Panuccio v ZWF Act Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Panuccio v ZWF Act Pty Ltd [2024] NSWPIC 615
APPLICANT:	Antonino Panuccio
RESPONDENT:	ZWF Act Pty Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	4 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for compensation pursuant to section 60 of the Workers Compensation Act 1987 for proposed lumbar surgery; accepted lumbar injury; whether the proposed surgery is reasonably necessary as a result of that injury; relatively mild radiological findings; whether inconsistencies in presentation; where applicant had undergone extensive conservative management of symptoms; Held – the proposed surgery is reasonably necessary as a result of the injury; respondent to pay the costs of and incidental to the surgery.
DETERMINATIONS MADE:	The Commission determines: 1. The L4/5 disc replacement and L5/S1 anterior interbody fusion surgery proposed by Dr Yanni Sergides is reasonably necessary as a result of the injury on 3 July 2019. The Commission orders: 2. The respondent to pay the costs of and incidental to the surgery proposed by Dr Sergides on production of accounts, receipts and/or Medicare notice of charge, in accordance with s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Antonio Panuccio (the applicant) was employed by ZWF ACT PTY LTD (the respondent) as a concreter.
It is not in dispute that, on 3 July 2019, the applicant sustained an injury to his lumbar spine while lifting a sheet of mesh in preparation for a concrete pour.
The applicant made a claim for compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the costs of and incidental to a L4/5 disc replacement and L5/S1 anterior interbody fusion surgery proposed by Dr Yanni Sergides.
On 22 November 2022, the claim was disputed by the respondent’s insurer in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on the ground that the treatment was not “reasonably necessary” as a result of the injury on 3 July 2019. That decision was maintained following internal review in a further notice issued on 3 October 2023.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute in the Personal Injury Commission (Commission) on 28 August 2024. The applicant seeks orders pursuant to s 60 of the 1987 Act in respect of the surgery proposed by Dr Sergides.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 28 October 2024 in Sydney. 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.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the L4/5 disc replacement and L5/S1 anterior interbody fusion surgery proposed by Dr Sergides is reasonably necessary as a result of the injury on 3 July 2019 pursuant to s 60 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.[1]
[1] The parties agreed during the conciliation conference that cl 44 of the Workers Compensation Regulation 2016 did not prohibit the admission of the reports of Dr Robert Breit dated 5 June 2023 and 19 July 2023 on the basis that they were obtained for the purposes of a separate dispute.
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 28 August 2024.
The applicant stated that he had no medical conditions or injuries to his back before the subject injury.
The applicant described the incident on 3 July 2019 as involving a sudden pain in his back when lifting the mesh sheet, followed by a popping sensation. The applicant felt as if his back froze and he began to feel pain radiate from his lower back into his right buttock and hamstrings.
The applicant described the subsequent treatment of his injury. The applicant recalled being driven to his general practitioner who advised the applicant to attend the Emergency Department at John Hunter Hospital. The applicant was reviewed and given a medical certificate for seven days’ rest.
The applicant returned to his general practitioner with pain shooting pain into his hamstrings. The applicant was prescribed Mobic and Panadeine Forte and advised to rest.
The applicant began attending physiotherapy, which he found painful as he had limited range of movement. On 8 July 2019, the applicant was referred for an MRI scan which showed a disc protrusion and annular tear.
The applicant continued to be treated with physiotherapy and regular massages. Although there were some small improvements in his pain level, the applicant was referred to see a neurosurgeon, Dr Sergides, whom he first saw on or around 2 September 2019.
Dr Sergides recommended that the applicant continue with conservative treatment including physiotherapy and chiropractic treatment. The applicant continued with conservative treatment as recommended by Dr Sergides but did not feel he was making much improvement.
The applicant attempted to return to work but could not continue as his pain was unbearable.
The applicant returned to see Dr Sergides in December 2019. The possibility of surgery was discussed but the doctor advised the applicant to continue with conservative management for the time being.
In early 2020, the applicant consulted a pain specialist, Dr Nathan Taylor, who performed a medial branch block in February 2020. The injection did not have any impact on the applicant’s pain levels. A steroid injection was performed at L5/S1 by Dr Taylor on 12 June 2020 which provided some relief before gradually returning to the original level.
On 3 August 2020, the applicant returned to see Dr Sergides who recommended a lumbar discogram to further assess whether surgery was suitable. The discogram was performed on 17 September 2020 and caused the applicant excruciating pain. Dr Sergides advised that the applicant’s response to the procedure indicated that surgery would likely help his condition. The applicant was eager to proceed with the operation, however, it was not approved by the insurer.
The applicant pursued physiotherapy aggressively over the years, attending consultations twice a week. The applicant performed band resistance training and machine training to prevent his lower back and leg muscles from wasting. The applicant was no longer able to lift free weights at the gym or play soccer as he had previously.
The applicant expressed the view that he had exhausted all viable treatment options, consuming huge amounts of time, money and effort. Surgery was now the only option for him to regain any sort of normal life.
The applicant had been prescribed Mobic and Endone. The applicant continued to take Mobic to go to sleep as well as Panadol, Nurofen and Panadeine Forte daily.

Radiological evidence

The report of an MRI of the lumbosacral spine performed on 12 July 2019 described a small central disc protrusion without any significant nerve root compression at L4/5. At L5/S1 there was some disc desiccation and a central disc protrusion with peripheral annular tear. There was no significant nerve root compression at this level.
An MRI of the lumbar spine performed on 13 March 2020 showed a small central broad-based posterior disc bulge at L4/5. Moderate bilateral facet joint hypertrophy was noted. There was no significant canal or foraminal narrowing identified. At L5/S1 there was a broad-based posterior disc bulge with mild bilateral facet joint hypertrophy and no significant canal or foraminal narrowing. The findings were described as “mild background degenerative changes”.
The report of a lumbar discogram performed on 17 September 2020 indicated that the procedure was performed without sedation. The applicant demonstrated a high pain tolerance. At L4/5 the applicant described pain moderate in severity and typical of some less common symptoms. At L5/S1 the pain was more severe at 9/10 and most typical of usual symptoms.
The report of a post discogram lumbar CT scan performed on the same day confirmed that contained posterior midline annular tears were present at L4/5 and L5/S1.
An MRI performed on 29 April 2021 was reported to show little change since the previous examination.
A further MRI was performed on 15 March 2024 which was reported to show:
“L4/5: There is a small broad-based central disc bulge which is causing minor indentation on the anterior thecal sac. Severe bilateral facet joint hypertrophy is also noted. There is no significant canal stenosis. Mild right and moderate left foraminal narrowing, without high-grade neural compression. Potential irritation of the exiting left L4 nerve root.
L5/S1: Small broad-based posterior disc bulge and moderate bilateral facet joint hypertrophy is noted. No significant canal stenosis. Mild bilateral foraminal narrowing is present.”

Dr Sergides

The applicant was first seen by neurosurgeon, Dr Yanni Sergides, on 2 September 2019. Dr Sergides took a history of the injury that was consistent with the applicant’s evidence. Dr Sergides reviewed the applicant’s MRI scan and noted that there was signal change within the L4/5 and L5/S1 discs. The changes at L5/S1 were more significant and there was an associated annular tear. There was a disc bulge at both levels, which at L4/5 appeared to abut the traversing L5 nerve root without obvious neural compression. Dr Sergides recommended that the applicant continue with conservative management and avoid exacerbations for the next three or four months. If his symptoms did not significantly abate, they could discuss further options.
At further consultations on 3 December 2019 and 25 February 2020, Dr Sergides recommended further conservative treatment including further scans and review by a pain specialist, Nathan Taylor.
On 25 March 2020, Dr Sergides wrote to the applicant’s general practitioner noting that the applicant continued to suffer significantly with his back as well as pain in his buttock and hamstring. The applicant was relying on analgesia and conservative measures had not helped. Dr Sergides expressed the view that it was reasonable to consider intervention in the form of an anterior lumbar interbody fusion at L5/S1 and disc replacement at L4/5.
On 3 August 2020, Dr Sergides reported that the applicant had undergone 10 months of conservative management and a number of injections with Dr Taylor, the last being an L5/S1 transforaminal injection. None of the percutaneous techniques or conservative measures had improved the applicant’s pain. He had back pain and quite severe left leg pain. The applicant was advised to undergo a discogram to determine whether the proposed surgery was likely to improve the applicant’s symptoms.
Dr Sergides responded to a series of questions from the insurer on 12 November 2020. Dr Sergides summarised his involvement in the applicant’s treatment. Dr Sergides noted that the discogram was strongly positive at L5/S1 and moderately positive at L4/5. All other treatment options had been exhausted. The surgery was expected to significantly reduce the applicant’s back pain and hamstring pain, therefore improving his quality of life.
Dr Sergides reported on 24 March 2021 that the applicant remained in severe pain and even the simplest things caused significant discomfort.
On 1 June 2021, Dr Sergides reported that the applicant continued to struggle with severe pain in his lower back going to the iliolumbar region bilaterally.
In a report to the applicant’s general practitioner on 8 September 2021, Dr Sergides reported that the applicant’s symptoms, in particular the sciatic pain, had become much more severe. The applicant had complied with all forms of conservative therapies and had given things a long time to see if they improved but unfortunately they had deteriorated. Dr Sergides did not think the applicant would improve unless direct action was taken by means of surgery.
Dr Sergides prepared a medico-legal report for the applicant’s legal representative on 3 May 2024. Dr Sergides noted that the applicant had undergone a huge amount of conservative treatment with physiotherapists, chiropractors and gym work. The applicant had been referred to a pain physician who performed injections which did not help the applicant’s symptoms. The applicant’s symptoms were consistent with discogenic pain. They were worse on sitting and worse with any weight held out in front of him. The applicant had developed quite severe left leg pain which was radicular in nature.
Dr Sergides noted that the applicant had been referred for a discogram with an extremely experienced radiologist in September 2020. With the results of the discogram and worsening symptoms, the applicant had been offered surgery.
Dr Sergides addressed the medico-legal reports prepared for the insurer by Dr Vidyasagar Casikar. With regard to the suggestion that the applicant see a psychiatrist and have ongoing conservative treatment, Dr Sergides noted the applicant had undergone 4½ years of conservative treatment without a good outcome.
Dr Casikar appeared to accept that spinal fusion would be an accepted method of treatment if the applicant was not under WorkCover. The applicant was a patient like any other and his symptoms were genuine. He had failed conservative management and had axial and radicular symptoms with a good radiological basis for the surgery and positive discogram. It appeared Dr Casikar had not reviewed the MRI scans.
Dr Sergides said that spinal instability was not the only indication for a spinal fusion. In any event, a disc replacement was proposed at L4/5 rather than a fusion. Dr Casikar referred to adjacent segment disease in the context of spinal fusion. Dr Sergides reiterated that replacement was proposed at L4/5, not a fusion. In young patients with adjacent healthy discs there was a particularly low risk of adjacent segment disease. The fusion was not proposed at the infra adjacent L3/4 level.

Dr Taylor

Records from pain medicine specialist, Dr Nathan Taylor, are also in evidence. The applicant was first seen by Dr Taylor on 14 January 2020. Dr Taylor noted the history of a “pop” and sudden onset of low back pain while lifting a heavy piece of mesh. Dr Taylor noted that the applicant had been seen by Dr Sergides and his MRI showed disc changes at L4/5 and L5/S1 with possible contact of the L5 nerve root but no neural compression.
The applicant reported predominately right-sided but bilateral lower back pain as well as sharp spasming and radiating pain down to the mid hamstring. The applicant had a cautious but not antalgic gait.
Dr Taylor agreed that the applicant presented with persistent mechanical lumbar pain that was likely discogenic in nature. Dr Taylor noted the changes on his MRI were minor and put forward the option of diagnostic medial branch blocks.
The medial branch blocks to the L4 to S1 facet joints were performed on 10 February 2020. On 27 April 2020, Dr Taylor noted that the applicant had a negative response to diagnostic medial branch blocks. It was noted that the applicant was reluctant to consider spinal surgery.
The applicant was reported to have been diligently trying to upgrade his physical tolerances and had returned to light activities at the gym but started experiencing increasing pain down his leg. Dr Taylor commented,
“I put forward the option of a left L5/S1 transforaminal steroid injection in the hopes that helping any discogenic pain or any pain due to underling nerve irritation. I know there is no significant compression but there is likely neural contact.”
The applicant underwent a left L5/S1 foraminal steroid injection on 12 June 2020. On 9 July 2020, Dr Taylor reported that the applicant had very good relief following the injection but had a gradual return of his symptoms. Dr Taylor expressed the view that surgery would be reasonable if the applicant’s pain did not improve or his symptoms became intolerable.

Dr Casikar

The respondent relies on medico-legal reports prepared by neurosurgeon, Dr Vidyasagar Casikar, dated 26 November 2021 and 16 November 2022.
In his first report, Dr Casikar took an uncontroversial history of the injury. Dr Casikar recorded that the applicant’s treatment had included Panadol and Panadeine Forte, physiotherapy and chiropractic treatment. It was noted that the insurer had stopped paying for physiotherapy as it was not improving the applicant’s symptoms. Dr Casikar observed that the applicant had undergone three cortisone injections that did not help him.
Dr Casikar said the MRI of 29 April 2021 showed very moderate changes consistent with the applicant’s age. It was noted that the applicant had undergone a discogram. Findings on examination were noted.
Dr Casikar diagnosed a soft tissue injury to the back and a chronic pain syndrome.
Dr Casikar said the applicant’s symptoms in the legs did not indicate a definite nerve root involvement because the pain only extended to the knees and was alternating. The applicant’s lumbar spine did not show any major degenerative changes.
Dr Casikar said the surgery proposed by Dr Sergides was difficult to support. A spinal fusion was likely to have a poor outcome, particularly given the applicant’s previous history of depression. The possibility of a failed back syndrome was high.
In response to a specific question as to whether the surgery was reasonably necessary, Dr Casikar stated that it was not:
“There is no evidence to indicate spinal instability. The degenerative changes are not significant. They indicate mainly age-related changes. The neurological examination is normal.”
Asked about alternative treatment, Dr Casikar recommended vocational redirection. Dr Casikar expressed the belief that the soft tissue injury had recovered and the applicant was fit to do normal hours of alternative employment.
Dr Casikar said the expected outcome of the surgical procedure was likely to be very poor based on studies of spinal fusions in workers compensation settings.
In his supplementary report, Dr Casikar noted that he had been asked to comment on an updated MRI but it had not been attached.
Dr Casikar suggested psychological input and treatment from a pain specialist as alternatives to surgery.
Dr Casikar reiterated his view that the outcome of the surgical procedure was likely to be poor noting numerous reports indicated that spinal fusion in workers compensation patients had a very poor outcome.
Dr Casikar did not believe surgery had capacity to relieve the effects of the injury. Dr Casikar expressed the belief that the injury had resolved and the present problems were due to degenerative disease and pain syndrome. Non-surgical management would have a better outcome.
Dr Casikar did accept that spinal fusion was an accepted method of treatment of chronic degenerative disease of the lumbar spine, however, in the context of workers compensation the outcome was extremely poor.
Dr Casikar noted the applicant’s young age and said that spinal fusion at his age was not a very accepted method. If the applicant were to get a spinal fusion now, he would definitely have an adjacent segment disease in a few years.

Dr Breit

The respondent additionally relies upon medico-legal reports prepared by orthopaedic surgeon, Dr Robert Breit, dated 5 June 2023 and 19 July 2023.
In his first report, Dr Breit took a history of the injury and subsequent treatment including the injections by Dr Taylor. Dr Breit noted correspondence from Dr Taylor indicating benefit. The results of the discogram were also noted.

The applicant reported lower back pain radiating to the left leg posteriorly to the knee and sometimes lower. The applicant had pins and needles in the posterior aspect of the calf as well as the whole of the foot. He reported the leg giving way on a number of occasions.
On examination, Dr Breit noted that the applicant had very good leg muscles which he considered was unusual given the claimed level of pain and disability. Dr Breit’s other findings were recorded. MRIs from 12 July 2019, 29 April 2021 and 6 June 2022 were noted.
In making an assessment of permanent impairment, Dr Breit commented that although there was back pain, there was no spasm and multiple positive Waddell’s signs. There was equivocal subtle loss of left ankle reflex, but this did not constitute evidence of radiculopathy in the absence of changes suggestive of nerve root compression or impingement, no wasting, non-anatomical sensory changes and global weakness.
In his supplementary report, Dr Breit expressed the view that the outcome of surgery would be “very unpredictable” given the applicant’s abnormal illness behaviour. Dr Breit saw no place for passive therapies such as physiotherapy. The applicant could maintain strength through a home based spinal exercise program.

Applicant’s submissions

The applicant referred the Commission to the description of the injurious event in his written statement.
The applicant noted that the report of the MRI scan taken within a few weeks of the event did not show significant nerve root compression. There were, however, a series of MRIs and the most recent report noted minor indentation on the anterior thecal sac, severe bilateral facet joint hypertrophy, mild right and moderate left foraminal narrowing and potential irritation of the exiting left L4 nerve root.
The applicant’s statement summarised the extensive conservative treatment he had undergone and its effects on his symptoms. The respondent appeared to agree that persisting with physiotherapy would no longer assist in resolution of the applicant’s symptoms. The applicant had been treated with a range of medications including Mobic and had undergone injections on a number of occasions.
The applicant referred the Commission to the report from Dr Sergides to his legal representative. Dr Sergides had seen the applicant on 15 occasions since September 2019. As the treating doctor, he was very well placed to know the history of the applicant’s symptoms and evaluate the veracity of his complaints.
Dr Sergides observed that the applicant had undergone a huge amount of conservative treatment, all of which was unhelpful. The applicant’s symptoms remained consistent with discogenic back pain.
Dr Sergides highlighted the results of the discogram performed by Dr Kos and indicated that those results, together with the worsening of symptoms, had led him to the conclusion that surgery was appropriate.
Dr Sergides commented on Dr Casikar’s opinions. Dr Casikar’s comments about the probability of a poor surgical outcome given the applicant’s status as a WorkCover patient were rightly criticised. Dr Sergides also responded to Dr Casikar’s theory regarding the probability of adjacent disc disease, stating that it was inaccurate. Dr Sergides said the applicant’s prognosis was better with the proposed surgery than with ongoing conservative management which, after four and a half years, had failed. The applicant submitted that Dr Casikar approached the claim from a number of angles, all of which were unconvincing
The applicant noted that Dr Breit’s first report was directed at a claim for lump sum compensation. He suggested that the applicant’s credibility was in issue despite positive signs on examination. Dr Breit did not identify what the Waddell’s signs found by him were. Dr Breit’s reasoning was unexplained and did not ring true given the extensive conservative treatment, 15 consultations with a surgeon and the applicant’s use of his own money to fund his care and treatment.
Dr Breit agreed there was no place for no place for passive therapies in the applicant’s treatment but dismissed active intervention without any proper explanation.
The applicant submitted that he had not rushed into surgical treatment but sought approval for such only after all conservative treatment had been exhausted.

Respondent’s submissions

The respondent referred the Commission to the radiological investigations and noted that they showed only minor or unconvincing pathology that would not justify the surgery. The first MRI showed only a small central disc protrusion with no significant nerve root compression. The investigation was entirely unremarkable.
In the subsequent investigations, the disc bulges were small, the changes were mild. There was no stenosis or neural impingement. The respondent submitted that Dr Sergides had not explained the radiological findings that justified the proposed surgery.
Dr Casikar noted the very moderate changes and diagnosed a soft tissue injury and chronic pain syndrome. Dr Casikar did not support the surgery and his opinion was consistent with the MRI scans. Dr Casikar’s neurological examination was normal. He considered the outcome of surgery would be poor. He noted the absence of significant pathology or clinical findings to support surgery.
The respondent also referred to the reports of Dr Breit, noting that he found inconsistency in the applicant’s presentation. The musculature of the applicant’s legs and normal gait pattern were noted. Dr Breit found no radiculopathy and multiple positive Waddell’s signs.
The respondent submitted that both Dr Casikar and Dr Breit had explained why surgery was not appropriate. The views were consistent with the radiological evidence. They had commented on the lack of pathology and provided reasons for their opinion.
The respondent observed that Dr Taylor had agreed that there was no neural compression. Dr Sergides had not directly identified any pathology to support the surgery. The applicant had not qualified an expert to provide an opinion. The weight of evidence did not favour surgery and an award for the respondent ought to be entered.

FINDINGS AND REASONS

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).”
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)[2] 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.”
[2] (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.”
In Bartolo v Western Sydney Area Health Service[3] his Honour 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.”
[3] [1997] NSWCC 1.
In Diab v NRMA Ltd,[4] Roche DP provided a summary of the relevant principles as follows:
[4] [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’.”[5]
[5] At [88] to [90].
Deputy President Roche commented further:[6]
“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.”
[6] At [86].
There is no dispute in these proceedings that the applicant sustained an injury to his lumbar spine on 3 July 2019. There is, however, a dispute in the medical evidence relied on by each party as to the nature and ongoing effects of that injury. The respondent’s expert, Dr Casikar, diagnosed a soft tissue injury which had resolved. Dr Casikar attributed the applicant’s current presentation to a degenerative condition and chronic pain syndrome. Dr Breit, who was qualified by the respondent in relation to a different claim, similarly found inconsistencies in the applicant’s presentation.
The respondent’s medical evidence stands in contrast to the body of evidence from the applicant’s treating practitioners, Dr Taylor and Dr Sergides. That material reveals that following the injury, which involved a sudden onset of acute pain, the applicant was treated with medication, physiotherapy and chiropractic treatment. Although the report of the MRI investigation performed shortly after the injury described objectively mild pathology, Dr Sergides, a qualified neurosurgeon, reviewed the films himself and found signal change within the L4/5 and L5/S1 discs with an associated annular tear at L5/S1. Dr Sergides also considered that the disc bulge at L4/5 appeared to abut the traversing L5 nerve root.
The applicant followed Dr Sergides’ advice to persist with conservative management and avoid exacerbations. All of the evidence suggests that the applicant was diligent in attending physiotherapy and performing appropriate gym-based exercises. The applicant attended a pain management specialist and underwent diagnostic medial branch blocks. Although these were negative, a L5/S1 foraminal steroid injection performed in June 2020 did provide relief, albeit with a gradual return of the applicant’s symptoms.
By mid 2020, both Dr Taylor and Dr Sergides had expressed the view that it was reasonable to consider surgical intervention, however, a discogram was proposed to determine the likely effectiveness of the surgery. The discogram was moderately positive at L4/5 and strongly positive at L5/S1. A CT scan performed after the procedure confirmed the presence of annular tears at both L4/5 and L5/S1. On the basis of his clinical findings and armed with the discogram and radiological evidence, Dr Sergides recommended the procedure which is the subject of these proceedings.
In his report to the applicant’s legal representatives, Dr Sergides expressed the view that the applicant had exhausted conservative treatment. The surgery was expected to significantly reduce the applicant’s back and hamstring pain and improve his quality of life. The applicant was unlikely to improve without surgical intervention. The applicant had not rushed into the decision to proceed with surgery but had given things a long time and had been compliant with all forms of conservative therapy recommended to him.
The respondent’s submissions at arbitration hearing focused significantly on the apparently mild pathological changes identified in the various MRI reports. Both Dr Casikar and Dr Breit commented on the lack of major changes identified in the MRI reports. I accept that the radiological reports do not reveal any changes suggestive of neural impingement or compression.
Dr Sergides, who appears to be the only expert to have reviewed the images himself did, however, identify signal changes, annular tears and possible contact with the nerve root at L5. Together with the relief of symptoms following the left L5/S1 foraminal steroid injection and the discogram results, Dr Sergides said there was a sound radiological basis to proceed with surgery.
Neither Dr Casikar nor Dr Breit appear to have been armed with the full radiological picture. Their reports do not indicate that the MRI films were viewed and Dr Casikar said in his supplementary report that the most recent MRI results had not been attached with the letter of instruction. Neither doctor addressed the findings of annular tears or nerve root abutment. Although the discogram was acknowledged, neither of the respondent’s doctors commented on the significance of the positive results.
Dr Breit’s view of the applicant’s presentation appears to have been influenced by his observations of the applicant’s leg musculature. The applicant’s evidence, does, however indicate that he was very physically active prior to the work injury and had continued to perform resistance band training and machine training at the gym after the injury to prevent his lower back and leg muscles from wasting.
Although Dr Breit found no evidence of back spasm or radiculopathy at his examination, both Dr Taylor and Dr Sergides’ reports mention these clinical findings. As noted by the applicant, the “multiple positive Waddell’s signs” were not specifically identified by Dr Breit. His view that the applicant had demonstrated abnormal illness behaviour is difficult to reconcile with the evidence from Dr Taylor and Dr Sergides.
Dr Casikar’s opinions have been comprehensively addressed by Dr Sergides. Dr Casikar identified the lack of spinal instability, the history of depression, the workers compensation setting, the applicant’s relatively young age and the possibility of adjacent segment disease as factors weighing against the surgery being reasonably necessary.
Dr Sergides responded that spinal instability was not the only indication for a spinal fusion. At L4/5, a replacement was proposed rather than a fusion. Dr Sergides referred to reports which indicated that in young patients with adjacent healthy discs there was a low risk of adjacent segment disease. Dr Sergides observed that Dr Casikar appeared to accept that the surgery would be appropriate treatment were it not for the workers compensation setting. Dr Sergides commented that the applicant was a patient like any other with genuine axial and radicular symptoms.
Consistently with Dr Sergides’ views, Dr Taylor reported that the applicant had been diligent in trying to upgrade his physical tolerances. He agreed that there was likely neural contact at L5/S1. Dr Taylor also expressed the view, back in July 2020, that surgery would be reasonable if the applicant’s pain did not improve. The applicant’s evidence and the treating reports from Dr Sergides indicate that the applicant’s pain did not improve but rather deteriorated.
After carefully reviewing all of the evidence, I am satisfied that the surgery proposed by Dr Sergides is appropriate medical treatment for the applicant’s spinal condition. I am further satisfied that it is potentially effective and has been accepted by the applicant’s treating specialists as such. Although Dr Casikar and Dr Breit have suggested alternative treatments in the form of psychological therapy, vocational redirection, home based spinal exercise program and input from a pain specialist, I am satisfied that various forms of these treatments have already been attempted and have been unsuccessful in alleviating the applicant’s symptoms. I accept Dr Sergides’ view that there are no available alternative treatments.
Although the respondent’s experts have suggested that the applicant’s presentation is the result of age-related degenerative change, a pain syndrome or abnormal illness behaviour, nothing in the evidence suggests that the applicant’s lumbar spine was symptomatic prior to the work injury or the subject of any previous injury. There is a well documented, sudden, onset of acute symptoms on 3 July 2019, with a progressive deterioration, notwithstanding the comprehensive conservative management of the applicant’s condition. A radiological and clinical basis for the applicant’s symptoms has been identified by his treating specialists and confirmed with positive discogram results. The reports from the respondent’s medico-legal experts do not, in my view, provide a sufficient basis to displace the recommendation from Dr Sergides.

In these circumstances, although the costs of the treatment are significant, I am satisfied that the L4/5 disc replacement and L5/S1 anterior interbody fusion surgery proposed is reasonably necessary as a result of the injury on 3 July 2019.
There will be an order for the respondent to pay the costs of and incidental to the surgery proposed by Dr Sergides on production of accounts, receipts and/or Medicare notice of charge in accordance with s 60 of the 1987 Act.

[2024] NSWPIC 615

4 November 2024