Badreddine v Coles Supermarkets Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Badreddine v Coles Supermarkets Australia Pty Ltd [2021] NSWPIC 241
APPLICANT:	Bilal Badreddine
RESPONDENT:	Coles Supermarkets Australia Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	14 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Application for a section 60(5) declaration that proposed surgery reasonably necessary; 2017 back injury admitted; surgery recommended as other alternatives allegedly failed; applicant presented to medical experts using crutches; surveillance video over 4 years lodged; 500 pages of GP clinical notes lodged; Held- proposer of surgery unaware of contents of clinical notes demonstrating continual complaints of back pain over a decade prior to date of injury and earlier imaging; proposer unaware that applicant presentation to him on crutches in marked contrast to his normal activities as displayed in the video; medico-legal expert similarly unaware of content of clinical notes and unable to comment on surveillance as video not made available; applicant’s credit in question; Diab v NRMA Ltd applied; proposed surgery not shown to be appropriate; alternative treatment not followed; proposed surgery unlikely to actually or potentially be effective; application declined; award respondent.
DETERMINATIONS MADE:	1. The application is declined. 2. There is an award in favour of the respondent.

STATEMENT OF REASONS

BACKGROUND

Bilal Badreddine, the applicant brings an application for a declaration pursuant to s 60(5) of the Workers Compensation Act 1987 (the 1987 Act) that proposed surgery to his lumbar spine is reasonably necessary.
Dispute notices were issued and proceedings were duly commenced.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:

(a) Is the proposed surgery reasonably necessary?

PROCEDURE BEFORE THE COMMISSION

This matter was heard at conciliation and arbitration by Modron video link on 1 June 2021. The applicant was represented by Mr Luke Morgan of counsel instructed by Mr Nayven Taouk from Messrs Law Partners. The respondent was represented by Mr David Saul of counsel instructed by Ms Miriam Browne from Messrs Turks Legal. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

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

(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Application to Admit Late Documents (ALD) and attached documents from the application;
(c)    Reply and attached documents, and
(d)    four surveillance videos.

Oral Evidence

No application was made in relation to oral evidence.

FINDINGS AND REASONS

It is common ground that Mr Badreddine suffered an injury to his lumbar spine on 23 November 2017 when, in the course of his duties as a baker for the respondent, he slipped and fell on a wet surface.

Mr Badreddine’s statement of 29 August 2019

Mr Badreddine made extensive statements on 29 August 2019 and 18 March 2021. It is clear that a great deal of care has been used in their preparation as they contain, in chronological order, all the modalities of treatment that he has undergone for not only his back condition but for other conditions. I infer that Mr Badreddine had assistance in compiling these statements.
Mr Badreddine was born in 1978 in Saudi Arabia and came to Australia in 1998, having spent some time in Lebanon. He obtained his qualifications as a baker in 2004 and commenced work for the respondent in 2011. Before the subject accident he had been diagnosed with bilateral carpal tunnel syndrome and he had come to surgery on his left wrist on 24 September 2018. In July 2017 also he was diagnosed with bilateral shoulder bursitis, tendonitis and bilateral epicondylitis.
He described his injury as a fall on a wet surface impacting his lower back and coccyx.
Mr Badreddine’s left knee also hit a stock trolley and twisted. He was taken to Bankstown Medical Centre and saw “Coles WorkCover doctor,” Dr Antoun. He was given crutches and later consulted his own GP Dr Alsayed in Lakemba. At the time Mr Badreddine said that his left knee was the worst problem and treatment was focussed on it.
An MRI scan on 24 November 2017 showed a medial meniscal tear and the following day there was an x-ray of the lumbar spine and coccyx which did not reveal any abnormalities.
On 9 December 2017 an MRI scan was undertaken of the lumbar spine and the left foot.
Dr Alsayed wrote a number of reports on 3 January 2018 to medical professionals. In those emails he set out a number of conditions and referred to a scheme called the “Enhanced Primary Care Initiative” promoted apparently by the Commonwealth Government. Dr Alsayed noted that the aim was to improve coordination of care and provide a more systematic approach to “the care of patients with chronic conditions and complex care needs.” The conditions named were those mentioned by Mr Badreddine at the outset of his statement, that is to say:
·        Carpal tunnel syndrome (bilateral)
·        Epicondylitis - lateral (tennis elbow) (bilateral)
·        Subdeltoid bursitis (bilateral)
·        Subacromial bursitis (bilateral)
·        Superspinatus tendonitis (bilateral)
·        Varicose veins - leg (right)
·        Carpal tunnel syndrome
These conditions were said to have commenced in 2017. The subject injury was also mentioned as “meniscal tear (left)” which occurred on 28 November 2017.
These emails were addressed to Mr Medhat Metry, Psychologist, Dr Ishrat Ali, Consultant Psychiatrist, and Dr Vijay Maniam “Orthopaedic”.
From Dr Ali and Mr Metry, Dr Alsayed sought “opinion and Management of adjustment disorder started after work injury”.
From Dr Maniam, Dr Alsayed sought an opinion and Management of the back, left hip, left ankle and “which started post a work injury”. The same complaints were set out in each letter listed above.
On 23 January 2018, Dr Maniam saw Mr Badreddine regarding injuries to the left knee and the lumbar spine. A lumbar spine MRI of 9 December 2017 showed at L4/5 dehydration and disc bulge. Dr Maniam noted that on presentation Mr Badreddine “walked with a limp and was supported by crutches. He was in pain.” Dr Maniam said:[1]
“The problems in the lumbar spine are due to an intervertebral disc bulge at L4/5 encroaching on the exit neural canals. This may contribute to his current symptoms, however the lower limb neurological signs are intact despite the appearances of contact with the exiting L4 nerve root on the right.”
[1] ARD page 34.
On 7 June 2018 Mr Badreddine underwent a platelet rich plasma injection with Dr Moses. This was in relation to the left knee, it would appear.[2]
[2] ARD page 149.
Dr Alsayed also referred Mr Badreddine to Dr Daniel Rahme, Orthopaedic Surgeon.
Dr Rahme reported on 2 August 2018 that Mr Badreddine had been utilising a crutch for his painful left knee and that he needed to be “off the crutch” as carpal tunnel surgery to the left wrist was then contemplated. Dr Rahme noted that “there was no role for surgical intervention with regard to the left knee”[3].
[3] ARD page 143.
On 7 February 2019 Dr Rahme noted that an MRI of the left knee demonstrated a stable degenerative tear of the medial meniscus and that Dr Rahme again recommended non-operative treatment[4].
[4] ARD page 55.
On 4 July 2019 Dr Rahme indicated that Mr Badreddine was then nine months post left carpal tunnel decompression. At that time, a decompression procedure was anticipated for the right wrist. Dr Rahme noted complaints of persistent lower back pain “and left sided sciatica.”
Dr Badreddine did not see Dr Rahme again until 10 June 2020, when Dr Rahme noted complaints of persistent trouble with the left knee[5].
[5] ARD page 151.
On 3 July 2020 Dr Rahme recommended surgery on the left knee following an updated MRI scan which demonstrated a complex medial meniscus tear with a displaced undersurface flap component in the medial gutter[6]. Dr Rahme sought approval from the insurer to undertake that surgery. During the hearing Mr Morgan advised that such liability had been accepted by the insurer but that the surgery had not taken place. He was unable to advise why that was so.
[6] ARD page 72.
The applicant was also treated by Dr Andrew Porteous, Occupational Physician, who on 4 February 2019 took a history that Mr Badreddine was using two crutches when he was away from home or mobilising. Dr Porteous noted that Mr Badreddine attended using a crutch under the left arm[7].
[7] ARD page 50.
Dr Porteous’ focus appeared to be on the left knee. He noted an MRI scan of 2 January 2019 which showed extensive medial meniscal tear, suggestions of damage in the posterior cruciate ligament, evidence of patello chondral fissure, and a flap. Dr Porteous diagnosed a musculo-ligamentous soft tissue sprain to the lumbar spine with aggravation of mild underlying probable degenerative change. He noted on two occasions that left knee surgery was likely to be required[8]. Whilst taking a history of Mr Badreddine’s past medical issues, Dr Porteous noted the bilateral carpal tunnel syndrome, the right and left shoulder symptoms, the epicondylitis that still remained in the right elbow and a varicose veins condition.
[8] ARD page 52 – 53.
The psychiatrist Dr Ali reported on 9 February 2018[9] that Mr Badreddine suffered from a case of adjustment disorder with depression which had become chronic as a result of the injuries he received.
[9] ARD page 36.
In his statement of 29 August 2019 Mr Badreddine described his earlier health problems in 2017 with his bilateral carpal tunnel condition and bilateral shoulder bursitis and epicondylitis together with his varicose veins. He did not mention the extensive history of back complaints throughout the clinical notes of Dr Alsayed.
No report was lodged from Mr Medhat Metry whom Mr Badreddine said he saw weekly in 2018, and whom the clinical notes show was treating the applicant in December 2007.
Mr Badreddine said that he was given crutches when he first saw Dr Antoun on the date of injury. He said at [33] that on 18 April 2018 Dr Moses advised him to slowly stop using his crutches. The applicant described the treatment for his knee, left foot, ankle and varicose veins from May to July 2018 when he returned to work on restricted duties. He worked until 24 September 2018 when he underwent the surgery for his existing left hand carpal tunnel syndrome.
Mr Badreddine described treatment earlier in 2019 for his left knee and left foot.
Mr Badreddine said that from in and around January 2020 he consulted an exercise physiologist at “A2Z Medical Centre” regarding a problem to his lower back and left leg.

Mr Badreddine’s second statement of 18 March 2021

Mr Badreddine made a supplementary statement dated 18 March 2021 in which he expanded on his ongoing treatment. He said that in May 2019 he complained to Dr Alsayed about severe pain in his lower back. An x-ray was taken on 17 May 2019 followed by a CT scan on 22 May 2019.
Mr Badreddine said that on 16 August 2019 he first saw Dr Bisham Singh and complained that his severe lower back pain with radiation down the left leg had not improved at all with physiotherapy.
He underwent a CT guided steroid injection on 27 August 2019 in the lower back which was unsuccessful in alleviating his pain. A second injection followed but did not provide any long lasting improvement.
An x-ray and MRI scan were taken on 21 October 2019, and on 29 November 2019 Dr Singh provided a referral for the exercise physiology. Mr Badreddine said that from January 2020 he consulted an exercise physiologist at the A2Z Medical Centre.
Mr Badreddine said he found these sessions helpful in managing his symptoms but they were only permitted for five sessions before they were denied by the insurer.
On 26 February 2020 the applicant told Mr Singh that he wanted to continue with the exercise physiology and it would appear that that recommendation was made, as he said at [22] that the exercise physiology sessions were helpful.
Mr Badreddine then discussed his knee. He explained that in June 2020 an MRI scan was taken of the left knee which showed pathology and that Dr Rahme recommended surgery by way of a left knee arthroscopy. This was discussed with Dr Singh on 18 June 2020.
Mr Badreddine said:[10]
“……Dr Singh agreed with this treatment option and noted that the left knee
surgery would likely improve my lower back symptoms as it would improve my gait.
[10] ARD page 11 [25].
Dr Singh advised I return to see him after I had undergone my left knee surgery.”
Further imaging was taken of the lumbar spine on 14 July 2020 and 21 July 2020. On 29 July 2020 Mr Badreddine again saw Dr Singh, complaining that his lower back was getting worse when he was standing or walking. Surgery was then recommended.
Mr Badreddine explained that throughout the remainder of 2020 and through 2021 he suffered from aching and sharp pain in his lower back and left leg. The pain was constant in his back causing sleeping difficulties. He struggled to bend his left leg or lower back without severely aggravating his pain.
In listing his disabilities at paragraph [31], he said that he was required to use crutches for his left side and that he suffered aggravation to the pain in his lower back when standing for extended periods, driving, bending, amongst other things. He related that he suffered from stress, frustration, depression, mood swings, anger bouts, loss of self- esteem and loss of confidence amongst the disabilities that he listed.
In regard to the current dispute Mr Badreddine said amongst other things that Dr Singh said that fusion surgery was the treatment most likely to give him sustained relief. He also referred to the opinion of Dr Eugene Gehr, Orthopaedic Surgeon of 1 March 2021 that he was suffering from persistent lower back pain radiating into his left leg, “despite exhausting all conservative treatment options.” This opinion, Mr Badreddine said at [35], meant that the proposed surgery was necessary for “providing me with relief to my symptoms.”
Mr Badreddine said he too was of the view that the surgery was necessary as he had exhausted all conservative treatment options. He said that while he was nervous about the procedure he was hopeful for a better life.

Mr Badreddine’s third statement of 30 April 2021

This statement was an attempt by Mr Badreddine to resolve a number of issues that the respondent’s material had raised. He referred to the series of surveillance reports covering the years 2017 to 2021. He said:[11]
“.. I will contextualise the surveillance footage and reiterate how I continue to suffer from ongoing pain at my lower back, coccyx, left hip, left knee, left ankle and left foot despite being seen out in public.”
[11] ALD page 1.
Mr Badreddine explained that when he was filmed doing the various activities depicted in 2017, such as bending to strap his children into their car seats he nonetheless did so slowly because of pain and he was also medicated. In all the activity he was seen doing, he was under this medication.
Mr Badreddine gave an explanation for many of the scenes in which he was filmed, which also related to the medication he was taking. He said that whilst he was undertaking the various activities he was filmed doing, he was suffering pain and indeed that is why he used the shopping trolley he was seen pushing with his two children inside, as it acted as a “walking aid.” He said that he was seen often in the shops because his back pain and left leg pain worsened when he was on his feet for extended periods of time, and he had to do short trips. He explained that although he was seen carrying shopping bags, he was careful not to overload them and thus put pressure on his lower back. He said that when he was seen carrying a red camping chair, an orange blanket, a cool bag and a green canvas bag he was only doing so until he gave the objects to his wife after he had carried them up the stairs.
With regard to the 2019 surveillance footage Mr Badreddine noted that he was not using crutches. He said he was gradually beginning to stop using crutches at that time, and he kept one inside his car in case he needed it. He said he had a disability parking permit which enabled him to park close to the shops to reduce demand and walking required. He agreed that he was depicted picking up his children, and that as he bent down to put two shopping bags on the floor a study of photographs time stamped 3:10 and 3:12 would reveal that he was favouring his right leg. He again repeated that he uses the shopping trolley as means to balance himself. He said that although he was seen putting his grocery shopping in his car, it was nonetheless has responsibility to be careful not to purchase too many bags, as otherwise to be placed too much pressure on his lower back.
Mr Badreddine referred to footage showing him walking slowly, “limping,” across a car park, and having to use the handrail to go up and down the stairs. This, he said, illustrated his ongoing pain and weakness in his “lower back, left hip, left knee, left ankle and left foot.”
The surveillance report of an observation later in the day was incorrect, as it suggested that Mr Badreddine had carried a 10 kg bag of potatoes, whereas he argued that it was a 5 kg bag.
Mr Badreddine continued to explain the various scenes that he had been depicted in over the next two years, using the same technique of acknowledging the existence of the footage but making subjective interpretations of why he behaved in the way that the footage revealed. These interpretations involved assertions that he was suffering pain from his lower back and that a close examination of the video would show that he was moving slowly and carefully as a result.

Medical Assessment Certificate (MAC)

Mr Badreddine brought an action in Matter no. 4483/19 for lump sum compensation. This application was unsuccessful because the MAC issued on 11 December 2019 found that
Mr Badreddine suffered from 7% WPI in relation to his lumbar spine with a further 2% in relation to the left knee giving an uncompensable impairment of 9%.
The Approved Medical Specialist (AMS) made no deduction for any pre-existing condition pursuant to s 323 of the 1998 Act, as he took no history of the prior back complaints that were shown in the clinical notes.
The AMS noted that on examination Mr Badreddine utilised a crutch held on the left side, and that he also wore a brace on his left knee and left ankle. Dr Meakin stated:[12]
“He initially has a symmetrical gait, but going up a step in the office at the time of today’s examination he notes significant discomfort in his left knee as well as over the anterior aspect of the left ankle and in his lumbar back. At the end of a 10 metre walk, the applicant appears to be limping”.
[12] ARD page 62.
The AMS took a consistent history of the injury and subsequent treatment by the various medical practitioners discussed above. He took a history under “Present symptoms” that
Mr Badreddine used a walking stick to assist with both his back and his left knee.
The Medical Assessor examined investigations available at that time. He said in his Summary:[13]
“The injury to the low back is centred on the L4/5 disc with potential compression of the L4 nerve root on the right side. His symptoms, however, are significantly left sided…”
[13] ARD page 65.
As to consistency of presentation, the Medical Assessor noted:
“The applicant was helpful at the time of his physical examination and history taking here today. He appeared relaxed and eager to assist.”

The AMS had available the first of a series of reports by Dr Robert Breit dated 20 June 2019. The AMS noted that Mr Badreddine was able to remove his shoes, and his braces and his lower garments without difficulty, in contrast to Dr Breit’s observations. The AMS also noted that Dr Breit said the applicant was totally unable to walk without a crutch whereas the AMS watched him walk between two surgeries without a crutch.
Further, Dr Breit noted that there were restrictions in the right and left shoulder movement of 50° of elevation on either side whereas with the AMS, the applicant was able to demonstrate a full range of unrestricted pain free motion.
The AMS also had available surveillance footage from 21 August 2019 and 23 August 2019. He summarised the content of those videos and noted that Mr Badreddine walked with a slight limp but was able to move freely around a vehicle in the car park. Mr Badreddine was also noted to do other unremarkable activities such as shopping and carrying various bags. The AMS did note that the applicant did not use a crutch, although he noted one being placed in the back seat of the car. He said in summary:[14]
“The subject of this DVD is certainly not relying on a crutch to mobilise. The subject of the DVD is significantly overweight. I am able to draw any other clinical conclusions from the video”.
[14] ARD page 69.

Dr Singh

As indicated above it was Dr Bisham Singh who recommended the surgery.
Dr Singh wrote a number of reports. His earliest was 19 August 2019[15] in which he noted that Mr Badreddine walked in with some crutches and had an antalgic gait. The complaint was of lower back pain with radiation down the left leg in the L5 distribution. It had not improved over the last two years and an L4/5 steroid injection was suggested. Dr Singh noted that the sitting and standing tolerances were “not too bad”.
[15] ARD page 220.
The next report was on 12 December 2019[16]. Dr Singh noted that an x-ray and MRI scan showed disc bulging at L4/5 which was likely responsible for his symptoms in the back and the leg. He noted that Mr Badreddine wanted to pursue treatment which Dr Singh thought was reasonable.
[16] ARD page 223.
Dr Singh’s next report was dated 9 March 2020 and he noted that Mr Badreddine reported an improvement in his symptoms with the help of exercise physiology - “while he does get some back pain, he is making progress and would like to persist with conservative treatment”[17].
[17] ARD page 224.
On 18 June 2020 Dr Singh reported that an MRI scan had showed a complex meniscal tear in the knee. Dr Singh was in support of a recommended arthroscopic surgery and expressed the hope that this would improve his pain and allow him to manage his back pain better. He said[18]:
“I also expect him to have an improved gait pattern which will also help his lower back. I have asked him to return to see me after he has his knee arthroscopy surgery in the near future”.
[18] ARD page 225.
Dr Singh found on 29 July 2020 that Mr Badreddine’s symptoms “were suggestive of back pain and claudication.” Dr Singh noted that the applicant had trialled exercises and physiotherapy without significant or sustained benefit. Dr Singh recommended that the applicant consider his surgical options. He said:[19]
“….. Given the duration of his symptoms, and the loss of disc height, disc bulge and calcification and foraminal stenosis, L4/5 fusion is more likely to give him sustained relief from symptoms and improve his functional capacity”.
[19] ARD page 75.
Dr Singh thought that without surgical treatment the applicant will be unable to have any improvement in his functional capability.
Dr Singh made no further comment regarding the preferred option of surgery on the knee.
In a report dated 19 August 2020[20] Dr Singh noted that he had not heard from his insurer regarding the progression of his claim, which I assume to be a reference to the recommendation for back surgery. Dr Singh said:
“He is also due to have knee arthroscopy surgery and will contact me once this has been done. ……. Once he has had this progression of his claim, we can schedule surgery for his lumbar spine”.
[20] ARD page 229.
Dr Singh supplied a report to the applicant’s solicitors on 27 November 2020[21]. He took a consistent history of the incident. He noted that Mr Badreddine “walked in with some crutches and had an antalgic gait”. Dr Singh noted a complaint of lower back pain with radiation down the left leg and the L5 distribution about which Dr Singh said “this is more likely secondary to the L4/5 disc herniation seen in the MRI scan in 2017”. He said that without surgery
[21] ARD page 74.
Mr Badreddine would be unable to have any improvement of his functional capability.
At no timed in any of his reports did Dr Singh enquire as to Mr Badreddine’s prior health, and especially about his prior back condition.

Dr Gehr

Mr Badreddine retained the services of Dr Eugene Gehr, Orthopaedic Surgeon as his medico-legal expert. He reported on 8 February 2021. He took a past medical history that
Mr Badreddine had experienced “no previous problems with the cervical spine, thoracic spine, lumbar spine, upper extremities or lower extremities.”
Dr Gehr noted the bilateral carpal tunnel surgery of 2018. He took a consistent history of the accident on 23 November 2017 and subsequent treatment.
On examination Dr Gehr noted that Mr Badreddine “walks with an unsteady gait”.[22] He concluded there was ongoing pain over the left knee for which he had been under the care of an orthopaedic surgeon. He noted that an MRI of the left knee had shown a large knee effusion with a tear of the medial meniscus on an MRI from 2017.
[22] ARD page 81.
Dr Gehr noted that there had been one injection to the left knee and “there are plans to do keyhole surgery by his treating orthopaedic surgeon.”
Dr Gehr noted the recommendation for L4/5 fusion from an anterior and posterior approach. Dr Gehr noted that he had not seen the notes of Dr Singh but commented on a number of imaging scans; the CT of the lumbar spine on 21 July 2020, the x-ray of the lumbar spine dated 14 July 2020 and an MRI of the left knee dated 16 March 2020. At that stage Dr Gehr refrained from giving an opinion as to whether the surgery was reasonably necessary, pending an examination of Dr Singh’s notes[23].
[23] ARD page 84.
In a second report of 1 March 2021 Dr Gehr reported that he had reviewed “the treatment outcome” dated 27 November 2020 from Dr Singh. He noted that the purpose and potential effect of the treatment was to alleviate consequences of injury.
Dr Gehr was asked a series of questions based, it would seem, on the dicta of DP Roche in Diab v NRMA Ltd[24]. He said:
·        the purpose and potential effect of the proposed treatment was to alleviate consequences of injury
·        it is relevant and appropriate for this particular treatment which was accepted in Australia for this pathological condition
·        the applicant had now undergone all effective non-surgical options
·        the effectiveness of the treatment was 60-80%
·        the cost will be between $20,000 - $25,000
[24] [2014] NSWWCCPD 72 (Diab).
Dr Gehr issued a third report on 20 April 2021 in response to a request to comment on
Dr Breit’s opinion, to explain further why the surgery proposed by Dr Singh was “reasonable and necessary” , and to comment on “the surveillance reports.” Dr Gehr was sent all of
Dr Breit’s reports, and all of the reports of surveillance.
Dr Gehr said that whilst Dr Breit found that Mr Badreddine displayed non-organic symptoms and inconsistencies in his presentation, he did not.
As to why the proposed surgery was reasonable and necessary, Dr Gehr repeated his answers of 21 March 2021.
Dr Gehr said that it was impossible for him to comment on the surveillance reports, as they simply showed a series of static pictures. Normally, Dr Gehr said, there was accompanying video which provides a much better idea of movement. It was impossible to determine movement from static pictures, he said.

Dr Robert Breit

As indicated, Dr Robert Breit, Orthopaedic Surgeon, was retained by the respondent as its medico-legal expert. He provided five reports: 20 June 2019, 30 August 2019, 8 July 2020, 28 August 2020, and 8 February 2021.
Dr Breit’s diagnosis following his first assessment was:[25]
“This gentleman’s overall presentation is of the most extraordinary degree of invalidism which is totally inconsistent with the nature of his injury and those physical findings which I was able to determine are inconsistent with organic pathology.
That there is evidence of spondylosis is immaterial, there is an extremely poor correlation between radiology and symptomatology.”
[25] Reply page 506.
Dr Breit was asked to comment on a surveillance report in his report of 30 August 2019. He thought the video observations were inconsistent with Mr Badreddline’s presentation to him. Dr Breit said that Mr Badreddine’s disorder was “factious.”
In his report of 8 July 2020, Dr Breit noted that Mr Badreddine presented without knee supports or crutches. Notwithstanding that Mr Badreddine was not as dramatic in his presentation, Dr Breit confirmed his opinion that the complaint was largely a factitious disorder.
In his report of 28 August 2020, Dr Breit observed that the surveillance showed
Mr Badreddine behaving normally without evidence of any substantive disability. In discussing the clinical notes that he had been asked to examine, Dr Breit said:
“You have provided a vast quantity of general practice notes apparently starting on 31 July 2003 …He is seen on an extraordinarily frequent basis…
……
These frequent visits and notes just keep going on and on.
….
…There is a vast amount of general practice evidence to indicate he had prior problems.
….
”…The presence of an abnormality on an investigation does not equal symptomatology….”

Dr Breit reported again on 8 February 2021, having again assessed Mr Badreddine. He said that the imaging changes were of long-standing pathology, and that Mr Badreddine was suffering from degenerative disease when his lumbar spine was first imaged on 25 November 2017.
As to whether the proposed surgery was reasonably necessary, Dr Breit said that no rationale had been presented as to why it should be undertaken. There was also no rationale for conducting the two-stage anterior and posterior procedure. There was no evidence of radiculopathy, and there were “multiple possible sites of pain and … the site of the claimed back pain has not been isolated.” Mr Badreddine suffered from multilevel disease and the pain generator had not been isolated.

Surveillance material

As indicated, surveillance footage of Mr Badreddine was taken from time to time. Footage was recorded at different times in 2017, 2019, 2020 and 2021. I have viewed that footage (save that of 2020, which suffered a technical issue), and will summarise its effect, as the exigencies of time prevent a detailed analysis.
The 2017 scenes were of Mr Badreddine with his young family. He was filmed variously caring for his children, packing strollers in his car, pushing a pram, and shopping in a supermarket. On 15 December 2017 he did not appear to have any significant restrictions in his manner of walking except for one occasion when he limped few meters to his car, favouring his left leg. He was not using crutches.
On 19 December 2017 he was again seen with his family. He was filmed leaning into the back seat to fit their restraints, and was engaged in domestic activities such as shopping and at one stage joining a number of families to enter what may have been a mosque. He moved without any significant restriction, although it was difficult to tell whether he had a slight antalgic gait due to the camera angles. Again he was not using crutches, although at one stage what looked like a crutch could be seen in the boot of his car. When accompanying his family to the mosque he was carrying a folding chair and other items. His movements were not restricted as he walked. Some footage taken later in the day showed him emptying rubbish from his car into garbage bins, and his manner of walking may have been with an imperceptible limp – it was difficult to judge accurately. He was shown whilst doing some shopping and pushing his two children around in the shopping trolley without any overt sign of restriction. Again he was fluent in his movements but it was not possible to tell whether he was restricted in any way.
Two years later, on 21 August 2019, further footage was obtained of Mr Badreddine again doing unremarkable activity. He was seen shopping, and picking up his children from school with his wife. It was clear in much of that footage that Mr Badreddine was walking in a different manner to that of 2017, in a sort of shuffling gait, as he had put on a considerable amount of weight. On 23 August 2019 there was some very clear footage later in the afternoon of that change. He was seen to walk about 50 meters before he climbed some steps, using the hand rail, and then returned down the steps, again having to use the handrail. He was walking gingerly with what might well have been an antalgic gait, but his added weight appeared to be the cause of his restricted walking style. He was not using crutches.
Footage shot in 2020 was lodged, but unfortunately was unable to be viewed due to a technical issue with the file. The report of the investigator regarding Mr Badreddine’s movements confirmed that during the footage taken he was doing no more than his usual unremarkable daily routine of travelling with his children, shopping in a supermarket, and on 2 July 2020 travelling to the city. He was filmed travelling to Dr Alsayed’s surgery on 22 July 2020. It was apparent that Mr Badreddine had lost some of the weight observed in 2019. The report noted that he was not observed utilising any medical aids during the observations.[26]
[26] Reply page 571.
The next footage was taken this year, on 15 March 2021. Mr Badreddine was again seen driving around his area. More footage was taken of him in a car park and he was followed again in a supermarket at 9 o’clock in the morning. He was seen looking around the sports section, and it was apparent that he had lost a great deal of weight since 2019. The camera followed him walking around the supermarket, and his manner of walking appeared to be more similar to how he first appeared in 2017. Again his manner of walking made it difficult to say conclusively that he did not have an antalgic gait. The camera followed him from a higher level as he walked along the level below. He walked smoothly without any apparent restriction. I could take no more out of the footage than that he appeared to move fluently and quickly. He clearly did not have any significant restriction, and there was certainly no sign of any limp or indeed any difficulty with the left knee. He was standing in a queue for short period of time with his weight evenly distributed, and did not appear in any difficulty. On 16 March 2021 footage was again taken of Mr Badreddine at his home. His manner of locomotion was then unremarkable.

SUBMISSIONS

Mr Morgan submitted that I would accept the opinions of Dr Singh and Dr Gehr over that of
Dr Breit. Mr Morgan observed that whilst there was “huge slew of material” relied on by the respondent, a good deal of it had been seen by the AMS, who did not find it to be relevant.
Dr Breit’s reports had been “strident”, but he had failed to consider whether the accepted injury to the lumbar spine had materially contributed to the need for surgery.
Mr Morgan referred to the pathology that had been identified, such as calcification, and submitted that Mr Badreddine had described sufficient symptomatology to justify the proposed surgical intervention. Mr Badreddine had been seen with an antalgic gait, and I would accept Dr Singh’s opinion, as Dr Singh had a long-standing relation with Mr Badreddine’s case.
Mr Morgan submitted that when Mr Badreddine’s condition was measured against the criteria set out by DP Roche in Diab, I would be satisfied that the declaration could be made. Conservative treatment, Mr Morgan submitted, had been exhausted.
Mr Saul submitted that a more objective view of the applicant’s case would show that he could not succeed in this application. He made a number of submissions which it is convenient to deal with in my discussion, as I accept many of them.
In response, Mr Morgan repeated his submission that the test was whether his employment as a baker with the respondent for five years had made a material contribution to the need for surgery, by virtue of the admitted injury. Mr Morgan accepted that the evidence demonstrated a pre-existing grumbling back but he said that an employer was obliged to take its worker as it found him.

DISCUSSION

In Diab DP Roche set out what is now the accepted criteria that needs to be considered in cases of this nature. At [76] the learned DP said:
“76. The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW)[1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose) where his Honour said, at 48A—C:
‘3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition’.”
DP Roche then considered existing authority, and distilled from it the following matters that were relevant, from paragraph [88]:
“88. In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
89. With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
The evidence falls far short of establishing that the proposed surgery is appropriate in
Mr Badreddine’s case.
Firstly, the clinical notes of Dr Alsayed revealed a plethora of problems dating back to 2003, including a chronic back condition. Indeed on 3 January 2018 Dr Alsayed referred
Mr Badreddine to various medical specialists under the Commonwealth Government “Enhanced Primary Care Initiative” for patients with chronic conditions and complex care needs. Accordingly the appropriateness of the proposed surgery must be considered against this background.
The clinical notes contained complaints of back and neck pain dating back to September 2003[27]. There were suggestions that Mr Badreddine was suffering from post-traumatic stress disorder in October 2003 and from a depressive anxiety disorder in December 2003. Back pain was a constant complaint throughout 2004 and 2005. There appears to have been a hiatus in Mr Badreddine’s attendance in 2006, but from 2007 complaints about back pain regularly appear. Mr Badreddine was referred to Dr Graeme Mahony, Orthopaedic Surgeon, and Dr Medhat Metry , Psychologist, in December 2007. Practically every entry between 2008 and the date of injury (which was reported in the notes on 23 November 2017), was concerned with back complaints – sometimes with “radiation”, sometimes with “sciatica.” There were other complaints of neck pain, bilateral shoulder pain, and wrist pain. X-rays and CT scans of Mr Badreddine’s back had been taken in 2005 and 2015.
[27] Reply page 363, 362, 360.

This extensive and continual prior history of back complaints was not mentioned by
Mr Badreddine in his statements, notwithstanding that he did address his previous medical conditions and injuries in his statement of 29 August 2019. He admitted to a bilateral carpal tunnel condition in July 2017 and, also in July 2017, to a bilateral shoulder condition, along with a bilateral elbow condition. These conditions, Mr Badreddine asserted, arose due to the nature and conditions of his work with the respondent. It is clear however that Mr Badreddine was complaining about many issues well before he commenced with the respondent in 2011.
Mr Saul submitted that Mr Badreddine’s credit was an issue in this case, and I agree that the failure by Mr Badreddine to mention his constant back complaints over the 11 years prior to his injury raises a significant question regarding his reliability. As I indicated, it is clear that
Mr Badreddine had assistance in compiling his first statement and I can only assume that the clinical records were not available at that time. Similarly Mr Badreddine’s assertion at paragraph 8 that he had been attending Dr Alsayed for the past five years before his injury also raises the question of Mr Badreddine’s reliability, as he had been attending Dr Alsayed since 2003.
Mr Badreddine’s second statement of 18 March 2021 did not attempt to set the record straight, and indeed was more concerned with advocacy than accuracy.
Mr Badreddine’s credit has also been affected by the content of the surveillance material. It demonstrated that Mr Badreddine’s presentation to the medical experts was inconsistent with how he behaved in his normal life.
I take into account that Mr Badreddine was filmed only occasionally over this time, and that the video taken showed only a snapshot of Mr Badreddine’s daily routine. I note the contents of Mr Badreddine’s statement of 30 April 2021, in which he sought to justify his movements in each video. However, I found this evidence to be unconvincing. If, for instance, he had been using the shopping trolley as a walking aid, as he alleged, it is hardly likely that he would put his two children into it to add to the weight he had to push around. Further, his explanation for the presence of the crutch in his car I have difficulty in accepting.
[28] Reply page 506.
Mr Badreddine said that as at August 2019 he was gradually beginning to stop the use of crutches, and yet when he presented to Dr Singh that same month he “walked in with crutches”, and he continued to utilise the crutches when he saw Dr Singh in November 2020. He presented to Dr Breit on 20 June 2019 leaning heavily on the left crutch,[28] and the AMS on 27 November 2019 noted that he used his crutch. He was noted to present with a crutch to Dr Porteous in February 2019. Dr Rahme noted the use of crutches earlier in August 2018, and Mr Badreddine presented to Dr Maniam using crutches in January 2018.
Whilst I exercise some caution in attributing evidence of this kind much weight, it nonetheless is a factor that is relevant when I consider whether the assumptions made by the medical experts have been made in a fair climate. The most favourable interpretation of all the video is that Mr Badreddine may have had from time to time some problems with his locomotion, particularly when he had put on an excess amount of weight in 2019. When he was seen in March of this year he had lost a lot of the weight and moved a lot more freely. He undoubtedly presented to the above medical practitioners as a good deal more disabled than he appeared in the surveillance material.
Mr Morgan described the opinions of Dr Breit as “strident.” Nonetheless, Dr Breit had the advantage of seeing the applicant between June 2019 and February 2021. He was able therefore to form an opinion over the period of time that he became familiar with
Mr Badreddine’s case. Significantly, he was the only medical specialist to comment on the extensive past history divulged in the clinical notes of Dr Alsayed.
Dr Breit’s opinion that Mr Badreddine was suffering from a “factitious disorder” must be rejected, as the respondent has admitted the injury, and I interpret Dr Breit’s phrase as meaning that Mr Badreddine’s presentation was so exaggerated that Dr Breit could not accept that he had suffered any injury at all.
However, I accept that Dr Breit was in a good position to make an evaluation regarding
Mr Badreddine’s credit, and his observation regarding the video evidence accords with my impression that at no time did Mr Badreddine show any sign of any substantive disability. As I have indicated, Mr Badreddine from time to time exhibited a style of locomotion that may have been consistent with an altered gait, and he was definitely limping in that short scene in 2017, but I regard the use by him of crutches when he was seeing the medical experts as an overt attempt to exaggerate his condition, and I accordingly approach his evidence with some caution – particularly his attempt to explain his actions in his last statement.
Dr Singh’s opinion I do not find to be of assistance.
Not only did he fail to enquire as to the applicant’s past history, but he was unaware of the surveillance evidence, whilst he accepted that Mr Badreddine’s presentation on crutches was genuine. His opinion that the recommended surgery was warranted I do not find to be of probative weight. In the light of the extensive range of problems revealed within the clinical notes, including other physical conditions but importantly, psychological investigation, I do not have any faith in Dr Singh’s somewhat bland assurance that an L4/L5 fusion will have a beneficial effect.
I have no confidence that the proposed surgery is likely to give Mr Badreddine either relief from symptoms or improve his functional capacity. If Dr Singh had been aware of
Mr Badreddine’s past medical history and the contrast between his presentation and his activities shown in the surveillance, I am not at all sure that Dr Singh would have been quite as sanguine about the outcome of the proposed surgery.
I note in passing that the 500 odd pages of clinical notes were not remarked on by the AMS, who made no deduction pursuant to s 323 and was clearly unaware of the extensive prior history of back problems. Neither did Dr Rahme or Dr Porteous consider the past history contained within those notes.
I bear in mind that reliance on clinical notes must be treated with caution,[29] but nonetheless the fact of so many consistent complaints over many years is one which required some explanation from Dr Singh, who had recommended the surgery, and of course from the medico-legal expert retained by the applicant, Dr Gehr.
[29] Qannadian v Bartter Enterprises Pty Limited [2016] NSWWCCPD 50 (Qannadian).
Dr Gehr nominated 23 different sets of documents that had been forwarded to him, but absent from them were the clinical notes from Dr Alsayed. Dr Gehr’s acceptance from Mr Badreddine that he had no previous problems with his lumbar spine (relevantly) has deprived his opinion of any probative weight. The multiplicity of back complaints, and other physical complaints contained within those clinical notes together with the occasional references to
Mr Badreddine’s mental state needed to be addressed by Dr Gehr in order to give his opinion any probative value.
Accordingly, I am by no means persuaded that the proposed surgery is appropriate treatment for a spinal condition that is not been adequately identified or diagnosed.
I am also not satisfied that Mr Badreddine has availed himself of a potentially effective alternative treatment. Although the applicant’s case stressed that all possible alternative treatments have been attempted, and indeed the latter part of Mr Badreddine’s second statement was addressed to that subject, both Mr Badreddine and Dr Singh appear to have overlooked a matter which they both sought sufficiently important to acknowledge.
Mr Badreddine remembered in his statement that he had been advised by Dr Singh that if he had the recommended knee surgery, his back problems would be eased. Dr Singh confirmed that on 18 June 2020 he had indeed given that advice, saying surgery could be expected to improve the altered gait and “help his lower back.”
The insurer has approved the proposed surgery to the injured knee, but Mr Badreddine did not proceed. Mr Morgan could give me no explanation as to why that was so.
Dr Singh explicitly stated on 18 June 2020 that he wanted to see Mr Badreddine after the knee arthroscopy had taken place. However, the following month, on 29 July 2020, Dr Singh made the recommendation for surgery without referring to his earlier recommendation.
Dr Singh thus saw Mr Badreddine prior to the knee arthroscopy, which was inconsistent with his opinion given only weeks before. Dr Singh made no explanation as to why this was so.
Further, I am by no means persuaded that the proposed surgery will have any actual or potential effectiveness. Dr Singh’s justification for his opinion was the presence of pathology in the lumbar spine, which he said had been seen in an MRI of 2017. In fact imaging studies had shown extensive pathology on 6 August 2015[30] and 8 October 2010[31], and there was accordingly no discussion of the significance or otherwise of those imaging scans. I accept
[30] Reply page 307.
[31] Reply page 397.
Dr Breit’s observation in his report of 8 February 2021 that the changes in Mr Badreddine’s lumbar spine were of longstanding pathology, that he had multi-level disease, and that the site of the complaints had not been identified. I accept also Dr Breit’s statement of the obvious in his report of 28 August 2020 – that the presence of an abnormality on an investigation did not equate to the presence of symptomatology.
Without a full history of Mr Badreddine’s extensive prior history and without an awareness of Mr Badreddine’s inconsistent presentation, the opinions of Dr Singh and Dr Gehr that there might be some benefit in the proposed surgery is fanciful, with respect.
Mr Morgan on more than one occasion submitted that a weakness in the respondent’s case was that it did not address the proposition that the subject injury was a material factor in causing the need for surgery. As I have found that there is no such need, that submission is rejected.
For these reasons, the application is declined. There will be an award in favour of the respondent.

[2021] NSWPIC 241

14 July 2021