CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Reeves v Robert Bosch (Australia) Pty Ltd [2024] NSWPIC 460	
		
APPLICANT:	Terrence Edgar Reeves	
		
RESPONDENT:	Robert Bosch (Australia) Pty Ltd	
		
principal Member:	Josephine Bamber	
		
DATE OF DECISION:	21 August 2024	
		
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 60; disputed claim in relation to lumbar surgery, being L2/3 XLIF procedure, followed by extension of pedicle screws posteriorly; Murphy v Allity Management Services Pty Ltd and Diab v NRMA Ltd applied; Held – the proposed surgery is a reasonably necessary treatment as a result of the injury; respondent to pay the costs of, and incidental to, the proposed surgery.
	
determinations made:	The Commission determines:
1.	Pursuant to s 60 of the Workers Compensation Act 1987 the treatment proposed by Dr Coughlan being an “L2/3 XLIF procedure followed by extension of pedicle screws posteriorly” is reasonably necessary treatment as a result of the injury on 5 August 2011.
2.	The respondent is to pay for the costs of and incidental to the above-mentioned treatment.	

STATEMENT OF REASONS
BACKGROUND
1.	Terrence Edgar Reeves, the applicant, sustained an injury to his lumbar spine in the course of his employment with the respondent, Robert Bosch (Australia) Proprietary Limited, on 
5 August 2011. In earlier proceedings against the respondent before the Workers Compensation Commission in matter 6365/16 Mr Reeves was assessed by an Approved Medical Specialist (AMS) in his Medical Assessment Certificate (MAC) as suffering 21% whole person impairment (WPI). In accordance with this assessment a Certificate of Determination was issued ordering the respondent to pay Mr Reeves $34,650 for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987.
2.	Mr Reeves was employed by the respondent from 2008 to February 2013. On 
15 October 2013 he underwent an L5/S1 anterior spinal fusion and disc replacement at L4/5 at Prince of Wales Hospital performed by Dr Coughlan. In 2018 Dr Coughlan performed an L1 to L4 fusion with pedicle screws on the right side.
3.	In the present proceedings Mr Reeves seeks an order for the respondent to pay for the costs of an “L2/3 XLIF procedure followed by extension of pedicle screws posteriorly” as recommended by Dr Coughlan in his report dated 22 May 2023.
4.	The respondent’s workers compensation insurer, AAI limited trading as GIO, issued dispute notices under s78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 6 June 2022, 24 August 2022 and 9 August 2023. The insurer declined to pay for this surgery based on the opinion of Dr Peter Spittaler in report dated 
5 August 2022.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
5.	The matter proceeded in arbitration hearing on the MS Teams platform on 30 May 2024. 
Mr Gavin Hanrahan, solicitor, appeared on behalf of Mr Reeves, who was present. Mr Ross Hanrahan, counsel, instructed by Ms Blake appeared for the respondent. 
6.	I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied.  I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them.  I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.  
EVIDENCE
Documentary evidence
7.	The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination: 
(a)	Application to Resolve a Dispute (ARD) and attached documents;
(b)	Reply and attached documents, and
(c)	Application to Admit Late Documents dated 24 May 2024 filed by the applicant.
Oral evidence
8.	There was no oral evidence. Both parties made oral submissions which were sound recorded and a copy of the recording is available for the parties.
FINDINGS AND REASONS 
Summary of evidence
9.	The main relevant documentary evidence before the Commission is contained in the reports of Dr Coughlan, statement of Mr Reeves and the report of Dr Spittaler.
Dr Coughlan
10.	Dr Coughlan reported to Dr Ghaly on 16 May 2022 that he had reviewed a recent CT scan of Mr Reeves’ lumbar spine and the findings were in line with his symptoms. He stated at the L2/3 level Mr Reeves had a large disc herniation and osteophyte which were compressing the nerve. The doctor advised that given the prior surgery and the large size of the disc herniation  he felt Mr Reeves should undergo an L2/3 XLIF procedure followed by extension of his pedicle screws posteriorly. He sought approval from the insurer to undertake this surgery.
11.	Dr Coughlan reported on 7 October 2022 to Mr Reeves’ solicitors repeating the above information and adding that the recommended surgery would reduce the compression and provide stability at that level. He added that the proposed procedure is well documented and widely accepted to treat pathology such as Mr Reeves’ and that the radiological findings supported the need for surgery and that there are no appropriate non-surgical options to adequately treat Mr Reeves’ pathology.  Dr Coughlan had reported this opinion to the insurer in his report dated 17 June 2022.
12.	Mr Reeves had tried medicinal cannabis but it did not assist his pain. He also underwent a CT-Guided facet joint injection on 24 November 2022, which Dr Spittaler had recommended. The radiologist report says the needle was placed near the bilateral L3/4 facet joint. At [21] of his statement Mr Reeves says this procedure was unsuccessful.
13.	A request for the surgery was sent to the insurer dated 22 May 2023. At this time 
Dr Coughlan reported to Dr Ghaly that Mr Reeves had persistent lumbar back pain radiating into his left leg and the doctor advised it would be a good time to go ahead with the surgery given his instability and compression. He also advised his condition was getting progressively worse and he was optimistic the surgery would alleviate some of his pain and symptoms.
Mr Reeves’ statement 
14.	Mr Reeves in his statement dated 21 March 2024 describes his treatment including in the past having taken Oxycontin, Endone, CBD oil, CT guided facet joint injection, Effexor, Tramal, and Panadol Osteo and he has ongoing psychological counselling as he suffers from depression and suicidal thoughts. He says he has also tried physiotherapy and hydrotherapy in the past. He sets out his ongoing symptoms such as waking every two hours due to pain and limited walking and sitting ability. He can only drive for about 30 minutes and cannot push the lawn mower.
Dr Spittaler
15.	Dr Spittaler, neurosurgeon, in his report dated 5 August 2022, noted that he had seen 
Mr Reeves in 2016 for Mr Reeves’ solicitors. Nonetheless, Dr Spittaler advised the insurer in 2022 as an Independent Medical Examiner (IME). Dr Spittaler sets out his history of the injury, noting that the 2013 surgery conducted by Dr Coughlan helped Mr Reeves’ right leg pain and reduced his back pain, but his back pain gradually increased on leaving hospital. 
Dr Spittaler also records that Mr Reeves underwent an L1 to L4 fusion with pedicle screws on the right side by Dr Coughlan. Dr Spittaler noted that Mr Reeves was complaining of lower back pain about the level of the iliac crests and he has lower limb pain with walking about 100m, with the left side being worse than the right side.
16.	After reviewing the radiology, Dr Spittaler opines that Mr Reeves has failed back surgery syndrome. In terms of the further surgery proposed by Dr Coughlan, Dr Spittaler does not support it. He states that Mr Reeves’ pain is well below the upper lumbar region and that he has had two fairly extensive lumbar procedures and has persisting pain. He adds that the bone scan suggests that there is facet arthritis at L5/S1 and the proposed surgery would not deal with this. He explains that this may be a significant contributor to Mr Reeves’ symptoms and this would be supported clinically by his pain on extension, which Dr Spittaler says is a soft indicator of facet joint pathology. Dr Spittaler recommended alternative treatment as follows:
“At the barest minimum I believe that a guided facet joint steroid injection
would be a reasonable diagnostic option. If this leads to some relief, then
something like a radiofrequency neurotomy of the facet joint would be a much less invasive option in treating Mr Reeves' pain.”
17.	The doctor also recommended pain clinic review although he had noted earlier in his report Mr Reeves had previously attended upon Dr Russo and did not find this particularly helpful. Dr Russo is a pain management specialist.
Other medical evidence
18.	AMS Dr Best provided his MAC dated 20 February 2021 in which he assessed Mr Reeves as having 21% WPI. The report has been read but I will not summarise it in these reasons as the contents are not directly relevant as to whether the current proposed surgery is reasonably necessary treatment. Similarly, I have read the reports of Dr Casikar dated 
3 June 2013, Dr Davies dated 19 May 2014, Dr Panjratan dated 30 June 2016 but I am not going to summarise them for the same reason.
19.	Dr Gorman, pain specialist, provided a report dated 28 May 2020, which is now also somewhat dated. Dr Gorman was focused on the efficacy of medicinal cannabis. As noted earlier Mr Reeves did try that under his doctor’s supervision and did not find it to be of assistance. However, usefully, Dr Gorman does refer to number of the radiological investigations as follows: 
(a)	the CT scan of the lumbar spine dated 27 November 2018 referred to the right L1 pedicle screw abutting the medial pedicular cortex in the lateral recess and that the cage at L 1/2 was anteriorly positioned;
(b)	the CT scan of the lumbar spine dated 15 February 2019 showed “fusion between the caged devices and the implant is in progress, although clear lucency does not persist, particularly on the right. The pedicle screw and rod fixation is present from L2 to L4 with no fracture of the hardware. The intervertebral cage device on the right at L2/3 rests on the anterior margin of the disc space adjacent to the marginal osteophyte”;
(c)	a CT of the lumbar spine dated 24 May 2019 reported to potentially show a fracture of the screw within the right L3 pedicle, and
(d)	a regional bone scan dated 28 May 2018 revealed mild and moderate discovertebral disease at L1/2 and L3/4 levels; L4/5 discectomy and disc prosthesis and L5/S1 fusion appear uncomplicated.
20.	The documents in the application to admit late documents have also been read.
SUBMISSIONS
21.	The respondent’s counsel gave an outline of his submissions at the outset of the hearing.  He submitted that the injury found by the AMS was to the L4/5 level and that is why 
Mr Reeves has undergone surgery at that level. It was submitted that Dr Spittaler, when considering the currently proposed surgery at the L2/3, commented that the pain was well below that level. The respondent’s counsel submitted that the issue requiring determination of the Commission is whether the proposed “L2/3 XLIF procedure followed by extension of pedicle screws posteriorly” is reasonably necessary treatment as a result of the injury on 
5 August 2011.
Applicant’s submissions
22.	The applicant submitted that the proposed surgery is to treat the large disc herniation and osteophyte at L2/3 level which is compressing the nerve. It was submitted that this compression is a result of the original injury and treatment that has flowed from that. It is argued that this compression is causing the applicant severe back pain radiating down his left leg as set out by Dr Coughlan. 
23.	Reference was made to the legal principles set out in Diab v NRMA Ltd and Rose v Health Commission (NSW). The applicant says the treatment proposed is appropriate as it will have the effect of reducing the compression and lessening the symptoms. It was also submitted that the treatment proposed by Dr Spittaler relates to a different part of the spine, that being the L5/S1 and the applicant submits that the arthritis in the facet joints at that level is as a result of the original injury. It is argued this is not treating the disc herniation and so it is not an alternative treatment to that proposed by Dr Coughlan.
24.	The applicant says if this argument is not accepted by the Commission, it is submitted that the applicant did have the injection proposed by Dr Spittaler and it was unsuccessful.
25.	Furthermore, the applicant submits this outcome supports that the symptoms complained of by applicant are not arising from the L5/S1 arthritis. It is also argued that Dr Spittaler had recommended pain management but the applicant submits that this would not address the compression. It was submitted that cost is not really an issue.
26.	The applicant argued that the difference between the opinions between Dr Coughlan and 
Dr Spittaler is that Dr Spittaler has focused on the L5/S1 level and he has not referred to the disc herniation at the L2/3 level notwithstanding he had the benefit of 2 March 2022 
CT scan. It is argued that Dr Coughlan, on the other hand, does focus on the presenting symptoms of Mr Reeves which is the pain radiating from his lumbar spine into his left leg. 
27.	It is also argued that Dr Coughlan has had the benefit of treating Mr Reeves from 2013 and he is optimistic that the proposed surgery will alleviate the symptoms. Therefore, it is submitted that the treatment is both appropriate and effective treatment as well.
28.	It is submitted that Dr Coughlan supports that this type of surgery is medically accepted treatment. It should be found that the compression and osteophyte do result from the accepted injury in 2011.
Respondent’s submissions
29.	The respondent submitted the following:
(a)	none of the medical evidence supports that the disc herniation at L2/3 is related to the original injury. This submission is dealt with later in these reasons.
(b)	the CT scan of 2 March 2022 does not make reference to the pedicle screws or cage or other materials to do with the fusion from L1 to L4 and, therefore, counsel questions if there is already fusion from L1 to L4, why is it necessary to do a fusion from L2/3? 
(i)	I note that Dr Gorman does refer to scans that show the pedicle screws and cage, these scans have been referred to above. As to why it is necessary to undertake the surgery, Dr Coughlan advises that Mr Reeves has instability and compression in his spine and this surgery to alleviate this.
(c)	that Dr Coughlan proposes a two-stage procedure, to do the fusion and then to extend the pedicle screws. The respondent says it is not clear how many pedicle screws are present and how the doctor is going to extend them. Counsel argues this raises a question about the effectiveness of the treatment.  
(i)	I do not accept this submission. Dr Coughlan has explained that the surgery is to treat instability and compression and I consider it is not necessary for him to detail the minutiae of the procedure. Dr Spittaler has not raised lack of detail about the procedure as a reason for rejecting Dr Coughlan’s opinion.
(d)	the cost of the proposed treatment is a factor to be taken into account as set out in Diab, and the respondent included cost in its s78 notice when it set out the Diab factors at page 6 of the ARD. Reference was made to the quote dated 
16 May 2022 and the respondent argued that the total cost of the procedure would probably exceed $50,000 when one takes into account the hospital and anesthetist fees, prosthesis costs and like. 
(i)	I note that Dr Coughlan had submitted a quote in 2022 but also on 22 May 2023. In that quote he does itemize his fees but he also makes it clear there will be additional expenses and he sets out the nature of such expenses. The total cost may well reach the figure suggested by the respondent and that is something one needs to take into account. However, I find that the cost is not excessive and is not a reason for rejecting the surgery as being reasonably necessary.
(e)	the findings of the AMS in 2017 are “conclusive” and that the AMS described the reasons for making his permanent impairment assessment by reference to injury at L4/5 and L5/S1. 
(i)	However, counsel did concede that the AMS performed his assessment before the second surgery. I do not accept the tenor of this submission. The Medical Assessment Certificate is binding as to the percentage of permanent impairment. In this case the AMS did not have to consider if the pathology now evident at L2/3 is related to the original injury. Just because the AMS’s only reference to injury was at L4/5 and L5/S1 is not conclusive as to the questions requiring determination in these proceedings.
(f)	counsel argued it may well be that it is the degenerative changes that have overtaken Mr Reeves condition. 
(i)	Quite simply this submission is not supported by the medical evidence from Dr Spittaler. The earlier report from Dr Spittaler is not before the Commission but the AMS does refer to it at point 10c of his MAC. He states that Dr Spittaler in his report dated 4 March 2016 did not discount for a pre-existing condition, although the AMS did. Nowhere in Dr Spittaler’s report dated 5 August 2022 does the doctor advance the argument made by the respondent’s counsel.
(g)	the pain management treatment suggested by Dr Spittaler should be accepted as alternate treatment. It is argued that there is a lack of evidence from the applicant about the pain management that he has undertaken previously. Counsel also submitted that Dr Spittaler’s view that further surgery should not be undertaken because Mr Reeves has failed back syndrome.
(i)	I explain below why I prefer the opinion of Dr Coughlan to that of Dr Spittaler. I also accept the applicant’s submission that this proposed surgery is to treat instability and compression at L2/3 and pain management treatment cannot achieve stability of the spine. So, it is not alternate treatment to the proposed surgery. 
(h)	the only explanation offered by Dr Coughlan for performing the surgery is to relieve instability at that level, L2/3, and the compression. Counsel was critical of the doctor because he stated that he was “optimistic” that the surgery would relieve some of his symptoms, but counsel argues that the doctor has not explained how much of the symptoms and which symptoms would be alleviated.
(i)	I find these are not reasons to reject Dr Coughlan’s opinion. Results of surgery can never be guaranteed. Dr Coughlan is a neurosurgeon who has treated Mr Reeves for many years and if he feels optimistic about the prospects of surgery, I find his opinion should be given weight.
(i)	it is also submitted that there is a lack of evidence about the appropriateness of the proposed procedure, noting there is no evidence from Mr Reeves’ treating psychologist.
(i)	I reject this submission because Dr Coughlan has expressed the opinion the surgery is appropriate. I find the lack of a report from Mr Reeves treating psychologist does not diminish the probative weight that I find should be afforded to Dr Coughlan’s opinion.
(j)	Dr Gorman sets out various radiological investigations in his report but the applicant has not placed before the Commission any specialist opinion to explain the radiology and while Dr Coughlan says the proposed surgery is consistent with the radiology that should not be accepted without explanation. It is submitted without such explanation it cannot be accepted that there is a proper basis for the surgery he proposes. It is also argued that Dr Gorman thought Mr Reeves pain was neuropathic in nature and counsel submits this calls into question whether this surgery would be effective treatment.
(i)	I find the claim for the proposed surgery needs to be considered in context. Dr Coughlan has had the benefit of the radiology which does show disc herniation at L2/3 and compression. There is nothing further for Dr Coughlan to explain as he has stated on several occasions that this particular surgery is to treat that pathology. The surgery is not just to treat pain overall in the spine, it is to provide stability to the spine at that level and reduce compression and to extend the pedicle screws.
(k)	Dr Spittaler says the pain is well below the upper lumbar region and there is a real issue as to whether the proposed surgery will alleviate Mr Reeves symptoms. Counsel submitted that further injections should be performed as diagnostic tools to ensure that the L2/3 level is the appropriate level for surgery to treat. 
(i)	I reject this submission because Dr Coughlan is not purporting to treat all of the pain of which Mr Reeves suffers. Dr Coughlan is concerned about the stability of the spine at L2/3 because of the disc herniation and compression.
(l)	Counsel submitted that when all of the evidence is read together, the Commission would not be satisfied that all of the factors in Diab have been sufficiently taken into account. I consider that the principles in Diab have been satisfied for the forgoing reasons and those set out below.
Applicant’s submissions in reply
30.	The applicant’s solicitor submitted that Dr Coughlan had reviewed the scans and the history from the applicant is of the pain radiating into the left leg. He argues that this is consistent with the radiology and that the treatment the applicant has received by the introduction of the hardware covers the area of the proposed surgery. He also submitted that the Commission should not be critical of Dr Coughlan for stating he is optimistic of a good outcome form the proposed surgery.
Determination
31.	In terms of whether the proposed surgery is reasonably necessary as a result of the work-related injury, the legal test to apply is that set out in Murphy v Allity Management Services Pty Ltd, whether there has been a material contribution to the need for the treatment by the injury. Murphy is authority for the proposition that a condition can have multiple causes and the work injury does not have to be the only, or even a substantial cause, before the treatment is recoverable under s 60 of the 1987 Act. 
32.	Deputy President Roche stated at [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).”
33.	The insurer in its s 78 notice dated 24 August 2022 did not dispute the causal element of      s 60. The basis for its declinature was based on the opinion of Dr Spittaler who did not recommend further surgery as in the doctor’s view Mr Reeves had failed back syndrome and there was alternate treatment to be considered such as a guided facet joint steroid injection and radiofrequency neurotomy of the facet joint if the steroid injections provided relief. In the s 78 notice dated 9 August 2023 the insurer again gives as the basis for the continued declinature that there are alternate treatment options including pain clinic review. The insurer states, “Given that there are treatment alternatives available, we do not consider section 60 of the 1987 Act has been satisfied.” Nowhere in the insurer’s notices does it give as a reason that there is no evidence of a causal connection between the pathology at L2/3 and the original injury.
34.	The insurer in its letter to Dr Coughlan dated 30 May 2022 asked the doctor the following questions:
“1. Please outline the clinical indications and appropriateness of the recommended L2/3 XLIF (Extreme lateral interbody fusion) procedure followed by extension of his pedicle screws posteriorly to treat the work-related injury in this case. Please outline your reasoning.
2. How widely is the proposed surgery accepted as a treatment modality to treat lower back pain? Please outline your reasoning with reference to evidence-based literature.
1.	In your clinical opinion, do the radiological findings support the need for surgery? Please specify.
2.	In your clinical opinion, have adequate nonsurgical treatment options been explored?
3.	Do you recommend any alternative treatment options, and if so, please advise the type, duration and frequency of the treatment. What would be the expected outcome from the treatment.”
35.	Dr Coughlan answered these questions in his letter dated 17 June 2022. He explains:
“It has been well documented in my previous letters that Terrence has had ongoing issues with his lumbar spine since the initial workplace injury and subsequent surgeries. Terrence currently reports severe back pain radiating down his left leg. As per my letter dated 16 May 2022, at the L2/3 level he has a large disc herniation and osteophyte which is compressing the nerve. Given Terrence's previous extensive surgery and the size of the disc herniation, I feel it would be best to address this in the form of an L2/3 XLIF procedure followed by extension of his pedicle screws posteriorly. This will reduce the compression and provide stability at that level”
36.	The insurer did not challenge Dr Coughlan as to why the surgery at L2/3 was related to the original injury. In my view, such a connection is evident because in 2018 Mr Reeves underwent the fusion surgery from L1 to L4 and Dr Coughlan has explained that Mr Reeves has the pathology at L2/3 and the doctor wants to provide stability at that level and reduce compression.
37.	Nonetheless the respondent’s counsel submitted that there was no evidence about such a causal connection. Had the respondent wished to make a serious challenge to the causal connection it is surprising they did not seek Dr Spittaler’s views regarding the same. The applicant has the onus of proof to establish the elements in s 60 of the 1987 Act but one of the reasons for the dispute notices containing reasons for the decisions by the insurer is so the issues in dispute can be addressed. I reject the respondent’s counsel’s submission that the pathology evident at L2/3 could be the underlying degenerative changes progressing. There is no medical evidence to support such a contention.
38.	The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates wherein Kirby P (as his Honour then was) said (at [461G]) (Sheller and Powell JJA agreeing) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. The Court also recognised that an event can set in train a series of events. I find this has occurred as evident by the multiple surgeries Mr Reeves has had stemming from his original injury.
39.	In Mr Reeves’ case as a result of the lumbar injury on 5 August 2011 he has undergone two major surgical procedures the first on 15 October 2013 in the form of an anterior L5/S1 spinal fusion and disc replacement at L4/5 level. The second in 2018 involving fusion from L1 to L4. Both surgeries were performed by Dr Coughlan. Dr Coughlan has advised the insurer that since the original injury and these subsequent surgeries Mr Reeves has had ongoing issues with his lumbar spine. The CT scan has identified disc herniation at L2/3, which Dr Coughlan has described as large. Dr Coughlan does not attribute all of Mr Reeves’ symptoms to this pathology and does not assert that the surgery will give a complete recovery but I find it is significant that Dr Coughlan says the surgery will provide stability at the L2/3 level. Given a fusion has already been performed encompassing this level, it is obviously important for the area within the fusion to be stable.
40.	While I acknowledge it would have been helpful to have obtained a detailed all encompassing report from Dr Coughlan about the pathology in Mr Reeves’ lumbar spine, I am satisfied when all the medical evidence is read together that applying Murphy there is a material contribution from the workplace injury to the need for this surgery. The type of surgery proposed, an L2/3 XLIF and extension of the pedicle screws, represents part of the surgical treatment Mr Reeves has needed to treat his injury. In addition, there is also a suggestion noted in the radiology reported by Dr Gorman that a pedicle screw at L3 may be fractured. Again, I find this demonstrates a causal link with the prior surgery, which was performed as a result of the injury, and the need for this further procedure.
“Reasonably necessary”
41.	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 in Diab v NRMA Ltd wherein Roche DP 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.”
42.	In Diab Deputy President Roche cited the decision of Judge Burke in Rose v Health Commission (NSW) 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 (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.
[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.”
43.	Dr Spittaler has not examined Mr Reeves after he underwent the CT Guided injection at L3/4 facet joint. He was also not really focused on the type of proposed surgery at L2/3 because he regarded Mr Reeves as having failed back surgery syndrome and because Mr Reeves had pain at lower levels of his back.
44.	I find that Dr Coughlan’s opinion should be preferred to that of Dr Spittaler because he has treated Mr Reeves for many years and having performed two surgical procedures he is in the best place to judge if this further surgery is reasonably necessary. His responses to the insurer in his letter dated 17 June 2022 advised the procedure is well documented and widely accepted to treat pathology such as Mr Reeves’. He adds that the radiological findings support the need for the surgery. He also says there are no appropriate non-surgical options to treat Mr Reeves’ pathology. The pathology the doctor is referring to is at the L2/3 level with the disc herniation and osteophyte that are compressing the nerve. 
45.	In relation to the factors set out in Diab, I have taken into account the likely cost and I accept the respondent’s submission that the total could be in the range of $50,000. While this is expensive, I find it is not extraordinarily so. I accept Dr Coughlan’s advice that this type of procedure is well documented and widely accepted for the pathology suffered by Mr Reeves. I also accept that there are not non-surgical options to adequately treat the pathology at L2/3. Pain management will not alleviate the compression or provide stability. While it is the case that the surgery will not remove all of Mr Reeves’ pain, that is not the test. Dr Coughlan is proposing this surgery to treat a specific issue, being the large disc herniation, compression and to provide stability.
46.	Therefore, I find that the surgery proposed by Dr Coughlan is reasonably necessary treatment as a result of the injury on 5 August 2011 and I order that the respondent is to pay the costs of and incident to that surgery.