normally. At L5/S1 a small posterior and central L5/ S1 disc protrusion with contact to the S1 nerves was noted.[42]
[42] ARD p 116 and Reply p 92.
On 16 November 2021 Associate Professor Papantoniou reported to Dr Alexander that the applicant continues to complain of severe left sided lower back pain which is unremitting. He says the applicant has a transitional L5 vertebra and that labelled the disc with the pathology as L5/S1.[43] He recommended an instrumental fusion at this level.
[43] ARD p 712.
On 7 December 2021 at the request of Dr Alexander a CT Lumbo-sacral scan was performed showing a diffuse disc bulge at L4/5 and at L5/S1. At L5/S1 it was noted that there was significant bilateral foraminal stenoses, more marked on the left, and mixed left recess stenosis with potential for bilateral L5 and left S1 neural impingement.[44]
[44] ARD p 114 and Reply p 94.
On 22 December 2021 Dr Alexander referred the applicant to Associate Professor Papantoniou advising he still has long term numbness and pain in the right popliteal fossa which Dr Alexander thought was related to his lumbar spine radiculopathy. He said the applicant was not responding to a high dose of Lyrica.[45]
[45] ARD p 553.
On 23 December 2021 Associate Professor Papantoniou reported to Dr Alexander.[46] He advises that the applicant continues to have severe central and bilateral lower back pain and right lower limb radiculopathy. He added that the lower limb pain is mostly in the right S1 distribution in the posterior thigh, calf and sole of his foot and that he did have some L5 component with the great toe being painful. He described the CT of the lumbar spine showing significant pathology at L5/S1 and he recommended an instrumental fusion at that level.
[46] ARD p 706.
On 4 March 2022 Dr Alexander wrote to the applicant’s solicitors to support the proposal for spinal surgery. The doctor said the alternative would be long term pain management and a rehabilitation and vocational program.[47]
[47] ARD p 90.
On 8 March 2022 Associate Professor Papantoniou reported to Dr Alexander that his lower back pain is severe as is his bilateral S1 radiculopathy and he has a chronic right sided limp from this radiculopathy. The doctor says the limp was evident when the applicant came into the consultation room. He again recommended the L5/S1 fusion. A report was sent to the insurer on 9 March 2022 in response to a request for information from the insurer.[48] Associate Professor Papantoniou explains that he is an orthopaedic surgeon with a sub-speciality of the lumbar spine, hip and knee. He referred to Dr Nair’s report dated 5 November 2021 and advised the examination part of this report is extraordinarily cursory with minimal if any relevant examination being reported. The doctor says it appeared Dr Nair had not actually viewed the radiological films, just recited some reports.
[48] ARD p 699.
Associate Professor Papantoniou sets out in detail the circumstances of the applicant’s injury and subsequent treatment. He says the applicant has had extensive non-operative management and clearly failed. He said it is unrealistic now three and a half years later to expect there be any further improvement from non-operative treatment and the only chance the applicant has to improve his pain profile and functional capacity is surgical intervention. The doctor challenges Dr Nair’s diagnosis of pre-existing pathology and points to the fact that the applicant worked for the same employer for 3.5 years in the same job until he had the accident on 24 August 2018.[49]
[49] ARD p 704.
On 14 April 2022 Associate Professor Papantoniou reported to Dr Alexander that the applicant’s lower back pain is worse, causing him sleep disturbance every night and requiring a significant amount of analgesia. He needs Lyrica twice a day. The doctor states in addition to the lower back pain, he also has a right sided L5 and S1 radiculopathy. He adds the L5 radiculopathy is a combination of numbness and paraesthesia and the right S1 radiculopathy is pain. The doctor recommends again an L5/S1 instrumental fusion as the pain is severe, debilitating and has become progressively worse.[50] He says in the meantime the applicant should avoid any lifting, bending or twisting and continue with physiotherapy, core stability exercise, hydrotherapy, exercise physiology and a supervised gym program.
[50] ARD p 78.
On 11 May 2022 Associate Professor Papantoniou reported to the applicant’s solicitors stating Dr Nair’s history was not correct.[51] He says the applicant has had extensive non-operative management including physical therapy and steroid injections. He answers questions in relation to the appropriateness of the treatment and says the proposed surgery is to attempt to improve the applicant’s pain profile and functional capacity and he believes the proposed surgery is the best option. In relation to the availability of alternate treatment he says non-operative treatment has failed and there are no alternatives that will produce any long lasting effects in terms of improvement. He advises that the proposed surgery is an effective and accepted form of treatment for the pathology identified on all the imaging. And he states it is accepted universally by spinal surgeons as appropriate treatment for this particular pathology.
[51] ARD p 82.
On 30 May 2022 Dr Alexander referred the applicant to Dr Sun, pain management specialist noting the applicant was still in severe pain despite taking Lyrica and Panadeine extra and that he has a problem with non-steroid anti-inflammatory drugs (NSAIDs) due to colitis.
On 7 June 2022 another MRI lumbar scan was performed and reported on 11 July 2022. It revealed a generalised disc bulge at L5/S1 with a small annular fissure, slight distortion of the anterior theca and disc material was encroaching into the L5 nerve root canals but no overt impingement of the exiting L5 nerve root. There was also a mild generalised disc bulge at L4/5 but no neural compression at that level.[52]
[52] ARD p 109.
On 4 July 2022 an MRI scan of the right wrist was conducted at the request of Dr Alexander. The clinical history is “recurrent shoulder and wrist pain post-work injury 2018”. The radiologist’s report is very detailed and refers to severe osteoarthritic change involving the STT joint which he says would be the likely source of the base thumb pain.[53]
[53] ARD p 603.
On 6 July 2022 at the request of Dr Sun a whole body bone scan/SPECT and CT was performed with the clinical history referring to “background of lifting injury in 2018. Ongoing left sided lower back pain with right leg numbness ?Facet ?OA spine.”[54] The conclusion referred to sacralisation of L5 and mild discovertebral degenerative change at L4/5 level and mild left sided L4/5 facet joint arthritis.
[54] ARD p 110 and Reply p 96.
On 12 July 2022 Associate Professor Papantoniou sent an approval request to the insurer to conduct “L5/S1 laminectomy, decompression, discectomy, neurolysis. Posterior, posterolateral and instrumented fusions. PLIF. Bone graft, PRP. Paravertebral nerve blocks. Fat/Fascia graft.” He updated the costs on 6 April 2023 and he sought approval for the ancillary treatment costs.[55] The doctor sent a report the same day to Dr Alexander noting the applicant continues to have severe left sided lower back pain which radiates to his left groin. Associate Professor Papantoniou discussed the bone scan and MRI scan, which he says he has viewed the films as well as the report. He says at L5/S1 there is a large posterior disc bulge, with a loss of height mostly posteriorly and an annular tear of the L5/S1 disc as well as facet joint degeneration and modic changes at the end plates on either side of the L5/S1 disc. He also refers to modic changes at the inferior endplate of L4 on the left side.
[55] ARD p 43.
Associate Professor Papantoniou advises that he still feels the applicant is best served with an L5/S1 instrumental fusion and he may also need an L4/5 fusion. He adds that the clinical picture and distribution of his pain does match the identified pathology on the MRI. He said while the applicant is waiting for this surgery he should avoid any lifting, bending or twisting and continue physiotherapy, self-directed exercises, core stability exercises and a supervised gym program and analgesics.
On 22 August 2022 Associate Professor Smith reported to Dr Alexander that he had diagnosed right STT arthrosis and thumb CMC arthrosis and he recommended a “right STT STPI arthroplasty, CMC arthroplasty, +/- pyrodisc arthroplasty.” Associate Professor Smith says as the applicant’s symptoms have failed to settle and are significant, surgery is an option for him. The doctor explains that he has marked osteoarthritis in the STT joint and so he will excise the distal 4mm of scaphoid with an STPI pyrocarbon implant and he will have a simultaneous thumb CMC joint arthroscopy and if there is significant chondral loss, then a pyrocarbon implant is likely to improve his symptoms. Associate Professor Smith says following this surgery the applicant may have significant improvement with his pain but it is not certain that he will be able to return to heavy work, although it is possible.[56]
[56] ARD p 588.
On 23 August 2022 Associate Professor Smith sent an approval request to undertake the right thumb CMC arthroplasty plus STT pyrocarbon implant, +/- thumb CMC pyrodisc implant at a cost of $6,621 plus an assistant surgeon fee.[57]
[57] ARD pp 42 and 592.
On 10 October 2022 Associate Professor Smith wrote to the insurer. He explained that medical treatment is not only based on investigations but also on history and physical examination and in the applicant’s case these all have suggested significant arthrosis affecting definitely the STT joint and possibly the thumb CMC joint. He adds the thumb CMC joint arthroplasty surgery would proceed if he has significant chondral damage identified during arthroscopy, which he says is the gold standard for assessment of the articular surfaces. He expects with these procedures an improvement of pain and therefore functionality. He noted the insurer ceased the hand therapy after two sessions and said he would have settled by now if it was going to settle without operative intervention.[58]
[58] ARD p 591.
Dr Mohamad Mourad, orthopaedic surgeon, reported to Dr Alexander on 23 November 2022 about the applicant’s right knee but he did note straight leg raising was limited because of back pain.[59] He also has the history that the applicant has right knee pain following a lumbar disc injury at L5/S1 from injury on 24 August 2018.
[59] ARD p 77.
Records from Dr George Hanna from 29 July 2020 to April 2023 refer to low back pain.[60] Dr Alexander had referred the applicant to Dr Hanna for chiropractic treatment.
[60] ARD pp 647-658.
An MRI of the lumbar spine report dated 3 May 2023 compared the scan results with that of 2022 and found a minor further increase in discopathy at L5/S1 with impingement of left transiting S1 nerve and underlying primary disc bulge encroaching on exiting L5 nerves.[61]
[61] ARD p 101.

Dr Assem

On 29 March 2023 Dr Assem provided a medico-legal report to the applicant’s solicitors. In relation to his lumbar spine Dr Assem records the following complaints:
“His main concern is constant pain across his back, worse on the left side that he rates as 5-10/10 on a visual analogue scale. He has difficulty sitting, standing or walking for more than10 minutes. There are pins and needles radiating from the right popliteal fossa to the lateral aspect of his right calf, also his right foot and right big toe. He manages his symptoms with Lyrica.”[62]
[62] ARD p 46.
Dr Assem states that the radiological imaging identified pathology consistent with the symptoms the applicant reported. The doctor diagnosed soft tissue injury aggravating degenerative lumbar disc pathology and facet joint arthropathy with right L5 radiculopathy. Dr Assem described the applicant’s lower back pain as chronic with radiculopathy which has failed to respond to conservative management. He says surgery may be necessary to address the underlying pathology and improve his quality of life.
In his report dated 29 June 2022 Dr Assem addressed the criteria set out in various cases and summarised in Diab v NRMA Ltd,[63] in his answer to question 13 as follows:
“Mr Al Hilali has advanced degenerative lumbar disc pathology with right L5 radiculopathy that is causing constant pain and limiting his ability to sit, stand and walk for more than 10 minutes. He has failed to respond to conservative and only obtained partial temporary relief with a CT guided epidural block. The proposed surgical procedure is therefore reasonably necessary to alleviate his symptoms and improve his functional capabilities. It is also cost effective because it reduces his utilization of health resources and may allow him to return to productive work. Without treatment, he will continue to suffer chronic pain and disability.”
[63] [2014] NSWWCCPD 72, Diab.
Dr Assem added in his first report that although the outcome of a lumbar fusion is less favourable in a workers compensation claim, the applicant has moderate severe mechanical lower back discomfort with radiculopathy that has failed to respond to conservative treatment. He says if he does not have the surgery he will continue to suffer from chronic pain and will need pain management or multidisciplinary rehabilitation.
He also states the injury to the right thumb was following the fall in April 2019. In relation to the claim for proposed surgery Dr Assem expressed his opinion as follows:
“The proposed surgical procedure, which includes right thumb arthroscopy, STT pyrocarbon implant, and thumb CMC pyrodisc implant, may be reasonably necessary for addressing his work-related injury. Associate Professor Smith has identified significant arthrosis affecting both the STT joint and the thumb CMC joint, which has failed to settle despite reasonable hand therapy. Radiographs and an MRI scan have confirmed the presence of significant arthrosis, and arthroscopy of the CMC joint will help define whether there is significant chondral damage that would require surgical intervention.
The success rates of this procedure have been documented in the medical literature, with studies reporting improvements in pain and functionality following surgery for thumb CMC joint arthrosis and STT joint arthrosis.”[64]
[64] ARD p 52.

Dr Nair

Dr Nair is an orthopaedic surgeon who provided the insurer with a medico-legal report dated 24 November 2021 in relation to various alleged injuries.[65] On examination he recorded a 30% reduction in thoracolumbar range of motion globally. He says the applicant has clinical and radiological evidence of lumbar spondylosis. The doctor opines that the applicant has an intrinsic tendency towards the development of degenerative arthritis and he does not see a clear nexus between his work and his conditions. He also stated that the mechanism of injuries are highly unlikely to have caused the conditions listed.
[65] ARD p 37.

Associate Professor Miniter

Associate Professor Miniter provided reports to the insurer dated 9 November 2022[66] and 24 May 2023.[67] He advised in his first report that the applicant is pain-focused and in poor health with significant obesity, however he walks with a normal gait pattern. On examination he found the applicant had a normal straight leg raising manoeuvre but when he performed this manoeuvre gently the applicant complained of severe lower back pain. He said the pain was not well localised and there is no obvious sacroiliac instability nor other local pathology. Associate Professor Miniter found no features of hamstring spasm and his ankle jerks were slightly diminished but present and his knee jerks were normal. He adds that the applicant’s hips rotate freely.
[66] Reply p 47.
[67] Reply p 43.
Associate Professor Miniter also recorded that there was some pain at the base of the applicant’s thumb on the right side which he says would be consistent with the investigations which suggest triscaphoid osteoarthritis.
In this first report Associate Professor Miniter concludes that perhaps this gentlemen has a minor injury to his lower back in 2018 when he was lifting gas cylinders. He said there was an L5/S1 disc abnormality without convincing evidence of compression of a nerve root. He added that he regards him as a very poor candidate for surgery and he would strongly recommend non-operative management and a return to work.
In relation to the right thumb, he says the issues are clearly osteoarthritic and do not require treatment and in any event the outcome from interposition arthroplasty is not necessarily positive in a situation such as the applicant’s. He said it is not unusual to see a loss of wrist movement following such a procedure which would further inhibit the applicant’s ability to work, noting he is right handed. In answer to question 5 he does not recommend the proposed surgery.
Associate Professor Miniter does not recommend any treatment and says the matter should be brought to a close and he be allowed to return to work.
In his second report Associate Professor Miniter reported similar examination findings. He stated that it is possible though unlikely that the applicant had a lumbosacral disc injury but there are no features of nerve compression and he is not a surgical candidate. In relation to his right thumb, the doctor again said there is evidence of triscaphoid osteoarthritis on his scans and this is evident clinically. He said there is no lack of movement between the right and left thumbs. He found the applicant quite suggestible to the location of his pain.

Applicant’s submissions

Mr McManamey summarised the applicant’s statement and medical evidence in relation to the lumbar spine. This has been set out above and I will not repeat it here. The main arguments made by counsel are summarised below.
He submitted that the applicant has a had a range of treatments and he is left considerable disability in relation to his lumbar spine and wishes to have the proposed lumbar surgery. He submits that Dr Alexander who has seen the applicant for some time does support the proposed surgery and he highlights the difficulties with the alternatives such as pain management.
The applicant’s counsel also submitted that the more recent reports of Associate Professor Papantoniou show there has been deterioration of the applicant’s back. He submits the doctor has set out the history and deals with the radiological tests and the fact that the applicant has had two injections and other non-operative management but he recommends surgery at L5/S1. He deals with the cost of treatment, potential effectiveness, accepted treatment, and expected outcome if the surgery is undertaken. Counsel submitted that whether a worker can return to work after the surgery is not the test.
Mr McManamey says the medical evidence from Drs Alexander and Papantoniou support that the applicant has radiculopathy. It is submitted that Dr Assem also supports that the treatment is reasonably necessary treatment as a result of the injury on 24 August 2018. He argues that Dr Nair, who saw the applicant in 2021, did find a 30% reduction in range of motion , although he does not refer to it further. In relation to the proposed surgery, counsel argues that Dr Nair does not specifically address the need for the surgery and he does not address whether there has been any aggravation.
In relation to Associate Professor Miniter’s opinion, counsel submits that he does record that the ankle jerks are diminished but he is silent as to whether this is a sign of radiculopathy. Counsel submitted that the doctor gives a fairly minimal consideration of the matter. In relation to the proposed surgery, it was submitted that he does not deal with this specifically and he does not take into account the findings of the treating doctors over a long period of time. Mr McManamey submitted that Associate Professor Miniter approaches the matter of the basis that there is nothing much wrong with the applicant as a result of these shortcomings he does not really address the question about the proposed surgery. He referred to Associate Professor Miniter’s second report where he says that subtle leg raising to 30° caused low back pain on both occasions when he examined the applicant. Mr McManamey says that this was not noted in Associate Professor Miniter’s first report, but if he did in fact note it on each examination that would support the argument that the pain is reproducible. Counsel criticises Associate Professor Miniter’s reference to inconsistency as it is not really explained.

In relation to the right thumb, Mr McManamey says Associate Professor Miniter says nothing about the right thumb as it is outside his expertise, although under the heading of other information he refers to the applicant having pain at the base of his thumb and the doctor did not examine it. Mr McManamey says the doctor has not considered if the thumb issue could be caused by the April 2019 fall, he just attributes it to osteoarthritis.
Mr McManamey submits the important evidence about the right thumb are those reports from Associate Professor Smith, including 3 March 2021, addressed to Dr Alexander. The history is right thumb and wrist pain from April 2019 when he fell on the ground at work. Counsel referred to the examination findings, which I have summarised above. Mr McManamey submits Associate Professor Smith does not leap into surgery as he embarks on a course of conservative treatment with injections and hand therapy. Counsel referred to the May 2021 report wherein Associate Professor Smith reported that the corticosteroid injection had not helped and the report of August 2022 when Associate Professor Smith recommends the proposed surgery. Counsel submits in this report Associate Professor Smith explains why he recommends surgery and that conservative treatment has not succeeded and the symptoms have not settled. Counsel refers to the applicant’s statement as supporting the continuation of symptoms. Mr McManamey submits the report to the insurer dated 10 October 2022 sets out Associate Professor Smith’s reasoning in relation to the proposed surgery being undertaken. Mr McManamey submits that the insurer can hardly submit that there should be further attempts at non-surgical treatment when they had put an end to the hand therapy.
Mr McManamey submits that Dr Assem supports Associate Professor Smith’s recommendation for surgery and he argues that there is no question that the right thumb injury has materially contributed to the need for the surgery and that the surgery is reasonably necessary treatment. He submits that Associate Professor Miniter does not really support an argument to the contrary.

Respondent’s submissions

In relation to the right thumb injury, Mr Barter submitted that Associate Professor Miniter was of the opinion that there were degenerative changes in the right thumb. He referred to the Concord Hospital admission summary where the applicant’s manager, George, helped with the translation and the description of injury was that he slid down the wall. It is also mentioned that a colleague, Sudiq, reports he lowered himself to the floor. Mr Barter says the applicant gave history that he had right shoulder/neck pain and thumb pain for five months and then it is noted he had a complaint of pain in the right thumb and the patient wearing own soft thumb splint.
Clarification was sought from Mr Barter about this submission and he confirmed that the respondent accepts there was an injury to the right thumb on 11 April 2019. But the respondent relies upon the opinion of Associate Professor Miniter who stated in his report dated 24 May 2023 that the proposed surgery is as a result of the triscaphoid osteoarthritis.[68] He argues that, to extent surgery is reasonable, it results from triscaphoid arthritis. Mr Barter submitted that Dr Abraszko recorded in report dated 10 January 2019 that the applicant was wearing a splint on his right thumb.[69] He submitted that Associate Professor Smith did not have this history, that the applicant had problems with his right thumb before 11 April 2019, and the respondent contends it is far more likely that the requirement for the surgery is to address non-work related problems of osteoarthritis at the base of his thumb, in accordance with the opinion of Associate Professor Miniter.
[68] Reply p 45.
[69] ARD p 660.
Mr Barter submitted in relation to the lumbar spine a similar argument applies. He argues that Associate Professor Miniter says to the extent the applicant has any problem with this back, it is due to the degenerative changes that have been displayed over a period of time. Mr Barter referred to Kooragang Cement Ltd v Bates[70] and submitted that, bearing in mind there has been a lengthy period since the applicant has been at work since April 2019, and yet his back is deteriorating, one would have to be satisfied that the deterioration since the injury is the result of that injury, and due to nothing else, which would break the chain of causation.
[70] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796, Kooragang.
He also submitted that Dr Nair in November 2021 says the applicant had already seen Dr Abraszko, Dr Van Gelder, Associate Professor Smith, Dr Nazha and then Associate Professor Papantoniou before anyone recommended surgery.[71] Mr Barter also submitted that Associate Professor Papantoniou in his report dated 11 May 2022[72] does not rely solely on injury on 24 August 2018 as he refers to the second incident on 11 April 2019 resulting in further lower back pain. Mr Barter submits the Concord Hospital record suggests that 2019 incident was nothing at all, but that Associate Professor Papantoniou seems to place emphasis on the work performed up to 2019 and the incident in April 2019. Mr Barter argues that Associate Professor Papantoniou does not explain why there has been deterioration in the lumbar spine since April 2019.
[71] Reply p 38.
[72] ARD p 82.
Mr Barter submits that Associate Professor Miniter is of the view that the applicant should not have the surgery at all, but Mr Barter contends if the Commission were to find he should have the surgery it is difficult to attribute the need for that surgery to the injury on 24 August 2018 due to the above factors and Associate Professor Miniter attributes any need for surgery to the degenerative changes in a man of his age.

Applicant’s submissions in reply

Mr McManamey in reply submitted that the test is not whether the need for surgery results solely from the injury. He points out that the respondent has not disputed there was an injury to his thumb on 11 April 2019 and he submits it clearly has played a role in the need for surgery, and it does not matter that there were some symptoms beforehand.
In relation to the lumbar spine, Mr McManamey says the argument made by the respondent is that the lumbar spine condition is the natural progression of degenerative change but he says Associate Professor Miniter does not say this, that Associate Professor Miniter does not give any weight to an injury. In relation to the respondent’s argument about delay in surgery being recommended, Mr McManamey submits that Dr Abraszko and Dr Van Gelder were focusing on conservative treatment and by the time the applicant saw Associate Professor Papantoniou and he recommended surgery, it was because the conservative treatment had been exhausted. He submits this is proper medical practice to try conservative treatment first. Mr McManamey submits at the outset there was shown to be abnormality at L5/S1 and the injury on 24 August 2018 has certainly aggravated this pathology.
Mr McManamey seeks a finding and order that the respondent is liable for the costs of both proposed lumbar and right thumb surgeries.

DETERMINATION

Lumbar spine

The respondent has admitted that the applicant sustained an injury to his lumbar spine on 24 August 2018. Dr Nair, while finding that the applicant has clinical and radiological evidence of lumbar spondylosis, makes no attempt to consider if that work accident aggravated any underlying, but hitherto asymptomatic degenerative changes. In Rail Services Australia v Dimovski[73] Handley JA stated where a frank incident aggravated an underlying degenerative condition, it could properly be regarded as injury simpliciter within s 4(a) of the 1987 Act.
[73] [2004] NSWCA 267, Dimovski.
I find that Dr Nair has not applied the appropriate tests when considering if the applicant had a work-related lumbar injury on 24 August 2018. Furthermore, I find that this has affected all of the conclusions he has reached. He says, “I do not see a clear nexus between his work and the conditions listed in Question 1”. He was specifically asked in question 4 had any pre-existing condition been aggravated by the applicant’s employment and he does not answer this question adequately. He repeats that the applicant has pre-existing degenerative conditions and then merely states “there is no evidence of acuity”.
As a result I find I can place no reliance on Dr Nair’s report. I also accept the criticisms that Associate Professor Papantoniou made in his reports dated 8 March 2022 and 11 May 2022 of Dr Nair’s opinion. These reports have been summarised earlier in these reasons. A stark point of difference in the two doctors’ approach is the fact that Associate Professor Papantoniou has actually viewed the radiological imaging and not just relied upon reports.
Mr Barter submitted that he relied upon the history in Dr Nair’s report, however I find the history to be scant. Dr Nair mentioned that the applicant had seen various specialists and that the back surgeons have elected to manage his condition non-operatively but he made no attempt to engage with any of the treating medical evidence.
I accept the applicant’s submission that the fact that the applicant had seen several specialists who had opted to treat him with conservative measures does not necessarily undercut the opinion of Associate Professor Papantoniou in relation to the need for surgery. Associate Professor Papantoniou when he first started to treat the applicant in December 2020 did not recommend surgery then. He had more radiological testing undertaken as well as epidural injections in the lumbar spine in March and May 2021 and recommended pain management. On 1 April 2021 he seems to have first raised the possibility that the applicant may come to surgery and by 1 June 2021 he recommended an L5/S1 instrumental fusion be undertaken. In his report at that time he explains the reasons for him recommending surgery, that non-operative management and chronic pain management, physical therapies, and steroid injections had failed to provide the applicant with long term relief and the applicant’s pain had become worse.
The respondent submitted that the delay in the surgery being recommended in 2022 was somehow relevant, noting the applicant had ceased work in 2019. I do not accept this submission because it is evident in this time frame the applicant was being provided with ongoing treatment for his back, and as Mr McManamey submitted it is a feature of appropriate medical care that he was treated conservatively for a period.
The respondent also argued that there is no explanation for the deterioration of the applicant’s lumbar spine. I consider when one reads all of Associate Professor Papantoniou’s many reports it is evident he has attributed the ongoing lumbar issues to the workplace injury on 24 August 2018. His report dated 15 December 2020 has a very detailed history about the mechanism of injury in that accident. In that report the doctor recounts how in January 2019 he had been referred to have an L5/S1 foraminal steroid injection. This obviously relates to Dr Abraszko’s treatment and this was before the second incident on 11 April 2019. Associate Professor Papantoniou goes into quite a bit of detail as to why there was a delay getting this injection. However, the point is that it was recommended well before the second incident.
The respondent submitted that Associate Professor Papantoniou did not confine his diagnosis of the back issue to the incident on 24 August 2018, that he also included the incident on 11 April 2019. However, in the report dated 15 December 2020 the doctor carefully relates the circumstances and work duties undertaken by the applicant after the injury on 24 August 2018 and up to 11 April 2019 and he describes the second incident on 11 April 2019 but he does not state that there was further injury to the lumbar spine in that history. He states when the applicant was doing the increased work duties he re-developed neck pain as well as right posterior shoulder and scapular pain and this pain was so severe it brought him to tears and then he refers to the applicant losing his balance. Associate Professor Papantoniou does not in this history say there was further lumbar injury.[74]
[74] ARD p 725.
However, later in his report under the heading opinion he says the applicant “has suffered multiple injuries to his cervical and lumbar spines as a result of his work injuries. The history as given is consistent with his injuries having been caused by his work injuries.” I find one needs to be careful reading this part of the report because the doctor has been referring to in this report to more than just the injury to the lumbar spine as other body parts were considered. In any event, as was submitted by Mr McManamey the pathology concerning which Associate Professor Papantoniou wants to do the surgery is L5/S1 level and this has been evident since before the second incident. Also, Mr McManamey submits the authorities provide that the injury does not have to be the only cause of the need for surgery.
This submission is obviously a reference to [57] of the decision in Murphy v Allity Management Services[75] where Roche DP stated, “the work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the costs of that treatment is recoverable under s60 of the 1987 Act.” He added at [58]:
“Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[75] [2015] NSWWCCPD 49 Murphy.
The respondent submitted that applying Kooragang the Commission should not find it was the lumbar injury on 24 August 2018 that has resulted in the need for the proposed surgery. It argued that the delay in the proposal for the surgery could indicate a break in the causal chain, however I find no evidence of this and as noted above I accept the applicant’s argument that the L5/S1 area has been apparent as the source of the applicant’s lumbar issue from the outset. Furthermore, I note that while Dr Abraszko was treating the applicant conservatively in January 2019 she had recommended a steroid injection at the L5/S1 level.
Also, the respondent relies on Associate Professor Miniter’s opinion that the pathology is pre-existing. However, I reject Associate Professor Miniter’s opinion because he has not sufficiently considered the evidence from Associate Professor Papantoniou, that the applicant has radiculopathy. Nor has Associate Professor Miniter adequately considered whether any underlying asymptomatic pathology was aggravated in the injury of 24 August 2018. Associate Professor Miniter has approached the matter by being sceptical of the applicant’s presentation, being pain-focused and I find this has clouded his opinion in considering Associate Professor Papantoniou’s findings. Even if there is an element of the applicant being pain focused, as was commented on by Dr Abraszko and Dr Van Gelder, I find it is significant that Associate Professor Papantoniou has examined the applicant on many occasions over many years, and yet he has found he suffers from genuine lumbar injury. He has considered a vast array of radiological tests and the outcome of the steroid injections which he said have helped confirm the area of pain. The doctor has also explained the nomenclature when reading the CT and MRI scans and confirmed the area of injury is L5/S1. I find Associate Professor Miniter, by comparison, has not conducted such a thorough analysis as Associate Professor Papantoniou and for these reasons I prefer the opinion of Associate Professor Papantoniou to that of Associate Professor Miniter. In addition, I find Dr Assem and Dr Alexander support the opinion of Associate Professor Papantoniou.
Applying the principles in Murphy, I find the injury on 24 August 2018 has materially contributed to the need for the surgery proposed by Associate Professor Papantoniou.
At [63] above I observed that Dr Assem has considered the factors of reasonably necessary treatment as set out in Diab, I accept that evidence as it is consistent with the opinion given by Associate Professor Papantoniou. I find that the proposed surgery is reasonably necessary treatment. Associate Professor Miniter did not consider any treatment was needed and I have explained why I have not accepted his opinions. As Associate Professor Papantoniou has explained the raft of conservative treatment has not resulted in long term pain relief and he considers the proposed surgery is the best option to achieve this. He has given a carefully considered opinion and has acknowledged in workers compensation case sometimes the optimal outcome is not achieved but nonetheless he feels surgery should be undertaken. The respondent did not make a submission about the cost and I am satisfied the cost is within an appropriate range. I also accept that the type of surgery being proposed is an accepted treatment.
It follows from the above findings that I find that the claim for the proposed L5/S1 fusion and decompression (together with ancillary treatment and costs) is reasonably necessary treatment as a result of the injury on 24 August 2018 and I order the respondent to pay the costs under the workers compensation gazetted rates.

Right thumb

In relation to the right thumb, there are two pieces of evidence which the respondent submits shows that the applicant had a problem with his thumb before 11 April 2019. Dr Abraszko in her report dated 10 January 2019 recorded that the applicant was wearing a wrist splint on his right hand and complained of numbness in his right hand. In the Concord Hospital admission notes there is the history that he has had thumb “pain for last 5 months since work related injury”. It is also recorded “C/o pain in right thumb. Pt wearing his own soft thumb splint. not sure he hurt it when he fell.” I also note Dr Pope in report dated 20 February 2019 refers to the applicant have pain in his right wrist and thumb, however he does not give a diagnosis about it.
If it had only been the Concord Hospital notes about the prior right thumb one might not have placed particular weight on this history given the applicant’s poor command of English. However, Dr Abraszko’s record, which was three months earlier, is that he complained of numbness in his right thumb and Dr Pope notes this as well so this gives credence to the history at Concord Hospital. Unfortunately, there are not many records before the Commission from the general practitioner, Dr Sabri Hasam, before 11 April 2019 to ascertain the nature of the pre-11 April 2019 thumb issue.
Records from Dr Alexander start with a consultation on 12 April 2019 and he has the history that the applicant has been seen by his regular general practitioner Dr Sabri Hasam. Dr Alexander’s record for 12 April 2019 does not mention the right thumb.[76]
[76] ARD p 325.
However, the entry on 7 May 2019 records that his right wrist and hand are very painful since “the injury”. On examination Dr Alexander records that the right wrist was tender, there was painful range of motion and no swelling. He found the right PIPJ of thumb was tender, with no swelling and painful range of motion. He states that he requested imaging for a right wrist ultrasound and X-ray and X-ray of the right hand. He records for that imaging request “(painful wrist since work injury last year also pain in the thumb PIPJ)”.[77]
[77] ARD p 328.
The entry on 23 May 2019 has the history that the right wrist ultrasound revealed no abnormalities. The doctor records “still in pain since her [sic] had the fall few weeks ago at work when taken to ED. Exam Rt. Wrist tender, painful ROM, no swelling, possible TFCC tear, need MRI on WC”.[78]
[78] ARD p 329.

An entry on 2 July 2019 by Dr Alexander refers to a consultation with an interpreter and Damian from the insurer and Shanel on the phone from the insurer. It is recorded that the insurer was waiting on the previous doctor to see if the wrist was reported from the initial work injury in August 2018 “as patient confirmed he mentioned it to the GP but not his fault if GP did not record it”.[79]
[79] ARD p 332
The applicant in his statement does not refer to injuring his thumb in the incident on 24 August 2018, but clearly he had pain in his right thumb before 11 April 2019 as Dr Abraszko and Dr Pope recorded this.
Interestingly, despite these references to right thumb pain before 11 April 2019, the insurer in its s 78 notice dated 30 November 2022 states “Based on the medical evidence, we feel that you have injured right thumb at work on or about 10 April 2019 [sic] and EML recommends you lodge a new claim for your right thumb injury.”[80] In the most recent dispute notice dated 6 July 2023 the insurer repeats their position that the clinical records from Concord Hospital and the reports of Associate Professor Smith “corroborate right wrist/thumb symptoms following the unrelated fall in 2019.”[81] In the same notice they refer to Associate Professor Miniter’s report dated 9 November 2022 that any incident, if any, was confined to a subsequent fall event in 2019 which they dispute was related to the workplace injury on 24 August 2018.
[80] Reply p 18.
[81] Reply p 32.
Furthermore, the respondent’s counsel confirmed during the arbitration hearing that there was no dispute under s 4 of the 1987 Act that the applicant had injured his thumb in the incident on 11 April 2019.
Yet the respondent submitted because Associate Professor Smith did not have a history about the prior right thumb symptoms one cannot rely on his conclusion that the proposed surgery results from the injury on 11 April 2019.
It is the case that the applicant has the onus of proof and it would have been helpful had Associate Professor Smith been made aware of these references in the reports of Dr Abraszko and Dr Pope and the Concord Hospital notes. It would also have been of assistance if the applicant had dealt with this evidence in his statement.
Associate Professor Miniter also does not give an opinion about these earlier references to right thumb pain.
The respondent submits the applicant’s case in relation to the right thumb surgery is confined to it being as a result of the injury only on 11 April 2019. It submits without a report from Associate Professor Smith dealing with the pre-injury situation the Commission should find the applicant has not discharged his onus of proof and an award for the respondent should be found in relation to the claim for the proposed right thumb surgery.
However, an X-ray was conducted at Concord Hospital of the right thumb on 11 April 2019. The clinical history is “fall today c/o worse hand pain, thumb; intermit tender base of thumb; scaphoid view pls”.[82]
[82] Reply p 61.
This reference to “worse” hand pain and “tenderness” at the base of the thumb, I find, is consistent with the respondent’s concession that the applicant did injure his right thumb on 11 April 2019. In addition, I find the entries in Dr Alexander’s clinical notes on 7 and 23 May 2019 are significant because he found on examination on those dates tenderness and painful range of motion at the base of the thumb. This is consistent with this entry at Concord Hospital and Dr Alexander’s examinations are within weeks of the injury on 11 April 2019.
The fact that he had prior thumb complaints is relevant, but as Mr McManamey submitted there can be multiple causes for the need for surgery. These other causes may also include underlying osteoarthritis and possibly injury on 24 August 2018. However, I cannot make a finding about such an earlier potential injury noting the way the matter was run by the parties.
I have carefully considered all of the evidence and have come to the view that the injury, which the insurer has conceded occurred on 11 April 2019, has materially contributed to the need for surgery proposed by Associate Professor Smith and therefore a finding is made that the need for the proposed surgery results from that injury. This painful range of motion and tenderness has continued, as is evident from Dr Alexander’s records and the reports of Associate Professor Smith.
As to the reasonable necessity for the surgery, Associate Professor Miniter, when asked in question 5 of his report dated 9 November 2022 as to whether the proposed right thumb surgery is reasonably necessary, expresses the opinion that he does not feel confident that the management of the CMC and STT osteoarthritic change at the thumb base will be managed effectively by the proposed surgery. He does not elaborate and say why. In answer to question 7 he says he expects a poor outcome from such surgery and it will present the applicant with a further reason not to return to work in the longer term. This demonstrates a somewhat cynical approach by Associate Professor Miniter, which I believe has coloured his opinion. I prefer the opinion of the hand specialist, Associate Professor Smith, who I find has more expertise in the area of hand surgery.
Associate Professor Smith is of the view that further hand therapy now will not assist the applicant. Considering the matters discussed in Diab such as cost, availability of alternate treatment and whether the type of surgery is recognised as being appropriate, I find, are satisfied by the opinions proffered by Associate Professor Smith.
I find that the proposed right thumb CMC arthroscopy and STT Pyrocarbon implant, plus thumb CMC Pyrodisc implant is reasonably necessary treatment as a result of the injury on 11 April 2019. I order the respondent to pay the costs of the same and any ancillary treatment costs in accordance with the workers compensation gazetted rates.

[2024] NSWPIC 64

14 February 2024