Paratore v Mooravit Pty Ltd t/as Harvey Norman

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Paratore v Mooravit Pty Ltd t/as Harvey Norman [2023] NSWPIC 564
APPLICANT:	Antonio Paratore
RESPONDENT:	Mooravit Pty Ltd t/as Harvey Norman
MEMBER:	Rachel Homan
DATE OF DECISION:	25 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation pursuant to section 60 for the costs of and incidental to a proposed lumbar spine surgery; where pre-existing degenerative pathology; Paric v John Holland (Constructions)Pty Ltd applied; Held – the history provided by the applicant to his treating specialists and medicolegal expert significantly understated the extent and nature of his pre-injury symptoms; material put to the doctors did not represent a “fair climate” for the opinions they expressed; Commission not satisfied that the injury materially contributed to the need for surgery; the applicant failed to discharge his onus.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has not discharged his onus of demonstrating on the balance of probabilities that any need for the spinal surgery proposed by Dr Laurence McEntee is reasonably necessary as a result of the injury on 17 May 2018 pursuant to s 60 of the Workers Compensation Act 1987. 2. The Commission declines to make the orders sought by the applicant.

STATEMENT OF REASONS

BACKGROUND

Mr Antonio Paratore (the applicant) was employed as a salesperson by Mooravit Pty Ltd t/as Harvey Norman (the respondent).
On 17 May 2018, the applicant was in the course of his employment with the respondent when he fell over a trolley whilst carrying a set of boxes. There is no dispute in these proceedings that the applicant sustained an injury to his lumbar spine pursuant to ss 4 and 9A of the Workers Compensation Act 1987 (the 1987 Act) in that event.
On 21 October 2022, the respondent’s insurer received a request from orthopaedic surgeon, Dr Laurence McEntee, seeking approval for the applicant to undergo surgery in the form of an L3-L5 laminectomy.
Liability for the surgery was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 14 November 2022. The insurer determined that the surgery was not reasonably necessary as a result of the injury pursuant to s 60 of the 1987 Act.
The decision to dispute liability for the surgery was maintained in further notices issued on 12 January 2023 and, following internal review, on 23 February 2023.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute in the Personal Injury Commission (the Commission) on 30 June 2023. The applicant seeks compensation pursuant to s 60 of the 1987 Act for the costs of and incidental to the surgery proposed by Dr McEntee.

ISSUES FOR DETERMINATION

The parties agree that the sole issue in dispute is:
(a) whether the spinal decompression or exposure via partial or total laminectomy, partial vertebrectomy or posterior spinal release at L3/4 and L4/5 proposed by Dr Laurence McEntee is reasonably necessary as a result of the injury on 17 May 2018 pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

An initial preliminary conference was held on 2 August 2023 at which time the Application to Resolve a Dispute was amended to omit a claim for lump sum compensation pursuant to s 66 of the 1987 Act. The matter was referred for conciliation conference and arbitration hearing.
A further preliminary conference was convened on 31 August 2023 at the respondent’s request to deal with an objection to the admission of documents lodged by the applicant under cover of an Application to Admit Late Documents on 24 August 2023.
After hearing submissions from both parties, directions were made admitting some of the late documents in the proceedings but excluding others, including a supplementary report from the applicant’s medico-legal expert, Dr James Bodel, dated 14 August 2023. Reasons for the Commission’s decision were given orally and recorded.
The matter proceeded to conciliation conference and arbitration hearing via Microsoft Teams on 18 September 2023. The applicant was represented by Mr Daniel Steiner of counsel, instructed by Mr Joel Francis. The respondent was represented by Mr Daniel Stiles of counsel, instructed by Ms Naomi Tancred. A representative from the insurer, Mr Daniel McAndrew, was also present.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents; and
(c)    documents attached to the Application to Admit Late Documents lodged by the applicant on 24 August 2023, other than:
(i)the supplementary report of Dr James Bodel, dated 14 August 2023, and
(ii)letter to Dr James Bodel from Main Lawyers, dated 3 August 2023.
I indicated to parties at the commencement of the arbitration hearing that, given the large volume of documentary evidence lodged in the Commission, I would only be taking into account those documents to which I was referred during submissions. The parties agreed to this course.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by him on 12 February 2021 and 22 June 2023.
In his first statement, the applicant described a previous work injury to his back in 2017 when he fell onto a refrigerator whilst walking on the shop floor. As a result of that injury, the applicant was placed on light duties with a lifting limit of 15kg. The injury was treated with analgesic medication and physiotherapy. The applicant said his symptoms resolved.
The subject injury on 17 May 2018 was also described. The applicant was carrying empty boxes whilst walking and tripped over a trolley which was in his path. The applicant fell forward and landed heavily on both knees, jarring his back and injuring his face as it hit the rail of the trolley. The applicant expressed the belief that he lost consciousness for a short period.
When the applicant was able to stand, he left the workplace and saw his general practitioner, Dr Jiang Li, the same day.
The applicant was later referred to an orthopaedic surgeon, Dr Darren Chen, and underwent surgical procedures to his right knee including a knee replacement surgery performed on 28 March 2019. Following the surgery, the applicant walked using an aid, which resulted in pain in his lower back. The applicant was taking pain relief medication including Mobic, Panadol and Lyrica.
The applicant’s back symptoms were also treated conservatively with physiotherapy, hydrotherapy and steroid injections.
The applicant was referred to orthopaedic surgeon, Dr Geoffrey Rosenberg, who recommended an L1 to S3 decompression and fusion surgery. Liability for that surgery was declined by the respondent’s insurer.
The applicant described continuing disabilities including psychological symptoms.
In his supplementary statement, the applicant said that since his previous statement, he had relocated to Queensland and had consulted new specialists.
Dr Laurence McEntee had recommended an L3-L5 laminectomy surgery after further investigations of the applicant’s lumbar spine.
The applicant disagreed that his current condition was related to old age and degeneration. The applicant said that before the workplace injury on 17 May 2018 he was not in constant pain and restriction but he had been ever since the fall.
The applicant said he did have some back issues prior to the injury including the earlier workplace fall and a motor vehicle accident on 21 February 2018. The applicant said these were minor back complaints and did not have a lasting effect on his lower back. Those injuries primarily involved other body parts. The applicant had been capable of working on a suitable duties plan when he fell on 17 May 2018 but had not been able to return to any employment since then.
The applicant described his current disabilities and treatment including medication, Fisiocrem, heat packs and a lumbar brace.

Treating evidence

Clinical records from Bay HealthCare are in evidence.
On 8 January 2010, a hand-written note recorded lower back pain starting two days earlier at home. The applicant was unable to work. Dr Hany Basta prescribed Panadeine Forte.
The report of a CT scan of the lumbar spine requested by Dr Basta and performed on 8 January 2010, indicated that the investigation was requested for left lower back pain and restricted movement. The report found a posterocentral disc protrusion at L4/5 with mild bilateral foraminal stenosis and a generalised disc bulge at L3/4, slightly more marked on the left, without definite neural compromise.
A letter from Lesley Halls, physiotherapist, dated 31 May 2010, recorded that the applicant had been referred for physiotherapy in respect of six months of lumbar pain. The applicant was provided with a comprehensive exercise program.
On 14 September 2010, Dr Basta made a record of lower back pain starting the previous afternoon and a history of lower back pain for six months after lifting electrical appliances (microwaves) and ovens.
On 11 March 2012, Dr Basta noted right sided lower back pain starting three days earlier while moving a dishwasher.
On 13 June 2012, Dr Basta recorded that the applicant reported recurrent lower back pain which had come back six weeks ago. The pain increased with sitting, bending and lying down or walking for more than 80 metres. The applicant was prescribed Panadol Osteo.
On 4 July 2012, Dr Basta signed a medical certificate for a disability parking permit. The disability was described as:
“lower back pain – disc protrusion L4/5, disc bulge L3/4, lumbar spondylosis”
Asked whether the condition was temporary, Dr Basta ticked “no”.
On 12 March 2013, Dr Basta noted:
“low back pain is getting worse, the pain increases with walking, sitting, sneezing and coughing. Takes Panadeine Forte 2 tabs prn 3 times a day. The right leg pain bath night lasted 30 minutes and has gone. No leg numbness.
Past history of low back injury at work with the same employer at a different store June/July 2010.
Had CT scan 8.1.10: focal posterocentral disc protrusion L4/5. Generalised disc bulge L3/4. Lumbar spondylosis
Examination:
tender over the lumbar spine paravertebral muscles on both sides.
restricted movements of the lumbar spine”
Dr Basta requested a CT of the lumbar spine.
On 13 March 2013, Dr Basta reported that the applicant had right-sided lower back pain which started at work on 8 March 2013 while moving a dishwasher. A CT scan of the lumbar spine performed on 12 March 2013 was reported to show lumbar spondylitic changes, mild to moderate foraminal stenosis most marked at L5/S1 and L4/5. Facet joint arthrosis was most marked at L4/5.
On 4 and 15 April 2013 Dr Basta reported that the applicant’s right sided lower back pain had increased and issued medical certificates for time off work.
On 10 May 2013, Dr Basta issued a certificate stating that the applicant had attended for consultations in relation to lower back pain, Dr Basta stated:
“Mr Paratore reported on the 13.6.12 recurrent lower back pain, he said his pain increases with sitting, bending, lying down and walking more than 80 metres,
He was issued with a mobility parking scheme application for disability parking permit on 04.07.12.”
On 18 November 2015, Dr Basta recorded:
“low back pain on and off for over two years, the pain has increased 3 weeks ago, feels the pain more on the left”
On 24 December 2015, Dr Basta again recorded low back pain, starting a week ago but increasing the previous night. Pain was radiating to the left leg. The applicant was noted to have attended two physiotherapy sessions but still had pain.
A letter of referral to orthopaedic surgeon Dr Robert Drummond dated 24 December 2015 recorded a history of low back pain on and off for over two years. The pain was felt more on the left. The applicant was noted to have tried physiotherapy but the pain was getting worse. The letter also noted that a CT scan was performed on 12 March 2013 showing mild-to-moderate foraminal stenosis most marked L5/S1 and L4/5 and facet joint arthrosis most marked L4/5. It was noted that applicant may benefit from steroid injection.
On 31 December 2015, the applicant reported another increase in lower back pain and being unable to attend work. A medical certificate was provided.
A letter from cardiologist, Dr David Rees dated 9 March 2016, refers to the applicant doing well since his last review two years earlier, with his only “major complaint” being sciatica involving his left leg.
On 15 June 2017, Dr Basta recorded low back pain starting two days earlier in the morning at home. The applicant was prescribed Panadeine Forte.
On 19 June 2017, the applicant was prescribed Endone for “severe” low back pain.
A disability parking permit renewal form was completed on 20 June 2017 in relation to low back pain, disc protrusion L4/5 and lumbar spondylosis.
Dr Jiang Li, from the same practice as Dr Basta noted on 7 September 2017 that the applicant had injured his back at work on 5 September 2017. Dr Li noted a past history of lower back injury six years earlier under Workcover with a different employer. The applicant was prescribed Panadeine Extra.
On 12 September 2017, the applicant’s lower back pain was noted to be improving. The applicant was, however, referred for MRI.
The report of the MRI scan taken on 25 September 2017 recorded:
“There is a moderately large left sided disc protrusion at L3/4 compressing the left L4 nerve root. There is no canal stenosis.”
Case conferences in respect of the 2017 injury continued to be recorded in the notes of Dr Li throughout the remainder of 2017. On 26 September 2017, Dr Li noted left leg numbness and lower back pain. The applicant was advised to continue with physiotherapy, Panadeine Forte and Lyrica. The applicant was performing light duties.
On 3 October 2017, physiotherapist Ms Lu Fang reported that the applicant had been referred for physiotherapy treatment for the back injury at work on 3 September 2017. The applicant’s lumbar spine range of motion was grossly restricted in all directions with pain being a limiting factor.
The applicant’s back pain was noted to be better but the left leg still having some pain on 19 December 2017. The applicant was to continue with a gym program.
On 17 January 2018, Ms Fang reported that the applicant’s back pain had settled for the most part and was being managed with home-based exercises.
An independent physiotherapy consultant report prepared for the insurer on 6 February 2018 recorded that the applicant reported a 40% level of recovery. The applicant was working normal hours with restricted duties. The applicant reported constant pain. All spinal movements were restricted in range. It was reported that the applicant would benefit from an activity based exercise program. Additional physiotherapy and hydrotherapy was not considered reasonably necessary.
A discharge summary dated 21 February 2018 from St George Hospital recorded that the applicant was involved in a motor vehicle accident. The applicant was driving an estimated speed of 40 to 50kmph when he was hit from behind by another car. The applicant was restrained by seatbelt and no airbags deployed. The applicant hit his left knee against dashboard and complained of back and knee pain. No fractures were evident on X-rays of the lumbar spine and knee. The impression given was of muscular lower back pain and knee bruising. The applicant was discharged for follow-up with his regular general practitioner.
At a case conference for the 2017 injury on 24 April 2018, Dr Li noted:
“still has lower back pain and has Lyrica 75mg/nocte and helped.”
An MRI of the lumbar spine was performed at the request of Dr Li on 19 August 2019. This was reported to show a moderately large left-sided disc protrusion at L3/4 compressing the L4 nerve root. The report noted,
“This has remained relatively stable in two years. The remaining lumbar appearances are also unchanged.”
The applicant was first seen by orthopaedic surgeon, Dr Geoffrey Rosenberg on 11 September 2019. Dr Rosenberg took a history of the fall at work while carrying boxes, which caused the applicant to jar his back. Dr Rosenberg recorded:
“Prior to this episode he had occasional back pain which was under control and manageable. Since the fall his back has significantly worsened. He has been unable to work and in fact has been retrenched. He does have occasional pain into the gluteal area, and occasional groin pain. The back troubles him most.”
Dr Rosenberg referred to the MRI findings and recommended a bone scan.
On 2 October 2019 it was noted that the applicant had still not had the bone scan. The applicant’s symptoms were said to be worsening.
The report of a bone scan performed on 4 October 2019 revealed advanced multilevel disco-vertebral degenerative disease in the mid thoracic spine as well as focal left L2/L3 disco-vertebral degenerative disease and active right L4/L5 facet joint arthritis with low-grade facet joint arthritis elsewhere.
On 10 October 2019, Dr Rosenberg reported that the applicant’s options were to perform an L3/4 discectomy only, which would improve the applicant’s left leg pain but would not do a great deal for the back. A definitive treatment would involve an L3 to S1 decompression and fusion. The applicant was said to be keen to have the definitive treatment. Dr Rosenberg stated,
“He has had problems with his back for a while now due to another fall at work, and this latest fall has most likely stirred this up, as well as caused the disc protrusion.”
Dr Rosenberg responded to a report from the insurer’s medico-legal expert, Dr John Bosanquet on 16 December 2019, agreeing that the applicant had aggravated underlying degenerative change in his lumbar spine and had a large disc protrusion to the left at L3/4. Dr Rosenberg stated:
“Whilst I accept that the proposed surgery is indeed a large undertaking, in this presentation it really requires an 'all or nothing approach'. Anything less would be a short term fix at best.”
In a report dated 19 December 2019, Dr Rosenberg noted that the applicant had not received approval for the surgery from the insurer. Dr Rosenberg commented:
“He has had relatively asymptomatic degeneration of the lumbar spine. The fall has rendered him symptomatic. An L3/4 discectomy will improve his left thigh pain, but will do nothing for his ongoing back pain and his overall issues. Sometimes one is faced with this dilemma as it is an all or nothing approach. It remains my belief he really requires an L3 to S1 decompression and fusion.”
On 6 February 2020, Dr Rosenberg reported that the applicant felt his symptoms were worsening with severe back pain and pain in both legs. The left leg was probably the most troublesome. Dr Rosenberg recommended a left L4 nerve root block spinal injection before proceeding down the surgical path.
An injection to the left L4/5 neural foramen adjacent to the L4 nerve root was performed on 14 February 2020. Dr Rosenberg reported that the nerve root block had afforded maybe 24 hours of some benefit but no significant relief on 4 March 2020. Dr Rosenberg again recommended the larger surgical procedure, commenting:
“Whilst it is tempting to do a smaller procedure, by way of an L3/4 discectomy, I think that this will only partly help his problem, and will be of short term benefit at best. He has significant degenerative changes of the lower 2 levels, and I think this is a smaller operation on the path to the ultimate surgery, which in him involves an L3 to S1 fusion.”

On 16 July 2020, Dr Rosenberg recommended an up-to-date MRI after the applicant reported that physiotherapy had not provided any relief. The report of an MRI performed on 20 August 2020 noted:
“There is a small left-sided disc protrusion at L3-4 with potential compromise to the left L4 nerve root. There is a mild degree of canal stenosis at L4-5. There is a small subchondral stress fracture at the superior endplate of L4 with associated marrow oedema.”
Reviewing the MRI on 27 August 2020, Dr Rosenberg commented:
“His new MRI scan shows that the L3/4 disc protrusion is only minimal. The large protrusion noted previously has all but disappeared. They comment on a possible stress fracture affecting the L4 vertebra but I am not certain that this is the case.”
The applicant was referred back to Dr Rosenberg following a move to Queensland and was seen again on 16 June 2021. The applicant was sent for an up-to-date X-ray which showed loss of disc height over the lower lumbar levels from L3/4 to the pelvis with retrolisthesis. Dr Rosenberg maintained his opinion that, as the applicant had found nonoperative measures unhelpful, it was reasonable to offer surgery.
The applicant underwent an EOS whole-body scan for “chronic back pain” on 13 July 2021. The report showed multilevel endplate osteophytosis throughout the spine and minor retrolisthesis of L2 and L3.
The applicant was seen by a Queensland based orthopaedic surgeon, Dr Neil Cleaver, on 28 July 2021. Dr Cleaver said there was a spinal history going back many years, the most significant aspect of which was the work injury a few years ago. Dr Cleaver stated:
“What is clear is that he has pain due to degenerative pathology in his spine clearly bought to clinical relevance and made worse by his work injury.
Whether or not Antonio would benefit from surgery remains to be seen.
…
At the moment, the biggest barrier to that is that Antonio presented in a very depressed manner. He is extremely overweight and very deconditioned. These factors by themselves make Antonio currently a very poor candidate for surgery regardless of whether or not his underlying pathology surgically important or not.”
Dr Cleaver recommended that the applicant persist a bit longer with conservative therapies and suggested radiofrequency ablation may be of benefit. Dr Cleaver requested approval to perform medial branch blocks to the L4/5 and L5/S1 facet joints. These were performed on 23 August 2021.
On 25 August 2021, Dr Cleaver reported that the applicant got zero pain relief with the medial branch blocks. This suggested that the sacroiliac joints might be responsible for the pain the applicant described. Dr Cleaver sought approval for CT guided injection at the bilateral sacroiliac joints. This was performed on 14 September 2021.
Dr Cleaver referred the applicant for pain management specialist review on 27 September 2021, reporting:
“His spine is degenerative. Various diagnostic blocks have led to me offering him an opinion that at least a significant component of his lower back pain is coming from sacroiliac joints. Medial branch blocks around L5 – S1, which are highly arthritic, gave 0% pain relief, but he had a very significant response to local anaesthetic infiltration to his sacroiliac joints.”
Dr Cleaver noted that the applicant was awaiting approval for a left knee replacement surgery.
The applicant was seen by pain medicine physician, Dr Ramsey Jabbour, who prepared a report on 5 November 2021. Dr Jabbour took a history of the applicant twisting his back on 17 May 2018. The applicant’s treatment had consisted of analgesic medication, physiotherapy, hydrotherapy and review by Dr Rosenberg. The applicant had had a number of CT guided injections. Under the heading, “significant past medical history” no prior back symptoms were identified. Dr Jabbour recommended medial branch blocks targeting the lower lumbar facet joints and sacroiliac joints.
The applicant was referred to a different orthopaedic surgeon, Dr Laurence McEntee, who reported on 3 March 2022:
“In regard to his low back he reports ongoing low back pain which radiates out bilaterally. He describes the pain as constant and quite debilitating. He does not describe any pain, numbness or pins and needles going down his legs to speak of. He is of the opinion that he requires surgery to fix his low back.
At this stage I am not sure that I agree with him. Firstly he does not appear to have had any real imaging of his low back performed so I am going to arrange for him to have an MRI and a bone scan. He is also significantly overweight and he needs to lose about 20 kg before we would consider any surgery and as noted I am not sure we know exactly where his back pain is coming from yet so surgery is certainly not on the cards at this stage.”
An MRI of the lumbar spine performed on 16 March 2022 was recorded to show:
“Moderate degenerative change through the lumbar spine. A combination of disc complexes, facet and ligamentum flavum hypertrophy and epidural lipomatosis combine to result in moderate central canal narrowing/mild nerve root crowding at L3-4 with milder central canal and lateral recess narrowing at the other levels.
At L3-4 there is moderate right neural exit foraminal stenosis for the right L3 and at L4-5 there is quite marked neural exit foraminal stenosis also on the right for the right L4.”
A bone scan performed on 22 March 2022 showed multiple sites of active arthropathy across the lumbar spine.
On 31 May 2022, Dr McEntee reported that the applicant presented with ongoing low back pain and bilateral sciatica after a work injury. Dr McEntee requested the applicant undergo bilateral L4/5 and L5/S1 facet injections as well as an epidural steroid injection at L3/4. These were performed on 8 June 2022.
On 14 July 2022, Dr McEntee noted that the applicant had no real relief from the facet injections or epidural injection. The applicant’s pain sounded mechanical/discogenic in nature. The applicant was keen to explore surgical intervention but first Dr McEntee wished to arrange a discography and fine cut CT scan to further assess pain generators in his lower back as well as an EMG of the lower limbs. Dr McEntee again noted that the applicant would need to continue to lose a significant amount of weight before surgery was considered.
A report from consultant neurologist and neurophysiologist, Dr Ventzi Bonev, on 29 July 2022 reported that EMG findings were consistent with chronic neurogenic denervation at L4, L5 and S1 myotomes bilaterally.
The report of a discography performed on 9 August 2022, showed positive provocative discography at all levels from L2 to S1 with severe disc degeneration at each level.
After reviewing the additional radiological findings, Dr McEntee gave the opinion on 12 October 2022:
“I consider he sustained a work related aggravation of underlying lumbar spondylosis. I have advised an L3/4 and L4/5 laminectomies for his ongoing symptoms in particular his radicular pain in his lower limbs. I have noted surgery may not lead to significant improvement in his back pain but should certainly help his radicular pain.”
The applicant’s solicitors wrote to Dr McEntee on 7 March 2023 requesting a report. Dr McEntee was provided with reports from the medicolegal experts and the St George Hospital Discharge Records dated 21 February 2018. Dr McEntee was notified of the previous work injury on 3 September 2017 and the motor vehicle accident on 21 February 2018. Between 21 February 2018 and 17 May 2018, the applicant was noted to have returned to his employment and had been able to perform his suitable duties successfully until his injury on 17 May 2018.
In response, Dr McEntee prepared a report dated 23 April 2023 in which he explained the benefits of the proposed surgery as follows:
“Mr Paratore has presented with chronic lower back pain but also bilateral sciatica with imaging showing spinal stenosis at L3/4 and L4/5, hence the request for laminectomy surgery. The surgery is likely to lead to improvements in his leg pain and also some improvement in his back pain. This will naturally lead to functional improvements.”
Dr McEntee was asked whether the applicant’s ongoing symptoms were a result of his work injury on 17 May 2018, or whether he would likely have suffered the same symptoms due to age and natural degeneration. Dr McEntee responded:
“He has significant degeneration of the spine. It is possible he would have suffered the same symptoms due to age and natural degeneration although he does describe a significant deterioration in his symptoms post the injury.”
Asked to comment on the medico-legal opinion obtained by the insurer from Dr Paul Robinson, Dr McEntee stated:
“I would agree that the lumbar spine degenerative changes were not caused by the injury in May 2018 but this injury did exacerbate or indeed aggravate the underlying condition.”
On 3 August 2023, the applicant’s solicitors wrote to Dr McEntee requesting a further report. Dr McEntee was provided with various documents from the claim file in relation to the 2018 motor vehicle accident including the Bay HealthCare clinical records as at 30 April 2018.
In his report responding to the solicitor’s letter, dated 21 August 2023, Dr McEntee said:
“I am still of the opinion that the workplace injury aggravated his underlying lumbar spondylosis/spinal stenosis. This is based on the history provided to me by Mr Paratore that he did not have much in the way of any back pain or radiculopathy prior to the injury and has had ongoing symptoms since.”
In response to a question asking whether the workplace injury was a significant contributing factor to the need for the proposed surgery, Dr McEntee stated:
“Based on Mr Paratore's history the workplace injury certainly contributes to the requirement for the proposed surgery as it appears to have triggered his symptoms. The workplace injury could therefore be considered a significant contributing factor.”

Dr Bodel

The applicant relies on a medico-legal report prepared by orthopaedic surgeon, Dr James Bodel, dated 31 August 2020.
Dr Bodel took a history of the injury in 2017 and noted that the applicant was treated with analgesic medication and physiotherapy. The applicant returned to work on light duties until the injury on 17 May 2018. The fall on that date made the applicant’s back pain much worse and that steadily deteriorated. The applicant had undergone block injections which gave some temporary relief. Dr Bodel noted that Dr Rosenberg had recommended a three level spinal fusion from L3 to the sacrum.
No previous back symptoms were identified in the “past medical history” recorded by Dr Bodel.
The applicant’s main complaint was pain at the lower back and left leg pain and numbness.
Dr Bodel considered the MRI investigations dated 19 August 2019 and 20 August 2020 as well as plain X-rays taken on 11 September 2019.
Dr Bodel diagnosed an aggravation, acceleration, exacerbation or deterioration to multilevel degenerative disc disease at the lumbosacral spine.
Asked if the surgery proposed by Dr Rosenberg was reasonably necessary as a result of the work injury, Dr Bodel responded:
“I can understand the principle of the wider decompressive surgery and fusion but that is a very large surgical undertaking and there is certainly no guarantee that it will achieve the outcome that Mr Paratore desires. The treatment is reasonably necessary and he has had extensive conservative care without relief and therefore it is to be considered as a various treatment options.”

Dr Bosanquet

The applicant was seen at the request of the insurer by orthopaedic surgeon, Dr John Bosanquet on 21 November 2019. Dr Bosanquet was provided with Dr Rosenberg’s treating reports as well as the bone scan and August 2019 MRI. Dr Bosanquet took a history of the subject injury as follows:
“He was off work with a painful right knee and was referred to a specialist, an orthopaedic surgeon who performed an arthroscopy of the right knee without any improvement in his symptoms. He tried to go back on light duties but lasted for two months and had ongoing pain in his back and knee. He saw another specialist, Dr Derek Chan, who performed an MRI scan of his knee and he recommended a total knee replacement that was performed in March 2019 giving a good result.”
Under the heading “Past History”, Dr Bosanquet reported that there had been no other history of an injury to the applicant’s back or knees.
The applicant was reported to have ongoing pain in his lower back. Following an examination and review radiological evidence, Dr Bosanquet diagnosed an aggravation of underlying degenerative changes of the lumbar spine with a disc lesion at L3/4 and spondylitic changes elsewhere. Dr Bosanquet was asked to consider the surgery proposed by Dr Rosenberg and gave the opinion:
“He has aggravated underlying degenerative changes and while that aggravation has not ceased, I do not feel that surgery of this magnitude is necessary.”
In a supplementary report dated 17 January 2020, Dr Bosanquet maintained his opinion that a further trial of non-operative management should be continued, particularly weight reduction or a strengthening programme.
Dr Bosanquet prepared a further report on 15 June 2021 in which he commented:
“I note from the progress notes that Antonio Paratore has had recurrent low back pain following a workers compensation injury in 2010. The recurrences have been 2012, 2013, 2015 and 2017. He did not allude to any of these when I interviewed him initially. I am not certain that Dr Rosenberg is aware of that past history. However, it does alter the recommendation for surgery in that his symptoms have now been going on for well over 10 years. I regard the incident on 17/05/2018 as being an aggravation of those underlying degenerative changes and that aggravation has ceased. Hence any symptoms that he is experiencing are 100% due to the pre-existing degenerative changes. The operation recommended by Dr Rosenberg is a fusion at several levels which is a major operation with only a 50% chance of improvement following the surgery.”
An additional supplementary report was obtained on 15 July 2021, in which Dr Bosanquet was asked to comment on the effect of the motor vehicle accident in February 2018. Dr Bosanquet stated:
“In my report of 14/06/2020 I have stated ‘Thus, in summary it is my opinion that his current back pain is not a result of the injury on 17/05/2018 which was merely an aggravation that has ceased.’ I do not regard the motor accident in February 2018 as being in any way contributory to the need for surgery as this would have been a minor aggravation, similar to the work injury in May 2018”.

Dr Robinson

The applicant was seen by another orthopaedic surgeon, Dr Paul Robinson, on 1 November 2021, at the request of the insurer.
Dr Robinson took a history of the work injury and noted that the applicant stated that he had pain in the top of his spine not in the lower lumbar region. The back pain was reported to produce some paraesthesia into the left leg at times.
On examination the applicant had tenderness in the L3 to S1 regions and sacroiliac joints. Range of movement was decreased in all directions.
Dr Robinson recorded no past history in relation to the back.
Dr Robinson gave the opinion:
“The spinal injury was of a soft tissue nature irritating an underlying pre-existing arthritis as seen on investigations within 12 months of the injury. The spinal problem has been treated conservatively and I believe with his current examination there is no indication for operative intervention in view of his current condition and medical problems – being overweight and with previous cardiac pathology.”
Dr Robinson prepared a supplementary report on 6 December 2022 in which he was asked to comment on the surgery proposed by Dr McEntee. On this occasion, Dr Robinson took a past history as follows:
“He denies any past history of low back pain but on further questioning he states he did see his General Practitioner for back pain prior to the accident at work in 2018 and he states he was treated with Panadeine Forte.”
Following examination and review of the radiological evidence, Dr Robinson gave the opinion:
“His lower spinal problems relate to pre-existing degenerative changes which extend throughout the lumbar area and the symptoms associated with such have been exacerbated by this injury in 2018 but not caused by such.
He has no evidence of radiculopathy but does have spinal stenosis. Spinal stenosis is a condition which is idiopathic – not related to injury generally but generally advances with time and produces some of the symptoms which Mr Paratore complains.
Operative intervention will assist him in that it will decompress the area if an adequate laminectomy is performed at those levels. This will not completely relieve the symptoms because of a long history of arthritic problems which are present and seen radiologically.”
In response to a question asking for comment on the likelihood of the applicant developing similar symptoms at this stage in life regardless of the workplace accident in 2018, Dr Robinson said:
“The workplace incident caused an exacerbation of the problems, but he is now having symptoms related to the natural history of the degenerative problems he has.”
Asked whether the work-related aggravation had ceased, Dr Robinson responded:
“I would believe that the aggravation has ceased and now he is continuing to complain of problems related to the pre-existing arthritic problems.
…
He does require decompression, but the work-related injury was not the initiating cause for the degenerative problems which he experiences.”
Dr Robinson agreed that the surgery proposed by Dr McEntee would be effective for helping the applicant’s back pain and was consistent with spinal surgical practices and his own experience:
“… surgery as suggested should be effective in relieving the pain associated with this area but as mentioned this is related to underlying pre-existing arthritis and not necessarily the work-related injury although this has exacerbated the problem as mentioned above.”

Applicant’s submissions

The applicant noted that he had a prior episode of back pain in about 2009 or 2010 whilst working as a self employed builder. The applicant underwent a CT scan on 8 January 2010 which showed disc bulging at two levels. The applicant subsequently underwent physiotherapy and a report, dated 31 May 2010, indicated that the applicant’s pain had settled with treatment.
After commencing employment with the respondent, the applicant had an accident, described in his statement, where he fell onto a refrigerator and injured his back. Following that incident, an MRI scan was performed on 25 September 2017, which showed a moderately large left-sided disc protrusion at L3/4 pressing on the left L4 nerve root. The applicant was referred for physiotherapy.
A physiotherapy report, dated 17 January 2018, recorded that the applicant’s pain had settled with home-based exercise. The applicant was discharged from treatment.
The applicant was involved in a motor vehicle accident the following month. The discharge referral note from St George Hospital indicated that the applicant complained of left knee and back pain and, on examination, had moderate tenderness to the lumbar region, particularly the paravertebral muscles, and reduced lumbar flexion. An X-ray of the lumbar spine performed at the hospital showed no acute fractures. The applicant was diagnosed with muscular back pain. A CT scan was suggested but never performed.
The applicant returned to work and sustained the second and subject injury on 17 May 2018.
A total knee replacement was performed on 28 March 2019, following which the applicant was noted to walk with an antalgic gait. At various times, the applicant used walking aids and this caused additional pain.
MRI scans of the lumbar spine were also performed, following which Dr Rosenberg recommended a larger surgical procedure than that now sought. The applicant referred the Commission to the reports of Dr Rosenberg attached to the Application to Resolve a Dispute. Liability for that surgery was refused.

In 2021, the applicant moved to Queensland and saw Dr Cleaver, who recommended conservative treatment. The applicant persisted with conservative treatment until 2022.
The applicant was eventually seen by Dr McEntee who, armed with additional radiological investigations, including the discography performed on 9 August 2022, recommended a smaller, less invasive procedure than that which had been recommended by Dr Rosenberg. Dr McEntee requested approval for a two-level laminectomy surgery on 12 October 2022 in respect of a work-related aggravation of underlying lumbar spondylosis.
The applicant submitted that Dr Robinson accepted that there was a causal relationship between work and a soft tissue spinal injury. Dr Robinson did not deal with whether there was a material contribution from the work injury to the need for surgery but essentially considered that the applicant was not a good candidate for the surgery due to his weight and cardiac problems. Dr Robinson did not actually say the surgery was not work related or not reasonable for the purposes of s 60 of the 1987 Act. The applicant submitted that, having skirted the real issue, Dr Robinson was actually supportive of the proposed procedure.
The applicant referred to the report of Dr Bodel, which addressed the surgery which had been proposed by Dr Rosenberg. Dr Bodel had reservations about the size of the surgery proposed by Dr Rosenberg but the applicant submitted that it could be inferred from the report that Dr Bodel would support the lesser surgery now proposed by Dr McEntee. The surgery now proposed was more in line with Dr Bodel’s reservations about the size of the surgery.
The applicant referred to the most recent reports from Dr McEntee and the solicitor’s letters of instruction requesting them. The applicant submitted that it was clear that Dr McEntee’s attention had been brought specifically to the prior history including the motor vehicle accident. Dr McEntee considered that the work injury had aggravated the underlying spondylosis and stenosis and contributed to the need for surgery. The surgery was intended to address the applicant’s ongoing radicular symptoms.
The applicant submitted that liability for a lumbar injury had been accepted. The proposed surgery resulted from that injury and the treatment was reasonably necessary.
The applicant referred the Commission to the authorities in Murphy v Allity Management Services Pty Ltd,[1] Taxis Combined Services (Victoria) Pty Ltd v Schokman[2] and Rootsey v Tiger Nominees Pty Ltd.[3] The applicant noted that he need only demonstrate that the work injury materially contributed to the need for surgery.
[1] [2015] NSWWCCPD 49.
[2] [2014] NSWWCCPD 18.
[3] [2002] NSWCC 48.
With regard to whether the particular procedure was reasonably necessary, the applicant referred to authorities including, Bartolov Western Sydney Area Health Service.[4] The applicant submitted that the particular procedure proposed may not be optimal and other types of treatment may be available but that would not preclude a finding that the surgery was reasonably necessary.
[4] (1997) NSWCCR 233.
The applicant submitted that he had undergone a great deal of conservative therapy, none of which had rendered him any benefit. The applicant remained severely impaired and the proposed treatment represented his best chance of returning to a normal level of function and symptomology. Any further delay, as the applicant aged, might render the surgery more complicated. There was a need for surgery now.
The doctor best placed to determine the reasonableness of the surgery was Dr McEntee. Dr McEntee’s opinion was corroborated to some extent by both Dr Bodel and Dr Robinson.
The applicant referred the Commission to three decisions at the arbitral level in which it was determined, in almost identical circumstances, that surgery was reasonably necessary.

Respondent’s submissions

The respondent criticised the reports of Dr Bodel and Dr McEntee on the basis that neither doctor had a complete history of the applicant’s pre-existing condition so as to enable them to come to the conclusions they had.
The respondent noted that the applicant did not address the episode of back pain leading to the CT scan in 2010 anywhere in his statements. The applicant had a long history of back pain and treatment but it was not known what that history was as the applicant did not address it. Nothing was known of the circumstances leading to the 2010 CT scan.
The respondent referred to the clinical notes from Bay HealthCare and noted an entry on 13 June 2012 referring to recurrent lower back pain and the 2010 CT scan findings. Lower back pain was noted again in July 2012 and March 2013, during which time the applicant was given medical certificates on the basis that he was unfit for work. On 12 March 2013, the applicant was referred for a further CT scan for worsening lower back pain since 2010. The notes recorded that the scan revealed mild to moderate foraminal stenosis at L5/S1 and L4/5. Further notes and certificates were issued in April 2013.
The respondent referred to the report of Dr Basta in May 2013 noting that the applicant had been issued with a disability parking permit.
Worsening lower back pain and corresponding medical certificates were noted in November and December 2015.
The respondent noted that Dr Rees on 9 March 2016 reported that the applicant was experiencing sciatic pain down the left leg.
The clinical notes recorded that further medical certificates and a disability parking permit renewal were issued in relation to lower back symptoms in June 2017.
The respondent observed that clinical notes dealing with the work injury in September 2017 referred to a lower back injury six years ago with a different employer which was not explained further in the applicant’s evidence.
The respondent also referred to the radiological investigations following the 2017 work injury and the hospital records following the motor vehicle accident in 2018.
The respondent submitted that the applicant’s statements and Dr Bodel’s report did not deal with the full history revealed in the treating evidence. Although in his most recent reports McEntee acknowledged the motor vehicle accident and 2017 injury, he did not appear to have been referred to the full history of back symptoms, treatment and investigation. The respondent submitted that it was not apparent that Dr Bodel or Dr McEntee had considered the radiological investigations in 2010, 2013 or 2017.
The respondent submitted that the failure of either doctor to consider that prior history would cause the Commission concern in terms of simply accepting that the incident in May 2018 brought about a need for what was initially a very significant surgical intervention, albeit one that had now been dialled back by Dr McEntee.
The respondent referred to the reports of Dr Bosanquet and noted that although he considered there was an aggravation of the applicant’s back condition that had not resolved in 2019, the surgery that was then being proposed was not reasonably necessary and conservative treatment was recommended.
The respondent noted that Dr Bosanquet, unlike Dr Bodel and Dr McEntee did obtain a history of back pain dating from 2010 by the time of his June 2021 report. Dr Bosanquet noted that this had not been disclosed to him previously and queried whether that history had been given to Dr Rosenberg. Dr Bosanquet concluded that the work related aggravation had ceased.
The respondent noted that although Dr Bosanquet appeared to accept that the applicant had an aggravation of his back pain following the motor vehicle accident, the aggravation had settled. The respondent submitted that Dr Bosanquet had expressed the same view about the work injury in May 2018. Both the work injury and the motor vehicle accident were minor aggravations of the underlying condition, both of which had resolved. The respondent submitted that it was the ongoing degenerative pathology that was now causing the applicant’s symptoms and giving rise to the need for surgery.
The respondent submitted that Dr Cleaver’s reports acknowledged the degenerative pathology in the applicant’s spine. Although Dr Cleaver acknowledged the work injury, he did not address whether the need for surgery resulted from the work injury or the underlying degenerative condition. Dr Cleaver did note that the applicant was a poor candidate for surgery due to a number of co-morbidities.
The respondent submitted that even if the Commission accepted that the need for surgery resulted from the work injury, there was no evidence dealing with whether the surgery was reasonably necessary in light of those co-morbidities.
The respondent noted that Dr McEntee was also initially reticent to offer surgery. Although following further investigations he recommended surgery and gave the opinion that the work injury had unmasked an underlying spondylosis and rendered it symptomatic, in giving that opinion, the respondent submitted that Dr McEntee did not have the history of symptoms, treatment and investigations between 2010 and 2018. In those circumstances, no real weight could be placed on Dr McEntee’s opinion.
The respondent observed that the discography ordered by Dr McEntee showed severe disc degeneration at all levels.
The respondent noted that in his most recent reports Dr McEntee acknowledged that the applicant’s condition was multifactorial and that the applicant may have experienced the same symptoms with age and natural degeneration regardless of the injury. Although he gave the opinion that there had been a work-related aggravation, that opinion was given without any reference to the prior history. The letter from the applicant’s solicitor indicated that Dr McEntee had been referred to the history of the motor vehicle accident but not the other significant history.
The respondent noted that Dr Robinson noted the degenerative pathology in the spine. Although he agreed there had been a work-related aggravation and the surgery may assist the applicant, Dr Robinson concluded as at late 2022 that the applicant’s symptoms were caused by the underlying degenerative condition.
The respondent referred to the authorities in Makita (Australia) Pty Ltd v Sprowles,[5] Paric v John Holland (Constructions) Pty Ltd[6] and Hancock v East Coast Timber Products Pty Ltd[7] and submitted that neither Dr Bodel nor Dr McEntee had a factual background sufficient to enable them to come to the conclusion that the minor aggravation in May 2018 had brought about the need for surgery.
[5] [2001] NSWCA 305.
[6] [1985] HCA 58.
[7] [2011] NSWCA 11.
The respondent noted that Dr Bodel’s report did not even deal with the surgery now the subject of the claim.
The respondent submitted that there was no material addressing why the procedure now proposed was appropriate given Dr Rosenberg’s previous recommendation. Dr Rosenberg had been adamant that nothing less than a three level fusion was going to provide the applicant with any significant relief.
There was also no material addressing why the applicant’s co-morbidities were now no longer a barrier to surgery.
The respondent noted that pursuant to Murphy v Allity Management Services Pty Ltd[8] the applicant needed to establish that the injury materially contributed to the need for surgery. Dr McEntee’s opinion did not directly address that question.
[8] [2015] NSWWCCPD 49.
Noting that the applicant bore the onus, the respondent submitted that the Commission would not be satisfied that the proposed surgery was reasonably necessary as a result of the work injury.

Applicant’s submissions in reply

The applicant submitted that the clinical notes of Bay HealthCare were clearly provided to Dr McEntee by the applicant’s solicitors when they requested his last report. Those notes traversed the period from 2008 to 2017. It was not correct to say that Dr McEntee was not apprised of the prior history with respect to that period.
The applicant submitted that it was unsurprising, as a treating doctor, that Dr McEntee did not go through the treating history chapter and verse, but that did not mean he was not aware of it. The applicant submitted that the Commission would infer from the solicitor’s letter and the report of Dr McEntee that he was well aware of the history.

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).”
There is no dispute in this case that the applicant sustained an injury to his lumbar spine in the event on 17 May 2018. There is, however, a dispute as to whether the surgery proposed by Dr McEntee is reasonably necessary as a result of that injury for the purposes of s 60 of the 1987 Act. It is the applicant who bears the onus of establishing on the balance of probabilities that the proposed surgery is reasonably necessary as a result of the injury. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[9] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[9] [2008] NSWCA 246.
The test in s 60 requires consideration of both the causal relationship to the injury and the reasonableness of the treatment. In this case, there are disputes both as to whether the surgery is reasonably necessary medical treatment for the condition at the applicant’s lumbar spine as well as whether the need for that treatment results from the accepted injury.
With regard to causation, a commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates,[10] where Kirby P said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[10] (1994) 10 NSWCCR 796 at [810].
His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
A need for treatment can result from multiple causes. In Murphy v Allity Management Services Pty Ltd[11] Roche DP stated:
“…That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[11] [2015] NSWWCCPD 49.
It is uncontroversial that prior to the work injury on 17 May 2018, the applicant had pre-existing degenerative pathology at his lumbar spine. All of the doctors involved in this case have diagnosed the injury as an aggravation of that pre-existing degenerative disease. As the authorities referred to above make clear, the presence of pre-existing degenerative pathology will not preclude a finding that the need for surgery resulted from the work injury. The work injury need not be the main or even a substantial contributing factor for surgery. It is enough that the applicant establishes that the injury materially contributed to the need for surgery.
On their face, the reports of Dr McEntee to the applicant’s solicitors, and to some extent the report of Dr Bodel, are consistent with this test. The respondent has submitted, however, that the Commission ought not place weight on the opinions expressed by the applicant’s doctors on the basis that neither doctor had an adequate factual foundation on which to base his opinion.
An analysis of the treating evidence prior to the date of injury tends to support the respondent’s submission.
The applicant’s statement evidence gave little insight into to the condition of his lumbar spine prior to the subject injury. The applicant described the workplace injury in September 2017 but said the symptoms had resolved. The applicant also referred to the motor vehicle accident in February 2018 but said it was minor and did not have a lasting effect on his lower back. The applicant’s evidence was silent as to any other previous episodes of back pain, including any previous workplace injury in or around 2010.
Consistently with the applicant’s statement evidence, the histories provided to the specialist doctors involved in the applicant’s treatment after the work injury suggested that any prior back symptoms were unremarkable.
Dr Rosenberg, for example, recorded that prior to the work injury the applicant had “occasional” back pain which was “under control” and “manageable”. In his report of 10 October 2019, Dr Rosenberg appeared to be aware of the previous fall at work but in his report dated 19 December 2019, Dr Rosenberg gave the opinion that prior to the subject injury the applicant had “relatively asymptomatic” degeneration of the lumbar spine. Dr Rosenberg said the subject injury had rendered the degeneration symptomatic.

Similarly, Dr Cleaver whilst acknowledging that there was degenerative pathology in the applicant’s lumbar spine took a history of this being “brought to clinical relevance” by the work injury.
Dr Jabbour took no history of prior back symptoms.
Despite being provided with a history of the 2017 work injury, the 2018 motor vehicle accident and the Bay HealthCare records, in his reports for the applicant’s solicitors, Dr McEntee found the subject work injury had aggravated the underlying lumbar spondylosis and spinal stenosis based on a history that the applicant “did not have much in the way of any back pain or radiculopathy prior to the injury and has had ongoing symptoms since.” Dr McEntee gave the opinion that the work injury significantly contributed to the need for surgery based on the applicant’s history that it “triggered his symptoms”.
In the preparation of his report, Dr Bodel agreed that the applicant had pre-existing multilevel degenerative disc disease. Dr Bodel also appears to have been aware of the injury in 2017. No back symptoms were identified in the past medical history recorded by him.
In contrast to these histories, the respondent has referred the Commission to a body of treating evidence predating the work injury which indicates that the applicant’s back symptoms prior to the work injury were far more significant than had been disclosed to the doctors involved in his care following the work injury and the medicolegal experts involved in his claim.
That evidence reveals that the applicant sought medical treatment for lumbar spine symptoms on multiple occasions from 2010 until shortly before the subject work injury.
The applicant’s back symptoms were treated with Panadol Osteo and Panadeine Extra and, at times, stronger medication including Endone, Lyrica and Panadeine Forte.
The applicant was referred for physiotherapy and exercise programs at various times. In 2015, the applicant was referred to an orthopaedic surgeon in relation to his back symptoms. It was noted, at that time, that the applicant may benefit from steroid injections.
The symptoms described in the treating evidence prior to the work injury included right and left-sided back pain made worse with activity. Restricted range of motion was noted on several occasions. In March 2013, the applicant was noted to be experiencing right leg pain. Pain radiating to the left leg was noted in 2015. Sciatica involving the left leg was again noted in 2016. In 2017, left leg numbness was noted. In June 2017, the applicant’s pain was described as “severe”.
The applicant’s back pain had caused him incapacity for work. Non WorkCover medical certificates were issued in connection with back symptoms on a number of occasions over the years. Following the 2017 injury, the applicant continued on restricted duties due to his back symptoms up until the time of the subject injury.
The applicant’s back pain also impacted his mobility, with applications made for disability parking permits in 2012 and again in 2017. Those applications identified the applicant’s lumbar symptoms and pathology as the basis for the applications.
The applicant’s lumbar symptoms were investigated through CT scans on 8 January 2010 and 12 March 2013 and MRI scan on 25 September 2017.
The 2010 investigation identified that the applicant had a disc protrusion at L4/5 with mild foraminal stenosis and a disc bulge at L3/4 with no definite neural compromise. Lumbar spondylosis was also reported.
Lumbar spondylitic change was also noted in the 2013 investigation. Mild-to-moderate foraminal stenosis was noted at L4/5 as well as L5/S1. Facet joint arthrosis was identified, most marked at L4/5.
The 2017 MRI, which was performed following the 2017 work injury, identified a disc protrusion at L3/4 described as “moderately large”. The protrusion was reported to be compressing the left L4 nerve root.
Pathology was identified on radiological investigation, following complaints of symptoms, prior to the subject injury at all levels at which surgery is now proposed by Dr McEntee.
Significantly, the pathology revealed on the 2017 MRI was noted to have remained “relatively stable” over the previous two years at the time of the MRI performed on 19 August 2019 notwithstanding the intervening work injury. The 2019 MRI again noted a moderately large left-sided disc protrusion at L3/4 compressing the L4 nerve root. The other lumbar appearances were said to be “unchanged”.
The reports of the radiological investigations do not, therefore, reveal any material change in pathology in the aftermath of the subject injury. It is not clear whether Dr McEntee or Dr Bodel were provided with the pre-injury radiological investigations. If they were, they did not refer to them. To the contrary, at the time he first saw the applicant, Dr McEntee commented that the applicant did not appear to have had any real imaging of his lower back performed.
Despite specifically addressing a number of post injury radiological investigations, no mention was made of the pre-injury radiological investigations in Dr Bodel’s report.
It is also significant that in a further MRI requested in August 2020, the “moderately large” disc bulge at L3/4 seen in 2017 and 2019 appeared to have reduced to a “small” left-sided protrusion without clear compromise of the left L4 nerve root. Dr Rosenberg commented that the large protrusion noted previously had all but disappeared.
The radiological evidence is relevant but I accept it is not determinative of the issue in dispute. More importantly, it is necessary to look at the applicant’s experience of symptoms.
Although the applicant has, in the material post-dating the subject injury, consistently reported that his pain became more constant and severe with the 2018 fall, I have not been referred by either party to any contemporaneous evidence of lumbar symptoms in the period from the date of injury until more than 15 months after it occurred in August 2019, when the applicant was referred for a further MRI. The applicant first saw Dr Rosenberg in September 2019.
I accept that the applicant was essentially totally incapacitated for work following the 2018 injury, whereas previously he had been able to manage suitable duties. However, it is also apparent from the contemporaneous material that during this period the applicant was experiencing significant difficulties with his knees culminating in a right total knee replacement on 28 March 2019. The contemporaneous evidence to which I have been referred does not demonstrate that the applicant’s decrease in capacity was attributable to any increase in lumbar symptoms as opposed to the knee symptoms.
Although improvements in his lumbar condition with treatment had been noted following the 2017 work injury, the contemporaneous material does not demonstrate that the applicant’s lumbar symptoms had “resolved” prior to the subject injury. In addition to ongoing incapacity for pre-injury duties, the clinical records reveal that the applicant was continuing to report back pain and was being treated with Lyrica only a few weeks before the subject injury.
The pre-injury treating evidence does not support a conclusion that the applicant’s back symptoms were previously occasional and minor or that they had resolved. I do not accept that the material demonstrates that the applicant was “relatively asymptomatic” before the work injury. The contemporaneous treating material does not support a conclusion that the work injury “triggered” or rendered the pathology at the applicant’s lumbar spine symptomatic or brought it to clinical relevance.
The contemporaneous material shows that the applicant had experienced quite significant back pain, fluctuating in intensity but requiring treatment over a period of many years. The contemporaneous material shows that such symptoms were continuing up until very shortly before the subject injury. The contemporaneous material confirms that the applicant’s prior symptoms included both left and right sided back pain, at times described as severe. The applicant had also previously reported radicular symptoms in both legs and paraesthesia in his left leg.
Although the treating material is consistent with a gradual deterioration of the applicant’s symptoms following the work injury and it has been accepted that the injury caused an aggravation of symptoms, it is significant that symptoms of a similar nature were also reported and treated before the work injury.
I accept that Dr McEntee was provided with the Bay HealthCare clinical records and was specifically made aware of the both the 2017 work injury and the 2018 motor vehicle accident by the time of his most recent report. I am not, however, satisfied that he had comprehended the full extent of the applicant’s pre-existing condition as revealed in the clinical records. If he had, it is surprising that no mention was made, for example, of the radiological investigations, ongoing prescription of medication or the applications for disability parking permits in connection with lumbar symptoms. Dr McEntee expressly stated that he based his opinion on the history provided to him by the applicant that he did not have much in the way of any back pain or radiculopathy prior to the injury and that the injury had “triggered” his ongoing symptoms.
It is also not apparent that Dr Bodel was cognisant of the full pre-injury history in giving his opinion.
Although the applicant sought to draw additional support from Dr Robinson for the proposed surgery, Dr Robinson also recorded no past history in relation to the back.
The only doctor who has provided an opinion informed by a relatively complete history is Dr Bosanquet. Noting that the applicant had experienced recurring back pain for well over 10 years, Dr Bosanquet formed the view that the aggravation caused by the work injury had ceased by June 2021 and the applicant’s symptoms at that time were completely due to the pre-existing degenerative changes.
Dr Bosanquet’s view is consistent with the evidence of fluctuations in the applicant’s back symptoms and multiple aggravations over the years revealed in the clinical material. It is consistent with pathological changes noted by Dr Rosenberg between the August 2019 and the August 2020 MRIs. It is also consistent with the opinion of Dr Robinson that the work-related aggravation had ceased and the applicant’s current symptoms related to the natural history of his degenerative problems.
I do find aspects of Dr Robinson’s reasoning problematic and, consistently with the applicant’s submissions, I am not entirely persuaded that he has directed himself to the correct legal test. It is, however, the applicant’s onus to establish that the work injury has materially contributed to the need for the surgery now proposed.
Dr Bosanquet, Dr Robinson and Dr McEntee all agreed that it was possible that the applicant would have suffered his current symptoms due to age and natural degeneration even without the work injury. Where they differed was in relation to their view of the ongoing impact of the work injury. Dr McEntee has confirmed that his view in this regard was based on the history provided to him by the applicant.
The history on which Dr McEntee and Dr Bodel’s opinions were based did not have to correspond with complete precision to the other evidence. The question is whether the history put to the doctors represented a “fair climate” for the opinions they expressed.[12]
[12] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58.
For the reasons given above, I am not satisfied that Dr McEntee or Dr Bodel expressed their opinions on the causal relationship between the work injury and the need for surgery in a fair climate. The history on which they based their opinions significantly understated the extent and nature of the applicant’s pre-injury symptoms such that I am not satisfied that their opinions as to the contribution of the injury to the applicant’s current symptom complex are reliable.
In this regard, I prefer the opinions of Dr Bosanquet and Dr Robinson.
It may well be that the surgery proposed by Dr McEntee constitutes appropriate medical treatment for the applicant’s current back condition. Weighing all the evidence, however, I am not satisfied that the injury on 17 May 2018 materially contributed to the need for such surgery. I am not satisfied on the balance of probabilities that the proposed surgery is reasonably necessary as a result of the injury on 17 May 2018 for the purposes of s 60 of the 1987 Act.
The applicant has failed to discharge his onus and I decline to make the orders sought.

[2023] NSWPIC 564

25 October 2023