Nejad v CJ Formwork Pty Ltd (in liquidation)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nejad v CJ Formwork Pty Ltd (in liquidation) [2022] NSWPIC 227
APPLICANT:	Mostafa Afzale Nejad
RESPONDENT:	CJ Formwork Pty Ltd (in liquidation)
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	19 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for proposed surgery at C5/6 level; application of section 60(5) Workers Compensation Act 1987; conflicting medical opinion as to whether surgery is reasonably necessary; Held: Surgery is reasonably necessary as result of workplace injury. Diab v NRMA Ltd applied.
DETERMINATIONS MADE:	The Commission declares: 1. Pursuant to section 162 of the Workers Compensation Act 1987 that the employer, CJ Formwork Pty Ltd entered into a contract with Insurance and Care NSW (known as icare) in respect of any liability under the Workers Compensation Act 1987. 2. The injury on 22 November 2019 took place before the commencement of the winding up of the employer. The Commission determines: 3. That the proposed C5/6 fusion surgery as recommended by Dr Bhisham Singh is reasonably necessary treatment as a result of the work-related injury on 22 November 2019. 4. The respondent is to pay the costs of the proposed surgery and associated treatment costs at the applicable workers compensation gazetted rates.

STATEMENT OF REASONS

BACKGROUND

Mostafa Afzale Nejad, the applicant, was employed with the respondent, CJ Formwork Pty Ltd, as a construction formworker when he sustained various injuries including to his cervical spine with a date of injury of 22 November 2019.
The Application to Resolve a Dispute (ARD) was amended to delete the reference to “both shoulders” and instead insert “right shoulder”. Also, the claim for weekly compensation was discontinued.
The claim for compensation now being pressed is confined to the costs of and incidental to the surgery proposed by Dr Bhisham Singh comprising of a cervical decompression/ fusion at C5/6 with prothesis inserted.
The respondent’s counsel confirmed at the arbitration hearing that the only issue in dispute is whether this proposed surgery is reasonably necessary.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 14 April 2022. Mr Phillip Perry, counsel, instructed by Mr Nicholas Bruno, solicitor, appeared for
Mr Afazle Nejad, who was present. Mr Dewashish Adhikary, counsel, instructed by
Mr Adel Saleh, solicitor, and Ms Melinda Hatfield and Mr Daniel Amin from the insurer appeared for the respondent. The proceedings were conducted by MS Teams audio-visual platform due to the COVID-19 situation.
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 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. Both counsel made oral submissions, which were sound recorded, and a copy of the recording is available to the parties.

FINDINGS AND REASONS

Treating medical evidence

Because the issue in dispute is confined to whether the proposed surgery to the cervical spine is reasonably necessary, it is not necessary to summarise all of the medical and other evidence in relation to the lumbar spine and the right shoulder.
An MRI scan was performed at the request of Dr Mohd Daud Noorzad on 26 November 2019 which refers to a 3mm broad based disc posterior protrusion at C4/5 which the radiologist,
[1] ARD p 58 and Reply p 1.
Dr Philip Herald, called small and he noted there was no evidence of cervical nerve root impingement[1]. There was loss of cervical lordosis at C4/5.
On 3 December 2019 Ryan Heuston, physiotherapist at Workers Doctors practice, examined Mr Afzale Nejad, taking a history of his work duties and the development of pain to the neck, back and right shoulder. In respect to the neck, he noted the pain was bilateral and was aggravated by lifting and disturbed his sleep. On examination movements were 80 degrees in rotation and extension and 90 degrees in flexion[2].
[2] ARD p 160.
Also, on 3 December 2019 Dr Lim from Workers Doctors practice examined
Mr Afzale Nejad[3]. Dr Lim refers to a diagnosis of cervical spine strain and C4/5 disc protrusion found on MRI. The management plan was for modified activities, pain management and simple analgesics. Dr Lim was also treating the back and right shoulder.
[3] ARD p 157.
Dr Lim gave referrals to physiotherapy and spinal surgeon, Dr Khong.
On 10 December 2019 Mr Afzale Nejad was treated by physiotherapist Mr Lam at the practice including for his neck, although it seems his back was the main focus of treatment[4]. Dr Lee on the same day recorded neck pain at 8/10.
[4] ARD p 156.
On 11 December 2019 Dr Khong, neurosurgeon, recorded in the Workers Doctors practice progress notes that he had a surgical consultation with Mr Afzale Nejad[5]. He refers to the cervical MRI scan and says, “the imaging is reassuring”. He noted there was no cord compression and a disc bulge at C4/5 with some central canal stenosis was present.
[5] ARD p 159.
Thereafter, there are various entries relating to consultations with doctors and physiotherapists at the Workers Doctors practice which have all been read by me but are not summarised in these reasons.
On 20 January 2020 a bone scan was undertaken at the request of Dr Khong which noted the loss of cervical lordosis was consistent with muscular spasm in the cervical spine. It was also noted that “there is mild disc degenerative change with mild uptake at C4/5 disc level”. In the conclusion the radiologist referred to the uptake as “minimal”[6].
[6] ARD p 59 and Reply p 3.
On 19 February 2020 Dr Khong recorded in the practice’s progress notes that Mr Afzale Nejad continues to complain of neck and back pain. “I have re-reviewed hims [sic] MRIs. There is no clear pain generator. He did not bring his bone scans today for review. I have continued to recommend non-operative management[7]”.
[7] ARD p 145.
On 18 March 2020 Dr Khong examined Mr Afzale Nejad again and records in the practice progress notes that he has ongoing neck and back pain, worse in the morning when waking up. He feels weakness and numbness in his arms and both sides of his neck feel tense. The doctor refers to ongoing PT, which I infer means physiotherapy and that he walks in a pool.
[8] ARD p 140.
Dr Khong notes there is no severe radiation down the upper limbs, and he continues to encourage physiotherapy and swimming[8].
On 18 March 2020 Dr Aaron Tso, presumably another general practitioner at the practice, records that he spoke with Dr Khong who would not recommend surgery due to
[9] ARD p 138.
Mr Afzale Nejad’s age and he was to continue with physiotherapy and swimming[9].
On 28 May 2020 Mr Afzale Nejad had a right shoulder arthroscopic labral repair performed by Dr Soo and there are various entries in the notes relating to that treatment.
On 19 June 2020 Dr Khong made a lengthy entry in the practice’s progress notes[10] and reported to Dr Calvache-Rubio, a general practitioner at the Workers Doctors practice.
Dr Khong relates that he consulted with Mr Afzale Nejad on 11 December 2019, 19 February 2020, and 18 March 2020. He concludes his report by stating that Mr Afzale Nejad continues to complain of neck and back pain, but this has improved and that he has some mild radiation of neck pain down the arms, which does not sound typical for radiculopathy.
[10] ARD p 127.
[11] Reply p 6.
Dr Khong advises that he has “recommended non-operative management in the form of physiotherapy, swimming and core strengthening for his lumbar spine (e.g. yoga and pilates etc)”.[11]
On 22 July 2020 Mr Afzale Nejad attended Dr Mo at the same practice and reported worsening neck pain and requested a review by Dr Khong[12].
[12] ARD p 119.
In report dated 12 August 2020 Dr Khong adds details of his consultations with
[13] Reply p 9.
[14] ARD pp 112 to 114.
Mr Afzale Nejad on 19 June 2020 and 12 August 2020 and his treatment recommendation was similar to that noted above. It is recorded that Mr Afzale Nejad was to see Dr Singh for a second opinion[13]. Details are also set out in the practice’s progress notes and he adds that he feels Mr Afzale Nejad should see a pain management physician[14].
On 11 September 2020 Dr Singh recorded in the Workers Doctors practice progress notes that he had consulted with Mr Afzale Nejad[15] and his comments form the basis for his report dated 14 September 2020. Dr Singh reported that in the cervical spine there is evidence of disc bulging at C5/6 which is contacting the anterior theca. He noted the bone scan did pick up some increased tracer at C5/6. Dr Singh advised in the presence of ongoing symptoms surgery can be considered and he stated that Mr Afzale Nejad will benefit from a diagnostic injection to the cervical spine, and should his symptoms remain uncontrolled a surgical option would be an C5/6 anterior cervical decompression and fusion procedure[16]. The doctor does not explain why the MRI and bone scan referred to the pathology at C4/5 and he refers to the C5/6 level.
[15] ARD p 106.
[16] Reply p 10.
Dr Singh states in report to Dr Mo dated 15 September 2020[17] that he spoke to
[17] ARD p 105.
[18] ARD p 106.
Mr Afzale Nejad via telehealth and says that the neck pain radiating to the head and down the right shoulder to the arm with pins and needles in the fingers is likely to be related to the C5/6 pathology seen on the MRI scan which is adding to his pain from the shoulder. Dr Singh says he wants to have the injection of the cervical spine which he says will be “of diagnostic importance”[18].
On 28 September 2020 Dr Soo recorded in the practice’s progress notes that a cortisone injection to the right shoulder had been given to Mr Afzale Nejad two weeks earlier and this really improved the pain in his shoulder. Dr Soo considered that after the shoulder surgery and with the sudden increase in activity with physiotherapy and rehabilitation he had developed aggravation of subacromial bursitis. He needed to continue to rest and slowly resume physiotherapy[19].
[19] ARD p 104.
On 13 October 2020 Dr Mo records that Mr Afzale Nejad is “awaiting cervical and lumbar injections”[20].
[20] ARD p 102.
On 15 October 2020 a CT Guided right C6 perineural injection was performed at the request of Dr Singh[21].
[21] ARD p 68.
Dr Soo, orthopaedic surgeon who was treating Mr Afzale Nejad’s right shoulder, in report to Dr Lim dated 26 October 2020 noted that Mr Afzale Nejad had neck pain which still bothers him and that he had seen Dr Singh who was considering surgery for his neck because the cortisone injection to his neck helped only for a very short period[22].
[22] ARD p 40.
On 3 November 2020 Dr Mo records “ongoing neck and back pain, recent cervical and lumbar injections 2-3 weeks ago, improvement for several days in neck pain[23]”.
[23] ARD p 100.
On 18 November 2020 Dr Singh reported that an injection to Mr Afzale Nejad’s cervical spine at C5/6 gave him significant relief of symptoms for a few days during the anaesthetic phase and his pain dropped from 7/10 to 2/10. The doctor noted that the pain had come back, and he is troubled by his neck and periscapular and shoulder pain. Dr Singh states that “in the presence of ongoing symptoms, and failure of conservative treatment, surgery is therefore both reasonable and necessary[24]”. He adds that Mr Afzale Nejad will benefit from anterior cervical decompression and fusion at C5/6 with the insertion of a prothesis. On 24 November 2020 Dr Singh provided an estimate of his fees for surgery, including an assistant in the sum of $20,614.50[25]. He adds that approval was sought also for 7 to 10 days in-patient rehabilitation following discharge from hospital[26].
[24] ARD p 41 and Reply p 12.
[25] ARD p 42.
[26] ARD p 42.
On 5 January 2021 Dr Singh reported that Mr Afzale Nejad had persistent symptoms from the cervical spine[27]. On 16 February 2021 Dr Singh noted the same and periscapular pain[28].
[27] ARD p 43.
[28] ARD p 44 and Reply p 18.
On 20 June 2021 Dr Lim, a general practitioner at the Workers Doctors practice, provided a report for the insurer confirming his views that the neck injury was caused by work. He noted his management plan included modified activities, pain management, assistance with activities of daily living, simple analgesics and gabapentin. He noted Mr Afzale Nejad’s difficulty with changing clothes and showering and inability to work. Dr Lim’s report and comments are not confined to the neck injury as he deals with the shoulder and lumbar injury as well[29].
[29] ARD p 46.
On 16 August 2021 Dr Singh reported to Mr Afzale Nejad’s solicitors[30]. He states that in the cervical spine there is evidence of disc bulging at C5/6 which is contacting the anterior theca and he says a nuclear medicine bone scan of the cervical spine does pick up increased uptake of tracer at C5/6. Dr Singh provides the following opinion about the proposed treatment:
“The treatment options to the pain arising from the neck are: pain medication, activity modification, physiotherapy, injections, and surgery. He has trialled conservative treatment with physiotherapy, pain medication, pain psychology and activity modification. He had an injection to the cervical spine at C5/6 which gave him significant relief of symptoms for a few days during the anaesthetic phase of the injection. His pain dropped down from 7-8/10 to 2/10. He had a similar response to a lumbar injection at L4/5. This is of diagnostic importance.
His pain has come back, and he is troubled by his neck and periscapular and shoulder pain. The investigations and the response to injection confirm that the majority of his symptoms in the periscapular area of neck and arm, are arising from the pathology at C5/6. Given the fact that he has not had sustained relief from the alternative modes of treatment, surgery is reasonable.
Surgery would be a decompression and fusion at C5/6. Surgery is an appropriate method of treatment for persistent symptoms arising from the cervical spine. Surgery is likely to result in improvement of pain and stiffness and function. Nonsurgical options are unlikely to result in improvement. Surgery is likely to help them return to the workforce therefore it is cost-effective treatment. Surgery is aimed at treating the root cause of his symptoms therefore is effective in the management of discogenic pain from C5/6. Surgery is an accepted and recommended mode of treatment in patients who have not responded to conservative treatments in the presence of significant symptoms and a confirmed diagnosis.
I must note that I am in disagreement with the IME report by Dr Sheehy. I do not believe that further conservative treatment is likely to be of any significant benefit. I also do not believe that his ability to swim or not have had water treatment has much bearing to his prognosis.”
[30] ARD p 53.
On 9 December 2021 Dr Mo examined Mr Afzale Nejad in relation to ongoing neck and back pain. He recorded “requesting reengage with physiotherapy, attends self-directed exercises in pool, consider formal hydrotherapy in future. Awaiting approval for spinal surgery”. The Gabapentin dosage was increased from one to two capsules at night[31].
[31] ARD p 71.
On 6 January 2022 Dr Mo saw Mr Afzale Nejad and recorded in the progress notes he had ongoing neck pain as well as back pain. Gabapentin was prescribed. It is noted he was awaiting commencement of physiotherapy[32].
[32] ARD p 70.
On 14 February 2022 Dr Lim reported to Mr Afzale Nejad’s solicitors that he considered that the proposed cervical fusion was reasonably necessary because it was clinically appropriate. He does not really say why but he says it will permanently correct the anatomical defect. He does not explain the nature of the defect, although earlier in his report he refers to a C5/6 disc protrusion. I note the MRI scan referred to a protrusion at C4/5. Dr Lim notes that
[33] ARD p 57.
Dr Sheehy has suggested conservative therapy, but Dr Lim says this has failed over two years. Dr Lim expresses the opinion that the surgery will be cost effective, and it will also benefit his psychological condition which is impacted by his chronic pain. Finally, Dr Lim states the surgical treatment is acceptable being performed by a spinal surgeon, Dr Singh[33].

Medico-legal evidence

Dr Sheehy

On 20 January 2021 Dr John Sheehy, neurosurgeon, provided a medico-legal report for the insurer. His report contains the history that Mr Afzale Nejad has never swum and has not used any form of water therapy. I note that Dr Khong’s entry for June 2020 states that he walks in the pool, of course this may have been for his back as the doctor was treating his lumbar area as well as his cervical spine.
Dr Sheehy also records the history that physiotherapy has been no help and that
Mr Afzale Nejad’s neck is more of a problem for him than his back and he experiences pain radiating into his right arm as far as the radial three fingers and he finds it difficult to sleep and he has headache and neck ache.
Dr Sheehy on his examination found cervical flexion and extension were full, with limitation in lateral rotation and lateral tilting of the neck bilaterally in the terminal 10 degrees. The doctor says he has seen the CT cervical scan dated 26 November 2019 and states that no abnormality was reported in the cervical spine. However, the radiologist did report a 3mm broad based disc posterior protrusion at C4/5 with lordosis at that level. Dr Sheehy does refer to the bone scan having minimal uptake at that level and the remainder of the cervical spine being unremarkable. He advises he has seen the reports of Dr Khong and Dr Singh.
Dr Sheehy opines that there is insufficient evidence to support anterior cervical discectomy and fusion at C5/6 and says it would be appropriate to continue conservative treatment and the next step should be contact with a pain clinic or rehabilitation. He noted that no compression was reported on the cervical spine MRI. He adds that the proposed surgery is not reasonably necessary as there is no spondylolisthesis and says there is the slightest increased uptake on his isotype scan at C4/5 without MRI evidence of significant pathology or nerve root compression[34].

Dr Conrad

[34] Reply p 16.

On 22 April 2021 Dr Conrad provided a medico-legal report. He noted that Mr Afzale Nejad had right shoulder arthroscopic surgery by Dr Soo on 20 May 2020, a lumbar epidural injection at L4/5 on 20 October 2020 and a CT guided right C6 perineural injection on 15 October 2020. On examination Dr Conrad found moderate restriction of movement in the cervical spine in an asymmetrical fashion and that there was moderate paravertebral muscle spasm present. He noted that an MRI scan dated 26 November 2019 showed a 3mm posterior disc protrusion at C4/5 and the bone scan of 20 January 2020 showed minimal uptake at C4/5.
Dr Conrad summarised the medical reports in relation to the proposed cervical surgery and stated he preferred the opinion of the treating neurosurgeon Dr Singh, that there has been a failure of conservative treatment and the anterior fusion operation is reasonably necessary on the grounds that Mr Afzale Nejad continues to have severe pain in his neck and the option of conservative treatment has failed[35].
[35] ARD p 49.

Legal principles

The legal test to be applied when determining whether proposed treatment is reasonably necessary as a result of a work place injury as required by section 60 of the 1987 Act was considered in Diab v NRMA Ltd[36] wherein Roche DP stated at [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.”
[36] [2014] NSWWCCPD 72, Diab.

In Diab Deputy President Roche cited the decision of Judge Burke in Rose v Health Commission (NSW)[37] with approval and stated:
[37] [1986] NSWCC2; (1986) 2 NSWCCR 32, Rose.
“[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.
[90] While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd[1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia[2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’”.

The decision in Diab was applied in Broadspectrum Australia Pty Ltd v Skiadas[38].
[38] [2019] NSWWCCPD 31, Skiadas.
In Skiadas the surgery in question was to the cervical spine and Dr Al Khawaja when recommending it stated, the outcome of the surgery cannot be guaranteed. As Roche DP stated in Diab at [89] surgery carries a risk of a less than ideal result, however, a poor outcome does not necessarily mean that the treatment was not reasonably necessary.
In Sunrise T & D Pty Ltd v Le[39] at [101] it was noted that the worker had undergone decompressive surgery and a host of other treatments which had not been successful, however the Arbitrator concluded that there was a reasonable chance of a successful outcome from the proposed surgery, and it was better for Mr Le to have the surgery than go without it. On appeal this approach was found not to be in error.
[39] [2012] NSWWCCPD 47, Le.

Submissions

These principles and authorities need to be considered in the context of the evidence in
Mr Afzale Nejad’s case. There is a considerable divergence of opinion as to whether the proposed C5/6 decompression and fusion is reasonably necessary treatment. On the one hand Dr Singh, the treating surgeon who recommends this treatment, does believe it is reasonably necessary. His opinion is supported by Dr Lim and Dr Conrad. However, the respondent relies upon the opinion from the initial treating neurosurgeon Dr Khong, who did not recommend surgery and favours a conservative approach to treatment. This view is supported by the respondent’s medico-legal neurosurgeon, Dr Sheehy.
As both counsels’ submissions have been sound recorded I will not refer to them verbatim and the main thrust of their submissions is outlined below.
Mr Perry in his oral submissions on behalf of Mr Afzale Nejad drew attention to the following evidence:
(a)    Mr Afzale Nejad’s statements where he describes the symptoms from which he suffers including on 22 November 2019 when he felt excruciating pain in the course of performing his work duties and leading to him stopping work[40];
[40] ARD p 3.
(b)    the MRI scan of the cervical spine which counsel submitted took place quickly, within four days of the work injury, and revealed a 3mm C4/5 broad based disc protrusion;
(c)    the records from the Workers Doctors practice reveals Mr Afzale Nejad undertook physiotherapy treatment, was prescribed pain medication, had psychological treatment and injections to inhibit his pain[41];
[41] ARD pp 71 to 107.
(d)    that Dr Singh viewed the MRI scan and refers to disc bulging at C5/6, even though the radiologist refers to it being at C4/5. Counsel relies in particular on
Dr Singh finding the bulge was contacting the anterior theca[42]. Counsel also notes that Dr Singh refers to the pain as not being controlled and is disabling. And there was decreased range of movement in the cervical spine;
(e)    it was submitted that Dr Singh was being careful as initially he stated that surgery can be “considered” and he recommended a diagnostic injection be performed. Counsel submitted that this means the response to the injection would inform
Dr Singh at which level to operate and it would indicate if surgery would improve Mr Afzale Nejad’s cervical condition. Counsel also drew attention to the doctor’s advice that should his symptoms remain uncontrolled the surgical option is for a C5/6 fusion;
(f)    the CT guided C6 perineural injection was performed on 14 October 2020 and the outcome of that injection can be seen in Dr Singh’s report to Dr Mo dated 18 November 2020[43], where Dr Singh states that the injection gave significant relief with the pain dropping from 7 to 2/10. Counsel submits this is evidence of diagnostic importance, to identify the source of the pain, that it could be relieved, and that Dr Singh found when the pain returned, the surgery was reasonable and necessary;
(g)    counsel submits the above evidence demonstrates that Dr Singh moved from considering surgery to recommending it. And that the doctor has specified the type of surgery, being anterior cervical decompression/ fusion C5/6 with the insertion of prothesis;
(h)    the surgery is supported by Dr Lim in report dated 20 June 2021[44] and also in his report dated 14 February 2022[45]. It is submitted that Dr Lim considers the factors discussed in Diab, and
(i)    Dr Conrad has considered the reports of Dr Singh and Dr Sheehy and strongly prefers the opinion of Dr Singh, that conservative treatment has failed and that
[42] ARD pp 106 to 107.
[43] ARD p 41.
[44] ARD p 46.
[45] ARD p 57.
[46] ARD p 48.
Mr Afzale Nejad has severe pain, and that surgery is reasonably necessary[46].
Mr Perry submitted that a number of aspects of Dr Sheehy’s report would lead the Commission to prefer the opinion of Dr Singh to that of Dr Sheehy. He submits that
Dr Sheehy professes to have viewed the MRI scan dated 26 November 2019 and says no abnormality was reported, yet the radiologist did find a disc protrusion at C4/5. Counsel also submitted that even though Dr Sheehy lists some of the treatment undertaken by
Mr Afzale Nejad he does not refer to the diagnostic injection. It was submitted that the result of this injection is what led Dr Singh to recommend the surgery, and this is a significant omission for Dr Sheehy not to consider it. Counsel submits, therefore, that Dr Sheehy’s opinion is of no assistance.
Mr Perry also relies upon the fact that Dr Singh has had a number of consultations with
Mr Afzale Nejad as opposed to Dr Sheehy and is well placed to decide on the appropriate course of treatment.
Mr Adhikary for the respondent submitted the following:
(a)    the MRI scan viewed by Dr Sheehy is that of 26 November 2019. His interpretation of the scan was consistent with that of all doctors until Dr Singh. Also, no nerve compression was reported on the MRI leading to a conclusion that surgery is not warranted;
(b)    that Dr Singh and Dr Khong place no emphasis on the radiological finding on that MRI scan that there was disc desiccation;
(c)    that conservative treatment has not failed because when one considers the treating records Mr Afzale Nejad last had physiotherapy in August 2020 and no other referrals have been made for non-surgical treatment;
(d)    Dr Sheehy recommends other treatment such as hydrotherapy and there is no evidence of attendance at a pain clinic;
(e)    counsel submitted Dr Sheehy’s opinion should be accepted as he does refer to the bone scan tracer finding the slightest uptake at C4/5 and this is consistent with his opinion that there is no significant pathology present in Mr Afzale Nejad’s cervical spine;
(f)    the opinion of Dr Khong was relied upon heavily noting that Dr Khong stated that the imaging was “reassuring”. It was also submitted that Dr Khong had found no significant neurological compression and non-operative treatment was recommended, such as ongoing physiotherapy and swimming;
(g)    it was submitted that the factors discussed in Diab, when applied to the evidence in Mr Afzale Nejad’s case leads to the conclusion that the surgical treatment proposed is not appropriate, alternate treatment is available such as recommended by Dr Khong and Dr Sheehy. That Dr Singh had also referred to the need for chronic pain management to be tried;
(h)    the opinions of Dr Conrad and Dr Lim are largely based on Dr Singh’s opinion and do not take into account the earlier opinion of Dr Khong, which was relevant for them to consider, and
(i)    there has been no failure of conservative treatment because it has not been undertaken by Mr Afzale Nejad for the whole period.
In reply, Mr Perry drew attention to Dr Khong on 11 December 2019 encouraging physiotherapy and swimming, but he emphasised that was for that time. He submitted that
Dr Singh treated Mr Afzale Nejad after this time and initially he had not embarked on surgery. Mr Perry repeated that the diagnostic injection identified pathology was at C5/6 and he characterised Dr Singh’s approach as very careful. He submitted the proposed surgery is to treat the root cause of Mr Afzale Nejad’s symptoms, to manage discogenic pain based on the injection.
Finally, it was submitted that Dr Singh is a specialist, he has treated Mr Afzale Nejad, he undertook diagnostic injection, his approach has been conservative, and he has given reasons why he proposes the surgery. Counsel relied on authority that that the proposed treatment does not have to be absolutely necessary to meet the test of reasonably necessary.

Determination

The determination as to whether the proposed surgery is reasonably necessary is difficult due to the differing medical opinions and both counsel have made forceful submissions. I am concerned that Mr Afzale Nejad, at a comparatively young age, is seeking to undertake significant surgery.
My concerns initially were increased because he has psychological symptoms. However, no doctor has suggested his psychological state has rendered his reporting of his cervical symptoms as unsound. Dr Sheehy answered “no” to the question posed to him as to whether there were any features of non-organic or abnormal illness behaviour. Dr Lim has taken into account Mr Afzale Nejad’s psychological symptoms and opines that the proposed surgery is likely to improve such symptoms.
I find there is no evidence to doubt Mr Afzale Nejad’s account in his statements of the severity of his cervical pain and the interference it has rendered to his sleep and activities. It is his continued reporting of such symptoms to Dr Singh that has led in part to the consideration of surgery as an option for treatment.
I accept the submission of Mr Perry that Dr Singh has not rushed in to perform surgery but took the precaution of undertaking the injection at C6 for diagnostic purposes and it is only after he reviewed Mr Afzale Nejad following that injection, that he moves to finally recommend surgery. I also find it is significant that while Dr Khong advocates non-surgical treatment, he was not treating Mr Afzale Nejad over all the time when his symptoms persisted, and he did not have the benefit of the diagnostic injection.
Dr Sheehy also accepts the work-related injury has not resolved. I have carefully considered his opinion particularly about the pathology evident on the MRI scan, and his view that the lack of significant pathology does not support the surgery.
Dr Singh has expressed a different view about the pathology, and it is difficult to reconcile the two opinions. It seems they both have viewed the MRI scan of 26 November 2019. I also initially had concerns that Dr Singh refers to the disc bulge being at C5/6 and the bone scan uptake at that level, whereas the reporting radiologists refer to C4/5 level. However, as
Mr Perry submitted the diagnostic injection to C6 did indicate the cause of pain was from C5/6 level.
Given that Dr Sheehy did not refer to the relevance of the injection or to it at all, I consider it is preferable to accept the opinion of Dr Singh. He also has had the advantage of actually treating Mr Afzale Nejad and so I find he is in a better position to judge whether surgery is appropriate when compared to Dr Sheehy, who has only seen him once. Dr Khong’s opinion was given before the diagnostic injection so I do not know what his view about surgery would be had he received the results of the injection and examined Mr Afzale Nejad afterwards, as Dr Singh did.
Therefore, even though I do have some concerns about Mr Afzale Nejad undertaking this surgery, I find that the opinion of Dr Singh should be accepted. I find the surgery is an appropriate treatment. As to whether Mr Afzale Nejad should persist with non-operative treatment such as pain management, I find that Dr Singh has considered whether further conservative treatment would benefit him, and he has supported a surgical option. It may well be given the length of time from the initial MRI scan and since Dr Singh has seen
Mr Afzale Nejad he may wish to have a repeat MRI before actually undertaking the surgery, but that is a matter that he as the treating surgeon will no doubt consider.
I have considered the other factors referred to in Diab and find the cost is not particularly remarkable. I accept the submissions of Mr Perry that the surgery is reasonably necessary.

SUMMARY

I find that the proposed C5/6 fusion surgery as recommended by Dr Singh is reasonably necessary treatment as a result of the work-related injury on 22 November 2019.
I order that the respondent is to pay the costs of the proposed surgery and associated treatment costs at the applicable workers compensation gazetted rates.

[2022] NSWPIC 227

19 May 2022