Lewis v Lewis

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lewis v Lewis & Anor [2024] NSWPIC 590
APPLICANT:	Daniel Lewis
RESPONDENT:	D.E LEWIS & M.A LEWIS
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	21 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for proposed surgery to the lumbar spine namely an anterior cervical discectomy and fusion at C3-4 as a result of the injury on 1 February 2017; Held – the injury on 1 February 2017 made a material contribution to the need for cervical spine surgery proposed and that the medical treatment is reasonably necessary as a result of the injury.
DETERMINATIONS MADE:	The Commission determines: 1. Respondent to pay the applicant’s s 60 expenses in respect of the treatment proposed by Associate Professor Timothy Steel in his report of 20 October 2023, namely, an anterior cervical discectomy and fusion at C3-4 as a result of the injury on 1 February 2017. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Daniel Lewis, (Mr Lewis) was employed by D.E Lewis & M.A Lewis (the respondent) as a scrap metal assistant. The respondent was insured by Employers Mutual (NSW) Limited (the insurer) at the relevant time.
In the course of his employment on 1 February 2017, Mr Lewis sustained an injury to his cervical spine, thoracic spine and both shoulders when he was operating ratchet straps on a truck.
Mr Lewis made a claim for medical treatment proposed by Associate Professor Timothy Steel in his report of 20 October 2023, namely, an anterior cervical discectomy and fusion at C3/4, as a result of the injury on 1 February 2017.
The respondent disputed liability for the claim for the proposed surgery to the cervical spine.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether Mr Lewis is entitled to the payment of medical expenses and, namely, the treatment proposed by Associate Professor Steel in his report of 20 October 2023 – s 60 of the Workers Compensation Act1987 (the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conciliation conference and arbitration via video link on 10 October 2024. Mr Lewis was represented by Mr Paul Stockley, who was instructed by Mr Dilan Kasturi of LHD Lawyers. The respondent was represented by Mr Paul Rickard, who was instructed by Ms Cherie Tippett of Moray and Agnew Lawyers. Ms Abi O from the insurer also attended the conciliation conference and arbitration.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.

Submissions

The submissions of the parties were recorded and I do not propose to repeat those submissions in full. However, I note the respondent submitted that the proposed surgery by Associate Professor Steel to the cervical spine was not reasonably necessary as the weight of the medical evidence did not support that such surgery was appropriate and reasonably necessary.
Mr Lewis submitted that the earlier reports of treating doctors should be given little weight as his symptoms had not improved and he has failed to respond to conservative treatment. Further, Mr Lewis is in chronic pain and the investigations arranged by Associate Professor Steel in 2023 identified the segment in the cervical spine that is the pain generator. In these circumstances, having identified that pain generator, the proposed surgery is now reasonably necessary in order to alleviate Mr Lewis’ pain.

FINDINGS AND REASONS

It was not disputed that Mr Lewis sustained injury to the cervical spine on 1 February 2017.

Evidence of Mr Lewis

In a statement dated 9 August 24, Mr Lewis said that he was employed by the respondent as a scrap metal assistant. He said that his duties included heavy manual labour. Mr Lewis stated that on 1 February 2017 he was operating ratchet straps on a truck when he felt a sharp pain and “pop” in his neck and upper back.
Mr Lewis stated that he did not seek medical treatment straight away as he thought that the pain would go away and he “just dealt with it”. He said that the pain “got to the point where it got too much” and he consulted his general practitioner (GP), Dr Lucy Rees. Mr Lewis said that he underwent a CT scan and X-ray of the cervical spine on 18 May 2027 after which he was referred for physiotherapy and prescribed anti-inflammatories.
Mr Lewis stated that he was referred to Dr Peter Spittaler, neurosurgeon, on 5 July 2017. He said Dr Spittaler reviewed the scans and opined that surgery was not indicated. Mr Lewis said that he saw Dr Spittaler again on 10 August 2017 after he had an MRI scan and Dr Spittaler advised that surgery was unlikely to help his symptoms and he should avoid heavy work.
Mr Lewis stated that he was then referred to Dr Prickett, pain specialist, who saw him on 14 March 2018. Mr Lewis said that on 4 September 2018 he underwent a cervical facet joint block test, which did not provide any relief. Dr Prickett then referred Mr Lewis for psychological treatment to manage the ongoing pain.
Mr Lewis stated that on 18 September 2018 he saw Dr Robert Kuru, spinal surgeon. He said that Dr Kuru expressed the opinion that the CT scan and MRI scan showed minor foraminal stenosis on the left at the C3/4 level and there was no significant compromise of the neural foraminae. Dr Kuru expressed the opinion that Mr Lewis had non-specific neck pain presumably related to his underlying degenerative disease. He also assured Mr Lewis that his spine was structurally stable and discussed with him an exercise-based rehabilitation program. Mr Lewis said that Dr Kuru did not consider that any further investigations or surgical intervention would be helpful for his then symptoms and the only other treatment option would be continuing with some targeted cervical blocks and perhaps a radiofrequency ablation should a focal pain generator be isolated.
Mr Lewis stated that he continued to consult Dr Prickett and his clinical psychologist. He said that on 19 November 2021 he underwent a bone scan and on 6 December 2021 he underwent a CT guided left C3/4 foraminal injection.
Mr Lewis stated that in February 2022 he saw Dr Vanessa Sammons, neurosurgeon, who referred him for an L3/4 foraminal injection on the left that was done by CT guidance. He stated that this injection did not provide him with any pain relief. He said Dr Sammons expressed the opinion that his pain was muscular, and was not concerned about his spinal cord nor the nerve roots. She said that his pain was mainly resulting from degenerative changes in his cervical spine and the most effective treatment would be strengthening and lengthening his neck muscles.
Mr Lewis stated that on 14 June 2022 he saw Dr Richard Ferch, neurosurgeon, as his symptoms continued to deteriorate and he was experiencing pain radiating from the left side of his neck over his shoulder and to his arms. Dr Ferch reviewed his recent cervical spine MRI and bone scans and said the foraminal stenosis was not particularly severe but was enough to irritate the existing C4 nerve root. Mr Lewis said that Dr Ferch recommended a transforaminal steroid injection which he had undergone in the past but was willing to try again. Mr Lewis stated that Dr Ferch expressed the opinion that there was no current threat to his spinal cord and the nerves elsewhere were not compromised.
Mr Lewis stated that he first consulted with Associate Professor Timothy Steel on 3 July 2023. He said that Professor Steel took a history of his injury, and he explained to Associate Professor Steel the significant pain he was experiencing on the left side of his neck which radiates into the left arm around the bicep. Professor Steel reviewed the imaging and was initially unsure what was causing him so much pain and organised a technetium bone scan and diagnostic quality CT scan.
Mr Lewis stated that on 13 September 2023, he underwent a CT scan of the cervical spine and a bone scan of the whole body.
Mr Lewis stated that on 20 October 2023, he attended Professor Steel’s rooms to discuss the results of the investigations. He said that Professor Steel spent some time with him discussing the options for treatment and noted that it had been more than six years since he injured his neck. Mr Lewis said that Professor Steel expressed the opinion that the pain he was experiencing was likely originating from the C3/4 disc and that the most certain surgical procedure would be an anterior cervical discectomy and fusion at both the C3/4 and C4/5 levels. Mr Lewis stated that Professor Steel later recommended he do only the C3/4 level because it would be less invasive and the most likely the cause of his symptoms.
Mr Lewis stated that he understood the risks of proceeding with the surgery recommended by Professor Steel. Mr Lewis agreed with Professor Steel that the most appropriate option for him was to proceed with a fusion surgery at the C3/4 level. Mr Lewis stated that he wished to undergo the recommended surgery with Professor Steel because he wanted to return to some normality, live a more pain-free life and return to work. He said that he had worked all of his life and work provided him with a feeling of self-worth. Mr Lewis said that he was “desperately in need of the surgery”, and he organised to be placed on the public waiting list so he can undergo it, but would much rather undergo such a major surgery at the hands of Professor Steel.
Mr Lewis stated that he continued to do anything to relieve his pain, performed stretches, went for walks, used a heat and ice packs, and muscle creams. He said that the medication he was currently taking is one 20/10mg tablet of Targin, twice per day, and four 500/30mg tablets of Paracetamol/Codeine. He stated that when his pain was significantly bad, he also took Ibuprofen.

Medico-legal reports

In a report dated 22 December 2023, Dr Vidyasagar Casikar, consultant neurosurgeon, noted that the telehealth consultation with Mr Lewis started at 12.00pm and finished at 12.26pm. Dr Casikar took a history of an incident on 1 February 2027 when Mr Lewis was fixing ratchet straps on a truck and pulled one “a little harder and he developed pain in the left shoulder blade and between the middle of the thoracic spine.” Dr Casikar reported that one week later Mr Lewis developed tingling on the left side of the neck which “shoots up to the head”. On examination, Dr Casikar reported that the movements of the neck were normal in all directions. He noted that the self-examination of the nervous system did not indicate any dematomal hypothesia. Dr Casikar wrote: “In my opinion the telehealth consultation makes it difficult to establish a neurological problem. There was some suggestion of a bilateral carpal tunnel condition.”
Dr Casikar referred to the Desktop Investigation Report of Lee Kelly Investigations and wrote:
“Lee Kelly indicates that Mr Lewis has no disability. He has been functioning very easily including doing repair jobs for his wife’s salon and fishing and various social activities. These indicate that the disability he claims is not sustainable. In my opinion, he has recovered completely from the injury. He is fit to resume his pre-injury duties. With the information available from Lee Kelly investigations, he does not require any further investigations and the surgery suggested by Dr Steel. Perhaps Dr Steel has not seen the Facebook pictures of his activities. If he is provided with these reports, I am sure he would also not indicate any surgical treatment”.
Dr Casikar referred to the MRI cervical spine report dated 7 February 2023 in which the radiologist reports multi-segment moderate age related degenerative changes. Dr Casikar considered that there is no evidence of any specific injury which would explain his complaints. He considered that there was no evidence of any specific lesion in relation to the injury of 2017 and the radiologist’s report merely indicated normal age related changes.
Dr Casikar concluded that based on the clinical examination and review of the attached correspondence Mr Lewis did not appear to have any injury following the incident in 2017 and his extracurricular activities clearly indicated that he did not have any symptoms related to this injury. He expressed the opinion that Mr Lewis has recovered from the injury that occurred in 2017 and was fit for pre-injury work based on the Facebook reports.
Dr Casikar was of the view that the diagnosis was probably a soft tissue injury to the shoulder and this was consistent with the reported mechanism of injury. He considered that Mr Lewis’s presentation was inconsistent with the reported symptoms and the level of incapacity, and the Facebook pictures clearly indicated that he has a very active social life with no evidence of disability.
In considering whether the proposed C3/3 discectomy and fusion was reasonably necessary for Mr Lewis’s work related condition, Dr Casikar wrote:
“I find it very difficult to support a C3/4 discectomy and cervical fusion suggested by Dr Steel. Dr Sammons the neurosurgeon and Dr Spittaler have both indicated that there is no indication for surgery.”
Dr Casikar considered that he findings of the investigations did not support surgical intervention. Dr Casikar stated that the surgery does not have the capacity to relieve the effects of his current symptoms.
Dr Casikar considered that the alternative treatment would be to encourage Mr Lewis to get back to his pre-injury duties. He was of the view that further investigations were not indicated.
Dr Casikar concluded that there were significant inconsistencies between the reported symptoms and his level of incapacity and the objectively identified pathology.

Reports of treating medical practitioners

In a report dated 5 July 2017, Dr Peter Spittaler, treating neurosurgeon, noted that Mr Lewis was tightening a rachet strap when he developed sharp neck pain and mid thoracic pain. Dr Spittaler reported that the thoracic pain had resolved but Mr Lewis had ongoing cervical pain but no arm symptoms and was working normally. Treatment involved physiotherapy twice a week, anti-inflammatories and Tramadol and Codalgin daily. On examination, Dr Spittaler noted mild pain on extension and rotation of the cervical spine to the left in the upper cervical region. Dr Spittaler thought that the CT scan of the cervical spine was within normal limits.
Dr Spittaler thought it was “unlikely surgery will be indicated”. He referred Mr Lewis for an MRI of the cervical spine but suspected the next step would be referral to a pain clinic. Dr Spittaler suggested to Mr Lewis that the heavy work that he did was likely to be escalating his symptoms.
In a report dated 10 August 2017, Dr Spittaler noted that the MRI demonstrated degeneration of the C3/4 and C4/5 discs with osteophyte formation but there was no cord compression and no significant foraminal narrowing. Dr Spittaler wrote: “I advised Daniel that surgery was unlikely to help his symptoms. Really the key to this is Daniel avoiding heavy work and lifting to try and minimise his symptoms”.
In a report dated 14 March 2018, Dr John Prickett, specialist pain management physician, noted that Mr Lewis had some ongoing left-sided neck pain with a significant element of protective muscle spasming. He reported that Mr Lewis felt his medications gave him approximately 30-40% improvement in pain but his pain ranged from 2 to 6/10. Dr Prickett referred Mr Lewis to Dr Kemp to discuss surgical options concerning pathology around the shoulder girdle.
Dr Prickett wrote:
“He presented with a CT scan and MRI as well as reports from Peter Spittaler. This confirmed the presence of mild cervical spondylosis but a stable spine without any gross evidence of central or foraminal compromise. He had been reassured by Peter Spittaler that there were no surgical treatments that were necessary or likely to change his clinical presentation or situation.”
In a referral dated 31 May 2018 to Dr Ro Kuru, Dr Prickett noted that Mr Lewis had been been reviewed by a colleague who felt that a non-operative course was warranted, however Mr Lewis was keen to get a second opinion as to the role of surgery from both a safety and stability point of view as well as a pain reduction option. Dr Prickett noted that Mr Lewis was desperate to move on with his life and get into more regular paid employment.
In a report dated 18 September 2018, Dr Rob Kuru, treating spinal surgeon, noted that Mr Lewis described no radiation of pain down to his upper limb or around his chest wall. He noted that over the last 12 months Mr Lewis felt as though he was getting stiffening in the muscles in the right hand side of his neck. Dr Kuru reported that treatment included physiotherapy, multiple injections into his neck, which had not helped and Panadeine Forte.
Dr Kuru noted that imaging of his neck demonstrated some minor background degenerative changes with some minor foraminal stenosis on the left at C3/4 but otherwise no significant compromise of the neural foraminae. Dr Kuru was of the opinion that Mr Lewis had non specific neck pain presumably related to his underlying degenerative disease. He reassured Mr Lewis that his spine was structurally stable and he could be active within the tolerance of his symptoms. He discussed an exercise based rehabilitation program consisting of regular aerobic exercise (walking, cycling, swimming) in conjunction with a flexibility based exercise program for his neck (yoga, Pilates, circuit training). Dr Kuru noted that it was appropriate for Mr Lewis use simple analgesics as tolerated. Dr Kuru wrote:
“I think it highly unlikely that further investigation or surgical intervention would be reliably helpful for his current symptoms. The other option is continuing with some targeted cervical blocks and perhaps a radiofrequency ablation should a focal pain generator be isolated”.
In an MRI Cervical Scan Report dated 6 October 2021, Dr Keira Schelz, consultant radiologist, noted a history including neck pain and previous paraesthesia in the left arm. She concluded: “Mild multilevel degenerative disc pathology with mild to moderate canal stenosis at C4/C5 and C5/C6. There is foraminal narrowing on the left, most severe at C3-C4”.
In a Bone Scan Report dated 19 November 2021, Dr Christian Acksteiner, consultant radiologist, made the following findings:
“Findings:
Flow and blood pool images do not demonstrate significant focal hypervascularity or
hyperaemia in the cervical spine.
No significant degenerative uptake in the facet joints of the cervical spine. There is mild to moderate degenerative uptake at the endplates of C3-C4, in slightly less pronounced at C6-C7….
Comment:
No significant avid facet joint arthropathy in the cervical spine”.
In a report dated 11 February 2022, Dr Vanessa Sammons, treating neurosurgeon, made a provisional diagnosis of neck pain of uncertain aetiology. She noted that Mr Lewis had quite severe neck pain and occasionally left arm pain. Dr Sammons noted that she had sent Mr Lewis for an L3/4 [sic] foraminal injection on the left that was done by CT guidance but that did not have any effect on his pain. She noted that Mr Lewis’ major complaint was neck pain, which is very interfering with his everyday life, and occasionally pain that extended over the left shoulder more in a “C5 distribution than anything else”. She reported that he had no motor weakness and no paraesthesia or numbness.

Dr Sammons noted that the investigations included an MRI cervical spine which showed loss of the “normal cervical lordosis with quite a straight spine and some degenerative changes but no significant central canal stenosis nor significant foraminal stenoses”. She reported that there were some foraminal stenoses described by the radiologist but these were mild and nerve roots appeared unimpinged. She noted that a bone scan showed no facet arthropathy.
Dr Sammons concluded that Mr Lewis’ pain was muscular. She stated that she was not concerned about his spinal cord nor the nerve roots and did not think he had a myelopathy or cervical radiculopathy. She noted that the bone scan effectively excluded a facet arthropathy.
Dr Sammons thought that Mr Lewis’ pain was mostly the result of some degenerative changes and his straight cervical spine. She considered that the most effective management would be strengthening and lengthening of his neck muscles and yoga and Pilates could be quite useful for him as well as maintaining a good posture to try and best distribute the loads through the cervical spine. Dr Sammons did not think that there was anything concerning from a neuraxis point of view notwithstanding the pain that Mr Lewis experienced.
In a report dated 14 June 2022, Dr Richard Ferch, treating neurosurgeon and spinal surgeon, noted that Mr Lewis had a long history of symptoms relating to his neck and in the last 12 months had become increasingly limited by pain radiating from the left side of his neck, over his shoulder. He noted that Mr Lewis also experienced pain around both shoulders that radiated into his arms and the symptoms were associated with a feeling of numbness and tingling affecting his hands. Dr Ferch noted that Mr Lewis rated his typical neck pain at 6/10 and upper limb pain at 5/10. He noted that Mr Lewis was being treated for depression.
On examination, Dr Ferch noted a mild restriction of movement about the neck with neck movement precipitating neck pain only. Neurological examination revealed normal tone and power with brisk symmetrical reflexes. Dr Ferch noted that the recent cervical spine MRI scan and bones scan confirmed degenerative change at C3/4 level where there was some left sided foraminal narrowing. He expressed the view that the foraminal stenosis was not particularly severe but might be enough to irritate the exiting C4 nerve root and a transforaminal steroid injection could be of benefit.
Dr Ferch wrote: “Daniel has no current threat to his spinal cord and the nerves elsewhere are not compromised. I have reassured Daniel is it (sic) safe to be active about his neck and we have discussed the benefits of a posture based exercise program.”
In a report dated 8 November 2022, Dr Ferch noted that Mr Lewis remained limited by persistent neck pain. He wrote: “I have explained to him that this is unlikely to respond to surgery. Daniel could well benefit from review through a chronic pain specialist and I would support him seeing Dr John Prickett.”
In a report dated 3 July 2023, Associate Professor Timothy Steel, treating neurosurgeon and spinal surgeon, noted Mr Lewis injured his neck on 1 February 2017 and had symptoms present since that time. He wrote:
“He now reports significant pain on the left side of the neck in the spinalis region. The pain radiates into the left arm to around the area of the biceps. He rates the pain as a 7. He is no longer able to work. Activity brings on pain. Sitting and lying down alleviate it. He takes Panadeine Forte 2 tablets x 3 a day and Targin 15/7.5 x 2 a day. He is also on Baclofen, which he has been given for muscle spasm.”
On examination, Associate Professor Steel noted:
“There is no focal motor deficit in his upper extremities, no clinical evidence of a myelopathy. Range of movement of his spine is slightly reduced in lateral rotation and extension, which precipitated pain. He was mildly tender over the anterior aspect of the left shoulder, but range of movement was normal.
He had physiotherapy three to six months ago, which brought no lasting benefit”.
Associate Professor Steel stated that it was not clear “as to the exact pain generator” and he referred Mr Lewis for a technetium bone scan and diagnostic quality CT scan. Associate Professor Steel wrote:
“The bone scan will give us information about the facet joints. At his age, 46, he is too young to have developed significant arthritic degeneration, so the bone scan should be normal. If it does show increased uptake in the facet joints or discovertebral levels, almost certainly this would be symptomatic.
The cervical spine CT scan will also help better outline the bone anatomy”.
In the report of CT cervical spine scan dated 13 September 2023, Dr Andrew Csillag, consultant radiologist, commented:
“No significant facet arthropathy.
C-4 disc degeneration with a posterior disc/ridge complex, moderate uncovertebral
degenerative change, mild left C4 degenerative foraminal narrowing but no significant central canal stenosis.
Mild C4-5 disc degeneration without evidence of compressive neural lesion.
Mild C6-7 discovertebral degenerative change without compressive neural lesion”.
In the report of a Nuclear Medicine – Bone Scan Whole Body with SPECT/CT dated 13 September 2023, Dr Nicholas Pocock, consultant radiologist, made the following findings:
“Findings:
There was no abnormal vascularity in the dynamic or blood pool images.
In the delayed images there are no significant focal abnormalities.
On the SPECT CT there was slight irregular uptake in the cervical spine with slightly with more intense (sic) uptake into the C3/C4 intervertebral disc,
There was no focal uptake into cervical spine facet joints.
Arthritic changes are also noted in the shoulders.
Conclusions
1. Cervical spine disc degeneration with the most active disease at C3/C4.
2. No scan evidence of cervical spine facet joint arthritis”.
In a report dated 2 October 2023, Associate Professor Steel reviewed the imaging studies and noted that the cervical spine CT scan looked relatively unremarkable with some discopathy at C3/4 with a slightly calcified broad based disc bulge but no significant facet joint arthropathy seen on the CT. Associate Professor Steel stated that the alignment was normal and there was no high grade foraminal narrowing at any level. However, Associate Professor Steel noted that nuclear medicine bone scan with CT-SPECT shows significant uptake in the discovertebral level but no uptake in the facet joints. Associate Professor Steel concluded that if the C3-4 discovertebral level is causing ongoing pain, then a C3-4 discectomy and fusion has the potential to alleviate a significant component of the pain.
In a report dated 20 October 2023, Associate Professor Steel noted that he reviewed Mr Lewis on 20 October 2023 and Mr Lewis continued to report significant left sided neck pain with left arm and left shoulder pain. Associate Professor Steel discussed the results of the investigations with Mr Lewis. He wrote:
“I have had a long discussion with him about the various options. It has now been more than six years since he injured his neck. The pain is likely to be arising from either the C3-4 or the C4-5 disc. The most certain surgical procedure would be an anterior cervical discectomy and fusion at both the C3-4 and C4-5 levels…
He would like to proceed with the surgery”.
In a further report dated 20 October 2023, Associate Professor Steel noted that he had another look at everything with the pictures of the CT, the bone scan and the MRI scan. He thought that the C3/4 level is the level is causing the symptoms and that a fusion at C3/4 should be done and not at C4/5.
In a report dated 15 February 2024 to Mr Lewis’ solicitors, Associate Professor Steel made a diagnosis of significant and symptomatic C3/4 discopathy. He expressed the view that the surgical solution to this problem would be a C3/4 anterior cervical discectomy and fusion, which has the potential to alleviate a significant component of his pain.
Associate Professor Steel wrote:
“Without having imaging and examinations both prior to and since the work injury, it is impossible to be 100% certain that Daniel's employment is the main factor in his cervical spine injury. However, he describes onset of pain at the time of the injury which has since relentlessly progressed. He reported no symptoms prior to the work injury and has had constant pain ever since. Clinically, that makes the work injury the most likely cause for his symptoms.
Radiologically, the findings on multiple MRIs and also most recently a bone scan are changes of wear and tear. At 46 years of age, his age related wear and tear changes should be minimal. Despite this, Daniel had disc changes at C3-4 and C4-5 on an MRI cervical spine performed at Hunter Imaging Group on 10 July 2017, which is the earliest post injury MRI I have seen. These findings were found again at a repeat MRI cervical spine, again performed at Hunter Imaging Group on 5 October 2021, and again at the time of his MRI cervical spine at Alto Imaging on 7 February 2023. The changes have slowly progressed and the increased uptake on the bone scan performed at St Vincent's Clinic Medical Imaging on 13 September 2023 shows significant uptake at the C3-4 intervertebral disc. Uptake on technetium bone scans do correlate well with the source of pain.
Traumatic injuries of the cervical spine often appear as early and/or accelerated changes resembling age related wear and tear. A traumatic injury may start the wear and tear process which then progresses in a more rapid fashion than that of general age related wear and tear. Again, without serial imaging, both prior to the injury and since the injury, it is impossible to be 100% certain. However, the findings on the MRI and technetium bone scan fits with his clinical description of onset and progression of pain.
On balancing the probabilities, it is more likely than not that his work injury is a significant cause for his current symptoms.”
Associate Professor Steel noted that C3/4 disc generation causing C3/4 discovertebral arthritis tended to relentlessly progress over time once it has started. He stated that the condition can usually be treated non-surgically, initially with oral analgesia, but because the natural history of disc degeneration is that it will progress over time, these patients usually progress to a point where surgery is needed. Associate Professor Steel wrote:
“The mechanical problem in these cases is not one of nerve or spinal cord compression. Therefore, decompression of nerves and/or spinal cord will not help relieve the pain. A small operation such as a decompression operation will therefore not be sufficient in Daniel's case. The pain generator is the movement of the discovertebral complex and the structural solution to this is to remove movement at this level, ie. fuse this segment.”
Associate Professor Steel recommended Mr Lewis undergo a C3-4 anterior cervical discectomy and fusion because it would remove any movement at the C3-4 level, which once recovered should remove any pain coming from the C3-4 discovertebral complex. He considered that the proposed surgery has a 70% chance of significantly improving Mr Lewis’s symptoms to the point that he would be able to return to the workforce in some capacity. It also had a high likelihood of making him generally more comfortable. He noted that anterior cervical discectomies and fusions are commonly performed operations that most spine surgeons perform.
Associate Professor Steel commented on Dr Casikar’s report dated 22 December 2023, noting that Dr Casikar performed a Telehealth consultation which took 26 minutes. He wrote:
“He describes Mr Lewis developing neck pain on 1 February 2017, where he developed pain in the left shoulder blade region and subsequently into the neck. He does not appear to have asked nor reported on Mr Lewis' current symptoms. He does state in his physical examination that it is ‘difficult to establish a neurological problem on a Telehealth consultation’. He makes the comments in the specific question that ‘he does not have any symptoms relating to this injury’ and subsequently states that it was ‘a soft tissue injury to the shoulder consistent with the mechanism of injury, and that this injury has recovered’. He does not state anything about pain in the neck region, nor pain radiating into the left arm”.
Associate Professor Steel noted that when he saw Mr Lewis, he reported pain that had been present in the left side of his neck and into the shoulder and slightly down the left arm since February 2017, which he rated as an 8. He noted that Mr Lewis was taking Panadeine Forte 2 tablets x 3 8mes a day and Targin 15/7 twice a day and was also on Baclofen. A/P Steel noted Mr Lewis mentioned Facebook activities but said that he had not seen, nor was he aware of what was shown on these Facebook pictures.
Associate Professor Steel stated that Mr Lewis described pain that has now been present for seven years. He was of the view that when Mr Lewis initially saw specialists in 2017, it was quite reasonable at this point to not recommend surgery as his symptoms had been present for less than twelve months and often, patients who have neck pain would improve over one to two years. Associate Professor Steel noted that Mr Lewis had seen multiple specialists over the years and had never improved, had an extensive period of conservative treatment, ie. analgesia, rest, exercise, physiotherapist, Cortisone injections, et cetera, but his symptoms remained the same, persist, and had not improved. Associate Professor Steel noted that Mr Lewis was on a significant amount of medication.
Associate Professor Steel wrote:
“If we accept that there is a structural pain generator in Mr Lewis' neck, which is a reasonable assumption given the chronicity of his pain, usually when patients are young, and Mr Lewis is only 45, it is reasonable to consider a structural solution. The most likely pain generator based on his symptoms is the C3-4 segment and it is reasonable to consider fusion surgery for this.
Mr Lewis describes pain that developed after his injury, which has been present ever since. In general, young patients such as Mr Lewis will have only one pain generator and this is most likely the C3-4 segment.
Dr Casikar has stated that the diagnosis of his injury is a soft tissue injury to the shoulder based on a Telehealth consultation and states the injury is recovered. He is not a shoulder specialist, nor has he reported on any imaging of the shoulder, so it is difficult to see how he can make this assumption. Mr Lewis complains of neck pain, not shoulder pain.
He has not referenced the technetium bone scan, nor the CT scan that I organised last year at St Vincent's Clinic. It would appear that he has not seen them and he certainly has not commented on them.
He has commented only on an MRI cervical spine dated 7 February 2023 and an MRI thoracic spine dated 13 June 2022. I would find it very difficult to make a diagnosis of shoulder pathology without a clinical examination and without an imaging study, eg. an MRI scan.
With regards to his symptoms and his activities on Facebook, it is difficult to make a comment about his level of disability, certainly based on his history given to me, it is concordant with an injury to his neck and I would stand by the surgical recommendation based on the results of the most recent MRI, CT and bone scan”.
The clinical notes of Glendale Medical Centre, contained the following entries:
(a)    in an entry dated 23 June 2023, Dr Shamsuddin noted that Mr Lewis had severe neck pain and seemed to be deteriorating. He noted Mr Lewis was waiting to see Dr Steel.
(b)    In an entry dated 21 July 2023, Dr Shamsuddin noted that Mr Lewis has a “capacity assessment arranged by EML – had persistent neck pain after capacity assessment which involved lifting and bending – feeling particularly low largely due to incapacitating pain – socially withdrawn – pain is subsiding, mood has been lifting – has been walking the dog”.
(c)    In an entry dated 17 August 2023, Dr Shamsuddin noted that “Daniel’s pain has been deteriorating over past 6 weeks”.
(d)    In an entry dated 12 September 2023, Dr Shamsuddin noted “severe neck pain, severe pain after rising (sic) motorbike and mowing lawn”.
(e)    In an entry dated 9 October 2023, Dr Samsuddin noted “limited functioning due to pain”.
(f)    In an entry dated 3 November 2023, Dr Samsuddin noted “limited functioning due to pain”.
(g)    In a second entry dated 3 November 2023, Dr Shamsuddin noted “D/W pharmacist Daniel Toitman medication review.” Dr Samsuddin noted that there would be a follow up with Dr Steel, a look at NSAID use, consideration of referral to a psychologist and “may need to revisit pain specialist if surgery is ineffective “.
(h)    In an entry dated 10 November 2023, Dr Samsuddin noted “ongoing neck pain gradually worsening”.
(i)    In an entry dated 28 November 2023, Dr Samsuddin noted “ongoing neck pain gradually worsening .. report severe pain debilitating limited function and poor sleep.”
(j)    In an entry dated 22 December 2023, Dr Samsuddin noted that Dr Steel had proposed surgery. he wrote “ongoing neck pain gradually worsening …had episode of severe neck pain on turning neck lasted several days.”
(k)    In an entry dated 19 January 2024, Dr Samsuddin noted: “Ongoing neck pain gradually worsening...ongoing severe neck pain spending most time at home spending most time on couch and bed leave house on occasion for mental health eg fishing (however he suffers aggravation of pain soon after).”
(l)    In an entry dated 30 January 2024, Dr Samsuddin noted “neck pain has been worsening over the past few months pain is alleviated with neck flexion.”

Desktop Investigation Report

Mr Andrew Hannigan of Lee Kelly Investigations, in a Desktop Investigation Report dated 30 November 2023, noted online material relating to Mr Lewis and his wife had been accessed, including photographs posted between 5 October 2019 and 12 November 2023. Mr Rickard made no submissions concerning this material apart from stating that Dr Casikar had reviewed the material and based his opinion on this investigation report as well as the MRI report of 7 February 2023 and opinions of Dr Sammons and Dr Spittaler.
The report attached various photographs of Mr Lewis fishing, a Christmas celebration, attending a musical, at a shopping centre, riding a trail bike, attending a music festival, going to the beach with his son, sitting on a stationary toboggan and installing a basin at his wife’s place of work. These photographs were taken over a period of four years.
There were also two short video clips that had been uploaded, the first showing Mr Lewis at the beach with his son, and the second, a very short clip of some horseplay involving a hose around a raised pool outside a house. The report noted that the visit to the beach occurred on 10 January 2021, however, it is not clear from the report when the other video was taken.

Discussion

The matter to be determined is whether the surgery proposed by Associate Professor Steel, namely, an anterior cervical discectomy and fusion at C3/4 is reasonably necessary as a result of the injury to the cervical spine on 1 February 2017.
The respondent argued that both Dr Sammons and Associate Professor Steel had available to them bone scans which were almost identical in terms of their findings, yet Dr Sammons had recommended yoga and pilates as treatment, while Associate Professor Steel proposed anterior cervical discectomy and fusion at C3/4.
The first issue to determine in whether the injury to Mr Lewis’ cervical spine has resolved.
The respondent relied on the report of Dr Casikar. Dr Casikar expressed the opinion that based on the clinical examination and review of the attached correspondence, Mr Lewis did not appear to have any injury following the incident in 2017 and his extracurricular activities clearly indicated that he does not have any symptoms related to this injury. He concluded that Mr Lewis has recovered from the injury that occurred in 2017 and was fit for pre-injury work based on the Facebook reports.

Dr Casikar is the only doctor to express the opinion that Mr Lewis’ injury to the cervical spine had resolved.
Dr Spittaler saw Mr Lewis in 2017 and noted Mr Lewis was having physiotherapy and taking anti-inflammatories. Dr Spittaler thought that the next step in treatment would be referral for pain management treatment.
Mr Lewis was referred to Dr Prickett for pain management treatment on 21 December 2017. Dr Prickett treated Mr Lewis throughout 2018. On 28 June 2018, Dr Prickett noted that Mr Lewis had ongoing left sided neck pain with strong mechanical descriptors in the setting of cervical spondylosis and had tried appropriate conservative treatments including rest, avoidance, physical therapy, and medication therapies with limited or no significant benefit. Dr Prickett carried a cervical facet joint block test on 4 September 2018 but later noted on 12 September 2018 that the cervical medial branch block testing did not significantly alter Mr Lewis’s pain experience.
Dr Kuru saw Mr Lewis in September 2018 for assessment of non specific pain which he thought was related to underlying degenerative disease. Dr Kuru recommended an exercise based rehabilitation program consisting of regular aerobic exercise (walking, cycling swimming) in conjunction with a flexibility based exercise program for the neck (yoga, pilates, circuit training). Dr Kuru consider simple analgesic be used. A further option recommended by Dr Kuru was targeted cervical blocks and perhaps radiofrequency ablation should a pain generator be isolated.
Dr Sammons saw Mr Lewis in February 2022 and noted that Mr Lewis had quite severe neck pain and occasionally left arm pain. Dr Sammons reported that Mr Lewis’s neck pain was interfering with everyday life and the injection that he recently had did not have any effect on the pain. She noted that the bone scan excluded facet arthropathy. She recommended yoga, pilates and maintaining a good posture.
Dr Ferch saw Mr Lewis in June 2022 and noted that in the last 12 months Mr Lewis had become increasingly limited by pain radiating from the left side of the neck. Dr Ferch noted that Mr Lewis rated his neck pain at 6/10. He considered that the recent cervical spine MRI and bone scan confirmed degenerative change at C3-4 level where there was some left sided foraminal narrowing. Dr Ferch commented that although the foraminal stenosis was not particularly severe it might be enough to irritate the exiting C4 nerve root. Dr Ferch recommended a transforaminal steroid injection at this site. Dr Ferch also discussed the benefits of a posture based exercise program.
Associate Professor Steel first saw Mr Lewis on 3 July 2023 and noted Mr Lewis reported significant pain on the left side of the neck in the spinalis region which radiated into the left arm to around the area of the bicep. Mr Lewis rates the pain to be a 7 out of 10.
Mr Lewis, in his statement dated 9 August 2024, stated that he wished to undergo the recommended surgery from Professor Steel because he wanted to return to some normality, live a more pain-free life and return to work. He said that the medication he was currently taking is one 20/10mg tablet of Targin, twice per day, and four 500/30mg tablets of Paracetamol/Codeine.
Dr Casikar based his opinion on an examination that was carried out through telehealth. Dr Casikar acknowledged that this was not a method of consultation that enable a proper neurological examination. However, there were further problems in Dr Casiker’s report. Firstly, the history that he took of neck pain developing a week after the incident on 1 February 2017 was inconsistent with the history reported by Dr Spittaler, Dr Kuru and Associate Professor Steel. It was also inconsistent with the history set out in Mr Lewis’s statement. Secondly, Dr Casikar took no proper history of current complaints and symptoms and a very inadequate history of the treatment to the cervical spine that Mr Lewis has received since the injury in 2017. Thirdly, Dr Casikar made no reference to the most recent investigations, namely the CT scan of the cervical spine dated 13 September 2023 and the bone scan dated 13 September 2023. Fourthly, the length of the consultation was extremely short considering the history in this matter and proposed treatment. Fifthly, Dr Casiker did not refer to and consider the clinical notes of the general practitioners who had treated Mr Lewis for an extensive time and seen him on regular occasions.
I also considered that Dr Casikar placed undue weight on the Desktop Investigation Report, particularly because the clinical notes of Glendale Medical Practice described Mr Lewis as suffering chronic pain and being severely restricted from a functional perspective.
The Desktop Investigation Report from Lee Kelly Investigations does not, in my view assist, in determining any of the issues in this matter. Mr Lewis does not deny that he goes fishing and tries to engage in activities with his children and family. Indeed, a number of treating doctors, including Dr Kuru, recommended exercise based programs. Dr Kuru had recommended an exercise based rehabilitation program consisting of regular aerobic exercise (walking, cycling, swimming) in conjunction with a flexibility based exercise program for his neck (yoga, Pilates, circuit training). The clinical notes from Glendale Medical Practice refer to Mr Lewis walking the dog, experiencing severe pain after riding a motorbike and mowing the lawn, and leaving “the house on occasion for mental health eg fishing”.
I do not consider that the report from Lee Kelly Investigations raises any real issue as to Mr Lewis’ credit. I consider that the activities that he is shown to engage in are consistent with the activities he describes doing and can largely be included in the activities recommended by his treating doctors. As noted above the report included photographs posted between 5 October 2019 and 12 November 2023, with one entry in the year 2019, one entry in 2021, three entries in 2022 and six entries in 2023. I do not consider that this number of posts indicates that Mr Lewis had a very active social life as described by Dr Casikar. I do not accept that the report shows, as Dr Casikar stated, that that Mr Lewis has been functioning very easily or indicated that the disability he claims is not sustainable.
I am satisfied after considering the evidence that Mr Lewis’s injury to the cervical spine on 1 February 2017 has not resolved and that he continues to experience severe and debilitating pain, for which he takes significant amounts of medication.
The next issue to consider is whether the surgery proposed by Associate Professor Steel, namely, an anterior cervical discectomy and fusion at C3/4 is reasonably necessary as a result of the injury to the cervical spine on 1 February 2017.
In Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang), Kirby P stated (at [462E]):
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
Further, his Honour stated at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
The High Court in Comcare v Martin (2016) HCA 43 (Martin) considered the extent to which one can rely on a “common sense approach”. In Martin the High Court stated at [42]:
“Causation in a legal context is always purposive. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose. It has been said more than once in this Court that it is doubtful whether there is any ‘common sense’ approach to causation which can provide a useful, still less universal, legal norm.” (Footnotes omitted.)
In Martin the High Court referenced its decision in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd 3 (2005) HCA 26, wherein it was stated:
“[96] Santow JA also emphasised that this question of causality was not at large or to be answered by ‘common sense’ alone; rather, the starting point is to identify the purpose to which the question is directed. Those propositions should be accepted. The following may be added.
[97] First, in March v Stramare (E&MH) Pty Ltd (1991) HCA 12, McHugh J doubted whether there is any consistent ‘commonsense notion of what constitutes a ‘cause’, and added:
‘Indeed, I suspect that what common sense would not see as a cause in a non- litigious context will frequently be seen as a cause, according to common sense notions, in a litigious context. This is particularly so in many cases where expert evidence is called to explain a connexion between an act or omission and the occurrence of damage. In these cases, the educative effect of the expert evidence makes an appeal to common sense notions of causation largely meaningless or produces findings concerning causation which would often not be made by an ordinary person uninstructed by the expert evidence.’”
However, as I understand it, Kirby P in Kooragang when referring to applying “common sense” was not suggesting it be applied “at large” or that issues were to be determined or answered by "common sense" alone, instead of by a careful analysis of the evidence.
In Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49. Roche DP at [57] and [58] said:
“57. Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 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]; 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.”
For medical treatment to qualify as “reasonably necessary” it must be appropriate, including in the context of mitigating the effects of any injury to cure, alleviate, sustain the status quo, or to negate and stem progressive deterioration. It can be a question of degree to which treatments effectively alleviate injury symptoms and address pain management. There is a line of cases consistent with this analysis including Rose v Health Commission (NSW) (Rose) [1986] 2 NSWCCR 32.
Burke J in Rose (at pages 47-49) set out some general principles in relation to the issue of whether a particular regimen was medical treatment and whether it was reasonably necessary:
“1.     Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.      However, though falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the party seeking to do so). If is shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purpose of the Act.
3.      Any necessity for relevant treatment results from injury where its purpose and potential effect is to alleviate the consequences of the injury.
4.     It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to and should not be forborne by the worker.
5.      In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for this particular condition.”
The matters to be considered in a s 60 claim include the matters noted by Burke CCJ in Rose (supra) namely:
·        the appropriateness of the particular treatment;
·        the availability of alternative treatment, and its potential effectiveness;
·        the cost of the treatment;
·        the actual or potential effectiveness of the treatment, and
·        the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
In Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) Roche DP observed at [89] that:
“With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts…
[105] …on its own, a reduction in pain after the particular treatment does not necessarily ‘meet’ the test of reasonably necessary in section 60, it is a factor that can be considered in determining that issue. More importantly, it should be considered in light of the expert evidence and relevant history of the development of the symptoms…”
The respondent argued that the weight of the medical evidence supported a finding that the proposed surgery was not reasonably necessary. The respondent argued that Mr Lewis had seen a number of neurosurgeons and Associate Professor Steel was the only neurosurgeon to recommend surgery.
Mr Stockley submitted that the test to be applied is whether the proposed treatment is reasonably necessary at this point in time and not when Mr Lewis was examined in the past because there have been further investigations and a failure over the years to respond to conservative treatment.
I am satisfied that little weight should be placed on the earlier reports in which surgery was not recommended because normal practice would be to wait and see if Mr Lewis’ condition improved with conservative treatment. Indeed, this approach was recognised by Associate Professor Steel, who expressed the view that when Mr Lewis initially saw specialists in 2017, it was quite reasonable at this point to not recommend surgery as his symptoms had been present for less than twelve months and often, patients who have neck pain would improve over one to two years.
The more recent opinions were those obtained from Dr Sammons, Dr Ferch as well as Associate Professor Steel. Dr Sammon’s report is fairly short. She referred to an MRI of the cervical spine that:
“…shows loss of the normal cervical lordosis with quite a straight spine and some degenerative changes; there is no significant central canal stenosis nor significant foraminal stenoses. There are some foraminal stenoses described by the radiologist but these are mild and nerve roots appear unimpinged. Daniel has had a bone scan which shows no facet arthropathy.”
Dr Sammons thought that Mr Lewis’s pain was muscular and mostly the result of some degenerative changes and his straight cervical spine.
Mr Rickard argued that findings in the bone scan of 19 November 2021 were basically the same as in the bone scan of 13 September 2023. However, I note that in the report of 19 November 2021 the findings included “mild to moderate degenerative uptake at the endplates of C3-4” whereas the scan of 13 September 2023 the findings were “slight irregular uptake in the cervical spine with slightly more intense uptake into the C3/C4 intervetebral disc”. In my view, these are not the same findings. Further, the scans were also reported on by the treating neurosurgeons and weight should be given to their views of the actual imaging.
Dr Ferch referred to an MRI scan of the cervical spine but not to the bone scan. Dr Ferch considered that the MRI studies confirmed degenerative change at the C3/4 level where there was some left sided foraminal narrowing which might be enough to irritate the exiting C4 nerve root. Dr Ferch recommended a transforaminal steroid injection at that site. Dr Ferch made no comment on whether surgery should be considered if the injection and a posture based exercise program did not provide relief.
Dr Casikar’s opinion that the surgery proposed by Associate Professor Steel was not reasonably necessary was based on his conclusion that Mr Lewis had recovered from any injury sustained on 1 February 2017. For the reasons set out above in paragraph 82, I do not find Dr Casiker’s opinion persuasive and place no real weight on it.
I should add that Dr Casikar has stated that the diagnosis of the injury is a soft tissue injury to the shoulder which has recovered. This was based on a Telehealth consultation with no physical examination or it appears imaging of the shoulder. Dr Casikar is not a shoulder specialist, so it difficult to understand how he can make this diagnosis. Dr Casikar ignored the fact that Mr Lewis had complained since 2017 of neck pain.
Associate Professor Steel’s opinion is set out above. His comments on the results of the bone scan on 13 September 2023 are central to his reasoning in his report of 12 February 2024. Associate Professor Steel described the nuclear medicine bone scan as showing significant cervical spine disc degeneration with the most active disease at C3/4. There was no evidence of cervical spine facet joint arthritis, but significant uptake in the C3/4 intervertebral disc. Associate Professor Steel concluded that given the appearance on the technetium bone scan, the likely pain generator is the C3/4 disc. He made a diagnosis of significant and symptomatic C3/4 discopathy.

Associate Professor Steel referred to the MRI scans of the cervical spine which had been taken on 10 July 2017, 5 October 2021 and then on 13 September 2023. He noted that Mr Lewis had disc changes at C3/5 and C4/5 in the scans of 10 July 2017 despite being 46 years of age when change should be minimal. Associate Professor Steel noted that he changes had slowly progressed and the increased uptake on the bone scan on 13 September 2023 showed significant uptake at the C3/4 intervertebral disc. He noted that uptake on technetium bone scan correlate well with the source of pain.
Associate Professor Steel considered that C3/4 disc generation causing C3/44 discovertebral arthritis tends to relentlessly progress over time once it has started. He noted that the condition can usually be treated non-surgically, initially with oral analgesia, but because the natural history of disc degeneration is that it will progress over time, usually to a point where surgery is needed. Associate Professor Steel noted that the mechanical problem in these cases is not one of nerve or spinal cord compression so decompression of nerves and/or spinal cord will not help relieve the pain. He expressed the view that the pain generator is the movement of the discovertebral complex, and that the structural solution to this is to remove movement at this level, ie. fuse this segment.
Associate Professor Steel considered that the proposed surgery has a 70% chance of significantly improving symptoms to the point that Mr Lewis would be able to return to the workforce in some capacity. It also had a high likelihood of making him generally more comfortable.
Associate Professor Steel stated that Mr Lewis described pain that has now been present for seven years. Mr Lewis has seen multiple specialists over the years and has never improved. He has had an extensive period of conservative treatment, i.e. analgesia, rest, exercise, physiotherapist, Cortisone injections, et cetera, but his symptoms remain the same, persist, and have not improved. He is on a significant amount of medication.
Associate Professor Steel stated that if it was accepted that there is a structural pain generator in Mr Lewis' neck, which was a reasonable assumption given the chronicity of his pain, it was reasonable to consider a structural solution. He considered that the most likely pain generator based on his symptoms was the C3/4 segment and it was reasonable to consider fusion surgery for this. He noted that Mr Lewis describes pain that developed after his injury, which had been present ever since and in general, young patients such as Mr Lewis will have only one pain generator and this was most likely the C3/4 segment.
Associate Professor Steel expressed the view that the proposed surgery could reduce level of pain by up to 70% which would improve symptoms to a point where Mr Lewis would be able to return to some form of employment
Associate Professor Steel has proposed surgery to remove movement at the C3/4 level which he identified as a pain generator. He has not proposed surgery because there is spinal cord compression. Dr Sammons also expressed the view that the pain was due to degenerative changes but noted that foraminal stenoses described by the radiologist were mild and nerve roots appeared unimpinged. She did not identify a pain generator or address the question of whether surgery might be appropriate to remove movement at the level of the pain generator. Dr Ferch also confirmed degenerative changes at C3/4 and stated that the foraminal stenosis might be enough to irritate the exiting C4 nerve root. However, Dr Ferch merely concluded that Mr Lewis had no current threat to his spinal cord and the nerves elsewhere were not compromised. Dr Ferch did not address whether surgery might be appropriate to remove movement at the level of the pain generator.
On balance, I prefer the opinion given by Associate Professor Steel. He provided an extremely detailed and well-reasoned opinion addressing why Mr Lewis should undergo the proposed surgery. The benefits described by Associate Professor Steel, if the surgery is successful, are considerable, particularly the prospect of being able to return to some work. I do not consider that the cost of the treatment is excessive given the benefits if the surgery is successful.
I am satisfied that Mr Lewis has undergone conservative treatment since 2017, which has included analgesia, rest, exercise, physiotherapy, cortisone injections and pain management treatment. This treatment has not provided any real relief for his pain and his condition has deteriorated. He is currently unable to work and takes a considerable amount of opiate based medication in order to reduce his levels of pain. There appear to be no other treatment available to Mr Lewis at this stage.
I am satisfied that Associate Professor Steel is the only treating doctor who has actually considered the appropriateness of the recommended treatment because he is the only doctor to state that he has identified the pain generator and that fusion of the C3/4 disc to remove movement at the C3/4 level in order to alleviate Mr Lewis’s symptoms and pain. In terms of the actual procedure, it is a procedure that is commonly performed.
I am satisfied that the injury on 1 February 2017 made a material contribution to the need for cervical spine surgery proposed by Associate Professor Steel and that the medical treatment is reasonably necessary as a result of the injury on 1 February 2017.
I order that the respondent pay Mr Lewis’s s 60 expenses in respect of the treatment proposed by Associate Professor Steel in his report of 20 October 2023, namely, an anterior cervical discectomy and fusion at C3/4 as a result of the injury on 1 February 2017.

[2024] NSWPIC 590

21 October 2024