Mafileo v G L International (Aust) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mafileo v G L International (Aust) Pty Ltd [2021] NSWPIC 519
APPLICANT:	Sione Mafileo
RESPONDENT:	G L International (Aust) Pty Ltd
MEMBER:	Deborah Moore
DATE OF DECISION:	10 December 2021
CATCHWORDS:	WORKERS COMPENSATION - Worker sustained back injury; requested surgery; liability declined by insurer; Held - surgery reasonably necessary; Diab v NRMA Ltd applied.
DETERMINATIONS MADE:	1. On 3 December 2020 the applicant sustained an injury to his back arising out of and in the course of his employment with the respondent. 2. The surgery proposed by Dr New, namely L4/5 and LS/SI decompression, laminotomy and neurolysis bilaterally is reasonably necessary as a result of the injury to the lumbar spine on 3 December 2020. 3. Pursuant to s 60 of the Workers Compensation Act 1987 the respondent is to pay the costs of and incidental to such surgery.

STATEMENT OF REASONS

BACKGROUND

The applicant, Sione Mafileo, was employed by the respondent, GL International (Aust) Pty Ltd as a truck driver. His main duties involved truck driving as well as loading and unloading furniture from the truck. This he said would involve operating a forklift as well as some manual handling.
On 3 December 2020 he jumped down from his truck and experienced lower back pain.
He ceased work and has not returned since.
Liability was initially accepted by the respondent’s insurer and some weekly benefits paid. Liability was then declined in a s 78 Notice dated 21 July 2021 principally on the basis that Mr Mafileo was fit for suitable duties following a vocational assessment.
The insurer then agreed to suspend that decision when the applicant advised that he wished to undergo spinal surgery.
In an initial s 78 Notice dated 9 April 2021, the insurer denied liability for the proposed surgery pending further information.
In a second s 78 Notice dated 11 May 2021 liability was again declined this time on the basis of a report from Dr Haig who deemed the surgery not reasonably necessary.
By this Application to Resolve a Dispute (the Application) registered in the Commission on 15 October 2021, Mr Mafileo sought payment for a “Bilateral L4/5, L5/S1 decompression, laminotomy and neurolysis bilaterally” as requested by Dr Charles New in his report dated 22 March 2021.

ISSUES FOR DETERMINATION

At the hearing on 26 November 2021 the parties agreed that the only issue to be determined was whether the proposed surgery was reasonably necessary having regard to the provisions of s 60 of the Workers Compensation Act1987 (the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a)    Application and attached documents;
(b)    Reply and attached documents, and
(c)    Late document filed by the applicant on 27 October 2021.

THE EVIDENCE DISCUSSED

The applicant’s evidence

In his statement dated 10 September 2021 Mr Mafileo said:
“I was born on 8 February 1973 and am currently 48 years of age.
I was born in Tonga and moved to Australia in 2001.
I moved to Australia in 2001 for the purpose of playing rugby in Townsville, where I had obtained a contract with one of the clubs there. After a few years playing in Townsville I moved to Sydney to play in a local club there however I retired at the age of 37 years as I was getting to old to play at a high level.
In 2005 I suffered from lower back pain for about a month and the pain settled without treatment.
At the time of my injury I was employed by G L International (Aust) Pty Ltd as a truck driver. I had been in that employment since 2017 and my main duties involved truck driving…
On about 3 December 2020… I jumped down from the truck and experienced pain in my lower back. In particular the pain was sharp and was on the right side of my back, radiating down the posterior right buttock, thigh, calf and heel…
On 4 December 2020, after visiting my manager, I went to see my doctor, Dr Alam, and was referred to undergo an x-ray and MRI scan of my lumbar spine…
On 4 January 2021 I underwent an MRI scan of my lumbar spine which showed mild disc bulges at L4/5 and L5/S 1 as well as an annular tear at L5/S 1.
I was referred to Dr Charles New as a result of these scans.
I underwent right L4 and L5 perineural injections on 16 February 2021 however they were unsuccessful in treating my pain.
A few months after the injections I began to develop pain in my left leg, calf and heel. I was referred to undergo physiotherapy treatment which was only gave me temporary benefit.
I was told I needed surgery as the injections and physiotherapy did not work.
On 22 March 2021 Dr New requested the insurer's approval for a L4/5 and L5/S1 decompression, laminotomy and neurolysis bilaterally.
The insurer arranged for me to be independently examined by Dr Ron Haig, orthopaedic surgeon, who opined that I was suffering from obesity and degenerative disc disease. Dr Haig also opined that I should lose weight first and that the surgery proposed by Dr New was not reasonable and necessary.
On 5 May 2021, Dr Haig provided a supplementary report and opined that there was evidence of a pre-existing condition on my MRI which was exacerbated by my employment. Dr Haig therefore diagnosed me with discogenic disease that was age related and exacerbated by my weight.
I do not know why my surgery would be considered reasonably necessary even if it was only, according to Dr Haig, an aggravation.
On 11 May 2021 I received a Section 78 Notice from iCare advising that they were disputing liability for medical or related treatment expenses, in particular the surgery proposed by Dr New.
My solicitors arranged for me to be examined by Dr Peter Khong…[he] diagnosed me with an exacerbation of pre-existing degenerative changes in the lumbar spine… Dr Khong recommended a bilateral L4/5 decompression and opined that it would be reasonable to perform a bilateral L5/S 1 decompression. Again my treating doctors and independent doctors seem to me to agree that I have badly hurt my back at work and need surgery, at least Dr Khong and Dr New…
I continue to experience pain in my lower back which radiates down both of my buttocks, thighs, calves and heels. My pain is worse on the right side compared to the left side.
My pain is also aggravated when I sit for prolonged periods of time as this causes sharp pams.
I am unable to stand for prolonged periods of time and would not be able to walk very far without experiencing significant pain.
Occasionally I experience numbness in my right toes.
I suffer from intermittent urinary incontinence.
I continue to take Mobic and Lyrica medication to control my painful symptoms. Even when I take this medication, I suffer from sleeping difficulties and usually only get about two hours of sleep each night.
I am able to help my wife with some of the domestic chores such as sweeping and cleaning however I often have to step when I experience pain. I no longer perform any lawn or garden maintenance duties as this causes me too much pain. Furthermore, I am unable to perform heavy handyman duties around the house. Prior to my accident I enjoyed playing Rugby League and Rugby Union however as a result of my injury I am no longer able to participate in these activities.
I have not worked since the date of my injury which has caused a lot of financial stress on my family…
That is why I am so determined to have the surgery. I want to get better and be able to return to work. I have always worked in heavy physical jobs. I've never worked desk jobs, and wouldn't be able to. My English isn't perfect so it would be hard for me to do any customer service role within a business and certainly I don't think I can do any physical work at this point in time and I believe Dr New and Dr Khong support me for that reason.
I have a large family that rely on me and if I lose my income I'm not sure what I would do. This is why I want to get better have surgery and hopefully get back to work.”

The applicant’s solicitor filed a late document purportedly being a supplementary statement from Mr Mafileo dated 9 October 2021 but the document in fact was dated 10 September 2021, and was the same statement.
I made further enquiries with the Commission. The applicant apparently made a further statement dated 14 October 2021 which was sent to me upon request to the applicant’s solicitor from the Commission.
It has clearly not been included in the documents before me, and it is unclear whether the respondent has seen it such that I cannot admit it.
In any event, from my reading of that statement, it does not address the issue in dispute before me.
The applicant consulted Dr Alam on 4 December 2020. The entry reads:
“C/O pain at heal of the right foot and right hip pain/right lateral lower lumbar back pain following jump out from the truck on yesterday, 3rd Dec 20 at 3:00 pm. Works as a truck driver.”
Conservative treatment commenced.

On 14 January 2021 the entry reads: “Has had MRI of lumbar spine…on 4 January 2021…saw Dr Bak, rheumatologist on 11 January 2021. Advised to seek another opinion for possible spinal neuropathy.”
Dr Alam then referred Mr Mafileo to Dr New.
Dr New first saw Mr Mafileo on 3 February 2021 then subsequently on 18 March, 21 April, 10 May then 9 June 2021.
In his first report addressed to Dr Alam dated 9 February 2021, Dr New said:
“Thank you very much for referring Mr Mafileo, a 47 year old truck driver whom I reviewed on Wednesday, 3rd February 202 l in my rooms at Penrith. He alleges he injured himself on 3rd December 2020 whilst working as a truck driver for GL International.
He states he was unloading and loading very heavy loads five times per day when he injured his back and developed right sided leg pain. This is the first time that he has had right sided sciatica, although he has had back pain dating back to 2005.
He describes the pain as an aching burning sensation with stabbing qualities exacerbated by walking, prolonged sitting and lifting.
Physical therapy, minor analgesia and home rest have not given him any relief to date. Fortunately there is no history of incontinence.
Assessment of activities of daily living as per the Oswestry Disability lndex Questionnaire shows significant problems with regard to personal care (washing and dressing), lifting, walking, sitting, standing, sleeping, sexual relations with his partner, his social life and travelling by a motor vehicle.
He has had an MRI of his back but it is unintelligible in that the scan is so black you can barely discern the anatomical structures and it will need to be repeated.
Clinical examination reveals a gentleman of stated age weighing 137 kg. He has a protected sitting and standing attitude, an antalgic gait favouring the right hand side, decreased lumbar lordosis and he has pain over the facet joints of L4/5 and L5/S l.
He has a positive Trendelenberg sign on the right hand side and has difficulty getting on and off my examination couch. There is decreased straight leg raise on the right hand side to 70°. He has some weakness in the LS nerve root distribution and an absent right ankle jerk.
At this stage he will require a repeat MRI and technetium bone scan, as well as nerve conduction studies. have organised for him to have a nerve root sleeve block on the right hand side at L4/5 and L5/S l…
I plan to him again in six weeks after he has completed these investigations to note his progress…”
On 22 March 2021 Dr New wrote to the insurer as follows:
“Please find enclosed a copy of my latest GP letter. As you can see my suggestion is that this gentleman goes ahead with surgery which would be in the form of an L4/5 and LS/SI decompression, laminotomy and neurolysis bilaterally…
I would be grateful if you could expedite this patient's approval for surgery…”
Dr New again wrote to the insurer on 27 April 2021. He said:
“l reviewed Mr Mafileo again in my rooms on Wednesday 21 April 2021.
In my correspondence of 22nd March 2021 I wrote to you regarding funding of reasonable and necessary surgery. A two- line reply from Lauren F regarding this request was received.
From a point of view of respect I think it is not satisfactory to have such a perfunctory reply considering the correspondence that I have put in to date.
This patient has failed conservative management and now requires laminotomies. The electrophysiological studies confirm the clinical and radiographic opinion that there is an active left LS radiculopathy.
This has obviously been ignored under icare.
Again, respectfully, I would resubmit this as being reasonable and necessary surgery and I would hope that you would return my correspondence in a timely matter with detail pertaining to declining funding.
Again, respectfully, I would resubmit this as being reasonable and necessary surgery and I would hope that you would return my correspondence in a timely matter with detail pertaining to declining funding…”
On 12 May 2021 Dr New wrote again to the insurer. He said:
“I refer you to my registered mail dated 27th April, 202 l. I would be grateful if icare could treat with respect my reply to the perfunctory declination of this patient's claim for funding for reasonable and necessary surgery.

l am an experienced Orthopaedic Surgeon and I have been treating this patient. He has significant pain, signs and symptoms consistent with his presentation and I am at a loss to understand how such a statement can be made…

I look forward to hearing from you in a professional manner with explanation as to why you think my opinion is incorrect on the basis of critical analysis of the medicine.
It is my understanding that this patient has been reviewed by Dr Ronald Haig. I look forward to seeing the report from Dr Haig. I am unaware of his specific tertiary spinal fellowship training.”
On 16 June 2021 he again wrote to the insurer and said:
“Thank you for your email of 13th May 2021. I have reviewed this with the patient on 91h June 2021.
I appreciate that the correspondence you have sent to me is what you refer to as a ‘standard’ letter that goes to providers. I am a treating doctor wishing to provide this patient with reasonable and necessary treatment. The patient is struggling and the response you have given me provides zero help to assist with this patient. I do not have a copy of the alternate opinion, whereas you have a copy of my opinion.
I am not sure of the bonafides of the individual with regard to the very select subspecialty of spinal surgery. The patient states he was with this doctor for less than half an hour. I would bring to your attention that if I see a patient for opinion and report, the minimum time I take is one hour to go through everything required.
This situation is unacceptable for a treating doctor and the bias in this process is breathtaking and frankly disrespectful…”
Dr New wrote to the insurer once again on 8 July 2021. He said:
“I reviewed Mr Maftleo again on 30 June 2021…
Unfortunately, [ have not received any reply from your office, and the reply from Mr Tim Cameron could only be described as interesting.
I have written to you on 22nd March 2021 with regard to the request for reasonable and necessary surgery funding. I think that should be revisited. The letter dated 11th April 202 I was just a flat no.
I am yet to be notified who the so-called independent medical expert was that came to this decision. The patient has significant radiculopathy and pathology and requires reasonable and necessary treatment…I would be grateful if your office could respond to this as the information I have received to date has been quite perfunctory, whereas from my perspective I am meant to supply to you a significant amount of information with regard to this patient's pathology, noting that the CT guided injection has been unsuccessful in mediating this patient's pain.
I look forward to hearing from you in due course.”
In his report dated 16 June 2021 addressed to Mr Mafileo’s solicitor, Dr New said:
“Mr Mafileo presented for assessment at my rooms in Penrith on 9th June 2021 for the specific purpose of providing this report which is based on my clinical and radiological observations.
I have enclosed a copy of this patient's file to date which confirms the diagnosis and includes documentation with regard to the request for funding approval.
Of particular note is my correspondence dated 22nd March 2021 in which I requested approval for reasonable and necessary surgery.
The patient was reviewed by a Dr Ron Hay [sic] whose bonafides regarding spinal surgery are unknown to me, but the patient states that he was only with this doctor for approximately 20 minutes…
I would refer you to my letter dated 9/2/2021 which confirms the history taken from the patient. activities of daily living, radiographic assessment, clinical examination and my initial opinion. The nerve root sleeve blocks did not give him any significant relief.
The findings on examination have remained the same at each consultation…
The prognosis is guarded at this stage. I still believe he will require the reasonable and necessary surgery. I note that I have included the investigation results that you have requested.”
The initial MRI dated 4 January 2021 reported:
“At L4/L5 small posterior central disc protrusion with mild indentation of the thecal sac. No significant foraminal stenosis seen either side. Disc is minimally approaching the exiting left L4 nerve root.
At L5-S1 there is posterior anular tear. Small posterocentral disc protrusion. No central canal nor neural exit foramina narrowing seen.
Moderate disc desiccation seen at L4-L5 L5-S1 level.
CONCLUSION: Mild lumbar spinal spondylitic changes with no site of definite lumbar nerve root impingement.”
Dr New said that he found this imaging “unintelligible” and a repeat MRI was performed on 12 February 2021. That scan reported:
“Conclusion: MRI lumbar spine does demonstrate L4/5 and L5/S1 disc desiccation. No neurocentral compression or central protrusion is evident. Very small left-sided L3/4 disc bulge measuring 1mm is noted without compression of the exiting nerve roots. Given the right-sided sciatic symptoms, there is no deviation of the right-sided nerve roots.”
The applicant was seen by Dr Peter Khong, neurosurgeon, on 18 August 2021. In a report of the same date, after documenting the history of the injury, he said:
“I have reviewed the MRI scans electronically.
MRI Lumbar Spine 4/1/21 (Castlereagh) - Straightening of lumbar lordosis. Mild disc bulges at L4/5 and LS/51. Annular tear at LS/51. There is contact between the disc bulges and the LS nerve roots bilaterally in the L4/5 lateral recesses.
Bone Scan 15/2/21 (Synergy) - Mild increased uptake right sacroiliac joint. No increased uptake in the lumbar facet joints or endplates.
MRI Lumbar Spine (Synergy) - Dehydration of L4/5 and LS/51 discs noted. Contact noted in the L4/5 lateral recesses bilaterally with LS nerve roots…
Mr Mafileo presents with lower back pain and posterior leg pain to the heels. The pain distribution sounds like S1 radicular pain. I note he had an absent right ankle jerk. MRI demonstrates likely irritation of the L5 nerve roots bilaterally in the L4/5 lateral recesses. There is no clear compression of the S1 nerve roots. I would recommend a bilateral L4/5 decompression…
Mr Mafileo presents with lower back pain and bilateral buttock and posterior lower limb pain to the heels, worse on the right than the left. His MRI demonstrates some degenerative disc disease at L4/5 and LS/S1. There is contact between the L4/5 disc and the LS nerves in the lateral recesses - this may be the cause of his pain. A perineural injection on the right replicated his pain. The diagnosis is an exacerbation of pre existing degenerative changes in the lumbar spine…”

When asked: “Do you consider the operation proposed by Dr New of an L4/5 and LS/S1 decompression laminotomy and neurolysis bilaterally is reasonably necessary? If so is it your opinion that the client's need for surgery has arisen from his workplace injury?” Dr Khong replied:
“MRI demonstrates likely irritation of the LS nerve roots bilaterally at the L4/S lateral recesses. This may be the cause of Mr Mafileo's pain. Right L4 and LS injections replicated his right leg pain. His pain radiates down the buttocks, posterior thighs and calves to the heels, more suggestive of S1 radicular pain. There is no clear S1 irritation or compression. I would recommend a bilateral L4/5 decompression. However, it would be reasonable to explore the S1 nerve roots by performing a bilateral LS/S1 decompression as well given the distribution of pain. The need for surgery has arisen as a direct result of the workplace injury.”

The respondent’s evidence

The starting point of the respondent’s case is the report from the physiotherapist, Mr Webster, dated 1 April 2021 addressed to Dr Alam. He said:
“Sione has attended Precision Physio for the management and treatment of his lower back pain since the 20th of January. Initially, I diagnosed Sione as sustaining a left sided LS radiculopathy. As treatment has progressed, Sione's neurological weakness has fully restored and his lumbar flexibility is also 95% restored of full mobility. We are currently addressing his hip mobility in order to improve his bending and lifting technique.
Sione continues to make excellent progress with conservative treatment and would greatly benefit from a progression onto an active based treatment plan with my Exercise Physiologists. However, following a consultation with Dr Charles New (March 2021), Sione has been recommended to have surgery for his lumbar spine. Sione reported Dr New did not assess Sione physically or read my progress letter, only viewed an MRI scan and decided an operation was the best option for Sione.
I strongly feel this is not an appropriate option for Sione as he has made excellent progress, and continues to progress functionally. Sione continues to report symptoms, however; these symptoms are exacerbated only by sitting for more than 15 minutes. If Sione is active and walking, and he reports his symptoms ease significantly.
Sione would benefit from continued conservative treatment and pain education. Understanding his injury completely and understanding an increase in symptoms is likely when we begin to increase his load as a normal response to treatment is crucial for Sione.”
The applicant was also seen by Dr Haig, orthopaedic surgeon, initially on 15 April 2021. In a report dated 22 April 2021, Dr Haig said:
“He is a man of Tongan genesis…I found him to be a most pleasant fellow presenting in a straightforward, unembellished manner. He is 182cm tall and weighs 130kg and, as such, he is appreciably overweight and with a BMI of approximately 40. This puts him in the morbidly obese range…
Local examination of the lumbar spine showed his movements in general to be slow, as was his gait, which was antalgic favouring the right side. I did note bilateral genu varum, more pronounced on the right side than the left. He could heel and toe walk satisfactorily, though his balance was poor. There is in the low back a normal lordosis and no scoliosis and no tenderness. Flexion was such that his fingertips reached to his knees, while extension and left and right flexion were about normal. Straight leg raising was to 80/90°. In the lower extremities there was normal power. Sensation was diminished in the right lateral thigh and leg and upper medial leg and the lateral side of the foot. The knee jerks were symmetrically present. The ankle jerks were equal, but both difficult to elicit.
He had with him an MRI of the lumbar spine (12/02/2021). This was the second of the two he has had performed. There is desiccation of the three lower discs. The nerve roots escape freely and there is no central canal stenosis. The formal report reads, ‘Conclusion: MRI lumbar spine does demonstrate L4/5 and L5/S1 disc desiccation. No neurocentral compression or central protrusion is evident. Very small left-sided L3/4 disc bulge measuring 1mm is noted without compression of the exiting nerve root. Given the right-sided sciatic symptoms, there is no deviation of the right-sided nerve roots’.
Also in the documentation is the report of the earlier MRI report (04/01/2021), the report of which concludes: ‘Mild lumbar spinal spondylotic changes with no site of definite lumbar nerve root impingement’…
Though Mr Mafileo has symptoms strongly suggestive of a spinal canal or root canal stenosis, and there may be EMG evidence to support this, there is no confirmatory radiological evidence. I am therefore unsure as to Dr New's indications for decompressive surgery. I would not be recommending such surgery.
Mr Mafileo it is in the morbidly obese range, and I believe the first line of treatment is considerable weight loss.
My first diagnosis is of 'obesity'.
The second diagnosis, in terms of his low back pain, is that I believe he has 'degenerative disc disease'.
In terms of his low back, I believe his pain is discogenic in origin, the lower three discs being involved as showing on the MRI. He is morbidly obese.
There were no significant positive findings on examination other than the altered sensation of the right lower extremity which was not strictly dermatomal in distribution…
I do not believe the proposed surgery is reasonable and necessary and have given my reasons above why I believe that to be so.
I have made my suggestions regarding marked weight loss and, in the meantime, simple analgesics and anti-inflammatory agents taken on an as- required basis.”
In a further report dated 5 May 2021, Dr Haig said:
“The incident sustained at work on 3 December 2020 is not the whole and predominant cause of his diagnosable condition. The diagnosable condition is of discogenic disc disease which is age related and no doubt exacerbated by his considerable weight (130 kgs). There was a specific work-related incident when exiting his truck, he experienced pain in the right lower back and the right lower extremity.
As of when I saw him the work-related aggravation had not ceased. I do not know when the aggravation will cease and only time will tell. He has established degenerative disc disease no doubt exacerbated by his obesity. I did suggest marked weight loss would be a helpful factor and may well expedite or certainly contribute towards his recovery.”
The balance of the documents in the Reply are not relevant to the issue in dispute.

FINDINGS AND REASONS

The applicant submitted that the weight of evidence supported a finding that the proposed surgery was reasonably necessary as a result of the injury.

This was so not only in light of the opinions of Drs New and Khong, but also because of the significant pain and restrictions in activities of daily living which Mr Mafileo was suffering as outlined in his statement.
I note that, as at September 2021 Mr Mafileo complained of pain in his lower back which “radiates down both of my buttocks, thighs, calves and heels.” He also said that his pain was
also aggravated “when I sit for prolonged periods of time as this causes sharp pains.” He said that he was “unable to stand for prolonged periods of time and would not be able to walk very far without experiencing significant pain” and also occasionally experienced numbness in his right toes.
.
Of more significance to my mind is his statement that he suffers from “intermittent urinary incontinence.” This is a new symptom since it was not noted by Dr New in his early assessment of Mr Mafileo.
Indeed, Dr New specifically noted in February 2021 “fortunately there is no history of incontinence.”
That evidence to my mind suggests a deterioration in Mr Mafileo’s condition.
I say this in the context of the respondent’s submissions regarding the report of Mr Webster and the “benefits” of conservative treatment.
Mr Webster reported in April 2021, some six months before Mr Mafileo prepared his statement. He said: “I diagnosed Sione as sustaining a left sided LS radiculopathy.” There is no evidence that he saw any radiological material, although he did make reference to Dr New wanting to perform surgery because he “did not assess Sione physically or read my progress letter, only viewed an MRI scan.”
I do not accept that remark. Dr New has seen Mr Mafileo on numerous occasions. In his initial report to Dr Alam, he made reference to his “clinical examination” where he clearly assessed Mr Mafileo “physically.”
I accept that Mr Webster thought at the time that conservative treatment was showing results, and should be pursued.
In my experience, physiotherapists are firmly in favour of pursuing their mode of treatment as opposed to medical or surgical intervention. That is not a criticism: it is simply the nature of their business.
In this case, I accept the submission by Counsel for the applicant that I should prefer the opinions of Dr New as confirmed by the neurosurgeon, Dr Khong.
Counsel for the respondent submitted that in light of the views of Mr Webster and Dr Haig conservative treatment ought to be pursued, particularly since neither Dr New or Dr Khong made any reference to the results of conservative treatment Mr Mafileo had undergone at the hands of Mr Webster.
Dr Haig considered that although Mr Mafileo “has symptoms strongly suggestive of a spinal canal or root canal stenosis…there is no confirmatory radiological evidence.” He added:
“I am therefore unsure as to Dr New's indications for decompressive surgery. I would not be recommending such surgery.
Mr Mafileo is in the morbidly obese range, and I believe the first line of treatment is considerable weight loss.”
I certainly accept that Mr Mafileo’s weight may be contributing to his symptoms as opined by Dr Haig, but that of itself is not a bar to surgery, nor a reason to continue with conservative treatment.
Dr New and Dr Khong were both aware of Mr Mafileo’s weight, and both agreed that the surgery was appropriate having regard to the radiological material.
As Dr Khong noted:
“MRI demonstrates likely irritation of the LS nerve roots bilaterally at the L4/S lateral recesses. This may be the cause of Mr Mafileo's pain. Right L4 and LS injections replicated his right leg pain. His pain radiates down the buttocks, posterior thighs and calves to the heels, more suggestive of S1 radicular pain. There is no clear S1 irritation or compression. I would recommend a bilateral L4/5 decompression. However, it would be reasonable to explore the S1 nerve roots by performing a bilateral LS/S1 decompression as well given the distribution of pain. The need for surgery has arisen as a direct result of the workplace injury.”
Mr Mafileo has significant symptoms such as his altered sensation in the right leg, his discogenic pain involving the lower three discs and his problems with incontinence.
To my mind, these may well benefit from surgical intervention
The criteria of reasonableness listed by Roche DP at [88] in Diab v NRMA Ltd [2014] NSWWCCPD 72in the context of s 60 of the 1987 Act include, but are not necessarily limited to, the following:

“(a)    the appropriateness of the particular treatment;
(b)     the availability of alternative treatment, and its potential effectiveness;
(c)     the cost of the treatment;
(d)     the actual or potential effectiveness of the treatment, and
(e)     the acceptance by medical experts of the treatment as being appropriate and likely to be effective.”
At [89], the Deputy President said:

“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.”
Mr Mafileo is keen to have the surgery so that he can resume work and support his family. He has had significant symptoms in his back and legs for over a year now, and as I said, now that he has developed symptoms such as urinary incontinence, it seems to me that the proposed surgery is both reasonable and necessary.

Both Dr New, orthopaedic surgeon, and Dr Khong, neurosurgeon, consider the proposed surgery as appropriate. Alternative treatment such as conservative treatment or the injections tried by Dr New in the early period do not appear to have been effective in the long term.
The proposed surgery is accepted by medical experts as being appropriate and likely to be effective. Dr Haig did not dismiss the surgery proposed per se, only that he would not perform it given Mr Mafileo’s weight and given “no confirmatory radiological evidence.”
For the reasons given, I determine that the surgery proposed by Dr New is reasonably necessary within the meaning of s 60 of the 1987 Act.

[2021] NSWPIC 519

10 December 2021