(a) whether the surgery was reasonably necessary as a result of the injury as required by s 60 of the 1987 Act.

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

(a) Application to Resolve a Dispute (ARD) and attached documents, and

(b) Reply to ARD and attached documents.

1. No oral evidence was called and no application was made for leave to cross-examine.

1. In a statement dated 11 April 2025, the applicant stated that:

(a) commencing in 2018, he worked for the respondent as a part-time stock handler and night filler;

(b) on 2 March 2023, he sustained injury to his back in the course of his employment with the respondent. At the time, he felt severe pain in his back, which radiated up to his neck, down to both buttocks and the back of his thighs and calves of both legs, and occasionally to both feet and big toes on both sides;

(c) prior to the injury, he had no prior injuries or conditions affecting his back, apart from an injury to his neck in April 2022 in the course of his employment with the respondent, from which he recovered;

(d) subsequent to the injury, he attended various treating practitioners, including general practitioner Dr Tosan Ajuyah, and also Coffs Harbour Base Hospital in respect of ongoing pain and symptoms arising from the injury. He also underwent various radiological investigations in respect of the injury;

(e) he was certified as having various incapacity to work as a result of the injury;

(f) he underwent various treatment in respect of the injury, including physiotherapy, exercise physiology, massage therapy, home exercise program, two

non-steroidal anti-inflammatory medication, pain relief medication and a CT guided hydrocortisone injection to the right S1 nerve root, however none of the treatments provided any enduring relief from his symptoms nor any significant and enduring improvement in his functional capacity;

(g) on 7 March 2024, Dr Andrew Kam, neurosurgeon, initially recommended that the applicant undergo the surgery. On 11 June 2024, when his pain and symptoms was worsening, Dr Kam again recommended the surgery;

(h) he continues to suffer ongoing constant lower back pain of a severity of 6 to 8 on a scale of 1 to 10. The pain radiates from the lower back up to his shoulders and the back of his neck and down to the buttock and down the back of the leg down to his feet and big toes. Sometimes, he feels sharp or burning pain, especially during certain movements. Sometimes, he gets numbness or tingling in his legs and feet;

(i) the ongoing pain affects everything that he does and every aspect of his life, including going to the toilet, sitting and sleeping. The pain causes him to limp when he walks. When the pain is particularly bad, he needs to lie down, and

(j) he does not believe that continuing with non-surgical treatment will provide him with any lasting improvements to his back and he would like to undergo the surgery recommended by Dr Kam.

1. The treating medical evidence includes reports of the following radiology:

(a) a CT - Lumbar Spine performed on 26 April 2023 was reported by Dr Tony Lu, to show a moderate-sized L5/S1 right central disc protrusion, with partially effaces the right lateral recess causing impingement of the right transiting S1 nerve root, and L4/5 demonstrated a small central disc protrusion. Dr Lu stated that a right L5/S1 posterior epidural injection could be considered;

(b) an MRI Cervical and Lumbar Spine (without contrast) performed on 6 September 2023, was reported by Dr Li Enn Yapp on 21 September 2023 to show a large posterior disc protrusion slightly eccentric to the right at L5/S1 with only corresponding mild grade spinal canal stenosis there. There was no evidence of any other significant spinal canal stenosis or foraminal stenosis. There was some contacting of the descending S1 nerve roots within the lateral recesses of the L5-S1 but there was no other nerve root contacting;

(c) a CT guided steroid injection performed to the right facet joint at L5/S1 on 1 November 2023 was reported by Dr Vlad Davydenko, and

(d) a CT guided steroid injection performed to the right exiting S1 nerve root was reported by Dr Vlad Devydenko.

(a) recorded a history of acute onset of intense and severe lower back pain in March 2023, initially with no leg symptoms whatsoever, then with ongoing daily pain and walking with a limp, and difficulty sitting, standing and walking for extended periods of time, despite having undergone two steroid injects without any great relief;

(b) noted that the MRI scan of the applicant's lumbar spine showed evidence of a right sided L5/S1 disc herniation, impacting on the right S1 nerve root, with the remainder of the spine being relatively normal;

(c) on examination, noted that the applicant walked with an antalgic gait and did not have any weakness of dorsi nor plantar flexion;

(d) recommended that the applicant proceed with a right sided L5/S1 microdiscectomy, and

(e) noted that he discussed with the applicant the risk of nerve root injury, spinal cord injury, CSF leak, infection, recurrent disc herniation and ongoing back pain and leg pain.

1. In a report dated 17 March 2024, Dr Kam answered the insurer's questions. Dr Kam expressed the opinion that the surgery would likely result in 75 to 80% improvement in the consequences of the injury.
2. In a report dated 11 June 2024, Dr Kam:

(a) reiterated that he recommended an L5/S1 microdiscectomy as an option for the applicant as he had suffered from pain for nearly one year with failure of conservative treatment provided by his general practitioner including two steroid injections;

(b) expressed the opinion that the surgery was reasonable and necessary as a result of the injury;

(c) stated that the surgery would benefit the applicant by reducing his leg pain by 85% to 90%, noting that occurred in approximately 85% of patients;

(d) in relation to the costs of hospitalisation and surgery, stated that his surgeons fee based on the rates recommended by the Australian Medical Association was $6,800, with his assistant to incur 20% of those fees;

(e) stated that the only alternative treatment would be ongoing pain medication and repeat procedures by a pain specialist;

(f) stated that following the surgery, the applicant would need to undergo

post-operative physiotherapy and hydrotherapy to facilitate his recovery, and

(g) stated that the surgery that he recommended is "not for the applicant's lower back pain but for his lower extremity symptoms" noting that his physical examination of the applicant showed that the applicant had an antalgic pattern of gait.

(a) stated that the applicant remained quite restricted in his ability to return to work due to the amount of pain that he has involving his right lower extremity;

(b) noted that the MRI scan of the applicant's lumbar spine showed the presence fo a right sided L5/S1 disc herniation, impacting on the right S1 nerve root, and

(c) expressed surprise that the insurer rejected the applicant's claim in relation to the surgery.

1. By a handwritten report dated 26 March 2024, Dr Tosan Ajuyah, general practitioner, responded to the insurer's questions regarding the proposed right L5/S1 microdiscectomy, and stated that:

"I am not convinced that a microdiscectomy is reasonable at this stage. I have read Dr John Stephen's report in details [sic] and I am favourably included to his suggestions. However, I am not a back specialist.

Alternatives should include hydrotherapy, radiofrequency neurotomy, which can be done by the pain specialist in Coffs Harbour - Dr Shaun Clarke.

I am not convinced of the need for surgery. Can we kindly explore all other avenues first?"

1. The evidence includes clinical records of various treating practitioners:

(a) the Park Beach Family Practice:

(b) the Beach Street Family Practice;

(c) Dr Safwat Soliman;

(d) Hoys Physiotherapy, and

(e) Coffs Coast Sports Physio.

(a) Dr Tosan Ajuyah recorded various attendances by the applicant in relation to ongoing back pain, referrals for investigation and conservative treatment;

(b) Nicole McKay, physiotherapist, recorded various attendances by the applicant in relation to ongoing back pain and physiotherapy treatments. Ms McKay recorded that the applicant reported pain in the back, left gluteal and at the back of the left thigh and referred pain to the hips, particularly when walking for a time and when sitting, and also neck pain;

(c) on 25 August 2023, Dr Ajuyah recorded that the applicant reported a flare up of chronic back pain, which radiated downward, and also to his neck, shoulder and arm. Dr Ajuyah recorded on examination, that the applicant had a tender lower back, restriction in lumbar flexion and normal gait;

(d) on 31 January 2024, Ms McKay, physiotherapist recorded that the applicant reported pain in the left lumbar region, into the gluteal, down to the ankle and sharp pain in side back passage, cervical spine and headache;

(e) on 26 March 2024, Ms McKay recorded that the applicant reported slight improvement of pain at the lower back sacrum however the applicant's legs felt "very nervy";

(f) on 2 April 2024, Dr Tosan Ajuyah recorded a history that the applicant had chronic low back pain since the injury and had a diagnosis of lumbar radiculopathy secondary to disc protrusion L4 to S1 and impingement of S1 nerve and that a surgeon had recommended a microdiscectomy. The applicant reported worsened back pain since work the previous night, which was not relieved by medication. Dr Ajuyah advised the applicant on the rationale of not having surgery at that time and recommended that the applicant consult another general practitioner if not happy with his professional opinion and management;

(g) on 3 May 2024, Dr Ajuyah recorded that the applicant presented with severe lower back pain radiating to the buttocks and legs bilaterally and he was assessed to have likely lumbar radiculopathy secondary to nerve root compression, which was not relieved by medication. The applicant maintained that he wanted to undergo the surgery;

(h) on 9 May 2024, Ms McKay recorded that the applicant presented with pain down the left leg and heaviness at the left calf, with increased pain at the lower back and that he reported that he had to go onto his knees to ease pain after standing for a while;

(i) in a report dated 28 May 2024, Ms McKay reported that the applicant had been having ongoing physiotherapy following an incident at work where he injured his thoracic spine and lumbar spine. Ms McKay reported that the applicant has struggled to overcome the injury even though he has had extensive physiotherapy and exercise physiology. Ms McKay reported that the applicant reported that his pain is across the lower back, out to the hips, it is a sharp pain at the sacrum and pain deep inside the back passage when going to the bathroom. Ms McKay queries whether there was a possible nerve root irritation that may be helped with a guided injection but considered that it may not be of benefit either without follow through self-management;

(j) on numerous dates from 31 July 2024, Ms McKay also reported that the applicant had radiating walking pain, and

(k) on 23 October 2024, Ms McKay reported that the applicant reported some numbness at the left calf after walking.

1. The evidence includes various certificates of capacity.

1. Other evidence includes the respondent's list of payments.

Dr John Stephen, orthopaedic surgeon, independent medical expert qualified by the respondent

(a) recorded a history of injury that the applicant developed back pain following the injury, and that he later also developed some neck pain;

(b) stated that he reviewed reports of the CT Lumbar Spine dated 26 April 2023 and the MRI dated 22 September 2023;

(c) stated that the applicant complained of back pain, mostly low lumbar but it could extend proximally as far as the lower thoracic region, with no radicular distribution in the lower limbs, but the applicant did describe pain mostly in the outer aspect of his thighs in association with his back pain. Dr Stephen stated that the applicant also described neck pain at the left side of his neck, which extends to the left ear and some pain posteriorly, with no radicular symptoms in the upper limbs. Dr Stephen stated that the applicant had no problems with bladder or bowel control, although at times he complained of pain on defaecation;

(d) conducted a physical examination and noted that: the applicant walked without a limp, he could heel walk and tiptoe; there were some minor inconsistencies which may have been related to apprehension; cervical and thoracolumbar posture was normal; there was no muscle wasting in neck or the lower limbs; the applicant had full range of movement of his neck and shoulder; lumbar movements were carried out a little reluctantly, probably with some guarding, but through a range just a little short of full and the applicant complained of pain at the extremes of all movements; hip movements were full but with a complaint of back pain; straight leg raising on each side was to 70 degrees with complaint of back pain; and there were no neurological abnormalities in the lower limbs;

(e) stated that the applicant certainly does not have radiculopathy at present and probably never did, his pain being chiefly low lumbar and in the thighs, rather than extending in a specific nerve root distribution;

(f) diagnosed discogenic mechanical lumbar back pain with some radiation to the thighs as the result of a work-related lumbosacral disc injury, but with no evidence of radiculopathy, noting that the applicant's pain was chiefly low lumbar and in the thighs, rather than extending in a specific nerve root distribution;

(g) expressed the opinion that the applicant did not sustain a significant neck injury at the time of the injury for the reasons that the mechanism is unlikely, there are no physical signs to support his complaints and an MRI scan was unremarkable for a man of his years (with a small posterior disc protrusion being reported at C4/5 and C5/6 and possibly C3/4);

(h) stated that the applicant did appear rather apprehensive, and pain focused;

(i) noted that the applicant was currently working 21 hours on suitable duties, which Dr Hopcroft suggested should gradually be increased;

(j) expressed the opinion that the current treatment was reasonably necessary, and that physiotherapy be phased out over the next two to three months; and

(k) stated that he had no other treatment suggestions.

1. By a supplementary report dated 15 March 2024, Dr Stephen:

(a) reiterated his diagnosis based on his examination of the applicant on 27 October 2023;

(b) noted that the insurer had now received a surgery request for the applicant in the form of a right lumbosacral microdiscectomy;

(c) referred to Dr Andrew Kam's report dated 7 March 2024 and stated that:

(i) Dr Kam simply described lower back pain;

(ii) Dr Kam stated in relation to physical examination simply that "Clinically, on examination, he was walking with an antalgic gait. He did not have any weakness of dorsiflexion or plantar flexion", and

(iii) Dr Kam did not describe any features, symptoms nor physical signs which were descriptive of a radiculopathy, notably in S1 nerve root description;

(d) stated that it is well established that while microdiscectomy can be a very effective treatment for radiculopathy, it is generally ineffective in the management of mechanical low lumbar back pain, and in workers' compensation cases, may worsen the situation;

(e) expressed the opinion that the microdiscectomy is not only not reasonably necessary, but it is contraindicated;

(f) referred to his previous report in relation to alternative treatments, and stated that surgery is not the most preferred option, and

(g) stated that there is no probability that the surgery would have been required anyway, at about the same time or at the same stage of the applicant's life, if he had not sustained the injury or aggravation at work.

Dr Alan Hopcroft, orthopaedic surgeon, independent medical expert qualified by the applicant

(a) recorded a history of injury which included back pain which radiated into both buttocks and down the posterior aspect of both legs to his calves, and occasionally into his feet and the great toe bilaterally, with also some radiation of pain up his back towards his neck;

(b) noted that the applicant underwent CT guided hydrocortisone injections directed to the right L5/S1 facet joint by Dr Tosan Ajuyah on 1 November 2023 and CT guided right S1 nerve root injection with steroid and local anaesthetic on

1 December 2023, which gave no long-term improvement in the applicant's back pain sciatic syndrome;

(c) stated that the applicant: continues to suffer from ongoing and significant low back pain, and ongoing and significant bilateral sciatic symptoms, with pain worse in his right leg than his left, and extending down the posterior aspect of both legs and into his feet; suffers increasing pain in his right buttock; and suffers an aggravation of his back pain and sciatic syndrome with bowel opening requirements;

(d) conducted a physical examination and noted that: the applicant walks with an antalgic gait but that he can carry his weight on the toes of each foot and can go into a loaded flexion crouch to 120 degrees of loaded knee flexion bilaterally; the applicant has tenderness over the lower lumbar spine with some restriction in movements of his lumbar spine, particularly in right and left lateral bending and rotation manoeuvres; when lying supine, deep reflexes of both knees and ankles were present but significantly reduced and equal, to repeated examination, with the plantar responses downgoing; straight leg raising was limited to approximately 60 degrees on the left and 30 degrees on the right, and he had aggravated pain in elevating his buttocks and in right and left rotation manoeuvres of his thighs; no weakness in either lower limb was detected; the applicant could walk on both his heels and toes;

(e) stated that he reviewed available imaging and investigations, being: MRI Cervical and Lumbar Spine on 6 September 2023; CT-Guided Steroid Injection on

1 November 2023; and CT-Guided Steroid Injection on 1 December 2023;

(f) diagnosed a significant LS/S1 intervertebral disc protrusion, worse on the right than the left, and I believe from his history that has come from repetitive bending and heavy lifting activities in his employment with the respondent;

(g) expressed the opinion that the applicant's employment was the substantial contributing factor to the applicant's lumbar spinal injury;

(h) considered, but respectfully disagreed with, the opinion of Dr John Stephen in relation to the proposed surgery for the applicant;

(i) expressed the opinion that the L5/S1 right sided microdiscectomy surgery proposed by Dr Andrew Kam is reasonably necessary;

(j) expressed the opinion that the surgery will significantly improve the applicant's bilateral radicular symptoms and is more likely to bring about a radical improvement in the applicant's overall spinal incapacity;

(k) stated that regarding the applicant's back pain, he will have be very carefully education, advised and monitored into the future so that he doesn't see a deterioration in an L5/S1 intervertebral disc space which will be marginally narrowed by the surgical intervention, and

(l) expressed the opinion that the applicant is significantly compromised in his

pre-injury employment and endorsed the advice given to him by Dr Kam that he has to be extraordinarily careful into the future, avoiding forward flexion manoeuvres in any lifting activity, to avoid accelerating post injury and

post-surgery changes in the L5/S1 intervertebral disc and he recommended that the applicant should have a program of hydrotherapy and vertical traction manoeuvres with abdominal and back bracing exercises preoperatively, to ingrain in his understanding that forward bending activities should be always carefully undertaken and strictly limited in all his activities of daily living, both now and after neurosurgical intervention.

1. Counsel made oral submissions which were recorded.
2. On behalf of the applicant, Mr Hickey:

(a) referred me to various evidence in support of his submissions that the surgery is reasonably necessary as a result of the injury;

(b) submitted that Dr Stephen's evidence should not be preferred because: noted that Dr Stephen's supplementary report in October 2023 was basis on his one and only examination of the applicant in March 2024; Dr Stephen did not examine the applicant again after the applicant consulted with Dr Kam; Dr Stephen did not take proper account that the clinical records demonstrate the applicant's later complaints of progressively increasing radicular type pain more extensive in nature and down his lower limbs; stated that the applicant had no antalgic gait which was inconsistent with other evidence; stated that the applicant had no symptoms in his lower limbs which was inconsistent with other evidence; did not accept that there was radiculopathy which was inconsistent with other evidence;

(c) submitted that the Commission should prefer and accept the evidence and opinion of Dr Kam and Dr Hopcroft, whose examination of the applicant recorded antalgic gait;

(d) noted that Dr Hopcroft confirmed that the surgery is reasonably necessary as a result of the injury and that the surgery would likely improve the applicant's symptoms;

(e) considering the evidence as a whole, particularly the evidence of Dr Kam, Dr Hopcroft and Ms McKay, there is overwhelming evidence that the applicant had lower limb symptoms, radiculopathy consistent with the MRI scan, and

(f) the surgery is reasonably necessary as a result of the injury consistent with accepted case law.

(a) submitted that the respondent relies on the evidence of Dr Stephen;

(b) submitted that Dr Stephen highlighted the difference in medical opinion as to whether the applicant demonstrated radicular or radiation symptoms;

(c) submitted that the applicant's treating general practitioner expressed the opinion that the surgery is not reasonably necessary at this time;

(d) submitted that the evidence of the applicant's treating practitioner showed that the applicant had radiation of pain into the applicant's thighs but did not show evidence of radiculopathy, and

(e) submitted that the Commission should not be satisfied that the surgery is reasonably necessary at time because there is a difference between radiation of pain which was shown and radiculopathy which was not shown.

1. I have carefully considered the evidence in the context of those submissions.

1. Sub-section 60(1) of the 1987 Act relevantly provides:

"60 Compensation for cost of medical or hospital treatment and rehabilitation etc

(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

(b) any hospital treatment be given, or

(c) any ambulance service be provided, 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)."

Is the proposed treatment medical or related treatment?

1. The applicant seeks compensation for expenses of and related to the surgery, being right sided L5/S1 microdiscectomy, including pain and associated medication and post-operative physiotherapy including hydrotherapy once per week for six months.
2. That is clearly "medical or related treatment (other than domestic assistance)" within the meaning of s 60(1)(a) of the 1987 Act.

Is the proposed treatment reasonably necessary?

1. In Diab v NRMA Ltd,[1] Roche DP, referring to the decision in Rose v Health Commission (NSW),[2] set out the test for determining if medical treatment is reasonably necessary as a result of a work injury_:[3]_

"The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC2; [1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose) where his Honour said, at

'3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.

1. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
2. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and tis place in the usual medical armoury of treatments for the particular condition'."
3. Roche DP[4] also noted that the Commission has generally referred to and applied the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service:[5]

"The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary."

"Reasonably necessary does not mean 'absolutely necessary' (Moorebank at [154]). If something is 'necessary', in the sense of indispensable, it will be 'reasonably necessary'. Depending on the circumstances, a range of different treatments may qualify as 'reasonably necessary' and a worker only has to establish that the treatment claimed is one of those treatments. 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 ..."

"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."

1. There is no dispute that the applicant sustained injury to his back on 2 March 2023 in the course of his employment with the respondent.
2. In any event, there is no evidence that the applicant had any other prior injuries or conditions affecting his back, apart from an injury to his neck in April 2022 in the course of his employment with the respondent, from which he recovered.
3. In relation to the injury, I note that a CT - Lumbar Spine performed on 26 April 2023 showed a moderate-sized L5/S1 right central disc protrusion, with partially effaces the right lateral recess causing impingement of the right transiting S1 nerve root, and L4/5 demonstrated a small central disc protrusion. Further, an MRI Cervical and Lumbar Spine performed on

6 September 2023 showed a large posterior disc protrusion slightly eccentric to the right at L5/S1 with only corresponding mild grade spinal canal stenosis there. There was no evidence of any other significant spinal canal stenosis or foraminal stenosis. There was some contacting of the descending S1 nerve roots within the lateral recesses of the L5-S1 but there was no other nerve root contacting. 4. It is clear from the evidence that the applicant has consulted various treating practitioners and undergone treatment for pain and symptoms arising from the injury, including:

(a) a CT guided steroid injection performed to the right facet joint at L5/S1 on 1 November 2023;

(b) a CT guided steroid injection performed to the right exiting S1 nerve root;

(c) physiotherapy;

(d) exercise physiology, and

(e) pain relief medication.

1. The applicant's evidence, which is consistent with treating medical evidence, is that none of those treatments provided any enduring relief from his symptoms.
2. The applicant's evidence is that since the injury he suffers ongoing constant lower back pain which radiates from the lower back up to his shoulders and the back of his neck and down to the buttock and down the back of the leg down to his feet and big toes. The applicant states that sometimes he feels sharp or burning pain, especially during certain movements, and that sometimes he gets numbness or tingling in his legs and feet. The applicant's evidence is that the ongoing pain affects everything that he does and every aspect of his life, including going to the toilet, sitting and sleeping and it causes him to limp when he walks. When the pain is particularly bad, he needs to lie down.
3. The applicant's evidence in this regard is consistent with clinical records of the applicant's treating practitioners which have recorded that the applicant has continued to experience ongoing pain and symptoms notwithstanding those treatments.
4. Indeed, it appears from the treating clinical records that the applicant's symptoms have progressively worsened, to the extent that during 2024, Ms McKay recorded that the applicant reported pain in the left lumbar region down to the ankle and sharp pain in the side back passage, that the applicant's legs felt "very nervy", that he had pain across the lower back out to the hips, a sharp pain at the sacrum and pain deep inside the back passage when going to the bathroom. Ms McKay queried whether there was a possible nerve root irritation. In the latter half of 2024, Ms McKay reported that the applicant had radiating walking pain and some numbness at the left calf after walking. During 2024, Dr Ajuyah reported that the applicant presented with severe lower back pain radiated to the buttocks and legs bilaterally and that he was likely to have lumbar radiculopathy secondary to nerve root compression, which was not relieved by medication.
5. The applicant's treating specialist neurosurgeon, Dr Kam noted the applicant's history of acute onset of intense and severe lower back pain, initially with no leg symptoms whatsoever, and then developing daily leg pain and difficulty sitting, standing and walking for extended periods and walking with a limp. On examination, Dr Kam noted that the applicant walked with an antalgic gait.
6. Dr Kam recommended the surgery, being an L5/S1 microdiscectomy, noting that the MRI scan of the applicant's lumbar spine showed the presence of a right sided L5/S1 disc herniation, impacting on the right S1 nerve root. Dr Kam subsequently confirmed his recommendation of the surgery, stating that it is "not for the applicant's lower back pain but for his lower extremity symptoms" again noting that his physical examination of the applicant showed that the applicant had an antalgic pattern of gait.
7. Dr Ajuyah did not support the surgery at the present time, recommending that alternative treatment options be explored further.
8. The applicant clearly wishes to proceed with the surgery at this time, notwithstanding advice by Dr Kam regarding potential risks of the surgery. The applicant is of the view that alternative treatment options are unlikely to be successful.
9. The various treating medical reports and records consistently record that, notwithstanding various conservative treatments since the injury, the applicant has continued to experience ongoing lumbar pain, which radiates. However, significantly, it appears that the applicant's symptoms have progressively worsened to now additionally include an antalgic gait, pain down to the big toes, numbness in the calf, pain deep inside the back passage upon defecation, and his legs felt "nervy".
10. Considering the applicant's evidence and the treating medical evidence as a whole, I accept that since the injury, the applicant has experienced ongoing and progressively worsening pain and symptoms, including additional symptoms such as an antalgic gait, pain down to the big toes, numbness in the calf, pain deep inside the back passage upon defecation, and his legs felt "nervy".
11. Further, I accept that the treating neurosurgeon, Mr Kam, is of the opinion that the applicant's symptoms are consistent with pathology identified in the imaging and that the surgery would be appropriate to treat that injury.

1. In his report dated 11 June 2024, Dr Kam stated in relation to the costs of hospitalisation and surgery, stated that his surgeons fee based on the rates recommended by the Australian Medical Association was $6,800, with his assistant to incur 20% of those fees.
2. The respondent has not raised any issue regarding the quantum of the costs of treatment claimed by the applicant.

Availability of alternative treatment and its effectiveness

1. Whilst conceding that he is not a back specialist, in his report dated 26 March 2024, Dr Toshan Ajuyah, general practitioner, expressed the opinion that it is appropriate to explore alternative treatments to surgery at this time, such as hydrotherapy and radiofrequency neurotomy.
2. However, in his report dated 11 June 2024, Dr Kam, neurosurgeon, stated that the only alternative treatment would be ongoing pain medication and repeat procedures by a pain specialist. Dr Kam accepted that the applicant would need to undergo post-operative physiotherapy and hydrotherapy to facilitate his recovery, but that was required in addition to, not as an alternative to, the surgery.
3. Dr John Stephen, the independent medical expert qualified by the respondent, stated that he had no alternative treatment suggestions.
4. Dr Alan Hopcroft, the independent medical expert qualified by the applicant, did not identify any alternative treatments, although he did state that the applicant should undergo a program of hydrotherapy and vertical traction manoeuvres with abdominal and back bracing exercises preoperatively to educate the applicant regarding the importance of taking care of his back both now and after neurosurgical intervention.
5. Considering the evidence as a whole, I accept and prefer the evidence of the specialist doctors who have specialist expertise in treatment of conditions such as the applicant's condition. The applicant's treating general practitioner conceded that he is not a back specialist.
6. The applicant's evidence and the treating medical evidence consistently show that various conservative treatments, including pain relief medication, physiotherapy, exercise physiology and two CT guided steroid injections have not provided the applicant with any enduring relief of his pain and symptoms to date.
7. Indeed, it appears from the treating clinical records that the applicant's symptoms have progressively worsened in relation to demonstrating radiculopathy.
8. There is no evidence regarding the likely effectiveness of any alternative treatments.
9. Considering the applicant's history of various conservative treatments which have not provided enduring pain relief, I am not satisfied that any alternative treatments to the surgery have been identified which are likely to provide the applicant with any enduring relief from the symptoms.

Actual or potential effectiveness of the treatment and acceptance by medical experts of the treatment

1. The medical evidence in this matter is not straightforward and is somewhat challenging to reconcile.
2. As stated above, the treating neurosurgeon, Mr Kam has expressed the opinion that the applicant has lower extremity symptoms which are consistent with pathology identified in the imaging and that the surgery would be appropriate to treat those symptoms. Whilst acknowledging the risks of the surgery, Dr Kam stated that the surgery would likely benefit the applicant by reducing his leg pain by 85% to 90%, noting that occurred in approximately 85% of patients.
3. The independent medical expert qualified by the respondent, Dr Stephen, expressed the opinion that the surgery is not only not reasonably necessary to treat the injury, but that it is contraindicated. The primary basis for Dr Stephen's opinion in that regard appears to be that there was no evidence of radiculopathy.
4. However, the independent medical expert qualified by the applicant, Dr Hopcroft, supported the surgery as being reasonably necessary to treat the injury. Significantly, Dr Hopcroft, found bilateral radicular symptoms including significant bilateral sciatic symptoms, with pain worse in his right leg than his left, and extending down the posterior aspect of both legs and into his feet, increasing pain in his right buttock and an aggravation of his back pain and sciatic syndrome with bowel opening requirements. Dr Hopcroft expressed the opinion that the surgery will significantly improve the applicant's bilateral radicular symptoms and is more likely to bring about a radical improvement in the applicant's overall spinal incapacity. Dr Hopcroft emphasised the importance of post-operative treatment to support the applicant's ongoing recovery following the surgery.
5. As noted above, I accept the applicant's evidence and the treating medical evidence as a whole, and I accept that since the injury, the applicant has experienced ongoing and progressively worsening pain and symptoms, including additional symptoms such as an antalgic gait, pain down to the toes, numbness in the calf, pain deep inside the back passage upon defecation, and his legs felt "nervy".
6. I consider that the opinion of Dr Hopcroft is more consistent with the evidence regarding the progressive worsening and development of the applicant's symptoms, which now includes those additional symptoms which are consistent with radiculopathy of a right sided L5/S1 disc herniation, impacting on the right S1 nerve root.
7. On the basis of my reasoning and findings set out above, I do not accept the respondent's submission that there is no radicular symptoms which the surgery is to treat.
8. I prefer and accept the evidence of Dr Kam and Dr Hopcroft because, considering the evidence as a whole, I am of the view that it provides a reasoned and sensible explanation which is consistent with the applicant's evidence and the treating evidence and that it provides a logical and likely explanation for the applicant's ongoing and developed symptoms and restrictions. The applicant's treating surgeon, Mr Kam, has had the opportunity to closely examine the applicant and I accept that he is well placed to form a sensible opinion regarding the optimum treatment for the applicant's condition. Further, I consider that the opinion of Dr Kam and Dr Hopcroft is based on a sound understanding of the applicant's ongoing symptoms and restrictions caused by the condition which is supported by treating medical evidence, and I accept.
9. Having considered the evidence in the context of the criteria referred to in Diab and Rose, I am satisfied that the surgery and the post-operative treatment is reasonably necessary.

Does the need for the proposed treatment arise as a result of a work injury?

1. In Murphy v Allity Management Services Pty Ltd[8] Roche DP stated at [57] and [58]:

"... 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 Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd [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. In Watts, the High Court discussed the evidentiary onus where a defendant relies on evidence of some alternate cause of a plaintiff's disability. In Lamont-Salter v Qube Ports Pty Ltd [2021] NSWPICPD 15 at [40] to [43], Snell DP considered Watts and observed that it and other decisions make it clear that the ultimate persuasive onus remains with the applicant.
2. As noted above, it is not in dispute that the applicant sustained the injury in the course of his employment with the respondent.
3. There is no evidence of any other condition or injury affecting the relevant body parts.
4. As noted above, I accept that the applicant has ongoing symptoms and restrictions resulting from the injury.
5. For the reasons stated above, I prefer and accept the evidence of Dr Kam and Dr Hopcroft. Considering the evidence as a whole, I am of the view that their opinions provide a reasoned and sensible explanation which is consistent with the applicant's evidence and the treating evidence. Further, I am of the view that it provides a logical and likely explanation for the applicant's ongoing symptoms and restrictions caused by the condition which is supported by treating medical evidence, and I accept.
6. Having regard to my findings in relation to the injury above, I am satisfied that the need for the surgery and the post-operative treatment arises as a result of the injury.

(a) the surgery was reasonably necessary as a result of the injury pursuant to

ss 59 and 60 of the 1987 Act.

(b) the respondent to pay the costs of and incidental to the surgery, including pain and associated medication and post-operative physiotherapy including hydrotherapy once per week for six months, pursuant to s 60 of the 1987 Act.

[1] [2014] NSWWCCPD 72.

[2] [1986] NSWCC2; [1986] NSWCC 2; (1986) 2 NSWCCR 32.

[3] [2014] NSWWCCPD 72, at [76].

[4] [2014] NSWWCCPD 72, at [78].

[5] [1997] NSWCC 1; 14 NSWCCR 233.

[6] [2014] NSWWCCPD 72, at [86].

[7] [2014] NSWWCCPD 72, at [88]-[89].

[8] [2015] NSWWCCPD 49 at [57].