Barnes v Woolworths Group Ltd t/as Primary Connect

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Barnes v Woolworths Group Ltd t/as Primary Connect [2025] NSWPIC 118
APPLICANT:	Trevor Barnes
RESPONDENT:	Primary Connect formerly known as Woolworths Group Limited
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	31 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for costs of proposed L5/S1 anterior interbody fusion; liability for injury accepted; respondent disputed that surgery was reasonably necessary as a result of the injury; causation not in issue; Bartolo v Western Sydney Area Health Service, Diab v NRMA Ltd, and Rose v Health Commission (NSW) considered; Held – proposed surgery reasonably necessary as result of injury; award for applicant for costs of and incidental to proposed surgery.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent is to pay, pursuant to s 60 of the Workers Compensation Act 1987, the costs of and incidental to proposed L5/S1 anterior interbody fusion, as recommended by Dr Marc Coughlan. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Trevor Barnes (Mr Barnes) is employed by the respondent, Primary Connect formerly known as Woolworths Group Limited, as a storeman and packer.
Mr Barnes sustained injury to his neck and lower back on 4 September 2023 when he was struck by a forklift. Liability for the injury has been accepted.
On 22 January 2024, the applicant’s treating neurosurgeon, Dr Marc Coughlan, sought approval from the respondent’s insurer, Employers Mutual Limited (EML), for a proposed surgical procedure, that is, L5/S1 anterior interbody fusion.
On 9 February 2024, EML issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
EML disputed liability for the proposed surgery as it maintained the treatment was not reasonably necessary and did not arise as a result of a workplace injury.
By letter dated 1 July 2024, the applicant’s solicitors requested that EML review its decision, pursuant to s 287A of the 1998 Act.
On 1 August 2024, EML issued the applicant with a notice pursuant to s 287A of the 1998 Act, advising that its decision to dispute liability had been upheld.
The applicant lodged an Application to Resolve a Dispute (the Application) on
5 December 2024.
The applicant claimed that on 4 September 2023, he sustained injuries to his neck and lower back when he was struck by a forklift driven by a co-worker.
The applicant claimed weekly benefits compensation from 4 September 2023 to date and continuing; and future treatment, care or related expenses of $11,006.25 in respect of L5/S1 anterior interbody fusion.
The respondent lodged its Reply on 6 January 2025.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the proposed surgery is reasonably necessary treatment as a result of the injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for preliminary conference on 3 February 2025. Mr Hobbs appeared for the applicant, who was present; and Ms Dunn appeared for the respondent. Mrs Barnes attended as the applicant’s support person. Ms Ailabouni of EML also attended.
The parties reached agreement on the applicant’s claim for weekly benefits compensation, which had arisen as a result of a dispute about the applicant's pre-injury average weekly earnings, and that agreement was noted.
The respondent advised that it would seek to rely on a supplementary report from Dr Biggs, which it intended to serve that day.
The matter was listed for conciliation/arbitration hearing on 24 March 2025, on the Teams platform. Mr McManamey of counsel, instructed by Mr Hobbs, appeared for the applicant, who was present. Mr Stiles of counsel, instructed by Ms Dunn and Ms Walker, appeared for the respondent. Mrs Barnes attended as support person for the applicant. Ms Rock of EML also attended.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Lodge Additional Documents lodged by the respondent, dated
19 March 2025, and attached documents.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Trevor Barnes

The applicant’s statement is dated 2 December 2024.
On 4 September 2023, he was hit from behind by a pallet loader being driven by another employee. As a result, he sustained significant injuries to his neck and back.
He consulted his general practitioner (GP), Dr (David) Daoud, who referred him to Dr Coughlan.
As he had not responded to conservative treatment such as physiotherapy, Dr Coughlan had recommended that he undergo an anterior interbody fusion at L5/S1.
Whilst he had some concerns about undergoing such surgery, he saw no alternative, and would like to proceed with it, as the condition of his lower back was significantly impairing him, and deteriorating as time progressed.
Specifically:
(a)     he was in constant pain and agony in his lower back;
(b)     he could only undertake minimal activities;
(c)     he had been unable to return to any work;
(d)     he was largely housebound;
(e)     he had a lot of trouble sleeping due to pain;
(f)     he experienced significant pain shooting down both legs, which was constant and debilitating, and
(g)     he was required to take strong pain relief medication. He would like not to keep taking it as it had significant side effects, including constipation, but he had to take it due to severe pain.
Prior to this accident, he worked very hard, including overtime. He was also very active. He enjoyed fishing and was a member of the Umina Fishing Club. He also enjoyed bike riding and skiing. He had been unable to return to those activities.
He had intended to assist his daughter in renovating a property in Gloucester. However, he was barely able to tolerate the travel there, let alone carry out any work.
He was desperate to attempt to gain some improvement and return to the sort of life he used to enjoy. Dr Coughlan had indicated that for this to occur, he needed to have the L5/S1 surgery, which he wanted to have.

Medical evidence

Dr Marc Coughlan - neurosurgeon

Dr Coughlan reported to Dr Daoud on 2 December 2023.
Dr Coughlan recorded a consistent history of the injury. The applicant had developed quite significant back pain. He also had some leg pain, but the back pain seemed to be the overwhelming issue.
The applicant had a very collapsed segment at L5/S1, with some retrolisthesis and significant modic changes.
Dr Coughlan had suggested a SPECT bone scan of the applicant’s lumbar spine and sacroiliac joints, to look at his facets in particular. Dr Coughlan suspected that most of the applicant’s pain was predominant discogenic from the lower disc.
On 20 January 2024, Dr Coughlan reported that the applicant’s back and left leg pain were approximately 5-6/10.
On imaging, the applicant had a transitional segment at L5/S1 with collapse at that level and retrolisthesis at L5/S1, with some degree of foraminal stenosis. The applicant had quite marked discopathy at L5/S1.
Dr Coughlan had recommended that the applicant consider an L5/S1 anterior interbody fusion to distract the collapsed disc space and address his leg and back pain.
Dr Coughlan reported to EML on 6 February 2024.
Dr Coughlan opined that the proposed surgery was both reasonable and necessary as the most appropriate treatment for the applicant’s condition. He was “certainly hopeful” that the surgery would greatly alleviate the applicant's symptoms and improve his functionality.
The estimated recovery timeframes following the proposed surgery were:
(a)    adherence to post-operative precautions for at least six weeks
(b)    return to work on suitable duties and reduced hours at around 12 weeks
(c)    return to suitable duties and full hours at around 16 weeks
(d)    return to pre-injury duties at around 24 weeks
However, Dr Coughlan warned that the recovery process can differ for each individual, and a gradual increase in physical activity is usually guided by a physiotherapist.
Dr Coughlan reported to the applicant’s solicitors on 18 April 2024.
Dr Coughlan explained that, from a surgeon’s perspective, all decisions and assessments were correlated and based on imaging and the severity of reported symptoms.
The applicant’s imaging showed he had a transitional segment at L5/S1 with collapse at that level and retrolisthesis at L5/S1 with some degree of foraminal stenosis. The applicant had quite marked discopathy at L5/S1. This was closely correlated with his symptoms.
The applicant had severe back and leg pain.
Dr Coughlan repeated that the proposed surgery was both reasonable and necessary as the most appropriate treatment for the applicant’s condition.
On 4 September 2024, Dr Coughlan reported to the applicant’s solicitors that Mr Barnes was at risk of permanent nerve damage if he did not undergo the proposed surgery. There were no suitable alternative treatments that would adequately address the applicant’s issues.

Dr Thomas Bennett – injury management consultant

Dr Bennett was qualified by the respondent and reported first on 7 December 2023.
Dr Bennett recorded a consistent history of the injury, and that Dr Coughlan had recommended a SPECT bone scan of the applicant’s lumbar spine and sacroiliac joints.
The applicant described intermittent aching or burning low back pain, rated as 5-6/10, and lasting for 30 to 60 minutes, multiple times per day. The pain worsened on moving, lifting, and prolonged sitting. It was improved with paracetamol, orphenadrine, and gentle movement. There was no radiation or stiffness. The applicant denied any numbness, weakness, or paraesthesia.
Dr Bennett reported that the applicant agreed he had capacity to work and could work from home. If transport one way was available, he could attend his pre-injury employment, as a colleague could transport him one way.
They agreed the applicant could perform sedentary administration type duties. The applicant volunteered the ability to work for four hours per day, five days per week. He had only driven for 10 minutes, so was unsure if he could drive greater distances.
The applicant suggested various restrictions on lifting/carrying; pushing/pulling; standing or sitting before changing posture; bending, twisting and squatting; and driving.
Dr Bennett was unable to discuss the applicant’s case with Dr Daoud or the applicant’s physiotherapist, Mr Bruno Rebello.
Dr Bennett opined that the applicant suffered ongoing lumbar and more minor cervical pain. He was attending physiotherapy twice weekly and awaiting a bone scan, after which he was to be reviewed by Dr Coughlan. This should hopefully provide a diagnosis.
Dr Bennett believed the applicant could perform the duties discussed, with restrictions, for 20 hours per week. These could hopefully be increased to pre-injury hours within one to two months. Whether the applicant would return to his pre-injury duties would depend on how his return to work progressed and the results of the bone scan.
Dr Bennett provided a supplementary report on 20 December 2023, having discussed the case with Mr Rebello.
Mr Rebello advised the applicant was progressing well. The diagnosis was exacerbation of pre-existing lumbar and cervical spine disease, and there was no significant neurological deficit. The applicant’s review with Dr Coughlan was pending, but Mr Rebello doubted there would be operative management.
They agreed the applicant could perform sedentary administrative type duties, for 20 hours per week, with restrictions.
Dr Bennett suggested that a copy of the report be forwarded to the applicant’s NTD (nominated treating doctor).
Dr Bennett’s second supplementary report is dated 19 January 2024.
Dr Bennett agreed the applicant was suitable for stock location checks, general housekeeping checks, and administration duties, working four hours per day, normal days per week, with restrictions.
Dr Bennett performed a second injury management consultation on 14 October 2024. This consisted of a file review. Dr Bennett had available to him the other medical evidence referred to in these reasons, including the bone scan dated 5 December 2023.
Dr Bennett discussed the matter with Dr Daoud on 14 October 2024.
Dr Daoud reported that the applicant’s main symptoms were neuropathic pain down both legs, and occasional numbness. The applicant also had lumbar back pain, but leg pain was the main symptom.
The applicant had trialled Norgesic and paracetamol. Dr Bennett suggested neuropathic analgesia, which Dr Daoud agreed to review. The applicant was attending physiotherapy and hydrotherapy.
Dr Daoud agreed that review by a pain specialist was appropriate, and he would make this referral. They discussed the [request for approval of] surgery having been declined.
They also discussed the applicant’s adjustment disorder, for which he consulted a psychologist. Dr Daoud declined the need for a psychiatrist, as the applicant’s symptoms were relatively mild. Dr Bennett suggested duloxetine or venlafaxine, as they could improve both the psychological symptoms and neuropathic pain.
Dr Daoud advised there were no administration-based roles available. He agreed the applicant likely had some capacity to work but wanted to discuss this with Mr Barnes before agreeing to hours and restrictions.
Dr Daoud suggested the applicant’s capacity could be documented after the pain specialist review, but Dr Bennett explained the need to document current capacity accurately at the time of the reviews. Dr Bennett was concerned that the applicant’s mental health may deteriorate the longer he was out of work.
Dr Bennett suggested a medical case conference with the respondent, physiotherapist,
Dr Daoud, and Mr Barnes. Dr Daoud agreed this would assist. He was unsure whether the applicant would return to pre-injury duties.
Dr Bennett also discussed the matter with Mr Rebello on 14 October 2024.
Mr Rebello advised that the applicant had made no progress since their last discussion, 10 months ago.
The applicant’s main problems were neuropathic pain down both legs. He suffered from occasional numbness. There was also lumbar back pain, but the leg pain was the main symptom.
Treatment included weekly sessions, which were largely symptomatic management, and
Mr Rebello had provided a home-based exercise program. He also suggested a transition to exercise physiology.
Dr Bennett and Mr Rebello agreed the applicant could perform sedentary administration type duties, working 20 hours per week, with restrictions. Mr Rebello doubted the applicant would return to his pre-injury duties, with or without the surgery. Dr Bennett concurred.
Dr Bennett recorded the applicant’s main symptoms were neuropathic pain down the legs, and Mr Barnes also suffered from lumbar back pain.
Dr Bennett suggested a transition to exercise physiology, but if there was no improvement after one AHRR (allied health recovery request), this should be ceased, as the applicant already had a self-management program. Along with the medication Dr Bennett had recommended, “a pain specialist could also help.”
If there was no significant improvement in the applicant’s symptoms in three months, after a trial of neuropathic agents and/or pain specialist review, Dr Bennett recommended the applicant undergo a vocational assessment, if the respondent could not offer permanent restricted duties.

Dr Michael Biggs – neurosurgeon

Dr Biggs reported to EML on 23 April 2024.
Dr Biggs recorded a consistent history of the injury. He noted that the applicant had had X-ray, MRI and bone scan, and Dr Coughlan had suggested surgery.
The applicant had continued with pain in the lower back, and as a result did not sleep well. He had undergone physiotherapy and acupuncture, which had been helpful. He had also been treated with analgesia. His neck pain had largely settled, but he got “a bit of pain which comes and goes.”
Mr Barnes had not returned to work, although he felt he could do light duties if they were offered.
The applicant was not undergoing any formal treatment. His physiotherapist had given him home exercises. He was using Norgesic for pain control, but only at night.
The applicant complained of low back pain that was worse when he did anything like vacuuming, cleaning, or sat or stood for too long. He had no radicular pain. His neck pain had dramatically improved and was intermittent only.
Dr Biggs had available the MRI of the applicant’s cervical and lumbosacral spine. He opined that the applicant had likely injured his L5/S1 disc as a result of the workplace injury. This was on a background of degenerative changes in the lower lumbar spine, affecting the L3/4, L4/5 and L5/S1 levels. The applicant had also suffered a minor soft tissue neck injury, which was recovering.
Dr Biggs’ diagnosis was L5/S1 intervertebral disc injury, with no radiculopathy, and minor soft tissue neck injury, recovering.
Dr Biggs reported no inconsistencies between the applicant’s reported symptoms, the demonstrated level of capacity/incapacity and the objectively identified pathology.
Dr Biggs opined that the applicant needed no further treatment, besides appropriate analgesia. Home based exercises were appropriate.
Dr Biggs did not agree that the applicant needed an L5/S1 anterior lumbar interbody fusion (ALIF). The applicant had no radicular symptoms and back pain, per se, was not an appropriate indication for ALIF.
Dr Biggs provided a supplementary report dated 15 January 2025.
Dr Biggs noted the applicant’s bone scan dated 5 December 2023 showed increased uptake in the intervertebral disc space at L5/S1, adding support to the assertion that the pain was emanating from this disc space. All those who had commented on the case seemed to agree on this. The bone scan also showed increased uptake in the right L4/5 facet joint, both L5/S1 facet joints, and both S1 joints.
Dr Biggs reported the applicant had no radicular pain anymore, and no nerve root compression on MRI scan. The initial leg symptoms had resolved, and when Dr Biggs saw Mr Barnes on 18 April 2024, he had no radicular pain. He also had no radicular pain when
Dr Sheehy saw him on 23 May 2024. The applicant had no instability at L5/S1.
Dr Biggs opined that fusion for mechanical low back pain in the absence of nerve root compression or instability, in a workers compensation setting, would, at best, be associated with a 50% to 60% chance of providing any relief of symptoms. Fusing L5/S1 would place additional load on the adjacent L4/5 level, which was already “hot” on the bone scan. (Emphasis in original).
Dr Biggs believed the applicant had an unrealistic expectation of what an L5/S1 fusion would achieve. Dr Bennett, Dr Daoud, Dr Sheehy and Dr Biggs had all stated the applicant would not return to his pre-injury duties. Dr Biggs did not agree with Dr Coughlan that the applicant would return to pre-injury duties about 24 weeks post-fusion.
Dr Biggs reiterated that at best there would be a 50% to 60% chance of some improvement in symptoms, which was likely to be short-lived, as degenerative changes at L4/5 accelerated due to the extra load placed upon it. (Emphasis in original).

Dr Biggs supported referral to a pain specialist, as suggested by Dr Bennett.
Dr Biggs noted that Dr Sheehy had changed his view based on the bone scan result, which confirmed the L5/S1 intervertebral disc was “hot”, and hence likely to be a pain generator.
Dr Biggs was always of the opinion that this was the case. The bone scan result showed other hot spots, and Dr Biggs did not think the surgery was in Mr Barnes’ best interest.
Dr Biggs was asked to comment on the risk, identified by Dr Coughlan, that the applicant would sustain permanent nerve damage without the surgery. He opined that the applicant had no radicular pain and no nerve root compression on MRI, so he did “not agree with this comment at all.” There was no anatomical basis to suggest the applicant was at risk of permanent nerve damage without the surgery.
Dr Biggs opined that the applicant would have lifelong low back pain, whether or not he underwent surgery. The applicant would not return to pre-injury duties, with or without surgery. Dr Bennett, Dr Sheehy and Dr Biggs had discussed a staged return to work with restrictions that could be commenced now at four hours per day, three days per week. If the applicant had surgery, staged return to work with the same restrictions would not commence until three months post-surgery, at the earliest.

Dr John Sheehy – neurosurgeon

Dr Sheehy reported first on 23 May 2024.
Dr Sheehy recorded a consistent history of the injury. The applicant had attempted light duties for three days but was unable to continue because of persisting back and neck symptoms.
The applicant was “not really improving”. He continued to be troubled by low back pain and neck pain. His legs ached at night. There was no true radicular pain. There was no radicular arm pain.
Mr Barnes used Norgesic for pain relief. He continued with physiotherapy once a week. This involved massage and acupuncture, which helped a little, and he continued with exercises at home.
Dr Sheehy reviewed the report of the MRI of the applicant’s cervical and lumbar spine. He noted that a bone scan had been undertaken but the report was not provided. He had been provided with Dr Coughlan’s report dated 6 February 2024.
Dr Sheehy opined that the applicant’s prognosis must be guarded. He assessed the applicant’s permanent impairment as 11%, of which 7% related to injury to the lumbar spine.
On the information available, Dr Sheehy opined there was no indication for anterior lumbar fusion at L5/S1. He had not been provided with Dr Coughlan’s reasoning, or the report of the bone scan. If they could be obtained, there may be reason to change his opinion.
Dr Sheehy again reported on 22 October 2024, having been provided with the report of the bone scan dated 5 December 2023 and Dr Coughlan’s report dated 4 September 2024.
Dr Sheehy now opined that the proposed surgery should be supported. The MRI scan demonstrated a central right paracentral disc bulge and a small annular tear, but the bone scan showed increased uptake at L5/S1. As there had been a failure of other conservative measures, instrumentation at the lumbosacral junction was appropriate.

Dr David Daoud – GP

Dr Daoud reported to the applicant’s solicitors on 7 November 2024.
Dr Daoud reported that Mr Barnes had been compliant with treatment regarding counselling, attending physiotherapy, and appointments with the neurosurgeon.
Dr Daoud opined that the proposed surgery was both reasonably [sic] and necessary, because it was the most appropriate treatment for the applicant’s condition and symptoms, the applicant was at risk of permanent nerve damage if he did not undergo the surgery, and there were no suitable alternative treatments that would adequately address his issues. This is simply a repetition of Dr Coughlan’s opinion.

SUBMISSIONS

Counsel’s submissions have been recorded, so I will summarise them briefly.

Applicant

The applicant submitted the sole issue was the reasonable necessity of the proposed surgery.
The applicant referred to his evidence regarding his treatment and the effects of the injury, including his evidence about experiencing leg pain.
The applicant submitted Dr Coughlan had opined that the proposed surgery was reasonable and necessary, which is a higher test than that required by s 60 of the Workers Compensation Act 1987 (the 1987 Act). In Dr Coughlan’s opinion, there was no suitable alternative to surgery.
The applicant submitted it was significant that Dr Sheehy, having been provided with the full history and investigations, opined that the surgery should be supported. Dr Daoud also supported the surgery. It was therefore supported by two neurosurgeons and the GP.
The applicant submitted that Dr Biggs did not appear to have taken a history as to whether the applicant experienced pain in his legs. Dr Biggs opined that the applicant’s power and reflexes were normal, but recorded 60° straight leg raising, which is abnormal, and he did not address why this was the case.
The applicant referred to the evidence of Dr Bennett, who had recorded that his main symptoms were in his legs, and Dr Bennett’s discussion with Dr Daoud and Mr Rebello. He submitted that the evidence of two people who provided “hands on” management was that his main problem was leg pain.
The applicant submitted that whether he “needs” the surgery is not the test. The applicant referred to cases such as Bartolo v Western Sydney Area Health Service.[1]
[1] [1997] NSWCC 1; 14 NSWCCR 233 (Bartolo).
The applicant submitted that the proposed surgery is an accepted form of treatment; it is “not cheap”, but everything else had failed; Dr Coughlan was optimistic of its success; and
Dr Biggs had opined that it had a 50% to 60% chance of success, where conservative treatment offered nothing. Whether it was in the applicant’s best interest to have the surgery did not address the test.
The applicant submitted I would accept the evidence of Drs Coughlan and Sheehy over that of Dr Biggs. Dr Biggs probably did not have the correct history of symptoms, as he saw the applicant in April 2024 and was not apprised of the more recent evidence.
The applicant submitted I would conclude the treatment should be provided, given the failure of conservative treatment, and the consensus that it could improve his condition. He submitted I would make an award in his favour for the costs of and incidental to the surgery recommended by Dr Coughlan.
In reply to the respondent, the applicant submitted the test is whether the treatment is reasonably necessary. The fact that there may be alternative treatments did not mean the surgery was not reasonably necessary.
The applicant submitted the certificate of capacity (COC) on which the respondent placed weight seemed to suggest on its face that the applicant had already seen Dr Kadavil, a pain specialist, as there was a request for approval of hydrotherapy and surgery. The COC also stated that surgery was the only available treatment option, and the applicant had shooting pain in his legs and constant nerve pain.
The applicant submitted that if the respondent asserted there were other treatment options, it should have evidence of, for example, the costs of that treatment.
The applicant finally submitted that two neurosurgeons had opined that the surgery was reasonably necessary. Dr Biggs believed there was some prospect of improving his symptoms, while Dr Coughlan was more optimistic. The treatment should be afforded to the applicant.

Respondent

The respondent relied on the evidence of Dr Biggs. It submitted there were other options open to the applicant that might benefit him and avoid treatment that may have adverse consequences.
The respondent submitted the MRI showed no clear evidence of nerve compression. The request for surgery was based on the bone scan. It noted Dr Biggs had recorded no radiculopathy, and the surgery was not appropriate just for ongoing back symptoms. The history recorded by Dr Sheehy was similar to that of Dr Biggs.
The respondent submitted this “tied in” with the clinical records, which recorded no neurological symptoms on 21 June 2024, and also recorded “withholding pain specialist review”.
The respondent submitted there was no explanation from Dr Coughlan of his opinion that the applicant risked nerve damage should he not undergo the surgery.
The respondent submitted Dr Sheehy changed his view after seeing the bone scan but gave no real explanation of why he did so. Dr Coughlan’s view had not changed, and there was nothing new that would cause Dr Sheehy to change his opinion.
The respondent submitted that Dr Sheehy did not address what other treatment was available, and Dr Daoud just reiterated what Dr Coughlan said, which a GP was likely to do.
The respondent referred to the COC dated 25 November 2024, which contained reference to a pain specialist, consistent with what Dr Bennett had said. There is no evidence from the pain specialist, if the applicant saw one.
The respondent submitted the applicant’s statement did not refer to the pain specialist. The applicant’s evidence gave no detail of the conservative treatment he had undergone.
The respondent submitted Dr Biggs was always of the opinion that the applicant’s pain emanated from the L5/S1 level, and the bone scan did not change that opinion. Dr Biggs did not support the surgery, but supported referral to a pain specialist.
The respondent submitted there were other conservative options available before the applicant underwent a significant procedure. As to the costs of the surgery, the respondent submitted only that it is expensive.
As regards the effectiveness of the treatment, the respondent submitted that a 50/50 chance of any improvement, as opined by Dr Biggs, was not persuasive to approve the surgery, especially with possible adverse effects at L4/5, and the risks referred to by Dr Coughlan. Only Dr Coughlan had suggested there was any realistic prospect of the applicant returning to pre-injury duties.
The respondent submitted there was no clear evidence that the applicant was likely to benefit from the surgery, and there was the prospect of adverse effects, and the applicant not returning to pre-injury duties. Alternative treatments had not been pursued.
The respondent finally submitted I would not find the treatment was reasonably necessary, and there should be an award for the respondent.

SUMMARY

The only issue to be determined is the reasonable necessity of the proposed surgical treatment. The respondent does not dispute that the necessity for the surgery, should such be found, results from the accepted injury to the applicant’s lumbar spine.
Section 60 of the 1987 Act provides:

“60 Compensation for cost of medical or and rehabilitation etchospital treatment

(1) If, as a result of an injury received by a worker, it is reasonably necessary that--
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
Note : Compensation for domestic assistance is provided for by section 60AA.
(2) If it is necessary for a worker to travel in order to receive any such treatment or service (except any treatment or service excluded from this subsection by the regulations), the related travel expenses the employer is liable to pay are--
(a) the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining the treatment or being provided with the service, and
(b) if the worker is not reasonably able to travel unescorted--the amount of the fares, travelling expenses and maintenance necessarily and reasonably incurred by an escort provided to enable the worker to be given the treatment or provided with the service.
(2A) The worker's employer is not liable under this section to pay the cost of any treatment or service (or related travel expenses) if--
(a) the treatment or service is given or provided without the prior approval of the insurer (not including treatment provided within 48 hours of the injury happening and not including treatment or service that is exempt under the Workers Compensation Guidelines from the requirement for prior insurer approval), or
(b) the treatment or service is given or provided by a person who is not appropriately qualified to give or provide the treatment or service, or
(c) the treatment or service is not given or provided in accordance with any conditions imposed by the Workers Compensation Guidelines on the giving or providing of the treatment or service, or
(d) the treatment is given or provided by a health practitioner whose registration as a health practitioner under any relevant law is limited or subject to any condition imposed as a result of a disciplinary process, or who is suspended or disqualified from practice.
(2B) The worker's employer is not liable under this section to pay travel expenses related to any treatment or service if the treatment or service is given or provided at a location that necessitates more travel than is reasonably necessary to obtain the treatment or service.
(2C) The Workers Compensation Guidelines may make provision for or with respect to the following--
(a) establishing rules to be applied in determining whether it is reasonably necessary for a treatment or service to be given or provided,
(b) limiting the kinds of treatment and service (and related travel expenses) that an employer is liable to pay the cost of under this section,
(c) limiting the amount for which an employer is liable to pay under this section for any particular treatment or service,
(d) establishing standard treatment plans for the treatment of particular injuries or classes of injury,
(e) specifying the qualifications or experience that a person requires to be
‘appropriately qualified’ for the purposes of this section to give or provide a treatment or service to an injured worker (including by providing that a person is not appropriately qualified unless approved or accredited by the Authority).
(3) Payments under this section are to be made as the costs are incurred, but only if properly verified.
(4) The fact that a worker is a contributor to a medical, hospital or other benefit fund, and is therefore entitled to any treatment or service either at some special rate or free or entitled to a refund, does not affect the liability of an employer under this section.
(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute may be referred by the President for assessment by a medical assessor under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”

The legal test to be applied in determining whether medical treatment is reasonably necessary as a result of an injury was considered by Deputy President Roche in Diab v NRMA Ltd. [2]
[2] [2014] NSWWCCPD 72 (Diab).
Roche DP said, at [86]:
“Reasonably necessary does not mean ‘absolutely necessary’…If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment concerned is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply…”
Roche DP (at [88] – [90]) added:
“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…in Rose[3] …namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd).[4] Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia,[5] when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content.’”
[3] Rose v Health Commission (NSW) [1986] NSWCC 2; (1986) 2 NSWCCR 32.
[4] [1997] NSWCC 13; (1997) 15 NSWCCR 204.
[5] [2010] HCA 28.
The applicant has given evidence about the effects of the injury and states his condition is deteriorating. He understandably has some concerns about the surgery but is desperate to obtain some improvement and regain his former lifestyle. Dr Biggs warned that his expectation of the outcome of the surgery is unrealistic.
Dr Coughlan, who first saw the applicant in December 2023, has opined that the proposed surgery is “reasonable and necessary”, which as Roche DP said in Diab, is a more demanding test than “reasonably necessary”.
Dr Sheehy initially opined there was no indication for surgery, pointing out he had not been provided with Dr Coughlan’s reasoning, or the bone scan.
When Dr Sheehy was provided with Dr Coughlan’s report dated 4 September 2024 and the bone scan, he supported the proposed surgery. Dr Coughlan’s report, brief though it is, was sufficient, together with the bone scan, to persuade Dr Sheehy to change his opinion. He expressed none of the concerns raised by Dr Biggs.
The respondent relied on the evidence of Dr Biggs and referred to the absence of neurological symptoms.

149.While Dr Biggs has recorded that there was no radiculopathy, and Dr Daoud’s clinical note on 21 June 2024 also recorded no neurological symptoms, there is medical evidence that the applicant did experience symptoms in both legs. The applicant has also given this evidence.

Dr Bennett reported that both Dr Daoud and Mr Rebello described the applicant’s main symptoms as being in his legs. Dr Daoud described neuropathic pain down both legs, and occasional numbness. Mr Rebello said virtually the same thing. As the applicant submitted, the two people who provided the applicant with “hands on” management had both opined that his main problem was leg pain.
When the applicant first consulted Dr Coughlan, the doctor recorded some leg pain, but at that stage the applicant’s back seemed to be the “overwhelming issue.” By 18 April 2024, however, Dr Coughlan reported the applicant had severe back and leg pain. His symptoms and the imaging were closely correlated.
The respondent submitted there were alternative treatments, such as pain management, that the applicant could pursue.

153.Dr Bennett reported that the applicant had undergone physiotherapy (Mr Rebello advising

him that the applicant had made no progress in the last 10 months) and hydrotherapy, as well as trialling Norgesic.
154.In my view, it is significant that Dr Bennett and Dr Daoud discussed a referral to a pain management specialist and a change of medication once they were aware that liability for the surgery had been disputed. That much is clear from Dr Bennett’s injury management consultation on 14 October 2024, when he reported that he and Dr Daoud had discussed the request for approval of surgery having been declined. It appears they were seeking alternatives because the applicant was not able to have the surgery, not because they did not support the recommendation for surgery.

I do not regard it as persuasive that only Dr Cochrane has expressed the opinion that the applicant will be able to return to his pre-injury duties should he undergo the surgery.
Dr Cochrane is perhaps best placed to provide this opinion, as he is the person who proposes to perform the surgery. However, even if the outcome of the surgery was not such that the applicant could return to his pre-injury duties, that would not mean it was not reasonably necessary treatment.
Considering the matters to which Burke CCJ referred in Rose:
(a)     The appropriateness of the particular treatment: both Dr Coughlan and
Dr Sheehy agree that the proposed surgery is appropriate. Dr Biggs’ opinion that it is not appropriate treatment appears to be in large part because he did not record radicular pain; he believed there was only a 50% to 60% chance of any relief of the applicant’s symptoms; and he did not believe the applicant would return to his pre-injury duties, even if the surgery was performed.
(b)     The availability of alternative treatment and its potential effectiveness: the applicant had had no benefit from physiotherapy for a period of 10 months.
Dr Coughlan opined that he risked permanent nerve damage should he not undergo the surgery. Dr Biggs initially suggested no alternative treatment, apart from analgesia and home based exercises. He opined that the applicant would have lifelong low back pain, with or without the surgery. He supported the referral to a pain specialist, but only after it was suggested by Dr Bennett after liability for the surgery was disputed.
(c)     The cost of the treatment: as the applicant submitted, the treatment is “not cheap”, and the respondent submitted it is expensive. However, the cost of the treatment was not a matter on which the respondent relied in disputing liability, and in my view is a neutral factor.
(d)     The actual or potential effectiveness of the treatment: here, there is a difference of opinion between Dr Coughlan and Dr Biggs. Dr Coughlan is optimistic about the outcome of the surgery, while I have referred to Dr Biggs’ opinion under (a) above.
Dr Sheehy has not expressed similar reservations to those expressed by
Dr Biggs.
(e)    The acceptance by medical experts of the treatment as being appropriate and likely to be effective: I do not understand Dr Biggs to says that ALIF is not an appropriate form of treatment in some cases involving injury to the lumbar spine, but rather that back pain, per se, is not an indication for ALIF. I have referred above to the evidence regarding the applicant having leg pain. Dr Coughlan opined that there was no suitable alternative treatment, and Dr Sheehy opined that the surgery was appropriate.
As Roche DP said in Diab, all treatment, especially surgery, carries a risk of a less than ideal result, and that is certainly the expectation of Dr Biggs in this case.
However, having considered the evidence, in particular that of Dr Coughlan, who as the treating specialist is in my view well-placed to provide an opinion as to the reasonable necessity of the surgery, I am persuaded on the balance of probabilities that the proposed surgery is reasonably necessary treatment.

159.The order is set out in the Certificate of Determination.

[2025] NSWPIC 118

31 March 2025