Singh v HealthScope Operations Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Singh v HealthScope Operations Pty Ltd [2025] NSWPIC 560
APPLICANT:	Amarjit Singh
RESPONDENT:	HealthScope Operations Pty Limited
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	17 October 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for proposed surgery; section 60 dispute; whether the surgery to the lumbar spine (namely L4-S1 anterior lumbar interbody fusion and T10 to Pelvis - posterior spinal fusion) is reasonably necessary; Rose v Health Commission (NSW), and Diab v NRMA Ltd considered; Held – proposed surgery reasonably necessary as a result of subject injury.
DETERMINATIONS MADE:	The Commission determines: 1. Respondent to pay the applicant’s s 60 expenses in respect of the treatment proposed by Dr Bhishram Singh, namely, a L4/S1 anterior lumbar interbody fusion (stage 1) and T10 to pelvis, posterior spinal fusion (stage 2) and associated treatment expenses as a result of the injury on 11 November 2021 on production of accounts and/or receipts. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Amarjit Singh (the applicant), was employed by HealthScope Operations Pty Limited (the respondent) as a registered nurse. The respondent was insured by Employers Mutual (NSW) Limited (the insurer) at all relevant times.
In the course of her employment on 21 October 2021 the applicant sustained an injury to her lumbar spine while manoeuvring a patient in a commode chair into a bathroom and the chair got stuck on the door jamb. In the alternative the applicant sustained an aggravation, acceleration, exacerbation or deterioration of a disease in the lumbar spine with the deemed date of injury being 11 November 2021.
The applicant made a claim for medical treatment in relation to a proposed L4-S1 anterior lumbar interbody fusion and T10 to pelvis - posterior spinal fusion in respect of the injury to lumbar spine on 11 November 2021 and associated expenses recommended by Dr Bhishram Singh on 11 March 2025. For convenience, I shall refer to the proposed treatment as the “proposed surgery”.
The insurer issued a s 78 Notice dated 4 April 2025 declining the claim for surgical treatment, namely L4-S1 anterior lumbar interbody fusion and T10 to pelvis - posterior spinal fusion in respect of the injury to lumbar spine on 11 November 2021.
The insurer issued a Review Notice on 13 June 2025 in which the decision of 4 April 2025 was maintained.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the surgery to the lumbar spine, namely L4-S1 anterior lumbar interbody fusion and T10 to Pelvis - posterior spinal proposed by Dr Singh, is reasonably necessary (s 60 of the 1987 Act) as a result of the injury to the lumbar spine on 11 November 2021.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conciliation conference and arbitration by audio visual link on
13 October 2025. The applicant was represented by Mr Bruce McManamey who was instructed by Ms Panju of Turner Freeman Lawyers. The respondent was represented by
Ms Katharine Young, who was instructed by Mr Webb and Ms Yun of Hicksons Lawyers.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.

Submissions

The submissions of the parties were recorded and I do not propose to repeat each of the arguments of counsel in these reasons. However, the respondent submitted that the proposed treatment was not reasonably necessary because she had not undergone the radio frequency ablation treatment that the respondent had agreed to pay for on 7 February 2025 and there was no evidence as to why that treatment had not gone ahead or whether there had been a deterioration or change in her condition.
The respondent submits that there is available alternative treatment, namely, radiofrequency ablation treatment which is less expensive and less invasive that the surgery proposed by
Dr Singh and that conservative treatment should be undertaken before the effectiveness or appropriateness of the surgery now proposed can be adequately determined.
The respondent concedes that any improvement from the radio frequency ablation treatment is not permanent but submits that if the applicant has a good chance of recovery from that treatment, she should undergo that before the extensive and significant surgery that is now proposed. Finally, the respondent submits that the surgery proposed by Dr Singh will not be effective.
The applicant submitted that there was no dispute that the applicant had sustained a work injury to her lumbar spine on 11 November 2021 and that the weight of the medical evidence supported a finding that the surgery proposed by Dr Singh was reasonably necessary as a result of that injury.

FINDINGS AND REASONS

I note that the respondent does not dispute that the applicant sustained an injury to her lumbar spine arising out of and in the course of her employment with the respondent.
At the start of the arbitration, Mr McManamey stated that the parties agreed that although the respondent had raised the issue of whether there were continuing problems as a result of the work injury in an earlier s 78 Notice, Ms Young had confirmed that the respondent does not seek to make that argument. I concluded that the matter to be decided was as set out in my direction dated 1 September, that is, whether the surgery proposed by Dr Singh in his estimate of fees dated 4 March 2025, namely 2025, namely, a L4/S1 anterior lumbar interbody fusion (stage 1) and T10 to pelvis, posterior spinal fusion (stage 2) is reasonably necessary treatment for the applicant’s condition (s 60 of the Workers Compensation Act 1987).

Evidence of the applicant

In a statement dated 9 October 2023, the applicant wrote:
“24. On Sunday 31 October 2021 I was manoeuvring a commode chair into the bathroom to help a large patient and felt severe back pain. The patient was non weight bearing due to a fractured foot and issue with her other knee. She was able to stand with frame and turn slowly. I was commoding her to the bathroom as she needed to go to the bathroom. She was very heavy at 119 kilograms. I was supposed to be on light duties due to my shoulder injury. The commode chair got stuck in the bathroom entry on the door jam. I was trying to pull her through and she was holding onto the jam. I could not pull her. I realised she was holding on.
25. As I tried to pull her it felt like my whole stomach came up, everything pulled up. I felt severe lower back pain.”
The applicant stated that she was referred to Dr Rao who recommended bilateral sacroiliac joint injections. She said that she underwent right sacra joint injections at Norwest Private Hospital on 19 July 2022 and left sacro joint injections at Norwest Private Hospital on
26 July 2022. The applicant stated that these injections provided good relief for about two weeks then severe pain returned and she found it difficult to undertake her daily activities.
The applicant stated that Dr Rao then recommended radiofrequency ablation and requested approval from the insurer. The applicant said that she saw Dr Rao again on
15 September 2022 and reported her severe pain and daily struggles, not being able to walk properly without holding onto things, and he noted the insurer had not yet granted approval for the radiofrequency ablation he recommended.
The applicant stated that the insurer then declined liability for her back condition.
The applicant wrote:
“45. Since the injury to my back I have pain and difficulty. I have difficulty with activities of daily living. I live on acreage and I love gardening but struggle to bend down and get back up. It hurts a lot. I have to take my time. I have to hold onto things to assist me up. I use milk crates. I use a walking stick if I go for a walk or otherwise I take a trolley to hold myself up. I struggle with carrying weight.”
In a statement dated 9 February 2024 the applicant stated that she continued to experience the following symptoms as a result of her lumbar spine injury:
“(a)    Inability to walk or stand for long periods of time
(b)     Inability to sit for long periods of time
(c)     Inability to perform domestic duties I could do pre-injury. For example, whenever I try and do any household task, I struggle immensely. Vacuuming is my biggest challenge. If I attempt to cook, I have to lean on the bench for support. Prior to my injury, I would help make more than 20 beds in the ward at work. I would always go out of my way to help others. Now, I can barely look after myself.
(d)     Inability to engage in pre-injury hobbies such as gardening. Everything I do causes me pain and discomfort. I am scared to do anything that my aggravate my pain.
(e)     Inability to bend or kneel.
(f)     Numbness and pins and needles in my right leg. I have never experienced this until this time. This often wakes me up several times at night.”
The applicant stated that she now relied on a walking stick as she experienced immense weakness in her back and lower right limb.
In a statement dated 3 July 2025, the applicant stated that her back injury “is currently very bad, and the only way that I will be able to recover is if I undergo the requested surgery on my back.” She wrote: “At the moment. without any surgery, the condition of my back is continually deteriorating. My back is the worst it has ever been.”
The applicant stated:
“6.     As a result of my back injury, I am in severe pain and discomfort 24/7, and I am unable to do a number of things that I used to be able to do, such as gardening, cleaning around the house. standing up to do my ironing, shopping, and driving for long periods.
7.     I no longer go out much at all, as I am unable to sit for very long in my car. If I drive, I will drive mostly around the Campbelltown region, and nothing much further. This is because. when I drive, I experience a lot of spasms in my left leg. and my right leg also goes numb.
…
9.     In the initial stages of my back injury, the insurer approved me for cortisone injections in my back; however, they made minimal difference to my back, and my pain returned very quickly.
10.    GIO, my insurer at the time, refused my request for my back surgery, and it took approximately a year for them to accept it. As a result, I went an entire year with no treatment, making my back injury extremely worse.
…..
12.    I cannot stand up straight to do anything, and I must lean on something. Without a walking stick, I cannot walk. I must hold on to something in order to be able to walk.
13.    The insurer keeps declining my treatment, which is making my back injury significantly worse. I need the back surgery to rectify my back issues. Without back surgery, my condition keeps deteriorating.
14… I need the treatment so that I am no longer in pain.
15.    The doctors have told me that I will eventually need to undergo a fusion no matter what these temporary treatments do. As a result, I need this surgery to occur as soon as possible so that I can begin to improve.
16.    At the moment I am in excruciating pain and nothing seems to alleviate me from my symptoms.
17.    I do not understand why the insurer keeps rejecting my claim when it has been proved by the doctors that only surgery will improve my back injury. I sought a second opinion from
Dr Bhisham Singh after seeing Dr Rao and Dr Singh has advised that a different procedure is more appropriate for my injuries. Now the insurer declines to pay for this, despite agreeing to pay for a different procedure in previous proceedings my solicitor had filed.”
The applicant stated that she is currently taking three Endone and sometimes six Panadeine Forte due to her constant excruciating pain.

Medico-legal reports

Dr Anil Nair, consultant spinal orthopaedic surgeon, in a report dated 2 September 2022, expressed the opinion that treatment to date has been reasonable and necessary but may need to be escalated. He wrote:
“Extract of consultation report from Dr Rao suggests the possibility of a spinal fusion. This may be required in the future. Such an intervention costs approximately $50,000 per episode of care depending on the number of levels required. The procedure is accepted treatment by a quorum of spinal surgeons for significant spinal deformity with consequent neurocompressive lesions.”
Dr Richard Powell, consultant orthopaedic surgeon, in a report dated 1 October 2024, noted that the applicant underwent a series of three corticosteroid injections, though she did not feel these were particularly beneficial. He noted that the possibility of surgery was discussed though the applicant elected not to proceed. He reported that the applicant underwent right shoulder surgery in January 2024 under the care of Dr Chandra Dave and in the immediate post-operative period she was aware of a significant increase in her lower back pain.
Dr Richard Powell noted under “current symptoms” that the applicant indicated her lower back condition was steadily deteriorating. She reported a constant aching pain in the midline region of the lower back which spreads bilaterally to the paraspinal region of the buttocks, though is more severe on the right side. He noted that pain then extends down the anterolateral aspects of the lower limbs, extending to the ankle on the right side and to the knee on the left side, accompanied by pins and needles following a similar distribution. He noted there was marked stiffness and restriction in range of motion in the lower back, her mobility was reduced, and she used a stick. He reported that current treatment was limited to the use of medications (Panadeine Forte, Endone and anti-inflammatories).
Under “Past History” Dr Richard Powell noted that the applicant had bilateral shoulder surgery performed by Dr Chandra Dave and she has had bilateral total knee replacements.
On examination, Dr Richard Powell made the following findings:
“Ms Singh was able to stand on her heels and toes. There was diffuse tenderness to palpation of the posterior aspect of the lumbar spine extending from the thoracolumbar junction to the sacrum. There was right sided paraspinal muscle tenderness though no spasm.
Range of motion was restricted with forward flexion to the mid tibia, lateral flexion was to the superior pole of the patella bilaterally and rotation was three quarters normal range bilaterally.
Straight leg raising was 80° on the left and 70° on the right.
Neurological examination of the lower limbs revealed normal tone, power and sensation. Deep tendon reflexes were present, equal and symmetrical.
Screening examination of the hips revealed a symmetrical mildly restricted range of motion with normal forward flexion, extension, abduction, adduction and external rotation, with internal rotation mildly restricted at 30°.
There was no measurable leg length discrepancy.”
Dr Richard Powell made a diagnosis of an injury to her lower back in a workplace incident on 31 October 2021 representing a musculoligamentous injury and aggravation of underlying multilevel changes of lumbar spondylosis. He noted that the applicant has been managed conservatively under the care of Dr Rao. Dr Richard Powell reported that her level of symptoms and function have steadily deteriorated. He noted that the examination was characterised by diffuse tenderness and mild restricted range of motion, though without definitive features of radiculopathy.
Dr Richard Powell expressed the opinion that taking into account the nature of the aggravating incident, the extent of the pre-existing pathology, the natural history of the underlying degenerative disease process and the applicant's clinical progress since that any aggravation sustained in the manner described would have been temporary and settled by now.
Dr Richard Powell recommended continued conservative management. He wrote:
“I would encourage Ms Singh to adopt a more active self-directed exercise programme incorporating some regular core strengthening and flexibility work. She may benefit from some pool based exercises and a reduction of her body mass index. The intermittent use of medications to assist in symptom control is reasonable.”
Dr Richard Powell considered that the overall prognosis was poor and the natural history was for continued deterioration over time with her lower back remaining a source of ongoing symptoms and functional limitations into the future. He did not believe that the applicant would ever return to her full pre-injury duties and the prospects of obtaining alternative employment opportunities in her current situation were low.
In a supplementary report dated 10 April 2025, Dr Richard Powell expressed the view that the surgery proposed by Dr Singh would not be considered reasonably necessary for the management of any injury sustained in the course of her employment. He considered that the surgery addresses the longstanding pre-existing multilevel degenerative and structural pathology in the lumbar spine and was not required on the basis of any injury sustained in the workplace incident on 11 November 2021.
Dr Richard Powell was asked “Do the findings of the investigations support the requested surgical intervention for the claimant? Are there any alternative treatments that you would recommend for Amarjit?” and replied:
“The surgery proposed by Dr Singh is a major undertaking in a lady of this age with her associated comorbidities and elevated body mass index. Although the investigations do reveal evidence of multilevel degenerative pathology within the lumbar spine in the absence of progressive neurological compromise or significant instability it is difficult to justify combined anterior and posterior interbody fusions that incorporate a seven level fusion. I do not believe the surgery proposed would be considered reasonably necessary for the management of any injuries sustained in the course of her employment.”
Dr Richard Powell considered it difficult to predict how a patient such as the applicant who is in her mid-60s, has significant ongoing symptoms related to previous bilateral shoulder and knee surgery, poor level of overall fitness and a markedly elevated body mass index will respond to a seven level spinal fusion. He considered it extremely unlikely that the surgery will result in significant symptomatic functional improvement that would facilitate a return to the workplace. He acknowledged that the applicant does suffer from significant lower back symptoms and is experiencing chronic pain relating to the degenerative pathology in the lumbar spine “though failure of conservative management to result in significant symptomatic and functional improvement is not in itself an indication for surgery”.
Dr Richard Powell believed that the applicant’s prognosis for improvement, return to work and resumption of normal activities of daily living was poor. He stated that her lower back condition would clearly not resolve.
Dr Richard Powell considered that if the proposed surgery was performed, it was difficult to predict the timeframe for recovery following a combined anterior and posterior fusion particularly when the posterior fusion involves seven levels but suggested maximal medical improvement was likely to take at least 12 months.

I note that there were a number of reports by Dr James Powell, orthopaedic surgeon, attached to the reply. These reports were dated 28 March 2022, 4 July 2022,
24 February 2023, 8 May 2023 and 22 June 2023 and do not address the issue to be determined in this matter, that is, whether the surgery proposed by Dr Singh is reasonably necessary.
In a report dated 24 February 2023, Dr James Powell noted that the applicant had taken analgesics, attended physiotherapy and had injections about the sacroiliac joints in July 2022 and in the lumbar region in August 2022 which improved symptoms for about two weeks. He noted that after the injections, the applicant found that her symptoms became more severe. He noted that the applicant had deterioration in recent times with an increase in back pain and difficulty walking, with symptoms and difficulties being worse in the mornings with some improvement through the day.
In his last report dated 22 June 2023, Dr James Powell expressed the following view:
“Radiofrequency ablation is one of many techniques utilised by pain specialists to attempt to reduce pain symptoms that might arise from structural components around the spine.
This procedure may provide some symptomatic relief to Ms Singh. Given her situation, however, it is unlikely to be complete nor sustained.”
In a report dated 28 May 2025, Dr Peter Khong, consultant neurosurgeon and spinal surgeon, noted that the applicant was referred to Dr Rao, neurosurgeon, following her work injury and had a series of cortisone injections into her lumbar facet joints and sacroiliac joints on 19 July 2022 and 26 July 2022. He noted that these injections helped for a few weeks before her pain returned. Dr Khong reported that the applicant had hydrotherapy for eight months.
Dr Khong noted that the applicant complained of persistent midline mid and lower lumbar spine pain. He wrote:
“On the left, her left sided lower back pain radiates to the buttock and posterior thigh, stopping at the knee. This pain is worse when bending.
On the right, her right sided lower back pain radiates down the lateral right thigh and leg to the top of her foot and back of her ankle. This pain is worse when she is lying down.
She has developed some urinary incontinence since her injury.”
Dr Khong noted that the applicant currently takes Endone, Panadeine Forte, Voltaren and uses Painaway spray for pain. He reported that hydrotherapy has been stopped. He noted that regarding activities of daily living, the applicant struggled with work in the garden and at home, has difficulty standing, and mobilises with a walking stick.
On examination, Dr Khong made the following findings:
“Lumbar range of motion was as follows. Flexion to 100 degrees, extension to 20 degrees. Lateral flexion to 20 degrees bilaterally. Rotation to 45 degrees bilaterally.
There was some tenderness on palpation of the midline mid to lower lumbar spine.
Examination of muscle wasting was as follows. Right thigh circumference 10cm above patella 51cm. Left thigh circumference 10cm above patella 51cm. Right maximum calf circumference 36cm. Left maximum calf circumference 37cm.
Slow measured antalgic gait due to lower back pain. Able to walk on heels and toes.
Neurological examination of the lower limbs in the sitting position was as follows. Normal power in all muscle groups bilaterally. Reflexes were - in the knees and ankles bilaterally. Sensation was normal bilaterally.
Neurological examination of the lower limbs in the supine position was as follows. Right sided buttock and thigh pain with right straight leg raise, lower back pain with left straight leg raise. Normal tone bilaterally.
Power was 5/5 in all muscle groups bilaterally.
Negative femoral nerve stretch test.”
Dr Khong made a diagnosis of severe lower back pain and lower limb symptoms as a direct result of a pulling injury at work. He noted that the applicant was working full time without restriction or pain prior to her injury and her injury caused a severe exacerbation of the previously asymptomatic degenerative changes in her lumbar spine. Dr Khong noted that imaging demonstrates a thoracolumbar scoliosis with multi-level degenerative disc disease and facet joint arthritis and there is also increased uptake in her sacroiliac joints on bone scan.
Dr Khong noted that the applicant remains debilitated by her pain and has no capacity for work.
In answer to the question “Dr Bhisham Singh has requested our client undergo an L4/S1 anterior lumbar interbody fusion and T-10 to Pelvis – Posterior Spinal Fusion. Do you believe this would benefit our client?” Dr Khong wrote:
“Ms Singh has been debilitated by pain since her workplace injury over 3.5 years ago. Her imaging demonstrates a thoracolumbar scoliosis. Her bone scan demonstrates increased uptake from L3 – S1, but there is degenerative disc disease throughout her lumbar spine. An L4 – S1 anterior lumbar interbody fusion and T10 – pelvis spinal fusion is reasonably necessary. She has failed all non-operative management options and will not improve without surgery. The aim of this surgery would be to correct her deformity and immobilise the painful motion segments of her spine. The correction of her deformity also aims to decompress the neural elements to help with her lower limb symptoms.”
In a supplementary report dated 30 June 2025, Dr Khong considered the report of Dr Powell. Dr Khong noted that the applicant has a thoracolumbar scoliosis and multi-level degenerative pathology. He wrote:
“Whilst it may be possible to address her pain with a shorter segment fusion, this may cause imbalance or adjacent segment disease, requiring further surgery after her initial surgery. A T10 – pelvis fusion is considered appropriate and likely to be effective for her pathology in the setting of intolerable back pain and significant multi-level degenerative changes and scoliosis.”
Dr Khong agreed that the applicant would require extensive rehabilitation and physiotherapy post-operatively.
Dr Khong, in considering whether the treatment requested is reasonably necessary, noted that the applicant had been debilitated by pain since her workplace injury over three and half years ago. He stated that her imaging demonstrates a thoracolumbar scoliosis and her bone scan demonstrates increased uptake from L3 – S1, although there is degenerative disc disease throughout her lumbar spine.
Dr Khong wrote:
“She has failed all non-operative management options and will not improve without surgery. If her pain is intolerable, an L4 – S1 anterior lumbar interbody fusion and T10 – pelvis spinal fusion is reasonably necessary. The aim of this surgery would be to correct her deformity and immobilise the painful motion segments of her spine. The correction of her deformity also aims to decompress the neural elements to help with her lower limb symptoms.”

Reports of treating doctors

In a report dated 29 November 2021, Dr Prashanth Rao, treating neurosurgeon and spine surgeon, noted that the applicant presented with a work injury on 31 October 2021, when she was pulling a commode chair and felt severe back pain. He noted that she had trialled medication and bed rest with no improvement. He recommended further investigations be organised.
In a report dated 3 February 2022, Dr Prashanth Rao, treating neurosurgeon and spine surgeon, noted that the applicant reported difficulty standing for prolonged periods and insufficient force in her legs when standing up from a seated position. Dr Rao reviewed the MRI which he stated showed kyphoscoliosis with significant imbalance. Dr Rao wrote:
“On the right at L4/5 and L5/S1 the foramina is narrow and left L3/4 foraminal narrowing is also present. Surgical management to construct fusion and correct the deformity will be required at some point. Mrs Singh was hesitant to undergo any major surgery at the moment.”
Dr Rao recommended bilateral sacroiliac joint injections for diagnostic, prognostic and therapeutic benefit “however short term”.
In a report dated 19 August 2022 Dr Rao noted he would send a request to the insurer for a trial of bilateral radiofrequency ablation. He reported that the injections gave her good pain relief for the first two weeks, but the pain has returned since. He noted that the applicant now felt that her pain was severe and she was finding it difficult to do her daily activities. Dr Rao recommended a trial bilateral radiofrequency ablation as this was likely to give her longer term results (medium term 6-24 months). Dr Rao noted it was expected to improve symptoms in 80% of patients.
In a report dated 29 September 2022, Dr Rao noted that the applicant’s pain had returned in severity, and she continued to struggle daily, was not able to walk properly without holding onto thinks and had gained 6kg in weight. He expressed the opinion that with ablation surgery, post rehabilitation supports and losing weight the applicant would have a good chance of recovery. He noted that unfortunately the insurer had not approved the radiofrequency ablation and would follow that up.
In a report dated 20 July 2023, Dr Rao noted that he had consulted with the applicant on
25 November 2021, 22 December 2021, 10 January 2022, 18 February 2022,
18 August 2022 and 15 September 2022. He expressed the view that treatment with radiofrequency ablation will improve the pain thus allowing the applicant to return to her usual activities of daily life and living including pre-injury duties. In terms of the actual or potential effectiveness of the treatment he considered that there was 70% chance of improvement with radiofrequency ablation and lasts 12- 24 months.
Dr Rao noted that the applicant had trialled injections which gave her short term relief. He described radiofrequency ablation as a day procedure and “not really a surgical procedure”. He considered that the next step was radiofrequency ablation followed by physiotherapy for SIJ strengthening exercises. Dr Rao was of the view that the procedure will allow Mrs Singh to get back to some form of normalcy, reducing her pain, and improve function and return back to work.
In a request dated 10 October 2024 for surgery for left L2-S3 radiofrequency ablation and caudal epidural injection, Dr Rao set out his fees for two procedures which totalled $10,512.50. He noted that the applicant was “now experiencing severe low back pain” and required a walking stick for ambulation, even at home.
In a report dated 5 December 2023, Dr Prakash Damodaran, treating neurosurgeon and spine surgeon, noted that the applicant’s mobility has significantly deteriorated due to progressive back pain and leg pain. He made a diagnosis of severe lower back pain and right-sided lumbar radiculopathy. Dr Damodaran noted that surgical options included a minimally invasive lumbar decompression at L3-4 L4-5 and L5-S1 or a scoliosis correction from L2 to S1 with interbody cages with a combination of anterior and lateral approaches. He noted that first option has limitations and also has a risk of failure while the second option was a fairly extensive surgery with high risk of complications and long recovery.
In a report dated 3 March 2025, Dr Bhisham Singh, treating spine surgeon, noted that the applicant had been been getting worse since the work injury, and now needs surgery as she has significant symptoms of pain, poor standing and sitting tolerance, and is unable to walk without a walking aid. He noted that the MRI scan and EOS scan from I-Med Radiology does show that she has stenosis and scoliosis in the lumbar spine. Dr Singh wrote:
“Unfortunately she is failing conservative treatment and her surgical option is to have a decompression and fusion but because of the deformity has to extend from T10 to pelvis…In the presence of her condition, decompression only surgery at one or two levels is likely to destabilise her spine.”
In his clinical notes dated 3 March 2025, Dr Singh noted that the applicant had a decreased range of motion of the lumbar spine in forward flexion and extension. Under balance he noted: “Poor coronal and sagittal balance”. He reported that sensory examination of the lower limb shows intact sensation to light touch from L2 to Si bilaterally. He noted that reflexes were depressed, straight leg test is negative bilaterally and Cronus and Babinski's were both negative.
Dr Singh noted that the surgical option was to have a decompression and fusion but because of the deformity had to extend from T10 to pelvis.
In an estimate of fees for surgery dated 4 March 2025, Dr Singh estimated stage 1 fees totalling $9,996 and stage 2 fees totalling $26,860.50.
In a report dated 18 July 2025, Dr Singh noted that the applicant had significant symptoms of pain, poor standing and sitting tolerance, and is unable to walk without a walking aid. He wrote:
“She is failing conservative treatment and her surgical option is to have a decompression and fusion. Imaging does show that she has stenosis and scoliosis in the lumbar spine, and as a result of the deformity the fusion has to extend from T10 to pelvis. In the presence of her condition, decompression only surgery at one or two levels is likely to destabilise her spine, therefore fusion surgery is reasonably necessary.
The proposed treatment is aimed at decompressing the nerves and stabilising the injured motion segments, thereby improving her pain and function. The aim of the surgery is to return to pre-injury duties and improve function for activities of daily living 6 to 12 months following surgery.”

Discussion

The matter to be determined is whether the surgery proposed by Dr Singh, namely, a L4/S1 anterior lumbar interbody fusion (stage 1) and T10 to pelvis, posterior spinal fusion (stage 2) is reasonably necessary as a result of the injury to the cervical spine on 11 November 2021.
For medical treatment to qualify as “reasonably necessary” it must be appropriate, including in the context of mitigating the effects of any injury to cure, alleviate, sustain the status quo, or to negate and stem progressive deterioration. It can be a question of degree to which treatments effectively alleviate injury symptoms and address pain management. There is a line of cases consistent with this analysis including Rose v Health Commission (NSW) (Rose) [1986] 2 NSWCCR 32.
Burke J in Rose (at pages 47-49) set out some general principles in relation to the issue of whether a particular regimen was medical treatment and whether it was reasonably necessary:
“1.     Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.     However, though falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the party seeking to do so). If is shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purpose of the Act.
3.     Any necessity for relevant treatment results from injury where its purpose and potential effect is to alleviate the consequences of the injury.
4.     It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to and should not be forborne by the worker.
5.     In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for this particular condition.”
The matters to be considered in a s 60 claim include the matters noted by Burke CCJ in Rose (supra) namely:
·        the appropriateness of the particular treatment;
·        the availability of alternative treatment, and its potential effectiveness;
·        the cost of the treatment;
·        the actual or potential effectiveness of the treatment, and
·        the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
In Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) Roche DP observed at [89] that:
“With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts…
[105] …on its own, a reduction in pain after the particular treatment does not necessarily ‘meet’ the test of reasonably necessary in section 60, it is a factor that can be considered in determining that issue. More importantly, it should be considered in light of the expert evidence and relevant history of the development of the symptoms…”
The treating spinal surgeon, Dr Singh, on 18 July 2025 noted that the applicant had significant symptoms of pain, poor standing and sitting tolerance, and was unable to walk without a walking aid. He considered that she was failing conservative treatment and her surgical option was to have a decompression and fusion. He noted that imaging showed that the applicant has stenosis and scoliosis in the lumbar spine, and because of that deformity the fusion has to extend from T10 to the pelvis. He considered that in the presence of her condition, decompression only surgery at one or two levels was likely to destabilise her spine, and therefore fusion surgery was reasonably necessary.
Dr Singh stated that the proposed treatment was aimed at decompressing the nerves and stabilising the injured motion segments, thereby improving her pain and function. The aim of the surgery was to return to pre-injury duties and improve function for activities of daily living 6 to 12 months following surgery.
Dr Khong noted that the applicant had been debilitated by pain since her workplace injury over three and a half years ago. He noted that her imaging demonstrated a thoracolumbar scoliosis. He was of the view that a L4 – S1 anterior lumbar interbody fusion and T10 – pelvis spinal fusion was reasonably necessary treatment. He considered that the applicant had failed all non-operative management options and will not improve without surgery. He described the aim of the surgery as correcting her deformity and immobilising the painful motion segments of her spine. He noted that the correction of her deformity also aimed to decompress the neural elements to help with her lower limb symptoms.
Dr Khong acknowledged that while it may be possible to address her pain with a shorter segment fusion, this may cause imbalance or adjacent segment disease, requiring further surgery after her initial surgery. Dr Khong considered that a T10 – pelvis fusion was appropriate and likely to be effective for her pathology in the setting of intolerable back pain and significant multi-level degenerative changes and scoliosis.
Dr Richard Powell recommended continued conservative management, namely, more active self-directed exercise programme incorporating some regular core strengthening and flexibility work, some pool based exercises and a reduction of her body mass index. He considered that the intermittent use of medications to assist in symptom control was reasonable.
However, it is clear from the appellant’s statements and the medical reports that the applicant’s use of medication is more that intermittent. Dr Khong noted that the applicant currently takes Endone, Panadeine Forte, Voltaren and uses Painaway spray for pain. The applicant, in her statement dated 9 February 2024, said that she was still reliant on pain medication, including Endone and could not live without this as she was otherwise in agony. In her statement dated 3 July 2025, she said that she was currently taking three Endone and sometimes six Panadeine Forte due to her constant excruciating pain.

Dr Richard Powell considered that the overall prognosis was poor and the natural history was for continued deterioration over time with her lower back remaining a source of ongoing symptoms and functional limitations into the future. He did not believe that the applicant would ever return to her full pre-injury duties and the prospects of obtaining alternative employment opportunities in her current situation were low.
In a supplementary report dated 10 April 2025, Dr Richard Powell expressed the view that the surgery proposed by Dr Singh would not be considered reasonably necessary for the management of any injury sustained in the course of her employment. He considered that the surgery addresses the longstanding pre-existing multilevel degenerative and structural pathology in the lumbar spine and was not required on the basis of any injury sustained in the workplace incident on 11 November 2021.
In my view, Dr Richard Powell’s opinion as to whether the proposed surgery is reasonably necessary must been seen in the context of his opinion that the applicant had sustained an aggravation to pre-existing pathology in the work incident and that such aggravation had been temporary and settled. Dr Richard Powell qualifies his opinion as to the whether the proposed surgery is reasonably necessary by stating that the surgery is not required or necessary for the management of any injury sustained in the course of her employment. The respondent has conceded that the only issue for determination is whether the proposed surgery is reasonably necessary.
Dr Richard Powell expressed the view that the surgery proposed by Dr Singh was a major undertaking in a lady of this age with her associated comorbidities and elevated body mass index. He considered that although the investigations did reveal evidence of multilevel degenerative pathology within the lumbar spine in the absence of progressive neurological compromise or significant instability it is difficult to justify combined anterior and posterior interbody fusions that incorporate a seven level fusion.
It appears that Dr Richard Powell did not consider that the applicant has progressive neurological compromise or significant instability. However, Dr Khong noted that the surgery proposed not only would correct her deformity also aimed to decompress the neural elements to help with her lower limb symptoms. Dr Rao in 2022 reviewed the MRI which he stated showed kyphoscoliosis with significant imbalance. Dr Singh noted that the applicant had poor coronal and sagittal balance. Dr Singh stated that the aim of the proposed surgery was decompress the nerves and stabilise the injured motion segments, thereby improving her pain and function.
I am satisfied that the applicant’s condition has deteriorated since her work injury on
11 November 2021 and there has been a decline in her function. She has symptoms including pain, numbness, weakness, tingling, and problems with balance and walking, which have progressed since her work injury.
I note that Dr Richard Powell is an orthopaedic surgeon. Dr Singh is an orthopaedic and spine surgeon, Dr Khong is a neurosurgeon and spine surgeon, Dr Rao is a neurosurgeon and spine surgeon and Dr Nair is a spinal surgeon. I regard Drs Singh, Khong, Rao and Nair as more qualified to express a view as to appropriate treatment than Dr Richard Powell, who is not a spine surgeon or neurosurgeon.
Dr Richard Powell also considered it difficult to predict how a patient such as the applicant who is in her mid-60s, has significant ongoing symptoms related to previous bilateral shoulder and knee surgery, poor level of overall fitness and a markedly elevated body mass index will respond to a seven level spinal fusion. He considered it extremely unlikely that the surgery will result in significant symptomatic functional improvement that will facilitate a return to the workplace. He acknowledged that the applicant does suffer from significant lower back symptoms and is experiencing chronic pain relating to the degenerative pathology in the lumbar spine “though failure of conservative management to result in significant symptomatic and functional improvement is not in itself an indication for surgery”.
Dr Powell did not indicate the basis for his comment that the applicant had significant ongoing symptoms related to previous bilateral shoulder and knee surgery. In the booking form for Norwest Day Hospital completed by the applicant and dated 10 January 2022, she provided a history of having bilateral knee replacements in 2013 and a left shoulder repair in 2020. I also note that in respect of the shoulder issues, the applicant had surgery performed on the right shoulder in January 2024. The applicant returned to her full duties as a registered nurse following the bilateral knee replacements and there appears to be no reference in any of the medical reports to any ongoing problems in relation to her knees.
Dr Richard Powell did not identify any significant ongoing symptoms related to previous bilateral shoulder and knee surgery in his reports. I do not accept that Dr Richard Powell took an accurate history in respect of symptoms following the knee surgery or shoulder surgery. Indeed, Dr James Powell in his report dated 24 February 2023 noted that the applicant found that there was considerable improvement in her left shoulder in movement, strength and improvement of pain following the surgery in October 2020.
Dr Richard Powell also referred to the applicant’s poor level of overall fitness and a markedly elevated body mass as factors that made it difficult to predict how she would respond to the proposed surgery. I have no doubt that Dr Singh has taken these factors into account when recommending the proposed surgery. I regard these as matters that as the treating orthopaedic and spine surgeon he is better able to assess than Dr Richard Powell.
The applicant is a registered nurse. I accept her evidence, that her condition deteriorated following her work injury on 11 November 2021 to the extent that she required a walking stick by the time she made her second statement on 9 February 2024.
In her statement dated 3 July 2025, the applicant stated that her back injury “is currently very bad, and the only way that I will be able to recover is if I undergo the requested surgery on my back.” She wrote: “At the moment. without any surgery, the condition of my back is continually deteriorating. My back is the worst it has ever been.”
The applicant described being in excruciating pain and stated that nothing seems to alleviate her symptoms.
The applicant stated that she sought a second opinion from Dr Bhisham Singh after seeing Dr Rao and Dr Singh advised that a different procedure was more appropriate for her injuries.
I am satisfied that the applicant is willing and prepared to proceed with the proposed surgery.
Dr Singh and Dr Khong both express the opinion that the proposed surgery is appropriate treatment for the applicant’s symptoms. Dr Rao, in February 2022, expressed the opinion that the applicant would require surgical management “to construct fusion and correct the deformity” at some point. Dr Nair, in September 2022, considered that a spinal fusion. may be required in the future.
I accept that the applicant has not undergone radiofrequency ablation, but I am not persuaded that this should preclude the applicant being able to undergo other appropriate and necessary treatment.
There was some question about whether radiofrequency ablation was a surgical procedure. I accept that Dr Rao described radiofrequency ablation as a day procedure and “not really a surgical procedure”. However, in his report dated 20 July 2023 Dr Rao uses the term “ablation surgery” and noted that he was reattaching his request for surgical intervention, that being the radiofrequency ablation. I am satisfied that ablation surgery is a minimally invasive procedure which requires an epidural anaesthetic and admission into hospital for a day. On balance, I am satisfied that radiofrequency ablation can be described as a non-invasive surgical procedure.
I am satisfied that the applicant has exhausted all alternative non-surgical treatment. She has had lumbar spinal injections, physiotherapy, hydrotherapy, psychological support, and multiple types of pain relief medication. I accept her evidence that none of these treatments have made a significant difference to her condition which has continued to deteriorate.
As noted above, I accept that the applicant has not undergone radiofrequency ablation treatment, which was first requested in 2022 but not approved by the insurer until 7 February 2025. I am satisfied that the applicant’s condition has deteriorated considerably since radiofrequency ablation treatment was first requested. Although she bought proceedings in the Commission in 2024, claiming such treatment, she subsequently and quite reasonably sought a second opinion from Dr Singh in early 2025. He was of the view that the applicant should undergo a L4/S1 anterior lumbar interbody fusion (stage 1) and T10 to pelvis, posterior spinal fusion (stage 2).
It is important to note that radiofrequency ablation treatment provides short term relief for 6 -24 months and does not address issues such as instability in the spine. The cost of radiofrequency ablation is quite significant for treatment that provides short to medium term relief. I do not accept that radiofrequency ablation surgery is potentially effective long term.
While radiofrequency ablation surgery may have been a reasonable option in 2022 when first requested and would have provided some temporary relief, I am satisfied that the applicant’s condition had deteriorated, and she now requires a more permanent form of treatment that addresses her condition long term. There is, in my view, no other form of treatment that now offers the applicant long term relief. While I accept that the proposed surgery is complex and extensive surgery, the weight of the medical opinion in this matter supports a finding that it is appropriate and necessary treatment for the applicant at this stage.
I am satisfied that the proposed for L4/S1 anterior lumbar interbody fusion (stage 1) and T10 to pelvis, posterior spinal fusion (stage 2) is an appropriate form of treatment and accepted by medical experts as being appropriate and likely to be effective. Although the cost is not insignificant, it has the potential to alleviate the radicular component of the pain that the applicant experiences and therefore to improve her functioning. Dr Nair noted that such an intervention costs approximately $50,000 depending on the number of levels required.
Dr Singh’s estimate of his fees was about $36,856.
I am satisfied that the proposed L4/S1 anterior lumbar interbody fusion (stage 1) and T10 to pelvis, posterior spinal fusion (stage 2) are an accepted neurosurgical procedures for the treatment of lumbar radiculopathy that is correlated with imaging findings and has failed to respond to a comprehensive course of conservative management. Dr Nair stated that the procedure is accepted treatment by a quorum of spinal surgeons for significant spinal deformity with consequent neurocompressive lesions.
The applicant sustained an injury to her lumbar spine on 11 November 2021. I find that the proposed medical treatment, namely, a L4/S1 anterior lumbar interbody fusion (stage 1) and T10 to Pelvis, Posterior Spinal Fusion (stage 2) is reasonably necessary as a result of the injuries on 11 November 2021.
I order that the respondent is to pay the applicant’s s 60 expenses in respect of the treatment proposed by Dr Singh , namely, a L4/S1 anterior lumbar interbody fusion (stage 1) and T10 to pelvis, posterior spinal fusion (stage 2) and associated treatment expenses as a result of the injury on 11 November 2021 on production of accounts and/or receipts.

[2025] NSWPIC 560

17 October 2025