Hudson v Toll Holdings Ltd
[2025] NSWPIC 517
•29 September 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Hudson v Toll Holdings Ltd [2025] NSWPIC 517 |
| APPLICANT: | Philip Hudson |
| RESPONDENT: | Toll Holdings Ltd |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 29 September 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for proposed lumbar spine surgery; dispute whether surgery was reasonably necessary as a result of the accepted injuries; Kooragang Cement Pty Ltd v Bates, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service, and Diab v NRMA Ltd discussed and applied; Held – surgery was reasonably necessary as a result of injuries; respondent to pay for proposed surgery pursuant to section 60. |
| DETERMINATIONS MADE: | The Commission determines: 1. The surgery proposed by Dr Shiva is reasonably necessary as a result of the applicant’s injury with the respondent on 16 August 2019. The Commission orders: 2. The respondent to pay the costs of and incidental to the surgical procedure of L4/5 anterior lumbar interbody fusion, posterior decompression and rhizolysis of the L4/5 nerves above and below the pedicle, pedicle screw fixation, bone graft and paravertebral nerve block. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
Mr Philip Hudson (the applicant) sustained an injury to his lumbar spine whilst employed by Toll Holdings Pty Ltd (the respondent). Liability was initially disputed by the respondent and ultimately determined by the Workers Compensation Commission where it was found the applicant sustained an injury to his lower back on 16 August 2019 in which employment was the main contributing factor and further, the injury, at the time of that determination (November 2020) had not resolved.[1] Further, it was found;
(a) the applicant sustained a non work related L1/2 transverse fracture after falling down stairs on 23 June 2019 which healed allowing him to return to pre-injury duties “without pain or restriction”,
(b) the lumbar spine injury on 16 August 2019 after being struck by a forklift in the workplace was the main contributing factor to the aggravation of degenerative changes in the lumbar spine resulting in persistent low back pain and incapacity, and
(c) the opinion of the respondent’s qualified medical specialist, (Dr Bentivoglio) that persistence of symptoms as at August 2020 was due to pre existing constitutional degenerative changes in the lower back was not supported by the chronology of events, contemporaneous medical reports or applicant’s history.
[1] Certificate of Determination - 5426/20.
Four years later, the applicant claims the cost of L4/5 spinal surgery. The respondent denies liability for surgery maintaining it arises from non-work related injury in June 2019 and progressive degenerative changes. This dispute caused an Application to Resolve a Dispute (ARD) to be filed in the Personal Injury Commission (Commission).
The matter underwent the usual case management pathway ultimately proceeding to arbitration at which time Ms Grotte of counsel instructed by Ms Herrera represented the applicant. Mr Gaitanis of counsel instructed by Mr Galea represented the respondent.
Ms Rahme was the insurer representative.Evidence before the Commission consisted of the ARD, the Reply and an Application to Lodge Additional Documents filed by the respondent on 17 September 2025. No oral evidence was called.
There is no dispute the findings of the Workers Compensation Commission are binding on both parties. Given this, in the interests of brevity, I will not slavishly repeat the history of injury rather will focus on the evidence relevant to the current dispute, namely;
(a) does the need for the proposed surgery result from workplace injury on
16 August 2019 and if so;(b) is the proposed surgical procedure reasonably necessary?
The applicant’s evidence
Statement evidence
In his statement dated 21 July 2025,[2] the applicant records due to ongoing pain, restriction and incapacity, his general practitioner referred him to Dr Shiva, neurosurgeon for management advice. Dr Shiva suggested surgery.
[2] Folio 2 ARD.
The statement records pain is significant and unremitting. Standing and walking is limited to 10 minutes. Prolonged sitting is uncomfortable. Social activity is impaired. Household tasks are restricted with assistance required for personal care. He desires the surgical treatment to “improve and ease the pain” because nothing else has provided symptom relief.
Medical evidence
Dr Shiva, treating neurosurgeon reported on 29 October 2024.[3] He recorded the injury when the applicant was struck by a forklift and noted back injury ever since. His examination revealed tenderness in the regions of the facet joints of the L4/5 bilaterally with restriction in extension/ rotation on account of pain. Physiotherapy, medications and cortisone injection into the L4/5 facets provided “brief relief”. He considered the applicant to be a suitable candidate for L4/5 anterior lumbar interbody fusion, posterior decompression and rhizolysis of the L4/5 nerves above and below the pedicle, pedicle screw fixation, bone graft and paravertebral nerve block.[4]
[3] Folio 246 ARD.
[4] Folio 303 ARD.
Dr Massoud is the applicant’s long term general practitioner. He has issued a number of Certificates of Capacity during the life of the claim recording the unrelated injury to the L1/2 lumbar transverse process fracture in private circumstances in June 2019 and then the workplace injury only two months later which resulted in an aggravation of the back pain, radicular symptoms down the left leg and annular tears at L4/5.[5]
[5] Folio 318 ARD.
In his report dated 14 November 2024,[6] he noted full recovery of the non work related L1/2 transverse process fractures and the history of a return to heavy work duties without issue until the forklift incident. He documented five years of chronic pain with deterioration of physical and psychological health generally.
[6] Folio 243 ARD.
He records conservative management has failed to provide sustained relief and documented the applicant’s intolerance to analgesia due to nausea, constipation and reflux. He reported all conservative treatment approaches had been exhausted and shared the view of the neurosurgeon that surgery was appropriate because it would likely reduce ongoing radiculopathy and potentially increase functional capacity.
Matthew Viola, physiotherapist in an undated report[7] confirmed the history of fractures to the L1/2 transverse process which had resolved allowing a return to unrestricted work which included up to 15,000 steps per day until injury on 16 August 2019 when the applicant was struck by the forklift. Since then, pain levels have been noted to be significant with pins and needles down the posterior right leg. He recorded the applicant suffered approximately two falls per week due to his lack of mobility. He recorded persisting restricted range of movement (between one quarter to one third of normal in all planes), weakness on standing, limited walking, sitting and lifting tolerances.
[7] Folio 248 ARD.
As regards treatment, he reinforced a preference for conservative management with surgery considered only as a last resort. He reported the “excruciating” pain which has been variable over the past five years; little progress with 12 months of physiotherapy; restrictions in activities of daily living including a limit in walking of 10 minutes, along with the regular falls all justified surgery as “absolutely reasonably necessary” resulting from the workplace injury.
Dr Dixon, qualified orthopaedic surgeon reported on 13 February 2025.[8] He noted the L4/5 forklift injury in August 2019 and the L1/2 transverse fracture injury which had healed. Examination revealed restriction in range of movement, positive femoral stretch test, wasting of the right thigh by 2cm as compared to the left and noted whilst there was no objective sensory loss evident on his examination the applicant had complained of sensory loss radiating down the leg to the great toe.
[8] Folio 239 ARD.
He diagnosed “post traumatic lumbar stiffness with dysmetria, positive femoral nerve root stretch test,[9] disc protrusion at the L3/4, a disc bulge at the L4/5 and radicular complaint with right thigh femoral neuralgia.” He forecasted the need for decompression laminectomy and fusion at the L4/5 level with posterior lumbar interbody fusion but did suggest a provocative discogram to ascertain the disc integrity above and below the fusion under CT control. As regards to whether the surgery was reasonably necessary he considered it would be effective in relieving the radicular complaint and in stabilising the lumbar spine as peri neural blocks, analgesia and physiotherapy treatments were without sustained benefit. He forecasted the benefits of surgery to be relief of back pain, specifically the radicular complaint and commented the procedure was widely accepted by the medical profession.[10]
[9] This test assesses nerve root compression or irritation - Folio 241 ARD.
In his supplementary report dated 2 June 2025,[11] he emphasises the resolution of the L1/2 transverse process fractures and considered the ruptured L3/4 disc was the most probable pathology. He considered the work injury did contribute to the disc protrusion at the L4/5 which was to be addressed by the surgery proposed.
[11] Folio 234 ARD.
Respondent’s evidence
Throughout the course of the claim, the respondent qualified Dr Bentivoglio. As indicated above, the earlier determination did not consider his opinion persuasive with regards to injury and causation, however as properly submitted by the respondent, this is a different issue.
In addition to the two previous reports relied upon in prior proceedings dated 5 February 2000 and 13 August 2020, the respondent now relies on reports dated 9 December 2022,
3 January 2023, 16 September 2024, 9 October 2024, 4 June 2025 and 16 September 2025. The findings are largely repetitive. In his report dated 9 December 2022,[12] he considered the applicant had “obviously exacerbated pre existing degenerative disease” in the injury at work. He concluded that the exacerbation should have lasted for about six months with ongoing symptoms “related to progression of his degenerative change”. His view was the aggravation of the effects of workplace injury had ceased. He considered the applicant largely unfit for work. He allowed a deduction of 10% for pre existing degenerative disease.[12] Folio 91 Reply.
In his report dated 16 September 2024,[13] he recorded decreased back movement, bilaterally depressed ankle reflexes but no evidence of sensory loss or radiculopathy but possibly some axial discogenic low back pain. He accepted fractures of the L1/2 transverse process had made a complete recovery within six weeks of the fall in June 2019 (and prior to the applicant’s return to work). He noted physiotherapy intervention for 14 months and cortisone injections which provided short term relief. He diagnosed axial back pain secondary to degenerative disc disease at L3/4 and L4/5 with no neurological compression or radiculopathy or neuropathic pain. As regards incapacity and symptoms he concluded that whilst the degenerative disc disease was aggravated by the accident on 16 August 2019, the fall that he had down the stairs (resulting in the transverse fractures) was a more substantial contributing factor to his back issues even though he got back to work with minimal discomfort. Pain clinic intervention was recommended and surgery was not considered urgent due to the lack of neurological findings. He opined not all treatment had been exhausted and indicated the applicant could be a poor surgical candidate because of his heavy smoking, such a habit likely preventing successful fusion. Outcome of surgery was difficult to predict but estimated at 60-70% improvement/success. As regards prognosis he doubted there would be further improvement given the lack of progress since injury. He concluded “the injury has materially contributed to the need for the proposed surgery but I doubt if the proposed surgery is going to have a significant benefit for him.”[14] (my emphasis).
[13] Folio 100 Reply.
[14] Folio 108 Reply.
In his report dated 9 October 2024 he noted the failure of conservative management and again advocated pain management intervention. He raised the risk of adjacent disease following surgery. He reinforced his view ongoing incapacity arises due to the non work related fall down the stairs which resulted in fractures of the L1/2 with the workplace injury on 16 August 2019 playing a minor contributing factor and exacerbating it.
In his final report dated 16 September 2025,[15] he acknowledges all conservative measures had failed and considered the non work related fall “when he broke his transverse processes are more a contributing factor to the disc problems at L2/3 and L3/4 rather than the simple bumping he got from the forklift”. He repeated the possibility of 60-70% improvement as a result of surgery but again warned of possible adjacent disease.
[15] ALAD filed by respondent on 17 September 2025.
It is noteworthy that throughout the various assessments, he recorded the applicant’s presentation was consistent and free from embellishment or exaggeration.[16]
[16] Folio 88 and 111 Reply.
Submissions
Counsel for the respondent submitted;
(a) it accepts it is bound by the previous determination of the Workers Compensation Commission in relation to injury, however the issue for determination here is unrelated, that is whether the current need for surgery is reasonably necessary as a result of the injury on 16 August 2019;
(b) the applicant’s statement provides little insight into the management of his symptoms following the previous determination;
(c) Dr Dixon’s opinion should be given little weight. He has suggested discography be undertaken which has not occurred. His opinion fails to properly engage with the key question, that is whether the surgery is reasonably necessary and overall his opinion does not discharge the onus required to establish on the balance of probabilities that the surgery is reasonably necessary and related to the workplace injury;
(d) Dr Bentivoglio’s opinion should be preferred. He has cautiously analysed the radiological findings and his examination findings did not demonstrate any neurological findings warranting surgical intervention, supporting his view that surgery would only address degenerative disease present and the effects of the previous non-work related injury. He emphasises the risks of surgery including adjacent disease and considers efficacy would be compromised as the applicant is a heavy smoker. The applicant’s statement and medical evidence have not addressed these important matters which the respondent asserts is relevant in the assessment of ‘reasonably necessary’, and
(e) the applicant has not exhausted all conservative modalities of treatment and the recommendation in relation to a pain management program by both qualified specialists should be exhausted at first instance.
Counsel for the applicant submitted;
(a) Dr Bentivolgio’s opinion is at odds with the previous findings of the Workers Compensation Commission which found the applicant aggravated pre-existing degenerative changes at the L4/5 level and that events on 16 August 2019 were the main contributing factor to his injury;
(b) the applicant is credible. He has now had ongoing pain for five years. He has undergone physiotherapy, injections and it has been established that he has an intolerance to medication. His activities of daily living, activity, physical and psychological well-being have demonstrably deteriorated over the past five years. Surgery is supported by Dr Massoud, Dr Shiva, Matt Viola and Dr Dixon;
(c) it has been forecasted surgery will have the impact of reducing the applicant’s pain which has been present now for five years, varies between 6-9/10 and impacts all areas of his life. He has suffered multiple falls and has been unable to return to work. No other treatment has been able to provide the relief proposed by surgery and this renders the treatment reasonably necessary;
(d) the medical evidence establishes on the balance of probabilities that the need for surgery does arise out of the 16 August 2019 incident and that there are no alternatives likely to be effective; it is accepted by the medical profession generally as being a suitable intervention for this type of injury and is likely to ameliorate the effects of the injury to some extent. The treatment proposed falls squarely within the definition of reasonably necessary, and
(e) the opinions of Dr Bentivoglio are inconsistent not only internally but also with the previous findings of the Workers Compensation Commission. However the opinion is helpful as he has reported “the injury has made a material contribution” to the need for surgery. It follows the maintenance of this dispute is unjustified.
In reply, the respondent submitted;
(a) the reports of Dr Massoud and Mr Viola should be given little weight. Surgery is not their field of expertise and whilst they have attempted to provide an analysis of the benefits of the procedure, this is ultimately a question for the specialist physicians;
(b) much has been said about the issue of estoppel which deals only with injury and causation. The key question for determination here is whether the current need for surgery arises out of workplace injury on 16 August 2019. The findings of the previous Commission, whilst binding, do not deal with this issue and the respondent is satisfied its evidence reveals that the need for surgery is unrelated to the subject injury, and
(c) whilst Dr Bentivoglio has reported the injury has made a material contribution, his reports must be read globally to understand what is meant by this statement.
Issue 1
Does the need for the proposed surgery result from any workplace injury on
16 August 2019?
As indicated above it has been unnecessary to undertake a slavish assessment of the historical matters as previous findings of the Workers Compensation Commission have determined injury on 16 August 2019 was the main contributing factor to the aggravation of the applicant’s lumbar spine.
As concerns these proceedings however, the applicant must establish the need for surgery is related to his injury on 16 August 2019. This must be done on the balance of probabilities where I need to be “actually persuaded” (Nguyen).[17]
[17] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
Having considered the evidence and submissions above, I find the applicant has established on the balance of probabilities that surgical intervention is required due to injury on
16 August 2019 because;(a) I accept the histories provided by the applicant, Dr Massoud, Dr Shiva and
Dr Dixon that the applicant had recovered from the L1/2 fracture and had returned to unrestricted workplace activity until he was struck by the forklift, such opinions and conclusions being consistent with the previous Certificate of Determination;(b) the surgery proposed is to address pathology and symptoms arising from the L4/5 level. Dr Shiva, Dr Dixon, Dr Massoud and Mr Viola have all reported that the symptoms arise from that level and have been present since the 16 August 2019 injury. Dr Bentivoglio has also accepted that there was an aggravation to the L4/5 and considered injury “materially contributed” to the need for surgery;
(c) whilst I accept the applicant had degenerative changes at the L4/5 level these were asymptomatic prior to the forklift incident. I so find;
(d) I did not find the bulk of Dr Bentivoglio’s opinion persuasive. This is because;
(i)he reports surgery is required to address symptoms arising from the non-work related fall to the L1/2 which he considered was a more substantial contributing factor to his back issues despite the return to work with minimal discomfort. I find this to be ipse dixit, particularly in circumstances where the evidence demonstrates; the L1/2 fracture healed fully; no treatment was required post healing or indeed forecasted; and the applicant returned to full duties until the injury to the L4/5. He has not explained but asks the reader to accept that the surgery at an entirely different level (L4/5 level) is somehow connected to the discrete and healed L1/2 injury. He has also failed to explain why he considers the non work related injury plays a substantial contributing factor despite the subsequent injury to the L4/5;
(ii)he has failed to engaged with the previous findings of the Workers Compensation Commission in which it was accepted that the non-work related injury affecting the L1/2 had resolved and back symptoms and incapacity arose from injury on 16 August 2019 predominantly aggravating pre-existing degenerative changes at the L3/4 and L4/5 (which were independent of any injury to the L1/2 in private circumstances);
(iii)he suggests the proposed surgery is to address pre-existing degenerative changes present prior to the 16 August 2019 injury on the basis that the effects of any aggravation of pre-existing degenerative changes on that day would have lasted no more than six months in his view. Despite acknowledging symptoms which have remained largely unchanged for a period of four years, he provides no reasons as to why the aggravation has not ceased or why it should be accepted that his spine had returned to its pre injury state. Importantly he acknowledges the applicant’s presentation was genuine and free from embellishment or exaggeration;
(iv)he also considers surgery is now required due to the progression of degenerative changes in the spine. His reports contain no reasoning for the progression particularly given he acknowledges the applicant has largely been sedentary and has not returned to work. It could be inferred that the progression is age related but this has not been specifically stated nor rationalised given the applicant’s significant inactivity since his workplace injury;
(v)he postulates the proposed surgery is to address pre-existing degenerative changes and the previous non work related injury, yet only makes a deduction of 10% for preexisting degenerative disease/condition, which is insignificant in the global assessment of the applicant’s presentation and inconsistent with his statements that the pre existing condition (degenerative changes) is the predominant factor. I accept that such a figure is generally attributed when there is an absence of medical imaging, but this is not the case here and;
(vi)his reports suggest an absence of radiological or neurological signs to justify the surgery but such findings are inconsistent with the findings of radiculopathy, wasting and weakness recorded by Dr Shiva, Dr Massoud, Dr Dixon and Mr Viola.
Issue 2
Is the proposed surgical procedure reasonably necessary?
The proposed surgery is L4/5 anterior lumbar interbody fusion, posterior decompression and rhizolysis of the L4/5 nerves above and below the pedicle, pedicle screw fixation and bone graft and paravertebral nerve block.
Section 60 of the 1987 Act states that if, as a result of an injury received by a worker, it is reasonably necessary that any medical or related treatment be given, the workers employer is liable to pay for the cost of that treatment or service.
The authorities on the interpretation ‘reasonably necessary’ are overwhelming although three key principles stand out (but by no means are they exhaustive) relevantly;
(a) firstly, the applicant must establish on the balance of probabilities the treatment claimed, more probably than not is “reasonably necessary” (Nguyen);[18]
[18] Nguyen v Cosmopolitan Homes Pty Ltd [2008] NSWCA 246 and Yucel v AAES Pty Ltd t/as Roadtrack [2015] NSWWCCPD 51.
(b) secondly, whether treatment is “reasonably necessary”[19] (Rose) is a question of fact depending upon the circumstances and evidence in each case and will often require the weighing up of competing considerations such as:
[19] Rose v Health Commission (NSW) [1986] 2 NSWCCR 32 and Bartolo v Western Sydney Area Health Service [1997] 14 NSWCCR 233 at [39].
(i)“is it better that the worker have the treatment or not?” (in the sense that there are reasonable prospects that the worker’s situation will be improved or ameliorated by the treatment (Diab),[20] and
[20] Roche DP in Diab v NRMA Ltd [2014] NSWWCCPD 72.
(ii)the appropriateness of the particular treatment, its actual or potential effectiveness, the availability of alternative treatments and their potential effectiveness, the costs of the treatment (in particular relative to the cost of alternative treatments) and the acceptance by medical experts of the treatment as being appropriate and likely to be effective;
(c) thirdly, the need for treatment must be “the result of an injury”. The authorities establish assessment requires:
(i)a common sense evaluation of the causal chain the treatment is reasonably necessary “as a result of the injury” (Kooragang);[21]
(ii)the expression “results of”, is a question of fact, and it is unnecessary to establish the work injury was the only, or even a substantial, contributing factor to the need for medical treatment and it is sufficient to establish only that the injury “materially contributed” to that need (Murphy),[22] and
(iii)the worker establish:
“the injury was a material cause of the need for the proposed treatment . . . , even if other factors were also present that may have contributed to that need (the fundamental principle that employers must take their workers as they find them”
and that “a condition can have multiple causes”, these concepts making clear that the presence of a pre-existing condition, but for which treatment might otherwise not have been necessary, will not preclude a finding that the need for treatment results from the injury in question.) (Schokman.)[23]
[21] See Kooragang Cement Pty Ltd v Bates [1994] 35 NSWLR 452.
[22] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
[23] Per Roche DP in Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [54] (Schokman).
In addition to the arguments above, the respondent also advanced surgery was not reasonably necessary as the applicant is a heavy smoker thereby compromising the efficacy of the procedure; no neurological signs were identified by Dr Bentivolgio; the suggested discogram by Dr Dixon had not been undertaken; and finally the applicant has not undergone a pain management program as suggested by Dr Bentivolgio.
Having considered the evidence and submissions, I find the applicant has established on the balance of probabilities, surgery is reasonably necessary and injury on 16 August 2019 has materially contributed to such intervention because;
(a) I have found the bulk of the medical evidence (apart from Dr Bentivoglio) demonstrates radiological and neurological findings of radiculopathy, weakness and wasting justifying surgical intervention;
(b) the applicant has exhausted all conservative modalities for a period of over five years documented by Dr Shiva, Dr Massoud and Mr Viola, yet pain remains chronic. The surgery has been proposed as a last resort as there has been no relief in symptoms with various modalities since 2019;
(c) the suggestion of a pain management program is an ambit one. Pain management programs do not address pathology, rather symptoms arising from the effects of injury or the aggravation of any underlying pathology. Such programs may assist in better management of pain. However the underlying aggravated pathology remains and in this case impacts the capacity to sit, stand, carry and weakness has resulted in falls. The medical evidence supports that surgery is the only option to address the permanent aggravation of degenerative changes arising from the injury and has the capacity to alleviate symptoms/impairments. I so find;
(d) further the suggestion of a pain management program and modalities proposed within such program are non-specific. The applicant has undergone physiotherapy, injections, exercise physiology, general rehabilitation and is intolerant to medication. There is insufficient detail in the proposed suggestion of a pain management program to support that any modalities employed in it would differ from the above and would reduce symptoms given their five year chronicity;
(e) I accept the efficacy of the surgery may be compromised by the applicant’s smoking. This is a consideration for the treating surgeon and does not detract from the assessment and finding the proposed surgery is reasonably necessary to address the effects of the injury given all other options have been exhausted;
(f) I acknowledge Dr Dixon has recommended a discogram of the spinal level above and below the L4/5 prior to surgery. The failure to have undertaken such an investigation does not impact on any finding of ‘reasonably necessary’ as the decision to undertake such a precautionary investigation to reinforce diagnosis belongs to Dr Shiva assuming it falls in line with his preoperative management protocols;
(g) I acknowledge the risks and complications advanced by Dr Bentivolgio, i.e. possible adjacent disease. Again, this real but unpredictable risk is a matter for the treating surgeon to address and does not discount the finding surgery is ‘reasonably necessary’;
(h) the bulk of the medical evidence prognosticates relief from surgical intervention by between 60-70% and no other alternative procedure has been nominated;
(i) I find the injury is the material cause for surgery because the medical evidence and commonsense assessment establishes following the L1/2 fracture and its healing no further treatment was required or forecasted to that region. Following the injury on 16 August 2019, treatment and investigations were focused on the lower lumbar levels and not the L1/2. It follows the injury on 16 August 2019 materially contributed to the proposed surgery to the L4/5 level and is not due to the L1/2 injury;
(j) I accept the applicant did have pre existing degenerative changes in the lumbar spine although find he was largely asymptomatic until the forklift injury. There is no evidence to suggest that he would have required this surgical procedure had it not been for the forklift injury. On this basis I find the need for surgery does “result from” the injury in question (Schokman) and injury has “materially contributed” to the need for it (Murphy);
(k) I find there is no evidence to suggest the effects of the aggravation of the L4/5 have ceased as postulated by Dr Bentivoglio. There is no reasoning advanced to support that assertion and the statement is entirely inconsistent with the claims history, and
(l) overall, the evidence confirms there are no alternatives to surgery as efficient both in terms of time and cost.
For the reasons above, I find the applicant has established on the balance of probabilities, (Nguyen) that the injury materially contributed to the need for the proposed surgery with reference to the commonsense test of causation (Kooragang) and the procedure claimed is reasonably necessary (Rose) and (Diab).
SUMMARY
Accordingly I make the findings and orders set out on page 1 of the Certificate of Determination.
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