Thomson v Civforce Traffic Management Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Thomson v Civforce Traffic Management Pty Ltd [2023] NSWPIC 602
APPLICANT:	Kerrie Thomson
RESPONDENT:	Civforce Traffic Management Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	9 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Application for L5/S1 surgery; whether applicant’s experts demonstrated proposed surgery was reasonably necessary; Held – medico-legal expert simply relied on treating surgeon’s opinion when he had referred to many issues that required consideration; treating surgeon’s opinion inconsistent and contradictory; Diab v NRMA Ltd considered; no prima facie case established; onus of proof not met; Hancock v East Coast Timber Products Pty Ltd, Brown v Lewis, and Hernandez v State Rail Authority considered and applied; award respondent.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Kerrie Thomson, the applicant, seeks a declaration that a proposed L5-S1 decompression and surgery is reasonably necessary, and an order that the respondent, Civforce Traffic Management Pty Ltd, pay the cost of the procedure.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) is the proposed surgery reasonably necessary?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was heard on 25 August 2023 by video link. Mr Craig Tanner of counsel appeared, briefed by Mr Thomas Schembri. Mr Dewashish Adhikary of counsel appeared for the respondent, instructed by Mr Chris Smith. Ms Miriam Menge appeared for the insurer.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute;
(b)    Application to admit late documents dated 14 August 2023, and
(c)    Reply.

Oral evidence

No application was made.

FINDINGS AND REASONS

Ms Thomson

Ms Thomson made a statement dated 4 July 2023.[1] Ms Thomson described that when she was doing traffic control work she stepped out of her vehicle and rolled her right ankle on a piece of pavement. She went to Hornsby Hospital the next morning due to her concerns with her ankle, and was discharged wearing a CAM boot.
[1] ARD page 1.
Ms Thomson confirmed her subsequent difficulties in the months that followed, stating that she was unable to put any weight on her right ankle and had to use a walking scooter as her ankle was extremely sensitive and had a very limited range of motion.
She said at [10]:
“I confirm my CRPS in my right ankle is causing me considerable pain and discomfort. Some days the area is hot whereas some days it is freezing cold. it is constantly swelling and changing colour. Some days I cannot even touch my ankle. Some days it is also sensitive to walk on.”
Ms Thomson said that in about May 2021 she made a gradual return to work. She was not required to go on site but rather worked in the yard of the company, four hours per day, two days per week. She said from [12]:
“I was required to organise the yard which required me to move bundles of road signs and other traffic control equipment. I confirm that I did this for approximately 4 months on and off. I was working 4 hours a day twice a week.
Due to the significant restrictions in my right ankle, I had to rely a lot on my upper body when attending to this work. As a result, I quickly started to notice pain and restriction specifically in my lower back.
I am now at the point where the pain in my lower back is just as discomforting as a CRPS in my right ankle.”
Ms Thomson referred to her treatment by Dr Hsu, stating that she underwent a cortisone injection “around November/December 2022” to which she did not react well. She said she was bedridden for six weeks thereafter.
Ms Thomson stated that she wished to undergo the surgery. She had gone through a detox program to stop her smoking habit, she had undergone hydrotherapy without benefit, and she believed that the proposed surgery would assist her with her “deteriorating and debilitating pain.”
In describing the “Impacts of Injuries” Ms Thomson listed many of the activities of daily living that she is no longer able to do. At [34] she said:
“I confirm that nowadays, I need assistance with dressing and showering. Due to the CRPS, I struggle to put on and take off my pants as my ankle was too sensitive to touch. I note that it is also too difficult to reach my feet or my legs due to the pain and restriction in my lower back.”

Dr Brian Hsu

Dr Hsu, adult and paediatric spine surgeon, is Ms Thomson’s treating surgeon. He supplied three reports dated 14 December 2022, 31 May 2023 and 4 July 2023.
On 14 December 2022 Dr Hsu wrote a progress report to the referring general practitioner (GP). He recommended trialling an L5-S1 bilateral facet joint injection.[2]
[2] ARD page 87.
In his report of 31 May 2023 he confirmed that he had examined Ms Thomson on
24 November 2022, 14 December 2022, 15 February 2023, and 1 March 2023.
He took a consistent history of the injury to the right ankle. He noted that a bone scan demonstrated some facet joint pathology, that examination showed a decreased range of motion in the lumbar spine for forward flexion and extension and that an MRI scan showed loss of disc height and “disc bulge at multiple levels.”[3] He also noted some right hip pathology.
[3] ARD page 56.
Dr Hsu stated that Ms Thomson’s symptoms correlated with “the findings on examination and the injuries sustained.” He said:[4]
“The nature of her job is the substantial contributing factor to her condition, subsequent incapacity and the need for further surgical intervention due to the repetitive movements of bending, twisting and lifting.”
[4] ARD page 57.
In his report of 4 July 2023 the following appeared:
“1. Are you of the opinion that our client has exhausted all conservative measures prior to recommending the L5-S1 decompression and fusion? If so why/why not? Please provide your reasoning.
Ms Thomson has significant symptoms which are affecting her function and holistic well-being. She has now exhausted non-operative treatment.
2. We enclose herewith for your consideration reports of Dr Hale dated 30 January 2023 and 18 April 2023. Dr Hale is of the opinion that our client's lumbar spine condition could be managed non-operatively. Do you agree with this opinion? If so, why/why not? Please provide your reasoning.
I do not agree with this opinion. Ms Thomson has significant symptoms which are affecting her function and holistic well-being. She has now exhausted non-operative treatment.
3. We note Dr Hale is of the opinion that it is unlikely that our client's symptoms in her lumbar spine will be ongoing. Do you agree with this opinion? If so, why/why not? Please provide your reasoning.
With timely intervention, which is now surgery, the prognosis is good. The aim of the surgery is to return to pre-injury duties, improve function for activities of daily living 6 to 12 months following surgery”.
[Emphasis as written].

Dr Eugene Gehr

Dr Gehr, orthopaedic surgeon, was retained as the applicant’s medico-legal expert. His report was dated 29 May 2023.[5] Dr Gehr referred to the documentation that accompanied the referral, and gave an extensive and accurate summary of the relevant entries. The entries demonstrated that there were many more complaints and conditions within the history than simply Ms Thomson’s lumbar spine symptoms.
[5] ARD page 19 – 48.
Dr Gehr noted entries in the GP notes of Dr Ron Tomlins which showed complaints between 2 May 2020 and 22 May 2020 which were concerned with the right ankle injury.
Dr Gehr also acknowledged a report from Dr Andrew Wines, orthopaedic surgeon of
5 June 2020. This again was concerned with the injury to the right ankle. Dr Wines noted that imaging had confirmed injury to the lateral ligament without any other significant pathology. The 2 January 2014 imaging showed multilevel degenerative disc disease, with mild degenerative disease at L4/5. The scan of 20 September 2022 showed mild lumbar spondylotic change and mild lumbar facet arthropy. Dr Wines was quoted by Dr Gehr as saying:
“Her significant pain and stiffness are out of proportion to what would normally be expected from this injury, and it is likely that a considerable proportion of the symptoms are neuropathic in nature….”
Dr Gehr referred to a report from Dr Jane Standen, pain specialist, of 11 June 2020, in which she discussed Ms Thomson’s history of chronic pain. Dr Standen was quoted by Dr Gehr as saying:
“…She is known to the pain clinic at Royal North Shore Hospital. She has a history of chronic pain involving: Migraines for which she was managing with Pasadena Parenterally until 2 to 3 years ago, and pelvic pain secondary to endometriosis and polycystic ovarian syndrome promoting a hysterectomy….”
Dr Gehr referred to a number of further reports from Dr Standen, the last being dated
10 December 2021. By that date Ms Thomson was not using any walking aids on a regular basis, and her complaints were about neuropathic pain episodically over the anterior and lateral aspect of the right foot. “Problematic” migraines were also noted, as was a recent admission to Hornsby Hospital for her migraine condition.
Dr Gehr referred to a report by Dr Eric Lim, GP dated 6 September 2022, noting that
Ms Thomson was said to be unlikely to ever work as a traffic controller because of chronic pain, and that “as a result of her work-related right ankle injury she had to walk with an altered gait which caused right hip/knee and lumbar spine aggravation.” Dr Gehr noted a further report from Dr Lim dated 27 September 2022 which noted that Ms Thomson had been diagnosed with adjustment disorder and depressed and anxious mood.
Dr Gehr also referred to a report from Dr Calvin Chien, orthopaedic surgeon, dated
10 October 2022. Dr Gehr noted the diagnosis as being moderate post-traumatic arthritis to the right ankle, right knee aggravation of chronic arthritis and right hip labral tear. Dr Chien also noted a diagnosis of right lower limb CRPS and that over time with her altered gait the right lower back and right hip started to be increasingly painful, as did, to a lesser extent, her right knee. Dr Gehr noted Dr Chien’s advice:
“… While she displays signs of CRPS, surgery should be avoided.”
Dr Gehr also referred to a report of Dr Morgan Mo, of 24 October 2022, who found that
[6] The Budapest criteria are those criteria used to diagnose CRPS. The criteria in Chapter 17 of the Guidelines for Permanent Impairment reflect them.
Ms Thomson met the Budapest criteria[6] and suffered from consequential lower limb/back injuries and a consequential elbow injury.
Dr Gehr noted that Dr Ben Dixon GP on 31 October 2022 diagnosed right ankle fracture, right ankle CRPS, a chronic adjustment disorder, lumbar spine aggravation, L5/S1 disc protrusion, multiple level bulging disc, facet joint arthrosis, right hip/knee FAI with the gluteal and hamstring tendinopathy, right wrist/elbow aggravation and tenosynovitis.
Dr Gehr noted further that on 16 November 2022 Dr Calvache-Rubio, GP, diagnosed:
“Patient was ankle injury – CRPS. Chronic condition, chronic disabilities. Awaiting foot surgeon and neurosurgeon. Opioid dependence, BZ D dependence… She is in psychological distress.”
A Super Assessment Report by Dr Lim GP of 23 November 2022 was also referred to by
Dr Gehr. Dr Gehr recorded that Dr Lim diagnosed CRPS and that Ms Thomson experienced ankle pain which prevented her from working.
Dr Gehr surveyed the “IME” reports that were before him. The report of 17 September 2022 was by Dr Geoffrey Needham, pain management and rehabilitation specialist. Dr Needham diagnosed CRPS following the right ankle sprain. He noted Ms Thomson had a significantly impaired memory which was likely caused by her current excessive consumption of opioid analgesics. Ms Thomson was under psychological management.
Dr Gehr referred to a further report from Dr Needham of 18 January 2021 in which it was noted that a diagnosis was made by a psychologist of “severe anxiety, extremely severe depression, and severe stress symptoms.”
Dr Gehr also referred to an expert report (that was not otherwise before me) by
Dr Mohammad Assem, rehabilitation specialist, dated 3 June 2022. This report was concerned with Ms Thomson’s constant foot and ankle discomfort. It was noted at that stage that her condition had been complicated by the development of CRPS 1. Dr Assem also noted that Ms Thomson’s intake of narcotic analgesia needed to be monitored and reduced. It was suggested that a spinal cord stimulator could be considered. Dr Assem was asked to give an opinion as to whole person impairment that she was entitled to 12% WPI consisting of 15% lower extremity impairment for the limitation in ankle motion, 2% lower extremity impairment for limitation in subtalar motion and 16% lower extremity impairment with regard to the CRPS condition.
Dr Gehr also considered the 14 radiological investigations before him. Two concerned the lumbar spine – one being an MRI dated 2 January 2014.[7] The second was a further MRI which included the right hip, dated 20 September 2022.[8] He described the latter by saying:
“MRI Lumbar Spine and Right Hip dated 20/9/2022 – Mild lumbar spondylotic change with no evidence of neural impingement. Mild lumbar facet arthropathy. Features of mixed type FAI at the right hip without arthropathy at the right hip joint. Gluteal and hamstring tendinopathy.”
[7] ARD page 40.
[8] ARD page 39.
Dr Gehr reported that in 2021 Ms Thomson developed low back pain with radiation down the right leg “that appears to be pain radiating up from the foot and ankle area.”[9] He noted the MRI scan of 20 September 2022, and Dr Hsu’s recommendations for surgery. He said:[10]
“I have reviewed the notes of Dr B Hsu, in particular his summary notes, dated 1/3/23 and 31/5/23, and I agree with his rationale and recommendations for L5/Si decompression and fusion. This surgery is reasonably necessary.”
[9] ARD page 45.
[10] ARD page 46.
Dr Gehr was asked to comment on each of the criteria set out at [88] of Diab v NRMA Ltd.[11] Having done so he said:
“I would recommend she and her husband again speak to Dr Hsu about the indications, likely outcome and potential problems of such surgery.”
[11] [2014] NSWWCCPD 72.

Dr Gehr said that Ms Thomson had “zero chances” of work in the future and zero capacity. He said:[12]
“Her working life is now over.”
[12] ARD page 48.

MRI scan 20 September 2022

The scan was taken of the right hip and the lumbar spine. It said, relevantly:[13]
[13] ARD page 182/3.
“Lumbar spine:
There is a lumbar curvature convex to the right centred at the upper lumbar spine. No abnormal marrow signal is demonstrated.
The SI joints have a normal and symmetrical appearance.
The conus medullaris and cauda equina nerve roots have a normal appearance.
At the T11/T12 level, there is disc height loss, posterior annular tear and minimal disc bulge with no central canal or foraminal narrowing.
At the T12/L1 level, there is a minimal disc bulge indenting the anterior thecal sac with no central canal or foraminal narrowing.
At the L1/L2 level, there is a minimal disc bulge with no central canal or foraminal narrowing.
At the L2/L3 level, there is a minimal disc bulge with mild facet arthrosis and no central canal or foraminal narrowing.
At the L3/L4 level, there is a minimal disc bulge and mild facet arthrosis with no central canal or foraminal narrowing.
At the L3/L4 level, there is a minimal disc bulge and mild facet arthrosis with no central canal or foraminal narrowing.
At the L4/L5 level, there is a minor disc bulge and facet arthrosis with no central canal or foraminal narrowing
At the L5/S1level, there is a left paracentral disc protrusion and mild facet arthrosis with mild right foraminal narrowing and minimal left foraminal narrowing.
COMMENT:
Mild lumbar spondylotic change with no evidence of neural impingement. Mild lumbar facet arthropathy.
Features of mixed type FAI at the right hip without arthropathy at the right hip joint. Gluteal and hamstring tendinopathy.”

SUBMISSIONS

Mr Tanner

Mr Tanner firstly referred to the MRI scan of 20 September 2022. He submitted that it demonstrated pathology at L5/S1 in the form of the left paracentral disc protrusion and mild facet arthrosis with mild right foraminal narrowing and minimal left foraminal narrowing.
Mr Tanner relied on Dr Hsu’s report of 31 May 2023, noting Ms Thomson’s self-assessment as to the level of pain, and that the listed treatments had failed. Mr Tanner referred to
Ms Thomson’s description of her reaction to the cortisone injection performed by Dr Hsu.
Mr Tanner referred to the recommendation made by Dr Hsu. “For completeness” he referred to the reports Dr Hsu had made to the GP, and in particular Dr Hsu’s report of
24 November 2022 in which Dr Hsu said that the applicant “has significant back and leg pain.”
It was, Mr Tanner submitted, important to distinguish between the opinion of the treating surgeon (who had seen Ms Thomson on a number of occasions, was responsible for her care, and who had taken a number of steps to obtain a proper diagnosis), and the opinion of Dr Hale, on whom the respondent relied, who did not refer to the radiological evidence relied on by Dr Hsu.
Mr Tanner also referred to a further letter from Dr Hsu to the GP of 14 December 2022, in which Dr Hsu referred to the bone scan result. This showed some facet joint pathology as a result of which the above-mentioned cortisone was recommended. Mr Tanner said that on 14 February 2023 Dr Hsu had noted that the injection was unsuccessful, and that
Ms Thomson was now very keen to proceed to surgery.
Mr Tanner relied on the report of Dr Gehr, who had noted the results of the MRI scan of
20 September 2022. Mr Tanner submitted that accordingly both Dr Hsu and Dr Gehr had noted the lumbar spine pathology, whereas Dr Hale had not referred to it. Dr Gehr had also noted that Ms Thomson had undergone the unsuccessful epidural procedure which resulted in the recommendation for the subject surgery.
Mr Tanner referred to the complaints recorded by Dr Gehr from the applicant, and Dr Gehr’s findings on examination of tenderness in the mid lumbar area and right buttocks area and a loss of lordosis. Mr Tanner referred to Dr Gehr’s finding that the radiation in the right leg was coming up from the ankle. He referred to one of two of Dr Gehr’s diagnoses[14] - that there was soft tissue injury in the lumbar spine with guarding and dysmetria on a background of spondylotic changes. Mr Tanner also referred to Dr Gehr’s opinion that the proposed surgery was reasonably necessary, and Dr Gehr’s reasons for so finding.
[14] The other being of CRPS.
Mr Tanner then made submissions concerning the respondent’s case, noting that Dr Hale’s focus had been on the ankle, and that Dr Hale had not considered the investigations regarding the lumbar spine. Moreover, Dr Hale had not examined the back, and had not made any diagnosis in respect of it. He submitted that Dr Hale’s supplementary report which purported to advise whether the recommended surgical treatment was “reasonable or necessary” was based on wrong legal tests both as to the issue, and as to the whether the potential relief had to be “considerable” or not.

Mr Adhikary

Mr Adhikary submitted that Dr Hale accepted that Ms Thomson had suffered a consequential condition to her lumbar spine, but advised that it should be treated by conservative measures such as physiotherapy and hydrotherapy. The physiotherapy that Ms Thomson had been undergoing had not been for her lumbar spine, but rather for her ankle, Mr Adhikary submitted. Mr Adhikary conceded that under the Diab tests Dr Hale had been incorrect in some respects, but nonetheless submitted that his overall opinion – that will there was no clinical indication for surgery – could be accepted.

There was no evidence that Ms Thomson’s lumbar spine had been treated by either physiotherapy or hydrotherapy, Mr Adhikary submitted. He referred to an entry of
[15] ARD page 268.
12 September 2022 in the GP clinical notes by a physiotherapist, Ms Parcio-Cooke.[15] He suggested that the ketamine infusions had not been administered as treatment of the lumbar spine condition, nor had most of the nerve blocks administered been concerned with the lumbar spine, although Mr Adhikary conceded that there may have been similar treatment for the lumbar spine as suggested by Dr Standen.
Mr Adhikary referred to Dr Hsu’s report to Dr Lim of 15 February 2023, which asked
Ms Thomson to discuss the option of further surgical intervention or trial of any further non-operative treatment options with Dr Lim.

Mr Tanner in reply

Mr Tanner agreed that Dr Hale had indeed examined Ms Thomson’s lumbar spine, but submitted that he had not made any diagnosis, nor had he seen the imaging.

DISCUSSION

The tests in Diab appear at [88], where DP Roche set out what he described as “useful heads of consideration”:
“(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.”
In his report, Dr Gehr answered Ms Thomson’s solicitor’s questions about these heads appropriately, but it can be seen that his opinion was not based on any facts or reasons of his own, but rather on an adoption of Dr Hsu’s opinion.
Dr Hsu’s recommendation for surgery was explained in his report of 31 May 2023. As was perhaps understandable, given his specialty as an orthopaedic surgeon, the history given was parred down to the bare outline of just Ms Thomson’s lumbar spine condition. He said that it had been caused by her altered gait following her right ankle injury, and he noted
Ms Thomson’s self-assessment of 8/10 on a pain scale. He also noted the following non-operative treatment:
·        bed rest;
·        physiotherapy;
·        medication;
·        tens machine;
·        hot packs;
·        ice packs;
·        ultrasound, and
·        previous spinal injection.
Mr Adhikary questioned whether all those modalities were treatment for the lumbar spine condition, an issue we shall return to presently.
Dr Hsu referred firstly to the bone scan results. The bone scan was performed on
9 December 2022 at the behest of Dr Hsu.[16] The conclusion by Dr Rebecca Concannon, the Radiologist, was:
“Mild right L5-S1 facet arthritis and right L5-S1 discovertebral arthritis.”
[16] Reply page 49.
Dr Hsu commented that some facet joint pathology had been demonstrated. He also referred to “an MRI scan”, which I assume was that of 20 September 2022, and not the 2014 imaging. As indicated, the conclusion by the Radiologist Dr Sabharwal was:
“Mild lumbar spondylotic change with no evidence of neural involvement.
Mild lumbar facet arthropathy.”
The terms “spondylotic,” “arthropathy” and “arthritis” are commonly encountered in this jurisdiction. Spondylosis is the medical term for age-related degeneration of the spine, often called degenerative disc disease. Facet arthropathy is a degenerative joint disease, of which arthritis is a type, located within the facet joints, which are located on the back of the spine. Arthritis is a term that encompasses more than 100 conditions that affect the joints of the body.
During the hearing I enquired of Mr Tanner how surgery could help arthritis and he replied that he relied on the expert evidence. It is necessary for an applicant to establish that the expert evidence provides a satisfactory basis on which find in his/her favour.
In Hancock v East Coast Timber Products Pty Ltd[17] Beazley JA (Giles and Tobias JJA agreeing) said at [82]:
“Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence…”
[17] [2011] NSWCA 11.
In Brown v Lewis[18] the Court (Mason P, Santow and McColl JJA) stated:
“If the plaintiff’s case is left so full of holes that the necessary facts cannot be found or inferred then the relevant part of the claim must fail, because the plaintiff bears the ultimate onus of proof. In some matters there may be a shifting of the evidentiary onus (eg Watts v Rake[1960] HCA 58; (1960) 108 CLR 158) but the ultimate persuasive onus remains with the plaintiff.
[18] [2006] NSWCA 87.
In Hernandez v State Rail Authority[19] DP Elizabeth Wood said:
“165. The appellant relies on Watts and Purkess. I …. reiterate that, where the appellant has failed to establish his prima facie case, it is not necessary for the respondent to adduce evidence to contradict the assertions made by the appellant.”
[19] [2022] NSWPICPD 5.
Dr Hsu’s opinion as to causation did not appear to bear any relationship to the facts. He stated, as indicated, that it was the nature of Ms Thomson’s job that was the substantial contributing factor to Ms Thomson’s condition, subsequent incapacity and the need for further surgical intervention. The condition Dr Hsu was treating was the condition of
Ms Thomson’s lumbar spine. The nature of her job, which was as a traffic controller, was not alleged to have been the cause of this condition - it was Ms Thomson rolling her right ankle that was the relevant injury, as it caused the altered gait. Accordingly the lumbar spine condition was consequential to that injury, and the question of whether the nature of
[20] See e.g. Bouchmouni v Bakhos Matta t/a Western Red Services [2013] NSWWCCPD 4.
Ms Thomson’s employment was a substantial contributing factor was irrelevant.[20]
More significant, however, was Dr Hsu’s opinion that Ms Thomson’s condition, subsequent incapacity and need for further surgical intervention was “due to the repetitive movements of bending, twisting and lifting.” This conclusion was not further developed, and no basis for it appears in the evidence. Firstly, Ms Thomson was employed as a traffic controller, and there was no suggestion in the extensive evidence before me that it had anything to do with repetitive movements of bending twisting and lifting. Secondly, Ms Thomson’s subsequent incapacity, as has been seen, was caused by a multitude of conditions that attended her ankle injury. They were referred to by Dr Gehr, and included CRPS around the right ankle, the onset of a psychological condition, and the restrictions caused by the ankle injury itself. Thirdly, the need for surgical intervention, as Dr Hsu said himself earlier in his report, was caused by the “significant back pain” which had been caused by her “altered gait.”
There is thus an inconsistency within Dr Hsu’s opinion that cannot be resolved.
Dr Hsu’s further report of 4 July 2023 did nothing to clarify matters. It can be seen that he stated twice that non-operative treatment had been exhausted, and that the purpose of the surgery was because “her significant symptoms” were “affecting her function and holistic well-being,” which he also repeated.
Just how the proposed surgery to the L5/S1 segment of the lumbar spine was intended to improve Ms Thomson’s holistic well-being was not explained, given that her condition was a consequence of her right ankle injury which the evidence showed was the main focus of her symptoms, and in respect of which she had developed her CRPS condition.
These contradictions also infect Dr Gehr’s opinion, as he did no more than agree with
Dr Hsu’s “rationale and recommendations.” Dr Hsu’s rationale being unexplained and contradictory, Dr Gehr’s opinion accordingly has little probative weight. Indeed Dr Gehr took that course in the face of his most comprehensive survey of the documentation before him, which I have outlined above. He was accordingly aware of the dominating diagnosis of CRPS – which was also made by Dr Gehr, as I have intimated above in discussing
Mr Tanner’s submissions. One of the opinions Dr Gehr had referred to was that of Dr Chien of 10 October 2022, who said that “surgery should be avoided” whilst Ms Thomson was displaying signs of CPRS. Dr Gehr did not engage with that opinion, nor with the other comorbid conditions he outlined.
Further, Dr Gehr answered the Diab questions as follows:[21]
·        that the surgery was appropriate where non-operative measures have failed;
·        that the surgery was 60-80% effective;
·        that alternative treatment had been exhausted;
·        that the proposed surgery was cost beneficia,l and
·        that it was generally accepted by the medical profession in Australia.
[21] ARD page 47.
Dr Gehr then said:
“I would recommend she and her husband again speak to Dr Hsu about the indications, likely outcome and potential problems of such surgery.”
Dr Gehr’s comment could thus not be seen as a ringing endorsement of Dr Hsu’s recommendation, in any event.
I am therefore satisfied that the applicant has not made out a prima facie case that the proposed surgery is reasonably necessary, and the application is rejected.
If I am wrong then I remain unpersuaded in any event that Ms Thomson has met her onus of proof.
Ms Thomson said in her statement that the work she was doing on light duties four hours per day twice a week for “approximately 4 months on and off” “in or around May 2021.”
In that regard, the history given to her second GP’s practice as evidenced by the clinical notes of the Workers Doctors, and reports made by its members, was that:
“[Ms Thomson] consulted with her GP the same day [as her ankle injury]. She continued working on light duties for 2 days/4 hours per week but was no longer able to cope with pain.”[22]
[22] This history was repeated at ARD pages 50, 115, 247, 254 and 261.
The impression given by that history is that Ms Thomson returned on light duties immediately after she rolled her ankle, which was not correct.
Psychologist Carl Neilsen reported that Ms Thomson:
“…consulted her GP and continued on light duties but was no longer able to cope with the pain. Subsequent to her right ankle injury Ms Thomson developed lower back pain, right wrist, right hip and right knee injuries and her last day of work was approximately July 2022.”[23]
[23] ARD pages 228 and 270.
An entry in the clinical noted of Ms Thomson’s first GP, Dr Tomlins stated on
20 December 2021:[24]
“Employer can provide shed duties for 4 hour shifts based at Wetheral Park.”
[24] ARD page 335.
A “Recover at Work Plan” stated that Ms Thomson was anticipated to return to work on
[25] ARD page 433.
17 January 2022.[25]
The respondent lodged a list of payments for the dates 9 May 2020 to 8 April 2023.[26] This demonstrated that Ms Thomson had worked over five weeks between 20 February 2022 and 26 March 2022, working for 5 hours, 6.25 hours, and three periods of 8 hours respectively.
[26] Reply pages 1 – 3.
Whilst Ms Thomson alleged that the light duties work she was doing caused her to suffer lower back pain, there is no contemporaneous or expert support for her assertion, and the dates are so confused that it is not possible to make a determination. In view of the cognitive difficulties referred to by Dr Gehr in his summary of the documentation I would hesitate before accepting Ms Thomson’s recall. In saying that I am not suggesting that she would have sought to mislead the Commission, but she may have inadvertently mistaken or innocently reconstructed the detail she now remembers.
I was not persuaded that the non-operative treatment listed by Dr Hsu was in relation to
Ms Thomson’s lumbar spine condition. It is relevant to note that Ms Thomson’s solicitors sought an opinion from Dr Assem on 30 June 2022 as to whole person impairment, which did not assess the lumbar spine condition, notwithstanding that he was asked to do so.[27] Moreover, the substantive report from Dr Assem was made available to Dr Gehr (although not before me), who summarised it as being concerned with Ms Thomson’s right ankle injury and subsequent CRPS condition. Dr Gehr’s summary did not mention the lumbar spine.
Dr Assem recorded that Ms Thomson was receiving physiotherapy and psychological counselling, in addition to taking Panadeine Forte and Valium. Dr Assem advised that
[27] Reply page 15 [1].
[28] ARD page 34.
Ms Thomson’s intake of narcotic analgesia needed to be monitored and rationalised. He advised further that physiotherapy treatment was needed for her ankle injury, and psychological counselling for her pain management.[28]
The provision of a tens machine was noted by Dr Standen as early as 1 July 2020, before any lumbar spine condition had developed.[29] An ultrasound was performed on
Ms Thomson’s chest and pericardium on 26 August 2021.[30] It was also used as treatment for Ms Thomson’s ankle injury on 20 July 2020.[31] I could not find in the evidence any reference to either a tens machine or an ultrasound being involved as treatment for
[29] ARD page 31.
[30] ARD page 328.
[31] ARD page 352.
Ms Thomson’s lumbar spine.
Finally, there was a contradiction between Dr Hsu’s opinion and that of Dr Gehr regarding the likely outcome of the surgery. Dr Hsu said the aim was to “return to pre-injury duties, improve function for activities of daily living 6 to 12 months following surgery.”
Dr Gehr, on the other hand, said:
“Her working life is now over.”
Accordingly, the applicant has failed to satisfy her onus of proof, and there will be an award for the respondent.

[2023] NSWPIC 602

9 November 2023