1. A discharge referral from St George Hospital Emergency Department, dated

10 February 2023, noted that the applicant had presented to the hospital after steel mesh fell on him at work, momentarily trapping him. The applicant's main complaints were of left lower limb pain and right shoulder pain. The applicant underwent CT scans of his head, neck, chest and abdomen which were unremarkable. The applicant was observed in the Emergency Department for 12 hours uneventfully and reviewed by the trauma team who identified no clinically significant injuries. 2. The report of an MRI of the lumbar spine performed on 13 February 2023 noted a clinical history of ongoing pain after trauma. At L4/5 there was a mild disc protrusion but no compression of the thecal sac and no spinal canal or foraminal stenosis. There was bilateral facet joint arthrosis. At L5/S1 there was broad-based disc protrusion but no significant compression of the thecal sac. There was bilateral facet joint arthrosis. The report concluded that there were no acute findings in the lumbar spine but a presence of facet joint arthrosis due to degenerative changes. 3. A medical report prepared by Dr Eric Lim on 27 February 2023, said the applicant had been seen following a neck, shoulder and back injury sustained on 9 February 2023. The applicant was noted to have undergone an MRI on 13 February 2023, which showed a disc protrusion at L5/S1. On examination, the applicant was noted to have restricted lumbar spine flexion and extension, a sitting tolerance of 20 minutes and standing tolerance of 20 minutes. The applicant reported lower back pain radiating down the right leg and pins and needles in the right foot as well as trouble sleeping. Dr Lim concluded that the applicant had sustained a lower back injury after he slipped and fell backwards at work. 4. Clinical records from Dr Lim's practice are in evidence and record ongoing symptoms at the lumbar spine as well as conservative treatment of the injury. 5. In a report to Dr Lim dated 12 May 2023, Associate Professor Ghahreman, noted that he had reviewed the applicant after he slipped and fell at work on 9 February 2023. Since the accident, the applicant had experienced severe pain affecting his everyday activities and sleep. The applicant had been unable to return to work. The applicant reported lower back pain radiating to the right leg causing numbness in his toes and pins and needles. The applicant had decreased flexion and deflexion of his spine and lower limbs and could not stay seated for long periods of time. 6. It was noted that the applicant had now had a number of sessions of physiotherapy and was taking Gabapentin for his symptoms. Associate Professor Ghahreman stated:

"In the lumbar region, there is discovertebral injury at L5/SI. There is disc desiccation, bulge and annular tear with small extrusion in a right paramedial location causing irritation of the traversing right S1 root."

1. Associate Professor Ghahreman recommended a right S1 peri-radicular injection, ongoing physiotherapy and core strengthening exercises. Associate Professor Ghahreman said that if injection was unsuccessful the applicant could proceed with a right S1 decompression, rhizolysis and microdiscectomy.
2. On 12 February 2024 of the applicant underwent a further MRI of the lumbar spine due to worsening right lower back pain and new right dorsiflexion weakness. The MRI report indicated that the L4/5 disc was desiccated and with a diffuse bulge. Bilateral facet arthropathy was seen but there was no neural compromise. The L5/S1 disc was hypoplastic secondary to sacralisation. The author of the report remarked that there were mild early degenerative changes with desiccation of the L4/5 disc and bilateral facet joint arthropathy. The author commented that an explanation for the applicant's symptoms was not identified.
3. In a note recorded on 24 April 2024, Dr Lim's colleague, Dr Paul Tawadros, noted that the applicant's back pain had returned following radiofrequency ablation. It was noted that the applicant would be reviewed by Associate Professor Ghahreman on 3 May 2024.
4. On 19 June 2024, Dr Tawadros noted that the applicant had been seen by Associate Professor Ghahreman. The applicant's back pain was his priority. He was to attend a repeat MRI and follow-up with Associate Professor Ghahreman in August. The applicant was noted to be taking gabapentin twice-daily if required.
5. On 17 July 2024, Dr Tawadros noted that the applicant's back pain had increased in the last few days. The applicant was now using Endone on days he attended physiotherapy and gabapentin on other days.
6. The report of an MRI of the lumbar spine performed on 7 August 2024 again noted degenerative changes, with disc desiccation and diffuse bulge at L4/5 level. No "significant" neural compression was noted.
7. On 12 August 2024, Dr Tawadros noted that the applicant felt his back pain had gotten worse. The applicant did, however, feel he was benefiting from physiotherapy, and he was trying to increase his walking tolerances with physiotherapy.
8. The applicant underwent a bone scan with SPECT CT on 10 October 2024. In the lumbar spine there was active facet joint arthritis involving the right L5/S1 facet joint.
9. Associate Professor Ghahreman prepared a further report on 14 October 2024. The report noted that the applicant had a significant L5/S1 discovertebral injury. The applicant's bone scan confirmed facet joint arthropathy at L5/S1 on the right side.
10. Associate Professor Ghahreman said all measures including physiotherapy, radiofrequency and injections had been performed. The radiofrequency helped for one week. The applicant continued with severe pain, which he described as unmanageable, in his lower back with radiation to his right leg. Associate Professor Ghahreman recommended surgical treatment in the form of a posterior lumbar interbody fusion at L5/S1.
11. A surgical fee estimate of the same date indicated that the surgery would cost approximately $10,841.25.
12. On 2 December 2024, Dr Tawadros recorded that the applicant had been asked to attend an independent medical examination by the insurer. The applicant felt he was asked questions at the relevant, for example about why he left Iraq. The applicant's interpreter was late and the appointment was rushed.
13. Associate Professor Ghahreman prepared a report for the applicant's solicitors on

6 August 2025. In that report, Associate Professor Ghahreman said he had examined the applicant on 29 March 2023, 12 May 2023, 18 September 2023, 30 January 2024,

7 March 2024, 3 May 2024 and 14 October 2024. 14. Associate Professor Ghahreman reported that since the accident on 9 February 2023, the applicant had experienced severe lower back pain radiating to his right leg, causing numbness in his toes. The pain had a considerable impact on his everyday activities and sleep. The symptoms had progressed with worsening fluctuations in pain particularly at night and in the morning associated with global numbness of the right lower extremity and new right dorsiflexion weakness. 15. Associate Professor Ghahreman stated:

"My diagnosis is a significant L5/S1 discovertebral injury with facet joint arthropathy, a right S1 nerve root irritation, and a small annular tear with extrusion in a right paramedial location. The prognosis without surgical intervention is poor, as he has failed to respond for any length of time to non-operative management, and his pain is progressively worsening. With surgical treatment in the form of a posterior lumbar interbody fusion at L5-S1, the prognosis for a good result is favorable."

1. Asked to comment on the appropriateness of the treatment, Associate Professor Ghahreman responded:

"The proposed surgery is highly appropriate. It is a targeted, definitive treatment for the specific structural pathologies identified on imaging and confirmed through his response to diagnostic injections. The procedure aims to mechanically decompress the irritated S1 nerve root and stabilize the L5/S1 motion segment, which is currently a source of unmanageable pain."

1. Associate Professor Ghahreman said that alternative non-surgical treatments had been exhausted. The applicant had undergone physiotherapy, injections and radiofrequency ablation, none of which had provided sustained relief. Associate Professor Ghahreman commented:

"This confirms that the underlying mechanical issue cannot be resolved with conservative management alone and that a surgical solution is required."

1. Associate Professor Ghahreman said the surgery was expected to have a good result and was intended to significantly improve or resolve the severe pain and neurological symptoms caused by the structural injury. The procedure was standard and widely accepted among neurosurgical and orthopaedic experts.
2. Associate Professor Ghahreman observed that the mechanism of injury was consistent with an acute discogenic injury which directly corresponded to the L5/S1 pathology seen on subsequent imaging and clinical examination.
3. Asked to respond to opinions given to the insurer by Independent Medical Examiner,

Dr Michelle Atkinson and an independent physiotherapy consultant, Mr Michael Ryan, Associate Professor Ghahreman stated:

"I disagree with these assertions. Mr. Humuer's reported symptoms of severe pain, radiation to the right leg, and neurological deficits are entirely consistent with the significant discovertebral injury at L5/S1, which has been confirmed by a CT scan, MRI scans, and a bone scan. The temporary relief he experienced from the injections also provides a clear correlation between the symptomatic nerve root and the identified pathology. There is no clinical basis in my findings to support the conclusion of 'inconsistencies' or 'abnormal illness behavior.'

I strongly disagree with Dr. Atkinson's opinion. Her diagnosis of a 'minor lumbar spine soft tissue injury' is directly contradicted by multiple objective findings, including:

An MRI showing a discovertebral injury with a bulge, annular tear, and extrusion at L5/S1, as well as significant discovertebral sclerosis and facet joint hypertrophy at L4/5.

Clinical evidence of progressive neurological deterioration, including new right dorsiflexion weakness.

These findings clearly indicate a significant structural injury, not a 'minor soft tissue injury.'"

1. Associate Professor Ghahreman said the prognosis without surgical intervention was poor. The applicant's right sided weakness was a new and concerning sign of progressive neurological deficit.
2. Dr Lim also prepared a report for the applicant's solicitors dated 6 August 2025. Dr Lim also expressed disagreement with Dr Atkinson and Mr Ryan's assertions, stating:

"I disagree with Dr Atkinson and Mr Ryan's assertions of inconsistencies between Diaa's reported symptoms and pathology. There is clear medical evidence of objective structural and neurological impairment, with a disc protrusion on MRI confirmed.

Dr Atkinson opines his condition has resolved and has failed to consider that nature of the many years of repetitive physical work as a formworker that has caused the deterioration of his lower back condition, aggravated by the fall. His condition has not resolved, and he requires surgery.

The proposed L5/S1 posterior lumbar interbody fusion surgery as proposed by his treating neurosurgeon, Dr Ali Ghahreman, is reasonably necessary as it seeks to alleviate the ongoing consequences of his work-related injuries by permanently rectifying the structural defect of a lumbar disc protrusion. Conservative management has failed."

1. The applicant relies on a medico-legal report prepared by orthopaedic surgeon, Dr James Bodel, dated 27 May 2025. Dr Bodel took a history of the injury that was consistent with the applicant's evidence.
2. Dr Bodel noted that the applicant said he had no symptoms in the injured areas at the time of the accident.
3. The applicant reported finding driving difficult since the accident. He had not been able to participate in sports since the injury and struggled with household maintenance and cleaning and relied on his neighbours for assistance.
4. On examination, the applicant was observed to be uncomfortable when sitting on a chair and stood up slowly. There was tenderness over the top of the right buttock and guarding in the area with evidence of dysmetria and restricted range of motion. The right ankle jerk was diminished and there was weakness of plantarflexion on the right. The applicant could not perform a single leg heel raise on the right-hand side but could on the left. There was sensory loss in the S1 distribution along the sole of the foot and the lateral border of the foot consistent with S1 radiculopathy as identified by Associate Professor Ghahreman.
5. Dr Bodel noted reports from Associate Professor Ghahreman and investigations including MRI scans showing degenerative change at L5/S1 with facet joint arthropathy. It was noted that a posterior lumber interbody fusion at L5/S1 due to persistent severe pain and failure of conservative treatment had been recommended. Reference was also made to a report from Dr Lim and the general practitioners' clinical records.
6. Dr Bodel noted that an Independent Medical Examination report had been prepared for the insurer by Dr Atkinson on 25 January 2025. Dr Atkinson concluded that the applicant had sustained a minor lumbar spine soft injury that had resolved. Dr Atkinson deemed the proposed surgery inappropriate and stated that neither physiotherapy nor any other treatment was indicated. Dr Bodel disagreed with that opinion based on the clinical presentation to him.
7. Dr Bodel diagnosed an L5/S1 disc protrusion and expressed the opinion that on the balance of probabilities the injury was directly related to the workplace incident on 9 February 2023.
8. Dr Bodel noted that Dr Atkinson and an independent physiotherapist, Mr Ryan had noted inconsistencies between the reported symptoms and pathology. Dr Bodel commented that it was not uncommon for individuals with significant physical trauma to exhibit behaviours that may appear inconsistent or exaggerated during clinical assessments. The reported inconsistencies might reflect a genuine struggle with chronic pain and functional limitation rather than deliberate abnormal illness behaviour.
9. Dr Bodel said the clinical evidence including imaging studies and specialist reports indicated ongoing pathology in the lumbar spine consistent with the clinical presentation to him.
10. Dr Bodel expressed the opinion that the L5/S1 posterior lumber interbody fusion was reasonably necessary, stating:

"An L5/S1 posterior lumbar interbody fusion is, in my opinion, reasonably necessary. The clinical evidence, including imaging studies and specialist assessments, demonstrates significant pathology at the L5/S1 level including facet joint arthritis and disc degeneration, which correlate with his persistent symptoms.

Conservative treatments have been trialled extensively without providing improvement. Given the chronic nature of his symptoms and the failure of non-surgical interventions, surgical management is appropriate and justified."

1. Dr Bodel, said the surgical procedure was appropriate:

"The proposed L5/S1 posterior lumbar interbody fusion is an appropriate treatment for his lumbar spine condition. The clinical evidence, including imaging studies and specialist assessments, confirms significant pathology at the L5/S1 level, including facet joint arthritis and disc degeneration. These findings are consistent with his ongoing symptoms of lower back pain, radiculopathy, and functional impairment."

1. Asked about the availability of alternative treatment, Dr Bodel stated:

"Conservative measures, such as physiotherapy, cortisone injections, and radiofrequency ablation, have been trialled extensively without providing sustained relief or improvement in his functional capacity. Given the chronic nature of his symptoms and the failure of non-surgical interventions, surgical management is a logical and necessary step to address the underlying structural issues."

"Clinical evidence supports the efficacy of lumbar interbody fusion in cases of persistent pain and instability due to degenerative changes. The procedure is widely accepted within the medical community as an appropriate treatment for this condition."

1. Asked whether the work injury had materially contributed to the need for surgery, Dr Bodel opined:

"In my opinion, Diaa Malek's employment has materially contributed to the need for the proposed L5/S1 posterior lumbar interbody fusion surgery. The mechanism of injury involved a significant workplace incident wherein he slipped while carrying a heavy steel mesh. Given the temporal relationship between the workplace injury and the development of his lumbar spine condition, it is reasonable to conclude that his employment was a substantial contributing factor to the need for the fusion surgery."

1. The insurer obtained an independent physiotherapy consultant report from Mr Michael Ryan on 9 October 2024.
2. Mr Ryan took a history of the injury that was broadly consistent with the other evidence. The applicant reported that his back symptoms were progressively getting worse:

"Mr Humuer described ongoing constant lower back pain in the central to right side of his lower back which she said extends into the right buttock, with pain and numbness extending through the entire rear aspect of the right leg, through the thigh, the calf and into his heel, but Mr Humuer denied any symptoms extending into his toes. He described the symptoms as constant but variable, generally proportional to activity but that also the symptoms behave in a nonmechanical manner, in that they can just be worse for no real physical activity or posture. He described the symptoms particularly into the leg as being like 'electrical' and 'severe' pain, with Mr Humuer on specific enquiry, recounting that he feels similar symptoms in his left leg but that they are not constant, and not as severe as that which he experiences in the right leg. He explained that any position or any activity is associated with a worsening of his symptoms and that he can only do anything for about 10 to 15 minutes. Mr Humuer was most certain that his back pain is progressively getting worse despite undergoing various medical investigations and procedures, and extensive physiotherapy treatment."

1. The applicant reported attending physiotherapy and performing a regimen of exercises and self-massage. The applicant was taking a dose of gabapentin morning and night and one Endone before bed.
2. Mr Ryan performed a physical assessment during which he noted "many and gross inconsistencies". Mr Ryan expressed the view that the applicant appeared to have been "engulfed by an overarching chronic pain syndrome" which despite the best efforts of his treatment providers had not changed and was more likely than not unlikely to change significantly.
3. Mr Ryan provided a supplementary report on 1 September 2025 in which he was asked to respond to Dr Atkinson's report of 24 January 2025 and the report from Dr Lim dated

6 August 2025. Mr Ryan noted that the inconsistencies described by him were similar to those reported by Dr Atkinson. Mr Ryan commented:

"I understand there is a disc protrusion commented on in the MRI report. I do not disagree with that. However, the signs and reported symptoms I found at my examination, and the inconsistencies demonstrated by Mr Humuer throughout my physical examination, and as described in my original report, are not explained by the presence of any such disc bulge or protrusion. Mr Humuer demonstrated significant inconsistencies during my physical examination that are not consistent with a diagnosis of significant disc disease or lumbar radiculopathy. I appreciate that Dr Lim is providing his own clinical commentary in his report dated 6 August 2025 but I'm uncertain as to how he can make comment and pass judgement on what I did or did not observe when I examined Mr Humuer on 9 September 2024."

1. Asked whether the proposed surgery was reasonably necessary, Mr Ryan responded:

"I am of the firm opinion, regardless of the inconsistencies I observed and have commented upon, and Dr Lim's disagreement with such assertions, that despite the presence of a disc protrusion as evidenced on MRI, Mr Humuer's presentation is one more accurately described now as being associated with the complexities of chronic spinal pain, and not in my opinion, amenable to the surgery proposed. Indeed, there is quite some commentary throughout the surgical literature, and the literature as it relates to complex persistent spinal pain, that to proceed with the proposed surgery could potentially make Mr Humuer's situation in fact worse.

Again, for clarity, I do not dispute the fact that on MRI there is evidence of a mild to moderate disc protrusion at L5/S1. This is not an uncommon finding in people of Mr Humuer's age, particularly those engaged in many years of demanding physical labour. To my understanding, there is no radiological evidence of spinal nerve root or cauda equina compromise, nor is there radiological evidence of significant degenerative disc disease with bony segmental instability, which are both indications to potentially consider lumbar interbody fusion surgery. Clinically, there is no compelling evidence that there is present a frank radiculopathy which may, if present, indicate the consideration for some form of spinal surgery, but even then, not typically lumbar interbody fusion surgery."

1. Mr Ryan deferred to Dr Atkinson's opinion as a specialist orthopaedic spinal surgeon.

1. Neurosurgeon, Dr Caroline Tan, prepared an independent medico-legal report for the insurer on 1 December 2024.
2. Dr Tan took a history of the injury that was consistent with the other evidence. Dr Tan noted the temporary improvement with radiofrequency in March 2024 before a deterioration with worsening pain. It was noted that Associate Professor Gharehman had requested approval for a posterior lumbar interbody fusion at L5/S1.
3. On examination, Dr Tan noted that the applicant walked with a stiff, slow gait favouring the left limb and sat stiffly in a chair. Dr Tan reviewed lumbar spine X-rays dated 20 May 2019, MRIs of the lumbar spine dated 13 February 2023, 12 February 2024 and 7 August 2024 and a bone scan with SPECT CT dated 10 October 2024. The applicant reported constant central to right side low back pain radiating to the right buttock and down the entire rear aspect of the right lower limb to the heel but not into the toes, with similar pain in the left lower limb but intermittent and less severe.
4. Dr Tan diagnosed a lumbar facet injury but expressed the view that the fall as described would not have caused a lumbar disc injury because no loading of the disc could have occurred. Dr Tan said there was a strong suspicion of non-organic symptomology but noted that facet joint injuries could be persistent particularly if not adequately managed.
5. Dr Tan was asked whether the surgery proposed by Associate Professor Ghahreman was reasonably necessary as a result of the work injury and responded:

"No. First of all, Mr Humuer has transitional anatomy and this is important because it gives rise to uncertainty over exactly what spinal level Dr Ghahreman is proposing to fuse because Dr Ghahreman has not clearly stated whether he has taken the transitional anatomy into account when referring to L5/S1. Mr Humuer's MRI reports at Bankstown Lidcombe Imaging have labelled the transitional(sacralised) vertebra as L5 and identified that L5/S1 is congenitally fused. According to the naming of the vertebra by Bankstown Lidcombe Imaging, Dr Ghahreman would presumably be proposing to fuse L4/5. It would not be incorrect if Dr Ghahreman has chosen to identify the sacralised vertebra as S1 but he just needs to point out that this is different to the naming of the vertebra in the MRI reports. The second consideration is whether an L5/S1 fusion operation is indicated as a direct result of a workplace injury sustained on 9 February 2024. As I have stated in my answer to question 2, it does not appear that the accident caused any loading of the L5/S1 disc and therefore a disc injury could not have arisen from the accident. If the pain symptoms are materially due to a right facet joint injury, there may be a case for fusion of the segment with the symptomatic facet joint but it is questionable whether Mr Humuer will actually benefit from such surgery given the apparent inconsistencies in his clinical presentation and suspicion of non-organic or psychogenic symptomatology. There are plenty of patients with less invidious presentations who have ended up with so-called failed back surgery syndrome. If there is a significant psychogenic component to his presentation, and given his less-than-ideal social situation as a non-English speaking refugee with no family supports, there is a high risk of a permanent poor outcome from a fusion operation which Mr Diaa certainly does not need."

1. The insurer obtained an independent medico-legal report from orthopaedic surgeon,

Dr Michelle Atkinson, on 24 January 2025. 2. Dr Atkinson took a history of the injurious event on 9 February 2023 that was consistent with the other evidence. The applicant reported developing lower back pain two to three days later with radiation into the right buttock, posterior thigh and calf to the Achilles tendon. The applicant also noted numbness in the posterior aspect of the proximal right thigh and a pinching sensation in the right lower back. 3. The applicant denied any previous back issues although there was a 2019 radiograph of the lumbar spine requested by Dr Mohammed Ali. Asked about the imaging, the applicant responded that he had lower back muscle spasm and left ankle issues. These were treated with a heat pack and did not require time off work. 4. Dr Atkinson noted that the applicant had undergone radiofrequency ablation without effect and weekly physiotherapy but his pain was becoming worse. The applicant was noted to be taking oxycodone every day and gabapentin twice-daily. 5. Dr Atkinson recorded her physical examination as follows:

"Diaa walked excessively slowly and was antalgic off the right leg until asked to walk on his heels and toes and his limp resolved. He was able to walk into the consultation room in thongs and yet he could not elevate his right foot to walk on his heels which would usually cause a person to walk out of their thongs. When asked to dorsiflex his toes and ankle his extensor brevis was active and palpated like a normal muscle and yet his ankle and foot did not move at all. When examined and when he walked into the consultation room, he held his right upper limb against the side of his chest and with the elbow extended. When animated during the history taking, he used his right upper limb normally in conversation, flexing the shoulder to 30 degrees, flexing the elbow and adducting it across his body towards the interpreter seated to his left.

The calf measurements were equal at 38cm, 10cm below the tibial tubercle. His knee, ankle and medial hamstring reflexes were symmetrical and normal and the plantar response was flexor. When he was supine he complained that his right foot was going numb and in the great toe, second and third toe and the Achilles tendon, posterior calf, medial border of the heel and foot to the great toe which is non-dermatomal. The skin over the leg was normal and pulses were present and strong in the feet. When I requested him to flex forward while standing he became unsteady on his feet, reached for support from the bed and failed to bend. When I asked him to extend and to laterally flex his movement was negligible. When I asked him to explain how he could bend in the middle to sit he said he found it easier when seated."

1. Dr Atkinson noted that the 2019 radiograph of the lumbar spine showed mild lower lumbar facet sclerosis. Dr Atkinson said the lumbar spine MRI was essentially normal for a 52-year-old male, with very mild L5/S1 desiccation and no neural impingement.
2. Dr Atkinson expressed the opinion:

"I find Diaa's prolonged and abnormal illness behaviour contrived and without confirmation of symptoms on examination or investigation and with denial of previous complaints of low back pain and investigation."

1. Dr Atkinson said the applicant had resolved minor lumbar spine soft tissue injury and surgery was inappropriate. Dr Atkinson said no other treatment was appropriate and considered the applicant was fit for full employment without any restrictions.
2. Dr Atkinson provided the insurer with the supplementary report on 3 September 2025.

Dr Atkinson was asked to consider the report of Mr Ryan dated 9 October 2024 and the report of Dr Lim dated 6 August 2025. Dr Atkinson commented:

"A surgical fusion is indicated in the presence of instability threatening the neural structures or neural compression. Neither of these are present. A surgical fusion is contra-indicated in the presence of mental health disorders such as depression. Was a psychiatrist consulted? Likewise, the diagnosis of "overarching chronic pain syndrome" by the physiotherapist appears unwise. This may prompt further rounds of Pain Management while continuing to ignore the mental health disorder in an isolated and vulnerable individual."

1. Dr Atkinson commented further that Dr Lim was not qualified to provide a surgical opinion and in attempting to do so has not produced evidence to support his claim.

1. The applicant submitted that the dispute turned on Dr Atkinson's opinion that he had a resolved minor, soft tissue injury.
2. The applicant referred the Commission to the general practitioners' clinical notes, observing that within a month of the incident the applicant had presented with lower back pain radiating down the right leg and pins and needles in the right foot. The applicant said the clinical notes showed regular references to back pain thereafter, indicating that Dr Atkinson's opinion that there had been a resolution of a soft tissue injury was erroneous.
3. The presence of structural pathology was confirmed on radiological investigation.
4. Associate Professor Ghahreman sent the applicant for cortisone injections. These provided temporary relief and the applicant reported progressively increasing pain. Associate Professor Ghahreman's reports showed ongoing back pain despite conservative treatment, leading to the recommendation for surgery.
5. The applicant submitted that Associate Professor Ghahreman, a neurosurgeon and spinal surgeon, could be expected to provide an accurate diagnosis of a patient of whom he assumed liability for treatment.
6. The applicant noted that Associate Professor Ghahreman's most recent report for the applicant's solicitors provided a more fulsome opinion. He reported that since the accident the applicant had experienced severe lower back pain radiating to his right leg. This account was consistent with the contemporaneous treating records.
7. Associate Professor Ghahreman diagnosed a significant L5/S1 discovertebral injury with facet joint arthropathy, a right S1 nerve root irritation, and a small annular tear with extrusion in a right paramedial location. The prognosis without surgical intervention was said to be poor, the pain was progressively worsening, and the applicant had failed non-surgical treatment.
8. The applicant submitted that Associate Professor Ghahreman had provided a detailed account of the pathology arising from the injury compared to the respondent's evidence.

Dr Atkinson simply asserted that there was a soft tissue injury. Associate Professor Ghahreman had the skills and experience to determine whether the applicant had the pathology described. 9. The applicant submitted that Associate Professor Ghahreman had addressed the requirements of s 60 of the 1987 Act. The surgery was said to be appropriate, constituting targeted, definitive treatment for the specific structural pathology identified. Associate Professor Ghahreman considered the alternative treatments undertaken, none of which had provided sustained relief. A good outcome was expected upon completion of the surgery and it was intended to significantly improve or resolve the severe pain and neurological symptoms caused by the injury. 10. Associate Professor Ghahreman disagreed with the respondent's experts' assertions and explained why that was so. 11. With regard to the opinions that the applicant was exhibiting abnormal illness behaviour, the applicant submitted that it was preposterous to suggest that he was feigning illness in order to undergo a significant surgery accompanied by significant risks. Associate Professor Ghahreman said there were multiple objective findings supporting the proposal for surgery. The applicant submitted that the respondent's expert opinions ought to be approached with significant circumspection and caution. 12. The applicant submitted that the report of symptoms given to the respondent's experts was accepted by Associate Professor Ghareman who concluded that the only treatment available was surgery. The fact that there was pain behaviour did not negate the presence of significant pain. Mr Ryan appeared to accept that the applicant continued with symptoms and ongoing functional incapacity, which was inconsistent with Dr Atkinson's opinion that there was a soft tissue injury which had resolved. 13. The applicant referred to Dr Bodel's report in which he disagreed with the opinions expressed by Dr Atkinson and Mr Ryan. Dr Bodel diagnosed an L5/S1 disc protrusion.

Dr Bodel said it was not uncommon for individuals who have sustained significant physical trauma to exhibit behaviours that may appear inconsistent or exaggerated during clinical assessments. The applicant submitted that the impression of inconsistencies or exaggeration, would not constitute a proper or objective basis for declining surgery intended to address real pathology as identified by a qualified surgeon. 14. Dr Bodel expressed the view that the clinical evidence, including imaging studies and specialist reports, indicated ongoing pathology in the lumbar spine and was consistent with the clinical presentation to him. 15. Dr Bodel expressed the opinion that, given the chronic nature of the applicant's symptoms and the failure of non-surgical interventions, surgical management was appropriate and justified. 16. The applicant submitted that Dr Bodel formed the view that the evidence provided an objective foundation for the applicant's complaints of pain. 17. The applicant noted that Dr Atkinson referred to radiological investigations of the lumbar spine in 2019. Despite this, the applicant was performing a significantly physical job prior to the injury. After the injury, the applicant was totally incapacitated. Regardless of any underlying or pre-existing condition, there was a traumatic injury on 9 February 2023. 18. The applicant submitted that the fact of an injury and the presence of genuine, ongoing complaints had been accepted by the applicant's treating practitioners. Their opinions had been corroborated by Dr Bodel both with regard to diagnosis and the recommendation for treatment. In the circumstances, the applicant submitted that the evidence amply established that the surgery proposed by Associate Professor Ghahreman was reasonably necessary as a result of the undisputed injury.

1. The respondent submitted that there was a dichotomy between the applicant's presentation to the doctors on each side.
2. While Dr Bodel had been asked about the abnormal illness behaviour observed by the respondent's experts, his opinion was speculative. It was equally plausible that the behaviour exhibited to the respondent's doctors was contrived to impress upon them the presence of a work-related condition.
3. The respondent observed that Dr Tan had provided an opinion that the mechanism of injury would have involved an even impact on the spine in a neutral position and would not have caused a lumbar disc injury. Dr Tan held a strong suspicion of non-organic symptomology. Dr Tan also noted a lack of certainty around the disc labelling and the intended target of the surgery. Dr Tan suggested that the sacralised L5 vertebra was congenitally fused. This was not addressed by Associate Professor Ghahreman. The respondent submitted that the Commission would not be satisfied that the applicant had made out his case when there was a congenital issue that had not been addressed by any of the specialists other than Dr Tan.
4. The respondent referred to the applicant's statement evidence and noted that no scan of the lumbar spine was taken when the applicant presented to the Emergency Department. It was unclear whether the applicant reported symptoms at the lumbar spine at that time. In any event, the applicant was informed that there were no significant findings.
5. Although further scans were undertaken a few days after the event there were no acute findings and only degenerative changes noted.
6. While the applicant made continuing complaints of significant pain, the respondent's practitioners had considered that these complaints were not commensurate with the pathology seen on the radiological investigations. The respondent's doctors considered there was no plausible explanation for the applicant's presentation. There was a conflict of opinion with regard to whether there was evidence of radiculopathy. There appeared to be a vast difference between the applicant's complaints of symptoms and the radiological findings.
7. The respondent referred to Mr Ryan's reports and his view that there were considerable inconsistencies during his examination. Mr Ryan considered there was an overarching chronic pain syndrome and no clinical evidence of radiculopathy. Mr Ryan took issue with

Dr Lim's opinions. The respondent submitted that Dr Bodel conceded there was a possibility of inconsistent behaviour. The respondent further submitted that Mr Ryan's views were more consistent with the radiological findings and hospital records. Mr Ryan was at pains to identify the inconsistencies and explain his approach. As a physiotherapist, Mr Ryan was at the coalface of treating people with pain. His opinion that the applicant's presentation was not consistent was based on his experience. 8. Dr Atkinson's opinions were also at odds with those expressed by Dr Bodel and Associate Professor Ghahreman. Dr Atkinson took up what Mr Ryan had said and noted earlier degenerative changes seen on the 2019 radiological investigation. The applicant's MRI was essentially normal. Dr Atkinson's conclusions were drawn from what she had seen, the radiology and the history. Dr Atkinson determined that the applicant had a healthy 52-year-old spine. If there was an injury, it had healed. The respondent submitted that this conclusion was open to the Commission also, in which case it would be concluded that the proposed surgery was not appropriate. 9. The respondent noted that in her supplementary report, Dr Atkinson suggested that surgical fusion was normally indicated in the presence of instability threatening the neural structures or neural compression. Dr Atkinson stated that neither of these were present in the applicant's case. The respondent submitted that neither Dr Bodel nor Associate Professor Ghahreman commented on stability or nerve root irritation. There was no explanation of their underlying assumptions and reasoning. Dr Bodel and Associate Professor Ghahreman's descriptions of the pathology could be contrasted with the radiological reports themselves. 10. The respondent submitted that its experts also took the view that surgery was contraindicated in the presence of mental health disorders. 11. The respondent submitted that the applicant's evidence was unsatisfactory. There was a lack of surgical indication and the Commission would not be satisfied that surgery was appropriate. 12. The respondent submitted that there was clear evidence of a pre-existing degenerative lumbar condition. The degenerative changes seen in the applicant's lumbar spine were normal for a 52-year-old. There was no compelling evidence of radiculopathy. Inconsistencies and pain behaviour had been observed that were not explained by pathology. The respondent's experts had expressed the view that surgery could make the applicant's condition worse. In the circumstances, the respondent submitted that there should be an award for the respondent.

1. The applicant submitted that the respondent's submissions failed to acknowledge that Associate Professor Ghahreman had greater knowledge than anyone of the applicant's condition. Associate Professor Ghahreman had examined the applicant on seven occasions. Associate Professor Ghahreman was satisfied that there was severe pain with radiation. There was a long process of treatment and diagnosis that lead to the recommendation for surgery. In contrast, Dr Tan and Dr Atkinson each saw the applicant on a single occasion. Dr Tawadros had recorded that Dr Tan's examination was rushed.
2. While it had been suggested by the respondent's experts that the Commission could not rely on Dr Lim for a surgical opinion, equally the Commission would not rely on the opinion of a physiotherapist.
3. The applicant submitted that the respondent's theory that the applicant was trying to have a pre-existing condition accepted as work related was hard to reconcile with Dr Atkinson's view that there was a normal spine or a minor soft tissue injury that had resolved.
4. While the respondent had submitted that there was no evidence of nerve root irritation, Associate Professor Ghahreman had provided that evidence. Associate Professor Ghahreman said the procedure was intended to decompress the irritated S1 nerve root. Associate Professor Ghahreman was described by Dr Bodel as an "eminent" spine surgeon.
5. The applicant submitted that the Commission would accept that Associate Professor Ghahreman's opinions were reliable with respect to diagnosis and treatment. There was a contest between the expert responsible for the applicant's care, who had seen him seven times and attempted conservative measures and an expert for the respondent who had seen the applicant once and did not understand the nature of the condition. Dr Atkinson had provided no explanation for why she considered the work injury had resolved. The clinical notes showed ongoing and increasing complaints of symptoms.
6. With regard to the radiological reports, the applicant submitted that the radiologist provided one view. The treating surgeon, with the benefit of clinical examination, provided another. Associate Professor Ghahreman found an irritated S1 nerve root.
7. The applicant submitted that the injury was a pivotal event that marked the difference between being able to work in heavy duties and having no capacity to engage in any work. The applicant submitted that the Commission would accept that the applicant's condition was the result of the work injury and that the injury had materially contributed to the need for surgery. All other treatments to date had failed.

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)[1] 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,[2] 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'."[3]

1. There is no dispute in these proceedings that the applicant sustained an injury to his lumbar spine in the event on 9 February 2023. The nature of that injury is, however, the subject of conflicting expert opinion.
2. The respondent's medicolegal expert, Dr Atkinson, formed the view that the applicant sustained a minor soft tissue injury which had resolved by the time of her examination of the applicant on 24 January 2025. Dr Atkinson formed this view in large part based upon her examination of the applicant and her impression that he had exhibited contrived abnormal illness behaviour as well as the applicant's denial of any previous back symptoms despite a 2019 radiograph of the lumbar spine. Dr Atkinson considered that the MRI of the applicant's lumbar spine was essentially normal for a 52-year-old male with only very mild L5/S1 disc desiccation and no neural impingement.
3. Dr Tan formed a similar view of the applicant's clinical presentation, commenting on inconsistencies and her suspicions of non-organic or psychogenic symptomology. Dr Tan accepted that there was a lumbar facet injury but did not accept that the mechanism of the fall as described to her would have caused a lumbar disc injury.
4. The independent physiotherapist qualified by the respondent, Mr Ryan, also found "many and gross inconsistencies" at the time of his examination of the applicant which he said could not be explained by the disc protrusion commented on in the MRI reports.
5. The manner in which the applicant presented to the respondent's experts appears to have significantly coloured their view of the reliability of his complaints of symptoms emanating from the lumbar spine.
6. It is notable, however, that the reported history of symptoms given to the respondent's experts was broadly consistent with that given to and recorded by his own treating doctors and Dr Bodel and has remained consistent over time.
7. Dr Bodel commented that it was not uncommon for individuals with significant physical trauma to exhibit behaviours that may appear inconsistent or exaggerated during clinical assessments. Dr Bodel said the reported inconsistencies might reflect a genuine struggle with chronic pain and functional limitation rather than deliberate abnormal illness behaviour.
8. I also accept the applicant's submission that evidence of exaggeration or inconsistency during a medicolegal examination would not, on its own, provide a proper basis for rejecting the applicant's claim.
9. It is necessary, in the circumstances of this case, to give careful consideration to the radiological evidence and the contemporaneous clinical observations of the applicant's treating doctors.
10. There is evidence that the applicant had previously sought medical advice and was referred for radiological investigations for lumbar symptoms in 2019. I accept, however, that prior to the event on 9 February 2023, the applicant had demonstrated a capacity to engage in heavy, physical work without apparent difficulty. The applicant told Dr Atkinson that the 2019 symptoms had resolved with the use of a heat pack and did not require time off work. There is no evidence to the contrary.
11. Although the Emergency Department records on the date of the incident give no indication of an injury to the lumbar spine, it is apparent that the applicant's general practitioner referred him for an MRI scan on the basis of ongoing pain following the traumatic event only a few days later.
12. The report of the MRI scan performed on 13 February 2023 suggested there were no acute findings but noted the presence of degenerative changes particularly to the facet joints. Minor disc protrusions were also noted at L4/5 and L5/S1.
13. When the applicant first saw Dr Lim on 27 February 2023, he was noted to have restricted lumbar spine flexion and extension, reduced sitting and standing tolerance and reported lower back pain radiating down the right leg with pins and needles in the right foot.
14. The same symptoms and functional impairments were reported to Associate Professor Ghahreman when he reviewed the applicant on 12 May 2023. Associate Professor Ghahreman said he had reviewed the MRI scans himself and they showed disc desiccation, bulge and annular tear with a small extrusion in a right paramedial location causing irritation of the traversing right S1 root.
15. Associate Professor Ghahreman's own view of the MRI scans, informed by the clinical presentation to him, thus suggested more significant pathology, particularly at L5/S1 than was indicated in the MRI report of 13 February 2023.
16. Disc desiccation and a diffuse bulge but without significant neural compromise were noted in the reports of further MRIs taken on 12 February 2024 and 7 August 2024. Active facet joint arthritis involving the right L5/S1 facet joint was revealed on a bone scan with SPECT CT in October 2024.
17. As noted in Associate Professor Ghahreman's most recent report, the applicant has consistently reported ongoing and progressively worsening symptoms including new right dorsiflexion weakness. This is confirmed in the general practitioner's clinical notes.
18. The applicant did report temporary relief from injections which suggested to Associate Professor Ghahreman a correlation between the applicant's symptoms and nerve root pathology. Associate Professor Ghahreman expressed the view that the reported symptoms were consistent with his reading of the radiological evidence and the results of the injections. Taken together, there was clear, objective evidence of a discovertebral injury at L5/S1.
19. Dr Bodel took a history of similar symptoms and noted findings on clinical examination consistent with S1 radiculopathy. Dr Bodel agreed that there was evidence of significant pathology at L5/S1 including facet joint arthritis and disc degeneration correlating with the applicant's persisting symptoms.
20. Reports from the applicant's general practitioner, Dr Lim were consistent with the opinions of Associate Professor Ghahreman and Dr Bodel.
21. Weighing against the applicant's evidence are the reports from the respondent's experts.
22. Mr Ryan recorded that the applicant reported ongoing constant lower back pain in the right to central side of his back extending into the right buttock with pain and numbness extending through the rear aspect of the right leg. As noted above, these symptoms are consistent with those reported to the applicant's treating doctors over time and Dr Bodel. Although, Mr Ryan acknowledged that there was a disc protrusion shown on the MRI evidence, he considered the applicant's presentation was more consistent with a chronic pain syndrome and not amenable to surgery. Mr Ryan said that it was his understanding that there was no radiological evidence of spinal nerve root compromise or instability.
23. The applicant's submissions noted, however, that Associate Professor Ghahreman did find evidence of nerve root irritation at S1 following his own review of the MRI scans and the results of a right S1 peri-radicular injection.
24. Mr Ryan's report was primarily focused on the question of whether further physiotherapy treatment was reasonably necessary as a result of the injury. While Mr Ryan has offered an opinion on the suitability of surgery based on his experience a physiotherapist, I am not satisfied that he is as well-placed as Associate Professor Ghahreman to comment on the radiological investigations or the necessity for surgery.
25. Dr Tan also noted that the applicant reported constant central to right sided lower back pain radiating to the right buttock and down the entire rear aspect of the right lower limb. Dr Tan accepted that there was a lumbar facet injury but was not prepared to accept that there was a disc injury given the mechanism of the accident. Dr Tan appeared to accept that if the applicant's symptoms were due to a right facet joint injury there may be a case for fusion of the segment with the symptomatic facet joint. Dr Tan expressed reservations, however, as to the likely success of the surgery given the apparent inconsistencies in the applicant's clinical presentation and her suspicion that there was non-organic or psychogenic symptomology.
26. Dr Atkinson took a history that the applicant developed lower back pain two to three days after the incident with radiation into the right buttock posterior thigh and calf to the Achilles tendon. The applicant also noted numbness in the posterior aspect of the proximal right thigh and pinching sensation in the lower back. As noted above, this account is consistent with the applicant's report of symptoms to all of the doctors involved in his case.
27. Dr Atkinson formed the view that the applicant's MRI was essentially normal, showing only very mild L5/S1 desiccation and no neural impingement. Dr Atkinson said that a fusion would be indicated in the presence of instability threatening the neural structures or neural compression, neither of which were present.
28. As noted above, Associate Professor Ghahreman formed the view that there was neural compromise at S1. It is unclear from her reports, whether Dr Atkinson reviewed the MRI scans herself. Dr Atkinson also did not comment on the results of the right S1 peri-radicular injection.
29. No other doctor involved in the applicant's case has diagnosed a soft tissue injury on

9 February 2023. Dr Atkinson has not explained the basis on which she formed the view that the soft tissue injury had resolved other than by reference to her impression that there was contrived abnormal illness behaviour. 30. The foregoing analysis of the evidence reveals that the applicant has described his symptoms in a consistent fashion from a time shortly after the accident on 9 February 2023. Other than some symptoms in 2019 which resolved with the use of heat packs, there is no suggestion that the applicant was experiencing lumbar symptoms prior to the incident on that date. While the radiological reports do not suggest any particularly sinister pathology, the applicant's treating specialist, who has examined the applicant on approximately seven occasions and reviewed the MRI scans himself, has formed the view that the incident caused structural pathology at L5/S1 including irritation of the S1 nerve root. This was thought to correlate with the results of a right S1 peri-radicular injection. Associate Professor Ghahreman's view as to the nature of the injury and the necessity of surgery has been supported by Dr Lim and the applicant's independent expert, Dr Bodel. 31. While it is apparent that there was some degree of embellishment or exaggeration during the examinations by Mr Ryan, Dr Tan and Dr Atkinson, for the reasons given above, their opinions do not persuade me that Associate Professor Ghahreman's opinions should not be accepted. 32. I have also noted Dr Tan's comments with regard to the sacralised vertebra and the naming of the vertebral segments in the radiological reports. While I accept that there is some lack of clarity arising from this circumstance, Dr Tan does not suggest that this, in itself, constitutes a basis for finding that the proposed surgery is not appropriate. Indeed, Dr Tan leaves open the possibility that the fusion surgery at L5/S1 would be appropriate for a symptomatic right facet joint injury. 33. After carefully weighing of the evidence, and despite the unfortunate absence of some of his treating reports, I prefer Associate Professor Ghahreman's view as to the nature of the work injury on 9 February 2023. 34. I am also satisfied that the proposed surgery is reasonably necessary as a result of that injury. The evidence before me indicates that the surgery is appropriate for the type of structural pathology identified by Associate Professor Ghahreman. Although alternative treatments have been trialled including physiotherapy, injections and radiofrequency ablation, these have not provided any lasting relief. While the cost of the treatment is not insignificant, I accept that it has the potential to alleviate the applicant's symptoms which have proven to be both persistent and debilitating. There is a consensus amongst the applicant's doctors that the treatment is appropriate and likely to be effective. 35. For the reasons given above, I am satisfied that there should be an award in favour of the applicant.

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

[2] [2014] NSWWCCPD 72.