Shepherd v Janmina Pty Limited t/as Nowra Classic Cars Detailing

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Shepherd v Janmina Pty Limited t/as Nowra Classic Cars Detailing [2022] NSWPIC 250
APPLICANT:	Brendan Shepherd
RESPONDENT:	Janmina Pty Limited t/as Nowra Classic Cars Detailing
MEMBER:	Anthony Scarcella
DATE OF DECISION:	26 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Whether the right-sided L4/5 fenestration for neurolysis of the transiting L5 nerve root surgery proposed by Dr Peter Moloney is reasonably necessary treatment as a result of the injury sustained by the applicant within the meaning of section 60 of the Workers Compensation Act 1987 (1987 Act); Kooragang Cement Pty Ltd v Bates; Kirunda v State of New South Wales (No 4); Diab v NRMA Ltd; Rose v Health Commission (NSW); Murphy v Allity Management Services Pty Ltd considered and applied; Held- the right-sided L4/5 fenestration for neurolysis of the transiting L5 nerve root surgery proposed by Dr Peter Moloney is reasonably necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent on 17 February 2020 within the meaning of section 60 of the 1987 Act; the respondent is to pay for the costs of and ancillary to the right-sided L4/5 fenestration surgery for neurolysis of the transiting L5 nerve root surgery proposed by Dr Peter Moloney at the gazetted rates.
DETERMINATIONS MADE:	1. The right-sided L4/5 fenestration for neurolysis of the transiting L5 nerve root surgery proposed by Dr Peter Moloney is reasonably necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent on 17 February 2020 within the meaning of section 60 of the Workers Compensation Act 1987.
ORDERS MADE:	2. The respondent is to pay for the costs of and ancillary to the right-sided L4/5 fenestration surgery for neurolysis of the transiting L5 nerve root surgery proposed by Dr Peter Moloney at the gazetted rates.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mr Brendan Shepherd, is a 38-year-old man who was employed by the respondent, Janmina Pty Limited t/as Nowra Classic Cars Detailing (Janmina), as a supervisor and car detailer.
On 17 February 2020, at Janmina’s premises, Mr Shepherd alleges that, whilst polishing a car with a buffer machine, he injured his lumbar spine.
Mr Shepherd lodged a claim for benefits under the Workers Compensation Act 1987 (the 1987 Act) with the insurer of Janmina, Insurance & Care NSW (icare), who acts for the Workers Compensation Nominal Insurer.
On 1 July 2021, Mr Shepherd, through Dr Peter Moloney, neurosurgeon, sought approval from icare to proceed with surgical intervention on the right side of the L4/5 to decompress the L5 nerve root.[1]
[1] Application to Resolve a Dispute at page 15.
On 20 July 2021, icare issued a dispute notice under section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying that the requested right-sided L5/S1 spinal decompression surgery is reasonably necessary treatment within the meaning of section 60 of the 1987 Act and relied on the opinion of Dr Peter Bentivoglio, neurosurgeon.[2] The dispute notice also referred to Dr Bentivoglio not agreeing with Dr Moloney’s proposed right-sided L4/5 decompression procedure because the pathology on MRI was indicative of left sided symptoms of which there were none. The dispute notice noted that, on 5 May 2021, liability was accepted for an aggravation of Mr Shepherd’s lower back condition caused by his employment with Janmina.
[2] Application to Resolve a Dispute at pages 3-7.
Mr Shepherd lodged an Application to Resolve a Dispute (ARD) dated 25 January 2022 in the Workers Compensation Division of the Personal Injury Commission (the Commission) seeking a determination that the lumbar spine decompression procedure recommended by Dr Moloney is reasonably necessary treatment as a result of the injury sustained by Mr Shepherd on 17 February 2020 within the meaning of section 60 of the 1987 Act.

ISSUES FOR DETERMINATION

At the teleconference held before me on 9 March 2022, the parties agreed that the only issue in dispute was whether the right-sided L4/5 fenestration for neurolysis of the transiting L5 nerve root surgery proposed by Dr Peter Moloney is reasonably necessary treatment as a result of the injury sustained by Mr Shepherd on 17 February 2020 within the meaning of section 60 of the 1987 Act.

Matters previously notified as disputed

The issues in dispute were notified in the dispute notice referred to above.

Matters not previously notified

No other issues were raised.

PROCEDURE BEFORE THE COMMISSION

The parties participated in a conciliation conference/arbitration by telephone on 13 April 2022. Mr Stephen Hickey of counsel appeared for Mr Shepherd, instructed by Mr John McGuire, solicitor and Ms Kavita Balendra of counsel appeared for Janmina, instructed by Ms Sana Weis, solicitor.
During the conciliation phase the parties agreed that the correct date of injury was as pleaded in the ARD, namely, 17 February 2020 and not the date that was recorded in the section 78 dispute notice referred to above.
During the conciliation phase, an interlocutory dispute arose, was discussed and could not be resolved. Icare objected to the matter proceeding to an arbitration hearing because Mr Shepherd had not requested approval of the surgical procedure relied on at the hearing, namely, approval for a right-sided L4/5 decompression surgery but rather, had sought approval for a right-sided L5/S1 spinal decompression surgery.
The interlocutory issue was determined by me during the arbitration phase after hearing the oral submissions of the parties and I rejected Janmina’s technical objection and allowed the arbitration hearing to proceed on the grounds provided in my oral reasons.
The oral submissions and my reasons for the determination in respect of the interlocutory issue were sound recorded and the sound recording is available to the parties.
I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertion made in the information supplied. I 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 had sufficient opportunity to explore settlement and that they were 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 25 January 2022 and attached documents;
(b)    Reply to ARD (Reply) dated 2 March 2022 and attached documents, and
(c)    Application to Admit Late Documents (AALD) lodged on behalf of Mr Shepherd dated 5 April 2022 and attached documents.

Oral evidence

Neither party sought leave to adduce oral evidence from or to cross-examine any witness.

Mr Brendan Shepherd’s evidence

In evidence, there is a statement by Mr Shepherd dated 8 September 2021.[3] I will now refer to the relevant parts of that statement.
[3] ARD at pages 1-3.
Mr Shepherd stated that he injured his lumbar spine during the course of his employment with Janmina on 17 February 2020 and that, thereafter, icare paid weekly compensation and treatment expenses. On 20 July 2021, icare denied approval of the lumbar spine surgery recommended by Dr Moloney.
Mr Shepherd stated that, following icare’s denial on 20 July 2021, he attempted to participate in a Solutions Tools & Education for Persistent Pain (STEPP) program arranged by icare’s rehabilitation coordinator. Participation in the program required a 30 minute car trip to Bomaderry. He was in agony by the time he arrived. Within 30 minutes of starting, the program coordinators concluded that he could not proceed and that he should return to his surgeon to undergo the proposed surgery.
Mr Shepherd stated that, on 30 August 2021, he returned to Dr Moloney, who diagnosed him as having suffered two inguinal hernias that were related to his back injury. Again, Dr Moloney advised that he should undergo the proposed spinal decompression before undergoing repair of the hernias.
Mr Shepherd stated that he was in agony and wished to undergo the surgery proposed by Dr Moloney urgently in an attempt to improve his quality of life.
In evidence, there is a statement by Mr Shepherd dated 13 March 2022.[4] I will now refer to the relevant parts of that statement.
[4] AALD at page 1.
Mr Shepherd stated that, in early 2022, he underwent several physiotherapy sessions at Basham Physiotherapy. The treatment did not provide any relief. Dr Moloney referred him to another neurosurgeon, Dr Cherukuri, who agreed that the surgery proposed by Dr Moloney was appropriate and suggested that he undergo a nerve conduction study. There were no reports or clincal records from Dr Cherukuri in evidence.
Mr Shepherd stated that he discussed the proposed nerve conduction study with his general practitioner, Dr Fahim Islam, considered his options and decided not to proceed with it because the last time he underwent such a study he suffered significant pain. Further, he has an aversion to needles and the thought of the pain from such an investigation caused him very significant anxiety.
Mr Shepherd stated that he wished to proceed directly to the surgery proposed by Dr Moloney in an attempt to improve his lifestyle, which was presently unbearable.

The treating medical evidence

On 18 February 2020, Mr Shepherd consulted Dr Nalliah Sasikesavan, general practitioner of the Worrigee Medical Centre.[5] In evidence, there are Mr Shepherd’s Worrigee Medical Centre clincal records.[6] Dr Sasikesavan took a history that Mr Shepherd had been suffering from lower back pain for two to four years that had worsened over the last four days. He was unable to walk and work. The pain radiated into the left lower limb. There was also discomfort in the left testicle. There were no sensations of pins and needles in the lower limbs. Bowel habit was normal. There were no urinary symptoms. On examination, Dr Sasikesavan observed that both lower limbs were neurovascularly intact; tone, reflexes and sensations were normal; and the straight leg raise test was positive with midline spinal tenderness in T12. Dr Sasikesavan requested an ultrasound scan of the scrotum and a CT scan of the lumbosacral spine. Dr Sasikesavan prescribed Lyrica 25mg capsules (one capsule before bed at night); Norflex 100mg tablets (one tablet twice per day); and Panadeine Forte 30mg tablets (two tablets twice per day).
[5] ARD at page 39.
[6] ARD at pages 39-44.
On 24 February 2020, Mr Shepherd underwent a CT scan of his lumbar spine by Dr Simon Hughes, radiologist.[7] Dr Hughes recorded the clinical details as being lower back pain for a few years and left-sided sacroiliac joint tenderness. In respect of the L1/2 - L3/4, Dr Hughes reported that there was shallow bulging of the posterior annulus at each level without significant spinal canal or foraminal narrowing and that there was no facet arthropathy. In respect of the L4/5, Dr Hughes reported mild disc height loss; shallow bulging of the posterior annulus; and no significant spinal canal or foraminal narrowing. In respect of the L5/S1, Dr Hughes reported pseudoarthrosis of the right transverse process with the sacral ala without gross degenerative change; small intervertebral disc; no significant disc protrusion, spinal canal stenosis or foraminal narrowing; and no gross facet arthropathy. Dr Hughes concluded that there were no convincing features of sacroiliitis or nerve root compression.
[7] Reply pages 1-2.
On 25 February 2020, Mr Shepherd consulted Dr Sasikesavan and reported a slight easing of his back pain compared to the previous week.[8] They discussed the findings in the lumbar spine CT scan. Dr Sasikesavan again provided Mr Shepherd with a prescription for Panadeine Forte.
[8] ARD at page 40.
On 10 March 2020, Mr Shepherd consulted Dr Sasikesavan and reported ongoing back pain.[9] Dr Sasikesavan again provided Mr Shepherd with a prescription for Panadeine Forte.
[9] ARD at page 40.
On 11 August 2020, Mr Shepherd presented to Shoalhaven District Memorial Hospital with worsening severe low back pain, was examined and discharged home on pain relieving medication.[10]
[10] ARD at pages 45-86.
On 13 August 2020, Mr Shepherd consulted Dr Islam of the Worrigee Medical Centre complaining of right-sided back pain radiating into the leg with neuropathic pain.[11] Dr Islam noted that Mr Shepherd had attended for a mental health care plan because he was suffering severe anxiety. It was also noted that he had attended an emergency department seeking pain relieving medication for his lower back pain and that he wanted to open a workers compensation claim. On examination, Dr Islam observed that Mr Shepherd’s right lumbar spine was tender and swollen without any deformity; movement was restricted; and the slump test was positive on the right. Psychologically, Dr Islam observed physical and emotional symptoms of anxiety and provided a mental health care plan. Dr Islam prescribed Lyrica 25mg capsules and Panadeine Forte 30mg tablets and provided referrals to Dr Mario Farina (clincal psychologist) and Associate Professor Matthias Jaeger.
[11] ARD at pages 41-42.
On 18 August 2020, Mr Shepherd consulted Dr Sasikesavan for a “work cover certificate”.[12] Dr Sasikesavan took a history of right-sided lower back pain for many years that flared up in February 2020 and was work related in his job as a car detailer with frequent lifting of an electric buffer. The pain was ongoing. There was pain at night. The pain radiated from the lower back into the right lower limb. There was no obvious injury at work but the work did involve a lot of bending and awkward movements as a car detailer. There was no complaint in respect of the left leg. The pain was across the lower lumbar region into the right buttock. On examination, Dr Sasikesavan observed tenderness in the L3 to L5 region and that the straight leg raise test was positive. Dr Sasikesavan prescribed Mobic 7.5mg tablets (one tablet twice per day) and Norgesic 35mg tablets (two tablets twice per day).
[12] ARD at pages 42-43.
On 31 August 2020, Mr Shepherd consulted Dr Islam by telephone requesting a referral for an MRI scan (at the direction of the insurer) and requesting repeats for his regular medication.[13] Dr Islam issued a request for a lumbar spine MRI scan and again prescribed Norgesic tablets.
[13] ARD at page 43.
On 7 September 2020, Mr Shepherd underwent an MRI scan of the lumbar spine by Dr Carolyn Keith, radiologist.[14] Dr Keith concluded that at L4/5, the combination of congenitally short pedicles with shallow annular bulging resulted in mild left lateral recess narrowing which could irritate the descending L5 nerve. At L5/S1, there was a transitional lumbosacral segment with partial sacralisation and pseudo-articulation with an enlarged right transverse process and the adjacent sacral ala, without canal stenosis, lateral recess or foraminal narrowing.
[14] Reply at pages 3-4.
On 7 September 2020, Mr Shepherd consulted Associate Professor Matthias Jaeger, neurosurgeon and spinal surgeon on the referral of Dr Islam.[15] Associate Professor Jaeger recorded the following history:
“Brendan is a 36 yo gentleman who tells me he developed lower back pain and more right gluteal and limb pain in relation to a work injury on 18/2/20. He was cleaning/buffing a car with a 10kg machine in twisting/bending movements when the pain started. Overtime, this has deteriorated and he eventually had to stop work because of pain in August this year. Since then, despite rest, his symptoms have continued to deteriorate. He has undertaken chiropractic visits without much benefit.
Brendan now describes pain over the lower back and the right gluteal area, from where it can travel further down into the leg. Activity often aggravates his pain and he walked into my office with a limp today.”[16]
[15] ARD at page 24.
[16] ARD at page 24.
On examination, Associate Professor Jaeger did not find any clear weakness in the lower limbs. Mr Shepherd claimed right leg weakness but no sensory impairment. Reflexes were present and equal in both upper and lower limbs. There was no myelopathy or cauda equina syndrome. The straight leg raise test was essentially negative and there was no evidence of a significant hip or knee issue. The right gluteal area in the lower back were tender to percussion and palpation. The MRI scan report findings dated 9 September 2020 were age-appropriate. It was a normal scan without any nerve compression issues to explain Mr Shepherd’s symptoms. Associate Professor Jaeger opined that Mr Shepherd required a bone scan of his lumbar spine, hips and pelvis and sought icare’s approval in this regard.
On 9 September 2020, Associate Professor Jaeger reported to icare in response to their email regarding Mr Shepherd dated 8 September 2020.[17] Associate Professor Jaeger reported that he was unable to provide Mr Shepherd with a clear diagnosis as to the cause of his pain at that point in time. He required Mr Shepherd to undergo a bone scan.
[17] Reply at pages 5-6.
On 15 September 2020, Mr Shepherd consulted Dr Islam to discuss his MRI scan results, pain management and the issue of a certificate of capacity.[18] On examination, Dr Islam observed tenderness and restricted movement in the right lumbar spine without swelling. Dr Islam prescribed Panadeine Forte and referred Mr Shepherd to Mr Gerard Basham, physiotherapist.
[18] ARD at page 44.
On 17 September 2020, Mr Shepherd underwent a whole body bone scan by Dr Chris Fessa, radiologist.[19] The clinical history was recorded as back and right gluteal/hip pain. Dr Fessa reported a normal lumbar lordosis; no active discovertebral arthritic changes; and no active facet joint arthritis. Dr Fessa concluded that there was no definite cause for Mr Shepherd’s symptoms.
[19] Reply at page 7.
On 18 September 2020, Mr Shepherd consulted and underwent treatment by a physiotherapist at Basham Physiotherapy.[20] In the Basham Physiotherapy clinical records, the physiotherapist took a history that Mr Shepherd was buffing a car at work when he felt a severe pain across his lower back. He consulted his general practitioner on the following day, underwent a CT scan and went back to work. He was back at work on and off for the past six months. He reported gluteal numbness and pins and needles on both sides with shooting pain down the right side as well as bladder issues.
[20] ARD at pages 89-90.
On 21 September 2020, Mr Shepherd consulted and underwent treatment by a physiotherapist at Basham Physiotherapy. In the clinical records, the physiotherapist recorded that Mr Shepherd “had been going okay”[21] and experienced a period with reduced pain. However, on the weekend, he experienced an incident where he coughed and lost control of his bowels and ended up soiling his underpants. The physiotherapist recommended that Mr Shepherd consult his doctor about the incident as soon as possible.
[21] ARD at page 89.
On 28 September 2020, Mr Shepherd consulted and underwent treatment by a physiotherapist at Basham Physiotherapy. In the clinical records, the physiotherapist recorded that Mr Shepherd was still in a lot of pain but had not experienced any episodes of incontinence since his last visit. He was very anxious, upset and annoyed at the pain and it brought him to tears.[22]
[22] ARD at page 88.
On 2 October 2020, Mr Shepherd consulted Associate Professor Jaeger, who reported to Dr Islam that Mr Shepherd described worsening back and leg pain; repeated episodes of bowel incontinence; shooting pains with numbness down both legs, the right more than the left; and that he walked into his office with a limp.[23] He noted that Mr Shepherd’s mental health had deteriorated since his last consultation. He commented that the recent bone scan of the lumbar spine and pelvis area was normal. Associate Professor Jaeger opined that Mr Shepherd required further investigations in the form of an electromyography (EMG) and nerve conduction study (NCS) and he referred him to Associate Professor Carmody in this regard.
[23] ARD at page 25.

On 2 December 2020, Associate Professor Jaeger reported to icare in response to its correspondence dated 28 September 2020.[24] Associate Professor Jaeger reported that Mr Shepherd’s clinical signs were of back pain and a subjective sensation of pain down both legs. The MRI and bone scans did not demonstrate any structural abnormality to explain Mr Shepherd’s symptoms. He suggested an EMG and NCS to investigate further. However, those results were pending. Based on the available results, he was unable to see any operative surgical treatment options for Mr Shepherd. He opined that Mr Shepherd may require pain management review.
[24] Reply pages 9-10.
On 16 December 2020, Mr Shepherd was scheduled to undergo an EMG and an NCS by Associate Professor John Carmody.[25] Associate Professor Carmody reported that Mr Shepherd’s NCS was normal despite limited tolerance of stimuli and that there was no evidence of a lower limb neuropathy. Associate Professor Carmody reported that Mr Shepherd declined to undergo an EMG.
[25] Reply at page 11.
On 16 March 2021, Mr Shepherd consulted Dr Paul Ferris, pain medicine specialist, on the referral of Dr Islam. Dr Ferris reported to Dr Islam that Mr Shepherd suffered with chronic mechanical low back pain and radicular pain of right L5/S1 distribution after a work-related injury, associated with a L4/5 lateral canal stenosis and L5 nerve root impingement on a background of anxiety.[26]
[26] Reply at pages 18-20.
Dr Ferris took a history which was consistent with the evidence. He recorded that Mr Shepherd complained of pain in the lower lumbar region down the right leg in the L5/S1 distribution and in the scrotum. Pain was exacerbated by prolonged sitting, straining with stools or urine and could occur spontaneously. On examination, Dr Ferris observed that Mr Shepherd was sitting uncomfortably and leaning to his left throughout the consultation; he had an antalgic gait; he had well-maintained extension and lateral flexion but extension with rotation to the right exacerbated the pain; he had normal power in his limbs; he had a normal slump test; and he was tender over the L5/S1 spinous processes.
Dr Ferris provided Mr Shepherd with some education regarding the nature of chronic pain together with some resources in this regard. He encouraged Mr Shepherd to engage in a graded active exercise program, including walking and hydrotherapy and to re-engage with social activities, such as fishing with his daughter. Dr Ferris suggested that Mr Shepherd consult a psychologist on the referral of Dr Islam. Dr Ferris offered to perform an epidural steroid injection under sedation and Mr Shepherd was to consider that option. Dr Ferris opined that Mr Shepherd may be a candidate for a multidisciplinary pain program (the STEPP program).
On 10 May 2021, Mr Shepherd presented to Shoalhaven District Memorial Hospital complaining of acute lower back pain with right sciatic pain. He was examined and discharged home with pain relieving medication.[27]
[27] ARD at pages 45-86.
On 31 May 2021, Mr Shepherd underwent an MRI scan of his lumbar spine by Dr Elissa Botterill, radiologist.[28] Dr Botterill recorded the clinical details as being pain in the lumbosacral spine travelling into the left leg, query radiculopathy. In respect of the L1/2 to the L4/5, there was no significant posterior disc bulge, protrusion or extrusion; there was minimal facet joint arthropathy; and there was no spinal canal or neural exit canal narrowing. In respect of the L5/S1, there was mild narrowing of intervertebral disc height with mild disc bulge; mild bilateral facet joint arthropathy; mild narrowing of the left lateral recess, with mild impingement of the traversing left S1 nerve root.
[28] ARD at pages 32-33.
On 7 June 2021, Mr Shepherd consulted Dr Peter Moloney, neurosurgeon and spine surgeon, on the referral of Dr Islam. Dr Moloney took a history that was consistent with the evidence. Mr Shepherd reported symptoms of low back pain, right-sided groin and scrotal pain; and pain into the thigh, lateral aspect of the calf over the dorsum over the foot to the great toe. Dr Moloney noted that Associate Professor Jaeger referred Mr Shepherd for conduction studies after reviewing the results of an MRI scan. However, Mr Shepherd informed him that because of the pain he was experiencing during the conduction studies, the EMG aspect of the investigation could not be performed. Dr Moloney noted that Mr Shepherd continued to suffer with back and leg pain in what appeared to be an L5 dermatomal distribution.
Dr Moloney reported that his physical examination of Mr Shepherd revealed that it was very hard for him to move about due to pain. The MRI scan showed the possibility of there being some L5 irritation on the right side in the lateral recess at L4/5. He recommended that Mr Shepherd undergo some injection therapy in the form of local anaesthetic and cortisone into the epidural space on the right side at the L4/5. Dr Moloney explained that the idea of the injection was to, firstly, apply local anaesthetic about the nerve root to ascertain whether there was any even short-term relief of symptoms, indicating a positive diagnostic effect and secondly, some ongoing benefit from the cortisone decreasing inflammation to give a therapeutic effect. Dr Moloney sought approval from icare for Mr Shepherd to undergo a block and cortisone injection.
On 22 June 2021, Mr Shepherd underwent an L4/5 epidural injection by Dr Moloney.[29] On 28 June 2021, Dr Moloney reported to Dr Islam that he had carried out a right-sided epidural injection of local anaesthetic at the L4/5 for Mr Shepherd. Mr Shepherd informed him that, in the immediate period following the injection, his pain was under very much better control. In Dr Moloney’s opinion, that outcome indicated a positive diagnostic effect. However, Mr Shepherd’s wife had been in touch with Dr Moloney’s office to advise that the pain had recurred.
[29] ARD at pages 16-17.
On 27 June 2021, Mr Shepherd presented to Shoalhaven District Memorial Hospital complaining of increasing lower back pain following a recent L4/5 epidural injection. He also complained of shooting nerve pain down the right arm, tingling in the right hand and down the right leg to his toes. He was examined and Endone was administered. He was discharged home on medication.
On 28 June 2021, Mr Shepherd consulted Dr Moloney, who reported to Dr Islam that the L4/5 epidural injection gave good transient relief whilst the local anaesthetic was working but unfortunately, the cortisone had not provided ongoing relief.[30] Dr Moloney opined that the injection result represented a diagnostic positive but a therapeutic negative. In view of Mr Shepherd’s quite severe pain and failure to respond to the normal conservative modalities of treatment, including cortisone injection, Dr Moloney recommended that Mr Shepherd undergo a decompression of the L5 nerve root on the right side. Dr Moloney proposed a right L5/S1 fenestration for neurolysis of the L5 nerve root. It appeared that Dr Moloney’s reference to a right L5/S1 fenestration for neurolysis of the L5 nerve root was an error because, in his letter to icare dated 1 July 2021, he sought approval for surgical intervention on the right side at L4/5 to decompress the L5 nerve root.[31]
[30] ARD at pages 13-14.
[31] ARD at page 15.
On 14 July 2021, Mr Shepherd presented to Shoalhaven District Memorial Hospital with severe low back pain radiating down his right leg.[32] The hospital records noted that Mr Shepherd was incontinent of urine in the waiting room. The records also noted that Mr Shepherd awaited insurer approval for surgical decompression at L5/S1 and that he had experienced intractable pain and urinary urgency since August 2020. The medical officer opined that the current trigger of pain crisis was likely related to having sat in an awkward position watching television. Hospital staff administered Endone and Diazepam and Mr Shepherd was discharged home.
[32] ARD at pages 45-86.
On 20 July 2021, Dr Ferris responded to a letter from icare dated 16 July 2021, advising that he agreed with Associate Professor Jaeger’s and Dr Peter Bentivoglio’s treatment recommendations.[33] He agreed that a multidisciplinary pain management program was required prior to any surgical intervention and noted that the STEPP program had been approved. Dr Ferris opined that surgical intervention was not required at that stage.
[33] Reply at page 37.
Ms Rowena Field, physiotherapist, prepared the STEPP program physiotherapy initial report dated 28 August 2021.[34] She took a history that was consistent with the evidence. She noted that Mr Shepherd presented to the STEPP assessment in extreme distress and pain. He had difficulty standing and sitting and reported that his back, groin and leg pain was out-of-control. Any sort of activity set off an extreme pain response frequently. He had experienced urinary and bowel incontinence. He was quite agitated and teary at various times during the combined case conference. He was not in a suitable state to complete an extensive physiotherapy assessment.
[34] Reply at pages 38-43.
Ms Field concluded that, based on the combined assessment conducted, Mr Shepherd was not considered suitable to participate in the physical portion of the STEPP program at that point in time. She noted that Mr Shepherd was very focused on a surgical outcome to address his problems and that he was not in a place psychologically or physically where he could engage in learning other skills. She opined that he would significantly benefit from psychological intervention to help shift his beliefs toward engaging in other pain management options. Ms Field further opined that Mr Shepherd would potentially benefit from the physical program after the issue of required surgery is resolved and advised that she would be happy to reassess him at that time.
Ms Felicity Slevin, psychologist, prepared the STEPP program initial psychology report dated 10 September 2021.[35] Ms Slevin took a history that was consistent with the evidence. She noted that Mr Shepherd participated in the psychology assessment on 27 August 2021 and 8 September 2021. He presented at the first appointment with a high level of pain behaviour, groaning and wincing and reporting his pain to have been aggravated earlier in the day. He was tearful for prolonged periods and appeared to have difficulty with most postures he tried. After taking medication, his pain had noticeably improved by the completion of the assessment. The second assessment was completed by telephone where he presented in much the same level of pain and improved by the completion of the session.
[35] Reply at pages 44-46.
Ms Slevin concluded that Mr Shepherd had presented with a complex mix of psychological and physical symptoms but would benefit from a multidisciplinary approach. However, there were barriers to Mr Shepherd achieving success with the program, namely, the severity of his distress when in pain and his very strong belief that surgical intervention was the only solution to his pain. Mr Shepherd’s psychological presentation was currently one of acute stress/grief reaction to the breakdown of his family and as such, it was unlikely that he would have the cognitive capacity or the willingness to absorb the pain neuroscience that formed the foundation of the program. As such, Ms Slevin opined that Mr Shepherd was not a suitable candidate for the STEPP program at that time. However, she opined that his acute state of distress warranted ongoing and intensive psychological intervention.
In response to a letter dated 16 November 2021, Dr Moloney reported to Mr Shepherd’s lawyers on 15 December 2021.[36] Dr Moloney reported Mr Shepherd’s complaints of low back pain radiating into the right leg down to the foot with pain and paraesthesiae to the right great toe. An MRI scan revealed a congenitally small canal with a broad-based disc bulge at L4/5, marginally worse to the left side. In view of the convincing radiation for an L5 root lesion on the right side, he performed a right L5 block with local anaesthetic and the installation of cortisone. The block gave rise to relief of symptoms for as long as the local anaesthetic lasted. On that basis, Dr Moloney made a diagnosis of compression or, at least, irritation to the right L5 nerve root at the L4/5 level. Conservative modalities of treatment, including pain management under the care of Dr Ferris had been unsuccessful. On that basis, he requested authorisation to carry out a fenestration operation on the right side at L4/5 in order to carry out a neurolysis of the transiting L5 nerve root. It had always been Dr Moloney’s understanding that the difficulty in obtaining approval for the proposed surgery was that the pathology appeared to be more to the left side rather than the right side. Dr Moloney stated that the history he had taken and the requests he had made were correct and that Dr John Sheehy’s report was in error.
[36] ARD at pages 11-12.
On 10 January 2022, Mr Shepherd consulted and underwent treatment by a physiotherapist at Basham Physiotherapy. In the clinical records, the physiotherapist recorded that Mr Shepherd reported intense pain in the groin and lower back for about 1.5 years. A specialist had recommended surgery but the insurer has declined. Mr Shepherd described the pain as an intense burning and shooting down the left limb and that he experienced trouble going to the bathroom. There was hypersensitivity to pressure. On examination, the physiotherapist observed tenderness in the hips and lower back globally; hypersensitivity on palpation and neural test sensation; an inability to stand erect; and an altered antalgic gait pattern.[37]
[37] ARD at pages 87-88.
On 18 January 2022, Mr Shepherd consulted and underwent treatment by a physiotherapist at Basham Physiotherapy. In the clinical records, the physiotherapist recorded that Mr Shepherd had complained that his intense pain had not settled. He had undergone a hydrotherapy program but was still in a lot of pain. Nothing eased the pain for very long.[38]
[38] ARD at page 87.
On 10 March 2022, Mr Heath Turner, physiotherapist of Basham Physiotherapy, provided a report addressed “to whom it may concern”.[39] Mr Turner repeated the history referred to in the entries in the Basham Physiotherapy clinical records. Mr Turner stated that his first impression was one of a severe disc bulge causing compression on a nerve root giving Mr Shepherd radicular pain in the lower limbs. In respect of treatment, Mr Turner reported that it consisted only of hands-on manual therapy and hydrotherapy. As it became obvious that Mr Shepherd’s pain was so irritable that he would not respond to manual therapy, he transitioned him to hydrotherapy immediately. In the three sessions Mr Turner had with Mr Shepherd, he did not see a lot of progress in either the reduction of pain or the increase of function.
[39] AALD at page 2.
Mr Turner diagnosed an L4/5 disc bulge with nerve entrapment/irritation causing radicular pain. In respect of prognosis, he opined that conservative intervention was unlikely to result in a significant change to either his pain or function. In respect of the issue of surgical intervention, Mr Turner noted that Dr Moloney had proposed a fenestration to the L4/5 on the right side and opined:
“All I have to go of [sic - on] in regards to if the surgical intervention would be successful is Mr Shepherd’s current function and pain, which is poor. I do believe that if there is still no improvement, or after another few sessions with Mr Shepherd if there continues to be no improvement, then yes surgical intervention may be warranted.”[40]
[40] AALD at page 2.
On 10 March 2022, Dr Islam provided a short report addressed “to whom it may concern” as follows:
“Mr Brendon Shepherd has been a patient of our practice since 02/02/2009 and he is under my care for the last 18 months. He has been suffering from back pain, bilateral inguinal hernias and severe anxiety due to work cover related complications. He had a lot of scan [sic - scans] and investigations in the last 18 months. He has severe pain in his lumbar spine and anxiety with panic attacks which make [sic - it] very hard for him to go for further investigations. I would appreciate it if you could consider his circumstance.”[41]

The forensic medical evidence

[41] AALD at page 3.

Dr John Sheehy

On 10 December 2020, Mr Shepherd consulted Dr John Sheehy, neurosurgeon, at the request of his lawyers. In evidence, there is a report by Dr Sheehy dated 20 December 2020.[42] I will now refer to the relevant parts of that report.
[42] Reply at pages 12-17.
Dr Sheehy took a history that was consistent with the evidence. Dr Sheehy reported that Mr Shepherd complained of low back pain and of pain radiating into the medial aspect of his right leg, also affecting the right buttock and the posterior aspect of the right calf. At times, the pain could radiate into the right big toe. He complained of altered feeling and reduced feeling in the right leg, especially distally and complained of persisting bilateral buttock numbness. He had experienced several accidents with his bladder. He has urinary urgency. There had been two accidents with his bowel.
Dr Sheehy reviewed the medical imaging referred to above.
On examination, Dr Sheehy observed that straight leg raising was 80° on the left and 70° on the right; tone and power in the legs were normal; knee jerks were brisk; ankle jerks were brisk as there was no clonus in either ankle and the left plantar response was clearly flexible and the right was equivocal; there was limitation in the terminal 20° of lumbar flexion and extension was painful at the extremes of movement; he experienced reduced appreciation of light touch distally in the right leg; and there was hyperaesthesia to pin prick over the foot, in the lateral calf and over the posterior thigh.
Dr Sheehy opined that there may be a soft tissue injury of the lumbar spine. However, in view of his findings on examination, he thought it best for Mr Shepherd to undergo magnetic resonance imaging in order to establish a definite diagnosis.

Dr Peter Bentivoglio

On 22 February 2021, Mr Shepherd consulted Dr Peter Bentivoglio, neurosurgeon, at the request of icare. In evidence, there is a report by Dr Bentivoglio dated 1 March 2021.[43] I will now refer to the relevant parts of that report.
[43] Reply at pages 21-25.
Dr Bentivoglio took a history that was consistent with the evidence.
Mr Shepherd informed Dr Bentivoglio that his lower back pain went into the right leg to the right big toe and into his left testes associated with numbness and pins and needles in his right leg. The left leg was not a problem.
In respect of his present condition, Mr Shepherd informed Dr Bentivoglio that he rated his lower back pain at anywhere between 5 and 10 out of 10 on the visual analogue scale (AVS). He rated his right leg pain at between 7 and 10 out of 10 on the AVS. He informed Dr Bentivoglio that walking was restricted to 5 to 10 minutes; sitting was restricted to 10 minutes; driving was restricted to 10 to 20 minutes; mowing the lawn took him a long time; he was unable to perform any heavy household duties; bladder function was normal; bowels were normal, although straining caused lower back pain; and his right leg was weak.
Dr Bentivoglio’s working diagnosis in respect of Mr Shepherd was one of mechanical axial back pain, probably related to a disc problem at the L4/5 level but with no evidence of a radiculopathy or myelopathy. MRI and CT scans demonstrated disc changes at the L4/5.
Dr Bentivoglio opined that the nature of Mr Shepherd’s employment, which caused a lot of repetitive bending, twisting and heavy lifting, could easily have caused an injury to the disc in his back. Based on the history provided to him, Dr Bentivoglio did not believe that there was a pre-existing degenerative disease in Mr Shepherd’s lumbar spine. He then went on to opine that, undoubtedly, the injury caused Mr Shepherd to develop back pain related to a disc injury at the L4/5 level and that such aggravation had not ceased.

Dr Bentivoglio opined that Mr Shepherd’s condition had not resolved. He continued to suffer back pain and right leg pain. The treatment received had not been adequate. He had not had significant physiotherapy or any hydrotherapy. He had not undergone cortisone injections. He had not consulted a pain clinic. There were many conservative options available that had not been undertaken.
On 15 July 2021, Dr Bentivoglio prepared a supplementary report at the request of icare.[44] Icare provided Dr Bentivoglio with copies of reports by Dr Ferris and Dr Moloney.
[44] Reply at pages 34-36.
Dr Bentivoglio noted that Dr Ferris recommended a pain management program commencing in August 2021. He opined that Mr Shepherd had not exhausted conservative treatment because he had not undergone his pain management program. He further noted that Mr Shepherd had not undergone significant therapy sessions to assist in relieving his symptoms.
Dr Bentivoglio observed that the MRI scan dated 31 May 2021 demonstrated lateral recess narrowing on the left side at L4/5, not on the right side. Mr Shepherd had never experienced any left leg pain. According to the MRI scan, pathology and symptoms should be on the left side, not the right side. Dr Bentivoglio did not agree with Dr Moloney’s recommendation for a right L4/5 decompression when the pathology on the MRI scan was on the left side and Mr Shepherd had no symptoms on the left side. Dr Bentivoglio opined that Mr Shepherd was unlikely to benefit from the surgery proposed by Dr Moloney. Dr Bentivoglio did not understand how the proposed surgery was going to benefit Mr Shepherd at all in view of the MRI scan findings.
Dr Bentivoglio noted that Mr Shepherd’s nerve conduction studies were normal and that he did not undergo the EMG studies. Therefore, the study was incomplete.
Dr Bentivoglio observed that the findings identified from the L4/5 epidural injection did not disclose any evidence of a radiculopathy or myelopathy. The fact that Mr Shepherd got a positive result from the local anaesthetic and the L4/5 epidural injection means that it affected the left side as well as the right side.
Dr Bentivoglio opined that the MRI scans performed on 7 September 2020 and 31 May 2021 found that the lateral recess disease and narrowing was on the left side and not on the right side.
Dr Bentivoglio opined that Mr Shepherd, at least, needed to undergo the multidisciplinary pain management program before any operative intervention is undertaken on his right side when the pathology on the MRI scan seems to be on the left side.

Dr John Sheehy

On 14 October 2021, Mr Shepherd again consulted Dr Sheehy at the request of his lawyers. The consultation was conducted on an audio-visual platform and a physical examination of Mr Shepherd was not possible. In evidence, there is a report by Dr Sheehy dated 15 October 2021.[45] I will now refer to the relevant parts of that report.
[45] ARD at pages 34-38.
Dr Sheehy recorded Mr Shepherd’s present complaints to include needing a mobility scooter to get about; significant ongoing low back pain and pain in the coccygeal region; electric shock sensations radiating into the right leg; almost constant severe testicular pain; cramping in the fingers of both hands and extensive areas of joint pain; and bladder accidents.
In respect of medication, Mr Shepherd informed Dr Sheehy that he was using Lyrica at one stage as part of his pain management. However, after consulting Dr Ferris, that medication was ceased and he was commenced on Panadeine Forte and a laxative. He takes Nurofen at times and at other times, Endone with an occasional Valium.
Dr Sheehy noted that Mr Shepherd had been involved in the STEPP program but that it had worsened his condition.
Dr Sheehy reviewed the medical imaging, in particular, the MRI scan report dated 1 June 2021 (performed on 31 May 2021). He noted that the study reported mild narrowing of the intervertebral disc at L5/S1 with mild disc bulging and mild bilateral facet arthropathy, which in combination caused a mild narrowing of the left lateral recess with mild impingement of the traversing left S1 nerve root.
Dr Sheehy referred to Dr Ferris’ report dated 7 June 2021 and Dr Moloney’s reports dated 10 June 2021 and 3 September 2021, the latter recommending decompression of the L5 nerve on the right side at the L4/5 level.
Dr Sheehy noted that Mr Shepherd had undergone an extensive program of treatment including physiotherapy, various medications and the commencement of a STEPP program.
In respect of prognosis, Dr Sheehy noted that Mr Shepherd had been symptomatic for more than one year and opined that his prognosis for improving beyond the present point was remote.
In respect of the need for ongoing treatment, Dr Sheehy referred to the extensive program of conservative management mentioned earlier in his report. He noted that Mr Shepherd complained predominantly of low back pain with some pain in either leg, especially the right leg. The medical imaging demonstrated lateral recess stenosis on the left at L5/S1. Dr Sheehy opined that Mr Shepherd will need to continue avoiding bending and lifting. He further opined that Mr Shepherd requires rheumatological review in respect of his multifocal joint pains and urological review concerning the constant testicular pain. He will need to continue in a gentle exercise program avoiding bending and lifting.
On 9 November 2021, Dr Sheehy provided a supplementary report at the request of Mr Shepherd’s lawyers.[46] Dr Sheehy again confirmed that Mr Shepherd’s MRI imaging demonstrated compression of the left S1 nerve root at the L5/S1 level. He had undergone spinal injections and attempted to participate in the STEPP program without success. Dr Sheehy opined that a decompression of the left S1 nerve root at the L5/S1 level is reasonable and necessary as a consequence of the workplace injury on 17 February 2020.
[46] ARD at pages 30-31.
On 19 November 2021, Dr Sheehy provided a further supplementary report at the request of Mr Shepherd’s lawyers.[47] Dr Sheehy noted that Mr Shepherd’s MRI scan reports reported a disc disruption on the left with compression of the nerve root. He referred to a reference in Dr Moloney’s correspondence to a decompression of the right L5 nerve at the L4/5 level. In this regard, Dr Sheehy stated:
“I do not have the benefit of seeing the films themselves, just the report. The report does not describe compression of the right. Clarification should be sought from Dr Moloney as to whether he has seen some change that the radiologist has not reported and for this reason wishes to decompress the right-sided lumbar nerve root.”[48]
[47] ARD at pages 32-33.
[48] ARD at page 32.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties. I will summarise the parties’ principal submissions.

Mr Shepherd’s submissions

In respect of the proposed surgery being reasonably necessary, Mr Shepherd relied on the principles established in Diab v NRMA Ltd[49] (Diab).
[49] Diab v NRMA Ltd [2014] NSWWCCPD 72.
Mr Shepherd’s counsel, Mr Hickey, methodically reviewed the medical and other evidence I have already summarised above.
The findings in respect of the L4/5 and descending L5 nerve in the MRI scan report dated 9 September 2020 provided support for the surgery proposed by Dr Moloney.
Mr Shepherd had an explanation for not undergoing the EMG with Dr Carmody and for not wanting to attempt it again. He participated in the nerve conduction study. He underwent several sessions of physiotherapy with Basham Physiotherapy and the treatment did not provide any relief for very long. Mr Shepherd’s evidence in this regard was corroborated by Mr Turner of Basham Physiotherapy and Dr Islam.
Another matter for consideration is the prospect that the proposed surgery may alleviate the need for the strong medication Mr Shepherd is currently taking.
In his report dated 15 October 2021, Dr Sheehy’s diagnosis was inconclusive because he felt there was a need for further investigation. In his report dated 9 November 2021, Dr Sheehy referred to a decompression at a level (L5/S1) not proposed by Dr Moloney. Dr Sheehy did not have or did not refer to the outcome of the L4/5 epidural injection. In this respect, Dr Sheehy was somewhat hamstrung in providing an opinion because he did not know why Dr Moloney proposed a decompression at the L4/5. In his report dated 19 November 2021, Dr Sheehy suggested that clarification should be sought from Dr Moloney as to whether he had seen some change that the radiologist had not reported and for that reason, wished to decompress the right-sided lumbar nerve root. Dr Moloney clarified the basis for the proposed surgery in his report dated 15 December 2021.
The MRI scan report dated 1 June 2021, appeared to be at odds with the MRI scan report dated 9 September 2020, in that, the former report found that there was no significant posterior disc bulge, protrusion, extrusion or spinal canal or neural exit canal narrowing. In any event, Dr Moloney has determined the level of the offending pathology to be at L4/5, which was supported by the outcome of the L4/5 epidural injection. The outcome of the L4/5 epidural injection was the significant diagnostic tool used by Dr Moloney to zero in on the L4/5 as being the discrete level for surgical attention.
There is a tension between Dr Moloney and Dr Bentivoglio, in that, Dr Bentivoglio asserted that the proposed surgery was unlikely to resolve Mr Shepherd’s pain because the offending pathology seemed to be on the left side of the disc and his symptoms were right-sided. However, Dr Moloney provided an explanation for the proposed surgery in his report dated 15 December 2021. Dr Moloney clearly considered the fact that the pathology appeared to be more on the left side rather than the right side. However, for the reasons stated in his reports, he diagnosed a compression or at least, an irritation to the right L5 nerve root at the L4/5 level. Dr Moloney is the treating surgeon and he has conducted the clinical and surgical tests confirmed by a diagnostic tool (the L4/5 epidural injection).

Janmina’s submissions

Janmina relied on the reports of Dr Bentivoglio and submitted that the surgery proposed by Dr Moloney is not reasonably necessary.
In his report dated 1 March 2021, Dr Bentivoglio diagnosed Mr Shepherd as having mechanical lower back pain secondary to a disc problem at the L4/5 level. He opined that Mr Shepherd’s condition had not resolved and that he still had back pain and right leg pain. The treatment received had not been adequate.
Janmina conceded that Mr Shepherd had undergone some physiotherapy and hydrotherapy and attempted pain management. On 10 March 2022, Mr Turner recommended that further physiotherapy was warranted prior to surgical intervention.
In his report dated 15 July 2021, Dr Bentivoglio pointed out that the MRI scans indicated pathology on the left side, which was inconsistent with the proposed surgery. Mr Shepherd had no symptoms on the left side. The fact that Dr Moloney got a positive result from the local anaesthetic and the L4/5 epidural injection meant that it affected the left side as well as the right side. That was Dr Bentivoglio’s explanation as to why there was some limited diagnostic success in respect of the epidural injection.
The surgery proposed by Dr Moloney is contra indicated by the MRI scans, in that, the pathology is left-sided.
Dr Sheehy provided a report that did not deal with the surgery proposed by Dr Moloney. Dr Sheehy considered the same MRI reports that were considered by Dr Moloney and Dr Bentivoglio and came to a completely different conclusion as to the appropriate surgery. Therefore, it is not clear from the reports in evidence that the proposed surgery is reasonably necessary.
The surgery proposed by Dr Moloney is not reasonably necessary because there is no pathology in the particular area proposed and it appears that there is still potential for further conservative treatment, which should be exhausted prior to any surgical intervention.

FINDINGS AND REASONS

Is the proposed surgery reasonably necessary as a result of the accepted work injury?

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 section 60 of the 1987 Act in respect of any such proposed treatment or service. In this case, the proposed treatment is the right-sided L4/5 fenestration and neurolysis of the transiting L5 nerve root surgery proposed by Dr Moloney.
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 Moloney is reasonably necessary treatment as a result of the injury sustained by Mr Shepherd on 17 February 2020.
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[50] (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)[51] (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.
[50] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796.
[51] Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45 at [136].
Murphy v Allity Management Services Pty Ltd[52] 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 section 60 of the 1987 Act. Mr Shepherd 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.
[52] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
Turning to the “reasonably necessary” element, Roche DP in Diab set out the “standard” test adopted for determining if medical treatment is reasonably necessary in Rose v Health Commission (NSW)[53] (Rose) and he noted subsequent appellate authority with respect to the use of the words “reasonably necessary”.
[53] Rose v Health Commission (NSW) (1986) 2 NSWCCR 32.
Roche DP’s observations in Diab of the words “reasonably necessity”, 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; 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

I now turn to the application of the relevant legislation and the legal principles referred to above to the evidence in this matter.
There is no dispute that Mr Shepherd sustained an injury to his lumbar spine arising out of or in the course of his employment with Janmina on 17 February 2020.
It is not uncommon in cases such as this, to have a divergence of medical opinion, as to whether the particular surgery is reasonably necessary to address the pathology in the injured worker’s lumbar spine that is causative of his symptoms. It was certainly a live dispute as to whether Mr Shepherd’s right-sided symptoms were consistent with the left sided pathology disclosed in the medical imaging.
I accept Mr Shepherd as a witness of truth, who did his best to provide a history of his injuries, his treatment and his complaints of symptoms to his various treating doctors and the forensic medical specialists. The histories he provided of injury, treatment and complaints of symptoms were, in the main, consistent over the 27 months since injury.
I accept that Mr Shepherd suffers from the severe pain complained of to his treating medical practitioners and the forensic medical specialists. I accept Mr Shepherd’s complaints of low back pain radiating into the right leg down to the foot with pain and paraesthesiae to the right great toe, with occasional symptoms in the left leg. I accept that, on occasions, any sort of activity can set off an extreme exacerbation of pain. Mr Shepherd has presented to the Shoalhaven District Memorial Hospital on four occasions when he has experienced such extreme exacerbations of pain (11 August 2020, 10 May 2021, 27 June 2021 and 14 July 2021). The treating medical evidence refers to the potent medications on which Mr Shepherd has been reliant to control his pain since the injury on 17 February 2020. Such medication included Lyrica, Norflex, Panadeine Forte, Mobic, Norgesic and Valium.
I accept that Mr Shepherd has suffered urinary urgency, occasional urinary incontinence and on one occasion, faecal incontinence. An episode of urinary urgency and incontinence was corroborated in the Shoalhaven District Memorial Hospital clinical records entry on 14 July 2021.[54]
[54] ARD at page 53.
I accept that Mr Shepherd has undergone the five sessions of physiotherapy and hydrotherapy evidenced in the Basham Physiotherapy clinical records. I accept Mr Shepherd’s evidence and Mr Turner’s evidence that the treatment did not result in the reduction of pain or an increase in function. Mr Turner diagnosed an L4/5 disc bulge with nerve entrapment/irritation causing radicular pain. He opined that the prognosis through conservative intervention was unlikely to significantly change Mr Shepherd’s pain levels or function.
On 16 December 2020, Mr Shepherd was scheduled to undergo an EMG and an NCS by Associate Professor Carmody. Associate Professor Carmody reported that Mr Shepherd’s NCS was normal despite limited tolerance of stimuli and that there was no evidence of a lower limb neuropathy. Associate Professor Carmody reported that Mr Shepherd declined to undergo an EMG. In this regard, I accept Mr Shepherd’s explanation to Dr Moloney that he did not proceed with the EMG because of the pain he experienced during the NCS. I accept Mr Shepherd’s evidence that he has considered making another attempt to undergo an EMG and that, after having discussed it with Dr Islam, decided not to proceed. I accept Mr Shepherd’s evidence that, when he previously underwent a similar study, he suffered significant pain. I also accept his evidence that he has an aversion to needles and that the thought of the pain from such investigation causes him significant anxiety. Dr Islam corroborated Mr Shepherd’s anxiety and panic attacks in respect of his lumbar spine pain, which made it very hard for him to undergo medical investigations.

On 22 June 2021, Mr Shepherd underwent a right-sided epidural injection at the L4/5 by Dr Moloney. Dr Moloney performed a right L5 block with local anaesthetic and the installation of cortisone. The unchallenged evidence is that the block gave rise to relief of symptoms for as long as a local anaesthetic lasted. Dr Moloney opined that the injection result represented a diagnostic positive but a therapeutic negative.
In August/September 2021, Mr Shepherd attempted to participate in a multidisciplinary pain management program, known as the STEPP program. I accept Mr Shepherd’s evidence that he was in severe pain by the time he arrived at the assessment venue in Bomaderry. Mr Shepherd’s evidence in this regard was corroborated by Ms Field and Ms Slevin of the STEPP program in their respective reports. Ms Field opined that Mr Shepherd would potentially benefit from the STEPP program after the issue of the required surgery was resolved. Ms Slevin opined that Mr Shepherd was not a suitable candidate for the STEPP program at the time of her assessment.
The CT scan of Mr Shepherd’s lumbar spine on 24 February 2020 demonstrated a mild disc height loss, shallow bulging of the posterior annulus and no significant spinal canal or foraminal narrowing. The MRI scan of Mr Shepherd’s lumbar spine on 9 September 2020 disclosed that, at the L4/5, the combination of congenitally short pedicles with shallow annular bulging resulted in mild left lateral recess narrowing, which could irritate the descending L5 nerve. Mr Shepherd’s whole body bone scan on 17 September 2020 concluded that there was no definite cause for his symptoms. The MRI scan of Mr Shepherd’s lumbar spine on 31 May 2021 concluded that there was no significant posterior disc bulge, protrusion or extrusion; there was minimal facet joint arthropathy; and there was no spinal canal or neural exit canal narrowing.
I am satisfied that the surgical procedure proposed by Dr Moloney on 1 July 2021 was a right L4/5 fenestration for neurolysis of the L5 nerve root, rather than a right L5/S1 fenestration for neurolysis of the L5 nerve root. Dr Moloney’s letter to icare dated 1 July 2021 referred to surgical intervention on the right side at L4/5 to decompress the L5 nerve root. It was Dr Moloney’s letter to Dr Islam dated 1 July 2021 that referred to a proposed right L5/S1 fenestration for neurolysis of the L5 nerve root. In his report dated 15 December 2021, Dr Moloney made it clear that the surgical intervention he proposed was a right L4/5 fenestration for neurolysis of the L5 nerve root.
In his report dated 15 December 2021, Dr Moloney provided his path of reasoning that led to his conclusion that Mr Shepherd would benefit from a right L4/5 fenestration for neurolysis of the L5 nerve root. He referred to the MRI scan of Mr Shepherd’s lumbar spine on 9 September 2020, which he stated revealed a congenitally small canal with a broad-based disc bulge at L4/5, marginally worse to the left side. He acknowledged that the difficulty in obtaining icare approval for the proposed surgery was that the pathology appeared to be more on the left side rather than the right side. Nevertheless, in view of what he considered convincing radiation for an L5 root lesion on the right side, he performed a right L5 block with local anaesthetic and the installation of cortisone. The block provided a relief of symptoms for as long as the local anaesthetic lasted and it was on this basis that he made a diagnosis of compression or at least, irritation to the right L5 nerve root at the L4/5 level and sought approval for the proposed surgery.
Dr Moloney opined that conservative modalities of treatment, including pain management had been unsuccessful.
In his report dated 20 December 2020, Dr Sheehy’s diagnosis was inconclusive because he believed there was a need for further investigation. In his report dated 9 November 2021, Dr Sheehy referred to the proposed procedure as being a decompression of the left S1 nerve root at the L5/S1 level, presumably relying on the lumbar MRI scan performed on 31 May 2021. This was not the surgery proposed by Dr Moloney. In his report dated 19 November 2021, Dr Sheehy referred to the surgery proposed by Dr Moloney and sought clarification as to whether Dr Moloney had observed some change on the medical imaging films that the radiologist had not reported, that caused Dr Moloney to propose a decompression of the right-sided lumbar nerve root. Dr Moloney provided such clarification in his report dated 15 December 2021. There was no further supplementary report from Dr Sheehy.
Dr Sheehy did not have the benefit of viewing the medical imaging films. He relied on the reports. He did not appear to be aware of the outcome of the right L5 block with local anaesthetic and the installation of cortisone or if he did, he did not refer to it. In such circumstances, he was not in as good a position as the treating neurosurgeon, Dr Moloney, to provide an opinion. I give little weight to Dr Sheehy’s evidence.
Mr Shepherd’s consultation with Dr Bentivoglio took place on 22 February 2021. Mr Shepherd had not yet undergone the right L5 block with local anaesthetic and cortisone; he had not yet undergone the lumbar MRI scan on 31 May 2021; and he had not yet attempted the STEPP program. Dr Bentivoglio’s working diagnosis was one of mechanical axial back pain, probably related to a disc problem at the L4/5 level without evidence of radiculopathy or myelopathy. He observed that the MRI and CT scans demonstrated disc changes at the L4/5. Dr Bentivoglio opined that Mr Shepherd’s condition had not resolved, in that, he continued to suffer back pain and right leg pain.
In his supplementary report dated 15 July 2021, Dr Bentivoglio observed that the lumbar MRI scan on 31 May 2021 demonstrated lateral recess narrowing on the left side at L4/5 but not on the right side. He stated that Mr Shepherd had never experienced any leg pain. However, there were references in the medical evidence to bilateral leg pain but that the right leg was the predominant problem. Dr Bentivoglio opined that, according to the MRI scan, pathology and symptoms should be on the left side and not on the right side. It was on this basis that he did not agree with Dr Moloney’s recommendation for a right L4/5 decompression when the pathology on the MRI scan was on the left side. Dr Bentivoglio opined that Mr Shepherd was unlikely to benefit from the proposed surgery in view of the MRI scan findings.
Dr Bentivoglio observed that the findings identified from the L4/5 epidural injection did not disclose any evidence of radiculopathy or myelopathy. The fact that Mr Shepherd got a positive result from the local anaesthetic and the L4/5 epidural injection meant that it affected the left side as well as the right side. Dr Bentivoglio failed to explain the significance, if any, of his latter conclusion. However, Dr Bentivoglio then opined that Mr Shepherd, at least, needed to undergo a multidisciplinary pain management program before any operative intervention was undertaken on his right side when the pathology seems to be on the left side.
Of course, Mr Shepherd has since attempted the multidisciplinary pain management program (the STEPP program) without benefit.
As the treating neurosurgeon, I find that Dr Moloney is in the best position to assess and address the surgical needs of Mr Shepherd. He has considered all the medical imaging and had the benefit of viewing the films rather than just the reports relating to the imaging. He conducted the right L5 block with local anaesthetic and cortisone that, based on Mr Shepherd’s symptoms, he interpreted as being consistent with convincing radiation for an L5 root lesion on the right side. It is for these reasons and the other reasons stated above that I prefer the evidence of Dr Moloney over that of Dr Sheehy and Dr Bentivoglio.
I am satisfied that conservative modalities of treatment, including pain management have been unsuccessful and that Mr Shepherd has exhausted those treatment modalities that he was physically and psychologically capable of engaging in without any significant benefit.
Mr Shepherd has expressed an unchallenged desire to undergo surgery proposed by Dr Moloney urgently.
Applying the principles referred to in Diab above, different treatments may qualify as ‘reasonably necessary’ and Mr Shepherd only has to establish that the treatment claimed is one of those treatments. The proposed right-sided L4/5 fenestration for neurolysis of the transiting L5 nerve root surgery is one of those treatments and I find as follows:
(a)     the alternative treatment by way of conservative management, which has failed over the past 27 months, is unlikely to be effective and on the balance of probabilities, will result in Mr Shepherd continuing to suffer the ongoing pain and restrictions referred to in the evidence;
(b)     Mr Shepherd has exhausted those treatment modalities that he was physically and psychologically capable of engaging in without any significant benefit;
(c)     on the preferred medical evidence, the proposed surgery is appropriate;
(d)     without the proposed surgery, Mr Shepherd will continue to have disabling low back pain and referred lower limb symptoms, exacerbated, on occasions, by the most innocuous activities;
(e)     Janmina raised no issue as to the cost of the proposed surgery;
(f)     the potential effectiveness of the proposed surgery is the best chance Mr Shepherd has of reducing his reliance on potent medications, improving his current and longstanding symptoms, improving his quality of life and resuming suitable employment;
(g)     the purpose and potential effect of the proposed surgery is to alleviate the consequences of the injury as far as possible, and
(h)     the preferred medical evidence supports the proposed surgery as being reasonably necessary and likely to be beneficial in the circumstances of this case.
The weight of the preferred medical evidence supports a finding that the injury to Mr Shepherd’s lumbar spine on 17 February 2020 made a material contribution to the need for the right-sided L4/5 fenestration for neurolysis of the transiting L5 nerve root surgery proposed by Dr Moloney.
Accordingly, I find that Mr Shepherd has discharged the onus of proving that the right-sided L4/5 fenestration for neurolysis of the transiting L5 nerve root surgery proposed by Dr Moloney is reasonably necessary treatment as a result of the injury sustained by Mr Shepherd in the course of his employment with Janmina on 17 February 2020.

CONCLUSION

My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.

[2022] NSWPIC 250

26 May 2022