El Kassab v The Thermo Mechanix Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	El Kassab v The Thermo Mechanix Pty Ltd [2025] NSWPIC 383
APPLICANT:	Mohammad El Kassab
RESPONDENT:	The Thermo Mechanix Pty Ltd
MEMBER:	Anne Gracie
DATE OF DECISION:	6 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim for section 60 expenses; lumbar surgery; consideration of “worker” and reasonable necessity of medical and treatment expenses; Diab v NRMA Limited, Australian Timber Workers Union v Monaro Sawmills Pty Ltd, Jones v Dunkel, Vezitis v Belmont Timbers (NSW) Pty Ltd, UPVC Windows Solutions Pty Ltd v Workers Compensation Nominal Insurer (icare), Rose v Health Commission (NSW), and Stevens v Brodribb Sawmilling Company considered; Held – at the time of his injury the applicant was a worker within the meaning of section 4 of the 1998 Act in the employ of the respondent; the treatment proposed and the associated expenses are considered reasonably necessary treatment expenses pursuant to section 60 of the 1987 Act.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. At the time of his injury on 23 March 2021, the applicant was a worker within the meaning of s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in the employ of the respondent. 2. The treatment proposed by Dr McKechnie and the associated expenses are considered reasonably necessary treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) The Personal Injury Commission orders: 3. Award in favour of the applicant against the respondent pursuant to s 60 of the 1987 Act for future medical expenses in respect of the surgery proposed by Dr McKechnie in the form of a right L4/5 partial laminectomy, foraminal microdiscectomy with extra foraminal L4 rhizolysis together with associated expenses as a result of injury sustained by the applicant on 23 March 2021 during the course of his employment with the respondent. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Mohammad El Kassab, (the applicant) is 43 years old.
In 2005, he commenced his own business as a sub-contractor for construction companies. He was a sole trader operating under his own ABN. He describes his work as a sole trader performing the following work:
·        handyman work
·        tiling
·        maintenance and
·        waterproofing.
He would perform subcontracting jobs with various companies including Thermo Mechanix Pty Ltd, (the respondent).
In March 2021, two to three days before his workplace injury on 23 March 2021, he was contacted by Taha Kassab, the director of the respondent who allegedly offered him part time employment.
The applicant says he commenced employment with the respondent on 23 March 2021, the same day he sustained his workplace injury.
The workplace injury occurred when the applicant and a co-worker were carrying an air- conditioner through a roof space to install the air-conditioner. During this process, the applicant lost balance and his left foot fell between the roof rafters and he fell through the gyprock ceiling below. He was prevented from falling all the way through onto the second floor when his right leg became suspended on a rafter causing a twisting injury to his right ankle. He then fell onto his left shoulder which hit another rafter and then the air-conditioning unit fell with its weight onto to him.
He experienced pain in his left shoulder, lower back, neck and both ankles.
He saw his general practitioner on 25 March 2021 and reported the injury. He obtained a certificate of capacity from his general practitioner on 18 August 2021 which certified unfit for work.
He lodged a claim for workers compensation with the respondent. The claim was accepted up until 2 February 2022 when the claim was declined.
He has come under the care of Dr Reiter, a rheumatologist and Dr McKechnie, an orthopaedic surgeon.
He has undergone numerous injections into his back that provided temporary relief. He has been prescribed physiotherapy and medication and rest, all with minimal effect. He has tried chiropractic treatment.
In October 2023, his back condition deteriorated. He attended Liverpool Hospital on
3 October 2023. He consulted Dr McKechnie on 16 November 2023. At that consultation Dr McKechnie recommended surgery in the form of a right L4/5 partial laminectomy, foraminal microdiscectomy with extra foraminal L4 rhizolysis. Dr McKechnie provided a request for approval for the surgery to the applicant to give to his legal representative. Dr McKechnie was aware that the applicant’s claim for compensation had been declined.
On 16 February 2024, the applicant’s legal representatives sought a review of the respondent’s decision to decline liability for the claim. They provided the respondent with a copy of the surgery approval request and a report from Dr McKechnie dated 16 February 2024.
On 7 August 2024, the respondent issued a review outcome which maintained the denial of liability and specifically declined the surgery recommended by Dr McKechnie.
On 24 April 2025, proceedings were commenced in the Personal Injury Commission (Commission) by the applicant. The applicant requests an order that the respondent pay for the costs of and incidental to the surgery proposed by Dr McKechnie in accordance with
s 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Was the applicant a worker employed by the respondent at the time of his injury on 23 March 2021 pursuant to s 4 of the 1998 Act or in the alternative, was the applicant a deemed worker within the definition of clause 2 schedule 1 of the 1998 Act.
(b) Is the surgery proposed by Dr McKechnie in the form of a right L4/5 partial laminectomy, foraminal microdiscectomy with extra foraminal L4 rhizolysis together with associated expenses, reasonably necessary pursuant to s 60 of the 1987 Act and arising out of the injury on 23 March 2021.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference /arbitration hearing before me on 31 July 2025.
Mr Greg Schipp, counsel instructed by Ms Anita Pershad, solicitor and Mr Ali Al Khubifawi, law clerk, appeared for the applicant, Mohammad El Kassab, who was present with his wife, Kamleh El Kassab. Mr Daniel Stiles, counsel instructed by Ms Sevastelis, solicitor, appeared for the respondent. Mr Massih from Icare was also in attendance.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    Application to lodge additional documents and attached documents filed by the applicant on 23 June 2025, admitted into evidence by consent, and
(d)    Application to lodge additional documents and attached documents filed by the respondent on 28 July 2025 admitted into evidence by consent.

Oral evidence

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

Applicant’s evidence

The applicant relies on two statements dated 23 April 2024 and 22 June 2025. The applicant relies on three independent medical reports from Dr Bodel dated 5 January 2023, 15 April 2024 and 28 May 2024. The applicant also relies on a number of reports and clinical notes from his treating doctors. The applicant relies on numerous radiology reports. The applicant relies on a discharge summary from Liverpool Hospital dated 3 October 2023. I have considered all of this evidence together with submissions from counsel.

Respondent’s evidence

The respondent relies on two s 78 notices dated 19 January 2022 and 18 September 2023 and a s 287A review notice dated 7 August 2024. The respondent also relies on two independent medical reports from Dr Diebold dated 17 December 2021 and 27 July 2023. The respondent relies on a treating doctor’s report from Dr Reiter dated 8 October 2021 and a report from the applicant’s general practitioner Dr Al Aukidy dated 13 October 2021 together with two certificates of capacity from Dr Al Aukidy dated 18 August 2021 and
18 September 2021. The respondent also relies on an ABN search on the applicant, Mohammad El Kassab dated 18 September 2023. The respondent also relies on the applicant’s tax returns for the financial years ending 2020 and 2021 and notices of assessment for financial years ending 30 June 2020, 30 June 2021 and 30 June 2022 together with a tax estimate for the financial year ending 30 June 2022. The respondent also relies on the applicant’s bank records which pre and post-date the date of injury.

Applicant’s submissions

The applicant submits that the applicant is a worker pursuant to s 4 of the 1998 Act.
The applicant submits that the reasons relied on by the respondent in the s 78 Notice dated 18 September 2023 (page 3 of the reply) claiming the applicant was not a worker or a deemed worker are based on a comment made by Dr Diebold in his report dated
17 December 2021 (page 7 of the reply) and an ABN search (page 40 of the reply). The applicant submits that this is not reliable evidence upon which to base the decision that the applicant was not a worker. Pursuant to regulation 38 of the Workers Compensation Regulations 2016, a s 78 notice must contain a statement identifying all of the documentation relied upon by the claimant and by the employer in connection with the case. Apart from the report from Dr Diebold and an ABN search, there is no further evidence relied on by the respondent to support the respondent’s claim that the applicant was not a worker within the definition of s 4 of the 1998 Act.
The applicant submits that the respondent has not provided any statement evidence to contradict the applicant’s assertion that he was an employee of the respondent.
The applicant took me to the two statements from the applicant which the applicant submits establish the necessary indicia of employment as set down by the decision of Stevens v Brodribb Sawmilling Company 1986 160 CLR 16 (Stevens).
In relation to the reasonable necessity of the surgery proposed by Dr McKechnie, the applicant provided a summary of the reports from Dr McKechnie. The applicant submits that Dr McKechnie was initially in favour of conservative treatment. However, in the applicant’s submission and supported by the reports from Dr McKechnie, the applicant’s condition did not improve and continued to deteriorate. Following an attendance at Liverpool Hospital in October 2023 and an update MRI scan of the lumbar spine carried out on 9 October 2023, when he was reviewed by Dr McKechnie in November 2023, the applicant submits Dr McKechnie formed the view that the applicant should undergo surgery.
The applicant submits that the report from Dr Diebold dated 27 July 2024 (page 17 of the reply) upon which the respondent denied liability for the applicant’s surgery is unreliable as Dr Diebold did not have the reports from Dr McKechnie or the MRI scan dated 9 October 2023 and is therefore of little assistance to me. The applicant also points out that Dr Diebold does not address whether the surgery proposed by Dr McKechnie is reasonably necessary.
The applicant submits that the opinions expressed by Dr McKechnie and Dr Bodel should be preferred.
The applicant submits that in line with the decision of Roche DP in the matter of Diab vNRMA Limited [2014] NSWWCCPD 72, I should find that the proposed surgery is reasonably necessary.

Respondent’s submissions

The respondent submits the onus is on the applicant to establish that he is a worker or a deemed worker.
The respondent submits the applicant has had an ABN since 2005.
The respondent submits that the applicant’s 2021 income tax return did not disclose a group certificate (PAYG payment summary) from the respondent.
The respondent submits the applicant’s banking records disclose evidence of earnings as a sole trader before and after the date of accident.
The respondent submits that the applicant does not meet the definition of a deemed worker.
In relation to the reasonable necessity of the proposed surgery the respondent submits the opinion expressed by Dr Diebold should be preferred. The respondent submits that the proposed surgery does not result from the workplace injury.
In his first report dated 17 December 2021, Dr Diebold formed the opinion that the applicant had sustained a soft tissue injury which had resolved. Dr Diebold opined that there was no plausible diagnosis to explain the applicant’s persisting symptoms that could be related to the injury of 23 March 2021.
The respondent submits that there is no explanation for the sudden deterioration in the applicant's condition which occurred in October 2023.
The respondent notes the applicant had continued to do some work as a subcontractor which is evidenced by his financial records and had also undertaken work as a cleaner.
The respondent submits that I would not be convinced, on the evidence, that the applicant was either a worker or a deemed worker at the time of his accident. The respondent submits that I would prefer the opinion expressed by Dr Diebold that the applicant sustained a soft tissue injury that has resolved and in the circumstances the surgery proposed by Dr McKechnie is not reasonably necessary or related to the workplace accident on 23 March 2021.

Applicant’s submissions in reply

The applicant submits that it does not rely on the definition of deemed worker but rather maintains the applicant was a worker employed by the respondent.
The applicant points out that the respondent has had the opportunity for at least two years to obtain evidence to support the argument that the applicant was not employed by the respondent. No such evidence has been presented.
The applicant submits that the 2021 tax return does not assist. The applicant agrees that there is no reference to a group certificate from the respondent in the 2021 tax return however as the applicant only worked for the respondent as an employee for less than half a day and he was only paid $250.00 the applicant submitted that this may not attract tax. The applicant submits that there is a deposit into the applicant’s bank account of $250.00 from the director of the respondent, Taha Kassab on 25 March 2021 (page 150 of the application to lodge additional documents filed by the respondent (ALAD R). The applicant submits this would represent the applicant’s pay for 23 March 2021.
The applicant submits that the bank statements do not assist the respondent. The applicant has advised that he was employed by the respondent on a part time basis and continued to do work as a sole trader.
In reply to the respondent’s submissions, the applicant states that the reports from Dr McKechnie clearly show an ongoing deterioration in the applicant’s lumbar spine and his presentation at Liverpool Hospital was the result of this continuing deterioration of his lumbar spine.
The applicant submits that there is no evidence of an intervening incident, nor evidence that he sustained any further injury after 23 March 2021 when performing work as a cleaner or sub-contractor.

FINDINGS AND REASONS

Issue 1 Worker

I have considered the evidence and the submissions by both parties and I have formed the view on the evidence before me that the applicant was a worker employed by the respondent at the time of his injury on 21 March 2021. I do so for the following reasons.
I accept the statement evidence of the applicant. I accept the applicant as a witness of truth. No application to cross examine the applicant was made by the respondent.
Importantly, in relation to the issue of worker, the applicant has provided the following evidence.
In his first statement dated 23 April 2025 (page 2 of the ARD), the applicant states “At the time of the injury, I was employed as a trades’ assistant working part-time for Thermo Mechanix Pty Ltd. The company installs air-conditioning units and refrigerators. I had previously worked for them as a subcontractor but then became a permanent employee.’
The first certificates of capacity dated 18 August 2021 (page 32 of the reply) also provides evidence that the applicant was an employee of the respondent. The applicant has completed the first section of the certificate of capacity and put the name Taha Kassab together with Mr Kassab’s mobile phone number on the first page of the certificate providing the respondent with his employer’s name and contact phone number. The respondent therefore had the contact name and mobile phone number for the respondent in the event that they wished to check whether the applicant was employed by the respondent.
This evidence is supported by the applicant's bank statements. Prior to the workplace accident, the applicant’s financial records disclose several deposits into his bank account from Taha Kassab, the director of the respondent.
The applicant goes on to describe his duties with the respondent as general handyman work and the installation of air conditioning units.
The s 287A review notice from the respondent specifically declining liability for the proposed surgery dated 7 August 2024 (page 11 of the ARD) did not raise the issue of “worker”.
On 29 May 2025 the respondent's legal representatives filed a reply in the Commission. Annexed to the reply was a s 78 notice dated 18 September 2023. It would appear that the
s 78 notice dated 18 September 2023 was in relation to a permanent impairment claim. It was in this notice that the respondent raised the issue of “worker”. At the preliminary conference on 3 June 2025, the following directions were made: “3. The applicant is to file and serve a supplementary statement/witness statement addressing the issue of “worker” raised by the respondent in the s78 notice dated 18 September 2023 within 14 days. 4.The respondent is to file and serve any evidence they seek to rely on in relation to the issue of “worker” within 28 days”.
Following the preliminary conference, on 23 June 2025 the applicant filed by way of an ALAD a further statement dated 22 June 2025 addressing the issue of “worker”.
In that statement the applicant provided the following further evidence in relation to the issue of “worker”.
The applicant advises that approximately two to three days prior to the workplace injury he was contacted by phone by Taha Kassab, the director of the respondent who offered him employment.
The applicant advises that he was to be employed on a part time basis working two to three days per week, eight hours per day. He was to be paid $350.00 a day and to be paid on a weekly basis.
The applicant advises that his duties were to involve general handyman work and the installation of air conditioning units.
The applicant advises there was no written contract and he was offered the job by way of a verbal agreement.
On 22 March 2021 the respondent contacted the applicant advising him that there was an air conditioning installation job on 23 March 2021 at 28A Garling St Lane Cove. The applicant was advised that one of his coworkers would pick him up from his home and take him to the job site.
On 23 March 2021 the applicant was picked up by a coworker, Abdul, and arrived at the job site between 7.00am and 7.30am. Taha Kassab was already present at the job site

The applicant advises that a toolbox talk was conducted discussing potential safety concerns and Taha Kassab provided an explanation of what the job required and what needed to be done.
The applicant commenced his shift at approximately 8.00am.
The applicant advises that at all times he received directions and instructions from Taha Kassab.
The applicant advises that all tools and equipment were provided by Taha Kassab. See decision of Australian Timber Workers Union v Monaro Sawmills Pty Ltd [1980] 29 ALR 322
The applicant confirms that the workplace accident occurred on his first day of employment with the respondent. The applicant confirmed that the workplace accident occurred between 11.00am and 12.00 noon.
The applicant confirms that on 25 March 2021 he received $250.00 for the half day work which he performed for the respondent.
I am satisfied that the information provided by the applicant in his statement support the necessary indicia of employment set out in in the decision of Stevens referred to above. The respondent have provided no statement evidence to the contrary.
I accept the applicant’s submission that the absence of any direct evidence from the respondent by way of statements or otherwise denying that the applicant was an employee of the respondent supports the applicant’s claim that he was an employee of the respondent. There is also no evidence before me explaining why such evidence has not been obtained, in the event difficulties were experienced in gathering this evidence.
As the applicant has submitted, the respondent has had almost two years since the s 78 notice was issued raising the issue of worker on 18 September 2023, to gather evidence disputing the applicant’s claim that he was employed by the respondent.
I further note the applicant’s claim for compensation was initially accepted by the respondent up until 19 January 2022 when the first s 78 notice was issued by the respondent. I also note that the issue of “worker” was not relied upon by the respondent at this time, despite the fact the s 78 notice post-dated the report from Dr Diebold dated 17 December 2021.
I do not accept the respondent’s submission that at the time the respondent issued the first s 78 notice on 19 January 2022 it did not have the history taken by Dr Diebold in his report of 27 July 2023 that at the time of his injury the applicant was working as a labourer and handyman for the respondent and this was his own business. The respondent submits that is why the issue of “worker” was not placed in dispute in the first s 78 notice. Dr Diebold recorded a similar background in his earlier report dated 17 December 2021 which predated the first s 78 notice.
The respondent has based the denial of liability for the claim on the basis that the applicant was not a “worker” employed by the respondent on a comment recorded in the report of Dr Diebold dated 17 December 2021 and repeated in his report of 27 July 2023. The comment in the first report reads as follows, “He was working for Thermo Mechanics at the time of injury. He had his own business and had contracted himself to that company for a job that was expected to take three or four days. This was the first day of that job.” In the later report Dr Diebold repeats “Mr El Kassab is a 41 year old man who at the time of injury was working as a labourer and handyman for Thermo Mechanix. This was his own business, and he contracted himself to that company for a job that was expected to take three or four days. This was his first day on that job.”
Both of these comments recorded by Dr Diebold appear under the heading “Background”. It is not clear who provided this information to Dr Diebold.
Furthermore, the background recorded by Dr Diebold in his two reports is inconsistent. Dr Diebold records he was working for the respondent and it was his first day of that job. This is consistent with the applicant’s evidence. Dr Diebold then goes on to state that he was working with Thermo Mechanix and this was his own business.
At this point I refer to the independent medical report from Dr Bodel dated 5 January 2023 (page 17 of the ARD). This report was prepared before the s 78 notice dated 18 September 2023 in which the respondent denied that the applicant was an employee of the respondent at the time of his injury.
Dr Bodel notes the following under the heading “Occupational History”, “…this gentleman has been employed as a trades assistant at Therma Mechanics... He had in the past worked for them as a subcontractor then became a permanent employee as far as he was aware”.
Under the heading “History Relating to the Injury”, Dr Bodel notes “that he and his boss had gained access through an access hole in the ceiling.”
The respondent also denied that the applicant was an employee of the respondent because he had his own ABN and had been registered as a sole trader since 1 October 2005.
I accept the applicant’s submission that the fact the applicant had an ABN and was registered as a sole trader takes the issue of worker no further. The applicant has given evidence confirming that he was a sole trader and had an ABN but, on the applicant’s evidence, in addition to his work as a sole trader, he had agreed to work for the respondent two to three days per week on a part time basis as an employee, commencing on 23 March 2021.
I further note that in addition to the two year period the respondent had since the s 78 notice was issued on 18 September 2023, raising the issue of “worker”, the respondent also had the further statement from the applicant specifically addressing the issue of worker since 23 June 2025, more than a month before the conciliation/arbitration date to obtain evidence from the respondent to contradict the information in the applicant’s further statement.
Apart from tax documents and bank records, the respondent has not provided a statement from the respondent disputing the contents of the applicant’s further statement.
I accept the applicant’s submission that an inference can be drawn in relation to the absence of direct evidence from the respondent, see Jones v Dunkel, [1959] HCA 8 (1959) 101 CLR 298 (Jones)
I also accept the applicant’s submission that it is not Dr Diebold’s role to address the legal employment status of the applicant at the time of his workplace accident.
In relation to the respondent’s submission that the absence of a reference to a group certificate (PAYG payment summary) in the applicant’s 2021 tax return from the respondent provides the requisite proof that the applicant was not employed by the respondent at the time of his workplace accident. This submission would have carried more weight if the respondent had provided a statement confirming that it never issued a group certificate (PAYG payment summary) to the applicant as he was not an employee. I do not have this evidence. In his statements, the applicant has neither confirmed nor denied that he received a group certificate from the respondent. He has however acknowledged that he received $250.00 from the respondent on 25 March 2021 which is confirmed by his bank account and in his further statement and would appear to be in line with the pay rate agreed to between the applicant and the respondent for the work he performed on 23 March 2025 before his workplace accident.
I accept the applicant’s submission that the decision of Armitage J in the matter of Vezitis vBelmont Timbers (NSW) Pty Ltd [1997]14 NSWCCR407 (Vezitis) is of assistance to me in relation to this issue. In that matter Armitage J was addressing the issue of “worker” in relation to a worker who had, on paper, entered into a partnership agreement with his employer however the employer had not provided evidence in relation to this issue. Armitage J opined that “Mrs Dalton was not called in the respondent's case and the same applies to Mr O'Brien, the accountant to which I have referred a moment ago, and whilst the Court of Appeal had recently emphasised that it is advisable to be careful about inferences pursuant to the principles in Jones v. Dunkel, it is the fact that these persons did not give evidence contradicting what the applicant said about his dealings with them at various times, and for that reason I am, it seems to me, more readily able to accept what the applicant said in relation to his dealings with those persons in the absence of such contradicting evidence.”
I also note the decision of DP Snell in the matter of UPVC Windows Solutions Pty Ltd v Workers Compensation Nominal Insurer (icare) [2023] NSWPICPD 11. In that decision, DP Snell held “It does not flow that, because a person previously worked as a self-employed contractor, the person will not later be engaged by a different entity pursuant to a contract of employment. The facts, in any individual circumstance, will require consideration of their merits.”
In light of the above, I am of the view that the applicant was an employee of the respondent and has satisfied the definition of “worker” pursuant to s 4 of the 1998 Act.

Issue 2 Reasonable necessity of medical treatment

I have considered the evidence and the submissions by both parties and I have formed the view on the evidence before me that the right L4/5 partial laminectomy, foraminal microdiscectomy with extra foraminal L4 rhizolysis surgery proposed by Dr McKechnie is reasonably necessary and arises out of the injury the applicant sustained to his lumbar spine during the course of his employment with the respondent on 23 March 2021. I do so for the following reasons.
I accept the applicant’s submission that the medical opinions from Dr McKechnie and Dr Bodel are to be preferred over the opinion of Dr Diebold.
There is no dispute between the parties that the applicant injured his lumbar spine during the course of his employment with the respondent on 23 March 2023.
The respondent submits the lumbar injury the applicant sustained to his lumbar spine was a soft tissue injury that should have resolved. This submission is based on the reports from Dr Diebold. I do not accept Dr Diebold’s opinion for the following reasons.
Dr McKechnie first saw the applicant on 30 November 2021. In his report with respect to this attendance, Dr McKechnie notes the following (page 225 of the ARD):
“He suffered a work-related injury on 23 March 2021 when he fell through a roof whilst installing ducted air conditioning. Following the incident he has complained of persistent pain in several areas including the neck, left shoulder, intimately radiating through both arms with sensory disturbance, worse on the right side, lower back pain, bilateral hip and buttock pain and pain in the right ankle.
The MRI demonstrates small disc protrusions and disc desiccation at L4/5 and L5/S1 without thecal sac or nerve root impingement…
I have discussed the MRI findings and treatment options but I would currently recommend non operative treatment. I have commenced him on a trial of Lyrica. I would like him to continue with physiotherapy. I will review his progress again in six weeks.”
At this point I note that numerous reports from Dr McKechnie that are in the ARD are dated
8 February 2024. The parties agree that this is an administrative/computer error and the date of the report is to be identified from the body of the report.
The applicant then took me chronologically through the numerous reports produced by Dr McKechnie in his clinical notes which appear in the ARD. The reports are important as they record ongoing persistent pain and no improvement despite a number of different types of medication and treatment modalities. The report in respect of the applicant’s attendance on 16 February 2023 recorded an increase in pain. (page 221 of the ARD). The report in respect of the applicant’s attendance on 23 March 2023 recorded persistent pain but at that time, no significant radicular pain and no obvious neurological deficits. Dr McKechnie confirmed his opinion that he would not recommend operative treatment at this time based on the MRI findings. (page 220 of the ARD).
At the applicant’s review with Dr McKechnie on 16 October 2023 (page 218 of the ARD), Dr McKechnie takes the following history from the applicant:
“I last reviewed him three months ago. He now presents with a three week history of early sudden, severe pain extending through the right lower back, the buttock and down the right leg to the anterior tibial region in the course of the foot consistent with a L4 or L5 radiculopathy. There is sensory disturbance in this area although no weakness. He is walking with a visible antalgic gate due to the pain. He was reviewed at his District Hospital and given Endone. He's currently taking Targin, Paracetamol and Lyrica.
A recent MRI demonstrates several disc protrusions but the clinically significant site is a moderate right L4/5 foraminal disc protrusion with a fragment compressing the L4 nerve root in the exit foramen.
I have discussed the MRI findings and treatment options. I understand he is travelling to Lebanon in 2 weeks and I have therefore referred him for a CT guided right L4 perineural cortisone injection…. I will review his progress again following his return to Sydney if there has been no improvement.”
At the applicant’s review with Dr McKechnie on 16 November 2023 (page 217 of the ARD), Dr McKechnie takes the following history from the applicant:
“Mr Mohammed El Kassab was reviewed again on the 16th of November 2023. Unfortunately the CT guided right L4 perineural cortisone injection has not relieved the severe radicular pain in the right leg. Previous MRI findings demonstrated a moderately large foraminal and extra foraminal right L4/5 disc protrusion severely compressing the L4 nerve root. He has had to cancel his trip to Lebanon as a consequence of the pain.
I have again discussed the diagnosis, natural history and remaining treatment options. Although I have given him a referral for another CT guided right L4 perineural cortisone injection I have recommended he proceed with surgery given the impressive MRI findings and failure of conservative management. Surgically I would recommend a right L4/5 partial laminectomy, foraminal microdiscectomy with extra foraminal L4 rhizolysis. I would estimate an 80 to 85% chance of improvement in the leg pain although I have emphasised that numbness and lower back pain may persistent (sic). I have discussed the risks including but not limited to a 1 in a 1000 risk of paralysis or other serious complication and a 5% risk of infection, haemorrhage, worse pain, increased numbness, weakness/foot drop, CSF leak, sphincter disturbance and 5% risk of recurrence requiring further surgery…”
The applicant then took me to the clinical notes from Liverpool Hospital which confirm the attendance recorded by Dr McKechnie (page 194 of the ARD). The applicant points out that the clinical notes from the hospital confirm that there was no associated trauma to explain the symptoms the applicant was experiencing on presentation. I accept that this is consistent with the reports from Dr McKechnie which predate the attendance at Liverpool Hospital. In the absence of any other explanation for the increase in the applicant’s symptoms I find that the deterioration in the applicant’s condition in October 2023 was causally related to the original trauma to his lumbar spine on 23 March 2021.
The respondent submits that neither Dr McKechnie nor Dr Bodel explain why the applicant’s condition deteriorated so significantly in October 2023. The respondent suggested that it may be due to an intervening cause. The respondent points out that in the Liverpool Hospital notes, the doctor has recorded that the applicant “Usually works as a tiler but was on leave for 10 days prior”. The respondent also noted that the applicant had commenced doing some work as a cleaner in approximately May 2023 according to the report from Dr Diebold dated 27 July 2023 (page 17 of the Reply). There is however no history of any intervening incident or accident recorded in the clinical notes or the medical reports before me and I reject the respondent’s submission.
I accept the applicant’s submission that the “natural history” recorded by Dr McKechnie on
16 November 2023 refers to the decline in the applicant’s lumbar spine since the workplace injury. Dr McKechnie also notes that “conservative management has failed”. Dr McKechnie has been treating the applicant since 30 November 2021. According to his reports he has seen him on a regular basis since then. In the event that there was an intervening cause for the applicant’s decline, Dr Mc Kechnie would have recorded this in his notes or reports.
The applicant states that he has never been involved in any prior work injuries or car accidents (page 2 of the ARD). There is no evidence before me of any pre-existing condition in the lumbar spine. Dr Bodel confirms this (page 19 of the ARD). Dr Diebold confirms this (page 38 of the ARD). The clinical notes from the applicant’s general practitioner, Dr Al Aukidy disclose a prior cervical spine condition in 2020. The only reference to a prior back complaint is at an attendance on 18 September 2020 where Dr Al Aukidy has recorded “chroic (sic) back pain and neck pain stiffness history of kyphosis no abnormal neuro signs.” The applicant was not prescribed any pain relief medication or referred for radiological investigation at that time (page 64 of the ARD). I find this was a minor back issue not requiring treatment or specialist referral. Dr Al Aukidy’s clinical notes record the applicant’s attendance with him on 25 March 2021 “pain post fall while lifting heavy object limited movement shoulder and lower back.”
I accept the applicant’s submission that the opinion expressed by Dr Diebold in his most recent report dated 27 July 2023 (page 17 of the reply) is unreliable as he did not have available to him the most recent MRI scan undertaken on 9 October 2023 nor the series of reports from Dr McKechnie documenting the decline in the applicant’s lumbar spine since
23 March 2021. This is critical as the MRI scan of 9 October 2023 was the radiological study relied on by Dr McKechnie to alter his previously conservative approach to treatment to his opinion that surgery was now necessary.
I also accept the applicant’s submission that the applicant did receive temporary relief from his back pain after he had cortisone injections into his spine. It is unlikely that the applicant would have derived any benefit from the injections if he only had a soft tissue injury as opined by Dr Diebold.
I note Dr Diebold recorded that the applicant demonstrated inconsistencies when he performed numerous tests and felt that the applicant was overreacting. In his report dated
15 April 2024, Dr Bodel explains that the applicant’s presentation was “somewhat inconsistent” but stated that “I do accept genuine pathology in the lower part of the back confirmed on the MRI scan abnormalities in October 2023 (page 31 of the ARD).
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:
i) “3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
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.
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:
i) “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.
ii) 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 Act 1919 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
iii) 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:
(b)the appropriateness of the particular treatment;
(c)the availability of alternative treatment, and its potential effectiveness;
(d)the cost of the treatment;
(e)the actual or potential effectiveness of the treatment, and
(f)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.”
I find that the applicant has satisfied the criteria of reasonableness in relation to the surgery proposed by Dr McKechnie. In his report dated 16 February 2024 Dr McKechnie estimates that the applicant would have an 80 to 85% chance of improvement in the leg pain although numbness and lower back pain may persist. The applicant has tried a conservative approach for over four years which has not been successful. He has tried chiropractic treatment, physiotherapy, cortisone injections, different types of medication and rest. I was advised at the preliminary conference and at the arbitration hearing that the applicant remains on the public hospital list for the surgery proposed by Dr McKechnie. Dr McKechnie has provided details of the cost of the treatment which the respondent has not disputed. Dr McKechnie has also advised the actual or potential effectiveness of the treatment. I accept that Dr McKechnie is in the best position to advise the applicant in relation to the surgery. Dr McKechnie initially took a conservative approach to the applicant’s treatment however as the applicant’s condition continued to deteriorate Dr McKechnie has formed the opinion that operative treatment is necessary. I accept this opinion.
In his supplementary report dated 8 May 2024 Dr Bodel considers the MRI scan of 9 October 2023 and the report of Dr McKechnie dated 14 February 2024. He notes Dr McKechnie has identified hard signs of radiculopathy. He notes that Dr McKechnie has recommended surgery. Dr Bodel expresses the opinion that the surgery is reasonably necessary in his view (page 35 of the ARD).

SUMMARY

In light of the above I make the following findings:
(a)At the time of his injury on 23 March 2021, the applicant was a worker within the meaning of s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in the employ of the respondent, and
(b)The treatment proposed by Dr McKechnie and the associated expenses are considered reasonably necessary treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).

[2025] NSWPIC 383

6 August 2025