Lymbery v Shoalhaven City Council - [2016] NSWWCCPD 38

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Lymbery v Shoalhaven City Council [2016] NSWWCCPD 38
APPELLANT:	Paul Gwynne Lymbery
RESPONDENT:	Shoalhaven City Council
INSURER:	Self-insured
FILE NUMBER:	A1-6328/15
ARBITRATOR:	Ms A Britton
DATE OF ARBITRATOR’S DECISION:	9 March 2016
DATE OF APPEAL DECISION:	29 July 2016
SUBJECT MATTER OF DECISION:	Entitlement to medical expenses pursuant to s 60(5) of the Workers Compensation Act 1987; whether proposed surgery is reasonably necessary as a result of accepted work injuries
PRESIDENTIAL MEMBER:	Acting Deputy President Larry King SC
HEARING:	On the papers
REPRESENTATION:	Appellant:	Carroll & O’Dea
Respondent:	Bartier Perry
ORDERS MADE ON APPEAL:	1. Appeal allowed. 2. The Arbitrator’s determination of 9 March 2016 is revoked, and, in its place, the following order is made: “1. Pursuant to s 60(5) of the Workers Compensation Act 1987 the respondent employer is to pay the appellant’s reasonably necessary medical and related expenses in respect of the proposed spinal surgery.”

INTRODUCTION AND BACKGROUND

This is an appeal from a determination of an Arbitrator dated 9 March 2016. The learned Arbitrator had before her a dispute about the appellant’s entitlement to medical expenses pursuant to s 60(5) of the Workers Compensation Act 1987 (the 1987 Act) in relation to major spinal surgery which had been proposed by two of his treating specialists and which he wished to undergo. The appellant’s contention was that, within the meaning of s 60(1), “… as a result of an injury received by [him], it is reasonably necessary that …” the surgical treatment be rendered to him. The respondent argued that the evidence did not establish the essential ingredients of his contention, that is that the surgery was reasonable treatment and that a causal connection between the need for it and employment injury existed.
The Arbitrator correctly noted that the onus was upon the appellant to prove that the proposed surgery was reasonably necessary and connected to the accepted work injuries. The appellant claimed that the need for the proposed surgery arose from the effects of injury to his lower back sustained by him in the course of his employment with the respondent on 29 October 2004 or 26 October 2005, or surgery he underwent at the hands of Dr Rosenberg on 26 September 2006 (lumbosacral discectomy and neurolysis) and 18 May 2007 (revision discectomy, neurolysis and L5/S1 fusion), the effect of the fusion over time in particular being to bring added stress to bear upon the level of the spine immediately above it to which the proposed surgery is to be directed at least in part. Alternatively the appellant relied upon a combination of the effects of the two injuries and the surgery. In this regard there was no dispute that the two injuries had happened as alleged and that the two operations just referred to had taken place as a result of those injuries.
The Arbitrator was not satisfied that the need for the proposed surgery was “… a result of one or both of the subject injuries” and resolved the dispute before her in favour of the respondent: (see [35] of Reasons).
At an earlier stage in her determination, the Arbitrator noted that there was no issue between the parties that the appellant was suffering significant lower back symptoms ([4]) and she approached her decision assuming, but not deciding, that the proposed surgery was “reasonably necessary” ([17]). Her decision thus rests upon the conclusion that there was no causal connection between either or both of the injuries and the consequent earlier surgery or more than one of them and the assumed reasonable necessity for the proposed surgery.
Just as the appellant carried the onus before the Arbitrator of making out the causal connection, he now carries the onus of demonstrating relevant error. His challenge does not, as was previously the case, entitle him in effect to a general review or de novo second look at his claim: his onus pursuant to s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) is to demonstrate “error of fact, law or discretion”. The operation of s 352(5) was considered and stated by Roche DP in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25.

LEAVE

Monetary threshold and time

There is no dispute between the parties that the quantum in issue on the appeal satisfies the relevant monetary threshold under s 352(2)(a) of the 1998 Act. There is also no dispute that the appeal was lodged in time in compliance with s 352(4).

ON THE PAPERS

Both parties in their written submissions upon the appeal accepted that it was suitable for disposition “on the papers”. I am also satisfied that is the appropriate course.

THE DECISION UNDER REVIEW AND THE ISSUES IN DISPUTE

The decision of the Arbitrator under review, the basis for it, and the issues now in dispute sufficiently appear above under “Introduction and Background”.

EVIDENCE AND SUBMISSIONS

As indicated above, the parties were not at issue as to the occurrence of the injuries and earlier surgery and the causal connection between the injury, or one of them, and the surgery. There is no question that the focus of the dispute takes one from those events, the sequence of which concluded about nine years ago, to the appellant’s present situation and his situation for about the last three years, but it could not seriously be suggested that the course or progress of his back condition between 2007 and 2013 can be looked at otherwise than against the background of the events between 2004 and 2007. However the respondent, both before the Arbitrator and in its submissions upon this appeal, has drawn attention to the fact that the earlier surgery was on both occasions to the appellant’s spine at the L5/S1 level, and that there is now not complete unanimity of opinion between the two treating surgeons who have proposed the disputed further surgery. The original operating surgeon Dr Rosenberg advised “… extending the decompression and fusion proximally to include the L4/5 level …” (report 18 December 2013) and Dr Al Khawaja advised “… L5/S1 exploration to access the instability of fusion and if it is not fused properly, … L4/5 and L5/S1 fusion …” (report 4 May 2015). In these circumstances the unchallenged evidence of the appellant in his evidentiary statement of 16 July 2015 (at [9]) that after the respondent declined liability for the surgery Dr Rosenberg wished to perform he had “… since seen an alternative surgeon, Dr Al Khawaja, and … decided that if the surgery is approved, I would like to have the surgery undertaken by him …” (para 9) is of significance and I will return to it.
Before the Arbitrator the appellant relied, on the issue of causation, on serial reports from
Dr Rosenberg and the abovementioned report of Dr Al Khawaja, the treating medical specialists, and upon medico legal reports from Dr Phillip Marnie dated 6 December 2007 and James Bodel dated 18 September 2015, both orthopaedic surgeons. He also relied upon the Medical Assessment Certificate of Dr Bye, orthopaedic surgeon, dated 8 April 2009 and the later variation of that certificate by an appeal panel whose decision was dated 9 July 2009. In response the respondent relied before the Arbitrator both on a criticism of the appellant’s evidence essentially derived from Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (Makita), and upon the evidence of the serial reports of Dr Edwards.
Relevantly the evidence of Dr Rosenberg, when the appellant was referred back to him in November 2013, was that he believed the appellant was “… becoming symptomatic from adjacent segment disease at L4/5, above a solid fusion …”: report 20 November 2013. He suggested radiological investigation and after plain x-rays and an MRI scan he said in a follow up report of 18 December 2013:
“It remains my belief that [the appellant] has significant adjacent segment disease through a combination of disc and facet joint disease … He requires extending the decompression and fusion proximally to include the L4/5 level …”
Dr Rosenberg’s final report in evidence was dated 4 February 2015. In it he said:
“As you know, [the appellant] underwent a lumbosacral fusion in 2007. He had a pretty good result from this but unfortunately has developed increasing symptoms in the last year or so. My belief is he has now become symptomatic from the adjacent segment, at L4/5 … There is no doubt he is over weight and whilst this contributes partly to his problems, it is not the cause of it. Most recently he has received L4/5 facet joint injections which gave him 10 days of good relief as regards his back and leg pain. This is a telling diagnostic thing as well.
It remains my belief that he is an ideal candidate for further surgery. I propose extending the decompression and fusion proximally to include the L4/5 level …”.
The relevant part of the opinion of Dr Al Khawaja, expressed briefly in a report “dictated but not signed by Dr Arun Kumar”, is referred to above and the surgery Dr Al Khawaja proposed was somewhat different from that proposed by Dr Rosenberg. Nonetheless there was commonality in relation to at least possible L4/5 fusion.
By way of medicolegal opinion, Dr Marnie in his report of 6 December 2007 said under the heading “Diagnosis and Attribution” that the appellant had had “… L4/5 and L5/S1 disc lesions, the L5/S1 disc lesion being the cause of his symptoms and impairment. These symptoms were initiated by his injury at work in 2004/early 2005 when he was removing a tree stump. The episode in November 2005 when lifting the park furniture was an aggravation of his pre-existing back problem and a flow-on from that problem …”.
Under the heading “Further Treatment” he went on to say “… In the longer term point of view, his L4/5 disc may give him symptoms, particularly with the added stress thrown on that disc after his L5/S1 disc fusion and at some indefinite time in the future this disc lesion could also require surgical treatment.”
The report of Dr Bodel of 18 September 2015 relevantly contains the following statement
(page 5):
“On balance, Dr Edwards does not feel that the extension of the fusion to involve the L4/5 is reasonable and necessary. I would indicate that it probably is reasonable and necessary as a consequence of his original injury because of deteriorated function and a return of symptoms of increasing back pain and leg pain of a mechanical type with abnormalities seen at the L4/5 level on the scans.”
The Medical Assessment Certificate of Dr Bye and its modification by the Appeal Panel were relied upon before the Arbitrator and upon this appeal by the appellant for the expression of opinion in both that there was no pre-existing injury or condition which warranted a reduction in the percentage whole person impairment being assessed by both. In effect by extension of that proposition it was contended that if the appellant’s level of whole person impairment, which was a product of his overall back problems, was not to be discounted for pre-existing matters such as degenerate change, but was to be attributed to the two injuries and the subsequent surgical treatment, then it must follow that the need for further surgery, as a part or a reflection of his overall condition, was causally related to those things.
As to the respondent’s position, it will be necessary to deal separately with the Makita based arguments and criticisms of the appellant’s evidence, but the opinion of Dr Edwards on the critical question of causation can, I think, be taken in summary from his reports of 20 May 2013, 17 January 2014 and 30 November 2015. The first of these, as appears to have been correctly accepted by the parties and certainly by the Arbitrator, was chiefly concerned with incapacity and is of limited relevance. The doctor accepted that there had been “… a work related back injury, resulting in initially an L5/S1 laminectomy in 2006, and an L5/S1 instrumented fusion in ? 2007”. The injury, so far as the doctor could ascertain, was the stump-related incident of 29 October 2004: (see page 6, para 2). More materially, when the further surgery was under consideration, in his report of 17 January 2014 Dr Edwards, in response to question 2 set out on page 5 of his report as to whether the surgery was reasonably necessary, reproduced parts of a couple of articles in medical journals and commented in between them that:
“The question of adjacent segment disease is controversial. It is not clear whether degeneration adjacent to a fusion represents age-related degeneration occurring because of natural history alone, or whether the changes are a result of the operation.”
On page 7 in response to a specific question whether the surgery, if required, was related to the injury of 26 October 2005, Dr Edwards expressed the view that it was not. He was not asked about the implications of the injury of 29 October 2004, and his view that the 2005 injury had no causal significance was quite consistent with the opinion he expressed in his earlier report that the stump-related injury was the causal one. That was the first injury on 29 October 2004 and despite some confusion about dates both on the part of the respondent’s solicitors (see page 2 of Dr Edwards’s report of 20 May 2013) and perhaps the doctor himself (see para 2 on page 6), it is clear enough that he thought the first injury was the significant one.
Then in his final report of 30 November 2015, page 5, Dr Edwards squarely said that the appellant’s L4/5 disc was affected by change of a degenerate nature and that the fusion at the lower level could not be responsible for the appearance of L4/5.
The short summary of the views of Dr Edwards which I regard as being relevant that I have just given shows that it could be said that his view went no further than saying that the appearance of the L4/5 disc was degenerate and unrelated to the adjacent fusion, without saying that any symptoms which might be coming from L4/5 were unrelated to any stress or pressure from the adjacent fusion and unrelated to the effects of the earlier injuries, in particular the 2004 injury. But both the parties and the Arbitrator seem to have interpreted the substance of his opinion as being that the problem was exclusively constitutional or degenerate at L4/5, and that the injuries and earlier surgery or any combination of them had no causal impact. I think that that is a realistic approach and I will adopt it in the disposition of this appeal as the effect of Dr Edwards’s evidence.
Against the background of the evidence before her, upon my reading of the reasons of the learned Arbitrator, the steps by which she reached her decision were these:
(a)     she correctly directed herself that the appellant carried the onus of showing on the probabilities that the surgery was reasonably necessary and correctly directed herself as to the nature of that onus (at [16]);
(b)     she held that the weight of evidence was that degenerative change at L4/5 was the most probable cause of the appellant’s current symptoms and that apart from Drs Bodel and Edwards, none of the other medical experts who had “recently assessed” the appellant) have commented upon whether that pathology was contributed to in some way by the subject injuries” (at [27]);
(c)     she said of Dr Bodel that whilst he gave a reasoned explanation for his opinion that the proposed surgery was reasonable and necessary, his opinion that it was required as a result of the “original injury” was defective for want of any such explanation (at [29]–[30]);
(d)     dealing chiefly with the opinion of Dr Marnie and to the long term effect of added stress at L4/5 from the L5/S1 disc fusion, she said of this (at [31]–[32]):
“31.… While entirely plausible, there is nothing in the reports prepared by Drs Rosenberg or Bodel to suggest that they agree with, or have even considered that hypothesis. The only expert to have recently considered the issue is Dr Edwards who in his final report wrote:
[The appellant] may have some mechanical backache. Whether this is due to the degenerative change at L4/5 is not clear and whether it is secondary to his fusion at L5/S1 is not clear.
32.Dr Marnie’s prediction, together with Dr Edwards’ reluctant concession, in my opinion provides and inadequate basis on which to be satisfied to the requisite standard that the added stress on the disc materially contributed to [the appellant’s] symptoms.”
(e)     she accepted a submission for the respondent that the reference in the report dictated by Dr Kumar but reflecting the opinion of Dr Al Khawaja could not be understood to mean that the latter felt the fusion had become unstable and that even if that understanding were available from the report, no other doctor had remarked upon it (at [33]);
(f)     the learned Arbitrator articulated her ultimate view (at [34] and [35]) as follows:
“34.The available evidence indicates that the most probable cause of [the appellant’s] back symptoms is, as Drs Bodel and Rosenburg [sic] believe, the degenerative change evident at the L4/5 level. It is possible that the first injury produced the central bulge revealed on the CT scan taken shortly after that injury, which in turn contributed to the degenerative change. It is also possible that that pathology was pre-existing and was aggravated in some way, or became symptomatic as a result of one or both injuries. However, none of the experts whose opinions are before me has expressed that view.
35.For these reasons, I am not satisfied on the balance of probabilities that the need for surgery is a result of one or both of the subject injuries …”
I take it to be plain that the Arbitrator included within the notion of “a result of one or both of the subject injuries” any impact on L4/5 of the appellant’s spine from the prior fusion at the L5/S1 adjacent level.
The appellant advanced thirteen grounds of appeal and supported them with seven pages of written submissions following the grounds of appeal. I do not think it is necessary to set out the grounds of appeal or to rehearse in detail these submissions. I think it is sufficient to say that the grounds of appeal and submissions in support assert various errors on the part of the Arbitrator, said to be errors of mixed fact and law, which are to some extent overlapping and perhaps repetitive, but which come down to a few fundamental points.
These are, first, that there is no evidence of any real spinal difficulties affecting the appellant prior to the injury of 29 October 2004 (all there were were a couple of isolated episodes), compared with a continuity of problems thereafter, marked by some improvement after surgery but subsequent recurrence of problems. Reliance was placed on the certificate of Dr Bye and the Appeal Panel’s revised certificate in the way described above.
Secondly, the Arbitrator, having expressed the view that there was a possible relevant connection, did not correctly perform her decision-making task in determining whether, upon the basis that the medical evidence recognised a possible causal connection, on the totality of the evidence including that medical evidence the connection should be accepted as probable.
Thirdly, error was asserted in not accepting that the L5/S1 fusion could over time have provoked symptoms at L4/5 through stress upon that adjacent level of the spine, that is not taking account of this possibility on the medical evidence and determining whether on the totality of the evidence it represented a probable causal factor.
Finally, error was asserted in failing to appreciate and act upon the implications of the opinion of Dr Al Khawaja in relation to the surgery he proposed, which involved at least the prospect of a return to the level of the appellant’s spinal column which it was common ground had been affected by injury and brought by injury to surgery on two occasions.

The respondent in its written submissions responded to each of the appellant’s grounds of appeal, its submissions recognising the degree of overlap and repetition and where appropriate grouping the grounds of appeal and responding to them.
In relation to the appellant’s reliance on the opinion of Dr Marnie and the certificate of Dr Bye and the modified certificate of the Appeal Panel, it was put by the respondent that their views in the end were irrelevant to the issue. In the case of Dr Marnie this was essentially because there was no operative L4/L5 problem when he saw the appellant, and in the case of the Medical Assessment Certificate, the issue was different and the reason for making no deduction in respect of a pre-existing condition not a material one.
Secondly, in relation to the reliance by the appellant on the fact that the proposed further surgery would extend to a level of the spine immediately adjacent to the L5/S1 level already fused and capable of causing stress upon L4/5, it was put that the evidence was not probative and the Arbitrator’s decision was fairly open. In this regard the conclusion that the problem was a degenerate one and that the relevant degeneration was not shown to be materially contributed to by injury or surgery or both was unexceptionable.
Thirdly, it was put that there was no medical evidence to support the assertion of any relevant involvement by way of injury (and, by extension of that, in relation to the appellant’s surgery for injury) with adjacent segment disease, that is degenerate change at L4/5.
Finally, the difference between the surgery proposed by Drs Rosenberg and Al Khawaja went against the appellant, especially since there was no cogent suggestion of instability in the fusion already performed at L5/S1, something which tended to discount any need for exploration thereof by way of further surgery.

DISCUSSION AND FINDINGS

There is substance in the respondent’s criticism of the appellant’s reliance on the report signed by Dr Kumar expressing the opinion of Dr Al Khawaja. It is undoubtedly correct that there is no expression of opinion in that report or anywhere else to the effect that the fusion performed by Dr Rosenberg had become unstable. (Indeed the radiological evidence is to the contrary e.g. in the reports of Dr Janet McIntosh of 7 May 2012 and Dr Whistler of 13 December 2013 as well as in the evidence of Dr Rosenberg in his report of 18 December 2013). The case is certainly not one remotely of the McGillicuddy v Grahame Industries Pty Ltd (1958) 32 WCR 150 type. But to my mind this is as far as one can take Dr Al Khawaja’s brief report, and it does not displace the obvious overlap between the type of surgery both he and Dr Rosenberg had in mind, nor does it displace the overall contextual background of a continuity of back trouble affecting the appellant at first one and then an immediately adjacent spinal level after injury and remedial surgery at the L5/S1 level, and its worsening over time to the point of serious problems by at least 2013.
There is also substance in the respondent’s argument in favour of discounting the certificates of Dr Bye and the Appeal Panel, effectively upon the basis that they are directed to a different issue. Whilst they are not irrelevant, in my opinion they do not have the powerful force the appellant attributes to them. At best they contribute to the overall contextual background in emphasizing the medical opinion within them, consistently with the appellant’s own statement, that nothing that went before his injuries of 2004 and 2005 had the importance that at least the first of those two injuries had.
Notwithstanding the two points abovementioned, with all respect to the learned Arbitrator, I think that she erred in determining that the requisite causal connection did not exist between the two injuries just referred to and the surgical intervention thereafter or a combination of those things. As the submissions of the appellant emphasised, the Arbitrator acknowledged, especially in [34] of her Reasons, the possible connection between the appellant’s first injury and what can be described as his current condition, as well as the possibility of aggravation rather than outright causation. I think her reasons also, certainly implicitly and close to expressly, acknowledged the possibility of a causal connection by way of stress on the L4/5 level of the spine from the adjacent fused L5/S1 level over a period of time. Dr Marnie expressed that opinion, and I regard the comments in the reports of Dr Rosenberg of 20 November 2013 and 18 December 2013 to the effect that the appellant has symptoms from “adjacent segment disease” as a shorthand endorsement of that opinion. I think that Dr Rosenberg and Dr Marnie so far as the effect over time of the fusion is concerned are of the same mind, and that the only interpretation that can be given to their views on a commonsense level is to say either that they are outright of the view that the fusion was relevantly causal, or at least it was consistent or possible that the fusion was relevantly causal. Moreover I think the only commonsense view of the reports of Dr Edwards is that he allows such a connection as being possible at least in the abstract. As abovementioned in his report of 17 January 2014 he comments upon the controversial question of “adjacent segment disease” and in my view does so in such a way as to recognise a body of opinion according with the views of Drs Marnie and Rosenberg. In his report of 30 November 2015 he denies in the appellant’s case any such connection, but does not endeavor to advance the view that it is never a possibility.
Then in relation to Dr Bodel, as outlined above in his report of 18 September 2015 he squarely expresses the view that the requisite causal connection exists, part of that expression of opinion being extracted by the Arbitrator (at [29]). It seems to me that she discounts the view expressed by the doctor for want of sufficient reasoning of explanation on a Makita basis, but in my opinion this too exacting a reading of the report, which should be seen as giving support to the appellant’s claim. Authority subsequent to Makita has pointed out, modifying the potential impact of that decision, that it need only appear that the opinion being expressed must, on the probabilities, be based wholly or substantially on specialised knowledge, a proposition at its most forceful in relation to expert medical evidence: see Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; Allianz Australia Limited v Sim [2012] NSWCA 68 and also Sydneywide Distributors Pty Limited v Red Bull Australia Pty Limited [2002] FCAFC 157. Again with due respect to the learned Arbitrator I think it would be unrealistic to imagine that Dr Bodel, in saying what is set out in [29] of her Reasons, was either on the face of things stepping outside the field of medical training and expertise or needed to explain how he was staying within it. I think he was clearly within it.
Further on this topic, I do not think it can be left without remarking that if there is substance in the Arbitrator’s criticism and discounting of this expression of opinion by Dr Bodel, the same approach would necessitate the discounting and rejection of Dr Edwards’s opinion that the appellant’s problems were exclusively degenerate and that there was no possible causal connection between the two injuries and the prior fusion and the current adjacent segment pathology. A strong view of the totality of the evidence if the opinions of Drs Bodel and Edwards were to be disregarded would be that there was no evidence of pure degenerate pathology and a body of evidence of at least possible causal connection in two ways between the appellant’s current condition and injury in the course of his employment. But I do not think this is the correct analysis. Rather I think that the views of each doctor were satisfactorily expressed and needed to be evaluated against the background of the evidence as a whole.
When that exercise is undertaken, it seems to me that if not the only commonsense view, by far the preponderant commonsense view, must be that the necessary causal connection exists. There is evidence in square terms that it exists on the probabilities. But quite apart from that, there is no doubt that the connection in two ways is established on the evidence as possible or consistent. Once expert medical evidence has informed a fact-finder of a possible medical or scientific connection, in order to properly discharge the decision-making task the fact-finder must consider whether on the totality of the evidence the possibility should be seen as probability: (EMI (Australia) v Bes [1970] 2 NSWR 238; 44 ALJR 360(n) and Fernandez v Tubemakers of Australia Limited [1975] 2 NSWLR 190; (1976) 50 ALJR 721).
I have no hesitation in concluding that on the totality of the evidence in this case the probability is that the appellant’s current condition is causally related to injury arising out of or in the course of his employment including the surgical intervention which followed such injury. It does not appear that the Arbitrator considered whether the whole body of the evidence converted the possible causal connections she acknowledged into probabilities, and if I am correct in that impression she fell into error in not properly discharging her decision-making function. If I am wrong in that and her decision is to be read as saying that the evidence did not rise higher as a whole than the mere possibilities she noted, in my view she was wrong on a commonsense basis (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796) and should have held to the contrary.
This is particularly so when the very possibilities she noted related to causation through employment injury of the degenerative condition which she seems, contrary to such possibilities, to have held to be absolutely unrelated to injury, and when the surgery which the appellant said he wished to undergo at the hands of Dr Al Khawaja would in any event have been likely to involve a site in his spine accepted by the respondent as a location of compensable injury and earlier compensable surgical treatment. In addition, the Arbitrator’s comment abovementioned that the view taken by Dr Marnie was “entirely plausible” must involve a recognition that it was at least possible, and her immediately following comment that Dr Rosenberg was silent about it is not correct.
It follows that the decision of the Arbitrator in the terms in which she gave it denying the requisite causal connection should be overturned. I have noted above that she assumed rather than decided that the surgery was “reasonable and necessary”, and not only does that assumption seem to me to be strongly vindicated by the main body of medical evidence, the respondent did not challenge it or attempt to defeat the appeal by a Notice of Contention–style argument asserting that no such reasonable necessity existed. Importantly I note that “reasonable and necessary” is the wrong test. Treatment does not have to be “reasonable and necessary”, which is a much higher standard than the test of reasonably necessary, before compensation is payable (see Diab v NRMA Ltd [2014] NSWWCCPD 72). Had it been necessary for me to decide the point, I would have held that the assumption was, upon the evidence, the probability, and overwhelmingly so. The medical evidence contrary to what may have been Dr Edwards’s expression of opinion would have been preferred.
Accordingly I order that the appeal be allowed.

DECISION

Appeal allowed.
The Arbitrator’s determination of 9 March 2016 is revoked, and, in its place, the following order is made:
“1. Pursuant to s 60(5) of the Workers Compensation Act 1987 the respondent employer is to pay the appellant’s reasonably necessary medical and related expenses in respect of the proposed spinal surgery.”

Larry King SC

Acting Deputy President

29 July 2016