Keryakos v Enviro Waste Services Group Pty Ltd
[2025] NSWPIC 466
•9 September 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Keryakos v Enviro Waste Services Group Pty Ltd [2025] NSWPIC 466 |
| APPLICANT: | David Keryakos |
| RESPONDENT: | Enviro Waste Services Group Pty Ltd |
| MEMBER: | Adam Halstead |
| DATE OF DECISION: | 9 September 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; workplace injury to cervical spine; whether medical treatment by way of discectomy and fusion reasonably necessary; section 60; whether radiculopathy and myelopathy present; Held – early signs of radiculopathy present; radiculopathy and myelopathy present at later examination and progressing; sufficient basis for requested surgery found to exist; discectomy and fusion surgery found to be reasonably necessary. |
| DETERMINATIONS MADE: | The Personal Injury Commission determines: 1. The surgery proposed by Dr Anil Nair in his 26 October 2022 letter of request, a C5/6 and C6/7 anterior cervical discectomy and fusion, is reasonably necessary to treat the applicant’s work-related cervical spine condition. 2. The respondent is to pay the costs of that surgical procedure. A brief statement is attached setting out the reasons for the determination of the Commission. |
STATEMENT OF REASONS
BACKGROUND
The applicant, David Keryakos, sustained injury in the course of employment with the respondent, Enviro Waste Services Group Pty Ltd, on 25 June 2021. He claims the cost of medical treatment, specifically surgery, to treat a cervical spine condition arising from that injury. The respondent disputes the claim on the basis the treatment is not reasonably necessary. An Application to Resolve a Dispute (ARD) was lodged by the applicant in the Personal Injury Commission (Commission) on 5 June 2025.
PROCEDURE BEFORE THE COMMISSION
The matter was before the Commission for arbitration hearing on 25 July 2025. The applicant attended and was represented by Ms Compton of counsel, instructed by Mr Kharel from One Law (a solicitor firm). The respondent was represented by Mr Davis of counsel, instructed by Ms Balasubramani from Hicksons Lawyers, and a delegate of its insurer also attended.
The ARD was amended, with the leave of the Commission and by consent, to discontinue the claim for past expenses related to lawn maintenance services. The future medical treatment claimed was also detailed as cervical spine surgery by way of a “C5/6 and C6/7 anterior cervical discectomy and fusion”. It was noted the ARD had earlier been amended at the preliminary conference on 16 July 2025 when the applicant’s claim for past physiotherapy expenses had been discontinued.
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 endeavoured to bring the parties to the dispute to an acceptable settlement and am satisfied that the parties have had sufficient opportunity to explore settlement. They have been unable to reach an agreed resolution of the dispute.
ISSUES FOR DETERMINATION
The issue identified by the parties that requires determination by the Commission is whether it is reasonably necessary for the applicant to receive the proposed cervical spine surgery.
EVIDENCE
The following documents were in evidence, without objection, before the Commission and considered in making this determination:
(a) ARD with attachment of 497 pages, and
(b) Reply with attachment of 105 pages (Reply).
There was no application to call oral evidence or cross-examine any witness at the hearing.
CONSIDERATION, FINDINGS AND REASONS
Section 60 of the Workers Compensation Act 1987 (the 1987 Act) provides that if, as a result of an injury received by a worker, medical or related treatment is reasonably necessary, then the employer is liable to pay the cost. That the applicant injured his cervical spine in a workplace incident on 25 June 2021 is undisputed, whether treatment by way of discectomy and fusion surgery is reasonably necessary is the issue to be resolved.
Applicant’s evidence
The applicant’s statement evidence is that he was injured on 25 June 2021 after slipping on an oily surface, falling and impacting the ground. He thereafter experienced various problems and in response to persisting pain in his right arm and shoulder, investigations were conducted to determine whether the source of the problem may originate in his cervical spine.[1] In relation to this issue, the applicant recounted:[2]
“25. To understand the cause of my ongoing pain, I underwent several scans. In August 2022, an MRI of my neck illustrated serious damage, including worn-out discs and a large bulging disc at C5/6 and C6/7. This explained my neck pain and issues with my arms.
…
27. By December 2022, my neck pain had worsened significantly, prompting a referral to Dr. Anil Nair, a neurosurgeon. Dr Nair recommended anterior cervical decompression and fusion surgery at C5/6 and C6/7 to address the severe spinal cord compression and prevent further deterioration. He explained that the surgery would relieve my cervical radiculopathy.
28. At this time in 2023, the insurance company had not accepted liability for my cervical spine injury, so the surgery was denied. I continued with physiotherapy and paid for the consultations out of my own pocket as the insurer would not pay for the physiotherapy to my cervical spine.
…
33. Given the progression of my symptoms, the most critical proposed treatment is the cervical decompression and fusion surgery, as recommended by Dr Anil Nair, however the insurer has denied this surgery.
…
37. I have attended to all forms of treatment recommended by my treating doctors including conservative and analgesic treatment. None of the treatment has provided me with long term relief.”
[1] ARD p 3 at [24] and [25].
[2] ARD pp 3 to 5.
Dr Anil Nair
The applicant consulted Dr Anil Nair, spinal surgeon, in relation to his cervical spine injury who conducted an examination and identified in his 26 October 2022 report that surgery by way a “C5/6 and C6/7 anterior cervical discectomy and fusion” would be appropriate treatment.[3] A request for that surgery was also prepared by Dr Nair on the same date.
[3] ARD p 451.
After their next consultation on 14 December 2022, Dr Nair reported the applicant having “worsening symptoms of left upper extremity radiculopathy”.[4] Then, on 18 January 2023,
Dr Nair reported the applicant continued to have “upper extremity radicular pain”.[5][4] ARD p 447.
[5] ARD p 446.
In his report of 8 May 2023,[6] Dr Nair reiterated his view that the applicant required a C5/6 and C6/7 anterior cervical discectomy and fusion given there were “symptoms stemming from the cervical spine”. According to Dr Nair, there was “clinical and radiological evidence” for the applicant’s condition and the proposed surgery was “treatment … accepted by a quorum of spinal surgeons”, which was necessary because alternative forms of treatment “have been exhausted”.
[6] ARD p 89.
Dr John Sheehy
The respondent’s insurer qualified Dr John Sheehy, neurosurgeon, to conduct an independent medical examination of the applicant. In his 23 November 2022 report,[7] the specialist noted that while the applicant had “cord compression … at C6/7” he found there was “no C6 or C7 radiculopathy” and “no myelopathic signs or symptoms”. On that basis he considered an “ongoing conservative program would be appropriate” and “not the C5/6 and C6/7 cervical discectomy and fusion proposed by Dr Nair”. It was suggested a “trial of hydrotherapy would be appropriate” with “continuing care under the attention of a Pain Physician”.[8]
[7] ARD p 61.
[8] ARD p 62.
Dr Jonathan Herald
The applicant attended Dr Jonathan Herald, orthopaedic surgeon, for consultation and treatment. It was noted in his 24 January 2023 report,[9] the applicant had “tenderness of the cervical spine” and there was “a positive Spurling’s test to both limbs”. Apparently that suggested cervical radiculopathy because Dr Herald recommended “nerve conduction studies to determine if the pain in his arms is coming from is neck or if he has separate neural impingement for radiculopathic symptoms”. At a subsequent consultation on
29 May 2024, Dr Herald noted the applicant’s “neck pain and radiculopathic symptoms”.[10][9] ARD p 92.
[10] ARD p 367.
Dr James Bodel
The applicant qualified Dr James Bodel, orthopaedic surgeon, to conduct an independent medical examination. In his report dated 16 May 2023[11], the surgery requested by Dr Nair appeared “appropriate” to Dr Bodel, but he noted that Dr Sheehy had identified there were “no definite signs of radiculopathy”. Dr Bodel was “cautious about the recommendation for the surgery” for that reason, however he noted the applicant had “tried a whole variety of other treatment protocols without success” and in those circumstances believed that the surgery was “considered necessary”, which he identified as “acceptable practice”.[12]
[11] ARD p 64.
[12] ARD p 71.
Dr Brett Courtenay
The respondent qualified Dr Brett Courtenay, consultant orthopaedic surgeon, to conduct an independent medical examination of the applicant, which occurred on 25 September 2024. In his report dated 9 October 2024, Dr Courtenay considered the applicant’s “symptoms were mild at best” and so “would not respond well to surgical fusion” that had been “recommended at two levels in his cervical spine”.[13] He considered that surgical intervention would not “make any significant difference” to the applicant[14] and concluded that:[15]
“I do not think the surgery is going to help reduce the problems with his neck. There is osteophyte formation, but I am not convinced there is any evidence of true radiculopathy in that left arm. It is patchy, variable and pains are in different areas, and it has been my experience and observation that unless there is good radiculopathy, the chances of cervical discectomy and fusion in someone who has the range of movement [the applicant] has is going to be ineffective and will further restrict him.”
[13] Reply p 72.
[14] Reply p 73.
[15] Reply p 74.
Dr Shanu Gambhir
Dr Shanu Gambhir, neurosurgeon and spine surgeon, conducted an independent medical examination at the applicant’s request. In his 8 November 2024 report, Dr Gambhir considered there were radicular symptoms that “point towards cervical myelopathy”[16] and noted the applicant was “hyper reflexic” with “bilateral positive Hoffman’s sign[s] … confirming cervical myelopathy”.[17] He opined that:[18]
“Despite conservative treatments, his symptoms have unfortunately progressed to the point that he is now myelopathic.
He experiences constant bilateral cervical radiculopathy and together with cervical myelopathy. This was demonstrated on physical examination as well as radiological evidence of spinal cord compression with signal change within the spinal cord.
In my opinion, given the progression of symptoms in his cervical spine and the development of cervical myelopathy (which he did not suffer from when Dr J Sheehy had examined him), he would require C5/6 and C6/7 anterior cervical decompression and fusion to decompress the spinal cord to stop the progress of his cervical myelopathy.
I would strongly recommend that he follows up with his surgeon Dr Nair for review as his symptoms have progressed. Should he develop any progressive weakness in either his upper limbs or lower limbs, he should present to the Emergency Department for assessment and treatment.”
[16] ARD p 76.
[17] ARD p 77.
[18] ARD p 79.
Addressing the absence of radiculopathy and myelopathy that had earlier been identified by Dr Sheehy, Dr Gambhir considered:[19]
[19] ARD p 81.
“Dr John Sheehy has reported in his letter that Mr Keryakos did not experience signs and symptoms of cervical radiculopathy. Non-surgical management would be appropriate in the absence of radiculopathy and myelopathy with close follow up.
I suspect his symptoms have now progressed, as on my history and examination today, he experienced both cervical radiculopathy and more concerning cervical myelopathy as demonstrated by increased reflexes and positive Hoffman’s sign in both upper limbs.
As mentioned above, given his history and examination findings, he has progression of his disease and signal change within the spinal cord. In my opinion, he should undergo the suggested surgery by Dr Nair. It is reasonable and appropriate.”
And also that:[20]
“I note Dr John Sheehy’s report where he opines that Mr Keryakos did not experience signs and symptoms of cervical radiculopathy.
Non-surgical management would be appropriate in the absence of radiculopathy and myelopathy with close follow up.
I suspect his symptoms have now progressed, as on my history and examination today, he experienced both cervical radiculopathy and more concerning cervical myelopathy as demonstrated by increased reflexes and positive Hoffman’s sign in both upper limbs.
As mentioned earlier, given today’s history and examination findings which is likely due to progression of his disease and signal change within the spinal cord, it is my opinion, he should undergo the suggested surgery by Dr Nair.”
[20] ARD p 83.
Reasonably necessary
The applicant relies on the opinion of his treating orthopaedic surgeon, Dr Nair, that he requires a C5/6 and C6/7 anterior cervical discectomy and fusion to treat the effect of the work-caused injury. Medical expenses pursuant to s 60 of the 1987 Act for that surgery are claimed on the basis it is reasonably necessary to undertake that surgery. It is undisputed the condition arises from work-related injury.
The applicant has the onus to establish, on the balance of probabilities, the provision of surgery is reasonably necessary as treatment for his cervical spine condition. I must have a “a sense of actual persuasion” that the reasonable necessity exists: Nguyen v Cosmopolitan Homes Pty Ltd[21] and Yucel v AAES Pty Ltd t/as Roadtrack.[22]
[21] [2008] NSWCA 246.
[22] [2015] NSWWCCPD 51.
The concept of reasonable necessity of a particular treatment was considered by Roche DP in Diab v NRMA Ltd (Diab).[23] The fundamental question: “is it better that the worker have the treatment or not?” That is, are there reasonable prospects that the worker’s situation will be improved or ameliorated by the treatment. The applicant is not required to prove the requested surgery is absolutely necessary, only that it be reasonably so: Diab.
[23] [2014] NSWWCCPD 72.
In summary, I need to determine whether it is reasonable and preferable for the applicant to have the surgery requested. In making that determination, relevant considerations include the suitability of the treatment, availability of alternative treatment (and the potential effectiveness of those), cost of the proposed treatment, potential effectiveness of the proposed treatment and the acceptance by medical experts of the treatment as being appropriate and likely to be effective: Rose v Health Commission (NSW). [24]
[24] [1986] NSWCC 2 (Rose).
The respondent relies on the reports of Dr Courtenay and Dr Sheehy, who, it is contended, did not consider the proposed surgery was reasonably necessary and questioned the effectiveness, appropriateness and noted treatment alternatives.
It is evident that Dr Sheehy formed his view on the basis the applicant had “no C6 or C7 radiculopathy” and “no myelopathic signs or symptoms”. Other treatment was identified by him as appropriate in the circumstances, a trial of hydrotherapy.
Dr Courtenay thought that the applicant’s “mild symptoms” would not respond well to the proposed treatment, which was in circumstances where he considered there was insufficient evidence of significant radiculopathy. His view was that the applicant may experience further restriction following surgery.
Although he was “cautious”, Dr Bodel considered the proposed surgery to be appropriate where other modes of treatment had not been successful and, despite the absence of “definite signs of radiculopathy” at the time of his examination, it could nonetheless be considered “acceptable practice”. Around the same time, Dr Herald clearly suspected radiculopathy to be present on 24 January 2023, and then noted related symptoms were evident on 29 May 2024.
It is clear though that at the 8 November 2024 consultation with Dr Gambhir, signs of “both cervical radiculopathy and more concerning cervical myelopathy” were present and noted with a degree of apparent disquiet given he thought any further progression would warrant immediate attendance for emergency treatment. Dr Gambhir provided a considered response to the earlier findings of Dr Sheehy (made some two years prior) and explained that there had been progression of the applicant’s condition. The most recent specialist medical examination opinion evidence available in the proceedings is that of Dr Gambhir.
Although Dr Courtenay may have thought the applicant’s symptoms were “mild” and there was not “good radiculopathy”, there were nonetheless evidently signs of it being present at their consultation. By the time the applicant attended the examination with Dr Gambhir a month later, that specialist expressed little doubt the applicant had cervical radiculopathy and myelopathy. The opinions of Dr Courtenay, and Dr Sheehy, were earlier, the later by two years, and both premised on the absence of substantial, or any, symptoms. While
Dr Courtenay assessed the nature of the applicant’s symptoms as not significant, it is noted he did not suggest there were none. By 8 November 2024, they were present to an extent that Dr Gambhir thought was “concerning” in relation to myelopathy. The earlier observations of Dr Herald regarding radiculopathic symptoms were consistent with the “progression of [the applicant’s] disease” as described by Dr Gambhir. I am reasonably satisfied that by November 2024, there was unambiguous evidence of the presence of cervical radiculopathy and cervical myelopathy, both to a substantive degree according to Dr Gambhir.None of the specialists have suggested the proposed surgery was inappropriate treatment for a cervical spine condition of the type experienced by the applicant, the disagreement has been around whether the requisite symptoms were present to warrant such intervention. That is, cervical radiculopathy and cervical myelopathy. Dr Gambhir’s examination leaves little doubt those symptoms were ultimately confirmed as present in November 2024 and were “progressing”.
Conservative alternative treatment, such as the hydrotherapy suggested by Dr Sheehy, was premised upon the lack of radiculopathy, which is a situation that is no longer present.
Dr Courtenay suggested that the proposed surgery may not be effective and might cause further restriction to the applicant, but again that view was clearly expressed in the absence of “good radiculopathy”. The symptom was plainly evident to Dr Gambhir during the following month. That it was not as prevalent at the time of Dr Courtenay’s examination can presumably be explained by the progressive nature of the condition as described by
Dr Gambhir whose opinion on that issue has not been contradicted and is accepted as reasonable.Dr Gambhir has provided detailed reasons about why the treatment proposed by Dr Nair is reasonably necessary. His opinion is not inconsistent with either Dr Courtenay or Dr Sheehy when the later evidence of radiculopathy and myelopathy is taken into account. Other modes of treatment have been tried in the past but failed to relieve the applicant’s symptoms; they are apparently becoming worse. There is no evidence that the applicant’s condition is likely to improve without the proposed surgical intervention and to the contrary, it would appear the condition will further deteriorate. There seems to be a reasonable chance of a successful outcome from the proposed surgery, in that it should stop further progression according to
Dr Gambhir. The reservation expressed by Dr Courtenay about the likelihood of surgery being ineffective were premised on a lack of “good radiculopathy”, which now appears to be present. It has not been disputed that the proposed surgery is an accepted form of treatment. There is no evidence of the requested procedure being cost prohibitive. On balance it would appear better for the applicant to have it than not: Diab
I have weighed the matters identified in Rose and consider the applicant is more likely than not to benefit from the surgery where the relevant considerations also weigh in favour of it proceeding. The evidence supports a finding the proposed treatment is reasonably necessary in the circumstances for the purposes of s 60 of the 1987 Act. Accordingly, the respondent is liable to meet the cost of the surgical treatment as recommended by Dr Nair in his request for surgery letter dated 26 October 2022, that is, a “C5/6 and C6/7 anterior cervical discectomy and fusion”.
SUMMARY
The applicant requires surgical treatment for his work-related cervical spine injury by way of a C5/6 and C6/7 anterior cervical discectomy and fusion. That surgery is reasonably necessary as a result of the injury and the respondent is liable for the cost of the treatment.
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