Seymour v Baptistcare NSW & Act

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Seymour v Baptistcare NSW & ACT [2022] NSWPIC 12
APPLICANT:	Linda Seymour
RESPONDENT:	Baptistcare NSW & ACT
MEMBER:	Rachel Homan
DATE OF DECISION:	10 January 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for compensation pursuant to section 60 of the Workers Compensation Act 1987 for costs of and incidental to proposed cervical surgery; disputed injury to cervical spine in electrocution event; prior reports of neck symptoms in clinical notes; delay in reporting symptoms at neck although symptoms in upper limb reported contemporaneously were later attributed to cervical spine pathology; whether surgery reasonably necessary; Held - applicant sustained an injury to the cervical spine; surgery was reasonably necessary as a result of injury; award for the applicant.
DETERMINATIONS MADE:	1. The applicant sustained an injury to her cervical spine pursuant to ss 4(a), 4(b)(ii) and 9A of the Workers Compensation Act 1987 on 11 August 2019. 2. The C5/C6 and C6/C7 anterior cervical discectomy and fusion surgery proposed by Dr Peter Khong on 1 July 2021 is reasonably necessary as a result of the injury on 11 August 2019.
ORDERS MADE:	1. The applicant to pay the costs of and incidental to the C5/C6 and C6/C7 anterior cervical discectomy and fusion surgery proposed by Dr Peter Khong, in accordance with s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Ms Linda Seymour (the applicant) was employed by Baptistcare NSW & ACT (the respondent) when she sustained an electrocution injury on 11 August 2019. Liability for an injury on that date was accepted by the respondent’s insurer.
On 17 April 2020, the insurer received a request for approval to undergo cervical surgery.
Liability for an injury to the applicant’s cervical spine in the injurious event and liability for the proposed surgery were disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 5 June 2020.
A further notice disputing the applicant’s ongoing entitlement to weekly compensation and medical expenses for the injury was issued on 3 August 2020. That decision was maintained following a review pursuant to s 287A of the 1998 Act on 29 June 2021.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 15 July 2021. The ARD sought weekly compensation and s 60 expenses, including compensation for the costs of and incidental to the proposed cervical surgery.
The claims for weekly compensation, incurred s 60 expenses, and the applicant’s reliance on injury or consequential conditions affecting a number of body parts and systems were subsequently discontinued.

PROCEDURE BEFORE THE COMMISSION

At an initial teleconference on 13 August 2021, the respondent sought leave to issue a Direction for Production to Leeton Medical Centre for the applicant’s full clinical records. The application was not opposed by the applicant and leave to lodge the Direction for Production was granted.

When the matter proceeded to conciliation conference and arbitration hearing on 27 September 2021, it was noted that the Direction for Production had not been fully complied with. Only records from 12 August 2019 onwards had been produced. The respondent’s solicitor made enquires of the medical centre who advised that a large volume of records dating back to 2000 were held.

The respondent sought an adjournment of the proceedings to enable further enquires to be made in an effort to have the full clinical file produced. That application was declined in the absence of compliance with the procedure in r 49(3) of the Personal Injury Commission Rules 2021 (the PIC Rules), or other effort to bring the non-compliance to the Commission’s attention prior to the conciliation arbitration date.

A number of other interlocutory matters were determined including, the admission of late documents lodged by the respondent on 21 September 2021, amendments to the ARD and the granting of leave pursuant to s 289A(4) of the 1998 Act. Due to the need to deal with those matters, there remained insufficient time to hear oral submissions on the substantive issues in dispute and a direction establishing a timetable for written submissions was made.

Leeton Medical Centre’s full clinical file was subsequently produced to the Commission on 7 October 2021. The applicant was given first access on 11 October 2021 and the respondent given access on 14 October 2021.

The applicant’s written submissions were lodged on 11 October 2021.
On 19 October 2021, the respondent lodged written submissions and an Application to Admit Late Documents attaching clinical notes pre-dating the injury from the Leeton Medical Centre.

The applicant wrote to the Commission on 20 October 2021 requesting a further teleconference to deal with her objection to the admission of the Application to Admit Late Documents lodged by the respondent on 19 October 2021. A further teleconference was granted.

On 27 October 2021, written submissions in reply were received from the applicant.

At the further teleconference on 1 November 2021, oral submissions were heard from both parties in respect of the Application to Admit Late Documents. A determination was made granting leave to the respondent pursuant to r 67(4)(b) of the PIC Rules to lodge the documents attached to the Application to Admit Late Documents dated 19 October 2021 and rely on that evidence in these proceedings.
A direction was also made granting leave to the applicant to lodge further written submissions in response to the late documents on or before 8 November 2021. Further written submissions were received from the applicant on 8 November 2021.
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.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) whether the applicant sustained an injury to her cervical spine on 11 August 2019, and
(b) whether the C5/6 and C6/7 anterior cervical discectomy and fusion proposed by Dr Peter Khong on 6 July 2021 is reasonably necessary as a result of the injury on 11 August 2019.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD and attached documents;
(b) Reply and attached documents;

(c) Documents attached to an Application to Admit Late Documents lodged by the respondent on 21 September 2021 with the exception of the following:

(i)s 78 dispute notice, dated 24 August 2021;
(ii)Centrelink letter to worker re disability support pension, dated 1 February 2021;
(iii)radiological reports from Dr Victor Mansberg, dated 19 October 2020 and 10 December 2020;
(iv)Centrelink medical certificate issued by Dr Simon Wallace, dated 20 January 2021;
(v)medical reports by Dr Craig Haifer, dated 28 January 2021, 11 March 2021, 6 April 2021 and 28 April 2021, and
(vi)discharge summary, Concord Repatriation General Hospital, dated 23 April 2021.

(d) documents attached to the Application to Admit Late Documents lodged by the respondent on 19 October 2021;
(e) written submissions lodged by the applicant on 11 October 2021;

(f) written submissions lodged by the respondent on 19 October 2021;

(g) written submissions in reply lodged by the applicant on 27 October 2021, and

(h) further written submissions in reply lodged by the applicant on 8 November 2021.

Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in a written statement dated 13 July 2021. In that statement, the applicant said that before the workplace accident she had not suffered any significant injuries to her neck, shoulders, thoracic spine, lumbar spine, hip or head.
The applicant described the injury as occurring when she went to switch on an electric starter motor in a fireplace at a client’s home:
“As I turned the button on with my left hand, I was electrocuted. I recall being thrown backwards across the room falling and landing on my back and right hip. The left side of my body went into a hard lock following the accident. I rolled over and felt immediate severe pain in my arm and chest.”
The applicant reported the incident to her supervisor who drove the applicant to Leeton Hospital. At the hospital, the applicant experienced pins and numbness affecting her left hand and severe pain affecting her left hand, shoulders, chest and ribs. The applicant was discharged home and went to see a general practitioner, Dr Dongmei Wang, at the Leeton Medical Centre the next day. The applicant was prescribed analgesic and referred for physiotherapy.
The applicant said she suffered debilitating symptoms of pain, stiffness and discomfort affecting her neck and other body parts. The applicant said that at times she felt as though her neck was going to “snap”. The neck symptoms were associated with radicular symptoms of pins and needles, numbness and sharp pain affecting the left upper limb. The applicant felt the pain was going from her neck into her arms, especially on the left. The applicant believed the discectomy and fusion proposed would help with this quite a bit.
The applicant said she had been treated with conservative, non-surgical measures over the previous 22 months including, physiotherapy, home exercises, analgesia and regular use of hot packs.
The applicant underwent a CT guided left C7 peri-radicular cortisone injection on 3 June 2020. This resulted in a transient improvement in the applicant’s left upper limb radicular symptoms for two days.
The applicant said that cervical surgery had been recommended by two separate neurosurgeons, Dr Michael Ow-Yang and Dr Peter Khong. The applicant was on a waiting list for a C5/C6/C7 anterior cervical discectomy and fusion under the care of Dr Khong.

The applicant said her symptoms were getting worse and she was struggling with secondary symptoms of depression and anxiety. The applicant remained under the care of her current general practitioner, Dr Eric Lim.
With regard to previous neck symptoms, the applicant said:
“I had never felt this pain in my neck and arm prior to the subject workplace accident, I had never suffered an injury that would have caused the disc prolapse like that before.
…
I have not suffered any similar injuries in the past or since the subject workplace accident. I have lost count of how many doctors and such have told me that my condition including my neck condition due to the electrocution and injuries coming from that.”

Treating medical evidence

The records of Leeton Medical Centre include a discharge referral from Bathurst Base Hospital, dated 9 November 2013 in relation to an admission for polyarthropathy for two days at the shoulder, neck, elbows, wrists, hand, hips, knees and ankle. The applicant was noted to have a history of Crohn’s disease and chronic right arm tremor.
A clinical record on 25 November 2013 referred to the applicant having a remicade infusion and blood tests suggesting an “infective cause”.
A clinical record on 24 October 2016 referred to the applicant having been in “WBH” the previous week and requiring follow-up.
On 27 October 2016, Dr Simon Wallace, recorded that the applicant had significant muscle spasms in her right shoulder, neck and scapular region. The applicant was referred for physiotherapy and prescribed Panadeine Forte. A letter of referral to Leeton Physiotherapy Centre of the same date stated:
“Thank you for seeing the above patient for assessment and treatment. She has a long term problem with her right arm and shoulder but more recently a fall that ended her up in Wagga. CT brain, neck, thoracic and lumbar regions were all normal but she has ongoing muscle spasm and pain.”
Records from Leeton Hospital dated 11 August 2019 indicate that the applicant presented after an electric shock ran through her whole body and she was physically thrown back. The applicant reported pain of her left hand, shoulders, chest and ribs., In a progress note, the applicant was reported to be complaining of pins and needles, tingling and pain in the left third finger.
On 12 August 2019, general practitioner, Dr Dongmei Wang, recorded a consultation as follows:

“For WorkCover
had muscle and right side hip pain since yesterday
had electric shock working at Place
when she touched the round motor
ECG and Blood done in Ldh – NAD
Still c/o shoulder and right hip pain
Ahd panadeine forte with limited effect
c/o tingling and burning sensation at left arm area”

On 26 August 2019, Dr Wang recommended the applicant be reviewed by a neurologist for further investigation. The applicant continued to complain of tingling and burning sensation at the left arm area.
A physiotherapist, Ms Emily McCarthy, also prepared a report on 26 August 2019. The applicant was reported to have significant reduced upper and lower limb strength. Ms McCarthy also recommended a review with a neurologist to further investigate the symptoms.
On 18 September 2019, general practitioner, Dr Heulwen Rees, recorded a clinical note indicating that the applicant had reduced power in her upper limbs since the electric shock at work. The applicant was suffering from constant pain, was commenced on Targin and referred to a neurologist.
The applicant was seen by consultant neurologist, Dr Ron Brooder on 28 October 2019. Dr Brooder reported that the majority of the applicant’s symptoms were related to a musculoligamentous aetiology consequent upon the sudden severe muscle spasm that occurred at the time of the electrocution. The applicant also sustained a mild distal left ulnar sensory nerve injury.
Dr Brooder recorded the applicant’s symptoms as follows:
“Following the injury she had developed quite marked pain and muscle twitching involving the left forearm extending into her left shoulder and also involving her thoracolumbar spine….
Her injuries had been associated with quite marked bruising involving her left shoulder, her left hip and her left buttock. She had commenced physiotherapy and remedial massage that resulted in a gradual improvement in her symptoms. However, she remains aware of persistent cervical pain; cervico-occipital headaches and also relatively constant course muscle twitching involving predominantly her upper limbs that is more marked on the right side. There was also persistent slight tingling paraesthesia involving her left little and ring fingers.”
Dr Brooder said he had reassured the applicant that she had not sustained any significant neurological injury. Dr Brooder suggested that her further management remain conservative and dependent upon continuing physiotherapy and remedial massage. Dr Brooder anticipated a further improvement in the applicant’s symptoms over the next four to six weeks.
On 31 October 2019, Dr Rees noted that the applicant had attended her appointment with a neurologist and had been advised that there was no neurological damage. It was noted that Targin had not been effective and the applicant was to trial Endep.
On 4 December 2019, the Dr Rees recorded that the applicant did not feel her pain was covered. The applicant was prescribed Mersyndol instead of Panadeine forte and her Endep prescription was increased.
On 8 January 2020, Dr Rees noted that the applicant had been slowly progressing. The applicant was continuing with physiotherapy and massage.
On 21 February 2020, the applicant’s gastroenterologist, Dr Vincent Fernon saw the applicant in relation to her Crohn’s disease. Dr Fernon reported that the applicant had “recovered from her electrocution.”
On 6 March 2020, general practitioner, Dr Deepak Puri, referred the applicant to sports medicine physician, Dr Karen Bisley. The letter of referral gave a history of electrocution on 11 August 2019 and recurrent upper limb spasm.
On 27 March 2020, Dr Bisley referred the applicant to neurosurgeon, Dr Michael Ow-Yang. The letter of referral gave a history of the applicant falling on her right hip following the electrocution. The applicant recalled all her muscles “went really tight”. The applicant had palpitations at her chest and left arm and left shoulder. The applicant denied any head injury but had a sore neck.
Dr Bisley also referred the applicant for MRI. The report of an MRI of the spine performed on 30 March 2020 indicated that there was canal stenosis is at C5/6 and C6/7 secondary to posterior disc protrusions.
A SIRA certificate of capacity issued on 1 April 2020 by Dr Bisley, recorded that the applicant had marked narrowing of the spinal cord in the neck with right arm twitching and left arm weakness and numbness. Dr Bisley said she suspected the applicant needed urgent surgery and was seeing a neurosurgeon the next week. Dr Bisley noted that no investigations had been done until that week.
On 8 April 2020, neurosurgeon, Dr Michael Ow-Yang prepared a report for Dr Bisley in which he took a history of the applicant being thrown and landing on her right hip when she was electrocuted. Since the injury, the applicant had severe left upper limb radicular pain radiating from the neck to the interscapular region through the posterior arm to the forearm. The applicant described weakness in the left upper limb. The applicant’s pain was more prominent when she tilted her head to the left side.
Dr Ow-Yang said that MRI of the cervical spine showed evidence of C5/6 and C6/7 disc injuries. At C6/7 there was a more significant posterior disc protrusion causing severe canal stenosis with spinal cord compression as well as severe left C6/7 foraminal stenosis and severe left C7 nerve compression. Dr Ow-Yang said:
“The work-related injury is consistent as the likely cause of the cervical disc injuries due to the mechanism of injury. The timing of the injury is also consistent as she did not have any previous history of left upper limb radicular pain.”
Dr Ow-Yang noted that the applicant had failed to improve with extensive physical therapy and rehabilitation therapy as well as the use of strong analgesic medication. Cervical steroid injections had a 50% chance of improving pain but the effect could be temporary and the mechanical component of pain when the applicant turned to head to the left may not improve after steroid injection treatment. Dr Ow-Yang recommended surgery in the form of an anterior C5/6 and C6/7 cervical discectomy plus rhizolysis plus cervical disc arthroplasty.
On 16 April 2020, Dr Ow-Yang reported that he had reviewed the applicant in his rooms. The applicant’s main complaint was severe and disabling brachialgia with pain and paraesthesia radiating from the left side of the neck to the left interscapular region and into the posterior left arm through the forearm towards the middle three fingers. Symptoms were more prominent when moving the neck.
Dr Ow-Yang said he had reviewed correspondence, dated 28 October 2019, from Dr Brooder, and noted that he recommended a conservative treatment pathway.
Dr Ow-Yang said the main component of the applicant’s symptoms expected to improve with surgery was the intermittent sharp shooting pain and paraesthesia running from the left side of the applicant’s neck. The applicant understood that there was likely to be only a partial improvement of pain with surgery. The applicant felt that the current level of pain and disability was severe enough to warrant escalation in treatment.
Dr Ow-Yang again recommended an anterior C5/C6 and C6/7 discectomy plus rhizolysis plus cervical disc arthroplasty. Dr Ow-Yang said,
“Anterior discectomy and fusion is also an option but it has the problem of potentially increasing the rate of symptomatic adjacent segment degeneration which may need further surgery in the future.”

On 20 April 2020, Dr Bisley reported to Dr Puri that Dr Ow-Yang had recommended urgent C5/6 and C6/7 cervical disc replacement surgery. Dr Bisley stated:
“Linda was electrocuted. She has C7 radiculopathy due to the C6/7 foraminal protrusion and C6/7 and probable cervical myelopathy that has likely contributed to her falls.
When she was electrocuted, she probably had a massive flexion/extension episode of her neck that has contributed to her symptoms now. She had palpitations post electrocution indicating heart involvement and skeletal muscle damage, evidence described by the brown urine, likely caused by myoglobinuria post electrocution (rhabdomyolysis) followed by marked muscle wasting.”
On 14 May 2020, Dr Bisley prepared referrals to the neurosurgical departments at Canberra Hospital, St Vincent’s Hospital and Royal Prince Alfred Hospital, noting that Dr Ow-Yang had recommended cervical surgery which had been declined by the insurer. Dr Bisley reported that the applicant had deteriorated in the last two weeks and was now struggling to use her hands.
On 22 May 2020, Dr Barton Waser, a senior resident medical officer at Canberra Hospital reported that the applicant had been seen at a neurosurgical outpatient clinic. The applicant presented for opinion on chronic axial neck pain with a left radicular component. A history was taken of the electrocution event in August 2019 where the applicant was thrown across the room. After the shock of the initial event, the applicant was left with an experience of axial neck pain, bilateral arm pain and weakness and painless tremor.
On examination, Dr Waser noted hyperaesthesia in the C7 distribution, tenderness over the neck and other joints at the left arm. The MRI was noted to demonstrate potential compression secondary to disc on the left C7 nerve root and potential canal stenosis. Noting that the MRI was degraded due to motion artefact, it was recommended that the applicant undergo a repeat MRI under general anaesthetic.
On 16 June 2020, Dr Bisley prepared a report for Dr Puri in which was noted that the applicant had been referred to the public system because the insurer had not accepted that the electrocution had caused neck symptoms despite she and Dr Ow-Yang thinking that the current symptoms had been exacerbated following the electrocution. The applicant reported numbness and dropping things, which Dr Bisley said was related to her neck. Dr Bisley recommended ongoing massage and physiotherapy and a CT guided steroid injection to give interim relief as an option.
A report from Dr Puri, dated 9 December 2020, noted that following the injury on 11 August 2019, the applicant had been referred to Dr Karen Bisley, a sports medicine specialist and Dr Ow-Yang, a neurosurgeon. It had been recommended that the applicant undergo surgical procedure to ease her spasms and twitches and to gain more functionality. Dr Puri gave the opinion that the accident had aggravated age-related changes at the applicant’s cervical spine.
Neurosurgeon and spine surgeon, Dr Peter Khong prepared a report requesting surgery on 10 June 2021. Dr Khong took a history of the applicant being thrown when she was electrocuted on 11 August 2019. After that, the applicant had ongoing pins and needles and pain in the left trapezius, periscapular region and shoulder. The applicant had constant pain in the neck and pain radiating down the posterior left arm, around the tricep and posterior forearm to the little finger.
Dr Khong noted that the applicant had a left C7 perineural injection on 3 June 2020. This helped a lot for eight days before return of the applicant’s pain. An MRI of the cervical spine performed on 30 March 2020 showed degenerative disc disease, worse at C5/6 and C6/7. There was a central and right-sided disc protrusion at C5/6 indenting the spinal cord. A disc protrusion causing central and bilateral foraminal stenosis was seen at C6/7. A bone scan performed on 2 June 2020 showed low-grade increased uptake at C5/6 and C6/C7. Dr Khong gave the opinion:
“Ms Seymour continues to complain of neck pain and left arm pain. This was directly caused by her workplace injury, which caused a severe exacerbation of previously asymptomatic degenerative changes. The nature and conditions of her work as an aged care worker also likely accelerated these degenerative changes.”
Dr Khong gave the opinion,
“Reasonable treatment options at this point include analgesia, physiotherapy, steroid injections and surgery. Ms Seymour has failed all nonsurgical management options to date. The treatment of her neck and arm pain, surgery is reasonable.
Surgery is also necessary because Ms Seymour is unlikely to improve without surgery. She has had pain for almost 2 years since the accident. She is unlikely to make any significant recovery without surgery. I have recommended a C6/7 anterior cervical discectomy and fusion.”
In a further report, dated 1 July 2021, Dr Khong revised his recommendation for surgery stating,
“Initially I had recommended a C6/7 anterior cervical discectomy and fusion. However, given her ongoing severe neck pain and the severe degenerative disc disease at C5/6 and C6/7, I would recommend a C5/6 and C6/7 anterior cervical discectomy and fusion, given a single level fusion at C6/7 would cause adjacent segment disease at C5/6 and cause this level to worsen faster. She is also likely getting neck pain from this level.”

Dr Dias

The applicant relies on a medicolegal report prepared by consultant occupational physician, Dr Uthum K Dias, dated 13 April 2021. Dr Dias indicated that he had a range of treating medical evidence before him including clinical records of Leeton Medical Centre as at 20 October 2020.
Dr Dias said the applicant could not recall any previous injuries or known pre-existing conditions affecting her neck prior to the workplace accident of 11 August 2019. The applicant recalled being diagnosed with a benign action tremor affecting the right upper limb as a teenager but did not have any specific treatment for the tremor.

Dr Dias took a history of the injurious event and the subsequent treatment in a manner consistent with the applicant’s written statement.
The applicant struggled to walk for more than 30 minutes a time or stand for more than 20 minutes at a time. Sitting was becoming increasingly uncomfortable due to worsening neck and upper back pain after 20 minutes. Prior to the accident the applicant had been fit and active and used to jog 5km per day. The applicant required help with certain tasks of self-care including food preparation, tying shoelaces and doing up buttons. The applicant required assistance in performing domestic tasks and was unable to contribute to gardening duties.
Dr Dias took a past medical history of Crohn’s disease diagnosed in 2010 and oesophageal strictures. The applicant denied any other relevant medical conditions or pre-existing injuries of note.

Dr Dias performed an examination and relevantly made a diagnosis as follows:
“Ms Seymour has sustained a persistent aggravation of pre-existing previously asymptomatic degenerative cervical spondylosis with an associated persisting left C7 radiculopathy, secondary to an acute discogenic injury with associated C5/C6 and C6/C7 disc protrusions.”
Dr Dias gave the opinion that the workplace accident was the main contributing factor to the applicant’s current condition and disabilities associated with her cervical spine. Dr Dias stated:
“Ms Seymour does have radiological evidence of pre-existing degenerative change in her cervical spine region, consistent with degenerative cervical spondylosis. However this condition was entirely asymptomatic prior to the subject electrocution event of 11th August 2019. Ms Seymour has suffered with chronic symptomatology in her neck, associated with radicular symptoms affecting her left upper limb on a consistent basis over the course of the past 20 months since the subject event.”
Dr Dias expressed disagreement with the opinion of neurologist, Dr Ron Brooder, stating:
“I disagree with the opinion provided by Dr Ron Brooder, Neurologist in his report dated 28th October 2019. Ms Seymour did sustain a sudden severe muscular spasm, as a result of the acute electrocution event of 11th August 2019. She also sustained a discogenic injury to her cervical spine, an acute closed head injury (analogous to traumatic brain injury), as a result of the acute electrocution event. She has continued to suffer from discogenic cervical spine pain and ongoing neurological sequelae as a result of her acute closed head injury as a result of the subject accident, over the course of the past 20 months since the subject incident. In my opinion, the majority of her symptomatology relates to her head and neck injuries at the present time.”
Asked to comment on the surgery proposed by Dr Ow-Yang in the form of a C5/C6 and C6/C7 discectomy plus rhizolysis and cervical disc arthroplasty, Dr Dias said:
“I agree with Dr Ow-Yang’s comments and recommendations regarding Ms Seymour’s cervical spine condition. In my opinion, Ms Seymour is a candidate for surgical intervention in relation to her cervical spine condition. It is clear, that her cervical spine injury has essentially exhausted conservative non-surgical treatment measures over the course of the past 20 months. She is a candidate for the surgical intervention as proposed by Dr Michael Ow-Yang, Neurosurgeon, in the form of anterior C5/C6 and C6/C7 discectomy plus rhizolysis plus cervical disc arthroplasty procedure.”
Dr Dias disagreed with an opinion given by the respondent’s medicolegal expert, Dr Casikar stating:
“In my opinion, Ms Seymour does have radiological evidence of pre-existing degenerative change in her cervical spine region, which would have been present prior to the subject event of 11th August 2019. However, based on my careful perusal of the available evidence, it is clear that Ms Seymour’s pre-existing condition of degenerative cervical spondylosis was entirely asymptomatic prior to the subject event. As a result of the subject event, Ms Seymour sustained an acute electrocution event, resulting in severe muscular spasm and hyperextension-flexion injury to her cervical spine. In my opinion, this resulted in disc protrusion at C5/C6 and C6/C7 levels that were frank and new onset, and superimposed on mild previously asymptomatic degenerative changes. With respect to Dr Casikar’s assertion regarding ‘soft tissue injury’, Ms Seymour did have an electrocution contact injury to the dorsum of her left hand (the entry wound), and over the posterior aspect of her right hip (the exit wound). The electrocution event, resulted in multiple soft tissue injuries, to various parts of her body and her cervical spine condition, initially manifested as a sensory loss, weakness, and dysesthesia affecting her left upper limb. Eventually, following appropriate investigations of Ms Seymour’s cervical spine, she was found to have sustained disc protrusions at C5/C6 and C6/C7 levels, with compromise of the left C7 nerve root, in early 2020. Given that Ms Seymour was entirely asymptomatic in her cervical spine region prior to the electrocution event and has suffered with ongoing symptomatology in her cervical spine, with associated left upper limb radicular symptomatology over the course of the past 20 months since the subject accident, in my opinion, the aggravation of Ms Seymour’s previously asymptomatic condition of degenerative cervical spondylosis has not resolved, and in fact continues to persist on an ongoing basis.”

Dr Casikar

The respondent relies on a medicolegal report prepared by neurosurgeon, Dr Vidyasagar Casikar, dated 8 May 2020.
Dr Casikar took a history of the applicant falling on her left hip following the severe electric shock. Due to persisting symptoms, the applicant underwent an MRI of the brain and an MRI of the cervical spine. The applicant was seen by Dr Brooder who indicated that there was no neurological injury. The applicant was subsequently referred to Dr Ow-Yang who had recommended a multi-segment anterior cervical discectomy and fusion. The applicant was taking Lyrica and tramadol.
Dr Casikar reviewed the report of the MRI dated 30 March 2020 which indicated posterior disc protrusion at C6/C7 and C5/C6. Dr Casikar gave the opinion,
“The MRI examination did not show any evidence of soft tissue injury to the ligaments and the muscles in the region of the neck. Therefore, in my opinion, the disc protrusion that is seen at C5/C6 and C6/C7 segments are unrelated to the electrocution injury. If the electrical injury did cause a hyper extension flexion injury to the cervical spine, in addition to the disc prolapse one would have seen some evidence of a soft tissue injury in the region of the neck. It is very difficult to imagine that the injury would produce only a disc prolapse without any associated soft tissue injury. Therefore, in my opinion, the electrical injury did not produce the disc prolapse.”
Dr Casikar said he could not make out any clinically verifiable evidence of a nerve root compression related to the pathology seen at the C5/6 and C6/C7 segments.
Dr Casikar gave the opinion that Dr Ow-Yang’s diagnosis was acceptable but he found it difficult to justify that diagnosis as a consequence of the electrical injury.
Dr Casikar disagreed with the mechanism of injury put forward by Dr Bisley, stating:
“The mechanism of injury put forward by Dr Bisley is difficult to substantiate. She indicates that she had a massive flexion/extension injury. If this was true, then there would have been some evidence of soft tissue injury to the muscles and the ligaments in the neck as well. It is very difficult to accept that the injury would only occur in the disc space without any associated soft tissue injury. Therefore, I find it difficult to accept her premise that the disc prolapse was entirely due to the electrical injury.”
With regard to the surgery proposed by Dr Ow-Yang, Dr Casikar stated:
“Dr Ow-Yang’s suggestion of surgery is probably acceptable, based on the radiological findings. However there is no evidence to suggest that these are causing any clinically verifiable symptoms in the upper limbs.
Ms Seymour shows evidence of post-traumatic stress disorder, and under these conditions any surgery to her neck would have a poor outcome. I believe she should see a specialist to resolve this. If this is not controlled, the outcome of the surgery would be poor.
The surgery suggested by Dr Ow-Yang is an acceptable method of treatment for the pathology seen at C5/6 and C6/C7 segments, however, to indicate that the necessity for surgery because of the electrocution is difficult to justify.”

Applicant’s submissions

The applicant sought a declaration that the C5/6 and C6/7 anterior discectomy and fusion proposed by Dr Khong was reasonably necessary as a result of the injury on 11 August 2019.
The applicant submitted that the majority of clinical evidence supported the proposition that the proposed surgery was reasonably necessary as a result of the event on that date. The only countervailing opinion was that from Dr Casikar.
The applicant said there was no doubt that there was clinically significant pathology at C5/C6 and C6/C7. Reference was made to the MRI performed on 30 March 2020. Dr Casikar did not dispute the description of the pathology in the MRI report but did not relate that pathology to the injurious event. Dr Casikar also seemed to accept that surgery at C5/6 and C6/7 was reasonably necessary.
Dr Casikar’s opinion on causation was based on the absence of soft tissue injury to the ligaments and muscles in the MRI. The applicant submitted that this reasoning was implausible. Dr Casikar made no reference to having personally reviewed the MRI films. The injurious event occurred on 11 August 2019 and the MRI was performed on 30 March 2020. The basis for Dr Casikar’s assumption that a soft tissue injury would still be present nine months after the relevant trauma was not explained. Dr Casikar did not explain whether soft tissue injury to the muscles and ligaments was detectable by MRI scanning let alone MRI scanning performed almost nine months after the relevant trauma. There was also no explanation for Dr Casikar’s assumption that the radiologist would have reported on any soft tissue injury to the muscles and ligament when the referral was for an MRI of the spine.
Given the inherent uncertainty as to the correctness of Dr Casikar’s assumptions, the applicant submitted that Dr Casikar’s opinion was implausible.
The applicant noted Dr Casikar’s failure to find signs of radiculopathy at his examination on 5 May 2020. In contrast, two weeks earlier, on 16 April 2020, Dr Ow-Yang found severe and disabling brachialgia with pain and paraesthesia radiating from the left side of the applicant’s neck. On 22 May 2020, Dr Waser noted hypoaesthesia in the C7 dermatome. The applicant observed that Dr Casikar’s consultation was performed through Zoom whereas Dr Ow-Yang and Dr Waser performed physical examinations. Radicular signs had also been described by Dr Khong, Dr Bisley and Dr Dias.
The applicant noted that Dr Bisley, Dr Ow-Yang, Dr Khong and Dr Dias all gave opinions that the event on 11 August 2019 caused injury to the C5/C6 and C6/C7 intervertebral discs. The fact that four experts, independently arrived at the same conclusion would give the Commission confidence in the correctness of that common conclusion.
By contrast, Dr Casikar’s opinion received no support anywhere in the medical evidence. Dr Casikar’s opinion was isolated. The Commission would be satisfied, on balance, that the cervical disc lesions described in the MRI scan were caused by the injurious event in August 2019.

Respondent’s submissions

The respondent submitted that there could not have been a direct injury to the cervical spine in the event on 11 August 2019 as the applicant first complained of cervical spine symptoms in about March 2020, some seven months later. This circumstance did not suggest a direct injury.
In her statement, the applicant did not identify symptoms in the neck or initial symptoms following the electrocution.
The records of Leeton District Hospital did not indicate that the applicant complained of neck pain. Dr Wang did not make a record of any injury to the neck or complaint of pain or discomfort in the neck on 12 August 2019 or at a further consultation on 26 August 2019. No mention of pain in the neck was made to the applicant’s physiotherapist. Complaints of neck pain were not recorded by Dr Rees in September 2019.
The respondent noted Dr Brooder’s opinion that the applicant had not sustained a significant neurological injury and that her main problems were musculoligamentous in nature.
The respondent noted Dr Fernon’s comment that the applicant had recovered from her electrocution in February 2020.
The respondent submitted that the applicant’s presentation to Dr Bisley in March 2020 was completely different to her presentation to her treating general practitioners, physiotherapist, Dr Brooder and Dr Fernon, and her presentation at Leeton District Hospital on the day of the electrocution.
The respondent noted that the clinical notes of the Leeton Medical Centre did not contain any mention of the applicant complaining of neck pain. The respondent submitted that it was unclear why the applicant was referred to Dr Bisley.
The history taken by Dr Ow-Yang of severe left upper limb radicular pain radiating from the neck to the interscapular region through the posterior arm to the forearm was not the history obtained by the other doctors the applicant had seen since her injury. Dr Ow-Yang recommended surgery without examining the applicant.
The respondent submitted that Dr Bisley speculated as to there having been a massive flexion/extension episode of the neck. No explanation was provided, however, as to why the applicant was not symptomatic in her neck from the date of the incident until she was seen by Dr Bisley.

The respondent submitted that the opinions of Dr Bisley and Dr Ow-Yang should be given little weight as they were not aware of the applicant’s pre-existing history of a fall in about October 2016 which prompted the applicant to attend Wagga Wagga Hospital. The applicant was referred for a CT scan of her neck at that time although the report of that scan was not found in the clinical notes. Dr Bisley and Dr Ow-Yang were also not aware of an attendance at Bathurst Base Hospital on 9 November 2013, following which the applicant was diagnosed with polyarthropathy affecting the neck and a number of other joints.
The respondent noted that Dr Waser recommended a repeat MRI under general anaesthetic and found no clear cord compression on examination. He was of the view that the applicant should not rush into surgery because he was not convinced that there was any real compression of the nerve. This opinion was contrary to the opinion of Dr Ow-Yang.
The respondent submitted that the history given to Dr Khong of constant neck pain was inconsistent with the applicant’s presentation to her general practitioners. Dr Khong also did not have the history of pre-existing problems in 2013 and 2016. Dr Khong’s opinion should also not be given any weight in so far as it was based on a history of neck pain for almost two years, which was not supported by the contemporaneous medical evidence.
The respondent observed that Dr Dias appeared to obtain a history of discogenic injury to the cervical spine. This was inconsistent with the early medical evidence before the Commission, in that there were no recorded complaints of neck pain until the applicant’s presentation to Dr Bisley. In giving his opinion as to the surgery, Dr Dias did not have the history of problems with the neck in 2013 and 2016. The respondent submitted that Dr Dias’s opinion regarding the surgery ought not to be given any weight.
The respondent noted Dr Casikar’s opinion that the pathology at C5/6 and C6/7 was unrelated to the electrocution injury. This was consistent with the problems experienced at the neck in 2013 and 2016. Dr Casikar was of the view that the mechanism of injury put forward by Dr Bisley was difficult to substantiate. Dr Casikar was of the view that there would have been some evidence of soft tissue injury to the muscles and ligaments in the neck as well. Dr Casikar was not of the view that the pathology at C5/6 and C6/7 was causing any clinically verifiable symptoms in the upper limbs.
The respondent submitted that Dr Casikar’s opinion was consistent with that given by Dr Waser.
The respondent submitted that the Commission would not be satisfied that surgery to the applicant’s neck was reasonably necessary at this time in view of the fact that Dr Waser was not persuaded that the applicant had any cord compression and that an MRI under general anaesthetic was needed.
Even if the surgery was necessary, the Commission would accept the view of Dr Casikar that it did not result from the electrocution incident. The respondent submitted that the Commission could not be satisfied that the need for surgery was materially contributed to by the incident on 11 August 2019 in light of the previous problems with the applicant’s neck.

Applicant’s further submissions in reply

The applicant submitted that the respondent’s review of the treating clinical material did not take into account the circumstances and mechanics of the injurious event. The clinical material was consistent with a neck injury whilst not expressly referring to neck symptoms. The Commission was required to consider all relevant matters.
The applicant submitted that the first complaint of neck pain was recorded by Dr Brooder on 28 October 2019. That report implied that the neck pain came on shortly after the time of the injurious event and had persisted for a period of time.
Whilst there were no complaints of neck pain there were complaints of symptoms consistent with cervical radiculopathy recorded in the notes of Leeton Hospital on the day of the event. Similar complaints were recorded in the Leeton Medical Centre clinical notes. The first radiological study performed on 30 March 2020 clearly identified a cause for those radicular complaints.
Following the injury, the applicant was prescribed a number of painkilling medications including Panadeine Forte, Targin and Mersyndol, as well as anti-inflammatory medication for the applicant’s pre-existing Crohn’s disease. Dr Bisley opined that this may have helped decrease swelling around the nerves and spinal cord. The effects of the applicant’s medication should be taken into account in considering the absence of specific complaints of neck pain.
In any event, the clinical notes of the applicant’s general practitioners were to be approached with caution consistently with Davis v City of Wagga Wagga Council[1].
[1] [2004] NSWCA 34 at [35].
The mechanism of injury described by Dr Bisley was consistent with the notes of Leeton Hospital and the history taken by Dr Brooder.
The applicant noted that Dr Ow-Yang conducted a physical examination of the applicant on 16 April 2020. In contrast, Dr Casikar’s medical opinion was generated without any examination.
Weighing against Dr Waser’s and Dr Casikar’s views on the necessity for surgery were the opinions from Dr Bisley, Dr Ow-Yang, Dr Khong and Dr Dias. The availability of alternative treatment options did not exclude the proposed surgery from being reasonably necessary. The applicant referred in this regard to Tray Fit Pty Ltd v Cairney[2]. In any event, Dr Waser’s opinion, whilst more cautious, did not exclude surgery per se.
[2] [2015] NSW WCCPD 2 at [59].
The applicant submitted that the complaints of neck pain made to the Leeton Medical Centre in 2013 and 2016 were inconsequential and irrelevant. The clinical notes indicated that the attendance on Bathurst Hospital on 9 November 2013 was in respect of symptoms due to an infective cause related to the applicant’s Crohn’s disease rather than trauma to the neck.
No further complaints of neck pain were recorded until 27 October 2016. In that period of almost three years, the applicant saw doctors at the Leeton Medical Centre on at least 85 occasions. Following the complaint of neck pain in October 2016, there were no further complaints of neck pain until after 11 August 2019, during which period there were almost 100 consultations. There was no treatment for neck complaints and no loss of capacity due to neck complaints in that period.
A referral to physiotherapy, dated 27 October 2016, referred to a CT scan of the neck described as “normal”. This was in stark contrast to the significant C5/C6 and C6/C7 pathology seen on the MRI of 30 March 2020. The applicant submitted that the significant disc pathology seen in March 2020 was caused or aggravated by the injury of 11 August 2019.
Given the triviality of the 2013 and 2016 complaints, the applicant submitted that there remained a fair climate for the acceptance of the applicant’s doctors’ opinions, consistently with Paric v John Holland Constructions Pty Ltd[3].

FINDINGS AND REASONS

[3] [1984] 2 NSWLR 5.

Injury

Section 9 of the Workers Compensation Act 1987 (1987 Act) provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[4], where Kirby P said at [461] (Sheller and Powell JJA agreeing):

“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[4] (1994) 10 NSWCCR 796 at [810].

His Honour said at [463]-[464]:

“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”

It is the applicant who bears the onus of establishing on the balance of probabilities that she has sustained an injury to her cervical spine for the purposes of s 4. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[5] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[5] [2008] NSWCA 246.
One of the challenges for the applicant in discharging her onus is the lack of contemporaneous evidence of symptoms at the cervical spine at and around the time of the injurious event.
In Department of Education and Training v Ireland [91] where the President, Keating J found:
“… the Arbitrator wrongly directed himself that the matter could be decided based on the credit of Ms Ireland alone. The task before the Arbitrator was to weigh the evidence of Ms Ireland together with other objective evidence, or the absence of it. The Arbitrator erred in failing to give due weight to Ms Ireland’s failure to make any report of injury to her back on the day of the accident. The absence of any documentary evidence from Dr Epps or Dr Baker to support any complaints of back pain, either contemporaneous to the accident or at least at intervals during the period between the accident and when it was first reported to Dr Wallace, is a significant omission in Ms Ireland’s case.”
Contrary to the respondent’s submissions that neck symptoms were first reported some seven months after the event, however, I am satisfied that the first recorded complaint of neck pain appears in the report of Dr Brooder, dated 28 October 2019. Dr Brooder recorded that the applicant “remained aware of persistent cervical pain”, suggesting the presence of pain for some time. Symptoms in the applicant’s left upper limb including, marked pain, twitching, tingling and paraesthesia involving the left little and ring fingers were also noted by Dr Brooder. Although Dr Brooder’s investigations led him to the conclusion that there was no neurological injury, no radiological investigation of the cervical spine was performed until March 2020.
The symptoms in the applicant’s left upper limb were consistently recorded from the time of the applicant’s presentation to Leeton Hospital on the date of the injury. The applicant reported pain in her left hand and shoulder as well as pins and needles, tingling and pain in the left third finger whilst at the hospital.
In August 2019, Dr Wang recorded that the applicant was complaining of tingling and burning sensation at the left arm. Reduced upper limb strength was recorded by the applicant’s physiotherapist. Dr Rees also recorded in September 2019 that the applicant had reduced power in her upper limbs and constant pain.
The clinical records of the applicant’s general practitioners in the months after the event indicate that the applicant’s pain was poorly controlled. Targin noted to be ineffective. Mersyndol, Panadeine Forte and Endep were also prescribed.
Although the applicant’s gastroenterologist, Dr Fernon saw the applicant in February 2020 and commented that the applicant had “recovered” from her electrocution, it may be noted that Dr Fernon saw the applicant primarily in relation to her pre-existing and ongoing Crohn’s disease. I am not satisfied that Dr Fernon’s comment should be read as indicating a complete recovery from all symptoms following the electrocution. The other treating medical evidence confirms that the applicant reported ongoing symptoms of pain, weakness and numbness.
The applicant was eventually referred by general practitioner, Dr Puri, to Dr Bisley. The history provided to Dr Bisley was of symptoms at the left arm and left shoulder and a sore neck. Dr Bisley ordered the first investigation of the cervical spine, which showed significant pathology including, canal stenosis secondary to posterior disc protrusions at C5/C6 and C6/C7.
The pathology seen at the cervical spine on the MRI has been associated with the applicant’s left upper limb symptoms, which were present from the outset, and attributed to the electrocution event by Dr Bisley, Dr Ow-Yang, Dr Puri, Dr Khong and Dr Dias.
The respondent submits that the opinions of the applicant’s doctors ought to be given little weight because they did not have the history of previous neck symptoms disclosed in the clinical records of Leeton Medical Centre in 2013 and 2016. The absence of a previous history of left upper limb and cervical symptoms was a factor relied on by the applicant’s doctors in reaching their conclusions.
Whilst I accept that neck symptoms were reported in 2013 and 2016 as set out in the treating medical evidence described above, I am not satisfied that the symptoms were referable to the disc protrusions at C5/C6 and C6/C7 shown on the March 2020 MRI. There are indications that the symptoms at a number of body parts including the neck in 2013 were related to an infection and the applicant’s Crohn’s disease. The 2016 symptoms were reported following a fall. However, a CT scan at the time was reported to be normal and there is no suggestion of any ongoing symptoms, investigation or treatment of cervical spine symptoms for several years until the injurious event.
It has been accepted by the applicant’s doctors that there was pre-existing degenerative change at the cervical spine. The electrocution event was, however, considered to have aggravated or exacerbated that pathology resulting in the disc protrusions and symptoms in the applicant’s left upper limb. The presence of pre-existing pathology is not fatal to the applicant’s case. It is a fundamental principle that employers must take workers as they find them[6].
[6] State Transit Authority (NSW) v Chemler[2007] NSWCA 249 at [40].
I am not satisfied on the evidence before me that any pre-existing pathology at the cervical spine was symptomatic to the degree reported after the injury or of the same nature. In all the circumstances, the two references to symptoms at the cervical spine in 2013 and 2016 do not persuade me that the applicant’s doctors lacked a proper factual foundation for the expression of their opinions on causation.
Other than the opinion of Dr Brooder, which was expressed prior to radiological investigation of the cervical spine, the only medical opinion contrary to that consistently expressed by the applicant’s doctors, is that given by Dr Casikar. Dr Casikar’s opinion is based on some scepticism around the reported mechanism of injury and the absence of evidence of soft tissue injury in the MRI report.
I am satisfied, however, that the mechanism of injury has been consistently reported as involving being physically thrown back. This was the history given to Leeton Hospital on the day of the event. Dr Brooder recorded that there was a sudden, severe muscle spasm at the time of electrocution. Dr Bisley recorded that the applicant’s muscles went really tight and gave the opinion that there had been a massive flexion/extension episode of the neck. A fall associated with the electrocution appears throughout the medical evidence.
Contrary to Dr Casikar’s opinion, Dr Brooder’s 28 October 2019 report also provides evidence of a musculoligamentous injury. Indeed, Dr Brooder considered the majority of the applicant’s symptoms were of musculoligamentous aetiology.
As noted by the applicant’s submissions, Dr Casikar has provided no explanation as to why any musculoligamentous or soft tissue injury in the region of the neck should be seen on an MRI examination of the cervical spine performed more than seven months after the traumatic event.
I am not persuaded by Dr Casikar’s report that the consistent opinion on causation expressed by all of the applicant’s doctors should not be accepted. I am satisfied, having regard to the medical evidence as a whole, that there is a fair climate for the acceptance of those opinions.
I am satisfied that the applicant sustained an injury to the cervical spine, particularly at the C5/C6 and C6/C7 segments, pursuant to ss 4(a) and 4(b)(ii) of the 1987 Act. I am satisfied that the applicant’s employment with the respondent was the main contributing factor to the injury for the purposes of s 4(b)(ii) of the 1987 Act and a substantial contributing factor to the injury for the purposes of s 9A of the 1987 Act.

Proposed surgery

Section 60 of the 1987 Act relevantly provides:
“(1)    If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b)     any hospital treatment be given, or
(c) any ambulance service be provided, or
(d)     any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
What constitutes reasonably necessary treatment was considered in the context of s 10 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[7] where Burke CCJ stated:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[7] (1986) 2 NSWCCR 32 (Rose).

Further, His Honour added:

“1.     Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.      However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3.      Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.      In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”

His Honour considered the relevant factors relating to reasonably necessary treatment under s 60 of the 1987 Act in Bartolo v Western Sydney Area Health Service[8] and stated:

“The question is should the patient have this treatment or not. If it is better that he has it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”

[8] [1997] NSWCC 1.

In Diab v NRMA Ltd[9], to which the parties have referred in these proceedings, Roche DP provided a summary of the relevant principles as follows:
[9] [2014] NSWWCCPD 72.

“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a)     the appropriateness of the particular treatment;
(b)     the availability of alternative treatment, and its potential effectiveness;
(c)     the cost of the treatment;
(d)     the actual or potential effectiveness of the treatment, and
(e)     the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”[10]
[10] At [88] to [90].

Deputy President Roche commented further[11]:
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. 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. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.”
[11] At [86].

An opinion that surgery at the C5/C6 and C6/C7 segments of the applicant’s cervical spine is reasonably necessary has been given by two treating neurosurgeons, Dr Ow-Yang and Dr Khong, as well as the applicant’s medicolegal expert, Dr Dias. Dr Bisley and Dr Puri have also expressed support for the need for surgery.
The respondent’s own expert, Dr Casikar, has expressed the opinion that the surgery proposed was “probably acceptable” based on the radiological findings. Dr Casikar was not persuaded, however, that that pathology was causing any clinically verifiable symptoms in the upper limbs. Dr Casikar’s view of the applicant’s clinical presentation was, however, formed following a consultation through Zoom and is inconsistent with the weight of medical evidence before me. Radicular symptoms and paraesthesia in the left upper limb have been found by multiple doctors with the benefit of physical examination.
The suggestion made by Dr Casikar that the applicant’s psychological symptoms might represent a barrier to a successful surgical outcome is not one that has been taken up by any of the applicant’s doctors.
Although Dr Waser did appear to adopt a more cautious approach to surgery and recommended a further MRI under general anaesthetic in order to confirm the presence of cord compression, all of the other doctors involved in this case, including Dr Casikar, appeared to accept that the existing MRI findings were sufficient to justify the surgery. Dr Khong was bolstered in his opinion by a bone scan showing increased uptake at C5/C6 and C6/C7 and the results of a C7 perineural injection.
There is some difference of opinion in the applicant’s treating evidence as to the appropriate procedure. A different procedure from that now proposed by Dr Khong was recommended by Dr Ow-Yang. The procedure now proposed by Dr Khong has been recommended in order to reduce the risk of adjacent segment disease at C5/C6. This had been a concern identified by Dr Ow-Yang. Although Dr Ow-Yang recommended a discectomy plus rhizolysis and cervical disc arthroplasty, he also gave the opinion that an anterior discectomy and fusion was an appropriate option.
The evidence confirms that the applicant has, in the period since the injurious event, attempted a range of conservative treatment modalities including physiotherapy, massage, medication and injection. Those treatments have not been effective in improving the applicant’s symptoms.
Considering the evidence as a whole and, having regard to the principles identified in the authorities above, I am satisfied that the procedure proposed by Dr Khong, namely a C5/C6 and C6/C7 anterior cervical discectomy and fusion is reasonably necessary as a result of the injury on 11 August 2019.
It is appropriate that there be an order for the respondent to pay the costs of and incidental to the proposed surgery in accordance with s 60 of the 1987Act.

[2022] NSWPIC 12

10 January 2022