Smith v North Fresh Pty Limited t/as Guyra Tomato Farm/Tomato Exchange

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Smith v North Fresh Pty Limited t/as Guyra Tomato Farm/Tomato Exchange [2022] NSWPIC 655
APPLICANT:	Warwick Smith
RESPONDENT:	North Fresh Pty Ltd t/as Guyra Tomato Farm/Tomato Exchange
Member:	Jane Peacock
DATE OF DECISION:	28 November 2022
CATCHWORDS:	WORKERS COMPENSATION - Injury to lower back not disputed; prior surgery at L5/S1 level; surgery at L4/L5 now sought and disputed; it was disputed that surgery at L4/5 was reasonably necessary as a result of the injury; Held – evidence weighed in the balance and on the balance of probabilities held the surgery resulted from the injury; award for the worker.
determinations made:	1. By consent, the applicant has leave to amend the Application to Resolve a Dispute to clarify that the order sought is in respect of surgery in the form of a L4-L5 microdiscectomy as proposed by Dr Al Khawaja. 2. Award for the applicant under s 60 of the Workers Compensation Act1987 in respect of the costs of and incidental to surgery in the form of L4-L5 microdiscectomy as proposed by Dr Al Khawaja on production of accounts and/or receipts.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (Application) filed by the applicant, Mr Warwick Smith (Mr Smith) seeks a determination that proposed surgical treatment in the form of L4-L5 microdiscectomy, as proposed by his treating surgeon Dr Al Khawaja, is reasonably necessary as a result of injury to his lumbar spine at work on 19 December 2008 and on 6 March 2009.
The respondent is North Fresh Pty Ltd t/as Guyra Tomato Farm/Tomato Exchange (North Fresh) was insured for the purposes of workers compensation.
North Fresh denied liability for the proposed surgery.

ISSUES FOR DETERMINATION

There is no dispute that Mr Smith suffered an injury to his lower back at work on 19 December 2008 and on 6 March 2009 which for ease of reference both will be subsequently referred to as the subject injury.
He has been paid weekly compensation and treatment expenses in respect of the subject injury and he came to surgery in 2010 in the form of L5/S1microdicetomy at the hands of Dr Sheehy.
Mr Smith has received lump sum compensation in respect of 12% whole person impairment (WPI) consequent upon assessment by an Approved Medical Specialist in 2011 in proceedings in the former Workers Compensation Commission, Dr English, who issued a Medical Assessment Certificate (MAC) certifying 12% WPI.
Mr Smith now seeks to have spinal surgery as recommended by his treating specialist
Dr Al Khawaja in the form of a L4-L5 microdiscectomy.
North Fresh disputes that the surgery proposed by Dr AL Khawaja is reasonably necessary as a result of the subject and disputes that the proposed surgery is reasonably necessary at all. North Fresh seeks that an award be made in its favour.

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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) having been admitted by consent and were considered in making this determination:
For Mr Smith
·        The Application and attached documents.
For North Fresh
·        The Reply and attached documents.
·        Late documents filed with an Application to Admit Late documents dated 2 November 2022.

Oral evidence

Mr Smith did not seek leave to adduce oral evidence.
Counsel for did not seek leave to cross-examine Mr Smith.

FINDINGS AND REASONS

There is no dispute that Mr Smith suffered an injury to his lumbar spine at work in December 2008 and again on 6 March 2009 and which for ease of reference these dates of injury will be referred to as the subject injury.
He previously came to surgery on 10 May 2010 at the L5/S1 level which was paid for by the insurer.
Mr Smith now seeks to have the spinal surgery at the L4-L5 level as recommended by his treating specialist Dr Al Khawaja.
North Fresh disputes that the proposed surgery is reasonably necessary as a result of the subject injury. North West disputes that the proposed surgery is reasonably necessary surgery at all.
I must determine, on the balance of probabilities, whether the proposed surgery in the form of an L4-L5 microdiscectomy as recommended by the treating surgeon Dr Al Khawaja is reasonably necessary as a result of the subject injury. This determination must be made on the evidence and in accordance with the law.
Section 60 (1) of the Workers Compensation Act 1987 (1987 Act) provides as follows:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that—
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
Deputy President Roche in Diab v NRMA [2014] NSWWCCPD 72 (Diab) provided a useful summary of the authorities dealing with whether medical expenses are “reasonably necessary” as a result of injury as required under s 60 and set out the approach that is to be adopted.
Deputy President Roche in Diab said as follows:
“76.   The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) (1986) 2 NSWCCR 32 (Rose) where his Honour said, at 48A-C:
‘3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.’
77.   The Commission has applied this test in several cases (see, for example, Ajay Fibreglass Industries Pty Ltd t/as Duraplas Industries v Yee [2012] NSWWCCPD 41 at [67]).
78.   In addition, the Commission has been guided by, and generally followed, the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233 (Bartolo), where his Honour said, at 238D:
‘The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.’
79.   The Arbitrator quoted and applied these statements in the present matter. Subsequent appellate authority suggests that this approach may not be strictly correct.
80.   The Court of Appeal considered the meaning of ‘reasonably necessary’ in Clampett v WorkCover Authority (NSW) (2003) 25 NSWCCR 99 (Clampett). That case concerned whether proposed home modifications for a paraplegic were ‘reasonably necessary’ having regard to the nature of the worker’s incapacity. Grove J (Meagher and Santow JJA agreeing) noted that the trial judge had sought guidance from Rose and Pelama Pty Ltd v Blake (1988) 4 NSWCCR 264 (Pelama), another decision by Burke CCJ where his Honour applied the principles discussed in Rose and Bartolo.
81.   Grove J referred to the dictionary definition of ‘necessary’ as being ‘indispensable, requisite, needful, that cannot be done without’ (Shorter Oxford English Dictionary, 3^rd ed) and ‘that cannot be dispensed with’ (Macquarie Dictionary).
82.   His Honour added, at [23]–[24]:
‘23. The essential issue is what effect flows from conditioning such qualities as “reasonably”. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word “necessary” if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker’s home, having regard to the nature of the worker’s incapacity, is reasonably necessary. In contemplation of what might be “reasonably necessary” there is this statutory obligation specifically to have regard to the nature of the worker’s incapacity. It provides emphasis towards moderating the meaning of “necessary” in this context.
24.The statute does not inhibit inquiry as to what may be thought reasonable in all, or in any particular, circumstances but its terms clearly point to predominant attention being paid to the nature of the worker’s incapacity. In my opinion, to reject the appellant’s proposal on the basis that expenditure is to be made on premises of which he is a weekly tenant is an elevation rather than a moderation of the meaning of “necessary”.’
83.   It is important to remember that Grove J’s reference in the above passages was in the context of a claim for home modifications under s 59(g). That subsection is restricted to claims for modification of the worker’s home or vehicle directed by a medical practitioner ‘having regard to the nature of the worker’s incapacity’ (emphasis added). Apart from s 59(f), which deals with care (other than nursing care), there is no such restriction in the other subsections in s 59.
84.   In Wall v Moran Hospitals Pty Ltd t/as Annandale Nursing Home, Burke CCJ, unreported, Compensation Court of NSW, 30 June 2003, Burke CCJ acknowledged (at [10]) that, contrary to Rose and Pelama, Clampett held that the word ‘reasonably’ was ‘effectively used as a diminutive and moderated the effects of the word ‘necessary’.
85.   The approach in Clampett is consistent with the modern approach to statutory interpretation, which is to construe the language of the statute, not individual words (Sea Shepherd Australia Limited v Commissioner of Taxation [2013] FCAFC 68 per Gordon J (Besanko J agreeing)). Thus, ‘reasonably necessary’ is a composite phrase in which necessity is qualified so that it must be a reasonable necessity (Giles JA (Campbell JA agreeing) in ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48] (O’Shea)). The Court, Bathurst CJ, Beazley and Meagher JJA, followed this approach in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113] (Moorebank).
86.   Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.
87.   Giles JA added (at [49] in O’Shea) that the qualification whereby the necessity must be reasonable calls for an assessment of the necessity having regard to all relevant matters, according to the criteria of reasonableness. His Honour was talking in the context of whether an easement should be granted under s 88K of the Conveyancing Act 1919, which provides that ‘the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement’. However, his Honour’s observations are applicable in the present matter and are clearly consistent with Clampett.
88. In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
a.the appropriateness of the particular treatment;
b.the availability of alternative treatment, and its potential effectiveness;
c.the cost of the treatment;
d.the actual or potential effectiveness of the treatment, and
e.the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
89.   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.
90.   While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”
As Deputy President Roche said in Diab each case will depend on its own facts.
Turning then to an examination of the evidence in this case.
Mr Smith gave evidence in a statement dated 10 August 2022.
Mr Smith gave evidence about the injury on 19 December 2008 and further injury on 6 March 2009. Injury is not in dispute.
Mr Smith gave evidence that in view of persisting symptoms of back pain and left leg pain as a result of the subject injury he underwent surgery in 2010 at the hands of Dr Sheehy in the form of L5/S1 microdiscectomy.
Mr Smith gave evidence of some resolution of left leg pain after surgery but persistence of back pain and then worsening back and left leg pain over time.
That Mr Smith continued to experience pain and restriction after the 2010 surgery is consistent with the assessment by Approved Medical Specialist Dr English who issued a MAC on 4 November 2011 certifying 12% WPI as a result of the subject injury. Dr English diagnosed that Mr Smith had suffered an acute lumbosacral disc prolapse with left leg sciatic treated surgically with resolution of leg pain but not back pain.
Dr English had reviewed the radiological investigations pre and post the 2010 surgery of which he noted:
“I note the initial MRI of 4 February 2010 which is unreported but demonstrates disc degenerative disease at L4/5 and L5/S1 with a left sided posterolateral L5/S1 disc protrusion probably irritating the left S1 nerve root.
MRI post surgery dated 13 January 2011 demonstrates either recurrent or residual L5/S1 disc protrusion with probable interference in the left S1 nerve root.”
Mr Smith gave evidence that his leg pain returned and his back and left leg pain worsened over time.
Mr Smith gave evidence that in view of persisting back and leg pain he was advised in August 2014 by Dr Pik to have spinal fusion surgery.
Mr Smith gave evidence that in view of the risks involved he decided not to undertake the fusion surgery.
Mr Smith gave evidence that his back and leg pain continued throughout 2015 and into 2016 so he consulted with Dr Pik again in May 2016 who advised cortisone injections into the left hip which were undertaken.
Mr Smith gave evidence that the injections afforded some relief for about six months but returned worse than before. He therefore saw Dr Pik again on 20 June 2017 who advised a further injection which was undertaken in late June 2017.
Dr Pik ordered an MRI which was undertaken on 13 November 2017.
On 30 April 2018 he saw Dr Pik again for review who recommended that his pain symptoms continued to be conservatively managed but that a fusion might become necessary if the pain worsened.
Mr Smith gave evidence that he continued to be in pain throughout 2018 to 2019 and it began to worsen as follows:
“throughout 2018 to 2019, I continued to face pain in my lower back. Eventually the pain began to worsen while I was working, especially from prolonged periods of standing”.
He experienced “immense pain” and back spasms which would require him to rest. Eventually he had to resign from BCF where he worked as a sales assistant.
In August 2019 he saw Dr Pik again who ordered another MRI.
Dr Pik advised further injections for pain management.
On 4 September 2019 Mr Smith had a further injection. Mr Smith gave evidence:
“On or about 4 September 2019 I had a CT guided steroid injection administered to my lower back. The injections were only of moderate help but I continued to face significant lower back pain that radiated to my left leg and hip. I feared that my body was becoming resilient to the injections.”
Dr Smith saw Dr Pik after the injection who recommend fusion surgery. Mr Smith gave evidence as follows:
“on or about 9 September 2019 I consulted with Dr Pik about my continued lower back symptoms despite the injections. Dr Pike advised that I must undergo the previously discussed fusion surgery. I agreed after being told the risks and benefits. The surgery did not go ahead, as the insurer did not approve funding for it.”
Mr Smith gave evidence that he continued to face pain and restrictions.
Mr Smith gave evidence that his general practitioner (GP) Dr Langley advised him In January 2022 to have CT guided injections in to his right hip. Due to COVID these injections were delayed and not administered until June 2020. Mr Smith gave evidence that he experienced some relief but continued to face pain in his lower back.
He gave evidence that the back pain then began to settle after the injections so he started to work at BCF again for four hours per week and did some work with his local tourism group doing cultural talks for three hours a week.
He gave evidence as follows:
“Although I still had ongoing pain, I had hope that I would be alright one day. I continued to find it difficult to look after my children and would often wake up with pain in my lower back.”
He went onto give evidence of an incident in February 2022 just standing up at the beach and being in “excruciating pain” as follows:
“On or about 4 February 2022, I was at the beach with my family and suddenly felt excruciating pain in my lower back and left leg when trying to stand up. I struggled to walk to my car and felt horrible pain the rest of the day. I was unable to recover as I could not lay or sit, making it difficult to rest. I took the rest of the week off work.”
I note that this excruciating pain was felt from the innocuous endeavour of simply standing up.
He gave evidence that he returned to work on 7 February 2022 but could not last more than 30 minutes into the shift. He went to his GP Dr Langley about the flare up in pain who ordered another MRI.

The further MRI was undertaken on 24 February 2022.
On 25 February 2022 the GP referred Mr Smith to Dr Al Khawaja, neurosurgeon.
Mr Smith gave evidence that In April 2022 he was forced to resign from BCF because of ongoing pain in lower back and left leg.
Mr Smith gave evidence that he saw Dr Al Khawaja in June 2022 who recommended the proposed surgery as follows:
“On or about 22 June 2022 I consulted with neurosurgeon Dr Al Khawaja. Dr Al Khawaja reviewed my MRI scan results and the worsening of my lower back condition over time and I informed him that my lower back and left leg had been causing problems for me for more than 10 years. Dr Al Khawaja advised that I should undergo surgery on my lower back in the form of a microdiscectomy and informed me of the benefits and risk associated. I agreed to this surgery with Dr AL Khawaja and am waiting on the insure to approve this procedure.”
Mr Smith gave evidence about the pain he continues to be in and the consequential restrictions on his enjoyment of life as follows:
“Currently I continue to face constant pain in my lower back and left leg, with occasional spasm which cause the pain to become unbearable. The pain often radiates through my buttocks occasionally into my left knee and foot. I am unable to spend time with my children and my injury has significantly impacted my personal life with my wife. I can no longer undertake activities I used to enjoy, such as fishing which has left me feeling hopeless. I constantly wake up with stiffness in my lower back and I can no longer complete household tasks such as cleaning and mowing the lawn. As I have not worked for intermittent periods I have not been able to afford doctor consultations.”
Mr Smith gave evidence that he is aware of the risk associated with the surgery but he wants to have the surgery to get relief from constant pain as follows:
“I agree with the opinions of my treating specialists. I have had the risks and benefits of the surgery explained to me by Dr Al Khawaja and have had the opportunity to asks questions and do my own research. I have never experienced pain like this prior to my injury and I was a very fit and string willed individual who used to enjoy a range of sport like football and fishing, I am willing to do what it takes to gain some form of relief to my lower back and leg pain and to return to work to support my family . I have lived in constant pain for more than 10 years now and I feel frustrated that I have been able to return to my life as usual since.”
In view of his persistent and worsening symptoms. Mr Smith was referred by his GP Dr McGoldrick to see Dr Al Khawaja, neurosurgeon, brain and spinal surgeon.
Dr Al Khawaja saw Mr Smith on 5 May 2020 on referral from his GP.
Dr Al Khawaja wrote back to the GP on 5 May 2022 as follows:
“Clinical presentation
Mr Smith is a 37 year old gentleman who came to me with his lower back and left leg pain, Mr Smith had back surgery in 2010 under the care of Dr Sheehy, Mr Smith did well after that then 2 years ago, he had a back injury and he was reviewed by Dr Pik and he asked for approval for surgery but he told me it was denied, Mr Smith had started with some pain management and some exercising and injections, Mr Smith could manage till February when he just stood up and he stayed getting server lower back pain, the pain started by getting to the left leg at L4 and L5 distributions. Mr Smith took some time off and he is back at work 2 weeks ago. Mr Smith describes 8/20 to 10/10 pain in the back going to the left leg at L4 and L5 distributions.”
Dr Al Khawaja conducted a physical examination of Mr Smith of which I note there were positive findings on examination consistent with both Mr Smith’s complaints of pain and consistent with the radiological evidence. Dr Al Khawaja reported his examination findings as follows:
“His examination showed positive Trendelenburg test on the left side. Mr Smith had decreased sensation at left L4/L5 level and he had weakness of the left foot dorsiflexion of power 4+/5.”
Dr Al Khawaja had regard to the imaging being the MRI of the lumbar spine in February 2022 and noted it showed:
“Significant injury at L4/5 and L5/S1 levels. These could be called L3/L4 and L4/L5 levels anatomically and there is pressure on the left L5 nerve root.”
Dr Al Khawaja wrote of his recommendation as follows:
“I talked to Mr smith about the treatment options in detail. Mr Smith has tried pain management, he tried everything. I recommend we start simple and just decompress the left nerve root at L4/:5 level by microdiscectomy. If this works , it will be great news. If it does not, he may need fusion in the second stage and his is very aware of that. Mr Smith is happy with this plan, I made it clear to him that it is better to start simple but I am not sure if this is going to work, The risk from surgery are small, including bleeding, infection, nerve injury, weakness , fluid risk, Anasethic risk, reaction to medication and disc recurrence. Mr Smith is happy with this plan, I am requesting approval from EML for Mr Smith to have left L4/L5 microdiscectomy, I will perform the procedure as soon as I get the approval (could be called left L3.4lL4 microdiscectomy as well).”
I note that for surgery to be considered reasonably necessary it does not have to be guaranteed of success. As Deputy President Roche said in Diab:
“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.”
Dr Al Khawaja provided a report to Mr Smith lawyers on 10 August 2022 answering a series of questions from them as set out below.
As to history, Dr Al Khawaja answered as follows:
“I reviewed Mr Smith on 5 May 2002. Mr Smith is a 37 year old gentleman who came to me with lower back pain and left leg pain, Mr Smith had an injury to his back on 6^th of March 2009. this required surgical intervention in 2010 under the care of Dr Sheehy. Mr Smith did well after that, then 2 years ago , he had an injury and he was revied by Dr Pik who recommended surgical intervention to fuse his spine from L3 to S1. Mr Smith wanted to do an injection under the care of Dr Pik but it did not help. The surgery was declined by the insurance company. Mr Smith started pain management and exercising as well. Mr smith could manage hardly until February when he just stood up and started getting severe lower back pain going down to the left leg at L4 and L5 distribution. Mr Smith took some time off then he was back at work 2 weeks prior to his presentation to see me. His investigation showed increase in the size of disc herniation at L4/L5 level and I recommended surgical intervention.”
As to injury and diagnosis, Dr Al Khawaja wrote as follows:
“the main injury Mr Smith has sustained is to his lumbar spine at L4/:5 level (it can be called L3/L4 level with increase in the size of the disc herniation giving him significant disability and leg pain. So, it is aggravation of a previous work injury affecting L4/L5 level causing increase in the disc herniation and increase in the leg pain.”
As to causation, Dr Al Khawaja wrote as follows:
“Mr Smith has significant disability from his lumbar spine injury. Mr smith has a significant work injury, requited surgical intervention in 2010 and he had further work injury and aggravation of his injury affecting the lower three levels when Dr Pik asked for lumbar spine (fusion) from L3 to S1.
I do not agree with Dr Casikar’s opinion and I do not agree with the insurance company declining he surgery for Mr Smith, Mr smith problem started with work injury at L5/S1 level and then he had further injuries affecting the lower there levels and he had an evidence of a disc herniation at L4/5 level and now the size of the disc herniation has increased. The work injury is responsible for his current symptoms for many reasons. The most important reason is he had an injury at L5/S1 level which means the L5/S1 level will never function normally, and the strain will go higher up to the levels above, and this can happened even without further work injury. In spite of that Mr smith had another work injury which aggravated the symptoms even more. So the L4/5 injury can come without even an accident just because of the previous L5/S1 injury and L5/S1 surgery, and this is well known in the literature. SI, in my opinion, recurrent injuries and adjacent segment strain because of the previous injury at L5/S1 are responsible for Mr Smith’s recurrent symptoms, So his work injuries are the major contributing factor to his current symptoms.”
As to treatment, Dr Al Khawaja wrote as follows:
“As I mentioned earlier, Mr smith has a surgical intervention done by Dr Sheehy and he went through pain management and cortisone injections. His surgery by Dr Pik was declined, In my opinion, Mr Smith at this stage requires at least redo discectomy L4/5 level on the left side and I hope this will help his leg pain, but of he keeps having lower back pain, he may require further surgery to fuse the spine at multiple levels. L4/5 microdiscectomy is reasonably necessary because he has got large disc herniation pushing on his nerves on the left side giving his current symptoms, and surgery can give a good chance for his symptoms to improve. The potential effect of the surgery is to alleviate the consequence of his injury. It is the most appropriate treatment for Mr Smith at this stage. Mr Smith had gone through every type of conservative treatment which failed and did not help his symptoms. The microdiscectomy procedure is usually effective and the sooner the better to help the patient. The delay in this surgery can cause permanent damage and cam affect the success rate.”
As to Prognosis, Dr Al Khawaja wrote as follows:
“The prognosis is guarded at the moment, everything depends on the result from surgical intervention as I mentioned Mr Smith may require further surgical treatment… but at this stage Mr Smith is suffering from significant back and leg pain and I do not think he will be able to perform his daily activities easily. I recommend approving the surgical intervention sooner than later so Mr smith can resume his duties slowly.”
Dr Al-khwaja’s opinion as to the need for surgery is supported by the opinion of Dr Assem, rehabilitation specialist. Dr Assem saw Mr Smith on 29 June 2022 at the request of Mr Smith’s lawyers and Dr Assam provided a report of the same date. Dr Assem took a history broadly consistent with the other evidence before me, conducted a physical examination of Mr Smith, reviewed the radiological investigations and provided the following summary of injury and diagnosis:
“Mr Smith is a 37 year old man who has a long history of chronic low back pain , following a work related injury in 2008 and aggravation in 2009. He was diagnosed with left posterolateral L5/S1 disc protrusion irritating the left S1 nerve root causing sciatica. He underwent an L5/S1 microdiscectomy and decompression that was partly successful. Progress imaging on 13 January 2011 showed recurrent or residual disc protrusion that has gradually progressed over time. He persevered at work until February of 2022 when he was having difficulty coping. He attempted to continue working as an unqualified barista without success. He is currently certified as totally unfit to work.
Mr Smith continues to have chronic mechanical low back pain with left L5/S1 radiculopathy. He has difficulty lifting heavy items.”
Dr Assem went onto opine:
‘His condition is consistent with the injury he sustained during the course of his employment. Unfortunately the underlying disc pathology at L5/S1 level has gradually progressed over the past 12 years, causing left L5 radiculopathy manifesting with pain, weakness, numbness and muscle atrophy in the L5 nerve root distribution,
I understand the insurer has denied the surgical procedure proposed by Dr Al-Khawaja as it was not clear if it was related to the work injury in 2009. According to the information provided, Mr Smith continued to experience ongoing symptoms that he was able to manage by modifying his activities and avoiding any tasks that required heavy lifting or bending. After the microdiscectomy there was radiological evidence of a residual/recurrent disc protrusion that has gradually increased in size. In addition, there was adjacent segment disease that has become increasingly symptomatic with time. In the absence of further incident or injury, it is most likely related to the initial injury described in around 2009.”
Dr Assem supported the proposed surgery, opining as follows:
“Without surgery, Mr smith will continue to have chronic pain and disability that will gradually worsen and interfere with his activities. If he proceeds to have surgery, there will most likely be a rapid improvement in his symptoms, functional capabilities, allowing him to return to suitable employment.”
Dr Bentivoglio, neurosurgeon was an IME qualified on behalf of Mr Smith. He provided a report dated 14 July 2020. He was asked to provide an opinion on the more extensive fusion surgery proposed by Dr Pik at that time. Dr Bentivoglio did not support the fusion from L3 to S1 because he did not consider there were problems at the L3/L4 level. Counsel for North Fresh highlighted that Dr Bentivoglio considered the main pain generator was at the L5/S1 level. However a reading of his report in its entirety makes clear that Dr Bentivoglio identified the progression of the degenerative disease at the L4/5 level at that time. I note this is well before the innocuous event of simply standing up on the beach in February 2022 which counsel for North Fresh submitted has caused new pathology and is not compensable. Moreover he identifies the causation of the problems at the L4/L5 level a having their genesis in the subject injury. He opines:
“Undoubtedly, the main injury back in 2008 was the main cause of the original disc injury at the L5/S1 level, and it is the main cause of the progression of the degenerative disease at L5/S1 and also the establishment of the disease at L4/5. It is the cause of his continuing pina and need for ongoing treatment…”
I note that Dr Bentivoglio’s opinion supports that of the treating surgeon Dr Al Khawaja as to the subject injury having caused the problems at L4/L5 for which surgery is now proposed.
North Fresh relies on the opinion of the independent medical expert (IME)qualified on its behalf, Dr Cassiker. There are a series of reports from Dr Cassiker in evidence being reports dated 28 October 2019, 30 June 2002 and 28 October 2022.
Dr Casikar first saw Mr Smith on 17 October 2019 and reported to the insurer on 28 October 2019. This report was commissioned to consider the more extensive spinal fusion surgery (from L3 to S1) being proposed at that time by Dr Pik.
Dr Casikar took a history consistent with the other evidence before me that:
“he had low back pian and in 2009 he had a decompression. The pre-operative symptoms were back pain and leg pain. Mr Smith indicated that the surgery did not make any difference. His problems did not get better.”
Dr Casikar undertook a physical examination which had positive findings and indeed positive findings consistent with problems at the L4/L5 distribution as follows:
“on examination he stood ta the height of 174 cm and weighed 74kg. He was unable to walk on heels and toes, He had an antalgic gait. He could flex the back up o 5*, the lateral flexion was very limited. The neurological examination suggested hypoesthesia over the left L4 and L5 dermatomal”.
Dr Casikar reviewed the radiological investigations for the purpose of this report. I note that he makes no reference to the radiological investigations in his subsequent reports.
Dr Casikar considered that Mr Smith was suffering from depression and that pain and depression are closely related and spinal surgery should not be undertaken until the depression is controlled.
Dr Casikar expressed his diagnosis as:
“ failed back syndrome
Constitution of degenerative disease of the lumbar spine”
He failed to make any attribution to the subject injury despite having clearly noted that Mr Smith had back and leg pain after the work injury for which he came to spinal surgery and that his back and was not relieved by the surgery and that it continued. I also note that by that stage Mr Smith had been certified as having permanent impairment of 12% WPI by an Approved Medical Specialist Dr English.
Dr Casikar was asked: “based upon your clinical assessment of Mr Smith and review of the attached correspondence ,what is the diagnosis of his ongoing symptoms? And he answered:
“It is very difficult to indicate if his ongoing symptoms are work related, I believe that in his present condition of depression, I am not sure if a multisegmented extensive spinal fusion would make any significant improvement, degenerative disease is a constitutionally determined problem. I have not noted any structural abnormality to implicate the work place injury.”
He was asked “Do you consider the effects of the injury sustained in 2008 continue to contribute to Mr Smith current clinical presentation? Please outline your reasons”.
He answered:
“the injury he had, from your documents, indicate that in 2008 when he was lifting an irrigation pipe, that he developed low back pain . Two years later , he had a decompression and unfortunately this did not give him any benefit”.
I note that Dr Casikar seemingly accepts that the surgery did not provide Mr smith with relief from his back pain and leg pain and despite the back and left leg pain having only come on as a result of injury and having continued despite the first surgery, Mr Casikar says it is difficult to indicate that the ongoing symptoms are work related.
Despite there being no evidence of any back and left leg complaints prior to injury and consistent and persistent complaints of back and left leg pain after injury and after the first surgery, Dr Casikar simply states that Mr Smith suffers a constitutionally determined condition of degenerative back disease.
He is asked “if you consider the ongoing symptoms to be work related, please outline the clinical indications and appropriateness of the recommended L3-S1 spinal fusion surgery. Please outline your reasons including imaging findings. He simply states his belief as follows:
“At this stage I do not believe his ongoing symptoms are related to the injury he had in 2008.”
Dr Casikar is asked “please outline the alternative treatment available for his ongoing symptoms” and he answered:
“his present description of injury symptoms are mainly related to the degenerative disease of the back and with the significant depression. The relationship between the depression and the pain is very well known. This is my clinical impression however this requires further evaluation by a psychiatrist.”
I note that North Fresh has not tendered in evidence any expert psychiatric report. I also note that Dr Casikar seeks to link pain with depression despite significant findings on his own clinical examination as follows:
“on examination he stood ta the height of 174 cm and weighed 74kg. He was unable to walk on heels and toes, He had an antalgic gait. He could flex the back up o 5*, the lateral flexion was very limited. The neurological examination suggested hypoesthesia over the left L4 and L5 dermatomal”.
Dr Casikar provided a report, at the request of the lawyers for North Fresh, dated 30 June 2022 following telehealth assessment of Mr Smith on 10 June 2022.
He noted the present complaints to be as follows:
“His left foot goes numb on and off, He gets pressure in his back and his back locks up.
On 12 February 2022, when he was siting on the beach, he stood up, his back pain suddenly increased and he had bilateral leg pain suggestive of left sciatic pain. He consulted his family physician. He was advised to have an MRI examination., He consulted Dr Al Khawaja who has suggested a decompression.”

Dr Casikar conducted a physical examination and again I note there were positive findings on examination and again I note consistent with the L4/L5 dermatomal distribution:
“on examination He had an antalgic gait. He could not walk on heels and toes because of the left leg pain. He could flex the back up o 5*. The SLR was reduced to 30* on the left side. The neurological examination suggested hypoesthesia over the left L4, L5 and S1 dermatome”.
Dr Casikar made the following diagnosis:
“The current diagnosis is pain syndrome and depression; The causation was due to the injury that occurred in 2008. It is difficult to indicate that this is still the main cause for his current symptoms. The initial incident was an aggravation of pre-existing degenerative disease. And this has now resolved. His present complaints are due to the combination of depression and degenerative disease of the lumbar spine”.
I note that there is no evidence of the aggravation having ceased. All of the evidence supports consistent reports by Mr Smith of persistent back pain and left leg symptoms since the subject injury for which he came to spinal surgery in 2010 which was unsuccessful in relieving his symptoms.
Dr Casikar stated that his clinical examination “revealed non-verifiable neurological findings” this is despite the positive radiological findings on the MRI undertaken in 2022 and in 2019. I note for the purposes of this report Dr Casikar did not review any imaging studies. His findings on examination are consistent with the examination findings of Dr Al Khawaja who I note similarly found:

“His examination showed positive Trendelenburg test on the left side. Mr Smith had decreased sensation at left L4/L5 level and he had weakness of the left foot dorsiflexion of power 4+/5.”

Dr Casikar expressed his belief as follows:
“I believe the present complaints of back pain are due to significant pain related depression. I cannot find an organic basis for the present complaints”.
This is despite his own physical examination revealing significant positive findings and the MRI in 2019 and 2022 showing positive findings. I note he did not seek to verify his neurological findings with the imaging studies because he simply did not consider them for the purposes of his report dated 30 June 2022.
Dr Casikar onto express the opinion that the subject injury was an aggravation of pre-existing degenerative disease but that employment was not the main contributing factor to the aggravation. I note that in fact there is no dispute about injury, and Mr Smith has come to surgery as a result of the injury paid for by the insurer and been certified by an Approved Medical Specialist as having 12% WPI for which he received lump sum compensation.
Dr Casikar is asked “please comment on whether you believe the proposed L4/5 microdiscectomy procedure as recommended by Dr Al-Khawaja is reasonably necessary as a result of work injury?” and he answered:
I do not believe that the surgery suggested by Dr Al Khawaja ids necessary because there is no clinical justification for this surgery, further in view of the significant degenerative disease, any surgery on his back is likely to fail and therefore the outcome of the surgery is not expected to be good.”
He was asked to make any other comments and he wrote as follows:
“Mr Smith’s main problem is depression and degenerative disease of the lumbar spine. The injuries of 2008 and 2009 are resolved. His present complaints are not due to any work related injury and therefore any treatment he is likely to require now is not a compensable condition.
The injury he had on 12 February 2022 where he was sitting on the beach and he stood up and had leg pain is not a work related injury, this is due to problem of degenerative disease. The work relate injury was in 2008 and 2009 and in my opinion, these have resolved completely.”
Dr Casikar provided a further report dated 28 October 2022 at the request of the lawyers for North Fresh based on a file review. He was asked, among other things, to review the reports of Dr Assem dated 29 June 2022 and Dr Al Khawaja dated 10 August 2022.
He was asked a series of questions and provided somewhat succinct answers as set out below.
He was sked “1. Does the further evidence including but not limited to the reports of Dr Assem dated 29 June 2002 and Dr Al Khawaja dated 10 August 20022 cause you to change any of your opinions set out in your report dated 30 June 2022?” and Dr Casikar answered “No.”
He was asked “2 Please comment in the opinions of Dr Assem and Dr Al Khawaja that the workers current symptoms at L4/5 represent an adjacent segment disease and/or a residual disc protrusion caused by an injury in 6 March 2009” and Dr Casikar conceded that it was possible but considered that Mr Smith’s problems are emotionally related. He said:
“’it is possible, however in my opinion his problems are related to his emotional problems”.
I note that Dr Casikar has no expertise to make a diagnosis that complaints of back and left leg pain are emotionally based. He is not a psychiatrist and there is no expert psychiatric evidence before me that supports Dr Casikar ‘s opinion in this regard. Moreover it ignores a history of persisting back and left leg pain after injury not relieved by the first surgery in 2010. Furthermore I note that despite finding positive neurological signs on physical examination, consistent with the L4 and L5 dermatomal, Dr Casikar regarded them as “non verifiable” without any reference to the radiological evidence which verifies such findings in the opinion of Dr Al Khawaja and Dr Assem. Dr Casikar simply failed to refer to the radiological findings for the purposes of his report dated 30 June 2022 and 28 October 2022 and despite Dr Assem and Dr Al Khawaja having squarely addressed the radiological evidence, and Dr Casikar failed to comment on it when he is asked specifically to comment of Drs Assem and Al Khawaja’s opinions.
He is asked “3. Do you agree with the views of Dr Assem who considers the proposed surgery is likely to provide a rapid benefit of the workers pain and function?” And he answered:
“no I don’t agree.”
He is asked “4. Do you agree with the view of Dr Assem that without treatment the worker will continue to suffer from chronic pain and disability?” and he answered:
“his pain is related to his emotional problems pain is symptoms and not a diagnosis”
In answering this question he ignored his own significant physical findings from his prior physical examination of Mr Smith for the purposes of the earlier two reports.
He is asked “Does the further evidence cause your opinion set out in you report dated 30 June 2022 on whether you consider the L4/5 microdiscectomy procedure recommend by Dr AL Khawaja to be reasonably necessary as a result of work injury on 6 March 2009” and he answered “no”.
He is invited to make “any other comments that the doctor wishes to make would be appreciated” and he stated “no”.
As Deputy President Roche set out in Diab, each case depends on its own facts. Each case will be decided on the balance of probabilities on the evidence in the case. As Deputy President Roche said in Diab whilst the checklist of relevant matters according to the criteria of reasonableness is helpful, it is not determinative nor exhaustive. The question for determination in this case is whether the proposed treatment in the form of a L4/L5 microdiscectomy , after weighing all of the evidence in the balance, is reasonably necessary as a result of the subject injury. As the Deputy President said:
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
a.the appropriateness of the particular treatment;
b.the availability of alternative treatment, and its potential effectiveness;
c.the cost of the treatment;
d.the actual or potential effectiveness of the treatment, and
e.the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”
When I weigh all of the evidence in the balance, I am satisfied on the balance of probabilities that Mr Smith has persistent lower back and leg pain since the subject injury. He has previously come to surgery in 2010 which, when all of the evidence is weighed in the balance, did not confer lasting benefit and he was left with residual back and left leg pain and residual findings on the radiological evidence. Mr Smith has trialled a variety of conservative measures. His persistent back and leg pain is unrelieved by conservative measures. The IME qualified on behalf of North Fresh Dr Casikar considers that surgery is not reasonably necessary as a result of the subject injury because the effects of that injury have resolved. This is despite the evidence which shows that the aggravation had not ceased and the first surgery at L5/S1 had not worked. Counsel for North Fresh submitted that the proposed surgery is at L4/5, a new pathology and is not compensable. Dr Al Khawaja provides a clear explanation of why the subject injury has lead to disc degeneration at the L4/ L5 level and the benefit expected from the proposed microdiscectomy at the L4/L5 level
When I weigh all of the evidence in the balance I prefer for the reasons expressed throughout the opinion of Dr Al Khawaja supported by the opinions of Dr Assem and Dr Bentivoglio to that of Dr Casikar.
When I weigh all of the evidence in the balance I am satisfied, on the balance of probabilities, that the surgery proposed by Dr Al Khawaja in the form of L4/5 microdiscectomy is reasonably necessary as a result of injury in December 2008 and on 6 March 2009. Accordingly, I will make an award in favour of Mr Smith as follows:
(a) Award for the applicant under s 60 of the 1987 Act in respect of the costs of and incidental to surgery in the form of L4/L5 microdiscectomy as proposed by
Dr Al Khawaja on production of accounts and/or receipts.

[2022] NSWPIC 655

28 November 2022