A statement is attached setting out the Commission's reasons for the determination.

1. Farooq Ahmad was employed by KWF Pty Limited (KWF) in, a car rental company of which he was a working director when he suffered an injury to his lumbar spine lifting a heavy printer on 14 March 2023.
2. Dr Al Kawaja has recommended that he undergo surgery to in the form of L4/5 and L5/S1 anterior lumbar interbody fusion, followed by L4/5 and L5/S1 posterior lumbar fusion with osteotomies and decompression.
3. KWF's insurer has declined liability for the cost of the surgery. The only issue in dispute is whether the surgery is reasonably necessary medical treatment as a result of the injury on 14 March 2023.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. The matter was listed for conciliation conference and arbitration hearing on 22 August 2025 when Mr McGuire, solicitor, appeared for Mr Ahmad and Mr Stockley of counsel appeared for KWF.
2. I was informed that Mr Ahmad remains in receipt of weekly compensation.
3. KWH sought to rely on an Application to Lodge Additional Documents dated 15 August 2025 attaching a report from Dr Biggs dated 14 August 2025. The report was discussed in conciliation and its tender was opposed. I was informed that Mr Ahmad had commenced proceedings in May 2025 which were discontinued in June 2025. KWF did not offer an explanation for the delay in seeking the additional report. I informed the parties that I would not admit the report given the history of recent proceedings and the lack of an explanation for the delay. Mr Stockley said that KWF did not require additional or more formal reasons.
4. 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 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.

1. The following documents were in evidence before the Personal injury Commission (Commission) and considered in making this determination:

(a) Application to Resolve a Dispute and attached documents, and

(b) Reply.

1. There was no oral evidence.
2. Mr Ahmad described the injury in his short statement dated 12 May 2025. He said that he was initially referred to Dr Giblin who recommended a left sided L4/5 epidural injection and ongoing physiotherapy. Mr Ahmad was referred to Dr Al Kawaja, who recommended the ongoing physiotherapy and a second injection. Mr Ahmad had the second injection in early 2024. On 25 June 2024 he saw Dr Al Kawaja again who recommended surgery. Mr Ahmad said that he was initially reluctant to undergo surgery but he has reconsidered his position because his pain had increased over the last year.
3. Dr Saeed's notes show that he managed Mr Ahmad's condition from the date of injury, referring him to Dr Giblin. Mr Ahmad was reluctant to undergo the injection recommended by Dr Giblin and sought a second opinion. By September 2023, Mr Ahmad was undergoing hydrotherapy.
4. Dr Saeed also referred Mr Ahmad to Dr Sheikh for both rehabilitation and pain management. On 17 July 2023, Dr Sheikh saw Mr Ahmad for the first time and recommended fortnightly treatment.
5. In October 2024, Dr Sheikh wrote to KWF's insurer and said that, while Mr Ahmad had achieved little improvement in pain and functional capacity, ongoing conservative treatment has helped him to control any deterioration of his physical and psychological condition. Dr Sheikh said that Mr Ahmed was engaged in counselling and slowly adopting a "CBT approach" to mood and pain management. He said:

"I strongly believe that all the alternative conservative treatment options should be trialled prior to going ahead with posterior lumber spinal fusion. In my last consultation with Mr. Farooq on 24/10/24, he stated that he has started the hydrotherapy and he feels it is helping his back pain and specially the pain in his left leg. I think we should give him some time to see the outcome from his hydrotherapy sessions along with his back strengthening exercises and conservative treatment."

1. Dr Al Kawaja reported to Dr Saeed on 13 November 2023 after seeing Mr Ahmad for the first time. He said that an MRI scan showed a disc injury at L4/5 and L5/S1. He said that he discussed Mr Ahmed's treatment options in detail and recommended he continue physiotherapy and hydrotherapy. He also offered an injection into his spine which may help. He considered that surgery may be possible if the injection did not work.
2. On 5 February 2024 Dr Al Kawaja informed Dr Saeed that the injections had been approved and they would be performed as soon as possible. The first injection was performed on 21 February 2014 and the second was performed on 15 May 2024. On 25 June 2024, Dr Al Kawaja recommended fusion at L4/5 and L5/S1 from the front and back but Mr Ahmad wanted to continue physiotherapy. Dr Al Kawaja asked Dr Saeed to refer Mr Ahmad for physiotherapy and hydrotherapy.
3. On 16 September 2024 Dr Al Kawaja said that Mr Ahmad had told him that he wanted to undergo surgery as he could no longer bear the pain. Dr Al Kawaja said that Mr Ahmad understood that he would fuse the spine from the front and the back and set out a detailed list of possible complications. Dr Al Kawaja prepared quotes dated 17 September 2024.
4. On 9 December 2024 Dr Al Kawaja wrote to Dr Saeed and said that Mr Ahmad had been to see Dr Biggs who recommended hydrotherapy before any surgery. Mr Hamad was undergoing physiotherapy and hydrotherapy and Dr Al Kawaja asked him to return in six weeks. He said that if Mr Ahmad's condition was getting better "it will be great news" but if not, he will reconsider surgery.
5. Dr Al Kawaja reported to Dr Saeed on 20 February 2025. He said that Mr Ahmad had been doing hydrotherapy for a long time with minimal benefit. Mr Ahmad was disabled from the pain and would like to try surgical treatment. He sought approval for L4/5 and L5/S1 anterior lumbar interbody fusion, followed by L4/5 and L5/S1 posterior lumbar fusion with osteotomies and decompression at two different sessions.

1. Mr Ahmad saw Dr Moloney, neurosurgeon, at the request of his solicitors. In his first report dated 9 July 2024, Dr Moloney recorded a history of the injury and Mr Ahmad's treatment. He said that Mr Ahmad was able to get on and off the examination couch relatively normally though his straight leg raise was very limited. By the time of that examination, Mr Ahmad had undergone two injections which had been positive for a short time and Dr Al Kawaja had recommended surgery, though Mr Ahmad was determined not to have it. On examination, Dr Moloney said that Mr Ahmad's leg pain did not follow a particular dermatomal distribution and there were no signs at his ankles indicative of L5 of S1 radiculopathy.
2. Dr Moloney considered that Mr Ahmad sustained an aggravation and possibly acceleration of disc changes at L4/5 and that the short positive response to injections confirmed that the symptomatic level was L4/5.
3. In his report dated 11 March 2025, Dr Moloney said that Mr Ahmad had tried hydrotherapy, physiotherapy, medication and injection therapy, none of which had relieved his symptoms. He said that Mr Ahmad told him on the previous occasion that he was unwilling to take Dr Al Kawaja's advice to have the surgery because he was nervous. After hydrotherapy, physiotherapy, injections and medication he felt he had nowhere else to go other than surgery.
4. Dr Moloney said that his physical examination was disappointing because there was obvious exaggeration. Lying down, Mr Ahmad was able to straight leg raise only to 10°, with reports of excruciating pain. In a sitting position, Dr Moloney achieved the equivalent of 80°. However, Dr Moloney doubted that Mr Ahmad was manufacturing symptoms for financial gain and queried a "cultural phenomenon."
5. Dr Moloney said that Mr Ahmad suffered discogenic back pain with bilateral leg pain, worse on the left. He considered that Mr Ahmad had constitutional changes, aggravated by the injury at work, with the prolapsed disc caused by the incident on 14 March 2023. He considered "on balance" that the surgery proposed was appropriate given that conservative treatment had not relieved Mr Ahmad's symptoms. He noted that the cost of a two level spinal fusion is between $60,000 to $70,000. Dr Moloney said it "is obvious that he does have back pain and leg pain and that surgery would be his best option." He had some doubt about Mr Ahmad's ability to go through the operation and postoperative management.
6. Dr Biggs examined Mr Ahmad at the request of KWF, and reported on 12 November 2024. Dr Biggs recorded that Mr Ahmad complained of severe low back pain with radiation to the left lateral thigh and calf together with numbness in all the toes of his left foot and occasionally in his right. On examination, Dr Biggs observed straight leg raising of 5° on the right and 0° on the left and Mr Ahmad was unable to move his left leg onto the examination couch unaided. Dr Biggs said that examining power was almost fruitless. Knee jerks were present and equal but he could not elicit ankle jerks.
7. Dr Biggs said that Mr Ahmad had asymptomatic degenerative disease at L4/5 and L5/S1, evidenced by facet joint arthropathy. He probably suffered an annular tear to one of two discs at the time of the injury, noting that there are tears in both. Dr Bigg's opinion was that Mr Ahmad suffered an L4/5 annular disc tear.
8. Answering a long series of questions, Dr Biggs said that employment was a substantial contributing factor to the current symptoms. When asked if the proposed spinal fusion surgery was appropriate and reasonably necessary, he said:

"I do not believe Mr Ahmed is a good surgical candidate. There is marked catastrophising of symptoms and in the presence of a Worker's Compensation claim where secondary gain is at stake, I believe he would do extremely poorly from surgical intervention.

I agree entirely with Dr Nadeem Sheikh's comment in her letter to iCare dated 28 October 2024 where she stated, 'I strongly believe that all the alternative treatment options should be trialled prior to going ahead with lumbar spinal fusion'."

1. Dr Biggs said that hydrotherapy and exercise physiology had recently started and the effect of the treatment was yet to be assessed. He said he would prefer to see Mr Ahmad assessed with a formal inpatient multi-disciplinary pain program.
2. Asked about the surgical approach Dr Al Kawaja proposed to take and whether it was a recognised approach "amongst other surgeons", Dr Biggs said:

"The exact approach for a two-level fusion comes down to Surgeon's preference. A posterior lumbar interbody fusion would probably suffice in this case. There is some rationale in the 360 degree approach as it tends to give better lordosis with an anterior cage. In this case with congenitally short pedicles, a stand-alone anterior fusion is probably not appropriate as it would not address any canal stenosis on the basis of short pedicles."

1. In its s 78 notice dated, KWF's insurer said that Mr Ahmad's treatment history showed that not all conservative and alternative treatment options had been exhausted. On that basis and relying on the report of Dr Biggs, the insurer "does not believe" that the surgery is reasonable necessary and declined approval.

1. Mr Stockley offered to address first. He referred to Burke CCJ's statement in Rose v Health Commission NSW:[1]

"3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.

4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.

5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition."[2]

1. Mr Stockley said that the treatment clearly fell within the definition of medical treatment. While it is presumed to be reasonable, that presumption is rebuttable. Mr Stockley said that words such as "essential" were superlatives rather than comparative terms and that there was an element of assessment to be undertaken. He said that it was the last part of the words quoted which comes into play in the facts of this case.
2. Noting that there were reports from three neurosurgeons, Mr Stockley said that my determination would come down to an assessment of their opinions. He noted that Mr Ahmad is beset by continuing symptoms that are not getting better, and which have not responded to other forms of treatment. Mr Stockley agreed KWF cannot challenge Mr Ahmad's evidence in that regard, though said I would conclude that Mr Ahmad is probably an unsophisticated individual who is very much reliant upon the recommendations of his surgeons.
3. Mr Stockley took me through the medical reports and said that Dr Al Kawaja did not provide any insight as to why he proposed both anterior and posterior fusions and why he has done so since an early stage in Mr Ahmad's treatment. Mr Stockley highlighted Dr Moloney's comments about the unsatisfactory nature of his examination and said that, even though he supported the need for surgery, his support for it was tepid. Dr Moloney also costed the surgery at $70,000 which was significant and should be taken into account.
4. Turning to Dr Biggs's report, Mr Stockley pointed out that he accepted the causation of the onset of Mr Ahmad's symptoms but considered he was not a good candidate because of a marked catastrophising of symptoms. Mr Stockley conceded that Dr Biggs had not explained his reference to secondary gain but said that Dr Bigg's opinion was that Mr Ahmad had all the hallmarks of someone who may have a bad result from surgery. Dr Biggs did say that the approach to surgery comes down to the surgeon's preference but said that a posterior fusion would probably suffice, though an anterior fusion alone would not. While Dr Biggs did not go so far as to say that doubling the surgery doubles the risks, Mr Stockley said that was an inference I could reasonably draw.
5. KWF urged on me the proposition that the surgery is a very expensive procedure which is highly invasive and has poor prospects of a successful outcome. When Burke CCJ's statement in Rose was considered, Mr Stockley said that the factors were against the orders being made.
6. In reply, Mr McGuire said that Dr Biggs' report contained no criticism of the type of operation proposed and, if anything said it was the approach he would adopt or not criticize. He said that Dr Biggs was solely concerned as to whether or not Mr Ahmad was a good surgical candidate.
7. Mr McGuire said that Mr Ahmad had followed all of the doctors' recommendations as to treatment including physiotherapy, hydrotherapy and two injections. He noted that hydrotherapy had been suggested by Dr Biggs and Dr Al Kawaja noted that. Mr Ahmad had tried everything he could but his pain became worse.
8. Mr McGuire stressed that Mr Ahmad is a director of his own business and that there was no advantage to him to be off work. He was initially unwilling to have surgery and had now reluctantly agreed. Though Dr Moloney observed some overreaction, he considered on balance that the surgery was warranted.

1. In Diab v NRMA Limited,[3] Roche DP referred to Burke CCJ's statement in Rose. Roche DP noted that the Commission has generally been guided by Burke CCJ's statement in Bartolo v Western Sydney Area Health Service:[4]

"The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary."[5]

1. After considering the use of "reasonably necessary" in other contexts, Roche DP said:

"'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."[6]

"In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose ..., namely:

(a) the appropriateness of the particular treatment;

(b) the availability of alternative treatment, and its potential effectiveness;

(c) the cost of the treatment;

(d) the actual or potential effectiveness of the treatment, and

(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.

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."[7]

1. Roche DP said that those matters were useful heads for consideration but that the essential question remained whether the treatment was reasonably necessary and that it was not simply a matter of asking - as suggested in Bartolo - if the worker should have the treatment or not.
2. There is no dispute that surgery of the kind proposed by Dr Al Kawaja may be appropriate to treat an injury such as that suffered by Mr Ahmad. The dispute lies in whether it is appropriate for him.
3. The surgery proposed by Dr Al Kawaja is significant, being an anterior fusion and a posterior fusion. While Dr Al Kawaja has not explained the rationale for the two surgeries, the reason can be gleaned from the other medical evidence. Dr Moloney said that surgery is Mr Ahmad's best option, having considered the surgery that is proposed. Dr Biggs said that a posterior fusion alone would probably suffice for Mr Ahmad but that an anterior fusion alone would not because of congenitally short vertebral pedicles. He conceded some rationale for an anterior cage as it provides better lordosis, which I understand to mean that it will preserve something of the natural spinal curve.
4. The only alternative treatment that Mr Ahmad has not tried is the inpatient pain management program that Dr Biggs considered appropriate. Mr Ahmad was reluctant to undergo surgery and resisted it for about a year. He has had medication, pain management treatment from Dr Sheik, physiotherapy and hydrotherapy. Taking all of that treatment into account, Dr Moloney said that on balance the surgical treatment was appropriate. While the injections did not relieve the pain for an extended period, they showed that L4/5 was the site of Mr Ahmad's pain.
5. The cost of the treatment is substantial. That is not, of itself, enough to decide that it is not reasonably necessary when other factors are considered. There is no evidence as to the comparative cost of other treatments.
6. While Dr Moloney expressed some concern as to the outcome of the surgery, he considered that, on balance, Mr Ahmad should undergo it. Dr Biggs counselled against it because he suspected issues of secondary gain and considered that Mr Ahmad was not a good surgical candidate. Presumably Dr Al Akawaja considered those issues and proposed surgery.
7. Dr Biggs' concerns about secondary gain are not explained. In the context of an accepted claim in which ongoing weekly payments of compensation are made, it is somewhat difficult to identify what the secondary gain might be.
8. It is not the Commission's role to draw conclusions as to whether or not Mr Ahmad is likely to be compliant with rehabilitation or is a poor surgical candidate.
9. Taking all of those factors into account and the advice that Mr Ahmad has received, I agree that on balance, the surgery is reasonably necessary.
10. I order KWF to pay Mr Ahmad's s 60 expenses of and incidental to L4/5 and L5/S1 anterior lumbar interbody fusion, followed by L4/5 and L5/S1 posterior lumbar fusion with osteotomies and decompression proposed by Dr Al Kawaja.

[1] (1986) NSWCC2; [1986] NSWCC 2; 2 NSWCCR 32.

[3] [201]4 NSWWCCPD 72[2014] NSWWCCPD 72; , (2014) 16 DDCR 54.

[4] [1997] NSWCC 1; 14 NSWCCR 233.