Carpenter v Federation Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Carpenter v Federation Council [2024] NSWPIC 199
APPLICANT:	Noel Eric Carpenter
RESPONDENT:	Federation Council
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	22 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for cost of proposed left-sided decompression surgery at L4/5, in respect of accepted injury to lumbar spine; respondent conceded that the proposed surgery was reasonably necessary but disputed that it was reasonably necessary as a result of the injury; respondent maintained that the Commission did not have jurisdiction, due to the provisions of section 59A; applicant submitted the Commission has the power to make a finding as to the reasonable necessity of the proposed surgery; consideration of Patrick Stevedores Holdings Pty Ltd v Fogarty and Flying Solo Properties Pty Ltd t/as Artee Signs v Collet; Held – Commission has jurisdiction to make a finding as to the reasonable necessity of the proposed surgery as a result of the injury; finding that the proposed surgery is reasonably necessary as a result of the injury.
DETERMINATIONS MADE:	The Commission determines: 1. The surgery as claimed by the applicant, that is left-sided decompression surgery at L4/5, is reasonably necessary as a result of injury on 20 July 2005.

STATEMENT OF REASONS

BACKGROUND

The applicant, Noel Eric Carpenter (Mr Carpenter) is employed by the respondent, Federation Council, (the council) as a gardener.
Mr Carpenter sustained an injury to his back on 20 July 2005 when he fell through a square metal manhole cover.
The incident and injury report register completed by the applicant on or about 20 July 2005, stated:
“While walking over stormwater pit, lid on pit turns over when stood on. I fell in being struck on head as lid turned [illegible]. I bounce on edge of pit (left hip) resulting in severe bruising & sore to neck. Co-worker Brad Kenny removed the lid from on me and get me.”
The nature of the injury was stated to be severe bruising. The location of the injury was left hip/head.
Liability for injury to the applicant’s lumbar spine has been accepted.
The applicant completed an Employee Claim Form (the claim form) on 22 March 2022. It stated “worsening of an injury, previous. Falling into stormwater pit (2006).” The injury was a lower back injury. The injury had not resolved, “required surgery.”
On 10 January 2023, StateCover Mutual Limited (StateCover), the respondent’s insurer, issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The date of injury was stated to be 22 March 2022.
StateCover disputed that the applicant had sustained injury, including a “disease injury” to his lumbar spine; that employment was a substantial contributing factor to any injury or pathology to his lumbar spine; and that he was entitled to either weekly payments or medical or related treatment.
By letter dated 15 May 2023, Mr Carpenter’s solicitors requested on his behalf that StateCover review its decision.
On 29 May 2023, StateCover issued the applicant with a notice pursuant to s 287A of the 1998 Act. It advised that it maintained its decision to dispute liability for his claim.
The applicant lodged an Application to Resolve a Dispute (the Application) on
16 November 2023.
The applicant claimed that 1 April 2006, he injured his back when he fell through a square metal manhole cover.
The applicant claimed the sum of $20,000 for future medical, hospital, or related expenses, being the cost of lumbar spinal surgery.
The respondent lodged its Reply on 8 December 2023.

ISSUES FOR DETERMINATION

The parties agreed that the following issues remained in dispute:
(a) whether the Personal Injury Commission (the Commission) has jurisdiction to determine the dispute, given the operation of s 59A of the Workers Compensation Act 1987 (the 1987 Act), and
(b) whether the proposed surgery, that is left-sided decompression surgery at L4/5, is reasonably necessary as a result of the injury on 20 July 2005.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing on 7 March 2024, in person. Mr Adhikary of counsel, instructed by Ms Lawes, appeared for the applicant, who was present, with his support person, Ms Dolby. Mr Stockley of counsel, instructed by Mr Kemp and Ms Georges, appeared for the respondent. Mr Payne of StateCover attended but was excused from the hearing.
The Application was amended by consent to plead that the date of injury was 20 July 2005. The claim made by the applicant was for the costs of left-sided decompression surgery at L4/5.
The respondent conceded that the proposed surgery was reasonably necessary medical treatment but disputed that the necessity for the surgery resulted from the applicant’s accepted injury, that is, there was a causation issue.
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.
At the conclusion of counsel’s submissions, I enquired as to whether the dispute was affected by the provisions of s 59A of the 1987 Act.
The parties were directed to provide written submissions on this issue, including whether the respondent sought to rely on the provisions of s 59A of the 1987 Act, as it had not previously notified the applicant of such reliance.
Each party has provided written submissions.
The parties were also directed to advise, on or before 8 April 2024, whether they requested that the matter be listed for further preliminary conference. No such request was made.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents (AALD) dated 29 February 2024, and attached documents, filed by the applicant, and
(d)    AALD dated 6 March 2024, and attached documents, filed by the respondent.

Oral evidence

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

FINDINGS AND REASONS

Evidence of the applicant, Noel Eric Carpenter

The applicant’s first statement is dated 23 June 2023. It is headed “Arising out of Telephone Conference of 7 June 2023”. It is assumed that the applicant brought previous proceedings that were discontinued.
He had read the letter from StateCover denying liability again.
In terms of his medical records, he had absolutely no recollection of complaints of back problems prior to the injury he said occurred in approximately June 2005.
The only strenuous activities he engaged in prior to 2005 was about work. He started work with the council when he was 17 and got a job there as a permanent when he was 18.
He did not know how a notation or record had been made that he had fallen from a height. He certainly was not in circumstances where he fell from a height.
It could well be that someone had mis-recorded what had happened to him at the council in 2005.
In terms of the GP (general practitioner) records, and the very limited references to any treatment for a back condition in or after 2005, “there’s a couple of things that I need to say about those records.”
Firstly, they did not accurately reflect the number of times he was at the doctor and specifically raising issues about his back. He found the GP dismissive of his concerns. It reached the stage where at various times he stopped talking to him about it. That was “part and parcel of why I left him and went to an alternative GP.”
He felt he had been “fobbed off over many years.”
He did not believe there was ever a time when he was completely symptom-free, that is he did not have recurring pain and discomfort in his back and/or restrictions and/or the recurring pain in his back. He had to carefully manage himself over many years to make sure he could keep working.
The applicant made a further statement dated 12 September 2023.
He commenced service with the council when it was known as the Urana Shire Council, in or about 1988/89. His work had always been outdoor and labour intensive. He started as a labourer and picked up qualifications or tickets as a truck driver and plant operator. His most recent classification was gardener.
He started with the council in good health and certainly had no history of any problems with his back. There was an incident which had been recorded as variously occurring either in 2005 or 2006 where he hurt his back. It had been described as going through a trapdoor, and Dr Lee [sic: Dr Le Leu] had got a fair summary of how it happened.
From that date on, he “want[ed] to be clear” that he had had a problem with his back. It had never been the case that he had sustained periods where he had been completely pain-free and feeling great. Rather, it had been a case of him having to manage the pain and manage himself as to how he coped.
He did not have good days for any substantial period. Rather, he would say he had days that were not as bad. He understood the insurance company in its section 287 letter are [sic] seeking to rely upon a record made by Dr Love in or about 2010. He had no recollection of the discussion Dr Love had recorded or was referring to.
It was a case of him trying to follow medical advice and “going from doctor to doctor which could be from GP to specialist.” He remembered Dr [sic: Mr] (John) McMahon, shortly after he was referred to him, said words to the effect:
“We are going to manage you conservatively and see how you progress.”
He had seen Mr McMahon at the Cabrini Hospital.
He knew Dr Le Leu had referred to him having problems before 2005/2006. He did not remember the problem he had recorded in looking up all those old clinical notes. However, all he could say was the only activity he was undertaking at that stage was work activity and the employer would know more about that “I suppose than I would now in terms of the paperwork.”
He had commitments to supporting his wife and children and trying to get on with their life, so he was focusing on trying to get through his medical problems and “not make too big a fuss about what was going on with my back.”
He was originally seen by a GP at Urana Medical Centre. He got referred to physiotherapy and part of that was dealt with in Corowa. His condition did not resolve, and he got referred to a specialist in Melbourne. That was Mr McMahon.
He was also referred to a pain specialist, Dr Brett Todhunter, of Albury-Wodonga. Nothing seemed to be working and it was somewhat disillusioning, particularly when all he wanted to do was get better and get back to work.
He found that the level of pain fluctuated over the years. Very often, as part of managing his pain, he would struggle out of bed and have a really hot shower to get himself mobile. That was not just in winter, but plenty of times in the summer. He found the pain was becoming unbearable.
While he was working through 2020 and onwards, he found the level of pain was increasing in severity. He was not playing social sports or water-skiing. He was just going to and from work and trying to get on with life.
He had to seek further advice. That was a somewhat confusing process. He was back at the GP at Urana. He had lost faith with him and changed to see a Dr Chen at Albury. He knew it was a distance to travel but could not seem to get any “cut through” with the first GP or his long term GP. He got a referral to Dr (Michael) Ow-Yang. He recommended surgery.
Since then, the insurer had declined liability and sought to undermine what he had said about a few things, particularly trying to say he was not complaining about problems in his back with the local GP at Urana. That was not right. He had made complaints and been disappointed.
He was still seeing his local GP. He tried to manage the pain medication he took, which at times could be Endone and at other times Ibuprofen and Panadol. He was careful about what he took. He had been working on with his constraints. He looked forward to when he could have the surgery.
There had been issues regarding incontinence and concern regarding his bowel actions. At that stage the focus was on having the back surgery. He was on public waiting lists in the ACT (Australian Capital Territory) and Melbourne.
He had tried to enquire about accessing physiotherapy records from 2005/2006 with Health Focus of Dean Street, Albury. They did not appear to have any records, and the physiotherapist he saw at the time was no longer with them. He understood his name is Heinrich Bolinghaus.
The applicant’s final statement is dated 28 February 2024.
He had seen the “Incident and Injury Register” dated 20 July 2005. All the responses to the questions were in his handwriting. He accepted that his date of injury was 20 July 2005.
When the lid to the pit suddenly turned over like a trap door, he fell into the pit. It was sudden and unexpected. The steel plate lid fell on top of him. The pit was approximately 1m deep.
When he fell, he hit the side of the pit fairly hard and fell into the pit at a very awkward angle. The plate came down on the top of his back and he was trapped with his head lower than his back.
He was in severe pain and believed it was in his left hip and head. Shortly thereafter, it was identified that he had a lower back problem, not a hip problem, and that was the way it stayed.
He “just want[ed] to make it clear again” that there was no period where he had made “some sort of full recovery” and did not have pain and discomfort.
The insurer may have marked his file as fit for pre-injury duties or having returned to pre-injury duties on 8 October 2008. It may have closed the file. That did not mean he was not still in pain and discomfort.

Medical evidence

Urana Medical Centre

Some of the records are handwritten and difficult to read. I have done my best to decipher them.
On 7 April 2003, there is a notation of “lower back pain” “abdominal pain”, and “shooting pain to both legs”. A CT scan was requested, and analgesia was given.
On 15 April 2003, the notation appears to read “Normal CT. Reassured.”
On 20 June 2003, the notation appears to read “Backache. Panadeine Forte given.”
On 6 February 2006, the notation appears to read “presented to discuss a CT report done in 2002.”
On 13 March 2006, the notation appears to read “back pain with referred pain to both hips. CT requested.”
There is a report of MRI of the lumbar spine dated 11 May 2006. The clinical notes read: “36 year old male with left sciatica for evaluation.”
The opinion recorded was L4/5 disc degeneration with loss of height and signal. Endplate changes were noted with a component of oedema. There was a broad diffuse annular bulge, more pronounced on the left side, and the changes contributed to moderate narrowing of the left L4 lateral nerve root canal.
On 20 April 2009, Dr Asim Khan recorded that the applicant had brought all the MRI scans. He had an appointment with “ortho” on 7 May 2009 and would be reviewed after that.
There is a report of MRI of the applicant’s lumbosacral spine and right hip dated 18 May 2009. The clinical data recorded was “Lumbar pain, right hip pain radiating to the lower limb. ? Disc prolapse. ? right hip joint pathology. Had a fall in stormwater pit.”
The report concluded that there was advanced severe disc degenerative disease with Modic Type I and II changes of L4/L5. This was associated with large extruded disc material, causing mild spinal canal stenosis and effacement of the lateral recesses. No foraminal stenosis or nerve root impingement was seen. The MRI of the right hip was unremarkable.
On 1 June 2009, Dr Khan recorded that the applicant had seen a specialist. He had an MRI showing some changes at L4/5. He was advised and counselled about pain.
On 23 August 2010, the applicant was referred by Dr Khan to Dr Jane Bleasel. Dr Khan recorded that he had been complaining of symptoms in his hand. His mother had severe rheumatoid arthritis.
Dr Khan noted that the applicant had some back problems last year. “Degenerative disease of lower lumbar vertebrae for that spinal surgeon advise the surgery or steroid injection. Noel has [sic: was] not keen on surgery at the moment”. Dr Khan recorded that the applicant’s history included back ache and abdominal pain on 7 April 2003.
On 17 April 2013, Dr Veerendra Giri Yaramati noted the applicant complained of chronic back pain. He had a work related injury, managed conservatively.
On 23 April 2013, Dr Yaramati recorded that the applicant had chronic back pain. He recorded the date of the work injury as 2003.
Copies of the applicant’s CT and MRI scans from 2006 and 2009 were available. He had been managed conservatively.
The applicant had seen Mr McMahon and Dr Todhunter, who had advised nerve root injections, but the applicant was “not keen”. He was now complaining of gradual worsening of lumbar back pain, with radiation down both legs, but no weakness or other neurological symptoms. There was a recent worsening of lower neck pain, more on the left, with no upper limb symptoms.
The applicant was not using any analgesia and was trying to cope with the pain.
On 26 April 2013, Dr Yaramati recorded that the applicant was “feeling normal himself”. He was given a request for CT scan of the lumbar and cervical spines.
On 3 May 2013, there is a report of CT of the applicant’s cervical and lumbar spines. The clinical data recorded “Chronic back and neck pain. For further evaluation. History of lower back injury 6 years ago.”
The CT of the applicant’s lumbar spine was reported to demonstrate degenerative changes at L4/5 with significant loss of disc height. There was minor narrowing of the thecal sac anteriorly, including narrowing of the lateral recesses with moderate left and mild to moderate right neural exit foraminal narrowing. There was also moderate right L5/S1 facet arthropathy. No focal neural compressive disc protrusion or extrusion was identified.
On 21 May 2013, Dr Yaramati recorded having explained the results of the CT scan of the lumbar and cervical spines. The applicant was reassured and advised about lower back pain.
On 20 January 2020, Dr Yaramati recorded that the applicant had lumbar back pain worsening this morning. He sometimes had pain radiating to the left thigh. There was no recent injury. “Works as gardener. Stated his mother suffered with arthritis.”
Dr Yaramati advised the applicant to have a CT scan of his lumbar spine, after which he would be reviewed.
On 24 January 2020, there is a report of a CT of the applicant’s lumbosacral spine. The clinical information was recorded as “Progressive worsening of lower back pain radiating to left thigh.”
A note was made of previous CT imaging of the lumbar spine from 3 May 2013, and CT and MRI of the lumbar spine from 2009 and 2006.
The report summarised that there had been interval progression in spondylodegenerative change at L4/5, with a left foraminal/lateral recess disc protrusion. This caused marked narrowing of the left lateral recess and moderate to marked narrowing of the left L4/5 neural foramen, with high likelihood of compromise of both the descending left L5 nerve root and exiting left L4 nerve root.
Dr Yaramati reviewed the applicant on 30 January 2020. He discussed and explained the CT scan.
Dr Yaramati recorded “Noel symptoms resolved and pain free”. They discussed the options of long term management. “NSAID (non-steroidal anti-inflammatory drugs)” and “opinion from neurosurgeon if symptoms get worse.”
The applicant was “happy with plan.” He “understood well as this is progressive disease and can get worse later and need to see specialist for intervention.”

On 15 March 2021, Dr Yaramati recorded that they had discussed the applicant’s previous CT of his lumbar spine and cervical spine and chronic degenerative arthritis changes. The applicant was offered a referral to a specialist for a second opinion and “advised conservative management.”
On 4 June 2021, Dr Yaramati recorded that the applicant complained of pain in the mid-thoracic region while working with a whipper snipper. He stated he sustained a workplace injury “>10 years ago (possibly 2006) and injured T6 and T12 vertebra, would like to get this checked.” The applicant had no neurological symptoms or radiating pain.
Dr Yaramati referred the applicant for MRI of his thoracic and lumbar spines.
On 29 June 2021, there is a report of MRI of the applicant’s thoracic and lumbar spines. The clinical data recorded progressive worsening pain in the thoracic and lumbar spines. There was a history of injury to T6 and T12 and lumbar spine when “fell from height more than 15 years ago.”
The report summarised L4/5 degenerative spondylosis. A left paracentral disc extrusion with inferior migration of herniated disc material was noted. This resulted in left subarticular recess stenosis and compression upon the descending left L5 nerve root in the subarticular recess.
On 1 July 2021, Dr Yaramati recorded having discussed with the applicant the results of the MRI. The applicant was asymptomatic at that stage.
Dr Yaramati advised the applicant about the symptoms of left L5 sciatica pain/weakness of limb, and “advised review if any concerns”. He also advised about work, and lifting/bending/squatting, and that the applicant should keep active.
On 6 September 2021, Dr Yaramati recorded that the applicant complained of a flare up of left sided sciatica pain. There were no symptoms of neurological deficit or cauda equina symptoms.
Dr Yaramati advised the applicant to take neuropathic analgesia. He did not go well with Lyrica and used Endep, which helped with sleep.
On 6 October 2021, Dr Yaramati recorded that the applicant’s sciatic pain had resolved.
On 21 October 2021, Dr Yaramati recorded that the applicant had a flare up of left sided sciatica pain. He had a history of L5 compression due to disc herniation.
Dr Yaramati referred the applicant to Dr Ow-Yang. He noted progressive symptoms of left sided L5 radiculopathy. The history included back ache and abdominal pain on 7 April 2003 and spondylosis on 30 January 2020.
On 21 March 2022, Dr Yaramati recorded that the applicant stated he had an old WorkCover related injury in 2006 [sic]. He was having a meeting with his employer tomorrow and requested a copy of any medical information related to his back injury.
Dr Yaramati advised they had medical information since 2010 in that clinic. They could verify the applicant’s old paper file documents from previous records and would provide a copy if they could find any relevant documents.
On 13 May 2022, there is a report of MRI of the thoracic and lumbar spines. The clinical notes record progressive worsening pain in the lumbar spine, which radiated to the buttocks and legs. There was a history of a back injury more than 15 years ago. “Please compare with previous imaging”.
The report concluded that comparison with the MRI dated 29 June 2021 showed no significant change, including at L4/5.

Corowa Medical Centre

On 22 March 2006, Dr Megan Barrett recorded that the applicant was concerned that he had a hernia. He also complained of severe back pain and radicular pain in the L3/4 distribution.
The applicant had had an injury at work one year ago when he fell into a stormwater drain, landing on his left buttock, and a heavy piece of concrete fell on him. Since then, he had had ongoing back pain that had become worse recently. It was aggravated “++” by digging/crowbarring and heavy lifting. He was unable to sleep due to pain. He took Nurofen. A Urana doctor had ordered a CT scan.
Dr Barrett’s impression was of disc herniation at L3/4. The applicant was to rest his back, avoid heavy lifting “etc”, and take anti-inflammatories.
On 31 March 2006, Dr Barrett recorded that there was no improvement in the applicant’s symptoms with rest. He was unable to take Naprosyn due to reflux. He had not been able to afford the CT scan, booked for 24 April 2006.
Dr Barrett noted that the applicant had had back pain since 2000, but “definite progression” of symptoms since the accident. Urana Council could “vouch for” the decline in function of his back and increase in pain. They were keen to support him with rehabilitation and encouraged him to get WorkCover.
The notes record “NSW WorkCover – Initial”.
On 13 April 2006, Dr Barrett recorded that the applicant’s back was still not improving, and he had ongoing radicular pain in his right hip and down his leg.
On 28 April 2006, Dr Barrett recorded that the applicant was becoming depressed with chronic pain. He was unable to turn over in bed. The pain was mostly radiating to his right buttock, groin, and anterior thigh. “Work being supportive.”
On 9 June 2006, Dr Rodney Barkman recorded that the applicant had burning pain in his right leg, “incapacitating.” It prevented “all – even shaving”. The applicant slept on the floor. They discussed that he had “nothing to lose by procrastinating operation, because if has fusion will have to give labouring away.”
On 13 June 2006, Dr Barrett recorded that the applicant had telephoned. He was very upset that Mr Falkenberg felt nothing could be done, and was in excruciating pain. He would like a second opinion from Terry Hillier, who helped his friend.
On 19 June 2006, Dr Barrett recorded “back pain still severe”. The applicant was seeing the physiotherapist and compliant with exercise.
On 3 July 2006, Dr Barrett recorded that the applicant’s spirits were better. He was feeling more optimistic about the future. He was trying to relax his back at night on an electric blanket. He was sleeping better, but still only four to five hours at a time, due to pain. He was “amazed” by the support he had received from work and his mates. He was tolerating pain and using occasional Panadol.
On 24 July 2006, Dr Barrett recorded that the applicant’s pain was slowly improving. He felt that he could tolerate it, was happy with the jobs at work and keen to try mowing. He had seen Mr McMahon, who ordered a bone scan, suggested conservative management for now, and referred him to Dr Todhunter.
The applicant felt happy with this, but still wanted to go to Terry Hillier, despite feeling convinced that he did not want to pursue surgery. He was still sleeping only four hours at a time.
Dr Barrett encouraged the applicant not to attend Mr Hillier, but to focus on conservative management for one year, to give himself a proper chance to heal.
On 10 August 2006, Dr Michael Love recorded that the applicant’s main problem was that he was not sleeping. He woke with pain, especially in the right leg, after a few hours. His back had improved “+++” in the past four weeks. He was “very happy re same”.
On 23 August 2006, Dr Love recorded that the applicant had seen Dr Todhunter yesterday. He prescribed Lyrica to use at night. The applicant was going well with modified duties. He appeared more relaxed and “very positive re getting better.”
On 20 September 2006, Dr Love recorded that the applicant was going well on Panamax alone. He did not feel he needed Lyrica. “See letter from OT”. The applicant agreed with permanent work restrictions. He still had some pain in the right leg but could live with its intensity.
On 18 October 2006, Dr Love recorded that the applicant felt he needed a disc replacement. He spent a long time explaining same, and why he would not want to rush in. The applicant was asking to see Mr Hillier about an operation, but Dr Love encouraged him to see Dr Todhunter again to consider a course of injections.
On 1 November 2006, Dr Love recorded that the applicant was seen with Lisa Barry, from Rehab Outcomes. He had tried Lyrica, which made him very drowsy. It eased the pain right off, but he could not tolerate it. He had been doing 95% of his usual duties.
They discussed lots of issues. The applicant was “prepared to give medication a go.”
On 17 January 2007, Dr Love recorded that the applicant found Endep very helpful. He slept well with one tablet. He was still considering an operation, but Dr Love discouraged that today, as he was going so well.
On 27 July 2007, Dr Love recorded that the applicant was happy with permanently modified duties. He denied being depressed, and said if he stayed positive and did his exercises, he was fine.
On 28 November 2007, Dr Love recorded that the applicant was taking no medication apart from Panadol. He was starting to get pain down the right leg and into the groin again. He was still keeping very fit and active. He was worried about the increasing pain level, and concerned he may collapse completely.
Dr Love’s plan was that the applicant re-start Endep and Voltaren.
On 4 July 2008, the applicant consulted Dr Love about an upper respiratory tract infection. Dr Love noted “back has been going well.”
On 1 September 2008, Dr Heinz Deiter recorded an exacerbation of low back pain with bilateral sciatica in the last two weeks. The applicant “woke up with it.” He had had no painkillers or Voltaren in the last two weeks. He saw the physiotherapist that afternoon.
On 11 September 2008, Dr Love recorded that the applicant had improved compared with last week, but still stiffened up if he drove any distance. It was very uncomfortable to travel. The applicant had pain in the lower spine, to both buttocks. It felt like his “skin is stuck in hot water”.
The applicant went back to work on Monday, “just coping” with Panamax or Voltaren Rapid. He was not using much Endone as it made him too drowsy to drive. Prior to this flare up, he was “good all year.”
Dr Love encouraged the applicant “++” to continue conservative treatment.
On 8 October 2008, Dr Love recorded that the applicant had levelled out to a tolerable level. He was using tablets prn and was back to close to what he was prior to the flare up. He was not seeing “Heine” (possibly Mr Bolinghaus) at all. He had been doing an exercise program at home. “Back on pushbike, right leg still burning.”
The plan was for the applicant to try to return to work on his previous duties, with intermittent physiotherapy.
On 8 December 2008, the applicant consulted Dr Love for a skin check. Dr Love recorded “back overall pretty stable.”
On 30 March 2009, Dr Love recorded that the applicant had had pain in his right leg “+++” again for the past eight weeks. Physiotherapy was not helping. He was keen on re-assessment by “orthopod.? whether to see a Dr Soleman in POW [Prince of Wales] Sydney”.
The applicant could still work, but it was stressful. He felt he needed a definitive prescription. The plan was for him to try Norspan.
On 18 November 2010, the applicant sought treatment for pain in his left elbow. Dr Love recorded that the applicant’s back settled after last year. He “didn’t have an operation in the end as settled spontaneously”. He had the odd twinge. He had been working ever since, doing normal work.

Mr M P Falkenberg – orthopaedic surgeon

Mr Falkenberg reported to Dr Barrett on 31 May 2006.
Mr Falkenberg recorded a history that the applicant had a long-standing L4/5 disc abnormality that had become symptomatic in the last year or so in his work at Urana Shire. Despite his complaint of right sided sciatic type symptoms, there was no serious nerve root compression and his problem “really is a disordered L4/5 disc with referral into the leg.” Conservative treatment was recommended.
The applicant felt there was little trouble with his back before the injury in June [sic] 2005. “After persistent probing”, he admitted some minor back trouble in the past, severe enough to see a chiropractor.
Mr Falkenberg recorded a consistent history of the injury in 2005. Since then, the applicant felt that his back and leg had been the problem, with pain on his pain diagram across the low lumbar spine, radiating down the back of the right leg and calf.
The applicant had been off work in the last six weeks because of an exacerbation of symptoms brought about by trying to do his normal duties over the last year. He was now on light duties.
Mr Falkenberg referred to a CT scan dated 24 April 2006 and MRI, which he had ordered before seeing the applicant.
Mr Falkenberg opined that the applicant had a symptomatic L4/5 disc. This was causing back pain radiating to the leg, but there was no right sided neurological compression. The leg pain constituted referred somatic pain from the inflamed L4/5 disc.
The applicant’s only options were to “give this time and hope it settles”, change his occupation to avoid heavy physical work, or ultimately have a spinal fusion. In Mr Falkenberg’s opinion, the latter option was a “salvage” for when Mr Carpenter was really unemployable.
Mr Falkenberg opined that patients who had a WorkCover claim, and back surgery, statistically did very poorly with spinal fusion, with less than 50% improving. Return to pre-injury manual work was the exception rather than the rule.
Mr Falkenberg therefore recommended non-operative treatment for the foreseeable future but would be happy to see the applicant if things got worse and they needed to consider fusion. In the meantime, he suspected that the applicant needed to be on restricted duties, avoiding heavy physical labouring, on a permanent basis.

Mr John McMahon - neurosurgeon

On 12 July 2006, Mr McMahon reported to Dr Barrett.
Mr McMahon recorded a consistent history of the injury “during June [sic] 2005”. Since then, the applicant had experienced lumbar back pain with dysaesthetic pain involving his abdomen and hip region. He also experienced lower limb pain involving the posterior aspect of his right thigh, and paraesthesia of the dorsum of the foot. He occasionally had left hip pain but there was no evidence of sciatica.
MRI scan had revealed significant L4/5 intervertebral disc degeneration with adjacent Mobic end plate changes. There was a central L4/5 disc bulge. Apart from some very mild left L4 compression in the exit foramen, Mr McMahon could not detect any nerve root compression.
Mr McMahon opined that the majority of the applicant’s symptoms were related to discogenic pain from the L4/5 disc degeneration. A component may have been related to the facet joints.
Mr McMahon had referred the applicant to Dr Todhunter for an assessment of his facet joints and organised a bone scan.
At that stage, Mr McMahon did not feel that any surgical intervention was possible. However, should the applicant’s symptoms worsen, consideration for lumbar fusion or disc replacement surgery would be warranted. This would depend on the outcome of the facet joint investigations and treatment.
On 21 August 2006, Mr McMahon again reported to Dr Barrett, having reviewed Mr Carpenter on 17 August 2006.
The applicant had undergone a bone scan that again revealed increased activity involving the L4/5 intervertebral disc, signifying disc degeneration.
Mr McMahon felt that the majority of the applicant’s ongoing back pain was due to L4/5 disc degeneration. There may have been a component of facet joint degeneration, but the majority was discogenic. As far as the lower limbs were concerned, he could not detect significant nerve root compression.
Mr McMahon felt that the applicant’s management should initially involve a chronic pain assessment by Dr Todhunter. Depending on his longer term symptoms, a lumbar fusion or disc replacement may need to be considered. However, Mr McMahon would certainly wait for some months or perhaps a year before making this decision.
On 12 May 2009, Mr McMahon reported to Dr Love.
Mr McMahon noted having seen the applicant “a few years ago”, and that the applicant had been seen by Dr Todhunter a number of times for ongoing pain management.
The applicant reported a recent worsening of his symptoms and right lower limb pain from his buttock to his foot. He had also noted left plantar foot dysaesthesia. The symptoms were particularly severe when he stood after sleeping.
Mr McMahon recommended that the applicant try Valium, given the severity of his associated muscle spasms. He had also organised repeat lumbar MRI and right hip joint MRI.
On 11 June 2009, Mr McMahon again reported to Dr Love, having reviewed the applicant on 4 June 2009.
The applicant continued to describe quite severe lumbar back pain, worse in bed, and significantly affecting his sleep. He also reported severe right sided sciatica when ambulating.
A recent repeat MRI revealed very severe intervertebral disc degeneration at L4/5, with a significant central disc bulge, which was causing severe lateral recess stenosis bilaterally. This was severely compressing the L5 nerve roots bilaterally within the lateral recesses. There were also Modic changes at the L4/5 intervertebral disc space.
Due to the severity of the applicant’s intervertebral disc degeneration and subsequent disc prolapse and nerve root compression, Mr McMahon had strongly recommended L4/5 lumbar fusion and decompression and rhizolysis of the L5 nerve roots bilaterally. He did not perform lumbar fusion surgery, so had referred the applicant to a neurosurgery colleague, Mr Greg Malham.
Mr McMahon also reported to StateCover on 11 June 2009.
Mr McMahon advised that the applicant had quite severe ongoing symptoms. He referred to the MRI.
Mr McMahon strongly recommended a lumbar decompression, L4/5 microdiscectomy, and lumbar fusion. He sought approval for the referral to Mr Malham and for the surgery.
Mr McMahon reported to Dr Chen on 5 December 2022.
Mr McMahon noted that the applicant had a work related accident in June [sic] 2005, and he initially saw Mr Carpenter in 2006.
The applicant had fallen approximately 1m down a stormwater drain. He developed lumbar back pain and right-sided sciatica associated with foot paraesthesia.
Investigations had revealed L4/5 intervertebral disc degeneration. Mr McMahon recommended pain management with Dr Todhunter.
The applicant was reviewed in 2009, and due to ongoing symptoms, Mr McMahon suggested lumbar fusion surgery, but the applicant did not proceed at that time.
The applicant now presented with progressive symptoms that significantly affected his daily living. He reported chronic constant bilateral lumbar back pain over L4/5 and bilateral sciatica, worse on the left.
The applicant also reported regular episodes of left-sided buttock pain radiating to his foot, associated with lower limb and paraesthesia. His symptoms were aggravated with prolonged sitting or standing. His buttock and lower limb symptoms were worse than his back pain. He had been managed with physiotherapy.
Mr McMahon strongly recommended a lumbar decompression and lumbar fusion surgery. He had referred the applicant to Mr Rogers for discussion regarding the lumbar fusion.
On 5 December 2022, Mr McMahon reported to StateCover, requesting approval for the applicant to be seen by Mr Rogers.
Mr McMahon reported that the applicant had experienced many years of ongoing lumbar back pain, which had progressively worsened, and he now had severe left-sided sciatica. Mr McMahon referred to his recommendation for surgery.

Dr BA Todhunter – pain management specialist

Dr Todhunter reported to Mr McMahon on 8 September 2006.
Dr Todhunter recorded that the applicant’s pain started when he fell into a pit last year. At one stage his pain became so intractable some five months after the injury that he was bed bound “for a couple of weeks” and became very depressed, and at one stage suicidal.
The applicant had “worked back from there”, with physiotherapy and spontaneous improvement, and was back working as a gardener. This mainly involved sitting on a ride on mower, which he managed quite well.
While the applicant was still considerably troubled by pain, he was vastly better than a few months ago and was able to function. He was therefore quite concerned about any interventional treatment that may stir up his pain and put him back where he was. He was not really keen to have diagnostic medial branch nerve blocks at that time.

Dr Todhunter thought the best approach would be a trial of Lyrica, at least at night, as the applicant’s nights were very disturbed. He would send the applicant samples of Lyrica. If that improved the situation considerably, he would get approval from the insurer to continue that in the longer term.
Dr Todhunter reported to Dr Love on 14 February 2007.
The applicant had “come a long way since he was in the depths of despair” with lumbo-sacral pain that was presumably due to an L4/5 disc problem “which was really not surgically fixable in view of the lack of neurological problem.”
Mr Carpenter was back working full time, with some permanent restricted duties. His mood and general approach were vastly improved. He still had trouble sleeping at times but found Endep very helpful. He had trialled Lyrica, but the side effects were too great, making his work unsafe.
Dr Todhunter opined that the applicant had learnt a lot and was overall a stronger person. He had a lot more tools to help him through difficult periods.
As far as the applicant’s back pain went, it was most likely that it would be fairly static “with a few ups and downs.”
If the applicant had a flare up, Dr Todhunter suggested that he rest for no more than two days, as he would only go backwards after that time. He could increase his Endep to get him through the night, and a short burst of anti-inflammatories would be a reasonable third option. If he was still struggling, increased oral analgesia with perhaps Oxycontin, MS Contin, or a Norspan patch for a short period would be reasonable.
Dr Todhunter had not organised to see the applicant again.

iHealth Albury

On 22 February 2022, Dr Wei Cheng Chen recorded that the applicant had injured his back at work in 2006 [sic] and was on WorkCover. He recently had pain and limited movement of the back for a few weeks, no loss of the bowel and bladder, no perineal pain.
They had discussed reactivating the WorkCover claim for the applicant’s current symptoms. He advised the applicant to get his medical records transferred, and he would do further investigations after reviewing them.
On 3 March 2022, Dr Chen recorded that back pain and limited movement persisted. The pain now radiated to the left buttock. The applicant had had a Telehealth consultation with Dr Ow-Yang last week and had come for the results.
Dr Chen had not received anything from Dr Ow-Yang, or the records from Urana Medical Centre.
The applicant would like to seek a second opinion from another neurosurgeon. He remembered seeing Mr McMahon. There was a long discussion on the funding of the treatment. “Going back to WorkCover?” The applicant was seeking personal injury compensation. “Join private health insurance”.
On 26 March 2022, Dr Chen recorded that back pain that radiated to the left leg, and limited movement, persisted. He had not received any medical records. He explained Dr Ow-Yang’s report.
There was a long discussion on management options. The applicant’s union had requested reactivating the old WorkCover claim. They would await the outcome of that application.
On 1 April 2022, Dr Chen recorded progressive worsening back pain that radiated to the buttocks, with pins and needles in the left lower leg, and defecation issue and urinary hesitancy for a couple of months. The applicant had tried to access the original WorkCover claim.
Dr Chen contacted the applicant’s case worker [sic] at StateCover regarding the information he required. He advised the applicant could work full time with certain restrictions.
An initial certificate of capacity was issued, with the recommendation for analgesics, physiotherapy, specialist referrals, and consideration of up-to-date investigation.
On 8 April 2022, Dr Chen recorded that back pain that radiated to the buttocks persisted. Panadol and Naproxen helped temporarily. They discussed reactivation of the old WorkCover claim.
On 14 April 2022, Dr Chen recorded worsening back pain that radiated to the buttocks, with pins and needles in the left lower leg, as the weather was getting colder. Endep helped a lot. “WorkCover capacity with the same restrictions.”
On 21 April 2022, Dr Chen recorded that the applicant still had back pain that radiated to the buttock and leg. His case worker had requested MRI of the spine for the independent assessor.
Dr Chen advised the applicant to go to the same radiology service so comparison with the previous scan could be made.
On 13 May 2022, there is a report of MRI of the thoracic and lumbar spines. The clinical notes record progressive worsening pain in the lumbar spine, which radiated to the buttocks and legs. There was a history of a back injury more than 15 years ago. “Please compare with previous imaging”.
The report concluded that comparison with the MRI dated 29 June 2021 showed no significant change, including at L4/5.
On 17 June 2022, Dr Chen recorded that the applicant’s case worker would like him to be referred to another neurosurgeon for a second opinion. The applicant was happy with Mr McMahon.
On 25 August 2022, Dr Chen recorded persistent back pain and limited movement. He had not heard from the applicant’s case worker or Mr McMahon. The applicant needed a WorkCover certificate.
On 19 October 2022, Dr Chen recorded persistent back pain and limited movement. The pain in the back radiated to the buttocks and knees. “No recent trauma”.
Dr Chen advised the applicant that a letter from StateCover had requested further information about his injury, but with a wrong date of injury. The applicant was happy to give StateCover the information.
On 24 November 2022, Dr Chen recorded that back pain and limited movement persisted. The applicant had not got approval from WorkCover [sic] to seek a second opinion.
On 9 December 2022, Dr Chen explained Mr McMahon’s report. Mr McMahon had referred the applicant to Mr Myron Rogers for a discussion regarding lumbar fusion surgery.
On 14 January 2023, Dr Chen recorded that StateCover had decided to stop supporting the applicant’s claim. He still needed a WorkCover certificate.
On 4 March 2023, Dr Chen advised the applicant to continue his current treatment, including physiotherapy, analgesics, and back protection. They may need to find out if he was eligible for a care plan for chronic back pain.
On 12 May 2023, Dr Chen recorded that the applicant would dispute StateCover’s decision. He was to continue with back support, physiotherapy, prn analgesics, and “discussing with his lawyer for the dispute.”

Dr Michael Ow-Yang – neurosurgeon

Dr Ow-Yang reported to Dr Yaramati on 25 February 2022.
Dr Ow-Yang recorded that the applicant suffered long-standing left lower limb radicular pain. He had an initial work related back injury in 2006 [sic], involving a left L4/5 disc protrusion with left L5 radiculopathy. He suffered a motor deficit, and it took two years to recover his ability to walk normally.
The applicant had been seen by Mr McMahon at that time, and surgery was discussed. “For some reason” the applicant did not undergo surgery.
The applicant continued to suffer intermittent pain radiating from the low back to the left lateral thigh and lateral calf, in a typical L5 distribution. He had good days and bad days, but felt the pain was becoming more persistent. He denied weakness or paraesthesia. He had continued to work every day since the injury.
As the consultation took place by Telehealth, Dr Ow-Yang was unable to examine the applicant. He referred to the recent MRI. He opined that the L4/5 disc space had undergone a more rapid degenerative process due to the injury, involving loss of disc height and Modic changes about the disc endplates.
Dr Ow-Yang’s working diagnosis was of ongoing intermittent left L5 radicular pain, secondary to a left L4/5 calcified disc bulge, causing severe lateral recess stenosis and severe left L5 nerve compression.
Dr Ow-Yang had explained the natural history of a lumbar disc protrusion.
There was initial inflammation that irritated the adjacent nerve root and could cause pain. After six weeks, many patients improved without the need for escalating treatment.
If pain was significant and disabling, despite maximal non-surgical treatment, such as analgesics and steroid injections, then a definitive surgical option could be considered.
If the pain was tolerable, and conservative treatment was undertaken, then the disc fragment may gradually be reabsorbed over 12 to 24 months. Some of the disc protrusions may also calcify, in which case nerve compression and ongoing symptoms may occur. The affected disc then underwent degenerative fusion as an adaptive process to injury or chronic biomechanical stress, over subsequent years or decades.
Dr Ow-Yang had discussed further treatment options. A targeted steroid injection had a 50% chance of improving pain and the effect could be temporary.
A minimally invasive left L4/5 laminotomy plus rhizolysis could be considered to decompress the symptomatic nerve root. There was a 50% to 70% chance of improving the lower limb radicular pain, a 50% chance of improving weakness or paraesthesia, and a 50% chance of improving low back pain symptoms.
Dr Ow-Yang opined that there would have been a higher probability of improving the pain syndrome had surgery been undertaken more acutely close to the time of injury. Now that the symptoms and problem had been present for so long, it may be more difficult to resolve with nerve decompression surgery.
Dr Ow-Yang summarised that the applicant suffered intermittent left L5 radicular pain, secondary to a left L4/5 calcified disc bulge, causing severe lateral recess stenosis and severe left L5 nerve compression. The original disc protrusion occurred in 2006 [sic], and had now calcified, but there was ongoing nerve compression that may explain ongoing symptoms. The applicant may consider left L4/5 laminotomy plus rhizolysis to decompress the symptomatic nerve.

Dr Vidyasagar Casikar – neurosurgeon

Dr Casikar was qualified by the respondent and reported first on 30 November 2022.
Dr Casikar noted that the applicant was working as a gardener for the respondent, mainly in a reduced capacity, and mainly delegating heavy work to younger colleagues.
Dr Casikar recorded a history that on 22 [sic] July 2005, the applicant fell into a stormwater pit and the lid closed. A co-worker rescued him. He developed low back pain that gradually increased over the next 24 hours.
The applicant consulted his family physician, who advised medication for pain, and CT and MRI scans. Following the MRI, he consulted Mr McMahon, who advised that he should manage his problem non-surgically.
Between 2006 and 2010, the applicant had multiple episodes of back pain and spasms, and dropped to the ground many times, primarily as a result of this.
The applicant had consulted Dr Todhunter, who advised him to take Lyrica. He had not had any other injury but that in 2005.
The applicant indicated that back pain was progressively increasing. His legs felt weak. He tripped on his left leg. He also had pins and needles in the left leg, suggestive of sciatic pain. Physiotherapy had improved [his condition] to some extent.
Dr Casikar opined that the applicant appeared to have had a workplace aggravation following the event in 2005, and the aggravation had ceased. He agreed with Mr McMahon that it was an aggravation on a pre-existing degenerative disease.
Since his injury, Mr Carpenter had progressive degenerative disease of the lumbar spine. The examinations in 2021 and 2022 suggested there was a disc protrusion at L5/S1 segment on the left side. Dr Casikar opined this was consistent with the natural progression of the degenerative disease. He did not believe this was because of the injury in 2005.
Dr Casikar diagnosed aggravation on a pre-existing degenerative disease. The aggravation had resolved and was superseded by significant progressive degeneration of the lumbar spine.
Dr Casikar opined that the applicant’s employment was not a substantial contributing factor to his present complaints. He had significant degenerative disease of the lumbar spine, which had progressed. One feature of progression of degenerative disease was a disc protrusion, which had been identified in the recent MRI examinations.
Dr Casikar further opined that the symptoms experienced by Mr Carpenter in March 2022 were a natural progression of the degenerative disease of the lumbar spine. This was not related to the injury of 2005, and not due to the nature of his employment with Urana Council.
The applicant’s condition was a deterioration of the constitutional degenerative disease of the lumbar spine. Dr Casikar opined that employment was not a substantial contributing factor to the degeneration. Degeneration was a normal phenomenon, and a genetically determined medical problem. It was a progressive condition. The applicant’s complaints were due to the natural progression of the disease.
Dr Casikar opined that the main non-work related factor contributing to the applicant’s problem was the constitutional degenerative disease of the lumbar spine.
The applicant required further management because of the disc protrusion at L4/5 compressing on the S1 nerve root. He had sciatic pain, which was causing significant problems.
Dr Casikar opined that the applicant “should try a couple of cortisone injections.” If that did not help, he would have to have L4/5 decompression and rhizolysis and microdiscectomy at that level. Dr Casikar agreed with Dr Ow-Yang’s management strategy.
Dr Casikar opined that the need for any treatment was not because of the work related injury. However, the applicant did require treatment and Dr Ow-Yang had arranged to have the treatment done as a public patient in Canberra Hospital, which Dr Casikar believed was appropriate.
Dr Casikar provided a second report dated 6 March 2024, although he had not re-examined the applicant.
Dr Casikar reported that Mr McMahon’s opinion did not change his opinion, except that Mr McMahon suggested spinal fusion as a treatment for degenerative disease.
The concept that degenerative disease could be corrected by spinal fusion was a popular one. “Unfortunately,” the outcome of these fusions was very poor.
Dr Le Leu’s report also did not change Dr Casikar’s opinion.

Mr Myron Rogers – neurosurgeon

Mr Rogers reported to Mr McMahon on 12 December 2022.
Mr Rogers referred to the history recorded by Mr McMahon, which he did not repeat.
The applicant told Mr Rogers his main issue was the symptoms radiating down the left leg into the foot. He had some low back and bilateral hip pain that was not significant.
Mr Rogers reviewed the applicant’s MRI scans of April 2022 and 2009.
In 2009 there was evidence of chronic disc degeneration at L4/5 with nearly complete loss of disc space height and Modic changes in the adjacent vertebral bodies.
In 2022, the findings were similar. The additional pathology was that there was disc material on the left at L4/5, which lay behind the L5 vertebral body, compressing the L5 nerve root.
In relation to surgery, Mr Rogers recommended left sided decompression at L4/5. He saw no compelling reason for the applicant to undergo a fusion.

Dr Leon Le Leu – occupational physician

Dr Le Leu was qualified by the applicant and reported on 29 March 2023. He has listed the evidence that was provided to him, in chronological order.
Dr Le Leu recorded that the applicant still worked full time as a gardener for the respondent, but as a team leader could ask colleagues to do the heavy lifting, and he had to “fill the gaps”. He usually started to feel worse at around 2 pm. He lay flat for a while to rest his back muscles.
The applicant said he had not had back symptoms before 2005. However, Dr Le Leu noted the contents of the clinical records to which I have referred.
The applicant was “pretty sure” the injury was in 2005. Dr Le Leu concluded, from the information available, that the accident occurred in 2005, and June “seems a reasonable possibility”.
Dr Le Leu recorded a history that the applicant went to walk over a square steel manhole cover, which “trap doored in.” The lid came on top of him, and his right buttock hit the lip of the concrete surround of the pit.
The applicant was pulled from the pit. He was still bent over, with the steel lid on top of him. He initially had sciatica in the right leg and pins and needles in the left leg. He thought he had no problems with the left leg at that point. He had weakness in the right leg and for a while could not walk.
Dr Le Leu recorded that the applicant was treated with physiotherapy and pain medication. His doctor told him he needed “a bout” of physiotherapy. He felt “defeated” but struggled across the road to the physiotherapist. Until he spoke to Mr Bolinghaus, he thought there was no future for him.
Mr Bolinghaus got the applicant through “the tough days” and gave him a lot of encouragement. He had physiotherapy for 12 months and felt Mr Bolinghaus also did a lot for him mentally.
The applicant was eventually doing weight training and core strength exercises, which “improved things considerably”. It took him “a good four years” to be functional to some sort of degree. During those four years, he stayed at work on reduced duties.
Dr Le Leu noted the history of the applicant’s treatment, which I will not repeat.
The applicant said his pain started to be different in the last 12 months. There was no new injury, but the left leg changed, and it had been normal before. He then said, “relatively normal”. Before 12 months ago, he could get pain going into the left leg.
Dr Le Leu reported that it appeared the change in symptoms may have occurred in early 2020, referring to Dr Yaramati’s records, so it was more than 12 months ago.
The applicant was also getting muscle spasms like electric shocks in the centre of the lower back. They were one of the hardest things to deal with. They would cause him to flop to the ground “like a broken rabbit.”
The applicant had in recent days had muscle spasms in the left groin, going down the back of the thigh. He had also struggled with bowel and bladder symptoms.
The applicant believed his local doctor in Urana would no longer support him, because the surgery was managed by the council. He moved to Dr Chen in Albury.
The applicant’s current symptoms included some back pain, but he was “dosed up on” pills to get there that day. He had not had back spasms that day, which he attributed to the pills.
The applicant tried to minimise his use of analgesics by staying active and using exercises given to him early by the physiotherapist. He found the pelvic floor exercises particularly difficult, and they made him cry from pain for days.
The applicant felt weakness in both legs. It was like he had tight hamstrings, more apparent on the left. Coughing still increased the pain, but early on it would “drop” him.
The applicant was working full time, delegating the heavier work where possible.
The applicant’s treatment consisted of physiotherapy, until WorkCover “shut (him) down” just after Christmas. He had not seen the physiotherapist since the surgical arrangements “fell in a heap”. He also took Panadol Osteo, Endone, Lyrica, and Endep.
The applicant’s pain management was handled by Dr Chen. Dr Todhunter had wanted to perform what Dr Le Leu assumed to be a discogram, which the applicant refused.
Dr Le Leu recorded limitations on driving; sitting; slopes/hills/ramps; squatting/kneeling; standing; sleeping; gardening; and cleaning.
Dr Le Leu opined that the applicant had discogenic low back pain with variable bilateral radiculopathy, historically more prominent on the right. This was likely to be on a background of significant pre-existing degeneration with occasional low back pain and no evidence of radiculopathy, except for the reference by the GP on 7 April 2003.
Dr Le Leu said there was a significant degree of existing degeneration because less than 10 months after the injury, the applicant was noted to have advanced disc degeneration at L4/5, among other observations.

Dr Le Leu opined that there was a direct relationship between the applicant’s original injury and his current condition. He had had constant symptoms ever since the injury, although varying greatly in intensity.
Since the injury, the applicant had had several exacerbations, including on 1 September 2018; 20 January 2020; 6 September 2021; and 21 October 2021.
Dr Le Leu opined that the applicant’s employment was a substantial contributing factor to his “condition”. That was because Mr Carpenter had had back and leg pain, to a variable degree, since the accident; the leg pain had changed between the right and left and had at times been bilateral; the pain had been of the same character the whole way through; and there had been nothing to suggest a new injury or merely the progression of a pre-existing non-work-related condition.
Dr Le Leu opined that it was most likely that the applicant had degeneration at L4/5 before the accident. However, this was almost but not entirely asymptomatic before the injury. After the accident, the applicant’s pain switched from largely low-level intermittent pain to continual back pain and radiculopathy, suggesting a major aggravation of the disease process.
If the applicant was very careful to observe the restrictions and delegate anything outside them to his colleagues, Dr Le Leu opined that he should be able to continue work with the respondent. It knew his condition and was allowing him to work within those restrictions.
The applicant’s restrictions should be no lifting, carrying, pushing or pulling greater than 10kg; no repetitive or sustained bending or twisting; and no work on ladders or at heights.
Dr Le Leu opined that the recommended surgery, of which he had no direct information, but understood to be nerve root decompression, was reasonably necessary. Ideally, it would reduce pressure on the effective [sic, assumed to mean affected] nerve roots and thereby decrease the applicant’s back pain and leg radiculopathy, including weakness.
As Dr Le Leu believed that the applicant’s back condition had reached its current stage due to the accident in June [sic] 2005, he considered that the proposed surgery related to the accident.

SUBMISSIONS

Counsel’s submissions have been recorded, and those relating to the application of s 59A of the 1987 Act have been provided in writing, so I will summarise them briefly.

Applicant

The applicant submitted that the evidence showed that the effects of his accepted injury had not resolved. He had not been able to return to his pre-injury work for a number of years. Mr McMahon had recommended fusion surgery years before this claim was made.
The applicant submitted that he had sustained a frank injury in July 2005, referring to the decision in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd.[1] There was no dispute that he had underlying degenerative issues, for which he had had treatment. The 2005 injury had worsened the underlying effects.
[1] [2014] NSWCA 264.
The applicant submitted that the doctors, including his treating specialists, were aware of the underlying issues, and I was not just reliant on what he said. He referred to his evidence about trying to obtain treatment and submitted that at no time was he completely asymptomatic.
The applicant submitted there was abundant treating evidence in which the effects of the injury were addressed. Surgery was considered as early as October 2006.
The applicant referred to the evidence of Mr Falkenberg, Dr Todhunter, and Mr McMahon. There was a strong recommendation for surgery in 2009. Mr Rogers opined that the applicant required the surgery that is the subject of the claim.
The applicant submitted that the totality of the treating evidence from 2005 to 2022 clearly demonstrated that the effects of the injury had not resolved, and there was no expectation that they would resolve. There was no cogent reason to find otherwise than that the effects of the injury continued.
The applicant submitted that the respondent needed to demonstrate that the effects of the accepted injury had resolved, or the need for surgery was related to something else, referring to Purkiss v Crittenden[2] and Watts v Rake.[3]
[2] [1965] HCA 34; (1965) 114 CLR 164.
[3] (1960) 180 CLR 158.
The applicant submitted that I would not accept the evidence of Dr Casikar, as it was inconsistent with the other evidence and there was an absence of reasoning to support the opinion that his symptoms were not related to the injury. Dr Casikar’s second report did not take the matter further.
The applicant submitted that the doctors other than Dr Casikar were of the clear opinion that the necessity for the surgery was related to the injury in 2005. It made a material contribution to the necessity for surgery – Murphy v Allity Management Services Pty Ltd.[4]
[4] [2015] NSWWCCPD 49.
In reply to the respondent, the applicant submitted that Mr McMahon and Dr Todhunter clearly provided an opinion that his condition was related to the injury in 2005. The respondent had accepted that he had sustained an injury, the effects of which were being addressed that day.
The applicant submitted that his current symptoms and the need for surgery were entirely consistent with the progression of degenerative changes.
The applicant submitted that Dr Le Leu had unambiguously provided evidence of the causal connection. It did not assist the respondent that there were remissions and exacerbations.
The applicant submitted that I would have regard to the opinions of Dr Todhunter in 2007 and of Dr Le Leu. The latter’s evidence supported that the condition had not resolved.
As regards the application of s 59A of the 1987 Act, the applicant submitted that the Commission had jurisdiction to make the finding sought, that is, the claimed surgery is reasonably necessary as a result of the accepted injury.
The applicant sought a declaration pursuant to s 60(5) of the 1987 Act with respect to the surgery.
The applicant submitted there was no requirement in the legislation that “absent an enforceable remedy, there is no jurisdiction to further consider the present dispute”. He submitted that this proposition, and those generally made by the respondent, were contrary to ss105, 288, 289 and 289A of the 1998 Act.
The applicant submitted that the respondent’s submissions were also contrary to Patrick Stevedores Holdings Pty Ltd v Fogarty[5] and Guettaf v Spotless Services Australia Pty Limited.[6] He submitted that none of the restrictions on jurisdiction imposed in ss 288 to 289A of the 1998 Act is applicable.
[5] [2014] NSWWCCPD 76 at [55] (Fogarty).
[6] [2020] NSWWCCPD 13.
The applicant submitted that, once vested with jurisdiction, the jurisdiction cannot be removed because “A power vested in a court should not be construed as subject to limitations not clearly to be seen”.[7]
[7] Fogarty at [63], referring to Speirs v Industrial Relations Commission of New South Wales [2011] NSWCA 206.
The applicant submitted that the respondent, through its dispute notices, triggered the dispute. Thus, the Commission was properly seized of jurisdiction, and once it had jurisdiction, the jurisdiction could not be removed.
The applicant submitted that the respondent could not rely on s 288(2) of the 1998 Act. This was a dispute that could be referred for determination because the qualifiers in s 289 were not relevant. This was specifically a matter that could be referred because the respondent had disputed liability (s 289(2)(a) of the 1998 Act.)
The applicant submitted that the matter satisfied s 289(2A) of the 1998 Act. There were no limitations in the legislation that prevented the Commission from determining the matter.
The applicant submitted that the terms of s 60(5) of the 1987 Act also demonstrate that the Commission retains jurisdiction to determine the dispute, and this is not predicated upon ordering payment of compensation.
The applicant submitted that Flying Solo Properties Pty Ltd t/as Artee Signs v Collet[8] does not suggest the contrary. In that matter, notwithstanding the application of s 59A of the 1987 Act, the matter proceeded on the basis that the then Workers Compensation Commission retained jurisdiction to determine the dispute. The finding of the arbitrator that the disputed treatment was reasonably necessary was not challenged on appeal.
[8] [2015] NSWWCCPD 14 (Collet).
The applicant submitted that I ought to determine the matter and make a finding as to whether the claimed, and disputed, treatment, is reasonably necessary as a result of the accepted injury, again referring to Collet.

Respondent

The respondent submitted that the treating doctors did not express any expert opinion on causation. Everyone agreed that the applicant had a degenerative spine. The question was whether, and to what extent, the injury had an effect on that pathology, and whether it made a material contribution to the need for surgery.
The respondent submitted that to work out the extent to which the 2005 injury led to 2024, it was incumbent on the applicant to advance some opinion on what actually happened. Dr Casikar’s opinion was that it was entirely consistent with the progression of the degenerative condition. There was nothing impermissible or inappropriate in what he said.
The respondent submitted that the absence of reference to back pain in the clinical records did not mean there was none on particular occasions. It was consistent with the case put by Dr Casikar that there were periods of remission. The records only showed continuity of symptoms, with almost complete abatement from time to time.
The respondent submitted that the applicant’s case was not made out. Dr Casikar’s opinion should prevail.
As regards the application of s 59A of the 1987 Act, the respondent submitted that the applicant originally sought relief pursuant to s 60(5) of the 1987 Act for payment of proposed lumbar fusion surgery. Because that procedure would necessarily involve the use of an artificial aid within the meaning of s 59A(6) of the 1987 Act, the section could not operate to apply to the compensation period prescribed by s 59A(1). (Emphasis in original).
However, as the Application had been amended to limit the proposed surgery to a decompression, the respondent submitted that it could not fall within the s 59A(6) exclusion.
The respondent submitted that in these circumstances, the Application was futile, as it could not result in an enforceable determination or order.
The respondent referred to the decision of Deputy President Roche in Collet.
Roche DP held, at [74]:
“…As the Commission has determined that the surgery is reasonably necessary treatment as a result of his work injury, when Mr Collet ceases work for the surgery, he will ‘become entitled to weekly payments of compensation.’”
The respondent submitted that, in this Application, the Commission had not so decided. Absent an enforceable remedy, there was no jurisdiction to further consider the dispute.

SUMMARY

Section 59A of the 1987 Act provides:

“59A Limit on payment of compensation

(1) Compensation is not payable to an injured worker under this Division in respect of any treatment, service or assistance given or provided after the expiry of the compensation period in respect of the injured worker.
(2) The compensation period in respect of an injured worker is--
(a) if the injury has resulted in a degree of permanent impairment assessed as provided by section 65 to be 10% or less, or the degree of permanent impairment has not been assessed as provided by that section, the period of 2 years commencing on--
(i) the day on which the claim for compensation in respect of the injury was first made (if weekly payments of compensation are not or have not been paid or payable to the worker), or
(ii) the day on which weekly payments of compensation cease to be payable to the worker (if weekly payments of compensation are or have been paid or payable to the worker), or

(b) if the injury has resulted in a degree of permanent impairment assessed as provided by section 65 to be more than 10% but not more than 20%, the period of 5 years commencing on--
(i) the day on which the claim for compensation in respect of the injury was first made (if weekly payments of compensation are not or have not been paid or payable to the worker), or
(ii) the day on which weekly payments of compensation cease to be payable to the worker (if weekly payments of compensation are or have been paid or payable to the worker).

(3)     If weekly payments of compensation become payable to a worker after compensation under this Division ceases to be payable to the worker, compensation under this Division is once again payable to the worker but only in respect of any treatment, service or assistance given or provided during a period in respect of which weekly payments are payable to the worker.
(4)     For the avoidance of doubt, weekly payments of compensation are payable to a worker for the purposes of this section only while the worker satisfies the requirement of incapacity for work and all other requirements of Division 2 that the worker must satisfy in order to be entitled to weekly payments of compensation.
(5)     This section does not apply to a worker with high needs (as defined in Division 2).
(6)     This section does not apply to compensation in respect of any of the following kinds of medical or related treatment--
(a) the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles (including hearing aids and hearing aid batteries),
(b) the modification of a worker's home or vehicle,
(c) secondary surgery.

(7) Surgery is
‘secondary surgery’ if--
(a) the surgery is directly consequential on earlier surgery and affects a part of the body affected by the earlier surgery, and
(b) the surgery is approved by the insurer within 2 years after the earlier surgery was approved (or is approved later than that pursuant to the determination of a dispute that arose within that 2 years).

(8) This section does not affect the requirements of section 60 (including, for example, the requirement for the prior approval of the insurer for secondary surgery).”

Section 60 of the 1987 Act provides:

“60 Compensation for cost of medical or hospital treatment and rehabilitation etc

(1) If, as a result of an injury received by a worker, it is reasonably necessary that--
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,

the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
Note: Compensation for domestic assistance is provided for by section 60AA.
(2) If it is necessary for a worker to travel in order to receive any such treatment or service (except any treatment or service excluded from this subsection by the regulations), the related travel expenses the employer is liable to pay are--
(a) the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining the treatment or being provided with the service, and
(b) if the worker is not reasonably able to travel unescorted--the amount of the fares, travelling expenses and maintenance necessarily and reasonably incurred by an escort provided to enable the worker to be given the treatment or provided with the service.

(2A) The worker's employer is not liable under this section to pay the cost of any treatment or service (or related travel expenses) if--
(a) the treatment or service is given or provided without the prior approval of the insurer (not including treatment provided within 48 hours of the injury happening and not including treatment or service that is exempt under the Workers Compensation Guidelines from the requirement for prior insurer approval), or
(b) the treatment or service is given or provided by a person who is not appropriately qualified to give or provide the treatment or service, or
(c) the treatment or service is not given or provided in accordance with any conditions imposed by the Workers Compensation Guidelines on the giving or providing of the treatment or service, or
(d) the treatment is given or provided by a health practitioner whose registration as a health practitioner under any relevant law is limited or subject to any condition imposed as a result of a disciplinary process, or who is suspended or disqualified from practice.

(2B) The worker's employer is not liable under this section to pay travel expenses related to any treatment or service if the treatment or service is given or provided at a location that necessitates more travel than is reasonably necessary to obtain the treatment or service.
(2C) The Workers Compensation Guidelines may make provision for or with respect to the following--
(a) establishing rules to be applied in determining whether it is reasonably necessary for a treatment or service to be given or provided,
(b) limiting the kinds of treatment and service (and related travel expenses) that an employer is liable to pay the cost of under this section,
(c) limiting the amount for which an employer is liable to pay under this section for any particular treatment or service,
(d) establishing standard treatment plans for the treatment of particular injuries or classes of injury,
(e) specifying the qualifications or experience that a person requires to be
‘appropriately qualified’ for the purposes of this section to give or provide a treatment or service to an injured worker (including by providing that a person is not appropriately qualified unless approved or accredited by the Authority).

(3)     Payments under this section are to be made as the costs are incurred, but only if properly verified.
(4)     The fact that a worker is a contributor to a medical, hospital or other benefit fund, and is therefore entitled to any treatment or service either at some special rate or free or entitled to a refund, does not affect the liability of an employer under this section.
(5)    The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute may be referred by the President for assessment by a medical assessor under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”

The respondent submitted that the Commission did not have jurisdiction to consider the dispute, as a determination could not result in any enforceable determination or order.
It is therefore appropriate that I first consider the issue of jurisdiction.
The respondent made no submissions as to the application of ss105, 288, 289 and 289A of the 1998 Act, which were the subject of submissions by the applicant.
I accept the applicant’s submissions as to the effect of ss 105, 288, 289, and 289A of the 1998 Act.
Section 105(1) of the 1998 Act provides that, subject to that Act, the Commission has exclusive jurisdiction to “examine, hear and determine all matters arising under this Act and the 1987 Act.”
Sections 288, 289, and 289A of the 1998 Act provide for referral of disputes to the Commission and the restrictions on such referral.
Section 289(2) of the 1998 Act provides that a dispute about a claim for medical expenses compensation cannot be referred for determination by the Commission unless the person on whom the claim is made either (a) disputes liability for the claim (wholly or in part), or (b) fails to determine the claim as and when required by the Act.

The respondent disputed liability for the applicant’s claim for medical expenses when it issued a dispute notice on 10 January 2023. I have referred to the contents of that notice and its review notice above.
The applicant relies on the decision of Roche DP in Fogarty.
The respondent in Fogarty indicated on the date on which the dispute was fixed for hearing that it agreed to pay “the entirety of the claim.” It therefore submitted that the arbitrator “no longer ha[d] a dispute to determine”.
The arbitrator rejected the respondent’s submission and proceeded to determine the dispute. The respondent appealed against the arbitrator’s determination.
Roche DP referred to the provisions of ss 105, 288, 289, and 289A of the 1998 Act. He said at [60]:
“Once the Commission has jurisdiction, by virtue of one or other of the avenues identified in s 289, it has power to determine that dispute by issuing a Certificate of Determination (s 294 of the 1998 Act). In the alternative, if the parties to proceedings in respect of a dispute agree as to the terms of an order to be made determining that dispute, and that order is an order that the Commission has power to make, the Commission may determine the dispute by making that order by consent (Pt 15 r 15.9 of the Workers Compensation Commission Rules 2011 (the Rules)).”
What I am being asked to do in this matter is make a determination as to whether the medical treatment that the applicant seeks to undergo is reasonably necessary as a result of the accepted injury to his lumbar spine on 20 July 2005.
Section 60(5) of the 1987 Act provides that the Commission’s jurisdiction with respect to a dispute about compensation payable pursuant to s 60 extends to a dispute concerning any proposed treatment or service. This is such a dispute, and the Commission has jurisdiction.
In Collet, Roche DP confirmed the arbitrator’s determination that the proposed surgery sought by the applicant was reasonably necessary and as a result of the injury. He revoked the arbitrator’s order that the respondent pay the costs of the surgery, due to the application of s 59A of the 1987 Act.
The respondent submitted that in Collet, Roche DP held, at [74} that:
“…As the Commission has determined that the surgery is reasonably necessary treatment as a result of his work injury, when Mr Collet ceases work for the surgery, he will ‘become entitled to weekly payments of compensation’”.
The respondent submitted that the Commission has not so decided in this matter; and absent an enforceable remedy, it has no jurisdiction to further consider the dispute.
However, Roche DP did not find in Collet that the arbitrator lacked jurisdiction to determine the dispute. He confirmed the arbitrator’s determination of the issue in dispute. That was notwithstanding that, due to the application of s 59A of the 1987 Act, Roche DP found that the arbitrator erred in ordering the respondent to pay the costs of the treatment.
An acceptance of the respondent’s submission would leave the applicant without a remedy. The issue as to whether the proposed surgery is reasonably necessary as a result of the dispute is precisely what I am being called on to determine; and I propose to do so.
I have referred in detail above to the applicant’s evidence, and the medical evidence.
I accept the applicant’s evidence that the condition of his back fluctuated from time to time. This is supported by the entries in the GPs’ records. It is also recorded that the Council was supportive, and the applicant was able to rely to some extent on the assistance of colleagues to continue to work. At times when the applicant’s condition improved, he did not contemplate surgery.
There was discussion of the possibility of surgery as early as 2006, when Mr Falkenberg opined that the applicant may ultimately come to spinal fusion (albeit that that is not the surgery that is currently contemplated) but it was a “salvage” for when the applicant was unemployable.
That accords with Dr Barkman’s observation in 2006 that the applicant had nothing to lose by “procrastinating” surgery, because if he had a fusion, he would have to give labouring away.
At times when the applicant’s condition improved, he did not contemplate surgery. For example, Dr Love recorded in 2010 that the applicant did not have surgery “in the end, as settled spontaneously.”
While Mr McMahon did not recommend surgery in 2006, he said it could be warranted if the applicant’s symptoms worsened. His subsequent reports confirm that the applicant’s condition had become worse, and by June 2009, he was recommending surgery.
Dr Ow-Yang recorded in 2022 that “for some reason” the applicant did not have the surgery. He opined that the applicant’s L4/5 disc space had undergone a more rapid degenerative process due to the injury. (Emphasis added). He has provided what is, in my view, a very helpful explanation of the history of a lumbar disc protrusion – see paragraphs 229 to 231 above. He also opined that the probability of successful surgery would have been higher had it been undertaken at a time closer to the date of the injury.
Dr Le Leu has comprehensively reviewed the applicant’s clinical records. He opined that there was a direct relationship between the applicant’s original injury and his current condition. The applicant had had constant symptoms since the injury, although varying greatly in intensity. That, in my view, is consistent with the evidence, and I accept Dr Le Leu’s opinion.
Dr Casikar has opined that the applicant appeared to have had a workplace aggravation in 2005, the effects of which had ceased. It had been superseded by significant progressive degeneration of the lumbar spine.
I do not accept Dr Casikar’s opinion, which is at odds with the evidence of the applicant’s treating practitioners and Dr Le Leu.
While he suggested that the applicant “should try a couple of cortisone injections”, Dr Casikar accepted that the proposed surgery, that is L4/5 decompression and rhizolysis and microdiscectomy, was appropriate treatment and he agreed with Dr Ow-Yang’s proposed strategy.
The respondent conceded that the proposed surgery is reasonably necessary treatment but disputed that it was reasonably necessary as a result of the injury on 20 July 2005.
For the reasons given above, I do not accept the respondent’s position.
I find that the surgery as claimed by the applicant, that is left-sided decompression surgery at L4/5, is reasonably necessary as a result of the injury on 20 July 2005.
I am unable to order that the respondent pay the costs of the surgery, due to the operation of s 59A of the 1987 Act; and I therefore decline to make any order.

[2024] NSWPIC 199

22 April 2024