Howarth v Hi Spec Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Howarth v Hi Spec Pty Limited [2022] NSWPIC 305
APPLICANT:	Stuart Howarth
RESPONDENT:	Hi Spec Pty Limited
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	17 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Accepted injury to lumbar spine; claim for cost of L4/5, L5/S1 anterior interbody fusion (stage 1) and L4/S1 decompression and fusion (stage 2); respondent disputed that surgery is reasonably necessary; consideration of Diab v NRMA Ltd; Held– respondent to pay pursuant to section 60(5) of Workers Compensation Act 1987 cost of L4/5, L5/S1 anterior interbody fusion (stage 1) and L4/S1 decompression and fusion (stage 2).
DETERMINATIONS MADE:	That the respondent is to pay, pursuant to section 60(5) of the Workers Compensation Act 1987, the cost of L4/5, L5/S1 anterior lumbar interbody fusion (stage 1); and L4/S1 decompression and fusion (stage 2), as proposed by Dr Bhisham Singh, and associated costs.

STATEMENT OF REASONS

BACKGROUND

The applicant, Stuart Howarth, was employed by the respondent, Hi Spec Pty Limited (Hi Spec) as a labourer.
Mr Howarth sustained an accepted injury to his lumbar spine on 17 February 2020, when he slipped while working on an elevated platform.
Dr Bhisham Singh, orthopaedic surgeon, has recommended that the applicant undergo L4/5, L5/S1 anterior lumbar interbody fusion (stage 1); and L4/S1 decompression and fusion (stage 2) surgery.
On 5 August 2021, the respondent’s workers compensation insurer, iCare Workers Insurance (iCare) issued the applicant with a dispute notice, pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It disputed liability for L4/S1 spinal fusion and decompression, as it was not reasonably necessary as a result of an injury, as required by section 60 of the Workers Compensation Act 1987 (the 1987 Act).
ICare issued a further dispute notice dated 12 October 2021. It disputed liability for L4/L5, L5/S1 anterior lumbar interbody fusion and L4/S1 decompression and fusion surgeries, as they were not reasonably necessary as a result of an injury, as required by section 60 of the 1987 Act.
By letter dated 19 January 2022, the applicant’s solicitors requested a review of the decision to dispute liability.
On 2 February 2022, iCare advised that it had reviewed its decision, which was maintained.
The applicant lodged an Application to Resolve a Dispute (the Application) on 8 March 2022. He claimed that on 17 February 2020, he sustained an injury to his lumbar spine.
The applicant claimed the sum of $14,148, being the cost of spinal fusion and ancillary treatment, as well as rehabilitation following discharge from hospital.
The respondent lodged its Reply on 30 March 2022.

ISSUES FOR DETERMINATION

The issue to be determined is whether the proposed surgery is reasonably necessary as a result of the injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The matter was listed for conciliation/arbitration hearing by telephone on 24 May 2022.
Ms Compton of counsel, instructed by Ms Bond, appeared for the applicant; and
Mr Gaitanis of counsel, instructed by Mr Richards, appeared for the respondent. The applicant was present. Mr Lacsina from EML also attended.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application and attachments;
(b)    Reply and attachments, and
(c)    Application to Admit Late Documents dated 17 May 2022 and attachments, filed by the respondent.

Oral evidence

There was no application to cross-examine or call oral evidence from any witness.

FINDINGS AND REASONS

Evidence of the applicant, Stuart Howarth

Mr Howarth’s statement is dated 22 February 2022.
On 17 February 2020, the applicant was working on an elevated platform, using an extension cleaning pole. There was a bucket of soapy water on the platform. The pole slipped out of his hand, and as he grabbed it, he slipped backwards. It hurt to breathe, and the right side of his muscles, between the rib and hip, had locked.
The applicant consulted a physiotherapist, who thought he had injured a facet joint. She advised him to rest and have a couple of weeks off work. He attempted to continue working after the injury, but ceased work in about October 2020, and has not been able to return.
Mr Howarth had attended several general practitioners (GPs) after the accident but felt they initially did not support him or his injury. One was adamant that there were no issues with his back, even though he had an MRI. He thought it was a gastrointestinal issue and sent the applicant “for blood tests and so on”. He recommended that the applicant see a gastroenterologist, but Mr Howarth refused, as it was a back injury.
The applicant was finally referred to Dr Singh in about December 2020, and first saw him in February 2021. Dr Singh said the problem was that the L5 disc was putting pressure on the S1 nerve root. The applicant had two bad discs in his back. One was putting pressure on the right side, and the other was on the left, resulting in left and right leg pain.
The applicant had two MRI scans of his lumbar spine, on 8 October 2020 and 6 October 2021. The suggestion that he had a facet joint issue at T7/8 was ruled out by CT scan. EML paid for his treatment, except for tests relating to gastrointestinal issues.
Dr Singh referred the applicant for an epidural and arranged a bone scan to check there was no arthritis. After the epidural, Dr Singh advised that surgery was the only way to fix the problem with his back.
The applicant listed his current medication, which included Inza; Gabapentin; Oxycontin; Norflex; and Fluroex. He had started to feel more depressed about his back and situation after reading Dr Casikar’s report, when the insurer denied his surgery. His doctor then started him on Fluroex. His GP had just prescribed omeprazole for his gastrointestinal issues. He also sees a psychologist.
Mr Howarth was trying to reduce the Oxycontin due to the gastrointestinal issues it causes. He feels his stomach is “horrible because of the medication”. He gets “very blocked up”. His GP was considering adjusting his medication by increasing the Gabapentin and Norflex, so he could reduce the Oxycontin.
When the applicant wakes, his pain is about 5-6/10, sometimes worse, even when he is taking all the medication. It can take until lunchtime to be able to do anything. If he does “something silly”, like turning suddenly or pushing his dog, he can hurt his back. He has three Jack Russell dogs and must be careful how he handles them and their food, or he aggravates his injury. He cannot pick them up or walk them.
The applicant previously had physio twice a week, but there was not enough time to work on his legs and back. He has it once a week for half an hour, plus a one-hour massage. He does not think he would cope if he did not do this. EML pays for it. His physiotherapist has given him some exercises and stretches, and he tries to do them as well as he can. He uses a band and a large exercise ball, but still struggles.
The applicant has constant pain in his back and into his legs. It radiates to the right leg in the hamstring region and in the left leg [to] the front of the hip. He is unable to bend down comfortably. He needs to use the kitchen table for support when trying to lift even light things, like the dog bowls, from the ground. He finds it very frustrating that he struggles with even basic tasks.
Mr Howarth does not leave his house very often. Before the accident, he was a member of the local 4WD club and fished most weekends. He could work all day and drive for hours, and never had a problem. He has quit the 4WD club and fishing. He can drive only
45-50 minutes before he needs to get out and stretch. He hardly visits his family, as they live out of town. He could not get home after visiting, so family members must drive him. It is too much trouble to visit, so he does not see them much now.
The applicant can only walk a few blocks, maybe five to 10 minutes without pain. It is worse if there is an incline. He used to walk his dogs every day, but now cannot walk them. He must pay someone to cut their nails, as he cannot walk them as much as they need.
The applicant’s quality of life is “very ordinary”. He sometimes has three showers to warm up, so his back does not hurt as much. He has a TENS machine, given to him by the physiotherapist, which he uses most days, as it gives him some relief.
The applicant is uncomfortable sitting in most chairs for lengthy periods. During the day he generally just watches TV downstairs. He must take care not to sit for more than 40 to 50 minutes and sets an alarm to remind him to move. EML has provided him with a special chair, which has helped a little. He has also been provided with a bed stick and shower chair. His housemate does most of the cooking/housework. EML pays for lawn mowing, as he cannot do it.
Mr Howarth does not eat breakfast, as he has no appetite, and generally will not eat until lunchtime. He has always been skinny, previously weighing about 65kg. He is currently about 55kg, at 182cm tall. His medication makes him drowsy, and he needs to take naps. He knows it is affecting his short-term memory. If he goes to the kitchen, he cannot remember what he went there for.
The applicant does not wish to proceed with any more nerve blocks, as recommended by Dr Casikar. He understands it will not assist and can cause more damage. They would only be temporary, he would need them on the left and right side, and it would be ongoing. He does not want to keep getting nerve bocks if there is a surgery, although very significant, that could elevate [sic: eradicate?] his symptoms permanently.
Everyone seems to be concentrating on the applicant’s right leg, but he still gets left leg pain. He is unable to work. He would return to work if he could but cannot now. He does not know how he can continue taking the level of medication he is currently taking and does not want to continue. However, even with medication he is in pain. He does not want to continue like this.
The non-surgical treatment the applicant has had has not been successful. He keeps trying but nothing is helping. The physiotherapist says there is nothing else they can do to make him better, except give him some temporary relief and help manage the pain.
Dr Singh has recommended a two-level fusion surgery to the applicant’s lower lumbar spine. He understands this will be an anterior surgery to the L4/5 and L5/S1 levels. It has been thoroughly explained by Dr Singh. He understands there are risks involved. He hopes he will be able to get back to some light work, even if just part time. He just wants to wake up with a reduction in his pain, so he does not have to take so much medication every day.
The applicant understands from Dr Machart that he has a 50% chance of a completely successful spinal fusion. He is happy with that risk. He understands it is a big surgery with no guarantees and he will need to continue with rehabilitation for a considerable time. He is happy to do this. When he balances his current problems, and his life as it currently is, he is prepared to undertake those risks, as he has no quality of life.
The applicant last saw Dr Singh before Christmas (2021) and Dr Singh still wanted to go ahead with the surgery. Mr Howarth does not want the nerve blocks. He does not know what else he can do. He wishes to proceed with the surgery.

Medical evidence

Dr Bhisham Singh – orthopaedic surgeon

Dr Singh reported to the applicant’s GP, Dr Shandith Tennakoon, on 9 May 2021.
Dr Singh recorded that the applicant had disc bulging in the lumbar spine from L4 to S1. He had persistent lower back and leg symptoms that were not responding to conservative treatment. An injection of the lumbar spine gave him some transcend [sic: transient] relief during the anaesthetic phase but his pain had returned.
With failure of conservative treatment, the applicant may consider his surgical option. They had discussed the pros and cons of surgical and non-surgical treatment, surgical techniques, and the risks and benefits of same.
The applicant understood the risks and was keen to proceed with surgery, as he was unable to manage his day-to-day activities with ongoing symptoms of lower back and leg pain. They had discussed staged L4 to S1 decompression and stabilisation with the insertion of a prosthesis. Dr Singh had provided surgical education for this process. He would seek approval.
On 21 May 2021, Dr Singh responded to questions from EML.
Dr Singh diagnosed L4/5 and L5/S1 disc bulging. The alternative treatment that could be offered was chronic pain management.
The applicant had been downgraded from full time hours with suitable duties to having no capacity for work since 26 February 2021, due to “evolution of disc injury”. His timeframe for a return to suitable duties (assumed to be post-surgery) was 12 to 16 weeks. The timeframe for a return to pre-injury duties would depend on his response to rehabilitation.
On 17 June 2021, Dr Singh responded to further questions from EML.
Dr Singh opined that staged anterior and posterior fusion would maximise the success of the operation and help the applicant return to the workforce. The applicant had symptoms of disc dysfunction from L4/S1.
The applicant had trialled and failed conservative treatment. His surgical option was L4/S1 decompression and fusion, which could be done by posterior only approach. A staged anterior plus posterior surgery had better short-term, medium-term, and long-term outcomes.
The applicant’s prognosis, if he undertook surgery, was for improvement of pain and function. He had undergone an appropriate amount of conservative treatment.
Dr Singh opined that it was unlikely that surgery would have been required had the applicant not sustained an injury or aggravation at work. His proposed recovery timeframe for suitable duties was 16-20 weeks and pre-injury duties from 20-24 weeks. He would require seven to 10 days of inpatient rehabilitation, followed by two to four months of outpatient rehabilitation.
Dr Singh reported to the applicant’s solicitors on 17 December 2021. He has responded to questions that are unfortunately not in evidence. However, his report is readily understood.
Dr Singh recorded that the applicant had discogenic lower back pain from disc injury at L4/5 and L5/S1. His injury was nearly two years ago, and he had been having increasing pain, which had not responded to pain medication, exercises, and injections.
The applicant was taking large doses of pain medication. Dr Singh was concerned regarding the amount of Oxycontin and other opioid he had been taking for more than 18 months. Further conservative treatment was likely to increase his dependence on that medication and unlikely to improve his function and pain. He had clearly failed treatment so far.
A previous epidural injection had improved the applicant’s leg pain for a short period, but his pain returned. A further injection was unlikely to give him sustained benefit. L5/S1 discectomy may improve his leg pain, but would not improve his axial back pain, which was discogenic. He reported his leg pain as 3/10 and back pain as 7/10. While a less invasive procedure was to be hoped for, it was unlikely to improve the pain in his lower back.
Dr Singh opined that the applicant had failed conservative treatment. Surgery was reasonably necessary. It was the appropriate treatment in a patient with disc herniation and discogenic back pain that was not responding to other measures. The aim of surgery was to decompress the nerve root and stabilise the injured motion segments.
The independent medical examiner had suggested the applicant undergo decompression surgery. Dr Singh did not believe he would be able to return to his employment following a microdiscectomy procedure, because he may continue to have discogenic lower back pain. Stabilisation of the lumbar spine from L4 to S1 was his best chance of being able to return to work. Decompression and fusion would stabilise the motion segment and improve his pain. The alternative would be to trial chronic pain management and accept permanent functional impairment.

Dr Vidyasagar Casikar - neurosurgeon

Dr Casikar was qualified by the respondent and reported on 6 September 2021, having conducted a Telehealth assessment.
Dr Casikar recorded a consistent history of the injury and the applicant having consulted a physiotherapist, who indicated he had a damaged facet joint. The physiotherapist sent a report to his family physician, whose name the applicant could not remember. On the advice of this physician, he took codeine and continued physiotherapy. He got slightly better and tried to get back to work. Within two weeks, he developed severe pain in the ribs and right hip.
The applicant tried plastering, but developed severe back pain, with spasm of his “right butt cheek”. His employer said there were no more suitable jobs for him.
Between June and July 2020, the applicant woke with severe lower back pain. He consulted Dr Glen Haywood, who advised him to have a CT scan and morphine. He was then advised that he had a disc prolapse measuring 14 x 5mm on the right, compressing the right S1 nerve root.
The applicant then consulted Dr Tennakoon, by which time he was complaining of pain in the right groin and right lumbar region. Dr Tennakoon arranged for a gastroscopy and blood tests. He did not think that pain in the groin and right inguinal region was due to back pain. The tests were normal. The applicant was not very happy and requested the insurers to send him to a spine specialist.
The applicant then consulted Dr Singh. Following MRI, Dr Singh suggested an epidural injection. This stopped the pins and needles in the foot. Dr Singh indicated the applicant had disc prolapse at L5/S1 and disc degeneration at L4/5. He had suggested a two-stage procedure. He wanted to do an anterior interbody fusion at L4/5 and L5/S1, and a couple of days later, a posterior fusion with pedicle screw fixation.
Dr Singh had opined that, following the surgery and a brief period of rehabilitation, the applicant would be able to get back to his pre-injury duties.
The applicant was taking Lyrica when he was not driving, and Naproxen and codeine.
Dr Casikar noted that the applicant had a housemate. He did not do any ADL (activities of daily living), which were performed by his housemate. He drove to doctors and physiotherapists. WorkCover had provided a person to mow the lawns. The insurer had provided a special shower chair and bed raising equipment.
On examination, Dr Casikar recorded that the applicant’s gait was very antalgic. He was holding his hand over the right paraspinal and hip area. He was unable to walk on heels and toes. He could flex his back up to 20 degrees. Lateral flexion was possible through 5 degrees on either side. He had no way to lie down to test SLR (straight leg raising). In the sitting posture, Dr Casikar believed SLR was reduced to 10 degrees on the right and 20 degrees on the left. Self-examination of the lower limbs did not indicate any dermatomal hypoesthesia.
Dr Casikar referred to MRI of the thoracic and lumbar spine dated 8 November 2020. It showed mild degenerative changes. The radiologist reported there was a disc protrusion at L5/S1 segment on the right side, compressing the S1 nerve root. An X-ray of the lumbar spine on 11 February 2021 was normal.
Dr Casikar opined that the applicant appeared to have produced a discogenic injury following the incident on 17 February 2020. The description of the injury and subsequent symptoms in the right leg are consistent. Following the epidural injection, the sciatic symptoms seem to have recovered. The applicant still had significant lower back pain.

Dr Casikar believed that perhaps an S1 nerve block should be tried on the right side to see if the applicant had a better response. The back pain was due to the degenerative disease of the lumbar spine. However, the radiologist reported that the degenerative changes were very minimal. Dr Casikar was surprised that such minimal degenerative disease could produce such severe persistent lower back pain that does not seem to have got better since February 2020.
Dr Singh wanted to do a 360 degree fusion. Dr Casikar was a little surprised that such an extensive fusion was required when a simple L5/S1 right-sided discectomy and release of the pressure on the S1 nerve root would be adequate. Considering that the previous epidural injection had relieved the applicant’s sciatic pain and his sciatic symptoms were not very severe now, they could try another cortisone injection or S1 nerve block followed by a microdiscectomy if symptoms were no better.
Dr Casikar was concerned that the spinal fusion was rather extensive. The outcome was likely to be poor. It was unlikely that Mr Howarth would get back to his pre-injury duties. He was not used to labouring. He was a chef for 10 years. Vocational redirection may be necessary.
Dr Casikar opined that the applicant had undergone appropriate conservative treatment. Further conservative treatment could be tried.
The applicant was not fit for work because he had back pain and right sciatic symptoms. At that stage, the possibility of him getting back to any kind of employment was very slim, as he still had severe back pain and right sciatic symptoms. His diagnosis was L5/S1 disc prolapse, consistent with the description of injury. Dr Casikar did not believe the diagnosis of T7/8 facet joint irritation was sustainable. There was no evidence to prove it.
Dr Casikar was very concerned that the applicant’s symptoms of back pain seemed to be out of proportion to the extent of the degenerative disease and the small disc prolapse at L5/S1. Under normal circumstances, considering that his neurological symptoms resolved following the epidural injection, it is possible that the disc protrusion has in fact shrunk. This needed to be verified by another MRI. The applicant also required evaluation by a rehabilitation provider and a more persistent rehabilitation procedure.
Dr Casikar apportioned pre-existing degenerative disease and the work related injury 50/50. This was a “very arbitrary estimate”.
Dr Casikar was surprised the applicant’s conservative treatment had been prolonged. It had not been ineffective. The epidural injection had relieved his sciatic symptoms. The applicant still complained of back pain that, in Dr Casikar’s opinion, seemed out of proportion to the extent of the injury.
Dr Casikar found it very difficult to support Dr Singh’s request for a 360 degree fusion when the main pathology was an L5/S1 disc prolapse. He therefore found it difficult to indicate the extensive spinal fusion was necessary for the work-related condition.
The surgery theoretically had the capacity to relieve the effects of degenerative disease. As far as the effects of the injury are concerned, Dr Casikar opined that the only verifiable injury is L5/S1 disc prolapse. If the applicant’s sciatic symptoms did not get better with another cortisone injection and repeat MRI showed the disc prolapse had progressed, the applicant would require a microdiscectomy. If the neurological symptoms had recovered and a repeat MRI showed the disc prolapse had regressed, he would not require any surgery.
Dr Casikar opined that the outcome of spinal fusion in the workers’ compensation scenario is likely to be extremely poor.

Dr Frank Machart – orthopaedic surgeon

Dr Machart was qualified by the applicant and reported on 14 January 2022.
Dr Machart recorded a consistent history of the injury. He noted that the applicant had had physiotherapy and an epidural injection, which relieved some of the pins and needles in his feet. He had tried to return to work. His last job was plastering until September 2020. The pain increased and he had not worked since.
Conservative treatment failed to achieve sufficient benefit. The applicant was referred to Dr Singh, who was planning front and back fusion, two days apart. He was prepared to go through with the operation.
The applicant’s symptoms were constant severe lower back pain, requiring regular use of prescription analgesics. He was unable to bend down comfortably or do anything physical. Pain radiated to the right leg hamstring region, and to the left leg at the front of the hip. There were no neurological symptoms.
Dr Machart recorded the applicant’s treatment as Gabapentin and Oxycodone.
The examination was limited by Zoom. Dr Machart recorded spasm and muscle guarding on examination of the lumbar spine. There was minimal flexion and extension. Straight leg raising was on the right positive at 30 degrees and on the left at 60 degrees. Sensory loss in the lower limbs was not evident. Pain mapped out over the lower lumbar spine. There were no X-rays available.
Dr Machart referred to a report of MRI of the lumbar spine dated 6 October 2021. It showed a healing L5/S1 disc extrusion, disc pathology at L4/5 and L5/S1, dehydration and protrusions. MRI of the thoracic and lumbar spines dated 8 October 2020 showed no thoracic lesion and two-level disc pathology at L4/5 and L5/S1.
Dr Machart diagnosed injury to the lower lumbar spine, with pathology at the lowest two discs. Conservative treatment failed to sufficiently relieve the symptoms. The applicant was on prescription analgesics, “which is not a good thing”.
Dr Machart opined that the treatment proposed by Dr Singh is a recognised way of treating the applicant’s pathology. There are alternatives, such as no surgery, surgery from the front, surgery from the back, or from both, “surgeons’ preference”. The treatment is recognised as one of the tools in treating the pathology sustained by Mr Howarth.
Dr Machart had no reason not to support the technical aspects of the proposed surgery. He supported the view that if a level needs to be fused, then two levels need to be fused, because the adjacent level is not disease free.
Dr Machart was a little troubled by the applicant’s impression that he had the potential outcome of returning to work, back to virtually normal, as 90% to 95%. This is not in line with literature evidence. It is accepted that the chances of successful spinal fusion in compensable injuries are at 50%.
Dr Machart noted Dr Casikar’s suggestion of L5/S1 microdiscectomy. Sciatica was not a predominant feature. “Back pain is”. Spinal fusion is a recognised way of treating the pathology. Extension of the fusion needs to be over two levels, rather than one level.

Mr Harley McAllister - physiotherapist

Mr McAllister reported to EML on 9 September 2021, having reviewed the applicant for the first time, for the management of chronic low back pain.
The applicant had presented with central and right sided lumbar pain, with intermittent referred pain into the right thoracic spine and right posterior thigh. Mr McAllister had noted his MRI.
On examination, Mr McAllister recorded restriction of lumbar range of motion in all planes. Pain was most significant on lumbar extension. Slump and SLR were positive for neural tension on the right.
Mr McAllister opined that the applicant’s clinical presentation matched the MRI findings of multi-level disc protrusion and degeneration. Considering the chronicity of the presentation, it was likely that pain and dysfunction were likely related to fear avoidance and hypersensitivity.
Mr McAllister’s initial treatment involved light release to the lumbar and thoracic musculature. The applicant was commenced on a graded core strengthening program, which would focus on pelvic and lumbar control and desensitisation. Mr McAllister intended to commence a graded motor imagery program, to assist with chronic pain management, over the coming week.
Mr McAllister reported to Dr Hayward on 18 February 2022.
The applicant had been attending physiotherapy for lumbar disc pathology since 9 September 2021.
Mr McAllister reported that physiotherapy and remedial massage sessions had been “a bit hit and miss” over the past six weeks, due to Covid isolation and social factors, but the applicant was particularly diligent with his independent stretching and strengthening program.
The applicant was having a lot of difficulty controlling pain. He continued to get short term benefit from manual therapy, and Mr McAllister encouraged him to continue with this. He remained far too irritable to tolerate progression with strength training.
Mr McAllister opined that it was becoming increasingly more evident that the applicant was unlikely to have a satisfactory outcome through conservative management. He had been reviewed by several specialists, and Mr McAllister encouraged further input and an escalation of treatment in this area.
Mr McAllister planned to provide a lumbar graded motor imagery program to address the hypersensitivity component of the applicant’s presentation.

Medical investigations

Dr Charlie Hsu reported on MRI of the applicant’s thoracic and lumbar spines on 8 November 2020.
Relevantly, Dr Hsu reported that there was an L5/S1 central and right paracentral disc protrusion causing posterior displacement of the descending right S1 nerve root at the lateral recess; a small posterior central annular fissure at the L4/5 level; and mild lower lumbar facet joint arthrosis.
Dr Beng Tan reported on 11 February 2021 on X-ray of the lumbar spine, when no abnormality was detected.
On 6 October 2021, Associate Professor Ridley reported on MRI of the lumbosacral spine. He noted relevantly that at L4/5 there was dehydration of the disc. The neural fissure was again noted, unchanged from 2020. There was a mild broad-based disc protrusion without significant canal stenosis or nerve root compression.
At L5/S1, there was moderate narrowing of the disc space. There was relatively marked reduction in size of the previous disc extrusion. On the current examination, only a small amount of material projected posteriorly. There was no evidence of disc protrusion, canal stenosis or nerve root compression. The facet joints appeared within normal limits. There was no evidence of a recent bony injury. The paravertebral soft tissues appeared unremarkable.
A/Prof Ridley concluded that there was healing of the previous L5/S1 disc extrusion. There was no current evidence of nerve impingement.

SUBMISSIONS

The submissions have been recorded. I will therefore refer to them only briefly.

Applicant

The applicant referred to the decision of Deputy President Roche in Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab). He referred to Dr Singh’s evidence as to the appropriateness of the surgery. He submitted that Dr Casikar did not say that he did not need a fusion, but that he could try microdiscectomy.
The applicant submitted that it is a matter for him, when presented with all the options, to decide. This is a factor to be considered, although it may not fit within the tests in Diab. He referred to his significant use of medication and gastrointestinal problems. Cortisone injections provided only temporary relief, and he did not want to keep having them. He keeps trying but nothing works. There is nothing else the physiotherapist can do. He understands the risks.
The applicant submitted that he wants to get back to work. He has not been able to work since October 2020. He has given evidence about his difficulties. He has a very ordinary quality of life. There is a degree of, essentially, desperation.
The applicant submitted that no one says surgery won’t be effective. Dr Casikar suggested other options, but he doesn’t want to take them. No one has expressed the view that the costs of the surgery are excessive. Dr Machart accepts that it is an appropriate and usual form of treatment.
The applicant submitted that I would not be persuaded that, as suggested by Dr Casikar, he had sustained injury at only one level. He submitted I would be comfortably satisfied by the opinions of Drs Singh and Machart. They have clearly outlined why the surgery is required and other options are not suitable. A discectomy will not improve his back pain, which is an important factor against accepting Dr Casikar’s opinion. Dr Casikar has not taken into account that the adjacent level is not disease free.
The applicant finally submitted that he had considered Dr Machart’s evidence and accepted that the chance of success may be 50%. He had considered and was prepared to undertake the risks.
In reply to the respondent, the applicant submitted that it was important to refer to the MRI dated 8 November 2020, compared to the one dated 6 October 2021. He wanted to have the surgery 12 months ago. The insurer waited until August 2021 to dispute it, then qualified Dr Casikar. The applicant was required to prepare his evidence and file the Application. There will always be delay.
The applicant submitted that I would not accept Dr Casikar’s opinion when he has not considered the later MRI. There has been a reduction in the disc extrusion, but it has not resolved. The only person who has assessed it is Dr Machart. He has considered both MRIs and his opinion would persuade me. The protrusion is still there, and the applicant still has the condition.

Respondent

The respondent also relied on Diab. The applicant had not dealt in his submissions with the MRI dated 6 October 2021. He had failed to include it in the Application and the respondent lodged it. Dr Singh failed to have any regard to it. It goes to the adequacy of the treatment and the foundational basis for it. There is no indication that the applicant knows the L5/S1 disc extrusion is healing.
The respondent submitted that Dr Casikar, who reported before the MRI dated 6 October 2021, was prescient, and his views become compelling. He found the applicant’s symptoms out of proportion with the pathology. It is clear that he indicated the applicant’s neurological symptoms resolved after the epidural injection.
The respondent submitted that Dr Singh has not commented on the MRI dated 6 October 2021, which throws into doubt the efficacy of his opinion. Dr Machart has referred to it. Dr Casikar has not, but the applicant bears the onus. Dr Machart’s opinion is not a “ringing endorsement”.
The respondent submitted that Dr Machart had concerns. He had no reason not to support the technical aspects of the surgery. It is one of the tools available. He was troubled that the applicant thought the chances of successful surgery were 90% to 95%. It is true that he’s aware that they may be only 50%, but Dr Singh has given him the impression the outcome will be a return to full time work. The respondent submitted that it sounds like the applicant doesn’t even know the condition is resolving.
The respondent submitted that Dr Singh should have provided a further report commenting on the MRI dated 6 October 2021. This is a lacuna in the evidence and means he hasn’t looked at the availability of alternative treatment or the appropriateness of treatment. Dr Machart has suggested alternatives and that the success rate is 50%, which goes to the factors in Rose v Health Commission (NSW)[1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose) – the cost of the treatment is $50,000, with a 50% success rate.
The respondent submitted that Dr Casikar is not saying that surgery isn’t warranted, but that other options should be considered. Dr Singh appears to believe that as the cortisone injection provided only temporary relief, he must embark on an extensive two-stage procedure.
The respondent submitted that, without comment by Dr Singh on the MRI dated 6 October 2021, the Application is premature, and the applicant should fail. As to whether it is up to the applicant to decide, the respondent submitted that the issue is also whether there is evidence that he is completely cognisant of the appropriateness of the treatment, when Dr Singh has not given any advice about that MRI.

SUMMARY

The only issue to be determined is the reasonable necessity of the proposed surgery.
The applicant has given evidence about the effects of the injury on his capacity for work, daily life, family life, recreational activities, psychological condition, and the side effects of the medication he must take for control of pain. His quality of life is “very ordinary”.
The applicant is aware of the risks of the surgery, including that its success rate may be only 50%. He is willing to undertake the rehabilitation that he knows will be required should he undergo the surgery. Mr McAllister commented that he was particularly diligent with his independent program.
Both parties have referred me to the decision of Roche DP in Diab.
Roche DP said in Diab [at 86]:
“Reasonably necessary does not mean ‘absolutely necessary’…If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonable necessity is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment claimed is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply.”
Roche DP cited with approval the decision of Judge Burke of the Compensation Court in Rose and said:
“ [88] In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose…namely: (a) the appropriateness of the particular treatment; (b) the availability of alternative treatment, and its potential effectiveness; (c) the cost of the treatment; (d) the actual or potential effectiveness of the treatment, and (e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
[89] With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. Evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
[90] While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon BleuCookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo [Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233] is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealthof Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’”.
Dr Singh has been treating the applicant since February 2021. He is well placed to provide an opinion as to the reasonable necessity of the proposed surgery. I do not accept that his opinion should be disregarded because he has not commented on the MRI report dated 6 October 2021.
Dr Singh opined on the reasonable necessity of the surgery in his report dated 17 December 2021. He noted the applicant’s increasing pain and the concern that he had been taking opioids for more than 18 months. Further conservative treatment was unlikely to help him. Dr Singh was basing his assessment not only on the radiology, but on the history of the applicant’s progress and his treatment.

Dr Singh described surgery as the appropriate method of treatment of a disc herniation and discogenic back pain. As the applicant submitted, the MRI dated 6 October 2021 showed that there was a reduction in size of the disc extrusion, not that it had resolved.
The applicant’s evidence post-dates the MRI by some four months. His condition has not improved, and when he saw Dr Singh before Christmas 2021, at about the time he prepared his report, the doctor wanted to go ahead with the surgery. It must be assumed that, given the applicant’s presentation and failure to improve with conservative treatment, Dr Singh believed the surgery was reasonably necessary treatment.
Dr Machart clearly saw the report of the MRI dated 6 October 2021. He has not only referred to it under the heading of medical reports that are relevant to his review, but he has also quoted from it. He has also quoted from the MRI report dated 8 November 2020 (although it is erroneously recorded as being dated 8 October 2020).
Notwithstanding his reference to both MRI reports, Dr Machart opined that the applicant had pathology at the lowest two discs; and conservative treatment had failed to relieve the symptoms. He shared Dr Singh’s concerns about the use of prescription analgesics.
Dr Machart agreed that the proposed treatment is a recognised way to treat the applicant’s pathology, which he accepted existed. While he properly expressed concerns about the applicant’s impression regarding the success rate of the surgery, he expressed no such concerns about the change recorded between the MRI reports in November 2020 and October 2021. I would have expected him to do so, had he had such concerns.
While Dr Machart’s report is relatively brief, he has referred to the applicant’s history and the documents provided; examined the applicant, within the constraints of a Telehealth assessment; addressed the issues he was asked to address; and when asked to provide any further comments, raised the success rate of the surgery. I see no reason not to accept and place weight on his opinion.
Dr Casikar suggested that perhaps a right S1 nerve block should be tried. He agreed that surgery may eventually be required but disagreed as to the nature of that surgery. Dr Singh has adequately explained why he has recommended the surgery in respect of which the claim is made, and which the applicant wishes to undergo.
With reference to Diab, both Dr Singh and Dr Machart have opined that the treatment is appropriate. Dr Casikar disagreed.
There is alternative treatment available, and Dr Casikar and Dr Machart have referred to this.
Whilst Dr Machart opined that “no surgery” was an option, he did not recommend it. Rather, he opined that the type of surgery is up to the surgeon.
Dr Casikar suggested an S1 nerve block, but the applicant’s evidence is that he does not want to have more nerve blocks, but to proceed with the surgery. Dr Singh reported that an injection of his lumbar spine gave him only transient relief, and the pain had returned. Dr Machart did not suggest nerve blocks as an alternative.
Dr Casikar also suggested that a discectomy may be more appropriate surgery, but as I have noted, Dr Singh does not agree with this. Dr Machart did not suggest it, and he explained why – the applicant’s predominant feature is back pain, not sciatica, and spinal fusion is a recognised way to treat it. Fusion at adjacent levels is appropriate. The effectiveness of the alternative treatment suggested by Dr Casikar must be in some doubt.
The cost of the treatment is not insignificant. However, cost was not raised by the respondent as a reason for disputing liability, and it must be accepted that major two-stage surgery, involving hospitalisation and seven to 10 days of in-patient rehabilitation following discharge, as quoted by Dr Singh, will necessarily involve significant cost.
Dr Singh and Dr Machart accept that the proposed treatment has the potential to be effective, although they differ on just how effective it may be. Dr Casikar does not believe it would be effective, apparently because the outcome in a workers’ compensation patient is likely to be extremely poor.
As to the acceptance by experts of the proposed treatment, Dr Singh and Dr Machart accept it as a form of treatment for the applicant’s condition. Even Dr Casikar did not say it is not an accepted form of treatment. Rather, he did not believe it was appropriate for the applicant.
The opinion of Dr Singh, as the treating specialist is entitled to some weight, provided he has adequately explained his reasoning, and it has been provided in a “fair climate”. I have explained why I do not accept that his opinion should be disregarded because he has not commented on the MRI performed in October 2021.
I am persuaded by Dr Singh’s evidence and that of Dr Machart, which I prefer over that of Dr Casikar, as well as the applicant’s evidence, that it is appropriate that the applicant be afforded the opportunity to undergo the proposed surgery. I have determined that it is reasonably necessary medical treatment.
The applicant submitted that the treatment claimed is set out in the attachments at pages 1 and 2 of the Application to Admit Late Documents, dated 17 May 2022, filed by the respondent.
The respondent is to pay, pursuant to section 60(5) of the 1987 Act, the cost of surgery proposed by Dr Singh.
The orders are set out in the Certificate of Determination.

[2022] NSWPIC 305

17 June 2022