Reed v National Contracting Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Reed v National Contracting Services Pty Ltd [2025] NSWPIC 48
APPLICANT:	Jason Bryant Reed
RESPONDENT:	National Contracting Services Pty Ltd
MEMBER:	Fiona Seaton
DATE OF DECISION:	17 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for cost of lumbar spine fusion surgery; whether the proposed lumbar spine fusion surgery is reasonably necessary; Held – the lumbar spine fusion surgery proposed by the Medical Assessor is reasonably necessary medical treatment pursuant to section 60; the respondent is to pay the medical, hospital and related expenses of the lumbar spine fusion surgery at the gazetted rates.
DETERMINATIONS MADE:	The Commission determines: 1. No estoppel arises in relation to the claim made by the applicant for L5/S1 anterior lumbar interbody fusion surgery proposed by Dr Khong. 2. The L5/S1 anterior lumbar interbody fusion surgery proposed by Dr Khong is reasonably necessary medical treatment as a result of the accepted injury on 22 June 2017 pursuant to s 60 of the Workers Compensation Act 1987. 3. The respondent is to pay the costs of and incidental to the L5/S1 anterior lumbar interbody fusion surgery proposed by Dr Khong at the applicable gazetted rates. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant Jason Reed was employed by the respondent National Contracting Services Pty Ltd as a truck driver, transporting sand and gravel from a quarry to concrete plants.
On 22 June 2017 the applicant was washing and cleaning a truck in a muddy field when he slipped and fell, injuring his right ankle and suffering consequential injuries to his lumbar spine and left knee.
The applicant’s previous claim brought in the Personal Injury Commission (Commission) for payment of the cost of L5/S1 anterior lumbar interbody fusion surgery was unsuccessful and an award was entered for the respondent by Member Wynyard on 14 January 2022.
Dr Peter Khong, the applicant’s treating specialist, again recommends in February 2024 that the applicant undergo L5/S1 anterior lumbar interbody fusion surgery and a further claim was made by the applicant.
A notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 was issued on 28 March 2024 disputing liability for the proposed lumbar spine surgery.
The applicant lodged an Application to Resolve a Dispute (ARD) with the Commission on
6 November 2024 claiming the amount of $24,701.40 for the proposed surgery including proposed instrumentation and bone graft.
The dispute was listed for conciliation conference and arbitration hearing on 17 January 2025 to determine whether the applicant has an entitlement to payment of the cost of the proposed surgery.

ISSUES FOR DETERMINATION

The parties agree the following issues remain in dispute:
(a) whether an estoppel arises in relation to the L5/S1 anterior lumbar interbody fusion surgery proposed by Dr Khong now claimed by the applicant, and
(b) if not, whether the proposed surgery proposed by Dr Khong is reasonably necessary medical and related treatment as a result of the injury on
22 June 2017 pursuant to s 60 of the Workers Compensation Act 1987.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing in the Commission on 17 January 2025. Mr William Carney of counsel appeared for the applicant instructed by Mr Ittai Liu, legal practitioner. Mr Ross Hanrahan of counsel appeared for the respondent instructed by Ms Phoebe Singer, legal practitioner. Ms Behne-Smith was also present.
During conciliation the applicant submitted that the issue of estoppel with respect to reasonably necessary medical and treatment expenses under s 60 of the 1987 Act is different to other kinds of decisions, so that such a decision is only good for the day it is made. It is only where there is no change in circumstances that an estoppel may arise.
The respondent maintained its view that an estoppel arises in this case.
I am satisfied 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 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)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    Applicant’s Application to Lodge Additional Documents dated 29 November 2024 and attached document.

Oral evidence

No application was made to call oral evidence or to cross examine the applicant.

Applicant’s evidence

Member Wynyard’s Certificate of Determination and Statement of Reasons dated
14 January 2022 are attached to the ARD. Member Wynyard determined the proposed L5/S1 anterior lumbar fusion surgery and related expenses were not reasonably necessary and an award was entered for the respondent.
The applicant’s solicitors made the claim for the surgery again on 8 February 2024 resulting in the s 78 dispute notice of 28 February 2024, with the dispute confirmed on internal review on 23 July 2024.
In his statement of 26 July 2024, the applicant states he was employed by the respondent, at that time known as Quarry Transport Solutions, as a truck driver on about 1 September 2016.
His job involved transporting sand and gravel from the quarry to concrete plants as well as extensive truck maintenance and washing.
On 22 June 2017 he was instructed by the respondent to wash the truck parked on the gravel and clay surface in the yard. This was not a proper wash bay.
The applicant slipped and fell while washing and cleaning the truck, landing flat on his back and buttocks. He injured his right ankle, hearing it break. He consulted Dr John Holt, general practitioner, and wore a moon boot for about twelve weeks. During this time he also relied on crutches which placed a lot of strain on his lumbar spine.
Dr Holt referred him to Dr Tim O’Carrigan, foot and ankle surgeon, when a ligament tear was revealed on MRI. Dr O’Carrigan performed right ankle ligament reconstruction surgery on 4 September 2017.
The applicant continued to walk with a limp and altered gait. The pressure placed on his back started to cause him significant back pain. Dr Holt referred him for an MRI scan in July 2019 and was of the view the employment with the respondent is a substantial contributing factor to the back injury. When Dr Holt then left the practice the applicant consulted Dr Hossain.
The applicant was referred to Dr David Manohar, pain specialist, who carried out a block injection. When he attempted to get up from the injection the applicant fell and re-fractured his right ankle.
After further surgery on his right ankle the applicant was on crutches again for six or eight weeks which caused further back problems.
In February 2020 the applicant began consulting Dr Eric Lim, general practitioner. Dr Lim referred him to Dr Peter Khong, spine surgeon, who recommended fusion surgery to his lower back.
The back surgery was disputed. Dr Bodel did not agree to the proposed back fusion surgery. The applicant’s back surgery was not approved in the Certificate of Determination issued on 14 January 2022.
Since that time the applicant’s back injury continued to deteriorate with excruciating pain travelling down both legs. Dr Khong’s opinion is the lower back has progressively worsened and on 6 February 2024 he proposed the same surgery.
Dr Bodel examined the applicant again on 3 July 2024, found clinical signs of radiculopathy and accepts the proposed surgery is reasonably necessary.

Dr Peter Khong, treating neurosurgeon and spine surgeon

On 16 June 2021 Dr Khong comments that the surgery is reasonable because the applicant had failed non-operative management and his pain had persisted at that time for over two years. His pain was worsening and unlikely to improve without surgery.
On 3 June 2024 Dr Khong reports the applicant requires the L5/S1 anterior lumbar interbody fusion directly arising from his work injury.
He has had pain for over five years, he has exhausted all non-operative management options including analgesia and physiotherapy, a steroid injection would not give him long term pain relief and he will not improve or regain significant function without surgery in
Dr Khong’s view. The surgery is reasonable and necessary.
Dr Khong provides an estimate for the proposed surgery on 6 February 2024 in the amount of $9,797.50 for the surgeon’s fees, an assistant’s fee of $1,959.50, a vascular surgeon’s fee of $3,595 with an assistant’s fee of $719, and physiotherapy and pharmaceuticals estimated in the amount of $500.
Device Technologies provides a quotation dated 7 February 2024 for devices required for the surgery totalling $14,903.90.

Dr James Bodel, independent orthopaedic surgeon

In his first report of 17 February 2021 Dr Bodel was of the opinion that on clinical testing there was no objective signs of radiculopathy in the applicant’s leg that he could identify.
At that time Dr Bodel was reluctant to consider an anterior lumbar interbody fusion for the applicant’s mechanical backache.
Dr Bodel commented that the proposed anterior lumbar interbody fusion did not appear “to be justified just at the moment, although it may be required at a later stage.”[1]
[1] ARD page 64.
Dr Bodel in his report of 5 July 2024 describes the applicant’s disc pathology at the lumbosacral junction involving the L5/S1 level with some right sided radiculopathy.
This is caused primarily by the original injury to the right foot and ankle, re-fractured after treatment, that required two surgeries and is still painful. The applicant still has a limp which has caused all of the ongoing problems with the back injury and the giving way causing the fracture of the tibial plateau.
Dr Bodel notes the applicant has been offered the same surgery as previously. The applicant “has clinical signs of radiculopathy today which he did not have when I saw him last”[2] and the doctor would accept that the surgery as offered is reasonably necessary in this circumstance.
[2] ARD page 54.

Other medical evidence

Dr John Holt, general practitioner, reports on 26 April 2024 that the applicant’s back pain was inevitable given the prolonged severity of his limp and disruption of his gait.
Dr Eric Lim, general practitioner, reports on 18 March 2024 that the applicant’s ongoing ankle condition with fractures and surgery caused an altered gait, aggravating his lumbar spine.
Dr Lim’s report of 26 November 2024 confirms lumbar L5/S1 degenerative disc disease with annular tear (overcompensation). On examination the applicant’s lower back condition has worsened, he presents with radicular symptomatology in bilateral legs and he requires surgery.
The proposed surgery in Dr Lim’s view is reasonably necessary. It is appropriate, seeking to alleviate the consequence of the applicant’s lower back condition that cannot be fixed with conservative treatment, all other alternative treatment has failed, the cost is at AMA rates, it is effective and it is acceptable, having been recommended by a neurosurgeon.
The clinical records of Workers Doctors, Lurnea Medical Centre, First Care Medical Centre and Dr David Manohar are also attached to the ARD.

Respondent’s evidence

The respondent relies on the applicant’s ARD and attached documents, its’ reply and attached documents and the late documents in his prior Commission proceedings W4521/21.
Dr Courtenay, orthopaedic surgeon, reported to the respondent on 20 January 2021. The doctor flags a huge concern on the recommendation for spine surgery as the applicant had problems with medication, he has major depressive disorder, and the doctor did not believe the surgery is going to offer any great changes. It is not possible to suggest that he would be significantly improved with spinal surgery in his view.
Dr Courtenay comments on 2 November 2021 that the applicant’s reported the pain was getting worse and he had cramping in his legs and spasms as well as pain across the buttocks into the back of both thighs. Dr Courtenay noted gross exaggeration of the applicant’s actions during examination. There was no new imaging of the applicant’s back since the doctor’s last review.
The diagnosis was made of lumbar strain of a previously mildly arthritic back. There was no clinical evidence of a disc prolapse, no changes confirmed on MRI, there were some signs of mild osteoarthritic changes but for a 49 year old who has worked in heavy work that was essentially normal X-rays in the doctor’s opinion. There were at most mild changes in his back.
Dr Courtenay also noted the back injury did not seem to be mentioned by anyone other than the applicant in retrospect until about two years after the injury.
The doctor’s major concern with the proposed surgery was that there would be further pressure put on adjacent discs, there would be accelerated development of osteoarthritis and the applicant would basically not get any benefit from that surgery. It would make him worse and possibly permanently unfit for any future employment.
Dr Courtenay also believed there was significant psychological and functional overlays and that the applicant truly believed surgery was going to cure him whereas the applicant was highly likely to be worse off. The applicant needed more extensive psychological support rather than physical support.
An assessment was made of 5% impairment of the lumbar spine in addition to the right ankle to total 15% whole person impairment.
In his third report of 2 November 2021 Dr Courtenay is asked to comment on whether the proposed surgery is reasonably necessary and the extent to which employment had materially contributed to the need for the surgery.
Dr Courtenay does not accept the limping on his right leg in a man of his age would have caused any low back problems. All of his MRI and CT are essentially normal for a man of his age. Evidence of an annular tear does not mean there is a significant disc injury, it is a degenerative process due to a slow process and there is no evidence of any nerve root compression or deterioration. The surgery would cause even further problems and make the applicant worse.
Asked to comment on the reports of Dr Khong and Dr Singh, Dr Courtenay’s opinion is the applicant’s symptomatology is an exaggeration of what is shown on the MRI, it is unrealistic to expect the surgery to give an improvement and there is significant psychological overlay.
The Certificate of Determination of Member Wynyard dated 14 January 2022 is attached to the reply.
The applicant discontinued proceedings W24255/24 on 11 October 2024 and the Certificate of Determination - Consent Orders is also with the reply.
A notice was sent to the applicant from the insurer on 13 December 2023 confirming he was approaching the end of his entitlement to medical and related expenses treatment expenses on 29 June 2024.
The respondent relies on medical and treating evidence following 14 January 2022 including documents received during the course of proceedings W24255/24.
These include Dr Hossain’s statement of 31 October 2019 to TAL that relates to a claim for total and permanent disability. The undated TAL Illness or Injury Claim Form is with the reply.
Dr Hossain’s referral to Dr Chandra Dave dated 19 December 2019 is for treatment of a fracture of post malleolus and avulsion fracture distal tibia.
Dr Sushama Deshpande, pain specialist, reports on 5 September 2023 the applicant had sustained another fall over the weekend and hurt his knee, his medications are unchanged from Gabapentin and Mirtazapine, and a management plan is of right lumbar sympathetic block. Dr Deshpande reports on 18 January 2024 the applicant is happy to trial the lumbar sympathetic block to address the complex regional pain syndrome.
Dr Deshpande’s report dated 4 April 2024 notes the lumbar sympathetic block has made a brilliant difference to the sensory allodynia to the right foot. The applicant was wearing closed shoes and his gait was also less antalgic.
Dr Deshpande reports on 27 June 2024 that there was a great response to three more right lumbar sympathetic blocks. The applicant’s antalgic gait was again noted.
Dr Siddiqui’s referral for a right knee MRI is dated 26 September 2023.
Dr Lieu, orthopaedic surgeon, reports on 2 February 2024 regarding the applicant’s right knee problem. Dr Lieu notes the applicant sustained lower back pain and is on the waiting list for what sounds like a lumbar spine fusion in the near future. He developed pain and clicking in his knee due to his altered gait.
Ms Falero’s Allied Health Recovery Request dated 18 April 2024 requests treatment for a psychological condition.
A regional bone scan of the lumbar spine on 1 June 2020 is requested as a result of pain across the low back for twelve months. It shows no abnormal uptake in the lumbar spine. The X-ray of the lumbar spine on 11 June 2020 notes mild anterior wedging of the T12 and L1 vertebral bodies.
The MRI of the lumbar spine of 21 October 2020 notes a posterior annular tear at the L5/S1 level in association with mild broad based posterocentral disc bulge, not causing significant central canal narrowing. Mild exit canal narrowing is present without exiting nerve root distortion or compression.
The MRI lumbar spine of 1 December 2021 finds L5/S1 degenerative disc disease. It is similar when compared to the prior study. There is mild central disc protrusion without evidence of neural impingement or significant canal stenosis.
In Dr Khong’s report of 20 March 2020 he recommends non-operative management in the first instance. The doctor says core strengthening, swimming, yoga and pilates would be helpful, and the applicant should continue with physiotherapy.
On 22 May 2020 Dr Khong’s opinion is that the applicant may need a fusion at L5/S1 as well as ankle surgery. On 3 July 2020 Dr Khong says at some stage if the applicant’s pain does not improve he may need fusion at L5/S1. On 11 September 2020 Dr Khong says he would encourage physiotherapy for the applicant.
On 13 November 2020 Dr Khong recommends an L5/S1 anterior lumbar interbody fusion and he submits a request for surgery. Dr Khong’s opinion is that the surgery is reasonable for treatment of the applicant’s back pain.
On 20 April 2021 Dr Khong notes the previous steroid injection caused the applicant to fall and fracture his ankle and he is not keen for another injection. On 27 January 2022 Dr Khong notes the new MRI again demonstrates degenerative pathology at L5/S1.
On 27 January 2022 Dr Khong notes the applicant continues to complain of low back pain with bilateral leg symptoms and his new MRI again demonstrates degenerative pathology at L5/S1.
On 21 February 2023 Dr Khong reports the applicant complains of persistent midline lower back pain with pain radiating down both legs with associated numbness in the posterior thighs when the doctor last reviewed him on 17 November 2022.
The applicant has returned with the same low back pain radiating to both buttocks and posterior thighs with alternating numbness in the same distribution. Dr Khong gave the applicant a form for a new MRI as his last one was over a year old.
The MRI lumbar spine of 15 June 2023 finds the L5/S1 disc is desiccated and narrowed, there is a mild posterocentral disc protrusion associated with an annular tear but this is not compressing the thecal sac.

Applicant’s submissions

The applicant made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.
Regarding Member Wynyard’s determination of 14 January 2022, the applicant notes
Dr Manohar’s treatment included blocks in 2018 that the applicant says did not work and unfortunately caused him to fall and have further problems with his ankle.

The Member considered at that time there was a problem with failing to engage with the applicant’s psychological condition. The Member noted the physiotherapist stated the applicant suffered from radiculopathy whereas Dr Khong and Dr Courtenay had not found radiculopathy, so that Dr Elvish’s report was not persuasive.
The Member was also not persuaded in relation to the actual or potential effectiveness of the proposed surgery, noting the applicant’s complaints were insufficient with no significant pathology, and he was not persuaded in relation to its cost.
In his statement of 26 July 2024 the applicant says his back injury continues to deteriorate and has become worse, with excruciating pain travelling down both legs.
He has consulted his general practitioner, a psychologist and a psychiatrist as well as
Dr Khong.
He rarely leaves the house due to his pain and struggles with shopping and other activities.
The medical records of Workers Doctors include a note on 30 November 2022 of right leg cramping, pain overnight, and muscle spasm.
On 18 May 2023 cramping and spasms in the right leg are noted, the lumbar spine surgery is not accepted and the applicant is on the public waiting list. The applicant was contacted by Dr Khong and reports surgery is likely imminent.
The applicant’s submission is that he is certainly intending to have the surgery.
On 15 June 2023 ongoing spasms in the right leg are noted without a clear trigger, and the applicant reports Dr Khong attributes this to lumbar pathology.
There is numbness in the right leg when sitting and paraesthesiae in the right leg when standing, relieved by resting. The applicant submits these are all signs of radiculopathy.
The applicant’s submission is that from 30 November 2022 onwards there are slowly increasing problems and symptoms with the applicant’s right leg recorded in the clinical notes, culminating in June 2023.
That is confirmed by Dr Bodel on 5 July 2024 who describes the signs and symptoms as disc pathology at the lumbosacral joint involving the L5/S1 level with some right sided radiculopathy, which is consistent the applicant submits with what the applicant has reported to his general practitioner in the year before this report.
This does not appear to have been present in the past.
On 17 February 2021 Dr Bodel found no objective signs of radiculopathy in the leg that he could identify, and he was reluctant to consider an anterior lumbar interbody fusion for the applicant’s mechanical backache.
Dr Bodel has changed his mind with the advent of not only the pathology but also the radiculopathy that is resulting from it, particularly in the right leg.
There are clear signs that there has been a deterioration and a change in circumstances the applicant submits.
Dr Khong, on 3 June 2024, says the applicant complains of persistent lower back pain after a workplace injury, his MRI demonstrates degenerative disc disease at L5/S1 which he has had for over five years, and he has exhausted all non-operative management options including analgesia and physiotherapy.
Dr Khong says a steroid injection will not give the applicant long term pain relief.
Dr Deshpande was very confident injections had provided some relief, however they provided relief to the pain along the top of the right foot but not to the muscle spasms and paraesthesiae, the radiculopathy symptoms.
Dr Khong has confirmed that there is only so much conservative treatment can do for the applicant and unfortunately the only way forward now is lumbar spine surgery.
There is a demonstrated change in circumstances with a deterioration in the applicant’s condition. The increase in symptoms means there is a change from the time of Member Wynyard’s decision, which are clearly important changes in Dr Bodel’s opinion. There is no recent report from Dr Courtenay.
The applicant asks that the surgery be approved on the basis of the evidence now before the Commission.

Respondent’s submissions

The respondent made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.
Dr Lim’s recent report of 26 November 2024 discloses nothing new in the respondent’s submission.
Complaints of radiculopathy have been made to Dr Khong for at least the last five years.
This was considered by Member Wynyard and for there to be something new there needs to be verified complaints of radiculopathy after January 2022. The respondent says that has not occurred and that is why no updated report has been obtained by the respondent from
Dr Courtenay.
Dr Courtenay’s view remains the same the respondent submits, and there have been no changes in the circumstances to justify any reconsideration of the matter.
Dr Bodel’s reference to radiculopathy is very vague and the applicant’s counsel has been left to fill in the gaps by reference to the clinical notes of the general practitioner.
While the clinical notes may be relevant to a medical consideration of the existence or extent of radiculopathy that may or may not be present since January 2022, Dr Bodel’s simple statement that there is radiculopathy is not of assistance and would be very fragile support for a determination on that basis alone.
Dr Lim does not introduce any additional information as to the applicant’s lumbar or other symptomatology, or any complaints, restrictions or other consequential injuries that were not before the Commission at the time Member Wynyard made his decision.
The lumbar scans which provide objective evidence were taken before January 2022.
There is no evidence since that date to indicate any alteration in the pathology at all. There is no evidence of nerve root compression or narrowing of disc spaces that were not discussed before the decision in January 2022.
The applicant’s statement evidence is entirely subjective. There is no reference made to any spasm in the right leg or any other symptoms that may reflect the signs of radiculopathy and these are certainly not verified by any of the medical experts, either by treating doctors or independent medical examiners apart from Dr Bodel.
There is no recent examination of the applicant by Dr Khong, and it appears the latest examination he carried out was on 21 February 2023. It is significant in the respondent’s submission that the applicant did not see Dr Khong after his fall in September 2023. If something significant had happened to the applicant’s back he did not consult Dr Khong who was treating his back.
The blocks given by Dr Deshpande were sympathetic blocks applied with respect to the ankle rather than through the lumbar spine. It appears no complaint was made to
Dr Deshpande sufficient to warrant injections of the lumbar spine in July 2023 as a result of worsening of the lumbar condition.
There is no evidence with respect to the applicant’s pain management although he has been taking pain medication for many years. He has not commented on the effectiveness of the drugs and whether the pain has been reduced. He perceives pain has worsened over time but pain is a multifactorial condition. There is no evidence for example from a pain clinic apart from Dr Deshpande. The applicant simply complains of pain.
Causation of the pain is the real issue.
There is no evidence from a psychologist to explain the nature and extent of his symptoms, and whether it would be safe to take on an invasive surgical procedure which may indeed make his condition worse, as it has been known to do in 50% of cases.
There may be multiple causes of pain, as discussed for example in Murphy v Allity[3]. Even where there is not a 100% guarantee of success the applicant should be given the opportunity to have the possibility of an improved result through surgery.
[3] Murphy v Allity Management Services [2015] NSWCCPD 49.
In this case the respondent submits the surgery cannot be approved.
It is appropriate that the applicant is on the public waiting list for the surgery. The respondent does not want to be responsible for a worsening of his condition when there are other options open to him.
Psychological treatment is available on Medicare. The applicant’s psychologist has recommended exercises in mindfulness which would be helpful. There is reference in the clinical records on 18 May 2023 to psychology sessions being helpful. These are the kinds of approaches the respondent would recommend as far as any radiculopathy is concerned.
Dr Bodel in his first report was fairly adamant that there was no radiculopathy and although he has found some in his second report the respondent’s submission is that it is not at the serious end of the spectrum.
It should be accepted that Member Wynyard has already considered the existence of radiculopathy in his evaluation of the applicant.
That evaluation includes a consideration of the factors regarded as helpful in Rosev Health Commission (NSW).[4]
[4] [1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose).
The applicant has only referred to the availability of alternative treatment. The respondent submits that the other factors remain in place as in January 2022, which prevented Member Wynyard from making an order that the surgery was necessary at that time and nothing has changed.
The only change is the suggestion that there has been a significant alteration of the applicant’s pain because of radiculopathy, which the applicant does not even mention in his statement.
Dr Khong gives no clinical insights into the applicant’s condition since 2023, or insights as to why the procedure is reasonably necessary in terms of the criteria that must be applied under this Act.
The applicant’s lumbar spine MRIs do not disclose any change. The respondent questions the existence of radiculopathy and the objective cause of it. There is no sign of interference with the nerve roots such as to cause radiculopathy.
The MRI of 26 February 2020 shows an annular tear but no significant narrowing of the central canal, and without any exiting nerve root compression such as to cause radiculopathy.
It is not appropriate in these circumstances to conduct the surgery proposed as it is not appropriate treatment in the respondent’s submission.
The bone scan on 12 June 2020 shows no abnormal uptake. The 1 December 2021 MRI although showing disc desiccation concludes there is no significant narrowing and no evidence of neural impingement.
There is an MRI on 15 June 2023, after Member Wynyard’s decision, that shows desiccation of discs and a degree of narrowing, mild protrusion associated with an annular tear but again not compressing the thecal sac. That is not different to what has been seen before in the respondent’s submission.
A comparison of the radiology in the respondent’s submission shows no significant pathological change to justify a change from Member Wynyard’s decision.
Dr Lim’s references to radiculopathy in his clinical records should be rejected the respondent submits. The applicant self-reports to his general practitioner and the records come up automatically in their system. The respondent’s submission is that there is very little reliability based on complaints of radiculopathy.
There is a reference to radiculopathy symptoms of a burning sensation at right toe on
14 April 2020 by a physiotherapist. On 9 June 2020 the physiotherapist notes radiculopathy: burning B/L feet. On 21 June 2021 the general practitioner notes lumbar spine radiculopathy, noted again on 5 July 2021 and 4 August 2021.
The respondent’s submission is these references are just a mechanical repetition that comes up in the doctor’s reporting system, and the complaints are just repeated and are not necessarily reliable.
Dr Lal notes complex regional pain syndrome on 12 July 2023 and the respondent submits it would be very unhealthy to recommend surgery in the presence of that diagnosis. She also notes there is no new radiculopathy.
On 23 August 2023 Dr Lal says again there is no new radiculopathy and the leg cramping and spasming has been settled recently.
Whether the proposed surgery is appropriate treatment is in issue as there will be pressure as well after surgical intervention for the applicant to experience some improvement in his condition, even if it is only a placebo effect.
Dr Bodel in his first report found no clinical signs of radiculopathy and then later says there are clinical signs of radiculopathy and he would accept the surgery as offered is reasonably necessary.
The respondent’s submission is that in view of the seriousness of the proposed surgery the Commission needs to be satisfied of the basis of Dr Bodel’s change of view, its rationale and scientific explanation.
If it is simply that Dr Bodel has found clinical signs of radiculopathy, as others did before January 2022, the surgery was not found to be appropriate at that time.
The respondent’s submission is the only reference to radiculopathy is in Dr Bodel’s report and he is simply quoting someone else’s description and taking that on trust.
Other modalities offered such as mindfulness and a psychological approach in response to the pain may be equally or more effective as any invasive surgical procedure.
Dr Khong is a professional who specialises in back surgery and there must be adequate justification for the compensation system to support the surgery.
The respondent has resisted the desire of the applicant to have this surgical procedure by supporting it financially. If the applicant is determined to have it, and he is on the public waiting list, that is not the respondent’s concern, however it does not wish to accelerate this by supporting it financially.

Applicant’s submissions in reply

Dr Lim in his most recent report talks about symptoms of radiculopathy and that the applicant’s lower back condition has worsened, a different finding to the those he had earlier made.
On 13 September 2023 the psychologist notes sharp pain through the leg.
The criticism of the applicant that he did not describe radiculopathy and call it that himself is not a submission that can be made. It is not up to the applicant to diagnose himself. It is up to him to describe his symptoms and for the doctors to then make a diagnosis.
It is quite clear in the applicant’s statement, for instance where he talks about the pain going down into both legs, that this is clearly something different to what he has described before January 2022.
The actual meaning of the MRIs and whether it is possible for an MRI to show an increase in symptoms or show a change is not for a lawyer to determine, to in effect make a diagnosis from looking at the MRIs. An MRI is requested to confirm for a doctor if necessary whether there is a problem at a particular level, but it should not be relied on for a diagnosis.
The applicant submits that while one may need to look at Member Wynyard’s reasons he was asked to decide one thing, and that is whether the proposed surgery was reasonably necessary. There is no need to consider that determination line by line as the respondent submits.
It is necessary to show that there has been some change in the circumstances or in other factors, putting the test at its highest. The applicant says the test of whether the proposed surgery is reasonably necessary is met on the evidence before the Commission.

FINDINGS AND REASONS

Does an estoppel arise in relation to the L5/S1 anterior lumbar interbody fusion surgery

Neither party made submissions during the hearing as to whether an estoppel arises as a result of the Certificate of Determination issued on 14 January 2022.
The question to be determined in these proceedings is essentially the same as the question determined by Member Wynyard on 14 January 2022.
Estoppel does not apply however to circumstances which are capable of change.[5]
[5] Roche v Australian Prestressing Services Pty Ltd [2013] NSWWCCPD 7 at [32].
Whether particular medical treatment is reasonably necessary is a question that routinely arises in the Commission and which may be differentiated from disputes in respect of which an estoppel may arise.
Whether proposed surgery is reasonably necessary is a matter that may change with the passage of time. A new question has arisen in this case relevant to the time when these proceedings have been instituted, and the new question is to be determined with regard to the current circumstances.
I find no estoppel arises with respect to whether the proposed lumbar spine surgery is reasonably necessary.

Is the proposed L5/S1 anterior lumbar interbody fusion surgery reasonably necessary

In Murphy v Allity Roche DP stated an injured worker has to establish, applying the commonsense test of causation in Kooragang[6], that the treatment is reasonably necessary as a result of the injury, that is, that the injury materially contributed to the need for surgery.[7]
[6] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796.
[7] Murphy v Allity Management Services [2015] NSWCCPD 49 at [58].
That the lumbar spine condition results from the injury on 22 June 2017 is not disputed.
The issue in dispute is whether the proposed surgery is reasonably necessary.
Section 60 of the 1987 Act provides that if as a result of an injury it is reasonably necessary that a worker receives any medical or related treatment or any hospital treatment the employer is liable to pay the cost of that treatment or service.
While the essential question remains whether the treatment is reasonably necessary, the relevant matters to consider according to the criteria of reasonableness of the proposed surgery, discussed in Rose and set out in Diab v NRMA Ltd[8] are;
(a)    the appropriateness of the particular treatment;
(b)    the availability of alternative treatment, and its potential effectiveness’ the cost of the treatment;
(c)    the actual or potential effectiveness of the treatment, and
(d)    the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
[8] [2014] NSWWCCPD 72.

A Certificate of Determination was issued by the Commission on 14 January 2022 finding the proposed surgery was not reasonably necessary at that time.
I accept the evidence of the applicant that his back injury has continued to deteriorate following that determination. He describes excruciating pain travelling down both legs since that time, and that his worsening back pain has been clearly recorded in his general practitioner’s medical notes. I do not accept the applicant does not mention signs of radiculopathy in his statement.
The applicant’s evidence is consistent with the records of Workers Doctors as well as the opinions of Dr Khong and Dr Bodel.
When this issue was last before the Commission the available medical records of Workers Doctors were to 21 June 2021.
On 30 November 2022 Dr Mo records right leg cramping pain overnight and muscle spasms. On 18 May 2023 Dr Lal records cramping and spasms in the right leg. On 26 May 2023
Dr Siddiqui records ongoing back and leg pain and continuing leg spasms. On 15 June 2023 Dr Lal records ongoing leg spasms in the right leg without a clear trigger, and the applicant reports this is attributed by Dr Khong to lumbar pathology. The applicant also has cramps, numbness and paraesthesiae in the right leg. On 13 September 2023 the applicant’s treating psychologist notes he has sharp pain through his leg.
I accept the applicant’s submission that the symptoms recorded in the medical records of Workers Doctors are signs of radiculopathy.
Following his re-examination of the applicant on 26 November 2024, Dr Lim reported symptoms including lower back pain, numbness into bilateral legs and intermittent sharp pain into bilateral legs. Dr Lim notes the applicant’s lower back condition has worsened, he presents with radicular symptomatology in bilateral legs and he has reduced strength on his right lower limb.
Clinical signs of radiculopathy are found by Dr Bodel on his examination of the applicant on 3 July 2024.
Dr Bodel provides a diagnosis of disc pathology at the lumbosacral junction involving the L5/S1 level with some right sided S1 radiculopathy. The applicant did not have clinical signs of radiculopathy when the doctor saw him last on 17 February 2021.

I accept Dr Bodel’s opinion that the applicant now has clinical signs of radiculopathy, and I do not accept that Dr Bodel is simply quoting someone else’s description and taking that on trust. He has obtained a history from the applicant, considered the treating notes from Workers Doctors and carried out an examination of the applicant.
The submission that Dr Bodel’s finding of clinical signs of radiculopathy is a simple statement that cannot alone provide the basis for a determination may be accepted, however it is clear that signs of radiculopathy have been recorded over many months by his treating doctors prior to Dr Bodel’s examination.
There is no requirement that the applicant’s symptoms of radiculopathy should be at the serious end of the spectrum.
The MRIs of 26 February 2020, 21 October 2020 and 1 December 2021 describe degenerative disc disease at L5/S1 with an annular tear, an associated disc protrusion or bulge not causing significant central canal narrowing or neural compression.
The MRI report of 15 June 2023 found the L5/S1 disc is desiccated and narrowed, and a mild posterocentral disc protrusion associated with an annular tear but this is not compressing the thecal sac.
I accept the applicant’s submission that an MRI should not be relied upon to make a diagnosis. While there may not be apparent significant pathological change on the basis of the MRIs as the respondent submits, clinical signs of radiculopathy are now present.
The respondent submits that Member Wynyard had already considered the existence of radiculopathy in the determination of 14 January 2022. It is clear however the Member accepted there was no radiculopathy based on the opinions of Dr Khong and Dr Courtenay at that time.[9]
[9] ARD page 20.
Dr Courtenay has not examined the applicant since 26 October 2021.
Dr Khong last examined the applicant on 21 February 2023. Dr Khong notes persistent midline lower back pain, which he has had for over five years, which radiates down both thighs with associated numbness.[10]
[10] Reply page 400.
The respondent submits the applicant could have been expected to see Dr Khong after a fall in September 2023 if something had happened to his back.
The medical records show the fall impacted the applicant’s right knee and he was treated by his general practitioners and Dr Deshpande. An MRI of the right knee was carried out. When clicking in the right knee continued his general practitioner notes on 15 November 2023 the applicant should see an orthopaedic surgeon. The applicant’s case was discussed at a multidisciplinary clinical meeting on 8 December 2023 and he was referred to Dr Lieu, orthopaedic surgeon, for a further opinion on the right knee.
A finding that the applicant has symptoms and signs of radiculopathy is not made only on the basis of his subjective evidence. There is now objective evidence that was not before Member Wynyard.
I accept the applicant has experienced an increase in his symptoms after 14 January 2022 and Dr Bodel is now of the opinion there are clinical signs of radiculopathy. Based on the evidence there is a deterioration in the applicant’s condition and a change in his circumstances.
On the balance of probabilities, and noting scientific certainty is not required,[11] I am satisfied and persuaded that the applicant now has symptoms and signs of radiculopathy.[12]
[11] St George Leagues Club Ltd v Wretowska [2013] NSWWCCPD 64.
[12] Nguyen v Cosmopolitan Homes (NSW) Pty Limited [2008] NSWCA 246 at [44].
Whether the proposed lumbar spine surgery is reasonably necessary is assessed by the Commission exercising ‘prudence, sound judgment and good sense’.[13]
[13] Ajay Fibreglass Industries Pty Ltd t/as Duraplas Industries v Yee [2012] NSWWCCPD 41 at [67] quoting Rose.
Dr Khong maintains his opinion that the proposed surgery is reasonably necessary in his report of 3 June 2024.
I find the surgery proposed by Dr Khong is appropriate treatment for the applicant’s lumbar spine condition.
On 3 June 2024 Dr Khong notes the applicant complains of persistent lower back pain, his MRI demonstrates degenerative disc disease at L5/S1 which he has had for over five years and he has exhausted all non-operative management options including analgesia and physiotherapy. A steroid injection would not give him long term relief and he will not improve or regain significant function without surgery. Surgery is reasonable and necessary.
Dr Khong has treated the applicant since March 2020. He is aware of the treatment history, the radiological investigations and the complaints of pain. Dr Khong did not initially see surgery as appropriate however conservative treatment has not been effective. I place weight on his opinion as the applicant’s treating neurosurgeon and spine surgeon.
Dr Lim, general practitioner, supports the proposed surgery. Dr Lim’s opinion is that the proposed surgery seeks to alleviate the consequences of the applicant’s lower back condition that cannot be fixed with conservative management.
Dr Bodel accepts the proposed surgery is reasonably necessary in the circumstances.
Dr Courtenay opines in 2021 that there was a high likelihood the proposed surgery would make the applicant worse off. I place less weight on Dr Courtenay’s opinion as I have not accepted his view that the applicant’s diagnosis is a lumbar strain of a previously mildly arthritic back and there are no symptoms of his lumbar condition requiring treatment
With respect to alternative treatment, in March 2020 Dr Khong recommended non-operative management in the first instance – core strengthening, swimming, yoga, pilates, and continuing with physiotherapy. On 22 May 2020 Dr Khong says he may need a fusion at L5/S1. On 11 September 2020 he encouraged ongoing physiotherapy. On 13 September 2020 Dr Khong recommended an L5/S1 anterior lumbar interbody fusion.
Following a CT scan of the lumbar spine in July 2019, the applicant attempted treating his back with a blockade to the L5/S1 perineural tissue carried out by Dr Manohar. He does not wish to have any further cortisone injections considering the reaction he had when he fell and re-fractured his right ankle.[14]
[14] ARD page 2.
The medical records show the applicant continued with physiotherapy.
The respondent suggests exercises in mindfulness may be helpful, noting Dr Lal’s record on 18 May 2023 that the applicant feels psychology sessions have been helpful, and that psychological treatment is available on Medicare.
It is clear from the medical records of Workers Doctors that the applicant has received regular psychological treatment from 2 March 2020.
The respondent submits there is no evidence in respect of pain management and the applicant simply complains of pain. The applicant has received pain management treatment from Dr Manohar, and later Dr Deshpande in relation to this right ankle. He has taken Celebrex, Gabapentin, Lovan, Quetiapine and Panadeine Forte and he still complains of pain.
There is no evidence from a psychologist regarding whether it would be safe to take on an invasive surgical procedure in the respondent’s submission. There is however no recent evidence before the Commission that it would be unsafe for the applicant to have the proposed surgery.
The cost of the proposed surgery is significant. Dr Khong says the neurological cost if $9,797.50 for the primary surgery and $1,959.50 for the assistance surgeon as per AMA rates as well as the cost for a vascular surgeon of $3,595 and $719 for an assistant. The cost of the implant, screws and bone graft is $14,903, in addition to the hospital, anaesthetic and theatre costs. The respondent made no submissions or relied on any evidence regarding any unreasonableness of the proposed costs.
With respect to potential effectiveness of the proposed surgery, Dr Khong says the fusion aims to immobilise this painful motion segment, and the applicant will not improve or regain significant function without it. Dr Courtenay in 2021 was of the opinion the surgery would not be effective, however as that opinion was based on the applicant having no lumbar symptoms requiring treatment, I prefer the opinion of Dr Khong for the reasons discussed above.
As discussed by Roche DP in Diab, while the effectiveness of treatment is relevant to whether the treatment is reasonably necessary, it is not determinative and each case will depend on its facts. The proposed surgery is the only option proposed to attempt to alleviate the applicant’s lumbar pain.
I accept the proposed surgery has acceptance by medical experts Dr Khong and Dr Bodel as being appropriate and likely to be effective.
The evidence establishes that the injury materially contributed to the need for the proposed surgery. Dr Khong’s opinion is that the need for the proposed surgery directly arises from the work injury. Dr Bodel’s opinion is the work injury has caused all of the ongoing problems in the applicant’s back and the proposed lumbar spine surgery is reasonably necessary.
Dr Courtenay’s opinion is that there is no medical evidence to support that the right ankle injury has caused the problems in the applicant’s low back. I have not accepted that opinion as discussed above and I find the injury has materially contributed to the need for the proposed surgery.
Having considered the whole of the evidence I am satisfied the applicant has discharged his onus of proving on the balance of probabilities that the proposed surgery is reasonably necessary treatment for his accepted lumbar spine condition.
There will be an order that the respondent is to pay the costs of the proposed L5/S1 anterior lumbar interbody fusion surgery at the applicable gazetted rates.

SUMMARY

No estoppel arises in relation to the claim made by the applicant for L5/S1 anterior lumbar interbody fusion surgery proposed by Dr Khong.
The L5/S1 anterior lumbar interbody fusion surgery proposed by Dr Khong is reasonably necessary medical treatment as a result of the accepted injury on 22 June 2017 pursuant to s 60 of the Workers Compensation Act 1987.
The respondent is to pay the costs of and incidental to the L5/S1 anterior lumbar interbody fusion surgery proposed by Dr Khong at the applicable gazetted rates.

[2025] NSWPIC 48

17 February 2025