Heydari v Leda Aluminium Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Heydari v Leda Aluminium Pty Ltd [2023] NSWPIC 576
APPLICANT:	Mahdi Heydari
RESPONDENT:	Leda Aluminium Pty Ltd
MEMBER:	Michael Wright
DATE OF DECISION:	1 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for proposed lumbar spine surgery; causation dispute; Kooragang Cement Pty Ltd v Bates, Mason v Demasi, Diab v NRMA Ltd, and Margaroff v Cordon Bleu Cookware Pty Ltd considered; Held – proposed surgery reasonably necessary as a result of injury.
DETERMINATIONS MADE:	The Commission determines: 1. Pursuant to s 4(a) of the Workers Compensation Act1987 (the 1987 Act), the applicant sustained injury to his lumbar spine, including at L4/5 and L5/S1, as a result of injury on 29 July 2020 in the course of his employment with the respondent. 2. Pursuant to s 60 of the 1987 Act, the surgery proposed by A/Prof Papantoniou, L4 - S1 instrumented fusion as a two-stage procedure, being an L5/ S1 instrumental fusion plus bilateral sacroiliac joint fusions and then a revision L4- S1 instrumented fusion, is reasonably necessary as a result of injury on 29 July 2020. 3. They respondent is to pay, pursuant to s 60 of the 1987 Act, for the cost of the proposed surgery referred to in [2] above, and incidental and related expenses of the proposed surgery.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute (ARD), Mahdi Heydari (the applicant) claims for the cost of surgery, being L5/S1 laminectomy, decompression, discectomy, neurolysis, posterior, posterolateral and instrumented fusions plus bilateral sacroiliac joint fusions; and also revision L4 -S 1 laminectomy, decompression, discectomy, neurolysis, posterior, posterolateral and instrumented fusions, as recommended by A/Prof Papantoniou, as a result of injury on 29 July 2020 in the course of his employment with Leda Aluminium Pty Ltd (the respondent).
In dispute notices dated 4 April 2022, 30 August 2022 and 19 May 2023pursuant to ss 78 and 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent disputed that A/Prof Papantoniou had addressed the issue of a pre-existing condition, reasonableness and the manufacturing of signs by the applicant.

PROCEDURE BEFORE THE PERSONAL INJURY 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 of the dispute.
At the conciliation/arbitration hearing of this matter on 20 September 2023 the applicant was represented by Mr Petrie of counsel, instructed by Ms David, solicitor, and the respondent by Mr Doak of counsel, instructed by Ms Tancred, solicitor.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) the ARD and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no oral evidence.

FINDINGS AND REASONS

Applicant’s statement

The applicant provided a statement dated 27 June 2023. He stated that he was born in Iran and migrated to Australia in 2012 as a refugee.
The applicant stated that on 29 July 2020 he was standing on top of scaffolding and when he tried to step onto a temporary plank it gave way and he fell about 2.5 to 3m to the level below, landing on a concrete floor with part of his body on the plank that fell with him. He said he was taken by ambulance to Westmead Hospital and he was discharged the same day. He stated that he suffered injuries to his right elbow, right arm, right shoulder, back including his thoracic spine, and a haematoma in his head.
The applicant stated that he did not have a general practitioner (GP) as he hardly ever saw a doctor. He consulted Dr Moussad, GP, who referred him to Dr Kuo, orthopaedic surgeon. He stated that Dr Kuo performed injections to his right elbow on 28 January 2021 and to his right shoulder on 8 February 2021, without benefit. Dr Kuo performed manipulation of the right elbow on 18 May 2021, and surgery to his left shoulder on 29 September 2021.
Dr Moussad also referred the applicant to A/Prof Papantoniou in relation to his ongoing lower back pain radiating into both his legs, as well as neck and thoracic pain.
The applicant stated that on 14 January 2021 he underwent an epidural injection in his back. He underwent a second epidural steroid injection on 11 March 2021. He said that he continued with his medication including Mobic, but neither the injections nor the medication were of benefit. He said that he continued to suffer “immense” pain in his back, radiating to into his legs. He said that in about June 2021, A/Prof Papantoniou arranged for further investigation, and he underwent an MRI of his back on 13 September 2021.
The applicant stated that he consulted A/Prof Papantoniou on October 2021, following the MRI. He said that A/Prof Papantoniou could not offer further non-operative treatment and he recommended surgery. The applicant stated that he wished to have the recommended operation as he had had no relief from all the treatments that he had undergone for his back. He stated that he wishes to proceed with surgery as he continues to suffer from debilitating pain in his back and legs, and without surgery he is continuing to suffer with no hope of getting better.
The applicant stated that in relation to medication, he had been taking Panadeine Forte and Mobic without any real benefit. He said that he is taking Cymbalta, Targin, Seroquel and Zoton, and he has ceased taking Mirtazapine, Lovan and Endep.

Westmead Hospital

Triage notes of the Westmead Hospital dated 29 July 2020 recorded a history of “2.5m through scaffolding at worke ste…injuires #rt elbow + rt wrist, c/o thoracic pain…GCS 15-GCS 9 due to analgesia – morphine + ketamine + fentayl + ondanz + midaz +methoxy”.

Imaging/scans/investigations

An MRI of the lumbar spine was reported by Dr Popuri on 14 October 2020 as finding at L4/5 a broad-based disc bulge and no significant canal or exit root compromise seen. Also found at L5/S1 by Dr Posturi was a minor broad-based posterior disc bulge with no canal or exit root compromise seen. It was concluded that it was most likely on the history that there was an anterior wedge compression fracture at T12.
In a report of L4/5 epidural injections and CT lumbo-sacral spine dated 14 January 2021,
Dr Kapoor noted bilateralL4/5 epidural injections were performed, and also concluded that the CT lumbo-sacral spine showed a congenitally narrowed canal and discopathy most marked at L4/5 with mild to moderate central canal stenosis and potential for neural irritation.
A multi positional MRI of the lumbo-sacral spine on 13 September 2021 was reported by
Dr Lee as finding at L4/5 very early disc desiccation but a broad based herniation, with annular fissure, mild canal stenosis and mild to moderate foraminal stenoses. It was also found at L5/S1 that there was a subtle central herniation without nerve root contact, there was no stenosis, but with dynamic manoeuvres an annular fissure became clearly apparent and there was no change to the herniation size. Dr Lee concluded there was an L4/5 broad herniation with stenoses, and a small L5/S1 herniation and annular fissure.

A/Prof Papantoniou

A/Prof Papantoniou, orthopaedic and spinal surgeon, and Clinical Associate Professor of Surgery, provided a number of reports.
In his report to Dr Moussad dated 16 December 2020, A/Prof Papantoniou noted a history of a fall at work on 29 July 2020 of about 2.5-3m and of complaints of lower back pain and of bilateral lower limb pain with associated numbness, and also neck pain. He noted relevant complaints of central and bilateral lower back pain around the L4/5 level, radiating into the bilateral anterior and anterolateral thigh with numbness which comes and goes.
A/Prof Papantoniou noted that the applicant had had quite a large amount of medication over the previous four and a half months, but none of these had provided any real benefit. He also noted that the applicant had had physiotherapy for his shoulder, elbow, lower back and neck which were all injured in the accident.
On examination, A/Prof Papantoniou noted tenderness in the bilateral L4-S1 paraspinal muscle region, forward flexion associated with lower back pain and lateral tilts were stiff and caused lower back pain.
On neurological examination, A/Prof Papantoniou noted decreased sensation in the right S1 distribution and positive bilateral sciatic nerve stretch test.
A/Prof Papantoniou noted the MRI lumbar spine dated 14 October 2020 demonstrated congenitally short pedicles and a narrow canal, an anterior wedge facture at T12 and at L5/S1 a posterior disc bulge and an annular tear. He also noted as L4/5 there was a larger posterior disc bulge which is impinging on the dura and the descending nerve roots and at L2/3 and L3/4 there are smaller disc bulges.
A/Prof Papantoniou was of the opinion that the applicant “has had a potentially life threatening accident falling 2 1/2- 3 metres which would be considered a trauma call in a large public hospital. He clearly has suffered multiple injuries but my particular area is the lumbar and cervical spine.” He stated that “within those areas, he clearly has disc pathology at L5/S1, L4/5...”
A/Prof Papantoniou stated that “given that Mr Heydari was pain free and undertaking his normal job prior to his injury and that these pains occurred immediately at the time of his injury I do believe they have been caused by the work accident.” He also stated that “from my point of view the two biggest sources of his pain are the disc bulges at L5/ Si and L4/5. At present, it is unclear which of these two is the source of most of his pain but it appears the L4/ 5 level may be the source of more pain than the L5/ S1.”
A/Prof Papantoniou believed that it was still worthwhile trying non-operative management. He stated that the initial treatment was non-operative and he arranged for the applicant to have an L4/5 epidural steroid injection, and if that did not work he would try the L5/S1 disc. He recommended continued appropriate analgesia under GP supervision and continued extensive physiotherapy for all the affected areas.
In a report dated 9 February 2021, A/Prof Papantoniou noted that the L4/5 epidural injection on 14 January 2021 had not helped at all. He stated that it was unclear why the pain became worse after the injection. A/Prof Papantoniou was of the opinion that “certainly, the pathology that has previously been identified on MRI is consistent with his lower back pain with radiation into both L5 and S1 distributions.” He arranged for the applicant to undergo an L5/S1 epidural steroid injection. He recommended that the applicant “continue an extensive, extended course a physiotherapy at least twice a week for his lumbar spine, cervical spine and all the other areas that have been affected.”
In a report dated 15 June 2021, A/Prof Papantoniou noted that the L5/S1 epidural steroid injection on 11 March 2021 was of no benefit. He noted continuing complaints “of ongoing central and bilateral lower back pain. The pain mostly radiates down into the buttocks, posterior thighs, calves and the soles of his feet. It is in effect, the bilateral S1 distribution.” He noted that the applicant “takes Mobic and multiple other medications but unfortunately these do not provide much benefit.”
He was of the opinion that “the obvious choices as the source of Mr Heydari's pain, being the L4/5 and L5/S1 discs, do not seem to have responded to the epidural steroid injections. I still believe it is one or both of these levels that is causing him pain.” A/Prof Papantoniou stated that “at present, I still believe it is worthwhile treating him non-operatively but he does need new investigations at this date.” He arranged for an upright dynamic MRI of the lumbar spine.
In a report dated 12 October 2021, A/Prof Papantoniou noted continuing complaint of “a central and bilateral lower back pain. He has radiation into both buttocks and a bilateral L5 radiculopathy which is the worst component and a bilateral S1 radiculopathy.” He noted medications had not been of much benefit, multiple steroid injections, and difficulty with physiotherapy due to COVID-19 lock downs.
A/Prof Papantoniou noted the upright dynamic MRI of the lumbar spine of
13 September 2021. He was of the opinion that it “demonstrates an L4/ 5 broadbased disc prolapse with an annular tear. There is a mild stenosis as well as a foraminal stenosis at this L4/5 level. At L5/S1 there is disc bulge with an annular tear.”
A/Prof Papantoniou was of the opinion that “it is fairly clear that Mr Heydari's is pain is coming from the L4/5 and L5/S1 levels. These lumbar disc injuries are directly related to his work accident.”
A/Prof Papantoniou stated that “I have explained that I believe he has reached the end of non-operative management. I believe his only option to try and improve his pain profile and his functional capacity is an L4/ 5 and L5/ S1 instrumented fusion including the bilateral sacroiliac joints.”
He recommended that the applicant has “a two a stage L4-S1 instrumented fusion with bilateral sacroiliac joint fusion. I believe he is best served with an L5/S1 fusion with bilateral sacroiliac joint fusions followed number of months later by a revision L4-S1 instrumented fusion.”
In a report dated 8 February 2022, A/Prof Papantoniou noted the applicant’s pain remined largely unchanged, with complaint of “a central and bilateral lower back pain around the L4/ 5 and L5/ S1 level radiating left and right at both those levels. He has a bilateral L5 and S1 radiculopathy mostly as pain.” He confirmed his recommendation for surgery, continued supervised medication and physiotherapy.
In a report to the applicant’s solicitors dated 25 March 2023, A/Prof Papantoniou provided a diagnosis that the applicant had “L4/ 5 broad-based disc bulging with an annular tear and associated mild canal stenosis and foraminal stenosis” and “at L5/S1 he has disc bulge and annular tear.”
A/Prof Papantoniou noted that prior to the fall the applicant had no history of any operations, injections or previous trauma to his lower back. He noted that the applicant had documented pathology on two separate MRIs in 2020 and 2021.
A/Prof Papantoniou stated that “there is no doubt that he suffered these injuries as a result of the fall.” He noted that the applicant had no prior pain or significant pathology. He stated that “the pathology has been identified on MRI and the clinical picture at present is evident. He therefore has demonstrated how much pain he is in with the current pathology.” He also stated that “had he had such pathology prior to his work injury it is extremely unlikely he would have been able to accomplish his normal duties as a window installer climbing three metres up scaffolding.” He then stated that “it is clear the L4/5 and L5/S1 disc pathology is a direct result of his work injury.”
He also stated that “the identified pathology will inevitably progress. He will have progressive pain and increasing narcotic analgesia requirements. Irrespective of any claim, he will require surgical intervention to stabilise these segments.” He noted that the applicant despite his multiple injuries was very keen to go back to work and that “in terms of his psychological position, he is extraordinarily keen to get back to work which gives him a positive frame of mind for recovery.”
A/Prof Papantoniou provided an extensive explanation for his recommendation for surgery, which I reproduce here:
“I have recommended Mr Heydari have a two stage L4-S1 instrumented fusion and SI joint fusion.
The L5/S1 fusion and SI joint fusions are performed together first and then the revision L4-S1 fusion is performed approximately six months or longer afterwards.
One of the biggest issues internationally, is a failure of fusion at L5/S1.
One of the other large issues is transfer of forces to the SI joint after a successful fusion at L5/ S1 and/or higher.
A successful fusion results in significantly degeneration of the SI joints, due to the extra forces, and the requirement for a formal, separate SI joint fusion at a later time.
The more levels that are fused successfully the more likely the SI joints will degenerate and the faster this will happen.
The morbidity and potential mortality associated with this separate SI joint fusion procedure is not insignificant.
To minimise the risk of requiring a revision L5/ S1 instrumented fusion for primary failure, which has high complication rate, I undertake the L5/S1 fusion and the SI joint fusions together before undertaking any higher level fusions.
This allows the L5/ S1 level to begin the fusion process before the extra forces of adding the L4/5 level fusion into the construct. Thereby increasing the chances of a successful L5/S1 fusion primarily.
It is these extra forces being transferred to L5/S1 which cause the primary failure of fusion and non-union at L5/S1.
By undertaking the SI joint fusion at the same time there are two benefits.
Firstly, the need for a subsequent separate SI joint fusion procedure is reduced.
Secondly by immobilising the joint below (SI joint) the L5/S1 joint is stabilised between the L4/5 and SI joint fusions thereby increasing the L5/S1's chances of solidly fusing.”
A/Prof Papantoniou provided a detailed commentary on the report of Dr Smith. He noted that Dr Smith appeared to have undertaken only “a very cursory examination” and there appeared to be “no detail about any neurological examination” and “he appears to have missed the right S1 decreased sensation as documented in my report of 16/12/2020.” He also noted that Dr Smith had different findings on straight leg raising (SLR) to himself on
16 December 2020, but A/Prof Papantoniou did “not undertake SLR as separate test due to the aberrant findings but do it by distraction as part of testing power.”
A/Prof Papantoniou observed that Dr Smith noted that he had not viewed any images of the applicant, while A/Prof Papantoniou noted that he had reviewed two MRIs of the applicant and had treated him for over two years.
A/Prof Papantoniou disagreed that the applicant had simply sustained soft tissue injuries as outlined by Dr Smith. A/Prof Papantoniou stated that “the serial MRIs clearly demonstrate disc pathology at L4/5 and L5/S1.”
He was of the opinion that “the mechanism of injury is completely consistent with such lumbar spine injuries. The clinical picture including the initial presentation and the ongoing clinical presentation are all consistent with the injury and the identified pathology on MRI.”
A/Prof Papantoniou noted that the applicant had been consistent in his presentation and expression of pain throughout two years of consultations. He stated that “nothing I have seen is out of ordinary in terms of the presentation or the expression of his pain. This expression matches the pathology identified”. A/Prof Papantoniou noted that the applicant had not behaved in an abnormal way compared to his “thousands of other spine patients” as a currently practicing spine surgeon.
A/Prof Papantoniou was of the opinion that it was the work injury, the major fall, that has resulted in the lumbar spine pathology.
A/Prof Papantoniou stated that “internationally, after having failed two years of non-operative management, it is accepted that the only chance of improvement is surgical intervention”. He further stated that the other option is “to simply put up with the pain, progressively becoming worse with increasing narcotic analgesia requirements which will become ineffective over time.”

Dr Smith

Dr Smith, orthopaedic surgeon, provided reports to the respondent dated 1 June 2022 and 18 July 2022.
In his report dated 1 June 2022, Dr Smith noted a history of the fall injury of 3m on
29 July 2020.
Dr Smith noted the report of A/Prof Papantoniou dated 12 October 2021 and an upright dynamic MRI examination on 13 September 2021, “demonstrating broad annular bulge at L4-5 and L5-S1” and “he recommends a spinal fusion at L4-5 and L5-S1 with segmental fixation”.
Dr Smith also noted an MRI of the “low back” on 14 October 2020. He stated that “this demonstrates a broad annular bulge at L4-5 with no neurological compromise. At L5-S1, there is a minor broad annular bulge with no neurological compromise. There is a minor anterior wedge and minor bone marrow oedema.”
On examination, Dr Smith noted the applicant “behaves in an elaborate fashion” and “he moaned and groaned with all of the examinations”. Dr Smith noted findings on examination in respect of both shoulders and the cervical spine. He noted a normal lumbar lordosis and the applicant could only reach to the lower thigh, with 5 degrees of extension and lateral flexion and rotation of the low back. He noted straight leg rising of 50 degrees bilaterally, limited by low back pain, but he “managed to set up to position equivalent to” 90 degrees straight leg raising “pushing himself up on his weak arms”.
Dr Smith noted no neurological deficit in either lower limb.
He noted two lumbar spine injections and a proposed spinal fusion.
Dr Smith was of the opinion that the applicant fell 2 or 3m on 29 July 2020 and sustained multiple injuries to both shoulders as well as the neck, back and right elbow. He noted he had not seen “the images”. He stated that the injuries “are consequent to a fall of 3 meters”.
Dr Smith stated that the applicant had pre-existing “narrowing of the spinal canal in his neck and his low back, consequent to congenitally short pedicles. No one could predict what would happen in the absence of the fall of 2 or 3 meters that occurs on 29 July 2020.”
Dr Smith was of the opinion that the applicant sustained soft tissue injury to his neck, lower back “and right elbow in both shoulders”.
Dr Smith observed that the applicant “is behaving in a somewhat histrionic fashion and is manufacturing physical signs. There is no organic illness that could produce the pattern of weakness that he exhibits.” Dr Smith explained this observation in terms of shoulder elevation and neck rotation, but not with respect to the lumbar spine.
Dr Smith stated that, in respect of other non-work related factors contributing to presentation and the impact on current injuries, “he does not allow a fair examination. It cannot be proved one way or another regarding his fitness for work.” Dr Smith further stated that “he is a great deal better than he makes out to use. It may be worthwhile to have an observation.”
In his report dated 18 July 2022, Dr Smith provided his comment as to the surgery proposed by A/Prof Papantoniou.
Dr Smith observed that the applicant “is manufacturing physical signs and is a great deal better than he makes out he is. He has had operations on both shoulders without any benefit.”
Dr Smith was of the opinion that “it is unreasonable to do a spinal fusion over two levels and fuse the SI joints at the same time. One should be able to distinguish between lumbar degenerative disease and SI joint disease before contemplating any operative treatment.” He continued “I am unable to predict what will happen after any such procedures are undertaken as he is manufacturing symptoms as well as physical signs.”

Dr Rastogi

Dr Rastogi, consultant psychiatrist, provided a report to Dr Moussad dated 28 April 2021.
Dr Rastogi noted a history of a fall at work with fracture to the right elbow, right shoulder injury and lumbar injury. Dr Rastogi noted the applicant continued to have pain on the right side with limited movement and restrictions.
Dr Rastogi diagnosed major depressive disorder with chronic pain. Dr Rastogi suggested a trial of Endep psychological referral and further sessions for medication management and adaptation.

Clinical notes

Attached to the Reply were a series of what appeared to be notes, which were referred to in the index to the Reply as “Clinical Notes – various dates”. There was no identification of the author or entity which generated these notes.
The first entry was marked as “Initial” and dated 4 March 2021. It recorded a history of work scaffolding doing windows and “he fell on his back…His sleep is poor and he has been having flashback memories of the incident…Client is very distressed…” Subsequent entries dated 11 and 18 March 2021 referred to flashback memories of the work incident or the incident.
Flashback memories were again noted on 25 March 2021 and 1 April 2021.
Flashback memories of the incident were recorded on 8 April 2021 and 15 April 2021, the latter date also noting severe back pain.
Severe back pain was also noted on 22 April 2021. Continuing psychological symptoms were again recorded on 29 April 2021 and 13 May 2021, without reference to any incident, but with reference to difficulty walking distances and loss of his old active self.
On 27 May 2021 there were reported continued symptoms of post-traumatic stress disorder and severe physical pain.
Severe pain was again noted on 10 June 2021 and 24 June 2021, as well as flashback memories of the work injury.
The entry dated 8 July 2021 noted the client is very depressed and “he has been having flashback memory of the MVA…He reported having severe pain in his shoulders and back…”
An entry dated 22 July 2021 noted “client reported to be struggling with his physical pain…”
An entry dated 5 August 2021 noted “client reported feeling extremely depressed and is unable to do daily tasks due to his pain. He reported…flashback memories…”
On 2 September 2021 it was noted “…reported having ongoing symptoms of PTSD including flashback memories of the accident…”
On 16 September 2021 it was noted that “client reported feeling depressed and having PTSD symptoms, with flashback memory of the MVA…”
Continuing psychological symptoms were noted on 30 September 2021
and 14 October 2021.
On 28 October 2021, it was noted “reported experiencing flashback memories of his accident. Reported to be struggling with his pain…” Continuing psychological symptoms were noted on 11 November 2021.
On 25 November 2021, it was recorded that:
“…reported feeling depressed and having PTSD symptoms, with flashback memory of the work incident, experiencing poor sleep only few hours and continues wakes up angry remembering how he has been suffering. He continues to report lack of motivation, flashback memories, social withdrawn, low appetite, poor concentrate and memory. Ct reported having outbreak of anger due to lack of sleep.”
An entry dated 9 December 2021 noted he was “experiencing flashback memories”. An entry dated 23 December 2021 noted psychological symptoms but not flashback memories.
On 11 January 2022, it was recorded that “…he is still in severe pain all the time. He still has poor sleep and flashback memories of work incident…” Entries dated 25 January 2022,
15 February 2022 and 28 February 2022 noted continuing psychological symptoms.
On 14 March 2022, it was noted that “client reported feeling extremely depressed and is unable to do daily tasks due to his pain. He has been having flashback memory of the MVA…”
On 28 March 2022, it was noted that “…reported feeling depressed and having symptoms of PTSD, with flashback memory of the MVA…”
On 28 April 2022, it was noted that “…reported flashback memories and still in severe pain…” There was no mention of flashback memories in the next entry of 12 May 2022.
On 26 May 2022, it was noted that “…reported feeling ongoing depression and having PTSD symptoms, with flashback memory of the MVA…” Flashback memories were noted without detail on 9 June 2022.
On 23 June 2022, it was noted that “…he has been having flashback memory of the MVA…” There was no mention of flashback memory in the entry dated 7 July 2022.
On 21 July 2022, it was recorded that “client stated that he continues to have flashback memories of the fall…always in pain…”
On 4 August 2022, it was noted that “…he is in severe pain all the time. Poor sleep, has flashback memories of accident…” There were descriptions of continuing psychological symptoms but not flashback memories in the following entries of 25 August 2022 and
8 September 2022.
On 22 September 2022, it was recorded that “…he has been having nightmares of the fall…” There was no mention of flashback memories or nightmares in the next note of
29 September 2022.
On 13 October 2022, it was noted that “…reported feeling depressed and having PTSD symptoms, with flashback memory of the accident…”
On 3 November 2022, it was recorded that “…Client continues to have flashback memories and relives the fall…is feeling depressed, poor sleep 2-3 hours, severe shoulders and back pain with pain all over his body…” The next entry of 18 November 2022 noted flashback memory without detail, and the final entry of 2 December 2022 reported ongoing pain and psychological symptoms, but not flashback memory or nightmares.

Reasons

The respondent submitted that there were three elements to its case. The proposed surgical procedures were not made out as being reasonably necessary with respect to the criticism levelled by Dr Smith and the rationale provided by A/Prof Papantoniou. The assumption made by A/Prof Papantoniou that the pathology was caused by the subject incident is not borne out in his assessment and in the pathology more broadly. The applicant’s presentation was also significant in this matter. The respondent finally submitted that the clinical notes, which it conceded did not describe the “MVA”, did on several occasions refer to the motor vehicle accident (MVA) and there was no explanation from the applicant in relation to this, such as by stating that there was no MVA and that the notes were in error in this regard.
I will deal with this last respondent submission first. As noted above, the author or entity which produced these notes has not been identified. There may have been more than one person who produced the notes. It is not known whether there are other documents produced by the same entity which may have explained the notes. I do not accept that these notes have probative value and I place no weight on them.
The applicant, while not making any concession, submitted that the notes may have been made by a psychologist, and if so, taken as a whole, the reference to an “MVA” was an error. I accept that submission. The notes contained an initial history of the fall at work, and there were later references to the work accident and the fall. There was no history taken of an MVA. There was no elaboration on what was meant by an MVA. There were 4 MVA entries from March to June 2022. Prior to that there were two entries in July and September 2021. All of these entries were interspersed with references to the fall or to the work accident. After the last MVA entry there were references to the accident and to the fall. In my view, the entries referring to an MVA were an error, as the reference to MVA was made without explanation, after a description of the fall at work and subsequent references to that accident, as well as later references to the fall and the work accident after the final reference to MVA.
It was therefore not necessary that the applicant provide a further statement. I do not accept the respondent’s submissions in this regard.
In respect of the reports and opinion of Dr Smith, he was of the opinion that it was unreasonable to do a spinal fusion over two levels and fuse the sacroiliac (SI) joints at the same time, as the surgeon should distinguish between lumbar degenerative disease and SI joint disease before considering operative treatment.
However, A/Prof Papantoniou proposed fusion of the SI joint because of the extra force applied by fusion of L5/S1, and higher, causing significant and faster degeneration of the SI joints, and the risk of a separate SI joint fusion at a later time, as well as minimising the risk of revision L5/S1 instrumented fusion for primary failure. That is, the proposed SI joint fusion was to deal with SI joint degeneration at a later date, as distinct from current SI joint degeneration, as well as to minimise the risk of failure of fusion at L5/S1. I accept the applicant’s submission that Dr Smith’s view was a misunderstanding of the proposed surgery. I do not accept the respondent’s submission in this regard. Dr Smith did not provide a reason for his view, which was not otherwise developed. I also do not accept the respondent’s submission that the view of Dr Smith was effectively suggesting that pathology of the SI joint should be examined. Dr Smith did not say so, nor did he give a reason or reasons to support his view. In my view, Dr Smith referred to current degeneration of the SI joint, whereas A/Prof Papantoniou discussed, among other matters, accelerated significant degeneration of the SI joint over time as a result of current fusion at L5/S1 and higher disc levels. I do not accept the opinion of Dr Smith in this regard.
The respondent submitted that the only reason given by A/Prof Papantoniou for the SI joint fusion was a bare assertion. It was submitted that he did not identify any medical study or other objective material in support of his view. I do not accept this submission. I have outlined his reasons above. In my view, this was sufficient explanation for his opinion.
Dr Smith did not challenge A/Prof Papantoniou on the basis of any studies or similar material. A/Prof Papantoniou was not challenged, appropriately in my view, on the basis of his expertise. In my view, A/Prof Papantoniou was able to provide an expert medical opinion with sufficient probative value on the basis of his extensive experience and expert knowledge. I accept his opinion.
The respondent made a number of submissions in relation to the opinion on pathology that was given by A/Prof Papantoniou. It was submitted that his opinion was based upon a history which did not support his reasoning, and a series of assertions in his report of 25 March 2023 conflating injury with pathology, resulting in an ergo propter hoc fallacy, ‘after this, because of this’.
In respect of the history recorded by A/Prof Papantoniou, his first report of
16 December 2020 noted no history of any operations or previous trauma to the areas identified, including the lower back. He also recorded in his opinion section that the applicant was pain free and undertaking his normal job prior to the injury, and that the pain occurred immediately after the injury. In my view this forms part of the history upon which he relied, and although it did not appear in the “history” section, his report should be viewed as a whole, without a rigid demarcation between sections on matters of history. Just as a reasoning process may be discerned from the whole of a report, so may a record of the history that was given. I accept that he recorded a history that the applicant was pain-free and undertaking his normal job prior to the injury and that the pain occurred immediately after the injury.
I do not agree that A/Prof Papantoniou conflated injury with pathology. In my view, considering his reports as a whole, particularly his reports dated 16 December 2020,
12 October 2021 and 25 March 2023, he specifically identified the pathology at L4/5 and L5/S1, and he identified the factors that in his view indicated that the subject fall had caused that pathology, being the history that he recorded above, which I have accepted. The respondent effectively invited me to consider that many members of the population have degenerative conditions in the lumbar spine and that the statement of injury and causation by A/Prof Papantoniou was a bare assertion. I do not accept this submission.
A/Prof Papantoniou gave his opinion, in my view, based upon the history that I have accepted, the pathology that he identified, and the reasons that he gave. I decline to speculate as to a segment of the population that may or may not have displayed degenerative lumbar spine conditions or pathology on MRI or other imaging.
[1] (1994) 35 NSWLR 452.
A/Prof Papantoniou provided his expert opinion, with reasoning, as to the pathology and causation. In my opinion, he provided an opinion which supports a common sense view of causation, as identified in the decision of Kooragang Cement Pty Ltd v Bates.[1]
It was suggested that A/Prof Papantoniou’s opinion as to S1 signs and symptoms was not founded on evidence, as the imaging evidence of the MRI scan reports of 14 October 2020 and 13 September 2021 stated there was no nerve root impingement, and Dr Smith had on review of those reports, not diagnosed S1 signs and symptoms. It was suggested that
A/Prof Papantoniou’s criticism of Dr Smith in this regard was not well founded, as Dr Smith had in fact reviewed these scans. I do not accept the respondent’s submissions. What
A/Prof Papantoniou did was to review both the scan reports and the scan images themselves, whereas Dr Smith noted that he had not reviewed the images, and he had noted the reports of the scans. A/Prof Papantoniou considered the scans, the reports and his findings on examination, and found L5 and S1 radiculopathy.
Further, A/Prof Papantoniou conducted two injections at L4/5 and L5/S1 to find that the source of the applicant’s pain was both disc pathologies. I was not taken to any discussion by Dr Smith of these results. Dr Smith provided the generalised description of “he has had multiple steroid injections”, but did not discuss the outcomes nor their clinical significance.
In my opinion, these injections formed part of a systematic and well considered course of clinical treatment and assessment by A/Prof Papantoniou, which did not form part of the reasoning process of Dr Smith. I do not accept the respondent’s submissions that the MRI investigations did not support any reason for the leg symptoms. In my view, the systematic process of clinical observation, diagnostic assessment and review of the relevant MRI images by A/Prof Papantoniou supported his acceptance of the leg symptoms reported by the applicant.
The respondent also pointed to the apparent discrepancy in the height of the fall that was recorded by A/Prof Papantoniou. It was submitted that the Westmead Hospital records did not support the height recorded by A/Prof Papantoniou in his report of 25 March 2023, was they mentioning those records of the applicant’s lumbar spine. It was submitted that this was another reason to doubt his opinion. I do not accept the submissions. In my view, these were triage records which were characterised by their brevity and by their context of dealing with the immediate symptoms of the applicant’s fall, which did not preclude lumbar symptoms. I apply the caution that was noted in Mason v Demasi.[2] As to the height of the fall, I note that A/Prof Papantoniou in his initial report recorded a fall of approximately 2.5 to 3m, although in his report of 25 March 2023 he noted that it was about 3m. In my view, this did not affect his reasoning, which did not vary in terms of causation from the time of initial assessment. Further, I was not taken to any expert medical opinion which viewed this difference in height from 2.5 to 3m as being significant.
[2] [2009] NSWCA 227.
As to the applicant’s presentation to Dr Smith and to A/Prof Papantoniou, I note that the source of the respondent’s submissions was the opinion and reports of Dr Smith, with some reference to the report of Dr Rastogi.
Dr Smith specifically identify the manufacturing of physical signs in respect of shoulder elevation and neck rotation. He did not identify any specific issues with respect to the lumbar spine in his discussion of the manufacturing of physical signs. In my view, Dr Smith did not explain his reasons for giving his opinion that the applicant was manufacturing physical signs in respect of his lumbar spine. It might be implied from the opinion Dr Smith’s opinion that the applicant was manufacturing physical signs and respected his lumbar spine could be taken from his general statement that the applicant was behaving in a “somewhat histrionic fashion and his manufacturing physical signs” and later assertions in that regard. However, as I have noted, his discussion of the manufacturing of physical sigs was specific and with reference to shoulder elevation and neck rotation. Even if it were to be the case that there was a basis in his reasoning process for his view that the applicant was manufacturing physical signs in respect of the lumbar spine, by reference to Dr Smith’s descriptions of “somewhat histrionic” behaviour and the applicant being very “anxious” and behaving in an “elaborate fashion”, not “allow[ing] a fair examination” and that he “is a great deal better than he makes out”, Dr Smith did not identify the specific lumbar spine findings that were relevant in this regard. He noted findings in respect of straight leg raising but made no comment in respect of the manufacturer of physical signs in respect of the lumbar spine. Indeed, his findings of inconsistency were specifically noted in respect of the neck and shoulder movement on examination.

Part of the basis of the opinion of Dr Smith in his supplementary report of 18 July 2022 in respect of his comments on the proposed surgery was that the applicant was manufacturing physical signs and he was a great deal better than he was making out. As noted above,
Dr Smith did not identify the physical signs that the applicant was said to be manufacturing in respect of his lumbar spine.
On the other hand, A/Prof Papantoniou was of the view that the applicant’s complaints of pain and his behaviour were in keeping and consistent with his diagnosed pathology and injury. He was also at the view that the applicant’s complaints of pain and behaviour were not inconsistent with the many patients that A/Prof Papantoniou had treated for lumbar spinal conditions. I accept the view of A/Prof Papantoniou in respect to the applicant’s presentation. In my view, the opinion of A/Prof Papantoniou as an expert and experienced spinal surgeon, together with the reasons that he gave, are persuasive. I accept the opinion of
A/Prof Papantoniou in this regard. For the reasons noted above, I do not accept the opinion of Dr Smith in this regard.
In respect of the report of Dr Rastogi, I note that there was no evidence before me as to how any diagnosed psychological condition might count for the applicant’s presentation to
A/Prof Papantoniou and to Dr Smith. Dr Rastogi, in my view, provided an opinion as to the applicant’s psychological condition at that particular point in time in April 2021. Dr Rastogi did not provide an opinion as to how the applicant’s psychological condition at that time may have affected his presentation in terms of lumbar spinal complaints, such as in December 2020 at the time of the applicant’s initial presentation to A/Prof Papantoniou, and at times after April 2021.
The only suggestion on the evidence is the report of Dr Smith which simply referred to the applicant being "anxious", and behaving in an “elaborate fashion” and a “somewhat histrionic fashion”. There was no other reference by Dr Smith to what might be construed is the applicant’s psychological state and, in my view, he moved his opinion away from these descriptors to the applicant manufacturing signs. I have not accepted the opinion of Dr Smith in respect of the applicant’s presentation. I do not accept the respondent’s submissions that the opinion of A/Prof Papantoniou in respect of the applicant’s presentation did not consider the applicant’s psychological state in terms of the symptoms that he presented. In my view, A/Prof Papantoniou was entitled to assess the applicant as he found him on the basis of his expert opinion and experience, and he provided reasons for doing so.
As noted above, I accept the opinion and reports of A/Prof Papantoniou. I do not accept the opinion and reports of Dr Smith. Adopting a common sense view of causation, I find that the applicant sustained injury, pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act) to the lumbar spine, including at L4/5 and L5/S1, as a result of injury on
29 July 2020.
The respondent also suggested that in applying the principles arising from decisions including Pelama Pty Ltd v Blake,[3] Rose v Health Commission (NSW)[4] and Diab v NRMA Ltd, [5] the applicant’s presentation goes to the criteria to be considered, and also it is necessary to consider that A/Prof Papantoniou has not considered the possibility of pre-existing pathology. Pre-existing pathology was a point raised by Dr Smith, which I have discussed above and I have not accepted. I have also not accepted the respondent’s submissions as to the applicant’s presentation.
[3] [1988] NSWCC 6; (1988) 4 NSWCCR 264.
[4] (1986) 2 NSWCCR 32.
[5] [2014] NSWWCCPD 72.
In respect of the decisions referred to by the respondent, although the matters noted are “useful heads for consideration”,[6] it is important to note from the reports of
A/Prof Papantoniou that the applicant has exhausted conservative management and it is the opinion of A/Prof Papantoniou, an expert and experienced spinal surgeon, that the proposed surgery is necessary and effective in treating the applicant’s lumbar spine pathology. The “essential question remains whether the treatment was reasonably necessary”.[7]
[6] Margaroff v Cordon Bleu Cookware Pty Ltd (1997) 15 NSWCCR 204 at 208C (Margaroff).
[7] Margaroff, [208].
A/Prof Papantoniou was on the opinion that the only chance of improvement is the proposed surgical intervention. In my opinion, the surgery proposed by A/Prof Papantoniou is reasonably necessary as result of the injury on 29 July 2020.
I find that the surgery proposed by A/Prof Papantoniou is reasonably necessary as result of the injury on 29 July 2020, pursuant to s 60 of the 1987 Act.

[2023] NSWPIC 576

1 November 2023