Unriza Zapata v NRG Cleaners Pty Ltd
[2025] NSWPIC 533
•8 October 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Unriza Zapata v NRG Cleaners Pty Ltd [2025] NSWPIC 533 |
| APPLICANT: | Maritza Unriza Zapata |
| RESPONDENT: | NRG Cleaners Pty Ltd |
| MEMBER: | Josephine Bamber |
| DATE OF DECISION: | 8 October 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for proposed L5/S1 anterior interbody fusion is reasonably necessary treatment as a result of the injury in circumstances where applicant was asymptomatic before the workplace injury; respondent disputes the surgery is reasonably necessary treatment as a result of the workplace injury; Held – the effects of the injury have not ceased and finding made that the proposed surgery is reasonably necessary treatment as a result of the workplace injury; Diab v NRMA Ltd, and Murphy v Allity Management Services Pty Ltd applied. |
| DETERMINATIONS MADE: | The Personal Injury Commission (Commission) determines: 1. Pursuant to s 60 of the Workers Compensation Act 1987 the proposed L5/S1 anterior interbody fusion is reasonably necessary treatment as a result of the injury on 2. The respondent is to pay the costs of the proposed L5/S1 anterior interbody fusion and ancillary expenses in accordance with the SIRA fee order applicable at the time of the treatment. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
The claim for compensation in these proceedings is confined to a claim under s 60 of the Workers Compensation Act 1987 (the 1987 Act). The applicant seeks for the respondent to pay for the proposed L5/S1 anterior interbody fusion and ancillary expenses recommended by Dr Khong and supported by Dr Gehr. Liability for injury to the lumbar spine has been admitted however, the respondent disputes that the surgery is reasonably necessary treatment as a result of the injury on 20 December 2023.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
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.
The case proceeded in arbitration hearing on 30 July 2025 on the MS Teams platform.
Mr Stuart Moffet, counsel, instructed by Mr Guerra, solicitor, appeared on behalf of
Ms Zapata, who was present together with an interpreter. Mr Greg Young, counsel, instructed by Ms Harvey, solicitor and Ms Grozavu from the insurer appeared for the respondent.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents;
(c) Application to Lodge Additional Documents (ALAD) dated 28 May 2025 filed by the respondent;
(d) Application to Lodge Additional Documents (ALAD) dated 30 May 2025 filed by the applicant;
(e) Application to Lodge Additional Documents (ALAD) dated 8 July 2025 filed by the applicant, and
(f) Application to Lodge Additional Documents (ALAD) dated 29 July 2025 filed by the respondent.
Oral evidence
There was no oral evidence. The parties made oral submissions which have been sound recorded and a written transcript (T) has been made from that recording.
FINDINGS AND REASONS
I have briefly summarised the pertinent evidence below before considering counsels’ submissions.
Ms Zapata commenced work with the respondent on 30 June 2023 as a casual cleaner. On 20 December 2023 when she was cleaning a room she reached for a cloth and felt a sharp pain in her back. She reported the injury to various colleagues who assisted her at the time. She was taken to Royal Randwick Medical Centre that day and saw Dr Holloway who administered an injection in her back and prescribed Palexia 50mg. In her statement dated 30 August 2024 she describes the situation that her employer’s staff attended her medical examinations and incorrectly translated her symptoms.[1] Ms Zapata only arrived in Australia on 13 February 2023 from Colombia and is learning English. She completed various bachelor and master’s degrees in Colombia. She eventually came under the care of Dr Lim, general practitioner, at the Workers Doctors practice.
[1] ARD p 4.
Ms Zapata last worked as a cleaner on 4 March 2024 and returned to work performing suitable duties as an administrative assistant in the office on 14 May 2024 working four hour shifts on Thursdays and Fridays.
In that statement she describes her symptoms and the tasks she has difficulty performing. She says she was experiencing back pain radiating to her right leg, has pins and needles and the pain is 7/10. She says her sleep is disrupted due to pain, as is her personal life with her husband and her social activities such as walking, hiking and dancing. She is 40 years of age.
In her second statement dated 30 April 2025 she advises that she continues to suffer from severe lower back pain, despite undergoing conservative treatment such as pain medication, physiotherapy and injections. She says she wishes to undergo the surgery recommended by Dr Khong.[2]
[2] ARD p 1.
MRI lumbar scan
On 18 January 2024 an MRI of the lumbar spine scan was performed for low back pain, radiating to the left leg.[3] The radiologist concluded that there was disc disease at L4/5 and L5/S1. He stated there was a small posterior annular fissure at L4/5 potentially causing pain and a small left foraminal disc protrusion at L5/S1 which was not clearly contacting the exiting left L5 nerve but the radiologist said this could still irritate the nerve. He advised if it was clinically appropriate, a left L5/S1 transforaminal injection could be considered.
[3] ARD p 84.
Dr Adams
On 28 February 2024 at Dr Adams’ request a CT guided lumbar transforaminal injection was performed for right sciatica injecting at L5/S1 level.[4]
[4] ARD p 82.
Dr Adams provided a report to the insurer dated 20 March 2024.[5] He advised that Dr Lim’s diagnosis was more precise than his as it was based on the results of the scan which were not available to Dr Adams. He says he assumes that Ms Zapata’s condition deteriorated between when he saw her on 26 February 2024 and when Dr Lim saw her on 5 March 2024, and that such a deterioration would not be unusual. Dr Adams said lumbar disc injuries can occur with very little provocation and twisting can cause a severe disabling injury. He confirmed there was no pre-existing spinal disorder or injury. He added that he did not think her psychological distress was out of proportion to her level of pain.
[5] ARD p 72.
Dr Lim
Dr Lim has been Ms Zapata’s treating general practitioner since 5 March 2024. In his reports dated 5 March 2024[6] and 29 August 2024[7] he diagnosed that she suffers from an L4/5 annular fissure and L5/S1 disc protrusion with L5 nerve impingement found on an MRI scan of 18 January 2024. He also diagnosed a cervical strain, left shoulder strain and an adjustment disorder. He sets out details of the injury of 20 December 2023 and her symptoms including sharp and shooting pain in her lower back radiating to both legs with associated numbness and pins and needles. He provides the opinion that she sustained a back injury from the repetitive lifting and twisting of her back from her work as a cleaner and when she lifted the bed to vacuum she re-aggravated her back. He says her work as a cleaner was the main contributing factor for the deterioration of her back condition.
[6] ARD p 79.
[7] ARD p 40.
On 5 March 2024 Dr Lim referred Ms Zapata to see Dr Khong.[8] In the March 2024 report
Dr Lim says he has recommended she ceased narcotic medications now that she has had a cortisone injection and she take Gabapentin as an alternative. He also referred her for physiotherapy treatment.
Dr Khong
[8] ARD p 78.
Dr Khong is Ms Zapata’s treating neurosurgeon. In his reports dated 15 March 2024[9] and
17 May 2024[10] he diagnosed she was suffering from lower back pain due to musculoligamentous strain and exacerbation of previous asymptomatic degenerative changes in her lumbar spine. He referred to the MRI scan of 18 January 2024 showing degenerative disc disease at L4/5 and L5/1 with no neural compression. She had reported some improvement in her low back pain and her leg pain. In his first report he recommended non-operative management with physiotherapy and in his second report he recommended she continue with physiotherapy.[9] ARD p 76.
[10] ARD p 68.
Dr Khong also provided a report which is dated 1 May 2024[11] in which he sets out in detail his examination findings and answers various questions. He explains that her degenerative changes were previously asymptomatic and pre-existing, but her injury caused an acute exacerbation of these degenerative changes.
[11] ARD p 70.
On 22 November 2024 Dr Khong issued a referral for a lumbar spine bone scan and a standing lumbar X-ray.[12]
[12] ARD p 150.
He provided a report dated 28 November 2024[13] in which he describes her pain in her lower back radiating to the right buttock, posterior thigh and calf to the heel. On the left side she has pain in the posterior thigh stopping at her knee. Her back pain can reach 7/10 and her leg pain 4/10. Dr Khong has the history that sitting and standing for too long and working increases her pain. He noted at that time Ms Zapata was working as an administrative assistant working four hours a day, two days per week. She was unable to do her pre-injury duties and hours due to persistent pain.
[13] ARD p 26.
Dr Khong says while her pain may gradually improve, it is more likely it will persist and possibly be permanent. He says she may require a fusion if her pain becomes intolerant. He opines that the nature and conditions of her work may have accelerated the degenerative changes in her lumbar spine and this was exacerbated by her lifting injury.
Dr Khong reported to Dr Lim on 31 January 2025.[14] This was a video conference with a Spanish interpreter. The doctor sets out his findings from his earlier physical examination and advised “reasonable treatment options include analgesia, physiotherapy, steroid injections and surgery.” He adds that Ms Zapata has failed non-operative management options to date and a steroid injection is unlikely to give her long term relief. He says that surgery is reasonable for her lower back pain and is necessary because she has had pain now for over a year. He says she is unlikely to improve or regain significant function without surgery and he recommends an L5/S1 anterior lumbar interbody fusion.
[14] ARD p 144.
Dr Khong provided a further report dated 8 April 2025.[15] He states that an MRI scan showed that Ms Zapata has degenerative disc disease at L5/S1 and to a lesser extent at L4/5. He also advises that there is an increased uptake at L5/S1 on a bone scan.[16] Dr Khong says her workplace injury is the direct cause of her pain and that she was previously asymptomatic and working without restriction prior to her injury. He adds that she may never have experienced pain or required treatment had it not been for the injury.
[15] ARD p 24.
[16] A copy of the Bone Scan is in ALAD 8 July 2025 p 7.
Dr Khong states that Ms Zapata has failed all non-operative management options including analgesia, physiotherapy and a steroid injection and she is unlikely to improve without surgery. He advises that a fusion at L5/S1 aims to immobilise this painful motion segment, helping with a proportion of her lower back pain. He sets out the costs of the surgery in his report. He states that a fusion is accepted as appropriate treatment and is likely to be effective for discogenic lower back pain unresponsive to non-operative management.
On 1 July 2025 Dr Khong issued a further report.[17] He referred to the MRI scan undertaken on 1 May 2025[18] which he said demonstrated similar appearances to that performed on
18 January 2024, being degenerative disc disease at L4/5 and L5/S1 with the absence of neural compression. Dr Khong adhered to his earlier opinion. He says he agrees withDr Courtenay that there is degenerative disc disease at L4/5 and a fusion at L5/S1 may accelerate the degeneration at this level. He says non operative alternatives have already failed. Dr Khong says the surgical alternatives to a fusion at L5/S1 are a fusion at L4/5 and L5/S1, or a fusion at L5/S1 and disc replacement at L4/5. He says these are all reasonable options. However, he says he has proposed the least invasive option of only fusing L5/S1. He adds if Ms Zapata encounters issues with adjacent segment disease in the future that can be addressed. But, if she does not, then she has avoided surgery at an extra level.[17] ALAD 8 July 2025 p 4.
[18] A copy of the MRI scan is at ALAD 8 July 2025 p 6.
Dr Khong says Dr Courtenay has proposed management with self-managed programs including exercise, core strengthening and weight control. Dr Khong says that Dr Courtenay does not offer solutions to her lower back pain. Dr Khong adds if Ms Zapata finds her lower back pain intolerable fusion has a reasonable chance of improving her pain. He acknowledges that surgery carries a risk of complications but he puts this at 5%, he disagrees this is a significant risk. He advises the risk of adjacent segment disease for a fusion is 25% in 10 years. He agrees a fusion may not allow her to return to pre-injury duties but he explains this is due to the original injury.
Dr Gehr
Dr Gehr is an orthopaedic surgeon who has provided medico-legal reports for the applicant dated 7 August 2024,[19] 16 November 2024[20] and 20 April 2025.[21]
[19] ARD p 43.
[20] ARD p 28.
[21] ARD p 20.
In his first report Dr Gehr stated that his physical findings are most significant as he found guarding, dysmetria, decreased motor power L5 on the left side and hyper brisk deep tendon reflexes on the right side and he found left calf muscle wasting. Dr Gehr said Ms Zapata fulfilled the criteria for radiculopathy. He states that Dr Courtenay found a full range of motion in the lumbar spine and said this was not what he found on his examination. He also found no significant inconsistencies with her history, unlike Dr Courtenay. Dr Gehr says the reported mechanism of injury did cause Ms Zapata’s back pain. He says even though the imaging did not show compression of the nerve root, his physical examination did show clear evidence of radiculopathy. Dr Gehr opined that the injury had not resolved and she was not fit to return to her pre-injury job. Dr Gehr recommended that she remained under the care of Dr Lim and Dr Khong and also have a pain management program and continue with physiotherapy for the next 12 to 18 months.
In his report dated 16 November 2024 Dr Gehr summarises all of the medical reports made available to him and Ms Zapata’s statement. He states that she had no prior back problems before the injury on 20 December 2023. He says there is no change since his report dated
7 August 2024, excepting he found no radiculopathy on examination. He states that
Ms Zapata understood the insurer was about to re-approve her physiotherapy. He recommended that treatment remain under the care of her general practitioner and for her to have physiotherapy for the next 12 months on a weekly basis and two more consultations with her neurosurgeon.In his report dated 20 April 2025 Dr Gehr provides a diagnosis of persisting lumbar spine pain, guarding and dysmetria but no clear radiculopathy. He states that he agrees with
Dr Khong’s recommendation for a L5/S1 anterior lumbar fusion. He says it is reasonable and necessary because it is appropriate for the identified L5/S1 pathology which is the generator of her pain. He says alternative non operative treatment has been exhausted. The cost of the treatment is in the range of $10,000 to $20,000 and is 70% to 90% effective and such surgery is generally accepted by spinal surgeons in Australia. Dr Gehr noted that Dr Khong had stated the bone scan showed an increased uptake at L5/S1.Dr Gehr commented on Dr Courtenay’s reports noting that he had found exaggeration by
Ms Zapata whereas Dr Gehr says he did not find this when he examined her twice. He says Dr Courtenay emphasised physiotherapy and psychotherapy and Dr Gehr says while these are important they are not sufficient and she now needs the surgery.
Dr Courtenay
Dr Courtenay is a consultant orthopaedic surgeon who has provided medico-legal reports for the respondent dated 9 May 2024,[22] 11 June 2024,[23] 2 April 2025,[24] 29 April 2025[25] and 29 July 2025.[26] In his first examination he found Ms Zapata had a full range of motion with no asymmetry of her lumbar spine and she could virtually touch her toes. He found no evidence of any neurological deficit. He considered the MRI scan dated 18 January 2024 and offered the opinion that with the small disc prolapse could be irritating the left L5 nerve root and with the small posterior annular tear it is highly possible that Ms Zapata got an acute onset of pain in her left buttock. He considered that physiotherapy and the injection had helped her settle down. Dr Courtenay did mention there were limitations using an interpreter who was online. He said he thought he got an accurate history but he noted there were differences with
Dr Khong’s history. He believed that Ms Zapata should make a full recovery and with a suitable program return to her full pre-injury duties and normal activities of daily living.[22] Reply p 1.
[23] Reply p 11.
[24] Reply p 15.
[25] Reply p 23.
[26] ALAD 29 July 2025 p 1.
In his supplementary report dated 11 June 2024 he stated that the reported mechanism of injury most definitely did not cause the pathology seen on the MRI scan dated
30 January 2024, being the disc disease at L4/5 and L5/S1. He said whether or not it caused the small annular fissure he could not determine. He said it was not compressing the nerve root and should have completely resolved. He also said she had been “doctor shopping at the beginning” which contributed to him concluding she had an issue with motivation.Dr Courtenay examined Ms Zapata again and reported on 2 April 2025. He said she had physiotherapy treatment which was ceased for a couple of months and then reinstated, and she was having it at the time of his examination on a weekly basis. An interpreter was present for the examination although Dr Courtenay revisited the history he did comment that he found it difficult to try to find out her work pattern when she resumed work. He noted some variation when obtaining a history as to how the injury occurred.
Dr Courtenay at this time did not have access to all of Dr Khong’s reports and he says he did not have access to further investigations. He says that Ms Zapata gives a history of significant low back pain which was not reinforced by his clinical examination. He found no evidence of nerve tension, no asymmetry in movements of her lumbar spine and excellent reflexes. He believed she was exaggerating her symptoms. He diagnosed a soft tissue injury on a background of pre-existing degenerative changes, which he said should have settled down. In answer to question 6, Dr Courtenay stated she was having regular physiotherapy which has made no difference to her condition and she has had this on a weekly basis for about nine months with no changes overall. He does not believe it is reasonably necessary if it has not been beneficial and altered her outcome.
Dr Courtenay was sent correspondence from Dr Khong and issued a supplementary report dated 29 April 2025. Dr Courtenay starts his report by stating that Ms Zapata “is certainly suffering from problems with her low back”. This seems a departure from his earlier views.
He then proceeds to discuss the outcomes of lumbar spine fusion, which he says is not good when done purely for back pain. He states that a fusion at one level will put additional load on another level and in her case there is a suggestion of a problem at L4/5 so he says a good outcome is extremely unlikely. Dr Courtenay sets out the risks of surgery and states that with a spinal fusion Ms Zapata will never get back to pre-injury duties and it is highly likely that she will have persisting problems with her low back. He states that “the reality is that once people have an injury to the low back and some degenerative changes in the low back, they will never be entirely free of pain and they will need to self-manage the program.” He suggests exercise, core strengthening, weight control is more effective with no side effects.
Dr Courtenay opines that the proposed surgery is not reasonably necessary and he says the literature suggests results are less than 50% improvement. He attaches two articles to his report, which while interesting do not deal with Ms Zapata’s presentation. For instance, the BMC Health Services Research article was focused on return to work and reoperation rates and the cohort of the study was predominantly male. I find that evidence from her treating surgeon who has examined Ms Zapata on several occasions, and considered her radiology, to be more probative.
Dr Courtenay provided a further supplementary report dated 24 July 2025 in which he answers questions about the further MRI scan dated 1 May 2025. He says its findings are effectively normal for a person of Ms Zapata’s age. He says it does not show any significant neural foraminal impingement or a great deal of facet arthritis. He says in his opinion there is no evidence of imaging pathology to explain the severity of Ms Zapata’s symptoms. He says that Dr Khong’s indications for fusion is based on her complaints not on the pathology from the MRI scan. He says there is no evidence of annular tear, no evidence of a disc prolapse and only minimal facet arthropathic changes. He adds that it is his opinion that the disc bulges are not a pathological condition but variations of normal. Dr Courtenay concludes the proposed surgery is not reasonably necessary treatment.
Physiotherapy
An issue arose during submissions as to how much physiotherapy Ms Zapata had undergone. I have briefly summarised the evidence of the sessions undertaken below. It may not be a comprehensive list of the actual sessions undertaken as all records may or may not be before the Commission:
(a) Allied Health Recovery Request (AHRR) number 1 by Infinity Allied Healthcare dated 14 March 2024 with 1 session to date.[27] Seeking approval for eight sessions;
(b) AHRR number 2 by Infinity Allied Healthcare dated 9 April 2024 states services had been provided from 14 March 2024 with 8 sessions to date;[28]
(c) AHRR number 3 by Infinity Allied Healthcare dated 16 May 2024 states services had been provided from 14 March 2024 with 15 sessions to date.[29] The insurer approved 8 further sessions in their letter dated 21 May 2024;[30]
(d) on 20 November 2024 the insurer approved eight further sessions;[31]
(e) on 19 January 2025 the insurer approved eight further sessions,[32] and
(f) on 28 March 2025 the insurer approved eight further sessions.[33]
Determination
[27] ARD p 96.
[28] ARD p 91.
[29] ARD p 86.
[30] ALAD 30 May 2025 p 30.
[31] ALAD 30 May 2025 p 54.
[32] ALAD 30 May 2025 p 51.
[33] ALAD 30 May 2025 p 40.
The applicant submits:
(a) if it is found that the proposed surgery is reasonably necessary treatment, there is no other cause for it being undertaken apart from the workplace injury, because Ms Zapata was asymptomatic before that injury;[34]
[34]T3.10.
(b) Dr Khong took the time to evaluate whether lumbar surgery was appropriate treatment and trialled conservative treatment;[35]
[35] T6.
(c) Dr Adams states that lumbar disc injuries can occur with very little provocation and just twisting can cause a severe disabling injury and Ms Zapata did not have psychological distress out of proportion to her injury;[36]
[36] T7.19-34.
(d) in addition to Ms Zapata’s statements, the medical evidence from her treating doctors shows she has experienced a lot of pain as a result of the work injury to her lumbar spine;
(e) Dr Gehr reported that her lumbar symptoms were getting worse.[37] He found straight leg raising was 70 degrees left and right, which counsel submitted is a serious restriction.[38] He also found guarding, dysmetria, decreased motor power at L4/5 on the left side and hyper-brisk deep tendon reflexes on the right side. Counsel submitted these findings are significant;[39]
(f) Dr Khong explains why he considers surgery is reasonably necessary, because Ms Zapata continues to complain of lower back pain since the injury on
20 December 2023.[40] Counsel also refers to Dr Khong finding there was increased uptake on the bone scan at L5/S1 level and his conclusion is that
Ms Zapata may never have experienced pain or required treatment had it not been for the work injury;[41](g) Dr Khong finds that Ms Zapata has failed all non-operative management options including analgesia, physiotherapy and a steroid injection. Dr Khong expresses the view that a fusion at L5/S1 aims to immobilise this painful motion segment, helping with a proportion of her lower back pain. Counsel submits that Dr Khong has addressed the relevant considerations such as cost, alternate treatment and whether this type of surgery is an accepted form of treatment;
(h) counsel also submitted that Dr Gehr in his final report also addresses the relevant criteria such as discussed in cases such as Diab v NRMA Ltd[42]and supports the proposition advanced by Dr Khong that the surgery is reasonably necessary treatment;
(i) counsel acknowledges there is a discrepancy between Dr Courtenay’s findings on examination compared to that of Dr Khong and Dr Gehr. He submits that all the treating doctors, as well as Dr Gehr, have not found that Ms Zapata is exaggerating and has experienced the pain she has described to them;
(j) Dr Khong has responded to Dr Courtenay’s opinion that the surgery carries risk of adjacent segment issues. Dr Khong states that only fusing L5/S1 is the least invasive option and she may not develop problems at L4/5 requiring further surgery.[43] Counsel submits that Dr Khong’s opinion has appropriate detail and reasoning. He submits Dr Khong has been careful throughout his treatment to wait and see how the conservative treatment progressed and he estimates a 70% chance of improvement in back pain and says without the surgery there is a much less chance of improvement as she has had persistent pain for one and a half years despite conservative treatment;
(k) it was submitted that Dr Courtenay does not explain why immobilisation of the joint would not assist with a reduction in pain,[44] and
(l) counsel also submitted that even though Dr Courtenay appeared to be expressing the view that the findings on the MRI scan showed disc disease but that was normal, the doctor did not deal with the scenario that the work injury had rendered them symptomatic in a very significant and longstanding way.
[37] T9.30-10.02.
[38] T10.12.
[39] T10.23.
[40] T 12.30.
[41] T13.
[42] [2014] NSWWCCPD 72, Diab.
[43] T19-20.
[44] T22.30.
The respondent submitted that the physiotherapy records in the ARD show as the treatment progressed there was an improvement in Ms Zapata’s symptoms.[45] Counsel submitted this goes against the assumptions made by Dr Khong and Dr Gehr and is supportive of
Dr Courteny’s view that physiotherapy provides some help. Counsel submitted by the time of the treatment on 16 May 2024 the current signs and symptoms were in the lower back, central and beltline pain but it is noted that she started to experience referral of lower back pain upwards to the thoracic spine. Counsel says this means there was no longer pain bilaterally in the legs.[45] T25.32.
He submits by this time 15 sessions have been performed. Counsel submits this is the only material of physiotherapy that is before the Commission and Dr Khong and Dr Gehr proceeded on the assumption that is wrong.[46]
[46] T27.14.
However, this is not correct as noted above the insurer did approve more sessions of physiotherapy. This was brought to both counsels’ attention. Ms Zapata’s counsel relied on these documents and the history in Dr Khong’s report of 20 April 2025 that she was still complaining of pain.
Furthermore, Dr Courtenay examined Ms Zapata and reported on 2 April 2025 that she had physiotherapy treatment which was ceased for a couple of months and then reinstated, and she was having it at the time of his examination on a weekly basis.
Counsel submitted that Dr Khong assumed the injection had no impact but Ms Zapata says after the injection she went back to work for a day which made her pain worse and she stopped.[47] Counsel submits that it was not the injection that did not work but it was the activity that happened after the injection. I reject this submission. Even if there was some improvement from the injection, I find it was not a sustained improvement if Ms Zapata could not undertake her duties without experiencing pain.
[47] T28.29.
Another reason for rejecting this submission is because Dr Khong did discuss whether to undertake another injection. He says in his report dated 31 January 2025 that a steroid injection is unlikely to give her long term relief.
The respondent’s counsel submits that the findings on both MRI scan are not of a nature to suggest Ms Zapata requires surgery. He submits there is a small disc herniation without significant neural exit foramina or spinal canal stenosis at L5/S1 and a minimal disc bulge at L4/5. He submits there should be no surgery as there is no radiculopathy.
Counsel submits Dr Khong is wrong when he does not deal with improvement with 15 sessions of physiotherapy and an injection at L5/S1. He said this does not equate to her failing all non-operative management.[48]
[48] T31.05
He submits that Dr Khong is wrong in his opinion because he should re-try physiotherapy and another injection.[49]
[49] T31.14.
Counsel also submits that Dr Khong does not really explain why immobilising the spine will stabilise her condition when the MRI scan does not reveal there is any movement such as spondylolisthesis.[50] It was submitted that the appropriateness of the treatment as discussed in Diab has not been adequately explained in light of these criticisms of Dr Khong’s opinion. He also submits the costs of alternate treatment would be less than surgery and there are alternatives, as discussed by Dr Courtenay.
[50] T32.
In reply, Ms Zapata’s counsel submitted that Dr Courtenay has the history that she was having regular physiotherapy which made no difference to her condition.[51]
[51] T35.
Dr Khong is Ms Zapata’s treating neurosurgeon who has proposed performing an L5/S1 anterior interbody fusion. I consider he is in the best position to determine the treatment required by Ms Zapata. He has seen her over a number of years and I find he is in a better position than Dr Courtenay to judge whether Ms Zapata is genuinely suffering the extent of pain she alleges. His physical examinations of her have revealed findings at odds with that found by Dr Courtenay and I acknowledge these are difficult to reconcile. However, I accept the applicant’s counsel’s submission that Dr Khong has not rushed into the recommendation for surgery. In fact, initially, he did not recommend it and it was only after conservative treatment did not result in a resolution of her pain that he has resorted to recommending surgery.
I find he has carefully explained why he has proposed the type of surgery he seeks to undertake, to achieve a lessening of Ms Zapata’s pain. He has explained why he has not opted for more extensive surgery and while he acknowledges that it is possible once L5/S1 is fused Ms Zapata may have issues at L4/5, he believes though that a prudent course is to operate now at L5/S1. I find Dr Courtenay’s opinion is coloured by the fact that he believes Ms Zapata is exaggerating her level of pain. I find this view is at odds with the weight of the treating evidence from Dr Adams, Dr Lim and Dr Khong and supported by Dr Gehr. Also Dr Courtenay does not refer to the bone scan result which Dr Khong relied upon, noting there was some uptake at L5/S1.
While it is not unheard of for some people to exaggerate their level of pain I consider that
Dr Khong would have been able to detect that. His acceptance of Ms Zapata’s complaints is supported by Dr Gehr’s findings. Furthermore, for a worker to willingly seek to undertake surgery to alleviate pain is a serious decision with an outcome that may prove to be not effective. However, as was discussed in Diab by Roche DP at [89] surgery carries a risk of a less than ideal result “a poor outcome does not necessarily mean the treatment was not reasonably necessary”. I consider Dr Khong has taken into account the risks of surgery as is evident by his response to Dr Courtenay’s opinion regarding the same.At [86] in Diab Roche DP stated:
“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.”
At [88] in Diab the various considerations were set out. I find that Dr Khong has considered these and provided persuasive reasons why the surgery is appropriate, he has canvassed why alternative treatments have not proved effective, he has considered the costs of the surgery and he has expressed the view that medical experts do recognise this type of surgery. I accept his reasons in all of these areas. I find the costs of the treatment need to be considered in the context of the likely benefit to Ms Zapata should the surgery be successful, the amelioration of some of her pain. She has spoken in her statement of the extent of the pain and its effect on all aspects of her life.
I find that this injury did cause her lumbar spine to become symptomatic and that her injury has not resolved. I find that this injury did materially contribute to the need for surgery. At [58] of Murphy v Allity Management Services Pty Ltd[52] Roche DP stated,
“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).”
[52] [2015] NSWWCCPD 49, Murphy.
For all of the above reasons, I find that the proposed surgery is reasonably necessary and it is as a result of the injury at work on 20 December 2023.
Accordingly, I order that the respondent pay the costs of the proposed L5/S1 anterior interbody fusion and ancillary expenses in accordance with the SIRA fee order applicable at the time of the treatment.
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