Zhang v Echelon NCLY Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Zhang v Echelon NCLY Pty Ltd [2022] NSWPIC 240
APPLICANT:	Xiangshun Zhang
RESPONDENT:	Echelon NCLY Pty Ltd
MEMBER:	Brett Batchelor
DATE OF DECISION:	25 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim by the applicant for the cost of cervical spinal surgery; the respondent conceded that the applicant suffered a frank injury to his cervical spine, but that any aggravation or exacerbation of the degenerative condition therein had resolved; the respondent also submitted that the surgery proposed is not reasonably necessary as a result of injury; Held- finding that the aggravation and/or exacerbation of the degenerative condition in the applicant’s spine had not resolved, and that the surgery proposed was reasonably necessary as a result of the frank injury; respondent ordered to pay for the costs of and incidental to surgery pursuant to section 60 of the Workers Compensation Act 1987.
DETERMINATIONS MADE:	1. The applicant suffered aggravation and/or exacerbation of cervical spondylosis on 29 July 2019 arising out of or in the course of his employment with the respondent. 2. The applicant has not recovered from such injury. 3. The surgery proposed by Dr Singh, C5/7 anterior cervical decompression and fusion, is reasonably necessary as a result of injury to the cervical spine on 29 July 2019. 4. The respondent is to pay for the costs of and incidental to such surgery pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Xiangshun Zhang (the applicant/Mr Zhang) claims compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the cost of surgery to his cervical spine as a result of injury on 29 July 2019 arising out of or in the course of employment as a gyprocker for Echelon NCLY Pty Ltd (the respondent). On that day Mr Zhang was working at a construction site in Concord when he lost his balance on the ladder from which he was working and fell approximately 1.8 metres to the ground.
The applicant lost consciousness in the fall, and police and ambulance attended the scene. He was conveyed to Royal North Shore Hospital (RNSH) where he recalls waking up around 10.00pm with headaches, left wrist pain, neck pain and lower back pain. He was discharged from the hospital a week later.
The applicant was seen by Dr Huy Quoc An, general practitioner, on 10 September 2019 who issued a WorkCover certificate of capacity containing a diagnosis of injury of “subarachnoid haemorrhage after fall”. Dr An referred the applicant for an X-ray of the left wrist, cervical spine and lumbar spine which was carried out on 10 September 2019[1].
[1] Application to Resolve a Dispute (ARD) p 67, noting that the page references in this Statement of Reasons are to those in the electronic records of the Personal Injury Commission (the Commission).
On 8 October 2019 the respondent’s insurer, iCare, accepted liability for injury on 29 July 2017 with respect to the diagnosis of concussion, fracture at wrist or hand level and fracture of one rib.[2]
[2] See notice issued by iCare pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 14 September 2020.
The applicant was subsequently treated by Dr Hsu, orthopaedic surgeon, Dr Bazina, neurosurgeon, and Dr Singh, orthopaedic surgeon.
Dr Hsu referred the applicant for an MRI scan of the cervical spine which was carried out on 13 November 2019[3]. This investigation revealed loss of disc height and a broad disc osteophyte, with annular tear, contacting the cord at C5/6. A broad disc osteophyte without cord contact was shown at C6/7, with the conclusion of the radiologist being “Degenerate spine, changes most marked C5/6 and C7.”
[3] ARD p 65.
On 29 May 2020 the applicant was seen by Dr Bazina for constant ongoing headaches. Dr Bazina noted that, apart from the headaches, Mr Zhang was suffering from fatigue, irritability and insomnia which may be related to post-concussion syndrome, or alternatively related to medications, stress and/or cervicogenic pathology and injuries from his neck. She noted that a recent cortisone injection into the cervical spine made all symptoms worse.[4]
[4] ARD p 114.
Dr Hsu reviewed the applicant on 18 June 2020 following an L5/S1 spinal injection. Surgery was discussed.[5]
[5] ARD p 56.
On 24 July 2020 the applicant was independently medically examined by Dr Machart, orthopaedic surgeon, at the request of iCare. Dr Machart produced a report dated 29 July 2020[6] containing a diagnosis of:
(a)    fracture of left triquetrum, now healed and no longer symptomatic;
(b)    cervical spondylosis aggravated by the injury, and
(c)    lumbar spondylosis aggravated by the injury at L4/5 and L5/S1, and a superimposed L4/5 disc protrusion causing left radiculopathy.
[6] ARD p 41.
Dr Machart said that conservative treatment options should be exercised, and if not successful, then surgical intervention could be entertained. That was not absolutely essential, and he noted that the decision was reasonably left between the patient and treating doctors. He also noted that at the present time the applicant did not want surgical intervention, so it could be safely put aside.
Dr An continued to treat the applicant until approximately 23 July 2020, after which time he came under the care of Dr Eric Lim, general practitioner, who first saw Mr Zhang on 24 August 2020. Dr Lim expressed the opinion that Mr Zhang had suffered, inter alia, “a Gyprocker injury with a diagnosis of Head trauma; Cervical spine radiculopathy, C5/6 disc osteophyte with annular tear, C6/7 foraminal stenosis;”[7].
[7] Report dated 25 August 2020, ARD p 60 and Reply p 16.
On 10 November 2020 Dr Singh (same practice as Dr Hsu) reviewed the applicant, noting that he had previously seen Dr Hsu for lower back pain and had been recommended surgery. Dr Singh noted that Mr Zhang had been having neck pain with radiation to the periscapular area and the arms, worse on the right side; MRI scan of the cervical spine did reveal disc bulging worse at C5/6. A trial injection into the cervical spine was mentioned, followed by review thereafter.[8]
[8] ARD p 58.
Dr Singh reviewed the applicant on 8 December 2020 in respect of symptoms in the lumbar spine and cervical spine, noting that the MRI scan (not apparent from the report whether the doctor was referring to the lumbar or the cervical spine) did show pathology. He noted that both he and Dr Hsu recommended surgical treatment for the cervical and lumbar spine, but that Mr Zhang was very apprehensive about surgical treatment. Mr Zhang was advised to return to discuss his surgical option when he was ready to consider surgery.[9]
[9] ARD p 57.
On 17 February 2021 Dr Singh produced an Estimate of Fees for Surgery of the cervical spine, a C5/6 anterior cervical decompression and fusion, including a request for permission for the procedure to be performed.[10]
[10] ARD p 59.
On 24 March 2021 the applicant was independently medically examined by Dr Anil Nair, consultant orthopaedic surgeon, who produced a report dated 7 April 2021.[11] Dr Nair found clinical radiological evidence of both cervical spondylosis and lumbar spondylosis, confirmed on MRI scans from November 2019. In his opinion, these conditions were degenerative in nature, with radiological findings indicating chronicity. He found no evidence of an ongoing workplace injury in either the cervical or lumbar spine.
[11] ARD p 48.
On 8 July 2021 iCare issued to the applicant a notice pursuant to s 78 of the 1998 Act in which it denied liability for the requested C5/6 anterior cervical decompression and fusion surgery and ongoing hydrotherapy treatment.[12]
[12] ARD p 18.
On 15 September 2021 the applicant was independently medically assessed by Dr Peter Khong, neurosurgeon, via videoconference. Dr Khong found that the fall at work suffered by the applicant caused an exacerbation of pre-existing degenerative changes in the cervical spine causing neck and arm pain. He said:
“If Mr Zhang finds his neck and left arm symptoms intolerable, surgery would be reasonably necessary. He would benefit from at least a C5/6 anterior cervical discectomy and fusion, but may also require a fusion at C6/7 due to the bilateral foraminal stenosis.”[13]
[13] ARD p 35.
On 24 February 2022 the applicant underwent a further scan of his cervical and lumbar spine. In respect of the cervical spine, the comment of the radiologist on the scan was as follows:
“Correlation between imaging and the patient’s pre scanning pain diagram is suggestive of bilateral C6 and/or C7 symptoms. In relation to C6 symptoms, there is significant left foraminal stenosis at C5/C6 which could cause some of the left-sided symptoms, but right-sided symptoms are unlikely to be related to C6 based on imaging. With reference to C7 symptoms, there is significant bilateral foraminal stenosis and potential bilateral C7 nerve root irritation.”[14]
[14] Reply p 28.
On 7 March 2022 Dr Singh provided a further Estimate of Fees for Surgery in respect of a proposed C5/7 anterior cervical decompression and fusion.[15]
[15] Reply p 30.
At the conciliation/arbitration hearing referred to hereunder, the ARD was, by consent, amended to include as a claimed medical expense the cost of such surgery in lieu of the C5/6 anterior decompression and fusion surgery referred to therein.

ISSUES REMAINING IN DISPUTE

The parties agree that the following issues remain in dispute:
(a) Has the applicant recovered from aggravation and/or exacerbation of pre-existing degenerative changes in his cervical spine suffered on 29 July 2019?
(b) Is the surgery proposed by Dr Singh, C5/7 anterior cervical decompression and fusion, reasonably necessary as a result of injury on 29 July 2019?

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a conciliation conference/arbitration hearing on 11 May 2022. Dr De Greenlaw of counsel appeared for the applicant briefed by Mr Dinh. The applicant was present with an interpreter. Mr McMahon of counsel appeared for the respondent briefed by Ms Semaan.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 9 May 2022 lodged by the respondent with supplementary report of Dr Nair dated 29 March 2022 attached, exhibit “1” in the respondent’s case, and
(d)    further statement of the applicant dated 6 May 2022, exhibit “A” in the applicant’s case.

Oral evidence

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

SUBMISIONS

The submissions of the parties are recorded, a transcript of which can be obtained on request. I will not repeat the submissions in full. In summary, they are as follows.

Applicant

In opening his submissions the applicant notes that injury to the cervical spine as such is not put in issue by the s 78 notice dated 7 October 2021, based on the report of Dr Nair dated 7 April 2021.
The applicant notes the report of the MRI scan dated 13 November 2019 which reveals an annular tear which contacts the spinal cord at C5/6. Dr Singh notes in his report dated 8 December 2020 that the cervical MRI scan does show pathology, and that he does have nerve root compression with radicular symptoms. This is confirmed in the report of Dr Lim dated 25 August 2020, who confirms the applicant’s symptoms as being consistent with complaints since the fall from the ladder.
The applicant submits that Dr Marchart’s discussion in respect of surgery is now in accordance with what he wants. Similarly Dr Khong, who notes that injections into the cervical spine gave transient relief, finds that despite radiological evidence of pre-existing changes in the cervical spine he does not agree that the ongoing workplace injury has resolved.
The applicant submits that, having regard to the failure of conservative treatment and his wish to pursue the fusion surgery recommended by Dr Singh, there should be a finding in his favour that the surgery proposed by Dr Singh is reasonably necessary as a result of injury on 29 July 2019.

Respondent

The respondent refutes the opinion of Dr Lim in his report dated 25 August 2020 that the applicant’s symptoms are consistent with his complaints since the fall from the ladder. The respondent notes the applicant’s evidence at [11] in his statement dated 23 September 2021 of waking up in RNSH with headaches, left wrist pain and neck and lower back pain, and that there is no explanation in his statement of the intervening period between that time and when he first consulted Dr Lim in August 2020, some 14 months after the accident. The respondent notes in the clinical notes of RNSH the lack of any record of radicular symptoms in the right and left arm[16].
[16] ARD p 221.
The respondent submits that a perusal of the RNSH notes covering the period from his admission on 29 July 2019 to discharge on 6 August 2019[17] does not reveal the recording of any neurological symptoms. The respondent notes the CT scan of the brain and cervical spine on 29 July 2019[18] which reveals no cervical spine fracture, that vertebral body and facet joint alignment is preserved and anatomical, mild uncovertebral degenerative changes at C5/6 and C6/7 levels with small posterior disc, multilevel spinal canal stenosis, and no abnormality identified within the visualised soft tissues of the neck.
[17] ARD pp 60-53.
[18] ARD p 175.
The report of Dr Wilson, the Neurosurgery Registrar at RNSH dated 2 September 2019[19] does not contain any record of radiculopathy in the upper limbs or complaint of upper limb pain. Similarly Dr Bazina, who treated the applicant for headaches and post-concussion syndrome, does not record complaint of radicular symptoms or pain in the upper limbs.
[19] ARD p 128.
The respondent submits that there is no evidence from Dr Lim in his report dated 25 August 2020 of examination of the cervical spine, or of right sided pins and needles, and the basis of the diagnosis recorded in the report is unclear. The clinical findings do not support a diagnosis of radiculopathy.
The respondent submits that Dr Singh, who first reviewed the applicant on 10 November 2020, finds symptoms of neck pain with radiation to the periscapular area and the arms, worse on the right side, in contrast with the findings of Dr Lim of neck stiffness and pain travelling down to left shoulder to left wrist. Dr Singh does not identify in his report when symptoms commenced or what they were. The respondent submits that there is a large gap in the clinical material, and that the findings of Dr Lim are not supported by the available evidence. Similarly the respondent submits that Dr Singh in his Estimate of Fees for Surgery dated 17 February 2021 does not identify what he is recommending the surgery for. He does not supply reasons as to why the surgery should be undertaken and why it may assist the applicant.
In respect of the examination and report of Dr Machart, dated 24/29 July 2020, the respondent notes that this was 12 months after the accident, and one month prior to the first consultation with Dr Lim on 24 August 2020.
In respect of the report of Dr Khong, the respondent notes that Dr Khong did not have the benefit of a face-to-face consultation with the applicant, but saw him via video conference, and that therefore the findings in that report should be treated with caution. Dr Khong does not record any date as to the onset of he numbness in the left periscapular region radiating down the left arm, or indeed of previous symptoms on the right side. The doctor seems to accept that those symptoms commenced shortly after the applicant’s discharge from hospital, which on the evidence, is not the case. The respondent submits that it is difficult to accept his opinion in light of that clinical history. The respondent also notes that Dr Khong has not seen the latest MRI scan of the cervical spine dated 24 February 2022, although he has reviewed the report of Dr Nair dated 7 April 2021 with which he disagrees.
The respondent submits that when Dr Khong states that the applicant’s fall at work caused an exacerbation of pre-existing degenerative changes in his cervical spine causing neck and arm pain, that is on the basis of Dr Khong accepting that Mr Zhang experienced symptoms from shortly after the fall. That is not the case.
Dr Nair, in his latest, supplementary, report dated 29 March 2022 has had the benefit of seeing the latest MRI of the cervical scan dated 24 February 2022, which has not caused him to change his opinion. That is, that the applicant is no longer suffering from a work related injury, and that when he examined Mr Zhang, he did not have any convincing radicular symptoms. The respondent submits that the focus of the opinion of Dr Nair corresponds with the pathology found on investigation and with the clinical position of the applicant. He was apprehensive about undergoing surgery, and said that the steroid injections he underwent did not provide much benefit. On the other hand, Dr Khong reports that these may have helped with his pain. There is no reporting of when the injections were undertaken, and it is unclear as to what the applicant actually says about when he had the injections. He does not address that in his statement; see [16] of his statement dated 23 September 2021. However what the applicant says as to the effectiveness of the injections is contrary to what Dr Khong records in his report dated 15 September 2021 that the injections helped with headaches and upper limb pain.
The respondent notes that there is no finding by Dr Nair of symptoms that would indicate radiculopathy. Dr Nair notes that the findings revealed by the scans are degenerative in nature, and that the changes revealed in the scans would have not developed in the period between the date of injury and when the scans were carried out.
In terms of the relevant matters set out by Deputy President Roche in Diab v NRMA Ltd[20] in respect of the reasonable necessity for treatment pursuant to s 60 of the 1987 Act, the respondent submits that:
(a)    the treatment proposed by Dr Singh is not appropriate having regard to Dr Nair’s diagnosis of the condition in the applicant’s cervical spine. That is, it is a degenerative condition, and that any exacerbation of the degenerative condition in the cervical spine which occurred on 29 July 2019 has resolved, and the surgery is not appropriate in the circumstances of this case. The absence of any convincing radicular symptoms would also militate against the appropriateness of surgical treatment;
(b)    in respect of the availability of alternative treatment, the respondent points to the injections, both diagnostic and therapeutic, undergone by the applicant and differing histories as to the effectiveness if such treatment;
(c)    the respondent concedes that the medical evidence does not indicate much available to the applicant in the way of alternative treatment, although there was a request by general practitioner, Dr Mo, for hydrotherapy treatment, which does not appear to have been undertaken, or the potential effectiveness of which is unexplained;
(d)    the cost of the treatment is not raised as an issue, and
(e)    in respect of the actual or potential effectiveness of the treatment and the acceptance by medical experts of the treatment as being appropriate and likely to be effective, the respondent notes that the applicant relies on the opinion of Dr Khong as opposed to the respondent’s reliance on Dr Nair, who it submits, says that surgery is not appropriate at all in the circumstances. Dr Singh does not explain why the surgery is appropriate.
[20] [2014] NSWWCCPD 72 (Diab).

Applicant in response

The applicant submits that when he was in RNSH following the fall he was in a state of confusion when admitted to the hospital, not able to recall events and denying that he had a fall. He was suffering from concussion.
The applicant points out that Dr Khong notes that analgesia, physiotherapy and steroid injections have been trialled without success, and that the doctor finds no other alternative apart from surgery. The applicant also submits that Dr Khong clearly notes the injections into the cervical spine, that there were two such injections, and that after the second one, the doctor was recommending that cervical surgery take place.
The applicant submits that his case rests on the opinion of Dr Machart which is consistent with the opinion of Dr Khong, and that a finding of the reasonable necessity for surgery does not depend on whether or not there is radiculopathy as a result of injury to the cervical spine. Dr Machart does not find radiculopathy, but refers to surgical intervention on the basis of the aggravation of the cervical spondylosis. Radiculopathy is reported by doctors from time to time, but the absence thereof does not mean the cervical spinal surgery is not reasonably necessary.
The applicant has already had two to three years of conservative treatment, hydrotherapy is not an alternative treatment, and the recommendation for surgery has progressed from a recommendation for surgery at the C5/6 level to the C6/7 level, indication the progressive worsening of the disease condition in the cervical spine.

FINDINGS AND REASONS

Injury

The respondent concedes that that applicant suffered injury to the cervical spine but puts in issue the nature of such injury and the pathology resulting therefrom. The conclusion of the radiographer who conducted the MRI of the cervical spine on 13 November 2019 is of a degenerate spine, with changes most marked at C5/6 and C6/7. The outcome of the MRI scan of the cervical spine carried out on 24 February 2022 is referred to above at [18]. That did not cause Dr Nair to change his opinion expressed in his earlier report dated 7 April 2021 that there was clinical radiological evidence of cervical spondylosis confirmed by the MRI scan of November 2019. Dr Nair says that cervical condition is degenerative in nature, with the radiological findings indicating chronicity.
Dr Nair does not rule out injury to the cervical spine on 29 July 2019. He says in his earlier report that there is no evidence of an ongoing workplace injury in either the cervical spine or lumbar spine (emphasis added). This opinion is reflected in the s 78 notice dated 7 October 2021, the author of which comments on the opinion of Dr Khong in his report dated 15 September 2021, and on behalf of iCare denies liability for the cost of surgery proposed by Dr Singh. At that stage Dr Singh’s recommendation was for C5/6 anterior cervical decompression and fusion.
The respondent conceded injury to the cervical spine at the arbitration hearing but confirms that the nature of such injury is in issue.
The applicant suffered a significant head injury in the fall from the ladder on 29 July 2019 as is evident from the clinical notes from RNSH. He was an in patient at the hospital until 6 August 2019. Mr Zhang thereafter consulted Dr An who issued a WorkCover certificate of capacity containing a diagnosis of injury of “subarachnoid haemorrhage after fall”. Dr An referred the applicant for an X-ray of the left wrist, cervical spine and lumbar spine which was carried out on 10 September 2019. The X-ray revealed mild reduction in disc height at C5/6 and C6/7, associated with endplate osteophytosis.
Dr An referred the applicant to Dr Bazina for treatment of his primary issue at that time, daily headache. Dr Bazina saw Mr Zhang on 29 May 2020. She noted that Mr Zhang, nearly a year since injury, had ongoing headaches, fatigue, irritability and insomnia which may be related to concussion syndrome or alternatively related to medications, stress and/or cervicogenic pathology and injuries from his neck.
Dr Machart assessed the applicant on 24 July 2020. He recorded minor current symptoms in the neck, that Mr Zhang was asymptomatic before the injury, and that his complaints chronologically related to the injury. In the cervical spine he recorded on examination symmetrical movement limited by quarter from expected normal. no spasm, no deformity and no muscle guarding. He did not record radiculopathy. Dr Machart had access to the following material relevant the cervical spine:
(a)    MRI scan of the cervical spine dated 13 November 2019;
(b)    WorkCover medical certificate of Dr An dated 23 June 2020 recording subarachnoid haemorrhage after fall. Headaches, dizziness, back pain, shoulder/neck/cervical pain, wrist pain;
(c)    report of Dr Bazina dated 1 June 2020, and
(d)    report of Dr Hsu dated 4 December 2012 [sic, 2019], follow up after MRI and bone scan recording pathology at C5/6. C6/7, L4/5 and L5/S1. Dr Hsu suggested L5/S1 epidural injection. As noted above at [12], Dr Hsu who was in the same practice as Dr Singh continued to treat the applicant for his lumbar spinal condition and Dr Singh treated the cervical spine.
Dr Machart diagnosed the applicant as suffering from cervical spondylosis, aggravated by the injury. He noted conservative treatment thus far as analgesics, anti-inflammatories, physiotherapy and steroid injections. He recommended ongoing conservative treatment, physiotherapy, own exercises, analgesics, and anti-inflammatories, and expected improvement.
Dr Khong in his report dated 15 September 2021 diagnoses the applicant as having suffered an exacerbation of pre-existing degenerative changes in the cervical spine causing neck and arm pain.
In my view there is sufficient evidence to find that the aggravation and/or exacerbation of the pre-existing degenerative condition in the cervical spine caused by the work injury on 29 July 2019 is continuing. Mr Zhang was asymptomatic prior to the fall, and has continued to suffer significant symptoms since that time. This is confirmed by the histories recorded by the treating practitioners he has seen since his injury, and by Dr Machart and Dr Khong. I do not accept the opinion of Dr Nair that there is no evidence of an ongoing workplace injury in the cervical spine.

Treatment

The respondent’s submissions are principally based on the lack of findings of radiculopathy as a reason for submitting that the surgery is not reasonably necessary, together with Dr Nair’s opinion that any work caused aggravation or exacerbation of the degenerative condition in the cervical spine has ceased. The respondent also raises an issue as to whether, on the evidence, conservative treatment measures have been exhausted.
Dr An in the Certificate of Capacity issued 0n 25 May 2020[21] gives a diagnosis as follows:
“subarachnoid haemorrhage after fall, severe headache, dizziness, Back pain, Shoulder/neck/cervical region pain, wrist pain”
“Management Plan for This Period” is listed as “review by Neurosurgeon/Neurologist”, and “cortisone injection” is listed in the next item in the Certificate, which contains details of “Referral to another health care provider...”
[21] Reply p 6.
In her report to Dr An dated 29 June 2019 Dr Bazina, a neurosurgeon to whom the applicant was referred for treatment of his headache, says:
“I have nothing further to offer this gentleman, he has had assessments and treatments provided to him for his cervical spine and his shoulder, all of the treatments seem to worsen his headache. There appears to be no cognitive deficits, he is independent as previously stated and therefore I would assume that he has reached maximum medical improvement in terms of his head injury and his cervical spine.”[22]
[22] ARD p 116.
The past treatment noted by Dr Machart, and treatment recommended as ongoing, is referred to at [52] above. In respect of surgery, Dr Machart said:
“Conservative treatment options should be exercised. If not successful, then surgical intervention can be entertained. This is not absolutely essential. The decision is reasonably left between the patient and the treating doctors. At the present time the patient does not want surgical intervention. This can be safely put aside.”
On 10 November 2020 Dr Singh wrote to Dr Morgan Mo at Workers Doctors following review on that day. He suggested a trial injection in the cervical spine as a diagnostic and therapeutic measure, with a revue following the injection.
On 8 December 2020 Dr Singh reviewed the applicant and noted that the MRI scan showed pathology in the cervical spine, and that Mr Zhang was very apprehensive about any surgical treatment. The doctor said that he did not have any spinal cord compression although he did have nerve root compression with radicular symptoms. Mr Zhang was advised to return to the doctor to discuss his surgical option when ready to consider surgery.
On 17 February 2021 Dr Singh provided the insurer with his estimate of fees for the C5/6 surgery he proposed.
When Dr Khong examined and reported on the applicant on 15 September 2021 he made the recommendation for surgery referred to in [17] above. Dr Khong foreshadowed the surgery extending to C6/7 from the C5/6 fusion originally suggested by Dr Singh.
The applicant in his statement dated 23 September 2021 refers to his treatment to date as including general practitioner reviews, physiotherapy, hydrotherapy and referrals for psychiatric treatment. Current physical difficulties listed include neck pain, right shoulder pain and left sided pain and numbness to left arm. He says that he tried steroid injections without much benefit. Mr Zhang affirms his intention to pursue fusion surgery as recommended by Dr Singh in his further statement dated 6 May 2022. The recommendation by Dr Singh is for the surgical treatment for the cervical spine referred to in his report dated 8 December 2020.
Mr Zang confirms in his statement dated 6 May 2022 that he now wishes to undergo the surgery recommended by Dr Singh on 17 February 2021 at the C5/6 level of the cervical spine. In this statement the applicant does not refer to the latest estimate of fees for surgery of Dr Singh dated 7 March 2022 in respect of surgery extending to the C5/7 level. That is the surgery now sought by the applicant.
I do not accept the respondent’s submission that conservative treatment options have been insufficiently investigated and undertaken. The applicant has undergone significant conservative treatment without any lasting or significant relief of the symptoms in his cervical spine. The respondent concedes that that the medical evidence does not indicate much available to the applicant in the way of alternative treatment. I do not accept that the reference to the appropriateness of surgical treatment is predicated on there being a finding of radiculopathy in the cervical spine. This is not the basis on which Dr Machart raised the possibility of surgery.
Dr Khong, who examined the applicant via videoconference which prevented a formal examination, noted Mr Zhang’s complaints of neck pain, right shoulder pain, and left sided arm pain and numbness. He said that the MRI scan demonstrates degenerative disc disease at C5/6 and C6/7, with left C5/6 and bilateral C6/7 foraminal stenosis. The bone scan demonstrates some increased uptake at C5/6. Dr Khong is of the opinion that the applicant’s fall at work caused an exacerbation of pre-existing degenerative changes in the cervical spine causing neck and arm pain.
Dr Khong says the following in respect of cervical spinal surgery:
“If Mr Zhang finds his neck and left arm symptoms intolerable, surgery would be reasonably necessary. He would benefit from at least a C5/6 anterior cervical discectomy and fusion, but may also require a fusion at C6/7 due to the bilateral foraminal stenosis.”
Dr Khong says that alternative treatments are unlikely to provide lasting long term relief. He says that regarding the cervical spine, if the neck and arm symptoms significantly trouble Mr Zhang, there is no alternative apart from surgery, as he has trialled analgesia, physiotherapy and steroid injections. Dr Khong does not base his opinion as to the reasonable necessity of cervical spinal surgery on a finding of radiculopathy.
Having regard to the relevant matters, according to the criteria of reasonableness set out by Roche DP in Diab, my finding is that the cervical spinal surgery proposed by Dr Singh is reasonably necessary as a result of injury to the cervical spine on 29 July 2019 for the following reasons:
(a)    the surgery is appropriate, as conservative treatment has not provided the applicant any significant or long term relief from the symptoms in his cervical spine;
(b)    alternative treatment is available and has been trialled without success;
(c)    the cost of the proposed surgery is not in issue;
(d)    based on the opinions of Dr Machart, Dr Singh, the treating surgeon, and Dr Khong, the surgery has potential effectiveness to relieve the symptoms in the cervical spine, and
(e)    the treatment is accepted by the medical experts referred to in (d) above as being appropriate and likely to be effective.
As Deputy President Roche observed at [89] in Diab:
“...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.”
On the facts of this case, there is little or no evidence to show that the same potential outcome from surgical treatment of the applicant’s surgical spine could be achieved by different treatment. The respondent acknowledges this in submissions.

SUMMARY

The applicant suffered aggravation and/or exacerbation of cervical spondylosis on 29 July 2019 arising out of or in the course of his employment with the respondent.
The applicant has not recovered from such injury.
The surgery proposed by Dr Singh, C5/7 anterior cervical decompression and fusion, is reasonably necessary as a result of injury to the cervical spine on 29 July 2019.
The respondent is to pay the costs of and incidental to such surgery pursuant to s 60 of the 1987 Act.

[2022] NSWPIC 240

25 May 2022