Gillon v Forster-Tuncurry Nursing Home

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gillon v Forster-Tuncurry Nursing Home [2025] NSWPIC 369
APPLICANT:	Margaret Annie Gillon
RESPONDENT:	Forster-Tuncurry Nursing Home
MEMBER:	John Turner
DATE OF DECISION:	31 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for costs of proposed surgery; reasonably necessary; section 60; Diab v NRMA Limited cited and applied; Held – the T10 to T5 spinal fusion surgery recommended is reasonably necessary as a result of the accepted workplace injuries; pursuant to section 60 the respondent is to pay the costs of and incidental to the T10 to T5 spinal fusion surgery recommended including any associated post-surgical medical expenses.
DETERMINATIONS MADE:	The Commission determines: 1. That the T10 to T5 spinal fusion surgery recommended by Dr Brian Hsu is reasonably necessary as a result of the accepted workplace injuries. 2. Pursuant to s 60 of the Workers Compensation Act 1987 the respondent is to pay the costs of and incidental to the T10 to T5 spinal fusion surgery recommended by Dr Brian Hsu including any associated post-surgical medical expenses. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Margaret Gillon (applicant) has brought proceedings in the Personal Injury Commission (Commission) in which she relevantly alleges:
(a)    that she sustained injury to her lumbar spine due to the nature and conditions of her employment with Forster-Tuncurry Nursing Home (respondent) as a registered nurse between 1985 up to January 1997, (including injury on
30 December 1996 (deemed));
(b)    that on 30 December 1996, during the course of her employment with the respondent she attempted to swivel back and stand up from a chair which unknown to her had desk stoppers applied which resulted in a 'jarring' sensation in her lumbar spine;
(c)    that on or about January 1997, she aggravated her lumbar spine when she was required to pull out a patient stuck under a sink without any assistance, and
(d)    that during the rehabilitation phase, she suffered a further consequential injury to her thoracic spine and cervical spine as a consequence of the lumbar spine injury.
In the alternative, the applicant alleges that she sustained an injury by way of aggravation, acceleration, exacerbation and deterioration of a disease as a consequence of her work-related injury due to the nature and conditions of her employment between 1985 up to January 1997, (including injury on 30 December 1996 (deemed)).
The pleaded injury is not disputed.
The applicant seeks pursuant to s 60 of the Workers Compensation Act 1987 (1987 Act) the payment of T10 to T5 spinal fusion surgery recommended by Dr Brian Hsu plus associated post-surgical medical expenses.
As a result of the injury the applicant has previously had the L3/4 to L5/S1 segments fused on 3 April 2012, an L2/S1 decompression and fusion in or around 2019 and a T10/S1 fusion in or around 2021 all at the hands of Dr Hsu.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) dispute pursuant s 60 of the 1987 Act as to whether the proposed surgery is reasonably necessary as a result of the injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
26 June 2025. Mr Bill Carney, counsel, instructed by Turner Freeman Lawyers appeared for the applicant, who was present. Mr David King, counsel, instructed by Hall & Wilcox Lawyers, appeared for the respondent. The proceedings were conducted in-person. 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, and
(b) Reply and attached documents.
A brief summary of the evidence follows.

Applicant’s statement evidence

It is the applicant’s evidence that despite multiple surgeries, her middle back pain has continued to bother her and gradually intensified, in particular, around the thoracic spine region.[1] That she is presently prescribed Endone and paracetamol which she takes as required and that she has a hydrotherapy pool at home which helps alleviate her back stiffness and tenderness when used regularly.[2]
[1] ARD p. 3.
[2] ARD pp. 3-4.
It is the applicant’s evidence that her thoracic spine pain worsens with prolonged sitting, bending, twisting, turning and lifting movements.[3]
[3] ARD p. 4.
It is the applicant’s evidence that her previous lumbar spine surgeries significantly reduced her issues, however the pain symptoms in her thoracic spine continue.[4]
[4] ARD p. 4.
It is the applicant’s evidence that that she has undergone injections in an attempt to alleviate the pain and discomfort in her thoracic spine but did not feel much improvement and the pain persisted.[5]
[5] ARD p. 4.
It is the applicant’s evidence that she feels as though she has exhausted all conservative medical options. That previous surgery to her lumbar spine had been helpful and she hopes that the proposed surgery will be of similar benefit.[6]

Treating medical evidence

[6] ARD p. 5.

Dr Brian Hsu, the applicant’s treating orthopaedic surgeon, reported to Dr Garry Clemensen on 27 November 2012[7] that the applicant had very good relief of her lumbar symptoms following the fusion of the L3/4 to L5/S1 segments.
[7] ARD p. 81.
Dr Hsu reported to Dr Clemensen on 18 December 2019 that the applicant had “excellent” relief of her pre-operative symptoms after the extension of her fusion from L3 to L2.[8] On
[8] ARD p. 101.
[9] ARD p. 102.
26 February 2020 Dr Hsu reported to Dr Clemensen that the applicants preoperative back pain was much improved.[9]
On 4 June 2022 Dr Hsu reported to Dr Clemensen one year after and extension of the fusion to T10. The doctor noted that the applicant was still experiencing some discomfort and pain in the upper end of the fusion as well as radiating thoracic radicular pain.[10] The extension of the fusion had been performed following an exacerbation in symptoms caused by a twisting incident.
[10] ARD p. 108.
Dr Hsu reported to Dr Clemensen on 26 June 2022 that a bone scan demonstrated adjacent segment increased uptake particularly in the T9-10 facet joints.[11] T9-10 facet joint injections were subsequently performed with Dr Hsu reporting to Dr Clemensen on 5 September 2022 that the injections were “very successful in relieving her pain for 2-3 days” which provided good diagnostic information. The doctor was going to proceed to radiofrequency ablation at T9-10.[12]
[11] ARD p. 109.
[12] ARD p. 110.
On 11 October 2022 Dr Hsu reported to the respondent that a bone scan demonstrated adjacent segment increased uptake in particular in the T9-10 facet joint causing some discomfort and pain at the upper end of the fusion with some radiating thoracic radicular pain. The doctor observed that adjacent segment disease is “widely known to be a potential complication of spinal fusion” and that “symptomatic adjacent segment disease is a disappointing long-term outcome for patients after spinal fusion.” [13]
[13] Reply p. 5.
On 27 April 2023 Dr Hsu reported to Dr Mohammed Hamdy that the applicant’s symptoms had not significantly improved and overall the applicant felt that her symptoms were deteriorating.[14] Dr Hsu reported to Dr Seshasayee Narasimhan on 17 June 2023 proposing an extension of the fusion from T10 to T5.[15] On 17 June 2023 Dr Hsu also reported to
[14] ARD p. 111.
[15] ARD p. 112.
[16] Ard p. 113.
Dr Hamdy that the back pain had been shown on imaging to be related to her “adjacent segment” recommending the extension of the fusion to T5.[16]
Dr Hsu reported to the applicant’s solicitors on 28 January 2025[17] recording that he first examined the applicant on 4 March 2011 and had been reviewing her regularly since. The doctor records that the applicant has ongoing back pain as a consequence of her workplace injury and subsequent spinal fusions. In the opinion of Dr Hsu, the applicant’s symptoms correlate with the findings on examination and the injuries sustained. In the doctor’s opinion the workplace injury is the substantial contributing factor to her condition, subsequent incapacity and the need for further surgical intervention
[17] ARD pp. 23-25.
In the doctor’s opinion without the proposed surgical treatment, the applicant can expect to have permanent functional deficit and ongoing pain. With the proposed surgical treatment, the doctor expects improvement in pain and function.
In the opinion of Dr Hsu, noting that the applicant continues to experience ongoing back pain which has not improved with conservative treatment, the proposed fusion surgery is appropriate in treating her symptoms. In the doctor’s opinion it is an effective method of treatment, and the alternative is to accept permanent functional incapacity and trial chronic pain management. In the doctor’s opinion the surgery is a cost-effective measure for managing her injury and is effective in treating mechanical lower back pain. Dr Hsu observes that the proposed surgery is an accepted method of treatment by practising spine surgeons worldwide.
On 22 February 2025 Dr Hsu reported to Dr Clemensen that the applicant was experiencing increased neck pain and upper limb symptoms due to poor posture caused by the lower lumbar “adjacent segment disease that is likely to require extension of the fusion.”[18]

Forensic medical reports

[18] Reply p. 7.

Dr James Bodel, orthopaedic surgeon, provided a forensic medical report to the applicant dated 19 February 2014 in which the doctor records that the applicant had undergone a three-level fusion procedure from L3/4 to L5/S1. The doctor records that the applicant reported that whilst the surgery had not cured her symptoms it had helped.[19]
[19] ARD p. 28.
Dr Michael Biggs OAM, neurosurgeon, provided a forensic report to the respondent dated
[20] Reply p. 14.
18 June 2024. Dr Biggs took a history from the applicant that her first fusion surgery helped for a year or so and that after the second surgery she was discharged after four days and that the bumping during the drive home to Taree from Sydney caused severe pain in her back at the level of the bra strap and this pain had been with her ever since.[20]
Dr Biggs noted that the applicant had recently had radiofrequency ablation at T9/10 which was reported as providing no relief. The applicant was taking Endone and Panadol Osteo for pain.
In the opinion of Dr Biggs degenerative arthritic changes from T5/7 to T8/9 is the cause of her back pain across the level of her bra strap. In the opinion of Dr Biggs, the proposed fusion extension surgery is not appropriate. In the opinion of Dr Biggs, the applicant will not do well with further surgery observing that the applicant “appears to get limited joy out of anything in her life at present, and she has complaints about all aspects of her life.” In the opinion of Dr Biggs further surgery would only aggravate the degenerative problem at adjacent levels and would be far better treated conservatively.

Oral evidence

No oral evidence was adduced.

FINDINGS AND REASONS

The applicant seeks pursuant to s 60 of the 1987 Act the payment of T10 to T5 spinal fusion surgery recommended by Dr Hsu plus associated post-surgical medical expenses.
Injury is not disputed.
As a result of the accepted injury the applicant has previously had the L3/4 to L5/S1 segments fused on 3 April 2012, an L2/S1 decompression and fusion in or around 2019 and a T10/S1 fusion in or around 2021 all at the hands of Dr Hsu.
In the respondent’s submission the opinion of Dr Biggs that the proposed fusion extension surgery is not appropriate should be accepted. I do not accept the opinion of Dr Biggs and prefer the opinion of Dr Hsu.
In the opinion of Dr Biggs degenerative arthritic changes from T5/7 to T8/9 is the cause of the applicant’s back pain across the level of her bra strap. In the respondent’s submission the pain which the applicant is complaining of is remote from the region of the spine to which the work injury was sustained and is due to age related degenerative changes and not the accepted injury.
I do not accept the respondent’s submission that the pain which the applicant is complaining of is remote from the region of the spine to which the work injury was sustained and is due to age related degenerative changes and not the accepted injury for the following reasons.
On 4 June 2022, one year after an extension of the fusion to T10 Dr Hsu reported to
Dr Clemensen that the applicant was still experiencing some discomfort and pain in the upper end of the fusion as well as, significantly, radiating thoracic radicular pain.
Under the care of Dr Hsu, a bone scan was performed which demonstrated adjacent segment increased uptake particularly in the T9-10 facet joints. Injections were then performed to the T9-10 facet joints which were successful in relieving the applicant’s pain for two to three days and which in the opinion of Dr Hsu provided very good diagnostic information. Whilst Dr Biggs refers to the radiofrequency ablation that was performed at T9-T10 the doctor makes no reference to the facet joint injections nor the diagnostic value of those injections.
Following the facet joint injections, radiofrequency ablation was performed at T9-10. Unfortunately, we have in evidence no comment from Dr Hsu in respect to the outcome of the radiofrequency ablation. However, on 11 October 2022 Dr Hsu has reported to the respondent that a bone scan demonstrated adjacent segment increased uptake in particular in the T9-10 facet joint causing some discomfort and pain at the upper end of the fusion with some radiating thoracic radicular pain whilst observing that adjacent segment disease is “widely known to be a potential complication of spinal fusion” and that “symptomatic adjacent segment disease is a disappointing long-term outcome for patients after spinal fusion.”
On 17 June 2023 Dr Hsu reported to Dr Narasimhan proposing an extension of the fusion from T10 to T5 and to Dr Hamdy that the back pain had been shown on imaging to be related to her “adjacent segment” recommending the extension of the fusion to T5. The opinion of
Dr Hsu in respect to the required treatment has not changed.
Dr Hsu is the applicant’s long time treating surgeon and the surgeon that performed the previous spinal fusion procedures. As the applicant’s treating surgeon he investigated the applicant’s further complaints in respect to her thoracic spine symptoms. Those investigations including the bone scan, facet joint injections and radiofrequency ablation. The doctor has concluded that the applicant’s pain is related to her “adjacent segment” and recommended the proposed surgery on that basis.
In the opinion of Dr Hsu, as reported to the respondent on 28 January 2025, the applicant’s ongoing back pain and the need for the proposed surgery is as a consequence of her workplace injury and subsequent spinal fusions. This is consistent with the doctor’s earlier observations that adjacent segment disease is “widely known to be a potential complication of spinal fusion” and that “symptomatic adjacent segment disease is a disappointing long-term outcome for patients after spinal fusion.”
Whilst Dr Hsu does refer to poor posture when reporting to Dr Clemensen on
22 February 2025, the doctor refers to that poor posture as being caused by the lower lumbar adjacent segment disease. In any event the doctor referred to the poor posture as being a cause of neck and upper limb symptoms without mentioning the thoracic spine.
In my view Dr Hsu is in the best position to provide an opinion as to the cause of the applicant’s thoracic spine symptoms having the benefit of being intimately associated with the applicant’s clinical and symptomatic history having treated the applicant since 2011 as well as being the doctor under who’s care the investigations were undertaken.
Dr Biggs has only examined the applicant on one occasion, the history which he was able to obtain was limited, the clinical records which he had the opportunity to review were also limited, he also does not appear to have been aware of the outcome of the facet joint injections and his understanding of the outcome of the radiofrequency ablations appears to be limited to what the applicant was able to report to him.
I prefer the opinion of Dr Hsu and find that the need for the proposed surgery arises as a result of the accepted work injuries.
In the opinion of Dr Biggs, the surgery is not appropriate as in his opinion the applicant will not do well with further surgery observing that the applicant “appears to get limited joy out of anything in her life at present, and she has complaints about all aspects of her life.” In the opinion of Dr Biggs further surgery would only aggravate the degenerative problem at adjacent levels and would be far better treated conservatively. I do not accept the opinion of Dr Biggs.
It is the applicant’s evidence that she is restricted in her functional capacity as a result of her thoracic spine symptoms and that these significantly affect her day to day activities. That she has been prescribed Endone and paracetamol which she takes as required.
It is the applicant’s evidence that her previous lumbar spine surgeries significantly reduced her issues, and she hopes that the proposed surgery will be of similar benefit.
The contemporaneous medical evidence supports that the applicant did benefit from the previous fusion surgeries with Dr Hsu reporting on 27 November 2012 very good relief of the lumbar symptoms following the fusion of the L3/4 to L5/S1 segments and on
18 December 2019 that the applicant had “excellent” relief of her preoperative symptoms after the extension of her fusion from L3 to L2. On 26 February 2020 Dr Hsu also reported that the applicants preoperative back pain was much improved.
Dr James Bodel, orthopaedic surgeon, who provided a forensic medical report to the applicant dated 19 February 2014 also records that the applicant had undergone a three level fusion procedure from L3/4 to L5/S1 in respect to which the applicant reported that whilst the surgery had not cured her symptoms it had helped.
In the opinion of Dr Hsu, without the proposed surgical treatment, the applicant can expect to have permanent functional deficit and ongoing pain. Whilst with the proposed surgical treatment, the doctor expects improvement in pain and function.
In the opinion of Dr Hsu, noting that the applicant continues to experience ongoing back pain which has not improved with conservative treatment, the proposed fusion surgery is appropriate in treating her symptoms. In the doctor’s opinion it is an effective method of treatment, and the alternative is to accept permanent functional incapacity and trial chronic pain management. In the doctor’s opinion the surgery is a cost-effective measure for managing her injury and is effective in treating mechanical lower back pain. Dr Hsu observes that the proposed surgery is an accepted method of treatment by practising spine surgeons worldwide.
The evidence supports that the applicant has obtained a benefit from previous fusion procedures. Whilst I accept that there is a risk that the adjacent segment will once again cause problems this is a risk with any fusion spinal procedure.
The legal test to be applied when determining whether proposed treatment is reasonably necessary as a result of a workplace injury as required by s 60 of the 1987 Act was considered by Roche DP in Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab) where stated at [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.”

In Diab Deputy President Roche cited the decision of Burke CCJ in Rose with approval and stated:
“[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……namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.

[89] With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
[90] 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’.”

As previously discussed, I accept the opinion of Dr Hsu that the proposed fusion surgery is appropriate. Alternative treatment has been attempted without success and the only option would be pain management. I accept Dr Hsu opinion that the proposed fusion surgery is effective in treating mechanical back pain. The applicant has undergone previous fusion procedures which have been of assistance. I accept that the treatment is accepted by medical experts with the Commission frequently being asked to determine claims in respect to proposed spinal fusion surgery. Spinal fusion procedures are a common surgical procedure for which the costs are accepted and paid at workers compensation.
For the above reasons I find that the T10 to T5 spinal fusion surgery recommended by
Dr Brian Hsu is reasonably necessary as a result of the accepted workplace injuries.

[2025] NSWPIC 369

31 July 2025