Mardasi v Shear Glass and Aluminium Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Mardasi v Shear Glass and Aluminium Pty Ltd [2023] NSWPIC 94
APPLICANT:	Majid Mardasi
RESPONDENT:	Shear Glass and Aluminium Pty Ltd
Member:	Jill Toohey
DATE OF DECISION:	9 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for cost of L3/4 and L5/S1 left endoscopic spine surgery proposed by Dr Singh; applicant had accepted injury to his lumbar spine arising out of or in the course of his employment; whether the proposed treatment is reasonably necessary as a result of his injury; Held – proposed treatment at L3/4 is not reasonably necessary; the weight of the evidence supports the finding that proposed treatment at L5/S1 is reasonably necessary; respondent to pay the costs of and associated with left endoscopic L5/S1 surgery proposed by Dr Singh.
determinations made:	1. The applicant sustained injury to his lumbar spine arising out of or in the course of his employment with the respondent on 29 October 2021. 2. The treatment proposed by Dr Singh in the form of L3/4 left endoscopic spine surgery is not reasonably necessary as a result of the applicant’s injury. 3. The treatment proposed by Dr Singh in the form of L5/S1 left endoscopic spine surgery is reasonably necessary as a result of the applicant’s injury. 4. The respondent to pay the applicant’s costs of and associated with the L5/S1 left endoscopic spine surgery proposed by Dr Singh.

STATEMENT OF REASONS

BACKGROUND

Majid Mardasi (the applicant) was employed by Shear Glass and Aluminium Pty Ltd (the respondent) on 29 October 2022 when a heavy glass door fell on him from a truck he was unloading. The door struck him on his back. He was taken to Westmead Hospital where he had X-rays and was discharged. He has not worked since.
The respondent accepted liability for injury to Mr Mardasi’s lower back.
Following the accident, Mr Mardasi attended on his general practitioner, Dr Soheyl Samimi Darzikolahi, who referred him to Dr Matthew Giblin, spinal surgeon.
Dr Giblin first saw Mr Mardasi on 21 April 2021. He noted an MRI suggested a disc protrusion at L3/4 with minor foraminal narrowing due to degenerative disc disease at L5/S1. He referred Mr Mardasi for two steroid injections and a further MRI. He concluded he was unsure whether surgical treatment would benefit Mr Mardasi and suggested Dr Darzikolahi obtain a second opinion.
Mr Mardasi subsequently saw general practitioner, Dr Eric Lim, who referred him to orthopaedic surgeon, Dr Bhisham Singh. Dr Singh recommended Mr Mardasi undergo L3/4 and L5/S1 left endoscopic spine surgery.
By dispute notices issued on 6 December 2021, 25 February 2022 and 20 July 2022, the respondent disputes liability to meet the cost of the treatment proposed by Dr Singh.

ISSUE FOR DETERMINATION

The parties agree that the issue remaining in dispute is whether the treatment proposed by Dr Singh is reasonably necessary as a result of the injury to Mr Mardasi’s lumbar spine.

PROCEDURE BEFORE THE COMMISSION

By an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (Commission) on 1 August 2022, Mr Mardasi claimed compensation for injury to his lower back and a secondary psychological condition. He claimed weekly benefits compensation from 14 June 2022 and medical expenses including the cost of the treatment proposed by
Dr Singh.
At a telephone conference on 29 August 2022, the parties agreed that Mr Mardasi had continued to be paid weekly compensation from 14 June 2022, and the respondent withdrew a dispute notice dated 20 April 2022 in relation to that part of his claim. Parties agreed that the claim in relation to psychological injury remained in dispute. They also agreed that the matter should be referred to a Medical Assessor for a non-binding opinion as to whether the treatment proposed by Dr Singh is reasonably necessary as a result of Mr Mardasi’s accepted lower back injury.
Medical Assessor, Dr Rob Kuru, saw Mr Mardasi on 14 October 2022 and provided a Medical Assessment Certificate (MAC) dated 3 November 2022. Dr Kuru concluded that the proposed treatment was not reasonably necessary as a result of the injury to Mr Mardasi’s lumbar spine.
Following receipt of the MAC, a further telephone conference was held on 1 December 2022 at which parties agreed that the only issue remaining in dispute is whether the proposed treatment is reasonably necessary as a result of Mr Mardasi’s accepted injury. Parties were unable to reach agreement and the matter was listed for a conciliation conference and arbitration hearing on 10 February 2022.
Ms Lyn Goodman of counsel appeared for Mr Mardasi at the conciliation conference and arbitration hearing, instructed by Ms Dorsa Dawson. Mr Graham Barter of counsel appeared for the respondent, instructed by Ms Emily Kheir.
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)    ARD and attached documents;
(b)    Reply and attach documents;
(c)    Application to Admit Late Documents (AALD) lodged by the respondent on
24 January 2023 and attached documents, and
(d)    MAC dated 3 November 2022.

Oral evidence

Neither party sought leave to adduce oral evidence or to cross-examine any witness.

Mr Mardasi’s statements

Mr Mardasi provided statements of evidence dated 18 November 2021 and 27 July 2022.[1] At the time of his first statement, he had been referred to Dr Singh but was yet to see him. His statement is largely concerned with his capacity for employment and it is not necessary to refer to it further.
[1] ARD pages 1, 3.
In his second statement, Mr Mardasi stated that he had seen Dr Singh who had advised that, as he had not responded to conservative treatment, he recommended L3/4 and L5/S1 endoscopic spine surgery. At that time, Dr Peter Khong, neurosurgeon, had provided a medico-legal opinion proposing different surgery. Mr Mardasi stated that he was aware that Dr Khong had suggested a different surgery but said he preferred the recommendation of his treating specialist who had explained the procedure to him in detail and had said there were “very good prospects of the operation being a success”.
As the current dispute is essentially one of medical opinion, it is not necessary to refer to
Mr Mardasi’s statement further.

Dr Giblin’s reports

Dr Giblin provided reports dated 21 April 2021, 9 June 2021, 9 August 2021 and
[2] ARD pages 108, 109, 110, 112.
25 August 2021[2].
In his first report, to Dr Darzikohali and the insurer, Dr Giblin said that, since the injury at work, Mr Mardasi had “left lower back pain with some radiation into the back of the left thigh and some pins and needles in both feet”. He said an MRI report of his lumbar spine:
“… suggests a moderate disc protrusion with canal stenosis at L3/4 and a left sided L5/S1 disc affecting, they say the S1 nerve root, but I was under the impression the foraminal disc affected the L5 nerve root. The other possibility of course is that he may have a congenital anomaly.”
Dr Giblin said he had asked Mr Mardasi to come back with his scans as he was unable to access them online, and he had organised a bone scan and a standing X-ray.
In his second report, to the insurer, Dr Giblin stated that Mr Mardasi had had “some reasonable relief following his last injection, but his symptoms have returned”. Although not stated in his report, it appears this injection was to Mr Mardasi’s spine at L5/S1. Dr Giblin said it was “possible that the L3/4 level may be adding to his symptoms, so I have suggested he have that injected and I will review him again three weeks after that”.
On 9 August 2021, Dr Giblin reported to Dr Darzikohali that he had seen Mr Mardasi that day and it seemed that “both injections have given him some relief for a period of time, but his symptoms have returned and recently deteriorated”. Dr Giblin said he had asked Mr Mardasi to have a repeat MRI to see if there had been any further deterioration of the discs.
On 25 October 2021, Dr Giblin reported to Dr Darzikolahi and the insurer that the MRI “really didn’t show a great deal of change”. He said it was “difficult to know whether the pain is coming from the L3/4 or the L5/S1 level” but he suspected the latter. He said he was “not convinced that surgery is a solution” and he asked Dr Darzokohali to organise a second opinion before Mr Mardasi went to a pain clinic.

Dr Singh’s reports

On 2 November 2021, Dr Singh reported to Dr Lim, relevantly, that an MRI revealed that
[3] ARD page 87.
Mr Mardasi had “disc bulging at L5-S1 with left S1 nerve root distribution and nerve root irritation [and] disc bulging with canal stenosis at L3-4”. [3]
Dr Singh noted that Mr Mardasi had been treated by Dr Giblin, and had MRI scans and injections of his lumbar spine at L5/S1 and L3/4. He noted both injections “gave him short-term relief during the anaesthetic phase”. Dr Singh said Mr Mardasi continued to have symptoms and was likely to require surgical management.
On 18 November 2021, Dr Singh provided an estimate of fees for the proposed surgical procedure in the amount of $9,288.[4]
[4] ARD page 86.
Dr Singh provided a further report, dated 23 June 2022, to Mr Mardasi’s solicitor in response to a report from Dr John Bentivoglio (see below).[5] Dr Singh stated, relevantly, that
Dr Bentivoglio had not provided a clear diagnosis and had “certainly not provided any treatment options which are viable”. Dr Singh said Mr Mardasi “needs decompression surgery”; whether by a traditional open approach or minimally invasive approach made no difference and was “not the issue”. He stated:
“[Mr Mardasi] has clear pathology at L3/4 an L5/S1. This is giving him discogenic pain in the back and neurogenic pain in the legs. He has not responded to conservative treatment. Surgical management is, therefore, reasonably necessary. His surgical option is to have decompression surgery or decompression and fusion surgery. I have offered decompression surgery. Ultimately, he will require fusion surgery at these two levels, however this would necessitate a three-level fusion from L3 to S1.”
[5] ARD page 59.
Dr Singh described the proposed treatment as “a valuable alternative”. He said the nature of Mr Mardasi’s pain had not changed since November 2021. He said surgery was appropriate, the aim being “to decompress the neurological element and provide improvement of leg pain and improved his neurogenic claudication”.
In response to a question as to why his proposal was reasonably necessary and how the need arose from the work injury or, alternatively, whether the L5/S1 decompression recommended by Dr Khong (see below) was appropriate, Dr Singh restated his comments about disc bulging at L5-S1 with left S1 nerve root distribution and nerve root irritation, and disc bulging with canal stenosis at L3-L4. He noted again “clear pathology at L3/4 and L5/S1 giving Mr Mardasi discogenic pain in the back and neurogenic pain in the legs”. He said Mr Mardasi had not responded to conservative treatment; surgical management was, therefore, reasonably necessary; surgical decompression of the nerve roots was appropriate and would be effective in improving his leg pain “and his back pain to a certain extent”.
As to the appropriateness of the proposed treatment, Dr Khong said:
“In the presence of disc bulging resulting in canal stenosis and radiculopathy, which has not responded to conservative treatment, surgical decompression of the nerve roots is appropriate. Decompression will be effective in improving his leg pain, and his back pain to a certain extent.”
With respect to alternative treatment and its potential effectiveness, Dr Singh said the surgical alternative was decompression and fusion surgery at those two levels but this would necessitate a multi-level fusion. The non-surgical alternative was for Mr Mardasi “to accept permanent functional impairment and trial chronic pain management”.
With respect to cost, Dr Singh said the surgeon and assistant fees would amount to around $9000; he could not comment upon hospital costs or anaesthetists’ fees but would likely be at the gazetted rates. He said surgical decompression is “the accepted and appropriate method of treatment” for this condition. He referred to injections by Dr Giblin at both levels and significant improvement “temporarily during the anaesthetic phase” at both levels. He concluded from this that decompression of L5-S1 would likely result in residual pain still from L3/L4.
Dr Singh’s supplementary report following the MAC is outlined below.

Dr Khong’s reports

Dr Khong provided a medico-legal report dated 20 October 2021[6] and a supplementary report dated 26 April 2022.[7]
[6] ARD page 96.
[7] ARD page 69.
In his first report, Dr Khong noted the L5/S1 injection on 19 May 2021 and the L3/4 injection on 23 June 2021. Mr Mardasi reported “some slight transient benefit from these injections” and that physiotherapy and painkilling medication had “not helped much”.
Mr Mardasi reported persistent midline and left sided low back pain radiating to the posterior left thigh, lateral left leg to the top of the foot to the toes. He had no right leg symptoms. Dr Khong said he reviewed the MRI done by Spectrum Imaging on 12 April 2021 electronically and noted it showed multilevel degenerative disc disease, central and “right sided disc herniation at L3/4 causing right sided lateral recess stenosis and compression of right L4 nerve root. Left-sided disc herniation L5/S1 with displacement of left S1 nerve root”.
Dr Khong diagnosed multilevel degenerative disc disease with some displacement of the left S1 nerve root and said Mr Mardasi’s back pain was “likely a combination of severe muscular ligamentous strain, exacerbation of pre-existing degenerative changes and an L3 transverse process fracture”. He said Mr Mardasi’s left leg pain may be related to left S1 compression.
As to treatment, Dr Khong said Mr Mardasi should restart physiotherapy and have hydrotherapy. He might benefit from another steroid injection. Mr Mardasi told him he was unsure whether an L5/S1 epidural previously help with his pain. Dr Khong said that, if a left S1 perineural injection helps with his leg pain, a left L5/S1 decompression “may also provide relief of his left leg pain”.
In his supplementary report, Dr Khong was asked to comment on the dispute notice. He reiterated the findings on the MRI of a “central and slightly right-sided disc herniation at L3/4 with some right L3/4 lateral recess stenosis”, and the left side of discontinuation with displacement of the left S1 nerve root. He said:
“I feel there is a good chance Mr Mardasi’s left leg pain is due to left S1 irritation in the left L5/S1 lateral recess.”
As to the proposed treatment, Dr Khong said:
“I am not convinced discectomy at L3/4 will help significantly. However I do feel a discectomy at L5/S1 has a good chance of helping Mr Mardasi’s left leg pain.”
Dr Khong diagnosed multilevel degenerative disc disease with some displacement of the left S1 nerve root and said Mr Mardasi’s back pain was “likely a combination of severe muscular ligamentous strain, exacerbation of pre-existing degenerative changes and an L3 transverse process fracture. His left pain may be related to left S1 compression”.
Dr Khong said Mr Mardasi had had persistent pain for over one and a half years and he had had physiotherapy. He said exercise and core strengthening alone “may not significantly benefit” him though it may be useful. He said surgery “would be more effective in helping with his left leg pain”. He did not agree with Dr Bentivoglio’s comment that there was a significant chance that the proposed procedure would worsen Mr Mardasi’s symptoms. He said:
“I would not say there is a significant chance of worsening of symptoms, leading to an incapacity for work. I am not sure the discectomy at L3/4 would be useful. I would support the left L5/S1 microdiscectomy.”
Dr Khong’s report in response to the MAC is outlined below.

Dr Bentivoglio’s report

Dr John Bentivoglio, orthopaedic surgeon saw Mr Mardasi for assessment on
17 February 2022 at the request of the respondent. He provided a report dated
[8] Reply page 64.
[9] Reply page 68.
28 February 2022[8] and a supplementary report dated 17 March 2022[9]. He took a history of the injury and subsequent treatment consistent with the other reports.
Dr Bentivoglio noted that Mr Mardasi saw Dr Giblin who advised “he would benefit by surgical treatment”. (That is not how I read Dr Giblin’s report but nothing really turns on this.) He said Mr Mardasi had some CT guided epidural cortisone injections “but it was no benefit”. He noted that the only active treatment Mr Mardasi was currently having was pain relieving medication. He noted he had not been capable of returning to the workforce since the injury. He noted that Mr Mardasi had not been seen by any rehabilitation providers.
Dr Bentivoglio reported that Mr Mardasi’s current symptoms were back pain, even at rest, with pain radiating down his left lower limb to his foot. Mr Mardasi said his back symptoms troubled him more than his lower limb symptoms. Dr Bentivoglio said he “complained of decreased sensation involving the whole of his left lower limb [which] did not conform to any dermatome pattern”.
Dr Bentivoglio said he viewed plain X-rays from April 2021 which showed “some minor degenerative changes” present in Mr Mardasi’s spine “consistent with his age and his previous occupations”. He noted the MRI from August 2021 showed moderate disc protrusion with some degree of canal stenosis at L3/4; at L5/S1 there was evidence of left foraminal protrusion with mild bilateral facet joint osteoarthritis; there was moderate narrowing of the left lateral recess affecting the descending left S1 nerve root but “overall there was no significant canal stenosis or foraminal narrowing”. He also noted a SPECT CT bone scan from May 2021.
Dr Bentivoglio described the investigations of Mr Mardasi’s lumbar spine as “relatively unremarkable”. He thought Mr Mardasi might have sustained a minor fracture of his left L3 transverse process in the incident in October 2020. He considered that there were “gross signs of exaggeration” and he believed any proposed surgery was “doomed to failure”. He did not consider the “minor abnormalities” (which he said were “probably not consistent with the history provided”) seen on the investigations would benefit sufficiently from surgical treatment to justify it being done. He said he did not believe the proposed surgery was an appropriate and accepted form of treatment for the injury; the “treatment of choice” was for Mr Mardasi to continue with an exercise-based program and try to build up his core muscle strength.
Dr Bentivoglio concluded that Mr Mardasi had possible disc damage which he suspected was only at the L3/4 level of his lumbar spine. He suspected that those abnormalities were probably pre-existing and represented some degree of degenerative disc bulging at that level. He said he could find “no abnormal objective physical findings on examination to verify any disability that occurred as a result of the specific injury”.
Dr Bentivoglio said Mr Mardasi was fit for most work activities required of him. He said
Mr Mardasi “does have permanent weakness at the L3/4 level of his lumbar spine as a result of the discal abnormality”. Mr Mardasi would always have some degree of restriction of employment because of “the permanent discal damage at the L3/4 level”.

In his supplementary report, Dr Bentivoglio referred again to “quite marked signs of exaggeration” and to the “relatively mild abnormality” at the L3/4 level. He referred again to the “permanent weakness at several levels of [Mr Mardasi’s] lumbar spine” and said any treatment would be as a result of pre-existing degenerative changes. He reiterated his opinion that Mr Mardasi should only be doing an exercise-based program to build up his core strength.

The MAC

Dr Kuru saw Mr Mardasi on 14 October 2022. He took a history of the injury and subsequent treatment consistent with other doctors.
Dr Kuru noted that Mr Mardasi was doing some simple stretches through a physiotherapist; he had not been reviewed by an exercise physiologist or had a more structured gym program; he was on pain medication. Mr Mardasi reported that some steroid injections into his back “were of no effect”. He described pain predominantly in his back and a “global pain extending into his left leg”.
Dr Kuru said Mr Mardasi was “obviously very uncomfortable” during the examination. He reviewed the X-ray on 21 April 2021 which was “unremarkable” and he noted the MRI showed L2 to S1 disc desiccation, right sided L34 degenerative disc protrusion and minor degenerative protrusion at L5. He noted CT scans in May 2021 and June 2021 showing degenerative L5 protrusion and right-sided L3/4 disc protrusion. He noted the findings on the MRI on 10 August 2021 including “minor degenerative protrusion at L5 without significant neural compression”.
Dr Kuru diagnosed an injury at work on 29 October 2020, since when Mr Mardasi had had “significant back pain with nondermatomal symptoms into his left leg”. He said “multiple modalities of imaging” had not demonstrated pathology consistent with symptoms radiating into his leg. He considered Mr Mardasi to be “impaired beyond that which would be expected from the changes seen on imaging”.
Dr Kuru said he did not believe the proposed treatment was reasonably necessary as a result of Mr Mardasi’s accepted injury. By way of explanation, he said:
“The imaging … demonstrates background degenerative change. Right-sided L3/4 disc protrusion may or may not be consistent with acute injury. The imaging does not demonstrate compressive pathology to account for symptoms radiating into Mr Mardasi’s left leg. This being the case, it is highly unlikely that surgical intervention in any form will be helpful for Mr Mardasi.”
With respect to “criteria for reasonable and necessary treatment”, Dr Kuru said surgical decompression for back pain and non-radicular back symptoms “in the absence of focal compressive pathology is unlikely to be helpful” and, in Mr Mardasi’s case, was not appropriate. He said Mr Mardasi was symptomatic from underlying degenerative disc disease at multiple levels, the treatment for which should be an exercised-based rehabilitation program.
As to cost, Dr Kuru said two-level endoscopic decompression would cost in the region of $25,000 and was of “limited value” as it was unlikely to improve Mr Mardasi’s condition.
As to acceptance by medical experts generally, Dr Kuru said:
“Decompressive surgery is commonly undertaken and known to be effective in the context of patients having symptoms into their limbs with imaging demonstrating compressive pathology which correlates with the distribution of symptoms in the limbs. Mr Mardasi’s imaging does not demonstrate compressive pathology which correlates with the distribution of symptoms into his limbs.”
Regarding the opinions of the other doctors, Dr Kuru said he agreed with Dr Bentivoglio that the proposed treatment would not help Mr Mardasi’s symptoms, and he should engage in an exercise-based program. He agreed with Dr Khong that treatment for the right-sided L3/4 disc protrusion was unlikely to be of clinical benefit. As to Dr Khong’s “belief that a decompressive procedure at L5/S1 may be helpful for the left-sided leg pain”, Dr Kuru said, “Personally I am not in agreement with this”.
With respect to Dr Singh’s report of 28 March 2022, Dr Kuru said he agreed that Mr Mardasi has pathology at the L3/4 and L5/S1 levels. As to Dr Singh’s opinion that this was giving him discogenic pain in the back and neurogenic pain in the legs, Dr Kuru said this is “a presumptive diagnosis”. He said, in the absence of significant compressive pathology, it was unlikely surgery would be of any benefit.
Dr Kuru referred to Dr Singh’s opinion that, ultimately, Mr Mardasi would require fusion surgery at these levels but this would necessitate a three level fusion, Dr Kuru said such treatment “is not consistent with evidence based practice and is highly unlikely to offer any benefit to Mr Mardasi”.

Dr Khong’s further report

Dr Khong was asked to comment on Dr Kuru’s MAC. In a report dated 7 November 2022[10], he said he had re-reviewed the MRI from 10 August 2021 and there remained “distortion and likely irritation of the left S1 nerve root in the left L5/S1 lateral recess that Dr Kuru does not mention”. He said this was present also on the MRI from 12 April 2021 and was stated in both reports. He said that at L3/4 there was disc herniation with severe right-sided lateral recess stenosis, but the left side looked “patent”.
[10] Applicant’s AALD page 2.
Dr Khong said he did not agree there was no compressive pathology on imaging that accounted for Mr Mardasi’s symptoms. He said on the left side there is “clear distortion of the left S1 nerve root” and there was a “good chance this was the cause of his left lower limb pain which radiate to his foot”. He noted that Mr Mardasi recalled some “transient benefit” from the L5/S1 epidural injection. Dr Khong said he could have another left S1 injection for diagnostic purposes but the likely outcome would again be transient improvement.
Dr Khong agreed that exercise-based rehabilitation may be useful but said it was unlikely to give Mr Mardasi long-term pain relief. He had had persistent lower back pain and leg pain for over two years and it was unlikely to respond to non-operative measures. Dr Khong agreed that decompression L3/4 was unlikely to be useful but he did not agree about decompression at L5/S1 which he said was “a minimally invasive procedure which has a moderate chance of helping Mr Mardasi’s left leg symptoms”. Without it, his leg pain was likely to persist over the long term.

Dr Singh’s further report

In a report dated 16 November 2022, Dr Singh said Dr Kuru accepted there was pathology at L3/4 and L5/S1. He said Dr Kuru was aware that the previous treating surgeon had arranged injections which gave Mr Mardasi temporary relief during the anaesthetic phase but the pain had returned.
Dr Singh said treatment options for Mr Mardasi’s symptoms of back and leg pain from disc bulging at these levels were physiotherapy, injections and surgery. Mr Mardasi had tried nonoperative measures but they had not given him sustained relief and surgery was, therefore, reasonably necessary.
As to the cost, Dr Khong said Dr Kuru believed the cost would be $25,000 which, Dr Khong said, was “fallacious”. He referred to the quote submitted to the insurer that the cost of surgery would be around $9,000.
Dr Khong said the delay in treatment was detrimental to Mr Mardasi’s physical and mental well-being. The alternative to surgical treatment was to accept “permanent functional deficit and trial chronic pain management”. He said this was not recommended in a 53-year old man who wishes to return to the workforce.

SUBMISSIONS

Parties made oral submissions and the transcript is available. The following summarise the main points.

The applicant’s submissions

Ms Goodman submits that, in his report dated 2 November 2021, Dr Singh, the treating surgeon, observed that the MRI scan from Healthcare Imaging revealed problems at two levels of Mr Mardasi’s spine: disc bulging at L5/S1 with left S1 nerve root distribution and nerve root irritation, and disc bulging with canal stenosis at L3/4. Ms Goodman submits that Dr Singh referred to Dr Giblin’s report following a repeat MRI and noted that Dr Giblin had organised injections at the L5/S1 level as well as L3/4. Dr Singh noted that Dr Giblin had said the injections gave Mr Mardasi “short-term relief during the anaesthetic phase”.
Ms Goodman refers to Dr Singh’s report of 23 June 2022 in which he stated that he did not agree with Dr Bentivoglio that Mr Mardasi’s workplace injury had “dissolved” [sic: this probably should read “resolved”]. Dr Singh noted that Mr Mardasi had “clear pathology at L3/4 and L5/S1” giving him discogenic pain in the back and neurogenic pain in the legs.
Dr Singh concluded that the proposed surgery was reasonably necessary “to decompress the neurological elements and provide improvement of leg pain and improve his neurogenic claudication”.
Ms Goodman submits that Dr Singh’s report of 23 June 2022 in effect deals with the criteria in Diab v NRMA[11]. He considers the pathology in Mr Mardasi’s lumbar spine, the appropriateness and effectiveness of the proposed treatment which he says will “be effective in improving his leg pain, and his back pain to a certain extent”. He considered the availability of alternatives which he said would be multilevel fusion (which he did not propose) and the non-surgical alternative of accepting “permanent functional impairment” and a trial of chronic pain management.
[11] Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab).
Ms Goodman refers to Dr Singh’s observation that the delay in treatment is affecting
Mr Mardasi’s physical and psychological well-being and that chronic pain management is not indicated for someone of his age who wishes to return to the workforce.
Ms Goodman refers to Dr Singh’s report of 16 November 2022 in which he disagrees with
Dr Kuru, who he says accepted pathology at both levels.
Ms Goodman refers to Dr Bentivoglio’s statement that the cortisone injections arranged by
Dr Giblin were “of no benefit” and submits this is not what occurred; Mr Mardasi told doctors he has some short-term, or transient, relief but the pain returned. Dr Bentivoglio considered that Mr Mardasi was “grossly exaggerating” what Dr Bentivoglio considered to be minor abnormalities. Ms Goodman submits there is clear evidence that Mr Mardasi was suffering from severe pain and it was not “minor” to him, and Dr Bentivoglio noted the findings on the MRI in relation to L3/4 and L5/S1.
Ms Goodman refers to the observations of Burke CCJ in Rose v Health Commission (NSW),[12] echoed in Diab, that, if proposed treatment will give some relief and the applicant wants to have it, he or she should have it.
[12] Rose v Health Commission (NSW) [1986] NSWCC2; (1986) 2 NSWCCR 32 (4 July 1986) (Rose).
With respect to Dr Kuru, Ms Goodman submits that he does not appear to deal with the bulge at L5/S1 and nerve root irritation shown on the MRI. He refers to the L3/4 and states that imaging does not show compressive pathology. Ms Goodman submits that all of the doctors noted pathology and symptoms in Mr Mardasi’s left leg, and Dr Kuru is wrong.
Ms Goodman submits that I would give little weight to the MAC; Dr Kuru has not taken into account the irritation at L5/S1 which is causing problems in Mr Mardasi’s left leg. He states that he agrees with Dr Khong in relation to the L3/S4 and disagrees with him about L5/S1 but he gives no reasons. Ms Goodman submits that Dr Kuru is inconsistent because he also says he agrees with Dr Singh that there is clear pathology at both levels. He refers to
Dr Singh’s view that this is causing discogenic pain and says this is a “presumptive diagnosis” but he gives no reasons. Dr Kuru has given no reasons, or insufficient reasons, as to why treatment at L5/1S would not benefit Mr Mardasi.
Ms Goodman submits that I would give greater weight to Dr Khong and Dr Singh. She acknowledges that only Dr Singh thinks that treatment at L3/4 will benefit Mr Mardasi but submits there is clear evidence of likely benefit from treatment at L5/S1.

The respondent’s submissions

Mr Barter submits that the evidence does not support a finding that proposed surgery at L3/4 is reasonably necessary. Mr Barter submits that the high point of the applicant’s case is the pathology at L5/S1. Mr Barter submits that the applicant relies on the MRI but not on the findings on examination.
Mr Barter submits that the evidence suggests that Mr Mardasi will likely come to surgery ultimately and, in those circumstances, the proposed treatment is not reasonably necessary.
Mr Barter submits that Dr Khong offers only “mild” support for the procedure at L5/S1, and he only gives it a moderate chance of success. He does not support decompression and L3/4 and says in his most recent report that it is unlikely to be successful.
With respect to the principles in Diab, Mr Barker submits that acceptance by experts that a proposed procedure is likely to be effective, is important.
Mr Barter refers on the observation of Burke CCJ in Bartolo v Western Sydney Area Health Service[13] that it is not simply a question of asking whether it is better or not for a worker to have proposed treatment, the question is whether it is reasonably necessary. Mr Barter submits that the only helpful evidence in this regard is from the doctors.
[13] Bartolo v Western Sydney Area Health Service [1997] NSWCCR 233 (Bartolo).
Mr Barter submits that I should give considerable weight to the MAC, especially if it is consistent with the evidence. Mr Barter submits that Dr Kuru’s assessment is consistent with that of Dr Bentivoglio. Mr Barter submits that it is not correct to say that Dr Kuru did not take account of the MRI; he refers to it, and he accepts there is pathology at both levels. Mr Barter submits that Dr Kuru considered the pathology at L5/1 and did not consider there was significant compressive pathology. Dr Singh does not agree but, in Mr Barter’s submission, Dr Singh wants to do the surgery. Moreover, in his supplementary report regarding the MAC, he still considers that fusion may be required in the future. In Mr Barter’s submission, this supports the conclusion that the proposed treatment will not assist Mr Mardasi in the long-term.
Mr Barter submits that it cannot be concluded from the fact that Mr Mardasi had some slight transient relief from the injections that surgical intervention is justified. Mr Barter submits that it is common ground that Mr Mardasi has psychological symptoms. Dr Bentivoglio and
Dr Kuru agreed he was exaggerating and the question is raised why he has not gone ahead with the treatment in the public system if it is so needed.
Mr Barter submits that treatment has to be reasonably necessary as a result of a workplace injury. He submits that there is a lot of evidence in this case that Mr Mardasi’s symptoms relate to his degenerative condition. Dr Giblin noted the degenerative condition in his spine and could not work out the pathology underlying his complaints.
Mr Barter submits that Dr Singh’s opinion is of doubtful reliability. Dr Singh wishes to proceed with treatment at L3/4 in the face of the evidence against him, and treatment at L5/S1 in the face of very doubtful support from Dr Khong. In all the circumstances, Mr Barter submits that the proposed treatment is not reasonably necessary.

Submissions in reply

In reply, Ms Goodman submits that the fact that Mr Mardasi may ultimately come to spinal fusion is not a reason against treatment. She submits that no claim is made in relation to fusion and no argument is made that the treatment will forestall future surgery. Ms Goodman submits that the proposed treatment may defer the need for fusion to a much later date. Moreover, Dr Singh says that it will allow Mr Mardasi to return to work.
Ms Goodman submits that Dr Giblin was in the best position to assess the effect of the injections and he said both gave some relief before the pain returned.
With respect to Dr Kuru, Ms Goodman submits that he does not specifically deal with the L5/S1 pathology. He had the MRI report but it is not enough for him to refer to it: he had to explain why he did not agree with the treatment.
Ms Goodman disagrees that Dr Khong gives only lukewarm support for treatment at L5/S1. She submits that Dr Khong thinks pathology at that level is likely causing Mr Mardasi’s left leg symptoms and decompression is reasonable treatment.

FINDINGS AND REASONS

Section 60(1) of the 1987 Act provides:
“If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
There is no dispute that Mr Mardasi sustained injury to his lumbar spine on 29 October 2020. The issue for determination is whether the proposed treatment is reasonably necessary as a result of that injury.
Mr Mardasi bears the onus of proof. The standard is on the balance of probabilities, meaning
[14] [2008] NSWWCCPD 134.
[15] [2008] NSWCA 246.
I must feel an actual persuasion of the matters necessary to establish his claim: Department of Education and Training v Ireland,[14] and Nguyen v Cosmopolitan Homes.[15]
What is reasonably necessary treatment was considered by Burke CCJ in the context of former legislation in Rose where he said:
“3.     Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.      In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
The principles in Rose were summarised by Deputy President Roche in Diab (at [88]-[89]) as follows:
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose …,namely:
(a)the appropriateness of the particular treatment;
(b)the availability of alternative treatment, and its potential effectiveness;
(c)the cost of the treatment;
(d)the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.”
Deputy President Roche 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.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”

Dr Singh noted that Mr Mardasi has “clear pathology” at both levels. He recommended the endoscopic discectomy at both levels, but he does not indicate their success was interdependent.
Dr Giblin stated in his first report that Mr Mardasi had “some reasonable relief following his last injection” but his symptoms had returned. It appears Dr Giblin was referring to an injection at L5/S1 because he went on to say it was “possible that the L3/4 level” might be adding to Mr Mardasi’s symptoms and he had suggested he have that injected as well.
Dr Khong reported that he was not convinced discectomy at L3/4 would help significantly but he felt discectomy at L5/S1 had “a good chance of helping Mr Mardasi’s left leg pain”.
I do not understand Dr Singh or any other doctor to say that the treatment proposed at both levels is interdependent, that is, that both need to be carried out in order for each to be effective.
I will deal first with the treatment proposed at L3/4 and then the treatment proposed at L5/S1, although the evidence tends to overlap.,
Ms Goodman acknowledged in submissions that only Dr Singh supports treatment at L3/4.
Dr Giblin, the first specialist who saw Mr Mardasi, was unable to reach any firm conclusion about what was causing his back and leg pain. In his first report, he said the MRI suggested a moderate disc protrusion with canal stenosis at L3/4 and a left sided L5/S1 disc affecting, according to the report, the S1 nerve root, but his impression was that the foraminal disc affected the L5 nerve root.
In his second report, Dr Giblin thought it “possible” the L3/4 level could be adding to
Mr Mardasi’s symptoms. In his third report, he said it was “difficult to know” whether the pain was coming from the L3/4 or the L5/S1 level, but he “suspected the latter”.
At this point, Dr Giblin suggested Mr Mardasi obtain a second opinion. Although he noted pathology at L3/4, he does not indicate support for treatment at that level.
Dr Singh noted that Mr Mardasi had “clear pathology” at L3/4 and L5/S1. As to why the proposed treatment was reasonably necessary, he did not clearly differentiate between the two levels. He said the pathology was giving Mr Mardasi discogenic pain in the back and neurogenic pain in the legs. As he had not responded to conservative treatment and surgical management, Dr Singh considered that treatment was reasonably necessary. He described it as “a valuable alternative”, its aim being “to decompress the neurological element and provide improvement of leg pain and improved his neurogenic claudication”.
In response Dr Khong’s opinion that decompression at L5/S1 was appropriate, Dr Singh restated his comments about disc bulging at L5-S1 with left S1 nerve root distribution and nerve root irritation, and disc bulging with canal stenosis at L3/4. He noted again “clear pathology at L3/4 and L5/S1 giving Mr Mardasi discogenic pain in the back and neurogenic pain in the legs”. Essentially, he restated his opinion.
Dr Singh said surgical decompression is “the accepted and appropriate method of treatment” for Mr Mardasi’s condition. He referred to the injections under Dr Giblin at both levels and significant improvement “temporarily during the anaesthetic phase” at both levels. He concluded from this that decompression of L5-S1 would likely result in residual pain still from L3/4.
In his response to Dr Kuru’s report, Dr Singh maintained that Mr Mardasi would benefit from decompression at L3/4 and L5/S1. He said the delay was detrimental to Mr Mardasi’s physical and mental well-being and the alternative was to accept permanent functional deficit and trial chronic pain management.
Dr Khong did not support treatment at L3/4. He noted pathology at both levels. He thought Mr Mardasi’s back pain was “likely a combination of severe muscular ligamentous strain, exacerbation of pre-existing degenerative changes and an L3 transverse process fracture”. He thought Mr Mardasi’s left pain may be related to left S1 compression.
Dr Khong said that, if a left S1 perineural injection helps with his leg pain, a left L5/S1 decompression “may also provide relief of his left leg pain”.
In his supplementary report, Dr Khong reiterated the findings on the MRI and said he felt there was “a good chance” Mr Mardasi’s left leg pain was due to left S1 irritation in the left L5/S1 lateral recess. He said he was not convinced discectomy at L3/4 would help significantly but he did think a discectomy at L5/S1 had “a good chance” of helping
Mr Mardasi’s left leg pain. With respect to L3/4, he said he was not sure it would be useful but he would support the left L5/S1 microdiscectomy.
Dr Bentivoglio said Mr Mardasi complained of decreased sensation involving the whole of his left lower limb which did not conform to any dermatome pattern. He described the investigations of Mr Mardasi’s lumbar spine as “relatively unremarkable”. He did not support proposed treatment at either level. He did not consider it an appropriate and accepted form of treatment for the injury and said the “treatment of choice” was for Mr Mardasi to continue with an exercise-based program and try to build up his core muscle strength.
Dr Bentivoglio concluded that Mr Mardasi had possible disc damage which he suspected was only at the L3/4 level. He suspected that those abnormalities were probably pre-existing and represented some degree of degenerative change. He said Mr Mardasi did have “permanent weakness at the L3/4 level” and would always have some restriction of employment because of the permanent damage at this level.
In his supplementary report, Dr Bentivoglio referred again to “quite marked signs of exaggeration” and to the “relatively mild abnormality” at the L3/4 level. He referred again to the “permanent weakness at several levels of [Mr Mardasi’s] lumbar spine” and said any treatment would be as a result of pre-existing degenerative changes. He maintained his opinion that appropriate treatment was an exercise base program to build up core strength.
Dr Kuru considered that it was “highly unlikely” that surgery in any form would be helpful for Mr Mardasi because, he said, the imaging did not demonstrate compressive pathology to account for symptoms radiating into Mr Mardasi’s left leg. He said surgical decompression for back pain and non-radicular back symptoms “in the absence of focal compressive pathology was unlikely to be helpful and was not appropriate.
Dr Kuru agreed with Dr Bentivoglio that Mr Mardasi should undertake an exercise-based, rehabilitation program for the symptoms from his underlying degenerative disc disease at multiple levels. He agreed with Dr Khong that surgery at L3/4 was unlikely to be a benefit.
For varying reasons, none of the doctors support Dr Singh’s proposal for treatment at L3/4 level of Mr Mardasi’s lumbar spine.
I consider that the weight of the evidence is against a finding that the treatment proposed at L3/4 is reasonably necessary as a result of Mr Mardasi’s accepted injury.
Turning to the proposed treatment at L5/S1 level, I am satisfied, on the balance of probabilities, that it is reasonably necessary as a result of Mr Mardasi’s workplace injury.
Dr Giblin’s initial impression, from seeing the MRI, was that the L5/S1 foraminal disc was affecting the L5 nerve root. On seeing the second MRI, he said it was difficult to know which level the pain was coming from but he suspected the latter. He was not convinced that surgery was an appropriate solution. He did not explain his opinion further, presumably because it was tentative and he was unsure where the pain was coming from. Nevertheless, he suspected the pathology at L5/S1 was causing the left lower back pain and radiation into his left leg.
Dr Singh noted the MRI report that Mr Mardasi had “disc bulging at L5-S1 with left S1 nerve root distribution and nerve root irritation (and bulging at L3/4)”. He noted that both injections gave him only “short-term relief during the anaesthetic phase”.
There was discussion at the hearing about what to make of the temporary relief that the injections gave Mr Mardasi. Ms Goodman submitted that I could take notice of the fact that the temporary relief indicated problems at those levels. None of the doctors commented directly on this.
Mr Barter referred to Dr Singh’s comment that, ultimately, Mr Mardasi will require fusion surgery. Mr Barter submitted that there is no point to the proposed treatment if fusion is inevitable in any event. Ms Goodman submitted that the purpose of the proposed treatment is to defer that possibility. I accept that submission. Dr Khong agreed that a fusion may be required in the future but he nevertheless supported the proposed treatment at L5/S1. Neither Dr Singh nor Dr Khong considered possible fusion in the future as a reason against the proposed treatment, and none of the other doctors suggested it was.
Dr Khong agrees with Dr Singh that treatment at L5/S1 will likely relieve Mr Mardasi’s leg pain. I do not agree that he gave it only “lukewarm” support is Mr Barter submitted. It is true that, in his first report, Dr Khong said a left L5/S1 decompression “may also provide relief of his left leg pain” but, in his supplementary report, he stated there was a “good chance” Mr Mardasi’s left leg pain was due to left S1 irritation in the left L5/S1 lateral recess, and a discectomy at L5/S1 had “a good chance” of helping his left leg pain.
I agree with Ms Goodman’s submission that Dr Kuru has not adequately explained why he disagrees with Dr Khong that a decompressive procedure at L5/S1 may help with Mr Mardasi’s his left side leg pain . Dr Kuru agreed that Mr Mardasi has pathology at both levels. He has not explained why he considers Dr Singh’s opinion (with which Dr Singh agrees) that this was giving him discogenic pain in the back and neurogenic pain in the legs “a presumptive diagnosis”.
Dr Bentivoglio took a history which he did not appear to question, that Mr Mardasi did not have problems in his back and leg before the injury. He considered that Mr Mardasi was “grossly exaggerating” his symptoms. He appears to be alone in this assessment. Dr Kuru considered that “multiple modalities of imaging had not demonstrated pathology consistent with symptoms radiating into his leg” and he considered the scans generally “unremarkable”. However, he also noted that, on examination, Mr Mardasi was “obviously very uncomfortable”. None of the other doctors suggested that he was exaggerating.
Dr Bentovoglio and Dr Kuru considered that the appropriate treatment for Mr Mardasi was an exercise-based program. Dr Khong agreed that exercise-based rehabilitation may be useful but said it was unlikely to give Mr Mardasi long-term pain relief. He had had persistent lower back pain and leg pain for over two years and it was unlikely to respond to non-operative measures and his leg pain was likely to persist over the long term.
Dr Singh does not consider there is any viable alternative for long-term relief. He said treatment options for Mr Mardasi’s symptoms of back and leg pain were physiotherapy, injections and surgery. Mr Mardasi had tried non-operative measures but they had not given him sustained relief and surgery was, therefore, reasonably necessary.
Dr Kuru said he did not support the proposed treatment “in the absence of evidence of compression”. Against that, Dr Khong reviewed the MRI done by Spectrum Imaging on
12 April 2021 electronically and noted its findings included compression of right L4 nerve root and left-sided discontinuation L5/S1 with displacement of left S1 nerve root. He disagreed with Dr Kuru who did not mention distortion and likely irritation of the nerve root at S1, seen on both MRIs. Dr Khong’s view was that there was clear evidence of compressive pathology. Dr Singh agrees.
Only Dr Bentivoglio thought there was a “significant chance” that the proposed procedure would worsen Mr Mardasi’s symptoms and lead to incapacity for work. The basis for his statement is not clear. Only Dr Khong responded specifically to his comment, and he disagreed.
Dr Kuru considered that the cost of the proposed treatment, which he understood to be around $25,000, could not be justified given the likely outcome. It is not clear where that figure came from because Dr Singh’s quote was for approximately $9,000. It may be that the figure quoted by Dr Kuru reflects all costs associated with the treatment, and Dr Singh has quoted only for his fee. None of the other doctors have commented on the likely cost as a factor weighing against the proposed treatment.
There seems no dispute that Mr Mardasi has degenerative changes in his lumbar spine.
Mr Barter submitted that I would not accept that the proposed treatment is reasonably necessary as a result of the workplace injury but rather, insofar as it is necessary, because of the degenerative changes. The doctors were aware of the workplace injury. Dr Kuru and
Dr Bentivoglio did not support the proposed treatment, and noted the degenerative changes but they opposed the treatment altogether. I do not understand them to say that their reason was that it would be required because of the degenerative changes.
Whether the need for reasonably necessary treatment arises from an injury is a question of causation and must be determined based on the facts in each case and a common-sense evaluation of the causal chain as discussed in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452[16].
[16] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
Dr Bentivoglio and Dr Kuru attribute Mr Mardasi’s symptoms to his pre-existing degenerative disease. However, there is no evidence to suggest that he had symptoms of back or leg pain prior to his workplace injury.
The need for surgery can arise from multiple causes. The work injury does not have to be the only, or even a substantial, cause of the need for the proposed treatment in order for the cost of that treatment to be recoverable. An injured worker must establish that the proposed treatment is reasonably necessary “as a result of” the injury, that is that the injury materially contributed to the need for the treatment: Murphy v Allity Management Services Pty Ltd[17]. In the absence of any evidence of back and leg pain prior to the workplace injury, and evidence of continuing symptoms since, I am satisfied that, insofar as treatment is reasonably necessary, it is as a result of Mr Mardasi’s workplace injury.
[17] Murphy v Allity Management Services Pty Ltd [20915] NSWWCCPD 49
I accept that the medical opinions weigh fairly evenly in the balance. However, considering the principles in Diab, I find that the proposed treatment at L5/S1 is appropriate to relieve Mr Mardasi’s leg pain, that alternative treatments have not proven effective so far, and that the alternative of an exercise-based program is unlikely to provide him with long-term relief. While the experts disagree about its appropriateness, I prefer the opinions of Dr Singh and Dr Khong to those of Dr Bentivoglio and Dr Kuru.
I am satisfied that Mr Mardasi has discharged his onus to establish, on the balance of probabilities, that the proposed left side L5/S1 endoscopic treatment proposed by Dr Singh is reasonably necessary as a result of his workplace injury.

[2023] NSWPIC 94

9 March 2023