Tunks v Patrick Stevedores Holdings Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tunks v Patrick Stevedores Holdings Pty Ltd [2023] NSWPIC 618
APPLICANT:	Russel Tunks
RESPONDENT:	Patrick Stevedores Holdings Pty Ltd
MEMBER:	John Turner
DATE OF DECISION:	17 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; sections 4, 15, 16 and 60; injury to the lumbar spine disputed; proposed surgery to the lumbar spine dispute disputed; Kooragang Cement Pty Ltd v Bates, Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear, Military Rehabilitation and Compensation Commission v May, Ariton Mitic v Rail Corporation of NSW, Perry v Tanine Pty Ltd t/as Ermington Hotel, Rail Services Australia v Dimovski, P & O Berkeley Challenge Pty Ltd in the interest of HIH Winterthur Workers Compensation (NSW) Pty Ltd v Alfonson, Rose v Health Commission (NSW), Diab v NRMA Limited, Murphy v Allity Management Services Pty Ltd considered and applied; Held – on the balance of probabilities the applicant sustained injury to his lumbar spine being an aggravation and exacerbation of a disease condition pursuant to section 4(b)(ii) with a deemed date of injury of 6 March 2023; the L5/S1 minimally invasive transforaminal lumbar interbody fusion surgery proposed by Dr Diwan is reasonably necessary as a result of the work-related injury which the applicant has sustained to his lumbar spine.
DETERMINATIONS MADE:	The Commission determines: 1. That the applicant sustained injury to his lumbar spine as defined by s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act) with a deemed date of injury of 6 March 2023. 2. That the L5/S1 minimally invasive transforaminal lumbar interbody fusion surgery proposed by Dr Diwan is reasonably necessary treatment as a result of the injury sustained to the lumbar spine within the meaning of s 60 of the 1987 Act. The Commission orders: 3. Pursuant to s 60 of the 1987 Act the respondent is ordered to pay the costs of and ancillary to the L5/S1 minimally invasive transforaminal lumbar interbody fusion surgery proposed by Dr Diwan.

STATEMENT OF REASONS

BACKGROUND

Russel Tunks, the applicant, commenced employment with Patrick Stevedores Holdings Pty Limited, the respondent, in February 1989. In the course of his employment with the respondent the applicant’s duties have included those of a plant fitter, straddle crane operator, reach stacker operator, quay crane operator and team leader.
The applicant has brought proceedings in the Personal Injury Commission (Commission) in which he alleges that he sustained injury to his lumbar spine:
i)     on 13 February 1997 when whilst in the course of his employment with the respondent he lifted a heavy tyre into the tray of a breakdown truck;
ii)     on 6 October 2006 as a result of driving a straddle crane over potholes, and
iii)    as a result of the nature and conditions of his employment with the respondent which involved constant and repetitive lifting and bending, operating straddle cranes, operating quay cranes, operating reach stackers and working as a team leader between 13 February 1997 and 6 March 2023.
The applicant seeks pursuant to s 60 of the Workers Compensation Act 1987 (1987 Act) the payment of the costs of and associated with L5/S1 minimally invasive transforaminal lumbar interbody fusion surgery recommended by Dr Diwan.
The respondent disputes:
i)     that the alleged injury to the applicant’s lumbar spine arose out of his employment with the respondent;
ii)     that the alleged injury to the applicant’s lumbar spine was suffered in the course of his employment with the respondent;
iii)    that the applicant’s employment with the respondent was a substantial contributing factor to the alleged lumbar spine injury;
iv)    that the applicant’s employment with the respondent is the main contributing factor to the contraction of a disease injury to the lumbar spine;
v)     that the applicant’s employment with the respondent is the main contributing factor to the aggravation, acceleration exacerbation and / or deterioration of a disease injury to the lumbar spine, and
vi)    that the L5/S1 minimally invasive transforaminal lumbar interbody fusion recommended by Dr Ashish Diwan is reasonably necessary as a result of the alleged lumbar spine injury.

ISSUES FOR DETERMINATION

The following issues are in dispute:
i)     whether the applicant’s alleged injury arose out of employment with the respondent;
ii)     whether the applicant’s alleged injury was received in the course of his employment with the respondent;
iii)    whether employment was a substantial contributing factor to the applicant’s alleged injury;
iv)    whether employment was the main contributing factor to the contraction of a disease injury;
v)     whether employment was the main contributing factor to the aggravation, acceleration, exacerbation and / or deterioration of a disease injury, and
vi)    whether L5/S1 minimally invasive transforaminal lumbar interbody fusion recommended by Dr Ashish Diwan is reasonably necessary as a result of an injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 20 October 2023. Mr Craig Tanner, counsel, instructed by Ms Jane Awad, solicitor, appeared for the applicant, who was present. Mr Lachlan Robison, counsel, appeared for the respondent, instructed by Ms Eloise Cotchett. The proceedings were conducted in-person. 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;
(c)    applicants Application to Admit Late Documents dated 1 September 2023 and attached documents, and
(d)    respondents Application to Admit Late Documents dated 12 October 2023 and attached documents.
There were no objections to the Applications to Admit Late Documents filed by both parties being admitted into evidence. By consent the documents attached to the respondent’s Application to Admit Late Documents dated 12 October 2023 and the applicant’s Application to Admit Late Documents dated 1 September 2023 were admitted into evidence.

Oral evidence

Neither party sought leave to adduce oral evidence.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded.

FINDINGS AND REASONS

Consideration and findings

Injury

The applicant alleges that he sustained injury to his lumbar spine:
i)     on 13 February 1997 when whilst in the course of his employment with the respondent he lifted a heavy tyre into the tray of a breakdown truck;
ii)     on 6 October 2006 as a result of driving a straddle crane over potholes, and
iii)    as a result of the nature and conditions of his employment with the respondent which involved constant and repetitive lifting and bending, operating straddle cranes, operating quay cranes, operating reach stackers and working as a team leader between 13 February 1997 and 6 March 2023.
Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act.
Section 4 of the 1987 Act defines ‘injury’ and relevantly states:
“In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, …”

The applicant bears the onus of proving injury.

Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
Injury simpliciter, or what is commonly referred to as a frank injury, requires an ascertainable or dramatic physiological change or disturbance of the normal physiological state: Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 (Kear). “Suddenness” is not a necessary requirement: Military Rehabilitation and Compensation Commission v May [2016] HCA 19 (May). Although “suddenness” may be relevant in distinguishing a physiological change from the natural progression of an underlying disease.
In respect to ‘disease injury’ the test of ‘main contributing factor’ involves a consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor: AV v AW [2020] NSWWCCPD 9. In a matter involving s 4(b)(ii), an “aggravation, acceleration, exacerbation or deterioration” of a disease, the issue is whether employment was the main contributing factor ‘to the aggravation, acceleration, exacerbation or deterioration of that disease’ and not to the overall pathology or the overall disease process: Ariton Mitic v Rail Corporation of NSW (Matter No 008497/2013 8 April 2014) (Mitic).
In Perry v Tanine Pty Ltd t/as Ermington Hotel [1998] NSWCC 14; (1998) 16 NSWCCR 253 (Perry) Burke CCJ held carpal tunnel syndrome to be a ‘disease’, saying:
“In general it seems to me that carpal tunnel syndrome is a failure of an area of the body to cope with repeated stress imposed upon it and reacts to that stress by developing swelling, pain and loss of function as a consequence. That seems to me to be classically a disease process. Where work is the source of the relevant stress it connotes to me that the worker has received injury either by the contraction or aggravation of a disease.”

It is the applicant’s evidence that he commenced employment with the respondent in February 1989 as a plant fitter and that he did not have any problems with his back prior to commencing employment. His duties as a plant fitter involved service maintenance and repair of the plant and equipment used by the respondent.[1]
[1] Application to Resolve a Dispute (ARD) pp 23-24.
It is the applicant’s evidence that his work duties as a plant fitter involved constant and heavy lifting and bending, working in confined spaces and at heights. He had to lift heavy items regularly such as toolboxes weighing between 60kg and 100kg. The lifts were often performed in pairs. He wore heavy toolbelts. He often performed oil changes on vehicles and frequently there would be no inspection pit available in which to change the oil which meant that he had to crawl under the equipment dragging a 44-gallon drum in to position adjacent to the oil sump. His work duties involved a lot of manual lifting and straining.[2]
[2] ARD p 23.
It is the applicant’s evidence that on 13 February 1997 he strained his back whilst at work when a wheel and tyre that he was lifting onto the back of a breakdown truck became snagged on the tray of the truck. The applicant went to the first aid room and recorded the injury in the accident book. It is the applicant’s evidence that he had continuing problems after that incident and reported a recurrence of back pain later in February 1997. On 5 August 1997 he suffered further low back pain which became progressively worse after lifting the front window out of a prime mover. He also reported this incident. It is the applicant’s evidence that the back pain which he experienced at that time was located in the same place as it is presently, namely at around his beltline or a bit below. The applicant is unsure if he had any time off work following these incidents.[3]
[3] ARD p 24.
It is the applicant’s evidence that in 1998 he transferred to work as a stevedore for the respondent.[4] From 1998 to 2006 he worked more or less full time as a straddle crane driver.[5]
[4] ARD p 24.
[5] ARD p 25.
It is the applicant’s evidence that the driving position in the straddle cranes was orientated sideways to the direction of travel. The driving position required him to twist his torso and back to the left when driving forwards, and to his right when travelling in reverse. Frequently he had to lean forward in his seat and look between his knees through the glass floor when picking up or lowering containers. The seats in the straddle cranes were frequently worn out. The foam cushioning was typically compressed and lacked any shock absorbing quality. The straddle cranes suspension was frequently worn out due to the pounding it received from being driven over the cracked and potholed surfaces at the terminal. It is the applicant’s evidence that in some areas there were pavers set into sand and in other areas there was concrete and asphalt. When driving the straddle cranes around the terminal, particularly when going around corners, the weight of the machine would move the pavers out of position. Travelling up and down the surfaces resulted in the pavers being either pushed aside or depressed creating large potholes. Any bumps from the road surface were transmitted directly up through the axel into the driver’s position in the cabin.[6]
[6] ARD p 25.
The applicant believes that as a consequence of driving the straddle cranes, he developed neck and back symptoms which he states he reported to the respondent on numerous occasions. He did not however report every occasion on which he experienced pain or suffered injury.[7]
[7] ARD pp 25-26.
It is the applicant’s evidence that in about 2005 his duties changed slightly. He worked for about 12 months, three days per week on the straddle cranes and two days per week operating quay cranes. In or about late 2006, due to difficulties with his eyesight, the applicant ceased operating both the straddle and quay cranes and was transferred to the position of reach stacker driver.[8]
[8] ARD p 26.
The applicant worked as a reach stacker operator until about 2011. It is the applicant’s evidence that his duties as a reach stacker operator required him to drive over uneven ground, railway lines and over depressions in the road surface. When the containers being carried by the reach stackers were being lowered or raised the operator was subjected to considerable shaking. The reach stackers also had very little give in their suspension. The applicant’s back problems continued whilst working as a reach stacker operator and at the time he reported several further incidents involving lower back pain.[9]
[9] ARD p 27.
It is the applicant’s evidence that after 2011 he began to work shifts as a team leader however, he continued to operate the reach stackers for about half the time. The applicant’s duties as a team leader were more sedentary than that of a reach stacker operator. The applicant ceased operating reach stackers in about 2021 and since then he has worked as a full-time team leader.[10]
[10] ARD p 27.
It is the applicant’s evidence that his back pain has continued over the years.[11]
[11] ARD p 27.
The respondents First Aid Employee Record[12] for the applicant records numerous entries by the applicant between 1997 and 30 March 2012 where the applicant has complained of back pain. The cause of the complaints includes the driving of reach stackers and straddle cranes with incidents including the hitting of potholes, uneven ground and faulty suspension. The records also record the incident on 13 February 1997 when the applicant sustained injury to his back lifting the tyre onto the breakdown truck.
[12] ARDi pp 47-67.
A WorkCover medical certificate dated 28 July 2005 certified the applicant as either unfit or fit for suitable duties between 28 July 2005 and 31 July 2005 due to low back strain caused by jarring from the machine which the applicant was driving over uneven surface.[13]
[13] ARD p 69.
On 28 November 2006 the applicant attended on Dr Anu Alexander. The clinical note from the attendance records that the applicant had jarred his back six weeks prior when driving a straddle crane at work when he hit a pothole and that the applicant had suffered previously with similar backaches all related to driving heavy machinery.[14]
[14] ARD p 86.
The applicant was certified unfit to work between 28 November 2006 to 2 March 2007 due to lower back strain caused by being jarred when the heavy machinery which he was driving hit a pothole.[15]
[15] ARD pp 71-76.
On 21 December 2006 the applicant attended on Dr Anu Alexander. The clinical note from the attendance records that the applicant had persisting lower back stiffness and slight ache.[16]
[16] ARD p 87.
The clinical notes from the applicant’s general practitioners record that the applicant attended in respect to lower back complaints on 18 January 2007,[17] 2 February 2007,[18] 2 March 2007.[19] Following 21 June 2007 the next entry, which is unrelated to the back, is on 7 November 2013. The applicant then attended in respect to his back on 27 February 2015,[20] 3 March 2015,[21] 19 March 2015,[22] 27 August 2015, 18 January 2016,[23] 3 November 2017.[24] The next consultation after 28 December 2017 is not until 13 December 2022 when the applicant again complained of lower back symptoms.[25] The applicant complained of back symptoms then on 30 December 2022[26] and 7 March 2023.[27] The clinical notes end on 22 May 2023.
[17] ARD p 87.
[18] ARD p 88.
[19] ARD p 88.
[20] ARD pp 89-90.
[21] ARD p 89.
[22] ARD pw 90.
[23] ARD p 91.
[24] ARD p 92.
[25] ARD p 93.
[26] ARD p 93.
[27] ARD p 94.
A document completed by the respondent on 30 March 2012 records that the applicant reported ongoing lower back pain on and off over the past few years due to driving of machinery.[28]
[28] ARD p 68.
On 3 March 2015 the applicant was referred by Dr Perter Chia to Dr Ashish Diwan in respect to L5/S1 disc protrusion with L5 radiculopathy which the referral records as a possible aggravation of a previous work-related injury.[29]
[29] ARD p 96.
On 26 March 2015 Dr Diwan reported to Dr Chia noting that the applicant’s symptoms had commenced in November 2014 and that about 12 years earlier as a consequence of work-related injuries the applicant had taken time off work and was on workers compensation and at that stage had been driving straddle cranes. Dr Diwan noted that the applicant’s work duties at that time of reporting required him to be supervising and driving most of the time.[30]
[30] ARD p 103.
On 30 January 2023 Dr Ashish Diwan reported to Dr Vahedeh Naseri that the applicant was suffering from lumbosacral pain and right anterolateral thigh burning sensation and left L5 distribution around the left ankle. Significantly Dr Diwan noted that the applicant reported that his symptoms had improved whilst he had been off work on holidays for two weeks[31] which is indicative that the applicant’s work duties were continuing to aggravate his back condition.
[31] ARD p 106.
On 22 February 2023 Dr Diwan reported to Dr Naseri “that the applicant’s back had been continuously painful for “numerous years.” Dr Diwan was reasonably sure that the L5/S1 disc was the cause of the pain.[32]
[32] ARD p 108.
Dr Vahedeh Naseri in a certificate of capacity dated 7 March 2023 certified the applicant with capacity for some type of work from 7 March 2023 to 7 April 2023 due to L5/S1 discopathy with a date of injury of 7 March 2003. The date of injury recorded would appear to be a typographical error given the date of the certificate of capacity and as the applicant is recorded as having been first seen at the medical practice on 7 March 2023.[33]
[33] ARD pp. 77-79.

Dr Anu Alexander in a response to a questionnaire that appears to have been completed on or about 30 March 2023 records that in the doctor’s opinion employment is the main reason for the injury noting that the applicant worked 35 to 60 hours per week, doesn’t do heavy exercise and had not suffered any trauma to his back.[34]
[34] ARD pp 100-102.
On 16 June 2023 Dr Diwan reported to the applicant’s solicitors.[35] Dr Diwan noted that the applicant had presented in 2015 with a reported work-related injury from November 2014 of low back pain and leg pain to the ankle. The diagnosis at that time was of an L5/S1 sequestrated herniation of nucleus pulposus with retrolisthesis. Dr Diwan also noted that in 2023 the applicant presented with lumbosacral pain with a burning sensation in the right thigh and pain around the left ankle. Dr Diwan observed that the symptoms were of similar distribution to that seen eight years prior. The doctor observed that a CT scan showed complete loss of disc height at L5/S1 with retrolisthesis and bilateral foraminal stenosis.
[35] ARD pp 114-115.
Dr Diwan expressed the opinion that the repetitive nature of the applicant’s employment with the respondent, which included a significant amount of heavy lifting, twisting, dragging, pulling and pushing, is a substantial factor contributing to or causing the injury which the applicant presented with in 2015, and again in 2023. In the opinion of Dr Diwan the degenerative disease at the L5/S1 level is attributable to the original injury, and the natural inflammatory degenerative process that occurs with a chronic injury over many years duration.

Dr Haig, orthopaedic surgeon, provided a report to the respondent dated 5 April 2023. Dr Haig records that the applicant referred to driving straddle cranes on which the suspension was “buggered”. That he started to get backache in 1988/89 which was intermittent at first. This would increase when the straddle cranes which he was driving hit a pothole. With time the applicant developed a constant dull low back ache. Dr Haig records that the applicant attended on his general practitioner (GP) in the 1990’s and was advised to stop driving that machine which he did. Dr Haig noted that at the time of examination the applicant was working as a rail team leader which did not appear to be as physically onerous.
Dr Haig diagnosed an age related degenerative L5/S1 disc and is of the opinion that the diagnosis is not consistent with any history of injury. Dr Haig does not believe that work has been a main or contributing factor to the applicant’s low back condition.
Dr Haig in a supplementary report dated 29 September 2023 confirmed his opinion that the applicant is suffering from a degenerative disease of the low back in the form of degenerative lumbar spondylosis which is age related and unrelated to his employment with the respondent.
Dr Millons, orthopaedic surgeon, provided a medico-legal report to the applicant dated 4 August 2023. Dr Millons records that the applicant’s work as a plant mechanic, servicing forklifts and cranes, could be heavy and demanding requiring a lot of bending, lifting and working in awkward and confined spaces.
Dr Millons also noted that whilst working as a straddle crane operator the applicant had a number of incidents of back pain. Dr Millons noted that the operation of the straddle cranes required the applicant to sit sideways to the direction of travel, that the applicant would have to lean forward and down to his left and hold that position whilst negotiating the various containers. The seats were old and had poor suspension. That driving over the uneven terrain on the waterfront caused jarring.
Dr Millons noted that the respondent’s first aid records for the applicant record multiple entries in respect to back complaints. Dr Millons also undertook a review of the treating medical records.
Dr Millons noted that the applicant continued to work as a team leader. Duties which do not place too many demands on his back.
Dr Millions noted that the applicant has continuing pain and tightness in his lower back around the belt line. The pain does not now radiate into either lower limb. When he lies down for a long time, there is a feeling of electricity in the legs but no actual pain. Standing in one spot can be aggravating and the applicant tends to sit, stand and move around to cope with his symptoms. Jarring is particularly aggravating.
Dr Millions diagnosed the applicant with quite marked degenerate changes in his lumbar spine, particularly at L5/S1. Dr Millons noted that the applicant has a long recorded history of issues with his back in the first aid records.
In Dr Millons opinion the applicant’s work duties as a straddle crane operator were clearly non-ergonomic with the applicant having to sit sideways to operate the crane and having to lean forward to look down at what was going on and having to lean towards the left, which would, in the opinion of Dr Millons, have clearly put an abnormal strain through the back. Dr Millons noted that the seat suspension was, according to the applicant, often broken and there would have been jarring as he drove the straddle crane across the uneven surface on the waterfront.
In Dr Millons opinion the jarring would clearly have been an issue. Dr Millons observed that the multiple reports which the applicant made in regard to his neck and particularly his back over the years indicate that work-related aggravations were a problem. In the opinion of Dr Millons the applicant’s maintenance work, which was heavy and demanding, would also have played a role in the gradual development of the degenerative changes in the applicant’s back. Dr Millons observed that the driving of the reach stackers also involved driving over uneven surfaces.
Dr Millons diagnosed constitutionally based degenerative changes in the lumbar spine, particularly at L5/S1, substantially aggravated by the nature and conditions of his work duties with the respondent. Dr Millons accepts that the underlying degenerative changes at the L5/S1 level are probably constitutionally based however in his opinion there is no doubt that the nature and conditions of his employment has played a significant role in his ongoing symptoms. Whilst there were episodes of aggravation along the way, the condition can be considered to be a disease of gradual onset.
In Dr Millons opinion the applicant’s employment is the main contributing factor to the development of the injury/condition.
In the respondent’s submission the opinion of Dr Haig that the applicant is suffering from a degenerative disease of the lower back which is age related and unrelated to his employment with the respondent should be accepted. In the alternative the respondent submits that if it is found that the applicant has sustained a work-related back injury then any injury was sustained on 13 February 1997 when the applicant strained his back whilst lifting a heavy tyre into the tray of a breakdown truck.
Mr Tanner submitted on behalf of the applicant that the alleged injury is an injury contemplated by s 4(b)(ii) of the 1987 Act. That is a gradual process of injury by way of aggravation of underlying back pathology with a deemed date of injury of 6 March 2023. The deemed date of injury relied on by the applicant is based on the certificate of capacity of Dr Vahedeh Naseri dated 7 March 2023 which certified the applicant with capacity for some type of work from 7 March 2023 to 7 April 2023 due to L5/S1 discopathy. In support of its submissions in respect to causation the applicant in particular relies on the medical opinions of Dr Diwan and Dr Millons.
I accept the applicant’s submissions for the following reasons. It is the applicant’s evidence that he suffered repeated incidents of low back pain in the course of employment with the respondent and in particular related to the operation of straddle cranes and reach stackers. These incidents go back at least as far as 13 February 1997. The applicant’s evidence in respect to his work duties and work conditions is not challenged by any evidence to the contrary and is supported by the entries in the respondents first aide records as well as the contemporaneous treating medical records.
Dr Diwan in reaching his opinion that the applicant’s work duties with the respondent were a substantial factor contributing to or causing the injury had the opportunity to examine the applicant on multiple occasions and over an extended period, the applicant having been initially referred to him in 2015.
Whilst Dr Millons concedes that the underlying degenerative changes at the L5/S1 level are probably constitutionally based the doctor is of the opinion that there is no doubt that the nature and conditions of the applicant’s employment has played a significant role in the ongoing symptoms and that the applicants employment with the respondent is the main contributing factor to the development of the injury finding that whilst there were episodes of aggravation along the way the condition could be considered a disease of gradual onset. In coming to his opinion Dr Millons took an extensive history from the applicant as well as undertaking a review of the respondents first aid records which recorded the applicant’s multiple complaints of back injury. Dr Millons also undertook and extensive review of the treating medical records.
I accept the applicant’s submission that Dr Haig in coming to his opinion fails to engage with either the treating medical records or the multiple recorded complaints of work-related back pain recorded in the respondents first aid records. I therefore prefer the opinions of Dr Diwan and Dr Millons to that of Dr Haig.
The respondent submits that if the applicant has sustained a back injury, such injury is a frank injury and was sustained as a result of the incident on 13 February 1997 when the applicant strained his back lifting a heavy tyre into the back of a break down truck. In support of its submission the respondent referred to the decision in Rail Services Australia v Dimovski [2004] NSWCA 267; (2004) 1 DDCR 648. In the respondent’s submission the applicant has not sustained a disease injury but rather sustained a frank injury on 13 February 1997 which has caused a disease process. The respondent observed that it is the applicant’s evidence that he strained his back on 13 February 1997 and that he had continuing problems after that incident. I do not accept this submission. The applicant reported multiple incidents of lower back pain during the course of his employment with the respondent and there is no medical evidence, which is conceded by the respondent, that the incident on 13 February 1997 set in train any process that led to the development of a disease. Rather the medical evidence of Dr Millons and Dr Haig is to the effect that the applicant has an underlying constitutional degenerative back condition which in the opinion of Dr Millons has been aggravated by the applicant’s work duties. Neither Dr Millons nor Dr Haig attribute any particular significance to the incident on 13 February 1997.
Where the injury sustained is a disease injury ss 15(1)(a)(i) and 16(1)(a)(i) of the 1987 Act relevantly deem the injury to have happened at the at the time of the workers death or incapacity. In this case whilst the applicant has previously been certified as having an incapacity he was again certified with an incapacity on 7 March 2023. The deeming provisions contained in ss 15(1)(a)(i) and 16(1)(a)(i) of the 1987 Act do not require the date of injury to be deemed as the first date of incapacity. In P & O Berkeley Challenge Pty Ltd in the interest of HIH Winterthur Workers Compensation (NSW) Pty Ltd v Alfonson [2000] NSWCA 214; (2000) 49 NSWLR 481 (Alfonso) the worker developed pain in her arms and neck in the early 1990’s whilst working for the first employer. The worker was put off work in 1993 and the insurer paid weekly compensation. The worker moved to the second employer where her symptoms worsened and she again had time off work in 1995 and was paid compensation. She worked for two weeks in February 1996 but ceased work again and did not return to work.
At first instance Truss J relying on what had been said by Sheller JA in GIO Workers Compensation Ltd v GIO General Ltd (1995) 12 NSWCCR 187 held that incapacity for the purposes of s 16 was a reference to incapacity for which compensation was claimed finding that the relevant date of incapacity was the commencement of the workers inability to earn wages she would otherwise have earned for injury finding a date of injury of 12 February 1996. On appeal Priestly JA (Clarke AJA agreeing) said at [30]:
“…in the case which the trial judge relied on (see pars 4 and 13 above) this court previously reached substantially the same conclusion in regard to the meaning of incapacity in s 15 as I have done in regard to s 16. Sheller JA, at 12 NSWCCR 196 said, in regard to the phrase ‘…at the time of the worker’s…incapacity’ (which is the same in both s 15(1)(a)(i) and s 16 (1)(a)(i) ‘that I have no doubt is a reference to the incapacity for which compensation is claimed’”.
For the above reasons I find on the balance of probabilities that the applicant sustained injury to his lumbar spine as defined by s 4(b)(ii) of the 1987 Act with a deemed date of injury of 6 March 2023.

Proposed surgery

The applicant seeks pursuant to s 60 of the 1987 Act the payment of the costs of and associated with L5/S1 minimally invasive transforaminal lumbar interbody fusion surgery recommended by Dr Diwan.

On 30 January 2023 Dr Diwan reported to Dr Vahedeh Naseri that the applicant was suffering from lumbosacral pain, a burning sensation in the right thigh as well as pain around the left ankle. Dr Diwan noted that he had seen the applicant about 9 years prior at which time the diagnosis was that of a lumbar disc herniation at L5/S1 and microdiscectomy had been discussed. Since then, the applicant had managed his symptoms non-operatively. Dr Diwan noted that a CT scan showed a complete loss of disc height at L5/S1 with retrolisthesis and bilateral foraminal stenosis.[36]
[36] ARD p 106.
On 22 February 2023 Dr Diwan again reported to Dr Vahedeh noting that the applicant’s back had been continuously painful for “numerous years.” The applicant was at the time of reporting unable to lie down painlessly. Dr Diwan was reasonably sure that the L5/S1 disc was the cause of the pain. Dr Diwan noted that the applicant was keen to consider surgical options, which in Dr Diwan’s opinion would be minimally invasive translumbar interbody fusion as the applicant had exhausted injections, medications and exercise.[37]
[37] ARD p 108.
On 13 March 2023 Dr Diwan reported to Dr Vahedeh that the applicant had reported that whilst exercises had benefited him a little there was a constant dull back ache which was worse at night. If he misses a step and jars his back that causes pain. Dr Diwan was of the opinion that taken together with the duration of symptoms it may be reasonable for the applicant to proceed with minimally invasive translumbar interbody fusion.[38]
[38] ARD p 109.
On 16 June 2023 Dr Diwan reported to the applicant’s solicitors[39] noting that in 2015 the applicant presented with a reported work-related injury from November 2014 of low back pain and leg pain and pain to the ankle. The diagnosis at that time was of an L5/S1 sequestrated herniation of nucleus pulposus with retrolisthesis. Non‐operative treatments were used from that time. In 2023 the applicant presented with lumbosacral pain with right anterolateral thigh burning sensation and left L5 distribution around the ankle pain. The symptoms were of similar distribution to that seen eight years prior. Dr Diwan noted that a CT scan showed complete loss of disc height at L5/S1 with retrolisthesis and bilateral foraminal stenosis. Dr Diwan therefore advised surgery as the next step in treatment.
[39] ARD pp 114-115.
The doctor proposed surgery in the form of L5/S1 minimally invasive transforaminal lumbar interbody fusion.
Dr Diwan was of the opinion that the non‐operative treatments had failed to provide the hoped-for improvement and lasting benefit over time. Due to the chronic nature of the long term injury, when, over a period of years, the applicant had tried and persevered with all applicable non‐operative treatments which had included pharmacotherapy, spinal injections, physiotherapy, and due to the degenerated disc, with little disc space now seen, and some retrolisthesis radiologically demonstrated, the proposed surgery has become reasonably necessary, and it will be of significant benefit to the patient to now undertake to prevent further aggravation, and provide stability, and improved functionality, and life quality.
Dr Millons noted that the applicant was troubled by continuing pain and tightness in his lower back. The pain does not radiate into either lower limb now. When he lies down for a long time he gets a feeling of electricity in the legs but no actual pain. Standing in one spot can be aggravating and he tends to sit, stand and move around to cope with his symptoms. Jarring is particularly aggravating.
Dr Millons observed that the applicant has quite marked degenerate changes in the lumbar spine, particularly at L5/S1 with a long-recorded history of issues with his back.
Dr Millons noted that a steroid injection had lessened the applicant’s symptoms somewhat, however the applicant felt that his condition is worsening to the point where he would like to proceed with surgery and Dr Millons believes on all clinical grounds that would seem a reasonable option for his genuine mechanical back pain.
Dr Millons is of the opinion that the applicant’s employment duties with the respondent have been the main contributing factor to the development of the injury/condition and the need for the proposed surgery.
Dr Millons believes that the proposed surgery is reasonable and appropriate as well as warranted. Regarding alternatives to the proposed surgery, Dr Millons is of the opinion that conservative treatment had been tried and found wanting.
Dr Haig noted that Dr Diwan had suggested L5/S1 fusion.
Dr Haig records that the applicant described his back pain as “low background pain”. He went on to state that he can disregard this if distracted. The applicant reported that it is increased with sudden jarring such as stepping off a gutter. In general, it is eased by walking. The pain can wake him at night. The applicant referred to “fatigue” and his legs getting tired with prolonged standing.
Dr Haig concluded that the applicant complained of low back pain which did not appear to be particularly severe. The doctor diagnosed L5/S1 low back pain.
Dr Haig is of the opinion that the applicant’s treatment should remain non-operative. He however noted that the applicant may continue to have symptoms. In Dr Haig’s opinion simple analgesics would be appropriate. Dr Haig observed that it appeared that the applicant chooses not to take such. However, I note that in 2015 Dr Diwan recorded that the applicant’s pain medication requirements were “pretty high” with him taking anywhere from 8 to 10 Nurofen Plus tablets per day.
Dr Haig does not believe that the minimally invasive translumbar interbody fusion surgery suggested by Dr Diwan is reasonable and necessary for the applicant’s condition. However, in Dr Haig’s opinion this would offer perhaps a 60-70% chance of some improvement in the applicant’s condition. Dr Haig did observe that the surgery could also make things worse.
Dr Louise McGuigan, rheumatologist, reported to Dr Vahedeh Naseri on 30 August 2023 noting that the radiological investigations confirmed a significant retrolisthesis of L5 on S1 with degeneration in the disc. Dr McGuigan is of the view that the applicant would probably benefit from a fusion of L5/S1. In the opinion of Dr McGuigan the instability at L5/S1 is almost certainly the leading cause of the applicant’s back pain.

I prefer the opinions of Dr Diwan, Dr Millons and Dr McGuigan to that of Dr Haig for the following reasons. The applicant has had ongoing symptoms related to his back condition for many years. Spinal surgery was first discussed in 2015 however it is only after the failure of conservative treatments which has included physiotherapy, medication, exercises and spinal injections that Dr Diwan has proposed the L5/S1 minimally invasive transforaminal lumbar interbody fusion surgery and the applicant has been keen to proceed with the proposed surgery.
Whilst Dr Haig is of the opinion that the proposed surgery is not reasonably necessary and suggests the use of pain relief medication the doctor does not appear to be aware that the applicant had in the past used significant amounts of such medication. Also, Dr Haig concedes that the proposed surgery has a 60% to 70% chance of providing some improvement in the applicant’s condition which is a significant chance of improvement. Whilst Dr Haig observes that the surgery could make the condition worse that is a risk which would seem to accompany virtually all, if not all surgical procedures.
Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC2; (1986) 2 NSWCCR 32 (Rose) when considering s 10(1) of the Workers Compensation Act 1926 (the 1926 Act) said:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
Burke CCJ in Rose went on to state:
“In determining whether a particular regimen is medical treatment and whether it is reasonably necessary that such be afforded to a worker and that such necessity results from injury, it appears to me some general principles can be stated:
1. Prima facie, if the treatment falls within the definition of medical treatment in section 10(2) [the 1926 Act], it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2. However, though falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the party seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
The legal test to be applied when determining whether proposed treatment is reasonably necessary as a result of a workplace injury as required by s 60 of the 1987 Act was considered in Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab) where Roche DP stated at [86]:
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply.”
In Diab Deputy President Roche cited the decision of Burke CCJ in Rose with approval and stated:
“[88] In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose……namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
[89] With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
[90] While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”
In terms of whether a proposed treatment is reasonably necessary as a result of the work-related injury Roche DP in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy) stated:
“[57] ….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.
[58] 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).”
The surgery is proposed to treat the injury which the applicant has sustained with the aim of alleviating or reducing the applicant’s symptoms. The medical evidence supports that the proposed surgery has the potential to alleviate or reduce the symptoms of the injury. Alternate non-operative treatments have been explored and have failed. The proposed surgery is an accepted treatment by medical experts and not uncommon. The costs of the proposed surgery are regularly accepted at workers compensation. Whilst there may be an underlying constitutional component, I accept the opinion of Dr Millons that the work injury materially contributes to the need for the proposed surgery.
I therefore find for the above reasons that the L5/S1 minimally invasive transforaminal lumbar interbody fusion surgery proposed by Dr Diwan is reasonably necessary as a result of the work-related injury which the applicant has sustained to his lumbar spine.

SUMMARY

I find that:
(a) On the balance of probabilities, the applicant sustained injury to his lumbar spine as defined by s 4(b)(ii) of the 1987 Act with a deemed date of injury of 6 March 2023.
(b) That the L5/S1 minimally invasive transforaminal lumbar interbody fusion surgery proposed by Dr Diwan is reasonably necessary as a result of the work-related injury which the applicant has sustained to his lumbar spine.

[2023] NSWPIC 618

17 November 2023