Qiu v Acare Sydney Pty Ltd

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 solicitors that it maintained its decision to dispute liability for the surgery.
By letter dated 4 March 2025, the applicant’s solicitors requested a review of EML’s decision.
On 14 March 2025, EML advised the applicant’s solicitors that it maintained its decision to dispute liability for the surgery.
The applicant lodged an Application to Resolve a Dispute (the Application) on
14 March 2025.
The applicant claimed that on 19 August 2019 [sic] she was packing some client’s items when a bedhead fell and hit her back. She sustained a consequential condition to her right knee and neck on 26 October 2020 when she slipped and landed on her right foot whilst being picked up by car after undergoing pain management for her back injury.
The applicant also claimed that she sustained a consequential condition of her neck, right arm, and fingers as a result of how she was positioned during surgery [to her right knee] performed on 5 October 2021.
The Application also pleaded that the applicant sustained an aggravation, acceleration, exacerbation or deterioration of a disease, deemed to have happened on 19 August 2019 [sic].
The applicant claimed the sum of $6,500 in respect of the costs of right C5/6 foraminotomy “and any other incidental & ancillary expenses required as a result of the aforementioned surgical procedure.”
The respondent lodged its Reply on 7 April 2025.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant has sustained a consequential condition of her neck, and
(b) whether the proposed surgery is reasonably necessary as a result of injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for in person conciliation/arbitration hearing on 15 July 2025.
Mr Stephen Hickey of counsel, instructed by Mr Lam and Ms Guo, appeared for the applicant, who was present. Mr Davis of counsel, instructed by Ms Necovski, appeared for the respondent. A representative of EML also attended.
The Application was amended by consent to plead that the injury occurred on 18 July 2019. Mr Hickey advised that the applicant did not rely on s 4(b)(ii) of the 1987 Act.
Some of the medical reports in this matter refer to the date of injury as 19 August 2019, the date originally pleaded in the Application, and I have used that date when it appears in the reports. Nothing turns on this.
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 and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no application to rely on oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Ling Qiu

The applicant’s statement is dated 26 February 2025.
On 18 July 2019, she was helping a client move. While she was packing some items, a bedhead fell and hit her on the back. She estimated its weight as approximately 20kg.
She stopped working in August 2019, due to back pain.
She saw her GP (general practitioner), Dr Thomas Tjeuw, on 19 August 2019.
Dr Tjeuw referred her to pain management because her pain was not improving.
On 26 October 2020, she was being picked up by a cab driver after finishing pain management treatment. She had to move towards the car. It was raining heavily and the driver yelled at her to hurry up. She tried to get into the car and her right foot slipped off the trim of the door.
Her foot landed heavily on the ground, and she immediately felt sharp pain in her right knee. Her whole body was jerked. She felt pain in her neck but was focused on the pain to her right knee.
She was referred to Dr Quang Dao, who arranged for an MRI. She had right knee arthroscopy in October 2021, performed by Dr Dao.
On the day after her right knee surgery, she felt pain in her neck and numbness in her right hand, running down to her little and ring fingers.
She complained about her neck pain to Dr McKechnie. He referred her for right knee injections.
Dr Dao referred her for an articular injection, which she had on 14 February 2022. After the injection, she felt sharp pain in her neck and back.
She sought a second opinion for management of her right knee from Dr Ke Huang in September 2022. He recommended open exploration and excision of a ganglion.
She felt pain in her right knee, back and neck, radiating down to her right hand. She felt numbness in her right arm, right shoulder, right elbow, thumb, index, and middle fingers. She felt constant numbness and pain in her pinky [sic] and wedding ring finger.
There were occasions where the pain became very painful, and her right hand and right arm shook.
She felt increased pain in her neck and back from sitting for 5 to 10 minutes. She changed the way she sat or moved her neck to help manage the pain.
The pain had affected her ability to do some household chores. She could not squat or lift heavy objects. She would ask her sons for help. Sometimes her mother and brother would help.
Her sleep was often interrupted by pain, and she averaged only about three hours of sleep a day.
She often got severe headaches and migraines, which she had been told were coming from her neck. She had to take medication for this.
Dr McKechnie had recommended she have right C5/6 foraminotomy.
She wished to have the surgery. She still felt constant pain in her neck and right shoulder, arm, right elbow, right thumb, index finger, and middle finger. She also felt constant numbness and pain in her pinky [sic] finger and wedding ring finger. There were days when she would not be doing anything strenuous, but the pain suddenly became very bad. She wanted to try anything to help manage that pain.
She last saw Dr McKechnie on 2 January 2025. She told the doctor about the pain in her neck, right arm, and elbow. She felt sharp pain when she tried to pick up her phone while watching TV.
Dr McKechnie told her the pain was coming from her nerves, and she still needed surgery. He recommended that she proceed with the injection [sic] now. She wanted to proceed with it, but the insurer would not agree to pay for it.

Medical evidence

Dr Quang Dao – orthopaedic knee surgeon

Dr Dao performed a debridement of a ganglion cyst on the applicant’s right knee on
5 October 2021.
On 18 October 2021, Dr Dao reported to Dr Tjeuw that the applicant had reported altered sensation in the ulnar nerve distribution of her right hand.
On examination, Dr Dao recorded that the applicant had altered sensation in the fifth digit and on half of the fourth digit of her right hand. The motor function was intact.
On 1 December 2021, Dr Dao reported to Dr Tjeuw that the applicant was complaining of neck and lower back pain, associated with tingling sensation.

Dr Simon McKechnie – neurosurgeon

Dr McKechnie has provided numerous reports, not all of which are relevant to the matters in dispute. Many of his reports bear the same erroneous date (probably due to a printing error), but it is possible to place them in chronological order by reference to the dates on which he examined Ms Qiu.
Dr McKechnie reviewed the applicant on 26 October 2021, three weeks after her right knee surgery.
Following the surgery, the applicant had noticed severe numbness in the fourth and fifth fingers of her right hand. Dr McKechnie opined that this was likely due to an ulnar nerve issue. He hoped this would recover in the next few months, particularly when the applicant stopped using crutches.
Dr McKechnie next reviewed the applicant on 30 November 2021.
The applicant complained of worsening neck pain, with some radiation through the right shoulder and occasionally the arm. The medial two digits of her hand were still numb following the surgery. Dr McKechnie opined that this was likely due to ulnar inflammation. If the symptoms persisted, he would organise cervical and ulnar nerve investigations.
Dr McKechnie next reviewed the applicant on 28 December 2021.
The applicant still complained of numbness and mild weakness in the right ulnar nerve distribution. Dr McKechnie had referred her for nerve conduction studies (NCS) to confirm the diagnosis and guide treatment options, such as ulnar nerve decompression surgery.
Dr McKechnie again reviewed the applicant on 28 February 2022. She still complained of sensory disturbance in the medial two digits of her right hand and slight weakness in the hands that occurred immediately after her right knee surgery.
Dr McKechnie next reviewed the applicant on 17 March 2022.
The applicant still complained of paraesthesia and sensory loss in the medial two fingers of her right hand. She felt they were slightly weak. There was also intermittent arm pain.
NCS had not been approved, and Dr McKechnie recommended the applicant proceed with this test privately.
Dr McKechnie reported to EML on 6 June 2022.
Dr McKechnie responded to questions, which are not in evidence, from EML. The report appears to have been provided in support of the referral of the applicant for NCS.
Dr McKechnie set out the history of the injury and subsequent events.
Dr McKechnie reported that immediately following the surgery to her right knee, the applicant noticed increased neck and right arm pain, with the new onset of severe numbness in the fourth and fifth fingers of her right hand. In Dr McKechnie’s opinion, this was likely due to ulnar nerve dysfunction, which is a recognised complication of any surgical procedure involving anaesthesia, due to elbow positioning.
As this issue occurred immediately after the applicant’s anaesthesia, Dr McKechnie opined that the symptoms and need for investigation, including NCS, were entirely related to the applicant’s claim.
Dr McKechnie confirmed that the applicant did not complain of any previous signs or symptoms related to ulnar nerve dysfunction until immediately following the right knee surgery. The numbness continued and required NCS to confirm the diagnosis and guide further treatment options.
Dr McKechnie reviewed the applicant on 19 July 2022.
The applicant was still complaining of sensory disturbance and pain extending through the right elbow to the medial two digits of the right hand.
Dr McKechnie gave the applicant a referral to Dr Bassel Hassan, consultant neurologist, for NCS.
Dr McKechnie next reviewed the applicant on 16 August 2022.
The applicant had received approval for right upper limb NCS. She was feeling pain in the forearm and should proceed with an elbow ultrasound to assess for tendinitis or muscle tears.
Dr McKechnie again reviewed the applicant on 10 October 2023.
The applicant was still complaining of persistent pain in the neck and back, with intermittent radiation through the right arm and a feeling of distal numbness. There had been no improvement with treatment options.
Dr McKechnie had referred the applicant for follow up cervical and lumbar spine MRI to reassess the pathology and guide treatment options.
Dr McKechnie next reviewed the applicant on 4 December 2023.
The applicant had complained of increasingly severe neck and radicular right arm pain, consistent with the MRI findings of C6 nerve root compression.
The applicant wished to proceed with surgery. Dr McKechnie had offered her a right C5/6 foraminotomy. “In general,” there was an 80% to 90% chance of improvement in the radicular arm pain, although numbness and neck pain may remain.
Dr McKechnie next reviewed the applicant on 4 January 2024.
The applicant was still complaining of neck and back pain with radicular pain extending mainly through the right arm, consistent with MRI findings of right C6 nerve root compression.
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 Phu D Hoang - physiotherapist

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 Bassel Hassan - neurologist

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.”

Dr Matthew M Giblin – orthopaedic surgeon

Dr Giblin was qualified by the applicant’s former solicitors and reported first on
20 December 2022.
Dr Giblin recorded a consistent history of the injury, correctly recording that it occurred on
18 July 2019, and the subsequent injury to the applicant’s right knee on 26 October 2020.
Dr Giblin recorded that on the day following surgery to her right knee, the applicant noticed numbness in her right hand, going down to her little and ring finger. Dr McKechnie’s opinion was that she might have had some compression of the ulnar nerve of the elbow. Conservative treatment was suggested.
The applicant complained of ulnar elbow pain and pins and needles in the ulnar two digits of the right hand, persistent low back pain, and persistent right knee pain.
The applicant was not having physiotherapy. She was taking tablets that she could not name, which were considered a strong pain killer. She continued under the care of her GP and Dr McKechnie.
Dr Giblin recorded that the applicant’s right hand continued to bother her. She had numbness in her fingers. Occasionally her hand became stiff, and she did not have the grip strength she used to have.
Dr Giblin opined that the applicant had suffered a soft tissue injury to her lumbar spine and her right knee injury appeared to be an aggravation of underlying degenerative change and the possibility of a ganglion cyst associated with the meniscus. Post-operatively, the applicant had developed an ulnar neuritis, which was most likely due to the positioning on the operating table.
Dr Giblin noted that Dr McKechnie was still monitoring the applicant’s right elbow, so there was a possibility this may require a neurolysis of the ulnar nerve.

Dr Giblin next reported on 22 October 2024.
There had been no major change in the applicant’s right knee, low back, or right leg. The pain in her neck and right arm had “become an issue to her”. Dr McKechnie had suggested she have a right sided C6 nerve root injection, but she declined, and he had now suggested she have a right C5/6 foraminotomy.
The applicant complained of pain in her neck with associated migraines from time to time, and pain radiating into the right arm, but not necessarily in a radicular pattern. Most of the pain seemed to be in the ulnar two digits, although she occasionally had pain down the anterior aspect of the right forearm, and the pain occasionally went to part of the thumb.
Dr Giblin noted that Dr Hassan’s report dated 28 September 2022 was a normal study for right ulnar nerve symptoms.
Dr Giblin opined that, in relation to whether the applicant’s current symptoms related to the C5/6 level, she should have a right sided C5/6 foraminal steroid, as suggested by
Dr McKechnie. If that gave good relief of her symptoms, then the applicant should proceed with a foraminotomy. The applicant also had quite significant neck pain. If the foraminotomy helped her arm pain, but not her neck pain, she may end up having a cervical fusion.
Dr Giblin understood Dr Biggs’ concerns. The applicant’s symptoms did not typically fit C6 nerve root irritation. However, not everybody was “wired up” the same way, and occasionally a patient’s C6 nerve root may carry fibres from other nerves.
The fact that Dr Hassan felt the applicant’s neurological studies were negative for ulnar neuropathy would indicate the problem may well be coming from her cervical spine, or she would have non radicular complaints. The C5/6 injection would help elucidate those problems.
Dr Giblin opined that the applicant did require a foraminotomy, and the issue was to alleviate any irritation of the nerve root. He did not believe the problem in the applicant’s neck related to either the injury on 18 July 2019 or 26 October 2020. The reason for the surgery was the applicant’s right arm pain, which had occurred post-surgery for her right knee.
Dr Giblin’s final report is dated 21 February 2025.
In relation to the change of diagnosis of the applicant’s right arm pain, Dr Giblin reported that when she was initially seen, her clinical symptoms and pattern tended to fit with ulnar neuropathy.
Between Dr Giblin’s two reports, the applicant was seen by a neurologist, and the studies were negative for ulnar neuropathy. The applicant’s cervical spine issues were then revisited by Dr McKechnie, who felt the problem probably related to the right sided C5/6 foramen.
Dr Giblin again opined that a C5/6 injection would help elucidate whether the applicant’s problem was coming from the cervical spine. The symptoms in the applicant’s right arm occurred post-operatively, so the possibility was that there had been some irritation of the C6 nerve root and the C5/6 foramen during surgery.

Dr Roger Rowe – orthopaedic surgeon

Dr Rowe was qualified by the respondent.
Dr Rowe’s report dated 9 February 2024 is in evidence. He has referred to examinations of the applicant on 13 August 2021 and 18 October 2023, but the evidence does not include reports of those examinations.
Dr Rowe recorded a consistent history.
The applicant had developed a throbbing headache some time in 2023. It was often associated with such severe pain that she vomited for hours. She developed intolerance of light and was unable to move due to pain. She also had headaches of lesser severity that persisted for a few days at a time.
The applicant told Dr Rowe that she felt there was “an elephant sitting on the back of my neck” on both sides.
Dr Rowe noted that Dr McKechnie had referred the applicant for MRI of the full spine.
Dr McKechnie had suggested a right C5/6 foraminotomy. The applicant was under the impression that such surgery would eliminate the majority of her pain.
The applicant complained that the whole of her right arm felt weak, even when she was brushing her teeth. At times she had numbness of the ulnar two digits of her right hand.
Dr Rowe opined that there was no indication to relate pathology in the applicant’s neck to the injury on 19 August 2019. There was no history of any neck injury or accident. There was no mention of any neck problems in Dr Rowe’s earlier reports, or those of other doctors. The first mention of neck symptoms appeared to have been in 2023.
Dr Rowe concluded there was no relationship between the request for surgery and the injury on 19 August 2019.
Dr Rowe opined that the applicant’s symptoms were most probably stress related, rather than arising from the degenerative change at C5/6. There was no evidence of specifically localised pathology in the spine, and no localised neurological deficit. The applicant’s complaint was more headache than anything else.
In the absence of any specific localising sign and radiculopathy, Dr Rowe opined that the proposed surgery was highly unlikely to provide the applicant with any relief.

Dr Michael Biggs – neurosurgeon

Dr Biggs reported on 22 April 2024.
Dr Biggs recorded a consistent history of the initial injury and the subsequent injury to and treatment of the applicant’s right knee.
The applicant told Dr Biggs that when she awoke from the anaesthetic, she noticed numbness in the right fourth and fifth fingers, and this had persisted.
Dr Biggs “quizzed [the applicant] carefully on this”. She told him both the medial and lateral sides of the fourth finger were affected. The fact that it was not split fourth finger was important when trying to determine whether the applicant suffered an ulnar nerve problem whilst under anaesthetic.
The applicant had since noticed that her right hand got colder than the left. She had problems cleaning her teeth with her right hand, because bending her elbow for that time lead to her right arm giving way. She had to support her right elbow with her left hand. She could not sleep on her right side.
Dr Biggs also recorded a history of headaches and vomiting after the surgery. The applicant would develop pain at the back of her head, extending through the occiput to the vertex and into both eyes and ears. This, together with low back pain, made it difficult for her to sleep.
The applicant had undergone physiotherapy and hydrotherapy, both of which were beneficial. She would prefer to do both, but the insurer would not allow that. She had been managed at a pain clinic, but did not find it beneficial. The arthroscopy did not help her. She had had right knee cortisone injections that allegedly made her worse.
The applicant had been assessed by a neurosurgeon many times and had sought a second neurological opinion. She was receiving physiotherapy and massage, each once per week. She used sleeping pills and pain killers.
Dr Biggs opined that the applicant had suffered a soft tissue mechanical low back injury on 19 August 2019. She continued to be symptomatic. Whilst attending a pain clinic, the applicant suffered an injury to her right knee that Dr Biggs believed, from the records, was an exacerbation of a ganglion cyst. Despite surgery, the applicant still complained of right knee pain.
It had been suggested that the applicant undergo NCS to assess her ulnar nerve function. As Dr McKechnie had pointed out, it was not unusual to develop ulnar nerve symptoms from anaesthetic/surgery, usually due to arm positioning with flexed elbow. The NCS had apparently not been approved.
Because the applicant’s sensory complaint did not split the fourth finger, as would be expected for ulnar neuropathy, and there was no wasting or weakness of the ulnar supplied musculature, Dr Biggs suspected the NCS would be normal. Generally, when the whole fourth finger was involved in sensory loss, “one thinks of a C8 nerve root lesion.” There was no compression of the right C8 nerve root on MRI.
When Dr Biggs examined the applicant, she “definitely” did not complain of C6 radicular symptoms that extended to the radial forearm and thumb.
Dr Biggs’ diagnoses were:
·        mechanical soft tissue low back pain. No radiculopathy;
·        right knee ganglion cyst that had been treated surgically;
·        unexplained right fourth/fifth finger numbness, and
·        degenerative neck pain and associated headache.
Dr Biggs agreed with Dr Rowe. He did not think Ms Qiu’s [neck] symptoms related to the injury on 19 August 2019. They were degenerative in nature. The applicant “definitely” did not require a right C5/6 foraminotomy, as she had no right C6 radicular symptoms.
Dr Biggs opined that the diagnosis of right C5/6 disc protrusion and right C6 nerve root compression did not relate to the injury. It was degenerative in nature.

SUBMISSIONS

Counsels’ submissions have been recorded. I will therefore summarise the main points.

Applicant

The applicant submitted the evidence allowed me to determine that her positioning during surgery to her right knee caused the condition of her neck for which she sought the surgery proposed by Dr McKechnie.
The applicant referred to Dr McKechnie’s evidence and that of Dr Dao and Dr Hoang and submitted there was a strong inference, and it was “fairly clear”, that something untoward occurred during the surgery.
The applicant also relied on the evidence of Dr Giblin.
The applicant referred to the decision of the High Court in Mahony v J Kruschich (Demolitions) Pty Ltd.[1] She submitted the causal chain between the injury and the necessity for surgery to her knee was unbroken. There was no novus actus interveniens that took her outside the causal chain.
[1] [1985] HCA 37; (1985) 156 CLR 522.
The applicant submitted that Dr Giblin having expressed the opinion that there was a “possibility” there had been irritation of the applicant’s C6 nerve root and C5/6 foramen during surgery did not mean I could not find positively that the need for surgery was due to the applicant’s positioning during knee surgery.
The applicant referred to the decisions of Seltsam Pty Limited v McGuiness,[2] Murray v Shillingsworth[3] and EMI (Australia) Ltd v Bes.[4]
[2] [2000] NSWCA 29 (McGuiness).
[3] [2006] NSWCA 367.
[4] (1970) WCR 114.
The applicant submitted the surgery was reasonably necessary, and I would accept
[5] [2014] NSWWCCPD 72 (Diab).
Dr McKechnie’s and Dr Giblin’s evidence in this regard. The applicant relied on the decision in Diab v NRMA Ltd[5] and the cases discussed therein.
The applicant sought an order for the expenses of and incidental to the surgery claimed.

Respondent

The respondent submitted the only explanation as to how the surgery undergone by the applicant caused her symptoms related to ulnar nerve dysfunction, which was a known complication. Dr Biggs did not argue with that, but ulnar nerve dysfunction had been disproven.
The respondent submitted that Dr McKechnie’s conclusion did not fit comfortably with the finding and timing of the MRI, or the conclusions of Dr Biggs.
The respondent submitted Dr Giblin opined a steroid injection would be useful to elucidate whether the applicant’s problems were coming from her cervical spine. Dr Giblin had not explained how the applicant’s right arm pain, which was the reason for the surgery, was due to an injury to the cervical spine. There was no explanation of how an osteophyte could be aggravated by surgery.
The respondent submitted the “possibility” that there had been irritation of the C6 nerve root and C5/6 foramen during surgery was as far as Dr Giblin got. What was missing was his justification and reasoning as to how this irritation occurred during surgery. Dr Giblin was “grasping at straws” to tie in the condition. Logically, it was unrelated.
The respondent submitted Dr McKechnie had not explained how there was a causal connection between the surgery and the applicant’s symptoms. A degree of contemporaneity was not sufficient to find there was a consequential condition stemming from the injury.
The respondent relied on the evidence of both Drs Rowe and Biggs. Dr Biggs’ evidence was quite instructive. He acknowledged there was an accepted known sequalae of surgery, but that was not what had happened here.
The respondent referred to Dr Giblin’s “throwaway line” that not everyone was “wired” the same. It submitted I would prefer the evidence of Dr Biggs, whose evidence was very particular with respect to rationale and reasoning.
As regards whether the surgery was “reasonably necessary”, the respondent submitted Dr Biggs’ opinion was that there would be no real benefit. Diagnostic procedures were suggested but the applicant had chosen not to pursue them. It was significant to have neck surgery, rather than a diagnostic procedure to see whether the surgery would be of benefit.
The respondent conceded the applicant could not be compelled to undergo a medical procedure, but this was relevant to whether the surgery was reasonably necessary. There was a real dispute as to the effectiveness of the treatment.
The respondent finally submitted that the condition of the applicant’s neck was not related to the surgery, and the surgery was not reasonably necessary.

SUMMARY

There is no dispute that the applicant sustained an injury to her lumbar spine on
18 July 2019, and a consequential condition of her right knee on 28 October 2020.
The applicant underwent surgery to her right knee on 5 October 2021, and there is no dispute that the surgery was reasonably necessary as a result of the consequential condition of her knee, which occurred as she was leaving a pain management appointment.
The applicant claims that, as a result of undergoing surgery to her right knee on
5 October 2021, she has sustained a consequential condition of her cervical spine, for which it is reasonably necessary that she undergo right C5/6 foraminotomy, as recommended by
Dr McKechnie.
The respondent disputes both that the applicant has sustained a consequential condition of her cervical spine, and that the proposed surgery is reasonably necessary medical treatment.
Dealing first with the dispute as to the claimed consequential condition, I am satisfied that the applicant sustained a consequential condition of her cervical spine as a result of the surgery performed on her right knee on 5 October 2021.
The applicant reported altered sensation in her right hand to Dr Dao as early as
18 October 2021. Dr Hoang also recorded complaints of numbness in the applicant’s right fourth and fifth fingers on 23 November 2021.
Dr McKechnie initially believed the applicant’s symptoms were due to ulnar nerve dysfunction, which is accepted by both he and Drs Giblin and Biggs as a recognised complication of surgery.
However, when the applicant’s NCS was reported as normal, Dr McKechnie sought another explanation for her symptoms. MRI scan showed C6 nerve root compression, which
Dr McKechnie opined was consistent with the applicant’s complaints of neck and radicular right arm pain. As the symptoms occurred after treatment for the 2019 injury, Dr McKechnie opined they were directly related to the injury.
Dr Giblin opined that the possibility was that there had been some irritation of the C6 nerve root and C5/6 foramen during the applicant’s right knee surgery.
Dr Biggs opined that the diagnoses of the applicant’s cervical spine did not relate to the injury but were degenerative in nature.
The respondent submitted that a degree of contemporaneity was not sufficient to find that there was a consequential condition. I agree that it is but one matter to take into account. However, it is in my view noteworthy that the applicant’s complaints were recorded very shortly after the surgery took place, and there is no history of such complaints before the surgery.
In saying this, I am mindful that the applicant’s medical evidence contains reports from
Dr Tram Anh Bui, rehabilitation specialist, which refer to Ms Qiu complaining of symptoms in her neck (and right shoulder) in 2007, 2008 and 2009.
Dr Bui treated the applicant for injuries sustained in a motor vehicle accident, which she stated in her evidence occurred on 9 July 2007.
Neither counsel referred me to Dr Bui’s evidence, which I agree is not relevant to the current issues. However, I mention it for the sake of completeness.
The respondent was critical of the evidence of both Drs McKechnie and Giblin, and I have referred to this criticism above. I agree that each could have provided more extensive reasons for the conclusions they reached.
However, as Spigelman CJ said in McGuiness [at 83]:
“The law in Australia is, in my opinion, as stated by Glass JA in this Court in Fernandez v Tubemakers of Australia Ltd:
‘The issue of causation involves a question of fact upon which opinion evidence, provided it is expert, is receivable. But a finding of causal connection may be open without any medical evidence at all to support it: Nicolia v Commissioner for Railways (NSW), or when the expert evidence does not rise above the opinion that a causal connection is possible: EMI (Australia) Ltd v Bes…The evidence will be sufficient if, but only if, the materials offered justify an inference of probable connection. This is the only principle of law. Whether its requirements are met depends upon the evaluation of the evidence.’” (Citations omitted).
In my view the evidence in this matter is sufficient to justify an inference of a probable connection between the consequential condition of the applicant’s cervical spine and the surgery to her right knee that she underwent on 5 October 2021.
The respondent was critical of Dr Giblin’s “throwaway line” that not everybody was “wired up” in the same way, but Dr Giblin went on to say that occasionally a patient’s C6 nerve root may carry fibres from other nerves. Dr Giblin was directly responding to what he described as
Dr Biggs’ concerns, which he said he understood.
I prefer the evidence of Drs McKechnie and Giblin, supported as it is by the contemporaneous evidence of Drs Dao and Hoang, to that of Dr Biggs.
Dr McKechnie queried whether Dr Biggs was aware that the applicant’s NCS was normal, but Dr Biggs had in fact predicted that would be the case. Dr Biggs opined that the applicant’s diagnosis of right C5/6 disc protrusion and right C6 nerve root compression was degenerative in nature. However, as I have noted, the applicant’s complaints began almost immediately after the surgery, and there is no evidence of similar complaints between 2009 and 2021.
In Kooragang Cement Pty Ltd v Bates,[6] Kirby P, as his Honour then was, said, at [461G]
“[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate.”
[6] (1994) 35 NSWLR 452.
After referring to English authorities, his Honour said, at [462E]:
“Since that time, it has been well recognised 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.”
The respondent properly did not submit that the surgery to the applicant’s right knee represented a novus actus interveniens. I am satisfied that the “causal chain” in this matter was unbroken.
As regards the reasonable necessity of the proposed surgery, I accept the evidence of
Dr McKechnie that, the applicant’s pain having continued despite all other conservative treatment options, it is reasonable to perform the surgery.
Both Drs McKechnie and Giblin suggested that the applicant undergo right sided C5/6 foraminal steroid injection, but the applicant had undergone several injections into her right knee, which Dr McKechnie recorded were painful and unsuccessful. Dr McKechnie clearly did not regard the injection as an essential precursor to the surgery.
In Diab, Deputy President Roche discussed the case law relating to the reasonable necessity of medical treatment.
Roche DP cited with approval the decision of Burke CCJ in Rose v Health Commission (NSW):[7]
“[88] In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose…namely
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
[89] With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
[7] (1986) 2 NSWCCR (Rose).

As regards the appropriateness of the treatment, both the applicant’s long-term treating specialist and Dr Giblin opined that the applicant required a foraminotomy, although Dr Giblin noted that an injection would help elucidate the source of the problem. I have already said that I prefer the evidence of Drs McKechnie and Giblin.
As regards the availability and potential effectiveness of alternative treatment, Dr McKechnie opined that the applicant had failed conservative management, with her pain continuing. The injection was proposed as a diagnostic measure, rather than as alternative treatment.
The cost of the treatment is relatively modest, although obviously not to the applicant, and the respondent did not submit otherwise.
Dr McKechnie opined that in general there was an 80% to 90% chance that the surgery would improve the applicant’s radicular arm pain, although numbness and neck pain may remain. Dr Giblin appears to agree that the applicant may still have neck pain after the surgery, as he opined that she may end up having a cervical fusion. He nonetheless supported the surgery.
Dr Biggs opined that the applicant did not require the surgery, as she did not have right C6 radicular symptoms. However, Dr McKechnie found that the applicant had radicular pain, which he opined was consistent with the MRI findings.
Both Drs McKechnie and Giblin accept the treatment as appropriate and likely to be effective. Dr Biggs does not, for the reason noted above. I prefer the evidence of Drs McKechnie and Giblin, and in particular Dr McKechnie, who, as I have noted, found radicular pain, consistent with the MRI.
For the above reasons, I am satisfied that the proposed surgical treatment is reasonably necessary as a result of the injury on 18 July 2019.
My findings are as follows:
(a) the applicant has sustained a consequential condition of her cervical spine, as a result of injury on 18 July 2019, and
(b) the proposed surgery, that is, right C5/6 foraminotomy, is reasonably necessary treatment as a result of injury on 18 July 2019.
The order is as set out in the Certificate of Determination.

[2025] NSWPIC 382

6 August 2025