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

1. The applicant underwent a spinal fusion at L5/S1 performed by Dr Mobbs in September 2019. He now claims medical expenses in relation to a further proposed surgical intervention, being an L4/5 endoscopic microdiscectomy, immediately above the site of his previous spinal fusion, to be undertaken by Dr Mobbs.
2. The respondent disputes that there is any causal link between the previous injury and surgery and the proposed necessity for surgery.

1. The applicant seeks a declaratory order for the payment of medical expenses pursuant to s 60(5) in the sum of $26,088.34 for the cost of and incidental to a right L4/5 endoscopic microdiscectomy and a lumbar brace and a bio model. The costings provided by the surgeon, the hospital and the anaesthesist have been provided.[1]
2. The respondent alleges that the applicant did not sustain an injury at L4/5 in the course of his employment as required by s 4 of the Workers Compensation Act 1987 (the 1987 Act); that the applicant has not contracted a disease injury at L4/5 in the course of his employment where his employment was the main contributing factor to the contraction of the disease as required by s 4(b)(i) of the 1987 Act; that the applicant has not sustained an aggravation, acceleration, exacerbation or deterioration at L4/5 where his employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease as required by s 4(b)(ii) of the 1987 Act and the applicant has not sustained an injury at L4/5 where his employment was the substantial contributing factor as required by s 9A of the 1987 Act .

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. Mr Stephen Hickey of counsel, instructed by Mr Patrick Heath of Boyd House solicitors, appeared for the applicant. Mr Ross Hanrahan of counsel, instructed by Mr Glabinceski of Hicksons Lawyers, appeared for the respondent.
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. There was no oral evidence**.**
2. There was no application to adduce oral evidence or to cross examine the applicant or any other witnesses as to any factual dispute before the Personal Injury Commission (Commission).
3. The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute (ARD) and attachments, and

(b) Reply to ARD (Reply) and attachments.

1. The respondent objected to the reports of Dr Dias of 25 September 2020 and Dr Conrad of 27 October 2022 pursuant to Regulation 44. Counsel for the applicant did not dispute the objection.
2. The applicant relied on the balance of medical reports annexed to the ARD, being those of Dr Ralph Mobbs, the proposed treating surgeon, and Dr Gehr, orthopaedic surgeon, Independent Medical Examiner (IME).
3. The applicant had previous surgery, a spinal fusion at L5/S1, in September 2019.
4. The applicant has undergone conservative treatment in the form of inter facet injections and hydrotherapy because he and his treating surgeon were reticent about undergoing further surgery. In a note to Dr Marcus dated 15 April 2021 Dr Mobbs referred to a fall at hydrotherapy, and a number of possible pain generators[2] including a potential non-union at L5/S1.
5. In December 2023 the applicant began to experience severe right leg pain and weakness with a reduced ankle reflex. An MRI showed a disc herniation above the site of his previous fusion.
6. Following an examination of the applicant, Dr Mobbs provided a further report on

10 January 2024[3] dealing with the onset of new symptoms. He stated that the applicant had done well after the intervention performed five years ago. He noted that before Christmas he had developed severe pain down the right leg with weakness of the quadriceps and muscles on dorsiflexion. He had a reduced ankle reflex. He walked with an antalgic gait pattern and favoured his left leg. He stated that the MRI told the story. He had developed a large disc herniation at the level above his previous surgery. He concluded that as this was the adjacent segment above the previous fusion, that the issue was directly related to the previous surgery and it should be seen in that light. Dr Mobbs recommended a right L4/5 endoscopic microdiscectomy. 7. Dr Gehr's was qualified to provide a report by the applicant's solicitors. Dr Gehr was provided with 20 medical reports, eight scans and X-ray reports and three reports from the insurer's IME Dr Anthony Smith. He provided a report dated 3 October 2024.[4] Dr Gehr concluded that;

"It is my opinion that as per the history and physical examination and documents notes of his treating surgeon he does require an L4/5 endoscopic microdiscectomy. This surgery is closely related to his injuries which he sustained on 21 August 2019, which is further history today was an aggravation of the injury that occurred in 2018.

such treatment is reasonable and necessary given that he had successful fusion. However, he has now developed a disc rupture above the level of the fusion."

1. The applicant's counsel submitted that the applicant's previous accident and the consequent prior fusion are substantial contributors to the need for the further surgery proposed and sought declaratory orders for the costs of and incidental to the proposed surgery.

1. The respondent has admitted liability for the applicant's injury and has paid compensation to date. It concedes that the applicant is of high needs. However, it does not concede any causative link arising from his injury, or his previous surgery, to the surgery proposed by

Dr Mobbs. 2. Dr Anthony Smith, an IME who saw the applicant for the insurer, reviewed an MRI report dated 28 December 2023 and stated:

"There is multilevel spondylolisthesis with 1O mm of retrolisthesis of L2 on L3 and L3 on L4, and 6 mm of anterolisthesis of LS on S1. There is an anterior spinal fusion at L5-S1 and multilevel Schmorl's nodes. There is multilevel loss of intervertebral disc space and disc desiccation. At L4-5, there is a posterior disc bulge/extrusion, with this material seen posteriorly in relation to the L4 body. There is some right paraspinal canal narrowing contacting the descending right L4 nerve root. There are bilateral disc osteophytes complexes, with moderate bilateral outlets foraminal narrowing impinging the L4 nerve roots. An L5-S1 anterior fusion is noted.

There is multilevel spondylolisthesis with 1 O mm of retrolisthesis of L2 on L3 and L3 on L4, and 6 mm of anterolisthesis of LS on S1. There is an anterior spinal fusion at L5-S1 and multilevel Schmorl's nodes. There is multilevel loss of intervertebral disc space and disc desiccation. At L4-5, there is a posterior disc bulge/extrusion, with this material seen posteriorly in relation to the L4 body. There is some right paraspinal canal narrowing contacting the descending right L4 nerve root. There are bilateral disc osteophytes complexes, with moderate bilateral outlets foraminal narrowing impinging the L4 nerve roots. An L5-S1 anterior fusion is noted."

1. Dr Smith concluded that whilst the surgery proposed by Dr Mobbs might be indicated, the pathology was unclear. He concluded that the applicant's condition is a result of his underlining degenerative disease superimposed on Schuermamm's disease and not any incident that occurred in 2019.
2. Counsel for the respondent referred to the MRI report relied upon by Dr Mobbs for his diagnosis as a hearsay report. He submitted that I cannot rely upon it in determining the issues before me because it is not before me.
3. The respondent submits that Dr Mobbs does not explain the basis for his belief that the need for the proposed surgery is directly related to the previous surgery. He does not say why this is so. There is an insufficient explanation for any causative link and there are no specific circumstances particularised by the applicant, or Dr Mobbs, regarding the worsening of the applicant's condition. Dr Mobb's opinion should therefore be rejected.
4. The respondent submits that the surgery is speculative as to success and that there have been insufficient appropriate investigations and explanations.

1. I reject the specious submission of the respondent that the MRI report reviewed, commented on and relied upon by Dr Mobbs cannot be relied upon by me to determine this application because it is a hearsay report.
2. Dr Mobbs reviewed the MRI report. The extrusion at L4/5 is said to be clear. He drew conclusions regarding the MRI as set out in his report. It is open to me to rely upon his review and conclusions in that regard as the treating specialist surgeon and I do so.
3. I accept the opinion of Dr Mobbs. I am satisfied and find that the applicant's previous injury and subsequent surgery was a substantial contributing factor, as contemplated by s 9A of the 1987 Act, to the deterioration of the applicant's adjacent spinal segment and the consequent need for surgery as identified by Dr Mobbs.

1. For the reasons set out above I will make the findings and orders as set out on page 1 of the Certificate of Determination.