Roeser v AKM Earth Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Roeser v AKM Earth Pty Ltd [2024] NSWPIC 174
APPLICANT:	George Albert Roeser
RESPONDENT:	AKM Earth Pty Ltd
MEMBER:	Sophie Jones
DATE OF DECISION:	9 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; whether the applicant sustained injury to the cervical spine; whether C5/6 and C6/7 anterior cervical discectomy and fusion surgery proposed by Dr Neil Cochrane in his report dated 18 July 2023 is reasonably necessary medical treatment; Held – on 22 August 2018, the applicant sustained an aggravation, acceleration, exacerbation or deterioration of a pre-existing cervical spine condition and his employment was the main contributing factor to that aggravation, acceleration, exacerbation or deterioration; injury to the cervical spine established pursuant to section 4; C5/6 and C6/7 anterior cervical discectomy and fusion surgery is reasonably necessary medical treatment pursuant to section 60.
DETERMINATIONS MADE:	The Commission determines: 1. Respondent to pay the applicant’s s 60 expenses in the amount of $46,251.55 in respect of the surgery proposed by Dr Neil Cochrane in his report dated 18 July 2023, namely C5/6 and C6/7 anterior cervical discectomy and fusion surgery as a result of injury to the cervical spine on 22 August 2018.

STATEMENT OF REASONS

BACKGROUND

On 22 August 2018, Mr George Roeser (the applicant) was injured while working as a labourer/machine operator for AKM Earth Pty Ltd in the construction of a freeway at Woodburn NSW. The applicant was washing dirt and gravel from stairs at the bottom of an embankment when he slipped on loose gravel and fell a distance he approximates was about 1m.
The applicant was initially treated in Lismore Base Hospital and over the course of 2019 and 2020, underwent surgical procedures to his left shoulder and lumbar spine.
Liability was accepted by the insurer in respect of injuries to the left knee, lower back and left shoulder.
The insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 25 July 2023 stating that the insurer disputed the applicant’s claim for compensation for his alleged cervical spine injury on
22 August 2018 and alternatively that a consequential cervical spine condition resulted from his accepted injury on 22 August 2018.
On 11 August 2023, the applicant made a claim on the insurer for medical treatment expenses in the amount of $46,251.55 for C5/6 and C6/7 anterior cervical discectomy and fusion surgery.
The insurer disputes liability for this expense.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute (Application) in the Personal Injury Commission (Commission) on
16 November 2023.
The applicant seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for compensation in the amount of $46,251.55 for future medical treatment, being C5/6 and C6/7 anterior cervical discectomy and fusion surgery.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury to his cervical spine, as defined in s 4 of the 1987 Act, and
(b) whether the treatment expenses claimed are reasonably necessary as a result of an injury received by the applicant pursuant to s 60 of the 1987 Act.
The parties confirmed that s 59A of the 1987 Act does not apply as the applicant is in receipt of weekly payments of compensation.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 21 March 2024 by the MS Teams platform. The applicant was represented by Mr Misha Hammond of counsel, instructed by Mr Robert Warren. The respondent was represented by Mr Daniel Stiles of counsel, instructed by Mr Scott Murray. The applicant and his support person attended. Mr Bradfield from EML also attended but was excused from the hearing.
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.
The applicant was granted leave under Division 4.2 of the Personal Injury Commission Rules 2021 to amend the Application to include “cervical spine” in the injury description.

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, other than pages 335 - 353 of the Reply which were excluded pursuant to cl 44 of the Workers Compensation Regulation 2016 on the objection of the applicant.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s statement

The applicant’s evidence is set out in a signed statement dated 9 May 2023.
The applicant states that in the fall on 22 August 2018, he landed heavily on his left knee, left hip, back and left shoulder. The applicant states, “I was in a huge amount of pain all over my body and I wasn’t sure at that time what I had actually injured.”
The applicant states he had shoulder replacement surgery in approximately May 2019 and “[f]ollowing this surgery I was stiff suffering severe pain to my ankle, left knee, buttocks, lower back, left shoulder and neck. My neck pain has gradually worsened over time and I continue to have severe headaches and blurriness to my vision”.
The applicant states that in November 2021, his general practitioner (GP) sent him for scans of his neck and he was then referred to Dr Neil Cochrane, who recommended surgery to his neck. The applicant states he continues to have “terrible neck pain” and “I also have pain and pins and needles down both arms with severe burning sensation in my fingers”.

Treating evidence

The report from NSW Ambulance dated 22 August 2018 records, “Pt [patient] states had instant severe pain to left knee, lumbar back and pelvic areas. Did not hit head, recalls entire event, nil neck pain or tenderness”.
The discharge referral notes from Lismore Base Hospital state that the applicant was admitted on 22 August 2018 with “Trauma – multiple injuries multiple trauma” following a fall at work, reporting “back pain and pelvic pain 10/10”.
Examination findings record, among other things, “Neck: full ROM, no midline tenderness”. The triage notes record, among other things, “nil loc [loss of consciousness] or neck pain”.
The applicant was discharged to Brisbane Private Hospital for ongoing care.
A referral letter from Dr Scott Campbell, neurosurgeon, to a pain clinic on
20 September 2018 refers to the fall at work resulting in lower back injury and dislocation of the left shoulder.
A report from treating pain medicine physician Dr James O’Callaghan to the insurer, dated 10 October 2018, states the applicant reported he injured his left knee, spine and left shoulder in the fall on 22 August 2018.
A report from treating hand and upper limb surgeon Dr Steve Andrews to the insurer, dated 21 December 2018, gives a history that the applicant injured his left knee, spine and had ongoing symptoms in the left shoulder and left elbow. Dr Andrews went on to perform the applicant’s left shoulder surgery.
Physiotherapy clinical notes from Core Healthcare Group dated 23 October 2019 contain the following record of neck pain, “Reporting: Left shoulder and neck pain/Headaches, left knee and Lower Back complaint continues”. This record appears to be the first specific report of neck pain in the medical evidence.
Clinical notes from the applicant’s treating neurosurgeon, Dr Neil Cochrane, are in evidence. Following referral from his GP, Dr Rashid Mohmood, the applicant first consulted
Dr Cochrane on 1 November 2019. In a reporting letter dated 1 November 2019 to
Dr Mohmood, Dr Cochrane states the applicant reported that the applicant suffered in the work injury,
“significant injuries to the left side of his body particularly his left knee and left shoulder, and a few months later (9 months ago) underwent shoulder surgery on the left. He has ongoing pain around the left knee. From that time, he had aggravated neck pain and back pain, particularly back pain.”
A report from Dr Cochrane to the insurer dated 15 April 2020, states, in relation to the injury on 22 August 2018 that the applicant,
“recalls significant bruising injuries to the left side of his body, particularly affecting his left knee and left shoulder. He has in fact undergone surgery to his left shoulder in that regard. There is also ongoing pain around the left knee. Mr Roeser reported aggravated neck and back pain from that time and the back pain has worsened.”
A letter from Dr Cochrane to Dr Mohmood dated 8 December 2020 states, “George also mentions stiff neck, which is a slowly progressive problem and, realistically, not directly related to a compensable low back work injury of August 2018.”
A subsequent letter from Dr Cochrane to GP Dr Hannah Swan, dated 11 January 2021 states,
“I have also gone through other imaging with George today and confirm that SPECT/CT bone scan performed on 11^th December by Qscan radiology with regards to his neck pain, shows quite focal right C4/5 facet arthropathic changes. This may require treatment which will likely be needle based denervation. It is unclear whether this is covered under his worker’s compensation claim for his low back injury.”
A report from neurologist and neurophysiologist Dr Ventzi Boney to Dr Cochrane dated
11 March 2022 states the applicant reports “intermittent numbness and tingling in both hands and arms for approximately 3 and a half years … Patient states these symptoms began immediately after falling on an embankment at work on the 21^st of August 2018”. Dr Boney’s clinical impression is stated as “Main current clinical symptoms and neurophysiological evidence of moderately-severe bilateral carpal tunnel syndrome. Neurophysiological evidence of concurrent chronic, low-grade multilevel cervical nerve roots dysfunction.”
In a reporting letter to Dr Mohmood dated 31 March 2022, Dr Cochrane recommended C4/5 and C5/6 surgery. A letter from Dr Cochrane to the insurer dated 20 May 2022 states that cervical surgery is requested “due to intractable radicular symptoms, which has escalated since the time of the subject work injury of 22 August 2018”.
In answer to a questionnaire dated 24 June 2022 from the insurer, Dr Cochrane states,
“At my first assessment of Mr Roeser on 1.11.19 he relayed a work related injury to L shoulder/neck; L knee & low back consequent to fall down embankment. Seemingly a cluster of acute work related injuries. I believe there has been accelerated degeneration/spondylosis now with radicular arm symptoms as well as persisting neck pain, which is as a result of the compensable injury. He has failed conservative treatments.”
Dr Cochrane further stated in the questionnaire that he believed the applicant’s neck symptoms were related to his work place injury dated 22 August 2018.
A letter from Dr Cochrane to Dr Mohmood dated 19 September 2022 comments on the independent medical examination report of Dr Ashish Jonathan dated 7 September 2022.
Dr Cochrane states, in relation to that report,
“There is no argument whatsoever George has pre-existing degeneration, and certainly has significant disc height collapse at C6/7 and anterior osteophytosis, which is the reason for me suggesting arthroplasty in the adjacent level to minimise the acceleration of this. Nonetheless, I believe the acute work-related injury rendered what was previously asymptomatic, degenerative changes to cervical spine to a refractory pain syndrome.”
A letter from Dr Cochrane to Dr Mohmood dated 11 October 2022 reiterates his view,
“There is no disputing there is pre-existing degeneration, but save for the significant work-related injury of 2018, I do not feel the acceleration would have aggravated and accelerated to the point that George would continue to have cord compromise and significant C6 radicular compression. I feel that surgery remains reasonably indicated from the work-related aggravation injury.”
A letter from Dr Cochrane to Dr Mohmood dated 3 July 2023 states that a request for surgery was declined by the insurer “on the basis of presumed pre-existing degenerative change being treated. Nonetheless, neurological symptoms are new from the work injury on 2018 and persistent and I remain of the opinion that cervical surgery is needed”.
In a report to the applicant’s legal representatives dated 18 July 2023, Dr Cochrane recommends C5/6 and C6/7 anterior cervical discectomy and fusion surgery and states,
“I believe there is a causal link between the significant slip and fall down the embankment and the aggravation acceleration of moderate level cervical spondylosis which is radiologically and symptomatically most marked at the C5/6 and C6/7 levels. Save for the work injury, it seems unlikely your client would have required the surgery.”

Certificates of Capacity

Certificates of Capacity (COC) for the period 22 August 2018 to 18 August 2023 are in evidence. The initial COC dated 28 August 2018 records injury to left elbow and shoulder. Subsequent certificates include injury to the left knee, and lower back. Injury to the neck appears to be first recorded in a certificate dated 31 March 2022.

Radiology reports

A number of radiological reports are in evidence including an MRI of the cervical and thoracic spine dated 24 August 2018, a SPECT/CT scan of the upper spine dated
27 September 2022 and an MRI of the whole spine, cervical spine and lumbar spine dated
7 February 2022.

Qualified evidence

Dr Cleaver

The applicant relies on medicolegal reports from Dr Neil Cleaver, orthopaedic surgeon. In his report dated 5 February 2023, Dr Cleaver records a history of the accident on
22 August 2018 that “Multiple areas then became associated with the generation of severe pain namely the left hip, the left shoulder, the left knee, the neck and the lower back”.
Dr Cleaver records,
“George’s neck became sore immediately after his fall. It would appear from reading the Brief that treatments directed towards the neck were given a lower priority and as such his neck was treated with a certain degree of benign neglect. He still suffers with severe pain in the neck.”
Dr Cleaver gave the following work related diagnosis: “Aggravation to cervical spondylosis causing myelopathy”. In relation to whether the applicant had suffered a frank injury as a result of the fall and/or had suffered an aggravation of an underlying disease condition,
Dr Cleaver states:
“It is my opinion that George suffered an injury to his neck as a result of his fall. By way of justification, he informs that he was completely asymptomatic in terms of pain of cervical origin until the fall, and I am unable to find any evidence in the Brief to suggest otherwise.
As a result of having significant degenerative changes in his neck, which were clearly asymptomatic, at some point during the fall, I suspect he suffered a hyperflexion injury causing damage in the spinal cord behind the most degenerative segment that being C5-C6. By way of justification there is a significant increased activity on the nuclear medicine bone scan in the anterior column directly adjacent to this area of myelopathy. Whether or not in the course of the fall, George hyperflexed his wrists or whether there was direct injury to the carpal tunnel area trying to break his fall is unknown, but either way he has symptoms of severe carpal tunnel syndrome following the fall.
His upper limb symptoms are now a combination of radiculopathy, myelopathy, and carpal tunnel syndrome, and he requires to be treated.”
A supplementary report by Dr Cleaver dated 13 November 2023 states, in relation to the recommended C5/6 and C6/7 surgery:
“I have reviewed the entire Brief including Dr Cochrane’s report and my own, and I have come to a conclusion that it is reasonable and necessary for George to undergo C5-6 and C6-7 anterior cervical decompression and fusion.
George Roeser certainly satisfies the criteria to warrant surgical intervention. Cervical myelopathy and cervical radiculopathy that have failed conservative therapies would be considered surgical indications for the proposed treatment.
There is sufficient evidence in the Brief that there is a causal relationship between George’s fall on 22 August 2018 and the requirement for this surgery. Causality is indicated by the chronological relationship between the fall and the onset of symptoms. Absent the fall, there would be no requirement for surgery at this point and, on balance of probability, absent the fall no requirement for surgery at all.
I would also offer my opinion that there is plenty of evidence in the Brief that George suffers from bilateral carpal tunnel syndrome. He has it symptomatically, clinically and on nerve conduction studies.”

Dr Jonathan

The respondent relies on a medicolegal report from Dr Ashish Jonathan, orthopaedic surgeon, dated 7 September 2022. Dr Jonathan took a history from the applicant that the injury occurred on 22 August 2018 and he suffered injuries “to his left hip, left shoulder, left knee, neck and back”. The applicant reported to Dr Jonathan that “he has neck pain since the day, which has progressively worsened”.
Dr Jonathan stated his opinion that the appropriate surgery for the applicant’s condition was a C4/5 and C5/6 anterior cervical discectomy and fusion. Dr Jonathan states, “The need for surgery arises as Mr Roeser has multi-level degenerative disease of the cervical spine. The main contributing factor to this condition is genetic and not his employment.” Dr Jonathan further states:
“In my opinion, I disagree with the statement that Mr Roeser’s neck symptoms are entirely, or to any extent related to the incident on 22 August 2018. Mr Roeser does not report a specific incident. His cervical spine condition is related to degenerate disease of the cervical spine. The main contributing factor is his genetics.”

Oral submissions

The parties made oral submissions at the arbitration hearing.
The applicant submitted that multiple body parts were injured on 22 August 2018 and the gap in the treatment records not referring to neck pain until 2019 can be explained by the significance of the other injuries to the shoulder and back that required surgery.
The applicant submitted that Dr Jonathan did not take a detailed history regarding the mechanism of the injuries. The applicant submitted Dr Jonathan does not provide an opinion as to whether the incident was the main contributing factor to the aggravation of multi-level degenerative disease. The applicant further submitted that it was not clear whether
Dr Jonathan had anything other than the radiological evidence to consider.
The applicant submitted that in contrast, Dr Cleaver considered Dr Jonathan’s report and clinical notes from Dr Cochrane. The applicant submitted that Dr Cochrane expressed the opinion that he believes there is a causal link between the fall and the aggravation of the cervical condition.
The respondent submitted that there is a lack of contemporaneous report of injury to the cervical spine in the ambulance record, the Lismore Hospital notes, the medical certificate dated 28 August 2018, referral letter from Dr Campbell and initial COCs from Dr Cochrane.
The respondent submitted the first real reference to investigations into the cervical spine condition is in December 2020, more than two years after the incident, where Dr Cochrane was not able to justify linking the neck pain and stiffness to the compensable low back injury at that point in time.

The respondent submitted the MRI scan on 7 February 2022 confirmed significant degenerative changes and Dr Boney confirmed the presence of moderately severe bilateral carpal tunnel syndrome. The respondent submitted carpal tunnel syndrome would account for some of the applicant’s symptoms.
The respondent submitted Dr Cochrane has not explained what changed between
December 2020, when he said he could not see how the cervical spine was directly related to the compensable back injury, and March 2022 when he suggested adding this condition and the request for surgery.
The respondent submitted that the history given by the applicant to Dr Cochrane,
Dr Jonathan and Dr Cleaver of neck pain since the subject incident is not consistent with the contemporaneous medical evidence and the medical certificates do not support the condition being rendered symptomatic until the end of 2020.
The respondent further submitted that the applicant’s statement does not report neck symptoms immediately after the fall.
The respondent submitted that Dr Jonathan accepted there was a need for a surgical procedure and submitted that if it was ultimately found that the applicant had established injury to the cervical spine and that surgical intervention was reasonably necessary, the respondent would accept the recommendation of the treating specialist with respect to the specific surgery.
The applicant submitted in reply that Dr Cleaver and Dr Boney both considered the issue of carpal tunnel syndrome and both noted the applicant also has cervical nerve root dysfunction / cervical radiculopathy. The applicant further submitted that a fair reading of the applicant’s statement was that he had symptoms in the neck from the time of the accident and that looking at Dr Cochrane’s reports as a whole, it is clear his opinion is that there is an underlying degenerative process that has been aggravated by the work incident.

FINDINGS AND REASONS

Injury

The applicant alleges that on 22 August 2018 he sustained an aggravation, acceleration, exacerbation or deterioration of a pre-existing cervical spine condition.
Section 4 of the 1987 Act defines injury as follows:
“In this Act-
injury-
(a)    means personal injury arising out of or in the course of employment,
(b)    includes a disease injury, which means-
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)    does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
The applicant bears the onus of proving injury on the balance of probabilities.
Issues of causation must be determined on the facts in each case through a “commonsense evaluation of the causal chain”: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 at [810].
The current matter concerns a disease injury, which requires that employment is the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.
In Taylor v J & D Stephens Pty Ltd [2018] NSWCA 287, the Court of Appeal considered the meaning of a disease injury in the context of a “shearer’s back”. McColl AP stated at [34]:
“It can be seen that there are three components to a ‘disease injury’ – the existence of a ‘disease’, that the disease was contracted (or aggravated etc) in the course of employment, and that the employment was the main contributing factor to the contraction (or aggravation etc) of the disease. If all three are demonstrated, the worker has suffered a ‘disease injury’ within the meaning of s 4(b), and is entitled to benefits as prescribed by Part 3 of the WC Act.”
There is no dispute that the applicant has a cervical spine condition, characterised by
Dr Cochrane as “moderate level cervical spondylosis which is radiologically and symptomatically most marked at the C5/6 and C6/7 levels”.
Therefore, I am satisfied that ‘disease’ is established. The next element is aggravation, acceleration, exacerbation or deterioration.
In relation to aggravation, acceleration, exacerbation or deterioration, Kitto J stated in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 (Semlitch), at 635:
“There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism.”
Windeyer J further stated in Semlitch, at 640:
“The question that each [aggravation; acceleration; exacerbation; deterioration] poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.”
The applicant reported to Dr Cleaver on 5 February 2023 that he had been “completely asymptomatic in terms of pain of cervical origin until the fall” and Dr Cleaver was unable to find any evidence to suggest otherwise. The applicant reported neck symptoms to his treating professionals from October 2019 onwards, which is discussed in more detail in the following paragraphs. The applicant’s cervical spine condition is now at a state that his treating neurosurgeon and the independent medical experts are in agreement that he requires surgery. I am therefore satisfied that there has been aggravation, acceleration, exacerbation or deterioration of the disease.
The third element is that employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.
In AV v AW[2020] NSWWCCPD 9, Snell DP considered the test of main contributing factor in s 4(b) of the 1987 Act at [77]-[78] stating:
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
The respondent disputes that the applicant’s employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of this condition, noting the opinion of Dr Jonathan, the temporal gap between the fall and the first mention of the neck in the medical evidence, their view that the applicant’s statement did not report neck symptoms immediately after the fall and the absence of contemporaneous medical evidence being inconsistent with the history provided by the applicant to Dr Cleaver, Dr Jonathan and
Dr Cochrane.
I have had regard to the respondent’s submissions. A lack of contemporaneous medical reports regarding the neck is notable however I do not consider this is fatal to the applicant’s case. In Davis v Council of the City of Wagga Wagga [2004] NSWCA 34, at [35] per Mason P, Beazley and Tobias JJA agreeing, it was noted that “experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury”.
In the current case, the applicant sustained frank injuries to his left knee, lower back and left shoulder.
In relation to perceived inconsistencies between the applicant’s evidence and clinical notes, Basten JA stated in Mason v Demasi [2009] NSWCA 227 at [2] that “such apparent inconsistencies may, and often should, be approached with caution”.
The applicant’s statement is that following the fall on 22 August 2018, he was in pain all over his body and was not sure what he had injured. The ambulance report, hospital notes, initial medical reports and COCs do not record injury or pain to the neck, although I note the reports of treating doctors Dr O’Callaghan (10 October 2018) and Dr Andrews
(21 December 2018) both make reference to injury to the “spine” without further description of the area of the spine.
The first specific reference to neck symptoms appears in physiotherapy records from October 2019 and thereafter in the records of Dr Cochrane, from 1 November 2019, which was the date of the applicant’s first consultation with Dr Cochrane. I note that these reports to the physiotherapist and Dr Cochrane were before any denervation or surgical treatments were suggested.
There is therefore a gap in the treating notes of 14 months between the fall and a specific record of neck symptoms.
Dr Cochrane states in a report to the insurer dated 15 April 2020 that the applicant reported aggravated neck pain from the fall. The applicant gave a history to Dr Cleaver and
Dr Jonathan of neck pain since the incident which has worsened.
Dr Cleaver opined that the applicant’s neck condition was given a lower priority than his other injuries and was “treated with a certain degree of benign neglect”.
Dr Cochrane’s initial opinion in December 2020 was that the applicant’s neck symptoms were progressive and “not directly related” to the low back work injury of August 2018.
Dr Cochrane also stated, in January 2021, that it was unclear whether proposed denervation treatment would be covered under the applicant’s workers compensation claim.
I do not find a treating doctor’s expression of doubt as to whether a procedure would be covered by workers compensation to be determinative of the issue of injury. Similarly, I do not consider that Dr Cochrane’s initial opinion that the applicant’s neck condition was “not directly related” to the low back work injury of August 2018 applies the relevant test. The applicant has claimed the neck injury as an aggravation of a disease, which requires employment to be the main contributing factor to the aggravation, which is not an issue canvassed by Dr Cochrane in his report of 8 December 2020.
Dr Cochrane’s reports from 20 May 2022 onwards consistently express his opinion that the incident on 22 August 2018 accelerated the claimant’s pre-existing cervical spine degeneration/spondylosis.
Dr Cleaver also gave a diagnosis of “Aggravation to cervical spondylosis causing myelopathy” as a result of the fall on 22 August 2018, noting that the applicant was “completely asymptomatic in terms of pain of cervical origin until the fall, and I am unable to find any evidence in the Brief to suggest otherwise”.
The opposing view of Dr Jonathan was that the applicant’s cervical spine condition is related to degenerative disease and the main contributing factor is his genetics.
Dr Jonathan states in his report of 7 September 2022,
“The need for surgery arises as Mr Roeser has multi-level degenerative disease of the cervical spine. The main contributing factor to this condition is genetic and not his employment. …In my opinion I disagree with the statement that Mr Roeser’s neck symptoms are entirely or to any extent related to the incident on 22 August 2018.
Mr Roeser does not report a specific incident. His cervical spine condition is related to degenerate disease of the cervical spine. The main contributing factor is genetics.”
There is no argument in the medical opinions that the applicant has a pre-existing degenerative cervical spine condition. However, in stating that the main contributing factor to the applicant’s cervical spine condition is genetics, Dr Jonathan has not considered whether the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the condition is genetic or some other cause. Dr Jonathan, after taking a history that the applicant has had neck pain since the day of the fall, has provided no explanation as to why the applicant’s degenerative condition has become symptomatic.
Considering the evidence as a whole, I am persuaded that the applicant’s cervical spine condition was asymptomatic before the fall on 22 August 2018. I am satisfied that the fall on 22 August 2018 accelerated the condition, resulting in symptoms which were first reported in October 2019.
I am satisfied on the balance of probabilities that on 22 August 2018, the applicant sustained an aggravation, acceleration, exacerbation or deterioration of a pre-existing cervical spine condition and his employment was the main contributing factor to that aggravation, acceleration, exacerbation or deterioration.

Reasonably necessary medical treatment

Section 60 of the 1987 Act relevantly provides:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that-
(a)    any medical or related treatment (other than domestic assistance) be given, or
(b)    any hospital treatment be given, or
(c)    any ambulance service be provided, or
(d)    any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
The medical treatment claimed by the applicant is C5/6 and C6/7 anterior cervical discectomy and fusion surgery. This surgery is recommended by Dr Cochrane in his letter to the applicant’s legal representatives dated 18 July 2023. Dr Cochrane stated in a response to the insurer on 24 June 2022 that the applicant had failed conservative treatments.
Dr Cleaver was also of the opinion that C5/6 and C6/7 anterior cervical decompression and fusion surgery was reasonably necessary, noting that the applicant “certainly satisfies the criteria to warrant surgical intervention. Cervical myelopathy and cervical radiculopathy that have failed conservative therapies would be considered surgical indications for the proposed treatment”.
Dr Jonathan’s opinion was that the appropriate surgery for the applicant’s condition was a C4/5 and C5/6 anterior cervical discectomy and fusion.
The independent medical experts are in agreement with the treating doctor that cervical spine surgery is recommended for the applicant. There is a slight difference of opinion as to exactly which surgery is appropriate. The respondent conceded that if injury to the cervical spine was established and that surgical intervention was reasonably necessary, the respondent would accept the recommendation of the treating specialist with respect to the specific surgery, that is, C5/6 and C6/7 anterior cervical discectomy and fusion surgery.
Section 60(1) of the 1987 Act requires, for compensation to be paid for the cost of medical treatment, that the treatment is given as a result of an injury received by a worker and that it is reasonably necessary that it be given. Therefore, there is both a causation test and a reasonably necessary test to be satisfied.
In relation to causation, Roche DP held in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 at [58] that the applicant:
“only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary “as a result of” the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]-[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
Dr Jonathan states in his report of 7 September 2022 that the claimant’s degenerative disease of the cervical and lumbar spine is a progressive condition which “would have required treatment/surgery in the absence of any external contribution”.
I have found, however, that cervical spine injury is established for the purposes of s 4 of the 1987 Act. It follows that I find that the cervical spine injury, as defined, materially contributed to the need for surgery.
What constitutes reasonably necessary treatment was considered by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC 2; (1986) 2 NSWCCR 32. His Honour stated:
“In determining whether a particular regimen is medical treatment and whether it is reasonably necessary that such be afforded to a worker and that such necessity results from injury, it appears to me some general principles can be stated:
1. Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2. However, though falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the party seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
The medical evidence is that the applicant has failed conservative treatments. The independent medical experts agree that surgery is the appropriate and recommended treatment. The cost of the recommended surgery is $46,251.55. It is not an ongoing cost.
I find that C5/6 and C6/7 anterior cervical discectomy and fusion surgery is reasonably necessary medical treatment pursuant to s 60 of the 1987 Act.

SUMMARY

On 22 August 2018, the applicant sustained an aggravation, acceleration, exacerbation or deterioration of a pre-existing cervical spine condition and his employment was the main contributing factor to that aggravation, acceleration, exacerbation or deterioration. Injury to the cervical spine is established pursuant to s 4 of the 1987 Act.
C5/6 and C6/7 anterior cervical discectomy and fusion surgery is reasonably necessary medical treatment pursuant to s 60 of the 1987 Act.
The order is set out in the Certificate of Determination.

[2024] NSWPIC 174

9 April 2024