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).

Compensation for domestic assistance is provided for by section 60AA."

1. For the respondent to be liable for the proposed surgery s 60(1) of the 1987 Act requires that the surgery is reasonably necessary "as a result of an injury".
2. It is not disputed that the applicant sustained injury to his lumbar spine on 19 January 2022 whilst lifting a reject chute in the course of his employment with the respondent.
3. The applicant bears the onus of establishing that the injury materially contributes to the need for the surgery.[1] The fact that pre-existing conditions may be factors in the need for treatment does not mean that the proposed treatment is not a result of the injury as Roche DP in Murphy observed:

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

[58] 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. There is no dispute that the applicant has a prior history of problems with his lower back.
2. It is the applicant's evidence in his statement made 11 November 2025 that on or around

25 February 2019 he was working for a previous employer on a cherry picker platform dismantling a ventilation duct which weighed approximately 30-40kg when he grabbed the duct to stop it falling suffering a sprain of his back muscles. 3. It is the applicant's evidence that he thinks that he was off work for about two weeks but cannot recall the exact duration of his recovery. That he was off work for about two weeks is supported by a list of workers compensation payments which records that the applicant was paid weekly compensation from 25 February 2019 to 3 March 2019. 4. The injury appears to have waxed and waned with the applicant being initially certified fit for pre-injury duties on 20 March 2019[2] before again being certified with restrictions in June 2019 and finally being certified fit for pre-injury duties on 23 September 2019.[3] 5. The injury appears to have been relatively minor with the applicant only being off work for approximately two weeks. Whilst he was on restricted duties for a number of months, those restrictions were not severe as he was still certified fit to work eight hours per day five days per week with a lifting/carrying/pushing/pulling capacity of up to 20kg. 6. On 5 June 2019 an email was sent by the return to work coordinator to Employers Mutual Limited advising that the applicant had a fall at home and had broken his shoulder.[4] The fall may in fact relate to have a motorcycle accident, it being the applicant's evidence that he broke his collarbone in a motorcycle accident in June 2019. There is no mention in the email or in the applicant's statement evidence that he sustained injury to his lower back in the accident. The applicant was however certified shortly after the accident as fit for restricted duties eight hours per day five days per week with a lifting/carrying/pushing/pulling capacity of up to 20kg due to the injury on or around 25 February 2019. 7. Ms Compton submitted that the failure of the applicant to record the history of the injury at work on or around 25 February 2019 in his statement of 23 December 2024 raises issues in respect to the applicant's credit and as to the condition of the applicant's back prior to the subject work injury on 19 January 2022. I do not accept the respondent's submission. 8. The applicant in his statement made 11 November 2025 states that he has a number of conditions that can affect his memory and that he simply forgot. I accept the applicant's evidence that he simply forgot. There is no indication that the applicant has attempted to hide this earlier back injuries. He has been open about reporting the history of a more recent non work injury when lifting a tent. 9. Whilst the applicant does not mention the 2019 work injury in his statement made

23 December 2024, he did report it to the respondent's injury management consultant (IMC), Dr Con Kafataris, who refers to it in his report to the respondent of 18 September 2022.

Dr Kafataris took a history of two previous episodes of lower back pain one of which was work related approximately six years prior and the other non-compensable about four years prior. 10. It is the applicant's evidence in his statement of 23 December 2024 at [3] that he had a previous back injury in October 2020 when he lifted a tent whilst camping. It is the applicant's evidence that the injury settled with a week off work and a couple of weeks of light duties following which he returned to his normal duties. Whilst the injury settled it is the applicant's evidence that he did have a degree of ongoing "mild pain with occasional flares" for which he would consult his doctor or a physiotherapist intermittently with the odd day off. It is the applicant's evidence that he was able to keep working and did not have marked lumbar back pain nor leg pain. 11. An MRI scan of the applicant's lumbar spine was reported on by Dr Jan Masesa on

3 December 2020.[5] Dr Masesa relevantly observed at the L4/5 level degenerative disc desiccation, posterior disc bulging and posterior and central disc protrusion resulting in ventral thecal sac indentation. At the L5/S1 level the doctor observed degenerative disc desiccation, generalised posterior disc bulging and left paracentral annular fissure resulting in ventral thecal sac indentation. No foraminal stenosis was observed at either level. 12. There are thus degenerative changes confirmed by radiology at the L4/5 and L5/S1 levels of the lumbar spine prior to the subject work injury. 13. In the respondent's submission there is a lack of evidence as to the applicant's back condition prior to the subject injury on 19 January 2022. I accept that there are virtually no treating clinical records in evidence prior to injury being sustained on 19 January 2022. However, there is no dispute on the evidence that the applicant's duties with the respondent as a die setter were physically heavy in nature and that he was able to perform those duties. I accept the applicant's evidence that following the injury in October 2020 lifting a tent he did have a degree of ongoing "mild pain with occasional flares" for which he would consult his doctor or a physiotherapist intermittently with the odd day off, but he was able to keep working and did not have marked lumbar back pain nor leg pain. 14. It is the applicant's evidence that with the lifting incident on 19 January 2022 he felt an onset of lower back pain, he consulted his doctor and physiotherapist and returned to work on restricted duties. It is the applicant's evidence that he was able to progressively increase the weights which he was able to lift until around November 2022 when he was lifting up to 20 kg. 15. On 4 November 2022 the applicant suffered a significant increase in his lumbar back pain whilst in the course of his employment with the respondent. 16. The applicant was referred by his general practitioner (GP), Dr Raymond Yean, to

Dr Darwish following the injury on 19 January 2022 with Dr Darwish initially reporting on the applicant on 4 April 2022. The applicant was regularly reviewed by Dr Darwish with

Dr Darwish providing reports at regular intervals to Dr Yean. 17. On 7 April 2022 Dr Andrew Leicester, orthopaedic surgeon, provided a forensic medical report to the respondent dated 7 April 2022.[6] In the doctor's opinion the applicant had suffered an ongoing aggravation of his pre-existing disc degeneration which was present in 2020. Dr Leicester was aware of the previous back injury picking up a tent in 2020. In the opinion of Dr Leicester, the incident at work on 19 January 2022 was a substantial contributing factor to the applicant's presentation. 18. On 9 May 2022 Dr Darwish reported to Dr Yean[7] that there had been significant improvement in the back pain observing that the applicant was back at work full-time with a 15kg lifting restriction. 19. On 9 June 2022 Dr Darwish reported to Dr Yean[8] that it was his understanding that the week prior the applicant had an aggravation of his back pain which lasted for two days. 20. On 12 December 2022 Dr Darwish reported to Dr Yean[9] that he understood that the applicant had on 4 November 2022 injured his back. On examination the applicant had complained of lower back pain radiating to the right buttock. This is the first reference that

Dr Darwish records in respect to radiating pain. Dr Darwish referred the applicant for an MRI scan of the lumbar spine. 21. It is the applicant's evidence that following the aggravation on 4 November 2022 he had a week off work before returning with a lifting restriction of up to 5 kg. It is the applicant's evidence that on returning to work in early February 2023 following the Christmas break he spent his time sitting, assembling caps and putting them on bottles. That with the constant sitting he developed progressively increasing pain to the point that by 8 February 2023 he had been placed off work having returned to work. He has not returned to work. 22. On 7 February 2023 Dr Darwish reported to Dr Yean[10] that the MRI scan of the lumbar spine showed no nerve root compression and the doctor advised the applicant in respect to the treatment of discogenic back pain. Dr Darwish had reported a diagnosis of L4/5 and L5/S1 discogenic pain back pain to the respondent on 14 November 2022[11] prior to becoming aware of the aggravation on 4 November 2022. 23. Dr Leicester provided his second forensic report to the respondent on 20 March 2023[12] at which time the doctor reported that the applicant had reported that his back pain had not changed since the doctor's previous examination. The doctor did however note that the applicant had a second injury on 4 November 2022 which had aggravated his pain. 24. The applicant reported to Dr Leicester that he had aggravated his injury putting a mould on a rack to put it away. The trolley on which the mould had been placed was not quite high enough and the applicant had to lift the 20kg mould approximately 100mm. He also had to push the mould in. The applicant had also, consistent with his statement evidence, reported to Dr Leicester that on returning to work he was given a sitting role doing assembly work, but the sitting seemed to aggravate his back pain and he had ceased work on 8 February 2023. 25. The doctor reported that the applicant had pain in the back of his right leg to the knee associated with numbness and paraesthesia in the groin and thigh. 26. Dr Leicester like Dr Darwish diagnosed discogenic back pain. 27. Dr Leicester was of the opinion that the applicant's employment was the substantial contributing factor to his current status, although his obesity is also a contributing factor to his premature disc degeneration. In the opinion of Dr Leicester, the effects of the applicant's work injury had not resolved. He had suffered a recent injury in November from which he was still recovering. 28. On 31 July 2023 Dr Leicester provided to the respondent a supplementary report[13] in which he states that in his opinion it is likely that the applicant had pre-existing degenerative disc disease. We know that this was in fact the case from the MRI scan of 3 December 2020, a scan which Dr Leicester had referred to in his earlier report of 7 April 2022. Whilst

Dr Leicester reported that a central disc protrusion may have been as a result of his work injury this is incorrect as the protrusion was observed on the 2020 MRI scan prior to the subject work injury. 29. Significantly Dr Leicester concluded on the balance of probabilities that the work injury either caused the central disc protrusion at L4/5 or aggravated underlying disc degenerative disease with the aggravation being ongoing. 30. In the opinion of Dr Leicester, the injury in November 2022 was likely to have aggravated the original work injury and the pre-existing disc disease. The doctor observed that on neither occasion had there been any suggestion of neurological compromise which would require surgery. Dr Lecester stated that it "could be said that the second injury was an aggravation of his original injury, which was an aggravation of some underlying degenerative disc disease." The doctor estimated that 80% of the applicant's condition is related to his work injury/injuries and 20% due to his pre-existing disc degeneration. 31. On 23 October 2023 Dr Michael Davies, pain specialist, reported to Dr Yean[14] that the applicant had no relief from his back and leg pain following diagnostic facet block procedure. This indicated to Dr Davies that the facet joints are not a contributing factor to his pain but rather it was more likely that his pain is arising from the lumbar discs. 32. The nerve blocks appear to confirm the diagnosis of discogenic back pain made by

Dr Leicester and Dr Darwish. 33. The applicant's condition continued to deteriorate with more frequent exacerbations prior to Dr Darwish recommending the proposed surgery on 11 March 2024. Dr Yean on 31 October 2023 noted that the applicant's back pain and work capacity had recently worsened. The applicant was unable to walk without a walking stick. He had severe pain day and night and was unable to walk without pain.[15] Also on 7 February 2024 Dr Yean noted that the applicant had injured himself brushing his teeth on 31 January 2024 leaning over a sink when he felt intense sharp radiating pain down both legs.[16] On 13 February 2024 Dr Darwish reported to Dr Yean[17] that the applicant had an aggravation of his back pain the week prior. 34. On 11 March 2024 Dr Darwish recommended the proposed surgery and requested approval. 35. On 6 April 2024 Dr Darwish reported to Icare[18] a diagnosis of L4/5 and L5/S1 discogenic back pain which had failed to respond to all forms of conservative treatment. Dr Darwish reported that the applicant had no back pain prior to the subject work injury on 19 January 2022 a history which Mr Carney correctly concedes is incorrect. In the opinion of Dr Darwish, the workplace was the cause of the applicant's symptoms and the need for the surgery. 36. Dr Leicester again reported to the respondent on 9 April 2024[19] noting that the applicant reported pain in his lower back and both legs which was gradually getting worse and more frequent as well as numbness in his groins but not in the legs. 37. Dr Leicester observed that the applicant had a number of back injuries at work which were likely to have aggravated and exacerbated his degenerative disc disease. In the opinion of

Dr Leicester, the applicant's symptoms were ongoing, and the aggravation did not appear to have ceased. The doctor observed that the applicant's pain appeared to have commenced with his work-related injuries. 38. In the opinion of Dr Leicester, the proposed L4/L5 and L5/S1 laminectomy, discectomy and fusion is not reasonably necessary for the work-related condition. In the doctor's opinion recent MRI findings did not support surgical intervention. The doctor observed that the main indication for spinal fusion surgery would be spinal instability, which was not the case for the applicant. The doctor also observed that decompression would be indicated if there was evidence of neurological compromise, which in the opinion of Dr Leicester was also not the case for the applicant. 39. Dr Andrew Porteous, occupational physician, provided a forensic report to the applicant dated 24 July 2024.[20] Dr Porteous took a history of the prior lower back injury in October 2020 lifting a tent. The doctor also took a history of the subject work incident with an onset of significant lumbar back pain and new lower leg pain. There is however no contemporaneous record of lower leg pain and in particular no mention of leg pain in the reports of Dr Darwish until 12 December 2022. The doctor also took a history of the aggravation in November 2022 and the applicant being put off work following the seated light assembly duties. 40. Consistent with the applicant's evidence Dr Porteous reported that following the injury in 2020 camping the applicant had ongoing intermittent lumbar back pain, which was never severe and for which he did not have much time off work. 41. The doctor confirmed his previous diagnosis of aggravation or exacerbation of pre-existing degenerative change with employment being the main contributing factor. 42. In the opinion of Dr Porteous employment was the primary contributing factor to the onset of the lumbar back injury and the ongoing symptoms which had been present since then without ever ceasing or resolving. 43. The doctor observed that there was no evidence of radiculopathy on examination and that there had been no distinct evidence of specific nerve root impingement reported on the multiple scans to date. 44. In the opinion of Dr Porteous one of the treatment options for the applicant's lumbar back pain is the surgery recommended by Dr Darwish.

1. I am of the view that the surgery being proposed by Dr Darwish is "as a result of" the accepted injury on 19 January 2022.
2. Whilst there is no dispute that the applicant had prior lower back problems; following the injury on or around 25 February 2019 the applicant was only off work for a period of approximately two weeks. On returning to work, and whilst being on suitable duties his restrictions were limited in nature being able to work full-time with a lifting/carrying/pushing/pulling capacity of up to 20kg. The applicant was ultimately able to return to unrestricted duties.
3. Whilst the applicant concedes that he had some limited ongoing symptoms following the injury in October 2020 lifting the tent he was again able to return to work performing with the respondent the heavy physical duties of a die setter. The applicant was able to return to work despite the MRI scan of 3 December 2020 displaying disc bulges and degenerative changes at the L4/5 and L5/S1 levels.
4. The applicant appears to have been able to work for the respondent in an essentially unrestricted fashion until the accepted injury on 19 January 2022.
5. Following the injury on 19 January 2022 the applicant has at no stage been able to return to his unrestricted pre-injury duties and at no stage in my view has the applicant recovered from the effects of that injury. As Mr Carney observed on behalf of the applicant one difference between the applicant's prior injuries and the injury on 19 January 2022 is the amount of treatment which he has received following the accepted injury.
6. Following the injury on 19 January 2022 the applicant was able overtime to gradually increase his lifting capacity to 20kg by November 2022 when he suffered an aggravation with a significant increase in his lower back pain. Significantly both Dr Darwish and Dr Leicester both examined the applicant following the injury on 19 January 2022 and following the aggravation in November 2022.
7. Dr Leicester on 7 April 2022 diagnosed an ongoing aggravation of pre-existing disc degeneration due to the injury on 19 January 2022.
8. Whilst Dr Darwish on 12 December 2022, following the aggravation on 4 November 2022, reports for the first time that the applicant had complained of pain radiating to the right buttock, and whilst the constant sitting during suitable duties following the November aggravation increased the pain to the point that by 8 February 2023 he had been placed off work and has not returned to work since. The diagnosis remained unchanged.
9. Dr Darwish had reported a diagnosis of L4/5 and L5/S1 discogenic pain back pain to the respondent on 14 November 2022 prior to becoming aware of the aggravation on

4 November 2022. Then on 7 February 2023 Dr Darwish reported that an MRI scan of the lumbar spine showed no nerve root compression and the doctor advised the applicant in respect to treatment for discogenic back pain. 10. Dr Leicester reported to the respondent on 20 March 2023 a diagnosis of discogenic back pain after taking a detailed history of the aggravating incident on 4 November 2022, noting the aggravation caused by the seated suitable duties and the applicant's complaints of pain in the back of his right leg to the knee associated with numbness and paraesthesia in the groin and thigh. 11. Dr Leicester in his supplementary report of 31 July 2023 concluded on the balance of probabilities that the work injury either caused the central disc protrusion at L4/5 or aggravated underlying disc degenerative disease with the aggravation being ongoing. As previously noted we know from the 2020 MRI scan of the lumbar spine that the disc protrusion at L4/5 pre-dated the injury on 19 January 2022. Therefore, in the opinion of

Dr Leicester the applicant had suffered an ongoing aggravation of the underlying degenerative disc disease. This is consistent with Dr Leicester's opinion of 7 April 2022 in which Dr Leicester noted the findings of the 2020 MRI scan of the lumbar spine. 12. In the opinion of Dr Leicester, the injury in November 2022 was likely to have aggravated the original work injury and the pre-existing disc disease. The doctor observed that on neither occasion had there been any suggestion of neurological compromise which would require surgery. Dr Lecester stated that it "could be said that the second injury was an aggravation of his original injury, which was an aggravation of some underlying degenerative disc disease." The doctor estimated that 80% of the applicant's condition is related to his work injury/injuries and 20% due to his pre-existing disc degeneration. 13. In my view the opinion of Dr Leicester supports that the injury of 19 January 2022 is ongoing and remained a significant contributor to the applicant's ongoing condition. In my view the opinion of Dr Leicester is consistent with the evidence of the ongoing complaints following the injury on 19 January 2022 and the diagnosis of discogenic back pain. I accept the opinion of Dr Leicester. 14. The applicant's condition remained fragile and highly susceptible to aggravations with simple tasks such as leaning over a sink whilst brushing his teeth causing flare ups of the applicant's symptoms. 15. Whilst Dr Darwish recommended the proposed surgery and requested approval on

11 March 2024, it is on 6 April 2024 that Dr Darwish reports to Icare with a diagnosis of L4/5 and L5/S1 discogenic back pain which had failed to respond to all forms of conservative treatment. The diagnosis is consistent with the opinion of Dr Leicester. 16. Dr Darwish reported that the applicant had no back pain prior to the subject work injury on

19 January 2022 a history which Mr Carney correctly concedes is incorrect. I am of the view that nothing of significance turns on the error. As previously discussed, the applicant was able to work performing the heavy duties of a die setter prior to the injury on 19 January 2022. 17. In the opinion of Dr Darwish, the workplace is the cause of the applicant's symptoms and the need for the surgery. 18. On 9 April 2024 Dr Leicester confirmed his previous opinion that the applicant had an ongoing aggravation of degenerative disc disease as a result of work injuries. Dr Leicester however does not support the surgery as a treatment. 19. Dr Porteous like Dr Darwish and Dr Leicester diagnosed an aggravation of pre-existing degenerative changes as a result of the subject work injury which had never ceased.

Dr Porteous supports the proposed surgery. 20. In my view the medical opinions are essentially in agreement that the applicant suffers from discogenic lower back pain without radiculopathy. Whilst there is a difference of opinion among the medical experts as to whether the proposed surgery is the appropriate treatment there is in my view no dispute that the surgery is being recommended to treat the back condition which the injury on 19 January 2022 has materially contributed. 21. For the above reasons I am of the view and find that the surgery is being proposed "as a result of" the injury sustained on 19 January 2022.

1. Section 60 of the 1987 Act requires that the treatment is "reasonably necessary" as a result of an injury.
2. Burke CCJ considered the expression "reasonably necessary", then appearing in s 10 of the Workers Compensation Act 1926 (1926 Act) in some detail in Rose v Health Commission (NSW) [1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose). His Honour said at [42]:

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

1. The "reasonably necessary" test was also considered by Burke CCJ in Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; (1997) 14 NSWCCR 233 (Bartolo). In Bartolo, Burke CCJ described the test of "reasonably necessary" as follows:

"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."

"In determining whether a particular regimen is medical treatment and whether it is reasonably necessary that such be afforded to a worker and that such necessity results from injury, it appears to me some general principles can be stated:

1. Prima facie, if the treatment falls within the definition of medical treatment in section 10(2) [the 1926 Act], it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2. However, though falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the party seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. 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.
5. 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 its place in the usual medical armoury of treatments for the particular condition."
6. The legal test to be applied when determining whether proposed treatment is reasonably necessary as a result of a workplace injury as required by s 60 of the 1987 Act was considered by Roche DP in Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab) where stated at [86]:

"Reasonably necessary does not mean 'absolutely necessary' (Moorebank at [154]). If something is 'necessary', in the sense of indispensable, it will be 'reasonably necessary'. That is because reasonably necessary is a lesser requirement than '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."

1. In Diab Deputy President Roche cited the decision of Burke CCJ in Rose with approval and stated:

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

[89] 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.

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

1. For the following reasons I am of the view that the surgery proposed by Dr Darwish is not "reasonably necessary".
2. Prior to recommending the proposed surgery on 11 March 2024 Dr Darwish had from

April 2022 recommended and pursued conservative non-surgical treatments for the applicant's injury. Those treatments included physiotherapy, pain management, focused exercise, nerve blocks and weight reduction. Constant themes in Dr Darwish's treatment of the applicant were weight loss and the building of core muscle strength. 3. Prior to recommending surgery Dr Darwish repeatedly explained to the applicant that the management of discogenic pain is complex and at his age the best option was to continue with conservative treatment. 4. In the view of Dr Darwish, as the doctor advised the applicant on 12 December 2023, L4/L5 and L5/S1 laminectomy and discectomy and fusion surgery was the "last" option if he failed to respond to all forms of conservative treatment. 5. At the time that the applicant sustained injury on 19 January 2022 he weighed approximately 140kg. Following the injury the applicant's weight increased to approximately 160kg by

July 2023. 6. The applicant having initially attempted unsuccessfully to lose weight naturally underwent, with the encouragement of Dr Darwish, gastric sleeve surgery on 2 November 2023. The applicant has experienced significant weight loss following the surgery. 7. By the time Dr Darwish recommends the proposed surgery on 11 March 2024 the applicant had lost approximately 30kg weighing in the region of 130kg and was continuing to steadily lose weight. 8. Whilst Dr Darwish did not recommend surgery until 11 March 2024 the applicant had been considering surgery since at least January 2024 at which time he weighed in the region of 137kg. 9. At the time of recommending the surgery on 11 March 2024 Dr Darwish reported that he discussed with the applicant his treatment options including conservative treatment and surgery. However, because of the severity of his symptoms and the failed response to all forms of conservative treatment, the doctor recommended the L4/5 and L5/S1 laminectomy discectomy and fusion. Dr Darwish reported that he told the applicant that the operation had a 60% chance of 80% improvement in his back pain. 10. Following 11 March 2024 and the recommendation for surgery the applicant continued to lose weight and in 2025 further treatment in the form of the medication, Wegovy, was provided to assist with the weight loss. By 3 October 2025 the applicant had reduced his weight to 114kg[21] having reduced his weight from 116kg on 1 September 2025.[22] 11. Whilst Dr Darwish recommended the proposed surgery on 11 March 2024 that recommendation appears to have been short lived. On 7 May 2024 Dr Darwish reported to Dr Yean that he had advised the applicant to continue with physiotherapy and to progress to an exercise physiology gym-based program. Dr Darwish also reported that he told the applicant that as long as his symptoms were controlled with exercises and analgesics, he should "not" have surgery.[23] 12. Dr Darwish again reported on the applicant on 20 June 2024 noting that the applicant continued to complain of lower back pain and stiffness and that he had by that time lost 43 kg in weight. Despite the applicant's complaints of ongoing back pain and stiffness Dr Darwish again told the applicant that as long as his symptoms were controlled with exercise and simple analgesics, he should continue with conservative treatment. 13. The last report from Dr Darwish in evidence is dated 20 August 2024 in which the doctor observed that the applicant had lost more weight and that he had recommended that the applicant continue with his exercise program and start swimming twice a week. 14. I do not accept that applicant's submission that Dr Darwish had not withdrawn his support for the proposed surgery. 15. There is no evidence that Dr Darwish currently recommends the proposed surgery, a surgery which the doctor views as the last option, and in circumstances where the applicant has experienced and continues to experience significant weight loss (weight loss being a core treatment) since the surgical recommendation was made. 16. The applicant sought a second opinion from Dr Andrew Kanawati, orthopaedic surgeon, who on 12 July 2024 noted that the applicant had reduced his weight to about 120 kg. In the opinion of Dr Kanawati ongoing physical therapy was the "mainstay" of the applicant's treatment. The doctor recommended continuing with physiotherapy or exercise physiology. 17. Significantly Dr Kanawati did not think that the applicant would benefit from any form of surgery. The doctor gave reasons for his opinion explaining that the applicant would not benefit from a laminectomy and decompression as he does not have any neural impingement and surgery in the form of a two-level posterior lumbar interbody fusion would most likely exacerbate the lower back pain, due to erector spinae muscle dysfunction, possibly not treat his lower back pain at all and almost certainly place the applicant at risk of adjacent segment degenerative change due to his relatively young age. 18. Whilst there has been at times some discussion of nerve compression the weight of the evidence including the opinion of Dr Darwish is to the effect that there is no neural compression. 19. Dr Kanawati recommend continued weight loss advising that in his opinion surgery would only be indicated if there was continued weight loss and the applicant reached his ideal weight (which appears to be in the region of 85kg) and still had ongoing lower back pain with increased uptake at the discovertebral joints on a bone scan (on 3 September 2024 Dr Bill Mouratidis reported on a bone scan[24] observing a normal appearing lumbosacral region, pelvis and hips with no specific cause identified for the low back pain). However, even at that stage the doctor was of the opinion that a two-level fusion surgery would be a large undertaking for a 40-year-old due to the risk of adjacent segment disease. 20. On 28 October 2024 Dr Kanawati reported[25] that he maintained that there should not be any surgical intervention. The doctor confirmed his opinion that ongoing weight loss was the mainstay of treatment with ongoing physiotherapy to strengthen the applicant's core. 21. Dr Kanawati did concede that if muscle weakness as a cause of pain is ruled out with increased muscle tone and ongoing weight loss, and the applicant still had pain then surgical intervention in the form of a two-level spinal fusion may be of benefit. In my view such an opinion is consistent with Dr Darwish's opinion that surgery is the last option. 22. Dr Leicester, prior to the applicant undergoing the gastric sleeve surgery and prior to the surgical recommendation of 11 March 2024, reported to the respondent on 31 July 2023[26] that in his opinion weight loss is probably the single most important factor in relieving some of the applicant's discogenic back pain. In the doctor's opinion daily back strengthening exercises may also be worthwhile. 23. Dr Leicester in his report of 9 April 2024[27] noted that the applicant had lost 35kg and observed that the weight loss was likely to be more beneficial for the back pain than any form of surgical intervention. In the opinion of Dr Leicester, the MRI findings do not support surgical intervention. The doctor in providing reasons for his opinion observed that the main indication for spinal fusion would be spinal instability, which was not the case for the applicant, and decompression would be indicated if there was evidence of neurological compromise, but there was no such evidence. Dr Leicester did qualify his opinion by noting that he is not a spine surgeon. 24. The applicant relies on the opinion of Dr Porteous who reported on the applicant on

24 July 2024 at which time the applicant weighed 120kg. Dr Porteous also reported that there was no evidence of radiculopathy on examination and there had been no distinct evidence of specific nerve root impingement reported on the multiple scans. 25. In the opinion of Dr Porteous, the surgical treatment option recommended by Dr Darwish is reasonable and necessary. The doctor observed that the surgery offered the possible benefit of reduced back pain and increased capacity. Dr Porteous did however note that there is a risk that the condition would remain unchanged or be worsened as a result of the surgery. 26. I prefer the opinion of Dr Leicester and Dr Kanawati to that of Dr Porteous. Dr Porteous does not provide any detailed reasoning for his opinion that the surgery is reasonably necessary. 27. Dr Kanawati and Dr Leicester explain their reasons which are similar in nature and based on the diagnosed condition of discogenic back pain without neural compromise. A diagnosis accepted by Dr Porteous. 28. As previously discussed, I am of the opinion that Dr Darwish ceased to recommend surgery from 7 May 2024 and there is no evidence that Dr Darwish currently supports surgical intervention in circumstances where there has been ongoing weight reduction as well as the obtaining of the bone scan on 3 September 2024. 29. For the above reasons I am of the view that the proposed surgery is not appropriate treatment. I therefore find that the proposed surgery is not reasonably necessary.

[1] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy).