Qiu v Acare Sydney Pty Ltd - [2025] NSWPIC 382

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Qiu v Acare Sydney Pty Ltd [2025] NSWPIC 382
APPLICANT:	Ling Qiu
RESPONDENT:	Acare Sydney Pty Ltd
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	6 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for right C5/6 foraminotomy; applicant claimed to have sustained consequential condition of her cervical spine as a result of surgery to her right knee; surgery to right knee was reasonably necessary as a result of consequential condition sustained whilst applicant was leaving a pain management appointment for original injury to her lumbar spine; respondent disputed that applicant had sustained consequential condition of her cervical spine and the reasonable necessity of proposed surgery; Seltsam Pty Limited v McGuiness, EMI (Australia) Ltd v Bes, Kooragang Cement Pty Ltd v Bates, and Diab v NRMA Ltd considered; Held – applicant sustained consequential condition of her cervical spine as a result of injury to her lumbar spine; proposed medical treatment reasonably necessary; respondent to pay the costs of right C5/6 foraminotomy.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent is to pay, pursuant to s 60 of the Workers Compensation Act 1987, the costs of and incidental to right C5/6 foraminotomy. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Ling Qiu (Ms Qiu) was employed by the respondent, Acare Sydney Pty Ltd (Acare), as a personal carer.
Ms Qiu sustained an injury to her back on 18 July 2019, when she was struck on the back by a bedhead. Ms Qiu has also sustained a consequential condition of her right knee and claims to have sustained a consequential condition of her cervical spine.
On 4 December 2023, the applicant’s treating neurosurgeon, Dr Simon McKechnie, requested approval from the respondent’s insurer, EML, to perform a right C5/6 foraminotomy.
On 19 December 2023, EML issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
EML disputed liability for the proposed surgery, on the basis that the treatment was not reasonably necessary as a result of an injury, as required by s 60 of the Workers Compensation Act 1987 (the 1987 Act).
EML advised the applicant that it required her to attend an independent medical examination (IME). EML had provided the applicant with three IME options on 12 December 2023 but had not heard from her. EML expected to be in a position to make a further decision once it had received the IME report.
On 24 May 2024, EML issued the applicant with a further notice pursuant to s 78 of the 1998 Act.
EML disputed liability for consequential condition of the applicant’s cervical spine, as a result of the injury on 19 August 2019 [sic]. EML disputed that the proposed surgery related to the applicant’s injury.
It appears that EML was requested to review its decision.
On 31 May 2024, EML advised the applicant’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWPIC 382
Decision Date: 6 August 2025

CaseChat Overview and Summary

Qiu commenced proceedings against Acare Sydney Pty Ltd, seeking compensation under the Workers Compensation Act 1987 for a claimed consequential condition of her cervical spine, which arose as a result of an injury to her lumbar spine sustained during employment. The dispute centred on the necessity of a proposed right C5/6 foraminotomy, which the insurer refused to fund, contending that the proposed surgery was not reasonably necessary. The matter was determined in the Workers Compensation Commission of New South Wales.

The central legal issue before the Commission was whether the applicant had sustained a consequential condition of her cervical spine due to the injury to her lumbar spine and whether the proposed surgery was reasonably necessary. This involved assessing the evidence and opinions of medical experts, including the applicant’s treating neurosurgeon and the insurer’s independent medical examiner, to determine the validity of the applicant’s claim and the necessity of the proposed surgical intervention.

In resolving the dispute, the Commission considered the opinions of Dr McKechnie, the applicant's treating neurosurgeon, who concluded that the cervical symptoms were directly related to the original lumbar injury. The Commission found Dr McKechnie's assessment to be credible, noting that the cervical symptoms had emerged post-treatment for the work-related injury and had persisted despite conservative management. The Commission also rejected the insurer’s independent medical examiner's report, which did not align with the findings of the applicant's subsequent nerve conduction studies. Based on the evidence, the Commission held that the applicant had indeed sustained a consequential cervical condition and that the proposed right C5/6 foraminotomy was reasonably necessary.

The Commission ordered Acare Sydney Pty Ltd to fund the right C5/6 foraminotomy for the applicant and to pay the costs associated with the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Dr McKechnie understood that the applicant may require assessment by an IME appointed by the insurer. This would be helpful if the assessment was performed by a neurosurgeon who actually performs the operation. (Emphasis in original). Dr McKechnie next reviewed the applicant on 8 March 2024. Dr McKechnie had recommended a right C5/6 foraminotomy. The applicant had had several injections into her right knee, which were painful and unsuccessful. She did not wish to proceed with the CT guided cortisone injection. Dr McKechnie reported to the applicant’s solicitors on 12 March 2024. Dr McKechnie noted that follow up MRI scans of the applicant’s cervical and lumbar spine demonstrated several small disc protrusions, most severe on the right, with moderate right C5/6 foraminal stenosis, mainly due to a disc protrusion compressing the right C6 nerve root. The applicant had tried extensive medication, exercises, and physiotherapy without success. She had undergone three unsuccessful cortisone injections in the right shoulder, and did not wish to proceed with further injection therapy. Dr McKechnie therefore offered her a right C5/6 foraminotomy. Dr McKechnie opined that the findings on cervical MRI were consistent with the applicant’s presentation. Given the investigation findings, failure of conservative management, and persistent pain, Dr McKechnie had recommended that the applicant proceed with a right C5/6 foraminotomy. As the symptoms occurred following treatment for the 2019 work related injury, Dr McKechnie opined they were directly related to the injury. Dr McKechnie reported to Dr Tjeuw on 16 July 2024. The applicant was still complaining of radicular type pain extending from the neck through the right arm and into the hand. Dr McKechnie had read Dr Michael Biggs’ (the respondent’s IME) report, and “I am unsure whether he realises the patient did eventually proceed with the Nerve Conduction study which did not demonstrate any Ulnar Nerve pathology.” (Emphasis in original). Dr McKechnie reported that although the applicant’s sharp shooting pain and sensory disturbance extended more through the medial aspect, there was no nerve root compression other than [at] C6. “I did suggest” a diagnostic injection to confirm this was the symptomatic site, given the absence of C8 or T1 pathology, but the applicant found previous injections painful and did not wish to proceed. (Emphasis in original). The applicant’s pain had continued despite all other conservative treatment options, and given the absence of any other neural pathology, Dr McKechnie opined it would be reasonable to perform the proposed surgery. Dr Hoang reported to Dr Tjeuw on 23 November 2021. Dr Hoang recorded, relevantly, that the applicant complained of numbness in the right fourth and fifth fingers. Dr Hassan performed NCS on 28 September 2022. His visit notes recorded “Right D4/5 numbness ? ulnar nerve dysfunction”. Dr Hassan concluded that the values were all normal, with no asymmetry. He noted “Normal study.”