De La Blanca v Kingsfeld Excavations Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	De La Blanca v Kingsfeld Excavations Pty Ltd [2022] NSWPIC 94
CLAIMANT:	Michael De La Blanca
INSURER:	Kingsfeld Excavations Pty Ltd
MEMBER:	John Isaksen
DATE OF DECISION:	4 March 2022
CATCHWORDS:	WORKERS COMPENSATION - Order sought by worker for the respondent to meet cost of L4/5 fusion; respondent admits injury but disputes surgery is reasonably necessary as a result of work injury; comparison of the opinions of four neurosurgeons; reference to Rose v Health Commission; Held– worker not able to establish that proposed surgery is reasonably necessary as a result of his injury.
DETERMINATIONS MADE:	The L4/5 fusion proposed by Dr Kam is not reasonably necessary as a result of the injury sustained by the applicant on 22 March 2018.

STATEMENT OF REASONS

BACKGROUND

The applicant, Michael De La Blanca, sustained an injury to his lower back on 22 March 2018 while employed as a machine operator with the respondent, Kingsfeld Excavations Pty Ltd.
The respondent has admitted liability for this injury.
The applicant has undergone a range of conservative treatment including multiple injections in the lumbar spine, physiotherapy and long term use of strong analgesic medication.
The applicant was assessed as having 7% whole person impairment by Dr McGroder, Approved Medical Specialist, for the injury to the lumbar spine in a Medical Assessment Certificate dated 25 February 2020.
The applicant’s current treating neurosurgeon, Dr Kam, has proposed that the applicant undergo an L4/5 fusion to relieve left sided leg pain and mechanical back pain.
The applicant wishes to undergo that surgery and seeks an order pursuant to section 60(5) of the Workers Compensation Act 1987 (the 1987 Act) that the respondent pays the costs of an L4/5 fusion proposed by Dr Kam.
The respondent disputes that the proposed surgery is reasonably necessary as a result of the injury sustained by the applicant.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the L4/5 fusion proposed by Dr Kam is reasonably necessary as a result of the injury sustained by the applicant on 22 March 2018 (section 60 of the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

The parties attended a conference and hearing on 24 February 2022. 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.
Mr Carney appeared for the applicant, instructed by Ms Tavianatos. Mr McMahon appeared for the respondent, instructed by Mr Patterson.
The hearing was conducted by telephone in accordance with the protocols set by the Commission as a result of the coronavirus pandemic.
An allegation of injury to the cervical spine in the Application to Resolve a Dispute (ARD) was not pressed by the applicant.
Mr McMahon for the respondent conceded that an allegation in the Reply that the applicant did not fall a distance of two to two and half metres when he sustained injury on 22 March 2018 was not relevant to the dispute which I had to determine.
The respondent sought to have a second report from Dr Peter Bentivoglio dated 22 February 2022 admitted into evidence. That was opposed by Mr Carney, even though he conceded the contents of the report did not really advance or change what was relied upon by the respondent to dispute liability.
I did not allow the report into evidence given the late service of the report and that the provision of a further report from Dr Bentivoglio was not foreshadowed at the telephone conference conducted on 1 December 2021.
There was a direction made at the conclusion of the hearing that an MRI scan report dated 1 April 2021, which was listed but not attached to the ARD, be filed as a late document by 28 February 2022.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    the ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the applicant on 18 November 2021, and
(d)    Application to Admit Late Documents filed by the applicant on 25 February 2022.

Oral evidence

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

The applicant’s evidence

The applicant has provided statements dated 22 November 2019 and 18 October 2021.
The applicant states that he has significant back pain and pain going down his left leg.
The applicant states that he has had approximately 15 injections in his lower back, which have only provided temporary relief of his symptoms. He states that he has had physiotherapy and hydrotherapy, which also has only provided temporary relief. He states that he is currently taking Endone and Valium, but this does not assist with his chronic back pain.
The applicant states that he has difficulty walking for more than 20 to 30 minutes, and that his left leg can give way at any time.
The applicant states that he wants to undergo the surgery proposed by Dr Kam so that it is more manageable for him to undertake his daily activities and he can hopefully return to work.

The applicant’s medical evidence

The applicant has undergone MRI scans of the lumbar spine on 20 April 2018, 30 August 2019, 4 August 2020 and 1 April 2021. The scans dated 20 April 2018 and 1 April 2021 were taken at Blacktown Hospital.
The applicant has attended three neurosurgeons for treatment for the injury to his lower back.
The applicant firstly saw Dr Al-Khawaja on or about 4 May 2018, which was about six weeks after the applicant sustained his injury. Dr Al-Khawaja refers to a MRI scan which reports a disc extrusion at L2/3, and annular fissuring demonstrated at the L3/4, L4/5 and L5/S1 discs, which would be a potential cause of discogenic pain. He writes that there was no associated disc protrusion or mechanical neural impingement.
There is a report from Dr Al-Khawaja of a lumbar epidural injection performed on 6 June 2018, but unfortunately there is no information included of the level or levels of the lumbar spine that were injected by Dr Al-Khawaja.
In a report dated 14 July 2018, Dr Al-Khawaja records that the injection did not make any difference to the applicant’s condition and Dr Al-Khawaja recommended pain management.
The applicant attended A/Prof Davidson, neurosurgeon, in a teleconsultation on 25 May 2020, which is two years after the applicant sustained his injury.
A/Prof Davidson provides a lengthy report to the applicant’s general practitioner, Dr Loh, following this consultation. He records that he is informed that the applicant has had up to 20 injections with some short term relief. He records that the applicant has bilateral leg pain, the left leg being worse than the right leg.
A/Prof Davidson writes that he is able to view an MRI scan of the lumbar spine dated 30 August 2019, but he was unable to view any imaging taken at the time of the injury in 2018. He writes that the MRI scan shows a quite large L2/3 disc extrusion. A/Prof Davidson then writes:
“The fact that this disc fragment was present almost 18 months after his original injury raises the question about whether this may in fact be contributing to his ongoing pain. It was not reported in the MRI scan and it is unclear to me whether it was present or reported on his initial post-injury scans. The rest of his lumbosacral spine is essentially normal. There is a small annular disc tear at L3/4, probably of no clinical significance.
I note the extensive L2/3 disc injury, which was not reported on the scan from August 2019. I explained to David that this finding does not necessarily change his management over the last 12 months, as it probably would not have necessitated a surgical discectomy and it would not necessarily have been targetable via CT-guided steroid injections. I suspect that most of his pain is now chronic non-anatomical pain. However, it is interesting to note that the initial triggering event for David’s chronic pain may well have been a severe L2/3 disc injury.”
A/Prof Davidson recommends “that David be completely re-imaged.” An MRI scan taken on 4 August 2020 reports: “Multilevel degenerative disc disease. There is a focal disc extrusion L2/3.”
A/Prof Davidson then sees the applicant in person on 14 August 2020. He writes that the MRI scan shows a residual small central L2/3 disc extrusion and very minor dehydration of the discs below that level. A/Prof Davidson writes:
“Unfortunately, although I think we have identified the initial trigger for David’s pain (being the missed L2/3 disc extrusion), there is now no longer any radiological evidence of nerve root compression and no surgical solution to his pain.”
The third neurosurgeon who has provided treatment to the applicant is Dr Kam. The referral to Dr Kam from Dr Loh asks for “an opinion and management for his disc prolapse needing further surgery.”
Dr Kam sees the applicant on 17 June 2021 and records that the applicant has been suffering ongoing back pain and left lower extremity pain for three years following a work related injury on 22 March 2018 when the applicant fell 2.5 metres off a machine.
Dr Kam records that the applicant had previously seen Dr Al-Khawaja. He records that the applicant’s main problem is constant pain in the lower back which does not allow the applicant to sit still. He also records the applicant having pain going down his left leg.
Dr Kam writes that an MRI scan performed at Blacktown shows an annular tear involving the L4/5 and L5/S1 levels. He writes that the proposed L4/5 fusion does not have a high rate of success, but there is an 80% chance that an operation may reduce his back pain to make it more manageable for him.
Dr Kam also provides a report to the applicant’s solicitors dated 19 October 2021. In that report Dr Kam refers to his review of an MRI scan taken at Blacktown Hospital which identifies annular tears at L3/4, L4/5 and L5/S1 levels, and a minor central disc bulge at the L4/5 level with close proximity to the left L5 nerve root. He writes that the degeneration in the lumbar spine is not of high significance from his point of view.
Dr Kam writes that the reason he chose the L4/5 level to operate on is that is the level that can potentially cause left sided leg pain, and that he does not believe the other levels are contributing to that leg pain and mechanical back pain.
Dr Kam writes that he is hopeful of the applicant returning to gainful employment with some reduction of pain following the proposed surgery. Dr Kam also writes that his recommendation for surgery “is the last resort/option.”
There is an opinion from a fourth neurosurgeon, Dr Peter Bentivoglio, who is retained on behalf of the respondent.
Dr Bentivoglio refers to all four MRI scans undergone by the applicant, although it is not clear whether he has viewed the films or only the reports. He refers to a disc protrusion at L2/3 and annular tears at L3/4, L4/5 and L5/S1 from his review of the MRI scan dated 20 April 2018. He refers to there being a disc bulge at L2/3 and the same annular tears from the most recent MRI scan dated 1 April 2021.
Dr Bentivoglio opines that his working diagnosis is that the applicant has lower back pain secondary to multilevel degenerative disc disease at four levels with neuropathic left leg pain but no evidence of radiculopathy.
In answer to a question posed as to the diagnosis of injury, Dr Bentivoglio opines:
“My diagnosis is a gentleman with multilevel degenerative disease in his lumbar spine with left neuropathic pain in his leg but no evidence of a radiculopathy.”
Dr Bentivoglio provides the following opinion on the surgery proposed by Dr Kam:
“I think the proposed surgery, which is a fusion at the L4/5 level, will probably not significantly help him at all. The reason I say that is because he has multilevel degenerative disease, and from just choosing to operate at the L4/5, I do not suspect there will be a significant improvement in either his back or his leg pain. There is no evidence of any instability at the L4/5 level, so the chance of him getting any improvement in his back pain or his leg pain, I would give him a 50–60% chance of some improvement, and a 40–50% chance of no benefit at all. The reason I say that is because he has multilevel degenerative disease and operating on and fusing one level will not significantly change or improve the situation.”
There also reports from two pain management specialists who have treated the applicant.
Dr Manohar writes in a report dated 21 February 2019 that he performed diagnostic blocks at the applicant’s L4/5 and L5/S1 levels on 30 November and 14 December 2018, and that the applicant had some pain relief and “shows that these facets are the pain generator.”
Dr Manohar then proceeds to radio frequency procedures of the lumbar spine on 29 March 2019 and 12 April 2019, although the reports from Dr Manohar do not reveal the outcome of those procedures.
A/Professor Boesel initially sees the applicant on 29 October 2020. He records the applicant having a heavy fall off a water tank at work and landing on his buttocks.
A/Prof Boesel writes that he reviewed the medical imaging which “demonstrates changes consistent with the mechanism of injury.” He refers to multiple spondylotic discs, particularly at L3/4, L4/5 and L5/S1 levels. He notes that the L5/S1 facet joint is acutely inflamed.
A/Prof Boesel opines:
“David presents with a classical pain syndrome following an axial loading injury of the lumbar spine. He has mixed pain, including neuropathic pain affecting the back and lower limb on the left, as well as nociceptive facet joint and myofascial pain. The neurogenic features in the legs satisfy the diagnosis of L5 Radiculopathy.”
A/Prof Boesel recommends radio frequency neurotomy denervation for the left cluneal nerve, L5/S1 facet joint and associated injection for the lumbar nerve roots.
In a report dated 21 April 2021, A/Prof Boesel writes that the radio frequency denervation and injections have not been helpful for anything other than on a short term basis. He reviews a repeat MRI scan (presumably the scan dated 1 April 2021) and confirms spondyloses and annular tears at multiple levels that will predominantly produce discogenic pains. A/Prof Boesel recommends a further opinion from another neurosurgeon, Dr Tait, but I understand from Mr Carney that this has not occurred.

Dr McGroder, occupational physician, provided a Medical Assessment Certificate dated 2 March 2020 for the purposes of the applicant’s lump sum claim for permanent impairment.
Dr McGroder found there was a stocking distribution of diminished sensation below the knee level (although he does not state whether that is in regard to one leg or both), but that knee and ankle jerks were normal.
Dr McGroder concludes that the applicant has multifactorial low back pain. He writes that there is a possible discogenic element but no evidence of radiculopathy.
The applicant had undergone two MRI scans of the lumbar spine at the time he was assessed by Dr McGroder. Dr McGroder only refers to the first scan taken on 20 April 2018. However, a Medical Appeals Panel (Michael De La Blanca v Kingsfeld Excavations Pty Ltd [M1-255/20]) which includes Dr Stephenson and Dr Harvey-Sutton, notes both MRI scan reports and states at [37]:
“In the opinion of the medical practitioners on the panel, these radiological reports are consistent with the opinion of the AMS. They do not suggest the existence of nerve root impingement. On the contrary, they explicitly state that there is no “neural impingement.” Assuming they did, however, it would be necessary for the AMS to have found other clinical signs of nerve root impingement before accepting the presence of radiculopathy. The AMS did not record other clinical signs.”

FINDINGS AND REASONS

Mr Carney for the applicant submits that Dr Kam has set out his reasons as to why the L4/5 level is the major problem area for the applicant and how the symptoms from that part of the lumbar spine can be relieved by surgery.
Mr Carney submits that the applicant has tried various forms of conservative treatment, but continues to take strong analgesic medication, and the surgery proposed by Dr Kam gives the applicant a chance of a better quality of life.
Mr Carney submits that the investigations and treatment undertaken by Dr Manohar and the opinion on the cause of the applicant’s lower back pain provided by A/Prof Boesel, support Dr Kam’s conclusion that the applicant’s L4/5 level is the site of the applicant’s main problem in his lower back and where the proposed fusion surgery should be performed.
Mr McMahon for the respondent submits that Dr Kam stands on his own in regard to the site of the applicant’s lower back problems and the need for surgery when compared to three other neurosurgeons.
Mr McMahon furthermore submits that Dr Kam is “wearing a blind fold” in regard to the opinion he provides for a number of reasons, including not being made aware of the applicant having a long history of lower back complaints, not viewing all of the MRI scans which the applicant has undergone, and not being aware of the opinions of Dr Al-Khawaja and A/Prof Davidson.
Mr McMahon also submits that there is a real level of uncertainty as to a positive outcome from the proposed surgery, which is expressed not only by Dr Bentivoglio, but also by Dr Kam.
I would start with the observation that in this jurisdiction it is usual for considerable weight to be given to the opinion provided by a treating specialist if that specialist is properly appraised of the history of a patient’s condition. There is good reason for this because the specialist has the responsibility for deciding appropriate treatment in response to the diagnosis and cause of the patient’s condition. Caution should be exercised if the treatment proposed by a specialist is to be challenged.
I am also mindful of what was said by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 (Rose) at [48A-C]:
“Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.”
The applicant has been suffering with lower back pain and pain extending down the left leg for some four years now and he has attempted a range of conventional conservative treatment without any significant improvement of his symptoms. He remains out of work and is continuing to receive weekly payments, presumably because the respondent accepts that the applicant continues to have no current work capacity.
I do not agree with the submission made by Mr McMahon that Dr Kam stands in isolation in his opinion regarding the site of the applicant’s lower back problems. Dr Manohar identifies the L4/5 and L5/S1 levels as being the sites of the applicant’s lower back pain from diagnostic blocks which he performs in late 2018. Unfortunately, I could not locate any record made by Dr Manohar of the applicant’s response to the radio frequency procedures at those same levels in March and April 2019, which might have provided further confirmation that Dr Manohar considered those levels of the lumbar spine to be the site of the applicant’s lower back problems.
A/Prof Boesel does not specifically identify the L4/5 level as being the main location for the cause of symptoms in the applicant’s lower back, but he does identify that area of the Iumbar spine, which includes the L4/5 level, as being the source of the applicant’s symptoms when he opines that those symptoms satisfy the diagnosis of L5 radiculopathy.

However, both Dr Manohar and A/Prof Boesel are pain management specialists. Additional weight must be given to the opinions of those neurosurgeons who have treated or examined the applicant because of the unique role a neurosurgeon has in deciding if surgery is appropriate and then being able and qualified to perform that surgery.

It is not clear from the material from Dr Al-Khawaja as to what level or levels of the applicant’s lumbar spine that Dr Al-Khawaja considered were disturbed as a result of the work injury. Dr Al-Khawaja notes a disc extrusion at L2/3 from the MRI scan taken at the time of his consultations (which A/Prof Davidson subsequently identifies as the source of the applicant’s symptoms) and annular fissuring at L3/4, L4/5 and L5/S1. He also writes that there was no associated disc protrusion or mechanical neural impingement.
I have already referred to there being no information in the report by Dr Al-Khawaja regarding the epidural injection performed on 6 June 2018 as to what level or levels of the applicant’s lumbar spine were injected. What is apparent from the final report from Dr Al-Khawaja dated 14 July 2018 is that he did not include surgery as a further option, but instead recommended pain management.
Mr Carney submits that the material and opinion provided by A/Prof Davidson is limited because the first report dated 25 May 2020 is provided without an examination of the applicant, does not acknowledge that prior treatment provided to the applicant has not worked, and concentrates on whether the applicant is able to return to work. Mr Carney also submits that the reports from A/Prof Davidson focus on the problem at the L2/3 level without giving due consideration to levels of the spine below that level.
I do not consider that criticism of A/Prof Davidson is fair. The first report from A/Prof Davidson does provide a reasonable summary of the applicant’s past treatment for his lower back. In my view, what is of particular significance is that A/Prof Davidson views the scans of the MRI dated 30 August 2019 and identifies a quite large disc extrusion at L2/3, even though he observes that this pathology is not reported upon by the author of that MRI scan report.
A/Prof Davidson writes that he was not able to view any imaging taken at the time of the injury and therefore recommends “that David be completely re-imaged.” The MRI scan that was taken one month after the injury, but not viewed by A/Prof Davidson, does record the applicant having a L2/3 disc extrusion. The MRI scan report dated 4 August 2020, which is produced following referral by A/Prof Davidson, confirms a moderate size disc extrusion at L2/3, which is the diagnosis made by A/Prof Davidson even though he did not have access to the initial MRI scan which the applicant underwent in April 2018.
A/Prof Davidson did not examine the applicant for the report dated 25 May 2020, but he does see the applicant in person for his next report dated 14 August 2020, although there are no details recorded of an examination of the applicant at this consultation. Nonetheless it is apparent from the reports from A/Prof Davidson that he has provided a cogent explanation for the cause of the applicant’s low back pain, namely that it is based on the L2/3 extrusion.
A/Prof Davidson does not direct any particular attention to the levels of the lumbar spine below L2/3, other than to note very minor dehydration of those discs and a small annular tear at L3/4 which he considered was probably not of any clinical significance. A/Prof Davidson does not identify any pathology from those levels as being the cause of applicant’s symptoms as a result of his work injury.
In my view, considerable weight must be given to the opinion from A/Prof Davidson because of the explanation he provides regarding the causes of the applicant’s symptoms. That leads A/Prof Davidson to opine that the applicant now suffers from “chronic non-anatomical pain” and there is no surgical solution to the applicant’s pain.
Dr Bentivoglio has the benefit of viewing all four MRI scans. It might be that Dr Kam also viewed all four MRI scans, but he only refers to a scan taken at Blacktown Hospital, which is presumably the scan dated 1 April 2021, although the first scan taken in April 2018 was also performed at Blacktown Hospital.
Dr Bentivoglio does not place any significance upon any pathology at L2/3. He refers to there being a protrusion at that level, rather than an extrusion, from his review of the MRI scan dated 20 April 2018. He refers to there being a disc bulge at that level from the most recent MRI scan dated 1 April 2021, and that this is a lot smaller with no nerve root compression.
Dr Bentivoglio identifies a different cause of the applicant’s symptoms to that of A/Prof Davidson. Dr Bentivoglio opines that the applicant has lower back pain secondary to multilevel degenerative disc disease at four levels (presumably from L2/3 to L5/S1) with neuropathic left leg pain but no evidence of radiculopathy. Dr Bentivoglio does not consider that performing surgery at one level is going to significantly help the applicant because of the remaining degeneration above and below that level of the lumbar spine.
The opinion of Dr McGroder that the applicant has multifactorial low back pain with a possible discogenic element but no radiculopathy, and which the Medical Appeals Panel did not find necessary to disturb, is similar to the opinion expressed by Dr Bentivoglio.
Dr Kam identifies the main cause of the applicant’s symptoms to be at the L4/5 level because he considers that this is the level that is potentially causing left sided leg pain, and he does not believe other levels of the lumbar spine are contributing to that leg pain and mechanical back pain. He dismisses the significance of degeneration in the applicant’s lumbar spine in relation to the surgery which he has proposed.
Judge Burke said in Rose at [48A-C] in regard to deciding whether medical treatment is reasonably necessary as a result of injury:
“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.”
The difficulty which the applicant has in this dispute is being able to establish that the proposed surgery is relevant and appropriate given the different opinions of the neurosurgeons as to the causes of the applicant’s symptoms and whether surgery should be performed at all.
That Dr Kam stands on his own in regard to his opinion as to the cause of the applicant’s symptoms and the recommendation for surgery does not mean that the applicant’s claim must fail. I readily accept that medical experts will have different views on the cause or causes of a patient’s condition and whether a particular medical procedure or treatment should be performed. I also reiterate my earlier observation that particular regard should be given to the clinical judgment of a treating specialist.
However, I cannot be satisfied that the surgery proposed by Dr Kam is relevant and appropriate, and thereby reasonably necessary, when there are other opinions provided which cast real doubt as to whether an L4/5 fusion should be performed.
There is the opinion of A/Prof Davidson, who does not consider there is any problem at the L4/5 level. He provides a good explanation as to why the L2/3 level was the cause of the applicant’s symptoms following his work injury. A/Prof Davidson does not consider the levels below L2/3 to be of any significance.
Dr Kam has not given any consideration to pathology at L2/3, which is referred to in three MRI scan reports and is identified by A/Prof Davidson as having particular significance.
There is the opinion of Dr Bentivoglio, who considers that the applicant suffers from multilevel degenerative disease, and therefore does not believe there should be surgery performed at one level only.
Dr Kam has been provided with the opinion of Dr Bentivoglio. However, Dr Kam has not addressed the issue identified by Dr Bentivoglio of what benefit there is likely to be for a fusion at only one level when the applicant has multilevel degeneration, other than to merely dismiss that issue as not being of high significance.
The issue of widespread degeneration in the lumbar spine relates not only to the relevance and appropriateness of the proposed surgery, but also to the actual or potential effectiveness of such surgery. Dr Bentivoglio provides legitimate reasons as to why a fusion at one level will not significantly change or improve the applicant’s condition.
There is also the lack of any reference to disc pathology at and around the L4/5 level from those neurosurgeons who treated the applicant at a time closer to the work injury than when Dr Kam sees the applicant. While it is not certain at what level of the lumbar spine
Dr Al-Khawaja placed an epidural injection, he nonetheless states that the applicant has no associated disc protrusion or mechanical neural impingement in his lumbar spine. A/Prof Davidson opines in August 2020 that there is no longer any radiological evidence of nerve root compression and that the applicant now has chronic non-anatomical pain.
Dr Kam does not explain how the pathology which he now finds at L4/5 is a result of the applicant’s work injury when there was no indication of such pathology in the treatment provided by two other neurosurgeons at a time closer to the applicant’s work injury.
Mr Carney refers to some findings made by Dr McGroder when he assessed the applicant for permanent impairment which were indicative of some radiculopathy and which would support the disc pathology identified by Dr Kam. However, those findings appear to be relatively minor and were not sufficient for the applicant to meet the criteria for the category of DRE III.
Dr McGroder was not able to place his opinion any higher than the applicant having “a possible discogenic element.” Dr McGroder was not prepared to identify what disc or discs of the applicant’s lumbar spine were involved. I therefore do not consider the findings of Dr McGroder assist the applicant in his task of establishing that the L4/5 level requires the repair proposed by Dr Kam.
Given the opinions of A/Prof Davidson and Dr Bentivoglio, and the clinical findings from the history of treatment by neurosurgeons before Dr Kam becomes involved some three years after the work injury occurred, I cannot be satisfied that the applicant has discharged his onus of establishing that the surgery proposed by Dr Kam is reasonably necessary as a result of the injury he sustained on 22 March 2018.
There will therefore be a determination that the L4/5 fusion proposed by Dr Kam is not reasonably necessary as a result of the injury sustained by the applicant on 22 March 2018.

[2022] NSWPIC 94

4 March 2022