7 September 2023. Liability for the injury was accepted by the respondent's insurer. 2. On 2 July 2024, orthopaedic surgeon, Dr Brian Hsu wrote to the insurer requesting approval for the applicant to undergo a two stage L5-S1 Anterior Lumbar Interbody Fusion and L5-S1 Posterior Decompression and Fusion surgery. 3. Liability for the surgery was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on

15 November 2024. That decision was maintained following internal review on 7 May 2025. 4. The applicant commenced the current proceedings in the Personal Injury Commission (Commission) on 23 May 2025. The applicant seeks compensation under s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the costs of and incidental to the proposed surgery.

1. The parties agree that the following issue remains in dispute:

(a) whether the proposed surgery is reasonably necessary as a result of the injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. The parties appeared before the Commission via Microsoft Teams on 4 August 2025. The applicant was represented by Mr Graham Barter of counsel, instructed by Mr Digby Dunn. The respondent was represented by Ms Nicole Compton of counsel, instructed by Mr Dane Twohill. A representative from the insurer was also present.
2. 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, and

(b) Reply and all attachments.

1. Neither party applied to adduce oral evidence or cross-examine any witness.

1. The applicant's evidence is set out in a written statement made by him on 23 May 2025.
2. The applicant said the injury on 7 September 2023 occurred while he was separating bundles of aluminium. The applicant was bending over at an angle and pulled and lifted three bundles of aluminium when he experienced a terrible pain in his back. The applicant knew he had injured his back badly.
3. Later the applicant recalled that three days earlier while unpacking aluminium parts he had been lifting and carrying a 6.5m length of aluminium. As he was walking carrying this item, he overbalanced and began to fall. The applicant put tremendous stress through his back trying to prevent the aluminium from falling and crashing down on a work mate.

1. The report of a CT scan of the applicant's lumbar spine performed on 18 September 2023, noted bilateral L5 pars defects associated with grade 1 anterolisthesis of L5 over S1. There were no signs of significant effacement of the exiting nerve roots. Facet joint arthropathy was noted throughout the lumbar spine.
2. On 19 December 2023, general practitioner, Dr Jamie Fernando wrote a letter of referral to orthopaedic surgeon, Dr Brian Hsu, which stated:

"Thank you for seeing Andrew Clarke, aged 50 yrs, Warehouse storeperson/relief truck driver, for review of his persisting injury separating heavy aluminium at work on 7 Sept 2023, and ongoing management lower back pain since recommendations. Bilateral L5 pars defects. Lower back pain with intermittent referral Rt leg to ankle and Lt leg to above knees. He has had regular physio with initial improvement, however this has plateaued more recently."

1. On 27 January 2024, Dr Hsu wrote to Dr Fernando enclosing a detailed clinical note from a recent consultation. The clinical note recorded:

"Mr Clarke is a very pleasant 51 year old gentleman who has been experiencing significant back pain and right leg pain. Back pain is mainly in the lower lumbar region slightly to the right side. He has been experiencing back pain after work related injury from September 2023. His non-operative treatment has included bed rest, pool therapy, physiotherapy, medication and hot packs. Back pain is rated 7/10 in severity and leg pain is 6/10 in severity."

1. The applicant was noted to be taking Celebrex. No spinal tenderness was demonstrated on palpation. There was a decreased range of motion of the lumbar spine in forward flexion and extension due to exacerbation of back pain. Sensory examination of the lower limbs showed intact sensation to light touch from L2 to S1 bilaterally. Dr Hsu said he had seen an MRI scan of the lower lumbar spine demonstrating lumbar intervertebral disc disease with mild to moderate loss of disc height and foraminal narrowing. Dr Hsu said he had arranged for the applicant to undergo a bone scan to better delineate the pathology.
2. The report of a bone scan performed on 16 February 2024 said the scan did not demonstrate focal increased activity in the lumbar spine. There were no features of active arthritis, occult fracture or osteoblastic deposits.
3. On 2 July 2024, Dr Hsu forwarded to the insurer quotes for a two-part surgery. Stage 1 of the surgery proposed was an L5 - S1 anterior lumbar interbody fusion at a total cost of $7,194. The second stage of the surgery was an L5 - S1 decompression and fusion with a total fee of $11,607.
4. Quotes were also provided from Dr Mayo Theivendran, a vascular surgeon, for various items including, an initial consultation report, duplex scanning and involvement in the first stage of surgery.
5. On 29 October 2024, Dr Hsu responded to correspondence from the insurer asking him to comment on a report by the insurer's independent medical expert, Dr Anthony Smith, recommending an alternative treatment. Dr Hsu sated:

"Mr Clarke has trialled a lumbar injection which did not provide him with any relief, and he continues to experience significant symptoms. Surgery is now reasonably necessary."

1. Dr Fernando issued a SIRA certificate of capacity on 4 November 2024 which stated that the applicant was first seen in relation to the injury on 12 September 2023. The certificate described a lower back injury and bilateral L5 pars defect. The certificate described the management of the injury as follows:

imaging - CT lumbar spine, MRI L spine - 22/ 1 /2024

ortho 10/3, psychologist 24/2/2024, psychiatrist 13/3, independant medical assessment 19/3

awaiting otrthopaedic specialist correspondance - ? planning surgery - has follow up review 29/6

- awaiting spinal fusion surgery/vascular surgeon part of surgery team"

1. The certificate certified the applicant as having capacity to engage in suitable employment for 12 hours per week subject to restrictions.
2. On 23 April 2025, Dr Hsu prepared a report for the applicant's solicitor. Dr Hsu stated that he had seen the applicant on 27 January 2024, 8 March 2024, 2 June 2024, 29 June 2024,

8 December 2024 and 12 January 2025. Dr Hsu summarised those consultations as follows:

"Mr Clarke reported significant back and leg pain from lumbar intervertebral disc disease. He underwent an L5-S1 epidural steroid injection which only gave him short-term relief and I have recommended surgical intervention in the form of an L5-S1 anterior and posterior fusion."

1. Dr Hsu said he was unaware of any pre-existing injuries, conditions or predisposing factors prior to the work injury. Dr Hsu opined that the injury was the substantial contributing factor to the condition and the need for surgical intervention. Asked to comment on the opinions of

"I disagree with Dr Smith's opinion that the structural variation at L5-S1 is not producing any symptoms. Mr Clarke reports significant back and leg symptoms as a result of the intervertebral disc pathology."

1. The respondent relies on medicolegal reports prepared by orthopaedic surgeon, Dr Anthony Smith, dated 6 August 2024, 23 August 2024 and 5 November 2024.
2. In his first report, Dr Smith took a history of the injury that was broadly consistent with the other evidence. It was noted that following the injury the applicant returned to work in suitable duties but was put off work once again for psychological reasons due to difficulties with his supervisor.
3. Dr Smith described the images and report of a lumbar CAT scan on 18 September 2023.

Dr Smith noted that the report of an MRI was not available although he was able to see MRI images undertaken on 22 January 2024, described as follows:

"I was able to see an MRI image of his lumbar spine undertaken on 22 January 2024. There is a slight reduction in the lumbar lordosis. There is disc height loss at L5-S1, with a small annular bulge. There is minimal forward slipping of L5 on S1. All the disc spaces are somewhat narrow and dehydrated. The best preserved disc is at L4-5. The endplates undulate. There is facet joint arthritis at every level. There is some mild narrowing of the outlet canal at L5-S1."

1. Dr Smith also described the report of a bone scan taken on 16 February 2024.
2. Dr Smith also mentioned letters from an injury management consultant Dr Skapinker, dated 22 March 2024, and correspondence from Dr Hsu recommending surgery. There was also a letter from Dr Hsu to vascular surgeon, Dr Theivendran, arranging assistance with the proposed anterior fusion operation.
3. Dr Smith was asked to give a diagnosis of the injury which he described as follows:

"The diagnosis is aggravation to lumbar degenerative disease. In my opinion, the spondylolisthesis and pars defects at L5-S1 are not the cause of any symptoms."

1. Dr Smith agreed that the applicant's activities on 7 September 2023 were a substantial contributing factor to an aggravation of the applicant's previously, relatively asymptomatic lumbar degenerative disease. Dr Smith stated, however:

"The pars defects in L5 bilaterally and the subsequent spondylolisthesis are familial inherited and long predate 2023. They are not responsible, in my opinion, for any symptoms."

1. Dr Smith gave the opinion that the applicant had not been adequately treated non-operatively:

"In my opinion, he has not been adequately treated nonoperatively. In my opinion, an operation is not indicated. He has had an epidural injection. That is unlikely to produce any worthwhile benefits, and it did not.

Disregarding his treatment to date, he should have had manipulative physiotherapy and traction three times a week, for two to three weeks, augmented with an effective anti-inflammatory medication. Voltaren works better than anything else. 90% of the population can take this medication without side effects. He would have required 1 mg per kilogram twice a day, for three or four weeks, beginning with physiotherapy.

Injections into the facet joints on the symptomatic side at L4-5 and L5-S1 would be the appropriate guided injections. 90 to 95% of all low back problems emanate from pathology at L4-5 and L5-S1, no matter what the x-rays look like. Such guided injections have some 7 chances out of 10 of providing worthwhile benefit.

In my opinion, there is a very good chance he could return to normal work if he were appropriately treated nonoperatively."

1. Dr Smith was asked to comment on whether the proposed surgery was reasonably necessary for the applicant's work-related condition. Dr Smith responded:

"The operation of anterior spinal fusion dates back to 1928/1930. There was a paper published by Percival in the Annals of Surgery in 1930, outlining an L5- S1 anterior body fusion on the 26- year-old man with a spondylolisthesis at L5- S1. The operation performed along the lines recommended by Percival has the effect that 95% of the time, fusion can be seen to occur in follow-up x-rays. In his age group, one would do L4-5 and L5-S1. It is not necessary to do a posterior procedure. The advent of cages and the non-removal of the endplates has led to a significant increment of non-union in anterior interbody fusion."

1. Dr Smith said an alternative surgical treatment included:

"An alternative surgical method is to fuse L4-5 and L5-S1 with a posterolateral approach, with pedicle screw fixation, taking autogenous bone graft. That method of treatment has a 10% failure rate."

1. Dr Smith considered the applicant should be able to work in an unrestricted capacity.
2. In his second report, Dr Smith was asked to clarify whether the proposed physiotherapy treatment mentioned in his first report or one of the spinal surgeries mentioned in that report was to be preferred. Dr Smith responded:

"I refer to my letter of 6 August 2024. In my opinion, the pathology seen at L5-S1 is a structural variation, and dates back years, and is not producing any symptoms. No operation is required on his lumbar spine. He might have lumbar degenerative disease. That occurs with or without pars defects, and with or without spondylolisthesis. Symptoms from lumbar degenerative disease generally emanate from pathology at L4-5 and L5-S1 in combination. Injecting the facet joints at L4-5 and L5-S1 on the painful side would be an appropriate treatment. Operation is not appropriate."

1. In his final report, Dr Smith was asked to comment on a statement from Dr Hsu dated

"It is my opinion that the structural variation at L5-S1 is not producing any symptoms. There is, in my opinion, no indication to do an operation on L5-S1."

1. The applicant submitted that there was no dispute that the particular surgery proposed was an appropriate form of treatment although there was a dispute regarding whether it was appropriate in the circumstances of this case. The applicant submitted that if the Commission accepted that surgery was required, it would accept that the particular surgery proposed was appropriate.
2. The applicant referred the Commission to the letter of referral to Dr Hsu and the reference in that document to symptoms and treatment through regular physiotherapy.
3. Although Dr Hsu was not a medicolegal expert, as a treating doctor he had seen the applicant on many occasions. That placed Dr Hsu in a different position to Dr Smith.
4. The applicant submitted that the principles in Diab v NRMA Ltd,[1] were well-established. The question was whether the applicant should be denied the treatment.
5. The applicant observed that Dr Hsu provided his justification for the surgery in his letter to the applicant's solicitor. Dr Hsu had seen the applicant on six occasions. The applicant had attempted alternative treatment including an epidural steroid injection.
6. While it was not controversial that there was degenerative change at the applicant's lumbar spine, it was asymptomatic prior to injury and has been persistently symptomatic since the injury. The applicant submitted that the Commission would have no difficulty finding that the applicant's complaints resulted from the injury.
7. After observing the applicant over period of time, Dr Hsu finally determined that surgery appropriate. The applicant submitted that there couldn't be a clearer case. Dr Hsu had not rushed to surgery but had eventually concluded that a form of surgery was now reasonably necessary.
8. The applicant submitted that Dr Smith, with no apparent reasoning, simply stated that the symptoms did not result from the injury suffered.
9. The applicant said the Commission would have no hesitation in accepting the applicant's case.

1. The respondent submitted that it may well be that the applicant required surgery, but the question was whether, on the evidence, the Commission could be satisfied that the surgery was currently reasonably necessary.
2. The respondent submitted that no explanation had been provided as to what the proposed surgery would correct or alleviate.
3. The only description of the injury was that set out in the report of Dr Smith, being an aggravation of lumbar degenerative disease. No opinion had been provided saying that the surgery was required to treat an aggravation of the degenerative disease.
4. The evidence from Dr Hsu was limited. After his initial consultation. Dr Hsu recommended a bone scan. No information was available as to what happened in the subsequent consultations. No opinion had been provided on what the scans showed and what was to be treated by the surgery. Nowhere had Dr Hsu identified the pain generator or given a diagnosis of the work-related injury.
5. Dr Smith had reviewed the scans. There was a lumbar spine CT scan on 18 September 2023 which showed annular disc bulging at every level. There were also bilateral pars defects and Grade I forward slipping of L5 on S1.
6. There appeared to be reports from Dr Hsu before Dr Smith which were not before the Commission, including correspondence to a vascular surgeon, Dr Theivendran, arranging assistance with the proposed anterior fusion operation. It was not clear why Dr Theivendran's assistance was being sought.
7. Dr Smith gave the opinion that the spondylolisthesis and pars defects at L5-S1 were not the cause of any symptoms. Dr Smith said the injury was an aggravation of degenerative pathology.
8. It remained unclear whether Dr Hsu proposed to treat the pars defects or other pathology. It was unclear why Dr Hsu proposed surgery at L5-S1 when there was widespread degenerative disease in the lumbar spine.
9. The respondent submitted that it would not be appropriate to make findings based on inference alone.
10. The respondent observed that Dr Smith had given the opinion that it was not necessary to do a posterior procedure. An alternative surgical method was to fuse L4-5 and L5-S1 with a posterolateral approach, with pedicle screw fixation, taking autogenous bone graft. That method of treatment was said to have a 10% failure rate.
11. Other forms of treatment were also identified. Dr Smith said injecting the facet joints at L4-5 and L5-S1 on the painful side would be an appropriate treatment.
12. Dr Smith concluded that an operation was not appropriate.
13. Although Dr Hsu said the applicant had trialled a lumbar injection which did not provide him with any relief, the Commission had to consider whether alternative treatments were available. Dr Hsu did not respond to Dr Smith's suggestions, other than to simply express disagreement.
14. The respondent observed that the Commission did not have before it a full copy of any clinical notes. There was no evidence regarding the conservative treatments undertaken. The applicant's statement gave no evidence as to the treatments previously trialled or their results. It remained unclear why those treatments were not considered suitable or successful.
15. The respondent noted that no evidence had been given as to the potential effectiveness of the treatment. No information had been provided regarding failure rates. The cost of the treatment was significant. It had not been explained why a two-stage approach was preferred. The relationship between the particular treatment and the work injury had not been explained.
16. The evidence from Dr Hsu only vaguely described the applicant's symptoms. There was a recommendation for surgery on 2 July 2024. No details had been provided regarding the results of the epidural injection. There was inconsistent reporting as to whether that injection had provided no benefit or short-term relief.
17. The respondent submitted that there were significant holes in the evidence. The respondent said it would have been simple to gather the required evidence. No medicolegal opinion for the applicant had been sought. There was insufficient evidence for the Commission to be comfortably satisfied that the surgery was reasonably necessary as a result of the injury.

1. With regard to the involvement of Dr Theivendren, the applicant submitted that the Commission could make findings that the surgery was reasonably necessary. Further details could be provided to the insurer with regard to what was required, including the involvement of a vascular surgeon.
2. The applicant submitted that the kind of detail proposed by respondent was not necessary. The Commission was not in the place of a surgeon. The specific details of how the surgery was to be performed, what assistance was required, and whether a vascular surgeon should attend were irrelevant to the Commission's task.
3. What was required was a general assessment as to whether the applicant should be denied the relief proposed.
4. The applicant noted that Dr Smith had also taken a history of the treatment to date including physiotherapy, exercise physiology and psychological treatment.
5. There was no suggestion of exaggeration or that the applicant was not suffering symptoms. It was clear that the intended effect of the surgery was to provide relief from the applicant's pain.
6. The applicant submitted that the Commission would not read much into the apparent inconsistency in the evidence regarding the effect of the epidural injection.
7. It was now 12 months since the surgery was proposed. For nearly two years the applicant had been suffering from back and leg pain. The Commission ought to correct the denial of liability in relation to the surgery.

1. Section 60 of the 1987 Act relevantly provides:

"(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

(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)."

1. What constitutes reasonably necessary treatment was considered in the context of s 10 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[2] where Burke CCJ stated:

"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. In Diab v NRMA Ltd,[3] Roche DP provided a summary of the relevant principles as follows:

"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'."[4]

1. There is no dispute in these proceedings that the applicant sustained an injury to his lumbar spine on 7 September 2023, which remains symptomatic.
2. The respondent's medicolegal expert, Dr Smith, diagnosed the injury as an aggravation of degenerative disease at the lumbar spine.
3. Dr Smith had regard to a lumbar spine CT scan, dated 18 September 2023, performed shortly after the injury, which identified shallow annular disc bulges at all levels of the lumbar spine. Mild bilateral facet arthropathy was noted at L3-L4 and L1-L2. At L5 there were bilateral pars defects with marginal (Grade 1) anterolisthesis of L5 over S1.
4. The report of a bone scan performed on 16 February 2024 did not identify any relevant findings at the lumbar spine.
5. The applicant has also undergone an MRI scan although the report of that scan is not in the evidence before the Commission. There is description of what was shown on the MRI scans in Dr Smith's first report. Dr Smith said the MRI scans showed disc height loss at L5-S1, with a small annular bulge. There was minimal forward slipping of L5 on S1. All the disc spaces were somewhat narrow and dehydrated. There was facet joint arthritis at every level. There was some mild narrowing of the outlet canal at L5-S1.
6. Having taken an accurate history, conducted his own examination of the applicant and considered the radiological evidence, Dr Smith expressed the view that the pars defects at L5 and the spondylolisthesis were familial inherited pathologies which long predated the injury in 2023. Dr Smith did not consider that that structural pathology was responsible for any symptoms, although he agreed there was an aggravation of lumbar degenerative disease which had prior to the injury been asymptomatic.
7. The applicant's evidence gives little further insight as to the nature of the work injury.
8. Dr Fernando's referral to Dr Hsu described ongoing lower back pain since the event on

7 September 2023 with intermittent referred pain into both legs. The applicant had initially improved with physiotherapy although this had plateaued. Dr Fernando attached the CT scan and noted the presence of bilateral L5 pars defects. 9. Dr Hsu saw the applicant on 27 January 2024 and his clinical note of that consultation also referred to significant back pain and right leg pain since the injury in September 2023. Dr Hsu said he had seen the MRI scans which demonstrated intervertebral disc disease with mild to moderate loss of disc height and foraminal narrowing. No indication was given as to the particular levels affected. At that stage, Dr Hsu recommended that a bone scan be performed to better delineate the pathology. As noted above, the bone scan did not appear to demonstrate any relevant findings. 10. In the materials before the Commission there are no other clinical records or correspondence from Dr Hsu until the request for approval for a two-part surgery at L5-S1, apparently with the involvement of a vascular surgeon, Dr Theivendran, on 2 July 2024. 11. It is evident that the applicant did return to see Dr Hsu on three further occasions before the recommendation for surgery was given and on a number of subsequent occasions. What was discussed in those consultations, including Dr Hsu's view as to the symptomatic pathology, and any recommendations for non-operative treatment, is simply unknown. 12. In a report for the insurer on 29 October 2024, Dr Hsu said the applicant had undergone a lumbar injection which did not provide him with any relief. That injection was further described in the report for the applicant's solicitor dated 23 April 2025. On that occasion,

Dr Hsu said that the applicant underwent an L5-S1 epidural steroid injection which provided short-term relief. 13. Dr Hsu's responses suggest that the surgery was recommended after the epidural injection. As the parties have noted, however, there is some inconsistency in the reporting as to the effect of the epidural injection. Dr Smith commented that that an epidural injection was unlikely to produce any benefits and did not. 14. As the respondent's submissions observe, there are significant gaps in the applicant's evidence. 15. It remains unclear what Dr Hsu's opinion is as to the nature of the work injury and the pathology involved. No reasoned response has been given to Dr Smith's opinion that the pars defects and spondylolisthesis at L5-S1 pre-dated the injury and were not producing symptoms. Dr Hsu has simply expressed disagreement with that view without explaining why. The radiological investigations do show other pathology at L5-S1 but also at every other level of the lumbar spine. It is clear that the surgery proposed by Dr Hsu is directed at L5-S1, however, there is simply no explanation as to why surgery at that level has been proposed or how the surgery relates to the particular work injury on 7 September 2023. 16. Doubt has also been cast on the appropriateness of the particular surgical procedure proposed by Dr Hsu. Dr Hsu has sought approval for a two-stage anterior and posterior procedure, with the apparent involvement of a vascular surgeon during the anterior stage. Dr Smith has suggested that the posterior procedure was not necessary. Dr Smith also suggested that a procedure at both L4-5 and L5-S1 and a posterolateral approach could be considered. No response to those opinions is before the Commission, nor has there been any explanation or justification for the particular procedure recommended. 17. Dr Smith's primary position is that the applicant has not undergone appropriate non-operative treatment. I am prepared to accept on the limited material before me that the applicant has attempted a range of conservative treatment modalities. According to Dr Hsu's initial clinical note, this included bedrest, pool therapy, physiotherapy, medication and hot packs. There is also reference in the materials to exercise physiology and psychological treatment. There is, however, no evidence with regard to the nature, extent or duration of the trials of these treatments or their effects. 18. There is some indication in the referral from Dr Fernando that there was initial improvement with regular physiotherapy although this had plateaued. The applicant had at some point been certified fit to return to suitable duties at work although this appears to have been curtailed due to the onset of psychological symptoms. 19. Dr Smith has recommended some specific non-operative treatments, including facet joint injections at L4-5 and L5-S1. Dr Smith also recommended the use of anti-inflammatory medications such as Voltaren and intensive manipulative physiotherapy and traction. No response to those recommendations has been provided. 20. It is the applicant's onus to establish on the balance of probabilities that the surgical procedure proposed is reasonably necessary as a result of the work injury. The cases referred to above require the Commission to consider matters such as the appropriateness of the particular treatment, the availability of alternative treatments and their potential effectiveness, the actual or potential effectiveness of the particular treatment proposed, the views of other medical experts and the cost of the treatment. 21. On the evidence that has been presented to the Commission in these proceedings, I am not satisfied, at the current time, that the particular procedure proposed by Dr Hsu is an appropriate form of treatment for the applicant's work injury. There appear to be alternative, potentially effective and less costly treatments available. It remains unclear what the potential effectiveness of the treatment proposed would be. The only expert opinion before the Commission, other than Dr Hsu's, suggests that the treatment proposed is not appropriate. Other than Dr Hsu's bare assertion that the surgery is appropriate, Dr Smith's opinions are largely unchallenged. 22. For all the reasons above, I am not satisfied that the applicant has discharged his onus. I am not satisfied that the surgery proposed by Dr Hsu is, at the present time, reasonably necessary as a result of the injury on 7 September 2023.

[1] [2014] NSWWCCPD 72.

[2] [1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose).

[3] [2014] NSWWCCPD 72.