1. That hydrotherapy is not reasonably necessary as a result of the accepted work injury sustained on 13 April 2023.
2. That physiotherapy is reasonably necessary as a result of the accepted work injury sustained on 13 April 2023.
3. Award for the respondent in respect to the claim pursuant to s 60 of the Workers Compensation Act 1987 for the costs of hydrotherapy.
4. The respondent is to pay the reasonably necessary costs of physiotherapy treatment pursuant to s 60 of the Workers Compensation Act 1987.

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

1. Ismail Ait Aiss (applicant) has brought proceedings in the Personal Injury Commission (Commission) in which he pleads that he sustained injury on 13 April 2023 to his back and both shoulders as well as a secondary psychological injury whilst in the course of his employment with Vistamaze Pty Ltd (respondent) when he was required to lift and move multiple wooden boards weighing approximately 70kg.
2. The respondent does not dispute that the applicant sustained injury.
3. The relief sought by the applicant is a general order pursuant to s 60 of the Workers Compensation Act 1987 (1987 Act) for the payment by the respondent of reasonably necessary physiotherapy and/or hydrotherapy costs.
4. It is the applicant's evidence that on 13 April 2023 he was required with a co-worker to lift and move about 50 heavy wooden boards which weight approximately 70kgs each from one stack to another on the floor. That after they had moved about 20 or 30 of these boards, they were lifting and shifting one of the boards when he felt sharp pain in his lower back and all the way up to his shoulders. The applicant was unable to keep working and he notified the respondent of the injury and went to his doctor.
5. It is the applicant's evidence that he regularly has back pain which worsens with activity and which sometimes shoots up his back and into his shoulders. It is the applicant's evidence that he also has pain in his shoulders every day and struggles to move them like he used to.

1. The parties agree that the following issues remain in dispute:

(a) Whether hydrotherapy and/or physiotherapy is reasonably necessary as a result of the accepted work injury: s 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. The matter was listed for conciliation conference/arbitration hearing before me on

12 August 2025. Mr Josh Beran, counsel, instructed by Mr Jimmy Dufour, solicitor, appeared for the applicant, who was present. Mr John Gaitanis, counsel, instructed by Mr Rahul Balan, solicitor, appeared for the respondent. The proceedings were conducted in-person. 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.

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

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

(b) Reply and attached documents, and

(c) documents attached to an Application to Lodge Additional Documents lodged on behalf of the respondent dated 7 August 2025.

"(1) If, as a result of an injury received by a worker, it is reasonably necessary that -

(a) any medical or related treatment (other than domestic assistance) be given, or

(b) any hospital treatment be given, or

(c) any ambulance service be provided, or

(d) any workplace rehabilitation service be provided,

the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).

Compensation for domestic assistance is provided for by section 60AA."

1. Section 60 requires that the treatment is "reasonably necessary" as a result of an injury.
2. Burke CCJ considered the expression "reasonably necessary", then appearing in s 10 of the Workers Compensation Act 1926 (1926 Act) relating to treatment expenses, in some detail in Rose v Health Commission (NSW) [1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose). His Honour said at [42]:

"Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular 'treatment' cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment."

1. The "reasonably necessary" test was also considered in Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; (1997) 14 NSWCCR 233 (Bartolo). In Bartolo, Burke CCJ described the test of "reasonably necessary" as follows:

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

"In determining whether a particular regimen is medical treatment and whether it is reasonably necessary that such be afforded to a worker and that such necessity results from injury, it appears to me some general principles can be stated:

1. Prima facie, if the treatment falls within the definition of medical treatment in section 10(2) [the 1926 Act], it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2. However, though falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the party seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition."
6. The legal test to be applied when determining whether proposed treatment is reasonably necessary as a result of a workplace injury as required by s 60 of the 1987 Act was considered by Roche DP in Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab) where stated at [86]:

"Reasonably necessary does not mean 'absolutely necessary' (Moorebank at [154]). If something is 'necessary', in the sense of indispensable, it will be 'reasonably necessary'. That is because reasonably necessary is a lesser requirement than 'necessary'. Depending on the circumstances, a range of different treatments may qualify as 'reasonably necessary' and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is 'reasonable and necessary', which is a significantly more demanding test that many insurers and doctors apply."

1. In Diab Deputy President Roche cited the decision of Burke CCJ in Rose with approval and stated:

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

(a) the appropriateness of the particular treatment;

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

(c) the cost of the treatment;

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

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

[89] With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.

[90] While the above matters are 'useful heads for consideration', the 'essential question remains whether the treatment was reasonably necessary' (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression 'no reasonable prospect' should be understood, '[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content'."

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

"[57] ...a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.

[58] Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary 'as a result of' the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]-[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716)."

1. The first issue to be considered is whether the treatment which is being sought is needed as a result of the subject work injury.
2. In the applicant's submission the applicant is continuing to suffer from the ongoing effects of the injury which includes resultant deconditioning as well as an accepted psychological injury impacting on the applicant's recovery. Whilst Mr Beran conceded on behalf of the applicant that the applicant had not been the most compliant of patients, it was submitted that the physiotherapy and hydrotherapy treatment is still recommend and reasonably necessary as a result of the work injury.
3. The applicant relies on the opinion of Dr Yuk Kai Lee, orthopaedic surgeon, who has provided a forensic medical report to the applicant dated 10 March 2025. Dr Lee states that the applicant sustained injury to his back, neck and both shoulders at work.
4. The doctor diagnosed a possible cervical spine disc injury however the applicant does not rely on any injury to the cervical spine in the current proceedings. Dr Lee also diagnosed rotator cuff injuries to both shoulders. The doctor provided no diagnosis in respect to the lumbar spine.
5. Whilst Dr Lee diagnosed rotator cuff injuries to both shoulders the rationale for this diagnosis is not explained in circumstances where ultrasounds performed on 15 May 2023 on both shoulders were reported as showing no injury to the rotator cuff in either shoulder. Whilst Dr Lee lists the ultrasound reports among the documents which he reviewed he does not deal with the reported findings of the ultrasounds in any meaningful way in providing his opinion as to diagnosis.
6. Whilst the doctor recommend that the applicant continue with exercise physiology treatment and also recommended hydrotherapy, he provides no insight as to what conditions the treatment would be treating, no reasoning as to how the proposed treatment would work in treating any conditions from which the applicant suffers nor what the benefits of such treatment would be.
7. Dr Lee basis his recommendation that the treatment is reasonably necessary solely on an understanding that the applicant's symptoms had deteriorated since physiotherapy had been stopped in October 2024. However, the doctor records no details of the physiotherapy treatment which the applicant had received other than that he was referred for physiotherapy and that the treatment had stopped in October 2024. The doctor also records no details as to what benefits the applicant obtained from the physiotherapy treatment he had previously had and no details or history as to what changes occurred in the applicant's symptoms and when following the cessation of the treatment.
8. As Dr Lee does not record what the changes were in the applicant's symptoms following the cessation of the physiotherapy we are unable to determine if the alleged change in symptoms only affected one or more of the injured body parts. Also, as the doctor provides no information as to the nature and benefits of the proposed treatment it is unknown whether the doctor is recommending the treatment in respect to just one of the injured body parts or more.
9. The report of Dr Lee is inherently deficient and of little assistance.
10. Whilst it is the applicant's evidence that he continues to have regular back pain which gets worse with activity, that he sometimes gets pain that shoots up his back to his shoulders and that he has shoulder pain every day the applicant gives no evidence as to how his symptoms have changed since the cessation of physiotherapy treatment.
11. The respondent relies on the opinion of Dr Paul Robinson, orthopaedic surgeon, who has provided a forensic report to the respondent dated 30 May 2024, having examined the applicant on 21 May 2024, as well as a supplementary report dated 10 July 2024.
12. Dr Robinson reported that there were multiple examples of abnormal illness behaviour and variability in all movements on clinical examination. In addition to conducting a physical examination of the applicant Dr Robinson also reviewed the reports relating to the radiological investigations which had been undertaken.
13. The reports relating to the radiological investigations, which include an MRI scan of the lumbar spine, record no abnormalities apart from some mild bursitis of both shoulders.
14. Dr Robinson was unable to attribute the symptoms which the applicant complained of to any underlying pathology and is of the opinion that any problems which had developed had resolved. In the doctor's opinion his clinical examination indicated no evidence of continuing problems which could be established as being due to underlying orthopaedic problems.
15. Whilst it is the opinion of Dr Robinson that no treatment, and in particular physiotherapy, is required for the applicant's orthopaedic injuries the doctor does appear to support that physiotherapy is required to build up muscle support stating:

"Physiotherapy is not required apart from building up muscle support and he should have been taught this over a period of the 40 sessions you mention."[1]

1. Dr Robinson is of the opinion that a three-month gym membership would be useful as long as the applicant undertook the exercises.
2. Mr Beran submitted on behalf of the applicant that the opinion of Dr Robinson supports that the applicant has, as a result of his work injury, become deconditioned. I accept this submission.
3. Whilst the applicant had prior to the subject work injury worked performing manual duties Dr Robinson was of the opinion in his report of 30 May 2024 that the applicant could return to work commencing on only three hours per day, three days per week. The doctor was also of the opinion that it would be more appropriate for the applicant to return to work performing data entry or sales work rather than his previous duties as a forklift driver. He also observed that work as a traffic controller would be appropriate noting that such work does not involve excessive bending or lifting. The doctor observed that the applicant's hours of work could be increased as symptoms allowed.
4. In his supplementary report of 10 July 2024 Dr Robinson provides his reasoning in respect to the applicant returning to work on such a restricted basis. Despite being of the opinion that the work injury had resolved, he believed that after such a long period of inactivity, if the applicant returned to work 38 hours per week "this would cause a recurrence of symptoms".[2]
5. Turning to the clinical records. Following the subject injury at work the applicant was referred for physiotherapy and subsequently to an exercise physiologist before again returning to the physiotherapist.
6. On 5 May 2023, Marsha Sarmiento, physiotherapist with Stanhope Physiocare, reported that on assessment the applicant was found to have muscular spasm/tension as well as tenderness in the lower back, tightness in the left shoulder region as well as referred symptoms down the right arm. The physiotherapy to that point had focused on decreasing muscular tension, mobilisation to loosen stiff joints and increase range of motion, advice on pacing strategies and stretches as well as ergonomic and postural advice.
7. The applicant does appear to have at least initially gained some benefit from physiotherapy with Ms Sarmiento reporting on 25 May 2023 that the applicant was continuing to improve with physiotherapy but was however still complaining of intermittent left shoulder and mid-lower back pain.
8. On 20 June 2023 Ms Sarmiento requested approval for further physiotherapy citing as the rationale that the treatment was needed to manage the applicant's symptoms and build up strength and capacity through his core/back to help him as he eases back towards full time hours, and eventually to pre-injury duties. Ms Sarmiento observed that the applicant's pre-injury work required lots of heavy lifting (up to 20kg) so it needed to be ensured that the applicant got sufficient rehabilitation to get him to that stage.
9. Ms Sarmiento again requested approval for further physiotherapy on 8 August 2023 noting that the applicant had reported improvements with physiotherapy in pain levels and tolerance with activities of daily living. However, he was still on decreased hours and was still reporting pain with more repetitive and/or strenuous work.
10. In the opinion of Ms Sarmiento, the applicant required continuing physiotherapy to help manage pain and tension, particularly as he was gradually increasing his hours of work. The physiotherapy would also work on gradually increasing his tolerance and strength through the body to eventually get him back to pre-injury duties.
11. On 22 August 2023 Ms Sarmiento reported that the applicant was continuing to show improvement with physiotherapy, however progress had been slower than expected and the applicant was continuing to complain of pain with repetitive and/or more strenuous activities and with prolonged positions.
12. On 2 September 2023 Ms Sarmiento again requested approval for further physiotherapy noting that whilst the applicant had recently quit his job, he continued to need physiotherapy to help settle symptoms and progress through rehabilitation to help increase his options for alternate work.
13. The applicant was discharged from physiotherapy in November of 2023 subsequently commencing exercise physiology.
14. The applicant initially attended on the exercise physiologist, Nicole Cheung of Sydney West Sports Medicine, on 14 December 2023 with the applicant presenting for opinion and management of lower back musculoskeletal injury and bilateral shoulder bursitis.
15. Ms Cheung when reporting to Dr Abeera Sivapalasingham on 15 December 2023 observed that the applicant presented with very low muscle strength, significant stiffness and reduced range of motion in both shoulders and lower back, poor functional capacity with back pain reported after lifting 5kgs from floor to waist and being unable to complete 6kg cable row. Ms Cheung, consistent with the opinion of Dr Robinson, observed that due to the extended time off work the applicant had likely become very deconditioned.
16. Considering the "significant" limitations with which the applicant presented, which put the applicant below his pre-injury capacity, Ms Cheung estimated that the discharge timeframes from exercise physiology would likely extend to 6-12 months. Liability for the treatment would be declined by the respondent in less than 12 months.
17. On 1 March 2024 Ms Sarmiento again requested approval for further physiotherapy observing that the applicant claimed that he had undertaken around 10 sessions of exercise physiology, however the applicant felt that it was not helping, that he was not getting proper progression and he was still complaining of fluctuating pain.
18. Ms Sarmiento recorded that the applicant wished to restart physiotherapy to help with muscular tension which had worsened but also to do his rehabilitation exercise program. Ms Sarmiento advised that the weekly physiotherapy sessions would focus on some soft tissue work initially with an increasing focus on exercise to ensure proper progression through exercises to achieve the identified goals.
19. The physiotherapy did not go to plan with the applicant not fully engaging with the treatment.
20. On 23 May 2024 Ms Sarmiento noted that it had been difficult to make significant progress with the applicant's recovery due to inconsistencies in physiotherapy sessions (only been booking in once every two to three weeks, or coming to sessions late, or cancelling sessions late), as well as lack of doing much self-exercise outside of his sessions. Ms Sarmiento had discussed with the applicant the importance of being more regular with his physiotherapy as well as his self-exercise.
21. Ms Sarmiento also noted that a gym membership had recently been approved which she hoped would assist with the applicant's consistency and progression. The aim was to push for more self-management.
22. Dr Robinson who had examined the applicant at around this time on 21 May 2024 recorded that the applicant had the gym membership and was waiting for the physiotherapist to inform him of the exercises to be performed.
23. Ms Sarmiento observed on 23 May 2024 that the applicant would benefit from continued progression through exercises to build up strength and significantly that due to the chronic nature of his injury and the development of compensation pain, and compensation movement strategies, he would need close guidance with physiotherapy to ensure he is doing the exercises properly and feeling it in the right muscles, and progressing exercises appropriately.[3]
24. On 31 July 2024 Ms Sarmiento again requested approval for further physiotherapy noting among the applicant's diagnosis pain, muscular tension as well as deconditioning. Significantly Ms Sarmiento also noted among the applicant's current symptoms and signs that the applicant's pain was easily triggered when doing more strenuous activities.
25. Ms Samiento also noted it had still been difficult to see much progress with the applicant's rehabilitation and recovery. Although the physiotherapy session had been more consistent, despite constant encouragement the physiotherapist did not believe the applicant was doing much if any self-exercise. As such it was hard to progress through his strengthening as much, and the applicant was left prone to flaring up often. Whilst the physiotherapist believed the applicant could benefit from continued guidance through his rehabilitation exercise program, whether with a physiotherapist, exercise physiologist or personal trainer, she also believed that the applicant needed to take more ownership of his recovery in order to see substantial progress.
26. In my view the evidence, and in particular the opinion of Dr Robinson, the reports and Allied Health Recovery requests of the physiotherapist as well as the report of the exercise physiologist all support that the need for physiotherapy treatment arises as a result of the work injury. The evidence supports that the applicant is at the very least deconditioned as a result of his work injury and that he is prone to exacerbations with activity. Dr Robinson alludes to the applicant in his deconditioned state as being vulnerable to recurrence of the injury.

1. As noted above Deputy President Roche in Diab considered the types of matters that should be taken into consideration when considering whether a treatment is reasonably necessary. I now turn to a consideration of those factors.
2. In respect to the appropriateness of the treatment Dr Robinson concedes that physiotherapy is appropriate at least in respect to building muscle support. Whilst the doctor observes that the applicant should have been taught how to do this during his previous sessions. The evidence is irrefutable that the applicant was provided with home exercises. However, it is the view of the physiotherapist that the applicant would benefit from continued guidance with his rehabilitation exercise program to ensure he is doing exercises properly and feeling it in the right muscles. The physiotherapist has also assisted the applicant in the past in respect to providing treatment for the applicant's muscular tension and tightness.
3. In my view the physiotherapist, having treated the applicant over an extended period and having attempted to coach and instruct the applicant in the performance of the rehabilitation exercises and who is familiar with the applicant experiencing flare ups, is best placed to provide an opinion in this respect.
4. In my view the evidence supports the appropriateness of the treatment.
5. In respect to alternative treatment Dr Robinson does suggest an exercise program as well as a gym membership. However, the applicant needs a program of exercises to perform and at least part of the physiotherapy treatment, as envisaged by Ms Sarmiento, was to provide close guidance to ensure that the applicant is doing the exercises correctly and progressing exercises appropriately. This in essence appears to be more in the nature of an adjunct to what is being proposed by Dr Robinson than an alternative treatment.
6. In respect to the costs of physiotherapy. The costs are relatively modest.
7. In respect to the potential effectiveness. The reports of the physiotherapist as well as the Allied health recovery requests evidence that physiotherapy has been of benefit. The issue in respect to the effectiveness of the treatment is not in respect to the effectiveness of the treatment but rather the applicant's engagement and commitment to the treatment. However, the alternative to not providing the treatment seems to be to leave the applicant in a deconditioned state which negatively impacts on his ability to return work.
8. Physiotherapy is an accepted form of treatment.
9. In my view the factors weigh in favour of physiotherapy being reasonably necessary.
10. Apart from the opinion of Dr Lee, which is a mere assertion without any reasoning, there is no evidence to support that hydrotherapy is reasonably necessary treatment. The only basis which Dr Lee gives for his opinion in respect to hydrotherapy is that the applicant's condition had deteriorated without treatment, however the applicant has not previously undertaken hydrotherapy. I do not accept the opinion of Dr Lee in respect to hydrotherapy.
11. I find that the applicant has not discharged its onus to prove on the balance of probabilities that hydrotherapy is reasonably necessary treatment as a result of the accepted injury.
12. For the above reasons I find that physiotherapy is reasonably necessary treatment for the accepted injury.