Davis v MTEC Mechanical Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Davis v MTEC Mechanical Services Pty Ltd [2025] NSWPIC 525
APPLICANT:	Brooke Davis
RESPONDENT:	MTEC Mechanical Services Pty Ltd
MEMBER:	Michael Wright
DATE OF DECISION:	3 October 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for proposed spinal surgery; section 60 dispute; causation; factual issues considered; Kooragang Cement Ltd v Bates considered; Held – proposed surgery reasonably necessary as a result of subject injury.
DETERMINATIONS MADE:	The Personal Injury Commission (Commission) determines: 1. The surgery proposed by Dr Ferch, being “spinal decompression, laminectomy, vertebrectomy or pos, fixation of motion segment with pedicle screws - 1 segment, spinal fusion, posterior/anterior - 1 segment, spine bone graft - 1 segment” (the proposed surgery) is reasonably necessary as a result of the injury on 24 February 2022. 2. Pursuant to s 60 of the Workers Compensation Act 1987, respondent is to pay for the costs of, and associated with, the proposed surgery. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

On 24 February 2022, Ms Brooke (the applicant) in the course of her employment as a heavy vehicle mechanic with MTEC Mechanical Services Pty Ltd (the respondent) was struck on the face by a chain that had broken while lifting an 8tonne truck engine into a large truck. She fell backwards from a height of 2m. The applicant suffered dental and facial injuries, psychological injury (post-traumatic stress disorder) and injury to her lumbar spine. There was no dispute as to injury.
The applicant claims in these proceedings for the proposed costs of surgery in the form of an L4/5 lumbar discectomy and fusion, as recommended by Dr Ferch, treating neurosurgeon. The respondent disputed that the recommended surgery was reasonably necessary as a result of the injury.

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 Morgan of counsel, and the respondent by Ms Goodman of counsel.

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 (the Application) and attached documents;
(b)    Reply and attached documents, and
(c)    Applications to Lodge Additional Documents, dated 31 July 2025 and
22 August 2025, and attached documents.

Oral evidence

There was no oral evidence.

Documents

The applicant provided a statement dated 20 June 2025.
She described the accident on 24 February 2022 and subsequent dental treatment, with eight oral surgeries including dental implants, bone grafting and frontal sinus surgery and removal of 20 teeth. She recounted the accident as follows:
“On 24 February 2022, I was at work on top of a ladder repositioning an engine into a bulldozer. Do to this, I was using an overhead crane with a chain block to connect this to the engine. I was approximately two metres off of the ground… When the chain block dislodged it struck me in my face. I was knocked off the ladder and fell onto the ground which knocked me unconscious. The fall was approximately 2 metres. When I awoke, some of my teeth were broken and my face was extremely sore and cut up. My eye tooth was found 20 metres away in the workshop…”
The applicant said that once she started to reduce her pain medication for the facial injuries, she began to notice worsening pain in her back and legs. She saw a chiropractor, and was referred for an MRI and to Dr Ferch, neurosurgeon. She said that Dr Ferch recommended a lumbar spine decompression. She described her continuing pain and symptoms in her back and legs, left worse than right.
The following documents were referred to in submissions, and will be discussed briefly in my reasons:
(a)    clinical records of the medical practice of the treating general practitioner,
Dr Shahid, as well as his report dated 2 August 2024;
(b)    reports of Dr Ferch, neurosurgeon, dated 3 September 2024 and 2 July 2025, and quotes for surgery of 3 September 2024 and 2 July 2025;
(c)    report of Dr Ng, dated 21 June 2023, and
(d)    medico-legal reports of Dr Edger, neurosurgeon, dated 22 March 2025, and
Dr A Smith, orthopaedic surgeon, 22 November 2024 and 4 August 2025.

Reasons

The application claimed future treatment expenses as follows:
“Spinal decompression, laminectomy, vertebrectomy or pos.
Fixation of motion segment with pedicle screws - 1 segment.
Spinal fusion, posterior/anterior - 1 segment.
Spine bone graft - 1 segment.”
This was in accordance with the quote for surgery by Dr Ferch.
As noted above, there was no dispute as to injury to the lumbar spine on 24 February 2022. Dr Smith was of the opinion that the accident exacerbated the degenerative process in the applicant’s lower back, although he thought that aggravation had long ceased. Dr Edger was of the view that there was some evidence of very mild Scheuermann’s disease, no evidence of degenerative changes other than at L4/5 and L5/S1, and the history and MRI findings were consistent with acute injury on 22 February 2022.
The respondent submitted the last recorded treatment for back symptoms was in
September 2023 by the chiropractor, Dr Ng, who conceded he was not SIRA registered. It was submitted that the clinical notes of the GP made no reference to back or leg pain or symptoms from September 2024 and thereafter, and that most of the applicant’s complaints are in respect of her facial injuries. This it was said provided the context for Dr Smith’s opinion that an exacerbation of a pre-existing condition had ceased.
I do not accept this submission for two reasons.
First, reports and documents as follows do not support the submission:
(a)    Dr Ng recorded in his report of 21 June 2023 that on attendance on 2 June 2023 the applicant’s main concern was constant lower back pain with left sided sciatic symptoms following the subject injury. On examination he noted, inter alia, severe lumbar spine pain and radicular pain from L4/5 to the left posterior calf muscle. In my view, the concession that Dr Ng made that he is not SIRA registered is irrelevant to my consideration of the history noted and examination findings. In any event, these matters are broadly consistent with the applicant’s statement, and the reports of Dr Shahid and Dr Ferch;
(b)    an MRI scan of the lumbar spine was undertaken on 15 April 2024, on referral by Dr Shahid. On that day, presumably prior to the time of the MRI, the clinical note of Dr Shahid noted review of the back, discussion of back exercises, Panadol for pain and referral for the MRI. The MRI result was noted by Dr Shahid in his clinical note of 20 April 2024, in which back physiotherapy was discussed. A further note of 27 April 2024 in the context of the lumbar MRI, noted ongoing pain and need for specialist input;
(c)    Dr Shahid in his report of 2 August 2024 recorded a history of worsening back pain over the months following the subject accident. Dr Shahid also recorded ongoing numbness and leg pain, which required treatment and specialist review;
(d)    Dr Ferch in his report of 3 September 2024 noted continuing radiating back pain into the legs, left worse than right, into the left buttock, thigh and calf;
(e)    Dr Smith in his report of 22 November 2024 recorded a problem with the low back, and
(f)    Dr Edger in his report of 22 March 2025 noted presenting complaints including lower back pain with radiation to both lower limbs, left worse than right, with symptoms disrupting sleep. He noted lower back pain and leg pains were progressing.
I prefer the reports and documents noted above to the clinical notes in respect of what was said to be an absence of notation of back or leg symptoms. The context of such clinical consultations and notes is important. As noted by Dr Shahid in his report, the applicant continues to suffer from “PTSD”. The notes also referred to depression, panic attacks and facial pain after 16 September 2024.
I take the reference to “PTSD” in Dr Shahid’s report to mean post-traumatic stress disorder. post-traumatic stress disorder as a result of the subject accident has not been disputed by the respondent. Dr Edger noted continuing tooth-related oral pain, also not disputed.
Second, busy medical practitioners sometimes misunderstand or mis record histories, particularly when concerned with the treatment of an indisputable frank injury,[1] such as in this case where there were facial and dental injuries, with multiple surgeries, and post-traumatic stress disorder. I consider these clinical notes should be regarded with the caution applied in Mason v Demasi,[2] that is the applicant’s testimony in her statement and in the histories recorded by the above medical practitioners are accepted and preferred. I accept the applicant’s statement.
[1] Davis v The Council of the City of Wagga Wagga [2004] NSWCA 34 at [35].
[2] [2009] NSWCA 227 at [2].
The opinion of Dr Smith, including his report of 4 August 2025, was that the proposed surgery was for treatment of pre-existing lumbar disease, not for treatment of the exacerbation on 24 February 2022, an aggravation which he thought had long ceased.
I do not accept the respondent’s submission that the opinion of Dr Smith should be accepted. Dr Smith:
(a)    did not explain why he thought the exacerbation had ceased, or how long it lasted;
(b)    took a history only of the applicant being struck on the neck and face by the chain, but not of the subsequent fall. In respect of the applicant’s back he recorded only that “there was also a problem with the low back”. He did note the history recorded by Dr Ferch that the applicant fell as a result of being struck on the face by the crane, but the fall was not otherwise noted, and
(c)    did not take a history in relation to current reported symptoms, other than a brief record of examination of movement which did not record symptoms (or lack of symptoms) in the back or the legs. He noted the histories of Dr Ferch and
Dr Edger. There was a brief, and somewhat cryptic, reference in his
4 August 2025 report (not based on further examination of the applicant) to “any contemporaneous symptoms”.
I do not accept the opinion of Dr Smith that the applicant suffered an initial exacerbation of her degenerative back condition which had ceased.
The respondent also relied upon the opinion of Dr Smith to contend that the proposed surgery was not recommended. I do not accept this contention as Dr Smith:
(a)    was of the view that the exacerbation had ceased and that the proposed surgery was for the underlying degenerative condition. I do not accept this proposition;
(b)    did not specifically address the issue of the proposed surgery in relation to leg pain. He wrote in general terms of “the symptoms” and “the exacerbation”, but when he wrote of specific symptoms in his opinion, he referred only to back pain. This is significant because both Dr Edger and Dr Ferch in their opinions considered specifically back pain and leg pain, and
(c)    in any event, in his later report, he was of the view that with sufficient severity and frequency of symptoms spinal fusion of L4/5 and L5/S1 is appropriate treatment, which he thought was best done with an anterior approach, notwithstanding his earlier view that the applicant should have guided injections into the facet joints. He did disagree with posterior interbody fusion due to his view of the failure rate. This comes down to a consideration of the available expert medical opinion. I have accepted the applicant’s statement. I did not understand Dr Ferch’s and
Dr Edger’s opinions specified definitively a posterior approach. Dr Ferch’s quote referred to “posterior/anterior” spinal fusion. In any event I prefer the opinions of Dr Ferch and Dr Edger, whether the final approach is anterior or posterior.
The respondent submitted that there was a difference between the applicant’s understanding of the proposed treatment and the claim to be determined in these proceedings. That is, in her statement the applicant referred only to the surgery recommended by Dr Ferch as “a lumbar spine decompression”.
I do not accept this submission. In my view, there are a number of different possible explanations other than a fundamental misunderstanding, or difference in intention between the applicant and her surgeon, of what the applicant wants the surgery to do. These include the possibilities that the description given by the applicant was simply imprecise, or that it was an error in nomenclature. I accept these possibilities as being persuasive. This view is supported by the following:
(a)    Dr Ferch’s report of 3 September 2024 recorded specifically a discussion with the applicant as to decompression and interbody distraction and fusion at L4/5;
(b)    Dr Edger in his report recorded a history that included consultation with Dr Ferch who recommended surgery in the form of an L4/5 lumbar discectomy and fusion operation;
(c)    Dr Smith took a similar history, and
(d)    the Application to Resolve a Dispute in these proceedings specifically claimed for the itemised surgery recommended by Dr Ferch, including spinal fusion. This is presumed to be done on instruction by the applicant’s solicitors.
Turning to the opinions of Dr Ferch and Dr Edger, I note that:
(a)    Dr Ferch was of the view that MRI confirmed there was degenerative change at L4/5 where there was left sided disc protrusion and foraminal stenosis, and he diagnosed degenerative L4/5 spondylolisthesis, but he did not otherwise comment on causation;
(b)    Dr Edger’s opinion was not dissimilar, commenting that MRI showed lumbar disc prolapse at L4/5 with posterior and lateral extension, causing L4 exit foramen narrowing and lateral recess and central canal stenosis, with mild anterolisthesis and mild degenerative change at L5/S1, and normal levels above L4/5. He diagnosed discogenic lower back pain due to L4/5-disc herniation resulting in lumbar stenosis and left more than right sciatica, and
(c)    Dr Edger on causation was of the view that the history was consistent with lumbar disc injury at the time of the accident, which progressed over time, with gradual backwards prolapse of the L4/5 disc resulting in lumbar nerve compression and sciatica. He noted that the MRI was performed two years after the accident and he did not consider that the changes seen could be assumed to have pre-dated the accident. He was of the view that the lumbar disc prolapse was continuing to compress the lumbar nerve roots, and the disc prolapse may be increasing in size with time and lack of definitive treatment. He thought that while there was some evidence of Scheuermann’s disease, also discussed by
Dr Smith, it was very mild.
I prefer the opinion of Dr Edger, which is not inconsistent with that of Dr Ferch. Dr Edger provided a detailed history, analysis and path of reasoning, more so than Dr Smith. I accept Dr Edger’s opinion that there was lumbar disc injury at the time of the subject accident, the effects of which have continued and worsened since that accident. This is in accordance with the applicant’s statement, which I have accepted.
Applying a common sense view of causation[3], I find that the applicant sustained injury to her lumbar spine on 24 February 2022, as per the opinion of Dr Edger, and that the need for the proposed surgery results from the injury to the applicant’s lumbar spine on 24 February 2022.
[3] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796
As to the proposed surgery, both Dr Ferch and Dr Edgar were of similar views. Dr Edger opined that successful treatment carried good prospects of improvement in back pain and significant improvement in leg pain.
The respondent criticised the opinion of Dr Ferch for recommending the proposed surgery on the first consultation, and without referral for other treatment, such as facet joint injections recommended initially by Dr Smith. I note that Dr Smith, contrary to this submission, in his later report conditionally accepted the proposed surgery, on the proviso of an anterior approach as discussed above. In any event, Dr Edger agreed with Dr Ferch’s recommendation. I do not accept the respondent’s submission.
The applicant relied upon the decisions of Diab v NRMA Ltd[4] and Rose v Health Commission (NSW)[5] as to reasonable necessity. While it is the case that these decisions provide guidance as to the approach to be taken, they are in my view not exclusively definitive nor a checklist of matters to be considered. These are useful matters for consideration, but the essential question remains as to whether the treatment is reasonably necessary.[6]
[4] [2014] NSWWCCPD 72.
[5] (1986) 2 NSWCCR 32.
[6] Margaroff v Cordon Bleu Cookware Pty Ltd (1997) 15 NSWCCR 204, per Campbell CJ at 208.
In this regard, I note the following:
(a)    Dr Ferch recorded that he did consider the possibility of other treatment, being transforaminal steroid injections or treatment through a pain specialist. He discussed the effectiveness of the proposed surgery. He considered appropriateness in terms of persistent back and leg pain despite conservative treatment;
(b)    Dr Edger thought the low back pain and lumbar spine pain should be adequately treated with the surgery proposed by Dr Ferch. He gave a detailed reason for this view. He was of the opinion that without adequate treatment of the lumbar spine there was no possibility of the applicant regaining capacity to return to work, and
(c)    as noted above, Dr Smith conditionally agreed that spinal fusion of L4/5 and L5/S1 is the appropriate treatment. I have discussed above his view regarding a posterior approach, which I have not accepted.
I am satisfied that the essential question as to whether the proposed treatment is reasonably necessary should be answered in the applicant’s favour. The above matters support this conclusion.
The surgery was described by Dr Ferch in his report of 3 September 2024 as “interbody distraction and fusion over the L4/5 level…allow for foraminal decompression as well as restoration of alignment and stabilisation of the segment”. The Application in this matter reproduced Dr Ferch’s quotes, as noted above. Dr Edger described the surgery as L4/5 discectomy and fusion. Dr Smith described its spinal fusion of L4/5 and L5/S1. I will rely upon the procedure claimed in the Application and in the quotes of Dr Ferch.

[2025] NSWPIC 525

3 October 2025