Stanton v F.L.T (NSW) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Stanton v F.L.T (NSW) Pty Ltd [2025] NSWPIC 487
APPLICANT:	Kim Gary Stanton
RESPONDENT:	F.L.T (NSW) Pty Ltd
MEMBER:	Kathryn Camp
DATE OF DECISION:	17 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 60; claim for further surgery for accepted lumbar spine injury; acceptance that surgery is reasonably necessary; whether proposed surgery results from accepted injury; pre-existing degenerative pathology; adequacy of evidence on causation and material contribution to need for surgery; Kooragang Cement Pty Ltd v Bates, Murphy v Allity Management Services Pty Ltd, and Nguyen v Cosmopolitan Homes considered and applied; Held – applicant failed to discharge onus of proof that there is a material contribution from the accepted injury to the applicant’s current condition and need for surgery; award for respondent.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. Award for the respondent. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

INTRODUCTION

This matter concerns a claim for future medical expenses in the nature of lumbar spine decompression and fusion surgery as a result of an accepted injury in 2013 and recurrence in 2015. In particular, it concerns whether the proposed medical treatment and expenses claimed is a result of the accepted injury under s 60 of the Workers Compensation Act 1987 (1987 Act).
For the reasons discussed below, the worker’s claim for compensation is unsuccessful.

BACKGROUND

The applicant worker, Kim Stanton, was employed as a truck driver for the respondent, F.L.T (NSW) Pty Ltd. In 2013 and 2015, the applicant was required to drive the spare truck from Leeton to Sydney and back. This spare truck had faulty suspension and caused the driver’s seat to bottom out during this journey, with higher frequency while the applicant was driving across country roads. These incidents caused an accepted injury to the applicant’s lumbar spine.
The applicant brought the present proceedings before the Personal Injury Commission (Commission) under an Application to Resolve a Dispute seeking compensation in respect of a claim for proposed surgery to the lumbar spine pursuant to s 60 of the 1987 Act, as a result of the accepted injury on 12 July 2013 (and recurrence on 31 January 2015).
The respondent accepts that the incidents in 2013 and 2015 caused an aggravation of the applicant’s underlying lumbar spine condition. However, the respondent disputes liability for the proposed surgery. This is on the basis that the accepted injury has resolved and that the proposed surgery does not result from that injury. The respondent relies on notices issued pursuant to ss 78 and 287A of the Workplace Injury Management and Workers Compensation Act 1998 on 21 May 2024 and 6 May 2025.
On 22 August 2025, the applicant lodged an amended Application in response to my Direction issued on 31 July 2025. The amended Application removes particulars of injury to the “back and legs” to plead injury to the back only. It also amends the description of the proposed surgery to record: “Redo L3/L4, L4/L5 and L5/S1 decompression + pedicle screw internal fixation, and L3/4 posterior interbody fusion procedure.”

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the accepted injury to the lumbar spine has resolved, and
(b) whether the proposed lumbar spine surgery results from the injury on
12 July 2013 (s 60 of the 1987 Act).
The parties agree that s 59A of the 1987 Act does not pose an impediment to the applicant’s claim for compensation, due to application of s 59A(6)(a) of the 1987 Act.[1]
[1] Herborn v Spotless Services Australia Limited [2020] NSWWCCPD 24.
The respondent concedes that:
(a) it paid for the applicant’s 2 August 2021 lumbar spine surgery on 12 January 2024, and also retrospectively paid a closed period of weekly benefits for on or about August 2021, and
(b) the proposed surgery the subject of the current proceedings is reasonably necessary pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

On 29 August 2025, the matter proceeded to a conciliation conference and arbitration hearing. Ms Balendra, of counsel, appeared for the applicant instructed by Star Lawyers NSW. Mr Hanrahan, of counsel, appeared for the respondent instructed by Gair Legal.
The parties were unable to reach a resolution of the dispute and counsel provided oral submissions during the recorded hearing.
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 Commission and considered in making this determination:
(a)    Application to Resolve a Dispute, dated 25 June 2025, and attached documents;
(b)    Reply to Application to Resolve a Dispute, dated 21 July 2025, and attached documents;
(c)    Direction dated 31 July 2025, and
(d)    Amended Application to Resolve a Dispute dated 22 August 2025.

Applicant’s statement evidence

The applicant prepared a statement, dated 18 June 2025. The applicant states that he first injured his lower back at work on or about 12 July 2013, when he had to drive the spare truck for an overnight run from Leeton to Sydney and back.
The applicant states that he had to drive through about three hours of rough country road and the air suspension in the driver’s seat “was faulty because each time [he] hit a bump in the road, the seat would drop straight to the floor.” He states that when it “bottomed out against the floor, [he] got a jolt through [his] lower back.” He also states that he is five ft seven inches tall and had to raise the seat about 12 inches from the floor to see comfortably, and when the suspension failed he would “drop 12 inches onto a solid surface.” He further states that in the three hours across the rough country road he had to re-inflate the seat around six or seven times each hour, and on the smoother road about once every hour.
The applicant asserts that his back was “shot” after he completed the trip back to Leeton the next day. He says he “was experiencing shooting pain radiating from [his] lower back down into both [his] legs, all the way into [his] feet.” He states that he could barely walk. He reported the mechanical issues to the owner.
The applicant states that he did not make a big deal of the pain and returned to work in his normal truck. He was also having a lot of problems with his left shoulder, which he was more concerned about than his back.
The applicant states that he began to “get shooting pain in [his] legs and feet again” so he attended on his treating general practitioner who recommended physiotherapy. He states that his back improved as a result of the physiotherapy. He does not provide any specific dates.
The applicant recalls that on or about 31 January 2015, he had to use the same spare truck. The suspension had not been fixed, and his trip from Leeton to Sydney and back was “pretty much a carbon copy of the trip [he] did in 2013.” He reported the problems with the seat suspension again and that it caused pain in his back.
The applicant states that he took Endone for his left shoulder injury and that this “would ease the pain” in his back. He was able to continue to work but “always had pain in [his] lower back and hips” which was manageable. However, by 2018 the pain “started getting increasingly” worse and he underwent further physiotherapy.
The applicant sought some treatment and by January 2020 his “back pain was severe with radiating pain into both legs.” He states he continued to “put up with the pain” working until February 2020 when he “went off work with [his] shoulder and neck injury.”
The applicant states that he underwent spinal surgery in August 2021, and had a “good outcome” with a “reduction of pain in [his] back and legs.” However, he states that the pain “did not completely go away and has always been located in the same areas.”
The applicant states that in 2022 the “pain in his back and legs came back”, with “no specific incident that caused the aggravation.” He states the symptoms have “gradually returned since 2002 [sic, 2022].” He states that the pain in his back and legs is “worse now than compared to before the surgery.”
The applicant adds that he had a cortisone injection in his lower back on 4 March 2024, which only gave one day of relief. He states that he has exhausted all conservative treatment and seeks to undergo the recommended back fusion surgery.

Medical evidence

Clinical notes

In evidence are a series of clinical notes from the applicant’s treating general practitioners at Leeton Family Clinic and Leeton Medical Centre. The clinical notes date from 2004 and cease in August 2023.
On 8 February 2008, the applicant attends on his general practitioner who records complaint of back pain. The records note pain arising from the L2 and L3 region. The applicant is referred to Dr Howard and given a prescription of Temaze.
On 19 June 2014, the general practitioner records that the applicant had a fall the day prior landing on his bottom and had pain in that region. No abnormality was detected in the lumbar spine.
There are various clinical entries relating to symptoms of the shoulder/s and neck and related investigations, particularly between 2015 and 2018. The clinical entries relating to the back appear less frequently, and the parties did not specifically refer to many of those entries.
The clinical records indicate that the applicant was prescribed Endone from 2015 for complaint of symptoms in his neck and shoulder pain. The records also indicate that he was prescribed Endone with instruction to take two tablets in the evening. (On 24 September 2015, a dietitian Leanne Baulch, records that the applicant takes two Endone at night to sleep with neck and shoulder pain.)
On 29 August 2017, the general practitioner requests a CT scan of the lumbar spine for “chronic sciatic.” It also notes that in “2008 CT showed L5/S1 level disc bulget [sic] extending to the right lateral recess.”
On 19 September 2017, the general practitioner refers to a recent CT scan (requested on 29 August 2017) showing disc abnormalities at L5/S1 and records “no other significant findings of note.”
On 14 November 2017, the general practitioner records diagnostic imagining request of right S1 nerve root peri-radicular injection with cortisone for chronic sciatica in the right buttock.
On 3 February 2018, the general practitioner records injection into back helped for a while but that the sciatica was getting worse again.
On 27 March 2018, the general practitioner records chronic low back pain with radicular symptoms. It notes the applicant is using Endone at night, and had previously tried Lyrica without effect.
On 23 May 2019, the general practitioner records that the applicant has chronic lumbar backache with pain radiating into both legs. There are no further specific clinical entries relating to symptoms in the lumbar spine and the records cease on about August 2023.

Dr Ow-Yang

In evidence are a series of reports from Dr Ow-Yang, the applicant’s treating orthopaedic surgeon. Dr Ow-Yang treated the applicant from as early as 2016, and operated on the applicant performing an anterior cervical discectomy and fusion on or about late 2016.
Of relevance, in his report of 14 June 2018, Dr Ow-Yang records a history of chronic low back pain and right lower limb radicular pain which has been symptomatic for around 12 months. He also records that the applicant occasionally takes Endone at night. He further refers to a recent CT scan of the lumbar spine which shows a right L5/S1 disc bulge causing lateral recess stenosis and compression of the right S1 nerve. He further notes that at the L4/5 level there is a broad-based disc bulge and bilateral L4/5 facet arthropathy resulting in mild bilateral lateral recess stenosis and possible bilateral L5 nerve compression.
Dr Ow-Yang adds that the “working diagnosis is one of a right S1 radicular pain on a background of chronic low back pain most likely arising from lumbar facet arthropathy.” He notes that the applicant feels that he can manage with conservative treatment. He also explained further treatment options including surgery in the nature of lumbar microdiscectomy to decompress the nerve but did not consider the applicant’s symptoms severe enough to warrant fusion surgery.
In his report dated 30 January 2020, Dr Ow-Yang provides a history of the applicant reporting intermittent low back pain symptoms in the course of his work activity particularly because he is “thrown around in the truck.” He also records that the applicant described progressively worsening mechanical low back pain and lower limb radicular pain. He records:
“An MRI of the lumbar spine shows advanced L5/S1 disc degeneration with loss of disc height and a central posterior disc bulge causing mild lateral recess stenosis and minimal S1 nerve compression. At L4/5 there is a severe facet joint hypertrophy and a central broad based posterior disc bulge causing moderate stenosis and severe bilateral lateral recess stenosis with bilateral L5 nerve compression. At L3/4 there is moderate facet joint arthropathy.”
Dr Ow-Yang records that the working diagnosis is:
“one of bilateral lower limb radicular pain most likely arising from L5 radicular pain associated with severe bilateral L4/5 lateral recess stenosis arising from facet joint hypertrophy and a broad based disc bulge. There may be some S1 radicular component that correlates with the described distribution of pain.”
He adds that the applicant’s work “is likely to be the main contributing cause of pain as he has complained of low back symptoms in the course of his work activity and the repetitive bouncing in the seat is likely to have caused the lumbar facet arthropathy and broad-based L4/5 disc bulge.”
Dr Ow-Yang states that the applicant is keen to escalate treatment and wants to “get off the Endone.” He then recommends L4/5 and L5/S1 laminectomy plus rhizolysis to decompress the lumbar nerve roots.
In a report dated 11 March 2021, Dr Ow-Yang records that the applicant is becoming progressively disabled by lower limb radicular symptoms associated with severe L4/5 and L5/S1 lateral stenosis from facet joint hypertrophy and posterior disc bulging. He states that there is a “component of mechanical low back pain from bilateral L3/4, L4/5 and L5/S1 facet arthropathy but the low back pain is not the most severe problem.” He notes that the applicant would like to proceed with the L4/5 and L5/S1 laminectomy.
On 2 August 2021, Dr Ow-Yang performs surgery on the applicant in the nature of “L4/5 + L5/S1 canal/lateral recess and foraminal stenosis with symptomatic nerve compression.” He provides an operation report that same day.
On 23 September 2021, Dr Ow-Yang records that the applicant reports “a satisfactory outcome” from the lumbar spine surgery and that the lower limb radicular symptoms had “resolved.”
The applicant then attends on Dr Ow-Yang for treatment of his cervical spine, for which he underwent further surgery in October 2022.
On 22 March 2024, Dr Ow-Yang provides a further report. He records a history that the applicant reports severe and disabling recurrent low back pain and lower limb radicular pain. He notes that the applicant has had an excellent outcome from the previous lumbar spine surgery and that a recent steroid injection did not provide any benefit.
Dr Ow-Yang refers to a recent MRI of the lumbar spine and reproduces images of that scan but does not identify the date of the scan. He records that:
“A recent MRI lumbar spine shows correlating structural pathology involving recurrent L4/5 central canal and lateral recess stenosis due to prominent bilateral facet synovial cyst formation and broad based posterior disc bulging. This is causing severe cauda equina and bilateral L5 nerve compression. There is L3/4 disc and facet disease with posterior disc bulging but no nerve compression at L3/4. At L5/S1, there is advanced disc disease and facet arthropathy with significant loss of disc height and endplate sclerotic changes but no recurrent nerve compression at L5/S1.”
Dr Ow-Yang provides a working diagnosis of:
“recurrent bilateral L5 radiculopathy with pain, weakness, and sensory disturbance due to recurrent L4/5 central canal and lateral recess stenosis due to prominent bilateral facet synovial cyst formation and broad based posterior disc bulging causing severe cauda equina and bilateral L5 nerve compression. A component of back pain may also arise from L3/4 and L5/S1 disc and facet disease.”
Dr Ow-Yang explains the pathology of the synovial cyst structurally. He explains that the structural pathology and symptoms have progressed despite attempts at less invasive treatment, including “analgesia, physical therapies, withdrawal from work, activity modification, steroid injections and a minor laminectomy surgery.” He states that the applicant has elected to undergo a “definitive and maximal endpoint treatment for the structural pathology in the lumbar spine involving a redo L3/4, L4/5 and L5/S1 decompression plus pedicle screw internal fixation, plus L3/4 and L4/5 posterior interbody fusion, plus posterolateral fusion.”
On 25 March 2024, Dr Ow-Yang requests approval for the applicant to undergo “[r]edo L3/4, L4/5 & L5/S1 decompression + pedicle screw internal fixation + L3/4 & L4/5 posterior interbody fusion and posterolateral fusion procedure”. He indicates that the total fee would be $15,365.

Dr Miller

In evidence is a report from Dr Russell Miller, orthopaedic surgeon, dated 3 November 2023, qualified by the applicant in respect of a separate claim for compensation. Under diagnosis and prognosis, Dr Miller records:
“[The applicant] has developed problems with the lumbar spine for which he has undergone decompressive surgery. He has significant ongoing symptoms in the lumbar spine. There is however no evidence of radiculopathy or neurological deficit. It is likely that the lumbar spine problem has been associated with the development of chronic pain syndrome. Prognosis is poor.”
Dr Miller states that there is a possibility that the applicant may require further investigation and surgical intervention for his lumbar spine, which would be regarded as substantially work related.

Dr Howard

In evidence is a report from Dr Matthew Howard, treating orthopaedic surgeon, dated 12 February 2024. He notes that he referred the applicant to a neurosurgeon, for alternative treatment, as he does not perform back surgery. He also notes that injections have the capacity to relieve the effects of the applicant’s current injury.

Dr Nair

In evidence is a report from Dr Anil Nair, Consultant orthopaedic surgeon qualified by the applicant, dated 14 March 2025. Doctor Nair records a history of the mechanism of the injury, referring to the incidences in 2013 and 2015. He also records a summary of the treatment that the applicant has undertaken in respect of his lumbar spine.
In response to a specific question as to whether the proposed surgery recommended by Dr Ow-Yang is reasonably necessary and causally related to the injury sustained in 2013 and 2015, Dr Nair responds as follows:
“From the radiology reports there is certainly evidence of disc collapse and neurocompressive lesions at L4/5 and L5/S1. I do endorse surgical treatment in the form of posterior lumbar inter body fusion, however I am unable to comment on the exact permutation of surgery that I would recommend as I was not provided with the medical imaging that I would normally perform prior to performing a surgical reconstruction. Broadly speaking however the radiologist’s reports are aligned with the description of symptoms by [the applicant] and surgical treatment would be reasonable for refractory symptoms.”

In response to a specific question regarding Dr Machart’s opinion in his reports dated 22 April 2024 and 9 May 2024, that the applicant’s work-related lumbar spine injury has resolved and the need for back surgery is due to a different pathology, Dr Nair response as follows:
“It is with deference that I disagree. The fact that there was degenerative pathoanatomy evident on medical imaging after the work related injuries in 2013 and 2015 reveals a permanent and anatomical work related aggravation resulting in the degenerative pathoanatomy. Thus it is with deference that I disagree with Dr Machart’s opinion.”
Doctor Nair states that it is “clear and incontrovertible that conservative treatment has been exhausted. [The applicant] has pathoanatomy which can only be rectified with surgical treatment.”

Dr Machart

In evidence are two reports from Dr Frank Machart, orthopaedic surgeon qualified by the respondent, dated 22 April 2024 and 9 May 2025.
In his first report, Dr Machart provides a history of the applicant’s work, that the applicant was asymptomatic until he started work, and that he returned to work six weeks after the lumbar decompression laminectomy in 2021. He notes that the applicant stopped work in 2022 and has not worked since. He refers to the faulty driver’s seat and suspension and that the applicant’s back pain gradually increased over the years. He records that there was no specific single incident. He adds that the applicant reported that the severity of the lumbar symptoms gradually increased despite not working.
Under a heading “Relevant Medicals Attached to Your Letter of Instructions”, Dr Machart records that symptoms date back to 2008 when the applicant saw his general practitioner. He also records that a CT scan was undertaken in 2008 with problems at L4/5 and L5/S1. He further notes a further consultation on 10 January 2011, but no further details are recorded.
Dr Machart diagnoses the applicant with multilevel lumbar spine disease and degenerative spinal canal stenosis. He notes that there is a case to be made for chronic irritation from driving, seat bottoming out taking the applicant’s word “for it” but that corroboration may be necessary.
Dr Machart notes the decompressive laminectomy procedure of the lumbar spine in 2021. He then notes that the applicant stopped working because the company closed, not due to physical reasons. He notes again that the severity of the lumbar symptoms deteriorated despite not working, which he considered to be “consistent with progressive degeneration” which he suspected “is subject of the 3 level spinal fusion proposed by Dr Ow-Yang.”
In response to a specific question as to whether the applicant suffered a work injury, Dr Machart responds:
“If the narrative of injury is correct, seat bottoming out, and inadequate suspension, then yes, aggravation and not causation, accelerated the existing degenerative changes. The degenerative changes continue to increase in severity despite not working. The aggravation is a limited contribution compared to the degenerative spinal disease, which would have been evident irrespective of employment, and would have gradually increased in severity with advancing age, as it does at the present time.”
Dr Machart finds that the applicant’s employment with the respondent was the main contributing factor to the “[a]ggravation of pre-existing disease.” In response to a further question as to whether the workplace injury has resolved, Dr Machart states that the injury has “[n]ot resolved, and cannot resolve, because there are now anatomical changes following lumbar decompression.”
Dr Machart considers that it is reasonable to offer the applicant surgical management proposed by Dr Ow-Yang.
In his supplementary report, Dr Machart confirms the history in the previous report. He notes that the applicant’s lumbar symptoms dated back to 2008 when he saw his general practitioner and had a CT scan which showed disc pathology at L4/L5 and L5/S1. He notes that there was a further consultation in 2011.
Dr Machart notes that he provides this further report in response to additional information provided, presumably the investigation report and video footage of a man shovelling soil from a trailer on 2 May 2024. Dr Machart states that this information did not change his findings on pathology, injury and consistency.
Dr Machart confirms that the pathology is “multilevel degenerative condition caused by age and not caused by a specific injury.” He also confirms the diagnosis of “multilevel degenerative changes and spinal canal stenosis which continue to deteriorate despite the surgical intervention.”

Dr Machart states:
“There were episodes of aggravation, documentation in 2011, 2013 and 2015. It is not clear how long or how often the truck seat had bottomed out. I suspect not sufficiently to alter the natural history of the degenerative lumbar disease. This view is supported by the fact that the symptoms had settled after 2015 and then there was gradual onset of pain without additional injury. The diagnosis is spinal canal stenosis which is a degenerative condition. There is not a history of ongoing aggravation after the work aggravation had settled in 2015. On the balance of probabilities, the pathology is degenerative rather than injury related. Temporary non-structural exacerbations that may have occurred at work had settled before the more recent deterioration and need for an operation, the latter needs due to constitutional spinal degenerative disease.”
Dr Machart states that the applicant has “[m]ore likely than not” suffered an injury to his lumbar spine arising out of or in the course of his employment. However, states that the workplace injury to the lumbar spine has “[r]esolved.”
Dr Machart considers that the proposed surgery recommended by Dr Ow-Yang is reasonably necessary but not as a result of the work injury.

Radiological evidence

In evidence is an MRI report of the lumbar spine, dated 23 January 2020. The report concludes that there is lumbar degenerative changes, relevantly:
“Disc bulge also more foraminal at L3/4. Mild canal stenosis. Bilateral mild foraminal narrowing.
Disc bulge with mild to moderate canal stenosis at L4/5. Mild foraminal narrowing with slight exiting L4 nerve root impingement.
Broad based disc bulge with also a small central disc protrusion at L5/S1 with mild canal stenosis. Bilateral mild to moderate foraminal narrowing.”
In an X-ray report of the lumbar spine, dated 2 May 2022, it is recorded that there is “reduction of L5/S1 disc space with marginal osteophytes related to degenerative changes. There is mild narrowing of L4/L5 intervertebral disc space. Rest of the lumbar intervertebral disc space appears maintained.”

Investigation Reports

In evidence are two investigation reports arranged by the respondent, namely from Quantumcorp dated 15 December 2022 and Insight Intelligence Group dated 5 December 2023.
In Quantumcorp’s report it records that the respondent employer received photographs on or about 31 July 2022 from a former employee which showed the applicant performing physical tasks at a property in Yanco. These images allegedly showed the applicant holding large sheets of corrugated iron on his own, climbing a ladder and using a hand tool.
It notes that a video was provided of the applicant digging a trench on the same property, with no apparent restriction in movement. However, that video is not in evidence.
In Insight Intelligence Group’s factual investigation report it refers to four photographs taken by the respondent on 31 July 2022 and a video recording made on 15 September 2022. The photographs are reproduced in the report. Two images show a man climbing a ladder on a building construction site. Another image shows a man standing on a roof holding what appears to be a sheet of corrugated metal.
There is also a statement prepared by Insight Intelligence Group of the employer Frank Lucchese dated 18 January 2024. Mr Lucchese states that on 12 January 2024 he received a phone call from a former employee who advised him that they had seen the applicant shovelling sand out the front of his house and suggested he go and have a look for himself. Mr Lucchese states that he drove to the relevant address and observed the applicant “without him noticing me.” He states that he was able to see the applicant “shovelling what appears to be soil from a box trailer and wheelbarrow.” He states that he used his mobile phone to record a number of videos and also photographs of the applicant’s activity.

SUBMISSIONS

Applicant’s submissions

The applicant confirmed the claim before the Commission was for the payment of planned lumbar spine surgery “being a redo of an L3/4, L4/5 and L5/S1 decompression and a pedicle screw internal fixation and L3/4 posterior interbody fusion procedure.”
The applicant refers to his statement evidence where he describes the injury in July 2013 and the subsequent symptoms. The applicant notes a further incident that occurred on 31 January 2015, involving similar circumstances. The applicant notes that he had to take Endone for an unrelated injury to his left shoulder which was subject to a separate claim for compensation. However, submits that the Endone would ease his back pain but that the pain started to get increasingly bad in 2018 and he sought treatment.
The applicant notes that he underwent back surgery in August 2021, with a good outcome but the pain did not completely go away and has always been located in the same area. The applicant states that the symptoms gradually returned in 2022.
The applicant relies on the evidence of Dr Miller but does not refer to any specific aspect of that evidence. The applicant also relies on the evidence of Dr Nair and, in particular refers to Dr Nair’s criticism of Dr Machart’s opinion.
The applicant refers in general to Dr Ow-Yang’s evidence. The applicant then specifically refers to Dr Ow-Yang’s evidence recommending surgery to L4/5 and L5/S1 in 2020, and references to the MRI report showing advanced L5/S1 disc degeneration and L4/5 severe facet joint hypertrophy and moderate facet joint arthropathy at L3/4.
The applicant submits that following surgery in 2021 his lumbar spine deteriorates, referring to Dr Ow-Yang’s evidence generally. The applicant then submits that the working diagnosis is the same as in 2020 and the issues relate to the “same particular lumbar spinous processes” which the applicant submits are L3/L4, L4/L5 and L5/S1. The applicant submits that Dr Ow-Yang recommends and notes that the applicant elects to undergo a definitive and maximal endpoint treatment for the structural pathology in the lumbar spine involving a “redo of L3/L4, L4/L5 and L5/S1 decompression plus pedicle screw internal fixation plus L3/L4 and L4/L5 posterior interbody fusion plus posterolateral fusion.”
On direct questioning, the applicant concedes that the previous surgery undertaken was an L4/L5, L5/S1 laminectomy and rhizolysis. The applicant submits that Dr Ow-Yang is anticipating redoing those particular levels, as well as L3/L4 lumbar spine which had previously been noted since 2020 as being a problem.
On further direct questioning, as to whether Dr Ow-Yang provides an opinion as the cause of symptoms in each of the levels of the lumbar spine the subject of the proposed surgery, the applicant refers to his report of 30 January 2020. The applicant submits that Dr Ow-Yang says “that the symptoms that he suffers from arises as a result of his work as a truck driver.” The applicant submits:
“What he has done, which is perfectly appropriate, is note that the symptoms are associated with the applicant driving the truck. The medico-legal experts are the ones who have provided the explanation for or [sic] the causation aspect that may satisfy medical or the requirements of a medico-legal report, which is also perfectly appropriate. But there is no suggestion from Dr Ow-Yang at any point that there is anything aside from the driving of a truck that has given rise to the applicant’s symptoms.”
In respect of causation, the applicant submits this is satisfied by the reports it has included and also the report of Dr Machart. The applicant then refers to Dr Machart’s report that there was an aggravation and/or causation that accelerated the existing degenerative changes. The applicant states that Dr Machart says the aggravation is not sufficient to alter the natural history of the degenerative lumbar disease and suggests that this view is supported by the fact that the symptoms had settled after 2015 and there was a gradual onset of pain without additional injury. However, the applicant submits that this is not in accordance with the applicant’s evidence that provides he was “taking Endone for his neck and that was the reason why the pain in his back was alleviated.” On direct questioning, the applicant submits that he was prescribed Endone for his neck in about March 2015. The applicant submits he commenced using Endone in 2015 and took two at night to sleep with neck and shoulder pain, and is still receiving Endone.
The applicant submits that he provides an explanation as to what is going on with his lumbar spine over a period of time and this accords with the medico-legal evidence, the evidence of his treating doctor and Dr Machart who says there was an acceleration of the applicant’s degenerative disease. Dr Machart’s opinion that the pathology is degenerative does not accord with his previous position.
The applicant submits that there is no suggestion anywhere that there is any other reason for the applicant’s need for surgery now other than a degeneration of his earlier condition. The applicant further submits that the proposed surgery is both reasonably necessary and as a result of the accepted injury to the lumbar spine.

Respondent’s submissions

The respondent submits that the starting point is the pleadings which refers to an injury in 2013, and gives a description of a similar incident in 2015. The respondent concedes an aggravation injury occurring as a result of those two incidents.
The respondent submits that it is significant what the applicant does not say. He does not reveal he had attended on his local doctor on 8 February 2008 concerning back pain arising from L2 and L3 traveling downwards or the incident in March 2011 he refers to in the history reported to Dr Machart (but the respondent latter concedes there is no other clinical reference to the 2011 incident). This demonstrates the applicant had a significant degenerative condition before the events in 2013 and 2015. It is in this context, the respondent submits, that the applicant is now seeking surgery.
The respondent refers to the 2008 and 2011 complaints and submits that there is a failure to provide relevant histories to the independent medico-legal experts.
The respondent also refers to the surveillance undertaken by the respondent on
12 January 2024. In particular, the respondent refers to the evidence that allegedly shows the applicant shovelling what appears to be soil from a box trailer and wheelbarrow. This the respondent submits is consistent with the clinical records that the applicant is very active at home. The respondent further refers to some photographs where the applicant is allegedly climbing a ladder to a roof of a building putting on corrugated iron, showing significant labouring activity in 2022. The respondent submits that this history was not given to the medico-legal experts.
The respondent refers to the applicant’s submission that the reason for the pain being recurrent in the lumbar spine is because of the incidents in 2013 and 2015. There is evidence of a recurrence in 2015 but no reference to any further recurrences or what the reason for those recurrences might be, whether they be work in the truck due to the nature and conditions of that work or as a result of his work elsewhere or work at home. This raises the question as to the real need for the surgery at this stage and whether the 2013 event continues to have any material contribution to the current need for surgery. It is more than 10 years after the event that is relied upon and a lot has happened in between. The events of 2013 and 2015 were self-limiting and that is the view taken by Dr Machart.
The respondent notes the surgery performed by Dr Ow-Yang involved only two levels of the lumbar spine, at L4/L5 and L5/S1. Dr Ow-Yang provides a report on 22 March 2024, after the applicant had been doing the work in January 2024, where he records the applicant reports disabling recurrent low back pain and the respondent submits that the most recent recurrence may have been as a result of that work being done.
The respondent refers to Dr Ow-Yang’s commentary on the pathology, noting that he records L3/L4 disc and facet disease with posterior disc bulging but no nerve compression. The respondent submits that this is the reason why the L3/L4 level was not decompressed and to describe the current procedure as a redo of an L4/L3 procedure is not in keeping with the objective facts. He later says that it’s a “plus the L3/4” but the respondent submits that “the need arises because of the applicant’s pre-existing degenerative condition.”
The respondent refers to clinical entries in late 2023. The respondent submits that there is no evidence of the reason for the most recent recurrence and what gives rise to the need for surgery at this stage. The respondent submits that the absence of evidence from the general practitioner in these circumstances allows a Jones v Dunkle inference to be drawn that whatever the general practitioner might say would not necessarily help the applicant today.
The respondent refers to Dr Nair’s evidence and submits he does not really know what kind of procedure is to be undertaken. The respondent notes that Dr Nair refers to a triple fusion but confirms radiological evidence of disc collapse and neuro compressive lesions at L4/L5 and L5/S1 and those are the levels which were decompressed. The respondent submits that Dr Nair’s opinion is undermined by the fact that he said he was unable to comment on the exact permutation of the surgery that he would recommend because he was not provided with the medical imaging. It is the exact permutation of the surgery pleaded in the Application that Dr Nair says he is unable to comment about.
The respondent refers to Dr Nair’s comment that the applicant is unlikely to go back to work because he is totally and permanently disabled. The respondent submits that this is because of the nature of his work overall, which seemed to occur since June 2001, rather than a specific aggravation which the respondent accepted in 2013.
The respondent then refers to the evidence of Dr Machart. He notes the 2021 lumbar spine surgery and that the applicant returned to work six weeks after that surgery and continued to work until the end of June 2022. However, since June 2022 the symptoms have gradually increased despite not working. The respondent submits that this is because of a degenerative condition as a result of ordinary activities of daily life rather than anything related to work. He acknowledges some chronic irritation from driving and that corroboration may be necessary. He then states that the need for surgery is consistent with progressive degeneration. While he concedes that the truck seat bottoming out or inadequate suspension may have caused an aggravation, the respondent submits that this would be the result of the nature and conditions of his work generally rather than the particular instance the applicant relies on. As far as that contribution is concerned, Dr Machart points out that it is limited. He expressly refers to the nature and conditions and concedes an aggravation in that event, but that is not what is pleaded.
The respondent refers to Dr Machart’s subsequent report, where he finds the aggravation was not sufficient to alter the natural history of the degenerative lumbar disease. He finds on the balance of probabilities that the specific pathology is degenerative rather than injury related, and that is consistent with foraminal changes as distinct from neurocompression which was relieved by Dr Ow-Yang in 2021. His opinion is comparing the 2013 incident with the overall fairly strenuous work undertaken by the applicant as a truck driver and the degenerative condition which has been progressing since 2008.

The respondent concedes that the proposed procedure is appropriate to deal with a degenerative condition. However, the events in 2013 and 2015 are “mere blips in the map, tips of the iceberg that are now submerged, that they no longer form part of the clinical picture that gives rise to the need for surgery at this time.”
The respondent refers to the applicant’s submission that there is no other medical evidence to say otherwise, but the respondent submits the main reason for this is because there is no history given of other activities either in the nature of work generally or work outside truck driving. The respondent submits that the Commission could not be persuaded that the applicant’s need for surgery at this time results from the incidents in 2013 and 2015, and there should be an award for the respondent.
On direct questioning as to the period in which the aggravation resolved, the respondent submitted that it is “difficult to prove that something does not exist any longer.” The respondent adds that the applicant’s “complaints are now submerged in the overall picture” but the evidence demonstrates that he was able to return back to work and there were no complaints from the period after the decompression surgery in 2021. He was able to return to his pre-injury duties without an impediment from his back. The respondent adds that if there were recurrences as described by Dr Ow-Yang on a more regular basis than 2013 and 2015 that is not part of the case that is pleaded. The condition from 2013 and 2015 has subsided so much that it is no longer of clinical significance, and it would be difficult to determine with any degree of satisfaction what material contribution has been made from those events when the applicant sees Dr Ow-Yang in 2024.
The respondent submits that Dr Machart finds that the injuries were of a limited effect on the degenerative process, not an acceleration.

Applicant’s submissions in reply

The applicant refers to the investigation reports and submits that they are tainted by the fact that the employer has taken an interest in the claim. The employer has suggested that the applicant has contributed to the fact that he is no longer in business and therefore this evidence should be given no weight. The applicant contends that the employer has provided “evidence of nothing.” The photographs cannot identify the applicant with any specificity. There is no proof that the employer followed the applicant to his home and saw him doing something and no weight should be attached to it.
The applicant submits that he pleads in this present Application an injury which is an aggravation, acceleration or exacerbation or deterioration of the disease. Despite what the respondent submits, Dr Machart has said that there was an acceleration of the applicant’s disease as a result of the accepted injury that the respondent has not put in dispute.
The applicant asserts that the reasonable necessity of the surgery is not in issue. Therefore, whether or not Dr Nair knew what the particular surgery is not an issue.
The respondent refers to the applicant’s capacity and ability to return to work, but the applicant submits this is not a claim for weeklies or an incapacity issue.
The applicant submits that Dr Machart says there is a deterioration of the applicant’s condition. The expected result of a disease injury is that it is worsening over a period of time and Dr Machart accepts that, but also says there was an acceleration of the deterioration of the applicant’s disease. This is sufficient to support the need for surgery as a result of the accepted injury.

FINDINGS AND REASONS

Relevant law

Section 60 of the 1987 Act requires two questions to be answered in the affirmative. Firstly, whether the proposed surgery “results from” the accepted injury, and, secondly, whether the proposed surgery is “reasonably necessary.” These are questions which involve matters of impression and degree, having regard to the available evidence.[2] As the respondent concedes the second question, it is only necessary to determine whether the proposed surgery results from the accepted injury. This requires a consideration of the causal relationship to the injury and need for the proposed surgery.
[2] Kooragang Cement Pty Ltd v Bates (1994) 10 NSWCCR 796 (Kooragang); Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab).
The legal test of causation was considered by the Court of Appeal in Kooragang Cement Pty Ltd v Bates,[3] where Kirby P said:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”[4]
[3] (1994) 10 NSWCCR 796.
[4] Kooragang, [463]-[464] (Sheller and Powell JJA agreeing).
A condition can have multiple causes and the accepted injury need not be the only cause for the reasonably necessary treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.[5] However, the applicant is required to establish, applying the commonsense test of causation, that the treatment is reasonably necessary as a result of the accepted injury. This requires consideration of whether the injury materially contributes to the need for surgery.[6]
[5] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49, [57]-[58] (per Roche DP).
[6] Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716.
It is well accepted that the applicant bears the onus of proof, to establish his case on the balance of probabilities.[7] The relevant principles of onus of proof were discussed by Justice McDougall in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd.[8] Justice McDougall said:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen (1940) 63 CLR 691 at 712.”[9]
[7] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [44] (per McDougall J (McColl and Bell JJA agreeing)) (Nguyen); Department of Education and Training v Ireland [2008] NSWWCCPD 134 (Ireland).
[8] [2008] NSWCA 246.
[9] Nguyen, [44] (per McDougall J (McColl and Bell JJA agreeing)).

Discussion

The dispute between the parties proceeded in submissions on a basis of whether the proposed lumbar spine surgery was as a result of the accepted injury in 2013 (and recurrence in 2015).
It is relevant to note that the description of the proposed lumbar spine surgery in the pleadings was amended on 22 August 2025 to record surgery claimed in the nature of a “Redo L3/L4, L4/L5 and L5/S1 decompression + pedicle screw internal fixation, and L3/4 posterior interbody fusion procedure”, rather than a “[l]umbar nerve decompression surgery involving L4/5 and L5/S1 decompression laminectomy” pleaded in the original Application (which was the surgery the applicant underwent in 2021).
It is also relevant to note that the proposed surgery claimed is different from that recommended by Dr Ow-Yang. Dr Ow-Yang has only recommended a “[r]edo L3/4, L4/5 & L5/S1 decompression + pedicle screw internal fixation + L3/4 & L4/5 posterior interbody fusion and posterolateral fusion procedure”. However, the applicant confirmed the form of surgery claimed in submissions to reflect the amended pleadings dated 22 August 2025 (see applicant’s submissions [79] above) and this is not the complete procedure recommended by Dr Ow-Yang.
The applicant’s submissions were largely made on the following bases:
(a)    the applicant undertook Endone for an unrelated injury and this eased his back pain;
(b)    that the 2021 lumbar spine surgery had a good outcome but the pain did not completely go away and has always been located in the same area;
(c)    that the 2020 MRI shows lumbar spine abnormalities at L5/S1, L4/5 and L3/L4;
(d)    that the symptoms the applicant suffers arises from an aggravation and/or acceleration of degenerative changes, and
(e)    there is no suggestion anywhere that there is any other reason for the need for surgery, other than a degeneration of his earlier condition.
It was not disputed that the applicant sustained an aggravation of his pre-existing lumbar spine condition as a result of the incidents on 12 July 2013 and 31 January 2015, when the applicant was driving the spare truck with faulty suspension. It was also not disputed that the applicant underwent surgery in 2021 at L4/L5 and L5/S1 to decompress the nerve and the respondent ultimately paid for that procedure.
The respondent conceded that it was difficult to prove that the accepted injury does not exist any longer, but submitted that the applicant’s lumbar spine complaints were submerged in the overall clinical picture. For this reason, understandably, the respondent presented its case on the basis that the proposed surgery does not result from the accepted injury.
I accept that injury is not in dispute but given the nature of the dispute, and the way in which the parties presented their submissions, it is necessary to analyse the history regarding lumbar spine complaint to determine the material contribution to the need for the proposed surgery.
The evidence demonstrates that the applicant had a pre-existing condition in his lumbar spine, as early as 2008. Indeed, a clinical entry in 2017 notes the 2008 CT scan showed L5/S1 level disc bulge extending to the right lateral recess and a clinical entry in February 2008 notes back pain arising from L2 and L3 region. It is clear that the applicant had issues in his lumbar spine from 2008, including a disc bulge and it is not disputed he has degenerative changes. What is less clear is what caused the applicant’s recurrence (or deterioration) of pain and symptoms in the lumbar spine leading to the recommendation for the proposed surgery in 2024 and what contribution the accepted injury in 2013 and 2015 has (if any) to the need for that surgery.
It is true that the applicant was undergoing treatment for his cervical spine and shoulders, particularly between 2015 and 2018 according to the clinical records, and during this time there is scant if any reference to complaint of the lumbar spine. The applicant says that he did not make a big deal of his pain in his back and returned to work, presumably after the incidents in 2013 and 2015. He also states that he was focused on the problems with his left shoulder more than his back, and that Endone which he took eased his pain in his back. It is also relevant to note that the applicant ceased work in February 2020, on his own statement evidence, due to his shoulder and neck injury.
It might be possible that the applicant was focused on the recovery of these other injuries and/or that treatment such as Endone masked the pain he was experiencing in his lumbar spine, as the applicant submits. I accept that there is some support for this in the applicant’s statement evidence. I also accept that the applicant took two tablets of Endone of an evening to address his symptoms in his shoulder and neck, and this is supported by the clinical evidence (see from [29] above). However, the frequency and duration of use between 2015 and 2024 is unclear. Indeed, the applicant did not refer to any medical evidence that concludes that the use of Endone or the symptoms from those other injuries masked his symptoms in his lumbar spine. The applicant has not presented any medical evidence in this regard and the submission is no more than a bare assertion.
By late 2017/early 2018 the applicant starts reporting symptoms in his lumbar spine, and this is supported by the applicant’s statement evidence and contemporaneous records. Indeed, the applicant underwent investigations and a CT scan of his lumbar spine for what the general practitioner described as “chronic sciatica” in 2017 and an injection to his low back in early 2018. By mid-2018, Dr Ow-Yang, who had been seeing the applicant for his cervical spine injury, recorded a history of chronic low back pain without an explanation of the cause.
It is not until early 2020 that there is any reference in the medical evidence, to which I have been referred, to the applicant’s employment and its relationship with his lumbar spine symptoms. In January 2020, Dr Ow-Yang records a history that the applicant reported intermittent low back pain symptoms in the course of his work activity because of being thrown around in the truck. He refers to an MRI scan, presumably the one undertaken in January 2020, identifying severe degenerative changes at L5/S1 and L4/L5 and moderate changes at L3/L4. He attributes the applicant’s work activity and repetitive bouncing in the seat (presumably of the truck) as the main contributing cause of pain.
In March 2021, Dr Ow-Yang records that there is a component of mechanical low back pain from bilateral L3/4, L4/5 and L5/S1 facet arthropathy but the low back pain is not the most severe problem and that the applicant seeks to undergo surgery. That surgery takes place on 2 August 2021 at the L4/L5 and L5/S1 levels only.
By September 2021, Dr Ow-Yang records that the applicant had a satisfactory surgical outcome and his lower limb radicular symptoms had resolved. The applicant was able to return to his pre-injury duties within approximately six weeks post his lumbar spine surgery in 2021. The applicant also confirms, in his statement evidence, that he had a good outcome following the 2021 surgery. Although he states he had a reduction of pain, which is not consistent with the contemporaneous medical evidence of Dr Ow-Yang of a resolution.
While the applicant submitted that his symptoms in his back did not resolve following the surgery, it is only in March 2024 that the applicant returns to Dr Ow-Yang and there is a record of disabling recurrent low back pain and lower limb radicular pain. Dr Ow-Yang does not explain what caused the recurrence or when it occurred. The contemporaneous clinical records from the general practitioner/s appear silent on report of lumbar spine complaint from on or about 2019, despite the applicant’s attendance on his treating specialists post the 2021 surgery including Dr Ow-Yang in March 2024, Dr Howard in February 2024, and Dr Miller in November 2023. The reports from these specialists do not assist to identify any specific cause of the recent recurrence of pain and lower limb radicular pain.
In his report of 2024, Dr Ow-Yang refers to a recent MRI scan of the lumbar spine but does not identify the date. Although, the reported findings appear to be different to that of the 2020 MRI scan suggestive of a more recent scan and spinal changes. Dr Ow-Yang comments that the applicant’s structural pathology and symptoms had progressed despite attempts at less invasive treatment and it is on the basis of these findings that he recommends the proposed surgery. However, Dr Ow-Yang does not explain how or why the current symptoms in 2024 had progressed nor how or why the need for surgery relates to the accepted work injury.
It is not sufficient to submit that Dr Ow-Yang does not suggest that anything aside from driving of a truck has given rise to the applicant’s symptoms, as the basis for establishing the need for the proposed surgery results from the accepted injury, which the applicant appears to submit. That is not the relevant test of causation.
The deficiencies in Dr Ow-Yang’s evidence may be explained in part due to the fact he has provided reports as a treating specialist rather than a medico-legal expert, and the applicant appears to make this concession. However, to the extent the applicant relies on that evidence I make the following further comments. Firstly, Dr Ow-Yang does not explain the contribution of the 2013 and 2015 incidents to the applicant’s reported symptoms. It is unclear whether his general comment in 2020 (prior to the 2021 lumbar spine surgery), that the applicant’s work activity and repetitive bouncing in the seat/truck caused the lumbar spine complaint, relates to the accepted injury the subject of the present pleadings. Secondly, he does not explain the contribution, if any, of the pre-existing condition in the lumbar spine identified from 2008, to the applicant’s symptoms (see further [122]). Thirdly, he does not explain the cause of the recurrence identified in 2024. Lastly, he does not explain how the proposed surgery recommended in 2024 relates to the accepted injury.
I am not assisted by the evidence of Dr Nair in determining whether the proposed surgery is a result of the accepted injury. Dr Nair’s opinion on causation is not well developed or explained. Firstly, his opinion appears largely founded in his criticism of Dr Machart’s opinion. Dr Nair states that the fact that there was degenerative pathoanatomy evident on medical imaging after the work related injuries in 2013 and 2015 reveals a permanent and anatomical work-related aggravation resulting in the degenerative pathoanatomy. However, he does not identify the aggravation with reference to specific levels of the lumbar spine affected. Secondly, he does not provide a reasoned evaluation as to how that degenerative pathoanatomy or present symptoms relates to the accepted work injury. Nor has he explained how this materially contributes (or continues to contribute) to the need for surgery, when there is objective evidence of a pre-existing degenerative condition in the applicant’s lumbar spine and medical evidence that his radicular symptoms resolved post-surgery in 2021. Thirdly, it is also unclear whether Dr Nair had a complete history. In this regard, it is unclear whether Dr Nair had a complete history of the events and lumbar spine abnormalities identified from 2008, in forming his opinion on causation. Fourthly, Dr Nair was unable to comment on the exact permutation of the proposed surgery (or even the complete surgery proposed by Dr Ow-Yang) because he did not have all of the available medical information needed. I accept that the reasonable necessity of the proposed surgery is not in issue but there remains a dispute as to whether the surgery results from the accepted injury. In these circumstances, it was essential that Dr Nair comment on the claimed proposed surgery and whether it results from the accepted injury. This did not occur. For these reasons, Dr Nair’s opinion can be given little weight in determining the material contribution to the need for the proposed surgery.

The applicant’s medical evidence does not adequately deal with the accepted pre-existing lumbar spine condition and how that relates to the need for the proposed surgery. It is likely for this reason why the applicant sought to rely on Dr Machart’s opinion on causation. However, Dr Machart’s opinion is not entirely supportive and his ultimate opinion clearly expresses a view that the need for the proposed surgery is due to the applicant’s constitutional degenerative condition. He has a complete history, including that of events from 2008, when he provides his opinions and diagnosis of multilevel lumbar spine disease and degenerative spinal canal stenosis.
In his first report, Dr Machart accepts that the applicant may have suffered an “aggravation” that accelerated the applicant’s degenerative condition in his lumbar spine but considered this to be a “limited contribution compared to the degenerative spinal disease.” He then states that the applicant’s lumbar spine symptoms deteriorated despite not working and he considered this to be consistent with progressive degeneration. It is on this basis that he considered that the proposed surgery recommended by Dr Ow-Yang was needed (see [62]).
I accept that Dr Machart’s opinion between his two reports are not entirely consistent, but his initial view that the workplace aggravation was a limited contribution to the applicant’s lumbar spine condition is confirmed in the supplementary report. Dr Machart, in his supplementary report, states that his findings did not change in that the applicant’s present pathology was multilevel degenerative condition caused by age and not caused by a specific injury. He clarifies his opinion, noting that there were episodes of aggravation (or temporary exacerbations) in 2011, 2013 and 2015 but these were not sufficient to alter the natural history of the degenerative lumbar spine disease.
Dr Machart finds the constitutional spinal degenerative disease as the reason for the need for the proposed surgery. He supported his opinion noting that symptoms had settled after 2015 and that there was a gradual onset of pain without additional injury and latter that any non-structural work related exacerbations settled before the recent deterioration and need for surgery. This is consistent with the objective medical evidence, namely, the absence of contemporaneous complaint until late 2017, the evidence post the 2021 surgery of a resolution of symptoms, and also the histories reported to the independent medico-legal experts.
Even if Dr Machart’s opinion was altered as the applicant suggests, it is unclear what weight could be attached to his initial opinion and this does not assist the applicant. Further, as the respondent submits, it is arguable that any concession Dr Machart made about injury and causation was in the context of a nature and conditions injury and not the 2013 (and 2015 recurrence) which is presently pleaded. In this regard, Dr Machart states that there is a case to be made for “chronic irritation” from “driving” but that corroboration may be necessary.
The Commission is a specialist tribunal and it can rely on its expertise in understanding the evidence before it and in drawing appropriate inferences in respect of causation (for surgery).[10] However, causation is not merely established by a reference to a complaint of symptoms recorded in the history of a report of a medical expert and a general opinion that it relates to work activities. Nor is it established in the absence of a clear medical opinion that the need for surgery results from the accepted injury. There needs to be an evaluative basis on which to make a finding of a causal nexus between a particular event (or injury) and the need for surgery. In the absence of that evidence it is inappropriate that the Commission draw an inference that the surgery results from the accepted injury.
[10] Workers Compensation Nominal Insurer v Howard [2011] NSWWCCPD 37, [89]; Hendrix v Accuro Homecare Pty Ltd [2023[ NSWPICPD 48, [85]-[86].
Whether or not the applicant’s lumbar spine pain never completely went away and has been located in the same area is relevant (although I do not accept the objective medical evidence supports such a finding). However, this does not address the ultimate question. The ultimate question being whether the need for the proposed surgery is a result of the accepted injury, or, in other words, that there is a material contribution from the accepted injury to the applicant’s current condition and need for surgery. The only doctor that addresses this question, with any sound reasoning, is Dr Machart. Dr Miller does not address this question and is of no assistance. Dr Ow-Yang does not address this question in relation to the proposed surgery. Dr Nair does not address this question and the probative value of that evidence is affected by matters stated above. While Dr Machart’s initial opinion may provide some support for the applicant’s claim it must be read as a whole, together with his opinion in his subsequent report that states the need for the surgery is due to the constitutional degenerative spinal disease and not caused by any specific injury. I accept the respondent’s submission that Dr Machart’s opinion is that there may have been an aggravation but that this was limiting, and the need for the surgery does not result from the accepted injury.
I also have some difficulty determining whether the proposed surgery as claimed and recommended by Dr Ow-Yang is a result of the accepted injury for the following reasons. Firstly, Dr Ow-Yang repeatedly refers to a “Redo” of L3/4 decompression, when that level was never subject to any surgery previously or indeed in 2021. I am mindful of the need to treat medical records with caution,[11] but as the respondent submits it does not sit with the objective facts. Secondly, Dr Ow-Yang recommends a three level fusion of the two levels previously decompressed and also L3/L4. There is no evidence as to the cause of the current impairment and symptoms at level L3/L4 or how that relates to the subject injury pleaded and accepted by the respondent. That is because there is no medical opinion that clearly explains why surgery is now required at the L3/L4 region, when it was not required previously, or how the need for surgery relates to the accepted injury. There is simply no sound explanation as to why surgery at that level has been proposed or how the proposed surgery relates to the accepted work injury. Thirdly, there is also no explanation as to why the entire procedure recommended by Dr Ow-Yang is not presently being pursued. While this may not necessarily be determinative it is relevant when the medico-legal opinions have been founded on the basis of a request that the complete surgery recommended by Dr Ow-Yang be approved.
[11] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34, at [35] (per Mason P).
The evidence may support a need for some form of surgery but I do not accept that the evidence before me indicates that the accepted injury in 2013 and 2015 materially contributes to the need for the proposed surgery claimed or that it continues to contribute in a material way to the applicant’s current symptoms.
I accept the applicant’s submission that I cannot place weight on the respondent’s investigation reports, which relies on images and video footage of a male undertaking physical activities. While this does not alter my view on the substantive issue in dispute, I make the following comments. The respondent’s owner states that the male depicted in the photographs and video footage is the applicant but this is not supported by any objective evidence. Even if it were the applicant, there is no medical evidence that has interpreted this evidence to support a view that demonstrates the applicant’s injury ceased on or about 2022 or how the activities might suggest that his symptoms were anything different to the applicant’s history of complaint. Indeed, this evidence did not give Dr Machart cause to alter his opinion. It follows that this evidence is of no probative value.
For the reasons set out above, I do not feel a sense of actual persuasion that there has been a material contribution to the applicant’s current lumbar spine condition from the compensable injury or that the proposed surgery is a result of that injury.[12]
[12] Nguyen; Ireland.
It follows that I do not accept that the applicant has discharged his onus on the balance of probabilities.

SUMMARY

The applicant has failed to discharge his onus that accepted injury materially contributes to the need for the proposed surgery.
It follows that there will be an award in favour of the respondent.

[2025] NSWPIC 487

17 September 2025