1. Dr Powell provides three reports for the respondent. The first of these reports is dated 14 October 2021, and goes over the history of injury and consequences up until that point. Dr Powell agrees that at that point the treatment had been appropriate but had not resulted in symptomatic or functional improvement. Dr Powell recommended continuation of conservation management, or "to consider surgery as proposed by Dr Rao in the form of a lumbar decompression". Obviously based on the history above, this occurred.
2. Dr Powell provides a further report dated 6 May 2022, following the surgery. Dr Powell records burning pain on the right side of the lower back extending into the buttock and into the posterior aspect of the right leg to the knee. Dr Powell indicates that the fusion surgery is connected to Mr Palmer's workplace injury:

"Fusion surgery is indicated in the presence of progressive neurology and/or significant instability, and these were not a feature of Mr Palmer's condition prior to the workplace incident."

3. Dr Powell comments that the surgery is a "major undertaking", and the "definitive indications for this surgery would be progressive neurological involvement, marked instability or failure of previous fusion". Dr Powell also points to contraindicators to surgery, being mental health issues and chronic smoking, commenting that the results in a compensable patient "are no better than those obtained from a balanced active rehabilitation programmed though carry significantly higher risk". He states that the surgery is an option, but not his preferred option and would not be considered reasonably necessary. He goes on to state that "failed conservative management itself does not represent indication for surgery".
4. In a further report dated 27 June 2022, Dr Powell agrees that the proposed surgery represents an appropriate option under certain circumstances, but these is not one of those circumstances.

1. Dr Moloney provides a report dated 19 January 2023. This report was originally prepared for the applicant through his solicitors but is relied upon by the respondent in these proceedings. Dr Moloney takes a history of injury and complications consistent with what is recorded elsewhere. Dr Moloney considers the opinion of Dr Powell and provides the following commentary:

"One could make the case to state that Dr Powell is restrictive in his indications for a spinal fusion. He states that he would require to exhibit ongoing neurological deficit and spinal instability. > > The fact that Mr Palmer has ongoing pain would represent ongoing neurological compromise and the fact that he has ongoing low back pain and has had a partial discectomy together with the finding on his up to date MRI scan loss of signal intensity in the T2 weighted image and a decrease in disc height at L5/S1 would indicate to most that he has a spinal instability at L5/S1. The points that he makes about smoking giving a decreased chance of fusion being successful and the fact that Mr Powell has an ongoing psychological problem do need to be considered. Further as indicated later in this report there are alternatives."

2. Dr Moloney discusses Mr Palmer's treatment with cannabidiol. He comments on the spinal fusion:

"Under these circumstances, it would be advisable for him to embark upon some physical therapy to strengthen his lumbar spine and this, I believe, would indicate that surgical intervention in the form of a spinal fusion is not indicated at this time. There are viable alternatives for him."

3. Dr Moloney records that Mr Palmer has low back pain and "psychiatric manifestations caused by complications following the surgical intervention". He goes on to comment that the impairment is low back pain, but that he has not had any physical therapy and if that occurred, his low back issue will resolve to more satisfactory levels.

1. Dr Muratore provides a report dated 26 March 2024. It deals more with cannabis/cannabidiol as a form of treatment rather than the proposed surgery. It was referred to by the respondent only for the history taken of smoking 10-15 cigarettes per day.

1. The parties provided oral submissions at the hearing. As they were recorded, I do not intend to repeat them in great detail.

1. The applicant commenced submissions by noting that a large number of matters are not in dispute. There is no dispute relating to injury, and the applicant had previously had surgery paid for by the respondent. It was acknowledged that surgery had not had a good result. The applicant had had significant and varied conservative treatment thereafter, none of which had been successful.
2. The applicant refers to Dr Powell's first report, noting that he does not comment on the radiology. In spite of the findings he diagnoses a musculoligamentous injury. He completely minimises the pathology in the radiology, but still supports the initial surgery. In respect of Dr Powell's second report, the applicant is again critical of Dr Powell's disregard of the radiology. The applicant submits that the MRI shows neurological involvement, and the pathology supports justification for surgery. Dr Powell's conclusion seems to be contrary to the findings on MRI, findings of radiating pain, and minimises the condition to aggravation of degenerative changes. Ultimately Dr Powell is asking the applicant to try things that have not worked and ignore the possibility of surgery when it's indicated by pathology.
3. The applicant submits that the previous surgery did not resolve the symptomology, and physio made things worse. Dr Rao has tried conservative treatment, and has had multidisciplinary pain management. The applicant has also tried CBD Oil as an alternative treatment form.
4. The applicant submits that Dr Moloney's report supports ongoing spinal instability at L5/S1 and provides support in respect of imaging to justify the surgery. He doesn't provide a diagnosis but if you extrapolate the findings, ultimately Dr Moloney supports the pathology and the need for surgery. To the extent that Dr Moloney suggests that Mr Palmer tries physiotherapy, this has been done.
5. In respect of Dr Bodel, the applicant notes that the CDB and THC, being alternative treatments only helped minimally. The symptoms on examination were consistent with MRI and pathology findings. All surgery has an element of uncertainty, but this surgery is supported by Dr Bodel.
6. The applicant submits that the worker had an undisputed injury with initially unsuccessful surgery, he has continuing pain and radiculopathy, his clinical presentation and complaints are supported by radiology, and none of the conservative treatment has helped. On that basis, I would prefer the opinion of his treating specialists.

1. The respondent points to Dr Powell saying that the surgery is a "major undertaking", and there is no dispute about that. There is no suggestion that this is anything other than a major operation.
2. The respondent referred to Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) and Rose v Health Commission (NSW) [1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose), noting the matters said to be relevant there. The respondent submits that the second last of the matters in Diab is where the applicant has failed to provide persuasive evidence.
3. The respondent referred to the opinion of Dr Moloney, who is not quite as restrictive as Dr Powell. But where his opinion doesn't differ from Dr Powell's is the consideration of other material. Dr Moloney suggests that the smoking and psychological problems need to be considered - they are contraindicators that the surgery is reasonably necessary. Dr Moloney suggests that after the treatment the applicant is likely to be worse.
4. The respondent submits that the material available doesn't go to alternative treatment. The contraindication of smoking persists, and Dr Rao hasn't dealt with this sufficiently. The applicant has the onus of satisfying me in circumstances where the adverse potential has been identified by two specialists, and hasn't been addressed by Dr Rao.
5. The respondent refers to Dr Bodel's opinion, who addresses the psychological condition. The respondent questions whether the opinion which is expressed as "reasonable and necessary" has ticked the box. Dr Bodel says fusion is to be considered, but that doesn't carry a lot of weight. It is submitted that Dr Bodel's opinion is that it is no unreasonable to consider it, but that the outcome is uncertain, which must be compared with the statutory test of "reasonably necessary", whereas Dr Bodel has provided an opinion of "reasonable and necessary".
6. On that basis, the respondent submits that I would not be satisfied that the applicant even gets close. The psychological issues are identified as contraindicating the surgery. In respect of alternatives, even if they have been tried and were not successful, that doesn't mean that the surgery is currently a good idea, particularly where there is the psychological condition. Until the psychological injury is better treated then the surgery should not be regarded as reasonable.

1. The applicant refers to the statement which deals with the other treatment options, including narcotics which made him addicted and physiotherapy which made things worse. The respondent failed to address Dr Powell's inadequacies, and on that basis I could not possibly accept Dr Powell's opinion. There are risks and uncertainties with every possible surgery. The applicant has been treated by a psychiatrist and referred to a psychologist. Treatment for his psychological issues has been attempted and has failed.

1. The issue in dispute in this case is singular, although not necessarily without some complexity. Mr Palmer claims the cost of fusion surgery. The respondent says that surgery is not reasonably necessary. There is no causation dispute raised in the current matter (i.e. the "results from" question asked in s 60 is not in issue here).
2. The parties agree that Diab, and Rose as discussed in Diab, represent the relevant authority for consideration of the issue (of course always with reference to the terms of the statute itself). As DP Roche states, the matters are "useful heads for consideration" but the "essential question remains whether the treatment was reasonably necessary" (Diab at [89]). The relevant criteria for reasonableness are set out in [88] of Diab:

"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."

3. The respondent's submissions largely addressed point (d) above, or the second last point as they submitted. Other aspects are relevant for discussion and will be considered below.

1. There is a general agreement that fusion surgery, in some circumstances, is appropriate treatment. Dr Bodel indicates that the surgery "is to be considered". In his report dated 6 May 2022, Dr Powell provides some support for the appropriateness of the surgery, although suggests it is not reasonably necessary on other bases. He states:

"Fusion surgery is indicated in the presence of progressive neurology and/or significant instability, and these were not a feature of Mr Palmer's condition prior to the workplace incident."

2. This is in response to a question about whether or not the surgery "would have been required at some stage in his life regardless of the workplace incident". I would interpret Dr Powell's comment as supporting that the surgery is appropriate in the presence of "progressive neurology and/or significant instability". Dr Powell goes on to suggest that the examination did not demonstrate evidence of neurological compromise or "significant" segmental instability, although it is noted, as submitted by the applicant, that Dr Powell seems to ignore the radiology showing a recurrent disc protrusion with impingement.
3. Dr Powell, in his report of 27 June 2022, supports that the treatment is an appropriate option "under certain circumstances" and there may be "absolute indications and contraindications", but this "is not one of those". In other words, the decision on whether the surgery is reasonably necessary involves weighing a variety of factors and there is no clear answer in this case. He does maintain his view that it is not the preferred option.
4. Dr Moloney disagrees with Dr Powell's opinion, particularly in respect of the neurological compromise, suggesting that the pain and radiological findings "would indicate to most that he has a spinal instability at L5/S1". Dr Moloney suggests that there are some contraindications including smoking and psychological problems, as well as alternative options.
5. Dr Rao, treating surgeon, supports that the surgery is appropriate. He considers Mr Palmer's previous surgical history (which he was involved with) and the poor outcome of that. He states:

"Mr Palmer underwent L5/S1 discectomy for his accepted work related issue. This was complicated by CSF leak from which recovered well after further surgery. Unfortunately he has had a recurrence of the disc prolapse and is very symptomatic and disabled from it. Repeat surgery through the same incision is fraught with significant complications including nerve root injury , csf leak and infection. Hence a fusion surgery is advised. This also eliminates the risk of recurrent disc at this level."

6. I accept the opinion of Dr Moloney, which is consistent with Dr Rao's that Mr Palmer has a neurological involvement, and/or instability in his spine. Dr Rao indicates that there has been a recurrence of the disc prolapse and Dr Moloney agrees suggests that there is spinal instability at the appropriate level. Dr Rao, in his report dated 16 May 2022, also comments that fusion surgery is not only indicated for instability, but for recurrent disc prolapse.
7. Dr Powell's opinion in this regard appears to be an outlier and based solely on his examination on the day, without due consideration of the course of Mr Palmer's symptoms and the outcome from previous surgery, as well as the provided radiological evidence.
8. In those circumstances, I am satisfied that the proposed surgery is appropriate.

The availability of alternative treatment, and its appropriateness

1. This is the second matter for consideration in Diab. Dr Powell suggests, in a roundabout way, "continued conservative management and a balanced rehabilitation programme". He also suggests the involvement of a pain specialist, but does not recommend a Ketamine fusion. Dr Moloney suggests "hydrotherapy, physiotherapy and exercise physiology with a view to improving mobility and core strength". Dr Muratore, although commenting on cannabidiol treatment, suggests that a therapy dog and an exercise program should be provided as part of a pain management program.
2. Dr Bodel suggests that an exercise based program to strengthen the back would be appropriate, although does suggest this is alternative treatment, but rather rehabilitation.
3. Dr Rao comments particularly on the opinion of Dr Powell that active rehabilitation be provided. He states: "Active rehabilitation is possible when able to participate. His physiotherapist is unable to participate. He has had multidisciplinary pain doctor to waste".
4. Mr Palmer specifically comments on the physiotherapy in his statement:

"I also note that I did attend Physiotherapy sessions once a week, but I felt like this only made things worse. I found simple actions hard to perform and I was not able to see any improvements in relation to my injuries."

5. There is supporting evidence for Mr Palmer's attendance at a physiotherapist. On 17 January 2023, Dr Bosnjak, Mr Palmer's treating general practitioner, provides a referral for allied health services under medicare for five sessions of physiotherapy. There are other such requests recommending regular physiotherapy.
6. Mr Palmer has also attended a pain specialist. Dr Deshpande provides a report dated 16 January 2022, which was an attendance via telephone. This was after the recommended surgery. Recommendations were made concerning pain medications. He also was approved for attendance at REGAIN - intensive multidisciplinary pain management group program on 7 February 2024.
7. I am satisfied that there are alternative treatments available, being strengthening-type programmes through physical activity (either physiotherapy, hydrotherapy, exercise physiology or a home-based programme, or a combination of all of the above). A pain specialist programme also exists as an alternative. However, Diab, interpreting Rose suggests that when considering the availability of alternative treatments, their potential effectiveness must also be considered.
8. I am satisfied that Mr Palmer has tried these alternative treatments with little success. Physiotherapy exacerbated his pain. A pain specialist programme was apparently trialled, although I have no information about its outcome. It is reasonably inferable that if it were successful, or at least mildly successful, Mr Palmer would not be pursuing the surgery today.
9. Given Mr Palmer's poor response to physiotherapy and his ongoing issues, I am satisfied that this factor weighs in favour of Mr Palmer. Alternative treatments do not represent the best course in this case.

1. No submissions were addressed to this ground and there does not appear to be any medical dispute about the cost of the treatment. It is true that alternative treatments may be cheaper, but I have addressed that issue above.

The actual or potential effectiveness of the treatment

1. Much of the dispute in this case, and the submissions at the hearing, concerned this matter.
2. Dr Powell describes, and the respondent submits, that the surgery proposed is a "major undertaking". This appears to be the consistent opinion in relation to the type of surgery contemplated. Dr Powell's major point concerning this matter is twofold - the contraindications, being chronic smoking, pain syndrome and mental health issues, and the likely effectiveness, compared with other treatment options. He opines that in a compensable patient (i.e. a patient claiming workers compensation) the results "are no better than those obtained from a balanced active rehabilitation programme, though carry significantly higher risk".
3. Dr Moloney likewise expresses concern about "smoking giving a decreased chance of fusion being successful".
4. Dr Bodel does not provide significant support in respect of this matter, really placing it back on Mr Palmer as to whether he wishes to proceed. He describes the outcome as "uncertain" and that there is "no guarantee that it will help".
5. Dr Rao does not specifically address this contraindication (as the respondent describes it). He discusses the risks with repeat surgery through the same incision, in support of his proposed approach and suggestion of fusion surgery.
6. This is certainly a factor that must be weighed as part of my consideration. The applicant, in response to the tenor of this submission, submits that there are risks and uncertainties with every possible surgery. I accept that that is the case. Those risks must be weighed against the potential effectiveness of the treatment.
7. I accept that Mr Palmer's ongoing smoking is an apparent and clear contraindication against surgery. This, however, is not an absolute contraindicator. It is one risk factor that Mr Palmer's surgical team will have to take into account. It may necessitate Mr Palmer ceasing smoking prior to the surgery.
8. I do not give great weight to the other contraindicator expressed by Dr Powell, including Mr Palmer's apparent pain syndrome and the fact that he is a compensable patient. The reason for surgery is an attempt to address the former, or at least reduce the effects of pain on Mr Palmer. The latter cannot be greatly relevant in circumstances where every dispute about surgery involves a compensable patient. This issue is also given a very broad brush and not specifically address to Mr Palmer's situation. There is no commentary on how Mr Palmer being a recipient of workers compensation is relevant, as opposed to workers compensation recipients in a general sense.
9. The other major submission raised by the respondent, and an apparent contraindication, is Mr Palmer's ongoing mental health issues. There is substantial evidence of this throughout the material before me. Mr Palmer has been, at times, suicidal. He has presented to hospital for mental health related issues.
10. Dr Powell raises this complexity and Dr Moloney suggest that it needs "to be considered". The respondent's ultimate submission on this point was that until the psychological injury is better treated then the surgery should not be regarded as reasonably necessary.
11. I do not accept the respondent's submissions on this point as being a reasonable contraindicator to surgery. Mr Palmer has had psychological treatment. His ongoing issues suggest that it has not been particularly effective but it has been tried, and appears to be continuing.
12. Mr Palmer was referred to Dr Shen by his general practitioner. He provides a report dated 7 April 2022. This was after the recommendation of spinal fusion. There are a number of mental health treatment plans scattered throughout the evidence before me. Mr Palmer's statement acknowledges his mental health issues.
13. Dr Rao specifically addresses the mental health issues plaguing Mr Palmer. In a report dated 22 November 2022, when commenting on the declinature of treatment, he states:

"This has put Mr Palmer back mentally as well as financially and he continues to struggle. Sadly he reports mental and family breakdowns, resulting in admission to a rehabilitation hospital for psychiatric treatment. These could have been avoided had Mr Palmer been granted approval for treatment. I have reassured him in terms of any medical help required, we will do our utmost to help. We discussed management for stress and ongoing psychological and psychiatric supports. He is happy to discuss with us if we can be of any support."

14. Whilst Dr Rao does not specifically state that Mr Palmer's mental health issues are not a contraindicator for surgery, he is clearly aware of those issues and has considered them in making his recommendation.
15. Undoubtedly an element of Mr Palmer's mental health issues is his ongoing pain. The surgery proposes to address this issue. There is a reasonable prospect that the surgery will improve Mr Palmer's mental health condition. I do not accept the respondent's submission that the psychological issues need to be better treated before surgery be regarded as reasonable. There is no evidence before me that the mental health consequences of Mr Palmer's ongoing pain can be disentangled and properly treated on their own.
16. DP Roche commented specifically on this ground in Diab:

"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."

17. Whilst there are risks associated with surgery, those risks do not necessarily mean that the treatment is not reasonably necessary.
18. I am satisfied, as a whole, that the surgery has good prospects of being effective.

1. I believe I have largely dealt with this matter in my discussion of the other matters, and the medical opinions provided in respect of those matters, above. There is broad support for fusion being appropriate in certain circumstances, including the kind of position Mr Palmer finds himself in. I have discussed why Dr Powell's rejection of the indicators for fusion, including the neurological involvement or instability, is not to be preferred. Dr Rao has appropriately addressed this issue and identified the recurrent disc prolapse as a reasonable basis for the surgery.
2. I am satisfied that when one considers Mr Palmer's presentation properly, then Dr Powell's opinion about the indicators for surgery cannot be preferred to those of Dr Moloney, Dr Rao, and Dr Bodel (acknowledging that Dr Bodel's opinion is not particularly strongly presented).

1. Having considered the material before me, including the applicant's statement, the competing medicolegal opinions and the treating material throughout the evidence, I am satisfied that the proposed surgery is reasonably necessary. Accordingly, I will make an award that the respondent pay for that treatment.