Mago v Downer EDI Engineering Power Pty Ltd
[2025] NSWPIC 84
•12 March 2025
CERTIFICATE OF DETERMINATION OF MEMBER CITATION: Mago v Downer EDI Engineering Power Pty Ltd [2025] NSWPIC 84 APPLICANT: Saturnino Mago RESPONDENT: Downer EDI Engineering Power Pty Ltd MEMBER: Brett Batchelor DATE OF DECISION: 12 March 2025 CATCHWORDS:
WORKERS COMPENSATION - Workers Compensation Act 1987; claim for expenses pursuant to section 60 for the cost of lumbar spinal fusion surgery; undisputed injury to the lumbar spine; respondent disputed the reasonable necessity of surgery claiming it was premature as the applicant had not undergone an interdisciplinary management programme recommended by a treating occupational health physician; respondent raised issues in respect of the applicant’s recommended intake of medication and the risk of having to undergo further spinal surgery as a consequence of the surgery; applicant had fully complied with all of the physical aspects of his pain management and rehabilitation with the exception of the interdisciplinary management programme; applicant did not elect to pursue the request for surgery until he had undergone all of the physical aspects of his pain management and rehabilitation; Held – pursuant to the matters referred to in Diab v NRMA Ltd the surgery proposed by the applicant’s treating spine surgeon was reasonably necessary as a result of the undisputed back injury; respondent ordered to pay for the cost of and incidental to such surgery pursuant to section 60.
DETERMINATIONS MADE: The Commission determines:
1. The treatment proposed by Dr Nair, two stage L4-S1 spinal fusion, is reasonably necessary as a result of injury to the applicant’s lumbar spine on 31 July 2022.
2. The respondent is to pay for the costs of and incidental to such surgery pursuant to s 60 of the Workers Compensation Act 1987 (the Act 1987).
A brief statement is attached setting out the Commission’s reasons for the determination.
STATEMENT OF REASONS
BACKGROUND
1.Saturnino Mago (the applicant/Mr Mago) seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), for the cost of surgery on his lumbar spine as a result of an injury arising out of or in the course of his employment on 31 July 2022 by Downer EDI Rail Pty Ltd (the respondent).
2.On 5 October 2023, icare, the respondent’s insurer issued to the applicant a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) indicating that it:
(a) had on 7 February 2023 accepted liability for a lower back pain in respect of date of injury nominated as 31 July 2022, and
(b) disputed liability for the cost of surgery, in the form of the two stage L4-S1 spinal fusion requested by Dr Nair, the applicant’s Nominated Treating Specialist.[1]
[1] Application to Resolve a Dispute (ARD) p 15.
3.On 23 January 2024 the applicant was independently medically examined by Dr Woo, orthopaedic surgeon, at the request of Allianz Australia Insurance Ltd (Allianz) which managed the claim on behalf of icare. Dr Woo produced a report to Allianz dated 29 January 2024 in which he expressed the opinion that he did not consider the two stage L4-S1 fusion and decompression surgery recommended by Dr Hsu (who had previously requested such surgery) and Dr Nair to be reasonably necessary at that time.[2]
[2] Reply p 54.
4.Dr Woo had previously examined the applicant on 13 December 2022 at the request of Allianz and produced the following reports:
(a) dated 19 December 2022 containing a diagnosis that Mr Mago had sustained a strain injury to the lumbar spine on 31 July 2022 with aggravation of pre-existing degenerative changes, and gave a guarded prognosis depending on the response to further treatment,[3] and
(b) supplementary report dated 6 May 2023 in which he:
(i) reviewed a report of Dr Hsu dated 16 February 2023 containing a recommendation for the surgery above-mentioned, and
(ii) expressed the belief that Mr Mago should continue with conservative treatment to assist with his symptoms for another six months before considering surgical intervention.[4]
[3] Reply p 45.
[4] Reply p 51.
ISSUES FOR DETERMINATION
5.The parties agree that the following issues remain in dispute:
(a) Is the surgery recommended by Dr Hsu and Dr Nair in the form of a two stage L4-S1 spinal fusion reasonably necessary as a result of injury to the lumbar spine on 31 July 2022?
(b) Should the respondent be ordered to pay for the cost of and incidental of such surgery pursuant to s 60 of the 1987 Act?
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
6.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.
7.The parties attended a conciliation/arbitration hearing on 26 February 2025 conducted via video conference. Mr Young of counsel appeared for the applicant briefed by Mr Prieto Cardone. Mr Mago attended with his counsel and solicitor. Mr Hanrahan of counsel appeared for the respondent briefed by Mr Kim and Ms Francis. A representative of Allianz also attended.
EVIDENCE
Documentary evidence
8.The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attachments, and
(c) Application to Lodge Additional documents dated 26 February 2023 with a report of Dr Gehr, orthopaedic surgeon, dated 5 June 2023 attached. Dr Gehr independently medically examined the applicant on 5 June 2023 at the request of his solicitor.
Oral evidence
9.There was no application to adduce oral evidence or to cross-examine the applicant.
SUBMISSIONS
10.The submissions of the parties were recorded, a transcript of which can be obtained on request. In summary they are as follows.
Applicant
11.The applicant relies on his statement dated 11 November 2024,[5] which sets out:
[5] ARD p 1.
(a) the treatment he received for his back injury from his treating general practitioner, Dr Nguyen, who he first consulted on 1 August 2022;
(b) physiotherapy treatment, commencing on 5 August 2022;
(c) medication prescribed;
(d) referral to Dr Hsu, orthopaedic surgeon, who he first consulted on 24 October 2022;
(e) treatment from an exercise physiologist;
(f) cortisone injection received on 25 January 2023, which he found unhelpful;
(g) the recommendation of Dr Hsu given on 16 February 2023 that he undergo surgery;
(h) steroid injection recommended by Dr Nguyen which underwent and found not helpful;
(i) consultations with Dr Nair, spinal surgeon, commencing 4 July 2023, and the recommendation for surgery given by the doctor on 29 August 2023 following review of radiological evidence, but that there was no need to rush into such surgery, and that it should be undertaken if and when symptoms become intrusive enough to justify the risks of surgery;
(j) treatment and recommendations received from Dr Bailey, occupational health physician, commencing 23 August 2023;
(k) further physiotherapy at Hills Sports Medicine recommended by Dr Nguyen commencing on 5 June 2024;
(l) consultations with Dr Holford, pain management specialist, commencing on 25 June 2024, and
(m) treatment recommended by Dr Holford, including medial branch blocks on 14 August 2024 administered by the doctor, which did not give any relief of pain.
12.The applicant notes in his statement that as at the date thereof, he continues to consult:
(a) Dr Nguyen, his general practitioner, monthly;
(b) Chris Hughes, exercise physiologist, twice a week, and swimming twice a week, and
(c) Dr Holford.
13.The applicant lists his ingestion of Panadol Osteomol twice a day for pain relief, and the fact that he is back at work on light duties in the form of administrative duties only.
14.The applicant submits that he has done all he could do by way of non-operative treatment and management of his pain, and feels that he should undergo the spinal surgery as he has exhausted all other treatment options and has no other choice but to undergo the surgery.
15.The applicant refers to the report of Dr Gehr dated 3 May 2024,[6] that same date on which the doctor examined him. The applicant concedes that it predates the further exercise physiology entered into in June 2024 and the involvement of Dr Holford in his treatment. For that reason Dr Gehr’s report is of some assistance, but it does not show that Mr Mago has exhausted all non-surgical treatments.
[6] ARD p 32.
16.The applicant refers to the previous examination Dr Gehr carried out on 5 June 2023 when he produced a report of that date.[7] The applicant notes that in his latest report Dr Gehr says under “Summary and Conclusion” that the applicant’s symptoms and signs remain similar to what he found in the previous examination, at the time of which he recommended a pain exercise programme for six months. Dr Gehr notes in fact that is being done, and that Mr Mago was due to see a pain specialist with appointments currently being sought.
[7] See [8(c)] above.
17.The applicant notes that Dr Gehr makes a clinical finding of dysmetria (lack of coordination of movement) and/or neurological signs (“…positive nerve tension on the right side”), consistent with the findings of the treating spinal surgeons who recommend surgery. Dr Woo does not make any such finding.
18.The applicant submits that he has undergone the treatment recommended by Dr Gehr since the date of the doctor’s latest report. The applicant submits that what Dr Gehr is saying in the report dated 3 May 2024 is that, although the stage of surgery has been reached, one more regime of non-operative treatment should be undergone, and that in fact has occurred.
19.The applicant refers to the report of Dr Nair dated 29 August 2023,[8] in which the doctor reviews the updated MRI scan and recommends the very same treatment being pursued in the current application. Dr Nair adverts to the risk of further surgery due to failure of adjacent as well as operative levels. This is one of the factors raised by Dr Woo in support of his finding that the surgery was not reasonably necessary.
[8] ARD p 50.
20.The applicant submits that it is important to note that Dr Nair, as at 29 August 2023, says that there is no need to rush into surgery, but it can be undertaken when symptoms become sufficiently severe to justify the risk of surgery. That comment in 2023 should be taken in the context that Mr Mago is now, in 2025, requesting surgery because his symptoms have worsened.
21.Dr Nair in subsequent reports dated 26 September 2023,[9] 7 November 2023,[10] and
30 January 2024,[11] notes that Mr Mago continues to be focused and motivated, and has participated in all non-operative treatment. He has tried everything recommended to him at least physically. On 30 January 2023 Dr Nair notes that the applicant remains troubled by lower back and worsening lower extremity radicular symptoms.[9] ARD p 52.
[10] ARD p 53.
[11] ARD p 54.
22.The applicant’s counsel describes Dr Nair as a neurosurgeon, although I note he is in fact an orthopaedic spinal surgeon.
23.The applicant notes Dr Nair’s description of the physical disabilities then being experienced, including struggling to walk more than 300 meters and with his current work duties. The doctor suggests a temporary reduction of work hours to three days a week.
24.Dr Nair saw the applicant again on 12 March 2024[12] when the applicant notes that the doctor reviewed Mr Mago clinically and found he remained troubled by lower back and worsening left lower extremity radicular symptoms, and that approval for surgery was awaited. The applicant submits that this is again indicative that he was not rushing the surgery option.
[12] ARD p 55.
25.The applicant notes the type 2 diabetes that he developed (“type 2 DM”), asserting that it is indicative of how his symptoms have affected his mobility, and arguably, causing secondary conditions. Dr Nair says that the development of this condition is secondary to immobility.
26.The applicant refers to the consultations he had with Dr Hsu, commencing on
24 October 2022.[13] At that stage non-operative options were discussed, with a re-examination on 28 December 2022,[14] when an L4-5 epidural steroid injection was recommended.[13] ARD p 63.
[14] ARD p 66.
27.By the time Dr Hsu saw Mr Mago on 16 February 2023,[15] he notes that the doctor is seeking a pre-operative assessment and clearance from Dr Tanswell, felt that non-operative treatment had failed, and a request for surgery was forwarded to the insurer.
[15] ARD pp 67 and 68.
28.The applicant comments upon the reports of Dr Woo whose three reports dated
19 December 2022, 6 May 2023, and 29 January 2024 are summarised at [3]-[4] above. The applicant notes that the latest report of Dr Woo predates the further exercise physiology he undertook from June 2024, and the treatment administered by Dr Holford, as does the report of Dr Gehr dated 3 May 2024.29.The applicant submits that Dr Woo’s finding of normal sensation and mode of power on neurological examination of both lower limbs contrasts with the findings of Dr Nair who notes worsening symptoms on 30 January 2024.
30.The applicant refers to his statement evidence that the exercise physiology was unhelpful. He notes Dr Woo’s comment that he did not consider the request for surgery to be reasonably necessary at that time, the doctor’s comments that rigid fixation anterior and posterior would impose excessive movement on the mobile disc at L3/4, with a real risk of aggravation of degenerative disc disease at that level following the requested surgery. That could happen within three to five years following the surgery, requiring further surgery.
31.The applicant submits that Dr Woo, while he addresses one of the many risks of surgery, does not consider any of the matters in favour of surgery.
32.The applicant reviews the subsequent pain management programme conducted by the exercise physiologist, Christopher Hughes, over a period of four to five months.[16]
[16] Reports commencing 6 June 2024, Reply pp 66-70.
33.The applicant refers to the treatment he received from Dr Holford, interventional pain medicine specialist, from 25 June 2024.[17] On that date the doctor records a consistent history of the pain experienced, axial bilateral lumbar pain radiating down both limbs, left side dominant, with paraesthesia in the soles of his feet, and aggravated by sitting and a number of activities. The applicant submits that this is indicative of another clinical recording of radiculopathy.
[17] Reply p 71.
34.The applicant notes that Dr Holford is aware of the involvement of Dr Hsu and Dr Nair in his treatment, the recommendation by Dr Woo for conservative treatment, and the involvement of Dr Bailey, an occupational physician, in treatment. The applicant also notes Dr Holford’s observation of him mobilising with an extremely antalgic gait.
35.The applicant submits that Dr Holford, as a pain specialist, has conducted an examination of him and this thoroughly confirms the history of the original incident, the development of symptoms, treatment to date, and a review of the scans in evidence. Dr Holford recommends bilateral transforaminal epidural injections which were administered. While there is no further evidence from Dr Holford, Mr Milo says in his statement that these did not relieve his pain.
36.The applicant submits that to the extent that he has not undergone the psychological treatment recommended by Dr Bailey,[18] it is not of concern to the Commission in this case. What is being proposed is surgery in response to organic traumatic injury clearly confirmed on clinical examination by all who treated him, including Dr Gehr. The only medical practitioner who is “out of step and alone in finding no neurological signs is Dr Woo.”[19]
[18] Reports commencing 23 August 2023, Reply pp 30-41.
[19] Transcript (T) p 26.10.
37.The applicant submits that targeted diagnostic injections, recommended by Dr Holford, have not relieved symptoms, and the recommendation for surgery is fairly conservatively but consistently advocated by those who treat him. Mr Mago has undergone all physical treatment that has been recommended to date, and is now at the point where he wants and needs to undergo this surgery, understanding the risks involved, not limited to those outlined by Dr Woo.
Respondent
38.The respondent submits that the applicant is prematurely seeking surgery in circumstances where that idea has been planted in his mind by Dr Nair as the only option available to him, which is not consistent with the evidence. The respondent submits that Dr Nair has provided an inadequate explanation of how he reached his conclusions, and the suggestions made by the applicant “…put a – quite a gloss and a significant spin on the nature of the evidence which has been provided …”[20]
[20] T p 27.10 – 27.15.
39.The respondent notes that the epidural steroid injections recommended by Dr Holford were diagnostic in their intention and purpose, not therapeutic. The respondent submits that it is misconceived to regard them as given for the relief of pain; if the injections are diagnostic and there is no relief of pain, the respondent submits that there is no pathology at that level worthy of surgery. There is nothing to do because the injections have produced no pain.
40.The respondent submits that the diagnostic purpose and therapeutic purpose of the injections produce different, indeed opposite, outcomes and they are entirely inconsistent with one another
41.The respondent submits that warrants a finding that the surgery proposed is not reasonably necessary at this time because there is inadequate evidence to satisfy the Commission, having regard to the factors that are raised in Diab v NRMA Ltd,[21] having been explored sufficiently to allow an appropriate outcome to be reached in the circumstances of the case.
[21] [2014] NSWWCCPD 72 (Diab).
42.The respondent refers to what Roche DP said at [88]-[89] of Diab, noting the comment that as always, each case will depend on its facts.
43.The respondent submits that the facts of the case expose gross omissions on the part of the applicant in describing what the doctors said to him, in performing treatment tasks that have been recommended to him by his doctors, and in putting forward the proposal, as does Dr Nair, that the surgical approach that will make any difference.
44.The respondent’s essential submission is that there has been inadequate management of the applicant’s condition so far, and that there should be a multidisciplinary pain management programme put in place as recommended by multiple doctors.
45.The respondent works its way through the factors set out in Diab in respect of treatment pursuant to s 60 of the 1987 Act, emphasising the following matters.
46.The respondent notes that the applicant’s submission that he has done everything physically that has been recommended to address his pain, and of which he is capable, but submits that he has refused to take on a multidisciplinary pain management programme, or even to read the book about chronic pain recommended to him. Mr Mago has refused to engage with a psychologist when he was at the examination by Dr Bailey, and put on a significant demonstration of abnormal pain behaviour on the occasion of examination by Dr Bailey.
47.The respondent relies on the reports of Dr Bailey evidencing consultations from
23 August 2023 through until 15 November 2023.[22] The respondent notes that Dr Bailey’s opinion is based on the evidence based management guidelines prioritising the biopsychosocial model of care. It is not limited to the biological factors as Dr Nair has done, without really specifying what the factors are, but rather just reaching conclusions that there are neurological findings such as radiculopathy.[22] Reply pp 30-41.
48.The respondent notes Dr Bailey’s recording on 15 November 2023 that Mr Mago has been participating in customised and supervised home exercise rehabilitation using the SWORD computer technology and more recently the Physitrack programme for 12 weeks with good compliance. The respondent however submits that these are quite different from the pain management programme which is one based on the biopsychosocial model of care.
49.The respondent submits that, notwithstanding this reference in the report of Dr Bailey of Mr Mago’s participation in the home exercise programme, it is not mentioned in his (the applicant’s) statement evidence. All that appears there is the “repetitive hypnotic suggestion that there’s been – has not been helpful for my pain.”[23] The applicant submits that such self-serving statements make no reference to the objective findings that have been offered by Mr Mago’s medical practitioners. The applicant notes the applicant’s failure to read about pain management on the “My Back Pain” website, the reference to which was given by Dr Bailey.
[23] T p 34.05.
50.The respondent questions the applicant’s medicinal intake, noting reference to the intake of Amitryptline by Dr Bailey, a recognised treatment for neuropathic pain. The respondent submits that there is no evidence that the applicant discussed this medication with his general practitioner. The respondent also submits that an examination of the clinical notes of the general practitioner reveals that Mr Mago was being prescribed Voltaren and Celebrex before the accident.[24]
[24] T p 58.10.
51.The respondent submits that if the applicant has sensitisation of his pain, surgery is not going to make any difference, so that the first Diab factor of the appropriateness of surgery having regard to inconsistent neurological signs, and the differing findings with respect to the applicant’s gait, would raise grave reservations about the proposed surgical treatment.
52.The respondent submits that there have been significant differences of opinion in relation to the existence of neurological signs and altered gait such that the applicant’s presentation to doctors and treaters is unreliable.
53.The respondent submits that the drug treatment that has been prescribed is entirely inadequate, with the applicant’s failure to record any discussion he may have had with his general practitioner Dr Bailey’s suggestion of taking Amitriptyline
54.The respondent notes the refusal of the applicant to engage in or cooperate in any form of psychological treatment or a multidisciplinary approach to pain management.
55.The respondent notes that the cost of the proposed treatment is a factor to be considered, suggesting without any evidence to support it that pain management could cost in the order of $6,000 - $7,000, whereas there is evidence that the two stage surgery proposed by
Dr Nair would cost in the order of $30,000, plus hospital accommodation plus rehabilitation, meaning that the applicant may require pain management in any event.56.The respondent submits that there has been no acknowledgement by the applicant in his evidence of the risks of surgery, although Dr Nair has recorded that he explained the risks to Mr Mago.
57.The respondent raises the actual or potential effectiveness of the surgical treatment, noting pursuant to one of the factors mentioned in Diab that it is relevant but not determinative. The respondent says that Dr Nair has not offered any opinion about the potential effectiveness of the treatment..
58.In respect of the final Diab factor, the acceptance by medical experts of the treatment, the respondent submits that there are two independent medical experts both saying, “…hang on, there is no need to rush into surgery”.
59.The respondent questions comorbidities from which the applicant suffers, namely diabetes and heart problems. The applicant submits that no doctor other than Dr Nair, who is not an expert on diabetes, comments that this condition is secondary to immobility.
60.In respect of the applicant’s heart condition, the respondent notes that Dr Gehr records that the risk to the heart condition will have to be assessed by a cardiologist. There is no evidence from a cardiologist.
61.The applicant notes that there is no evidence as to the outcome of the injections suggested by Dr Holford.
62.The respondent criticises the applicant’s statement, noting the consistency of language and submitting that it has just been prepared with reference to the attendances on the general practitioner, and other treating practitioners, looking at the histories given to those practitioners on those occasions, and recording that material in the statement. It does not contain a really careful analysis by Mr Mago of his experience of pain, just a litany of complaints lifted from those materials, put into the statement, and signed by the applicant.
Applicant in reply (including interruptions by the respondent)
63.The applicant refers to the extensive prescription of medication recorded in the clinical records of Dr Nguyen, such as Celebrex, Panadeine Forte, Panadol Osteo, and Voltaren, over the period he treated Mr Mago since his injury. The respondent says that there is no evidence that the applicant actually took this medication. The applicant submits that there is a reasonable inference that he did. The respondent submits that the submission about the prescription of drugs is unreliable, as Mr Mago was being prescribed Voltaren and Celebrex before the accident.
64.The applicant submits that in respect of the injections prescribed by Dr Holford, while there is no further report from the doctor, he found it ineffective.
65.In respect of the SWORD computer technology and the My Back Pain website to which the applicant was referred by Dr Bailey, the applicant submits that this needs to be viewed in the context that it was discussed in November 2023, before the significant increase in Mr Mago’s symptoms in January 2024. The radicular symptoms became more obvious from that time in accordance with Dr Nair’s findings.
66.When Dr Baily wrote his last report, the applicant notes that it was before those who treat him were aware of the worsening radicular pain in the left leg. The applicant also submits that looking at a computer programme and doing things in response thereto are very different things from receiving hands on therapy, which he received twice a week from June 2024 with the exercise physiologist.
67.The applicant submits that, although Dr Bailey did not notice any antalgic gait, in the following paragraph of his report dated 15 November 2023 he recorded on examination tenderness to light pressure, consistent with allodynia (pain due to stimulus that does not normally provoke pain). This is consistent, according to the applicant, with a neurological sign. The applicant submits that the finding of no antalgic gait by Dr Bailey in November 2023 is very different from the antalgic gait observed by those who treated him on a number of occasions after January 2024, and consistent with the radicular signs, and with worsening neurological complaints.
68.The applicant submits that it is the way he feels pain that he wants treated, not how he can cope in terms of behaviour of therapeutical approach to pain. What he wants is the organic structural solution suggested by two spinal surgeons, and accepted by Dr Gehr subject to pain management which, it is submitted has been pursued thoroughly by Dr Holford together with the exercise physiology since June 2024.
69.In respect of the respondent’s submissions on the epidural steroid injections recommended by Dr Holford which were administered on 1 November 2024, the applicant notes that Dr Hsu recommended these on 28 December 2022,[25] with a review thereafter. His reaction to that trial L4-5 steroid injection “…to help ease the pain” is recorded at [35] in his statement dated 11 November 2024 is that it was “unhelpful”.[26]
[25] ARD p 66.
[26] See [32]-[35] applicant’s statement 11 November 2024 ARD pp 5-6.
70.The applicant submits that, while the recommendation for surgery prior to January 2024 may have been premature, it was not after the worsening of symptoms in January 2024. The respondent counters this submission with the note that Dr Gehr reported in May of 2024, after the worsening of pain in January 2024. Dr Gehr was presumably aware of the deterioration, so that he factored that into his report.
FINDINGS AND REASONS
Diab v NRMA Pty Ltd
71.Paragraphs [88]-[89] of Diab are in the following terms:
“88. In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
· (a) the appropriateness of the particular treatment;
· (b) the availability of alternative treatment, and its potential effectiveness;
· (c) the cost of the treatment;
· (d) the actual or potential effectiveness of the treatment, and
· (e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
89. With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
The reference to Rose in [88] is to Rose v Health Commission (NSW).[27]
[27] [1986] NSWCC; (1986) 2 NSWCCR 32.
The applicant’s treatment
72.I have set out in detail the parties’ submissions which give a comprehensive summary of Mr Mago’s treatment since the time of his accident on 31 July 2022.
73.The applicant submits that he has done all the physical treatment that has been recommended by his treating practitioners, a claim not disputed by the respondent. The respondent submits that he has refused to undergo further treatment recommended by
Dr Kevin Bailey, occupational health physician, who saw Mr Mago for the first time on
23 August 2023, on referral by general practitioner Dr Nguyen. Dr Bailey’s reports are issued under the name of ARC (Active Recovery Clinics) of 66 Clarence Street, Sydney (ARC).74.In his first report dated 23 August 2023[28] Dr Bailey records an uncontroversial history of the work injury on 31 July 2022, management of the back injury by Dr Nguyen, Dr Hsu, and Dr Nair, present symptoms, current activities, and other medical/injury history. Dr Bailey records his examination of Mr Mago, and the assessment by an exercise physiologist who requested advice from Dr Bailey as Mr Mago was unable to do any lumbar flexion beyond a few degrees. Dr Bailey tried to reassure the applicant that this new restriction of lumbar flexion would pass. The doctor recorded that Mr Mago was unclear what operation was being advised, being “more worried about my heart”. He was not sure if he wished to undergo surgery and was very concerned about ongoing pain.
[28] Reply p 30.
75.Under “OPINION” Dr Bailey recorded that Mr Mago displayed significant pain behaviour toward the end of the clinical examination so it was terminated. Subsequent pain behaviour was exhibited in the subsequent sessions with ARC’s exercise physiologist and psychologist. Dr Bailey commented in respect of surgery:
“Mr Hsu has recommended a 2-stage fusion earlier and a second opinion is being followed but in my opinion the role of surgery is very unclear. Mr Mago has persistent, constant and increasing easily aggravated back pain with overtly recognisable pain behaviours and he is likely to have central sensitisation . There is also mention in physiotherapy correspondence of pain avoidant behaviour.”
76.Dr Bailey discussed his findings and recommendations with the ARC exercise physiologist and psychologist. He recommended that Mr Mago commence a customised and supervised home exercise programme using the SWORD computer technology. He noted that the ARC psychologist could not complete intake assessment due to discomfort. Dr Bailey noted that the applicant would be supported through the programme and reviewed formally in the ARC clinic in one month’s time.
77.On review on 20 September 2023[29] Dr Bailey noted Mr Mago had been participating in customised and supervised home exercise rehabilitation using Physitrack template programme for four weeks with moderate compliance. As to progress, the applicant told
Dr Bailey that there had been no improvement with the exercise programme over the previous four weeks in his range of motion, functional capacity or pain. He advised the doctor of the second opinion of Dr Nair, and was told that surgery was needed. Mr Mago described his pain in the central lower spine region and left paralumbar region, radiating to the medial thigh. It was constant and aggravated by bending and squatting, with recent increase in pain after bowel action. At worst, the intensity of the pain was rated at 7/19 and at its best 1-2/10.[29] Reply p 34.
78.Clinical examination by Dr Bailey was limited by pain. Tenderness on the entire lumbar central spine and paralumbar regions on very light pressure was elicited, consistent with allodynia. Mr Mago felt that the only way forward was to undergo an operation as had been recommended by two surgeons, but was agreeable to continuing the ARC exercise programme as a “prehabilitation” process before surgery. It is not clear whether it was Dr Bailey or Mr Mago mentioned this unusual term, highlighted by the respondent in submissions. I think it unlikely it was mentioned by the applicant.
79.Under “OPINION” Dr Bailey noted Mr Mago’s pain was persistent, constant and increasingly easily aggravated. Allodynia was manifested on examination. Dr Bailey said that it is likely that the applicant has significant central sensitisation of his low back pain, and that given that Mr Mago had decided to proceed with surgery his ARD programme could only currently aim to increase his spinal muscular condition pre-operatively.
80.Dr Bailey noted that the ARC psychologist had identified psychosocial barriers to recovery and offered psychological support; however at that stage the applicant had declined receiving support. The psychologist recommended Mr Mago’s general practitioner monitor his mental health.
81.On face-to-face consultation of 18 October 2023[30] Dr Bailey noted the applicant’s statement that there had been no improvement in his range of motion, functional capacity or pain in the previous four weeks. On examination, Dr Bailey noted no neurological impairment, but tenderness over the entire back consistent with allodynia. He noted that Mr Mago saw
Dr Nair on 23 September 2023 who again recommended surgery. In response to an enquiry from Mr Mago about what would happen in respect of his back pain at the end of the programme, Dr Bailey gave him the “mybackpain” website form the National Health and Medical Research Council, and urged him to read through the website carefully to inform him of contemporary evidence-based research on chronic pain. The potential role of low-dose Amitriptyline was discussed which Mr Mago was prepared to discuss with his general practitioner.[30] Reply p 37.
82.On the final face-to-face attendance of the applicant on 15 November 2023[31] Dr Bailey noted that there had been good compliance with the applicant’s participation in customised and supervised exercise rehabilitation using the SWORD computer technology and more recently the Physitrack programme for 12 weeks. The findings on examination were that
Mr Mago walked with an antalgic gait, symptoms consistent with allodynia, and limited lumbar flexion and extension, and lateral flexion, because of back pain. When asked if he had accessed the “mybackpain” website, Mr Mago respondent in the negative. He was again advised to do this. Dr Bailey noted that Mr Mago was unclear about the role of exercise going forward, believing that exercise was likely to inflame his back. Notwithstanding this, the applicant’s compliance with the physical aspects of the ARC programme had been good despite this belief.[31] Reply p 41.
83.Under “OPINION” Dr Bailey noted that Mr Mago had declined psychological intervention and support throughout the ARC programme. The doctor noted that there was clear evidence of central sensitisation , and that to date Mr Mago had not taken on board any offered pain education. He said that if he were to become receptive to pain education and psychological support, then he may benefit from a longer interdisciplinary pain management programme focusing on those two interventions. Dr Bailey noted that notwithstanding that the ARC psychologist had identified psychosocial barriers to recovery, Mr Mago declined receiving support over the course of the programme. A recommendation for a general practitioner referral for mental health care plan (“MHCP”) was encouraged. The applicant was discharged from the ARC programme.
Medication intake
84.The respondent’s submissions include that the applicant did not discuss the suggestion by Dr Bailey that he take Amitriptyline with his general practitioner, and that he was being prescribed Voltaren and Celebrex before the accident.
85.An examination of Dr Nguyen’s clinical notes reveals that:
(a) the applicant was prescribed Voltaren and Celebrex before the date of injury on 31 July 2022 for what appeared to be a painful right foot which was recorded in the clinical notes of 10 August 2020 as “Gout R Foot”,[32] and of 12 August 2020 as “Gout is better for Colchicine”[33] (used to treat gout). On 29 January 2021 Dr Nguyen recorded “Follow up of investigation results. Advise Ankle”,[34] and Celebrex was prescribed, one capsule daily after meals for two weeks. On 14 April 2022 Dr Nguyen recorded “Advise re: Ankle pain and Voltaren”;[35]
[32] ARD p 89.
[33] ARD p 90.
[34] ARD p 90.
[35] ARD p 91.
(b) the applicant attended on Dr Ngyuen on 1 August 2022, the day after injury, when the doctor recorded “Low back pain from work, Had CT”.[36] On 12 August 2022 Dr Nguyen noted that an improvement in back pain after seen by physio, and prescribed Panadeine Forte and Voltaren.[37] Dr Nguyen consistently to prescribed pain relieving drugs thereafter;
(c) while there is no record of the applicant specifically discussing Amitriptyline with Dr Nguyen, it appears that he did discuss the treatment being received from ARC. On 29 August 2023 Dr Nguyen recorded:
“Back pain + worse after opening bowel
Poor ROM, Tender low back
Advise re Arc Report”[38]
That was obviously a reference to Dr Bailey’s report dated 23 August 2023. I note that it was not until 15 November 2023 that Dr Bailey recommended that Mr Mago discuss a trial of Amitriptyline with his general practitioner.
[36] ARD p 93.
[37] ARD pp 93-94.
[38] ARD p 107.
86. I accept the applicant’s submission that, while there is no specific reference in his statement
to the intake of medication prescribed by Dr Nguyen, it is a reasonable inference that he did
take what was continuously prescribed for him by Dr Nguyen after the date of injury. I note
that the applicant says at [60] of his statement dated 11 November 2024 that he currently
takes Panadol Osteomol twice a day for pain relief.
Dr Holford
87.On referral by Dr Nguyen, the applicant underwent pain management treatment by
Dr Holford, interventional pain medicine specialist, from 25 June 2024 untilI November 2024.[39][39] See reports 25 June 2024 – 1 November 2024 Reply pp 71-79.
88.On 25 June 2024 Dr Holford recorded the history of Mr Mago’s treatment, noting that he was currently seeing an exercise physiologist twice a week. He listed current medication as:
(a) Panadol Osteo;
(b) Panadeine prn, used infrequently as results in GI side effects;
(c) Caduet (a drug used to treat high blood pressure and high cholesterol);
(d) Aspirin;
(e) Micardis, and
(f) Diabex.
Dr Holford noted:
“Saturnino has not previously trialled any medications for neuropathic pain. The trial of Amitriptyline recommended by Dr Bailey did not proceed.”
89.Dr Holford instituted a management plan of diagnostic medial branch blocks to the L3/4, L4/5 and L5/S1 facet joints to see if Mr Mago had significant facet joint pain that may have ben amenable to treatment with radiofrequency facet joint denervation. The doctor noted that if there was a negative response to the diagnostic blocks to the lumbar facet joints, bilateral L5/S1 transforaminal epidural steroid injections targeting the L4/5 and L5/S1 disc pathology would be undertaken. Dr Holford noted that those injections were more likely to be effective that the previous L4/5 interlaminar epidural steroid injection. The applicant was given a prescription of Gabapentin for neuropathic pain. The doctor said that in the longer term there may be a role for clinical psychology input as recommended previously by Dr Bailey, and also that there may also be a role for an intensive pain management programme.
90.On 17 September 2024 Dr Holford noted that there was a negative response from the blocks, with no alteration in the applicant’s pain for the duration of the local anaesthetic. This is confirmed by what Mr Mago says at [56] of his statement dated 11 November 2024. Further treatment options were discussed. A trial of bilateral L5/S1 transforaminal epidural steroid injections targeting the discal pathology was recommended as being reasonable at both the L4/5 and L5/S1 segments. Dr Holford spent significant time discussing with Mr Mago the nature of his pain, and the rationale of exhausting less invasive treatment options before considering surgery, and the role of multidisciplinary input in pain management. He noted that the applicant had difficulty in understanding the complex concepts of the nature of his pain.
91.The applicant underwent the injections recommended by Dr Holford. There is no record from Dr Holford, as to the outcome of these, but the applicant says at [59] of his statement dated 11 November 2024 that from May 2024 to the present time he has continued to consult with Dr Nguyen, Chris Hughes, exercise physiologist, and Dr Holford. He says at [67]-[68] of the statement that:
“67. I feel that I should undergo the spinal fusion at L4/5 and L5/S1 because I feel I have exhausted all other treatment options and have no other choice but to have the surgery I am in immense pain and am prepared to try anything to reduce my symptoms and restore some degree of quality of life and hopefully enable me to return to work in some capacity.
68. I confirm that I have had the risks explained to me by Dr Nair. Having considered all the opinions and advice from my treatment providers, I maintain that I require the spinal fusion at L4/5 and L5/S.”
92.It is evident from the foregoing statement that Mr Mago did not receive any benefit from the latest injections recommended by Dr Holford. Dr Holford said that those injections were more likely to be effective than the previous L4/5 interlaminar epidural steroid injection. That injection was prescribed by Dr Hsu. Given this comment by Dr Holford, and his comment on the previous injection prescribed by Dr Hsu, it appears that the bilateral L5/S1 transforaminal epidural steroid injections were designed to reduce symptoms rather than for a diagnostic purpose.
Dr Nair
93.Dr Nair saw the applicant over the period from 4 July 2023 to 12 March 2024.[40]
On 28 August 2023 Dr Nair counselled the applicant about the risks of surgery, which are significant. The doctor said that there was no need to rush into surgery, and this can be undertaken if and when the symptoms become intrusive enough to justify the risks of intrusive surgery.[40] See reports to Dr Nguyen referred to at [19] – [25] above.
94.On 29 September 2023 Dr Nair reported that the applicant’s symptoms were intrusive, and his preferred approach to surgery was discussed. Options for treatment were discussed, including operative and non-operative options. Dr Nair counselled Mr Mago on the risks of surgery. Dr Nair recorded that Mr Mago would deliberate on the information provided.
95.On 7 November 2023 Dr Nair reported that Mr Mago continues to be very focussed and motivated, and had participated in all non-operative treatment, noting that he was to be reviewed by Dr Woo in January.
96.On 30 January 2024 Dr Nair recorded that the applicant’s radicular symptoms were worsening, and that he was struggling to walk more than 300 metres. He qualified for disability parking, and was struggling with his current work duties of seven hours a day, five days a week. Dr Nair suggested a temporary reduction of work hours to three days a week.
97.On 12 March 2023 Dr Nair reviewed the applicant again, noting that he remained troubled by lower back and worsening left lower extremity radicular symptoms, and that approval for surgery was awaited. This had previously been requested in a report dated
15 February 2024 in which Dr Nair said:“In view of a permanent and anatomical aggravation as evidenced by objective patho-anatomy, it is my view as a reconstructive spinal surgeon that this aggravation can only be rectified surgically as such I request funding for surgery. I have asked him to continue with current treatment t including gentle stretching. He remains on light duties. He has also developed type II DM which is secondary to immobility”[41]
[41] ARD p 56.
Dr Woo
98.In his last report dated 29 January 2024 Dr Woo noted on examination that neurological examination of the applicant’s both lower limbs showed normal sensation and motor power. There was no muscle wasting. The right thigh was 1cm bigger than the left and the right calf 1cm bigger than the left. In keeping with right hand dominance. Reflexes were normal and symmetrical. Dr Nair reviewed the radiological evidence.
99.In answer to a number of specific questions, Dr Woo relevantly said:
(a) Mr Mago has ongoing lower back pain with no specific radicular complaints;
(b) the workplace incident of 31 July 2022 was the substantial contributing factor to Mr Mago’s current presentation, being aggravation of pre-existing degenerative changes in the lumbar spine;
(c) he would recommend that Mr Mago to continue with exercise physiology and strengthening exercises for the next six months, one session per week under supervision for 12 weeks and then continuing with gym and/or home exercises for the next 12 weeks. I would consider this the most appropriate treatment for Mr Mago at this time because he has multilevel disc degeneration at L4/5, L5/S1 as well as L3/4;
(d) with reference to the two-stage L4-S1 fusion and decompression recommended by Dr Hsu and Dr Nair, he did not consider such surgery to be reasonably necessary at this time. The rigid fixation (anterior and posterior) would impose excessive movement to the mobile disc at L3/4, and there was a real risk of aggravation of degenerative disease at that level following the requested surgery at the L4/5 and L5/S1 levels with regard to the natural progression of degenerative changes in the lumbar spine. That could occur within three to five years, requiring further surgery at that level. A good outcome of repeated lumbar spine fusions is unlikely;
(e) it is unlikely for Mr Mago to return to his pre-injury duties;
(f) the requested surgery is the standard surgical procedure recommended by most of the spinal surgeons, neurosurgeons, or orthopaedic surgeons;
(g) he agreed with Dr Bailey’s opinion that there is a definite psychological element in Mr Mago’s current presentation. It was important for him to learn and practise pain management skills, including psychological counselling;
(h) the outcome of either surgery is unpredictable;
(i) the risks to Mr Mago’s heart condition had to be assessed by a cardiologist, and
(j) the prognosis for full recovery was guarded.
Dr Gehr
100.The applicant’s submissions in respect of the reports of Dr Gehr dated 5 June 2023 and
3 May 2023 are referred to above at [15]-[18]. I accept those submissions.101.There is no doubt that the applicant experienced a worsening of his symptoms in January 2024, prior to the report of Dr Gehr, although not reflected in the report of Dr Woo dated
29 January 2024. Dr Woo recorded that the applicant complained of constant lower back pain, had pain on walking 30 metres and that walking was restricted to 300 metres. His request for a parking spot next to the office building in which he worked (adverted to by Dr Nair in his report dated 30 January 2024) had been rejected, obliging him to walk the 375 metres from his parking spot to the building.102.Dr Gehr had a copy of the report of Dr Woo dated 29 January 2024 when preparing his report dated 3 May 2024.
103.Dr Gehr does mention the note of Dr Woo stating that if Mr Mago did have the proposed surgery, he may develop problems at the L3/4 level. He said:
“This is always a consideration in spinal fusion and would be a matter that his treating spinal surgeon would most likely discuss with the patient.”
104.The worsening of the applicant’s symptoms in January 2024 is confirmed by reference to the clinical notes of Dr Nguyen. There are entries in the notes in respect of consultations on the doctor on 18, 25, 29, January 2024 and 2 February 2024 all recording increasing or severe back pain whilst performing daily activities.[42]
[42] ARD pp 113-114.
105.In my view the opinion in the report of Dr Gehr dated 3 May 2024 should be accepted. The applicant has undergone the pain management programme suggested by Dr Gehr.
Further discussion
106.The respondent’s case is based essentially on the following premises:
(a) the risk that the applicant may have to undergo further surgery at the L3/4 level in three to five years. Dr Nair and Dr Gehr have addressed this issue;
(b) that Mr Mago has refused the psychological counselling suggested by Dr Bailey, and declined to access the “mybackpain” website in respect of the management of such pain, to give him an increased understanding of contemporary evidence based research on chronic back pain. This is acknowledged by the applicant. Dr Bailey in his final report dated 15 November 2023 says that if Mr Mago were to become receptive to pain education and psychological support, then he may (emphasis added) benefit from a longer interdisciplinary pain management programme focusing on those two interventions, and
(c) the intake of medications. This has been discussed above.
107.Dr Bailey did recommend in his report dated 15 November 2023 a general practitioner referral for a mental health care plan (MHCP). Prior to the date of this report, Dr Nguyen reported to Allianz on 11 October 2023 that:
“I agree with Dr Bailey regarding psychological support for Mr Mago. However, he is mentally preparing for surgery which has been recommended by two spinal surgeons. The psychological support for rehabilitation perhaps should be delayed till after the surgery.
I will monitor Mr Mago’s mental health in each and every encounter with him.”[43]
[43] Reply p 44.
This comment should be viewed in the context of Dr Nguyen being the applicant’s long term treating general practitioner.
108.The whole of the evidence must be considered. When this is done, I accept that the applicant has discharged the onus on him to show that the surgery proposed both by Dr Hsu and
Dr Nair is reasonably necessary as a result of injury to the lumbar spine on 31 July 2022.
On the respondent’s case, Mr Mago may benefit from the longer interdisciplinary management programme recommended by Dr Bailey. As opposed to this, he has received advice from two spinal surgeons now recommending surgery. He certainly did not rush into the decision to adopt the surgical option, and has been fully compliant with all of the physical treatment recommended to date, including pain management by Dr Holford. As at the date of his statement on 11 November 2024 Mr Mago continued to undergo exercise physiology administered by Christopher Hughes. He continued to suffer ongoing lower back and worsening left lower extremity radicular symptoms causing significant pain and restriction of his daily activities.109.Having regard to the matters discussed by Roche DP at [88] – [89] in Diab, I find that:
(a) the treatment recommended by Dr Nair, two stage L4-S1 spinal fusion, is appropriate treatment for the injury to the lumbar spine suffered on 31 July 2022;
(b) availability of alternative treatment has been fully explored, with the exception of the longer interdisciplinary management programme, including psychological counselling, recommended by Dr Bailey. Dr Nguyen has commented on the psychological support offered to the applicant;
(c) the cost of the proposed treatment is not insignificant, and must be considered alongside the cost of alternative treatment. The cost of alternative treatment proposed by Dr Bailey is not in evidence, although an estimate thereof was offered by the respondent in submissions.[44] I accept that the cost of such treatment is likely to be less that the cost of the surgical treatment proposed by Dr Nair. I do not consider that the cost of possible further surgery at the L3/4 level should be a factor in determining the reasonable necessity of the current surgery proposed;
(d) based on the opinions of Dr Hsu, Dr Nair, and Dr Gehr, I find that the proposed surgery has the potential to be effective in treating the applicant’s lower back and worsening left lower extremity radicular symptoms causing significant pain and restriction of his daily activities, and
(e) the treatment is accepted by medical experts, a matter conceded by Dr Woo.
[44] T p 37.20.
SUMMARY
110.The treatment proposed by Dr Nair, two stage L4-S1 spinal fusion, is reasonably necessary as a result of injury to the applicant’s lumbar spine on 31 July 2022.
111.The respondent is to pay for the costs of and incidental to such surgery pursuant to s 60 of the 1987 Act.
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