Biscu v State of New South Wales (South Eastern Sydney Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Biscu v State of New South Wales (South Eastern Sydney Local Health District) [2024] NSWPIC 142
APPLICANT:	Rebecca Biscu
RESPONDENT:	State of New South Wales (South Eastern Sydney Local Health District)
MEMBER:	Karen Garner
DATE OF DECISION:	25 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; accepted work injury to the lumbar spine; whether right L5 nerve root decompression, L4-5 pedicle screw fixation, and bone graft surgery requested by Associate Professor Steel on 11 March 2022 is reasonably necessary as a result of the accepted lumbar spine injury; Held – right L5 nerve root decompression, L4-5 pedicle screw fixation, bone graft surgery requested by Associate Professor Steel on 11 March 2022 is reasonably necessary as a result of the accepted lumbar spine injury.
DETERMINATIONS MADE:	The Commission determines: 1. Right L5 nerve root decompression, L4-5 pedicle screw fixation, bone graft surgery requested by Associate Professor Steel on 11 March 2022 is reasonably necessary as a result of the accepted lumbar spine injury. The Commission orders: 2. The respondent to pay, in accordance with s 60 of the Workers Compensation Act 1987, the costs of and incidental to right L5 nerve root decompression, L4-5 pedicle screw fixation, bone graft surgery requested by Associate Professor Steel on 11 March 2022.

STATEMENT OF REASONS

BACKGROUND

Rebecca Biscu (the applicant) was employed by the State of New South Wales (South Eastern Sydney Local Health District) (the respondent) as a registered nurse.
The respondent accepted a claim that the applicant sustained injury to her lumbar spine, as a result of the nature and conditions of her employment, with a date of injury of 24 April 2013 (the accepted injury).
The respondent accepted liability in respect of two surgeries which the applicant has undergone as a result of the accepted injury, being:
(a) right L4-5 microdiscectomy, performed by Associate Professor Steel (Dr Steel) on 29 November 2013 (first surgery), and
(b) right L4-5 anterior fusion (ALIF), performed by Dr Steel and Associate Professor Huilgol (A/Prof Huilgol) on 13 February 2019 (second surgery).
By these proceedings, pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), the applicant claims expenses of and related to further surgery, being right L5 nerve root decompression, L4-5 pedicle screw fixation, bone graft surgery requested by Dr Steel on 11 March 2022 (the requested surgery).
The respondent’s insurer declined liability for the requested surgery on grounds that it is not reasonably necessary as a result of the accepted injury pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

These proceedings were initiated by an Application to Resolve a Dispute (Application), filed on 10 January 2024. The respondent filed a Reply (Reply) on 29 January 2024.
At a conciliation and arbitration hearing before me on 13 March 2024, Ms Lyn Goodman, counsel, appeared for the applicant, instructed by Malley Lawyers. Mr Bill Loukas, counsel, appeared for the respondent, instructed by Bartier Perry Lawyers.
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.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the requested surgery is reasonably necessary as a result of the accepted injury pursuant to s 60 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) the Application and attached documents, and
(b) the Reply and attached documents.

Oral evidence

There was no application for leave to cross-examine and no oral evidence was given.

EVIDENCE

Lay evidence

Applicant

The applicant gave evidence by way of statements dated 12 May 2021 and
3 November 2023.
The applicant stated that she sustained injury to her lumbar spine as a result of the nature and conditions of her employment with the respondent as a registered nurse. The applicant detailed treatment that she has received for the injury, including: the first surgery; the second surgery; injections; physiotherapy; various medication; chiropractic treatment and consultations with pain management specialists.
The applicant stated that, notwithstanding such treatment, she continues to experience significant ongoing symptoms, which include: lower back pain, stiffness, weakness, numbness and pins and needles; right buttock pain, numbness and pins and needles; cramping and spasms; and leg and foot cramping, pain, altered sensations, weakness and restrictions (worse on the right). The applicant wishes to undergo the requested surgery which has been recommended by Dr Steel.

Treating medical evidence

A/Prof Timothy Steel, consultant neurosurgeon and spine surgeon

Dr Steel’s evidence is contained in numerous medical reports dated between
14 August 2013 and 15 September 2022.
By an operation report dated 4 December 2013, Dr Steel reported that on
29 November 2013, he performed right L4-5 microdiscectomy (the first surgery) to treat severe right L5 radiculopathy, namely nerve root compression due to very firm disc material herniating from the L4-5 disc.
Dr Steel noted an improvement in the applicant’s symptoms, particularly leg sciatic pain, following the first surgery, however he subsequently reported that the applicant continued to be symptomatic. By report dated 14 July 2014, Dr Steel stated that the applicant reported significant back pain, right leg pain and sensory disturbance in the L5 dermatome.
By report dated 3 September 2014, Dr Steel reported that an MRI scan performed on
1 August 2014 showed a small recurrent right L4-5 disc protrusion at the L4-5 level, which was causing mild irritation of the right L5 nerve root. Dr Steel recommended a right L4-5 foraminal steroid injection and, if that failed to give lasting relief, a repeat decompression.
By report dated 5 May 2015, Dr Steel reported that the applicant continued to report ongoing right leg symptoms and slight symptoms of the left leg. Dr Steel stated that the symptoms were not severe enough to warrant further surgery at that time.
By report dated 19 June 2015, Dr Steel reported that the applicant continued to report significant pain in an L5 distribution. He stated that, whilst the applicant’s symptoms had been improved since the first surgery, her activities were hampered by the pain, which radiated down the lateral thigh, lateral calf and to the top of the right foot and the big toe, consistent with L5 nerve root irritation. Dr Steel stated that progress MRI scan on
14 April 2015 showed a stable small right L4-5 recurrent disc protrusion measuring 3mm, which did not appear to cause severe nerve root compression but was obviously irritating the L5 nerve root. Dr Steel recommended that the applicant undergo repeat microdiscectomy with decompression of the right L5 nerve root.
By report dated 22 February 2016, Dr Steel reported that the applicant continued to report severe L5 distribution sciatic pain with pain down the lateral thigh and lateral calf with loss of sensation and burning pains in the foot. He reported that the applicant had weakness of ankle dorsiflexion and great toe dorsiflexion consistent with significant right L5 nerve decompression.
By report dated 17 October 2016, Dr Steel reported that the applicant continued to report significant right leg pain. Dr Steel noted that the most recent MRI scan performed on
10 May 2015 showed a recurrent disc bulge on the right side at the L4-5 level which compresses the L4 nerve root in the proximal foramen. Dr Steel stated that it did not appear to cause significant right L5 nerve root compression but lay in close approximation to it.
Dr Steel stated that he had a long discussion with the applicant about the treatment options. He stated that he did not feel that a spinal cord stimulator was an appropriate intervention because there was no evidence of nerve root damage. Dr Steel stated that repeat decompression with exposure of the right L4 nerve root in the foramen and proximal right L5 nerve root has a greater than 80% chance of alleviating the applicant’s symptoms. He noted that there was a small risk that repeat decompression may unstabilise the spine and that the applicant may subsequently require pedicle screw fixation, but stated that he would not perform a pedicle screw fixation at that point. He stated that the applicant wished to proceed with the surgery and he would seek approval for the surgery to occur as soon as possible.
By report dated 3 February 2017, Dr Steel reported that the applicant reported ongoing severe right lateral sciatic pain and that her symptoms were progressing. He stated that the applicant reported typical sciatic pain indicative of nerve root irritation/compression. He stated that her MRI scan showed disc protrusions at both the L4-5 and L5-S1 levels and some recess narrowing around the right L5 nerve root. He stated that if the applicant’s symptoms were going to resolve with the passage of time or conservative measures, they would have done so by then, however the applicant’s symptoms were deteriorating. He stated that it was not surprising that the applicant had mental health issues because she had been frustrated by her ongoing symptoms since they developed in April 2013. He stated that it would not be unreasonable for the applicant to be assessed by a mental health specialist, but that did not preclude the need for surgical intervention. Dr Steel did not accept that the applicant had developed a failed back syndrome. Dr Steel stated that he did not recommend a spinal fusion procedure. He stated that he did recommend that the applicant had a lumbar decompression which is a completely different operation to a spine fusion. He noted his previous report that further surgery may lead to instability that may culminate in a fusion operation, but at that point he did not recommend it. Dr Steel stated that it appeared that
Dr Casikar agreed that nerve root decompression surgery, specifically decompression laminectomy or minimally invasive decompression of the L4 and L5 nerve roots, would be appropriate as the applicant was complaining of sciatic pain. Dr Steel stated that he would again seek approval for the surgery previously requested.
By report dated 10 August 2017, Dr Steel reported that the applicant’s symptoms had somewhat improved and that they may not be sufficiently severe enough to warrant the risks of further surgery at that time. He recommended that the applicant undergo a further MRI. He noted that the applicant was scheduled to undergo surgery on 30 August 2017.
By report dated 19 August 2017, Dr Steel noted that a recent MRI “does not look that bad”. Dr Steel stated that progress lumbar spine MRI performed on 17 August 2017 showed stability and that the size of the broadbased disc protrusion at L4-5 has not altered. He noted that there was no high grade compression of the descending right L5 nerve root in the lateral recess. He noted that there is compression which is more marked on the left side where the descending left L5 nerve root runs and that there was no distal right L5 neural oedema.
Dr Steel stated that at that time, he was not sure that the symptoms were severe enough to warrant the risks of revision surgery and that there may be a role for more cortisone injections. He recommended that the surgery scheduled on 30 August 2017 should be deferred.
By report dated 6 September 2017, Dr Steel stated that the applicant had severe pain on examination on that day and that he was not entirely sure as to the pain generator. He noted that on examination, internal and external rotation of the applicant’s hip caused significant pain. He noted that the applicant reported marked pain around the lumbosacral area, sacroiliac area and down the right leg particularly around the right buttock and upper thigh and right calf. Dr Steel recommended that surgical intervention be deferred pending further investigation including a right hip MRI scan and a bone scan.
Dr Steel referred the applicant for investigation and assessment of her right hip, which did not indicate any particular hip issues.
By report dated 21 March 2018, Dr Steel reported that the applicant had significant low back pain, more marked on the right side, and symptoms in the right thigh. He stated that the applicant’s symptoms were relatively stable and she did not wish to have further surgical intervention at that time. Dr Steel noted that specialist opinion was that the right hip was not the cause of her symptoms. Dr Steel recommended that the applicant undergo further investigations.
By report dated 31 July 2018, Dr Steel reported that a lumbar spine CT scan performed on 17 July 2018 showed marked L4-5 facet joint degenerative changes with a lytic defect on the right side consistent with a post-traumatic pars fracture. He stated that the facet joint degenerative changes are very significant and he was almost certain that it was the source of the applicant’s ongoing back and leg pain. Dr Steel recommended that the applicant undergo physiotherapy and a right L4-5 facet joint injection. Dr Steel stated that if the right L4-5 facet joint injection brings significant alleviation of pain, he would recommend a minimally invasive L4-5 fusion “which should alleviate her symptoms”.
By report dated 3 September 2018, Dr Steel recommended that the applicant undergo further surgery. Dr Steel stated that a “simple repeat decompression will unstabilise the spondylolisthesis further”. Dr Steel stated that the “surgical recommendation is an anterior lumbar discectomy and fusion at L4-5 with distraction of the interbody space to decompress the L4 nerve roots. This should alleviate her back and right leg pain. There is no high grade nerve compression seen on the recent MR scan”.
By report dated 14 February 2019, Dr Steel reported that the applicant underwent L4-5 anterior discectomy (ALIF) surgery on 13 February 2019, performed by Dr Steel and
A/Prof Ravi Hullgoi in relation to a diagnosis of L4-5 disc degeneration and right L4 radiculopathy.
By reports dated 8 April 2019, 30 May 2019, 16 September 2019, Dr Steel reported that the applicant reported ongoing mechanical lumbar pain.
Dr Steel reported that a CT scan performed on 23 July 2019 showed stable fixation with slight subsidence of the cage but no evidence of instability. In a report dated
16 September 2019, Dr Steel reported that “Occasionally however patients with anterior interbody fusion require supplemental posterior fixation if the subsidence continues. Usually however the fusion matures around the 9 month mark. As it is only 7 months since surgery, hopefully symptoms will improve over the coming weeks”.
By report dated 18 November 2019, Dr Steel reported that the applicant continued to report moderate diffuse low back pain with paresthesia in both legs, brought on by activity, and a deep-seated itching in both legs. Dr Steel did not consider that the applicant’s reported ongoing back and leg symptoms were sufficiently severe enough to warrant further surgical intervention at that point. Dr Steel recommended the applicant undergo a supervised exercise program.
By report dated 27 November 2020, Dr Steel reported that the applicant continued to report pain in the right leg consistent with right L4 or L5 nerve irritation. Dr Steel reported that an MRI scan performed on 15 October 2020 showed: a central L4-5 disc bulge behind the interbody fusion which is stable; mild narrowing of the lateral recess at the L4-5 level that may be irritating the origin of the L5 nerve root; no high grade nerve compression of the right L4 nerve root but there was narrowing of the foramen making the L4 nerve root “slightly snug”. Dr Steel stated that “Given the ongoing nature of her symptoms, decompression of the right L4 and L5 nerve roots would be an option. While her symptoms are significantly better than since her fusion, she still reports significant pain which restricts her activities”.
Dr Steel stated that he would seek approval for decompression of the right L4 and L5 nerve roots. He stated that “As decompression of the foramina may involve removal of the facet joint, I would plan to perform a low profile pedicle screw fixation on the right side at the time of the surgery”.
By letter dated 11 December 2020, Dr Steel requested approval for the further surgery.
By report dated 4 November 2021, Dr Steel reported that:
“Rebecca Biscu came back for review on 4 November 2021. She continues to report significant right leg pain down the right lateral thigh and calf to the dorsum of the right foot. She has associated sensory disturbance.
On examination, she has mild weakness of ankle and great toe dorsiflexion.
The previous surgical recommendation of repeat decompression of the right L5 nerve root with pedicle screw instrumentation was declined by the insurer. In the last month symptoms have progressed further. This L5 distribution weakness was also present when Peter Bentivoglio examined her this year on 3 March 2021. It appears to have progressed since his examination.
It has been recommended that she have a spinal cord stimulator placed. At this point, I do not feel it is appropriate to offer a spinal cord stimulation. Spinal cord stimulation is a treatment aimed at neuropathic nerve pain. At this point there is no evidence of neuropathic nerve pain. It is more likely to be recurrent L5 nerve irritation / compression.
MRI scan from 15 October 2020 performed at St Vincent's Clinic shows there is lateral recess stenosis in the proximal foramen at the L4-5 level. There is a central disc bulge with some high signal in the midline. In the lateral recess, there is narrowing and thickened ligament which is presumably contributing to the compression. The surgery is aimed at decompressing this lateral recess area. The reason for performing fusion surgery is that decompression of this portion of the facet joint may render the facet joint unstable, in which case pedicle screw instrumentation on the right side at the L4-5 level should be performed to ensure there is no progressive instability. This will allow a more complete decompression of the right L4 and L5 nerve roots.
Recommendation
•      I would like her to have an updated MRI scan as it is now more than twelve months since the last scan.
•      On the last CT scan performed 11 March 2020, the interbody cage looked stable, and there was evidence of bone growth growing across the interbody cage. There is, however, subsidence of the cage into the vertebral body endplates, particularly into the inferior aspect of L4. Because of this subsidence, it is probable that the vertebra has collapsed back down onto the origin of the L5 nerve, causing the recurrent nerve irritation. Following her initial surgery, she reported alleviation of sciatic pain, which then recurred, in keeping with subsidence occurring.
•      Dr Peter Bentivoglio has recommended that repeat decompression surgery would be an option, and this is exactly what I propose to do.
•      The reason for the addition of posterior fusion is not because the spine is unstable at present, but there is a potential that it could be if enough decompression and bone removal needs to be performed at the time of the procedure.
•      I will seek approval again for the surgery.
•      At this point, I do not advocate a spinal cord stimulator as spinal cord stimulation is only used in cases of true neuropathic, ie. nerve damage, pain. If patients have nerve compression / irritation, decompression of the nerve usually will alleviate the symptoms. Whereas the spinal cord stimulator will not do so.”

By report dated 4 March 2022, Dr Steel reported that an MRI lumbar spine performed on
14 December 2021 showed right L4-5 lateral recess stenosis with compression of the right L5 nerve root. Dr Steel said that “We will seek approval for a right L5 nerve root decompression. As this will entail removing the majority of the right L4-5 facet joint, I will also place pedicle screws at L4-5 to stabilise this level”.
By letter dated 11 March 2022, Dr Steel sought approval for a right L5 nerve root decompression, L4-5 pedicle screw fixation, bone graft at an estimated cost of $20,137.60.
By report dated 29 April 2022, Dr Steel stated that the applicant continued to report significant recurrent right L5 distribution pain, her symptoms had not improved and developed as soon as she attempted any activity. Dr Steel stated that the MRI lumbar spine performed on 14 December 2021 “shows disc material abutting the right L5 nerve root in the lateral recess, inferior to the vertebral body of L5”. Dr Steel stated that his surgical recommendation “is a minimally invasive decompression of the right L5 nerve root with insertion of pedicle screw instrumentation”.
By report dated 11 May 2022, Dr Steel reported that the applicant’s symptoms were steadily progressing and she continued to report significant right L5 distribution pain which radiated down the lateral thigh and calf to the ankle, sensory disturbance involving the L5 dermatone with loss of sensation over the calf and dorsum of the right foot, which was not also affecting the left leg to a lesser degree. Dr Steel stated that on examination, the applicant demonstrated mild weakness of ankle dorsiflexion consistent with an L5 radiculopathy and knee jerks were mildly hyperreflexic. Dr Steel stated that the MRI scan showed narrowing of the lateral recesses behind the L4-5 fusion. Dr Steel stated that “There is no high grade nerve compression, but the right L5 nerve root will be tethered by the previous scar tissue from the surgery in 2013 and it is almost certainly being irritated in the lateral recess”.
In a report dated 25 May 2022, Dr Steel responded to the insurer’s questions and stated:
“1.     I came to this conclusion by direct inspection of the MRI scan which shows right L4-5 lateral recess narrowing with thickened ligament and bone causing compression and irritation of the right L5 nerve root. I case conferenced the MRI scan today with Dr Pascal Bou-Haider, senior neuroradiologist here at St Vincent's Clinic and the author of the original MRI report, who agrees with my observations and will be updating the MRI report with an addendum to reflect this.
2.     As per my response to question 1 above I have not made an error. The patient reports right L5 distribution pain with MRI evidence of irritation and compromise. The recommendation remains a repeat wide decompression of the L5 nerve root and insertion of pedicle screw instrumentation.
3.     As outlined previously the patient has had extensive conservative treatment with no improvement. Given the MRI findings based on observation of the scans and not reliance on the report, I disagree with further conservative treatment and recommend the surgery as detailed above.”
A report on an MRI lumbar spine with gadolinium performed on 14 December 2021 by
Dr Pascal Bou-Haidar stated:
“Findings:
There is no significant change from the prior study. Lumbar alignment is unchanged. No adjacent segment accelerated degenerative process above or below the anterior decompression and fusion at L4/5. The vertebral body heights are maintained. No site of acute marrow oedema. The lumbar canal remains widely patent. The conus tapers at L1.
At L4/5, the redundant appearance of the annulus and disc bulge posterocentrally are unchanged without causing central canal stenosis or lateral recess stenosis. There is mild to moderate bilateral facet arthrosis. The foramina remain widely patent.
At L5/S1, there is a mild disc bulge with no disc protrusion, canal or foraminal stenosis. Mild bilateral facet arthrosis.
At L3/4, there is a minimal disc bulge. No disc protrusion, canal or lateral recess stenosis. No foraminal stenosis.
At L1/2 and L2/3, there are no significant findings, apart from low grade facet arthrosis.
No evidence for discitis, osteomyelitis or arachnoiditis.
CONCLUSION
No evidence for neural impingement throughout the lumbar spine. No significant change since the study performed 14 months earlier.”
An addendum dated 25 March 2022 to the report on an MRI lumbar spine with gadolinium performed on 14 December 2021 by Dr Pascal Bou-Haidar stated:
“Further review of the images were made in consultation with A/Professor Tim Steel with additional clinical input.
At the L4/5 level there is some distortion of the descending nerve root sleeve of the right L5 nerve in the lateral recess with corresponding enhancement seen on the axial post-contrast imaging (see image 13, series 13, and images 9 and 10, series 9). This finding therefore raises the possibility of irritation or traction on the right L5 nerve via perineural fibrotic change.”
By report dated 29 August 2022, Dr Steel stated:
“I reviewed Rebecca Biscu on 29 August 2022. She continues to report significant right L5 symptoms. We have sought approval for further surgery from EML.
I corresponded via email on 17 May 2022 to Josh, her Case Manager, outlining my reasons for recommending further surgery. While the initial report on the MRI scan reported no nerve compression, case conference review with Dr Pascal Bou-Haidar was performed on 25 May 2022. I quote ‘Further review of the images was made in consultation with Associate Professor Tim Steel with an additional clinical input. At the L4-5 level there is some distortion of the descending nerve root sleeve of the right L5 nerve root in the lateral recess with corresponding enhancements seen on the axial post contrast imaging (see image 13, series 13 and images 9 and 10, series 9). This finding raises the possibility of irritation or traction on the right L5 nerve root via peroneal fibrotic change.’ This was electronically signed by Dr Pascal Bou-Haidar at 12:33 Wednesday 25 May 2022.
This supports the hypothesis that she continues to report L5 nerve root symptoms as a result of perineural fibrosis/compression/irritation. She continues to report typical L5 distribution pain down the posterolateral thigh and lateral calf to the ankle. Her symptoms have not improved in the last eight months. She continues to report weakness of ankle dorsiflexion consistent with an L5 radiculopathy.
Recommendation
• The surgical recommendation remains repeat decompression of the right L5 nerve root. Obviously, the situation is complex given the previous surgeries and the chronicity of pain.
• I will again seek approval for repeat decompression with a revision of the fusion as soon as possible.”
By further report dated 29 August 2022, Dr Steel stated that the supplementary report of
Dr Pascal Bou-Haidar “indicates [the applicant] has right L5 nerve irritation which supports the need for further surgery”. Dr Steel stated that the applicant continued to report right L5 distribution pain with weakness and, on examination, she had mild weakness of the ankle and great toe dorsiflexion of the right leg, consistent with a right L5 radiculopathy. Dr Steel stated that the diagnosis is a right L5 nerve compression and the prognosis is of ongoing symptoms until surgical treatment is carried out. Dr Steel sated that reasonably necessary treatment is decompression of the right L5 nerve root with the insertion of pedicle screw instrumentation. Dr Steel stated that the surgery is wide decompression of the right L5 nerve root, removing scar tissue, bone and ligament, potentially compressing the nerve causing pain. Dr Steel stated that would allow complete decompression of the nerve with stabilisation of the L4-5 segment posteriorly. Dr Steel stated that the applicant had an extensive period of time of non-surgical treatment without success. Dr Steel stated that the surgery was appropriate given there had been no improvement with extensive non-interventional therapy. He stated that the purpose and potential effect of the surgery is to alleviate the consequences of the lumbar spine injury. He stated that the proposed treatment is accepted amongst medical peers as appropriate and noted that there is radiological evidence of irritation/compression/inflammation of the right nerve root. Dr Steel said that, in general, if decompression of a nerve is carried out, the nerve compression pain is alleviated. Dr Steel stated that if surgery is not undertaken, the applicant would continue to report symptoms and they are likely to progress further.
Dr Steel stated that:
“At this point I did not feel a dorsal column stimulator is appropriate. There is radiological evidence that supports physical compression/irritation and until this is addressed it is unlikely a dorsal column stimulator would be beneficial. The role of spinal cord stimulation is for true neuropathic pain, ie. nerve damage pain. There is no evidence at this point that Rebecca has nerve damage pain which has a different quality to nerve compression pain. Neuropathic pain is superficial in the skin, usually associated with cutaneous allodynia, remains relatively constant and does not respond to any form of decompressive surgery. As there is radiological evidence of nerve compression/irritation this should be addressed prior to consideration of a spinal cord stimulator. A spinal cord stimulator does not alleviate the pain, it simply masks the pain, theoretically by altering nerve transmission. It is a more invasive surgery than repeat decompression, but I would not consider this until full decompression of the right L5 nerve root is performed. They are not mutually exclusive forms of treatment, but they are not performed in tandem. Either she has ongoing nerve irritation which could be addressed surgically, or she does not. It will be impossible to know this until after the surgery has been performed. If, after proven wide decompression of the L5 nerve root is carried out, she continues to report symptoms then a spinal cord stimulator would have a role. The most preferable surgery is alleviation of the compression, thereby treating the pathology, thereby alleviating the pain.”
By report dated 15 September 2022, Dr Steel reported that the applicant continued to report significant right leg pain with weakness and she was also experiencing more urinary incontinence.

Dr Ray Garrick, consultant neurologist

By report dated 12 March 2015, Dr Garrick reported that the applicant was having ongoing pain and symptoms following micro-discectomy on 29 November 2013 followed by right L4/5 periradicular injection nine months later because of a small amount of right L5 nerve irritation from recurrent disc bulge. Dr Garrick recommended that the applicant continue pain medication and undergo physiotherapy and a pain management program.
By report dated 2 April 2015, Dr Garrick stated that the applicant reported an inadequate response to a trial of ilio-lumbar block performed on 2 April 2015. Dr Garrick reported that the applicant’s pain pattern and examination findings were essentially unchanged with an L5 pattern of pain and a tendency for the right leg to give way. Dr Garrick recommended the applicant increased pain medication and undergo assessment by a pain clinic.
By report dated 7 May 2015, Dr Garrick reported that the applicant had significant back pain with restriction of lumbar movement and restrictions. He reported that her latest MRI scans showed a mild L4/5 disc bulge and some postoperative epidural changes but no obvious nerve root compression. Dr Garrick recommended that the applicant continue pain medication. Dr Garrick expressed the opinion that the applicant’s best chance of success will be with the multidisciplinary pain clinic. He stated that it was difficult to predict the success of fusion surgery.

Dr Raj Vinod Anand, registrar in pain medicine and rehabilitation

By report dated 19 June 2015, Dr Anand reported on a review of the applicant for persisting pain in her right leg, following an L5 nerve root decompression in 2013.

Professor Milton Cohen, senior staff specialist, pain medicine and rheumatology

Professor Cohen issued reports dated 4 September 2015, 13 November 2015,
28 January 2016 and 24 March 2016 regarding the applicant’s pain management and rehabilitation. By report dated 24 March 2016, Professor Cohen recommended ongoing conservative management and also requested a trial of spinal cord stimulation.

Dr Amir Kalanie, orthopaedic surgeon

By report dated 1 December 2017, Dr Kalanie expressed the opinion that the applicant’s hip was an unlikely source of the ongoing pain in her lower back and posterior buttock that radiates into her groin/thigh and down to her foot.

Dr Foo, general practitioner

The evidence includes various clinical records and reports of Dr Foo which recorded that applicant’s ongoing symptoms and Dr Steel’s recommendation that she undergo further surgery.

Emily Poole, physiotherapist

Ms Poole issued a number of reports in 2014 which reported on the applicant’s physiotherapy treatment.

Hospital records

The evidence includes clinical records of St Vincent’s Hospital, in particular Discharge Summaries dated 12 June 2013 and 2 December 2013.

Investigations

The evidence includes reports of numerous investigations. Most relevantly:
(a)    a CT lumbosacral spine performed on 10 June 2013, was reported by Dr Kartik Bhatia to show: multilevel degenerative disease of the lumbosacral spine; right paracentral disc protrusions as L3-4 and L4-5 with narrowing of the right lateral recesses, with potential compression of the right L4 nerve root and likely compression of the right L5 nerve root;
(b)    an MRI lumbar spine performed on 8 August 2013, was reported by Dr Joga Chaganti to show: a diffuse annular bulge at L4-5 causing moderate degree thecal sac compression and compression of L5 roots bilaterally;
(c)    a CT guided injection at right L5 performed on 1 October 2013, was reported by Dr Pascal Bou-Haider;
(d)    an MRI lumbar spine performed on 1 August 2014, was reported by Dr Bou-Haidar to show: posterior central disc protrusion at L4/5 which may represent small recurrent disc or residual disc protrusion, however it does not contact or compress the descending right L5 nerve root in the lateral recess; and mild right lateral recess expected peridural scarring post-microdiscectomy accompanied by distal right L5 neural oedema/neuritis;
(e)    a CT guided right foraminal L4/5 injection performed on 17 September 2014, was reported by Dr Sebastian Fung to result in transient discomfort down the right leg which corresponded well to the distribution of the applicant’s usual symptoms, which abated following termination of the injection;
(f)    an MRI lumbar spine performed on 14 April 2015, was reported by Dr Bou-Haidar to show: stable post-operative changes; no evidence for neural impingement; stable shallow right posterolateral recurrent disc protrusion at L4/5 without contact of adjacent L4 or L5 nerve roots;
(g)    an MRI lumbosacral spine performed on 10 May 2016, was reported by Dr John Ly to show: stable appearance of the lumbosacral spine, particularly at the L4/5 level status post right sided hemilaminectomy and microdiscectomy; residual broadbased L4/5 posterior central and far lateral paracentral shallow disc protrusion and annular fissure were stable without impingement of the right L5 nerve root; the right L4 nerve root in the foramen and in the lateral recess area was intact; expected post-operative changes in the right epidural space at L4/5; stable small to moderate sized broadbased posterior central disc protrusion and annular tear at L5/S1;
(h)    an MRI lumbar spine performed on 17 August 2017, was reported by Dr Bou-Haidar to show: stable appearance of degenerative spondylosis and the size of the broadbased posterocentral to posterolateral disc protrusion at L4/5; no compromise of the descending right L5 nerve root in the lateral recess; left lateral recess narrowing appeared stable with persistent contact of the descending left L5 nerve root; stable mild right L4/5 foraminal stenosis without compression of the exiting right L4 nerve;
(i)    a bone scan performed on 31 October 2017, was reported by Dr Lees to show: mild disc endplate degenerative uptake right L4/5; low-grade facet joint uptake bilaterally at L3/4, L4/5 and left 2/3;
(j)    an MRI lumbar spine performed on 11 February 2019, was reported by Dr Bou-Haidar to show: stable size and appearance of the disc protrusions at L4/5 and L5/S1 and accompanying degree of foraminal and lateral recess narrowing; minimal progression of facet arthrosis in the mid to lower lumbar spine; no new disc protrusions;
(k)    a CT lumbar spine performed on 14 February 2019, was reported by Dr Lees to show: post L4/5 anterior lumbar intervertebral fusion;
(l)    a CT lumbar spine performed on 23 July 2019, was reported by Dr Garry Schaffer to show: slight subsidence of the interbody cage since the CT lumbar spine performed on 14 February 2019;
(m)     a CT lumbar spine performed on 11 March 2020, was reported by Dr Schaffer to show: no significant alteration in imaging findings over the last eight months at the L4/5 ALIF;
(n)    an MRI lumbar spine performed on 14 December 2021, was reported by Dr Bou-Haidar to show: no evidence for neural impingement through the lumbar spine and no significant change since the study performed 14 months earlier, and
(o)    an addendum dated 25 May 2022 to Dr Bou-Haidar’s report of the MRI lumbar spine performed on 14 December 2021, stated:
“Addendum
Further review of the images were made in consultation with A/Professor Tim Steel with additional clinical input.
At the L4/5 level there is some distortion of the descending nerve root sleeve of the right L5 nerve in the lateral recess with corresponding enhancement seen on the axial post-contrast imaging (see image 13, series 13, and images 9 and 10, series 9). This finding therefore raises the possibility of irritation or traction on the right L5 nerve via perineural fibrotic change.”

Independent medical evidence

Dr Peter Giblin, orthopaedic surgeon

Dr Giblin provided an independent medical opinion, qualified by the applicant.
By reports dated 29 June 2015, Dr Giblin diagnosed a soft tissue injury to the applicant’s low back, with the main contributing factor being the nature and conditions of the applicant’s work. Dr Giblin recommended conservative treatment. Dr Giblin expressed the opinion what further surgical considerations were not mandatory at that time, but could not be excluded in the future, in particular repeat lumbar discectomy. Dr Giblin assessed 15% total WPI in respect of the applicant’s lumbar spine.
By report dated 14 October 2019, Dr Giblin again expressed the opinion that further surgical considerations were not mandatory at that time, but could not be excluded in the future, in particular a revision lumbar spinal operation. Dr Giblin assessed 24% total WPI in respect of the applicant’s lumbar spine.

Dr John Davis, occupational medicine

Dr Davis provided an independent medical opinion, qualified by the applicant.
By report dated 10 November 2021, Dr Davis diagnosed lumbar disc injury with impingement and right sided radiculopathy. Dr Davis stated that treatment to date was appropriate and deemed necessary as a result of the work injury. In relation to further treatment, Dr Davis stated that:
“I consider that the surgical treatment proposed by Dr Steel is reasonably appropriate treatment, given Ms Biscu's continuing pain, impairment and disability.
It would be hopeful that the proposed treatment of decompression and excision of the facet would result in reduction in her symptom levels, albeit she would remain with marked loss of her functional capacity. Reduction of the compressed nerves would be expected to at least reduce her radiculopathy.
It is not possible to determine whether or not there would be a reduction in her degree of disability which would depend upon the effectiveness and outcome of the surgery proposed.
In the absence of surgical intervention and further degenerative changes in the discs above and below the fused level, it is expected that there would be a slow increase in intensity of symptoms over time and associated reduction in her mobility. I do not anticipate that she would require a wheelchair although she may gain assistance from a walking stick.
Consideration for pain management treatment is also a reasonable alternative, as is insertion of a dorsal spinal cord stimulator. Certainly, if the surgery does not result in significant improvement it would be more than reasonable that she consider a dorsal spinal cord stimulator.
Given that there are alternative proposals for future treatment, I consider that whichever treatment is undertaken would be deemed necessary.
She has already attended a pain clinic without any significant improvement although I believe that a further program should be undertaken prior to any form of surgical intervention.
With the failure of the pain management program it would be quite reasonable to consider decompressive surgery or a spinal cord stimulator.”

By supplementary report dated 21 December 2021, Dr Davis noted that Dr Steel stated that he did not feel it was appropriate at that time to offer spinal cord stimulation because there was no evidence of neuropathic pain for which spinal cord stimulation is an accepted treatment. Dr Davis stated that the applicant described her symptoms as ‘shooting’, which was consistent with a common symptom of neuropathic pain. Considering the findings of the most recent scans, Dr Davis agreed with Dr Steel’s opinion that initial further treatment should be directed to repeat surgical decompression of the right L5 nerve root with pedicle screw instrumentation and the addition of a posterior fusion. Dr Davis stated that should the applicant continue to suffer significant symptomatology relating to neuropathic pain post-operatively, then he believed that a trial of a spinal cord stimulator is indicated.

Dr Peter Bentivoglio, neurosurgeon

Dr Bentivoglio provided an independent medical opinion, qualified by the respondent.
By report dated 14 August 2018, Dr Bentivoglio diagnosed persistent discogenic back pain from degenerative disease in the L4/5 disc as well as chronic neuropathic right leg pain from L5 nerve root injury. Dr Bentivoglio recommended that the applicant trial ongoing physiotherapy and hydrotherapy treatment. If that was unsuccessful then, Dr Bentivoglio recommended that the applicant undergo facet joint injections and consider fusion at the L4/5 as recommended by Dr Steel. Dr Bentivoglio also recommended that the applicant be reviewed by a psychiatrist or psychologist.
By report dated 2 June 2020, Dr Bentivoglio stated a diagnosis of lower back pain and right leg neuropathic pain with some L5 radiculopathy. Dr Bentivoglio expressed the opinion that the applicant had an injury to the disc at the L4/5 level which was causing L5 nerve root compression and right -sided sciatica, and which was causally related to her work environment. Dr Bentivoglio assessed 27% total WPI.
By report dated 3 March 2021, Dr Bentivoglio noted that the applicant had undergone an L4/5 discectomy in 2013 and an L4/5 anterior fusion in February 2019. Dr Bentivoglio diagnosed multilevel degenerative disease in the lumbar spine with right leg neuropathic pain and mild L5 radiculopathy on the right side.
Dr Bentivoglio stated:
“Since my last review on 2 June 2020, where I said she needed to have a CT scan of her lumbar spine to check on the fusion at the L4/5 level and an MRI scan to see if there is any significant neurological compression or compromise, the CT scan was not done because Dr Steele [sic] felt that the fusion was solid when a CT scan was done14 months after the surgery in the form of the anterior fusion at L4/5. He said this showed the fusion was solid and no further CT scans were done. However, the MRI scan on 15 October 2020 shows facet joint disease, no lateral recess compression of the L5 nerve root, mild right L4-5 foraminal stenosis. At L5/S1, there was a mild disc bulge and an annular tear with a small central disc bulge but no nerve root compression and at L3/4, there was a minor disc bulge with facet joint disease. So, the new MRI scan does not show any evidence of neurological compression or compromise, as is stated in the conclusion where it says, ‘she has mild disc desiccation at L3/4 and L5/S1 with an annular defect at L5/S1 and a small disc bulge at L5/S1.’ Again, this has not progressed since the prior study. There is no nerve root compression. At L4-5, there had been an anterior fusion, but no collection or discitis seen.
...
On direct questioning now, she tells me that the low back pain is 3-4/10, the right leg pain is 5-6/10 and there is altered sensation in the top of her foot, which was present before the L4-5 anterior fusion. They were all as a consequence of the anterior fusion and there has been about a 50% improvement in her symptoms. She still has some left leg pain now which she rates as 2/10.”
In relation to the requested surgery, Dr Bentivoglio stated:
“Dr Steele [sic] is now advocating a re-decompression at the L4/5 level to try and help the neuropathic pain in her right leg, followed by a fusion post L4-5 fusion in someone who has already a fusion at the L4/5 level and he wants to do this from behind. He wants to fuse it from behind because perhaps he is not convinced that the fusion anteriorly is solid.
...
When I reviewed the new MRI scan and the previous CT scan which was done 14 months after the surgery, it is felt that the fusion is sold [sic] at the L4/5 level. So why a posterior fusion is being contemplated, is unclear to me. The MRI scan does not show any evidence of nerve root compression on the right side even though she does appear to have a mild radiculopathy in her right leg. It is probably worthwhile doing a re-decompression of the right L5 nerve root. There did not appear to be any compression of the L4 nerve root in the L4/5 foramen.
...
As I have said, the proposed surgery is all related to the original workplace injury. This will be the third such operation for this injury. The expected outcome from the surgery is to help the leg pain. I do not believe it will significantly help her back pain. I think the chances of it helping her leg pain are less than 60% chance.
...
There are alternatives to surgery which could be trialled and that is referral to a pain clinic and consideration for dorsal column stimulation.
...
The prognosis is very guarded indeed. She has had the neuropathic pain in her right leg now for eight years so hoping to relieve that is optimistic, especially when the MRI scan does not show any relevant nerve root compression. Doing a fusion at the L4/5 level posteriorly when she already has a successful anterior fusion according to Dr Steele, I do not see the reason for that. Perhaps Dr Steele is not convinced that the fusion anteriorly is solid.”
By report dated 8 February 2022, Dr Bentivoglio stated:
“I have reviewed the new MRI scan which was done on 14 December 2021 which concludes that there is no evidence of neural impingement throughout the lumbar spine and that there was no significant change from the MRI scan performed 14 months earlier. It is stated that the L4/5 foramina are widely patent so there is no need to decompress the L4 nerve root.
...
If he was to decompress the L4 nerve root this would entail a radical facetectomy at L4/5, but I do not believe that needs to be done as the MRI scan does not show any evidence of narrowing of the L4/5 foramen, and the fusion is meant to be solid from the previous anterior fusion that he has done in 2019. The recent MRI scan does not show any evidence of L4 or L5 nerve root compression, so I do not believe doing a re-decompression is going to afford her any benefit.
...
I still maintain that the chances of the proposed surgery assisting in helping her leg pain on the right side is less than 60% as the new MRI scan done on 14 December 2021 does not show any evidence of L5 or L4 nerve root compression.
...
I think it is worthwhile for her to be referred to a pain management specialist to see if he feels that he can help the patient because I do not believe further surgery that is being planned by Dr Steel will be of any benefit.
...
The cost of such treatment by the pain specialist depends upon what treatment he is offering her.
...
I do not believe that medical experts would say that she needs a re-fusion because the fusion at L4/5 is solid or that she needs a re-decompression because the MRI scan shows no evidence of neurological compression or compromise. Further surgery is not going to afford her any benefit.
...
I do agree with Dr Davis that the patient needs to undergo further pain management before undertaking any further surgery. In fact, I do not believe any further surgery is going to afford her any benefit.
...
These questions should be directed to the pain management specialist. Unfortunately, spinal cord stimulation does have its limitations. The availability of such treatment is simple. Referral to an appropriate pain specialist will be all that is necessary. The cost of the proposed treatment is similar to the proposed re-do decompression and fusion. Unfortunately, spinal stimulation usually only works for 1-2 years, and it needs a trial and if the trial fails then spinal stimulation will not be of any benefit.
...
I do not believe that further surgery is necessary. I believe she should be referred to a pain clinic/pain management specialist to assess what treatment they can afford her.
...
Apart from the pain clinic referral, there is no other recommended treatment for her current symptomatology and the treatment is quite available.”
By report dated 25 March 2022, Dr Bentivoglio responded to a number of questions:
“1.     Whether you agree with A/Prof Steel that the worker needs the proposed Right L5 nerve root decompression, L4-5 pedicle screw fixation, bone graft?
The fact that the repeat MRI scan following her L4/5 anterior fusion in 2019 showed that there is a right L4/5 lateral recess stenosis and compression of the L5 nerve root indicates to me that she needs to have further decompressive surgery. Obviously the L4/5 anterior fusion failed to decompress the L5 nerve root and that is why it needs
to be re-done from behind
In so doing, he recommends that he may have to remove most of the facet joint on the right side and that is why he wants to do the posterior fusion from behind at L4/5 to further strengthen that region.
2.     Whether you maintain that the chances of the proposed surgery assisting with the worker’s leg pain was less than 60%.
I do believe that the surgery may help the leg pain but I doubt if it will do anything significant to help the low back pain. I would give her a 70-80% chance of improvement in the leg pain but the back pain I do not believe will be helped.
3.     Do you maintain your opinion that further pain management is required prior to proceeding with the recommended surgery in A/Prof Steel’s report?
It is probably reasonable to undertake the surgery that Dr Steel recommends and if that helps well and good, if it does not then she should be referred to a pain clinic for ongoing management.”
By report dated 4 July 2022, Dr Bentivoglio responded to a number of questions:
“1.     The worker’s condition and symptoms since your last examination.
She still has the same symptoms that she had before, low back pain going into both legs, right side worse than left. This is the same as it was when I last saw her about four months ago. She really has not changed clinically since that time.
2.     Your opinion of the findings of the MRI of the lumbar spine performed on 14 December 2021 (from viewing the physical scan).
My findings on the MRI scan dated 14 December 2021 really just show some perineural scarring around the L5 nerve root on the right side related to previous surgery. Any further surgery on that nerve root is only going to cause more perineural scarring and potentially worsening of her condition.
The MRI scan states that she does have some lateral recess narrowing corresponding to enhancement in the post-axial contrast scan, which means that this is perineural scarring, not a recurrent disc prolapse.
3.     Do you agree with A/Prof Steel that the MRI scan shows right L4-5 lateral recess narrowing with thickened ligament and bone causing compression and irritation of the right L5 nerve root? Please provide your reasoning.
I do not agree with A/Prof Steel – the MRI scan does show some lateral recess narrowing secondary to perineural scarring with some irritation of the L5 nerve root. Repeat surgery will just cause more perineural scarring.
4.     Whether you agree with A/Prof Steel that the worker needs the proposed right L5 nerve root surgery with insertion of pedicle screw instrumentation? ...
If she does have the proposed right perineural decompression, this will only result in further scarring around the nerve with potential worsening of her condition. I do not believe she needs the pedicle screw instrumentation because she already has a solid fusion at the L4/5 level from an anterior approach.
What I do believe she needs is psychiatric counselling because she is very depressed, and this depression is making her ability to cope with her problems worse.
5.     Whether you maintain that the chances of the proposed surgery assisting with the worker’s leg pain is 70-80% in the circumstances and having regard to the previously failed surgery.
I do not believe that the chances of the proposed surgery in assisting her leg pain is 70-80%, particularly as the previous surgery has failed and specifically as the problem with the right L5 nerve root is perineural scarring, as clearly stated by the MRI scan.
6.     In your opinion is further Pain management is required prior to proceeding with the proposed right L5 nerve root surgery with insertion of pedicle screw instrumentation? ...
In my opinion, further pain management is required. I think she needs to see a psychiatrist because I think she is very depressed, and she needs some antidepressant medication. Pain clinic management may enable her to have this counselling. Spinal stimulation may well be an option, but only if the surgery goes ahead that A/Prof Steel proposes, if and when it fails.”

SUBMISSIONS

The submissions of the parties are recorded and I do not propose to recount them in detail in these reasons.
Mr Loukas’ submissions on behalf of the respondent may be summarised as follows:
a.     Mr Loukas stated that the only issue requiring determination is whether the requested surgery is reasonably necessary;
b.     Mr Loukas submitted that Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) sets out the matters that the Commission is required to consider in determining whether the requested surgery is reasonably necessary;
c.     Mr Loukas examined the medical evidence, specifically Dr Bentivoglio’s various reports. Mr Loukas submitted that Dr Bentivoglio changed his opinion from time to time consistent with a reasoning mind having regard to the applicant’s complaints and the diagnostic information. Mr Loukas submitted that
Dr Bentivoglio conceded that the requested surgery was probably reasonably necessary without having viewed the physical MRInscan. Mr Loukas submitted that Dr Bentivoglio changed his opinion and did not support the requested surgery after he viewed the physical MRI scan which did not show any compression and just showed perineural scarring, because he believed that the surgery could potentially worsen the applicant’s condition;
d.     Mr Loukas submitted that the applicant’s medical evidence has not addressed the concerns raised by Dr Bentivoglio regarding the perineural scarring and the pedicle screw;
e.     Mr Loukas submitted that the requested surgery is a very serious procedure, because two prior surgeries have not worked;
f.     Mr Loukas submitted that there are reasonable alternatives to the requested surgery, namely pain management and psychological counselling;
g.     Mr Loukas stated that the insurer paid for both prior surgeries but is reasonably not convinced that the requested surgery is not reasonably necessary in the circumstances;
h.     Mr Loukas referred to various evidence and submitted that, having regard to the evidence as a whole, the Commission should find that the requested surgery is not reasonably necessary, and
i.     accordingly, there should be an award in favour of the applicant.
Ms Goodman’s submissions on behalf of the applicant may be summarised as follows:
(a)    Ms Goodman confirmed that the requested surgery which is the subject of these proceedings is right L5 nerve root decompression, L4-5 pedicle screw fixation, bone graft surgery requested by Dr Steel on 11 March 2022;
(b)    Ms Goodman submitted that the insurer has not acted reasonably as a model litigant in disputing the requested surgery when it’s own independent medical expert, Dr Bentivoglio, accepted that it is reasonably necessary;
(c)    Ms Goodman submitted that Dr Bentivoglio’s final report does not substantially change Dr Bentivoglio’s earlier expressed opinion that the requested surgery is reasonably necessary;
(d)    Ms Goodman reviewed the various medical evidence, particularly the reports of the independent medical experts and the reports of Dr Steel;
(e)    Ms Goodman submitted that the addendum to the MRI lumbar spine undertaken on 14 December 2021 made by the senior radiologist with the input of Dr Steel showed pathology which confirmed the hypothesis that the applicant’s symptoms were a result of L4/5 nerve root pain and not neuropathic pain;
(f)    Ms Goodman submitted that the medical evidence as a whole does not support a finding that a nerve cord stimulator is a reasonable alternative to the requested surgery. Ms Goodman submitted that evidence demonstrates that the applicant already attended a pain clinic without any significant improvement in her pain. Further Ms Goodman submitted that a spinal cord stimulator is not appropriate as there is no evidence that the applicant has neuropathic pain for which it is accepted treatment;
(g)    Ms Goodman submitted that the reports of Dr Steel are very thorough and provide cogent evidence which support a finding that the requested surgery is reasonably necessary, and
(h)    Ms Goodman submitted that the Commission should give less weight to
Dr Bentivoglio’s evidence and should instead prefer and accept the applicant’s medical evidence and find that the requested surgery is reasonably necessary.

DISCUSSION AND FINDINGS

Legislation and case law

Section 60 of the 1987 Act relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, because 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).”
In Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab), Roche DP, referring to the decision in Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 (Rose), set out the test for determining if medical treatment is reasonably necessary as a result of a work injury:
“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] NSWCC2; (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 tis place in the usual medical armoury of treatments for the particular condition.”
Roche DP also noted that the Commission has generally referred to and applied the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233 (Bartolo):
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”

Roche DP found:
“In the context of s 60 the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a)     the appropriateness of the particular treatment;
(b)     the availability of alternative treatment, and its potential effectiveness;
(c)     the cost of the treatment;
(d)     the actual or potential effectiveness of the treatment, and
(e)     the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”

Consideration

The accepted injury and ongoing symptoms

There is no dispute as to the accepted injury. The respondent accepts that the applicant sustained a work injury to her lumbar spine, with a date of injury of 24 April 2013.
The applicant’s evidence is that, notwithstanding various treatment including the first surgery and the second surgery, she continues to experience significant and debilitating ongoing pain and symptoms, particularly pain and altered sensations in her lower back, right buttock, legs and feet (with the right side being worse).
The applicant’s evidence regarding her ongoing symptoms is significantly supported by the various treating and independent medical evidence.

Treatment

The applicant seeks compensation for the cost of the requested surgery, being right L5 nerve root decompression, L4-5 pedicle screw fixation, bone graft surgery requested by Dr Steel on 11 March 2022.
The requested surgery is clearly “medical or related treatment (other than domestic assistance)” within the meaning of s 60(1)(a) of the 1987 Act.

Cost of the treatment

The Application states that the total estimated expenses of the requested surgery is $25,000.
In a surgery quote dated 17 October 2023, Dr Steel estimated that the requested surgery would cost $20,137.60.
There is no evidence which challenges the quantum of the estimated expenses.
Mr Loukas indicated that the respondent does not take issue with the quantum of the estimated expenses.

Appropriateness of the treatment to treat the accepted injury

The evidence of the applicant’s treating surgeon, Dr Steel, is that the requested surgery is reasonably necessary and appropriate to treat the accepted injury.
Dr Steel explained his view that the requested surgery was reasonably necessary and appropriate to treat the accepted injury because of the applicant’s ongoing symptoms, which have progressed over time, particularly significant right leg pain and associated sensory disturbance and L5 distribution weakness.
Dr Steel stated that there is radiological evidence that supports physical nerve root compression/irritation.
Dr Steel noted that the MRI scan from 15 October 2021 showed lateral recess stenosis in the proximal foramen at the L4-5 level, with a central disc bulge with some high signal in the midline. Dr Steel explained that in the lateral recess, there is narrowing and thickened ligament which he believed was contributing to the compression.
Dr Steel also noted that the MRI scan from 14 December 2021 showed disc material abutting the right L5 nerve root in the lateral recess, inferior to the vertebral body of L5.
Dr Steel acknowledged that the MRI scan did not show high grade nerve compression but he explained that the right L5 nerve root will be tethered by the previous scar tissue from the first surgery and it is almost certainly being irritated in the lateral recess.
In May 2022, Dr Steel reported that he spoke with Dr Bou-Haider, the senior neuroradiologist who authored the MRI scan performed on 14 December 2021. Dr Steel reported that Dr Bou-Haider agreed with Dr Steel’s observations and that resulted in Dr Bou-Haider including an addendum on that MRI scan report to the effect that:
“At the L4/5 level there is some distortion of the descending nerve root sleeve of the right L5 nerve in the lateral recess with corresponding enhancement seen on the axial post-contrast imaging... This finding therefore raises the possibility of irritation or traction on the right L5 nerve via perineural fibrotic change.”
Dr Steel explained that apparent subsidence of the cage into the vertebral body endplates, particularly into the inferior aspect of L4, meant that it was probable that the vertebra had collapsed back down into the origin of the L5 nerve, causing the recurrent nerve irritation.
Dr Steel stated that the requested surgery is the most appropriate treatment to treat the applicant’s pathology. Dr Steel stated that the requested surgery was aimed at decompressing the lateral recess area. Dr Steel expressed the opinion that the applicant’s nerve compression pain would be alleviated by the nerve decompression surgery.
Dr Steel explained that the reason for the addition of the posterior fusion is not because the spine is unstable at present, but because there is a potential that it could become unstable if enough decompression and bone removal needs to be performed at the time of the requested surgery. Dr Steel stated that the fusion surgery was appropriate because decompression of that portion of the facet joint may render the facet joint unstable, in which case pedicle screw instrumentation on the right side at the L4-5 level should be performed to ensure there is no progressive instability, which will allow a more complete decompression of the right L4 and L5 nerve roots.
Dr Steel stated that the requested surgery is a minimally invasive procedure to decompress the right L5 nerve root with insertion of pedicle screw instrumentation.
Dr Steel stated that the applicant’s symptoms would continue, and likely progress further if the requested surgery is not performed.

Availability of alternative treatment and its potential effectiveness

It is apparent from the evidence that the applicant has undergone a number of alternative treatments to date, which have been largely unsuccessful to treat her ongoing pain and symptoms. These have included injections, physiotherapy, hydrotherapy and pain management treatment.
I note there is some inconsistency in Dr Davis’ reports in relation to the availability and appropriateness of alternative treatments. In his initial report dated 10 November 2021,
Dr Davis expressed the opinion that pain management treatment and a dorsal spinal cord stimulator were reasonable alternatives, particularly if the requested surgery did not result in significant improvement. Dr Davis noted that the applicant had already attended a pain clinic without significant improvement. Somewhat inconsistently, Dr Davis stated that a further pain management program should be undertaken prior to any further surgical intervention, but he also stated that, with the failure of the pain management program, it would be reasonable to consider decompressive surgery or a spinal cord stimulator. However, in his supplementary report dated 21 December 2021, Dr Davis agreed with Dr Steel’s opinion that initial further treatment should be directed to repeat surgical decompression of the right L5 nerve root with pedicle screw instrumentation and the addition of a posterior fusion. In that report, Dr Davis stated that a trial of a spinal cord stimulator is indicated if the applicant continued to suffer significant symptomatology relating to neuropathic pain post-operatively.
There appears to be some inconsistency in Dr Bentivoglio’s evidence in relation to alternative treatment. In his report dated 25 March 2022, Dr Bentivoglio expressed the opinion that the applicant should be referred to a pain clinic for ongoing management if the requested surgery was not beneficial.
However, in his report dated 4 July 2022, Dr Bentivoglio recommended that the applicant should undergo psychological treatment and further pain management prior to any further surgery. Dr Bentivoglio also stated that spinal stimulation may be an option only if the requested surgery is undertaken and fails.
Dr Steel did not agree that spinal cord stimulation was an appropriate alternative treatment at the present time. Dr Steel explained that spinal cord stimulation is a treatment aimed at true neuropathic (ie. nerve damage) pain. At this point, Dr Steel did not see evidence of neuropathic nerve pain. Dr Steel believed that the applicant’s pain was most likely the result of recurrent L5 nerve irritation/compression, which would not be alleviated by spinal cord stimulation.
Dr Steel stated that unless the applicant’s nerve irritation/compression is addressed by the requested surgery, it is unlikely a dorsal column stimulator would be beneficial or appropriate. Dr Steel stated that a dorsal column stimulator simply masks pain by altering nerve transmission and it does not alleviate pain. He stated that it is a more invasive surgery than a repeat decompression and, whilst it is not mutually exclusive to repeat decompression, they are not performed in tandem. Dr Steel stated that a dorsal column stimulator should be performed only if symptoms persist after the repeat decompression.
Dr Steel stated that the repeat decompression is the most preferable surgery because it treats the pathology and alleviates the pain.

The acceptance by medical experts of the treatment as being appropriate and likely to be effective

Dr Giblin did not believe that further surgical considerations were mandatory in October 2019.
Dr Davis supported the requested surgery. Dr Davis expressed the opinion that the requested surgery is reasonably necessary and appropriate treatment having regard to the applicant’s continuing pain, impairment and disability. Dr Davis expressed the opinion that the repeat decompression would likely reduce her radiculopathy and her symptom levels, although he acknowledged that the applicant would likely remain with a marked loss of her functional capacity. Dr Davis expressed the opinion that if the applicant did not undergo the requested surgery, her symptoms and associated reduction in mobility would gradually increase in intensity over time.
There appears to be some inconsistency in Dr Bentivoglio’s evidence. In his report dated
25 March 2022, Dr Bentivoglio expressed the opinion that further decompressive surgery was needed and that the requested surgery was reasonable. Dr Bentivoglio estimated that the requested surgery would give 70% to 80% chance of improvement in the applicant’s leg pain although it was unlikely to improve the applicant’s back pain.
However, in his report dated 4 July 2022, after viewing the physical MRI scan of the lumbar spine performed on 14 December 2021, Dr Bentivoglio appears to have taken a very different view. In that report Dr Bentivoglio expressed the view that right L5 decompression would only result in further scarring around the nerve and potentially worsen the applicant’s condition. Further, Dr Bentivoglio stated that he did not believe that the changes of the requested surgery in assisting the applicant’s leg pain was 70% to 80% because the previous surgery had failed and because the problem with the right L5 nerve root is perineural scarring. Dr Bentivoglio also stated that he did not believe the applicant needs the pedicle screw instrumentation because the applicant already has a solid fusion at the L4/5 level from an anterior approach.
Dr Bentivoglio has not provided any detailed explanation for his inconsistent opinions, although it may be implied that it was a result of him viewing the physical scan of the lumbar spine performed on 14 December 2021.
The medical evidence in relation to the requested surgery is somewhat challenging.
I note Dr Bentivoglio’s concern that the MRI scan dated 14 December 2021 just shows some perineural scarring around the L5 nerve root on the right side related to previous surgery and that any further surgery on that nerve root is only going to cause more perineural scarring and potentially worsening of the applicant’s condition. However, Dr Steel explained that the perineural fibrosis/compression/irritation was likely a source of irritation or traction on the L5 nerve root which caused the applicant’s persistent L5 nerve root symptoms Dr Steel acknowledged the complexity of the situation given the previous surgeries and the chronicity of pain. Dr Steel explained that the requested surgery would involve wide decompression of the right L5 nerve root, removal of scar tissue, bone and ligament, potentially compressing the nerve causing pain, and should alleviate the applicant’s nerve compression pain.
I also note Dr Bentivoglio’s opinion that the applicant does not require the pedicle screw implementation because she already had a solid fusion at the L4/5 level from an anterior approach. However, it is apparent from Dr Steel’s reports that the reason for L4/5 pedicle screw fixation to be performed posteriorly is not because the L4/5 fusion is not solid, but rather because the decompression may render it unstable and it would allow a more complete decompression.
I note that Dr Steel has been closely involved in the treatment, management and investigation of the accepted injury since 2013. Over the years between August 2013 and September 2022, Dr Steel provided numerous reports which provide considerable detail about the applicant’s various symptoms and the history of investigations and treatment of the accepted injury over that time period. It appears from Dr Steel’s reports that he adopted a reasonably balanced and conservative approach to surgical intervention to treat the accepted injury over that time period: whilst Dr Steel performed both the first surgery and the second surgery, he also recommended various investigations and considered alternative treatment options and expressed the opinion that the applicant’s symptoms did not warrant particular surgical intervention at various times. Further, I note that Dr Steel did change his position regarding proposed further surgery: in November 2020, Dr Steel requested approval for decompression of both the right L4 and L5 nerve roots and also pedicle screw fixation performed posteriorly; however the requested surgery, requested by Dr Steel in March 2022, is decompression of only the right L5 nerve root and also pedicle screw fixation performed posteriorly.
Considering the evidence as a whole, I find the evidence of the applicant’s treating surgeon, Dr Steel, to be particularly persuasive. As the applicant’s treating surgeon, I consider that
Dr Steel is well placed to have a comprehensive understanding of the applicant’s condition and this is reflected in his various reports. It is apparent that Dr Steel spoke with the senior radiologist who reported on the most recent MRI lumbar spine and that was the basis for the addendum made to that report. Dr Steel’s various reports provide a detailed, comprehensive and logical analysis of the applicant’s lumbar spine condition, appropriate treatment and the likely prospect of success of the requested surgery.
Further, I note that Dr Steel’s opinion is supported by the evidence of the applicant’s independent medical expert, Dr Davis.
Considering the evidence as a whole, I prefer and accept Dr Steel’s opinion in relation to the requested surgery. On that basis, I am satisfied that the applicant has chronic symptoms as a result of pathology caused by the accepted injury. I am satisfied that various alternative treatments have not provided any significant relief to date. Further, I am satisfied that, in all the circumstances, the requested surgery is appropriate to address the applicant’s pathology and symptoms at this time.
Having regard to all the matters set out above, I am satisfied that the requested surgery is reasonably necessary as a result of the accepted injury.

SUMMARY

In summary, the Commission determines:
(a) the requested surgery is reasonably necessary as a result of the accepted injury.
On that basis, the Commission orders:
(a) the respondent to pay the costs of and incidental to the requested surgery in accordance with s 60 of the 1987 Act.

[2024] NSWPIC 142

25 March 2024