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

(a) did Ms Juklen injure her lumbar spine?

(b) if so, is the proposed surgery to the lumbar spine reasonably necessary?

(c) is the proposed further surgery to the cervical spine reasonably necessary?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. On 1 September 2025, this matter was heard in person at the Personal Injury Commission (Commission) premises. The applicant was represented by Mr Josh Beran, briefed by Mr Chris Lehmann from Messrs Gerard Malouf & Partners with Ms Theresa Ayoub. The respondent was represented by Mr Daniel Stiles, briefed by Ms Laura Beattie of Messrs Sparke Helmore with Ms Mariana Sawa.
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;

(b) Reply and attached documents, and

(c) Application to Lodge Additional Documents by the respondent registered

27 August 2025 (ALAD).

1. No application as made with regard to oral evidence.

1. Ms Juklen brought an earlier action in 2023, also seeking a declaration that proposed surgery to the cervical spine was reasonably necessary. I heard that claim and made an award that the proposed surgery by Dr Hsu for a C5/6 posterior cervical decompression and fusion was reasonably necessary.[1]
2. In that decision the issue was whether proposed surgery to revise an earlier operation dated

8 May 2019 was reasonably necessary. The treating surgeon, Dr James Van Gelder considered that Ms Juklen's continuing symptoms following the surgery were not caused by the non-union of the fusion he had performed at C5/6. I surveyed the competing opinions, and in fact directed that the matter be referred to a Medical Assessor for a general opinion about the issue. 3. The opposing opinions came from Dr Van Gelder and Dr Vanessa Perotti, neurosurgeon, on the one side. On the other was Dr Brian Hsu, spine surgeon, whom Ms Juklen had consulted for a second opinion regarding Dr Van Gelder's advice, and Medical Assessor Todd Gothelf. There were other opinions from other disciplines which I also considered.

1. The chronology of events since my determination was adequately set out in the description of the injury within the present ARD:

" ...On 13 April 2023, the Personal Injury Commission issued a Certificate of Determination (and Statement of Reasons in Support) with an order for the Respondent to pay the costs of and incidental to C5/6 posterior cervical discectomy and fusion surgery.

On 16 May 2023, the Applicant underwent the above surgery.

In November 2023, Dr Hsu recommended the Applicant undergo a bone scan and SPECT CT of the lumbar spine to investigate her ongoing chronic pain symptoms.

On 29 November 2023, Blacktown City Council issued a s78 notice disputing liability for injury to the lower back/lumbar spine, including treatment associated with the lower back/lumbar spine.

On 9 January 2024, Blacktown City Council issued a further s78 notice maintaining its decision to dispute liability for injury to the lower back.

In February 2024, Dr Hsu recommended the Applicant undergo L2/L3/S1 lumbar decompression and fusion surgery."

1. The claim in fact also encompassed another revision of the cervical revision surgery. The particulars of the s 60(5) claim in the ARD stated:

C4-5 C5-6 Anterior Cervical Decompression and Fusion...

A general order for section 60 expenses associated with disputed physiotherapy treatment and [p]articipation in a pain management program"

1. Although this statement was not signed by the applicant, Mr Beran stated that it was adopted by her.
2. Ms Juklen had been employed by the respondent as a casual childcare aide working at various childcare centres in the Blacktown area.
3. At [29] Ms Juklen stated that she had earlier sustained an injury to her lower back for which workers compensation had been paid.
4. She said at [30] the earlier injury occurred when she was lifting a box of hand towel rolls in 2000 when she had been employed by Westmead Hospital. She said:

"I did not work until about 2006 when my condition had improved and I had no symptoms of pain in my lower back or any part of my back, including my neck".

1. She stated that on 11 October 2018, she started working at Kids' Early Learning, Dean Park. She described her injury as follows:[3]

"55. At about 1.10pm I stood up, holding the open laptop on my left arm and wrist, and walked towards the bookshelf area and a child poked her head over the side of the bookshelf and said 'Hi Besima.' I said 'Hi. Can you please get down.' Across the room, Margaret called out 'Hi Besima' and I turned my body to the right and took one step and said 'Hi Margaret (as I was going to walk to where Margaret was).

1. As I turned and took one step, my left leg caught on the bench (I was still holding the laptop and I do not remember how I fell or who picked me up. I have no memory of how I fell or who picked me up - I do not know if I got up myself or someone helped me up. The next thing I remember is that I was sitting on the top of a bench and I had sore sharp pain all around my stomach, ribs and chest area and I could no breath, as I also had strong neck pain which was going from my neck up to my head, giving me a headache and I felt dizzy. I also had sore strong pain (like pins and needles) in both wrists.

1. I told Kristy I had sore sharp pain all around my ribs (left side) and had pain down my left side, in my neck, head and pain in both wrists. I stood up from the bench and Kristy told me to rest on the sofa so I walked slowly to the sofa and sat down.
2. When I was sitting on the sofa I told Kristy that I still have sore sharp pain around my ribs and Kristy said 'If you can move walking, then that means you have not broken your ribs and that's good.'
3. Kristy then left the room 3 - 5 room and I sat on the sofa for about 20 minutes, until around 1:30pm. I stood up and said to Margaret that I still had sore sharp pain in my rib area (left side) and I was having trouble breathing as I had a headache, my neck was sore. I asked Margaret where Kristy was as I had to fill out an accident form as I had to see a doctor. I told Margaret I would go and look for Kristy."
4. At [75] Ms Juklen described how when she woke up on the next day, 20 October 2018, she went back to the medical centre because of "pain in my neck, left rib, left chest, left shoulder and wrists was still there and my headache was still there and I felt dizzy." She said that

Dr Montana (Ducic) gave her referrals for a CT scan of "my neck, left shoulder, back, chest and rib area and both wrists" as well as a reference to a cardiologist, Dr Cranswick, about her chest pain. 5. At [76], Ms Juklen described how her husband picked her up from the medical centre and drove her home. She said:[4]

"Over that weekend, I was in pain and could do nothing. I was not sleeping and the pain medication was not helping with the pain. I was now feeling pain all down my left side, including my left shoulder, left chest and rib area, left hip, left knee and still the same pain in my neck and lower back area and both wrists."

1. Ms Juklen further mentioned complaints about her back at [85], where she described that she saw Dr Dowla on 24 October 2018, and that "I was still feeling strong pain in my left shoulder, left hip and left knee and sharp strong pain in my left chest and rib area - and neck pain and headache, and lower back pain."

1. Ms Juklen made two further statements dated 2 September 2022 and 15 May 2025.
2. Ms Juklen said at [32] of her statement dated 2 September 2022 that she felt that her condition would only worsen over time "if I am unable to undergo the surgeries proposed by Dr Hsu." She said that her neck and lower back continued to cause ongoing struggles in her life.
3. In her third statement dated 15 May 2025, Ms Juklen repeated the circumstances of her injury on 19 October 2018, saying relevantly:[5]

"27. In addition to suffering from neck pain and stiffness following surgery, I experienced radiating pain from my neck into both shoulders and hands, including pins and needles in both hands and a feeling of numbness in my right hand. I also continued to experience lower back pain, with radiating pain into both legs.

28. As the effects of surgery wore off, my lower back pain became more noticeable. My neck pain never went away, but it slowly and gradually reduced after my C5/6 fusion surgery."

1. Ms Juklen related how she had been advised by Dr Hsu that she needed to have surgery in her lower back. She said:

"40. Dr Hsu recommended I undergo an injection to see if that would lessen my pain. It didn't and in November 2024, Dr Hsu told me I needed to have further surgery (revision of the C5/6 Fusion and C4/5 C5/6 anterior cervical decompression and fusion)."

1. Dr Montana Ducic was Ms Juklen's general practitioner (GP) at the Blacktown Family Medical Centre. Dr Docic had been Ms Juklen's doctor since 2011, her records showed.

Dr Ducic's records confirmed that following the subject incident she was consulted by

Ms Juklen as set out by Ms Juklen in her 7 November 2028 statement. Ms Juklen attended on 19 October 2018, 20 October 2028, 22 October 2018 and 23 October 2018, and regularly thereafter. The entries demonstrated that Ms Juklen complained of more symptoms as the weekend progressed. Dr Ducic ordered an array of investigations to many parts of

1. Dr Dowla wrote two 2024 reports dated 16 February 2024 and 22 May 2024 regarding

Ms Juklen's post May 2023 cervical surgery.[6] In the first report he noted Ms Juklen's complaint of feeling "a little tight in the neck" after that surgery. His nerve conduction studies showed no evidence of focal or generalised neuropathy. He noted a CT scan of

30 January 2024 which demonstrated L5-S1 degenerative changes, a 5mm anterolisthesis secondary to LS pars defect with severe foraminal changes, together with, at L4-5, a degenerative discopathy with reduction in disc height and a broad-based disc bulge causing moderate canal stenosis and neuronal foraminal stenosis. 2. Dr Dowla's second report noted that:

"The right-sided brachialgia has resolved postoperatively after th Now, she has developed more neck pain with radiation to the posterior cervical laminectomy in May 2023. Now she has developed more neck pain with radiation to the shoulders. She feels stiff and tight and has difficulty in breathing. She had an MRI of the cervical spine on 19/04/2024 which showed neural foraminal narrowing at C5-C6 level. There is no disc herniation. She is now taking Panadol and Voltaren with moderate relief."

1. Nerve conduction tests were again taken, and Dr Dowla concluded again that no evidence of focal or generalised neuropathy was shown, but that there was some consistency with a bilateral carpal tunnel syndrome.

1. Dr Kim was consulted by Dr Ducic seeking a second opinion for posterior fusion and decompression of Ms Juklen's cervical spine.[7] He noted the surgery in May 2019, and stated that this was complicated by a "cage subsidence" which ultimately required a posterior fusion "in 2023." Dr Kim noted complaints of ongoing issues of neck and bilateral shoulder symptoms. Dr Kim noted that Ms Juklen had essentially exhausted conservative management and advised further surgery, explaining that there were no guarantees and she would have to accept risks at surgery.

1. Dr James Van Gelder was the treating neurosurgeon in Ms Juklen's first bout of cervical surgery in May 2019. The respondent lodged five reports in a bundle of clinical records.[8]
2. They detailed the events that lead to Ms Juklen's application to the Commission in 2023.

1. Dr Hsu compiled a number of reports. His first was dated 15 January 2020, and recorded that Ms Juklen had been referred by Dr Ducic, and that Ms Juklen reported "neck pain, arm pain, and headaches."[9] In an attached clinical note, he reported that those were Ms Juklen's "chief complaint". Under the heading "Past surgical history" he mentioned the C5/6 anterior cervical decompression and fusion + ICBG." He noted that there was "nil significant" past medical history. Further investigations were ordered for the cervical spine.
2. On 13 February 2020, Dr Hsu reported that the CT scan which had been taken demonstrated that the interbody fusion "does not appear to be complete." He thought it could be the explanation for Ms Juklen's ongoing symptoms in the cervical spine. A bone scan was then ordered.[10]
3. On 18 March 2020, Dr Hsu reported that the bone scan indicated there had been non-union at the fusion levels. He recommended conservative treatment but said that ultimately she would "require a revision of the fusion from the posterior approach with posterior fixation and fusion." A further bone scan was recommended for two months' time.[11]
4. On 26 May 2020 Dr Hsu sent a quote for the proposed surgery to the respondent. He reported to Dr Ducic on 28 May 2020 that he had arranged for the proposed surgery.
5. On 14 December 2020 Dr Hsu again wrote to Dr Ducic, confirming that there had been non-union, but again recommending a further bone scan "to assess her current pathology further."[12]
6. On 4 January 2021 Dr Hsu wrote to Dr Ducic confirming that the latest bone scan confirmed non-union of the fusion, noting that "the symptoms are still quite significant," and again recommending surgery.[13]
7. On 4 May 2021, Dr Hsu recorded "an increase in lumbar back pain" in addition to her ongoing neck pain. He said:[14]

"The lumbar symptoms are related to her injury as well. She had a previous MRI scan from 2 years ago and her symptoms have clearly worsened with back pain and leg pain. Her most recent CT scan was performed in October 2020 and this shows a lumbar scoliosis and also loss of disc height particularly at LS-S1."

1. Dr Hsu recommended an MRI scan be taken of the lumbar spine, and on 24 June 2021 advised that the MRI scan demonstrated a L5-S1 spondylolisthesis along with loss of disc height and disc bulge. He recommended a steroid injection.[15] On 23 July 2021 he noted that Ms Juklen had been seeing Dr Needham for pain management, whilst Dr Hsu advised that he would expedite approval for the surgery (presumably for the cervical spine) and lumbar spine injections.
2. At the next consultation on 23 July 2021 Dr Hsu noted complaints of increasing headaches. He described the review as "follow-up of her ongoing neck and back pain." These consultations continued on a regular basis until August 2022, with Dr Hsu noting on

3 September 2021 that the epidural injections had been administered without relief and on

"In terms of her lumbar spine, she has significant pathology at multiple levels from L2-3, L3-4, L4-5 and L5-S1. She also has significant scoliosis due to her lumbar spine pathology. It is likely that we will need to proceed with surgical intervention in the lumbar spine which will likely be an L2 to pelvis stabilisation and fusion in the future to address both the spinal canal stenosis and also the disc pathology."

1. Following my decision of 3 April 2023, Ms Juklen underwent surgery on her cervical spine in May 2023. No operation report was filed, Dr Hsu's next report stating on 13 August 2023 that "[Ms Juklen} returns for followup after her recent x-ray. X-ray shows that the implants are in situ and she is progressing well. Her pre-operative symptoms have improved...."
2. On 7 February 2024 Dr Hsu confirmed that the cervical spine had experienced an "excellent recovery," but that increasing lumbar back pain had recently become worse. Significant lumbar pathology had been confirmed by MRI and bone scan.
3. On 15 February 2024, Dr Hsu reported that "[Ms Juklen's] cervical spinal fusion is now stable and while she still has some degree of trapezial pain, overall she is doing well. Her CT scan of the cervical spine confirms the fusion is solid."[17]
4. At that consultation Dr Hsu also noted:

"CT scan of the lumbar spine demonstrates significant intervertebral disc pathology and also degenerative scoliosis. She will likely require surgical intervention with an L3 or L2 to S1 fusion"

1. On 22 August 2024 Dr Hsu advised that the cervical surgery imaging confirmed that

Ms Juklen was "progressing well from that point of view." However he then said that there was a "significant lumbar pathology" which was responsible for the symptoms in her lower limbs. Dr Hsu noted that "we are still awaiting approval for surgical intervention in the lumbar spine, which would "certainly improve her symptoms." Dr Hsu thought that the surgery would be in the form of lumbar decompression and fusion.[18] 2. On 30 October 2024 Dr Hsu wrote to Ms Juklen's solicitors.[19] He said:

"When I first reviewed Ms Juklen in January 2020, she reported lower back and leg pain, however at the time her neck and arm symptoms were taking precedence. Back pain was rated 9/10 in severity and leg pain was rated 8/10 in severity. In May 2021 she returned for follow up of her ongoing neck pain and also an increase in lumbar back pain."

"I am unaware of any pre-existing injuries, conditions or pre-disposing factors prior to the work related injury sustained. The symptoms Ms Juklen shows correlate with the findings on examination and the injuries sustained. The work place injury is the substantial contributing factor to her condition, subsequent incapacity and the need for further surgical intervention.

Yes. I am unaware of any pre-existing injuries, conditions or pre-disposing factors prior to the workplace injury. The work place injury has materially contributed to the need for further surgical intervention."

1. On 24 November 2024, however, Dr Hsu's attention again focused on Ms Juklen's complaints regarding her neck.[20] He commenced his report by saying:

"I have reviewed Besima in follow-up again today (November 25, 2024). She returns for follow-up of her ongoing neck pain.

Her recent cervical injection unfortunately did not provide her with any long-term relief. She does have significant adjacent level symptoms at C4-5 and she will require a revision surgery over the CS-6 level as it has shown that it has not been united despite the posterior stabilisation as well. She will require C4-5 and C5-6 anterior cervical decompression and fusion as the next step in her treatment."

1. On 23 April 2025 Dr Hsu wrote a compendious summary of Ms Juklen's treatment and recommendations.[21]
2. To summarise, Dr Hsu advised:
   • that the subject accident resulted in injury to the cervical spine and subsequent C5/6 anterior cervical decompression and fusion in May 2019;
   • in January 2020 Ms Juklen complained of neck and arm pain, and headaches;
   • diagnosis was of "C5-6 non-union" and adjacent disc bulging;
   • that there was a subsequent C5-6 Anterior Cervical Decompression in May 2023;
   • there was an "excellent result" from the May 2023 surgery;
   • Ms Juklen's symptoms returned in "approximately October 2024" as a result of "adjacent segment pathology", and
   • that therefore a further C6-C6 anterior cervical decompression and fusion, with an additional anterior cervical decompression and fusion of the C4-C5 levels was reasonably necessary.
3. On 6 March 2025, Dr Hsu reported to Dr Ducic that the proposed surgery was "to address the two levels that continue to cause persistent symptoms."[22]

1. Dr Roger Pillemer, orthopaedic surgeon was retained as Ms Juklen's medico-legal expert. He wrote two reports in which he found that Ms Juklen presented as "very open and straightforward" in both his first report of 10 March 2024, and his second report of

8 April 2025.[23] In his second report he noted that his opinions "differed dramatically" from those of Dr Stephen Rimmer, also an orthopaedic surgeon, whom Dr Pillemer noted had found that Ms Juklen presented with 'overwhelmingly abnormal illness behaviour/malingering for the purposes of personal financial gain'. 2. Dr Pillemer's reports were supportive regarding both claims. He reported that the subject accident had caused "significant pain in her neck with pins and needles and numbness into both arms and into her fingers, as well as low back pain radiating to both legs" in his first report, and that Ms Juklen "had sustained injuries to her cervical and lumbar spines at the time of her fall on 19 October 2018" in his second report.[24] He noted that

Ms Juklen had suffered a brief loss of consciousness in her fall. 3. With regard to the claim for the lumbar spine, in his first report Dr Pillemer noted that

Ms Juklen had been asymptomatic prior to the subject accident. He said:[25]

"With regard to future treatment, as noted further surgical treatment has been suggested for her cervical and lumbar spines, and Ms Juklen is very keen to go ahead with surgery as she feels she is unable to put up with the pain that she has at the moment. This is obviously a decision that needs to be made between Ms Juklen and her treating specialist. In my opinion further surgery is certainly a reasonable suggestion by way of treatment in the future."

1. Dr Ducic referred Ms Juklen to Dr Jun Kim, neurosurgeon, for a second opinion regarding Dr Hsu's proposed further cervical surgery. He reported on

21 November 2024. He took a history of the subject injury and consequent cervical surgery in May 2019. He said:

"....This was complicated by a cage subsidence and [Ms Juklen] ultimately required a posterior fixation which was performed by Dr Brian Hsu in 2023. Unfortunately she has had ongoing issues of neck pain and bilateral shoulder symptoms. The pain is described as being somewhat different to a pain that she had back in 2018 and the main problem seems to be without doubt the neck pain.... Her past medical history is otherwise benign and non-contributory...

.. I reviewed Ms Juklen's MRI scans performed at Blacktown Hospital and also through PRP. There is some bony bridging through the subsided C5/6 segment although there is still moderate uptake on bone scan at the segment. The posterior screws are in good position although I was unable to see any bony fusion posteriorly across the facet joint. There is some ongoing moderate bilateral foraminal stenosis both at C4/5 and C5/6."

1. Dr Kim explained that Ms Juklen's options for management included ongoing conservative measures or surgery. He said that Ms Juklen had "essentially exhausted conservative treatments." The surgical option Dr Kim described as a limited posterior foraminotomy or a decompression and fixation to incorporate C4. He said:

"I explained that my preferred approach given the uptake on the bone scan would be to revise the posterior instrumentation and extend to C4, perform a posterior lateral fusion and a bilateral foraminotomy at both levels. I explained that given her response to surgeries so far there is certainly no guarantee and that she would have to accept risks of surgery.... I have asked Besima to have a think about this and get back to me should she wish to proceed with surgery."

1. On 29 November 2012 Dr Robert Adler, pain specialist, issued a report addressed to Dr Ducic. He said relevantly:[26]

"History I appreciate that Mrs Juklen was referred to me by Dr Biggs, Orthopaedic Surgeon, in September of this year and again in November of this year. However, the insurer preferred that she see Dr Needham, Pain Physician, and she is presently under his care. The history I obtained is that 'in August of this year, Mrs Juklen was at work cleaning a toilet, when she experienced a sudden onset of right shoulder pain with a wide radiation into the forearm, present both over the anterior and posterior aspects of the shoulder. She refers to some radiation towards the right eye and headaches, as well as parasthesiae below the elbow, although non-dermatomal."

1. On 14 June 2013, Dr Adler wrote:[27]

"I note that in January 2012 and again in May, transforaminal injection was performed at C5-C6 level, likely the C6 nerve root. The report refers to her having a positive response which was short lived although on questioning she does not recall any positive response.

Her area of numbness is over the back of the hand which suggests to me a C7 nerve root involvement. However, there is also paraesthesia in the first, second and third fingers suggestive of C6 nerve root. MRI of November 2011 is suggestive of possible right C6 nerve root irritation.

I think that Ms Juklen is going to require cervical decompression surgery for her cervico-brachial pain as there are radiculopathy features and radiological symptoms. I have suggested she consults Professor Owler and see what his thoughts are here..."

1. On 12 February 2013, Dr Ducic noted:[28]

Diagnostic Imaging requested: Whole body bone scan- persistent lower thoracic spine ( ? intercosta neuralgia) Persistent pain in bilateral anterior and lateral ribs, worse on R side Exclude rib problem. Cervical disc disease, right cervico-brachial syndrome

1. On 25 November 2013 an MRI scan of the lumbo sacral spine was taken at the behest of a Dr Daud Reza Ali.[29] It noted pathology at L2/3, L3/4, and L5/S1. The radiologist's comment was of "lumbar spondylosis as described including bilateral L5 pars defect". This defect was described as a "minimal anterior spondylolisthesis of L5/S1." The history given was "severe lower back pain since lifting two days ago. L2/3 tender. Bilateral pain radiating from back into groin."

1. Ms Burns assessed Ms Juklen on 27 November 2019 at the Westmead Pain Management Centre at Westmead Hospital. Ms Burns said:[30]

"Ms Juklen's presentation was unchanged from her initial assessment on 12.08.19, with considerable inconsistencies noted. Ms Juklen continues to present with very high levels of disability, hyper vigilance and fear avoidance. She articulates unhelpful beliefs and remains focused on the surgical opinion of her Neurosurgeon Professor Van Gelder. She is awaiting follow-up review on the 13.12.19."

1. Dr Standen is a pain physician who reported to the insurer on 9 March 2020.[31] She took a history from Ms Juklen, and recorded Ms Juklen's complaints, which included lumbar as well right flank, right upper limb, right lower limb, cervico-brachial pain, and face pain.
2. On examination, Dr Standen noted:

"On examination Ms Juklen mobilised with a mildly antalgic gait. She was holding her right hand at rest in her left hand episodically during the consultation. When distracted Ms Juklen does use the right upper limb in a normal fashion.

On examination of the upper limbs and lower limbs, there was no apparent muscle wasting. There was no fasciculation. There were no colour changes, nail or hair growth changes in the peripheries. Examination of power in the upper limb and lower limbs was inhibited by pain.. Reflexes were all intact and not brisk.

On sensory examination there was hypoaesthesia to light brush in all branches of the right trigeminal nerve, in all dermatomes of the right upper limb, right thorax, right lumbar region and right lower limb."

1. On being asked for a diagnosis, Dr Standen said:

"...It is difficult in retrospect to provide a diagnosis of all injuries as a result of the incident on 19 October 2018. Ms Juklen described the onset of left hemibody pain and significant disability at this time. She stated she had difficulty mobilising and presented to her local medical officer for parenteral analgesia."

1. Dr Standen took a history of a prior workers compensation claim for a lumbar injury in 2000:[32]

"Ms Juklen indicated she has had a previous Workers' Compensation claim in 2000 for the lumbar pain. She indicated this improved with physiotherapy and she returned to work in the normal capacity. Since the work-related injury on 19 October 2018 Ms Juklen has not returned to work in her capacity as a Child Care Worker for Blacktown City Council.

Ms Juklen stated that prior to the work-related injury occurring on 19 October 2018 she had no hemibody pain. She stated she had previously had lumbar pain more than 15 years prior to this work-related injury that had completely resolved. Last employment with Blacktown Council appears to be the current contributing factor to the current symptoms and injuries."

1. The respondent lodged the same reports in this action, dated 6 July 2020 and

24 June 2021, [33] as it did in the earlier matter before me, W5815/22.[34] For the purposes of the issues raised in this action, I note additionally Dr Perotti's findings on examination on 6 July 2020:[35]

"... She had minimal ranges of motion in her cervical spine as she found that any movement caused pain in her right face, scalp and pinna as well as associated paraesthesia. She was very pain avoidant and it was difficult to complete the neurological exam as even minor activity caused her to be in severe pain. She asked me to palpate her right wrist because she felt that there was a lump. No lump was present at the time of examination...

It was very difficult to assess muscle power in the upper or lower limbs. Ms Juklen was unable to tolerate me palpating even gently of her arms or clothing to test power. All very minor touching caused immediate right sided facial and scalp and paraesthesia. She appeared to have symmetrical power and passive movement was intact in all four limbs except she was unable to abduct or adduct her right shoulder secondary to pain. She had decreased sensation to sharp and soft touch of her entire right arm, shoulder, face, ear and scalp.

Ms Juklen's lumbar spine was not tender. She did not appear to have any muscle wasting in her lower limbs. She had a positive straight leg raise on both her legs. I attempted to test the power in her legs but Ms Juklen was in too much pain. She was unable to tolerate any neurological exam secondary to pain which she reported was radiating to her legs to her spine and up towards her upper spine. I note minor gentle touch on her legs precipitated very severe pain and spasms throughout her back. She also complained when I touched her leg that she developed pain in her face and also when I touched her left wrist she complained of pain in her face on the right-hand side."

1. In her report of 24 June 2021, Dr Perotti, in discussing Ms Juklen's progress, noted:

"... She reported that she had back pain and leg pain since her injury but she did not always discuss it..."

1. Dr Perotti reported when examining Ms Juklen on this occasion:

"I observed unusual pain responses and behaviour during the physical examination but Ms Juklen was cooperative to the best of her ability. Overall, her affect was very restricted and she replied to most of my questions in monosyllables initially which was similar to her last assessment. I noted that when she was walking that she held her head tilted to the right and her right arm flexed against her chest as if she was in a sling. Despite this, once distracted she could easily undress and redress and climb up or down from the examination couch. Her physical examination was quite difficult. She had similar behaviour to her previous assessment in June 2020."

1. Regard to Ms Juklen's present treatment, Dr Perotti said:[36]

"Ms Juklen reported that she is currently not receiving any treatment. There are no further investigations planned. I discussed her expectations with her particularly in regard to having more pain and attending a pain clinic or specialised pain program. Ms Juklen was very fixated on surgery and so she would not attend any programs because surgery is the only way she stated "to fix all these problems".

"I am concerned that Ms Juklen was very stressed during the IME assessment and it may be useful for Ms Juklen to have another IME or a physiotherapist to assess her to verify the physical examination findings. I reviewed the documentation and I was surprised to find that as an IME I am the only one documenting a full physical examination despite Ms Juklen being reviewed by a number of practitioners. I would no longer offer an intense pain management program as it will be a waste of time given that Ms Juklen has been told by her treating doctors that the program is not useful for her. These programs only work if Ms Juklen volunteers to attend. Ms Juklen is quite fixated with surgery being the only solution and is quite rigid in this belief. She has exhausted most other options."

1. Dr Rimmer issued four reports, dated 21 December 2022, 21 February 2024,

13 September 2024 and 19 December 2024.[38] 2. In his first report Dr Rimmer took a consistent history of Ms Juklen's cervical surgery of May 2009 with Dr Van Gelder. He noted that in the face of reassurance from Dr Van Gelder that her symptoms would ultimately resolve, Ms Juklen sought a second opinion from Dr Hsu. Dr Rimmer noted that the first reference to lumbar back pain made to

Dr Hsu was in May 2021. He noted that Ms Juklen denied any previous history to, relevantly, the cervical spine or her lumbar spine. 3. On examination, Dr Rimmer said:

At the commencement of the formal clinical examination, Ms Juklen began to hyperventilate for reasons I could not understand."

1. Dr Rimmer was asked whether Ms Juklen's employment had been a substantial contributing factor to her condition. Dr Rimmer answered:

"Highly unlikely, but I cannot state this with complete accuracy regarding the cervical spine as I have only seen her postoperatively. With regard to other anatomic sites, initially yes, given the mechanism of injury, but this has well and truly ceased to be."

1. Earlier in his report, Dr Rimmer listed the "anatomical sites" that were injured in the initial fall:[39]

1. In his second report dated 21 February 2024, Dr Rimmer noted that further surgery to the cervical spine had occurred on 16 May 2023. Ms Juklen told Dr Rimmer that "she had ongoing pain and stiffness in her neck, radiating to both shoulders!!"
2. Dr Rimmer noted that Dr Hsu had arranged for investigations of the lumbar spine and referred Ms Juklen for two L5/S1 epidural injections which had not been of any benefit. He noted Dr Hsu's opinion of 18 November 2021 that surgical intervention for the lumbar spine was indicated.
3. Dr Rimmer referred when discussing Ms Juklen's past history, to various entries in

Dr Ducic's notes, which indicated complaints of prior injuries to the right shoulder, cervical spine and lumbar spine between 2011 and 2014. Dr Rimmer noted that

Ms Juklen denied previous injury to those areas and concluded that she was "highly inaccurate/dishonest!!" 4. On examination Dr Rimmer noted that firm palpation throughout the lumbar spine was non-tender. He noted that MRI scans of 10 December 2018 and 11 November 2023 demonstrated grade 1 L5/S1 spondylolisthesis and multilevel disc degeneration. 5. Dr Rimmer noted that, "since last assessed, unbelievably a posterior C5/6 fusion was approved by Ms Juklen's insurance company and not surprisingly this has failed."

Dr Rimmer diagnosed that both the cervical and lumbar spine condition were "entirely constitutional." He commented that Ms Juklen had never sustained a lumbar spine injury at the time of the subject incident, and that no further radiological investigations and/or surgical intervention was required. 6. In his report dated 13 September 2024 Dr Rimmer recorded a further denial by

Ms Juklen that she had a previous history regarding relevantly the cervical or lumbar spine. Dr Rimmer again referred to the pre-injury entries in the GP notes and said:

"All of which clearly shows Ms Juklen has had an extensive/significant pre-existing history of pain to multiple anatomical sites prior to the subject accident indicating the history provided by Ms Juklen is highly inaccurate/fraudulent/completely dishonest."

1. The examination of the lumbar spine Dr Rimmer recorded as being non-tender to firm palpation throughout, and that she had an active range of motion which were carried out with minimal discomfort. His diagnosis was:

"Overwhelmingly abnormal illness behaviour/malingering for the purpose of personal financial gain."

1. Dr Rimmer thought that both the cervical and lumbar spine were affected by degenerative conditions, spondylosis in respect of the cervical spine and a degenerative osteoarthritis in respect of the lumbar spine.
2. When asked whether the pathology in the lumbar spine had been caused, aggravated or accelerated by the subject incident, Dr Rimmer did not agree, noting that neither did

Dr Perotti. 3. Dr Rimmer's final report of 19 December 2024 was a file report in which he noted that Ms Juklen had experienced a "devastating failure of the cervical spine fusions x 2." He noted further that Ms Juklen had recorded pre-existing symptomatology in the cervical / lumbar spine and the right shoulder but that she had denied such. 4. Dr Rimmer confirmed that the pathology in the lumbar spine had been initially aggravated, but that, given the timeframe, such an aggravation would have ceased.

1. As can be seen, this case involves the consideration of entries in the clinical notes spanning many years. Mr Beran referred to them in some detail, and, given that these are supposed to be "short" reasons, I propose to summarise his submissions, hopefully emphasising the main points he relies on. His submissions have been recorded, and indeed transcribed, and are available. I have above copied the relevant entries.
2. Mr Beran identified accurately that he did not need to prove injury to the cervical spine, but had only to prove that the proposed surgery was reasonably necessary. With regard to the claim for injury to the lumbar spine, which has been declined in numerous dispute notices, he said he needed to identify the injury on the balance of probabilities, and then to show that the proposed lumbar surgery was reasonably necessary.
3. In acknowledging there was a large amount of evidence, Mr Beran took the sensible course of referring to it by the relevant page number in the documentation. He referred to the incident report of 22 October 2018, and the claim form of the following day, 23 October 2008. He noted that the claim form clearly identified an injury to the back.
4. Mr Beran firstly referred to the factual evidence, referring to the three statements made by Ms Juklen, which have relevantly been reproduced above. He noted Ms Juklen's acknowledgement that she had injured her back whilst working for Westmead Hospital in 2000, then related her description of the incident on 18 October 2018, and the subsequent development of further symptoms over that weekend, which included a complaint about her back. Mr Beran referred to Ms Juklen's evidence that she had been referred for a CT scan of her back at her first consultation with Dr Ducic on 19 October 2018, and to further references nominating the lower back as an injury.
5. Mr Beran referred to Ms Juklen's second statement dated 2 September 2022, and the assertion that Ms Juklen's back had been essentially asymptomatic prior to the subject incident. Mr Beran drew attention to Ms Juklen's statement that the main focus was on her neck but that her lower back was also in significant pain. Mr Beran referred to her surgical treatment by Professor Van Gelder and that she was then referred to Dr Hsu and Dr Hsu's recommendation for further surgery at the cervical spine level.
6. Mr Beran noted the continuing complaints of pain in her third statement of 15 May 2025, which noted the surgery on 16 May 2023 and her continuing problems with various parts of her body, including the lower back. Mr Beran referred to the further advice of Dr Hsu that he should operate further on her cervical spine and additionally on her lumbar spine.
7. Mr Beran then turned his attention to the clinical records of the Blacktown Family Medical Centre. He acknowledged that complaints of lumbosacral back pain were noted on

16 February 2013, and over the following entries through to 6 January 2014. After that, he submitted there was no record concerning the lower back until the date of injury,

19 October 2018. 8. Mr Beran addressed the various entries within these notes concerning the lower back, but then turned his attention to the evidence of Dr Van Gelder. 9. Dr Van Gelder had noted complaints of back pain on 21 December 2018, but, said Mr Beran, it was fair to say that Dr Van Gelder did not regard it as a significant injury. Nonetheless,

Mr Beran submitted, it was proof that there had been a record of back pain. Mr Beran referred to Dr Van Gelder's subsequent reports which were concerned with the cervical spine. Mr Beran said that following the surgery in May 2019, a complaint was noted by

Dr Van Gelder of back pain, and a CT scan was taken of the lumbosacral spine. A further complaint was noted on 1 July 2019, but none were made thereafter, Dr Van Gelder's last report being dated 17 December 2019. However, a report of Dr Taylor of 30 January 2019 noted complaints of widespread pain which extended to the lumbar spine. 10. Mr Beran then turned his attention to the reports of Dr Hsu, beginning with his report of

15 January 2020. Mr Beran said that there was no record of complaints regarding the lumbar spine from Dr Hsu until 4 May 2021. However Mr Beran said that there was a further complaint about the lumbar spine on 2 December 2020, when Dr Ducic referred Ms Juklen to Dr Needham. Mr Beran said that Dr Rimmer's assumption that there had been a 16 month delay in the recording of lumbosacral symptoms had not been established. It could be concluded, Mr Beran said, that this evidence was consistent with Ms Juklen's statement that she was suffering low back symptoms as well, but that the focus was on her neck. 11. On 18 November 2021 Dr Hsu recommended surgical intervention in the lumbar spine,

Mr Beran said, and later reports evidenced an ongoing deterioration. Dr Hsu's attention focused back on the cervical spine until 16 November 2023 when he noted a complaint of increasing back pain and that MRI scan and shown significant lumbar intervertebral disc pathology. 12. Mr Beran noted Dr Hsu's report of 29 November 2023 in which Dr Hsu stated that the pathology showed in the investigations was due to her work-related injury. Mr Beran noted the continuing reports Dr Hsu up to 22 August 2024, when he again recommended lumbar decompression and fusion. Mr Beran referred to Dr Hsu's statement in his report of

30 October 24, that Ms Juklen had reported lower back and leg pain when he first saw her in January 2020. Mr Beran also acknowledged that Dr Hsu stated that he was unaware of any pre-existing injury or condition in Ms Juklen's lumbar spine, but Mr Beran noted that the nature of the lumbar injury was of the aggravation of pre-existing condition, and that

Ms Juklen had been asymptomatic at the time of the subject incident. 13. With regard to the proposed surgery to the cervical spine, Mr Beran referred to Dr Hsu's opinion in his report of 25 November 2024 in which, he submitted, Dr Hsu explained why revision surgery was necessary. Mr Beran also referred to Dr Hsu's compendious report of 23 April 2025 and Dr Hsu's opinion that without surgical treatment Ms Juklen could expect permanent functional deficit and going pain. 14. Mr Beran then referred to the undated reports of Dr Ducic, which he noted had been supplied in response to a solicitor's request dated 29 October 2024 regarding the lumbar spine, and a further report from Dr Ducic of 23 March 2025 regarding the cervical spine. (In fact the dates are reversed reversed). Mr Beran submitted quite accurately that Dr Ducic supported the further cervical surgery and the proposed lumbar surgery. Mr Beran also referred to the report of Dr Kim which was obtained as a second opinion, and his views about both the radiology and the proposed cervical surgery. 15. Mr Beran then referred to what he described as "a whole bunch of medicolegal reports," some of which had been before me in the 2023 matter. He referred to the report of

Dr Standen, noting that a history be taken of a prior episode of lumbar pain more than 15 years prior to the subject incident. Mr Beran referred to the reports of Dr Perotti, noting that I had not accepted her opinion in the 2023 matter. Mr Beran further noted that Dr Perotti had said that Ms Juklen had exhausted most other options for treatment. 16. With regard to Dr Rimmer's opinion, Mr Beran submitted that it had been based on a misapprehension of the history, as Dr Rimmer had said there was a 16-month gap between the first consultation about the back with Dr Hsu and his subsequent recommendations.

Mr Beran submitted that this history was incorrect. Mr Beran nonetheless submitted that

Dr Rimmer's opinion was inconsistent with the denial of liability by the respondent, as he had conceded that employment had been a substantial contributing factor to "other anatomical sites" which included the lumbar spine. Mr Beran noted that Dr Rimmer "doesn't like the fact that the applicant's had two cervical spine fusions attempts which have failed, remembering the fusion hasn't necessarily failed, but the applicant has adjacent segment disease." 17. Mr Beran referred to the reports of Dr Pillemer, which he said were "in lockstep" with the reports of Dr Hsu and Dr Kim in saying both that the lumbar spine was injured in the subject incident, and that the proposed surgery to the lumbar spine, and the cervical spine, were reasonably necessary. 18. Mr Beran concluded his submissions by referring to the Diab test, saying that there was no alternate option for treatment besides pain management, which Ms Juklen had refused. There were, Mr Beran said, "multiple neurosurgeons" who said the surgery was appropriate and the doctors were saying that it will be effective. Mr Beran noted that cervical and lumbar fusion operations were well and truly accepted in the medical fraternity. 19. Mr Beran submitted that the denial of the lumbar injury could not be accepted as there was clear evidence that Ms Juklen had aggravated her lumbar spine in the course of the accident. Mr Beran noted that Dr Rimmer had accepted that, although he later altered his opinion without giving reasons.

1. Mr Stiles submitted that it was clear that Ms Juklen had pre-existing symptoms in both the neck and back, going back many years prior to the subject incident. He referred to a report of 14 June 2012 by Dr Adler which then was discussing the question of a cervical decompression. The clinical notes, Mr Stiles said, demonstrated from February 2013 onwards compressive low back pain and lumbosacral disc disease.
2. Mr Stiles noted that liability for the injury to the cervical spine had been accepted but submitted that there was a critical MRI lumbar scan dated 25 November 2013, addressed to a Dr Ali which recorded a history of severe low back pain since lifting two days earlier. The pathology revealed in that MRI was significant, Mr Stiles submitted, and had not been seen by either Dr Hsu or Dr Pillemer, nor for that matter by the experts retained by Mr Stile's client. Mr Stiles submitted however that the pathology that was later revealed on 22 October 2018 in the CT scan was similar to that shown in the 2013 MRI scan. The MRI scan of

14 December 2018 also demonstrated similar pathology. Mr Stiles noted that there had been a whole body bone scan on 8 November 2019, which had demonstrated an otherwise normal appearance of the lumbar spine and sacroiliac joints. 3. Mr Stiles referred to the evidence of Dr Vanessa Perotti, noting that her first opinion of July 2020 was largely focused on the need for surgery to the cervical spine but Mr Stiles said it was significant that she took no history in either that report nor the following report of any past cervical or lumbar problems. Mr Stiles also noted that Dr Perotti commented in both reports about Ms Juklen's unusual pain behaviour on examination, and stated that she could not recommend surgery in view of that presentation. Mr Stiles commented that, although I had dealt with Dr Perotti's opinion in my earlier 2023 decision, it was relevant that she advised that pain management would be a waste of time because Ms Juklen's treating doctors were telling her that surgery was the way forward, and Ms Juklen had indicated that she wanted to proceed with the surgery. 4. Mr Stiles referred to the lumbar MRI scan of 30 May 2021, which he submitted showed the same pathology as was demonstrated in 2013. A CT scan of 25 October 2021 also demonstrated the same pathology, Mr Stiles said. When Dr Hsu first focused on the lumbar spine in his report of 18 November 2021, he anticipated that surgery be necessary on the lumbar spine, without any knowledge of the pre-existing history. It followed, Mr Stiles argued, Dr Hsu concluded that the pathology he identified was a consequence of the subject incident. 5. Turning to Dr Rimmer's first report dated 21 December 2022, Mr Stiles submitted that the focus at that stage had been on the cervical spine and although Mr Beran had sought some advantage from Dr Rimmer's comments about employment being the main contributing factor to the other anatomical sites, including the lumbar spine, Dr Rimmer did not have any detail at that point about the lumbar spine. After my decision in 2023, a further MRI scan of the lumbar spine was taken on 11 November 2023 which Mr Stiles submitted again was in the same terms as that in 2013. He referred also to a bone scan of 24 November 2023 in similar terms, which Dr Hsu, in his report of 29 November 2023, said confirmed significant lumbar pathology which was due to Ms Juklen's work-related injury. 6. A further CT scan of the lumbar spine was taken on 30 January 2024, which Mr Stiles noted was before Dr Dowla on 16 February 2024. Dr Dowla had found that the nerve conduction studies showed no evidence of focal or generalised neuropathy and advised that Ms Juklen would benefit from physiotherapy and analgesia, Mr Stiles said. 7. Dr Rimmer's second report of 21 February 2024, Mr Stiles submitted, noted that Ms Juklen denied previous neck, back or right shoulder injuries, which Dr Rimmer contrasted with the clinical notes before him. Whilst he did not have the MRI scan from 2013, the clinical notes were the basis of his finding that the lumbar pathology was not either caused or aggravated by the subject incident. Dr Perotti, Mr Stiles said, had the same view. 8. Regarding the cervical spine, Mr Stiles referred to a bone scan of 20 May 2024 which he submitted did not indicate any significant abnormalities and was relevant to the question of the claim for further revisionary surgery in the cervical spine. Dr Hsu justified his claim that further surgery was necessary in the cervical spine on a diagnosis of adjacent segment disease Mr Stiles submitted. However the latest bone scan of 20 May 2024 made no reference to any pathology at C4, nor was indicative of the presence of adjacent segment disease. 9. A further report from Dr Dowla dated 22 May 2024 reported on further nerve conduction studies that Dr Dowla had carried out. Mr Stiles said that again Dr Dowla found no evidence of focal or generalised neuropathy and spoke about carpal tunnel syndrome. Mr Stiles contrasted that opinion with the later opinion of Dr Hsu dated 22 August 2024 in which

Dr Hsu commented that recent neurology opinion confirmed that the lower limb symptoms were related to the lumbar spine pathology. Mr Stiles submitted that chronologically, that recent neurology opinion was probably that of Dr Dowla, and if it were, on any fair reading of Dr Dowla's opinion, Dr Hsu's description was not what Dr Dowla had said. Dr Dowla did not confirm that the symptoms in the lower limbs were related to the lumbar spine. 10. Mr Stiles then referred to the second report from Dr Rimmer dated 13 September 2024, noting that Dr Rimmer referred back to Dr Perotti's original conclusions, and that on clinical examination Dr Rimmer advised that Ms Juklen's lumbar spine was essentially normal.

Dr Rimmer "reiterated" that no injury occurred to the lumbar spine, and Mr Stiles noted his advice that there were too many "red flags" for further surgery to be indicated. 11. There was a further MRI scan of the cervical spine referred to by Mr Stiles, that of

21 September 2024. He noted its comments and particularly the presence of the artefact from the previous surgery at C5/6 together with the conclusion by the radiologist that there was bilateral foraminal stenosis requiring co-relation clinically. Mr Stiles noted that there was no specific reference to any pathology at C4/5 save for stenosis, which was present throughout the spine. 12. Dr Hsu's report on 30 October 2020 referred to a CT scan performed in October 2020 and significantly, argued Mr Stiles, Dr Hsu said that he was unaware of any pre-existing injuries, conditions, or predisposing factors. Mr Stiles said that the remainder of Dr Hsu's report were concerned with the need for surgery and did not take matters any further. There was however the report of Dr Kim of 21 November 2024 about which Mr Stiles submitted that it did not really deal with the benefits will likely outcomes of the further revisionary surgery or whether it was likely to result in any better or different outcome of the prior to surgeries. 13. Dr Hsu did not deal with this aspect of the claim either, Mr Stiles submitted. Whilst in his report of 25 November 2024 he referred to significant adjacent level symptoms at C4/5, he did not refer to the MRI scan a month or so earlier, which did not really show any pathology or anything at C4/5, and he did not deal with the likely benefits or outcomes from his proposed surgery. 14. Dr Rimmer wrote a file report on 19 December 2024, which noted that the previous two cervical fusion procedures have not been successful, and that the further proposed surgery to the cervical and lumbar areas of the spine would also result in failure. Mr Stiles noted that Dr Rimmer had conceded that there was initially an aggravation of the lumbar spine, but that it had ceased. That was inconsistent with his earlier opinion, Mr Stiles said, but in any event Dr Rimmer nonetheless advised that the surgery should be avoided. 15. Mr Stiles referred to the reports of Dr Pillemer, saying that whilst Dr Pillemer noted that

Ms Juklen was very keen to go ahead with the surgery, he did not address whether it was reasonably necessary. Dr Pillemer simply said that such was a decision to be made between Ms Juklen and her treating specialist. Although he said it was reasonably necessary, he did not give any reasons as to how that was so. He did not explain how it would alleviate her symptoms, improve her activities of daily living or give her any potential return to work or other "of the usual things that you would expect." Mr Stiles submitted that Dr Pillemer had simply "passed the buck" back to Dr Hsu. 16. With regard to Dr Hsu's final report dated 23 April 2025, Mr Stiles referred to Dr Hsu's opinion that the bone scan confirmed the presence of significant lumbar pathology due to a work-related injury. Mr Stiles again emphasised that Dr Hsu did not have any history of

Ms Juklen's pre-existing injuries or conditions, and Mr Stiles argued that Dr Hsu did not identify the significant pathology to which he was referring. Moreover, Dr Hsu simply advised that the surgery was likely to improve pain and function, Mr Stiles said, but he argued that

Dr Hsu did not explain how that would occur particularly in the context of the two previous cervical procedures. 17. In concluding submissions, Mr Stiles acknowledged that Dr Rimmer ultimately was of the view that there had been an aggravation of the lumbar degenerative condition, but the evidence demonstrated that the pathology had been present for a very long time and there had been no significant or acute change in that pathology. 18. As to the question of whether either proposed surgery was reasonably necessary Mr Stiles submitted that there was no evidence to suggest that either operation would improve symptoms, notwithstanding Dr Hsu' opinion, in the light of the two failed previous cervical fusions. Dr Rimmer had concluded there would be no difference on this occasion and there was a lack of evidence as to the usual considerations regarding reasonable necessity from both Dr Hsu and Dr Pillemer. Dr Dowla has suggested alternative treatment of physiotherapy and pain management. Dr Perotti ruled out pain management because Ms Juklen was "fixated on having surgery" but in any event the big question as described by Mr Stiles was effectiveness. He asked a number of rhetorical questions in that regard and submitted that past history would indicate that the proposed surgical treatments would not be effective. 19. Mr Stiles submitted that despite what Dr Hsu said about investigations, whether they be the bone scans, the MRI scans all the nerve conduction studies, there was no evidence of non-fusion. Nor was there evidence of pathology at the C4/5 level to support the adjacent segment disorder diagnosis. There was, Mr Stiles concluded, no evidence that the proposed surgeries would be effective.

1. Mr Beran firstly responded to the criticisms of Ms Juklen's case regarding the lumbar spine. Mr Stiles argument was based on the proposition that the pathology in the lumbar spine had not changed since 2013 and that therefore there had been no injury. Dr Pillemer stated clearly that the nature of the injury to the lumbar spine was an aggravation, with work being the main contributing factor. The evidence showed that there was an increase in symptoms following the subject incident and that those symptoms had not ceased. That was sufficient, Mr Beran said, to establish an entitlement. He relied also on the opinion of Dr Rimmer to that effect. There was no evidence that the aggravation had ceased, about which the onus was on the respondent, Mr Beran said.
2. With regard to Mr Stiles submissions regarding the MRI scan of 21 September 2024,

Mr Beran submitted that the radiologist had used the expression "severe foraminal stenosis" at the relevant cervical discs. Although Dr Kim had described the adjacent segment disease as "moderate" nonetheless it was of sufficient severity that it needed to be treated surgically. Mr Beran suggested that whilst Mr Stiles undoubtedly had an ability to review radiology, "we should leave it up to the experts."

1. The Diab test, as it is commonly referred to, comes from Roche DP's dicta in Diab v NRMA Ltd,[40] in which the learned DP considered the authorities relating to the phrase "reasonably necessary" from [76], and drew up a number of indicators at [88]:

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

1. 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."
2. These criteria have been described as merely 'useful heads for consideration' and the essential question is whether the treatment was reasonably necessary.[41]

1. As has been seen, the contents of clinical notes have attained some relevance in the parties' respective positions. In Mason v Demasi [42] Basten JA at [2] urged caution when dealing with inconsistencies based upon clinical notes, which DP Michael Snell referred to in Qannadian v Bartter Enterprises Pty Limited[43] [2016] NSWWCCPD 50 at [53], saying:

"35. Mason is from a line of appellate authority dealing with the use of clinical notes in the fact finding process. A number of these authorities are referred to in Winter v New South Wales Police Force [2010] NSWWCCPD 121 (which was reversed on appeal, on a different basis), where Roche DP at [183] said:

'It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; King v Collins [2007] NSWCA 122 at [34]-[36]).

The authorities (including Mason) do not preclude the use of such evidence in the fact finding process, nor do they provide that such evidence should not be relied on, in the absence of evidence from the author of the clinical notes. The authorities require the use of caution by a fact finder, including having regard to the circumstances in which such notes are brought into existence'."

1. There are three issues that are in dispute, as noted above. They are the injury to the lumbar spine, and if such is established, whether the proposed surgical treatment to both the lumbar and cervical spine is reasonably necessary.
2. The issue as to injury to the lumbar spine may be dealt with shortly. There was no shortage of contemporaneous evidence regarding the actual event. Ms Juklen's statement of

7 November 2018 described how the incident occurred when she fell as she tripped over a bench whilst holding a laptop. Her account was confirmed by Ms Goodwin in the injury notification form that was signed before Ms Juklen left work to see Dr Ducic.[44] In her statement of 7 November 2018, Ms Juklen said that immediately after her fall, she had sharp pain around her stomach, ribs and chest area, and could not breathe. She also described strong neck pain and wrist pain. She said that Ms Goodwin was putting the battery back in the laptop when she gathered herself together. The injury notification form noted injury to the left rib and the left shin. These facts indicate that Ms Juklen tripped over the bench, striking her left shin as she did, and fell with some force so that the left side of her body in the rib area was struck when she fell. 3. Ms Juklen immediately took herself to see her doctor, Dr Ducic, at Blacktown Family Medical Centre. She thereafter experienced an onset of a catalogue of symptoms of sufficient gravity to cause her to revisit Dr Ducic on the following day, Saturday 20 October 2018. Her symptoms expanded thereafter until on Monday 22 October 2018 she was complaining to

Dr Ducic of a wide area of pain, described in the workers compensation claim form she completed on 23 October 2018 as:[45]

"Fall down injury - head, neck, shoulder, back - wrist - all the left side of the body -hip ribs [sic] right side - right wrist - condition - main pain is neck & head, ribs - back & both wrists."

1. It is quite probable that Ms Juklen would have experienced the onset of her symptoms in the manner she described, and I note no submissions were made to the contrary. Ms Juklen was then 57 years old and had experienced a significant fall. Dr Ducic had been her GP since 2011, and Dr Ducic was also concerned, as she caused investigations to be carried out over a wide range of Ms Juklen's body, including her wrists, her abdomen, her heart and her brain in addition to the whole of her spine.
2. Mr Stiles could only argue that the appearance of Ms Juklen's lumbar spine in the investigations that were taken following the subject incident appeared to be no different to earlier MRI scan dated 25 November 2013, and that a comparison of that scan with subsequent scans of 22 October 2018, 14 December 2018, 30 May 2021, 25 October 2021, 11 November 2023, 24 November 2023 and 30 January 2024 did not appear to show any change in pathology. His submission was that, as Dr Hsu and Dr Pillemer (and, for that matter, Dr Rimmer) were unaware of the 25 November 2013 scan, it could not be said that Ms Juklen's lumbar pathology had been either caused or aggravated by the subject incident. Mr Stiles had no expert evidence on which to confirm his submission.
3. Whilst, as indicated, the clinical notes did demonstrate prior lumbar problems - indeed

Ms Juklen herself related in her 7 November 2018 statement that she had suffered a significant lumbar injury in 2000 which had kept her off work till 2006 - Ms Juklen had been asymptomatic in her lower back since entries in the clinical notes of February 2013,[46] and it is clear that the circumstances of the subject incident caused her lumbar spine to become symptomatic. 4. Ms Juklen's application to have the lumbar surgery declared reasonably necessary however is a different question and it is convenient to deal with it in conjunction with her application to have the further cervical surgery proposed by Dr Hsu also declared reasonably necessary. 5. In my 2023 decision I said, from [158]:[47]

"... The issue in the present case concerned the presence of a radiographic artefact that I have now found indicated a failure of the fusion procedure of 6 May 2019....

159. It is clear that Ms Junklen believed that the non-union was the cause of some of her symptoms, and that belief has been vindicated. Her presentation to her medical advisors after the proposed surgery will determine whether further treatment is required and, if her florid symptoms persist, such treatment may well involve pain management.

162. I have little hesitation in finding the proposed surgery to be reasonably necessary. Whilst alternative treatment is clearly available, I am not satisfied that it would have any potential effectiveness until the non-union is attended to. The potential effectiveness of the recommended surgery on the other hand is significant, as it would attend to the principal source of the symptoms caused by the non-union. There may well be continuing symptoms which need management, but they cannot be properly identified until the results of the recommended surgery are known."

1. The first difficulty with Ms Juklen's application regarding the cervical spine, is that the results of the recommended surgery are still not known. Dr Hsu's evidence regarding the approved surgery did not indicate even when the surgery was performed, his first report about it being dated 13 August 2023, as indicated above. Further reports of 7 February 2024,

15 February 2024, 22 August 2024 all indicated that the result of the surgery constituted an "excellent recovery," that the "cervical spinal fusion is now stable," that a "CT scan of the cervical spine confirms the fusion is solid" and that "imaging from the cervical surgery confirms she is progressing well." 2. There has been no operation report lodged, and Dr Hsu made no connection between the surgery he performed on 16 May 2023, (the date as reported by Dr Rimmer), and the development of the alleged adjacent segment disease, as he failed to mention what he found on operation and advise whether there had been non-union which might explain Ms Juklen's alleged condition. 3. Thus Dr Hsu reported positive findings about the result of his 16 May 2023 surgery up to

24 November 2024, which he described variously as "excellent" and a "stable" and "solid" fusion. She was "progressing well" until on 24 November 2024 Dr Hsu reported that

Ms Juklen had "significant adjacent level symptoms at C4/5 and would require revision surgery over the C5/6 level". His explanation was:[48]

"....she will require a revision surgery over the C5-6 level as it has shown that it has not been united despite the posterior stabilisation as well. She will require C4-5 and C5-6 anterior cervical decompression and fusion as the next step in her treatment"

1. Ms Juklen, when Dr Hsu last reported on 22 August 2024, was "progressing well". Dr Hsu did not describe what the adjacent level symptoms were, neither did he refer to the basis of his finding that "it has been shown that it has not been united," by which I assume he meant in context that "it" had shown that the C5/6 level had not been united. Dr Hsu did not describe what he meant in his reference to "it" and he did not explain what had occurred for him to change his assessment of the fusion from being "stable" and "solid."
2. Mr Stiles submitted that the last available MRI scan of the cervical spine dated

13 September did not show any particular pathology that was different to earlier scans. The scan report said, to repeat:[49]

"Alignment is normal. No compression fracture. No destructive changes. There is artefact posteriorly from previous surgery and also at the disc level of C5-CG.

Minimal disc bulges through all cervical levels. These do not compress the cord and the cord signal is normal. No syrinx. On imaging through the foramina on the right demonstrates severe foraminal stenosis at C3-C4, C4-C5, C5-CG and C6-C7.

Imaging through the foramina on the left demonstrates severe foraminal stenosis C4-C5,C5-C6 and C6-C7.

Bilateral foraminal stenosis requiring correlation clinically"

1. Mr Beran submitted that it may have been the severe foraminal stenosis that was relevant to Dr Hsu's reasoning, but the short answer is that Dr Hsu did not explain either what the additional symptoms were, or the basis for his finding that there was an adjacent segment pathology.
2. The best evidence is that of Dr Jun Kim, whose report of 21 November 2024 stated, as noted above, that Ms Juklen's C5/6 anterior cervical discectomy and fusion in May 2019 had been "complicated by a cage subsidence" and that a posterior fixation was ultimately performed by Dr Hsu. To an extent, Dr Kim's report referred to evidence that should have been supplied by Dr Hsu. He noted pathology on the MRI scans and advised that there was some bony bridging through the subsided C5/6 segment, although still with moderate bony uptake. He thought the posterior screws were in good position but was unable to see any bony uptake posteriorly across the facet joint. He said there was some ongoing bilateral foraminal stenosis.
3. I note the reference to a "cage subsidence." It was not mentioned by Dr Hsu and may or may not have been associated with the artefact that was the subject of my declaration of 2023. In any event, the term "cage subsidence", whilst perhaps having a well-known connotation amongst surgeons, does not explain satisfactorily what Dr Hsu found on operation on

16 May 2023. 4. In the final analysis, the determination of whether the proposed surgery to the cervical spine is reasonably necessary, is to be decided by reference to the Diab test. The cost of the proposed treatment is not an issue, and neither is the acceptance by medical experts that surgical treatment is appropriate, as has been demonstrated by Dr Hsu, Dr Van Gelder,

Dr Pillemer and Dr Kim. The real question is whether it will be actually or potentially effective. 5. It is difficult also to make a decision on the appropriateness of the suggested surgery in view of the fact that there was no operation report with regard to the surgery on 16 May 2023. There was another reference to an artefact in the MRI of 13 September 2024, and an artefact which might have indicated non-union was the basis of the declaration in 2023 that the proposed cervical surgery had been reasonably necessary. There was no satisfactory explanation as to what was found on operation, and there was no apparent link between the onset of

Ms Juklen's symptoms sometime after August 2024 recorded by Dr Hsu on

24 November 2024 with that surgery. I am not satisfied that Dr Hsu's recommendation is soundly based in any event. 6. I am also unpersuaded that the surgery will be effective, as I am left in some doubt as to whether Ms Juklen in fact has an adjacent segment pathology and accordingly am unable to say that the proposed cervical surgery will have any potential positive effect in any event. Further, neither Dr Hsu nor Dr Kim addressed the actual or potential effectiveness of the treatment. As noted, Dr Hsu said that the proposed surgery was "to address the two levels that continue to cause persistent symptoms," which was unhelpful. Dr Pillemer on

8 April 2025, said that the decision needed to be made between Ms Juklen and Dr Hsu, after noting that Ms Juklen was "very keen to go ahead with surgery." Dr Pillemer's views included surgery on both her lumbar and cervical spine, which is not a convincing endorsement of either proposed surgical procedures. 7. As to the proposed lumbar surgery, Dr Hsu was unaware that Ms Juklen had a past history, including a lumbar injury that had Ms Juklen off work for six years from 2000. He accordingly was unable to reach an opinion that was based on the relevant facts as to whether such surgery was either appropriate or would be effective. In any event, the latter indicator was not considered beyond the statement by Dr Hsu, above, that the two levels would be addressed. 8. It is also relevant to note that Ms Juklen has not been amenable to any other form of treatment. Her belief that surgery was her only treatment option was remarked on by

Ms Burns as early as 27 November 2019 and Dr Perotti on 24 June 2021. Ms Juklen has also been quite inconsistent in her presentation, in respect of which there were some aspects of Dr Rimmer's reporting that were perhaps unnecessary. Whilst I accept that Ms Juklen did aggravate her pre-existing lumbar condition as a result of the subject incident, as found by him, I also accept that her presentation to both him and other doctors was unreliable and, at times, quite histrionic. That presentation, however, did not justify the allegation that

Ms Juklen necessarily was fraudulent, malingering, or seeking financial gain. Ms Juklen's determination to undergo repeated surgery perhaps indicates no more, for example, than a misplaced faith in the power of a surgeon to return her to health. Dr Perotti described

Ms Juklen's approach as a "fixation," which, as I found in my 2023 decision, proved to have a sound basis then, as it does now. 9. I accordingly make the above orders.

[1] Juklen v Blacktown City Council [2023] NSWPIC 138.

[7] ARD page 276. Report dated 21 November 2024.

[33] Now at ARD pages 143 and 136 respectively.

[34] SOR at ARD page 157. Dr Perotti's evidence considered from page 171.

[38] ARD pages 129, 121, 110, and 107 respectively.

[40] [2014] NSWWCCPD 72.

[41] Couch v Electus Distribution Pty Ltd [2023] NSWPICPD 8 at [77].

[42] [2009] NSW CA 227.

[43] [2016] NSWWCCPD 50.