Noor v Black Dot Consulting Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Noor v Black Dot Consulting Pty Ltd [2021] NSWPIC 346
APPLICANT:	Haidar Noor
RESPONDENT:	Black Dot Consulting Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	14 September 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for compensation pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act) for costs of and incidental to proposed lumbar surgery; accepted lumbar injury; dispute as to whether proposed surgery reasonably necessary; treating practitioners initially not supportive of surgical intervention; respondent’s medicolegal expert considered there was abnormal illness behaviour and maximisation; whether alternative treatments exhausted; Held - proposed surgery is reasonably necessary medical treatment; respondent to pay the costs of and incidental to the surgery pursuant to section 60 of the 1987 Act.
DETERMINATIONS MADE:	1. The L5/S1 anterior lumbar interbody fusion and L5/S1 posterior fusion with decompression proposed by Dr Al-Khawaja on 3 February 2021 is reasonably necessary as a result of the injury on 24 April 2018.
ORDERS MADE:	1. The respondent to pay the costs of and incidental to the proposed surgery pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Haidar Noor (the applicant) was employed by Black Dot Consulting Pty Ltd (the respondent) as a graphic designer. On 24 April 2018, the applicant sustained an injury to his lower back, left leg and left foot when he was struck by a motor vehicle.
Liability for the injury was accepted by the respondent’s insurer.
On 2 February 2021, the applicant’s neurosurgeon, Dr Darweesh Al Khawaja, sought approval from the insurer for the applicant to undergo an L5/S1 anterior lumbar interbody fusion and L5/S1 posterior fusion with decompression.
Liability for the proposed surgery was declined in a dispute notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 12 May 2021.
The applicant sought internal review of that decision on 15 June 2021. The decision to decline liability for the surgery was maintained in a notice issued on 28 June 2021.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 20 May 2021. The applicant seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the costs of and incidental to the surgery proposed by Dr Al Khawaja.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:

(a) whether the surgery proposed by Dr Al-Khawaja is reasonably necessary as a result of the injury on 24 April 2018.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 17 August 2021 by teleconference. The applicant was represented by Ms Eraine Grotte of counsel, instructed by Mr Andrew Joy. The respondent was represented by Mr Simon McMahon of counsel, instructed by Mr Nathan Byers. A representative from the insurer was also present.
At the conclusion of the arbitration hearing a short timetable was established to enable the applicant to serve and lodge written submissions addressing a decision of the former Workers Compensation Commission which was referred to in the respondent’s submissions. The parties were informed of my intention to determine the dispute at the conclusion of that timetable without further hearing.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD and attached documents;
(b) Reply and attached documents;

(c) documents attached to an Application to Admit Late Documents lodged by the applicant on 22 July 2021; and

(d) written submissions lodged by the applicant on 18 August 2021.

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

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by him on 24 June 2021.
The applicant was injured on 24 April 2018 whilst walking back to the office from his lunch break. The applicant was crossing a road at the lights when a car suddenly came around the corner and collided with his left leg. The applicant immediately felt pain in his lower back radiating to his left leg and numbness in his left leg.

The applicant was initially in shock and did not feel the full extent of his injuries but the pain in his lower back and left leg got significantly worse. On or about 26 April 2018, the applicant consulted a general practitioner and was referred for an MRI of the lumbar spine.

The applicant was subsequently referred to orthopaedic surgeon, Dr Ian Farey, who recommended a steroid injection to relieve the applicant’s pain. The injection was performed on 13 July 2018.

On or about 12 September 2018, the applicant consulted with neurosurgeon, Dr James van Gelder. Dr van Gelder recommended further imaging and an MRI to the lumbar spine was performed on 21 September 2018.

On or about 18 October 2018, the applicant was referred for exercise rehabilitation. The applicant attended sessions once per week to strengthen his core, mobilise his left leg and improve the range of motion in his lower back and left leg. These sessions provided the applicant with temporary relief of the constant pain and restriction in his lower back and left leg.

The applicant was subsequently referred to a neurologist, Dr Kishore Kumar who performed nerve conduction studies. Dr Kumar recommended that the applicant continue with physiotherapy and medication to manage his symptoms. The applicant tried to manage his symptoms in this way but achieved only temporary relief.

Dr Farey referred the applicant for a further MRI on or about 11 July 2019.
The applicant was also referred to a psychiatrist, Dr Richa Rastogi for management of his declining mental health. The applicant said he had not anticipated how long his recovery would take and he was struggling to manage the constant pain in his lower back and left leg. The applicant felt there was no possibility his condition would improve due to his feelings of depression and hopelessness associated with the injuries.

On or about 2 September 2019, the applicant was referred to pain specialist,
Dr Alister Ramachandran. The applicant attended consultations with Dr Ramachandran once per month. He provided the applicant with pain management plans with a focus on education and mental health. He also performed an injection which did not assist the applicant’s back pain. Although the applicant was struggling with his mental health, he did not believe his pain symptoms were being properly addressed.

The applicant underwent a further MRI on 15 January 2020.

On or about 13 February 2020, the applicant was referred to neurosurgeon, Dr Al Khawaja. Dr Al Khawaja referred the applicant for further imaging and an injection. The applicant found the injection provided him with temporary relief from the constant pain in his back. A further MRI was performed on 27 May 2020.

The applicant reported to Dr Al Khawaja that he was still experiencing intense pain in his lower back. The applicant was referred for a SPECT scan. Dr Al Khawaja recommended a further injection and the applicant underwent a nerve block injection to his lumbar spine on 4 November 2020. This again failed to provide lasting relief.
On 2 February 2021, the applicant reported to Dr Al Khawaja that the pain in his lower back and left leg was getting worse and that the treatment up until this point had been relatively ineffective. Dr Al Khawaja discussed the possibility of undergoing surgery to the lumbar spine.

The applicant said he had constant pain and restricted movement in his lower back and left leg. The applicant attended regular consultations with his general practitioner, psychiatrist and psychologist and managed his pain with medication but had been unable to obtain relief.
Dr Al Khawaja had explained that he may not receive any benefit from the surgery. Despite knowing this, the applicant still wished to undergo the surgery. The applicant said he had explored many conservative measures including chiropractic treatment, physiotherapy, exercise physiology, hydrotherapy, exercises at home, various medication and consultations with a pain specialist. The applicant had also undergone various scans and injections to his lower back.

Treating medical evidence

Orthopaedic surgeon, Dr Farey prepared a report on 12 June 2018, in which he noted an onset of low back pain and left lower limb pain following a motor vehicle accident on 24 April 2018. The applicant’s symptoms had persisted and pain was present most of the time. Mapping the pain in his lower limb clearly showed an S1 distribution with less symptoms in the L5 distribution. The applicant had been using Mobic with some relief and undertaken chiropractic manipulation without any benefit.
Dr Farey observed that MRI imaging revealed degenerative disc disease at L5/S1, an annular tear and minor annular protrusion extending from the central canal into the left foramen. The protrusion abutted the left S1 nerve root. The MRI report expressed the opinion that there was an L5 nerve root compression. Dr Farey felt the nerve root was not compressed or displaced although the annular tear did abut the nerve root. Dr Farey stated:
“Mr Noor has an irritative and compressive left S1 radiculopathy secondary to annular disc protrusion. I relate the production of his symptoms to his injury at work. I have advised him to undergo epidural steroid injection on the left at the L5/S1 level. Should this fail to decrease his symptoms, a foraminal injection of steroid at this level would be indicated. I will seek permission for the injection to take place. Irritative radiculopathy of this nature is an ideal indication for the injection. At this stage I am not contemplating surgical intervention.”
Neurosurgeon and spine surgeon, Dr James van Gelder saw the applicant on 5 November 2018. Dr van Gelder noted that the applicant had pain radiating from his back down his lateral thigh and posterior thigh, lateral calf and posterior calf and under his foot and little toe. Dr van Gelder said an MRI scan done on 21 September 2018 showed a minor disc herniation and annular tear on the left side at L5/S1 extending across the neural foramen. This was adjacent to but not greatly impacting on the L5 and S1 nerve. Dr van Gelder stated:
“The symptoms correlate with the minor disc injury at L5-S1. He is not suitable for neurosurgical treatments except as a last resort. He should continue to be managed with pain management strategies and active treatment approaches and waiting for symptoms to improve. Cortisone injections have a small chance of meaningfully helping him. We discussed the importance of active treatment approaches and pain management strategies, but he already has a good understanding of this. He does not appear to have maladaptive pain behaviour.”
Neurologist, Dr Kumar prepared a report for the applicant’s general practitioner,
Dr Hany Abdalla, on 10 December 2018. Dr Kumar took a history of persisting tingling, burning and numbness in the left leg. Dr Kumar noted that the applicant’s MRI showed left posterior lateral annulus tear and disc bulge at L5/S1, abutting but not compressing the S1 nerve root and said:
“I assess that the disc bulge is probably causing his back pain. There may be a mild abutment on the S1 nerve root causing the neuropathic pain in the left leg.”
Dr Kumar recommended:
“I suggested ongoing physiotherapy, paracetamol, and non-steroidal anti-inflammatories. I have added Cymbalta 30 mg daily for two weeks then up to 60 mg for neuropathic pain. l talked about referral to the Pain Unit, but he was not keen. He was not keen on a second nerve root injection. I agree that there was no immediate indication for surgery.”
Dr Kumar’s nerve conduction study report of the same date concluded:
“Nerve conduction studies to the left leg were normal. Needle EMG of the left leg was also normal, with no evidence of a motor radiculopathy.”
On 17 June 2019, Dr Farey reported that the applicant was continuing to experience low back pain, left limb pain and paraesthesia. An epidural injection done on 13 July 2018 was without benefit. The applicant had undertaken chiropractic treatment, physiotherapy and hydrotherapy since this time and continued to take Lyrica, Mobic, Panadol and Cymbalta.
On 1 August 2019, Dr Farey noted the applicant had undergone further MRI and there was no evidence of nerve root compression although there was an annular tear at L5/S1.
Dr Farey stated:
“In the setting where there is no nerve root compression Discectomy would be highly unlikely to relieve his symptoms. He may even develop increased symptoms as a result of nerve root inflammation. I have advised him to continue his current treatment.”
The applicant was seen by interventional pain medicine specialist, Dr Alister Ramachandran, on 16 September 2019. Dr Ramachandran noted:
“We further discussed the findings of his MRI scan and I have reassured him that he does not have any sinister cause for his presentation. I highlighted the importance of incorporating a more holistic approach incorporating both medical, physiotherapy and psychological interventions for his pain.”
Dr Ramachandran made recommendations to change the applicant’s medications, have a physiotherapy assessment with a home exercise program. The applicant was a suitable candidate for hydrotherapy, occupational therapy and epidural injection.
On 30 October 2019, Dr Ramachandran reported that the applicant had recently undergone a RACZ epidural injection. The applicant was actively engaged with ongoing physiotherapy and was to commence hydrotherapy shortly. It was noted that the applicant was also seeing a psychiatrist and psychologist.
On 22 January 2020, Dr Ramachandran reported:
“Mr Noor is continuing to maintain his appointments with the physiotherapist and clinical psychologist to help with his background mood disorder from his work-related injury. In terms of his pain, his pain levels are still persistent and a repeat MRI scan shows persistent discogenic related pain. I note that he has had previous neurosurgical reviews for his persistent pain. We had a discussion today regarding looking at possible clearance from the surgical perspective prior to considering a group pain management program. I have taken the liberty to refer him to Dr Darweesh Al-Khawaja for neurosurgical evaluation.”
Neurosurgeon, Dr Darwish Al Khawaja prepared a report for Dr Abdalla on 13 February 2020. Dr Al Khawaja noted that the applicant had been attending regular physiotherapy and had been reviewed by a pain specialist, Dr Ramachandran, for pain management.
Dr Farey had performed a steroid injection at L5/S1. The applicant was referred to a neurologist for nerve conduction studies and was advised to get a new MRI scan.
Consultant neurologist, Dr Ashish Malkan, saw the applicant on 9 March 2020 and reported that his nerve conduction/EMG study of the left lower limb was within normal limits.
On 9 April 2020, Dr Al Khawaja noted that the recent MRI scan showed a disc fragment touching the left L4 nerve root which might be causing symptoms. An L4/5 facet and left L4 nerve injection and repeat MRI were arranged. Dr Al Khawaja suggested that he may need a second opinion.
Dr Al Khawaja reported on 19 May 2020 that the injection had helped the applicant for a very short period of time, maybe less than 24 hours. Dr Al Khawaja ordered a further MRI but on 18 June 2020 reported that there was no major nerve root compression. Although the applicant was still annoyed with significant pain and tingling in his left leg and foot,
Dr Al Khawaja could not “see anything surgical from the lumbar spine point of view” at that stage. A SPECT scan was ordered.
At a review on 30 July 2020 the applicant was still annoyed with significant pain in his back and left leg and numbness in his foot. Dr Al Khawaja said:
“I reviewed the MRI of his lumbar spine again. There is foraminal narrowing at the L5/S 1 level, which may be pushing the left L5 nerve root, and there is a possible tear next to the nerve and the joints look inflamed as well. The bone scan showed tendinosis of the erector spinae muscle attachment with the spinous processes.”
Dr Al Khawaja asked the applicant to continue with the pain specialist and in the meantime recommended an injection to the left L5/S1 facet and to the L5 nerve root. Dr Al Khawaja said:
“This will be of diagnostic value and could be of therapeutic value as well. I do not know if this will make a difference to Mr Noor, but I think it is wise to try, and if this gives him any relief, it can guide me to the source of his pain, mainly because his symptoms are giving him significant disability.”
Dr Ramachandran saw the applicant again on 19 August 2020 and reported:
“Mr Noor reports that he has had a neurosurgical review. I gather that the recommendations are for ongoing conservative management. I note that he is scheduled to have a possible steroid injection to address his discogenic pain. In today's consultation, we further discussed his ongoing pain management and as previously recommended that it is important for us to incorporate a multidisciplinary management approach as his presentation is fairly complex with ongoing adjustment disorder and significant PTSD which maintains his pain levels. I do recommend that he considers a multidisciplinary pain management program and I have referred him to be part of a moderate intensity pain program at Westmead Hospital (Back to Life program). As far as his medication is concerned I explained that he is on a fairly stable dose of medications that are nonopioid based and I shall be guided by Dr Rastogi in terms of his psychotropic medications.”
On 22 December 2020, Dr Al Khawaja reported that the applicant had good improvement after the injection which lasted for up to two weeks.
On 2 February 2021, Dr Al Khawaja reported that the applicant was presenting with increasing pain in his back and leg although his condition had settled temporarily after the nerve block. Surgical treatments were discussed and the applicant indicated that he wished to go ahead with surgical intervention because he could not keep going the way he was. The risks of surgery were discussed with the applicant. The applicant understood the condition very well and was willing to undergo surgical intervention. Approval was sought for an L5/S1 anterior lumbar interbody fusion and posterior fusion with decompression.
The applicant’s general practitioner, Dr Hany Abdalla prepared a report for the insurer on 18 February 2021. Dr Abdullah provided a clinical diagnosis as follows:
“I initially saw Mr Noor on the 18th of May 2018 where he presented with severe lower back pain radiating to his left leg and numbing and difficulty walking. Examination of the same day showed a slow antalgic gait and difficulty in changing posture from seated to standing and vice versa. He was in obvious pain and had low endurance to sitting or standing. At that time he showed me imaging of his lumbar spine and an MRI lumbar spine (Medscan Merrylands 1/05/2018) confirmed Left L5 nerve root impingement and disc tear. On subsequent visits his lumbar spine symptoms have remained the same with poor mobilisation, antalgic slow gait and loss of function.”

Asked by the insurer whether all allied health treatment options had been exhausted,
Dr Abdalla said:
“Yes I do believe that allied health treatment options have been exhausted for Mr Noor. Mr Noor has had extensive therapy both passive and active with chiropratic and physiotherapy modes. He has been attending pain specialist appointments. His injuries occured in 2018 and now in 2021 some three years later he has not improved in terms of chronic pain and loss of function related to his lumbar spine. I would expect with physical therapy and all other modalities that Mr Noor has been treated with that there would have been significant improvement by now. Since this is not the case for
Mr Noor I believe that allied health treatment has been exhausted and has not been fruitful.”
Dr Abdalla said that the left sided injections had reduced the applicant’s pain by about 50% for a few weeks. Dr Abdalla said this was a promising sign that the injury had been correctly identified and diagnosed. When the effect of the injections ceased, the pain returned.
Asked whether the surgery proposed by Dr Al Khawaja was reasonably necessary,
Dr Abdalla responded:
“I do believe that the surgery is reasonably necessary even though Mr Noor has not participated in physical therapy since 2019. This is because he has identified pathology that responded to spinal injection on the left side. Also that he did have physical therapy and pain specialist review and did not improve in pain or capacity which further confirms that the lumbar injury needs to be addressed so that he can benefit from physical therapy. Mr Noor's injuries are complicated by his PTSD (post traumatic stress disorder) and I believe that if his pain can be reduced his function and mood will improve.”
Dr Al Khawaja prepared a report for the applicant’s solicitors on 9 June 2021. Dr Al Khawaja noted that since the injury the applicant had been suffering from lower back pain going to the left leg at the L5 distribution. The applicant had been seen by a physiotherapist and pain specialist. Dr Farey had organised steroid injections at L5/S1 and also had an epidural steroid injection without significant effect.
The applicant described symptoms of lower back pain going down the left leg with paraesthesia, weakness and numbness. Dr Al Khawaja referred to MRI studies and said he had referred the applicant for nerve conduction studies. The MRI showed a possible fragment of a disc at L4/5 and an injection had been performed to the facet and nerve on the left side at that level. The injection helped for a short period of time. Because of that the applicant was referred for further MRI of the lumbar spine. When the applicant was seen on 18 June 2020, the applicant was advised to keep going with conservative treatment. The applicant was also referred for an SPECT study.
Taking another look at the MRI on 13 July 2020, Dr Al Khawaja could see some foraminal narrowing at the L5/S1 level and possible pressure on the left L5 nerve root. The applicant was given an injection to that level. The applicant reported good improvement after this injection lasting for two weeks. As a result, Dr Al Khawaja was of the belief that the L5/S1 level was the pain generator for the applicant.

Dr Al Khawaja diagnosed an L5/S1 disc and facet injury with foraminal narrowing causing compression at the L5 nerve root giving significant functional incapacity. The applicant had tried all conservative treatment types and nothing had helped except temporarily.
Dr Al Khawaja considered the surgery as a last resort was reasonable. Dr Al Khawaja said the type of surgery proposed helped two thirds of patients although one third did not get any help.

Dr Al Khawaja disagreed with the opinion given by the medicolegal expert qualified by the respondent, Dr Robert Breit, stating:

“I disagree with Dr Breit because Mr Noor is down because of his pain and his symptoms, and he has never had symptoms before. Mr Noor was a very active person and very intelligent. Mr Noor tried everything possible, and he was compliant with the treatment options. Because of that, I think surgery is reasonable to try, but I cannot guarantee it will make any difference.”

Dr Al Khawaja said the surgery may not have a positive impact on the applicant but was the only option left. Because the injection had helped him significantly at the L5/S1 level
Dr Al Khawaja thought there was a good chance for the surgery to help. The applicant always came to Dr Al Khawaja with radiculopathy and lower back pain.

Dr Breit

The respondent relies on a medicolegal report prepared by orthopaedic surgeon,
Dr Breit, dated 23 March 2021.
Dr Breit took a history of the injurious event but noted that the applicant could not recall the details of his treatment because his mind was cloudy and he was having problems with his memory. Dr Breit noted that the applicant appeared to have seen Dr Farey who had recommended an injection which was said not to provide any benefit. The applicant also had physiotherapy, chiropractic treatment and exercise physiology. The applicant was reviewed by Dr van Gelder and came under the care of Dr Al Khawaja. There were two injections but the applicant was unable to recall which provided any benefit and even then it was only about 30% for a short time. Dr Al Khawaja had recommended an anterior and posterior fusion and the applicant stated that he would do “whatever makes him better”.
The applicant complained of low back pain radiating into the buttocks more left than the right. There was left leg pain going from the buttock to the lateral upper thigh, posterior distal calf and distal anterior compartment as well as the bottom of the foot. The applicant complained of numbness in the bottom of the foot.
Dr Breit noted that there were a large number of MRIs dating from 1 May 2018 to 22 May 2020. Dr Breit commented:
“There is no change throughout these investigations which show congenital narrowing with short pedicles and a left lumbosacral posterolateral tear associated with a broad protrusion touching the left S1 nerve root but it isn’t displaced.”
Dr Breit diagnosed a lumbosacral disc lesion with non-verifiable radicular complaints associated with “significant maximisation and non-organic complaints”.
Asked whether the surgery proposed by Dr Al Khawaja was reasonably necessary treatment, Dr Breit responded:
“It is not reasonably necessary because this gentleman does not have evidence of radiculopathy, he has multiple non-organic signs and is not likely to gain any benefit. The literature shows that where there is maximisation and where there are psychological issues (claimed), the prospects of improvement in most operations is extremely poor. The lumbar spine, comes from a baseline of 80% poor results.”
Asked whether there was any alternative treatment considered reasonably necessary,
Dr Breit responded:
“In my opinion until such time as his abnormal illness presentation and maximisation has resolved, no imaginable treatment for his physical complaints is likely to provide any benefit.”
Dr Breit said the applicant had multiple Waddell’s signs with a negligible movement, pain on pseudo-rotation, variation in straight leg raising and non-anatomic sensory loss.

Applicant’s submissions

Ms Grotte submitted that the dispute arose from the opinion of Dr Breit that the surgery proposed was not reasonably necessary.
Dr Breit gave the opinion that the surgery was not reasonably necessary because the applicant did not have evidence of radiculopathy, had multiple non-organic signs and was not likely to gain any benefit from the procedure.
No alternative treatment was proposed by Dr Breit. Rather, he considered there was no imaginable treatment for the applicant’s physical complaints which was likely to provide any benefit.
Ms Grotte submitted that the Commission should not rely on that opinion and prefer the applicant’s medical evidence, particularly that from his treating neurosurgeon.
Ms Grotte observed that there was evidence before Dr Breit of a disc protrusion. Dr Breit applied a generalisation that prospects of improvement would be poor but gave no explanation as to why that generalisation should apply to the applicant.
The psychological symptoms experienced by the applicant related to the pain that had been present for three years now. Despite treatment, the applicant’s pain had persisted and the surgery was now the last resort.
Ms Grotte referred to the authority in Diab v NRMA Ltd[1], and submitted that Dr Breit’s proposition that there were poor prospects of improvement was a generalisation without explanation or analysis.
[1] [2014] NSWWCCPD 72.
Ms Grotte referred to the applicant’s statement evidence and submitted that Dr Breit had not taken account the seriousness of the accident, the applicant’s physical disabilities and the multiple modes of treatment attempted.
Ms Grotte referred to the MRI evidence showing possible irritation and impingement of the exiting left L5 nerve root.
Ms Grotte noted that Dr Farey had also given the opinion that the nerve root was not compressed or displaced but the annular tear did abut the nerve root. The applicant was diagnosed by Dr Farey as having an irritative and compressive left S1 radiculopathy secondary to annular disc protrusion. Dr Farey related the applicant’s symptoms to the injury at work. Ms Grotte submitted that Dr Farey’s opinion stood in contrast to that of Dr Breit.
Ms Grotte noted that Dr van Gelder also reported that the MRI evidence showed a left posterolateral annulus tear and disc bulge at LS/51 abutting but not compressing the S1 nerve origin. The clinical history recorded by Dr van Gelder referred to back pain and sciatica. Dr van Gelder commented that the applicant did not appear to have maladaptive pain behaviour.
Ms Grotte submitted that Dr Breit had written the applicant off as someone who would not improve. He suggested that there was abnormal illness behaviour without proper engagement with the applicant’s evidence, the nature of the injury or the past treatment undertaken.
Ms Grotte noted Dr Farey had not advised the applicant to undergo any surgical procedure at this time as it was unlikely to provide any benefit. Dr Farey recommended the applicant continue with conservative treatment.
The applicant’s evidence was that he did seek conservative treatment for both his physical pain and mental condition. These were matters considered by Dr Al Khawaja in recommending surgical treatment as a last resort.
Ms Grotte referred to Dr Al Khawaja’s reports and submitted that he had not jumped to surgery. Dr Al Khawaja attempted to locate the source of applicant’s pain and attempted alternative treatments. Injections had helped the applicant but just for very short period of time. The applicant’s condition has settled temporarily after the nerve block and the applicant wished to proceed with surgical intervention because he could not keep going the way he was. Dr Al Khawaja reported that the applicant had a very good understanding of his condition and was willing to undergo surgical intervention.
Ms Grotte submitted that the Commission would have no trouble preferring Dr Al Khawaja to Dr Breit who only saw the applicant once. Dr Breit dismissed the applicant’s psychological symptoms as maximisation without applying any analysis or trying to understand the situation.
The treating surgeon had considered the various treatments undergone over a number of years and the investigations and concluded that surgery had potential to treat the condition and improve the applicant’s quality of life. The surgery was not unusual or costly. The treatment proposed was not perfect but did not have to be. It was intended to deal with the applicant’s symptoms and was a procedure generally accepted by medical experts as effective in doing so.
With regard to Dr Kumar’s nerve conduction studies, Ms Grotte submitted that although no motor radiculopathy was found, Dr Al Khawaja had explained that this did not mean there was no radiculopathy.

Respondent’s submissions

Mr McMahon acknowledged that the respondent accepted the injury to the applicant’s lumbar spine but said there was a dispute between Dr Al Khawaja and Dr Breit with regard to the proposed treatment.
Mr McMahon submitted that the applicant’s present treatment was limited to consultations with his general practitioner, a psychologist and a psychiatrist and a medication regime. The applicant was undertaking no active treatment to minimise the symptoms complained of.
The applicant had undergone multiple MRI and CT scans and Dr Farey had given the opinion that the applicant’s condition was not suitable for surgical treatment.
Mr McMahon noted that Dr van Gelder in his report of 5 November 2018 also considered that the applicant was not suitable for neurosurgical treatments except as a last resort.
Mr McMahon referred to the records of Dr Kumar. The applicant was undertaking ongoing physiotherapy and taking paracetamol and nonsteroidal anti-inflammatories. The applicant was not keen on a referral to a pain management specialist and was also not keen on further injections. Dr Kumar considered that there was no immediate indication for surgery. Nerve conduction studies to the leg were normal. Needle EMG of the left leg was also normal and there was no evidence of motor radiculopathy.
Mr McMahon submitted that the radiological and other treating medical evidence revealed no evidence of nerve root compression to justify the surgery recommended by Dr Al Khawaja after flip flopping and changing his mind.
Although the applicant had been referred to Dr Ramachandran, Mr McMahon submitted that there was no evidence that a pain management program had been undertaken.
Dr Ramachandran had referred the applicant to a moderate intensity pain program at Westmead Hospital.
Mr McMahon observed that there had been no investigations of the applicant’s lumbar spine since May 2020. Although the applicant presented with increasing pain, no doctor had identified significant compression of the nerve root that might warrant surgical intervention. Mr McMahon submitted that Dr Al Khawaja had not provided an explanation as to the change in his opinion or the reasons why he considered surgery was now indicated. The surgery proposed was a complex and risky surgery to perform in a relatively young man.
Mr McMahon submitted that Dr Al Khawaja was alone in making findings possible pressure on the left L5 nerve root. The surgery was not a last resort as not all available treatments had been attempted. The applicant had not been compliant with the treatment options suggested by Dr Ramachandran.
A comparison between the applicant’s subjective complaints and the objective investigations revealed an absence of pathology to indicate that fusion was an appropriate treatment.
Mr McMahon compared the facts of the present case to the arbitral and presidential decisions in Young v Vietnam Veterans Keith Payne VC Hostel Limited[2] (Young) and submitted that there should be an award for the respondent.
[2] [2020] NSWWCCPD 66.

Applicant’s submissions in reply

With regard to the decisions in Young, Ms Grotte submitted that each case must turn on its own facts and the Commission was not bound by the decisions of other members.
Ms Grotte submitted that the facts in this case were distinguishable from those in Young. The treating surgeon in that case had repeatedly stated that surgical intervention was not recommended. There were also inconsistent opinions between the treating surgeon and the worker’s forensics specialist with regard to the source of the applicant’s pain.
In the present case, there was evidence of persisting radiculopathy, S1 nerve irritation and consistent complaints of left leg numbness and pain. The proposal for surgery was based on radiological evidence, conservative treatment over a number of years and evidence from the injection to the L5/S1 level that it was the source of pain. Conservative treatment had been exhausted and provided only temporary relief. There was no ambiguity or uncertainty as to the source of symptoms as there was in Young.
Ms Grotte submitted that the applicant had lived with pain and other symptoms for many years and tried multiple modalities of treatment.

Ms Grotte noted that Dr Ramachandran had referred the applicant to Dr Al Khawaja for consideration of surgical treatment prior to considering a group pain management program.

Ms Grotte observed that Dr Kumar had seen the applicant early on. There were references to neuropathic pain and radiological evidence of nerve irritation in his reports.
Ms Grotte submitted that it was unfair to characterise Dr Al Khawaja as “flip-flopping”.
Dr Al Khawaja did not rush to surgery but underwent a process leading to a final conclusion that the surgery proposed was appropriate. Dr Al Khawaja had provided extensive and cogent reasons for the surgery and why it ought not be forborne.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act.
Section 60 of the 1987 Act relevantly provides:
“(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).”
It is the applicant who bears the onus of establishing on the balance of probabilities that proposed surgery is reasonably necessary as a result of the accepted injury on 24 April 2018. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[3] 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 [1 injury to the applicant’s right ankle and her cervical spine. 940] HCA 20; (1940) 63 CLR 691 at 712.”
[3] [2008] NSWCA 246.
In the present case, the causal element of s 60 is not in dispute. There is, however, a dispute as to whether the treatment proposed is reasonably necessary.
What constitutes reasonably necessary treatment was considered in the context of s 10 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[4] where Burke CCJ stated:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[4] (1986) 2 NSWCCR 32 (Rose).

Further, His Honour added:

“1. Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2. However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.

3.      Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.      In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”

His Honour considered the relevant factors relating to reasonably necessary treatment under s 60 of the 1987 Act in Bartolo v Western Sydney Area Health Service[5] and stated:

“The question is should the patient have this treatment or not. If it is better that he has it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”

[5] [1997] NSWCC 1.

In Diab v NRMA Ltd[6], Roche DP provided a summary of the relevant principles as follows:
[6] [2014] NSWWCCPD 72.

“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.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”[7]
[7] At [88] to [90].

Deputy President Roche commented further[8]:
“Reasonably necessary does not mean “absolutely necessary” (Moorebank at [154]). If something is “necessary”, in the sense of indispensable, it will be “reasonably necessary”. That is because reasonably necessary is a lesser requirement than “necessary”. Depending on the circumstances, a range of different treatments may qualify as “reasonably necessary” and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is “reasonable and necessary”, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.”
[8] At [86].
Applying the principles above to the circumstances of this case, it is noted that the applicant’s treating neurosurgeon, Dr Al Khawaja, and his general practitioner, Dr Abdalla, have both given opinions that the surgery proposed by Dr Al Khawaja is reasonably necessary as a result of the work injury.
Weighing against their opinions is the medicolegal opinion from the expert qualified by the respondent, Dr Breit. The respondent has suggested that the opinion provided by Dr Breit is consistent with the opinions expressed by the applicant’s previous treating practitioners, including, Dr Farey, Dr Kumar and Dr van Gelder.
In considering the competing opinions, it is useful to have regard to the history of treatment undertaken by the applicant since the injurious event on 24 April 2018.
It is clear from my review of the treating medical evidence that the applicant has consistently reported symptoms of pain at his lower back radiating down his left leg as well as some tingling and numbness in the left leg and foot. Dr Abdalla first saw the applicant soon after the injurious event and he has reported that the applicant’s symptoms have remained the same since he first saw the applicant.
Whilst they have not found any “significant nerve compression”, as noted by the respondent, the treating practitioners have consistently found radiological and clinical explanations for the symptoms reported by the applicant. Dr Farey who saw the applicant first in June 2018 found the applicant’s pain in his lower limb clearly showed an S1 distribution with less symptoms in the L5 distribution.
MRI imaging has consistently been reported to show an annular tear with minor annular protrusion abutting the left L5 and S1 nerve. Dr Farey accepted that the applicant had irritative and compressive left S1 radiculopathy secondary to the annular disc protrusion.
Dr van Gelder also found the applicant’s symptoms correlated with the minor disc injury at L5/S1. Dr Kumar also assessed that the disc bulge was probably causing the applicant’s pain and a mild abutment on the S1 nerve root was causing neuropathic pain in the left leg.
While Dr Farey, Dr van Gelder and Dr Kumar all expressed the opinion that there was no place for surgical intervention at the time of their assessments of the applicant, their opinions can be differentiated from that given by Dr Breit insofar as they saw a relationship between the reported symptoms and the pathology revealed on the MRI scans. Despite acknowledging the large number of MRIs showing a tear associated with a broad protrusion touching the left S1 nerve root, Dr Breit did not accept that this pathology explained the applicant’s symptoms. Rather, Dr Breit found the applicant presented with significant maximisation, non-verifiable radicular complaints and multiple non-organic signs.
Dr Breit’s view that the applicant presented with abnormal illness behaviour is in contrast to the observation of Dr van Gelder that the applicant did not appear to have maladaptive pain behaviour. The treating medical evidence suggests that the applicant was active in engaging with a range of conservative treatment modalities. Dr Ramachandran, for example, noted that the applicant was actively engaged with and maintaining appointments with his physiotherapist, clinical psychologist and psychiatrist. Dr van Gelder also noted that the applicant had a good understanding of active treatment approaches and pain management strategies.
The treating medical evidence indicates that the applicant was generally compliant with the recommendations of Dr Farey, Dr van Gelder and Dr Kumar. The applicant trialled injections under the direction of Dr Farey. The applicant persisted with physiotherapy, paracetamol, NSAIDS and Cymbalta. At times the applicant had undertaken chiropractic treatment and hydrotherapy. The applicant consulted pain specialist Dr Ramachandran who recommended further conservative treatment and a further injection with little benefit.
Throughout this period, and notwithstanding the extensive conservative treatment, the applicant’s physical symptoms persisted. In January 2020, Dr Ramachandran referred the applicant for neurosurgical evaluation by Dr Al Khawaja prior to referring him to a group pain management program. Although Dr Al Khawaja also initially saw no role for surgical intervention, he continued to investigate the applicant’s symptoms. An L4/5 facet and left L4 nerve injection provided little relief. An injection to the left L5/S1 facet and L5 nerve root, however, did provide the applicant with greater relief for a longer period of time.
Dr Al Khawaja explained that this injection was of diagnostic value as well as therapeutic value. Given the results, Dr Al Khawaja formed the opinion that the L5/S1 level was the pain generator for the applicant.
Contrary to the respondent’s submissions, I do not construe Dr Al Khawaja to have been flip-flopping with regard to the proper diagnosis or approach to the applicant’s symptoms. Rather his reports show that he took a conservative approach and continued to use a variety of tools to investigate and diagnose the applicant’s condition. Dr Al Khawaja was persuaded by the results of the nerve block at the L5/S1 level, his examination of the most recent MRI scans, the results of SPECT study and the applicant’s persisting symptoms despite compliance with the conservative treatment options provided to him, that the surgery as a last resort was reasonable.
Dr Breit on the other hand has not engaged with the radiological evidence, the results of the nerve block at the L5/S1 level or the treating medical evidence suggesting compliance with the conservative treatment options offered to the applicant. Rather, Dr Breit has relied on unreferenced literature indicating that where there is maximisation and psychological issues the prospect of improvement in most operations is extremely poor. I accept that the applicant’s characterisation of this opinion as a generalisation is appropriate.
Although the nerve conduction studies undertaken at different points in time have been reported as normal, a number of the applicant’s treating doctors have accepted that the applicant presented with signs of radiculopathy or neuropathic pain. Whilst the pathology shown on the MRI scans does not appear particularly severe, the applicant’s treating doctors all appear to have accepted that it provided an explanation for the applicant’s symptoms. Similarly the treating doctors have all initially recommended a conservative approach to the applicant’s condition. After three years of conservative treatment, however, the applicant’s symptoms remained the same. It is unknown whether Dr Farey, Dr van Gelder and Dr Kumar would have maintained the opinions expressed by them early in the applicant’s care as to the role for surgical intervention given the subsequent history.
Both Dr Al Khawaja and Dr Abdalla have given recent opinions explaining why at the present time they consider the surgery proposed by Dr Al Khawaja to be reasonably necessary. Those opinions are explained by reference to the applicant’s consistent complaints of symptoms, the radiological evidence and the results of the different treatment modalities attempted.
The respondent has observed in its submissions that the applicant has not recently undertaken active treatment to minimise his symptoms and his present treatment was limited to consultations with his GP, psychologist and psychiatrist as well as a medication regime. There can be no doubt, however, that the applicant has attempted a range of active treatments for his symptoms in the past. The evidence indicates that such treatment was of little benefit and I accept the views of Dr Abdalla and Dr Al Khawaja that those options have been exhausted.
It may be noted that although Dr Ramachandran referred the applicant to be part of a moderate intensity pain program in mid-2020, his report of 19 August 2020 indicates that he did so on the understanding that Dr Al Khawaja’s neurosurgical review recommended ongoing conservative management.
Although I also accept the respondent’s submission that the most recent radiological investigation of the lumbar spine was performed in May 2020, it must be noted that the applicant has undergone multiple MRI scans over the course of the last three years which have been reported to show little change in the pathology. There is nothing in the evidence to suggest any more recent improvement or change in the applicant’s symptoms.
For all of the reasons above, I accept that the circumstances of the current case are distinguishable from those in Young to which the respondent has referred.
Dr Al Khawaja has explained that the particular treatment proposed is appropriate and potentially effective in relieving the applicant’s symptoms. No alternative and potentially effective treatments are currently suggested that have not already been trialled.
Dr Ramachandran’s referral of the applicant to a pain management program was made prior to Dr Al Khawaja’s recommendation for surgical treatment and on the assumption that
Dr Al Khawaja recommended ongoing conservative treatment. Whilst there is potential for a poor outcome, Dr Al Khawaja has explained why, on the basis of the L5/S1 injection results there is a good chance for the surgery to help alleviate the applicant’s symptoms. No submission was made that the costs of the treatment as quoted by Dr Al Khawaja were unusual or unreasonable. It is noted that the applicant’s general practitioner is supportive of the surgery proposed and has also expressed the opinion that it is reasonably necessary treatment at the present time in all of the circumstances.
Having carefully weighed the evidence, I am satisfied that the L5/S1 anterior lumbar interbody fusion and posterior fusion with decompression surgery proposed by
Dr Al Khawaja is reasonably necessary as a result of the injury on 24 April 2018.
There will be an order that the respondent is to pay the costs of and incidental to the proposed surgery in accordance with section 60 of the 1987 Act.

[2021] NSWPIC 346

14 September 2021