Brown v Wingham Beef Exports Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Brown v Wingham Beef Exports Pty Ltd [2021] NSWPIC 272
APPLICANT:	Michael David Brown
RESPONDENT:	Wingham Beef Exports Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	3 August 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim pursuant to section 60 of the 1987 Act for the costs of and incidental to a proposed surgery to extend a previous lumbar fusion to L2/3; lumbar injury accepted and previous treatment funded by insurer; whether further surgery “reasonably necessary”; alternative treatment in the form of chronic pain management recommended; whether radiological and clinical indications for the proposed surgery; Held- discrepancies between the treating medical evidence and the respondent’s expert’s history; Diab v NRMA Ltd considered and applied; award for the applicant.
DETERMINATIONS MADE:	1. The extension L2-S1 decompression and fusion surgery proposed by Dr Brian Hsu is reasonably necessary as a result of the injury on 9 November 2016. 2. The respondent to pay the costs of an incidental to the proposed surgery pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Michael David Brown (the applicant) was employed as a labourer by Wingham Beef Exports Pty Ltd (the respondent). On 9 November 2016, the applicant injured his lumbar spine at work. Liability for the injury was accepted by the respondent’s insurer.
Following the injury, the applicant underwent conservative treatment and a number of surgical procedures to his lumbar spine, including, most recently, a L3-S1 anterior lumbar interbody fusion, followed with a L3-S1 posterior decompression and fusion in March 2019.
On 28 July 2020, the applicant’s spinal surgeon, Dr Brian Hsu, requested approval from the respondent’s insurer for a further surgery to extend the decompression and fusion to L2.
Liability for the proposed surgery was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 10 December 2020.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 26 May 2021. The applicant seeks compensation under s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the costs of and incidental to the proposed surgery.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:

(a) whether the surgery proposed by Dr Hsu is reasonably necessary as a result of the injury on 9 November 2016.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration on 26 July 2021. The applicant was represented by Mr Howard Halligan, instructed by Mr Justin Stack. The respondent was represented by Mr Phillip Perry of counsel, instructed by Ms Jacklyn Dooley. A representative from the insurer was also present.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

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

(a) the ARD and attached documents; and
(b) Reply and attached documents (admitted under cover of an Application to Admit Late Documents lodged on 18 June 2021).

Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by him on 17 December 2020 and 26 May 2021.
The applicant described the injury to his lumbar spine on 9 November 2016. The applicant was pulling a rib cage off a ramp. The feather bones became entangled and the applicant had to yank the rib cage hard, twisting to the right, causing the injury to the applicant’s lumbar spine.

The applicant underwent an MRI of the lumbar spine on 8 December 2016 after consulting the workplace doctor, Dr Win. In January 2017, the applicant underwent physiotherapy and acupuncture with no lasting relief.
The applicant received further treatment from an exercise physiologist in March 2017. On 6 April 2017, the applicant was doing an exercise which involved bending forward, when he sustained an aggravation to his lumbar spine. The applicant was transported by ambulance to Manning Rural Referral Hospital, where he was prescribed analgesics.

The applicant returned to work on 11 April 2017 but experienced severe lower back pain radiating into his left leg. The applicant was unable to return to work and has been in receipt of weekly compensation ever since.
On 27 April 2017, the applicant was referred to Dr Hsu who recommended a repeat MRI scan and cortisone injection. The applicant underwent the injection on 16 May 2017 with no lasting effect.
The applicant consulted Dr Hsu again on 10 June 2017, at which time he was informed that a herniated disc had embedded into the nerve. Spinal surgery was recommended. After receiving a second opinion from Dr Bhisham Singh, the applicant underwent the surgery at the hands of Dr Hsu on 11 September 2017.
Following the surgery, the applicant underwent a combination of physiotherapy and hydrotherapy treatment.

Due to worsening symptoms, Dr Hsu performed an additional surgery in the form of an L3/4 decompression and discectomy on 12 March 2018.
The applicant underwent a further procedure, being a two-stage fusion by Dr Hsu on 4 March 2019 and 11 March 2019. Following the surgery, the applicant recommenced rehabilitation treatment.
The applicant consulted a pain specialist, Dr Taylor on 30 July 2019. The applicant’s pain killing medication dosage was increased.
Further MRI scans were performed on 16 June 2019 and 23 October 2019. At a consultation with Dr Hsu on 27 October 2019, a problem at L2/3 was identified. The applicant was referred to undergo a CT guided injection, which was performed on 23 December 2019.
Dr Hsu referred the applicant for further injections at L2/3 on 27 February 2020 and 18 June 2020. These injections gave the applicant some relief but only temporarily.
On 18 July 2020, Dr Hsu recommended another operation to extend the fusion from L3 to L2. The applicant obtained a second opinion from Dr Singh on 7 November 2020 and he agreed with Dr Hsu’s recommendation.
The applicant described his ongoing disabilities including severe pain, stiffness and restriction of movement of his lower back. The applicant described pain radiating down his left leg causing a limp. The applicant was barely able to move his toes. The applicant had difficulty performing domestic chores requiring strength or repetitive movement of his back.

In his supplementary statement, the applicant said that since early 2020 he had been performing home exercises every day for 10 to 30 minutes. The applicant had put on approximately 15 kg since July 2020 but he attributed this to increased muscle. The applicant disagreed with the opinion expressed by the respondent’s medicolegal expert, Dr Murray Hyde Page that he was deconditioned or overweight. The applicant’s back pain had remained the same regardless of the increased weight.
The applicant said his treatment had included monthly GP consultations, pain management advice from Dr Taylor, two facet joint injections and daily exercises under the direction and supervision of Dr Hsu. None of this had given the applicant any lasting pain relief.

On 18 July 2020, Dr Hsu discussed the options of chronic pain management or extension of the surgery up to L2. The applicant expressed a wish to undergo the recommended surgery rather than persist with chronic pain management. The applicant was taking strong medication in the form of Targin morning and night and six immediate release Palexia tablets per day.
The applicant continued to experience severe pain, stiffness and restriction of movement in his lower back and left foot drop. The applicant required a walking stick to mobilise. The pain was so intense in the mornings that it often brought the applicant to tears. The applicant also described the mental anguish and significant pressure his pain placed on his family.

Treating medical evidence

An MRI of the lumbar spine performed on 8 December 2016 at the request of Dr Aung Kway Win was reported to show disc herniations at L3/4 and L5/1. The other lumbar discs were described as “well preserved”.
A further MRI on 27 April 2017 showed L5/S1 disc sequestration with severe thecal sac compression and left L5 lateral recess root compression. No disc lesion was shown at L2/3. In a report to Dr Win on the same date, spinal surgeon, Dr Hsu recommended a trial of an L5/S1 epidural steroid injection. An injection was performed on 16 May 2017.

On 10 June 2017, Dr Hsu reported that the injection had helped the applicant’s radicular pain quite significantly, however, left leg weakness was now more prominent. The applicant walked with a limp. The applicant had requested to proceed with surgical intervention.
The applicant underwent L5/S1 discectomy and rhizolysis surgery on 11 September 2017.
On 6 December 2017, Dr Hsu reported that the applicant’s recovery had been slow. The applicant felt some numbness in the left leg and foot but his strength was improving.
On 25 February 2018, Dr Hsu reported that the applicant had been experiencing some on and off back pain but in the last few weeks had developed significant leg pain particularly on the right side. His most recent CT scan suggested a disc bulge or herniation at L4/5 or L3/4. A further MRI was arranged. An MRI performed on 2 March 2018 showed a significant disc herniation at L3/4.
On 12 March 2018, the applicant underwent an L3/4 decompression and rhizolysis performed by Dr Hsu. On 25 March 2018, Dr Hsu reported that the procedure had provided excellent relief of the applicant’s radiculopathy.
On 24 August 2018, Dr Hsu reported that the applicant was making some progress but continued to have a significant degree of back pain. A further MRI was arranged. That scan was reported to show a small annular tear and disc protrusion at L3/4. Following an x-ray and bone scans, on 8 October 2018, Dr Hsu recommended trialling facet joint injections at L4/5. An injection was performed on 5 November 2018.
On 3 December 2018, Dr Hsu reported that the applicant continued to have significant back pain despite repeated injections. Dr Hsu recommended an L3- S1 anterior and posterior lumbar decompression and fusion, which was performed on 4 and 11 March 2019 by
Dr Bhisham Singh.
On 4 February 2019, clinical psychologist, Ms Ava Read reported seeing the applicant for an initial consultation in which the applicant reported significant depressive symptomology associated with his back injury. Ms Read requested outpatient mental health nurse support through the Mayo Private Hospital.
On 24 June 2019, Dr Hsu reported that a CT scan indicated that the applicant’s fusion was progressing well. Dr Hsu referred the applicant for an MRI. On 28 October 2019, Dr Hsu reported that the MRI scan indicated some increased loss of disc height at the adjacent level at L2/3. Dr Hsu arrange for the applicant to undergo a trial of an L2/3 epidural steroid injection. Dr Hsu noted that the applicant was still being reviewed by Dr Nathan Taylor for pain management and the applicant was encouraged to continue to do so. Dr Hsu planned to review the applicant after the injection.
On 12 February 2020, Dr Hsu reported:
“His injection did give him approximately 50% relief of his symptoms for quite a few days which does give us some diagnostic information. It's likely that his adjacent segment is causing some of his current symptoms and I have arranged for him to undergo a further injection at the L2-3 facet joint bilaterally as both a diagnostic and therapeutic intervention.
I plan to review him after the injection and I will keep you informed of his progress.”
On 31 March 2020, Dr Hsu reported that approval had been sought for a further L2/3 injection:
“We are still waiting for approval for his L2-3 facet joint injection as the previous epidural injection has suggested that some of his pain is originating from the adjacent segment There appears to be some delay with the approval and his lawyers are helping him chase the approval for the injections. It is likely that the L2-3 facet joint injection will give us more indication that the current symptoms are from the adjacent segment and we may be able to consider pain management options such as radio frequency ablation to help with the pain.”
On 19 July 2020, Dr Hsu reported that the applicant had undergone the further L2/3 facet joint injection but without any significant relief. Dr Hsu said he had discussed with the applicant the options for further treatment including chronic pain management or extension of the fusion up to L2. The applicant was keen to proceed with surgical intervention.
Approval for an extension L2-S1 decompression and fusion was forwarded by Dr Hsu to the insurer on 28 July 2020.
Dr Singh reviewed the applicant on 7 November 2020. The applicant was said to be
“…doing quite well. He had some left leg pain and initially he appeared to have symptoms suggestive of weakness but that has been improving and he is not doing too badly at this stage.”
Dr Singh prepared a report for the applicant’s solicitor on 8 January 2021. Dr Singh was asked whether the L3 to L2 fusion extension proposed by Dr Hsu was within the usual range of treatments recommended for a person with the applicant’s symptoms. Dr Singh agreed.
Dr Singh gave the opinion that the surgery proposed was designed to alleviate the symptoms and improve the applicant’s function and overall condition. The surgery would be generally accepted by a reasonable proportion of spine surgeons as a recognised and accepted form of treatment. The treatment was appropriate for the applicant’s symptoms and pathology.
Asked whether the surgery was “reasonably necessary”, Dr Singh responded:
“I believe that the patient has trialled various conservative options for his ongoing symptoms and has not had sustained relief. Therefore I believe that the surgery proposed is reasonably necessary.”
Dr Singh prepared a further report for the applicant’s solicitor on 19 May 2021 in which he was asked to respond to the report of Dr Hyde Page. Dr Singh stated:
“I have read the report by Dr Hyde-Page. While I agree that he is likely to have had spinal decommissioning and has put on weight, objective evidence in terms of response to injections at L2/3 as well as MRI findings suggest that:
a. He has lost of disc height at the L2/3 exhibiting symptoms referable to adjacent segment.
b. An epidural injection gave him 50% relief during the anaesthetic phase.
c. Her facet injection gave him 20% relief during the anaesthetic phase.
Therefore, we can expect to have about 50% improvement following decompression and stabilisation at L2/3.
His non operative option is to accept permanent functional impairment and trial chronic pain management despite weight loss and physical reconditioning.”

Dr Spittaler

The applicant relies on medicolegal reports prepared by neurosurgeon, Dr Peter Spittaler dated 29 January 2021 and 19 May 2021.
Dr Spittaler took a history of the injury and the subsequent procedures performed by Dr Hsu and Dr Singh. The last surgery provided relief for about 12 months. The applicant then began developing pain above the level of the previous symptoms. The applicant was continuing to take to Targin and Palexia. The applicant was experiencing symptoms of pain in the upper lumbar and lower thoracic region, bilateral leg ache in the morning and some neck pain radiating into the right arm.
Dr Spittaler was asked whether the surgery proposed by Dr Hsu, namely an extension of the fusion site from L3 to L2, was a type of treatment within the usual range of treatments recommended for a person with the applicant’s symptoms. Dr Spittaler responded:
“The simple answer to this question is yes. Arthrodesis or fusion surgery is a reasonable measure to control otherwise unmanageable spinal symptoms. Reviewing the last imaging there certainly is some degenerative change at the L2/3 disc but then there also is changes at L1/2 and T12/L1. I understand why Dr Hsu would feel fusing the next level up as reasonable. Firstly, Mr Brown’s pain is higher than it was previously. Secondly, he has some pathology on MRI at the L2/3 level. Finally, he has a long segment fusion, and it is not uncommon for patients to develop adjacent segment disease in this situation.
However, I would have to say that in my practice prior to fusion surgery, I exhaust nonsurgical measures such as pain clinic treatment and if I were caring for Mr Brown, that is what I would try at this point (and probably would have tried prior to the second surgery). That being said, as I have indicated above the answer to this particular question is in the affirmative.”
Dr Spittaler confirmed that the surgery proposed was designed to alleviate symptoms and/or improve the applicant’s overall condition. Within the parameters of the response above,
Dr Spittaler agreed that it was a form of treatment that would generally be accepted by a reasonable proportion of the medical fraternity as a recognised and accepted form of treatment for the back injury. Dr Spittaler agreed that the surgery might be considered appropriate for the applicant’s symptomology and effective in reducing the applicant’s ongoing back and leg symptoms. Dr Spittaler expressed the opinion that surgery proposed was reasonably necessary.
In his supplementary report of 19 May 2021, Dr Spittaler was asked to respond to the report prepared by the respondent’s medicolegal expert, Dr Hyde Page. Dr Spittaler said:
“In some elements Dr Hyde Page concurs with my thoughts. As l have said, I would usually refer the patient for non surgical management prior to extending the fusion. However I think that there is variability in the approach and opinions to this situation. I think a body of spinal surgeons would consider extending the fusion one level is reasonable but the results would be quite variable.
I would also note that Dr Hyde Page to the best of my knowledge is not a spinal orthopaedic surgeon but a general orthopaedic surgeon.”

Dr Hyde Page

The respondent relies on a medicolegal report prepared by orthopaedic surgeon, Dr Murray Hyde Page, dated 17 November 2020. Dr Hyde Page indicated that he had before him various MRIs and other radiological investigations as well as a number of reports from
Dr Hsu.
Dr Hyde Page took a history of the injury on 9 November 2016 and the treatment that followed. After the L3 to S1 fusion performed in March 2019, Dr Hyde Page recorded the applicant’s subsequent progress as follows:
“After this third operation, with the L3 to sacrum fusion, Dr Hsu decided that he should not undertake a rehabilitation and exercise program. Instead, for the next twelve months he basically took things very quietly to allow the extensive fusion to mature. He continued to have a left foot drop and sciatica during this time. However, the back pain was not too severe.
About six months ago, he started to mobilise much more. He did this without any assistance from physiotherapy or any other specific treatment. As he has increased his activity, he has developed increasing pain in the thoracolumbar spine.
He has therefore returned to see Dr Hsu. It appears that he was organised to have an epidural injection at L2/3 which gave him 20% improvement of the pain and lasted two or three days. He did have facet joint injections, which he states were of no benefit. Otherwise it appears that he has had no specific treatment in the last six or eight months. I have already indicated that he really had no treatment after his lumbar fusion and the proceeding twelve months either.”

Dr Hyde Page recorded that the applicant’s current treatment consisted of regular Targin and Palexia. The applicant was performing his own exercises.
Upon examination, Dr Hyde Page noted that the applicant had put on 20 or 30 kg in the last few years since he injured his back and had become deconditioned. Dr Hyde Page considered that this was more than likely a significant cause for the applicant’s increased pain.
Dr Hyde Page noted an obvious left foot drop with significant weakness with foot and big toe extension as well as eversion of the foot. The examination showed marked thoracolumbar stiffness with guarding, and evidence of left radiculopathy.
Dr Hyde Page did not refer to any radiological investigations identifying pathology at L2/3.
Dr Hyde Page commented:
“At no time after his three operations does he appear to have shown any significant improvement overall. He has had a couple of injections at the L2/3 level, organised by Dr Hsu in 2020, but these did not result in any significant improvement, other than him stating there was a 20% improvement with the first injection for a couple of days. He remains on strong pain medication. His investigations show that he has had a successful L3 to sacrum anterior fusion.
There is no evidence on scan reports that I have read, that there was any significant degenerative changes at the L2/3 level overall.”
Dr Hyde Page noted that the applicant appeared to be straightforward in his answers and they did not appear to be any embellishment or exaggeration.
Asked to identify any other investigations that might identify the pain source before surgeries undertaken, Dr Hyde Page commented:
“I am not aware that he has had a bone scan done that would highlight any significant pathology at L2/3. He did have a bone scan in September 2018, but this was before his spinal fusion and is really not relevant. The last MRI scan he had done was in 2019, as far as I can see and it would be reasonable to do an MRI scan and specifically look at the L2/3 level to see if there are any degenerative changes.
There is no doubt that after a spinal fusion, the next level up does take increased stress. However, one would want to see significant evidence of facet joint arthritis and degenerative disc disease on an MRI scan and bone scan before considering further surgery.”
Asked to provide a clinical opinion as to whether the recommended surgery to extend the lumbar fusion to L2 would provide the outcome claimed by Dr Hsu, Dr Hyde Page gave the opinion:
“I do not consider the recommended surgery to fuse L2/3 will give Mr Brown any significant relief of his back pain. Based on my assessment today, he has more generalised pain in the thoracolumbar spine extending well above the L2/3 level. He is deconditioned and overweight. There is no evidence that the L2/3 level is causing significant pain, either clinically or on investigations including the injections he had.”
Dr Hyde Page gave the opinion that the proposed surgery was highly unlikely to result in decreasing the applicant’s thoracolumbar back pain and would have no effect on the left sciatica and foot drop.
Asked to provide an opinion as to whether the surgery was reasonably necessary and required to address the applicant’s ongoing symptoms, Dr Hyde Page said:
“I do not consider the proposed surgery to extend the spinal fusion from L3 to L2 is reasonably necessary and is required to address his ongoing back and leg symptoms. I have come to this conclusion as I have noted in all the questions above. To summarise, there is no indication he has significant degenerative disc disease and facet joint arthritis at L2/3. The pain is in the thoracic spine rather than the upper lumbar spine overall. He certainly does not have localised pain or tenderness around the L2/3 level. The injections did not result in any significant improvement when they were given at this level. He has not been through an appropriate weight loss and general exercise and rehabilitation program since he had his fusion over eighteen months ago. He is quite deconditioned.”
Asked whether any alternative treatment could assist the applicant, Dr Hyde Page stated:
“I note that Dr Hsu in his report of 4 September 2020, has suggested that chronic pain treatment could be an alternative to further surgery. I would suggest that chronic pain treatment including an exercise and rehabilitation program should be undertaken before he has any consideration for further surgery. This would include exercise physiology, hydrotherapy, gym and a regular self-directed exercise program. He should go on a weight reduction program. His requirements for pain medication throughout this should be monitored as well.
It needs to be noted that the proposed surgery could only result in some change in his back pain and in no way will surgery at the L2/3 level have any affect on his left sciatica and foot drop. The sciatic pain is causing quite a major part of his impairment and disability.”

Applicant’s submissions

Mr Halligan noted that there was a single issue in dispute arising from the opinion of the respondent’s medicolegal expert, Dr Hyde Page.
Mr Halligan provided a chronology of the applicant’s treatment following the injury on 9 November 2016, including three previous surgeries, physiotherapy, acupuncture, hydrotherapy, treatment by an exercise physiologist, multiple cortisone injections, and referral to a pain management specialist, Dr Taylor. All of this treatment had been paid for by the insurer.
Mr Halligan noted that a psychologist, Ms Read, had also sought approval for the applicant to undergo a regime of psychological intervention due to difficulties with depression and chronic pain, however approval had been declined.
Mr Halligan noted that Dr Hsu had arranged for the applicant to undergo a therapeutic and diagnostic injection at L2/3. This provided a 50% relief of symptoms for a short period of time. A further injection was later performed.
Mr Halligan submitted that Dr Spittaler supported the idea that there should be an extension of the fusion from L3 to L2 as proposed by Dr Hsu. Dr Spittaler made two significant observations in his report. First, Dr Spittaler commented that Dr Hyde Page did not hold specialist qualifications as a spinal surgeon but more general qualifications. Secondly,
Dr Spittaler suggested that it “may” be appropriate for non-surgical measures to take place prior to surgery.
Mr Halligan observed that the applicant had, however, undergone a massive regime of
non-surgical intervention. The applicant had undergone treatment by Dr Taylor a pain management specialist, physiotherapy, exercise physiology, opioid medication and seemingly countless injections. To suggest that the applicant should undergo more
non-surgical intervention “beggared belief”. Mr Halligan commented that Dr Spittaler seemed to be ignorant of the applicant’s attempts to rehabilitate himself.
Mr Halligan noted that the applicant’s second written statement described his experience of symptoms. The applicant was truly at the end of his tether. Dr Spittaler did not suggest what type of non-operative treatment would be appropriate. The same could be said of Dr Hyde Page. Mr Halligan noted that the applicant’s statements appeared not to have been shown to Dr Hyde Page. The alternative treatments suggested were not specifically identified.
Mr Halligan submitted that it was significant that Dr Hyde Page noted that the applicant was described as not expressing embellishment or exaggeration.
Mr Halligan noted that Dr Hyde Page believed the applicant to be deconditioned. The applicant had denied that proposition emphatically and given evidence that he had been exercising on a daily basis. The applicant believed that any increase in his weight would be the result of increased muscle bulk. Mr Halligan submitted that there was no support for
Dr Hyde Page’s comments.
Mr Halligan observed that Dr Hyde Page expressed the opinion that there was no evidence of degenerative disc disease at L2/3 and that the applicant’s pain was originating in the thoracic spine. Dr Hyde Page found no evidence of localised pain at L2/3. Mr Halligan noted however that the applicant had obtained pain relief from a diagnostic injection at L2/3.
Dr Hyde Page’s focus on the thoracic spine ignored the three rounds of surgery to the applicant’s lumbar spine.
Mr Halligan referred in detail to a number of passages from the decision of Roche DP in
[1] [2014] NSWWCCPD 72.
Diab v NRMA Ltd[1]. Mr Halligan submitted that the test in s 60 of the 1987 Act was less than one of absolute necessity. The surgery did not need to be both reasonable and necessary.
Mr Halligan submitted that it was well understood that after one segment of the spine was fused there can be pressure on adjacent segments causing adjacent segment disease. Following his previous fusion surgery, the applicant was now suffering adjacent segment disease at L2/3. The pathology and stress on the L2/3 segment had its origins in the workplace injury.
Having regard to Dr Hyde Page’s qualifications, the three contrasting opinions, the applicant having exhausted every conceivable suggestion for alternative treatment and the previous lumbar spine surgeries having been paid for by the insurer, Mr Halligan submitted that the Commission would have no hesitation in approving the additional surgery now proposed.

Respondent’s submissions

Mr Perry submitted that contrary to the applicant’s submissions, the Commission would have some hesitation in approving the surgery. Mr Perry acknowledged the applicant’s evidence regarding the impact of the work injury and conceded that no one could fail to be moved by the applicant’s predicament. The applicant expected that he would regain some normality through the proposed surgery. The applicant had, however, undergone two fusions already without benefit, raising questions as to whether the further surgery could worsen the applicant’s condition.
Dr Spittaler recommended that the applicant undertake a different course of treatment.
Mr Perry noted that Dr Spittaler was asked whether the surgery proposed was a type of treatment within the usual range of treatments used to address the applicant’s condition. The answer was that the surgery might be considered appropriate but Dr Spittaler would, in his practice, exhaust non-surgical measures such as referral to a chronic pain clinic first.
Mr Perry submitted that in the current circumstances, Dr Spittaler would not proceed to surgery.
Mr Perry noted that if the applicant was suffering adjacent segment disease, the proposed surgery may produce further adjacent segment disease. The applicant had not attempted the pain clinic recommended by Dr Spittaler. Alternative treatments were available and recommended Dr Spittaler.
Mr Perry observed that Dr Spittaler was not alone in expressing this view.
Mr Perry referred to the report of Dr Singh, dated 13 November 2020. Dr Singh reported that the applicant was doing quite well, his left leg pain was improving and he was not doing too badly. Mr Perry queried whether that change in circumstance had been taken into account by Dr Hsu. Mr Perry submitted that Dr Singh’s report was consistent with the view that alternative treatment should be attempted prior to further surgery.
Mr Perry observed that Dr Hyde Page held the firm view that surgery would not assist the foot drop. It was doubtful whether the surgery would assist generally. A better alternative treatment was available in the form of a chronic pain treatment program.

Mr Perry referred to Dr Singh’s most recent report addressing Dr Hyde Page’s opinion.
Dr Singh recognised that there was a non-operative option to trial chronic pain management.
Mr Perry submitted that there was clearly an alternative treatment available. The actual effectiveness of the proposed surgery was in doubt. Dr Hyde Page was qualified to give the opinion he had notwithstanding that he was not a spinal surgeon. Dr Spittaler, Dr Singh and Dr Hyde Page all suggested alternative treatment could be trialled. Analysing the medical evidence closely, the Commission would determine that the orders sought should be refused.

Applicant’s submissions in reply

With regard to Dr Singh’s latest report, Mr Halligan submitted that it was not suggested that chronic pain management would alleviate any permanent functional impairment. Dr Singh had indicated in his earlier report that various conservative options had been trialled but without sustained relief. Without the surgery, the applicant would be left with permanent functional impairment.
Hr Halligan noted that the applicant had been referred to pain management physician
Dr Taylor. It was not clear what more could be achieved.

Whilst the surgery may not provide relief from foot drop, the chronic and unremitting pain were a bigger concern for the applicant.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act.
Section 60 of the 1987 Act relevantly provides:
“(1)    If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b)     any hospital treatment be given, or
(c) any ambulance service be provided, or
(d)     any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
It is the applicant who bears the onus of establishing on the balance of probabilities that proposed surgery is reasonably necessary as a result of the accepted injury on 9 November 2016. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[2] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1 injury to the applicant’s right ankle and her cervical spine. 940] HCA 20; (1940) 63 CLR 691 at 712.”
[2] [2008] NSWCA 246.
In the present case, the causal element of s 60 is not in dispute. There is, however, a dispute as to whether the treatment proposed is reasonably necessary.
What constitutes reasonably necessary treatment was considered in the context of s 10 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[3] where Burke CCJ stated:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[3] (1986) 2 NSWCCR 32 (Rose).

Further, His Honour added:

“1.     Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.      However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3.      Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.      In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”

His Honour considered the relevant factors relating to reasonably necessary treatment under s 60 of the 1987 Act in Bartolo v Western Sydney Area Health Service[4] and stated:

“The question is should the patient have this treatment or not. If it is better that he has 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.”

[4] [1997] NSWCC 1.

In Diab v NRMA Ltd[5], to which the parties have referred in these proceedings, Roche DP provided a summary of the relevant principles as follows:
[5] [2014] NSWWCCPD 72.

“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.
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 [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). 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 [2010] HCA 28, 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’.”[6]
[6] At [88] to [90].

Deputy President Roche commented further[7]:
“Reasonably necessary does not mean “absolutely necessary” (Moorebank at [154]). 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 claimed 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. Dr Bodel and Dr Meakin were both wrong to apply that test.”
[7] At [86].

Applying the principles above to the circumstances of this case, I note that opinions favourable to the applicant have been provided by Dr Singh and Dr Spittaler although
Dr Spittaler qualified his opinion by stating that in his practice he would exhaust nonsurgical measures such as pain clinic treatment prior to offering fusion surgery. Whilst no opinion on whether the surgery proposed by him is “reasonably necessary” for the purposes of s 60 of the 1987 Act has been provided by Dr Hsu, it may be inferred that in his opinion the surgery recommended is reasonable.
Weighing against the opinions of Dr Singh and Dr Spittaler is the report of Dr Hyde Page.
Dr Hyde Page’s opinion is based on a number of circumstances. First, Dr Hyde Page formed the view that there was no evidence that the applicant had significant degenerative disc disease and facet joint arthritis at L2/3. Dr Hyde Page considered that there was no localised pain or tenderness around the L2/3 level and the injections performed at Dr Hsu’s recommendation had not resulted in any significant improvement at this level.
In giving this opinion, Dr Hyde Page has formed a significantly different opinion of the MRI performed on 23 October 2019 to the applicant’s doctors. Although the report of that MRI is not in evidence before me, it appears to have been provided to Dr Hyde Page. Dr Hyde Page records in his report that the scan reported no definite causes for symptoms in the back and leg and did not mention the L2/3 level. It is not clear whether Dr Hyde Page had the MRI images before him. The language used in his report suggests that only the report of the scan may have been provided.
In contrast, Dr Hsu reported on 28 October 2019 that the scan indicated some increased loss of disc height at the L2/3 level. It was on the basis of this MRI scan that Dr Hsu recommended a trial of an L2/3 epidural steroid injection. Dr Hs’s report suggests that he had the benefit of viewing the imaging.
Dr Singh has also indicated in his report of 19 May 2021 that the MRI findings suggested that there was a loss of disc height at L2/3 and that the applicant was exhibiting symptoms referable to the adjacent segment.
Dr Spittaler in giving his opinion has also formed the view that there was “certainly some degenerative change at the L2/3 disc” and referred in this regard to pathology seen on MRI at the L2/3 level. It is noted, however, that Dr Spittaler also reported that there were changes higher up in the thoracolumbar spine.
The weight of medical opinion therefore indicates that the MRI scan performed in October 2019 did reveal degenerative pathology at the L2/3 segment. Dr Hyde Page’s view that there was no significant pathology appears to have materially influenced his opinion that the procedure proposed was not reasonably necessary.
Both Dr Hyde Page and Dr Spittaler have noted that following a spinal fusion it is not uncommon for patients to develop adjacent segment disease. The applicant in this case has undergone a long segment fusion.
Dr Hyde Page stands alone in his view that the applicant’s pain appeared to be located higher up in the thoracic region of the spine rather than at the upper lumbar spine. Whilst neither Dr Hsu nor Dr Singh record in any detail their examinations of the applicant in their treating reports, Dr Singh has reported to the applicant’s solicitor that the applicant was exhibiting symptoms referable to the L2/3 segment. Dr Spittaler also reported that the applicant had symptoms in the upper lumbar spine as well as the lower thoracic region.
Mr Perry drew my attention to the report of Dr Singh dated 13 November 2020. That report was issued after the request for approval of the surgery. That report indicated that the applicant was doing quite well and his left leg pain was improving. Whilst the contents of the report do raise questions as to whether the proposed surgery might remain reasonable in the face of the reported improvements in the applicant’s condition, it is notable that Dr Singh has provided two further reports in which he has given the opinion that the surgery is reasonably necessary. It is probable that any improvements in the applicant’s condition would have been taken into account by Dr Singh in expressing that opinion.

There is a further inconsistency between Dr Hyde Page’s report and the evidence relied on by the applicant with regard to the results of the injections administered at the L2/3 level.
Dr Hyde Page reported that the epidural injection gave the applicant 20% improvement of his pain lasting two or three days. The facet joint injection was of no benefit. Dr Hyde Page’s report appears to be based on a history provided by the applicant, however, the more contemporaneous reports from Dr Hsu suggest the injections were of greater benefit. On 12 February 2020, Dr Hsu reported that the epidural steroid injection gave the applicant approximately 50% relief of his symptoms for quite a few days. Dr Hsu regarded this as providing some diagnostic information suggesting that the adjacent segment was causing some of the applicant’s symptoms.
Dr Hsu recorded on 19 July 2020 that the further facet joint injection had not provided significant relief although Dr Singh’s report of 19 May 2021 suggested that this injection did provide 20% relief during the anaesthetic phase.
The history relied on by Dr Hyde Page in expressing his opinion on the reasonable necessity of the procedure, therefore appears inconsistent with the treating evidence with regard to the extent to which the injections provided the applicant with relief.
On the basis of the injection results, Dr Singh has expressed the opinion that the applicant could be expected to have about 50% improvement in his symptoms following decompression and stabilisation at L2/3. Dr Spittaler has provided an opinion consistent with Dr Singh that the surgery could be effective in reducing the applicant’s ongoing back and leg symptoms and was designed to alleviate those symptoms or improve the applicant’s overall condition.
In giving a contrary opinion, Dr Hyde Page appears to have taken a more pessimistic history of the effectiveness of the previous surgeries to the lumbar spine. Dr Hyde Page reported that at no time after the three operations did the applicant appear to have shown any significant improvement overall. Whilst the applicant has clearly reported ongoing lumbar symptoms, the treating reports from Dr Hsu and Dr Singh do suggest that the previous surgeries did provide the applicant with some relief. The first procedure at L3/4 performed on 12 March 2018 was reported to have provided the applicant with excellent relief of his radiculopathy although he continued to have a significant degree of back pain after several months. Dr Spittaler also took a history that the last surgery provided relief for about 12 months before the applicant began developing pain above the level of the previous symptoms.
Having regard to the radiological and clinical indications for the surgery, the weight of medical opinion therefore favours the applicant’s case.
The final basis on which Dr Hyde Page has reached the conclusion that the surgery proposed is not reasonably necessary is the applicant’s failure to go through an appropriate weight loss and general exercise and rehabilitation program. Dr Hyde Page suggested that the applicant should undergo chronic pain treatment including exercise physiology, hydrotherapy, gym and regular self directed exercise program. Dr Hyde Page considered the applicant should go on a weight reduction program and his requirements for pain medication should be monitored.
Dr Spittaler has expressed agreement with Dr Hyde Page on the availability of chronic pain management as an alternative treatment. There is also indication that chronic pain management had been considered by both Dr Hsu and Dr Singh as an alternative nonsurgical treatment option. The applicant has, however, indicated his preference is to proceed with surgery.

Mr Halligan has noted that the applicant has undergone extensive conservative treatment including exercise physiology, hydrotherapy, physiotherapy, multiple injections and pain management through Dr Taylor in the past. Conservative forms of treatment do not appear to have provided the applicant with effective relief of symptoms in the past. This might reasonably explain the applicant’s reluctance to continue on with chronic pain management as an alternative to surgery.
It is unclear to what extent the applicant underwent conservative treatment between the fusion surgery and the recommendation to extend the fusion. Dr Hyde Page took a history of little such treatment suggesting that the applicant was not provided with a rehabilitation and exercise program but basically took things quietly. Dr Hyde Page noted that the applicant had started to mobilise more and was performing his own exercises without assistance from physiotherapy or any other specific treatment. With the increased activity the applicant had developed increasing pain in the thoracolumbar spine.

The applicant’s evidence suggests he did undergo a rehabilitation program. There is, however, no evidence from any treating practitioner to confirm any form of treatment provided to the applicant in this period. There is indication in the applicant’s statement evidence and in the treating reports from Dr Hsu that the applicant was referred to a pain management specialist, Dr Nathan Taylor. No indication is given as to what treatment was recommended by Dr Taylor other than the prescription of strong pain medication. The applicant has confirmed in his most recent statement that he was performing his own exercises on a daily basis. The applicant has also denied being significantly overweight or deconditioned.
I am satisfied on the evidence before me that a chronic pain management program of the kind suggested by both Dr Hyde Page and Dr Spittaler constitutes an alternative form of treatment available to the applicant. The potential effectiveness of such treatment does, however, remain unclear. Dr Hyde Page does not give any clear indication of what outcomes might be expected from such treatment. Dr Spittaler suggests that he would exhaust nonsurgical measures such as pain clinic treatment prior to offering surgery if he were caring for the applicant. As noted by Mr Halligan, however, it is not apparent whether Dr Spittaler was fully apprised of the full range of conservative treatment attempted unsuccessfully by the applicant in the past. I am not persuaded that the alternative treatment identified by Dr Hyde Page and Dr Spittaler would produce any “better” outcomes for the applicant than the surgery proposed.
The availability of alternative treatment is a relevant consideration but not determinative of whether the surgery proposed by Dr Hsu is reasonably necessary. As noted by Dr Spittaler there is variability in the approach and opinions to this situation amongst spinal surgeons.
Dr Spittaler gave the opinion that a body of spinal surgeons would consider extending the fusion one level is reasonable.
Having regard to the considerations identified in Diab, I am satisfied that the weight of medical evidence before me indicates that the treatment proposed by Dr Hsu is appropriate, potentially effective and is accepted by a reasonable body of medical experts as appropriate and likely to be effective.
None of the doctors who have been involved in this case suggest that the surgery is likely to eliminate the applicant’s symptoms. It has, however been suggested by Dr Singh that the surgery could be expected to produce a 50% reduction in symptoms at the L2/3 level.
Dr Hyde Page has also noted that the applicant would not expect any relief from his left sciatica and foot drop. The applicant’s own evidence does, however, indicate that he is significantly troubled also by severe pain, stiffness and restriction of movement in his lower back. The applicant’s pain was described as intense and was having a significant impact on the applicant’s mental health.
No submissions were made that the cost of the treatment proposed was unreasonable.
Weighing the relevant considerations, notwithstanding the availability of alternative treatment in the form of chronic pain management, I am satisfied that the surgery proposed by Dr Hsu is reasonably necessary as a result of the injury on 9 November 2016.
There will be an order that the respondent pay the costs of and incidental to the surgery pursuant to s 60 of the 1987 Act.

[2021] NSWPIC 272

3 August 2021