Motamednejad v GVK NSW Reo Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Motamednejad v GVK NSW Reo Pty Ltd [2023] NSWPIC 203
APPLICANT:	Majid Montamednejad
RESPONDENT:	GVK NSW Reo Pty Ltd
Member:	Anne Gracie
DATE OF DECISION:	4 May 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for treatment expenses pursuant to section 60; respondent disputes treatment reasonably necessary for posterior interbody fusion at L4/5 and L5/S1 and respondent disputes injury to lumbar spine; consideration of applicant’s statements, medical reports and other treatment records, claim correspondence and factual material; consideration of whether the surgery proposed is reasonably necessary medical treatment as a result of the left knee injury; Rose v Health Commission (NSW), Diab v NRMA Limited, Murphy v Allity Management Services Pty Limited, Allianz Australia Workers Compensation (NSW) Pty Limited v Qummou, Australian Conveyor Engineering v Mecha Engineering Pty Limited, Briginshaw v Briginshaw, Kooragang Cement Pty Ltd v Bates, Zickar v MGH Plastic Industries Pty Ltd, North Coast Area Health Service v Felstead and Nguyen v Cosmopolitan Homes (NSW) Pty Limited considered; Held – the surgery proposed for the applicant is reasonably necessary medical treatment as a result of a lumbar spine injury which arose out of or in the course of the applicant’s employment on 27 September 2017; respondent ordered to pay for the costs of and incidental to the surgery pursuant to section 60.
determinations made:	The Commission determines: 1. Pursuant to s 4(a) and s 9A of the Workers Compensation Act 1987 (the Act) the applicant sustained an injury to his lumbar spine on 27 September 2017 during the course of his employment with the respondent. 2. The surgery proposed for the applicant by Associate Professor Ghahreman (a posterior decompression and a posterior interbody fusion at L4/5 and L5/S1) as referred to in his report of 22 October 2021, is a reasonably necessary medical treatment as result of the injury to the applicant on 27 September 2017 pursuant to s 60 of the Act. The Commission orders: 3. The respondent is to pay the costs of and incidental to the surgery (a posterior decompression and a posterior interbody fusion at L4/5 and L5/S1 proposed by Associate Professor Ghahreman in his report of the 22 October 2021 pursuant to s 60 of the Act and in accordance with the workers compensation gazetted rates.

BACKGROUND

Majid Montamednejad (the applicant) is 37-years-old. He was born in Iran in 1986. He migrated to Australia in 2013. The applicant was employed with GVK NSW Reo Pty Ltd (the respondent). He commenced employment with the respondent on 24 February 2017.
In the Application to Resolve a Dispute (ARD) an injury is pleaded, 27 September 2017 and the type of injury is a personal injury.
The injury description/cause of injury is pleaded as follows:
“On 26 September 2017, at approximately 2:30pm, the Claimant was carrying one part of a steel bar which was to be used to support a column.
As the Claimant was walking with the steel bar in his hand, he stepped with his right foot onto a plywood, which was on a lower platform, and he slipped and fell onto his back. The Claimant had some mild pain in his right ankle and lower back. The Claimant continued to work for the remainder of the day, which was for several hours. The Claimant felt the pain in his right ankle when walking. He did not carry as many steel bars for the rest of the day and focused on cutting and bending bars. He did not report the incident and he hoped that the pain in his ankle and back would settle overnight.
The Claimant applied ice and a bandage to his ankle and rested for the remainder of the night.
The following morning, he attended the worksite. His symptoms had slightly improved with rest, but he could still feel some pain, particularly in his right ankle. At approximately 8:00am, the Claimant was carrying a steel bar in each hand. He was walking along a beam to get from one part of the site to another. Suddenly, he twisted his right ankle to the left and then to the right, which caused him to slip and fall on his back.”
The claim for compensation in these proceedings is confined to the cost of the posterior decompression and posterior interbody fusion at L4/5 and L5/S1 and the associated treatment costs recommended to the applicant by his treating neurosurgeon and spine surgeon, Associate Professor Ghahreman.
The respondent disputes that the applicant has sustained an injury to his lumbar spine on 27 September 2017 and whether the treatment is reasonably necessary treatment pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).

ISSUES FOR DETERMINATION

The parties agreed that the following issues are in dispute:
(a)    did the applicant suffer a back injury on 27 September 2017;
(b)    if so, what was the back injury that was suffered, and
(c)    is the proposed surgery reasonably necessary as a consequence of that injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 19 April 2023.
Mr Jarryd Malouf, counsel instructed by Mr Norman Ayoub solicitor and Mr Daniel Damevski law clerk appeared for the applicant Mr Montamednejad who was present with a Persian Farsi interpreter. Mr Andrew Joseph, counsel instructed by Ms Katelyn Cant solicitor and Mr Neil Bennett from GIO appeared for the respondent.
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.

DOCUMENTARY EVIDENCE

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.

ORAL EVIDENCE

There was no oral evidence called at the arbitration. Both counsel made oral submissions which were sound recorded and a copy of the recording is available to the parties

APPLICANT’S EVIDENCE

The applicant has provided a statement dated 23rd January 2023 (page 1 of the ARD). According to the statement, the applicant migrated to Australia in 2013. Of relevance is that he can speak Farsi but barely speaks English.
He states that he had no prior injuries or conditions apart from a dislocated shoulder in 2000, a fracture to the right hand in 2014 and an injury to the left knee in 2015.
He commenced employment with the respondent as a steel fixer on 24 February 2017. It was a heavy job. He provides the following history in relation to his injury:
“9.     On 26 September 2017, at approximately 2:30pm, I was carrying one part of a steel bar which was to be used to support a column. As I was walking with the steel bar in my hand, I stepped with my right foot onto a plywood, which was on a lower platform, and I slipped and fell onto my back. I had some mild pain in my right ankle and lower back. I continued to work for the remainder the day, which was for several hours. I felt the pain in my right ankle when walking. I did not carry as many steel bars for the rest of the day and focused on cutting and bending bars. I did not report the incident and I hoped that the pain in my ankle and back would settle overnight.
10.    I applied ice and a bandage to my ankle and rested for the remainder of the night.
11.    The following morning, I attended the work site. My symptoms had slightly improved with rest, but I could still feel some pain, particularly in my right ankle. At approximately 8:00 am, I was carrying a steel bar in each hand. I was walking along a beam to get from one part of the site to another. Suddenly, I twisted my right ankle to the left and then to the right, which caused me to slip and fall on my back. I heard a pop in my ankle. I felt that the pain in my right ankle and back had worsened since the day before. After several minutes, my boss Mal, and another worker came to me. They stood in front of me as if they were not sure what to do.”
The applicant was advised to sit down and rest. He was distressed. He told Mal that he wanted to go to Randwick Hospital as he was very concerned about the pain in his ankle and his back. Randwick Hospital was less than one kilometre from the worksite. Rather than going to Randwick Hospital his boss Mal and another worker Mohsen took him to the Immex Green Square Medical Practice located at Waterloo where he was seen by Dr Kyriazis.
He states that as he does not speak English, Mohsen was communicating with Dr Kyriazis. Dr Kyriazis asked him to stand up and he states he had difficulty doing this due to his ankle pain and back pain. He was referred for an X-ray of his right ankle. He asked Dr Kyriazis if he could be referred for a scan of his back. He states that he was told by Dr Kyriazis that he would assess him the following week. The applicant advised Mal that he did not want to continue to see Dr Kyriazis but Mal advised him that he was not allowed to see another doctor. Mal advised him that he was only able to see the employer’s doctor.
He continued to see Dr Kyriazis and, on each occasion, he was accompanied by his superior at work, Ray. He still had significant pain in his right ankle and back. He advised that on each subsequent visit Dr Kyriazis did not assess or examine his injuries.
He last attended Dr Kyriazis on 27 October 2017. At the last attendance he was found to be fit for pre-injury duties involving a trial of normal duties. Up until this time Dr Kyriazis had certified him fit for light duties involving usual hours but limited bending, twisting, no carrying, seated duties. He had been performing office duties which were limited due to his inability to speak English.
On 31 October 2017 his employment was terminated by the respondent. He did not receive any notice or reason for his termination. He tried to contact his employer. He attempted to book an appointment with Dr Kyriazis on 14 November 2017 He was told that Dr Kyriazis did not want to see him.
In November 2017 he sought assistance from his union and was advised that he could make a claim for his injuries under the workers compensation scheme. He had difficulty finding out who the workers compensation insurance company was for his employer.
On 15 November 2017 he consulted Dr Lim. He provided Dr Lim with the following history of how he sustained his injuries at work (page 208 of the ARD):
“On Wednesday, 27 September 2017 Mr Montamednejad reported that whilst at work he suffered a R ankle and back injury due to slipping and falling off a steel beam at the workplace.
From my understanding of the injured worker’s role as a Steel Fixer, it would be reasonable to conclude that the mechanism of injury was the direct result of performing those specified tasks. The history given is consistent with employment being the main contributing factor to the injury. I do not have medical evidence to indicate an alternative mechanism of injury but would be happy to consider such evidence if provided to me.”
Dr Lim referred him for an MRI scan of his right ankle and lower back. He states at that time he was having persisting pain radiating from his lower back into his right buttock and right leg. The applicant undertook the imaging and after inspecting the imaging Dr Lim referred him to see orthopaedic specialist Dr Gehr, who he saw on 15 December 2017. He was also referred to physiotherapy for his back.
He states his back pain persisted and he started to experience a numbness down his right leg with pin like pain. He states he was prescribed Panadeine Forte and referred for a second opinion to Dr Singh. Dr Singh referred him for a lower back X-ray and a steroid injection. Dr Singh did not recommend surgery but referred him to see Dr Manohar for pain management.
He states he continued with physiotherapy and hydrotherapy. Dr Lim referred him for a steroid injection to his low back and right ankle.
On 19 May 2018 he was admitted to Liverpool Hospital with severe back pain, and he was prescribed pain killing medication. He was also advised to continue physiotherapy. The clinical notes from Liverpool Hospital (on page 266 of the ARD) note a diagnosis of sciatica. The Summary of Progress records “patient presented with a 9/12 history of lower lumbar back pain following a fall”.
He states Dr Lim referred him for further physiotherapy and he undertook six to seven sessions of acupuncture. The pain in his back continued. He was referred by Dr Singh (page 159 of the ARD) for a further MRI of his lower back at his own expense which was performed on 30 October 2018.
He last saw Dr Lim on 13 December 2018 (page 150 of the ARD). He then consulted a Persian speaking general practitioner, Dr Ebrahimi in December 2018. His back pain continued, and Dr Ebrahimi referred him to see Dr Papadimitriou. Dr Ebrahimi’s notes record his first visit on 10 December 2018 (page 103 of the ARD). He provided Dr Ebrahimi with the following history “last year at work twisted ankle on the [sic] piece of wood and twisted his right ankle on a piece of steel and fell over and had back pain” (page 208 of the ARD).
Dr Ebrahimi’s clinical notes record an ongoing history of back pain up to his last recorded attendance with Dr Ebrahimi on the 20 January 2020.
The applicant states that Dr Papadimitriou advised him that he was a possible candidate for lower back surgery. At that time however he states he was fearful about the idea of having surgery to his spine. He was becoming increasingly depressed about his situation and Dr Ebrahimi prescribed Endep and referred the applicant to see a psychologist.
The applicant states that while he was seeing Dr Lim and Dr Ebrahimi, he was also consulting Dr Ang at Better Health Care. On the applicant’s first attendance with Dr Ang on 20 May 2018 (page 71 of the ARD), Dr Ang takes the following history:
“nine months of low back pain following a fall…slipped and fell backwards landing on his back”.
He attended Dr Ang between 20 May 2018 and 1 June 2021. During that time Dr Ang’s clinical notes provide a continuing history of low back pain and treatment.
During this period, he also presented at Ryde Hospital with lower back pain on 2nd February 2020 (page 264 of the ARD).
The applicant then commenced seeing Dr Darzilkolahi who had a practice near his home. He first saw Dr Darzilkolahi on 24 June 2021 (Page 222 of the ARD). On 10 July 2021 Dr Darzilkolahi referred the applicant to a pain management course for chronic physical pain mainly lower back pain. The applicant was advised by Dr Darzilkolahi on 23 October 2021 that he did not do workers compensation cases (page 225 of the ARD).
On 29 September 2021 he consulted with Associate Professor Ghahreman who took a history from the applicant as follows “the patient presents with severe low back pain, pain and paraesthesia in both lower limbs since work related injury as a steel fixer. He reports losing balance whilst carrying heavy objects at work and also had a fall in 2017”. Associate Professor Ghahreman ordered a repeat MRI scan of the lumbar spine and CT Spect (page 248 of the ARD).
On 22nd October 2021 he was reviewed by Associate Professor Ghahreman after the applicant undertook the diagnostic studies. At that appointment, Associate Professor Ghahramen proposed surgical treatment in the form of a posterior decompression and posterior interbody fusion at L4/5 and L5/S1 (page 247 of the ARD).
The applicant accepted Associate Professor Ghahramen’s advice and informed him that he wished to proceed with surgery.
On page 8 of the ARD the applicant outlines his significant ongoing symptoms from his injuries.
The applicant also relies on a copy of his workers injury claim form (page 321 of the ARD). The claim form was signed by him on 15 November 2017. The claim form records the date of injury as 27 September 2017 and the description of injury/condition as right ankle and back. The Applicant provides the following history of injury on the claim form “was walking on a steel beam when my right ankle twisted”. He states he reported the injury to his employer on 27 September 2017 and first noticed the injury/condition on 27 September 2017. He also nominates a witness to his injury Mehdi and provides a mobile phone number for Mehdi.

APPLICANT’S MEDICAL EVIDENCE

The first doctor the applicant saw immediately following the accident was Dr Kyriazis. Dr Kyriazis’ clinical notes commence at page 241 of the ARD. The clinical notes confirm the attendance on the 27 September 2017 at 9:02 AM. Dr Kyriazis notes “poor English co-worker translating. at work today, on steel beams wearing boots, twisted ankle” The applicant was in apparent distress. Dr Kyriazis referred the applicant for an X-ray of the right ankle. There is no mention of the lower back. Dr Kyriazis did not arrange an X-ray of the lower back. The applicant was prescribed Nurofen plus and physiotherapy.
At a follow up attendance on 29 September 2017 Dr Kyriazis records that he had a long discussion with the applicant. There is a reference that the applicant requested an MRI however it is not clear if this was for his right ankle or lower back.
The applicant’s last appointment with Dr Kyriazis was on 27 October 2017. At that consultation Dr Kyriazis suggested a trial of preinjury duties.
On close study of the clinical notes there is no reference to the applicant's lower back. Dr Kyriazis did not include a reference to a back injury in any of the certificates of capacity that he provided to the applicant. The certificates of capacity issued to the applicant by Dr Kyriazis were not signed by the applicant (pages 65-83 of the Reply).
Following the appointment, the applicant’s employment with the respondent was terminated on 31 October 2017. No reason for the termination was given by the respondent.
On 15 November 2017 the applicant commenced seeing Dr Lim as his treating doctor. Dr Lim’s clinical notes can be found at page 151 of the ARD.
Dr Lim provided the applicant with a referral for an MRI scan of the back and right ankle and recommended physiotherapy and suggested that he may need to see an orthopaedic surgeon.
On 29 November 2017 the applicant underwent an MRI scan of his right ankle (page 275 of the ARD) and of his lumbar spine. (Page 273 of the ARD.)
On the basis of the findings on the MRI scan of the lumbar spine Dr Lim referred the applicant to Dr Gehr.
Dr Gehr has produced a report dated 15 December 2017 (page 253 of the ARD). Dr Gehr takes the following history:
“On 27 9 2017, whilst at work he suffered a right ankle and back injury due to slipping and falling off a steel beam in the work place. The mechanism of injury would appear to be consistent with the injury as described.”
He also notes:
“Thanks for asking me to see this man with back injury and persistent pain right sided radiation. Also said to have aggravated his spondylolisthesis.”
Dr Gehr diagnosed a soft tissue injury, lower back pain with non radicular pain right leg. He recommended that the applicant continue with physiotherapy and anti-inflammatory medication for his lower back. He noted the MRI scan did not show any nerve compression.
The Applicant was then referred to see Dr Singh. Dr Singh has provided a report dated 16 February 2018 (page 251 of the ARD). Dr Singh records the following history:
“He is a steel fixer and welder, and on 27th September, 2017 he suffered an injury to the right ankle and back after he fell off a steel beam and hit his back. An MRI scan of the spine done in 2017 reports grade one anterolisthesis.”
Dr Singh recommended a standing X-ray of the lumbar spine to better assess his stability at his L5/S1 level.

The applicant underwent the X-ray on 16 February 2018. The X-ray noted a suggestion of arthritic change at L5/S1 with mild narrowing of the neural foramina. The clinical history that has been provided to the radiographer by Dr Singh is noted as L4/5 disc disease (page 272 of the ARD).
Between February 2018 and May 2018 the applicant continued with physiotherapy under the care of Mr Ryan Heuston (pages 153-210 of the ARD). Mr Houston had his practice at the same premises as Dr Lim. The applicant was also referred to psychologists Erin Carmody and Carl Nielsen (pages 153-191 of the ARD). The applicant was referred to the psychologists for stress, chronic pain and deep depression.
On 14 March 2018 the psychologist Erin Carmody observed that there were some language barriers present and requested an interpreter for follow up appointments (page 191 of the ARD).
The physiotherapist notes ongoing lumber back pain. (Page 206 of the ARD.) At his first consultation with the applicant on 20 November 2017 the physiotherapist notes:
“DOI: 27/09/2017
MOI: difficult to obtain; injured right leg and back
initially had pain medial and lateral R) ankle, recently developed pain in toes, right anterior knee and right glute pain and right lumbar paraspinal.”
On 19 May 2018 the applicant attended Liverpool Hospital due to an increase in back pain and was given pain killing medication and physiotherapy was recommended (page 266 of the ARD). Of relevance is the summary taken at Liverpool Hospital “patient has presented with a 9/12 history of lumbar back pain following a fall”.
On 30 October 2018, Dr Lim refers the applicant for a further MRI scan of his lower back in light of ongoing chronic lumbar spine pain.
The MRI scan of the lumbar spine dated 30 October 2018 records the following:
“Bilateral L5 pars defects with a grade 1 anterolisthesis of L5/S1. L4/5 posterior annular tear with a small right paracentral disc protrusion. No central canal stenosis, mild bilateral foraminal narrowing of L 4/5 without evidence of nerve compression”.
Following the MRI scan the applicant attended a Persian speaking doctor, Dr Ebrahimi. Her clinical notes can be found at page 95 of the ARD. The applicant first consulted Dr Ebrahimi on 10 December 2018. Dr Ebrahimi records the following history of injury:
“Last year at work twisted his ankle on the piece of wood and twisted his right ankle on a piece of steel and fell over and had back pain”.
On 13 December 2018 the applicant attended Dr Ebrahimi and provided her with the date of accident, 27 September 2017. Dr Ebrahimi notes severe pain in back. Dr Ebrahimi referred the applicant to an exercise physiologist, physiotherapy, hydrotherapy and prescribed medication.
On 20 August 2019 Dr Ebrahimi referred the applicant to Dr Papadimitriou.
In a mental health treatment plan dated 17 December 2019 (page 145 of the ARD) Dr Ebrahimi notes the applicant’s spoken language is Farsi. She further notes in answer to a question on the mental health treatment plan “how well does this person speak English?” Dr Ebrahimi responded, “not good”.
The applicant advises that he saw Dr Papadimitriou on 20 August 2019 however I do not have Dr Papadimitriou’s clinical notes nor a report from Dr Papadimitriou. I do however have an MRI scan of the lumbar spine addressed to Dr Papadimitriou dated 19 August 2019 (page 268 of the ARD). The MRI scan records:
“L5/S1 demonstrates no significant disc bulging, herniation or exit foraminal stenosis. There is bilateral minor facet joint atrophy”. “Right paracentral disc protrusion at L4-5 contacting the L5 nerve root in the lateral recess of the spinal canal”.
On 29 November 2019 the applicant attended Northern Sydney Local Health District and saw Dr Le who was the orthopaedic registrar for Dr Papadimitriou (page 150 of the ARD). Dr Le records “long standing lower back pain following injury 2-3 years ago. He has an MRI showing L4/5 paracentral disc protrusion and nerve root impingement. He reports right lower limb radiculopathy and ? candidate for surgery”.
Whilst under the care of Dr Lim and Dr Ebrahimi the applicant was also consulting Dr Ang. Dr Ang's clinical notes are reproduced at page 70 of the ARD. The applicant first consulted Dr Ang on 20 May 2018.
Dr Ang's clinical notes record treatment from 20 May 2018 to 1 June 2021. There are numerous episodes of severe lumbar back pain recorded in the clinical notes. Dr Ang referred the applicant for physiotherapy, prescribed pain relief, medication, suggested multidisciplinary care due to chronic condition, suggested aquatic therapy and exercise. The applicant advised Dr Ang on the 15th of October 2019 that he was scared and worried that he may need surgery for his lower back (page 81 of the ARD).
On 24 June 2021 the applicant came under the care of Dr Darzikolahi. Dr Darzikolahi’s clinical notes are reproduced at page 222 of the ARD. The clinical notes cover the period from 24 June 2021 to 24 February 2022. On 10 July 2021 Dr Darzikolahi notes chronic physical pain mainly lower back pain with radiation to lower limbs. Dr Darzikolahi referred the applicant to a pain management clinic and prescribed medication. The applicant was also provided with a referral from Dr Memon on 29 September 2021 to see a neurosurgeon. Dr Memon was another doctor in the practice of Dr Darzikolahi (see page 223 of the ARD).
On 23 October 2021 Dr Darzikolahi advised the applicant that his practice no longer accepted workers compensation cases.
The applicant consulted with neurosurgeon Associate Professor Ghahramen on 29 September 2021 (page 248 of the ARD). Associate Professor Ghahramen has produced a report dated 22nd October 2021 (page 246 of the ARD). In that report Associate Professor Ghahramen records:
“Majid was involved in work related injury on 26/9/2017. His ankle twisted at work as he was descending stairs carrying a column of electricity as he was working for a company called GVK. He developed some lower back pain and pain around the right aknle(sic). He went home. The next day he was carrying metal and his ankle twisted with intense pain. He may have experienced a dislocation of his ankle. His pain was intense. He fell backwards and the metal bar fell. He feels that his attendees did not carry him safely. They moved him down stairs and took him to a medical centre. X-rays were taken of his foot which were said to be not fractured. He requested an MRI and the doctor undermined his concern. Multiple times he requested to see another doctor but his boss declined this. His back pain was severe during this time but his ankle pain was more intense in those early days after the injury”.
The applicant also relies on an independent medical examination report prepared by Dr Abraszko who the applicant saw on 28 April 2022. Dr Abraszko has provided a medico- legal report dated 28 May 2022 (page 58 of the ARD). In that report, Dr Abraszko takes the following history:
“Mr Motamednejad was working in the racecourse. There were sections of work site, one on a higher ground than the other. On 22nd September 2017, he was descending from the higher section to the lower one. He had to place his foot on the wooden formwork, when he was holding one steel bar in his left hand. When he placed his foot on this wooden formwork, he slipped with his right foot; he twisted his lower back and landed on his back. He finished his work and went home.
On 27 September, Mr Montamednejad was holding 4-5 steel bars in each hand, he was walking along the beam, he slipped and he then twisted his leg and landed on his back. Due to his back pain, he was rushed to the medical centre at the racecourse”.

RESPONDENT’S MEDICAL EVIDENCE

The respondent relies primarily on the opinions expressed by Dr Bentivoglio and Dr Keller.
Dr Keller provided a report dated 14 March 2018 (page 25 of the reply).
Dr Keller took a history from the applicant, with the assistance of an interpreter, as to how the accident occurred. The doctor states “He reports he was walking on a steel beam carrying another steel beam when he again twisted his right foot. On this occasion he fell forward landing on his right hand. He states he felt immediate pain in his right leg, right foot and lower back”. Dr Keller notes no prior back or ankle complaints. The doctor notes the following complaints: “constant pain in the right foot, associated with cramps in the calf. He rates his pain as between 6 to 8/10 in intensity on a scale where 10 is the most severe. He states the pain radiates up the right leg to his back and that there is no separate lower back pain”.
The applicant further commented at the end of the assessment there was tenderness over his sacrum.
Dr Keller notes the MRI scan of the lumbar spine dated 29 November 2017 however it is not clear whether he inspected the actual scan.
The doctor expressed his opinion (at page 20 of the reply) that the applicant’s physical presentation was grossly exaggerated, and it was not clear to Dr Keller that he had suffered a low back injury at any time. Dr Keller does not address the question of surgery.
Dr Bentivoglio has provided three reports. His first report to the insurer is dated 13 April 2018 (page 30 of the Reply).
Dr Bentivoglio notes the reason for the referral was to address the applicant’s ongoing symptoms that he was experiencing in his right ankle and lower back. He notes an interpreter was present.
Dr Bentivoglio takes the following history of injury:
“Mr Montamednejad advised me, on 26 September 2017, he stepped on an object, close to the end of the day's activity and this caused him to sustain an inversion injury to his right ankle. He advised me he had not had a problem with his ankle previously. He did not experience any popping or snapping sensation present in the ankle. He was able to finish his work that day. He noticed he was experiencing pain present is ankle when walking. He did not report the incident. Overnight his symptoms did not settle completely. He bandaged his foot and ankle.
The following day, on 27 September 2017, he stepped on an object and sustained an eversion injury to his right foot. He experienced a popping sensation present in his foot and ankle. He experienced severe pain present in his foot and ankle region. The pain was severe enough to cause him to fall to the ground and sustain an injury to his back. He advised me he had not had a problem with his back previously. Initially, he did not experience symptoms present in his back. It took about 7 to 10 days before he started to experience symptoms present in his back”.
Dr Bentivoglio notes his back symptoms worsened and his local doctor, Dr Lim organised an MRI scan of the lumbar spine and referred him to a specialist, Dr Gehr.
He notes Dr Gehr recommended a hydrocortisone and local anaesthetic injection.
He notes that the applicant uses a spinal belt.
He noted current symptoms of pain radiating down both legs. On examination, Dr Bentivoglio noted restricted range of movement in the lumbar spine.
He viewed the MRI scan of the lumbar spine and confirmed the evidence of spondylolitic spondylolisthesis at L5/S1 level of the lumbar spine. He was “surprised” that the L5/S1 disc showed essentially normal morphology with no sign of any annular tear or disc desiccation.
Dr Bentivoglio opined that the spondylolitic spondylolisthesis was a pre-existing constitutional abnormality. He stated that if the specific incident occurred as the applicant had advised him the applicant may have aggravated a pre-existing abnormality however any such aggravation to the pre-existing abnormality has ceased.
Dr Bentivoglio did not consider that the applicant’s ongoing symptoms in his back were a direct result of any injury.
Dr Bentivoglio considered that the applicant was grossly exaggerating his complaints.
Dr Bentivoglio does however note that the long-term prognosis for the applicant’s back is somewhat guarded (page 35 of the Reply). He states that the pars interarticularis defects at the L5/S1 level of his lumbar spine has caused a permanent weakness.
In a further report by Dr Bentivoglio dated 8 February 2019 (page 37 of the Reply) the doctor notes that an interpreter attended.
Dr Bentivoglio notes that since his last review the applicant had undergone a CT guided hydrocortisone and local anaesthetic injection under the care of Dr Manohar for his back.
He had tried acupuncture and physiotherapy. He has low back pain 70% of the time. His symptoms have not improved.
He notes his current medication of four Panadeine Forte tablets per day, 50mg of Baclofen daily and 5mg of Valium per night. He also takes Tramal 50mg on an occasional basis.
Dr Bentivoglio compared the MRI scan of the lumbar spine performed on 29 November 2017 and the MRI scan of the lumbar spine performed on the 30 October 2018 and notes the following:
“A more recent MRI scan taken of his lumbar spine in October 2018 was reported as showing spondylolitic spondylolisthesis with a Grade one slip present. There is also a suggestion of a posterior annular tear with a small right paracentral disc protrusion. There is evidence of bilateral foraminal narrowing at the L/4 level of his lumbar spine, but no sign of any nerve compression. I could not see the annular tear or the small right sided paracentral discal abnormality at the L4/5 level.
As a previous MRI scan taken of his lumbar spine did not reveal the discal abnormality or annular tear, I would not consider they have arisen from the fall he had on 27 September 2017”.
He also considered the bone scan performed on 4 June 2018. He notes it did not show any uptake at L5/S1 of the lumbar spine.
He provided a diagnosis of spondylolitic spondylolisthesis with a grade one slip present. He made the diagnosis based on the history provided by the applicant, his physical examination as well as the CT scan, MRI scan and the bone scan findings. He states it is a chronic abnormality that has not been caused by the injury.
Dr Bentivoglio also opines that spondylolisthesis is a common abnormality present in about five percent of the general community, with the majority of people being totally unaware of any spinal disability (page 41 of the Reply).
Dr Bentivoglio felt the applicant was exaggerating his symptoms. This further report had been dated 8 February 2019 specifically prepared for the purpose of addressing an earlier claim made by the applicant for whole person impairment. Dr Bentivoglio’s comments in relation to whole person impairment are as follows:
“With the MRI scan and bone scans showing no new abnormality, I believe there needs to be a significant deduction and I believe at least 50% deduction would be appropriate for these pre-existing abnormalities. At most, I would assess him as having a 4% Whole Person Impairment from that specific incident, and, as indicated previously, I have difficulty attributing any disability to the specific incident he described. It, perhaps, however, may have occurred”.
In his final report of the 7 April 2022 (page 46 of the Reply) Dr Bentivoglio once again acknowledges the applicant attended with an interpreter. Dr Bentivoglio repeats the history of injury previously provided to him by the applicant. Dr Bentivoglio updates the applicant’s medical treatment since his last review. He notes in 2018 he saw a spinal surgeon who recommended spinal surgery at Liverpool Hospital under Medicare. Dr Bentivoglio notes the applicant got scared and elected not to proceed with surgery at that time. Dr Bentivoglio notes the applicant had recently been seen by Associate Professor Ghahramen. He had a further MRI of his lower back and was advised that he would benefit from having a two level fusion of his lower back.
Dr Bentivoglio notes the applicant was still experiencing low back pain. He takes Lyrica 150mg twice daily, Panadol Extra two-four tablets per day and Cymbalta one per day.
Dr Bentivoglio refers to the MRI scan taken in October 2021. It is unclear as to which MRI scan Dr Bentivoglio is referring to as the applicant underwent MRI scans of the lumbar spine on 6 October 2021 and 18 October 2021. These two MRI Scans have been reproduced in the report from Dr Araszko (page 66 of the ARD) but the actual reports do not appear in the documents before me. In any event, he makes the following comment in relation to the MRI scan (page 39 of the ARD):
“He has recently had a new MRI scan taken of his lumbar spine from October 2021. It confirms the presence of a spondylolytic spondylolisthesis. I could not see any abnormality at the L4/5 level though Associate Professor Ghahramen indicates there is a disc extrusion at that level and an annular tear. As far as I was concerned, I felt the internal morphology of his disc was normal and the disc height was well-maintained.
As my viewing of the MRI scan taken of his lumbar spine in October 2021 which I felt only showed a spondylolytic spondylolisthesis and I consider all other levels of his lumbar spine to be normal. His treating specialist however considered he had a disc extrusion at the L4/5 level of his lumbar spine with an annular tear.
I obtained the official radiology report, reported on by Dr Luke Deady. The conclusion was that there was a chronic L5 pars defect, a shallow lower lumber disc bulges but no nerve impingement and no acute fractures. I believe my interpretation of the MRI scan was in keeping with the official radiology report and not show any disc extrusion or any annular tear”.
The report from Dr Bentivoglio dated 7 April 2022 has been specifically obtained by the respondent to address the need for surgery proposed by Associate Professor Ghahramen.
In this report, Dr Bentivoglio expresses the revised opinion that in light of the mechanism of the injury to the applicant’s ankle and from the investigations he has had on his ankle that it is impossible to believe that the applicant would have experienced pain in his ankle at the time of the incident that was so bad and caused him to fall to the ground (page 50 of the Reply).
The respondent also relies on the clinical records and the certificates of capacity issued by Dr Kyriazis who was the first doctor seen by the applicant. Upon examination of these certificates of capacity and clinical notes there is no mention of a back injury or back pain. The applicant attended the practice of Dr Kyriazis for the period 27th September 2017 to 2 November 2017.
Dr Kyriazis notes the applicant has poor English and on the first attendance on 27 September 2017 a co-worker translated for him.

APPLICANT’S SUBMISSIONS

The applicant’s counsel Mr Malouf made oral submissions on 19 April 2023. The oral submissions have been recorded. I will not repeat the submissions in detail.
In oral submissions, the applicant’s counsel pointed out there are two major issues in this case.
(a) was there an injury to the lumbar spine, and
(b) if so, is the proposed surgery reasonably necessary.
The applicant submits that the issue of reasonable necessity of the surgery will fall away if I find that there was an injury to the applicant’s lumbar spine on 27 September 2017 in light of the opinion expressed by Dr Bentivoglio in his report of 7 April 2022 in relation to surgery.
Mr Malouf took me to the statement of the applicant. He pointed out the applicant’s language difficulties. He repeated the history of injury in the applicant’s statement. He then outlined the initial medical treatment with Dr Kyriazis and the fact that the applicant could not communicate with Dr Kyriazis directly but relied on a work colleague to communicate with Dr Kyriazis on his behalf. Mr Malouf then took me to the applicant’s statement where the applicant advises that he asked Dr Kyriazis for some advice and treatment for his back. Mr Malouf points that the applicant states that this request was effectively dismissed by Dr Kyriazis. Mr Malouf submitted that Dr Kyriazis clinical notes should be considered in light of the history given by the applicant in his statement.
Mr Malouf also pointed out that in his statement the applicant confirms he had no knowledge of the workers compensation system.

Mr Malouf confirmed the applicant was terminated in October 2017. The applicant attempted to see Dr Kyriazis after he was terminated. This was refused so he spoke to a union representative and got advice about workers compensation.
Mr Malouf then proceeded to outline the medical treatment the applicant has undertaken over the last almost six years since the alleged injury. Mr Malouf pointed out that despite the significant treatment the applicant has undergone in those six years including medication, numerous conservative treatments, hydrotherapy and physiotherapy this has regrettably not provided the applicant with any lasting resolution of his back pain. Mr Malouf points out this is important to consider when addressing the question of the reasonable necessity for the proposed surgery.
Mr Malouf then refers to the claim form which was completed by the applicant two months after the alleged injury (page 321 of the ARD). Mr Malouf notes the claim form refers to an injury to the back (page 323 of the ARD). Mr Malouf points out that there is no counter evidence relied upon by the respondent from any of the witnesses that are noted on the claim form and in the applicant’s statement to challenge the applicant’s evidence in respect of the mechanism of injury.
Mr Malouf submits the notes of Dr Kyriazis are helpful to establish that something did happen to the applicant’s right ankle on 27 September 2017. The applicant submits that this is important considering the opinion expressed by Dr Bentivoglio in his report dated 7 April 2022 which is relied upon by the respondent. Mr Malouf points out that in that report Dr Bentivoglio proffers an opinion that the right ankle injury could not have been so bad that it caused the applicant to fall. Mr Malouf submits that every single piece of evidence suggests otherwise and in the circumstances Dr Bentivoglio's opinion in his report of 7 April 2022 cannot be accepted.
Mr Malouf then took me to the clinical notes of Dr Lim. Mr Malouf submits that the history of injury taken by Dr Lim is very helpful and very relevant. Dr Lim records that on 27 September 2017 the applicant injured his right leg and back. The clinical notes also demonstrate an ongoing history of back issues.
Mr Malouf then refers to the report of Dr Lim of 5 December 2017 (page 255 of the ARD). He notes that Dr Lim confirms that the mechanism of injury described by the applicant was the direct result of performing a specified work task and as such employment was the main contributing factor to the applicant’s injury. Mr Malouf points out that Dr Lim invites evidence of an alternative mechanism of injury to explain the applicant’s ongoing problems however as Mr Malouf points out there is no evidence that the applicant suffered any other injury to explain his ongoing symptoms.
Mr Malouf noted Dr Bentivoglio is of the opinion that the applicant's ongoing symptoms were referable to degenerative change. Mr Malouf points out that given the applicant's age and severity of his symptoms it is highly unlikely that the applicant's situation arose solely from constitutional degeneration.
Mr Malouf then outlined the consistent history of injury taken by the specialists seen by the applicant including Dr Gehr and Dr Singh.
Mr Malouf confirmed that the applicant does not say that the L5/S1 pars defect was caused by the fall. Mr Malouf confirms that the applicant’s claim is that the fall aggravated the L5/S1 pars defect making it symptomatic. Mr Malouf points out that Dr Bentivoglio does not consider this aggravation as an injury in his reports.
Mr Malouf notes that the applicant's back pain has been so severe at times he has had to go to hospital. He points out that at the hospital on 19 May 2018 the applicant, of his own accord, provides the hospital with a history of a nine-month history of back pain since he had a fall at work.
Mr Malouf acknowledges the numerous radiological investigations in this matter. He notes the X-ray of the lumbar spine of 16 February 2018 does show L4/5 pathology however he acknowledged that the MRI scan of the lumbar spine of 29 November 2017 does not reveal L4/5 pathology. He then referred to the other radiological evidence and summarised the findings on that evidence pointing out that the later diagnostic studies do reveal pathology at the L4/5 and L5/S1 discs.
Mr Malouf then referred to the reports of Associate Professor Ghahramen of 22 October 2021. Mr Malouf states this report addresses the mechanism of injury to the lumbar spine and the necessary elements I need to consider in relation to the applicant’s claim for s 60 expenses. He highlights Associate Professor Ghahramen’s interpretation of the recent MRI scan of the lumbar spine and notes Associate Professor Ghahramen confirms that work has been a substantial contributing factor to the disc injury at L4/5 and L5/S1. Mr Malouf also points out that Associate Professor Ghahramen recommends the proposed surgery which Associate Professor Ghahreman believes will provide a 90% chance of improvement for the applicant. Mr Malouf points out the effectiveness of the treatment is not challenged by any of the respondent’s medical experts. Associate Professor Ghahramen provides a costing of the surgery which has also not been challenged by the respondent.
Mr Malouf then took me to the report of Dr Abraszko. Mr Malouf acknowledges that the precise wording of how the injury occurred is somewhat variable however it is important to bear in mind the applicant does not speak English and a lot of the earlier histories did not come directly from the applicant.
Mr Malouf then summarises Dr Abraszko's opinion. Mr Malouf notes Dr Abraszko’s opinion is that as a result of the work-related incident the applicant suffered from injury to L4/5 and L5/S1 and an aggravation of the L5 bilateral pars defect. Dr Abraszko opines that it is a progressive pars defect. Dr Abraszko states it is a progressive injury and visible on follow up MRI scans. Dr Abraszko states the work injury was a substantial contributing factor to the applicant’s current presentation and notes the applicant was asymptomatic before this injury. Mr Malouf points out that there is no evidence to suggest otherwise. Dr Abraszko acknowledges there were pre-existing degenerative changes to the L5 disc and the injury caused an aggravation to the previously asymptomatic pars defect at L5/S1 and the aggravation is now permanent.
Dr Abraszko notes the initial MRI did not show any disc desiccation however Dr Abraszko states that the pathology has developed as a result of the progressive nature of the injury. Dr Abraszko agrees that the surgery is necessary.
Mr Malouf then took me to the reports of Dr Bentivoglio. Mr Malouf submits that in Dr Bentivoglio’s first report dated 13 April 2018, Dr Bentivoglio makes no suggestion that the applicant did not complain of back pain. Importantly, Dr Bentivoglio does not say that there was no injury to the back or no aggravation injury but rather that he is fully recovered from any aggravation.
Mr Malouf then refers to the second report of Dr Bentivoglio dated 8 February 2019. Mr Malouf notes in that report Dr Bentivoglio opines that the changes on the MRI scan of the lumbar spine were not caused by the work injury. Mr Malouf points out that Dr Bentivoglio expresses the opinion that if the specific incident that the applicant has described aggravated any pre-existing abnormality that aggravation has now ceased. Mr Malouf submits that in this report Dr Bentivoglio does not say there was no aggravation but rather the aggravation has ceased. Mr Malouf then refers to the whole person impairment assessment provided by Dr Bentivoglio where he provides an assessment of 4% whole person impairment attributable to the specific incident which Mr Malouf submits establishes injury and causation.
Mr Malouf then refers to the report of Dr Bentivoglio dated 7 April 2022. Mr Malouf noted Dr Bentivoglio refers to the constitutional condition in the applicant’s lower spine and how the condition is not related to the applicant’s injury. In Mr Malouf’s submission, Dr Bentivoglio does not address the injury the applicant is claiming, that is, an injury to the lumbar spine involving L4/5 and L5/S1, and an aggravation of an underlying condition at L5/S1 as a result of the fall.

RESPONDENT’S SUBMISSIONS

The respondent made oral submissions on 19 April 2023. The oral submissions have been recorded. I will not repeat the submissions in detail.
In oral submissions, counsel for the respondent Mr Joseph submitted that the applicant did not injure his lower back in the incident on the 27 September 2017.
Mr Joseph relied on the following evidence.
In respect of the injury to the applicant’s lumbar spine, Mr Joseph made the following submissions.:
There was no contemporaneous complaint of back pain to Dr Kyriazis who was the first doctor the applicant saw following the incident on the 27 September 2017 (page 60 of the Reply).
The applicant had someone to interpret for him at the medical appointments.
Apart from a congenital, constitutional condition at L5 and L5/S1 the diagnostic studies including an MRI scan of the lumbar spine dated 29 November 2017 (page 55 of the Reply) and a bone scan/ CT scan of the lumbar spine dated 4 June 2018 (page 57 of the Reply) demonstrate no pathology that you would expect to see following a frank injury to the lumbar spine at L4/5 and L5/S1.
Mr Joseph points out the inconsistent histories in the medical evidence before the Commission. Mr Joseph referred to the report from Dr Keller dated 14 March 2018 who took a history from the applicant that he fell and landed on his right hand (page 25 of the Reply).
At no time did the applicant identify what part of his back he impacted with the ground when he fell.
Mr Joseph submits that the applicant has sustained a further injury to his lower back when he advised Dr Ebrahimi that he felt an increase in back pain after driving an Uber for two days (page 96 of the ARD).
Mr Joseph points out the clinical notes from Dr Lim contain an attendance by the applicant with a psychiatrist, Dr Khan, who diagnosed depression and anxiety (page 179 of the ARD). Mr Joseph submits this is consistent with the pain behaviour of the applicant which has been commented on by several doctors who referred to gross exaggeration of complaints by the applicant.
Mr Joseph notes that two of the applicant’s treating doctors, Dr Gehr (page 253 of the ARD) and Dr Singh (page 251 of the ARD) do not comment on the L4/5 disc in their reports.
Mr Joseph submits that Associate Professor Ghahramen in his reports dated 29 September 2021 and 22 October 2021(pages 248 and 246 of the ARD) and the medico-legal report from Dr Abraszko dated 28 May 2022 (page 59 of the ARD) do not provide an explanation as to what happened on the 27 September 2017 and do not explain the absence of pathology in the MRI Scan of the lumbar spine dated 29 November 2017 and the bone scan/CT scan dated 4 June 2018. Further, Associate Professor Ghahramen does not explain how the pathology, demonstrated in the more recent diagnostic studies, has developed as a result of an alleged injury that occurred four years prior to him consulting with the applicant.
Mr Joseph submits that the more recent findings in the MRI scans of the lumbar spine taken in October 2021 of kyphosis and disc desiccation referred to in the report from Associate Professor Ghahramen dated 22 October 2021 cannot have been caused by the alleged fall on 27 September 2017.
In respect of the proposed surgery Mr Joseph made the following submissions.
Firstly, Mr Joseph concedes that if I find injury to the L5/S1 lumbar disc, Dr Bentivoglio in his report of the 7 April 2022 (page 46 of the Reply) agrees that there is justification for the surgery to L5/S1 as proposed by Associate Professor Ghahramen.
Mr Joseph points out, however, that the applicant’s claim is for lumbar surgery to L4/5 and L5/S1 and that I cannot make a determination in respect of surgery to one disc and not the other.
Mr Joseph refers to the opinion of Dr Bentivoglio in his report of the 7 April 2022 (page 53 of the Reply) in which Dr Bentivoglio states that there is no indication to include surgery to the L4/5 disc when contemplating fusion surgery. Dr Bentivoglio does not agree with Associate Professor Ghahreman that there is an abnormality at the L4/5 lumbar disc.
In conclusion, Mr Joseph submits that I would not be satisfied on the balance of probabilities that the applicant sustained any personal injury to the lumbar spine on the 27 September 2017. The reasonable necessity of the surgery has to arise out of the frank injury sustained on the 27 September 2017. In his submission, as there was no personal injury to the applicant’s lumbar spine on 27 September 2017, the proposed surgery cannot be considered reasonably necessary and arising out of a personal injury sustained on the 27 September 2017.

FINDINGS AND REASONS

Injury

Section 4 of the 1987 Act defines injury as follows:
“Injury
(a) means a personal injury arising out of or in the course of employment.”
The applicant has the onus of proving that he has suffered an injury within the terms of s 4 of the 1987 Act.
In relation to the onus of proof in Nguyen v Cosmopolitan Homes (NSW) Pty Limited [2008] NSW CA 246 McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34 (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates (1938) 60 CLR 336 wherein Kirby P (as his Honour then was) said (at [461G]) (Sheller and Powell JJA agreeing) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. After referring to earlier English authorities, his Honour added (at [462 E]):
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the act.”
His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts.”
Further in the case of Email Limited (in the interests of Allianz Australia Workers Compensation (NSW) Limited v Qummou and others [2006] NSWWCCPD198:
“if there can be identified an incident which involves - either by being itself the change, or by bringing about the change - a physical change in the worker, then - even though that change may be no more than the culmination of a progressive disease, and not the product of some external force - that damage is to be regarded as an ‘injury’ within the meaning of par(a) of the definition of ‘injury’ in s4 of the Act (see Powell J in Australian Conveyor Engineering v Mecha Engineering Pty Limited (1998) 17 NSWCCR 309 at 324).”
The abovementioned legal principles need to be considered in the context of the evidence of the applicant’s case.
The statement of the applicant dated 20 January 2023 (page 1 of the ARD), provides the applicant’s recollection as to how his injury was sustained on 27 September 2017. His evidence has not been challenged. The applicant has also recorded that he injured his right ankle and back in the claim form he completed on 16 November 2017(page 323 of the ARD).
The statement of the applicant sets out what medical treatment he has undertaken since the accident on 27 September 2017.
The respondent did not seek to cross examine the applicant.
The respondent did not obtain or rely on any statements from co-workers disputing that the applicant fell to the ground on 27 September 2017 and injured his lower back. In particular, I note the applicant has nominated a witness to the accident and provided a mobile phone number for the witness in the claim form the applicant signed on 15 November 2017(page 325 of the ARD).
The respondent accepted the applicant’s claim for workers compensation in respect of the injury the applicant sustained to his right ankle on 27 September 2017. The respondent does not accept that the applicant injured his lower back on that day.
One of the reasons the respondent has denied liability for the back injury, as set out in the s 74 notice dated 4 May 2018, is that the clinical notes from Dr Kyriazis, the first doctor seen by the applicant, do not record an injury to the back (page 1 of the Reply).
In this respect, I note the applicant does not speak English. I accept that at the first consultation with Dr Kyriazis on the day of the accident, a work colleague, Mohsen, communicated with Dr Kyriazis on his behalf (page 3 of the ARD).
I do not agree with the respondent’s submission that there was an interpreter present at all of the consultations with Dr Kyriazis. The applicant has advised in his statement that his superior Ray attended all of the subsequent appointments with Dr Kyriazis (page 3 of the ARD). There is no evidence before me that Ray interpreted for the applicant at the subsequent consultations with Dr Kyriazis.
The respondent has focused on the contemporaneous record from Dr Kyriazis and in doing so, have failed to address the cause of the applicant’s ongoing lower back pain.
The danger of fact finding based on contemporaneous material was highlighted by Basten J in Mason v Demasi [2009] NSW CA 227 at [22].
In that case, the trial judge was invited to discount the appellant's oral testimony on the basis of accounts given to various health professionals which appeared either inconsistent with each other, or with her oral testimony, or both.
In light of that decision and in the claim currently before me I consider any such inconsistencies should be approached with caution for the following reasons:
(a)    the health professional, in this case, Dr Kyriazis who took the initial history was not cross examined.
(b)    I have considered the circumstances of the consultations. In this respect it is agreed that the applicant did not speak English and, at least at the first consultation, the applicant did not speak to the doctor directly and a work colleague provided the history of injury.
(c)    I have also considered the circumstances of the consultation. Dr Kyriazis was not the applicant’s treating doctor but rather a doctor that he was taken to see by the respondent. The applicant advises in his statement that he wished to change doctors but was advised that he was not allowed to change doctors and he must attend the “employer’s doctor” (see paragraph 12 of the applicant statement) (see page 3 of the ARD).
There is no report from Dr Kyriazis before me. The respondent issued their s 74 Notice on 4 May 2018. The applicant had lodged his workers compensation claim form on 16 November 2017, less than two months after the accident. The claim form noted the injury to the right ankle and the back. The applicant also provided the respondent with 14 Workcover medical certificates from his treating doctor, Dr Lim, that all included reference to back injury and lumbar spine radiculopathy. The first certificate from Dr Lim that was attached to the s 74 Notice was dated 15 November 2017 (page 277 of the ARD). The respondent attached a further 13 WorkCover medical certificates from Dr Lim to the s 74 Notice dated 4 May 2018 up to the 18 April 2018 all of which included reference to a back injury and lumbar spine radiculopathy.
In light of this I agree with the applicant’s submissions that the clinical notes of Dr Kyriazis are not helpful in determining whether or not there was an injury to the applicant’s back.

In his statement dated 23 January 2023, the applicant provides the following history of injury:
“At approximately 8:00am, I was carrying a steel bar in each hand. I was walking along I beam to get from one part of the site to another. Suddenly, I twisted my right ankle to the left and then to the right, which caused me to slip and fall on my back. I heard a pop in my ankle. I felt that the pain in my right ankle and back had worsened since the day before”.
I accept that following the incident on 27 September 2017, the applicant's primary site of pain was his right ankle. In this context, I am able to reconcile the history taken from the applicant by Dr Bentivoglio, that the applicant did not feel immediate pain in his lower back and that pain developed seven to ten days after accident (page 31 of the Reply). I do note, however, that the applicant in his statement does refer to back pain on the day of the accident and Dr Bentivoglio records the applicant’s account of falling to the ground and injuring his back. I further note Associate Professor Ghahreman takes a history from the applicant in his report of the 22 October 2021 that his back pain was severe, but his ankle pain was worse in the early days following the accident (page 246 of the ARD).
I note Dr Keller takes a history from the applicant that he fell onto his right hand (page 26 of the Reply). This is the only history taken from the applicant that states the applicant advised him that he fell on his right hand rather than his back when he fell. The applicant does not say that he fell on to his right hand in his statement. The applicant does not provide this history to any other medical provider that he has seen in relation to his injury. Dr Keller’s report is dated 14 March 2018. This is four months after the applicant presented at the practice of Dr Lim. Dr Lim records the following history of how the accident occurred (page 208 of the ARD).
“On Wednesday, 27 September 2017 Mr Montamednejad reported that whilst at work he suffered a R) ankle and back injury due to slipping and falling off a steel beam at the workplace”.
Further, in his report of 16 February 2018, Dr Singh records the following history of injury (page 251 of the ARD):
“He is not fluent in English” “He is a steel fixer and welder, and on 27^th September, 2017 he suffered an injury to his right ankle and back after he fell off a steel beam and hit his back.”
I note there is no mention of the applicant falling on to his right hand.
In light of the history of how the injury occurred that is contained in the applicant’s statement and in the medical reports relied on by the applicant and also in the reports provided by Dr Bentivoglio that the applicant fell onto his back, I am unable to accept that the applicant told Dr Keller that he fell onto his right hand. I note in this respect Dr Keller does note the applicant advised him that he felt immediate pain in his right leg, foot and lower back on 27 September 2017.
After his termination of employment by the respondent and contact with his union in November 2017, the applicant's medical history in relation to his back injury is consistent and significant.
He has undergone 10 diagnostic studies in the form of MRI scans, CT scans, X rays and bone scans of his lumbar spine since the accident on the 27 September 2017.
What is apparent from a close study of the radiology, which is conveniently reproduced in the report from Dr Abraszko, (page 58 of the ARD) is that the initial MRI scan dated 29 November 2017 confirmed pathology at L5 and L5/S1. This scan was taken at the request of Dr Lim two months after the accident. Dr Lim arranged this referral due to the applicant’s ongoing pain and symptoms in his lower back which the applicant outlines in his statement.
The radiological studies that the applicant has undertaken following the initial MRI scan of the lumbar spine on the 29 November 2017 confirm the progressive nature of the injury that the applicant has sustained to his lower back.
At this point it is important to note that Dr Bentivoglio has not commented on the CT scan of the lumbar spine that was taken on 26 May 2018 nor the MRI scan of the lumbar spine undertaken on 19 August 2019, or the MRI scan of the lumbar spine undertaken on 6 December 2020. The reports for these scans are reproduced in the report of Dr Abraszko (pages 62-64 of the ARD),
This is significant as these studies show pathology at L4/5 and L5/S1. Furthermore, in his most recent report, Dr Bentivoglio refers to an MRI scan of the lumbar spine undertaken in October 2021. The applicant underwent 2 MRI scans of his lumbar spine in October 2021, and it is unclear to which of these MRI Scans Dr Bentivoglio is referring.
Dr Bentivoglio is of the opinion that if the applicant had fallen onto his back, he may have aggravated the bilateral pars defect at the L5 disc. What Dr Bentivoglio fails to consider is what effect the fall and resultant aggravation of the L5 bilateral pars defect could have had on the lumbar spine at L4/5 and L5/S1. Dr Bentivoglio provides no guidance as to why the aggravation has ceased. The applicant is still experiencing severe pain which according to the medical evidence is increasing in its severity. I do not accept Dr Bentivoglio’s opinion that the aggravation to the applicant’s lumbar spine sustained in the fall on 27 September 2017 has ceased.
Associate Professor Ghahramen and Dr Abraszko have both addressed this in their reports dated 22 October 2021 and 28 May 2022 respectively and have concluded that the mechanical stress of the injury sustained on 27 September 2017 has progressed to where the radiological investigations now demonstrate pathology at the L4/5 and L5/1 discs.
The evidence from the applicant, which is unchallenged, is that prior to 27 September 2017 he was fit and well and able to carry out what I accept were heavy duties as a steel fixer employed by the respondent.
I do not accept the respondent’s submission that the increase in pain referred to in the clinical notes of Dr Ang (page 82 of the ARD) which occurred after the applicant attempted to work as an Uber driver for two days represented a further separate injury. None of the other medical specialists have suggested that there has been a further separate injury to the applicant’s lower back since 27 September 2017. Dr Bentivoglio has not commented on this increase in lower back pain nor identified it as an intervening injury.
The respondent submits that as the applicant does not identify what part of the back he fell on in his statement, I cannot be satisfied that he injured his lower back in the fall on the 27 September 2017. I reject this submission and rely on the history taken by Dr Lim on 15 November 2017 noting complaints of lower back pain. Furthermore, Dr Lim arranged for an MRI scan of the lumbar spine following the initial consultation.
In relation to the respondent’s submission that the applicant has exaggerated his complaints of back pain I note the following:
The applicant suffers from anxiety and depression.
He has come under the care of a psychiatrist and a psychologist.
He does not speak English.
He has sought advice in relation to his pain from numerous medical providers including doctors, orthopaedic and neurological specialists, physiotherapists, and pain management consultants.
His level of distress is understandable considering the fact that the treatment he has received to date has not afforded him any relief.
The radiology also demonstrates the condition at L4/5 and L5/S one is progressively deteriorating which may also explain the applicant’s increased level of complaint which some may see as an exaggeration of his symptoms.
In relation to the respondent’s submission that Dr Gehr (page 253 of the ARD) comments that the MRI scan of the lumbar spine does not show any nerve compression it should be noted that Dr Gehr does take a history of lower back pain and right leg pain.
In relation to the respondent’s submission that Dr Singh does not mention the L4/5 disc, whilst this is correct, Dr Singh does note grade 1 spondylolisthesis of L5 and a pars defect at L5/S1 (page 251 of the ARD).
Neither Dr Singh nor Dr Gehr had the benefit of the later MRI scans of the lumbar spine undertaken by the applicant which do demonstrate pathology at the L4/5 and L5/S1 discs. There has been no subsequent injury to explain this deterioration in the pathology reported in the applicant’s lumbar spine.
Finally the respondent submits that if the applicant is relying on a frank injury to his lumbar spine you would expect to see evidence of that injury on the diagnostic studies and the evidence does not provide this. The respondent states the imaging is unremarkable. I do not accept this.
I believe that the diagnostic imaging does demonstrate pathology at L4/5 and L5/S1 as identified by Associate Professor Ghahramen and Dr Abraszko. Associate Professor Ghahramen has provided an opinion, which I accept, that the fall sustained by the applicant on 27 September 2017 has resulted in what could be described as a physical change in the applicant’s lower back, that change being an aggravation of a progressive disease in the applicants lower back which has resulted in, and should be regarded as, an injury to the lumbar spine involving the L4/5 disc and the L5/S1 disc.
Associate Professor Ghahramen has provided a causative explanation for the pain the applicant experiences in his lower back which Associate Professor Ghahramen relates to the fall on 27 September 2017.
The respondent further submits that the constitutional condition of disc desiccation identified on the recent MRI scans of the lumbar spine at the L4/5 and L5/S1 discs cannot be considered attributable to the injury on the 27 September 2017. I reject this submission. I prefer the opinion expressed by Dr Abraszko that the disc desiccation has developed as part of the progressive condition as a result of the injury on the 27 September 2017.
Considering the above, I find, on the balance of probabilities, the applicant has sustained an injury to his lumbar spine on the 27th of September 2017. I acknowledge that causation is not always direct and immediate however in light of the unchallenged statement of the applicant and noting my finding that the clinical notes of the first treating doctor seen by the applicant, Dr Kyriazis, are unhelpful in relation to the question of the applicant’s back injury, I am persuaded that the applicant did sustain an injury to his lumbar spine on 27 September 2017. I am comforted in my decision by the comments made by Powell J in AustralianConveyor Engineering v Mecha Engineering Pty Limited(1998) 17 NSWCCR 309,that a physical change in the worker, even though that change may be no more than the culmination of a progressive disease, is to be regarded as an injury within the meaning of paragraph a) of the definition of injury in s 4 of the 1987 Act. I also note my finding of injury simpliciter is consistent with the decisions of Zicker v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310 and North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [77]. In those cases, the worker was able to rely on injury simpliciter despite the existence of a disease.
Having made a finding injury, it is now necessary for me to address s 9A of the 1987Act. Section 9A(1) of the 1987 Act as amended by the 2012 amending Act provides:
“No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.”
Subsection (2) of s 9A provides examples of matters to be taken into account in determining whether employment was a substantial contributing factor. The list, which is not exhaustive, has six examples:
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace
Prior to the incident on the 27 September 2017, the applicant had no problems with his lower back. He carried out his job as a steel fixer for seven months without any difficulties. The work was heavy. There is no evidence before me to indicate that the applicant had experienced any prior pain or injury to his lower back prior to the fall on 27 September 2017. According to the applicant he felt immediate pain in his lower back after he fell on 27 September 2017.
I acknowledge and it is not disputed that prior to the injury, the applicant had an asymptomatic pars defect at L5 of his lumbar spine and asymptomatic grade 1 spondylolisthesis at the L5/S1 level of his lumbar spine.
Dr Abraszko opines that the “injury has caused an aggravation to the previously asymptomatic pars defect at L5 and grade 1 spondylolisthesis at L5/S1 levels which developed as a result of his injury” and “the pre existing asymptomatic pars defect at L5 level with subsequent L5/S1 spondylolisthesis would not require treatment at this point of Mr Motamednejad’s life, if the work related incident had not occurred”.
I accept and prefer this opinion to the opinions expressed by Dr Bentivoglio in relation to the applicant’s pre-existing constitutional conditions which I have referred to above.
I therefore find that the applicant has sustained an injury to his lumbar spine during the course of his employment with the respondent on 27 September 2017.
I further find that the applicant’s employment with the respondent was a substantial contributing factor to the injury to the applicant’s lumbar spine.

In light of my findings in relation to injury I will now address the proposed surgery.

PROPOSED SURGERY

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,
(c)     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 surgery proposed by Associate Professor Ghahramen 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 judgement 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. Doctor Bodel and Dr Meakin were both wrong to apply that test.
87. Giles J 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 that he has had ongoing pain and symptoms since 27 September 2017 which still significantly impact his lifestyle and activities of daily living.
Associate Professor Ghahreman and Dr Abraszko have confirmed the appropriateness of the surgery.
The applicant has undergone extensive alternative forms of treatment including medication, hydrotherapy, physiotherapy, pain management and spinal injections.

The applicant has provided me with an estimate of the cost of the surgery. The respondent has not challenged this estimate.
Associate Professor Ghahreman has provided an opinion in relation to the potential effectiveness of the proposed surgery. He advises there is a 90% chance of improvement (page 247 of the ARD).
Surgery has been discussed with the applicant since 2018 when he was seen by Dr Papadimitriou. Surgery was also flagged by Dr Le on behalf of Dr Papadimitriou in 2018 (page 150 of the ARD).
Dr Bentivoglio has conceded that surgery to the L5/S1 disc is appropriate however Dr Bentivoglio does not agree that surgery to the L4/5 disc is necessary. He bases this opinion on his interpretation of the diagnostic imaging taken in October 2021. Dr Bentivoglio states he obtained the “official report” from the radiographer, Dr Luke Deady in relation to an MRI scan carried out in October 2021. Dr Bentivoglio does not reproduce the “official report” he refers to in his report (page 50 of the reply). Dr Bentivoglio has failed to acknowledge the pathology demonstrated on the MRI scans dated 6 October 2021 and 18 October 2021 which have been reproduced in the report of Dr Abraszko (page 66 of the ARD). The two MRI scans clearly show a disc extrusion and annular bulge at the L4/5 level. I do not agree with Dr Bentivoglio’s interpretation of the diagnostic studies and prefer the opinions of Associate Professor Ghahramen and Dr Abraszko in this respect.
Dr Abraszko has considered all of the diagnostic studies the applicant has undergone of his lumbar spine since November 2017. Dr Abraszko has agreed that the surgery proposed by Associate Professor Ghahreman is reasonably necessary and related to the injury on the 27 September 2017. Dr Abraszko states “without surgery, his back pain will not improve” (page 68 of the ARD).
In this respect I prefer the opinions of Associate Professor Ghahreman and Dr Abraszko to the opinion of Dr Bentivoglio. I note Dr Keller does not comment on the need for surgery.
Furthermore, when determining whether such a procedure is indicated, this is a clinical decision between a patient and their treating surgeon, which will also encompass the potential risks, complications and shortcomings of such a procedure and subsequent management that may be required.
The applicant has indicated in his statement that he wishes to proceed with the proposed surgery.
As to the reasonableness of the treatment, Associate Professor Ghahreman is in the best position to recommend treatment unless there is reliable evidence to question his treatment recommendations.
I have already noted that Dr Bentivoglio supports surgery to the L5/S1 disc. I have already indicated that I do not accept the opinion expressed by Dr Bentivoglio that surgery to the L4/5 surgery is not indicated. Dr Bentivoglio agrees that the surgery to L5/S1 is indicated but offers no opinion as to whether the proposed surgery to L4/5 and L5/S1 is likely to improve the applicant’s clinical condition. Dr Abraszko supports the surgery proposed by Associate Professor Ghahreman and states the surgery will alleviate the applicant’s back pain (page 68 of the ARD).
In relation to the issue of whether or not the injury on 27 September 2017 materially contributed to the need for surgery, I note in the matter of Murphy v Allity Management Services Pty Limited [2015] NSWWCCPD 49 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 and 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 the Baltica General Insurance Co Ltd (1996)12 NSWCCR 716)”
In light of my findings on injury, I have no difficulty in further finding that the injury sustained by the applicant on 27 September 2017 materially contributed to the need for surgery to the L4/5 and L5/S1 discs proposed by Associate Professor Ghahramen. I have accepted that the applicant sustained an injury to his lumbar spine when he fell onto his back on the 27 September 2017 and the fall caused an aggravation of the L5 bilateral pars defect and a progressive injury to the L4/5 disc and the L5/S1 disc due to the mechanical stress placed upon the discs when the applicant sustained the fall. In light of this I find that the injury has materially contributed to the need for the surgery.

SUMMARY

In light of my findings in respect of injury to the lumbar spine I find that the surgery proposed by Associate Professor Ghahramen (a posterior decompression and posterior interbody fusion at L4/5 and L5/S1) as referred to in his report of 22 October 2021, is reasonably necessary medical treatment as a result of the injury to the applicant on 27 September 2017.
There will be an award for the applicant pursuant to s 60 of the 1987 Act, and I order that the respondent is to pay for the costs of and incidental to the surgery (a posterior decompression and posterior interbody fusion at L4/5 and L5/S1) proposed by Associate Professor Ghahramen in his report dated 22 October 2021 in accordance with the workers compensation gazetted rates.

[2023] NSWPIC 203

4 May 2023