Strickland v Woolworths Group Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Strickland v Woolworths Group Ltd [2024] NSWPIC 645
APPLICANT:	Chloe Strickland
RESPONDENT:	Woolworths Group Limited
MEMBER:	Karen Garner
DATE OF DECISION:	21 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; accepted lower back injury; whether L5/S1 anterior lumbar interbody spinal fusion surgery is reasonably necessary as a result of the accepted lower back injury; Held – L5/S1 anterior lumbar interbody spinal fusion surgery is reasonably necessary as a result of the accepted lower back injury pursuant to section 60; respondent to pay the costs of and incidental to the surgery.
DETERMINATIONS MADE:	The Commission determines: 1. The L5/S1 anterior lumbar interbody spinal fusion surgery requested by Dr Brian Hsu is reasonably necessary as a result of the accepted lumbar spine injury with a date of injury of 18 June 2021. The Commission orders: 2. The respondent to pay, in accordance with s 60 of the Workers Compensation Act 1987, the costs of and incidental to L5/S1 anterior lumbar interbody spinal fusion surgery requested by Dr Brian Hsu.

STATEMENT OF REASONS

BACKGROUND

Chloe Strickland (the applicant) was employed by Woolworths Group Limited (the respondent) as a Bakery Assistant Manager. She is currently 24 years of age.
The respondent accepted a claim that the applicant sustained injury to her lumbar spine arising out of and in the course of her employment, with a date of injury of 18 June 2021 (the accepted injury).
In previous proceedings before the Personal Injury Commission (the Commission), Medical Assessor, Dr Rob Kuru, issued a Medical Assessment Certificate (MAC) dated 7 December 2022, which determined that L5/S1 anterior lumbar interbody spinal fusion surgery requested by Dr Simon Abson, spinal surgeon, was not reasonably necessary as a result of the accepted injury.
On or about 25 February 2024, Dr Brian Hsu, orthopaedic surgeon, requested to perform L5/S1 anterior lumbar interbody spinal fusion surgery (the requested surgery). The applicant sought medical and related expenses in relation to the requested surgery, pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
The respondent’s insurer declined liability for the requested surgery on grounds that it is not reasonably necessary as a result of the accepted injury, pursuant to ss 59 and 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

These proceedings were initiated by an Application to Resolve a Dispute (Application), filed on 13 August 2024. The respondent filed a Reply (Reply) on 3 September 2024.
At a conciliation and arbitration hearing before me on 24 October 2024, Mr Ross Hanrahan, counsel, appeared for the applicant, instructed by McDonnell Schroeder Solicitors & Conveyancers. Mr Brendan Jones, counsel, appeared for the respondent, instructed by BBW Lawyers.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the requested surgery is reasonably necessary as a result of the accepted injury pursuant to ss 59 and 60 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application and attached documents;
(b)    the Reply and attached documents;
(c)    Application to Admit Late Documents (AALD) dated 16 October 2024, filed by the applicant, and
(d)    AALD dated 17 October 2024, filed by the respondent.

Oral evidence

There was no application for leave to cross-examine and no oral evidence was given.

EVIDENCE

Lay evidence

Applicant

The applicant gave evidence by way of statement.
The applicant stated that her condition has severely deteriorated since the issue of the MAC on 7 December 2022.
The applicant stated that in April and May 2023, she underwent a pain management program. However, it was ineffective, it did not result in any improvement to her back condition, it took a toll on her mental health and she has continued to take various pain medication.
The applicant stated that on 19 July 2023, she received an updated Injury Management Plan from the insurer.
The applicant stated that on 8 August 2023, her nominated treating doctor, Dr Morgan Mo, provided an updated Certificate of Capacity for the period 7 August 2023 to 4 September 2023 which noted an additional diagnosis of “thoracic spine T8 – 10 bulging disc”. The insurer subsequently declined liability in relation to that diagnosis.
The applicant stated that on 27 January 2024, her treating spinal surgeon, Dr Brian Hsu, recommended that she proceed with spinal fusion surgery and, on 25 February 2024, Dr Hsu requested the insurer approve spinal fusion surgery. However in April 2024, the insurer again declined the request for spinal fusion surgery.
The applicant stated that she now lives with a great degree of pain each day. The applicant stated that she continues to take various pain medication, however she experiences side effects of the medication and her doctors are concerned about the side effects of her taking medication for such a long time.
The applicant stated that the constant pain has caused her to have severe sleep disturbance and she also takes medication to treat sleep disturbance.
The applicant stated that her mental health has declined as a result of being in constant pain for several years. On 21 May 2024, she attended a psychologist who diagnosed severe depression, stress and anxiety. On 26 May 2024, her doctor recommended increase of her antidepressant and anxiety medication due to decline of her mental health.
The applicant stated that she has exhausted all conservative treatment and is now desperate to have the requested surgery.

Medical evidence

The evidence includes various treating and independent medical evidence. There is a substantial history of medical investigations, treatment and reviews which the applicant has undergone since the accepted injury.
On 10 July 2021, an MRI Thoracolumbar Spine was reported to show: no significant disc lesions apart from a central L5-S1 disc bulge and some minor loss of T2 signal; no definite significant thoracic or lumbar pathology; changes suggesting possible Old Scheuermann’s disease in the thoracic spine.
On 12 July 2021, an MRI Thoracolumbar Spine was reported to show: no definite significant thoracic or lumbar pathology; changes suggesting possible Old Scheuermann’s disease in the thoracic spine.
On 30 July 2021, an X-Ray Thoraco/Lumbar Spine was reported to show: preserved alignment of the thoracic and lumbar spine; no loss of height of any vertebral body; L5-S1 neural foramen were not completely visualised but the remaining neural foramina were unremarkable.
The applicant was referred to Dr Simon Abson, spinal surgeon. In a report dated 5 August 2021, Dr Abson stated that the applicant had a history of two months of severe lower back pain with no radicular symptoms, with a diagnosis of lower lumbar pain due to L5/S1 disc degeneration and facet arthropathy. Dr Abson stated that the applicant had taken Voltaren with little effect and had just started seeing a physiotherapist and started on core strengthening. Dr Abson expressed the opinion that surgery had no role for the applicant’s predicament. He said that the applicant should be focusing on core strengthening, which resulted in most patients noticing a 50% reduction over 6 to 12 months. He recommended that the applicant continue with physiotherapy and also add swimming or yoga. Dr Abson recommended that he review the applicant if her pain had not diminished within six months.
The applicant received physiotherapy treatment from Mr Fahim Takbir, physiotherapist. In a report dated 23 August 2021, Mr Takbir stated that he had been reviewing the applicant for eight weeks with minimal change to her low back pain. He stated that an MRI of the lumbar spine indicated Scheuermann’s disease and disc bulges of the lumbar spine. Mr Takbir expressed the opinion that repeated lifting strain at work had caused the applicant’s condition. He stated that the applicant had undergone treatment which included: cortisone injections into her spine; soft tissue massage; mobilisation of her hip and spine; and a home exercise program. Mr Takbir considered that with ongoing treatment the applicant’s lumbar spine condition would be successfully rehabilitated to the extent that she could return to full work duties.
On 18 August 2021 and 26 August 2021, the applicant had CT guided right L5-S1 corticosteroid injections.
In a report dated 22 September 2021, Mr Takbir, physiotherapist, stated that he had been reviewing the applicant for the past 12 weeks with minimal change to her lumbar spine condition. He stated that MRI of the lumbar spine had indicated Scheuermann’s disease and disc bulges of the lumbar spine however Dr Simon Absen had subsequently ruled out the involvement of Scheuermann’s disease in the applicant’s pain condition. Mr Takbir stated that the applicant had recently undergone cortisone injections into both sides of the lumbar spine with no improvement of the pain or movement. He stated that the applicant had undergone treatment which included: cortisone injections into her spine; soft tissue massage; mobilisation of her hip and spine; and a home exercise program. Mr Takbir considered that, with ongoing treatment, the applicant’s lumbar spine condition would be successfully rehabilitated to the extent that she could return to full work duties.
On 23 September 2021, a bone scan was reported to show: no cause of symptoms in the lumbar spine; features of juvenile degenerative disc disease in the thoracic spine.
On 6 October 2021, Dr Abson, spinal surgeon, referred the applicant for exercise physiology treatment, noting that she was still in extreme pain and required some core strengthening and flexibility based exercises.
In a report dated 15 October 2021, Mr Takbir, physiotherapist, stated that he had been reviewing the applicant for the past 18 weeks with minimal change to her lumbar spine condition. Mr Takbir stated that the applicant had recently undergone cortisone injections into both sides of the lumbar spine with no improvement of the pain or movement. He stated that the applicant had undergone treatment which included: cortisone injections into her spine; soft tissue massage; mobilisation of her hip and spine; and a home exercise program. Mr Takbir stated that the applicant should not be at work in any capacity and that her three hours of work were causing continual flare ups of pain. He stated that the applicant’s pain symptoms were getting worse after work. He recommended that she should remain off work until reviewed by the pain specialist. He expressed the opinion that her strength would improve if her back pain was not continually flaring up.
Dr Eddie Price, injury management consultant, provided opinions in relation to management of the applicant’s injury. In a report dated 19 November 2021, Dr Price stated a diagnosis of lower spine myofascial pain syndrome with associated muscle spasm, particularly of the flexor muscles. Dr Price stated that the applicant’s injuries appeared to be soft tissue injuries only and he considered that they should resolve with appropriate therapy. Dr Price stated that the applicant remains in a good deal of chronic pain and in distress, and there has been little response to therapy over the last four months and she required a breakthrough in her pain management. Dr Price stated that the applicant had been appropriately referred to pain management and he recommended multidisciplinary pain management techniques including extensive psychological pain management. Dr Price stated that the applicant had also been appropriately referred to physiotherapy and he recommended multidisciplinary muscle release treatments.
In a report dated 9 December 2021, Dr Abson, spinal surgeon, stated that the applicant was still in significant pain and unable to return to work notwithstanding having undergone physiotherapy. Dr Abson stated that the applicant’s severe pain was unusual at her age and they had run out of options. Dr Abson stated that an MRI showed a black disc at L5/S1. He recommended that she undergo an anaesthetic discogram to give an indication as to whether she should undergo an anterior discectomy and fusion or arthroplasty.
The applicant was referred to Dr John Prickett, specialist pain management physician. In a report dated 9 December 2021, Dr Prickett stated that testing the sacroiliac joint and lumbar facet joints as potential pain drivers did not alter the applicant’s pain experience. He recommended that the applicant continue to be educated on adaptive pain management strategies in the event of a suboptimal outcome. He acknowledged that it was a process of elimination to determine the applicant’s pain drivers and that there was a desire for medical treatments to be as conservative as possible given the applicant’s youthful age. Dr Prickett sought approval for intra disc L5/S1 local anaesthetic. Dr Prickett stated that, if the applicant had a near elimination of her pain with local anaesthetic into the disc then that could offer up surgical options that could help get her a return to work outcome.
The applicant was referred to Mitchell Bowd, accredited exercise physiologist. In a report dated 4 January 2022, Mr Bowd noted that the applicant demonstrated restricted functional tolerances, tenderness and tightness in the lumbar region. Mr Bowd stated that he assessed the applicant to have guarded and fear avoidant behaviours which contributed to her restricted functional tolerances. He expressed the belief that the applicant’s functional tolerances could be improved by an exercise physiology program which involved developing flare-up management strategies, cognitive behavioural therapies and graded functional exercises.
In a report dated 20 January 2022, Dr Prickett, specialist pain management physician, stated that the applicant had an L5/S1 intradiscal local anaesthetic which resulted in a reported drop in pain from 7/10 down to 3/10, which the applicant described as turning a moderately severe pain down to moderate pain.
In a report dated 21 January 2022, Mr Takbir, physiotherapist, stated that the applicant had been suffering severe back pain for the past 7 months with a progressively worsening condition despite treatment. He noted that the applicant underwent a corticosteroid injection to the lumbar spine administered by Dr Prickett on 20 January 2021.
In a report dated 24 January 2022, Dr Abson, spinal surgeon, sought approval for surgical intervention, being an anterior lumbar interbody fusion, on the basis that the applicant had failed medical management for her lumbar spine condition caused by a work injury. Dr Abson stated that the applicant is fit and well who has had several months of ongoing severe pain although she had been very good at attending physiotherapy to try and work with her core strength and had seen a pain specialist. Dr Abson stated that the applicant’s last investigation showed a positive discogram which relieved her pain and was indicative that surgical outcome would be likely to significantly improve the applicant’s symptoms.
In a further report dated 24 January 2022, Dr Abson, spinal surgeon, stated that the applicant was still suffering from severe back pain. Dr Abson stated that an intervention with Dr John Prickett had relieved her pain instantaneously but didn’t last, which was indicative that it was discogenic back pain. Dr Abson stated that the applicant had trialled all medical management which had failed. Dr Abson stated that the applicant would like to proceed with surgical intervention in the form of anterior lumbar interbody fusion.
In a report dated 25 January 2022, Dr Prickett, specialist pain management physician, stated that the applicant reported that there was virtual elimination of her back pain initially after the intradiscal local anaesthetic, but the pain returned to about 60% over a period of four to six hours. Dr Prickett stated that the applicant reported feeling functionally more able to do activities that predictably stir her pain up and she felt that a 60% reduction in symptoms would be more than adequate for her to be able to increase her physical tolerances and get a return to work outcome. Dr Prickett stated that:
“... [The applicant] sensibly tried non-operative medication therapy and interventional therapy and has not had any benefit. She recognises that whatever results she gets from surgery needs to fit into an ongoing pattern of physical and mental self management to minimise the impact of residual symptoms. She has a supportive family and network around her who are motivated to help her get the best outcome and deal with setbacks. She feels emotionally that she is able to cope with whatever result she gets from a surgical intervention. Based on the evidence I have from the interventional procedures and knowing her as she has progressed through an adaptive pain management paradigm, I think she is a reasonable candidate to get the best chance of benefit from the surgical procedure. I would like to review her 8 weeks after the operative intervention to ensure that she feels that she is progressing and address any barriers should they arise. Clearly I warned Chloe that it was not without challenges getting approval within the workers compensation setting given the limited evidence base for spinal fusion surgery in the setting of back pain but I think she is a reasonable candidate. The only other alternative therapy that could be considered is a trial of advanced neuromodulation which is a trailable, reversible technology but I think given the result of her diagnostic test I think it is not unreasonable to consider surgery in the first instance for such a young person. Neuromodulation would be potentially more relevant if she gets worsening of her symptoms or any complication related to her surgical intervention but this is not something that either Chloe or I want to explore at this stage...”
On 1 February 2022, an X-Ray Thoraco/Lumbar Spine was reported to show: preserved alignment of the thoracic and lumbar spine; no loss of height of any vertebral body; L5-S1 neural foramen were not completely visualised but the remaining neural foramina were unremarkable.
By a request dated 1 February 2022, Dr Prickett, specialist pain management physician, requested approval for the applicant to undergo anterior lumbar interbody fusion surgery, with an estimated total fee of $20,506.90.
By a request dated 1 February 2022, Dr Abson, spinal surgeon, requested approval to perform anterior lumbar interbody fusion.
Dr Michael Edger, neurosurgeon, provided an independent medical opinion, qualified by the respondent. By a report dated 2 March 2022, Dr Edger stated a diagnosis of discogenic low back pain from L5/S1 disc degeneration, which he considered to likely be a workplace exacerbation of pre-existing L5/S1 disc degeneration. Dr Edger expressed concern that the applicant’s symptoms were escalating rather than improving, despite the removal of mechanical stressors to the applicant’s lumbar spine in the workplace and multiple interventions from allied health therapies. Dr Edger stated that the degree of pain and the posture and behaviours which he observed were inconsistent with the relatively minor abnormality seen on the MRI scan. Dr Edger stated that it is likely that there were psychological factors which had not been addressed. He recommended that the applicant be referred to a pain psychologist and a comprehensive pain management program.

In relation to surgery, Dr Edger stated:
“Chloe should be referred to a pain psychologist, or be considered for the Innervate pain management program, prior to considering surgery. Surgery may be the only option for her, but at her very young age, and with a variety of pain-related behaviours which are concerning, I do not think that surgery will offer the dramatic improvement which Chloe is currently expecting.
...
I am concerned that Chloe has the idea that surgery is the only thing which will improve her condition, but a pain management program, with psychology, has not been attempted. Treatment so far has been focused on interventional procedures. Even with surgery, the risk of adjacent segment disease, with the L4/5 disc beginning to wear away more quickly, and also of sacro-iliac joint strain, mean that I am not optimistic that a return to pre-injury duties will be achieved...
... the pain should not be continuing now to the degree that it is, and that is why I think she requires further assessment from a chronic pain management specialist with psychology input, before the irreversible decision to proceed with L5/S1 discectomy and anterior fusion is made. If she does not improve with these measures, then the only option left available to her would be the L5/S1 anterior lumbar interbody fusion, but I would not support proceeding with this at the moment, only 8 months since the onset of pain.”
Further, Dr Edger stated that the requested surgery would be reasonably necessary as a result of the accepted injury “if other measures as suggested above are attempted and fail to improve her situation, and after the pain has been problematic for 12 months”. Dr Edger explained that the requested surgery “would remove the L5/S1 disc which has been shown from the local anaesthetic block to be responsible for generating the lower back pain”. He stated that the surgery could however “lead to further changes in the mechanics of her lower back which will not render her pain-free. However, if she remains unable to function due to pain following a pain management program, then there may be no choice but to proceed with the surgery”. Dr Edger stated that “Should the surgery proceed, she should ideally be able to return to light duties at 4 weeks, progressing stepwise up to normal duties within 3 months. No work or physiotherapy for the first month after surgery.” Dr Edgar also noted that “surgery would not address the other issues, which need to be explored with Chloe prior to any surgery taking place”.
In a report dated 7 March 2022, Dr Sutton, the applicant’s treating general practitioner, confirmed that he had recommended ceasing physiotherapy and that the applicant should continue only with exercise physiology, noting that treatment plans from multiple providers can conflict.
The applicant was referred to Innervate Pain Management. In a report dated 29 April 2022, Dr Kylie Bailey, senior clinical psychologist, Innervate Pain Management, recommended that the applicant attend an intensive pain program which provides active pain management strategies, medication optimisation, mood management, sleep and functional improvement and pain self-management strategies. Dr Bailey also recommended that the applicant undergo eight psychology sessions as follow-up to the pain program to help with transitioning the skills to daily life and transition to increasing her work capacity.
The applicant was referred to Dr Richard Ferch, spinal surgeon. In a report dated 24 May 2022, Dr Ferch stated that the applicant experiences consistent pain radiating across her lumbosacral junction which she rated at 8/10. Dr Ferch stated that the applicant was otherwise well and took no regular medications. On examination, Dr Ferch noted that the applicant had a marked restriction of movement about her back consistent with muscular splinting. Dr Ferch stated that recent lumbar MRI scan showed: mild degenerative change at the L5/S1 level where there is some loss of signal within the disc on the T2 weighted sequences and some central disc bulging; no evidence of neural compromise; a prominent central canal which he considered was unlikely to be contributing to her symptoms. Dr Ferch stated that the applicant’s back is safe and stable and that it would be safe for her to be active about her back. Dr Ferch considered that a substantial component of the applicant’s pain is likely to represent muscular splinting around her back which has the potential to respond to a stretching exercise program. Dr Ferch discussed a range of exercise options with the applicant and noted that she was already working with an exercise physiologist. Dr Ferch stated that surgical treatment in the applicant “carries a low chance of being of benefit to her and I would not specifically recommend it”.
In a report dated 26 May 2022, Dr Prickett, specialist pain management physician, stated that the applicant did not get significant benefit from interventional techniques. Dr Prickett expressed the opinion that, given that spinal surgery was unlikely to be supported, it was necessary to help the applicant transition into an acceptance and adaptive pain management approach which focusses on the reality that there is unlikely to be any simple fix using traditional medical techniques within the foreseeable and reasonable treatment future. Dr Prickett considered it unlikely that any medications would be effective in changing her chronic pain experience. Dr Prickett stated that he believed that the applicant’s condition had been fully investigated and that that no other sinister pathologies had been identified which were contributing to her current presentation. He supported the applicant’s involvement with a rehabilitation counsellor and a counsellor/psychologist to deal with her understandable grief reaction and sense of injustice regarding her perceived treatment.
In a report dated 20 July 2022, Dr Abson, spinal surgeon, stated that the applicant had not made any real progress since her initial consultation and work injury over twelve months ago. Dr Abson stated that the applicant had experienced no long lasting relief despite having seen pain specialists and having various interventions. Dr Abson stated that the applicant was currently seeing a physiotherapist and a psychologist and was still struggling. Dr Abson stated that a repeat MRI again showed a collapsed L5/S1 disc and a positive discogram which relieved her pain symptoms indicated that the applicant should have a positive response from a surgical intervention.
In previous proceedings brought by the applicant before the Commission, the applicant’s injury and the issue of surgery was referred to Dr Rob Kuru, Medical Assessor. By MAC dated 7 December 2022, Dr Kuru expressed the opinion that the lumbar surgery proposed by Dr Abson was not reasonably necessary. Dr Kuru explained his opinion in the following terms:
“Whilst Ms Strickland has significant low back and hamstring pain subsequent to her injury, the diagnosis of this relates to the early degenerative disc changes seen on her MRls is presumptive rather than a factual diagnosis. I estimate that the chance that such surgery would provide substantial clinical benefit such that Ms Strickland would be able to return to work would be in the region of 20%.
With respect to SIRA criteria regarding reasonably necessary treatment:
{a) With respect to injury;
The proposed treatment is recommended on the basis that Ms Strickland has had an injury. Unfortunately, the diagnosis that Ms Strickland's pain relates to the underlying disc changes seen on MRI is presumptive rather than factual.
(b} Appropriateness of the particular treatment;
There is significant controversy regarding spinal fusion procedures for the treatment of pain presumably due to degenerative disc changes. Whilst such surgery is commonly undertaken, there is significant controversy amongst the community with respect to its appropriateness. On the balance of probabilities, surgery will not be of significant benefit.
(c) Cost of treatment;
The cost of an L5/S1 anterior lumbar interbody fusion would be in the region of $35,000.
(d) Effectiveness;
The literature with respect to outcomes for fusion undertaken for degenerative disc disease would suggest a 50% chance of a minor improvement in symptoms (minimally clinically important difference 1.5-2 point improvement out of 10), a 40% chance of substantial clinical benefit (approximately 50% reduction in pain score out of 10), the chance that a patient would get a good result by patient acceptable criteria (pain score less than 4/10, use of nonnarcotic analgesics, able to return to work) would be in the region of 30%.
(e) Alternatives;
Ms Strickland’s spine is structurally stable and she is able to be active within her limits of pain. Recommended treatment would be she persist with an exercise-based rehabilitation program in conjunction with the use of simple analgesics, as required.
(f) Acceptable practice.
As above, a number of Surgeons would recommend surgical treatment in this context, given the failure of other non-operative modalities of treatment. Controversy remains with respect to surgical management of such as this.
With respect to the report by Dr Edger dated 02/03/2022, he indicates that he is not in favour of Ms Strickland proceeding with surgery at this time, but does appear to concede that ultimately should she not improve, that it would be reasonable to proceed down the path of surgery. This attitude is consistent with that of Dr Abson eventually offering surgery with limited chance of success on the basis that there are no other treatment options available.
I again note the opinion of Dr Ferch dated 24/05/2022 in which he indicates that surgical treatment is unlikely to be of benefit.”
Subsequently, the applicant completed Stage 1 and Stage 2 of the ADAPT Pain Management Program, Michael J Cousins Pain Management and Research Centre, Royal North Shore Hospital. A Discharge Summary Report dated 1 June 2023 reported on the applicant’s progress following completion of the program. It noted certain improvements in the applicant’s functional tolerances, pain self-efficacy and pain-catastrophising. However, it also noted that the applicant’s responses on measures of depression, anxiety, stress, pain intensity and pain interference had remained relatively stable.
The applicant was referred to Carl Nielsen, psychologist. In a report dated 7 August 2023, Mr Nielsen stated that the applicant had a diagnosis of Adjustment Disorder with Depressed and Anxious Mood due to the accepted injury.
On 31 August 2023, an MRI Lumbar Spine was reported to show: degenerative disc disease at L5/S1 level with a diffuse disc bulge, which was causing mild foraminal stenosis on the left with secondary compression of the L5 nerve root; and an annular tear at L5/S1 level.
In a report dated 5 September 2023, Dr Price, injury management consultant, stated that the applicant continued to suffer from chronic low back pain syndrome but had improved he felt 25% from when she was previously seen due to in particular the ADAPT pain management program, her ongoing physiotherapy and increased desire to exercise. He noted that the applicant’s mental health had improved somewhat which she attributed to psychological treatment. Dr Price stated that the applicant had received very appropriate treatment to date and he noted that there had been a response to therapy although it had been slow. Dr Price expressed concern that the applicant “would not do well” with any invasive surgical treatment. Dr Price felt that the applicant was fit for four hours of work per day, three days a week of appropriate duties. Dr Price expressed the opinion that the applicant’s condition should completely resolve with ongoing appropriate treatment, including significant psychological input in pain management methodologies, although he acknowledged that it would continue to be a process of two steps forward and one step back.
On 6 November 2023, a Radionuclide Bone Scan was reported to show: no cause for the applicant’s lower back pain.
On 7 November 2023, a radionuclide bone scan was reported to show: no significant evidence of a condition of the lumbar spine; and no cause for the applicant’s ongoing lower back pain.
The applicant was referred to Dr Brian Hsu, orthopaedic surgeon. In a report dated 28 December 2023, Dr Hsu stated that a lumbar epidural injection provided the applicant with complete relief for 24 hours, which provided good diagnostic information. Dr Hsu noted that the applicant’s symptoms subsequently returned and continued to be quite significant and that non-operative and operative treatment options were discussed.
In a report dated 17 January 2024, Dr Price, injury management consultant, stated that the applicant continues to suffer from chronic lower back pain syndrome but he felt that she had improved somewhat since he previously saw her, despite her denial. Dr Price stated that the applicant manages some significant exercise. Dr Price expressed the opinion that the applicant’s condition should continue to improve and completely resolve if she carried out appropriate recommended muscle release techniques. Dr Price did not agree that surgery was appropriate to treat the applicant’s condition and stated that “in a 23-year-old otherwise fit member of a family would be anti-therapeutic and... should be avoided”.
In a report dated 7 March 2024, Dr Hsu, orthopaedic surgeon, stated that the applicant’s recent bone scan did not demonstrate any significant increased update, and her most recent lumbar spine injection did give her some relief during the anaesthetic phase and also for one to two days after the injection. Dr Hsu stated that the applicant has exhausted nonoperative treatment. Dr Hsu recommended that the applicant undergo an L5/S1 interbody fusion. Because of the applicant’s young age, Dr Hsu recommended that she initially undergo only an anterior interbody fusion and, if she subsequently continues to have pain or if she has a nonunion because of the anterior procedure only, then she subsequently also undergo L5/S1 posterior decompression and fusion. Dr Hsu stated that he had discussed the surgical goals, risks and benefits of surgery and the peri-operative risks and potential further complications with the applicant, and the applicant was keen to consider such surgical intervention.
In a letter dated 12 March 2024, Dr Hsu estimated total fees for L5/S1 Anterior Lumbar Interbody Fusion to be $6,876.
The applicant’s general practitioner, Dr Tonje Vestol, issued a Certificate of Capacity dated 20 March 2024, which certified that the applicant had some capacity to work from 20 March 2024 to 1 May 2024 in respect of injuries being: “Thoracic spine strain (Rx); Lumbar spine L5/S1 bulging disc (MRI 10/7/21); Adjustment disorder”.
In a report dated 8 May 2024, Mr Bowd, exercise physiologist, reported that the applicant had continued to attend fortnightly exercise physiology consultations and actively engaged in the exercise physiology program. He noted that the applicant remained interested in lumbar fusion surgery to improve her pain and functional tolerances.
In a report dated 19 July 2024, Dr Hsu, orthopaedic surgeon, diagnosed discogenic back pain most likely related to the L5/S1 significant intervertebral disc collapse as a result of the accepted injury. Dr Hsu indicated that he supported an L5-S1 anterior interbody fusion. Dr Hsu stated that because of the applicant’s young age, only an anterior interbody fusion should be initially performed. Dr Hsu stated that the applicant had exhausted non-operative treatment and that, without surgical treatment, she can expect to have permanent functional deficit and ongoing pain. Dr Hsu agreed that delay could contribute to the applicant’s psychological condition, gastro-oesophageal reflux disease and sleep disturbance.
Dr Anil Nair, orthopaedic surgeon, conducted a file review on behalf of the insurer. In a report dated 12 September 2024, Dr Nair acknowledged that it was impossible to provide an opinion with any conviction simply from review of file material as opposed to clinically assessing a patient and scrutinising the actual imaging. Based on the information at hand, Dr Nair stated that it seemed that the applicant has L5/S1 degenerative disc disease. In relation to the requested surgery, Dr Nair stated that:
“... Based on the information at hand, the [requested surgery] would be intrinsically unpredictable in terms of outcomes and results. There is no evidence of a neurocompressive lesion. There is no evidence of acute or type 1 Modic changes. The surgery costs approximately $35,000 to $40,000 per episode of care. In the absence of the parameters previously mentioned, the [requested surgery] lacks predictability.
...
The prognosis is guarded due to the fundamental lack of predictability of surgery.”
Dr Nair stated that Dr Hsu’s report dated 19 July 2024 does not address the predictability of surgical intervention. Dr Nair accepted that the applicant has exhausted conservative treatment and that further investigations are unlikely to be of benefit. Dr Nair stated that the fact that the applicant has exhausted conservative treatment is not in itself a reason to progress toward surgery if the surgery lacks predictability.
In a report dated 15 October 2024, Dr Hsu, orthopaedic surgeon, stated that Dr Nair’s report dated 12 September 2024 did not change his opinion. Dr Hsu stated that “[the applicant] has exhausted non operative treatment and without surgical treatment, she can expect to have permanent functional deficit and ongoing pain. Surgery is reasonably necessary”.

SUBMISSIONS

The submissions of the parties are recorded and I do not propose to recount them in detail in these reasons.
Both counsel acknowledged that the only issue requiring determination is whether the requested surgery is reasonably necessary.
Further, both counsel accepted that Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) sets out the matters that the Commission is required to consider in determining whether the requested surgery is reasonably necessary.
On behalf of the applicant, Mr Hanrahan examined the applicant’s evidence and the various medical evidence in detail. Mr Hanrahan submitted that, in the context of the evidence as a whole, the medical evidence which supports the requested surgery is persuasive and compelling. Mr Hanrahan submitted that there is evidence of pathology at the L5/S1 level and the applicant had a positive result from injection at the L5/S1 level which supports surgical intervention at that level. Mr Hanrahan submitted that the evidence demonstrates that the applicant is in significant pain and suffers significant impairment as a result of the accepted injury, and that she has exhausted conservative treatment. Mr Hanrahan submitted that the medical evidence indicates that the applicant could expect permanent ongoing significant pain and functional deficit without the requested surgery. Mr Hanrahan submitted that the test of reasonable necessity does not require a guaranteed positive outcome, noting that the decision of Rose v Health Commission (NSW) (1986) 2 NSWCCR 32 refers to “potential” effectiveness. Mr Hanrahan also relied on the decision of Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233, noting that it stated that if it is better for the applicant to have treatment, then it should not be forborne. Mr Hanrahan submitted that the medical evidence demonstrates the potential effectiveness of the requested surgery and that it would be a significant assistance to the applicant if the requested surgery at least alleviated some of her pain and suffering. Mr Hanrahan submitted that, in all the circumstances, it is better that the applicant have the requested surgery. Mr Hanrahan submitted that, having regard to the evidence as a whole, the Commission should find that the requested surgery is reasonably necessary.

On behalf of the respondent, Mr Jones stated that it is not in dispute that the applicant suffered injury to her back, she continues to suffer pain and there is a psychological component to her presentation. Mr Jones also stated that it is not in dispute that the requested surgery is the type of surgery that is to address the pathology that is evident in the scans. Mr Jones relied on the decision of Donelle Young v Vietman Veterans Keith Payne VC Hostel [2020] NSWWCC 217 at [120] and submitted that the failure of previous treatment is not of itself sufficient to establish that the requested surgery is reasonably necessary. Mr Jones examined the various medical evidence in detail and submitted that the medical evidence in support of the requested surgery is not persuasive nor compelling. Mr Jones submitted that the medical evidence demonstrates that there is a psychological component which creates real complexity in terms of the applicant’s pain, symptoms and prognosis. Mr Jones submitted that, in view of that complexity, it is not reasonably necessary that the applicant should undergo irreversible surgery at the relatively young age of 24 years, in circumstances where there is a significant risk that the surgery will be ineffective to treat the applicant’s perception of pain. Mr Jones submitted that whilst the requested surgery may address the pathology there is insufficient evidence to be satisfied that it will predictably address the applicant’s perception of pain which impacts her functioning. Mr Jones submitted that the requested surgery is not reasonably necessary in the circumstances where there has been an increase in the level of the applicant’s function following the applicant’s completion of the ADAPT Pain Management Program. Mr Jones submitted that the applicant’s symptoms are now best addressed by continuing such treatment including psychological treatment rather than by the requested surgery. Mr Jones submitted that, having regard to the evidence as a whole, the Commission should find that the requested surgery is not reasonably necessary.
In reply, Mr Hanrahan submitted that the MRI scan in 2023 did identify L5/S1 nerve involvement and an annular tear. Mr Hanrahan referred to various medical evidence. Mr Hanrahan submitted that Dr Price invalidated the applicant’s complaint of pain, yet he noted that the applicant walked with a limp, had various symptoms and he observed a deterioration in her condition.

DISCUSSION AND FINDINGS

Legislation and case law

Section 60 of the 1987 Act relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, because 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 Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab), Roche DP, referring to the decision in Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 (Rose), set out the test for determining if medical treatment is reasonably necessary as a result of a work injury:
“The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC2; (1986) 2 NSWCCR 32 (Rose) where his Honour said, at 48A-C:
…
3.     Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.     It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.     In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and tis place in the usual medical armoury of treatments for the particular condition.”
Roche DP also noted that the Commission has generally referred to and applied the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233 (Bartolo):
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”

Roche DP found:
“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.”

Consideration

The applicant seeks compensation for the cost of the requested surgery, being L5/S1 anterior lumbar interbody spinal fusion surgery requested by Dr Brian Hsu.

Injury

The respondent accepts that the applicant sustained a work injury to her lumbar spine, with a date of injury of 18 June 2021.
In the MAC issued on 7 December 2022, Dr Kuru, Medical Assessor, stated that the applicant has significant low back and hamstring pain subsequent to the accepted injury.

Medical treatment

The requested surgery is clearly “medical or related treatment (other than domestic assistance)” within the meaning of s 60(1)(a) of the 1987 Act.

Cost of treatment

The Application states that the total estimated fees of the requested surgery is $20,000.
In a letter dated 12 March 2024, Dr Hsu estimated his fees for the requested surgery to be $6,876.
There is no evidence which challenges the quantum of the estimated expenses and the respondent did not raise issue with the quantum of the estimated expenses.

Availability of alternative treatment and its potential effectiveness

In the MAC issued on 7 December 2022, Dr Kuru, Medical Assessor, recommended that the applicant persist with an exercise-based rehabilitation program in conjunction with analgesic medication, as required.
It appears to be common ground that, subsequent to the issue of the MAC, the applicant did undergo various further conservative treatment.
The applicant also completed Stage 1 and Stage 2 of the ADAPT Pain Management Program. The Discharge Summary issued on 1 June 2023 reported certain improvements in the applicant’s functional tolerances, pain self-efficacy and pain-catastrophising. However, it also noted that the applicant’s responses on measures of depression, anxiety, stress, pain intensity and pain interference had remained relatively stable.
The applicant also received psychological treatment. On 7 August 2023, Mr Nielsen, psychologist, reported a diagnosis of Adjustment Disorder with Depressed and Anxious Mood secondary to the accepted injury. There is no evidence which challenges that diagnosis, which I accept.
A lumbar epidural injection at L5/S1 or about 28 December 2023 did not provide enduring relief and the applicant’s symptoms returned after 24 hours.
In his reports dated 5 September 2023 and 17 January 2024, Dr Price, injury management consultant, accepted that the applicant had received appropriate treatment to date. Dr Price felt that the applicant had improved somewhat since he last saw her, despite her denial and assertion that she continues to suffer chronic lower back pain. Dr Price stated that the applicant manages some significant exercise. Dr Price expressed the opinion that the applicant’s condition should continue to improve and completely resolve with ongoing appropriate treatment, including significant input in pain management methodologies and recommended muscle release techniques.
However in reports dated 7 March 2024 and 19 July 2024, the applicant’s treating orthopaedic surgeon, Dr Hsu, stated that the applicant had exhausted nonoperative treatment and he recommended the requested surgery.
On 20 March 2024, the applicant’s treating general practitioner, Dr Vestol, certified that the applicant had some capacity to work in respect of thoracic spine strain, lumbar spine L5/S1 bulging disc and adjustment disorder.
Several months later, on 8 May 2024, Mr Bowd, exercise physiologist, reported that despite the applicant having attended fortnightly exercise physiology consultations and actively engaged in the exercise physiology program, she remained interested in the requested treatment to improve her pain and functional tolerance.
Further, on 19 July 2024, Dr Hsu reported that the applicant experienced functional deficit and ongoing pain.
In a report dated 12 September 2024, Dr Nair, orthopaedic surgeon accepted that the applicant has exhausted conservative treatment and that further investigations are unlikely to be of benefit.
The applicant’s evidence is that, notwithstanding undergoing further various treatment and pain medication, her condition has severely deteriorated since the assessment by Dr Kuru and issue of the MAC. The applicant’s evidence is that she continues to experience significant and debilitating ongoing pain and that she also experiences consequential side effects of pain medication, sleep difficulties and severe depression.
The applicant’s evidence regarding her ongoing symptoms is significantly supported by the treating medical evidence, although Dr Price felt that the applicant’s symptoms had improved somewhat following the ADAPT Pain Management Program. However, the applicant’s credibility has not been challenged and there was no application for leave to cross-examine her.
I find the evidence of the applicant’s treating practitioners particularly persuasive. I consider that they would have had ample opportunity to thoroughly assess the effectiveness of the various conservative treatments through their involvement with the applicant on a therapeutic basis.
For these reasons and having regard to the evidence as a whole, I accept that the applicant has undergone various appropriate conservative treatment to date, including the ADAPT Pain Management Program, injections, physiotherapy, exercise physiology and pain medication. In particular, I accept that since the issue of the MAC, the applicant has undergone the further treatment recommended by Dr Kuru. Further, I accept that despite some improvement in functional tolerances and managing some exercise, those conservative treatments have been largely unsuccessful to provide significant ongoing relief of the applicant’s pain. On that basis, I accept that the applicant continues to experience significant chronic lower back pain, some functional limitations and she also experiences consequential side effects of pain medication, sleep difficulties and severe depression as a result of the accepted injury.
In relation to the availability of alternative treatment and its potential effectiveness, as I have stated above, I accept that the applicant has undertaken the alternative treatments recommended by Dr Kuru in the MAC but they have not resulted in any significant ongoing relief of her chronic pain.
Mr Jones submitted on behalf of the respondent that the requested surgery is not reasonably necessary, at least partly, because the applicant’s condition would likely continue to improve with ongoing pain management treatment and psychological treatment.
However, I do not consider that there is compelling evidence which significantly supports the likely effectiveness of that or other alternative future treatment, particularly to address the applicant’s perception of pain.
Having regard to the evidence as a whole, I am satisfied on the balance of probability that the applicant has exhausted conservative treatments and that there is no alternative treatment which is likely to be effective to address the applicant’s significant ongoing symptoms, particularly her perception of pain.

Acceptance by medical experts of the treatment as being appropriate and likely to be effective

In the MAC issued on 7 December 2022, Dr Kuru, Medical Assessor, opined that surgery then proposed by Dr Abson, being the same as the requested surgery, was not reasonably necessary. Dr Kuru’s primary concerns were that: the diagnosis that the applicant’s pain related to degenerative disc changes seen on the MRIs was presumptive rather than factual; there was significant controversy regarding the appropriateness of the surgery; the applicant’s spine is structurally stable and she is able to be active within her limits of pain; and on the balance of probabilities, surgery will not be of significant benefit. In relation to effectiveness, Dr Kuru referred to literature which suggested a 50% chance of a minor improvement in symptoms, a 40% chance of substantial clinical benefit and a 30% chance of a good result.
The evidence of the applicant’s treating surgeon, Dr Hsu, is that the requested surgery is reasonably necessary and appropriate to treat the accepted injury. In reports dated 28 December 2023 and 7 March 2024, Dr Hsu stated that a lumbar epidural injection provided the applicant with complete relief for 24 hours, which provided good diagnostic information.
In a report dated 19 July 2024 and 15 October 2024, Dr Hsu maintained his opinion that the requested surgery is reasonably necessary. Dr Hsu diagnosed discogenic back pain most likely related to L5/S1 significant intervertebral disc collapse as a result of the accepted surgery. Dr Hsu stated that only an L5-S1 anterior interbody fusion should be initially performed because of the applicant’s young age. Dr Hsu stated that, without surgical treatment, the applicant can expect to have permanent functional deficit and ongoing pain. Dr Hsu also stated that delay in surgery could contribute to the applicant’s psychological condition, gastro-oesophageal reflux disease and sleep disturbance.
I note that Dr Hsu did not specifically address nor quantify the likely effectiveness of the requested surgery. However, I consider it implicit in Dr Hsu’s reports that he was of the opinion that the likely effectiveness of the requested surgery was such that the requested surgery was “reasonably necessary”.
Dr Hsu’s evidence is consistent with the evidence of the applicant’s former treating spinal surgeon, Dr Abson, who previously recommended the same surgery. In reports dated 24 January 2022 and 20 July 2022, Dr Abson stated that a repeat MRI again showed a collapsed L5/S1 disc and a positive discogram which relieved the applicant’s pain symptoms indicated that the applicant should have a positive response to the surgery.
In addition, Dr Prickett, specialist pain management physician, in a report dated 25 January 2022, noted a temporary positive response to intradiscal local anaesthetic and stated that in all the circumstances he considered that the applicant “is a reasonable candidate to get the best chance of benefit from the surgical procedure”. Dr Prickett supported the applicant undergoing the surgery proposed by Dr Abson.
Further, Dr Edger, neurosurgeon, provided an independent medical opinion. In a report dated 2 March 2022, Dr Edger conceded that the surgery proposed by Dr Abson would be reasonably necessary if other suggested measures failed to improve the applicant’s situation and after the pain has been problematic for 12 months. Dr Edger explained that the surgery “would remove the L5/S1 disc which has been shown from the local anaesthetic block to be responsible for generating the lower back pain” and he estimated that the surgery may enable the applicant to progress to a graduated return to work duties.
This can be contrasted with the opinion of Dr Ferch on 24 May 2022 that the previously requested surgery was unlikely to be of benefit.
Further, Dr Price, injury management consultant, in a report dated 5 September 2023, expressed concern that the applicant “would not do well” with any invasive surgical treatment. Dr Price felt that the applicant’s condition would completely resolve with ongoing appropriate treatment including significant psychological input. However, as noted above, I am satisfied on the balance of probability that the applicant has exhausted conservative treatments and that there is no alternative treatment which is likely to be effective to address the applicant’s significant ongoing symptoms.
More recently on 17 January 2024, Dr Price, injury management consultant, expressed the opinion that the surgery proposed by Dr Abson “carries a low chance of being of benefit” to the applicant, would be “anti-therapeutic” and should be avoided.
Similarly, in a report dated 12 September 2024, Dr Nair, orthopaedic surgeon, expressed the opinion that there was a fundamental lack of predictability of the requested surgery, in terms of outcomes and results. Dr Nair stated that it seemed that the applicant has L5/S1 degenerative disc disease and that there is no evidence of a neurocompressive lesion nor of acute or Type 1 Modic changes. I note that Dr Nair formed his opinion on the basis of a file review and Dr Nair acknowledged that it was impossible to provide an opinion with any conviction simply from review of file material as opposed to clinically assessing a patient and scrutinising actual imaging.
Since the issue of the MAC on 7 December 2022, there have been significant developments in relation to medical investigations, the applicant’s treatment, ongoing symptoms and effects of the accepted injury.
As set out above, the applicant has undergone various conservative treatment without any enduring relief of her significant pain.
Further investigations have been undertaken. In particular, on 31 August 2023, an MRI Lumbar Spine was reported to show: degenerative disc disease at L5/S1 level with a diffuse disc bulge, which was causing mild foraminal stenosis on the left with secondary compression of the L5 nerve root; and an annular tear at L5/S1 level. That can be contrasted with previous imaging which did not show definite significant thoracic or lumbar pathology apart from a central L5/S1 disc bulge and some minor loss of T2 signal (MRI on 10 July 2021) and some features of degenerative disc disease in the thoracic spine.
Further, on or about 28 December 2023, a lumbar epidural injection at L5/S1 provided the applicant with some relief during the anaesthetic phase and for one to two days after the injection before the applicant’s symptoms returned. That result was somewhat consistent with an L5/S1 intradiscal local anaesthetic on 20 January 2020 which also resulted in a reported temporary reduction in the applicant’s pain.
As noted above, Dr Hsu and other doctors considered that the results of the lumbar epidural injection on 28 December 2023 supported the requested surgery at the L5/S1 level.

The medical evidence in relation to the appropriateness of the requested surgery and its effectiveness is not clear cut and is somewhat difficult to reconcile.
The applicant has not given recent evidence by an independent medical expert. However, I note that there is considerable medical evidence dealing with the issues generally, and this includes the independent medical opinion of Dr Michael Edger, neurosurgeon, by way of report dated 2 March 2022.
Considering the evidence as a whole, I prefer the evidence of Dr Hsu. Having regard to all of the circumstances, I consider that, as the applicant’s treating orthopaedic surgeon, Dr Hsu would be best placed to form a sound opinion of the applicant’s diagnosis, and the appropriateness and likely effectiveness of the requested surgery. Dr Hsu’s opinion is consistent with the applicant’s previous treating orthopaedic surgeon and various other medical evidence. I consider that Dr Hsu’s opinion is consistent with the recent imaging. On balance considering the evidence as a whole, I am satisfied that Dr Hsu’s opinion provides the most logical and likely explanation for the applicant’s ongoing symptoms and treatment needs.
However, I note that in Donelle Young v Vietnam Veterams Keigh Payne VC Hostel [2020] NSWWCC 217, Arbitrator Wynyard (as he then was) stated at [109]:
“109. Whilst a potentially poor outcome from surgery is not necessarily a reason to doubt whether proposed treatment will be effective, as the overall purpose of medical treatment is to alleviate suffering, each case must be decided on its facts. Neither Dr Coughlan nor Dr Bodel has made any convincing case that the proposed surgery will alleviate, or have the potential to alleviate Ms Young’s symptoms. The highest the need for surgery has been put was that Dr Coughlan had not come to his decision quickly or lightly, but had recommended the surgery because of the failure of the previous conservative approaches. The failure of previous treatment is not of itself sufficient to establish that a particular treatment is appropriate.”
To the extent that reservations have been expressed about the likelihood of effectiveness of the requested surgery, I note the comments of Roche DP in Diab 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.”
Further, I note the comments of Roche DP in Bartolo:
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
I accept that the applicant has a psychological presentation however I do not consider that there is persuasive evidence which demonstrates that ongoing psychological treatment will be effective to relieve the applicant’s significant pain. Similarly, I do not consider that there is compelling evidence that any alternative conservative treatment will relieve the applicant’s significant pain.
In the context of the medical history and medical evidence as a whole, I consider that it is most logical and likely and I accept, consistent with Dr Hsu’s opinion, that without the requested treatment, the applicant can expect to have significant ongoing pain. I also accept, consistent with Dr Hsu’s opinion, that delay in surgery could contribute to the applicant’s psychological condition, gastro-oesophageal reflux disease and sleep disturbance.
Adopting a commonsense evaluation of the evidence as a whole and all of the facts of this case, I do feel a real sense of persuasion and I am satisfied that the requested surgery would have potential effectiveness to relieve the applicant’s significant pain and that it is better that the applicant have the requested surgery.
I have set out my process of reasoning above. For all of the reasons set out above, I accept that the L5/S1 anterior lumbar interbody spinal fusion surgery requested by Dr Brian Hsu is reasonably necessary as a result of the accepted lumbar spine injury with a date of injury of 18 June 2021.

SUMMARY

In summary, the Commission determines:
(a) the L5/S1 anterior lumbar interbody spinal fusion surgery requested by Dr Brian Hsu is reasonably necessary as a result of the accepted lumbar spine injury with a date of injury of 18 June 2021.
On that basis, the Commission orders:
(a) the respondent to pay, in accordance with s 60 of the 1987 Act, the costs of and incidental to L5/S1 anterior lumbar interbody spinal fusion surgery requested by Dr Brian Hsu.

[2024] NSWPIC 645

21 November 2024