1. Amend the name of the respondent wherever it appears to read Sean Mitchell Agencies Pty Ltd.
2. The Certificate of Determination dated 22 April 2024 is confirmed.

WORKERS COMPENSATION - Workers Compensation Act 1987 section 60 - whether need for surgery "results from" injury - alleged factual error

McQuillan v Sean Mitchell Agencies [2024] NSWPIC 202

1. Brett McQuillan (the appellant) was employed by Sean Mitchell Agencies (the respondent) at its premises at St Marys for 24 years.[1] He worked as a supervisor/yardman, which, at least, from time to time involved very arduous work. During the course of this work, he suffered several injuries to his back. He came to lumbar surgery in 2006. While the evidence is unsatisfactory, it appears he ceased working for the respondent in June 2018. He now requires further surgery to his lumbar spine as proposed by his treating spinal surgeon, Dr Singh.
2. The appellant first experienced back pain the late 1990s, however, his symptoms either abated or ameliorated, and he continued to perform his ordinary work.[2] In May 2005, after lifting heavy boxes in a confined space, he suffered an exacerbation of his back pain and experienced severe symptoms in his right leg. In due course, the appellant's general practitioner, Dr Anderson, referred him to Dr Seex, a neurological and spinal surgeon, who recommended lumbar surgery. On 9 January 2006, Dr Seex performed an L4/5 microdiscectomy and inserted a Wallis device in the appellant's spine at Nepean Private Hospital.
3. Following his surgery, the appellant returned to work with a weight limit imposed on lifting. He continued to complain of back pain when performing heavy work.[3] He also developed a depressive illness.[4] In February 2013, the appellant was involved in a non-work-related motor vehicle accident which Dr Seex considered had "significantly aggravated" his chronic back pain.[5] Again, he resumed his employment following treatment.
4. On 15 July 2015, the appellant suffered a further injury to his back whilst pushing an 800-pound sandstone block with four co-workers at the respondent's premises.[6] He sought treatment from Dr Anderson and a physiotherapist but continued to work. He complained from time to time that arduous work was exacerbating his lumbar symptoms. On 2 January 2018, the appellant reported to Dr Anderson that he had sustained a further exacerbation of symptoms after lifting a 40kg truck tyre.
5. On 20 April 2020, the appellant saw Dr Lim, a general practitioner at Parramatta, who recorded that the appellant had suffered injury on 1 June 2018 to his back and other body parts "from the nature of his physical work". He was certified as unfit for work and referred to a physiotherapist, a psychologist, and Dr Singh.[7]
6. After a protracted period of conservative treatment, Dr Singh sought approval from the respondent's insurer, icare, to undertake an L3-S1 decompression and fusion (stage 2) at a date and place to be arranged. icare denied that the proposed surgery was reasonably necessary as a result of employment injury in accordance with s 60 of the Workers Compensation Act 1987 (the 1987 Act). At issue was whether the need for the surgery proposed by Dr Singh results from the injury sustained by the appellant on 15 July 2015.

1. By an Application to Resolve a Dispute (ARD) lodged with the Commission on 9 February 2024, the appellant claimed weekly payments of compensation from 11 April 2022 and continuing and an order that the respondent pay the cost of the L3-S1 decompression and fusion proposed by Dr Singh. The Application recorded the "Date of injury" as 15 June 2005. The basis and relevance of that date is unclear. However, under the heading "Injury Description/Cause of Injury and Death" the following appeared:

"Injury to lumbar spine when lifting an 800 pound sandstone block at work on 15 July 2015. I now require lumbar L3-S1 decompression and fusion surgery as requested by Dr Bhisham Singh".

1. When the matter came on for a conciliation conference and arbitration hearing before Member Strachan on 2 April 2024, Mr Carney, of counsel, appeared for the appellant and Mr Barnes, of counsel, appeared for the respondent. During the conciliation conference, the claim for weekly payments was withdrawn. At the commencement of the arbitration hearing, the Member stated:

"The issue for determination is whether the proposed surgery to the [appellant's] spine is reasonably necessary as a result of injury sustained by the [appellant] on 15 July 2015. During the conciliation phase it is agreed that the date of injury be amended to 15 July 2015 and that it be pleaded as a disease condition."[8]

1. There is no issue on appeal that the Member accurately recorded the nature of the dispute. The context reveals that his reference to a "disease condition" is an acknowledgement that the injury aggravated a pre-existing disease. It was not pleaded or argued that the appellant's condition was an injury which "consists in" the aggravation of disease and attracts the operation of ss 15 or 16 of the 1987 Act.[9]
2. At the commencement of the arbitration hearing, the respondent objected to the appellant relying on multiple medical reports. The appellant elected to rely on a report of Dr Chien, an orthopaedic surgeon. It followed that the reports of Dr Stephenson and Dr Bentivoglio, both of whom are orthopaedic surgeons, were excluded from the evidence by operation of cl 44 of the Workers Compensation Regulation 2016. As there was no application to adduce oral evidence, the matter proceeded on the basis of the documentary evidence. The submissions of counsel were unusually terse.
3. Mr Barnes took the Member through the reports of Dr Smith, an orthopaedic surgeon qualified by the respondent, who expressed the opinion that the appellant would have recovered from the subject injury "after three months at the most".[10] Mr Carney submitted that the injury that occurred on 15 July 2015 materially contributed to the need for a spinal fusion. While they were "building on the earlier injuries", his back and leg pain had increased from that time as "outlined by Dr Singh ... and Dr Chien."[11] Mr Carney emphasised the physical effort expended in moving the boulder. He quoted extensively from the evidence of both Drs Singh and Chien.
4. During the arbitration hearing, Mr Barnes conceded that there was no real issue that the surgery proposed by Dr Singh was "reasonably necessary".[12] However, he pressed the issue that the proposed surgery did not result from the injury of 15 July 2015.

1. The Member delivered a written decision on 22 April 2024. He found that the proposed treatment was "reasonably necessary" in accordance with the principles propounded by Roche DP in Diab v NRMA Ltd.[13] He considered the case law concerning the term "results from" in s 60 of the 1987 Act, including Kooragang Cement Pty Limited v Bates[14] and Comcare v Martin.[15] He concluded that he was "unable to place any significant weight on the opinions of Dr Singh and Dr Chien that the need for the proposed surgery results from the 15 July 2015 incident". Conversely, he accepted the opinion of Dr Smith that the "nature of the 15 July 2015 exacerbation" was "self-limiting".[16]
2. The Member concluded his consideration of the caselaw thus:

"I am cognisant that the injury of 15 July 2015 need not be the only or even a substantial cause of the need for the proposed surgery. It must however, on the evidence available to me, to have materially contributed to the need for the proposed surgery. No evidence to that [e]ffect is before me and I am not persuaded of this."[17]

1. The Member made an award for the respondent. He stated that as only one injury was pleaded, he:

"made no findings or determination with respect to whether the need for surgery results from the 2005 injury or the nature of the [appellant's] employment with the respondent more generally since that time."[18]

1. The Certificate of Determination issued on 22 April 2024 relevantly records that:

"1. The surgery proposed by Dr Singh is reasonably necessary treatment within the meaning of s 60 of the Workers Compensation Act 1987.

1. The need for the proposed surgery does not result from injury sustained by the [appellant] on 15 July 2015.
2. Award for the respondent."
3. It is from this determination that the appellant brings this appeal.

"The Member erred in finding that the need for the claimed back surgery did not arise from the incident of 15 July 2015."

1. The appellant's submissions were prepared by Mr Kato Simpson, his former solicitor. In concluding his argument, the appellant submits that the Member misdirected himself in three material respects:[19]

(a) "on the history of complaint given by the worker [to medical practitioners] after 15 July 2015".

(b) "as to the contents of the reports of Drs Singh and Chien, [as] on examination they do refer to 'incidents [of] heavy lifting at work' causing the need for surgery."

(c) "as to the significance of the actual events that took place on 15 July 2025 [sic] and the reported symptoms [suffered by the appellant] thereafter."

1. In addressing these matters, the appellant submits that the Member misunderstood or took out of context his evidence that his symptoms "settled after a few weeks" following the subject injury. The Member did not consider his evidence that following this injury he had "continuing and increased pain in his left leg".[20] This was compounded by a failure to consider the clinical notes of the general practitioner, Dr Anderson. The appellant submits these revealed that:

"for ten years prior to 15 July 2015 [the appellant] had no time off work and from 15 July 2015 his back pain was occurring after almost every time he was asked to do heavier work."[21]

1. The appellant then argued that the Member failed to "compare" the "three incidents" which may have been causative of the appellant's need for surgery. He did not consider the massive weight of the boulder that the appellant was pushing in July 2015. While the incident in 2005 was significant, an incident in February 2017 was "relatively minor". The appellant was only lifting slats weighing 60kg. The appellant reiterated the argument that the Member failed to consider the continuing back and leg pain he suffered following the subject injury, as evidenced by his complaints to his general practitioners and by Dr Singh.[22] The complaints recorded by medical practitioners of "radiculopathy" and "left leg sciatica" demonstrate that:

"the injury of 15 July 2015 has caused a serious escalation of symptoms that now founds the need for surgery."[23]

1. The appellant then argued that the Member did not provide an adequate explanation for his conclusion not to accept the opinion of Dr Chien or Dr Singh on causation. This also resulted from his failure to "examine or properly assess the symptoms of radiculopathy" in the appellant's legs after the subject injury. Both Dr Chien and Dr Singh had a sufficient history to enable them to express an opinion that the injury of 15 July 2015 "is a material cause for the [need for] surgery".

1. By its submission the respondent argues that at [49]-[60] inclusive of his reasons, the Member "comprehensively" recorded a medical chronology of the appellant's treatment "prior to and following the injury received on 15 July 2015". Contrary to the appellant's submissions, the Member summarised and gave weight to the complaints recorded in the clinical notes of the treating general practitioner and other doctors.
2. The respondent submits that the Member "weighed all of the available medical evidence including the contemporaneous records" and the expert opinion of Dr Smith in reaching his conclusion that he was "not satisfied that the [appellant] has discharged his onus of proof."[24]

1. As the criticism of the Member's reasons involves a consideration of the contents of the appellant's evidence, the contemporaneous medical records, and the reports of Dr Chien and Dr Singh, it is necessary to refer to those documents. What follows is not intended to be a comprehensive survey of all of the medical evidence in the matter or to supersede the Member's detailed recording of this evidence. Rather, I set out the salient matters so that the nature of the dispute between the parties and the way in which the Commission has resolved this appeal can be more readily understood. As the appellant was treated for many years by Dr Seex, the spinal surgeon, I commence with a review of his reports.

1. Dr Seex initially saw the appellant at the request of Dr Anderson on 28 September 2005 and provided a report of that date. Dr Seex recorded that the appellant suffered an onset of back pain and right leg pain after lifting heavy boxes on 12 May 2005. He also recorded a history of an incident some 10 years earlier with a similar episode of back pain which had "completely resolved".
2. On examination, Dr Seex found foot drop and sensory loss in the appellant's right leg. He recorded that a CT scan showed a large, sequestered fragment at L4/5 which was "causing complete effacement of the L5 nerve root". He expressed the opinion that the appellant should undergo surgery as soon as possible. He thought that to "minimise ongoing chronic back pain problems" the implantation of a Wallis device at L4/5 was also prudent. He stated:

"In general terms his work is clearly quite heavy and it might be appropriate that he consider developing other skills because of the potential long term issues. He is going to consider this and I will see him back following his MRI."[25]

1. On 28 October 2005, Dr Seex expressed the opinion that a recent MRI scan had demonstrated an "extension of the disc protrusion" which was compromising the L4 nerve root. The "problems" at L4 and L5 explained "his right sided ankle weakness".
2. Dr Seex operated on the appellant at Nepean Private Hospital on 9 January 2006, performing an L4/5 microdiscectomy and, as proposed, inserted a Wallis device.[26] He reviewed the appellant on 17 February 2006, when he had a significant improvement in his back and leg pain. He thought a weight restriction at work of "about 10 kilograms for at least a further six weeks" was appropriate.[27]
3. On 16 May 2006, Dr Seex recorded that the appellant had "a degree of chronic back pain". He complained of "variable" leg pain. His weight had increased, and he was complaining of "depressive type symptoms". He recorded:

"From his back point of view returning to regular work involving repetitive heavy lifting is just not sensible and I have discussed this with him. I think if there are alternatives available, he should seek them."[28]

1. On 22 August 2006, Dr Seex reported that the appellant's depression had lifted and his "back pain [was] much more manageable because of that". He was "back at work and [had] a more positive approach to things".
2. On 23 March 2007, Dr Seex recorded that the appellant had taken a "slight backwards step". He had been required to lift "more than his allowed 15 kilograms" causing a flare up of back pain. Dr Seex stated that the appellant needed to "look after his back". He continued:

"He has multi-level degenerative changes and it is hard to know which of these are causing his ongoing symptoms. I certainly wouldn't contemplate further intervention on him at this point."[29]

1. In a report addressed to GIO General Limited dated 24 May 2007, Dr Seex noted that:

"with returning to work he had an increase in his back pain and basically thereafter seemed to have significant back pain associated with his work."

The doctor reported that the appellant described repeated lifting of fairly heavy boxes, which was consistent with his degenerative disease and disc prolapse at L4/5. He stated that the appellant was headed towards a "permanent condition."[30]

1. On 15 November 2011, Dr Seex reported that the appellant experienced aggravation of his back pain at work in the Christmas rush. He complained of pain radiating down "the inside of his left leg below the knee". Dr Seex advised him to consider losing weight and changing occupations. He did not think there was "any indication for surgical management."[31]
2. On 9 April 2013, Dr Seex reported that the appellant was aware of a "new sensory loss in the top of his right foot and weakness" which had "improved slightly with physiotherapy". On examination, he noted "altered sensation in the L5 dermatome and weakness of the big toe". Dr Seex thought that it was appropriate to see the appellant again in 3 months, but he suspected that the aggravation would probably settle and "just go back to its previous state".[32]
3. On 23 July 2013, Dr Seex recorded that the appellant had been managing his "chronic back pain". He recorded that it had been "significantly aggravated" following a motor vehicle accident in February of that year. He had irritation of the L5 nerve "producing a mild foot drop". He expressed the opinion that an MRI showed "more advanced degeneration" at the L4/5 level and "probably some compression on the L5 nerve root". He continued:

"Nevertheless I am not keen to suggest further treatment here. This would really have to be fusion surgery, and I think it might be prudent just for us to continue with conservative therapy in the meantime and hopefully avoid this. If we are going to do this I think we can do this with a lateral approach with a large interbody cage and a plate."[33]

1. The doctor contemplated that performing this surgery may be difficult given the appellant's weight. While surgery was technically possible, he stated "we will try to avoid this and we will give him another few months and he will consider this."[34]
2. There are no further reports from Dr Seex, although it seems probable from the clinical notes of the Astley Medical Centre that the appellant consulted with a neurosurgeon, probably Dr Seex, on at least one occasion thereafter. The clinical notes of the medical centre, which I address below, may also be incomplete.

1. Relevantly, on 4 August 2014, Dr Lin recorded that the appellant had "lower back pain for a few days" which was worse when sitting. There were no neurological signs and on examination the appellant had a good range of movement.
2. On 27 August 2014, Dr Anderson reported that the appellant experienced:

1. On 29 September 2014, Dr Clarke took a history of:

1. On 25 October 2014, Dr Anderson recorded that the appellant suffered neuropathy. He noted a complicated history including:

"chronic spinal injury post op/and MVA and subsequent exacerbation."

Dr Anderson noted that the appellant had seen Dr Presgrave, a neurologist, for nerve conduction studies, and Dr Shaffi, possibly a neurologist, for an opinion. He recorded that there was:

further NCS[35] at RPA was suggested."[36]

1. In January 2015, the appellant was seen by Dr Anderson in respect of his diabetes. He was diagnosed with peripheral neuropathy.
2. On 8 September 2015, Dr Anderson recorded a history of back pain: "acute on chronic" when "pushing rocks in showroom 5 weeks ago". The doctor recorded that the appellant had "more sciatica [in his] left leg" since the injury. The appellant had seen a physiotherapist, but his condition was "slow to progress".
3. On 29 September 2015, Dr Anderson recorded that the appellant had back and leg pain:

The doctor also recorded the appellant's "concern" as to whether the company would survive.[37]

1. On 27 February 2016, Dr Anderson recorded that the appellant was suffering from "back and leg pain". He recorded that there was:

change in direction of company - more heavy lifting needed, job may no longer be suitable for pt."[38]

1. On 22 February 2017, Dr Anderson recorded that the appellant was moving a "shipment of goods in January". He recorded that:

"His chronic back issues has flared since ... some intermittent L) leg symptoms".[39]

1. On 17 August 2017, the appellant reported that boxes were "now up on shelving". This required him to use ladders to lift some boxes weighing in excess of 25kg. He said this was not acceptable to the workers compensation insurer.
2. On 17 October 2017, Dr Anderson recorded a complaint that the respondent was working the appellant "too hard". He suggested that he "look at alternative employment - before considering resigning".[40]
3. On 2 January 2018, Dr Anderson recorded that the appellant had been allocated to a different job by the respondent. The appellant complained of back pain with referred leg pain. He recorded:

1. On 9 May 2018, Dr Anderson saw the appellant after he had seen a surgeon for an unrelated problem. He recorded that:

"Current job less approp as too much heavy lifting/bending

supposed to be on 10 kg wt restriction with limited lifting".[42]

1. On 14 April 2020, the appellant saw Dr Eric Lim, general practitioner, at Parramatta. Dr Lim recorded the following history:

"On Friday, 1 June 2018 Mr McQuillan reported that whilst at work he suffered a neck, shoulder and back injuries from the nature of his physical work. He pushed a heavy sandstone boulder at work on 15/7/2015 and continued to work. He previously had a back injury requiring surgery in 2005 for the same employer. On 1/6/2018, he was made redundant after returning to work for a week. He was off work for 9 months long service leave approx."[43]

1. On 19 May 2020, the appellant saw Dr Singh on referral from the Workers Doctors. Dr Singh recorded a history of:

"lower back and leg pain secondary to workplace injuries to his lumbar spine and abdomen. He had a workplace injury several years ago with sciatica resulting in L4/5 discectomy and the use of her [sic] Wallace [sic] implant.

Subsequently he has had heavy lifting and pushing and references a few work-related incidents when he had to do more than light-duty for several years. He has had lower back pain sometime and ... has recently been made redundant."

The doctor thought that the appellant had "degenerative disease with loss of disc height and disc bulging" in the lumbar spine.[44]

1. At a consultation on 14 July 2020, Dr Singh reiterated that the appellant had "multilevel disc pathology" in the lumbar spine. He raised the possibility of a surgical option in the form of a multilevel lumbar spinal fusion if symptoms persisted in the appellant's spine.
2. At a consultation on 16 February 2021, Dr Singh noted that, following a discussion about future treatment, it was agreed "to try and manage with conservative management" the appellant's lumbar pain. However, the doctor thought that it was likely that he would "require surgery in the future".[45]
3. On 7 May 2021, Dr Singh wrote to Employers Mutual Limited, advising that he did not agree with the opinions of their qualified orthopaedic surgeon, Dr Smith. He stated that the appellant had "ongoing symptoms which are not resolving with conservative treatment". He recommended surgical treatment from L3 to S1 with a prosthesis.[46]
4. By a report of 17 April 2022,[47] Dr Singh noted that he had seen the appellant on 11 occasions, having last examined him on 31 March 2022. He expressed the opinion that the appellant had "clear symptomatic structural pathology in the lumbar spine." In view of the failure of conservative treatment, surgical stabilisation was "reasonably necessary." He expressed the opinion that the disc space at the site of his previous decompression at L4/5 had "completely collapsed". He recorded the following history:

"He had lower back and leg pain secondary to workplace injuries to his lumbar spine and abdomen. He had a workplace injury several years ago with sciatica resulting in L4/5 discectomy and the use of an interspinous Wallis implant.

Subsequently, he has had to do heavy lifting and pushing. He references a few work related incidents when he had to do more than light duty for several years. In the neck, he had symptoms of neck pain with pins and needles in the arms."

1. Dr Singh also commented on the medical reports of Dr Smith. He said this:

"I have seen the reports by Dr Smith. He acknowledges that there was a previous work-related injury in 2018. I do not agree with this statement that there would be no symptoms present after any injury to the lower back after three months from the date. This patient was asymptomatic prior to the exacerbations in the workplace when he was asked to do heavy work instead of light duties. He has previously had surgery, and has some changes secondary to that. However, he now has disc bulging at adjacent level is at L3/4 and L5/S1. He has been diligent with conservative treatment and physiotherapy. The need for surgery is due to exhaustion of nonoperative options, and work and aggravation in the workplace are the main contributing factors to the need for surgery."

1. Dr Chien, an orthopaedic surgeon, saw the appellant at the request of his then solicitors on 23 November 2023 and provided a report of that date. He took the following history:

"Brett sustained multiple injuries at work. For one of those incidences, he had radiculopathy and underwent an L4/5 discectomy with the use of an implant. A while after, he was asked to resume heavy lifting and pushing for his employment.

He has ongoing symptoms of L5 nerve root irritation and is noted to have an L5/S1 disc bulge. Also, at L3/4, there is a foraminal disc bulge."

1. The doctor expressed the response to an enquiry as to whether the need for surgery resulted from the appellant's work, the doctor stated:

"The need for surgery arose from Brett's work. He had a recognised injury to the L4/5 with the use of an implant. Not only do these implants are known [sic] not to last very long, but spinal injuries tend to progress and affect adjacent levels even after surgical treatment and even when discontinuing heavy lifting."

1. In response to the opinion of the respondent's qualified doctor, Dr Smith, Dr Chien expressed the opinion that the appellant suffered pain and loss of function. He said:

"It was aggravated by his return to work. He only had a decompression and spinal disc implant rather than a fusion meaning that it will tend to fail."

He thought that the Scheuermann's Disease was "rather irrelevant" in the light of a history of an L4/5 injury requiring discectomy and a Wallis implant.[48]

1. The appellant's evidence is contained in three documents. The first in time is a handwritten letter addressed to the respondent's insurer, dated 14 May 2018. In that letter, the appellant gives a detailed account of an attempt to move a "large boulder" which weighed "about a tonne" in the respondent's warehouse.[49] This is undoubtedly a reference to the pleaded injury. The appellant recounts several failed attempts to move the boulder with a forklift, which involved his use of a jack hammer to reduce its size. He was then requested by his employer to assist in pushing the boulder. He continues:

"I told Sean 'I should not be doing this' as he knows I have a bad back injury sustained working for him in 2005, the injury requiring surgery and a plastic grommet called a Wallis device being placed between L4/L5 vertebraes, after surgery in 2005, I kept working for SMA until present on a permanent lifting restriction of 10kg, not to[o] much bending and no repetitive lifting which GIO Insurance have record of. Over the years I have had many flare ups of my back injury as at SMA there really is not light duties available."[50]

1. Despite his protests, the respondent required the appellant to join a group of five men in an effort to push the boulder off the tines of the forklift. The appellant states that he could:

"feel pressure of pushing the rock on my spine which caused me pains and aches in my back, legs and stomach. As I have pain all the time I thought I had flared it up and the pain would go away, the aches and pain stayed for a while but settled down after a few weeks."[51]

1. The appellant then describes being required to perform a job securing slats, which weighed "about 60 kg each", in the respondent's new storeroom. He continues:

"The job took about a week, I was in pain most of the time and just to get the job over with. In the next few weeks I had pain in my legs, back and stomach all from doing this job which was against my medical lifting limits, which the company knows."

Following this incident, the appellant called his lawyer and stated that he wanted to "make a claim for the pain [he] was in."[52]

1. The appellant then describes a further incident in 2017, when a container of boxes arrived at the respondent's premises from Indonesia. He states:

"At the end of the day of bringing in all the boxes by carrying them, my back was in compression which causes me pain in back, legs, feet and stomach. 4 to 5 containers come in a year on average."[53]

The appellant says that whilst they got the job done "as always I was in pain for some time after unpacking container."

1. By a typed signed statement of 3 June 2022, the appellant records that his work was "hands on type of work" and was initially very heavy. He then describes two incidents at work. He states:

"On 15 June 2005 I was required to lift heavy boxes of clothing weighing approximately 30kgs each. I suffered injury to my neck, right arm, right shoulder, left arm, left shoulder, abdomen, back, right leg and left leg.

On 15 July 2015 I was asked to assist co-workers to push an 800 pound sandstone block off a forklift. Whilst pushing the sandstone I suffered injury to my neck, back and both legs. I also felt a strain in my abdominal muscles. This settled in the following weeks but I had some degree of pain present in my back with symptoms radiating down my legs."[54]

"Due to the nature and conditions of my employment I suffered further injury to my lumbar spine."[55]

The appellant then states that he has been treated by Dr Singh, who had advised him to undergo a L3/S1 decompression and fusion, and that he wishes to undergo the surgery.

1. By a signed statement of 4 August 2023, the appellant describes both the injury on 15 June 2005 and the injury on 15 July 2015 when he was pushing a sandstone boulder. He does not elaborate on the effect of either of those injuries on his function or pain levels. He merely states that as a result of "my injury", he has suffered pain, distress, and anxiety and has a reduced capacity to fully participate in normal employment.[56]

1. Section 52(3) of the Personal Injury Commission Act 2020 provides:

"(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing."

1. Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed 'on the papers' without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

1. There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
2. It is apparent that the named respondent is not a legal entity. By emails dated 11 March 2025, the solicitors for the parties agreed that the name of the respondent is Sean Mitchell Agencies Pty Ltd. I have made an order reflecting that agreement.

1. Section 60 of the 1987 Act which deals with the cost of medical or hospital treatment, in so far as it is relevant, is as follows:

"(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. The appellant suffered an injury in the course of his employment in May 2005, which brought him to surgery in 2006. The respondent's insurer accepted liability for that injury and indemnified the appellant in respect of its costs. Subsequent to the surgery in 2006, the appellant made multiple complaints of increasing back pain and leg pain while performing physical work for the respondent. There is medical evidence that the nature of this work caused an aggravation of his pre-existing spinal vulnerability resulting from surgery. It appears from the correspondence between its insurer and the Workers Doctors that the respondent accepts that the nature of the appellant's employment before 1 June 2018 caused an injury, probably in the nature of the aggravation of a disease, as it met his medical expenses from the date of his retrenchment.[57] There is cogent medical and lay evidence that the need for the lumbar surgery proposed by Dr Singh results from either or both of these injuries. The respondent did not argue at the hearing that such surgery was not reasonably necessary. In these circumstances, it is difficult to understand why the respondent has not agreed to pay the cost of surgery. It is to be hoped that it will reconsider its position following the determination of this appeal.
2. After his return to work in 2006, the appellant suffered a number of other incidents, which probably constitute injuries in the course of his employment. He also aggravated his back pain in a motor vehicle accident in February 2013.[58] While it may not be exhaustive, the list of back injuries which emerge from the evidence include the incident on 15 July 2015; an incident in January 2016, when the appellant was securing slats of the new showroom wall;[59] the unloading of boxes weighing up to 50 kg each in 2017; and an exacerbation of back pain after he lifted 40 kg truck tyres in January 2018.[60] Throughout the latter years of his employment the appellant made consistent complaints to his general practitioner that he was required to perform work which caused him increased back and leg pain.
3. Against that background, the appellant's reliance on only one of these incidents as causative of his need for spinal surgery is perplexing. It is true, as the Member observed, that an injury need not be the only or even a substantial cause of the need for surgery.[61] If there are multiple causes of a condition, it is sufficient if the injury materially contributed to an incapacity or the need for treatment.[62] This approach to causation, together with the disease provisions in ss 4(b) and 15 and 16 of the 1987 Act, facilitates a worker's claim for compensation. However, it remains necessary for parties to make sound choices in respect of their pleadings. Where there are multiple compensable injuries, claiming compensation against only one of those injuries may diminish a worker's prospects of success on his or her claim. Moreso, if the medical support for a causal nexus between the injury alleged and the incapacity or need for surgery is, as in this case, problematic.
4. The appellant does not allege that the Member's analysis of the phrase "results from" in s 60 of the 1987 Act was wrong. After considering the discussion of that phrase by Kirby P (as his Honour then was) in the Court of Appeal in Kooragang and of Roche DP in Murphy, the Member concluded that the "[i]ssues in dispute must be determined by a careful analysis of the evidence".[63] That approach is undoubtedly correct. Any suggestion that the issue of causation can be determined otherwise is plainly inconsistent with these authorities. Thus, the appeal alleges factual error. The principles applicable to a review of factual error in an appeal pursuant to s 352 of the 1998 Act are well known. They are as set out in Raulston v Toll Pty Ltd[64] at [19]. A member's factual findings should not be disturbed unless it can be established on the evidence that the conclusion was wrong.
5. In Northern NSW Local Health Network v Heggie,[65] Sackville AJA said:

"A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519, per Mason and Deane JJ."

1. In Workers Compensation Nominal Insurer v Hill,[66] Basten JA said the following at [20]:

"If, on appeal by way of rehearing, the Court asked whether the findings of fact were 'open' to the trial judge, that might demonstrate an unduly limited understanding of the court's function; however, that language is not out of place in determining an appeal from factual findings under s 352(5)."

Failure to consider evidence of increased back and leg pain following injury of 15 July 2015

1. There is no dispute that the appellant suffered an injury to his back on 15 July 2015 when pushing a boulder. Equally, there is no doubt that he had a significant pre-existing condition of his back at that time. It is not apparent that he lost time from work following the injury. By his initial handwritten statement,[67] he states that, as he had pain "all the time", he thought he had "flared it up" in pushing the heavy boulder. He recounts the increased pain "stayed for a while but settled down after a few weeks." The term "settled down" is, of course, ambiguous. However, as he has the onus of proof, the evidence does not assist the appellant's case that the need for surgery resulted from the injury of 15 July 2015.
2. Contrary to the appellant's submissions, the Member did not take this evidence out of context. He considered it in the context of the appellant's written evidence and the medical history, particularly the clinical notes of the Astley Medical Centre. He recorded the following findings at [106]:

"(a) he had ongoing back complaints pre-existing the 15 July 2015 incident;

(b) his symptoms following the 15 July 2015 'settled down' within a short period and prior February 2016. The [appellant] continued to work;

(c) placing the statement of the worker within the context of the clinical notes, the incident involving slat wall pieces occurred in about February 2016 and was of sufficient seriousness for the [appellant] to consult a solicitor. The [appellant] continued to work following the incident, and

(d) a further incident occurred in February 2017 involving the movement of goods from a shipping container."

1. The appellant argues that the Member failed to give appropriate weight to the fact that he suffered "continuing and increased pain in his left leg following the injury". But the history of the appellant's leg pain is not so straight forward. He complained of symptoms in both legs in association with back pain from time to time before 15 July 2015. On 15 November 2011, he complained to Dr Seex of pain radiating down his left leg "below the knee" after heavy work. On 9 April 2013, Dr Seex reported that the appellant had altered sensation in the L5 dermatome and weakness of the big toe on the right side.[68] On 23 July 2013, Dr Seex diagnosed irritation of the L5 nerve "producing a mild foot drop". On 27 August 2014, Dr Anderson recorded that the appellant had back pain and "some weakness toes", although by this time the appellant's lower limb weakness is complicated by the probable onset of diabetes, which may explain some of his peripheral symptoms. When Dr Anderson saw the appellant, following the injury of 15 July 2015, on 8 September 2015, he recorded that he complained of "more sciatica" in the left leg.
2. It is evident from the above, that the appellant's leg pain did not commence at the time of the injury on 15 July 2015. He had obvious neurological signs in 2013. While Dr Seex was reluctant to consider further surgery in 2013, he discussed with the appellant the possible need for a fusion of the lower lumbar spine by a "lateral approach" on 23 July 2013. Further, it is not evident from a review of the clinical notes of the Astley Medical Centre that the appellant had continuous leg pain after 15 July 2015. On 22 February 2017 and on 2 January 2018, Dr Anderson referred to the appellant suffering "intermittent" leg symptoms. It is not readily apparent from the evidence how this differs from his presentation before 15 July 2015.
3. It might be inferred from the medical evidence that lower limb symptoms may be a manifestation of a lesion/s in the lumbar spine. But there is no unambiguous evidence from the appellant that he suffered materially increased and persisting lower limb symptoms following the injury. His relatively contemporaneous account in the letter of 14 May 2018, which the Member accepted, suggests the opposite; that his symptoms returned to their previous level in the weeks following the injury. The appellant's signed statements do not grapple with the medical history of leg pain before the injury of 2015 or the effects of the subsequent injuries or the work that he performed after the injury. While left leg pain might suggest the possibility of a lumbar lesion, whether there is a lesion is dependent in each case on the medical evidence. The reasons contain a comprehensive analysis of the medical and clinical evidence before and after the 2015 injury. At [114] of his reasons the Member concluded:

"Weighing the totality of the evidence and in particular the statement evidence of the applicant, contextualised by the contemporaneous records of Astley Medical Centre and the expert opinion of Dr Smith, I am not satisfied the [appellant] has discharged his onus of proof of establishing that the 15 July 2015 injury materially contributed to the need for surgery." (my emphasis)

1. It has not been established that the Member misunderstood or misdirected himself in respect of the contemporaneous medical evidence concerning the appellant's back or leg pain after the injury in July of 2015.

1. Critically, the Member found that he was unable to "place any significant weight"[69] on the specialist medical evidence adduced by the appellant in determining whether there was a causal nexus between the 2015 injury and the need for surgery. He concluded his analysis of their medical reports by stating:

"having not recorded any history of the 2015 incident involving the boulder, they are not in a position to express an opinion as to the precise nature of that particular aggravation and whether [that] incident made a material contribution to the need for the proposed surgery."[70]

1. The Member's analysis is borne out by a review of the relevant reports. There is no reference to the 2015 injury in the report of Dr Chien. He concludes that the causes of appellant's condition were twofold. First, the progression of his condition since the 2006 surgery. Secondly, the aggravation of this condition by "his return to heavy work."
2. Dr Singh does record that, on the appellant's return to work in 2006, he had to perform heavy lifting and pushing and "[h]e references a few work-related incidents when he had to do more than light duty for several years"[71] (my italics). It is evident, however, as the Member found that the doctor's history is inexact. He does not record a description of the impugned injury, the symptoms it caused, or its impact on the appellant's capacity to work. It cannot be safely ascertained from his reports what Dr Singh thought of the connection between the 2015 injury and the need for surgery.
3. By his report of 17 April 2022, in response to the opinion of Dr Smith, Dr Singh refers to an injury in 2018. It is possible that this is a reference to the injury in 2015. However, the doctor also states that the appellant was "asymptomatic prior to the exacerbations in the workplace." It is unlikely, therefore, that he is referring to the 2015 injury as the appellant was plainly symptomatic prior to the 2015 injury.
4. Thus, the Member found that the appellant's medical evidence did not address, and could not establish, a causal nexus between the injury of 15 July 2015 and the need for surgery. It is true that in some circumstances it may be possible to infer causation in the absence of medical evidence.[72] But that approach is not available to a tribunal when there are competing causes of a condition and, more importantly, competing medical evidence.[73] It is necessary to resolve the difference of opinion between experts rationally by examination and analysis of their evidence. The Member undertook that task. He did not misunderstand the evidence of Dr Singh or Dr Chien. He gave compelling reasons for his conclusions not to accept the evidence of either doctor on the causation issue. Given the failure of Dr Singh and Dr Chien to address the issue, the opinion of Dr Smith prevailed by default. The argument that the Member did not provide an adequate explanation for not accepting their evidence is without merit.

Failure to compare the event of July 2015 with other incidents referred to in the evidence

1. I have dealt with the appellant's assertion that the evidence demonstrated significant escalation of his back and leg symptoms following the July 2015 injury above. He also asserts that the Member failed to "compare" the forces involved in the various incidents. He argues that the injury of 15 July 2015 was more likely to cause damage to the lumbar spine than the other injuries disclosed by the evidence. Repetitively lifting 60 kg slats to apply them to a wall is said to be "relatively minor". Presumably, the same submission would be made of the lifting boxes/cartons weighing 50 kg, or a truck tyre weighing 40 kg.
2. I doubt that it is permissible to draw such an inference in this case. While the weight involved in a particular effort might be relevant in ascertaining the nature and extent of an injury, other factors may be more important. The symptoms caused by the exertion is one obvious example. The relevance and importance of these matters is primarily within the province of the medical experts. The medical evidence accepted by the Member hypothesised that the injury involved a temporary aggravation of the appellant's pre-existing condition which would have subsided within "three months at the most".[74] Underlying the Member's acceptance of this evidence, and the appellant's lack of success in the case, is his failure to adduce medical evidence which assumed a history "sufficiently like" the facts established to render it of value.[75] As the appellant had the onus of proof, the absence of medical opinion on the issue of causal nexus between injury and proposed surgery, founded on the proven facts, made the outcome inevitable.
3. The argument concerning the exertion involved in the incident of 15 July 2015, in keeping with the general tenor of the appeal, merely restates an argument put at the arbitration hearing. The Member considered the entirety of the evidence in his reasons. In accordance with the principles in Raulston his findings were undoubtedly open to him. It has not been established that the Member erred in finding that the appellant had not established that the need for surgery proposed by Dr Singh resulted from the injury of 15 July 2015.

1. The Certificate of Determination dated 22 April 2024 is confirmed.

[1] Application to Resolve a Dispute (ARD), p 11.

[2] History recorded by Dr Smith on 10 May 2023 at Reply to Application to Resolve a Dispute (Reply), p 32.

[3] Report of Dr Seex 23 March 2007, ARD, p 144.

[4] Report of Dr Seex 24 May 2007, ARD, p 142.

[5] Report of Dr Seex 23 July 2013, ARD, p 140.

[8] Transcript of arbitration hearing 2 April 2024 (T), T 1.32-38.

[9] See Rail Services Australia v Dimovski [2004] NSWCA 267, [68], per Hodgson JA.

[13] [2014] NSWWCCPD 72, [88].

[14] (1994) 35 NSWLR 452 (Kooragang).

[15] [2016] HCA 43 (Martin).

[19] Appellant's submissions (AS), [10]-[14].

[24] Respondents amended submissions, p 1.

[57] See the email from icare dated 27 April 2020 at ARD, p 205.

[62] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy), [57]-[58] and the cases referred to therein.

[64] [2011] NSWWCCPD 25 (Raulston).

[65] [2013] NSWCA 255, [72].

[66] [2020] NSWCA 54.

[72] Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190, 197 per Glass JA.

[73] Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174, [64] per Ipp JA, Bryson JA and Stein AJA agreeing.

[74] Dr Smith's report dated 22 May 2023, Reply, p 34.

[75] Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505, 509-510.