Jabihullah v Haq Transport Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jabihullah v HAQ Transport Pty Ltd [2021] NSWPIC 454
APPLICANT:	Jabihullah Jabihullah
RESPONDENT:	HAQ Transport Pty Ltd
MEMBER:	Brett Batchelor
DATE OF DECISION:	15 November 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for the cost of surgery pursuant to section 60 of the Workers Compensation Act 1987 Act, in the form of C6/7 anterior cervical discectomy and fusion; the respondent claims that the applicant suffered a soft tissue injury only to his cervical spine, whereas the applicant claims that he suffered an aggravation of the pre-existing C6/7 disc protrusion from which he was suffering; the respondent denies that the surgery claimed is reasonably necessary as a result of the injury claimed by the applicant, or the injury asserted by the respondent; both parties rely on Diab v NRMA Ltd at [88]; Held - finding that the applicant suffered an aggravation of the pre-existing C6/7 disc protrusion from which he was suffering; finding that the surgery proposed by the applicant’s treating neurosurgeon was reasonably necessary as a result of such injury; respondent ordered to pay for the cost of and incidental to such surgery.
DETERMINATIONS MADE:	1. On 19 August 2016 the applicant suffered injury to his cervical spine arising out of or in the course of his employment with the respondent in the form of an aggravation of the pre-existing C6/7 disc protrusion from which he was suffering. 2. The surgery proposed By Dr Darweesh Al Khawaja, namely, C6/7 anterior cervical discectomy and fusion, is reasonably necessary as a result of injury to the cervical spine on 19 August 2016. 3. Pursuant to s 60 of the Workers Compensation Act 1987 the respondent is to pay the cost of and incidental to such surgery.

STATEMENT OF REASONS

BACKGROUND

Jabihullah Jabihullah (the applicant/Mr Jabihullah) claims compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the cost of and incidental to surgery on his cervical spine as a result of injury on 19 August 2018, arising out of or in the course of his employment with HAQ Transport Pty Ltd (the respondent). Mr Jabihullah was employed as a furniture removalist, loading furniture into a truck at a warehouse of a furniture retailer, unloading the truck at the residence of a customer and carrying it into the residence. The furniture was deconstructed and contained in boxes which ranged in weight from 30 kg to
75 kg.

On 19 August 2016 the applicant was assisting the driver of a truck in making a delivery of boxed furniture to a residence in the Newcastle area. He was carrying boxes which made up a wardrobe, and one in particular which weighed about 75 kg. He was carrying this box on his right shoulder through a narrow hallway, and managed to make it to the second floor of the residence when it became caught on a wall. He tried to pull the box through the hallway, but it remained caught on the wall; as he jerked the box, he fell forward with the box falling on top of him. He says that he took the full weight of the box on his neck. He was able to pull the box off him, and noticed that his neck and back were sore.
The applicant was not able to assist with further deliveries on the day of his injury, and did not work thereafter. He saw his general practitioner Dr Mohammed Eftkhar the following day and remained under the care of that doctor and another doctor in the same practice,
Dr Hossain. Dr Eftkhar referred Mr Jabihullah for an MRI scan on his cervical spine on 31 October 2016. The applicant had undergone a CT scan of his cervical spine on 30 October 2015 at the request of Dr Hossain, that is, nine months before the injury of 19 August 2016.

The applicant subsequently came under the care of another general practitioner, Dr Kurdo Saeed, who referred him to Dr Simon McKechnie, neurosurgeon, for an initial consultation on 29 May 2017. Dr McKechnie treated the applicant until about 9 August 2018 when Dr Saeed referred him to see Dr Darweesh Al-Khawaja, neurosurgeon, on 9 August 2018 for a second opinion. Dr Al Khawaja has continued to treat Mr Jabihullah.
On 18 September 2019 the applicant was assessed by Approved Medical Specialist (AMS), Dr Ian L Meakin, orthopaedic surgeon, who issued a medical assessment certificate (MAC) dated 1 October 2019 containing an assessment of 7% whole person impairment (WPI) as a result of the injury to the applicant suffered to his cervical spine on 19 August 2016.
On 28 May 2019 Dr Al Khawaja recommended that Mr Jabihullah have surgical intervention on his neck in the form of fusing the spine at the C6/7 level and freeing the spinal cord. A request was made to the respondent’s insurer, AAI Limited t/as GIO (GIO) for approval for the applicant to undergo a C6/7 anterior discectomy and fusion.
The applicant was independently medically examined at the request of GIO by
Dr Christopher Harrington, orthopaedic surgeon, on 20 May 2019. In a report dated that day, Dr Harrington diagnosed that the applicant had suffered a soft tissue injury to the cervical spine and right shoulder on 19 August 2016, and said that ample time had passed for that work related injury to have settled down. He assessed 0% WPI as a result of injury to the right shoulder, cervical spine and thoracic spine. In a supplementary report dated 13 June 2019, Dr Harrington said that the proposed cervical fusion was not reasonably necessary for a work related condition.
On 26 June 2019 GIO issued to Mr Jabihullah a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) declining liability for the cost of the surgery proposed by Dr Al Khawaja. This denial of liability was confirmed by GIO in a notice dated 3 August 2021 under s 287A of the 1998 Act.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:

(a) is the surgery proposed by Dr Al-Khawaja, namely, C6/7 anterior discectomy and fusion, reasonably necessary as a result of the injury that the applicant suffered to his cervical spine on 19 August 2016?

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

The parties attended a conciliation/arbitration hearing on 3 November 2021 conducted via telephone conference. Mr C Tanner of counsel appeared for the applicant briefed by
Mr D Pena. The applicant attended on a separate line. A Rohingyan interpreter was also in attendance. Mr D Saul of counsel appeared for the respondent briefed by Mr R Orr.
A representative of GIO attended.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attachments, and

(c) Application to Admit Late Documents lodged by the respondent dated 26 October 2021 with report ofDr C Harrington dated 27 September 2021 attached.

Oral Evidence

There was no application to adduce oral evidence or to cross-examine the applicant.

SUBMISSIONS

The submissions of the parties were recorded, a transcript of which can be obtained on request. I will not repeat them in full. In summary they are as follows.

Applicant

The applicant notes that the sole issue in the proceedings is whether the proposed surgery, C6/7 anterior discectomy and fusion proposed by Dr Al Khawaja, is reasonably necessary as a result of injury on 19 August 2016. He also notes that an AMS has found that the injury to his cervical spine resulted in a degree of WPI.

The appellant notes the respondent will focus upon the CT scan of the lumbar spine carried out on 30 October 2015[1], the report of which contained a conclusion that there was a significant left paracentral disc extrusion, which ascends along the dorsal aspect of the C6 vertebral body and results in the compression of the exiting ipsilateral C7 nerve. This finding must be considered along with the fact that the injury of 19 August 2016 was a traumatic episode, and there is no evidence that the applicant was having trouble with his cervical spine before that incident.
[1] ARD p 28, noting that the page references in this Statement of Reasons are to those in the Commissions electronic files.
The applicant draws attention to the clinical notes of Dr Modasser Hossain and
[2] ARD p 55.
Dr Mohammed Eftkhar attached to the ARD[2], noting that on 23 November 2015 Dr Eftekhar recorded that the tingling and numbness in the hands were improving spontaneously, and that on the basis of those clinical notes, there is no evidence of symptoms after October 2015.
The applicant’s case is that he has suffered unremitting symptoms since the injury of
[3] ARD p 32.
[4] ARD p 35.
19 August 2016 and has undergone modalities of treatment without relief of those symptoms, to the point that surgery is now recommended by Dr Al Khawaja. The applicant emphasises the severity of the injury to his neck, and his unchallenged evidence that he did not have pain or problems in his neck prior to 19 August 2016. The appellant draws attention to the treatment he received from Dr Simon McKechnie referred to in reports dated 29 May 2017[3] and 18 September 2017[4]. Dr McKechnie notes that Lyrica has been unhelpful, further treatment options, and a referral for a CT guided left C7 perineural cortisone injection. He says that surgery would be the final option if the injection was unsuccessful.
The applicant notes that Dr Al Khawaja recommended surgery at his second consultation on 28 May 2019[5], fusion at the C6/7 level to free up the spinal cord. Such surgery would give a good chance to help with the applicant’s condition.
[5] ARD p 40.
The applicant notes the finding of Dr Al Khawaja in his report dated 23 February 2021[6], when comparing the CT scan carried out in 2015 with the 2019 MRI scan, that the disc herniation is bigger and more significant on the latest scan. The applicant submits that the injury of 19 August 2016 rendered an asymptomatic condition symptomatic. There is no issue that
[6] ARD p 50.
Mr Jabihullah was engaged in heavy manual labour prior to the injury of that date.
The applicant notes the recommendation of Dr Al Khawaja that the opinion of a neuroradiologist be obtained, and the report of Dr Ronald Shnier dated 12 July 2021 which is unchallenged by any evidence put forward by the respondent. Dr Shnier expresses the opinion that the initial MRI scan following the workplace injury demonstrates increase in size of the herniated disc with an extruded fragment present.
In respect of the reports of Dr Christopher Harrington dated 20 May 2019 and 13 June 2019[7], the applicant submits that while Dr Harrington records a history of the heavy work in which he was engaged in before the injury, he does not make comment upon on the increase in pathology shown on the scans, and that no evidence has been put forward by the respondent in response to that of Dr Shnier. It is therefore unchallenged. Further, it is not apparent that Dr Harrington saw the scans themselves, but the inference from his reports is that he was commenting on the reports of the scans only.
[7] Reply pp 25 and 30.
The applicant submits that while Dr Harrington diagnoses that he has suffered a soft tissue injury in August 2016 and that his condition should have resolved, the fact is that it has not. The applicant has suffered unremitting pain since the injury which has not been relieved by conservative treatment, and submits that the surgery proposed by Dr Al Khawaja is the only option left to relieve that pain. It is not a mere soft tissue injury that has resolved, and there is no evidence that symptoms have resolved.
The applicant refers to the report of Dr Uthum L Dias dated 23 January 2019[8], noting that the doctor diagnoses that he has sustained a persistent aggravation of pre-existing degenerative cervical spondylosis with an associated C6/7 disc protrusion, and associated non-verifiable right upper limb radicular symptomatology, secondary to an acute musculoligamentous strain. This represents a frank incident aggravating an asymptomatic disease condition, and an injury pursuant to s 4(b)(ii) of the 1987 Act. Dr Dias notes at [15] on p 15 of his report that (as) Mr Jabihullah’s cervical spine condition deteriorates, and his radicular symptoms become more localised and persistent, he could become a candidate for cervical spine decompression surgery, and/or cervical spine fusion surgery. The need for such surgery could take place at any time over the next three to five years. That is the stage that he has now reached.
[8] Reply p 7.

Respondent

The respondent does not concede that the CT scan of 30 October 2015 can be compared to an MRI scan. That CT scan was taken only eight months before the injury of 19 August 2016 and poses the question as to what an MRI scan taken at the time of the 2015 CT scan would have shown.

The respondent notes that Dr Harrington had all the documents in respect of the investigation of the applicant’s cervical spine before him, but submits that the 2015 investigation is, to some extent, a “red herring” in that the applicant’s presentation to him on examination on 20 May 2019 is out of proportion to the injury revealed on the scans. The respondent also notes that, although there are no reports in evidence of the applicant’s psychological condition, that is a factor which must be taken into account. Dr Harrington found that Mr Jabihullah exaggerated his condition and described pain behaviour that did not correspond with the radiological studies.
The respondent notes the non-binding finding of the AMS, Dr Ian Meakin, in the MAC dated 1 October 2019[9], the present symptoms, and findings on physical examination recorded therein. The respondent submits that the complaints of the applicant recorded by the AMS are all subjective complaints, not substantiated by objective evidence. The AMS had before him all of the radiological investigations of the applicant’s cervical spine, and records subjective neurological symptoms involving the right thumb, index, middle and ring fingers. There is scanned evidence defining a significant disc lesion at the C6/7 level mainly protruding towards the left, but with the ability to irritate the exiting left and right C7 nerve root noted in two MRI scans in 2017. The latest scan, however, notes this similar pathology but with no convincing right-sided nerve root impingement.
[9] ARD p 42.
In short, the applicant submits that the applicant’s complaints are all subjective, and that objective signs are almost non-existent or minimal.
The respondent refers to the clinical note of the consultation with Dr Modasser Hossain dated 29 October 2015[10] where Mr Jabihullah is recorded as coming in for referral in respect of his cervical spine for a possible cause for the pain, tingling and numbness bilaterally in his hands and fingers. There is no record of a complaint of neck pain recorded. Dr Harrington says that the applicant’s current complaints, recorded by the AMS Dr Meakin, are consistent with the earlier radiology (that is, the 2015 radiology).
[10] ARD p 64.
The respondent submits that because the applicant’s complaints particularly of neck pain, but not only confined to the neck but going into the shoulders, arms, hands and fingers, are so out of proportion to the injury itself and the radiology, one has to be very careful before accepting the recommendation for surgery.
The respondent notes that Dr Harrington, in his report dated 20 May 2019, records the history of the incident of 19 August 2016, and the fact that the applicant said that he did not recall any pain like that in the past. Dr Harrington then refers to the CT of the neck on 30 October 2015, which showed a prolapse at C6/7 possibly causing left sided arm pain. The applicant’s current complaints are on the right side of the neck, whereas the protrusion is on the left side.
The respondent notes that Dr Harrington on his examination of 20 May 2019 did not find any radiculopathy, so the pathology revealed on the 2015 scan is an incidental finding and not consistent with physical assessment. That pathology should not cloud the social assessment of the applicant and inconsistencies between the doctor’s informal observation and clinical presentation of Mr Jabihullah. The respondent relies on Dr Harrington’s diagnosis of a soft tissue injury that, given the timeframe since injury in August 2016, should have resolved.
The respondent submits that surgery is an “extreme proposal” for what appears to be a not very significant injury.
In respect of Dr Harrington’s supplementary report dated 13 June 2019, the respondent, acknowledging the probable typographical error at [2] on the second page thereof (reference to “…pathology at C5/6 …” should be to “C6/7”)[11], submits that the pathology is not work related. The proposed cervical fusion is not reasonably necessary for a work related condition.
[11] Reply p 31.
The respondent submits that Dr McKechnie did not find radiculopathy on his examination of the applicant on 29 May 2017, reported on that day, and in his later report dated 18 September 2017[12] records pain then radiating through both arms, worse on the left side.
[12] ARD p 35.
Dr McKechnie did not advise surgery at that stage.
The respondent notes that the applicant then sought a second opinion from Dr Al Khawaja who on 28 May 2019[13] recorded complaint of bilateral arm pain and numbness and pins and needles which were constant and severe, and C7 radiculopathy on both sides. These were not findings made by Dr Harrington or Dr McKechnie. The respondent again submits that the applicant’s complaints of pain are out of all proportion to the radiology.
[13] ARD p 40.
The respondent relies on the findings and recommendation of Dr Seamus Dalton, rehabilitation physician, who examined the applicant on 7 August 2017, principally in respect of his right shoulder condition[14]. According to an MRI and x-ray of the right shoulder,
[14] Reply p 4.
Dr Dalton found no abnormality of note. He also noted the MRI of the cervical spine which revealed a moderately large left paracentral disc protrusion at C6/7 impinging on the left neural exit canal with some narrowing on the right side with multilevel degenerative changes at other levels. Dr Dalton also noted that the C6/7 protrusion was left-sided whereas the applicant’s symptoms were clearly right-sided. Dr Dalton found no indications for surgery, nor would he recommend any intervention therapy such as CT-guided injections given the discrepancy between his complaints, clinical findings on examination and the radiology.
The respondent does not attack the applicant’s credit, but submits that his perception of pain together with his social situation should be taken into account when determining if the surgery proposed by Dr Al Khawaja is reasonably necessary as a result of the injury of 19 August 2016. The respondent asks, having regard to the continual and subjective complaints of pain, will the surgery alleviate the applicant’s symptoms?
The respondent submits that this is a difficult case having regard to the disparate views of the specialists. On the one hand is the view of Dr Al Khawaja who wants to perform the surgery as opposed to the views of Dr Harrington, Dr Dalton, the qualified view of Dr Dias, the independent medical examiner who examined and reported on the applicant on 23 January 2019, on the issue of surgery, and, to an extent, the view of the general practitioner. The respondent discounts the opinion of Dr Shnier, who while he compared the pre-injury CT scan with the post-injury MRI scan, did not have the benefit of a pre-injury MRI scan.

The respondent relies on the summary of the relevant matters, according to the criteria of reasonableness, given by Roche DP at [88] in Diab v NRMA Ltd[15]. It submits that the proposed surgery is not appropriate in this case, nor is it likely to be effective. Indeed the respondent questions if any physical treatment of the applicant will be effective. The cost of the proposed treatment is a factor to be considered as well as the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
[15] [2014] NSWWCCPD 72 (Diab).
The respondent submits that the final report of Dr Harrington’s dated 27 September 2021 is significant in that it highlights and brings together the respondent’s case, in particular:
(1)    the report of Dr Meakin in the MAC dated 1 October 2019 who identified the subjective neurological symptoms involving the right thumb, index, middle and ring finger, but noted that the latest MRI scan showed no convincing right sided nerve root impingement;
(2)    the report of Dr Dias dated 23 January 2019 who indicated that Mr Jabihullah’s pattern of symptomatology did not correlate with an objective dermatomal distribution, and that there was no objective clinical evidence of cervical radiculopathy noted in his assessment, and
(3)    that while Dr Al Khawaja’s report dated 28 May 2019 had a reference to a nerve conduction study apparently confirming right C6/7 radiculopathy, although he
(Dr Al Khawaja) had not seen the results of that study, Dr Harrington did not identify any evidence of reproducible radiculopathy. Dr Harrington says that if Mr Jabihullah had been symptomatic since his accident in August 2016, one would have expected radiculopathy to have been consistent and identifiable at each assessment.
In conclusion the respondent submits two things, namely that:
(1) the injury suffered by the applicant on 19 August 2016 was not an aggravation of the pre-existing C6/7 protrusion but rather a musculoligamentous type injury, and
(2) even if it is found that there is some injury that is persisting, the surgical treatment proposed is not reasonably necessary as a result of that injury.
The respondent submits that the applicant has not discharged the onus on him to show that the surgery proposed is reasonably necessary as a result of injury on 19 August 2016.

Applicant in response

The applicant submits that the opinion of Dr Harrington should be rejected as he was not in a position to address the distinction in the pathology shown in the initial CT scan in 2015 and the subsequent MRI scan. The applicant submits that it was open to the respondent, having had the benefit of receiving the opinion of Dr Shnier and Dr Al Khawaja as to the comparison of the CT scan and the MRI scan, to tender its own expert opinion from a radiologist supporting its case that the pathology was identical. This was not done, and the applicant has the benefit of the opinion of two specialists who have examined the film and rendered their opinion. Dr Harrington’s opinion therefore does not assist the respondent.

The applicant also notes Dr Harrington’s opinion that the applicant’s condition in the cervical spine has resolved. This overlooks the fact that the AMS, Dr Meakin, has assessed the applicant as having sustained permanent impairment of the cervical spine. Dr Meakin assessed 7% WPI as a result of injury to the cervical spine on 19 August 2016, and made no deduction for previous injuries, pre-existing conditions, or abnormalities. The effects of the injury have therefore not resolved, and there is evidence of a continuing permanent condition consequent upon the subject injury.
In respect of radiculopathy, in the context that his presentation on various occasions resulted in radiculopathy being noted on some occasions and not on others, the applicant draws attention to the report of Dr McKechnie dated 18 September 2017 wherein complaints of persistent pain particularly in the neck radiating then through both arms, worse on the left side, are recorded. This is evidence of an early complaint of radiculopathy. On clinical presentation to Dr Al Khawaja on 28 May 2019 the applicant also explained that he was getting bilateral arm pain and numbness and pins and needles which were constant, and severe radiculopathy on both sides. Thus the treating surgeon accepts radiology as part of the clinical picture.
The applicant rejects the submission that the proposed surgery is an extreme procedure, noting that such a procedure is commonplace. The applicant repeats the submission that he was involved in demanding physical labour when injured, he suffered severe neck pain, and there was clearly a change in the condition of the neck with the injury.
The applicant refers to the clinical notes of Dr Hossain dated 28 and 29 October 2015, in which there is no record of complaints of neck pain. This contrasts with his current complaints of acute symptoms in his neck.
In respect of the matters relevant to the reasonable necessity for treatment referred to in Diab, the applicant submits that:

(1)    according to Dr Al Khawaja, the aim of the surgery is to protect the spinal cord to start with and to give him a chance to improve his symptoms, although this cannot be guaranteed;
(2)    all other treatment has not been successful and he is entitled to the prospect of improvement from the surgery recommended by Dr Al Khawaja;
(3)    the opinion of Dr Dalton, who is not a surgeon, is four years old, in the context that he was referred to that doctor for treatment of his right shoulder, and
(4)    in the final analysis, the question is whether the opinion of Dr Al Khawaja or
Dr Harrington should be accepted, and Dr Harrington’s opinion is fundamentally deficient.

FINDINGS AND REASONS

Injury

I have summarised the submissions of the parties in some detail, together with the medical evidence on which they rely.

The finding of the AMS, Dr Meakin recorded in the MAC dated 1 October 2019 that the applicant has sustained 7% WPI as a result of injury to his cervical spine on 19 August 2016 is conclusively presumed to be correct. Section 326 of the 1998 Act is as follows:
“(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned—
(a)  the degree of permanent impairment of the worker as a result of an injury,
(b)  whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether impairment is permanent,
(e)  whether the degree of permanent impairment is fully ascertainable.
(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”

It is also conclusively presumed to be correct that no proportion of permanent impairment assessed by Dr Meakin is due to any previous injury or pre-existing condition or abnormality. Dr Harrington’s opinion is that the applicant sustained a soft tissue injury only to the cervical spine on 19 August 2016 which has settled down in the ample time that has passed since the date of injury. He does not believe that the pathology at C6/7 is work related. Dr Harrington’s opinion must also be viewed in the context of his finding that Mr Jabihullah sustained 0% WPI s a result of injury on 19 August 2016. In his latest report dated 27 September 2021,
Dr Harrington says that the opinion of Dr Meakin did not change his views regarding surgery and impairment. Nevertheless the parties are bound by the assessment of Dr Meakin in respect of WPI.

Dr Meakin briefly commented on other medical opinions and findings submitted by the parties at [10 c] of the MAC, namely:
(1)    reports of Dr Simon McKechnie, the treating surgeon between 29 May 2017 and 22 June 2018;
(2)    Dr Seamus Dalton in his report dated 7 August 2017;
(3)    the referral of the applicant by Dr K Saeed to Dr McKechnie dated 17 January 2017;
(4)    the “very significant and detailed report” prepared by Dr Uthum Dias on 23 January 2019, and
(5)    report prepared by Dr Tamer Kahil, consultant orthopaedic surgeon, dated 21 February 2017.
All of the reports of these doctors except the last mentioned report of Dr Kahil are in evidence in the current proceedings. Dr Meakin noted that Dr Dias assessed impairment of the cervical spine as consistent with a DRE Category II impairment, adding 2% impairment for activities of daily living. He did, however, make a one-tenth deduction because of the pre-existing degenerative changes. Dr Meakin did not, as in his opinion the applicant was asymptomatic prior to the accident.

This opinion of Dr Meakin correlates with the applicant’s submission that he was asymptomatic until the injury of 19 August 2016 and engaged in very heavy work until that time, notwithstanding that fact that he had undergone a CT scan of his cervical spine on 31 October 2015. This scan revealed the impression of the left paracentral disc protrusion, suspected to be causing impingement of the left C7 nerve root.

The applicant accepts that there was obviously a reason to consult his general practitioner in October 2015 and undergo the CT scan. However, as noted in [48] above, the clinical notes of Dr Hossain dated 28 and 29 October 2015 record no complaints of neck pain. This contrasts with his current complaints of acute symptoms in his neck. These clinical notes are also consistent with the applicant being able to perform heavy manual labour until the injury of 19 August 2016.
Dr Meakin also had before him details of all of the radiological investigations of the applicant’s cervical spine listed at [6] of the MAC. The applicant accepts that on different occasions he has presented to different doctors who recorded differing complaints in respect of radiculopathy. Nevertheless, Mr Jabihullah did present to Dr McKechnie on 18 September 2017 with neck pain radiating through both arms, worse on the left side, and to
Dr Al Khawaja on 28 May 2019 with severe radiculopathy on both sides. On 18 September 2017 Dr McKechnie raised the prospect of surgery as a final option if the CT guided left perineural cortisone injection he recommended was unsuccessful. This was following receipt by the doctor of the MRI scan he ordered on 17 August 2017. The applicant was then referred to Dr Al Khawaja by Dr Saeed for a second opinion.
Dr Meakin in his summary in the MAC notes the subjective neurological symptoms involving the right thumb, index, middle and ring finger on the right side. He says that there is scanned evidence defining a significant disc lesion at the C6/7 level mainly protruding towards the left, but with the ability to irritate the left and right C7 nerve root noted in two MRI scans in 2017. The latest scan, however, noted this similar pathology but with no convincing right sided nerve root impingement. Dr Meakin notes that the applicant remained symptomatic.

Dr Al Khawaja in his report dated 23 February 2021 to the applicant’s solicitors expresses the belief that the CT scan of 2015 showed suspicious disc herniation at C6/7 level, mainly on the left side, and that although it was not wise to compare a CT scan with the MRI, he believes that the latest MRI disc herniation was bigger and more significant. That latest MRI was dated 3 January 2019[16]. Dr Al Khawaja thought that an opinion from a neuroradiologist would be very helpful in that regard.
[16] ARD p 38.
Such an opinion was obtained from Dr Shnier dated 12 July 2021[17]. Dr Shnier was asked to review reports and provide an opinion in terms of radiology provided. He had all of the radiological investigations before him. His opinion is expressed as follows:
“OPINION
1.     There was a pre-existing disc herniation at C6/7. Following the workplace injury on 19 August 2016 there is my opinion an acute extruded disc fragment which causes increased effect on the left side of the cord at the left C7 nerve root sleeve. In keeping with it being acute/subacute is its T2 hyperintense signal. This subsequently partially resorbs but there is still narrowing of the canal as described above.
2.     From the history the patient was asymptomatic prior to the accident. Although the acute extruded disc partially resorbs, as is not uncommon, his symptoms have remained.
3.     I agree with Dr Al-Khawaja’s opinion that the initial MRI scan following the workplace injury demonstrates increase in size of the herniated disc with an extruded fragment being present.”
[17] ARD p 53.

There is no evidence from the respondent commenting on this report of Dr Shnier. Whilst
I appreciate that such evidence is not necessarily essential, with the onus remaining on the applicant to prove on the balance of probabilities that he has suffered the injury he claims to have suffered on 19 August 2016, when it is considered along with other evidence, namely of:

(1)    Dr Al Khawaja, the treating surgeon;
(2)    Dr McKechnie, the former treating surgeon, who on 18 September 2017 recorded complaints of persistent pain particularly in the neck and radiating through both arms, worse on the left side with the pain worsening;
(3)    Dr Dias, who found Mr Jabihullah had sustained:
(1)a persistent aggravation of pre-existing degenerative cervical spondylosis with an associated C6/7 disc protrusion;
(2)associated non-verifiable right upper limb radicular symptomatology, secondary to acute musculoligamentous strain,

and
(3)assessed Mr Jabihullah as having sustained 6% WPI as a result of injury to the cervical spine on 19 August 2016, and

(4) Dr Meakin, the AMS,

I find that the applicant on 19 August 2016 suffered an aggravation of the pre-existing C6/7 protrusion which was apparent on the CT scan dated 30 October 2015. I do not accept the opinion of Dr Harrington that it was a soft tissue injury only.
Surgery

Both Dr McKechnie and Dr Dias raised the prospect of surgery on the applicant’s cervical spine. Dr McKechnie regarded surgery as the final option if an injection was unsuccessful, although there is no evidence that such injection was administered. Dr Dias on 23 January 2019 said that Mr Jabihullah could become a candidate for cervical decompression surgery and/or cervical spine fusion surgery at any time over the course of the following three to five years, which as the applicant submits has partially elapsed. Dr Al Khawaja, although not guaranteeing an improvement in the applicant’s condition, says that there is a good chance for the fusion at the C6/7 level to help his condition.

Dr Seamus Dalton, who assessed Mr Jabihullah on 7 August 2017 principally in respect of his right shoulder condition, saw no indication for surgery. He also did not recommend any intervention or therapy such as CT-guided corticosteroid injections, given the discrepancy between complaints, clinical findings in examination and the radiology.
This discrepancy mentioned by Dr Dalton is emphasised by the respondent, both in respect of the finding of injury and the reasonable necessity for surgery as a result of injury. The respondent submits that the applicant’s complaints are largely subjective and completely at odds with the radiological investigations and presentation to doctors on examination. That may be so, and Dr Dias highlights such discrepancy. Nevertheless, he finds injury and recommends possible surgery.
It is not disputed that the applicant was engaged in very heavy work up until the date of his injury, and that he has suffered significant pain in his neck since that time. His complaints may also be coloured by the difficult social position in which he finds himself. He is in Australia as a refugee from Burma, having arrived by way of Bangladesh by boat, Malaysia by boat, and Indonesia before again embarking on a boat and arriving at Christmas Island. He was there in detention for about a month and eventually arrived in Sydney via Darwin and Melbourne. He now lives in a house with friends. His wife and children remain in a refugee camp in Bangladesh. After a time in Sydney in receipt of Centrelink benefits, he worked for the respondent until the date of his injury. He has not worked since. His presentation to doctors may have been subjective and at times exaggerated. However, I have found that he did suffer a significant injury to his neck on 19 August 2016. Is surgery reasonably necessary as a result of such injury?
The criteria of reasonableness listed by Roche DP at [88] in Diab in the context of s 60 of the 1987 Act include, but are not necessarily limited to, the following:
“(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”
At [89], the Deputy President said:
“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.”
In this case, Mr Jabihullah has endured significant pain in his neck since the date of injury such that he cannot work. He wants to have the surgery to relieve his constant neck pain.
Dr Al Khawaja is of the opinion that the surgery he proposes is appropriate and gives the applicant a good chance of improvement in his symptoms. Dr McKechnie does not express a view on the likely outcome of such surgery, but Dr Dias is of the opinion that the surgery proposed by Dr Al Khawaja is reasonably necessary as a result of the injury. Dr Harrington says that a discectomy and fusion may not make much difference, and that even if he proceeds with surgery, it will not change his capacity for work.

The respondent submits that, having regard to his subjective complaints and personal situation of the applicant, whatever treatment he undergoes will not benefit him. Dr Dalton said in 2017 that Mr Jabihullah should be referred to Guardian Exercise Rehabilitation for a supervised and graded exercise programme to build up his confidence, mobility, and functional tolerances. That has not happened, perhaps nor surprisingly in view of his current personal circumstances. If the respondent’s submissions are accepted, the applicant faces a bleak outlook.
The cost of treatment is of course a factor, and there are surgery cost details attached to the ARD. This must be weighed along with the other factors.
Having regard to the matters I have summarised above, I accept that the surgery proposed by Dr Al Khawaja is reasonably necessary as a result of the injury the applicant suffered to his cervical spine on 19 August 2016. Whatever treatment the applicant has undergone has not improved his symptoms, and the treating neurosurgeon considers the surgery appropriate as does Dr Dias, and by inference and to a lesser extent, does Dr McKechnie.
Dr Harrington does not consider the surgery appropriate in the circumstances in which the applicant finds himself. However I accept the opinions of Dr Al Khawaja and Dr Dias as to the reasonable necessity for surgery in preference to that of Dr Harrington.

SUMMARY

On 19 August 2016 the applicant suffered injury to his cervical spine arising out of or in the course of his employment with the respondent in the form an aggravation of the pre-existing C6/7 disc protrusion from which he was suffering.

The surgery proposed By Dr Darweesh Al Khawaja namely, C6/7 anterior cervical discectomy and fusion, is reasonably necessary as a result of injury to the cervical spine on 19 August 2016.
Pursuant to s 60 of the 1987 Act the respondent is to pay the cost of and incidental to such surgery.

[2021] NSWPIC 454

15 November 2021