Hamilton v ERBD Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hamilton v ERBD Pty Ltd [2025] NSWPIC 454
APPLICANT:	Noel Hamilton
RESPONDENT:	ERBD Pty Limited
MEMBER:	Karen Garner
DATE OF DECISION:	3 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for medical expenses pursuant to section 60 for surgery being L3/4 and L4/5 right sided decompression; applicant had accepted injury to lumbar spine; whether the surgery was reasonably necessary as a result of the accepted injury; Held – the surgery was reasonably necessary as a result of the accepted injury; the respondent to pay the applicant’s medical expenses in respect of the surgery pursuant to section 60.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. Surgery, being L3/4 and L4/5 right sided decompression recommended by Mr Yanni Sergides, is reasonably necessary as a result of the injury pursuant to ss 59 and 60 of the Workers Compensation Act 1987 (the 1987 Act). The Personal Injury Commission orders: 2. The respondent to pay the costs of and incidental to L3/4 and L4/5 right sided decompression recommended by Mr Yanni Sergides pursuant to s 60 of the 1987 Act. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

It is not in dispute that Noel Hamilton (the applicant), currently aged 59 years, sustained injury to his back (the injury) on 15 March 2022 in the course of his employment with ERBP Pty Limited (the respondent).
The applicant made a claim for medical and related expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) in respect of L3/4 and L4/5 right sided decompression recommended by Mr Yanni Sergides (the surgery).
The respondent’s insurer denied liability for that claim on the ground that it disputed that the surgery is reasonably necessary as a result of the injury as required by s 60 of the 1987 Act.
The applicant also made claims for weekly compensation and expenses of hydrotherapy treatment in respect of the injury, which were also denied by the insurer.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

At a conciliation and arbitration hearing on 23 July 2025, the applicant was represented by Ms Kavita Balendra, counsel, instructed by Melinda Griffiths Lawyers. The respondent was represented by Mr Damien Toohey, counsel, instructed by Gair Legal.
At the hearing, the parties reached agreement to resolve the claims for weekly compensation and expenses of hydrotherapy treatment on terms recorded in a Certificate of Determination – Consent Orders issued by the Personal Injury Commission (the Commission) on
23 July 2025.
The hearing proceeded on the basis that the only remaining issue in dispute concerned the applicant’s claim for expenses pursuant to s 60 in relation to the surgery.
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 surgery is reasonably necessary as a result of the injury as required by s 60 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply to ARD and attached documents, and
(c)    Application to Lodge Additional Documents (ALAD) which contained a quote issued Mr Yanni Sergides in respect of the surgery (admitted into evidence pursuant to paragraph 1 and Notation A of direction issued on 23 July 2025).

Oral evidence

No oral evidence was called and no application was made for leave to cross-examine.

Applicant’s evidence

In a statement dated 8 May 2025, the applicant stated:
(a)    he sustained the injury in the course of his work on or about 15 March 2022, when he slipped and fell backwards onto his back;
(b)    prior to the injury, he had no previous accidents or back injuries and no difficulties undertaking heavy work duties on a full-time basis, normally working 38 hours per week, plus overtime, and 10 hours each day;
(c)    as a result of the injury, he has suffered with various ongoing symptoms which include: right sided lumbosacral pain; shooting pain in the right leg and foot; numbness in his legs; reduced function of the right leg; psychological disturbance; low mood; anxiety; worry and sleep disturbance;
(d)    as a result of the injury and symptoms he can no longer perform or has ongoing difficulty in performing many day to day activities;
(e)    he has been diagnosed with a somatic pain disorder, which Dr Judith Clarke in a report dated 12 January 2023 stated was caused by pain from the injury and recommended treatment by a multidisciplinary pain team;
(f)    he has undergone various treatments which include:
(i)treatment by a pain specialist;
(ii)radiofrequency treatment and rehabilitation;
(iii)hydrotherapy treatment, which he finds is most helpful and enables him to continue to work at reduced capacity;
(iv)gymnasium training was slightly helpful but he was required to cease that after 3 months when the insurer stopped funding the cost, and
(v)psychology treatment.
(g)    treatment of his pain has been limited by his intolerance to pain medications, his allergy to cortisone and the insurer ceasing approval for treatment in around May 2024;
(h)    despite ongoing pain and symptoms, the applicant has returned to work, although he is now only able to work 4 hours each day, 5 days each week, and he finds that his symptoms are particularly increased by the end of each working day;
(i)    Mr Yanni Sergides, neurosurgeon, offered the surgery to treat the injury, and
(j)    he is “considering having surgery” and sought approval for the surgery from the insurer.

Treating medical evidence

The treating medical evidence includes the following reports and clinical records:
(a)    clinical records of Dubbo Base Hospital, including Dubbo Base Hospital Discharge Summary dated 15 March 2022, in relation to the applicant’s hospital admission on 15 March 2022 which reported on the applicant’s presentation, treatment and discharge plan in relation to the applicant’s admission to the hospital on 15 March 2022 following the injury;
(b)    clinical records of Western Plains Medical & Dental Centre which recorded the applicant’s various attendances in relation to his lumbar spine;
(c)    imaging report dated 30 March 2022, which reported that a CT Lumbar Spine showed lumbosacral transitional vertebrae with background congenital canal narrowing and multilevel degenerative spondylosis, with marked canal stenosis at L4/L5 and L5/S1 with potential impingement of the transiting L5 and S1 nerve roots and potential impingement of the right exiting L4 nerve root and bilateral L5 nerve roots;
(d)    Workplace Assessment (Complex) & Case Conference Report of Recovery dated 23 May 2022 which reported on an assessment of the applicant’s progress following the injury;
(e)    letter of referral to Dr Con Vasili dated 22 June 2022;
(f)    report of Dr Con Vasili, orthopaedic surgeon, dated 6 July 2022, which reported that the applicant described constant lower back pain and paraesthesia along the right lateral thigh and calf following the injury, which was mildly relieved by pain medication and that twice weekly physiotherapy also provided temporary relief. Dr Vasili reported that, on examination, the applicant had an antalgic gait, his spinal range of motion was restricted by pain, the lower limb neurological assessment demonstrated intact light tough sensation and power, depressed reflexes and absent neural tension signs. Dr Vasili noted that the lumbar spine CT scan from 30 March 2022 reported multilevel spondylosis with marked L4/5 and L5/S1 canal stenosis, marked right L4/5 and left L5/S1 foraminal stenosis, and severe right L5/S1 foraminal stenosis. Dr Vasili stated that he would seek approval for a lumbar spine MRI scan and a bone scan with SPECT CT;
(g)    report of an MRI Lumbar Spine on 13 July 2022, which relevantly reported: degenerative changes with compression of the right L3, right L4 and both L5 nerve roots; spinal canal narrowing, most marked at L4-5;
(h)    report of Bone Scan on 15 July 2022, which relevantly reported: markedly active bilateral L4/5 facet joint arthritis; mildly active right L5/S1 facet joint arthritis; no recent fracture; and patchy degenerative changes elsewhere in the lumbar spine and in both SI joints;
(i)    report of Dr Con Vasili, orthopaedic surgeon, dated 3 August 2022, which reported that the applicant continued to complain primarily of lower back pain rather than lower limb pain. Dr Vasili stated that the lumbar spine MRI scan reported spondylosis with compression of the right L3, right L4 and both L5 nerve roots, and L4/5 spinal canal stenosis. Dr Vasili stated that the bone scan with SPECT CT reported marked bilateral L4/5 facet joint and mild right L5/S1 facet joint uptake. Dr Vasili recommended CT guided bilateral L4/5 facet joint injections for diagnostic and therapeutic purposes, but noted that the applicant was allergic to cortisone. Dr Vasili stated that he would seek approval for a consultation with a pain specialist;
(j)    letter of referral to Dr Sanjay Sinha dated 24 August 2022, in relation to the applicant’s lower back pain following the injury, which noted that the applicant had an adverse reaction to cortisone;
(k)    Rehabilitation Injury Management Progress Report Number 1 by Ray McGhee, rehabilitation consultant, dated 30 August 2022, which reported on the applicant’s revised return to work plan, which involved return to work performing suitable duties for 4 hours per day for 4 days per week;
(l)    report of Ray McGhee, rehabilitation consultant, dated 27 February 2023, which reported that the applicant had recently undergone a procedure with Dr Nathan Taylor, pain management physician, and subsequently experienced a significant reduction in the discomfort and numbness in his leg and shooting pains, although he had ongoing intense lower back discomfort. Mr McGhee recommended that the applicant recommence physiotherapy and continue with hydrotherapy;
(m)     report of John Silcock, independent physiotherapy consultant, dated
4 August 2023, which reported on an independent review of physiotherapy treatment and exercise physiology treatment which had been provided to the applicant. It noted that the applicant had been provided with in excess of 64 physiotherapy treatment sessions and had been concurrently provided with exercise physiology undertaken in an aquatic environment. Mr Silcock recommended that no further exercise physiology nor physiotherapy treatment be approved to treat the injury because of concern that it was inadvertently eroding self-efficacy in a way which was unhelpful. Dr Silcock recommended that a trial of self-management be implemented to manage the applicant’s chronic mechanical low back pain. Mr Silcock acknowledged that the applicant had not achieved an acceptable outcome with treatment and recognised the need to explore alternative treatment options for the applicant;
(n)    report of James Etter, psychologist, of the Northern Pain Centre, dated
30 August 2023, which reported on the applicant’s initial assessment and proposed plan to enable the applicant to implement effective pain management strategies;
(o)    report of Dr Judith Clarke, consultant psychiatrist, dated 23 December 2023, which reported that the applicant presented with a DSM-5 diagnosis of a Somatic Symptom Disorder with predominant pain, moderate, in partial remission, secondary to chronic back pain which the applicant experienced as a result of the injury;
(p)    numerous reports of Dr Nathan Taylor, pain management physician, between
5 October 2022 and 23 September 2024 which reported on the applicant’s symptoms, various treatments and progress. The reports noted that: the applicant cannot undergo a facet joint injection due to a history of severe anaphylaxis to particular steroids; on 1 December 2022, the applicant underwent diagnostic medial branch blocks to bilateral L3 to S1 facet joints, which resulted in no change in the applicant’s pain and, despite CT and MRI changes, indicated that the applicant’s pain was not coming from the facet joints; on 6 December 2022, the applicant continued to experience ongoing back pain and radicular right leg pain with some foraminal stenosis and the pain conformed to the L5 distribution on the right-hand side; on 9 February 2023, the applicant underwent pulsed radiofrequency treatment to the right L5 nerve root, which after a post-treatment flare up of pain, subsequently resulted in greatly improved leg pain; on
15 March 2023, the applicant was still experiencing back pain and was undergoing exercise physiology treatment and increasing his activity levels; on
19 June 2023, the applicant’s leg pain had essentially resolved following pulsed radiofrequency treatment, but despite continuing to regularly undergo physiotherapy and exercise physiology treatment, the applicant continued to struggle with ongoing right-sided lumbosacral pain and also experienced psychological symptoms; on 31 July 2024, the applicant was continuing to experience leg pain and had lost reflexes of the right leg; on 23 September 2024, the applicant described ongoing pain and increasing weakness in his right leg and Dr Taylor recommended the applicant be reviewed by spinal surgeon, Mr Yanni Sergides;
(q)    Allied Health Recovery Request by Nicole Gross, rehabilitation provider, dated
29 February 2024, which reported that the applicant had been attending hydrotherapy on a weekly basis as well as completing a gradual intensity gym program for the past 3 months. Ms Gross recommended that the applicant increase his work hours and sought approval for ongoing hydrotherapy;
(r)    report of John Silcock, independent physiotherapy consultant, dated
22 March 2024, which recommended that exercise physiology treatment and gymnasium membership provided to the applicant to treat the injury should conclude. Mr Silcock acknowledged that continuing to insist that the applicant required exercise physiology assistance beyond two years post-injury could inadvertently perpetuate an unhelpful reliance on a therapeutic relationship. Mr Silcock recommended that if the applicant cannot cope with his diagnosed somatic pain disorder without ongoing exercise physiology guidance that further diagnostic investigations be undertaken and alternative treatment explored;
(s)    report of James Etter, psychologist, of the Northern Pain Centre, dated
22 March 2024, which reported that the applicant continued to report chronic pain in the lumbosacral region and proposed continued psychological treatment sessions;
(t)    clinical records of Dubbo Base Hospital in relation to the applicant’s hospital admission on 28 July 2024 for management of multiple sites of body pain issues on a background of the injury;
(u)    report of an MRI Lumbar Spine on 15 August 2024, which reported: transitional vertebra at the lumbosacral junction with lumbarisation of S1 and a rudimentary S1/2 intervertebral discs; stable lower lumbar spondylotic changes; large posterocentral and left paracentral disc protrusion at L5/S1 similar to the prior study; moderate to severe spinal canal stenosis at L4/L5 and moderate canal encroachment at L5/S1 again seen;
(v)    report of Dr Clarence Foo, injury management consultant, dated 15 August 2024, which reported on a file review of the applicant’s diagnosis of lower back pain injury and somatic disorder. Dr Foo noted that the Certificate of Currency from
22 June 2024 to 22 July 2024 indicated that the applicant had capacity for some type of work for four hours a day, five days a week, subject to various physical restrictions. Dr Foo noted that the applicant’s treating general practitioner advised that the applicant’s work capacity was unlikely to be upgraded. Dr Foo reported that it appeared unlikely that the applicant would be able to return to his pre-injury duties as a cleaner, as he was still symptomatic and on partial capacity with documented lumbar spine pathologies;
(w)   report of Mr Yanni Sergides, neurosurgeon, dated 18 November 2024, which reported that, despite conservative treatment, the applicant had chronic and severe right-sided radicular symptoms, sciatica which is predominantly in an L5 nerve root distribution. It reported that an MRI scan performed in August 2024 showed a Grade 1 spondylolisthesis at L4/5 with a fairly large disc prolapse, which had not changed significantly at all between a previous scan. Mr Sergides reported that he offered the applicant an L3/4 and L4/5 right-sided decompression, noting that the disc prolapses are at L4/5 but at L3/4 there is also severe lateral recess stenosis. Mr Sergides reported that he explained to the applicant what the surgery would involve, including that the applicant would be in hospital a couple of days and, because he comes from a regional area, would likely spend four or five days in Sydney before returning home. Mr Sergides noted that catastrophic risks such as paralysis are, fortunately, rare but other risks include CSF leak, infection, no improvement in symptoms and the medical risks. Mr Sergides reported that the applicant is “keen to proceed” and that he would seek the insurer’s approval for the surgery. Mr Sergides reported that the applicant would not require any specific rehabilitation but he should continue with the hydrotherapy that helps his back pain. Mr Sergides stated that the applicant would need to take three months off work entirely before being able to return to his current work duties;
(x)    surgical fee estimate of Mr Yanni Sergides, neurosurgeon, dated
18 November 2024, which estimated a surgical fee of $8,285 for right L3/4 and L4/5 decompression, possibly with microdiscectomy to be performed by Mr Sergides. It noted that additional fees relevant to the surgery were surgical assistant and anaesthetist fees and hospital and additional costs;
(y)    report of James Etter, psychologist, of the Northern Pain Centre, dated 20 December 2024, which reported on the applicant’s progress and sought approval for further psychology treatment sessions, and
(z)    various Certificates of Capacity from 28 April 2022 to 14 April 2025 in relation to the applicant’s lower back pain and somatic disorder following the injury.

Vocational evidence

The evidence included a Vocational Assessment Report and Return to Work Plan by Linked Rehab dated 26 August 2024 and a Labour Market Analysis Report dated
15 November 2024.

Other evidence

Other evidence included a list of payments.

Independent medical evidence

Dr Graeme Doig, general orthopaedics and trauma, independent medical expert qualified by the respondent

By a report dated 31 January 2022, Dr Graeme Doig:
(a)    recorded a history and noted that the applicant denied any previous problems or injuries to his spine;
(b)    recorded that the applicant reported continuing constant lower-back pain particularly on the right side, with restricted movement and radicular symptoms affecting the right leg;
(c)    recorded that the applicant continued to consult with his pain specialist, receive weekly physiotherapy treatment and twice weekly exercise physiology treatment to undertake hydrotherapy and gym strengthening;
(d)    recorded that, on examination: the applicant remained tender to deep palpation at the right lumbo-sacral area and was also tender over the trochanteric bursa at the right hip;
(e)    diagnosed a soft-tissue injury to the lumbo-sacral spine with an aggravation of pre-existing degenerative change, including radicular symptoms in the right leg and an absent ankle reflex, and
(f)    expressed the opinion that it was unlikely that the applicant would upgrade to pre-injury duties in the future and that current work restrictions may have to permanently remain in place.

Dr Anthony Smith, orthopaedic surgeon, independent medical expert qualified by the respondent

By a report dated 7 March 2025, Dr Anthony Smith:
(a)    recorded a history;
(b)    recorded that, on examination: the applicant had a normal lumbar lordosis; the applicant could reach only to the knees and resumed the erect position normally; back extension was 5, lateral flexion was10° rotation was 15° to the right and left, straight leg raising went to 90° bilaterally and the applicant could sit up to that. He has no neurological deficit in either lower limb; the right hip flexed to 120°, and had 10° of internal rotation and 15° of external rotation; the left hip flexed to 120°, and had 10° of internal rotation and 20° of external rotation; the applicant did not complain of any low back pain, or any other pain with examination of his hips;
(c)    stated a diagnosis of lumbar degenerative disease, noting that the incidence of that pathology in the applicant’s age group was over 97%; bilateral hip osteoarthritis, which the applicant was likely unaware of;
(d)    in relation to the psychiatrist’s diagnosis of somatic symptoms disorder, stated:
“The psychiatrist is of the opinion that he has somatic symptoms disorder, which is that he thinks he is sick and going to get sicker. This condition is seen in people who have no identifiable pathology that is likely to be of any significance. Hypochondriasis has a similar meaning.”
(e)    expressed the opinion that in the injury, the applicant could have sustained an exacerbation/aggravation to his pre-existing, possibly more severe than average, lumbar degenerative disease, noting that no post-traumatic lesion was seen in the CAT scan on 30 March 2022;
(f)    expressed the opinion that the applicant’s employment and injury was a substantial contributing factor to an aggravation to the applicant’s spinal degenerative disease;
(g)    expressed the opinion that the applicant “has long-since recovered from that exacerbation and now has an inorganic reaction”;
(h)    stated that the applicant requires no treatment for his lumbar degenerative disease although he may respond to psychological treatment;
(i)    expressed the opinion that the applicant’s pre-existing spinal degenerative disease is not responsible for very much of the applicant’s current symptoms. Dr Smith opined that the applicant recovered after three months at the very most following the injury and likely sooner than that;
(j)    stated that the applicant is fit to work full-time, subject to certain physical restrictions;
(k)    stated that any decompression was unlikely to provide any benefit for the reason that the applicant did not have any symptoms which were consistent with symptomatic spinal canal stenosis;
(l)    stated that he was unable to suggest any other musculoskeletal treatments that would be likely to be beneficial;
(m)     stated that it was difficult to predict the outcome and timeframe for recovery in the event that the applicant underwent a spinal decompression operation, and
(n)    acknowledged that hydrotherapy postoperatively can provide symptomatic relief for variable periods, noting that it is not a curative treatment.

Associate Professor Anthony Brown, consultant occupational physician, independent medical expert qualified by the applicant

By a report dated 21 February 2025, Associate Professor Anthony Brown:
(a)    recorded that the applicant reported no previous injuries to his back prior to the injury;
(b)    recorded that the applicant reported that, as a result of the injury, he experiences ongoing symptoms which include significant pain in his lower back and down his right leg, some leg numbness and psychological stress;
(c)    recorded that the applicant reported that as a result of the injury, he experiences various ongoing functional difficulties and limitations;
(d)    recorded that the applicant underwent various treatments which included:
(i)radiofrequency nerve ablation, which was quite successful in reducing his pain, but the pain relieving effect only lasted about 14 months and his pain has recurred;
(ii)psychological treatment;
(iii)physiotherapy;
(iv)exercise physiology treatment;
(v)hydrotherapy, which has been most helpful, and
(vi)various exercises.
(e)    recorded that the applicant is unable to take strong painkiller medication;
(f)    recorded that the applicant reported that since the injury, he now works performing suitable restricted duties and limited work hours;
(g)    on examination, noted: slight tenderness to the right side of the lumbar spine; marked reduction in flexion and extension of his back/spine; reduced lateral flexion of his back/spine; reduced power of hip flexion and extension on the right side; slightly reduced power of right knee extension; a Pain Inventory indicated a severe interference in the applicant’s life by pain and clinically significant degree of pain catastrophisation; a DASS-21 score indicated moderate degree of anxiety;
(h)    recorded that the applicant clinically has signs of chronic back pain with L4/5 radiculopathy, has been diagnosed as having had Pain Somatisation Disorder (which represents a complication of chronic pain) and that he has indications of low self-efficacy and significant pain catastrophisation;
(i)    concluded that the applicant’s employment was a substantial contributing factor to the applicant’s employment and ongoing condition, noting that the applicant had no previous history of back problems prior to the injury;
(j)    opined that the applicant’s condition had stabilised and reached maximum medical improvement and he did not expect it to improve in the future although there may be some deterioration over the years;
(k)    assessed total 12% whole person impairment (WPI) in respect of the applicant’s lumbar spine;
(l)    opined that the surgery:
“[is a] legitimate treatment modality but not without potential risks and would need to be a personal choice by [the applicant]. Refusing spinal surgery would be a logical and rational decision…
… It is possible that spinal surgery may improve his pain and may lead to an increase in the amount he can do but this is by no means certain. It will be a personal choice as to whether he undertakes this treatment. As indicated above, I consider that [the applicant’s] regular hydrotherapy is unlikely to improve his condition but that its removal is likely to worsen it particularly in that it is currently helping manage his somatoform disorder.
…
… spinal surgery may improve him but there is a material risk that it might make him worse.”
(m)     stated that “[the applicant] continues to find that hydrotherapy is very beneficial and he has taken to paying for it himself because he considers it gets him through the days. Hydrotherapy by itself is unlikely to resolve his current pain or radiculopathy but it is improving his function. I consider that hydrotherapy is not so much a treatment for his back and radiculopathy as it is a treatment for his somatoform disorder because it is helping him manage his chronic pain”.
By a supplementary report dated 26 March 2025, Associate Professor Anthony Brown:
(a)    commented on the report of Dr Anthony Smith, orthopaedic surgeon, dated
17 March 2025;
(b)    agreed that degenerative disease of the spine is very common in the community on imaging and can be asymptomatic;
(c)    acknowledged that it was quite possible that the applicant had pre-existing lumbar degenerative disease but stated that he could not be certain because there was no medical imaging prior to the injury;
(d)    noted that the applicant had no previous back injury, pain nor symptoms prior to the injury;
(e)    noted that the applicant became symptomatic following the injury;
(f)    concluded that the injury was the main contributing factor to the aggravation and exacerbation of the applicant’s back pain to the point of making it symptomatic and that also resulted in development of a somatisation syndrome;
(g)    noted that on examination, he considered that the applicant had radiculopathy including radicular pain, weakness of right knee extension, equivocal right knee and ankle jerks and qualitative changes in skin sensation, which was not expected if the condition had resolved;
(h)    opined that the applicant’s lumbar spine symptoms were not temporary but were ongoing;
(i)    opined that decompression surgery suggested by Mr Sergides is an appropriate treatment for the applicant’s radiculopathy, and
(j)    noted that “spinal surgery is a big undertaking and there are rare but significant risks and it may not always work. Whether to have this surgery is a decision for [the applicant] to make. Not having the surgery would be a logical option”.

SUBMISSIONS

Counsel made the following written submissions in accordance with directions issued on
23 July 2025:
(a)    applicant’s submissions (undated);
(b)    respondent’s reply submissions (undated), and
(c)    applicant’s submissions in reply (undated).
Both the applicant and the respondent submitted that the appropriate test to be applied in determining whether the surgery is reasonably necessary as a result of the injury is that set out in Diab v NRMA Ltd [2014] NSWWCCPD 72 and Rose v Health Commission (NSW) [1986] 2 NSWCCR 2.
Both the applicant and the respondent relied on various evidence in support of their respective submissions in relation to whether the surgery is reasonably necessary as a result of the injury. I have carefully considered the evidence in the context of those submissions.

FINDINGS AND REASONS

Sub-section 60(1) of the 1987 Act relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(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).
...”

Is the proposed treatment medical or related treatment?

The applicant seeks compensation for expenses of and related to the surgery, being L3/4 and L4/5 right sided decompression recommended by Mr Yanni Sergides.
That is clearly “medical or related treatment (other than domestic assistance)” within the meaning of s 60(1)(a) of the 1987 Act.

Is the proposed treatment reasonably necessary?

In Diab v NRMA Ltd,[1] Roche DP, referring to the decision in Rose v Health Commission (NSW),[2] set out the test for determining if medical treatment is reasonably necessary as a result of a work injury:[3]
“The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC2; (1986) 2 NSWCCR 32 (Rose) where his Honour said, at
48A-C:
‘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 tis place in the usual medical armoury of treatments for the particular condition’.”
[1] [2014] NSWWCCPD 72.
[2] [1986] NSWCC2; (1986) 2 NSWCCR 32.
[3] [2014] NSWWCCPD 72, at [76].
Roche DP[4] also noted that the Commission has generally referred to and applied the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service:[5]
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[4] [2014] NSWWCCPD 72, at [78].
[5] [1997] NSWCC 1; 14 NSWCCR 233.
Roche DP stated:[6]
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably 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 ...”

[6] [2014] NSWWCCPD 72, at [86].

Roche DP found:[7]
[7] [2014] NSWWCCPD 72, at [88]-[89].
“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.”

Appropriateness

It is not in dispute that the applicant sustained the injury on 15 March 2022 in the course of his employment with the respondent.
The applicant denied that he sustained any previous accidents or back injuries prior to the injury. The applicant gave evidence that, prior to the injury, he had no difficulties undertaking heavy work duties on a full-time basis, normally working 38 hours per week, plus overtime, and 10 hours each day. I accept the applicant’s evidence in that regard because: there is no evidence of any pre-existing back injury or symptoms; and the applicant was working full-time in a manual role prior to the injury.
The applicant gave evidence that, since the injury, he has suffered various ongoing symptoms which include right sided lumbosacral pain, shooting pain in the right leg and foot, numbness in his legs, reduced function of the right leg and psychological symptoms. I accept the applicant’s evidence in that regard because: it is consistent with treating medical evidence which records that the applicant has consistently complained of such ongoing symptoms since the injury.
The applicant gave evidence that, as a result of the injury and symptoms, he can no longer perform or has ongoing difficulty in performing many day to day activities. I accept the applicant’s evidence in that regard because: it is consistent with the various Certificates of Capacity and the treating medical evidence which records the applicant’s functional limitations since the injury.
The applicant gave evidence that he is “considering having surgery” and sought approval for the surgery from the insurer. The respondent’s counsel submitted that the applicant’s evidence in this regard is equivocal and indicates a level of uncertainty and reservation about the surgery on the part of the respondent. I do not accept those submissions and I find that the applicant positively elects to undergo the surgery because: it is consistent with the evidence of the treating neurosurgeon, Mr Sergides, that after he explained to the applicant what the surgery would involve and the associated risks, the applicant was “keen to proceed”; and such an inference is consistent with the applicant progressing these proceedings in the Commission.
Turning to the medical evidence, I note that various investigations of the applicant’s lumbar spine have been undertaken.
A CT Lumbar Spine on 30 March 2022 showed multilevel degenerative spondylosis, with marked canal stenosis at L4/L5 and L5/S1 with potential impingement of the transiting L5 and S1 nerve roots and potential impingement of the right exiting L4 nerve root and bilateral L5 nerve roots.
An MRI Lumbar Spine on 13 July 2022 showed degenerative changes with compression of the right L3, right L4 and both L5 nerve roots, and spinal canal narrowing, most marked at L4/5.
A Bone Scan on 15 July 2022 showed markedly marked bilateral L4/5 facet joint and mild right L5/S1 facet joint uptake.
Diagnostic medial branch blocks on 1 December 2022 to bilateral L3 to S1 facet joints, were reported by Dr Nathan Taylor, pain management physician, to result in no change in the applicant’s pain and to indicate that the applicant’s pain was not coming from the facet joints, despite CT and MRI changes.
An MRI Lumbar Spine on 15 August 2024 showed transitional vertebra at the lumbosacral junction with lumbarisation of S1 and S1/2 intervertebral discs, stable lower lumbar spondylotic changes, a large posterocentral and left paracentral disc protrusion at L5/S1 similar to the prior study and moderate to severe spinal canal stenosis at L4/L5 and moderate canal encroachment at L5/S1.
In reports issued between 5 October 2022 and 23 September 2024, Dr Nathan Taylor, pain management physician, detailed the various investigations and treatment undertaken and reported that the applicant continued to struggle with ongoing right-sided lumbosacral pain, lost reflexes and increasing weakness in his right leg and that he also experienced psychological symptoms.
In December 2023, Dr Judith Clarke, consultant psychiatrist, diagnosed a Somatic Symptom Disorder with predominant pain, moderate, in partial remission, secondary to chronic back pain which the applicant experienced as a result of the injury.
22 March 2024, James Etter, psychologist of the Northern Pain Centre reported that the applicant continued to report chronic pain in the lumbosacral region.
On 15 August 2024, Dr Clarence Foo, injury management consultant, reported that the applicant was still symptomatic with lower back pain and somatic disorder.
On 18 November 2024, Mr Yanni Sergides, treating neurosurgeon, reported that, despite conservative treatment, the applicant has chronic and severe right-sided radicular symptoms, sciatica, predominantly in an L5 nerve root distribution. Mr Sergides reported that the MRI scan performed in August 2024 showed a Grade 1 spondylolisthesis at L4/5 with a fairly large disc prolapse, which had not changed significantly at all since the previous scan. Mr Sergides reported that he offered the applicant an L3/4 and L4/5 right-sided decompression, noting that the disc prolapses are at L4/5 but at L3/4 there is also severe lateral recess stenosis.
The various treating medical reports and records consistently record that, notwithstanding various conservative treatments since the injury, the applicant continued to experience ongoing symptoms of right sided lumbosacral pain, shooting pain in the right leg and foot, leg numbness, reduced function of the right leg and psychological symptoms.
Considering the applicant’s evidence and the treating medical evidence as a whole, I accept that since the injury, the applicant has experienced and continues to experience ongoing lumbar spine symptoms and related psychological symptoms.

Further, I accept that the treating neurosurgeon, Mr Sergides, is of the opinion that the applicant’s lumbar spine symptoms are consistent with pathology identified in the imaging and that the surgery would be appropriate to treat that injury.

Cost of the treatment

The surgical fee estimate of Mr Yanni Sergides, neurosurgeon, dated 18 November 2024, estimated a surgical fee of $8,285 for right L3/4 and L4/5 decompression, possibly with microdiscectomy to be performed by Mr Sergides. The respondent has not raised any issue regarding the quantum of that estimated surgical fee.
The surgical fee estimate of Mr Sergides also noted that additional fees and costs relevant to the surgery were surgical assistant and anaesthetist fees and hospital and additional costs. As noted by the respondent’s counsel, no estimate has been provided in relation to those additional fees and costs.

Availability of alternative treatment and its effectiveness

The applicant’s evidence and the treating medical evidence consistently show that various conservative treatments, including radiofrequency nerve ablation, physiotherapy, exercise physiology, hydrotherapy, psychological treatment have not provided the applicant with any enduring relief of his lumbar spine symptoms to date.
On 22 March 2024, John Silcock, independent physiotherapy consultant, that exercise physiology treatment and gymnasium membership provided to the applicant to treat the injury should conclude. Mr Silcock acknowledged that continuing to insist that the applicant required exercise physiology assistance beyond two years post-injury could inadvertently perpetuate an unhelpful reliance on a therapeutic relationship. Mr Silcock recommended that if the applicant cannot cope with his diagnosed somatic pain disorder without ongoing exercise physiology guidance that further diagnostic investigations be undertaken and alternative treatment explored.
I accept the evidence, which is not in dispute, that treatment with strong painkiller medication and with cortisone injections is not suitable for the applicant due so previous adverse reactions to those substances.
Considering the evidence as a whole, I am not satisfied that any alternative treatments to the surgery have been identified which are likely to provide the applicant with any enduring relief from the symptoms.

Actual or potential effectiveness of the treatment and acceptance by medical experts of the treatment

As stated above, the treating neurosurgeon, Mr Sergides, has expressed the opinion that the applicant’s lumbar spine symptoms are consistent with pathology identified in the imaging and that the surgery would be appropriate to treat that injury, whilst also acknowledging potential risks of the surgery. Mr Sergides explained that although the disc prolapses are at L4/5, because there is severe lateral recess stenosis also at L3/4, he would incorporate that into the decompression.
Dr Graeme Doig gave independent medical evidence in January 2022 which recorded the history of conservative treatment and reported continuing constant lower-back pain particularly on the right side, with restricted movement and radicular symptoms affecting the right leg. On examination, Dr Doig noted that the applicant remained tender to deep palpation at the right lumbo-sacral area and was also tender over the trochanteric bursa at the right hip. Dr Doig diagnosed a soft-tissue injury to the lumbo-sacral spine with an aggravation of pre-existing degenerative change, including radicular symptoms in the right leg and an absent ankle reflex. I note that there is no evidence of any relevant imaging being available to Dr Doig when he prepared his report.
Dr Anthony Smith gave independent medical evidence in March 2025 which did not support the opinion of Mr Sergides. Dr Smith considered the history. On examination, Dr Smith’s examination recorded the applicant’s spine and hip movement and noted that the applicant did not complain of any low back pain with examination of the hips. Dr Smith did not record any tenderness of the applicant’s lumbar spine nor any low back pain, or any other pain with examination of the applicant’s hips.
Dr Smith diagnosed lumbar degenerative disease and bilateral hip osteoarthritis. Dr Smith expressed the opinion that in the injury, the applicant could have sustained an exacerbation/aggravation to his pre-existing, possibly more severe than average, lumbar degenerative disease, stating that no post-traumatic lesion was seen in the CAT scan on
30 March 2022.
Dr Smith accepted that the injury was a substantial contributing factor to an aggravation of the applicant’s spinal degenerative disease, although he opined that the applicant had long since recovered from that aggravation and was now suffering from an inorganic reaction. Dr Smith opined that no treatment is required for the applicant’s lumbar degenerative disease and nor would any other treatment be beneficial, with the exception of psychological treatment. Dr Smith acknowledged that hydrotherapy is not a curative treatment although it may provide some symptomatic relief.
Dr Smith stated that the applicant does not have symptoms consistent with symptomatic spinal canal stenosis and, on that basis, opined that it was difficult to predict the outcome of the surgery but he anticipated that any decompression was unlikely to provide benefit.
Associate Professor Anthony Brown gave independent medical evidence in February and March 2025 which supports the opinion of Mr Sergides. Associate Professor Brown commented on the report of Dr Smith dated 7 March 2025. Associate Professor Brown considered the history of the injury, the various investigations and conservative treatments undertaken to date and acknowledged the applicant’s report of ongoing symptoms and limitations. On examination, Associate Professor Brown noted radiculopathy including some tenderness to the right side of the lumbar spine, radicular pain, weakness of right knee extension, equivocal right knee and ankle jerks and qualitative changes in skin sensation, which was not expected if the condition had resolved. Associate Professor Brown recorded that the applicant clinically has signs of chronic back pain with L4/5 radiculopathy, has been diagnosed as having had Pain Somatisation Disorder (which represents a complication of chronic pain) and that he also has indications of low self-efficacy and significant pain catastrophisation. Associate Professor Brown opined that the applicant’s condition was unlikely to improve and that there may be some deterioration over time.
Noting that there was no evidence of pathology nor symptoms prior to the injury, Associate Professor Brown concluded that the injury was the main contributing factor to the aggravation and exacerbation of the applicant’s back pain to the point of making it symptomatic and that also resulted in development of a somatisation syndrome.
Associate Professor Brown accepted that the surgery is a legitimate and appropriate treatment modality for the applicant’s clinical radiculopathy and that it “may” improve the applicant’s pain and lead to an improvement in function. However, Associate Professor Brown also clearly acknowledged that the surgery is a big undertaking and there were rare but significant potential risks, it was not certain to improve the applicant’s symptoms and functionality and it may make his condition worse. Associate Professor Brown acknowledged that the applicant’s decision to undergo the surgery must be a personal one and that refusing surgery would be “a logical and rational decision”.
Associate Professor Brown did not identify any other alternative treatments which were likely to be effective. Associate Professor Brown acknowledged that hydrotherapy helped to manage the applicant’s chronic pain and assist his somatoform disorder, however clearly stated that it was not a treatment for the applicant’s back pain and radiculopathy.
I note that as there is no imaging of the applicant’s lumbar spine prior to the injury, it is not possible to identify any differences in pathology prior to and following the injury. Clearly, there is no evidence that the applicant was symptomatic prior to the injury. There is only evidence that the applicant became symptomatic after the injury.
The medical evidence in this matter is not straightforward and is somewhat challenging to reconcile.
I note that Dr Smith based his opinion that the surgery is not reasonably necessary as a result of the injury on his view that the applicant does not have symptoms consistent with symptomatic spinal canal stenosis and, on that basis, opined that it was difficult to predict the outcome of the surgery but he anticipated that any decompression was unlikely to provide benefit.
However, the imaging shows spinal canal stenosis and disc prolapses at L4/5 and severe lateral recess stenosis also at L3/4.
Further, the findings on examination by both Mr Sergides and Associate Professor Brown were consistent with that clinical radiculopathy.
On the basis of my reasoning and findings set out above, I do not accept the respondent’s submission that the surgery could only treat the applicant’s somatic condition, whereby there is no proper orthopaedic basis for the surgery.
I prefer and accept the evidence of Mr Sergides and Associate Professor Brown because, considering the evidence as a whole, I am of the view that it provides a reasoned and sensible explanation which is consistent with the applicant’s evidence and the treating evidence and that it provides a logical and likely explanation for the applicant’s ongoing symptoms and restrictions. The applicant’s treating surgeon, Mr Sergides, has had the opportunity to closely examine the applicant and I accept that he is well placed to form a sensible opinion regarding the optimum treatment for the applicant’s lumbar spine condition. Further, I consider that the opinion of Mr Sergides and Associate Professor Brown is based on a sound understanding of the applicant’s ongoing symptoms and restrictions caused by the condition which is supported by treating medical evidence, and I accept.
Having considered the evidence in the context of the criteria referred to in Diab and Rose, I am satisfied that the surgery is reasonably necessary.

Does the need for the proposed treatment arise as a result of a work injury?

In Murphy v Allity Management Services Pty Ltd[8] Roche DP stated at [57] and [58]:
“… a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 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 Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716)”.
[8] [2015] NSWWCCPD 49 at [57].
In Watts, the High Court discussed the evidentiary onus where a defendant relies on evidence of some alternate cause of a plaintiff’s disability. In Lamont-Salter v Qube Ports Pty Ltd [2021] NSWPICPD 15 at [40] to [43], Snell DP considered Watts and observed that it and other decisions make it clear that the ultimate persuasive onus remains with the applicant.
As noted above, it is not in dispute that the applicant sustained the injury on 15 March 2022 in the course of his employment with the respondent.
Further, as noted above, I accept the applicant’s evidence that, prior to the injury, he had no difficulties undertaking heavy work duties on a full-time basis, normally working 38 hours per week, plus overtime, and 10 hours each day.
As noted above, I accept that the applicant has ongoing symptoms and restrictions resulting from the injury.
For the reasons stated above, I prefer and accept the evidence of Mr Sergides and Associate Professor Brown. Considering the evidence as a whole, I am of the view that their opinions provide a reasoned and sensible explanation which is consistent with the applicant’s evidence and the treating evidence. Further, I am of the view that it provides a logical and likely explanation for the applicant’s ongoing symptoms and restrictions caused by the condition which is supported by treating medical evidence, and I accept.
On the basis of my reasoning and findings set out above, I do not accept the opinion of Dr Smith that the applicant has fully recovered from the effects of the injury and that his current symptoms can be attributed only to a pre-existing degenerative condition and an inorganic condition.
Having regard to my findings in relation to the injury above, I am satisfied that the need for the surgery arises as a result of the injury.

SUMMARY

On that basis, the Commission finds:
(a) the surgery, being L3/4 and L4/5 right sided decompression recommended by Mr Yanni Sergides, is reasonably necessary as a result of the injury pursuant to
ss 59 and 60 of the 1987 Act.
The Commission orders:
(a) the respondent to pay the costs of and incidental to L3/4 and L4/5 right sided decompression recommended by Mr Yanni Sergides pursuant to s 60 of the 1987 Act.

[2025] NSWPIC 454

3 September 2025