Webster v TAFE NSW (North Coast Institute)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Webster v TAFE NSW (North Coast Institute) [2025] NSWPIC 477
APPLICANT:	Patricia Webster
RESPONDENT:	TAFE NSW - North Coast Institute
MEMBER:	John Turner
DATE OF DECISION:	12 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 60; reasonably necessary; as a result of an injury; material contribution; Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service, Diab v NRMA Limited, and Murphy v Allity Management Services Pty Ltd considered and applied; Held – the anterior disc replacement at L4/5 and anterior interbody fusion at L5/S1 surgery recommended is reasonably necessary as a result of the accepted injury; the respondent is to pay the costs of and incidental to the anterior disc replacement at L4/5 and anterior interbody fusion at L5/S1 surgery recommended.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. That the anterior disc replacement at L4/5 and anterior interbody fusion at L5/S1 surgery recommended by Dr Parkinson is reasonably necessary as a result of the accepted injury sustained on 2 May 2019. 2. The respondent is to pay the costs of and incidental to the anterior disc replacement at L4/5 and anterior interbody fusion at L5/S1 surgery recommended by Dr Parkinson. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Patricia Webster (applicant) has brought proceedings in the Personal Injury Commission (Commission) in which she pleads that whilst in the course of her employment with TAFE NSW - North Coast Institute (respondent) she was walking upstairs on campus on
2 May 2019 when she lost her footing and fell injuring her lumbar spine.
The applicant seeks pursuant to s 60 of the Workers Compensation Act 1987 (1987 Act) the payment of the costs of and incidental to anterior disc replacement surgery at L4/5 and anterior interbody fusion surgery at L5/S1 as recommended by Dr Jonathan Parkinson on
23 May 2024.
The respondent does not dispute that the applicant sustained injury as alleged.
The applicant had suffered a prior injury to her lumbar spine for which she had surgery shortly prior to the subject work incident on 2 May 2019.
In March 2018 the applicant had parked her car in a supermarket carpark and exited the vehicle without applying the handbrake which caused the vehicle to roll forward. She opened the car door and leant forward into the car to try and quickly apply the handbrake at which time she became caught between her vehicle and another parked vehicle causing her to twist her back.
Following the incident in March 2018 she continued to experience lower back pain throughout the rest of 2018. She subsequently consulted the orthopaedic surgeon, Dr Sean Suttor, who performed an L4/5 and L5/S1 laminectomy and discectomy on 13 March 2019. The surgery was only performed on the left side. It is the applicant’s evidence that she made a “smooth recovery” following the surgery.
It is the applicant’s evidence that Dr Suttor recommended that she take six weeks off work to recover following the surgery. That she had planned to take two weeks sick leave following which she would work from home for the remaining four weeks. It is the applicant’s evidence that whilst her request to work from home was initially approved, it was revoked the day before the surgery. As a result, the applicant returned to work four weeks earlier than recommended. At the time of returning to work she was still feeling “very uncomfortable from the surgery” however it is her evidence that the recovery was going well.
It is the applicant’s evidence that on 2 May 2019 she was walking upstairs on campus when she missed her footing, tripped on her right foot and fell onto her right knee. She put her hands in front of her to try and break the fall and ended up sliding on her knee back down a couple of steps. By the time she had slid down, she had turned onto her side, landing on her right hip. It is her evidence that she immediately felt pain in her lower back.
The applicant continued to work on for the respondent following the injury on 2 May 2019.
It is the applicant’s evidence that on 14 July 2019 she was experiencing severe back pain which brought on a panic attack. An ambulance was called, and she was taken to Taree Hospital.
The applicant does not appear to have returned to work after 14 July 2019.
It is the applicant’s evidence that on 22 July 2019, she attended work at the request of
Toni Bellos, her “boss” to drop in some receipts and paperwork in regard to WorkCover. She was not working this day, just dropping off the requested paperwork. Whilst going over the crossing in the carpark, she rolled her ankle into a pothole and stumbled forward but did not fall. The applicant describes the stumble as “quite minor”, however she experienced immediate and overwhelming pain shooting from her ankle to her back.
On 2 December 2019 the applicant had further decompression spinal surgery. It is the applicant’s evidence that following this surgery she is still in “immense pain.”
On 7 July 2018 the applicant consulted the general practitioner (GP), Dr Furat Jajo. The clinical record of the consultation records that the applicant had been suffering from lower back pain, which was now getting worse, for five months. The doctor noted that in addition to suffering pain in her lower back the applicant had pain in the areas of both buttocks, pain shooting down both legs (right worse than left) as well as intermittent numbness and pins and needles to her right foot
On 7 July 2018 Dr Jajo referred the applicant to Dr Brian Hsu for an opinion and management of her lower back pain and disc prolapse. The referral, consistent with the clinical record of the same day, records that the pain was worse on the right side.[1]
[1] Reply p. 21.
On 20 July 2018 the applicant consulted the GP, Dr Emil Malferrari. The clinical record of the attendance records that the applicant presented with ongoing back pain and “c/w” her clinical complaint of left leg pain. A CT scan was reviewed, and the doctor noted a positive slump test on the left.[2]
[2] Reply p. 73.
On 28 July 2018 the applicant consulted the GP, Dr Anne Jolly. The clinical record of the attendance records that the applicant attended for back pain with radiculopathy. On 28 July 2018 Dr Jolly referred the applicant to Dr Bisham Singh, orthopaedic and spine surgeon, for an opinion and management for lower back pain and disc prolapse. This referral also noted that the pain was worse on the right side.[3]
[3] Reply p. 23.
On 6 August 2018 Dr Singh reported to Dr Jolly[4] that the applicant had been experiencing lower back and right leg symptoms for three months following the incident in the carpark and that the applicant had significant right leg symptoms (pain and numbness) in an L5 distribution.[5]
[4] Reply p. 34-36.
[5] Reply p. 72.
In or about late August 2018 the applicant completed a Motor Accident Personal Injury Claim Form for the injury sustained in the carpark on 8 March 2018. The applicant recorded the injury as being to her lower back and right leg with a diagram showing symptoms across the lower back and down the right leg to the knee. A medical certificate completed by Dr Jajo which forms part of the claim form records a diagnosis of lower back pain with radiculopathy, L4/5 disc prolapse and marks symptoms in the lower back and both legs on a diagram.[6]
[6] ARD pp. 1-11.
On 21 September 2018 Dr Jolly recorded that the pain for the first two days following an injection was much improved on the right side with minimal radiculopathy.[7]
[7] Reply p. 76.
On 5 October 2018 Dr Singh referred the applicant to Dr Sean Suttor,[8] orthopaedic surgeon, noting that the applicant had been suffering from right sided sciatica for some months following the motor vehicle accident.
[8] ARD p. 176.
On 5 October 2018 Dr Singh reported to Dr Jolly that a steroid injection and MRI scan had revealed an L5/S1 herniated disc which in the doctor’s opinion was responsible for the back and leg pain. Dr Singh also noted some bulging at the L4/5 level with signal changes.
[9] Reply p. 37.
Dr Singh at that time recommended a discectomy.[9]
On 8 November 2018 Dr Suttor reported to Dr Jolly[10] that since the motor vehicle accident the applicant had experienced a burning pain that radiated from her low back into her right leg. The pain was predominantly on the posterolateral aspect of the thigh extending down into the leg as well as affecting the big toe. The doctor noted that the applicant had managed the symptoms with analgesics including Palexia 200mg and Endep.
[10] ARD p. 160.
Dr Suttor also noted that an MRI scan of the lumbar spine demonstrated disc protrusions at L4/5 and L5/S1 narrowing the lateral recess and impinging the L5 and S1 nerves at those levels.
A Discharge Referral from Royal North Shore Hospital date 15 March 2019 records that the applicant presented for right L4/5 and L5/S1 discectomy with a principal diagnosis of right leg radiculopathy and lower back pain.[11]
[11] Reply 38-41.
On 20 March 2019 the applicant attended on the GP, Dr Swetha Thakkar. The clinical record of the consultation records that the surgical procedure went well, that the pain of radiculopathy was “better already” and that Endone had ceased. The applicant was given a prescription for Panadine Forte.[12]
[12] Reply p. 81.
On 25 March 2019 the applicant consulted the GP, Dr Eric Diu. The clinical record of the consultation relevantly records “Report back pain persist but radiculopathy pain down right leg.” Given the “but” in the sentence, it appears that the doctor intended to record that there was “no” radiculopathy pain down the right leg. In my view, this is supported by the subsequent clinical records which I shall come to. The clinical record also recorded that whilst the applicant was continuing to take Palexia she was doing so “at baseline now taking once daily.” The applicant had also ceased taking Endep but was prescribed Panadeine Forte two 30mg tablets twice daily.[13]
[13] Reply p. 81-82.
On 27 March 2019 the applicant consulted Dr Thakkar. The clinical record of the consultation records that the applicant was taking less Panadeine Forte (sometimes down to one) but more Panadol. However, the applicant did think that she “could need it” for the first few days after starting work. The doctor also noted that radiculopathy pain had not been present after surgery and that there was “[j]ust operative site pain”.[14]
[14] Reply p. 82.
On 1 April 2019 Dr Diu recorded that the applicant felt well enough to go back to work recording that she was “Recovering well. Wound healing well, mild localised back pain and no radiculopathy.” The prescription for Panadeine Forte two 30mg tablets twice a day was renewed.[15]
[15] Reply pp. 82-83.
On 10 April 2019 the applicant consulted Dr Thakkar. The clinical record of the consultation records that the applicant felt “much better”, that she was no longer taking Panadeine Forte, that she had also reduced the amount of Palexia she was taking to once per day and that she “sometimes” took Panadol. The clinical record also records that the applicant had no shooting pains down her right leg and no tingling or numbness. She did however have some ongoing back pain “due to her job and driving.” Whilst the clinical note records that Palexia was ceased as it was no longer required, it also records that the applicant was given a prescription for Palexia “IR” 50mg one tablet, three times a day for five days. The applicant had previously been prescribed Palexia one 200mg “SR” tablet twice per day. I take “IR” to stand for instant release and “SR” for slow release. Dr Thakkar also noted that a CT scan of the lumbar spine showed no new changes.[16]
[16] Reply p. 83.
On 12 April 2019 the applicant consulted Dr Sujeewa Dissanayake. The clinical record of the consultation records that the applicant was suffering from backache after spinal surgery and that whilst the applicant had previously asked for her dose of Palexia to be cut down it did not help her pain. The doctor recorded that apart from the back ache the applicant “feels fine.” The applicant was given a prescription for Palexia 200mg one tablet twice a day and Panadeine Forte two 30mg tablets twice a day.[17]
[17] Reply pp. 83-84.
The applicant consulted Dr Thakkar on 23 April 2019. The clinical record of the consultation records that since starting work the applicant had been experiencing more pain than during the post operation period. The applicant had no pain down her leg, just back pain. The prescription for Palexia 200mg one tablet twice a day was renewed.[18]
[18] Reply p. 84.
On 2 May 2019 the applicant consulted Dr Dissanayake. The clinical record of the consultation records that the applicant was “still having back pain” however she denied nerve pain in her legs. The applicant was prescribed Panadeine Forte two 30mg tablets three times a day.[19] This attendance appears to have occurred prior to the subject slip and fall incident at work on the same day.
[19] ARD p. 89.
On 7 May 2019 the applicant consulted the GP, Dr Fatima Malik. The clinical record of the consultation records that the applicant presented with “back pain”. The doctor recorded that the applicant had:
“[s]lipped at work last Thursday, was carrying a heavy bag. Fell forwards and broke fall on stairs but twisted back due to weight of bag. Severe pain last night, teary due to pain.”
Significantly the doctor also recorded that the applicant was experiencing “[n]umbness/tingling of her left toes.” A CT scan of the lumbar spine was requested with the doctor recording in respect to the request that the applicant “[t]ripped and fell 5 days ago with worsening back pain.” [20]
[20] ARD p. 89.
Also, on 7 May 2019 Dr Malik referred the applicant to Dr Suttor noting she had recently tripped and fallen forwards twisting her back whilst going up the stairs at work. Dr Malik reported that the applicant had suffered from worsening back pain since the fall and that a repeat CT scan had showed some changes from the post operation scan with marked narrowing of the disc space at L5/S1 with disc protrusion and marked canal narrowing of L4/5.[21]
[21] ARD p. 156.
Whilst the referral to Dr Suttor is dated 7 May 2019 it must have been completed on
8 May 2019 as the CT scan was not “collected” and reported on until 8 May 2019.
On 8 May 2019[22] the applicant consulted Dr Malik. The clinical record of the consultation records that the CT scan report was reviewed noting disc space narrowing at L4/5 with small left paracentral protrusion, facet joint arthropathy and canal narrowing at L4/5 as well as a small right posterolateral broad-based protrusion at L5/S1.
[22] ARD pp. 89-90.
Dr Malik also noted changes from previous scan on 3 April 2019, “now showing marked narrowing of disc space L5/S1 with disc protrusion and marked canal narrowing of L4/L5.”
The applicant was now reporting intermittent numbness/tingling of the right leg. The applicant was prescribed Mersyndol.
On 14 May 2019 Dr Suttor reviewed the applicant and reported to Dr Malik[23] that the applicant had a good initial response following the discectomies with relief of the burning neuropathic pain in the right leg, however the stumble and trip had “exacerbated” her lower back pain and the doctor noted that the applicant was still taking 200mg of Palexia a day.
[23] ARD p. 154.
Dr Suttor noted that a CT scan of the lumbar spine demonstrated no evidence of complication reporting that there was evidence of decompression at the L4 to S1 levels.
The applicant consulted Dr Diu on 20 May 2019. The clinical record of the attendance records that the prescription for Palexia was renewed.[24]
[24] ARD pp. 90-91.
On 22 May 2019 the applicant attended on the GP, Dr Monika Schuch. The clinical record of the consultation records that the applicant was suffering from pain in the gluteal region bilaterally which “radiates down”, pain radiating down her right leg to the foot, as well as pain in her left lower leg and foot. The applicant was prescribed Endep and Endone.[25]
[25] ARD p. 91.
On 5 June 2019 the applicant was prescribed Palexia.[26]
[26] ARD pp. 91-93.
On 13 June 2019 the applicant consulted Dr Schuch. The clinical record of the consultation records that the report for an MRI scan mentioned left sided L5/S1 disc protrusion with left L5 compression which had been seen on a CT scan in early 2018. The applicant was prescribed Endone.[27]
[27] ARD p. 93.
On 2 July 2019 the applicant consulted Dr Diu who prescribed the applicant Palexia[28] and on 5 July 2019 Dr Schuch prescribed Endone and Celebrex.[29]
[28] ARD pp. 93-94.
[29] ARD p. 94.
On 17 July 2019 the applicant consulted the GP, Dr Akm Islam. The clinical record of the consultation records that the applicant had been unable to go to work since Monday due to back pain. The applicant was prescribed Endone whilst Celebrex, Mersyndol and Endep were ceased.[30]
[30] ARD p. 94.
On 22 July 2019 the applicant consulted Dr Dissanayake who recorded that the applicant who was suffering from “excruciating back pain” and had attended for a sick certificate.[31]
[31] ARD p. 95.
On 25 July 2019 the applicant consulted Dr Schuch. The clinical record of the consultation records that the applicant had:
“recently been walking through Taree crossing a road at pedestrian crossing stumbled to her right side into a pot hole [sic], noticed a mild twinge in her back the next morning her pain was worse. Up to that time she had been continuing to work but since then has been unable. Note had an episode of chest pain went to Manning Hospital and was told it was anxiety feeling over it all, sick of experiencing pain.”
Dr Schuch also recorded that the applicant had a motor vehicle accident in May 2018 with some back pain afterwards, causing radicular pain, so had surgery, felt well went back to work, tripped up stairs and “since then has had more pain.” The applicant was prescribed Cymbalta, Endone and Palexia.[32]
[32] ARD p. 95.
On 26 July 2019 Dr Suttor reported to Dr Singh[33] that the applicant had returned with an MRI scan of her back which demonstrated good decompression on the right at L4/5 and L5/S1 which were the levels operated on, and that there was some lateral recess stenosis on the left at L4/5 which was not addressed surgically as the applicant was asymptomatic on the left side. The doctor reported that the applicant was getting bilateral symptoms which the applicant had reported as being worse on the left than the right.
[33] ARD p. 151.
In the opinion of Dr Suttor, the MRI scan was overall fairly benign in nature, demonstrating good decompression where the surgery had been performed. Dr Suttor suggested trialling an L4/5 epidural injection and some physiotherapy and, as a backup revision of the L4/L5 decompression could be considered if the symptoms did not settle down over time.
On 3 September 2019 Dr Suttor reported that in his opinion the fall at work on 2 May 2019 had exacerbated the applicant’s lower back pain and brought on bilateral leg pain symptoms. The doctor observed that the applicant was now complaining of bilateral lower limb radicular pain whereas before she had only right sided symptoms. The fall in the doctor’s opinion has been a substantial contributing factor to the exacerbation of pain symptoms and the need for injection and potential surgery would likely not be required at this stage in the absence of her fall.[34]
[34] ARD p. 149.
On 11 September 2019 Dr Suttor reported to Dr Singh[35] that it was over four months since the applicant’s fall at work which had exacerbated her symptoms and brought on her radiculopathy and back pain again. On reviewing her scans again, it was Dr Suttor’s opinion that the applicant had slight increased bulging of the L4/5 disc and now some stenosis again there. Given that the applicant was four months post injury and without any improvement,
[35] ARD p. 145.
Dr Suttor thought it would be reasonable to proceed with revision decompression surgery at L4/5.

Dr Suttor performed revision L4/5 decompression surgery on 2 December 2019.[36]
[36] ARD p. 131.
On 25 August 2023 Dr Parkinson reported that an MRI scan showed no evidence of neural compression but did show injured discs.[37]
[37] ARD p. 83.
On 8 March 2024 Dr Parkinson reported following injection procedures which did not have any impact on the applicant’s pain that he was of the opinion that it was likely that the applicant’s problem is discogenic pain and observed that the next step was a provocative discogram to identify the discs involved.[38]
[38] ARD p. 85.
On 19 April 2024 Dr Parkinson reported that a discogram confirmed L4/5 and L5/S1 as the pain generators. The doctor thought that the applicant would best be served by disc replacement at L4/5 and a fusion at L5/S1. The doctor thought it should be possible from a technical perspective, although the applicant had previously had abdominoplasty and hernia operated via an open approach. The doctor was to have the applicant reviewed by his approach surgeon, Dr Igor Banzic, to make sure he was happy to proceed with surgery in this manner.[39]
[39] ARD p. 84.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Pursuant to s 60 of the 1987 Act whether the proposed surgery 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
8 August 2025. Mr Adrian Coombs, counsel, instructed by Ms Larissa Atkinson, solicitor, appeared for the applicant, who was present. Mr Adel Saleh, counsel, instructed by Mr Chris Smith and Marry-Ann Ezzy, solicitors, appeared for the respondent. The proceedings were conducted on MS TEAMS. 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 (ARD);
(b)    Reply and attached documents; and
(c)    documents attached to Application to Lodge Additional Documents lodged on behalf of the respondent dated 1 August 2025 (RALAD).

Oral evidence

No oral evidence was adduced.

FINDINGS AND REASONS

It is not disputed that the applicant sustained injury to her lumbar spine on 2 May 2019 as alleged. The respondent however disputes that the anterior disc replacement surgery at L4/5 and anterior interbody fusion surgery at L5/S1 as recommended by Dr Jonathan Parkinson is reasonably necessary as a result of the accepted injury.
The respondent disputes both that the surgery is “reasonably necessary” and that the surgery is required as a result of the accepted injury.
Dr Jonathon Parkinson, neurosurgeon, having reviewed the applicant on 19 April 2024 recommended the surgery in his report of 23 May 2024, observing that the applicant would likely benefit from an anterior disc replacement at L4/5 and anterior interbody fusion at L5/S1.
Section 60(1) of the 1987 Act states:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
Note—
Compensation for domestic assistance is provided for by section 60AA.”
Section 60 requires that the treatment is “reasonably necessary” as a result of an injury.
Burke CCJ considered the expression “reasonably necessary”, then appearing in s 10 of the Workers Compensation Act 1926 (1926 Act) relating to treatment expenses, in some detail in Rose v Health Commission (NSW) [1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose). His Honour said at [42]:
“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.”
The “reasonably necessary” test was also considered in Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; (1997) 14 NSWCCR 233 (Bartolo). In Bartolo, Burke CCJ described the test of “reasonably necessary” as follows:
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
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 by Roche DP in Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab) where 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’.”

The fact that pre-existing condition(s) may be a factor in the need for the treatment does not mean that the proposed treatment is not a result of the injury. As Roche DP stated in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy):
“[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).”

“as a result of an injury”

For the respondent to be liable for the costs of and incidental to the proposed surgery the applicant needs to prove that the accepted injury materially contributes to the need for the surgery.[40]
[40] Murphy.

It is my view, and I find for the following reasons that the accepted injury on 2 May 2019 materially contributes to the need for the anterior disc replacement surgery at L4/5 and anterior interbody fusion surgery at L5/S1 as recommended by Dr Jonathan Parkinson.
I accept the applicant’s submission that the clinical records support that the applicant suffered a substantial increase in her back pain following the subject fall at work on
2 May 2019.
The clinical records clearly evidence that following the accident in the carpark in March 2018 the applicant suffered from ongoing lower back pain which worsened over time. Initially the applicant also had pain in both buttock areas, as well as shooting pain down both legs (right worse than left) as well as intermittent numbness and pins and needles in her right foot as noted by Dr Jajo on 7 July 2018.
Whilst the clinical note of Dr Malferrari of 20 July 2018 in particular focuses on the applicant’s left leg pain in addition to her back pain, there is little mention of left leg pain after that point in time.
By the time that the applicant comes to surgery in the form of an L4/5 and L5/S1 discectomy at the hands of Dr Suttor on 15 March 2019 the left leg symptoms have fully resolved, and the decompression surgery is only performed on the right side.
Prior to the surgery being performed on 15 March 2019 the applicant had, as noted by
Dr Suttor in his report to Dr Jolly of 8 November 2018 managed her symptoms with analgesics including Palexia and Endep. The applicant also prior to the surgery was being prescribed Endone 5mg, one tablet four time per day with prescriptions being given prior to the surgery on 14 February 2019, 21 February 2019 and 11 March 2019. Prior to the surgery the applicant’s prescription for Palexia was one 200mg SR tablet twice a day.
The surgery immediately relieved the applicant’s radicular symptoms with Dr Thakkar on
[41] Reply p.81.
20 March 2019 noting that the pain of radiculopathy was “better already.” The clinical records also support that initially there was a decrease in the pain relieving medication which the applicant was taking. At this time the prescription of Endone was ceased however this appears to have occurred due to the applicant’s dislike of Endone and the applicant wanting Padanadine Forte instead because it didn’t make her groggy. The applicant was prescribed two 30mg Panadeine Forte tablets three times per day for five days.[41]
By 25 March 2019 the applicant had reduced her reliance on Palexia to once per day, ceased Endep and the prescription of Panadeine Forte was reduced from two tablets three times per day to two tablets twice per day.
By 27 March 2019 the applicant only had operative site pain, and she had reduced her use of Panadeine Forte sometimes only taking one per day, she was however taking more Panadol.
By 1 April 2019, as recorded by Dr Diu, the applicant felt well enough to go back to work and at that time the applicant was only suffering from mild localised back pain.
The applicant continued to improve with the applicant reporting to Dr Thakkar on 10 April 2019 that she felt “much better.” At this point the applicant had also ceased taking Panadeine Forte, her consumption of Palexia was down to once per day and she was only taking Panadol “sometimes.” She had no right leg symptoms. She did however have some ongoing back pain which was attributed to her job and driving, the applicant having returned to work. The applicant’s prescription for Palexia was changed from slow release to instant release and cut down from one 200mg tablet twice per day to one 50mg tablet three times per day.
However, the applicant continued to suffer from backache and two days later on 12 April 2019 the applicant was returned to taking Palexia one 200mg slow release tablet twice a day after the applicant found that the reduced Palexia prescription did not assist her pain. There is no indication in the clinical records however that there was any change in the applicant’s back pain between the consultation on 10 April 2019 and 12 April 2019 rather it simply appears that the new regime of one 50mg instant release tablet three times a day was not effective.
On 23 April 2019 Dr Thakkar observes that the applicant had since starting work been experiencing more back pain than during the post operation period and the prescription of Palexia at one tablet twice a day was renewed.
The applicant attended on Dr Dissanayake on 2 May 2019, the day of the subject work incident. The applicant submitted that this must have been prior to the fall occurring at work. I accept that the attendance was prior to the fall. The clinical record contains no mention of the fall and whilst that is not necessarily determinative that the attendance occurred prior to the fall it is also the applicant’s evidence that she worked the rest of the day with back pain, that when she got home that afternoon she called her “boss” and reported what had happened and that when she woke the next morning she noticed how sore and tender she was from the fall the day before and thought that she should see a doctor which is also consistent with the consultation occurring prior to the fall.
Dr Dissanayake recorded on 2 May 2019 that whilst the applicant was still having back pain she denied nerve pain and the applicant was prescribed Panadeine Forte two 30mg tablets three times per day.
Thus, whilst at the time of the fall at work on 2 May 2019 the applicant had persisting back pain she had not suffered from any radicular leg symptoms since the surgery. Whilst the applicant had persisting back pain the applicant had seen a steady improvement in her back pain post-surgery to the point where prior to returning to work, only some two weeks after the surgery, the site of that pain appears to have been restricted to the operative site.
The applicant also had a general decrease in the pain relief medication that she was taking. That decrease in medication appears to have initially continued even after she commenced back at work even though she seems to have been suffering from back pain as noted by
Dr Thakkar on 10 April 2019 due to her job.
The applicant, having returned to work against medical advice some two weeks into a recommended six week recuperation period following surgery, has experienced an increase in her back pain with her return to work but does not appear to have experienced any particular flare ups at any point.
I do not accept the respondent submission that the applicant’s evidence that she was making a “smooth recovery” following the surgery in March 2019 is not consistent with the clinical records and what is reported by her. The evidence supports that the applicant did make a “smooth recovery” following the surgery particularly prior to her returning to work only some two weeks later. The applicant had no radicular symptoms and whilst she did experience some persisting back pain, by the time she returns to work this appears to have been limited to the site of the surgery. Whilst the applicant did not cease taking pain relieving medication there was a significant reduction in that medication before her use of medication again increased following her return to work.
Whilst the applicant did experience increased lower back pain following her return to work the applicant had returned to work two weeks after the surgery when the recommendation had been that she take six weeks off work following surgery to recuperate. The applicant appears to have expected and anticipated a worsening of her symptoms with such an early return to work however even with her return to work she does not appear to have experienced any flare ups in her pain.
Whilst the applicant was still suffering from back pain prior to the fall at work on 2 May 2019 the evidence supports that the applicant suffered a significant aggravation of her condition.
It is the applicant’s evidence that with the fall at work on 2 May 2019 she immediately felt pain in her lower back. That the next morning she noticed just how sore and tender she was and that the following day, 4 May, she was still very sore and started to get concerned. She had thought that she would just rest, and the pain would get better. However, the pain worsened so she went to her GP to get everything checked out.

Dr Malik’s clinical note of 7 May 2019 supports that the applicant did suffer an increase in symptoms following the fall on 2 May 2019. Whilst the doctor in the clinical record of the attendance recorded that the applicant had experienced severe pain the night before and that she was teary, the clinical record also recorded in respect to the referral for a CT scan that the applicant had suffered worsening back pain since the trip and fall which the doctor also recorded in the referral to Dr Suttor of the same date.
Significantly the doctor also noted numbness/tingling in the toes of the applicant’s left foot. Prior to the back surgery on 15 March 2019, it had been the right leg which had been symptomatic. This is the first record of any leg symptoms following the surgery on 15 March 2019 with the clinical records consistently and repeatedly recording following the surgery and prior to the fall on 2 May 2019 that the applicant was not suffering from any leg pain.
The applicant’s symptoms deteriorate from this point with Dr Schuch recording on
22 May 2019 that the applicant was suffering from pain in the gluteal region with pain radiating down the right leg to the foot as well as pain in the left lower leg and foot. On
17 July 2019 Dr Islam notes that the applicant has been unable to go to work since Monday due to her back pain. On 22 July 2019 Dr Dissanayake notes that the applicant was suffering from “excruciating back pain.”
In my view the evidence clearly establishes that the applicant suffered a significant increase in symptoms with the incident at work on 2 May 2019. Whilst the applicant’s lower back continued to be symptomatic, a fact which is accepted by the applicant in the submissions made on her behalf, the evidence supports that not only was there an increase in her back pain with the slip and fall at work but that the applicant also developed lower limb symptoms following the fall. The lower limb symptoms were initially relatively minor with some intermittent numbness/tingling in the toes of the left foot however the symptoms rapidly progressed to the gluteal region as well as pain in both legs and feet.
I do not accept the respondent’s submission that the incident on 2 May 2019 was minor and does not contribute to any need for the proposed surgery.
In the respondent’s submission the description of what happened on 2 May 2019 in her statement which was made more than five years after the fall is in part an “invention.” I do not accept the respondent’s submission.
It is the applicant’s evidence that in the incident on 2 May 2019 she was walking up some stairs when she missed her footing. This caused her to trip on her right foot and fall onto her right knee. She put her hands in front of her to try and break the fall and ended up sliding on her knee back down a couple of steps. By the time she had slid down, she had turned onto her side, landing on her right hip.
In the respondent’s submission the incident was transient and had little to know impact on her already significant symptoms following the motor vehicle accident and the surgery on
13 March 2019 as there is no mention of the fall in the clinical record of Dr Dissanayake of
2 May 2019. For reasons I have already given I am of the view that the fall occurred after the consultation with Dr Dissanayake on 2 May 2019.
In the respondent’s submission the report of injury (Hotline Report) completed on
8 May 2019 is inconsistent with the applicant’s statement evidence and records a less physically violent incident.
Prior or at around the same time that the report of injury being completed on 8 May the applicant consulted Dr Malik on 7 May. The clinical record of Dr Malik of 7 May records that the applicant “[f]ell forwards and broke fall on stairs but twisted due to weight of bag.” The history recorded in the clinical record is, as one would expect compared to the applicant’s statement evidence briefer, but is however in my view broadly consistent, recording the fall, the fall being broken on the stairs which is consistent with the applicant’s evidence that she put her hands out to break the fall and her twisting her back which is consistent with her statement evidence that she turned onto her side.
The Hotline Report completed on 8 May 2019 records that the applicant was walking upstairs with “heavy laptop bag in hand” when she had a “minor slip, lost balance, missed step as laptop bag was heavy and slid down her shoulder/arm.”[42] The description of the event recorded is very brief, and significantly whilst the report does appear to have been forwarded to the applicant to check that the details were correct was not completed by the applicant. Significantly the report is missing some of the details recorded in the clinical record of
[42] ARD p. 10.
Dr Malik which was completed about the same time as the Hotline Report.
In the respondent’s submission the description of the event recorded by Dr Murray Hyde Page, orthopaedic surgeon, in his forensic report to the respondent dated 29 April 2024 is also inconsistent with the applicant’s statement evidence. In particular, in the respondent’s submission, the doctor does not record the applicant falling onto her hip or right knee.
Dr Hyde Page records a history that the applicant was carrying a laptop as well as a handbag, that she slipped whilst walking up some stairs falling forward and her feet slipped below the step which she was on.
As with the clinical record of Dr Malik I am of the view that the history of the incident recorded by Dr Hyde Page is broadly consistent with the applicant’s statement evidence with the doctor recording that the applicant slipped, fell forward and that her feet slipped below the step which she was on. Dr Hyde Page simply does not record what position the applicant eventually ended up in on the stairs and nor does the doctor record what became of the applicant’s handbag and laptop in the fall.
In support of it is submission the respondent also referred to the description of the event contained in the Certificate of Capacity of 10 May 2019 which again in my view, whilst very brief, is broadly consistent with the applicant’s statement evidence recording that the applicant tripped, fell forwards and twisted her back as she fell due to the heavy bag on her left shoulder. The description in the Certificate of Capacity simply does not record where the applicant ended up after the fall or what happened with her feet, other than that she tripped.
In support of its submission that the incident on 2 May 2019 was minor and does not contribute to any need for the proposed surgery the respondent also relied on the applicant continuing to work that day following the fall and being certified fit for pre-injury duties in the Certificate of Capacity completed on 10 May 2019. I do not accept the respondent’s submission.
Whilst the applicant did work the rest of the day following the fall it is her evidence that with the fall, she immediately felt lower back pain and that she continued to work the rest of the day with low back pain. It is also the applicant’s evidence that she took the following day off and rested after waking up sore and tender and that on 4 May 2019 she was still “very sore”, and she started to get concerned. By the time the applicant attends on Dr Malik on
7 May 2019 she has suffered from severe pain that has made her teary and she is experiencing numbness/tingling of her left toes.
On 10 May 2019 when the Certificate of Capacity is provided to the applicant, Dr Malik records in the clinical record of the consultation that the applicant had exacerbated her back pain in the incident on 2 May 2019. The Certificate of Capacity records as the injury the slip and fall on 2 May 2019 not the previous motor vehicle accident or surgery which are only recorded as pre-existing factors which may be relevant to the condition.
It is the applicant’s evidence that on Sunday 14 July 2019 she was experiencing severe back pain which brought on a panic attack. That an ambulance was called and she was taken to Taree Hospital. That she was provided with a certificate that spanned from 15 July 2019 to
5 August 2019 and that she does not believe that she returned to work after this.
The respondent submits that the applicant did not attended hospital because of her chronic back pain but because of right sided atypical chest pain. I do not accept the respondent’s submission.
The respondent relies on a Discharge Referral from the Manning Base Hospital dated
14 July 2019 (a Sunday) in support of its submission. In the respondent’s submission the triage nurse notes describe a sudden onset of right sided chest pain radiating to her shoulder and records only a history of chronic back pain.
Whilst I accept that the applicant attended the hospital as a result of the chest pain, which is not inconsistent with the applicant’s evidence, I cannot make any findings based on the Discharge Referral as to whether the applicant was also suffering from severe back pain at the time as the respondent has only put into evidence the first of the three pages of the Discharge Referral.
However, the clinical record of Dr Islam of 17 July 2019 does not support the respondent’s submission as Dr Islam records that the applicant had not been able to work since Monday due to back pain with the applicant being prescribed Endone whilst other medications were ceased.
It is the applicant’s evidence that on 22 July 2019 her “boss” Toni Bellos asked her to attend campus to drop in some receipts and paperwork in regard to Workcover. That she drove to work and after parking her car she rolled her ankle into a pothole and stumbled forward without falling whilst walking over the crossing in the staff carpark. It is the applicant’s evidence that whilst the stumble was quite minor, she felt immediate and “overwhelming” pain shooting from her ankle to her back.
In the respondent’s submission the incident on 22 July 2019 did not occur at work. In support of its submission the respondent relies on the clinical record of the applicant’s attendance on Dr Schuch on 25 July 2019. Dr Schuch recorded a history that the applicant had “recently been walking through Taree crossing a road at pedestrian crossing stumbled to her right side into a pot hole.”
The clinical record as to where the incident occurred is not necessarily inconsistent with the applicant’s evidence as the applicant, as I understand, worked at the respondent’s campus located in Taree. However, it is not necessary to determine whether the applicant was or was not at her place of work at the time of the incident as the applicant does not rely on this incident in support of her claim.
The respondent submits that the clinical record of Dr Schuch of 25 July 2019 is also of importance as it records a history that on the morning following the incident with the pothole the applicant’s pain was worse. In the respondent’s submission if something is worse, it must indicate that it was better at some point which indicates that by the time of the pothole incident anything that happened on 2 May 2019 would have recovered to an extent that the incident that occurred on 22 July 2019 made it worse. I do not accept the respondent’s submission. The respondent’s logic is inherently flawed. Something does not have to improve for it to be capable of worsening.
The clinical evidence also does not support that the applicant had prior to the incident on
22 July 2019 return to the state that she was in prior to the slip and fall at work on
2 May 2019. The applicant had not worked due to her back pain since 15 July 2019 and there is no evidence that the applicant’s lower limb symptoms which had developed following the incident on 2 May 2019 had resolved.
In the respondent’s submission it is not until 22 July 2019 that the applicant is completely unfit for work; not from the date of the subject fall at work on 2 May 2019. The applicant in fact appears to have ceased work from 15 July 2019. In any event the respondent submits that it is not until after the event involving the pothole on 22 July 2019 that Dr Suttor recommends surgery (not the surgery the subject of these proceedings) for the first time following the work incident on 2 May 2019.
On 26 July 2019 Dr Suttor reported to Dr Singh. Dr Suttor did not recommend surgery. What Dr Suttor suggested was trialling an L4/L5 epidural injection and some physiotherapy. As a “backup” the doctor stated that “we could consider” revision L4/L5 decompression if the applicant’s symptoms did not settle down over time.
In the respondent’s submission Dr Suttor in his report of 26 July 2019 did not refer to either the subject work incident on 2 May 2019 or the incident involving the pothole on 22 July 2019 which would indicate that the ongoing symptoms related to the injury sustained in the motor vehicle accident. I do not accept the respondent’s submission.
Dr Suttor in his report to Dr Singh of 26 July 2019 does not comment at all on injury. The doctor does provide recommendations in respect to treatment. Those recommendations are based on the applicant’s complaints of lower limb symptoms and the results of an MRI scan. Significantly the applicant did not have any lower limb or radicular symptoms following the surgery on 15 March 2019 until she had the subject fall at work. Furthermore, Dr Suttor notes that the MRI demonstrated good decompression at the previous operated levels on the right whilst noting that there was some recess stenosis at L4/5 on the previously asymptomatic and non-operated left side. The report of Dr Suttor of 26 July 2019 assists the applicant’s case and not that of the respondent.
In the respondent’s submission an email dated 26 August 2019 from solicitors who had previously acted for the applicant which recommended that a report be obtained from the applicant’s GP explaining a downgrade in the applicant’s work capacity contains no reference to the workplace incident that occurred in July 2019. Whilst the respondent’s submission was in respect to the incident in July 2019 I assume that it was intended to refer to the subject incident on 2 May 2019. In the respondent’s submission the email is attempting to overcome this non work-related incident in some way and I am asked to draw that inference from the email. I do not draw any such inference.
The email is clearly a response to prior communications the contents of which are not in evidence and not known. Furthermore, the applicant had been off work since 15 July 2019 and had in the applicant’s evidence been attending work on 22 July 2019 to drop off papers relating to her workers compensation claim.
Turning to the forensic reports the applicant relies on forensic reports of Dr Renata Abraszko, neurosurgeon and spinal surgeon.
Dr Abraszko in a report dated 14 December 2024[43] records a history of the motor vehicle accident in March 2018 as well as the applicant’s subsequent treatment including surgery, the incident at work on 2 May 2019 as well as the incidents involving the panic attack on
[43] ARD pp. 60-69.
14 July 2019 and the rolling of her ankle into a pothole on 22 July 2019.
In the opinion of Dr Abraszko as a result of injury on 2 May 2019, the applicant aggravated her previous disc protrusions at L4/L5 and L5/S1 levels, for which she had surgery in “2018”. The reference to the surgery having occurred in 2018 appears to be a typographical error as the doctor under the heading “Past medical history” records a history of Dr Suttor performing a L4/5 and L5/S1 laminectomy and discectomy on 13 March 2019. That it is a typographical error is confirmed by the doctor observing that the applicant returned to work “very quickly” following the surgery.
In the opinion of Dr Abraszko this aggravation then became permanent, and the applicant now suffers from discogenic back pain. In the opinion of Dr Abraszko, the mechanism of injury is consistent with the fall, described by the applicant on 2 May 2019.
In the opinion of Dr Abraszko, the work incident on 2 May 2019 contributes to the need for the proposed surgery, the applicant having sustained disc injuries as a result of this injury and suffering from discogenic back pain. In the opinion of the doctor the incident in May 2019 caused aggravation of the previously asymptomatic discs, and development of discogenic back pain, which requires surgery. In the doctor’s opinion the applicant would not require surgery for her discogenic back pain, if she did not sustain a fall at work in May 2019. The doctor observed that the applicant was doing very well after her previous surgery, she was performing all work duties, all her household duties without restrictions and she was not taking any pain medications.
Dr Abraszko provided a further forensic report to the applicant dated 15 April 2025.[44] In that report Dr Abraszko notes that an MRI scan of the lumbar spine performed on 29 May 2019 revealed the right L4/5 and L5/S1 hemi-laminotomies and micro-discectomies with no residual nor recurrent disc impinging on the L5 or S1 nerve roots as well as an L4/5 disc bulge which may be impinging on the left L5 nerve root in the lateral recess.
[44] ARD pp. 70-75.
The results of the MRI scan of the lumbar spine in the doctor’s opinion provides objective evidence of L4/L5 disc protrusion impinging on the left L5 nerve root, which was the reason for the applicant’s back pain, as a result of tripping and twisting her lumbar spine on
2 May 2019.
I accept the opinion of Dr Abraszko that the applicant suffered an aggravation of her previous disc injuries as a result of the incident on 2 May 2019 and that the aggravation has not ceased. The doctor’s opinion is consistent with the clinical records which as previously discussed evidence a significant aggravation in the applicant symptoms with the 2 May 2019 slip and fall at work with the applicant suffering from increased back pain and the recurrence of lower limb symptoms. There is no evidence that the applicant’s lower limb symptoms and back symptoms have settled at any point following the incident on 2 May 2019.
The doctor’s opinion is also consistent with the opinions of the applicant’s treating surgeon Dr Suttor, which I also accept, who reported to Dr Malik on 14 May 2019 that the applicant did have a good initial response to the surgery in March 2019 with relief of the burning neuropathic pain in the right leg, however the stumble and trip at work had exacerbated her lower back pain symptoms.
On 3 September 2019 Dr Suttor reported that the incident on 2 May 2019 had exacerbated the lower back pain and brought on bilateral leg pain symptoms with the applicant complaining of bilateral lower limb radicular pain whereas before she had only right sided symptoms. In Dr Suttor’s opinion the fall has been a substantial contributing factor to her exacerbation of pain symptoms. In the doctor’s opinion the need for injection and potential surgery (revision decompression surgery) would likely not have been required at that stage in the absence of her fall.[45]
[45] ARD p. 149.
On 11 September 2019 Dr Suttor reported to Dr Bisham Singh[46] that the applicant was over four months since her fall at work which had exacerbated her symptoms and brought on her radiculopathy and back pain again. On reviewing her scans again Dr Suttor observed that the applicant had a slight increased bulging at the L4/L5 disc and now some stenosis again there. The doctor recommended at that stage proceeding with the decompression surgery.
[46] ARD p. 145.
I accept the respondent’s submission that that Dr Abraszko incorrectly records that the applicant was pain free and ceased taking any pain relief medication until the fall at work on 2 May 2019. I also accept the respondent’s submission that whilst Dr Abraszcko had reviewed the CT scan of 3 April 2019 the doctor does not comment on the scan or refer to the scan when providing the opinion that the applicant had aggravated her previous disc protrusions at L4/L5 and L5/S1 levels as a result of the incident on 2 May 2019.

However, whilst the applicant was not pain free prior to the fall and had not ceased taking pain relieving medication the applicant’s condition had improved following surgery in
March 2019 with the most notable improvement being the relief of the previously troublesome right lower limb symptoms.
Whilst Dr Abraszko did review the CT scan of the lumbar spine of 3 April 2019 the doctor did not refer to the scan in any meaningful way in her reports. I am however of the view that nothing turns on this. For reasons which I will give below in respect to the opinion of
Dr Murray Hyde Page I am of the view that the radiological scans performed following the incident on 2 May 2019 do show significant changes compared to the CT scan performed on 30 April 2019. Significantly Dr Abraszko notes and relies on the findings of the MRI scan of the lumbar spine performed on the 29 May 2019.
The respondent relies on the opinion of Dr Murray Hyde Page, orthopaedic surgeon, who has provided a series of reports to the respondent.
Dr Hyde Page in his report of 26 June 2024 observes that looking at the GP clinical records:
“there is no doubt that she does appear to have had an exacerbation of her symptoms after the fall up the stairs on 2 May 2019. The GPs are now prescribing regular strong pain medication. The entry suggests that her back pain was now much more severe, as distinct from when she was showing improvement after the surgery, before the incident on 2 May 2019.”[47]
[47] ARD p. 57.
Dr Hyde Page goes on in his report of 26 June 2024 to state:
“Now I have had the opportunity to read the full GP notes, I have concluded that the exacerbation at work on 2 May 2019 appears to have aggravated her recovery from the back surgery and the aggravation did not settle.”
Dr Hyde Page in his report of 12 May 2025 repeats an opinion that he expressed in his report of 26 June 2024 that there is a sequence of increasing low back pain and sciatica following her surgery on 15 March 2019 and states:
“Overall, it appears that the incident on 2 May 2019 at work and the incident stepping into the pothole in July 2019, are just two events in continuous documentation of pain and sciatica after her spinal surgery, where at no time did, she appear to have a good recovery after the surgery.”[48]
[48] Reply p. 47.
In his report of 12 May 2019 whilst the doctor is of the opinion that the need for the proposed surgery is directly related to the motor vehicle accident in March 2018 and “not at all related to the injuries on 2 May 2019 and 14 July 2019.” The doctor continues to concede that the incidents on 2 May 2019 and 14 July 2019 aggravated the pre-existent injury and surgery that was undertaken for the motor vehicle accident injury.[49]
[49] Reply p. 47.
Dr Hyde Page in his final report of 22 July 2025 observed that a CT scan of the lumbar spine on 3 April 2019 after her surgery 15 March 2019 and before her work injury on 2 May 2019, shows there was still a broad-based disc protrusion at L4/5 and canal narrowing. At L5/S1 there was moderate narrowing of the disc space.
The doctor was also of the opinion that a CT scan of the lumbar spine on 2 May 2019, after her work injury, does not show any significant change from the CT scan performed on
3 April 2019.
Dr Hyde Page observed that he had previously noted that the applicant was not making a good recovery from her two-level disc excisions surgery performed in March 2019. In the doctor’s opinion that surgery was not successful, and her presentation is now due to this unsuccessful surgery and not due to the work injury on the 2 May 2019. The doctor confirmed his previous opinion that the subject proposed surgery is not reasonably necessary as a result of the incident on 2 May 2019.
I do not accept the opinion of Dr Hyde Page.
Even though Dr Hyde Page has had the opportunity to review the applicant’s clinical records the opinion of Dr Hyde Page seems to assume that the applicant had ongoing sciatic pain following the surgery on 15 March 2019 and prior to the incident at work on 2 May 2019 and as previously discussed that is not the case. It is not until after the incident on 2 May 2019 that the applicant develops sciatic symptoms.
Dr Hyde Page identifies the failure of the back surgery in March 2019 as the cause of the need for the proposed surgery. However, on the procedure performed on 15 March 2019 was only per formed to decompress the right side the applicant’s spine. The left side being asymptomatic in respect to left lower limb symptoms prior to the surgery.
The opinion of Dr Hyde Page does not engage with the fact that following the incident on 2 May 2019 the applicant initially had symptoms in her left foot and went onto develop symptoms in both legs and both feet and significantly the symptoms on the left previously asymptomatic non operated on side being worse.
Dr Hyde Page relies for his opinion upon CT scans of the lumbar spine dated 3 April 2019 and 8 May 2019 which according to Dr Hyde Page show no significant change. However, the doctor does not explain the change in the applicant’s symptoms with the development of lower limb symptoms following the incident at work on 2 May 2019.
Whilst Dr Hyde Page observed that the CT scan of 3 April 2019 showed that there was “still” a broad based disc protrusion at L4/5 with canal narrowing, what the doctor omitted from his observation in respect to the CT scan in respect to his opinion was that the disc protrusion was to the left. The left side was not operated on by Dr Suttor on 15 March 2019 as it was asymptomatic, however Dr Suttor was aware of the left sided disc bulge prior to performing the surgery. Dr Hyde Page is therefore basing his opinion on the surgery having failed on a condition which was not the subject of the surgery. Furthermore, the scan of 8 May 2019 is reported as showing the protrusion of the L4/5 disc abutting against the thecal sac an observation which is not recorded on the CT scan report of 3 April 2019. Also at the L4/5 level the report for the scan of 8 May 2019 refers to “[m]arked” canal narrowing where the report of 3 April 2019 records “[m]oderate” canal narrowing.
In respect to the L5/S1 level Dr Hyde Page observed that the CT scan of 3 April 2019 was reported as showing “moderate” narrowing of the disc space however the report for the scan of 8 May 2019 records “marked” narrowing of the disc space. The CT scan of 8 May 2019 is also reported as showing a “[s]mall right posterior lateral protrusion of the disc, protruding slightly into the right lateral recess” whilst the scan of 3 April 2019 reports “[n]o disc protrusion evident.”
There are clearly changes when comparing the two CT scan reports which Dr Hyde Page does not address. That there are changes present is also supported by the observations of Dr Malik in the doctors referral to Dr Suttor of 7 May 2019 and the clinical record of
8 May 2019 in which Dr Malik observed that a repeat CT scan had shown changes from the post op scan with marked narrowing of disc space L5/S1 with disc protrusion and marked canal narrowing of L4/5. Dr Malik’s observations are consistent with my own comparison of the reports relating to the scans.
Furthermore, and inconsistent with the surgery on 15 March 2019 having been unsuccessful Dr Suttor reported to Dr Singh on 26 July 2019[50] that an MRI scan of her back demonstrated good decompression on the right at L4/5 and L5/S1 which were the operated levels whilst noting that there was some lateral recess stenosis on the left at L4/L5 which had not been addressed surgically as the applicant was asymptomatic on the left side.
[50] ARD p. 151.
The MRI scan of the applicant’s lumbar spine was reported on by Dr Niranjan Ganeshan on 29 May 2019.[51] This is the MRI scan referred to by Dr Abraszko. Dr Ganeshan reported that at the L4/5 level there was no residual or recurrent disc impinging on the right L5 nerve root and no L4 root compression but there was on the left (non-operated previously asymptomatic side) lateral recess narrowing where there may very well be impingement of the L5 nerve root. At the L5/S1 level the doctor also reported that there was no residual or recurrent disc impinging on the right S1 nerve root.
[51] ARD p. 153.
Whilst there may be other causes such as the injury sustained in the 2018 motor vehicle accident contributing to the need for the proposed surgery I am of the view having considered the evidence that the incident at work on 2 May 2019 materially contributes to that need for the above reasons:

“reasonably necessary”

Deputy President Roche in Diab set out provides a non-exhaustive listed of matters to be considered when considering the reasonableness of proposed treatment. I now turn to a consideration of those matters.
(a) the appropriateness of the particular treatment.
In the opinion of Dr Parkinson and Dr Abrazsko the treatment is appropriate.
Whilst Dr Hyde Page is of the opinion that the prospects of successful surgery are not particularly good overall. The doctor noted that the applicant had now had two surgeries to the lumbar spine, and her condition had deteriorated. The doctor also observed that the main reason for doing the further two level spinal surgery is due to axial low back pain rather than sciatica pain which is usually not a good indication for a spinal fusion and disc replacement. However, in the doctor’s opinion it needed to be taken into account that the applicant has had a poor result from her previous two operations and there could be instability and that the further surgery could correct and reduce her symptoms. Dr Hyde Page also observed that, the fact that the discograms were positive for replication of pain is an indication to for the surgery.
This factor weighs in favour of the surgery being reasonably necessary:
(b) the availability of alternative treatment, and its potential effectiveness.
There is on the evidence no alternative treatment. Whilst Dr Hyde Page observed that the alternative treatment would be to continue with conservative treatment the doctor also noted that the applicant had been through conservative treatment and that had been exhausted. In the opinion of Dr Hyde Page there really are no other non-operative treatment options now available.
This factor weighs in favour of the surgery being reasonably necessary:
(c) the cost of the treatment.
Whilst the costs of the surgery are significant, liability for such surgery is reasonably frequently accepted and paid for at workers compensation.
This factor weighs in favour of the surgery being reasonably necessary.
(d) the actual or potential effectiveness of the treatment.
Dr Abraszko appears to be reasonably confident that the surgery will improve the applicant’s symptoms. Whilst Dr Hyde Page has reservations as to the potential effectiveness, he concedes that there are indicators for the surgery. Dr Parkinson is of the view that the applicant would “likely” benefit from the surgery.
In my view this factor weighs in favour of the surgery being reasonably necessary.
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
All the doctors’ opinions in evidence accept that in the applicant’s circumstances the surgery is appropriate.
I am of the view that the factors weigh in favour of the proposed surgery being reasonably necessary.
For the above reasons I am of the view and find that the anterior disc replacement at L4/5 and anterior interbody fusion at L5/S1 surgery recommended by Dr Parkinson is “reasonably necessary.”
Therefore, for the above reasons, I find that the anterior disc replacement at L4/5 and anterior interbody fusion at L5/S1 surgery recommended by Dr Parkinson is reasonably necessary as a result of the accepted injury sustained on 2 May 2019.

[2025] NSWPIC 477

12 September 2025