Cleverly v Anglican Community Services

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Cleverly v Anglican Community Services [2025] NSWPIC 323
APPLICANT:	Racheal Cleverly
RESPONDENT:	Anglican Community Services
MEMBER:	Kathryn Camp
DATE OF DECISION:	7 July 2025
DATE OF AMENDMENT:	24 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 60; claim for proposed surgery for accepted lumbar spine injury; acceptance that surgery results from injury; dispute as to whether surgery is reasonably necessary; fair climate for acceptance of expert medical opinion; Commission’s expert knowledge and inferences; whether 50% chance of success is determinative; phrase “likely to be effective”; Hendrix v Accuro Homecare Pty Ltd, Rose v Health Commission (NSW) and Diab v NRMA Limited considered and applied; Held – likely effectiveness of treatment not determinative; poor prospects does not preclude treatment being reasonably necessary where purpose and potential effect is to alleviate injury consequences and is most effective modality; applicant discharged onus of proof; respondent to pay costs of and ancillary to proposed lumbar spine surgery pursuant to section 60.
DETERMINATIONS MADE:	The Commission determines: 1. The proposed lumbar spine surgery in the nature of “Bilateral L4/5 wiltse approach to L4/5 decompression + posterior interbody fusion + pedicle screw internal fixation + posterolateral fusion procedure”, recommended by Dr Ow-Yang, is reasonably necessary treatment as a result of injury to the applicant’s lumbar spine on 18 September 2019. The Commission orders: 2. The respondent is to pay the applicant’s reasonably necessary costs of and incidental to proposed lumbar spine surgery recommended by Dr Ow-Yang, pursuant to s 60(5) of the Workers Compensation Act 1987. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

INTRODUCTION

This matter concerns whether proposed lumbar spine surgery is reasonably necessary pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), in circumstances where it is not disputed that surgery results from an accepted workplace injury. For the reasons discussed below, the worker’s claim for compensation is successful.

BACKGROUND

On 18 September 2019, Racheal Cleverly, the applicant worker, sustained an accepted injury to her lumbar spine while working as an aged care worker for the respondent, Anglican Community Services.
The respondent’s insurer issued notices pursuant to ss 78 and 287A of the Workplace Injury Management and Workers Compensation Act 1998 declining the claim for medical expenses for the costs of proposed lumbar spine surgery.
On 6 March 2025, the applicant lodged an Application to Resolve a Dispute in respect of the claim for medical expenses.
On 28 March 2025, the respondent lodged a Reply.

ISSUE FOR DETERMINATION

The issue in dispute is:
(a) whether the proposed lumbar spine surgery and related expenses is reasonably necessary pursuant to s 60 of the 1987.
The respondent concedes injury to the lumbar spine and that the proposed surgery (and related expenses) is as a result of the accepted injury, but disputes the reasonable necessity of the surgery.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

On 14 April 2025, the parties attended a preliminary conference.
On 6 June 2025, the parties attended a conciliation conference and arbitration hearing. Mr Ross Stanton, of counsel, appeared for the applicant instructed by Gerard Malouf & Partners. Mr Justin Hart, of counsel, appeared for the respondent instructed by Bartier Perry Lawyers. The parties were unable to reach a resolution of the dispute and counsel provided oral submissions during the recorded hearing.
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 Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute, dated 6 March 2025, and attached documents;
(b)    Reply to Application to Resolve a Dispute, dated 28 March 2025, and attached documents, and
(c)    Direction issued on 14 April 2025.
The above documents were admitted into the proceedings, by consent.

Applicant’s statement

In evidence is a statement of the applicant dated 5 February 2025.
The applicant states that on 18 September 2019 while employed by the respondent as an Aged Care Worker she fell on her left-hand side after assisting a client shower. She explains that she felt immediate pain in her lower back.
The applicant provides a history of the treatment undertaken for her back, which included consultations with various treating practitioners and specialists for treatment and investigation. The treatment varied from injections in the lumbar spine, radiofrequency, physiotherapy to hydrotherapy.

Medical evidence

On 23 October 2019, Dr Ravi Kumar Cherukuri, treating neurosurgeon and spinal surgeon, provided a report. He records a history of the workplace incident and back pain radiating to the left leg and associated with “paraesthesia and weakness”. He recommended non-operative measures at that stage and continued physiotherapy. He said if the applicant did not respond to conservative measures he might need to consider surgical intervention, as a last resort.
The applicant attended on Dr Cherukuri again on 30 October 2019 with increasing pain. He referred her for nerve conduction studies to look for active radiculopathy. Those studies were undertaken on 11 November 2019, which found evidence of “very mild left L5 denervation”.
On 28 November 2019, Dr Cherukuri records no change in symptoms with further injection and indicated a need to consider surgery to try and free the nerve to see if that makes “any difference”. He recommended a left L4/5 laminotomy, foraminotomy, rhizolysis +/- microlumbar discectomy.
On or about April 2020, Dr Tan, pain specialist, performed left L4/5 nerve blocks which resulted in a reduction in pain intensity. He recommended radiofrequency rhizolysis but he reported in August 2020 that the insurer did not approve of this treatment.
On 22 May 2020, Dr Cherukuri records a history of the workplace incident, noting that the applicant has since then had back pain radiating to the left leg, “both front and back of the leg, more prominent posteriorly with associated paraesthesia and weakness”.
In response to a question as to whether he considers proposed left L4/5 laminotomy, foraminotomy, rhizolysis +/- microlumbar discectomy is reasonably necessary he records:
“Ongoing severe sciatica for 8 months, no response to adequate trial of conservative treatment, including injections, confirmed radiculopathy on electrophysiological studies.”
Dr Cherukuri considered that the applicant had exhausted all conservative treatment options available. He stated that he disagreed with Dr Davies’ report of January 2020, which found surgery was not reasonably necessary. He provided the following reasons:
“My initial opinion was that the pathology on scan is commiserate with clinical findings and I suggested non operative measures. However, electrophysiological studies suggest ongoing of symptoms from spine and given the persistent symptoms I feel it is reasonable to decompress the nerve.”
Dr Cherukuri adds that the applicant has unilateral sciatica raising the possibility of nerve irritation as a cause of her symptoms. He added that facet joint and epidural injections could be undertaken.
On 9 October 2020, Dr Randolph Gray, treating spinal surgeon, provided a report. He reported that the applicant presented with severe neuropathic pain to the point of a chronic pain syndrome. He found “no radiological evidence of any significant neural impingement. [The applicant’s] symptoms are disproportionate to the appearance of her MRI Imaging.” He did not see any role for surgical management in the absence of any significant neural compression. He thought that decompressive surgery would “possibly make her worse”. He recommended a referral back to Dr Tan who suggested radiofrequency ablation in April 2020.
On 11 February 2021, Dr David Manohar, consultant pain physician, provided a report noting a history of back pain extending to the left paralumbar region and down the leg. This included a burning, paraesthesia and throbbing pain.
On 31 March 2021, Dr Tan provided a report and recommended radiofrequency rhizolysis which she later underwent on or about September 2021. Dr Tan, on 6 October 2021, said that the rhizolysis did not appear to have had the desired effect as the pre-surgery pain was still present.
On 24 August 2022, the applicant underwent nerve conduction studies which revealed no significant lumbar radicular pathology.
On 31 August 2022, Dr Cherukuri records a history of extensive trial of conservative measures and despite this the applicant continues to experience back pain radiating down the left leg. He referred her for further investigations, including a repeat EMG/nerve conduction study to look for active radiculopathy.
On 14 September 2022, Dr Cherukuri records the results of the previous nerve conduction studies (which is presumably the studies conducted in August 2022). As a result of these studies, Dr Cherukuri said that “there is nothing surgical [he] could offer”.
On 15 March 2023, Associate Professor Paul Miniter, orthopaedic surgeon qualified by the respondent provides a report. He provides a history of the incident, symptoms and treatment. He records that the applicant has had extensive physiotherapy, hydrotherapy, osteopathic treatment, nerve blocks and pharmacology, all without any benefit. He records the applicant’s symptoms of “shooting pain” in her left foot, leg and lower back. He did not consider that she had any physical or neurological features.
Associate Professor Miniter records that the applicant had been assessed by Dr Cherukuri who had “not identified a surgical option”.
Associate Professor Miniter notes investigations undertaken, and refers to the CT scan undertaken immediately after the fall which showed “no evidence of injury” and the MRI scan showing L4/5 disc bulging but no evidence of impingement. He did not have the benefit of the scans, and requested that they be provided.
Associate Professor Miniter found “no evidence of injury” and no plausible explanation for the applicant’s presentation.
On 29 June 2023, Dr Cherukuri provided two reports. In the first report he records a history of back pain and pain radiating down the left leg. He referred the applicant for a further MRI scan. He recommends referral to a pain specialist as the August 2022 investigations failed to reveal severe nerve compression. In the second report, he records a similar history of ongoing pain and severe sciatica but notes that the scan findings were mild. It was for this reason he “suggested nonoperative measures hoping that she would improve with time”. He said he did not have access to Associate Professor Miniter’s report but said that:
“Clinically it appears [that the applicant] has sciatica however, we have not found severe nerve compression to explain in spite of extensive investigations over the years including electrophysiological studies…given the recent deterioration, [he] referred her for repeat MRI scan and x-rays… [and said he might] consider repeating electrophysiological studies in case there is active radiculopathy.”
On 5 July 2023, Dr Cherukuri provides a further report. He refers to the recent MRI scan which shows disc degeneration at L4/5 and associated problems which he stated was similar to the previous scan in August 2022. He said there was no severe nerve compression. He stated that there was “nothing surgical [he] could find which would fix her symptoms, hence [he] suggested consultation with pain specialist”. He referred her for periradicular injection and a lumbar caudal epidural injection.
Dr Cherukuri adds that “electrophysiological studies failed to show active radiculopathy” and that this was why he was unable to assist from a surgical perspective. He thought with time, pain specialist management and physiotherapy her symptoms would resolve.
On 19 January 2024, Dr Ow-Yang provides a report to the applicant’s treating general practitioner. He notes a history of the September 2019 incident and that the applicant then suffered moderate to severe left-sided back pain radiating through the left anterolateral thigh and calf. He also notes that the applicant feels weakness in the left knee and sometimes it gives way. He records the treatment undertaken to include physiotherapy, hydrotherapy, chiropractic treatments, multiple analgesics, multidisciplinary chronic pain management, and lumbar steroid injections/blocks/denervation.
Dr Ow-Yang records that while the applicant was under the care of Dr Cherukuri a lumbar discectomy surgery was discussed in 2019 but this was declined as the applicant had not tried all other pain management strategies.
Dr Ow-Yang refers to the recent MRI scan of the lumbar spine and reproduces three images of that scan. He finds that the working diagnosis is L4/5 discogenic back pain with left L4 nerve irritation due to left L4/5 posterior disc annular tear and extra-foraminal disc bulge in contact with the left L4 nerve.
Dr Ow-Yang states that the applicant:
“…may consider lumbar steroid injections or denervation procedures to try to alleviate any musculoligamentous pain. There is a 50% chance of improving pain management and the effect can be temporary. Very rarely, the injections will release the muscular guarding and then the disc and may protrude soon after due to a loss of muscular guarding or support.
Surgery is considered the very last and final option. In the setting of symptomatic nerve compression with lower limb radicular symptoms, a minimally invasive nerve decompression surgery such as a microdiscectomy can be considered. The removal of the internal components of the disc may alleviate some of the pressure related to discogenic low back pain. However, the surgical treatment for chronic mechanical low back pain requires either a lumbar disc replacement or lumbar interbody fusion surgery. This type of surgery is reserved as the very last and final option, only if the mechanical back pain symptoms have been present for more than 6-12 months to indicate chronicity and maximal non-surgical treatments fail to give adequate relief. The level of pain and disability also has to be significant enough to warrant the size of surgery required to perform a lumbar interbody fusion surgery. The various approaches to surgery and risks and benefits were also discussed.
The ideal timing for surgery is typically within the first 1 or 2 years after injury. Now that it has been 5 years since injury there are other chronic pain components that have become entrenched such as central sensitization. This reduces the probability of any benefit with maximal surgical treatment of the structural injury.
The maximal surgical treatment for the structural injury involves a L4/5 decompression plus complete disc removal, plus posterior interbody fusion, plus pedicle screw internal fixation and posterolateral fusion. I would only be able to offer a 50% chance of improving any symptom with surgery. I have warned her that there is a fair chance that she may feel worse after surgery at least for the first 12 months due to the traumatic nature of the surgery.
The decision for treatment also ties in with her current medicolegal situation. We had a discussion about the management of the legal compensation claim and the processes involved. Causality and impairment assessments are performed by a medicolegal specialist to which the patient’s lawyer needs to refer. The legal compensation pathway involves the patient undergoing maximal medical treatment to which the patient is willing to consent. This does not mean that all symptoms have resolved, as often in these cases, the patient will report ongoing pain despite appropriate, optimal, and uncomplicated definitive surgical treatment. Once maximal medical improvement has been achieved and the condition is considered stabilised, then the patient may undergo a whole person permanent impairment assessment by an independent medical examiner.”
Dr Ow-Yang continues discussion of the medico-legal process, then states:
“Despite the low probability of achieving medical benefit or improvement in pain management with surgery, she requested surgery to maximally treat the injury or ‘fix’ the injury prior to legal finalisation process.
I discouraged [the applicant] from surgery today and we have held off on requesting any further treatment until she has had time to contemplate her options and discuss the legal situation with her legal team. It may be more advantageous to proceed with finalisation rather than consider any further medical treatment or surgery bearing in mind the lack of certainty as to whether she would benefit with surgery.
She is still entitled to maximal medical treatment for the structural injury and if she returns for review then we will have another discussion about what is available. In the meantime, I will chase up some of her old scans from Wollongong so I can get a feel for how the disc injury has progressed over time.
In summary: [The applicant] suffers L4/5 discogenic back pain with left L4 nerve irritation due to a left L4/5 posterior disc annular tear and extra-foraminal disc bulge in contact with the left L4 nerve. It is likely that a chronic pain syndrome and central sensitization has ensued. There is also the external complicating factor of the compensation claim. I explained the structural pathology, the natural history and treatment options. Surgery is not recommended and it will not likely improve overall symptoms, but she is entitled to maximal treatment of the structural injury. This would require an L4/5 interbody fusion surgery. The likelihood of a positive outcome from surgery would have been much higher had the surgery been done within the first year or 2 after the initial injury before external complicating factors became more entrenched.” (emphasis included in original)
On 1 March 2024, Dr Ow-Yang provided a further report. He reports that the applicant understands that the structural injury that correlates with the work injury involves a left L4/5 posterior disc and annular tear with left L4 nerve irritation. He states that the applicant has “failed to improve with maximal non-surgical management.” He had a discussion with her regarding the “final option and last resort of surgery to maximally treat the structural pathology”. He adds that the applicant is “fully aware that the surgery will not cure her pain or her condition and the surgeries aimed at trying to improve symptoms in order for her to move forward with her recovery and finalise the worker’s compensation claim”.
Dr Ow-Yang states that he had “extensive discussions [with the applicant] regarding the medicolegal processes involved with the claim and where surgery fits in with the injury claim”. He notes that the applicant had time to think and discuss her options with her family.
Dr Ow-Yang reproduces images of the MRI of the lumbar spine which he states show “correlating structural pathology involving a left L4/5 posterior disc annular tear and extra-foraminal disc bulge in contact with the left L4 nerve”. He adds that the working diagnosis is “L4/5 discogenic back pain with left L4 nerve irritation due to a left L4/5 posterior disc annular tear and extra-foraminal disc bulge in contact with the left L4 nerve”.

Dr Ow-Yang states that the applicant has elected to proceed with the proposed surgery. He states that there is a “50% chance of improving pain”. He explained the risks and complications that might arise with surgery. He further states that by “6 months after surgery she will have reached maximal medical treatment and any residual symptoms may then be considered permanent” and that there are no further treatment options available after that point. He adds that the applicant will “then seek finalization processes for claim”.
On 4 March 2024, Dr Ow-Yang requests approval for a “Bilateral L4/5 wiltse approach to L4/5 decompression + posterior interbody fusion + pedicle screw internal fixation + posterolateral fusion procedure”. The total fee for the procedure is estimated at $10,632.50.
On 2 July 2024, Associate Professor Miniter provided a supplementary report. He records ongoing left-sided leg pain that passes down to the foot. He refers to the recent MRI scan and confirms L4/5 disc abnormality but no evidence of nerve root compression. He could see no clear evidence of injury and considered the applicant’s presentation to be “non-genuine”.
Associate Professor Miniter records that he is surprised that Dr Ow-Yang would recommend surgery, noting he indicated a 50% chance of pain relief. Associate Professor Miniter said “50% is like tossing a coin and is not sufficient for someone to undergo a surgical procedure in the lumbar spine.” He considered the recommendation for surgery as inappropriate and did not consider that there would be a positive outcome from such surgery. He did not consider the surgery was in the applicant’s interest or reasonably necessary. He added that the applicant’s clinical signs and symptoms did not correlate with pathology.
On 1 October 2024, Associate Professor Miniter provides a further supplementary report in which he assesses the applicant at 0% whole person impairment of the lumbar spine.
On 11 December 2024, Dr Anil Nair, orthopaedic surgeon qualified by the applicant provides a report. Dr Nair provides a history of the workplace fall in September 2019, and the development of sharp and significant lower back pain radiating into the lower extremity.
Dr Nair notes that Dr Cherukuri recommended a lumbar decompression and that this procedure was not supported by the insurer. Dr Nair notes that Dr Gray provided a second opinion and did not recommend surgical treatment. Dr Nair further notes that the applicant moved to Young and came under the care of Dr Ow-Yang, who recommended a lumbar fusion.
Dr Nair records the applicant’s current symptoms to include “lower back pain with radiation into the left lower extremity. The pain is provoked by bending, twisting and lifting”.
Dr Nair states that the applicant has “clinical and radiological evidence of L4-L5 degenerative disc disease with consequent mechanical and radicular symptoms” and that “[d]iagnostic reports have been considered”.
Dr Nair considers the available treatment options to address the symptoms in the lumbar spine. He states that the applicant has obtained multiple medical opinions. He records that:
“She consulted Dr Ow-Yang, who discussed the predictability and intrusiveness of the surgical procedure. She is well informed about the possibilities of success. I would agree with the probability of success provided by Dr Ow-Yang. In terms of the proposed treatment, there would certainly be a cohort of surgeons who would offer treatment after details about the intrusiveness and predictability of the procedure. She has exhausted all alternatives.”
Dr Nair adds that if the applicant undergoes the surgery she will require physiotherapy. However, he states that if she does not undergo the surgery “there is no other predictable treatment”.
In evidence are a series of clinical notes from the applicant’s treating general practitioner. Of relevance, in 2024 the applicant saw her treating general practitioner approximately 25 times. Of those attendances some related to her back, however there was only one entry on 24 October 2024 that specified any particular detail of pain. That entry records chronic back pain “shoots down back, back of leg, front of leg, knee, ankle” and notes a “trapped sciatic nerve”.
The applicant also underwent several radiological investigations of the lumbar spine. This included X-ray, CT and MRI scans, on 18 September 2019 (CT scan), 1 October 2019 (MRI scan), 15 October 2019 (X-ray),18 August 2020 (MRI scan), 18 August 2022 (MRI scan), 26 June 2023 (MRI scan) and 4 January 2024 (MRI scan).

SUBMISSIONS

The applicant and respondent provided oral submissions during the hearing which were recorded. Those submissions will not be repeated in full but have been considered and will be referred to where relevant.

Applicant’s submissions

The applicant refers to the evidence of Dr Cherukuri. Dr Cherukuri records lower back pain and left sciatica with a weakness of the leg. He opines that the presence of radiculopathy was confirmed with electrophysiological testing. He considered a discectomy procedure as an appropriate form of treatment. That procedure did not take place and the insurer did not provide approval for the surgery. Dr Cherukuri continued to treat the applicant conservatively to manage her symptoms.
The applicant notes that she was referred to Dr Gray in 2020 for a second opinion. In his report of 9 October 2020, he recorded presence of low back pain and left sided sciatica. He considered the symptoms were difficult to explain on the MRI scan findings from October 2019 and he did not consider surgery an appropriate form of treatment.
The applicant submits that she underwent an extensive course of conservative treatment, including physiotherapy, chiropractic treatment, hydrotherapy and various prescribed painkillers. She was referred to a pain specialist, Dr Tan, in March 2021 and by September 2021 he performed rhizolysis but her pain levels were the same by October 2021. The rhizolysis had not brought about a symptomatic improvement.
The applicant refers to the evidence of Dr Manohar, noting that various injections and procedures were undertaken to alleviate persistent symptoms without long term benefit.
The applicant submits that she relocated to the Young district in 2024, and came under the care of Dr Ow-Yang. The applicant refers to the evidence of Dr Ow-Yang. There was initial reluctance to proceed with surgery, but symptoms persisted with conservative treatment and there was no symptomatic improvement. The applicant submits given the Commission’s expertise to deal with medical matters it is reasonable to infer that the applicant’s left sided sciatica reported by Dr Ow-Yang is because of the affected left nerve. The applicant submits that the complaint of where the sciatica is and the left leg giving way correlates with the identification of the annular tear and bulging contact with the nerve. The radiology is demonstrating compression of the left L4 nerve.
The applicant refers to Dr Ow-Yang’s comments on treatment options. He refers to the problems that can be encountered when trying to manage pain in the setting of a medico-legal claim. He discourages the applicant from undertaking surgery. He then refers to the longer the period of time there becomes a diminishing prospect of a good outcome. He then says it will not likely improve the applicant’s overall symptoms but she is entitled to maximal treatment of the structural injury which would require an L/5 interbody fusion surgery.
The applicant further refers to Dr Ow-Yang’s subsequent report. He notes very cautiously and appropriately that the applicant is fully aware that surgery will not cure her of pain or condition, and that the surgery is aimed at trying to improve symptoms in order to move forward in recovery. He notes that the applicant has elected to proceed with the surgery, explains the risks and says there is a 50% chance of improving pain.
The applicant submits that the surgery is reasonably necessary to allow her to move forward with some element of recovery. The applicant submits that Dr Ow-Yang’s comment about a 50% chance of improving pain is commented on by Associate Professor Miniter in his March 2023 report. Associate Professor Miniter does not have the benefit of the MRI scans and expresses an opinion that the applicant was not injured which does not sit well with the rest of the history and medical opinions. Associate Professor Miniter provides a supplementary report in July 2024, where he notes he reviewed the MRI scans and comments on Dr Ow-Yang’s estimation of a 50% chance of improving pain. He refers to this as “like tossing a coin” and uses it as part of his reasoning process to say that this means surgery is inappropriate. Associate Professor Miniter does not reasonably consider the fact that if surgery is not pursued there is a 100% of ongoing problems, in forming a conclusion that surgery is not reasonable. His report does not provide a diagnosis, repeats the comment that there is no injury, which is inconsistent with the balance of the medical opinions.
The applicant contends that even if it is only a 50% chance, that is still a very significant chance of getting an improvement. If it is not pursued there is a 100% chance of ongoing problems at that level. The applicant should not be deprived of the possibility of this improvement occurring by surgery, which is an accepted procedure to perform where there is ongoing sciatica.
The applicant refers to the opinion of Dr Nair who concludes there are mechanical and radicular symptoms from the fall. He considers that the applicant has exhausted all alternative measures and the proposed surgery is now appropriate. He agrees with the possibility of success provided by Dr Ow-Yang.
The applicant submits there are several factors to consider in determining reasonableness of the medical treatment. Even if there is a 50% chance of success the applicant submits that this is still enormously valuable as the alternative would be to continue in the unsatisfactory situation with ongoing symptoms which she has not been able to get a better outcome with conservative treatment. There are more conservative options to surgery but these options have been pursued. The proposed surgery is an accepted procedure performed by the medical profession. There is nothing particularly remarkable or prohibitive about the costs of this procedure. These factors have been made out in such a way as to make the proposed surgery appropriate and reasonably necessary as a result of the injury.

Respondent’s submissions

The respondent submits that the applicant has a mechanical back injury. The applicant refers to a history of radiculopathy but the respondent submits that the most reliable objective measure to assess radiculopathy, being electrophysiological studies, have failed to show any radiculopathy. The reason for the proposed treatment is essentially discogenic back pain and a mechanical back injury.
The respondent contends that a theme that runs through the applicant’s submissions is that she is entitled to explore maximum medical treatment. In other words, the applicant submits she is entitled to anything that might have some prospect of alleviating her pain. The test is whether the surgery is reasonably necessary.
The respondent asserts that the idea that it should be liable for maximum medical improvement, which is a phrase Dr Ow-Yang uses, is not a concept that can be embraced.
The respondent submits that this is a case where Dr Gray, Dr Cherukuri, and Associate Professor Miniter do not support surgery. Dr Nair supports surgery but his opinion is no more than a mimic or echo of Dr Ow-Yang’s opinion which does not assist. While it is not a numerical exercise, the weight of the evidence in this case does not support the applicant’s case.
The respondent submits that Dr Nair did not consider Dr Cherukuri’s latest report which does not support surgery. He is operating under the misapprehension that Dr Cherukuri ultimately supports surgical intervention, and this is a critical piece of history that he gets wrong.
The respondent contends that the more fundamental problem with Dr Nair’s report is that he simply says that he would agree with Dr Ow-Yang. However, he does not engage in an analysis of why he independently formed the view that Dr Ow-Yang is correct.
The respondent concedes the applicant has undergone a wide range of conservative treatment, but submits that it does not flow that because this treatment has not helped that extreme surgical treatment will in fact help.
The respondent refers to Dr Ow-Yang’s evidence regarding the ideal timing and effectiveness of surgery. He provides a magical figure of 50% success, but it is not clear how he arrives at that number. The respondent submits that it is clear that the effectiveness of any surgical intervention at this point in time would be significantly diminished.
The respondent also refers to Dr Ow-Yang’s comments on the medico-legal situation. The respondent submits that this forms part of his reasoning that surgery should be undertaken because it will let the applicant reach maximum medical treatment to assist her in finalising her statutory rights. The respondent submits that Dr Ow-Yang is using the benefit of finalisation of the applicant’s workers compensation claim as part of the reasoning to recommend treatment. The respondent submits that this is wholly inappropriate and undermines the weight to put on that report.
The respondent submits that Dr Ow-Yang states that the applicant is entitled to maximum medical treatment, using a phrase he used earlier in the medico-legal context, but this is not the test. An applicant is entitled to treatment that is reasonably necessary.
The respondent concedes that Associate Professor Miniter’s opinion is not of much assistance as it is somewhat of an outlier. However, he is correct in that a 50% chance of success is analogous to “flipping a coin”.
The respondent submits whether the treatment is likely to be effective is one factor of consideration in determining reasonableness, and 50% is not likely. It is equally likely that the treatment is not going to be effective. It is not true that there is a 100% chance of no improvement if surgery is not undertaken because Dr Ow-Yang refers to other conservative treatment options. The question is whether the respondent should pay for the treatment, and 50% does not make it likely that the treatment is going to assist.
The respondent refers to Dr Cherukuri’s opinion. In 2020 there is an indication that surgical treatment is appropriate because non-operative measures had not led anywhere but by 2023 he provides an opinion that there is nothing surgical he could recommend. He confirms that he has not found severe nerve compression to explain the applicant’s symptoms and there is nothing that post-dates this opinion on the nerve compression. The most recent opinion is that surgery is not recommended, and this is consistent with Dr Gray and supported by Associate Professor Miniter.
The respondent submits that not much weight may be placed on Dr Nair’s opinion and Dr Ow-Yang’s opinion is significantly undermined by his reasoning process, which in-part takes into account improving the applicant’s position or at least giving her maximum medical treatment in order that her workers compensation claim can be finalised.
In further submissions in reply, the respondent clarified that he concedes that a 50% chance of success is a very significant chance of a good outcome but that does not mean it is likely to be effective in terms of Diab.
The respondent submits there is no evidence that Dr Nair had the full suite of material to form a view on radiculopathy. There is no evidence that he had the electrophysiological studies referred to by Dr Cherukuri which might make sense in circumstances where he has not taken into account what Dr Cherukuri ultimately says in 2023 about not recommending surgical intervention because of what those studies revealed. The respondent later conceded that Dr Nair had access to Dr Ow-Yang’s report which reproduced the images taken from the MRI scans.
The respondent asserts that Dr Ow-Yang’s reference to maximal is not akin to addressing the right test but using different use of the English language. It would be an error to read the word maximal as akin to or as conveying the same concept as reasonable necessity.
Dr Ow-Yang notes that the legal compensation pathway involves the patient undergoing “maximum medical treatment”. It is a phrase appearing in his second report about why he recommends the treatment because it’s a maximal improvement. This concept has been introduced when he is explaining how the legal process works.

Applicant’s submissions in reply

The applicant submits that Dr Nair’s report was prepared in a fair climate. The history does not have to be completely and totally perfect. The fair climate is the occurrence of the injury, the symptoms described as flowing from the injury and the symptoms that persist, and the radiological investigations. He has a good understanding of the background and his opinion cannot be diminished by a particular discrepancy that does not appear to be crucial to any reasoning process of Dr Nair. The history provided provides a fair climate for the acceptance of Dr Nair’s opinion.
The applicant refers to Dr Ow-Yang’s comment on 50% chance of an effective outcome. Any surgery is not guaranteed to produce a beneficial outcome, but a 50% change is still a very significant chance of getting a good outcome. It does not make the surgery not reasonable or not necessary simply because there is no guarantee or no better odds of getting a better outcome. This must be weighed against not having that 50% chance of getting an improvement in symptoms against a 100% chance that the current situation is going to continue. Medical treatments will often have poor prospects of success, and the applicant refers to a situation where a serious fracture might have poor prospects of being successfully united but orthopaedic surgeons will still try and unite it even though the limb might end up being amputated. The surgical procedure is attempted in the hope it brings about a useful outcome.
The applicant submits that Dr Ow-Yang considered the most recent MRI scan, as a qualified neurosurgeon. He reproduces the findings in his report and says that the scan shows compression of the nerve, which is what produces radiculopathy. There is clearly involvement in the disc pressing on the nerve.
The applicant refers to the phrase maximum medical improvement used by Dr Ow-Yang. It is a phrase used in an elaborate letter to the applicant’s treating general practitioner. It is not a medicolegal report. Dr Ow-Yang is just describing reasonably necessary medical treatment by using other words. He is trying to achieve the removal of the pressure on the nerve root with a suitable and routinely performed surgical procedure. It is maximum medical treatment with a procedure which is accepted by his peers and appropriate to obtain symptomatic relief. It does not indicate that the doctor has considered the phrase maximum medical improvement in the workers compensation legislation.
The applicant submits in further response to the respondent that Dr Nair had the report of Dr Ow-Yang which reproduces the images taken from the scans.

FINDINGS AND REASONS

Relevant law

The applicant bears the onus of proof, to establish her case under s 60 of the 1987 Act, on the balance of probabilities.[1] Section 60 of the 1987 Act requires two questions to be answered in the affirmative. Firstly, whether the proposed surgery “results from” the accepted injury, and, secondly, whether the proposed surgery is “reasonably necessary”. These are questions which involve matters of impression and degree, having regard to the available evidence.[2]
[1] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [44] (per McDougall J (McColl and Bell JJA agreeing)); Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[2] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796; Diab v NRMA Ltd [2014] NSWWCCPD 72.

The first question does not require determination. That is because the respondent concedes that the proposed surgery is “as a result of” the accepted lumbar spine injury. The only question that requires determination is whether the proposed surgery is “reasonably necessary”.
Deputy President Roche, in Diab v NRMA Limited (Diab),[3] considered the application of s 60 of the 1987 Act and the phrase “reasonably necessary”. Deputy President Roche stated:
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.”[4] (footnotes omitted)
[3] [2014] NSWWCPD 72.
[4] Diab v NRMA Limited [2014] NSWWCPD 72, [86].
Deputy President Roche then considered the criteria of reasonableness:
“[88] In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a)     the appropriateness of the particular treatment;
(b)     the availability of alternative treatment, and its potential effectiveness;
(c)     the cost of the treatment;
(d)     the actual or potential effectiveness of the treatment, and
(e)     the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
[89] With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
[90] While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”[5] (footnotes and citations omitted; emphasis added)
[5] Diab v NRMA Limited [2014] NSWWCPD 72, [88]-[90].

Discussion

There is no dispute that the applicant sustained a lumbar spine injury on 18 September 2019, or that the proposed surgery results from that injury. The only dispute agreed between the parties is whether the proposed surgery is reasonably necessary, which the applicant must satisfy on the balance of probabilities.
The respondent disputes the claim on the following main bases:
(a)    that there is no recent objective evidence of radiculopathy;
(b)    that Dr Ow-Yang’s opinion on surgery as reasonably necessary cannot be accepted because:
(i)his view is affected by his comments of the medicolegal process;
(ii)maximum medical treatment is not the legal test, and
(iii)a 50% chance of success does not mean it is “likely to be effective” in terms of Diab;
(c)    that Dr Nair’s opinion on surgery as reasonably necessary is affected by:
(i)an incomplete history regarding Dr Cherukuri’s opinion;
(ii)absence of a full suite of the objective investigations, and
(iii)merely mimicking or echoing Dr Ow-Yang’s opinion,
(d)    that there is alternative conservative treatment available, and
(e)    the balance of the medical evidence does not support surgical intervention.
There are several criteria (or factors) that may be considered in determining whether the proposed surgery is reasonably necessary, but ultimately it is a question that requires a careful analysis of the evidence. In Diab, Deputy President Roche set out several factors of consideration as relevant in determining the test of reasonable necessity but said while these are useful heads for consideration the question remains whether the treatment is reasonably necessary. That is, the failure to meet one of those factors of consideration does not prevent a finding that the proposed surgery is reasonably necessary nor should the factors detract from the essential test of whether the proposed surgery is reasonably necessary. Having regard to the test of reasonably necessary and the factors in Diab, I make the following findings.

Symptoms

The applicant continues to have persisting and disabling pain which has not improved with conservative measures. This includes report of complaint of radicular pain. This is accepted, although there is a dispute as to whether there is any evidence of active (objective) radiculopathy.
In November 2019 the nerve conduction studies showed mild L5 denervation. Contrary to the respondent’s submission, it was on this basis (and on a background of failed conservative treatment) that Dr Cherukuri, the applicant’s then treating neurosurgeon, initially recommended surgery in 2020. That surgery did not proceed. However, by August 2022 further nerve conduction studies revealed no significant lumbar radicular pathology and on this basis Dr Cherukuri considered there was nothing surgical he could offer the applicant. Dr Cherukuri recommended a repeat of nerve conduction studies to identify active radiculopathy but it is unclear whether this occurred. He considered with time and further conservative treatment her symptoms would resolve, but this did not occur on the evidence set out above.
The applicant then continued to undergo a significant course of conservative treatment which did not provide any lasting symptomatic relief. That treatment included physiotherapy, osteopathy, hydrotherapy, nerve blocks and denervation procedures and ongoing pharmacological treatment. It was not until 2024 that surgery was again contemplated and recommended, but this time by Dr Ow-Yang her then current treating neurologist and a different form of surgical procedure was suggested.
Dr Ow-Yang records a history of moderate to severe left-sided back pain radiating through the left leg. He notes the recent MRI scan, which would have been the January 2024 MRI scan at that point in time, and reproduces some of the images of that scan before providing a diagnosis of L4/5 discogenic back pain with left L4 nerve irritation due to left L4/5 posterior disc annular tear and extra-foraminal disc bulge in contact with the left L4 nerve.
I accept that it is reasonable to infer as the applicant suggests, given the Commission’s expert knowledge in understanding medical evidence, that the left annular tear and L4 nerve irritation identified in the radiological images, is the cause of the left radicular symptoms recorded by Dr Ow-Yang.[6] Those symptoms include the left-sided back pain radiating through the left leg and leg giving way. These symptoms correlate with the radiological findings of an annular tear and disc bulge compressing the nerve. Indeed, Dr Cherukuri in 2020 considered the possibility of nerve irritation as the cause of her symptoms. That there are no recent nerve conduction studies demonstrating active radiculopathy does not exclude clinical findings of radiculopathy. In any event, the last evidence of nerve conduction studies took place several years earlier in August 2022 and the 2023 report of Dr Cherukuri does not state these studies exclude the existence of radiculopathy, but merely that there was “no significant” lumbar radicular pathology from the findings. It follows that the evidence demonstrates that the applicant has signs and symptoms of radiculopathy, which have persisted since 2019.
[6] Workers Compensation Nominal Insurer v Howard [2011] NSWWCCPD 37, [89]; Hendrix v Accuro Homecare Pty Ltd [2023] NSWPICPD 48, [85]-[86].

Dr Ow-Yang

I accept that Dr Ow-Yang provides a significant overview of the medico-legal process for workers compensation claims. I have extracted a significant proportion of his reports and closely reviewed his reasoning process. It is unclear the purpose of the detail and reference to the medico-legal process as there is no evidence to explain it. This level of detail of the medico-legal process is unusual in a report of a treating practitioner to a treating general practitioner but I accept at the relevant time the applicant was pursuing her legal rights and it was probably something that was discussed during her consultations. The report must be viewed, as the applicant submits, in the context of a detailed report to the applicant’s treating general practitioner and not as a medico-legal report. I also note that the level of detail on the medico-legal process is consistent with the commentary on other matters in the report.
I do not accept, as the respondent submits, that Dr Ow-Yang’s independent medical opinion has been coloured by reference to the medico-legal process. I do not consider that I am able to draw an inference that his opinion to recommend surgery is made in-part with a view to the applicant seeking compensation or further pursuit of legal entitlements, despite references to finalisation of the legal process/claim. Nor do I consider that Dr Ow-Yang’s reference to maximal medical improvement is necessarily a reference to the legal process.
Dr Ow-Yang’s medical opinion must be read in context. Dr Ow-Yang explains that the “maximal surgical treatment” of the structural injury is surgery. He later states that once “maximal medical improvement” has been achieved and the condition is considered stabilised the applicant may undergo a whole person permanent impairment assessment. He considers a “low probability” of achieving “medical benefit or improvement in pain management with surgery” but notes that the applicant requested “surgery to maximally treat the injury or ‘fix’ the injury prior to legal finalisation process”. He also states that the applicant is entitled to “maximal treatment of the structural injury”.
Dr Ow-Yang refers to the medico-legal process and uses phrases or terms similar to the statutory language of maximal medical improvement. However, he does not state that the applicant is pursuing the surgery or he has recommended the surgery for the reason of achieving maximal medical improvement in order for the applicant to pursue further legal rights. He clearly explains the pursuit of the further treatment is to improve her symptoms which have been persistently troubling since the injury. This is consistent with the entirety of the medical evidence which indicates a pattern of the applicant genuinely seeking and undergoing various forms of treatment to improve and/or resolve ongoing symptomatology in her lumbar spine.
The respondent has not identified any evidence, apart from the report of Dr Ow-Yang, to suggest that the applicant is seeking the proposed surgery for reason to advance other potential workers compensation rights or benefits. The applicant has had persistent ongoing pain in her lumbar spine and radicular pain for which she has pursued and undergone significant conservative treatment. This has consistently been recorded by multiple medical practitioners. The evidence is clear that the applicant is pursuing symptomatic relief and has done so since the date of the workplace injury. To the extent the respondent contends that the opinion of Dr Ow-Yang cannot be given any weight on the basis it has been prepared in a climate to pursue further legal rights that submission is not available on review of his evidence or when read against the balance of the evidence in the proceedings.

Reasonably necessary

I accept that Dr Ow-Yang may have a different way of expressing a view on the need for the proposed surgery, but accept the respondent’s submission that he has not expressed an opinion that the surgery is “reasonably necessary”. In this regard, I consider the reference to maximal medical improvement or treatment is a different way of saying the proposed surgery is the final option to address (or maximally treat) the structural issues in the lumbar spine. It is likely that Dr Ow-Yang has not used the language of the statute or phrase “reasonably necessary” because his reports have not been prepared as a medico-legal opinion. In any event, the failure to use the statutory language is not fatal to the applicant’s case.
Dr Ow-Yang’s opinion on surgery is supported by Dr Nair, who considers it to be reasonably necessary. Dr Nair provides a consistent history of the injury, complaint of pain and treatment undertaken. The respondent sought to contend that Dr Nair’s opinion was not prepared in a fair climate on two main bases. Firstly, because he did not have a complete suite of the radiological investigations, and secondly because he failed to have regard to Dr Cherukuri’s most recent opinion that there were no surgical options available. The respondent sought to contend that this impacted the weight that could be attached to Dr Nair’s opinion on the reasonable necessity of the proposed surgery.
I accept that Dr Nair did not have a complete record of the objective investigations. However, I do not consider that this impacts the weight to be attached to his opinion. Firstly, he had the MRI of June 2023 and the report of Dr Ow-Yang which reproduced the findings and some images of the most recent MRI scan. Secondly, the history recorded by Dr Nair is not inconsistent with the objective evidence. His findings and diagnosis are consistent with the MRI scans, which show L4/5 abnormalities and L4 nerve compression. To the extent that Dr Nair’s findings are different to the August 2022 nerve conduction studies, which I do not accept, they represent his clinical findings on examination over two years later (and are not inconsistent with the November 2019 nerve conduction studies).
I also accept that it might be arguable that Dr Nair did not have a complete history of Dr Cherukuri’s opinion, but I do not consider that this is fatal. Dr Cherukuri was not the applicant’s treating neurosurgeon at the time of Dr Nair’s examination, it was Dr Ow-Yang. Dr Nair had access to Dr Ow-Yang’s recent opinion. Further, Dr Nair’s opinion on surgery was not prefaced on the recommendation for surgery made by Dr Cherukuri. There is no evidence that it formed any basis for his opinion, and, even if it did, there is no basis to suggest that an incomplete history of Dr Cherukuri’s opinion impacts an independent finding made over a year later by Dr Nair that surgery is reasonably necessary.
There must be a “fair climate” on which an expert bases an opinion and exact correspondence between the history recorded and what is established on the evidence is not necessary for the validity of the medical opinion.[7] As the applicant submits, Dr Nair’s opinion was prepared in a fair climate having a complete history of the injury, complaint of pain, treatment undertaken and recent radiological investigations. To the extent that there is a blemish or imperfection/s in the history recorded it is insignificant.
[7] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305.
I accept that Dr Nair adopts Dr Ow-Yang’s opinion. While Dr Nair may adopt Dr Ow-Yang’s opinion about the possibilities or probabilities of success, his opinion is not merely an echo or mimic of that opinion. Dr Nair explains that there would be a cohort of surgeons who would offer the proposed surgery after being provided with the “details about the intrusiveness and predictability of the procedure”. He also notes that the applicant had exhausted all alternatives. While the applicant may have other alternatives available, as discussed from [126], these do not address the structural issue causing the applicant’s ongoing complaint.
The respondent properly conceded that Associate Professor Miniter’s evidence cannot be given significant weight, because it is based on an opinion that the applicant did not sustain an injury which is inconsistent with the balance of the medical evidence and the acceptance of the lumbar spine injury by the respondent. The only relevance it has is in respect of the comment that Dr Ow-Yang’s view that the proposed surgery had a 50% chance of success was equivalent to “tossing a coin” and that he did not recommend the surgery.

50% chance of success

A significant focus of the parties’ submissions centred on Dr Ow-Yang’s comment that the proposed surgery would likely provide a 50% chance of alleviating the applicant’s symptoms. The respondent sought to argue that Dr Ow-Yang’s finding of surgery providing a 50% chance of success did not mean it was likely to be effective in terms of Diab, and on this basis not reasonably necessary. I assume this is a reference to criterion (e) or possibly (d) of the criteria in Diab (see [96] above). However, for the reasons that follow, even if I were to agree with the respondent, I do not accept that this is necessarily determinative of the applicant’s claim.
Firstly, the factors in Diab are consistent with (and modify in-part) the criteria in Rose. These factors are not an exhaustive list of factors nor are they mandatory considerations in determining the test of whether treatment is reasonably necessary. Indeed, one factor is not determinative over another. The respondent even conceded at one point that the likely effectiveness of the proposed surgery was one of the relevant factors of consideration. The factors represent useful heads of consideration which must be considered together against the facts unique to the present proceedings.
Secondly, the phrase “reasonably necessary” and “likely to be effective” convey very different meanings. The need for treatment to be “likely to be effective” suggests a higher standard of proof to meet than the concept that it must be “reasonably necessary”. As Deputy President Roche said in Diab, all forms of treatment such as surgery may carry “a risk of a less than ideal result” and “a poor outcome [or poor prospect] does not necessarily mean that the treatment was [or will not be] reasonably necessary”. This is particularly where, as established in the present proceedings, the purpose and potential effect of the proposed surgery is to alleviate the consequences of the accepted injury.[8]
[8] Rose v Health Commission (NSW) (1986) 2 NSWCCR 32, 48A.
Thirdly, Dr Ow-Yang was of the view that the proposed surgery was the only method of treatment to address the applicant’s structural problem in her lumbar spine. There are no alternative options to address that structural issue.
Fourthly, while Dr Ow-Yang cautions the probability of medical benefit of the structural injury and symptoms with surgery given the time that has lapsed since the injury. However, he still recommends the proposed surgery to alleviate her symptoms and maximally treat the structural injury. The proposed surgery is essential and should not be withheld from the applicant.[9]
[9] Rose v Health Commission (NSW) (1986) 2 NSWCCR 32, 48B.
Fifthly, I accept that the potential likely effectiveness of the proposed surgery is equally balanced. However, as the respondent properly conceded, there is a very significant chance of improvement with the proposed surgery.

Sixthly, the applicant has undertaken a significant amount of conservative treatment to no avail but has had no lasting symptomatic relief. It is unlikely that further conservative treatment will have any effect and this is supported by the medical evidence (see also from [126]).
It follows that I do not accept Dr Ow-Yang’s comment that the proposed surgery will provide a 50% chance of improving symptoms means that the treatment will not be effective or is not appropriate.

Appropriateness of treatment

The applicant seeks to undergo the proposed surgery. For the reasons discussed above, I am satisfied that the proposed treatment is appropriate to address the applicant’s symptoms of pain in her lumbar spine.

Alternative treatment

The availability of alternative treatment is a factor to be considered in determining if the proposed surgery is reasonably necessary. There are clearly a range of treatments available to the applicant which the applicant may undertake to provide relief. That that treatment may not be absolutely necessary or the only treatment that may provide relief does not preclude it from being reasonably necessary.[10]
[10] Diab v NRMA Limited [2014] NSWWCPD 72, [86].
I accept, as the respondent submits, that Dr Ow-Yang expressed an opinion that there may be other treatment options available. In his initial report Dr Ow-Yang considered this treatment included a lumbar spine steroid injection or denervation procedure to alleviate “musculoligamentous pain” but he accepted that the effects may be temporary. He later explained that the proposed surgical treatment was to alleviate discogenic low back pain and mechanical issues. It is clear that his opinion of alternative treatments would not address the entirety of the applicant’s complaints or even provide lasting symptomatic relief, and that surgery would provide a chance of alleviating her symptoms on a more lasting basis.
The applicant has undergone extensive conservative treatment options, without any or any lasting relief. Indeed, it is accepted that the applicant has undergone nerve block and denervation procedures which did not result in the desired symptomatic relief.
It is necessary to look at the complete medical history, which includes symptoms and treatment over time. I do not consider the alternative treatment proposed or that may be available will be effective at addressing the applicant’s persisting symptoms. Indeed, the respondent conceded that these options would only provide temporary relief.

Cost of treatment

The cost of the proposed surgery is $10,632.50. The proposed cost is not prohibitive and has not been put in issue by the respondent.

Effectiveness of treatment

The potential effectiveness of the treatment is disputed. As discussed above, the probability of the proposed surgery providing effective relief is evenly balanced. However, I accept that undertaking the treatment is the only option to address the structural issues the applicant is facing in her lumbar spine. I also accept, as the applicant submits, the alternative is likely ongoing persisting symptomatology in the lumbar spine. In this regard, I note the extensive conservative treatment undertaken by the applicant which includes nerve block injections and denervation which did not provide the desired relief and the evidence of persisting radicular pain. The proposed surgery aims to address the structural issue in the lumbar spine and alleviate associated symptoms.
I accept the potential effectiveness of the treatment is guarded. However, the applicant is only required to establish a potential effectiveness of the proposed treatment not that it will definitely or more than likely result in a positive outcome. For these reasons, and the reasons discussed above, I am satisfied that the applicant has met this standard.

Acceptance by medical experts

The proposed surgery is a fairly routinely performed procedure. I do not accept that because the balance of medical opinion does not support surgical intervention that the proposed surgery is not reasonably necessary or not accepted by medical experts as likely to be effective.
The medical opinions must be read in context and against the timeline of events. Dr Cherukuri initially recommended surgery in 2019 and 2020 due to no change in symptoms with conservative measures and evidence of radicular complaint confirmed on electrophysiological studies. Dr Gray did not support surgery in 2020 because he was of the view that there was no radiological evidence of significant neural impingement. In July 2023, Dr Cherukuri altered his earlier view on surgery and said nothing surgical could be offered because the nerve conduction studies did not reveal significant lumbar radicular pathology. It is clear that these latter opinions have been founded on the basis of an absence of any significant neural compression. However, since those opinions were provided a considerable amount of time has passed during which the applicant underwent extensive conservative treatment and continues to have persistent disabling and radicular pain.
In the recent 2023 and 2024 MRIs there is evidence of L4/5 disc annular tear and bulging and L4 nerve irritation. Relying on those recent investigations, Dr Ow-Yang recommended surgery as the only treatment option for the chronic mechanical lumbar spine pain. Dr Ow-Yang’s opinion for surgery is accepted by Dr Nair, and the only other recent opinion is Associate Professor Miniter. For the reasons discussed above, Associate Professor Miniter’s evidence cannot be accepted. I prefer Dr Ow-Yang’s opinion, supported by Dr Nair, over the other available medical opinions. While Dr Ow-Yang’s opinion that the proposed surgery would likely provide a 50% chance of success, I am satisfied for the reasons discussed above that this does not mean the surgery would not be effective.

CONCLUSION

It is not necessary for each of the factors in Diab to be satisfied in order for a worker to establish that treatment is reasonably necessary pursuant to s 60 of the 1987 Act. Indeed, the likely effectiveness of treatment is not determinative. Similarly, a 50% chance of a successful outcome does not necessarily equate to a finding that proposed treatment is not reasonably necessary in circumstances where the evidence indicates that it is the only modality to effectively address the symptomatology. Each case must be determined on its facts.
I am satisfied that the applicant has discharged her onus of proof on the balance of probabilities that the proposed lumbar spine surgery is reasonably necessary as a result of injury on 18 September 2019, pursuant to s 60 of the 1987 Act.
The respondent is to pay the costs of the proposed surgery recommended by Dr Ow-Yang and any ancillary treatment costs in accordance with the workers compensation gazetted rates.
Accordingly, I make the orders set out above.

[2025] NSWPIC 323

7 July 2025