Budden v DFB Trading Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Budden v DFB Trading Pty Ltd [2022] NSWPIC 514
APPLICANT:	Janine Budden
RESPONDENT:	DFB Trading Pty Limited
Member:	Gaius Whiffin
DATE OF DECISION:	16 September 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for injury to back; claim for treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act) (future L2/3 posterior interbody fusion); consideration of applicant’s statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the surgery is reasonably necessary medical treatment as a result of the injury to the applicant’s back on 7 December 2004 during her employment with the respondent; Guthrie v Spence, Rose v Health Commission(NSW), Diab v NRMA Limited, Murphy v Allity Management Services Pty Limited considered; Held – the surgery proposed for the applicant (L2/3 posterior interbody fusion) is reasonably necessary medical treatment as a result of an injury to the applicant's back which was contracted by her in the course of her employment with the respondent; deemed date of 7 December 2004; award that the respondent pay the applicant’s future section 60 of the 1987 Act expenses in relation to the proposed surgery.
determinations made:	1. Pursuant to s 162 of the Workers Compensation Act 1987 (the 1987 Act), a declaration is made that DFB Trading Pty Limited entered into a contract with an insurer (the Workers Compensation Nominal Insurer – AAI Limited t/as GIO) in respect of its liability under the 1987 Act to the applicant, and that DFB Trading Pty Ltd has ceased to exist. 2. The surgery proposed for the applicant by Dr Spittaler (L2/3 posterior interbody fusion) as referred to in his 4 June 2020 report, is reasonably necessary medical treatment as a result of an injury to the applicant's back which was contracted by her in the course of her employment with the respondent – deemed date of 7 December 2004.
orders made:	1. The Application to Resolve a Dispute is amended with the consent of the respondent, as follows: (a) the name of the respondent is changed to Workers Compensation Nominal Insurer, and (b) the date of the injury pleaded on page 8 of the application is changed to a deemed date of 7 December 2004. 2. The respondent is to pay for the costs of and incidental to the surgery (L2/3 posterior interbody fusion) proposed for the applicant by Dr Spittaler in his 4 June 2020 report, pursuant to s 60 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

Janine Budden (the applicant) is 60-years-old. She was employed by DFB Trading Pty Limited (the respondent) from April 2003 until her employment was terminated in early 2006. Her employment duties involved packing and transporting crates of pies.
She injured her back whilst performing these employment duties. The respondent has accepted liability for the back injury, and has made various workers compensation payments to her over the years, including a lump sum payment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 7% whole person impairment, and also including payment of her medical expenses for treatment of the back injury.
The applicant’s current treating neurosurgeon, Dr Spittaler, has recommended to her that she undergo further surgery to treat the injury. On 4 June 2020, the doctor recommended that she undergo a L2/3 posterior interbody fusion. The doctor sought that the respondent approve the costs involved in this surgery.
However, the respondent issued notices denying liability for the costs involved in the surgery, pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and dated 30 June 2020 and 6 August 2020. It then reviewed these notices, but maintained its denial of liability in a further dispute notice dated 22 September 2021.
By way of an Application to Resolve a Dispute (ARD) filed with the Personal Injury Commission (the Commission), the applicant requests an order that the respondent pay for the costs of and incidental to the surgery proposed by Dr Spittaler in accordance with s 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree that the following issue is in dispute:
(a) whether the surgery proposed by Dr Spittaler (L2/3 posterior interbody fusion) as referred to in his 4 June 2020 report, is reasonably necessary medical treatment as a result of an injury to the applicant's back which was contracted by her in the course of her employment with the respondent – deemed date of 7 December 2004.

PROCEDURE BEFORE THE COMMISSION

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.
A conciliation conference was held in the dispute on 5 September 2022. On that occasion, Mr Ross Stanton of counsel appeared for the applicant, instructed by Mr Rogers and Mr Thomas; and Mr Greg Young of counsel appeared for the respondent, instructed by Ms Gallagher. The applicant was present, as was a representative from the respondent’s insurer, Mr Glavinceski.
As a resolution of the dispute was not possible during the conciliation conference, the dispute proceeded to an arbitration hearing before me.
The applicant requested that a declaration be made pursuant to s 162 of the 1987 Act. She provided a company extract dated 16 August 2022 showing that the respondent was deregistered on 2 July 2022. It was also confirmed (by Mr Young) that the respondent’s insurer had entered into a contract with the respondent during its lifetime in respect of any liability arising under the 1987 Act to the applicant. In those circumstances, I determine that I have the evidence necessary for me to make the declaration sought, and I so make that declaration.
The applicant also advised that if I was to make the declaration, she would seek to amend the name of the respondent to Workers Compensation Nominal Insurer. The respondent consented to this course, and I therefore make an order accordingly.
The applicant further sought to amend the ARD in order to clarify that her back injury had a deemed date of 7 December 2004 (rather than 7 April 2004, which had previously been pleaded). The respondent consented to this amendment, and I therefore make an order accordingly.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination (both parties consenting to the admission of all documents in this regard):
(a)    the ARD and attached documents;
(b)    the respondent’s Reply (Reply) and attached documents; and
(c)    the applicant’s Application to Admit Late Documents (applicant’s AALD) lodged 16 August 2022 and attached documents.

Oral evidence

There was no oral evidence called at the arbitration hearing.

Applicant’s evidence

The applicant has provided two statements.
The first statement was signed on 7 September 2018 and can be found at page 15 of the ARD.
The applicant commenced working for the respondent in April 2003 as a shop assistant. Her duties involved packing goods and then transporting the goods on trolleys to truck loading bays. She says that the trolleys were heavy, tall, and poorly maintained. Then, for a period in 2004, she was required to pack crates of pies onto a stack that was 12 crates high. She began to experience “a grumbling type pain in my lower back, which developed into a more persistent backache radiating pain extending into my right buttock and right thigh”. The pain worsened and she reported her symptoms to the respondent on 7 December 2004.
She had not previously suffered lower back injuries.
She says that after reporting her back symptoms, she did not return to her pre-injury duties with the respondent, and her employment with it was eventually terminated in early 2006. She subsequently worked for 13 different employers mainly as a cook, and when she signed the statement, she was employed by the Chelmsford Hotel. She had struggled with her employment post the respondent because of her back symptoms, having difficulty performing her employment duties, and not being able to work on a full-time basis.
She initially attempted to manage her back symptoms conservatively with a combination of medication, rest, and exercising. However, she found it increasingly hard to cope with her symptoms, and as a result, she was referred to an orthopaedic surgeon (Professor Ghabrial) in June 2017. The professor initially explained to her that he was reluctant to perform surgery upon her until she had exhausted other treatment options, including steroid injections. In this context, she underwent a caudal block procedure in June 2018, but that procedure did not provide any relief for her symptoms.
After careful consideration, she says that she then indicated to Professor Ghabrial that she was prepared to undergo surgery. The respondent agreed to pay for the costs of and incidental to that surgery (a L2/3 discectomy) and it was performed by Professor Ghabrial on 21 August 2018. She was still in the recovery phase from the surgery when she signed the statement.
The applicant’s second statement was signed on 12 May 2020 and can be found at page 19 of the ARD.
She says that the 21 August 2018 surgery “did not provide the relief I had hoped as I continued to experience severe pain, discomfort and restriction on my range of movement”. Professor Ghabrial however told her that he considered the surgery to be a success. He recommended physiotherapy, hydrotherapy, medication, and then pain management, to treat the applicant’s ongoing symptoms.
She says that she informed the professor that she was reluctant to take anti-inflammatory medication as it created bowel difficulties for her.
She continued to consult with the professor during 2019, although she felt that he was “being dismissive and unhelpful”. She recalls him saying to her words to the effect of “I have done my job”.
She arranged a referral to Dr Russo in early 2020, who recommended that she consult with a psychologist and who prescribed her with Cymbalta. She considered Dr Russo’s advice but explains:
“However, I was extremely concerned about being reliant on medication and/or the mid to long-term health consequences of being reliant on medication especially as I had experienced symptoms such as bowel irritation and diarrhoea from medication previously. I was also concerned all medication would do was mask the symptoms rather than treat the condition”.
She did not undergo the medication treatment recommended by Dr Russo, and instead arranged for her general practitioner to refer her to a neurosurgeon, Dr Spittaler.
Dr Spittaler arranged for her to undergo further scans and eventually (when she consulted with him on 7 May 2020) gave her three options - live with her symptoms, fusion surgery, or pain management (an option which she says she had explored and did not wish to pursue further).
She says that she considered these options and wishes to undergo the fusion surgery. She says that the surgery “is the appropriate treatment option moving forward”.
She finally explains the symptoms being suffered by her when she signed her second statement. She has constant pain, discomfort and restricted movement in her lower back. The pain goes down her right leg on the outer side of the leg to above her knee. That area of her leg is therefore very tender to touch.
She finds it difficult to drive a car and is limited in how far she can travel. She also has difficulties dressing, shaving her legs, cutting her toenails, and defecating. She often suffers with diarrhoea, which she believes is a result of the medication she is taking.
She is very limited in her household activities, such as cleaning, vacuuming, sweeping, making beds, sewing, gardening and shopping. She is restricted when climbing and descending stairs and when walking on an incline, and she is unable to run. She no longer uses her motorcycle.
There are a number of reports from Dr Spittaler in the ARD. There are two reports dated 26 March 2020 (pages 26 and 27), although it would appear that at least one of these reports is dated incorrectly. The report at page 27 seems to refer to an initial consultation, and the report at page 26 seems to refer to a review consultation.
In the report at page 27, the doctor took a history of the applicant experiencing lower back pain and right leg pain whilst working for the respondent in 2004, but those symptoms being controllable until 2017. She underwent surgery in 2018 but since then, had ongoing back pain and had not been able to return to work. She took Panadol Osteo and Endone, and had recently stopped hydrotherapy treatment.
The doctor reviewed a 2008 lumbar spine MRI scan, a report which does not seem to be in evidence. The scan demonstrated “marked disc degeneration at L5/S1 but rather worse disc changes at L2/3 without any significant persisting disc prolapse”.
The doctor referred the applicant for physiotherapy and further radiological tests. His suspicion was that the applicant “may be able to be helped with a stabilisation procedure”.
In the report at page 26, the doctor referred to a recent MRI scan undergone by the applicant, which confirmed “severe degeneration at the L2/3 intervertebral disc without any clear root compression”. He opined:
“Firstly, it would be safe not to intervene. Janine has seen Dr Russo in the Pain Clinic and didn’t have a good experience so I don’t think she is too keen to revisit pain clinic treatment and I can understand that. The only other option left would be L2/3 posterior interbody fusion”.
There are then two reports from Dr Spittaler both dated 4 June 2020. The report at page 29 of the ARD is addressed to the applicant’s general practitioner, and confirmed that the applicant had decided to proceed with the L2/3 posterior interbody fusion. The report at page 30 of the ARD is addressed to the respondent’s insurer, and requested approval for the surgery while providing costings (a total of $20,353,13 in surgery fees) for it.
Finally, there is a report from Dr Spittaler to the applicant’s solicitors dated 30 August 2021 (page 31 of the ARD). The doctor referred to consulting with the applicant on five occasions, and the doctor diagnosed lumbar intervertebral disc disease.
The doctor is asked by the applicant’s solicitors to discuss the opinions of Dr Harrington (who was qualified by the respondent and whose opinions I will discuss later), and specifically whether the applicant’s pain generator was at L2/3 or at L5/S1, and whether foraminal blocks would be of diagnostic assistance. The doctor opined:
“I accept Dr Harrington’s comments regarding the pain generator which is why treating back pain rather than radicular pain with surgery is less successful. My impression when I saw the patient was that her pain was rather higher than one would expect with pain from L5/S1 but Dr Harrington’s suggestion of steroid and local anaesthetic injections at both levels separated by some time may be helpful in narrowing down the pain but I think it is likely that the upper level given that it is the more degenerative will be the culprit”.
And:
“I understand Ms Budden’s reluctance to have the treatment given her previous experience. To be honest I think it is unlikely it will provide helpful information but I would also note that it is of low risk”.
And:
“Fusion surgery for mechanical back pain is a late option. The vast majority of patients are able to be managed with simple measures such as physiotherapy and analgesia and anti-inflammatories. When this fails pain clinic treatment is the next option. Ms Budden has been through all of this and has persisting symptoms. The options are as I have outlined to the patient, continued conservative treatment (in other words living with what she has got at the moment) or surgery. There appears to be some argument about which is the appropriate level and this is always the problem with surgery for back pain….If Ms Budden is happy to have the steroid injection at two levels then one can be more confident that it will help her but if she is reluctant for the reasons she states then I would think that the appropriate level to treat is L2/3”.
The applicant’s solicitors qualified Dr Poplawski and his report is at page 46 of the ARD.
The doctor took a history of the applicant’s employment duties with the respondent, which is entirely consistent with the history provided in the applicant’s statements. She developed lower back symptoms with radiation down the lateral aspect of her right thigh from December 2004. Her initial radiological tests “reported the presence of degenerative narrowing at the L2/3 disc level and a very small posteocentral disc protrusion at the L5/S1 level”.
Her symptoms continued and she performed light duties employment with the respondent with difficulties. Her employment with the respondent was terminated in 2006, and over the years since, she has been unable to manage full-time work, last working in August 2018.
She underwent a caudal block procedure with Professor Ghabrial, which failed to relieve her symptoms. The professor then carried out a right hemilaminectomy at the L2/3 level and a decompression of the right L3 nerve root. She then underwent further conservative treatment with physiotherapy, hydrotherapy, and medication, which did not provide significant benefit. She consulted with a pain physician (Dr Russo) but was reluctant to undertake treatment with more medication as she was concerned about possible side effects. She was therefore referred to Dr Spittaler who gave her the option of undergoing a surgical fusion at the L2/3 level.
She attended an appointment with Dr Harrington on 15 July 2020, which had been arranged by the respondent. Dr Harrington expressed concern as to whether the L2/3 level or the L5/S1 level was the area of symptom generation, and recommended foraminal blocks. However, Dr Poplawski recorded:
“Ms Budden stated that she is not keen on the idea of the foraminal blocks, in view of the fact that following the caudal injection she developed a severe migraine, which lasted for a considerable period of time and was very debilitating and she is not willing to take the chance that the same may happen again”.
The doctor recorded the applicant’s current situation as involving sleeping difficulties, limited sitting and standing ability, reduced walking ability, the need to avoid bending, lifting, pushing and pulling activities, interference with personal care, interference with household activities, limited driving ability, as well as her inability to ride a motorcycle.
The doctor recorded his examination findings as follows:
“Range of motion in her spine was reduced to flexion forward 50°, rotation reduced on both sides, more to the left than right and side flexion reduced more to the right than left with these movements resulting in low back pain radiating to the right buttock and thigh.
It is worth noting here that when she was reviewed by Dr Harrington on 15 July 2020, he noted altered sensation in the lateral cutaneous nerve distribution of her right thigh, which arises from the dorsal division of the second and third lumbar nerves at the L2/3 level and therefore correlates with Ms Budden’s symptoms.
In the sitting position, straight leg raising was limited by pain in her lower back and to 50° on the left and 40° on the right”.
The doctor reviewed investigations that took place on 24 January 2005, 11 August 2005, 27 February 2019, 29 March 2019, and 2 April 2020. He said that there were no reports available for him to view in relation to the latest MRI scan. It is noted that the most recent MRI scan report in evidence is the one from the investigation on 2 April 2020.

The doctor diagnosed degenerative disc disease at L2/3 with irritation to the right S1 nerve root, together with disc narrowing and left facet joint osteoarthritis at L5/S1. He summarised as follows:
“Ms Budden sustained a work-related injury to her lumbar spine at the L2/3 level resulting in subsequent disc degeneration and irritation of the right L3 nerve root, which ultimately resulted in her inability to continue with work activities and with difficulties with domestic and general life activities as outlined in the body of my report”.
The doctor was also asked by the applicant’s solicitors to discuss the opinions of Dr Harrington, and specifically whether the applicant’s pain generator was at L2/3 or at L5/S1, and whether foraminal blocks would be of diagnostic assistance. The doctor opined:
“Ms Budden’s MRI scans of the lumbar spine reveal degenerative changes of disc narrowing at the L2/3 level with minor bulging and degenerative changes with moderate disc bulging at the L5/S1 level as at 2 April 2020.
She has had a repeat MRI scan recently, but I have no results of this examination available to me today.
However, the changes seen on the MRI scan at the L2/3 level in the form of disc degeneration and bulging is in keeping with her symptoms of pain and reduced sensation (as outlined by Dr Harrington in his report of 10 March 2020).
Although one cannot be sure, it is more likely than not that the problem level is at the L2/3 level rather than at the L5/S1 level.
Ideally, the foraminal blocks suggested by Dr Harrington at the L2/3 and L5/S1 level to try and localise the problem level more accurately could be helpful. However, in view of Ms Budden’s prior experience with the caudal block and the concern that the same complication may occur following the foraminal injections suggested above, her concerns need to be taken into account and it would be reasonable to accept that the L2/3 level is the more likely site of her problem.
On the whole, the radiological investigations and the clinical findings are in keeping with the degree of instability at the L2/3 level”.
Finally, the doctor opined that the proposed fusion surgery, while there are no guarantees, “may well decrease her ongoing symptoms to a significant degree”.
The ARD contains reports from Professor Ghabrial in relation to his treatment of the applicant up to 28 June 2018 (pages 33-40).
The professor initially consulted with the applicant on 20 June 2017, and took a consistent history of her back injury whilst working for the respondent in 2004. She initially experienced severe right sciatica, which settled to some extent but with continuing episodes of back spasm and cramps in her legs. She had adjusted her lifestyle but her symptoms were getting worse. On examination, the professor found a protected sitting and standing attitude, decreased postural lordosis, markedly reduced spinal movements, decreased extension, decreased lateral bending, decreased rotation, marked paraspinal lumbar spasm, and marked tenderness. He reviewed recent radiological studies and concluded that “the L2/3 and L5/S1 segments are giving her pain”. He discussed various treatment options but recommended “to leave things alone and avoid activities involving heavy lifting, excessive bending and excessive twisting”.
The professor reviewed the applicant on 11 October 2017. He considered further radiological studies and again recommended that the applicant adjust her lifestyle and avoid certain activities. He gave the applicant the option of undergoing a caudal block procedure, and discussed the possibility of surgery in the form of a right L2/3 discectomy. However, both he and the applicant agreed that surgery should be avoided as long as possible.
The professor next reviewed the applicant on 9 April 2018 and found similar findings on examination to those that he found on 20 June 2017. In a report to the applicant’s solicitors of that date, he opined:
“I have thoroughly investigated her and the main problem is most likely related to the right L2/3 disc herniation however I believe that the lower 3 discs of the lumbar spine have contributed to some extent to her present clinical features and disabilities.
A caudal block has been recommended and failing to improve with the caudal block, surgery may be considered however Ms Budden has decided to continue with pain management.”
And:
“From the history given to me by Ms Budden, I believe that her employment is considered to be the main contributing factor to the present clinical features, disabilities and impairment.”
The professor further reviewed the applicant on 28 June 2018 after she had undergone the recommended caudal block procedure. That procedure had failed to improve her symptoms, and surgery in the form of a right L2/3 discectomy was discussed and agreed to by the applicant. The professor does not record any discussions between him and the applicant regarding side effects from the caudal block procedure.
There are no further reports in the ARD from the professor after 28 June 2018, although there are reports from him in the reply after that date.
There are various radiological reports in the ARD (pages 61-67). I have considered these reports, as have the applicant’s treating doctors and the doctors qualified by both parties. I will refer to the findings in the reports in more detail if directed to them during the parties’ submissions. However, relevant findings include:
(a)    a CT scan on 24 January 2005 revealed a degenerative and narrowed L2/3 disc, a very small posterocentral disc protrusion at L5/S1, and osteoarthritis in the left L5/S1 facet joint;
(b)    a MRI scan on 11 August 2005 revealed degenerative disc changes at L2/3 and L5/1 with minor bulging at both levels;
(c)    a MRI scan on 6 June 2017 revealed “moderate L2/3 disc degeneration with broad based posterior discovertebral bar which is causing mild effacement of thecal sac” as well as “L5/S1 disc degeneration with mild diffuse annular bulge and facet joint arthropathy”;
(d)    a MRI scan on 27 February 2019 revealed a right paracentral bulge at L2/3 as well as a small central disc bulge at L5/S1;
(e)    a bone scan on 29 March 2019 revealed “intense discovertebral uptake and associated active marginal osteophyte right L2/3…moderate discovertebral uptake left L5/S1. Surgical bony defect right L2/3 posteriorly…moderately active left L5/S1 facet joint disease”; and
(f)    a MRI scan on 2 April 2020 revealed severe degenerative disc disease at L2/3 and a narrowed degenerative L5/S1 disc - the conclusion was narrowed L2/3 and L5/S1 discs with facet joint osteoarthritis on the left at L5/S1.
The applicant also relies upon the following medical evidence:
(a)    medico-legal reports from Dr Plowman both dated 21 December 2005 (from page 41 of the ARD) - the doctor diagnoses a L5/S1 disc injury in association with L2/3 and L5/S1 facet joint degeneration, caused or aggravated by the applicant’s work with the respondent – he finds ongoing back pain as well as restriction of spinal extension and rotation, and he assesses her as having 7% whole person impairment – he opines that she is unfit for work involving regular bending, heavy lifting, labouring and manual work;
(b)    a Workers Compensation Commission Medical Assessment Certificate from Assessor Ostinga dated 10 July 2006 (page 53 of the ARD) – the assessor diagnoses discogenic disease of the lumbar spine and assesses the applicant as having 7% whole person impairment - he notes that she complained to him of decreased movement and stiffness in the lumbar spine, as well as an inability to lift weights or sit for long periods of time without producing back pain; and
(c)    a Workers Compensation Commission Medical Assessment Certificate from Assessor Anderson dated 1 November 2018 (page 1 of the applicant’s AALD) - the assessor notes the applicant’s history of the development of low back dysfunction predominantly affecting the L2/3 and L5/S1 discs, and he also notes the recent decompression procedure at the L2/3 level on the right side (as she was still recovering from that procedure, he was unable to assess the level of her whole person impairment) - relevantly, the assessor notes her caudal block procedure was not helpful and caused a “very severe headache which lasted for about a month”, and he also notes that she “came across as a stoical lady who had a very powerful work ethic and also good determination to do whatever she can to improve her circumstances”.

Respondent’s evidence

The respondent has included in the Reply (at pages 26 and 27) reports from Professor Ghabrial dated 28 November 2019 and 3 February 2020. Unfortunately, the Commission does not have before it any reports from the professor between 28 June 2018 and 28 November 2019, during which time he performed surgery upon the applicant, and during which time she consulted with him regularly according to her statement evidence.
The 28 November 2019 report refers the applicant to Dr Russo for pain management, advising that her clinical features had improved following the surgery that he had performed upon her but that she still had residual pain. She was not keen on having any further injections as they made no difference to her symptoms (the caudal block procedure had not helped her), and she may therefore be a candidate for a spinal simulator.
The 3 February 2020 report is written to the respondent’s insurer, and opines that the applicant has reached maximum medical improvement regarding her back injury.
The respondent otherwise relies upon three medico-legal reports from Dr Harrington.
The first report dated 10 March 2020 is found at page 13 of the Reply. He had originally consulted with the applicant on 8 March 2017, but a copy of the report following that consultation is not in evidence before the Commission. Since that consultation, she had undergone surgery with Professor Ghabrial on 21 August 2018, but had in fact found that “the operation made her worse”. Her ongoing pain was mainly in her lower lumbar area, more on the right side, but “she does not really describe sciatica”. She had numbness on the outer side of her right leg, and some restrictions with flexion and extension.
The doctor reviewed radiological investigations and noted:
“The original scans showed degenerative changes at L2/3 and L5/S1. The clinical findings were consistent with pathology coming from L2/3 and she eventually had surgery at this level.
Dr Ghabrial organised some repeat scans due to ongoing pain after surgery in August 2018. The bone scan indicates increased uptake at L2/3.”
The doctor diagnosed mechanical back pain from failed surgery at L2/3, and opined that employment was “the substantial cause for the diagnosis and treatment to date”. He assessed whole person impairment at 11%.
The doctor consulted with the applicant again on 15 July 2020, and his report of that date is found at page 18 of the Reply. He obtained a treatment update from her, and again noted her view that her ongoing pain had become worse since her 21 August 2018 surgery. She had undergone pain management and injections. A caudal block injection had not reduced her pain and had given her headaches. It seems that the doctor had assumed that the caudal block injection occurred after the surgery, rather than before it.
She was taking Panadol Osteo and Endone. Further surgery had been recommended for her by Dr Spittaler.
The doctor reviewed recent radiological investigations and noted:
“I note the flexion/extension views of her lumbar spine which is inconclusive for pathology causing her ongoing pain. The MRI obviously shows the changes at L2/3.”
The doctor provided his diagnosis and opinion as follows:
“Ms Budden developed back pain at work in December 2004 which is attributed to the nature and conditions of employment. The right hemi-laminectomy at L2/3 and L3 decompression surgery by Dr Ghabrial in August 2018 was accepted under compensation.”
The doctor then considered the further surgery recommended for the applicant by Dr Spittaler, but recommended instead:
“a foraminal block at the L2/3 level and possibly the L5/S1 level (at least 2 months apart). I know she has not been keen to have further treatment given her poor response with Dr Russo however we should ascertain whether her pain is coming directly from L2/3 before proceeding with a fusion”.
He was not convinced that “L2/3 is the culprit for her presentation”, despite that level having always been diagnosed as her pain source. He did not believe that her significant clinical findings correlated with her radiological findings.
He was sceptical that further surgery at L2/3 would make much difference to her pain levels, considering that her previous surgery had made her worse and considering that spinal surgery for localised pain was not as reliable as spinal surgery for radiculopathy.
The doctor reported again on 20 September 2021 (page 23 of the Reply), following questions posed to him by the solicitors for the respondent. After reviewing the reports provided to him from Drs Spittaler and Poplawski, he noted that both doctors also recommended that the applicant undergo injections prior to surgery. He concluded:
“Whilst we can agree that the L2/3 is the likely culprit, you would want to be pretty sure before considering spinal surgery when the first operation has not lived up to your expectations”.
The doctor noted the applicant’s reluctance to undergo foraminal blocks because of the side effects that she had experienced following her previous caudal block, and while opining that a foraminal block is less invasive than a caudal block, he also agreed that “her reservations are understandable”.
His opinion was:
“We know that back operations do not have a high success rate, and revision surgery for back pain is even less reliable than primary surgery. Whilst she may have suffered a migraine for a couple of days following a caudal injection, if she has failed back surgery, it will be for the rest of her life.
If the risk vs reward rationale for a foraminal block is explained and she still does not want to go ahead (which is always her choice), hopefully she has informed consent of the ramifications of failed back surgery.
At this stage the most likely source of her pain is L2/3 but the odds of further surgery alleviating her symptoms is probably the same as flipping a coin.
If Ms Budden understands the risks and takes it all on board, then still wants to go ahead, we can say she has informed consent.”

Applicant’s submissions

The applicant’s submissions have been recorded and I will not repeat them in detail.
The applicant points to the significant symptoms that she has experienced over a considerable period of time (since 2004) due to her work injury, and which are outlined in her statement evidence. She has sought many other forms of treatment over this considerable period of time which have not produced any reduction in those symptoms, and she now wishes to proceed with the surgery suggested by Dr Spittaler.
The applicant outlines that she initially underwent conservative treatment, then consulted with Professor Ghabrial, then underwent a caudal block, then underwent surgery at the L2/3 level, then consulted with Dr Russo and had further conservative treatment, and finally consulted with Dr Spittaler.
The applicant emphasises the side effects which she experienced following the caudal block procedure. It is submitted that she developed severe migraines, which were not transient and which were terribly debilitating. This history is important and worthy of respect, and should not be minimised. It explains her understandable reluctance to undergo foraminal blocks. That understandable reluctance is then factored into the decision-making of Dr Spittaler.
It is entirely reasonable for an individual to take into account such side effects, and Dr Poplawski specifically advised that “her concerns need to be taken into account”.
Under questioning, the applicant conceded that her statement evidence did not contain a significant history regarding the side effects which she experienced following the caudal block procedure. However, she relied upon the histories that she had given to Drs Poplawski and Harrington in this regard, and she submitted that those histories were evidence of the facts recorded, in accordance with Guthrie v Spence [2009] NSWCA 369.
The applicant also submits that Dr Spittaler does not believe that foraminal blocks are likely to provide “helpful information” - see paragraph 40 above.
In relation to the possibility raised by Dr Harrington that the applicant’s symptoms in fact arise from L5/S1 rather than L2/3, the applicant submits variously:
(a)    Professor Gabriel was satisfied that the symptoms came from L2/3 as he operated upon that level on 21 August 2018;
(b)    Dr Spittaler considered that the applicant’s pain was located at a higher level than L5/S1, and that the upper level of L2/3 was more likely to be the “culprit”;
(c)    Dr Spittaler used his clinical judgement and was satisfied in recommending to the applicant to proceed with further surgery at L2/3; and
(d)    Dr Poplawski points out (see paragraph 47 above) that the altered sensation in the lateral cutaneous nerve distribution of the applicant's right thigh found by Dr Harrington on 15 July 2020 was consistent with L2/3 being responsible for her pain.
The applicant draws the Commission’s attention to Dr Poplawski’s opinion that the surgery suggested by Dr Spittaler has the opportunity to reduce the applicant’s symptoms to a significant degree. Further, Dr Harrington’s opinion is that the odds of the surgery alleviating her symptoms are similar to “flipping a coin”. The applicant submits that a reasonable inference from this opinion is that Dr Harrington believes that the surgery has a 50% chance of alleviating the symptoms. The applicant also submits that these are “good odds” when considering the severe pain that she has suffered for many years.
The applicant submits that Dr Harrington is not necessarily disagreeing with the surgery proposed by Dr Spittaler, but simply opining that it is premature.
The applicant submits that the costs involved in the proposed surgery, while not being inexpensive, are reasonable considering the nature of the surgery. The surgery is not “unusual or experimental”, and it is commonly used to treat persistent and serious back symptoms.
The applicant concludes by referring to the authorities of Rose v Health Commission (NSW) (1986) 2 NSWCCR 2 (Rose) and Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab), and asking the Commission to weigh up and take into account the following factors:
(a)    the persistence and severity of the applicant’s symptoms;
(b)    the clinical signs of nerve root irritation at L2/3;
(c)    the opinions of two experienced surgeons (Drs Spittaler and Poplawski) in relation to the proposed surgery being a reasonable form of treatment;
(d)    conservative and less invasive treatment has not improved the applicant’s symptoms;
(e)    the surgery proposed is usual treatment for back pain; and
(f)    the surgery proposed has a reasonable chance of reducing the applicant’s symptoms.
Taking these factors into account, the applicant should be provided with funding for the proposed surgery.

Respondent’s submissions

The respondent’s submissions have been recorded and I will not repeat them in detail.

The thrust of the submissions is that the applicant has not discharged her onus of proof. “We are dealing with significant surgery that has been proposed and if we could turn something that is likely into a probability”, that would allow a finding that the applicant had discharged her onus.
Specifically, the applicant has not exhausted treatment options alternative to the surgery suggested by Dr Spittaler. She has not exhausted pain management or “conservative care”. She is unwilling to undergo the foraminal blocks.
Under questioning, the respondent conceded that there was only evidence to suggest that the applicant had refused the foraminal blocks as well as medication suggested by Dr Russo (on the basis that the medication would cause her bowel issues). There was a suggestion from Professor Ghabrial (see paragraph 61 above) that she may benefit from a spinal cord stimulator, but there was also evidence from the applicant that she had not been informed about this suggestion. There was no other evidence from Dr Russo about the possibility of treatment with a spinal cord stimulator, and the respondent conceded that “it could only take it (that is, the submission that treatment with a spinal cord stimulator was alternative treatment for the applicant) so far”.

The respondent also focused upon Professor Ghabrial’s comment to the applicant that he had “done my job” (see paragraph 25 above) as inferring that he did not believe that any further surgery would benefit the applicant.
The respondent submits that Dr Spittaler deals with “likelihoods rather than probabilities”, and in fact agrees with Dr Harrington regarding foraminal blocks turning “a likelihood into a probability”.
The respondent also submits that Dr Spittaler considered the foraminal blocks to be a “low risk” procedure. There is no evidence that this has been understood by the applicant, and neither Dr Spittaler nor Dr Poplawski address that the procedure is different to the caudal block procedure that previously caused the applicant side effects, when they deal with the reasonableness of the applicant’s reluctance to undergo the procedure. The respondent asks “at this point in time is it reasonably necessary to do an extremely invasive and serious spinal fusion without doing a low risk procedure”?
The respondent submits that Dr Poplawski uses equivocative language in his report such as “more likely” and “ideally”. He opines that foraminal blocks would be helpful.
The respondent reviews the radiological evidence in the ARD (see paragraph 58 above) and submits:
(a) there is no significant pathology or obvious signs of nerve root impingement, and
(b) the pathology that has been present over the years is of equal significance at both L2/3 and L5/S1.
The respondent also reviews the report of Dr Plowman and the Medical Assessment Certificate of Assessor Ostinga (see paragraph 59 above). The respondent submits that Dr Plowman (in December 2005) considered the applicant’s pathology at L5/S1 to be more significant than her pathology at L2/3, and it also submits that Assessor Ostinga agreed with Dr Plowman’s conclusions as he found the same level of whole person impairment (7%) as Dr Plowman.
The respondent then reviews the reports of Dr Harrington, which in its submission highlight the uncertainty involved in recommending the surgery proposed by Dr Spittaler. Specifically highlighted are the following:
(a)    “She does not really describe sciatica” (see paragraph 64 above);
(b)    the applicant had not had a block at L5/S1 despite there being pathology at that level - see page 19 of the Reply;
(c)    spinal surgery for localised pain is not as reliable as surgery for radiculopathy (see paragraph 73 above); and
(d)    it should be ascertained whether the applicant’s pain is coming directly from L2/3 before proceeding with the fusion (see paragraph 71 above).
The respondent also addresses Dr Harrington’s “flipping a coin” comment (see paragraph 76 above). It is submitted that the comment refers to which level (L2/3 or L5/S1) is the applicant’s correct pain generator, rather than whether Dr Spittaler’s proposed surgery would be successful.
The respondent submitted that the applicant had not established that “all sources of conservative treatment have been exhausted”. Under questioning however, the respondent conceded that that was not the relevant test that the Commission needed to apply in order to determine whether Dr Spittaler’s proposed surgery was reasonably necessary treatment.
Under further questioning as to why the proposed surgery should be forborne by the applicant, the respondent submitted that it should be forborne in order to identify the applicant’s pain generator (L2/3 or L5/S1) from “the level of likelihoods to probabilities”. When questioned as to whether there was a significant difference between likelihoods and probabilities, the respondent advised that its submission was put in those terms as “we are not dealing with a procedure (the foraminal blocks) that is as invasive as the applicant fears” and that is low risk. When questioned further as to why the applicant should be “forced” to have that procedure performed, the respondent submitted that its submission was in the context of Dr Spittaler’s proposed surgery being a lifetime choice, and therefore “it makes it reasonably necessary to take this further smaller interim step”.

Applicant’s submissions in reply

These submissions have been recorded and I will not repeat them in detail.
In essence, the applicant submits:
(a)    there may be “minor points of detail” missing from the evidence, but the Commission needs to consider the whole body of evidence presented and use its common sense judgement in order to determine whether the applicant has discharged her onus of proof;
(b)    the respondent’s submission that the applicant’s radiological scan reports demonstrate equal significance at L2/3 and at L5/S1 fails to take into account the finding in the 2 April 2020 report of severe (emphasis added) degenerative disc disease at L2/3, whereas the changes at L5/S1 are never described as severe;
(c)    “If the failure to have every conceivable other form of treatment was an important part of the test, nothing would ever be reasonably necessary in the form of a spinal fusion” - there are always further steps that can be taken in treatment, but that cannot be determinative of the issue before the Commission as to whether Dr Spittaler’s proposed surgery is reasonably necessary treatment;
(d)    in the respondent submitting that foraminal blocks are a low risk procedure, it fails to take into account that there is some risk in the procedure - the respondent’s position is “akin to forcing someone to undergo a form of investigation they don’t want to undergo” - the applicant has a rational reason for not wanting to undergo the foraminal blocks and no medical practitioner has fundamentally disagreed with that reason – it is important to give proper weight to the rational concerns of the applicant in this regard; and
(e)    given the symptoms that the applicant has experienced over such a long period of time and her rational reasons for not wanting to undertake alternative treatment to Dr Spittaler’s proposed surgery, that surgery is treatment that should not be forborne by her.

FINDINGS AND REASONS

Whether the surgery proposed by Dr Spittaler (L2/3 posterior interbody fusion) as referred to in his 4 June 2020 report, is reasonably necessary medical treatment as a result of an injury to the applicant's back which was contracted by her in the course of her employment with the respondent – deemed date of 7 December 2004.

Section 60 (1) of the 1987 Act provides as follows:
“(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).”
Section 59 of the 1987 Act then defines ‘medical or related treatment’ as including:
“(a)    treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist,
(b)     therapeutic treatment given by direction of a medical practitioner,
(d)     the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,
(e)     any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,
(f)      care (other than nursing care) of a worker in the worker's home directed by a medical practitioner having regard to the nature of the worker's incapacity,
(f1)    domestic assistance services,
(g)     the modification of a worker's home or vehicle directed by a medical practitioner having regard to the nature of the worker's incapacity, and
(h)     treatment or other thing prescribed by the regulations as medical or related treatment,”.
The first question to therefore determine is whether the surgery proposed by Dr Spittaler is reasonably necessary treatment.
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, where his Honour said:
“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.”
In Diab, Roche DP considered Rose and concluded:
“86. 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.
87. Giles JA added (at [49] in O’Shea) that the qualification whereby the necessity must be reasonable calls for an assessment of the necessity having regard to all relevant matters, according to the criteria of reasonableness. His Honour was talking in the context of whether an easement should be granted under s 88K of the Conveyancing Act 1919, which provides that ‘the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement’. However, his Honour’s observations are applicable in the present matter and are clearly consistent with Clampett.
88. In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
·(a) the appropriateness of the particular treatment;
·(b) the availability of alternative treatment, and its potential effectiveness;
·(c) the cost of the treatment;
·(d) the actual or potential effectiveness of the treatment, and
·(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
89. With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
I accept the statement evidence of the applicant. The respondent has not suggested otherwise. She sustained work injuries to her back in 2004, and has had symptoms since. She has undergone various forms of treatment, including medication, exercise, rest, physiotherapy, a caudal block injection, as well as surgery (a right hemi-laminectomy at L2/3 and L3 decompression surgery) with Professor Ghabrial.
None of this treatment has had a significant effect upon her symptoms, and there is no medical evidence to suggest that she does not need ongoing treatment for those symptoms. The question for the Commission is whether the specific surgery proposed by Dr Spittaler is the treatment that should be afforded to her in this regard.
In providing opinions regarding this surgery, I do not find that there are significant differences between the opinions provided by Drs Spittaler, Poplawski, and Harrington.
Dr Harrington (see paragraph 71 above) would prefer that the applicant undergo foraminal blocks in order to confirm that her pain is coming from L2/3 before the surgery is performed. He is also sceptical (see paragraph 73 above) that the surgery will make much difference to her pain levels.
However, when questioned further by the respondent’s solicitors, he conceded (see paragraph 76 above) that the most likely source of her pain was L2/3, and that “the odds of further surgery alleviating her symptoms is probably the same as flipping a coin”. I do not accept the submission of the respondent that this comment can be taken as Dr Harrington suggesting that without the foraminal blocks, determining the applicant’s correct pain generator (L2/3 or L5/S1) is like “flipping a coin”. Although the doctor could have used more accurate wording, in its context, I accept the applicant’s submission that the comment can be taken as Dr Harrington suggesting that the surgery proposed by Dr Spittaler has a 50% chance of alleviating the applicant’s back symptoms.
Dr Spittaler is inconsistent in his opinion as to the helpfulness of foraminal blocks. He opines (see paragraph 40 above) at one point that they “may be helpful in narrowing down the pain”, and at another point that “it is unlikely it will provide helpful information”. His clinical opinion is that the applicant’s symptoms likely come from L2/3 on the basis that it is the more degenerative level, and that her pain was higher than he would expect with pain from L5/S1. He “would think that the appropriate level to treat is L2/3”.
Dr Poplawski believes (see paragraph 50 above) that the foraminal blocks “could be helpful” in more accurately localising the pain generating level, but accepts that “it is more likely than not that the problem level is at the L2/3 level rather than at the L5/S1 level”. He bases this opinion on radiological investigations and his clinical findings.
Dr Poplawski also opines (see paragraph 51 above) that the proposed surgery “may well decrease her ongoing symptoms to a significant degree”.
The respondent makes a great deal of the need for the applicant to turn “likelihoods” into “probabilities” in order for the proposed surgery to be reasonably necessary treatment. However, as Drs Harrington, Spittaler, and Poplawski have all determined it likely that the applicant’s pain generator is at L2/3, I find those unanimous opinions to be sufficient to make it probable that that is the level of the applicant’s pain. This finding also finds support in:
(a)    the fact that the surgery that Professor Ghabrial performed upon the applicant was at L2/3;
(b)    the fact that the applicant’s 2 April 2020 MRI scan revealed severe degenerative disc disease at L2/3; and
(c)    Dr Poplawski’s opinion (see paragraph 47 above) that the findings of altered sensation in the lateral cutaneous nerve distribution of the applicant’s right thigh are consistent with irritation coming from the L2/3 level.
Further, having consulted with the Macquarie Dictionary, “likelihood” is defined as “the state of being likely or probable; probability”. I fail (in the context of the opinions provided by Drs Spittaler, Poplawski, and Harrington) to see any significant distinction between a likely opinion and a probable opinion.
The respondent submits that considering the potential lifetime choice involved in Dr Spittaler’s proposed surgery, it is reasonably necessary for the foraminal blocks to be performed first, especially considering that the blocks are of low risk and a “smaller interim step”. However, both Drs Spittaler and Poplawski are confident to recommend the surgery without the blocks occurring, and I read Dr Harrington’s opinion (see paragraph 76 above) as even agreeing to the surgery (albeit possibly with some reluctance) as long as the applicant has informed consent.

Having considered the whole of the evidence presented, I am comfortably satisfied that the applicant has discharged her onus of proving on the balance of probabilities that Dr Spittaler’s proposed surgery is reasonably necessary treatment for her long-standing back symptoms.
In doing so:
(a)    I do not agree with the respondent’s submission that I can infer that Professor Ghabrial does not believe that any further surgery would benefit the applicant - the professor has not provided a specific opinion in this regard, and he last consulted with the applicant in 2019;
(b)    I accept the applicant’s evidence given to Dr Poplawski (see paragraph 45 above) and Assessor Anderson (see paragraph 59 above) as to the debilitating migraine symptoms that she suffered following her caudal block procedure – no submission has been made to the contrary;
(c)    I reject the respondent’s submission that the applicant needed to lead evidence (from both herself as well as Drs Spittaler and Poplawski) that she understood that the foraminal blocks were a different and low risk procedure, compared with the caudal block procedure - while there seems to be consensus that the foraminal blocks are a low risk procedure, there is still some risk involved – further, neither Dr Spittaler, Dr Poplawski nor Dr Harrington consider the applicant to be acting unreasonably (Dr Harrington advising it to be her choice) in refusing the foraminal blocks, considering her history of side effects with the caudal block procedure - the willingness of particularly Drs Spittaler and Poplawski to accept the applicant’s position in this regard leads me to infer that they did have some degree of concern that the foraminal blocks would induce side effects, or at least that they did not see the foraminal blocks as essential to the applicant’s treatment;
(d)    in relation to the respondent’s submission that the applicant’s pathology shown on her radiological evidence over the years is of equal significance at both L2/3 and L5/S1, I accept that Dr Plowman on 21 December 2005 found more significance at the L5/S1 level, but I also note that the 2 April 2020 MRI scan seems to suggest more significance at the L2/3 level – in any case, the radiological evidence has been fully considered in the opinions expressed by Drs Spittaler, Poplawski and Harrington; and
(e)    I accept the applicant’s submission that it is not necessary for her to exhaust all other reasonable sources of treatment prior to undergoing Dr Spittaler’s proposed surgery – the presence of alternative treatment options is only one of the factors to be considered, in accordance with Rose and Diab.
In considering the matters referred to in Rose and Diab, I find:
(a)    the surgery proposed by Dr Spittaler is appropriate treatment for the applicant’s back symptoms – this is clearly the opinion of both Drs Spittaler and Poplawski, and the inference that I draw from the evidence of Dr Harrington (especially considering his 20 September 2021 report) is that while he believes that foraminal blocks should be performed prior to the surgery, if the applicant is simply not going to undergo those blocks, he would agree to the surgery (albeit possibly with some reluctance) as long as the applicant has informed consent;
(b)    in relation to the alternative treatment available to the applicant, her reluctance to undergo the foraminal blocks or take further medication are reasonable and rational concerns of hers and are not squarely criticised in any of the medical evidence – considering this reluctance, Drs Spittaler and Poplawski were still willing to recommend fusion surgery;
(c)    there is no medical evidence (other than a brief suggestion from Professor Ghabrial, to which I do not attribute much weight) that a spinal cord stimulator would be alternative treatment available to the applicant – the respondent correctly did not pursue its submission in this regard;
(d)    I accept the submission of the applicant as to the costs of the proposed surgery being reasonable considering its nature - the costs are not excessive for the type of surgery proposed and the respondent has led no evidence nor made any submission regarding the unreasonableness of the costs;
(e)    in relation to the potential effectiveness of the proposed surgery, Dr Poplawski opines that it may well decrease the applicant’s back symptoms to a significant degree, and I have inferred that Dr Harrington opines that it has a 50% chance of alleviating those symptoms – while Dr Spittaler does not seem to have specifically addressed the potential effectiveness of the surgery, he has recommended it to the applicant (see paragraph 40 above) as her only option other than “continued conservative treatment (in other words living with what she has got at the moment)”, and
(f)    considering the opinions of Drs Spittaler and Poplawski, as well as what I have referred to above as Dr Harrington’s reluctant agreement as long as the applicant has informed consent, I find that the proposed surgery has acceptance by medical experts as being appropriate and as likely to be effective.

It is now necessary to consider whether there is a material contribution between the injury to the applicant’s back which occurred with a deemed date of 7 December 2004 and the surgery proposed by Dr Spittaler.
In Murphy v Allity Management Services Pty Limited [2015] NSWWCCPD 49, Roche DP stated:
“58. Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman[2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd(1996) 12 NSWCCR 716).”
The respondent does not dispute that the applicant sustained back injuries at work with a deemed date of 7 December 2004. Its submissions did not address the material contribution between those injuries and the need for the surgery proposed by Dr Spittaler, but instead concentrated upon whether that surgery was reasonably necessary.
Dr Harrington however (see paragraph 66 above) opined that the applicant’s employment was the substantial cause of her need for treatment to date.
Professor Ghabrial also (see paragraph 55 above) opined that the applicant’s employment was the main contributing factor to her clinical features, disabilities and impairment.
Dr Poplawski (see paragraph 49 above) diagnosed that the applicant sustained a work injury to her back at the L2/3 level, which has resulted in subsequent disc degeneration and nerve root irritation.
Dr Plowman in 2005 had initially diagnosed injuries at the applicant’s L2/3 and L5/S1 levels, caused or aggravated by the applicant’s work with the respondent. Assessor Ostinga in 2006 then diagnosed lumbar spine disease and found that the applicant’s work injuries had led to her suffering a permanent whole person impairment of 7%. The applicant’s radiological investigations then continue to find pathology at L2/3 and L5/S1 up to the present date.
I have accepted the applicant’s statement evidence that she continues to suffer significant back symptoms as a result of her work injuries. The medical evidence is unanimous that she needs ongoing treatment in this regard.
I have accepted that Dr Spittaler’s proposed surgery is reasonably necessary in order to treat her back symptoms, and relying upon the opinions of Dr Harrington, Professor Ghabrial, and Dr Poplawski, there is sufficient evidence to find the necessary material contribution between the applicant’s current back symptoms (and therefore her need for reasonably necessary treatment in relation to those symptoms) and the back injuries that she sustained in 2004 as a result of the nature of her employment duties with the respondent then.

SUMMARY

Considering the whole of the medical evidence presented, I find that the surgery proposed for the applicant by Dr Spittaler (L2/3 posterior interbody fusion) as referred to in his 4 June 2020 report, is reasonably necessary medical treatment as a result of an injury to the applicant's back which was contracted by her in the course of her employment with the respondent – deemed date of 7 December 2004.
There will be an award for the applicant pursuant to s 60 of the 1987 Act, and the respondent will be ordered to pay for the costs of and incidental to the surgery (L2/3 posterior interbody fusion) proposed for the applicant by Dr Spittaler in his 4 June 2020 report.

[2022] NSWPIC 514

16 September 2022