Leonardi v Moran Australia (Residential Aged Care) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Leonardi v Moran Australia (Residential Aged Care) Pty Ltd [2023] NSWPIC 369
APPLICANT:	Frank Leonardi
RESPONDENT:	Moran Australia (Residential Aged Care) Pty Ltd
Member:	John Turner
DATE OF DECISION:	25 July 2023
CATCHWORDS:	WORKERS COMPENSATION Workers Compensation Act 1987; injury to the lumbar spine; liability for proposed lumbar spine surgery disputed; section 4; section 60; Rose v Health Commission (NSW), Diab v NRMA Limited, and Murphy v Allity Management Services Pty Ltd considered; Held – within the meaning of section 60 the L4/5 discectomy and L5/S1 foraminotomy surgery as recommended by Dr Vanessa Perotti is reasonably necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent on 8 March 2021.
determinations made:	The Commission determines: 1. Within the meaning of s 60 of the Workers Compensation Act 1987 the L4/5 discectomy and L5/S1 foraminotomy surgery as recommended by Dr Vanessa Perotti is reasonably necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent on 8 March 2021. The Commission orders: 2. The respondent is to pay pursuant to s 60 of the Workers Compensation Act 1987 the costs of and ancillary to the L4/5 discectomy and L5/S1 foraminotomy surgery as recommended by Dr Vanessa Perotti.

STATEMENT OF REASONS

BACKGROUND

Frank Leonardi, the applicant, was employed by Moran Australia (Residential Aged Care) Pty Limited, the respondent as a bus driver and resident leisure and lifestyle assistant. The applicant appears to have commenced employment with the respondent in or about February/March 2019 having completed an application for employment on 11 February 2019.
Pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) the applicant seeks the payment of the costs of L4/5 discectomy and L5/S1 foraminotomy surgery as recommended by Dr Vanessa Perotti, neurosurgeon.
The applicant sustained injury to his lumbar spine whilst in the course of his employment with the respondent on 8 March 2021 when he stepped backwards from a bus which he had parked, lost his balance and jarred his back.
The applicant had suffered a previous injury to his low back on 24 April 2018 when he slipped in a workshop whilst in the course of his employment with Castle Hill Hyundai. The applicant had also suffered injury to his low back prior to 24 April 2018.

ISSUE FOR DETERMINATION

The following issue are in dispute:
(a) that the claimed surgery and related treatment is reasonably necessary as a result of an injury as required by s 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
22 May 2023. Mr Jim Jobson, counsel, instructed by Mr Angelo Andresakis, appeared for the applicant, who was present. Mr Fraser Doak, counsel, appeared for the respondent, instructed by Mr Will Murphy. 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 Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    applicant’s Application to Admit Late Documents (AALD) signed 14 March 2023 and attached documents, and
(d)    respondent’s AALD’s signed 16 May 2023 and 26 May 2023.
The respondent did not oppose the admission into evidence of the documents attached to the applicant’s AALD signed 14 March 2023. The applicant did not oppose the admission into evidence of the documents attached to the respondent’s AALD’s signed 16 May 2023 and
26 May 2023. As those documents appeared to be potentially relevant to the issues in dispute between the parties those documents were admitted into evidence.
A brief summary of the evidence follows.

Oral evidence

Neither party sought leave to adduce oral evidence.

Applicant’s statements

The applicant has provided a statement made 20 December 2022. It is the applicant’s evidence that on 8 March 2021, whilst in the course of his employment with the respondent, he had parked a bus and was stepping backwards from the bus with the intention of stepping onto a 30cm high wall. He missed the wall and as a result lost his balance and started to fall backwards. He managed to stop falling but in doing so badly jarred his back and developed acute back pain within a few hours.
The applicant has provided a further statement dated 15 February 2023. It is the applicant’s evidence that he sustained an injury to his lower back on 24 April 2018 whilst working for Castle Hill Hyundai when he slipped on spilt oil. He sought medical attention, and an X-ray was performed of his lumbar spine. He received some workers compensation payments and subsequently ceased employment with Castle Hill Hyundai and then obtained employment with the respondent.
It is the applicant’s evidence that following the subject incident on 8 March 2021 he kept working that day but as the day progressed his pain increased.

Application for employment

On 11 February 2019 the applicant completed an application for employment with the respondent. In respect to questions as to whether he had any previous or current workers compensation claims the applicant answered no. He also denied having any medical history that would affect his employment.

Treating medical evidence

The clinical notes of the Rouse Hill Town Medical and Dental Centre for the period
7 April 2009 to 4 April 2023 are in evidence (the general practitioner (GP) notes). The applicant attended on various GP’s at that practice.
On 26 July 2012 the applicant attended on the GP, Dr Tim Schindler, complaining of neck pain at which time a history was taken that the applicant had been involved in a rear end collision that day.
On 28 July 2012 the applicant attended on Dr Schindler complaining of neck and lower back pain. Dr Schindler referred the applicant for physiotherapy. The referral records that the applicant had suffered a whiplash type injury with a “small element of low back discomfort”.
On 22 October 2012 the applicant attended on Dr Schindler with complaints in respect to his neck, thoracic spine and lumbar spine. The applicant was referred for a CT scan of his lumbar spine.
On 14 December 2012 and 10 May 2013, the applicant attended on Dr Schindler with neck and back complaints.
On 13 May 2013 Dr Corey Cunningham, sports and exercise medicine physician, reported to Dr Brian Hsu, spinal surgeon, with a history of the applicant having sustained a whiplash injury to his neck and thoracic spine on 26 July 2012 when he was involved in a rear end motor vehicle collision. The doctor noted that the applicant complained of lumbar back pain which had been present for about two months.
On 7 June 2013 the applicant attended on Dr Schindler complaining of lower back pain with difficulty sitting for long periods. On the same day Dr Schindler provided a letter of referral to Dynamic physio which noted that the applicant had been complaining of neck and low back pain.
On 17 July 2013 Dr Cunningham reported to Dr Hsu that the applicant was continuing to experience lumbar pain and on 13 November 2013 that he was continuing to experience constant lumbar back pain.
A letter of referral by Dr Schindler to Brendan Fogarty at Dynamic physio dated
3 August 2013 instructed that the applicant required ongoing physiotherapy to manage neck and low back pain.
On 5 August 2013 and 15 October 2013, the applicant attended on Dr Schindler with neck and back pain.
On 19 April 2014 Dr Schindler observed that the applicant required a referral to a specialist for his neck and back.
Dr Schindler in a letter to AAMI dated 31 May 2014 confirmed that the applicant required physiotherapy for the treatment of his neck and back.
On 30 November 2014 the applicant attended on the GP, Dr Kiran Sidu, complaining of a lot of neck and back pain and being unable to sit for a long period of time. The applicant again attended on Dr Sidu on 13 December 2014 and 28 December 2014 complaining of neck and back pain.
On 21 November 2015 the applicant attended on Dr Schindler complaining that his neck and back were playing up.
On 6 May 2016 the applicant attended on Dr Schindler complaining of low back pain radiating to his left leg. The applicant next attended on Dr Schindler on 9 May 2016 with lumbar spine problems but no radiation. A referral was made on 9 May 2016 for an X-ray of the lumbar spine.
On 9 May 2016 Dr Lesley North reported on the X-ray of the lumbar spine observing osteoarthritis in the facet joints, a grade 1 spondylolisthesis at the lumbosacral level, possible underlying bilateral pars interarticular defects, a few millimetres retrolisthesis of L4 on L5 and a more marked retrolisthesis of L3 on L4, moderate narrowing of the L3/4 disc with marginal anterior osteophytes, early narrowing of the L4/5 and L5/S1 discs and some degenerative sclerosis of the margins of the sacroiliac joints.
Between 10 May 2016 and 24 April 2018 the applicant continued to attend on the Rouse Hill Town Medical and Dental Centre however the GP notes contain no complaints in respect to the lumbar spine. There are also no other contemporaneous medical records during the said period evidencing any complaints in respect to the lumbar spine.
On 25 April 2018 the applicant attended on the GP, Dr Swe, with a history of a fall at work. The clinical note from the attendance does not record the nature of any injuries sustained in the fall however the applicant was referred for a CT scan of the lumbar spine, prescribed pain relief in the form of Panadeine Forte tablets and issued with an initial Workcover certificate. On 2 June 2018 Dr Swe issued a Workcover certificate recording in the clinical note of the attendance “still work normal duty” and on 21 June 2018 Dr Swe issued a Workcover certificate noting in the clinical record of the attendance “all are continue full time with - as tolerated”.
On 24 August 2018 the applicant attended on Dr Swe who issued a Workcover progress certificate and recorded in the clinical note of the attendance “usual work cover for back pain (same job fulltime all are work as tolerated”.
On 30 August 2018 the applicant presented to Dr Swe complaining of back pain.
On 18 September 2018 the applicant presented to the GP, Dr Nigel Hawkins, complaining of lower back pain which went from one side to the other. Dr Hawkins took a history of the applicant having injured his back at work on 24 April 2018 when he slipped. Sitting on a stool seemed to aggravate the back pain. On 18 September 2018 Dr Hawkins referred the applicant to Body Focus Physio and Massage for physiotherapy and chiropractic treatment.
On 3 October 2018 the applicant presented to Dr Swe complaining of ongoing back pain.
On 19 October 2018 Dr Swe participated in a case conference and issued a Workcover certificate noting in the clinical record of the attendance “full duty with M/M tolerated”. Dr Swe also referred the applicant to Healthy Work Option on 19 October 2018 advising that the applicant had work related back pain.
On 14 November 2018 the applicant reported to Dr Swe that he had resigned from his employment due to back pain and being unable to work more than eight hours a day.
On 17 November 2018 Dr Swe issued a Workcover certificate noting in the clinical record of the attendance that all “are as tolerated 8 hour for 5/day job”.
On 24 November 2018 the applicant presented to Dr Swe complaining of back pain.
On 12 January 2019 the applicant presented to Dr Schindler who recorded “Fell over at work – back has been playing up”. The applicant complained of low back pain radiating to his left leg.
On 16 January 2019 Dr Mark Craddock reported on an X-ray of the lumbar spine. The doctor noted a clinical history of low back pain radiating to the left leg. The doctor observed mild thoracolumbar scoliosis to the left with associated right-sided narrowing of the T12/L1 disc space. The doctor observed that the other disc spaces appeared reasonable except for the presence of left sided narrowing at the L4/5 level.
On 24 January 2019 the applicant attended on Dr Swe at which time he was upset about a Workcover paper the doctor had written as the applicant appeared to complain that he always mentioned about back pain.
On 25 February 2019 Dr Schindler noted that an X-ray of the lumbar spine showed a disc prolapse.
On 30 March 2019 Dr Schindler referred the applicant to Mr John Cice for ongoing management of his lower back issues.
On 31 May 2019, 5 July 2019 and 30 August 2019 the applicant attended on Dr Schindler obtaining Workcover certificates. However, the clinical notes of the attendances contain no reference to the applicant’s back condition.
On 25 October 2019 the applicant attended on Dr Schindler for an update certificate and referral to a chiropractor. A provisional diagnosis of lumbar disc prolapse was made. On
25 October 2019 Dr Schindler referred the applicant back to Mr John Cice due to ongoing back pain.
On 13 December 2019 Dr Schindler again referred the applicant to Mr John Cice for ongoing management of his back pain.
On 7 February 2020 the applicant presented to Dr Schindler with left leg and low back pain. Dr Schindler made a provisional diagnosis of lumbar disc prolapse and the applicant was referred for a CT scan of the lumbar spine.
On 7 February 2020 Dr Truong commented on a CT scan of the lumbar spine. The doctor noted a clinical history of low back pain radiating to the left leg. The doctor observed a mild scoliosis convex to the left and a grade 1 spondylytic spondylolisthesis of L5 on S1, multilevel mild to moderate degenerative disc disease and facet joint osteoarthritis, left posterolateral disc protrusions and endplate osteophytes causing severe left L4/L5 and left L5/S1 foraminal stenosis and impingement of the emerging L4 and L5 nerve roots.
On 6 March 2020 the applicant presented to Dr Schindler complaining of ongoing back pain. Dr Schindler made a provisional diagnosis of low back strain. On the same day the doctor referred the applicant to Mr Cice for ongoing management of low back pain.
On 25 April 2020 the applicant presented to the GP, Dr Mm Nazmul Hossan, who noted that the applicant was under workers compensation, that his condition remained the same and that he was seeing a chiropractor. A certificate of capacity appears to have been issued.
On 29 May 2020 the applicant presented to Dr Schindler with no change in his condition.
From 30 May 2020 to 12 February 2021 the treating medical evidence, including the GP notes, contain no reference to the back condition or to workers compensation.
On 13 February 2021 the applicant attends on Dr Schindler for reasons other than his back condition. However, at that time he was referred back to John and Angela Cice. The clinical record for the attendance makes no reference to the back condition and does not provide any indication of the reason for the referral. The letter of referral dated 13 February 2021 notes that the applicant is being referred due to back pain.
On 9 March 2021, the day after the subject work-related injury, the applicant attended on
Dr Schindler complaining of lower back and left leg pain and wanting pain relief. The doctor prescribed the applicant Panadeine Forte.
The applicant next attended on his GP on 11 March 2021 when he attended on Dr Schindler due to back pain. The applicant was referred for a CT scan of the lumbar spine as well as a CT guided injection to the lumbar spine.
On 11 March 2021 Dr Minh Truong reported on a CT scan of the lumbar spine observing severe left L5/S1 foraminal stenosis with flattening of the emerging left L5 nerve root, moderate left L4/L5 foraminal stenosis with irritation of the emerging left L4 nerve root.
On 12 March 2021 the applicant presented to Dr Schindler who noted that the left leg pain had improved and who took a history that the applicant had stepped out of a bus at work and injured his back which the doctor noted was an exacerbation of an old injury. The applicant was prescribed Osteomol and Paracetamol and issued a certificate of capacity.
The applicant next presented to Dr Schindler on 13 March 2021 complaining that his pain had gone to the bottom of his leg. He then presented to Dr Schindler on 15 March 2021 at which time the doctor noted that the applicant’s left leg pain was not settling and provided a prescription for Panadeine Forte. On 18 March 2021 the applicant had improved but wanted a referral for an MRI.
On 23 March 2021 Dr Schindler referred the applicant for physiotherapy to Momentum Physio and on 25 March 2021 Dr Schindler provided a further prescription for Panadeine Forte.
On 26 March 2021 an MRI was performed of the lumbar spine by Blacktown and Mt Druitt Hospitals Medical Imaging Department which is reported as displaying lumbar spondylosis with disc changes, likely impingement of the L5 nerve root at the lateral recess, neuroforaminal exit narrowing with likely abutment / impingement of the exiting left L3, L4 and L5 nerve roots and facet joint pathology.
Following the MRI the applicant attended on Dr Schindler in respect to his back condition on 27 March 2021 and 1 April 2021. On 27 March Dr Schindler referred the applicant to
Dr Parkinson and on 1 April 2021 a further prescription for Panadeine Forte was provided.
On 12 April 2021 Dr Parkinson, neurosurgeon, reported to Dr Schindler. Dr Parkinson noted that following the subject fall at work the applicant had suffered with pain radiating into the left paraspinal region, trochanteric region, lateral thigh and anterolateral shin with concurrent paraesthesia in a similar distribution. There had been limited improvement with physiotherapy.
Dr Parkinson is of the opinion that the applicant requires decompression of the left L4 and L5 nerve roots which the doctor planned to do by microdiscectomy using a minimally invasive approach.
On 15 April 2021 Dr Schindler advised the applicant to go ahead with the surgery recommended by Dr Parkinson.
The applicant continued to present to Dr Schindler with a further prescription for Panadeine Forte being provided on 30 April 2021 and on 11 May 2021 the applicant attended on
Dr Schindler complaining that physiotherapy was not helping and was provided with a further prescription for Panadeine Forte.
The applicant continued to consult his GP in respect to his back condition and on
10 December 2021 the applicant attended complaining of pain down his left leg that morning.
On 1 August 2022 an MRI was performed of the applicant’s lumbar spine by Blacktown and Mt Druitt Hospitals Medical Imaging Department which is reported as displaying disc bulges at L4/5 and L5/S1 with extruded components extending into the left L4/5 and L5/S1 neural exit foramina and L4/5 moderate facet arthropathy. These changes were causing severe neural exit foraminal stenosis with compression of the left L4 and L5 nerve roots.
Dr Vanessa Perotti, neurosurgeon, reviewed the applicant on 1 September 2022 and reported to Dr Tim Schindler on 20 September 2022 that the applicant had ongoing left sided back pain and left leg and foot pain since sustaining an injury at work whilst working in aged care. The applicant had physiotherapy without any effect. A CT – guided steroid injection in April 2022 also had no effect except that the applicant felt that the pain was worsening.

Dr Perotti observed the applicant to be quite uncomfortable during the interview and examination. He was unable to sit on his left buttock and had to lean to the right.
The doctor reviewed the August 2022 MRI scan.
Observing that the applicant had undergone physiotherapy and targeted steroid injections with no effect Dr Perotti recommended an L4/5 discectomy and L5/S1 foraminotomy on the left side. The doctor was of the opinion that the surgery should be viewed as urgent as the applicant was in significant pain and due to nerve damage as the symptoms had persisted for more than 12 months.

Dr Guirgis

Dr Medhat Guirgis, consultant orthopaedic surgeon, provided a medico-legal report for the applicant dated 30 August 2022.
Dr Guirgis records a history that within a few hours of the subject incident on 8 March 2021 the applicant developed an acute left lumbosciatic syndrome. The symptoms failed to respond to conservative treatment. He was referred to Dr Parkinson who recommended surgery in the form of discectomy and rhyzolysis of the left L5 nerve root.
Dr Guirgis records a history of the applicant having sustained a back injury on 24 April 2018 when he slipped on an oily workshop floor in the course of his employment with Hyundai. Following that incident, he experienced pain in the left side of his lower back, left buttock and posterior thigh. He took one day off work and did not report the incident for fear of losing his job. He resumed his pre-injury duties, but he was struggling, and the pain was particularly triggered by sitting on a high stool at work forcing him to resign after a few months. He found for himself the job as a bus driver for the respondent. The applicant indicated that his pain settled down to a reasonable extent and was felt only on and off and did not affect his ability to do his duties without undue alarm until the subject incident on 8 March 2021.
Dr Guirgis diagnosed a left sided musculo-ligamentous sprain/strain of the lumbar spine as a result of the incident on 24 April 2018. In the opinion of Dr Guirgis the subject incident on
8 March 2021 resulted in further musculo-ligamentous sprain/strain of the lumbar spine with lumbar intervertebral disc involvement. This also triggered and aggravated the effects of underlying age appropriate degenerative changes. Dr Guirgis observed CT and MRI scan evidence of multi-level discopathic and spondylotic changes at the lower three lumbar levels.
Dr Guirgis is of the opinion, on the balance of probabilities, that the subject incident on
8 March 2021 is a substantial contributing factor to the applicant’s injury and symptoms.

Dr Sheehy

Dr John Sheehy, neurosurgeon, provided medico-legal reports for the respondent dated
19 July 2021 and 3 November 2021.
Dr Sheehy in his report dated 19 July 2021 took a history from the applicant that in the subject incident he sustained a twisting injury to his back developing pain in his left buttock. Within hours there was a lot of pain radiating into the buttock and further into the leg and he was unable to stand. The pain was particularly severe that evening. He didn't attend work the next day and reported the incident to his manager and filled out the paperwork to report the injury.
Dr Sheehy recorded a history that the applicant had previously sustained injury on
24 April 2018 when he slipped in a workshop on an oily floor whilst working for Hyundai at Castle Hill. He suffered pain in his left buttock and posterior thigh. He lost no time from work following that injury. The pain was calmed although he was required to sit on a high stool at work and was only able to stay working for a period of months after that injury when he resigned as the stool was exacerbating his left leg pain.
The only radiology which Dr Sheehy appears to have reviewed is the MRI of the lumbar spine undertaken on 26 March 2021.
Dr Sheehy diagnosed compression of the left L5 nerve root due to disc disruption at the L4/5 level and a tight neural exit foramen at L5/S1.
Dr Sheehy observed that the previous history is of back and left buttock pain which improved to some extent. He had been able to work satisfactorily for 2½ years with the respondent driving buses and undertaking aged care activities with the residents before the injury on
8 March 2021 which caused an exacerbation. Whilst the applicant developed left sided sciatic pain with the earlier injury on 24 April 2018 this improved significantly enabling him to undertake gainful employment.
The doctor is of the opinion that the subject injury on 8 March 2021 was an acute injury prior to which the applicant had been minimally symptomatic. The doctor was of the opinion, on the balance of probabilities, that the applicant had suffered an aggravation of a pre-existing injury and observed that the aggravation would not cease until the nerve root had been decompressed.
The doctor is of the opinion that the applicant requires a semi-urgent decompression of his left L5 nerve in view of the significant weakness affecting the L5 myotomes. This would involve removing the disrupted section of his L4/5 disc and ensuring that the L5 nerve root exits freely through the foramen at L5/S1. The surgery is required for a recent injury to the L5 nerve as he had been virtually asymptomatic and able to undertake all of his work duties for 2½ years with the respondent until the subject injury on 8 March 2021.
The doctor was of the opinion that there was no alternative treatment and that the L5 decompression was required as soon as possible.
Dr Sheehy in his report dated 3 November 2021 recorded a history that the applicant had sustained a jarring injury to his lumbar spine with pain in his left buttock as a result of the subject incident on 8 March 2021. The applicant had been well prior to the subject incident without significant pain.
The doctor is of the opinion that an MRI scan undertaken following the incident demonstrated compression of the L5 nerve root.
Dr Sheehy observed that the applicant had sustained an injury to his low back in 2018 from which he made a good recovery and was able to work as a bus driver for 2½ years with the respondent. The symptoms were not occurring as a chronic degenerative condition but rather to a disruption of the L4/S disc with compression of the L5 nerve root. The findings of nerve root compression were acute.
Dr Sheehy is of the opinion that the reported mechanism of injury is consistent with the symptoms and diagnosis. In coming to his opinion, the doctor observed that the applicant had significantly recovered following his earlier injury in 2018 although he had left that employment as he was unable to sit for prolonged periods. He had become more able to sit and had been operating a bus for 2½ years at the time of the subject injury.
Dr Sheehy is of the opinion that the predominant responsibility for the applicant’s condition and the need for surgery rests with the subject injury on 8 March 2021. The doctor observed in coming to this opinion that whilst there had been an earlier injury the applicant had significantly recovered and was able to work for 2½ years. The surgery is not completely related to his current employment but significantly related.
Dr Sheehy is of the opinion that the appropriate treatment is nerve root decompression.

Dr Antoun

Dr Tony Antoun, injury management consultant, provided an injury management report to the respondent dated 2 June 2022. On detailed questioning the applicant advised Dr Antoun that his back and left leg pain never settled after the incident in 2018 and he did not inform the respondent of his active symptoms at the time he applied for employment for fear that he would not get the job. The applicant was employed by the respondent for over 2 – 2 ½ years as a bus driver working eight hours per day, four days per week.
The applicant reported that he was coping again with his symptoms and current duties until
three weeks prior when he had a "flare up" for no known reason. The applicant confirmed experiencing a baseline of back pain with the left leg since the April 2018 incident.
Dr Antoun found no true clinical neurological deficit on examination. The doctor is of the opinion that the reported symptoms and clinical signs appeared to be consistent with facet joint pathology on the left side. The doctor suspected that the symptoms had returned to their pre-incident base line.
Dr Antoun is of the opinion that the incident in April 2018 appears to be the most substantial cause to the back injury, as that original mechanism of injury described appeared more traumatic in nature than simply stepping down from a bus. The applicant described ongoing persistent symptoms since the April 2018 injury and Dr Antoun suspect there was only a minor exacerbation of symptoms which are more consistent with degenerative facet pathology. The doctor suspected that any exacerbation of symptoms from the subject incident had resolved “long ago”. In the doctor’s opinion the flare up which the applicant was experiencing at the time of the examination with no event, was due to the progressive nature of the degenerative spinal disease.

Dr Machart

Dr Frank Machart provided a medico-legal report for the respondent dated 25 October 2022. Dr Machart records that following the subject incident the applicant developed lower back pain which radiated into his left leg.
Dr Machart noted that the applicant had suffered lower back pain prior to this day noting that he had sustained injury to his back whilst in the course of his employment with Castle Hill Hyundai about four years prior following which he went on to light duties. The symptoms from that incident did not resolve completely. He experienced pain when sitting. He had no sciatic symptoms. The applicant had left that job approximately three years prior to the examination and immediately commenced with the respondent.
He was managing the job with the respondent reasonably well. He was not totally symptom free, requiring analgesics. The difference between the pre and post 8 March 2021 back condition is that the severity of the condition had increased, and in addition there is now sciatic pain in the left leg. The pain failed to resolve with physiotherapy and steroid injections. Dr Machart noted that the applicant had been reviewed by the neurosurgeon, Dr Parkinson, who had recommended an operation.
Dr Machart noted that the applicant was continuing in his employment with the respondent working five hours per week but was not doing the driving.
Dr Machart agreed with Dr Parkinson’s diagnosis of L4/5 disc protrusion causing compression of the left L5 nerve root, requiring decompression related to the subject injury on 8 March 2021.
Dr Machart is of the opinion that the impact of the subject injury on 8 March 2021 is an increase in lumbar pain due to injury to the L4/5 disc pre-existing to radiculopathy at L4/5, extension of existing disc pathology to disc prolapse. The doctor observed that conservative treatment had failed to relieve the symptoms sufficiently and is of the opinion that it is reasonable to offer surgery in the form of lumbar discectomy.
Dr Machart observed that the information about the degree of back pain and radicular pain that was caused by the April 2018 is conflicting. The doctor observed that the symptoms from that injury did not resolve completely. Dr Machart noted that he was given a history that the true sciatic neurologically based symptoms followed the subject injury on 8 March 2021. The doctor observed that the picture is confusing as to the severity of the pain and location of the pain prior to injury being sustained on 8 March 2021. In the doctor’s opinion a careful examination of the documentation pertaining to the period between 2018 and 2021 would be necessary to obtain a clear picture. In the absence of additional information, Dr Machart concluded that there was aggravation from the injury on 8 March 2021, which caused radiculopathy, to the extent of now requiring surgery.
In the opinion of Dr Machart the opinion of Dr Antoun that the exacerbation of symptoms "would have resolved long ago" is a hypothetical. There was disc pathology prior to the injury on 8 March 2021. This may or may not have caused radiculopathy. The radiculopathy is now more severe, to the extent of needing surgery, there was no information that there was any recommendation for surgery prior to the subject injury. Dr Machart did not agree with
Dr Antoun on the hypothetical that the injury on 8 March 2021 would have resolved long ago.
Dr Machart was of the opinion that it was not in the interest of public safety for the applicant to return to bus driving.

Dr Fung

Dr Sebastian Fung provided a radiological review and report for the respondent dated
8 March 2023. The doctor reviewed the following radiological imaging:
(a)    lumbar spine X-rays dated 9 May 2016 and 15 January 2019;
(b)    lumbar spine CT scans dated 7 February 2020 and 11 March 2021, and
(c)    MRI scans of the lumbar spine dated 26 March 2021 and 10 August 2022.

Dr Fung observed that the X-ray from 9 May 2016 demonstrated normal alignment and disc spaces. The X-ray from 15 January 2019 revealed new onset loss of left sided L4/5 disc height and curvature of the lumbar spine convex to the left centred on L2/3.
The doctor commented that X-rays do not provide sufficient visualisation of the disc morphology, degree of disc protrusion and foraminal narrowing.
The doctor noted that according to handwritten notes, which the doctor found difficult to decipher, the applicant experienced left sided lumbar pain and symptoms on the left into the buttock posterior thigh and calf as a result of the incident in April 2018. In the doctor’s opinion this is compatible with left sided lower lumbar nerve root compression.
The doctor is of the opinion that it is possible that the incident in 2018 resulted in a disc protrusion in the lower lumbar spine on the left, resulting in loss of disc height at the L4/5 level on the left. The doctor observed that a CT scan of 7 February 2020 showed significant left sided L4/5 and L5/S1 foraminal narrowing, and left L4/5 lateral recess stenosis, which would account for the low back pain and left sided radicular symptoms.
Dr Fung is of the opinion that the CT scan of 11 March 2021, following the subject incident, remained unchanged compared to the CT scan of 7 February 2020.
The MRI of 26 March 2021 showed persisting left foraminal narrowing at the L4/5 and L5/S1 levels, as well as additional identification of a left L4/5 disc protrusion and annular defect causing left lateral recess stenosis and left L5 nerve root impingement. An annular defect on the right side of the L4/5 disc was also noted which the doctor observed would not have been visible on a CT scan.
On the MRI of 10 August 2022 Dr Fung observed left L4/5 and L5/S1 foraminal narrowing. The right L4/5 disc annular defect had not changed. The left paracentral L4/5 disc protrusion in the left lateral recess had resolved.
Dr Fung noted that a clinical note from 20 September 2022 recorded that the applicant has experienced ongoing significant pain and left sided symptoms for over 12 months and failed conservative therapy in terms of steroid injections and physiotherapy.
The doctor surmised that the applicant has had ongoing left lower spondylosis and left sided lower lumbar nerve root irritation and impingement since at least 7 February 2020, and quite possibly this was initiated at the time of the injury in April 2018, although there are no attendant CT or MRI scans to confirm this. In the doctor’s opinion the applicant certainly had by the CT scan of 7 February 2020 sufficient evidence on imaging to account for his left sided radicular pain/sciatica and back pain.
Dr Fung opined that the salient observation in regard to the CT scans of 7 February 2020 and 11 March 2021 was that the scan of 11 March 2021 was largely unchanged. This implied in the doctor’s opinion that, prior to the subject incident on 8 March 2021, the applicant had degeneration of his lumbar spine with left sided nerve impingement at the L4/5 and L5/S1 levels. The doctor concluded that although the subject incident on 8 March 2021 may have exacerbated his symptoms, there was a degenerative cause for left lower back pain and sciatica prior to the subject incident on 8 March 2021.

SUBMISSIONS

The parties have provided written submissions.

Applicant’s submissions

In summary Mr Jobson of counsel submitted on behalf the applicant that following the subject work related incident on 8 March 2021 the applicant attended on his GP on 9 March 2021 advising of the injury and setting out a complaint of low back and left leg pain. On 11 March 2021 the applicant attended on his GP complaining of back pain at which time a CT scan was requested together with a guided injection to the lumbar spine. The applicant again attended on his GP on 15 March 2021 at which time he was prescribed Panadeine Forte for the first time since 25 February 2019. The applicant made further complaints to his GP in March 2021 and on 27 March 2021 was referred to the neurosurgeon, Dr Parkinson. On
10 September 2021 the applicant attended on his GP at which time it was noted that he was awaiting surgery which needed approval. On 17 December 2021 the applicant underwent facet joint injection having undertaken hydrotherapy and physiotherapy.
On 10 September 2021 the applicant was referred to Dr Perotti, neurosurgeon, who recommended the proposed surgery. Dr Perotti in a report dated 20 September 2022 records that the applicant had undergone targeted steroid injections as well as three courses of physiotherapy with no effect and recommended L4/5 discectomy and L5/S1 foraminotomy on the left side.
On 30 August 2022 Dr Guirgis conducted a medico-legal examination with the doctor taking a history of the applicant having sustained a back injury on 24 April 2018 whilst in the course of his employment with Hyundai at Castle Hill which forced him to resign his employment within a few months of the injury. The applicant subsequently obtained employment with the respondent as a bus driver which he continued to perform with occasional pain until the subject injury on 8 March 2021.
Dr Guirgis diagnosed a muscular ligamentous sprain of the lumbar spine as a result of the incident on 24 April 2018. As a result of the subject incident on 8 March 2021 Dr Guirgis diagnosed a further muscular ligamentous sprain of the lumbar area with disc involvement triggering and aggravating the effects of underlying age appropriate degenerative changes.
Dr Guirgis is of the opinion that the subject incident on 8 March 2021 was and remained a substantial contributing factor to the applicant’s injuries, symptoms, signs, incapacities and disabilities.
Dr Sheehy who provided a medico-legal report to the respondent on 19 July 2021 took a history of the incident in April 2018 noting that the history is of back and left buttock pain which improved to some extent with the applicant being able to work satisfactorily for 2½ years with the respondent as a bus driver and undertaking aged care activities prior to the subject incident on 8 March 2021. The doctor noted that as a result of the previous incident in April 2018 the applicant had developed left sided sciatic pain which had significantly improved enabling him to undertake gainful employment.
It is submitted that the history of an improvement in the applicant’s condition following the incident in April 2018 is supported by the GP clinical notes which contain few complaints concerning the injury in April 2018 and that the medication prescribed in 2018 was less than that prescribed in 2021. There was also no recommendation for surgery following the
April 2018 incident until following the subject injury on 8 March 2021.
Dr Sheehy is of the opinion that the incident on 8 March 2021 caused an aggravation of the earlier sciatic injury, and that surgery is required for the recent injury to the L5 nerve as the applicant had been virtually asymptomatic and had been able to undertake his work duties with the respondent until the injury on 8 March 2021.

The applicant submitted that the respondent relies on the opinion of Dr Antoun who is of the opinion that there is a need for alternative treatment. Applying the Compensation Guidelines the applicant submits that the appropriateness of the proposed surgery has been dealt with by Dr Sheehy, the costs of the proposed surgery has been dealt with by Dr Perotti and the effectiveness of the proposed surgery has been dealt with by both Dr Perotti and Dr Sheehy.
It was submitted that Dr Machart agreed with Dr Parkinson in respect to diagnosis and the presence of a disc injury and that Dr Machart took into account the April 2018 injury in concluding that the injury on 8 March 2021 caused an increase in lumbar pain due to injury to the L4/5 disc pre-existing to radiculopathy at L4/5 and that conservative treatment had failed and it was reasonable to offer surgery in the form of a lumbar discectomy.
It was noted that Dr Machart observed in respect to the April 2018 injury that there was a confusing picture about the severity and location of the pain which would require a careful examination of the documentation pertaining to the period between 2018 and 2021. In the applicant’s submission the GP clinical notes show that the condition between 2018 and 2021 was less serious than the condition after the incident on 8 March 2021 and therefore the opinion of Dr Machart that the incident on 8 March 2021 caused an aggravation which caused radiculopathy to the extent that surgery is now required is correct. Dr Machart rejected the opinion of Dr Antoun.
It was noted that Dr Fung is of the opinion that the applicant sustained an aggravation of a pre-existing condition as a result of the incident on 8 March 2021.
It is submitted on behalf of the applicant that the opinion of Dr Antoun should not be accepted and that the proposed surgery is reasonably necessary.

Respondent’s submissions

The respondent through Mr Doak of counsel submitted that the respondent disputes liability for the costs of the claimed surgery on the grounds that any need for the proposed surgery is not causally related to the injury sustained on 8 March 2021 with the applicant having suffered a previous injury on 24 April 2018 whilst working for Hyundai Castle Hills.
The respondent submits that neither of the applicant’s two statements deals satisfactorily with the history of the April 2018 injury and the subsequent lower back and left leg symptoms. The respondent submits that the applicant has sought to play down the 2018 injury and its ongoing effects. However, the extent of the pre-existing back and leg symptoms are disclosed in the records from the applicant’s GP practice, Rouse Hill Town Medical and Dental Centre.
In the respondent’s submission the clinical records from the GP practice disclose a significant history of complaints by the applicant in respect to previous lumbar spine pain prior to the April 2018 injury. Prior to the April 2018 injury there is a history of lower back pain with radiation of pain into the left leg continuing up to the injury. The GP clinical records record a history of ongoing lumbar spine pain with radiation of pain into the applicant’s left leg in 2016.
On 24 April 2018 whilst in the course of his employment with a previous employer the applicant slipped on oil sustaining injury to his lumbar spine. On 25 April 2018 the applicant attended on the GP, Dr Swe, who recorded a history of the work related incident and referred the applicant for a CT scan of his lumbar spine. A copy of any report in respect to the CT scan is not among the clinical records. The applicant drew attention to entries in the GP clinical notes between June 2018 and February 2020 including entries on 12 January 2019 and 7 February 2020 which refer to left leg pain. The respondent noted that a CT scan of the lumbar spine was performed on 7 February 2020.
The respondent submits that the applicant had significant pathology in his lumbar spine prior to the subject injury with symptoms of ongoing lumbar spine pain and referred pain into his left leg. The respondent submitted that in order to determine whether there was any material contribution to the need for surgery it is necessary to compare the pathology demonstrated in the February 2020 CT scan with the investigations performed after the subject injury.
The respondent submits that the findings from a further CT scan of the lumbar spine performed on 11 March 2021 are consistent with the pathology identified on the February 2020 scan. Further the findings on the CT scans of February 2020 and 11 March 2021 are consistent with an MRI scan performed on 26 March 2021.
The fact that the CT scan performed on 7 February 2020 did not identify a disc herniation does not assist the applicant’s case as it was also not identified on the CT scan performed on 11 March 2021. The respondent submitted that without an MRI performed prior to the subject injury it cannot reasonably be concluded that the subject incident caused a disc herniation.
In respect to the applicant’s credibility the respondent submits that the applicant when completing the application for employment with the respondent on 11 September 2019 answered “no” to a question as to whether he had or does have any workers compensation. The respondent submits that the applicant’s answer is plainly untruthful as the applicant had previously received workers compensation benefits for the 2018 injury.
The respondent submits that the applicant’s failure to provide truthful information to the respondent in his application for employment affects his credibility as a witness in the proceedings. The applicant has failed to provide any reason for his lack of honesty in providing information to the respondent. In the absence of any proper explanation, it is not open to the applicant to submit that he did so because he wanted to secure the job. There can be little doubt that the applicant’s answer was consciously false.
The respondent submits that the only finding open on the evidence is that the applicant consciously lied to the respondent when he completed the application. The effect of that finding must be that where there is any doubt or inconsistency in the evidence it should be resolved against the applicant. Those inconsistencies arise principally in relation to the history of the nature and extent of the back and left leg symptoms prior to the injury recorded by the doctors who have examined him.
In the respondent’s submission neither Dr Perotti or Dr Guirgis have given a properly reasoned basis for their opinions. Dr Perotti saw the applicant on 1 September 2022. The doctor relied on a history that the applicant said he had “ongoing left back pain left leg pain and foot pain” since the injury. That history is not consistent with the GP clinical records between 11 March 2021 and September 2022, which show intermittent complaints of low back pain and left leg pain. Dr Perotti was not provided with a proper or accurate history of the prior lumbar spine and left leg pain (or at least the doctor did not record it in their report) as the only history noted was that the applicant “has not had any spinal surgery in the past”. Further, Dr Perotti’s review of an MRI scan performed in August 2022 is consistent with the pathology in the lumbar spine reported in the CT scans performed in February 2020 and March 2021, demonstrating a consistency of pathology.
The respondent submits that the opinion of Dr Perotti can be given little weight on the issue of whether the subject injury has materially contributed to the need for the surgery.
Dr Guirgis was provided with a history of the April 2018 injury with pain in the lumbar spine radiating to the left thigh. However, the doctor was told by the applicant that “the pain settled down to a reasonable extent and was felt only on and off but did not affect his ability to do his duties without undue alarm…” The respondent submits that the GP clinical records simply do not support that history as they demonstrate that the applicant continued to experience significant lower back and left leg symptoms after the April 2018 injury resulting in a CT scan of the lumbar spine being performed in February 2020.
The applicant completed an application to work with the respondent on 11 February 2019. He presented to his GP, Dr Schindler, on 25 February 2019 in relation to lumbar spine symptoms with the doctor noting that investigations showed a lumbar disc prolapse. Those complaints continued during 2019 and 2020. The applicant was also obtaining workers compensation certificates during 2019. The respondent submits that given the evidence in the GP records the comment by Dr Guirgis in respect to the applicant being able to “do his duties without undue alarm” should be given little credence.
The respondent submits that Dr Guirgis has not provided a proper basis for his opinion that the injury on 8 March 2021 “resulted in further musculo-ligamentous sprain/strain of the lumbar area of the spine with lumbar intervertebral disc involvement…” as well as triggering and aggravating underlying degenerative changes. In coming to that opinion, Dr Guirgis relied on his own conclusion that the April 2018 injury was a “musculo-ligamentous sprain/strain of the lumbar area of the spine”. However, his conclusion was based on the post 8 March 2021 investigations without reference to the earlier CT scan or to an accurate history of the degree of the symptoms following the April 2018 injury. In the absence of a proper reasoned comparison with the earlier investigations the opinion of Dr Guirgis as to the cause of the pathology identified in the 2021 CT scan and MRI scan amounts to a base “ipse dixit” and as such should be given little, if any weight.
Additionally, Dr Guirgis has not addressed the question of the liability for the surgery proposed by Dr Perotti. In the ordinary course it would be expected that further comment would have been sought from Dr Guirgis. No explanation for the absence of a further report has been provided by the applicant.
The respondent relies on the reports of Dr Antoun dated 2 June 2022, Dr Machart dated
25 October 2022 and Dr Sheehy dated 19 July 2021 in support of its denial of liability.
Dr Antoun recorded a history of the April 2018 injury involving back pain radiating down the left leg. Notably, the applicant told Dr Antoun that his back and leg pain never settled and that he did not tell the respondent about his symptoms because he did not want his employment application to be rejected. That is consistent with the response the applicant gave to the question in the Application for Employment form and supports the accuracy of the history recorded by Dr Antoun.
Dr Antoun also records that the applicant reported that he was getting better after the subject injury on 8 March 2021 and had returned to work performing light duties before a flare up of the pain with no obvious event.
Dr Antoun is of the opinion that the April 2018 injury is the more substantial cause of the back pathology and symptoms whilst the subject injury on 8 March 2021 only caused a minor exacerbation of symptoms.
The respondent submits that Dr Antoun’s history and conclusion is consistent with the history recorded in the GP clinical records between March 2021 and June 2022. The applicant presented to Dr Schindler on 27 March 2021 complaining of left sided back pain. No complaint of left leg pain was recorded at that consultation. That complaint and the earlier complaint of low back pain and left leg pain on 15 March 2021 is consistent with the nature of the complaints made by the applicant prior to the injury. On 15 April 2021 Dr Schindler recorded the applicant “advised to go ahead with the surgery as advised by Dr Parkinson”.
There is no evidence as to the matters Dr Parkinson considered in recommending surgery. However, what is apparent from the contemporaneous GP clinical records is that the applicant was complaining about the same symptoms in the period between March 2021 and April 2021 as he had been since the April 2018 injury. The respondent submitted that it is not to the point that the applicant was required to take time off work in the period following the injury on 8 March 2021. The issue is whether the injury materially contributed to the need for the proposed surgery. The applicant also gave Dr Machart an inaccurate history of his symptoms following the April 2018 injury. Dr Machart recorded that the applicant told him he only experienced low back pain with no sciatic symptoms.
In contrast the applicant said that following the subject injury on 8 March 2021 he began experiencing left leg symptoms. The respondent submits that the history given to Dr Machart by the applicant is inaccurate and misleading. Dr Machart also commented that in providing his opinion Dr Sheehy had also relied on a history of the applicant having no significant back pain prior to the accident, which was incorrect.
Dr Machart made a diagnosis of L4/5 disc protrusion causing radiculopathy. The doctor noted that there was conflicting information about the degree of back pain and radicular pain caused by the April 2018 injury and stated that in order to provide a final opinion he would require a careful examination of documents related to both the April 2018 and the subject
8 March 2021 injuries. The respondent was not able to obtain a further report from
Dr Machart as the GP clinical records were not obtained by the respondent until shortly before the conciliation and arbitration conference.
Although Dr Machart raised doubt about the opinion of Dr Antoun that the exacerbation of symptoms in the lumbar spine following the injury would have resolved. Dr Machart does not support a conclusion that the radicular symptoms were caused by the injury on 8 March 2021.
Dr Sheehy diagnosed compression of the left L5 nerve root due to disc disruption at the L4/5 level and a tight exit foramen at L5/S1. Although Dr Sheehy went on to state that the injury on 8 March 2021 was an aggravation of an earlier sciatic injury the doctor’s opinion is heavily compromised by the fact that he did not have access to and did not consider the investigations of the applicant’s lumbar spine undertaken prior to the injury. The doctor was also relying on an incorrect history that following the April 2018 injury the left sided sciatic pain significantly improved. The respondent submitted that without proper consideration of the 2020 CT scan and the history of ongoing pain radiating to the left leg after the April 2018 injury, Dr Sheehy’s opinion is compromised and can be afforded very limited weight.
The respondent submits that on the available evidence one could not be comfortably satisfied that the injury on 8 March 2021 materially contributed to the need for the surgery proposed by Dr Perotti. The applicant’s statement evidence fails to properly address the question of the extent (if any) of any exacerbation of the symptoms in his lumbar spine and left leg by comparing his condition in the period between the April 2018 injury and the subject injury on 8 March 2021 in any helpful and meaningful way. For that reason the applicant’s submissions have sought to place reliance on the clinical records of the applicant’s GP practice in an effort to demonstrate that the applicant’s symptoms worsened following the subject injury on 8 March 2021. The difficulty with that approach is that the entries in the doctor’s records do no more than record the doctor’s interpretation of the history given at the time. Viewed in that way it is clear that the applicant had continued to experience pain in his lumbar spine with radicular pain in his left leg despite the history given to a number of doctors by the applicant to the contrary. In addition to the absence of statement evidence from the applicant there is also a dearth of reports from the GP practice or his treating specialists other than Dr Perotti.
The respondent submits that in effect the applicant is asking one to accept the truthfulness and accuracy of his interpretation of the history of back and leg complaints following the injury as recorded in the GP clinical notes and based on a comparison with the entries in those records following the April 2018 injury to find that there was an exacerbation of the condition. In the absence of reliable evidence from the applicant addressing the issue, the absence of reports from the treating doctors and the inaccuracy of the history relied on by the doctors whose reports are in evidence one would not be persuaded that such an approach can lead to a reliable finding that the injury on 8 March 2021 materially contributed to the need for the claimed surgery.

Applicant’s submissions in reply

The applicant made no submissions in reply.

FINDINGS AND REASONS

Consideration and findings

Pursuant to s 60 of the 1987 Act the applicant seeks the payment of the costs of L4/5 discectomy and L5/S1 foraminotomy left side surgery as recommended by Dr Vanessa Perotti, neurosurgeon.
The applicant sustained injury to his lumbar spine whilst in the course of his employment with the respondent on 8 March 2021 when he stepped backwards from a bus which he had parked, lost his balance and jarred his back.
The applicant had suffered a previous injury to his low back on 24 April 2018 when in the course of his employment with Castle Hill Hyundai he slipped whilst in a workshop. The applicant had also suffered injury to his low back prior to 24 April 2018.
The respondent disputes that that the claimed surgery and related treatment is reasonably necessary as a result of the injury sustained on 8 March 2021.
Section 60(1) of the 1987 Act provides:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that—
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
Note—
Compensation for domestic assistance is provided for by section 60AA.”
Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC2; (1986) 2 NSWCCR 32 (Rose) when considering s 10(1) of the Workers Compensation Act 1926 (the 1926 Act) said:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”

Burke CCJ in Rose went on to state:
“In determining whether a particular regimen is medical treatment and whether it is reasonably necessary that such be afforded to a worker and that such necessity results from injury, it appears to me some general principles can be stated:
1. Prima facie, if the treatment falls within the definition of medical treatment in section 10(2) [the 1926 Act], 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 it be 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 purposes of the Act.
3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”

The legal test to be applied when determining whether proposed treatment is reasonably necessary as a result of a workplace injury as required by s 60 of the 1987 Act was considered in Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab) where Roche DP stated at [86]:
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply.”
In Diab Deputy President Roche cited the decision of Burke CCJ in Rose with approval and stated:
“[88] In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose……namely:
(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.

[89] 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.
[90] While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”

In terms of whether a proposed treatment is reasonably necessary as a result of the work-related injury Roche DP in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy) stated:
“[57] ….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.
[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).”

The respondent has to prove:
(a)    that he received an injury for the purposes of the workers compensation legislation;
(b)    that “as a result of” that injury he requires the proposed treatment, and
(c)    that the proposed treatment is “reasonably necessary”.

Injury

There is no dispute that the applicant sustained an injury to his low back in the course of his employment with the respondent on 8 March 2021. As there is no dispute that an injury was sustained the respondent has made no submissions denying the occurrence of the event on 8 March 2021.
It is the applicant’s evidence that whilst in the course of his employment with the respondent on 8 March 2021 he had parked a bus and whilst stepping backwards from the bus with the intention of stepping onto a 30cm high wall, he missed the wall and as a result had lost his balance and started to fall backwards. He managed to stop falling but in doing so jarred his back and developed acute back pain within a few hours.
On 9 March 2021 the applicant attended on his GP, Dr Schindler, complaining of low back and left leg pain and requesting medication for pain relief. On 11 March 2021 a CT scan of the lumbar spine was requested as well as a CT guided injection to the lumbar spine. On
12 March 2021 Dr Schindler recorded a history of the applicant sustaining injury to his back, exacerbation of an old injury, when he stepped out of a bus at work.

Is the proposed treatment required “as a result’ of the injury sustained on 8 March 2021?

A condition can have multiple causes. 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, that the treatment is reasonably necessary ‘as a result of’ the injury. That is, the applicant has to establish that the injury materially contributed to the need for the surgery.[1]
[1] Murphy.
On the balance of probabilities applying the commonsense test of causation, I find that the injury sustained on 8 March 2021 materially contributes to the need for the surgery proposed by Dr Perotti for the following reasons.
The medical evidence supports that the applicant suffered a significant aggravation of a pre-existing condition in the incident on 8 March 2021.
The applicant had suffered from a lower back condition prior to the subject incident on
8 March 2021. The applicant appears to have commenced employment with the respondent in or about February / March 2019 having completed an application for employment on
11 February 2019.
It is the applicant’s evidence that prior to the subject incident on 8 March 2021 he sustained injury to his lower back on 24 April 2018 whilst in the course of his employment with his then employer Castle Hill Hyundai when he slipped on spilt oil. On 25 April 2018 the applicant attended of Dr Swe at the Rouse Hill Town Medical and Dental Centre with a history of having suffered a fall at work. The clinical note from the attendance does not record what injuries were sustained however the applicant was referred for a CT scan of the lumbar spine and provided with an initial Workcover certificate.
The medical evidence also supports that the applicant had lumbar spine problems prior to the incident on 24 April 2018.
The clinical records from the Rouse Hill Town Medical and Dental Clinic which commence on 7 April 2009 record that the applicant attended on 26 July 2012 following being involved in a rear end collision that day. At the time the applicant was complaining of neck pain however when the applicant attended on 28 July 2012 he was complaining of neck and lower back pain. On 28 July 2012 the applicant was referred for physiotherapy with the referral noting a “small element of low back discomfort”.
The applicant continued to attend on the Rouse Hill Town Medical Clinic making intermittent complaints in respect to his back until 9 May 2016.
On 6 May 2016 the applicant attended on Dr Schindler complaining of low back pain radiating to his left leg. This is the first recorded complaint by the applicant in the medical evidence of left leg symptoms. The applicant next attended on Dr Schindler on 9 May 2016 with lumbar spine problems but no radiation. A referral was made on 9 May 2016 for an
X-ray of the lumbar spine which was performed on the same day.
The clinical records record no further complaints from the applicant in respect to his lower back until 24 August 2018. However, on 25 April 2018 the applicant was referred for a CT scan of his lumbar spine.
Between 10 May 2016 and 24 April 2018 the applicant continued to attend on the Rouse Hill Town Medical and Dental Centre however the GP notes contain no complaints in respect to the lumbar spine. There are also no other contemporaneous medical records during the said period evidencing any complaints in respect to the lumbar spine.
As previously noted, it is the applicant’s evidence that he sustained injury to his lower back on 24 April 2018 whilst in the course of his employment with his then employer Castle Hill Hyundai when he slipped on spilt oil. The applicant’s statements, which are very brief, do not provide any history as to the applicant’s symptoms and disabilities following the injury on
24 April 2018.
On 25 April 2018 the applicant attended on the GP, Dr Swe, with a history of a fall at work. The clinical note from the attendance does not record the nature of any injuries sustained in the fall however the applicant was referred for a CT scan of the lumbar spine, prescribed pain relief in the form of Panadeine Forte tablets and issued with an initial Workcover certificate. On 2 June 2018 Dr Swe issued a Workcover certificate recording in the clinical note of the attendance “still work normal duty” and on 21 June 2018 Dr Swe issued a Workcover certificate noting in the clinical record of the attendance “all are continue full time with - as tolerated”.
On 24 August 2018 the applicant attended on Dr Swe who issued a Workcover progress certificate and recorded in the clinical note of the attendance “usual work cover for back pain (same job fulltime all are work as tolerated”.
On 30 August 2018 the applicant presented to Dr Swe complaining of back pain.
On 18 September 2018 the applicant presented to the GP, Dr Nigel Hawkins, complaining of lower back pain which went from one side to the other. Dr Hawkins took a history of the applicant having injured his back at work on 24 April 2018 when he slipped. Sitting on a stool seemed to aggravate the back pain. On 18 September 2018 Dr Hawkins referred the applicant to Body Focus Physio and Massage for physiotherapy and chiropractic treatment.
The applicant continued to attend the Rouse Hill Town Medical and Dental Centre complaining of back pain and being issued with Workcover certificates.
The last Workcover certificate of capacity issued to the applicant prior to the incident on
8 March 2021 appears to have been issued on 29 May 2020. The actual Workcover certificates issued to the applicant following the injury on 24 April 2018 and prior to the subject injury on 8 March 2021 are not in evidence. However, the GP notes in respect to the attendances when the certificates were issued tend to indicate that the applicant was certified fit for his pre-injury duties and hours for example:
(a)    on 2 June 2018 Dr Swe issued a Workcover certificate recording in the clinical note of the attendance “still work normal duty”;
(b)    on 21 June 2018 Dr Swe issued a Workcover certificate noting in the clinical record of the attendance “all are continue full time with - as tolerated”;
(c)    on 24 August 2018 the applicant attended on Dr Swe who issued a Workcover progress certificate and recorded in the clinical note of the attendance “usual work cover for back pain (same job fulltime all are work as tolerated”;
(d)    on 19 October 2018 Dr Swe participated in a case conference and issued a Workcover certificate noting in the clinical record of the attendance “full duty with M/M tolerated”, and
(e)    on 17 November 2018 Dr Swe issued a Workcover certificate noting in the clinical record of the attendance that all “are as tolerated 8 hour for 5/day job”.
On 14 November 2018 the applicant reported to Dr Swe that he had resigned from his employment due to back pain and being unable to work more than eight hours a day.
Following his resignation from the respondent the applicant continued to attend the Rouse Hill Town Medical and Dental Centre complaining of back pain and on 12 January 2019 the applicant presented to Dr Schindler reporting that his back had been playing up and complaining of low back pain which was radiating to his left leg. This is the first reference to leg pain in the treating medical evidence following the injury on 24 April 2018.
On 16 January 2019 Dr Mark Craddock reported on an X-ray of the lumbar spine. The doctor noted a clinical history of low back pain radiating to the left leg. Relevantly the doctor identified the presence of left sided narrowing at the L4/5 level and on 25 February 2019
Dr Schindler observed that the X-ray showed a disc prolapse.
The applicant appears to have commenced employment with the respondent in or about February / March 2019 having completed an application for employment on
11 February 2019.
Following his likely commencement with the respondent Dr Schindler referred the applicant to Mr John Cice on 30 March 2019 for ongoing management of his lower back issues.
Mr Cice appears to have provided chiropractic treatment.
On 31 May 2019, 5 July 2019 and 30 August 2019 the applicant attended on Dr Schindler obtaining Workcover certificates. However, the clinical notes of the attendances contain no reference to the applicant’s back condition.
On 25 October 2019 the applicant attended on Dr Schindler for an update certificate and referral to a chiropractor. A provisional diagnosis of lumbar disc prolapse was made. On
25 October 2019 Dr Schindler referred the applicant back to Mr John Cice due to ongoing back pain. On 13 December 2019 Dr Schindler again referred the applicant to Mr John Cice for ongoing management of his back pain.
On 7 February 2020 the applicant presented to Dr Schindler with left leg and low back pain. Apart from the X-ray report of Dr Craddock this is only the second recorded report of left leg symptoms in the treating medical evidence following the injury on 24 April 2018. Dr Schindler made a provisional diagnosis of lumbar disc prolapse and the applicant was referred for a CT scan of the lumbar spine.
The applicant continued to attend on the Rouse Hill Town Medical and Dental Centre complaining of back pain and continued with chiropractic treatment.
From 30 May 2020 to 12 February 2021 the treating medical evidence, including the GP notes, contain no reference to the back condition or to workers compensation.
On 13 February 2021 the applicant attends on Dr Schindler for reasons other than his back condition. However, at that time he was referred back to John and Angela Cice. The clinical record for the attendance makes no reference to the back condition and does not provide any indication of the reason for the referral. The letter of referral dated 13 February 2021 noted that the applicant was being referred due to back pain.
The treating medical evidence supports that prior to the subject incident on 8 March 2021 the applicant had an ongoing symptomatic lower back condition. The condition was treated intermittently with physiotherapy and chiropractic treatment. Whilst radiological investigations were performed no referral was made after the incident on 24 April 2018 to a spinal surgeon. Presumably the applicant’s treating GP’s were of the opinion that the applicant’s condition did not warrant such a referral.
There is no evidence that the applicant’s back condition affected his ability to perform his work duties with the respondent. Duties which the applicant performed for approximately two years prior to the injury on 8 March 2021.
The treating medical evidence only rarely refers to leg symptoms which would indicate that the symptoms were either intermittent and/or of no great significance. This conclusion is supported by the fact that the applicant attended on multiple GP’s at the Rouse Hill Medical and Dental Centre who failed to record complaints of leg symptoms.
Following the injury on 24 April 2018 the applicant was prescribed pain relief medication in the form of Panadeine Forte on 25 April 2018. The applicant’s condition then appears to have settled as no further prescriptions for pain relief were given prior to injury being sustained on 8 March 2021 except for a prescription for Panadeine Forte on 25 February 2019 however this prescription may have been for an unrelated condition.
Whilst the applicant ultimately resigned from his employment with Castle Hill Hyundai in November 2018, according to the GP clinical note of 14 November 2018 due to being unable to work greater than eight hours per day, he was able to return to work on full hours and normal duties within it would seem one day of sustaining the injury. The only restriction it would seem that was placed on his work duties was that they were to be performed as tolerated.
The treating medical records also contain a significant gap from 30 May 2020 to 12 February 2021 in which no complaints are recorded in respect to the back condition. Shortly prior to the subject injury on 8 March 2021 the applicant does attend on Dr Schindler on 13 February 2021 who refers the applicant back to Angela and John Cice, presumably for chiropractic treatment. The clinical record of the attendance on Dr Schindler records the reason for the attendance which was an issue unrelated to the back condition. It contains no reference to any complaints in respect to the back and provides no indication as to why the applicant was being referred. The referral itself simply instructs that it is due to back pain. There is no indication that any significant event or flare up of the back condition had occurred.
Following the injury on 8 March 2021 the applicants back condition significantly alters.
On 9 March 2021, the day after the subject work-related injury, the applicant attended on
Dr Schindler complaining of lower back and left leg pain and wanting pain relief. The doctor prescribed Panadeine Forte; the first time that the applicant had been prescribed Panadeine Forte since 25 February 2019 and possibly the first time that he had been prescribed Panadeine Forte due to his low back condition since 25 April 2018.
The applicant next attended on his GP on 11 March 2021 when he attended on Dr Schindler due to back pain at which time he is referred for a CT scan of the lumbar spine and his first CT guided injection to the lumbar spine.
When the applicant attended on Dr Schindler on 12 March 2021 the doctor noted that the left leg pain had improved and took a history that the applicant had stepped out of a bus at work and injured his back which the doctor noted was an exacerbation of an old injury. The applicant was prescribed Osteomol and Paracetamol and issued a certificate of capacity. However, when the applicant next presented to Dr Schindler on 13 March 2021 the applicant reported that his pain had gone to the bottom of his leg.
The applicant next attended on Dr Schindler on 15 March 2021 at which time the doctor noted that the left leg pain was not settling and provided a further prescription for Panadeine Forte. On 18 March 2021 the applicant had improved but wanted a referral for an MRI.
On 23 March 2021 the applicant was referred for physiotherapy and on 25 March 2021 the applicant was provided with another prescription for Panadeine Forte.
The MRI of the lumbar spine performed on 26 March 2021 was reported as displaying lumbar spondylosis with disc changes, likely impingement of the L5 nerve root at the lateral recess, neuroforaminal exit narrowing with likely abutment / impingement of the exiting left L3, L4 and L5 nerve roots and facet joint pathology.

On 27 March 2021 Dr Schindler was of the opinion that the applicant’s condition warranted referral to a neurosurgeon and the applicant was referred to Dr Parkinson. This is the first time that the applicant had been referred to a specialist spinal surgeon since his attendance on Dr Hsu in 2013.
On 1 April 2021 the applicant was prescribed further Panadeine Forte.
On 12 April 2021 Dr Parkinson reported to Dr Schindler noting that following the subject fall at work on 8 March 2021 the applicant had suffered with pain radiating into the left paraspinal region, trochanteric region, lateral thigh and anterolateral shin with concurrent paraesthesia in a similar distribution and that there had been limited improvement with physiotherapy.
Dr Parkinson was of the opinion that the applicant required decompression of the left L4 and L5 nerve roots which the doctor planned to do by microdiscectomy using a minimally invasive approach.
In respect to the opinion of Dr Parkinson the respondent submits that there is no evidence as to the matters that Dr Parkinson considered in making his recommendation. I do not accept the respondent’s submission. Dr Parkinson, in his role as a treating specialist, records a brief history which is limited to the incident on 8 March 2021. The doctor does not undertake an analysis of the applicant’s history to determine what injury caused the need for the surgery and the doctor provides no opinion on the issue but rather just takes a limited history. The doctor does provide a recommendation in respect to the need for surgery and does so after undertaking an examination of the applicant and reviewing the MRI scan performed on
26 March 2021.
On 15 April 2021 Dr Schindler advised the applicant to go ahead with the surgery recommended by Dr Parkinson.
The applicant continued to present to Dr Schindler with a further prescription for Panadeine Forte being provided on 30 April 2021, and on 11 May 2021 the applicant attended complaining that physiotherapy was not helping and was provided with a further prescription for Panadeine Forte.
The applicant continued to consult his GP in respect to his back condition and on
10 December 2021 the applicant attended complaining of pain down his left leg that morning.
On 1 August 2022 an MRI was performed of the applicant’s lumbar spine which is reported as displaying disc bulges at L4/5 and L5/S1 with extruded components extending into the left L4/5 and L5/S1 neural exit foramina and L4/5 moderate facet arthropathy. These changes were causing severe neural exit foraminal stenosis with compression of the left L4 and L5 nerve roots.
The neurosurgeon, Dr Vanessa Perotti, reviewed the applicant on 1 September 2022 and reported to Dr Schindler on 20 September 2022 that the applicant had ongoing left sided back pain and left leg and foot pain since sustaining an injury at work whilst working in aged care. The applicant had physiotherapy without any effect. A CT – guided steroid injection in April 2022 also had no effect except that the applicant felt that his pain had worsened.
Dr Perotti observed the applicant to be quite uncomfortable during the interview and examination. He was unable to sit on his left buttock and had to lean to the right.
Dr Perotti reviewed the August 2022 MRI scan. Observing that the applicant had undergone physiotherapy and targeted steroid injections with no effect Dr Perotti recommended an L4/5 discectomy and L5/S1 foraminotomy on the left side. The doctor was of the opinion that the surgery should be viewed as urgent as the applicant was in significant pain and due to nerve damage as the symptoms had persisted for more than 12 months.
The respondent submits that the opinion of Dr Perotti should be given little weight on the issue of whether the subject injury on 8 March 2021 has materially contributed to the need for the proposed surgery. In particular the respondent argues that the history taken by
Dr Perotti is deficient.
Dr Perotti examined and reviewed the applicant in her capacity as a treating neurosurgeon and therefore was probably less concerned with obtaining a detailed history of what injuries had been sustained and when, than with the treatment of the condition. I accept that
Dr Perotti in her report has taken no history in respect to the applicant’s condition prior to the subject injury on 8 March 2021 and I therefore, given the incomplete history, accept the respondent’s submission that little weight can be given to the opinion of Dr Perotti in respect to the issue of whether the subject injury on 8 March 2021 has materially contributed to the need for the proposed surgery. The lack of history does not however impact upon the doctor’s opinion in respect to the need for the recommended surgery.
The clinical notes of the Rouse Hill Town Medical and Dental Centre which were printed on
4 April 2023 record that the applicant was last prescribed Panadeine Forte on 28 March 2023 shortly before the records were printed. The applicant continued to attend on the practice and on 31 March 2023 was provided with an updated Workcover certificate and on
27 March 2023 the applicant was complaining of left leg pain and wanted to try Gabapentin which was prescribed to him.
The treating medical records therefore evidence that following the subject injury on
8 March 2021 the applicant has complained of left leg pain which had become far more significant than that which he had experienced prior to the subject injury on 8 March 2021. The applicant’s condition warranted repeated prescriptions of the pain-relieving medication Panadeine Forte which the applicant had only twice been prescribed between 24 April 2018 and 8 March 2021. The applicant had a CT guided injection to his lumbar spine for the first time and was referred to two specialist spinal surgeons for the first time since 2013. Both surgeons recommended surgery with the first recommendation being made by Dr Parkinson a little over a month after the injury was sustained on 8 March 2021.
In support of his case the applicant relies on a report of Dr Medhat Guirgis, consultant orthopaedic surgeon, dated 30 August 2022. Dr Guirgis records a history that within a few hours of the subject incident on 8 March 2021 the applicant developed an acute left lumbosciatic syndrome. The symptoms failed to respond to conservative treatment and he was referred to Dr Parkinson who recommended surgery in the form of discectomy and rhyzolysis of the left L5 nerve root.
Dr Guirgis records a history of the applicant having sustained a back injury on 24 April 2018 when he slipped on an oily workshop floor in the course of his employment with Hyundai. Following that incident, he experienced pain in the left side of his lower back, left buttock and posterior thigh. He took one day off work and did not report the incident for fear of losing his job. He resumed his pre-injury duties, but he was struggling, and the pain was particularly triggered by sitting on a high stool at work forcing him to resign after a few months. He found for himself the job as a bus driver for the respondent. The applicant indicated to the doctor that his pain settled down to a reasonable extent and was felt only on and off and did not affect his ability to do his duties “without undue alarm” until the subject incident on
8 March 2021.
Dr Guirgis diagnosed a left sided musculo-ligamentous sprain/strain of the lumbar spine as a result of the incident on 24 April 2018. In the opinion of Dr Guirgis the subject incident on
8 March 2021 resulted in further musculo-ligamentous sprain/strain of the lumbar spine with lumbar intervertebral disc involvement. This also triggered and aggravated the effects of underlying age-appropriate degenerative changes. Dr Guirgis observed CT and MRI scan evidence of multi-level discopathic and spondylotic changes at the lower three lumbar levels.
Dr Guirgis is of the opinion, on the balance of probabilities, that the subject incident on
8 March 2021 is a substantial contributing factor to the injury and symptoms.
The respondent submits that the GP clinical notes do not support the history taken by
Dr Guirgis that the applicant’s “pain settled to a reasonable extent and was only on and off but did not affect his ability to do his duties without undue alarm…” I do not accept the respondent’s submission for the following reasons. The comment in question was made by Dr Guirgis in respect to the applicant’s employment with the respondent. Dr Guirgis records a history that following the incident on 24 April 2018 the applicant took one day off work before resuming his pre-injury duties with which he struggled, his pain being triggered particularly by sitting on a high stool at work which forced him to resign, subsequently finding employment with the respondent. Prior to ceasing employment with Hyundai Castle Hill the applicant was certified fit for his pre-injury hours of work and his pre-injury duties as tolerated.
Whilst employed by the respondent there is no indication in the clinical records that the applicant was unable to perform his work duties and he performed those duties for a period of approximately two years before the subject injury. Whilst the applicant did continue to attend upon his GP complaining of back pain there is a significant gap from 30 May 2020 to 12 February 2021 in which no complaints are recorded in respect to the back condition. During the period that he was employed by the respondent prior to 8 March 2021 the applicant was not prescribed Panadeine Forte for pain relief except possibly on 25 February 2019 when it may have been prescribed for an unrelated condition and which may also have been prior to the commencement of his employment with the respondent. Also, the only recorded complaints of left leg symptoms are in January 2019 and February 2020 which as previously discussed is indicative that any left leg symptoms were not particularly significant. Whilst the applicant may have received Workcover certificates whilst employed by the respondent prior to 8 March 2021 those certificates did not relate to any injury sustained with the respondent and do not appear to have impacted on the applicant’s ability to perform his work duties with the respondent.
The respondent also submitted that Dr Guirgis has not provided a proper basis for his opinion that the injury on 8 March 2021 “resulted in further musculo-ligamentous sprain/strain of the lumbar area of the spine with lumbar intervertebral disc involvement…” as well as triggering and aggravating underlying degenerative changes. The respondent submits that in coming to that opinion the doctor relied on his own conclusion that the 2018 injury was a “musculo-ligamentous sprain/strain of the lumbar area of the spine” a conclusion which the respondent submits was based on the post March 2021 radiology without reference to the earlier CT scan or to an accurate history of the applicant’s symptoms following the 2018 injury.
I do not accept the respondent’s submission for the following reasons. The diagnosis which the applicant makes in respect to the injury on 24 April 2018 is a separate diagnosis to that which the doctor makes in respect to the injury sustained on 8 March 2021. There is no reason to believe that the diagnosis of 8 March 2021 is reliant on the diagnosis made on
24 April 2018. Whilst Dr Guirgis does not diagnose any disc involvement as a result of the injury on 24 April 2018 he notes that there was left sided lower back, left buttock and posterior thigh pain which he records as having “settled down to a reasonable extent and was felt only intermittently”. As previously discussed, the lower back pain does appear to have been ongoing and the left leg pain appears to have been of little significance being rarely worthy of recording in the clinical records. Even assuming that there was a discal injury and sciatic radiation as a result of the injury on 24 April 2018 this does not affect the opinion of Dr Guirgis that the applicant developed an acute left lumbosciatic syndrome following the injury on 8 March 2021. As previously discussed the treating medical records incident that the incident on 8 March 2021 led to a significant increase in symptoms particularly relevantly in the left leg and the need for pain relieving medication. Whilst the comparison of the radiological investigations from before and after the 8 March 2021 incident may have been of some relevance the increase in the symptomatology with the 8 March 2021 incident cannot be ignored.
The respondent also submits that Dr Guirgis has not addressed the question of liability for the surgery proposed by Dr Perotti. Dr Perotti did not report on the applicant recommending surgery until after Dr Guirgis had provided his report. It is true that no supplementary report is in evidence from Dr Guirgis directly dealing with the issue of liability for the proposed surgery however Dr Guirgis did provide an opinion on liability finding that on the balance of probabilities the injury sustained on 8 March 2021 was and remains a substantial contributing factor to the applicant’s symptoms, signs, incapacities and disabilities. Dr Guirgis also agreed with the conclusion of Dr Sheehy who is of the opinion that the applicant required surgical decompression of the L5 nerve.
The respondent relies on the opinions of Dr Antoun and Dr Machart in particular.
Dr Antoun is an injury management consultant. On detailed questioning the applicant advised Dr Antoun that his back and left leg pain never settled after the incident in 2018.
Dr Antoun who examined the applicant on 19 May 2022 records that the applicant reported that he was coping again with his symptoms and current duties until three weeks prior when he had a "flare up" for no known reason. The applicant confirmed experiencing a baseline of back pain with the left leg since the April 2018 incident.
Dr Antoun found no true clinical neurological deficit on examination. The doctor is of the opinion that the reported symptoms and clinical signs appeared to be consistent with facet joint pathology on the left side. The doctor suspected that the symptoms had returned to their pre-incident base line.
Dr Antoun is of the opinion that the incident in April 2018 appears to be the most substantial cause to the back injury, as that original mechanism of injury described appeared more traumatic in nature than simply stepping down from a bus. The applicant described ongoing persistent symptoms since the April 2018 injury and Dr Antoun suspects there was only a minor exacerbation of symptoms which are more consistent with degenerative facet pathology. The doctor suspected that any exacerbation of symptoms from the subject incident had resolved “long ago”. In the doctor’s opinion the flare up which the applicant was experiencing at the time of the examination with no event, was due to the progressive nature of the degenerative spinal disease.
I prefer the opinions of Dr Guirgis, Dr Sheehy and Dr Machart to the opinion of Dr Antoun for the following reasons.
Based on his examination Dr Antoun found no true clinical neurological deficit and was of the opinion that the reported symptoms and clinical signs appeared to be consistent with facet joint pathology on the left side. I do not accept this finding of Dr Antoun. The radiology clearly supports the existence of neural compression. The MRI performed of the lumbar spine on
26 March 2021 is reported as displaying likely impingement of the L5 nerve root at the lateral recess, neuroforaminal exit narrowing with likely abutment / impingement of the exiting left L3, L4 and L5 nerve roots and facet joint pathology. On 1 August 2022 a further MRI was performed which is reported as displaying disc bulges at L4/5 and L5/S1 with extruded components extending into the left L4/5 and L5/S1 neural exit foramina and L4/5 moderate facet arthropathy. These changes were causing severe neural exit foraminal stenosis with compression of the left L4 and L5 nerve roots.
The expert evidence from the neuro and orthopaedic surgeons all supports that the applicant is suffering from symptoms caused by neural compression. The neurosurgeon, Dr Parkinson, is of the opinion that the applicant requires decompression of the left L4 and L5 nerve roots. Dr Vanessa Perotti has recommended an L4/5 discectomy and L5/S1 foraminotomy on the left side which in the doctor’s opinion should be viewed as urgent as the applicant was in significant pain and due to nerve damage. Dr Sheehy diagnoses compression of the left L5 nerve root due to disc disruption at the L4/5 level and a tight neural exit foramen at L5/S1 and is of the opinion that the symptoms were not due to a chronic degenerative condition but rather to a disruption of the L4/5 disc with compression of the L5 nerve root. Dr Machart agrees with Dr Parkinson’s diagnosis of L4/5 disc protrusion causing compression of the left L5 nerve root.
Dr Antoun suspected that the applicant had returned to his pre-injury baseline of symptoms and opined that the incident in April 2018 appears to be the most substantial cause of the back injury, as the original mechanism of injury appeared more traumatic than “simply stepping off a bus”. Dr Antoun in reaching his opinion does not refer to the change in the applicant’s symptomatology following the incident on 8 March 2021 furthermore the incident involved more than simply stepping off a bus with the applicant missing his step and commencing to fall which he arrested but which jarred his back.
The applicant having only suffered a minor exacerbation of symptoms more consistent with degenerative facet joint pathology is not supported by the clinical records which show as previously discussed a significant change in the applicant’s condition with Panadeine Forte being repeatedly prescribed, the applicant ceasing work, the applicant being referred to a spinal surgeon and within approximately one month spinal surgery being recommended.
Dr Antoun suspects that the exacerbation, which he described as minor, as having resolved “long ago” yet the applicant continued to be intermittently prescribed Panadeine Forte a prescription that was only given twice between 24 April 2018 and 8 March 2021 and surgery has been recommended for his condition which had not been recommended prior to
8 March 2021.
Dr Antoun records that the applicant reported that his symptoms never settled following the injury on 24 April 2018. The clinical records support that the applicant had ongoing symptoms following the injury on 24 April 2018 however those symptoms were far less severe than the symptoms which the applicant has experienced following the injury on
8 March 2021.
The respondent submits that Dr Antoun’s history and conclusion that the applicant was getting better after the 8 March 2021 injury and that the 2018 injury was the more substantial cause of the back pathology and symptoms with the subject injury on 8 March 2021 only causing a minor exacerbation is consistent with the history recorded in the GP clinical notes between March 2021 and June 2022. In support of this submission the respondent observed that the when the applicant presented to Dr Schindler on 27 March 2021 he complained of left sided back pain with there being no recorded complaint of left leg pain. The respondent submits that complaint, and an earlier complaint of low back pain and left leg pain on
15 March 2021 is consistent with the complaints made by the applicant prior to the injury on 8 March 2021.
I do not accept this submission for the following reasons. On 25 March 2021 the applicant attended on Dr Schindler requesting pain relief and was prescribed Panadeine Forte. The reason for the attendance is recorded as back pain. When the applicant attended on
Dr Schindler on 27 March 2021 it was to discuss the MRI results and the applicant was referred to Dr Parkinson presumably due to the MRI findings and the nature of the applicant’s symptoms. On 1 April 2021 the applicant attends on Dr Schindler with the reason for contact being recorded as lumbar disc prolapse and the applicant is provided with a further prescription for Panadeine Forte. Dr Parkinson who reported on the applicant on
12 April 2021 noted on examination that the applicant had a very antalgic gait with partial foot drop, clear weakness in the left lower limb with some loss of sensation over part of the shin and great toe and recommended surgery. On 15 April 2021 Dr Schindler advised the applicant to go ahead with the surgery recommended by Dr Parkinson and prescribed further Panadeine Forte. The applicant continued to be prescribed Panadeine Forte and issued with Workcover certificates. Dr Machart who reported on the applicant on 25 October 2022 was of the opinion that it was not in the interest of public safety for the applicant to return to bus driving.

Whilst there may have been some settling of the applicant’s symptoms following the injury on 8 March 2021 the medical evidence does not support that the condition returned to its pre
8 March 2021 level.
Dr Frank Machart provided a medico-legal report for the respondent dated 25 October 2022. Dr Machart took a history of the applicant having sustained injury to his low back in the incident on 24 April 2018. The doctor took a history that the symptoms from that incident did not resolve completely. He experienced pain when sitting. He had no sciatic symptoms.
Dr Machart recorded that the applicant was managing the job with the respondent reasonably well but was not totally symptom free, requiring analgesics. The doctor opined that the difference between the pre and post 8 March 2021 back condition is that the severity of the condition had increased, and in addition there is now sciatic pain in the left leg. The pain failed to resolve with physiotherapy and steroid injections. Dr Machart noted that the applicant had been reviewed by the neurosurgeon, Dr Parkinson, who had recommended an operation.
Dr Machart noted that the applicant was continuing in his employment with the respondent working five hours per week but was not doing the driving.
Dr Machart agreed with Dr Parkinson’s diagnosis of L4/5 disc protrusion causing compression of the left L5 nerve root, requiring decompression related to the subject injury on 8 March 2021.
Dr Machart is of the opinion that the impact of the subject injury on 8 March 2021 is an increase in lumbar pain due to injury to the L4/5 disc pre-existing to radiculopathy at L4/5, extension of existing disc pathology to disc prolapse. The doctor observed that conservative treatment had failed to relieve the symptoms sufficiently and is of the opinion that it is reasonable to offer surgery in the form of lumbar discectomy.
Dr Machart observed that the information about the degree of back pain and radicular pain that was caused by the April 2018 is conflicting. The doctor observed that the symptoms from that injury did not resolve completely. Dr Machart noted that he was given a history that the true sciatic neurologically based symptoms followed the subject injury on 8 March 2021. The doctor observed that the picture is confusing as to the severity of the pain and location of the pain prior to injury being sustained on 8 March 2021. In the doctor’s opinion a careful examination of the documentation pertaining to the period between 2018 and 2021 would be necessary to obtain a clear picture. In the absence of additional information, Dr Machart concluded that there was aggravation from the injury on 8 March 2021, which caused radiculopathy, to the extent of now requiring surgery.
In the opinion of Dr Machart the opinion of Dr Antoun that the exacerbation of symptoms "would have resolved long ago" is a hypothetical. There was disc pathology prior to the injury on 8 March 2021. This may or may not have caused radiculopathy. The radiculopathy is now more severe, to the extent of needing surgery, there was no information that there was any recommendation for surgery prior to the subject injury. Dr Machart did not agree with
Dr Antoun on the hypothetical that the injury on 8 March 2021 would have resolved long ago.
Dr Machart was of the opinion that it was not in the interest of public safety for the applicant to return to bus driving.
The respondent submits that Dr Machart was given an inaccurate history of the applicant’s symptoms following the injury on 24 April 2018 in that the applicant reported to Dr Machart that he only experienced low back pain with no sciatic symptoms following the injury. Whilst it is correct that that the doctor only recorded a history of lower back pain when recording the history, the doctor had however reviewed the report of Dr Sheehy dated 3 November 2021 and noted that Dr Sheehy had taken a history of back, left buttock and posterior thigh pain following the injury on 24 April 2018.
Dr Machart also appears to have been clearly aware that there may have been left leg symptoms following the injury on 24 April 2018 as when providing his diagnosis he noted that there was conflicting information about the degree of radicular pain caused by the injury on 24 April 2018 observing that the picture in respect to the severity of the pain and its location could only be resolved by careful examination of documentation pertaining to the period between 2018 and 2021. As noted above the clinical records for that period rarely refer to leg symptoms.
The respondent submits that Dr Machart does not support a conclusion that the radicular symptoms were caused by the injury on 8 March 2021. This is not entirely accurate with
Dr Machart stating “There was disc pathology prior to the injury in 2021. This may or may not have caused radiculopathy. Radiculopathy is now severe, to the extent of needing surgery.” Dr Machart is therefore uncertain as to whether the radiculopathy was present prior to the injury on 24 April 2018 but in his opinion that is essentially irrelevant as it is now more severe to the extent of needing surgery.
The clinical medical records support that the radiculopathy has been more severe since the injury on 8 March 2021 and I accept the opinion of Dr Machart.
Dr Sheehy in his report dated 19 July 2021 took a history from the applicant that in the subject incident on 8 March 2021 he sustained a twisting injury to his back developing pain in his left buttock. Within hours there was a lot of pain radiating into the buttock and further into the leg and he was unable to stand. The pain was particularly severe that evening.
Dr Sheehy recorded a history that the applicant had previously sustained injury on
24 April 2018 when he slipped in a workshop on an oily floor whilst working for Hyundai at Castle Hill. He suffered pain in his left buttock and posterior thigh. He lost no time from work following that injury. The pain was calmed although he was required to sit on a high stool at work and was only able to stay working for a period of months after that injury when he resigned as the stool was exacerbating his left leg pain.
Dr Sheehy diagnosed compression of the left L5 nerve root due to disc disruption at the L4/5 level and a tight neural exit foramen at L5/S1.
Dr Sheehy observed that the previous history is of back and left buttock pain which improved to some extent. He had been able to work satisfactorily for 2½ years with the respondent driving buses and undertaking aged care activities with the residents before the injury on
8 March 2021 which caused an exacerbation. Whilst the applicant developed left sided sciatic pain with the earlier injury on 24 April 2018 this improved significantly enabling him to undertake gainful employment.
The doctor is of the opinion that the subject injury on 8 March 2021 was an acute injury prior to which the applicant had been minimally symptomatic. The doctor was of the opinion, on the balance of probabilities, that the applicant had suffered an aggravation of a pre-existing injury and observed that the aggravation would not cease until the nerve root had been decompressed.
The doctor is of the opinion that the applicant requires a semi-urgent decompression of his left L5 nerve in view of the significant weakness affecting the L5 myotomes. This would involve removing the disrupted section of his L4/5 disc and ensuring that the L5 nerve root exits freely through the foramen at L5/S1. In Dr Sheehy’s opinion the surgery is required for a recent injury to the L5 nerve as he had been virtually asymptomatic and able to undertake all of his work duties for 2½ years with the respondent until the subject injury on 8 March 2021.
The doctor was of the opinion that there was no alternative treatment and that the L5 decompression was required as soon as possible.
Dr Sheehy in his report dated 3 November 2021 recorded that the applicant had been well prior to the subject incident on 8 March 2021 without significant pain.
The doctor is of the opinion that an MRI scan undertaken following the incident demonstrated compression of the L5 nerve root.
Dr Sheehy observed that the applicant had sustained an injury to his low back in 2018 from which he made a good recovery and was able to work as a bus driver for 2½ years with the respondent. In the doctor’s opinion the symptoms were not occurring as a chronic degenerative condition but rather to a disruption of the L4/5 disc with compression of the L5 nerve root. The findings of nerve root compression were acute.
Dr Sheehy is of the opinion that the reported mechanism of injury is consistent with the symptoms and diagnosis. In coming to his opinion, the doctor observed that the applicant had significantly recovered following his earlier injury in 2018 although he had left that employment as he was unable to sit for prolonged periods. He had become more able to sit and had been operating a bus for 2½ years at the time of the subject injury.
Dr Sheehy is of the opinion that the predominant responsibility for the applicant’s condition and the need for surgery rests with the subject injury on 8 March 2021. The doctor observed in coming to this opinion that whilst there had been an earlier injury the applicant had significantly recovered and was able to work for 2½ years. The surgery is not completely related to his current employment but significantly related.
Dr Sheehy is of the opinion that the appropriate treatment is nerve root decompression.
The respondent submits that the opinion of Dr Sheehy is heavily compromised by the doctor not having access to and not considering the radiological investigations undertaken of the lumbar spine prior to the injury on 8 March 2021 and that the doctor relied on an incorrect history that following the injury on 24 April 2018 the applicant’s left sciatic pain significantly improved.
I do not accept the respondent submission for the following reasons. Dr Sheehy records a history that the “pain was calmed” or “improved to some extent” and that the left sciatic pain “significantly improved” which is consistent with the clinical medical records. Dr Sheehy also observed that the applicant was able to satisfactorily undertake his employment duties with the respondent prior to the injury on 8 March 2021. Dr Sheehy is of the opinion that the applicant suffered an aggravation of a pre-existing sciatic injury on 8 March 2021 which is consistent with the clinical medical records.
Dr Sebastian Fung provided a radiological review and report for the respondent dated
8 March 2023. The doctor is of the opinion that it is possible that the incident in 2018 resulted in a disc protrusion in the lower lumbar spine on the left, resulting in loss of disc height at the L4/5 level on the left. The doctor observed that a CT scan of 7 February 2020 showed significant left sided L4/5 and L5/S1 foraminal narrowing, and left L4/5 lateral recess stenosis, which would account for the low back pain and left sided radicular symptoms.
Dr Fung is of the opinion that the CT scan of 11 March 2021, following the subject incident, remained unchanged compared to the CT scan of 7 February 2020.
The doctor surmised that the applicant has had ongoing left lower spondylosis and left sided lower lumbar nerve root irritation and impingement since at least 7 February 2020, and quite possibly this was initiated at the time of the injury in April 2018, although there are no attendant CT or MRI scans to confirm this. In the doctor’s opinion the applicant certainly had by the CT scan of 7 February 2020 sufficient evidence on imaging to account for his left sided radicular pain/sciatica and back pain.
Dr Fung opined that the salient observation in regard to the CT scans of 7 February 2020 and 11 March 2021 was that the scan of 11 March 2021 was largely unchanged. This implied in the doctor’s opinion that, prior to the subject incident on 8 March 2021, the applicant had degeneration of his lumbar spine with left sided nerve impingement at the L4/5 and L5/S1 levels. The doctor concluded that although the subject incident on 8 March 2021 may have exacerbated his symptoms, there was a degenerative cause for left lower back pain and sciatica prior to the subject incident on 8 March 2021.
The respondent submits that in order to determine whether there was any material contribution to the need for surgery it is necessary to compare the pathology demonstrated in the February 2020 CT scan with the investigations performed after the injury. I do not accept this submission. A comparison of the CT scans may show little or no discernible change in the pathology but what is clear from the clinical records is that the applicant suffered a significant symptomatic aggravation on 8 March 2021 which to paraphrase Dr Machart there was disc pathology prior to the injury on 8 March 2021 which may or may not have caused radiculopathy. The radiculopathy is now more severe, to the extent of needing surgery.
The respondent submits that an inference should be drawn from the way that the applicant has dealt with the 2018 injury in his statements that he has sought to downplay the effect of that injury and its ongoing effects. It is true that the applicants first statement made on
20 December 2022 does not refer at all to the injury sustained on 24 April 2018 and that the applicant’s second statement made on 15 February 2023 only briefly refers to the injury. However, I am not of the view that the suggested inference can be drawn. Both statements are extremely brief with the first statement being only one page in length and the second statement only two pages in length. Whilst the statements only briefly deal with the injury sustained on 24 April 2018 they also deal with the subject injury on 8 March 2021 in a similar fashion.
In his statement dated 20 December 2022, in respect to the symptoms as a result of the injury on 8 March 2021, the applicant’s statement is little more than that he “developed acute back pain” within a few hours. He does not refer to the presence of leg symptoms which he clearly had according to the clinical records. He also does not deal with the symptoms after the initial development of the acute back pain.
In his statement made on 15 February 2023 the applicant again states that he developed severe low back pain on 8 March 2021. The applicant again makes no reference to leg symptoms or his symptoms after 8 March 2021, rather the applicant advises that he was diagnosed with a disc prolapse and provides a brief history of the treatment which he received and the surgical recommendations that he had received.
The respondent also submits that the applicant’s failure to provide truthful information to the respondent at the time of completing his application for employment with the respondent effects his credibility as a witness. The respondent submitted that the applicant has failed to provide any reason for his lack of honesty in providing information to the respondent and in the absence of any proper explanation it is not open to the applicant to submit that he did so because he wanted to secure the job.
This submission is inconsistent with the respondent’s subsequent submission that the applicant’s response in the application for employment form in respect to his workers compensation history was consistent with the history taken by Dr Antoun and supports the accuracy of the history obtained by that doctor.
In any event the applicant’s statements are so brief that they contain little evidence of material relevance and no conflicts arise with the applicant’s statement evidence. The respondent appears to acknowledge this in their submissions where at [36] the respondent submits:
“The applicant’s statement evidence fails to properly address the question of the extent (if any) of any exacerbation of the symptoms in his lumbar spine and left leg by comparing his condition in the period between the 2018 Injury and the Injury in March 2021 in any helpful and meaningful way. For that reason the applicant’s submissions have sought to place reliance on the clinical records of the applicant’s GP practice in an effort to demonstrate that the applicant’s symptoms worsened following the Injury in March 2021.”
The clinical medical records support that the applicant had a pre-existing back condition which had caused left leg symptoms. It is essentially irrelevant for present purposes as to whether the left leg symptoms were intermittent or constantly present as the clinical records support that the subject injury sustained on 8 March 2021 caused a significant aggravation of the applicant’s back condition and the associated left leg symptoms. Dr Machart succinctly concluded that there was an aggravation from the injury on 8 March 2021, which caused radiculopathy, to the extent of now requiring surgery. I accept this opinion.

Is the proposed treatment “reasonably necessary”?

I find that the surgery proposed by Dr Perotti is reasonably necessary treatment for the following reasons. Drs Perotti, Parkinson, Guirgis, Sheehy and Machart all agree that the applicant requires decompression surgery. The applicant has undertaken conservative treatment including physiotherapy and CT guided injection to the lumbar spine with little benefit. No alternative treatment has been recommended. The costs of the treatment are not prohibitive. The proposed surgery is of a type that is regularly undertaken in workers compensation matters.

SUMMARY

I find that:
a. within the meaning of s 60 of the 1987 Act the L4/5 discectomy and L5/S1 foraminotomy surgery as recommended by Dr Vanessa Perotti is reasonably necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent on 8 March 2021, and
b. the respondent is to pay pursuant to s 60 of the 1987 Act the costs of and ancillary to the L4/5 discectomy and L5/S1 foraminotomy surgery as recommended by Dr Vanessa Perotti.

[2023] NSWPIC 369

25 July 2023