Wilton v Stackers Trolley Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Wilton v Stackers Trolley Services Pty Ltd [2021] NSWPIC 199
APPLICANT:	Andrew Wilton
RESPONDENT:	Stackers Trolley Services Pty Ltd
MEMBER:	Catherine McDonald
DATE OF DECISION:	22 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Aggravation of underlying developmental condition; whether surgery was reasonably necessary medical treatment in light of significant mental health and other psycho-social issues; Rose v Health Commission (NSW) and Diab v NRMA Ltd considered and applied; Held– award for the applicant under s 60.
DETERMINATIONS MADE:	1. The respondent is to pay the applicant’s s 60 expenses of and incidental to the surgery proposed by Dr B Sadasivan being L5/S1 decompression discectomy and instrumental interbody fusion.

STATEMENT OF REASONS

BACKGROUND

Andrew Wilton was employed by Stackers Trolley Services Pty Ltd (Stackers) when he suffered an injury to his back on 16 December 2015. His job was to collect shopping trolleys from one level of the carpark at Dapto Mall and to return them to the Coles supermarket. As Mr Wilton was pushing a group of trolleys, he was struck in the back by a car, pushing him forward so that the trolleys collided with a concrete column and he was pushed against the trolleys.
Mr Wilton’s claim was accepted and he was paid compensation for about 181 weeks until November 2020.
In 2017 A/Prof M Jaeger recommended surgery to Mr Wilton’s back but Stackers’ insurer declined Mr Wilton’s request that he undergo surgery. In 2020 Dr B Sadasivan also recommended surgery but the request has again been declined.
The only issue to be determined in these proceedings is whether the proposed surgery is reasonably necessary medical treatment as a result of the injury in 2015.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference and arbitration hearing by telephone on 24 May 2021. Mr J Wilson of counsel appeared for Mr Wilton and Ms Goodman of counsel appeared for Stackers. A claim for weekly compensation was withdrawn.
Mr Wilson objected to the report of Dr M Lim dated 7 June 2019 which appeared in the Reply. After discussion, the report was not pressed.
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 an acceptable to both 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, and
(b) Reply.

There was no oral evidence.
Mr Wilton described the injury in his statement and the long history of treatment he underwent. He was referred to A/Prof Jaeger in 2017.
On 6 March 2017, A/Prof Jaeger noted that Mr Wilton suffered pain in the left L5 nerve distribution. He noted that an MRI scan dated 30 January 2017 showed 1 cm isthmic spondylolisthesis with associated severe foraminal narrowing at L5/S1. A/Prof Jaeger recommended a CT guided left L5 peri-radicular injection which Mr Wilton underwent on 28 March 2017.
On 21 April 2017 A/Prof Jaeger noted that the injection caused an aggravation of Mr Wilton’s pain. A/Prof Jaeger told Mr Wilton that, if he was able to control his pain with medication, that was the approach to take. Otherwise, surgery could be considered. He also recommended physiotherapy.
Mr Wilton’s general practitioner referred him to Dr J Brennan, neurosurgeon, for a second opinion. Dr Brennan reported on 17 May 2017. He noted that Mr Wilton had back pain and non-specific pain in the legs. Dr Brennan said that there were no neurological findings and that he observed some “aberrant pain behaviour.” He reviewed the radiological studies, including an x-ray in 2012 pre-dating the injury, and said that there did not appear to be any overt anatomical progression from 2012 to 2017, though he noted that the 2012 scans were only x-rays. Dr Brennan said that the findings all looked congenital and that the car accident did not cause them though must have aggravated the pain generator. Dr Brennan did not recommend surgery because it would be challenging to predict a favourable response. He recommended weight reduction and other strategies to prevent progression of the spondylolisthesis so that it truly traps the nerve roots necessitating surgery.
A/Prof Jaeger wrote to Stackers’ insurer on 30 May 2017 in response to questions about Dr Brennan’s report. A/Prof Jaeger said that Dr Brennan’s findings correlated with his own though was not convinced that Mr Wilton showed significant pain behaviour at his own examinations and did consider that the pain was consistent with L5 radiculopathy. He agreed that the injury had aggravated previously asymptomatic L5/S1 isthmic spondylolisthesis. He agreed that Mr Wilton’s smoking, weight and low-socio economic status were unfavourable prognostic factors for surgery but considered that the treatment for his condition was generally surgical if a patient was unable to achieve pain control. A/Prof Jaeger also said he considered that Mr Wilton suffered severed left L5/S1 foraminal stenosis.
A/Prof Jaeger prepared a report for Mr Wilton’s solicitors on 4 October 2017 in which he repeated those views. He said that after more than 18 months of conservative treatment, it was reasonable to assume that Mr Wilton would not benefit from further nonsurgical management.
Dr R Pillemer also prepared a medico-legal report dated 5 December 2017. Mr Wilson said that it was relied on only for the fact that Dr Pillemer supported surgery as at that date.
A/Prof Jaeger saw Mr Wilton again and reported to his general practitioner on 20 August 2018. Mr Wilton told A/Prof Jaeger that his pain had deteriorated and had a significant impact on his quality of life. He recommended L5/S1 fusion, intended to achieve adequate decompression of the left L5/S1 neural foramen.
A/Prof Jaeger repeated that opinion in a report to Mr Wilton’s solicitor dated 26 September 2018.
In 2018 Mr Wilton moved from Nowra to Cootamundra. His general practitioner in Cootamundra was Dr Y K Lee who reported to Mr Wilton’s solicitor in response to a request dated 18 February 2019. Dr Lee saw Mr Wilton on 25 October 2018 when Mr Wilton asked for a certificate of capacity stating he was fit for pre-injury duties so that he could work as a cherry picker. Dr Lee was aware that A/Prof Jaeger had recommended surgery. Dr Lee provided that certificate because Mr Wilton “reported pain free and examined normally.” Dr Lee said that Mr Wilton presented on 5 December 2019 but that date appears to be incorrect. Dr Lee said that Mr Wilton presented with ongoing pain as a result of two days’ cherry picking. He recommended simple analgesia and physiotherapy. He recommended a specialist opinion with respect to the need for surgery.
Dr J G Bodel examined Mr Wilton at the request of his solicitors on 10 July 2019. Mr Wilton had moved to Queensland by the time of that appointment. Dr Bodel said that the most recent CT scan dated 12 June 2019 suggested further collapse of the L5/S1 disc. He said that Mr Wilton suffered a disc injury at the lumbo-sacral junction which was vulnerable to injury. He found signs of radiculopathy in the left leg and said that surgery was reasonably necessary for the management of the injury. He said that Mr Wilton’s other health issues needed to be evaluated before proceeding. The issues noted by Dr Bodel were asthma and schizophrenia.
Mr Wilton saw Dr Sadasivan for the first time in early 2020. In his report dated 3 February 2020, Dr Sadasivan said that Mr Wilton had not seen a psychiatrist for significant mental health issues since moving to Queensland but was due to see one. Dr Sadasivan said that structural changes between L5 and S1 explained symptoms to an extent but psycho social issues were “perpetuating at amplifying his pain symptoms.” He said
“Surgery is an option for him but I wouldn't suggest that until his psycho social Issues are addressed appropriately and ruling out the possibility of secondary gain in his case.”
Dr Sadasivan ordered a fresh MRI scan and copied the letter to Mr Wilton’s psychiatrist.
The MRI scan dated 21 February 2020 was reported as showing:
“Chronic L5 pars defects and 1 cm anterolisthesis, Severe Impingement upon the foraminal L5 nerves bilaterally. Mild disc and facet osteoarthritis at the L3/4 and L4/5 levels also noted.”
Dr Sadasivan wrote to Mr Wilton’s general practitioner on 18 April 2020. He said that Mr Wilton had seen a psychiatrist who had changed his medication and he felt better. Dr Sadasivan said:

“He had MRI scan, bone scan and lumbosacral spine x-ray. The bone scan shows disco-vertebral arthritis between L5 and S1 and MRI is showing L 5 Pars defect with anterolisthesis of 1 cm with bilateral LS neuronal compression In the fora men. X-rays also confirm these findings but with no dynamic instability. Andrew seems keen on going ahead with the surgical management. Before making a decision for or against surgery I thought of having an in depth discussion with him and this is better face to face. Therefore, I have advised him to come for a review once the Corona Pandemic is over for having another discussion In making the decision regarding surgery.”

On 8 June 2020 Dr Sadasivan noted that Mr Wilton’s psychological issues were better controlled than before. He said:

“As his symptoms have continued to be in a disabling level in spite of prolonged conservative management, I feel a surgical management option is reasonable for him. I suggested an LS /51 decompression discectomy correction of listhesis and instrumented inter-body fusion. As this procedure is likely to give him around 60% chance of a meaningful reduction in pain symptoms.”

Dr Bodel undertook another consultation by video on 24 August 2020. That method was adopted because of the pandemic. He said:
“I am still of the view that there are signs of possible nerve root involvement and that surgery is something to be considered but this is not a simple task in this circumstance because of this gentleman's current comorbidities including his psychiatric illness.
On balance therefore, the surgery as proposed by Dr Sadasivan, is reasonably necessary for the management of the underlying condition and clinically it appears that the episode of injury that occurred nearly five years ago in December 2015 is the main contributing factor by way of aggravation, acceleration, exacerbation and deterioration of this disease process. A stable spine at the lumbosacral junction should improve function although it will not cure it completely. It may allow him to return to part time light duty work of a modified type if his general medical health allows him to do so.”
Dr Sadasivan prepared another report for Mr Wilton’s solicitors on 22 February 2021. He said that surgery was suggested after “a lot of discussion and consideration of varying factors.” Dr Sadasivan said that the structural change in Mr Wilton’s spine was pre-existing but his symptoms were precipitated by the injury. He said:

“He has significant psychosocial Issues that is definitely perpetrating and amplifying his pain issues. That will certainly be a factor likely to affect the outcome of surgery negatively.
…
He has a structural problem that explains his symptoms to a certain extent. Ln spite of prolonged conservative management including psychiatric Input, he continues to be in disabling, therefore I think surgical management is a reasonable option for him.
…
In him, I am expecting around 60% chance of meaningful reduction In his pain symptoms with surgery. In view of psychosocial Issues, a slower recovery is expected. With the involvement of physio and rehab, I expect him to return to work in a meaningful way, probably in 6-12 months’ time after the surgery.”

Stackers’ medical evidence

Stackers relied on evidence about Mr Wilton’s psychological issues which pre-dated the injury.
Dr J Heiner, psychiatrist, had treated Mr Wilton for some years and noted that his condition was gradually improving. Mr Wilton’s medication was changed. However, on 24 November 2014, Dr Heiner reported that Mr Wilton had recently discharged himself from inpatient treatment and was seeking to be readmitted.
On 15 January 2016, Mr Wilton was referred back to Dr Heiner and the referral noted that he had back pain which had affected his mental health since the injury. The past history recorded included chronic back pain.
Stackers’ insurer obtained a report from Dr T Berry, psychiatrist, on 4 February 2016. Dr Berry noted Mr Wilton’s previous diagnosis of schizophrenia and depression and that he had two incidents of increased suicidal thoughts since the injury. Dr Berry recorded that Mr Wilton was not highly motivated to return to work and “reported to me that he would be happy to receive a pay out instead.” Dr Berry set out Mr Wilton’s past psychiatric and personal history which is traumatic and does not need to be repeated in this decision.
Mr Wilton disputed that his back injury was a recurrence of a previous injury, stating that he had previously only experienced upper back pain.
Dr Berry considered that Mr Wilton had not suffered a psychological injury as a result of the “recent car accident.”
Dr S Rimmer, orthopaedic surgeon, prepared a report for Stackers’ insurer dated 17 July 2018. Dr Rimmer considered that Mr Wilton’s condition was a resolved aggravation of L5-S1 spondylolisthesis because of some surveillance evidence five months after the injury which showed no physical incapacity and on the basis of his examination.
Dr Rimmer addressed the question of surgery in his second report dated 4 October 2018. He said he agreed with Dr Brennan and expected that the surgery would have a high failure rate, given the history and his examination. Dr Rimmer’s reports are brief and the statement is not explained.
The surveillance film on which Dr Rimmer relied did not form part of the evidence though two reports describing it are in the Reply.
Dr ALG Smith reported on 12 August 2020. He noted that Mr Wilton was struck by a slow moving car and that he was able to walk afterward and did not fall to the ground. He and said:
“From an orthopaedic point of view, this man has a familial inherited spondylolisthesis at L5-S1 with pars defects in the degenerative disc at that level, which would predate the accident of 16 December 2015 by at least five years, regarding the degree of disc degeneration. All the discs above L5 are all narrowed and dehydrated with intranuclear clefts and undulating endplates. He has facet Joint arthritis at every level. There Is a slight disc bulge at L4-5. There Is no change between the MRI of 6 June 2016 and the MRI of 30 August 2018. Neither investigation demonstrates any post-traumatic lesion.
In my opinion, considering the radiology in addition to the obvious pathology at L5-S1, he has thoracolumbar Scheuermann's disease and the degenerative process is superimposed on that. I am unaware of exactly what happened In the car park of the Dapto Mall on 15 December 2016. In the event he had any sort of contact with the car, he could have ·easily aggravated his pre-existing previously asymptomatic abnormal lumbosacral spine, at L5-S1 in particular.
That aggravation would have resolve [sic] by Itself and left no disability after a day or two, week or two, or three months at the most.
It was always going to occur that he was going to have problems with his low back
from time to time, with the pathology present In his low back and probably extending
into the thoracic spine.”
Dr Smith considered that Mr Wilton required no treatment as a result of the injury. He noted that spinal fusions have a high failure rate.
Stackers also relied on a report by Dr G Vickery dated 22 July 2019 prepared for a motor accident claim. He noted that Mr Wilton was sensitive to rejection. Mr Wilton said that he had improved since moving to Queensland. Dr Vickery considered that any psychological injuries suffered in the motor accident had stabilised.

Dispute notices

Stackers’ insurer issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 on 8 July 2020. The insurer noted the original opinions of A/Prof Jaeger and Dr Brennan and that A/Prof Jaeger recommended surgery in 2018. The insurer relied on Dr Rimmer’s report and his opinion that the work aggravation of the condition had resolved. It issued a dispute notice on 26 October 2018. The insurer declined the request from Dr Sadasivan because the proposed surgery was similar to that proposed by A/Prof Jaeger which it had already declined.
The insurer issued a further s 78 notice on 18 September 2020 with respect to weekly compensation indicating that payments would cease from 11 November 2020. It also declined liability for medical treatment on the basis that any temporary aggravation to pre-existing “spondylosis” had completely resolved. It relied on the reports off Dr Rimmer, Dr Lim, Dr Vickery and Dr Smith.
A list of payments shows that Mr Wilton was paid compensation from December 2015 until November 2020.

SUBMISSIONS

The submissions made by counsel were recorded and what appears below is a summary.
Mr Wilson took me through the medical evidence summarised above. He said that I would accept the opinion of A/Prof Jaeger who had had the opportunity of seeing Mr Wilton on a number of occasions and who was aware of the psycho-social issues. A/Prof Jaeger recommended surgery if conservative management failed and when he saw Mr Wilton in 2018, it was clear that treatment had failed.
Dr Sadasivan considered at his first consultation that surgery was an option but psycho-social issues needed to be addressed. After an MRI scan, Dr Sadasivan had a telephone consultation and noted that Mr Wilton was keen for surgery but said that an in-depth and face to face consultation was necessary. Mr Wilson said that Dr Saadian’s report dated 8 June 2020 showed that the issue had been thoroughly discussed. Dr Sadasivan was the second neurosurgeon to have seen and examined Mr Wilton thoroughly over a period of time.
Mr Wilson said that Dr Sadasivan’s 2021 report showed that the significant psycho-social issues had been considered and a slower recovery was expected. However balancing those criteria with the benefits leads to the conclusion that the surgery is reasonably necessary as a result of the injury.
Mr Wilson referred me to Rose v Health Commission (NSW)[1] (Rose) where Burke CCJ said that the purpose of reasonably necessary medical treatment was to have a positive impact and to restore to health.
[1] [1986] NSWCC 2; (1986) 2 NSWCCR 32.
Mr Wilson also said that the treatment was reasonably necessary in the sense discussed in Diab v NRMA Ltd [2] in that those proposing the surgery had considered the appropriateness, the availability of alternatives and its potential effectiveness.
[2] [2014] NSWWCCPD 72.
Mr Wilson said that I would not give Dr Rimmer’s opinion any weight because he relied on surveillance evidence for which the film has not been provided. Also, unlike A/Prof Jaeger and Dr Sadasivan, he had not seen Mr Wilton over an extended period. Similarly, he said I would not accept Dr Smith.
The psychiatric evidence, Mr Wilson said, supported the proposition that Mr Wilton’s condition was stable and that I would not find that the surgery was not reasonably necessary on psychiatric grounds.
Ms Goodman said that Dr Sadasivan was very concerned about the psycho-social issues and his report dated 3 February 2020 raised Mr Wilton’s mental health issues squarely. By April 2020, Mr Wilton had seen a psychiatrist and felt better after a change in medication. Ms Goodman said that Mr Wilton’s own statement was “not good enough” given that he suffered schizophrenia and other severe issues and that a report from his general practitioner or psychiatrist should have been provided.

Ms Goodman noted that Dr Sadasivan’s reports did not record signs observed on examination but only Mr Wilton’s description of his symptoms. She submitted that Dr Smith raised issues which had not been otherwise addressed. He highlighted that the proposed surgery was for a pre-existing condition, which none of Mr Wilton’s doctors sought to refute.
Ms Goodman said that I would accept Dr Brennan’s opinion who confirms there are no neurological findings and that Mr Wilton was symptomatic from the pre-existing condition. She said it was relevant that there were no clinical notes and no reports from Mr Wilton’s general practitioners either on the south coast or in Queensland.
There is a report from Dr Lee in Cootamundra who said that Mr Wilton asked for a pre-injury duties certificate which was provided and the next visit was a year later. His opinion was consistent with that of Dr Rimmer and Dr Smith that Mr Wilton had recovered from the injury.
Ms Goodman said that I would accept Dr Smith over Dr Sadasivan who did not identify radiculopathy and who had not considered Mr Wilton’s weight. She also noted that Mr Wilton had returned to work for a period after the injury which was not considered by many of the reports.
In reply, Mr Wilson said that the proper chronology was that Mr Wilton saw Dr Jaeger in August 2018 when he was living in Nowra. He then moved to Cootamundra and saw Dr Lee. He remained under the care of A/Prof Jaeger. The reference to October 2019 in Dr Lee’s report must be an error because the report was in response to a request in July 2019. Mr Wilton moved to Queensland in late 2018. In February 2020 he saw Dr Sadasivan then spoke to him by phone in April. He saw Mr Wilton again in June and found him clinically unchanged. In a report to a general practitioner, one would not expect more detail about examination findings. In February 2021, Dr Sadasivan considered all of the relevant factors and recommended surgery. Mr Wilson said that the purpose of the surgery was the alleviation of pain which is disabling.

REASONS AND FINDINGS

My task is to determine if the surgery proposed by Dr Sadasivan is reasonably necessary medical treatment within the meaning of s 60 of the Workers Compensation Act 1987 (the 1987 Act).
The passage in Rose to which Mr Wilson referred reads:

“Treatment is necessarily purposive. 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.”

In Diab, Roche DP said:
“… ‘reasonably necessary’ is a composite phrase in which necessity is qualified so that it must be a reasonable necessity (Giles JA (Campbell JA agreeing) in ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48] (O’Shea)). The Court, Bathurst CJ, Beazley and Meagher JJA, followed this approach in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113] (Moorebank).
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 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 (see [76] above), 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.
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.
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’.”
There is no dispute that Mr Wilton suffered an injury. He was paid weekly compensation for an extended period.
I agree that Mr Wilton’s background and other medical conditions require that careful consideration be given to whether surgery should be undertaken. The thrust of Ms Goodman’s submissions were that those other conditions made surgery inappropriate, especially in the absence of reports from Mr Wilton’s general practitioner and current psychiatrist. That is not, however, the basis on which Stackers’ insurer declined the claim.
Mr Wilton has continued to complain of significant pain since the injury. While there is some reference in the medical reports to complaints of pain before the injury, it seems clear that the pain substantially increased.
It is also clear that the injury was an aggravation of an underlying condition. The insurer disputed in its s 78 notices that the aggravation continues.
The most helpful evidence in that regard is the reports of A/Prof Jaeger who saw Mr Wilton in early 2017 and 2018. A/Prof Jaeger discussed surgery at the first appointment but recommended conservative treatment which Mr Wilton preferred. He noted that Mr Wilton had leg pain. His opinion was that L5/S1 isthmic spondylolisthesis had been made symptomatic by the work injury. He was aware of “unfavourable prognostic factors” but said in October 2017 that conservative treatment had failed and that surgery was the last remaining option.
While he did not recommend surgery, Dr Brennan accepted that Mr Wilton had ongoing pain as a result of the injury. He did not consider that there had been a progression in the radiological findings, but he accepted that the incident had aggravated the pain generator.
Dr Bodel said that the underlying condition made Mr Wilton vulnerable to injury. Like A/Prof Jaeger, he accepted that there were signs of radiculopathy in Mr Wilson’s left leg. He agreed that the aggravation continued, that surgery was appropriate and that Mr Wilton’s other health issues needed to be carefully evaluated.
Dr Sadasivan has been alert to Mr Wilton’s psycho-social issues since his first examination in February 2020. He considered it necessary to rule out the possibility of secondary gain. He obtained a history of leg pain as well as back pain and that Mr Wilton was taking multiple analgesics. Dr Sadasivan agreed that psycho-social issues were amplifying pain. He ordered an MRI scan and copied the letter to the psychiatrist that Mr Wilton was due to see to address the other issues. When Mr Wilton told him that he felt better after a change in medication, Dr Sadasivan deferred any decision about surgery until he could see Mr Wilton face to face. That consultation took place in June 2020 and Dr Sadasivan recommended surgery because symptoms were at a disabling level.
In his medico-legal report, Dr Sadasivan said that the structural change was pre-existing but symptoms were precipitated by the work injury. That opinion is consistent with the acceptance of the claim for an extended period. While there is no report from a treating psychiatrist, Dr Sadasivan has considered the intercurrent issues. He anticipated a slower recovery.
Though his reports are not detailed, three of them are reports to Mr Wilton’s general practitioner. They show that careful consideration has been given to the appropriateness of surgery in Mr Wilton’s circumstances.
Dr Lee’s report can be put to one side. He provided a pre-injury duties certificate because Mr Wilton wanted to work, which appeared appropriate based on his first examination. His report shows that the attempt to work was not successful.

Dr Rimmer’s report dated 2018 is not persuasive and his conclusion is based on his examination and surveillance evidence not provided in these proceedings. His report is brief. While it sets out his examination findings, his conclusions are not explained and the statement by Lord President Cooper in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh[3] is apt:
“… the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.”
[3] (1953) SC 34 at 39-40

Mr Wilton was paid compensation for some time after Dr Rimmer’s report.
Dr Smith noted extensive pre-existing changes and accepted that an injury could have aggravated the condition. He considered that aggravation would have been short-lived, without explaining why. He said that any activity would be likely to aggravate the underlying condition. His statement that spinal fusion operations have a high failure rate is also unsupported by detail. His opinion is also not persuasive.
Dr Sadasivan does not suggest that the surgery will restore Mr Wilton to perfect health but he does consider that the treatment will alleviate pain. It may allow Mr Wilton to return to some employment, though treatment can be reasonably necessary even if that is not the outcome. Dr Sadasivan was realistic about the time Mr Wilton may take to recover. Though his reports to the general practitioner are short, they convey that he has given careful consideration to Mr Wilton’s circumstances. His opinion is consistent with that of A/Prof Jaeger three years before and I consider it should be accepted.
I am satisfied that the treatment proposed by Dr Sadasivan being L5/S1 decompression discectomy and instrumental interbody fusion is reasonably necessary medical treatment as a result of the injury on 16 December 2015. I order Stackers to pay the costs of and incidental to that treatment.

[2021] NSWPIC 199

22 June 2021