Compain v Kevin John and Tracey Denise Mumford t/as Kevin Mumford Tree & Timber Service

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Compain v Kevin John and Tracey Denise Mumford t/as Kevin Mumford Tree & Timber Service [2024] NSWPIC 570
APPLICANT:	Richard Compain
RESPONDENT:	Kevin John and Tracey Denise Mumford t/as Kevin Mumford Tree & Timber Service
MEMBER:	Michael Wright
DATE OF DECISION:	15 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for the proposed cost of lumbar spinal surgery; medical opinion considered; Margaroff v Cordon Bleu Cookware Pty Ltd, Diab v NRMA Ltd and Rose v Health Commission (NSW) considered; Held – award for the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. The fusion procedure at L4/5 and L5/S1 with posterior pedicle screw fixation (the surgery) proposed by Dr Coughlan is reasonably necessary as a result of the injury on 30 April 2002. 2. The respondent is to pay pursuant to s 60 of the Workers Compensation Act 1987, the costs of and associated with the surgery.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute, Mr Richard Compain (the applicant) claimed for medical and related expenses, for the cost of surgery recommended by Dr Coughlan, resulting from injury in the course of his employment with Kevin John and Tracey Denise Mumford t/as Kevin Mumford Tree & Timber Service (the respondent) on 30 April 2002.
The respondent by way of dispute notices disputed reasonable necessity of the proposed surgery as a result of injury on 30 April 2002.
At a previous conciliation/arbitration hearing of this matter on 1 May 2024, the parties agreed for a referral to a Medical Assessor for a non-binding general medical dispute opinion in relation to the question of reasonable necessity. Following examination by the Medical Assessor, a Medical Assessment Certificate (MAC) was issued. The MAC will be discussed below.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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

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 and attached documents;
(b)    Reply and attached documents, and
(c)    Medical Assessment Certificate of Medical Assessor Kuru dated 25 July 2024.

Oral evidence

There was no oral evidence.

Applicant’s statement

The applicant provided a statement dated 23 July 2020.
He said that he suffered injury on 30 April 2002 in the course of his employment with the respondent when he was splitting timber on a log splitter and a log spat out of the block splitter hitting him in the groin and throwing him backwards onto a pile of wood, landing on his back. He said he sustained injury to his lower back and a fractured right hip.
He said he was treated by his general practitioner (GP) at the Kincumber Medical Centre. He stated that treatment consisted of treatment by his GP, steroid injections to his spine, physiotherapy and consultation with Dr Coughlan.
The applicant stated that he has developed a limp due to the fractured hip and he is in constant pain in his lower back and right hip. He said gets tingles, and pins and needles down his right leg. He said he has pain in his lower back, and it feels like knives into his back and he falls over due to the pain. He said his right leg gives away on occasions.
He said that he has not slept well due to pain since the accident. He has constant pain in his lower back.

Dr Coughlan

Dr Coughlan, neurosurgeon, provided a number of reports.
In his treating report dated 20 July 2020, Dr Coughlan stated that the applicant had “ongoing back pain, pelvic pain and right leg pain. I note his last imaging was done in 2004 and in this did confirm that at L5/S1, although there was no evidence of disc protrusion, there appeared to be a complex pars interarticularis defect on the right-hand side at L5.”
Dr Coughlan suggested a CT scan of the lumbar spine to assess the L5/S1 region. He stated that “taking into account that his last imaging was done in 2004 it would be worthwhile assessing the pars defect at LS as it is possible that there is some degree of intermittent mechanical compression of the L5 nerve root within the foramen.”
In his report dated 17 June 2019, Dr Coughlan noted he had “reviewed Richard the 13/3/19”. He noted that the applicant has had very significant lower back pain. He noted the applicant “had a previous injury when a log fell on his pelvis and he sustained a pelvic fracture” and subsequently, he had significant chronic hip and low back pain and ultimately, he required right sided inguinal hernia repairs.
Dr Coughlan noted that the applicant was mostly complaining of ongoing axial back pain and also complains of leg pain. He recorded that “despite conservative treatment, he hasn't improved and his quality of life has been significantly impacted on.”
Dr Coughlan considered “recent CT scans,” and he observed that the applicant:
“has foraminal narrowing on the right at L4/5 and L5/S1 but no significant central canal narrowing. He also has a long standing right sided L5 pars defect and on the left side, a stress fracture. On scrutiny of the coronal images, the right sided L5 pars defect is significantly displaced and this potentially could be causing worsening leg pain and back pain."
Dr Coughlan considered that in terms of treatment options, consideration could be given to either percutaneous cortisone as a temporary measure. He doubted that radiofrequency denervation would be of any value given the structural abnormalities.
Dr Coughlan was of the opinion that “in the long term, it is likely that he may require stabilisation at the L5/S1 segment and one would consider doing this via an anterior lumbar interbody spacer at L5/S 1 and or stabilisation with posterior pedicle screws.”
Dr Coughlan stated that:
“if Richard were to contemplate surgery, I would recommend that we arrange a SPECT bone scan, and an MRI scan of the lumbar spine prior to going ahead with this to get as much information as possible and also to assess the adjacent segments, in particular at L4/5 as he does have some facet arthropathy on the right hand side.”
In his report dated 22 August 2019, Dr Coughlan stated “I have reviewed the MRI scan and bone scan for Mr Richard Compain. This confirms my earlier thoughts of L5/S1 being the main pain generator due to the L5 pars & defect & instability at this level.” Dr Coughlan said that he would recommend that the applicant “proceed with the L5/S1 anterior lumbar interbody fusion & posterior pedicle screw fixation.”
At this point in the chronological order of reports, I note that GIO, the workers compensation insurer of the respondent, issued a dispute notice dated 6 September 2019, in which it relied upon the opinion of Dr Breit, and disputed reasonable necessity of the proposed surgery.
In his report dated 11 September 2019, Dr Coughlan stated “I have recommended he have an updated MRI scan looking at his lumbar spine and I will review him once he has had this done. I suspect he may either require stabilisation at L5/S1 and possibly L4/5.”
Dr Coughlan stated in his report dated 30 October 2019 that “his MRI scan and bone scan confirmed my thoughts of L5/S1 being the main pain generator due to the L5 pars defect & instability at this level.”
Dr Coughlan also stated:
“a.     I believe the proposed L5/S1 Anterior Lumbar Interbody Fusion followed by pedicle screw fixation will alleviate Richard's symptoms and provide him with the stability he requires at that level given the pathology.
b.      I do not believe there is an alternative treatment that will provide the same effectiveness and longevity for Richard.
c.      The cost of this treatment is as per attached quote.
d.      The effectiveness of any surgery is individually assessed however I have achieved great results in previous patient's with a similar experience.
e.      This surgery is widely accepted by medical experts as an effective treatment for various spinal conditions.”
In his report dated 26 September 2023, Dr Coughlan stated that he recommended that the applicant undergo a fusion procedure at L4/5 and L5/S1 with posterior pedicle screw fixation “to stabilise that unstable segment and to help him with the pain.”
In response to a question numbered 5, he stated that “considering the mechanism of injury and subsequent symptoms and imaging are closely correlated, I believe the proposed surgery to be reasonably necessary. [There] are no suitable alternative procedures that would adequately address Richard's pathology.”
In the same report under a heading “18.1.24 ADDIT”, Dr Coughlan stated “I disagree with
Dr Breit - as outlined in Q5, the mechanism of injury and subsequent symptoms and imaging are all closely correlated, hence my surgery proposal.” He also said that “regarding
Dr Bodel's opinion - as stated, I agree that Richard requires stabilisation at both L4/5 & L5/S1, hence the recommended surgery.”

Dr Bodel

Dr Bodel, orthopaedic surgeon, provided reports to the applicant’s solicitors dated
25 September 2018, 13 March 2020, 22 December 2020 and 6 January 2021.
In his report dated 25 September 2018, Dr Bodel noted an intake of Oxycontin. He stated that the applicant “needs to have relatively urgent further investigations with a CT scan and/or MRI scan of the lumbar spine, plain x-rays of the pelvis and the right hip to determine the exact cause of the pathological process that requires such high doses of narcotics”.
Dr Bodel noted a lumbosacral CT scan of 7 May 2002 and a CT of 21 November 2002. He noted treatment by Dr Cook, neurosurgeon, in 2003, with injections into the sacroiliac joint and the facet joint on the right hand side, which were done in April 2003 with no lasting benefit.
Dr Bodel noted consultation with Dr Coughlan in 2010, with referral for a CT scan, which showed a large right sided disc prolapse at L4/5.
Dr Bodel was of the opinion there was a disc rupture at L4/5 with right sided radiculopathy. He diagnosed a disc rupture at “L5/S1”, that is a probable disc injury at L5/S1. Dr Bodel was of the view that the applicant sustained a personal injury to his back, not a disease of gradual onset, although he further stated that there was probably a disease process in the back and right hip.
Dr Bodel stated that “it would be prudent for him to be referred back to Dr Coughlan for further advice on treatment which may include decompressive surgery at the lumbosacral junction.”
In his report of 13 March 2020, Dr Bodel noted that on 17 June 2019 Dr Coughlan had reviewed the applicant and had recommended some investigations but was strongly of the view that surgery was needed. Dr Bodel expressed surprise that the initial offering of surgery was limited to L5/S1, when Dr Bodel suspected that two levels were needed at L4/5 and L5/S1.
He was of the opinion that the applicant “probably needs the fusion at the L4/5 level and a fusion at L5/S1 as there are pars defects at L4/5 which would not do well with a disc replacement”.
Dr Bodel also stated that:
“Surgery as proposed is reasonably necessary for the management of the injury that occurred in the incident at work on 30 April 2002. This gentleman has been largely lost to follow up and has become heavily dependent on strong narcotic analgesic medication. Only recently has appropriate investigation been undertaken and Dr Coughlan is of the view that surgery is required. I strongly suspect however that this gentleman will require a fusion at both L4/5 and L5/S1 to fully manage the injury caused by that injury in 2002. This gentleman gives no history of any other accident or injury that I am made aware of in the intervening period that could have led to the need for the surgery.”
He also stated that:
“There is no indication that there would have necessarily been a need for surgery just because of the existence of the pars defects in this circumstance, had it not been for the injury on 30 April 2002. In my view, a very significant disc prolapse occurred at the time of the injury on 30 April 2002 and not just an aggravation of the pars defects.”
In his report of 22 December 2020, Dr Bodel was of the opinion that the main reason why a fusion is appropriate, rather than a disc replacement is that “there are pars defects at the L4/5 level and the disc replacement will not ‘stabilise’ that potentially unstable spinal segment.” He was of the view that “a fusion is the only way that it will be stabilised, and that is the reason that the fusion is preferred.”
In his short report of 6 January 2021, Dr Bodel confirmed that he had seen the MRI lumbar spine report dated 8 August 2019.

Dr Breit

Dr Breit, orthopaedic surgeon, provided a number of reports to the respondent’s solicitors.
In his report dated 4 December 2014, Dr Breit diagnosed lumbar spondylosis with non-verifiable radicular complaints. He noted that no investigations had been produced, although “Dr Shehovych's report from July 2009 indicates that CT scanning from 2002 showed an L4/5 posterocentral disc bulge as well as an inguinal hernia and that a regional bone scan showed a fracture of the right side of the pelvis.”
He stated that “there is a report of a lumbar spine X-ray and CT from 15 December 2004 indicating some vertebral endplate lipping a at L3 and L4, a bulge at L4/5 with degenerative facet joints and at the lumbosacral junction a complex a pars interarticularis defect on the right.”
Dr Breit also noted there was a “5 August 2010 report of a lumbar CT again notes the same sort of findings, particularly with respect to the pars defect which Dr Coughlan, who reviewed him, suggested may be leading to some nerve root irritation.”
He stated that:
“From a musculoskeletal viewpoint, there are non-verifiable radicular complaints and some lumbar spondylosis with a complex pars defect but there is no information as to whether the defect is actually symptomatic or not. At this stage I would have to indicate that it S as a result of the injury.”
In his report dated 9 August 2016, Dr Breit noted that the applicant saw Dr Cook, neurosurgeon, and the applicant had a right L5/S1 and sacroiliac joint injection. He noted there had been no further treatment since the last time he saw the applicant.
Dr Breit noted that no investigations were available. He restated his previous comments in that regard.
Dr Breit was of the opinion that “no physical treatment will benefit this man.” Dr Breit assessed that the applicant had impairment under DRE Category II, as he had both non verifiable radicular complaints and non symmetrical loss of movement, despite “the grossly abnormal illness behaviour”.
In his report dated 30 August 2019, Dr Breit stated that:
“There is now correspondence from Dr Coughlan who describes multilevel pathology yet wants to do a single level fusion. Not only does he want to do a fusion, he wants to do two operations, one from the front and one from the back 24 hours apart.
Dr Coughlan has recommended a bone scan and SPECT CT but seems to have already made up his mind regarding the surgery.
I would consider that without having that bone scan and SPECT CT there should be no decision regarding surgery. It is therefore not reasonably necessary because his proper assessment has not been completed.
Furthermore, in his report Dr Bodel indicates there may be hip pathology which at that point had not been assessed. Information regarding the status of the hip is also required before any decision regarding spinal surgery should be made. There is a common referred pattern and it may be his hip that is contributing a major quantum of his pain, another reason why it is not reasonably necessary.”
Dr Breit also stated that:
“It would also be relevant at the time of a bone scan and SPECT CT for a proper assessment of his sacroiliac joints to be carried out. Given the mechanism of injury and that he had a pelvic fracture he may also have a quantum of sacroiliac dysfunction which may also be part of his pain complex.”
In his report dated 5 September 2019, Dr Breit reviewed the bone scan and SPECT CT dated 8 August 2019, and an MRI lumbar spine dated 8 August 2019. He was of the opinion that “the bone scan and SPECT CT indicates faintly increased uptake in the right L4/5 facet joint and no other areas of increased uptake. This also indicates that the pars defect has not been destabilised or irritated. It also suggests there is very little discovertebral irritation.”
Dr Breit was of the opinion that there was no indication for surgical intervention and the proposed surgery is not reasonably necessary.
In his report dated 22 June 2020, Dr Breit noted that there had been some physiotherapy over the las four years, but it was ceased due to increased pain. There had also been a withdrawal by the GP of narcotic analgesics, replaced by aspirin. He noted Dr Coughlan’s final recommendation was not available. He noted the applicant said he was exhausted because of the pain.
Dr Breit noted the reports of an MRI lumbar spine dated 8 August 2019, and a nuclear medical scan of the same date. His updated diagnosis was “back pain with non-verifiable radicular complaints and quite marked maximisation, which possibly relates to drug-seeking behaviours, given his high consumption of narcotics”.
In his report dated 7 September 2020, Dr Breit noted he was asked to comment on a request for approval for spinal surgery for both anterior interbody fusion and secondary posterior pedicle screw fixation. He noted there was no information provided as to who proposed to undertake the surgery, nor the rationale.
Dr Breit was of the opinion that the proposed surgery was not reasonably necessary.
Dr Breit stated that:
“Although some surgeons choose to do an anterior and then a posterior fusion which doubles the surgical expense, the literature does not support its use. In fact the study by Endler et al indicate that an isolated anterior interbody fusion is likely to have a higher risk of secondary surgery than one of the many posterior procedures. The proposed surgery is not cost effective and that is even more so when one takes into consideration this man's presentation. He appears to be drug habituated and of course surgery would be an excuse for further narcotics. We also know that in the presence of high pre-operative pain associated with high narcotic analgesic intake the results are very poor in what is a group of people in whom the results are generally poor.”
Dr Breit was of the opinion that the applicant’s “presentation and complaints are inconsistent with organic pathology”. He was of the view that there was no prospect of any improvement and the proposed surgery would “almost certainly lead to increased pain behaviours, increased drug use, increased claims of pain and disability”.
Dr Breit attached what appeared to be a summary of the study by Endler, et al, referred to in his report. Also attached was an abstract of another study by Bozzio, et al, which was not identified by Dr Breit in his report.
In his report dated 26 October 2021, Dr Breit noted the supplementary reports of Dr Bodel and a request by Dr Coughlan for approval for surgery and “and stating that it is a recognised procedure for this type of problem but omitting to indicate that the literature also shows the results from this type of surgery to be abysmal.”
Dr Breit stated that “Dr Bodel has not been involved in the treatment of any patients for decades and one would have to question his ability to provide such an expert report.”

He continued:
“The surgery is a standard procedure where there is symptomatic pathology however patient choice is very important. This man has in my opinion demonstrated narcotic habituation, his signs and symptoms are totally inconsistent with the pathology which is minor and as far as I can determine no one has shown that the lumbosacral junction is in fact the site of his pain. The treatment is certainly not cost effective because it will not help it and will only further entrench his invalidism of nearly 20 years standing.”

Dr Shehovych

Dr Shehovych, the applicant’s treating GP at the time, provided reports to GIO dated
2 July 2007 and 6 July 2009. These reports outlined continuing treatment, commencing
April 2002, the applicant’s continuing back pain, chronic pain, sleeplessness, lumbar steroid injection arranged by Dr Cook, and medication. The latter report noted that the back problems were then the issue.

Imaging/scans

Relevant imaging or scans reports included the following:
(a)    7 May 2002 X-ray and CT lumbar spine noted that at the L4/5 level there is a broadly based posterior central disc bulge, and concluded that there were mild degenerative changes within the right L4/5 and L5/S1 facet joints.
(b)    14 May 2002 “Limited Bone scan” concluded that the scan was in keeping “with a recent fracture involving the anterior portion of the right side of the pelvis. The mild abnormalities in the lower lumbar spine are most likely due to arthritis (degenerative or traumatic)”.
(c)    30 May 2002 CT pelvis concluded there was “an old right iliac wing fracture, and probable pars defect at L5/S1”.
(d)    15 January 2003 “MR brain” noted a pars defect at L5 on the right, with marked hypertrophic changes. The report continued “this is causing some foraminal narrowing at L5/S1 on the right. At L4/5, there is a small central disc protrusion…There is minor neural exit foraminal narrowing on the right from facet joint hypertrophic change.” It concluded “pars defect on the right at L5, with hypertrophic changes. I cannot definitely see a pars defect on the left but this may be easier from the plain films. Foraminal narrowing on the right at L5/S1 and, to a lesser extent, L4/5.”
(e)    17 April 2003 right L5/S1 facet and sacro-iliac joint block was reported as “a CT guided injection was performed with the facet block undertaken via needle placement into the adjacent pars defect. The other needle was placed into the lower aspect of the SI joint.”
(f)    15 December 2004 CT scan lumbosacral spine (also an X-ray) noted slight posterior central bulging of the intervertebral disc at L4/5, impinging not compressing the thecal sac and also “moderate to marked degenerative changes within the right L4/5 facet joint” It also noted that L5/S1 there was no evidence of disc bulging or disc protrusion. It also noted “a complex pars interarticularis defect on the right side at the L5 level”. The L5/S1 facet joints appeared to be normal.
(g)    5 August 2010 CT lumbar spine report addressed to Dr Coughlan, found that at L5/S1, “there is a posterolateral disc bulge to the right, displacing the right L5 nerve root in and lateral to the neural exit foramen.” It noted that “there is pars defect on the right with some hypertrophic change… At the other levels, there are some disc and facet joint degenerative changes.” It concluded that “displacement of the right L5 nerve root due to disc material may explain the patient's symptoms.”
(h)    15 October 2012 X-ray lumbosacral spine found “degenerative changes involving the facet joints at L4/5 and L5/S1” and “visualised sacroiliac joints define normally”.
(i)    14 May 2015 CT lumbar spine noted that at L4/5 there was “mild central canal narrowing secondary to diffuse annular bulge and early ligamentum flavum thickening as well as some right sided facet joint change” and “exiting L4 nerve roots do not appear encroached upon”. At L5/S1 it was noted that there was a small annular bulge not indenting thecal sac or S1 nerve root sheaths, no apparent encroachment on the left exiting nerve root sheath. It was also noted that “there is alteration in architecture of the right pars region suggesting partially healed old defect”. The report commented that there were “multilevel disc bulges, but no prominent canal narrowing identified” and “most prominent foraminal narrowing on the right is at L4/5 (moderate).”
(j)    22 February 2017 CT lumbar spine found “grade 1 retrolisthesis at L3/4, with less than 3mm displacement. Grade 1 degenerative anterolisthesis is present at L5/S1, due to a combination facet joint arthropathy and pars defect”. It also noted that at L4/5 “the annulus shows moderate circumferential bulge, contributing to the lateral recess soft issue encroachment and potential impingement on the L5 nerve roots.” It also noted “there is no significant central canal or right foraminal bony stenosis, but the disc encroaches on the left foramen, with potential impingement on the L4 nerve root in some positions.” The report noted that at L5/S1 the annulus showed broad bulge but no focal herniation and encroachment on both foramina without frank neural compression and “a right-side pars defect and left-side stress reaction are present, and there is also a low-grade right-side facet joint arthropathy”. The report commented:
·“There are no significant new features by comparison with the previous examination.
·The right L4/5 and L5/S1 foramina both show encroachment, with potential impingement on the L4 and L5 nerve roots.
·There is also encroachment on the left L4/5 foramen, but the other left-side foramina are generally intact.
·No significant central canal stenosis is present, but there is lateral recess encroachment at L4/5, with potential impingement on the L5 nerve roots.
·There has been no change in the appearance of an established right-side L5 pars defect and left-side stress reaction. Malalignment at L3/4 and L5/S1 is unchanged.”
(k)    8 August 2019 bone scan of the lumbar spine addressed to Dr Coughlan, found “delayed images counting from the lowest formed disc space show: Faintly increased uptake in the right facet joint at L4/5. Uptake in the left facet joint at this level appears within the range of normal.” Uptake in the sacroiliac joint was reported as apparently normal. The report commented that there was faintly increased uptake in the right facet at L4/5.
(l)    8 August 2019 MRI lumbar spine addressed to Dr Coughlan, noted the previous CT lumbar spine of 22 February 2017, and found right sided L5 pars defects were evident without any listhesis and disc desiccation evident at all lumbar levels with loss of normal signal but disc heights were maintained. At L4/5 it was noted that there was a “posterior disc bulge with a shallow posterocentral focal disc protrusion causing mild thecal sac compression. Bilateral mild facet joint changes.” At L5/S1 it was noted there was no focal disc protrusion, canal or foraminal stenosis, and bilateral facet arthropathy was seen. The report commented as follows:
·“Mild lumbar spondylotic changes.
·No focal disc protrusion or canal stenosis is seen.
·Lower lumbar facet arthropathy is evident, at L4/5 and L5/S1.
·Mild foraminal encroachment is evident at these levels without definite neural compromise.”

Medical Assessment Certificate

Medical Assessor Kuru issued a Medical Assessment Certificate (MAC) which was not correctly dated, but which I take to be 25 July 2024.
Under the heading “Present treatment”, Medical Assessor Kuru noted that “Mr Compain takes paracetamol, which he says is of no benefit. He has not been engaged in an exercise based rehabilitation program for his spine. Mr Compain tells me he has had some steroid injections into his back, which have not been helpful.”
There was no other past treatment recorded in the MAC, other than initial treatment after the injury by his GP and at the Gosford Hospital, and a bone scan of May 2002 noting the iliac wing fracture, and a record of current medication.
Under the heading “Details and dates of special investigations”, Medical Assessor Kuru recorded:
“Mr Compain brought no imaging with him but I was able to access the following imaging on the PRP PACS site:
…”
Under the heading “Summary of injuries and diagnoses”, Medical Assessor Kuru stated that “Mr Compain sustained an injury at work. It appears he has sustained an iliac wing fracture. He subsequently had longstanding back pain. Imaging has not demonstrated significant pathology to account for this.”
Under the heading “My opinion and assessment”, Medical Assessor Kuru was of the opinion that the surgery recommended by Dr Coughlan was not reasonably necessary as a result of the injury on 30 April 2002. He stated that:
“From the imaging available, Mr Compain does not demonstrate a significant structural pathology in the spine to account for Mr Compain's pain. Furthermore, it certainly does not demonstrate a pathology that surgical intervention has any likelihood of improving. As a practicing spinal surgeon, I am unable to agree that any form of surgical intervention is available in this case, let alone the extensive intervention as proposed by Dr Coughlan.”
Medical Assessor Kuru provided comments on correspondence and opinion of Dr Coughlan.
Medical Assessor Kuru stated that “in his clinical letter dated 20 July 2020, he notes previous imaging demonstrating a right sided pars defect. This imaging demonstrates that the pars defect has healed.” The date noted appears to be incorrect. I understand this to be a reference to the report dated 20 July 2010.
In respect of Dr Coughlan’s report dated 17 June 2019, Medical Assessor Kuru commented that “the imaging does not demonstrate significant foraminal stenosis. There is no displacement across the pars fracture.”
Medical Assessor Kuru commented on Dr Coughlan’s report of 27 August 2019, stating that “there is no evidence of instability and as above, the pars defect is clearly united on imaging.”
Medical Assessor Kuru provided comments on correspondence and opinion of Dr Bodel.
In respect of Dr Bodel’s diagnosis of L4/5 disc prolapse in his report of 25 September 2018, Medical Assessor Kuru stated that “this is an absolute misinterpretation of the CT findings. There is no evidence of disc prolapse on this imaging.”
Medical Assessor Kuru observed that Dr Bodel “on 13 March 2020,…seems to consider two level surgery for reasons which are difficult to understand.”
In respect of Dr Bodel’s report of 22 December 2020, Medical Assessor Kuru stated that “for some reason he considers an L4/5 arthroplasty but recommends against this on the basis of it being a ‘unstable segment’. Again, there is no evidence of instability either at L4/5 or L5/S1.”
Medical Assessor Kuru also noted the reports of Dr Breit “specifically 5 September 2019 and 7 September 2020 where he strongly does not recommend surgical treatment.”
Medical Assessor Kuru stated that:
“Accepting that different surgeons have different thresholds to proceed with interventional treatment, as above, I am unable to support proceeding with surgical intervention in this case and indeed, have significant concerns that surgery has been recommended. I have further concerns, that an opinion has been obtained from an IME with limited experience and currency in the subspecialty area, also supporting the treatment. To preserve the integrity of the process, it is essential that independent opinions are sought from practitioners with appropriate training and experience, particularly in subspecialty fields.”

Reasons

There was no dispute as to injury.
A preliminary issue is the challenge to the qualifications or expertise of Dr Bodel to provide an opinion in this matter. That challenge was in effect made by Medical Assessor Kuru and Dr Breit. This was also echoed in submissions by the respondent. I have no doubt that Medical Assessor Kuru was referring to Dr Bodel in the paragraph quoted above.
I note that the challenge was not to Dr Bodel’s qualifications as an orthopaedic surgeon, rather it was based upon experience and currency in “a subspecialty area”, as expressed by Medical Assessor Kuru, and, in a similar fashion, by Dr Breit.
It is convenient to note at this point provisions in this regard:
(a)    The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.[1]
(b)    The question of acceptability of expert evidence will not be one of admissibility but of weight.[2]
(c)    A guiding principle in proceedings in the Commission is that unqualified opinions are unacceptable.[3] This is not elaborated upon in the Rules, although in my view it is a matter for consideration on a case by case basis. There was no assertion in this case that Dr Bodel’s opinion was unqualified.
(d)    An expert’s duties to the Commission, and the matters to be addressed in a report, are set out in Procedural Direction 4 of the Commission.[4] In particular, details of the expert’s qualifications to prepare the report are to be included in the report.[5] However, it is often the case in the Commission that this requirement is met in somewhat shorthand form, with a statement of specialty, such as orthopaedic surgeon or neurosurgeon, together with brief description of qualifications. It was no different in this case. This in my view is sufficient to establish expertise of the medical practitioners identified above in this case.
(e)    Part 7 of the Workers Compensation Guidelines[6] (the Guidelines) deal with independent medical examinations (IME) and reports. It is not clear if Medical Assessor Kuru was referring to an independent medical examiner in this context. Part 7 in my view is dealing with an IME referred at the request of an insurer only. The Guidelines are not binding or determinative in my consideration in this matter, nor is part 7.2 binding on the applicant.
(f)    In any event, part 7.2 of the Guidelines outlines matters in relation to “qualified and appropriate independent medical examiners”, including where the referral includes a question of causation or treatment, “the independent medical examiner is to be in current clinical practice or have recently been in clinical practice, or undertake professional activities such that they are well abreast of current clinical practice”.
[1] Personal Injury Commission Act 2020, s 43(2).
[2] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 [83].
[3] Personal injury Commission Rules 2021 (the Rules), r 73(d).
[4] Procedural Direction PIC4 – Expert Witness Evidence (PD 4).
[5] PD 4, cl 11(c).
[6] Issued by the State Insurance Regulatory Authority, 1 March 2021.
In respect of the MAC of Medical Assessor Kuru, he did not explain what led to his conclusion, or assertion, that the experience and currency of Dr Bodel was limited. It is not persuasive, in my view, to make such an assertion without more.
Medical Assessor Kuru did not explain precisely what was the subspecialty which was said to be preferred. He had described himself as a practising spinal surgeon, yet this description was not made with respect to a subspecialty. Even if it were, it was not explained in a case such as this, where there are opinions from a neurosurgeon and orthopaedic surgeons, as to the content of such a subspecialty.
The observations of Dr Breit in this regard were on the basis of his assertion that Dr Bodel had not been involved “in the treatment of any patients for decades”. Even if this were the case, and there is no probative evidence before me that this is the case, it was not explained how a qualified orthopaedic surgeon did not have the ability to provide an expert report in this matter.
It might be said that the arguments put forward by Dr Breit and Medical Assessor Kuru went to the weight to be given to the opinion of Dr Bodel. However, both Dr Breit and Medical Assessor Kuru went further than a weight argument. Dr Breit questioned Dr Bodel’s ability to provide such an expert report, and Medical Assessor Kuru asserted a subspecialty argument as noted above.
In the context of Dr Breit conducting an “IME” arranged by or on behalf of an insurer, and Medical Assessor Kuru also expressly referring to an “IME”, presumably both would or should be aware of Part 7.2 of the Workcover Guidelines quoted above, where Dr Bodel’s qualifications to provide an expert opinion were questioned. As I have noted, the Workcover Guidelines are not binding in my consideration of expert medical opinion, although Part 7.2 does point to matters for consideration in arranging an IME, which in my view are not necessarily exhaustive. There was no discussion by Dr Breit or Medical Assessor Kuru of any evidence, for example, of professional activities of Dr Bodel in relation to clinical practice, in arriving at the observations or conclusions they gave.
I reject the arguments put by Dr Breit and Medical Assessor Kuru, and the submissions of the respondent in this regard. There is no probative evidence before me contraindicating a prima facie, and therefore conclusive, view that a qualified orthopaedic surgeon such as
Dr Bodel may provide an expert opinion as to the matter for consideration.
Returning to the MAC, Medical Assessor Kuru noted that he had accessed “imaging” on the “PRP PACS site”. Presumably this site relates to the investigations he listed, which were headed “PRP Diagnostic Imaging”, although there is no evidence before me as to these entities, if that is what they are, and no evidence as to what a “PACS site” is, although this may be common knowledge among those who seek to consider such imaging online.
There was also no evidence before me of the nature and level of access given to Medical Assessor Kuru for the imaging he considered. For example, it appears that Medical Assessor Kuru reviewed the listed images themselves, but there is no mention in the MAC about the related radiology reports, other than the bone scan of 8 August 2019, and whether they were considered.
The radiology reports in respect of the imaging listed by Medical Assessor Kuru, which I have summarised above, were signed by medical practitioners reporting in an imaging or radiology practice. Of course, Medical Assessor Kuru is entitled to his professional opinion as to the interpretation of such imaging.
However, where this opinion is in an area of controversy as to the interpretation of such imaging, a consideration of the professional medical reporting of that imaging may well have been helpful. Whilst it is acknowledged that a Medical Assessor need not refer to every piece of evidence or document in reaching their opinion, it is necessary in my view to expressly consider such evidence, which was provided to the Medical Assessor in the Application and in the Reply, to establish the path of reasoning in respect of an area of disagreement, controversy or criticism, as was the case here. This was not done.
It was noted in the MAC that there was an “absolute misinterpretation” of “the CT findings” in diagnosing L4/5 disc prolapse by Dr Bodel in his report of 25 September 2018. It is unclear as to what were the CT findings to which Medical Assessor Kuru referred, whether one, or more, or all of the CT scans prior to September 2018, or possibly later.
From the summary above, there were seven related CT scans, or at least reports of such scans, and a related MRI, prior to September 2018. In addition to the scans listed in the MAC, Medical Assessor Kuru noted in the history an X-ray and bone scan in May 2002, although the former was incorrectly referred to as “2022”, in relation to an iliac wing fracture.
Medical Assessor Kuru, in referring to Dr Bodel’s report of 13 March 2020, said that
Dr Bodel’s reasons for his consideration of two level surgery were difficult to understand. Medical Assessor Kuru did not identify the reasons of Dr Bodel or say why they were difficult to understand.

In considering Dr Bodel’s report of 22 December 2020, Medical Assessor Kuru stated there was no evidence of instability at L4/5 or L5/S1. My comments above, from paragraph 92, apply. In the table from the MAC reproduced above, the comments provided by Medical Assessor Kuru were brief statements of his conclusions as to interpretation. In other circumstances this may have been sufficient, but in these circumstances where there is controversy surrounding interpretation, and significant scan reporting, it was less than persuasive for there to be bare statements of conclusions without more.
For example, the CT of 5 August 2010 was interpreted by Medical Assessor Kuru as “minor L4/5 degenerative disc disease, healed right sided L5/S1 pars defect”, whereas the report of the same CT made the findings noted above and concluded “displacement of the right L5 nerve root due to disc material may explain the patient's symptoms”. Given the matters above, I do not prefer the MAC in this regard.
In relation to Dr Coughlan, Medical Assessor Kuru was of the opinion that from the imaging there was no demonstrated “significant” foraminal stenosis; no displacement across the pars fracture; no evidence of instability; the pars defect had healed and was clearly united on imaging. Again, paragraph 91 and following apply, and I do not prefer the MAC in this regard.
Further, Medical Assessor Kuru, in not supporting the recommendation for surgery, said that he had significant concerns that surgery had been recommended. He did not say what those concerns were.
I do not prefer the opinion of Medical Assessor Kuru.
Turning then to the opinion of Dr Breit, in his 2014 report he noted the CT scan report of
5 August 2010, as I have summarised above. However, the summary by Dr Breit was in general terms, and he did not note that the CT scan report’s conclusion that displacement of the right L5 nerve root due to disc material may explain the symptoms. In that report, Dr Breit observed there was no information whether the pars defect was actually symptomatic or not. However, Dr Coughlan in his 20 July 2010 report, which was referred to indirectly by Dr Breit, did point to the possibility of intermittent mechanical compression of the L5 nerve root, and the need for further investigation.
In his report of 30 August 2019, Dr Breit observed that Dr Coughlan in his recent recommendation had appeared to make up his mind before the further investigations had been conducted. In my view the approach taken by Dr Coughlan, was different to that characterised by Dr Breit. Dr Coughlan’s report and request for approval dated 17 June 2019 made it clear that the investigations were to be done in contemplation of surgery, to obtain as much information as possible, and to assess the adjacent segments.
Dr Breit in his report of 5 September 2019 reviewed the MRI and bone scan, with SPECT CT, of 8 August 2019, and on the basis of that review, opined that the proposed surgery was not reasonably necessary, there being “no evidence on MRI” as to irritation in the relevant area, and similarly the bone scan indicated the pars defect had not been destabilised or irritated. I note that Dr Breit did not refer to mechanism of injury to the back and the applicant’s symptoms, which have been longstanding since 2002, in his reports prior to and including 5 September 2019, in which he rejected the need for surgery based solely on his view of the MRI and bone scan of 8 August 2019.
It is the case that Dr Breit in his subsequent report of 7 September 2020 did refer to the applicant’s presentation, questioned in previous reports by Dr Breit, and his perceived “drug habituation”. However, this view was expressed in the context of Dr Breit’s opinion of the lack of cost effectiveness of the proposed surgery, as distinct from the interpretive approach taken by Dr Coughlan, that is considering the imaging in terms of correlation with mechanism of injury and symptoms.
The submissions of the respondent in summary dealt with the interpretation of the MRI and bone scan of 8 August 2019. In general, the respondent’s submissions were that the views of Dr Breit and Medical Assessor Kuru were that there was no pathology that required the proposed surgery, and also that the opinions provided by the applicant, particularly
Dr Coughlan, did not adequately explain those opinions with respect to the pathology and the views of Dr Breit and Medical Assessor Kuru, and also that the opinion of Dr Coughlan is based upon the last recorded consultation in 2019, with no update as to current circumstances.
I have not preferred the opinion of Medical Assessor Kuru.
I do not prefer the opinion of Dr Breit in respect of his view of the MRI and bone scan of August 2019, for the reasons given above.
In my view, Dr Coughlan provided sufficient explanation of his view of the imaging, including the MRI and bone scan of August 2019. The respondent questioned a lack of signature of his reports. In my view, Dr Coughlan had issued and adopted those reports, as they were provided under his letterhead and marked “dictated but not signed by” Dr Coughlan. This is sufficient in my view to give probative value to his reports.
There was also an issue taken by the respondent that the report of 11 September 2019, as referring to a review date of “today, 13/3/19”. Adding to the apparent lack of clarity was an expression by Dr Coughlan that he had recommended an updated MRI of the lumbar spine. On the one hand, it may be that the word “today” meant the review was on
11 September 2019, implying that Dr Coughlan had not reviewed the MRI and bone scan of August 2019 and that he was awaiting the update for MRI for further review, which the respondent said did not happen. On the other, it may be that the report’s date of
11 September 2019 was incorrect and that the report was in respect of a review on
13 March 2019.
However, the preceding report of 22 August 2019 was unequivocal. It stated that
Dr Coughlan had reviewed the MRI and bone scan. He did not state the dates of that imaging, but the context was that this report was provided two weeks after the MRI and bone scan of 8 August 2019. In my view, Dr Coughlan in that report was referring to the MRI and bone scan of August 2019.
In my view, the report of 22 August 2019 is important context for considering the weight to be given to that report and the report dated 11 September 2019. It seems to me there is an error in the report of 11 September 2019 in respect of dates, and that report does not reduce the weight to be given to the report of 22 August 2019. This is in my view supported by
Dr Coughlan’s report of 30 October 2019, in which he again referred to the MRI and bone scan, without referring to the date, in the same terms as his report of 22 August 2019.
Dr Coughlan’s report of 26 September 2023, that is the amended report noted above, in my view directly dealt with the Dr Breit’s opinion as to what was shown on the MRI and bone scan of August 2019. Dr Coughlan disagreed, having regard to “the mechanism of injury and subsequent symptoms and imaging” which “are all closely correlated”.
Further, Dr Coughlan also agreed with Dr Bodel that “Richard requires stabilisation at both L4/5 & L5/S1, hence the recommended surgery”. This was not only an expression of agreement, it was also a reference back to the original reasons for referral for the MRI and scan, as set out in his report of 17 June 2019, which included an assessment of the adjacent segments.
The respondent in initial submissions pointed to an absence of opinion from Dr Coughlan for five years, which in later submissions was corrected to acknowledge his report of
26 September 2023. The respondent also noted the apparent last consultation with
Dr Coughlan was in 2019, whether it was March or September. I understand these submissions to be to the effect that less weight should be given to his opinion, given the substantial intervening period.
I do not accept these submissions. There was no probative evidence before me of any change in the applicant’s condition in the period since, or any other circumstance, other than the bare passage of time, which would indicate further update was required. Indeed,
Dr Breit’s examination reports did not indicate any change. His examination reports commenced in 2014, where there was no suggestion of any reduction of reported symptoms since 2002; then on 9 August 2016, which other than a description of “grossly abnormal illness behaviour” did not record reported reduction of symptoms; followed by 22 June 2020 in which he noted “not a lot has changed”.
Although Dr Breit characterised the applicant’s presentation in terms of inconsistency and grossly abnormal illness behaviour, there was no such characterisation from Dr Coughlan, neurosurgeon “specialising in minimally invasive spinal surgery, complex spinal surgery and arthroplasty”, and Dr Bodel, a qualified orthopaedic surgeon. Both the latter specialist medical practitioners did not query the applicant’s presentation in this manner. There was, correctly in my view, no challenge in submissions to the applicant’s consistency in presentation, and no suggestion that there had been any change in the applicant’s condition or circumstances. I do not accept Dr Breit’s characterisation.
Dr Breit also referred to the applicant’s “narcotic habituation”.
The respondent submitted that the opinion of Dr Coughlan should not be preferred because his opinion was not expressed strongly, contrary to Dr Bodel’s characterisation of it as strong.
In my view, while the word “may” was used in Dr Coughlan’s surgery recommendation of
17 June 2019, his subsequent reports of 22 August 2019, 11 September 2019,
30 October 2019 and 26 September 2023 were clear recommendations.
The initial recommendation of 17 June 2019 was for stabilisation at the L5/S1 segment by an anterior lumbar interbody spacer and/or stabilisation with posterior pedicle screws.
As noted above, following investigation of the adjacent segments, on 22 August 2019
Dr Coughlan recommended L5/S1 anterior lumbar interbody fusion and posterior screw fixation.
On 26 September 2023, Dr Coughlan recommended fusion at L4/5 and L5/S1 with posterior screw fixation. In doing so, he agreed with Dr Bodel’s opinion that the applicant requires stabilisation at both L4/5 and L5/S1.
Dr Bodel in his reports from 13 March 2020 strongly suspected that the applicant would require fusion at both L4/5 and L5/S1 to fully manage the injury caused by the injury in 2002. Dr Bodel was of the view in 2018 that there was a prolapse or rupture at the L5/S1 level (initially referred to as L4/5 in that report, but then correctly referring to L5/S1 under the heading “Present diagnosis”, having regard to the CT scan report of 5 August 2010) caused by the subject injury.
In his report of 13 March 2020, Dr Bodel was of the view that the applicant would also need the fusion at L4/5 as pars defects at L4/5 would not do well with a disc replacement.
As noted above, Dr Bodel’s view was agreed with and accepted by Dr Coughlan, the treating neurosurgeon specialising in spinal surgery and arthroplasty. I accept the opinion and reports of Dr Bodel.
The respondent made submissions on the basis of matters for consideration having regard to the decision of Diab v NRMA Ltd[7] (Diab), which in turn referred to the authorities, particularly the decision in Rose v Health Commission (NSW)[8] (Rose). The respondent relied on
[7] [2014] NSWWCCPD 72.
[8] (1986) 2 NSWCCR 32.
Dr Breit’s opinion, as well as the argument that there was nothing from the treating surgeon to counter what was put by the respondent.
I note that the decision in Diab also referred to the authority of Margaroff v Cordon Bleu Cookware Pty Ltd (Margaroff),[9] in which Campbell CJ observed that the topics in Rose were “useful heads for consideration, although the essential question remains whether the treatment was reasonably necessary”.[10] Campbell CJ did not say that these heads of consideration were prescriptive or exhaustive. In my view, the topics referred to in Diab and in Rose, are useful, but not necessarily determinative of the essential question of whether the proposed treatment is reasonably necessary.
[9] (1997) 15 NSWCCR 204.
[10] Margaroff at 207.
Dr Breit in his reports of 7 September 2020 and 26 October 2021 outlined his reasons for his opinion that the proposed surgery was not reasonably necessary. He was of the view that the applicant’s presentation and complaints were inconsistent with organic pathology. I have dealt with the pathology argument above. I do not accept this argument here.
Dr Breit also opined that “the literature does not support” the proposed surgery. He also relied upon the study noted above to argue there was likely be a higher risk of secondary surgery than one of the many posterior procedures. Dr Breit did not identify “the literature”, other than the study he noted. In any event, in my view a scientific study is not expressed with respect to the applicant in the circumstances of this case. Indeed, Dr Breit also appeared to concede that some surgeons choose to do an anterior and then a posterior fusion, although doubling the surgical expense.
Dr Breit thought the proposed surgery is not cost effective considering the applicant’s presentation with respect to drug habituation, and “of course surgery would be an excuse for further narcotics”. A history of narcotic analgesic use and dependency was noted by Dr Breit and by Dr Bodel. However, the proposition that the surgery would be such an excuse is in my view speculative. It would be a matter for medical assessment following surgery as to the treatment or medication that may be recommended. Dr Bodel regarded the proposed surgery as being reasonably necessary, having noted that history.
The same considerations apply to Dr Breit’s view that the proposed surgery would “almost certainly lead to increased pain behaviours, increased drug use, increased claims of pain and disability”.
I do not prefer the view of Dr Breit in this regard.
Dr Coughlan recommended the proposed surgery to stabilise the unstable segment and to help the applicant with the pain. This was the ongoing back pain that Dr Coughlan noted in 2010 and 2019, that is ongoing back pain since the injury of 30 April 2002.
Dr Coughlan in his report of 17 June 2019 considered alternative treatment options of percutaneous cortisone as a temporary measure, and he doubted radiofrequency denervation would be of any value given the structural abnormalities. I note that there was no suggestion of alternative treatment options made by Dr Breit or by Medical Assessor Kuru.
Dr Coughlan in his report of 30 October 2019, also outlined his reasons for his recommendation at paragraph 2 of that report, as set out above. Dr Coughlan in my view sufficiently and persuasively dealt with the “useful heads of consideration” referred to in Margaroff.
In my view, Dr Coughlan has provided the basis for concluding that the proposed surgery is reasonably necessary. Although it might be said that his reports noted above, that is to
30 October 2019, were in respect of fusion at L5/S1, his agreement with Dr Bodel in the amended report of 26 September 2023, and his recommendation in the same report, was for the same reasons that he had previously given, that is to stabilise the unstable segment and to help the applicant with the pain. I accept the reasoning and opinion of Dr Coughlan.
Dr Bodel’s opinion was not expressed in terms of a checklist, or in terms of “useful heads of consideration”. However, in my view, his opinion does address, or assist in considering, the essential question of whether the proposed surgery is reasonably necessary.
Against the background of history and continuing pain recorded in his report of
25 September 2018, Dr Bodel in his report of 13 March 2020 noted the applicant had been “largely lost to follow up” and had become heavily dependent on narcotic analgesic medication. He noted Dr Breit’s assessment of permanent impairment in spite of Dr Breit’s description of “grossly abnormal illness behaviour”. In Dr Bodel’s view the proposed surgery was reasonably necessary for the management of the injury that occurred in the incident at work on 30 April 2002.
This management of the injury was not dissimilar to that expressed by Dr Coughlan, that is stabilisation of the potentially unstable spinal segment, against the background of pain, narcotic analgesic use and “being lost to follow up” over the years.
As noted above, Dr Coughlan accepted and agreed with the opinion of Dr Bodel. In these circumstances, I accept the opinion of Dr Bodel.
I find the surgery proposed by Dr Coughlan is reasonably necessary as a result of the injury on 30 April 2002.
The Application at page 8 described the claim as “L5/S1 Anterior Lumbar Interbody Fusion procedure and secondary procedure in the form of a posterior pedicle screw fixation (refer to fee estimate by Dr Marc Coughlan dated 17 June 2019)”. However, Dr Coughlan in his amended report of 26 September 2023 referred to the proposed surgery as “a fusion procedure at L4/5 & L5/S1 with posterior pedicle screw fixation”. The latter recommendation was referred to in the applicant’s submissions, having earlier noted the original recommendation for surgery.
The respondent is to pay for the costs of and associated with the fusion procedure at L4/5 and L5/S1 with posterior pedicle screw fixation.

[2024] NSWPIC 570

15 October 2024