Stephenson v Menzies Campbelltown South Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Stephenson v Menzies Campbelltown South Pty Limited [2022] NSWPIC 735
APPLICANT:	Beverly Stephenson
RESPONDENT:	Menzies Campbelltown South Pty Limited
Member:	Rachel Homan
DATE OF DECISION:	22 December 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for further lump sum compensation and incurred treatment expenses; accepted lumbar injury in 2006; whether two level anterior lumbar interbody fusion performed in 2017 was reasonably necessary as a result of the 2006 injury; Held – significant changes in pathology between injury and surgery, impact of pre-existing degenerative changes, passage of time and continued manual work not addressed by applicant’s medical evidence; respondent’s expert opinions and non-binding opinion from a Medical Assessor weighed against applicant’s evidence; causal relationship between injury and surgery not established; awards for the respondent.
determinations made:	1. The applicant has failed to discharge her onus of establishing on the balance of probabilities that the two level anterior lumbar interbody fusion performed by Dr Marc Coughlan on 5 June 2017 was reasonably necessary as a result of the injury to her lumbar spine on 9 May 2006. 2. Award for the respondent with respect to the claim for medical and related treatment expenses pursuant to s 60 of the Workers Compensation Act 1987. 3. Award for the respondent with respect to the claim for further lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Ms Beverly Stephenson (the applicant) was employed by Menzies Campbelltown South Pty Limited (the respondent) as a commercial cleaner.
On 9 May 2006, the applicant was undertaking vacuuming duties with a back strap vacuum cleaner when she suffered an injury to her back. Liability for that injury was accepted by the respondent’s insurer.
On 12 November 2007, the applicant entered into a complying agreement pursuant to s 66A of the Workers Compensation Act 1987 (the 1987 Act) for lump sum compensation of $8,750 in respect of 7% whole person impairment (WPI) of the lumbar spine resulting from the injury on 9 May 2006.
On 5 June 2017, the applicant underwent a two-level anterior lumbar interbody fusion performed by neurosurgeon, Dr Marc Coughlan, at her own expense. Liability for the surgery had been disputed in notices issued on 19 February 2016 and 7 September 2016 pursuant to former s 74 of the Workplace Injury Management and Workers Compensation Act 1998.
On 25 November 2019, the applicant’s solicitors made a claim for weekly compensation and lump sum compensation pursuant to s 66 of the 1987 Act. Liability to pay the compensation sought was declined.
In 2021, the applicant commenced proceedings in the Personal Injury Commission (the Commission)[1], which resulted in a referral to a Medical Assessor for a non-binding opinion as to whether the surgery performed by Dr Coughlan was reasonably necessary as a result of the injury on 9 May 2006. The Medical Assessor was also asked to make an assessment of the degree of permanent impairment resulting from the injury on 9 May 2006, both on the basis that the surgery was reasonably necessary as a result of the injury and, alternatively, on the basis that it was not.
[1] W2045/21.
The Medical Assessor, Yuk-Key Ho, issued a Medical Assessment Certificate (MAC) on
8 December 2021, in which he gave the opinion that the surgery was not reasonably necessary as a result of the injury on 9 May 2006. For the purposes of the claim for lump sum compensation pursuant to s 66 of the 1987 Act, Medical Assessor Ho made an assessment of 22% WPI of the lumbar spine and scarring, on the basis that the surgery was reasonably necessary as a result of the injury. Alternatively, if it were determined that the surgery was not reasonably necessary as a result of the injury, the degree of permanent impairment was assessed at 6% WPI.
Those proceedings were discontinued prior to a final Certificate of Determination being issued by the Commission.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 4 October 2022. The applicant sought weekly compensation pursuant to s 38 of the 1987 Act, compensation for incurred medical and related treatment expenses pursuant to s 60 of the 1987 Act and further lump sum compensation pursuant to s 66 of the 1987 Act.
The claim for weekly compensation was discontinued at a preliminary conference on
4 November 2022. The matter was fixed for conciliation conference and arbitration hearing on 5 December 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the two level anterior lumbar interbody fusion performed by Dr Marc Coughlan on 5 June 2017 was reasonably necessary as a result of the injury on
9 May 2006;
(b) the entitlement to the s 60 expenses claimed, and
(c) the degree of permanent impairment resulting from the injury on 9 May 2006.

PROCEDURE BEFORE THE COMMISSION

At the conciliation conference and arbitration hearing on 5 December 2022, the applicant was represented by Mr Jarryd Malouf of counsel, instructed by Ms Claudia Carro. The respondent was represented by Ms Lyn Goodman of counsel, instructed by Mr Richard Orr.
The parties agreed that the MAC issued by Medical Assessor Ho was binding in respect of the claim for lump sum compensation. The applicable WPI figure would be determined by the Commission’s determination of the dispute as to whether the surgery performed by
Dr Coughlan was reasonably necessary as a result of the injury on 9 May 2006.
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) ARD and attached documents, and
(b) Reply and attached documents, other than the report of Dr Vidyasagar Casikar dated 3 February 2016, which was admitted for the purposes of the history recorded therein, pursuant to cl 44 of the Workers Compensation Regulation 2016.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by her on 10 July 2018 and
8 March 2022.
In her first statement, the applicant described the injury on 9 May 2006. The applicant was cleaning the library at Elizabeth Macarthur High School wearing a vacuum cleaner on her back. The applicant crouched down to vacuum an awkward space underneath a bookshelf wearing the backpack when she felt a sharp stabbing pain in her back and a clicking, cracking sound. The applicant felt “paralysed” with pain and her back locked.
The applicant eventually lodged a claim for workers compensation which was accepted by the insurer. The applicant was placed on light duties, and various return to work programs were put in place. The applicant could not cope with the pain or the duties and eventually her employment was terminated in or about June 2007.
The applicant stated that since the original accident she had continued to experience an extreme amount of back pain. The applicant was unable to get up from a seated position without using her hands or elbows to prop herself up. The applicant noticed shooting pains in her left and right legs along with pins and needles to the toes.
The applicant found new employment with Australian Tourism Park Management on or about 7 December 2009. The applicant was employed to perform housekeeping duties 20 hours per week in accordance with her certificates of capacity.
The applicant underwent a number of radiological investigations. The insurer paid for almost all of the applicant’s treatment expenses including, acupuncture and chiropractic treatment. The applicant was referred to neurosurgeon, Dr Marc Coughlan at the insurer’s expense.
Dr Coughlan recommended that the applicant undergo an L4/5 and L5/S1 anterior lumbar interbody fusion. No other form of treatment had helped to alleviate the applicant’s pain.
The insurer declined to pay for the surgery, but the applicant was so desperate for pain relief that she took out a personal loan to have the surgery performed at Gosford Private Hospital on 5 June 2017.
Following the surgery, the applicant ceased work pending a re-evaluation in November 2017. This was extended to February 2018 and, ultimately, Dr Coughlan formed the view that the applicant would not be able to return to work at all. The applicant described ongoing symptoms, which she said had changed her life greatly.
In her supplementary statement, the applicant said she consulted her general practitioner,
Dr Ramana Venkatesan, immediately after the injury. The applicant was referred by
Dr Venkatesan to see orthopaedic surgeon, Dr Matthew Giblin, as well as other treating specialists.
Dr Giblin prescribed various forms of treatment including cortisone injections. These were painful and had limited short-term effects. As a final option, Dr Giblin suggested a fusion surgery which the applicant refused at the time as he could not give any guarantees regarding outcome.
The applicant said she tried all the treatments that her surgeon and general practitioner suggested including, pain management, physiotherapy, acupuncture, steroid injections, hydrotherapy and strengthening programs. None of these worked too well.
After relocating to the Central Coast, the applicant came under the care of a new general practitioner, Dr Randall Harkness. Dr Harkness continued to prescribe treatments including physiotherapy and hydrotherapy. Approval for these was later stopped due to the lack of effectiveness. The applicant was referred to a psychiatrist but could not afford to continue seeing him. Eventually the applicant was referred to another surgeon, Dr Coughlan.
Dr Coughlan sent the applicant for a series of scans and X-rays and suggested a further round of injections. The applicant told Dr Coughlan that the injections had not worked and she did not wish to have any further injections. As a last alternative, Dr Coughlan recommended surgery. The applicant consented to the surgery but, as approval was declined, had to take out a personal loan.
After the surgery, the applicant continued to undergo physiotherapy and a strengthening program. The applicant was prescribed medication including Norspan patches, Lyrica and Endone. The applicant returned to her original general practitioner, Dr Venkatesan.
The applicant described a marked improvement in her back pain during the first COVID-19 lockdown. The applicant stated:
“During the period sometime about July/August of 202[0], during the Covid lock down, I had an opportunity to not attend any medical appointments and not being exposed to doctors trying to get me to do exercises or other things which would usually aggravate my back. Sometime on or about December of 2020 or just before December 2020, l noticed a real marked improvement in my back pain.
Sometime in September 2021, I remember feeling confident enough because my pain levels had finally decreased, to tell my GP, Dr Vankatesan that I was intending to get off most of my medications as I did not fee! that I needed them any further and that l was feeling quite sick and constipated because of it. Dr Vankatesan was rather surprised that I was going to go off my medications but I explained to him that I was doing quite well and didn't feel that I needed them and did not want to be relying on them any further in any event.
Since on or about September 2021, I have not taken any further prescribed medication as I was before. l stopped taking Endone as soon as I was able following the operation as l was worried about getting ‘hooked’. I no longer take the Norspan patches which I used to take being a 5-milligram patch what would be worn for a 7-day period. l no longer take the Lyrica which I was taking almost daily and I no longer take the Codral Forte which at the height of my post-surgery operation I was taking approximately up to 10 per day.
Since on or about September/October 2021, I have not taken any prescribed medication and only have Panadols when needed.”
The applicant said she did not experience the same level of pain as she did before the surgery. The applicant said she had advised the Medical Assessor that she was feeling 50% better. The applicant was very happy with the outcome of the surgery as it had improved her ability to return back to doing some household chores and participate more in the family’s recreational activities.
At the applicant’s worst and after the surgery, especially in 2018 and 2019, the pain was too much to participate in such activities and the applicant could not sit or walk for long periods. Prior to the surgery and for quite some time following the surgery, the applicant found it near impossible to obtain a good night’s sleep. The applicant now slept better and felt more comfortable. The applicant’s appetite had also increased and she was now at her usual weight of 56 to 57 kg after dropping to approximately 45 kg prior to the surgery.

Treating evidence

A letter to the applicant’s general practitioner, Dr Ramana Venkatesan from Rehab Management, dated 26 July 2006 noted that the applicant was “only just managing” with her current duties.
The report of an MRI scan of the lumbosacral spine on 13 September 2006 recorded disc desiccation from L3 to S1 with a small annular rupture on the right postero-laterally at L4/5. No definite encroachment on adjacent neural structures was seen.
On 15 September 2006, orthopaedic surgeon, Dr Matthew Giblin reported that he had asked the applicant to have a right sided L4/5 epidural steroid injection after reviewing the MRI scan.
The injection was performed on 26 October 2006. A report from Rayscan Imaging, of the same date, recorded that the applicant had experienced some radiculopathic symptoms initially in the distribution of presenting pain and noted some improvement in pain following the procedure.
On 13 November 2006, Dr Giblin reported that the applicant had done well following the epidural steroid. The applicant was to continue with physiotherapy and hydrotherapy and was given a prescription for Mobilis.
Dr Giblin reported that the applicant had a 50% relief of her pain following the epidural steroid but was still quite sore on 8 December 2006. It was suggested that the applicant consider a right-sided L3 to S1 facet block for her residual pain.
A report from Rayscan Imaging, dated 15 February 2007 indicated that the applicant experienced marked stimulation of presenting pain on injection at both L3/4 and L4/5. The applicant was unable to continue with the L5/S1 facet joint injection. On review following the procedure, the applicant noted considerable resolution of symptoms.
Dr Giblin reported on 9 March 2007 that the applicant had considerable resolution of her symptoms following the facet joint injections at L3/4 and L4/5. The applicant was better than she was and was to stop physiotherapy and continue with her own exercises. It was suggested that the applicant see a pain specialist if symptoms recurred.
On 20 April 2007, Dr Giblin reported that the applicant’s symptoms had plateaued. It was recommended that the applicant consider a facet rhizolysis but the applicant did not want any further injections. Dr Giblin noted:
“Her husband asked me about surgery, but she doesn't want surgery. The only surgery that is available to her is a fusion, so I didn't see the need to pursue the ins and outs at this stage, as she is definitely adamant she didn't want anything along those lines.”
On 5 October 2007, Dr Giblin reported that he had referred the applicant to the Pain Clinic at North Shore Hospital for facet rhizolysis.
A report from Associate Professor Michael K Nicholas from the ADAPT Pain Management Program at Royal North Shore Hospital, dated 17 March 2008 indicated that the applicant presented as moderately disabled by her persisting pain. The applicant had difficulty with the more manual tasks of daily living. It was suggested that the applicant would benefit from the ADAPT Program.
In response to a questionnaire from the insurer dated 12 May 2010, general practitioner,
Dr Randall Harkness, indicated that he was treating the applicant for “repetitive back strain”. The applicant was being treated with physiotherapy and acupuncture as well as Norspan patch applied weekly, Lyrica, Panadeine Forte and Panamax.
In response to a questionnaire, dated 17 November 2011, Dr Harkness reported that there had been no change to the applicant’s treatment apart from the insurer stopping physiotherapy. The applicant was not capable of upgrading to her pre-injury hours of 25 hours per week.
Similarly, in response to a questionnaire dated 30 May 2012, Dr Harkness recorded that the applicant was only just coping with her duties as is. The applicant was being treated with analgesia, NSAIDs and rest.
On 10 May 2013, the applicant underwent a CT scan of the lumbar spine in respect of lumbosacral pain radiating down both legs.
A further CT scan of the lumbar spine was performed on 6 February 2015. The findings were said to be unaltered since the previous CT.
The applicant was seen by neurosurgeon, Dr Mark Coughlan on 16 February 2015.
Dr Coughlan reported that the applicant had mostly axial lower back pain and bilateral leg pain worse on the left side. The recent imaging showed a significant vacuum phenomenon at L5/S1 and lateral recess stenosis on the left at L4/5. Dr Coughlan arranged an MRI scan, which was performed on 4 March 2015.
On 25 May 2015, Dr Coughlan reported that the applicant had significant back pain radiating to both legs. The left leg had become progressively worse over the course of the past few months. The applicant had foraminal stenosis at L5/S1, particularly on the left side. Dr Coughlan said he had discussed the various options with the applicant and considered it worthwhile to pursue conservative, non-operative options. If all else failed, the applicant could consider an L5/S1 anterior interbody procedure. Dr Coughlan referred the applicant to Dr Mark Russo, a pain specialist.
Dr Coughlan reported on 28 August 2015 that the applicant continued to have severe axial back pain and left leg pain. An MRI scan showed marked discogenic oedema at L5/S1 and, to a lesser degree, a stress response at the L4/5 pars pedicle border. A fine slice CT scan showed significant subchondral cysts in both the L4/5 facet joint and that at L5/S1.
Dr Coughlan expressed the opinion that ultimately the applicant would require surgery, given the amount of structural changes to those levels. It was noted that the applicant was keen to pursue conservative non-operative treatment with Dr Russo and he encouraged her to do this.
On 10 December 2015, Dr Coughlan indicated that the applicant had persevered with conservative treatment for a long period of time but had not noticed any significant improvement. Dr Coughlan recommended a two-level anterior lumbar interbody fusion targeting L4/5 and L5/S1. Approval for the surgery was sought on 23 December 2015.
On 15 December 2016, Dr Coughlan reported that the applicant continued to have very significant back and leg pain. The symptoms were becoming quite incapacitating and really affecting the applicant’s quality of life.
A CT scan performed post-surgery on 6 June 2017 indicated that there were no complicating features at L4/5 and L5/S1.
In a certificate dated 20 June 2017, Dr Coughlan confirmed that the applicant underwent the spinal surgery on 5 June 2017 at Gosford Private Hospital and was unfit for work.

In a report dated 20 March 2018, Dr Coughlan stated,
“This is to confirm that Mrs Beverley Stephenson underwent a major 2 level anterior lumbar interbody fusion with me on the 5^th June 2017. At the time of her post op review we went over her returning back to work on reduced hours in November, unfortunately due to Mrs Stephenson’s recovery she has been unable to return to work and does not look like she will be able to return to work due to her condition.”
In a report dated 5 September 2018, Dr Coughlan gave an opinion on the necessity for the surgery performed by him:
“Mrs Beverley Stephenson has been a patient under my care since February 2015. In 2006, during the course of her work as a cleaner, Beverley sustained a work related injury which resulted in the need for surgery in the form of an anterior lumbar interbody fusion on 5 June 2017.
In the intervening years, Beverley had ongoing back and leg pain. She battled on at work as a cleaner with lifting restrictions in place and working at reduced hours. Beverley continued on conservative measures under the care of a pain specialist until her symptoms got to the point where they were affecting her normal activities of daily living and surgery was recommended. Her updated imaging confirmed a significant vacuum phenomenon at L5/S1 and lateral recess stenosis on the left at L4/5.
I do believe that the initial injury she sustained in 2006 was a substantial contributing factor in the need for her surgery.”
Dr Venkatesan prepared a report for the applicant’s solicitors on 11 June 2022. Dr Venkatesan confirmed that he had known the applicant in a professional capacity since about 1993.
Dr Venkatesan noted that after the injury, the applicant was seen by himself and referred for various investigations including bone scans, which showed degenerative changes. The applicant was referred to Dr Giblin who organised facet joint injections, however, the relief was temporary. The applicant was offered a spinal fusion at the time but declined. Subsequently, the applicant had not only lower back pain but also paraesthesia in both lower limbs severe enough to restrict her activities of daily living and social activities.
Dr Venkatesan noted that after moving to the Central Coast. The applicant was referred by a local doctor, Dr Harkness, to Dr Coughlan, who was reassuring at the chances of obtaining a satisfactory outcome from a fusion operation. Post-operatively, the applicant was advised by Dr Coughlan not to return to her previous employment.
As of 2018, the patient had ceased all analgesia. Overall, the applicant was better able to complete activities of daily living, although certain activities remain restricted.

Dr Conrad

The applicant relies on medicolegal reports prepared by surgeon, Dr Peter Conrad, dated
24 July 2019 and 13 November 2019.
In his first report, Dr Conrad took a history of the injury on 9 May 2006. Dr Conrad noted that the applicant had been treated conservatively by Dr Matthew Giblin and had more recently seen a neurosurgeon, Dr Coughlan, who had recommended a fusion operation to the lumbar spine.
It was noted that the applicant performed light duties following the injury until June 2007, when she was put off work by her employer. The applicant returned to work in December 2009 performing housekeeping duties at 20 hours per week until the surgery in June 2017. The applicant had not worked since the operation.
The applicant’s present symptoms included ongoing back pain radiating to both legs, worse with standing, sitting, bending or lifting. The applicant continued to take tablets for pain but was no longer undergoing physiotherapy or other ancillary treatment.
On examination, Dr Conrad found flexion of the lumbar spine of hands to 2 inches above knees. Straight leg raising was 45° on both sides. There was moderate paravertebral muscle spasm present but no neurological signs in either leg.
Dr Conrad considered a number of radiological investigations dating from 11 May 2006 to
6 June 2017.
Dr Conrad gave the opinion that the accident on 9 May 2006 caused “an injury to her lumbar spine … which culminated in a two- level lumbar fusion operation by Dr Coughlan”.
Asked for an opinion on the reasonable necessity for the surgery performed by Dr Coughlan as a result of the work injury, Dr Conrad responded:
“My view is that the accident of 9 May 2006 was the main contributing factor to the necessity of the lumbar fusion operation by Dr Coughlan.”
In his second report, Dr Coughlan made assessments of WPI resulting from the frank injury on 9 May 2006 and a second injury to the cervical spine and both shoulders due to the nature and conditions of employment.

Dr Carney

The applicant was seen by a second neurosurgeon at the request of the insurer, Dr Paul Carney, on 30 January 2017. In a report dated 31 January 2017, Dr Carney took a history of the injury on 9 May 2006 and noted that the applicant was being treated by Dr Coughlan. The applicant described severe lower back pain treated by medication only.
Dr Carney noted that the applicant had returned to light cleaning duties, working 20 hours per week. The applicant said she suffered at the end of the day when she had difficulty getting in and out of the car.
The applicant described pain across the lower back into the front of the thighs and the left lateral thigh, associated with pins and needles to the toes of her feet. The applicant described generalised weakness. The applicant was hardly sleeping, having three to four hours of sleep per night.
On examination, the applicant was noted to have a thoracolumbar kyphoscoliosis of a moderate degree and to walk with her foot turned in. It was noted that the applicant used her arms during transfers. Straight leg raising was tolerated to 80° on both sides.
Sensory testing gave a stocking distribution of sensory impairment to pin prick in a typically non-organic pattern. It was noted that the applicant experienced increased pain even with the lightest finger touching over the lower lumbar area. The applicant also said that over the upper lumbar area, the touching made the pain shoot down her back, which was a non-organic response.
Dr Carney gave the opinion:
“It is likely in that incident, she suffered either a small annular tear at L4/5 or a facet joint injury but without any prolapse or nerve root compression. An injury of this nature normally improves significantly within three months. I am unable to find a basis for her complaints of leg pain and numbness and it appears that psychological factors have influenced her responses to this injury from the beginning.
Evaluation of her physical status today and review of imaging studies suggest there has been some natural progression of degenerative changes continuing since 2006 but no evidence of further injury.
In passing, I consider that operative intervention in the form of lumbar fusion would be unlikely to succeed in Mrs Stevenson and would carry a significant risk or worsening her status.”
In a supplementary report dated 7 December 2018, Dr Carney noted that the applicant had now undergone an anterior lumbar interbody fusion at the L4/5 and L5/S1 levels. The applicant described her state since the operation as a lot better but not 100%.
The applicant still had numbness and pain radiating to her buttocks and hip area and her feet continued to go numb and her toes continued to cross. The applicant described symptoms in other areas and said “my body has just had it”.
The applicant had not returned to work and had been told not to return to work. The applicant could not do her housework properly. The applicant’s current treatment continued to be Norspan patches, Lyrica and Panadeine Forte.
The applicant said her pain averaged 7/10 most days. If the applicant tried to do too much, the pain would “go off the scale”.
Prior to the surgery, the applicant was working four hours a day doing some vacuuming, making up low bunks but not the high bunks, as well as kitchen and bathroom work.
Dr Carney recorded:
“She says that overall, she is glad she had the operation. She described herself as crying, frustrated and agitated before it was done. She says now she gives one big scream and she is ‘over it’.”
The applicant reported that she was walking less now than she used to and continued to sleep only three or four hours a night. The only time the applicant had taken off work previously was shortly after the injury in 2006.
Dr Carney observed that the applicant had been very cheery when sitting in a chair giving her history, but as soon as his examination started, she began to breathe heavily and exhibit significant pain behaviour, including crying. The applicant was unable to walk on her toes and took only a few small steps on her heels. Straight leg raising was 80° on both sides with complaints of tingling in the fronts of the thighs and the lateral aspects of the thighs.
Dr Carney obtained a non-organic pattern on pin prick testing with expanding boundaries, non-anatomical distribution and non-congruence with temperature sensation. Even the lightest touch in the region of the lumbar spine caused a profound pain reaction, indrawing of breath, gasping and complaints of very severe pain.
Dr Carney gave the opinion:
“Since the fusion, despite her statement that she feels better, examination findings indicate considerable worsening of her pain state and decreased capacity for activity. There is still strong evidence that psychological factors are a major complicating feature of this illness.
There is now a considerable body of evidence that performing lumbar fusion in a compensation setting, let alone where there are overt psychological factors (active) results in a considerably worse and outcome with a very poor prognosis for return to work, or reduction of narcotic intake, or improved pain behaviour. That appears to be the case here.”
Dr Carney reiterated his previous view that the applicant probably sustained a small annular tear at L4/5 or a facet joint injury without evidence of prolapse or nerve root compression. This was in a setting of considerable degenerative change. Dr Carney remained of the view that psychological factors had strongly influenced the injury from the beginning.
Dr Carney stated:
“The incident with Menzies on 9 May 2006 was a contributing factor to her current diagnosis and symptoms. I do not consider it as a substantial contributing factor in organic terms in that the sort of injury she sustained should have resolved within three or four months.”
With regard to the surgery performed by Dr Coughlan, Dr Carney gave the opinion:
“I do not consider that the surgery performed by Dr Coughlan can be regarded as reasonably necessary for the work-related injury in view of the poor prognosis of such surgery in the setting. Nevertheless, it should be noted that opinions vary considerably amongst spinal surgeons concerning the indications for, and success rates of such surgery.”

Dr Walsh

The respondent also relies on a medicolegal report prepared by orthopaedic surgeon,
Dr John Walsh, dated 17 January 2019.
Dr Walsh took a history of the injury on 9 May 2006 which was consistent with the applicant’s first statement evidence. The applicant described her present complaints as including some pins and needles, pain in her ankle and toes, and inability to sleep on her left side.
On examination, Dr Walsh noted that the applicant stood with a scoliosis with a prominent right rib hump. Dr Walsh observed that the applicant was somewhat “over reactive”. By this, Dr Walsh explained that he considered there was a psychological reaction to examination. The applicant had reduced movements of her lower back to about half range of normal.
Dr Walsh considered the radiological investigations provided to him and number of medical reports, some of which are not in evidence before the Commission in these proceedings.
Dr Walsh concluded that the applicant sustained a spraining injury to the facet joints of the lower back following an incident at work in May 2006. Dr Walsh noted that there were significant degenerative changes in the upper thoracic spine and presumably the cervical spine as well. Dr Walsh noted that the applicant had a mild antero-listhesis of L4 on L5, which was not present when she first injured her back in 2006. This had come about through degeneration in the facet joints.
Dr Walsh stated:
“I do not consider that the necessity for spinal fusion was based on the work-related incident but there would have been natural degenerative changes continuing over the course of the 10 years. The response has been fair.”

Medical Assessment Certificate

In his MAC, dated 8 December 2021, Dr Yiu-Key Ho, recorded a history of the injury to the applicant’s lumbar spine on 9 May 2006 in a manner consistent with the other evidence.
Medical Assessor Ho noted that the applicant was seen by Dr Giblin who treated the applicant with conservative treatment including physiotherapy, epidural and facet joint injection and medication. Dr Giblin suggested surgery, but the applicant did not proceed. The applicant was advised by her general practitioner to defer the surgery as long as possible. The applicant returned to work in 2009 but suffered with constant back pain as well as pain and pins and needles in both legs. The applicant was referred to Dr Coughlan in 2015 and treated conservatively initially. After about one year, the applicant was advised to have a fusion between L4/5 and L5/S1.
Prior to the surgery, the applicant described constant backache, emotional problems, lifestyle change and numbness of both lower limbs. The applicant reported that the operation was helpful in reducing about 50% of the pain but there were still pins and needles.
The applicant’s current treatment included use of a TENS machine, self-exercise and Panadeine Forte.
The applicant’s present symptoms were described as:
“She complains of pain, although the pain has been improved by 50%, there is still pins and needles and shooting pain down both legs. She has trouble to stand for more than half an hour, sitting also restricted and similarly walking.”
Medical Assessor Ho recorded his findings on examination, commenting that he found the applicant to be exaggerating during the consultation and the examination:
“I cannot find any obvious deformities of the back. There is no obvious muscle spasm. The back movement was very restricted. Forward flexion probably less than half of normal. Similarly for all other range of movements they are stiff. Straight leg raising was interesting. In the sitting position she can bring it up to 70° and did not complain much but in the lying down position she stopped at 40° she says it causing more pain in the back. I cannot find any neurological deficit in both lower limbs although patient still in the history complain of pain shooting down on both legs. There is no muscle wasting, no weakness, and no impairment of reflex.”
Medical Assessor Ho considered MRI scans performed on 13 September 2006 and 4 May 2015. A preoperative CT scan performed on 10 May 2015 was compared with a post-operative CT scan dated 6 June 2017. Medical Assessor Ho said the initial radiological investigations showed only relatively early degenerative changes.
With regard to the surgery performed by Dr Coughlan, Medical Assessor Ho gave the opinion:
“Right after the injury the MRI at that time only showed mild degenerative changes. Certainly she failed to improve with all sorts of conservative treatments and usually that would be an option of surgery. However based on the clinical presentation and the radiological findings surgery was certainly not indicated. Somehow nine years later she was operated on and once again without obvious surgical indication. I do not think on the radiological investigations and clinical presentation that she definitely had radiculopathy The surgery of fusion was done only to try to help the back pain.
…
My opinion certainly concurs with a couple of others reports such as Dr Carney in 2017 and 2018. He does not agree that the operation is related to the work injury. He does not think operation is reasonable or necessary because she demonstrates so much psychological overlay. Similar for Dr Walsh in 2019 and I can understand when patient always complain of pain surgery is always one of the options. But to have a successful outcome we need enough surgical indication, a stable patient with no psychological overlay. My conclusion is that this operation is not reasonably necessary for the injury in 2006 because at that time the pathology was minimal looking at the MRI scan done after the injury and patient could still work for another eight years although there was a gap of three years for her to try to find another new job. She may have further deterioration of the overall problem and end up with operation in 2015 but if we just base on 2006 there is no strong indication for surgery, hence I do not think it is reasonably necessary. As a matter of fact even in 2015 I agree with all the other assessments like Dr Carney and Dr Walsh there is still not enough surgical indication for surgery and I do not think this operation is reasonably necessary for the injury in 2006.”

Submissions

The Commission has been assisted by the oral submissions of Mr Malouf and Ms Goodman. Those submissions were recorded and I do not propose to recite them here. They are, however, addressed in the findings and reasons below.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act.
Section 60 of the 1987 Act relevantly provides:
“(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).”
In these proceedings, there is no dispute that the applicant sustained an injury to her lumbar spine on 9 May 2006. What requires determination is whether the surgery performed on the applicant’s lumbar spine by Dr Coughlan in 2017 was reasonably necessary as a result of that injury.
It is the applicant who bears the onus of establishing on the balance of probabilities that the surgery was reasonably necessary as a result of the accepted injury. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[2] McDougall J stated at [44]:
“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] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[2] [2008] NSWCA 246.
The test in s 60 requires consideration of both the causal relationship to the injury and the reasonableness of the treatment.
With regard to causation, a common sense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[3], where Kirby P said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[3] (1994) 10 NSWCCR 796 at [810].

His Honour said at [463]-[464]:
“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.”
It is uncontroversial that a need for treatment can result from multiple causes. In Murphy v Allity Management Services Pty Ltd[4] Roche DP stated:
“…That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[4] [2015] NSWWCCPD 49.
What constitutes “reasonably necessary” treatment was considered in the context of s 10 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[5] where Burke CCJ stated:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[5] (1986) 2 NSWCCR 32 (Rose).
Further, his Honour added:
“1.     Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.      However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
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.”
His Honour considered the relevant factors relating to reasonably necessary treatment under s 60 of the 1987 Act in Bartolo v Western Sydney Area Health Service[6] and stated:
“The question is should the patient have this treatment or not. If it is better that he has 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.”
[6] [1997] NSWCC 1.
In Diab v NRMA Ltd[7], Roche DP provided a summary of the relevant principles as follows:
“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] NSWCC 13; (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’.”[8]
[7] [2014] NSWWCCPD 72.
[8] At [88] to [90].
Deputy President Roche commented further[9]:
“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.”
[9] At [86].
It is convenient to consider the causal relationship between the injury and surgery first. There is nothing in the material before the Commission to indicate that the applicant experienced lower back symptoms prior to the accepted injury on 9 May 2006. The applicant’s evidence, which I accept, is that in the injurious event, she experienced a sudden onset of acute and disabling pain, accompanied by clicking or cracking sound.
The treating evidence before the Commission is unclear with regard to a diagnosis of the work injury. The radiological investigations taken shortly after the injurious event do, however, confirm the existence of pre-existing degenerative changes. In addition to degenerative changes, the radiological evidence confirmed the presence of a small, contained annular rupture on the right posterolaterally at L4/5 without definite encroachment on adjacent neural structures.
In his report of 15 September 2006, Dr Giblin noted the presence of degenerative arthritis of the facet joints and disc dessication from L3 to S1. The focus of his initial treatment was, however, L4/5 and the site of the small, right sided, disc protrusion. A right sided steroid injection was given at that site in October 2006.
Consistently with the radiological evidence and Dr Giblin’s approach, Dr Carney gave the opinion that it was likely the incident caused the small annular tear at L4/5 or a facet joint injury but without any prolapse or nerve root compression.
Dr Walsh considered that the injury consisted of a “spraining injury to the facet joints”.
In his MAC, Medical Assessor Ho did not make a clear diagnosis but noted that the MRI at the time showed only “mild degenerative changes”.
The applicant’s medicolegal expert, Dr Conrad, was similarly vague as to what the “injury” comprised, stating only that the event caused an “injury” to the lumbar spine.
As indicated above, the focus of treatment initially appears to have been on right sided symptoms and pathology. The reports of Dr Giblin and Raysan Imaging suggest that the right sided L4/5 injection in October 2006 resulted in a 50% relief of the applicant’s pain, although the applicant remained still quite sore. Further injections were administered on the right at L3/4 and L4/5 in February 2007. Again, a “considerable” resolution of symptoms was reported. As a result, it was considered unlikely that an L5/1 facet joint injection was required.
A few months later, however, in April 2007, the applicant’s symptoms were persisting. The reports from Dr Giblin around this time, indicate that he had considered a facet rhizolysis was the appropriate next step. The applicant was, however, unwilling to have any further injections.
The applicant’s evidence and the histories recorded by the medicolegal experts in this case suggest that Dr Giblin did, around this time, recommend or offer the applicant surgery. The only reference to surgery in the reports from Dr Giblin in evidence, however, is contained in the report dated 20 April 2007. In this report, Dr Giblin indicated that the applicant’s husband had asked about surgery. As the applicant was adamant that she didn’t want surgery, the suggestion was not pursued. Dr Giblin reiterated that a facet rhizolysis was “probably the best thing for her to try”.
I am not satisfied on this evidence that surgery was actively considered or recommended by Dr Giblin, let alone surgery of the kind ultimately performed by Dr Coughlan.
The applicant was referred to a Pain Management Program although it is not clear on the material before me that it was completed. In fact, the evidence before the Commission is notable for the sparsity of the contemporaneous treating evidence after this time.
I am prepared to accept from the questionnaires completed by Dr Harkness that the applicant continued to complain of back symptoms and undergo various forms of conservative treatment, including medication, co-ordinated it seems by her general practitioners over the next eight years. There are, however, no clinical records from the applicant’s general practitioners in evidence. Nor is there any evidence of specialist treatment between late 2007 when the applicant was last seen by Dr Giblin and February 2015 when she was seen by Dr Coughlan.
It is not apparent from the contemporaneous evidence whether the nature or frequency of the applicant’s complaints of symptoms changed, or whether there were any particular flare ups or aggravations.
The applicant was, however, referred by Dr Harkness for a further CT scan in May 2013. By this time, it seems the applicant was experiencing referred pain into both legs. The reported findings also show a considerable deterioration in the pathology. At L4/5 there were “pronounced” degenerative changes, a degenerative anterior subluxation of L4 with respect to L5 and minor flattening of the thecal sac. At L5/S1 there was gas present in the narrowed and degenerate disc with broadbased disc bulging abutting the thecal sac. There was “pronounced” degeneration in the left facet joint.
A CT scan performed on 8 February 2015 was reported to show similar changes.
When the applicant was first seen by Dr Coughlan, he noted her reports of axial lower back pain and bilateral leg pain, worse of the left. He appears to have been particularly concerned with the “significant vacuum phenomenon at L5/S1” and “lateral recess stenosis on the left at L4/5”.
A review of the treating evidence indicates that these pathological changes were not reported in the radiological investigations done in 2006.
An MRI requested by Dr Coughlan in March 2015, also showed anterolisthesis at L4/5, mild central stenosis and bilateral neural foraminal stenosis. At L5/S1 there was bilateral neural foraminal stenosis with possible contact with the exiting left L5 nerve root. This was described by Dr Coughlan in a report of 25 May 2015 as “quite marked” particularly on the left side. Dr Coughlan also commented on the left leg symptoms having become “progressively worse over the course of the past few months”.
Dr Coughlan recommended treatment focusing on reducing sensitivity at L5 and suggested that if all else failed, the applicant could consider a fusion procedure at L5/S1.
After suggesting the applicant persevere with conservative treatment, surgery was ultimately proposed at both L4/5 and L5/S1, but particularly L5/S1, due to the extent of the structural changes at those levels.
This review of the treating evidence confirms that both the structural pathology revealed on radiological investigation and the symptoms reported changed and deteriorated significantly between 2006 and about 2013. The particular pathology identified by Dr Coughlan as justifying the procedure he ultimately performed was not reported in the 2006 scan.
Although it possible that the work injury on 9 May 2006 contributed materially to the development of the pathology seen in 2013 and the need for treatment identified by Dr Coughlan, the evidence relied on by the applicant does, in my opinion, fall short of establishing the necessary causal relationship on the balance of probabilities.
In the intervening period, the applicant had returned to work performing housekeeping duties at reduced hours for a number of years. The applicant was aged in her late fifties by the time she was seen by Dr Coughlan.
In his report of 5 September 2018, Dr Coughlan expressed the view that the work injury “resulted in the need for surgery” and was a “substantial contributing factor in the need for her surgery”. Dr Coughlan did not, however, account for the fact that neither the vacuum phenomenon at L5/S1 nor the lateral recess stenosis on the left at L4/5 were features of the earlier imaging. He did not address the fact that right sided pathology at L3/4 and L4/5 was the focus of Dr Giblin’s early treatment. Dr Coughlan did not address the impact of the pre-existing degenerative changes, the passage of time, the applicant’s age or the applicant’s ongoing manual work.
Although Dr Coughlan records the fact that the applicant had continued with lumbar symptoms from the date of the work injury, I am not satisfied that the presence of ongoing symptoms within the lumbar region is sufficient to establish that the need for the particular surgery performed by Dr Coughlan in 2017 “resulted from” or was “materially contributed” to the work injury in 2006.
The report from Dr Venkatesan suffers from the same defect. Although Dr Venkatesan suggests the applicant’s symptoms persisted from the time of the work injury, he notes the deterioration and changes in symptoms without explaining how these “resulted from” the work injury.
Dr Conrad’s reports do not take the matter any further. Dr Conrad has expressed an opinion favourable to the applicant’s case but that opinion is not supported by any reasoning sufficient to give insight into the basis of his opinion. In this regard, I consider that
[10] [2001] NSWCA 305.
Dr Conrad’s opinion on the causal relationship between the injury and the surgery falls foul of the considerations set out in cases such Makita (Australia) Pty Ltd v Sprowles[10].
Weighing against the applicant’s evidence are the opinions of Dr Carney, Dr Walsh and
Medical Assessor Ho.
Dr Carney has indicated that the injury suggested by the early radiological investigations would normally improve significantly within three months. Dr Carney said there appeared to have been some natural progression of the applicant’s considerable degenerative changes.
Dr Walsh noted that the anterolisthesis of L4 on L5 was not present when the applicant first injured her back in 2006. Dr Walsh noted the significant degenerative changes in other parts of the applicant’s spine and said the anterolisthesis had come about through degeneration in the facet joints. Dr Walsh did not consider that the necessity for spinal fusion was based on the work-related incident but rather natural degenerative changes continuing over the course of the following 10 years.
The applicant’s submissions criticised Dr Carney’s and Dr Walsh’s opinions for failing to pay sufficient regard to the improvement of symptoms following the surgery. It was also suggested that they had expressed unqualified opinions with regard to psychological overlay. Those experts’ opinions on the causal relationship between the injury and surgery were dismissed on the basis that injury was not in dispute.
The respondent’s submissions did, however, deal extensively with the gaps in the treating evidence, the changes in the radiological findings and changing leg symptoms. The respondent suggested that the progression in the degenerative changes was not out of keeping with the natural course. Whilst accepting a causal relationship between employment and the work injury, the respondent did not accept the requisite causal relationship existed as between the injury and the need for surgery.
Medical Assessor Ho has provided an independent, non-binding opinion in his capacity as Medical Assessor that is consistent with the opinions of Dr Walsh and Dr Carney. Medical Assessor Ho noted that right after the injury the MRI showed only mild degenerative changes and suggested that both on the radiological findings and the applicant’s clinical presentation, surgery was not, at the time, indicated. The applicant was able to work for a further eight years and in that period there was a “further deterioration of the overall problem”.

I agree with the applicant’s submission, that the Commission would be asking a wrong question if it considered only whether surgery was reasonably necessary based on the pathology and clinical presentation 2006. The correct question is whether the need for surgery, at the time it was performed, resulted from the work injury. As I have indicated above, it is certainly possible, for example, that the work injury exacerbated or aggravated the pre-existing degenerative changes in a permanent or otherwise material way resulting the later need for surgery. There is no clear, reasoned opinion from any of the applicant’s doctors indicating that this is what occurred in the applicant’s case.
It is the applicant’s onus to establish a material contribution on the balance of probabilities. Despite the presence of persisting lumbar symptoms commencing from the time of the injury and an improvement in symptoms several years after the surgery, the applicant’s evidence is insufficient to discharge that onus in the face of the radiological evidence of pre-existing degenerative changes; evidence of significant changes in both pathology and symptoms over the course of the following seven years; the passage of time, the applicant’s age and her ongoing manual employment; and the opinions expressed by Dr Carney, Dr Walsh and Medical Assessor Ho. Consideration of the lay and medical evidence as a whole does not leave me with a sense of actual persuasion that the need for the surgery performed by Dr Coughlan “resulted from” the injury on 9 May 2006 for the purposes of s 60 of the 1987 Act.
For this reason, it is not necessary to consider the evidence and submissions dealing with the reasonable necessity of that particular treatment.
It follows from the finding above that Medical Assessor Ho’s assessment of 6% WPI of the lumbar spine resulting from the injury on 9 May 2006 applies and determines the applicant’s entitlement to lump sum compensation pursuant to s 66 of the 1987 Act. I am not satisfied on the basis of this assessment that the applicant has established an entitlement to further lump sum compensation pursuant to s 66(1) of the 1987 Act. There will be an award for the respondent with respect to the claim pursuant to s 66 of the 1987 Act.
With regard to the claim for s 60 expenses, I am not satisfied that the applicant has established an entitlement to compensation for the costs of and incidental to the two-level anterior lumbar interbody fusion performed by Dr Coughlan on 5 June 2017. As the s 60 expenses particularised in the ARD related only to that surgical procedure, there will be an award for the respondent in respect of the claim pursuant to s 60 of the 1987 Act.

[2022] NSWPIC 735

22 December 2022