Catlin v Pavier Amusements Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Catlin v Pavier Amusements Pty Ltd [2021] NSWPIC 211
APPLICANT:	David Catlin
RESPONDENT:	Pavier Amusements Pty Ltd incorrectly referred to as Pavier Family Amusements Pty Limited
MEMBER:	Michael Wright
DATE OF DECISION:	25 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for the cost of proposed L4/5 disc replacement and L5/S1 anterior interbody fusion; whether aggravation of pre-existing lumbar spondylosis ceased; whether proposed surgery is reasonably necessary as a result of injury on 20 February 2017; consideration of Kooragang Cement Pty Limited v Bates, Diab v NRMA Ltd and Rose v Health Commission (NSW); Held- found aggravation is continuing and surgery is reasonably necessary as a result of injury on 20 February 2017; respondent ordered to pay costs of proposed surgery.
DETERMINATIONS MADE:	1. The surgery proposed by Dr Tollesson, being disc replacement at L4/5 and an anterior interbody fusion at L5/S1 (the surgery), is reasonably necessary as a result of the injury on 20 February 2017.
ORDERS MADE	2. The respondent to pay the costs of and incidental to the surgery in accordance with section 60(5) of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute (ARD), Mr David Catlin (the applicant) claims pursuant to section 60 of the Workers Compensation Act 1987 (the Act), for the cost of surgery proposed by Dr Tollesson in the form of a disc replacement at L4/5 and an anterior lumber interbody fusion at L5/S1 (the proposed surgery), as a result of injury on 22 February 2017 in the course of his employment with Pavier Amusements Pty Ltd (the respondent).
In a section 78 notice dated 21 January 2020, the workers compensation insurer (the GIO) notified the applicant that in their view the work injury on 20 February 2017 has resolved. The GIO notified the applicant that weekly compensation payments would cease. The GIO also advised the applicant that in their opinion the surgery proposed by Dr Tollesson is not reasonably necessary as a result of the work injury of 20 February 2017. The GIO relied upon the opinions of Dr Ivers, Dr Coroneos and Dr Thomas.

PROCEDURE BEFORE THE COMMISSION

At the conciliation/arbitration hearing of this matter on 19 May 2021 the applicant was represented by Mr Morgan of counsel, instructed by Ms Rogers, solicitor, and the respondent by Mr Loukas of counsel, instructed by Mr Bennett.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

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

(a)    Application to Resolve a Dispute (ARD) and attached documents,
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents dated 6 May 2021 and attached documents.

Oral evidence

There was no application to give oral evidence or to cross examine the applicant.

The applicant’s statements

The applicant provided a signed statement in the ARD dated 10 November 2020 as well as an unsigned and undated statement. In an Application to Admit Late Documents, the applicant provided two signed statements dated 28 April 2021.
The applicant’s signed statement dated 10 November 2020 appeared to adopt the unsigned and undated statement that was also in the ARD.
In his unsigned and undated statement, the applicant stated that in late 2016 he was required to assist some work colleagues to empty the home of his boss’s mother. He stated that while he was moving a fridge he lost his footing and fell about 1 m and landed in a twisted position and felt immediate pain in his lower back. The applicant stated that he was in immense pain and his boss gave him some pain killers and he went to see his doctor shortly afterwards and he was sent for a CT scan.
The applicant stated that his back was causing him slight discomfort whilst he was at work but it did not get in the way of him completing his work and domestic tasks. He stated that he did not feel numbness and pins and needles in his right leg from that injury, which he does now.
The applicant stated that on 20 February 2017, he had been required by his boss to go to a property to remove concrete slabs. The concrete slabs were about 1.5 m wide and 2 m long. The applicant stated that the only way to remove the slabs was to break them up into smaller pieces using a sledgehammer. He did this in turns with a work colleague. It required the two of them to lift each piece of broken concrete into the truck. The applicant said that he and his work colleague, Dan, crouched down to lift the last piece of concrete and as they did so the applicant experienced sharp shooting pains into his lower back and he felt a popping sensation. The applicant said that he checked with Dan that he had the slab before he let it go. He sat down on the ground for a while because he was experiencing severe pain so that he had to lay down on the grass for a while.
The applicant stated that he had to drive to his boss’s house, which was about 10 houses away from the location of the accident. As there was no one else to drive the truck, the applicant was obliged to drive it with great difficulty. The applicant stated that his boss only offered to drive him to the train station at Woy Woy. The applicant caught the train to Gosford. The applicant said that when he arrived at Gosford Station he had to walk 500 m to the hospital, which took about 40 minutes due to the severe pain in his back and he had to walk very slowly.
The applicant stated that he attended the emergency department of the Gosford Hospital where he was checked by the physiotherapist and he was also provided with OxyContin for pain relief and discharged later that day with the medical certificate certifying him unfit for work until 26 February 2017.
The applicant said that on 22 February 2017 he first consulted his GP, Dr Jaafar of the Reliance Medical Centre. The applicant said that although the accident took place on 20 February 2017 as described above, the date that was given to the injury was for the initial consultation on 22 February 2017.
The applicant stated that he did not return to work after the accident of 20 February 2017. He was given an initial medical certificate from his GP which stated that he was unfit for work until 15 March 2017. Thereafter he was provided a medical certificate which certified him as having some capacity for work.
The applicant recounted the various scans that he underwent for his lower back. He attended three sessions of physiotherapy in about April or May 2017 but did not continue as they were causing pain.
The applicant stated that he first consulted Dr Nicholas Little, neurosurgeon and spinal surgeon, for treatment on 25 May 2017. The applicant stated that Dr Little advised that he should have conservative treatment of physiotherapy and an epidural injection into the lumbar spine before considering any surgery. The applicant stated that he had the epidural injection into the lumbar spine and L4/5 on or about 24 July 2017.
The applicant said that he started some casual work on 14 August 2017 at a phone repair store belonging to his brother-in-law but had not worked from the accident on 20 February 2017 until that time. Dr Bodel noted the history that he lasted a three month trial but could not continue due to his unreliability because of the severity of his pain.
In his signed a statement dated 10 November 2020, the applicant said that at the time of the injury on 20 February 2017 he felt immediate pain in his lower back, which radiated to his right leg.
The applicant said that following the epidural injection of July 2017 he felt some relief for a couple of months but by the end of 2017 his pain and symptoms had returned. He said that he experienced constant weakness, pain and stiffness in his lower back which radiated to his right leg.
The applicant said that he undertook further physiotherapy throughout the rest of 2017 and early 2018 as well as analgesic pain medication. In about June 2018, due to the persistent pain his GP referred him to Dr Frank Thomas, pain management specialist.
The applicant stated that he first consulted Dr Thomas in or about late June 2018. Dr Thomas recommended a diagnostic injection as well as further physiotherapy. He said that he underwent the physiotherapy but he did not find this to be of any significant benefit.
The applicant stated that in or around August 2018 he underwent medial branch block injections as recommended by Dr Thomas. The applicant said that he did not find the injection to be of any significant benefit. He was told by Dr Thomas that the lower back pain was likely to be discogenic in nature and Dr Thomas recommended a multidisciplinary pain management program.
The applicant stated that in or around October 2019 he underwent the pain management program at St Vincent’s Hospital in Brisbane. He said that although the program was helpful, it did not provide him with any significant and ongoing pain relief.
The applicant stated that he had the neurostimulator inserted into his lower back by Dr Prasad on or about 7 May 2019. The applicant said that he had a poor result from this procedure. He said that although it slightly reduced the right leg pain, he continued to suffer from constant pain and stiffness in his lower back.
The applicant stated that in September 2019 he first consulted Dr Tollesson, after first having undergone a further MRI as arranged by Dr Tollesson. The applicant stated that he was advised by Dr Tollesson that surgery would be likely, however before proceeding with surgery he recommended a cortisone injection. The applicant stated that he underwent the cortisone injection in about September 2019, but did not provide any significant pain relief.
The applicant stated that as a result Dr Tollesson recommended that the applicant undergo surgery in the form of an L4/5 disc replacement and L5/S1 anterior interbody fusion.
The applicant’s supplementary statement of 28 April 2021 referred again to the injury “in late 2016”. He said that prior to the injury of 20 February 2017 he recalled a minor incident where he sustained pain in his lower back. He said that the pain felt like a muscular strain. He stated that he took about two days off work before returning to his duties and he did not seek any treatment from his GP or other specialists. He stated that he did not believe that the 2016 injury was significant compared to the one on 22 February 2017 as the pain was different. He stated that in 2016 the pain felt like it was a muscular strain or soreness which lasted only a couple of days, while following the incident on 22 February 2017 he felt pain which was like nothing he had experienced before and he heard a popping sound and felt excruciating pain in his lower back which radiated into his right leg.

Dr Little

Dr Little, neurosurgeon and spinal surgeon, provided a report dated 25 May 2017 addressed to the treating GP.
Dr Little noted a history of acute back pain in May 2015 after helping a friend move. Dr Little recorded that “this largely settled back to baseline up until three or four months ago where he was breaking up and lifting concrete when he had acute onset of recurrence of that back pain and has had subsequent pain in the right buttock and posterior thigh with occasional posterior tingling”.
He noted a CT scan from May 2016 which showed a right sided paracentral disc protrusion at L4/5 of moderate size. Dr Little noted that unfortunately he was not able to view the CT scan of March 2017 but noted the report did not compare the two scans but mentioned that there was a disc protrusion at the same level.
Dr Little thought that the problem was a disc protrusion and that the applicant’s options for therapy will range from “ongoing time, physical therapy through to injection therapy through to surgery”. He recommended an MRI and consideration of an epidural injection as a therapeutic measure.

Dr Tollesson

Dr Tollesson, brain and spinal neurosurgeon, provided reports dated 25 September 2019 and 30 April 2020.
In his report to the workers compensation insurer dated 25 September 2019, Dr Tollesson noted that he saw the applicant in 2017 and he was diagnosed at that time with degenerative disc disease at L4/5 and L5/S1. He recorded that the applicant’s symptoms started after he lifted a heavy object at work and he had another injury on 22 July 2017. He noted that the applicant continues to be troubled by significant low back pain and sciatica.
Dr Tollesson noted that a repeat lumbosacral spine MRI on 19 August 2019 showed a minimal disc protrusion at L5/S1 and L4/5. He noted that although the lateral recesses appear slightly effaced there is no significant neural compression to see and also noted mild multilevel spondylar arthrosis.
Dr Tollesson stated

“I originally was considering a spinal fusion via a posterior approach from the level L4 to sacrum in 2017. This request was denied from you at GIO at the time. Mr Catlin has since tried a nerve stimulator that only gave him some effect and reduced the pain to his right leg but did not do anything for his chronic back pain situation. Mr Catlin is convinced that lumbar spinal surgery would be of benefit for him and I believe this is a very reasonable thought. He certainly has degenerative disc disease at L4/L5 and L5/S1 after a most likely permanent aggravation of pre-existing degenerative disc disease.”
Dr Tollesson supported surgery due to the applicant’s inability to work and lack of improvement and requested approval for the surgery.
In his report dated 3 April 2020 to the applicant’s solicitors, Dr Tollesson noted a history that the applicant’s symptoms started after he lifted a heavy object at work in 2016 and he had another injury on 22 July 2017.
Dr Tollesson noted that the applicant continues to be troubled by significant low back pain and sciatica. He noted that conservative treatment has failed and the applicant is classed as having a severe chronic disability.
Dr Tollesson was of the opinion that “there is clearly a relationship between a permanent aggravation of pre-existing degenerative disc disease and his work injury”. He was of the opinion that the applicant “undertook strenuous activities involving his lower back during his employment. The mechanism of this has caused injury to his lumbar discs”.
It was also the opinion of Dr Tollesson that the applicant “has degenerative disc disease at L4/L5 and L5/S1 after a most likely permanent aggravation of pre-existing degenerative disc disease”. He was of the opinion that the applicant’s work injury “has not resolved. This is an ongoing problem. He has shown a lack of improvement and minor relief from alternate therapies. Mr Catlin has a permanently injured lumbar spine”.
Dr Tollesson was of the opinion that the applicant’s employment is the main contributing factor to his condition.
Dr Tollesson stated that he believed that the applicant would benefit from a disc replacement at L4/5 and an anterior interbody fusion at L5/S1. He stated that he supported surgery for the applicant due to his inability to work and lack of improvement from conservative treatment.
Dr Tollesson disagreed with the opinion of Dr Ivers:

“due to the fact that Mr Catlin has a permanent aggravation of degenerative disc disease. Mr Catlin’s condition has not improved at all with conservative treatment. I do not understand Dr Ivers’s assessment that concludes that Mr Catlin’s condition has ceased. He has ongoing problems, therefore the condition has not ceased.”

Dr Thomas

In his report of 7 June 2018, Dr Thomas, specialist pain medicine physician and anaesthetist, recorded a history of persisting low back pain following a work injury on 22 February 2017 with imaging showing degeneration in L4/5 and L5/S1 discs with minor protrusions and facet joint arthropathy at those levels. He noted a history of work injury in July 2016 when the applicant jumped off the back of a truck. The back pain persisted for a few weeks but then resolved. There was no history of back pain prior to that incident.
Dr Thomas also noted a history of injury on 22 February 2017 while lifting some concrete with a work colleague and the applicant experienced sudden severe low back pain and he has not returned to work since that accident. The applicant was reported to have experienced ongoing lower back pain with radiation into the right lower limb. Dr Tollesson noted that the applicant had seen Dr Little, neurosurgeon, and Dr Tollesson, neurosurgeon and surgery had been recommended but he had not seen the various reports. He was of the opinion that it was not clear from the MRI which structure is responsible for the pain and that there was “no definite indication for surgery”.
In his report of 8 August 2018, Dr Thomas diagnosed persistent low back pain but he was not able to define a precise aetiology for the pain. Dr Thomas noted that he had read the report of Dr Coroneos and another report of Ms Mintor dated 12 June 2018. Dr Thomas agreed with Dr Coroneos that there was “absolutely no indication for spinal surgery”. Dr Thomas was of the opinion that the applicant’s low back pain could have originated in either or both of the work injuries reported. He recommended diagnostic injections and possibly subsequent radiofrequency neurotomies and possibly a multidisciplinary pain management program.

Dr Coroneos

Dr Coroneos, neurosurgeon, was qualified by the workers compensation insurer and provided a report dated 16 April 2018. Dr Coroneos took a history of the injuries at work and noted his findings on examination and reviewed imaging.
Dr Coroneos was of the opinion that:

“I cannot determine any significant neurosurgical or spinal injury having occurred with either the events described by Mr Catlin, based on the limited briefing provided, along with Mr Catlin’s history and results of clinical musculoskeletal and neurological examinations and the imaging that I viewed.

Please note that I have not been provided with an incident report, employer report, employee report, hospital or any contemporaneous medical records.
There have been no reports from Dr Nicholas Little.

There have been no contemporaneous general practitioner notes.”
Dr Coroneos did not recommend surgical intervention “as there is no evidence of any fracture, dislocation, subluxation, spondylolisthesis, neural compression on imaging, and no evidence of radiculopathy or objective neurological deficit.”
Dr Coroneos was of the opinion that the applicant’s presentation was non-organic. He noted that he could find no “neurosurgical indication for the proposed surgery, as the imaging shows mild degeneration at L4/5 and L5/S1 with no neural compression or spondylolisthesis, and all the changes are of degeneration”.
Dr Coroneos attached five publications and resources indicating the prevalence of the observed changes in the asymptomatic adult population.
Dr Coroneos was of the opinion that accordingly he did not recommend the proposed surgery and he was unable to relate the requirement for surgery to treatment of changes caused by the subject events.

Dr Ivers

Dr Ivers, neurosurgeon, was qualified by the workers compensation insurer and provided a report dated 19 November 2019.
Dr Ivers recorded the history of injury on 20 February 2017 and also the earlier history of injury to the back about nine months prior to the injury of February 2017.
Dr Ivers also recorded a history of treatment and noted the applicant’s current symptoms and restrictions. Dr Ivers did not record a history of any cessation of the applicant’s symptoms and restrictions following the injury of 20 February 2017. Dr Ivers also recorded his examination and noted the imaging investigations.

Dr Ivers diagnosed exacerbation of lumbar spondylosis and noted in his diagnosis the MRI examinations and the history of prior back pain.
Dr Ivers was of the opinion that the history of lumbar spondylosis is episodic exacerbation and remission of symptoms and the usual period for the effects of an exacerbation to cease is about three months. Dr Ivers was of the opinion that the effects of the exacerbation of 20 February 2017 have ceased.
Dr Ivers was also of the opinion that whilst the proposed surgery “may well be reasonable for the back condition of lumbar spondylosis, I do not consider that the procedure is required for the work-related exacerbation, which is a ‘temporary’ worsening of the condition.”

Findings and reasons

The respondent submitted that aggravation of the applicant’s pre-existing degenerative lumbar spine condition arising from injury on 20 February 2017 has ceased. This submission relies principally upon the opinion of Dr Ivers. The respondent also submitted that the opinions of Dr Coroneos and Dr Thomas were that there is no pathological reason for the proposed surgery.

The clinical notes of the Gosford Hospital on 20 February 2017 confirm the circumstances of the incident and that there was a sudden onset of significant lower back pain with some referral into the right leg and great difficulty in walking from the train station to the hospital.
The report of Dr Little dated 25 May 2017 is otherwise the closest contemporaneous report in time. He noted a history of injury to the back in 2015 after helping a friend move. In my view this is a reference to the 2016 work injury as there is no other suggestion of a 2015 injury and the 2016 injury took place whilst assisting the employer’s mother to move. Dr Little reported that this injury largely settled back to baseline prior to the injury in 2017.
In my view, given the applicant had returned to his normal duties with the respondent, and given the history recorded by Dr Little, the applicant’s lower back pain from the 2016 injury had resolved.
Since the injury of 20 February 2017, the applicant has sustained continuing symptoms and restrictions and he has also undergone significant conservative treatment. He said that he was unable to continue with physiotherapy as it was not beneficial and it was painful.
Dr Tollesson also treated the applicant in 2017 and thereafter. The respondent criticised the history of injury that he recorded. However, there is no dispute that the applicant sustained injury on 20 February 2017, as well as an earlier injury in 2016. Dr Tollesson recorded that the lifting of a heavy object at work took place in 2016, when that was the incident on 20 February 2017. He also recorded the injury dated 22 July 2017. However, the balance of evidence is clear that the lifting incident at work took place on 20 February 2017. In any event, what was important for Dr Tollesson was that it was the lifting of a heavy object at work which was the incident to which he attributed the aggravation, which he regarded as permanent and for which he recommended surgery. In my view, this is sufficient to accept the opinion of Dr Tollesson.
Dr Bodel in his report of 20 July 2020 did not record a history of the 2016 injury. In his supplementary report of 5 May 2021 Dr Bodel considered the history of the 2016 injury and concluded that his previous assessments remained unaltered. Dr Bodel was of the opinion that the injury of February 2017 is the main cause of the ongoing injury.
Dr Ivers, Independent Medical Assessor (IME) for the respondent, in his report of 9 November 2019 noted a radiologist report of worsening pain in the back extending from the 2016 injury. In my view this is at odds with the records of the Gosford Hospital and the report of Dr Little and I do not place any weight on such a radiological background observation. Dr Ivers was of the opinion that “it would be usual to allocate a period of about three months for the effect of an exacerbation to cease, leaving the individual with the effects of the underlying pre-existing condition, which is lumbar spondylosis.” He concluded that the injury of February 2017 was an exacerbation of pre-existing degenerative change.
In my view, there are two issues with this opinion of Dr Ivers. The first is that he has not explained why it is usual in general terms to allocate a period of about three months for the effect of an exacerbation to cease and how that view would apply in this case. The second is that he has not explained why in this case where the applicant has complained of continuing symptoms and restrictions there has been a cessation of the exacerbation. Neither Dr Coroneos nor Dr Mitchell were of the opinion that there had been a cessation of an aggravation. Dr Tollesson was critical of the opinion of Dr Ivers on this point.
I do not accept the opinion of Dr Ivers that the exacerbation of the lumbar spondylosis has ceased.
I prefer the opinions of Dr Tollesson and Dr Bodel that the effects of the injury of 20 February 2017 are continuing, that is the aggravation of the pre-existing condition is continuing. These opinions are supported by the record of the Gosford Hospital of a significant incident resulting in significant lower back pain and referred pain into the right leg, together with the applicant’s evidence that his symptoms have not resolved since that time.
As to whether the injury of 20 February 2017 has resulted in the need for the proposed surgery, the applicant need only establish, applying a common sense test of causation, following Kooragang Cement Pty Ltd v Bates[1], that the injury materially contributed to the need for surgery, as discussed in Murphy v Allity Management Services Pty Ltd[2] (Murphy). Having regard to the opinions of Dr Tollesson and Dr Bodel, in my view the applicant has established this to be the case. Additionally, Dr Little was of the opinion that surgery was one of the range of options for treatment of the applicant’s disc protrusion.
[1] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796
[2] [2015] NSWWCCPD 49
I do not accept the opinions of Dr Coroneos and Dr Thomas in this regard. The opinion of Dr Coroneos was qualified on the basis of the “limited briefing provided”, which did not include hospital or contemporaneous medical records or the reports of Dr Little or records of the GP. Dr Coroneos did not explain how the five studies that he relied upon applied in the specific case of the applicant. Dr Thomas had regard to the opinion of Dr Coroneos but appears not to have been provided with the reports of Dr Little or Dr Tollesson, who had treated the applicant in 2017 and recommended surgery at that time. Additionally, both Dr Coroneos and Dr Thomas provided their reports in 2018 and did not have the benefit of considering the further treatment that was provided to the applicant. Dr Coroneos thought that there was no significant neurosurgical or spinal injury as a result of injury at work, hence there was no need for surgery. Dr Thomas agreed. However Dr Tollesson and Dr Bodel identified aggravation of degenerative disc disease at L4/5 and L5/S1 as the relevant pathology. I do not prefer the opinions of Dr Coroneos and Dr Thomas.
Dr Ivers was of the opinion that surgery may be indicated for the underlying pre-existing condition, although in his view the effects of the exacerbation had ceased. As noted, I do not prefer the opinion of Dr Ivers in this regard.
The respondent also disputed that the proposed surgery is reasonably necessary, on the basis that no pathological reason for the surgery has been proposed, as opined by Dr Coroneos and Dr Thomas. The respondent also submitted that the applicant has not complied with all conservative treatment.
As previously discussed, I do not accept the opinions of Dr Ivers, Dr Coroneos and Dr Thomas in this regard. Dr Ivers thought that surgery was indicated for the pathology, but he was of the opinion that the pathology was not work-related. I have preferred the opinions of Dr Tollesson and Dr Bodel to those of Dr Coroneos and Dr Thomas who were both of the opinion that there was no significant neurosurgical or spinal injury. Both Dr Tollesson and Dr Bodel were of the opinion that the pathology was an aggravation of pre-existing degenerative disc disease at L4/5 and L5/S1.
As for non-compliance with conservative treatment, the respondent submitted that the applicant did not comply with physiotherapy recommendations and treatment. However, the applicant’s evidence was that he tried physiotherapy but did not find physiotherapy in 2017 to be of any significant benefit and he recalled that on one occasion it aggravated his lower back pain and in previous sessions of physiotherapy earlier in 2017 he would have two days of increased back pain following a session of physiotherapy. I accept the evidence of the applicant that he tried the physiotherapy but found it to be of no benefit.
Having regard to the opinions of Dr Tollesson and Dr Bodel, I find that the aggravation of the pre-existing condition as a result of the incident on 20 February 2017 has materially contributed to the need for the surgery as proposed by Dr Tollesson. The injury on 20 February 2017 resulted in aggravation to degenerative disc disease at L4/5 and L5/S1, as diagnosed by both Dr Tollesson and Dr Bodel. The surgery proposed by Dr Tollesson is a disc replacement at L4/5 and an anterior interbody fusion at L5/S1.
Other than the issues with respect to treatment of the pathology and conservative treatment, the respondent did not directly take issue with other matters that might be considered in the question of whether the proposed treatment is reasonably necessary, such as the matters set out in Diab v NRMA Ltd[3] (Diab) and Rose v Health Commission (NSW)[4]. The question of reasonableness will of course depend on the facts of each case and the nature of the dispute. In my view, having regard to the ambit of the dispute in this matter, the proposed surgery is reasonably necessary. However, I will consider the matters referred to in Diab briefly in turn below.
[3] [2014] NSWWCCPD 72
[4] (1986) 2 NSWCCR 32
I am satisfied that the proposed surgery is appropriate. It has been recommended by the treating neurosurgeon and supported by the qualified orthopaedic surgeon. I am also satisfied that the avenues of conservative treatment have been ineffective over a period of four years, as noted by Dr Tollesson and Dr Bodel. There was no issue as to the cost of the proposed surgery. I accept the opinion of Dr Tollesson that the proposed surgery is potentially effective in repairing the applicant’s lumbosacral spine and allowing him to return to his work. There was no suggestion that the proposed surgery was not in the usual medical armoury of treatments for this condition, that is that disc replacement and interbody spinal fusion surgery was accepted as a treatment for degenerative disc disease at L4/5 and L5/S1. Dr Ivers did not dispute the general appropriateness of the surgery, rather he did not think it was as a result of the work injury. Dr Tollesson and Dr Bodel both thought that it was appropriate. I prefer these views.
I find that the surgery proposed by Dr Tollesson, being disc replacement at L4/5 and an anterior interbody fusion at L5/S1, is reasonably necessary as a result of the injury on 20 February 2017.

[2021] NSWPIC 211

25 June 2021