Pons v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Pons v Secretary, Department of Education [2022] NSWPIC 666
APPLICANT:	Bruno Pons
RESPONDENT:	State of New South Wales (TAFE Commission)
SENIOR Member:	Elizabeth Beilby
DATE OF DECISION:	2 December 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for lumbar surgery; determination as to whether the need for surgery arose from an ‘injury’ and if it was reasonably necessary; Held – finding in favour of the applicant.
determinations made:	1. The proposed surgery is reasonably necessary as a result of the accident on 14 December 2000.

STATEMENT OF REASONS

BACKGROUND

On 14 December 2000 at approximately 3.00pm Mr Pons (the applicant) was travelling home from work when he was hit by a motor vehicle as he crossed the road in Sydney.
As a result of the collision, the applicant was in and out of consciousness and says that he felt excruciating pain in his back and the left side of his body.[1]
[1] Applicant’s statement page 2.
The applicant was transported to St Vincent’s Hospital where he remained as an inpatient for five weeks. When he was discharged home, he wore a back brace for the next three months.
The applicant underwent a L1/2 spinal fusion with an L2 superior endplate fracture under the care of Dr Tim Steel (neurosurgeon). Unfortunately for the applicant, the spinal fusion never provided complete and permanent relief and he then underwent a series of cortisone injections. The last cortisone injection in 2013 provided some short relief.
In 2013, the applicant underwent further non work related surgery under Dr Ali Ghahreman namely the excision of a T12 nerve root to remove a tumour.
Dr Ghahreman in 2014 recommended the applicant undergo an L5/S1 lumbar laminectomy which was performed on 21 August 2014.
This surgery provided some success initially however that gradually reduced a few months later.
The applicant says that since his last surgery in 2014 his back has slowly deteriorated to the extent that it is unbearable at times. He suffers nerve impingement along his spine, restless leg syndrome, loss of control of the leg, numbness, tingling, pain and weakness. This has a severe impact on his day-to-day life.
The applicant has been referred to Dr Diwan who has recommended an extreme lateral interbody fusion at one level, L3/4. The surgery has been denied by the insurer and the applicant now makes a claim before the Personal Injury Commission in respect of the proposed surgery.
It should be observed that there is no issue that the applicant has suffered an injury to his back, indeed the parties registered a s 66A Lump Sum Agreement in May 2004 which included a payment for 38% loss of use of the back.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Is the proposed surgery reasonably necessary as a result of the accident on 14 December 2000.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

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 (Application) and attached documents;
(b)    Reply to the Application to Resolve a Dispute and attached documents;
(c)    Medical Assessment Certificate dated 7 July 2022, and
(d)    Application to Admit Late Documents dated 16 August 2022 and 2 July 2022.
In addition I have submissions from the applicant dated 31 August 2022 and 28 September 2022 and submissions from State of New South Wales (TAFE Commission) (the respondent) dated 27 September 2022.
I will now turn to the medical evidence.

Medical evidence

Dr Diwan

Dr Diwan is the applicant’s treating orthopaedic surgeon.
In a report dated 19 July 2018[2] to the general practitioner, Dr Diwan commented that the applicant’s pain was predominantly axiom of nature. The MRI scan had shown significant modic endplate type 1 changes to the L3/4 with acute or sub-acute herniation posteriorly. The herniation did not appear to be the main cause of the struggle, it was the back pain alone.
[2] Application page 31.
Dr Diwan noted that the applicant had undergone an L1/2 spinal fusion and it was not unusual for a level to be skipped for a juxtafusional degeneration to occur. It was the L3/4 which was now significantly compromised as a consequence of that fusion and it was his opinion that the L3/4 ongoing symptoms were as a consequence of the treatment of the injury that he sustained on 14 December 2000.
Dr Diwan opined that it appeared that the L3/4 was the main source of the ongoing symptoms and pain. He thought that a targeted treatment going forward would benefit the applicant and recommended minimally invasive L3/4 fusion by way of lateral access.
Dr Diwan prepared a report dated 31 March 2020 at the request of the applicant’s solicitors.[3]
[3] Application page 89.
In that report Dr Diwan was asked whether the motor vehicle accident had materially contributed to making the surgery reasonably necessary.
Dr Diwan had at that time reviewed Dr Bodel’s, Dr Steel’s, Dr Cochrane’s and Dr Powell’s opinions. He observed that Dr Powell did not contest the need for surgery however did state that the described modic “endplate changes at L3/4 are not consistent with the injury that Mr Pons sustained in December 2000.”
It was Dr Diwan’s opinion that the applicant’s issues related to his spine were purely and entirely related to the event in December 2000 and this included the lower lumbar surgical issues including the L5/S1 foraminal laminectomy that was performed on 21 August 2011.
Dr Diwan explained the rationale that once a spinal cord was injured, it initiates a cascade of events that leads to injury and damages the rest of the links. He said that the spinal cord could be visualised as a multi-link chain and if one link within that chain is injured or welded, there are transmission forces not just at the adjacent level but to also levels in far off places which impact adversely not just at the loading characteristics but also the movement characteristics of each individual link.
In relation to Dr Powell’s opinion that the modic changes at L3/4 were as a consequence of an acute injury and not related to the injury on 14 December 2000, Dr Diwan opined that Dr Powell was partially correct. He explained that the segment itself was not injured directly in December 2000 but it now breaks down in the presence of an L1/2 fusion.
Dr Diwan encouraged taking a common-sense approach to the argument outlined in relation to a long chain with one link of the chain being welded or fused impacting all links in the chain away from the welded segment. For that reason, Dr Diwan opined that the L5/S1 changes could be attributed to the primary injury that was sustained by the applicant in December 2000 and the also the L3/4 which was currently being debated.
Helpfully Dr Diwan explained that a level being skipped following surgical treatment of the spinal column was not an unusual finding seen by practitioners in the art of spinal surgery, indeed it was seen in approximately 20% of patients. Dr Diwan then provided two references and publications in respect of degenerative lumbar spine surgery.
Dr Diwan has prepared a further report dated 23 June 2021[4] at the request of the applicant’s solicitors. In that report Dr Diwan was asked to consider whether the applicant had suffered an injury to the L3/4 directly in the accident. Dr Diwan observed that because the accident was such a significant time ago it becomes difficult to state whether the injury was caused or not caused by the said accident. Dr Diwan refers to the mechanism of injury appeared to be significant. At an acute stage multiple levels including multiple discs, facet joints, bony elements and muscles are injured. With the fullness of time each of these areas evolves into a different presentation. This could be progressive loss of disc height, endplate changes or osteoarthrosis of the facet joint.
[4] Application page 87.
Dr Diwan observes that it was also noted by Dr Dixon that it had taken some 15 years of facet joint arthritis to advance lower down the spine and this is consistent with Dr Diwan’s opinion.
Dr Diwan said it was also reasonable to consider the L3/4 as a current target disc for the applicant’s ongoing symptoms. The evidence of the endplate changes point to this being the target disc. As to whether the accident was the cause of the L3/4 endplate changes, Dr Diwan thought in the affirmative. He explained that initially when the disc and the associated endplates are injured, these can be micro-trauma which cannot be fully and completely picked up in the scans. With the passage of time low grade inflammation can persist and persevere as the described endplate changes which is not dissimilar to a festering sore on the skin if irritation is present constantly.
Any reference to discitis when used in the context of modic endplate changes Dr Diwan describes as confusing and naive at its best. This is because the cause and mechanism of modic endplate changes was under intense investigation and there was no established cause. That is, when there is a granulation tissue or soft tissue present it’s best to describe these as endplate changes rather than inflammatory discitis.
Dr Diwan expressed certainty that the need for surgery at the L3/4 level was entirely attributable to the initial injury sustained in the accident.

Dr Mellick

33. Dr Mellick was asked to provide a nonbinding opinion in these proceedings. His report is dated 7 July 2022.

34. Dr Mellick was asked to address whether the proposed surgery arises from the incident on 14 December 20000, or subsequent surgery or related degenerative changes or a consequential injury.

35. The history taken by Dr Mellick is unfortunately not correct as he states,

“ he was half-way across he found that there were vehicles coming in the other direction and vehicle struck his foot.”

36. Dr Mellick does however understand that there was a compound fracture of the left forearm, the requirement for a fusion procedure at L1/2 level and an inpatient stay in hospital for approximately a month.

37. Dr Mellick appears to provide an opinion as to injury in that he finds that there is was no abnormality in the physical examination performed by him. He therefore concludes that the surgery does not arise from the accident in 2000.

Dr Dixon

Dr Dixon has prepared a Medical Assessment Certificate dated 28 August 2020[5] in prior proceedings before the Commission. He was asked to provide a non-binding opinion as to the nexus and need for an extreme lateral inter-body fusion at L3/4.
[5] Application page 13.
Dr Dixon outlines the circumstances of the injury on 14 December 2000 and understands the applicant suffered a head injury with loss of consciousness and felt immediate excruciating pain in the back and the left side of the body.
Dr Dixon also outlines the applicant’s treatment which is entirely consistent with the applicant’s statement. He understands that the applicant continues to have pain in his lower back with lumbar stiffness and left sciatica and has developed post-traumatic stress disorder as a result of feeling despondent about returning to a normal life.
On examination Dr Dixon found stiffness of the lumbar segment with flexion decreased by one third and with pain on back extension which was decreased by one half. There was erector spinae muscle spasm and there was tenderness at the lumbosacral level in the midline with adjacent lumbosacral facet joints. There was no gross neurological deficit present and reflexes required reinforcement. The applicant was observed to walk without a limp however toe walking and heel walking and squat test induced lower back pain. There was no tenderness of the L3/4 segment and there appeared to be modic reactive changes either side of the L4 disc suggestive of marked inflammatory status (observed on MRI) which may have been related to the past to infective discitis with residual narrowing of the L3/4 space.
Dr Dixon diagnosed the applicant as having residual sciatic pain however his low back pain was adjacent to the lumbosacral facet joints at the L5 level in the midline, he also had a radicular complaint with left sciatica but no gross neurological deficit and no radiculopathy. The applicant had residual left sciatica without compressive features and there was marked modic change at L3/4 disc space suggestive of prior discitis.
In relation to the proposed surgery, Dr Dixon found no causal nexus between the injury of December 2000 and the need for the proposed surgery. He observed that the applicant did not have any symptoms in the area and had no femoral neuralgia nor femoral neuropathy and no radiculopathy.
Dr Dixon was concerned that any fusion at L3/4 would create a mobile fused segment below his L1/2 fusion and put pressure on the L2/3 disc which would contribute further pressure to the lower lumbar spine which may lead to an L4/5 and L5/S1 disruption and instability.
Dr Dixon addressed the medical opinions of Dr Ghahreman who suggested that the surgical fusion at L1/2 may have led to extra stresses in the lower segments of the lumbar region and the lumbar sacral junction including L5/S1 causing an aggravation of the pathological changes impacting upon this level during the initial traumatic event in 2000. Dr Dixon did not agree with those remarks and thought the procedure had already taken place where the applicant had ongoing pain at the lumbosacral level with residual facet arthralgia clinically and ongoing radicular complaint with left sciatica.
Dr Bodel had also provided which he did not agree with simply stating that the surgery was not reasonably necessary given it was almost 20 years since the original injury and some disc degenerative changes are expected.
Dr Dixon agreed with the opinion of Dr Neil Cochrane who thought there was likely to have been pre-existing significant symptomatic disease which was constitutional and age-related. There was no evidence of any acute injury in or around the S1 level at the time of the subject accident and the emergence of facet arthropathy 15 years after the original accident could not be attributed to a traumatic event some 15 years earlier.
Dr James Powell provided an opinion that the subsequent degeneration was suggestive of a natural process and these were not directly influenced by the injury to the segment above and was not related to the L1 fusion undertaken for the focal trauma. Dr Powell had observed that he could not appreciate the development of pathology to the L3/4 level slipping down from the L1/2 level above, which Dr Dixon agreed with and noted that the fusion at L3/4 would create a segmented mobile defect at L2/3 and may also further impact on the applicant’s condition.
Dr Dixon also expressed concern about the applicant’s control of his diabetes in respect of his symptomatology. He also was concerned that the proposed L3/4 fusion would not significantly alter the applicant’s lower back pain and radicular complaint.

Dr Bodel

Dr Bodel has prepared a report dated 12 April 2019[6] at the request of the applicant’s solicitors.
[6] Application page 65.
Dr Bodel takes a history that the applicant’s back condition has deteriorated over time without any additional accident or injury.
Dr Bodel understood that the applicant had suffered a burst fracture of the L2 vertebral body for which he underwent a localised fusion at L1/2.
Dr Bodel said over the years that the applicant had suffered an aggravation, acceleration, exacerbation and deterioration of the disease process involving the L3/4 and L4/5 and L5/S1 discs which may have also been injured at the time of the original accident.
In addition, the limited spinal fusion at L1/2 level had put additional strain on the other lumbar disc levels and over time he had developed increasing degenerative change. Dr Bodel observed there were clinical signs of vertebral canal stenosis at L3/4 and to a lesser extent at L4/5 and there were signs of L4 nerve root involvement in the left lower limb.
Essentially Dr Bodel diagnosed the applicant as having mechanical backache associated with widespread degenerative disc disease in the lumbosacral region.
In respect of surgery, Dr Bodel thought the spinal fusion at L3/4 recommended by Dr Diwan was reasonably necessary as a direct consequence of the injury on 14 December 2000. The applicant had experienced an aggravation, acceleration, exacerbation and deterioration of a disease process being the degenerative disc disease seen in the early MRI scans which is related to the injury on 14 December 2000.
Dr Bodel has prepared a second report dated 20 May 2021.[7] In that report, Dr Bodel explained that it was quite possible that the applicant sustained an injury to L3/4 at the time of the accident however the focus was on the fusion above that level and the L3/4 level was minimally symptomatic at the time as part of the overall level of pain associated with the adjacent injury. Dr Bodel thought that the mechanism of injury was certainly sufficient enough to cause disc pathology at L3/4 at that time however.
[7] Application page 73.
Dr Bodel opined that the need for surgery arose as a result of the original injury and in the alternative postulated that the L3/4 pathology could have occurred as part of adjacent disc disease or possibly discitis, although he thought discitis was unlikely.
Dr Bodel concluded that on balance, the disc needing treatment is adjacent to the original injury, and it is primarily adjacent disc disease and would have developed as a consequence of the injury and not necessarily as a specific unrelated event, had the previous injury not occurred. There was therefore a causal link and a nexus existing between the injury on 14 December 2000 and the need for surgery as proposed.

Dr Ghahreman

Dr Ghahreman has prepared a report dated 29 June 2014 to the applicant’s then solicitors.[8] Dr Ghahreman explained that it was difficult to prove association of a certain link between the accident in 2000 and the condition for which surgery was now being offered. Nevertheless, overall he favoured the accident as an important and substantial contributing factor to the pathological changes involved in the L5/S1 level. Indeed, he commented it was quite unaccepted to negate the contribution of the event to the patient’s then pain and changes that were seen on the MRI.
[8] Application page 92.

Dr Powell

Dr Powell has prepared various reports on behalf of the respondent. His first report is dated 20 September 2013.[9] Dr Powell understands the applicant was hit by a motor vehicle which was later estimated to be travelling between 50 and 60kph. He was aware of pain around the back and other body parts at that stage.
[9] Reply page 41.
The report seems to be focused on whether the applicant can be considered to be a “seriously injured” worker, that is having a whole person impairment greater than 30%.
Dr Powell did opine that the applicant had a 22% whole person impairment in respect of the lumbar spine arising from that accident.
Dr Powell has prepared a further report dated 11 July 2019.[10] At that stage, Dr Powell understood that the applicant had undergone physiotherapy and also had an L5/S1 laminectomy for back pain which did not assist him. He had also had facet joint blocks and radiofrequency denervation without any symptomatic improvement.
[10] Reply page 60.
In relation to reported symptomatology, the applicant explained to Dr Powell that he had pain in the lower back which was radiating from the L4 to the S1 spinus process level.

Dr Powell described the applicant as having a complex history following the motor vehicle accident in which he suffered a burst fracture of L1, which was managed by acute stabilisation with posterior instrumentation. In addition, spondylotic change distally had progressed subsequently and the applicant continued to have chronic back pain. He had undergone a distal decompressive procedure at L5/S1 as well as other treatment.
Dr Powell was asked whether there had been acceleration, or deterioration of the L3 to S1 discs caused by the accident in December 2000. Dr Powell explained after having looked at the imaging of the lumbar spine between 2000 and 2018 that there had been advancement of changes involving levels between the L1/2 fusion and the sacrum which included disc bulging and protrusion at various levels, facet arthrosis, loss of disc height, gas collection in some discs on the more recent studies. Dr Powell then explained that these changes are generally grouped as lumbar spondylosis and were principally degenerative in nature.
Dr Powell explained the difficulty in trying to identify the cause of such change in circumstances where these changes are common throughout the community and occur at advancing age to varying degrees.
Dr Powell also explained the difficulty in the description of adjacent segment disease. The problem once again is that once a level had been fused the forces may be transferred to the upper level in addition to the forces that it had previously handled and this accelerates degenerative change. It also may be that the disease process which led to the initial degenerative change in the level that was fused is simply continuing along its natural history. This influence could not be identified independently in any one individual and the contributing influences cannot be subdivided with any degree of rationality.
On balance therefore, Dr Powell could not determine that the initial mechanism of injury and the sequelae, there is no indication that the applicant’s spondylotic disease in the lumbar spine had been accelerated, exacerbated or deteriorated by the specific injury at the L1/2 level that occurred in the accident in 2000.
In respect of the proposed L3/4 fusion, Dr Powell found it difficult to answer whether this could improve back pain symptoms and generally spinal fusion procedures were rarely predictably able to improve back pain symptoms.
Dr Powell also commented that on the basis of the applicant’s presentation at examination, there was not a strong indication for a mechanical basis for surgery in the lumbar region for the pain symptoms noted on the way he moves, synchronicity and local signs and so on. He would therefore have some doubt that local surgical measures would provide much in the way of symptomatic improvement.
Dr Powell also cautioned that surgery needs to be weighed against potential risks and complications, one which would be to produce pain syndrome, and others such as suitability to anaesthesia, capacity to handle surgery and so on. This should be taken into account when the applicant has diabetes requiring insulin which places him in an extremely high risk category. In addition, there was also some form of primary cardiac disorder and hypertension.
Dr Powell opined on balance that he could not see that any need for an L3/4 interbody fusion having arisen as a result directly or indirectly from the motor traffic accident in December 2000 and the localised trauma in the lumbar spine nor its natural history or sequelae.

Submissions and consideration

The applicant claims surgery as a result of the accepted injury at L1/2 and/or arising out of the actual event on 14 December 2000.
The applicant’s case, as explained in its submissions, is that the applicant has suffered a progression of lumbar spondylosis and as a result of the injury suffered in the motor vehicle accident on the basis of four different hypotheses.
The first is that it is the result of a direct injury of the discs L3/4; secondly, is the result of the injury to the lumbar spine which initiated the disease process; thirdly it is the result of an injury to the lumbar spine involving the aggravation, acceleration, exacerbation or deterioration of a pre-existing disease process or congenital condition and finally is secondary to an accepted injury as a result of treatment.
The applicant urges that the opinion of Dr Powell is given little weight as he has not relied on the facts that are evident when looking at the material, in particular the circumstances of the accident.
In paragraph 1.7 of the applicant’s submissions they say
“1.7 In the applicant’s submission, Dr Powell’s hypothesis can be shown to be invalid on the facts when regard is had to:
(a)The inferences that arise from the objective facts in the uncontroverted Police report that the likely biomechanics involved likely five points of impact in the MVA rather than the two Dr Powell assumes;
(b)The unexplained absence of pre-existing lumbar spine symptomatology;
(c)The onset of radiculopathy type lumbar symptoms clinically reported on 1 February 2001 and referral 15 March 2001 for physiotherapy to the lumbar spine including at L3/4 culminating in an MRI confirmation of annular tear at L3/4 on 12 June 2001.”
The applicant further says that the medical opinions of Medical Assessors Dixon and Mellick should be given little weight as they, like Dr Powell, have no history of the biomechanics involved or the onset of symptoms or the early onset of treatment to the lumbar spine.
That is, that these opinions have not been prepared in a “fair climate” as the history and assumptions they rely on are incorrect.
The applicant submits that attention must be given to the seriousness of the motor vehicle accident the applicant was involved in. The driver of the vehicle which collided with the applicant estimates his speed was at 40kph which is some significant speed[11].
[11] Application page 681.
The police report of damage to the vehicle noted that there was damage to the front bonnet, front nearside door, roof and window. The damage was of such significance that the car was not able to be driven away. The police then concluded the mechanism of injury based on witness statements to be that the applicant “on the driver’s side windscreen and was subsequently thrown into the air and onto the centre line of both east and westbound traffic. The pedestrian has landed approximately 100 metres west of the intersection of George Street and Pitt Street.[12]”
[12] Application page 681.
The inference that the applicant asks me to make is that there was a collision with the left side of the driver’s vehicle which catapulted the applicant into the air before first impacting with the vehicle’s roof, then the windscreen followed by the bonnet before being pushed forward and landing flat on his back.
I do not agree that I can accept such a submission. Quite clearly there is a violent collision. How the applicants body respondent and hit the car is a matter of speculation. Though there was damage to various parts of the car, it may be that the applicant struck various parts of the car car at once, for example the lower part of the body hit the door but the upper part hit the roof.
The applicant submits that treatment in respect of his back condition appears to be shortly thereafter the incident. He attends Dr Steel’s clinic on 1 February 2000 and a history is taken of swelling of the lumbar spine which results in hospitalisation on Australia Day in 2001 and of back pain down the lateral side of the thigh with pins and needles.[13]
[13] Application page 534.
The applicant then returns to see Dr Steel on 15 March 2001[14] where he complains of pins and needles in his feet and there is a referral for physiotherapy. There appears to be ongoing complaints of lumbar back pain at L3/4 and L4/5 all consistent with a lumbar spine injury.
[14] Application page 258.
On 12 June 2001 the applicant then goes to see Dr Steel again and continues to complain of sciatic pain and he is referred to Dr Rosenthal, occupational physician for the management of that pain. There was a CT undertaken on the same day which discloses an L3/4 annular bulge, a disc protrusion and possible nerve root impingement.[15]
[15] Application page 679.
The applicant’s submissions then refer to the MRI investigation on 19 August 2002 which shows dehydration of discs and desiccation of intervertebral discs between L3 and S1 with diffuse bulging indicative of a disc degeneration at L3/4 postural annular tear.
Consistent with the violent nature of the collision, Dr Bodel’s opinion accepts that the collision could have resulted in injury to L3/4 and the development of pathology at that level. However, Dr Bodel’s ultimate view is that the motor vehicle accident involved an aggravation, acceleration, exacerbation and deterioration of a disease process involving L3/4, L4/5 and L5/S1 which would have been compounded and exacerbated by additional strain as a consequence of the fusion at the L1/2 level.
The applicant in his submissions points out that there is a complete absence of any pre-existing symptomatology in respect of the lower lumbar spine and if there was, as proposed by Dr Powell, it did not become symptomatic until immediately after the motor vehicle accident which the applicant says supports an inference of a causal nexus between the onset of symptoms and the motor vehicle accident.
Dr Powell, it is submitted, does not have a good understanding of the biomechanics of the accident. It is then said, as Dr Powell is not apprised fully of the mechanics of the injury, then the alternate hypothesis of Drs Steel and Bodel should prevail. It is submitted that the hypothesis of Dr Steel and Dr Bodel is more persuasive as it is more consistent with the applicant’s direct account, damage to the vehicle and the contemporaneous complaints of left-sided pain verified on the MRI in 2001 disclosing an annular tear at L3/4.
I must say that such a submission is somewhat persuasive as it is consistent with the contemporaneous onset of lumbar pain which was then verified by annular tear pathology as disclosed in the investigations.
In relation to the opinion of Dr Mellick, the applicant quite clearly identifies what is a deficit in the information that he understands. Dr Mellick assumes that the applicant was “half way across (the roadway) he found there were vehicles coming in the other direction and a vehicle struck his foot. He was knocked off balance and he remembers the impact and rolling on the road”.[16] Quite clearly, as submitted by the applicant, his opinion does not really have a fair climate as he does not have a proper understanding of the seriousness of the collision between the applicant and the car.
[16] Reply page 2.
Dr Dixon in his opinion, it was submitted cannot be reconciled with Dr Bodel or Dr Powell as he finds a causal nexus being complaints at L5 but in terms of L3/4 appears to adopt Dr Powell’s diagnosis of constitutional degeneration at L3/4. He rejects that there were not forces exerted distal to L1/2 sufficient to cause injury at L5.

Respondent’s submissions

The respondent is critical that the applicant relies on Dr Diwan’s opinion despite the fact that he has not consulted with Dr Diwan since July 2018, some four years ago.
The respondent submitted that the opinion of Dr Mellick, should be persuasive to the Commission, it being an opinion of an independent medical practitioner who has reviewed all the medical reports in these proceedings. It was his opinion based on his own physical examination of the applicant that there was no abnormality and that the surgery recommended by Dr Diwan was not reasonably necessary as a result of the injury on 14 December 2000.
So far as Dr Dixon providing an opinion in a fair climate, the respondent submitted that he understood that there was a significant collision with a motor vehicle which required the applicant to be taken by ambulance to St Vincent’s Hospital where he remained for five weeks. He was also aware that the applicant was discharged wearing a back brace and had a spinal fusion at L1/2 using pedicle screws and rods. The respondent submits that there were only two points of impact that are relevant, the first point where the applicant collided with the driver’s side windscreen and was thrown into the air landing on the centre line of both east and westbound lanes, that being the second point of impact.
The respondent in its submissions concedes that Dr Mellick may not have had a correct history of the biodynamics involved in the accident, however it is submitted that this is not of such a failure to render his opinion to be described as “not being provided in a fair climate”. Dr Mellick, like Dr Dixon, also had a history provided by other doctors, understanding that the applicant underwent significant surgery and provides an opinion that the proposed surgery is not reasonably necessary as a result of the accident in 2000.
Ultimately the respondent submits that Dr Mellick’s opinion ought to be given a significant amount of weight together with that of Dr Dixon as they are independent assessors of the applicant’s condition.
Dr Powell’s opinion ought also be accepted and it should be concluded that the extreme lateral interbody fusion is not reasonably necessary as a result of the accident on 14 December 2000.

CONSIDERATION

The claim is based upon s60 of the Workers Compensation Act 1987. The section provides that an employer is liable to pay for medical treatment if it is received as a result of an injury and if it is reasonably necessary,
This dispute is not a straightforward one, there is significant divergent medical opinion.
The starting point must be the motor vehicle accident. The motor vehicle accident was of some significant force between a pedestrian and a car travelling at least at 40kph. There was damage to the vehicle at various points and there is no dispute that the applicant struck the vehicle, was flung in the air and then landed on the road. Whether the applicant’s body struck the vehicle at many points or merely one, I think is of little moment. The real observation should be made that this was a significant collision where the applicant, unprepared, was struck by a vehicle travelling at speed causing significant trauma.
The applicant was then transferred to hospital where he remained as an inpatient for some five weeks. This in itself indicates there has been a serious and violent event.
The applicant in its submissions then details attendance upon doctors with the onset of symptomatology. These attendances at doctors stand out, to my mind, that indicate and supportive of an injury at L3/4 at that time of the accident. It is also evident that there was no complaint in respect of these body parts before the motor vehicle accident.
What is clear, is that authorities such as Murphy v Allity Management Services Pty Ltd[17] provide support that the injurious event does not have to be the only cause of the need for relevant treatment for the order sought to be made. In this case there is agreement that the applicant has indeed suffered an injury pursuant to s 4 of the Workers Compensation Act 1987. The relevant test is whether the motor vehicle accident has made a material contribution for the proposed surgery to be necessary.
[17] [2015] NSWWCCPD 49
Applying a common-sense test of causation as espoused in authorities such as Kooragang Cement v Bates,[18] I find that the treatment is reasonably necessary as a result of the injury.
[18] [1994] 35 NSWLR 452; 10 NSWCCR796
I prefer the well-reasoned opinion of Dr Diwan. He has provided a clear basis for his opinion. He is a practising surgeon that thinks that the surgery is appropriate. I find his explanation as to juxtafusional degeneration persuasive. I accept that the L3/4 which was now significantly compromised as a consequence of the earlier fusion and that the L3/4 ongoing symptoms were as a consequence of the treatment of the injury that the applicant sustained on 14 December 2000.
I should comment that I do find of some concern that the applicant has not had a more recent consultation with Dr Diwan in respect of the reasonable necessity for the surgery. This is something that I have considered and on balance find that although it is damaging to the applicant’s case it is not fatal.
The applicant says that Dr Diwan has remained abreast of the development of the lumbar symptomatology through the applicant’s treating doctor, notably Dr Tan who provided a report dated 22 January 2022 which included a history of faecal incontinence which she opined should be addressed through surgery sooner rather than later but ultimately says the applicant should be returned to the care of Dr Diwan for further consultation and opinion in relation to this. Dr Diwan has provided more recent reports which I find supports his earlier opinion.
I also note that there are various pathways that the applicant has submitted that this injury occurred. What is telling to my mind is the onset of pain shortly after the accident and the serious surgery that the applicant has had to undergo. I am persuaded that both the applicant sustained an injury to the L3/4 level at the time of the accident and then there has been ongoing subsequent failure associated with the previous surgery. I am persuaded by the opinion of Dr Diwan who is the applicant’s treating surgeon in respect of the failure at joints though not proximal to the joint where the surgery was performed.
In making this finding I also observe that two non-binding opinions have been provided on this exact issue. After considering those opinions, I am still persuaded by Dr Diwan who has provided a well-reasoned and therefore persuasive report. I bear in mind that Dr Diwan is a practising surgeon and I find he is in the best position to give evidence as to.
I prefer the opinion of Dr Diwan over Dr Powell. Whilst it may be true that there can be many people in the community that have similar degenerative changes, I can’t ignore the violent nature of the collision or the opinion of Dr Diwan, an active surgeon as to juxtafusional degeneration.
So far as the suitability of the applicant to undergo surgery due to comorbid conditions, I am not persuaded that these present a barrier to surgery. Surgeries take place regularly in Australia for people with diabetes and other health conditions.
I am therefore persuaded on balance that the surgery should be provided. I should comment that in circumstances where there is such a divergence of medical opinion, there will always be some doubt and room for different minds to make different decisions. After weighing up all the evidence in this dispute I am ‘comfortably satisfied’ that the proposed surgery is reasonably necessary.

[2022] NSWPIC 666

2 December 2022