Ajay Fibreglass Industries Pty Ltd t/as Duraplas Industries v Yee

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Ajay Fibreglass Industries Pty Ltd t/as Duraplas Industries v Yee [2012] NSWWCCPD 41
APPELLANT:		Ajay Fibreglass Industries Pty Ltd t/as Duraplas Industries
RESPONDENT:		Christopher Yee
INSURER:		QBE Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-9983/11
ARBITRATOR:	Ms C D’Souza
DATE OF ARBITRATOR’S DECISION:		29 March 2012
DATE OF APPEAL DECISION:		6 august 2012
SUBJECT MATTER OF DECISION:		Hospital and medical expenses under s 60 of the Workers Compensation Act 1987; whether cost of proposed surgery is reasonably necessary as a result of injury
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Mulcahy Lawyers
Respondent:	Bourke Love Lawyers
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 29 March 2012 is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

INTRODUCTION

This appeal concerns an order for the payment of proposed hospital and related medical expenses and whether those expenses are reasonably necessary as a result of the relevant injury.
By consent, the name of the appellant has been amended to Ajay Fibreglass Industries Pty Ltd t/as Duraplas Industries.

FACTUAL BACKGROUND

On 23 August 2006, the respondent worker, Christopher Yee, was involved in a car accident on his way to work for the appellant employer, Ajay Fibreglass Industries Pty Ltd t/as Duraplas Industries. The accident was a head-on collision, with the car with which Mr Yee’s car collided estimated to be travelling at about 80 km an hour.
Mr Yee was taken to Lismore Base Hospital by ambulance. He complained of neck pain, bruising across his right shoulder, upper lumbar pain and pain in his right foot. After one week off work, Mr Yee returned to light duties. Because of his condition, Mr Yee resigned in early 2007 and found other employment with which he was able to cope. It is not known when he stopped that work but, at the time he saw Dr McKee on 4 August 2011, Mr Yee had been on a disability support pension for almost two years.
Mr Yee continued to have pain and, on referral from his general practitioner, saw Dr Cleaver, orthopaedic surgeon, in 2010. Dr Cleaver recommended the following surgery: L5/S1 disc replacement, L2/3 and L3/4 spinal fusion, and C4/5 and C5/6 anterior cervical decompression and fusion. He estimated the total cost of the proposed surgery and related treatment to be around $127,000 (later quantified at $127,095.75).
As the relevant third party motor vehicle insurer declined to meet the cost of the proposed surgery, Mr Yee applied to the Motor Accidents Authority (MAA) Medical Assessment Service for an opinion on whether the surgery was reasonable and necessary in relation to the subject injury. In a Certificate issued under Pt 3.4 of the Motor Accidents Compensation Act 1999 on 9 September 2010, Professor Lance concluded that the surgery was not reasonable or necessary and did not relate to the injury caused by the accident.
The appellant’s workers compensation insurer, QBE Workers Compensation (NSW) Ltd (QBE), declined liability for the surgery on the ground that it was not reasonably necessary as a result of the injury and the quoted cost exceeded the maximum amount payable under s 61(3) and s 62(5) of the Workers Compensation Act 1987 (the 1987 Act).
Mr Yee applied to the Commission for an order that the surgery is reasonably necessary as a result of his injury. The Registrar referred the matter to Associate Professor Ryan, an Approved Medical Specialist (AMS), for an opinion under s 60(5) of the 1987 Act. Associate Professor Ryan issued a non-binding Medical Assessment Certificate (MAC) on 20 December 2011 stating that the surgery was neither reasonable nor necessary.
The matter proceeded to arbitration before a Commission Arbitrator. The Arbitrator determined “on the papers” that the surgery and related hospital, medical and other expenses are reasonably necessary and that the appellant is liable for the cost of that treatment. The Commission issued a Certificate of Determination on 29 March 2012 in the following terms:
“1. That the respondent is to pay the applicant’s medical, hospital and related expenses pursuant to section 60 of the Workers Compensation Act 1987 in respect of cervical and lumbar spinal surgery as recommended by Dr N Cleaver.
2. I direct pursuant to sections 61(4) and 62(6) of the Workers Compensation Act 1987 that the respondent is liable for the cost of medical and related treatment and hospital treatment additional to the maximum amounts fixed by sections 61(3) and 62(5) of the Workers Compensation Act 1987.
3. Respondent to pay the applicant’s legal costs as agreed or assessed.”
The appellant has challenged the Arbitrator’s decision and orders.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

ARBITRATOR’S REASONS

The Arbitrator concluded that Drs McKee, Cleaver and Boyce supported a causal connection between the accident and Mr Yee’s cervical and lumbar spinal symptoms, and Dr Ashwell supported a causal connection between the accident and Mr Yee’s cervical spine symptoms. She found that Mr Yee’s cervical and lumbar symptoms were, on the balance of probabilities, due to an aggravation of his constitutional degenerative condition as a result of the accident and that “discal injury and trauma” was present.
Though Dr Robinson said (in 2007) that Mr Yee was improving with conservative treatment, Mr Yee subsequently became worse and, in Dr Cleaver’s opinion, had failed to respond to conservative treatment.
As Dr Cleaver was an orthopaedic surgeon and Dr Pascall an occupational physician, the Arbitrator felt that Dr Cleaver was better qualified to assess the need for surgery. The Arbitrator said that Dr Cleaver gave reasons for relating Mr Yee’s condition to the accident, namely, that there was documented evidence of radiculopathy in the back and, with respect to the neck, though there were no radicular symptoms, surgery was required as a result of traumatic injury to the C5/6 disc related to the accident.
As to Associate Professor Ryan’s statement that, at Mr Yee’s age, degenerative changes in the cervical spine were likely to be present and asymptomatic in a large proportion of the population, the Arbitrator said that, as Mr Yee did suffer symptoms in his neck, she did not find Associate Professor Ryan’s reasoning persuasive.
The Arbitrator preferred the opinion of Dr Cleaver because he was Mr Yee’s treating surgeon and had examined him in detail on a number of occasions. His reports and opinions were detailed, thorough and persuasive, and were consistent with the legal authorities discussed. Dr McKee, a qualified specialist, was also of the view that the surgery was reasonably necessary.
The Arbitrator noted that Mr Yee had received conservative treatment for over three years and experienced high levels of pain. Rather than Mr Yee’s condition improving, in Dr Cleaver’s opinion, it was deteriorating.
The following observations emerged from an analysis of the medical evidence as a whole:
(a)     Mr Yee was suffering from debilitating pain and was deteriorating;
(b)     conservative measures had failed to assist him;
(c)     Dr Cleaver and other medical practitioners who supported the surgery were satisfied, on the radiological and similar testing, that discal injury and trauma were present as a result of the accident, and
(d)     the proposed surgery was appropriate for such injuries.
Though noting the opinion of Associate Professor Ryan that there was a statistically low chance of a successful outcome for Mr Yee, the Arbitrator was more persuaded by the opinion of the treating specialist, Dr Cleaver, who had the benefit of a number of consultations with Mr Yee, and spent considerable time in considering whether or not surgery was likely to benefit Mr Yee. She was satisfied that there was a reasonable chance of a successful outcome for Mr Yee as a result of the proposed surgery, that is, the treatment was competent to alleviate the effects of his injuries.
In view of Mr Yee’s constant pain and the failure of conservative treatment to assist him, the treatment proposed by Dr Cleaver “should be afforded to, and should not be forborne by Mr Yee” ([56]). In the alternative, it was clear that, without the proposed surgery, Mr Yee would undoubtedly continue to experience high levels of pain, which conservative treatment has failed to alleviate, and it is therefore better for him to have the surgery than not to have it.
With respect to the expense of the proposed surgery, the Arbitrator found that, given the major nature of the surgery, the cost was reasonable in all the circumstances, and she made the necessary direction, pursuant to s 61(4) and s 62(6), with respect to exceeding the maximum payable.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in finding that:
(a)     discal injury and trauma was present resulting from the accident on 23 August 2006;
(b)     the proposed surgery was appropriate;
(c)     there was a reasonable chance of a successful outcome for Mr Yee, as a result of the proposed surgery;
(d)     the cost of the proposed surgery was reasonable under all the circumstances, and
(e) the proposed surgery is reasonably necessary pursuant to s 60 of the 1987 Act.

SUBMISSIONS

The appellant employer’s submissions

In a review under s 352 of the 1998 Act, it is not necessary that the Presidential Member identity error before intervening (Nominal Insurer v Al Othmani [2012] NSWCA 45 at [57]). The Arbitrator has awarded medical, hospital and related expenses to the value of at least $127,095.75 in circumstances where Associate Professor Ryan and Professor Lance, both of whom were appointed independently of the Workers Compensation Commission and the Motor Accidents Authority respectively, have rejected that surgery as being reasonably necessary. In the premises, a review pursuant to s 352 is warranted “even if Arbitrator D’Souza is found to have demonstrated no error [of] law”.
The only truly independent expert evidence in the case is from Associate Professor Ryan and Professor Lance, who both concluded that there was no discal injury or trauma present from the trauma and, because they constitute the only genuinely independent evidence in the proceedings, “special or additional weight” should be accorded to their evidence. The Arbitrator did not accord this “special or additional weight” to their evidence.
The opinions of Professor Lance and Associate Professor Ryan (that the accident caused no discal injury or trauma) are supported by the following evidence:
(a)     Dr Robinson, who, in his report of 17 May 2007, diagnosed Mr Yee to have soft tissue injuries;
(b)     Dr Boyce, who, in his MAA Medical Assessment Service Certificate dated 1 July 2009, diagnosed flexion/extension injury and whiplash to both the cervical and lumbar spines, and
(c)     Dr Virginia Pascall, who, in her report of 16 May 2010, diagnosed whiplash associated disorder DRE I for the cervical spine and DRE II for the lumbosacral spine.
The weight of expert evidence is in favour of finding that there is no discal injury and trauma as a result of the accident, even without special or additional weight being given to the evidence of Associate Professor Ryan and Professor Lance. Once the “special or additional weight” is added to the independent evidence of Associate Professor Ryan and Professor Lance, the balance of the medical evidence is overwhelmingly in favour of a finding that there is no discal injury or trauma present resulting from the accident.
Even if it is found that there is some measure of discal trauma and injury present, it does not follow that the proposed surgery is appropriate. The weight of the medical evidence overwhelmingly establishes that the proposed surgery is not appropriate and, therefore, not reasonably necessary, even if some measure of the discal trauma and injury is found to be present resulting from the injury.
Further medical evidence concludes that no surgery is indicated, or fails to find any relevant pathology or clinical indicator that could possibly point to any surgery of any kind as being appropriate. This evidence includes:
(a)     Dr Robinson’s evidence in his report of 17 May 2007, when he recommended ongoing conservative therapy and stated that there was no pathology requiring further investigation;
(b)     Dr Boyce’s MAA Medical Assessment Service Certificate dated 1 July 2009, where he assessed a nil whole person impairment referrable to the accident;
(c)     Dr Pascall’s report of 16 May 2010, where she said that surgery was not indicated;
(d)     Dr Davis’s evidence in his report of 20 February 2009 that surgery was not indicated, despite his prognosis of ongoing impairment and pain, and
(e)     Dr Ashwell’s report of 12 March 2007, in which he diagnosed mild discal injury to the cervical spine as well as soft tissue injury to the lumbar spine, and stated there was no indication for surgery.
The Arbitrator gave no reasons why she preferred Dr Cleaver’s opinion to that of Professor Lance. Dr Cleaver saw Mr Yee on three occasions – 20 January 2010, 10 February 2010 and 7 May 2010 – and recommended surgery on the third occasion. This does not constitute an appropriate basis for according Dr Cleaver’s opinion more weight than Associate Professor Ryan’s opinion.
In light of the above, the Arbitrator erred in finding that discal injury and trauma were present resulting from the accident on 23 August 2006 and in finding that the surgery is appropriate.
On the balance of the medical evidence, there is no reasonable chance of a successful outcome for Mr Yee as a result of the proposed surgery. This submission is based on:
(a)     the evidence that the majority of experts who have examined Mr Yee have not found any pathology or clinical indicator for which surgery of any kind is indicated;
(b)     the Arbitrator’s failure to accord appropriate weight to the evidence of Associate Professor Ryan, where he referred to statistical and scientific studies indicating very low chances of a favourable outcome for the worker should he proceed with the proposed surgery, and
(c)     Associate Professor Ryan’s opinion that Mr Yee has mild degenerative changes in his cervical spine which are likely to be present and asymptomatic in a large proportion of the population of his age, and his observation of pain behaviour by Mr Yee, which was a further significant factor contraindicating a favourable outcome.
In the face of persuasive scientific studies indicating the opposite, the Arbitrator’s preference for Dr Cleaver’s evidence, on the ground that he was the treating surgeon and had examined Mr Yee in detail on a number of occasions, did not provide an adequate or sound basis for finding that there was a reasonable chance of a successful outcome from the surgery. Professor Lance echoed Associate Professor Ryan’s concerns in relation to pain behaviour when he said there was “ample evidence of serious functional overlay”.
In light of the above, the Arbitrator erred in finding that there was a reasonable chance of a successful outcome from the surgery.
As to the cost of the proposed treatment, it was submitted:
(a)     the surgery fails the “reasonably necessary” test on the basis of the cost alone, when compared to conservative treatment such as physiotherapy;
(b)     the cost is excessive when it is considered that the proposed surgery is not usually indicated where a diagnosis for spinal trauma has not been made, where it has not been indicated by the great majority of experts who have provided evidence, and where there are objective statistical and scientific studies which indicate a high likelihood that the outcome will be poor;
(c)     the weight of the expert evidence is in favour of a continuation of conservative measures, and
(d)     on the basis of physiotherapy treatment at $70 per session, Mr Yee’s claim amounts to approximately 1,815 treatments, or weekly physiotherapy for the next 34 years.

The respondent worker’s submissions

The Arbitrator was entitled to accept the evidence from Drs Cleaver and McKee. She found Associate Professor Ryan’s opinion to be inconsistent and not persuasive. She exercised her statutory duty to determine the application fairly and lawfully.
Other than the report of occupational physician, Dr Virginia Pascall, all other reports relied on by the appellant predate Mr Yee consulting Dr Cleaver, the treating orthopaedic surgeon. Dr McKee had available all relevant radiology, along with the earlier doctors’ reports, except Associate Professor Ryan’s, and the Arbitrator exercised sound judgment in placing weight on his report.
It is not required that a successful outcome be had from the surgery. What is required is that the treatment’s potential effect is to alleviate the consequences of the injury and, further, whether or not there is available any alternative treatment (Rose v Health Commission(NSW) (1986) 2 NSWCCR 32 (Rose). As the Arbitrator noted, conservative treatment had been undertaken and had been unsuccessful. No alternative treatment was suggested that would alleviate the pain.
As to the cost of the surgery, the appellant adduced no evidence on this point. As the point was not raised at the arbitration, the appellant is estopped from raising it due to procedural fairness.

DISCUSSION AND FINDINGS

The appellant’s first submission as to the nature of the appeal is incorrect. As the Arbitrator issued her decision after 1 February 2011, the appeal provisions introduced by the Workers Compensation Legislation Amendment Act 2010 apply. Appeals from Arbitrators’ decisions delivered on or after 1 February 2011 are limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error (s 352(5)). The appeal is not a review or new hearing.
Notwithstanding the appellant’s incorrect submission as to the nature of the appeal, it has submitted that the Arbitrator erred in the respects listed at [23] above and I intend to determine if the Arbitrator has erred in the manner alleged.
The submission that the evidence from Associate Professor Ryan and Professor Lance should have been given “special or additional” weight by the Arbitrator and the submission, by inference, that the Arbitrator erred in not doing so is unsupported by any authority and is rejected. The status of a MAC (Associate Professor Ryan’s report) is dealt with in s 326 of the 1998 Act. Such a certificate is conclusively presumed to be correct with respect to the five matters listed in sub-s (1) of s 326. Whether proposed treatment is reasonably necessary as a result of an injury is not a matter on which a MAC is conclusively presumed to be correct. Therefore, the certificate is “evidence (but not conclusive evidence)” in the proceedings (s 326(2)). Similarly, Professor Lance’s evidence is merely evidence in the proceedings that is to be weighed with the other evidence. The evidence from Professor Lance and Associate Professor Ryan is not entitled to any “special or additional” weight, though their positions as independent assessors is a matter that the Commission is entitled to take into account in weighing the evidence overall, especially if the evidence is finely balanced.

The submission that, because he is the treating surgeon, Dr Cleaver’s evidence “cannot be taken to be entirely independent in this matter” is surprising as it implies that, rather than giving his expert opinion, the doctor gave an opinion motivated by some other (unidentified) factor. Without that having been put to the doctor in cross-examination, it is not open to make such a submission on appeal and I reject it. Dr Cleaver’s evidence was evidence the Arbitrator was entitled to take into account in assessing the claim and she was entitled to give weight to the fact that he is the treating surgeon and had assessed Mr Yee on several occasions.
I do not accept that the Arbitrator erred in finding that discal injury and trauma are present resulting from the accident on 23 August 2006. The evidence in support of this finding is in the extensive radiological investigations and the evidence from Dr Cleaver based on those investigations and his clinical examinations. That evidence is of significant disc degeneration at L2/3, in keeping with hyperflexion at high speed over a seatbelt. Plain x-rays dated 10 February 2010 also revealed a degree of segmental instability at L2/3 in keeping with the nature of the injury. The MRI scan of 1 February 2010 revealed disc degeneration at L2/3 and L5/S1, which Dr Cleaver felt correlated “highly” with Mr Yee’s symptoms.
At review on 29 March 2010, after a nerve root block at L3, Mr Yee said that the block gave him about a 50 per cent relief of his symptoms for a short period. Dr Cleaver felt that the nerve block was a highly informative diagnostic tool. The EMG performed on 2 February 2010 was also consistent with bilateral L3 and L5 radiculopathy. Finally, as far as the back is concerned, the discogram on 31 March 2010 reproduced Mr Yee’s pain at L3/4 and L5/S1.
In respect of Mr Yee’s neck, the MRI scan of 30 April 2010 revealed a small to moderate posterior hard disc protrusion at C5/6, causing an indentation on the spinal cord with moderate degenerative changes at that level and at C4/5. The lack of radicular symptoms arising from the neck was not a contraindication for surgery because, in Dr Cleaver’s opinion, Mr Yee needs the surgery for the traumatic injury to his C5/6 disc, which is related to the accident. In addition, Dr Cleaver noted on examination that Mr Yee had a loss of cervical lordosis and a kyphotic deformity at about the level of C5/6.
The Arbitrator also found that, in addition to the discal injury and trauma, Mr Yee’s cervical and lumbar symptoms were due to an aggravation of his constitutional degenerative condition as a result of the accident. In making this finding, the Arbitrator correctly observed that Drs McKee, Cleaver and Boyce supported a causal connection between the accident and the symptoms, and that Dr Ashwell supported a causal connection between the accident and the cervical symptoms. Those findings were consistent with the evidence and open to the Arbitrator.
The Arbitrator did not accept Dr Pascall’s opinion that the symptoms were due to a 2005 injury, because it was inconsistent with contemporaneous evidence that the 2005 injury was a minor one that resolved with analgesics. Nor did the Arbitrator accept Dr Pascall’s opinion that the symptoms were due to an injury in 2008. Both of these findings were open to her.
I do not accept the appellant’s submission that the weight of the medical evidence overwhelmingly establishes that the proposed surgery is not reasonably necessary. Nor do I accept that the Arbitrator erred in her approach or conclusion. The Arbitrator considered the competing medical opinions and accepted the opinion of Dr Cleaver, supported by Dr McKee. It was open to her to do so.
Cases are determined by an analysis of the relevant evidence, not by a simple head count of how many experts accept a particular proposition and how many are opposed to it. The Arbitrator did not accept Dr Robinson’s opinion because, at the time of his examination in May 2007, Mr Yee’s condition was improving with conservative treatment and the doctor thought that he would continue to improve. That proved not to be the case because Mr Yee’s symptoms subsequently became worse and, significantly, in terms of the question now before the Commission, failed to respond to conservative treatment.
The Arbitrator correctly observed that Dr Pascall is an occupational physician and that, as an orthopaedic surgeon, Dr Cleaver is better qualified to assess the need for surgery. That conclusion is supported by Dr Cleaver’s report of 6 September 2010 where he stated that he did not think an occupational physician is “sufficiently qualified to state whether surgery is necessary or not”. That was a matter the Arbitrator was entitled to take into account in her assessment of the evidence.
With regard to Associate Professor Ryan’s evidence, the Arbitrator correctly observed that Associate Professor Ryan referred to degenerative changes in the cervical spine which are likely to be present and asymptomatic in a large proportion of the population of Mr Yee’s age. However, as Mr Yee suffered from symptoms in his neck, which the Arbitrator accepted had been caused by the accident, she did not find Associate Professor Ryan’s reasoning persuasive. That approach and conclusion discloses no error.
Dealing with Associate Professor Ryan’s evidence that there is a statistically low chance of a successful outcome for Mr Yee from surgery, the Arbitrator was more persuaded by the evidence from Dr Cleaver, who had the benefit of a number of consultations with Mr Yee and spent considerable time considering whether or not surgery is likely to benefit him. She was satisfied that there is a reasonable chance of a successful outcome from the surgery, that is, that the surgery is “competent to alleviate the effects of Mr Yee’s injuries” ([56]). She added:
“And that in view of his deterioration, his constant pain and the failure of conservative treatment to assist him, the treatment proposed by Dr Cleaver should be afforded to, and should not be forborne by Mr Yee. Alternatively, it is clear that without the proposed surgery he will undoubtedly continue to experience high levels of pain which conservative treatment has failed to alleviate, and that it is therefore better for him to have the surgery than not to do so (see Bartolo).”
The reference to Bartolo was a reference to Bartolo v Western Sydney Area Health Service (1997) 15 NSWCCR 233), where 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.”
The Arbitrator correctly applied the principles discussed in Bartolo, which have not been challenged on appeal as being incorrect.
The submission that the Arbitrator gave no reasons why she preferred Dr Cleaver’s evidence to that of the other experts in the case is incorrect. First, the Arbitrator referred (at [51]) to Dr Cleaver having given reasons for relating Mr Yee’s condition to the accident, namely, that there was “clear documented electrophysiological evidence in the report dated 2 February 2010 of radiculopathy in the back” and, with respect to the neck, though Mr Yee did not have radicular symptoms, surgery was required as a result of traumatic injury to the C5/6 disc, which was related to the accident.
Second, the Arbitrator preferred Dr Cleaver’s evidence because he was the treating surgeon and had examined Mr Yee “on a number of occasions” ([54]).
Third, the Arbitrator said that Dr Cleaver’s reports and opinions were “detailed, thorough and persuasive and are consistent with the legal authorities discussed above” ([54]).
Fourth, Dr McKee, a qualified specialist, was also of the view that the surgery is reasonably necessary and is related to the accident. In other words, his opinion was consistent with the opinion from Dr Cleaver.
Last, the Arbitrator noted the evidence that Mr Yee had received conservative treatment for over three years, had high levels of debilitating pain and, rather than improving, was deteriorating despite conservative treatment.
The reasons the Arbitrator gave for accepting Dr Cleaver’s evidence were perfectly sound, and consistent with the evidence. The appellant submitted that the fact that Dr Cleaver saw Mr Yee on three occasions does not “constitute an appropriate basis for according Dr Cleaver’s opinion more weight than Associate Professor Ryan’s”. As the above analysis demonstrates, the Arbitrator did not rely solely on the number of times Mr Yee saw Dr Cleaver, which was four not three as submitted, but also referred to other relevant matters. Moreover, a consideration of the attendances on Dr Cleaver and the investigations undertaken is instructive.
Dr Cleaver first saw Mr Yee on 20 January 2010, when he examined the CT scan, which showed significant disc degeneration at L2/3 “in keeping with the nature of his injury” (Dr Cleaver, 12 April 2010). At review on 10 February 2010, Dr Cleaver examined the MRI scan, plain x-ray and the nerve conduction studies, which are discussed at [44] and [45] above.
At review on 29 March 2010, Dr Cleaver discussed with Mr Yee the results of the nerve root block to the L3 nerve, which Dr Cleaver found to be a highly informative diagnostic tool (see [45] above). Dr Cleaver then referred Mr Yee for a discogram of his lumbar spine.
At review on 7 May 2010, Dr Cleaver recorded that Mr Yee felt his symptoms with regard to his back and leg pain were getting worse. He also reviewed the MRI scan of Mr Yee’s cervical spine. As it was three-and-a-half years since the accident and as Mr Yee’s condition was deteriorating and there was evidence of nerve damage in the lumbar spine, Dr Cleaver did not think Mr Yee’s condition could be treated conservatively, and the proposed surgery was reasonable and necessary to treat Mr Yee’s condition.
In light of the several examinations by Dr Cleaver, and the extensive investigations that confirmed the presence of pathology, it was open to the Arbitrator to accept Dr Cleaver’s evidence and to make the finding she did as to the nature of Mr Yee’s injury and the need for surgery.
The submission that there is no reasonable chance of a successful outcome from the surgery is largely (but not wholly) based on Associate Professor Ryan’s reference to studies indicating a low chance of a favourable outcome for the worker. The Arbitrator referred to that evidence and said that she was more persuaded by Dr Cleaver’s evidence, as the treating specialist, in considering whether the surgery is likely to benefit Mr Yee.
Whether any particular treatment is reasonably necessary as a result of an injury must be assessed on a case by case basis with the Commission exercising “prudence, sound judgment and good sense” (Rose). It is not solely a matter for statistical analysis, though that will often be relevant. On balance, the Arbitrator concluded that there is a reasonable chance of a successful outcome from the proposed surgery and that it is better for Mr Yee to have the surgery than to forgo it. That conclusion was open on the evidence and discloses no error.
In light of all the investigations in this matter, the submission that there is no discal injury, or no injury for which surgery is necessary, is untenable.
I do not accept that the proposed surgery fails the “reasonably necessary” test because of the cost alone when compared to conservative treatment. Conservative treatment, such as medication and physiotherapy, has been tried for a lengthy period and has not provided effective pain relief. Professor Lance expressly noted that Mr Yee had not been helped by physiotherapy. Therefore, comparing the cost of surgery to the cost of physiotherapy is not a relevant exercise.
The submission that the cost is excessive when it is considered that the proposed surgery is not usually indicated where a diagnosis for spinal trauma has not been made, where it has not been indicated by the majority of the experts, and where studies indicate a high likelihood of a poor outcome, is simply a repetition of the submissions already considered and rejected above. More importantly, the appellant called no evidence that the detailed costs provided by Dr Cleaver were excessive or inappropriate. It provided none of its own costings, preferring to argue that the surgery was not reasonably necessary.

CONCLUSION

The appellant has not established that the Arbitrator erred in her approach or conclusion and the appeal must fail. The Arbitrator considered the relevant evidence and the parties’ submissions and preferred the evidence of Dr Cleaver, supported by Dr McKee. That was open to her and discloses no error.

DECISION

The Arbitrator’s determination of 29 March 2012 is confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

Bill Roche

Deputy President
6 August 2012

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

[2012] NSWWCCPD 41

6 august 2012