Tran Duy v Costco Wholesale Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Tran Duy v Costco Wholesale Australia Pty Ltd [2022] NSWPIC 463
APPLICANT:	Kingston Tran Duy
RESPONDENT:	Costco Wholesale Australia Pty Ltd
Member:	Michael Wright
DATE OF DECISION:	19 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for proposed L4/5 microdiscectomy; dispute as to whether there was radiculopathy for which treatment was proposed; consideration of Rose v Health Commission (NSW), Margaroff v Cordon Blue Cookware Pty Ltd and Diab v NRMA Ltd; Held — proposed surgery is reasonably necessary as a result of injury in course of employment on 27 March 2020.
determinations made:	The Commission determines: 1. L4/5 microdiscectomy proposed by Dr Damodaran (the proposed surgery) is reasonably necessary as a result of injury on 27 March 2020 arising out of or in the course of the applicant’s employment with the respondent. The Commission orders: 2. The respondent to pay the costs of and related to the proposed surgery in accordance with section 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute dated 21 March 2022 (the application), Mr Kingston Tran Duy (the applicant) claimed future treatment expenses for an L4/5 microdiscectomy and ancillary expenses, as recommended by Dr Damodaran, as a result of injury on 27 March 2020 arising out of or in the course of his employment with Costco Wholesale Australia Pty Ltd (the respondent).
In a s 78 notice dated 16 November 2021, the workers compensation insurer, the GIO, disputed liability for the proposed surgery, as recommended by Dr Damodaran, as not being reasonably necessary, based upon the opinion of Dr YK Lee.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

At the conciliation/arbitration hearing of this matter on 17 July 2022, the applicant was represented by Ms Warren of counsel, instructed by Mr Lam, solicitor, and the respondent by Mr Hunt of counsel, instructed by Mr Krieg, solicitor. The applicant was also present, and was assisted by an interpreter in the Vietnamese language.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents,
(b)    Reply and attached documents, and
(c)    Applications to Admit Late Documents dated 25 May 2022 and 8 July 2022.

Oral evidence

There was no oral evidence.

The applicant’s statements

The applicant provided statements dated 23 July 2020 and 26 April 2022.
In his statement dated 23 July 2020, the applicant said that at the time of his injury on 27 March 2020 he felt a pain in his lower back area and on the right side and he also felt pins and needles in his left leg.
In his statement dated 26 April 2022, the applicant stated that he currently feels an increase in his back pain if he tries to walk straight and normally. He said that because of his back pain he had been walking with his body leaning forward, his lower back tensed and limping by putting more pressure on his right side to manage his low back pain and symptoms from his left leg, including pain, pins and needles. He said that there were occasions when he feels an electric type sensation going from his lower back down his left leg while he is walking and when this happens he loses balance and he has to stop to find a rail or support to hold himself up. He stated that he feels scared to walk normally after this sensation so he slows down and walks in a way that helps him manage his back pain and his left leg pain by keeping his back tense, leaning forward and limping on his right leg to spare his left leg.
The applicant stated that Dr Nguyen, his general practitioner (GP) referred him for an MRI scan of his back which he had on 15 July 2020 and he also referred the applicant to Dr Sheridan. He saw Dr Sheridan on 29 July 2020, the recommended a bone scan and an MRI scan of the neck, which he underwent in August 2020. On review of the scans in August 2020, Dr Sheridan recommended continuation with hydrotherapy and physiotherapy.
The applicant recounted his physiotherapy treatment, initially twice per week but eventually reducing to once per week. He also was treated by an exercise physiologist once per week. The applicant said that he had two injections to his back, the first on 2 November 2020, which did not help at all, and the second on 2 August 2021, which helped with his lower back pain for one week and then the pain came back.
The applicant stated that he saw Dr Manohar, pain management specialist, on 3 February 2021. He said that Dr Manohar proposed a pain management plan, which, however, was rejected by the insurer.
Dr Nguyen referred the applicant to another neurosurgeon, Dr Damodaran, whom he saw on 14 July 2021. The applicant stated that Dr Damodaran recommended back surgery. The applicant said that he told Dr Damodaran that he wanted to have the surgery.
The applicant stated that he was referred to Prof Owler, whom he saw once. He was also referred to a pain management specialist, Dr Nazha, whom he consulted three times.
The applicant also stated that Dr Nazha prescribed Neurontin, Arcoxia and TENS machine. He said that, on the recommendation of Dr Nazha, he underwent another injection on 24 March 2022 which was a CT guided pulsed radiofrequency ablation to his back. He saw Dr Nazha on 7 April 2022.
The applicant said that he saw Dr Damodaran again on 11 April 2022, who again recommended surgery. The applicant stated that he wished to proceed with the surgery as he is in a lot of pain and he wants a more durable solution to his problem than pain management. He stated that he understands the risks and benefits of the surgery and wishes to proceed. He stated that he feels constant pain in his lower back, which goes down his left leg and he also feels pins and needles in his left leg as well. He stated that he was currently taking medication in the form of Neurontin, one per day, Panadeine Forte, two per day, and Arcoxia, one per day.

Scans

A CT scan of the lumbar spine report dated 15 June 2020 concluded with the impression that there were multilevel degenerative changes, an L5/S1 disc extrusion and possible impingement of the exiting L5 nerve root.
An MRI scan of the lumbar spine report dated 15 July 2020 concluded with the impression that there were degenerative disc space changes and facet joint degenerative changes and at the L4/L5 level there was a disc protrusion extending to the lateral recess and potentially resulting in impingement of the left L5 nerve root.

Dr Nguyen

In a handwritten response to a “NTD case management review” issued by GIO, dated 17 July 2020, the applicant’s condition was diagnosed by Dr Nguyen as L5/S1 disc herniation with impingement of the right L5 nerve root.

A/Prof Sheridan

In a treatment report to Dr Nguyen dated 30 July 2020, A/Prof Sheridan, neurosurgeon, he noted lower back pain and pain, paraesthesia and numbness down the left leg. A/Prof Sheridan noted an MRI scan of the lower back, which showed disc bulging particularly at L4/5 and L5/S1 “with nerve compression which may well be the cause of his symptoms”. He arranged for an MRI scan of the cervical and thoracic spines and a bone scan.
In a treatment report to Dr Nguyen dated 20 August 2020, A/Prof Sheridan reviewed the MRI scan and bone scan. A/Prof Sheridan noted that the bone scan showed damage in the cervical, thoracic and lumbar spine “entirely consistent with his injury and his ongoing symptoms”. A/Prof Sheridan stated that at the moment he did not think that the applicant needed to consider surgery and he should look again at exercise rehabilitation and discuss hydrotherapy and other treatments with the physiotherapist and he may need to see a pain management specialist if he did not settle.

Dr Damodaran

In a treatment report to Dr Nguyen dated 16 July 2021, Dr Damodaran, neurosurgeon and spine surgeon, noted that he reviewed the applicant on 14 July 2021. He noted presentation of back pain and intermittent left-sided leg pain in the L5 distribution, and also intermittent right-sided leg symptoms. Dr Damodaran, cortisone injection and physiotherapy with minimal improvement. He noted the lumbar spine MRI demonstrated Modic changes around the
L4/5 disc space with loss of disc height at that level and also a disc prolapse with evidence of left-sided L5 nerve root compression and lateral recess. Dr Damodaran was of the opinion that the applicant had left L5 radiculopathy due to an L4/5 disc prolapse and subsequent nerve root compression. He noted the applicant had failed conservative management and was of the opinion that he would benefit from L4/5 microdiscectomy, which the applicant was happy to proceed with. In a letter of the same date addressed to the GIO, Dr Damodaran requested approval for L4/5 microdiscectomy.
In a letter to Dr Nguyen dated 4 November 2021, Dr Damodaran noted a recent Independent Medical Examiner (IME) assessment and that the request for a L4/5 microdiscectomy had been declined. He stated that he was quite surprised by this given that the applicant’s symptoms were fairly consistent with a radiculopathy and the microdiscectomy procedure “is mainly to deal with the left-sided severe neuropathic leg pain” and the imaging clearly demonstrated L4/5 disc prolapse and lateral recess stenosis affecting the L5 nerve root. He noted that conservative management had failed and a microdiscectomy at this level was a reasonable approach to improve the L5 radiculopathy.
In a report dated 11 April 2022 Dr Damodaran diagnosed discogenic back pain with left sided L5 radiculopathy. Dr Damodaran stated:
“Mr Tran has discogenic back pain with severe neuropathic left-sided leg pain. The back pain is due to the L4-5 disc and the leg pain is due to compression of L5 nerve root by the prolapse. An L4-5 microdiscectomy would result in improvement mainly in the left-sided L5 radicular pain.
…
Mr Tran has left-sided L5 radiculopathy. Imaging demonstrates an L5 disc prolapse with L5 nerve root compression. Mr Tran has tried and failed conservative management since the accident. He has tried physiotherapy, cortisone injections and pain management. All these treatment methodologies have not resulted in a meaningful improvement in pain. Hence, it is reasonable to consider surgery.
…
The proposed surgery should improve Mr Tran’s neuropathic leg pain and will improve his quality of life.”
Dr Damodaran noted that the applicant had tried conservative management since the injury in March 2020 and was of the opinion that no further conservative management was likely to improve symptoms. He noted that conservative management had failed, including chronic pain management.
Dr Damodaran was asked to comment on the report of Dr YK Lee. He stated
“There seems to be some confusion in Dr Lee’s report. Please note spinal stenosis is different to acute disc prolapse. Lumbar decompression surgery is performed for spinal stenosis. Spinal stenosis is generally an age-related degenerative disorder. A microdiscectomy is performed after an acute disc prolapse with nerve root compression.
…
I disagree with Dr Lee’s opinion. I feel that his opinion about a decompression surgery and spinal stenosis does not apply in Mr Tran’s condition. This is a microdiscectomy, which is an acute spinal condition. Also, it is important to note that decompression surgery does not work in lumbar spondylosis. Again it is an incorrect statement. Decompression surgery can work in chronic lumbar spondylosis such as in central canal stenosis, but once again Mr Tran does not have this pathology, hence any discussion about lumbar decompression surgery is irrelevant in Mr Tran’s case. Ongoing exercise and modification of daily activities will not result in any improvement in symptoms. Mr Tran has had the same pain for the last three years.
…
I disagree with Dr Lee’s opinion that surgery will not be effective. I feel that Dr Lee’s report about lumbar decompression surgery and microdiscectomy has created some confusion. A lumbar decompression surgery or laminectomy is performed in chronic lumbar spondylosis in elderly patients with lumbar canal stenosis. A microdiscectomy is an operation, which is performed after an acute disc prolapse resulting in nerve root compression. Mr Tran has suffered a work injury resulting in an acute disc prolapse causing nerve root compression. His symptoms and imaging are consistent…”

Prof Owler

in a report to Dr Nguyen dated 23 November 2021, Prof Owler, neurosurgeon, noted symptoms including lower back pain, which seems to be a little worse on the right side, and left lower limb pain with paraesthesia and numbness and “it had L5 and S1 qualities to it”. He noted the MRI scan with relatively minor changes in the facet joints, a small disc bulge at L4/5 “which does narrow the lateral recess at L4/5 on the left side may be contributing to his symptoms”. He stated
“I would not advocate him undergoing fusion surgery at this time. I think he requires an up-to-date MRI scan as the last MRI scan is now 12 months old. I will also arrange him to have a bone scan which he has not had in the past. In addition I have arranged him to see Dr Alan Nazha (pain management specialist) is at the moment I do think he could improve with his medications. I also would like to investigate whether there are other potential nonsurgical options available to him. I think he has to be realistic about the chances of fusion surgery providing a satisfactory outcome…”

Dr Nazha

Dr Nazha, pain physician and interventional pain specialist, provided treating reports to Prof Owler and to Dr Nguyen.
In his initial treating report to Prof Owler dated 14 December 2021, Dr Nazha commented on two MRI scans. He noted that the first MRI scan showed a small left-sided disc protrusion at L4/5 and the more recent repeat MRI scan, referred by Prof Owler, also confirmed a mild disc herniation at L4/5 “but no significant nerve root compression and only minor facet joint changes”.
Subsequent reports by Dr Nazha to Dr Nguyen outlined treatment, including medication, TENS machine and CT guided pulsed radiofrequency ablation to the left L5.
In a report to Dr Nguyen dated 5 May 2022, Dr Nazha noted that the applicant “does not have pain that is typically radicular anymore and is more of a pain that arises from his lower back, buttock and then thigh… He still does intermittently have some dysaesthesias in his foot, however, it does not appear to be in the same vicinity as previously”.

Dr Matthew Giblin

Dr Matthew Giblin, orthopaedic surgeon, provided medico-legal reports to the applicant’s solicitors.
In his report dated 29 November 2021, Dr Giblin noted reports of investigations, including a CT of the lumbar spine dated 15 June 2020, MRI lumbar spine dated 15 July 2020 and bone scan dated 4 August 2020. In that report, Dr Giblin stated that he was unable to complete many aspects of his report until he had the opportunity to review and the applicant had a further opinion from Dr Owler. He was of the opinion that the applicant had an injury to the L4/5 disc which accounted for the left-sided sciatica. He was unable to comment as to surgery at that time.
In his report dated 13 December 2021, Dr Giblin noted the surgical intervention proposed by Dr Damodaran, but the applicant was still awaiting a further opinion from Dr Owler. He was of the opinion that clinically, the applicant had irritation of his nerve root, although it was unclear as to whether there were adhesions from the original disc protrusion or whether he now had irritation of the nerve root from the tear in the annulus. He stated “I agree with D Damodaran; in view of his symptoms and signs of radiculopathy, I think it is worthwhile for him to undergo a left-sided L4/5 microdiscectomy to explore the nerve root”. Dr Giblin was of the opinion that the applicant had both symptoms and signs of nerve root irritation and he believed that it required exploration. Dr Giblin also hoped that the proposed treatment may help with the left-sided leg pain (as corrected in his short supplementary report of 20 June 2022) but it was unlikely to do anything for the low back pain. He stated that “if we can improve his leg pain, it may improve his ability to mobilise and stabilise his low back pain and hence return to some form of work that doesn’t involve repetitive bending or heavy lifting”. Dr Giblin considered that the microdiscectomy was appropriate and the acceptance of microdiscectomy in the presence of sciatica “is considered reasonable and necessary”.
In relation to the reports of Dr YK Lee, Dr Giblin stated
“…I agree with Dr. Kai Lee that this gentleman does not have spinal stenosis, but he does have radiculopathy, as evidenced by decreased straight leg raising and decreased LS sensation. The disc prolapse I agree is not large; there is an annular tear and as mentioned above, as there is evidence of radiculopathy, I feel the nerve root requires exploration. He mentions that microdiscectomy does work best where there is a disc prolapse towards the symptomatic side and this gentleman did initially have a left sided L4/5 disc, he does have a skew now to the left side, he does have an annular tear and he does have left sided symptomatology…
…
…I agree with him that decompression surgery doesn't work in chronic lumbar spondylosis for low back pain, but if they have symptoms of radiculopathy of one nerve root, then it does work…
…
…This gentleman does have radiculopathy. I feel he requires a microdiscectomy. The results of surgery will depend upon the operative findings. It may be that the injury caused damage to the nerve root which is not resolvable, but the only way to determine that is to explore the nerve root to see if there is a causative finding, such as adhesions. There is always a ten percent chance that the M.R.I. is incorrect and sometimes it does miss the pathological changes. This gentleman has symptoms of radiculopathy that requires exploration”.

Dr Breit

Dr Breit, orthopaedic surgeon, examined and provided reports to the GIO. Having regard to regulation 44 of the Workers Compensation Regulation 2016, these reports were admitted only with respect to history recorded within.
In his report dated 25 September 2020, Dr Breit noted that he had examined the applicant on 14 September 2020. He relevantly noted on examination that
“There was tenderness in the low back, he could flex to the bottom of the knees with relative greater loss of extension and lateral flexion three-quarters of the way down the thighs. Straight leg raising was bilaterally 60° with no evidence of sciatic nerve root irritability and neurological assessment of the upper and lower extremities revealed no abnormality other than diminished sensation involving the entire left leg.”

Dr Lee

Dr YK Lee, orthopaedic surgeon, provided a medicolegal report to the GIO dated 15 September 2021, and a supplementary report to the respondent’s solicitors dated 21 October 2021.
In his report dated 15 September 2021, Dr Lee noted that the consultation was conducted by way of a telehealth assessment via zoom conference. In his supplementary report dated 21 October 2021, in response to a question regarding the report of Dr Damodaran and the lumbar spine MRI scan in which he was asked to consider whether the worker is disc prolapse was significant enough to warrant the proposed microdiscectomy, Dr Lee stated that he had not examined the applicant first-hand and
“According to Dr Breit who examined him personally on 14/09/2020, SLR was 60° on both sides. There was diminished sensation involving the entire left leg rather than following a particular dermatome. From the MRI report description, the L4/5 disc prolapse was very subtle. I am not convinced L4/5 microdiscectomy can produce the desired result.”

Returning to the report dated 15 September 2021, Dr Lee noted that he had reviewed “all the attached documents”, although he did not identify said documents. Dr Lee noted a history of injury to the back and pain radiating to the left leg and numbness in the foot, currently having physiotherapy and exercise therapy every week with pain continuing after treatment. He noted temporary relief after physiotherapy and consultations with Dr Sheridan and Dr Damodaran. Dr Lee also noted injections to the applicant’s back twice, and the first did not help and the second helped for only a few days. He noted surgery recommendation by Dr Damodaran, although he did not at that point note the specific details of the proposed surgery. He noted the applicant still has pain in his back radiating to the left leg. He noted on observation through the WebCam the applicant could flex his back to about 30° and he held the lumbosacral spine rigid during flexion and lateral flexion to the left was more restricted than to the right and extension was also restricted.
In respect of investigations, Dr Lee noted that he could not see the images of the films and there were no formal reports. He also noted the attached medical reports, which he did not identify, reported on a lumbar spine MRI of 15 June 2020, another dated 15 July 2020 and a bone scan dated 4 August 2020. Dr Lee diagnosed “injury to the LS spine with injury to intervertebral disc(s) resulting in back pain and left sciatica”.
In relation to treatment recommendations, Dr Lee stated “given all the available information, it is best for Mr Tran to continue with exercise therapy and remain active. I would not recommend surgery or even the treatment suggested by Dr Manohar.”
Dr Lee also provided comment and opinion in respect of L4/5 decompression surgery and spinal fusion. He was of the opinion that “in general, decompression surgery does not work in chronic lumbar spondylosis” and “in general, decompression is not a treatment modality to treat chronic lumbar spondylosis. Fusion is a better alternative”. He noted that the alternative is to continue with non-surgical treatment and the applicant should continue with exercise therapy and modification of daily activities, and he may also try hydrotherapy if it has not been tried before.
In response to a question as to the actual or potential benefits on improving clinical outcomes and function for the applicant “following the recommended surgery compared to alternative and best practice treatment options”, Dr Lee commented that “I do not think Mr Tran will be able to return to work after the operation”. In respect of prognosis, Dr Lee stated “I do not think the recommended surgery can improve Mr Tran’s ability to return to work”.
In response to a request to comment if he believed “the recommended surgery is indicated for the work-related aggravation or if they would have required it at this stage in their life regardless of the work-related injury”, Dr Lee responded that “I have to answer this question from 2 aspects. I do not believe the recommended surgery is indicated for the work related aggravation. If, however, Mr Tran requires surgery, he would not have required it at this stage of his life if not because of the work related injury.”
In response to a question as to whether he considered the “recommended spinal decompression surgery” reasonably necessary to treat the work-related injury, Dr Lee was of the opinion that
“In my opinion, I do not consider the recommended spinal decompression surgery is reasonably necessary to treat the work related injury in Mr Tran's case. Microdiscetomy works best in situation where there is a disc prolapse towards the symptomatic side. There is no or little facet degeneration and the other levels of the spine are healthy. I am not satisfied this is the case for Mr Tran. I agree with Dr Breit's opinion.”

Reasons

The only dispute in this matter was whether the surgery proposed by Dr Damodaran is reasonably necessary as a result of injury on 27 March 2020.
In relation to Dr Manohar, I decline to make a finding as to whether his opinion would not have, or would have, assisted either party. Dr Breit made detailed reference to treatment proposed by Dr Manohar. The applicant referred to him as a pain management specialist. Dr Lee did not detail the documents provided to him. It was unclear as to whether, and why or why not a report or reports of Dr Manohar could have been provided by either party.
In relation to the reports and opinion of Dr Lee, in my view he did not explain whether and how his discussion of decompression surgery related to the microdiscectomy surgery recommended by Dr Damodaran. This difficulty was compounded by the absence of detail about which documents had been supplied to him. Dr Lee was also of the opinion that he was not convinced that the proposed microdiscectomy could produce the desired result. He did not discuss what the desired result might be, nor did he provide an opinion that the proposed surgery was not reasonably necessary, as he simply stated that he was not convinced that it could produce the desired result. An outcome that may be less than that desired by the applicant may still be appropriate treatment. This was not discussed by Dr Lee in his reasons. In contrast, both Dr Damodaran and Dr Giblin in their reasons pointed to the proposed surgery improving or helping with leg pain.
Dr Lee, as noted above, in providing his reasons in this regard agreed with the opinion of Dr Breit. However, Dr Lee did not identify what aspect of the opinion of Dr Breit he agreed with, particularly having regard to the fact that Dr Breit in July 2020 provided his opinion before the recommendation for surgery was given by Dr Damodaran in July 2021.
Indeed, Dr Damodaran in his report quoted above pointed to the confusion in the report of Dr Lee in respect of his discussion of decompression surgery and the recommendation by Dr Damodaran for a microdiscectomy.
The respondent submitted that the Commission would not be satisfied that there was a true L4/5 radiculopathy and hence the proposed surgery was not reasonably necessary. In this regard, as noted above in respect his later report, Dr Lee noted the examination by Dr Breit, which was done in September 2020 with notation of straight leg raising and diminished sensation of the entire left leg rather than following a particular dermatome and MRI report of a very subtle L4/5 disc prolapse. Also relied upon by the respondent was the opinion of Dr Nazha in May 2022 that the applicant did not have pain that was “typically radicular anymore” and that “there has been a subtle change in the pattern of his pain”.
I do not accept this submission. In relation to Dr Nazha, his report of 5 May 2022 was a treatment report to Dr Nguyen and, appropriately, was not an explanation of a definitive diagnosis of whether or not there was radiculopathy. Thus, while noting pain that did not “appear to go beyond that of his knee”, Dr Nazha also noted that intermittently there was still some dysaesthesias in the foot but it did “not appear to be in the same vicinity” as previously. In my view, this was not a diagnosis that there was no radiculopathy, rather that in his view it was not typically radicular by that point in time. These observations were expressed within the overall context that there had at that time not been any significant change in the applicant’s pain following the radiofrequency ablation. In my view, it is necessary to have regard to the opinions of the other specialists referred to above.
In having regard to the opinions of the other specialists referred to above, in my view an important consideration is the contextual and chronological order in which they are provided.
Following the CT scan of the lumbar spine dated 15 June 2020 referred to above, Dr Nguyen in his handwritten report of 17 July 2020 diagnosed an L5/S1 disc herniation with impingement of the right L5 nerve root. On 30 July 2020, A/Prof Sheridan, neurosurgeon, noted the MRI showed disc bulging particularly at L4/5 and L5/S1 “with nerve compression which may well be the cause of his symptoms”. On 20 August 2020, A/Prof Sheridan noted that the bone scan showed damage relevantly in the lumbar spine “entirely consistent with his injury and his ongoing symptoms”.
Then, on 20 September 2020, Dr Breit on examination noted no evidence of sciatic nerve root irritability and neurological assessment of the upper and lower extremities revealed no abnormality other than diminished sensation involving the entire left leg.
However, on 20 July 2021, Dr Damodaran noted the lumbar spine MRI demonstrated Modic changes around the L4/5 disc space with loss of disc height at that level and also a disc prolapse with evidence of left-sided L5 nerve root compression and lateral recess. Dr Damodaran was of the opinion that the applicant had left L5 radiculopathy due to an L4/5 disc prolapse and subsequent nerve root compression.
I prefer the opinions of the treating neurosurgical specialists, A/Prof Sheridan and Dr Damodaran, whose opinions were provided “before” and “after”, to the opinion of Dr Breit. A/Prof Sheridan was of the opinion that the damage to the applicant’s lumbar spine, with nerve compression, was consistent with his injury and ongoing symptoms. One year later, Dr Damodaran was of the opinion that there was relevant disc damage, a prolapse, and subsequent nerve root compression. Dr Damodaran also provided specific reasoning, which I prefer, in his discussion of the report of Dr Lee, which had in turn relied upon the findings of Dr Breit, as to why the symptoms were consistent with a radiculopathy. Prof Owler did not express a concluded view on radiculopathy, although he did note that left lower limb pain with paraesthesia and numbness “had L5 and S1 qualities to it”.
Further, Dr Giblin was also of the view that the applicant had radiculopathy, that there was nerve root irritation, although he was not able to say whether it was due to an annular tear or from adhesions from the original prolapse. Dr Giblin also provided detailed reasons for his diagnosis of radiculopathy and nerve root irritation.
For these reasons, I prefer the opinions of Dr Nguyen, A/Prof Sheridan, Dr Damodaran and Dr Giblin to that of Dr Lee, in relation to the diagnosis of radiculopathy and nerve root impingement. The opinion of Dr Nazha should also be placed within this context, particularly having regard to the qualified or more generalised nature of his observations as I have noted above.
As to the recommendation for microdiscectomy surgery by Dr Damodaran, the opinion of A/Prof Sheridan that surgery was not recommended was made at a time before further conservative treatment and before the recommendation of Dr Damodaran. Similarly, the opinion of Prof Owler that fusion surgery was not recommended was not an opinion with respect to the microdiscectomy surgery recommended by Dr Damodaran. Prof Owler also recommended that the applicant undergo pain management by Dr Nazha, which the applicant duly underwent, thereby further pursuing unsuccessful conservative treatment. For those reasons, I do not prefer the views of A/Prof Sheridan and Prof Owler regarding surgery to those of Dr Damodaran and Dr Giblin. For the reasons given above, I also do not prefer the opinion of Dr Lee to those of Dr Damodaran and Dr Giblin in this regard.
There were no submissions, in my view appropriately, as to any other chain of causation issue.
There were also no submissions, again in my view appropriately, in keeping with decisions including Rose v Health Commission (NSW)[1] (Rose), Margaroff v Cordon Blue Cookware Pty Ltd[2] (Margaroff) and Diab v NRMA Ltd[3] (Diab). Having regard to the decisions in Rose and Diab, I am satisfied that the proposed treatment is appropriate, based upon the opinions of Dr Damodaran and Dr Giblin, that alternative conservative treatment has been exhausted, that there is no objection to the cost of the treatment, that the treatment is potentially effective, based upon the opinions of Dr Damodaran and Dr Giblin.
[1] (1986) 2 NSWCCR 32.
[2] (1997) 15 NSWCCR 204.
[3] [2014] NSWWCCPD 72.
In my view, the heads of consideration in Rose have been satisfied. As was observed by Campbell CJ in Margaroff, when considering the factors listed by Burke J in Rose, “I accept those topics as useful heads for consideration, although the essential question remains whether the treatment was reasonably necessary”. In my view, the surgery proposed by Dr Damodaran is reasonably necessary.

[2022] NSWPIC 463

19 August 2022