Hull v Estia Health
[2025] NSWPIC 305
•1 July 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Hull v Estia Health [2025] NSWPIC 305 |
| APPLICANT: | Hull |
| RESPONDENT: | Estia Health |
| MEMBER: | Karen Garner |
| DATE OF DECISION: | 1 July 2025 |
CATCHWORDS: | Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; accepted work injury to cervical spine; applicant claimed compensation for cost of C5/6 and C6/7 anterior cervical discectomy and fusion surgery; whether the surgery was reasonably necessary as a result of the accepted injury; Held – C5/6 and C6/7 anterior cervical discectomy and fusion surgery is reasonably necessary treatment as a result of the accepted cervical spine injury; order that the respondent to pay the costs of and incidental to the surgery pursuant to section 60. |
| DETERMINATIONS MADE: | 1. The C5/6 and C6/7 anterior cervical discectomy and fusion surgery proposed by Dr Rob Kuru is reasonably necessary medical or related treatment pursuant to s 60 of the Workers Compensation Act 1987 as a result of a cervical spine injury sustained by the applicant on 13 May 2023. 2. The respondent to pay the costs of and incidental to C5/6 and C6/7 anterior cervical discectomy and fusion surgery proposed by Dr Rob Kuru in accordance with s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
Rachael Ellen Hull (the applicant) is a 42-year-old woman.
It is not in dispute that, on 13 May 2023, in the course of her employment with Estia Health (the respondent) as an Assistant-in-Nursing, the applicant was assaulted by a nursing home resident which injured her cervical spine and left shoulder (the injury). The respondent accepted liability for the injury.
The applicant made a claim for medical and related expenses pursuant to s 60 the Workers Compensation Act 1987 (1987 Act) in respect of C5/6 and C6/7 anterior cervical discectomy and fusion surgery proposed by Dr Rob Kuru (the surgery).
The respondent’s insurer (the insurer) declined liability for the treatment on the basis that:
(a) the surgery is not reasonably necessary as a result of an injury as required by s 60 of the 1987 Act.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 7 March 2025, seeking compensation pursuant to s 60 of the 1987 Act for and related to the surgery. The respondent lodged a Reply to the ARD (Reply) on 26 March 2025.
At a conciliation/arbitration hearing conducted by MS Teams on 4 June 2025, Mr Dewashish Adhikary, counsel, appeared on behalf of the applicant, instructed by Ms Rachael Abouchrouche of LHD Lawyers. Mr Daniel Stiles, counsel, appeared on behalf of the respondent, instructed by Ms Stephanie Dunn, solicitor of BBW Lawyers.
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.
INTERLOCUTORY ISSUE
At the hearing, on behalf of the respondent, Mr Stiles made application for the matter to be referred to a Medical Assessor for a non-binding assessment. That was opposed by the applicant.
Counsel’s respective submissions were recorded. In summary:
(a) on behalf of the respondent, Mr Stiles submitted that: the Commission has power to make the referral pursuant to s 60(5) of the 1987 Act; there are competing medico-legal opinions; the respondent has concerns as to whether the applicant has exhausted alternative treatment options; the Commission would be assisted in determining the applicant’s claim by a non-binding opinion of an independent Medical Assessor, and
(b) on behalf of the applicant, Mr Adhikary submitted that: the referral is not permitted by Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), in particular s 319 of the 1998 Act; the applicant’s claim for compensation in relation to the surgery was made over one year ago; the respondent has not previously given notice that it seeks a non-binding opinion of an independent Medical Assessor; the Commission should be satisfied on the basis of the medical evidence including persuasive evidence of Dr Kuru that the surgery is reasonably necessary treatment as a result of the injury; the proceedings should be determined in the usual way on the basis of the evidence presently before the Commission.
I refused the application for the matter to be referred to a Medical Assessor for a non-binding assessment pursuant to s 60(5) of the 1987 Act for the following reasons:
(a) I am satisfied that the Commission has power to make the referral by operation of the provisions of s 60(5) of the 1987 Act and s 321(1) of the 1998 Act;
(b) the objects set out in s 4 of the Personal Injury Commission Act 2020 (the PIC Act) include to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible;
(c) the referral was opposed by the applicant;
(d) the claim for compensation was made over one year ago and the respondent has not previously indicated any intention to seek a further independent medical opinion;
(e) any opinion issued by a Medical Assessor in these circumstances would not be binding on the parties;
(f) there is presently medical evidence before the Commission which would assist the Commission to properly determine the dispute;
(g) in the circumstances, a non-binding medical opinion of a Medical Assessor would not necessarily assist the Commission to determine the dispute;
(h) referral to a Medical Assessor for a non-binding medical opinion would delay the determination of the dispute, and further, and
(i) in the circumstances, I am not satisfied that referral to a Medical Assessor for a non-binding assessment would be consistent with the objects set out in s 4 of the PIC Act, in particular that it would assist to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) whether the surgery is reasonably necessary as a result of the injury as required by s 60 of the 1987 Act.
EVIDENCE
Documentary evidence
By consent, the following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply to ARD and attached documents;
(c) applicant’s Application to Admit Late Documents (AALD) dated 28 May 2025 and attachments (admitted into evidence by consent), and
(d) respondent’s ALAD dated 28 May 2025 and attachments (admitted into evidence by consent).
Oral evidence
No application for cross-examination was made and no oral evidence was given.
Applicant’s evidence
Applicant
The applicant gave evidence by way of two statements.
In a statement dated 6 August 2024, the applicant stated that:
(a) she injured her left shoulder and neck during the course of her employment with the respondent;
(b) the insurer accepted liability for the injury, with a deemed date of injury of 13 May 2023;
(c) as a result of the injury, the applicant suffered significant left-sided neck pain, pain through her left shoulder and tingling sensations down her left arm. The applicant also struggled with debilitating headaches which started in the top of her left shoulder and extended up her left sided neck, into her head and up to her scalp;
(d) the applicant consulted her general practitioner at Forster Tuncurry Medical Centre in relation to the injury who prescribed pain medication and referred the applicant for various investigations and to medical specialists;
(e) the applicant underwent physiotherapy treatment about twice per week, however she did not notice any significant benefit from that treatment and felt that it was flaring up her symptoms significantly. The applicant ultimately stopped the physiotherapy treatment in about August 2023 because the physiotherapist told her he was worried that he might be making her injury worse;
(f) on 10 August 2023, the applicant consulted orthopaedic surgeon Dr Stuart Kennedy in relation to her neck and left shoulder symptoms. Dr Kennedy told the applicant that there was no structural injury in her left shoulder and that therefore the cause of her symptoms was likely cervical spine injury. Dr Kennedy said that there was nothing that he could do in terms of treatment and review and he recommended that the applicant consult a neurologist or neurosurgeon to confirm a spinal injury;
(g) on 16 August 2023, the applicant consulted orthopaedic surgeon Dr Rob Kuru. Dr Kuru told the applicant that her clinical neck issues were caused by the injury and he recommended that she undergo nerve conduction studies;
(h) on 21 September 2023, the applicant again consulted Dr Kuru who reviewed nerve conduction study results and advised the applicant of the benefits and risks of proceeding with the surgery. A request for surgery was denied by the insurer;
(i) the applicant continued to suffer debilitating daily pain symptoms and restriction of movement in her neck which extends into her left shoulder, tingling and burning sensations down her left arm and shooting pains through her left arm up into the top of her shoulder and through the left side of her neck and head. As a result of the pain, the applicant is unable to engage in many domestic and personal activities that she previously enjoyed;
(j) the applicant does not believe that cortisone injections are appropriate for her because she does not want to undergo those repeatedly over the course of her life and she is looking for a more permanent solution, and
(k) the applicant wants to undergo the surgery because Dr Kuru has advised that it will likely improve her pain, range of movement and hopefully assist with her return to full work duties and previous quality of life.
In a statement dated 16 December 2024, the applicant stated that:
(a) an investigation report and images depicted do not show the difficulty, restriction and discomfort that she experienced when she drove to local shops and bought bread;
(b) she continues to suffer from pain in her neck and left shoulder and she takes pain relief medication every day to manage her pain levels and symptoms, and
(c) she worries about the future and how her injuries may affect her if she does not undergo surgery.
Treating medical evidence
Dr Sudipta Sarker, treating general practitioner
In a report dated 4 June 2023, Dr Sarker reported to the insurer on the applicant’s injury. Dr Sarker stated that the applicant had constant pain and reduced range of movement in her left upper limb.
Dr Rob Kuru, spinal surgeon
By report dated 12 June 2024, Dr Kuru stated that:
(a) the applicant reported a history that following the injury, she had developed pain radiating down her arm with global numbness in her hand, neck pain and headaches and that Lyrica pain medication and treatment by a physiotherapist had not been beneficial;
(b) on examination, Dr Kuru found that the applicant was acutely uncomfortable and very reluctant to move her neck, and it was not possible to perform a formal neurological examination due to her pain;
(c) Dr Kuru stated that an MRI Cervical Spine showed C5/6 and lesser C6/7 foraminal stenosis;
(d) Dr Kuru stated that clinically he felt it was possible that the applicant had had an aggravation of degenerative cervical disease with nerve irritation, causing symptoms in the arm. He also considered traction injury to the brachial plexus. He referred the applicant for a nerve conduction study which demonstrated no abnormality of the peripheral nervous system, and
(e) Dr Kuru stated:
“I do regard the proposed treatment in the form of a C5/6, C6/7 anterior cervical discectomy and fusion as reasonably necessary as a result of her work injury. With respect to criteria for reasonable and necessary treatment. The treatment is appropriate and the imaging has demonstrated foraminal stenosis consistent with Ms Hull’s symptoms radiating into her arm. Alternative treatments in the form of time and analgesia have not been effective. Given the persistence of pain and failure to settle surgical treatment is appropriate. The cost of a 2 level anterior cervical discectomy and fusion would be in the region of $35,000 to $40,000. Anterior cervical discectomy and fusion is know, to be an effective treatment for relief of upper limb symptoms caused by nerve root compression in the neck. Anterior cervical discectomy and fusion is accepted common treatment for such pathology.”
By report dated 16 August 2023, Dr Kuru stated that:
(a) since the injury, the applicant had pain radiating down her arm with a global numbness in her hand with pain extending up to her neck and associated headaches;
(b) the applicant was initially treated by a physiotherapist who was trying to get her to do some exercises but she stopped this as it exacerbated her pain and the applicant was taking Lyrica pain medication;
(c) on examination, the applicant was acutely uncomfortable, very reluctant to move her neck, and held her arm supported by her side with her other hand;
(d) an MRI Cervical Spine showed some mild cervical degenerative disease consistent with age, with some C5/6 foraminal stenosis, lesser C6/7 foraminal stenosis and C7/T1 foramen patency;
(e) Dr Kuru stated that it was possible that the applicant’s underlying degenerative disease may be contributing to her presentation, but clinically he expected that her problem may be more from traction injury due to her plexus given the mechanism of injury;
(f) Dr Kuru recommended a nerve conduction study to see if it confirmed that diagnosis, noting that he expected that the nerve conduction study would be normal. Dr Kuru stated that in that case, the next step would be to try some foraminal steroid injections to see if that settled down the applicant’s arm symptoms, and
(g) Dr Kuru stated that in the interim he reassured the applicant that the imaging of her neck and shoulders does not demonstrate any sinister pathology and she was safe to move her neck and arm as she was able. He recommended that she return to the physiotherapist and work hard on getting some movement and strength into her neck and arm.
By report dated 29 September 2023, Dr Kuru stated that:
(a) a nerve conduction study was not suggestive of any peripheral nerve injury;
(b) the applicant continued to have pain in her neck and her shoulder radiating down into her C7 and C8 dermatomes;
(c) Dr Kennedy discussed with the applicant proceeding with a C5/6, C6/7 anterior cervical discectomy and fusion and went through expectations, indications, risks and complications, including but not limited to infection, injury to the carotid neurovascular bundle, trachea and oesophagus, recurrent laryngeal nerve injury, spinal cord injury, nerve root injury, implant subsidence, migration and failure and pseudoarthrosis, and
(d) the applicant understood the risks and was keen to proceed with surgery.
By letter dated 21 September 2023 to the insurer, Dr Kuru stated that:
(a) the applicant had failed non-operative treatment for C6/7 foraminal stenosis, and
(b) he sought approval for her to undergo a C5/6, C6/7 anterior cervical discectomy and fusion.
By report dated 16 January 2024 to the insurer, Dr Kuru responded to the insurer’s questions and stated that:
“1. I would regard a facet joint injection in this case as a complete waste of time and money. I am not sure on what basis Dr Anthony Smith opines that he would have a 70% chance of relieving Ms Hull's symptoms. If he is able to forward any reasonable quality evidence based literature to support that assertion, I would be happy to review it and consider it.
It is certainly reasonable that Ms Hull continue with non-operative treatment. That should consist of isometric exercise program for cervical spine in conjunction with the use of simple analgesics. When I last saw her she had significant symptoms which were not improving for greater than eight weeks and on that basis I felt it was reasonable to consider surgical treatment.
2. The need for Ms Hull's surgery is because a work related injury has aggravated her underlying cervical degenerative disc disease. This is not an unusual situation. I would estimate 98% of cases involving injury at work represent an aggravation of a pre-existing degenerative pathology.
3. Ms Hull does appear to be significantly impaired by her pathology beyond that you would normally expect. This does not mean that she does not have significant symptoms arising from a structural pathology in her neck for which surgery would be appropriate treatment.”
By report dated 12 June 2024, Dr Kuru stated that:
(a) he regarded the surgery as reasonably necessary treatment as a result of the applicant’s injury and diagnosis of aggravation of C5/6, C6/7 degenerative disc disease;
(b) the surgery is appropriate and the imaging has demonstrated foraminal stenosis consistent with the applicant’s symptoms radiating into her arm;
(c) alternative treatments in the form of time and analgesia have not been effective;
(d) given the persistence of pain and failure to settle, surgical treatment is appropriate;
(e) the cost of a two-level anterior cervical discectomy and fusion would be in the region of $35,000 to $40,000;
(f) anterior cervical discectomy and fusion is known to be an effective treatment for relief of upper limb symptoms caused by nerve root compression in the neck, and
(g) anterior cervical discectomy and fusion is accepted common treatment for such pathology.
Dr Stuart Kennedy, orthopaedic surgeon, shoulder and upper extremity surgery
By report dated 10 August 2023, Dr Kennedy stated that:
(a) the applicant reported a history of worsening neck and upper back pain, which radiated down her arm in a neuropathic way and sensation of pins and needles in her arm and shoulder;
(b) on examination, it was difficult to examine the applicant’s spine and shoulder because of the level of pain, however he noted tenderness of the applicant’s cervical spine and thoracic spine on light palpation;
(c) Dr Kennedy noted that MRI of the left shoulder was essentially normal;
(d) Dr Kennedy opined that the applicant was experiencing neuropathic pain in her left shoulder and upper extremity, with no identifiable cause for shoulder specific pain. Dr Kennedy opined that the applicant’s clinical presentation was consistent with neuropathic injury. Dr Kennedy did not believe that the applicant had sustained a significant structural injury to her left shoulder and therefore recommended a conservative approach with pain management and physiotherapy, with no indication for surgery to the left shoulder, and
(e) Dr Kennedy stated that it was possible that the applicant may have injured her spine from the assault and he recommended referral to a neurologist or neurosurgeon to assess spinal injury.
Physiotherapists
An undated report of Shana Nair, physiotherapist, which appears to have been emailed on 29 June 2023 stated that:
(a) the applicant was passive in her recovery and had not booked or engaged in the necessary medical appointments to facilitate a timely or sustainable return to work;
(b) diagnosis remained unclear at that time and that the ultrasound of the applicant’s shoulder demonstrated no abnormality and an MRI Cervical Spine shows degenerative changes that the Nominated Treating Doctor (NTD) had advised did not explain the applicant’s symptoms;
(c) the applicant demonstrated significant pain behaviours in front of the NTD but normal pain behaviours in front of the physiotherapist, and
(d) various agreed actions were noted.
A report of Aaron Eichner, physiotherapist, dated 3 July 2023, stated that the applicant was currently in severe pain, of likely a neurological cause, noting that the ultrasound of the shoulder was normal and the MRI Cervical Spine “shows diffuse changes that would be hard to decide on a diagnosis based on these”.
Investigations
Reports of investigations included:
(a) on 23 April 2023, a Left Shoulder Radiograph was reported to show no abnormality;
(b) on 5 June 2023, an Ultrasound Left Shoulder was reported to show no abnormalities;
(c) on 7 June 2023, an MRI Cervical Spine was reported to show diffuse cervical spondylosis with multilevel foraminal narrowing;
(d) on 19 July 2023, an MRI Left Shoulder was reported as normal apart from mild bursitis of the acromioclavicular joint, and
(e) on 6 September 2023, nerve conduction studies were reported to show no abnormality.
Medical certificates
The applicant’s evidence also included various Certificates of Capacity and medical certificates.
Clinical records
Clinical records of the Forster Tuncurry Medical Centre and the Nabiac Village Medical Centre which recorded various consultations in relation to the injury and included:
(a) the applicant reported ongoing left sided neck pain and left arm pain, and
(b) the applicant reported that physiotherapy increased her pain, and the applicant was reluctant to undergo cortisone injection without recommendation by Dr Kuru.
Surveillance report
A surveillance report dated 27 March 2024 prepared by The Huxley Hill Group reported that surveillance showed the applicant driving and shopping for bread and fuel.
Independent medical evidence
Dr James Bodel, orthopaedic surgeon
Dr Bodel provided an independent medical opinion, qualified by the applicant.
By report dated 16 January 2025, Dr Bodel stated:
(a) Dr Bodel examined the applicant by Telehealth. On examination, Dr Bodel observed a restricted range of neck flexion, extension and rotation in all directions which is most restricted on rotation to the right. Dr Bodel noted an asymmetry of movement and dysmetria with 50% of the expected range on rotation to the right and 80% of the expected range of rotation to the left. Dr Bodel observed a restricted range of shoulder movement in the left shoulder, verified by the use of the goniometer over the video screen;
(b) Dr Bodel stated that having read the investigation report and viewed still shots of the applicant shopping for bread, in his opinion the activities observed were not in conflict with the applicant’s complaint of neck pain and left arm pain;
(c) Dr Bodel opined that the applicant suffered an injury to the neck with at the very lease the aggravation, acceleration, exacerbation and deterioration to the disease process of disc pathology at C5/6 and C6/7 as a result of the injury and that the applicant’s employment was the substantial contributing factor to the injury;
(d) Dr Bodel stated that the applicant’s injuries appeared to be musculoskeletal based and he did not see the need for assessment by any other medical subspecialty at this time;
(e) Dr Bodel stated that the cost for the surgery is $25,000;
(f) Dr Bodel stated that all other conservative approaches had been tried and not been of benefit, and
(g) Dr Bodel stated that he believed that the surgery is reasonably necessary and appropriate in the circumstances. Dr Bodel stated that he tended to agree with Dr Kuru’s recommendation and that there is a good chance and the probable outcome is that the surgery will significantly improve the applicant’s function.
By report dated 27 May 2025, Dr Bodel stated:
“A treatment letter from Dr Robert Kuru was noted on 12 June 2024. He gives very good clear reasoning as to why the anterior cervical decompression and fusion at C5/6 and C6/7 is appropriate and reasonably necessary treatment for the management of her injury. Signed statements from Ms Hull on 06 August 2024 and 16 December 2024 confirmed that she is keen to proceed with the surgery as offered by Dr Kuru and the local doctor's continuation notes are consistent with the ongoing medical management.
Finally, there are other reports of an x-ray that is showing no acute clavicle or proximal humerus fracture and there is mention of the ultrasound, but there is no report of that at present.
I note, therefore, that having read all this material, your inquiries in regard to the reasonably necessary treatment in the form of the anterior cervical decompression and fusion at C5/6 and C6/7 as to whether that is appropriate in this circumstance and arise as a consequence of the workplace injury. I am aware of the earlier episode which is mentioned in my report. I am satisfied, however, that the proposed treatment by Dr Kuru, who is a well-respected spinal surgeon, is reasonably necessary and appropriate for the management of the injury that occurred as a result of the work injury on 13 May 2023. The particular element of that which causally links the surgery to the injury is the traction element of the injury when her arm was twisted and pulled. This has caused the nerve root compression and that is the reason for the decompression and fusion.”
Dr Anthony Smith, orthopaedic surgeon
Dr Smith provided an independent medical opinion, qualified by the insurer.
By report dated 10 November 2023, Dr Smith stated:
(a) on examination, Dr Smith noted that the applicant’s neck movements were limited by pain of one half the expected range in all directions, the right shoulder had normal range of movement but the left shoulder would not move more than 30 degrees in any direction without complaints of pain. Dr Smith noted a loss of sensation in the left upper limb and a global weakness in all movements of the left upper limb, extending from the small muscles of the hand, through to and including left shoulder elevation and rotation of the neck to the left;
(b) in his opinion, the applicant gave a history, considering her symptoms, that was suggestive of a neck problem. There was no radiological evidence of any shoulder problem. Dr Kennedy found the applicant’s left shoulder to be clinically normal, so the cervical spine was the only likely possible source of the applicant’s symptoms. Dr Smith had not seen the radiology. The changes described in the MRI Cervical Spine were within normal limits in the applicant’s age group;
(c) in his opinion, the applicant had a very histrionic presentation and inconsistent presentation and was manufacturing physical signs and she was much better than she made out. applicant was a “very poor surgical candidate”;
(d) any exacerbation of cervical degenerative disease caused by the injury would have resolved on its own accord, with or without treatment, after three months at the most;
(e) from an orthopaedic perspective, the applicant was fit to work with no restrictions, although it may be advisable to avoid repetitive overhead activity;
(f) ordinarily, he would consider that the applicant had not had sufficient nonoperative treatment. Disregarding the applicant’s history presentation, theoretically, she could respond to manipulative physiotherapy with traction undertaken three times a week, for two weeks, perhaps three weeks, augmented with an effective anti-inflammatory medication. Injecting the facet joints on the left-hand side at C5-6 and C6-7 had some seven chances out of ten in providing symptomatic relief for weeks, months or years;
(g) regarding the applicant’s current behaviour, he opined that it was unlikely that any treatment offered would be successful, including operations;
(h) there was nothing remarkable about the MRI findings of the neck, noting that 90 to 95% of all neck symptoms emanate from degenerative pathology at C5-6 and C6-7. The applicant’s degenerative pathology is most marked at those two levels, which is normal in her age group. In the event one was going to do an operation, one would do an anterior interbody fusion at C5-6 and C6-7. She is a very poor surgical candidate and is unlikely to improve. She is manufacturing physical signs, and in my opinion, she is manufacturing symptoms, and
(i) surgical intervention is unlikely to have any effect on the applicant’s current symptomatology and is not indicated.
By report dated 26 May 2025, Dr Smith stated:
(a) he referred to his previous report and examination of the applicant on 31 October 2023 and noted that the applicant had a “consistent presentation”, that that he considered her symptoms emanated from the cervical spine, and her shoulder was unlikely to be producing any symptoms and that she could have had an aggravation to her cervical degenerative disease that was previously asymptomatic, but he would have expected her symptoms to resolve of their own accord within three months, and
(b) referring to his previous report,
“It was my opinion that, theoretically, she had not had sufficient nonoperative treatments regarding her cervical degenerative disease. I suggested some nonoperative treatments that often relieves cervical spine symptoms. Despite an incidence of cervical degenerative disease of 100% in men and women aged 60 and over, only a very small number of men and women have enough symptoms from degenerative disease in the cervical spine to warrant operative intervention. We all get some symptoms from our cervical degenerative disease from time to time. The symptoms are generally amenable to treatment. There is no treatment that always works.
I refer to my letter of 10 November 2023. She had pain in the left arm up to the shoulder and into the neck occurring in the incident of 14 May 2023. Just because a patient does not have neck pain, does not exclude the diagnosis of symptomatic pathology in the cervical spine.”
Submissions
Counsel made detailed oral submissions which were recorded on transcript. I do not propose to recount those submissions in detail. A copy of the recording and transcript will be made available on request.
Both counsel accepted that the principles relevant to whether the surgery is reasonably necessary are those set out in Diab v NRMA Ltd,[1] Roche DP, referring to the decision in Rose v Health Commission (NSW).[2]
[1] [2014] NSWWCCPD 72.
[2] [1986] NSWCC2; (1986) 2 NSWCCR 32.
Both counsel addressed various factual and medical evidence relevant to various matters set out in those decisions.
On behalf of the applicant, Mr Adhikary submitted that having regard to the evidence as a whole, the Commission should be satisfied that a surgery is reasonably necessary as a result of the injury.
On behalf of the respondent, Mr Stiles submitted that having regard to the evidence as a whole, the Commission should be satisfied that a surgery is reasonably necessary as a result of the injury.
I have considered counsel’s submissions in assessing the evidence below.
FINDINGS AND REASONS
The law
Section 60 of the 1987 Act relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
Is the treatment medical or related treatment?
The applicant seeks compensation for the cost of surgery in accordance with the request of the applicant’s treating doctor, Dr Rob Kuru.
I am satisfied that a surgery is “medical or related treatment (other than domestic assistance)” within the meaning of s 60(1)(a) of the 1987 Act.
Is the treatment reasonably necessary?
In Diab v NRMA Ltd,[3] Roche DP, referring to the decision in Rose v Health Commission (NSW),[4] set out the test for determining if medical treatment is reasonably necessary as a result of a work injury:
“The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC2; (1986) 2 NSWCCR 32 (Rose) where his Honour said, at 48A-C:
…
3.Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and tis place in the usual medical armoury of treatments for the particular condition.”
[3] [2014] NSWWCCPD 72.
[4] [1986] NSWCC2; (1986) 2 NSWCCR 32.
Roche DP also noted that the Commission has generally referred to and applied the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service:[5]
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[5] [1997] NSWCC 1; 14 NSWCCR 233.
Roche DP found:
“In the context of s 60 the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(b)the appropriateness of the particular treatment;
(c)the availability of alternative treatment, and its potential effectiveness;
(d)the cost of the treatment;
(e)the actual or potential effectiveness of the treatment, and
(f)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
I will consider each of those elements separately.
The appropriateness of the treatment
It is not in dispute that the applicant has a cervical spine injury.
The various treating and independent medical evidence, including diagnostic imaging, indicates degenerative changes in the applicant’s cervical spine, particularly at the C5/6 and C6/7 levels.
The applicant’s evidence is that, as a result of the injury, she experiences ongoing debilitating daily pain symptoms and restriction of movement in her neck which extends into her left shoulder, tingling and burning sensations down her left arm and shooting pains through her left arm up into the top of her shoulder and through the left side of her neck and head. Further, as a result of the pain, the applicant is unable to engage in many domestic and personal activities that she previously enjoyed.
The applicant’s evidence is that, having been advised of the potential benefits and risks of the surgery, she wishes to undergo the surgery and that she worries about the future and how her injuries may affect her if she does not undergo the surgery.
The applicant’s treating general practitioner, Dr Sudipta Sarker, gave evidence that the applicant experiences constant pain and reduced range of movement in her left upper limb.
That is consistent with various clinical records of the applicant’s treating general practitioners which evidence that the applicant has regularly reported ongoing left sided neck pain and left arm pain. Various medical certificates and Certificates of Capacity evidence that the applicant is unable to work because of the injury.
It is also consistent with the evidence of Dr Kuru who took a history of pain radiating down the applicant’s arm with a global numbness in her hand with pain extending up to her neck and associated headaches since the injury. Dr Kuru also found that on examination, the applicant was acutely uncomfortable, very reluctant to move her neck.
It is similarly consistent with the evidence of Dr Kennedy to took a history of worsening neck and upper back pain, which radiated down the applicant’s arm in a neuropathic way and sensation of pins and needles in her arm and shoulder. Dr Kennedy also found that on examination, it was difficult to examine the applicant’s spine and shoulder because of the level of pain, however he noted tenderness of the applicant’s cervical spine and thoracic spine on light palpation.
I note that there is some evidence which challenges the applicant’s credibility in relation to her reports of ongoing pain since the injury.
In particular, the report of the physiotherapist, Ms Nair, stated in June 2023that the applicant was passive in her recovery and demonstrated significant pain behaviours in front of the NTD but normal pain behaviours in front of the physiotherapist. However that can be contrasted with the report of the physiotherapist, Mr Eichner, in July 2023, which stated that the applicant was currently in severe pain.
Further, independent medical expert, Dr Smith in his initial report dated 10 November 2023, stated the opinion that the applicant had a very histrionic presentation and inconsistent presentation and was manufacturing physical signs and she was much better than she made out.
However, that can be contrasted with Dr Smith’s report later dated 26 May 2025 which stated that the applicant had a “consistent presentation” and that he considered her symptoms emanated from the cervical spine.
I note that independent medical expert Dr Bodel, observed a restricted range and asymmetry of neck movement, although his examination was conducted by video using a goniometer.
The surveillance report showed the applicant shopping for bread and fuel. However, the respondent’s counsel acknowledged, as stated by the applicant, that it does not indicate the difficulty, restriction and discomfort that she experienced in performing those activities. I note that Dr Kuru stated that he had assured the applicant that she was safe to move her neck and arm as she was able.
The respondent’s counsel did not challenge the applicant’s credibility and there was no application for leave to cross-examine the applicant.
Considering the evidence as a whole, I consider that the weight of the evidence supports the applicant’s evidence. On that basis I accept the applicant’s evidence in relation to her ongoing pain and restrictions since the injury.
Accordingly, I accept that as a result of the injury, the applicant experiences ongoing neck and upper back pain, which radiates down the her arm in a neuropathic way and sensation of pins and needles in her arm and shoulder.
Further, I accept that such ongoing pain restricts the applicant from undertaking domestic and personal activities that she previously enjoyed and her ability to work. In that sense, there is a real necessity and it is appropriate that the applicant undergo treatment to relieve her ongoing symptoms.
The cost of the treatment
Dr Kuru estimated cost of a two-level anterior cervical discectomy and fusion to be in the region of $35,000 to $40,000.
I note that the respondent has not taken issue with the estimated cost of the treatment.
The availability of alternative treatment and its potential effectiveness
Potential alternative treatment options identified in the evidence were:
(a) pain relief medication;
(b) physiotherapy treatment, and
(c) facet joint injections.
In relation to pain relief medication, I accept that the applicant continues to experience ongoing pain notwithstanding treatment with pain relief medication. Dr Kuru’s evidence is that alternative treatments in the form of time and analgesia have not been effective.
In relation to physiotherapy treatment, Dr Smith suggested that the applicant undergo manipulative physiotherapy with traction undertaken three times a week, for two weeks, perhaps three weeks, augmented with an effective anti-inflammatory medication. However, the applicant’s evidence is that she underwent physiotherapy treatment about twice per week, however she did not notice any significant benefit from that treatment and felt that it was flaring up her symptoms significantly and that she ultimately ceased physiotherapy out of concern that it may be making her injury worse. I note that is consistent with clinical records of the treating general practitioner and also Dr Kuru’s evidence that the applicant was initially treated by a physiotherapist who was trying to get her to do some exercises but she stopped this as it exacerbated her pain.
In relation to facet joint injections, Dr Smith suggested that injecting the facet joints on the left-hand side at C5/6 and C6/7 had some seven chances out of ten in providing symptomatic relief for weeks, months or years. I note that Dr Smith’s suggestion for such treatment was made in the context that he did not accept that the applicant was manufacturing physical signs and she was much better than she made out. As I have stated above, I accept that the applicant continues to experience pain.
However, Dr Kuru’s evidence was that he would regard a facet joint injection in this case as a complete waste of time and money. Dr Kuru stated that the applicant had failed non-operative treatment for C6/7 foraminal stenosis
In any event, the applicant’s evidence is that she does not believe that cortisone injections are appropriate for her because she does not want to undergo those repeatedly over the course of her life and she is looking for a more permanent solution. The applicant’s evidence in that regard has not been challenged.
Dr Bodel stated that all other conservative approaches had been tried and not been of benefit
Having regard to the evidence as a whole, I prefer and accept the applicant’s evidence that the alternative treatments of pain relief medication and physiotherapy have failed and that she does not want to undergo repeated injections and seeks a more permanent solution. I find Dr Kuru’s evidence particularly persuasive and I prefer and accept his evidence that the applicant has failed non-operative treatment for the injury to her cervical spine. I accept that there are no alternative treatment options that are likely to provide significant and enduring relief to the applicant.
The actual or potential effectiveness of the treatment
As noted by Dr Kuru, on 7 June 2023, an MRI Cervical Spine showed some mild cervical degenerative disease consistent with age, with some C5/6 foraminal stenosis, lesser C6/7 foraminal stenosis and C7/T1 foramen patency. Shoulder imaging did not detect any significant abnormality. A nerve conduction study was not suggestive of any peripheral nerve injury.
Dr Kuru stated that imaging has demonstrated foraminal stenosis consistent with Ms Hull’s symptoms radiating into her arm.
Dr Kuru stated that it was possible that the applicant’s underlying degenerative disease may be contributing to her presentation, but clinically he expected that her problem may be more from traction injury due to her plexus given the mechanism of injury.
On that basis, and the applicant’s enduring pain and restrictions, Dr Kuru recommended the surgery being a two-level anterior cervical discectomy and fusion at levels C5/6 and C6/7.
Dr Kuru stated that anterior cervical discectomy and fusion is known to be an effective treatment for relief of upper limb symptoms caused by nerve root compression in the neck and is accepted common treatment for such pathology.
The acceptance by medical experts of the treatment as being appropriate and likely to be effective
Mr Stiles, counsel for the respondent, made the point that the MRI Cervical Spine does not report nerve root compression. I note that the surgery requested by Dr Kuru is a two-level anterior cervical discectomy and fusion at levels C5/6 and C6/7. However, as noted above, Dr Kuru stated that anterior cervical discectomy and fusion is known to be an effective treatment for relief of upper limb symptoms caused by nerve root compression in the neck and is accepted common treatment for such pathology.
Dr Bodel, independent medical expert qualified by the applicant, opined that the applicant suffered an injury to the neck with, at the very least, the aggravation, acceleration, exacerbation and deterioration to the disease process of disc pathology at C5/6 and C6/7 as a result of the injury and that the applicant’s employment was the substantial contributing factor to the injury.
Dr Bodel stated that he read Dr Kuru’s treatment letter dated 12 June 2024 and acknowledged that Dr Kuru had given “good clear reasoning as to why the anterior cervical decompression and fusion at C5/6 and C6/7 is appropriate and reasonably necessary treatment for the management of [the applicant’s] injury”. Further, Dr Bodel acknowledged that “the proposed treatment by Dr Kuru, who is a well-respected spinal surgeon, is reasonably necessary and appropriate for the management of the injury”. Dr Bodel stated that the particular element which causally links the surgery to the injury is “the traction element of the injury when her arm was twisted and pulled… [which] has caused the nerve root compression and that is the reason for the decompression and fusion”. Dr Bodel expressed the opinion that there is a good chance and the probable outcome is that the surgery will significantly improve the applicant’s function.
In his initial report, Dr Smith, independent medical expert qualified by the respondent, noted that the MRI Cervical Spine showed degenerative pathology which was most marked at the C5/6 and C6/7 levels, which he considered was normal in the applicant’s age group. However, Dr Smith acknowledged that in the event one was going to do an operation, one would do an anterior interbody fusion at C5/6 and C6/7 levels would be appropriate. Dr Smith did not explain his opinion that the applicant was a very poor surgical candidate and was unlikely to improve although it appears to be linked to his opinion that the applicant was manufacturing physical signs and symptoms. As I have stated above, I accept that the applicant experiences ongoing pain and restrictions as a result of the injury.
Dr Smith’s two reports seem to be somewhat inconsistent. In his later report, Dr Smith appeared to be more accepting of the applicant’s reported symptoms, noting that the applicant had a “consistent presentation” and also that the applicant had symptomatic pathology in the cervical spine, although he stated that he would have expected the symptoms to have resolved of their own accord within three months. In his later report, Dr Smith did not repeat his earlier assertion that he considered the applicant to be a poor surgical candidate with a poor surgical outcome. Dr Smith simply asserted that only a very small number of people have enough symptoms from degenerative disease in the cervical spine to warrant intervention.
The medical evidence is somewhat challenging.
However, considering the evidence as a whole, as noted above, I am satisfied that the applicant experiences significant ongoing pain and restrictions as a result of the injury and that there are no viable alternative treatment options available.
I note that both Dr Kuru and Dr Smith recommend the surgery as appropriate to treat the applicant’s symptomatic pathology in her cervical spine which is shown on an MRI Cervical Spine. Dr Smith even appears to acknowledge that the surgery is appropriate to treat the particular pathology where there are symptoms which warrant operative intervention because they are not amenable to alternative treatment.
Having regard to the evidence as a whole and all the matters that I have set out above, I prefer and accept the evidence of the applicant’s treating surgeon, Dr Kuru, and I accept that the surgery is reasonably necessary in all of the circumstances.
Does the need for the treatment arise as a result of a work injury?
I note that there is no dispute as to injury. As noted above, I am satisfied that the applicant experiences significant ongoing pain and restrictions as a result of the injury. On that basis, I accept that the need for the treatment arises as a result of the injury.
CONCLUSION
Having regard to the considerations identified in Diab v NRMA Ltd[6] and Rose v Health Commission (NSW),[7] considering the evidence as a whole and for all of the reasons that I have outlined above, I am satisfied that the surgery is reasonably necessary as a result of the injury and I find accordingly.
[6] [2014] NSWWCCPD 72.
[7] [1986] NSWCC 2; (1986) 2 NSWCCR 32.
In the circumstances, it is appropriate to order the respondent to pay the costs of and incidental to the surgery in accordance with s 60 of the 1987 Act.
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