Angelkoski v Woolworths Group Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Angelkoski v Woolworths Group Ltd [2025] NSWPIC 193
APPLICANT:	Kris Angelkoski
RESPONDENT:	Woolworths Group Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	7 May 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for further section 66 lump sum compensation in respect of accepted lumbar injury in 2010; complying agreement for 7% whole person impairment (WPI) in 2012; whether lumbar surgeries performed in 2015 and 2022 were reasonably necessary “as a result of” the accepted work injury; where evidence of sudden onset of new symptoms and changes in pathology caused by later events recorded in the evidence; Kooragang Cement Pty Ltd v Bates, and Murphy v Allity Management Services Pty Ltd considered and applied; Held – applicant did not discharge his onus of demonstrating that the accepted work injury “materially contributed” to the need for the surgeries; matter remitted for further assessment of the degree of permanent impairment resulting from the accepted injury.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has not demonstrated that the L5/S1 discectomy and left S1 decompression surgery performed by Dr Saeed Kohan in 2015 was reasonably necessary as a result of the workplace injury. 2. The applicant has not demonstrated that the L5/S1 anterior lumbar discectomy and fusion surgery performed by Dr Saeed Kohan in 2022 was reasonably necessary as a result of the workplace injury. The Commission orders: 1. The matter is remitted to the President for referral to a Medical Assessor for further assessment as follows: Date of injury: 23 March 2010 (deemed) Body parts: Lumbar spine Method: Whole Person Impairment. 2. The materials to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments; the Reply and all attachments; documents attached to Applications to Lodge Additional Documents lodged by the applicant on 21 March 2025, the respondent on 21 March 2025 and the applicant on 27 March 2025; together with this Certificate of Determination and accompanying Statement of Reasons. 3. The matter to be listed for further preliminary conference upon receipt of the Medical Assessment Certificate. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Mr Kris Angelkoski (the applicant) was employed by Woolworths Group Limited (the respondent) as a butcher.
There is no dispute between the parties that the applicant sustained a compensable workplace injury to his lumbar spine in early 2010 in the course of his employment with the respondent.
The applicant received lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in accordance with a complying agreement dated
18 June 2012 in respect of 7% whole person impairment (WPI) of the lumbar spine. The agreement was based upon reports prepared by Dr James Bodel on 15 July 2011 and
27 March 2012.
The applicant’s employment with the respondent was terminated on 20 December 2012.
On 19 September 2023, the applicant made a claim for further lump sum compensation based upon an assessment of 26% WPI of the lumbar spine and skin made by Dr Andrew Porteous on 24 August 2023.
The applicant also sought compensation pursuant to s 60 of the 1987 Act in respect of a number of surgeries including, a lumbar spine discectomy performed by
Dr Saeed Kohan and a lumbar spine fusion performed on 22 May 2022 by Dr Kohan. The applicant also sought weekly compensation for various periods.
On 22 January 2024, the respondent’s solicitors forwarded to the applicant a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The dispute notice indicated that the degree of permanent impairment resulting from the injury was disputed other than an entitlement to an additional 2% WPI at the lumbar spine. Relevantly, the applicant was also notified that the insurer had decided that:
(a)    there was no incapacity as a result of any workplace injury sustained with the respondent;
(b)    any incurred, ongoing or further medical or related treatment (including the lumbar surgeries) did not arise as a result of the workplace injury; and
(c)    the injury was classified as a disease of gradual process and the applicant’s subsequent employment was employment to the nature of which an aggravation of the disease process was due for the purposes of s 16 of the 1987 Act.
The insurer relied on a report from orthopaedic surgeon, Dr Frank Machart, dated
12 December 2023. An extract from Dr Machart’s report was quoted in which he referred to the applicant’s subsequent “unrestricted” employment in physically demanding jobs, including work in a bar and for Coates Hire. Dr Machart stated,
“…the additional impairment relates to employment beyond that time. If he was not exposed to unrestricted work, then he would not be having 2 further operations.”
The current proceedings were commenced in the Personal Injury Commission (Commission) by lodgement of an Application to Resolve a Dispute on 9 December 2024. The applicant seeks further lump sum compensation in accordance with Dr Porteous’ assessment; compensation under s 60 of the 1987 Act including, the costs of and incidental to the lumbar surgeries performed by Dr Kohan; and weekly compensation.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared before the Commission for conciliation conference and arbitration hearing on 27 March 2025. The proceedings were conducted on the Microsoft Teams platform. The applicant was represented by Mr James McEnaney of counsel, instructed by Ms Rachel Abouchrouche. The respondent was represented by Mr Daniel Stiles of counsel, instructed by Ms Stephanie Dunn.
During the conciliation conference, the parties agreed that the Commission ought to determine the liability disputes relating to the lumbar surgeries performed by Dr Kohan and the dispute raised by reference to s 16 of the 1987 Act first. Following those determinations, it was agreed that the Commission ought to refer the matter to a Medical Assessor to assess the degree of further permanent impairment resulting from the 2010 injury. The outstanding disputes with respect to s 60 of the 1987 Act and weekly compensation would be deferred to a further preliminary conference to be convened upon receipt of the Medical Assessment Certificate.
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.

ISSUES FOR DETERMINATION

The parties agree that the following issues require determination:
(a) whether the lumbar surgeries performed by Dr Kohan were reasonably necessary as a result of the injury on 23 March 2010; and
(b) whether the respondent was the last employer to employ the applicant in employment which was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease at his lumbar spine pursuant to s 16 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to the Application to Lodge Additional Documents lodged by the applicant on 21 March 2025;
(d)    documents attached to the Application to Lodge Additional Documents lodged by the applicant on 21 March 2025; and
(e)    document attached to the Application to Lodge Additional Documents lodged by the applicant on 27 March 2025.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements dated 20 May 2010, 7 June 2010, 16 June 2010, 5 August 2010, 26 October 2010, 20 December 2010, 1 September 2011, 25 October 2011, 18 June 2012 and 24 September 2024.
The applicant was employed as a butcher at the respondent’s Kiama store for approximately nine months on a full-time basis.
The applicant’s duties included cutting meat, packing and wrapping the meat using a manual wrapping machine which was very low, sitting approximately 70cm from the ground.
On 23 March 2010, the applicant spent a whole day manually hand wrapping meat trays. Because the manual wrapper was so low, the applicant was forced to work in a hunched over position. As a result, the applicant felt pain in the lower left side of his back. The applicant reported his injury to his manager.
The applicant took a week off before returning to work. The applicant stopped work on
7 April 2010 after about two hours because he was in so much pain. The applicant made a workers compensation claim approximately one week later.
The applicant’s general practitioner referred him to see a neurosurgeon, Dr Ravi Kumar Cherukuri. The applicant underwent an MRI of his lower thoracic and lumbar spine.
Dr Cherukuri referred the applicant to see a pain specialist, Dr David Manohar, for cortisone injection. The applicant was also treated with physiotherapy, Panadeine Forte and Nurofen Plus and used a jacuzzi to ease his symptoms. The applicant’s symptoms included pain in his lower back and numbness down into the left leg.
The applicant had previously worked as a butcher in his own and other businesses in addition to some contract work as a pipe coater and security guard.
The applicant said he had not had any previous injuries to his back other than a muscle spasm approximately 10 years earlier after making a lot of chicken kievs. This required a week off work and was treated with Valium and heat packs.
In January 2011 the applicant was at home and had gone to sit down when he experienced an increase in pain at his lower back, running down his leg. The applicant went to bed but later could not move. The applicant called an ambulance and was taken to Shellharbour Hospital where he was given morphine and sent home on crutches. The applicant returned to see Dr Manohar who referred him for an MRI and nerve block.
In October 2011, Dr Manohar recommended another nerve block. Dr Manohar did not at that stage recommend surgery.
In his statement of 24 September 2024, the applicant stated that after the injury in 2010, his lower back never felt the same.
In 2015, the applicant was referred to see neurosurgeon, Dr Saeed Kohan regarding his lower back symptoms and left leg radiculopathy. The applicant underwent an L5/S1 discectomy performed by Dr Kohan in March 2015.
After approximately seven months of rehabilitation, the applicant returned to work doing light plastic pipe manufacturing work. The pipe making process was automated and the applicant was tasked with laying the pipes onto crates after they had been moulded. The applicant also operated a forklift here and there and was on his feet during the day. The applicant said he did not have to do any bending, twisting or lifting movements and the role was not physically demanding. Despite this, the applicant continued to suffer pain and was reliant on pain killers. He left the role after about six months.
The applicant then found work as a butcher in Warrawong. The butcher was set up with rails installed on the ceilings so carcasses could be brought in on rollers and attached to the rails. The applicant did not have to do any heavy lifting in this role. The benches were at a height in line with industry standards. The applicant was cutting only about a quarter of the amount of meat he was cutting at Woolworths. Although the conditions were significantly better and he was only working short shifts, the applicant experienced pain from the start. The applicant struggled to stand for prolonged periods and found the cold environment increased his pain. The applicant left after a few months.
The applicant said in the following years his pain symptoms increased in intensity and he relied more on heavy medications including Palexia and Tramadol. The applicant tried to return to employment with various employers but on each occasion found his back symptoms too painful to tolerate.
The applicant commenced employment as a truck driver in 2018. Although he was not required to do any physical work and the seat was fairly supportive, the applicant found that driving flared his pain symptoms significantly and he would need to pull over and stretch every one to two hours. After a few months, the applicant had to leave due to his debilitating pain.
By 2019, the applicant was relying on fentanyl patches. The applicant found casual work as a security guard at a club. This work involved sitting down, walking around and supervising a team of security staff. The applicant left that job as he felt it was too risky for him to continue working as he would not be able to step in if there was a fight.
In 2020, the applicant commenced in a role as a driver and portaloo cleaner for Coates Hire. The applicant used a crane and hydraulic system to move anything heavy. The applicant had to carry a water hose and occasionally move empty plastic pipes. The applicant left this role after a year-and-a-half as he did not want to perform that type of work and because his symptoms were continuing to persist.
The applicant said,
“I did not have any acute flare ups or incidents requiring me to seek medical attention whilst working at any of my subsequent employers. My pain symptoms have persisted since the initial injury with Woolworths and those symptoms have worsened over time despite my many surgeries and despite always trying to take good care of my body and not cause any further damage.”
The applicant said he continued to experience low back pain extending down his left leg after the operation in 2015. Eventually, it became unbearable and he returned to see his general practitioner who referred him back to Dr Kohan. Dr Kohan ultimately recommended an L5/S1 fusion, which was performed on 2 May 2022.
The applicant commented,
“I understand that Dr Kohan indicated at that time that my back pain was potentially aggravated by use of a heavy pipe whilst I was at work. This is incorrect and I believe Dr Kohan misunderstood the nature of my work. There was no heavy lifting or heavy lifting involving pipes. The pipes that were utilised during my employment with Coates were PVC pipes which were plastic and not heavy. I believe that my lumbar spine has been vulnerable since the initial work accident with Woolworths and my pain has continued to persist over time eventually leading to me to return to Dr Kohan for further opinion.”
The applicant expressed the belief that his employment with Woolworths on 23 March 2010 was the main or substantial reason for his ongoing symptoms.

Treating evidence

Clinical records from Warilla Family Medical Practice are in evidence. These records show that on 23 July 2009 the applicant complained of lower back pain since the previous day. The applicant was prescribed Mobic and advised to use heat packs.
On 30 November 2009, the applicant complained that he had hurt his left lower back while jumping a fence the previous night. The applicant was prescribed Panadeine Forte.
On 8 April 2010, Dr Shabina Nisha recorded that the applicant had complained of backache radiating to the left leg which was aggravated while working. Dr Nisha reported that the applicant had this pain before and had been told it was nerve pinching. The applicant complained that it was aggravated while working, bending over a machine all day.
The applicant was seen again by Dr Nisha over the next couple of days with ongoing, severe pain and was referred to neurosurgeon, Dr Ravi Kumar Cherukuri.
A report prepared by Dr Cherukuri on 23 April 2010 noted a history of back pain radiating to the left leg for the past two weeks in the context of the applicant’s work for the respondent. Dr Cherukuri noted a prior history of back pain and occasional back spasm which responded to conservative therapy. The applicant was referred for an MRI scan.
The report of an MRI performed on 30 April 2010 noted a posterocentral broad-based disc herniation at L5/S1 causing impingement on the left side traversing the S1 nerve root.
On 7 May 2010, Dr Cherukuri noted the MRI findings and recommended conservative therapy. It was noted that the applicant would benefit from physiotherapy and hydrotherapy and injections on the left at L5/S1 and L4/5. Dr Cherukuri noted,
“Given his clinical and radiological symptoms anticipating might start improving further with these measures and might be able to start a graded and gradual return to work. However he might have further episodes of sciatica in future. I have not made a formal arrangement to review Mr Angelkoski however, I am happy to see him in future if he has persistent or worsening symptoms.”
Dr Nisha prepared a report on 1 June 2010 in which it was noted that the applicant had come in with severe back pain on 27 May 2010 and was sent to Shellharbour Hospital for pain management.
Pain specialist, Dr David Manohar prepared a report for Dr Cherukuri on 14 July 2010. The applicant reported back pain in the context of his work for the respondent. The applicant had undergone physiotherapy without benefit and still had back pain extending down the left leg. Dr Manohar noted Dr Cherukuri’s recommendation for a selective nerve root sleeve block.
On 31 July 2010, left L5 and S1 nerve root blocks were performed by Dr Manohar.
On 28 August 2010, Dr Manohar reported that the applicant still had back pain and paraesthesia extending down the left leg. The applicant reported feeling fine as long as he did not do anything. As soon as he undertook any activity there was pain. The applicant had commenced physiotherapy and was advised to take Pregabalin.
Dr Manohar noted continuing symptoms in a report dated 4 September 2010. The applicant was prescribed an increased dose of Lyrica. On 11 September 2010, the applicant reported to Dr Manohar that the Pregabalin had been effective and his symptoms had decreased. The applicant was maintained on Lyrica twice a day for two weeks.
On 23 October 2010, Dr Manohar reported that the applicant was undergoing hydrotherapy and physiotherapy and taking Lyrica and with this was not experiencing any pain.
On 6 November 2010, the applicant told Dr Manohar that he still had backache which had been made worse after he was left lying on physiotherapy table with a heat pack on which had turned cold. The applicant was unable to move afterwards.
On 8 January 2011, Dr Manohar reported:
“He has had an exacerbation of pain in the lumbar region and sacroiliac region.
On Tuesday, he went to bed, lay down and was unable to get back up again. He had intense pain in the back and he had to call an. ambulance. He was given an infiltration of Morphine and was taken to Shellharbour Public Hospital. He was at hospital for 10 hours and sent home with analgesics. He is walking with two crutches today and he has severe back pain extending down the left leg. He has difficulty standing, walking and getting out of bed.”
The applicant underwent a further MRI of the lumbosacral spine on 10 February 2011. This was reported to show a small to moderate central disc protrusion at L5/S1 with minimal bilateral foraminal narrowing at that level. No significant neural impingement was demonstrated in the supine position.
After reviewing the MRI, Dr Manohar sought approval for an infiltration at the L4/L5 and L5/S1 levels to the nerves and facets on 12 February 2011.
The applicant was seen by exercise physiologist, Mr John Booth on 11 March 2011.
Mr Booth noted a history of back injury in 2010 with a flareup in January 2011. The applicant continued with low back pain and posterior left lower extremity symptoms. The applicant was relatively inactive and limited by pain. The applicant was coping poorly with daily function.

The applicant was seen by another exercise physiologist, Ms Katie Commins, on 10 May 2011, at which time it was noted that the applicant had been performing a home exercise program. The applicant reported reduced lower back pain. The applicant was coping better with daily function and was more confident with physical activity.
On 17 June 2011, Ms Commins noted that the applicant had been proactive towards his treatment, his symptoms had reduced and his functional tolerances had increased. The applicant had been upgraded to work five hours per day, three days per week and believed he was capable of gradually upgrading to pre-injury hours.
On 16 July 2011, Dr Manohar reported that he had performed a neural blockade at the medial branches supplying the left L4/L5 and L5/S1 facet and an L5/S1 selective nerve root sleeve blockade on 18 March 2011. The applicant was feeling well and able to stand and walk well.
On 17 August 2011, Dr Nisha recorded that the applicant had reported pain radiating down his right leg and increasing pain since the previous night with numbness in his feet. The numbness had disappeared by the time of a consultation on 19 August 2011.
On 23 August 2011, the applicant reported still having a lot of pain and mild restricted movement at the lumbar spine. On 7 September 2011, the applicant reported he was doing well but still had pain radiating down the leg. This was said to be helped by Tramal. On
14 September 2011, the applicant had a discussion with Dr Nisha about ongoing pain when sitting and pins and needles down the left leg. The applicant was referred back to
Dr Manohar.
Dr Manohar applied to perform a repeat neural block procedure 24 September 2011.
Lower backache was noted by Dr Nisha on 24 October 2011. The applicant was given a repeat prescription for Tramadol. Severe pain was noted on 1 November 2011.
The applicant was seen by another neurosurgeon, Dr Darweesh Al-Khawaja, on
12 November 2011. The applicant reported increasing lower back pain and left leg pain. The applicant had tried physiotherapy, hydrotherapy and swimming. The nerve block with
Dr Manohar had help for a few months. The applicant was using strong painkillers.
Dr Al-Khawaja recommended that the applicant repeat the nerve block again, which he could do twice per year. If he was not willing to continue with this option, a surgical option of shaving the disc out at L5/S1 could be considered.
Dr Nisha noted that the applicant was doing well but wanted another prescription for Tramadol on 21 November 2011.
On 28 December 2011, the applicant reported feeling much better and only taking Tramadol once daily. The applicant was not keen to have another nerve block would continue with his medication as instructed.
The applicant was given another prescription for Tramadol after complaining of back pain on 7 January 2012.
On 19 January 2012, Ms Commins reported that the applicant had been self managing his exercise program at a local gym. The applicant was working 35 hours per week with the goal of resuming pre-injury hours within the month. The applicant continued with pain medication on a regular basis.
The applicant continued to report pain after work to Dr Nisha in January and February 2012 and was noted to be prescribed Tramadol. On 1 March 2012, the applicant’s back was said to be the same. The applicant was given a prescription for Tramadol again on 3 April 2012.
On
17 November 2014, the applicant returned to his general practitioner reporting a flareup of back pain. The clinical notes recorded, “works at a bar, was lifting things over the weekend”. The applicant was given a prescription for Panadeine Forte.
On 22 November 2014, the applicant returned seeking more pain relief. The applicant was seen in relation to the flareup of back pain again on 27 November 2014 and 30 December 2014. The applicant continued on Panadeine Forte.
The report of an MRI performed on 30 January 2015 showed a very large disc extrusion extending centrally to the left side. This was said to compress the descending nerve roots, probably bilaterally, at S1.
Neurosurgeon, Dr Saeed Kohan, saw the applicant on 17 February 2015. The applicant reported a 3-and-a-half month history of sudden onset, severe left buttock and posterior thigh and calf pain with numbness over the sole of his left foot. This occurred after bending while drying himself after a shower. Dr Kohan noted the work injury and said:
“He has history of back pain after injury about four years ago but no history of radiculopathy. He mentioned that he has worked in various industries including being a butcher and recently has gained employment as a security guard where he has to sit and stand and walk but he only manages this by taking four to six Panadeine Fortes during the shift.”
Dr Kohan noted that the recent MRI showed a very large L5/S1 disc protrusion in the left paracentral region causing significant canal narrowing (about 50%). Dr Kohan gave the opinion:
“Given the significant morbidity that this has caused Kris and the duration of over three months without any significant resolution and the appearance of a large protrusion which has persisted during this time, my recommendation was to address this surgically with removal of the herniated fragment.”
On 4 May 2015, Dr Kohan reported that the applicant had undergone surgery six weeks earlier for L5/S1 discectomy and left S1 decompression. At the surgery there were multiple disc fragments causing significant compression at S1 as well as an osteophyte formation at the inferior endplate of L5 which was cleared. The applicant reported that he had been essentially pain-free with only the lateral three toes being numb which was not particularly bothersome. The applicant was not taking any analgesia and was trying to get back into the workforce as a security guard.
On 6 June 2016, the applicant was seen by general practitioner, Dr Rozita Khosravifar.
Dr Khosravifar recorded that the applicant had a history of lower back pain with surgery the previous year. The applicant still had back pain radiating to both legs as he had twisted his back three months earlier.
A CT scan performed on 6 June 2016 was reported to show mild to moderate degenerative spondylosis of the lower lumbar spine. There was a large central posterior discovertebral complex located at L5/S1 which appeared to mildly compress the proximal traversing left S1 nerve root.
An MRI performed on 8 September 2016 noted evidence of a left laminectomy at L5/S1.
A posterocentral protrusion of moderate size with mild mass effect on the descending
S1 nerve root was noted.
The applicant was seen by Dr Kohan again on 13 September 2016. Dr Kohan said that the applicant had a complete resolution of symptoms with the lumbar discectomy in 2015 and had continued to progress quite well until about three months earlier when he started having lower back pain with some mild recurrent left S1 symptoms. Dr Kohan noted:
“He has continued to work as a security guard where he needs to be on his feet walking for about nine and a half hours four or five days a week. He has also continued with heavy exercise in the form of kayaking as he was advised for weight loss during this period until about two weeks ago. Although he has lost significant weight (about 40 kilos since his operation) I think the kayaking action has not been so beneficial with regards to his lower back problem.”
Dr Kohan reviewed the recent MRI findings and gave the opinion:
“The likely possibilities are pain arising in the facet joint given the clinical findings of increasing pain with lumbar extension. However, radiologically it appears that he has had progressive disc degeneration with modic changes suggesting chronic discopathy.
I have suggested firstly he undergoes a lumbar SPECT scan to investigate this further and subsequently consider bilateral LS/S1 facet blocks. It is also important to realise the impact of his exercises and the type of work that he does which certainly needs consideration of modification.”
The applicant was seen by general practitioner, Dr Ahmad Abdul Magid on 28 September 2020 reporting chronic severe back pain. The applicant had been using Palexia and Lyrica which caused confusion and was now using Fentanyl patches. Ongoing back symptoms continued to be recorded in the clinical notes throughout 2021.
On 21 January 2021, an MRI was reported to show posterior central and inferior disc extrusion at L5/S1 impinging on both descending S1 nerve roots with the left worse than the right. There was also some impingement of both exiting L5 nerve roots, left worse than the right.
The applicant was seen again by Dr Kohan on 7 December 2021, when he took a history as follows:
“He reports that following that operation the left leg pain had settled but he had continued to have lower back pain and groin pain which was being controlled with Palexia on a regular basis. He noted over the past twelve months his back pain and groin pain had increased, potentially aggravated by use of a heavy pipe while he was working.”
The applicant was noted to have switched to Fentanyl patches and to have given up his work as a truck driver and security guard. Functionally, the applicant was quite restricted.
Dr Kohan reviewed the recent MRI imaging and expressed the view that the applicant had developed a further disc herniation. Dr Kohan recommended further scans but gave a provisional recommendation for an L5/S1 anterior lumbar discectomy and fusion.
Dr Kohan reviewed the applicant on 10 February 2022 following a bone scan. The applicant continued with severe back pain and pain radiating to the posterior thigh and calf in the S1 dermatome or distribution. Dr Kohan recommended that the applicant undergo anterior lumbar discectomy and fusion at L5/S1. This procedure was performed at St George Private Hospital on 2 May 2022.

Dr Bodel

The applicant’s solicitors arranged for him to attend an independent medical examination with orthopaedic surgeon, Dr James Bodel on 15 July 2011. Dr Bodel prepared a report on the same date, in which he took a history of the applicant experiencing a sudden, severe left sided lower back pain and pain radiating into the left leg while wrapping a cut of meat on
23 March 2010.
Dr Bodel noted that the applicant had undergone an MRI scan, the report of which showed definite evidence of disc pathology at L4/5 and L5/S1. The applicant was treated conservatively and had block injections which did not help. The applicant had been making progress until January 2011 when there was a further exacerbation of his symptoms at home.
Dr Bodel said that surgery had not been discussed as a possible treatment option. The applicant remained under the care of Dr Manohar, was taking Tramadol and undertaking an exercise based program.
Dr Bodel diagnosed an ongoing mechanical back ache with indications of sciatica in the left leg. With regard to any future medical treatment the applicant was likely to require, Dr Bodel commented,
“This gentleman has symptoms and signs suggestive of mild nerve root irritability in the left leg and he may need to consider a surgical decompression but that would really depend on the outcome of the further investigations which I have not yet seen. At the moment the continuing conservative care is appropriate.”
Dr Bodel prepared a supplementary report eight months later on 27 March 2012. In the intervening period, the applicant had undergone nerve block injections which had helped the back pain and leg pain temporarily. The applicant continued with medication, exercise and physiotherapy. The applicant was taking 200mg of Tramal per day and had been issued with a final certificate to return to work on permanently modified duties. The applicant was coping with his work activities.
Dr Bodel noted that the applicant had sought a second opinion from Dr Al Khawaja who had discussed surgery as a treatment option. Dr Bodel recommended that the applicant continue to reduce weight and improve his physical fitness level in order to optimise the long-term outcome but said there was no indication for surgery at that stage. Dr Bodel did not anticipate that it would be required in the future.
The applicant did require analgesic medication and possibly also intermittent physiotherapy on an as needs basis for the management of any inevitable flareups of pain.
Dr Bodel diagnosed injury as involving minor disc pathology at the lumbosacral junction. The applicant was found to have a DRE Lumbar Category II level of impairment with no clinical sign of radiculopathy. The applicant’s activities of daily living had been moderately compromised giving a 2% loading and a total 7% WPI at the lumbar spine.

Dr Porteous

The applicant attended an independent medical examination with occupational physician,
Dr Andrew Porteous, at the request of his solicitor on 9 August 2023.
In a report dated 24 August 2023, Dr Porteous took a history of the injury. Dr Porteous noted that the applicant had undergone an L5/S1 discectomy in March 2015. This only helped a bit and the applicant was off work for about seven months before returning to work.
Dr Porteous noted that the applicant had continued to work for the respondent following the work injury until December 2012 when he felt bullied and pressured to do extra work. The applicant had subsequently made a claim for compensation in relation to a psychiatric injury.
Dr Porteous noted that the applicant had subsequently obtained work at a pipe coating company producing latex pipes. Later the applicant gained work Coates Hire as a sewerage portaloo pump truck operator. The applicant had increasing pain in his back and both hips and was having trouble getting in and out of the trucks so stopped that work in about 2021.
With his ongoing back and left leg pain, the applicant saw Dr Kohan again who performed an anterior approach L5/S1 fusion on 2 May 2022.
Dr Porteous gave the opinion,
“With regard to the injuries to the lumbar spine, it is very clear that he required a discectomy in May 2015 and a subsequent fusion in 2022 as a result of work injury to his lumbar spine and in my opinion, his employment at Woolworths is causally related and the primary contributing factor to the need for those operations.”
Dr Porteous made an assessment of 26% WPI at the lumbar spine and skin (TEMSKI).
Dr Porteous prepared a supplementary report on 11 October 2023 in which he commented further on the relationship between the work injury and the surgeries performed by Dr Kohan. Dr Porteous gave the opinion,
“The low back pain and left leg pain started with work and the subsequent Discectomy in May 2015 based on the findings at the time noting there was persisting back pain and persisting left leg symptoms, was appropriate, reasonable, did lead to some improvement and is accepted treatment for his presentation. The need for surgery clearly substantially arose as a result of the subject work injury. Mr Angelkoski will have access to copies of the accounts from the operation and associated care before and after it.
The persisting low back pain and left leg pain that had started with work and the subsequent Fusion in May 2022 based on the findings at the time noting there was persisting back pain and persisting left leg symptoms despite having had a prior Discectomy, was appropriate, reasonable, did lead to some improvement and is accepted treatment for his presentation. The need for this surgery clearly also substantially arose as a result of the subject work injury and the ongoing findings related to that.”
In a further supplementary report dated 14 April 2024, Dr Porteous was asked to comment on a medicolegal report prepared by Dr Frank Machart for the insurer. Dr Porteous commented,
“After the back pain started at work at Woolworths, it never ever resolved. It was and remains clear that the injuries to this level occurred at work and they arose over the course of employment and his employment at Woolworths was more likely than not on the balance of probabilities given the evidence available the substantial and main contributing factor to the aggravation or exacerbation.
The history he gave me is that he struggled with significant pain and restriction right from the time of injury, including in the subsequent work, and had to take very strong pain relief to go to work. At no point did he give a history of one of the subsequent jobs resulting in a significant increase in his pain, restriction and reduced capacity.
With all due respect to Dr Machart’s opinion, I believe it is conjecture and does not account for deterioration of his injury that clearly occurred, that as we all know, happens frequently, and would more likely than not have occurred regardless of the subsequent work Mr Angelkoski tried to do after onset, in this case. The history is most supportive of that being the case.
…
There was no or less than a few percentages contribution from his subsequent jobs and it was and remains my opinion that his Woolworths employment was more likely than not, on the balance of probabilities, the main and primary contributing factors to the injury claimed to his ongoing symptoms and the need for treatment including the surgery.”
In another supplementary report dated 4 December 2024, Dr Porteous commented further on this issue stating,
“He lost his job in 2012, related to this injury, and then eventually he worked in a number of jobs, with him reporting to me with these having to use significant and at times strong pain medication.
From 2010 he had intermittent flares of his chronic lumbar back pain, sometimes at work. My understanding however is that these always settled back to the prior level and it is my understanding that these were only temporary aggravations and he believes the main and substantial cause of his ongoing back pain and injury was the original injury in 2010 . In my opinion the history I recorded supports that and that remains my opinion. I believe when weighing up all of the evidence that is more likely than not the case.”

Dr Machart

The respondent relies on medicolegal reports prepared by orthopaedic surgeon, Dr Frank Machart on 12 December 2023 and 12 February 2024.
In his first report, Dr Machart noted the injury in 2010, which was treated conservatively. The applicant was overweight, weighing 146kg. Bariatric surgery was conducted in 2013, as a result of which, the applicant lost a lot of weight. The applicant’s back pain had eased but not resolved completely. There continued to be “right” leg pain. After the applicant’s employment with the respondent was terminated, he did different jobs including restaurant work, security work and work for Coates Hire. The applicant worked without restrictions and did not tell his employer that there was anything wrong with his back. The work for Coates Hire was said to include cleaning and pumping sewerage, manipulating, lifting and dragging hoses.
Dr Machart performed an examination and considered the radiological and other medical evidence provided to him. Dr Machart noted that the medical evidence included records of symptoms prior to the work injury.
Dr Machart gave the opinion:
“There was pre-existing lumbar pain not related to work at Woolworths. When he left Woolworths, he received settlement at 7% WPI. To me, this indicates that there was DRE II category, and impact on ADLs at 2%, which indicates difficulties conducting housework and hobbies. With this in mind, it is difficult to see how he could have then gone through physically demanding jobs, such as working in a bar, and for Coates Hire, unrestricted. Doing those jobs, bearing in mind the 7% WPI awarded for difficulties doing housework, it is not surprising that work, which was strenuous and manual, caused additional injuries to his spine, to the extent of requiring 2 operations. I would argue that if impairment of 7% for difficulties doing housework and restrictions on his work, as was indicated by Dr Bodel then, were to continue, then there would be no need for operations and the failed back surgery syndrome. Either he worked injudiciously, and this caused further injuries, or his symptoms had resolved sufficiently well to suffer additional injuries. In line of the several injuries, the incident at Woolworths remains a contributing factor. I fail to see how this was any greater than the 7% already awarded. The additional impairment relates to employment beyond that time. If he was not exposed to unrestricted work, then he would not be having 2 further operations.”

Dr Machart expressed the view that the injury with the respondent contributed to a small extent, through the disc injury as a pre-existing condition that was aggravated by subsequent events, to both the surgery and 2015 and that performed in 2022. The surgeries were contributed to substantially by additional injuries through subsequent employment and activities.
In his supplementary report, Dr Machart commented on the contribution of the 2010 injury to the applicant’s incapacity for work.

Respondent’s submissions

The respondent referred the Commission to the treating evidence set out above and the applicant’s statement evidence.
The respondent observed that following the workplace injury, the applicant was seen by neurosurgeon, Dr Cherukuri. Dr Cherukuri considered that the applicant’s condition may improve if he lost weight. There was no proposal for surgical intervention at that time.
The respondent noted the exacerbation of the applicant’s condition in January 2011 recorded by Dr Manohar on 8 January 2011 and described in the applicant’s statement evidence on
1 September 2011.
The respondent noted that at the time of the applicant’s statement dated 25 October 2011, the applicant was continuing to see Dr Manohar and he had not recommended surgery.
In 2012, the applicant made a claim for lump sum compensation relying on the assessment of Dr Bodel, dated 27 March 2012. Dr Bodel made a diagnosis of minor disc pathology at the lumbosacral junction. Dr Bodel assessed the permanent impairment at the applicant’s lumbar spine as DRE Lumbar Category II. He found asymmetry of movement and guarding but no clinical sign of radiculopathy. The applicant’s activities of daily living had been moderately compromised, giving a 2% loading.
The respondent observed that following the termination of the applicant’s employment, there was a smattering of clinical notes and reports dealing with the applicant’s post injury employment.
On 17 November 2014, two years after the applicant ceased work there was a clinical record of a flareup of back pain. The applicant was noted at the time to be working at a bar and to have been lifting things over the weekend. The applicant was seen again in relation to a flareup on 30 December 2014. The MRI which was performed on 30 January 2015 noted a very large disc protrusion.
The respondent submitted that the applicant had gone from having minor disc pathology, at the time of Dr Bodel’s report, to a very large disc extrusion after a flareup working in a bar and lifting things in 2014. It was this flareup that prompted the referral to Dr Kohan.
Dr Kohan recorded a 3-and-a-half month history of pain when he first saw the applicant.
Dr Kohan diagnosed left S1 radiculopathy secondary to the large L5/S1 disc protrusion.
Dr Kohan recommended that the pathology at that time be addressed surgically.
The respondent submitted that this constituted clear evidence that something happened when the applicant was working in a bar. The applicant had surgery after that incident. The medical evidence suggested the surgery produced good result and the applicant was for a time pain free and required no analgesia.
Twelve months later, the applicant reported a further twisting injury three months earlier. In a report dated 13 September 2016, it was noted that the applicant had progressed well until three months earlier. The applicant was noted to be on his feet walking in his job as a security guard for 9-and-a-half hours, four or five days per week. The applicant also continued with heavy exercise in the form of kayaking for weight loss.
On 7 December 2021, Dr Kohan recorded that the applicant’s pain had increased, potentially as a result of use of a heavy pipe while the applicant was working. It was following this aggravation that the second surgery was recommended.
The respondent noted the applicant’s reliance on the report of Dr Porteous. Although
Dr Porteous took a history of the original injury and some increasing back pain and trouble getting out of the truck he did not have a full history that included the reports of lifting things while working at a bar, kayaking or lifting heavy pipes. Dr Porteous had no real history as to the nature of the applicant’s subsequent employment in coming to his conclusion that the work injury was the cause of the need for surgery. Without that history, the respondent submitted that weight would not be given to the conclusions of Dr Porteous on the question of causation.
The respondent submitted that Dr Machart had a better post injury work history. Dr Machart noted that although the applicant had denied any prior lumbar symptoms, pre-existing symptoms were recorded in the clinical notes. Dr Machart formed the view that the additional impairment at the time of his assessment was the consequence of the applicant’s employment subsequent to the work injury.
Dr Machart considered that employment with the respondent made a small contribution to the need for the surgeries, however, that condition had been aggravated by subsequent events which had brought on the need for surgery. Dr Machart’s opinion was said to be consistent with the clinical notes and records.
The applicant did not address the subsequent flareups caused by lifting something while working at a bar in his statement evidence. No claims were ever made on the respondent’s insurer requesting payment for the costs of the surgical procedures at the time they were proposed.
Although the applicant said that Dr Kohan was incorrect about him lifting a heavy pipe, the applicant had not provided any clear evidence about his subsequent roles. The statement evidence did not assist the Commission in determining whether subsequent employment had aggravated the pathology at the applicant’s lumbar spine.
The respondent submitted that there was clear evidence that after the applicant ceased employment with the respondent there were other events which had aggravated or exacerbated the pathology at the applicant’s lumbar spine.
The original injury was minor and had been assessed as causing minor impairment. Other events occurred which had caused further lumbar pathology and new symptoms. The Commission would not be satisfied that there was anything other than a very tenuous link between the work injury and the need for surgery, particularly given the lack of a proper history in Dr Porteous’ reports.
The respondent submitted that the Commission would not find that the surgeries were reasonably necessary as a result of the 2010 injury. There was clearly pathology at the applicant’s lumbar spine that predated the 2010 injury.
There was clear evidence that employment with the respondent was not the last relevant employment for the purposes of
s 16(1)(b) of the 1987 Act. The respondent was not liable for the surgeries.

Applicant’s submissions

The applicant submitted that to the extent that the respondent had submitted that there was an intervening act or event, that matter ought to have been raised in a dispute notice prior to the commencement of proceedings. In the absence of a notified dispute, the respondent’s submissions should not be dealt with in the current proceedings. As a matter of procedural fairness, the respondent ought to have articulated the dispute it sought to rely on. No application for leave under s 289A(4) of the 1998 Act had been made.
The relevant question was whether the injury had materially contributed to the need for surgery. The applicant submitted that Dr Machart conceded that there was a contribution from the injury to the need for surgery. Dr Machart had not explained why that contribution was not a ‘material contribution’.
Dr Machart had not given an opinion that there was a relevant subsequent employer in the language used by ss 15 or 16 of the 1987 Act.
No submissions had been made by the respondent that the applicant’s credibility or reliability was in issue. The Commission would not find that the applicant was anything but honest.
Dr Bodel had identified central bulging at L5/S1 at the time of his report. The applicant’s statement evidence was that he had continued to experience lower back symptoms since
23 March 2010. The applicant’s lower back never felt the same and he felt very vulnerable in the region. The applicant said he had not sustained any new injuries in the course of his subsequent employment.
The applicant referred to Dr Kohan’s report of 17 February 2015 and said that a period of three-and-a-half months did not date back to November when there was reference to an incident while lifting things and working in a bar. The applicant told the surgeon that his back popped when bending over.
The applicant referred to the decision in State Government Insurance Commission v Oakley[1] and submitted that the current case fell within the first category described in that case. The further damage that occurred arose because of the damage to the disc occasioned by the work injury which had never really recovered. The applicant also referred to the decision in Ozcan v Macarthur Disability Services Ltd[2].
[1] 1990) 10 MVR 570; [1990] Aust Torts Reports 81-003.
[2] [2021] NSWCA 56.
The applicant reiterated that it was contrary to natural justice for the respondent to argue that there was an intervening event that occurred at a bar in the absence of a dispute notice setting out its case.
The applicant observed that the respondent had filed employment records from the applicant’s subsequent employers. No claims had been made on the subsequent employers for a work injury. The applicant had given a detailed explanation of his subsequent employment history, including the duties he performed. There was no inadequacy in the applicant’s evidence in this regard.
The applicant referred to a confidential medical report commissioned by Cleanaway Operations in 2019. The applicant was noted to have a chronic back condition and restrictions from heavy lifting and repetitive bending. The applicant submitted that the report and the other employment files did not record any new injury, just a risk of one occurring.
The applicant said his condition had simply deteriorated over time without further injury.
With regard to the suggestion by Dr Kohan that the applicant’s symptoms were potentially aggravated by lifting a heavy pipe, the applicant referred to the decision in Mason v Demasi[3] and submitted that the record should be approached with caution. The applicant had explained that there had been a misunderstanding on Dr Kohan’s part. The applicant had explained the nature of his work at Coates Hire.
[3] [2009] NSWCA 227.
The applicant submitted that Dr Porteous’ history was consistent with the applicant’s statement evidence.
The applicant noted the evidence with regard to the applicant’s weight. At the time of the injury, the applicant’s evidence was that he weighed approximately 130kg. After the injury, the applicant’s weight ballooned, and this was caused by his injury. Dr Porteous said there was no doubt that this extra weight caused increased pressure on the spine.
The applicant submitted that there was an unbroken chain of causation between the original injury and the need for the surgeries. The applicant’s case was supported by the respondent’s own expert, Dr Machart.
The argument by reference to ss 15 and 16 was under-developed.
There was no suggestion that the surgeries were not reasonably necessary medical treatment.
The applicant’s case was straightforward. The material contribution test was comfortably satisfied.

Respondent’s submissions in reply

The respondent noted that the records from the applicant’s subsequent employers showed that the applicant had not disclosed his back condition to his subsequent employers prior to the commencement of employment.
The respondent observed that the material on which it sought to rely, including the reports of Dr Kohan and the clinical records, were all attached to the Application to Resolve a Dispute. There was no denial of procedural fairness.
The applicant had prepared a series of written statements but failed to address a lifting incident or even any employment at a bar. The applicant simply said he started to see
Dr Kohan because of his back pain. Viewing the evidence chronologically, the evidence suggested that something happened in late 2014. This was consistent with the significant pathology found on the MRI scan in 2015, which was distinct from the minor disc pathology noted by Dr Bodel in 2012.
The applicant had made submissions about there being a vulnerable disc following the work injury and subsequent flareups as a result but that was not Dr Porteous’ evidence.
Dr Porteous simply said everything was caused by the original injury without dealing with the subsequent aggravations or flareups.
The applicant agreed that the relevant question was whether there was a material contribution to the need for surgery from the injury. It was the applicant’s onus to demonstrate a commonsense causal relationship. The applicant had failed to discharge his onus.

FINDINGS AND REASONS

Whether the s 78 notice adequately notified the applicant of the dispute?

The applicant’s submissions at the arbitration hearing took issue with the respondent’s compliance with the requirements of s 78 of the 1998 Act to the extent that it alleged that there was a novus actus interveniens which had broken the chain of causation between the accepted work injury and the surgeries performed by Dr Kohan. The applicant submitted this was a matter which ought to have been properly particularised in a dispute notice prior to the commencement of the Commission proceedings or the subject of an application for leave under s 289A(4) of the 1998 Act. To proceed to consider those submissions would was said to constitute a denial of procedural fairness to the applicant.
Section 78 of the 1998 Act requires insurers to give notice of any decision to dispute liability in respect of a claim or any aspect of the claim. Section 79 of the 1998 Act provides that the notice must contain a concise and readily understandable statement of the reason for the insurer’s decision and the issues relevant to the decision any provision of the workers compensation legislation which the insurer relies to dispute liability.
In the case of Mateus v Zodune Pty Limited t/as Tempo Cleaning Services[4] Roche DP, dealing with the predecessor to s 78 commented:
“A section 74 notice must state in plain language, in the body of the document, the reason the insurer disputes liability and the issues relevant to that decision. An obscure reference to a document attached to the notice, but dealing with a different issue to that identified in the notice, is not sufficient.”
[4] [2007] NSWWCCPD 227.
In the dispute notice dated 22 January 2024 issued by the respondent insurer in this case, it was stated that liability was denied, amongst other reasons, because the lumbar surgeries claimed did not arise as a result of a workplace injury. The dispute notice extracted a passage from Dr Machart’s report, dated 12 December 2023, in which the doctor stated that the applicant’s post-injury employment with other employers,
“…which was strenuous and manual, caused additional injuries to his spine, to the extent of requiring two operations…”
Dr Machart noted that the applicant had worked in physically demanding jobs, including work in a bar and for Coates Hire, in an unrestricted fashion, after ceasing employment with the respondent.
In my view, the s 78 notice adequately notified the applicant of the matters on which the respondent sought to rely in the Commission proceedings. While both the s 78 notice and the respondent’s submissions touched on the question of whether there was a subsequent injury for the purposes of s 16 of the 1987 Act, the respondent’s primary submission was that the applicant had failed to discharge his onus of establishing that the workplace injury materially contributed to the need for the surgeries performed by Dr Kohan.
I am not satisfied that there has been any denial of procedural fairness or failure to comply with the notice requirements in the 1998 Act in relation to the matters relied upon by the respondent in its submissions before the Commission.

Whether the 2015 surgery was reasonably necessary as a result of the injury?

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 the surgeries performed by Dr Kohan were reasonably necessary “as a result of” the injury. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[5] 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 [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[5] [2008] NSWCA 246.
A commonsense evaluation of the causal chain is required. The applicable test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates,[6] where Kirby P said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[6] (1994) 10 NSWCCR 796 at [810].
His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”

A need for treatment can “result from” multiple causes. In Murphy v Allity Management Services Pty Ltd[7] Roche DP stated:
“…That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
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).”
[7] [2015] NSWWCCPD 49.
There is no question that the applicant sustained a significant injury in March 2010 in the course of his employment with the respondent. The treating medical evidence confirms that the applicant’s lumbar spine remained symptomatic, flared up from time to time and required frequent medical intervention in the two years that followed.
Although there is evidence that the applicant had experienced and sought medical treatment for similar symptoms at his lumbar spine previously, it is accepted that the work injury involved a significant aggravation of pathology at the applicant’s lumbar spine. This is reflected in Dr Bodel’s assessment of 7% WPI resulting from the injury at the lumbar spine.
By early 2012, the treating evidence recorded that the applicant had returned to work
35 hours per week with a goal of resuming pre-injury hours. The applicant did, however, continue with pain medication on a regular basis.
In his report, dated 27 March 2012, Dr Bodel also noted that the applicant continued with medication, exercise and physiotherapy. The applicant was taking 200 mg of Tramal per day but coping with his work activities. Dr Bodel recorded that there was no indication for surgery at that stage and, notably, did not anticipate that surgery would be required in the future.
Dr Bodel did, however, consider that there would be inevitable flareups of pain from time to time for which the applicant might require analgesic medication and intermittent physiotherapy.
In the period after Dr Bodel’s assessment there is no indication that the applicant required additional medical intervention for his lumbar symptoms for a period of approximately 2-and-a-half years.
On 17 November 2014, the applicant is recorded to have reported an increase in back pain in the context of work at a bar and lifting things over the weekend. Over the next three months, the applicant was prescribed Panadeine Forte and was referred for an MRI scan, which was performed on 30 January 2015. This scan revealed a very large disc extrusion extending centrally to the left side, compressing the descending nerve roots, probably bilaterally, at S1.
The pathology noted on 30 January 2015 may be contrasted with the pathology noted on the MRI reports performed closer to the date of injury. The MRI performed on 30 April 2010 noted a broad-based disc bulge causing impingement on the left side traversing the S1 nerve root. On 10 February 2011, a further MRI was reported to show a “small to moderate” central disc protrusion with no significant neural impingement. Dr Bodel described the disc pathology at the lumbosacral junction as “minor” in his 27 March 2012 report and did not, at that date, find clinical signs of radiculopathy.
The applicant was referred to Dr Kohan and saw him on 17 February 2015. The history recorded by Dr Kohan was of a “sudden onset” of severe left buttock and posterior thigh and calf pain with numbness over the sole of his left foot. Dr Kohan did not record a history of work in a bar or lifting heavy objects over a weekend, but did refer to the sudden onset of symptoms occurring after the applicant had bent over while drying himself after a shower.
Dr Kohan noted that the disc protrusion was very large and had caused significant canal narrowing. In light of the radiological findings and clinical presentation, Dr Kohan immediately recommended surgical removal of the herniated fragment.
On review of the evidence, I am not prepared to make a positive finding that there was a particular “intervening event” or new “injury” in or around November 2014. The inconsistent reporting of a mechanism in the clinical notes and Dr Kohan’s report is unexplained. The treating medical evidence is, however, consistent with a sudden onset of new symptoms and the revelation of new and more significant pathology around that time, as a result of which surgery was required.
Up until that point, while I accept that the applicant’s lumbar spine may have been persistently symptomatic from the date of the work injury, the evidence indicates that the applicant had been able to resume suitable employment and had required minimal medical intervention for a period of some 2-and-a-half years. Although in November 2011, Dr Al Khawaja had discussed surgery as a possible treatment option at some point if the applicant were unwilling to persist with conservative treatment options, Dr Bodel confirmed that no surgery was actively being considered. Dr Bodel did not consider that surgery would be required in the future at the time of his second report.
The applicant’s statement evidence is silent as to what happened in late 2014 to prompt the consultation with his general practitioner, further MRI and referral to Dr Kohan. The applicant has not addressed the reported mechanisms of lifting heavy objects while working at a bar or bending over to dry himself after a shower recorded in the treating evidence.
In Davis v Council of the City of Wagga Wagga,[8] it was observed:
“Experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury.”
[8] [2004] NSWCA 34.
The applicant’s submissions noted the inconsistencies between the clinical records and
Dr Kohan’s report with respect to the timing of the onset of new symptoms and the reported mechanism. I have approached the treating evidence with caution accordingly. I have noted above that the evidence does not satisfy me that there was a particular “intervening event” or new “injury”. It remains, however, the applicant’s onus to demonstrate a commonsense causal relationship between the workplace injury and the surgery that was performed in 2015.
The applicant relies on the medicolegal opinion of Dr Porteous in this regard. Although Dr Porteous has given an opinion that the work injury was causally related to, and indeed the primary contributing factor to, the surgeries, Dr Porteous did not engage with the evidence of a sudden onset of new symptoms or the radiological evidence of a change in pathology immediately prior to the recommendation for surgery. Dr Porteous simply reasoned that lower back pain and left leg pain had started with work injury and persisted.
Dr Machart was cognisant of the report of work in a bar and suggested there had been further injuries to the applicant’s lumbar spine as a result of strenuous and manual work performed after the work injury.
The applicant draws support for his case from Dr Machart’s comment that the workplace injury contributed to a “small extent” to the need for surgery.
Dr Machart did accept that the workplace injury remained a contributing factor to the overall permanent impairment found at the lumbar spine. Dr Machart commented, however, that he failed to see how the contribution of the workplace injury was “any greater than the 7% already awarded”. Dr Machart said that any additional impairment was related to employment beyond that time.
Dr Machart also referred to the pre-injury pathology at the lumbar spine. He also commented that if the applicant had not been exposed to unrestricted work after he ceased employment with the respondent, he would not have had the two surgeries. Dr Machart said that doing those jobs, bearing in mind the 7% WPI awarded by Dr Bodel, caused additional injuries to the applicant’s spine, to the extent of requiring the two operations.
It is in this context that Dr Machart’s comment that there was a “small” contribution to the need for surgery must be viewed. I am not satisfied, reading Dr Machart’s report as a whole, that he has expressed a clear and reasoned opinion that there was a “material contribution” to the need for surgery from the workplace injury.
While there are real questions around whether the evidence supports a finding that there were subsequent work related injuries, as suggested by Dr Machart, it is neither necessary nor appropriate for me to attempt to make such a finding in these proceedings. No claim has been made on any subsequent employer, nor has any subsequent employer been joined to the current proceedings. It is not open to me to find that some employer other than the respondent is liable to pay compensation having regard to ss 15 or 16 of the 1987 Act.
As both parties have submitted, the question I am tasked with determining in these proceedings is whether the workplace injury in March 2010 “materially contributed” to the need for the surgery performed by Dr Kohan.
For the reasons given above, while I accept that the injury had resulted in permanent impairment at the lumbar spine, I am not satisfied that the need for surgery “resulted from” it. I am not satisfied that there is a sufficient causal connection between the injury and the surgery. I am not satisfied that an unbroken causal chain between the injury and the need for surgery has been established.
The applicant has submitted that the circumstances of this case fall within the first category of case described in State Government Insurance Commission v Oakley[9] (Oakley). In Oakley, Malcolm CJ identified three categories of case where a subsequent injury is relevant to the assessment of damages consequential upon an earlier injury. While the Chief Justice’s observations were made in the context of proceedings at common law, they have been found to be applicable to causation disputes under the statutory workers compensation scheme. The three categories were described as:
“(1) where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;
(2) where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; and
(3) where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include [sic] no element of aggravation of the earlier injury, the subsequent and further injury should be regarded as causally independent of the first.”
[9] 1990) 10 MVR 570; [1990] Aust Torts Reports 81-003.
There is, however, simply no medical evidence to support a finding that this case falls within either category one or category two. The applicant’s statement evidence and the history provided to Dr Porteous were silent with regard to any accident or event in late 2014 or early 2015, although I find that it is clear that something happened. There is no medical opinion before me that any incident around that time would not have occurred had it not been for the workplace injury. Nor is there any medical opinion that any incident around that time had caused greater damage because of the persisting workplace injury. I am not satisfied that the material that is before me is sufficient to permit either inference to be drawn.
Having carefully considered all of the evidence and submissions, I am not satisfied that the 2015 surgery was reasonably necessary as a result of the injury.

Whether 2022 surgery was reasonably necessary as a result of the injury?

The treating medical evidence and the applicant’s statement evidence indicate that after the 2015 surgery, the applicant experienced a period in which he was essentially pain-free, although he did to continue to experience some paraesthesia in his toes. On 4 May 2015,
Dr Kohan reported that the applicant was not taking any analgesia and was trying to return to work.
This period of relief was, however, short lived. In June 2016, the applicant returned to see his general practitioner and was noted to have reported pain radiating to both legs after a twisting incident three months earlier. The twisting incident is not referred to in the applicant’s statement evidence or the history recorded by Dr Porteous.
A moderate to large central disc protrusion mildly compressing the left S1 nerve root was noted on radiological investigations performed in June and September 2016. This prompted the applicant to return to Dr Kohan, who at the time noted that the applicant was on his feet walking for 9-and-a-half hours, four or five days per week and kayaking. Dr Kohan recommended that the applicant persist with conservative treatment.
There then appears to have been a gradual deterioration in the applicant’s symptoms requiring the use of increasingly strong medication. An MRI performed on 21 January 2021 also showed a progression of the pathology. The applicant saw Dr Kohan again on
7 December 2021, who at that time noted a 12 month history of increasing pain potentially aggravated by the use of a heavy pipe while at work.
The applicant has denied that he used heavy pipes at work and has suggested that this history was erroneous.
I accept that there is insufficient evidence before me to permit a positive finding that the applicant sustained a further workplace injury as a result of using a heavy pipe in late 2020 or thereabouts.
It is, however, necessary for the applicant to demonstrate a commonsense causal chain between the workplace injury and the discectomy and fusion performed on 2 May 2022.
Having carefully considered all of the evidence and submissions, I am not satisfied that the applicant has discharged this onus for largely the same reasons as those given above in respect of the 2015 surgery.
There is evidence of a sudden onset of new symptoms and pathology in late 2014 or early 2015 leading to surgery at the same level. The applicant’s evidence was silent as to the reported twisting incident in early 2016 which appears to have triggered a further onset of new symptoms and pathology. Dr Porteous did not consider any such incident nor did he address the impact of the applicant’s work as a security guard or kayaking in giving his opinion. I am not satisfied that support for the applicant’s case can be found in Dr Machart’s reports when read as a whole. In these circumstances, I am not satisfied that an unbroken causal chain between the injury and surgery has been established.
While I accept that the surgery was performed at the same level as the workplace injury, and I accept that the workplace injury had resulted in permanent impairment, I do not feel a sense of actual persuasion that the 2022 surgery “resulted from” the workplace injury.

Orders

Despite the findings above, the parties have agreed that there remains a medical dispute as to the degree of further permanent impairment at the applicant’s lumbar spine resulting from the workplace injury. That medical dispute is to be referred to a Medical Assessor. This Certificate of Determination and Statement of Reasons are to be included in the materials to be referred to the Medical Assessor.
Although Dr Porteous had made an assessment for a posterior scar at the lumbar spine, having regard to the findings above it is not appropriate for the skin / TEMSKI to be referred to the Medical Assessor.
In remitting the matter for referral, I have used the deemed date of injury which appeared in the Application to Resolve a Dispute and the earlier complying agreement. I note, however, that the deemed date of injury is recorded differently elsewhere in the material.
The matter is to be listed for further preliminary conference on receipt of the Medical Assessment Certificate to deal with the outstanding claims for medical and related treatment expenses and weekly compensation.

[2025] NSWPIC 193

7 May 2025