Stewart v Trustees of the Roman Catholic Church for the Diocese of Parramatta

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Stewart v Trustees of the Roman Catholic Church for the Diocese of Parramatta [2021] NSWPIC 172
APPLICANT:	Robert Stewart
RESPONDENT:	Trustees of the Roman Catholic Church for the Diocese of Parramatta
MEMBER:	Michael Wright
DATE OF DECISION:	7 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for proposed lumbar two-level fusion surgery pursuant to section 60(5) of the 1987 Act; dispute as to whether proposed surgery is “reasonably necessary”; Diab v NRMA and Rose v Health Commission (NSW) considered; a range of different treatments may be considered reasonably necessary and it is only necessary for the applicant to establish that the proposed surgery is one of those treatments; Broadspectrum Australia Pty Ltd v Gunaratnam and Broadspectrum Australia Pty Ltd v Skiadas considered in respect of the potential effectiveness of the proposed treatment and whether that potential has a low threshold; Held-found that proposed surgery is reasonably necessary; respondent ordered to pay the costs of the proposed surgery.
DETERMINATIONS MADE:	1. The surgery proposed by Dr Cherukuri, being re-do bilateral L4/5 and L5/S1 laminectomy, foraminotomy, rhizolysis, posterior lumber interbody and posterolateral fusion (the surgery), is reasonably necessary as a result of the injuries on 2 March 2018 and 31 May 2018. 2. The respondent pays, pursuant to section 60(5) of the Workers Compensation Act 1987 the costs of and associated with the surgery.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute (ARD), Mr Robert Stewart (the applicant) claims pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act) surgery proposed by Dr Cherukuri, being re-do bilateral L4/5 and L5/S1 laminectomy, foraminotomy, rhizolysis, posterior lumber interbody and posterolateral fusion, (the proposed surgery), as a result of injuries on 2 March 2018 and 31 May 2018 in the course of his employment with Trustees of the Roman Catholic Church for the Diocese of Parramatta (the respondent).
The section 78 notices dated 22 December 2020 and 11 March 2021 disputed that the proposed surgery was reasonably necessary medical treatment.

PROCEDURE BEFORE THE COMMISSION

At the conciliation/arbitration of this matter on 5 May 2021, the applicant was represented by Mr A Parker of counsel, instructed by Mr M Rowney, solicitor, and the respondent by
Mr P Stockley, instructed by Mr T Murray, solicitor.
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.
Leave was granted at the arbitration to the applicant’s application, without objection from the respondent, to delete reference in the “Injury Description” at page 7 of the ARD to the nature and conditions of employment. The “Injury Description” was amended to read “the Applicant sustained a lumbar spine injury due to two specific incidents which occurred on 2 March 2018 and 31 May 2018”.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a)    The ARD and attached documents;
(b)    Reply and attached documents, as contained in an Application to Admit Late Documents dated 20 April 2021;
(c)    Application to Admit Late Documents and attached documents dated 16 April 2021, lodged on behalf of the applicant;
(d)    Application to Admit Late Documents and attached documents (including the above Reply) dated 20 April 2021, lodged on behalf of the respondent, and

(e) Application to Admit Late Documents and attached documents dated 4 May 2021, lodged at the arbitration on behalf of the applicant.

Oral Evidence

There was no application to take oral evidence or to cross examine the applicant.

Evidence

The applicant’s statements

The applicant provided statements dated 18 May 2020 and 26 February 2021.
In his statement dated 18 May 2020, the applicant recounted the circumstances of two injuries at work for the respondent. He said that on 2 March 2018 he hurt his back while he was collecting rubbish in the playground. He had an MRI scan on 26 March 2018. He had time off work and in April 2018 he started a staged return to work performing light duties and he then eventually upgraded to perform full duties again.
He said that on 31 May 2018 while he was digging out a stump using a mattock, shovel and crowbar he had further back pain and pain down his left leg for the first time. He was referred to Prof Jaeger and had block injections as referred by Prof Jaeger but his pain continued to worsen. He underwent decompression surgery on his lumbar spine on 1 November 2018 by Prof Jaeger. He was referred by Prof Jaeger to Dr Stackpool for a PRP injection which did not work.
The applicant stated that he still has a high level of pain and restriction in his back and he continues to have pain down both his legs and a numb sensation in the front of his right leg.
In his statement dated 26 February 2021, the applicant stated that his back injury has continued to cause him significant pain and distress. He said that he was reliant on medication and his back pain and restriction remain significant even with the use of medication. He said that he has continuing back pain and right leg pain down to his ankle and sometimes his back also spasms. He said his sleep pattern is very disturbed.
The applicant stated that Dr Cherukuri has recommended that he has further surgery in the form of a spinal fusion. The applicant stated that he has looked into the potential pros and cons of this surgery and he wants to have the surgery because no other treatment undertaken has been of benefit to him. He said that he cannot continue to live like this without trying a further treatment option and he feels that this is the treatment option that remains.

Professor Jaeger

In his initial treatment report of 4 May 2018, Prof Jaeger, neurosurgeon, reviewed the lumbar spine MRI scan of 26 March 2018 which “showed some multilevel, very mild, age-appropriate changes” and that “the culprit is most likely an L3/4 more left-sided acute disc herniation”. Prof Jaeger was of the opinion that there was not much else that he could do for the applicant because of his very good recovery with conservative management.
Prof Jaeger in his report of 3 July 2018 noted that the applicant was recovering very well from the initial injury on 2 March 2018 when on 31 May 2018 he suffered a severe aggravation of pain and an acute onset a very severe left back pain and left sciatica pain when he was attempting to remove a tree stump at his workplace. The applicant described moderate – severe sciatica pain in the left leg following which was mainly an L5 distribution and on examination the pain distribution mainly corresponded to L5 territory.
In his reports of 7 August 2018 (2), Prof Jaeger reported that the applicant’s presentation is compatible with sciatica pain from a right L5 nerve root compression from an L4/5 lateral recess stenosis, with the possibility of a gluteal muscle tear/hamstring muscle tear.
Prof Jaeger noted that the applicant was still suffering from considerable pain and walks with a limp. Prof Jaeger felt that it was necessary to exclude a hamstring muscle tear/gluteal muscle tear as the cause of pain and should it be clear that it is a lumbar spine issue then it would be necessary to consider a left L4/5 microdiscectomy.
In his report of 26 February 2019, Prof Jaeger reported that the applicant underwent a two level microsurgical lumbar nerve root decompression on 1 November 2018. He noted that “this was after a meticulous preoperative workup, suggesting that he suffered from a symptomatic lumbar nerve root compression issue”. He noted that there had not been any improvement since the operation and the lack of improvement so far “makes me concerned that we are looking at a permanent condition”. Prof Jaeger referred the applicant to
Dr Stackpool, orthopaedic surgeon, in relation to the possible hamstring/gluteal issue.
Prof Jaeger in his follow-up treatment report of 31 May 2019 noted that the applicant reported that his symptoms of left back, gluteal and thigh pain have not changed much and that “he also describes a more prominent component of right lower back pain today”. He noted the treatment and opinion of Dr Stackpool and recommended EMG of the left lower limb for any comparison changes, as well as an up-to-date bone scan.
In his report of 27 July 2019 to the treating GP, Prof Jaeger noted the recent nerve conduction study and EMG of the left lower limb showed significant improvement when compared to the preoperative EMG in September 2018. He reported that a bone scan only showed relatively mild changes. He concluded that “overall, I am unable to see that I have further surgical options available” and that he should seek a pain management opinion and he referred the applicant to Dr Ferris.
In his report of 27 July 2019 to Dr Ferris, Prof Jaeger noted that whilst the applicant had some benefit from the surgery of 1 November 2018 he still suffered a significant amount of pain that prevented him from returning to work. He noted “a recent EMG which showed significant improvement compared to his pre-op study”. He also noted “an MRI which in my opinion does not show any obvious or ongoing lumbar nerve root compression” and “a bone scan did not add much”.

Dr Stackpool

Dr Stackpool, orthopaedic surgeon, in his report of 22 May 2019, after treatment and no significant improvement, concluded that “the bulk of his pain is more central than in the proximal hamstring region and I suspect some ongoing lower back issues may be the main driver of his current symptoms.”

Dr Cherukuri

Dr Cherukuri, neurosurgeon, provided reports dated 4 September 2020, 24 November 2020 and 23 December 2020.
In his report of 4 September 2020, Dr Cherukuri noted a history of severe lower back pain and pain radiating into both legs, the right more than the left, and weakness in the legs, the right more than the left and occasional paraesthesia in the left leg. Dr Cherukuri noted that he does have problems in the left leg but not as severe with pain radiating up to the calf. He noted the history of two work-related injuries, the first when he was picking up garbage and the second when he was digging up a tree stump.
Dr Cherukuri noted that he had left sided sciatica and had undergone surgery in 2018. About one to two months later he developed right leg pain which has progressively got worse, “particularly the last year”.
Dr Cherukuri noted that:
“Initially the symptoms were noted in the thighs and later radiated all the way to the ankles. The pain in the left leg radiates up to the calf. He has occasional paraesthesia in the left leg. He has weakness in both legs, right more than the left. Sitting is extremely difficult and he had difficulty in standing up from sitting position and initial walking is extremely difficult. His medications are predominantly for pain; Palexia, Naprosen, Panadol, Panadeine forte, Diazepam and Lyrica. He had about 60 sessions of physio and uses TENS machine. He had also undergone PRP treatment, cortisone injections. His sleep is extremely disturbed, so as going to the toilet.”

On examination, it was noted that gait is antalgic on the right, lumbar spine flexion reduced with severe pain and lateral flexions and rotations were also severely painful as was straight leg raising test with restrictions and associated severe pain. He noted bilateral L2 and L3 altered sensation, more prominent on the right and “on the right side the altered sensation extends all the way to the S3 region, while on the left side the L5 sensation is perceived slightly better”.
In his report of 24 November 2020, Dr Cherukuri noted the applicant still had severe pain and walked with severely antalgic gait with severe restrictions of activities of daily living. He noted that “EMG/nerve conduction studies… shows denervation predominantly in the right L4/5 supplied muscles”.
He continued:
“Review of the scans and x-rays confirm that there is right-sided L4/5 and L5/S1 foraminal stenosis more than the left side which corresponds to his side and site of pain, although reported left is worse.
In addition he has significant axial pain. Hence given that he had extensive trial of conservative measures and Mr Stewart is at the end of his tether and wants something definitive done about his symptoms which are ongoing for 2 years, the only option left is surgery. Given predominantly axial pain in addition to radicular pain which is from the radiculopathy, we will have to consider decompression and fusion at L4/5 and L5/S1.”

Dr Cherukuri requested approval from the insurer “to proceed with redo bilateral L4/5 and L5/S1 laminectomy, foraminotomy, rhizolysis, posterior lumbar interbody and posterolateral fusion”.
In his report of 23 December 2020, responding to questions put by the insurer, Dr Cherukuri stated:
“I do not have the request for surgery by Dr Jaegar or the operation report. However, it appears Mr Stewart has undergone decompression at L3/4 and L4/5, which unfortunately did not improve his symptoms. Hence surgery to decompress and fusion is considered in view of significant axial pain and radiculopathy.
To address persistent symptoms.”

In response to a question regarding Dr Davies report of 12 February 2020 in terms of recommended treatment and prognosis, Dr Cherukuri replied:
“Further nonsurgical treatment can be tried, however, looking at extensive medical management for more than 2 years Mr Stewart has undergone, it is difficult to forsee there will be any improvement.”

In response to a question regarding whether the applicant had exhausted all conservative treatment before undertaking his surgical intervention, and to list the various treatment that should be trialled first, Dr Cherukuri stated:
“Had 60 physio sessions, had injections, PRP treatment, TENS machine.
Given all above, unlikely further nonoperative treatment will benefit.”

Dr Bodel

Dr Bodel, orthopaedic surgeon qualified by the applicant, provided reports dated 28 October 2019, 7 July 2020 and 18 February 2021.
In his report dated 28 October 2019, noted the history two injuries at work and recorded that following the injury on 31 May 2018 the applicant had further back pain and for the first time, left leg pain. He noted the MRI scan on 26 March 2018 which showed degenerative disc disease at L4/5 and L5/S1 and block injections by Prof Jaeger which did not help and his pain continued to steadily deteriorate. Dr Bodel noted that eventually the applicant had decompressive surgery on 1 November 2018. He also noted that post operatively the back and left leg pain again improved but he did have some right leg pain. Dr Bodel noted current complaints as continuing back pain and constant dull aching pain aggravated by activities and leg pain in both legs, the left leg down to the thigh being worse than the right buttock and thigh pain.
On examination Dr Bodel noted positive nerve root tension signs on the left-hand side and the left calf was 1.4 cm smaller than the right. Hamstring reflexes were diminished on the left-hand side and there was a witness of extension of the left great toe with a sensory loss in the L5 distribution on the left. Dr Bodel noted clinical signs of persisting radiculopathy in the L5 nerve root on the left. Dr Bodel noted the opinion of Dr Davies that there is some nerve root irritability in the left leg involving the L4/5 distribution and at that time he felt that surgery and Dr Bodel agreed with that.
Dr Bodel diagnosed a probable disc injury at L4/5 and aggravation, acceleration, exacerbation and deterioration of an underlying pre-existing and previously asymptomatic degenerative condition involving the L4/5 disc spaces and the facet joints. He regarded the applicant’s prognosis as guarded as he had a less than satisfactory outcome following surgery.
In his supplementary report dated 7 July 2020, reviewed the lumbar spine MRI scan dated 14 January 2019 and the bone scan dated 6 June 2019 and was of the opinion that the pathology showed degenerative changes involving the facet joints in the lower lumbar segments at L3/4 and L4/5 and some foraminal stenosis bilaterally at L4/5 and L5/S1 and that these changes were largely constitutional and part of the applicant’s genetic make up. He was relevantly of the opinion that the episode of 31 May 2018 caused significant aggravation, acceleration, exacerbation and deterioration of that disease process into the increasing symptoms in that area associated with the work injury.
Dr Bodel in his report of 8 February 2021, noted the applicant’s current complaints as continuing pain in the lower part of the back, being a dull aching pain radiating to both legs and at the moment the right is worse than the left.
Dr Bodel recorded that:
“Since I saw him last, he has now been assessed by Dr Ravi Kumar Cherukuri, another Neurosurgeon who has offered him a spinal fusion at the L4/5 level. Mr Stewart has done his research and he is keen to proceed with the surgery although I understand that the Insurer has denied liability for the cost of this. He is well aware of the potential pros and cons of this surgical undertaking and he is wanting to take the risk because no other treatment undertaken so far has been of any benefit.”

Dr Bodel on examination noted that straight leg raising was again restricted on the left-hand side as previously noted. He could not test the reflexes as the consultation was by way of telehealth (video) but noted that when he saw the applicant last on 28 October 2019 there was weakness of extension of the left great toe consistent with an L5 nerve root irritability.
Dr Bodel was of the opinion that “this is consistent with the area of disc injury identified by
Dr Cherukuri for which he has now recommended the fusion”. He noted that “Dr Cherukuri is of the view that the fusion has the potential to assist and has recommended that as a treatment option”.
Dr Bodel also noted that:
“his request is for revision surgery of "bilateral L4/5 and LS/S1 laminectomy, foraminotomy, rhizolysis and posterior lumbar interbody and posterolateral fusion". It is the last element which the Insurer has great difficulty with.”

Dr Bodel noted that the applicant had been now offered a fusion and was keen to proceed. He was of the opinion that the proposed surgery “is a treatment protocol to be considered in this circumstance and it is a reasonably necessary circumstance when other treatment protocols have failed” and “the offer of treatment is appropriate for the management of this injury”.

Dr Davies

Dr Davies, neurosurgeon qualified by the respondent, provided reports dated 15 August 2018, 29 August 2018, 10 October 2018, 23 August 2019, 12 February 2020, 6 August 2020 and 26 February 2021.
Dr Davies in his report of 15 August 2018 noted that the last letter that he had of Prof Jaeger was 3 July 2018 and that Dr Davies did not have any more recent letters from Prof Jaeger after that. Dr Davies referred to a lumbar spine MRI of 26 March 2018 and noted that there are spondylitic changes at multiple levels with more marked disc degeneration at L5/S1, a moderate central disc protrusion L3/4, slightly more to the left side, and a lesser degree of disc bulging at L2/3 and L4/5 and degenerative facet joint disease on the right side at L4/5. He referred to a bone scan on 8 June 2018 and noted increased uptake in the right L4/5 facet joint and also some increased discovertebral uptake at that level. Dr Davies also referred to a lumbar spine MRI dated 9 July 2018 and noted spondylitic changes throughout the lumbar spine, more marked at L4/5 and L5/S1 and the disc protrusion at L3/4 was smaller on the scan. He noted there is degenerative facet joint disease on the right sided L4/5 and moderate narrowing of the exit foramen at that level and no clear evidence of nerve root impingement.

In the report of 15 August 2018, Dr Davies found fear avoidance and pain behaviour and some inconsistency in strength testing and reports of widespread sensory impairment and there were no objective findings of radiculopathy. He did not believe that “pathology at L3/4 would reasonably explain his current symptoms and there is no clear correlation between his radiological findings and his symptoms and clinical findings”. He diagnosed a lumbar strain injury with probable lumbar facet joint strain or sacroiliac joint strain “with somatic pain radiating into the left lower limb”.
In his supplementary report of 29 August 2018, Dr Davies provided a response to the insurer’s enquiries regarding duration of aggravation, prognosis and return to light duties.
Subsequently, in his report of 10 October 2018 Dr Davies modified his opinion somewhat in light of further reporting by Prof Jaeger by noting the pre-existing degeneration but considered that “his back and leg pain developed as a consequence of the work injury that occurred on 31 May 2018” and “the need for surgery has developed as a consequence of the workplace incident that occurred on 31 May 2018”. He reviewed Prof Jaeger’s recent correspondence in relation to surgery and noted “the electrophysiological studies show findings of left L4/5 radiculopathy”. He was of the view that the applicant had “a reasonable course of conservative therapy” and there had been “no improvement with either a peri-radicular steroid injection or a cortisone injection into the left gluteal area and no improvement with physiotherapy” and that “the EMG findings indicate left L4/5 radiculopathy, which will not improve with conservative therapy.”
In his report of 23 August 2019, Dr Davies reported that “the lower limb symptoms he describes are suggestive of possible radicular pathology but there is no objective evidence of radiculopathy” and he could not demonstrate sciatic nerve irritation in the buttock as an alternative explanation. He noted that “his lower limb symptoms might represent somatic referred pain”.
Dr Davies further noted in his report of 23 August 2019 that the applicant “reports constant pain in the lower back worse on the right side” and “he gets pain radiating down the back of the left lower limb to the ankle and down the back of the right thigh when he sits”. He noted that since last review, the applicant had had lumbar spine surgery and a number of injection procedures and “none of these forms of treatment has resulted in any sustained improvement in his condition”. He had recommended diagnostic facet blocks but these appeared not to have been done.
In his report dated 12 February 2020, Dr Davies re-examined the applicant. He noted the referral to Dr Ferris, pain specialist, who recommended diagnostic blocks of the facet joints and to consider whether radiofrequency ablation of those joints was likely to provide useful long-term benefit. Dr Davies noted that the applicant said he did some research on the Internet regarding injections and decided not to proceed with them. He was referred by his GP to Dr Bashford, rehabilitation and pain specialist, but he does not yet have an appointment. Dr Davies also noted that he has recently commenced some further physiotherapy and his physiotherapist has recommended the use of a TENS machine.
Dr Davies recorded that the applicant reported constant pain across the lower back and pain down the right leg and also pain down the back of the left leg. He noted that the applicant’s pain was reported to be worse with bending, twisting and with walking, standing or sitting for more than about half an hour. He noted morning and evening pain medication and other occasional pain medication and with some benefit although with drowsiness. He noted that he can wash a few dishes but otherwise does virtually nothing around the home and he was doing a little bit of vacuuming when last seen but he cannot manage that anymore and is not able to do chores or activities around the house and garden. The applicant reported difficulty getting in and out of bed because of the pain and he can only tolerate driving for short trips and his sleep is poor because of the pain.
Dr Davies noted in respect of the post operative MRI scan there was multilevel spondylitic changes in the lumbar spine, more marked at L4/5 and L5/S1, a disc protrusion at L3/4 and also evidence of granulation tissue at the surgical site and in the soft tissues adjacent to the spine but there was no evidence of scarring around nerve roots. He noted that a bone scan performed in June 2019 showed evidence of facet joint arthritis on the left side L3/4, on the right sided L4/5 and in the right sacroiliac joint.
On examination, Dr Davies reported limitation in flexion and extension secondary to pain, straight leg raising limited by pain but no reports of radicular symptoms and report of widespread impairment of sensation in both lower limbs that did not fit a dermatomal distribution.
Dr Davies was of the opinion that the applicant did not have evidence of persistent radiculopathy following surgery and examination showed no neural tension signs, global weakness in the left lower limb, no reflex changes and widespread sensory impairment that did not fit a dermatomal distribution he did not satisfy the WorkCover criteria for persisting radiculopathy.
In response to the question as to whether any further treatment is required, Dr Davies stated that it was appropriate that the applicant had been referred to a pain specialist regarding further possible treatment for his pain and that it was reasonable to undertake some diagnostic facet blocks and other treatment that could be considered included a spinal cord stimulator. As to prognosis, Dr Davies was of the opinion that the prognosis is for no change in his condition in the foreseeable future without further treatment.
Dr Davies provided a short supplementary report dated 6 August 2020 in respect of the contributions of the incidents at work and the nature and conditions of his employment to his condition.
Dr Davies in his report of 26 February 2021 was of the opinion that there was a poor prognosis. He was of the opinion that the radiology did not provide objective findings in relation to the right lower limb symptoms. However, consistent with his earlier opinion, the left lower limb symptoms he thought could be explained by the objective imaging findings. He was of the view that the applicant has developed chronic pain affecting the back and lower limbs. Dr Davies thought it was unlikely there would be much improvement from the recommended surgery. He was of the opinion that the surgery would be unlikely to lead to any improvement in the lower limb symptoms, which are more extensive than can be explained on the basis of pathology at L4/5 and L5/S1 and no findings that would explain the right lower limb symptoms, so surgery would be unlikely to make any difference to the right leg. When considered against the possibility of an aggravation of disk changes higher up in the lumbar spine, possibly leading to the need for further surgery higher up, he was of the opinion that there was a poor prognosis for improvement in his condition was surgery.
However, Dr Davies was also of the opinion that the proposed surgery may lead to some easing of the applicant’s back pain. In relation to the left leg symptoms, Dr Davies thought that these were more than could be explained by pathology at L4/5 and L5/S1, although he had previously accepted in an earlier report that there was left-sided radiculopathy for which decompression surgery was warranted at that time. Dr Davies has referred to additional investigation radiology taken after the decompression surgery in reaching this modified opinion.

Reasons and findings

The issue in dispute is whether the surgery proposed by Dr Cherukuri is reasonably necessary.
In summary, the respondent’s submission is that the applicant’s medical evidence has not explained what this surgical procedure is intended to achieve and how the surgery may ameliorate the applicant’s symptoms, nor was there an explanation of the nature of the surgery other than the information contained within the request for the approval of the surgery dated 24 November 2020.
The opinions of Dr Cherukuri and Dr Bodel are concise in relation to the proposed surgery. However, both opinions have been provided following, and in consideration of, a significant history and background of injury, symptoms, investigations and treatment. One aspect of this background is the consideration of whether or not there is radiculopathy. In this regard there is a divergence of opinion between Dr Cherukuri, Dr Bodel and Dr Davies.
In my view, the surgery proposed by Dr Cherukuri is for the treatment of the applicant’s symptoms of axial pain and radicular pain arising from radiculopathy. The diagnosis of radicular symptoms is supported by Dr Bodel, who had previously diagnosed in October 2019 persisting radiculopathy in the L5 nerve root on the left and in the 2021 report noted the L5 nerve root irritability. Dr Cherukuri noted symptoms and signs of radiculopathy in the context of “right sided L4/5 and L5/S1 foraminal stenosis more than the left side”. It was
Dr Cherukuri’s opinion in his report of 23 December 2020 that the proposed surgery was to address persistent symptoms in view of significant axial pain and radiculopathy.
In my view, the reports of Dr Cherukuri and Dr Bodel when read as a whole and with reference to the background of treatment provided by Prof Jaeger, do provide an explanation as to the nature of the proposed surgery and the purpose of that surgery. Given the well documented extensive background of treatment and persisting symptoms, in my view the explanations provided by Dr Cherukuri and Dr Bodel, while concise, are sufficient in this case[1].
[1] Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) at [71] with reference to Adler v Australian Securities and Investments Commission [2003] NSWCA 131; 79 FLR 1 at [631].
In my view, it is not necessary for Dr Cherukuri and Dr Bodel to spell out the symptoms to be ameliorated, other than what has already been provided. Almost the entire history of treatment has been directed towards the amelioration of back pain and radicular pain.
Prof Jaeger treated the applicant in relation to back and left radicular pain. The surgery proposed by Dr Cherukuri is another element of treatment in respect of the goal of the amelioration of back and also radicular pain, although with reference to both legs.
Neither Dr Cherukuri nor Dr Bodel were required to “offer chapter and verse in support of every opinion”[2]. Dr Bodel was of the opinion “Dr Cherukuri is of the view that the fusion has the potential to assist”. I infer from the opinion expressed by Dr Cherukuri in his reports dated 24 November 2020 and 23 December 2020 that the purpose of the proposed surgery is to ameliorate the symptoms of back pain and radicular pain, that is, “to address persisting symptoms”.
[2] Diab at [71] with reference to Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; 117 FCR 189 at [89].
As to the surgical steps being taken to ameliorate symptoms, it is not necessary for
Dr Cherukuri and Dr Bodel to spell out such steps in greater detail than has been provided. In my view, the identification of the proposed surgery by Dr Cherukuri is sufficient. The opinions of Dr Bodel and Dr Davies were both premised on an understanding of the surgery proposed by Dr Cherukuri. Dr Davies did not take issue with the nature of the proposed surgery, rather he was of the opinion that the proposed surgery was unlikely to be of benefit to the applicant.
The applicant in his statement of 26 February 2021 referred only to back and right leg pain.
However, the reports of both Dr Bodel dated 8 February 2021 and Dr Davies dated 26 February 2021 referred to pain in both lower limbs, the right currently worse than the left, and the treating report of Dr Cherukuri also noted pain in both lower limbs. I accept the history recorded by Dr Bodel, Dr Davies and Dr Cherukuri in relation to current pain in both limbs, right worse than the left, rather than the applicant’s statement, which in my view is inaccurate with respect to omitting reference to left leg pain having regard to the history recorded by the doctors.
Dr Bodel thought that left L5 nerve root irritability was consistent with the area of disc injury identified by Dr Cherukuri for which fusion was recommended. Dr Cherukuri thought that the L4/5 and L5/1 foraminal stenosis was right sided more than the left side, although reported left side is worse. I prefer the opinions of Dr Bodel and Dr Cherukuri that the proposed surgery is for treatment to alleviate symptoms in the lower back and for radicular symptoms. Dr Bodel was of the opinion that the proposed surgery by Dr Cherukuri was for treatment in relation to left L5 nerve root irritability consistent with the area of disk injury identified by
Dr Cherukuri.
Dr Davies thought that there was absent a clear surgical cause for the applicant’s ongoing symptoms and so the likely outcome of surgery was poor. However, I prefer the view of
Dr Bodel that signs and symptoms were consistent with an L5 nerve root irritability and this was consistent with the area of disc injury identified by Dr Cherukuri for which fusion surgery is recommended. In my view, this is a sufficiently clear surgical cause for the applicant’s symptoms and it is consistent with Dr Cherukuri’s view that the only option to treat the applicant’s axial pain and radicular pain is the proposed surgery.
As noted above, Dr Davies was of the opinion that the proposed surgery may be of some benefit in respect of the applicant’s back pain. Dr Davies, in addition to opining as to it being unlikely that the surgery would lead to improvement in the leg pain, pointed also to the risk associated with the surgery in respect of possible later damage to discs higher up the lumbar spine.
However, in my view the possibility of later disc damage further up the spine is not determinative of the potential effectiveness of the proposed surgery. This is the risk of a less than ideal result and should be considered in light of the potential for easing of the back pain and also of the radicular pain. The evidence is that the applicant experiences severe back pain and severe restriction of activities of daily living. As was said in Diab, “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”[3]. It is also a matter for discussion of the risks of surgery between the treating specialist and the applicant. The applicant has stated that he has “looked into the potential pros and cons” of the proposed surgery and wishes to proceed with it. The absence, in the evidence before me, of a notation by the treating surgeon of the risks of surgery, insofar as it may or may not have gone towards part of an explanation of the proposed surgery is also not determinative. I am not persuaded this is an issue upon which I should place sufficient weight to outweigh consideration of the severity of the applicant’s back pain and radicular pain and the severe restrictions on the applicant’s activities of daily living.
[3] At [89]
The respondent also submitted that the possibility of future two level fusion surgery was not considered or predicted by Dr Davies in his report as late as 6 August 2020 and it could not be said that he has arrived at his view from an ex post facto position about surgery being in dispute. It was submitted that Dr Davies simply did not contemplate further surgery as being relevant. However, in my view Dr Davies in his report of 6 August 2020, in response to the question of whether any further treatment is required, did not provide an exhaustive list of treatment options. His opinion was based upon the history that the applicant had been referred to a pain specialist regarding further possible treatment for his pain. Dr Davies noted other treatment that could be considered included a spinal cord stimulator. Dr Davies thought that there may be some improvement in his condition following further treatment such as treatment he had suggested previously in his report.
A similar situation existed in 2018 with the recommendation by Prof Jaeger for the decompression surgery. Dr Davies examined the applicant and provided his report of 15 August 2018 in which he was also asked his opinion as to further surgery. Similarly,
Dr Davies in noting the treatment of Prof Jaeger, did not raise the possibility of surgery. At the time of Dr Davies report of 15 August 2018, Prof Jaeger had not yet recommended surgery. It is in my view equally possible to say that on both occasions Dr Davies, quite properly, did not raise the possibility of future surgery when at the time it had not been raised by the treating surgeon. I do not accept the submission by the respondent.
In respect of the recommendation for surgery by Dr Cherukuri, as noted above, he was of the opinion that given the extensive trial of conservative measures over the previous two years, and the axial pain and radicular pain, still severe, the only option left is surgery. Dr Cherukuri was of the opinion that given the worsening and severe symptoms it was “less likely” that the applicant’s symptoms and function would improve further if he did not undergo the proposed surgical procedure.
Dr Cherukuri was also of the opinion that it was unlikely that further nonoperative treatment would benefit given that he had previously had 60 physiotherapy sessions, injections, PRP treatment and TENS machine. He was of the opinion that while further nonsurgical treatment could be tried, “looking at extensive medical management for more than two years
Mr Stewart has undergone, it is difficult to foresee there will be any improvement”.
Dr Cherukuri, in responding to the insurer’s request for justification for surgery “with acknowledgement that Dr Davies (IME) had recommended in his report on 12/2/2020 for
Mr Stewart to undergo further pain management treatment such as facet blocks, RF ablation and/or spinal cord stimulator”, referred to his opinion in the paragraph above of these reasons and added “I would reserve spinal cord stimulator if fusion has been ineffective”.
In my view, Dr Cherukuri has provided sufficient explanation for the proposed surgery, with support from Dr Bodel.
In my view, the proposed surgery recommended by Dr Cherukuri and the treatment pathway recommended by Dr Davies are not necessarily mutually exclusive. Dr Cherukuri thought that trial of a spinal stimulator could be undertaken following fusion surgery if it is ineffective.
A range of different treatments may be regarded as “reasonably necessary”, and it is only necessary for the applicant to establish that the proposed surgery is one of those treatments.[4] In this case, the proposed surgery is on the evidence one of a range of treatments that includes facet blocks and possibly more extensive pain management. On the evidence, it is not necessarily the case that the proposed surgery should proceed after all other conservative measures have been exhausted.
[4] Diab at [86]
Dr Cherukuri did not agree with this proposition implied by the insurer in its enquiry. In circumstances where the applicant has been experiencing severe back pain, axial pain and radicular pain and severe restrictions in the activities of daily living, as recorded by
Dr Cherukuri, and extensive conservative treatment had been trialled over the course of two years, Dr Cherukuri did not regard facet blocks and other pain management as being an option, even if such treatment was regarded as being a preferred treatment by Dr Davies in the range of treatments available. I prefer the approach taken by Dr Cherukuri in this regard.
I find that the surgery proposed by Dr Cherukuri is reasonably necessary. Having regard to the matters noted in Diab[5], with reference to the authority Rose v Health Commission (NSW)[6] (Rose), which themselves are not expressed to be an exhaustive list, in my view the proposed surgery is appropriate. As noted by Dr Bodel, the proposed surgery is a treatment protocol to be considered in this case. Dr Davies, in noting that the proposed surgery may ease the applicant’s back pain, did not comment about the appropriateness of the surgery, rather his opinion was directed towards the surgery being unlikely to make much difference to the lower limb symptoms and that it was unlikely that there would be much improvement from the surgery recommended.
[5] At [88]
[6] (1986) 2 NSWCCR 32

In relation to the availability of alternative treatment and potential effectiveness, Dr Cherukuri considered the alternative treatment proposals of Dr Davies and was of the opinion that it was difficult to foresee any improvement with further conservative treatment. Dr Bodel was of the opinion that the proposed surgery was a reasonably necessary circumstance, that is as a treatment option, when other treatment protocols had failed. Dr Davies, while acknowledging that the proposed surgery may provide some improvement in the applicant’s back pain, recommended alternative treatments including referral to a pain specialist for facet blocks and a possibility of an intensive multidisciplinary pain management program. I note that the applicant has previously consulted Dr Ferris, pain specialist, and received a recommendation for a facet block, which was declined by the applicant. In my view, there has been extensive treatment pursued, or considered in the case of a facet block, and in the view of Dr Bodel other treatment protocols have failed. This in my view gives weight to Dr Cherukuri’s view that on the history of substantial treatment over the past two years that has not been successful, with continuing severe pain and restrictions, it is difficult to see that further conservative treatment would be of benefit. I prefer the opinions of Dr Cherukuri and
Dr Bodel to that of Dr Davies.
Although the respondent noted the expense of the proposed surgery, being $24,024.40 for the surgeon’s fee, plus fees for the surgical assistant and anaesthetist plus out-of-pocket expenses for hospitalisation, it was not submitted that the cost of the proposed surgery itself was unreasonable.
In relation to potential effectiveness of the proposed surgery, Dr Bodel noted that
Dr Cherukuri was of the view that the fusion has the potential to assist. Dr Bodel was of the opinion that the proposed surgery is appropriate for the management of the injury.
Dr Cherukuri was of the opinion that the only available option for the treatment of the axial pain and radicular pain was the proposed surgery in order to address these persistent symptoms. Dr Davies was of the opinion that he did not believe that the proposed surgery would lead to any significant improvement in the applicant’s condition and it may lead to further problems higher up in the spine over time. As noted above, Dr Davies in reaching this view also considered that the proposed surgery may provide some improvement in his back pain and may lead to some easing of the back pain.
The applicant submitted that decisions such as Broadspectrum Australia Pty Ltd v Gunaratnam[7] (Gunaratnam) and Broadspectrum Australia Pty Ltd v Skiadas[8] (Skiadas), considered similar issues in relation to potential effectiveness and that it was a low threshold for the applicant to show that there is a chance that the proposed treatment will alleviate the back symptoms.
[7] [2019] NSWWCCPD 36
[8] [2019] NSWWCCPD 31
In Gunaratnam[9], it was stated that:
“The appellant asserts that there ought to be at least a reasonable prospect of a good outcome. Such an assertion is not consistent with the approach taken by Burke CCJ and Roche DP in [Rose and Diab]. In a consideration of the effectiveness of the treatment, it is sufficient if the proposed treatment has the potential to be effective. As observed by the Senior Arbitrator, the treatment does not have to have the potential to totally alleviate the effects of the injury. Dr Hsu assessed the prospect of some benefit in alleviating the respondent’s symptoms would be likely to be in the order of 70–80%. Dr Hsu also factored into his opinion that all options of conservative treatment had not resulted in any improvement of the respondent’s symptoms, and that the surgery may improve her overall wellbeing.”
[9] At [101]

In Skiadas[10], it was stated that:
“Dr Al Khawaja, consistent with the practice of professional surgeons, could give no guarantee about the result of the surgery. This is unremarkable. But he still was of the opinion that the type of surgery being proposed could help her. Dr Patrick considered the surgery to be an “extremely useful approach to improve stability with significant overall improved outcome” as referred to above. These opinions, without using the phrase “potentially effective”, are in my view saying precisely that. Namely that the surgery could potentially be effective for Ms Skiadas, but no guarantees could be given.
Even Dr Harrington thought that there was a low chance of improving her symptoms, 10%, and thus would not recommend proceeding. Dr Harrington would not proceed also on the basis of the lack of objective signs on the films or CT scan. But
[10] At [95-96]
Dr Harrington’s 10% chance of success is in any event suggesting that the proposed procedure is potentially effective, albeit he gives it a low prospect of success.”

In this case, there is no assessment of potential benefit in percentage terms, but in my view this is not necessary. What is necessary is an assessment of the prospect of some benefit in alleviating the applicant’s symptoms. The prospect of some benefit in alleviating the applicant’s symptoms may only be a low chance, although this will depend upon the case.
Dr Bodel regarded the approach taken by Dr Cherukuri as being based upon the latter’s view that it has a potential to assist. Dr Bodel did not expressly provide a view as to potential effectiveness, but did consider that the proposed surgery is appropriate for the management of the injury. Dr Davies, as noted above, considered that the proposed surgery may provide some improvement in the applicant’s back pain and lead to some easing of the back pain. He thought it was unlikely that there would be much improvement from the proposed surgery. When considered with his comments regarding the possibility of improvement in back pain, in my view this opinion is not inconsistent with an assessment that there is some potential for alleviating symptoms, somewhat higher in respect of the back, but overall low having regard to the symptoms in the legs. In my view, the proposed surgery has the potential to be effective as it has a prospect of some benefit in alleviating the applicant’s symptoms, particularly in the back and also in respect of the radicular symptoms, particularly on the left, having regard to Dr Cherukuri’s view that the surgery was proposed to address the symptoms of axial and radicular pain, and having regard to Dr Davies view that there may be some improvement in the applicant’s back pain.
In terms of the place of the proposed surgery in “the usual medical armoury of treatments for the particular condition”[11], Dr Bodel regarded the proposed surgery as a treatment protocol to be considered in this case and that it was appropriate for the management of this injury. The respondent did not dispute that the proposed surgery was part of the usual treatment protocols for the applicant’s condition. Dr Davies did not provide this opinion, as his opinion was directed towards there being a poor prognosis and that it was unlikely that there would be much improvement from the recommended surgery. Dr Cherukuri was of the opinion that the only option left was the proposed surgery for the treatment of the applicant’s symptoms.
[11] Rose at (47)
I find that the surgery proposed by Dr Cherukuri, being re-do bilateral L4/5 and L5/S1 laminectomy, foraminotomy, rhizolysis, posterior lumber interbody and posterolateral fusion is reasonably necessary as a result of the injuries on 2 March 2018 and 31 May 2018.

[2021] NSWPIC 172

7 June 2021