McLeod v Precast Systems Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McLeod v Precast Systems Pty Ltd [2024] NSWPIC 343
APPLICANT:	Mitchell McLeod
RESPONDENT:	Precast Systems Pty Ltd
MEMBER:	Fiona Seaton
DATE OF DECISION:	26 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for proposed lumbar fusion surgery; whether surgery was reasonably necessary as a result of accepted injury; whether expert opinions in a fair climate; Paric v John Holland (Constructions) Pty Ltd; Held – the lumbar spine surgery proposed is reasonably necessary treatment as a result of injury, the respondent is to pay for the costs of the surgery pursuant to section 60.
DETERMINATIONS MADE:	The Commission determines: 1. The L5/S1 anterior lumbar interbody fusion and L5/S1 posterior decompression and fusion surgery proposed by Dr Bhisham Singh is reasonably necessary medical treatment as a result of the applicant’s lumbar spine injury pursuant to s 60 of the Workers Compensation Act 1987. The Commission orders: 2. The respondent is to pay the future medical hospital and related expenses of the L5/S1 anterior lumbar interbody fusion and L5/S1 posterior decompression and fusion surgery proposed by Dr Bhisham Singh in accordance with his request dated 22 October 2023 at the gazetted rates.

STATEMENT OF REASONS

BACKGROUND

The applicant Mr Mark McLeod was employed as a concreter with the respondent Precast Systems Pty Ltd in Armidale. He has an accepted psychological injury as a result of this employment which is not the subject of these proceedings. The applicant injured his back as a result of the nature and conditions of employment with the respondent for which liability is accepted. The deemed date of injury is 27 February 2019.
On 22 October 2023 the applicant’s treating orthopaedic surgeon Dr Bhisham Singh sought approval for two stages of surgery, the first being L5/S1 anterior lumbar interbody fusion and the second being L5/S1 posterior decompression and fusion.
On 7 November 2023 the respondent issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 disputing liability for L5/S1 anterior lumbar interbody fusion, L5 posterior decompression and fusion and a vascular screening examination. The dispute was confirmed on 28 March 2024 following an internal review.
By an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (Commission) on 17 April 2024 the applicant claims future medical expenses for the surgeries recommended by Dr Singh pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
The dispute was listed for conciliation/arbitration for determination of whether the surgery proposed by Dr Singh is reasonably necessary as a result of injury pursuant to s 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree that the issue in dispute is whether the surgery proposed by Dr Singh is reasonably necessary as a result of injury pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing before the Commission on 7 June 2024 by audio visual link. The applicant was represented by
Mr Stuart Moffet of counsel instructed by Mr Covic of Walker Law Group. Ms Lyn Goodman of counsel appeared for the respondent instructed by Ms McCaffery of Rankin Ellison.
Mr Massih was also present.
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) the ARD and attached documents, and
(b) the respondent’s Reply and attached documents, excluding that part of
Dr Hopcroft’s report dated 22 September 2021 following the history section on page 13 of the Reply.

Oral evidence

There was no application made to call oral evidence.

Applicant’s evidence

The applicant’s evidence is set out in his signed statements dated 17 March 2022 and
17 April 2024. Much of the statement of 17 March 2022 relates to his psychological injury and I do not intend to refer to that part of the statement that is not relevant to these proceedings.
The applicant began working full time for the respondent in around April 2018 as Head Concreter. The applicant describes the nature of his work in his statement of 17 March 2022.
He was constantly asked to undertake repetitive, physically demanding manual labour that involved a significant amount of heavy lifting, bending and manoeuvring. He often alone lifted extremely heavy concrete moulds, panels and wheel stops weighing more than 75kg, as well as 6m by 2.4m reinforcement mesh to lay in slabs and driveways. The employer was always rushing his work and asking him to carry out work for which he was not licensed.
Two to three months into his employment the applicant noticed increasing lower back pain and notified his employer.
He continued to feel back pain and continued to advise his employer however the applicant continued to be required to undertake difficult heavy-duty lifting and other tasks on his own.
On 25 October 2018 the applicant sustained a left hand injury and a lower back injury and made a WorkCover claim. Liability was accepted and weekly payments and medical expenses were paid.
He strained his back on a job in around December 2018 but felt he had to keep working although he was in a lot of pain.
The applicant’s last day of work was 27 February 2019 when he was put on to shovelling sand which was repetitive work for a labourer. There was lighter work available more suited to his qualifications as a concreter and particularly in light of his back pain condition. This work aggravated his back pain.
After hurting his back at work the applicant was placed on strong opioids including Targin and developed an opioid dependency.
He was admitted to Inverell District Hospital for addiction management, depression and suicidal ideation on 15 December 2019. The applicant receives regular treatment for his alcohol and opioid dependency which have been in remission since early 2021.
The applicant updates his earlier statement in his statement of 17 April 2024.
In 2022 he underwent a bone scan, bilateral L5/S1 facet joint corticosteroid injections, a lumbar radiofrequency ablation, and a CT guided steroid injection at the left L4/L5 facet joint.
In 2023 the applicant underwent CT guided bilateral L4/L5 facet joint injections, an X-ray and MRI of the lumbar spine, and bilateral L5/S1 and L4/L5 facet thermal radiofrequency ablation surgery.
On 22 October 2023 Dr Singh, proposed L5/S1 posterior spinal fusion surgery.
The applicant remains significantly impacted by his work-related physical injury and experiences lower back pain that radiates down his right leg with pins and needles and numbness in his right foot. He has restricted movement in the lower back. His ability to perform activities of daily living are affected.
He wishes to undergo the surgery proposed by Dr Singh. He has trialled multiple conservative treatment options over the years, including trying physiotherapy and pain management including medication, specific treatment with a pain specialist and injections, with no lasting benefit.
The applicant was examined by Dr Peter Khong, neurosurgeon and spine surgeon, on
3 April 2024 as arranged by the applicant’s solicitors in relation to this dispute.
Dr Khong diagnoses severe lower back pain due to musculoligamentous strain and exacerbation of previously asymptomatic degenerative changes in lumbar spine. Work is the main contributing factor to previously asymptomatic degenerative changes.
Dr Khong’s opinion is that a fusion at L5/S1 +/- L4/L5 could be considered reasonably necessary at this point.
In the doctor’s opinion the applicant is unlikely to improve without surgery, his pain has persisted for over five years and all non-operative management has failed. Although the results of the fusion will be unpredictable he does not agree that there is no role for surgery.
Dr Kumar, general practitioner, referred the applicant to Solitude Health for physiotherapy treatment on 29 July 2019. The referral says the applicant was commenced on Targin medication for the pain about three months ago but no physiotherapy has been commenced.
Dr Siu, treating neurosurgeon, reports on 14 February 2020 that he thinks the applicant’s ongoing severe back pain is likely discogenic as suggested by his MRI, and the mainstay of treatment would be non-operative. As he would benefit from a pain specialist review, Dr Siu referred the applicant to Dr Clarke in Coffs Harbour.
On 29 May 2020 Dr Clarke, anaesthetist and pain specialist, reports that he has seen the applicant on two occasions and he is unable to assign a cause for the pain after reviewing the imaging and examining him. Dr Clarke recommends he has a bone scan, assessment by a clinical psychologist experienced in dealing with pain patients, a de-escalation of opioids and consults a physiotherapist for assessment and formulation of a graded exercise program.
Dr Clarke recommends four sessions of physiotherapy in the first instance followed by a further two review sessions. He notes the applicant had apparently had two previous physio sessions with minimal impact.
Dr Lim, general practitioner, in his report of 9 November 2021 diagnoses lumbar spine radiculopathy, L5/S1 bulging disc with minimal compression of the thecal sac (CT 3/21) and chronic pain with psychosocial barriers.
Dr Lim recommends physiotherapy to improve physical function as well as review with a spinal surgeon, a psychologist and an MRI of the lumbar spine.
Dr Lim refers the applicant to Dr Singh, on that date for review.
Dr Singh reports to Dr Lim on 28 January 2022 that the MRI scan of the lumbar spine does not show any significant pathology to explain the applicant’s symptoms. A nuclear medicine bone scan is advisable to rule out any occult pathology.
There are no clear surgical targets at that point in time the doctors says, and chronic pain management may be of benefit.
On 31 May 2022 Dr Singh reports that as the bone scan does not show a great deal of pathology and the MRI scan does not show any neurological impingement, treatment should be conservative with no clear surgical targets.
He recommends a pain specialist as the applicant is likely to require pain intervention techniques such as facet joint blocks and radiofrequency ablation.
Dr Singh arranges for the applicant to trial facet joint blocks in the lumbar spine on
1 July 2022 as he has ongoing pain. He intends to review him with the result for the next step in management.
Dr Thomas reports to Dr Singh on the applicant’s bilateral L5/S1 facet joint corticosteroid injections on 18 July 2022.
On 6 October 2022 Dr Williams reports to Dr Singh on a CT guided steroid injection left L4/5 facet joint.
On 18 November 2022 Dr Singh reports the facet joint blocks have worked during the anaesthetic phase and the applicant was due to have another injection in the next few days. The response so far to these blocks has been of valuable diagnostic importance in his view. If the pain returns the next step would be to have radiofrequency ablation (RFA) of the facet joints.
In his report to the insurer on 13 February 2023 Dr Singh notes he has recommended consideration of RFA of lumbar facets. He clarifies that the applicant’s response to the injections gives a better idea of the pain generator, with RFA likely to be useful.
On 13 April 2023 Dr Lim notes the applicant has ongoing pain and is due for review with
Dr Singh in Taree. Dr Lim asks the applicant to locate a local physiotherapist to provide some manual therapy following his last injection the following week.
Dr Singh next reports on 11 May 2023 that he has physically assessed the applicant. The applicant has pain on extension and has responded to facet joint blocks in the lower spine. As the symptoms do not match up with the imaging which is now more than two years old,
Dr Singh recommends a standing X-ray and MRI of the lumbar spine.
The doctor also recommends an interventional pain specialist is consulted and he refers the applicant to Dr Cartwright for RFA of the facet joints. Dr Singh feared the bulging disc at L5/S1 shown on the MRI scan from 2021 has progressed.
The pain specialist in Armidale could not see the applicant for four months and Dr Singh reports on 25 May 2023 that the applicant is happy to return to Sydney to trial RFA.
On 26 June 2023 the MRI lumbar spine report concludes lumbar spondylosis with facet joint arthropathy bilaterally at L4/5 and L5/S1, no canal stenosis nor neuroforaminal exit narrowing. The lumbar spine X-ray on 27 June 2023 includes a finding of possible degenerative change L5/S1.
There is an operation report dated 26 July 2023 from Dr Singh for bilateral L5/S1 and L4/5 facet thermal RFA and the applicant reported significant improvement of pain.
On 17 August 2023 Dr Singh reports there is some recurrence of pain after the ablation surgery and the applicant should continue with his self-managed exercise program, for review in three months.
Dr Singh then notes on 22 October 2023 that pain has returned, the applicant has trialled conservative treatment and is not really responding, and they discuss the pros and cons of surgery.
The doctor requests that Dr Theivendran at Harbour Vascular carry out a pre-operative assessment and notes the applicant will continue with physiotherapy and exercises and with pain management. He is likely to require surgery and he will consider his options.
Dr Singh reports to Dr Lim on 21 December 2023 that he has had a follow-up conference with the applicant via telehealth, the request for surgery has been denied by his insurer, he is likely to require surgery and he will consider his options.
In his medico legal report to the applicant’s solicitor on 7 March 2024 Dr Singh describes his quandary of whether to ignore the applicant’s symptoms of pain or treat him for his pain.
Conservative treatment has provided no lasting benefit and the alternative to surgery therefore is to trial chronic pain management, thereby accepting that he is going to have permanent functional incapacity.
Dr Singh says the only surgery he can offer him is a staged L5/S1 decompression and fusion. He can offer surgery with the hope that there may be improvement of his symptoms by 50 to 60%, or he can refuse to treat the pain. His opinion is that surgery is reasonably necessary.
Dr Singh’s estimate of fees for surgery is $8,592 for spinal fusion, anterior column and $12,385.50 for spinal decompression with bone graft.

Respondent’s evidence

The respondent relies on the report of Dr Nair, orthopaedic surgeon. In his first report of
23 October 2023 the doctor says there is no further predictable treatment and surgery is certainly not indicated. He assesses 7% whole person impairment.
In his supplementary report of 21 November 2023 Dr Nair requests more information about the request for the proposed surgery.
On 1 December 2023 Dr Nair provides his opinion that the surgery proposed is highly unpredictable in nature and that it would not be offered by a quorum of spinal surgeons, including members of the Spine Society of Australia.
Dr Nair says that he would certainly not offer that permutation of surgery “as the clinical features and the pathoanatomy, in my opinion, do not warrant such surgery”.[1]
[1] Reply page 9.
Dr Hopcroft, general surgeon qualified by the applicant’s solicitor, in his report of
22 September 2021 outlines the history of the applicant’s back injury and reviews the CT scans of 3 December 2018, 8 September 2020 and 1 March 2021, and the MRI scan of
[2] Reply page 12.
24 October 2019.[2]
Dr Singh requests the input of Dr Sushama Deshpande of Norwest Respiratory & Sleep Disorders, on 29 September 2023. Dr Singh says “[b]efore we consider lumbar fusion, I would be grateful for your input.”[3]
[3] Reply page 15.
On 22 October 2023 Dr Singh requests a procedure of cotinine testing for three consecutive weeks and 10 days pre surgery, the reason given as pre op assessment.
Dr Singh in answer to the insurer’s request for clarification says on 27 October 2023 this is “to confirm that he has ceased smoking. If he hasn’t, I am not willing to proceed with surgery as the outcomes are potentially worse.”[4]
[4] Reply page 17.
The insurer’s List of Payments is also included with the reply.

Applicant’s submissions

The applicant made oral submissions which have been recorded and form part of the Commission’s record. These are summarised below.
The applicant sustained an accepted injury to the lower back in October 2018 and claims the cost of fusion surgery to the lumbar spine as recommended by his treating orthopaedic surgeon Dr Singh.
In the conciliation phase the respondent indicated it intended to make a submission about physiotherapy treatment.
The applicant’s submission is that he did have physiotherapy. Dr Siu provides a report to
Dr Thatcher at Inverell on 14 February 2020, 16 months after the injury, and says the applicant had some physiotherapy and has been on Targin although the pain has remained non-remitting. The doctor also refers to the MRI of the lumbar spine performed in October 2019, one year after the injury, that demonstrated a mild disc bulging at L5/6.
The applicant commenced treatment with Dr Eric Lim in November 2021. Dr Lim takes a history that the lower back injury was due to repetitive heavy lifting at work. The applicant saw his general practitioner in November 2018 and went on restrictions, but there were complications with the performance of work under those restrictions.
Dr Lim reports that the applicant found it difficult to sleep due to pain, he is fatigued during the day and as a result exercising causes too much pain. The applicant stopped physiotherapy due to COVID-19. Dr Lim refers the applicant to Dr Singh.
The applicant later referred to the report of Dr Khong. In his report of 3 April 2024 Dr Khong records that the applicant started physiotherapy. This in combination with Dr Siu’s report is evidence, the applicant says, that he had some physiotherapy in around early 2019 and 2020 which was of no benefit to him.
Dr Mo, general practitioner, notes ongoing lower back pain and right sided lower leg pain on 14 January 2022, and that the applicant has trialled physiotherapy and simple analgesia.
The certificate of capacity on 26 July 2019 for example refers to a management plan including analgesia, antidepressants, physiotherapy and psychologist review with a referral made to a psychologist.
The applicant notes the List of Payments does not include treatment expenses before the claim was accepted in about September 2019. There is no record made by the respondent of treatment expenses including of physiotherapy between about March and September 2019.
Based on the contemporaneous records of the doctors, the applicant says on the balance of probabilities it should be accepted that the applicant received physiotherapy treatment in this period, and that this did not assist him.
With regard to the proposed surgery the applicant relies on the reports of Dr Singh.
In his first report of 28 January 2022, more than three years after the injury, the doctor records a history of no work in that period. Targin has been used by the applicant at 20mgs a day, the MRI did not show significant pathology in terms of disc pathology and there was no suggestion of nerve root encroachment from the MRI. This is conceded by the applicant.
Dr Singh’s first recommendation was to have a bone scan to rule out any occult pathology. He then reports the bone scan does not show a great deal of pathology, with some uptake of tracer in the facet joints L4/5 and on the left side of the L5/S1.

This is important in the applicant’s submission because eventually that is the area that the doctors cannot rule out in terms of a source of the pain, and which the proposed spinal fusion is designed to stabilise.
At this point Dr Singh says the treatment should be conservative and he recommends a pain specialist, facet joint blocks and RFA. Dr Singh reports that he is arranging for the first of those two other measures, the facet joint blocks, to occur.
There was denial of liability that went to the Commission in relation to secondary psychological expenses in this period. The applicant submits that some would say that is another box that should be ticked before the surgery is to occur.
Four months later Dr Singh reports that the facet joint blocks at L4/5 and L5/S1 have worked during the anaesthetic phase and another injection was due.
Dr Singh refers to the RFA of the lumbar facet joints. Diagnostic injections were used on
18 November 2022 and they were of valuable diagnostic importance, giving a better idea of the pain generator. The doctor says the ablation is also likely to be useful.
In May 2023 Dr Singh examined the applicant who had come down from Armidale. His examination showed limited forward flexion and positive leg raising bilaterally at 50 degrees which is of some significance. He refers to the uptake on the bone scan and the recommendation at that point was a further MRI.
Dr Singh on 25 May 2023 recommended RFA to the lower lumbar facet joints to help manage the applicant’s pain.
The MRI on 26 June 2023 concludes there is lumbar spondylosis with facet joint arthropathy bilaterally at L4/5 and L5/S1. The applicant says this is consistent with what was picked up on the bone scan two years earlier, and again there is no suggestion of a major disc lesion.
Dr Singh provides an operation report on the RFA surgery on 26 July 2023. This was successful with a significant improvement in pain.
Three weeks later in August 2023 Dr Singh says there is some recurrence of pain after the improvement. The applicant’s submission is that as the pain did return this is an indicator for further surgery.
Dr Singh recommends the applicant carry on with the self-managed exercise program and he will review him after three months.
The applicant submits that Dr Singh could have recommended an appropriate session or a plan of physiotherapy at that point in time if he thought that was necessary, but what he recommended was a self-managed exercise program. The applicant submits that was the doctor’s preferable conservative physical treatment at that time.
As the back pain has returned Dr Singh then discusses the treatment options for back pain from lumbar disease including physiotherapy, pain medication, radiofrequency ablation injections and surgery.
The applicant has trialled conservative treatment and he is not really responding in
Dr Singh’s opinion. As the pain was ongoing and could be localised to the lumbosacral junction, the surgical option is to consider a fusion at L5/S1. The doctor says this is now reasonably necessary.
The treatment the doctor recommends is an anterior lumbar interbody fusion followed by a posterior spinal fusion of L5/S1. The applicant says this is a sophisticated recommendation of two surgeries that happen at two different times, one anterior, one posterior, one is two level and the other is one level but in combination it is a two level procedure.
Dr Singh requests a pre-operative assessment for the proposed fusion and then reports to
Dr Lim that the surgery request has been denied by the insurer for the reasons articulated by Dr Nair.
Dr Singh in his report to the applicant’s solicitor says he has been seeing this gentleman for more than two years, he has ongoing lower back pain with a trial of multiple conservative treatment options of no lasting benefit, he was referred to a pain specialist and there was some improvement in the anaesthetic phase but the pain has returned.
The applicant’s submission is that unlike a disc protrusion which requires a different sort of surgery, in cases involving a fusion as is this case you do not always see a great deal of pathology.
Dr Singh refers to his quandary of whether to ignore the symptoms or treat the applicant’s pain. He has managed to localise his pathology to the lumbar sacral junction and surgery may improve his back pain from the point of view of the facet joint disease.
Dr Singh says he understands Dr Nair’s point of view but he has two choices as his treating doctor; to offer surgery with the hope that there may be improvement of the symptoms by 50 to 60% or refuse to treat the pain. He lists the conservative measures that have failed to have any significant lasting benefit and surgery is therefore reasonably necessary.
The applicant also relies on Dr Khong’s opinion as an independent medical examiner.
Dr Khong considered a fusion at L4/5 +/- L5/S1 could be considered reasonably necessary at this point. The applicant is unlikely to improve without surgery as his pain has persisted for over five years and he has failed all non-operative management options. The doctor’s opinion is that he is unlikely to improve without surgery.
Dr Khong agrees the results of fusion will be unpredictable and the MRI demonstrates no significant degenerative disc disease, but he does not agree there is no role for surgery.
The applicant in his statement of April this year says he wishes to undergo the surgery proposed by Dr Singh.
The applicant says he has tried physiotherapy and pain management including medication.
The applicant’s submission is that there is no reason to doubt that and there is no evidence contradicting what the applicant says.
Dr Nair’s opinion should not be preferred as his analysis is brief in the applicant’s submission. The doctor refers in his first report to a sequence of events and after briefly outlining the history and treatment, he says the applicant has reached maximum medical improvement. There is no further predictable treatment with surgery certainly not indicated.
The applicant submits that this is an ipse dixit. As discussed in Edmonds the applicant says this answer is not responsive to the question on its face. The report is concerned with assessing whole person impairment rather than the need for surgery.
In his next report Dr Nair says he does not have the information available to him to ascertain whether the treatments are reasonably necessary. The applicant notes the surgery was recommended on 22 October 2023 and the insurer knew from Dr Singh what the proposed surgery is.
The applicant says in Dr Nair’s next report he does not explain, once he knows the level of the proposed surgery, how it was that the further information informed his decision.
Dr Singh says notwithstanding the MRI the facet joints are producing pain and the conservative treatment has not remedied that, so surgery is reasonably necessary.
Dr Nair says there are no Modic changes, referring to degenerative diseases, and the applicant asks what the importance of acute changes rather than chronic changes is, which is not explained by the doctor.
The applicant submits that Dr Nair without citing authority says the surgery would not be offered by a quorum of spinal surgeons including members of the Spine Society of Australia. The applicant views this opinion as more in keeping with the determination of issues in a medical negligence case.
In the applicant’s submission the doctor does not address the question of whether the surgery is reasonably necessary as a result of the injury. Dr Nair says he would not offer that permutation of surgery but he does not say what specific type of surgery might be reasonably necessary or why this surgery is not reasonably necessary.
The opinions of Dr Singh and Dr Khong should be preferred, the applicant says, as Dr Singh treated the applicant for a long time before coming to the view that the surgery was reasonably necessary. In his first report he did not even flag surgery, intending to rely on conservative treatment alone at that time.
The applicant referred to Diab v NRMA [2014] NSWWCCPD 72 at paragraph 76 and Rose v Health Commission of NSW [1986] NSWCCR 32 where Burke DCJ went through the criteria for considering whether medical treatment is reasonably necessary.
The applicant did not make submissions on the cost factor as the cost is what it is for a spinal fusion, but the actual or potential effectiveness is relevant.
Dr Singh and Dr Khong both refer to that criteria, and the place of the surgery in the usual medical armoury of treatments. The applicant submits that with the combination of subtle pathology and lasting symptoms fusion is not an unusual treatment option. All the alternative treatments have been trialled and the final piece of the armoury is the proposed surgery.

Respondent’s submissions

The respondent made oral submissions which have been recorded and form part of the Commission’s record. These are summarised below.
The respondent first submits in response to the applicant’s reference to Dr Nair’s opinion that the proposed surgery would not be offered by a quorum of spinal surgeons including members of the Spine Society of Australia, that in Diab Roche DP’s last factor to take into account is the acceptance of the treatment by medical experts.
The submission of the respondent is that the reports of Dr Singh and Dr Khong have not been made in a fair climate.
The doctors seem to be of the view that the applicant has had a deal of physiotherapy whereas in fact, if he has had any at all, it has been negligible and very early in the piece.
The first reference to physiotherapy the respondent says is on 29 July 2019 when Dr Kumar, general practitioner, says that no physiotherapy has been commenced.
Dr Siu on 14 February 2020 seems to suggest the applicant has had some physiotherapy and he has been on Targin for pain which has remained non-remitting.
The applicant’s first statement makes no reference to him having had any physiotherapy treatment and importantly in the List of Payments with the reply there is absolutely no payment listed for physiotherapy.
The respondent submits with regard to the back injury that the applicant complains of unremitting pain without any real explanation for it in the investigative material. The MRI of 23 October 2019 demonstrates mild disc bulging at L5/S1 and that the disc height and signal intensity are maintained.
Dr Siu, neurosurgeon, reports on 14 February 2020 that the mainstay of treatment would be non-operative. The applicant would benefit from a pain specialist review and he referred him to Dr Clarke.
Dr Clarke is unable to assign a cause for the applicant’s pain after reviewing the imaging and examining him. The doctor says the imaging has not been helpful in identifying an obvious cause but that does not mean he does not have pain.
The respondent’s submission is that an explanation is being given for the pain by Dr Clarke. The doctor says pain occurs in the context of premorbid anxiety exacerbated by an adversarial relationship which developed between him and his employer.
The doctor says ultimately the therapeutic balance emphasis should be in the psychosocial domain and in particular vocational rehabilitation and retraining so he can reenter the work force.
The respondent notes Dr Siu recommends a bone scan and a clinical psychologist. There is no report in evidence from a clinical psychologist the respondent submits. There is a concern about opioids and you will see that in the rest of the material.
Dr Siu also recommends that the applicant see a physiotherapist for assessment and formulation of a graded exercise program. Again, there is no evidence of a physiotherapist having seen the applicant at this time in 2020 and there is no evidence of the formulation of a plan.
Dr Siu recommends four sessions of physiotherapy in the first instance and two further sessions for review to ensure the homework is being performed correctly.
The respondent says there is no reference to physiotherapy after Dr Siu’s report in the applicant’s statement, by way of a report from a physiotherapist, and noting the List of Payments starts in 2019 before Dr Siu’s report.
The respondent says that after Dr Clarke’s report there seems to be a gap of a year or a half before the applicant is seen by Dr Lim.
Dr Lim says in November 2021 that the applicant has stopped physio due to COVID-19 but the respondent’s submission remains the same. Without records of the applicant seeing a physiotherapist or of payment made for that treatment the entry by Dr Lim is meaningless.
Dr Lim referred the applicant to Dr Singh. Dr Singh in his first report reviews the MRI which does not show any significant pathology that would explain the symptoms. The doctor decides to do a nuclear bone scan to see if there is some hidden pathology that has not yet come to the surface.
On 31 May 2022 Dr Singh reports on the bone scan saying it does not show a great deal of pathology. There is the tracer in the facet joints as the applicant submits, but it is unclear what that means. There is no neurological impingement and treatment should be conservative at this time, with no clear surgical targets.
Dr Singh recommends that the applicant see a pain specialist. There is no evidence that the applicant in fact saw pain specialist, and if so there are no records or report of what was found.
On 1 July 2022 Dr Singh wrote to Dr Lim to say there is ongoing pain and he is arranging for him to trial facet joint blocks in the lumbar spine.
The next report is dated 18 November 2022, about four years post the applicant’s injury, and the respondent’s submission is that there is no real explanation for why the applicant is getting this pain.
In respect of the facet joint blocks the respondent’s submission is that they have not given a better idea of the pain generator as it is only during the period of the local anaesthetic that there is no pain.
In the respondent’s submission the applicant’s symptoms do not match up with the imaging, and this is said by the same doctor who wants to perform very extensive surgery, from the anterior aspect and then again from the posterior aspect.
Dr Singh again says the applicant should see a pain specialist and refers him to
Dr Cartwright for RFA. The respondent says that the applicant has certainly not seen a pain specialist.
Dr Singh reports that the pain specialist in Armidale cannot see him for four months so the respondent can only assume that pain specialist never saw the applicant, and notes this is not referred to in the respondent’s List of Payments.
Dr Singh himself does the RFA on 26 July 2023.
Dr Singh in his report of 22 October 2023 discusses the treatment options including physiotherapy and there is no evidence the applicant had physiotherapy after the ablation.
The second ablation procedure did not result in any pain relief even in the anaesthetic phase. These are the same two levels to doctor is planning carry out fairly extensive operations on, operations that Dr Nair says not even a quorum of spinal surgeons would recommend.
The respondent submits the scans still show mild disc bulging at L5/S1, as they did some time ago. Dr Singh acknowledges there is not a great deal of pathology on the scans and one must wonder why this doctor is then recommending very serious surgery.
In Dr Singh’s report of December 2023 he says the request for surgery has been denied and the applicant will continue with physiotherapy. The respondent again makes the submission that the applicant has not had any physiotherapy.
The respondent also submits that the applicant has not had pain management. The insurer has not paid for it and there are no records of that treatment in evidence.
The opinions of Dr Singh and Dr Khong are not provided in a fair climate as they have assumed the applicant has been having ongoing physiotherapy treatment, and particularly more recently.
Both doctors also seem to be of the view that the applicant has had pain management treatment which he is also not having.
For that reason the respondent’s submission is that their opinions cannot be relied on or accepted as they are not formed in a fair climate.
Dr Singh’s report of 7 March 2024 followed his last consultation with the applicant on
21 December 2023. Commenting on Dr Nair’s opinion that surgery is not reasonably necessary he discusses treatment options including exercises and pain management which the respondent submits he has not had, activity modification and pain psychology. The respondent notes there is no report from a pain psychologist.
Dr Singh referred the applicant to Dr Deshpande, a pain specialist, asking for his input and there is no evidence of that input.
Dr Singh says the applicant has trialled all other methods of treatment, but the respondent asks where the evidence of that is.
The doctor’s opinion is that surgery is therefore reasonably necessary based on the failure of conservative treatment. The respondent says that should not be accepted as the applicant has not undergone the usual suite of conservative treatment such as physiotherapy and pain management treatment.
The respondent’s submission is that Dr Singh in effect throws his hands up and says as a treating doctor he is in a quandary, but Dr Singh thinks he has been having physiotherapy and he has not, there is no evidence of more than a plan.
Dr Khong’s report of 3 April 2024 is the most recent. The history he records is that the applicant started physiotherapy. The doctor says the surgery could be considered reasonably necessary and he does not say that it is reasonably necessary at this point.
Dr Khong says the applicant has failed all conservative treatment but he does not know about physiotherapy, pain management or psychological counselling, or any rehabilitation, and the respondent’s submission is that there is no evidence of any of those matters.
Dr Khong agrees with Dr Nair that the results of the fusion will be unpredictable, but he does not agree that there is no role for surgery.
The respondent submits very little weight should be given to the opinions of Dr Singh and
Dr Khong because they are not made in a fair climate.
The respondent referred to the request for cotinine testing prior to surgery. Dr Singh will not do the surgery if the applicant is still smoking and Dr Nair and Dr Khong both record that he smokes.
The applicant submits Dr Nair has not suggested what surgery may be reasonably necessary, however in the respondent’s submission that is not his job. Dr Nair considered whether the surgery proposed is reasonably necessary and he does not believe it is. His reasons are set out in his report.
The history set out in Dr Hopcroft’s report of 22 September 2021 includes that the applicant commenced a physiotherapy program in Nambucca Heads but attended only once as it aggravated his pain significantly.

Applicant’s submissions in reply

The applicant submits that he did have physiotherapy. That is what he told his doctors and he never claimed he had extensive physiotherapy. That is consistent with the histories he gave the applicant submits and therefore the climate is not unfair in relation to what the doctors were told.
Dr Singh and Dr Khong received a history that there had been physiotherapy, and we now have an explanation about why it was brief, as it aggravated his pain significantly. The applicant submits the respondent’s submission that physiotherapy was not adequate is not available as with that history it would have been unreasonable to continue.
The applicant’s submission is that Dr Clarke’s reference to physiotherapy sessions is consistent with what the applicant says, and these were earlier than the List of Payments. There are several contemporaneous references to the applicant having attended for physiotherapy.
A submission was made by the respondent that the radiology does not explain the pain. Those doctor’s opinions were well before the nerve blocks and the RFA which shed further light on the reason for the pain.

Dr Siu’s opinion that the mainstay of treatment would be non-operative was expressed in 2020 and the applicant notes Dr Singh also expressed that opinion when he first saw the applicant.
The applicant had many sessions of psychological counselling noted in the records of Workers Doctors. He was treated for anxiety and he was recently reviewed by a psychiatrist.
With regard to smoking, the applicant submits that we do not know if he is still smoking but we know if he is Dr Singh will not operate.
With regard to pain management, there is evidence in the records of Workers Doctors that the applicant has had pain management and Dr Mo is also providing that.
The applicant submits that the inference can be drawn that Dr Singh would have been satisfied there had been an adequate level of pain management before he recommended surgery.
Dr Nair does not say in forming his opinion that the level of pain management is in issue. The doctor puts the whole argument on a different basis, referred to in the s 78 notice, and not on the basis of the argument put by the respondent.

Respondent’s further submissions

The respondent notes Dr Mo is a general practitioner and not a pain management specialist.

FINDINGS AND REASONS

The matter to be determined is whether the surgery proposed by Dr Singh is reasonably necessary as a result of injury pursuant to s 60 of the 1987 Act.
Section 60(1) of the 1987 Act relevantly provides:
“Compensation for cost of medical or hospital treatment and rehabilitation etc
(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).”
“Reasonably necessary” is not defined in the 1987 Act. The standard test adopted to determine whether treatment is reasonably necessary is stated by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC2; (1986) 2 NSWCCR 32 (Rose).
In Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) at [88] DP Roche set out the relevant matters according to the criteria of reasonableness noted by Burke CCJ in Rose as including, but not necessarily being limited to, the following;
(a)    the appropriateness of the particular treatment;
(b)    the availability of alternative treatment, and its potential effectiveness;
(c)    the cost of the treatment;
(d)    the actual or potential effectiveness of the treatment, and
(e)    the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
DP Roche added in relation to point (d) that while the effectiveness of treatment is relevant to whether the treatment is reasonably necessary, it is not determinative and each case will depend on its facts.[5] He described the above matters as “useful heads of consideration” although the essential question remains whether the treatment is reasonably necessary.[6]
[5] Diab v NRMA Ltd [2014] NSWWCCPD 72 at [89].
[6] Diab v NRMA Ltd [2014] NSWWCCPD 72 at [90].
The applicant bears the onus of proof to establish on the balance of probabilities that the surgery proposed by Dr Singh is reasonably necessary.[7]
[7] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
The respondent submits that the opinions of Dr Singh and Dr Khong in support of the proposed surgery being reasonably necessary have not been provided in a ‘fair climate’ as the extent of the applicant’s physiotherapy, pain management and psychological counselling treatment was not properly understood by them.
The High Court said in Paric v John Holland (Constructions) Pty Limited [1985] HCA 58 (Paric No. 2);
“It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v. Watson[1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels J.A. in the Court of Appeal (Wigmore on Evidence, (1940) 3rd ed., vol.II, 680, p.800; 2 Wigmore, Evidence 680 (Chadbourn rev. 1979), p.942) to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.”[8]
[8] Paric v John Holland (Constructions) Pty Limited [1985] HCA 58 (Paric No. 2) at [9].
Beazley JA (as she then was) confirmed in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399 in the context of the Commission, and still applicable following the introduction of the Personal Injury Commission Act 2020, that while an expert’s report needs to conform with the usual requirements of expert evidence; “[a]s the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report”.[9]
[9] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399 at [82] – [83].
Having carefully considered the evidence I reject the respondent’s submission that the opinions of Dr Singh and Dr Khong have not been provided in a ‘fair climate’.
The applicant’s evidence in his statement of 17 April 2024 is “I have tried physiotherapy and pain management including medication, specific treatment with a pain specialist and injections”.[10]
[10] ARD page 13.
First with regard to psychological counselling I note Dr Khong in his report does not refer to psychological counselling as a treatment provided to the applicant.[11]
[11] ARD page 39.
On 13 February 2023 Dr Singh in response to a question from the insurer says “I have not evaluated his psychological symptoms. Please refer to his GP.” [12] The doctor does not include this in his list of treatment options for ongoing back pain from lumbar disease in his report of 22 October 2023 however I note in his report of 7 March 2023 he refers to pain psychology as one of five listed treatment options.[13]
[12] ARD page 60.
[13] ARD page 72.
Dr Clarke, anaesthetist and pain specialist, in his report of 29 May 2020 says “[n]o input from a Clinical Psychologist as yet - this was interrupted by the current virus pandemic.”[14] The doctor also notes there is no clinical psychologist at Inverell with experience in dealing with pain.[15]
[14] ARD page 46.
[15] ARD page 48.
The applicant says in his statement of 17 March 2022 that at one stage he believes the insurer arranged a one-off appointment with Penny Kempton, psychologist, in Guyra and that he has had regular telehealth sessions with Kathy, a psychologist at Workers Doctors.[16]
[16] ARD page 7.
There is evidence the applicant received regular psychological counselling after he began consulting Workers Doctors on 9 November 2021. Their records include for example 15 consultations with a psychologist between 14 December 2021 and 20 December 2022. These consultations then continued less frequently in 2023 and 2024 according to the respondent’s List of Payments.
On 17 April 2024 the applicant’s evidence is that he continues to actively seek treatment including from Mr Carl Nielsen, psychologist, at Insightful Mind.[17]
[17] ARD page 13.
With regard to pain management, Dr Singh comments;
(a) on 31 May 2022 “[a]t this point in time, treatment should be conservative. There are no clear surgical targets. I recommend that he see a pain specialist as he is likely to require pain intervention techniques such as facet joint blocks and radiofrequency ablation”;[18]
(b) on 1 July 22 “he has ongoing pain and I’m arranging for him to trial facet joint blocks in the lumbar spine”,[19] and
(c) on 18 January 2022 after the facet joint blocks “[s]hould his pain return, the next step would be to have radiofrequency ablation of the facet joints”.[20]
[18] ARD page 56.
[19] ARD page 57.
[20] ARD page 58.
On 11 May 2023 when the applicant and his family travelled from Armidale to see the doctor in Taree,“[h]e should also see an interventional pain specialist and I have referred him to
Dr Cartwright for radiofrequency ablation of the facet joints as he has had some response to a facet block”:[21]
(a)    on 25 May 2023 “[u]nfortunately the pain specialist in Armidale cannot see him for 4 months. I have recommended that he trial radiofrequency ablation to the lower facet joints to help manage his pain. He is happy to have returned to Sydney”;[22]
(b)    on 29 September 2023 he requests input from Dr Sushama Deshpande “before we consider lumbar fusion”;[23]
(c)    on 22 October 2023 the applicant trialled conservative treatment and is not really responding;
(d)    on 21 December 2023“[h]e will continue with physiotherapy and exercises, and with pain management”,[24] and
(e)    on 7 March 2024 the applicant has “trialled multiple conservative treatments options with no lasting benefit” and “[h]e has trialled pain management programs, and continues to take high doses of opioids for his pain”.[25]
[21] ARD page 62.
[22] ARD page 63.
[23] Reply page 15.
[24] ARD page 70.
[25] ARD pages 71-72.
It appears from the above that when referring to pain management Dr Singh is referring to facet joint blocks and RFA.
Facet joint blocks were carried out and Dr Singh then carried out the RFA surgery himself in the absence of a pain specialist being available.
This view is supported by Dr Khong’s report of 3 April 2024 where says the applicant;
“saw Dr Bhisham Singh. He had bilateral LS/Sl facet joint injections on 18/7/22 and a left L4/5 facet joint injection on 6/10/22. These helped around 40% of his pain for 2 weeks. He had bilateral L4/5 facet joint injections on 17/4/23. He went on to have radiofrequency ablation of the L4/5 and LS/Sl facet joints on 26/7/23. This helped around 50% of his pain for 1 month before a return in his pain.”[26]
[26] ARD page 38.
Dr Khong says the applicant “has seen a pain specialist as well. He was previously on Targin but now takes Panadol and Nurofen for pain”.[27] I understand this to be a reference to
[27] ARD page 38.
Dr Clarke, pain specialist, consulted by the applicant in Coffs Harbour.
With regard to physiotherapy, the applicant says in his statement of 17 April 2024 that he has tried physiotherapy.[28] This is supported by the evidence.
[28] ARD page 13.
As the respondent noted, on 29 July 2019 when Dr Kumar, general practitioner in Nambucca, in a referral to a physiotherapist says “but no physio has been commenced.”[29]
[29] ARD page 42.
Dr Hopcroft comments on 22 September 2021 that after the applicant moved to Nambucca in 2019 and consulted Dr Kumar he “was commenced on a physiotherapy program at Nambucca Heads but attended only once as the program aggravated his pain significantly”.[30]
[30] Reply page 12.
Dr Siu, neurosurgeon, says on 14 February 2020 “[h]e has had some physiotherapy and has been on Targin, though the pain has remained non-remitting”.[31]
[31] ARD page 43.
Dr Clarke, anaesthetist and pain specialist, says on 29 May 2020 “[p]hysio - apparently had minimal input - two sessions apparently (not tried TENS, acupuncture, massage)”.[32]
[32] ARD page 46.
Dr Khong includes in his report of 3 April 2024 under the heading “General history” that the applicant “started physiotherapy”.[33] This accords with the note made by Dr Mo on
[33] ARD page 38.
[34] ARD page 389.
14 January 2022 that the applicant had trialled physiotherapy.[34]
Under the heading “clinical history” Dr Khong includes physiotherapy as one of the nine treatments listed. Later in his report he comments “[h]e has maximised all non-operative management options including analgesia, physiotherapy, steroid injections and radiofrequency ablation”.[35]
[35] ARD page 41.
Dr Clarke in 2020 recommended up to six sessions of physiotherapy, the applicant’s general practitioners at Workers Doctors recommended the applicant undertake a physiotherapy program, and Dr Singh also later refers to physiotherapy.
As the applicant submitted, Dr Singh has not made a specific referral for the applicant to have physiotherapy treatment before recommending the proposed surgery. In his report of 17 August 2023 Dr Singh refers to the applicant continuing his self-managed exercise programme.[36]
[36] ARD page 66.
However in December 2023 Dr Singh says the applicant will continue with physiotherapy.
The evidence supports that the applicant tried physiotherapy in 2019 or 2020, stopped when it aggravated his pain and he has not had physiotherapy treatment since that time.
Samuels JA in Paric v John Holand (Constructions) Pty Limited [1984] 2 NSWLR 505 (Paric No. 1) said;
“It is a question of whether the hypothetical material put to the expert witness represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.”[37]
[37] Paric v John Holand (Constructions) Pty Limited [1984] 2 NSWLR 505 (Paric No. 1) at 509 – 510.
Based on the evidence I do not accept that the opinions of Dr Singh and Dr Khong have been formed in an unfair climate. As it was framed in Paric No. 2, while the facts do not correspond with complete precision to the proposition on which the opinions are based, in my view the case supported is sufficiently like the one under consideration.
The question of the extent of physiotherapy treatment received by the applicant does not detract from the weight I intend to give to the opinions of Dr Singh and Dr Khong.
The respondent next submits there is no satisfactory explanation for the applicant’s pain in light of the investigations.
Dr Clarke comments in 2020 “[t]he imaging has not been helpful in identifying an obvious cause but this does not mean he does not have pain. Pain occurs in the context of pre-morbid anxiety exacerbated by an adversarial relationship which developed between him and his employer.”[38] The doctor considered at that time the applicant should see a clinical psychologist about his pain, which has since occurred.
[38] ARD page 48.
Dr Singh acknowledged on 11 May 2023 that the applicant’s symptoms did not match up with the imaging, which was at that time more than two years old. The MRI scan from 2021 showed some disc bulging at L5/S1 and he feared this had progressed.
The MRI dated 26 June 2023 concludes “[l]umbar spondylosis with facet joint arthropathy bilaterally at L4/5 and L5/S1” with no canal stenosis or neuroforaminal exit narrowing.[39]
[39] ARD page 86.
On 22 October 2022 Dr Singh notes again that the applicant does not have much pathology on the MRI scans but he has ongoing pain.
Dr Singh agrees the applicant’s symptoms do not match up with the imaging, however following the facet joint blocks and RFA surgery he notes the pain has returned, conservative treatment has been unsuccessful and surgery is the option available to improve symptoms.
As the applicant submits, while the imaging does not explain the pain, the facet joint blocks and RFA then shed further light on the pain generators.
Dr Singh has treated the applicant for more than two years, he is aware of the applicant’s treatment history, he has considered the investigations, arranged for facet joint blocks and RFA surgery and in October 2023 he recommends surgery.
Dr Singh as the applicant’s treating orthopaedic surgeon is best placed to provide his opinion on the appropriate treatment course. In my view his opinion on the proposed surgery carries significant weight.
This opinion is supported by Dr Khong.
Dr Khong describes the applicant’s MRI as demonstrating;
“no significant degenerative disc disease. His bone scan reports some low grade arthropathy at the L4/5 facet joints bilaterally and at the left LS/S1 facet joint. Mr McLeod reports transient benefit from L4/5 and LS/S1 facet joint injections and radiofrequency ablations. A fusion at LS/S1 +/- L4/5 could be considered reasonably necessary at this point.”[40]
[40] ARD page 40.
Dr Khong agrees the applicant has failed all non-operative management options and he is unlikely to improve without surgery. He notes the applicant has complained of severe and persistent lower back pain for over five years.
Dr Nair saw the applicant in Armidale on 12 October 2023 in order to assess his permanent impairment. He notes the medical imaging shows no neurocompressive lesion, mild facet arthropathy at L4/5 and L5/S1 with well hydrated intervertebral discs. He notes the facet joint blocks and RFA did not help and his conclusion is that the applicant has axial lower back pain following a work related injury.
In answering the question put to him of whether the applicant has reached maximum medical improvement he say “[y]es he has. There is no further predictable treatment. Surgery is certainly not indicated.”[41]
[41] Reply page 3.
In his supplementary report of 1 December 2023 Dr Nair provides his opinion on the proposed surgery. The doctor describes it as highly unpredictable in nature. The radiology revealed the applicant had tall and well hydrated lumbar motion segments with no acute Modic changes. Dr Nair says he would certainly not offer that permutation of surgery as the clinical features and the pathoanatomy in his opinion do not warrant it.
The reasoning for the doctor’s opinion that the surgery is not reasonably necessary in the applicant’s circumstances are not fully set out in his report.
Whether the proposed surgery is highly unpredictable in nature is a factor for the applicant to consider when deciding whether to go ahead with it, as the doctor says. Dr Khong agrees the results of the fusion will be unpredictable but does not agree there is no role for surgery.
I agree with the submission that the basis for Dr Nair’s opinion that the proposed surgery would not be offered by a quorum of spinal surgeons, including members of the Spine Society of Australia, is not provided.
I prefer the opinions of Dr Singh and Dr Khong on whether the proposed surgery is reasonably necessary to that of Dr Nair in the absence of an explanation for his opinion that it is not.
Regarding the appropriateness of the proposed surgery, the first of the criteria discussed in Diab, Dr Singh says this is the only surgery he can offer with the hope that there may be improvement in the applicant’s symptoms by 50 to 60%.[42]
[42] ARD page 72.
The evidence is that the alternative treatment of non-operative measures has been trialled unsuccessfully and has provided only short term relief.
I note the cost of the proposed surgery has not been raised as an issue in this case.
The potential effectiveness of the treatment is difficult to predict as discussed above. The aim of the proposed surgery is to alleviate the symptoms of pain from the applicant’s lumbar spine condition. Dr Singh notes he has explained to the applicant that the surgery may not improve his back pain. Dr Khong says “[t]here is a chance that fusion may help with a proportion of his lower back pain.”[43]
[43] ARD page 41.
As discussed by Roche DP in Diab, while the effectiveness of treatment is relevant to whether the treatment is reasonably necessary, it is not determinative and each case will depend on its facts. The proposed surgery is the only option proposed to attempt to alleviate the applicant’s lumbar pain.
Acceptance of the treatment modality is an issue clearly raised by Dr Nair. However as there is no explanation for his opinion that a quorum of spinal surgeons would not offer the proposed surgery and with two contrasting expert opinions in evidence I place less weight on Dr Nair’s opinion on this issue.
Taking into account all of the evidence and having considered the criteria in Rose and Diab I find on the balance of probabilities the surgery proposed by Dr Singh is reasonably necessary medical treatment for the applicant’s lumbar spine injury pursuant to s 60 of the 1987 Act.

SUMMARY

The L5/S1 anterior lumbar interbody fusion and L5/S1 posterior decompression and fusion surgery proposed by Dr Singh on 22 October 2023 is reasonably necessary medical treatment within the meaning of s 60 of the 1987 Act.
There will be an award for the applicant pursuant to s 60 of the 1987 Act for payment of the proposed medical, hospital and related treatment expenses at the gazetted rates.
The order is set out in the Certificate of Determination.

[2024] NSWPIC 343

26 June 2024