Abdulrahman v Post Tension Company Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Abdulrahman v Post Tension Company Pty Ltd [2023] NSWPIC 259
APPLICANT:	Osman Abdulrahman
RESPONDENT:	Post Tension Company Pty Ltd
Member:	Cameron Burge
DATE OF DECISION:	5 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Treatment expenses; GP recommendation for provision of mattress with hot and cold controls, massage char and massage gun opposed by respondent as not reasonably necessary treatment for an accepted lumbar spine injury; Held – the fact the applicant’s GP is the only doctor who recommends the treatment does not of itself preclude it from being reasonably necessary; the GP had provided a supplementary handwritten report in which she specifically addressed the issues with which the mattress and massage gun would assist the applicant; she did not do so with regards to the massage chair; the provision of the treatment recommended by the GP is not of a nature which would preclude the applicant also undertaking the treatment regime recommended by his treating specialists; it is not necessary for the proposed treatment to be the only appropriate treatment available in order to be reasonably necessary; the mattress and massage gun are reasonably necessary; award for the respondent on the claim for the massage chair; Diab v NRMA Limited and Rose v Health Commission (NSW) followed.
determinations made:	1. The applicant suffered an injury to his lumbar spine in the course of his employment with the respondent on 5 February 2018. 2. The provision to the applicant of a mattress with hot and cold controls and of a massage gun as recommended by Dr Salama is reasonably necessary as a result of the injury referred to in [1] above. 3. The respondent is to pay the costs of and incidental to a mattress with hot and cold controls and of a massage gun, as recommended by Dr Salama. 4. Award for the respondent on the claim for the costs of and incidental to a massage chair.

STATEMENT OF REASONS

BACKGROUND

For a three-week period leading up to 5 February 2018, Mr Osman Abdulrahman (the applicant) suffered increasing lower back pain while carrying out his duties as a cable stressor for Post Tension Company Pty Ltd (the respondent). During that period, the applicant attended his general practitioner (GP) Dr Salama, underwent a CT scan and was treated with analgesia.
On 5 February 2018, the applicant was lifting cabling from ground level when he felt a sharp pain in his lower back radiating into his right leg, causing him to fall to the ground. The applicant reported the complaint to his supervisor then drove to Concord Hospital where he was assessed before returning to his GP. The applicant underwent an MRI of his lumbar spine on 6 February 2018 which demonstrated a predominantly right-sided shallow posterior disk protrusion with posterior facet arthropathy and ligamentum flavum thickening.
The applicant was eventually referred to Prof Van Gelder, neurosurgeon who performed an L4/5 lumbar microdiscectomy and decompression on 10 March 2021. Following surgery, the applicant underwent physical rehabilitation from which he has since been discharged, however, he continues to take painkilling and anti-inflammatory medication and says he has had no significant improvement from either the surgical intervention or subsequent attendance on a pain specialist.
The applicant commenced these proceedings seeking payment of permanent impairment compensation together with medical and treatment expenses. The permanent impairment claim was remitted to the President for referral to a Medical Assessor to determine the degree of the applicant’s whole person impairment arising from the accepted injury.
On 20 January 2023, Dr Home, Medical Assessor issued a Medical Assessment Certificate (MAC) in which he assessed the applicant as suffering a 12% whole person impairment. On 13 April 2023, in accordance with the wishes of the parties, I issued a Certificate of Determination ordering the respondent pay the applicant permanent impairment compensation consistent with the findings of Dr Home’s MAC.
The parties were unable to reach agreement concerning the specific medical and treatment expenses sought by the respondent, namely the provision of a massage gun, a mattress with hot and cold controls and a massage chair. It is these treatment expenses which are the subject of the dispute at issue.

ISSUES FOR DETERMINATION

The parties agree that the only issue remaining in dispute is whether the massage gun, mattress and massage chair recommended by the applicant’s GP are reasonably necessary.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The parties attended a hearing on 13 April 2013. The applicant was represented by Mr Daley instructed by Ms Rosie. The respondent was represented by Ms Balendra instructed by
Mr Strachan.
As already noted, a separate Certificate of Determination disposing of the claim for permanent impairment compensation was issued by the Personal Injury Commission (Commission) on 13 April 2023.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no oral evidence called to the hearing.

FINDINGS AND REASONS

Reasonable necessity of the treatment expenses sought

The only issue for determination in these proceedings is whether the treatment expenses sought by the applicant are reasonably necessary. There is no issue he suffered a serious lumbar spine injury in the course of his employment with the respondent at the L4/5 level which led to radicular symptoms warranting a surgical intervention in March 2021 by Prof Van Gelder.
There is no suggestion that the treatment expenses at issue are sought for any reason other than the applicant’s injury.
The applicant has the onus of proving the treatment proposed by his GP is reasonably necessary. The test of reasonable necessity of medical treatment was set out by Burke CCJ in Rose v Health Commission (NSW) [986] 2 NSWCCR 2 (Rose) where his Honour said:
“3.     Any necessity for relevant treatment results from the injury where its purpose and potential effects 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 judgement 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 a 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.”
In Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab), Deputy President Roche noted the Court of Appeal had considered the meaning of “reasonably necessary” in Clampett v WorkCover Authority (NSW) [2003] NSWCA 52, albeit in the context of home renovations rather than medical treatment. The Court noted the trial judge had sought guidance from the decision in Rose. Grove JA referred to the dictionary definition of “necessary” as being “indispensable, requisite, needful, that cannot be done without” (Oxford Dictionary) and “that [which] cannot be dispensed with” (Macquarie Dictionary). At paragraphs 23 and 24, his Honour stated:
“23. The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation, it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker’s home, having regard to the nature of the worker’s incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’, there is this statutory obligation specifically to have regard to the nature of the worker’s incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.
24. The statute does not inhibit enquiry as to what may be thought reasonable in all, or in any particular, circumstances but its terms clearly point to predominant attention being paid to the nature of the worker’s incapacity. In my opinion, to reject the appellant’s proposal on the basis that expenditure is to be made on premises of which he is a weekly tenant is an elevation rather than a moderation of the meaning of ‘necessary’.”
In Diab, Roche DP noted the effect of the decision in Clampett and commented as follows:
“85. The approach in Clampett is consistent with the modern approach to statutory interpretation, which is to construe the language of the statute, not individual words… Thus, ‘reasonably necessary’ is a composite phrase in which necessity is qualified so that it must be a ‘reasonable necessity’ (Giles JA) (Campbell JA agreeing) in ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48] (O’Shea). The Court, Bathurst CJ, Beazley and Meagher JJA, followed this approach in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113] (Moorebank).
85.    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…
87.    Giles JA added (at [49] in O’Shea) that the qualification whereby the necessity must be reasonable calls for an assessment of the necessity having regard to all relevant matters, according to the criteria of reasonableness. His Honour was talking in the context of whether an easement should be granted under s 88K of the Conveyancing Act 1919, which provides that ‘the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement’. However, his Honour’s observations are applicable in the present matter and are clearly consistent with Clampett.
88.    In the context of s60, 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 treatments;
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 a 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] NSWCCC 13). Thus, it is not simply a matter of asking, as well as 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, ‘no paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”
For the applicant, Mr Daley submitted that while there were forms of alternative treatment to those proposed by the applicant’s GP, they had been tried and proven unsuccessful. They included surgery, pain management, neurology, physiotherapy, analgesic medication and rehabilitation programs. He disputed the respondent’s contention that treatment modalities such as exercise physiology had not been attempted and noted the report of Ms Romeo-Foti at page 20 of the Reply which detailed the attempts at exercise physiology and the applicant’s ongoing problems as follows:
“Mr Abdulrahman continues to present with and report restrictions and pain symptoms associated with his lower back and lower limbs.
Based on this, the programme has only been progressed slightly with Mr Abdulrahman continuing to demonstrate the following during our treatment consultations, however with minimal tolerances to each exercise:
·    Walking (forward right throw/hip abduction),
·    Standing in a lateral hip flexion,
·    Standing in a lateral knee flexion,
·    Assisted squatting,
·    Thoracic lateral flexion and rotation,
·    Calf raises.”
Those ongoing issues are, the applicant submitted, consistent with the ongoing complaints set out in his statement. At paragraph 35 and following, the applicant stated:
“35. Unfortunately, the surgery has not provided me with any relief. I still suffer from back pain and right leg pain. I still suffer from weakness in my right leg as well as weakness, numbness and tingling in my right foot. I still have sciatica from my lower back into my right leg as well as a dull ache across my lower back.
36.    I am very disappointed with the result of the surgery. It has not helped at all. I have difficulty standing.
37.    I have difficulty standing for longer than 10 minutes at a time. I have difficulty walking for long distances. I cannot sit for longer than 15 minutes without pain. I cannot drive for longer than 10 minutes without pain. I cannot bend without painful. I cannot lift heavy items without pain.
38.    The injury I have sustained at work has changed my life. I’m always in pain. I cannot sleep. I am depressed. I am anxious. I have low self-esteem because I cannot work.”
Mr Daley submitted the applicant’s inability to sleep is relevant to the reasonableness or otherwise of the provision of a mattress for the applicant as suggested by his GP.
Mr Daley submitted the applicant should not be denied treatment which may help him to alleviate symptoms in circumstances where he may then be able to take or lower levels of pain medication than he is currently taking, and which are harming his digestive system.
Mr Daley noted it was the applicant’s GP who recommended the mattress with hot and cold controls, massage gun and positive pressure massage chair in a report to the respondent’s insurer on 10 September 2021. He emphasised that it was not the applicant himself who sought this treatment, but rather it was recommended by his treating doctor.
I have no difficulty in accepting that submission.
In a report to the applicant’s solicitors dated 7 March 2022, the applicant’s GP Dr Salama set out her reasons for recommending the proposed treatment modalities. She noted the following:
“He had his operation on 10 March 2021 done by Dr James Van Gelder.
Mr Osman is continuing on medication and physiotherapy to date, however, he continues to complain from back pain and he continues to take his medication regularly.
It is recommended that he has a bed mattress with cold and hot controls as well as a positive pressure by a massage chair due to the fact that his back pain is still persistent after the operation.
Although he had operative treatment, Mr Osman did not have relief from his back pain and therefore needs to continue on his analgesics as well as his anti-inflammatory treatment.”
Mr Daley appropriately conceded that there was no specialist opinion to support Dr Salama’s recommendations. Nevertheless, he submitted the Commission could infer from the other material that the applicant needed to explore the treatment recommendations because of the comparative failure of the other treatment modalities which had been attempted.
Mr Daley noted the opinion of the applicant’s GP was medically unchallenged, given the respondent offered no medical evidence to contradict it. Whilst that may be the case and is a matter which can be taken into consideration, as a matter of law the respondent is under no obligation to produce medical evidence in circumstances where an applicant bears the onus of proving his case. Nevertheless, it is also open to the Commission to accept an opinion of a GP in matters such as these, and certainly appropriate in circumstances where no contrary opinion is proffered, provided the GP’s views meet the relevant criteria to satisfy the requirements of establishing the reasonable necessity of any proposed treatment.
Adopting the criteria set out in Diab, Mr Daley submitted the treatment modalities were appropriate, given they were recommended by the applicant’s longstanding treating GP. He noted the alternatives referred to by Ms Balendra in submissions had been tried by the applicant with little to no effect.
In terms of effectiveness, Mr Daley noted Dr Salama believed the provision of the chair, mattress and massage gun would assist the applicant and submitted the costs were not unreasonable in the context of the applicant’s injury and ongoing issues.
In terms of the likely effectiveness, Mr Daley noted Dr Salama’s opinion was not challenged by that of any other expert and the recommendation ought to be accepted by the Commission as an accepted treatment regime for the applicant’s injury.
For the respondent, Ms Balendra submitted the respondent was not obliged to put forward its own medical case in circumstances where the respondent asserted the GP was essentially on a frolic in recommending the treatment sought. She noted the applicant’s own IME Dr Bodel suggested further surgery was appropriate for him, whereas his treating surgeon Prof Van Gelder stated at page 124 of the Application that the appropriate treatment for the applicant as at May 2021 was:
“… strenuous rehabilitation. He may benefit from referral to an independent rehabilitation provider. He will benefit from swimming or instruction on self-directed water exercises or hydrotherapy. He will benefit from assistance with retraining. He indicated an interest in working but does not believe he will be able to return to heavy construction work. It is important that rehabilitation is active and self-directed as far as possible. Social and recreational activities are more effective than structured exercises and physiotherapy. From a neurosurgical perspective, he is suitable for light work and a greater return to light or moderate work from now. Unfortunately, he will have to regain a lot of confidence and mobility in his low back before work is possible.”

Ms Balendra also pointed to the opinion of Dr Mylordi, treating occupational physician in his report to Dr Salama dated 2 June 2021. Dr Mylordi also noted the applicant’s need to redeploy from heavy manual labour to light or sedentary work and also emphasised the need to engage a rehabilitation provider to provide a vocational assessment and recommendation for work trial, together with the increase in physical activity such as walking and swimming.
Ms Balendra submitted the GP’s proposal stands on its own. She noted the specialist who had treated the applicant each emphasised the requirement for additional physical activity and therapy as opposed to the acquisition of treatment aids such as the massage gun, chair and bed.
In terms of the cost of the proposed treatment, Ms Balendra submitted given the very serious doubts as to its potential effectiveness, the cost was relatively significant. Moreover, Ms Balendra submitted it is not clear that the treatment would likely be effective as there was no indication given that the applicant has tried any of the equipment before or that it would provide him with any relief. She submitted there is no evidence, for example, the applicant had tried massage therapy, therefore it was impossible to say whether the provision of a massage gun would assist him.
Ms Balendra submitted the highest the applicant’s case could be put is that the applicant’s GP had submitted he would benefit from some treatment modalities which had not been considered by experienced treating occupational physicians, pain specialists and neurosurgeons. Additionally, Ms Balendra noted Dr Bodel’s report post-dated that of
Dr Salama and he indicated the applicant required further surgery rather than the treatment modalities recommended by the GP.
Dr Salama provided a handwritten report found at page 129 of the Application. In that report, she gave further reasons in support of the recommended treatment regime. She suggested a massage gun was required to relieve the pain in the applicant’s back and to hopefully lessen the reliance on analgesia. Dr Salama said a mattress with hot and cold sensors will provide the applicant with pain relief during the night, which I note is consistent with a significant complaint which the applicant states he continues to suffer from after the surgery.
Of significance in my view is that the handwritten report notes Dr Salama had considered the recommendations of both Prof Van Gelder and Dr Mylordi. Dr Salama noted, however, that she is the doctor with the day-to-day care of the applicant, and that he is in a considerable amount of pain despite prior surgery, and he currently requires analgesics and anti-inflammatory treatment together with “the pain-relieving aids mentioned above”.
I note that Dr Salama has not provided in that handwritten report a specific reasoning for the provision of a massage chair. On balance, I am not satisfied the applicant has discharged his onus of proof in relation to the provision of that recommended treatment. However, I am of the view that the hot and cold mattress together with the massage gun is treatment which the applicant should have afforded to him rather than it be forborne.
I am mindful of the respondent’s submissions concerning the cost of the treatment and whether it will be effective, however, it is not necessary for treatment to offer a cure of a condition in order to be reasonably necessary. A potential alleviation of symptoms can be enough. Moreover, as was made clear in Diab, the proposed treatment need not be the only potentially effective treatment modality in order to be reasonably necessary. I also note the provision of a mattress and massage gun does not prevent the applicant from also undertaking the treatment modalities recommended Prof Van Gelder and/ or Dr Mylordi.
On balance, I am of the view that the provision of a hot and cold mattress together with a massage gun is reasonably necessary medical treatment as a result of the injury suffered by the applicant in the course of his employment with the respondent. I am not, however, satisfied that the applicant has discharged his onus of proof in establishing that the provision of a massage chair is reasonably necessary. Dr Salama has not provided any explanation as to the likely benefit the applicant would be afforded by such a chair.
I also note the applicant has already undergone invasive surgical treatment to little or no effect. The modalities which I have found reasonably necessary are conservative, comparatively inexpensive and offer the prospect of the applicant’s symptoms being alleviated.
Accordingly, there will be an order that the respondent pay the cost of an incidental to the provision of a hot and cold controlled mattress and a massage gun to the applicant, and there will be an award for the respondent on the claim for the provision of a massage chair.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out at page 1 of the Certificate of Determination.

[2023] NSWPIC 259

5 June 2023