1. The issue identified by the parties that requires determination is whether it is reasonably necessary for the applicant to receive lumbar spine surgery.

1. The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD with an attachment of 481 pages, and

(b) Reply with 47 pages attached (Reply).

1. There was no application to call oral evidence or cross-examine any witness at the hearing.

1. The applicant's evidence as contained in her 14 August 2025 statement is that she injured her back while moving a heavy pallet at work on 15 January 2023. After a period of recovery, she "returned to work on a graduated return-to-work plan in late April 2023" that was subject to various restrictions.[1] Pain associated with the injury persisted and the applicant received a cortisone injection that "did not provide any relief" so she was referred to Dr Andrew Kam, neurosurgeon, for specialist treatment.[2] She has since also been referred to Dr Jane Standen for conservative pain management.[3] The applicant recounts having received radiofrequency ablation treatment on three occasions and a ketamine infusion to treat her back pain.[4] The applicant considers there has been "more than 12 months of failed conservative management" and:[5]

"Despite my persistence, my functional capacity has not improved since the injury. I still live with chronic, unrelenting back pain, disturbed sleep, reduced mobility, and an inability to perform simple domestic and social tasks. I cannot travel, walk long distances, attend the gym, do household chores independently, or maintain an active social life."

1. The applicant attended a consultation with Dr Kam on 10 August 2023 and, referring to an MRI scan,[6] he identified an annular tear at the L4/5 level and a loss of disc height at the L3/4 level. It was considered at the time that the applicant did not require surgery and Dr Kam recommended she receive an "L4/5 interlaminar epidural block to try and reduce the pain" that he thought may be originating from the annular tearing.[7]
2. At their next consultation, on 17 October 2023, the applicant's symptoms had "failed to improve despite having the steroid injection". Dr Kam recommended referral to a specialist for pain management and that the applicant commence a "significant weight loss program". Dr Kam indicated that after those occurred, he would "be more than happy to consider her for lumbar fusion surgery to address the L3/4, L4/5 and potentially the L5/S1 level".[8]
3. On 20 August 2024, Dr Kam reported the applicant completed a pain management course with Dr Standen and had lost nearly 130kg of weight. An MRI scan was referred to by Dr Kam at that time:[9]

"The repeat MRI scan of her lumbar spine performed at Blacktown Hospital shows the same degenerative changes involving the L3/4 and L4/5 levels as well as the L5/S1 level. At the L3/4 level she does have loss of disc height. At the L4/5 level, there is a central annular tear and the L5/S1 level shows some early signs of dehydration. The facet joints at the L5/S1 level are slightly arthritic, the same as the L4/5 and to a lesser degree the L3/4 level.

The only option left for her is to consider surgery. If we are to proceed with surgery, we will be looking at an L3 to S1 fusion to encompass all 3 levels. The risks of surgery will be discussed if she wishes to proceed. I did give her a patient information pamphlet today for her to read. If she chooses to proceed with surgery, we will need to get insurance company approval."

1. Approval was sought by Dr Kam on 2 September 2024 for the applicant to "undergo a L3 to S1 fusion" as surgical treatment for her back injury.[10]

1. The applicant was referred to Dr Standen, pain physician and interventional pain specialist, for treatment of "persistent lumbar pain in association with the work-related injury".[11] Dr Standen suggested several modes of treatment for the applicant at their first consultation, on 7 December 2023, that included continuing physiotherapy and exercise physiology with hydrotherapy, pharmacotherapy, imaging investigations and obtaining a Transcutaneous Electrical Nerve Stimulation (TENS) machine.[12]
2. The applicant thereafter received various other treatment from Dr Standen. Diagnostic medical branch blocks of the lumbar facet joints on 7 March 2024.[13] Radiofrequency denervation of the right sided lumbar facet joints on 4 April 2024 and then of the left side on

2 May 2024.[14] A treatment plan was outlined by Dr Standen on 30 September 2024 including continued pharmacotherapy and a proposal for low-dose subcutaneous ketamine infusion, which the applicant was to consider at the time.[15] Arrangements were later made for the applicant to receive the ketamine infusion procedure over seven days from 23 February 2025 at the Mater Private Hospital.[16]

1. The applicant qualified Dr Renata Abraszko, neurosurgeon and spinal surgeon, to conduct an independent medical examination. In her report of 14 February 2025, Dr Abraszko diagnosed the applicant with lumbar disc injury at the L3/L4 and L4/L5 levels. She noted the applicant had "made a significant contribution to improve her condition" through weight loss and an exercise program. Despite those efforts, back pain was continuing and significant, "impacting on her work and daily living activities". Psychological factors, by way of "a history of depression and anxiety", were noted by Dr Abraszko as "contributing to [the applicant's] presentation" but that she had since "pulled herself together" and was "very positive".[17]
2. In her assessment of recommended treatment, Dr Abraszko considered the applicant had:[18]

"...already exhausted all possible conservative management. She is committed to go to work, but she cannot drive, when she has to take pain medications. There is no other solution to improve her back pain than to undergo surgery - lumbar fusion as requested by a Neurosurgeon, Dr Kam.

I'm satisfied that the period of conservative management for the treatment of discogenic back pain extensive and all other options of treatment were already exhausted.

I'm satisfied, that [the applicant] understands the limitations, benefits and the risks of the lumbar fusion.

She is committed to improve her back pain and to further weight loss, as well as she wants to continue to work in her current capacity.

I am satisfied, that there are no red flags and she is committed to postoperative rehabilitation and to perform the best, to achieve the best results after the operations.

She is committed to her work and despite her back pain she is already working full-time."

1. It was also Dr Abraszko's view the applicant's condition would "gradually deteriorate and soon she will have to stop working" without surgery. She identified that after surgery the applicant would require further weight loss and a program of exercise physiotherapy and swimming.
2. Dr Abraszko noted that with surgery the applicant would "likely develop an adjacent level disease" and may need extensive surgery in the future, an issue that was noted as well known to the applicant as a potential risk:[19]

"In every patient, a fusion surgery will result in some stage in developing adjacent segment disease. However, at present [the applicant] has no quality of life and if the surgery gives her 10 years of better quality of life, before she has further extension of the fusion, she told me that she is very happy with that result."

1. A report containing the opinion of Dr Caroline Tan had been provided to Dr Abraszko for comment. Dr Abraszko rejected the assessment of Dr Tan that the surgery was not reasonable and necessary for the applicant.

1. The respondent qualified Dr Tan, neurosurgeon, to conduct an independent medical examination of the applicant, which occurred on 30 September 2024. Dr Tan assessed the applicant with lumbar facetogenic pain with somatic referral as a result of the workplace injury. The applicant expressed her understanding to Dr Tan of the risks of proposed spinal surgery and that there was "no guarantee that surgery will fix her and that it could actually make her symptoms worse".[20] Dr Tan considered there may be other factors relevant to the applicant's treatment and recovery:[21]

"According to the biopsychosocial model, psychosocial risk factors often contribute to poor outcomes for injured workers (see Clinical Framework for the Delivery of Health Services, a publication of the Transport Accident Commission and Worksafe Victoria, supported by NSW Workcover). These risk factors can be classified according to the flags model where mental health factors (mental health disorders, personality disorders) are orange flags, psychological factors (unhelpful beliefs about injury, poor coping strategies, passive role in recovery) are yellow flags and social factors (low job satisfaction, excessive work demands, sense of injustice, problems outside work) are blue flags. In [the applicant's] case, there appear to be obvious orange, yellow and blue flags. There may also be black flags related to threats to financial security and litigation."

1. The specialist further reported in relation to injury recovery factors, that the applicant's:[22]

"...obesity and glucose resistance (pre-diabetic) are relevant to the perpetuation of her spinal pain. Her last MRI has identified fatty atrophy of the paraspinal muscles, which is a condition to which she is predisposed due to her obesity and glucose resistance. Furthermore, there are prominent mental health and psychosocial factors in the form of an extensive past history of depression and anxiety, and adverse scores on a range of psychometric instruments administered by Dr Standen in December 2023."

1. As to recommended alternatives to current treatment, Dr Tan opined that:[23]

"... exercise-based physiotherapy is essential. [The applicant] should also consult an endocrinologist and dietician about weight loss. Losing weight is going to reduce loading on her lumbar spine while exercise-based physiotherapy can improve the muscular control of her spine and help to overcome pain-related muscular inhibition. The intended outcome is reduce pain, improved functional capacity and improved self-efficacy. It is impossible to stipulate the type, duration and anticipated frequency of this treatment as these are questions for the treating health practitioners."

1. Dr Tan then provided her opinion about the proposal for the applicant to receive spinal fusion surgery:[24]

"Based on the information I have about [the applicant's] condition including the aforementioned risk factors for poor outcome and my knowledge of the medical literature on the outcomes of spinal fusion surgery versus non-surgical treatment, I do not believe that the L3 to S1 fusion is reasonable or necessary for her condition. I note that she is relatively young at 41 years of age to be undergoing a triple level spinal fusion, and she already has some radiological evidence of L2/3 facet arthropathy which means that, if she was to undergo L3 to S1 fusion, she is very likely to develop adjacent segment disease and end up needing more extensive fusion surgery.

I am concerned that the proposed surgical procedure is not going to provide the desired outcome and will lead to the need for more extensive surgery in the short to medium term. However, my views may not be shared by other spinal surgeons so I encourage you to seek alternative opinions."

1. Although Dr Tan was "not sure the outcome of the L3 to S1 fusion would be positive", as an alternative, she thought a "pain management program may be helpful". The expert was:[25]

"... sceptical that [the applicant's] expectations of the surgery are realistic. There is a significant risk that the surgery will cause undesirable sequelae, particularly a need for more fusion surgery in the short to medium term."

1. Section 60 of the Workers Compensation Act 1987 (the 1987 Act) provides that if, as a result of an injury received by a worker, medical or related treatment is reasonably necessary, then the employer is liable to pay the related cost by way of compensation. The nature of the applicant's lumbar spine condition is not the subject of dispute for resolution in these proceedings, whether treatment by way of spinal fusion surgery is reasonably necessary is the issue to be resolved.
2. The applicant relies on the opinion of her treating orthopaedic surgeon, Dr Kam, that she requires the surgery to treat the effects of the work-caused injury. She claims medical expenses pursuant to s 60 of the 1987 Act and that it is reasonably necessary to undertake that surgery, which results from her work injury.
3. The applicant has the onus to establish, on the balance of probabilities, the provision of the treatment is reasonably necessary. I must have "a sense of actual persuasion" that the reasonable necessity exists and that it results from the injury as claimed: Nguyen v Cosmopolitan Homes Pty Ltd [26] and Yucel v AAES Pty Ltd t/as Roadtrack.[27]
4. The concept of reasonable necessity of a particular treatment was considered by Roche DP in Diab v NRMA Ltd [28] (Diab). The fundamental question: "is it better that the worker have the treatment or not?" That is, are there reasonable prospects that the worker's situation will be improved or ameliorated by the treatment.
5. It was the identified by Roche DP, citing various authority, in Murphy v Allity Management Services Pty Ltd[29] (Murphy) that to satisfy the test of causation implied by the expression "result of", that it is sufficient to establish only that the injury "materially contributed" to that need and "a condition can have multiple causes".
6. A commonsense examination of the causal chain is required to determine whether the need for the claimed treatment arises as a result of the work-related injury: Kooragang Cement Pty Ltd v Bates[30] (Kooragang). The applicant is not required to prove the requested treatment is absolutely necessary, only that it be reasonably so: Diab.
7. In summary, I must determine whether it is reasonable and preferable for the applicant to have the treatment sought. In making that determination, relevant considerations include the suitability of the treatment, availability of alternative treatment (and the potential effectiveness of those), cost of the proposed treatment, potential effectiveness of the proposed treatment and the acceptance by medical experts of the treatment as being appropriate and likely to be effective.[31]

1. The applicant submitted that on a commonsense evaluation of her condition and the medical evidence, there is a clear link to the workplace injury and the reasonably necessity for the proposed spinal fusion surgery. The applicant has undertaken all recommended forms of conservative treatment, but her pain persists. These have included extensive weight loss, various injections, radiotherapy, ketamine infusion and allied methods such as exercise-based physiotherapy and hydrotherapy. Her treating specialist, Dr Kam, considers the proposed surgery appropriate, which has been confirmed by Dr Abraszko, an independent specialist.
2. It was highlighted that Dr Tan did not state that surgery was not required and focussed rather on the applicant being of younger age and that adjacent segment disease may develop with the need for more extensive surgery later. In reply to the respondent's reference to the nature of the radiological investigations, the applicant submitted it is the specialist medical practitioners who have provided reporting evidence that should be relied upon rather than non-expert interpretation and submissions on the content of those investigation reports. It is also relevant that Dr Tan applied the incorrect legal test, "reasonable and necessary", in consideration of whether the proposed spinal surgery is reasonably necessary. The fact the applicant may be working is not the relevant consideration, rather the nature of the pain she continues to experience, as outlined in her evidence and the reports of Dr Standen.

1. The respondent relies on the report of Dr Tan and submitted the proposed spinal fusion is not likely to provide additional functional improvement or sustained pain relief beyond what could be achieved through conservative treatment. The surgery is argued to be disproportionate and not commensurate with the applicant's condition. It is an extensive procedure that has not received extensive consideration in the medical evidence, according to the respondent, and that evidence is insufficient basis to find surgery is reasonably necessary. Dr Abraszko did not have radiological investigations from 2019 and otherwise failed to engage with the investigations that were available.
2. The opinion of Dr Tan should be preferred because she took account of the psychosocial risk factors, including the applicant's history of depression, and several colour flags were identified relevant to those factors. Dr Tan considers that, if she has the proposed surgery, the applicant will likely develop adjacent level segment disease that will require more extensive surgery in the future. Despite the applicant's claim to have "no quality of life", she is gainfully employed and undertaking various activities. The respondent submits there is no objective evidence supporting the need for surgery and Dr Kam was considering fusion surgery for the applicant prior to referring her for the other treatment. The respondent also noted the findings in various radiological reports to query whether they had been properly considered regarding the surgery proposal.

1. Although Dr Tan provided commentary about various matters that indicated to her the applicant should not undergo the proposed surgery, most were extraneous to the factors those relevant for consideration according to Rose. Those will be examined in more detail following. However, Dr Tan did raise various matters that require closer examination.
2. Psychosocial factors and the applicant's mental health seem to have significant in Dr Tan's opinion, she identified yellow, orange, blue and potentially black flags according to a scale contained a Victorian publication, the Clinical Framework for the Delivery of Health Services. It is evident the applicant has a history of mental health difficulties at various times in her life, for what appear to be specific reasons at certain times that are unnecessary to further examine here. The applicant's state of mental health and the concerns raised by Dr Tan were both issues known to Dr Abraszko at the time of her 14 February 2025 report who noted the applicant had "pulled herself together and is very positive" with a complete understanding of the risks associated with the proposed surgery, including that some level of pain may persist. I accept the submission made for the applicant that the issue of risk is ultimately one for her to assess in consultation with her treating specialist, Dr Kam.
3. Dr Tan also identified that the applicant would benefit from a regime of weight loss and further exercise-based physiotherapy. The undisputed evidence is that the applicant has engaged extensively in both; she lost about 130kg of weight and actively participated in such physiotherapy, including with related hydrotherapy. The clear implication that arises from her evidence, and that of the various medical practitioners who have reported, is the applicant has demonstrated persistent determination to recover from the effects of her back injury and to be free of associated pain. Dr Tan offered no explanation of how merely achieving further weight loss and continuing physiotherapy, in conjunction with a pain management program, might resolve the applicant's situation of ongoing pain where none those modes, either individually or in combination, have succeeded to date.
4. I accept the submission made for the applicant that she has pursued all referred and suggested conservative methods of treatment reasonably available to ameliorate her back pain. The list of those is extensive; significant weight loss, an exercise regime combined with physiotherapy and hydrotherapy, use of a TENS machine, various medications, epidural block injections and a week-long ketamine infusion as a hospital in-patient. Her treating specialist, Dr Kam, evidently considered fusion surgery was the ultimate step, seemingly of last resort. Dr Standen has apparently exhausted conservative treatment options in her role as a specialist in pain medicine treating the applicant. Dr Abraszko concurs and the submission by the respondent that specialist did not properly engage with the radiological evidence is rejected: her report contains comprehensive consideration of that material.
5. It was submitted for the respondent that Dr Kam was considering fusion surgery prior to other treatment modes being undertaken by the applicant or the outcome being known, thereby implying that the specialist had a predetermined view of the applicant's treatment. I do not accept that interpretation of Dr Kam's reporting. Although he was "more than happy to consider her for lumbar fusion surgery" at the time of his 17 October 2023 report, it was in circumstances where he referred the applicant for extensive other forms of treatment, namely a pain management program and substantial weight loss. That followed his referral for epidural block injections that failed.
6. The early references to surgery by Dr Kam were plainly to that as a final form of treatment if the alternatives were not successful. Dr Kam is a surgeon; it would be highly unusual if he did not consider surgery as an option at the time a patient is referred for his assessment. In the case of the applicant, his assessment was plainly that it was not appropriate prior to conservative treatment alternatives being exhausted, he made various referrals and recommendations to the applicant, and she pursued all of those, apparently with vigour. None resolved her back pain. Surgery then remained as an option for the applicant to consider in consultation with Dr Kam. There is nothing out of the ordinary about the approach adopted by that specialist.
7. The respondent relies on Dr Tan's view that there is a real risk of a poor outcome following surgery, the applicant is relatively young for such surgery and that she may develop adjacent segment disease that would require further, more extensive, surgery in the future. Dr Tan thought the proposed surgery to be not "reasonable or necessary" for those reasons.
8. Dr Tan's opinion must be considered in view of being asked to provide her opinion about the proposed surgery with reference to the incorrect legal test. That is, she was requested to comment on whether the surgery would be "reasonable and necessary" to treat the applicant's condition. The correct standard to be considered is whether the proposed surgery would be reasonably necessary as treatment. Dr Tan did not provide a response to that critical question. In Diab, the Deputy President was of the view that a "worker certainly does not have to establish that the treatment is "reasonable and necessary", which is a significantly more demanding test that many insurers and doctors apply". The ultimate findings of Dr Tan must be viewed in the context of her having applied the incorrect test; they are given the appropriate weight and in the circumstances the opinion of Dr Abraszko is preferred.
9. The weight of the specialist evidence, that is Dr Kam and Dr Abraszko, is that the proposed surgery is suitable to treat the applicant's ongoing lumbar spine problem. It is noted that Dr Tan did not suggest the surgery was unsuitable as a form of treatment, referring instead to other considerations and factors about the applicant's situation (psychosocial, weight-related, age and risk factors) as being reasons why it would not be reasonable and necessary.
10. There can be little doubt from the evidence that the applicant has exhausted all conservative treatment alternatives, and none has succeeded in alleviating her back pain. This is confirmed by Dr Tan, whose recommendation for other treatment simply repeats those that have already failed to provide the applicant with pain relief.
11. The claimed cost of the proposed treatment according to the ARD[32] is $23,398.85, that includes the procedure outlined in Dr Kam's 2 September 2024 letter of request[33] and post-operative rehabilitation treatment. The amount is not considered prohibitively expensive. The submissions made for the respondent seem to anticipate that further costs may arise in the future should adjacent segment disease become a post-operative issue. That is however not a relevant consideration currently because it is not known whether it will ever eventuate.
12. Dr Abraszko acknowledges a consequence of the surgery is that adjacent segment disease may arise later but considers that it should improve the applicant's quality of life in the immediate future post-operatively. It seems there is likely a period of around 10 years wherein the applicant will receive relief from pain. Dr Abraszko further considered that without the surgery the applicant would deteriorate to the point she would be unable to work. While referring to risk factors for a "poor outcome" due to the potential development of that disease, Dr Tan does not state in her report that the applicant will not receive pain relief benefit from the proposed surgery. It would therefore seem the weight of the specialist opinion is that the proposed treatment will be effective, whether that is for an indefinite period is unknown.
13. There is no evidence, and it has not been argued by the respondent, the proposed surgery is not accepted by medical experts as an appropriate form of treatment for a lumbar spine condition of the type that the applicant suffers.
14. I have considered the relevant matters as outlined in Rose. The evidence supports a finding the proposed treatment is reasonably necessary in the circumstances for the purposes of

s 60 of the 1987 Act. On balance it would appear better for the applicant to undergo the surgery than for it not to proceed; it should, more likely than not, improve her current situation and ameliorate the persistent back pain. 15. Accordingly, the respondent is liable to meet the cost of the surgical treatment as recommended by Dr Kam in his request for approval of surgery letter dated 2 September 2024 that is, an "L3 to S1 fusion".

1. The applicant sustained injury to her lumbar spine in the course of employment with the respondent on 15 January 2023. She is entitled to the cost of and incidental to surgery to treat the injury.

[6] Presumably that of 6 June 2023, which appears at ARD, p 102.

[26] [2008] NSWCA 246.

[27] [2015] NSWWCCPD 51.

[28] [2014] NSWWCCPD 72.

[29] [2015] NSWWCCPD 49.

[30] (1994) 10 NSW CCR 796.

[31] Rose v Health Commission (NSW) [1986] NSWCC 2 (Rose).