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

1. The applicant, a 53 year old man, seeks declaratory orders for the payment of his medical expenses, being fees for a past consultation and future fees[1] for a proposed surgery, a coccyx excision or coccygectomy, and fees incidental to that surgery, to treat coccydynia which it is alleged has arisen from his previous injury on 23 July 2018 and consequent lumbar spinal surgeries.
2. The respondent disputes any causative link between the applicant's previous injury and lumbar surgeries, for which liability was accepted, the need for a coccyx excision or coccygectomy or the applicant's erectile dysfunction.
3. The applicant seeks declaratory orders for the payment of his future medical expenses for the treatment for both his coccydynia and erectile dysfunction.

1. The applicant claims that his erectile dysfunction and coccydynia were caused by or materially contributed to by his previous injury on 18 July 2018 and his consequent lumbar spinal surgeries.
2. The respondent denies liability on the basis that there is no causative link between his injury on 18 July 2018 and lumbar surgeries and either his erectile dysfunction or the coccydynia suffered by the applicant.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. Mr Stephen Hickey of counsel, instructed by Paul A Curtis and Co, solicitors, appeared for the applicant. Mr Ty Hickey of counsel, instructed by Hicksons Hunt and Hunt, solicitors, 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 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 applicant relied on the reports of Dr Korbal, urologist, in support of the alleged causative link between the applicant's previous anterior approach lumbar spinal surgery and the applicant's erectile dysfunction and Dr Nair, spinal surgeon, in support of the applicant's need for a coccygectomy.

1. Dr Korbal, urologist, was provided with and considered a very large number of medical reports and clinical notes. He provided the following opinion regarding this issue in his report of 5 July 2023:[2]

"He complains of erectile dysfunction which he tells me started after his anterior spinal surgery. He is able to get an erection when standing and can penetrate when standing; however, if he lies down to have intercourse, he loses the erection. This is suggestive of a vascular problem with damage to the valves in the venous system which allows the erection to get lost. He tells me that all his erection problems occurred following his anterior surgery.

Pain in his back causes him to lose his erection as well.

Mr Erkekasian's erectile dysfunction is consequent to his combined anterior - posterior spinal surgery. It appears that he may well have damage to the parasympathetic nervous plexus which is a common problem following this type of surgery. He also does get erections which he loses and this may indicate damage to the venous drainage system from the penis which would be consequent on his surgery.

I feel that this gentleman should be seen by a treating urologist to further assess his erectile problems. A trial of Caverject Impulse may work and if this is successful, he could use this.

... it appears that he is losing his erection due to the possible venous outflow problems and a treating urologist would be able to assess this.

...I have noted that he has mild to moderate neurogenic pain and sensory alteration in the distribution of three nerves - the left genitofemoral nerve, the left ilioinguinal nerve and the left illiohypogastric nerve. These appear to be related to his anterior approach surgery."

1. Dr Korbel provided a further report dated 21 December 2023.[3] Dr Korbel had the benefit of considering the report of Dr David Gorman dated 27 September 2022, a report provided by the respondent. Dr Korbel's report was provided after the respondent had maintained its decision to decline the applicant's claim to have suffered erectile dysfunction as a consequence of his work injury on 23 July 2018, and the resultant spinal surgery. The respondent had also declined the suggested trial of Caverject Impulse. Dr Korbel stated:

"Thank you for asking me to provide a short supplementary report dealing with the insurer's complaint that I have not provided a clear and determinative opinion that the previous surgery materially contributed to your clients erectile dysfunction (ED). In my opinion, on the balance of probabilities, the anterior approach spinal surgery carried out on 23 September 2019 is a substantial contributing factor to the ED."

1. Dr Korbel referred to the applicant's non-insulin-dependent diabetes myelitis which he stated was well controlled by medication. He referred to the applicant's history that he had not had ED prior to the surgery. He said:

"Anterior approach spinal surgery has a known complication of ED related to damage to the parasympathetic nervous plexus at the time of surgery.

I also suggested possible damage to the venous drainage system from the penis consequent to his surgery."

1. Dr Korbel commented on the report of Dr Gorman wherein he considered the NIDDM to be a possible contributing factor to the erectile dysfunction. He said that Dr Gorman:

"... did not note that ED is a recognized complication of anterior approach spinal surgery". He also noted that "Dr Gorman on page 6 of his report commented on sensory changes in the right L4 distribution but no motor changes and no reflex changes. This confirms my finding of mild-to-moderate neurogenic pain and sensory alteration in the distribution of the three nerves assessed in my report."

1. Consideration of Dr Gorman's report did not alter Dr Korbel's opinion that, on the balance of probability, the applicant's anterior approach spinal surgery had materially contributed to his erectile dysfunction.
2. The applicant's general practitioner also supported the causal link between the applicant's erectile dysfunction and his surgery.[4]
3. The applicant was referred to Dr Patel[5] in relation to sexual difficulties after mentioning the issue to Dr Kbar on 10 December 2022. On 9 January 2023 Dr Kbar noted that the applicant was concerned that his erectile dysfunction had developed following his spinal surgery.

1. Dr Nair, the applicant's treating spinal surgeon, provided a number of reports concerning the applicant's coccydynia and the proposed the proposed coccygectomy.
2. On 11 May 2023[6] Dr Nair advised Dr Kbar that he had discussed the applicant's symptoms with a Dr Weiss. He advised as follows: "We agree that the best way forward is to investigate the cause of his coccygeal pain with a bone scan and MRI. I will take the necessary steps to organise this and keep you informed."
3. On 9 August 2023 Dr Nair reported to Dr Kbar as follows:

"I reviewed Mr Erkekaslan clinically. He is approximately four months laminotomy and insertion of spinal cord stimulator. He is improved and walking very well. He is weaning his medications. His main issue is he's coccydynia as well as constipation following his work-related injury. I will initiate a referral to a colorectal surgeon for assessment. I will review him with repeat medical imaging in about three months time."

1. On 6 March 2024[7] Dr Nair reported to Dr Kbar that the applicant was experiencing worsening coccygeal pain provoked by sitting. He advised that he thought it was worthwhile to attempt a coccygeal injection to narrow down and identify the pain generator.
2. On 20 March 2024[8] Dr Nair again reported that the pain around the applicant's coccyx was the most significant limitation that he was suffering.
3. On 10 April 2024[9] Dr Nair provided a report[10] as follows:

"I performed a clinical and radiological assessment of Mr Erkekaslan. He remains troubled by coccydynia. I have counselled him about risks of diagnostic blocks including but, residual pain, the risk of spinal surgery, neurological injury resulting in loss of function, haematoma, and infection. He will deliberate the information provided."

1. Dr Nair then referred the applicant to Dr Gan, pain specialist, for an opinion.
2. On 12 June 2024[11] Dr Nair reported to Dr Kbar as follows:

"I reviewed Mr Erkekaslan clinically. The blocks have improved symptoms dramatically for a few weeks. We have thus corroborated the pain in generator. I have advised him that options would be repeat blocks that he could have 2 to 3 times a year. Definite treatment would be a coccygectomy. I've counselled him about risks including residual pain as well as infection. He indicated that he is keen to proceed and asked me to make a representation to the insurer."

1. On the same date Dr Nair requested funding to perform the coccygectomy.[12] He said:

"In view of a permanent and anatomical aggravation as evidenced by objective papo- anatomy, it is my view as a reconstructive spinal surgeon that this aggravation can only be rectified surgically as such request funding for surgery."

1. The clinical notes of Dr Kbar[13] support the history of recurring pain suffered by the applicant in his back and legs.
2. Counsel for the applicant submitted that the applicant has exhausted all reasonable alternatives and that the proposed surgery is both necessary and reasonable.
3. In addition to various treatments for his pain including surgery, steroid blocks with anaesthesia and a nerve stimulator, the applicant underwent gastric sleeve surgery and reduced his weight by more than 35kg.

1. Dr Gorman (IMA), a general medicine, medical oncology and pain medicine specialist, provided a report[14] to the insurer dated 27 September 2022. In addition to workers compensation certificates, he considered reports of Dr Perotti, Dr Vote, Dr Ho, Dr Nair and Dr Yeoh. In relation to erectile dysfunction Dr Gorman said:

"He also has diabetes mellitus unrelated to his injury but causing some sensory changes, increased risk of infection as well as possibly contributing to erectile dysfunction."

1. Dr Katelaris, neurologist, provided a report[15] to the insurer on 10 November 2023.

Dr Katelaris concluded that as there was no current bladder and bowel dysfunction, since spinal nerve supply to the bladder, bowel and sexual function are common, that there was no neuropathic erectile dysfunction. He said:

"Mr Erkekaslan is not objectively organically sexually impaired as a result of his accident in 2018. He is able to initiate and maintain erections sufficient for sexual intercourse in the upright position. His claim that he can only have sex standing up is a purely subjective claim that cannot be objectively verified or quantified. It is a matter of whether or not he is to be believed. From my observations of his general mobility it would be my opinion that he is more likely than not able to have sexual intercourse whilst in the horizontal position."

1. In his report of 25 September 2023[16] Dr Vote commented:

He has problems sleeping and also has developed problems with erectile dysfunction which are probably related to his spinal fusion or implantation of his spinal stimulator."

1. In the applicant's statement[17] he states that he only experienced erectile dysfunction after the spinal surgery. However, in the clinical notes of Dr Kbar the first reference to erectile dysfunction is made on 10 December 2023.[18] He refers to seeing Dr Patel. Counsel for the respondent suggests that it is up to the applicant to explain this history. He submits that applicant does not raise this issue with Dr Nair at this time. Counsel referred to the report to Dr Kbar from Dr Nair[19] dated 4 September 2019 in which he referred to the applicant's sexual function. He noted:

"He has advised me about difficulties with his certain aspects of his sexual function. I have advised him that these may be pain related and anatomically not due to his spinal conditions as these are mediated by the autonomic nervous system through splanchnic nerves."

1. Counsel submits that this difficulty with sexual function is noted before the surgery and is therefore significant.

1. Counsel for the respondent distinguished the applicant's claim for injury to the coccyx from his claim of injury to the lumbar spine. He submitted that a reference to the lumbar spine is not a reference to the coccyx. They are different body parts.
2. Dr Alan Turnbull reviewed the reports of Dr Nair of June 2024 and Dr Kbar of May 2024 for the insurer. He provided a report dated 17 September 2024.[20] He concluded that the applicant's coccyx pain was highly likely to be related to his injury. However, Dr Turnbull did not recommend surgery for the applicant's coccydynia as he considered that the results of such surgery are poor, and he did not think it would be likely to be successful in the applicant's circumstances. He recommended activity modification, ring cushions, NSAIDS, analgesic medication, physiotherapy, manipulation and corticosteroid injections.
3. Dr Vote provided a report[21] to the insurer on 25 September 2023. He said in relation to treatment for the applicant's pain:

"I do not see any further treatment in the offering for this gentleman as everything that could be done has been done. I think his clinical course will more or less be to maintain his current state."

1. It is not necessary to deal with the history of injury which led to the applicant's lumbar surgeries, including the anterior lumbar spinal surgery. Liability for the applicant's original injuries, the subsequent lumbar surgeries and the subsequent revision lumbar surgery has been accepted by the respondent.
2. The issues for consideration by the Commission in resolving this application are whether the applicant's sexual function has been adversely affected by that injury and lumbar surgeries in the manner alleged by him and also, whether the proposed coccygectomy is consequential upon that original injury and lumbar surgeries and is a reasonably necessary treatment.

1. The respondent's reliance on the applicant's insulin resistance (diabetes mellitus) as possibly causing some sensory changes, and therefore being a possible contributing factor to his erectile dysfunction, is entirely speculative. Dr Gorman refers to it as a possibility. So does the insurer. The evidence before me is that the applicant's Type II diabetes is under control. There is no evidence linking this condition to the possible development of his erectile dysfunction. The insurer says that:[22]

"... we maintain that your diabetes myelitis is possibly contributing to your erectile dysfunction, where no contrary medical opinion has been provided."

1. The respondent refers to a possibility and then relies on the applicant's failure to refute that possibility to deny liability, in circumstances where there is no evidence supporting the existence of that possibility as a causative factor. I reject that argument.
2. In his report to Dr Kbar on 4 September 2019 Dr Nair notes the applicant has advised of difficulty with his sexual function. The doctor suggests that this difficulty is not anatomical but may be pain related. Given that the applicant was about to undergo surgery for severe back pain this is hardly surprising.
3. Counsel suggests that the history of complaint is patently incorrect and unreliable. I have reviewed and considered the transcript in relation to this submission. I reject it. A complaint about problems with sexual function - unspecified and probably arising from pain, not anatomical damage, according to Dr Nair - is distinguishable from the applicant's very specific complaints about erectile dysfunction post surgery.
4. I accept that the applicant is truthful concerning his sexual function and history.

As to the applicant's coccydynia and the coccyx excision

1. The respondent suggests that the applicant has failed to specifically notify an injury to his coccyx. I do not find this argument persuasive. The applicant states[23] that he always considered that the pain at the base of his low back was part of his back injury. The applicant is a tow truck driver, not an orthopaedic specialist. I consider his assumption in this regard to be perfectly straight forward and I accept his evidence as to his understanding as credible.
2. The medical support linking the applicant's coccydynia to his previous anterior lumbar surgery is very strong. He was injured, suffered pain, had injuries to various body parts including his back and legs and eventually had significant lumbar spinal surgery which had to be repeated. He continues to suffer pain, and medical testing has identified the area of continuing pain generation as the coccyx.
3. The applicant has explored other options including pain blocking injections, a spinal nerve stimulator and very strong medication.
4. I accept the evidence of the applicant, supported by his treating specialist and also by

Dr Vote, that he has come to the end of conservative treatment. 5. However, he has accepted the advice of his treating spinal surgeon, and despite the significant adverse matters about which he has been counselled, including residual pain and the possibility of infection, he has decided to proceed to a coccygectomy. 6. I have considered the decision of Burke CCJ in Rose v Health Commission (NSW)[24] in contemplation of the phrase "reasonably necessary" in s 60 of the 1987 Act:

"1. Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), 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.

1. However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties 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.
2. 3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
3. 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.
4. 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."
5. I consider that the treatment of a coccygectomy is appropriate and has a reasonable chance of alleviating the effects of the applicant's coccydynia. It is an opportunity for the applicant to reduce the pain which is the consequence of his injury and thereby improve his life and standard of living. Given the attempts of the applicant to date to seek remediation of pain through other methods, and his consideration of Dr Nair's advice as to possible consequences, I am satisfied that he has exercised prudence, sound judgement and good sense.
6. I am satisfied and find that the need for this surgery is causally related to the applicant's original injury, the spinal surgeries previously undertaken by the applicant, and possibly the operation of a spinal nerve stimulator, that the applicant has explored all conservative treatment options available to him and that he has taken a considered and reasoned decision to undergo the surgery recommended to him by his treating surgeon as a definitive treatment. That treatment is reasonably necessary in all the circumstances of this application.

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

[22] ARD page 22 (icare Review Outcome 23 February page 20).

[24] [1986] NSWCC 2.