Ali v First Choice Tiling Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ali v First Choice Tiling Pty Limited [2021] NSWPIC 401
APPLICANT:	Barkat Ali
RESPONDENT:	First Choice Tiling Pty Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	08 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim pursuant to section 60 of the Worker’s Compensation Act 1987 for the costs of an incidental to a proposed lumbosacral fusion surgery; whether surgery “reasonably necessary”; concurrent psychological condition and treatment recommended; whether radiological indications for the proposed surgery; Held - pathological explanation for the applicant’s symptoms found by applicant’s surgeon and expert; Diab v NRMA Ltd considered and applied; respondent to pay the costs of and incidental to the proposed surgery.
DETERMINATIONS MADE:	1. The L5/S1 spinal fusion through anterior and posterior approaches proposed by Dr Geoffrey Rosenberg is reasonably necessary as a result of the injury on 18 December 2018.
ORDERS MADE:	2. The respondent to pay the costs of and incidental to the surgery proposed by Dr Rosenberg in accordance with s 60 of the Workers Compensation Act1987.

STATEMENT OF REASONS

BACKGROUND

Mr Barkat Ali (the applicant) was employed by First Choice Tiling Pty Limited (the respondent) on 18 December 2018 when he slipped from a ladder causing him to fall and sustain multiple injuries.
On 13 May 2020, the Workers Compensation Commission issued a Certificate of Determination in which it was determined that the applicant sustained an injury to his cervical spine and lumbar spine in the fall on 18 December 2018.
Approved Medical Specialist, Dr Mohammed Assem, issued a Medical Assessment Certificate on 8 September 2020, in which he determined that it was premature to assess permanent impairment of the lumbar spine until further investigations and treatment of suspected right S1 radiculopathy were undertaken.
On 6 March 2021, the applicant’s surgeon, Dr Geoffrey Rosenberg sought approval from the respondent’s insurer for a fusion of the applicant’s lumbosacral spine.
Liability for the claimed treatment was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 16 April 2021, on the basis that the treatment was not reasonably necessary as a result of the injury on 18 December 2018.
The applicant sought internal review of that decision pursuant to s 287A of the 1998 Act. The decision to dispute the claim for surgery was maintained in a notice dated 1 July 2021.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 6 July 2021. The applicant seeks compensation pursuant to s 60 of the Worker’s Compensation Act 1987 (the 1987 Act) for the costs of and incidental to the L5/S1 spinal fusion through anterior and posterior approaches proposed by Dr Rosenberg.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:

(a) whether the L5/S1 spinal fusion through anterior and posterior approaches surgery proposed by Dr Rosenberg is reasonably necessary at the present time.

PROCEDURE BEFORE THE COMMISSION

The applicant appeared for conciliation conference and arbitration hearing on 7 September 2021. The applicant was represented by Mr Ross Hanrahan of counsel, instructed by Ms Stefania Boitano. The respondent was represented by Ms Kavita Balendra of counsel, instructed by Ms Serena Bentley. A representative from the insurer was also 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 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:

(a) ARD and attached documents, and
(b) Reply and attached documents.

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

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by him on 3 March 2020.
The applicant described the injury on 18 December 2018 and stated that he began to experience increasing pain in his back with a strange burning sensation over both feet during his admission to hospital after the fall.
The applicant stated that he had lost significant functional ability in his back and was unable to walk without having to stop and rest due to pain.

Medical Assessment Certificate

In the Medical Assessment Certificate issued by Dr Mohammed Assem on 8 September 2020, the applicant is said to have reported symptoms in the lumbar spine as follows:
“His main concern is constant severe pain across his lower back that he rates as
15-20/10 on a visual analogue scale. He obtains temporary relief with analgesia or physiotherapy treatment. He has difficulty sitting, standing or walking for long periods. There is a burning pain / pins and needles involving the plantar surfaces of both feet.”
Dr Assem diagnosed a soft tissue injury to the lumbar spine and said there were no significant inconsistencies in the applicant’s physical presentation. The applicant’s movements were however accompanied by pain behaviour in the form of grimacing and vocalisation.
Dr Assem found the applicant had not yet reached maximum medical improvement in relation to the lumbar spine stating:
“He has clinical signs of radiculopathy without radiological evidence of lumbar disc pathology. He therefore requires further investigations to determine the cause of his neurological signs observed.
…
He also complains of constant severe pain across his lower back. There is a burning sensation in his feet. He had sensory loss over the plantar surface of his feet and atrophy of his right calf but there is no concordance evidence on radiological imaging of any significant pathology to account for the symptoms reported. I note that Dr Adie also documented a burning sensation over both feet. Similar symptoms were recorded by Dr Endrey-Walder. Given the MRI scan of his lumbar spine was normal apart from bilateral pars defects at the L5/S1 level, I had difficulty determining the cause of the right calf atrophy and symptoms in his right foot documented by other medical examiners. I have therefore concluded that it was premature to assess permanent impairment of his lumbar spine until he has further investigations and treatment of suspected right S1 radiculopathy.”

Dr Oreb

The applicant’s general practitioner, Dr Zelko Oreb, prepared a report dated 3 June 2019 in which was noted that the applicant sustained an injury to his back in the event on 18 December 2018. Dr Oreb noted that the applicant continued to complain of severe pain in the back despite strong analgesia and had been referred to a pain clinic for ongoing pain management. Dr Oreb described the applicant as “extremely pain focused”.
On 25 April 2021, Dr Oreb prepared a further report in which he described the applicant continuing to complain of lower back pain and pain radiating into both legs with paraesthesia in the soles of his feet described as a burning sensation. Walking for more than five minutes caused increasing pain in his calves and pins and needles in the soles of his feet. The applicant relied on strong analgesia to manage his pain and the burning sensation in his feet. The paraesthesia, pins and needles and burning sensation affected his sleep and the applicant required medication for sleep.
Dr Oreb stated:
“As Mr Ali's lower back problems were getting worse rather than improving he was referred to Dr Rosenberg (Orthopaedic Surgeon). Dr Rosenberg confirmed Mr Ali had a pars defect of the lumbo-sacral level with Grade 1 spondylothesis. There is no significant compression but there is some exit foraminal narrowing. These findings have been life long but his fall has rendered the motion segment unstable.
Mr Ali's lower back injury is not a musculo-ligamentous strain as this would have improved over the past two years but unfortunately his back symptoms are worsening.
Dr Rosenberg felt that Mr Ali's symptoms would improve with surgery and that he required a lumbo-sacral fusion via anterior and posterior techniques.
Mr Ali is permanently unfit for his pre-injury occupation and fitness for work other than in his pre-injury occupation is uncertain and will greatly depend on the results following back surgery.”

Dr Hyde

Consultant psychiatrist, Dr Gordon Hyde prepared a report for Dr Oreb on 14 April 2020. Dr Hyde noted the injury on 18 December 2020 and said that the applicant reported a cluster of symptoms such a sad mood, lack of energy, loss of motivation and reduced appetite. The applicant was struggling with chronic pain and pain that interfered with sleep. The applicant reported intrusive thoughts and flashbacks of falling from a height. The applicant felt hypervigilant and was not enjoying life as before. These symptoms were causing the applicant significant distress and interfering with his occupational and daily functioning.
Dr Hyde diagnosed a major depressive disorder, moderate to severe, without psychotic features and post-traumatic stress disorder.
Dr Hyde recommended the applicant increase his dosage of antidepressant medication and obtain a referral to a psychologist for structured cognitive behaviour therapy with focus on gradual exposure therapy, negative automatic thoughts, relaxation strategies and mindfulness. Lifestyle modification such as scheduling activities and regular exercise was also discussed.

Dr Rosenberg

Orthopaedic surgeon, Dr Geoffrey Rosenberg, prepared an initial report for Dr Oreb on 11 December 2020, in which he stated:
“To examine he is stiff and uncomfortable. He is stooped. He can barely forward flex to 'his knees. There is a palpable step in bis lumbar spine and it is tender. At rest his neurology is normal and straight leg raise is unimpeded, but it does reproduce some back pain. Hips are unaffected.
I have had the chance to review all his radiology including MRIs, x-rays and CT scans. These confirm pars defects at the lumbo-sacral level with a Grade I spondylolisthesis. There is no significant compression however but there is some exit foraminal narrowing at the lowest level. These findings have been present all his life and have been stable. The significant injury he suffered by falling off the ladder has now rendered the motion segment unstable. It will not improve without surgical intervention. He is quite incapacitated and I think it reasonable to offer him such intervention particularly given the longevity and severity of symptoms.”
Dr Rosenberg proposed a lumbosacral fusion performed via anterior and posterior techniques.
Dr Rosenberg prepared a further report on 14 May 2021 in which he reiterated the findings and opinions expressed above.
Dr Rosenberg diagnosed instability through L5 pars defects causing back and leg pain. The symptoms were unlikely to settle without surgical intervention and were a direct result of the fall off the ladder. Dr Rosenberg said he suspected that the applicant would never be pain-free without surgical intervention.

Asked whether the surgery proposed was a reasonably necessary treatment for the work-related injury, Dr Rosenberg responded:
“I believe surgery is a reasonably necessary treatment. Alternate treatments have not helped. It is unlikely that any further physio or hydrotherapy or massage or acupuncture would benefit him. Steroid injections have no role to play. Pars defects are present in up to 5% of the population. He was asymptomatic historically prior to the accident. It is my experience that once a person suffers such a significant trauma, by way of injury to what had been a stable pseudo-arthrosis through the pars defects, they are unlikely to improve without surgical intervention. In this instance he will remain symptomatic.
The cost of a one level fusion would be in the order of $40,000. The need for this fusion is a direct result of the work related incident on 18 December 2018.”

Dr Habib

The applicant relies on a medicolegal report prepared by orthopaedic surgeon, Dr Sheikh M Habib, dated 14 May 2021.
Dr Habib took a history of the injury on 18 December 2018, the history of symptoms that the lumbar spine and the referral to Dr Rosenberg. Dr Habib noted Dr Rosenberg’s opinions as expressed in his report of 11 December 2020 and his proposal for surgery.

Dr Habib noted that the applicant was managing his injury through Targin, Brufen, paracetamol, Axit and psychological counselling. The applicant attended the pain management clinic but this was suspended due to Covid-19 restrictions.

The applicant complained of low back pain radiating to both buttocks down the lower limbs, right more than the left side, accompanied by paraesthesia affecting the soles of both feet.

Examination of the lumbar spine revealed tenderness at the step deformity. Back movements were moderately to severely restricted due to the complaint of pain. Moderate low back guarding was noted.
Dr Habib diagnosed an aggravation injury of the lumbosacral asymptomatic condition of pars interarticularis defects making it severely symptomatic.
With regard to the proposed treatment of the lumbar spine, Dr Habib stated:
“Dr Rosenberg, spinal surgeon has recommended L5/S 1 spinal fusion through anterior and posterior approaches, according to Mr Ali with 60% rate of success. Even though the bilateral pars inter-articularis defects are developmental, but were asymptomatic. The fall / injury to the back on 18/12/18 has made it severely symptomatic. Had it not been for the said fall, the condition could have remained asymptomatic. The need for surgery at this stage / place in time only arose due to the back injury making the asymptomatic into severely symptomatic one. The recommended surgery, in the light of the above is necessary and reasonable. I'll however recommend intensive psychological counselling for his psychological state and to wean him off the large doses of narcotics and NSAID.”

Dr Maloney

The respondent relies on a medicolegal report prepared by Dr Peter Maloney, dated 30 March 2021.

Dr Maloney took a history of the injury on 18 December 2018. With respect to lumbar symptoms, Dr Maloney noted:
“He complains of low back pain with pain radiating into both legs with paraesthesiae on the soles of the feet which he said are always burning. He states that he has paraesthesiae into the great toe bilaterally. He states that walking for even five minutes causes increasing pain in his calf and pins and needles in the soles of his feet. He told me that he is better with massage. He suffers with a sleep disturbance.”
Dr Maloney’s examination of the lumbar spine revealed:
“Examination of his back revealed paraspinal muscle spasm bilaterally. His lumbar spine movements were restricted because of pain. He was unable to bend forward without complaints of pain. Straight leg raising was to approximately 45° bilaterally. Deep tendon reflexes were present and symmetrical. Power, tone and muscle bulk were uniformly diminished.”
Dr Maloney noted that it was difficult to take a history and examine the applicant due to interpreting difficulties. On the basis of the physical examination and the MRI scans, Dr Maloney expressed the opinion that the injury to the lumbar spine was a musculoligamentous strain rather than physical structural abnormality of either the vertebral bodies or discs with compression of the exiting nerve roots. Dr Maloney said,
“The pars defect and slip are of long standing and the transiting and exiting nerve roots appear intact and non-compressed.”
Asked whether the surgery proposed by Dr Rosenberg was reasonable and necessary, Dr Maloney responded:
“Obviously, a case can be made for surgical intervention to be undertaken. The investigations, however, do not support the extent and severity of symptoms complained of by Mr Barkat.
The symptoms, he says, are unrelenting and are not relieved by rest. He is on a high dose of opiate medication and he has a psychiatric problem of a major depressive disorder as well as post traumatic stress disorder. Under the circumstances I think that the likelihood of surgical intervention being of any benefit to Mr Barkat is small.
I would embark upon ongoing physical activity including injection therapy and psychiatric treatment before once again visiting the possibility of surgical intervention to his back.
I note that Dr Hyde in his letter of 14 April 2020 to Dr Oreb advised a referral to a Psychologist for a structured cognitive behavior therapy with the focus on ‘gradual exposure therapy, negative automatic thoughts, relaxation strategies and mindfulness is recommended’. Mr Barkat states that no such treatment has taken place.
…
Mr Barkat is not being actively treated at this point in time other than physical therapy. I think that it is important that the suggestions of Dr Hyde (Consultant Psychiatrist) be followed up and that thought be given to injection therapy, particularly in the lumbar spine.”

Applicant’s submissions

Mr Hanrahan submitted that it was unusual for a respondent to intervene in a treatment regime. It was a matter between the clinician and the patient as to the most appropriate treatment. The applicant had undertaken a number of alternative treatments, which had been unsuccessful.
Mr Hanrahan noted that the applicant had undergone previous surgery in relation to his upper limb following which there was a slow but steady progression.
Mr Hanrahan referred to the decision in McEvoy v Southern Cross Homes (Broken Hill) Inc[1] and the analysis of the general principles in determining the question of whether treatment is reasonably necessary within the meaning of s 60 of the 1987 Act. Mr Hanrahan noted that in that case there was considerable doubt as to the diagnosis of the applicant’s condition.
[1] [2001] NSWCC 168 (22 June 2001).
Mr Hanrahan submitted that in the present case there was some debate as to the effectiveness of the treatment but that was insufficient to warrant any intervention in the relationship between Dr Rosenberg and the applicant.
Dr Rosenberg’s opinion was supported by Dr Habib. Dr Rosenberg obtained a history, examined the applicant and noted a palpable step at L5/S1. There was pain and investigations were considered. Dr Rosenberg gave the opinion that even though there were pre-existing congenital abnormalities, they were previously asymptomatic. The fall had rendered this part of the spine unstable and symptomatic. The fusion was designed to stabilise that level and there was a clear path to resolution of the symptoms. That opinion was not, in Mr Hanrahan’s submission, cavilled with to a great extent by Dr Moloney.

Mr Hanrahan submitted that there were aspects of Dr Maloney’s report that lent support to the applicant’s position. The history of the fall and pain radiating to both legs was noted. The medication of Targin was prescribed for the radiculopathy of the legs and would not be required if the surgery was successful.
Mr Hanrahan noted that none of the doctors challenged the radiology although Dr Maloney considered the injury was a musculoligamentous strain. Dr Maloney had not addressed the clear step in the lumbar spine and Dr Rosenberg’s view that this pathology was rendered symptomatic in the fall.
Mr Hanrahan submitted that the extent and severity of the applicant’s symptoms may well be amplified by the applicant’s circumstances and psychological symptoms but there was nevertheless an identified benefit to the surgery. That benefit should be made available to the applicant.
As to the recommendations for alternative treatment including injection therapy and psychological support, such a framework could be provided in conjunction with the surgery. It was not suggested by Dr Habib that psychological treatment could replace the surgery.

Mr Hanrahan submitted that even if a procedure is not guaranteed to be successful that does not render it not reasonably necessary.

The duration and severity of the applicant’s symptoms led Dr Rosenberg to the conclusion that surgery was reasonable. Dr Rosenberg considered the applicant’s symptoms were unlikely to settle without surgical intervention. Alternate treatments had not helped. It was unlikely that any further physiotherapy, hydrotherapy, massage or acupuncture would benefit the applicant. Dr Rosenberg said steroid injections had no role to play.

Respondent’s submissions

Ms Balendra referred to the Medical Assessment Certificate issued by Dr Assem. Dr Assem considered the applicant had clinical signs of radiculopathy without radiological evidence of lumbar disc pathology. This required further investigation to determine the cause of his neurological signs observed.
Dr Hyde diagnosed a major depressive disorder, moderate to severe, without psychotic features and post-traumatic stress disorder. Dr Hyde recommended a referral to a psychologist for structured cognitive-behaviour therapy with the focus on gradual exposure therapy as well as lifestyle modification such as scheduling activities and regular exercise.

Ms Balendra submitted that the applicant had experienced a significant psychological impact as a result of the traumatic fall. The applicant described his psychological symptoms in his statement. Ms Balendra submitted that the psychological symptoms could explain the difference between the radiculopathy symptoms described by the applicant and the radiological evidence.

Ms Balendra noted that Dr Maloney observed that the applicant was on a high dose of opiate medication and had been diagnosed with a major depressive disorder as well as post traumatic stress disorder. In the circumstances, Dr Maloney considered that the likelihood of surgical intervention being of any benefit to the applicant was small. Dr Maloney said he would embark upon ongoing physical activity including injection therapy and psychiatric treatment before once again visiting the possibility of surgical intervention to his back.

Ms Balendra submitted that the proposed surgery was significant surgery and it was necessary to consider the factors set out in Rose v Health Commission (NSW)[2], including the appropriateness of the surgery, the availability of alternative treatment, and the potential effectiveness of the procedure.
[2] (1986) 2 NSWCCR 32 (Rose).
The medical evidence suggested that surgical treatment may be reasonably necessary eventually but currently the applicant’s significant psychiatric symptoms were not being treated or were at least significantly undertreated. This was confirmed by Dr Habib who also recommend intensive psychological counselling for the applicant’s psychological state and to wean him off the large doses of narcotics and NSAIDs.
Dr Rosenberg’s recommendation for surgery was based on a single examination. What was missing was any consideration or examination of the applicant’s psychological state. At no point did Dr Rosenberg acknowledge the applicant’s psychological symptoms or address the possibility that getting psychological treatment was a reasonable alternative.

The medical opinions examining the psychological impact of the fall as well as the physical effects both recommended that the applicant should receive significant psychological assistance.
Dr Maloney said such assistance should be provided prior to surgery.
Ms Balendra submitted that the treatment suggested by Dr Rosenberg was not reasonably necessary at the present time because there were alternative treatments indicated. Providing the surgical treatment at this time could render it ineffective.

Applicant’s submissions in reply

Mr Hanrahan submitted that the mere fact that the surgery was potentially ineffective did not render it unreasonable. It could not be suggested that the cause of the applicant’s symptoms was psychological. There were clinical signs of radiculopathy.
The need to take the medications in respect of which Dr Habib considered the applicant should be weaned would be relieved by the surgery.

FINDINGS AND REASONS

Section 60 of the 1987 Act relevantly provides:
“(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).”
It is the applicant who bears the onus of establishing on the balance of probabilities that proposed surgery is reasonably necessary as a result of the injury on 18 December 2018. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[3] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1 injury to the applicant’s right ankle and her cervical spine. 940] HCA 20; (1940) 63 CLR 691 at 712.”
[3] [2008] NSWCA 246.
What constitutes reasonably necessary treatment was considered in the context of s 10 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[4] Burke CCJ stated:
“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.”
[4] (1986) 2 NSWCCR 32 (Rose).

Further, 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.
5.      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.”

His Honour considered the relevant factors relating to reasonably necessary treatment under s 60 of the 1987 Act in Bartolo v Western Sydney Area Health Service[5] and stated:

“The question is should the patient have this treatment or not. If it is better that he has it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[5] [1997] NSWCC 1.

In Diab v NRMA Ltd[6], Roche DP provided a summary of the relevant principles as follows:
[6] [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 (see [76] above), 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.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”[7]
[7] At [88] to [90].

Deputy President Roche commented further[8]:
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.”
[8] At [86].
It is not in dispute in these proceedings that the applicant sustained an injury to his lumbar spine in the significant fall which occurred on 18 December 2018.
The symptoms experienced by the applicant in relation to the lumbar spine have consistently been described in the medical evidence before me. Dr Oreb described continuing lower back pain with radiation into both legs, paraesthesia and burning sensation in the soles of the applicant’s feet. The applicant described difficulty walking for more than five minutes.
Dr Assem in his Medical Assessment Certificate also described constant severe pain across the lower back, burning sensation in the feet, sensory loss on the plantar surface of the feet and difficulty standing or walking for long periods.
A consistent history of lower back pain with radiation into both legs, paraesthesia on the soles of the feet experienced as burning and difficulty walking for more than five minutes was recorded also by both Dr Maloney and Dr Habib.
The medical evidence is also consistent in identifying bilateral pars interarticularis defects at the lumbosacral level. All of the doctors are in agreement that this was a long-standing condition, which pre-dated the injurious event. There is, however, no suggestion in any of the medical evidence before me that the applicant experienced symptoms at the lumbosacral spine prior to the injury.
There is some difference between the applicant’s doctors and Dr Maloney with regard to whether there was any compression of the transiting and exiting nerve roots shown on the radiological investigations. Dr Maloney said the transiting and exiting nerve roots appeared intact and non-compressed.
Dr Rosenberg, on the other hand, said he had reviewed all of the radiology, including MRIs, x-rays and CT scans. Dr Rosenberg said the pars defects at the lumbosacral level were accompanied by grade 1 spondylolisthesis. Although there was no significant compression, there was some exit foraminal narrowing at the lowest level. Dr Rosenberg said the significant injury suffered by falling off the ladder had rendered the segment unstable causing the previously asymptomatic pars defects to become significantly symptomatic. Without surgical intervention, Dr Rosenberg expressed the view that the applicant would remain symptomatic.
Dr Rosenberg’s interpretation of the radiological evidence is consistent with the history of injury and consistently reported onset of symptoms. Dr Rosenberg’s opinion appears to have been adopted by Dr Oreb in his report of 25 April 2021. Dr Habib also diagnosed an aggravation injury of the previously asymptomatic pars interarticularis defects. Dr Habib said the fall on 18 December 2018 made this developmental defect symptomatic for the first time. Without the fall, the condition could have remained asymptomatic. The need for surgery at this stage and place in time arose only due to the back injury rendering the condition severely symptomatic.
There is, therefore, an identifiable pathological cause for the applicant’s lumbosacral symptoms which has been recognised by the applicant’s general practitioner, treating surgeon and medicolegal expert.
Dr Maloney has not specifically addressed Dr Rosenberg’s opinion that although there was no significant compression, the segment was rendered unstable and there was some exit foraminal narrowing. Dr Maloney also appears to have been significantly influenced by the evidence of a concurrent psychological condition.
The evidence before me clearly establishes that the applicant has sustained a significant psychological condition as a result of the fall, diagnosed by Dr Hyde as a major depressive disorder and post-traumatic stress disorder. There is no indication before me as to any current treatment for this condition other than the prescription of medication. Dr Hyde has recommended a referral to a psychologist for cognitive behaviour therapy as well as lifestyle modification and regular exercise. There is no evidence of such treatment being provided to the applicant.
Dr Maloney appears to take the view that the applicant’s psychological symptoms could account for what he considered to be a discrepancy between the severity of the symptoms complained of by the applicant and the radiological evidence.
As indicated above, however, Dr Rosenberg, Dr Oreb and Dr Habib have all provided an opinion that there was a pathological explanation for the applicant’s symptoms. That explanation is not addressed by Dr Maloney’s report. Nor has Dr Maloney actively engaged with the evidence of an onset of severe symptoms, consistently reported, following the significant fall.
Both Dr Oreb and Dr Habib were aware of the applicant’s psychological condition and yet both have given an opinion consistent with there being a physiological or pathological explanation for the applicant’s symptoms, which would be appropriately treated by the surgery proposed by Dr Rosenberg.
Although Dr Habib has also recommended that the applicant undergo psychological treatment, I do not read his report as suggesting that intensive psychological counselling and weaning off narcotics and NSAIDs constitutes alternative treatment to the surgery. Dr Habib appears to recommend both the surgery as reasonably necessary and the psychological treatment.
I would accept the respondent’s submission that Dr Rosenberg does not appear to have been aware of the concurrent psychological condition or at least does not engage with that in his reports. I would also accept that the evidence before me suggests that the recommendation for surgery was made after a single consultation by Dr Rosenberg. Dr Rosenberg’s consultation, does, however appear to have been thorough. Dr Rosenberg appears to have been armed with all of the radiological evidence and a consistent and accurate history of the onset of symptoms, when expressing his opinion. That opinion has been adopted and supported by both Dr Oreb and Dr Habib.
Even Dr Maloney indicates in his report that a case could be made for surgical intervention to be undertaken.
Dr Maloney’s suggestion that alternative treatment should be undertaken prior to surgical intervention in the form of injection therapy and psychiatric treatment is addressed by the applicant’s evidence. Dr Rosenberg has in his most recent report indicated that steroid injections have no role to play. Dr Rosenberg said that alternative treatments had not helped the applicant and it was unlikely that any further physiotherapy, hydrotherapy, massage or acupuncture would be of benefit. Dr Rosenberg has indicated that the condition was unlikely to improve without surgical intervention.
Dr Oreb’s report of 3 June 2019 indicates that although the applicant was extremely pain focused he had been prescribed strong analgesia and had been referred to a pain clinic for ongoing pain management.
I am satisfied on all of the evidence, therefore, that the applicant has attempted appropriate conservative treatment modalities prior to Dr Rosenberg’s recommendation for surgery, for some two years after the injurious event. I am not satisfied, having regard to Dr Rosenberg’s most recent opinion that there is a place for injection therapy as an alternative treatment or that other conservative treatment options are appropriate at this point in time. There is an identified pathological cause for the symptoms which have been consistently reported by the applicant over a long period of time. All of the doctors involved in this case have given an opinion that the surgery is potentially appropriate and effective in alleviating the applicant’s symptoms.
Although I also accept that psychological treatment, as recommended by Dr Hyde also appears appropriate at the present point in time, I am not satisfied that such treatment constitutes an appropriate or potentially effective alternative treatment for the applicant’s lumbosacral condition.
Weighing the evidence before me, I am satisfied that the surgery proposed by Dr Rosenberg is, at the present time, reasonably necessary as a result of the injury on 18 December 2018.
There will be an order for the respondent to pay the costs of and incidental to the L5/S1 spinal fusion through anterior and posterior approaches in accordance with s 60 of the 1987 Act.

[2021] NSWPIC 401

08 October 2021