Assad v DC Payments Australasia Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Assad v DC Payments Australasia Pty Limited [2021] NSWPIC 184
APPLICANT:	Essam Assad
RESPONDENT:	DC Payments Australasia Pty Limited
MEMBER:	Michael Wright
DATE OF DECISION:	16 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim pursuant to section 60 of the 1987 Act for the cost of two proposed nucleoplasty surgical procedures at L4/5 and L5/S1; “reasonably necessary” in dispute; Rose v Health Commission (NSW) and Diab v NRMA Ltd considered; Held- proposed surgical procedures are reasonably necessary.
DETERMINATIONS MADE:	1. The surgeries proposed by Professor Papantoniou, being an L4/5 nucleoplasty, and a separate L5/S1 nucleoplasty, are reasonably necessary as a result of the injury on 17 April 2015.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute (ARD), Mr Essam Assad (the applicant) claims pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act) surgery proposed by Professor Papantoniou, being an L4/5 nucleoplasty, and a separate L5/S1 nucleoplasty, (the proposed surgery) as a result of injury on 17 April 2015 in the course of his employment with DC Payments Australasia Pty Limited (the respondent).
In a section 78 notice dated 8 January 2021, the workers compensation insurer disputed that the proposed surgery was reasonably necessary as a result of the injury of 17 April 2015. The workers compensation insurer also disputed an entitlement to ongoing medical expenses pursuant to section 59A of the 1987 Act.
In a section 287A review letter dated 8 February 2021, the workers compensation insurer noted that it had accepted liability for the lumbar spine injury on 17 April 2015 and confirmed its dispute in relation to the claim for the proposed surgery.

PROCEDURE BEFORE THE COMMISSION

At the conciliation/arbitration of this matter on 10 May 2021, the applicant was represented by Mr De Meyrick of counsel, and the respondent by Mr Beran of counsel.
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.
The applicant was granted leave to amend the ARD to delete the deemed date of injury and injury description, and to plead personal injury to the back arising from a frank incident on 17 April 2015 while lifting/moving a heavy ATM machine. Leave was also granted to amend the ARD amount claimed for medical, hospital and related expenses to be “estimated $15,000 - $20,000”.
It was submitted by the parties that, having regard to the operation of section 59A of the 1987 Act, the appropriate course was for the Commission to consider a finding as to whether the proposed surgery is reasonably necessary without making an order for payment, if the applicant were to be successful in his claim in these proceedings. Reference was made to Collet v Flying Solo Properties Pty Limited [2014] NSWWCC348. I accept this is the appropriate course.

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) The ARD and attached documents;
(b) Reply and attached documents;

(c) Application to admit late documents dated 9 April 2021 and attached documents;

(d) Application to admit late documents dated 4 May 2021 and attached documents.

Oral Evidence

There was no application to give oral evidence nor was there an application to cross-examine the applicant.

Evidence

Applicant’s statement

The applicant provided a statement dated 19 June 2020.
He was born on 1 October 1985 and is presently 36 years of age. I note from the medical report of Dr Gehr that the applicant was born in Iraq and came to Australia in 2000.
He said that the respondent installs and maintains ATMs. These were mostly standalone machines installed in petrol stations. He had been doing this work for about 2 ½ years on a full-time basis prior to the workplace incident.
The applicant in his statement did not otherwise refer to the workplace incident, although injury on 17 April 2015 in the course of the applicant’s employment with the respondent is not in dispute.
He stated that he was referred for x-rays and an MRI and he has had injections of cortisone on four separate occasions. He was also referred to Dr George Hanna, his treating chiropractor, which provided some relief, however it was minimal.
The applicant also stated that he was referred to Prof Papantoniou, his treating orthopaedic surgeon, who arranged for further injections of cortisone and further physiotherapy, none of which helped. He was also recommended for facet joint injections by Prof Papantoniou but the applicant said that this was declined by the workers compensation insurer.
The applicant said that Prof Papantoniou had proposed surgery in the form of nucleoplasty at L5/S1. The applicant said that he requires this treatment as it may potentially alleviate the pain that he is suffering.
The applicant stated that he had no prior history of lower back problems and consults
Dr George Hanna, chiropractor, and his GP, Dr Moussad and he takes 50 mg of tramadol every six hours.

Professor Papantoniou

Prof Papantoniou, orthopaedic and spinal surgeon, has provided reports dated 11 May 2016, 10 April 2019, 5 June 2019, 24 July 2019, 25 September 2019, 16 June 2020 and 7 December 2020.
In his report dated 11 May 2016, Prof Papantoniou recorded a history that the applicant was at work a year ago lifting an ATM which weighed approximately 120 kg and he was being assisted by work colleagues. The applicant felt his lower back give way as they were pushing the ATM into a van. He suffered immediate back pain. The next day he attended his GP and was given analgesics. Prof Papantoniou noted that the applicant continues to suffer bilateral lower back pain in the L5/S1 region and he also has left sciatica in the S1 distribution.
Prof Papantoniou noted that the applicant described feeling of pain and heat in both his lower back and down the S1 distribution and these are both present day and night and cause him some sleep disturbance. It was noted that he is undertaking chiropractic therapy with some benefit.

On examination, Prof Papantoniou noted tenderness in the bilateral L5/S1 paraspinal muscle region and forward flexion was associated with lower back pain. It was noted that lateral tilts reproduced lower back pain and were mildly stiff. There was normal neurological examination of both lower limbs and a negative sciatic nerve stretch test. An upright MRI dated 19 February 2016 demonstrated mild disc bulges at L4/5 and L5/S1 with the L5/S1 disc being slightly more bulged to the left. It was noted that there does not appear to be any nerve root impingement.
Prof Papantoniou was of the opinion that the applicant appeared to have suffered disc bulges at L4/5 and L5/S1 as a direct result of the work injury. He was of the opinion that “the mechanism of injury and the timing are consistent with the pathology identified on MRI and all of this is consistent with the history given.” He was of the opinion that given no prior history of lower back problems nor of any activities otherwise likely to cause pathology “I have no choice but to attribute the identified disc bulges at L5/S1 and L4/5 wholly to his work injury”. Prof Papantoniou, recommended core stability exercises and a supervised gym program and referred him for a left directed L5/S1 epidural steroid injection. He arranged for further review in one month.
In a report dated 10 April 2019, Prof Papantoniou noted that he last saw the applicant in June 2016 for a work injury. He noted that the left directed L5/S1 epidural steroid injection apparently worked well for six months but it only stopped the left lower limb pain.
Prof Papantoniou recorded a history that the applicant left lower back pain with radiation into the left buttock and the left S1 sciatica and he occasionally has a right S1 sciatica. He noted that the pain is present day and night and causes sleep disturbance every night and it is worse with certain activities. He noted that the pain is constant and fluctuant in intensity. He continued to take medication at various times for pain relief and had had therapy with
Dr George Hanna which was helpful.
Prof Papantoniou noted an MRI of the lumbar spine dated 8 February 2019. He was of the opinion that “this demonstrates an L5/S1 annular tear with the central disc bulge” and “no particular nerve root impingement from the L5/S1 disc”. He noted that “at L4/5 he has a disc bulge which is mostly on the left impinging in the left sub articular region and the lateral recess. He has a small annular tear. The disc bulge is impinging on the descending nerve roots.”
Prof Papantoniou was of the opinion that the applicant’s pain “is coming from the L4/5 disc”. He is also of the opinion that “the left sided disc prolapse is probably causing pain directly from impingement on the nerve roots. If is not from the L4/5 disc then it will be from the L5/S1 disc”. He referred the applicant for a left L4/5 foraminal epidural steroid injection which “should provide both diagnostic and therapeutic effect” and “if it does not work diagnostically… then I will send them for a left directed L5/S1 epidural steroid injection”. He noted that “once the level has been identified I have explained to him that I will recommend a nucleoplasty at that level”.
In his report dated 5 June 2019, Prof Papantoniou noted that the L4/5 epidural injection on 24 April 2019 did not work. He arranged for a left directed L5/S1 epidural steroid injection. He recommended that the applicant continued to take Endone and to start physical therapies.
Prof Papantoniou, in his report dated 24 July 2019, noted that the applicant continued to have central bilateral lower back pain around the L5/S1 level and radiation into both buttocks and the left S1 distribution. He noted that the lower back pain is worse than the lower limb pain. Prof Papantoniou noted that both the L4/5 and the L5/S1 epidural injections did not help. He noted that Brufen and Voltaren and also paracetamol have been of no benefit.
Prof Papantoniou was of the opinion that the pain appears to be L5/S1 discogenic in origin with a left S1 nerve root irritation. He was of the opinion it needed to be investigated further to be sure. He arranged for a bone scan and an MRI of the lumbar spine and arranged also for referral to Dr Rooney in relation to the pain in his feet.
In his progress report of 25 September 2019, Prof Papantoniou noted that the applicant continued to have bilateral lower back pain at L4/5 and L5/S1. He noted a left S1 radiculopathy and a right posterior proximal thigh pain.
Prof Papantoniou noted another MRI of the lumbar spine which demonstrated L3/4 and L4/5 posterior disc bulges. He noted that “the L3/4 disc bulge is generalised and causing an early stenosis. The L4/5 disc bulge is slightly more left-sided. At L5/1 he has an annular tear”. He noted the bone scan demonstrated “moderate degenerative changes at the L5/S1 disc with endplate sclerosis. He also has moderate degenerative facet joint arthropathy on the left at L5/S1 and on the right at L4/5”.
Prof Papantoniou was of the opinion that it appeared that the applicant had multifactorial pain. Prof Papantoniou believed that the facet joints were the source of some of the lower back pain “but given the distribution of his pain the L5/S1 disc appears to be the source of a lot of this pain”. Prof Papantoniou believed that the applicant was “best served with bilateral L4/5 and L5/S1 facet joint steroid injections as well as an L5/S1 nucleoplasty”.
Prof Papantoniou was of the opinion that treatment for the facet joints “will be simply steroid injection at present”. He was also of the opinion that “the L5/S1 discogenic pain will need a nucleoplasty”. He also noted that the applicant was “keen to proceed to the nucleoplasty as soon as possible and has asked me to write to his insurer seeking an approval”.
Prof Papantoniou asked the applicant to have his facet joint steroid injections while they were awaiting approval.
In his report dated 16 June 2020, Prof Papantoniou noted that the applicant’s pain was worse. He noted that:
“He continues to complain of a lateral lower back pain which is constant in nature and fluctuant in intensity. It is present day and night and causes him sleep disturbance every night. The only time he can get a reasonable amount of sleep is if he takes analgesia. He continues to take significant amounts of tramadol as well as paracetamol. He also continues to have a bilateral L5 and S1 radiculopathy.
…
He is not had any steroid injections nor do we have approval for his nucleoplasties.”
Prof Papantoniou was of the opinion that “I still believe Mr Assad is best treated with an L4/5 and L5/S1 nucleoplasty”.
Prof Papantoniou noted that the L4/5 and L5/S1 nucleoplasties “would need to be performed on different days to ascertain the effects of the procedures”.
In his report dated 7 December 2020 to the applicant’s solicitors, Prof Papantoniou noted that he had seen the applicant numerous times from 11 May 2016 until 7 December 2020 when he saw the applicant for the purpose of that report. Prof Papantoniou confirmed the previous history of injury, pain, symptoms and treatment.
Prof Papantoniou noted that the applicant “continues to complain of a central and bilateral lower back pain from L4 down to S1”. He noted the pain from this region radiating into the left buttock and the left S1 distribution more intensely than the left L5 distribution. Prof Papantoniou also noted pain radiating into the right buttock and down in the right L5 distribution more than the right S1 distribution. He noted that at present it seemed that the left S1 is worse and on the right L5 is worse with a combination of pain and paraesthesia. He noted all the pains are present day and night and cause some sleep disturbance. He noted that the pain is constant and fluctuant in intensity and the applicant continues to use pain medication four times a day with some benefit but with gastrointestinal side effects. Chiropractic therapy was no longer of benefit. He noted altered gait.
On examination, Prof Papantoniou noted no paraspinal muscle tenderness and forward flexion reproduced lower back pain at the L5/S1 level. He noted that “lateral tilts to the right reproduced a left sided L4/5 lower back pain. Lateral tilts to the left reproduced a right-sided L4/5 lower back pain”. Neurological testing revealed normal sensation, normal power, normal reflexes and straight leg raising to 80° on both sides. He noted “positive bilateral sciatic nerve stretch tests”.
Prof Papantoniou reviewed a new MRI and CT scan dated 1 April 2020. He was of the opinion that “this demonstrated L4/5 and L5/S1 annular tears and central disc bulges. At L3/4 and L4/5 there was mild disc desiccation.”
Prof Papantoniou confirmed his initial opinion of disc bulges at L4/5 and L5/S1 as a direct result of the work injury. Prof Papantoniou noted that “he has developed mild disc desiccation in keeping with progression of the pathology”.
Prof Papantoniou also noted that since his original diagnosis and request for an L5/S1 nucleoplasty he had “now extended this to the L4/5 level as well”.
Prof Papantoniou also stated that “I believe Mr Assad’s prognosis must be guarded given that he has a three-level lumbar spine disc injury as a result of his work injury and he now has had ongoing pain for more than five years.”
Prof Papantoniou was of the opinion that:
“he clearly has had far more than the usual nonoperative management and, with five years between injury and now, it is almost unheard of that he would settle down in terms of pain without surgical intervention”.
Prof Papantoniou believed that these two procedures would “improve his pain profile and alleviate some of the consequences of his injury” and he expected that “he will have some amount of improvement in his functional capacity and potentially may avoid, at least temporarily, a three-level spinal fusion”.
Prof Papantoniou believed that “the two procedures are reasonable and necessary as they are an appropriate treatment for the identified pathology on imaging”. He stated that “many studies dating back to 1994 have shown good results. There have been over 500,000 of these procedures performed worldwide for this and similar pathology”.
Prof Papantoniou stated that:
“the alternatives are ongoing nonoperative management which in Mr Assad’s case has been ineffective for five years. The other alternative is to proceed directly onto a three-level multi-staged spinal fusion which I believe at present, is too large a procedure considering the clinical picture”.

Injury Management Plan

In an injury management plan dated 19 May 2015, was completed by an officer of Allianz and countersigned by the nominated treating doctor, Dr Dong Hua, with reference to Medical Capacity it was noted that current diagnosis was lumbar back sprain with left sided radiculopathy.

Dr Lim

Dr Lim, GP, provided a report dated 3 March 2018.
In his report, Dr Lim noted that he initially consulted the applicant on 5 February 2016 for an injury to the lower back. He last consulted the applicant on 25 June 2016.
Dr Lim recorded a history that on 15 April 2015 the applicant reported that he suffered a lower back injury at work from lifting an ATM into the car. Dr Lim noted that “the pain has been getting worse since” and also noted bilateral knee pains from bending.
Dr Lim noted symptomatology of persistent lumbar back pain with left sciatic pain and knee pain.
On examination, Dr Lim noted significant findings of tenderness bilateral L5/S1 paraspinal muscle region, consistent with the injury sustained and supporting the diagnosis.
Dr Lim diagnosed lower back sprain/strain, bulging disc, radiculopathy and bilateral knee strains. He noted that the MRI lumbar spine investigations to date were consistent with the injury and the diagnosis was based on clinical findings. He referred the applicant for physical therapy and also to Prof Papantoniou.

Dr Gehr

Dr Gehr, orthopaedic surgeon, was qualified by the applicant’s solicitors and provided a medicolegal report dated 30 July 2020 and a supplementary report dated 16 January 2021.
In his report dated 30 July 2020, Dr Gehr noted the imaging, including MRI lumbar spine of 15 June 2015, demonstrated mild broad-based bulge at the lower three lumbar vertebral levels with no neural compromise and no impingement on the left S1 nerve. Multi-positional MRI lumbosacral spine of 19 February 2016 was noted to demonstrate lower lumbar disc bulging, particularly at L2/3, L3/4 and L4/5 but no detected significant canal stenosis, and mild neuro foraminal stenosis at L3/4 and L4/5 bilaterally and no significant interval change from the previous study. Multi-positional MRI lumbosacral spine dated 10 April 2017 was noted to demonstrate no significant change since the previous examination and also noting persistent minor herniations and minor foraminal stenoses. MRI lumbosacral spine dated 8 February 2019 was noted to demonstrate that:
“although no acute disc protrusion is present, developmental narrowing of the spinal canal is present, in such cases, even minor disc protrusion can sometimes be symptomatic. This so, given moderate mass effect on the thecal sac especially at L3/4, causing crowding of the nerves within the thecal sac at this level. Perineural fibrosis (mild) is also noted at L3/4. At no point is any central canal or foraminal stenosis established. Based on the MRI therefore, the patient may have signs and symptoms arising from mass effect on the thecal sac at L3/4, with a lesser contribution from the slightly scarred exiting nerves at the other levels as above."

A report dated 7 August 2019 was said to demonstrate scan findings consistent with degenerative changes of the facet joints and intervertebral disc disease at L5/S1.
Dr Gehr recorded a history of the accident at work on 17 April 2015 when the applicant was lifting an ATM machine and putting it into a van by himself and as he started pushing it into the back of the van he had onset of pain in the lower part of his back.
Dr Gehr noted that the applicant stated that he is still having pain in his lumbar spine present all the time and the pain radiates down to his left foot and there is also pain down the right leg but mainly on the left. He noted that there was reported stiffness of the back. Dr Gehr also noted that “it is over five years since subject he tells me it is steadily getting worse”.
On examination, Dr Gehr noted no pain behaviours, though non-physiological behaviours and no exaggerations and the applicant walked with an unsteady gait and had difficulty standing on toes and on heels and was not able to squat. He noted on examination of the lumbar spine tenderness of the left paralumbar area.
Dr Gehr summarised his examination findings as evidence of lumbar spine spasm, dysmetria, positive nerve tension test on the left side and hyper brisk deep tendon reflexes over the left knee.
Dr Gehr diagnosed lumbar spine discogenic injury with left radiculopathy. He noted the treatment note of Prof Papantoniou of 10 April 2019 in which the MRI of 8 February 2019 was noted to demonstrate L5/S1 annular tear with central disc bulge and at L4/5 a disc bulge mainly on the left impinging on the left sub articular region and lateral recess and the disc bulge is impinging on the descending nerve roots.
Dr Gehr noted the MRI of the lumbar spine dated 1 April 2020 reported “left L4 radiculosis and also at L3/L4” and that “at the L4/5 level the annular disc bulge rubs on the exiting L4 nerve roots slightly more on the left.” Dr Gehr was of the opinion that supported his history and examination findings.
Dr Gehr was of the opinion that “given that is now over five years since subject accident he remains significantly symptomatic and prognosis is poor”.
Dr Gehr recommended that the applicant should proceed with the L5/S1 nucleoplasty as recommended by the treating spinal surgeon.
Dr Gehr disagreed with the opinion of Dr Panjratan dated 6 January 2020 that the surgery was not reasonably necessary. Dr Gehr was of the view that it had been over five years since the subject accident and the applicant remained significantly symptomatic and has exhausted all nonoperative options and is now reasonable to consider the surgical option recommended by the treating spinal surgeon.
Dr Gehr also disagreed with the opinion of Dr Breit dated 29 June 2015. Dr Gehr noted that it should be remembered that the report was done over five years ago and the applicant has been off work for the last 2 ½ years and had essentially exhausted all nonoperative management options. Dr Gehr disagreed with Dr Breit’s characterisation of the pain as a sacroiliac dysfunction. Dr Gehr was of the opinion that “from the history, the opinions of his treating spinal specialists it is a discogenic injury related to pathology in the lower lumbar spine”.
In his supplementary report dated 16 January 2021, Dr Gehr noted that Prof Papantoniou had now proposed L4/5 and L5/S1 nucleoplasty as opposed to the initial L4/S1 nucleoplasty. Dr Gehr noted the opinion of Prof Papantoniou in his report of 7 December 2020. Dr Gehr was of the opinion that the proposed surgery is “reasonable and necessary” and related to the applicant’s back injury sustained as a result of his employment.

Dr Breit

The workers compensation insurer referred the applicant to Dr Breit, orthopaedic surgeon, for examination and report. Dr Breit provided a report to the workers compensation insurer dated 29 June 2015.
Dr Breit recorded a history that the applicant said that the ATM machines weigh between 120 and 500 kg and the smaller machines were deemed to be a one man lift and were moved as such. He noted that the heavier machines were moved with a mechanical lifting device as a two-man job which still required quite a deal of manhandling to move them into place. He noted that the applicant was “replacing an old ATM machine that was heavier than the newer variety and he had some acute low back pain”.
Dr Breit noted present complaints as being pain across the low back occasionally radiating up a little and there is some posterolateral pain but there are no pins and needles.
On examination, Dr Breit noted that the applicant was tender in the lower lumbar spine but much more so over the right sacroiliac joint. He also noted that he was able to sit and fully extend both legs but straight leg raising was limited bilaterally with low back pain and no evidence of sciatic nerve root irritability.
Dr Breit reviewed a lumbar MRI dated 15 June 2015 and noted that it showed “broad-based disc bulges at L3/4, L4/5 and L5/S1 but there is no evidence of nerve root impingement”.
Dr Breit was of the opinion that the applicant “sustained a sacroiliac injury and he may well also have a component of back pain”. Dr Breit noted the MRI showed changes in the lumbar discs “but given the duration of his employment and its nature one cannot indicate whether or not they predate commencing with your insured. One cannot tell the age of a disc bulge”.

Dr Panjratan

The workers compensation insurer referred the applicant to Dr Panjratan, orthopaedic surgeon, for examination and report. Dr Panjratan provided a report to the workers compensation insurer dated 6 January 2020, and supplementary reports to the solicitors for the respondent dated 23 November 2020 and 18 December 2020.
In his report dated 6 January 2020, Dr Panjratan recorded the history of injury as:
“on 17 May 2015 Mr Assad injured his back moving and ATM machine into a van… The injury happened on that occasion due to incorrect information provided. There were two types of ATM machines, a lightweight ATM machine weighing around 120 kg and heavyweight ATM weighing around 220 kg. The light ATM is tilted into a van and then pushed by a single worker. The heavy ATM has to be moved by two workers”.
Dr Panjratan did not record whether the applicant was moving the heavier or the lighter ATM machine when he sustained injury.
Dr Panjratan also noted that the applicant’s employment was terminated a day or two later and he found another job straightaway and worked as a temporary security guard for about six months as a temporary job. He noted the security job involved work as a security guard at various shopping centres and although he had a back problem the work was not physical and involved standing and walking about. Due to financial pressure he continued to work for the company for 1 ½ years. However it was not clear from Dr Panjratan’s history whether the period of 1 ½ years work was for a security company or for an ATM company.
Dr Panjratan noted that the applicant stopped working not only because of the subject injury to the back but also because of injuries to both arms in the unrelated subsequent employment.
Dr Panjratan also noted that “although he has not worked for nearly 2 years now he says his back has not improved”.
Dr Panjratan recorded the present condition as constant lower back pain with shooting pain going down the back of the left leg going into the sole of the left foot and the leg pain is their most of the time. He noted the back pain is constant and he is on constant medication.
Dr Panjratan noted:
“when queried why this should happen 4 ½ years after an injury, he says that he had regular treatment for the first couple of years but no treatment after that. The treatment was completely stopped and everything stopped. The pain got worse. It was at that stage he consulted A/prof Papantoniou who arranged for further imaging and sent him for injections which have really not been helpful.”

Dr Panjratan noted right knee pain, not as much as the left knee, and “altered gait due to multiple pains – knee pain, the stabbing pain in the sole of the foot and left-sided nerve pain. The right sided pain is limited to the right buttock. The stabbing pain is intense and sharp.”
On examination, Dr Panjratan noted pain on either side of the lumbar spine above the iliac crest and initially the left side was worse but now both sides are similar. He noted the applicant was not willing to bend over and he had pain on extension, limited in the same way and left and right lateral flexion was limited as were rotations towards the sides. Straight leg raising in the lying down position on both sides was restricted but in the sitting down position “he could almost do the right leg, extended it completely on the left side slightly less”. He noted the applicant “managed a couple of steps on his heels with difficulty and had difficulty walking on his toes”. Neurological examination was normal.
Dr Panjratan noted medical imaging of 19 February 2016, lumbar MRI, 25 July 2019, lumbar MRI and 8 August 2019 nuclear bone scan.
Dr Panjratan diagnosed mechanical back pain and noted that he “appeared quite fit and healthy” and “he would not do the SLR which was normal in the sitting position” and “he became restricted on back movements which were inconsistent with his general presentation”.
Dr Panjratan was also of the opinion that:
“the mechanism of injury does not seem to be consistent with the diagnosis.
The mechanism of injury occurred 4 ½ years ago and since then he has done different, multiple jobs although he says he has pain all the time, but still managed. He has left his job is because of personal reasons or due to other injuries.”

Dr Panjratan considered that the proposed treatment by Prof Papantoniou of bilateral L4/5 and L5/S1 facet joint injections as well as L5/S1 nucleoplasty was not reasonably necessary. He stated that:
“the rationale is that the pain is not that severe and it is more than likely that he will be worse off. The operation is also not indicated based on the pathology found.”

In his supplementary report dated 23 November 2020, Dr Panjratan repeated the history of injury occurring while moving a heavy ATM machine into a van. He provided further history as to his question to the applicant why the pain should become severe 4 ½ years later:
“For the first 2 years he had physiotherapy and chiropractic treatment, and at the time I saw him he had been referred to A/Prof Peter Papantoniou, Spinal Surgeon, and had five back injections under imaging at a radiology practice. He paid for the last two consultations with A/Prof Papantoniou, as further liability was declined in April 2017.”

Dr Panjratan was of the opinion that there was no radiculopathy on the evidence of the straight leg raising test.
Dr Panjratan noted an MRI report arranged by Prof Papantoniou (not otherwise identified by Dr Panjratan) remained unremarkable at L5/S1 and the nerve itself remained normal in morphology. He referred to the recommendation by the radiologist for an epidural injection at L5/S1. He also noted a bone scan of 8 August 2019 showed only degenerative changes at the facet joints and intervertebral disc at L5/S1. He also reviewed an MRI report dated 15 June 2015 and noted no impingement of the left S1 nerve. Also noted by Dr Panjratan was a lumbar MRI of 10 April 2017 which noted no significant change since the previous examination of February 2016 and persisting minor herniations and minor foraminal stenosis.
Dr Panjratan also noted a lumbar MRI report dated 8 February 2019 in which he noted there was no central canal or foraminal stenosis established and that signs and symptoms may have arisen from mass effect on the thecal sac at L3/4 with lesser contribution from the slightly scarred exiting nerves at the other levels as above.
Dr Panjratan also noted the reports of Dr Gehr and Prof Papantoniou.
Dr Panjratan confirmed his opinion that he did not consider nucleoplasty to be reasonably necessary. He said “the detailed reason for my opinion is that the diagnosis is not established and the x-rays at no stage showed a disc lesion at L5/S1”. He noted the initial
x-rays all showed degenerative lower lumbar discs and “it has been specified there is no radiculopathy”.
In disagreeing with the opinion of Dr Gehr, Dr Panjratan noted that “the problem has been ongoing” and that initial x-rays “did not show anything” nor did the later x-rays and “even the report of A/prof Papantoniou stated the pain was coming from the facet joints, and then a nucleoplasty has been requested”.
At this point it should be noted that the last quoted statement by Dr Panjratan appears to be a misunderstanding of the approach taken by Prof Papantoniou. Prof Papantoniou had diagnosed facet joint pain as being separate to that of signs and symptoms from L4/5 and L5/S1 and had recommended treatment accordingly, that is facet joint injections and nucleoplasty.
Dr Panjratan concluded that:
“Mr Assad was pain focused. At the time of my examination he would not move his legs, and on sitting down, his legs could be extended. Such a patient is not going to improve with any procedure and is best avoided, in fact he is likely to become worse and I would not be surprised if approval is given if the same thing happens. I would not like to see him again.”
In his report dated 18 December 2020, Dr Panjratan noted as to history of injury that at the time the applicant was working as an ATM technician and suffered a back injury while moving an ATM machine which, according to him, required two workers. Dr Panjratan noted reports of imaging being, in the order referred to by Dr Panjratan, lumbar MRI of 19 February 2016, lumbar MRI of 25 July 2019, lumbar MRI of 10 April 2017, lumbar MRI of 19 February 2016, lumbar MRI of 25 July 2019 (again) and nuclear bone scan of 8 August 2019.
Dr Panjratan noted that he was asked to respond to the report of Prof Papantoniou of 7 December 2020. Dr Panjratan confirmed his earlier opinions with reference to the absence from lumbar imaging of confirmation of a problem requiring nucleoplasty at L4/5 and L5/S1.
In relation to the report of Prof Papantoniou dated 17 December 2020, Dr Panjratan noted that:
“the history which Assoc Professor Peter Papantoniou has documented is different to what he told me that he was managing the ATM pushing alone rather than two people. Veracity of this could be only determined by clarifying the facts. That history documented was not provided to me and I cannot verify it. My dictation was contemporaneous and I did not dictate anything of the history later. There was no radicular pain at the time of my examination and he could straight leg raise which he would not do on the lying down position but in the sitting position he could extend his knees completely.”

I note at this point that it was not clear from the history reported by Dr Panjratan as to whether the applicant was lifting and moving the ATM alone. The initial report of 6 January 2020 did not record that the applicant said that he was moving the ATM alone. The supplementary report of 23 November also did not record that the applicant said that he was moving the ATM alone. The further supplementary report of 18 December 2020, that is the report from which the quote in the preceding paragraph is taken, commenced with a history which referred to moving an ATM machine which required two workers. This challenge to the applicant’s veracity was made in the context of the criticism of Prof Papantoniou’s report and defending Dr Panjratan’s opinion. I will return to this aspect of Dr Panjratan’s reasoning below.
Dr Panjratan concluded that it seemed odd that the applicant continued with security work for about 1 ½ years following the subject injury, left because of an arm injury and continued with another security job “which he would have been unable to do with radiculopathy, which was claimed he had at the time. There is no reason for radiculopathy to develop at this point, 4 ½ years later”.
Dr Panjratan in his report of 6 January 2020 noted the findings of the MRI scan report of 19 February 2016. He was of the opinion that the surgery proposed by Prof Papantoniou was not indicated based on the pathology found. He was of the opinion that “the mechanism of injury does not seem to be consistent with the diagnosis”. However he did not otherwise analyse the imaging reports, referring instead to inconsistencies on examination and inconsistency between the mechanism of injury and the diagnosis, the injury occurred four and a half years previously and since then he has done different, multiple jobs although with pain and he left those jobs because of personal reasons or other injuries. He was of the opinion that the proposed surgery was not reasonably necessary for the reason that “the pain is not that severe and it is more than likely that he will be worse off” and “the operation is also not indicated based on the pathology found”. He did not say what that pathology was, other than noting the imaging results.
In his report of 23 November 2020, Dr Panjratan made further detailed comment in relation to the imaging reports. Dr Panjratan was of the opinion that the proposed treatment is not reasonably necessary for the reason that “the diagnosis is not established and the x-rays at no stage showed a disc lesion at L5/S1”.
In his report of 18 December 2020, Dr Panjratan commented upon the report of
Prof Papantoniou dated 7 December 2020. Dr Panjratan again commented upon the veracity of the applicant, in this report with relation to Prof Papantoniou’s history of two persons moving the ATM while Dr Panjratan recorded that he moved the ATM alone. He also confirmed his findings on examination in relation to no radicular findings. He challenged the findings of Prof Papantoniou as Prof Papantoniou’s findings could not be correlated to the original problem because the applicant continued working as a security guard and “with the pain and disability which would be associated with ongoing work as a security guard, he would not be able to manage which he managed for 1 ½ years”. In my view, this is speculative. The applicant was consistent in complaining of ongoing pain and it was speculative for Dr Panjratan to assume what the applicant could or could not manage in the performance of work duties, what those duties were and how he managed to persevere with that continuing pain.

Dr Bentivoglio

Dr Bentivoglio was qualified by the respondent’s solicitors and provided a medicolegal report dated 27 April 2021.
Dr Bentivoglio recorded a history of injury at work on 17 April 2015 when the applicant was lifting an ATM into a van and he developed low back pain.
Dr Bentivoglio reviewed the imaging studies commencing with the MRI scan of 15 June 2015. He noted that it showed disc changes at L3/4, L4/5 and L5/S1 and there was no nerve compression. He noted the follow-up MRI scan on 19 February 2016, done because of persistent low back pain, which showed disc bulges at L3/4 and L4/5, no canal stenosis, and mild L3/4 and L4/5 foraminal stenosis. He noted a further MRI scan of the lumbar spine on 10 April 2017 which was basically unchanged from the MRI scan in 2016.
Dr Bentivoglio noted a repeat MRI scan on 8 February 2019 because of low back pain going into both legs, the left greater than the right. He noted no acute disc protrusion, a small spinal canal, especially at L3/4, and no foraminal stenosis.
A further repeat MRI scan on 1 April 2020 was noted as showing minor L3/4 canal stenosis with associated epidural lipomatosis, no foraminal stenosis and no nerve root compression. Dr Bentivoglio was of the opinion that the internal architecture of the discs looked normal and there were no annular tears but there was mild disc bulge at L4/5 and L5/S1 and no evidence of spinal canal stenosis at other levels.
On examination, Dr Bentivoglio noted decreased back movements, normal straight leg raising, normal tone and power in all the limbs, symmetrical reflexes and no evidence of any radiculopathy.

Dr Bentivoglio diagnosed mechanical axial back pain, which may be discogenic in nature but no evidence of radiculopathy. Dr Bentivoglio was of the opinion that the mechanical axial back pain “has proved unresponsive to any major conservative treatment.”
On examination, Dr Bentivoglio noted “decreased back movements”, with normal straight leg raising, normal tone and power in the limbs, symmetrical reflexes and no evidence of any radiculopathy.
Dr Bentivoglio believed that the recommended surgery is premature. He stated “he has controlled his pain with conservative treatment for the last five years and is on rather mild medication for this”. He thought a pain clinic review would be helpful psychologically and for assessment of spinal stimulation and he also recommended discography.
However, Dr Bentivoglio also recorded in his report that “on direct questioning now, he says he has low back pain and he rates that as 7/10 and his leg pain, which is intermittent and when he has the pain is 10/10”. He also summarised the applicant’s treatment from 2016 to 2021 as involving “physiotherapy, which afforded him temporary benefit, chiropractic treatment, if anything made him worse, cortisone injections were no help and he was taking medication Tramal, 50 mg twice a day and Panadol, one four times a day.” This history of pain and summary of treatment is somewhat at odds with Dr Bentivoglio’s opinion that the applicant has controlled his pain with conservative treatment for the last five years. This opinion was a premise for Dr Bentivoglio’s conclusion that the proposed surgery is premature.

Findings and reasons

The applicant in his statement did not refer to a specific incident on 17 April 2015. However, it is not disputed that the applicant sustained a frank injury to the back on 17 April 2015 whilst lifting and moving a heavy ATM machine.
He stated that in his employment with the respondent he was doing the work of installing and maintaining ATM machines and these were mostly “standalone” machines which are installed in petrol stations. He said these machines could weigh up to 450 kg or they could be “as light as around 300 kg”.
The respondent’s submissions in summary referred to a lack of correlation between the findings of the various MRI scans and the cause of the applicant’s pain and the requirement for surgery.
I do not accept these submissions. The contemporaneous documents in 2015 and 2016 indicate the commencement of symptoms, which were then correlated by Prof Papantoniou with MRI scans and imaging.
The injury management plan of May 2015 and the diagnosis by Dr Lim in February 2016 both noted lower back pain and radiculopathy.
In June 2015 Dr Breit recorded that the applicant’s present complaints were pain across the low back occasionally radiating up a little and some posterolateral pain going down to the left foot more than the right but no pins and needles. Dr Breit was unsure whether the bulges at L3/4, L4/5 and L5/1 noted on the MRI scan report of 15 June 2015 were pre-existing. However Dr Breit did not comment on whether or not he thought those bulges were related to the incident at work on 17 April 2015.
Prof Papantoniou in his report of 11 May 2016 reviewed the MRI of 19 February 2016 and noted that it demonstrated mild disc bulges at L4/5 and L5/S1 with L5/S1 being slightly more bulged to the left and there did not appear to be any nerve root impingement.
Prof Papantoniou attributed the identified disc bulges at L5/S1 and L4/5 wholly to the work injury.
Prof Papantoniou, in my view, in his report of 10 April 2019, and later confirmed in his report of 7 December 2020, accepted the applicant’s account of ongoing lower back pain with symptoms into his legs, which he related to the subject work injury. I accept
Prof Papantoniou’s opinion in this regard as he examined and treated the applicant in 2016 and 2019 and had regard to MRI scans of 19 February 2016 and 8 February 2019 in support of his opinion.
The respondent submitted that Dr Panjratan reviewed the various MRI scans and found no pathology that would explain the applicant’s symptoms. The respondent also submitted that Dr Panjratan was of the opinion that the applicant is pain focused and he will not improve with any procedure and he is likely to become worse. In my view, Dr Panjratan’s opinion as to a lack of pathology with respect to the MRI scans is outweighed by the opinions of
Prof Papantoniou and Dr Gehr, the former having examined and treated the applicant on a number of occasions over the years. Dr Panjratan’s opinion is also not supported by
Dr Bentivoglio, who found that the applicant’s symptoms were discogenic in origin, although not with radiculopathy. Dr Panjratan’s view that the applicant was pain focused, and hence the proposed surgery was unlikely to have a good outcome, was also an opinion that was not held by Prof Papantoniou, Dr Gehr and Dr Bentivoglio. The latter did not rule out surgery, rather he thought the applicant’s symptoms should be further investigated. I do not accept the respondent’s submissions in relation to Dr Panjratan.
Additionally, on the evidence before me, it was only the opinion of Dr Panjratan which questioned the veracity of the applicant’s history and presentation. This approach then formed the foundation of the rejection of the opinion of Prof Papantoniou by Dr Panjratan. Although there was an analysis of the imaging reports in Dr Panjratan’s report of 23 November 2020, this was done after the fact of his earlier report which challenged the applicant’s veracity and presentation and did not provide a detailed analysis of the pathology. Thereafter he questioned the applicant’s veracity and presentation in his report of 18 December 2020. I am not persuaded to accept the opinion of Dr Panjratan when the weight of the medical evidence accepted the applicant’s history of symptoms and presentation. I do not accept Dr Panjratan’s opinion as to the nature of the pathology shown on the imaging reports. In my view, Dr Panjratan did not accept the veracity of the applicant’s history and presentation.
Dr Bentivoglio did not query the applicant’s veracity and presentation. Dr Bentivoglio diagnosed the applicant as having mechanical axial back pain which was discogenic in origin, with no radiculopathy. In my view, his opinion was not opposed to the opinions of
Prof Papantoniou and Dr Gehr, at least insofar as he did not disagree with the disc origins of the applicant’s symptoms. The issue for Dr Bentivoglio is that he believed that the applicant should have a discogram to identify the pain generator in his back, whether it is L3/4, L4/5 and L5/S1, in the absence of radiculopathy.
The underlying reason for Dr Bentivoglio in recommending a discogram is that “the worst disc changes are at the L3/4 level where there is some spinal canal stenosis” and that “he has not had any evidence of disc changes on his most recent MRI scan”. The last quoted statement should be read having regard to his review of the MRI scan of 1 April 2020 which he noted showed a minor L3/4 canal stenosis with associated epidural lipomatosis, no foraminal stenosis and no nerve root compression. He was of the opinion that there were no annular tears but there was mild disc bulge at L4/5 and L5/S1 but no evidence of spinal canal stenosis at other levels.
Prof Papantoniou, in his progress report of 16 June 2020, noted that the applicant’s “pain is worse” and that “he continued to complain of a central and bilateral lower back pain which is constant in nature and fluctuant in intensity” and “it is present day and night and causes him sleep disturbance every night” and “the only time he can get a reasonable amount of sleep is if he takes analgesia”.
Prof Papantoniou in his report of 7 December 2020 noted that the applicant continues to complain of a central and bilateral lower back pain from L4 down to S1. He noted that the pain from this region radiates into the left buttock and the left S1 distribution more intensely than the left L5 distribution. He also noted radiating pain into the right buttock in the right L5 distribution more than the right S1 distribution. He noted that at present it appears that the left S1 is worse and on the right the L5 is worse and there is a combination of pain and paraesthesia. He noted that all the pains are present day and night and cause some sleep disturbance.
On examination, Prof Papantoniou noted forward flexion reproduced lower back pain at the L5/S1 level and lateral tilts to the right reproduced a left-sided L4/5 lower back pain and lateral tilts to the left reproduced a right sided L4/5 lower back pain. On review of the MRI and CT scans from 1 April 2020, Prof Papantoniou noted that “this demonstrated L4/5 and L5/S1 annular tears and central disc bulges” and “at L3/4 and L4/5 there was mild disc desiccation”. Prof Papantoniou was of the opinion that the development of the mild disc desiccation was in keeping with the progression of the pathology.
Prof Papantoniou is the treating surgeon and has reviewed and consulted with the applicant on multiple occasions commencing with a consultation in May 2016 and recommencing in April 2019 and continuing until review in December 2020. In my view, the reports of
Prof Papantoniou show that the applicant’s pain is worsening. I also regard Prof Papantoniou as taking a more detailed examination and findings than Dr Bentivoglio. Prof Papantoniou had the benefit of multiple reviews, examinations and updated histories while Dr Bentivoglio was working within the constraints of a single consultation which included a somewhat lengthy history.
In my view, the opinion of Dr Gehr in his reports of 30 July 2020 and 16 January 2021 supports that of Prof Papantoniou. Dr Gehr also took a history that the applicant’s pain and stiffness was steadily getting worse. Dr Gehr took the history that the pain in the lumbar spine was present all the time and radiates down to the left foot and also there was pain down the right leg, but the pain is mainly on the left. Dr Gehr noted that the applicant said that the pain in his back averages around seven and the pain in the left leg is a lot worse and feels as if someone is stabbing him and that would average around nine. Dr Gehr summarised his examination findings as “lumbar spine spasm, dysmetria, positive nerve tension test on the left side and hyper brisk deep tendon reflexes over the left knee”.
In my view, Prof Papantoniou provided detailed reasoning in terms of the history of pain and symptoms, the findings on examination which correlated with his view of the findings of the MRI on 1 April 2020. Dr Bentivoglio did not have the same interpretation of the MRI of 1 April 2020 nor did he have the same findings on examination. I am persuaded to accept the opinion and findings of Prof Papantoniou in this regard as he had the benefit of a number of examinations, consultations and reviews and was able to take a detailed history of pain and symptoms and make detailed corroborating findings on examination.
In addition to the history of injury with worsening pain and findings on examination, in my view Dr Gehr found support in the MRI of the lumbar spine dated one April 2020 and
Prof Papantoniou’s treatment opinion dated 10 April 2019 in respect of the MRI of 8 February 2019. Dr Gehr noted that the findings of these MRIs supported the history and his examination findings of 30 July 2020. In particular, he noted left L4 radiculosis, also at L3/L4, and at L4/5 and annular disc bulge rubbing on the exiting L4 nerve roots. He also noted the opinion of Prof Papantoniou of a demonstrated L5/S1 annular tear with central disc bulge and at L4/5 a disc bulge mainly on the left impinging the left sub articular region and lateral recess and that disc bulge was also impinging on the descending nerve roots. In my view, the opinion of Dr Gehr sufficiently explains his agreement with the proposed nucleoplasty at L5/S1, and in his subsequent report of 16 January 2021 with the proposed nucleoplasty at L4/5, as it is based upon these MRI findings. I do not accept the submission that Dr Gehr has not explained his recommendation or agreement with the proposed surgery at L4/5 in his report of 16 January 2021 as in my view should be read with reference to his earlier report.
I prefer the opinions of Prof Papantoniou and Dr Gehr to that of Dr Bentivoglio.
The respondent also submitted that no explanation was provided by Prof Papantoniou for the change in his recommendation for surgery from a single level at L5/S1 to his later recommendation of nucleoplasty at L4/5 and L5/S1.
I do not accept this submission. Prof Papantoniou on his initial consultation in May 2016 diagnosed disc injury at L4/5 and L5/S1 and he has maintained that opinion since that time. Having regard to his reports as a whole, in my view he extended the recommendation, of nucleoplasty at L5/S1 to L4/5 as well, on findings of L4/5 symptoms and further review of MRI scans. In my view, this is demonstrated in his report of December 2020 when
Prof Papantoniou identified on examination L4/5 symptoms. He referred to pathology at L4/5 which he found on the MRI of 1 April 2020. Initially, where the diagnosis of injury to both L4/5 and L5/S1 has been made by Prof Papantoniou since 2016, with findings of symptoms arising from injury at L5/S1 initially, then Prof Papantoniou’s recommendation was for nucleoplasty at L5/S1. Once symptoms arising from L4/5 were identified and considered by by Prof Papantoniou, his recommendation for nucleoplasty changed to L4/5 and L5/S1. I infer that Prof Papantoniou changed his recommendation in this regard for the same reason that he made the initial recommendation for nucleoplasty at L5/S1, that is for treatment of pain and symptoms arising from L4/5. Indeed, this is the stated reason by Prof Papantoniou for the proposed surgery at L4/5 and L5/S1.
I accept the opinion of Prof Papantoniou that the pathology identified at L5/S1 and L4/5, for which he has proposed nucleoplasties at both levels, has been sustained as a result of the injury on 17 April 2015.
The reports of Prof Papantoniou and Dr Gehr both expressly address the criteria of reasonableness as discussed in Rose v Health Commission (NSW)[1] (Rose) and as outlined in Diab v NRMA Ltd[2] (Diab). Prof Papantoniou was of the opinion that the proposed surgery is an appropriate treatment for the identified pathology on imaging, which is widely undertaken around the world. Dr Gehr thought it was appropriate as the applicant has exhausted non-operative treatment options. Dr Bentivoglio thought it was premature, as was of the opinion further investigation to identify the source of pain was required. I have outlined my reasons above for preferring the opinions of Prof Papantoniou and Dr Gehr.
[1] (1986) 2 NSWCCR 32
[2] [2014] NSWWCCPD 72 at [88].
As for alternative treatment, Prof Papantoniou was of the opinion that non-operative management has been ineffective for five years. Dr Bentivoglio thought that an alternative would be “some pain clinic management” and “consideration for spinal stimulation may be worthwhile”. This was based on an understanding of the applicant having “controlled his pain with conservative treatment for the last five years”. This is not supported by the history of pain and treatment taken by Prof Papantoniou and Dr Gehr, which I accept and prefer. In any event, the views of Prof Papantoniou and Dr Bentivoglio are not necessarily mutually exclusive. That is, both possible treatment modalities can be seen to belong to a range of treatments which may be reasonably necessary[3].
[3] Diab at [86]
The respondent submitted that an alternative treatment recommendation was provided by the reporting radiologist in the MRI scan report of 1 April 2020. However, the recommendation in my view was a qualified one, where it was said that “given the potential benefits and adverse effects of prolonged steroid use in a patient of this age, if intervention is still being considered after careful assessment of the patient’s clinical profile, one final injection of epidural at L3/L4 can be trialled”. The radiologist continued with the comment “for long-term management, neurosurgical opinion would still be a consideration”. The report was not addressed to Prof Papantoniou, although he noted the MRI scan of 1 April 2020 in his report of 7 December 2020. I do not accept this submission. Prof Papantoniou was of the opinion that conservative treatment options had been ineffective.
Although the respondent noted that the proposed surgery is significant in terms of cost, the cost itself was not disputed. Prof Papantoniou provided an itemized request for approval with reference to specific item numbers in respect of the proposed L4/5 procedure. Dr Gehr estimated the cost for the L5/S1 procedure to be $15,000 to $20,000. Dr Bentivoglio estimated that the cost of the treatment is in the order of $40,000 - $50,000.
In terms of the actual or potential effectiveness of the proposed treatment, Prof Papantoniou was of the opinion that the two proposed procedures (L4/5 and L5/S1 nucleoplasties) “will improve his pain profile and alleviate some of the consequences of his injury” and
Prof Papantoniou expected that the applicant “will have some amount of improvement in his functional capacity and potentially may avoid, at least temporarily, a three-level spinal fusion”. Dr Gehr was of the opinion that the proposed L5/S1 surgery, which he later endorsed for L4/5, would maintain the applicant’s state of health and “slow or prevent the deterioration of his problem” and that it has “a significant potential to alleviate the consequences of his injury”. As noted above, I prefer the opinions of Prof Papantoniou and Dr Gehr to that of
Dr Bentivoglio in this regard. Dr Bentivoglio thought the proposed surgery was premature, pending further investigation as to the source of the problem, but I have accepted the findings and explanation of Prof Papantoniou as to the signs and symptoms that he found were caused by pathology at L4/5 and L5/S1.
The respondent did not dispute that the proposed surgery is accepted by the medical profession. Dr Bentivoglio did not raise this as an issue. The proposed treatment was noted by Prof Papantoniou as being an accepted form of treatment. Dr Gehr was of the opinion that it “is accepted by the medical profession in Australia as orthodox, standard and accepted treatment.”
I find that the surgical procedures proposed by Prof Papantoniou, an L4/5 nucleoplasty, and on a separate (prior or subsequent) occasion, an L5/S1 nucleoplasty, are reasonably necessary as a result of the injury on 17 April 2015.

[2021] NSWPIC 184

16 June 2021