Simpson v NRC Drainage Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Simpson v NRC Drainage Pty Ltd [2025] NSWPIC 391
APPLICANT:	Luke Simpson
RESPONDENT:	NRC Drainage Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	10 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits and medical expenses; applicant injured his neck in the course of his employment with the respondent; liability accepted; respondent agreed to voluntarily reinstate weekly payments of compensation; applicant also claimed the costs of proposed C5/6-C6/7 surgery; liability for surgery was declined on the basis it was not reasonably necessary as a result of the injury; respondent carries the evidentiary onus of proving the accepted injury has resolved; Commonwealth v Muratore, and University of New South Wales v Brooks applied; absent an explanation as to why it can be said the agreed aggravation has resolved there is insufficient evidence for so finding; having regard to the indicia set out in Diab v NRMA Limited the proposed surgery is reasonably necessary as a result of the accepted injury; Held – the surgery is reasonably necessary as a result of the accepted injury; respondent is to pay the costs of and incidental to the surgery.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. within seven days of the hearing held on 5 August 2025, the applicant’s solicitors are to lodge an Application to Lodge Additional Documents, attaching the report of Dr Finch dated 4 August 2025; 2. the applicant suffered an injury to his cervical spine in the course of his employment with the respondent, with a deemed date of injury of 20 April 2023; 3. the respondent agrees to voluntarily reinstate weekly payments pursuant to s 37 of the Workers Compensation Act 1987 from 6 November 2024, subject to periodic indexation; 4. the C5/6 total disc replacement and C6/7 anterior cervical discectomy and fusion, as proposed by Dr Yang, is reasonably necessary as a result of the applicant’s injury, and 5. the respondent is to pay the costs of and incidental to the proposed surgery. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Luke Simpson (the applicant) suffered accepted injuries to his right upper extremity and cervical spine, the latter in the nature of an aggravation to pre-existing disc pathology, with a deemed date of injury of 24 April 2023.
The respondent, NRC Drainage Pty Ltd accepted the existence of the cervical spine injury, and at a preliminary conference in the Personal Injury Commission (Commission) on 27 June 2025, agreed to reinstate weekly payments of compensation to the applicant pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act) from 6 November 2024.
The applicant seeks payment by the respondent of the costs of and incidental to proposed cervical spine surgery, the need for which is said to have arisen from his injury. The respondent opposes that claim, alleging both any need for the proposed surgery does not arise from the applicant’s injury, the effects of which it alleges have passed, and on the basis the surgery is not reasonably necessary in any event.

ISSUES FOR DETERMINATION

The parties agree that the only issue for determination is whether the proposed surgery is reasonably necessary as a result of the applicant’s injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing before me on 5 August 2025. Mr Hickey of counsel instructed by Ms Nilon appeared for the applicant. Mr Necovski instructed by Ms Farrah appeared for the respondent.
As noted, at the preliminary conference of the matter held on 27 June 2025, the respondent agreed to voluntarily reinstate weekly payments of compensation pursuant to s 37 of the 1987 Act from 6 November 2024, subject to periodic indexation.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application);
(b)    Reply;
(c)    respondents’ Application to Lodge Additional Documents (ALAD) dated 30 July 2025, and
(d)    applicant’s ALAD dated 5 August 2025.
The respondent objected to the applicant’s additional documents being accepted into evidence, alleging it was prejudiced because the documents were late. Directions were made at the preliminary conference for the parties to lodge additional documents up to three days before the hearing, in anticipation of both parties relying on updated independent medical examiner (IME) reports dealing with the question of the reasonable necessity of the surgery at issue. Mr Necovski submitted the respondent’s IME Dr Smith had not had the chance to review the applicant’s report, and as such the respondent was prejudiced if it was admitted into evidence.
For the applicant, Mr Hickey noted Dr Smith had indicated the effects of any injury had passed in any event, so there could be no prejudice by his being unable to review the applicant’s IME report before the hearing.
On balance, I accepted the applicant’s late documents into evidence. It was not contemplated at the preliminary conference that the parties’ IMEs would have the benefit of reviewing each other’s reports before lodging their own. Additionally, given the nature of the denial of liability for the surgery, I formed the view, that there was no prejudice to the respondent by virtue of the documents being admitted into evidence.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the proposed surgery is reasonably necessary as a result of the applicant’s injury

The applicant carries the onus of demonstrating the proposed treatment is reasonably necessary as a result of his injury. In this matter, both aspects of the test pursuant to s 60 of the 1987 Act are in issue. That is, the respondent denies the surgery is reasonably necessary and also alleges that any need for it does not arise from the applicant’s injury.
The relevant test for establishing reasonable necessity is set out in the decision of Deputy President Roche, in Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab). In that matter, the Deputy President cited with approval of the test articulated by his Honour Judge Burke in Bartolo v Western Sydney Area Health Service [1997] 14 NSWCCR 233. Thus, treatment will be considered reasonably necessary if the Commission finds that it is preferable that the worker should have the treatment that it be forborne.
The considerations set out in Diab for determining reasonable necessity include, but are not limited to:
(a)    the appropriateness of the treatment;
(b)    the availability of alternative treatment and the potential effectiveness of the alternative;
(c)    the cost of the proposed treatment;
(d)    the actual potential effectiveness of the proposed treatment, and
(e)    the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
In Diab, Roche DP, also noted the word “reasonably” operates to qualify the effect of “necessary”, such that the injured worker does not need to prove the treatment is absolutely necessary.
In addition to the non-exhaustive indicia of reasonable necessity, the applicant must also satisfy the Commission the requirement for the proposed treatment has arisen, “as a result of” his injury. The “results from” principle of causation applies to s 60 claims, but confusion is sometimes created by the fact that s 60 liability also has the requirement of reasonable necessity.
The principles of causation and reasonable necessity are different and must be kept distinct in s 60 claims. It is frequently a separation which is lost, or the differing principles misunderstood.
The question which is relevant, and highlights the distinction between a mere “but for” and the common sense test of causation applicable in workers compensation cases is, did the relevant injury bring to light a need for treatment which was going to be necessary anyway, or did the injury not only bring to light a need for treatment which was going to be needed in any event, but the treatment is required now and the option to wait and or try other treatments has been removed.
The applicant set out the nature of his duties with the respondent as a pipe layer/concreter, a vocation in which he has worked for many years. I do not propose to repeat the evidence in full in these reasons, suffice to say [7] to [10] of the applicant’s statement set out in detail the nature of his duties, which can only be described as heavy, repetitive and physically enervating.
The applicant commenced employment with the respondent on 24 March 2023. He stated he began to notice initial symptoms in his shoulders and arms while completing his duties, such symptoms becoming more severe on or about 24 April 2023 at which time he began experiencing significant pain in his right arm and right elbow.
The evidence discloses the applicant has undergone an extensive course of conservative physical therapy and radiological investigations. The treatment includes both shoulder and cervical spine injections, physiotherapy, rehabilitation and pain management together with medication.
The respondent noted the applicant had a marked improvement in his condition in or about early to mid-2024, such that he was certified by his general practitioner (GP) Dr Dique as fit for employment for 10 hours per day, five days per week with lifting, carrying, pushing and pulling restrictions of less than 10 kilos. That certificate was issued on 6 June 2024.
Mr Necovski noted the applicant’s condition had progressed from the onset of injury to early 2024, when his acute right-sided neck pain radiating into his shoulder, arm and wrists had improved. Treating surgeon Dr Yang provided a number of reports from 27 February 2024 onwards, which demonstrated some improvement as that year progressed.
On 11 April 2024, Dr Yang reported to Dr Dique as follows:
“I have reviewed work with his partner and his rehab consultant. His right arm/shoulder pain has resolved with physiotherapy twice a week. He has ongoing neck pain and intermittent mild numbness and pins/needles over the right limb. He has stopped regular analgaesics. He has stopped working since 26 Feb 2024, because there is no light duty work at his workplace.
On examination, his gait was normal. His upper limbs had normal tone, power, reflexes and sensation.
I recommend continuing conservative management at this stage given his improvement. I have asked his rehab consultant to identify a suitable duties programme to facilitate his gradual return to work. I have explained to him that it may take 6–12 months for his cervical disc injury to resolve and there is no indication for nerve root block/surgical intervention at this stage because his radicular symptoms have resolved.”
Dr Yang then provided a further report to Dr Dique dated 23 January 2025, in which he reported:
“He underwent a repeat CT-guided right C7 nerve root block in October 2024 with no significant improvement. He has ongoing neck pain radiating down right triceps to right wrist and right little/ring fingers.
He is taking Lyrica and Endep with mild effect.
On examination, his gait was normal. Pin prick sensation was reduced over right thumb, index, middle and ring fingers. Right TJs and BJs were absent. His upper limbs had normal tone and power. Hoffman signs were negative bilaterally.
Repeat MRI cervical spine showed ongoing right C5/6 and right C6/7 disc protrusion, compressing right C6 and right C7 nerve roots, respectively.
I have explained the scan results to him. I recommend C5/6 total disc replacement for right C6 nerve root decompression and C6/7 anterior discectomy and fusion for right C7 nerve root decompression. I am submitting surgery request to NSWWC for an approval. I will see him after the surgery approval. I will keep you posted as to Luke’s progress.”
Mr Necovski submitted there was no explanation proffered by either Dr Yang or by the applicant’s IME, Dr Finch as to why the applicant’s condition had improved and then worsened. He submitted in these circumstances the applicant could not discharge the onus of proving his ongoing condition was work related.
The respondent also relied upon the reports of Dr Smith, IME. In his first report, Dr Smith noted the applicant presented in a straightforward manner and accepted he had exacerbated his cervical degenerative disease in the course of his employment. In his first report dated 22 November 2024, Dr Smith stated:
“His symptoms are due to exacerbations of pre-existing degenerative disease in the cervical spine. The incidence of spinal degenerative disease is ultimately 100% in men and women age 60 and over. In his age group, it is over 90%. C5-6 and C6-7 combined produced 90% of all cervical problems.”
When asked what percentage of the applicant’s issues related to pre-existing problems as opposed to a work-related injury, Dr Smith replied:
“The actual exacerbation in April 2023 has probably resolved. He is having recurrent exacerbations with various activities on his part. Exacerbations generally resolve after a number of minutes, hours, days or a week or two. Sometimes it can take three months for the exacerbations to resolve.”
In a supplementary report dated 11 December 2024, Dr Smith repeated his comments in relation to the nature and duration of examination. He additionally noted:
“Once someone’s spinal degenerative disease has been rendered symptomatic for the first time, they tend to become aware of the pathology and notice subsequent exacerbations with various activities of daily living, and they attribute all those exacerbations to the initial exacerbating circumstance.”
Dr Smith noted the pathology in the applicant’s neck had not changed over time and noted there was no post traumatic lesion described.
The difficulty with Dr Smith’s opinion is that the applicant’s injury is said to be in the nature of an aggravation to underlying pathology. Although, as Mr Necovski pointed out, the applicant had some marked improvement during the middle stages of 2024, his condition at no time completely resolved. Rather, his symptoms have persisted since the time of his injury, which is in the nature of an aggravation to previously asymptomatic cervical spine pathology.
The argument that the effects of accepted aggravations have passed is one frequently seen in this jurisdiction. However, absent some reasoning as to why the aggravation has passed in circumstances where the applicant’s evidence is his symptoms have, at least to some degree, persisted since the time of the accident, it is not a proposition readily accepted.
It should also be noted a party which alleges the effects of an accepted injury have resolved carries the onus of proof in establishing that is the case: see Commonwealth v Muratore (1978) 141 CLR 296 and University of New South Wales v Brooks [2014] NSWWCCPD 68.
In his final report attached to the respondent’s additional documents, Dr Smith had the benefit of perusing the reports of Dr Finch, IME for the applicant, together with the various reports of Dr Yang, treating surgeon. Dr Smith noted the following:
“I had been provided with a letter from Dr Finch, an orthopaedic surgeon, dated 16 April 2025. There is a summary of his injury on 29 April 2023 and his subsequent treatment. As at 25 February 2025, he had neck pain and right arm pain, with pins and needles in the fourth and fifth fingers, and weakness in the right upper limb. A diagnosis is made of C5-6 and C6-7 disc protrusions, with nerve root impingements on the right at C6 and C7. . . . References were made to Dr Li Yang, who recommended a C5-6 disc replacement and a C6-7 anterior discectomy and fusion. He conducts an examination and describes your restriction in the range of movement of the neck in all directions, limited by pain. He describes a global weakness in all movements of the right upper limb, accompanied by only wasting. The weakness includes shoulder elevation and neck rotation to the right. He describes no hard neurological signs. He describes the possibility of delaying surgery, leading to permanent nerve injury. He suggests that just because he is not 60 years of age, it is not appropriate to suggest changes are age related.”
Dr Smith was then asked whether his opinion had changed in light of the additional material before him and said:
“I have no reason to alter the opinion that he does have a cervical degenerative disease with disc protrusions at C5-6 and C6-7 and considering those two levels produced 90 to 95% of all neck problems, on clinical grounds, he has, in my opinion, no hard neurological signs and his manufacturing physical signs, and in my opinion symptoms.
The same fabricated weakness is described in the examination of Dr Finch. I remain of the opinion that there is no post-traumatic lesion.”
Dr Smith was then asked as to whether the accepted work-related injury to the cervical spine had materially contributed to the need for surgery and said, “he is not going to confess to any improvement in the event he does have an operation. He is a very poor surgical candidate.”
Dr Smith provides this opinion in his last report, having undertaken only a file review. He only examined the applicant on one occasion, namely before providing his initial report dated 22 November 2024. At that time, Dr Smith described the applicant as having a consistent presentation. However, by 28 July 2025, Dr Smith was not only of the view the effects of the applicant’s exacerbation have passed but formed a view he was fabricating his symptoms. No basis for that assertion is provided. It is a serious allegation, and one for which, in my view, there is plainly no basis on any of the medical evidence.
The applicant has consistently complained of symptomology in his neck and right upper extremity since the time of the injury. True it is that for a period the applicant’s symptoms lessened, and some of them even resolved. However, he has never been completely symptom free since the time of the injury. For an IME to accuse a worker with an accepted injury of fabricating their symptoms in circumstances where they have not re-examined that worker since an earlier report at which time they described the presentation of the worker as consistent is, in my view, an extraordinary position to adopt and is clearly inappropriate.
It is also unusual the respondent would rely on Dr Smith’s opinion to the effect the applicant is fabricating his symptoms, while at the same time agreeing to reinstate his weekly benefits at the preliminary conference in these proceedings. Those two positions are plainly inconsistent, and in agreeing to voluntarily restore the applicant’s weekly compensation, the respondent can only be taken to have accepted not only that the applicant’s complaints are genuine, but that they are ongoing.
Dr Smith’s opinion is provided without sufficient reasoning as to why the applicant’s injury in the nature of an aggravation has resolved. A broad statement to the effect that exacerbations can last between minutes and months is insufficient in the face of treating and IME evidence which clearly establishes an ongoing range of symptoms.
Having regard to the treating evidence, and the balance of the IME material, I have no difficulty in finding the effects of the applicant’s injury are ongoing and had been since the time of their onset.

Dr Smith indicates the applicant is a poor candidate for surgery and states the proposed disc replacement does not deal with anything regarding degenerative processes in the spine. He also notes there is a considerable incidence of failure with regards to fusions.
That view by Dr Smith ignores the very nature of injuries by way of aggravation. It is symptomology which brings about the need for any treatment, not pathology. That is, a worker might have long-standing pathology in a given body part, but it is not until they are exposed to a precipitating traumatic event that the pathology becomes symptomatic. In circumstances where that precipitating event occurs in the course of their employment, the injury in the nature of aggravation is suffered. Such is the case in this matter.
As the High Court made clear in Federal Broom Company Ltd v Semlitch (1964) 110 CLR 626, it is the effects of the aggravation which one must determine, not of the underlying pathology.
In this matter, the evidence is overwhelming and clear. The applicant had asymptomatic pathology in his cervical spine which was rendered symptomatic by his work injury. Dr Smith asserts this aggravation to the underlying pathology has ceased. However, he does so without providing a sufficient factual basis as to why that is the case, and in the face of clear evidence – both treating and IME – that the applicant symptoms have remained, albeit fluctuated in their severity from time to time. I do not prefer the views of Dr Smith.
However, that is not the end of the factual exercise. The applicant still bears the onus of proving the surgery is reasonably necessary as a result of his injury.
Dealing with the indicia set out in Diab, I have no difficulty accepting the balance of the evidence supports a finding the proposed surgery is reasonably necessary. The applicant has undergone exhaustive conservative treatment. It has consisted at various times of analgesia, opioid pain relief, physiotherapy, physical therapy and rehabilitation programmes together with cortisone injections to relevant disc spaces. All of these have provided limited relief. On balance, I have no difficulty accepting Dr Yang’s view, supported as it is by the applicant’s IME, Dr Finch, the applicant has exhausted all non-surgical options. On balance, I find the proposed surgery is reasonably necessary.
As Mr Hickey noted, if it is accepted the applicant’s cervical spine was asymptomatic before the injury at issue and that his symptoms have persisted, it must follow the work injury has made a material contribution to the need for the surgery. I accept that submission. I also accept that the preconditions for the making of that submission have, in this matter, been met.
There is no suggestion the applicant had any pre-existing symptomology in his cervical spine before the injury at issue. The contemporaneous treating evidence also makes clear that his symptoms have persisted, albeit they did fluctuate in or about mid-2024. Nevertheless, those symptoms never fully resolved, and I accept on balance that they are at the point now where the applicant should have the treatment proposed rather than it be forborne.
There is also no suggestion of any other matter which has brought about the symptomology in the applicant’s cervical spine. Dr Smith provides a hypothesis that the applicant is merely attributing his problems to the work injury, however, that flies in the face of the consistent complaints made by him since the onset of the injury in 2023. In fact, Dr Smith goes further, suggesting the applicant is fabricating his symptoms (to what end we can only surmise).
It is not necessary for the applicant’s employment to be a substantial contributing factor to the requirement for surgery, or the main contributing factor. All that is required is the injury suffered in the course of his employment has made a material contribution to the need for the treatment. On balance, this is plainly the case.
Dr Yang, as a treating surgeon, is entitled to be given considerable weight unless it can be shown either the history taken by him is significantly deficient or that the methodology adopted in reaching his conclusions is shown to be erroneous. No such attack is made on him in this matter, and I have no difficulty accepting his views.
For his part, IME for the applicant Dr Finch sets out in detail the history of injury together with the long course of conservative treatment undertaken by the applicant. In his first report dated 16 April 2025, Dr Finch notes:
“He had no previous history of neck or right arm symptoms prior to this injury. He usually worked as a concrete/pipe layer for 16 years with no previous time off work for neck pain. Examination findings are consistent with right C6/7 radiculopathy. Current symptoms remain ongoing despite conservative management with physiotherapy and nerve root injections.
The plan is to proceed with surgery as recommended by Dr Yang, with an expected six-week recovery time post-operatively. Post-operative rehabilitation will include physiotherapy. Prognosis is good for return to pre-injury work duties after rehabilitation; however, some minor ongoing symptoms may persist related to underlying cervical spondylosis. He is currently unfit for all work pending surgery and post-operative recovery.”
In his second report, Dr Finch stated he would expect the proposed treatment to be very effective in relieving all arm pain and will quote a 95 plus percent chance of removing all arm symptoms. He described the treatment as entirely appropriate and likely to be effective. He said there was no reason to contradict Dr Yang’s treatment plan.
As noted, the applicant has had extensive conservative treatment to little or no avail. On balance, I am satisfied, the proposed surgery is reasonably necessary as a result of the applicant’s injury and as such, the respondent will be ordered to pay the costs of and incidental to it.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page one of the Certificate of Determination.

[2025] NSWPIC 391

10 August 2025