Conte v Farsaci Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Conte v Farsaci Pty Ltd [2025] NSWPIC 50
APPLICANT:	Chelsea Licia Conte
RESPONDENT:	Farsaci Pty Limited
MEMBER:	Anne Gracie
DATE OF DECISION:	18 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for section 60 expenses; surgery to lumbar spine; consideration of applicant’s statements, medical reports and other treatment records, and claim correspondence; consideration of whether the lumbar spine surgery treatment was reasonably necessary; Diab v NRMA Limited, and Rose v Health Commission (NSW) considered; Held – the claimed lumbar surgery is reasonably necessary pursuant to section 60.
DETERMINATIONS MADE:	The Commission determines: 1. The surgery proposed for the applicant by Dr Huang (L4/L5 total disc replacement and L5/S1 lumbar interbody fusion) as referred to in his report dated 15 May 2024, is reasonably necessary medical treatment as a result of the injury to the applicant on 14 December 2018. The Commission orders: 2. The respondent is to pay for the costs of and incidental to the surgery (L4/L5 total disc replacement and L5/S1 lumbar interbody fusion) proposed for the applicant by Dr Huang in his report dated 15 May 2024, pursuant to s 60 of the Workers Compensation Act 1987. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Chelsea Licia Conte (the applicant) is 33 years old. She was employed by Farsaci Pty Limited (the respondent) as a barista/manager when an accident occurred on
14 December 2018. On that day, the applicant tripped and fell when she was returning from collecting the office mail. The applicant sustained numerous injuries including an injury to the lumbar spine. Liability for the injury to the lumbar spine has been accepted by the respondent. The applicant has not worked since the accident.
The applicant’s treating neurosurgeon Dr Huang has recommended to her that she undergo an L4/L5 total disc replacement and L5/S1 lumbar interbody fusion.
However, the respondent has issued a notice denying liability for the cost of the surgical procedure dated 8 August 2023 pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
By way of an application to resolve a dispute (ARD) filed with the Personal Injury Commission (the Commission), the applicant requests an order that the respondent pay for the costs of and incidental to the surgery proposed by Dr Huang in accordance with s 60 of the Workers Compensation Act 1987 (the 1987 Act).

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) Whether the surgery proposed by Dr Huang, an L4/L5 total disc replacement and L5/S1 lumbar interbody fusion in his report dated 15 May 2024 is reasonably necessary.

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.
A preliminary conference was held on 14 January 2025. At that time, the matter did not resolve. Certain directions were made in relation to the evidence and the matter was set down for a conciliation/arbitration hearing by MS Teams on 13 February 2025.
On 13 February 2025, the applicant was represented by Mr Gaitanis of counsel instructed by Mr Collison from K Q Lawyers. The respondent was represented by Mr Stiles instructed by Ms Whiting from Lee Legal. The applicant was present. Ms Abi O attended on behalf of the workers compensation insurer, EML. The conciliation phase of the matter on
13 February 2025 did not result in a resolution of the matter and the matter proceeded to arbitration.
The applicant had filed two applications to lodge additional documents (ALAD) with the Commission following the preliminary conference. The respondent did not object to the ALAD filed by the applicant on 29 January 2025 and I was satisfied that the documents annexed to the ALAD were relevant to the dispute and I admitted that document and the annexures into evidence. The respondent objected to the ALAD filed by the respondent on 4 February 2025. The ALAD annexed a short further supplementary statement of the applicant dated
3 February 2025 which specifically dealt with the applicant’s attendance and participation in pain management programs.
Counsel made submissions in relation to the admissibility of the statement dated 3 February 2025 which have been recorded. Following submissions, I determined that the ALAD and the further supplementary statement of the applicant dated 3 February 2025 be admitted into the proceedings and provided short reasons which were recorded.
The issue in relation to the applicant’s participation in a pain management program had been discussed at the preliminary conference and Direction 3 made during the preliminary conference stated: “The respondent is to investigate whether any reports were produced and provided to the respondent from the pain management programme”.
Following the preliminary conference, no ALAD was filed by the respondent annexing any reports or information in relation to the pain management program. The s 78 notice dated
8 August 2023 also referred to the pain management program recommended by Dr Richmond. The s 78 notice records that the pain management program recommended by Dr Richmond did not go ahead as Dr Richmond advised the insurer that the applicant did not wish to participate in the recommended program. The further supplementary statement of the applicant dated 3 February 2025 addressed this aspect of the s 78 notice. I do not believe the respondent has been prejudiced as a result of admitting the further supplementary statement into evidence. The further supplementary statement is relevant to the issue that I have to decide. The applicant’s counsel advised that he would have no objection if the respondent’s counsel wished to cross examine the applicant on the contents of the further supplementary statement. The respondent made no such application.
The inclusion of the further supplementary statement is necessary as it facilitates the just, quick and cost-effective resolution of one of the issues in the proceedings. The further supplementary statement addressed the information in the s 78 notice concerning the pain management program recommended by Dr Richmond. For these reasons, and the reasons recorded on the transcript, the further supplementary statement of the applicant dated
3 February 2025 was admitted into evidence.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    application to resolve a dispute and attached documents;
(b)    reply and attached documents;
(c)    the applicant’s application to lodge additional documents and annexures filed
29 January 2025 admitted by consent, and
(d)    the applicant’s application to lodge additional documents and annexure filed 4 February 2025 admitted over objection by the respondent.

Oral evidence

There was no oral evidence called at the arbitration hearing. Both counsel made oral submissions that were sound recorded and a copy of the recording is available to the parties.

Applicant’s evidence

The applicant has provided a statement dated 1 November 2024 (page 1 of the ARD) and two further statements dated 28 January 2025 (page 1 of the ALAD filed on 29 January 2025) and 3 February 2025 (page 1 of the ALAD filed on 4 February 2025).
The applicant provides a detailed chronology of the treatment she has undergone for her lower back since the accident including steroid injections, L4/5 nucleoplasty surgery in May 2021 and L5-S1 nucleoplasty surgery in August 2021, specialist referrals to an orthopaedic surgeon, a neurosurgeon, a psychiatrist and two pain management specialists. The applicant has undergone a sleeve gastrectomy in July 2021 to assist in addressing post-accident weight gain. The applicant has undergone physiotherapy and other alternative treatments on a regular basis since the accident. The applicant is currently taking significant medication for the purpose of pain relief and associated problems (see Annexure A on page 3 of the ALAD dated 28 January 2025). The applicant has consulted with Dr Nazha and Dr Richmond, pain management specialists, and has completed a chronic pain management course on
29 March 2023. The applicant has also undergone numerous radiological studies including a CT scan, MRI scans, a bone scan and a discogram which was carried out on 9 June 2023.
In her statement dated 1 November 2023 the applicant outlines the ongoing symptoms she is experiencing in her lower back and lists the restrictions her back injury places upon her day-to-day life. The applicant also confirms in her statements that she is keen to undergo the surgery the subject of this claim.
The applicant also relies on medical reports from her treating doctors in relation to her claim for back surgery.
The applicant was initially treated by Dr Massoud general practitioner whom the applicant first saw on 10 January 2019. Dr Massoud provided a report dated 7 July 2020 (page 73 of the ARD). Of note, under the heading “Your Diagnosis”, Dr Massoud records “lower back pain due to disc desiccation, L4/5 disc bulging and L5/S1 disc bulging”.
The applicant was referred to Associate Professor Papantoniou, orthopaedic surgeon. The applicant first consulted Associate Professor Papantoniou on 5 September 2019. At that time Associate Professor Papantoniou records that the applicant had tried physiotherapy and chiropractic treatment which only provided temporary relief. Associate Professor Papantoniou recommended L4/5 nucleoplasty and L5/S1 nucleoplasty. The respondent denied liability for these procedures and the applicant brought proceedings in the Commission (matter number 5059/20). The applicant was successful in these proceedings. The Certificate of Determination and the Statement of Reasons of Arbitrator Cameron Burge (as he then was) dated 9 December 2020 is annexed to the ARD (page 18 of the ARD).
The applicant underwent the procedures on 10 May 2021 and 2 August 2021. Unfortunately, the procedures afforded the applicant only limited relief and on 16 November 2021, Associate Professor Papantoniou recommended an L4/S1 spinal fusion. The report of Associate Professor Papantoniou dated 28 September 2022 provides a detailed history of the applicant’s treatment and progress (page 52 of the ARD). Associate Professor Papantoniou expressed concern with respect to the applicant’s young age however Associate Professor Papantoniou felt that the surgery would be appropriate in terms of relieving the effects of the injury by stabilising the L4-S1, two motion segments and would relieve the pain from the annular tears.
The applicant was keen to proceed with the surgery despite her young age however the respondent denied liability for the proposed surgery.
Proceedings were commenced in the Commission (matter number W8285/22) and the matter was resolved by Consent Orders dated 10 February 2023 when the matter was listed before Member John Wynyard. (page 24 of the ARD). The matter was discontinued however a notation was recorded that the respondent agreed to pay for nerve conduction studies, MRI multi region study, neurology consultation, further consultation with Dr Nazha or Dr Wallace and a diagnostic CT and spec bone scan. No agreement was recorded in relation to the surgical procedure recommended by Associate Professor Papantoniou.
Prior to this the applicant had been reviewed by Dr Nazha on 1 December 2022. Dr Nazha is a pain physician and interventional pain specialist. Dr Nazha has produced a report dated
1 December 2022 (page 70 of the ARD). Dr Nazha saw the applicant at Bella Vista and recommended that she see a Dr Wallace who is a pain physician with rooms in Camden which would be more convenient for the applicant.
The report from Dr Nazha is helpful in that it records that the applicant had been seeing Dr Rastogi, psychiatrist and a psychologist. Dr Nazha records that the applicant had tried multiple medications including opiods and was at that time taking Palexia. Dr Nazha did not comment on the surgical procedure recommended by Associate Professor Papantoniou as he stated that this was outside his field of expertise however, he did mention the possibility of a trial of a spinal cord stimulator. Dr Nazha recorded significantly high scores with respect to the applicant’s pain and anxiety and stress levels based on psychometric testing.
Dr Nazha also records that the applicant underwent bariatric gastric sleeve surgery in July 2021 and gastric bypass surgery in October 2022. Dr Nazha records that the applicant was hopeful that the initial surgery would result in weight loss which would alleviate her pain. The applicant was successful in losing weight however there was no reduction in her back pain. The gastric bypass surgery was necessitated by significant and severe gastric reflux following the initial surgery. The respondent paid for these surgeries.
In 2023, the applicant commenced further proceedings in the Commission in relation to the cost of breast implant exchange surgery. As a result of her injury, the applicant gained significant weight. To address this, the applicant underwent gastric sleeve surgery and lost a considerable amount of weight. The respondent accepted liability for this procedure (page 46 of the reply). As a result of the weight loss, the applicant developed large amounts of loose skin and rippling and movement of breast implants. The respondent denied liability for the breast implant exchange surgery. The applicant contested this decision in the Commission.
The matter was listed for conciliation/arbitration on 30 August 2023 before Member Cameron Burge (matter number W3634/23). The matter did not resolve and on 29 September 2023, the applicant was successful in her claim for the breast implant exchange surgery (page 25 of the ARD).
The applicant’s last attendance with Associate Professor Papantoniou was on 13 April 2023. Prior to this, in his report dated 7 March 2023, Associate Professor Papantoniou had advised the applicant to continue with the pain management program (page 35 of the Reply). In his report dated 13 April 2023 (page 37 of the Reply), Associate Professor Papantoniou records that the applicant advised that she no longer wished to proceed with a spinal fusion but wished to consider disc replacement surgery. Associate Professor Papantoniou had an extensive discussion with the applicant in relation to the findings on the most recent MRI scan dated 6 April 2023 (page 84 of the ARD) and treatment options and Associate Professor Papantoniou agreed with the applicant that a spinal fusion was not appropriate however a disc replacement may be suitable. As Associate Professor Papantoniou did not have any experience with disc replacement he referred her to a neurosurgeon, Dr Mobbs. Associate Professor Papantoniou also provided the applicant with a referral to Dr Huang, neurosurgeon. Importantly, in his report dated 13 April 2023, Associate Professor Papantoniou expressed the view that although he was withdrawing his request for the L4/5 and L5/S1 fusion this did not in any way negate the applicant’s extensive and long-term pain.
The applicant took Associate Professor Papantoniou’s advice and came under the care of Dr Huang, neurosurgeon. The applicant’s first attendance with Dr Huang was on 9 May 2023. In his report dated 9 May 2023, Dr Huang recommended further investigations before advising on surgical options. Dr Huang also obtained a second opinion from a colleague neurosurgeon. He recommended a trial L5/S1 epidural injection and a lumbar discogram. He also noted that the applicant had already undergone five epidural injections without benefit and had seen a number of pain specialists and remained on Lyrica, Panadeine Forte, Palexia and Mersyndol Forte. She had trialled physiotherapy and hydrotherapy.
Dr Huang reviewed the applicant by telehealth on 20 June 2023. The applicant had undergone the lumbar discogram on 9 June 2023 and the lumbar spine guided injection on 16 May 2023. Dr Huang expressed the opinion in his report dated 20 June 2023 (page 62 of the ARD) that the injection and the discogram were helpful in determining the way forward in terms of surgery. The discogram strongly exacerbated the applicant’s L5/S1 symptoms in her back and down her legs and demonstrated and confirmed an annular tear. Following an “extensive discussion” with the applicant, Dr Huang recommended an L4/5 disc replacement and an L5/S1 anterior lumbar fusion to address the applicant’s lumbar spine pathology. Dr Huang forwarded his request to the respondent. The respondent denied liability for the procedure in the s 78 notice dated 8 August 2023 (page 8 of the ARD).
To prepare the applicant’s claim to contest the s 78 notice, the applicant attended an independent medical appointment with Dr Singh, spinal surgeon on 6 November 2023. Dr Singh had seen the applicant twice before in relation to her earlier claims. The report dated
9 November 2023 (page 39 of the ARD), was prepared to specifically address the surgery proposed by Dr Huang.
In his report dated 9 November 2023, Dr Singh noted the lumbar discogram had increased and exacerbated her symptoms indicative of an annular tear at L5/S1. Dr Singh advised the applicant that her treatment options included ongoing pain management and physiotherapy or surgical intervention. He suggested consideration should be given for a fusion to the lumbar spine and an L5-S1 decompression and fusion.
In his earlier report dated 19 May 2022, (page 35 of the ARD) Dr Singh noted disc bulging at L4-L5 and L5-S1 and recommended injections, medication, pain psychology, pain interventional treatment and surgery. Dr Singh noted that the applicant had trialled physiotherapy, pain medication, pain intervention techniques and these treatments had failed to improve her symptoms. Of note is the comment made by Dr Singh that chronic pain management would require the applicant to accept that she had a permanent functional deficit (page 36 of the ARD).
In his report dated 18 May 2020, Dr Singh provides the diagnosis of disc bulging at L4-5 and L5-S1 with sciatica. In this report Dr Singh supported the nucleoplasty recommended by Associate Professor Papantoniou.
The applicant also relies on a number of radiology reports.

Respondents Evidence

The respondent relies on a number of reports from Dr Davies, neurosurgeon. The report dated 24 March 2022 (page 1 of the Reply) addresses the surgery proposed by Associate Professor Papantoniou. Dr Davies opines that the applicant’s MRI scans were “essentially normal” and the surgical procedure recommended by Associate Professor Papantoniou is not reasonably necessary. Dr Davies recommends a pain management program and if the applicant was considered “psychologically suitable”, Dr Davies recommends the trial of a spinal cord stimulator.
In his report dated 14 November 2022, (page 8 of the Reply), Dr Davies confirms that this report is a file review. He considers further reports from Associate Professor Papantoniou and reports from Dr Singh. He does not alter the opinion he expressed in his report dated
24 March 2022. Dr Davies does however note that the applicant “has seen a consultant psychiatrist in a treating capacity”.
In his report dated 18 January 2023 (page 12 of the Reply), Dr Davies provides a supplementary report commenting on further reports from Associate Professor Papantoniou and Dr Singh and MRI scans dated 1 April 2021, 8 June 2021 and 1 November 2021. Dr Davies agrees that the applicant’s prognosis is guarded however he maintains his opinion that the surgery proposed by Associate Professor Papatoniou is not reasonably necessary. Dr Davies does however recommend a lumbar discography to identify the source of her discogenic pain.

In his report dated 9 June 2023 (page 17 of the Reply), Dr Davies provides a further supplementary report commenting on ä report from Dr Keller (occupational physician), a report from Dr Wallace (pain management), and reports from Associate Professor Papantoniou and Dr Huang. In this report Dr Davies addresses the applicant’s request for a discogram. Dr Davies opines that the lumbar discogram is not reasonable and is unnecessary. This is contrary to the opinion he expressed in his report of 18 January 2023 when he recommended a lumbar discogram. He also expresses the opinion that the applicant’s MRI scans are “essentially normal” and the surgery proposed by Dr Huang is not recommended. He maintains his opinion that the applicant should undergo pain management and possibly the trial of a spinal cord stimulator.
The final supplementary report from Dr Davies dated 17 August 2023 (page 21 of the Reply) addresses a further report from Dr Huang and the lumbar discogram. In this report Dr Davies acknowledges that the lumbar discogram reproduced pain with injection of the L4-5 and L5-S1 discs and that the surgery recommended by Dr Huang may lead to some improvement in the applicant’s condition. Dr Davies does however maintain that the applicant should undergo a multidisciplinary pain management plan or a trial of a spinal cord stimulator before undergoing the surgery recommended by Dr Huang.
The report from Dr Keller dated 8 March 2023 (page 24 of the reply), notes the applicant’s current medication which includes Somac, Pristiq, Circadin, Valium (if required), paracetamol, Nurofen and two to five Panadeine Forte tablets per day and two to five Mersyndol tablets per day and one to three Palexia tablets per day. The applicant rates her lower back pain “between 7-9/10 in intensity on a scale where 10 is the most severe”. Dr Keller opined that the applicant’s physical presentation was inconsistent and unexplained.
The respondent also relies on several reports from Associate Professor Papantoniou which I have already referred to above.

Applicant’s submissions

The applicant submits that the surgery proposed by Dr Huang is reasonable and necessary. The applicant’s claim is supported by Dr Huang, Associate Professor Papantoniou and Dr Singh.
The applicant submits that in his most recent supplementary report following the lumbar discogram, Dr Davies acknowledges that the surgery may lead to some improvement in the applicant’s condition.
The applicant submits that the applicant has provided a consistent history in relation to her medical treatment since the accident.
The applicant submits that the applicant has tried numerous alternative treatments and despite this, the applicant continues with unrelenting pain.
The applicant submits that the respondent has not disputed the cost of the surgical procedure recommended by Dr Huang.
The applicant submits that the radiology, in particular the MRI scans and the discogram results do demonstrate pathology at L4-5 and L5-S1. In further submissions, the applicant called on the respondent to produce the results of the MRI scan undertaken on 1 November 2021 which Dr Davies had been asked to specifically comment on in his report dated
18 January 2023. The respondent was unable to produce the report.
The applicant points out the findings made by Arbitrator Cameron Burge (as he then was) (page 20 of the ARD) in particular, paragraph 12 of the Statement of Reasons where Arbitrator Burge states “It is apparent in my view from the findings of the MRI that there are pathological changes in the applicant’s lumbar spine consistent with her ongoing complaints of injury, which I accept.”
In relation to Dr Davies recommendation that the applicant should undergo a pain management program and, if the applicant is deemed suitable, the trial of a spinal cord stimulator, the applicant submits that it is now four years since the accident. The applicant remains in constant pain. The applicant has been reviewed by several pain management specialists and has produced a Certificate of Completion of a chronic pain program on
29 March 2023 (page 4 of the ALAD filed on 29 January 2025). The applicant further points out that Associate Professor Papantoniou initially recommended a conservative approach in relation to treatment however this approach was unsuccessful. Associate Professor Papantoniou then recommended the nucleoplasty procedure. The nucleoplasty failed to provide the applicant with any relief. Following this, Associate Professor Papantoniou then recommended a multi-level fusion procedure.
The applicant submits that the respondent has not provided any evidence as to what the pain management program advocated by Dr Davies would involve over and above the pain management consultations and program that the applicant has already undertaken.
The applicant submits that I should have no confidence in the reports prepared by Dr Davies in light of his failure to recognise the pathology that is demonstrated in the MRI scans and the discogram.

Respondent’s submissions

The respondent submits that it is unclear what the pathology is in the applicant’s lumbar spine that the surgery proposed by Dr Huang is seeking to address. The respondent submits that the radiology does not demonstrate pathology that requires surgery.
The respondent submits that Dr Davies opinion should be preferred. The respondent points out that Dr Davies opines that the surgery may make the applicant’s condition worse. Dr Davies is also concerned that the applicant would be undertaking a major irreversible procedure at a very young age. The respondent also submits that the applicant should undergo the pain management program and trial a spinal cord stimulator before undergoing the surgery proposed by Dr Huang.
The respondent submits that Associate Professor Papantoniou has withdrawn from his recommendation in relation to L4-5 and L5-S1 fusion surgery in his report dated 13 April 2023 based on the paucity of pathology visible on the imaging.
The respondent rejects the applicant’s submission that the applicant has undergone a pain management program. The respondent refers to the reports from Dr Richmond dated 1 May 2023 and 23 May 2023 (pages 5 and 6 of the ALAD filed on 29 January 2025). The respondent submits that this would appear to be the last time the applicant consulted with Dr Richmond and according to the s 78 notice dated 8 August 2023, Dr Richmond advised EML that the applicant had advised her that she did not wish to participate in the recommended pain management program.
The respondent also notes in his most recent report dated 9 November 2023 Dr Singh supports the pain management program recommended by Dr Davies.
The respondent points out that we do not have a report from any of the pain management specialists that the applicant has seen including Dr Nazha and Dr Richmond confirming that she has undertaken a pain management course. The respondent submits that it is unclear what type of pain management course the applicant participated in and received the Certificate of Completion for dated 29 March 2023 annexed to the ALAD filed by the applicant on 29 January 2025.

Findings and reasons

Section 60 (1) of the 1987 Act provides as follows:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that-
(a) any medical or related treatment (other than domestic assistance) be given,
or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
Section 59 of the 1987 Act then defines “medical or related treatment” as including:
(a)     treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist;
(b)     therapeutic treatment given by direction of a medical practitioner;
(c)     the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles;
(e)     any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment;
(f)      care (other than nursing care) of a worker in the worker’s home directed by a medical practitioner having regard to the nature of the worker’s incapacity;
(g)     domestic assistance services;
(h)     the modification of a worker’s home or vehicle directed by a medical practitioner having regard to the nature of the worker’s incapacity, and
(i)      treatment or other thing prescribed by the regulations as medical or related treatment.
The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) 1986 2 NSWCCR 2 (Rose), where his Honour said:
“3.     Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.     It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgement and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.     In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
In Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab) Roche DP considered Rose and concluded:
“86. Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at 154). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Doctor Bodel and Dr Meakin were both wrong to apply that test.
87. Giles J added (at [49] in O'Shea) that the qualification whereby the necessity must be reasonable calls for an assessment of the necessity having regard to all relevant matters, according to the criteria of reasonableness. His Honour was talking in the context of whether an easement should be granted under s 88K of the Conveyancing Act1919 which provides that ‘the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement’. However, his Honour’s observations are applicable in the present matter and are clearly consistent with Clampett.
88. In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
89. With respect to point (d) it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts”.
I have been asked to determine whether or not the surgery proposed by Dr Huang in his report dated 15 May 2024 is reasonably necessary treatment pursuant to s 60 of the 1987 Act.
I accept the statement evidence of the applicant. There is no dispute that the applicant has had ongoing pain and symptoms in her lower back for over six years ago since the accident on 14 December 2018. The pain and symptoms significantly interfere with her daily life.
I accept the applicant’s statement evidence in relation to the pain management programs. I accept that the applicant advised Dr Richmond that she had already undertaken a pain management consultation with Dr Nazha and had completed the Chronic Pain Program on 29 March 2023 which had been recommended by Dr Nazha which was two months before she started to consult with Dr Richmond.
The medical evidence indicates that the applicant has come under the care of a psychiatrist and a psychologist. Unfortunately, we do not have any reports from the applicant’s treating psychiatrist or psychologist.
The medical evidence also indicates that the applicant consulted Dr Wallace, pain management specialist upon referral from Dr Nazha. Dr Davies refers to a report from Dr Wallace in his supplementary report dated 9 June 2023 (page 17 of the Reply). The applicant explains that Dr Richmond is a colleague of Dr Wallace and the applicant ended up attending Dr Richmond for pain management rather than Dr Wallace (page 1 of the ALAD filed by the applicant on 4 February 2025).
I accept the applicant’s submission that in his numerous reports, Dr Davies refers to a pain management program as an alternative or precursor to the surgery recommended by Dr Huang but does not provide any commentary on the pain management that the applicant has already undertaken and how it is deficient. Furthermore, I note that Dr Davies has only consulted with the applicant on one occasion in 2022. His supplementary reports are file reviews based on selected reports forwarded to him for comment by the respondent. He has not taken a history of treatment directly from the applicant since 2022.
I accept the respondent’s submission that Associate Professor Papantoniou has resiled from his earlier opinion that the applicant required an L4-5, L5-S1 fusion however I note that is not the surgical procedure that I have been asked to consider. In his report dated 13 April 2023 Associate Professor Papantoniou noted that the applicant did not wish to proceed with the multi-level fusion but wished to consider disc replacement. For this reason, Associate Professor Papantoniou referred her to a neurosurgeon for advice in relation to disc replacement. In the report dated 13 April 2023, Associate Professor Papantoniou recommends that the applicant continue with the two chronic pain management specialists that she was seeing. The applicant took this advice and consulted with Dr Richmond on at least two occasions in May 2023 (pages 5 and 6 of the ALAD filed by the applicant on
29 January 2025). I also note that at the last consultation with Associate Professor Papantoniou on 13 April 2023, the applicant had not undergone the lumbar discogram procedure and the L5-S1 epidural injection that were recommended at a later stage by Dr Huang. In the circumstances, Associate Professor Papantoniou did not have the results of these investigations.
The applicant came under the care of Dr Huang neurosurgeon. I accept that following on from the positive findings noted by Dr Huang in his report dated 20 June 2023 in respect of the lumbar discogram, Dr Huang recommended the L4-L5 disc replacement and the L5-S1 anterior lumbar fusion which is the surgery the subject of this claim.
Dr Singh supports the L5-S1 fusion surgery proposed by Dr Huang. Dr Singh had the benefit of the lumbar discogram results when he prepared his report dated 9 November 2023. Dr Singh does not comment on the L4-L5 disc replacement. However, in an earlier report dated 19 May 2022, Dr Singh supported Associate Professor Papantoniou’s recommendation for L4 to S1 instrumented fusion. Dr Singh did however caution that prior to undergoing the surgery at that time recommended by Associate Professor Papantoniou, the applicant should undergo further investigations to identify the pain generators. The applicant has now undergone the further investigations by way of a lumbar discogram in relation to L4-L5 and L5-S1. The discogram results dated 9 June 2023 recorded “positive symptoms on injection at L4-5 with significantly more positive features at L5-S1” (page 86 of the ARD).
I also note that in his most recent report dated 9 November 2023, Dr Singh notes the applicant has had symptoms for quite some time and has not had any significant improvement of her symptoms with conservative treatment. Dr Singh notes the applicant suffers from significant pain and has only limited of movement of the lumbar spine.
In his report of 19 May 2022, Dr Singh addresses the suggestion that a spinal cord stimulator could be a trialled. Doctor Singh is of the opinion that a spinal cord stimulator would be of limited benefit (page 37 of the ARD).
In summary, I agree with the applicant’s submissions that the applicant has tried conservative and surgical treatment in the past. These measures have not alleviated her ongoing pain. Both Dr Huang and Associate Professor Papantoniou advised in their reports that they spent a great deal of time discussing with the applicant the pros and cons of the surgical treatment as opposed to a continuing with a conservative approach. The applicant has decided to proceed with the surgery recommended by Dr Huang. The applicant confirms this as recently as her statement of 3 February 2025.
In accepting the recommendation for surgery proposed by Dr Huang over the conservative approach recommended by Dr Davies I note the following:
(a)    Dr Davies had only one consultation with the applicant whereas Dr Huang has been the applicant’s treating neurosurgeon since 9 May 2023 on referral from Associate Professor Papantoniou who saw the applicant on numerous occasions between 5 September 2019 and 13 April 2023.
(b)    Dr Davies has not had the opportunity to discuss the pain management program he recommends with the applicant or obtain from the applicant clear details of the pain management she has already undertaken. Dr Singh opines that a chronic pain management program would involve an acceptance by the applicant that her condition was permanent and she would have to learn to live with the pain and the functional deficit (page 36 of the ARD).
(c)    Dr Davies fails to acknowledge that the insertion of a spinal cord stimulator involves a surgical procedure and as Dr Singh opines, a spinal cord stimulator would be of limited benefit. (page 37 of the ARD). Dr Davies also points out that at present, the applicant would not be a suitable candidate for a spinal cord stimulator and would require a multidisciplinary pain management programme before considering this option (page 6 of the Reply).
(d)    Dr Davies’ reports are inconsistent. In his report of 18 January 2023, he recommends that the applicant undergo a discogram to identify the source of her pain (page 13 of the Reply). Less than six months later in his report of 9 June 2023, Dr Davies states that he does not think that a lumbar discogram is reasonable and necessary (page 20 of the Reply). In his report dated 17 August 2023, Dr Davies considers the results from the lumbar discogram and comes to the revised opinion that the disc replacement and lumbar fusion procedure recommended by Dr Huang will lead to some improvement, but the chances are not high (see page 22 of the Reply).
(e)    Up until Dr Davies is presented with the lumbar discogram findings, Dr Davies opines that the radiology does not demonstrate any significant pathology.
(f)    This opinion is at odds with the findings made by Arbitrator Cameron Burge in his Statement of Reasons dated 9 December 2020 (page 20 of the ARD) in relation to pathology in the lower back and also the opinions expressed by Dr Singh and Dr Huang and Associate Professor Papantoniou.
(g)    I do not have before me the results of the MRI scan undertaken on 1 November 2021 however, I accept the summary of that investigation contained in the report from Associate Professor Papantoniou which reads as follows, “this demonstrates an L5/S1 large horizontal annular tear all the way to the posterior disc edge. There is an associated minor disc bulge at this level. At L4/5 there is an annular tear, which goes approximately half way through the annulus to the posterior part of the disc” (page 49 of the ARD). I find that this supports significant pathology in the applicant’s lumbar spine and provides a basis for her ongoing pain and symptoms. I do not accept Dr Davies’ opinion that the radiology does not demonstrate any significant pathology.

I accept the applicant’s submission that the surgery proposed by Dr Huang would stabilise the L5/S1 segments and relieve the pain from the annular tears which I accept are demonstrated on the radiology. I also agree that the disc replacement surgery at L4-L5 is an appropriate medical treatment for the pathology demonstrated on the radiology and confirmed by Dr Huang, Dr Singh, Dr Massoud and Associate Professor Papantoniou.
Dr Davies has recommended a further course of conservative treatment without having consulted directly with the applicant in relation to the extent of the treatment she has already undergone. Whilst I acknowledge the concerns expressed by all of the medical providers in relation to the applicant’s age and possibility of further surgery, when considering the significant history of treatment that the applicant has already undergone since the accident, including numerous surgical procedures, I am persuaded that the surgery proposed by Dr Huang is reasonably necessary treatment to address her unrelenting lower back pain.
Having considered the whole of the evidence presented, I am comfortably satisfied that the applicant has discharged her onus of proving on the balance of probabilities that the surgery proposed by Dr Huang is reasonably necessary treatment of her long-standing lower back pain and symptoms.
In considering the matters referred to in Rose and Diab, I find:
(a)    The surgery proposed by Dr Huang is appropriate treatment for the applicant’s lower back pain and symptoms. The doctor has been consistent in his recommendation to the applicant in this regard for the last two years. The recommendation is supported by Dr Singh. I do note that Associate Professor Papantoniou has not been asked to comment on the surgery proposed by Dr Huang and did not have the benefit of the findings from the discogram. I do note however that Associate Professor Papantoniou recommended a multi-level fusion up until April 2023.
(b)    In relation to the alternative treatment available to the applicant, I note the only recommendations that have been made are in relation to a chronic pain management programme and the insertion of a spinal cord stimulator. I am satisfied that the applicant has already engaged in chronic pain management which has not led to any improvement in her pain levels or resulted in a reduction of the medication that she is currently taking for management of her pain. The applicant has also undergone numerous epidural injections for treatment of her lower back which have provided her with no relief. I also accept that the insertion of a spinal cord stimulator involves a surgical procedure. I accept that the applicant discussed the use of a spinal cord stimulator with Dr Huang and following that discussion instructed Dr Huang that she wished to proceed with the surgery rather than a spinal cord stimulator (page 68 of the ARD).
(c)    No issue has been raised in relation to the cost of the procedure which appears in the report from Dr Huang dated 15 May 2024 (page 7 of the ALAD filed by the applicant on 29 January 2025) and I accept that the cost of the procedure is reasonable.
(d)    In relation to the potential effectiveness of the proposed surgery, I am willing to accept that the applicant’s condition has continued to deteriorate. It is clear from the reports from Dr Huang that he has fully explained the risks involved with surgery. Dr Huang has recommended the surgery. Dr Huang opines that the lumbar disc replacement and fusion would have a role in managing the applicant’s symptoms. (page 62 of the ARD) Associate Professor Papantoniou was of the opinion that the multi-level fusion that he had proposed would be appropriate in terms of relieving the effects of the injury (page 54 of the ARD). I acknowledge that Associate Professor Papantoniou resiled from this recommendation for a multi-level spinal fusion in his report dated 13 April 2023 (page 38 of the Reply) however he did not have the benefit of the results of the discogram which was conducted on 9 June 2023. Associate Professor Papantoniou has discussed treatment by way of a multi-level fusion with the applicant since his consultation with her on 16 November 2021 (see page 50 of the ARD), which is over four years ago.
Finally, I repeat the comment made by Deputy President Roach in the matter of Diab where he states “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.”
In this case I am of the opinion that on the basis of the medical evidence and the statement evidence before me and the facts of this case, the surgery proposed by Dr Huang is reasonably necessary medical treatment.

SUMMARY

Considering the whole of the medical evidence presented, I find that the surgical procedure recommended to the applicant by Dr Huang (L4/L5 total disc replacement and L5/S1 lumbar interbody fusion) as referred to in his report dated 15 May 2024, is reasonably necessary medical treatment as a result of the injury the applicant sustained to her lumbar spine on 14 December 2018.
There will be an award for the applicant pursuant to s 60 of the 1987 Act, and the respondent is ordered to pay for the costs of and incidental to the surgery (L4/L5 total disc replacement and L5/S1 lumbar interbody fusion) proposed by Dr Huang in his report dated 15 May 2024.

[2025] NSWPIC 50

18 February 2025