Jordan v Heidelberg Materials Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jordan v Heidelberg Materials Australia Pty Ltd [2025] NSWPIC 392
APPLICANT:	Yass Jordan
RESPONDENT:	Heidelberg Materials Australia Pty Ltd
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	11 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for section 60 expenses in respect of proposed left C4/C5 cervical foraminotomy; whether the surgery was reasonably necessary as a result of the accepted injury; Held – left C4/C5 cervical foraminotomy 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:	The Commission determines: 1. Respondent to pay the applicant’s s 60 expenses in respect of the treatment proposed by Dr Ganesh Shiva, namely, a left C4/C5 cervical foraminotomy (described as a direct spinal decompression (via a partial or total laminectomy or a partial vertebrectomy), or a posterior spinal release, 1 motion segment) and associated treatment expenses as a result of the injury on 22 November 2022 on production of accounts and/or receipts. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Yass Jordan (the applicant), was employed by Heidelburg Materials Australia Pty Ltd (the respondent) as a truck driver. The respondent was insured by GIO General Limited (the insurer) at all relevant times.
In the course of his employment on 22 November 2022 the applicant slipped on a wet and soapy floor. A further incident occurred on 31 January 2024 when the applicant was pulling a concrete hose from a truck.
The applicant made a claim for compensation on 16 February 2024.
The insurer issued a s 78 Notice dated 8 March 2024 declining the claim for compensation in respect of the injury to neck, back and left shoulder on 22 November 2022.
In a Review Notice dated 28 August 2024, the insurer withdrew the decision of 8 March 2024 and reliance on ss 4, 9A, 4(b), 33, 59 and 60 of the Workers Compensation Act 1987 (1987 Act) as the insurer was satisfied that the applicant had a compensable workplace injury.
The applicant made a claim for medical treatment in relation to a proposed left‑sided C4/C5 foraminotomy (described as a direct spinal decompression (via a partial or total laminectomy or a partial vertebrectomy), or a posterior spinal release, 1 motion segment) and associated expenses recommended by Dr Ganesh Shiva on 30 September 2024. For convenience, I shall refer to the proposed treatment as left‑sided C4/C5 foraminotomy.
The respondent disputed liability in respect of the claim for surgery to the cervical spine in a s 78 notice dated 30 October 2024 and a review notice dated 11 March 2025.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the surgery to the cervical spine, namely a left-sided C4/5 foraminotomy proposed by Dr Shiva, is reasonably necessary (s 60 of the 1987 Act) as a result of the injury to the cervical spine.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conciliation conference and arbitration by audio visual link on
23 July 2025. The applicant was represented by Ms Nicole Compton who was instructed by Ms Hong Liu of Longton Compensation Lawyers. The respondent was represented by Mr Paul Rickard, who was instructed by Ms Danielle Pastor of Moray & Agnew Lawyers. Ms Laura Jones from the insurer also attended the conciliation conference and arbitration.
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.

EVIDENCE
Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    Application to Lodge Additional Documents filed by the applicant on
13 June 2025 and 17 July 2025 and attached documents, and
(d)    Application to Lodge Additional Documents filed by the respondent on
16 July 2025 and attached documents.

Submissions

The submissions of the parties were recorded and I do not propose to repeat each of the arguments of counsel in these reasons. However, the respondent submitted that the proposed treatment for the applicant’s current presentation was “not in line” with the workplace injury as Dr Caroline Tan considered his presentation indicated another neurological lesion. The respondent submitted that having regard to the medical evidence, I would not be satisfied that the applicant had discharged the onus of proof.
The applicant submitted that there was no dispute that the applicant had sustained a work injury to his cervical spine on 22 November 2022 and that the weight of the medical evidence supported a finding that the surgery proposed by Dr Shiva was reasonably necessary as a result of that injury.

FINDINGS AND REASONS

I note that the respondent does not dispute that the applicant sustained an injury to his cervical spine arising out of and in the course of his employment with the respondent.
At the telephone conference on 16 June 2025 the Application to Resolve a Dispute under “cause of injury” was amended by consent to read:
“On or about 22 November 2022, the applicant injured his lumbar spine and left shoulder during the course of his employment. When washing a truck, he slipped and fell on the wet and soapy floor. Following the incident, the applicant continued to experience pain in his left shoulder and lower back.
On or about 31 January 2024, the applicant attempted to pull a concrete hose weighing approximately 20 kg from the truck to hook it up to the tanker. He was not able to complete it due to the weakness of his left shoulder, he exerted more force, he therefore lost balance and fell on his knees, as a result he injured his left shoulder, left bicep, left elbow neck and back.
The applicant alleges that the injuries sustained on 31 January 2024 were a consequence of the ongoing pain and weakness in his left shoulder and lower back, which originated from the injury sustained on 27 November 2022.
Alternatively, the applicant alleges that he developed a gradual onset of disease in the cervical, middle and lumbar spines, left arm, left shoulder due to the ‘nature and conditions’ of his employment involving heavy and repetitive lifting, pulling, cleaning and scrubbing etc.”

Evidence of the applicant

In his statement dated 28 June 2024, the applicant said that he had never suffered any injury to his neck prior to his work injuries with the respondent. He described an incident on
22 November 2022 when he was washing a truck at a worksite and slipped and fell on the wet and soapy floor. He stated that as he fell his left arm overextended and he landed on his back. The applicant stated that he did not make a workers compensation claim as he thought it was “just a muscle strain” and he continued working and performing his usual duties.
The applicant stated that as the pain in his left shoulder and lower back was not subsiding, he consulted his general practitioner, Dr Shamile Hussain, on 4 May 2023.
The applicant stated that he started physiotherapy with Mr Nakhoul regarding the left shoulder and an ultrasound of the left shoulder was undertaken on 30 May 2023. The applicant consulted Dr Chandra Dave, orthopaedic surgeon, in relation to the left shoulder on 23 January 2024.
The applicant stated that on 31 January 2024 he was lifting and pulling a concrete hose weighing approximately 20 kg from the truck but was not able to pull the hose out at the first attempt due to the weakness in his left shoulder. He stated that as he pulled it again using more force, he felt a sharp, burning pain in his left bicep and left elbow and lost balance. He stated that he twisted his neck and back when exerting force. The applicant said that he was taken by ambulance to Belmont District Hospital and discharged later that night.
The applicant stated that he saw Dr Hussain on 1 February 2024, who ordered an ultrasound of the left bicep and arm. He said that after the ultrasound, a diagnosis of a ruptured to the left biceps was made. The applicant said that he underwent an MRI of the neck at Rouse Hill Radiology on 17 March 2024. The applicant stated that in February 2024, Dr Dave performed a repair of his left biceps.
In a statement dated 13 June 2025, the applicant said that he had tried conservative treatment from November 2022 to date and nothing has given him a permanent improvement. He described starting physical therapy from early 2023 and said he did five sessions and then stopped. He stated that physiotherapy has not given him any relief.
The applicant stated that in mid-2024 he received cervical epidural steroid injections in his neck, followed by two spinal injections later that year. He said that he experienced numbness for several hours after each injection.
The applicant stated that since November 2022, he had been taking Voltaren, Nurofen, and Advil as prescribed by Dr Hussain. He said that he had also been taking Amitriptyline on an ongoing basis, as prescribed by Dr Manickam. The applicant said that initially, the medications provided some relief, but over time, he began experiencing side effects such as stomach pain and fatigue.
The applicant stated that since August 2024, he had been undergoing weekly neck massages and physiotherapy exercise sessions but had not experienced any improvement in his condition.
The applicant stated that on 9 August 2024, he saw Dr Shiva, who recommend that he have surgery on his neck. The applicant stated that he was in dire need of this surgery and waiting for it to be approved.
In a statement dated 17 July 2025, the applicant stated that he was experiencing constant pain in his neck that radiated into the left shoulder and arm. He said that he felt pins and needles down to the fingers of the left hand.
The applicant stated that he had undergone two cervical spinal injections, physiotherapy, exercise physiology, psychological support, and multiple types of pain relief medication. He stated that none of these treatments have made a significant difference.
The applicant stated that he currently receives physical therapy treatment in Liverpool once a week and spoke with Mr Mahouchi, psychologist, once a week by phone.
The appellant stated that he used to have one physiotherapy session per week, primarily focused on massage, along with one exercise physiotherapy session. He said he stopped attending the exercise sessions approximately three to four weeks ago due to worsening pain in his neck, which made it increasingly difficult to participate.
The applicant stated that he understood the risks of cervical spine surgery as explained by Dr Shiva. The applicant stated that the pain continued to worsen, his mental health was deteriorating, and he was willing and prepared to proceed with surgery.

Medico – Legal Reports

In a report dated 4 February 2025, Dr Medhat Guirgis, consultant orthopaedic surgeon, noted that the applicant had injured his neck, left arm, and left hip when he slipped and fell while washing a truck on 22 November 2022. Dr Guirgis noted that there was a further injury on
31 January 2024 when the applicant’s left arm gave way and he sustained an injury to the left elbow involving a distal biceps tendon rupture.
Dr Guirgis noted that Dr Dave performed a reconstruction of the ruptured distal biceps on
10 February 2024 and an arthroscopy on the left shoulder on 9 July 2024. Dr Gupta reported that the applicant was referred to Dr Shiva, neurosurgeon, in relation to the slowly, but steadily, worsening left arm radiation of pain, pins and needles and tingling and the worsening weakness in his left shoulder and left arm. Dr Guirgis noted that Dr Shiva diagnosed left C5 radiculopathy and recommended decompression.
On examination of the cervical spine, Dr Guirgis reported:
“Normal cervical lordosis was lost. There was no torticollis deformity. Movements of the cervical spine were as follow: Flexion 30 [N 45]; Extension 20 [N 45]; Right lateral flexion 30 [N 45]; Left lateral flexion 20 [N 45]; right rotation 50 [N 80]; and Left rotation 30 [N 80]. Guarding of the paraspinal collar muscles was demonstrated on exceeding that range. Tenderness was elicited over the C5 and C6 spine and relevant spaces. Tenderness was also elicited over the left > right supraspinous fossa. On the left side there was Grade IV weakness in the shoulder abduction (C5), the wrist extension (C6); and the triceps and wrist flexion, the brachioradialis reflex and the triceps reflex were sluggish; and there was blunting of sensation in the left C6/7 nerve root territory. The brachial plexus provocation test was negative.”
Dr Guirgis expressed the opinion that the slip and fall accident on 22 November 2022 resulted in a cervical spine musculo-ligamentous sprain/strain. Dr Guirgis considered that “the main culprit” in his current presentation was the nature and conditions of his employment since the fall. He expressed the view that the cumulative effects of further micro-musculo-ligamentous strain/sprain of the cervical area of the spine had also triggered and aggravated the effects of underlying asymptomatic age-appropriate degenerative changes. He observed that such changes would render the spine more vulnerable to the effect of the traumatic stresses generated by an accident like the one described and this had resulted in the onset of symptoms and signs of left C5 radiculopathy and irritation of the left C6/7 nerve roots.
Dr Guirgis expressed the view that on the balance of probabilities, the slip in soapy water was the primary traumatic event that precipitated or aggravated cervical spine pathology. He considered that there were subsequent exacerbations caused by his duties as a heavy truck driver involving repetitive loading, climbing, coupling/decoupling hoses, and potentially awkward postures and that these factors would have sustained or exacerbated symptoms in the neck and shoulders over time.
Dr Guirgis noted that the applicant had underlying age-appropriate changes in the cervical spine prior to November 2022, however, he was fully functional and asymptomatic.
Dr Guirgis concluded that the work-related fall and subsequent repetitive loading were the major catalysts in turning a quiescent or mild degenerative state into a symptomatic and disabling radiculopathy.
In relation to the cervical spine surgery proposed by Dr Shiva, Dr Guirgis noted that a posterior cervical decompression approach for left C5 radiculopathy was recommended and that in appropriately selected patients (with confirmed nerve root compression on imaging and clinical correlation), decompression can be effective in relieving radicular pain and preventing further neurological deficits. Dr Guirgis recommended arranging the appropriate electrophysiological tests to the left upper limb to help define which nerve roots are involved and needed rhyzolysis. In terms of the availability of alternative treatment or conservative management, Dr Guirgis noted that physical therapy, cervical epidural steroid injections, nerve root blocks, and medications (analgesics, anti-inflammatories, neuropathic pain agents) had been undertaken and anterior cervical discectomy and fusion (ACDF) may be considered if disc herniation and anterior-based compression are predominant. However, he noted that if the pathology is primarily foraminal stenosis or posterior element compression, a posterior approach may be more suitable.
Dr Guirgis noted that posterior decompression and foraminotomy are recognized and accepted surgical options for cervical radiculopathy, especially if the pathology is predominantly foraminal and posterior-lateral. He stated that most spine surgeons would consider surgical intervention if there is persistent or progressive neurological deficit that fails to respond to conservative measures.
Dr Guirgis commented on Dr Tan’s report of 6 December 2024 in which she raised the possibility of brachial plexus injury contributing to the left shoulder/arm issues, as well as potential C6/7 radicular irritation. He noted that her differential diagnosis included brachial plexus stretch/traction injury at the time of the fall, cervical spine radiculopathy at C5/C6/C7 and residual rotator cuff/biceps pathology. Dr Guirgis stated that it was entirely possible there was a mixed picture. He noted that the physical examination findings did show diminished reflexes and sensory changes consistent with cervical nerve root involvement, but brachial plexus traction injury can co-exist or overlap. However, Dr Guirgis considered that the recent MRI studies showed that the brachial plexus was unremarkable.
Dr Guirgis wrote:
“…there is good reason to believe that cervical decompression could help if confirmatory investigations points [sic] to which nerve root impingement. In my view, the combination of positive imaging for root compression, the clinical presentation of radiculopathy and the results of the appropriate electrophysiological tests would still justify decompression if the main driver were the root-level compression.”
In a report dated 6 December 2024 Dr Caroline Tan, consultant neurosurgeon, noted that the applicant complained of pain in the left side of his neck, left shoulder, front of the left arm and forearm into the middle three digits of left hand. She noted that if he turned his head to the left or tilted it backwards, this caused pain from the neck to the shoulder. She noted that there was some pain in the left shoulder blade but most of the pain was from the neck to left shoulder.
On examination, Dr Tan reported:
“He exhibited moderate restriction of cervical lateral rotation to the left, and mild restriction of cervical lateral rotation to the right. He had a positive Spurling test on the left. Left arm flexion was reduced to 80° and left arm abduction was reduced to 70°. He was unable to place his left hand behind the back and Gerber's lift off test was positive. There was no upper limb muscle wasting, shoulder depression or scapular winging. He was tender over the left upper shoulder, outer upper arm and left side of neck. Upper limb tone was normal. There was mild weakness, particularly of left shoulder abduction, adduction and external rotation, and, to lesser extent, left arm internal rotation and left elbow extension. Left elbow flexion was not tested owing to biceps tendon repair. The right biceps jerk was present and depressed. The left biceps jerk was not tested due to biceps tendon repair. Both triceps jerks were depressed. No finger jerks were elicited. There was no Hoffman sign. He had normal sensation to light touch over the upper limbs.”
Dr Tan reviewed the actual images of the cervical spine MRI scan of 17 February 2024, instead of merely relying on the radiology report, and commented:
“Vertebral alignment is normal. There is preservation of lordosis. The craniocervical junction is normal. The spinal cord has normal internal signal. Owing to facet arthropathy and (to lesser extent) uncovertebral hypertrophy, there are moderately severe right C3, severe right C4, moderately severe left C5, moderate right C6 and bilateral C7 foraminal stenoses. The left C5 nerve looks flattened in its foramen. There is no disc herniation to be seen. There is no spinal canal stenosis.”
Dr Tan considered that the applicant had two injuries, one being a complex injury resulting in pain to the neck and left upper limb, left hip and lower back and the second a left biceps tendon rupture or muscle tear. She noted that his symptoms had increased since the two left shoulder operations. Dr Tan observed that in cases where there may be an injury to the shoulder and cervical spine, it could be difficult to distinguish which symptoms are coming from the shoulder and which are due to the cervical spine or cervical nerves because shoulder functions overlap considerably with cervical nerve functions. She stated that she was limited in her ability to determine the diagnosis or diagnoses because she had not been provided with all the information such as all the radiology reports including the report for the injection he had into his neck.

Dr Tan wrote:
“The diagnoses of the first and more complex injury is not clear to me. He states that he experienced left neck and left upper limb pain with pins and needles down to the hand immediately after the incident which does not fit with a mere C5 radiculopathy because C5 does not supply the hand. He says that the pins and needles that he is experiencing are typically felt in the middle three digits of the left hand which suggests C7 rather than C5 radiculopathy. He does have weakness of left shoulder abduction and external rotation which can result from a C5 deficit but the weakness could also be due to the infraspinatus and biceps muscle/tendon repairs. His complaint of pain down the left upper limb and pins and needles going into digits 2 to 4 of the left hand since the fall do not correlate with the cervical spine MRI findings which do not show any acute pathology that could be expected to cause incapacitating left upper limb pain. I am concerned that given his awkward fall, he could have a brachial plexus injury rather than a C5 nerve injury.”
Dr Tan was of the view that the primary injury was potentially still to be elucidated, as “it does not seem to be just a rotator cuff tear and/or C5 radiculopathy”. She could not recommend any treatment apart from the non-specific treatment the applicant was currently receiving because the primary cause for his left upper limb symptoms was not clear to her. She expressed misgivings about the proposed surgery on his cervical spine noting that the applicant may have a component of left C5 radiculopathy for which the proposed operation would be appropriate but his presentation indicated that he had another neurological lesion. She stated she could not affirm the proposed operation was congruent with a good prognosis for improved functional outcomes.
In a supplementary report dated 15 June 2025, Dr Tan noted that she had been provided with the report of Dr Guirgis dated 4 February 2025. Dr Tan did not, it appears, re-examine the applicant when preparing this further report and this report corrected an earlier report she had written dated 3 May 2025.
Dr Tan noted that in her supplementary report dated 3 May 2025, she had opined that the neck and left shoulder/arm pain could be musculotendinous or post-operative pain. (Dr Tan discussed a number of other diagnoses to other body parts which are not relevant to the matter that requires determination in this case). She stated that having read Dr Guirgis’ report, she maintained her opinion regarding the possible diagnoses. Dr Tan expressed some confusion about Dr Guirgis’ diagnoses. She noted that he initially expressed the view that the applicant suffered a musculoligamentous strain/sprain of the neck but went on to write that the cumulative effect of further micro-musculoligamentous strain/sprain of the cervical area of the spine triggered and aggravated the effects of underlying asymptomatic age-appropriate degenerative changes. Dr Guirgis noted that such changes would render the spine more vulnerable to the effect of the traumatic stresses generated by an accident like the one he described and this had resulted in the onset of symptoms and signs of left C5 radiculopathy and also irritation of the left C6/7 nerve roots. She noted that Dr Guirgis considered that the MRI studies of his brachial plexus were unremarkable “leaving us with diagnosis of cervical radiculopathy”.
Dr Tan noted that Dr Guirgis, although earlier saying that the MRI had ruled out brachial plexus injury, commented towards the end of his report that a brachial plexus injury was not fully excluded.
Dr Tan wrote:
“In all honesty, I do not know the mechanism by which micro-musculoligamentous strain/sprain can trigger and aggravate the effects of underlying cervical spine degeneration, causing a left C5 radiculopathy to emerge. Later, in his exposition on causation Dr Guirguis states that the “critical points” are that there was an acute injury followed by “subsequent exacerbations” that “would have sustained or exacerbated” symptoms in the neck and shoulders (note plural) over time. With all due respect to
Dr Guirguis, I have not seen or heard any literature reports that micro-musculoligamentous strain/sprain of the cervical spine is a recognized phenomenon after a fall onto the left shoulder or left upper limb or left trunk, or that it is an accepted mechanism for aggravating pre-existing cervical spine degeneration.”
Dr Tan considered that according to the history given to her, the applicant had immediate pain down the left upper limb to the hand after the fall. She noted that the applicant said that his left upper limb symptoms worsened after each of the two operations on the left upper limb. She considered that Dr Guirguis’ diagnostic formulation did not fit with the history.
Dr Tan noted that the radiology results did not indicate why he should be suffering from left C6 and C7 radiculopathy. She reported that on her assessment of the cervical spine MRI, there is at most mild left C6 and C7 foraminal stenosis and no compression of the left C6 or C7 nerve roots is apparent. In her earlier report, Dr Tan reported moderate right C6 and bilateral C7 foraminal stenoses and commented that the left C5 nerve looks flattened in its foramen. She did not explain why she had changed her concerning the radiology results
Dr Tan wrote:
“There is no one diagnosis that can explain all of Mr Jordan’s symptoms so it is necessary to entertain more than one but each additional diagnosis must be well supported by evidence. Therefore, I struggle to accept Dr Guirgis’ opinion on causation. We need to be conscious of the well-known weaknesses of the biomedical model in explaining complex pain states. when there are significant psychological and social factors complicating his presentation.”
In terms of the C4/5 foraminotomy surgery as recommended by Dr Shiva, Dr Tan wrote:
“On balance, I have no major objections to a left C4/5 foraminotomy as he does have moderately severe left C5 foraminal stenosis with flattening of the left C5 nerve and I cannot exclude the possibility that part of his clinical presentation is due to left C5 radiculopathy. However, I am not able to say whether the work-fall on 22 November 2022 materially contributed to the need for the proposed cervical spine surgery.”
Dr Tan cautioned that performing electrophysiology (nerve conduction and electromyography studies) was definitely not an appropriate method for diagnosis of radiculopathy or for determining “whether and what surgery” the applicant needs, but it may help to rule out some diagnoses.
Dr Tan concluded that it would require the left C5 nerve to account for most of his symptoms in order for her to form the view that the need for the proposed surgery is materially due to the employment-related fall. She stated that even if she accepted that there was a definite left C5 radiculopathy, it still could not explain the majority of his present symptoms. She noted that as Dr Guirgis found, the applicant has global weakness of the left shoulder with weakness found on movements controlled by C6 and C7 nerve roots, despite no radiological evidence for left C6 and C7 lesions nor any apparent lesion(s) of the left brachial plexus.

Treating doctors’ reports

In a report of an MRI scan of the cervical spine dated 17 February 2024, Dr Samer Ghattas, radiologist, noted a clinical history of left sided neck pains. He wrote:
“At C4/5, there is grade 1 anterolisthesis of C4 on C5 by 1 to 2 mm, with posterior uncovering of the intervertebral disc. There is mild right and severe left facet joint OA. There is minimal central canal stenosis. There is mild right and mild to moderate left
foraminal stenosis.
At C5/6, there is a broad-based posterior uncovertebral disc osteophyte complex eccentric to the right, with moderate right and mild left facet joint OA. There is mild central canal stenosis. There is mild to moderate right and mild left foraminal stenosis.”
Dr Ghattas commented that there were multilevel cervical spondylotic changes as described, with potential multilevel sites of neural irritation. He noted that on the symptomatic left side, there was multilevel foraminal narrowing at C3/4, C4/5, and C5/6 and it would be important to correlate clinically with the dermatomal distribution of any radiculopathy.
Dr Ganesh Shiva, treating neurosurgeon, in a report dated 29 May 2024, noted he had seen the applicant about his work related cervical radiculopathy. Dr Siva noted the following history:
“He was cleaning his truck in November 2022. He then was walking back towards the truck and slipped stretching out on the left side to break his fall. Since that time he has had neck pain radiating into his left shoulder and arm. The pain has persisted and he continued working despite this until January this year when he suffered another injury at work tearing his bicep tendon on the left side. He has tried physiotherapy and analgesia without benefit.”
On examination, Dr Shiva found reduced range of motion in his neck with positive Spurling sign on the left. He noted the applicant had had 4+/5 power in left shoulder abduction and sensation was reduced in the region of the deltoid. He noted that the MRI demonstrated left C5 foraminal stenosis consistent with his symptoms in the work injury as described to him. He recommended a left-sided C5 nerve root injection.
Dr Shiva, in a report dated 9 August 2024, noted that the cortisone provided brief relief.
Dr Shiva stated that the applicant wished to consider surgery in the form of left C4/5 cervical foraminotomy. He stated that he had explained the risks to the applicant who wished to proceed. Dr Siva noted that he had placed the applicant on the public waiting list.
Dr Shiva, in a report dated 30 September 2024, noted that the applicant’s left C5 radiculopathy and symptoms had continued. He considered that the requirement for surgery remained solely the result of the original injury at work. Dr Shiva noted that the applicant had tried all reasonable and necessary alternative treatments and surgery was the appropriate next step. He saw no barriers to recovery and noted that the applicant was well motivated to return to work.
Dr Shiva, in a report dated 30 September 2024 to the insurer set out his estimate of fees for a left C4/C5 cervical foraminotomy (described as a direct spinal decompression (via a partial or total laminectomy or a partial vertebrectomy), or a posterior spinal release, 1 motion segment).
In a report dated 22 October 2024 to the insurer, Dr Shiva noted that since the slip and fall on 22 November 2022, the applicant had neck pain radiating into his left shoulder and arm. He noted that the pain had persisted, and the applicant has tried physiotherapy and analgesia without benefit.
Dr Shiva, in a report dated 30 October 2024, reported that the applicant’s symptoms continued to deteriorate.
Dr Appukutty Manickam, treating rehabilitation medicine physician and pain fellow, in a report dated 16 July 2025, noted that he first saw the applicant in mid 2024 prior to his left C4/5 transforaminal injection on 7 June 2024. He noted that the appellant presented with a primary complaint of severe and chronic pain in his left neck, shoulder, and arm, with associated tingling, numbness, and shooting sensations radiating down his left arm to the index and middle fingers, consistent with a left-sided cervical radiculopathy.
Dr Manickam made a diagnosis of chronic left-sided neck pain, with discogenic and facet joint arthropathy contributions, as evidenced by MRI findings and left cervical radiculopathy (clinically C6/7, with significant pathology at C4/5 on imaging). He stated that his treatment plan has focused on multidisciplinary pain management, pharmacological management, patient education and lifestyle modification.
Dr Manickam considered that the applicant had a pre-existing, and likely symptomatic, condition from his 2022 injury, and the incident on 31 January 2024 was the precipitating event that tipped him from a manageable state into a severe, intractable chronic pain syndrome requiring extensive medical intervention, including multiple procedures and proposed surgery.
In terms of causation, Dr Manickam was of the view that the slip and fall on 22 November 2022 resulted in injury to his left shoulder and neck and the forceful pulling motion described on 31 January 2024 directly stressed the cervical spine and left shoulder girdle. He noted that the MRI of the cervical spine showed degenerative changes (osteoarthritis, listhesis) that would have been present prior to the 2024 work injury. Dr Manickam considered that the forceful pulling action on 31 January 2024 clearly served to aggravate and exacerbate his underlying, pre-existing cervical pathology and the deterioration was permanent.
Dr Manickam considered that the goal of current and future treatment is management and functional optimisation, not a curative outcome.
In relation to the proposed surgery by Dr Ganesh Shiva, Dr Manickam noted that the MRI of the cervical spine dated 17 February 2024 demonstrated severe left facet joint osteoarthritis and mild to moderate left foraminal stenosis at the C4/5 level. He commented that this anatomical finding correlated with his left-sided symptoms and therefore, surgical decompression had the potential to be effective in reducing the radicular component of his pain (i.e., the shooting pain, tingling, and numbness in his arm and fingers).
Dr Manickam did note that given the chronicity of his pain, the surgery was unlikely to resolve his neck pain entirely and the primary potential benefit would be a reduction in arm symptoms.
In regard to the availability of alternative treatment, Dr Manickam reported that alternative treatments have been trialled, including targeted physiotherapy, oral analgesics (NSAIDs, opioids), and neuropathic modulators (Amitriptyline). He noted that a diagnostic/therapeutic left C4/5 transforaminal steroid injection provided only two days of relief, suggesting that inflammation may be a minor component or that the pathology is too advanced for injection therapy alone.
Dr Manickam noted that ACDF or foraminotomy were standard, widely accepted neurosurgical procedures for the treatment of cervical radiculopathy that is correlated with imaging findings and has failed to respond to a comprehensive course of conservative management. He stated that it was not considered experimental.
Dr Manickam concluded that the need for the proposed surgery was causally related to the workplace injury which significantly aggravated his pre-existing, underlying cervical pathology. He noted that this aggravation led to a severe and persistent radiculopathy that has since failed to respond to non-operative treatments, including physiotherapy, medication, and a targeted injection. Dr Manickam stated that the proposed surgery is a direct attempt to treat the specific anatomical lesion (foraminal stenosis at C4/5) that is generating the radicular symptoms exacerbated by the work injury and therefore, the surgery is a necessary and reasonable treatment arising from the consequences of the workplace injury.
Dr Shamile Hussain, treating general practitioner, in a referral to Dr Shiva dated
24 February 2024 wrote:
“Injury Date: 22/11/2022
Injury: left shoulder rotator cuff injury & tear, left shoulder anchor lesion left, left neck referred pain -upper back
…
Mechanism of Injury: repetitive overhead work -washing truck-22/11/23 felt left shoulder neck pains persisting since 22/11/23
re severe changes on mri c spine with clinical significance severe pain in the neck and referred to shoulders /arm
enclosed c spine mri
shows; right foraminal stenosis causing irritation of several c spine nerve roots.”
In a report dated 26 May 2025, Mr Edmond Vuong, treating physiotherapist, noted he first saw the applicant on 5 July 2023 on which occasion the applicant had complained of symptoms including cervical spine pain for seven to eight months following a work injury in November 2022. In respect of the proposed surgery by Dr Shiva, Mr Vuong wrote:
“From a physiotherapist point of view, a foraminotomy is an option if the symptoms radiate down the arm and past the elbow and if conservative management is unable to yield a positive outcome. In Mr Jordan’s case, the symptoms extend past the elbow and conservative management has failed. Therefore Mr Jordan is a candidate for cervical spine surgery (C4/C5 foramintomy). Therefore surgery is considered cost effective.”
Mr Vuong noted that alternative treatment includes physiotherapy management with a combination of manual therapy and exercise therapy and the applicant had exhausted all alternate treatment options with nil positive outcome. Mr Vuong stated that cervical spine surgery was a widely accepted practice. He stated that evidence-based literature recommends surgery when all conservative management fails and made evident a positive outcome with most cervical spine surgeries. Mr Vuong stated that completion of cervical spine surgery should not factor in the left shoulder as they were two separate injuries that are treated differently.

Discussion

The matter to be determined is whether the surgery proposed by Dr Shiva, namely, a left C4/C5 cervical foraminotomy (described as a direct spinal decompression (via a partial or total laminectomy or a partial vertebrectomy), or a posterior spinal release, 1 motion segment) was reasonably necessary as a result of the injury to the cervical spine on
22 November 2022.
In Kooragang Cement Pty Ltd v Bates (1994) 35NSWLR 452 (Kooragang), Kirby P stated [at 462E]:
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”

Further, his Honour stated at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or In The High Court in Comcare v Martin (2016) HCA 43(Martin) considered the extent to which one can rely on a ‘common sense approach’. In Martin the High Court stated at [42]:
‘Causation in a legal context is always purposive. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose. It has been said more than once in this Court that it is doubtful whether there is any ‘common sense’ approach to causation which can provide a useful, still less universal, legal norm.”

In Martin the High Court referenced its decision in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) HCA 26, wherein it was stated:
“[96] Santow JA also emphasised that this question of causality was not at large or to be answered by ‘common sense’ alone; rather, the starting point is to identify the purpose to which the question is directed. Those propositions should be accepted. The following may be added.
[97] First, in March v Stramare (E&MH) Pty Ltd (1991) HCA 12, McHugh J doubted whether there is any consistent ‘commonsense notion of what constitutes a ‘cause’, and added:
‘Indeed, I suspect that what common sense would not see as a cause in a non-litigious context will frequently be seen as a cause, according to common sense notions, in a litigious context. This is particularly so in many cases where expert evidence is called to explain a connexion between an act or omission and the occurrence of damage. In these cases, the educative effect of the expert evidence makes an appeal to common sense notions of causation largely meaningless or produces findings concerning causation which would often not be made by an ordinary person uninstructed by the expert evidence.’”
However, as I understand it, Kirby P in Kooragang when referring to applying “common sense” was not suggesting it be applied “at large” or that issues were to be determined or answered by "common sense" alone, instead of by a careful analysis of the evidence.
In Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49, Roche DP at [57] and [58] said:
“57. Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28at [25] and [27]; 237 CLR 656. The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
58.Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796, that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40] - [55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716.”
A condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
The applicant only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40] – [55]). That is, he has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).
The respondent did not dispute that the applicant had sustained injury to the cervical spine on 22 November 2022. The respondent submits that I could not be satisfied the proposed treatment was reasonably necessary as a result of the work injury.
Dr Hussian referred the applicant to Dr Shiva on 24 February 2024. In this referral,
Dr Hussain noted that the applicant had left shoulder and neck pain persisting since
22 November 2022. Dr Hussain referred to severe changes on the MRI of the cervical spine with “clinical significance” and severe pain in the neck and referred to shoulders /arm.
Dr Hussain considered that the scan showed: “right foraminal stenosis causing irritation of several C spine nerve roots.”
Dr Shiva, in a report dated 29 May 2024, noted that since the fall in November 2022 the applicant had neck pain radiating into his left shoulder and arm, which had persisted. He noted that physiotherapy and analgesia had been tried without benefit. On examination
Dr Shiva found reduced range of motion in his neck with positive Spurling sign on the left. He noted the applicant had had 4+/5 power in left shoulder abduction and sensation was reduced in the region of the deltoid. He noted that the MRI demonstrated left C5 foraminal stenosis consistent with his symptoms in the work injury as described to him. He recommended a left-sided C5 nerve root injection.
On 9 August 2024, Dr Shiva noted that the cortisone provided brief relief. Dr Siva stated that the applicant wished to consider surgery in the form of left C4/5 cervical foraminotomy. On 30 October 2024, Dr Shiva noted that he had seen the applicant regarding his ongoing work related cervical radiculopathy. He reported that the applicant’s symptoms continued to deteriorate.
On 16 July 2025, Dr Manickam noted that he had first seen the applicant in mid-2024 prior to his left C4/5 transforaminal injection on 7 June 2024. He noted that the appellant presented with a primary complaint of severe and chronic pain in his left neck, and described associated tingling, numbness, and shooting sensations radiating down his left arm to the index and middle fingers, consistent with a left-sided cervical radiculopathy. Dr Manickam made a diagnosis of chronic left-sided neck pain, with discogenic and facet joint arthropathy contributions, as evidenced by MRI findings and left cervical radiculopathy (clinically C6/7, with significant pathology at C4/5 on imaging). Dr Manickam considered that the applicant had a pre-existing, and likely symptomatic, condition from his 2022 injury, and the incident on 31 January 2024 “tipped him from a manageable state into a severe, intractable chronic pain syndrome” requiring extensive medical intervention, including the proposed surgery.
On 4 February 2025, Dr Guirgis noted that the applicant had injured his neck, left arm, and left hip on 22 November 2022 and there was a further injury on 31 January 2024 when the applicant’s left arm gave way, and he sustained a distal biceps tendon rupture.
Dr Guirgis opined that the accident on 22 November 2022 resulted in a cervical spine musculo-ligamentous sprain/strain, and the cumulative effects of further micro-musculo-ligamentous strain/sprain of the cervical spine due to the nature and conditions of employment had also triggered and aggravated the effects of underlying asymptomatic age-appropriate degenerative changes. He observed that such changes would render the spine more vulnerable to the effect of the traumatic stresses generated by an accident like the one described and this had resulted in the onset of symptoms and signs of left C5 radiculopathy and irritation of the left C6/7 nerve roots. Dr Guirgis noted the possibility of an injury to the brachial plexus but noted that the MRI studies of his brachial plexus were unremarkable leaving a diagnosis of cervical radiculopathy.
On 6 December 2024, Dr Tan noted that the applicant had presented with a neck injury following a workplace incident on 22 November 2022 and had subsequently experience pain in his neck and left shoulder. Dr Tan observed that in cases where there may be an injury to the shoulder and cervical spine, it could be difficult to distinguish which symptoms are coming from the shoulder and which are due to the cervical spine or cervical nerves. She expressed the view that the diagnoses of the first and more complex injury, the injury to the neck, left upper limb, left hip and lower back, was not clear. She reported that the applicant stated that he experienced left neck and left upper limb pain with pins and needles down to the hand immediately after the incident which does not fit with a mere C5 radiculopathy because C5 does not supply the hand. However, a review of her report, especially the section under the heading “History”, reveals that there was no account of left upper limb pain with pins and needles down to the hand immediately after the incident. Dr Tan was also concerned that given his awkward fall, he could have a brachial plexus injury rather than a C5 nerve injury.
Dr Tan was of the view that the primary injury was potentially still to be elucidated, as “it does not seem to be just a rotator cuff tear and/or C5 radiculopathy”. She could not recommend any treatment apart from the non-specific treatment the applicant was currently receiving because the primary cause for his left upper limb symptoms was not clear to her and she had misgivings about the proposed surgery to the cervical spine, because the applicant’s presentation indicated that he had another neurological lesion.
In a supplementary report dated 15 June 2025, it appears that Dr Tan did not re-examine the applicant when preparing this further report and that this report corrected an earlier report that Dr Tan had written dated 3 May 2025. Dr Tan noted that in her report of 3 May 2025, she had opined that the neck and left shoulder/arm pain could be musculotendinous or post-operative pain. She maintained her opinion regarding the possible diagnoses and expressed some confusion about Dr Guirguis’ diagnoses. She noted Dr Guirgis initially expressed the view that the applicant suffered a musculoligamentous strain/sprain of the neck but went on to write that the cumulative effect of further micro-musculoligamentous strain/sprain of the cervical area of the spine triggered and aggravated the effects of underlying asymptomatic age-appropriate degenerative changes. She noted that Dr Guirgis considered that the MRI studies of his brachial plexus were unremarkable “leaving us with diagnosis of cervical radiculopathy”. Dr Tan noted that Dr Guirgis, although initially saying that the MRI had ruled out brachial plexus injury, commented towards the end of his report that a brachial plexus injury was not fully excluded.
Dr Tan stated that she did not know the mechanism by which micro-musculoligamentous strain/sprain can trigger and aggravate the effects of underlying cervical spine degeneration, causing a left C5 radiculopathy to emerge. Dr Tan stated that she had not seen or heard any literature reports that micro-musculoligamentous strain/sprain of the cervical spine is a recognized phenomenon after a fall onto the left shoulder or left upper limb or left trunk, or that it is an accepted mechanism for aggravating pre-existing cervical spine degeneration.
Dr Tan considered that according to the history given to her, the applicant had immediate pain down the left upper limb to the hand after the fall. She noted that the applicant said that his left upper limb symptoms worsened after each of the two operations on the left upper limb. She considered that Dr Guirguis’ diagnostic formulation did not fit with this history.
In her report of 15 June 2025, Dr Tan noted that the radiology results did not indicate why he should be suffering from left C6 and C7 radiculopathy. She reported that on her assessment of the cervical spine MRI by Dr Gattas, there is at most mild left C6 and C7 foraminal stenosis and no compression of the left C6 or C7 nerve roots is apparent. However, in her earlier report dated 6 December 2024, Dr Tan reported that the MRI showed moderate right C6 and bilateral C7 foraminal stenoses and commented that the left C5 nerve looks flattened in its foramen. She did not explain why she had changed her opinion concerning the degree of that foraminal stenosis shown in the same MRI scan.
Dr Tan was of the view that no one diagnosis could explain all of the applicant’s symptoms but she struggled to accept Dr Guirguis’ opinion on causation and referred to significant psychological and social factors complicating presentation.
The respondent submits that Dr Tan considered that the applicant’s presentation indicates another neurological lesion. However, the brachial plexus injury was not evident on the MRI scan of the brachial plexus. Dr Tan did identify other potential causes for the pain as possible muscular tenderness or post operative pain. She did not explain why muscular tenderness or post operative pain would have continued to date and not resolved. Dr Tan made no other diagnosis in terms of any other neurological lesion.
Dr Tan considered it problematic that Dr Guirgis had made more than a few diagnoses required to explain the appellant’s presentation. In my view, the appellant had injured a number of different body parts and it was not unreasonable for Dr Guirgis to make more than a few diagnoses.
Dr Tan did not consider in any real detail the opinion of the treating neurosurgeon, Dr Shiva. Dr Tan only saw the applicant on one occasion while Dr Shiva has seen the applicant on a number of occasions and had the benefit of observing the outcome of treatment provided to date. Dr Shivaa has consistently made a diagnosis of a left C5 foraminal stenosis consistent with his symptoms in the work injury as described to him by the applicant. Dr Shiva, in my view, was better placed to assess the applicant’s cervical spine condition and to form an opinion as to the causation and the treatment required for it. It is also significant in my view that Dr Shiva took a history in May 2024 of neck pain radiating to the left shoulder and arm (with no reference to the hand or fingers) after the fall in November 2022. This is different to Dr Tan’s history taken in December 2024 of pain radiating into left upper limb pain with pins and needles down to the hand immediately after the incident.
I prefer the opinions expressed by Dr Shiva, Dr Guirgis, Dr Manickam and Dr Hussain to the opinion of Dr Tan. Dr Tan, in any event, does not exclude the possibility that part of his clinical presentation is due to left C5 radiculopathy. Further, she merely stated she was not able to say whether the fall on 22 November 2022 materially contributed to the need for the proposed cervical spine surgery.
I am satisfied that the fall on 22 November 2022 was a material cause of the need for the proposed surgery. I am satisfied that the weight of the medical evidence as set out above supports this finding.
The next matter to determine is whether the surgery proposed by Dr Shiva, namely, a left‑sided C6/C7 foraminotomy, on 1 May 2019 is reasonably necessary as a result of the injury on 22 November 2022.
For medical treatment to qualify as “reasonably necessary” it must be appropriate, including in the context of mitigating the effects of any injury to cure, alleviate, sustain the status quo, or to negate and stem progressive deterioration. It can be a question of degree to which treatments effectively alleviate injury symptoms and address pain management. There is a line of cases consistent with this analysis including Rose v Health Commission (NSW) (Rose) [1986] 2 NSWCCR 32.
Burke J in Rose (at pages 47-49) set out some general principles in relation to the issue of whether a particular regimen was medical treatment and whether it was reasonably necessary:
“1.    Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.     However, though falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the party seeking to do so). If is shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purpose of the Act.
3.     Any necessity for relevant treatment results from injury where its purpose and potential effect is to alleviate the consequences of the 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 its place in the usual medical armoury of treatments for this particular condition.”
The matters to be considered in a s 60 claim include the matters noted by Burke CCJ in Rose (supra) namely:
·        the appropriateness of the particular treatment;
·        the availability of alternative treatment, and its potential effectiveness;
·        the cost of the treatment;
·        the actual or potential effectiveness of the treatment, and
·        the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
In Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) Roche DP observed at [89] that:
“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…
[105] …on its own, a reduction in pain after the particular treatment does not necessarily ‘meet’ the test of reasonably necessary in section 60, it is a factor that can be considered in determining that issue. More importantly, it should be considered in light of the expert evidence and relevant history of the development of the symptoms…”
The treating neurosurgeon, Dr Shiva in a report dated 9 August 2024, noted that he had seen the applicant in relation to his ongoing left C5 radiculopathy. Dr Shiva noted that the cortisone provided brief relief and the applicant wished to consider surgery in the form of left C4/5 cervical foraminotomy. He stated that he had explained the risks to the applicant who wished to proceed. Dr Siva noted that he had placed the applicant on the public waiting list. In a report dated 30 September 2024, Dr Shiva noted that he had seen the applicant regarding his left C5 radiculopathy and symptoms have continued. Dr Shiva noted that the applicant had tried all reasonable and necessary alternative treatments, and surgery was the appropriate next step. He saw no barriers to recovery and noted that the applicant was well motivated to return to work.
Dr Manickam, treating rehabilitation medicine physician, noted that the MRI of the cervical spine dated 17 February 2024 demonstrated severe left facet joint osteoarthritis and mild to moderate left foraminal stenosis at the C4/5 level. He commented that this anatomical finding correlated with his left-sided symptoms and therefore, surgical decompression had the potential to be effective in reducing the radicular component of his pain (i.e., the shooting pain, tingling, and numbness in his arm and fingers).
I accept that Dr Manickam did note that given the chronicity of the applicant’s pain, the surgery was unlikely to resolve his neck pain entirely and the primary potential benefit would be a reduction in arm symptoms. Regarding the availability of alternative treatment,
Dr Manickam reported that alternative treatments have been trialled, including targeted physiotherapy, oral analgesics (NSAIDs, opioids), and neuropathic modulators (Amitriptyline). He noted that a diagnostic/therapeutic left C4/5 transforaminal steroid injection provided only two days of relief, suggesting that inflammation may be a minor component or that the pathology is too advanced for injection therapy alone.

Dr Manickam noted that ACDF or foraminotomy were standard, widely accepted neurosurgical procedures for the treatment of cervical radiculopathy that is correlated with imaging findings and has failed to respond to a comprehensive course of conservative management. He stated that it was not considered experimental.
Dr Manickam concluded that the aggravation of the applicant’s pre-existing, underlying cervical pathology which led to a severe and persistent radiculopathy had failed to respond to non-operative treatments, including physiotherapy, medication, and a targeted injection.
Dr Manickam stated that the proposed surgery is a direct attempt to treat the specific anatomical lesion (foraminal stenosis at C4/5) that is generating the radicular symptoms exacerbated by the work injury and therefore, the surgery is a necessary and reasonable treatment arising from the consequences of the workplace injury.
In regard to the cervical spine surgery proposed by Dr Shiva, Dr Guirgis noted that a posterior cervical decompression approach for left C5 radiculopathy was recommended by Dr Shiva and that in appropriately selected patients (with confirmed nerve root compression on imaging and clinical correlation), decompression can be effective in relieving radicular pain and preventing further neurological deficits. It appears that Dr Guirgis was mistaken in his reading of Dr Shiva’s proposed treatment as a posterior cervical decompression approach when in fact Dr Shiva proposed an anterior cervical decompression.
In terms of the availability of alternative treatment or conservative management, Dr Guirgis noted that physical therapy, cervical epidural steroid injections, nerve root blocks, and medications (analgesics, anti-inflammatories, neuropathic pain agents) had been undertaken and anterior cervical decompression (ACDF) may be considered if disc herniation and anterior-based compression are predominant. However, he noted that if the pathology is primarily foraminal stenosis or posterior element compression, a posterior approach may be more suitable.
Dr Guirgis noted that posterior decompression and foraminotomy are recognized and accepted surgical options for cervical radiculopathy, especially if the pathology is predominantly foraminal and posterior-lateral. He stated that most spine surgeons would consider surgical intervention if there was persistent or progressive neurological deficit that fails to respond to conservative measures.
Dr Tan had “no major objections” to a left C4/5 foraminotomy as she stated that the applicant has moderately severe left C5 foraminal stenosis with flattening of the left C5 nerve and she could not exclude the possibility that part of his clinical presentation is due to left C5 radiculopathy. Dr Tan cautioned that performing electrophysiology (nerve conduction and electromyography studies) was definitely not an appropriate method for diagnosis of radiculopathy or for determining whether and what surgery the applicant needs, but electrophysiology may help to rule out some diagnoses.
In a statement dated 17 July 2025, the applicant stated that he was experiencing constant pain in his neck that radiated into the left shoulder and arm. He said that he felt pins and needles down to the fingers of the left hand. The applicant stated that he had undergone two cervical spinal injections, physiotherapy, exercise physiology, psychological support, and multiple types of pain relief medication. He stated that none of these treatments have made a significant difference. The appellant stated that he used to have one physiotherapy session per week, primarily focused on massage, along with one exercise physiotherapy session. He said he stopped attending the exercise sessions approximately three to four weeks ago due to worsening pain in his neck, which made it increasingly difficult to participate.
The applicant stated that he understood the risks of cervical spine surgery as explained by Dr Shiva. The applicant stated that the pain continued to worsen, his mental health was deteriorating, and he was willing and prepared to proceed with surgery.
Both Dr Tan and Dr Shiva found that the applicant had a positive Spurling test on the left. A positive Spurling test indicates cervical radiculopathy, meaning nerve root compression in the neck, which can cause pain, numbness, or tingling in the neck, shoulder, or arm.
Dr Tan had “no major objections” to a left C4/5 foraminotomy as she stated that the applicant has moderately severe left C5 foraminal stenosis with flattening of the left C5 nerve and she could not exclude the possibility that part of his clinical presentation is due to left C5 radiculopathy. Drs Shiva, Guirgis and Manickam all express the opinion that the proposed decompression surgery is appropriate treatment for the applicant’s symptoms, although
Dr Guirgis was under the impression that a posterior approach had been recommended.
I accept that Dr Tan’s comments of psychological factors in the applicant’s presentation, but I am not persuaded that these factors should preclude appropriate and necessary treatment. Dr Tan also was of the view that there was no abnormal pain behaviour in her assessment of the applicant.
While Dr Guirgis and Dr Manickam express different views as to the particular causative factors, there is no dispute that the applicant sustained an injury to the cervical spine in his employment with the respondent. A real issue in this matter is whether the purpose and potential effect of the relevant treatment, namely, the left C4/C5 cervical foraminotomy, is to alleviate the consequences of the injury.
I accept that Dr Guirgis recommended a different surgical procedure in that he expressed the opinion that a posterior cervical decompression approach for left C5 radiculopathy was recommended. However, Dr Guirgis noted that ACDF may be considered if disc herniation and anterior-based compression were predominant. However, he noted that if the pathology is primarily foraminal stenosis or posterior element compression, a posterior approach may be more suitable. I accept that there is some difference between the form of cervical decompression recommended, which concerns whether a posterior or anterior approach should be taken. Dr Manickam expressed the view that the proposed surgery was appropriate treatment and reasonably necessary. The treating neurosurgeon, Dr Shiva, recommended left-sided C4/5 cervical foraminotomy. All of these doctors accept that a cervical decompression is reasonably necessary and, in my view, the question of whether the surgery should involve an anterior or posterior approach is best left to the clinical judgment of the treating neurosurgeon in circumstances where there is support for either approach.
I am satisfied that the applicant has exhausted all alternative treatment. He has had two cervical spinal injections, physiotherapy, exercise physiology, psychological support, and multiple types of pain relief medication. I accept his evidence that none of these treatments have made a significant difference to his condition.
I am satisfied that the proposed left‑sided C4/C5 foraminotomy is an appropriate form of treatment and accepted by medical experts as being appropriate and likely to be effective. Although the cost is not insignificant, it has the potential to alleviate the radicular component of the pain that the applicant experiences and therefore improve his functioning.
I am satisfied that the proposed left-sided C4/C5 cervical foraminotomy is a widely accepted neurosurgical procedure for the treatment of cervical radiculopathy that is correlated with imaging findings and has failed to respond to a comprehensive course of conservative management.
The applicant sustained an injury to his cervical spine on 22 November 2022. The weight of the medical evidence supports a finding that the injury to the neck on 22 November 2022 made a material contribution to the need for a left-sided C4/C5 cervical foraminotomy (direct spinal decompression (via a partial or total laminectomy or a partial vertebrectomy), or a posterior spinal release, 1 motion segment) proposed by Dr Shiva. I find that the proposed medical treatment is reasonably necessary as a result of the injuries on 22 November 2022.
I order that the respondent pay the applicant’s s 60 expenses in respect of the treatment proposed by Dr Ganesh Shiva, namely, a left C4/C5 cervical foraminotomy (direct spinal decompression (via a partial or total laminectomy or a partial vertebrectomy), or a posterior spinal release, 1 motion segment) and associated treatment expenses as a result of the injury on 22 November 2022 on production of accounts and/or receipts.

[2025] NSWPIC 392

11 August 2025