Treating evidence pertaining to the lumbar injury

1. A CT scan of the lumbar spine performed on 26 October 2020 identified moderate right L4/5 and L5/S1 facet osteoarthritis.
2. A CT guided left L5/S1 facet joint injection was performed on 2 November 2020.
3. The report of an MRI of the lumbar spine performed on 27 September 2023, noted that the L4/5 and L5/S1 discs showed posterolateral protrusion towards the right side, mildly displacing the L5 and S1 nerve roots. Annular tears were seen at the protruded discs on the right side.
4. On 8 December 2023 a further MRI identified mild facet arthropathy at L3/4 and on the left at L5/S1. No disc prolapse or neural compromise were seen.
5. The applicant was seen by Associate Professor Ghahreman on 15 October 2024 following the thoracic fusion surgery. With regard to the applicant's lumbar symptoms, Associate Professor Ghahreman reported:

"As far as his lower back issues are concerned I have previously (25th of September 2024) formally requested an L4/5 and L5/S1 posterior lumbar interbody fusion from the insurance of his accident. Both [Chris] and myself are very keen to try some alternative pain management strategies before proceeding with the surgery and particularly in view of the fact that he is still in recovery phase from his thoracic fusion. I have recommended that [Chris] has an appointment with my colleague trusted pain specialist Dr Adam Mir. As we have already tried lumbar radiofrequency treatment, in my opinion the remaining pain procedure is a RACZ procedure which will provide comprehensive anti-inflammatory treatment to all of the lumbosacral nerves."

1. Adult and Paediatric Pain Specialist, Dr Adam Mir, prepared a report on 31 October 2024 in which he reported that the applicant presented with persistent pain in the lumbosacral region. It was noted that Associate Professor Ghahreman had previously administered radiofrequency ablation, which had provided temporary relief. Dr Mir made arrangements for an MRI and bone scan to guide further planning.
2. The report of an MRI of the lumbar spine performed on 4 November 2024 noted a mild broad based disc bulge causing mild impingement on the thecal sac at L4/5. There was no impingement on exiting nerve roots. At L5/S1 there was a broad-based disc bulge causing minimal impingement on the thecal sac and no impingement on the exiting nerve roots. Bilateral facet joint hypertrophy was noted.
3. On 6 November 2024, Dr Mir reported:

"After a thorough evaluation, including a review of the most recent MRI scans and bone scans, I have recommended the RACZ adhesiolysis procedure to address his pain. Additionally, I have proposed an L5-S3 lateral branch block to target the right-sided S1 joint pain he has been experiencing."

1. On 3 December 2024, Dr Mir saw the applicant for a follow-up consultation after performing the RACZ adhesiolysis procedure. Dr Mir said the applicant reported some improvement in his pain but continued to experience referred pain at the bilateral lower limbs. Dr Mir recommended that the applicant proceed with radiofrequency ablation of the L3 to S1 medial branches to address the facetogenic lower back pain.
2. On 10 February 2025, Dr Mir reported that following the lumbosacral medial branch radiofrequency ablation procedure the applicant was still experiencing pain. A second procedure on the left side was planned. In the meantime, the applicant was advised to continue his medication regime.
3. On 18 March 2025, an MRI found multilevel mild lumbar canal stenosis with right lateral annular tears at L4/5 and L5/S1 and moderate right L4/5 foraminal stenosis.
4. Associate Professor Ghahreman reported on 11 April 2025,

"As far as the lumbar [c]oncerned we see discovertebral dislocation and bulges at L3/4, L4/5 and L5/S1. Chris is experiencing lower back pain perhaps somewhat worse on the left side. His MRI lumbosacral spine reveals evidence of some lateral recess stenosis at L4/5. He has tried radiofrequency ablation and injections a number of times but his treatment has been unsuccessful so far. I am concerned about the consequences of a fusion in terms of adjacent segment disease or aggravation of the pian. The least invasive option available next is to perform a left-sided decompression of the stenosed lateral recess at L4/5. Chris has requested we proceed with this option and I seek approval."

1. Dr Mir responded to questions about the suitability of the surgery proposed by Associate Professor Ghahreman from the insurer on 31 May 2025. Dr Mir stated:

"Decompression surgery is generally most effective in radicular symptoms due to nerve root compression. In Mr. Laphos' case, however:

• The axial back pain may have a discogenic or mechanical component due to annular tearing and internal disc disruption.

• Isolated decompression may provide relief, particularly if there is also neuroforaminal stenosis contributing to inflammation and pain signaling."

1. Asked whether the applicant would benefit from any interventional pain strategies versus surgery, Dr Mir responded:

"No. Mr Laphos has undergone a comprehensive trial of minimally invasive pain interventions, including :

These strategies have not provided meaningful or durable pain relief. Given the structural abnormalities, failed conservative and interventional management, and ongoing functional impairment, I support the consideration of surgical decompression as the next logical step in his treatment pathway. Mr Laphos has exhausted non-surgical and interventional pain strategies without durable relief. His imaging demonstrates clear structural pathology. In my opinion, the proposed decompression surgery is appropriate and justified, even if the final approach or side of access is left to surgical discretion. Surgical intervention now represents the best opportunity for symptom relief and functional restoration."

1. In a report to Dr Kuzmanovski, dated 24 June 2025, Dr Mir noted that the applicant presented with radicular pain affecting both lower limbs. His symptom pattern and MRI findings were said to be consistent with discogenic radicular pain. Dr Mir noted that the applicant had previously undergone a RACZ procedure seven months earlier which provided some initial relief but the applicant reported a gradual return of symptoms.
2. In a report dated 15 July 2025, responding to questions from the insurer, Associate Professor Ghahreman amended his proposal for surgery:

"The initial presentation and early imaging findings suggested right-sided L5/S1 foraminal stenosis. However, more recent clinical assessments have revealed left-sided predominant back pain with radiation to the left lower limb, corresponding with left lateral recess and foraminal narrowing at L4/5, as confirmed on updated imaging. His symptoms have evolved over time, and surgical planning reflects his current symptomatic side, not solely earlier imaging. Today, he tells me again that the right lower extremity pain has been more severe. Therefore, an appropriate decompression addressing both right and left will be performed through the laminotomy / laminectomy corridor."

1. The applicant's symptoms of lower limb pain radiating along an L5 distribution were said to correlate with left lateral recess stenosis at L4/5. The clinical examination findings were said to correlate with the MRI results.
2. Associate Professor Ghahreman said the applicant had undergone extensive non-surgical management but continued to suffer from debilitating radicular symptoms.
3. The goals of surgery were said to include pain reduction, particularly radicular symptoms and improved function. In similar cases, decompression had provided symptom relief in 70-80% of appropriately selected patients.
4. With regard to the potential effectiveness of the surgery, Associate Professor Ghahreman noted:

"While axial back pain is present, the dominant and functionally limiting complaint is radicular pain. Radicular pain can present with axial symptoms radiating to the sides and this needs decompression. Decompression targets the neurogenic component, which is most responsive to surgery. Axial pain may persist postoperatively but may improve secondarily due to reduced guarding and improved biomechanics."

1. In a report for Dr Kuzmanovski dated 1 September 2025 Associate Professor Ghahreman summarised the applicant's presentation and responded to a report from the respondent's independent medical expert, Dr Peter Moloney, stating:

"Dr [Moloney] had suggested previously that I was not confident in the potential benefit of lumbar surgery and that pain management through Dr Mir may be preferable. It is always the hope of surgeons that patients will improve with conservative, non-operative care. Unfortunately, this has not been realised as a tangible outcome for Chris. He continues to struggle every day with persistent bilateral lower back and lower extremity pain, requiring escalation of his medications. He is also developing worsening sleep apnoea, which I believe is related to the metabolic consequences of his ongoing injury.

Given this, I have no choice but to now offer him surgery in the form of a conservative decompression. At our initial consultation, I had noted a right-sided L5/S1 annular tear and right L5 foraminal compassion, and at that time l considered an L5/S1 anterior lumbar interbody fusion. However, as his symptoms have since become bilateral, and in light of the follow-up MRI performed on 24 March 2025 at CRI showing bilateral lumbar lateral recess stenosis at L4/5, I have expressed my strong preference to confine the surgery to a decompressive procedure. This would involve decompression of both right and left L4/5 lateral recesses, as well as foraminal decompression at L5/S1. Two incisions may be required as the L5/S1 disc contact with the nerve lies within the far-lateral zone of the right foramen. At both levels, annular tears are reported."

1. The respondent relies on a medicolegal report prepared by Dr Peter Moloney, dated 6 August 2025.
2. Dr Moloney took a history of the injury and subsequent treatment that was broadly consistent with the other evidence. Dr Moloney noted that Associate Professor Ghahreman initially recommended decompression in the form of posterior discectomy and fusion.
3. The applicant's current symptoms were noted to include lower back pain bilaterally with pain radiating into both lower limbs with pins and needles radiating to the foot affecting all toes on both sides. Dr Moloney recorded that his physical examination, however, was not consistent with the symptoms complained of and said there was an obvious lack of cooperation.
4. Dr Moloney said he did not believe there was sufficient clear evidence to support surgical intervention and he recommended ongoing non-surgical management of the applicant's back and leg problem. Asked specially whether bilateral lumbar decompression surgery was reasonably necessary at this stage, Dr Moloney responded:

"I note that Dr Ali Ghahreman is not confident about proceeding to surgical intervention and has referred Mr Laphos to Dr Adam Mir for ongoing non-surgical treatment. He says that if this is unsuccessful, then surgical intervention could be discussed. I am not confident that conservative non-surgical treatment or surgical treatment would relieve Mr Laphos of his back and leg pain. MRI scan in the cervical spine performed on 18 March 2025 and reporting foraminal stenosis on the left side at C5/6 and C6/7 is marginal at best. The lumbar spine at L3/4, L4/5, L5/S1 the foraminal stenosis is marginal and does not represent significant nerve root compression."

1. Dr Moloney commented that consideration could be given to radiofrequency ablations at some stage in the future under the care of Dr Mir. Dr Moloney also recommended ongoing physical therapy, hydrotherapy, exercise physiology and injection therapy together with medication and psychological support.

Treating evidence pertaining to the obstructive sleep apnoea condition

1. On 17 December 2024, the applicant's general practitioner, Dr Blagoj Kuzmanovski, responded to a series of questions from the insurer.
2. Dr Kuzmanovski indicated that the applicant had been complaining about sleep issues since he started seeing him. Dr Kuzmanovski initially thought they were anxiety related, however, on 14 November 2025, the applicant complained specifically of snoring. As a result of the injuries, the applicant could only sleep on his back and would snore, then be tired the whole next day. Dr Kuzmanovski recommended that the applicant see a sleep specialist and have a sleep study in order to confirm a diagnosis.
3. The applicant was seen by Dr Freiberg on 19 December 2024. Dr Freiberg reported that prior to the injury the applicant weighed 90kg with a BMI of 29. Dr Freiberg noted the applicant's ongoing pain following the thoracic fusion and said he was narcotic dependent for his pain. The applicant had also been prescribed medication for a consequential psychological condition.
4. Dr Freiberg said the applicant had gained weight since the injury and now weighed 101kg with a BMI of 33. This was said to be a gain of 12% of the applicant's bodyweight and his BMI had moved from the overweight to the type 1 obesity range.
5. Previously, Dr Freiberg reported that the applicant had eight hours of uninterrupted sleep on his side or in a prone position. He was not known to snore or be restless and he would awake refreshed with an Epworth Sleepiness Score of 0/24.
6. Now, the applicant would sleep two to four hours and needed to sleep more on his back because of the injury. His wife had noted snoring and apnoeic episodes. He woke frequently with pain and restless leg jerking. The applicant woke unrefreshed and had a 17/24 Epworth Sleepiness Score. On examination, the applicant had a Mallampati class 3 airway and partial nasal airflow obstruction.
7. Dr Freiberg diagnosed insomnia due to pain and periodic limb movement disorder. In addition:

"The narcotic analgesic use, the weight gain and sleeping in a supine position would have likely precipitated significant sleep disordered breathing."

1. Dr Freiberg recommended a full diagnostic polysomnogram.
2. On 4 February 2025, Dr Freiberg reported on the results of the polysomnogram, noting:

"He spent 37% of the sleep study on his back. On his back his respiratory disturbance index was severely increased at 61/hour (RDI>30 is severe obstructive sleep apnoea). In the non-supine usual pre-injury position his RDI was 17/hour consistent with mild to moderate obstructive sleep apnoea. He was also particularly severe in REM sleep with an RBI of 67/hour in REM sleep."

"... this sleep study shows some insomnia due to pain but the predominant abnormality being severe obstructive sleep apnoea overall particularly severe on his back and in REM sleep. He clearly requires treatment intervention with CPAP therapy."

1. Dr Freiberg prepared a report for the applicant's solicitor on 27 June 2025. In this report, Dr Freiberg noted that, in fact, the applicant's general practitioner's notes consistently demonstrated a weight range between approximately 98 kg and 111 kg, corresponding to a BMI between 31 and 35. This meant the applicant had been in the overweight to mild class I obesity range (BMI >30) for over a decade. Dr Freiberg said that irrespective of the injury, the longstanding elevated BMI rendered the applicant more susceptible to obstructive sleep apnoea.
2. With regard to the impact of the injury, Dr Freiberg commented:

"It is more probable than not that Mr Laphos's significant health deconditioning since his workplace injury was a key driver in the development of overt, severe OSA. Following his thoracic injury with T9-T10 fusion, ongoing pain, and subsequent cessation of his demanding arborist work, he became markedly less active. This reduction in habitual vigorous exercise would have led to deconditioning of both general skeletal musculature and the upper airway dilator muscles critical in maintaining pharyngeal patency during sleep.

Additionally, due to pain from his spinal injury, he shifted from predominantly prone and lateral sleeping positions to spending more time sleeping supine. This was objectively confirmed on his polysomnogram, where he spent 37% of total sleep time on his back. Supine sleep is well documented to exacerbate airway collapsibility, with positional OSA often showing a doubling or tripling of the respiratory disturbance index (RDI) compared to lateral sleep (1). In Mr Laphos's case, this was strikingly demonstrated by an RDI of 61/hour while supine versus 17/hour in non-supine positions.

Taken together, the combination of lost muscle tone from inactivity, increased time spent sleeping supine (due to back pain), and pre-existing anatomical vulnerabilities (Mallampati class 3, neck circumference 42 cm), materially advanced the condition from a likely mild, asymptomatic OSA to manifest severe OSA requiring CPAP therapy."

1. The applicant's reliance on Palexia was also noted to be relevant:

"In combination with his positional change to supine sleep and general deconditioning, the opioid effect likely further destabilised his already compromised upper airway physiology, converting a previously compensated situation into overt severe OSA."

1. The respondent relies on a medicolegal report by occupational physician, Dr Michael Lim, dated 28 April 2025.
2. At the commencement of his report, Dr Lim noted that he was not a sleep physician and not appropriately qualified to diagnose or treat sleep disorders without the advice of a sleep physician. Dr Lim was, however, qualified to comment on whether the diagnosis and treatment of a sleep disorder was consistent with available clinical data and current medical guidelines.
3. Dr Lim took a history of the injury and subsequent treatment that was consistent with the other evidence. Dr Lim also noted the records of the applicant's weight as set out in the Carlingford Court Medical Centre notes. The applicant was noted to be taking Palexia and amitriptyline at night.
4. Dr Lim noted a BMI of 32.7 and Mallampati score of three out of four. The applicant's Epworth score was 15/24, indicating excessive daytime sleepiness. The results of the sleep study conducted on 25 February 2025 were noted to be consistent with severe obstructive sleep apnoea.
5. Dr Lim agreed with Dr Freiberg's diagnoses and recommendation for CPAP therapy.
6. Dr Lim identified a number of recognised risk factors for obstructive sleep apnoea including the applicant's age, elevated BMI, upper airway obstruction and gender, none of which were attributable to the injury. Dr Lim noted that the clinical records did not support a significant weight gain after the fall.
7. Dr Lim accepted that the injury was responsible for the applicant's chronic pain and noted there was evidence of a pain related sleep disorder. Dr Lim did not, however, consider the obstructive sleep apnoea was consequential to the injury.
8. Dr Lim noted:

"Dr Kusmanovski's report, dated 17/12/2024, contained a suggestion that Mr Laphos acquired sleep apnoea from sleeping on his back:

"He claimed that because of the injuries he could only sleep on his back.... He sleeps on his back and that's how he developed sleep apnoea".

Mr Laphos told me the opposite, that lying on his back exacerbates his back pain, and he prefers sleeping on his side. The sleep study confirmed this preference for non-supine sleep, showing Mr Laphos sleeping on his back only during 37% of sleep.

The sleep study showed that Mr Laphos's obstructive sleep apnoea is much worse when he sleeps supine, a well-recognised physiological effect. However, sleeping supine did not cause the obstructive sleep apnoea, even though the condition worsens in that position. Notably, in Mr Laphos' case, moderate obstructive sleep apnoea was evident when he slept non-supine."

1. The applicant referred to the relevant authorities set out below.
2. The applicant drew the Commission's attention to the treating evidence from Associate Professor Ghahreman and Dr Mir. In his most recent reports, Associate Professor Ghahreman was noted to have responded to Dr Moloney's opinions.
3. The applicant submitted that the surgery proposed constituted a more conservative approach to treatment that the initially proposed fusion. The benefits to the applicant had been identified. The applicant had expressed a desire to undergo the procedure. The applicant submitted that the Commission would be satisfied that the evidentiary onus was discharged.
4. The applicant observed that Dr Moloney provided the only contrary opinion. The applicant submitted that Dr Moloney had not ruled out the proposed surgery as unreasonable but said from his point of view it was not appropriate.
5. The applicant submitted that the Commission would prefer the evidence from the treating doctors. Dr Moloney's comments about Associate Professor Ghahreman not being confident about the proposal for surgery had been addressed by Associate Professor Ghahreman. Dr Moloney's opinions were said to be somewhat contradictory, in that he recommended conservative treatments but also expressed the view that conservative, non-surgical treatment may not relieve the applicant of his back and leg pain. Dr Moloney recommended radiofrequency ablation, which had been trialled and was part of the treatment now proposed by Associate Professor Ghahreman. The applicant submitted that it was hard to get a true sense of what Dr Moloney was saying and his opinions were equivocal. This could be contrasted with the forthright and clear opinion from Associate Professor Ghahreman, supported by Dr Mir.
6. With regard to the claim for CPAP therapy, the applicant referred to the need for an analysis consistent with Kooragang Cement Pty Ltd v Bates[1]. The relevant test was whether the work injury had made a "material contribution" to the need for that treatment.
7. Dr Lim identified a number of elements contributing to the need for the CPAP therapy including a congenital airway condition. It was significant, however, that the applicant never sought treatment and never had treatment recommended to him for sleep apnoea prior to injury.
8. The sleep study confirmed that the applicant spent approximately 40% of the time sleeping on back. The applicant's evidence was that this was due to issues with back pain. The medical evidence confirmed the need to increase his medication levels.
9. Dr Freiberg had diagnosed some sleep disturbance due to insomnia but the predominant issue was the positional sleep apnoea.
10. The applicant noted that there was one contrary opinion on causation from Dr Lim. Dr Lim agreed with the diagnosis and the need for CPAP therapy. Dr Lim disclosed that he was not a sleep physician and not qualified to diagnose and treat sleep disorders.
11. Noting the 'material contribution' test, the applicant submitted that the facts spoke for themselves. The applicant was left struggling with significant pain by the injury. The applicant had undergone thoracic surgery. The report from Dr Kuzmanovski was also noted to be relevant. The applicant submitted that the opinions of his treating doctors would be given precedence.

1. With regard to the proposed lumbar surgery, the respondent relied on the report of Dr Moloney.
2. The respondent noted that Dr Moloney did not believe there was sufficient evidence to support surgery. The crux of his opinion was said to be Dr Moloney's observation that there was only marginal foraminal stenosis and the nerve root compression was not significant. It was for this reason that Dr Moloney did not consider surgical treatment would improve the applicant's pain. The pathology on MRI not serious enough to warrant surgery.
3. The respondent noted what while Dr Moloney was equivocal about whether radiofrequency ablation would assist, his opinion about surgical intervention was clear. Dr Moloney did not consider that the proposed treatment was appropriate or actually or potentially effective.
4. The respondent submitted that Associate Professor Ghahreman's opinions were largely based on the applicant's reports of ongoing pain. Associate Professor Ghahreman said he had "no choice" but to offer surgery because of the lack of response to conservative treatment. Associate Professor Ghahreman did not address Dr Moloney's comments regarding the pathology seen on MRI.
5. While Associate Professor Ghahreman referred to the presence of foraminal compression, this could be contrasted with the actual MRI reports.
6. The respondent submitted that the Commission would prefer the objective observations of Dr Moloney compared to the subjective complaints on which Associate Professor Ghahreman's proposal was based.
7. With regard to the claim for CPAP therapy, the respondent referred to the report of Dr Lim. Dr Lim identified a number of risk factors which were unrelated to the injury.
8. Dr Lim observed that the applicant told him that lying on his back exacerbated his back pain, and he preferred sleeping on his side. The sleep study confirmed this preference for non-supine sleep, showing the applicant sleeping on his back during only 37% of sleep. While the condition was worse when supine, there was still evidence non-supine sleep apnoea. The respondent submitted that the suggestion of a causal relationship between sleeping supine and obstructive sleep apnoea was incorrect.
9. The respondent observed that the applicant's statement contained little evidence regarding his sleeping habits.
10. Dr Freiberg's opinions stood in contrast to the report relied on by the respondent. The respondent submitted that the Commission would not be satisfied that the applicant had discharged his onus.

Whether the surgical procedure proposed by Associate Professor Ghahreman is reasonably necessary as a result of the injury on 31 August 2020?

1. Section 60 of the 1987 Act relevantly provides:

"(1) If, as a result of an injury received by a worker, it is reasonably necessary that:

(a) any medical or related treatment (other than domestic assistance) be given, or

(d) any workplace rehabilitation service be provided,

the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2)."

1. What constitutes reasonably necessary treatment was considered in the context of s 10 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[2] where Burke CCJ stated:

"Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular 'treatment' cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment."

1. In Diab v NRMA Ltd,[3] Roche DP provided a summary of the relevant principles as follows:

"In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:

(a) the appropriateness of the particular treatment;

(b) the availability of alternative treatment, and its potential effectiveness;

(c) the cost of the treatment;

(d) the actual or potential effectiveness of the treatment, and

(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.

With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.

While the above matters are 'useful heads for consideration', the 'essential question remains whether the treatment was reasonably necessary' (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression 'no reasonable prospect' should be understood, '[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content'."[4]

1. There is no dispute in these proceedings that the applicant sustained an injury to his lumbar spine in the event on 31 August 2020. There is, however, a dispute as to whether the surgical procedure now proposed by Associate Professor Ghahreman is "reasonably necessary" as a result of that injury.
2. The dispute centres on the different opinions expressed by Dr Moloney on the one hand and the treating doctors on the other, particularly with regard to whether the pathology at the applicant's lumbar spine warranted surgical intervention.
3. Dr Moloney's view was that there was only marginal foraminal stenosis at the lumbar spine and no significant nerve root compression. Dr Moloney did not consider there was sufficient clear evidence to support surgical intervention and recommended ongoing non-surgical management the applicant's back and leg problem.
4. Attached to the Application to Resolve a Dispute are the reports of a number of radiological investigations of the applicant's lumbar spine. The report of the most recent MRI found multilevel mild lumbar canal stenosis with annular tears at L4/5 and L5/S1. At L4/5 there was moderate right foraminal stenosis at the exit site of the right L4 nerve root which appeared contacted by the adjacent disc, although not significantly compressed. There was also contact but no significant compression of the descending L5 nerve root and the lateral recesses. At L5/S1, there was mild right and minimal left foraminal stenosis due to disc height loss.
5. I am not persuaded that Dr Moloney's summation of the pathology at the applicant's lumbar spine is entirely consistent with this radiological report.
6. The radiological investigations have been considered by the applicant's treating doctors.
7. The applicant's treating pain specialist, Dr Mir, reported to the insurer on 31 May 2025 that the applicant had clear structural pathology.
8. In his most recent report for the insurer, the applicant's treating surgeon, Associate Professor Ghahreman also said the radiological findings were consistent with his clinical findings, although there appeared to have been some evolution in the applicant's radicular pain with regard to which side was the site of more significant symptoms.
9. Like Associate Professor Ghahreman and Dr Mir, Dr Moloney took a history of bilateral lower back pain with pain radiating into both lower limbs with pins and needles affecting the toes on both sides. Dr Moloney formed the view, however, that his physical examination was not consistent with the symptoms complained of and said there was an obvious lack of cooperation. Dr Moloney's impression of the applicant's presentation appears to have influenced his view that there was insufficient evidence to support surgical intervention.
10. The review of the treating evidence above reveals that the applicant has consistently reported lower back pain and bilateral radicular symptoms over time.
11. Dr Moloney recommended that the applicant persist with conservative management of his symptoms including radiofrequency ablation, physical therapy, hydrotherapy, exercise physiology and injection therapy together with medication and psychological support.
12. The treating evidence demonstrates that the applicant has, in fact, already undergone a comprehensive regime of conservative treatment including medial branch blocks, radiofrequency ablation, RACZ adhesiolysis, medication and physiotherapy. None of those treatments has provided the applicant with any lasting relief.
13. I am satisfied that the current proposal for surgery was only made after a genuine attempt at conservative management. The applicant's own experience of those treatment options and even Dr Moloney's assessment do not suggest that these alternative treatments are likely to be effective in alleviating the applicant's symptoms in a durable way.
14. While Dr Moloney did not support the proposal for surgery, he also did not express a view that the treatment was inappropriate. Associate Professor Ghahreman's proposal has received support from Dr Mir, who noted that decompression surgery was effective in alleviating radicular symptoms due to nerve root compression but may also assist the discogenic component of the applicant's pain given the annular tearing and internal disc disruption.
15. Similarly, Associate Professor Ghahreman said the goals of surgery included pain reduction, particularly of the applicant's radicular symptoms and improved function. Associate Professor Ghahreman explained that the dominant and functionally limiting complaint was radicular pain. While the applicant's axial pain might persist postoperatively, it could improve due to reduced guarding and improved biomechanics.
16. Having weighed Dr Moloney's opinions against the body of treating evidence before me, I am satisfied that the applicant's evidence demonstrates that the proposed surgery is appropriate and potentially effective. I am not satisfied that there are any viable alternative treatments likely to provide the applicant with durable relief. I am satisfied that the procedure has been accepted by both of the applicant's treating specialists as being appropriate and likely to be effective. While the costs of the procedure are not insignificant, they are proportionate to the applicant's condition. The particular procedure represents a more conservative approach than the fusion which was initially contemplated.
17. I am satisfied that the applicant has discharged his onus of demonstrating that the proposed surgery is reasonably necessary as a result of the injury. There will be an order for the respondent to pay the costs of and incidental to the surgery in accordance with s 60 of the 1987 Act and the applicable SIRA Fees Order.

Whether the CPAP therapy proposed by Dr David Freiberg is reasonably necessary as a result of the injury on 31 August 2020?

1. There is no dispute between the parties that the applicant has obstructive sleep apnoea or that the CPAP therapy recommended by Dr Freiberg is reasonably necessary treatment for that condition.
2. The dispute remaining is whether the need for such treatment has "resulted from" the injury.
3. In considering this question, there is an important distinction to be drawn between the test for an "injury" for the purposes of s 4 of the 1987 Act, and a condition which has "resulted from" a compensable injury. As Deputy President Roche in Moon v Conmah observed at [45]-[46]:

"It is therefore not necessary for Mr Moon to establish that he suffered an 'injury' to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an 'injury' to his left shoulder in the course of his employment with Conmah they asked the wrong question."

1. A commonsense evaluation of the causal chain is required. The applicable test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates,[5] where Kirby P said at [461] (Sheller and Powell JJA agreeing):

"From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate...

Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act."

"The result of the cases is that each case where causation is in issue in a workers' compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase 'results from', is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death 'results from' a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death 'results from' the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death 'resulted from' the work injury which is impugned."

1. A need for treatment can "result from" multiple causes. In Murphy v Allity Management Services Pty Ltd[6] Roche DP stated:

"...That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.

Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary 'as a result of' the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]-[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716)."

1. It had initially been suggested by the applicant's specialist, Dr Freiberg, that the need for treatment had resulted from the injury largely due to its impact on the applicant's weight. Based on the applicant's reporting, Dr Freiberg was of the understanding that the applicant had gained approximately 12% of his body weight since the accident.
2. It later became apparent, however, that the applicant's history was not consistent with the records of his weight which appeared in his general practitioner's notes. In his more recent report, Dr Freiberg accepted that the applicant had been in the overweight to mild class I obesity range (BMI >30) for over a decade and that this in itself rendered him more susceptible to obstructive sleep apnoea.
3. Other pre-existing or congenital conditions have been identified in the evidence before me as contributing to the need for treatment. These include the applicant's age, gender, Mallampati class 3 airway and partial nasal airflow obstruction.
4. It is, however, important to note that the applicant did not complain of or seek treatment for daytime sleepiness or other symptoms of obstructive sleep apnoea such as snoring, prior to the injury.
5. While there are a number of non-work related factors which have no doubt disposed or contributed to the applicant's obstructive sleep apnoea, it appears that symptoms sufficiently severe as to require investigation and treatment only arose after the injury.
6. Dr Freiberg has given the opinion that the injury resulted in lost muscle tone from inactivity, particularly of the upper airway dilator muscles, which are critical in maintaining pharyngeal patency during sleep. Dr Freiberg also noted that the prescription of Palexia for the applicant's pain had an opioid effect. The applicant also reported a positional change to more supine sleep, confirmed on the sleep study, as a result of the injury.
7. In combination, Dr Freiberg said these injury-related factors had converted a previously compensated situation into overt, severe obstructive sleep apnoea and the need for treatment.
8. While Dr Freiberg's view suggests the injury has materially contributed to the need for treatment, it must be weighed against the competing opinion of the respondent's expert, Dr Lim.
9. Dr Lim noted the non-work related factors contributing to the applicant's condition. He also observed that the applicant was taking Palexia and amitriptyline at night. Importantly, Dr Lim took a history from the applicant that lying on his back exacerbated his back pain, and he preferred sleeping on his side.
10. This history regarding positional preference was inconsistent with the history given to both Dr Freiberg and the applicant's general practitioner, Dr Kuzmanovski. In his report of

17 December 2024, Dr Kuzmanovski said that as a result of the injuries, the applicant could only sleep on his back and would snore, then be tired the whole next day. The applicant also told Dr Freiberg that he needed to sleep more on his back because of the injury. 11. Although the applicant's statement evidence does not specifically address his positional sleep preferences, the weight of evidence favours the history relied on by Dr Freiberg. 12. I accept Dr Lim's observation that sleeping supine did not cause the applicant's obstructive sleep apnoea. Dr Lim did, however, recognise that the condition worsened in that position. 13. Having carefully considered all of the evidence, I find that while underlying factors may have been the predominant cause of the applicant's obstructive sleep apnoea, the injury has resulted in the condition becoming more severe, which has led to the current need for treatment. 14. I am satisfied, as a result, that the need for CPAP treatment as recommended by Dr Freiberg is reasonably necessary as a result of the injury for the purposes of s 60 of the 1987 Act. There will be an order for the respondent to pay the costs of and incidental to the proposed CPAP therapy in accordance with s 60 of the 1987 Act and any applicable SIRA Fees Order.

[1] (1994) 10 NSWCCR 796 at [810].

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

[3] [2014] NSWWCCPD 72.

[5] (1994) 10 NSWCCR 796 at [810].

[6] [2015] NSWWCCPD 49.