Hain v Health Care North Gosford Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Hain v Health Care North Gosford Pty Limited [2023] NSWPIC 50
APPLICANT:	Kerri Hain
RESPONDENT:	Health Care North Gosford Pty Ltd
Member:	Michael Inglis
DATE OF DECISION:	13 February 2023
CATCHWORDS:	WORKERS COMPENSATION - Whether surgery in the form of l5/s1 anterior fusion augmented by posterior pedicle screws was reasonably necessary following workplace injury in the form of aggravation of pre-existing degenerative changes; Held – the applicant sustained injury to her lumbar spine on 1 March 2021; the surgery is reasonably necessary treatment.
determinations made:	1. The applicant sustained injury to her lumbar spine on 1 March 2021 in the form of aggravation of pre-existing degenerative changes in her lumbar spine. 2. As a consequence, the surgery in the form of L5/S1 anterior fusion augmented by posterior pedicle screws is reasonably necessary treatment.

STATEMENT OF REASONS

BACKGROUND

Kerri Hain (the applicant) was employed with Gosford Private Hospital trading as Healthcare North Gosford Pty Ltd (the respondent) in the capacity of a sterilisation technician. She is presently aged 60 years.
The applicant was employed on a permanent part-time basis undertaking approximately
30-40 hours per week.
Her duties included but were not limited to the collection, cleaning, packing and sterilisation of packets and instruments for all theatre procedures.
On 1 March 2021, the applicant was attending to the loan room which is a room located in the theatre complex containing all the relevant packages and boxes used to obtain the required packs for theatre.
There was a narrow and small row that the applicant was required to walk through to retrieve items that she needed. As she was attempting to retrieve a box of implants off the ground, weighing approximately 5kgs, she twisted her lower back in an awkward position to pick up the box.
The applicant immediately felt pain in her lower back and struggled to lift her body back up.
The applicant worked on that day, hoping that the pain would abate. However, the following day she struggled to get out of bed due to the extreme pain and discomfort that she was experiencing.
Eventually, the applicant consulted Dr Marc Coughlan, a neurosurgeon.
Dr Coughlan has now suggested a fusion operation.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) reasonableness of surgery proposed by Dr Coughlan in relation to the condition and possible detrimental outcomes.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution to the dispute.
The matter proceeded out of Teams audio-visual link on 24 October 2022. The applicant was represented by Mr Andrew Parker and the respondent by Mr Paul Barnes, both of counsel.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:
(a)    Application to Resolve a Dispute dated 6 September 2022;
(b)    Reply dated 29 September 2022, and
(c)    Application to Admit Late Document dated 20 October 2022.

Applicant’s statements

The respondent did not seek to cross examine the applicant. In her original statement dated 6 September 2022, the applicant says that since the date that she suffered the injury, her work capacity has fluctuated due to pain and restrictions. There have been periods when she was able to perform suitable duties however, at times, she required periods off work due to deteriorating symptoms.
Dr Malek, her general practitioner (GP) prescribed Tylenol, Endep and Lyrica for pain relief which she continued to take as of the date of the statement.
The applicant was also referred by Dr Malek to Dr Hasher Kadavil, pain specialist.
She was continuing to undergo physiotherapy and had also undergone two injections in her lower back to assist with the pain. However, this only provided short-term relief.
The applicant says that due to her continuing symptoms and restrictions, she was referred to Dr Mark Coughlan who recommended that she undergo an L4 perineural injection which she underwent on 3 November 2021. Her symptoms were relieved for only one day following that treatment.
The applicant notes that Dr Coughlan has now recommended that she undergo an L5/S1 anterior lumbar fusion. She says that she has undertaken various other remedial regimes of a conservative type including physiotherapy exercises, hydrotherapy, injections and pain relief medication. All of these conservative measures have been unable to provide any long-term relief.
The applicant views the proposed surgery as her best option to hopefully regain some functionality and mobility that will enable her to return to work and regain control over her life.
Due to her chronic pain and restrictions, the applicant says that Dr Malek referred her to consultant psychologist Vivienne Caroll. She consulted that practitioner four or five times and was also prescribed Seroquel by Dr Malek. She says that her physical condition and symptoms have significantly impacted her mental well-being and that she had struggled to come to terms with her condition given the pain that she has been through. She feels hopeless and useless given that she now has to rely upon her husband to perform almost all domestic activities.
She continues to experience lower back pain, stiffness and discomfort. She struggles to walk, standing and sitting for long periods of time are impossible and she cannot stand for longer than 10 to 15 minutes without experiencing discomfort. She cannot sit down for long periods without feeling stiff and weak. She often needs to switch positions and stretch after she has been sitting down for long periods.
The applicant says that her sleep is disrupted due to back pain and that she needs to get up and walk around the house and stretch. The applicant’s most recent statement is dated 19 October 2022.
In that statement, she confirms the ongoing symptoms of pain and restriction of movement.
She continues to undergo physiotherapy and exercise therapy once a week as recommended by her treating doctors. She also undertakes stretches and exercises every day in an attempt to manage her pain and she continues to rely upon pain medication daily to help get through the day.
She continues to consult the pain specialist Dr Kadavil on a regular basis for management of her condition. She also continues to consult her GP Dr Malek regularly for update and review.
On 28 September 2022 and 11 October 2022, she underwent two L4-S1 MBRFs (Medial Branch Radiofrequency) to the right side, followed by the left side under the care of Dr Kadavil.
Finally, in her statement, the applicant says that despite the recent treatment, she continues to suffer ongoing pain, stiffness and discomfort in the back. She is desperate and wishes to undergo the surgery proposed by Dr Coughlan as a last resort.

Applicant’s medical rvidence

Dr Mark Coughlan, neurosurgeon

The applicant relies upon four reports of Dr Coughlan. Those reports are dated 22 January 2022, 26 March 2022, 6 May 2022 and 11 August 2022. Additionally, in a report dated 31 March 2022, Dr Coughlan set out the estimated cost of surgery proposed by him.
In his report of 22 January 2022, Dr Coughlan noted that “she does have quite marked discopathy at L5/S1 and to a lesser degree, L2/3 with vacuum phenomenon at L5/S1. She has also some degree of foraminal stenosis at that level.” Dr Coughlan recommended an MRI to assess neural compression and also a bone density study, bearing in mind that the applicant was then 60 years of age.
In another report to the GP, Dr Malik of 26 March, the recommendation for the proposed surgery is first raised in the following terms.
“This is an update on Kerri Hain. Kerri has had significant ongoing axial back pain. Her right leg pain has settled somewhat. Her bone density is on the osteopaenic side, and I have suggested that she give consideration to starting an agent such as Prolia.
Given that her back pain is quite severe and ongoing, I have requested an authorisation for an L5/S1 anterior fusion augmented by posterior pedicle screws. Her pain is mostly discogenic and emanating from L4/S1.
In terms of her returning to light duties, this is reasonable and appropriate but she should limit her lifting to no more than 2 kilograms and also have frequent breaks and limit the amount of sitting and standing.”
Dr Coughlan’s next report dated 6 May 2022 is directed to iCare. It is apparent that that report is in response to a request for further information by iCare. In that report, Dr Coughlan says relevantly:
“1.     Quote has been provided dated 30 March 2022.
2.     Considering Kerri injured herself in the course of her work duties, and the mechanism of injury is consistent with her subsequent symptoms and imaging, I believe Kerri’s employment is a substantial contributing factor to the need for surgery.
3.     It is estimated the patient would be in hospital for 5-7 nights and would also require an HDU that is a bed the night of the surgery.
4.     There will be costs for the hardware used in surgery, however costs of any prosthesis used will be itemised post-operatively.
5.     It is unlikely there will be any aids or equipment required post-surgery, however this need will be assessed post-operatively by the hospital physiotherapist.
6.     An approximated timeframe for returning to work on suitable duties is reduced hours at around 12 weeks and full hours around 16 weeks. Gradually increasing physical activity is usually guided by a physiotherapist.
7.     Initial restrictions when returning to work will include reduced hours; no heavy lifting; no repetitive movements of bending, twisting, pushing, pulling; regular short walks; no sitting or standing for longer than 20 minutes at a time.
8.     An approximated timeframe for returning to preliminary duties is around 24 weeks under the guidance of a physiotherapist.
9.     It is usually recommended after this surgery that patients attend physiotherapy or exercise physiology from six weeks post-operatively, twice weekly for eight weeks. Analgesic medication requirements are managed by the patient’s GP.
10.   It is unlikely the proposed surgery will directly result in further surgery anytime soon.
Please do not hesitate to contact my rooms if you require any further information.”
Dr Coughlan’s final report is directed to the applicant’s solicitors and dated 11 August 2022. In that report, Dr Coughlan responds to specific questions raised by the applicant’s solicitors, including the following questions and answers:
“8.    Is the proposed surgery causally related to the subject injury?
The mechanism of injury, subsequent symptoms and imaging are all closely correlated.
9.      Is the proposed surgery reasonably necessary?
Considering Kerri’s pain and her associated pathology, I do believe the proposed surgery is reasonably necessary.
10.   Has treatment to date been reasonably necessary in respect of management of Kerri’s symptoms?
I have not performed any surgery on Kerri yet.
11.   Has Kerry exhausted conservative treatment measures warranting the need for her to undergo the proposed surgery?
There is no conservative treatment that would adequately address Kerri’s pathology and hence improve her symptoms.
12.   Do you agree/disagree with Dr Casikar’s opinion in respect of the proposed surgery?
From a surgeon’s perspective, all decisions and assessments are correlated and based on imaging and the severity of a patient’s reported symptoms. As outlined in Q8, the mechanism of injury, subsequent symptoms and imaging are all closely co-related. Kerri’s back pain is quite severe and ongoing. It is mostly discogenic and emanating from L5/S1. I believe the proposed surgery will address Kerri’s symptoms appropriately.
13.   Is the proposed surgery a widely accepted procedure in respect of management of Kerri’s injury?
Yes, it is well documented. This surgery is appropriate for Kerri’s type of injury. Additionally, Dr Casikar commented on Kerri’s osteopaenia and how this may affect the success of the surgery. I aim to mitigate this issue with the insertion of posterior pedicle screws. She has also been commenced on Prolia.”

Dr Peter Khong, neurosurgeon and spine surgeon

The applicant also relies upon the opinion expressed by Dr Khong in his report of 29 June 2022. I have read Dr Khong’s report and note in particular the following paragraphs of that report:
“4.    Your diagnosis.
Lower back pain due to severe exacerbation of previously asymptomatic, pre-existing degenerative changes in the lumbar spine (likely from L5/S1).
5.     Your prognosis.
Mrs Hain has had over a year of worsening lower back pain. She has severe degenerative disc disease at L5/S1. The prognosis is poor without surgery.
6.     In your opinion, was our client’s employment with their employer a substantial contributing factor to the injury?
Employment was a substantial contributing factor. Mrs Hain did not have back pain prior to her injury and was working full-time doing work that involves significant manual labour without restrictions.
7.     In your opinion, are the medical restrictions currently placed on our client appropriate?
Yes.
8.     Your opinion as to the future management of our client’s injuries.
Mrs Hain has failed non-operative management options. Her pain has persisted for over a year. I would recommend a fusion at L5/S1.
…
10.   Taking into consideration the Section 78 notice dated 16 June 2022 and the medical opinion of Dr Casikar, are you of the medical opinion the proposed surgery by way of L5/S1 anterior lumbar fusion is as recommended by Dr Coughlan is causally related to the subject injury? If so or if not, please provide your reasoning.
The proposed surgery is causally related to the subject injury. Mrs Hain did not have significant lower back pain prior to her lifting injury at work. Her injury caused an acute exacerbation of previously asymptomatic pre-existing degenerative changes in her lumbar spine. Her pain persists over a year post injury.
11.   Are you of the medical opinion, the proposed surgery is reasonably necessary? If so or if not, please provide your reasoning.
The proposed surgery is reasonably necessary. Mrs Hain has had over a year of persistent and worsening lower back pain. It affects most activities of daily living. She has severe degenerative disc disease at L5/S1 with loss of disc space height and hydration and retrolisthesis. She has failed all non-operative management options. A fusion at L5/S1 aims to correct the structural deformity at L5/S1 and immobilise this painful motion segment.
…
13.   Dr Casikar is critical of the proposed surgery as recommended by Dr Coughlan. Could you please provide your opinion as to whether you agree and/or disagree with his opinion in respect of the proposed surgery? Please provide your reasoning.
I do not agree. Mrs Hain has failed all non-operative management options. Her pain persists and significantly affects her ability to work and activities of daily living. Her pain is unlikely to improve without surgery. Fusion at L5-S1 aims to correct the structural deformity and immobilise this presumed painful motion segment.
14.   Are you of the medical opinion our client has exhausted conservative treatment measures warranting the need for our client to undergo the proposed surgery? If so or if not, please provide your reasoning.
Yes. Mrs Hain has trialled analgesia, a steroid injection, physiotherapy and exercise physiology. I understand Mrs Hain has seen a pain specialist and has been recommended some further injections and possibly radiofrequency ablation of the facet joints. Whilst this is reasonable, it is unlikely to give her long-term relief.
15.   Finally, are you of the medical opinion the proposed surgery is a widely accepted procedure in respect of the management of our client’s injury? If so or if not, please provide your reasoning.
The proposed surgery is widely accepted for discogenic pain which has not responded to non-management treatment options.”

Respondent’s medical evidence

The respondent relies on the report of Dr Vidyasagar Casikar, neurosurgeon, dated 18 May 2022.
Dr Casikar examined the applicant and had available the relevant scans. He concluded:
“Opinion
Ms Hain, under normal circumstances, should have recovered in about two to three weeks. Her persistent present complaints are due to pre-existing degenerative disease of the lumbar spine. Perhaps these are also due to her depression. This is my clinical opinion. This requires further evaluation by a psychiatrist.
As far as Dr Coughlan’s opinion regarding the spinal fusion is concerned, I am not sure if this is likely to benefit Mrs Hain. Spinal fusion on the background of degenerative disease and depression has a poor outcome.”
Dr Casikar was asked to respond to specific questions as follows:
“In answer to your specific questions:
1. Based on your clinical examination of Mrs Hain and review of the attached correspondence, what is the diagnosis for Mrs Hain’s back presentation? Could you please explain whether it is consistent with any neuro compressive effect and if not, what the likely pain generators are?
Based on my clinical examination and review of the attached correspondence, the diagnosis is constitutional degenerative disease of the lumbar spine, and workplace aggravation.
There is no evidence of any neuro compressive effect because the neurological examination is normal. Mrs Hain’s pain generators are probably due to degenerative disease of the lumbar spine.
It is also possible that pain is a result of Mrs Hain’s depression. Pain is a symptom and not a diagnosis. The relationship between her depression and her chronic pain needs to be evaluated further by a psychiatrist. This is outside my area of expertise.
2. Could you please discuss whether an anterior L5-S1 fusion with posterior pedicle screws (two-stage procedure) will have a measurable positive impact on Mrs Hain’s symptoms and function. Please consider:
a.The specific indications for this surgery and whether they are met by Mrs Hain. Please explain your rationale, making reference to any relevant literature.
b.Other treatments that Mrs Hain benefit from. Could you please discuss type, frequency, duration and possible outcome?
c.What is the likely functional outcome of the operation in Ms Hain’s case?
d.Considering the above, in your opinion, does Mrs Hain make the reasonably necessary criteria for the surgery and will achieve a positive outcome?
I do not believe an L5-S1 fusion with pedicle screw and a two-stage procedure with a 360-degree fusion is likely to have any benefit.
It is well-known that spinal fusion in a workers’ compensation matter has a very poor outcome. There are multiple references to this effect. If you wish, I can send you a list.
The specific indications for this surgery are not met by Mrs Hain. There is no evidence of instability. The neurosurgical examination is normal. Under these conditions, I do not believe a spinal fusion is useful. I have included a list of the relevant literature and you can take a look at it.
Mrs Hain would benefit from regular home-based exercise and perhaps input from a psychiatrist. I believe these are the normal measures to deal with chronic back pain.
I did not believe that a spinal fusion with instrumentation will be useful, considering the fact that Mrs Hain has osteopaenia.
The functional outcome of this operation is likely to be very poor.
In my opinion, Mrs Hain does not meet the reasonably necessary criteria for the surgery, and it is very unlikely that it will achieve a positive outcome.”

SUBMISSIONS

I had been assisted by relevant submissions by counsel for both parties.

Respondent’s submissions

The thrust of the submissions made by Mr Barnes on behalf of the respondent was that I am not persuaded by the opinions express by the applicant's treating surgeon, Dr Coughlan in that his opinion was based upon an incorrect history. Mr Barnes noted correctly that in his report of 11 August 2022, Dr Coughlan opined:
“Considering Kerri injured herself during the course of her work duties, and was asymptomatic prior to the subject injury, I believe her employment was a substantial contributing factor.”
Mr Barnes also correctly pointed out that Dr Khong, upon whose opinion the applicant also relies said relevantly in his report dated 29 June 2022 that the applicant suffered from:
“Lower back pain due to severe exacerbation of previously asymptomatic, pre-existing degenerative changes in lumbar spine (likely from L5/S1).”
Further, as Mr Barnes submitted, it is apparent from the clinical notes of Dr Malek, the applicant's GP, that on 10 December 2019, the applicant must have complained to him of some back symptoms as he then diagnosed “Degenerative disc disease, lumbar” and queried whether the applicant had "Mild Nerve Root Compression, R/S1".
Dr Malek had previously arranged for the applicant to undergo a CT of her lumbar spine on 8 April 2019 which demonstrated “Mild degenerative changes in the lumbar spine. No bony injuries are seen”.
A further CT of the lumbar spine was performed on 10 December 2019. In that report, the radiologist noted the following history:
“Clinical Notes
Lower back pain. Lower abdominal pain for two weeks.
Worse on walking and standing. Improvement while sitting. No paraesthesia or numbness.
Comment
Degenerative disc disease at L5/S1 with disc narrowing, degenerative gas formation and a mild to moderate disc bulge, more so on the right. There is possible compression of the right S1 nerve in the lateral recess.
There is no evidence of other nerve root compression or canal stenosis.
If the patient is symptomatic along in this distribution, perineural right S1 cortisone injection or an epidural injection of this level may be of clinical benefit.”
There is no evidence in the clinical notes that this suggested possible treatment was embarked upon by Dr Malek.
Mr Barnes also submitted that Dr Khong had failed to engage with the osteopaenia. Presumably as an indicator against the performance of the surgery.
Mr Barnes submitted that, in these circumstances, I should prefer the opinion of Dr Casikar and find that the proposed surgery is not reasonably necessary.

Applicant’s submissions

Mr Parker submitted that the evidence clearly established that the applicant was asymptomatic at the time of the work injury which caused an aggravation of underlying pre-existing degenerative change.
He had submitted that I would accept that the applicant had been working normally and undertaking her usual activities at the time she suffered the workplace injury. He noted that it was conceded by the respondent since the work injury, there was a history of a continuity of symptoms and that I would be satisfied that there had been an aggravation of the underlying condition, the effects of which were continuing.
Mr Parker referred to the report of the GP, Dr Malek, dated 25 June 2022, wherein he noted that the applicant had been a patient of the practice since 3 October 2014 and his patient since 7 December 2015. He also referred to the following history from the doctor’s notes:
“2.     The history you obtain from our client:
Workplace injury on 01/03/2021. She experienced low back pain after lifting a heavy box off the ground at work. Kerri initially felt a mild twinge in her back, which gradually escalated. Pain was made worse with movement and improved only slightly with rest at the time. She required multiple pain medications at the time to alleviate her pain...
5.     Your opinion on whether any incapacity is the result of the injuries at work and your assessment as to whether or not our client's employment was a substantial contributing factor to the injuries.
Kerri's incapacity is indeed a direct result of her workplace injury and still is a substantial contributing factor to her current condition...
9.     Are you of the medical opinion the proposed surgery by Dr Coughlan is reasonably necessary? If so or if not, please provide your reasoning.
I am of the opinion that the proposed anterior L5/S1 fusion with posterior pedicle screws is reasonably necessary as Kerri has exhausted conservative management with no real sustained improvement in her condition.”
Mr Parker also referred to the opinion of Dr Currie that the proposed surgery was appropriate and that the fusion at L5/S1 had the aim of correcting structural deformity and immobilise the presumed painful segment. He pointed out that Dr Currie was also of the view that the proposed surgery was widely accepted for discogenic back pain, which had not responded to non-management treatment options. He said that although the bar is low in terms of the test to be applied, in this case, there is a real prospect that the proposed surgery would considerably reduce the applicant's symptoms of pain and disability, thereby improving her capacity for work.
Mr Parker criticised the opinion of Dr Casikar, particularly, in regard to his conclusion that at least some of the applicant’s symptoms are psychologically determined, a diagnosis clearly not within the expertise of Dr Casikar.
Insofar as it may be relevant, Mr Parker noted that the respondent continued to make payments of weekly compensation to the applicant and was attempting to return her to work. The surgery had a real prospect of increasing the applicant's capacity to work, he submitted.

DISCUSSIONS AND FINDINGS

The applicant carries the onus to establish that the treatment is reasonably necessary, and that it “results” from injury s 60.
The test as to whether any treatment is reasonably necessary, developed in a series of decisions, including Bartolo v Western Sydney Area Health Service [1977] NSWCC1 (Bartolo); Rose v Health Commission(1986) 2 NSWCCR 32 (Rose); Ajay Fiberglass v Yee [2012] NSWWCCDP 431; and Sunrise T&D Pty Ltd v Le [2012] NSWWCCPD 47. Factors to be considered, include the medical opinions involved as to reasonable necessity of the treatment concerned, the range of alternative treatments, the cost of the relevant and alternative treatments, the actual or potential effects of the relevant treatment, and the place of the relevant treatments amongst the armoury of all treatments available for the condition.
In Bartolo, at [238], Burke CCJ approached the issue with the proposition: “If in reason, it should be said that the patient not to do without this treatment, then it satisfies the test of being reasonably necessary.”
In Clampett v WorkCover Authority (NSW) [2003] NSWCA 52; (2003) 25 NSWCCR 99 (Clampett) Grove J, Meagher and Santow JJA agreeing, noted that the trial judge had sought guidance from the principles discussed by Burke CCJ in Rose. Grove J referred to the dictionary definitions of “necessary” as being “indispensable, requisite, needful, that cannot be done without” (Shorter Oxford English Dictionary, 3rd Ed) and that “cannot be dispensed with” (Macquarie Dictionary). His Honour added at [23]:
“23. The essential issue is what affect flows from conditioning such qualities as reasonably.
The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation, it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the workers incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’, there is the statutory obligation specifically to have regard to the nature of the workers incapacity. It provides emphasis towards moderating the meaning of ‘necessary in these context’.
The series of cases was revisited by Roche DP in Diab at [76] to [91]. After reviewing the authorities, the Deputy President concluded at [88] to [90] (referring to the matters for consideration identified by Burke CCJ in Rose):
“88. In the context of S60, the relevant matters according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at [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.
89. With respect to point (d), it should be noted that while the effectiveness of the treatment is irrelevant 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 own 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. ‘[No] paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its contact’”.
Roche DP also noted that “reasonably necessary” does not mean absolutely necessary: Diab, at [86].
It should also be said that the matters for consideration when dealing with the question of reasonable necessity, as summarised in Diab are not criteria or factors to be weighed in a form against counting exercise. As Roche DP said himself, the ultimate question is whether the treatment is reasonably necessary. It is not whether it is absolutely necessary. Similarly, it is not required that the proposed procedure carries no risk, or that it has chances of success greater than 50%.
I have read Dr Coughlan's opinions expressed in various letters as a whole (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11) (Hancock).
I have viewed his opinions with the appropriate weight that should be afforded him as the treating neurosurgeon who has treated the applicant for some time. He has noted that the applicant, and this does not seem to be challenged by the respondent, has undergone all alternative modalities of treatment without any significant or lasting relief. He is of the opinion that there is no conservative treatment that would adequately address the applicant's pathology and improve her symptoms. His decisions and assessments are correlated and based on imaging and the severity of the applicant's symptoms.
He has considered the underlying condition of osteopaenia and Dr Casikar's suggestion that that condition may affect the success of the surgery. Dr Coughlan has considered this and states that he aims to mitigate for potential use with the insertion of posterior pedicle screws. He had also recommended a course of Prolia prior to the surgery to assist in mitigating the potential effect of the osteopaenia present.
It is pertinent also to note that Dr Coughlan is of the opinion that successful surgery will improve the applicant's general mobility and capacity, including her capacity to work. He foreshadowed a possible return to normal duties.
In his supporting report, Dr Khong noted the fact that the applicant had failed all non-operative management options. He pointed out that the proposed fusion at L5/S1 was aimed to correct the structural deformity at L5/S1 and immobilise the painful motion segment. He was of the opinion that the applicant's pain was unlikely to improve without surgery.
As to causation, the medical records of Dr Malek, the GP, clearly indicate that the applicant did have some painful back symptoms in April 2019 and December 2019, which led to investigation. That investigation revealed the presence of degenerative changes. However, there is no evidence of any further complaint of back pain and/or investigation or treatment evident from the clinical notes between December 2019 and the workplace injury on 1 March 2021.Additionally, the applicant appears to have been capable of performing her normal work duties during that period of time.
The applicant does not mention in her statements any symptoms or ongoing pain between December 2019 and the date of the injury. She was not required for cross-examination. I am satisfied that as of the date of the workplace injury, she was asymptomatic. I am also satisfied that the mechanism of the workplace injury caused a significant aggravation of the underlying degenerative change resulting in ongoing pain and restriction.
I have carefully considered the opinion expressed by Dr Casikar. There is simply no evidence that any of the applicant's symptoms are psychologically determined. Dr Casikar says that:
“As far as Dr Coughlan's opinion regarding the spinal fusion is concerned, I am not sure if this is likely to benefit Mrs Hain. Spinal fusion on the background of degenerative disease and depression has a poor outcome...
I do not believe that a spinal fusion with instrumentation will be useful, considering the fact that Ms Hain has osteopaenia.”
Dr Coughlan has taken this into consideration and proposes to mitigate the potential involvement of the underlying condition of osteopaenia by the use of the insertion of pedicle screws.
I prefer the opinion of Dr Coughlan as supported by that of Dr Khong. I considered that the proposed surgery offers reasonable chances of actual and effective reduction in symptoms, together with added benefits such as increased activity, reduced medications and quality of life.
I conclude that the proposed L5/S1 anterior fusion augmented via posterior pedicle screws is reasonably necessary.

Results from Injury

I have discussed the claimant's antecedent history and its potential consequences above.
Causation is a question of fact (March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506 (March) per Mason CJ at [16]. The worker need only establish, applying the common sense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796; March per Mason CJ at [515] and Dean J at 522 ), that the treatment is reasonably necessary) as a result of “the injury” (see Taxis Combined Services (Victoria) Pty Ltd v Shockman [2014] NSWCCPD 18 at [40]-[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).
I am satisfied that the workplace injury caused a significant aggravation of the underlying degenerative condition and that the applicant was asymptomatic at the time. The effects of the aggravation are continuing. I therefore conclude that the proposed L5/S1 anterior fusion augmented via posterior pedicle screws is reasonably necessary as a result of the injury in March 2021.

SUMMARY

The applicant sustained injury to her lumbar spine on 1 March 2021 in the form of aggravation of pre-existing degenerative changes in her lumbar spine. As a consequence, the surgery in the form of L5/S1 anterior fusion augmented by posterior pedicle screws is reasonably necessary treatment.

[2023] NSWPIC 50

13 February 2023