Tough v Protech Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tough v Protech Pty Ltd [2021] NSWPIC 260
APPLICANT:	Shanon Tough
RESPONDENT:	Protech Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	26 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim pursuant to section 60 of the 1987 Act for the costs of and incidental to a proposed L4/5 disc replacement procedure; claim for weekly compensation discontinued; accepted injury in the nature of an aggravation of pre-existing lumbar pathology; desktop surveillance of applicant showed him participating in kayaking, fishing, boating, surfing and riding rollercoasters after the injury; whether proposed surgery reasonably necessary as a result of injury; Held- respondent’s medicolegal expert did not engage sufficiently with radiological investigations, EMG studies and discogram revealing pathology intended to be treated by the proposed procedure; award in favour of the applicant.
DETERMINATIONS MADE:	1. The L4/5 total disc replacement surgery as recommended by Dr Laurence McEntee is reasonably necessary as a result of the injury on 30 May 2019. 2. The respondent to pay the costs of and incidental to the proposed surgery pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Shanon Tough (the applicant) was employed as a labourer by Protech Pty Ltd (the respondent). On 30 May 2019, the applicant sustained an injury to his lumbar spine whilst using a large plate compactor to backfill a culvert.
Liability for an injury to the applicant’s lumbar spine on that date was accepted by the respondent’s insurer.
On 9 March 2020, the applicant’s orthopaedic surgeon, Dr Laurence McEntee, forwarded to the insurer a request for approval for the applicant to undergo a L4/5 disc replacement surgery.
On 17 July 2020, the insurer disputed liability to pay weekly benefits and treatment expenses in respect of the injury in a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). That decision was maintained following an internal review pursuant to s 287A of the 1998 Act in a notice dated 1 October 2020.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 20 May 2021. The applicant seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the costs of and incidental to the surgery proposed by Dr McEntee.
A claim for weekly compensation was discontinued at the initial teleconference on 18 June 2021.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 20 July 2021. The applicant was represented by legal practitioners Mr Brett Gilbert and Mr Ben Newling. The respondent was represented by Mr Dewashish Adhikary of counsel, instructed by Ms Pradesha Thomas. A number of representatives from the insurer and the employer were also present.
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.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:

(a) whether the L4/5 total disc replacement surgery as recommended by Dr Laurence McEntee is reasonably necessary as a result of the injury on 30 May 2019.

EVIDENCE

Documentary evidence

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

(a)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    annexure to the factual investigation report by AB Investigations dated 11 June 2020, served and lodged on 20 July 2021.
An objection to the admission of two reports attached to the Reply prepared by AB Investigations was determined at the commencement of the arbitration. For reasons given orally and recorded on the transcript, the reports were admitted into evidence together the annexure referred to at (c) above.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by him on 10 July 2020 and 3 February 2021.
In the first statement, which was prepared by an investigator from AB Investigations acting on behalf of the insurer, the applicant stated that he commenced a civil construction (road construction and maintenance) apprenticeship in June 2018. The applicant commenced employment with the respondent as a civil construction labourer in approximately April 2018. The applicant said he had no prior injury to his back or any related medical condition prior to commencing employment with the respondent.

On 30 May 2019, in the course of his normal duties, the applicant was using a large plate compactor weighing around 400 kg whilst backfilling a culvert. The compactor started to drift near the edge of the culvert and the applicant tried his best using all his strength to keep the compactor under control. The corner of the compactor hit the edge of the culvert and tipped sending the applicant sliding down the embankment which was around a 2 m fall. The applicant felt a large stabbing pain in his lower back unlike any other pain he had felt before. The applicant reported the injury the same day.
The applicant returned to work the following Monday but lasted approximately one hour before his pain became too much. The applicant had not been able to return to any form of employment since that time.

The applicant was also employed as a retained firefighter with the New South Wales Fire Brigade. As a result of the work injury, the applicant had been unable to return to those duties.

The applicant stated that he and his partner had five children between them and prior to the work injury they would often spend their weekends and weekdays at the beach. The applicant said he was unable to go to the beach as often as he previously did. The applicant struggled day to day. The applicant was unable to sit in a vehicle for long periods, could not lift anything above his head. The applicant’s hobbies and interests were fishing and other outdoor sporting activities, however, he had not been able to perform these activities as often as he did prior to the work injury.
The applicant’s spinal surgeon, Dr Laurence McEntee, had recommended that the applicant undergo disc replacement surgery. The applicant wished to undergo the surgery and felt that it would markedly assist his recovery.
In the applicant’s supplementary statement, he responded to a social media search report prepared by AB Investigations, dated 1 June 2020, and a report prepared by the independent medical examiner qualified by the respondent, Dr Paul Robinson, dated 3 July 2020.
The applicant stated that on 3 November 2019 he went kayaking on his Hobie kayak. The kayak could be pedalled using his legs rather than his upper body. The applicant was able to get out of the kayak at many intervals and his brothers towed the applicant’s kayak while he walked around unsuitable stretches of river. The applicant said he had a high pain threshold and was taking tramadol for the work injury at the time. The applicant spent the next three days bedridden recovering from the physical activity.
On 30 November 2019, the applicant rode on a rollercoaster at Warner Brothers Movie World on the Gold Coast. The applicant had taken tramadol but took two days to recover from the activity.
On 15 December 2019, the applicant attempted to go surfing with his family. The applicant took tramadol and felt he could participate in the surfing. The applicant spent a week physically recovering. The mental agony the applicant was experiencing as a result of the work injury was as bad as the physical pain. The applicant thought that trying to live his life with some sort of normality would help him.

On 21 March 2020, the applicant went out in a tinny on an open river with his children. It was a calm day and the tinny was stable enough for the applicant to stand and stretch as needed.

The applicant confirmed that he was the president of the South Services Gunners Junior Soccer Club. In this role, the applicant posted information on social media. The job had no impact on the applicant’s injury.
The applicant said he was strong and fit and had a high pain threshold.

Treating medical evidence

A CT scan of the lumbosacral spine performed on 3 June 2019 for the applicant’s general practitioner, Dr David Dalgleish, was reported to show a broad-based disc protrusion at L4/5 posteriorly without significant canal foraminal compromise.
An MRI of the spine performed on 27 August 2019 was reported to show the following at L4/5:
“There is a moderate broad-based posterior disc protrusion. This indents the anterior thecal sac but without significant central canal narrowing. abuts but does not displace or compress the LS nerve roots as they exit the thecal sac. No significant L4 foraminal narrowing. No neural compressive lesion.”
Orthopaedic surgeon, Dr Laurence McEntee prepared a report for Dr Dalgleish on 13 September 2019. Dr McEntee took a history of the work injury as follows:
“Shanon injured his back on 30 May 2019 at work. He was stopping a 400kg plate compressor slide off a bench at work and developed sudden severe low back pain which dropped him to the ground. It was a Friday and he had the weekend off. He tried to return to work on Monday but he just couldn't move, so he had to stop work and he hasn't returned since. He has done four months of physiotherapy but tends to find after every physiotherapy session his pain has flared up, not better. He has just started now with an exercise physiologist. He has no pain, numbness or pins and needles down either leg. His pain is mechanical in nature, worse if he sits in one spot for a long period.”
Dr McEntee reviewed the MRI scan which showed a central disc protrusion at L4/5 in association with disc desiccation which was likely responsible for the applicant’s symptoms. Dr McEntee recommended that the applicant continue with exercise physiology and core muscle strengthening.
A report from the applicant’s exercise physiologist, Shannon White to Dr Dalgleish dated 9 December 2019 stated:
“Shanon has shown minimal improvements in function, however still reports symptoms of spasm, describes a locking sensation, and reports symptoms of a burning sensation in his muscles (specifically right lumbar) following exertion. We have been working to return Shanon to work by increasing his functional capacity, however little progress has been made. Shanon reports being very sore the day from prolonged periods of driving/sitting, or from excess movement in the days before his treatment. Shanon reports anticipating the pain following movement and lifting, he reports having to think about how he is doing things before completing them. Shanon regularly reports doing physically demanding activities at home (such as kayaking for extended periods) which he has reported he is able to do but knows will make him feel worse for several days after.”
On 28 January 2020, Dr McEntee reported that the applicant’s back pain had not settled and he was experiencing ongoing episodes of discogenic low back pain/instability with shooting pain down both legs. Dr McEntee arranged a discogram at L4/5 as well as an EMG of the lower limbs.
Neurologist, Dr Ventzi Bonev, reported on 19 February 2020 that he found neurophysiological evidence of chronic bilateral L5 nerve root dysfunction, more pronounced on the left side than the right.
The report of a fluoroscopic guided L4/5 provocative discography and post discography CT lumbar spine, dated 19 February 2020 noted:
“Positive provocative discography L4/L5 achieving a pain score of 8/10. Prominent disc disruption with full-thickness annular tears and irregularity of the nucleus pulposus.”
In a report dated 5 March 2020, Dr McEntee stated:
“His EMG confirms bilateral L5 radiculopathies, worse on the left than the right, in keeping with his symptoms. His discography was markedly positive at L4-5 with significant pain replicating his usual low back pain. We are, therefore, looking at proceeding to surgery in the form of an L4-5 total disc replacement.”
On 9 March 2020, Dr McEntee wrote to the insurer requesting approval for the L4/5 total disc replacement procedure stating:
“I request Mr Tough undergoes L4-5 total disc replacement for an injury he sustained at work in May 2019. He continues to experience significant back pain and sciatica since that injury which has not improved with the passage of time and surgical intervention is warranted, I request your approval to proceed with the L4-5 total disc replacement.”

Dr Simon Kinny

The applicant relies on medicolegal reports prepared by orthopaedic surgeon, Dr Simon Kinny, dated 15 September 2020 and 17 February 2021.
In his first report, Dr Kinny recorded a history that the applicant was on apprenticeship at the time of his injury. Following the workplace accident, the applicant was unable to participate in his work as a retained firefighter. The applicant spent his time walking, watching TV and occasionally fishing. The applicant had complained to his general practitioner for some months prior to the workplace injury that he was suffering from lower back pain. The pain was initially intermittent and only present with activity. It settled with rest.
Following the workplace accident, the applicant was in such pain that he could barely move. The applicant tried to go to work but could not lift anything heavy and was unable to continue at the workplace. The applicant underwent a CT scan of his back and was referred to Dr McEntee. The applicant underwent six months of conservative treatment, consisting of physiotherapy and attendances upon an exercise physiologist. The applicant’s low back and left leg radicular pain persisted. The applicant underwent discography which was positive for an injury at L4/5, which was noted to be ruptured. It was recommended that the applicant undergo a replacement of the L4/5 disc.
The applicant stated that he could drive for about 40 minutes, was unable to sit long enough to watch a movie and was very restless at night. The applicant did not have difficulty walking on flat level ground but could not use a mop. The applicant could use a vacuum cleaner and his children mowed the lawn for him. The applicant stated that if he attempted any activity he paid for it with increased pain for the subsequent few days.
Dr Kinny referred to an MRI scan of the applicant’s lumbar spine on 7 March 2018, which at L4/5 showed a broad-based posterocentral disc protrusion indenting the thecal sac but not impinging the traversing L5 nerve roots. A CT scan performed on 3 June 2019 showed a broad-based disc protrusion posteriorly without significant canal foraminal compromise. However, an MRI scan of the lumbar spine performed on 27 August 2019 showed bulging of the L4/5 disc was particularly noticeable. The disc had an altered signal compared with the other lumbar discs. Dr Kinny said:
“Comparing the actual scan images electronically, which I was able to do through the local radiology practice, my impression is that the L4/5 disc prolapse is larger after the injury event, than it was before.”

Dr Kinny gave the opinion:
“Since the time of the workplace injury event on 30 May 2019, which Mr Tough states was witnessed by at least one work colleague, he has experienced worsened back pain and left-sided radiculopathy, which he did not previously report. He has been seen by a neurosurgeon, treated appropriately, conservatively for a satisfactory length of time, and has persisting symptoms. It has now been recommended by Dr McEntee that Mr Tough undergo an L4/5 disc replacement.
In my opinion, this is now appropriate treatment for the claimant. I would regard his workplace injury event as being an aggravation of a pre-existing condition, resulting in a significant and permanent worsening of the pre-existing condition, such that he now has radiculopathy, and therefore operative treatment has become necessary as a direct consequence of that injury event, and not just routine deterioration over time.”

In his supplementary report of 17 February 2021, Dr Kinny was asked to comment on the allegations raised in the AB Investigations reports and the report of Dr Robinson, dated 3 July 2020.
Dr Kinny indicated that the new information did not cause him to change his assessment of the applicant’s mechanism of injury. Dr Kinny commented:
“Mr Tough explained that as a result of his workplace injury, which I regard as an aggravation and worsening of an underlying pre-existing condition, he now has significant back pain after performing physical activities. These include workplace tasks, meaning that he is unable to resume pre-injury employment, and various domestic leisure activities. However, Mr Tough indicated to me at the time of consultation that he was no longer performing such leisure activities as a consequence, or performing them in extremely limited amount. The surveillance clearly indicates that he was not being truthful with me in that regard. He was clearly undertaking much more leisure activity than he stated that he could manage. His statement suggests that he had a lot of discomfort after such activity, but that he felt that he should undertake it, both for his own mental health, and the relationship with his children. If the claimant is minimising his capacity to participate in leisure activities to assessors like myself, but there is clear evidence that he has a higher capacity, then one must question his alleged incapacity to perform workplace activity.”
Dr Kinny summarised his opinion as follows:
“I think the best way I can summarise my opinion regarding this claimant now, given all the additional information now received, is that the claimant is exaggerating his level of symptomatology, particularly in regard to leisure activity and back pain symptoms possibly preventing this, and that therefore his level of inability to perform workplace activity as a result of his back pain symptomatology must be taken with a grain of salt. However, such exaggeration of symptoms on behalf of the claimant, if that indeed is what is occurring, does not preclude the fact that the claimant clearly has an L4/5 disc injury, and would likely benefit from a disc replacement procedure, as proposed by Dr McEntee.”

AB Investigations reports

The insurer relies on two reports prepared by AB Investigations, a background/social media search report dated 1 June 2020 and a factual investigation report dated 11 June 2020.
The first report was prepared in response to evidence from the employer that the applicant was active on social media and had posted pictorial evidence of undertaking activities including learning to surf and riding on a rollercoaster.
Desktop surveillance of the applicant revealed Facebook and Instagram profiles identifying several activities including surfing, fishing from a boat and kayak, coaching a football team and riding a rollercoaster after the date of injury.
The report contains links to a number of posts which are described, including a picture of the applicant and his son holding fishing poles in a small fishing boat dated 21 March 2020; videos dated 15 December 2019 of the applicant attempting to surf; pictures dated 30 November 2019 of the applicant and his children riding rollercoasters at a theme park on the Gold Coast; pictures of the applicant fishing out of kayaks on 3 November 2019; and pictures of the applicant at a beach wearing swimming attire on 11 August 2019.

Dr Paul Robinson

The respondent relies on medicolegal reports prepared by orthopaedic surgeon, Dr Paul Robinson, dated 29 April 2020 and 3 July 2020.

In his first report, Dr Robinson took a history of the injury on 30 May 2019 that was consistent with the applicant’s evidence. It was reported that numerous people observed the injury and the applicant was assisted to his feet. Dr Robinson noted that the applicant underwent an MRI and was referred to Dr McEntee who initially treated the applicant conservatively. When the applicant’s symptoms failed to improve, a discogram and EMG were performed and an L4/5 disc replacement had been suggested in order to reduce his symptoms.
The applicant reported pain on a daily basis, intensifying with any attempted activities such as lifting, bending, twisting or sporting pursuits. Dr Robinson recorded:
“Sporting pursuits, he states, have been unable to be undertaken. I particularly questioned him about his capacity to kayak and surf, and he states that he has not been undertaking such. He states that he is unable to mow his lawn or perform other gardening chores. He has trouble in undertaking housework and also driving a motor vehicle.”
Dr Robinson referred to the MRI dated 29 August 2019, a CT scan taken on 9 August 2019 and the discogram dated 13 March 2020 although it was not seen.
Dr Robinson gave the opinion:
“Mr Tough has sustained an injury to his lower back following a work-related accident in May 2019. Conservative measures have failed to resolve his symptoms and a degenerative disc protrusion at L4/5 is present. He has no evidence of a radiculopathy on clinical examination, and his major problem is pain aggravated by activities, as mentioned.”
Asked whether the applicant’s current presentation was consistent with the mechanism of injury, Dr Robinson responded:
“The mechanism of injury is consistent with an irritation of the lower back, and in particular, of a degenerate disc at L4/5. It is likely that the degeneration at this level may have been present prior to the stated incident, but one cannot establish this as no investigations were performed prior to the incident. Symptoms also were not present. His current presentation thus would appear to be due to the work-related injury rather than to non-work-related conditions or previous history of problems.”
Asked whether the surgery proposed by Dr McEntee would address the workplace injury, Dr Robinson responded:
“The disc replacement should address the workplace injury and the degeneration at L4/5. This should have a positive impact on reducing his symptoms. Complications can occur, and there may be other causes in the facet joints for pain, but at this stage, the major pathology seems to be at L4/5. The indications for the surgery, thus, are met by Mr Tough.”
Dr Robinson prepared a supplementary report on 3 July 2020 in which he was asked to consider the reports from AB Investigations. Dr Robinson gave the opinion:
“…given the inconsistencies in his history given to me and his subsequent activity in his social media posts, it is not possible to offer a definitive opinion as to whether the any incident of 30 May 2019 caused any injury or continuing problems. He may have suffered an exacerbation as a result of the injury he reported to me, however given the results of the information you have now provided, he no longer appears to be suffering from the effects of that injury, and any such exacerbation would appear to have ceased.”
Asked whether the recreational activities the applicant performed in late 2019 to early 2020 had caused him to require the need for surgery, Dr Robinson responded:
“It is difficult to correlate the problems he experiences and his statements that he has not returned to sporting pursuits with what has been seen in the social media posts. The injury, from this further information provided, would not appear to be continuing to produce symptoms that would justify an operative procedure.”

Applicant’s submissions

Mr Gilbert observed that the applicant was 37 years old at the time of injury and was a fit and healthy man. He was working as a mature apprentice and was one month away from completing his apprenticeship when the injury occurred. The applicant had secondary employment with the fire brigade. As a result of the injury, the applicant had lost his employment and secondary employment and his ability to participate in recreational activities had been significantly curtailed.
Mr Gilbert conceded that there was a well-documented history of prior back pain. There was no prior frank injury but the applicant has not attempted to conceal the prior symptoms. There was an MRI scan in 2018 and Dr Kinny had undertaken a careful analysis of the radiology. The 2018 MRI scan showed no impingement on the L4/5 roots. That scan was performed around 15 months before the accident. After the accident, there was a further scan in August 2019 which showed a disc prolapse. Dr Kinny had determined that the prolapse was larger after the accident. Dr Kinny had the benefit of comparing the scans taken both before and after the incident.
In contrast, Dr Robinson made no mention of the prior scan and had been denied the opportunity to make a comparison between the pre-existing pathology and the pathology after the accident.
It was initially recommended that the applicant undertake conservative treatment. When symptoms did not settle, a nerve conduction study and invasive discogram procedure were performed. These showed a prominent disc rupture with full thickness annular tear. That explained the severe pain after the accident compared to the relatively mild lower back pain previously.
Mr Gilbert noted that the MRI scan of 27 August 219 was performed prior to the social media posts relied on in the social media investigation report. Mr Gilbert said it could not be suggested that those activities were responsible for the new pathology. Dr Kinny said there had been a permanent worsening of the pathology and gave the opinion that the applicant would benefit from the proposed surgery.
Mr Gilbert observed that Dr Robinson arrived at the same conclusion initially. All of the doctors were initially in agreement. What then happened was that unknown persons who were not medically qualified from AB Investigations undertook an analysis of some photographs and drew certain conclusions which were forwarded to Dr Robinson.
In submissions opposing the admission of the reports of AB Investigations, Mr Gilbert noted that the reports were unsigned and did not include the relevant attachments, photographs or social media posts. The reports contained unqualified medical opinions from an unknown author.
Those opinions cast aspersions on the applicant’s credit and cast doubt over whether the injury actually occurred. Dr Robinson’s supplementary report had been tainted by these aspersions as to the applicant’s credibility.
Dr Robinson said, “it would appear there are photos”. This suggested Dr Robinson had not seen the photos or videos himself but had adopted the commentary on those photos from AB Investigations. It was unclear what was provided to Dr Robinson. No letter of instruction was available.
Dr Robinson was led into revising his opinion on causation. As a result of the way he had been led and the information provided from AB Investigations, Dr Robinson concluded that any aggravation would have ceased and the need for the operation did not arise. In giving this opinion, Dr Robinson did not rely on the radiology, only the report by some unknown lay author drawing conclusions from unseen photos and videos.
If it were accepted that the applicant had been participating in activities that he said he could not participate in any longer, at best Dr Robinson would be entitled to conclude that perhaps the level of capacity was greater than claimed. That did not, however, break the causal chain between the surgery and the injury.
Mr Gilbert submitted that the applicant never gave evidence he could not do anything he just said he could not engage in recreational activities as often. The applicant was honest about undertaking these activities. There were some days that were better than others. Mr Gilbert submitted that it would be normal for a father of young children to participate in activities with his children for the good of his family and his own mental health.
Mr Gilbert submitted that Dr Robinson had not even seen what the applicant was doing. He could not tell what range of movement was engaged in or what level of pain was experienced after performing those activities. The pathology shown on radiological investigation had worsened. Taking out Dr Robinson’s report, Mr Gilbert submitted that there was no dispute at all. Dr Robinson’s report was tainted and based on material that was insufficient to justify the conclusions drawn.
Mr Gilbert submitted that the surgery proposed was relatively new and invasive. It was a big undertaking and it was unlikely the applicant would be seeking to undergo the surgery if he didn’t think it was necessary.

Respondent’s submissions

Mr Adhikary submitted that the Commission would not be satisfied that a causal relationship between the need for surgery and the work injury had been demonstrated on the balance of probabilities for the purposes of s 60 of the 1987 Act.
Mr Adhikary noted that the applicant relied on the opinions of his treating surgeon Dr McEntee and Dr Kinny. Dr Kinny took a history that the applicant had not worked since the accident, was a retained firefighter and unable to engage in those occupations, and now spent time walking and occasionally fishing. If he attempted any activity, he paid for it. This was said to include the one time he attempted surfing and was observed.
Dr Robinson specifically asked the applicant whether he was able to kayak and surf and the applicant denied this. On the evidence the applicant provided on the day of Dr Robinson’s first examination, Dr Robinson expressed an opinion favourable to the applicant.
Subsequently, there was an investigation of the applicant’s own social media accounts.
The social media report from AB Investigations contained links to the applicant’s own social media pages. Dr Kinny appeared to have been provided with a statement from the applicant addressing the reports and he provided an opinion not too dissimilar from that expressed in Dr Robinson’s supplementary report.
Mr Adhikary referred to the case of Kubovic v HMS Management Pty Ltd[1] where surveillance footage of a worker performing activities at the gym had not been disclosed to the medicolegal experts. Mr Adhikary submitted that Dr Robinson’s supplementary report was the only report based upon a correct factual foundation.
[1] [2015] NSWCA 315 (Kubovic).
Mr Adhikary submitted that what AB Investigations observed was inconsistent with the histories originally provided to the medicolegal experts. Based on Dr Robinson’s supplementary report, the Commission would not be satisfied on the balance of probabilities that the requisite causal relationship was established. The images and videos obtained were contrary to the information provided by the applicant during his initial examinations.
Mr Adhikary noted that the applicant had made submissions that Dr Robinson had extrapolated an opinion from the AB Investigations report. Mr Adhikary said that those submission ought not be accepted. Dr Robinson had formed the opinion that the activities undertaken were inconsistent with what the applicant told the doctor previously.

Mr Adhikary noted that the applicant had prepared a supplementary statement confirming that he undertook those activities. The applicant has not addressed his failure to provide a correct history to Dr Robinson initially.
A supplementary report was provided by Dr Kinny also. Dr Kinny provided a reserved opinion. He was asked to consider the report from AB Investigations and the supplementary report of Dr Robinson. Dr Kinny formed a similar view to Dr Robinson, commenting that the surveillance clearly indicated that the applicant was not being truthful and undertaking much more leisure activity than he stated.
Mr Adhikary submitted that Dr Kinny’s ultimate opinion would not satisfy the Commission that the applicant’s onus had been discharged in light of the other evidence on the issue of causation. Dr Kinny had not engaged with the exaggeration by the applicant and his failure to report his actual level of activity initially.

Mr Adhikary submitted that the Commission would not be satisfied on the balance of probabilities that causation was established. Dr McEntee had not provided any opinion on the surveillance material. Dr McEntee’s opinion was not based on a proper factual foundation. It was not known whether the surveillance material would have changed his opinion.

Applicant’s submissions in reply

Mr Gilbert distinguished the case of Kubovic on the basis that it was a work injury damages case and unlike this case, the medical practitioners had been shown the footage. In this case none of the doctors had seen the actual footage.
None of the doctors knew exactly how the relevant activities were performed or the range of movement demonstrated. The applicant’s statement evidence should be accepted. The applicant did not say he could not do the activities at all, rather he was doing them less.

Mr Gilbert submitted that there were some minor inconsistencies in the evidence but this was not unusual. It was not the doctor’s role to investigate matters of credit. Dr Robinson asked about kayaking and fishing but no investigations had been done at that date. Mr Gilbert queried how Dr Robinson was led to specifically ask about kayaking or fishing. It was not known what Dr Robinson was provided with when preparing his reports.
Mr Gilbert said Dr Kinny’s ultimate view should give the Commission satisfaction. Dr Kinny had accepted the worst of the applicant at face value but reached the same conclusion that there was no break in the causal connection.
Dr Kinny was the only doctor who had considered the radiological investigations before and after the incident. The pathology was black and white and did not lie. Dr Kinny showed a great deal of care and concern in preparing his report. The fact that he was prepared to accept a degree of exaggeration but remain satisfied based on the pathology of the causal relationship was significant.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act.
Section 60 of the 1987 Act relevantly provides:
“(1)    If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b)     any hospital treatment be given, or
(c) any ambulance service be provided, or
(d)     any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
It is the applicant who bears the onus of establishing on the balance of probabilities that proposed surgery is reasonably necessary as a result of the accepted injury on 30 May 2019 In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[2] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1 injury to the applicant’s right ankle and her cervical spine. 940] HCA 20; (1940) 63 CLR 691 at 712.”
[2] [2008] NSWCA 246.
A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[3], where Kirby P said at [461] (Sheller and Powell JJA agreeing):

“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[3] (1994) 10 NSWCCR 796 at [810].

His Honour said at [463]-[464]:

“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”

In the present case, there is no dispute that the applicant sustained an injury to his lumbar spine on 30 May 2019. Whilst some of the material in evidence, including the factual investigation report from AB Investigations, cast doubt over the mechanism of injury, the occurrence of injury was not disputed in any notice issued to the applicant prior to the commencement of these proceedings. Nor was any application made pursuant to s 289A(4) of the 1998 Act to rely on a dispute as to the occurrence of an injury to the lumbar spine on 30 May 2019 for the purposes of s 4 of the 1987 Act.
There is no doubt that the injury sustained was one in the nature of an aggravation or exacerbation of pre-existing lumbar spine pathology. Notwithstanding that the applicant denied any previous back injury in his first written statement, the clinical records attached to the ARD make clear that the applicant did suffer from symptoms at the lumbar spine which were investigated not long prior to the injury at work.
The primary issue in dispute is whether the surgery proposed by Dr McEntee is reasonably necessary as a result of that injury.
It is well established in the case law that a need for treatment can arise from multiple causes. In Murphy v Allity Management Services Pty Ltd Roche DP stated[4]:
“…That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[4] [2015] NSWWCCPD 49 at [57].

At one point, the medicolegal experts on both sides had expressed opinions consistent with the proposed procedure being reasonably necessary as a result of the work injury. The medicolegal expert qualified by the insurer, Dr Robinson, however, revised his opinion upon receipt of the reports prepared by AB Investigations.
The reports from AB Investigations, and in particular the social media search report dated 1 June 2020, were heavily criticised by the applicant’s legal representatives on the basis that the social media posts, including the videos and photographs described, were not actually attached to the report. The respondent has submitted that the videos and photographs were available through hyperlinks embedded within the report. The photographic and video evidence has not, however, been made available in documentary form to the Commission and I accept the applicant’s submission that it is unclear whether the videos and photographs were accessed by Dr Robinson.
This circumstance might raise questions as to the reliability of the descriptions set out in the AB Investigations report. It is significant, however, that the photos and videos described were posted on social media by the applicant himself. The applicant has prepared a supplementary report in which he confirms that the activities described in the AB Investigation report took place. The applicant has, however, provided additional context and explanation of his experience of those activities. Those activities include surfing, kayaking, boating and fishing as well as riding rollercoasters.
The activities in question took place in the period after the work injury but prior to the request for surgery by Dr McEntee.
Based on the information contained in the AB Investigation reports, Dr Robinson ultimately expressed uncertainty as to whether the incident of 30 May 2019 had caused any injury or continuing problems. Although Dr Robinson accepted that the applicant may have suffered an exacerbation of his lumbar symptoms as a result of the injury, Dr Robinson formed the view that the applicant no longer appeared to be suffering from the effects of that injury and any exacerbation had ceased. As a consequence, the operation proposed by Dr McEntee was no longer justified.
In giving this opinion, Dr Robinson has not, however, addressed the results of the EMG studies performed by Dr Bonev on 19 February 2020, which revealed neurophysiological evidence of chronic bilateral L5 nerve root dysfunction. Nor did he address the lumbar spine discography performed on the same date. The report of the discography described a severe disc disruption with annular fissuring and posterior full-thickness annular tear at L4/5. The discography produced a pain score of 8/10. These investigations were performed after the applicant was observed performing the activities of kayaking, surfing and riding rollercoasters.
The results of these investigations are consistent with the applicant’s evidence of his experience of pain and the symptoms described to the applicant’s various treating practitioners. These investigations formed the basis of Dr McEntee’s recommendation to move on from conservative management and proceed with surgery.
It has not been suggested by any doctor involved in this case that the pathology shown in these investigations was caused by any of the activities described in the AB Investigations reports. Although the applicant’s own evidence confirms that these activities and other activities including, for example, mopping aggravated his symptoms temporarily there is no qualified medical opinion to suggest that these activities had resulted in the need for surgery.
As noted by Mr Gilbert in his submissions at arbitration, the activities described in the AB Investigations report took place after the MRI scan of 27 August 2019. Both Dr McEntee and the applicant’s medicolegal expert, Dr Kinny have noted that this scan revealed a central disc protrusion at L4/5 in association with disc desiccation.
Dr Kinny has gone a step further and undertaken a comparison between the MRI scan dated 27 August 2019 and a scan previously undertaken on 7 March 2018. Dr Kinny said he had been able to compare the actual scan images electronically through his local radiology practice. Dr Kinny formed the impression that the L4/5 disc prolapse was larger after the injurious event than it was before.
The information that the applicant had been undertaking the activities described in the AB investigation report caused Dr Kinny to formed the view that the applicant had not been truthful in reporting the extent of the activities he had been able to engage in. On the basis of the same information, Dr Kinny suggested that the applicant’s alleged incapacity to perform workplace activity ought to be questioned. Importantly, however, Dr Kinny appropriately distinguished the question of the applicant’s capacity for work from the question of whether treatment proposed by Dr McEntee was reasonably necessary. Dr Kinny remained of the view that the proposed surgery was reasonably necessary having regard to the objective evidence of an L4/5 disc injury.
The respondent has submitted that less weight would be given to the opinion of Dr Kinny on the basis that he did not adequately engage with the applicant’s failure to report his actual level of activity initially. The difficulty with this submission is that, as noted by Mr Gilbert, Dr Kinny accepted that the applicant had not been truthful and that his reported ability to undertake certain activities ought to be questioned. Dr Kinny’s opinion was ultimately founded upon the objective, radiological evidence. Dr Robinson on the other hand has failed to engage with the radiological evidence at all in giving his supplementary report.
The respondent has also submitted that Dr McEntee’s recommendation for surgery would not be accepted as he had not been provided with the evidence of the applicant’s ability to engage in recreational activities as described in the AB Investigations reports. Whilst that appears to be an accurate submission I am not persuaded that it would result in any alteration of Dr McEntee’s recommendation for surgery. Dr McEntee’s decision to recommend the surgery appears to have been predicated on the EMG and discogram results together with the applicant’s reports of ongoing symptoms.
The treating medical evidence before me indicates that the applicant had disclosed at least to his exercise physiologist that he was regularly doing physically demanding activities such as kayaking notwithstanding his injury. The applicant reported that he was able to do such activities but knew they would make him feel worse for several days afterwards. The applicant has explained that he had been motivated to participate in such activities despite knowing they would result in an increase in his symptoms in order to engage with his family and improve his mental health.
The applicant has consistently reported symptoms impacting on his quality-of-life and ability to engage in his normal occupation and recreational pursuits since the time of the injurious event to his treating doctors. I accept the submission made by Mr Gilbert that it is highly unlikely that a man of the applicant’s age, with a young family would submit to the risky and invasive surgical procedure proposed by Dr McEntee were his symptoms not genuine.
For all of these reasons, I prefer the opinion provided by Dr Kinny in his supplementary report to that of Dr Robinson. Having regard generally to the considerations set out in Diab v NRMA Ltd[5] and Rose v Health Commission (NSW)[6], I am satisfied that the surgery proposed by Dr McEntee is reasonably necessary as a result of the injury on 30 May 2019.
[5] [2014] NSWWCCPD 72.
[6] [1986] NSWCC 2; (1986) 2 NSWCCR 32.
There will be an order that the respondent pay the costs of and incidental to the proposed L4/5 total disc replacement surgery in accordance with s 60 of the 1987 Act.

[2021] NSWPIC 260

26 July 2021