Willing v Berry Rural Co-Operative Society Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Willing v Berry Rural Co-Operative Society Ltd [2025] NSWPIC 188
APPLICANT:	Jodie Willing
RESPONDENT:	Berry Rural Co-Operative Society Ltd
MEMBER:	John Isaksen
DATE OF DECISION:	6 May 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for the respondent to pay for the cost of a L4/5 total disc replacement and L5/S1 anterior lumbar interbody fusion; whether the worker continues to suffer the effects of the work injury or whether the worker’s lower back condition is the natural progression of degeneration in the lower back; whether the proposed surgery is appropriate; consideration of Tray Fit Pty Ltd v Cairney; whether spinal surgery is reasonably necessary as a result of the injury; consideration of Murphy v Allity Management Services Pty Ltd and Rose v Health Commission (NSW); Held – worker continues to suffer the effects of the work injury; the L5/S1 anterior lumbar interbody fusion is reasonably necessary as a result of the injury sustained by the worker but not the L4/5 total disc replacement; order pursuant to section 60 (5) is not warranted having regard to the evidence and the claim made by the worker.
DETERMINATIONS MADE:	The Commission determines: 1. Surgery by way of an anterior lumbar interbody fusion at L5/S1 is reasonably necessary treatment as a result of the injury sustained by the applicant on 21 September 2020 pursuant to s 60 (1) of the Workers Compensation Act 1987. 2. No orders are made by the Commission in regard to this dispute. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant in these proceedings, Jodie Willing, sustained an injury to her lower back on 21 September 2020 while employed as a factory worker with the respondent, Berry Rural Co-operative Society Ltd.
The applicant was lifting a grate over a drain which had become clogged when she experienced sudden pain through her lower back.
The applicant has undergone various forms of conservative medical treatment, including steroid injections, PRP injections, and different medications. The applicant now seeks an order pursuant to s 60 (5) of the Workers Compensation Act 1987 (the 1987 Act) that the respondent pay for the costs of a L4/5 total disc replacement and L5/S1 anterior lumbar interbody fusion which has been proposed by her current treating neurosurgeon, Dr Huang.
The respondent initially accepted liability for the injury sustained by the applicant on
21 September 2020. However, the respondent subsequently denied liability in a dispute notice issued on its behalf by icare on 28 June 2022 on the grounds that the applicant did not have a total or partial incapacity for work resulting from the work injury and that medical or related treatment was not reasonably necessary as a result of the work injury.
A review notice was issued by icare on 2 November 2023 wherein it was stated that, based upon the opinion of Dr Casikar in a report dated 24 May 2022, the work-related aggravation had ceased.
There was also an earlier dispute notice dated 5 May 2022 which disputed a request from the applicant’s then treating neurosurgeon, Dr Mobbs, for a L5/S1 anterior lumbar interbody fusion on the grounds that this surgery was not reasonably necessary as a result of the applicant’s work injury.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the L4/5 total disc replacement and L5/S1 anterior lumbar interbody fusion proposed by Dr Huang is reasonably necessary as a result of the injury sustained by the applicant on 21 September 2020 (s 60 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was listed for conciliation and arbitration on 29 April 2025. Mr Barter appeared for the applicant, instructed by Mr Carrick. Mr Loukas appeared for the respondent, instructed by Mr Khoshaba.
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 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, and
(c)    Application to Lodge Additional Documents filed by the applicant on 7 April 2025.

Oral evidence

There was no application to adduce oral evidence from the applicant or to cross examine the applicant.

The applicant’s evidence

The applicant has provided statements dated 20 February 2024 and 11 February 2025.
The applicant states that she was diagnosed with scoliosis when she was 14 years of age. She states that she developed back pain while working at Liquorland in 2009, but she was able to return to full duties after a few weeks.
The applicant states that she commenced employment as a factory worker with the respondent in March 2009. She states that she worked part time for 24 hours per week. She states that her duties included putting yoghurt and cream products into crates and stacking crates onto pallets, and also labelling and capping bottles.
The applicant states that on 21 September 2020 she was instructed by her manager to unclog a drain. She states that as she felt a sudden pain through her lower back when she lifted the grate off the drain. She states that she attended her general practitioner at Mollymook Medical Centre on 28 September 2020 and was referred for scans.
The applicant states that she has had steroid injections and PRP injections, but neither of those forms of injection have been helpful.
The applicant states that she was admitted to Milton Hospital on 12 January 2024 due to a severe aggravation of her condition.
The applicant states that she continues to have very bad pain in her lower back, and pain and numbness and pins and needles in both legs. She states that her daughter comes to her house most days to do household duties because the applicant has great difficulty performing many activities of daily life.
The applicant states that she takes Oxycontin, Clonidine and anti-inflammatory medication every day. She states that she sweats profusely due to her pain. She states that he sees a psychologist every two weeks because of the effects of her injury.
The applicant states that she has been advised by Dr Huang that she will never be pain free, and that her symptoms will only worsen without the proposed surgery. She states that she wishes to proceed with surgery recommended by Dr Huang.
The applicant states that she would undergo pain management if that treatment was paid for by the insurer. However, she also states that she does not believe that pain management is going to fix her problem and that the proposed surgery is the best approach she can take.

The medical evidence

There are clinical notes in evidence from Mollymook Medical Centre which cover a period from 2 March 1999 to 2 March 2023. There are many references to the applicant attending the Centre for lower back pain in those clinical notes prior to the work injury on
21 September 2020, some of which are:
(a)    an entry made by Dr Devlin on 17 January 2011 of “acute on chronic LBP” and the prescription of Oxycontin and Endone;
(b)    an entry made by Dr Devlin on 2 February 2015 of “LBP – usual pattern” and the prescription of Endone and Mersyndol Forte;
(c)    an entry made by Dr Devlin on 18 February 2016 of “acute on chronic LBP – usual pattern” and the prescription of Endone;
(d)    an entry made by Dr Devlin on 30 October 2019 of “chronic LBP – unchanged” and the prescription of Targin and Lyrica;
(e)    an entry made by Dr Verrall on 27 August 2020 of “chronic back pain” and the prescription of Targin, and
(f)    an entry made by Dr Devlin on 1 September 2020 of “Chronic pain – exacerbation post bite” and the prescription of Targin.
There are also multiple attendances by the applicant in the latter part of 2019 and early part of 2020 for the prescribing of Targin due to chronic pain, although the sites of pain are not identified.
The entry made by Dr Mullany on 28 September 2020 at the applicant’s first attendance at Mollymook Medical Centre following her work injury includes the following:
“Worsening of sciatic back pain L5/S1
Associated significant disability and interruption of ADLs/occupation
…..
For repeat imaging MRI scan and neuroSx review
Red flags discussed to prompt immediate presentation to ED review.”
There is also a record of prescriptions for Targin, Lyrica and Endone.
The next entry in the clinical notes is from Dr Devlin on 8 October 2020, which includes the following:
“LBP > leg pain
Lifting injury @ work
Background LBP
This “pain is different”
Mood deterioration.”
There continues to be a record of multiple attendances to the Mollymook Medical Centre by the applicant following the work injury on 21 September 2020 for treatment of her lower back condition, which will usually include the prescribing of Targin or Oxycontin, some of which are:
(a)    an entry made by Dr Mullany on 25 November 2020 includes “Flare of acute on chronic back pain”, “Describes worsening mid and lower back pain” and “Severity 9/10”. There is a record of Oxycodone being prescribed;
(b)    an entry made by Dr Devlin on 19 May 2021 of “LBP – unchanged”, and the prescription of Oxycontin;
(c)    an entry made by Dr Verrall on 23 November 2021 of “complex chronic back pain” and a long discussion with respect to the applicant weaning of opiates, and
(d)    an entry made by Dr Crowe on 28 February 2023 of “LBP worsening” and the prescribing of Oxycontin.
Dr Mobbs, neurosurgeon, provides a report dated 5 November 2020 and records that the applicant had a seven-week history of acute exacerbation of long standing lower back pain.
Dr Mobbs had previously seen the applicant in 2016. Dr Mobbs records in a report dated
25 August 2016 that the applicant has suffered with intermittent back pain for many years and makes a provisional diagnosis of discogenic back pain especially at the L5/S1 level.
Dr Mobbs provides a report dated 3 December 2020 after the applicant undergoes a discogram. Dr Mobbs writes:
“The L3/4 and L4/5 injections were a bit uncomfortable but nowhere near as bad as L5/S1 where she had fairly stellar back pain that was her usual pattern of pain. I am pretty confident that the primary generator here is L5/S1.”
Dr Mobbs recommends a disc injection to be performed by Dr Yu, and then writes:
“If it is of minimal benefit, then I would be happy to catch up with Jodie again to organise and L5/S1 ALIF. The question is will we do a disc replacement at the level above and I am uncertain if this would be the best way forward or simply to target the primary pain generator.”
Dr Mobbs provides a report dated 24 March 2022 which includes the following:
“She has been in and out of pain management for years now. She has had pretty much tried everything done. She has had plenty of injections, RFs, PRP injections, and the list goes on and on. She has tried all sorts of different medications and alas to no avail.”
Dr Mobbs provides a report dated 7 April 2022 wherein he writes that the applicant “is not getting anywhere” with pain management interventions, including from Dr Yu. He writes that a reconstructive approach at L5/S1 is a fair and reasonable way forward given the longevity of her pain. He writes that he will seek approval from the insurer for a L5/S1 ALIF.
Dr Yu from Pain Rehab Clinic also saw the applicant in 2016. Dr Yu records in a report dated 17 October 2016 that the applicant has had ongoing lower back pain for the past 15 years. He strongly recommends a multidisciplinary approach in managing the applicant’s complex pain condition with anti-neuropathic medication, clinical psychology and physiotherapy treatment.
Dr Yu provides a report dated 6 August 2021 wherein he writes that the applicant reported minimal to no pain relief from three intradiscal injections which were performed between April and June 2021. Dr Yu writes that the applicant has also seen a psychiatrist and pain specialist for medication management. Dr Yu again recommends a multidisciplinary pain management approach for the applicant’s pain condition.
Dr Huang, neurosurgeon, provides a report dated 23 October 2024. He states that he had a consultation with the applicant on 24 April 2024. Dr Huang records that the applicant described lumbar back pain and pain radiating down both lower limbs when she was required to lift a heavy metal drain at work on 21 September 2020.
Dr Huang writes that the applicant has a history of previous lumbar back pain which also occurred at work around nine years ago, but that she recovered with conservative management. Dr Huang then writes:
“Jodie did not describe symptoms prior to her injury sustained on 21 September 2020. I note she did have a previous back injury over she had recovered from this and was at full capacity at work. I can only be guided by the truthfulness of patient and it was clear although she previously had a back injury to her injury in 2020, and the symptoms were different as she did not describe the lower limb involvement in that episode.”
Dr Huang opines that the lifting incident on 21 September 2020 is the main contributing factor to her lumbar spine condition.
Dr Huang is then asked if the aggravation of the applicant’s lumbar spine condition on
21 September 2020 is the material contributor to the need for the surgery recommended by Dr Mobbs of a L4/5 total disc replacement and a L5/S1 fusion. Dr Huang opines:
“Yes. The injury on 21 September 2020 is the main factor surgery has been recommended. It has now been 4 years since the injury and with her progression, it is unlikely she will never been pain-free, however without adequate intervention her symptoms will only worsen. Surgical intervention is most reasonable in this case, but the role will be to try to improve her symptoms and to prevent further worsening of her symptoms. The longer the symptoms are left untreated the more time it takes to recover and the more difficult it is to reverse. I note her psychological state is also severely affected by her symptoms.”
Dr Davies, neurosurgeon, has provided reports at the request of the applicant’s lawyers dated 16 May 2023 and 29 November 2024.
In his report dated 16 May 2023, Dr Davies records that the applicant felt the sudden onset of low back pain when she was lifting a heavy grate on 21 September 2020. He records that the applicant told him that she developed back pain about 10 years ago, but she did not recall having leg pain, and that she eventually returned to her pre-injury duties at Liquorland.
Dr Davies opines that the applicant aggravated pre-existing changes in her lumbar spine, particularly at the L5/S1 level, from the incident on 21 September 2020.
Dr Davies opines that the fusion at L5/S1 recommended by Dr Mobbs is reasonably necessary treatment as a result of the work injury. He notes that the applicant has had an extensive course of conservative therapy over a period of more than two years but continues to have significant pain.
Dr Davies does acknowledge that the applicant has some superimposed psychological issues and recommends that she undertakes multidisciplinary pain management. Dr Davies observes:
“The outcome of her proposed surgery is likely to be better if her psychological state can be improved and her level of function can be improved to some extent in spite of her pain, prior to the procedure. She is in a catch 22 situation. Without improvement in her pain, the psychological state will remain poor. A poor psychological state is likely to have a negative impact on the outcome of the surgery.”
Dr Davies writes in his report dated 29 November 2024 that he has reviewed the file from the applicant’s general practitioner where there are multiple entries relating to low back pain and episodes of acute on chronic low back pain. He writes that it is clear that the applicant had a long history of back pain prior to 21 September 2020, but she was able to work and was independent around the home, and that her condition has been persistently worse since the incident in September 2020. He concludes that the incident on 21 September 2020 is the main contributing factor to the aggravation of the applicant’s lumbar spine condition.
Dr Davies is aware of the surgery proposed by Dr Huang and provides the following opinion:
“I would be very wary of undertaking surgery in this lady at present. She has a high level of psychological distress and a number of non-organic features. She is fear avoidant and hypervigilant. Her lower limb symptoms cannot be explained on the radiological findings. Whilst there are changes in the L5/S1 disc, they would not explain her widespread lower limb symptoms and signs.
I note Dr Huang has recommended anterior lumbar fusion at L5/S1 and insertion of an artificial disc at L4/5. The bone scan shows that there are active degenerative changes in the L4/5 and L5/S1 facet joints. Facet degeneration is a contraindication to inserting artificial discs, due to the risk of causing increased facet related pain. The alternative is to undertake a two level fusion at L4/5 and L5/S1. If there is concern about accelerating changes in the L3/4 disc, a dynamic stabilisation could be undertaken at L3/4.
The outcome of surgery at the present time is likely to be poor. It would be more appropriate for Ms Willing to undertake an intensive multidisciplinary pain management program before considering surgical intervention.”
Dr Casikar, neurosurgeon, has provided a report at the request of the respondent dated
24 May 2022.
Dr Casikar records that the applicant came into his rooms in a wheelchair, and she indicated that she was unable to walk or lie on her back.
Dr Casikar opines that the applicant appears to have developed a soft tissue aggravation following the incident at work on 21 September 2020. He writes that the applicant had a compensable aggravation to a pre-existing degenerative disease, and that under normal circumstances this should have recovered in about six to eight weeks. He opines that the applicant’s symptoms are out of proportion to the kind of injury she has sustained, and she seems to have significant emotional issues.
Dr Casikar writes that he is not sure if a lumbar fusion is going to make any significant difference because it is well known that this surgery in a workers compensation claim, and on a background of emotional problems, has a poor outcome. Dr Casikar recommends further input from a pain specialist, a psychiatrist and non-surgical management of the applicant’s back pain.
Dr Gorman, pain medicine specialist, has provided a report at the request of the respondent dated 2 January 2024.
Dr Gorman records that the applicant has been able to significantly reduce her intake of Oxycontin, but that she has remained symptomatic with inactivity.
Dr Gorman agrees with Dr Casikar that the aggravation of the pre-existing degenerative disease in the lower back has now resolved, and that the deterioration of her condition after the work injury is likely to be an aggravation to the pre-existing disc disease. However, the applicant has now developed an adjustment disorder with anxiety and depression.

A summary of the submissions by the parties to this dispute

Mr Barter on behalf of the applicant submits that although the applicant suffered from low back pain for some years prior to the work injury on 21 September 2020, a review of the clinical notes from Mollymook Medical Centre reveals that there was a significant increase in the level of pain experienced by the applicant after her work injury and that this high level of pain and disability has continued. This supports a conclusion that the applicant has continued to suffer from the effects of the injury of 21 September 2020 and continues to require medical treatment as a result of that injury.

Mr Barter acknowledges that there is a difference in the surgical procedures proposed by
Dr Mobbs and Dr Huang. However, he submits that the primary question for determination is whether spinal surgery is reasonably necessary as a result of the work injury, and both surgeons have recommended surgery. It is not necessary for the Commission to delve into the minutiae of the type of surgery to be undertaken.
Mr Loukas on behalf of the respondent submits that if there is a need for surgery then such surgery is not as a result of the work injury. This is because any aggravation of the applicant’s lumbar spine caused by the work injury has resolved, and her lower back condition is now the natural progression of degeneration in the lumbar spine which will continue to get worse.
Mr Loukas submits that the applicant has not disclosed details of past problems and treatment required for her lower back to Dr Mobbs, Dr Huang and Dr Davies. He submits that if the proper history is not provided to those experts, then their opinions cannot be relied upon.
Mr Loukas submits that there are too many contradictions between the doctors relied upon the applicant to allow the Commission to be satisfied that the surgery proposed by Dr Huang is reasonably necessary. There is the difference in the particular procedures recommended by Dr Mobbs and Dr Huang. Dr Davies initially supports the surgery proposed by Dr Mobbs, but he is now very wary of the surgery proposed by Dr Huang and queries the efficacy of a disc replacement at L4/5.
Mr Loukas also submits that there are psychological issues referred to in the clinical notes from Mollymook Medical Centre and other medical reports which have not been addressed by Dr Huang, and which may affect the outcome of the proposed surgery.

DETERMINATION

Dr Mobbs is in a very good position to assist in the determination of whether the applicant continues to suffer the effects of the work injury or whether her ongoing symptoms are the natural progression of a degenerative condition because he has had the benefit of treating the applicant both before and after the injury sustained on 21 September 2020.
Dr Mobbs examined the applicant in 2016 and recorded that the applicant had suffered with intermittent back pain for many years and made a provisional diagnosis of discogenic back pain especially at the L5/S1 level, which is the same level which he identified as the applicant having “fairly stellar pain” in as at December 2020.
Dr Mobbs does not record the applicant having an injury to the lower back at work when she returns to see him on 5 November 2020, although he does record an “acute exacerbation” of long standing lower back pain and a copy of his report is recorded as being sent to icare. He also refers in his report dated 7 April 2022, wherein he requests approval from icare to perform spinal surgery, to the applicant having “pain since her injury over two years ago”.
There is no report from Dr Mobbs which is in evidence which specifically addresses the cause of the applicant’s ongoing lower back pain and disability.
However, I consider it reasonable to conclude from the material which I have referred to in
Dr Mobbs’ reports that he understands that the applicant did sustain a work injury on
21 September 2020 and that she has had ongoing symptoms as a result of that injury, notwithstanding that he was aware in 2016 of distinct pathology at the L5/S1 level and that the applicant had longstanding lower back pain when she returns to see him in December 2020.
That conclusion is supported by the opinion of Dr Davies. In his first report dated
16 May 2023, Dr Davies does not record the extent of the applicant’s lower back problems that she had prior to the work injury. However, he does have the benefit of perusing the clinical notes from Mollymook Medical Centre for his report dated 29 November 2024 and concludes that, notwithstanding the applicant having a long history of back pain, the incident on 21 September 2020 is the main contributing factor to the aggravation of her lumbar spine condition. This is based on the applicant being able to work and be independent around her home prior to 21 September 2020, despite requiring treatment for lower back pain.
I am mindful that the applicant has been less than forthright in her own evidence regarding problems that she was having with her lower back prior to 21 September 2020. The applicant was being prescribed opioid medication for her lower back pain less than a month before the work injury. However, Dr Davies is made aware of this for his second report dated
29 November 2024 and provides an explanation as to why he considers that the work injury is now the main contributing factor to the applicant’s ongoing symptoms.
There is other evidence to support the conclusion that the work injury has led to the ongoing aggravation of the applicant’s lower back condition. There is the note made by Dr Devlin, who appears to be the applicant’s usual general practitioner at Mollymook Medical Centre, on 8 October 2020 that the “pain is different”. I agree with the submission made by Mr Barter that although there were many attendances by the applicant at Mollymook Medical Centre for lower back pain prior to 21 September 2020, the clinical notes reveal an elevated level of pain being experienced by the applicant after the work injury and even greater prescription of medication in an effort to relieve those symptoms.
Furthermore, the applicant had worked for at least 11 years with the respondent prior to her work injury in a job which she describes as requiring some physical exertion in the 24 hours of work she undertook for the respondent. There are no personal leave records in evidence from the respondent which record the applicant taking time off work for a lower back condition prior to the work injury, and no records of any modification in duties during those years of employment. That supports the conclusion reached by Dr Davies regarding the cause of the applicant’s ongoing aggravation of her lower back condition.
I am satisfied from the evidence provided by Dr Mobbs, the opinion provided by Dr Davies, and the other factors which I have just outlined, that the applicant continues to suffer the effects of the injury sustained on 21 September 2020, and the applicant is not merely experiencing the natural progression of a degenerative condition.
I am not assisted by the opinion of Dr Casikar. Dr Casikar refers to the applicant having a soft tissue aggravation. However, the weight of medical evidence, especially from two treating neurosurgeons, supports the applicant having significant pathology at the L5/S1 level.
Dr Casikar also proceeds on the hypothesis that the applicant should have recovered in about six to eight weeks following the work injury, rather than undertaking an interrogation as to why the applicant has continued to experience high levels of pain and needed strong analgesic medication.
I also find that Dr Gorman is of no assistance on the issue as to whether the applicant continues to suffer the effects of the work injury because he merely accepts the opinion of
Dr Casikar.
While I accept that the applicant continues to suffer the effects of the work injury sustained on 21 September 2020, there remains the question of whether the surgery proposed by
Dr Huang is reasonably necessary as a result of that injury.
In my view, the fundamental principle to be considered as to whether a certain form of medical treatment is reasonably necessary is that set out by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 (Rose):
“Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.”
Dr Mobbs does not specifically state in any of his reports that he expects there will be an alleviation of the applicant’s pain, but it is reasonable to infer this from his recommendation for surgery. Dr Huang concedes that the applicant is unlikely to be pain-free but surgical intervention will be an attempt to improve her symptoms and prevent any worsening of her condition.
However, those two specialists have recommended different procedures. Dr Mobbs recommends only a fusion at the L5/S1 level. Dr Huang proposes a L4/5 total disc replacement in addition to the L5/S1 fusion.
Mr Barter submits that the primary question for determination is whether spinal surgery is reasonably necessary as a result of the work injury, and it is not necessary for the Commission to delve into the minutiae of the type of surgery to be undertaken.
Support for this submission might be found in Widdup v Hamilton [2006] NSWWCCPD 258 (Widdup) wherein President Sheahan referred to Water Taxis Combined Pty Ltd and Harbour Taxi Boats Pty Ltd v Wells [2004] NSWWCCPD 30 (Water Taxis) and Lilly v Tomago Aluminium Company Pty Limited [2004] NSWWCCPD 62 (Lilly) and said at [48]:
“In both Water Taxis and Lilly it was held that, where a dispute is properly before the Commission, it has the power to make factual findings that will be relevant to workers’ entitlements for future section 60 expenses.”
However, it was the principle in Widdup that: “As section 60 is an indemnity provision, no ‘amount’ can be ordered to be paid under that section until the ‘cost’ has been incurred” (at [46]), which was the catalyst for the introduction of s 60 (5) of the 1987 Act, which now allows for an order to be made for an employer to pay the cost of proposed future medical treatment. Section 60 (5) of the 1987 Act provides:
“The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service.”
The applicant identifies the matter in dispute in the ARD to be future treatment for “L4/5 TDR and L5/S1 ACDF as recommended by Dr Christopher Huang, together with additional costs including private hospital fees, anaesthetist fees, surgical assistant fees and any other associated costs for that surgery.”
Tray Fit Pty Ltd v Cairney [2015] NSWWCCPD 2 (Cairney) is a decision of AP Roche which followed the introduction of s 60 (5) of the 1987 Act and which contains helpful similarities to this dispute. The worker in Cairney was offered both a two level fusion and three level fusion of the lumbar spine by two neurosurgeons, however he only sought an order pursuant to s 60 (5) for the three level fusion. Arbitrator Dalley was unable to conclude that the three level fusion was reasonably necessary, but he concluded that the two level fusion was reasonably necessary and made an order for the payment of that surgery by the employer (at [28]).
The employer on appeal contended that no findings or orders in respect of the two level fusion should have been made because that claim was not before the Commission. AP Roche did note that the submissions made by the worker on appeal contained a logical inference that he wished to proceed with the two level fusion (at [45]).
AP Roche said at [47-48]:
“While it is regrettable that the Application was not formally amended to make it clear that the two level fusion was claimed in the alternative, that has caused no prejudice or disadvantage to the appellant or Allianz. Allianz was, as I have explained, well aware that Mr Cairney had been given different advice as to the appropriate treatment for his injury and it was, at all relevant times, in possession of Dr Bentivoglio’s opinion, which it considered and rejected. Special procedures apart, cases are determined on the evidence, not the pleadings (Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 per Dawson J at 297).
The Commission should consider and determine a dispute that is properly before it. To suggest that the only dispute in the present matter is whether Mr Cairney should have a three level fusion, and nothing else, is unrealistic and artificial. It ignores the history of the matter, and the substantial merits of the claim. It takes a technical and unreasonable approach to the matter that is inconsistent with binding authority and the clear objectives of the legislation.”
The difference between Cairney and this dispute is that in Cairney the Acting President accepted that the worker would be prepared to undertake a two level fusion as an alternative to the three level fusion, whereas in this dispute the applicant only seeks an order for the payment of one particular form of surgery, namely the L4/5 total disc replacement and L5/S1 anterior lumbar interbody fusion which has been proposed by Dr Huang. The applicant states in her statement dated 11 February 2025: “I believe the surgery advised by Dr Huang is the best approach” and “I wish to proceed with the surgery recommended by Dr Huang.”
I accept from a review of the evidence that a L5/S1 anterior lumbar interbody fusion is reasonably necessary as a result of the applicant’s injury. That procedure is supported by
Dr Mobbs, whom I have already observed has had a long association with the applicant and is in an ideal position to opine as to the best treatment for her.
In my view, that procedure meets the criteria set out in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD (Murphy) by DP Roche at [57-58]:
“…The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
I have already found that the applicant continues to suffer the effects of the injury sustained on 21 September 2020. There is, applying the commonsense test of causation in Kooragang Cement Pty Ltd v Bates, an unbroken chain of events from the incident on
21 September 2020, which I accept caused a significant onset of pain in the applicant’s lower back and which has not abated, to the surgery which is now recommended by Dr Mobbs.
I appreciate that Dr Davies initially supported the surgery proposed by Dr Mobbs and that he currently does not support any surgery at all. Although he is not the applicant’s treating specialist, he has had the benefit of seeing the applicant on two occasions and has seen the applicant more recently than Dr Mobbs.
My preference remains with the opinion of Dr Mobbs because of his long association with the applicant and the responsibility he has in his role as a treating neurosurgeon. It would also be expected that issues of psychological distress and hypervigilance referred to by Dr Davies would be addressed by Dr Mobbs.
However, I am not satisfied that a L4/5 total disc replacement in addition to a L5/S1 fusion as proposed by Dr Huang is reasonably necessary after “exercising prudence, sound judgment and good sense” as counselled by Burke CCJ in Rose. There are several reasons for this.
Firstly, there is no explanation given by Dr Huang for this additional procedure. There may be a report or reports from Dr Huang to Mollymook Medical Centre which might be assist in this regard, but the only report from Dr Huang which is in evidence is the report dated
23 October 2024, wherein he answers a series of questions put to him.
Secondly, Dr Mobbs is at best uncertain as to whether there should be a disc replacement above the L5/S1 level. Dr Mobbs writes in his report dated 3 December 2020 that he is uncertain as to whether he should do a disc replacement at the level above L5/S1, but he then makes no mention of that additional procedure when he seeks approval for the cost of the L5/S1 fusion in April 2022. It is reasonable to conclude that Dr Mobbs no longer considers a L4/5 disc replacement to be necessary.
Thirdly, Dr Davies provides cogent reasons as to why the insertion of an artificial disc at L4/5 should not be pursued, namely that facet degeneration is a contraindication to inserting artificial discs and a bone scan shows that there are active degenerative changes in the L4/5 and L5/S1 facet joints. Dr Huang does not provide any response to this important factor raised by a fellow neurosurgeon.
Fourthly, Dr Huang answers a question in his report dated 23 October 2024 on the assumption that Dr Mobbs has recommended a L4/5 total disc replacement and L5/S1 anterior lumbar interbody fusion, when that is no longer the recommendation made by
Dr Mobbs. It might be that this question is simply, but it does add to the considerable uncertainty which I have identified regarding the L4/5 total disc replacement.
I therefore conclude that on the evidence made available in this dispute that the L4/5 total disc replacement proposed by Dr Huang is not appropriate.
Mr Loukas made submissions on the five criteria to be considered as to whether treatment is reasonably necessary, which appears in Rose and later in Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) at [88]:
“(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.”
There is a good argument for the applicant to undergo alternative treatment by way of an intensive multidisciplinary pain management program. This is recommended by Dr Davies. It is also recommended by Dr Yu, who also saw the applicant in 2016 and made the same recommendation at that time. It gives the applicant one more chance with conservative treatment before the die is cast by undergoing spinal surgery.
However, it should not be mandatory for an injured worker to attempt every form of appropriate conservative treatment before surgery is performed. It is apparent from his report dated 24 March 2024 that Dr Mobbs is satisfied that the applicant has undertaken various forms of conservative treatment, and it is now appropriate to perform a fusion at the L5/S1 level. While an intensive multidisciplinary pain management program might be beneficial, the surgery proposed by Dr Mobbs can also be regarded, for the reasons I already given, as being reasonably necessary.

CONCLUSION

I have concluded from a review of the available evidence and with the assistance of the approach taken in Cairney, that the extent of the determination I can make in this dispute is to find that surgery by way of a L5/S1 anterior lumbar interbody fusion is reasonably necessary as a result of the injury sustained by the applicant on 21 September 2020, but to otherwise make no orders in response to the claim made by the applicant in the ARD.

[2025] NSWPIC 188

6 May 2025