Mcelhinney v Patrick Stevedores Holdings Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mcelhinney v Patrick Stevedores Holdings Pty Ltd [2024] NSWPIC 237
APPLICANT:	Tayla Mcelhinney
RESPONDENT:	Patrick Stevedores Holdings Pty Limited
MEMBER:	Gaius Whiffin
DATE OF DECISION:	8 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for injuries to back; claim for proposed future treatment expenses pursuant to section 60 being a L4/5 total disc replacement and L5/S1 anterior lumbar interbody fusion; consideration of applicant’s statements, medical reports and other treatment records, investigative and surveillance reports, and claim correspondence; respondent concedes injury on 11 April 2021; consideration of whether the proposed surgery is reasonably necessary medical treatment for the applicant as a result of the accepted injury; Paric v John Holland (Constructions) Pty Limited, Paric v John Holland (Constructions) Pty Limited, Rose v Health Commission (NSW, Diab v NRMA Limited, and Murphy v Allity Management Services Pty Limited considered; Held – the surgery proposed for the applicant by Dr Parkinson (a L4/5 total disc replacement and L5/S1 anterior lumbar interbody fusion) as referred to in his 18 October 2023 request, is reasonably necessary medical treatment as a result of the accepted injury to the applicant on 11 April 2021; the respondent is to pay for the costs of and incidental to the surgery pursuant to section 60.
DETERMINATIONS MADE:	The Commission determines: 1. The surgery proposed for the applicant by Dr Parkinson (a L4/5 total disc replacement and L5/S1 anterior lumbar interbody fusion) as referred to in his 18 October 2023 request, is reasonably necessary medical treatment as a result of the accepted injury to the applicant on 11 April 2021. The Commission orders: 2. The Application to Resolve a Dispute is amended so that the date of the applicant’s injury is pleaded as 11 April 2021. 3. The respondent is to pay for the costs of and incidental to the surgery (a L4/5 total disc replacement and L5/S1 anterior lumbar interbody fusion) proposed for the applicant by Dr Parkinson according to his 18 October 2023 request, pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Tayla Mcelhinney (the applicant) is 29-years-old. She is employed by Patrick Stevedores Holdings Pty Limited (the respondent), and has been since 12 August 2019. She sustained an injury to her lower back while performing lashing duties on 11 April 2021 in the course of her employment with the respondent, when she picked up a metal bar.
The respondent has accepted liability to pay compensation in relation to the back injury. It has made various workers compensation payments to the applicant over the years in this regard.
The applicant’s treating neurosurgeon, Dr Parkinson, has recommended to her that she undergo surgery, a L4/5 total disc replacement and L5/S1 anterior lumbar interbody fusion (the proposed surgery), to treat the back injury. The doctor sought that the respondent approve the costs involved in this surgery by a request dated 18 October 2023.
However, the respondent issued a notice denying liability for the costs involved in the proposed surgery, pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), dated 6 November 2023. It then reviewed the decision made by this notice in accordance with s 287A of the 1998 Act, but maintained its denial of liability in a further dispute notice dated 7 December 2023.
By way of an Application to Resolve a Dispute (ARD) filed with the Personal Injury Commission (the Commission), the applicant requests an order that the respondent pay for the costs of and incidental to the proposed surgery in accordance with s 60 of the Workers Compensation Act 1987 (the 1987 Act).

ISSUE FOR DETERMINATION

The parties agree that the following issue is in dispute:
(a) is the proposed surgery (and its ancillary costs) reasonably necessary treatment for the applicant as a result of her accepted injury on 11 April 2021.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
A conciliation conference was held in the dispute on 22 April 2024. On that occasion, Mr Brendan Jones of counsel appeared for the applicant, instructed by Ms Joseph; and Ms Sarah Warren of counsel appeared for the respondent, instructed by Mr Slocombe and Ms Atalay. The applicant was present (and was supported by her mother, Lisa Mcelhinney), as was a representative from the respondent’s insurer, Mr Leonard.
As a resolution of the dispute was not possible during the conciliation conference, the dispute proceeded to an arbitration hearing before me.
The ARD was amended with the consent of the respondent, so that the date of the applicant’s injury was pleaded as 11 April 2021.
The respondent advised that it did not intend to seek leave to cross-examine the applicant at the arbitration hearing.
The respondent further advised that despite my direction on 21 February 2024, it was unable to provide me with the surveillance film footage relevant to a surveillance report from Procare dated 18 October 2023, which it relied upon in the dispute in accordance with the respondent’s Reply (Reply). That surveillance footage film footage was therefore not in evidence before me.

EVIDENCE

Documentary evidence

The following documents were in evidence before me (no objection being taken by any party to all of the documents being in evidence), and considered in making this determination:
(a)    the ARD and attached documents;
(b)    the Reply and attached documents;
(c)    the respondent's Application to Admit Late Documents dated 15 April 2024 (respondent's AALD) and attached documents, and
(d)    the applicant’s Application to Admit Late Documents dated 17 April 2024 (applicant’s AALD) and attached documents.

Oral evidence

There was no oral evidence called at the arbitration hearing.

Applicant’s evidence

The applicant has provided two statements both dated 10 January 2024. The first statement is found at page 3 of the ARD.
The applicant says that on 11 April 2021, as she bent down after picking up a metal bar weighing approximately 20kg, she “immediately felt sharp sciatic pain down my left side”.
She consulted with her general practitioner (who was then Dr Lewis) on 12 April 2021, and he arranged for her to undergo a CT scan of her lumbar spine on 13 April 2021. She began to manage her back pain conservatively with stretching and medication, but says that she has had “constant lower back pain which radiates down my left leg to my knee and down to my foot” since.
She outlines her treatment, including:
(a)    another CT scan of her lumbar spine on 26 July 2022;
(b)    a further CT scan of her lumbar spine on 2 March 2023;
(c)    consulting with an orthopaedic specialist, Dr Stanford, on 4 April 2023;
(d)    a MRI scan of her lumbar spine (requested by Dr Stanford) on 18 April 2023;
(e)    physiotherapy at Beachside Physiotherapy and Psychology (Beachside) from May 2023 – she combined the physiotherapy with Pilates and massage treatment;
(f)    another appointment with Dr Stanford on 12 May 2023 – when the doctor recommended that she undergo surgery – she says however that at that stage, she did not wish to undergo surgery but wished to proceed with a more conservative approach to her treatment;
(g)    being referred to a neurosurgeon, Dr Parkinson, whom she first consulted on 15 June 2023;
(h)    being referred to a pain specialist, Dr Shetty, whom she first consulted on 1 August 2023 – he ordered a bone scan (undertaken on 16 August 2023), prescribed medication, and organised Botox injections (undertaken on 15 September 2023), and
(i)    consulting again with Dr Parkinson on 18 October 2023 – who then recommended the proposed surgery.
In relation to the ongoing effects of her 11 April 2021 injury, she says:
“It has been 2 years since my injury, I continue to experience pain, now on a daily basis, and I feel like my life is governed by pain medication…I have tried to avoid surgery being a last resort. I regularly attended and engaged in physiotherapy and pain management in an attempt to treat my injuries conservatively. However, this was not successful…My life has changed substantially since this incident as the onset of debilitating pain was immediate and this has restricted my every day and working life.”
She says that medication has not offered her any significant relief, and she rates her pain levels at 8 or 9 out of 10. She experiences intense pain while cleaning her apartment, and she now “cannot bare to exercise or go on long walks like I used to do daily”. She explains that she was previously extremely active, weight training daily, and engaging in 10km outdoor walks.
She experiences daily back spasms, especially when driving, but also when in bed for too long or turning her body to look at something. She is in pain when sitting or standing for extended periods. She experiences “a pinching and crushing feeling right at the bottom of my spine which never leaves”. She has difficulties sleeping, which leads to her being fatigued most days.
She says that she completed a massage diploma, but has “had to give this up” (including deleting an Instagram page promoting her as a massage therapist) as “I could not get through a whole massage without feeling intense pain”.
She has developed anxiety and depressive symptoms and is concerned that her mental health will deteriorate further. She says that she is “devastated by the turn my life has taken since the injury”.
She says that she has tried extremely hard to manage the treatment of her injury conservatively, but now “desperately” wants to proceed with the proposed surgery “so my life can return to normal, and I can get back to my job, which I love”. She also says:
“All I am asking for is to proceed with the surgery so I can get my life back and escape this daily barrage of pain and discomfort.”
The applicant’s second 10 January 2024 statement is found at page 10 of the ARD. In this statement, she addresses investigation reports which have been obtained by the respondent from Procare (and are found at pages 35, 65, and 89 of the ARD). She explains:
(a)    as part of the massage course which she completed in order to obtain her massage diploma (see paragraph 22 above), she was required to create a massage business, and work some hours in that business – she used social media to advertise the business, and was paid for massaging four individuals in March 2023 – she had to however cease all massaging due to the pain from her back injury, and the business is “now-closed”;
(b)    the surveillance report from Procare dated 18 October 2023 does not take into account that when she was walking, she had taken “strong painkillers”, she was wearing a back brace, and she had been encouraged by her doctors “to go for walks outside to improve my mental health and reduce muscle strain”;
(c)    on 11 October 2023, her walking was slow, she had to sit down because she was in pain, and while sitting down “I tried changing positions like crossing my legs to help alleviate my discomfort”, and
(d)    on 13 October 2023, when she returned home, she was tired, was in pain, took painkillers, and laid in bed for the rest of the day.
Dr Parkinson’s request for the respondent’s insurer to approve the proposed surgery (which is dated 18 October 2023) is found at page 15 of the ARD. The doctor’s fees in this regard were estimated to be likely to be $12,743.75.
Dr Parkinson also answered a questionnaire sent to him by the respondent’s insurer on 19 October 2023 (found at page 99 of the ARD). In answering the questionnaire, the doctor advises:
(a)    the applicant’s diagnosis is “discogenic back pain due to chronic disc injury at L5/S1” for which she requires a surgical solution in the form of the proposed surgery;
(b)    the applicant is currently unable to return to her pre-injury duties, but would be fit for 12 hours per week light duties/administration work, with no capacity for lifting, carrying, pushing and pulling, and with limited (up to 30 minutes) capacity for sitting, walking, standing, and travelling;
(c)    the applicant might be fit to return to her pre-injury duties three to six months after the proposed surgery, depending upon progress, and
(d)    “Tayla endures chronic discogenic pain and has done for some time. Her injury is life limiting as she is unable to enjoy physical activity, unable to work in a job she enjoyed and this causes frustration and depression. Surgical repair essential for this young woman”.
Dr Parkinson further has provided a report to the applicant’s solicitors dated 7 November 2023 (found at page 124 of the ARD). The doctor refers to the applicant’s work-related back injury and her history of continuing low back pain since the injury. She has discogenic lower back pain and her MRI scan shows nuclear dehydration and disc disease of the L4/5 and L5/S1 discs. The doctor opines:
“Tayla has trialed conservative management with physiotherapy, anti-inflammatories, analgesics, and a cortisone injection with limited improvement. She has also trialed specialist pain management with Dr Shetty which also didn’t help a great deal. For this reason, I have recommended a hybrid procedure, with a L4/5 disc arthroplasty and L5/S1 anterior lumbar interbody fusion…Given the failure of conservative management, it is my opinion that surgery is reasonably necessary.”
The respondent’s AALD includes a report from Dr Parkinson dated 15 June 2023 to the applicant’s current general practitioner, Dr Ibrahim (at page 20). That report also records the applicant’s continuing low back pain which “came on following a lifting injury at work”, as well as the limited improvement in her pain levels with physiotherapy, medication, and a cortisone injection. She is unable to lift, she rates her pain as around “6-7/10”, she is unable to go to the gym or do her usual fitness activities, and she is quite depressed. Her MRI scan shows “L5/S1 nuclear dehydration and disc height loss and Modic endplate change in the inferior L5 vertebral body without evidence of instability or nerve compression. There is a posterolateral disc bulge at this level. There is nuclear dehydration to a lesser degree at L4/5.” The doctor refers her to pain management with Dr Shetty, and advises that surgery may need to be considered if the pain management does not lead to improvement.
Dr Parkinson’s clinical file is found from page 203 of the ARD, as well as from page 80 of the respondent’s AALD. I have considered the documentation in the clinical file in its entirety, but (apart from my comments below and subject to any aspects of it that are specifically drawn to my attention during the parties’ submissions) do not believe that it adds to my consideration of Dr Parkinson’s evidence. Of importance:
(a)    there is a report from the doctor to the respondent’s insurer dated 18 October 2023, advising – “I will not comment on investigative reports and I have not reviewed this footage or the report as I don’t believe this to be appropriate. I base my decisions on the clinical history and examination of my patients at the time of my consultation”;
(b)    there is a report from the doctor to the applicant’s current general practitioner, Dr Ibrahim, dated 18 October 2023 – the report states that the applicant’s pain management interventions had not “helped a great deal”, and that he proposed surgery – the report also notes that he had discussed the risks and benefits of the proposed surgery with the applicant, and
(c)    there is a patient information form completed by the applicant on 3 June 2023, in which she advises (by circling one of five potential responses) that during the previous four weeks, her overall health had been poor, she could not do physical activities, she could not work, her usual social activities had been limited quite a lot, and she had been bothered by emotional problems quite a lot.
Apart from relying upon Dr Parkinson’s evidence, the applicant also relies upon the opinions of a medico-legal orthopaedic specialist, Dr Bodel. His report is dated 11 December 2023, and found at page 110 of the ARD.
Dr Bodel takes an uncontroversial history of the applicant’s 11 April 2021 injury. He notes that her initial CT scan following the injury showed “definite disc pathology at L4/5 and L5/S1”. He records that her pain following the injury never resolved, and that her 2 March 2023 CT scan showed deterioration to the appearance of the discs at L4/5 and L5/S1. A recent bone scan also showed increased uptake especially at her L5/S1 level, which the doctor opines is indicative of significant active pathology.
He further notes that Dr Stanford and Dr Parkinson have both recommended that the applicant undergo surgery, although Dr Stanford only recommends a single level fusion at L5/S1, whereas Dr Parkinson recommends a disc replacement procedure at L4/5 as well as an anterior lumbar interbody fusion at L5/S1.
He records that the applicant complained to him of severe back pain, slightly worse than her left leg pain, which went down to her calf. She also had numbness and tingling into her left foot. Bending, twisting, lifting, and prolonged sitting, all aggravated her pain. She had previously been able to train on a daily basis at the gym and walk 10km each day.
On examination, Dr Bodel recorded the applicant as being uncomfortable throughout his consultation with her. She moved slowly, she had tenderness at her lumbosacral junction, and she had restrictions with flexion and extension. He finds positive nerve root tension signs, her left calf to be smaller than her right calf, and probable signs of persisting radiculopathy affecting her L5 nerve root on the left. He notes that since her injury, she has gained weight and lost muscle tone.
Dr Bodel then refers to reviewing the applicant’s two 10 January 2024 statements, as well as a surveillance report from Procare, and reports from Drs Parkinson and Fuller. He answers specific questions put to him with the following opinions:
“The claimant has suffered a disc injury at the lumbosacral junction involving L4/5 and L5/S1. This occurred as a result of the injury that occurred while lashing shipping containers on a ship at work on 11 April 2021…There is a direct causal link between the episode of injury that occurred at work on 11 April 2021 and her ongoing complaints and the need for her surgery…The surgery as proposed is not just a simple disc replacement at L5/S1 but a disc replacement at L4/5 and a fusion at L5/S1. I believe that is reasonably necessary for the management of this injury…She has had extensive conservative treatment without any benefit and she has continued to steadily deteriorate, and therefore, the surgery is appropriate…The proposed surgery is reasonable and necessary and is likely to be successful, at least in relieving the leg pain and improving back pain. There is no guarantee of a complete resolution of symptoms but it is still a worthwhile exercise to consider…Her prognosis is uncertain. It will not improve without the surgery…The misinterpretation of the surveillance material is disappointing and the material observed is largely irrelevant.”
The applicant’s current general practitioner, Dr Ibrahim, has also provided a report, dated 8 March 2024 (found at page 4 of the applicant’s AALD). In the report:
(a)    he opines that the applicant has “severe chronic debilitating back pain”, which she has never falsely represented – “I certainly believe her pain is genuine”;
(b)    he opines that her discogenic back pain at the L4/5 and L5/S1 levels is consistent with her work injury;
(c)    he observes that her symptoms and pain have worsened over time – also causing her distress, depression and anxiety, and
(d)    he summarises with – “While I acknowledge the surgery has its limitations I do feel that if Tayla was to proceed with surgery and postoperative physiotherapy she has a better chance of reaching pre injury duties compared to not proceeding with the surgery.”

It appears that Dr Ibrahim has been the applicant’s treating general practitioner since 6 March 2023. Dr Lewis was her prior treating general practitioner, and appears to have treated her since the late 1990s. There are clinical records from Dr Lewis (produced to the Commission pursuant to direction) found from page 63 of the respondent’s AALD, and there are also clinical records (which actually incorporate some of Dr Lewis’ clinical records) from Cronulla Medical Practice (from where Dr Ibrahim practices) found from page 126 of the ARD. I have considered both sets of clinical records in their entirety, but will not be detailing them further unless specifically directed to aspects of them during the parties’ submissions, except to note:
(a)    Dr Lewis reviewed the applicant in relation to her work injury on 12 April 2021, 16 April 2021, 19 April 2021, 26 April 2021, 3 May 2021, 10 May 2021, 17 May 2021, 25 July 2022, 28 July 2022, 23 August 2022, 22 February 2023, 3 March 2023, and 6 March 2023 – his notetaking is not exhaustive, but it would appear that he initially considered the injury to have “resolved“ on 17 May 2021, and only noted her ongoing low back pain from 25 July 2022 (from when he saw the need to order further investigations and referrals to specialists);
(b)    Dr Ibrahim’s plan from 6 March 2023 was a return to work for the applicant – through physiotherapy treatment, exercise physiology, and referral to an orthopaedic specialist;
(c)    Dr Ibrahim noted on 5 April 2023 the applicant’s daily pain, sleeping difficulties, and inability to exercise, in circumstances where she “used to traine [sic] every single day” and also “used to wwalk [sic]”;
(d)    Dr Ibrahim noted on 13 July 2023 that the applicant was planning on following the advice of Dr Parkinson rather than Dr Stanford, and had also seen a pain specialist, Dr Shetty – she was in chronic pain and upset;
(e)    Dr Ibrahim noted the applicant’s quotes on 14 August 2023 – “i dont [sic] want to live my life on tablets” and “ive [sic] pushed myself for the last three years”;
(f)    Dr Ibrahim noted on 6 September 2023 the applicant’s chronic back pain, and reduced range of movement in all directions;
(g)    Dr Ibrahim noted on 21 September 2023 the applicant’s desire “to get back to do normal job” – but he also noted on 31 October 2023 that returning to work was not a viable option for her and that she needed a “permanent solution to her chronic lower back pain”, and
(h)    Dr Ibrahim noted on 18 October 2023 that Dr Parkinson had recommended the proposed surgery and that “Taylor has been in constant daily pain…she stopped all tablets ‘cause she felt they didn’t work. she has greatly been affected by this because she stopped training and not able to even walk short distances and…her sleep has also been affected”.
There are also clinical records in evidence from Beachside (found from page 230 of the ARD as well as from page 24 of the respondent’s AALD). The respondent’s AALD further separately contains reports from Beachside dated 28 June 2023 (at page 19), 5 September 2023 (at page 18), and 21 September 2023 (at page 17), as well as a treatment request from Beachside dated 2 June 2023 (at page 56). I have considered all this evidence in its entirety, but will not be detailing it further unless specifically directed to aspects of it during the parties’ submissions, except to note:
(a)    the 2 June 2023 treatment request states the rationale for the request being –
“Whilst awaiting approval for surgery (as recommended by medical) Tayla needs to regain her functional independence and confidence with every day movements. This plan will allow her to engage in supervised sessions to improve range of motion, strength and develop strategies for self-management”;
(b)    the 28 June 2023 report advises –
“We have had to slowly introduce exercises to Tayla particularly if they involve moving her spine out of a neutral position as this can often lead to a flare up. Our sessions have involved exercise to help strengthen and improve mobility to help her get back to her normal life and activities as well as the duties she will need to perform at work…Due to the nature of her injury, Tayla’s progress fluctuates depending on flare ups and how much pain she is in that day”;
(c)    the 5 September 2023 report advises as to the applicant’s slow progress – her sessions have been a combination of Pilates and weight training, with only one exercise able to be introduced per session due to the applicant’s “flare ups” – the exercises have helped the applicant regain strength but have not really assisted with functionality – the applicant is encouraged to swim, as that exercise apparently only caused her minimal pain;
(d)    the records refer to sessions between 1 May 2023 and 2 February 2024;
(e)    the records in relation to each individual session consistently focus upon strength and mobility exercises;
(f)    on 22 August 2023, the applicant discussed going back to the gym, and the physiotherapist suggested five exercises for her to try there – on 6 September 2023 however, the applicant advised that she was in a lot of pain after going to the gym – she did however find swimming less painful;
(g)    on 3 October 2023, it is recommended to the applicant that she exercise by walking backwards in a pool, and
(h)    on 30 January 2024, the applicant is recorded to have been in a lot of pain and to be not sleeping well – the physiotherapist was unable to assess her range of movement without muscle spasms.
Finally, the ARD contains radiological reports from the applicant’s three CT scans, her MRI scan, and her bone scan (as outlined by her – see paragraphs 17 and 18 above). These reports have been variously commented upon by Drs Parkinson and Bodel, and I do not intend to comment upon them further unless specifically directed to aspects of them during the parties’ submissions.

Respondent’s evidence

The respondent relies primarily upon the opinions expressed by Dr Fuller in his reports dated 17 July 2023 (found at page 24 of the ARD) and 2 November 2023 (found at page 32 of the ARD).
The doctor has only consulted with the applicant once on 5 July 2023. He was only provided with reports from Dr Stanford dated 4 April 2023 and 12 May 2023, as well as Dr Parkinson’s 15 June 2023 report, in order to prepare his 17 July 2023 report.
In that report, he records an uncontroversial history of the applicant’s 11 April 2021 injury. He records her current complaints of constant lower back pain radiating to her hips bilaterally, as well as radiating to her right thigh when the pain is severe. Walking and standing exacerbates her pain, as does standing up after a prolonged period of sitting. She was unable to go to the gym or walk for more than 20 minutes.
On examination, the doctor finds flexion producing pain, significantly limited extension, and straight leg raising producing pain. He does not find specific tenderness, an abnormal gait, or objective sensory disturbance.
He reviews radiology. The applicant’s 13 April 2021 CT scan demonstrated disc desiccation, mild disc bulges, and facet joint arthropathy at both the L4/5 and L5/S1 levels. The applicant’s 2 March 2023 CT scan demonstrated a more significant disc bulge at the L5/S1 level as well as continuing disc height loss at both that level and the L4/5 level. The applicant’s 18 April 2023 MRI scan also demonstrated disc desiccation, minor disc bulges, and facet joint arthropathy at both the L4/5 and L5/S1 levels.
The doctor notes the applicant did not seem to be exaggerating her symptoms and that her range of movement was consistent throughout his consultation with her. She did not particularly guard or restrict her movements.
He opines that there is a direct causal relationship between the development of her lower back pain and her 11 April 2021 injury. He does not find any pre-disposing factors relevant to the development of her symptoms. He opines:
“Given her young age it is unlikely that any intervention for her current symptoms would have been required had she not sustained the injury.”
He believes that further investigations are needed to clarify whether the applicant’s lower back pain arises from the “abnormality demonstrated on imaging at L4/5 and L5/S1”. When specifically asked for his opinion as to whether the surgery recommended for the applicant by Dr Stanford (described by the respondent’s insurer as a lumbar disc replacement at the L5/S1 level – and noting that Dr Parkinson had not recommended his proposed surgery when Dr Fuller examined the applicant) was reasonably necessary, the doctor opines:
“Given that there are degenerative changes at the L4/5 disc level as well as the L5/S 1 level I believe further investigations would be required to determine whether in fact the L5/S 1 level is responsible for her symptoms and hence proposed disc replacement would lead to improvement.”
The doctor’s 2 November 2023 report follows a request from the respondent’s insurer, in which the doctor is asked to review “Procare Surveillance footage/report 18 October 2023”. It does not seem that the doctor was provided with any additional documentation.
The doctor finds that the surveillance film footage is not consistent with the applicant’s complaints to him of her pain levels (see paragraph 43 above). He opines:
“The video footage demonstrates periods of walking without obvious distress around a park. She is able to arise from a prolonged period of sitting on a bench with legs crossed without obvious difficulty. She is observed to walk for prolonged periods of time within a shopping centre with no obvious difficulty. She is capable of getting into a car without undue difficulty…Spinal pain is a subjective problem in regard to a patient's history and is not necessarily able to be gauged objectively from observation in that patients can tolerate pain to manage activities however in this circumstance there is an obvious discrepancy between the history obtained and her ability to perform the activities she describes as being a problem in her daily activities…On the basis of the observed footage, I would not support surgery as an alternative to conservative measures for the imaging findings.”
The surveillance report reviewed by Dr Fuller is found at page 89 of the ARD. Unfortunately (as noted at paragraph 12 above), unlike Dr Fuller, I do not have the benefit of viewing the surveillance film footage that the report was based on. Neither Dr Bodel nor the applicant had that opportunity either, and while it seems that Dr Parkinson was afforded the opportunity to view the surveillance film footage, he did not take it (see paragraph 30(a) above).
The surveillance report is from Procare. It is dated 18 October 2023, and while a signature appears on the second page of the report, the author of the report is unknown. The report refers to surveillance of the applicant conducted on 11 October 2023, 12 October 2023, and 13 October 2023. It advises that during 20 hours of surveillance on those days, approximately 57 minutes of film footage of the applicant was obtained.
On 11 October 2023, the report advises that:
(a)    the applicant drove from her home to purchase a coffee – she then returned to her home 14 minutes later;
(b)    later she drove to a park at Botany, which she walked around (with an unknown female who had a pram) for 59 minutes;
(c)    she then sat down with “her right leg partly crossed on the seat and the other leg hanging off the seat” – she was also observed to cross both legs on the seat, and
(d)    she then stood up and pushed the pram to a children’s play area (distance not identified) – it is then not known what the applicant did until she returned to her car over two hours later.
On 12 October 2023, the report advises that the applicant was only sighted opening her blinds in her home.
On 13 October 2023, the report advises that:
(a)    the applicant carried several shopping bags in her left hand (precise number of bags and weight of bags not known) from her car to her home;
(b)    she was then driven to a shopping centre which she walked around for 32 minutes before sitting down to eat a kebab;
(c)    after sitting down for 22 minutes, she then walked around the shopping centre again for 10 minutes before being driven away;
(d)    she was then driven to a park at Miranda, where she walked for eight minutes before sitting down on a bench, her right leg being crossed over her left leg – after getting up and walking off, it is not known what the applicant did until she returned to the car 38 minutes later, and
(e)    she was then driven to a self storage location where it is not known what she did for 24 minutes.
Procare also prepared two earlier reports dated 14 June 2023 (at page 35 of the ARD) and 27 July 2023 (at page 65 of the ARD). While these reports were also signed, their authors were also not identified with the signatures. The reports are titled as desktop investigation reports, and their stated aims are said to be to review the applicant’s social media platforms for content and activity, largely in order to ascertain any active Australian Business Numbers (ABNs) or employment of the applicant’s. I do not find them to be particularly relevant to the issue that I need to determine, but will wait to see if the respondent makes any submissions in this regard.
The reports do however make some comments with regard to the applicant’s massage business (see paragraphs 22 and 25(a) above). The first report summarises as follows:
“We note her ABN entity commenced shortly after the date of injury on 31 May 2021. One previous advertisement was found for the massage business via an online booking site which showed she was available 7 days per week providing services for those with chronic/acute pain. The listing is no longer active and we found indication that she also once held a business lnstagram account however this has been removed or deactivated. No further information was found to indicate she is currently operating as a massage therapist.”
However, the second report then advises:
“Updated social media analysis confirms the Claimant's business lnstagram account @baayanya.body has been reactivated since our last report. The account initially commenced in March 2022 with the earliest post being 27 February 2023, and the last post dated 18 May 2023…Between these dates her posts detail the benefits of sports massage, and confirm 'Tayla' is the owner and massage therapist working at a home studio located at 12 Ermington Street, Botany NSW 2019, which our last report identified as owned by a family member.”
The respondent also relies upon a report from Dr Kafataris, injury management consultant, dated 11 February 2024 (found at page 11 of the respondent’s AALD). The focus of this report however is to investigate the level of the applicant’s incapacity and her return-to-work prospects. Nevertheless, the report:
(a)    advises – “The worker stated that she was motivated to return to work but wishes to focus on getting appropriate treatment which in her view was the operation proposed by Dr Parkinson before she could return to preinjury duties”;
(b)    advises that the doctor is sceptical that the applicant would be able to return to her pre-injury duties if she was to undergo the proposed surgery – “even with a good post-surgical result, long term manual handling restrictions are required to protect the prosthesis”, and
(c)    advises that the doctor had a discussion with Dr Ibrahim, and they both agreed that the proposed surgery was a significant operation for the applicant, having regard to her young age.
The report also summarises as follows in relation to the applicant’s current (noting that it is the most recent report in evidence before me, except Dr Ibrahim’s 8 March 2024 report) presentation and symptoms:
“This worker presents with chronic back pain following an injury at work. There are features of left L5/S1 disc lesion and features of a left L5 radiculopathy. I note the MRI suggests the possibility that one or both of the nerve roots i.e. L5 and S1 could be affected by the disc protrusion. The worker presents with at least some features of a chronic L5/S1 radiculopathy…The worker also presents with some yellow flags and features of symptom magnification. This does not mean that the worker has no pathology but that there are some inconsistencies during the examination that are not explainable on organic grounds although the cause for this is abnormal illness behaviour and address related to ongoing pain.”
Further, the respondent’s AALD includes Dr Stanford’s 4 April 2023 report (at page 61). In this regard, it is apparent that there is a further report from Dr Stanford dated 12 May 2023, which the respondent provided to Dr Fuller in order for him to prepare his reports (see paragraph 42 above). That report however has not been placed in evidence by the respondent nor does it appear to be included in any of the clinical records in evidence from Beachside, Dr Parkinson, Dr Lewis, or Cronulla Medical Practice.
In any case, Dr Stanford’s 4 April 2023 report is addressed to Dr Ibrahim and also contains an uncontroversial history of the applicant’s 11 April 2021 injury and ongoing lower back pain. The doctor reviews a CT scan of the applicant’s as showing complete loss of disc height at L5/S1 and a large central to left-sided disc protrusion. He notes that she has “tried all other avenues for pain relief” and recommends that she now consider “surgery to fuse the L5-S1 level or insert a disc replacement prosthesis”. He asks her to undergo a lumbar MRI scan (which she underwent on 18 April 2023).
Finally, the respondent’s AALD contains many pages of financial documents of the applicant’s. I do not find these documents to be particularly relevant to the issue that I need to determine, but will wait to see if the respondent makes any submissions in this regard.

Applicant’s submissions

The applicant made oral submissions on 22 April 2024. The submissions were recorded, and I will therefore not summarise the submissions in detail.

The applicant submits that in essence, the respondent’s reason for not approving the proposed surgery is related to what is said to be depicted in the surveillance report from Procare, and to what Dr Fuller says about the surveillance.
The applicant refers to the clinical records from Beachside (see paragraph 39 above), which refer to consultations contemporaneous with the surveillance. The focus of the relevant treatment is to improve the applicant’s functioning and mobility, and even includes an attempt to get back to the gym. The applicant is actively encouraged to exercise, and it is therefore no surprise that she endeavours to be as mobile as possible, which is consistent with the reporting in the Procare report. The clinical records reveal a consistent pattern of the applicant “trying to do things that don’t cause too much pain”.
The applicant then refers to the evidence presented from Dr Parkinson, and submits that the doctor has been consistent in his opinions that the proposed surgery is necessary to correct the applicant’s underlying pathology, as demonstrated in her MRI scan. It “distorts focus to worry about the level of functioning”. That is why the doctor refuses to review the Procare surveillance or its report (see paragraph 30(a) above) – he does not see the surveillance as relevant to his decision to recommend the proposed surgery as the solution to the applicant’s underlying discogenic back pain. He relies upon his clinical examination of the applicant as well as radiological investigations, rather than any surveillance film footage.
The applicant then refers to Dr Ibrahim’s clinical records from 6 March 2023 (see paragraph 38 above), which also refer to consultations contemporaneous with the surveillance. The doctor’s notes refer to the applicant’s attempts to “push herself”, to try to get back to work, to train, and to walk. They refer to the doctor’s recommendation for an exercise physiologist to be involved. They note however that a permanent solution is needed for her back pain.

The applicant then briefly refers to Dr Stanford’s 4 April 2023 report and submits it as being supportive of the proposed surgery being reasonably necessary.
In relation to Dr Bodel’s opinions, the applicant emphasises:
(a)    his diagnosis of disc pathology – which is what is required to be addressed in the proposed surgery;
(b)    his history of the applicant’s pre-injury ability to train in the gym every day and walk 10km every day;
(c)    his review of the Procare surveillance report – and his finding of it being largely irrelevant;
(d)    his finding in relation to the applicant’s work injury deteriorating over time;
(e)    his finding of an unbroken causal link between the applicant’s injury and her need for the proposed surgery, and
(f)    his noting of the applicant’s extensive previous conservative treatment for her injury without significant benefit.
In relation to Dr Fuller’s 17 July 2023 report, the applicant emphasises:
(a)    the doctor’s consultation with the applicant was on 5 July 2023, largely before the treatment at Beachside focusing upon exercise in assisting with her mobility and functioning;
(b)    the doctor accepted that the work injury caused her lumbar pathology as shown on the radiology that he viewed;
(c)    the doctor found the applicant to be consistent and not exaggerating, and
(d)    the doctor (see paragraph 48 above) did not find the proposed surgery to not be reasonably necessary, but he requested further investigations – the applicant notes that she underwent a bone scan on 16 August 2023.
In relation to Dr Fuller’s 2 November 2023 report, the applicant emphasises:
(a)    the doctor was not provided with any of the applicant’s treatment details since 5 July 2023, specifically any records from Beachside in relation to its focusing upon exercise in assisting with her mobility and functioning;
(b)    the doctor is “vague and speculative” in relation to the extract referred to at paragraph 50 above – he was unable to appreciate how the applicant was feeling while she was walking in the surveillance film footage;
(c)    the doctor does not adequately explain his reasoning for the “obvious discrepancy” found by him after viewing the surveillance film footage, and
(d)    the doctor does not adequately explain why he would support ongoing conservative treatment for the applicant when that conservative treatment had failed in the past.
The applicant then deals with the surveillance report from Procare, submitting that it only records 57 minutes of film footage over 20 hours or three days of surveillance. Therefore, to even suggest that it provides “a small snapshot into the applicant’s life is a gross overstatement”. The report is of limited probative value, yet it is the sole basis for the respondent suggesting gross inconsistencies in the applicant’s presentation. It was dismissed by Dr Bodel; it was considered immaterial by Dr Parkinson; and its reporting is in fact consistent with the conservative exercise regime being undertaken by the applicant at the time. Further, most importantly, I do not have access to the surveillance film footage in order to assess it myself.
The applicant also submits that she answers the observations in the surveillance report from Procare in her second statement (see paragraph 25 above). She disavows any suggestion that she is not in pain during the activities referred to in the report, and she refers to the medication that she was taking and the back brace that she was wearing during those activities.

Respondent’s submissions

The respondent made oral submissions on 22 April 2024. The submissions were recorded, and I will therefore not summarise the submissions in detail.

The respondent submits:
(a)    the surveillance report from Procare puts the applicant’s credit in issue – her statement in answer to the report is also inconsistent with Dr Ibrahim’s clinical notes on 18 October 2023 (see paragraph 38(h) above) in that the doctor then records that she had ceased medication and was not even able to walk short distances;
(b)    the surveillance report from Procare demonstrates that there are inconsistencies in the history taken by Dr Parkinson, which as a result undermine the basis for his opinions - the respondent also refers to Dr Parkinson’s opinions regarding the extent of the applicant’s restrictions on 19 October 2023, as being inconsistent with the surveillance report (see paragraph 27(b) above;
(c)    as a result, the doctors who have provided medical opinions supporting the proposed surgery have not been provided with a ‘fair climate’ in which to provide their opinions – see Paric v John Holland (Constructions) Pty Limited [1984] 2 NSWLR 505 and Paric v John Holland (Constructions) Pty Limited [1985] HCA 58 (Paric);
(d)    in relation to the weight to be given to the surveillance report from Procare considering my inability to view the relevant surveillance film footage, the respondent points out that the activities referred to in the report were largely conceded by the applicant in her second statement, and the respondent also points out that Dr Fuller was able to view the relevant surveillance film footage;
(e)    in Dr Fuller’s 17 July 2023 report (before he viewed any surveillance film footage), he queried whether the specific surgery then being recommended for the applicant was reasonably necessary as further investigations were needed first – the respondent submits that the applicant has not sufficiently answered Dr Fuller’s concerns in this regard;
(f)    Dr Parkinson has provided no opinion as to why the specific surgery that he is recommending for the applicant is reasonably necessary – in circumstances where Dr Stanford had earlier recommended an alternative form of surgery, and
(g)    Dr Bodel also does not sufficiently explain why the specific surgery recommended by Dr Parkinson is reasonably necessary for the applicant, especially given Dr Fuller’s concerns.

Applicant’s submissions in reply

The applicant made these submissions orally on 22 April 2024. The submissions were recorded, and I will therefore not summarise the submissions in detail.
The applicant submits:
(a)    any reliance by the respondent upon there being inconsistency in the applicant’s evidence because of her massage business is a “red herring”;
(b)    there is uncertainty as to what a ‘short distance’ (see paragraph 75(a)) is, having regard to the applicant’s ability to walk 10 km daily prior to her work injury and having regard to the unavailability of the relevant surveillance film footage;
(c)    the clinical records from Beachside (at page 243 of the ARD) refer to the applicant advising (on 28 September 2023) that she was bringing forward her appointment with her specialist (Dr Parkinson) in order for him to “review drugs” – as the applicant only next consulted with Dr Parkinson on 18 October 2023, I should therefore infer that she was still taking pain medication during the periods of the surveillance on 11-13 October 2023;
(d)    considering the opinions provided by Dr Parkinson in his 2 November 2023 report (see paragraph 28 above), he has clearly provided an explanation why the specific surgery that he is recommending for the applicant is reasonably necessary;
(e)    Dr Fuller is unaware of the treatment and investigations undergone by the applicant after his consultation with her on 5 July 2023 – the only concern raised by him in his 17 July 2023 report regarding whether surgery was reasonably necessary was the need for further investigations, and
(f)    as a result, Dr Fuller’s opinions are in fact the opinions that have not been provided in a ‘fair climate’ in accordance with Paric, when compared with the opinions proffered by Drs Parkinson and Bodel, who both had full knowledge of the applicant’s treatment and investigations when they provided their opinions.

FINDINGS AND REASONS

Is the proposed surgery (and its ancillary costs) reasonably necessary treatment for the applicant as a result of her accepted injury on 11 April 2021

Section 60 (1) of the 1987 Act provides as follows:
“(1) 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).”
Section 59 of the 1987 Act then defines ‘medical or related treatment’ as including:
“(a)    treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist,
(b)     therapeutic treatment given by direction of a medical practitioner,
(d)     the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,
(e)     any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,
(f)      care (other than nursing care) of a worker in the worker's home directed by a medical practitioner having regard to the nature of the worker's incapacity,
(f1)    domestic assistance services,
(g)     the modification of a worker's home or vehicle directed by a medical practitioner having regard to the nature of the worker's incapacity, and
(h)     treatment or other thing prescribed by the regulations as medical or related treatment.”
The first question to therefore determine is whether the proposed surgery is reasonably necessary treatment.
The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) (1986) 2 NSWCCR 2 (Rose), where his Honour 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.”
In Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab), Roche DP considered Rose and concluded:
“86. Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.
87. Giles JA added (at [49] in O’Shea) that the qualification whereby the necessity must be reasonable calls for an assessment of the necessity having regard to all relevant matters, according to the criteria of reasonableness. His Honour was talking in the context of whether an easement should be granted under s 88K of the Conveyancing Act 1919, which provides that ‘the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement’. However, his Honour’s observations are applicable in the present matter and are clearly consistent with Clampett.
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.”
I accept the statement evidence of the applicant. It provides a history of her treatment and an explanation of her symptoms that is consistent with the records of Drs Ibrahim, Parkinson, Stanford, and Bodel. Both her statement evidence and those medical records convey a sense of frustration with her pain, restricted movement, and inability to exercise like she used to. She has developed anxiety and depressive symptoms. She has tried conservative treatment, but now wishes to undergo the proposed surgery, in order to return to work and “get my life back”.
I find no credit issues with the applicant’s statement evidence. She was not cross-examined by the respondent, and the respondent only relies upon the surveillance report from Procare in its submissions (see paragraphs 75(a) and 75(b) above) to attempt to cast doubt upon her credit.
However, the respondent does not put the surveillance film footage that the report was based upon into evidence. I have therefore not had a chance to consider that footage. In my opinion, that significantly affects the weight to be afforded to the observations recorded in the report by its writer. It should also be noted that (see paragraph 52 above) I am not even aware of the identity of the writer of the report.
The observations in the report however have largely been corroborated by the applicant’s second statement (see paragraph 25 above). I am therefore able to give those observations some weight, and I accept the respondent’s submission at paragraph 75(d) above in this regard.
Having considered the report (see paragraphs 52-55 above), I find its observations to be unremarkable and not at all inconsistent with the symptoms that the applicant complains about in her statement evidence and to her treating medical practitioners. She is seen to push a pram and to carry shopping bags, but the significance of these activities cannot be identified from the report (see paragraphs 53(d) and 55(a) above). She otherwise walks and rests, her maximum walking capacity recorded at 59 minutes. Further, over three days, the writer of the report only obtained 57 minutes of surveillance film footage.
The applicant also says in her second statement that she was in pain while she was performing the activities recorded in the report, and that she had taken pain medication and was wearing a back brace. She had been encouraged to exercise, and this encouragement is also apparent when reviewing the clinical records from Beachside (see paragraph 39 above) around the time when the surveillance occurred.
The respondent submits that these statements from the applicant in her second statement are inconsistent with Dr Ibrahim’s record on 18 October 2023 that she had stopped taking pain medication and was unable to walk short distances. I reject this submission as:
(a) as submitted by the applicant (see paragraph 77(c) above), I am willing to infer that she only ceased taking pain medication after consulting with Dr Parkinson on 18 October 2023 (which was after the dates when the surveillance occurred), and
(b) considering that the applicant walked 10 km daily prior to her work injury (explained by her in her statement evidence (see paragraph 20 above), and corroborated to varying degrees in the records of Drs Parkinson (see paragraph 29 above), Bodel (see paragraph 34 above), and Ibrahim (see paragraph 38(c) above)), I am willing to infer that she would consider walking around a park for 59 minutes or walking around a shopping centre for 32 minutes to be negligible, and actually involving not even walking a short distance.
The respondent also submits that the restrictions placed upon the applicant’s activities by Dr Parkinson (see paragraph 27(b) above) are inconsistent with the activities recorded in the Procare surveillance report. I also reject this submission. In my opinion, apart from the applicant’s 59 minute walk around a park (which she explains caused her pain, even while taking pain medication), the activities recorded in the report do not with any clarity demonstrate that she performed activities inconsistent with the restrictions recorded by Dr Parkinson.
I therefore do not find that the Procare surveillance report affects the credit of the applicant’s statement evidence. I also note that Dr Bodel did not find the report to be significant (see paragraph 36 above), and that Dr Parkinson considered any review of it by him to be inappropriate in the context of his decision-making, which he based upon his clinical history taking from, and his examination of, the applicant.
Dr Fuller seems to be the only medical practitioner to review the actual surveillance film footage that the Procare surveillance report was based upon. However, I do not find his comments in his second report (see paragraph 50 above) regarding the footage to be helpful. He describes activities such as getting into a car, arising from a prolonged period of sitting, and prolonged periods of walking, as leading to “an obvious discrepancy between the history obtained and her ability to perform the activities she describes as being a problem in her daily activities”. The doctor notes no obvious distress or difficulty experienced by the applicant on the surveillance film footage. However:
(a)    I do not believe that the doctor provides adequate reasoning or explanation for his conclusion – especially in circumstances where I have found the observations of the applicant’s activities recorded in the Procare surveillance report to be unremarkable, and where the specific activities referred to by the doctor in his report as leading to his finding of an “obvious discrepancy” also seem to me to be unremarkable activities;
(b)    the doctor did not have benefit of the applicant’s second statement in explaining the activities in the surveillance film footage – that statement certainly negates the doctor’s conclusion that the applicant was not in any distress or difficulty, even if it was not obvious to him;
(c)    the doctor did not have the benefit of details regarding the applicant’s treatment (especially the encouragement directed towards her from Beachside regarding improving her functioning and mobility with exercise) since his one and only consultation with her on 5 July 2023, and
(d)    in circumstances where the doctor found his one and only examination of the applicant to be consistent and without exaggeration (see paragraph 46 above), it is surprising that he would find such significance in the surveillance film footage, so as to provide such a strong opinion as to the relevance of that footage, without explaining it in more detail or seeking further information.

I also accept the applicant’s submission at paragraph 70 above that in his first report, Dr Fuller was not ruling out the applicant requiring surgery, but simply advising that further investigations were needed before he could opine (see the extract from the report at paragraph 48 above). Then, between the date of his first report and the date of his second report:
(a)    the applicant underwent a bone scan on 16 August 2023 – noted by Dr Bodel (see paragraph 32 above) as demonstrating increased uptake especially at the applicant’s L5/S1 level;
(b)    the applicant attended pain management consultations with Dr Shetty;
(c)    the applicant underwent significant physiotherapy treatment – aimed at increasing her functioning and mobility, and
(d)    the proposed surgery was suggested by Dr Parkinson – being somewhat different surgery to that suggested by Dr Stanford (who had only recommended a single level fusion at the L5/S1 level) – Dr Fuller had only been asked to comment upon the surgery recommended by Dr Stanford in his first report.
None of these intervening events are recorded in Dr Fuller’s second report. In the circumstances, I find that the doctor’s failure to consider them means that his report has not been provided ‘in a fair climate’ in accordance with Paric.
I therefore find Dr Fuller’s opinions to be less reliable when compared with the opinions expressed by Drs Parkinson, Bodel, and Ibrahim. I reject the respondent’s submission that their opinions have not been provided ‘in a fair climate’ in accordance with Paric.
Dr Parkinson has been the applicant’s treating specialist since 15 June 2023. He is aware of her treatment history, all her radiological investigations, and her consistent complaints of pain. When he initially consulted with her (see paragraph 29 above), he considered that surgery may be required, but he referred her to pain management with Dr Shetty first. She also had physiotherapy treatment at Beachside following the initial consultation. However, by 18 October 2023 (see paragraph 30(b) above), those treatment modalities had not helped the applicant, and he therefore recommended the proposed surgery. He explains the rationale for the proposed surgery in more detail in the extract from his 7 November 2023 report quoted at paragraph 28 above. The applicant has discogenic back pain, radiological changes at the L4/5 and L5/S1 levels, and has trialled many forms of conservative management with limited improvement.
In my opinion, Dr Parkinson is placed in the best position to provide opinions regarding the applicant’s treatment, being her treating neurosurgeon. I intend to afford his reports significant weight.
Dr Parkinson’s opinion as to the proposed surgery being reasonably necessary for the applicant’s treatment, is fully supported by Dr Bodel.
Dr Bodel has access to the applicant’s radiological investigations, as well as material from Drs Stanford and Parkinson. He obtains a history from the applicant consistent with her statement evidence and he performs a full examination of her. He also considers the surveillance report from Procare. While he could explain his opinions in more detail (see paragraph 36 above), it is clear that he is supportive of the specific surgery proposed by Dr Parkinson, being “not just a simple disc replacement at L5/S1 but a disc replacement at L4/5 and a fusion at L5/S1”. He finds a “direct causal link” between the applicant’s accepted work injury and her need for this surgery. Conservative treatment has not helped the applicant and her condition has in fact deteriorated. The proposed surgery is likely to at least relieve the applicant’s leg pain and improve her back pain. It is reasonably necessary surgery in the doctor’s opinion.
Dr Ibrahim is also in a strong position, being the applicant’s treating general practitioner since 6 March 2023, to provide opinions regarding her treatment, and I also intend as a result to afford his reports and records significant weight. He is of course fully aware of all her treatment history, all her radiological investigations, and her consistent complaints to him of pain. He (see paragraph 37 above) considers those complaints of pain to be genuine and worsening over time, and opines that the proposed surgery will give her a better chance of a return to work. He (see paragraph 38(g) above) acknowledges the need to find a “permanent solution” to the applicant’s chronic pain.
Finally, I should note that:
(a)    the respondent has not submitted regarding the relevance of the reports from Procare dated 14 June 2023 and 27 July 2023 regarding the applicant’s massage business – in any case, having regard to my credit findings, I accept the applicant’s statement evidence in relation to the business (see paragraph 25(a) above);
(b)    I do not find the report from Dr Kafataris to be particularly helpful in my determination of the issue which I need to determine – its purpose was not to canvass that issue - the doctor is sceptical that the applicant would be able to return to her pre-injury work duties following the proposed surgery and he believes that surgery to be significant considering the applicant’s young age – however, he notes the applicant’s motivation to attempt to return to work following the proposed surgery and he notes her ongoing presentation with chronic back pain including features of radiculopathy, and
(c)    without Dr Stanford’s 12 May 2023 report (see paragraph 60 above), and without his opinion regarding the applicant’s current operative needs following the treatment that she has undergone since she last consulted with him, I do not propose to place significant weight upon his opinion as at 4 April 2023 regarding the surgery required by the applicant.
In all the circumstances, I do not find reliable evidence to question the treatment recommendation in relation to the proposed surgery for the applicant made by Dr Parkinson. I find that doctor’s opinions to be consistent with the opinions expressed by Drs Bodel and Ibrahim, and I prefer those opinions to the opinions expressed by Dr Fuller.
Having considered the whole of the evidence presented, I am comfortably satisfied that the applicant has discharged her onus of proving on the balance of probabilities that the proposed surgery is reasonably necessary treatment for her accepted work injury and its resulting chronic discogenic back pain.
In considering the matters referred to in Rose and Diab, I find:
(a)    the proposed surgery is appropriate treatment for the applicant’s chronic discogenic back pain – it has been recommended by the applicant’s current treating neurosurgeon, Dr Parkinson, and its appropriateness is supported by the applicant’s current treating general practitioner, Dr Ibrahim, as well as Dr Bodel – it seems that Dr Fuller does not consider it to be appropriate (although the doctor has only specifically provided opinions regarding a previous proposed form of surgery recommended for the applicant by Dr Stanford) but I have found Dr Fuller’s evidence to be less reliable than the evidence of Drs Parkinson, Ibrahim and Bodel;
(b)    in relation to alternative treatment available to the applicant, it is clear from the applicant’s statement evidence that she has attempted to treat her back pain with physiotherapy, pain management, medication and other conservative treatment modalities, without success – she had considered surgery to be “a last resort” (see paragraph 19 above) but considering the failures of the conservative treatment modalities, she now “desperately” wants to proceed with the proposed surgery in order to “escape this daily barrage of pain and discomfort” (see paragraph 24 above) – Drs Parkinson, Ibrahim, and Bodel are all satisfied that considering the failures of the conservative treatment modalities, the proposed surgery is now needed – I prefer their opinions in this regard to the opinions of Dr Fuller who could only recommend that the applicant undergo further conservative treatment (which has been exhaustively tried, without success, in the past);
(c)    the costs of the proposed surgery (see paragraph 26 above in relation to Dr Parkinson’s likely fees) are reasonable considering its nature – the respondent has led no evidence nor made any submissions regarding the unreasonableness of the costs – although the costs are likely to be significant (once hospital fees, post-operative rehabilitation fees, and other associated expenses are taken into account), they need to be considered in the context that the proposed surgery is aimed at relieving the constant pain experienced by the applicant for over three years – the costs are therefore not likely to be that significant for a finding to be made that the proposed surgery should be ”forborne by” the applicant;
(d)    in relation to the potential effectiveness of the proposed surgery, Dr Parkinson opines it to be essential (see paragraph 27(d) above), Dr Bodel opines that it is likely to be successful at least in relieving the applicant’s leg pain and improving her back pain (see paragraph 36 above), and Dr Ibrahim opines that the applicant has a better chance of returning to her pre-injury employment duties if she undergoes the surgery compared with if she does not proceed with it (see paragraph 37(d) above) – Dr Fuller does not believe that the surgery will be successful, but I have found that I prefer the opinions of Drs Parkinson, Bodel and Ibrahim, and
(e)    considering the opinions of Dr Parkinson as well as Drs Bodel and Ibrahim, I find that the proposed surgery has acceptance by medical experts as being appropriate and as likely to be effective - Dr Fuller has not provided a specific opinion regarding the specific surgery proposed by Dr Parkinson.
It is now necessary to consider whether there is a material contribution between the injury to the applicant on 11 April 2021 and the proposed surgery.
In Murphy v Allity Management Services Pty Limited [2015] NSWWCCPD 49 (Murphy), Roche DP stated:
“58. Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman[2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd(1996) 12 NSWCCR 716).”
The respondent does not dispute that the applicant sustained a compensable back injury on 11 April 2021. Its submissions did not address the material contribution between that injury and the need for the proposed surgery, but instead concentrated upon whether the surgery was reasonably necessary. Indeed, in his first report, Dr Fuller (see paragraph 47 above) finds a direct causal relationship between the development of the applicant’s lower back pain and her 11 April 2021 injury. He also opines that “any [my emphasis] intervention for her current symptoms” is required because of the injury. His second report does not qualify this opinion, but advises that the intervention that he would propose would be ongoing conservative treatment measures rather than the proposed surgery.
In any case, I have no difficulty in finding a material contribution between the applicant's
11 April 2021 injury and the proposed surgery. I have accepted that the proposed surgery is reasonably necessary in order to treat her chronic discogenic back pain, which arises from the injury which she sustained on 11 April 2021, according to Dr Parkinson (see paragraphs 27(a), 28, and 29 above), Dr Ibrahim (see paragraph 37(b) above), and Dr Bodel (see paragraph 36 above). Dr Bodel in fact finds “a direct causal link” between the injury and the proposed surgery, rather than a mere material contribution.

SUMMARY

Considering the whole of the medical and other evidence presented, I find that the surgery proposed for the applicant by Dr Parkinson (a L4/5 total disc replacement and L5/S1 anterior lumbar interbody fusion) as referred to in his 18 October 2023 surgery request to the respondent, is reasonably necessary medical treatment as a result of the injury to the applicant on 11 April 2021.
There will be an award for the applicant pursuant to s 60 of the 1987 Act, and the respondent will be ordered to pay for the costs of and incidental to the surgery (a L4/5 total disc replacement and L5/S1 anterior lumbar interbody fusion) proposed for the applicant by Dr Parkinson, as referred to in his 18 October 2023 surgery request to the respondent.

[2024] NSWPIC 237

8 May 2024