Sawa v National Fleet Administrative Services Pty Ltd
[2024] NSWPIC 453
•20 August 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Sawa v National Fleet Administrative Services Pty Ltd [2024] NSWPIC 453 |
| APPLICANT: | Iwan Sawa |
| RESPONDENT: | National Fleet Administrative Services Pty Ltd |
| MEMBER: | Anthony Scarcella |
| DATE OF DECISION: | 20 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; whether applicant had recovered from the accepted lumbar spine injuries that occurred in the course of his employment with the respondent on 23 October 2017; whether the applicant suffered a separate injury to his lumbar spine in the course of his employment with the respondent on 25 January 2019; The State Government Insurance Commission v Oakley, Carr v State of New South Wales (Mid North Coast Local Health District) and New South Wales Department of Education v Johnson considered and applied; expert evidence in a fair climate; Paric v John Holland (Constructions) Pty Ltd, Makita (Australia) Pty Ltd v Sprowles, South Western Sydney Area Health Service v Edmonds, Hancock v East Coast Timbers Products Pty Ltd, NSW Police Force v Hahn and Bui v HyView Fabrications Pty Ltd considered; whether the two-stage surgery, namely, an L4-S1 anterior lumbar interbody fusion (stage 1) and L4-S1 decompression and fusion (stage 2) surgery proposed by Dr Brian Hsu is reasonably a necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent on 23 October 2017; Kooragang Cement Pty Ltd v Bates, Kirunda v State of New South Wales (No 4) and Murphy v Allity Management Services Pty Ltd considered and applied; Held – the applicant suffered injuries to the lumbar spine arising out of or in the course of his employment with the respondent on 23 October 2017; the applicant had not recovered from the injury to his lumbar spine on 23 October 2017 when he returned to work with the respondent following injury; two-stage surgery is reasonably necessary; respondent to pay costs of, and ancillary to, the two-stage surgery. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered injuries to the lumbar spine arising out of or in the course of his employment with the respondent on 23 October 2017 within the meaning of ss 4(a) and 9A of the Workers Compensation Act 1987. 2. The applicant had not recovered from the injury to his lumbar spine on 23 October 2017 when he returned to work with the respondent following injury. 3. The two stage surgery, namely, an L4-S1 anterior lumbar interbody fusion (stage 1) and The Commission orders: 4. The respondent is to pay for the costs of and ancillary to the two stage surgery, namely, an L4-S1 anterior lumbar interbody fusion (stage 1) and L4-S1 decompression and fusion (stage 2) proposed by Dr Brian Hsu at the gazetted rates. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Mr Iwan Sawa, is a 37-year-old man who was employed by the respondent, National Fleet Administrative Services Pty Limited t/as Kings Transport (Kings Transport), as a truck driver and installer.
On 23 October 2017, Mr Sawa alleges that, in the course of his employment with Kings Transport, two contractors, who were assisting him whilst he was pulling a trolley carrying two dishwashers, pushed the dishwashers causing him to fall backwards, resulting in the dishwashers and trolley landing on top of him. As a result, he injured his lumbar spine. Further, on 25 January 2019, Mr Sawa aggravated the injury to his lumbar spine whilst attempting to lift a washing machine in the course of his employment with Kings Transport.
Mr Sawa lodged a claim for benefits under the Workers Compensation Act 1987 (the 1987 Act).
On 23 July 2019, Mr Sawa, through his treating medical specialist, Dr Brian Hsu, requested AAI Limited t/as GIO (GIO) acting as the agent of NSW Self Insurance Corporation (icare), to approve two stage surgery to Mr Sawa’s lower back.[1]
[1] Application to Resolve a Dispute at pages 67-68.
On 13 August 2019, GIO issued Mr Sawa with a dispute notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying that the surgery proposed by Dr Hsu was reasonably necessary as a result of injury within the meaning of s 60 of the 1987 Act.[2]
[2] Reply at pages 10-12.
On 13 November 2019, GIO issued a dispute notice under s 78 of the 1998 Act denying ongoing liability for weekly payments of compensation within the meaning of s 33 of the 1987 Act and for medical and related treatment within the meaning of ss 59 and 60 of the 1987 Act. GIO also maintained its decision in its dispute notice dated 13 August 2019.[3]
[3] Reply at pages 13-16.
Mr Sawa, through his lawyers, requested a review of the decision contained in GIO’s dispute notice dated 13 November 2019 under s 287A of the 1998 Act.
On 8 April 2020, GIO issued the outcome of its review under s 287A of the 1998 Act maintaining its decision to deny liability and maintained that the proposed surgery was not reasonably necessary for the accepted injury and that any ongoing incapacity was not related to a work-related incident.[4]
[4] Reply at pages 17-20
On 30 March 2020, Mr Sawa, through his lawyers, again requested a review of the decision contained in GIO’s dispute notice dated 13 November 2019 under s 287A of the 1998 Act.[5]
[5] Reply at page 36.
On 6 July 2020, GIO issued the outcome of its review under s 287A of the 1998 Act maintaining its decision to deny liability for weekly payments of compensation and the surgery proposed by Dr Hsu.[6]
[6] Reply at pages 21-24.
On 18 July 2023, Mr Sawa, through his lawyers, again requested a review of the decision contained in GIO’s dispute notice dated 13 November 2019 under s 287A of the 1998 Act.
On 1 August 2023, GIO issued the outcome of its review under s 287A of the 1998 Act maintaining its decision to deny liability for weekly payments of compensation and the surgery proposed by Dr Hsu.[7]
[7] Reply at pages 25-30.
Mr Sawa, through his lawyers, lodged an Application to Resolve a Dispute (ARD) dated 17 April 2024 in the Workers Compensation Division of the Personal Injury Commission (Commission) claiming weekly benefits compensation from 6 January 2020 and ongoing under ss 37 and 38 of the 1987 Act; reasonably necessary medical and related treatment expenses under s 60 of the 1987 Act; and the cost of the two stage surgery, namely, an
L4-S1 anterior lumbar interbody fusion (stage 1) and L4-S1 decompression and fusion (stage 2) proposed by Dr Brian Hsu.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether Mr Sawa has recovered from the accepted injury to his lumbar spine on 23 October 2017;
(b) whether, after returning to work with Kings Transport on his pre-injury duties, Mr Sawa suffered an aggravation of the accepted injury to his lumbar spine on 25 January 2019, and
(c) whether the two stage surgery, namely, an L4-S1 anterior lumbar interbody fusion (stage 1) and L4-S1 decompression and fusion (stage 2) proposed by Dr Brian Hsu is reasonably necessary treatment as a result of the injury sustained by Mr Sawa on 23 October 2017 within the meaning of s 60 of the 1987 Act.
Matters previously notified as disputed
The issues in dispute were notified in the dispute notices referred to above.
Matters not previously notified
No other issues were raised.
PROCEDURE BEFORE THE COMMISSION
The parties participated in a conciliation conference and arbitration hearing in person in the Commission’s Darlinghurst premises on 10 July 2024. Mr Tom Grimes of counsel appeared for Mr Sawa, instructed by Mr Lorenzo Gutierrez, solicitor and Mr Greg Young of counsel appeared for Kings Transport, instructed by Mr Stephen Lott, solicitor.
During the conciliation phase:
(a) Mr Sawa discontinued his claim for weekly benefits, and
(b) Kings Transport advised that there is no dispute that Mr Sawa sustained an injury to his lumbar spine on 23 October 2017 but alleges that Mr Sawa has recovered from that injury.
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) ARD dated 17 April 2024 and attached documents;
(b) Reply dated 8 May 2024 and attached documents;
(c) Application to Admit Late Documents (AALD) lodged by Mr Sawa dated 5 July 2024 and attached documents, and
(d) AALD lodged by Kings Transport dated 5 July 2024 and attached documents.
Oral evidence
Neither party sought leave to adduce oral evidence from or to cross-examine any witness.
Mr Iwan Sawa’s evidence
In evidence there is a statement by Mr Sawa dated 17 November 2023.[8] I will now refer to the relevant parts of that statement.
[8] ARD at pages 1-14.
Mr Sawa stated that he was born in Iran and came to Australia in 1994 at the age of eight years.
Mr Sawa stated that, prior to the subject work-related injury, he was an outgoing, sociable, fit and healthy person. He attended the gym to maintain his health and fitness, at least, two or three times per week. He also played outdoor soccer and had an interest in fixing cars. He was involved in two motor vehicle accidents, the first being when he was aged about 14 or 15 years of age and the second being in 2012 (6 November 2012).[9] He fully recovered from the injuries sustained in those motor accidents and suffered no ongoing physical disabilities, apart from the scarring on his forehead.
[9] ARD at pages 251-293.
Mr Sawa stated that he commenced employment as a truck driver and installer at Kings Transport in April 2016. He took on this work because it was a cleaner job than his previous occupation of panel beating and spray-painting.
Mr Sawa stated that, on 23 October 2017, he arrived at the Miele warehouse, collected his run sheet and found that he was assigned two contractors from a labour hire company to work with him that day. The contractors were inexperienced. He instructed them to watch him load dishwashers onto a trolley and pull them onto his truck. He told the contractors not to assist whilst he was pulling the trolley onto the truck but to watch him do so. He began to pull the loaded trolley onto his truck and the contractors came to his assistance despite him telling them not to do so because it was dangerous. The two contractors pushed the top dishwasher towards him whilst he was pulling the trolley, which caused him to lose his balance and fall backwards, landing on his back with the dishwashers and trolley landing on top of him. The initial impact was to his back, neck and right shoulder.
Mr Sawa stated that he tried to push the trolley and dishwashers off him and, with some assistance from the contractors, was able to free himself. At the time, he felt immediate pain in his lower back and right shoulder and he was angry at the contractors. He reported the incident to his manager. He continued to carry out his duties but as the day went on, the pain became progressively worse. He completed the day’s work because he was aware that it was a busy period for Kings Transport.
Mr Sawa stated that, the next morning, he had excruciating pain in his lower back but attempted to go to work. When he arrived at work, he met with his manager, Arhman, who drove him to Dr Ernest Paw of Dundas Valley Medical Centre. About one month later, he underwent an MRI scan of his lower back that showed a disc injury. He was prescribed analgesic medication, physiotherapy and rest.
Mr Sawa stated that Dr Paw subsequently certified him fit for light duties for about six months. The light duties provided by Kings Transport included office work or occasionally driving the truck but no lifting, pushing, or pulling of items. Whilst on light duties, his back pain fluctuated in severity. He reported his pains and complaints to his manager, Arhman. Arhman was not able to provide him with lighter duties and so, he continued to push himself to work whilst in pain which caused increasing pain in his back and legs. After a few weeks on light duties, Dr Paw continued to increase his lifting capacity over time.
Mr Sawa stated that he was required to undergo a work capacity assessment and was certified fit to resume his pre-injury duties (from 28 March 2018).[10]
[10] Reply at page 45.
Mr Sawa stated:
“During my attempts to return to work, my injuries had not resolved and my pain fluctuated. Some days it caused me more pain than others and I reported this to my manager at the time.”[11]
[11] ARD at page 9 at [121].
Mr Sawa stated that, on 9 September 2018, he consulted Dr Brian Hsu because of increasing pain. Dr Hsu recommended further conservative care and investigations. Mr Sawa underwent two cortisone injections into his lumbar spine. The first injection worsened his pain and the second injection was of minimal benefit. Nevertheless, he continued to struggle at work with his injuries and pain.
Mr Sawa stated that, on 25 January 2019, he tried lifting a washing machine at work and
re-aggravated his lower back injury. He reported the incident to his team leader, Peter and he also informed Arhman. He attended work the next day but experienced extreme difficulty walking. His employer directed him to consult Dr Paw. Dr Paw again placed him on light duties until his employment was terminated in October 2019.Mr Sawa stated that, whilst he was on light duties, Dr Hsu recommended that he undergo an anterior and posterior interbody fusion from L4 to S1. The insurer did not approve the surgery.
Mr Sawa stated that, at the time he returned to light duties, Kings Transport were in the process of downsizing and removing employees. He was told that Kings Transport were unable to continue to provide suitable duties for him and that they could not hold his position open whilst he was on light duties.
Mr Sawa stated that, following the termination of his employment with Kings Transport, he did not work for the remainder of 2019 and most of 2020. Thereafter, he attempted part-time work as a mechanic and spray painter with difficulty because his financial situation required him to keep working. In this regard, he has relied on friends to find him jobs that catered to his need for light duties. Despite performing light duties, employment continues to cause him pain. His injuries are not getting any better. He continues to suffer pain due to the incidents at work on 23 October 2017 and 25 January 2019. He remains restricted in his ability to perform his pre-injury duties and regular daily tasks.
Mr Sawa stated that he continued to struggle with low back pain; pain radiating down both legs, worse with activity; heat in both feet; and leg numbness when lying down.
Mr Sawa stated that, in December 2020, he commenced employment with Intense Paint and Panel. A friend owned the business, was aware of his injuries and was sympathetic towards him. He was offered light duties on a part-time basis. The duties involved managing paint and panel beating materials, helping customers and taking telephone calls. He worked eight hours per day, two to three days per week. He ceased work at Intense Paint and Panel on
7 January 2022 because his employer was not processing payments properly.Mr Sawa stated that, after leaving Intense Paint and Panel, he continued to apply for employment in workshops as a mechanic and panel beater as these were the only types of jobs he had experience in. He was turned down multiple times once it was discovered he had been injured.
Mr Sawa stated that, on 19 February 2023, he commenced employment with Outer West Smash Repairs and Restorations as a general hand. He got the job because he had a friend who knew the owner of the business. He worked three days per week, eight hours per day on a part-time basis. He undertook light duties that included cleaning, customer consultations, providing quotes to customers, painting, panel beating, operating a forklift and taking telephone calls. He did not find the work easy. The injuries continued to cause him pain whilst at work. He needed to work in order to survive financially.
At the time of providing his evidentiary statement, Mr Sawa was still employed by Outer West Smash Repairs and Restorations. On the evidence provided, that situation changed in about March/April 2024 when Mr Sawa was employed by ALT Luxury Travel Pty Ltd as a coach driver.[12]
[12] Applicant's AALD dated 5 July 2024 at page 21 and respondent's AALD dated 5 July 2024 at pages 1-6.
Mr Sawa stated that his conservative treatment to date had consisted of consultations with his general practitioner and medical specialist; cortisone injections; consultations with a psychologist; exercise therapy; chronic pain management; and physiotherapy. None of this treatment provided much assistance. He eventually consulted a psychiatrist because his injuries and pain impacted his mental health.
Mr Sawa stated:
“Despite non-operative treatment, my condition has not improved. Currently, my condition has now become worse and it is continuing to deteriorate and caused increasing pain.
Moving forward, I consider surgery will be the only way to improve my symptoms and condition so that I may be able to move on with my life and return to pre-injury duties.”[13]
[13] ARD at pages 11-12 at [153]-[154].
Mr Sawa stated that his injuries had continued to interfere with his activities of daily living and provided a list of examples in this regard.[14]
[14] ARD at page 12 at [160].
The treating medical evidence
On 24 October 2017, Mr Sawa consulted Dr Chi Paw, general practitioner, of Dundas Valley Medical Centre. Dr Paw recorded a complaint of back pain from a work-related injury whilst carrying a trolley with a washing machine, slipping and falling with the trolley landing on his body. Right shoulder pain and pain and tenderness in the cervical spine and thoracic spine was recorded. Dr Paw referred Mr Sawa for X-rays of his cervical spine and his thoracic spine. He prescribed him one 200mg Celebrex capsule per day. He also issued Mr Sawa with a certificate of capacity.[15]
[15] ARD at page 71.
On 27 October 2017, Mr Sawa consulted Dr Paw, who recorded that his pain had improved. Dr Paw noted that there was still midline tenderness in the upper thoracic spine and that there was no fracture or dislocation demonstrated on the X-rays. He also noted that Mr Sawa would like to return to full duties the following week.[16]
[16] ARD at page 72.
On 31 October 2017, Mr Sawa consulted Dr Paw, who recorded that there had been a recurrence of back pain. There was no radiation of pain into the lower limbs but there was stiffness in the back. Dr Paw referred Mr Sawa for physiotherapy and certified him fit to return to work on light duties.[17]
[17] ARD at page 72.
On 13 November 2017, Mr Sawa consulted Dr Paw, who noted that he had progressed at physiotherapy and was to continue with passive therapy. He noted tenderness in the back without neurological symptoms. He noted that consideration be given for referral to an exercise physiotherapist and for an MRI scan, if needed.[18]
[18] ARD at page 72.
On 27 November 2017, Mr Sawa consulted Dr Paw, who recorded a complaint of increased back pain after washing the dishes at home. He felt like there was sciatica on the right side. The pain had slightly improved by the time of the consultation. Dr Paw recommended that Mr Sawa continue on Celebrex and referred him for a CT scan of the lumbar spine.[19]
[19] ARD at pages 72-73.
On 11 December 2017, Mr Sawa consulted Dr Paw, who recorded that an MRI scan of the lumbar spine demonstrated a mild disc protrusion. They discussed the ongoing need for physiotherapy.[20]
[20] ARD at page 73.
On 22 December 2017, Mr Sawa consulted Dr Paw, who recorded that Mr Sawa’s strength had improved and that he was fit for ongoing suitable duties, increasing his lifting capacity to 15kg.[21]
[21] ARD at page 73.
On 22 January 2018, Mr Sawa consulted Dr Paw, who recorded that Mr Sawa reported “on and off pain”. Dr Paw recommended ongoing physiotherapy and the need to closely
follow-up on his progress and reassess his work capacity.[22][22] ARD at page 73.
On 5 February 2018, Mr Sawa consulted Dr Paw, who recorded that Mr Sawa was improving. Dr Paw increased Mr Sawa’s lifting capacity and recommended he now undergo active physiotherapy.[23]
[23] ARD at pages 73-74.
On 26 February 2018, Mr Sawa consulted Dr Paw, who recorded that Mr Sawa reported improvement in lifting weights. Dr Paw recommended ongoing physiotherapy.[24]
[24] ARD at page 74.
On 27 March 2018, Mr Sawa consulted Dr Paw, who recorded that Mr Sawa could return to full duties on a trial basis with his lifting limit increased up to 25kg with the proviso that he be reviewed if needed at any time.[25]
[25] ARD at page 74.
On 11 April 2018, Mr Sawa consulted Dr Chingching Zhao, general practitioner, of Dundas Valley Medical Centre. Dr Zhao recorded a case conference with Mr Sawa and GIO’s rehabilitation provider, noting that he had trialled pre-injury duties for two weeks and was handling most jobs fine. However, intermittently he had heavy jobs that caused unstable footing. Mr Sawa was still a bit anxious about a recurrence of his back injury. Dr Zhao recommended that he continue on the trial of pre-injury duties for another two weeks.[26]
[26] ARD at pages 74-75.
On 23 April 2018, Mr Sean Nelson, physiotherapist, reported to Dr Paw that Mr Sawa was recovering well from an upper and lower back strain at work in October 2017. He noted that, over the past month, Mr Sawa had returned to pre-injury duties with little to no aggravation and was handling his work well. Mr Sawa reported resolving right-sided mid-lower back pain at 1 to 2/10 and only pain with active lumbar extension at end range up to 1 to 2/10, at times. He comfortably lifted floor to waist 25kg repetitively with a good squatting technique and his sitting and standing tolerances were unlimited. Mr Nelson reported that Mr Sawa was receiving ongoing treatment focusing on a floor based Pilates strengthening routine with home exercise prescription including stretches and functional strengthening. He was progressing well with his lumbo-pelvic stability. Mr Nelson concluded:
“Mr Sawa has performed full pre-injury duties in the past month and is not limited with his role at work. He is performing all duties with minimal aggravation of his pain and he is keen to continue with pre-injury duties. I will continue to review Mr Sawa and supervise his home exercise program for prevention purposes.”[27]
[27] Reply at page 53.
On 24 April 2018, Mr Sawa consulted Dr Paw, who noted that he had been fit for pre-injury duties for one month and had no issues. Dr Paw recommended that Mr Sawa continue physiotherapy for about one month and issued him with a final certificate of capacity.[28]
[28] ARD at pages 75 and Reply at pages 50-52.
On 2 May 2018, Ms Natalie Mizzau, rehabilitation consultant, of Recovery Partners produced a return to work closure report for GIO.[29] Ms Mizzau identified the outcome achieved as having Mr Sawa fit to commence pre-injury duties on 28 March 2018 on a trial basis as certified by Dr Paw. Since the upgrade to a trial of pre-injury duties, Mr Sawa was able to perform the same with no concerns. Accordingly, all parties agreed to close the case.
[29] Reply at pages 54-57.
Ms Mizzau provided a summary of Recovery Partners’ intervention in Mr Sawa’s return to work goal. She referred to a case conference with Dr Zhao on 11 April 2018 to discuss Mr Sawa’s experience performing his pre-injury duties over the previous two weeks. She noted that Mr Sawa reported that he had not experienced any significant issues with his
pre-injury duties, although, on occasion, he had been required to “perform some challenging deliveries requiring carrying washing machines up a large number of steps”,[30] which produced some mild back pain.[30] Reply at page 56.
Ms Mizzau noted that, in a communication with Mr Nelson, Mr Sawa reported to the latter that he had been performing all duties at work with minimal aggravation of his pain.
Ms Mizzau referred to a case conference with Dr Paw on 24 April 2018 where Mr Sawa reported to have performed his pre-injury duties over the past four weeks without any issues and voiced his desire to obtain a final clearance for pre-injury duties. Mr Sawa was issued with a final pre-injury duties certificate and advised to utilise the correct manual handling techniques when lifting at work, as well as to continue with maintenance physiotherapy sessions weekly for the next few weeks to minimise the risk of re-injury.
In respect of future recommendations, Ms Mizzau reported that Mr Sawa was to adhere to best practice manual handling and ergonomic technique at all times; he was to immediately advise his employer if difficulties arose with the performance of work duties and/or deterioration of his injury symptoms; and he was to continue to adhere to medical directions, including instructed exercises, as directed by the treating practitioners.
On 18 June 2018, Mr Sawa consulted Dr Paw, who recorded that Mr Sawa still experienced pain “on and off”. There were also some symptoms of sciatica (radiculopathy S1 on the left). He referred Mr Sawa for an MRI scan of his lumbar spine and advised him to continue with physiotherapy.[31]
[31] ARD at page 75.
On 29 June 2018, Mr Sawa underwent an MRI scan of his lumbar spine by Dr Kevin Tay, radiologist. Dr Tay concluded that there was no canal neural exit foraminal stenosis. There were minimal disc protrusions at L4/5 and L5/S1.[32]
[32] Reply at page 58.
On 5 July 2018, Mr Sawa consulted Dr Paw, who recorded that they discussed the result of the lumbar MRI scan that demonstrated a minor disc bulge. Dr Paw recommended that he continue on his current management and take Celebrex, if needed.[33]
[33] ARD at pages 75-76.
On 2 August 2018, Mr Sawa consulted Dr Paw, who recorded Mr Sawa complaining of an ongoing flare-up of back pain. He referred Mr Sawa to Dr Brian Hsu, spine surgeon, and noted that referral to a rehabilitation specialist may be needed.[34]
[34] ARD at page 76.
On 5 September 2018, Dr Hsu reported to Dr Paw that Mr Sawa’s lumbar back pain and lower limb symptoms may be related to the L4/5 and L5/S1 disc bulging as seen on the MRI scan dated 29 June 2018. He arranged for Mr Sawa to undergo a lumbar spine bone scan to assess for any occult pathology.[35]
[35] ARD at page 145.
On 21 September 2018, Mr Sawa underwent a whole body scan including a SPECT/CT of his lumbosacral spine by Dr Guy O’Connell, radiologist, on the referral of Dr Hsu. Dr O’Connell reported a normal study.[36]
[36] Reply at page 59.
On 2 November 2018, Dr Hsu reported to Dr Paw that he had consulted Mr Sawa on 30 October 2018. Dr Hsu reported that the bone scan did not demonstrate any significant uptake in the lumbar spine or in the intervertebral disc and that there was no increased uptake in the facet joint. He opined that this suggested that Mr Sawa’s pathology was likely confined to the intervertebral discs and more related to the annular tear and disc bulges. He advised that he had arranged for Mr Sawa to undergo a trial of L5-S1 epidural steroid injections as the next step in his treatment.[37]
[37] ARD at page 148.
On 28 November 2018, Mr Sawa consulted Dr Peter Chong, general practitioner, of Dundas Valley Medical Centre. Dr Chong recorded that Mr Sawa’s back pain was getting worse and that even when he was not carrying anything but just bending over, his “back plays up”. Mr Sawa reported intermittent pain down both legs. They discussed treatment and decided to make no changes.[38]
[38] ARD at pages 76-77
On 7 January 2019, Mr Nelson produced a discharge report for GIO.[39] Mr Nelson reported that Mr Sawa was discharged from physiotherapy services in October 2018 in respect of his lower back pain following a workplace injury in October 2017. He noted that Mr Sawa had returned to full duties as a white goods delivery and installation assistant. On his last assessment of Mr Sawa, the latter reported pain after long shifts at work or when lifting heavy loads up multiple sets of staircases. Active movements were most painful in lumbar extension and he was tender on palpation over his left-sided lumbar vertebrae at levels
L1-L3. Mr Nelson reported that Mr Sawa had regularly complained of minor flare-ups that he had, mostly, self-managed. However, Mr Nelson questioned the longevity of Mr Sawa in his current position working full duties, in that, the repetitive and sustained loads may be too much for his capacity in the future.[39] Reply at page 60.
On 18 January 2019, Dr Hsu reported to Dr Paw that he had consulted Mr Sawa on 17 January 2019 after his L5-S1 epidural steroid injection. Dr Hsu reported that the injection only gave Mr Sawa some relief during the anaesthetic phase but that did provide some diagnostic information. Dr Hsu opined that Mr Sawa’s symptoms were suggestive of more than one disc being involved as the L5-S1 injection did not completely resolve all his pain. He recommended that Mr Sawa undergo an updated MRI scan so that he may plan to proceed with other injections or treatment options, depending on the findings.[40]
[40] ARD page 149.
On 25 January 2019, Mr Sawa consulted Dr Chong, who noted that Mr Sawa reported
re-injuring his back that day carrying the washing machine whilst trying to get past a doorway. When he put the washing machine down, he again felt pressure in his back with some shooting pain down the legs bilaterally. Dr Chong recorded that Mr Sawa stated that he had known sciatic nerve irritation; complained of weakness of the leg; had undergone cortisone injections that worsened his symptoms; had been consulting a physiotherapist; and since his last consultation had experienced pain every day. On examination, Dr Chong observed an antalgic gait; a full range of motion of the lumbar spine; generalised tenderness of the lumbar spine on palpation; and no weakness in the lower legs. Dr Chong’s diagnosis was one of sciatic nerve irritation. Dr Chong recommended rest, gentle mobilisation, stretches and simple pain relief. Mr Sawa was to return if he was unable to perform his usual pre-injury duties.[41][41] ARD at page 77.
On 29 January 2019, Mr Sawa consulted Dr Valerie Tung, general practitioner, of Dundas Valley Medical Centre. Dr Tung noted that Mr Sawa was still in pain and would need to be reviewed by Dr Paw. Dr Tung recorded that Mr Sawa was not fit for any duties that week as work was unable to provide him with light duties.[42]
[42] ARD at pages 77-78.
On 1 February 2019, Mr Sawa consulted Dr Paw, who noted his complaint of ongoing back pain. They had a long discussion about the WorkCover process and legal issues. Dr Paw noted that Mr Sawa was awaiting review by Dr Hsu.[43]
[43] ARD at page 78.
On 5 February 2019, Mr Sawa underwent an MRI scan of his lumbar spine by Dr Wong, radiologist, on the referral of Dr Hsu. Dr Wong concluded that the scan demonstrated an L4/5 central broad-based protrusion with minimal contact of bilateral descending L5 nerve roots, mildly worse on the left and a minimal diffuse disc bulge at L5/S1 without significant foraminal narrowing or evidence of nerve root impingement.[44]
[44] Reply at pages 61-62.
On 15 February 2019, Mr Sawa consulted Dr Paw, who noted that he was to be reviewed by Dr Hsu and was to start back on light duties over the next two weeks.[45]
[45] ARD at page 78.
On 4 March 2019, Dr Hsu reported to Dr Paw that he had consulted Mr Sawa on 28 February 2019. Dr Hsu reported that the MRI scan confirmed that there was also L4/5 disc pathology and that this explained his further symptoms despite an apparently successful L5/S1 injection. He recommended a trial of an L4/5 epidural injection as the next step in Mr Sawa’s non-operative treatment.[46]
[46] ARD at page 150.
On 29 March 2019, Mr Sawa consulted Dr Paw after undergoing the L4/5 epidural injection arranged by Dr Hsu. Dr Paw recorded that Mr Sawa’s back was still painful and possibly worsened two days following the injection.[47]
[47] ARD at page 79.
On 30 April 2019, Mr Sawa consulted Dr Paw reporting that he had undergone the injection of Celestone in his lower back but still had pain. He had worked for a few hours but the pain recurred and he was considering an operation.[48]
[48] ARD at page 79.
On 16 May 2019, Dr Hsu reported to Dr Paw that Mr Sawa had consulted him on 9 May 2019 following his L4/5 epidural steroid injection. Dr Hsu reported that the injection gave Mr Sawa some temporary relief but did not solve all his back and leg problems. Dr Hsu opined that, overall, he had improved. They discussed management options being, proceed with chronic pain management and further non-operative treatment or, surgery. Dr Hsu recommended that they proceed with a further course of physiotherapy and exercise therapy and, depending on how he responded, he would review him again in two to three months’ time.[49]
[49] ARD at page 151.
On 3 June 2019, Mr Sawa consulted Dr Paw, who recorded that he had an ongoing workers compensation issue, was receiving ongoing physiotherapy and was to be reviewed by Dr Hsu.[50]
[50] ARD at page 79.
On 27 June 2019, Mr Sawa consulted Dr Paw, who recorded that Mr Sawa reported ongoing pain and was considering operative options.[51]
[51] ARD at page 79.
On 18 July 2019, Dr Hsu reported to Dr Paw that Mr Sawa had consulted him on 9 May 2019 regarding his continued non-operative treatment for significant back pain. He noted that Mr Sawa did not consider chronic pain management as an option but had decided to proceed with surgical intervention in the form of an L4 to S1 anterior and posterior decompression and fusion. Dr Hsu reported that the surgery would mainly decrease his level of pain rather than completely resolve his back pain. Dr Hsu expected a reduction in symptoms of 50%. Dr Hsu reported that he would seek approval from the insurer to proceed with the proposed surgery.[52]
[52] ARD at page 152.
On 23 July 2019, Dr Hsu provided an estimate of the fees for Mr Sawa’s proposed surgery to GIO for its approval.[53]
[53] ARD at page 154.
On 25 July 2019, Mr Sawa consulted Dr Debbie Van, general practitioner, of Advance Health Medical Centre. Dr Van noted that Mr Sawa had recently moved into the area from Dundas Valley. She recorded a history of Mr Sawa’s injury that included a description of the incident on 23 October 2017 and the exacerbation of that injury a few months before the consultation. Mr Sawa complained of ongoing lower back pain and bilateral sciatica. On examination, Dr Van observed midline bony tenderness around the lumbar region and no paravertebral pain. Range of motion was restricted on flexion (30°); extension (10° to 30°) and lateral flexion bilaterally (45°). Gait was normal and he was able to walk on heels and toes. He requested a transfer to the Advance Health Medical Centre.[54]
[54] ARD at pages 172-173.
On 1 August 2019, Ms Kate Huynh, psychologist, of Complete Allied Health Care reported to Dr Van that Mr Sawa had consulted her on 26 July 2019. Ms Huynh took a brief history of Mr Sawa’s work-related injury and treatment thereafter that was consistent with the evidence. She noted that Mr Sawa’s reported symptoms included persistent low mood most of the time; reduced motivation and activity levels; social withdrawal and isolation; poor sleep due to over-thinking; anxiety, including heart palpitations, difficulty breathing, and choking sensations; and overthinking and worrying about the future. Ms Huynh opined that Mr Sawa presented with symptoms consistent with a major depressive disorder and generalised anxiety disorder. She recommended that Mr Sawa continue attending psychological counselling sessions to address his symptoms and improve his overall mental health.
On 23 August 2019, Mr Sawa consulted Dr Christine Hua, general practitioner, of Advance Health Medical Centre. Dr Hua had a case conference with Mr Sawa and GIO’s rehabilitation consultant. It was recorded that Mr Sawa was awaiting approval of Dr Hsu’s proposed surgery and that Mr Sawa was now on restricted duties performing mainly office work. He was no longer doing heavy lifting. The company was changing its work contracts and Mr Sawa’s position may become redundant.[55]
[55] ARD at page 173.
On 25 September 2019, Mr Sawa consulted Dr Hua in the presence of GIO’s rehabilitation consultant. Dr Hua recorded that Mr Sawa’s condition was much the same; that he was still undergoing physiotherapy; that he was still undergoing counselling; and that there had been no change in his work capacity. She also noted that Mr Sawa was still awaiting the insurer’s approval for the proposed spinal fusion.[56]
[56] ARD at page 173.
On 25 October 2019, Mr Sawa consulted Dr Hua in the presence of GIO’s rehabilitation consultant. Dr Hua recorded that Mr Sawa had recently lost his job. She noted that there was ongoing pain in the lower back radiating down into the legs and that there was restricted mobility and function. He continued to undergo counselling in respect of his low mood and underwent physiotherapy twice per week. She noted that he still awaited the insurer’s approval for surgery. Dr Hua prescribed one nightly Lyrica 25mg capsule.[57]
[57] ARD at page 174.
On 27 November 2019, Mr Sawa consulted Dr Hua in the presence of GIO’s rehabilitation consultant. Dr Hua noted that a letter from GIO stated that Mr Sawa’s claim would not be approved beyond 6 January 2020. Mr Sawa complained of ongoing pain and reported that he was taking 50mg of Lyrica without effect. Dr Hua increased the dosage of Lyrica to 75mg.[58]
[58] ARD at page 174.
On 13 January 2020, Mr Sawa consulted Dr Hua complaining of ongoing low back pain. Dr Hua prescribed him one 75mg capsule of Lyrica daily.[59]
[59] ARD at page 174.
On 10 March 2020, Dr Hsu produced a report at the request of Mr Sawa’s lawyers.[60] Dr Hsu reported that Mr Sawa had been experiencing back and leg pain since 2017 and that his symptoms were due to the repetitive and heavy nature of his work and the work-related incident in 2017. Dr Hsu’s diagnosis was one of discogenic back pain. The proposed course of treatment was a bone scan and surgery. The prognosis was for improvement with surgery. He causally related the injury to the incident at work. In respect of work capacity, he opined that was dependent on the success of the treatment received. He agreed that the proposed surgery was reasonable and necessary to maximise medical improvement in Mr Sawa’s condition.
[60] Reply at pages 63-64.
On 13 April 2020, Mr Sawa consulted Dr Hua complaining of ongoing low back pain. Dr Hua prescribed him one 75mg capsule of Lyrica daily.[61]
[61] ARD at page 175.
On 4 June 2020, Dr Hsu produced a supplementary report at the request of Mr Sawa’s lawyers.[62] Dr Hsu reported that Mr Sawa had experienced his current symptoms for more than three years. Non-operative treatment had failed. He could continue with chronic pain management indefinitely or he could consider surgical intervention. The indication for surgery in Mr Sawa’s case was clearly the failure of non-operative treatment.
[62] ARD at pages 29-30.
On 26 August 2020, Mr Sawa consulted Dr Hua complaining of ongoing low back pain and stiffness. A few days earlier, he bent over and his back “played up” and he was stuck for 10 minutes due to pain and stiffness. Dr Hua referred him for physiotherapy and prescribed him one 75mg capsule of Lyrica daily and one 40mg tablet of Somac daily.[63]
[63] ARD page 175.
On 25 November 2020, Mr Sawa consulted Dr Hua complaining of ongoing low back pain. He felt unable to tolerate 20 hours of work per week and requested a reduction to 15 hours per week. Dr Hua recommended that Mr Sawa cease taking Somac and substituted a prescription for one 40mg Pantoprazole tablet daily.[64]
[64] ARD at page 176.
On 15 February 2021, Mr Sawa consulted Dr Hua complaining of persistent low back pain with pain now extending into the mid-back. She noted that he had started working part-time as a spray painter and was taking care not to bend. She referred Mr Sawa for physiotherapy.[65]
[65] ARD at page 176-177.
On 27 April 2021, Dr Hsu produced a further report at the request of Mr Sawa’s lawyers.[66] Dr Hsu opined that Mr Sawa’s significant lumbar back pain and lower limb symptoms were due to L4/5 and L5/S1 disc bulging as evidenced on an MRI scan. He noted that Mr Sawa demonstrated significant back pain on lumbar extension. The pathology was confined to the intervertebral discs and more related to the annular tear and disc bulges. On examination, Mr Sawa demonstrated a decreased range of motion of the lumbar spine in forward flexion and extension due to exacerbation of back pain. Dr Hsu’s diagnosis was one of L4/5 and L5/S1 intervertebral disc pathology. In respect of treatment, Dr Hsu noted that Mr Sawa had undergone spinal injections, physiotherapy, exercise therapy and chronic pain management. He opined that a surgical option would also be indicated if non-operative treatment failed. The surgical option would be in the form of an L4 to S1 anterior and posterior decompression and fusion. Dr Hsu opined that Mr Sawa’s prognosis was good if treatment was successful. He causally related Mr Sawa’s condition to the work-related incident. He opined that the aim of the proposed surgery was to reduce back and leg problems by at least 50% with anticipated return to pre-injury duties within 6 to 12 months following surgery. Dr Hsu opined that Mr Sawa had now exhausted non-operative treatment and required surgery.
[66] ARD at pages 31-34.
On 15 July 2021, Mr Sawa consulted Dr Hua complaining that his low back pain was much unchanged. He was working 15 hours per week but experiencing significant pain in doing that work.[67]
[67] ARD at page 177.
On 15 September 2022, Dr James van Gelder reported to Dr Hua that Mr Sawa had consulted him on 13 September 2022.[68] Dr van Gelder took a brief history of Mr Sawa’s
work-related injury and subsequent treatment. In respect of current symptoms, Dr van Gelder noted complaints of persistent constant low back pain rated at 4 to 5/10; exacerbation of symptoms when lifting and carrying or working at a bench; exacerbation of symptoms by attempting exercise based treatments; difficulty walking more than 30 minutes; shooting and burning radiating from his back mainly down the back of his legs; and occasional sudden loss of feeling in the legs when driving.[68] ARD pages 49-50.
On examination, Dr van Gelder observed tenderness in the low back around the L4/5; restricted range of motion in the lower back; there was much expression of pain; lifting the arms caused low back pain; straight leg raising caused tenderness in the hips and thighs; stiffness and guarding on examination of the hips; sacroiliac joint tests were uninterpretable; there were no focal neurological signs in the legs; and he walked slowly.
Dr van Gelder was aware of the surgery proposed by Dr Hsu and that the latter advised Mr Sawa to undergo the proposed surgery and get it over and done with so that he could return to work. Dr van Gelder noted that the February 2019 MRI scan was essentially normal. They discussed the proposed surgery and Dr van Gelder observed:
“He does not have deformity, instability, nerve compression or any red flag condition that would make an indication for surgical treatment. Most surgeons would not offer him a surgery for subtle disc bulging for an injured worker with non-specific low back pain. It is not possible to be confident, which is the symptomatic level in his lumbar spine and surgery will potentially exacerbate symptoms on the other levels in his lumbar spine. The success rate for spinal fusion for injured workers in NSW for nonspecific back pain is very low. On the other hand, Mr Sawa is motivated for surgical treatment and is unlikely to progress with rehabilitation until he has the surgery that is being offered to him so for these reasons he should have his operation. Surgery will be more successful after litigation. He will need an update of his imaging of course.”[69]
[69] ARD at pages 49-50.
On 3 April 2023, Mr Sawa underwent a bone scan by Dr Patrick Donnelly, radiologist, on the referral of Dr Hua. Dr Donnelly found no specific focal scintigraphic abnormality in the lumbosacral spine to explain Mr Sawa’s ongoing symptoms.[70]
[70] ARD at page 65.
On 5 April 2023, Mr Sawa underwent an MRI scan of his lumbar spine by Dr Waterland, radiologist, on the referral of Dr Hua. Dr Waterland found that the L4/5 disc was desiccated and narrow. There was a mild posterocentral disc protrusion associated with an annular tear which was minimally indenting the anterior aspect of the thecal sac but not causing significant canal stenosis. It was slightly eccentric to the left and was mildly displacing the left L5 nerve root in the lateral recess at L4/5. The right L5 nerve root lay in normal position. The foramina were of reasonable size and the L4 nerve roots exited freely. The L5/S1 disc defined normally and the foramina were of reasonable size.[71]
[71] ARD at page 66.
On 12 April 2024, Dr Hua provided a report at the request of Mr Sawa’s lawyers.[72] Dr Hua provided a brief description of Mr Sawa’s work-related injury on 23 October 2017 that was consistent with the evidence. She noted that Mr Sawa attended his general practitioner at the time and was referred for medical imaging and physiotherapy. He gradually returned to
pre-injury duties but was unable to continue due to exacerbations of low back pain. He eventually lost his job and tried working as a mechanic and later, as a spray painter. However he was not able to maintain work due to his chronic back pain.[72] Applicant's AALD dated 5 July 2024 at pages 23-24.
Dr Hua noted that Mr Sawa complained of recurrent low back pain radiating down both legs, worse with activities. On examination, she observed midline tenderness around the lumbar region with restricted range of motion in all directions. Reflexes and gait were normal. Dr Hua diagnosed a musculo-ligamentous strain and exacerbations of degenerative changes in the lower lumbar spine. She opined that prognosis was poor given that the pain had persisted for several years. She also opined that the mechanism of injury was consistent with Mr Sawa’s condition. Dr Hua opined that ongoing physiotherapy and exercise physiology would be beneficial to strengthen the lumbar spine. She was not prepared to assess the need for surgery because she was not a neurosurgeon. In respect of work capacity, Dr Hua noted that Mr Sawa continued to experience low back pain and therefore, was unfit for pre-injury duties that involved heavy lifting and a lot of manual labour. He was currently certified fit for restricted duties of less than 15 hours per week avoiding excessive or repetitive bending, lifting, heavy pushing/pulling, twisting and prolonged sitting and standing.
The forensic medical evidence
Dr Raymond Wallace – 25 September 2019
On 10 September 2019, Mr Sawa consulted Dr Raymond Wallace, orthopaedic surgeon, at the request of GIO. In evidence, there is a report by Dr Wallace dated 25 September 2019.[73]
[73] Reply at pages 65-70.
Dr Wallace took a history that Mr Sawa was employed as a freight delivery driver by Kings Transport delivering Miele products from a warehouse in Rosehill. Duties included loading up his truck and then delivering and installing whitegoods in customers’ homes. The whitegoods would usually be moved on a trolley but sometimes, had to be manhandled up stairways where trolley access was not possible.
Dr Wallace took the following history of the subject injury:
“He suffered an injury at his lumbar spine in a fall at work on 23 October 2017. At that time, he was working with a casual labourer who was not well trained in his job. Whilst he was at his employer's warehouse, he had loaded two dishwashers weighing 65kg each onto a trolley. He tilted the trolley and some co-workers pushed on the other side causing him to overbalance and fall backwards onto his back with the dishwasher landing on top of him. He noted the onset of lumbar spinal pain but continued work that day. He subsequently noted increasing pain at his lumbar spine and reported the incident to his employer. He returned to work the following day but had difficulty in walking and driving due to back pain.”[74]
[74] Reply at page 66.
Mr Sawa told Dr Wallace that he was able to resume his pre-injury duties at work from March 2018. He was referred for physiotherapy which continued until 23 April 2018. He subsequently noted ongoing lumbar spinal pain and had difficulty with heavy lifting tasks. He was reviewed by Dr Paw in August 2018 and certified unfit for work. He underwent a
cortico-steroid injection at his lumbar spine which failed to relieve his pain. He was referred to and consulted Dr Hsu on 5 September 2018. Dr Hsu ordered further investigations. On review on 18 July 2019, Dr Hsu recommended operative intervention in the form of an anterior and posterior decompression and fusion from L4 to S1.Dr Wallace recorded Mr Sawa’s present complaints as a constant aching pain at the L4 spinous process radiating into the paravertebral regions bilaterally as well as to the midline at the L5 spinous process with no radiation to his lower limbs. He had previously noted intermittent aching pain at his bilateral buttocks and posterior aspects of his lower limbs to the level of the ankles bilaterally. The lumbar spinal pain was worse with lifting, bending or twisting movements, standing, sitting or any range of movement. The pain was relieved by rest. He did not report paraesthesia, numbness or weakness at his lower limbs. He complained of stiffness in the lumbar spine.
In respect of Mr Sawa’s current activities, Dr Wallace reported that after his work incident in October 2017, he had no time off work but continued work at part-time light duties. He was able to resume his pre-injury duties at work from March 2018 which continued until June 2018. He was then certified unfit for work for two weeks and then returned to work on
part-time light duties. He currently continued work on part-time light duties at four hours per day, five days per week with work restrictions including no lifting over 10kg, no pushing or pulling over 10kg and no sitting or standing for more than 30 minutes.On clinical examination, Dr Wallace observed that Mr Sawa was 173cm tall and moderately overweight with truncal obesity at 94kg. He was in no obvious discomfort throughout the consultation. Examination of Mr Sawa’s lumbar spine demonstrated a range of movement of forward flexion to the knees; extension 10°; left lateral tilt 30°; right lateral tilt 30°; left rotation 70°; and right rotation 70°. There was mild tenderness at the L3, L4 and L5 spinous processes. Gait was normal. He had straight leg raising to 40° bilaterally. Neurological examination of the lower limbs demonstrated equal and symmetrical reflex. Power and light touch sensation were intact. Calf circumference measured 38cm bilaterally.
Dr Wallace referred to and briefly summarised Mr Sawa’s lumbar MRI scans dated 29 June 2018 and 5 February 2019 and his bone scan dated 21 September 2018.
Dr Wallace referred to Mr Sawa having sustained a work injury on 23 October 2017. The diagnosis was one of a musculo-ligamentous strain of the lumbar spine which had resolved and an aggravation of a pre-existing mild degenerative disc disease at the L4/5 and L5/S1 levels which had resolved.
Dr Wallace reported that, in August 2018, Mr Sawa noted a recurrence of pain in his lumbar spine without a history of further injury.
Dr Wallace opined that Mr Sawa’s current spinal disability was due to pre-existing degenerative disc disease at the lumbar spine as evidenced in the MRI scan carried out in June 2018 and that his work related injury had resolved. Mr Sawa’s employment with Kings Transport was not a substantial contributing factor to any current lumbar spinal condition.
Dr Wallace opined that Mr Sawa would not benefit from the operative intervention proposed by Dr Hsu as there was no evidence that his current lumbar spinal pain was related to the lumbar spinal levels L4 to S1. There was no objective pathology at the lumbar spine which would warrant operative intervention in the form of instrumented fusion at the lumbar spine. There was no evidence of acute pathology on the available investigations. It was highly unlikely that the proposed surgery would lead to a durable reduction in the level of symptoms or increase in function at Mr Sawa’s lumbar spine. The proposed surgical intervention is not reasonably necessary in achieving a positive functional outcome. A lumbar spinal fusion has a very poor prognosis in the landscape of a workers compensation claim. According to the current medical literature, Mr Sawa would have a 3% chance of returning to pre-injury duties some two years following lumbar spinal fusion surgery.
Dr Peter Khong – 12 October 2022
On 12 October 2022, Mr Sawa consulted Dr Peter Khong, neurosurgeon and spine surgeon, at the request of his lawyers. In evidence, there is a report by Dr Khong dated 12 October 2022.[75]
[75] ARD at pages 51-56.
Dr Khong took a history that Mr Sawa was previously employed by Miele to install dishwashers and washing machines. The work involved a lot of heavy and repetitive manual labour including loading trucks, organising loads, carrying machines (including up and down stairs), driving and installing machines. He sustained an injury on 23 October 2017. He was in a warehouse teaching other workers how to load the machines. As he lifted the two dishwashers, the other workers pushed the machines causing him to fall backwards, landing on his back with the two dishwashers on top of him. At the time, he did not feel much pain. The next day, he had severe lower back pain and could not work. He consulted a doctor and subsequently underwent some imaging of his back. He took analgesia and underwent physiotherapy. He was off work for six months.
Mr Sawa told Dr Khong that he tried a gradual return to work. As he returned to full duties and tried to lift a machine, he re-aggravated his lower back pain. He was off work again and then went on light duties. He was eventually let go. Since then, Mr Sawa had tried some
part-time work in mechanics and later, spray-painting. He had ceased work last month.In respect of Mr Sawa’s current complaints, Dr Khong reported that he continued to complain of lower back pain, indicating bilateral paraspinal lower back pain just lateral to the midline on both sides as well as pain more laterally in the lower back. He experienced intermittent and alternating radiating pain down the posterior thighs and calves with a feeling of heat in his feet. Since the injury, he had noticed numbness in the legs when lying down and bending up. Back pain was worse with activity. There was no complaint of bladder or bowel disturbance.
Dr Khong’s diagnosis was one of a musculo-ligamentous strain and an exacerbation of degenerative changes in the lumbar spine. Dr Khong noted that an MRI scan demonstrated a small central disc herniation at L4/5 with preservation of disc space height, hydration and no significant neural compression.
Dr Khong opined that Mr Sawa’s prognosis was poor as he had experienced over five years of lower back pain and that it was likely to continue over the long-term.
Dr Khong opined that Mr Sawa’s workplace injury directly caused his lower back pain that had persisted to date. He was asymptomatic prior to 23 October 2017, working full-time with no restrictions performing his role at work which involved a lot of heavy and repetitive manual labour.
In respect of further treatment, Dr Khong opined:
“Mr Sawa’s last MRI was over 2.5 years ago. He requires a new MRI, and possibly a new bone scan as well as some dynamic lumbar spine x-rays. His previous MRI demonstrated a small central disc herniation at L4/5 with preservation of disc space height and hydration without significant neural compression. There was preservation of disc hydration and lumbar lordosis. The bone scan was normal. Based on his last MRI, the pain generator is not entirely clear. If there has been clear progression in the degenerative changes, a fusion may be reasonably necessary.”[76]
[76] ARD at page 53 at [8].
In respect of Mr Sawa’s work capacity, Dr Khong opined that he is unable to undertake his pre-injury duties and hours which required a lot of heavy manual labour. He is unable to perform heavy repetitive lifting, bending, twisting, turning, sitting or standing for prolonged periods.
In respect of alternative forms of treatment, Dr Khong suggested physiotherapy, hydrotherapy, swimming, yoga and Pilates would be of benefit. Weight loss would also be of benefit.
Dr Peter Khong – 7 June 2023
On 7 June 2023, Dr Khong provided a supplementary report at the request of his lawyers. In evidence, there is a report by Dr Khong dated 7 June 2023.[77]
[77] ARD at pages 55-56.
Mr Sawa’s lawyers provided Dr Khong with the updated MRI scan report of Mr Sawa’s lumbar spine dated 5 April 2023 and asked whether, in the light of the findings therein, the proposed fusion surgery is reasonably necessary treatment.
Dr Khong reported that he had reviewed the MRI scan dated 3 April 2023 and stated that it demonstrated a progressive degenerative disc disease at L4/5. There was a central disc herniation with an annular tear. The other disc levels looked normal. Whilst the bone scan did not demonstrate increased uptake at L4/5, this was still the likely pain generator.
In respect of the appropriateness of the proposed surgery, Dr Khong opined that fusion at L4/5 was appropriate if Mr Sawa continued to complain of significant and debilitating lower back pain. Fusion at this level aims to immobilise this presumed painful motion segment. It is likely to help with a proportion of his lower back pain.
In respect of the availability of alternative treatment and its potential effectiveness, Dr Khong opined that the alternatives included analgesia, physiotherapy, steroid injections and surgery. Mr Sawa had failed all non-operative management options to date. He had transient relief from the L4/5 epidural injection.
In respect of the cost of the proposed surgery, Dr Khong opined that the cost of a fusion at L4/5 depended on the surgical approach. It may cost about $10,000. However, he was unable to comment on theatre or anaesthetist costs.
In respect of the actual or potential effectiveness of the proposed surgery, Dr Khong opined that a fusion at L4/5 was likely to be effective in helping a proportion of Mr Sawa’s lower back pain.
In respect of whether the proposed treatment was accepted by medical experts as being appropriate and likely to be effective, Dr Khong opined that a fusion was accepted as appropriate and likely to be effective for discogenic back pain that was unresponsive to
non-operative measures.
Dr Peter Khong – 17 July 2023
On 17 July 2023, Dr Khong provided a supplementary report at the request of his lawyers. In evidence, there is a report by Dr Khong dated 17 July 2023.[78]
[78] ARD at pages 57-58.
In response to a request for clarification on specific restrictions in respect of Mr Sawa’s work hours, Dr Khong opined:
“Mr Sawa sustained his injury almost 5 years ago. He has had severe and persistent lower back pain. He stopped working completely last year. His latest MRI demonstrates progressive degenerative disc disease at L4/5. This is the likely pain generator.
Mr Sawa is unlikely to tolerate any manual labour. If he were to work completely sedentary duties, he may be able to manage 2 – 3 hours a day, 2 – 3 days a week. This will depend on the type of work and require a trial period to see if he can tolerate this. It is difficult to know how much he can tolerate. Ultimately the highest likelihood of improvement in pain and function and return to some form of employment is a fusion at L4/5.”
Dr Peter Khong – 5 September 2023
On 5 September 2023, Dr Khong provided a supplementary report at the request of his lawyers. In evidence, there is a report by Dr Khong dated 5 September 2023.[79]
[79] ARD at pages 59-62.
Dr Khong opined that Mr Sawa’s workplace accident was the direct cause of his lower back pain which had persisted to date. Prior to the accident, he was working full-time without restriction. He injured his back as a direct result of falling backwards holding two dishwashers. The mechanism of injury was entirely consistent with the lumbar spine injury.
Dr Khong opined that Mr Sawa’s employment was the main contributing factor to his lumbar spine injury as he had previously been asymptomatic and working full-time without restriction. The injury to his lumbar spine caused an exacerbation of previously asymptomatic degenerative changes in his lumbar spine. He tried to return to work but this re-aggravated his back pain. He suffered a lifting injury which caused severe lower back pain. The exacerbation is ongoing as his pain persists.
Dr Khong disagreed with Dr Wallace’s opinion that Mr Sawa’s current spinal disability was due to pre-existing degenerative disc disease alone. Mr Sawa experienced an acute exacerbation of the degenerative changes in his lumbar spine as a direct result of a workplace injury. Dr Khong opined:
“He gradually improved and was able to return to work. Whilst he resumed to pre-injury duties, he was unlikely to have ever returned to ‘normal’. With his return to work, he has experienced worsening lower back pain. His lower back pain persists as a result of his old injury, as well as due to his ongoing work. His employment remains a substantial contributing factor to his lumbar spine condition.
I do not agree that Mr Sawa would not benefit from operative intervention. Mr Sawa remains debilitated by low back pain. His new MRI demonstrates clear progression of the degenerative disc disease at L4/5. He requires a fusion at this level.”[80]
[80] ARD at page 61 at [2].
Dr Khong disagreed with Dr Wallace’s opinion that Mr Sawa’s work-related back injury had resolved. Mr Sawa had experienced a work-related back injury that caused severe lower back pain. He had never had that back pain before. He returned to work as his pain improved, only to experience worsening of his pain. The original injury predisposed him to future exacerbations of lower back pain with activity. If he had not sustained his original workplace injury, he may have never experienced significant lower back pain.
In referring to Dr Wallace’s reference to medical literature, Dr Khong noted that the literature on that topic was varied and referred to other medical literature relating to a return to work following a fusion. He was uncertain as to where Dr Wallace had obtained the figure of a 3% chance of returning to pre-injury duties some two years following lumbar spinal fusion surgery.
Dr Khong disagreed with Dr Wallace’s opinion that there was no objective pathology in the lumbar spine which would warrant operative intervention in the form of instrumented fusion at the lumbar spine and in this regard opined:
“There is clear degenerative disc disease at L4/5 on the most recent MRI. There has been significant deterioration of this disc since his last MRI. Dr Wallace’s report was from 2019. The new MRI is from 2023 and he did not have the benefit of seeing this latest MRI.”[81]
[81] ARD at page 61 at [5].
Dr Khong made the following concluding comment:
“Mr Sawa sustained his original injury in 2017. He attempted a return to work but his pain worsened. It has now been almost 5 years since his injury. His latest MRI demonstrates significant deterioration of the L4/5 disc space. This is the likely pain generator. He has exhausted all non-operative management options. A fusion at this level is both reasonable and necessary to help with a proportion of his lower back pain.”[82]
[82] ARD at page 62 at [6].
SUBMISSIONS
The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties. The parties’ submissions are outlined below.
Kings Transport’s submissions
Kings Transport’s case is that Mr Sawa’s claim for surgery falls short of the requisite standard of proof.
There are a number of holes in the medical evidence that do not match Mr Sawa’s own evidentiary statement in terms of causation. These question marks and holes in the medical evidence are fatal to Mr Sawa’s case. It is not for Kings Transport or its doctors to provide the answers or some sort of alternative. Mr Sawa bears the onus.
Mr Sawa will likely fairly submit that Kings Transport’s medical case is deficient and that may well be so because of the age of Dr Wallace’s report. However, Kings Transport does not bear the onus.
Sometime following the injury to his lumbar spine on 23 October 2017, Mr Sawa returned to work on light duties. Later, he was certified fit to resume his pre-injury duties.
Prior to the alleged aggravation to Mr Sawa’s lumbar spine on 25 January 2019, he had returned to normal duties. He had consulted Dr Hsu, who recommended conservative treatment only. The incident on 25 January 2019, was the first significant post-accident event over which there are question marks.
Dr Wallace opined that Mr Sawa had recovered from the injury to his lumbar spine on 23 October 2017. The fact that Mr Sawa returned to his pre-injury duties supported that opinion. Mr Sawa was well enough to lift a washing machine. Mr Sawa referred to what happened on 25 January 2019 as an aggravation. However, he was doing something that was clearly traumatic and amounted to a separate injury. It may well have been to the same part of the body but this injury was at L4 and that is significant. It is something that Mr Sawa’s doctors did not seriously engage with.
After the 25 January 2019 incident, Dr Hsu changed his mind about conservative treatment and opined that Mr Sawa now needed surgery. The question that is begging and not answered is, why? The answer is that he was back at normal duties and lifted a washing machine. The incident on 23 October 2017 is not the reason why. He needs this surgery because he lifted the washing machine on 25 January 2019. Dr Hsu did not engage with this question and that is fatal to Mr Sawa’s case in terms of discharging his onus. Dr Hsu did not explain why Mr Sawa now required an anterior and posterior interbody fusion from L4 to S1.
Then, the other events referred to below occurred.
Mr Sawa tried part-time work in mechanics and spray painting with difficulty. It is not known what type of work he did in mechanics. Mr Sawa’s description of spray painting as light duties is difficult to understand given quasi-judicial notice about what spray painting jobs involve. Later in his evidentiary statement, Mr Sawa did try to explain the work he performed.
Mr Sawa’s work with Intense Paint and Panel involved something of a physical nature in managing paint and panel beating materials. Mr Sawa did not explain what was involved in these activities in his evidentiary statement. When it comes to the issue of causation, the doctors should have known something about this work. It is not considered in any of the medical evidence. He had been doing this work at Intense Paint and Panel for just over one year. Mr Sawa stated that he ceased that employment because his employer was not processing payments properly. There was nothing of a physical nature that stopped him from working.
On 19 February 2023, Mr Sawa commenced employment with Outer West Smash Repairs and Restorations working 24 hours per week. The light duties referred to in his evidentiary statement included cleaning, painting, panel beating and operating a forklift, all of which have elements of physical work which can aggravate a back. However, Mr Sawa did not provide details of these duties. Further, he did not tell his doctors. These were questions that needed to be answered, especially when it comes to causation and in light of the delay in treatment and medical scanning.
Dr Hsu’s report dated 4 June 2020 did not refer to the incident on 25 January 2019. It is not known whether Dr Hsu was aware of the incident on 25 January 2019. Dr Hsu does not say what effect, if any, the incident had on the need for surgery in his report.
Dr Hsu’s report dated 27 April 2021, did not refer to the incident on 25 January 2019. He referred to the cause of Mr Sawa’s condition as being “the incident”, which one can safely assume referred to the incident at work on 23 October 2017. This is fatal to Mr Sawa’s case. Dr Hsu who is to carry out the proposed surgery, on the evidence, does not consider one important part of the puzzle, namely, the incident on 25 January 2019. It is a critical factor for consideration in terms of causation. The lifting of the washing machine on 25 January 2019 was clearly a traumatic incident.
Dr van Gelder’s report date 15 September 2022 raises more questions than he answers. The history taken by Dr van Gelder is clearly only in relation to the 2017 incident. He did not take a history of the alleged aggravation on 25 January 2019. Dr van Gelder opined that the February 2019 MRI scan was essentially normal. Importantly, Dr van Gelder, an eminent neurosurgeon, was saying to Mr Sawa that he should not have the proposed surgery.
In his report dated 12 October 2022, Dr Khong took a history of the 2017 incident. He then reported that Mr Sawa tried a gradual return to work. As he returned to full duties and tried to lift a machine, he re-aggravated his lower back pain. Kings Transport submitted that the return to full duties was consistent with Dr Wallace, in that, Mr Sawa had recovered. He lifted a washing machine, which again, was consistent with having recovered but sustained a new injury caused by the lifting incident.
In his report dated 7 June 2023, Dr Khong referred to the updated MRI scan dated 5 April 2023, which he said demonstrated progressive degenerative disc disease at L4/5 and a central disc herniation with an annular tear. It was clear that something had happened since February 2019. Mr Sawa ceased his employment with Kings Transport in October 2019. Dr Khong did not consider what Mr Sawa had been doing as a part-time mechanic or part-time spray painter.
In his report dated 5 September 2023 when asked about causation, Dr Khong referred only to the incident on 23 October 2017 and that was a fundamental flaw in his opinion.
The pathology identified at Mr Sawa’s L4/5 on the MRI scan dated 5 April 2023 is not significant pathology. It is very discrete and mild pathology. The L5/S1 is normal.
Dr Hsu initially recommended a series of non-operative treatment. It is not known what, if any, non-operative treatment Mr Sawa underwent since the revelation of the pathology at L4/5 in the MRI scan dated 5 April 2023. If such pathology was considered by Dr Khong to be so important as to justify surgery, then why were not more non-operative modes of treatment provided for this more specific minimal pathology? The proposed surgery is significant and these were matters that ought to have been dealt with in Mr Sawa’s medical evidence.
Dr Hsu provided his estimate of fees for the proposed surgery on 23 July 2019. There was no evidence from Dr Hsu after his report dated 27 April 2021. In September 2022, Dr van Gelder reported that he would not proceed with the proposed surgery. There is nothing from a treating specialist who wants to perform surgery since 27 April 2021. That would cause great concern to the Commission as to what, if anything, Dr Hsu says now. It is not known what Dr Hsu says about the most recent MRI scan dated 5 April 2023 or whether he would still want to perform the proposed surgery.
Dr Wallace’s opinion was correct as at the date of his report. Dr Wallace focused on the 23 October 2017 incident. He did not have the outcome of the MRI scan dated 5 April 2023. However, Kings Transport does not bear the onus, Mr Sawa does. The Commission would not be satisfied that, on the evidence, Mr Sawa has discharged the onus.
Mr Sawa’s submissions
Much of Kings Transport’s submissions were made without medical evidence. There was no opinion supporting Mr Sawa having suffered a separate injury. There was no opinion supporting an aggravation due to subsequent work with other employers. There was no qualified expert opinion dealing with subsequent pathology. There was no qualified expert opinion dealing with Dr Khong’s opinions. If all these things were so important, Kings Transport would have asked for a medical opinion to support their submissions in this regard.
Dr Wallace’s report does not acknowledge any treating medical evidence to support his opinion. The history taken by Dr Wallace is totally inconsistent with his ultimate opinion that there had been a resolution of Mr Sawa’s injury. The resolution of the injury was not supported by the history that he returned to work but had difficulty walking and driving due to back pain. It was not supported by the fact that he did continue with physiotherapy for, at least, five months thereafter. It was not supported by the history that he subsequently noted ongoing lumbar spinal pain and had difficulty with heavy lifting tasks.
The present complaints recorded by Dr Wallace were not consistent with the opinion that Mr Sawa’s condition had resolved. The current activities recorded by Dr Wallace were also not consistent with the opinion that Mr Sawa’s condition had resolved. The findings on Dr Wallace’s clinical examination of Mr Sawa did not support a resolution of his condition.
Dr Wallace did not provide any reasons as to why his diagnosis of a musculo-ligamentous strain to Mr Sawa’s lumbar spine and an aggravation of a pre-existing mild degenerative disc disease at the L4/5 and L5/S1 levels had resolved in light of the history taken, his current complaints, his current activities and the findings on examination.
Dr Wallace appeared to have based his opinion that resolution had occurred because Mr Sawa was able to resume his pre-injury duties at work from March 2018.
Mr Sawa’s back condition never resolved. The evidence relied on by Kings Transport indicates that it never resolved.
Whilst Mr Sawa did return to pre-injury duties, he clearly had ongoing symptomatology, treatment and aggravations.
Whilst the certificate of capacity dated 27 March 2018 certified Mr Sawa fit for pre-injury duties from 28 March 2018, it continued to advise analgesia, rest and the need for ongoing physiotherapy and active exercise to increase strength. The detail in the certificate did not support Dr Wallace’s proposition of recovery.
On 23 April 2018, Mr Nelson referred to Mr Sawa as recovering, not recovered, from an upper and lower back strain. He noted that Mr Sawa reported resolving right-sided mid-lower back pain. He was performing all duties with minimal aggravation of his pain and was keen to continue with pre-injury duties. Mr Nelson stated that he would continue to review Mr Sawa and supervise his home exercise program for prevention purposes.
On 2 May 2018, the Recovery Partners closure report noted that Mr Sawa had advised of not experiencing any significant issues with his pre-injury duties, although he had, on occasion, been required to perform some challenging deliveries requiring carrying washing machines up a large number of steps which produced some mild back pain. Mr Sawa was advised to continue with maintenance physiotherapy sessions weekly for the next few weeks to minimise the risk of re-injury.
So, there was a continuation of Mr Sawa’s treatment and of his aggravations despite being certified fit for pre-injury duties. This did not support Dr Wallace’s proposition of recovery from injury.
On 18 June 2018, Dr Paw noted that Mr Sawa still had back pain on and off and also some sciatica symptoms, S1 on the left. On 2 August 2018, Dr Paw noted Mr Sawa reporting an ongoing flare-up of back pain and referred him to a neurosurgeon (Dr Hsu) and rehabilitation specialist, if needed. These entries and the entries that followed in Mr Sawa’s Dundas Valley Medical Centre clinical records did not support Dr Wallace’s proposition of recovery from injury but were consistent with a continuation of the original injury. It was also consistent with Mr Sawa’s evidentiary statement and consistent with what Dr Wallace recorded as ongoing problems with lifting.
On 2 November 2018, Dr Hsu opined that Mr Sawa’s pathology was likely confined to the intervertebral discs and more related to the annular tear and disc bulges and arranged for him to undergo a trial of L5-S1 epidural steroid injections.
On 7 January 2019, Mr Nelson’s report supported the ongoing difficulties Mr Sawa was experiencing despite having returned to work.
On 18 January 2019, following the L5-S1 epidural steroid injection into Mr Sawa’s lumbar spine, Dr Hsu opined that his symptoms were suggestive of more than one disc being involved because the L5-S1 injection did not completely resolve all his pain. He recommended an updated MRI scan.
However, then came the incident on 25 January 2019. Mr Sawa relied on the second category of injury referred to in The State Government Insurance Commission v Oakley[83] (Oakley) in situations where an earlier injury is followed by a later injury. That is, where a further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health but the damage sustained is greater because of the aggravation of the earlier injury, the additional damage resulting from the aggravation injury should be treated as caused by the defendant’s negligence, that is, caused by the original injury. Dr Khong’s opinion supports this Oakley category of injury.
[83] The State Government Insurance Commission v Oakley (1990) Aust Torts Rep 81-003.
Irrespective of there being a subsequent aggravation, Kings Transport has no evidence to suggest that liability attaches to that subsequent aggravation. However, in accordance with the Oakley principle, it would attach to the original injury anyway.
In his report dated 25 September 2019, Dr Wallace sought to minimise and made no reference to the L4/5 level in the MRI scan of the lumbar spine dated 5 February 2019 when he provided a summary of the scan.
In his report dated 4 March 2019, Dr Hsu stated that the MRI scan dated 5 February 2019 confirmed that there was also L4/5 disc pathology as well and that this would explain Mr Sawa’s further symptoms despite an apparently successful L5/S1 injection. He recommended and L4/5 epidural injection. In his report dated 16 May 2019, Dr Hsu noted that the L4/5 epidural injection had provided temporary relief but not solved all of Mr Sawa’s back and leg problems. In those reports, Dr Hsu commented on the pathology, the MRI scan and related them to Mr Sawa’s symptoms. The outcome of injections confirmed the recommended surgery.
Mr Sawa’s clinical records from the Advance Health Medical Centre confirmed ongoing lower back pain radiating into the legs and physiotherapy from the date of his first attendance on 23 August 2019.
It was quite clear from the evidence referred to above that the chain of causation was never broken and there was no recovery.
In his report dated 4 June 2020, Dr Hsu stated that Mr Sawa’s indications for surgery were clearly the failure of non-operative treatment. In his report dated 23 February 2021, Dr Hsu stated that Mr Sawa had experienced back and leg pain since October 2017 after two dishwashers fell on him at work. He opined that Mr Sawa’s significant lumbar back pain and lower limb symptoms were due to the L4/5 and L5/S1 disc bulging as seen in the MRI scan and recommended surgery.
On 15 September 2022, Dr van Gelder provided a mixed opinion as to whether the surgery should occur. However, that opinion was provided prior to the most recent MRI scan.
The findings in Mr Sawa’s MRI scan dated 5 April 2023 demonstrated significant pathology indenting the thecal sac and displacing the L5 nerve root.
I find that Mr Sawa did his best to provide a history of his injuries, his treatment and his complaints of symptoms to his treating doctors and the forensic medical specialists, which were, in the main, consistent.
I accept Mr Sawa’s unchallenged evidence that, on 23 October 2017 whilst in the process of loading dishwashers on a trolley onto a truck in the course of his employment, two contractors working with him pushed the top dishwasher towards him whilst he was pulling the trolley, which caused him to lose his balance and fall backwards on his back with the two dishwashers and trolley landing on top of him. Mr Sawa told Dr Wallace that the dishwashers weighed 65kg each. I accept Mr Sawa’s unchallenged evidence that, at the time, he felt immediate pain in his lower back and right shoulder and that the pain became progressively worse during the rest of the working day. I accept his evidence that the following morning he experienced excruciating pain in his lower back.
I accept Mr Sawa’s unchallenged evidence that he was off work for an unspecified short period of time before Dr Paw certified him fit for light duties and that he returned to work with Kings Transport on such duties, which included office work or occasionally driving the truck but no lifting, pushing, or pulling of items.
I accept Mr Sawa’s unchallenged evidence that, whilst on light duties, his back pain fluctuated in severity and that he reported his pains and complaints to his manager, who was not able to provide him with lighter duties and so, he continued to push himself to work whilst in pain, which caused increasing pain in his back and legs. There was no evidence from Mr Sawa’s manager to challenge Mr Sawa’s evidence in this regard. There is no dispute that, after a few weeks on light duties, Dr Paw continued to increase Mr Sawa’s lifting capacity over time.
On 26 February 2018, Dr Paw recommended ongoing physiotherapy.
On 27 March 2018, Mr Sawa consulted Dr Paw, who recorded that Mr Sawa could return to full duties on a trial basis with his lifting limit increased up to 25kg with the proviso that he be reviewed if needed at any time.
On 11 April 2018, Dr Zhao noted that Mr Sawa had trialled pre-injury duties for two weeks and was handling most jobs fine. However, intermittently he had heavy jobs that caused unstable footing. The doctor noted that Mr Sawa was still a bit anxious about a recurrence of his back injury. Dr Zhao recommended that he continue on the trial of pre-injury duties for another two weeks.
On 23 April 2018, Mr Nelson reported that Mr Sawa had performed full pre-injury duties in the past month with minimal aggravation of his pain and that he was keen to continue with pre-injury duties. Mr Nelson also reported that he would continue to review Mr Sawa and supervise his home exercise program for prevention purposes.
On 24 April 2018, Dr Paw recommended that Mr Sawa continue physiotherapy for about one month and issued him with a final certificate of capacity certifying him fit for pre-injury duties. However, the doctor commented that Mr Sawa required ongoing physiotherapy and active exercise to increase strength.
On 2 May 2018, Ms Natalie Mizzau of Recovery Partners reported that Mr Sawa had not experienced any significant issues with his pre-injury duties. However, on occasion, he had been required to perform some challenging deliveries requiring carrying washing machines up a large number of steps, which produced some mild back pain.
It is clear on the evidence that, before Mr Sawa returned to his pre-injury duties, his lower back pain had continued to fluctuate in severity and contrary to the opinion of Dr Wallace, he had not fully recovered from the incident at work on 23 October 2017 by the time of his return to those duties. At the time he returned to his pre-injury duties, Mr Sawa was consulting his general practitioner, taking pain relieving medication when required, undergoing physiotherapy, undertaking home-based exercises and consulting the GIO appointed rehabilitation consultant.
On 18 June 2018, Dr Paw recorded that Mr Sawa still experienced pain “on and off”. There were also some symptoms of sciatica (radiculopathy S1 on the left). He referred Mr Sawa for an MRI scan of his lumbar spine and advised him to continue with physiotherapy.
The MRI scan of Mr Sawa’s lumbar spine on 29 June 2018 demonstrated minimal disc protrusions at L4/5 and L5/S1. Dr Paw recommended that Mr Sawa continue on his current management and take Celebrex, when required.
On 2 August 2018, Mr Sawa consulted Dr Paw, who recorded Mr Sawa complaining of an ongoing flare-up of back pain. He referred Mr Sawa to Dr Hsu and noted that referral to a rehabilitation specialist may be required.
On 5 September 2018, Dr Hsu reported that Mr Sawa’s lumbar back pain and lower limb symptoms may be related to the L4/5 and L5/S1 disc bulging as seen on the MRI scan dated 29 June 2018. He arranged for Mr Sawa to undergo a lumbar spine bone scan to assess for any occult pathology. Mr Sawa underwent a whole body scan including a SPECT/CT of his lumbosacral spine on 21 September 2018 and a normal study was reported.
On 2 November 2018, after reviewing the normal whole body scan, Dr Hsu opined that this suggested that Mr Sawa’s pathology was likely confined to the intervertebral discs and more related to the annular tear and disc bulges. He arranged for Mr Sawa to undergo a trial of
L5-S1 epidural steroid injections as the next step in his treatment.On 28 November 2018, Dr Chong recorded that Mr Sawa’s back pain was getting worse and that, even when he was not carrying anything but just bending over, his back played up. Mr Sawa reported intermittent pain down both legs.
On 7 January 2019, Mr Nelson reported that Mr Sawa had complained to him of pain after long shifts at work or when lifting heavy loads up multiple sets of staircases. Mr Nelson reported that Mr Sawa had regularly complained of minor flare-ups that he had, mostly, self-managed. However, Mr Nelson questioned the longevity of Mr Sawa in his current position working full duties, in that, the repetitive and sustained loads may be too much for his capacity in the future. Mr Nelson’s concern in this regard turned out to be justified.
On 18 January 2019, Dr Hsu reported that the L5-S1 epidural steroid injection undergone by Mr Sawa on 17 January 2019 only provided some relief during the anaesthetic phase but that did provide some diagnostic information. Dr Hsu opined that Mr Sawa’s symptoms were suggestive of more than one disc being involved as the L5-S1 injection did not completely resolve all his pain. He recommended that Mr Sawa undergo an updated MRI scan so that he could plan to proceed with other injections or treatment options, depending on the findings.
It is clear on the evidence that, after Mr Sawa returned to his pre-injury duties, his lower back pain continued to fluctuate in severity and contrary to the opinion of Dr Wallace, he had not fully recovered from the injury at work on 23 October 2017 by the time of the incident on 25 January 2019.
The unchallenged evidence is that, on 25 January 2019, Mr Sawa again felt pressure in his back with some shooting pain down the legs bilaterally trying to get past a doorway whilst carrying a washing machine.
Whilst, on 25 January 2019, Dr Chong took a history that Mr Sawa reported re-injuring his back that day carrying a washing machine whilst trying to get past a doorway, no such specific history was recorded in the clinical records or reports of Dr Hsu. On 10 March 2020, Dr Hsu did report that Mr Sawa’s symptoms were due to the repetitive and heavy nature of his work and the work-related incident on 23 October 2017. Dr van Gelder, who Mr Sawa consulted for a second opinion on 13 September 2022, only took a brief history of the incident on 23 October 2017 and made no reference to the 25 January 2019 incident. Dr Wallace made no reference to the 25 January 2019 incident in his report. In his report dated 12 October 2022, Dr Khong took a history of the 23 October 2017 incident and of a
re-aggravation of Mr Sawa’s back pain after returning to full duties when he tried to lift a machine. There was no reference to the date of the “re-aggravation” incident.The incident itself on 25 January 2019 is not disputed. However, Kings Transport disputed the nature of the incident as set out in its submissions above.
The unchallenged evidence of Mr Sawa is that he reported the 25 January 2019 incident to his team leader and his manager. He attended work the next day but experienced extreme difficulty walking. Mr Sawa’s employer directed him to consult Dr Paw. Dr Paw again placed him on light duties until his employment was terminated in October 2019. There was no evidence from Kings Transport challenging Mr Sawa’s evidence in this regard.
On 5 February 2019, Mr Sawa underwent an MRI scan of his lumbar spine that demonstrated an L4/5 central broad-based protrusion with minimal contact of bilateral descending L5 nerve roots, mildly worse on the left and a minimal diffuse disc bulge at L5/S1 without significant foraminal narrowing or evidence of nerve root impingement.
On 4 March 2019, Dr Hsu reported that the MRI scan confirmed that there was also L4/5 disc pathology and that this explained his further symptoms despite an apparently successful L5/S1 injection. He recommended a trial of an L4/5 epidural injection as the next step in Mr Sawa’s non-operative treatment. Mr Sawa underwent an L4/5 epidural steroid injection on 9 May 2019.
On 16 May 2019, Dr Hsu reported that the L4/5 epidural steroid injection had given Mr Sawa some temporary relief but did not solve all his back and leg problems. They discussed management options being, proceed with chronic pain management and further
non-operative treatment or surgery. Dr Hsu recommended that they proceed with a further course of physiotherapy and exercise therapy and, depending on how Mr Sawa responded, he would review him again in two to three months’ time.On 18 July 2019, Dr Hsu reported that Mr Sawa had consulted him on 9 May 2019 regarding his continued non-operative treatment for significant back pain. He noted that Mr Sawa did not consider chronic pain management as an option but had decided to proceed with surgical intervention in the form of an L4 to S1 anterior and posterior decompression and fusion. Dr Hsu reported that he would seek approval from the insurer to proceed with the proposed surgery. Such approval was not provided by GIO.
It is clear on the evidence that, after the incident on 25 January 2019, Mr Sawa continued to consult his treating doctors complaining of ongoing significant worsening lower back pain and lower limb symptoms. He underwent physiotherapy. He undertook home-based exercises and exercise therapy. He commenced psychological counselling. He underwent spinal injections. According to Dr Hsu, he also underwent chronic pain management.
Mr Sawa, to his credit, sought suitable part-time work after he was made redundant by Kings Transport. The unchallenged evidence is that he obtained part-time work performing the duties he described in his statement with Intense Paint and Panel, Outer West Smash Repairs and Restorations and ALT Luxury Travel Pty Ltd as a coach driver. There was no expert opinion in Kings Transport’s case supporting Mr Sawa having suffered a separate injury on 25 January 2019. There was no expert opinion in Kings Transport’s case supporting an aggravation or separate injury due to subsequent work with other employers. There was no other evidence that Mr Sawa had sustained an aggravation or separate injury whilst employed by Intense Paint and Panel, Outer West Smash Repairs and Restorations and ALT Luxury Travel Pty Ltd.
On 5 April 2023, Mr Sawa underwent an MRI scan of his lumbar spine which demonstrated that the L4/5 disc was desiccated and narrow. There was a mild postero-central disc protrusion associated with an annular tear which was minimally indenting the anterior aspect of the thecal sac but not causing significant canal stenosis. It was slightly eccentric to the left and was mildly displacing the left L5 nerve root in the lateral recess at L4/5. The L5/S1 disc defined normally and the foramina were of reasonable size.
Dr Hsu’s diagnosis both before and after the 25 January 2019 incident was one of L4/5 and L5/S1 intervertebral disc pathology. In his opinion, the pathology was confined to the intervertebral discs and more related to the annular tear and disc bulges. On the available evidence, Dr Hsu did not appear to have had the benefit of reviewing the 5 April 2023 MRI scan, which reported that the L5/S1 disc defined normally. Whilst it would have been helpful to have had Dr Hsu’s opinion in respect of the most recent MRI scan, it was not fatal to Mr Sawa’s case. Dr Hsu did have the benefit of knowing the outcomes of Mr Sawa’s L5-S1 and L4/5 epidural steroid injections on which to form his opinion as to the pathology and to causally relate Mr Sawa’s condition to the work-related incident on 23 October 2017. Dr Hsu also acknowledged the repetitive and heavy nature of his work with Kings Transport. Dr Hsu was Mr Sawa’s treating spine surgeon and as such was focused on treatment. Accordingly, his failure to refer to or enquire about any other post Kings Transport employment was not unusual.
Dr Wallace’s report dated 25 September 2019 is now somewhat outdated. Dr Wallace stated that he had read his letter of instructions and the attached documentation. However, those documents were not identified. In his report, he did not refer to any general practitioner clinical records or to any reports from Dr Hsu. He did identify and briefly summarise the MRI investigations on 29 June 2018 and 5 February 2019 and the outcome of the bone scan on 21 September 2018. Dr Wallace’s history did not include the incident on 25 January 2019.
Dr Wallace opined that Mr Sawa’s lower back injury, namely, a musculo-ligamentous strain of the lumbar spine and an aggravation of a pre-existing mild degenerative disc disease at the L4/5 and L5/S1 levels would have settled within three months of the 23 October 2017 incident. He further opined that Mr Sawa’s current spinal disability was due to pre-existing degenerative disc disease at the lumbar spine as evidenced in the 29 June 2018 MRI scan.
I find Dr Wallace’s opinion in this regard unpersuasive and give it little weight. The opinion amounted to a bare ipse dixit. Dr Wallace failed to satisfactorily demonstrate his path of reasoning in reaching his opinion. He seemingly failed to appreciate that Mr Sawa had undergone two spinal injections, that is, the L5-S1 and L4/5 epidural steroid injections, as he only referred to one injection. The failure to satisfactorily demonstrate his path of reasoning was particularly relevant in view of the findings that, both before and after Mr Sawa returned to his pre-injury duties, his lower back pain continued to fluctuate in severity and that, after the incident on 25 January 2019, he continued to consult his treating doctors complaining of ongoing significant worsening lower back pain and lower limb symptoms; underwent physiotherapy; undertook home-based exercises and exercise therapy; commenced psychological counselling; underwent chronic pain management; and underwent spinal injections.
Mr Sawa consulted Dr Khong on one occasion, namely, 12 October 2022. Thereafter, he provided three supplementary reports.
On 12 October 2022, Dr Khong took a history of the 23 October 2017 incident and of a
re-aggravation of Mr Sawa’s back pain after returning to full duties when he tried to lift a machine. There was no reference to the date of the “re-aggravation” incident but the timing and description satisfy me that he was referring to the 25 January 2019 incident.On 12 October 2022, Dr Khong’s diagnosis was one of a musculo-ligamentous strain and an exacerbation of degenerative changes in the lumbar spine. He also opined that Mr Sawa’s workplace injury directly caused his lower back pain that had persisted to date. He was asymptomatic prior to 23 October 2017, working full-time with no restrictions performing his role at work which involved a lot of heavy and repetitive manual labour. At the time of the consultation on 12 October 2022, Dr Khong was aware that, since being retrenched by Kings Transport, Mr Sawa had tried some part-time work in mechanics and later, spray-painting.
In his supplementary report dated 5 September 2023, Dr Khong repeated his opinion as to diagnosis and causation and added that the mechanism of injury was entirely consistent with the injury to Mr Sawa’s lumbar spine on 23 October 2017. He opined that on his return to work he re-aggravated his back pain and suffered a lifting injury which caused severe lower back pain and that the exacerbation is ongoing as evidenced by his persisting pain.
Dr Khong disagreed with Dr Wallace’s opinion that Mr Sawa’s work-related back injury had resolved and explained that the original injury predisposed him to future exacerbations of lower back pain with activity. If he had not sustained his original workplace injury, he may have never experienced significant lower back pain (Oakley category 2).
On the issue of injury, I prefer the opinions of Dr Hsu and Dr Khong over that of Dr Wallace for the reasons stated above.
I am satisfied on the balance of probabilities, to a degree of actual persuasion or affirmative satisfaction, that Mr Sawa has established that he sustained an injury within the meaning of s 4(a) of the 1987 Act in the form of a musculo-ligamentous strain and an exacerbation of degenerative changes in the lumbar spine arising out of or in the course of his employment with Kings Transport on 23 October 2017 and that his symptoms in respect of such injury have persisted.
I find that, on the balance of probabilities, the incident on 25 January 2019 did not break the chain of causation. Mr Sawa had not fully recovered from the injury sustained on 23 October 2017 for the reasons stated above. Further, the pathology was in the same area of the lumbar spine and on the most recent MRI scan, the degenerative disc disease, particularly at L4/5, had significantly deteriorated since the earlier MRI scans. I am satisfied and find that Mr Sawa’s injury falls within Oakley category 2, that is, where an earlier injury is exacerbated by a subsequent injury, there will be a causal connection between the original injury and the subsequent damage unless it can be shown that some part of the subsequent damage would have been occasioned even if the original injury had not occurred. This finding is supported in the expert opinion of Dr Khong.
The proposed surgery
The legislation and legal principles
Section 60(1) of the 1987 Act relevantly provides that, if as a result of an injury received by a worker, it is reasonably necessary that any medical or related treatment be given, the worker’s employer is liable to pay, in addition to any other compensation under the Act, the cost of that treatment or service.
Section 60(5) of the 1987 Act relevantly provides the Commission with jurisdiction to determine a dispute concerning any proposed treatment or service and the compensation that will be payable under s 60 of the 1987 Act in respect of any such proposed treatment or service. In this case, the proposed treatment is the two stage surgery, namely, an L4-S1 anterior lumbar interbody fusion (stage 1) and L4-S1 decompression and fusion (stage 2) proposed by Dr Hsu.
There are two elements to s 60(1) of the 1987 Act that must be considered. The first element is “as a result of an injury received by a worker”. The second element is that of “reasonably necessary” treatment.
Dealing with the first element, namely, “as a result of injury received by a worker”, I am required to conduct a common sense evaluation of the causal chain to determine whether the surgery proposed by Dr Hsu is reasonably necessary treatment as a result of the injury sustained by Mr Sawa on 23 October 2017 within the meaning of s 60 of the 1987 Act.
The issue of causation must be based and determined on the facts in each case and requires a common sense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates[120] (Kooragang). As I understand it, when referring to applying “common sense”, Kirby, P in Kooragang was not suggesting that it be applied “at large” or that issues were to be determined by “common sense” alone but by a careful analysis of the evidence, including a careful analysis of the expert evidence: Kirunda v State of New South Wales (No 4)[121] (Kirunda). The legislation must be interpreted by reference to the terms of the statute and its context in a fashion that best effects its purpose.
[120] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796.
[121] Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45 at [136].
Murphy v Allity Management Services Pty Ltd[122] referred to Kooragang and is authority for the proposition that an injured worker must establish that the injury materially contributed to the need for the treatment or the surgery. The need for surgery can arise from multiple causes. The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act. Mr Sawa only has to establish, applying the common sense test of causation, that the treatment is reasonably necessary “as a result of” the injury. That is, he has to establish that the injury materially contributed to the need for the surgery.
[122] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
Turning to the “reasonably necessary” element, Roche DP in Diab v NRMA Ltd[123] (Diab) set out the “standard” test adopted for determining if medical treatment is reasonably necessary in Rose v Health Commission (NSW)[124] (Rose) and he noted subsequent appellate authority with respect to the use of the words “reasonably necessary”.
[123] Diab v NRMA Ltd [2014] NSWWCCPD 72.
[124] Rose v Health Commission (NSW) (1986) 2 NSWCCR 32.
Roche DP’s observations in Diab of the words “reasonably necessary”, after noting the appellate authority, may be summarised as follows:
(a) reasonably necessary does not mean “absolutely necessary”;
(b) depending on the circumstances, a range of different treatments may qualify as “reasonably necessary” and a worker only has to establish that the treatment claimed is one of those treatments;
(c) the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ in Rose:
(i)the appropriateness of the particular treatment;
(ii)the availability of alternative treatment, and its potential effectiveness;
(iii)the cost of the treatment;
(iv)the actual or potential effectiveness of the treatment, and
(v)the acceptance by medical experts of the treatment as being appropriate and likely to be effective;
(d) in respect of the criteria referred to in (c)(iv) above, while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative as the evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost;
(e) 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, and
(f) while the above matters are useful heads for consideration, the essential question remains whether the treatment was reasonably necessary and as always, each case will depend on its facts.
Consideration and findings
On 25 September 2019, Dr Wallace opined that Mr Sawa would not benefit from the operative intervention proposed by Dr Hsu as there was no evidence that his current lumbar spinal pain was related to the lumbar spinal levels L4 to S1. He opined that there was no objective pathology at the lumbar spine which would warrant operative intervention in the form of instrumented fusion at the lumbar spine and there was no evidence of acute pathology on the available investigations. It was highly unlikely that the proposed surgery would lead to a durable reduction in the level of symptoms or increase in function at Mr Sawa’s lumbar spine. Dr Wallace concluded that the proposed surgical intervention is not reasonably necessary in achieving a positive functional outcome.
However, Dr Wallace did not engage with the outcomes of the L5-S1 and L4/5 epidural steroid injections and Dr Hsu’s opinion in that regard. Further, he was not provided with the opportunity to consider Dr Hsu’s report dated 27 April 2021 and Dr Khong’s supplementary report dated 5 September 2023. It is for these reasons and those previously expressed in the findings on injury that I give little weight to Dr Wallace’s expert evidence.
On 15 September 2022, Dr James van Gelder noted that, contrary to the opinion of Dr Hsu, the MRI scan on 5 February 2019 was essentially normal. Dr van Gelder opined that Mr Sawa did not have deformity, instability, nerve compression or any red flag condition that would make an indication for surgical treatment. He stated that most surgeons would not offer Mr Sawa surgery for subtle disc bulging for an injured worker with non-specific low back pain. Further, he stated that it was not possible to be confident, which was the symptomatic level in his lumbar spine and surgery would potentially exacerbate symptoms on the other levels in his lumbar spine. However, he then stated that, as Mr Sawa was motivated to undergo the surgery proposed, he should proceed.
Dr van Gelder did not engage with the outcomes of the L5-S1 and L4/5 epidural steroid injections and Dr Hsu’s opinion in that regard. Those outcomes satisfied Dr Hsu that he had found the symptomatic levels of Mr Sawa’s lumbar spine. Dr van Gelder did not have the opportunity to consider Dr Khong’s supplementary report dated 5 September 2023. Nevertheless, he did say Mr Sawa should proceed with the proposed surgery.
In his supplementary report dated 7 June 2023, Dr Khong, having reviewed the MRI scan dated 3 April 2023, opined that the L4/5 level was still the likely pain generator and that a fusion at that level was appropriate in circumstances where Mr Sawa experienced ongoing significant and debilitating discogenic back pain that had been unresponsive to non-operative measures. He also opined that a fusion at L4/5 was likely to be effective in helping a proportion of Mr Sawa’s lower back pain. Dr Khong noted that Mr Sawa had failed all
non-operative management options to date and had experienced transient relief from the L4/5 epidural steroid injection. However, he did not engage with the outcome of the L5/S1 epidural injection or Dr Hsu’s opinion that the outcomes of the injections at both levels satisfied him that the symptomatic levels of Mr Sawa’s lumbar spine were at L4/5 and L5/S1. Dr Khong formed the view that the L4/5 level was the likely pain generator in his first report dated 12 October 2022, that is, prior to having seen the MRI scan dated 5 April 2023 and having considered the MRI scan dated 29 June 2018. Dr Khong did not attribute any significance to the finding of a minimal central disc protrusion at L5/S1, whereas Dr Hsu did.Medicine is not an exact science. It is not uncommon for doctors to disagree on the proposed treatment of a patient. Dr Hsu proposed an L4-S1 anterior lumbar interbody fusion and L4-S1 decompression and fusion as being reasonably necessary surgery as a result of the injury on 23 October 2017. Dr Khong proposed a fusion at L4/5.
Dr Hsu, as the treating spinal surgeon, examined Mr Sawa on a number of occasions, although not recently. Mr Sawa only consulted Dr Wallace, Dr van Gelder and Dr Khong on one occasion. I find that Dr Hsu was better placed to provide an opinion in respect of the proposed surgery. Whilst he was not provided the opportunity to consider the MRI scan dated 5 April 2023, he did consider the MRI scan dated 29 June 2018 and the outcomes of the L5-S1 and L4/5 epidural steroid injections and concluded that the symptomatic levels of Mr Sawa’s spine were at L4/5 and L5/S1. On this basis, he recommended an L4-S1 anterior lumbar interbody fusion and L4-S1 decompression and fusion. As DP King SC observed in Hahn, experts use their experience and medical intuition as well as relying on histories, the results of investigations and their training and expertise, and often, when they arrive at an opinion, it cannot always be elaborated and explained at length. I prefer Dr Hsu’s opinion in respect of the proposed surgery over the surgery proposed by Dr Khong for the reasons already stated.
On 27 April 2021, Dr Hsu causally related Mr Sawa’s condition to the work-related incident. He opined that the pathology was confined to the intervertebral discs and more related to the annular tear and disc bulges. Dr Hsu’s diagnosis was one of L4/5 and L5/S1 intervertebral disc pathology. He opined that the aim of the proposed surgery was to reduce back and leg problems by at least 50% with an anticipated return to pre-injury duties within 6 to 12 months following surgery. Dr Hsu opined that Mr Sawa had now exhausted non-operative treatment and required the proposed surgery. He noted that Mr Sawa had undergone spinal injections, physiotherapy, exercise therapy and chronic pain management.
Applying the principles referred to in Diab above, different treatments may qualify as ‘reasonably necessary’ and Mr Sawa only has to establish that the treatment claimed is one of those treatments. The proposed a L4-S1 anterior lumbar interbody fusion and L4-S1 decompression and fusion is one of those treatments and I find as follows:
(a) the alternative treatment by way of conservative management (medication, physiotherapy, home-based exercises, exercise therapy, psychological counselling, chronic pain management and spinal injections) which has failed over the last seven years is unlikely to be effective and on the balance of probabilities, will result in Mr Sawa continuing to suffer the ongoing pain and restrictions referred to in the evidence;
(b) without the proposed surgery, Mr Sawa will continue to have episodic disabling low back pain and leg symptoms;
(c) Kings Transport raised no issue as to the cost of the proposed surgery;
(d) the potential effectiveness of the proposed surgery is the best chance Mr Sawa has of improving his current and longstanding symptoms, improving his quality of life and resuming suitable full-time employment;
(e) the purpose and potential effect of the proposed surgery is to alleviate the consequences of the injury as far as possible by reducing back pain and leg symptoms, and
(f) Dr Hsu’s evidence supports the proposed surgery as being reasonably necessary and likely to be beneficial in the circumstances of this case.
The need for surgery can arise from multiple causes. The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act. I find that Mr Sawa has established, applying the common sense test of causation, that the proposed treatment is reasonably necessary ‘as a result of’ the injury on 23 October 2017. That is, he has established that the injury materially contributed to the need for the proposed surgery.
Accordingly, I find that Mr Sawa has discharged the onus of proving that the two stage surgery, namely, an L4-S1 anterior lumbar interbody fusion (stage 1) and L4-S1 decompression and fusion (stage 2) proposed by Dr Hsu is reasonably necessary treatment as a result of the injury sustained by Mr Sawa in the course of his employment with Kings Transport on 23 October 2017.
CONCLUSION
My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.
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