Follett v Accurate Asphalt & Road Repairs Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Follett v Accurate Asphalt & Road Repairs Pty Ltd [2022] NSWPIC 47
APPLICANT:	Mitchell Follett
RESPONDENT:	Accurate Asphalt & Road Repairs Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	4 February 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim pursuant to section 60 of the Workers Compensation Act 1987 for costs of and incidental to multilevel fusion surgery in respect of accepted lumbar injury; whether aggravation of degenerative pathology had ceased; whether surgery indicated in circumstances where applicant is obese; Held - the proposed surgery is reasonably necessary as a result of the work injury; award for the applicant for the costs of and incidental to the proposed procedure.
DETERMINATIONS MADE:	1. The two-stage L3-S1 instrumented fusion proposed by Associate Professor Peter Papantoniou is reasonably necessary as a result of the injury on 23 January 2017.
ORDERS MADE:	2. The respondent to pay the costs of and incidental to the proposed surgery pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Mitchell Follet (the applicant) was in the course of his employment with Accurate Asphalt & Road Repairs Pty Ltd (the respondent) when he injured his lumbar spine on 23 January 2017. Liability for the injury was accepted by the respondent’s insurer.
On 21 May 2020, the applicant’s surgeon, Associate Professor Peter Papantoniou, wrote to the insurer seeking approval for the applicant to undergo a two-stage L3-S1 instrumented fusion.
Liability for the proposed surgery was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 18 March 2021 on the basis that the surgery was not reasonably necessary as a result of an injury for the purposes of s 60 of the Workers Compensation Act 1987 (the 1987 Act).
The applicant sought review of the insurer’s decision pursuant to s 287A of the 1998 Act on 3 August 2021 and the decision to dispute liability was maintained in a notice dated 11 August 2021.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 11 November 2021. The applicant seeks orders for the costs of and incidental to the proposed surgery pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 2 February 2022. The applicant was represented by Ms Eraine Grotte of counsel, instructed by Ms Larissa Pearson. The respondent was represented by Mr Paul Barnes of counsel, instructed by Mr Darran Russell. A representative from the insurer was also present.
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.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the two-stage L3-S1 instrumented fusion proposed by Assoc Prof Papantoniou is reasonably necessary as a result of the injury on 23 January 2017.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.
Neither party applied to adduce oral evidence or cross examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statement made by him on 1 September 2021.
The applicant, who is 40 years old, commenced employment with the respondent in approximately 2015. The applicant was initially employed as a truck driver and plant operator but later, due to his experience in asphalting, was instructed to do additional labour work.
The applicant felt his back starting to get tight and sore by about October 2016. The applicant thought this was muscle stiffness due to repetitive shovelling and raking of asphalt and loading and unloading machinery using heavy ramps attached to a trailer.
On 23 January 2017, the applicant was pulling a rake against asphalt when he felt severe pain in his lower back.
Within hours of the injury the applicant began to experience pain in his left buttock and outer right thigh below his hip. The applicant had some pins and needles in his toes and sole of his left foot. The applicant attended Belmont Hospital where he was given analgesia.
The applicant attended his general medical practitioner and was referred to an orthopaedic and spinal surgeon, Assoc Prof Peter Papantoniou, whom he first consulted on 28 February 2017.
Assoc Prof Papantoniou initially recommended conservative treatment. The applicant undertook physiotherapy, hydrotherapy, exercise physiology and a gym program. The applicant remained at work performing suitable duties.
The applicant’s conservative management was interrupted due to complications arising from an unrelated Ear, Nose & Throat (ENT) surgery on 12 February 2018. By 30 August 2018, the applicant was experiencing right sided sciatica. Assoc Prof Papantoniou ordered a further MRI on 30 August 2018.
Despite an epidural steroid injection at L4/5 on 23 January 2019, the applicant’s symptoms continued to deteriorate. The applicant was continuing with hydrotherapy and supervised gym program at that time.
Approval was given by the insurer for the applicant to undergo an L4/5 laminectomy, decompression and neurolysis surgery as recommended by Assoc Prof Papantoniou in February 2019. The applicant decided, however, to try to persevere with conservative treatment. The applicant was reluctant to undergo the surgery if it was at all possible to manage without it.
In late 2019, in addition to exercise, the applicant was prescribed Duromine for weight loss. The applicant’s exercise physiology program was stopped by the insurer although the applicant continued with the gym program and physiotherapy.
A further MRI was undertaken on 6 May 2020 and on 21 May 2020, Assoc Prof Papantoniou, recommended a two-stage L3 to S1 instrumented fusion, noting the history of nonoperative management and the progression of the applicant’s symptoms.
The applicant considered Assoc Prof Papantoniou’s recommendations over a period of a few months before deciding to go ahead with the procedure. The applicant decided he was prepared to accept the risks of the procedure and was hopeful that it would improve his back and lower limb symptoms by at least a modest amount to enable him to make further attempts to lose weight and retrain. The applicant also wished to decrease his intake of analgesia.
The applicant said he had been referred to a pain management physician who had recommended alternative procedures. The applicant had considered those options and discussed them with Assoc Prof Papantoniou. The applicant decided against those options in favour of having surgery.
The applicant disclosed a previous injury when he was 16 years old and a car drove into the family home, knocking the applicant to the floor. Although the applicant experienced pain in his lower back, those issues resolved completely. The applicant disclosed prior workers compensation claims with respect to a right knee injury and creosote burns.

Treating medical evidence

A discharge referral from Belmont District Hospital dated 23 January 2017 records notes from the triage nurse as follows:
“Work related injury. Walked in C/O mid back pain, radiating down to lower pain, back injury at work 10/12 ago, today increasing back pain at work and pain now severe, has taken x2 neurofen with nil relief. States has shooting pain down left leg”
The referral further noted that the applicant developed back pain at 10.00am that day when pulling heavy load of asphalt at work. The pain continued to be quite severe. A diagnosis of acute back pain was made and the applicant prescribed oxycodone and paracetamol.
The report of an MRI performed on 31 January 2017 noted constitutional lumbar canal stenosis from L3 to L5 with further narrowing of the spinal canal at L3/4 and L4/5 due to posterior disc bulge (worse at L4/5). No foraminal narrowing or neural compromise at any spinal level was observed.
Assoc Prof Papantoniou prepared a report for the applicant’s general practitioner on 28 February 2017. Assoc Prof Papantoniou took a history of the onset of immediate central lower back pain radiating into both paraspinal muscle regions when raking asphalt at work on 23 January 2017. The pain radiated into the applicant’s left buttock and he had bilateral L5 paraesthesia worse on the left, continuing until now. The applicant was taking Endone and having physiotherapy which had been helping. The applicant was initially off work but was now performing light duties three days a week, five hours a day, with lifting restrictions. It was noted that the applicant had no previous operations or injections at the lower back. Assoc Prof Papantoniou gave the opinion:
“Mr Follette has suffered a new L4/5 disc bulge as a direct result of his work injury. The fact that he was pain free working as an asphalt operator for more than eight years without any issues and that his pain began immediately at the accident and has continued unchanged leaves me no choice but to attribute his current pain, disability and the pathology identified on MRI to his work injury.”
Assoc Prof Papantoniou recommended that the applicant maximise nonoperative management through physiotherapy, core stability exercises, concurrent hydrotherapy and supervised gym program. It was also recommended that the applicant see a dietician and have a supervised diet to achieve ideal weight.
Assoc Prof Papantoniou saw the applicant again on 30 March 2017. The applicant reported some significant improvement which had plateaued. The applicant continued to work suitable duties. The applicant was advised to continue with his conservative treatment.
Periodic reports from Assoc Prof Papantoniou thereafter recorded ongoing symptoms. The applicant’s symptoms were noted to have increased when exercise physiology was stopped in August 2017. Assoc Prof Papantoniou recommended that the applicant continue with exercise physiology for at least six months.
In report dated 14 September 2017, it was noted that the applicant’s employment was terminated. The applicant continued to complain of lower back pain which was central and went bilaterally into the paraspinals. This had been constant in the last three months. The applicant was also experiencing stiffness.
On 31 October 2017, it was noted that rest following the termination of the applicant’s employment and continuing exercise physiology had resulted in some improvement.
Assoc Prof Papantoniou reported that the applicant continued with lower back pain and sciatica on 1 February 2018. It was noted that the applicant’s pain had been worse over the Christmas break when the applicant took a rest from the exercise physiology.
In report dated 20 March 2018, Assoc Prof Papantoniou noted that due to complications from ENT surgery on 12 February 2018, the applicant was unable to maximise his nonoperative management at present. The applicant continued to have quite severe lower back pain.
Due to continuing severe lower back pain and sciatica, Assoc Prof Papantoniou referred the applicant for a new MRI on 30 August 2018.
An MRI performed on 14 September 2018 noted moderate canal narrowing at L4/5 without significant foraminal narrowing. A broad-based disc bulge at L4/5 with canal stenosis was observed.
On 8 November 2018, Assoc Prof Papantoniou noted significant ongoing lower back pain and sciatica as a direct result of the L4/5 and L5/S1 disc pathology identified on the MRI, resulting from the work injury. The applicant was referred for an L4/5 epidural injection. It was noted that the applicant would likely require an L4/5 decompression.
On 23 January 2019, the applicant underwent a CT guided injection at the L4/5 trans-laminal epidural space.
Assoc Prof Papantoniou noted in a report dated 19 February 2019 that the applicant’s pain worsened following the epidural steroid injection. The applicant continued to have quite significant lower back pain and right lower limb pain. The sciatica was getting worse. Assoc Prof Papantoniou recommended and L4/5 laminectomy, decompression and neurolysis.
On 11 June 2019, Assoc Prof Papantoniou noted that the insurer had provided approval for an L4/5 decompression and discectomy but the applicant wished to continue nonoperative management. The applicant was advised to continue with exercise physiology and supervised gym program.
On 29 October 2019, the applicant was continuing to have quite severe lower back pain and sciatica. The applicant was noted to be significantly overweight although he had lost some weight with the help of Duromine, which he started a month earlier. Assoc Prof Papantoniou expressed the belief that ultimately the applicant would come to surgery.
Assoc Prof Papantoniou noted that the insurer did not continue the applicant’s exercise physiology program and pain continued to be at elevated levels. The applicant had continued to lose weight and had changed medications from Lyrica and Endone to Targin and Palexia. None of these were enough to deal with the applicant’s pain. The need for surgical intervention was again noted.
The applicant’s pain was reported to have worsened due to the inability to undertake physiotherapy due to coronavirus restrictions on 23 April 2020. Assoc Prof Papantoniou noted that the applicant had seen a chronic pain specialist Dr Kadavil who had recommended further intervention. Further investigation by MRI was recommended.
An MRI performed on 6 May 2020 noted degenerative changes most severe at L4/5 with spinal canal stenosis and slight neural exit foraminal narrowing on the left.
In report dated 21 May 2020, Assoc Prof Papantoniou noted that the applicant continued to have severe central and bilateral lower back pain with bilateral S1 radiculopathy. It was noted that the applicant’s chronic pain specialist had recommended radiofrequency neurotomies but Assoc Prof Papantoniou believed this would not address the disc pathology and was not enough for the applicant’s pain. Assoc Prof Papantoniou gave the opinion:
“Mr Follett has multilevel disc pathology as well as facet joint pathology which in combination I believe are causing his pain.
He has failed non-operative management and I believe surgical intervention is his only recourse.
I have recommended he has a two-stage L3 – S1 instrumented fusion.
Initially I perform an L5/S1 fusion then give this proximally six months to be infusing so that it is strong enough to take the forces involved with the higher level fusions. After six months I go back and perform the revision L3 – S1 fusion.”
An approval request was forwarded to the insurer on the same date.
The applicant continued to see Assoc Prof Papantoniou over the second half of 2020. The applicant continued to report severe central bilateral lower back pain, becoming worse. Assoc Prof Papantoniou remained of the view that the applicant was best served with an
L5 – S1 instrumented fusion followed by a revision L3 – S1 instrumented fusion approximately six months later.
Assoc Prof Papantoniou prepared a report for the applicant’s solicitor on 18 July 2021. It was noted that the applicant was now four and a half years post injury and the applicant continued in pain and had clearly failed nonoperative management. Assoc Prof Papantoniou recited the history of injury and the subsequent development and treatment of the injury in a manner consistent with his contemporaneous reports and stated:
“Whilst Mr Follett had suffered an L4/ 5 disc prolapse as a result of his work injury, this disease had progressed to affect the adjacent two levels, that being L5/ S1 and L3/4. Initially the L5/ S1 was affected but given the delay in appropriate treatment the L3/4 was also affected.
It must also be noted that he did undertake a return to work programme and was given inappropriate duties including going back on to heavy vibrating machines even though he had documented disc pathology and a lower back injury.
His pain has continued largely unchanged although fluctuant in intensity.
…
There is no question that these three disc levels are all related with the L4/ 5 having commenced first. If Mr Follett was prone to such pathology one would have expected it to manifest prior than eight years of similar duties in the asphalting industry”
Assoc Prof Papantoniou indicated that he had read the report of the respondent’s Independent Medical Examiner, Dr Vidyasagar Casikar, dated 9 March 2021. Assoc Prof Papantoniou disagreed with Dr Casikar’s opinion that the applicant had a constitutional degenerative disease of the lumbar spine.
Assoc Prof Papantoniou stated:
“Given that Mr Follett was 35 years old at the time of the injury, I do not believe this is the case. It must be noted that he had been working for eight years in the same asphalting industry and had not suffered any untoward effects as a result of this until the exacerbation in January 2017.
There is no indication of any pre-existing degenerative disease that Dr Casikar mentions in his response to questions at number two. Should there have been any pre-existing pathology one would have expected it to manifest prior than eight years of extremely heavy work that also involved vibrating machines.”
Assoc Prof Papantoniou gave the opinion that the pain the applicant had suffered in the three months preceding the work injury were the result of his work activities.
Assoc Prof Papantoniou noted that the applicant had continuous pain since the time of the work injury in an unbroken pattern of fluctuant intensity. Assoc Prof Papantoniou could not see how any aggravation had ceased.
With regard to the applicant’s weight, Assoc Prof Papantoniou commented:
“There is no question that Mr Follett's increased weight would make his symptoms worse but not to the point where it would alter the ultimate management. Weight loss treatment would be appropriate and supplemental to his lower back treatment.
It must be remembered that weight gain is an almost universal phenomenon in people who have suffered lower back injuries and are precluded from their usual activities and exercises.
…
Whilst it would be optimal for Mr Follett to lose weight prior to a spinal fusion the reality of day to day treatment of patients with lower back injuries is that they are unable to lose weight until there lower back pain and sciatica has cased or resolved. It is only after such stability of the lumbar spine is achieved that patients have the functional capacity to increase their activities and exercises to the point where they begin to lose weight heading back towards a normal weight.”
Assoc Prof Papantoniou gave the opinion that the treatment he had recommended was reasonable and necessary to stabilise the applicant’s lumbar spine and allow him to increase his functional capacity through decreased pain levels. The applicant would be suitable for retraining should the insurer choose to provide it.
Assoc Prof Papantoniou disagreed that the applicant would inevitably develop a failed back syndrome.
Associate Prof Papantoniou also commented:
“It is unclear on what basis Dr Casikar has come to the conclusion that losing weight alone with regular exercise will relieve Mr Follett's neurological problems given that we are now four-and-a-half years postinjury. He has clearly failed non-operative management. It must be noted in the early stages of Mr Follett's injury he was at a much lighter weight than he is now and he was still suffering significant amounts of pain. It is not necessarily the progression of pain alone that is the problem but the pathology as identified on serial MRI's has also progressed.”

Dr Azhar Khan

The applicant was seen by occupational physician, Dr Azhar Khan, on 31 July 2020 at the request of the insurer.
Dr Khan took a history of the injury at work on 23 January 2017. The applicant developed acute lower back pain associated with shooting pain radiating down to the left knee and pins and needles in the left leg as well as numbness in the right thigh.
Initially the applicant responded favourably to physical rehabilitation and was losing weight. The applicant then developed a non-work-related condition requiring three operations. The applicant’s rehabilitation program was also interrupted by the COVID-19 pandemic.
Dr Khan noted that Assoc Prof Papantoniou had recommended a double spinal fusion.
After reviewing the most recent MRI report, Dr Khan gave the opinion that the applicant was permanently unfit for his pre-injury duties, currently unfit for work and would remain unfit for work until he underwent neurosurgery. Dr Khan said:
“I acknowledge that I have read the supporting documentation provided. I agree with A/Prof Papantoniou's clinical findings. I anticipate that Mr Follett will require neurosurgery as conservative measures have not provided him with lasting symptomatic relief.”

Dr Vidyasagar Casikar

The respondent relies on medicolegal reports prepared by neurosurgeon, Dr Vidyasagar Casikar, dated 9 March 2021 and 11 June 2021.
In his first report, Dr Casikar noted that he had reviewed a number of reports from Assoc Prof Papantoniou, Dr Kadavil and the report of Dr Khan, as well as the reports of MRIs of the lumbar spine taken on 14 September 2018 and 6 May 2020.
Dr Casikar took a history of the applicant starting to have back pain three months before the event on 23 January 2017 which was gradually increasing. Whilst manually shovelling and raking asphalt the applicant developed low back pain and could not walk. Dr Casikar recorded that the applicant developed left sciatic symptoms a month after the original injury.
Dr Casikar took a history of subsequent treatment that was broadly consistent with the other evidence before the Commission.
Upon examination, evidence of hypoaesthesia of L4 and L5 dermatomes were noted. The applicant also complained of hypoaesthesia over the lateral aspect of the right thigh suggestive of meralgia paraesthetica.
Dr Casikar gave the opinion:
“Mr Follett does not appear to have a specific work-related injury. The problem in the back started 3 months prior to the said date of the injury. Various forms of treatment have not given good sufficient response. The neurological examination suggests left meralgia paresthetica. This is not surprising considering his significant obesity. The MRI examination shows multisegment degenerative disease.
The spinal fusion suggested by Dr Papantoniou is not related to the workplace injury. I believe that his suggestion for a fusion is mainly because of back pain. Considering his significant obesity a spinal fusion is likely to fail. The outcome of the surgery would be failed back syndrome. Following the fusion, it is very unlikely that Mr Follett would be able to get back to any kind of employment.”
Dr Casikar gave a diagnosis of constitutional degenerative disease of the lumbar spine. Asked whether there was an injury as the result of work, Dr Casikar stated:
“Mr Follett probably suffered an aggravation to a pre-existing degenerative disease of the lumbar spine though there was not a specific workplace incident. In my opinion this aggravation has ceased. His present complaints are mainly due to the degenerative disease of the lumbar spine.”
Dr Casikar continued:
“Mr Follett's symptoms at present are mainly due to pre-existing factors. His work-related injury has now resolved.”
Asked to comment on whether the surgery proposed by Assoc Prof Papantoniou was reasonably necessary as a result of a work injury, Dr Casikar reiterated his previous opinions:
“Dr Papantoniou's indication for L5/S1 fusion followed by L3-S1 instrumented fusion on a second stage is mainly due to his understanding of the management of the chronic degenerative disease of the lumbar spine. In my opinion this is not related to his workplace injury. Mr Follett is significantly obese. Therefore, the medical indications for a spinal fusion at his present weight is likely to fail. Therefore, I find it difficult to support Dr Papantoniou's indication for surgery as a consequence of the workplace injury and as a medical management of his back pain.”
Asked whether there was any alternative appropriate treatment required for the injury, Dr Casikar stated,
“Appropriate treatment would be to advise him to reduce his weight to a more reasonable proportion and do regular exercises to improve his core muscle strength. His neurological problems will improve once his weight related issue resolves.”
In his supplementary report dated 11 June 2021, Dr Casikar was asked whether there were any pre-existing conditions or abnormalities contributing to the current level of impairment suffered by the applicant. Dr Casikar stated:
“Mr Follett's impairment is entirely in my opinion due to the pre-existing degenerative disease. But for the abnormality the degree of permanent impairment would probably have been different. However please note that he has no workplace injury and therefore impairment does not alter whether he had an injury or not. The pathology he has is entirely due to the degenerative disease of the lumbar spine.”

Submissions

Ms Grotte and Ms Barnes made oral submissions at the arbitration hearing on 2 February 2022. Those submissions were recorded and I do not propose to recite them in detail here.
The respondent relied on the reports of Dr Khan and Dr Casikar referred to above. It was submitted that Dr Casikar, who was an expert qualified in the relevant field, had taken a full and accurate history. Dr Casikar’s opinions that the applicant’s current presentation was due to degenerative lumbar spine disease and that the surgery proposed was not indicated and likely to result in a failed back syndrome would be preferred to the applicant’s evidence.
The applicant referred to the statement evidence and the treating medical evidence described above in some detail. It was submitted that Dr Casikar’s view that there was no work-related injury and that any aggravation of a degenerative condition had ceased was inconsistent with the insurer’s acceptance of liability and approval of a previously proposed surgery as well as the treating evidence in general. The opinion that the applicant’s presentation was suggestive of meralgia paraesthetica failed to account for the other consistently reported symptoms. The pathology demonstrated on the MRI investigations was found by Assoc Prof Papantoniou and Dr Khan to account for the applicant’s symptoms. Dr Khan’s report supported the proposal for surgery.
The applicant submitted that Dr Casikar failed to address for the sudden onset of symptoms, recorded contemporaneously in the hospital discharge referral, or the ongoing reporting of gradually increasing symptoms. The reports of Assoc Prof Papantoniou demonstrated that extensive conservative management of the injury had failed.
Referring to the authorities in Diab v NRMA Ltd[1] and Rose v Health Commission (NSW)[2], the applicant submitted that the Commission would be comfortable in accepting the applicant’s evidence and would give no weight to the opinions of Dr Casikar.
[1] [2014] NSWWCCPD 72.
[2] [1986] NSWCC 2; (1986) 2 NSWCCR 32.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act.
Section 60 of the 1987 Act relevantly provides:
“(1)    If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b)     any hospital treatment be given, or
(c) any ambulance service be provided, or
(d)     any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
It is the applicant who bears the onus of establishing on the balance of probabilities that proposed surgery is reasonably necessary as a result of the accepted injury on 23 January 2017. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[3] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1 injury to the applicant’s right ankle and her cervical spine. 940] HCA 20; (1940) 63 CLR 691 at 712.”

83.A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[4], where Kirby P said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[3] [2008] NSWCA 246.
[4] (1994) 10 NSWCCR 796 at [810].

His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
The occurrence of an injury to the applicant’s lumbar spine on 23 January 2017 is not in dispute in this case.
The MRI evidence before the Commission clearly demonstrates pathology at the applicant’s lumbar spine. Although Dr Casikar has described the pathology as constitutional and not related to any work injury, a different opinion has been provided by the applicant’s treating surgeon, Assoc Prof Papantoniou.
In his first report, after reviewing the initial MRI scan, Assoc Prof Papantoniou gave the opinion that there was a new L4/5 disc bulge as a direct result of the work injury. Assoc Prof Papantoniou formed this view having regard to the acute onset of pain, which had continued unchanged, and the applicant’s ability to work in heavy manual employment prior to the event on 23 January 2017.
The applicant’s evidence as to the acute onset of pain in the incident whilst raking asphalt on 23 January 2017 is corroborated by contemporaneous evidence from the Belmont District Hospital. The hospital discharge referral notes pain radiating down the left leg consistently with the applicant’s evidence that he began to experience symptoms of sciatica within hours of the event.
This evidence differs in a significant way from the history recorded by Dr Casikar who emphasised a gradual onset of pain, referred to there being no specific incident at work and recorded that symptoms of left sciatica developed a month after the original injury.
A comparison between the treating medical evidence and the reports of Dr Casikar therefore indicates that Dr Casikar has not adequately accounted for the particular event on 23 January 2017, the acute onset of symptoms including sciatica or the opinion given by Assoc Prof Papantoniou that the disc bulge at L4/5 was new pathology.
Dr Casikar’s opinions also depart from the treating medical evidence with regard to the ongoing effects of the injury. Whilst Dr Casikar appears to allow for the possibility of some work related aggravation of the degenerative pathology at the applicant’s lumbar spine, he has given the opinion that such aggravation had ceased.
The regular and detailed reports prepared by Assoc Prof Papantoniou demonstrate that the symptoms which developed in the event on 23 January 2017 continued, albeit in a fluctuating manner, from that date onwards. That evidence shows that the applicant’s symptoms improved from time to time, particularly whilst the applicant was undergoing treatment through exercise physiology. A deterioration in symptoms was, however, noted in the periods where the applicant was unable to maximise his nonoperative treatment due to lack of funding from the insurer, COVID-19 restrictions and complications arising from non-work-related ENT surgery.
The evidence from Assoc Prof Papantoniou clearly establishes that not only did the applicant’s symptoms continue and ultimately deteriorate over time, the pathology revealed on MRI investigation also progressed to involve the adjacent levels.
It is noted incidentally that the surgery initially proposed by Assoc Prof Papantoniou in 2019 at L4/5 was approved by the insurer. Ultimately, however, the applicant elected not to undergo the procedure in favour of persevering with nonoperative management. The applicant’s persisting and worsening symptoms, together with a deterioration in the pathology at the lumbar spine, led Assoc Prof Papantoniou to recommend the multilevel surgery now in question in May 2020.
I have considered the comments from Dr Casikar that the applicant’s symptoms may be attributable to a different condition related to the applicant’s obesity, namely meralgia paraesthetica.
That suggestion does not receive any support from the radiological evidence, the treating medical evidence or the other expert opinions before the Commission in these proceedings. Nor does that alternative diagnosis account for the sudden onset of symptoms clearly demonstrated in the contemporaneous treating evidence.
Whilst the radiological and other expert evidence does suggest there may have been some pre-existing degenerative disease of the lumbar spine, that pathology was not incapacitating and does not appear to have brought the applicant to any radiological investigation or medical intervention prior to the injury. The development of pain and stiffness in the months leading up to the event on 23 January 2017 has, in any event, been attributed to the nature of the applicant’s work duties by both the applicant and Assoc Prof Papantoniou.
Weighing the evidence before me, I prefer the opinions of Assoc Prof Papantoniou over those given by Dr Casikar. I am satisfied that there was a sudden and demonstrable change in pathology and symptoms in the event on 23 January 2017. An unbroken causal relationship between the injury on 23 January 2017 and surgery currently proposed is established on the balance of probabilities.
The second question which arises in these proceedings relates to the appropriateness of the treatment proposed by Assoc Prof Papantoniou.
What constitutes reasonably necessary treatment was considered in the context of s 10 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[5] where Burke CCJ stated:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[5] (1986) 2 NSWCCR 32 (Rose).
His Honour added:

“1.     Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.      However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3.      Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.      In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”

In Diab v NRMA Ltd[6], to which the applicant referred in these proceedings, Roche DP provided a summary of the relevant principles as follows:
[6] [2014] NSWWCCPD 72.
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”[7]
[7] At [88] to [90].

Deputy President Roche commented further[8]:
“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. Dr Bodel and Dr Meakin were both wrong to apply that test.”
[8] At [86].
Dr Casikar has suggested that the procedure proposed by Assoc Prof Papantoniou is likely to fail having regard to the applicant’s elevated weight. It has been suggested that the outcome of the surgery would be failed back syndrome. Instead, Dr Casikar has proposed that the applicant should reduce his weight and do regular exercises to improve his core muscle strength. Dr Casikar considered that the applicant’s neurological problems would improve once the weight related issue had resolved.
The treating reports from Assoc Prof Papantoniou record that from time to time the applicant was, as part of the nonoperative management of his back condition, referred to a dietician and prescribed Duromine. The applicant also participated in exercise physiology and a supervised gym program. Although some progress was made with weight reduction, and improvements in the applicant’s symptoms were associated, in particular, with the exercise physiology program, the applicant’s ability to continue with such treatment was impacted by a number of circumstances as described above. Those treatment modalities did not result in a resolution of the applicant’s symptoms and in fact both the pathology and symptoms have ultimately deteriorated.
Associate Prof Papantoniou has described an almost “universal phenomenon” that people who have suffered lower back injuries are precluded from their usual activities and exercises. Whilst Assoc Prof Papantoniou agreed that the applicant’s weight might be making his symptoms worse, he did not agree that it affected the manner in which the back condition should be managed. Assoc Prof Papantoniou suggested that weight reduction would be appropriate and supplemental to the lower back surgery and other treatment.
The applicant’s evidence, which is consistent with that given by Assoc Prof Papantoniou, is that he expected that with a reduction in his pain he would experience an increase in function and ability to manage his weight and potentially retrain to return to the workforce.
It is clear from the contemporaneous evidence before me that the applicant has been compliant with the nonoperative management recommended to him by his treating practitioners. The applicant persevered with such treatment despite the recommendation for surgery in 2019. An attempt to return to work in suitable duties was also made. The overall picture before me is not of a worker who has rushed to surgical intervention. Rather, there has been a genuine attempt over a period of more than four years to manage the work injury conservatively and appropriately. The decision to pursue the surgical treatment now proposed appears to be well considered.
The recommendation for surgery receives support from Dr Khan who was aware of the procedure proposed. Dr Khan gave the opinion that surgery would be required as conservative measures had not provided the applicant with lasting symptomatic relief.
I note that alternative treatments also appear to have been suggested by the applicant’s pain management specialist. Those treatments had been considered but rejected by Assoc Prof Papantoniou as being insufficient to address the pathology and severe symptomology experienced by the applicant. There is no suggestion from Dr Casikar or the other experts involved in the case that those options should be pursued.
Weighing all the evidence, I am satisfied that the surgery proposed is appropriate and potentially effective treatment for the applicant’s lumbar injury and is accepted by both Assoc Prof Papantoniou and Dr Khan as such. There has been no suggestion in the submissions or evidence before the Commission that the costs of the treatment are inappropriate or excessive. Although alternative procedures and nonoperative measures have been proposed by Dr Casikar and Dr Kadavil, having regard to the nature of the injury, the severity of symptoms, the opinions of Assoc Prof Papantoniou and Dr Khan, and the significant attempt at nonoperative management of the applicant’s condition, I am satisfied that the surgery proposed is now reasonably necessary as a result of the injury.
There will be an award for the applicant for the costs of and incidental to the two-stage L3-S1 instrumented fusion proposed by Assoc Prof Papantoniou.

[2022] NSWPIC 47

4 February 2022